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by Dusty Sklar
Discussed in this essay: Louis D. Brandeis: American Prophet, by Jeffrey Rosen. Yale University Press, 2016, 266 pages.
YALE UNIVERSITY PRESS, as part of its “Jewish Lives” series, has just published Louis D. Brandeis: American Prophet to commemorate the hundredth anniversary of his Supreme Court confirmation. It’s not a full-blown biography, but largely an intellectual one. The author, Jeffrey Rosen, is president and CEO of the National Constitution Center in Philadelphia and a professor at George Washington University School of Law, as well as a contributing editor at The Atlantic.
Brandeis’s parents, born in Europe, were secular Jews. His mother’s family had a Christmas tree every year. They eventually settled in Louisville, Kentucky. Louis, the youngest of three children, was born in 1856 and grew up in a loving home. He adored his mother, writing her warm letters all his life, as, for example, this when he was 32: “With each day I learn to extol your love and your worth more -- and that when I look back over my life, I can find nothing in your treatment of me that I would alter. . . . I believe, most beloved mother, that the improvement of the world, reform, can only arise when mothers like you are increased thousands of times and have more children.”
He was equally adoring of his wife, Alice Goldmark, a second cousin, and of his two daughters, Susan and Elizabeth. Yet he had a reputation of austerity towards others. His clerks would recall sliding copies of opinions under his apartment door at dawn, and his silently retrieving them without opening the door.
From his father, a small businessman who was wiped out in the Panic of 1873 — when bank failures left several of his major clients bankrupt and unable to pay their bills — Brandeis absorbed a Jeffersonian vision of locally-based economies fueled by small-scale entrepreneurs and hard-working businesspeople.
In 1875, Brandeis enrolled at Harvard Law School. William Cushing, a classmate, wrote about him in a letter to his own mother: “My friend Brandeis is a character in his way -- one of the most brilliant minds they have ever had here.... Hails from Louisville, is not a college graduate, but has spent some years in Europe, has a rather foreign look and is currently believed to have some Jew blood in him, though you would not suppose it from his appearance -- tall, well-made, dark, beardless, and with the brightest eyes I ever saw. Is supposed to know everything and to have it always in mind. The professors listen to his opinions with the greatest deference. And it is generally correct.”
BRANDEIS BECAME KNOWN as “the people’s lawyer” over the course of thirty-seven years in practice. His fiercest criticisms were reserved for what he called “the curse of bigness” -- which was the title of a chapter in his 1914 book, Other People’s Money--and How the Bankers Use It (based on a series of essays in Harper’s), as well as the title of a book he published in 1934. Like Thomas Jefferson, Brandeis held up as ideals small government and local democracy, and was always mindful to protect powerless people from economic exploitation. America, he wrote in the earlier book, needed to “escape from that inefficiency which is attendant upon excessive size. . . . The liberated smaller units will find no difficulty in financing their needs without bowing the knee to money lords.”
Among the principles and accomplishments that drove Brandeis’s career:
• The absolute imperative to restrain monopolies, especially in the financial sector. “Bankers bestride as masters America’s business world,” he wrote in Other People’s Money, “so that practically no large enterprise can be undertaken successfully without their participation or approval. These bankers are, of course, able men possessed of large fortunes; but the most potent factor in their control of business is not the possession of extraordinary ability or huge wealth. The key to their power is Combination -- concentration intensive and comprehensive . . .”
• Defending workplace and labor laws. “The single workman, standing alone, is in the power, at the mercy, of his employer,” he said in a 1905 speech to the National Civic Federation. “The union, while it works for liberty in curbing the power of the employer, necessarily restricts in some measure the freedom of its members. This is an inevitable incident of organization. To secure the benefits of society, including political and civil liberty, we surrender to society a large part of the rights and privileges man would be free to exercise in a state of nature. The trade union exacts from its members no more.”
• Helping to create the Federal Reserve System. Brandeis, an adviser to President Woodrow Wilson (who would appoint him to the Supreme Court in 1916), helped to win passage of the Federal Reserve Act of 1913, which established government oversight of a central bank that, in fact, the major banks of the time wanted to see established (to bail them out with public funds in case of collapse) under their exclusive control. Brandeis also helped inspire the Glass-Steagall Act in 1933 — the same year in which his Other People’s Money was reissued — to separate commercial banking from investment banking.
• Speaking out against the financial oligarchy. “We can have democracy in this country,” he famously said, “or we can have great wealth concentrated in the hands of a few, but we can’t have both.”
