Although Ketanji Brown Jackson is a first, she will not be approved by the Senate on similar lines to the Thurgood Marshall nomination in 1967, in which he was confirmed 69-11 with opposition limited to opponents of the Civil Rights Act of 1964 and the Voting Rights Act of 1965. I wrote not too long ago on why this is, but her nomination in how the vote will break down bears much more resemblance to another first, that of the first Jewish justice in American history, Louis Brandeis.

The People’s Lawyer

Brandeis was a game changer pick for the Supreme Court, and his first of being Jewish was not even the half of it. He also was known as “The People’s Lawyer” for his progressive advocacy and his battling of big business. Of President Wilson’s three picks for the Supreme Court, Brandeis would prove to be his most notable and celebrated pick. Early in his adult life, he represented business clients and his thinking was within that of the Republican Party. However, in the 1890s he grew increasingly progressive in his views, similar to the journey that Robert La Follette took. In 1890, Brandeis drafted with Samuel Warren a Harvard Law Review article articulating a “right to privacy” which would be adopted by the Supreme Court in Griswold v. Connecticut (1965) in an opinion written by one of his many admirers, William O. Douglas. He ultimately switched to the Democratic Party in 1912 in support of Woodrow Wilson’s progressivism.

The Brandeis Brief

Louis Brandeis won a major victory in the Supreme Court when he presented what became known as the “Brandeis Brief” in the 1908 case Muller v. Oregon, which was revolutionary as he relied far more on scientific evidence and testimony from experts than legal argument, to the order of two pages for legal arguments and 110 pages for evidence and testimony (100). This approach got the praise of none other than Justice David J. Brewer, who had a well-founded reputation as a conservative. The approach of evidence being presented for segregation being unconstitutional in Brown v. Board of Education (1954) was based on the Brandeis Brief.

The Controversial Confirmation

In 1916, President Woodrow Wilson aimed for a double-hitter in his pick to the Supreme Court to succeed Charles Evans Hughes: he wanted a likeminded progressive and the first Jewish person to sit on the court. This nomination was deeply controversial both for his radicalism and that he was Jewish. Conservative senators denounced Brandeis as a radical for his views against big business and remembered bitterly his role against President Taft in the Ballinger-Pinchot controversy. Unlike today with Jackson, both The New York Times and the Wall Street Journal came out against him and denounced him as a “radical”, with the former holding “The Supreme Court, by its very nature, must be a conservative body; it is the conservator of our institutions, it protects the people against the errors of their legislative servants, it is the defender of the Constitution itself. To place upon the Supreme Bench judges who hold a different view of the function of the court, to supplant conservatism by radicalism, would be to undo the work of John Marshall and strip the Constitution of its defenses” (Constitution Center). Former President William Howard Taft as well as former Senator Elihu Root publicly opposed his nomination, regarding him as unfit to serve on the court. Taft went as far as to call the nomination “an evil and a disgrace” and six former presidents of the American Bar Association came out against the nomination (Constitution Center). The former president would ironically develop a good working relationship with Brandeis on the court. Senator Henry Cabot Lodge (R-Mass.), de facto leader of the Senate Republicans, was of the opinion that he was picked only because he was Jewish and was not qualified for the court. Some opponents of Brown Jackson have echoed this argument regarding her being a black woman because of Biden’s promise to pick a black woman beforehand. Senator George Sutherland (R-Utah) repeated a rumor that Brandeis had acted as counsel for United Drug Company, supposedly considered by the Justice Department as an illegal trust (Campbell). In another twist of irony, Sutherland too would join Brandeis on the Supreme Court. He faced multiple accusations about professional conduct largely based on hearsay, but these were either refuted or unproven.

Brandeis was one of two radicals that Wilson appointed to the Supreme Court, the other being John Hessin Clarke. It should be noted that although Brandeis’ nomination was controversial, the similarly progressive (although perhaps not as notoriously so) Clarke got a unanimous confirmation. This can be viewed as Clarke having had a history as an effective federal justice (while Brandeis was a trial lawyer) and possibly due to the fact that he was not Jewish. Louis Brandeis was confirmed 47-22 on a largely partisan basis, with Senators George Norris of Nebraska, Miles Poindexter of Washington, and Robert La Follette of Wisconsin voting for on the Republican side while only Nevada’s Francis Newlands voted against on the Democratic side. Republican Senators Moses Clapp of Minnesota and Asle Gronna of North Dakota paired for. The five Republicans who approved of Brandeis’ nomination were all on the progressive wing of the party. It is a testament to the influence of Wilson over Southern Democrats that there was not a single “nay” vote among them.

Brandeis would serve on the court for 23 years, and in he would stand as one of the most influential members in the history of the court as well as one of the more progressive members. He was one of the justices more inclined to defend the Roosevelt Administration’s laws (The Three Musketeers), but he had his limits: he voted to strike down the Frazier-Lemke Farm Mortgage Act and joined the unanimous court in striking down the National Industrial Recovery Act. As a classic progressive, Brandeis feared bigness in business and thought that it was possible for government to go too far in this direction as well. His influence on the law was such, however, that conservatives of the day were correct to fear his impact: he made possible the broad right to privacy adoption in the Constitution that Roe v. Wade (1973) has basis in, among other things. Justice William O. Douglas (1964) would later write on the confirmation battle, “Brandeis was a militant crusader for social justice whoever his opponent might be. He was dangerous not only because of his brilliance, his arithmetic, his courage. He was dangerous because he was incorruptible … [and] the fears of the Establishment were greater because Brandeis was the first Jew to be named to the Court”.

P.S.: I think Jackson will be confirmed 52-48, with Democrats being unanimous and Senators Lisa Murkowski of Alaska and Susan Collins of Maine joining them. I believe this because only three Republican senators voted for her to be on the D.C. Circuit, and those were Murkowski, Collins, and Graham, and the latter will not be voting for her for this one.

References

Atwell, M.W. (2009). Louis Brandeis. The First Amendment Encyclopedia.

Retrieved from

https://mtsu.edu/first-amendment/article/1316/louis-brandeis

Campbell, S. (2020, August 4). A Timeline of Louis D. Brandeis’s Confirmation – Part 1. Brandeis and Harlan Watch.

Retrieved from

https://brandeiswatch.wordpress.com/2020/08/04/a-timeline-of-louis-d-brandeiss-confirmation-part-1/

Douglas, W.O. (1964, July 5). Louis Brandeis: Dangerous Because Incorruptible. The New York Times.

Hall, K.L., Ely, J.W., & Grossman, J.B. (ed.) (2005). The Oxford companion to the Supreme Court of the United States. New York, NY: Oxford University Press.

On this day, Louis D. Brandeis confirmed as a Supreme Court Justice. (2021, June 1). National Constitution Center.

Retrieved from

https://constitutioncenter.org/interactive-constitution/blog/louis-brandeis-confirmed-as-justice

To Confirm the Nomination of Louis D. Brandeis, to be an Associate Justice of the Supreme Court. Voteview.

Retrieved from

https://voteview.com/rollcall/RS0640147