In 1890 the Harvard Law Review published an article by samuel Warren and Louis Brandeis, entitled, The Right to Privacy.1 The article was precipitated by the observation and concern that “what is whispered in the closet shall be proclaimed from the housetops.”2 Brandeis and Warren were outraged by the press overstepping its freedom by intruding into private lives, negatively affecting reputations, and circulating portraits of private persons, without proper consent.3 These concerns provided the initial impetus for Warren and brandeis penning the article. Couching privacy as a kind of property right,4 the article engendered much judicial attention. It was, in fact, the ignition that sparked widespread judicial recognition of the tort, invasion of privacy, and is testimony to the impact that a scholarly article can have on the development of common law. At the same time, the article, co-authored by Louis Brandeis, may offer some insight into the Justice’s personality and temperament.5
The article was consistent with the private side of Louis Brandeis. by all accounts he was detached, distant, and aloof.6 This article explores why. Through that exploration it surveys the life of Louis Brandeis, the first Jewish Justice of the United states supreme Court, and one of the more brilliant justices to serve on the High Court’s bench. It sketches his background, law practice, embracement of Zionism, supreme Court nomination and opposition, and his positions on speech and privacy derived from cases he decided while he sat on the Court. It then focuses on a “ghost in his closet” (which may hold the key to his detachedness, penchant for privacy, and his interests and motivations), before delivering a final word.
In response to anti-semitism, after the 1848 failed revolution in the German states, and in search of economic opportunities, Adolph brandeis traveled to the United states, seeking to pave the way for family members.7 The following year a num- ber of his family, and his fiancée, Frederika, set sail from Hamburg and arrived in new York, where Adolph greeted them. not long afterward Adolph and Frederika married.8 Although conscious of their Jewish heritage, they were not particularly religious.9 They appeared to be like many other Jews who hailed from the German lands during this era, who negotiated a line between private Jewishness and public Germanness. The new couple were of cultured and middle-class means.10 After the birth of their first child, Fanny, they moved to Louisville, Kentucky, where two more children were born before Louis brandeis entered the world on november 13, 1856. Adolph’s business enterprises prospered.11
The Civil War began before Louis’s fifth birthday, and his early memories are those of his mother providing food and coffee to the northern army.12 At an early age Louis excelled in his school work, and received recognition and commendation for his achievements.13 In the early 1870s, the south was hit with economic depression, and the brandeis family fortune waned. In response, Adolph dissolved his business and took the family to Europe where they arrived in England in the summer of 1872. Louis, now sixteen years old, enjoyed some vacation time, and was then admitted into Annen-Realschule in Dresden, where he once again excelled in his studies.14 nonetheless, Louis became homesick and decided that he wanted to follow in the footsteps of his maternal uncle, Lewis Dembitz, and study law.15
Louis brandeis returned to Louisville along with his family, and in the fall of 1875 he entered Harvard Law school.16 There he was exposed to the case method, a revolutionary approach to teaching law at the time.17 He took to it, achieving extremely high scores in his courses. Graduating with distinction, he was selected by his classmates as the pick to deliver the oration at graduation.18
After a short courtship, Louis married a second cousin, Alice Goldmark, who was born of Viennese Jewish immigrants.19 Together they forged an “equal partnership,” whereby she advised Louis on the promotion of progressive causes.20 They had two daughters. Alice was a bit frail and suffered from periods of feeling fatigued and “out of sorts,” which were probably due to some type of mood disorder.
Louis had some health problems of his own. He was scrawny and physically weak. His eyes were afflicted with some anomaly that prevented him from long hours of reading, especially at night.22 These “disabilities,” which were to afflict him his entire life, did not impede him from excelling as a brilliant lawyer.
His Law Practice
Brandeis’s parents were not entirely happy when their son decided to practice law in st. Louis, instead of Louisville. nonetheless, they were supportive.23 He was admitted to the Missouri bar and began to practice with a private firm.24 Thereafter, he wrote his sister that he was “disposed to become melancholy and to moralize on the total depravity of man and woman.”25 It is likely that he suffered from at least extreme boredom or mild depression; but, that soon resolved when he departed for boston, seeking intellectual intercourse and excitement.26
Brandeis joined one of his Harvard Law school classmates in boston, Samuel Warren, with whom he previously co-authored The Right to Privacy article. Together, they practiced law in downtown boston. Part-time, brandeis clerked for Horace Gray, a Massachusetts supreme Court judge who was later to become an Associate Justice of the United states supreme Court. Through social networking connections, the Warren & brandeis law firm grew and flourished.27 Brandeis’s reputation for possessing good lawyer skills grew as well.28 A real crossroads emerged, however, when he was offered a full-time position as a professor at Harvard Law school.29 As tempting as it was, he turned it down in favor of developing his trial practice skills.30
Brandeis had a non-conventional philosophy and approach regarding client representation. He had a sense of fairness and he sought to impose it on his clients. In his estimation, he was not just representing the client but, in a sense, all sides of the dispute, including the public. His critics accused him, in this respect, of acting unethically, and outside the canons.31 Later, they were to oppose his appointment to the supreme Court for those and other reasons.32
Brandeis was perceived as a people’s lawyer, and probably saw himself in this mode, as well.33 In an address he delivered in 1905, he said: “We hear much of the ‘corporation lawyer,’ and far too little of the ‘people’s lawyer.’”34 He was more of a public interest lawyer, acting independently, seeking to “curb the excesses” of the big and the small litigant.35 He especially condemned what he referred to as the “curse of bigness.”36 He always sought to impose his sense of fairness into the mix of law. It was not just blind advocacy in favor of his client. To this extent he was always somewhat removed from his client—a bit detached.
Brandeis’s legal philosophy was evolving. Though initially on the side of management in the labor-management disputes, he began to see the unevenness of the playing field. He changed his views mid-stream, even as he prepared notes for a busi- ness law course he taught at MIT.37 Brandeis evolved to recognize “that the common law, built up under simpler conditions of living, gave an inadequate basis for the adjustment of the complex relations of the modern factory system.”38 He saw how these factories oppressed the worker. He undertook public causes. He fought against the inhumane conditions of the state-run pauper’s home in boston.39 He sought lower tariffs on behalf of the public interest.40 Siding with the best interests of the people and the community, brandeis argued these issues before legislative and regulatory bodies.41 Toward that end, he attacked monopolization of public transportation42 and rate increases for the railroads.43 He sympathized with the plight of the workers, recognizing their oppression by employers.44 When it came to public causes, he was passionate and indefatigable. Many believed that brandeis was supported by big money in his public causes. In fact, to the contrary, he often shouldered the financial burden himself.45
Even in his representation of public causes and his clients, others recognized his “aloofness,” his “otherness.” He stood apart from society’s institutions and from the circle of normative law practice. His detachment may have betrayed, and even been a product of, a dark secret in his ancestors’ closets.
He innovated the “brandeis brief ” in a social legislation case involving limiting work hours for women, which he supported.46 The brief amassed a large amount of empirical data on the detriment to the health and welfare of women working long hours.47 It was one of many contributions he made to the field of law. His causes, however, were not limited to law.