Brandeis himself lived frugally and abhorred investing in stocks, which he saw as no better than legalized gambling. He criticized his brother Alfred for buying stocks, admonishing him: “I feel very sure that unsereins [our kind of people] ought not to buy and sell stocks. We don’t know much about the business -- and beware of people who think they do.”
Woodrow Wilson would have appointed Brandeis as his attorney general, but there was so much antipathy from Wall Street that he made him an advisor instead. His 1916 appointment to the Supreme Court — as the first Jewish justice — led to one of the longest and most severely contested Senate fights in American history. Among those opposing his nomination were Harvard president A. Lawrence Lowell, Henry Cabot Lodge, and J. P. Morgan, who was the featured villain of Other People’s Money.
Even when the press supported him, there were whiffs of anti-Semitism in the coverage, as in this Life editorial: “Mr. Brandeis is a Jew, and up to now there has never been a Jew on the Supreme Court. Perhaps it’s time we had one. . . .
Back of the Jewish mind are traditions, impulses, values, aspirations and feelings that are different from those of a man of another race, and actuate thoughts and feelings which often perplex and sometimes displease observers. The Jewish point of view is apt to be different from the Gentile, just as the Roman Catholic point of view is apt to be different from the Protestant, or the Irish from the Anglo-Saxon.
But that is not a reason for objecting to Mr. Brandeis as a member of the Supreme Court, but rather the contrary. It is better that the great questions that come before that court should be seen from all angles. . . .
Nine Brandeises in the Court would justify nervousness, but one Brandeis among nine is something like internment. Nothing terrifying in that.
The only time Brandeis’s religion came up in the confirmation hearings was when a Boston attorney, Francis Peabody, testified that Brandeis’s “reputation is that he is not always truthful, that he is untrustworthy, and that he sails under false colors.” Peabody’s example: When they first met, Peabody did not know that Brandeis was a Jew.
Another Boston lawyer, Arthur D. Hill, wrote about Brandeis to Henry Cabot Lodge: “He has no power of feeling or understanding the position of an opponent, and none of that spirit of playing the game with courtesy and good-nature which is part of the standard of the Anglo-Saxon. He fights to win, and fights up to the limit of his rights with a stern and even cruel exultation in the defeat of his adversary. It is not for nothing that in the Old Testament there isn’t a word from beginning to end of admiration for a gallant enemy.”
Ultimately, the Senate voted 56 to 28 to confirm him.
ON THE SUPREME COURT, Brandeis often invoked “Jeffersonian ideals of ethics, respect for human flourishing, and democratic participation on a small scale,” writes Rosen, which inspired him, “late in life, to turn his prophetic gaze toward the Holy Land and Zionism.” His involvement with Zionism, however, dated from 1910, when he learned that his esteemed uncle, Lewis Naphtali Dembitz — a Louisville attorney, an active supporter of Abraham Lincoln, and a cofounder of the Conservative movement’s Jewish Theological Seminary — had been a Zionist. “I have a great deal of sympathy for the movement, and am deeply interested in the outcome of the propaganda,” Brandeis said in an interview in The Jewish Advocate at the end of that year, in his first public affirmation of Zionism,
These so-called dreamers are entitled to the respect and appreciation of the entire Jewish people. Nobody takes greater pride than I do in the success of the individual members of my people. I mean success in a higher sense and I believe that the opportunities for members of my people are greater here than in any other country. I believe that the Jews can be just as much of a priest people today as they ever were in the prophetic days.
By 1915, Brandeis had become Zionism’s leading public spokesman in America. “It is Democracy that Zionism represents,” Brandeis said.” It is Social Justice which Zionism represents, and every bit of that is the American ideal of the twentieth century. . . . Zionism is the Pilgrim inspiration and impulse all over again . . . .To be good Americans, we must be better Jews, and to be better Jews, we must become Zionists.“ His impact on the Zionist movement was astounding: During the seven years in which he led the Provisional Executive Committee for General Zionist Affairs (predecessor of the Zionist Organization of America), 1914-21, the organization increased its membership more than tenfold to nearly 200,000. Upon his nomination to the Supreme Court, Brandeis declared it to be vindication of the idea, “in the opinion of the President,” as he wrote, that “there is no conflict between Zionism and loyalty to America.”
Dusty Sklar is a contributing writer to our magazine and the author of Gods and Beasts: The Nazis and the Occult, as well as numerous stories and articles. Some of her articles for us have dealt with American corporate collaboration with Nazism, the American eugenics movement’s influence upon Nazism, and Mahatma Gandhi’s views on Zionism and the Holocaust.