This article appears in the August 2026 issue of The American Prospect magazine. If you’d like to receive our next issue in your mailbox, please subscribe here.
“I am no theorist,” Louis Brandeis stated bluntly in the Hastings, Nebraska, Daily Republican on February 3, 1912. “I have had a large experience and I know what I am talking about.”
It’s rare to unearth a quote that gives you the full measure of a man, especially someone as varied in his interests as Brandeis. His biographer, historian Melvin Urofsky, segments his life into four careers: attorney, Progressive reformer, Zionist (out of nowhere as he approached the age of 60), and Supreme Court justice. He practically invented the concept of pro bono legal work; he revolutionized operations in the insurance, railroad, utility, and textile industries; he was a leading critic of Gilded Age monopoly trusts and the financial machinery behind them; he inspired and substantially wrote Woodrow Wilson’s “New Freedom” economic agenda; and his landmark dissents on free speech and the right to privacy eventually became the prevailing standard in American law. But throughout all of this, Brandeis relied upon what he could see—often barely, as he had such vision trouble that fellow students had to read to him at Harvard Law so he could keep up with the workload—with his own two eyes.
Brandeis’s upbringing in Louisville, Kentucky, where his family traded grain, gave him insight into how honest businesses and farmers could achieve economic freedom. The family business was liquidated before the Panic of 1873 sent the country into a deep recession, seeding his distrust of financial engineering. His early career as a corporate lawyer taught him how well-meaning regulation could be defeated with armies of loophole hunters. He often won reforms by learning more about corporate titans’ businesses than even they knew. And his major contribution to America’s courtrooms, the Brandeis brief, was nothing more than a recitation of facts as a basis for applying law. “He called the Brandeis brief ‘what any fool knows,’” said Jeffrey Rosen, George Washington University law professor and author of Louis D. Brandeis: American Prophet.
A statue on the campus of the university outside Boston that bears his name includes a quote Brandeis delivered in a dissent in Jay Burns Baking Co. v. Bryan (1924), a case about regulation of standard bread weights in Nebraska that feels trivial for such a definitive proclamation: “If we would guide by the light of reason, we must let our minds be bold.” The line before that in the dissent is even more on point: “Knowledge is essential to understanding, and understanding should precede judging.”
The knowledge in that instance, which Brandeis laboriously chronicled with legislative testimony, World War I Food Administration reports, and excerpts from the trade publication Bakers Weekly, involved the schemes for “short-weighting” bread loaves by a few ounces to overcharge unsuspecting customers, the numerous ways state and federal regulators had sought to outlaw such villainy, and why scrupulous bread makers suffered no appreciable cost from the rules, and indeed were relieved of the chore of “constantly watching the juggling of weight by their competitors” rather than producing quality products at a fair price.
Brandeis was as concerned with the realities of breadmaking as he was with any realities, but this recounting had a point: to admonish the Court for substituting their own judgment about the burdens of regulations over that of officials elected by the people. This offended him as “an exercise of the powers of a super-legislature—not the performance of the constitutional function of judicial review.”
Sound familiar?
AMERICA AT ITS BIRTH REBELLED at the centralized nature of the British Empire and embraced—at least rhetorically—a new form of political organization, where artisans and farmers and small merchants could exercise self-governance, take charge of their own lives, and reach their full potential. Brandeis, with his faith in democracy and trust in the people, was an heir to this tradition and to one Founder’s vision in particular. “I see him as the Jewish Jefferson,” said Rosen, who somewhat amazingly studied under one of Brandeis’s last law clerks, David Riesman.
Even Brandeis’s Zionism, a surprise given that he was never a practicing Jew, was more about building a model society than religiously inspired. He imagined a Jewish homeland in Palestine as a small-unit, agrarian collection of kibbutzim, removed from the social discord that industrialization had brought to Gilded Age America. In his naïveté, he declared that the economic benefits of this organization would bring the two peoples together. “I don’t think he would be very happy with Israel now,” Urofsky told me.
As a young attorney in Boston, Brandeis merged his Jeffersonianism with relentless practicality. He was hired to resolve a shoe manufacturer’s labor dispute: He ended up restructuring the regional shoe business so workers received more consistent pay. When the Boston Consolidated Gas Co. formed a monopoly, Brandeis proposed a “sliding scale” plan where the company’s dividend could only increase if it lowered prices for customers. He proved that railroads could save $1 million a day through scientific management—reorganizing their repair shops, more efficiently laying track—which regulators used as justification for lowering rates. When insurance policyholders hired Brandeis to protect them from the abuses of term life companies, which funneled 40 cents out of every dollar in premiums to executive salaries, agent commissions, and shareholder dividends, he came up with having savings banks sell the product, which drove commercial insurance prices down through competition.
“A lot of reformers complained about things,” Urofsky explained. “But once Brandeis identified a problem he came up with a solution.”
In working out these compromises, Brandeis referred to himself as “counsel to the situation.” In exchange, he asked for no money, which burnished his reputation as The People’s Lawyer. He could work pro bono because his law firm was extraordinarily lucrative; his partner’s family owned a successful paper mill and became the firm’s first client. Attending to the needs of the public was kind of Brandeis’s hobby. “I don’t want money or property most,” he said once to an interviewer. “I want to be free.”
This experience also gave him understanding of how even careful compromises could falter. “He thought that as an attorney … he could work out contractual relations that were mutually satisfying across the gulf of power,” said Gerald Berk, professor emeritus of political science at the University of Oregon and another Brandeis biographer. “And then he realized, ‘Wait a minute. These guys will abuse this power.’”
This understanding sparked Brandeis’s antipathy toward any unchecked ability to impose conditions over man. “He is somebody who was extraordinarily consistent about his skepticism of concentrated power, regardless of whether it was coming from the commercial sector or from government,” said Lina Khan, former chair of the Federal Trade Commission. Indeed, in his crackdown on fraudulent life insurance, a reform he considered the crowning accomplishment of his life, he countered with a private bank option, not a public option.
This would prove uncomfortable to liberals when the Democratic hero voted to strike down a few New Deal programs on the Supreme Court. But big government wasn’t really a feature of pre–New Deal America; the radical component of Brandeis’s Progressive Era fulminations was his attack on big business.
IN “A CURSE OF BIGNESS” and a series of articles in Harper’s that were collected into the book Other People’s Money—and How the Bankers Use It, Brandeis wrote his briefs against corporate power. He considered consolidated trusts too big to manage; it was impossible for their leaders to track so many