So enamored was Louis Brandeis with his uncle, Lewis Dembitz, that in his early teens he substituted his uncle’s last name for his own middle name, David. His uncle was an observant Jew who had a radical change of religiosity at age 13. brandeis, who basically experienced a secular Jewish upbringing in his own household, described how he was affected by his uncle’s celebration of the sabbath:
. . . I recall vividly the joy and awe with which my uncle . . . welcomed the arrival of the day and the piety with which he observed it. I remember the extra delicacies, lighting of the candles, prayers over a cup of wine, quaint chants and Uncle Lewis pouring over books most of the day. I remember more particularly an elusive something about him which was spoken of as the ‘sabbath peace’ . . . Uncle Lewis used to say that he was enjoying a foretaste of heaven.48
Uncle Lewis was a lawyer, an active Zionist, and an Orthodox Jew. Although brandeis would never appropriate the brand of Jewish piety exhibited by his uncle, he did embrace with passion law and, later in his life, Zionism.49
The term Zionism is derived from the Hebrew bible, where the word Zion is often used by the prophets to identify the land that was promised to the Jewish people by God through the patriarchs. The spirit of Zionism, which is the heart-felt desire to return to that land, was expressed by the Psalmist on the occasion of the babylonian exile:
By the rivers of babylon, there we sat down, yea, we wept, when we re- membered Zion. We hung our harps upon the willows in the midst thereof, for there they that carried us away captive required of us a song; and they that wasted us required of us mirth, saying, sing us one of the songs of Zion. How shall we sing the Lord’s song in a foreign land? If I forget thee, O Jerusalem, let my right hand forget her cunning. If I do not remember thee, let my tongue cleave to the roof of my mouth, if I prefer not Jerusalem above my chief joy.50
This sentiment to remember and return to Zion is at the heart of Zionism. beginning not long after the destruction of the second Temple in 70 C.E., this desire was expressed throughout the ages in prayers, poems, and other writings. In fact, corporate prayer held three times a day in the synagogue implores God to rebuild Zion and the Temple in Jerusalem.51
Modern Zionism did not erupt in organized form until the third quarter of the nineteenth century. Fueled by anti-semitism throughout Europe, and a pioneer spirit, Jewish people started to return to the Land in waves of immigration starting in the 1880s. There were various brands of Zionism, depending upon the motivations. Religious Zionism was a strand that received its impetus from religious inspiration, and was rooted in messianism. Practical Zionists were rooted in a desire to see a homeland for the Jewish people in order to escape the cruel impact of anti-semitism throughout the world. secular Zionism sought to achieve a utopian ideal through the Jewish state. Although there were various strains of Zionism expressed by different philosophies and motivations, it is Theodor Herzl, who is recognized as the father of modern Zionism. Herzl was not a religious Jew. With his form of political Zionism, he sought a homeland for the Jewish people scattered throughout the world, secured by international law. This plan he mapped out in his book, Der Judenstaat.52
Brandeis was captivated by Herzl’s vision in 1910 when presented to him by Jacob de Haas, an editor of a boston Jewish newspaper. De Haas, who approached brandeis about savings bank life insurance, had been a close associate of Theodor Herzl, who had previously dispatched de Haas to America for the purpose of fostering American Zionism. Herzl died suddenly in 1904, but his vision and his World Zionist Organization were still very much alive. After the political discussion ended, de Haas invoked the name of brandeis’s uncle, Lewis Dembitz, without apparent knowledge of brandeis’s strong affection toward him. This piqued brandeis’s interest and he insisted that de Haas tell him more about the connection between his uncle and Zionism. De Haas readily complied and followed up with literature.53 Not long thereafter brandeis was a “Zionist convert.”54
In 1914, when hostilities broke out in the world, the plight of the European Jews hung in the balance. brandeis recognized the sufferings of the Jews in Russia, Poland, and other eastern European nations, as evidenced by a letter he wrote to his brother.55 That same year in boston, brandeis appeared on the platform at a Zionist gathering. Dr. nahum sokolow spoke, concluding that a Jewish state in Palestine was the only solution to the “homeless” position of the Jews. In response, brandeis jumped up and responded:
Thank you, Dr. sokolow, you have brought me back to my people. Throughout long years which represent my own life, I have been to a great extent separated from Jews. I am very ignorant in things Jewish.56
Brandeis was becoming impassioned with the cause of Zionism, and he wholeheartedly embraced it with the vitality to which he was accustomed. Although his upbringing was nominal and he was not an observant Jew, he longed for something meaningfully “spiritual.” brandeis experienced feelings of hopelessness at times,57 feelings of emptiness, perhaps precipitated by guilt pangs of disassociation from his religion and a need to champion a cause for “his people.” Although detached from Judaism, he was certainly not ignorant of the history and the plight of the Jewish people throughout the ages—their wanderings, exile, and persecutions—from the “days in Egypt” to the present plight. He had empathy for the oppressed, and these were times of oppression. Jews in Russia were suffering from false accusations, pillages, pogroms, murders, and massacres. They were systematically excluded from big cities, choice jobs, and educational opportunities.58 In Germany, where emancipation was secured, still anti-semitism was rampant. The Dreyfus affair in France59 was a witness that even in the face of emancipation, Jews were singled out for the most extreme discrimination.
