BACKGROUND
On January
28, 1916, President Woodrow Wilson nominated Louis Dembitz Brandeis
to the Supreme Court of the United States. Prior to the nomination,
he only conferred privately with Senator Robert M. LaFollette,
the leader of the Progressive Party. The suddenness of the announcement,
and the secrecy of the decision to appoint a Jew caused a political
sensation. For over four months, the longest in the history
of a Supreme Court nominee, the Senate Judiciary committee heard
heated and complicated testimony. The final report of thirteen
hundred and sixteen pages revealed that the issues involved
radical threats to the American legal system. Brandeis's confirmation
on June 1st and appointment on June 5th signalled reform in
America's economic, political, and social system. The appointment
broke down a taboo on Jews serving in the Supreme Court and
high positions in government and education.
Louis Brandeis
was born on November 13, 1856 in Louisville, Kentucky to Adolph
and Frederika Dembitz Brandeis. His parents had immigrated to
the United States from Austria after the 1848 revolution. After
graduating high school he travelled to Germany for three years.
In 1875 he entered Harvard Law School where he graduated with
highest honors.
In 1879,
he established a law practice in Boston which grew into a profitable
business. He also became known as the "people's lawyer"
due to his pro bono advocacy of public interests--municipal
railway monopolization, life insurance practices, public land
conservation, and maximum day labor jobs for women and children
(Burt, p. 10). He joined with the Progressive movement in its
attack on corporate bigness and the exploitation of the working
class and consumer. He became a close advisor to LaFollette
and to Woodrow Wilson.
For Brandeis
the sacred concept of "protection of property" had
to be balanced with concepts of equity and social justice. He
promoted an active view of government which made it a regulator
of industry and a force for economic and social opportunity.
Brandeis
became famous for reforming legal arguments in the 1908 Supreme
Court case of Muller v. Oregon. The state of Oregon was being
challenged for its statute restricting women to just 10 hours
of labor per day. The employer, Muller, argued that the Fourteenth
amendment protected his "life, liberty and property."
Without using any constitutional precedents, Brandeis amassed
over 100 pages of sociological and economic data to prove that
excessive hours of toil are a threat to a woman's constitution.
Brandeis won his case. Subsequently, he used similar arguments
to protect child labor. Brandeis advocated that the law must
promote social justice even if there is no legal precedent.
This type of sociological and idealistic rather than strictly
legal argument became known as the Brandeis Brief.
Raised
as a non-religious German Jew in Kentucky and Boston in the
19th century, Brandeis' upbringing did not directly feel the
virulent anti-Semitism which arose in America at the turn of
the century. A massive riot and a lynching marked the violent
aspect of this prejudice against Russian and Polish Orthodox
Jews. The largest anti-Semitic police riot in American history
erupted on New York City's Lower East Side in July, 1902. The
police shouted "Kill those Sheenies [Jews]! Club them right
and left!" (Gerber, p. 286). Hundreds of Jews were injured.
In Atlanta,
Georgia, the President of the Jewish organization B'nai B'rith,
Leo M. Frank was dragged from his jail cell by an anti-semitic
mob and lynched. This event occurred in August, 1915, just six
months before Brandeis' nomination.
The anti-Semitism
evident at Brandeis' Senate hearings was subtle. Neither the
Boston Brahmins nor the Wall Street lawyers would openly admit
their motives. Brandeis' nomination was seen as a slap in the
face of the conservative Anglo-Saxon male elite who ruled America's
corporations, law firms, and government offices. Brandeis was
an outsider who denied the legitimacy of the legal system that
supported unfettered capitalism. Since Brandeis' intellect,
knowledge of the law, and judicial accomplishments were unimpeachable,
the Senate Hearings focused on the nature of his "character."
The attack
on Brandeis' nomination was led by the State Street and Wall
Street legal elite: Henry Cabot Lodge, Senator from Massachusetts,
and A. Lawrence Lowell, a corporate lawyer, former President
of the American Bar Association and President of Harvard, and
William Howard Taft. Lodge questioned Brandeis' fitness to serve:
"For the first time in our history a man has been nominated
to the Supreme Court with a view to attracting to the President
a group of voters on racial grounds. Converting the United States
into a Government by foreign groups is to me the most fatal
thing that can happen to our Government . . . " (Todd,
p. 85)
The lawyers
made the vague charge that Brandeis lacked the "judicial
temperament and capacity" to be a proper Judge, and that
he did not have "the confidence of the people." (Todd,
p. 106). When repeatedly asked by friends or colleagues to explain
in detail why Brandeis was personally unfit to be a judge, Lodge
did not respond, and Lowell "frankly confessed . . . that
he had none [no details] to offer." (Todd, p. 93).
