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the abuses of monopoly and the misuse of financial power, from the injury suffered where labor disputes are not adjusted by peaceable means, and from the wrongs inflicted by the misconduct of recreant public officials. In all this, his aims were persistently constructive. Aware that permanent gain in social progress, because of its very nature, must be slow, he was content with small reforms, with few steps at a time and short ones, so long as they were forward. He was convinced that progress would not ultimately be attained by resort to methods which required any surrender of his ideal of freedom and justice for all; that our constitutional system, administered with wisdom and good will, had within it all the potentialities for realization of that ideal without altering the essential character of our institutions. Social conscience and vision, infinite patience, an extraordinary capacity for sustained intellectual effort, and serene confidence that truth ievealed will ultimately prevail, were the special gifts of character and personality which he devoted to his judicial service. These are gifts seldom united in any one person, but they would have been inadequate for the task without his insight into the true significance of a system of law which is the product of some 700 years of Anglo-American legal history.
Justice Brandeis knew that throughout the development of the common law the judge's decision of today, which is also the precedent for tomorrow, has drawn its inspiration—and the law itself has derived its vitality and capacity for growth—from the very facts which, in every case, frame the issue for decision. And so, as the first step to decision, he sought complete acquaintance with the facts as the generative source of the law. By exhaustive research to discover the social and economic need and consequences of regulation of wages and hours of labor, of rate-making for public utilities, of the sources and evils of monopoly, and in many another field, he laid the firm foundation of those judicial decisions which for nearly a quarter of a century were to point the way for the development of law adapted to the industrial civilization of the twentieth century. For what availed it that judges and lawyers knew all the laws in the ancient books, if they were unaware of the significance of the new experience to which those laws were now to be applied? In the facts, quite as much as in the legal principles set down in the lawbooks, he found the materials for the synthesis of judicial decision. In that synthesis the law itself was but the means to a social end—the protection and control of those interests in society which are the special concern of government and hence of law.
This end was to be attained within the limits set by the command of Constitution and statutes, and the restraints of precedent and of doctrines by common consent regarded as binding, through the reasonable accommodation of the law to changing social and economic needs. In such a process the law itself was on trial. The need for its continuity was to be weighed against the pressing demands of new facts, and in the light of the teachings of experience, out of which our legal system has grown. These were the guideposts marking the way to decision for Justice Brandeis, as they had been for other judges. What gave his judicial career its high distinction was his clear recognition that these are boundaries within which the judge has scope for freedom of choice of the rule of law which he is to apply, and that his choice within those limits may rightly depend upon social and economic considerations whose weight may turn the scales of judgment in favor of one rule rather than another.
It is the fate of those who tread unfamiliar paths to be misunderstood. There were many, when Justice Brandeis came to this Court, who had forgotten or never knew, and some perhaps who were not interested in knowing, that this was the judicial process which, throughout the history of the law, has in varying degree served to renew its vitality and to continue its capacity for growth. It was the method of the great judges of the past, who had consciously or unconsciously practiced the creative art by which familiar legal doctrines have been moulded to the needs of a later day. This is better understood today than it was twenty-five years ago. In the fullness of time we have seen the shafts of criticism which were directed at Brandeis the lawyer and Judge turned harmlessly aside by the general recognition of his integrity of mind and purpose and of his judicial wisdom.
He was emphatic in placing the principles of constitutional decision in a different category from those which are guides to decision in cases where the law may readily be altered by legislative action. He never lost sight of the fact that the Constitution is primarily a great charter of government, and often repeated Marshall's words: "it is a constitution we are expounding" "intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs." Hence, its provisions were to be read not with the narrow literalism of a municipal code or a penal statute, but so that its high purposes should illumine every sentence and phrase of the document and be given effect as a part of a harmonious framework of government. Notwithstanding the doctrine of stare decisis, judicial interpretations of the Constitution, since they were beyond legislative correction, could not be taken as the final word. They were open to reconsideration, in the light of new experience and greater knowledge and wisdom. Emphasis of the purposes of the Constitution as a charter of government, and the generality of its restraints under the Due Process Clause, precluded the notion that it had adopted any particular set of social and economic ideas, to the exclusion of others which fairminded men might hold, however much he might disagree with them. He was the stalwart defender of civil liberty and the rights of minorities. In the specific constitutional guaranties of individual liberty and of freedom of speech and religion, and in the adherence by all who wield the power of government to the principles of the Constitution, he saw the great safeguards of a free and progressive society.
Justice Brandeis revered this Court as an institution which he held to be the indispensable implement for the maintenance of our federal system. He believed that the Court's continued strength and influence depend more than all else upon the thoroughness, integrity and disinterestedness with which its justices do its work. Because of that belief, he withdrew from every other activity; the work of the Court was the absorbing interest of his life. Intelligent and disinterested study and the force of reason at the conference table he held to be the only dependable guaranties of the adequate performance of its great task. Although often in the minority, he never sought or desired any other assurance that the Court would meet its responsibilities.
Justice Brandeis' active judicial service covered a period of twenty-three years, from 1916 to 1939. His opinions, appearing in Volumes 242 to 305 of our reports, cover every phase of the wide range of questions which came before the Court in this transition period. They bear internal evidence of the prodigious labor and painstaking care with which they were prepared. In cases involving the validity of legislation or the application of statute or common law to new fact situations, his opinions, like his briefs at the Bar, give us the results of his extensive researches into the social and economic backgrounds of the questions presented, buttressed by expert opinion and accounts of the experience in other states and countries. His statements of fact and law were simple, direct, orderly, powerful, proceeding to their conclusion with convincing logic. In their discussions of the principles of constitutional government and of civil liberty they rise to heights of dignity and power which place them among the great examples of legal literature. He was never willing to sacrifice clarity to the turn of a phrase, for he wished above all to be understood. For laymen as well as lawyers his opinions are a compendium of the legal aspects of the social and economic phenomena of our times. Together they constitute one of the most important chapters of the history of this Court.
Apart from the work of the Court, his life was centered in his home and in the intimate associations with family and friends. His substantial means were devoted largely to charity, and by choice his home life was austere in its simplicity. He exercised a unique personal influence over the lives of men and women, young and old, who came to him from every walk of life to seek guidance and inspiration in his counsel. He revived their faith that—in a world troubled by declining standards—right, justice, and truth must remain the guiding principles of human conduct. Despite his great intellectual vigor and activity, his life was singularly placid, unruffled by the misunderstandings or criticism of others, however unmerited. This was the outer manifestation of an inner life, untroubled and serene, because given to great ends, with truth as the ultimate goal.
The time has not yet come to bring into its proper perspective a career so unusual and so far reaching in its influence, but we can appraise now the great service which he rendered by his devotion and loyalty to the Court as an institution and by the scholarship, integrity, and independence with which he performed his judicial labors. We know that because he sat as a judge on this Court the course of constitutional interpretation has been altered and that courts, in the process of adjudication, must henceforth, far more than in the past, look for light beyond the lawbooks to the experience of the world in which we live.
We see him now as one of the influential men of his time—in the words of the Resolution of the Bar, wise, strong, and good—taking his rightful place among that small group of great figures of the law who have given to it new strength, and to us renewed assurance of its adequacy and hence that it will endure.