Brandeis could not forget that he was Jewish. He was reminded of it on more than one occasion in his practice by those who would target him for negative comments based on his heritage; even much of the opposition to his nomination as Associate Justice of the supreme Court was rooted in anti-semitism.60 And even an Associate Justice who was to sit with brandeis on the High Court displayed anti- semitic sentiments directed toward brandeis.61 Hence, he could not deny that anti-semitism existed even in the land that was so filled with opportunity for him and so many others. He was a man waiting for the right cause. Zionism was that cause. When he realized that he could make a difference for the Jewish people—an afflicted people—he was ready to rise to the occasion. He needed only the opportunity. That opportunity emerged first in new York in 1914, when the need arose to establish a Provisional Emergency Zionist Committee in the United states to facilitate aid to oppressed world Jewry. De Haas nominated brandeis as the chairman of the Committee. He accepted the appointment and pushed ahead with the zeal of an inspired lawyer.62 Thereafter, Brandeis rose to lead and reinvigorate the Federation of American Zionists (the Federation) by increasing its membership ten-fold plus and its budget substantially.63
Zionism was certainly not universal throughout the worldwide Jewish community. It had many opponents who were well respected. Judah Magnes, the first president of Hebrew University in Jerusalem, Martin buber, the famous Jewish philosopher, and Albert Einstein all opposed “conventional Zionisms” and opted instead for a type of bi-nationalism (two-state) form of government. This was a time when the bulk of western European Jews were settled into their emancipation. They were assimilated in France and Germany, and had negotiated a sort of compromise with their religious tradition as a quid pro quo for being citizens of their country. All were not enamored with the idea of a Jewish state. They preferred to be French first and German first and English first, and to enjoy the fruits of acculturation.64 Louis brandeis, nonetheless, recognized the value of a separate state for the Jewish people, and embraced the vision of Theodor Herzl as presented to him by de Haas.65
Brandeis did not believe that Israel was for every Jewish person. He found his identity as an American Jew and certainly believed he could advance the Zionist cause in America. Brandeis’s Zionism was an American Zionism. Zionism, he believed, reflected the ideals of Americanism: democracy, egalitarianism, and social justice. In his estimation, Zionism and Americanism were compatible. Good Jews made good Americans and good Jews needed to be Zionists. brandeis energized Zionism in America, and his charisma was an attraction for American Jewry. He sought to unify the American Zionist movement into a cohesive unity. Toward that end, he experienced much opposition and much success.66
Conflict was brewing between the American Jewish Committee (AJC), led by Louis Marshall, who was not endeared to Zionism, and the Federation led by Louis brandeis. brandeis recognized the need for a Jewish Congress, which would gener- ate representatives from the Jewish organizations, to deal with the issues confronting Diaspora Jewry. In his predictable posture, he opted for an egalitarian democratic approach, with a broad umbrella of representation and openness. Marshall clung to the idea of a narrow, closed forum, with selected groups and more of a republican form of representation. There appeared to be an impasse. The AJC boycotted the preliminary conference for the Congress. but Brandeis’s stature was rising, and when he was nominated to the U.s. supreme Court in the winter of 1916, there was no higher profile Jew in the country. The AJC was having a meeting at the Astor Hotel in new York to discuss the Congress, and Marshall invited brandeis giving the impression that he was willing to reconcile and compromise. However, at that meeting, Brandeis was verbally ambushed by Judah Magnes and others. This moved him to withdraw from all offices and leadership positions connected to Zionism. nonetheless, he continued to be a vibrant spokesman for its cause, and to rule through his Zionist supporters “behind the scenes.” Brandeis worked hard for his vision of one Zionist Organization of America (ZOA) under which all American Zionists would rally. In the spring of 1918 the Federation of American Zionists, a loose organization that sought to consolidate other organizations, disbanded, along with many other Zionist organizations. To fill the void, the ZOA was formed with its purpose to raise money for the distressed Jews throughout Europe and to assist in building up Palestine as a safe haven for Jews. Out of its formation came the Pittsburgh Platform, which included a focus on the rights of all peoples in Palestine, land development, free education, and Hebrew as the lingua franca.67
Brandeis worked in the U.s., much as did Theodor Herzl had worked in the world scene—through political diplomacy. In 1917 the U.s. entered the war, and britain announced what came to be known as the balfour Declaration: that the british Government would “view with favor the establishment in Palestine of a na- tional home for the Jewish people . . . ” That declaration committed Great britain to “use [its] best efforts to facilitate the achievement of this object . . . ”68 brandeis and Chaim Weizmann worked together to help formulate this precise wording, and brandeis lobbied to gain President Wilson’s approval. Then came the victory of the Allies. Turkey surrendered, and Palestine came under british rule. The Peace Conference in Paris was the opportunity for the Zionists to “hold britain’s feet to the fire.” Although brandeis did not initially go to the Conference, he sent Felix Frankfurter, who did much there to advance the Zionist cause. In the summer Court recess of 1919, along with his daughter and de Haas, brandeis set sail for Paris to make his appearance at the Peace Conference with an eye toward accelerating the Zionist hope. He traveled to Paris, Egypt, and Palestine, and back to Paris. He was moved by Jerusalem and experienced an emotional reaction, which he recorded in a letter to his wife.69 However, he also saw the malaria infestation, and the british soldier’s anti-semitism, which was infecting the Arabs.70 When he returned to Paris, he parried with Weizmann over the place of the World Zionist Organization, the strategy for eliminating malaria, and the best way to build Palestine. both men were strong leaders with a sense of vision. Unfortunately, they agreed on little.71
In the spring of 1920, the victorious nations concluded a peace at san Remo, where they embraced the establishment of a homeland for the Jewish people under a british Protectorate. It was there that brandeis offered his view on the proper way to handle matters of accounting. It was the eastern European approach to aggregate all of the donations of funds into one account versus the German particularity of segregating accounts to insure that there were checks and balances against misuse of the funds. At the same time, the American delegations were beginning to resent brandeis’s invisibleness in the movement. His popularity began to wane. His last stand with Weizmann occurred in Cleveland, Ohio where the Weizmann posi- tion at the ZOA on commingling of general donations and investments prevailed. Pursuant to brandeis’s directions, his supporters who were on the executive commit- tee resigned and exited the convention. brandeis was not prone to compromise on principles that he perceived as moral imperatives. Although he withdrew from the Cleveland ZOA conference, he did not go away. He retreated to a lower profile and, along with his Zionist associates, prepared to return to fight again for the principles and the approach to Zionism to which he was strongly attached.72
When it was apparent that the ZOA had fallen into a mode of ineffectiveness,73 and even unscrupulous activities, the Brandeis group sought to reclaim leadership. But the incumbents were not prone to “give up the ship” without a fight, even if it was sinking. The 1928 convention was held in Pittsburgh, and although the brandeis group made a good showing, the incumbent, Louis Lipsky, held on to the top executive seat. The following year, Palestine erupted in bloodshed when Arab mobs attacked Jews in their shops and homes, killing more than 100.74 Resentment between the Arabs and the Jews in Palestine ran both ways. The effendis, the wealthy Arab landowners, were incensed that the Jewish settlers were encroaching on their enclave; they were fearful that the fellahin (small Arab farmers) would be influenced by the European model of representative government. They were offended by the assault on their sovereignty and were beginning to aspire to develop their own nationalist aspirations. The Jews were equally as incensed at these landowners for killing innocent settlers. Tensions ran high.75
Britain was reneging on their balfour commitment of 1917. In fact, it came to Brandeis’s attention that britain was intending to define the doctrine by limiting immigration of Jews to Palestine. His information turned out to be essentially correct. Britain issued its “White Paper” on May 17, 1939, which announced a restriction of Jewish immigration to Palestine to 75,000 Jews over the next five years, plus severe limitations on Jewish purchase of land.76 There were pockets of anti-semitism deeply rooted in the military and other high circles in britain,77 which was no doubt fueling the anti-semitism against the Jewish settlers. The british solution was to curb Jewish immigration. none of this was acceptable to brandeis. As a “prophet,” he saw the storm clouds gathering on the distant horizon and mobilized his “troops,” invoking his resources to recapture the ZOA. Although he was unwilling to re-assume a public leadership role, he nonetheless orchestrated a peaceful coup, which put his brand of practical leadership back in control of the ZOA. Then he sought to persuade british diplomats of the need to honor the balfour Declaration. He “lobbied” the new President, FDR. He informed the public of the growing threat in Germany, with the ascent of Adolph Hitler, and urged the German Jewish community to depart from Germany. He did all of this while he sat as one of the “nine prophets” on the highest court in the land of the United states.78
