|The Supreme Court in 1925. Brandeis is seated, right, and Oliver Wendell Holmes Jr. is to the left of Chief Justice William Howard Taft, center.|
What criteria should be used to judge one of the country’s pre-eminent jurists, a black-robed superstar whose rulings still reverberate through society nearly a century later? And on what basis should a verdict be rendered for the entirety of his rich and resonant service to the judiciary, Zionism, his family, and the American community as a whole?
Happily, the task of evaluating and explicating the life of Louis Dembitz Brandeis was taken up by law and history professor Melvin Urofsky of Virginia Commonwealth University. His magisterial “Louis D. Brandeis: A Life” was published in 2010 to acclaim and awards. Now issued in paperback, the compelling story of the man who arguably was the nation’s first “National Jew” and the first of his faith to serve on the Supreme Court becomes available to a fresh and wider audience.
Covering the terrain with assurance and a bracing prose style, Urofsky illuminates the Zelig-like odyssey of a man who was born five years before the Civil War and whose life extended to the eve of World War II, a period of profound ferment and change for America. The phrase “indispensable man” seems perfectly coined for Brandeis, whose advice was solicited by presidents facing grave global challenges as well as Garment District unions whose members literally sacrificed their lives for improved working conditions.
|Justice Louis Dembitz Brandeis wearing the robes of the Supreme Court.|
In modern parlance he would be called a go-to guy, just as in an earlier age he would have been characterized as a renaissance man. So wide and pervasive was the respect accorded his intellect, analytical prowess, and reputation for fairness that no sector of American life during the progressive era was exempt from a brush with the Brandeisian. Even old-line Brahmins and haughty WASPs with whom he jousted in the courtroom and regulatory chambers grudgingly respected his protean abilities.
Urofsky traces Brandeis’s determination to blaze new trails in the teaching, litigation, and interpretation of the law and his unwavering commitment to reform movements to an upbringing provided by doting but demanding parents. Adolph and Frederika Brandeis fled the anti-Semitism of the Austrian empire in the wake of the events roiling Europe in 1848. They were part of the first great wave of Jewish immigration to America and ultimately settled in Louisville, Kentucky. Adolph built a prosperous grain merchandising business, at least through the Civil War, while Frederika directed a nonreligious but fervently cultured, highly idealistic, and ethically motivated household.
The youngest of four siblings, Louis had an adored older brother, Alfred, with whom he maintained a lifelong closeness that included the daily exchange of letters. While young, Louis’s skin was slightly yellowed from bouts of malaria, but he was robust enough to spend three years on the Continent in the early 1870s when his family relocated so his father could regain his health after a series of business reversals. Louis honed his German, fell under the spell of Goethe and Schiller, excelled at advanced studies, and was exposed to the wider world. But no matter where he later traveled, even on his trip to Palestine, Brandeis always would compare the places he saw to moderate-sized Louisville. His Jeffersonian values about the size of government, individual speech and privacy rights, and the “curse of bigness” in business were taking root early on.
Back home and well prepared for the rigors of Harvard Law, Brandeis carved out a brilliant academic career, graduating as valedictorian despite vision problems that required him to hire readers. He benefited enormously from the new Socratic teaching methods put into practice by an inspired faculty in place of fusty rote memorization. The Harvard experience fostered his passionate appreciation of classical literature and the methodology used by the Greeks to operate their community of ideas. Brandeis’s lifelong moral and ethical compass had become fixed at true north. He would practice law but aspire to be an exemplary citizen of the modern republic.
Urofsky seamlessly shifts the emphasis at this point from the linear development of a gifted youth to a more nuanced portrait of a brilliant young attorney slightly adrift. Brandeis remained at Harvard after graduation, tutoring and teaching, before reluctantly heading to St. Louis at the behest of relatives and joining a law firm for what proved to be an unsatisfying year. He was lured back to Boston by college chum Samuel Warren to establish what would become a lucrative and publicly spirited practice. (The relationship cooled considerably when Warren married an anti-Semitic socialite who shunned Brandeis; Warren soon withdrew from the enterprise to accept a position in his family shoe business.)
