by As Sam Levine notes below, I recently spoke on a panel at BYU’s Religiously Affiliated Law Schools Conference on “Brandeis the Humble, Pragmatic, Prudent Prophet.” “Humble,” “pragmatic,” and “prudent” are not often adjectives associated with prophets, but in Brandeis’s case, I think they fit (as does the noun).
As “the people’s lawyer,” as a citizen, and as a justice, Brandeis spoke forcefully and prophetically on behalf of a number of causes–privacy, workers’ rights, freedom of speech, and Zionism to name a few. His law clerks and FDR referred to Brandeis as “Isaiah.” The Boston Jewish Advocate said that Brandeis was more like Daniel: “a man with a mission to pursue in the framework of a non-Jewish society.” Brandeis told The Advocate that “The Jewish prophet may struggle for truth and righteousness to-day just as the ancient prophets did.”
But prophets often are not very helpful. The Christian political philosopher Oliver O’Donovan (whom everyone should read) has said: “It was an evil day . . . when prophecy became the fashionable category for political reflection in place of practical reasonableness.” The Ways of Judgment xv (2005). O’Donovan contrasts “prophesy” and “practical reasonableness.” In Brandeis, we see the merger of these concepts.
In his famous speech and essay “The Opportunity in the Law,” Brandeis prophetically calls on lawyers to serve the public interests. But in another speech and essay, “The Living Law,” Brandeis calls on lawyers and judges to engage in the continuing “[s]tudy of economics and sociology and politics which embody the facts and present the problems of today” and argues that “a lawyer who has not studied economics and sociology is very apt to become a public enemy.” Brandeis models this focus on economics and sociology, both as a lawyer and a justice. His famous Muller v. Oregon “Brandeis brief” (prophetically arguing for working women) includes three pages of legal arguments and 100 pages of economic and sociological data. Justice Brandeis in Southwestern Bell spends 60 pages illustrating the value of the prudent investor method of determining a reasonable rate of return for public utilities. Even the justices who philosophically disagreed with Brandeis learned to rely on his assessment of economic matters.
Brandeis also displayed a humility that is not characteristic of prophets. To his clerks, he often quoted Euripides: “The worldly wise are not wise, claiming more than mortals know.” I think this was at the root of his advocacy of judicial restraint, but also his advocacy of governmental restraint in general. He was opposed to many New Deal programs, arguing: “The United States is too big to be a force for good; whatever we do is bound to be harmful.” The country “should go back to the Federation idea, letting each State evolve a policy and develop itself. There are enough good men in Alabama to make Alabama a good state.”
Today, I think we have far too much prophetic posturing on both the right and the left. We need the practical wisdom and humility of a few Louis Brandeises.
Too bad no one can resist the idea of wielding this much power. Make no mistake, it is not governance or arete they are interested in (on either side of the aisle) but empire.