America’s first Jewish Supreme Court justice was the most farseeing constitutional philosopher of the 20th century, says author of a new biography on Louis D. Brandeis.
By Cindy Mindell
This month marks the 100th anniversary of Louis D. Brandeis’s Supreme Court confirmation and the simultaneous publication of Louis D. Brandeis: American Prophet, the latest installment in the Yale University Press’s Jewish Lives biography series.
Author Jeffrey Rosen refers to Brandeis as “the Jewish Jefferson,” the greatest critic of what the justice called “the curse of bigness” in business and government since the author of the Declaration of Independence. Rosen also argues that Brandeis was the most farseeing constitutional philosopher of the 20th century: in addition to writing the most famous article on the right to privacy, he also wrote the most important Supreme Court opinions about free speech, freedom from government surveillance, and freedom of thought and opinion. And as the leader of the American Zionist movement, he convinced Woodrow Wilson and the British government to recognize a Jewish homeland in Palestine.
A New York native, Rosen is a graduate of Harvard University and was a Marshall Scholar at Balliol College, Oxford, from which he received a second BA and earned a law degree from Yale Law School, after which he served as law clerk to Chief Judge Abner Mikva.
Rosen is president and CEO of the National Constitution Center, professor of law at the George Washington University Law School, and a contributing editor at The Atlantic. His books include The Supreme Court, The Most Democratic Branch, The Naked Crowd, and The Unwanted Gaze. He is co-editor of Constitution 3.0: Freedom and Technological Change.
He was the commentator on legal affairs for The New Republic from 1992 to 2014 and a staff writer at The New Yorker. He is a nonresident senior fellow at the Brookings Institution, where he speaks and writes about technology and the future of democracy. He often appears on National Public Radio and is a frequent contributor to the New York Times Magazine.
Recently, the Ledger spoke with Rosen about the subject of his new biography.
Jewish Ledger (JL): Is Brandeis someone you admire?
Jeffrey Rosen (JR): I’ve always admired Brandeis but he did not become my hero until the Yale Jewish Lives series editor asked me to write about him. I got this great homework assignment and then delayed starting it for a while until my editor said, “Unless you turn in the book in the next six months, you’re going to miss the 100th anniversary of his confirmation hearings.” Fear is a great motivating factor and I got up early every morning and wrote for two hours a day and wrote the bulk of the book for six months, although I had been thinking about him for several years before that.
Based on this wonderful immersion, I became convinced that Louis Brandeis is the greatest constitutional philosopher of the 20th century who can teach us more about values of free speech and privacy in an age of new technologies, about the curse of bigness in business and government, and about Zionism than any other American of his time. That’s why this book is a passionate case for why Brandeis matters today.
JL: How did Brandeis develop into such an ardent Zionist?
JR: Brandeis was a passionate defender of Palestine. He was the American who, more than any other Jew of the 20th century, convinced Woodrow Wilson and the British government to recognize Palestine as an independent Jewish state. Brandeis believed passionately that the Jews, like any other “nationality,” as he called it, deserved to be a majority in their own homeland. It’s a remarkable story about how this great justice, who was a secular Jew, raised without religion, became in his 50s the head of the American Zionist Movement and more responsible than anyone else for Palestine’s creation.
Brandeis had a few experiences in 1910 that turned him into a Zionist. First, he met Jacob de Haas, the American secretary of Theodor Herzl, the founder of modern Zionism. Jacob de Haas was interviewing Brandeis about a regulatory question and twice mentioned that “Louis Dembitz was a noble Jew.” Louis Dembitz was Louis Brandeis’s favorite uncle, his mother’s brother, and was an Orthodox Jew who was one of the three Jews who voted for Abraham Lincoln at the Republican National Convention of 1860. When Brandeis learned that his beloved uncle was a Zionist, he became intrigued and wanted to learn more.
Then he represented Jewish garment workers in a cloak-makers’ strike in 1910. These were the first eastern European Jews that he’d met. His parents had come from Prague after the Revolutions of 1848; there were pogroms that same year and Brandeis hadn’t spent a lot of time with eastern European immigrants before. He was so impressed by the intellectualism of the workers and their sense of empathy and willingness to see the other side, as well as the intelligence and empathy of their Jewish employers.
So these two experiences led him to read a lot about Zionism and he became convinced that, far from there being a conflict between Zionism and Americanism, as Theodore Roosevelt initially argued, that in fact, by being better Jews, we could be better Americans. He embraced a vision of cultural pluralism that’s uniquely relevant today.
JL: What was Brandeis’s Jewish upbringing like and how did that affect his development as a Zionist?
JR: His mother had raised him to believe that ethics were more important than religious observance. Her parents were part of a sect of Frankists – followers of Jacob Frank, a self-described 18th-century messiah – which was basically a precursor of Reform Judaism. Brandeis was raised to believe that the distinctive quality of the Jewish people was ethics, intellectualism, and a high moral sense. So for him, Zionism required neither religious observance nor moving to Israel.
He believed that by supporting Palestine’s right to exist as a Jewish state, American Jews could fulfill their responsibilities and also cultivate their distinctive identities as Jewish Americans. For him, Palestine appealed as a secular, democratic, and communalist place where democracy could be achieved on a small scale: in the kibbutzim that Brandeis saw as successors of the 5th-century Athenian democracy that he idealized and also the 18th-century Jeffersonian farms that were his model of democracy.
Brandeis hated bigness in business and government and he thought that the small-scale agriculturally-based kibbutzim of Israel would allow Jews to achieve self-government on a small and human scale.
