Louis Brandeis and the Race Question

Abstract

We live in a culture enamored by our heroes. They are celebrated for their extraordinary accomplishments, and canonized by histories that rarely reflect the true texture of their lives. Legal academics share in these tendencies and, as a result, heroes in the law are often viewed with the same rose-colored glasses accorded to their counterparts in popular culture.

The late Louis Brandeis was an Associate Justice on the Supreme Court of the United States from 1916 to 1939. Born to Jewish immigrant parents, he graduated from Harvard Law School, and gained a reputation as America’s “People’s Attorney.” He pioneered an approach to lawyering and legal analysis that would help defeat segregation as a national policy. While serving on the Supreme Court, Brandeis advocated that judges should make decisions grounded in social and economic realities, and wrote insightful opinions that many historians and commentators have deemed prophetic. As a result, he is considered a revered paragon in American law of the public-spirited lawyer and jurist, and a champion of the rights of all men.

This paper delves beyond this heroic image to critique Brandeis’ conspicuous, though historically overlooked, evasion of issues affecting African-Americans at a time when such avoidance bolstered a segregationist regime. This study will encompass Brandeis’ familiarity with such issues, what Brandeis did or did not do for inter-ethnic relations both as a practitioner and as a jurist, and finally, why the “People’s Attorney” may have chosen to ignore public issues affecting the rights of African-Americans.

Keywords: race, race relations, judge, judging, Supreme Court, African American, black, white, discrimination, racism, civil rights, slavery, minority, minority rights, racial equality, legal history, segregation, due process, equal protection, civil liberties, economic liberties, NAACP, Brandeis brief

JEL Classification: B31, D63, I28, I30, I31, J15, J38, J71, J78, K49