Louis Brandeis was no stranger to President Wilson. He had worked hard to get Wilson elected; and when in the White House, Wilson called upon brandeis for advice frequently, particularly on economic matters. He wanted to offer brandeis a cabinet position, but he was unable to stand up against the political opposition to such an appointment.79 Brandeis was passed over for Attorney General in favor of James McReynolds, a southern Democrat, who was later elevated to the High Court, where he sat with Brandeis.80 Wilson remembered brandeis when a vacancy occurred on the High Court.81 Perhaps Wilson thought that the appointment would enhance his chances for another term, by securing the progressive and Jewish vote.82 There had never before been a Jew nominated to the supreme Court, although in 1853, President Millard Fillmore was considering Judah Benjamin for appointment. Benjamin declined the offer, opting instead to run for a senate seat.83 Now, President Wilson submitted Brandeis’s name for confirmation to the senate, knowing that it would engender controversy. It was a surprise to many, and a disappointment to former President Howard Taft who clearly aspired to the High Court seat.84 Controversy did swirl. Behind the objections that his character was flawed, that he lacked integrity, judicial temperament, and was unethical and even unscrupulous, were shades of age-old anti-Jewish sentiment.85 The New York Sun implied that the fact that he was Jewish might work in his favor:
[I]f he were obliged to go before the senate purely on his merits he would be defeated. There is, however, danger, that the racial issue will become involved in the struggle, and in that event it would be difficult to predict how members of the senate would vote.86
Senators did not want to appear opposed to brandeis for fear that it would be construed as anti-semitic. Henry Cabot Lodge, the republican senator from Massachusetts, parroted the Sun:
If it were not that brandeis is a Jew, and a German Jew, he would never have been appointed and he would not have a baker’s dozen of votes in the senate.87
The President of Harvard University, A. Lawrence Lowell, signed a petition along with fifty-four other lawyers, and in a letter accused brandeis of being unscrupulous. Years later Lowell sought to impose Jewish quotas on Harvard admissions,88 analogous to the numerus clausus imposed on the Jews in Europe in the nineteenth and twentieth centuries.89
Those who testified in opposition to brandeis in the senate Judiciary subcom- mittee hearings were, for the most part, disgruntled former clients or opponents in the legal arena. They came to the hearings to vent, charging that brandeis did not make full disclosure, that he undertook a case where there was a conflict of interest, or that he failed to represent their best interests.90 The common thread run- ning throughout the grumblings was finances. behind that may have been a type of economic anti-semitism that was common throughout western Europe, but here dressed in a more sophisticated cloak. For example, in Germany, responsibility for all of the financial woes of the state were expressly placed on the Jews. Here we have a subtler form, where the victims of economic misfortunes, or the losers in legal contests, blamed brandeis, the representative Jew. The anti-semitic motivation may have even escaped the conscious level of the accuser. nonetheless, it was perva- sively present. Arthur Hill, a boston attorney explained the opposition to brandeis by saying “that Mr. brandeis is an outsider, successful and a Jew” which “sufficiently explained most of the feeling against him.”91 President Wilson told stephen Wise, a rabbi and prominent Zionist spokesman: “There is more lying about the brandeis case than any matter of which I know.”92 These comments hinted at plain and simple anti-Jewish sentiment.
In a 3-2 straight party vote, the Judiciary subcommittee recommended confir- mation.93 The full Committee, also along party lines, 10-8, adopted the subcommit- tee’s recommendation, and the senate followed, 47-22 in favor of confirmation.94 On June 4, 1916, Louis Dembitz brandeis was sworn in as the first Jewish Justice to the United states supreme Court.95 More importantly, he has been acclaimed almost universally, by liberals and conservatives alike, as one of the great justices of all time.
Brandeis brought his experience as a lawyer to the bench. He was a hard-working justice, who was very meticulous in the preparation of his opinions. He used persuasion to win over the justices to his point of view, rather than internal political “trade offs” and compromises, so customary on the High Court.96
Brandeis had a heart for academia. He invited his friend Felix Frankfurter, a Harvard law professor, to urge law students to critique the court’s opinions in law review articles.97 Brandeis “obsessed” over the facts of a case. Many of his opinions would contain elongated recitations of the law, in attempts to lay out, for example, the facts behind a legislative enactment. Brandeis labored over his opinions. They were often “prophetic” reflections of a man speaking ahead his time. His opinions in the area of human liberties manifested a real sense of awareness of the government’s potential for oppressing people. His position on speech and privacy reflect his understanding of individual dignity and human rights.
The First Amendment speech provision was not well developed when brandeis came to the court in 1916. Brandeis started to get dosages of free speech cases, in reaction to President Wilson’s imposed limitations on free speech during World War I. Oliver Wendall Holmes authored the opinion in Schenk v. United States.98 In it he bounded free speech by “clear and present danger.”99 Although Brandeis joined in the majority he later regretted it,100 and in a trilogy of speech cases he began to move the law in the direction where speech is paramount, and like property rights, protected through the Due Process clause. For brandeis, “clear and present danger” without a more refined definition did not go far enough to give speech the protection intended by the Framers of the Constitution. He was not comfortable leaving the determination of “clear and present danger” to jurors who were “untrained fact finders.” Hence, he opined in his dissenting opinion in Schaefer v. United States101 that the alleged speech must meet a threshold test before going to the jury:
If the words were of such a nature and were used under such circumstances that men, judging in calmness, could not reasonably say that they created a clear and present danger that they would bring about the evil which Congress sought and had a right to prevent, then it is the duty of the trial judge to withdraw the case from the consideration of the jury . . .102
Brandeis, in establishing a procedural safeguard and a rule of reason approach set the tone for future free speech cases. Also, dissenting in Pierce v. United States,103 he decided that it was not reasonable to believe that a socialist party leaflet that expressed horror at the war and asserted that financial interests had triggered the U.s.’s involvement was a reasonable threat that could be punished. brandeis capstoned his 1920 term of free speech dissents in Gilbert v. Minnesota,104 where he voted against upholding a state statute that prohibited speeches against the war. He denounced the statute as overbroad because it condemned the right to teach pacifism in the home. He stated: “I cannot believe that the liberty guaranteed by the Fourteenth Amendment includes only liberty to acquire and to enjoy property.”105 Here was the inception of the “absorption doctrine” that would begin a “revolution” in judicial activism—the protection of individual liberties through selective absorption of the guarantees in the bill of Rights, applied to the states. now brandeis was ready to move with passion instead of his normal careful deliberation on the facts. In Whitney V. California,106 Brandeis concurred in a case involving a statute that made it illegal to organize and assemble with the Communist Party. In an emotionally-charged opinion, he appealed to the Constitution and the intent of the framers, and laid out a clearer definition of the limits of the Free speech clause. In doing so, he lined his opinion with the reason for free speech. It was not just, according to Brandeis, for the purpose of permitting a free market approach to speech. It is for freedom and liberty. “They believed liberty to be the secret of happiness and courage to be the secret of liberty.”107 He went on to say:
Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one.108
Brandeis went on to define imminent as where there is no time to allow for oppositional speech to permit full discussion. The remedy, he said, is not silence, but more speech to counter the fallacies of the words that are spoken. Only an emergency would justify repression.109 Although he was out of sync with the court of that day, he laid the groundwork for later court opinions that would embrace his mature thoughts on free speech, thus affording meaning and dignity to the individual right of free speech.
Brandeis, in his co-authored Right to Privacy article, anticipated some of the privacy problems that were to challenge society thirty years later. Now Brandeis was on the court and he could do more than just write a law review article. He had the power to participate in making law. The threat was not just newspaper reporters who were publishing embarrassing reports, but now it was new technology that allowed the government to snoop into the privacy of people’s homes. Wire tapping devices enabled officials to hear private telephone conversations.
