{"id":49514,"date":"2026-08-02T13:56:02","date_gmt":"2026-08-02T20:56:02","guid":{"rendered":"https:\/\/occupysf.net\/?p=49514"},"modified":"2026-08-02T13:56:09","modified_gmt":"2026-08-02T20:56:09","slug":"louis-brandeis-the-empiricist","status":"publish","type":"post","link":"https:\/\/occupysf.net\/index.php\/2026\/08\/02\/louis-brandeis-the-empiricist\/","title":{"rendered":"Louis Brandeis: The Empiricist"},"content":{"rendered":"\n<figure class=\"wp-block-image\"><img decoding=\"async\" src=\"https:\/\/i0.wp.com\/prospect.org\/wp-content\/uploads\/2026\/07\/AUG26-Brandeis.jpg?fit=2000%2C1500&amp;ssl=1\" alt=\"\"\/><figcaption class=\"wp-element-caption\">Credit:&nbsp;Illustration by Lyndon Hayes for The American Prospect<\/figcaption><\/figure>\n\n\n\n<p><strong>Posted in&nbsp;<a href=\"https:\/\/prospect.org\/category\/justice\/\">Law and Justice<\/a><\/strong><\/p>\n\n\n\n<p>Louis Brandeis believed that facts could change lives and break excessive power where it accumulated.<\/p>\n\n\n\n<p><img decoding=\"async\" loading=\"lazy\" srcset=\"https:\/\/prospect.org\/wp-content\/uploads\/2025\/10\/cropped-DAVID-DAYEN_CIRCLE-160x160.png 2x\" height=\"80\" width=\"80\" src=\"https:\/\/prospect.org\/wp-content\/uploads\/2025\/10\/cropped-DAVID-DAYEN_CIRCLE-80x80.png\" alt=\"David Dayen\">&nbsp;by&nbsp;<strong><a href=\"https:\/\/prospect.org\/author\/david-dayen\/\">David Dayen<\/a>&nbsp;<\/strong>July 30, 2026 (Prospect.org)<\/p>\n\n\n\n<p><em>This article appears in the&nbsp;<a href=\"https:\/\/prospect.org\/archive\/aug-2026-issue\/\">August 2026<\/a>&nbsp;issue of<\/em>&nbsp;The American Prospect&nbsp;<em>magazine.<\/em>&nbsp;<em>If you\u2019d like to receive our next issue in your mailbox, please&nbsp;<a href=\"https:\/\/simplecirc.com\/subscribe\/the-american-prospect\">subscribe here<\/a>.<\/em><\/p>\n\n\n\n<hr class=\"wp-block-separator has-alpha-channel-opacity\"\/>\n\n\n\n<p>\u201cIam no theorist,\u201d Louis Brandeis stated bluntly in the Hastings, Nebraska,&nbsp;<em>Daily Republican<\/em>&nbsp;on February 3, 1912. \u201cI have had a large experience and I know what I am talking about.\u201d<\/p>\n\n\n\n<p>It\u2019s 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\u2019s \u201cNew Freedom\u201d 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\u2014often 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\u2014with his own two eyes.<\/p>\n\n\n\n<p><a href=\"https:\/\/prospect.org\/author\/david-dayen\/\"><strong><em>More from David Dayen<\/em><\/strong><\/a><\/p>\n\n\n\n<p>Brandeis\u2019s 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\u2019 businesses than even they knew. And his major contribution to America\u2019s courtrooms, the Brandeis brief, was nothing more than a recitation of facts as a basis for applying law. \u201cHe called the Brandeis brief \u2018what any fool knows,\u2019\u201d said Jeffrey Rosen, George Washington University law professor and author of&nbsp;<em>Louis D. Brandeis: American Prophet<\/em>.<\/p>\n\n\n\n<blockquote class=\"wp-block-quote\">\n<p>The radical component of Brandeis\u2019s Progressive Era fulminations was his attack on big business.<\/p>\n<\/blockquote>\n\n\n\n<p>A&nbsp;<a href=\"https:\/\/www.brandeis.edu\/rose\/lightofreason\/index.html\">statue<\/a>&nbsp;on the campus of the university outside Boston that bears his name includes a quote Brandeis delivered in a dissent in&nbsp;<a href=\"https:\/\/supreme.justia.com\/cases\/federal\/us\/264\/504\/\"><em>Jay Burns Baking Co. v. Bryan<\/em><\/a>&nbsp;(1924), a case about regulation of standard bread weights in Nebraska that feels trivial for such a definitive proclamation: \u201cIf we would guide by the light of reason, we must let our minds be bold.\u201d The line before that in the dissent is even more on point: \u201cKnowledge is essential to understanding, and understanding should precede judging.\u201d<\/p>\n\n\n\n<p>The knowledge in that instance, which Brandeis laboriously chronicled with legislative testimony, World War I Food Administration reports, and excerpts from the trade publication&nbsp;<em>Bakers Weekly<\/em>, involved the schemes for \u201cshort-weighting\u201d 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 \u201cconstantly watching the juggling of weight by their competitors\u201d rather than producing quality products at a fair price.<\/p>\n\n\n\n<p>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 \u201can exercise of the powers of a super-legislature\u2014not the performance of the constitutional function of judicial review.\u201d<\/p>\n\n\n\n<p>Sound familiar?<\/p>\n\n\n\n<p><strong>AMERICA AT ITS BIRTH REBELLED<\/strong>&nbsp;at the centralized nature of the British Empire and embraced\u2014at least rhetorically\u2014a 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\u2019s vision in particular. \u201cI see him as the Jewish Jefferson,\u201d said Rosen, who somewhat amazingly studied under one of Brandeis\u2019s last law clerks, David Riesman.<\/p>\n\n\n\n<p>Even Brandeis\u2019s 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&nbsp;<em>kibbutzim<\/em>, removed from the social discord that industrialization had brought to Gilded Age America. In his na\u00efvet\u00e9, he declared that the economic benefits of this organization would bring the two peoples together. \u201cI don\u2019t think he would be very happy with Israel now,\u201d Urofsky told me.<\/p>\n\n\n\n<figure class=\"wp-block-image\"><img decoding=\"async\" src=\"https:\/\/i0.wp.com\/prospect.org\/wp-content\/uploads\/2026\/07\/AUG26-Brandeis-2.jpg?resize=1024%2C683&amp;ssl=1\" alt=\"\" class=\"wp-image-141626\"\/><figcaption class=\"wp-element-caption\">Portraits of Brandeis as a younger man (left) and as a Supreme Court justice.&nbsp;Credit:&nbsp;Library of Congress\/George Grantham Bain Collection; Harris &amp; Ewing\/Library of Congress<\/figcaption><\/figure>\n\n\n\n<p>As a young attorney in Boston, Brandeis merged his Jeffersonianism with relentless practicality. He was hired to resolve a shoe manufacturer\u2019s 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 \u201csliding scale\u201d plan where the company\u2019s dividend could only increase if it lowered prices for customers. He proved that railroads could save $1 million a day through scientific management\u2014reorganizing their repair shops, more efficiently laying track\u2014which 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.<\/p>\n\n\n\n<p>\u201cA lot of reformers complained about things,\u201d Urofsky explained. \u201cBut once Brandeis identified a problem he came up with a solution.\u201d<\/p>\n\n\n\n<p>In working out these compromises, Brandeis referred to himself as \u201ccounsel to the situation.\u201d In exchange, he asked for no money, which burnished his reputation as The People\u2019s Lawyer. He could work pro bono because his law firm was extraordinarily lucrative; his partner\u2019s family owned a successful paper mill and became the firm\u2019s first client. Attending to the needs of the public was kind of Brandeis\u2019s hobby. \u201cI don\u2019t want money or property most,\u201d he said once to an interviewer. \u201cI want to be free.\u201d<\/p>\n\n\n\n<p>This experience also gave him understanding of how even careful compromises could falter. \u201cHe thought that as an attorney \u2026 he could work out contractual relations that were mutually satisfying across the gulf of power,\u201d said Gerald Berk, professor emeritus of political science at the University of Oregon and another Brandeis biographer. \u201cAnd then he realized, \u2018Wait a minute. These guys will abuse this power.\u2019\u201d<\/p>\n\n\n\n<p>This understanding sparked Brandeis\u2019s antipathy toward any unchecked ability to impose conditions over man. \u201cHe 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,\u201d 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.<\/p>\n\n\n\n<p>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\u2019t really a feature of pre\u2013New Deal America; the radical component of Brandeis\u2019s Progressive Era fulminations was his attack on big business.<\/p>\n\n\n\n<figure class=\"wp-block-image\"><img decoding=\"async\" src=\"https:\/\/i0.wp.com\/prospect.org\/wp-content\/uploads\/2026\/07\/AUG26-Brandeis-6.jpg?resize=690%2C1024&amp;ssl=1\" alt=\"\" class=\"wp-image-141639\"\/><figcaption class=\"wp-element-caption\">Source: Robert D. Farber University Archives &amp; Special Collections Department\/Brandeis University Library<\/figcaption><\/figure>\n\n\n\n<p><strong>IN \u201c<\/strong><strong>A CURSE OF BIGNESS\u201d<\/strong>&nbsp;and a series of articles in&nbsp;<em>Harper\u2019s<\/em>&nbsp;that were collected into the book&nbsp;<em>Other People\u2019s Money\u2014and How the Bankers Use It<\/em>, 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 \u201cinterlocking directorates\u201d). 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\u2019s theories about competition policy in the 1970s.<\/p>\n\n\n\n<p>The trusts were constructed and controlled by financiers with no experience in the trusts\u2019 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\u2019s stability. Despite its thunderous reputation,&nbsp;<em>Other People\u2019s Money<\/em>&nbsp;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.<\/p>\n\n\n\n<p>But financial control isn\u2019t Brandeis\u2019s 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. \u201cBrandeis stands for the idea that economic independence is a fundamental condition for democratic freedom,\u201d said Zephyr Teachout, a professor at Fordham Law School. There\u2019s&nbsp;<a href=\"https:\/\/www.greenbag.org\/v16n3\/v16n3_articles_campbell.pdf\">no record<\/a>&nbsp;of him uttering the famous line attributed to him\u2014that we can have a democratic society or concentration of wealth, but not both\u2014yet he would agree with its essence.<\/p>\n\n\n\n<p>He did say another line that speaks to his belief in how facts can change the world: \u201cSunlight is said to be the best of disinfectants.\u201d<\/p>\n\n\n\n<p>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 &amp; Maine. J.P. Morgan was the New Haven\u2019s 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\u2019s books and found significant financial strain that he said threatened the company\u2019s operations and its dividend.<\/p>\n\n\n\n<p>This outraged the city\u2019s 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\u2019s 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\u2019s 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\u2019s now part of Amtrak.<\/p>\n\n\n\n<p>The 1912 election was described in Matt Stoller\u2019s&nbsp;<em>Goliath<\/em>&nbsp;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.<\/p>\n\n\n\n<p>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\u2019s was Hamiltonian, regulating not companies but competition by outlawing unfair methods like forced sales, contractual restraints, or price discrimination. It fit Brandeis\u2019s small-government approach, and he thought it would free citizens to pursue their talents. \u201cThey believed good people should be given the opportunity to succeed, and if it was opposed by large corporations, that block should be taken away,\u201d Urofsky said.<\/p>\n\n\n\n<figure class=\"wp-block-image\"><img decoding=\"async\" src=\"https:\/\/i0.wp.com\/prospect.org\/wp-content\/uploads\/2026\/07\/AUG26-Brandeis-3.jpg?resize=1024%2C683&amp;ssl=1\" alt=\"\" class=\"wp-image-141625\"\/><figcaption class=\"wp-element-caption\">His insistent refusal of pay for legal work on Progressive reforms gave Brandeis the nickname \u201cThe People\u2019s Lawyer.\u201d&nbsp;Credit:&nbsp;Robert D. Farber University Archives &amp; Special Collections Department\/Brandeis University Library<\/figcaption><\/figure>\n\n\n\n<p>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 \u201csubstantially lessen competition,\u201d rather than just ones that create a monopoly. The FTC could study markets to identify new tactics and prevent consolidation before it formed.<\/p>\n\n\n\n<p>Sen. Elizabeth Warren, the public figure who most closely took on Brandeis\u2019s role as counsel to the situation before entering public office, drew on his approach to government when devising the Consumer Financial Protection Bureau. \u201cThe 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,\u201d she said.<\/p>\n\n\n\n<p>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\u2019s attention drifted amid the Great War and his failing health. It took the Great Depression for the country\u2019s political elite to recognize Brandeis\u2019s 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&nbsp;<em>Other People\u2019s Money<\/em>. (Brandeis reissued the book after the 1929 crash.)<\/p>\n\n\n\n<p>The New Deal, then, delivered on the promise of the New Freedom, and its structure of regulated competition sustained America\u2019s unprecedented shared prosperity in the decades following World War II.<\/p>\n\n\n\n<p><strong>SUCH WAS HIS IMPACT<\/strong>&nbsp;as a private citizen that Brandeis\u2019s 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&nbsp;<a href=\"https:\/\/en.wikipedia.org\/wiki\/Louis_Brandeis_Supreme_Court_nomination#\/media\/File:Brandeis-Puck_1916.jpg\">cartoon from the era<\/a>&nbsp;showed \u201cPrivilege,\u201d \u201cWall Street,\u201d and \u201cMonopoly\u201d 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\u2019s office fashioned a chart of all their overlapping financial connections. It was supposed to run in&nbsp;<em>The New Republic<\/em>, then a house organ for Brandeis allies. \u201cThe editor killed it. The owner\u2019s friends and business connections were being called out,\u201d Rosen explained.<\/p>\n\n\n\n<figure class=\"wp-block-image\"><img decoding=\"async\" src=\"https:\/\/i0.wp.com\/prospect.org\/wp-content\/uploads\/2026\/07\/AUG26-Brandeis-4.jpg?resize=696%2C1024&amp;ssl=1\" alt=\"\" class=\"wp-image-141624\"\/><figcaption class=\"wp-element-caption\">Moneyed interests despaired at Brandeis\u2019s ascension to the Supreme Court.&nbsp;Credit:&nbsp;Nelson Greene\/Library of Congress<\/figcaption><\/figure>\n\n\n\n<p>Brandeis sat from 1916 to 1939 on a&nbsp;<em>Lochner<\/em>-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\u2019s principles of individual liberty, to establish a legacy that would eventually convince a nation.<\/p>\n\n\n\n<p>In&nbsp;<a href=\"https:\/\/supreme.justia.com\/cases\/federal\/us\/274\/357\/\"><em>Whitney v. California<\/em><\/a>&nbsp;(1927), the Court supported punishment for a woman who organized the state\u2019s 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. \u201cThose who won our independence believed that the final end of the State was to make men free to develop their faculties,\u201d he wrote. \u201cThey 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.\u201d<\/p>\n\n\n\n<p>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. \u201cI think Brandeis had very well-developed ideas about citizenship,\u201d said Tim Wu, the former Biden administration competition policy czar who borrowed Brandeis\u2019s title&nbsp;<em>The Curse of Bigness<\/em>&nbsp;for one of his own books. \u201cThe U.S. was meant to be a republic of citizens and not a republic of observers or passive followers.\u201d<\/p>\n\n\n\n<p>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\u2019s premises, ruled Taft, promoted to chief justice after his failed re-election, and therefore there was no Fourth Amendment violation.<\/p>\n\n\n\n<blockquote class=\"wp-block-quote\">\n<p>The broader point Brandeis made was that Americans had the constitutional right to be left alone.<\/p>\n<\/blockquote>\n\n\n\n<p>In&nbsp;<a href=\"https:\/\/supreme.justia.com\/cases\/federal\/us\/277\/438\/\">his dissent<\/a>, \u201cBrandeis insists on preserving the same amount of privacy in the age of wires as the age of the horse and buggy,\u201d Rosen said. He wanted government kept at the electronic water\u2019s edge, the same way it\u2019s 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.<\/p>\n\n\n\n<p>The broader point Brandeis made in&nbsp;<em>Olmstead<\/em>&nbsp;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. \u201cHe 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,\u201d Teachout said. \u201cThere is a force in our internal thought processes that actually shapes the world.\u201d<\/p>\n\n\n\n<p>The right to privacy was affirmed by the Warren Court in&nbsp;<em>Griswold v. Connecticut<\/em>, as was Brandeis\u2019s conception of free speech that should only be abridged to avert serious injury. At a time when constitutional protections\u2014like the right to make private medical decisions with your doctor\u2014are being knocked down by the Roberts Court, Brandeis\u2019s 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.<\/p>\n\n\n\n<p><strong>WE ARE TODAY LIVING<\/strong>&nbsp;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\u2014the fever dreams of the past are now present, and worse than had been imagined. \u201cGovernment itself has been weaponized on behalf of the wealthiest,\u201d Sen. Warren told me. \u201cAnd that means democracy as a tool is under threat in a way that Brandeis didn\u2019t have to confront.\u201d<\/p>\n\n\n\n<figure class=\"wp-block-image\"><img decoding=\"async\" src=\"https:\/\/i0.wp.com\/prospect.org\/wp-content\/uploads\/2026\/07\/AUG26-Brandeis-5.jpg?resize=849%2C1024&amp;ssl=1\" alt=\"\" class=\"wp-image-141623\"\/><figcaption class=\"wp-element-caption\">Chief Justice William Howard Taft (left) had a conservative majority, but Brandeis\u2019s dissents would eventually become the legal standard.&nbsp;Credit:&nbsp;AP Photo<\/figcaption><\/figure>\n\n\n\n<p>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&nbsp;<a href=\"https:\/\/www.thenation.com\/article\/archive\/this-budding-movement-wants-to-smash-monopolies\/\">first to publish that nickname<\/a>, it was not my invention. But in reviewing Brandeis\u2019s 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.<\/p>\n\n\n\n<p>\u201cHe always said that the most important thing a person can be in a democracy was a citizen,\u201d Urofsky said. \u201cAs a citizen you not only reap rewards of democracy but have a responsibility to it.\u201d<\/p>\n\n\n\n<p>The epitome of a citizen in Brandeis\u2019s preferred democracy may be his own great-grandson, Paul Brandeis Raushenbush. He leads the&nbsp;<a href=\"https:\/\/www.interfaithalliance.org\/\">Interfaith Alliance<\/a>, founded to countervail the power of the religious right and Christian nationalism, and more recently&nbsp;<a href=\"https:\/\/www.interfaithalliance.org\/post\/interfaith-alliance-condemns-new-brutal-ice-killing-in-minnesota-urges-all-faith-communities-to-mobilize-against-ice\">supporting faith leaders<\/a>&nbsp;who are working to shield their neighbors from ICE. \u201cWe are saying religion can be the handmaiden to authoritarianism but also its worst enemy,\u201d he told me.<\/p>\n\n\n\n<p>This work has associations with Raushenbush\u2019s&nbsp;<em>other<\/em>&nbsp;great-grandfather, Walter Rauschenbusch, a leader of the Social Gospel anti-poverty movement of the late 19th century. Brandeis\u2019s daughter Elizabeth married Rauschenbusch\u2019s 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\u2019s cousin.<\/p>\n\n\n\n<p>\u201cThis is the vibe,\u201d Raushenbush said.<\/p>\n\n\n\n<p>He talked about Brandeis\u2019s 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\u2019s 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\u2019s 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.<\/p>\n\n\n\n<p>\u201cThere\u2019s a theme here that is relevant to our lives,\u201d he said. \u201cHow am I going to use my skills to impact and love my neighbor?\u201d<\/p>\n\n\n\n<h3 class=\"wp-block-heading\">Before you go.<\/h3>\n\n\n\n<p>I hope that you found this article interesting and thought-provoking. The reason we\u2019re able to publish stories like this \u2014 free of programmatic ads and never behind a paywall \u2014 is because readers like you step up to support our work.&nbsp;<\/p>\n\n\n\n<p>The&nbsp;<em>Prospect&nbsp;<\/em>doesn\u2019t answer to advertisers or billionaire owners. We answer to you and to our commitment to pursuing the truth, wherever that leads us.&nbsp;<\/p>\n\n\n\n<p>Independent, reader-supported journalism is critical at a time when the free press is under assault.&nbsp;<\/p>\n\n\n\n<p>If you believe this kind of reporting should exist and remain free to read, we hope you\u2019ll consider chipping in. Every contribution, however modest, makes a real difference.<\/p>\n\n\n\n<p><a href=\"https:\/\/prospect.org\/?form=donate&amp;utm_source=ab-dlt\">Donate Now<\/a><\/p>\n\n\n\n<figure class=\"wp-block-image\"><img decoding=\"async\" src=\"https:\/\/i0.wp.com\/prospect.org\/wp-content\/uploads\/2025\/10\/cropped-DAVID-DAYEN_CIRCLE.png?resize=1024%2C1024&amp;ssl=1\" alt=\"David Dayen\" class=\"wp-image-126073\"\/><\/figure>\n\n\n\n<p><strong>David Dayen<\/strong><br>Executive Editor<\/p>\n\n\n\n<p>This article appears in&nbsp;<a href=\"https:\/\/prospect.org\/archive\/aug-2026-issue\/\">Aug 2026 issue<\/a>.<a href=\"https:\/\/prospect.org\/author\/david-dayen\/\"><\/a><\/p>\n\n\n\n<h2 class=\"wp-block-heading\"><a href=\"https:\/\/prospect.org\/author\/david-dayen\/\">David Dayen<\/a><\/h2>\n\n\n\n<p><a href=\"mailto:ddayen@prospect.org\">ddayen@prospect.org<\/a><\/p>\n\n\n\n<p>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\u2019s Great Foreclosure Fraud. He co-hosts the podcast Organized Money with Matt Stoller. He can be reached on Signal at ddayen.90.&nbsp;<a href=\"https:\/\/prospect.org\/author\/david-dayen\/\">More by David Dayen<\/a><\/p>\n\n\n\n<p><a href=\"https:\/\/bathtubbulletin.com\/#facebook\" rel=\"noreferrer noopener\" target=\"_blank\"><\/a><\/p>\n","protected":false},"excerpt":{"rendered":"<p>Posted in&nbsp;Law and Justice Louis Brandeis believed that facts could change lives and break excessive power where it accumulated. &nbsp;by&nbsp;David Dayen&nbsp;July 30, 2026 (Prospect.org) This article appears in the&nbsp;August 2026&nbsp;issue of&nbsp;The American Prospect&nbsp;magazine.&nbsp;If you\u2019d like to receive our next issue in your mailbox, please&nbsp;subscribe here. \u201cIam no theorist,\u201d Louis Brandeis&#8230; <a class=\"continue-reading-link\" href=\"https:\/\/occupysf.net\/index.php\/2026\/08\/02\/louis-brandeis-the-empiricist\/\"> Continue reading <span class=\"meta-nav\">&rarr; <\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2312],"tags":[2322],"_links":{"self":[{"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/posts\/49514"}],"collection":[{"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/comments?post=49514"}],"version-history":[{"count":1,"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/posts\/49514\/revisions"}],"predecessor-version":[{"id":49515,"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/posts\/49514\/revisions\/49515"}],"wp:attachment":[{"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/media?parent=49514"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/categories?post=49514"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/tags?post=49514"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}