The Brandeis Brief, Revisited



by George W. Liebmann



To the Bag:

David Bernstein’s essay on the Brandeis brief (Autumn 2011)


does not describe “winner’s history;” (page 15); Brandeis’ concerns


with Supreme Court treatment of constitutional cases involving


state governments remain largely unaddressed today.


Moreover, it is simply not true that “ Lochner was an anomaly, not

the leading edge of a Supreme Court war on progressive legislation.”(


page 11). One alleged “standard myth” (page 9) should not be


succeeded by another. Post- Lochner decisions included Adair v. United States

1 and Coppage v. Kansas2 invalidating federal and state laws bar-

ring employers from requiring that workers not join unions,

Adkinsv. Children’s Hospital  and Morehead v. Tipaldo4 invalidating federal and

state minimum wage laws for women,

Adams v. Tanner,5invalidating

a statute limiting employment agency fees, and other cases felling


like duck-pins various state price regulations and licensing laws.


Bernstein’s derision of Brandeis’ “hodgepodge” of reports should


not obscure the central point of the much-maligned ‘realists’ and


‘progressives’: in a democracy, the law should be empirical, not a


deduction from vague and constitutionally undefined notions of


‘natural right’ or ‘class legislation.’ That was the opening salvo of


Holmes’ book on the Common Law: “The life of the law has not been

logic, it has been experience. The felt necessities of the time, the


prevalent moral and political theories, intuitions of public policy,


avowed or unconscious . . . have had a good deal more to do than


the syllogism in determining the rules by which men shall be governed.” 


This view derived, as Edmund Wilson7 and Louis Menand




have shown in their essays on Holmes, not on a worship of force but


on an abhorrence of it, founded on experience.


Economic doctrines over time have displayed a certain mutability.


So have views as to appropriate sex roles. “The judicial economics


that Robert Bork treats with such scorn is, after all, the blueribbon


opinion in economics of a generation back.”

The Freudian thirties, in which gender was everything, have given way to the era


celebrated by Bernstein in which we are assured that gender is totally


unimportant. The Brandeis brief as a corrective of judicial naivete is a messy


device, but one that has not outlived its usefulness. It was employed


by the present writer in an amicus brief on behalf of state governments


cited in both the majority and dissenting opinions in

San Antonio v. Rodriguez The administrative law scholar Kenneth Culp Davis

noted the limitations of the adversary process in constitutional


cases: “Penalizing a litigant for a failure of his counsel may be appropriate


on a narrow question of private law, but it is inappropriate


for overriding law enacted by state legislatures.”

 The abortion and contraception cases were decided on inadequate records; the same is true of the Lawrence ‘gay rights’ case; the California Attorney General12

and U.S. Solicitor General have labored assiduously to insure


that equally inadequate records will underpin the ‘marriage’ cases


currently en route to the Supreme Court.


“Of course,” Professor Davis noted, “the Supreme Court should


not replace its accustomed procedure with notice and comment


procedure.” He noted that it has on occasion appointed special masters


to supplement inadequate records  and allowed responses by

motions for rehearing to judicially noticed facts.

 But the true remedy is, as Davis said, judicial restraint and respect for the rights of


non-parties. That lesson of the Brandeis brief has not been invalidated,


nor has it been adequately heeded.


George W. Liebmann


Baltimore, MD


Posted in: Judiciary and Legal Issues, Publications

Tags: , ,