Brandeis had his chance to air his views in Olmstead v. United States.110 That case involved government wiretapping without a warrant, directed toward the federal government’s attempts to enforce Prohibition. Home and office phones were tapped, producing a mound of incriminating evidence against suspects including a seattle police officer. The majority upheld the wiretaps, musing that they did not violate the fourth amendment’s proscription against unreasonable searches and seizures. Chief Justice William Howard Taft, writing for the majority, took a formalistic stand and observed that there was no entry into the defendants’ homes, no appropriation of any material things, and that it was tantamount to listening to a conversation where the speakers were not coerced into saying anything. brandeis was outraged and in a rare flare of emotion wrote:
Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means—to declare that Government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.111
Contrary to Taft, Brandeis saw the fourth amendment protection as broader than the material invasion of a house. He looked at unwarranted government intrusions into privacy as the very stuff that the framers sought to protect against. They protected the person, not just the place. He also had the prescience to anticipate new ways of surveillance. He brought full circle his law review article into the High Court’s opinion (albeit dissenting), when he recognized that what is “whispered in the closet” would wind up on the court record. It took forty years before the High Court recognized the wisdom of Brandeis’s approach in this arena.112 In his opinion, Brandeis characterized the right to constitutional privacy as the “right to be let alone.” subsequent justices cited his language and position to constitutionalize privacy in birth control,113 abortion114 and the right to die115 cases. We do not know how Brandeis would have ruled in those cases since his opinion in Olmstead was confined to wiretapping.116
In both free speech and privacy cases, Brandeis sought to limit the power of government in the private lives of people. As such, his views could be characterized as liberal or even progressive in its time. In searching for the source of brandeis’s liberalism one may be prone to cite the fact that he was Jewish, and liberalism was a political trait particularly embraced by the masses of Jews in the eastern regions. However, brandeis is not susceptible to being “boxed” into this over-simplistic reasoning. A person’s judicial philosophy and approach to life and the law does not turn on one strand. but it may not be too farfetched to imagine that a contributing factor to brandeis’s progressivism in the area of free speech and privacy is linked, at least in part, to the “ghost in his closet.”
In the 1650s, on the heels of the Chmielnicki massacres of Jews in Poland, there arose in the Ottoman Empire to prominence a charismatic man named shabbetai Zvi, who some believed to be the Messiah of the Jewish people. He exhibited bizarre conduct, including marrying a Torah, pronouncing the forbidden name of God, and engaging in antinomian practices. In salonika he was placed under the ban, and excommunicated from the Jewish community, apparently due to his bizarre conduct and refusal to be accountable.118 It was nathan, a very well-respected traditionalist, and a highly regarded kabbalist, who first affirmed the identity of Zvi as Messiah.119 In 1666 Zvi went public with the pronouncement and, in a state of mania, to which he was prone, approached the Ottoman sultan, thinking that the sultan’s “diadem” would be placed on his own head. Instead, he was imprisoned, and under threat of “losing his head,” converted to Islam. His ardent followers, some very prominent rabbis, refused to abandon him, but instead explained that it was necessary for the Messiah to descend into the depths of heretical sin in order to gather together the “lost sparks” and to restore the “broken vessels,” that shattered and dispersed during creation.120 This cosmic reparation (tikkun), as understood by his adherents, would occur in due time, and this thought prevailed among Zvi’s followers into the twentieth century. According to the historian Gershom scholem, the bulk of world Jewry accepted Zvi’s candidacy for Messiah, before his conversion, only to repudiate him after his heresy.121 Many prominent rabbis and others sought to cover up their involvement and adherence to Zvi.122 Others continued to follow him. Some converted to Islam, known as the Donmehs; some converted to Catholicism, while some maintained their Jewish identity. Zvi’s radical behavior accompanying his ascendancy to “messiahship” apparently served as a model for another pseudo-Messiah, Jacob Frank, who appeared in Poland the following century.123
Frank (1726–1791) took up the leadership of the shabbatean movement in Poland circa 1755.124 It was an unsettled time for Jews in southern Poland, with Cossack uprisings, economic stagnation, and political indecisiveness, all of which added to their susceptibility to messianic ideations. Like Zvi, Frank converted to Islam, and like Zvi he was pursued by the government authorities. He purported to be the incarnation of one or more of the emanations of God.125 Because of his antinomian conduct, he was excommunicated from the Jewish community; he then gravitated toward the Catholic community, into which he and some of his followers were baptized. Because of his heretical beliefs he was pursued by the Inquisition, and ultimately imprisoned for thirteen years. Upon his release he gathered twelve apostles and twelve concubines to serve him, and lived out the rest of his life in wealth, nobility, and debauchery. His theology was a strange mixture of shabbateanism, neo-kabbalism, and mythology, all designed to portray himself as the Messiah. He engaged in various forms of debauchery and sin as scriptural and sacred rites, all of which were consistent with his antinomian cultic style, and narcissistic needs.126 After his death, his mantle ultimately fell upon his daughter Eva who took up the “throne.”127 The Frankist movement was headquartered in Offenbach, Germany, until her death in 1816. The Frankists continued their activities well into the nineteenth century in Europe, and a number of his disciples immigrated to the United states in the mid-nineteenth century, including Louis brandeis’s family.128
Louis Brandeis was a descendant of one of the prominent shabbatean/Frankist families of Prague.129 They did not follow Frank’s example of conversion to Islam or Catholicism, but maintained a Jewish identity, though very detached from Jewish ritual and practice. His mother Frederika Dembitz Goldmark brandeis “disdained formal religious ceremonies and encouraged her children to value ethical teachings of religion, including Judaism, while eschewing the age-old rituals.”130 Brandeis grew up in the family environment, where, though born a Jew, he was not raised as a Jew. In fact, he celebrated Christmas,131 but not the Jewish holidays; neither did he keep the kosher laws, or the sabbath.132 He was very disengaged from Jewish practice.
Brandeis’s maternal uncle, Gottlieb Wehle, wrote an ethical will in which he exhorts members of his family to “respect their ancestors’ tradition of antinomian disdain for the normative Judaism of traditional rabbis.”133 This was perhaps a reaction to the family’s waning allegiance to the Frank sect. It was Justice Brandeis’s relatives, who revealed a copy of a portion of this will to Gershom scholem, who published it.134 In fact, Brandeis manifested a great interest in his mother’s background as evidenced by his insistence that she write down the history of the family, which she did.135 Although she never clearly expressed her Frankist background, she did allude to it. In her letters she gives some insight into why Louis Brandeis was so divorced from traditional Judaism. The environment as presented in her letters in which she detailed her family background evinces an anti-traditional atmosphere. It harkened back to a time in Prague when it was normative to be Jewish ethnically, German culturally, and Austrian politically.136 Yet, the Brandeis family, obviously influenced by the Frankist sect, had shunned their Jewishness and failed to expose their son Louis to anything more than the vagaries of Jewish identity.
