Louis Brandeis, known by the nation at the time of his appointment to
the U.S. Supreme Court as “The People’s Lawyer,” and years later
affectionately nicknamed “Old Isaiah” by President Franklin D. Roosevelt,
was one of the greatest jurists and most innovative legal minds in our
country’s history.
Fearful of the concentration of power and committed to the principle that
the Supreme Court has the authority and duty to protect American’s civil
liberties, Brandeis forged new paths in the area of freedom of speech and
the right to privacy that federal courts follow today.
Justice Brandeis’s creative contributions to the world of law, particularly
to our constitutional jurisprudence, began early in his career, well in
advance of his appointment to the Supreme Court. Few know that Brandeis
was instrumental in creating the prestigious Harvard Law Review, molding
modern legal education and raising funds to create an endowed
professorship for Oliver Wendell Holmes ---all within minutes of his
graduation from law school.
Few know that Brandeis experienced serious problems with his eyes
while a law student, which prevented him from reading more than three or
four hours a day, an important factor that contributed to the development of
his prodigious and legendary memory. The issues with his vision, however,
did not prevent him from amassing the best grades ever awarded at
Harvard. Few know that his prominent law practice in Boston, straight out
of school, featured an impressive list of clients, including Mark Twain. Few
know of Brandeis’s reputation for meticulous detail and commitment to
punctuality.
When future Secretary of State, Dean Acheson, began his stint as a
law clerk for Justice Brandeis, he was warned by colleagues about
Brandeis’s lifelong practice of being on time, which he emphasized for
reasons of courtesy and professionalism. Punctuality was one of Brandeis’s
prized virtues.
On one occasion, when Brandeis assigned Acheson to write a legal
memo, he told the young clerk to slide the memo under the front door of his
home, at precisely 5 a.m. At the appointed hour, according to Acheson’s
narrative, he did indeed slide the memo under Brandeis’s front door, only to
feel a hand from the other side grasp the memo.
Brandeis’s novel contributions to American constitutional law began in
earnest while he was a young lawyer practicing in Boston. In 1890,
Brandeis and his law partner, Samuel Warren, whose academic record at
Harvard was second only to Brandeis’s, wrote an article-- “The Right to
Privacy”—for the Harvard Law Review. It was this article that introduced the
right to privacy to America. Brandeis quoted passages of this article in his
famous dissent in Olmstead v. United States (1928), which became the law
of the land in the landmark case of Griswold v. Connecticut (1965).
The argument enjoyed wide appeal within the academic world, the legal
community and across the nation. Indeed, it’s safe to say the reaction to it
was nothing short of remarkable. Brandeis and Warren, it appeared, had
created a new right—the right to privacy, which they believed embodied in
the Constitution. A distinguished Harvard Law School Dean, Roscoe
Pound, stated that the article “did nothing less than add a chapter to our
law.” Over the course of time, scholars hailed it as an example of how the
best academic writing can work an influence on American law. One scholar
observed that article “was perhaps the most influential law journal piece
ever published.”
Brandeis considered the right to privacy inextricably linked to free
speech, both as a check on government and as a human necessity. The
word, “privacy” does not appear in the Constitution, but he had long
believed that it to be one of our most fundamental rights.
In Olmstead, the Supreme Court had held that wiretapping did not
constitute a violation of the Fourth Amendment. In a landmark dissent that
drew upon his 1890 article, Brandeis objected to this invasion of privacy.
“The makers of our Constitution,” he declared, “conferred, as against the
government, the right to be let alone—the most comprehensive of rights
and the right most valued by civilized men.”
The assertion by Brandeis and Warren of a “right to be let alone,” first
promoted in the 1890 law review article and embraced 75 years later by
Justice William O. Douglas in his opinion for the Court in 1965, in Griswold
v. Connecticut, generated curiosity about the motivations behind the article.
Simply put, the origin of the idea for the article stemmed from unwanted
newspaper coverage of private family events which, the authors believed,
deserved to remain, well, private. From there, it was a matter of
determining how important privacy is to those who live in a free country.
The concern about privacy is rooted in our DNA. Afterall, the
objections of the colonists to sweeping searches of their businesses and
homes by English agents in the early 1760s, widely considered to be
unlawful, spurred the discontent that led to the American Revolution. What
Brandeis and Warren did in their groundbreaking law review article, and
what Brandeis did in his Olmstead dissent, was to give voice to a
fundamental right that Americans have always believed to be essential to a
free society—and always will.
David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.
