Posted in Law and Justice
Louis Brandeis believed that facts could change lives and break excessive power where it accumulated.
by David Dayen July 30, 2026 (Prospect.org)
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.
“Iam 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.
The radical component of Brandeis’s Progressive Era fulminations was his attack on big business.
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 divisions. They were inherently corrupting, with their boards populated with the same self-interested insiders (he termed them “interlocking directorates”). They suppressed innovation and rejected internal improvements, making them inefficient by temperament and design, the precise opposite of the beliefs held by Robert Bork, the right-wing legal scholar who reversed much of Brandeis’s theories about competition policy in the 1970s.
The trusts were constructed and controlled by financiers with no experience in the trusts’ particular businesses, but much expertise in controlling capital to advantage themselves. Brandeis warned of a financial oligarchy that never took on risk, instead using borrowed cash to build lucrative empires that threatened the nation’s stability. Despite its thunderous reputation, Other People’s Money is mostly laden with dense regurgitations of valuations, shares of stock, and bank deposits. Yet the vigor of his pursuit suggested that Brandeis found the financiers behind monopoly even more distasteful than the monopolies themselves.
But financial control isn’t Brandeis’s primary complaint about bigness. He believed that those robbed of the ability to start their own business or purchase what they please were harmed as citizens, too. “Brandeis stands for the idea that economic independence is a fundamental condition for democratic freedom,” said Zephyr Teachout, a professor at Fordham Law School. There’s no record of him uttering the famous line attributed to him—that we can have a democratic society or concentration of wealth, but not both—yet he would agree with its essence.
He did say another line that speaks to his belief in how facts can change the world: “Sunlight is said to be the best of disinfectants.”
The confrontation that elevated Brandeis as a national icon concerned the New Haven Railroad, which was in the process of rolling up all the rail lines in New England, using a fake subsidiary to purchase the stock of the last holdout, the Boston & Maine. J.P. Morgan was the New Haven’s financial patron, and thanks to its 8 percent stock dividend, practically every businessman in Boston was its champion. But Brandeis, who paid his own firm $25,000 so he could freely work on the matter, pored over the New Haven’s books and found significant financial strain that he said threatened the company’s operations and its dividend.
This outraged the city’s financial elite, who were all heavily invested in the New Haven. They claimed Brandeis was misinformed and driven by anti-bigness monomania. But though the Massachusetts legislature approved the merger in 1909, math was on Brandeis’s side. The New Haven was indeed in terrible financial shape. As stock transfers made middlemen millions, the railroad deteriorated, with a series of deadly crashes attributed to deficient maintenance. The company’s books were riddled with phony accounting. In time, the feds broke up the New Haven, the dividend was eliminated, and railway president Charles Sanger Mellen was ousted. It’s now part of Amtrak.
The 1912 election was described in Matt Stoller’s Goliath as a crossroads for how the nation would wrest democracy back from the frightening business dominance that accompanied the Industrial Revolution. President William Howard Taft, running for re-election, wanted to use existing tools of trust-busting, which were limited by the courts; former President Theodore Roosevelt, who broke from his handpicked successor and founded the Bull Moose Party, believed monopolies were inevitable but could be regulated into becoming benign.
Brandeis backed Woodrow Wilson, someone he had never spoken to until after Wilson clinched the Democratic nomination. After Brandeis wrote one congratulatory letter, Wilson summoned him to his summer cottage in Sea Girt, New Jersey, and they hammered out an entire economic platform over a three-hour working lunch. The program was Jeffersonian where Roosevelt’s was Hamiltonian, regulating not companies but competition by outlawing unfair methods like forced sales, contractual restraints, or price discrimination. It fit Brandeis’s small-government approach, and he thought it would free citizens to pursue their talents. “They believed good people should be given the opportunity to succeed, and if it was opposed by large corporations, that block should be taken away,” Urofsky said.
