The Supreme Court’s Jeffersonian Jew

The Supreme Court’s Jeffersonian Jew

“Louis D. Brandeis: American Prophet” by Jeffrey Rosen, Yale, 256 pages, $25

Today’s mania for consolidation likely would have offended the Jeffersonian sensibilities of U.S. Supreme Court Justice Louis Brandeis, who worked for years in opposition.

Brandeis, born in 1856, “was the most-important critic of what he called “the curse of bigness” in government and business since Thomas Jefferson,” says Jeffrey Rosen in “Louis D. Brandeis: American Prophet.”

Not yet 21 when he graduated Harvard’s law school with its highest grades ever, Brandeis originally defended corporations but around 1893 switched to the side of workers, fighting tenaciously against railroads and the nation’s “financial oligarchy” — including J.P. Morgan.

Rosen, president and CEO of the National Constitution Center in Philadelphia, says that “Brandeis’ deep ethical sense, rooted in his burning determination to protect individual liberty and economic opportunity for the ‘small man’ … led him frequently to denounce injustice in the prophetic mode.”

So much so that President Franklin Roosevelt referred to him as “Old Isaiah.”

Raised in a secular home in Louisville, Ky., Brandeis said he was “very ignorant in things Jewish.” But a transformation in his 50s pushed him in 1914 to lead the American Zionist movement, making it acceptable by declaring that one could be both an American and a Zionist — that Jewish obligation to support Zion needn’t include moving there.

He considered secular, agrarian kibbutzim “the best laboratory for the small-scale democracy he idealized.” He helped persuade President Woodrow Wilson to endorse the Balfour Declaration, having tweaked a draft Wilson had sent him for review. Reaching Jerusalem in 1919, he “immediately fell in love with the land,” Rosen says.

Brandeis was the first Jew on the high court, which now has three Jews, five Roman Catholics, and a Jewish nominee. He was nominated in 1916 by Wilson, to whom he’d been an adviser, shaping reforms and helping broker the compromise that created the Federal Reserve in 1913.

His nomination set off a five-month confirmation battle, and his tenure was not without prejudice. Justice James McReynolds refused to sit next to Brandeis or to shake his hand and “often left the conference room when Brandeis spoke,” says Rosen, who’s also a law professor at George Washington University.

Rosen’s purpose was not a comprehensive biography — he cites three as superb — but “to introduce readers to what Brandeis thought and why he matters today, quoting extensively from his own powerful words.” This he does thoroughly, in clear language — despite using “inaugural” as a noun — although 208 tightly-packed pages are not a quick read and, with Rosen’s many references to cases, decisions and dissents, sorely lacks an index.

This latest in Yale’s “Jewish Lives” series has a 27-page introduction, largely showing how Brandeis’ thinking paralleled that of Jefferson. That point is made throughout; while appropriate, it becomes almost wearisome.

Throughout his tenure, which ended voluntarily in 1939, Brandeis “generally championed judicial deference to state legislation” unless it conflicted with the Constitution. Like Jefferson, he believed that an educated citizenry was the best guarantee of liberty, and he championed workers’ rights, unions and people having a decent standard of living.

Early on, he became known for the “Brandeis brief,” immersive research of a case’s factual background.

Despite his workload — writing 455 majority decisions and 65 dissents — Brandeis followed his prescription for rest, vacations and leisure and read daily to his two young daughters.  

Brandeis was hailed as “the people’s lawyer” for supporting family business and minority stockholders “against the rapacious monopolies of the Gilded Age,” Rosen says. But in his epilogue, Rosen wonders how Brandeis, who opposed national chains, would feel about entities like Wal-Mart, often accused of destroying Main Street but bringing consumers lower prices.

Presciently, Brandeis, who died in 1941, warned of the danger to democracy of electronic surveillance, saying: “The progress of science in furnishing the government with means of espionage is unlikely to stop with wiretapping.”

Neal Gendler is a Minneapolis-based freelance writer and editor.