Brandeis’s mother gave him a copy of a picture of Eva Frank137 (who was Jacob Frank’s daughter and his spiritual successor upon his death), which was handed down and reserved for those who were privileged descendants of Frankists. This generation of Frankists had thrown off and/or forgotten the deviant ways of the founder; previous generations had actually destroyed the written remnants of their affiliation with the sect, even going door to door to collect any memoirs or written traces of the sect, so that they could discard the embarrassing “evidence.”138 They continued, however, to maintain a certain elitist pride about being connected to the sect’s past. This pride was reflected in Brandeis’s mother’s letters to her son; her descriptions of the close-knit community bespeak the Frankist sect in clandestine terms. Hence, we know that Louis Brandeis knew of this “ghost in the closet,” that would not be wise to profess openly. This may have made him particularly sensitive about the importance of the right to privacy (which he defined in his co-authored Right to Privacy article as the right to an “inviolate personality”) and the right to speak one’s conscience.
Louis Brandeis took his second cousin, Alice, as his bride, a practice not uncommon for Jewish people and Frankists during this era. she too was a descendant of the circle of crypto-Frankist Jews,139 and was undoubtedly aware of the secret of the family’s past.
It is well settled that people possess learned traits, and in this respect there is much transfer from parent to child. For example, Holocaust survivors’ children often carry the scars and the effects of growing up in a home dominated by the fallout of the traumatic impact of the Holocaust on their parents. This may manifest itself in a variety of ingrained responses that are displayed throughout life; for example, paranoia, phobias, withdrawal, and many other traits. It is not far-fetched to speculate that Louis brandeis’s personality was partly shaped by the secret in the closet that was possessed, and even repressed, by his parents who came to the U.s. to start a new life, obviously free of cultic influence.
brandeis has been portrayed by biographers, historians, and by those who knew him as “detached,” and an “outsider.”
[T]hroughout his life, Brandeis saw himself standing alone at the margin of his society. Though he had many opportunities to deny this, to find some comfortable status, Brandeis always turned away; he always found a place to stay alone.140
Perhaps this aloofness can be explained because he was Jewish in a gentile world.141 Others trace it to a vicarious identification with his mother. She communicated to Louis by letter that she was extremely pained due to the death of her mother when she was age 12.142 And he did take a sincere interest in his mother’s background.
Another possibility contributing to this detachedness, noticeably absent from any serious scholarly consideration, is the secret shabbatean/Frankist connection. The nineteenth-century Frankists were known to withdraw into a hiding place of solitude, where they were careful not to reveal too much about themselves for fear of reprisals. This learned trait may have been transferred to Louis, even unconsciously. Although he did readily identify as a Jew, he must have been timid and even uncomfortable around Jews who had a normative Jewish upbringing, which he lacked. It may have even made him self-conscious. He was detached from the world, and from people. His detachment from Judaism was another composite in the mystery of Brandeis’s “detachment from the world.”
Psychologically, his embracement of Zionism may have met a deep-seated need to identify with his people in a way that would not be “offensive” to his sectual roots. He was a Jew but not religious. For him Judaism was a people oppressed, and he knew that historically he was connected to this people. He did not, however, embrace the strain of Zionism engaged by his uncle, an orthodox Jew, who perhaps reacted against his anti-Talmudic family heritage. Zionism provided a place to belong for Brandeis, a safe place where he could be identified with a Jewish cause without the necessity of practicing, or even pretending to be traditional in any way. It negotiated a proper place for him not so inconsistent with the views of his parents. He maintained an “antinomian stance,” while embracing his Jewishness. Psychologically, Zionism for brandeis assuaged his chronic detachment, and it made him feel good to be so associated. It was Judaism without religious Jewishness.
Moreover, Brandeis’s passion for the “right to privacy” may have been driven by the environmental aura produced by his ancestors’ obsession with hiding the Frankist connection. In his passionate dissent in Olmstead, one can almost hear his back- ground cries ringing through his opinion and envision his “vicarious experience”:
The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfaction of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the govern- ment, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.143
His progressive opinions on free speech were but a correlative of the right to privacy. In a sense he is saying, let us have our freedom in our speech and our pri- vacy in our person. Give us the freedom to say what we want and the liberty to be private about what we say. These positions may have been influenced at least in part by that “ghost in the closet.”
Louis Dembitz Brandeis was a people’s lawyer. He put money second, although he had plenty of it. He had met the economic threshold and never equated materialism with success or anything more than a by-product of his “public interest” goals. His focus was on affecting policies and issues that would better society. He was confident in his intellect and ability to find answers to solve difficult questions. He carried his experience and his ability as a lawyer to the bench. Once there, he exerted the same energy that he did in his law practice. He tended toward perfectionism. He focused on detail and particularly the facts. He has left a great legacy for practitioners and judges alike to emulate. He was a principled pragmatist, who possessed a consistent moral quality. However, like all members of the human race he was flawed.
Brandeis’s personality reflected an aloofness, a detachedness. Yet, he sought to compensate by interacting with others, and by re-attaching himself to the roots of Jewishness in a way that was compatible with his background and orientation. He embraced Zionism as an antidote for his lack of attachment to Judaism, presumably a product of parental upbringing and influence. Perhaps unconsciously he sought to wipe the slate clean of his cultic heritage,144 by building on a mainstream idea in Judaism. It was an “American” form that he fashioned. It was not the religious form, nor even a “Palestine for every Jew” form. It was one that recognized that a person could be attached to Palestine without even being there physically. It was a form that embraced an understanding that Judaism was for all Jews, secular and religious, in the land or outside of the land. It was this unifying bond, this “attachment” that brandeis so desperately lacked during the first half-century of his life, that he sought to fill in his later life. Zionism may have sanitized his link to his shabbatean/Frankist past; or, perhaps it broke the link. Regardless, it provided a new heritage for his successors. At the same time, it undoubtedly gave brandeis feelings of satisfaction and wholeness.
- Samuel D. Warren and Louis D. brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890). For a bit of commentary on the article see Lewis J. Paper, Brandeis: An Intimate Biography of One of America’s Truly Great Supreme Court Justices. secaucus, n.J.: Citadel Press, 1983, 33–36; see also, Melvin I. Urofsky, Louis D. Brandeis: A Life. new York: Pantheon, 2009, 98–102.
- Warren and brandeis, 195.
- “The press is overstepping in every direction the obvious bounds of propriety and decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery.” Ibid., 196.
- Ibid., 205.
- It cannot be certain which co-author of the article was responsible for what portions. We do know that Warren enlisted brandeis to help with the article. The listed authorship with Warren first, signals that he was the lead author, since it is out of alphabetical order. How much brandeis massaged and embellished the manuscript is unknown. Yet, he certainly identified with the basic content and thrust of the article. Later, when he was on the supreme Court, he drew on the article when opining on a privacy case. see Olmstead v. United states, 277 U.s. 438 (1927).
- See, for example, Urofsky, 17, 171, 338, 470, 524.
- Ibid., 3–8; Arthur Hertzberg, The Jews in America. new York: simon & schuster, 1989, 102–12.
- Paper, 6–9; Urofsky, 114.
- Paper, 199.
- Urofsky, 4–5.
- They included a flour mill, a tobacco factory, an 1100-acre farm and a steam freighter. Paper, 9.