He visited Palestine with Alfred Zimmern, the British Zionist who was also the author of one of Brandeis’s books on the Greek polis. He was serenaded by a group of boy scouts who sang Hatikvah. He had flowers strewn in his path, and he was absolutely dazzled by Palestine; he called it “miniature California” and he was especially interested in the agricultural possibilities for the cultivation of the land and for the success of the initial settlers in making milk and honey flow. He was interested in the elimination of malaria, which he had known from his boyhood in Kentucky. He anticipated that Jews and Arabs would work together with equal civil rights being guaranteed for their mutual betterment. It’s arguable that he was a romantic in his vision and failed to fully anticipate the power of both Jewish and Arab nationalism. But it was a very romantic vision that was reinforced by his visit to Palestine, which he considered the fulfillment of Jeffersonian and Athenian democracy.
He consented to have a kibbutz, Ein Hashofet – “Judge’s Spring” – named after him in tribute. He died in 1941, so he missed much of the foundation of the state of Israel and its initial development. But some have suggested that the generation of the leaders of Israel that included Golda Meir and had a vision of the state as a secular, democratic – and almost socialist, on a small scale – series of self-governing communities might have appealed to Brandeis. But I’m not sure whether there are Brandeisians in Israel today. I hope to be able to get there and beat the drum for the relevance of his vision.
JL: As the first Jew appointed to the Supreme Court, did Brandeis encounter anti-Jewish sentiment in his confirmation hearings or as a justice?
JR: He experienced some antisemitism in his confirmation hearings. He was attacked by his opponents for his “Old Testament cruelty.” Critics charged that he was appointed because he was a Jew and Woodrow Wilson wanted to win the Jewish vote in a close election. Pres. William Howard Taft, whom Brandeis had embarrassed in a Congressional hearing, attacked him as an “emotionalist” and a socialist and a radical, terms that have antisemitic overtones today – although Taft himself denounced antisemitism as president and made up with Brandeis after Taft became chief justice of the U.S. Supreme Court.
Even Brandeis’s supporters praised him in terms that almost seem antisemitic today — sort of glib endorsement of so-called “Jewish qualities of mind that are different from those of other men,” as Life magazine put it in its endorsement of Brandeis. So there certainly was some antisemitism in the confirmation hearings.
But the main reason that Brandeis waited 125 days between his nomination on January 28, 1916 and his confirmation on June 1 was because he was perceived as an economic radical, a foe of powerful oligarchs like J.P. Morgan, whom Brandeis unforgettably denounced in his 1913 book, Other People’s Money, and it was Brandeis’s perceived opposition to monopolists and his standing up for small business that was the basis for the opposition.
JL: In light of Brandeis’s stance against monopolists, what would he make of the Wall Street that triggered the 2008 recession? Whom do you see as ‘Brandeisian’ in today’s political world?
JR: In my book, the last question is “WWBD: What Would Brandeis Do?” and I try to channel him on the crash of 2008. I argue that he would have predicted it because he predicted the crash of ’29 by denouncing the risks that greedy mega-bankers took with other people’s money, investing in complicated financial instruments whose value no one could possibly understand. Sound familiar? It’s a complete anticipation of the credit-default swaps that led to the crash of 2008.
Brandeis’s solution was to break up the banks or to prevent monopolistic banks from forming in the first place. In this sense, when Bernie Sanders, on the campaign trail, attributed his proposal to break up the banks to Theodore Roosevelt, he had the wrong historical analogy: actually, it was Brandeis and Woodrow Wilson who wanted to break up banks. Theodore Roosevelt wanted to maintain big banks that were overseen by big regulatory bodies and William Howard Taft, the third candidate in the election of 1912, wanted to prosecute the banks with more vigorous anti-trust enforcement. So Brandeis is very relevant to our current debate about financial bigness and his solution was to break up bigness both in business and in government, and to ensure that the capitalization requirements for banks allowed people who ran them to understand the risks that they were taking with other people’s money.
I would call Elizabeth Warren something of a Brandeisian and Hillary Clinton more recently has been talking about the risks of financial size. But I think the most Brandeisian figure in recent financial debates has been Paul Volker. The Volker Rule prohibits banks from engaging in proprietary trading on their own accounts is a rule of which Brandeis would have approved. But it’s striking that in this election, there are fewer Brandeisians, given his relevance. I try to explore why that is and I think it’s because Brandeis was a Jeffersonian. The big thesis of this book is that Brandeis was the greatest critic of bigness in business and government since Jefferson. In this sense, his timing isn’t great, because this is the Age of Hamilton – both because of the musical and because of the fact that both parties, Republicans and Democrats, have embraced bigness, either in the corporate sphere on the right or in the governmental sphere on the left.
Today, we have fewer public figures who are consistently opposed to size or bigness in both business and government the way Brandeis and Thomas Jefferson were.
JL: Apart from Brandeis’s stand against bigness in business and government, what is his Supreme Court legacy?
JR: Brandeis wrote the greatest free-speech opinion ever written on the Supreme Court. That’s not just my opinion; that is the opinion of Justice Elena Kagan, whom I interviewed for the book. The opinion, Whitney v. California, is the most beautiful defense of the reason we need unrestricted free speech in a democracy so that people can exercise their freedom to hear the best arguments on all sides of contested questions and can develop their faculties of reason, which Brandeis felt was necessary for self-government.
He also wrote the greatest dissenting opinion about privacy in the 20th century, in Olmstead v. United States, a case involving wire-tapping, which anticipates modern debates about cyberspace and cellphone searches and drone surveillance and FMRI brain scans.
So his legacy has three components: he was the most important defender of free speech and privacy in the 20th century, the most important critic of bigness in business and government, and the most important American in supporting the foundation of the state of Israel – not a bad legacy for an ordinary man.
For more information: jewishlives.org/content/louis-d-brandeis