They called it a “Brandeis brief.” When the great attorney Louis Brandeis wrote a legal brief in a constitutional case, it was short on legal theory and packed with so many facts that it required a sturdy binding and a solid arm for hefting. In 1908 the brief he submitted to the Supreme Court in Muller v. Oregon—he successfully defended that state’s ten-hour workday for women laborers against an industry attack—became an instant legend, running to 113 pages and reading like an earnest encyclopedic entry on the ills of modern factory life. Such a document necessarily relied on interdisciplinary research, which was one of the Brandeis brief’s main innovations. Economic data, labor reports, foreign sources, academic studies—the brief summoned an army of facts. This was highly unorthodox. Lawyers at the time were expected to make an argument, cite the pertinent cases and statutes and wrap things up.
When Brandeis joined the Supreme Court in 1916, at 59, he fashioned his opinions in the same exhaustive manner. He was officially the first justice to cite a law review article in an opinion, and unofficially the first to cite Bakers Weekly (in a case involving a law that standardized weights for loaves of bread). He once even cited The Nation in a dissent, if only for its convenient reproduction of one of Thomas Jefferson’s speeches. One Thanksgiving his law clerk (and a future secretary of state) Dean Acheson was over for dinner, and Brandeis sounded off about the French, who were trying to renegotiate loans entered into during World War I. Acheson considered arguing a little with his boss by pointing out France’s contributions to Western civilization but later admitted, “I knew he would floor me by quoting their export statistics for the same years, so I gave it up.”
Like Dickens’s Gradgrind, Brandeis wanted facts. He had a bathtub filled with clippings and articles—a reservoir of data waiting to be tapped. During his thirty-nine years as an attorney in private practice in Boston, he devised an arduous habit: upon taking on a new client, he holed up and learned everything he could about its business, and more important, its opponent’s. A masterful cross-examiner, Brandeis was able on more than one occasion to trip up a hostile witness, wielding a better understanding of the opposing firm’s affairs than its own president did.
As a constitutional matter a Brandeis brief—or opinion, or dissent—makes a certain amount of sense. After all, one of the ingenious hallmarks of the Constitution is its brevity: the text yields few ready answers and is frequently perceived by jurists as an invitation to make talismanic divinations. “Congress shall make no law respecting an establishment of religion”; “unreasonable searches and seizures” shall be prohibited; states shall deny no person “the equal protection of the laws.” What do these vague, Olympian commandments from the First, Fourth and Fourteenth Amendments mean, exactly? Is it an “establishment” of religion to display a cross on public property? To allow an invocation before a high school basketball game? To print “In God We Trust” on the currency? To a certain extent these types of questions can be answered by studying the bedrock and sediment of the common law: look for what courts have done in similar cases and analogize from that. But in a novel case facts can be more helpful than precedents, as Brandeis demonstrated many times over.
He was also a lifelong champion of the “living” Constitution—the view that if the Constitution is to endure, it must evolve to meet society’s changing needs. Today this common-sense premise is hotly disputed by judges who seem to want to keep the gallows busy and the women in the kitchen. It was less controversial in Brandeis’s time, although it didn’t always carry the day. In Olmstead v. United States (1928), for instance, the Court held in a formalistic opinion that the police’s use of a new evidence-gathering technology called wiretapping was not a search or seizure under the Fourth Amendment, since no doors were kicked in or papers removed. In his dissent, Brandeis uncharacteristically put aside facts to summon the kind of stirring eloquence that his colleague Oliver Wendell Holmes Jr. regularly brought to the bench: