From Progressivism to Modern Liberalism: Louis D. Brandeis as a Transitional Figure in Constitutional Law

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.”