Louis Brandeis' partial justice: how the famous jurist shaped--and misshaped--American law.

• Author: Root, Damon W.
• Position: Louis D. Brandeis: A Life - Book review

Louis D. Brandeis: A Life, by Melvin L Urofsky, Pantheon Books, 976 pages, $40

IN JUNE 1928, the Harvard law professor and future Supreme Court justice Felix Frankfurter received a letter from his patron and ally, Supreme Court Justice Louis Brandeis. In it, Brandeis gave the perfect quick description of the constitutional philosophy he had been honing during the previous five decades, first as one of America's leading lawyers and then on the nation's highest court, where he sat from 1916 until 1939.

"In favor of property," Brandeis wrote, "the Constitution is liberally constructed--in favor of liberty, strictly." In other words, when it came to laws restricting property fights and economic freedom, the courts should defer to the judgment of lawmakers and vote to uphold the vast majority of regulations, a practice known then and now as judicial restraint. But when it came to laws restricting "liberty," by which Brandeis meant free speech, the fight to privacy, and other civil liberties, the courts should carefully scrutinize each law and, if they detected the slightest whiff of unconstitutionality, strike it down without hesitation.

That double standard, which asks the courts to favor some fights over others, has dominated the American legal system since the late 1930s, essentially leaving economic liberty at the mercy of state and federal lawmakers while "fundamental" rights receive aggressive judicial protection. As Melvin Urofsky, a historian at Virginia Commonwealth University, helps explain in his exhaustive and sympathetic new biography, Louis D. Brandeis: A Life, no one did more to bring about this uneven state of affairs than Brandeis himself.

Born in a856 to a family of wealthy Bohemian immigrants in Louisville, Kentucky, Louis Brandeis "had the good fortune," Urofsky writes, "to live in an age when the causes that mattered to him could be shaped by a man with a powerful vision and the intellect and personality to transform ideas into action." We call that age the Progressive Era, named after the idealistic reformers who drastically expanded the size and scope of the regulatory state between roughly 1890 and 1920. After graduating from Harvard Law School and establishing himself as one of the country's wealthiest and most successful lawyers, Brandeis was soon "counted among the preeminent progressives of the era."

A brilliant attorney and skilled political operative, Brandeis left an impressive record. As a judicial champion of...