Back when Yale Law School Professor Akhil Amar was guest-blogging at the VC, he and I had a little back-and-forth about the views expressed in my book, Rehabilitating Lochner. Among other things, Amar wrote in response to my critique of many leading Progressive jurists of the pre-New Deal period:
Bernstein succeeds in establishing that Justice Holmes and several other extreme contemporary Progressive critics of Lochner should not be viewed as heroic figures; their unduly dismissive vision of individual constitutional rights should not have prevailed in the Lochner era and should not prevail today. Alas, much of the rest of Bernstein’s book fails to engage the best criticisms of Lochner, preferring instead to knock down an army of straw men. Bernstein fails to highlight the fact that the most admirable cases of the Lochner era, on which modern case law continues to build, were all joined in relevant part by Justice Brandeis.
In restrospect, I do somewhat regret not treating Brandeis as more of a transitional figure between the harsh anti-rights posture of Justice Holmes and modern liberal concern for civil rights and civil liberties. On the other hand, as noted in the book, Brandeis adopted his rights-protective posture as a second-best solution. In contrast to his reputation as a strong civil libertarian, Brandeis would have preferred to have abolished the Due Process and Equal Protection Clauses entirely. But I’ll conclude that we agree that I should have given Brandeis more credit for moving Progressive jurisprudence in a liberal direction than I did.
Inspired by this dialogue, I have since written an article entitled “From Progressivism to Modern Liberalism: Louis D. Brandeis as a Transitional Figure in Constitutional Law,” which has just been published in the Notre Dame Law Review. Here is the abstract:
This article focuses on the role Justice Louis Brandeis played as a transitional figure in writing opinions that served as a bridge between the statist Progressives of the early twentieth century and mid-century legal liberals. Brandeis was known as a civil libertarian in his day because he supported freedom of speech and labor union rights, which were the rights that the nascent left-leaning civil libertarian movement held most dear. But Brandeis was far from a consistent civil libertarian as the term has been understood since at least the Warren Court period. Nevertheless, Brandeis was responsible for guiding the Progressive wing of the Court away from the more consistently statist, deferential-to-democratic-majorities path charted by Justice Holmes to an agenda more accommodating to libertarian and equalitarian concerns.
Part I of this Article discusses Brandeis’s many deviations from civil libertarianism as it came to be understood in the post-New Deal period. These deviations include his acquiescence to coercive eugenics, his general lack of interest in African American rights, his support for protective labor legislation for women and concomitant disregard for women’s legal equality, his toleration of government abuses attendant to Prohibition enforcement, and his desire to repeal the Fourteenth Amendment.
Part II shows that despite these deviations, Brandeis had a significantly stronger record on civil liberties as a Supreme Court Justice than one would expect from someone of his Progressive outlook and background. Brandeis’s votes in favor of civil liberties created a civil libertarian corpus from the Progressive wing of the Supreme Court. This prevented judicial protection of what became core civil libertarian concerns from being associated primarily with the soon-to-be-discredited “Lochner Court,” and made it much easier doctrinally for later generations of liberal Justices to abandon early twentieth-century Progressivism’s blanket hostility to judicial review in favor of a jurisprudence favoring civil rights and civil liberties.