Holmes and Brandeis: Companions in Dissent

In the 1920's, the words "Justices Holmes and Brandeis dissented" had become a familiar refrain in discussions about the work of the Supreme Court. This affinity between two men so unlike each other in background and method naturally puzzled the observers, and the effort to explain their relationship has produced two mutually contradictory theories. One view holds that though the two jurists approached problems differently, they usually arrived at the same conclusion because they shared a common philosophy on all really basic issues. "Oliver Wendell Holmes and Louis Dembitz Brandeis," a contemporary press comment read, "have achieved a spiritual kinship that marks them off as a separate liberal chamber of the Supreme Court.

On the great issues that go down to the fundamental differences in the philosophy of government these two are nearly always together; often they are together against the rest of the court."