Taft believed
that Brandeis and other Jewish lawyers would interpret the constitution
to uphold anti-corporate social and economic reforms. Senator
Walsh, Brandeis' leading defender on the Senate Judiciary Committee,
recognized that the attack dealt with Brandeis' religion and
radicalness. "No doubt much of the hostility toward Mr.
Brandeis had its origin in the senseless racial prejudice. .
.The real crime for which this man is guilty is that he has
exposed the inequities of men in high places in our financial
system. . . He has written about and expressed views on 'social
justice' . . . which threaten a reduction of dividends."
(Todd, pp. 189-249).
Throughout
the four months of debate, it became clear to many that the
charges against Brandeis were spurious and were coming from
a claque of men in Boston and Wall Street. In fact, this group
had hired a lobbyist, Austen Fox, to testify to and stall the
proceedings. A surge of support from Harvard rallied Charles
W. Eliot, President Emeritus of Harvard, to Brandeis' defense.
His testimonial
praised Brandeis' 'gentleness, courage. . . altruism and public
spirit'. (Todd, p. 229).
President
Wilson waited until the end of the Hearings to endorse his candidate.
He was aware that his attempt to nominate Brandeis in 1912 for
the position of Attorney-General had been thwarted because of
anti-Semitism and opposition from the legal and corporate elite.
In 1915, the prestigious Cosmos Club of Washington D.C. initially
refused Brandeis' membership application because he did not
"belong." (Todd, p. 214). Only Wilson's direct intervention
broke the religious ban, and Brandeis was allowed entry. Wilson
avoided a religious defense, and argued that Brandeis' appointment
was necessary to promote the social, economic, and political
values of the New Freedom and of Progressivism. Rallying the
country to his platform through the Brandeis appointment may,
indeed, have given Wilson the edge for winning the Presidential
race of 1916.
Brandeis
remained publicly quiet. During the Hearings he did write to
his brother that "eighteen centuries of Jewish persecution
must have enured me to [these] hardships." (Burt, p. 33).
After his confirmation he privately analyzed the campaign against
him. He blamed the large Corporations for being morally "abnormal
and lawless"; and "men like A. Lawrence Lowell who
had been blinded by privilege." (Mason, p. 505). He held
special scorn for those who abstained from comment.
On the
Court, Justice Brandeis became famous for advocacy of social
justice. For Jews he was a hero and a voice of commitment to
Jewish and Western values. He retired from the Court in 1939.
IMPACT
ON HUMAN RIGHTS
The appointment
of Louis Brandeis to the Supreme Court did not automatically
end anti-Semitism. In fact, it made Brandeis acutely aware of
his Judaic background. To many conservatives the Supreme Court
was the bastion of tradition and order. In 1916, the Court consisted
of eight Christian judges, all native born, and seven who were
Anglo Saxon. Brandeis was an outsider--a radical who sought
to change the law, and a Jew. The Court itself harbored a renowned
anti-Semite, Associate Judge James Clark McReynolds. After Brandeis'
appointment McReynolds refused to speak to him for three years,
and would not sit next to him for an annual Supreme Court picture.
Neither would he accept a Jew as a law clerk. McReynolds staunchly
opposed the nomination of any more Jews to the Court.
Brandeis'
professional success helped to encourage other Jews to seek
legal and educational careers. The politics of Progressivism
tolerated these aspirations. During the early 20th century,
Jews were seen as "cherishing an intellectual tradition
that was altogether foreign to the style of the raw materialistic
country to which they emigrated." (Rudolph, p. 172). It
was this "tradition" that made them good allies with
the social and economic reformers. Brandeis mentored many able
lawyers by offering them a position as his law clerk. He generously
endowed many Jewish and educational charities, thus giving many
Jews and scholars an opportunity to become successful.