The country gave their votes to Wilson. While considered too controversial for the cabinet, Brandeis stage-managed a legislative burst that included the establishment of the Federal Reserve, the constitutional amendment allowing an income tax, and two anti-monopoly laws, the Clayton Act and the Federal Trade Commission Act. The former secured prohibitions on unfair practices while allowing the government to challenge mergers that “substantially lessen competition,” rather than just ones that create a monopoly. The FTC could study markets to identify new tactics and prevent consolidation before it formed.
Sen. Elizabeth Warren, the public figure who most closely took on Brandeis’s role as counsel to the situation before entering public office, drew on his approach to government when devising the Consumer Financial Protection Bureau. “The whole point of the CFPB was not new substantive rules, a new rule declaring overdrafts illegal, but instead to change the structure so there was countervailing power to the financial predators,” she said.
The New Freedom was not wholly successful. Despite efforts to decentralize the new central bank, the same lords of finance would come to dominate it. Brandeis disliked the selections for FTC commissioners. And Wilson’s attention drifted amid the Great War and his failing health. It took the Great Depression for the country’s political elite to recognize Brandeis’s warnings. Franklin Roosevelt would eventually institute plans like the separation of commercial and investment banking and the Securities Exchange Act to outlaw stock fraud, which appeared plucked directly from Other People’s Money. (Brandeis reissued the book after the 1929 crash.)
The New Deal, then, delivered on the promise of the New Freedom, and its structure of regulated competition sustained America’s unprecedented shared prosperity in the decades following World War II.
SUCH WAS HIS IMPACT as a private citizen that Brandeis’s Supreme Court career can be addressed as almost an afterthought. The 1916 nomination fight itself, which occasioned a horror among the business class that is today reserved for Bernie Sanders and Zohran Mamdani, was among its most interesting elements. A cartoon from the era showed “Privilege,” “Wall Street,” and “Monopoly” writhing in pain while Brandeis strolls along. At one point, a petition of 55 prominent Boston Brahmins opposing the nomination was circulated, whereupon a lawyer in Brandeis’s office fashioned a chart of all their overlapping financial connections. It was supposed to run in The New Republic, then a house organ for Brandeis allies. “The editor killed it. The owner’s friends and business connections were being called out,” Rosen explained.
Brandeis sat from 1916 to 1939 on a Lochner-lite Court, repeatedly outvoted by conservatives until FDR appointees joined him during his final years on the bench. Yet he believed in the power of dissent to illuminate reason in the minds of men. And he used his familiar blend of facts, animated by America’s principles of individual liberty, to establish a legacy that would eventually convince a nation.
In Whitney v. California (1927), the Court supported punishment for a woman who organized the state’s Communist Labor Party, alleged to be a violent criminal syndicate. Brandeis concurred on technical grounds, but used the case to argue for free speech as a cornerstone of democracy. “Those who won our independence believed that the final end of the State was to make men free to develop their faculties,” he wrote. “They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.”
People must be allowed to hear all sides of the debate, because that is how ideas develop and the national character builds, Brandeis believed. Anything less is arbitrary coercion that breeds repression and hate. “I think Brandeis had very well-developed ideas about citizenship,” said Tim Wu, the former Biden administration competition policy czar who borrowed Brandeis’s title The Curse of Bigness for one of his own books. “The U.S. was meant to be a republic of citizens and not a republic of observers or passive followers.”
The greater assault on liberty came from new technology. Brandeis found Prohibition unworkable precisely because of the police powers it would take to enforce it. A Seattle policeman named Roy Olmstead ran a bootlegging operation, and federal agents got the evidence needed to indict him by tapping the phone wires outside his office and listening in on his conversations. They never actually entered Olmstead’s premises, ruled Taft, promoted to chief justice after his failed re-election, and therefore there was no Fourth Amendment violation.
The broader point Brandeis made was that Americans had the constitutional right to be left alone.
In his dissent, “Brandeis insists on preserving the same amount of privacy in the age of wires as the age of the horse and buggy,” Rosen said. He wanted government kept at the electronic water’s edge, the same way it’s kept outside the home. He also wanted to incorporate in the dissent a new technology he thought would be truly privacy-depriving in 1928: television. But untutored in its operation, he mistakenly believed that those on-screen could see and hear those watching at home. In this, Rosen quipped, he anticipated Zoom.
