From progressivism to modern liberalism: Louis D. Brandeis as a transitional figure in constitutional law.

• Author: Bernstein, David E.
• Position: The Evolution of Theory: Discerning the Catalysts of Constitutional Change

INTRODUCTION

Many early-twentieth-century Progressives (1) believed that the Constitution reflected anachronistic liberal individualism and natural rights ideology. (2) Occasional judicial decisions that thwarted their favored reforms provoked them further. As a result, some Progressive intellectuals, especially those associated with the pro-labor-union political left, became overtly hostile to the Constitution. (3)

Even those Progressives who were more favorably inclined to the Constitution typically loathed judicial review. Progressives thought that judicial review was undemocratic and that it put too much power over public policy in the hands of non-expert judges. (4) Leading Progressive politicians, including Theodore Roosevelt, (5) Senator William Borah, (6) and Senator Robert LaFollete, (7) sought in the 1910s and early 1920s to protect Progressive legislation by limiting judicial independence and the power of judicial review.

Progressive hostility to judicial review most often manifested itself in criticism of judicial opinions blocking labor and other regulations. But with the partial, post-World War I exception of freedom of expression--which was justified by Progressives not as an individual right but as a necessity for democracy to function properly in the public interest--thinkers on the Progressive left were typically as opposed to judicial intervention on behalf of what we now call civil liberties as they were to judicial intervention on behalf of economic rights. (8) For example, in his extremely influential book Progressive Democracy, Herbert Croly criticized the Bill of Rights for turning the Constitution "into a monarchy of the Law superior in right to the monarchy of the people." (9) Morris Cohen, meanwhile, questioned the legitimacy of using judicial authority to invalidate legislation that infringed on individual liberty. (10)

Leading Progressive jurists naturally tended to be less hostile to the judiciary than were Progressives who were not attorneys. Nevertheless, these jurists strongly opposed judicial invalidation of economic legislation. They also were usually at best uninterested injudicial attention to civil libertarian concerns of the sort that helped define the liberal constitutionalism of the post-New Deal period.

Edward Corwin, anticipating the victory of Progressive constitutionalism, asserted in 1934 that the "twilight of the Supreme Court" was at hand. (11) As Corwin predicted, the New Deal ultimately triumphed over constitutional objections and the Supreme Court stopped seriously reviewing the constitutionality of economic legislation. Leading Progressive jurists such as Hugo Black and Felix Frankfurter joined the Court, and informed observers expected that the Court's significance in American life would fade.

Contrary to expectations, however, the Supreme Court managed to retain its former significance--and then some--by gradually dispensing with Progressive hostility to judicial review and greatly expanding constitutional protections for civil liberties and civil rights. (12) This was met with general approbation in liberal circles. (13)

Indeed, among jurists who considered themselves to be on the non-Communist political left, the middle of the twentieth century witnessed a dramatic shift. Mainstream opinion in these circles evolved from an often statist or at least majoritarian and anti judicial-review Progressivism to a liberal jurisprudence that supported a much broader civil libertarianism than even Progressive civil libertarians had fathomed. The Progressives' strong aversion to a significant judicial role in American politics and government morphed into approval of strong judicial activism when it favored civil libertarianism and racial equality. (14) This shift has received surprisingly little attention from scholars. (15)

In Rehabilitating Lochner, I suggested several "externalist" reasons why New Dealers abandoned the statism of their Progressive forebears in favor of civil libertarianism:

