The People’s Justice—and a Zionist

Louis D. Brandeis: A Life By Melvin Urofsky Pantheon 2009, $40.00, pp. 976

Louis Brandeis is one of a small number of Supreme Court Justices whose name is widely known—both in and out of the “legal” world. Brandeis became the first Jewish Supreme Court Justice when President Woodrow Wilson appointed him in 1916, and his route to the nation’s highest court was by no means common. He had a successful law practice in Boston for nearly four decades, pioneering the practice of modern corporate law and the idea of pro bono work, acting as a policy advisor to national politicians and public interest groups, and helping draft the Federal Reserve Act, the Clayton Antitrust Act and the law establishing the Federal Trade Commission.

As a Justice, he was a leader in the modern jurisprudence of free speech and the doctrine of incorporation, by which the Bill of Rights came to apply to the states. His early writing laid the basis for the right to privacy. Today, a university bears his name, his elucidating phrases are still quoted and his legacy continues to have a profound impact on American society. Melvin Urofsky, a professor of law and public policy at Virginia Commonwealth University, misses little in this exhaustive book on Brandeis’ extraordinary career.

The Brandeis family settled in Louisville, Kentucky, coming from Prague in 1854. They were a cultured, urbane middle class family who saw in the United States an opportunity to live in political and social freedom denied them by European society. It did not take long before they were successful in business here and traveled in Europe for three years after Louis graduated high school at 16. Bilingual, he studied in Dresden, Germany, and on the family’s return was accepted to Harvard Law School without a college degree. He excelled there and developed a lifelong tie to the school.

Brandeis married Alice Goldmark, a distant relative, a practice others in his family had followed. Goldmark suffered from neurasthenia, a psychological disorder whose symptoms include chronic fatigue, loss of memory and aches. The couple raised two daughters and lived a conventional family life while Louis led an extraordinary public one. Although his wife was often away, sometimes institutionalized, Brandeis was loyal and supportive. He acted with rectitude and civic virtue in all he did at home and work.

Anti-Semitism in Europe and the United States then was not the anti-Semitism of the Holocaust, but one of limited acceptance and opportunity. Brandeis’ Jewishness, Urofsky explains, derived from the moral teachings of the prophets and ideals rather than from orthodox religious rules and rituals. Like other American Jews of the early 20th century, he was more of a secular and cultural Jew than a believer. “He never denied his origins; nor did he broadcast them” is how Urofsky sums it up.

Brandeis’ law school friend Samuel Warren lured him to practice law in Boston and became his lifelong friend and collaborator. Yet, Warren’s anti-Semitic wife cut Brandeis from their list of wedding invitees and snubbed him socially. Brandeis ignored the slight and, later, more frequent and general social ostracism resulting from his activities as a social reformer. James Clark McReynolds, the reactionary Supreme Court Justice, detested Brandeis and refused to sit next to him or to be photographed with him. Brandeis said nothing about the crude treatment, maintaining a courtly civility.

Brandeis the moralist and idealist drew from the ethical and social teachings that shaped his intellectual, religious and cultural background. First in Boston and later nationally, he championed moral crusades against unrealistic liquor laws, disgraceful conditions in public institutions and the evils of corporate monopolies, and pressed the social need for protective labor legislation and honest unions. Brandeis saw law, Urofsky concludes, “as a surrogate for religion in establishing and preserving morality.”

The story of Brandeis’ ascendancy to the Supreme Court is especially interesting. President Wilson, a Democrat, chose Brandeis, then 60, to fill a vacancy created by the death of Justice Joseph Rucker Lamar, appointed by Wilson’s Republican predecessor William Howard Taft. Brandeis did not campaign for the job, but his national reputation as a legal scholar and activist in progressive public affairs made him an obvious choice. A firestorm of criticism was unleashed by Brandeis’ ideas of social justice. It was initiated by enemies he had defeated on those issues, and was no doubt fueled also by those who opposed having a Jew on the Court. Detractors and loyalists, even within his beloved Harvard community, fought over the nomination for four months. Harvard President Abbott Lawrence Lowell, a known anti-Semite, petitioned against Brandeis; faculty and students overwhelmingly supported him. Mostly along political party lines, his appointment was confirmed by the Senate, 47-22, with only three Republicans voting in favor.

