June 3, 2019: Jewish American Journeys: Louis Brandeis

[On June 1, 1916, Louis Brandeis was confirmed to the Supreme Court, becoming the first Jewish American Justice. So this week I’ll highlight the American stories of Brandeis and four other exemplary Jewish Americans, leading up to a special weekend tribute to one of our best Jewish Studies scholars!]

On three social and legal legacies of the “People’s Lawyer.”

To start with a bit of inside baseball info: I’m drafting this post the day after the news story broke about a widespread and nefarious scam through which wealthy parents fraudulently sought to get their kids into elite universities. That story has produced various subsequent conversations, including many focused on the problems with both the concept of “elite” education and those who generally gain access to it. As a Harvard alum myself, I fully agree with those critiques, but I’ll add this: sometimes egalitarian greatness can still emerge from such frustratingly elitist settings. And Louis Brandeis (1856-1941), who enrolled in Harvard Law School at the strikingly young age of 18, seems to have been just such a case: throughout his legal career Brandeis became known as the “People’s Lawyer,” due not only to his commitment to progressive causes and social justice, but also and especially to his frequent practice of not receiving payment so as not to have any conflicts of interest in his pursuit of those goals. Given that Brandeis began practicing law at the height (or depth) of the Gilded Age, that profoundly egalitarian ethos was both all the more striking and a vital alternative to some of the era’s dominant narratives (including in the realm of law).

Moreover, Brandeis contributed significantly to one of the Progressive Era’s most direct critiques of those Gilded Age narratives: the attacks on corporations and the hierarchical and destructive economic and social systems they too often embodied and extended. He did so through a number of sustained efforts across his career, including vocal support (and legal buttressing) for the antitrust movement of the late 19^th and early 20^th century. But he summed this philosophy up in a series of rigorously researched and passionately argued 1913 and 1914 Harper’s Weekly articles that became his 1914 book Other People’s Money and How the Bankers Use It. Besides its contemporary importance (and its frustratingly continued salience to our own era of “too big to fail” and the like), Brandeis’s book also helped push back against the period’s widespread anti-Semitic slurs (also still far too common in our own moment) that sought to link images of rapacious bankers with bigoted visions of Jews controlling the world. Such slurs shouldn’t have to be responded to at all, of course—but as recent events have illustrated, they can’t be ignored, and works and voices like Brandeis’s help reveal them for the nonsensical ugliness that they were and are.

Brandeis’s legal philosophies, both before and during his multi-decade stint on the Supreme Court, have likewise left important legacies that continue to echo down into our 21^st century society. On the high court that included a series of important 1920s cases on free speech (often, as in that case, decided in opposition to that freedom, with Brandeis dissenting significantly) and a series of 1930s ones that sought to balance the decade’s New Deal programs with limits on federal power and presidential overreach. But long before his Supreme Court tenure, Brandeis was one of the first legal thinkers to articulate the vital concept of a “right to privacy.” He did so first in a December 1890 Harvard Law Review article (co-authored with his lifelong friend and legal partner Samuel Warren), which he then followed up by working on numerous cases that further developed, clarified, and solidified this pivotal 20^th century legal idea. Even if Brandeis had remained a Boston-area lawyer, this article and concept would have been more than enough to secure his legal and social legacies—but instead they represent just one highlight in the long and illustrious career of the first Jewish American Supreme Court Justice.

Next journey tomorrow,

Ben

PS. What do you think? Other Jewish Americans you’d highlight?