The 1890s were heady years for the successor practice and its senior partner. Although he excelled at litigation, Brandeis felt most fulfilled when he could act as “counsel to the situation,” doing more good by resolving an impasse for all parties without resorting to trial. His stature and reputation burgeoned throughout New England, helped by the articles he and Warren wrote for the Harvard Law Review – one a masterpiece on the right to privacy – and a series of high-profile cases where he acted essentially as a public advocate in areas as disparate as liquor regulation and poorhouse reform and as a bulwark against the predatory practices of transit companies, railroads, and utilities.
But his proudest achievement, and one in which he retained a paternalistic interest, was the establishment of savings bank life insurance. In what became a model for the nation, Brandeis helped Massachusetts set up the system after he humbled the titans of the insurance industry at regulatory hearings. By mastering the complexities of actuarial science and ratemaking, he had exposed the excessive profits and greed of top executives. He also understood the court of public opinion and cultivated a network of contacts in the press to go along with his own unerring public relations instincts in building support for causes. The life insurance offensive lifted this two-tiered approach to new heights.
Increasingly known as the “people’s lawyer,” Brandeis, at 34, courted and wed Alice Goldmark of New York, a woman 10 years his junior. The union would produce two daughters, Susan, who after some troubled teen years went on to become an accomplished attorney, and Elizabeth, who pursued an academic career in economics. Both delighted and rewarded the couple with grandchildren. Urofsky treats the family dynamic warmly, and in the case of Alice’s periodic breakdowns and sanitarium care, with great sensitivity. Her situation improved dramatically after Brandeis was confirmed to the Supreme Court and the couple began spending most of the year in Washington. Mrs. Brandeis blossomed as she and her husband became renowned for the wit and wisdom that flowed during weekly salons at their apartment.
During the presidencies of Theodore Roosevelt and William Howard Taft, Brandeis’s reputation expanded from regional to national status. He confronted the house of Morgan and railroad monopolies, served as mediator to the garment industry in the wake of the Triangle Shirt Waist tragedy, conducted pioneering hearings for the creation of the Federal Reserve and Federal Trade Commission, and caught Taft (later his boss on the top court) engaging in a deception during the notorious Pinchot-Ballinger case. His political affiliations, such as they were, had morphed from Mugwump Republican to Roosevelt Progressive to Wilsonian Democrat.
At this juncture, another biographer might have encountered headwinds interweaving the many threads in a career as diverse and layered as his. Urofsky, however, proceeds smartly to Brandeis: Act 2 (leadership of American Zionism and economic “tutor” to Woodrow Wilson) and Brandeis: Act 3 (the Supreme Court and elder statesmanship). Although clearly an admirer, he avoids becoming hagiographic and is not afraid to call out the jurist for a surprising lack of initiative in the civil rights arena, considering his activism in other spheres, and for clinging to quixotic notions of scale and size in corporate America.
A galvanizing personal event occurred in 1914 when Brandeis was persuaded to lead and re-energize the American Zionist movement. As usual, he carried a full plate at the time, but he had been snubbed by Wilson for a cabinet post because of objections from big business. Thus a non-observant Jew had been called upon to reconcile the high ideals of his 2,000-year-old religion with the realities of an American society still churning its way through the second industrial revolution and poised to take center stage of a world at war.
Brandeis brought superb organizational skills to bear on the fractious elements of American Zionism, but he never overcame the hostility of Chaim Weizmann and the European clique, who felt he lacked the yiddishkeit and kishkas necessary for the creation of a Jewish homeland. Brandeis viewed Palestine as the perfect laboratory to replicate the Jeffersonian virtues he so cherished but that now had irretrievably vanished from his own country. Urofsky consistently asserts that Brandeis did not feel conflicted or suffer divided loyalties serving the cause, reasoning that it vindicated him as a more authentic American and helped him pay tribute to his observant uncle, Lewis Naphtali Dembitz. (So in awe was Brandeis of his relative that when he was a teenager he changed his middle name to Dembitz.)
