The Washington PostDemocracy Dies in Darkness

A famous liberal justice offers a blueprint for Ketanji Brown Jackson

How a trailblazing liberal can move the law leftward despite serving on a right-wing court.

President Biden and Judge Ketanji Brown Jackson watch as the full Senate votes to confirm Jackson as the first Black woman to serve on the U.S. Supreme Court on April 7, 2022, in the Roosevelt Room at the White House. (Kevin Lamarque/Reuters)
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In 1916, a Democratic president nominated a trailblazing pick to the Supreme Court. The nominee had impeccable qualifications and an unusual background representing poor and marginalized people. During a bitter confirmation process tinged with prejudice, opponents smeared the “radical” nominee with unfair attacks. Ultimately confirmed to a conservative Supreme Court, the liberal appointee went on to write many of his most important opinions in dissent.

Sound familiar?

On Thursday, over a century after the Senate confirmed Louis Brandeis, America’s first Jewish justice, the Senate confirmed Ketanji Brown Jackson, America’s first Black female justice, by a 53-to-47 vote. Jackson will face different challenges than Brandeis did. Yet, like Brandeis, she will be faced with trying to move the law leftward while serving on an aggressive and conservative Supreme Court.

Brandeis’s tenure offers lessons on how to overcome this obstacle. These lessons won’t enable Jackson to stop the current court’s lurch rightward. But they can lay the foundation for the law to turn back to the left in the long run.

Brandeis was a legendary lawyer and social reformer before joining the court. The son of Czech immigrants, he grew up in Louisville and settled in Boston. A critic of what he called “the curse of bigness,” Brandeis battled big corporations, monopolists and oligarchs on behalf of workers. Throughout these fights, he pioneered new forms of practicing law. Most notably, he emphasized the importance of considering sociological conditions in deciding cases and inspired a model of pro bono public interest lawyering — innovations that endure in American law today.

His advocacy against concentrated economic and political power created enemies, who later mobilized against his nomination to the Supreme Court. “In all the anti-corporate agitation of the past, one name stands out,” warned the Wall Street Journal. “Where others were radical, [Brandeis] was rabid.” Former president William Howard Taft decried Brandeis as a “socialist” and “hypocrite,” a “man of infinite cunning” and “of much power for evil.” Some of the anti-Brandeis invective had palpable undercurrents of antisemitism.

After a bruising confirmation fight, the Senate confirmed Brandeis by a vote of 47 to 22.

Once confirmed, Brandeis confronted a court decidedly out of sync with his perspective. The court’s majority routinely struck down economic regulations and social welfare legislation, imposing its conservative, laissez-faire values on the country through constitutional law. Its jurisprudence privileged the very corporate interests Brandeis had fought against as a private attorney.

This led Brandeis to write distinctive dissents, which he deployed strategically to maximize their value. When the court made what he viewed as grave errors in constitutional cases, Brandeis didn’t just write critiques aimed at his fellow justices. He penned opinions designed to educate the public. Melvin Urofsky, a legal historian, notes that Brandeis’s dissents taught “the facts of life to a wider audience to get politicians, law professors, students, and others engaged in the dialogue.”

He used clear and accessible prose that non-lawyers could understand, articulating constitutional values that liberals could rally behind. In a characteristic 1933 dissent, for example, he denounced the “the Frankenstein monster which states have created by their corporation laws” to make a larger point about the dangers of the emerging corporate system with power “increasingly concentrated in the hands of a few.” This rhetoric bolstered contemporary reformers and allowed Brandeis to shape the larger public debate.

These dissents also spoke to the future, using imaginative and prescient language embraced by the court as its composition changed. Many of Brandeis’s dissents eventually became majority opinions, including in key cases involving free speech, privacy, labor rights and judicial deference to legislatures and administrative agencies. Brandeis trusted time to vindicate his views. He saw the Constitution as a “living organism … capable of growth,” and the court eventually grew closer to his philosophy.

Brandeis also rejected his colleagues’ efforts to separate law from reality. He infused constitutional law with what he called the “world’s experience,” paying close attention to facts, the motivations of legislators, the struggles of ordinary people and the social impacts of the court’s decisions. In so doing, Brandeis illuminated the logical deficiencies and covert agenda of his conservative colleagues.

In 1917, for example, the court invalidated a Washington state labor law designed to protect workers from abusive private employment agencies.

Brandeis dissented. He began by asking three guiding questions, highlighting pragmatic considerations and key facts absent from the majority’s legalistic opinion: “What was the evil which the people of Washington sought to correct? Why was the particular remedy embodied in the statute adopted? And, incidentally, what has been the experience, if any, of other states or countries in this connection?” He then carefully detailed the problems that private employment agencies created for working people and cited myriad legal and sociological sources to defend the law in question. This approach underscored the flaws of a rigid, formalistic majority opinion blind to reality.

A final lesson: Brandeis understood that the Supreme Court’s constitutional decisions are rarely final. As he explained in a 1923 letter to future Justice (and Brandeis acolyte) Felix Frankfurter, “nothing is ever settled” in the Supreme Court’s “constitutional cases.” Brandeis often partnered with other actors to correct what he thought were bad decisions. He shared creative paths of redress and resistance with legislators and administrative agencies to mitigate the harm created by the court’s conservative majority.

Today’s conservative majority has much in common with the one in Brandeis’s time. The contemporary court ignores the social consequences of rolling back abortion rights or dismantling the federal regulatory apparatus. It conceals its conservative agenda behind technical and neutral-sounding doctrines like “originalism.” And it is unafraid to gut liberal legislation, upending popular laws that protect workers, the environment and voting rights.

Perhaps not surprisingly, liberal justices have embodied different parts of the Brandeisian tradition as the court has moved right over the past few decades. Like Brandeis, Justice Ruth Bader Ginsburg dissented sparingly, but memorably. She provided Congress with road maps to, as she wrote in a 2013 dissent, “correct the error into which this Court has fallen.” Justice Sonia Sotomayor routinely writes powerful dissents that speak to social movements. Her jurisprudence focuses on disadvantaged people and their lived realities, from poor women seeking abortions to death-row inmates. Justice Elena Kagan has inherited Brandeis’s gift for lucid, concise and penetrating writing, as well as his concern with protecting the systems “essential to effective democracy,” to borrow an expression from Brandeis.

Jackson will now add her timbre to this chorus — a chorus that has roots in Brandeis, but no longer belongs to a single justice. Her appointment by itself will not change the ideological composition of the court. But just as Brandeis left a legal legacy not defined by the conservatism of his colleagues, so too can Jackson, in part, by following the lessons of another pioneering liberal to serve on the court.