The broader point Brandeis made in Olmstead was that Americans had the constitutional right to be left alone. If you were compelled to give up your thoughts and beliefs, your freedom to think would be extinguished, the greatest crime of tyrants. “He really believes in the individual conscience and the capacity and ability of people to engage in moral reflection, and that we should support laws and structures to encourage that capacity,” Teachout said. “There is a force in our internal thought processes that actually shapes the world.”
The right to privacy was affirmed by the Warren Court in Griswold v. Connecticut, as was Brandeis’s conception of free speech that should only be abridged to avert serious injury. At a time when constitutional protections—like the right to make private medical decisions with your doctor—are being knocked down by the Roberts Court, Brandeis’s dissents demonstrate to Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson that there is power in building an argument with care and precision, utilizing the facts that surround, that can meaningfully oppose. One day, the nation might just agree with you.
WE ARE TODAY LIVING in the world Brandeis feared. The rule by the one percent, the fusion of big government and big business, the domination of public knowledge by Big Tech and AI platforms, the surveillance economy—the fever dreams of the past are now present, and worse than had been imagined. “Government itself has been weaponized on behalf of the wealthiest,” Sen. Warren told me. “And that means democracy as a tool is under threat in a way that Brandeis didn’t have to confront.”
When a new strain of anti-monopolists who rebelled against the laissez-faire attitudes of the past 40 years sought to give themselves a name, they chose the New Brandeis movement. While I may have been the first to publish that nickname, it was not my invention. But in reviewing Brandeis’s life and work, it fits. Anti-monopolists follow in the American traditions of skepticism toward concentrated power and a desire for human freedom. And like Brandeis, they believe that personal self-governance is necessary for political self-governance.
“He always said that the most important thing a person can be in a democracy was a citizen,” Urofsky said. “As a citizen you not only reap rewards of democracy but have a responsibility to it.”
The epitome of a citizen in Brandeis’s preferred democracy may be his own great-grandson, Paul Brandeis Raushenbush. He leads the Interfaith Alliance, founded to countervail the power of the religious right and Christian nationalism, and more recently supporting faith leaders who are working to shield their neighbors from ICE. “We are saying religion can be the handmaiden to authoritarianism but also its worst enemy,” he told me.
This work has associations with Raushenbush’s other great-grandfather, Walter Rauschenbusch, a leader of the Social Gospel anti-poverty movement of the late 19th century. Brandeis’s daughter Elizabeth married Rauschenbusch’s son Paul in 1925, and the two became leading economists at the University of Wisconsin who authored the first state unemployment compensation law in the nation. Brandeis would successfully lobby FDR for an unemployment insurance component to the Social Security Act of 1935. The late philosopher Richard Rorty was Paul Raushenbush’s cousin.
“This is the vibe,” Raushenbush said.
He talked about Brandeis’s austere summer home on Cape Cod, still owned by the family today, where the mattresses were made of horsehair and a TV had to be rented to watch the political conventions. And he talked about Brandeis’s commitment to serving the people, armed with the facts and common wisdom. He related it to Walter Rauschenbusch, at his church in the slums of Hell’s Kitchen, wondering how the Gospel can uplift a congregation in penury, and his grandparents, in their office in Madison, wondering how someone copes with no job prospects, and how government can help.
“There’s a theme here that is relevant to our lives,” he said. “How am I going to use my skills to impact and love my neighbor?”
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David Dayen
Executive Editor
This article appears in Aug 2026 issue.
David Dayen
David Dayen is the executive editor of The American Prospect. He is the author of Monopolized: Life in the Age of Corporate Power and Chain of Title: How Three Ordinary Americans Uncovered Wall Street’s Great Foreclosure Fraud. He co-hosts the podcast Organized Money with Matt Stoller. He can be reached on Signal at ddayen.90. More by David Dayen
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