COMMENTARY: Happy Birthday, Justice Brandeis

c. 2006 Religion News Service (UNDATED) Louis D. Brandeis, one of America’s greatest Supreme Court justices, was born 150 years ago in Louisville, Ky., on Nov. 13, 1856. Today, a prestigious university in Waltham, Mass., bears his name as does the University of Louisville Law School and an Israeli kibbutz. Brandeis graduated from Harvard Law […]

c. 2006 Religion News Service

(UNDATED) Louis D. Brandeis, one of America’s greatest Supreme Court justices, was born 150 years ago in Louisville, Ky., on Nov. 13, 1856. Today, a prestigious university in Waltham, Mass., bears his name as does the University of Louisville Law School and an Israeli kibbutz.

Brandeis graduated from Harvard Law School at age 21 with the highest grades of any Harvard law student in history. As an outstanding public interest attorney in Boston, Brandeis became a national leader in many progressive causes.


In 1908, he wrote a legal brief containing detailed sociological information on how women were adversely affected by long working hours. It was the first time social science was used in legal matters, and that document became known as the “Brandeis Brief.” In a 1927 Supreme Court case, he wrote: “Men feared witches and burned women. It is the function of speech to free men from the bondage of irrational fears.”

Historians and legal scholars praise Brandeis’ service on the high court from 1916 to 1939. He was an ardent champion of the “right of privacy,” defining it as “the most comprehensive of rights and the right most valued by civilized men.” Brandeis also urged greater legal protection for free speech, even if such speech is unpopular among the majority.

However, two significant aspects of Brandeis’ life and career are frequently overlooked: the barely concealed anti-Semitism that greeted his nomination _ he was the first Jewish Supreme Court justice _ and Brandeis’ commitment to Zionism.

Brandeis’ nomination by President Woodrow Wilson set off a firestorm of criticism from A. Lawrence Lowell, the president of Harvard University; former President William Howard Taft; prominent senators, including Henry Cabot Lodge Sr. of Massachusetts; and many Boston lawyers and Wall Street tycoons.

Since Brandeis’ brilliant legal credentials could not be challenged, Lowell and 54 leading Bostonians questioned “whether he has the judicial temperament and capacity … required in a Judge of the Supreme Court … he has not the confidence of the people.”

Taft, who later served as chief justice in the 1920s alongside Brandeis, was not even subtle in his criticism: “Converting the United States into a Government by foreign groups is … the most fatal thing that can happen.” It seems clear Taft was referring to Jews when he used the term “foreign groups.”

Brandeis’ bitter Senate confirmation process lasted a record-breaking four months, with 1,316 pages of testimony. Like Jackie Robinson in 1947, who broke the color line in major league baseball, Brandeis in 1916 broke an earlier barrier of prejudice and bigotry, this one within the judiciary. As the first Jewish Supreme Court justice, Brandeis shattered the WASPy legal oligarchy, and opened doors of opportunity for all Americans to serve on every bench in the land.


Toward the end of the confirmation hearings, Charles Eliot, a former Harvard president, broke ranks with Lowell, Taft and Lodge and supported Brandeis, calling him a man of “courage … altruism and public spirit.” The final Senate vote was 47-22.

Brandeis became a strong public supporter of Zionism, the national liberation movement to establish a Jewish state in the Middle East, in 1912. It was a remarkable step for the Kentucky-born Brandeis who was not an observant religious Jew. During World War I, with Zionist leaders residing in both Germany and Britain, Brandeis became the chairman of the Provisional Executive for General Zionist Affairs. In 1914 and 1915, he traveled throughout the U.S. on a speaking tour linking the Zionist enterprise to his American identity. “To be a good American,” he declared, “meant that American Jews should be Zionists.”

Brandeis drew many Jews and Christians to Zionism at a time when the idea of an independent Jewish state seemed a remote, if not impossible, hope. Brandeis’ intellectually American-based Zionism was a counterpoint to the emotional and religiously based Zionism of many other Jews, especially those suffering pogroms and other forms of anti-Semitic persecution in Europe.

Once on the Supreme Court, Brandeis resigned his official Zionist leadership position, but remained committed to the cause until his death in 1941. In 1937, he urged President Franklin Roosevelt to oppose the British plan to partition Palestine into Jewish and Arab states, pressing instead for a Jewish commonwealth in the entire biblical homeland of the Jewish people.

(Rabbi Rudin, the American Jewish Committee’s senior interreligious adviser, is the author of the recently published book “The Baptizing of America: The Religious Right’s Plans for the Rest of Us.”)

KRE/PH END RUDIN

Editors: To obtain a photo of Rabbi Rudin, go to the RNS Web site at https://religionnews.com. On the lower right, click on “photos,” then search by subject or slug. If searching by subject, designate “exact phrase” for best results.


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