- Ibid., 10.
- Ibid., 11.
- Ibid., 12
- In fact, later, brandeis changed his middle name from David to Dembitz, due to his great admiration for his uncle. Ibid., 13; Urofsky, 18.
- Urofsky, 23–24.
- Paper, 14.
- He amassed a two-year average of 97, which included 3 marks of 100 and one of 99. Ibid., 16; Urofsky, 31.
- Ibid., 115.
- Ibid., 121–25, 363.
- Paper, 15.
- Ibid., 17–18.
- This employment opportunity in the law office of James Taussig was made possible through brandeis’s brother-in-law, also a lawyer in st. Louis. Ibid., 17. Although he enjoyed a lot of indepen- dence and freedom, he was not motivated by the city or the people. He, in fact, experienced boredom. Ibid., 17–19. For him, the cases were not interesting. Out of his practice in st. Louis did come a case that moved him to write an article supporting a creditor’s right to sue an estate on a contract that a trustee of an estate made. The article appeared in the American Law Review, ibid.,18–19, which at the time was edited by Oliver Wendall Holmes, a future eminent U.s. supreme Court justice.
- Ibid., 19.
- Ibid., 17–19.
- Urofsky, 46–74.
- For example, Brandeis sought to resolve disputes short of litigation. burt, 49. He was a skilled negotiator and a very creative mediator, as attested by his record of his attempts to mediate the disputes between the International Ladies’ Garment Workers Union and management. Paper, 135–45. Yet brandeis was a litigator and, if necessary, he tried the case and usually won. However, he did not always trust the judicial institution to work well. Common law was too slow and he did not feel that it fared well when dealing with consumer-and worker-protection issues. Legislative enactments, he believed, were more efficient for insuring consumer and workers’ rights, and for imposing corporate social responsibilities. see notes 37–44, and accompanying text.
- Paper, 27. He had taught the course on Evidence at Harvard and that went well. Ibid., 26–27. He also taught business Law at MIT. Ibid., 38.
- Urofsky, 80. In 1881, two years into the boston practice, Warren and brandeis hired their first associate and then in 1884 their second. The pair was successful and the firm grew in numbers and reputation. Paper, 20–30. Brandeis made his first argument before the U.s. supreme Court in 1889. This occurred only because the attorney who was scheduled to argue the case did not appear on time, and Brandeis, the junior associate, was “on deck.” baker, 12. Brandeis was gaining experience and he was comfortable with complex litigation and with appearances before juries. He possessed an uncanny ability to immerse himself in the facts of a case, and to cross-examine witnesses unceasingly, always making sure that the record was complete. Ibid., 48–49.
- In fact, this approach to lawyer-client relations created a problem for Brandeis in his confirmation hearings. seven past presidents and fifty-seven lawyers and citizens signed a petition opposing his senate confirmation. Robert A. burt, Two Jewish Justices: Outcasts in the Promised Land. berkeley, California: University of California Press, 1988, 9. The leader of the opposition in the senate said: “Mr Brandeis does not act according to the canons of the bar . . . [he] always acts the part of a judge toward his clients, instead of being his client’s lawyer, which is against the practices of the bar.” A.T. Mason, Brandeis: A Free Man’s Life. new York: Viking, 1946, 506; see also Urofsky, 437–58 for opposition to the nomination and appointment.
- See notes 85–92, and accompanying text.
- Burt, 13.
- Mason, 105–06.
- Burt, 34.
- Urofsky, 300–26.
- Paper, 38–39.
- Ibid., 39.
- Ibid., 39–40.
- Ibid., 41, 175.
- Ibid, 39–41.
- Ibid., 55–64. He took on the powerful combination that sought to monopolize the transit system in boston, by long term leases, independent rate-making, and exemption from payments to the city.
- Ibid., 146–159.
- Ibid. 65–68. Although recognizing the merit of unions, he also felt that they should be responsible for wrong-doing, and in fact, debated samuel Gompers on that very issue.
- For example, he agreed to undertake representation of a committee of life insurance policy- holders only on condition that he would not be paid. Ibid., 82. This led to a successful fight for the pas- sage of legislation in the Massachusetts state legislature that created the opportunity for savings bank life insurance. now savings banks were able to offer plans for pensions, and death insurance, that would compete with the conventional life insurance companies. Ibid., 80–91. brandeis was successful in his fight against the dilution of the value of stock issued by gas utility companies, and the battle for the consumers to hold down the cost of gas. Ibid., 69–79. In these public battles, brandeis knew the value of public support and was a genius at enlisting it. He clearly demonstrated this in his nine-year campaign against the new Haven’s Railroad monopolization and outside control of the b & M, a Massachusetts railroad transportation company. Ibid., 92–111. Moreover, brandeis was relentless when it came to discovery of the facts, as aptly demonstrated in his representation of the “public interest” in a joint congressional hearing involving a matter of ethics in government, which involved the U.s. secretary of the Interior; this matter even reached to the President of the United states. For a good treatment of the ballenger-Pinchot controversy see ibid., 112–34; Urofsky, 254–76.
- Muller v. Oregon, 208 U.s. 412 (1908).
- Paper 161–66.
- The Words of Justice Brandeis , ed., solomon Goldman. new York,: Henry schuman, 1953, 160.
- For an extensive discussion of Zionism and Louis brandeis, see Urofsky, 515–44.
- Psalm 137: 1–6.
- Siddur Tiffereth David, arrang., Hyman segal. new York: Hebrew Publishing Co., 1951, 57.
- Herzl perceived a Jewish problem for which he sought a solution. He lays out the case for his solution in this seminal book. Throughout Europe, Herzl recognized an anti-Jewish sentiment. Wherever they wandered and settled, they were persecuted. “Out with the Jews,” was the Gentile motto. He saw the vicious pattern of anti-semitism, and believed that the Jews had become what the Gentiles forced them to be, caused by restricting them to the ghettos and from certain livelihoods. Herzl eventually recognized that anti-semitism could not be remedied through colonization of a few thousand Jews in one place or another, or through becoming peasants, or even through assimilation. He saw the proximate cause of modern anti-semitism, as emancipation, which freed the Jewish populace to become rivals of the middle class bourgeois.Herzl’s answer to the Jewish problem was political sovereignty on Jewish soil secured by international law. He hoped this would be accomplished through a tandem effort of two great agencies: society of the Jews and The Jewish Company. The first would generate the plan and the second would implement it. The society would negotiate with the nations to secure the land. The Company would liquidate property and businesses and purchase the land. Money would be raised through banks or public subscriptions.
Herzl saw an aristocratic republic form of government, one that is in-between monarchism and democracy. There would not be a common language, but a type of “linguistic federalism.” nor would the republic be theocratic, although religion would have its place in the “temples,” just as the military would have its place in the “barracks.” Ibid.