Brandeis served on the Supreme Court for 23 years, writing his opinions in longhand and using an illustrious cadre of clerks who lived and worked in his house, researching in and beyond the law libraries. He wrote 454 opinions and 74 dissents, articulating his philosophy of limited but enlightened judicial power: The states should be the laboratories of social reform, that is the genius of federalism; courts should defer to the legislature on matters of policy; opinions should be limited narrowly to the essential facts and determinative grounds; but “our constitution is not a strait-jacket. It is a living organism. As such it is capable of growth—of expansion and of adaptation to new conditions.”

For Brandeis, the most notable years on the changing Court came under former President Taft, then Chief Justice, who was ideologically opposed to Brandeis’ views. Between 1920 and 1930, the Court struck down 140 state and federal regulatory laws, acting as a judicially activist superlegislature. In his many dissents, Brandeis urged that states and legislatures should receive deference on public policies unless they violated the Constitution.

It was a conservative court, in transition from its traditional role as protector of property and business from government interference as contractual and due process freedoms, which disdained labor and minority rights. But rigidly applying “neutral” rules took no cognizance of the social realities that Brandeis called “the living law.” The sociologically sensitive jurisprudence of Brandeis and others took into consideration changing social and economic conditions in applying rules, adding a moral element. The light of reason should guide the Court, he said, urging that “We must let our minds be bold.” His dissents reflected what would, years later, often become the Court’s view and national policy.

In a sense, this is really two books—one about Brandeis, the extraordinary figure in American law and society, the other about his central role in Zionism and the lead-up to the creation of the State of Israel. Chaim Weizmann was the key figure in Europe and Palestine; Brandeis was the central and revered figure in American Zionism. Urofsky states that no Jew in the world enjoyed more prestige than Brandeis. Weizmann and Brandeis led battles in Great Britain and the United States to secure the Balfour Declaration, supporting a Jewish homeland in Palestine while giving Britain the mandate over Palestine—a position Brandeis came to regret. But he resisted entreaties to head the world Zionist movement. He was committed to proving that one can be an American and a Zionist with equal commitment. While on the Court, Brandeis remained influential—always behind the scenes—in Jewish affairs, often through his surrogate, the then Harvard law professor Felix Frankfurter, later himself an influential justice. His confidential counseling of activists would not have survived today’s standards of judicial ethics or media scrutiny.

The lingering question of dual loyalty of American Jews to the State of Israel still resonates. Brandeis was not a religious Jew and came to activism in Jewish affairs late in life. He saw no inconsistency in cultural pluralism, because his Jewishness was cultural and not based on dogma. Zionism was compatible with progressive Americanism because both shared the same democratic ideals. Many American Jews may not make “aliyah” but can support that option for others, particularly for people from oppressive countries. “Brandeis served as a bridge between two cultures,” assimilated American Jews and Yiddish-speaking newcomers, Urofsky concludes. Brandeis’ organizational skills made him the perfect leader to unify American Zionists under one roof—a challenging administrative feat.

Brandeis, an erudite gentleman, remained on the court into the era of Franklin Delano Roosevelt and the New Deal. His prodigious contributions as a liberal activist, lawyer and judge were profoundly influential in the real world. His remarkable life and work are worthy of the extensive attention Urofsky provides in this major biography, which also serves as an important analysis of American history.

Ronald Goldfarb is an attorney, author and literary agent, based in Washington, DC and Miami. He writes frequently on legal affairs and served in the Department of Justice under Robert F. Kennedy.