Their challenge
to the professions created a backlash. Throughout the College
and University system of the United States, quotas were instituted
to limit Jews from accessing the education necessary to join
the white collar professions of law, medicine, the professoriate,
and science. For example, in the 1920's, A. Lawrence Lowell,
still President of Harvard, announced that he would limit Jewish
admissions to Harvard by no longer selecting the freshman class
on the basis of scholarship alone. The admissions policy would
be based on the applicant's "character and fitness and
the promise of the greatest usefulness in the future as a result
of a Harvard education." (Gerber, Synott, p. 234). Consequently,
Harvard reduced its Jewish enrollment from 25% to less than
15%.
Brandeis'
eloquence on the bench and his growing involvement with Zionism
made him a role model for many Jews. His strong advocacy for
the disadvantaged was compared to the moral indignation of the
great Jewish prophet Isaiah. As an American Zionist, he played
an active part in drafting the Balfour Declaration which set
up a homeland for the Jews. His ascension to the Supreme Court
highlighted and furthered the contribution of Jews to American
government and society.
BIBLIOGRAPHY
Abraham,
Henry J. Justices & Presidents: A Political History of
Appointments to the Supreme Court. New York: Oxford University
Press. 1985. Second edition. Includes analyses of the relationship
between Wilson and Brandeis, and William Howard Taft's opposition
to Brandeis and Benjamin Cardozo. Most helpful are the Appendices
which rate the Justices. Brandeis is considered, along with
his Jewish colleagues Felix Frankfurter and Benjamin Cardozo,
among the top twelve in the history of the Court. Taft is "near
great," and McReynolds is a "failure."
Auerbach,
Jerold S. Rabbis and Lawyers: The Journey fromTorah to Constitution.
Bloomington: Indiana University Press, 1990. A brilliant analysis
of the Jewish role in American legal thought. The chapter on
Brandeis argues that his sense of legal advocacy was derived
from two sources: the prophetic pronouncements of the Torah,
and the laws of the U.S. Constitution. His creativity derived
from being an outsider to both traditions. An excellent discussion
of Brandeis' Zionistic views in terms of his commitment to American
values.
Auerbach,
Jerold S. Unequal Justice: Lawyers and Social Change inModern
America. New York: Oxford University Press, 1976. A history
of the American Bar Association's early 20th century struggle
to restrict Negro Lawyers from membership, and to prevent Jews
from judicial appointments.
Burt, Robert
A. Two Jewish Justices: Outcasts in the Promised Land.
Berkeley: University of California Press, 1988. A comparative
study of Louis Brandeis and Felix Frankfurter. He concludes
that Brandeis's Jewish experience provided him with a sense
of mission to save the outcast.
Gerber,
David A. editor. Anti-Semitism in American History. Urbana:
University of Illinois, 1986. Provides excellent background
reading on the anti-Semitism of the 19th and 20th centuries.
Mason,
Alpheus Thomas. Brandeis: A Free Man's Life. New York:
The Viking Press, 1946. The best detailed biography of Louis
D. Brandeis. Excellent on Brandeis' legal cases and his nomination.
Does not adequately deal with his Jewishness and Zionism. Based
on voluminous primary sources.
McWilliams,
Carey. A Mask for Privilege: Anti-Semitism in America.
Boston: Little, Brown and Company, 1948. The classic study on
the nature of anti-Semitism in the United States. A stinging
attack on how the privileged groups use anti-Semitism to protect
"their attempted monopoly of social economic, and political
power." (McWilliams, xiii). McWilliams' critique can be
applied to the Boston Brahmins and Wall Street Lawyers who opposed
Brandeis.
Todd, A.
L. Justice on Trial: The Case of Louis D. Brandeis. New
York: McGraw-Hill Book Company, 1964. A well-documented record
of the Senate Judiciary Hearings on the Brandeis nomination.
Todd concentrates more on the political nature of the struggle
than on the anti-Semitism. He provides thorough background on
the personalities, and the arguments.
Cross-References
House Un-American
Activities Committee (HUAC), investigates Communists and Fascists
(1938); Attorney General A. Mitchell Palmer stages ("Palmer
Raids," arrests and deports thousands of radicals and immigrants
(1920); Immigration Acts impose a system of national quotas
that favor immigrants from northern and western Europe (1921);
Israel is created as homeland for Jews (1948).