By 1918 he had completely refashioned the movement of “Men! Money! Discipline!” into the Zionist Organization of America, motivated its efforts to ease the suffering of war-torn European Jews, elevated the status of Hadassah, and fought for the Balfour Declaration. While lobbying postwar European leaders in 1919, he made his long-contemplated trip to Palestine and became intoxicated by the possibilities of a Jewish homeland. But two years later, domestic policy schisms and deteriorating relationships with Europe’s Zionists became so dire that Brandeis and his key stewards resigned from the umbrella leadership council of American group. Without his cachet, the organization plunged into a decade of stagnation, reversed only when Brandeis was recalled to its helm during the Great Depression. By then, he had firmly established his eminence as an associate justice of the Supreme Court.
In 1916, Wilson would not be denied a second opportunity to bring Brandeis into government at the highest level. His nominee survived a bare-knuckled vetting process more bruising than those of today, with the added discomfort of not being able, by custom, to testify at the proceedings. If the quality of a person’s enemies is a measure of his standing, then Brandeis succeeded pluperfectly. A host of blustery business leaders recounted his sins – protecting the public while increasing government oversight of their activities – barely concealing their annoyance with the possibility that he would gain admission to their club.
Urofsky treats the undercurrent of anti-Semitism at the six-month hearings more as a background malignancy than as fodder for a separate chapter heading. What is apparent throughout the volume is that this deep, pervasive, and virulent pathology infected all levels of society to a much greater degree than it does today. Urofsky is no stranger to the territory, having touched on it in previous writings. He also makes clear Brandeis’s ability to surmount nearly every nasty situation with intellect, humor, or forbearance.
Ultimately, the nominee was confirmed to an aging court whose members included Chief Justice Edward White, the Victorian-mannered, slightly inept appointee of Grover Cleveland, and Associate Justice James McReynolds, an overtly Jew-baiting reactionary. But there was one gem among the brethren, the remarkable Oliver Wendell Holmes Jr. He and Brandeis would go on to form a firm friendship and legal symbiosis for nearly two decades. With other tribunal members, Brandeis maintained collegial relationships, no matter how conservative they were or how opposed to his view of a living, evolving law.
This is not the place to recount either Brandeis’s groundbreaking decisions or his pedestrian ones, but Urofsky does so in masterful detail. Brandeis’s debut opinion concerned the butterfat content of ice cream while one of his last rulings was the epic Erie Railroad v. Tompkins, where he essentially rebalanced state and federal jurisdictions. Brandeis served throughout the 1920s under Chief Justice Taft, who seemingly bore no grudge from the Ballinger case. The former president leaned on Brandeis for advice in complex rate decisions but was clearly exasperated by his judicial philosophy, feeling he was too far outside the conservative mainstream. In the 1930s, Charles Evans Hughes helmed the court and took it through the “packing” attempt by Franklin Roosevelt to leverage better rulings for New Deal legislation. Hughes was accessible, relatively flexible, and a good sounding board for Brandeis, especially when retirement approached.
After leaving the tribunal in 1939 Brandeis could take joy in his family, pride in his pivotal role in establishing the University of Louisville Law School (Harvard had grown too large for his tastes), and solace in the knowledge that attorneys now routinely submitted “Brandeis briefs,” the gold standard for exhaustive preparation, command of the facts, control of the footnotes, and an unerring instinct for a just cause. His values and legacy would live on through the law he helped fashion and the thousands of lawyers, judges and government regulators he had influenced. And even the titans of industry and plutocrats who had opposed him were now, perforce, observant of his reforms
Perhaps Urofsky could have titled the book “Louis Brandeis: An Overflowing Life.”