December 16, 2018

Milestones issued from the jurist’s pen

Dubbed the “People’s Lawyer,” Louis Brandeis took on cases free of fees so that he could address issues beyond the case itself that he thought to be in the public’s interest. It has been said that Brandeis virtually invented the public-interest law firm.

Perhaps this is what led him to be devoted to “smallness” — in business and in government. His opposition to “bigness” in business was not so much for reasons of a functioning economy and efficiency, but rather for the benefit of the people who had to deal with these businesses. He would be mortified by the concept of “too big to fail.” His opposition to big government was based on the belief that smaller governments function better. Brandeis allegedly told a Senate committee, “If the Lord had intended things to be big, he would have made man bigger — in brains and character.”

Woodrow Wilson (for whom Brandeis acted as a consultant) supported a dominant central government. Yet on principle and despite Brandeis’ view on small government, President Wilson nominated Brandeis for the court. Interestingly, Brandeis and Wilson shared a common background of having been born and raised in the South and been impacted and influenced by the Civil War.

Brandeis opposed the excesses of Roosevelt’s New Deal, but did not vote against all or perhaps even most New Deal legislation. But he joined some strenuous opinions striking down laws that in his view threatened democratic accountability and crossed clear constitutional limits on the delegation of executive power. Perhaps most famously, he was part of the unanimous decision in the Schechter Poultry case — the so-called “sick chicken” case — which declared as unconstitutional the National Industrial Recovery Act that had been passed in 1933 and authorized the president to regulate industry to help with economic recovery — a centerpiece of Roosevelt’s New Deal. The court ruled that it had amounted to the unconstitutional delegation of lawmaking power to the president, without providing sufficient guidelines to constrain presidential discretion. 

As part of Brandeis’ resistance to the size and centralization of the federal government, he was what today we would call a “states’ righter.” Consistent with that view, the famous Erie Railroad Co. v. Tompkins case in 1938, well known to every law student in a first-year procedure class, Brandeis overruled the old doctrine that purported to establish a “federal common law” in cases involving jurisdiction based on diversity of citizenship. Brandeis here created the Erie Doctrine, requiring that federal courts apply the law of the state where the injury or transaction occurred, and not some federal vision of what the law is or ought to be. Erie represented a merger of the Brandeis doctrine of smallness, states’ rights, judicial restraint and the rule of judicial construction.

In Constitutional cases, Brandeis felt that the decision should be written as narrowly as possible to avoid broad constitutional rulings. Courts should not “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” Brandeis found what some of us (myself included) believe to be the right middle road between so-called strict constructionism (i.e., taking the words of the Constitution literally) and living constitutionalism (i.e., attempting to read modern meaning into the Constitution). His approach has been called “living originalism.” An excellent description.

Finally, on states’ rights (and federalism), Brandeis allegedly was the first to characterize the states as “laboratories of democracy.” Brandeis was Jeffersonian in believing that small-scale democracy is the most likely to satisfy human needs. In another leading case, Brandeis popularized the concept that a “state may, if its citizens choose, serve as a laboratory, and try novel social and economic experiments without risk to the rest of the country.”

Following the rule of Brandeisian smallness, we stop here.

Bruce Ramer is a partner of Gang, Tyre, Ramer & Brown, a leading entertainment and media law firm. He is a graduate of Princeton and Harvard Law School and serves on the boards of USC, the Corp. for Public Broadcasting and the National Archives Foundation.