Old Isaiah: Louis D. Brandeis, Supreme Court justice and Zionist

By Bill Simons

The recent passing of Ruth Bader Ginsburg brings to mind the Jewish presence on the United States Supreme Court. In addition to Ginsburg, the roll call of Jewish associate justices includes Benjamin Cardozo, Felix Frankfurter, Arthur Goldberg, Abe Fortas, Stephen Breyer and Elena Kagan. And, there was the first, Louis D. Brandeis, a towering figure in the history of American jurisprudence and of Zionism. 

In 1916, President Woodrow Wilson, a progressive Democrat, nominated Brandeis to the Supreme Court. Up until this time, none but a white Christian male had served on the court. Jurist and legal scholar Hiller Zobel observes, “Never… had a confirmation fight blazed this hot and for this long – almost six months.” However, widespread condemnation of the vigilante lynching of Leo Frank, a Georgia Jew, the year before may have muted overt expressions of virulent antisemitism. Instead, much of the public attack on Brandeis trafficked in attacks on character, professional ethics, alleged political extremism and innuendo. The New York Times reported, “Brandeis has been conspicuous as a leader of the Jews in the Zionist movement; as an advocate of radical social legislation.” In the end, the Senate voted 47-22 to confirm the appointment, and Brandeis would go to serve on the bench until 1939, a 23-year tenure that ranks amongst the most distinguished in the court’s annals. 

Brandeis came to the court with a remarkable record as a litigator and writer. After graduating from Harvard Law School at age 20, with the highest average yet recorded, Brandeis embarked on a lucrative legal career that garnered wealth and prestige. After securing his family’s welfare and comfort, Brandeis devoted himself to public interest law. Against leviathan monopolies that exploited workers and the public, Brandeis battled, with notable success, against the corruption of powerful banking, insurance, railroad and traction corporations. As “the people’s lawyer,” he waived his fee in social justice cases. Brandeis championed worker minimum wage, overtime, safety and unionization rights; the privacy of the individual; and compassion toward the poor and mentally ill. Distrustful of concentrated authority, Brandeis looked to the individual states to serve as laboratories of democracy. He developed the “Brandeis Brief,” introducing sociological, statistical and other empirical data, as well as expert testimony into legal proceedings. Influential lectures, articles and books, most notably “Other People’s Money and How the Bankers Use It,” further promulgated Brandeis’ philosophy. 

Brandeis’ Supreme Court progressive positions on economic regulation and individual liberties still resonate. During his years on the court, Brandeis wrote both majority and minority opinions, and constants in his judicial writing were clarity, logic, erudition and vigilance against the aggrandizement of business and government power that threatened individual rights. Oligarchs, he believed, were antithetical to democracy. To remain vital, the Constitution, as interpreted by Brandeis, needed to acknowledge economic, technological and social change. In 1922, he wrote the unanimous court opinion upholding the 19th Amendment that granted women the vote. Brandeis’ opinions eloquently championed free speech and the right of individual privacy. Although a dissenting opinion, Brandeis’ minority position in Olmstead v. United States ultimately provided a bulwark against the invasion of privacy: “[O]ur Constitution… conferred… the right to be let alone – the most comprehensive of rights, and the right most valued by civilized men.”

Through the law, publications, counsel and proteges, Brandeis had a major impact on two presidential administrations. During his 1912 election and campaign and first term, President Woodrow Wilson embraced much of Brandeis’ conceptualization of American political and economic democracy. Wilson’s progressive New Freedom echoed Brandeis’ advice and ideology concerning the importance of regulating and curtailing the predatory power of large corporations by encouraging competition. Wilsonian legislation and programs – including tariff reduction, antitrust legislation and establishment of the Federal Reserve banking system – reflect the influence of Brandeis. 
A generation latter, Brandeis significantly impacted the reform legislation of President Franklin Delano Roosevelt’s Second Hundred Days of 1935.Cognizant of the imperatives of separation of powers, Justice Brandeis largely interacted with FDR’s New Deal through Harvard-connected intermediaries, particularly future Supreme Court Justice Felix Frankfurter. Such New Deal initiatives as the Securities and Exchange Commission and Public Utility Holding Company Act bear the Brandeis imprint. FDR displayed great respect for Brandeis, calling him “Old Isaiah.” Indeed, in his later years, Brandeis possessed the bearing and moral gravitas of an Old Testament prophet. Yet, when FDR attempted to pack the court with pro-New Deal justices, Brandeis helped block this infringement on separation of powers. 

Into his middle years, Brandeis, scion of an assimilated Louisville, KY, family of German descent, defined his Jewishness primarily as a matter of familial lineage and commitment to ethical precepts sans cultural, associational, theological or institutional affiliation. Brandeis’ arbitration of the 1910 New York garment workers’ strike commenced his sustained personal involvement with fellow Jews, including progeny of the recent mass immigration from Eastern Europe. In 1914, Brandeis accepted the presidency of the Provisional Executive Committee for Zionist Affairs. Given Brandeis’ stature and prestige, his embrace of Zionism – support for a Jewish homeland in Palestine – provided impetus for other American Jews to do likewise. Moreover, Brandeis provided a strong intellectual statement that American patriotism and Zionism were compatible, even synergistic, as evidenced by his speech to a conference of Reform rabbis in 1915: “Let no American imagine that Zionism is inconsistent with Patriotism. Multiple loyalties are objectionable only if they are inconsistent. A man is a better citizen of the United States for being also a loyal citizen of his state, and of his city; for being loyal to his family, and to his profession or trade; for being loyal to his college or his lodge… Every American Jew who aids in advancing the Jewish settlement in Palestine, though he feels that neither he nor his descendants will ever live there, will likewise be a better man and a better American for doing so.”

For American Jews, Brandeis’ greatest legacy is perhaps that melding of American and Jewish identities. 
Bill Simons is a professor of history at SUNY Oneonta, whose course offerings include sport and ethnic history. He is also the co-director of The Cooperstown Symposium on Baseball and American Culture, and served as a speaker for the New York Council on the Humanities.