First, judicial regard for civil liberties allowed New Dealers, within and outside the Court[,] to plausibly claim that they were committed to preserving individual rights even while vastly expanding the size and scope of the federal government. And while by the 1930s the Court's liberty of contract decisions were very unpopular, its tentative forays into civil libertarianism ... had received general public approbation. These decisions were especially popular among the ethnic and religious groups that formed the core of the New Deal coalition. Second, judicial restraint always looks better when your side doesn't control the courts. Once the "left" took over the Supreme Court, the idea that the justices should always defer to state legislatures became far less attractive.... Third, the New Deal coalition included many intellectuals with a decidedly modern liberal, as opposed to old-fashioned Progressive, ideological bent.... Fourth, the enthusiasm for government activism that the New Dealers inherited from the Progressives was tempered by the rise of fascism in Europe.... Fifth, the elite bar received part of its prestige from the prominent role the Supreme Court played in American life. Once it became clear that the old constitutional order based on property rights and limited government was dead, elite attorneys quickly became advocates of an expanded role for the Supreme Court in protecting freedom of expression and minority rights.... Finally, and for many of the reasons noted above, the Roosevelt administration encouraged the Supreme Court's emerging civil liberties jurisprudence. (16) All of these factors deserve further exploration. They also need to be considered not just in light of the jurisprudence of the late 1930s and 1940s, but in light of the Warren Court's increasingly assertive civil libertarianism in the 1950s and 1960s.

In this Article, however, I will focus on an "internalist" consideration, the role Justice Louis Brandeis played as a transitional figure in writing opinions that served as a bridge between the statist Progressives of the early twentieth-century and mid-century legal liberals.

Brandeis was known as a civil libertarian in his day because he supported freedom of speech and labor union rights, which were the rights that the nascent left-leaning civil libertarian movement held most dear. (17) But Brandeis was far from a consistent civil libertarian as the term has been understood since at least the Warren Court period.

Nevertheless, Brandeis was responsible for guiding the Progressive wing of the Court away from the more consistently statist, deferential-to-democratic-majorities path charted by Justice Holmes to an agenda more accommodating to libertarian and equalitarian concerns. (18) As we shall see, Brandeis refused to join a draft Holmes opinion endorsing state-imposed housing segregation. (19) Brandeis also declined to join Holmes's dissent in Meyer v. Nebraska, (20) a seminal due process case. Both of these decisions by Brandeis ran contrary to general sendment in Progressive legal circles at the time. Brandeis also famously advocated strong judicial protection for freedom of speech, likely influencing Holmes in the process. Finally, despite his general support for government action to enforce Prohibition, Brandeis wrote a famous dissent in Olmstead v. United States (21) that Warren Court Justices later cited to justify a variety of liberal judicial opinions.

Part I of this Article discusses Brandeis's many deviations from civil libertarianism as it came to be understood in the post-New Deal period. These deviations include his acquiescence to coercive eugenics, his general lack of interest in African American rights, his support for protective labor legislation for women and concomitant disregard for women's legal equality, his toleration of government abuses attendant to Prohibition enforcement, and his desire to repeal the Fourteenth Amendment. Part II shows that despite these deviations, Brandeis had a significantly stronger record on civil liberties as a Supreme Court Justice than one would expect from someone of his Progressive outlook and background. Brandeis's votes in favor of civil liberties created a civil libertarian corpus from the Progressive wing of the Supreme Court. This prevented judicial protection of what became core civil libertarian concerns from being associated primarily with the soon-to-be-discredited "Lochner Court." (22)

1. BRANDEIS WAS NOT A CONSISTENT CIVIL LIBERTARIAN

   Not all early twentieth-century jurists with Progressive inclinations were identified with the political left. Among those who were, few had sensibilities similar to the liberal Earl Warrens and William Brennans of a later period. Progressive opposition to judicial interference with economic regulation combined with Progressivism's majoritarianism, positivism, and enthusiasm for entrusting governing matters to social science experts led Progressives to be skeptical of judicial power. (23)

   Progressives interested in legal matters typically determined the merit of a Supreme Court Justice primarily by how deferential his rulings were to economic regulation. Justices Brandeis and Holmes were the most consistent and persistent supporters of judicial restraint in economic matters in the pre-New Deal period, and therefore became the most admired Justices by far among the left-leaning Progressive cohort. (24)

   The epic battle over the constitutionality of New Deal legislation cemented a Manichean understanding of the Supreme Court and its Justices. The "Four Horsemen" who opposed the New Deal were deemed evil reactionaries whose jurisprudence, including their pre-New Deal jurisprudence, must be utterly discredited. (25) Brandeis, Holmes, and their judicial allies and successors, meanwhile, were the heroes of the story.

   Brandeis's and Holmes's heroic status should have created some dissonance for the liberal left when strong judicial action on...