First, it is note-worthy that Herzl was not motivated by his religion, at least not primarily, or even secondarily. He was motivated by egalitarianism for the Jewish people, a desire to see the completion of emancipation. He saw no other way but through Jewish autonomy. This would, he believed, be the great equalizer, and would rid the planet of anti-semitism. second, although rooted in liberalism, it was not to be accomplished through democratic principles, but through the Roman legal concept of gestor. The gestor acts on behalf of a people who cannot act on its own, because of a disability. For Herzl, it was the society that was to assume the role of gestor, to hold in trust the welfare of the Jewish people and the responsibility of acting prudently. Thirdly, since the book bordered on utopianism, with, for example, seven-hour work days and free housing for workers, Herzl expressly disclaimed it as utopian so that people would take it seriously. Fourthly, he foresaw a type of symbiosis between the departing Jews and the countries from which they were departing. “Jew-riddance” would eliminate anti-semitism. The Jewish society would make sure that the countries would be compensated for their departure, for the loss of businesses and taxes. Gentiles within the states of departure would benefit through succeeding to the businesses that remained, or at least from the absence of competition; and the countries of departure would have another trading partner in the world: a new sovereign state.
Herzl instilled confidence in readers when he said, “The Jews who want a state of their own will have one . . . And whatever we attempt there only for our own welfare will spread and redound mightily and blessedly to the good of all mankind.”
The Jewish state was a process. It first had to exist in the mind of Herzl, and then the vision had to be embraced by others. Thus, it was a state before it was a state. The book created a picture that needed to be drawn. This was apparently Herzl’s motive—for people to rally around the idea so that it would become a reality. Theodor Herzl, The Jewish State, trans., Harry Zohn. new York: Herzl Press, 1970.
- Paper, 202.
- Burt, 117–19.
- “You cannot possibly conceive of the horrible sufferings of the Jews in Poland and adjacent countries.” Leonard baker, Brandeis and Frankfurter: A Dual Biography. new York: Harper and Row, 1984, 73.
- Ibid., 73–74.
- Paper, 19.
- Benjamin nathan, Beyond the Pale: The Jewish Encounter with Late Imperial Russia. Berkeley, California: University of California Press, 2002.
- Alfred Dryfus was falsely accused of spying and was degraded and imprisoned before he was later exonerated. The whole affair was rooted in anti-semitism. Interestingly, it was Theodor Herzl who covered the trial of Dreyfus. Solomon Grayzel, A History of the Jews. Philadelphia: Jewish Publication society, 1968, 644–48; Howard Morley sachar, The Course of Modern Jewish History. new York: Dell, 1958, 230–33.
- Urofsky, 439–40, 442.
- Ibid., 479.
- Baker, 74–75.
- Paper, 205.
- See generally, Yoram Hazony, The Jewish State: The Struggle for Israel’s Soul. new York: basic books, 2000.
- Paper, 202–03.
- Urofsky, 523–27.
- Paper, 204–05, 259–64. Brandeis was the key draftsman of the Pittsburgh Platform. Urofsky, 527.
- Urofsky, 520.
- Paper, 268.
- Ibid., 318.
- Ibid., 268–71, 387.
- Ibid., 273–74.
- Membership had declined from a high of 176,000 in 1919 to less than 25,000, and finances were severely down. Ibid., 317.
- Ibid., 319.
- Raymond P. scheindlin, A Short History of the Jewish People: From Legendary Times to Modern Statehood. Oxford, Eng.: Oxford University Press, 1998, 228–29. For the riots of 1920–21 in the Land, see A History of the Jewish People, ed., H.H. ben-sasson. Cambridge, MA: Harvard University Press, 1976, 997-98 [hereafter referred to as A History of the Jewish People].
- Paper, 320, 389. The problem was that Great britain had been promising one thing to the Jews and another to the Arabs, and these two promises built up irreconcilable expectations. Ibid., 386–87.
- Ibid., 268.
- Some urged brandeis to take the helm of the World Zionist Organization. Had he agreed, he probably would have had the support to succeed. However, it would have required him to step down from his position on the court. He thought long and hard and finally refused. Urofsky, 535–36.
- Paper, 78–80.
- While brandeis sat on the High Court, he was the target of McReynolds’s virulent anti-semi- tism. Urofsky, 479, 749.
- Joseph Lamar, a Taft appointee, died January, 1916. Urofsky, 430.
- Baker, 101.
- Paper, 212–13.
- Taft voiced his opinion that the leading Jews of notable cities, “who do not tend toward socialism,” would be troubled and indignant over the nomination. baker, 100. He also charged that Brandeis manipulated American Jewry in order to get a presidential appointment, by becoming a prominent, insincere Zionist. Ibid. In reality, even those Jews who were not so happy with Wilson’s choice of this Jewish appointee, because brandeis had no upbringing in the Jewish religion and did not practice it, nonetheless ultimately came to Brandeis’s support. Ibid., 101.
- Brandeis’s law partner, Edward McClennen, listed anti-semitism as the top reason for the opposition to Brandeis, particularly among the southern Democrats. Ibid., 102.
- Paper, 213.
- Baker, 101.
- Urofsky, 445.
- See for example the restrictions on Russian Jewry in nathan, 257–307. see also A History of the Jewish People, 956.
- Paper, 215–37.
- Ibid., 230.
- Ibid., 233.
- Ibid., 234.
- Ibid., 238.
- Ibid., 239.
- He employed law clerks to help him toward that end. He encouraged his law clerks to speak up when they disagreed with him. He would weigh their perspective, and occasionally a clerk’s argument persuaded him to change his position. He expected his clerks to work hard and be accurate. For that, however, they rarely got any accolades from the Justice. They only heard from him when they had disappointed him in some way. baker, 193–94; Paper, 244–46, 396.
- Paper, 255–56. In fact, brandeis was the first justice to cite law review articles in the High Court’s opinions, The Jewish Justices of the Supreme Court Revisited: Brandeis to Fortas, ed., Jennifer M. Lowe. Washington, D.C.: The supreme Court Historical society, 1994,18, and at times he cited some that were penned by Harvard law students. brandeis sought to teach, not just his brethren on the court, but the broader base of people who would read the opinions. Ibid., 17.
- 249 U.s. 47 (1919).
- Justice Oliver Wendall Holmes wrote the opinion:
The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right. 249 U.s. 52.
This test has been nuanced over the years and the standard applied today in brandenburg v. Ohio, 395 U.s. 444 (1969) in determining “clear and present” danger is the “imminent lawless action test.”
- Baker, 246.
- 251 U.s. 466 (1920).
- 251 U.s. 483.
- 252 U.s. 239 (1920).
- 254 U.s. 325 (1920).
- 254 U.s. 343.
- 274 U.s. 357 (1927).
- 274 U.s. 375.
- 274 U.s. 376.
- 274 U.s. 377.
- 277 U. s. 438 (1927).
- 277 U.s. 485.
- Katz v. United state, 389 U.s. 347 (1967).
- Griswold v. Connecticut, 381 U.s. 479 (1967).
- Roe v. Wade, 410 U.s. 113 (1973).
- Cruzan v. Missouri Department of Health, 497 U.s. 261 (1990).
- The Jewish Justices of the Supreme Court Revisited, 30–31.
- Gershom scholem, Sabbatai Sevi. Princeton, n.J.: Princeton University Press, 1973, 88–93.
- Ibid., 148–49.
- Ibid., 207–23, 843.
- In order for God to create the world, he had to contract or exhale, to make room for it (tzim som). This led to chaos, which continues, awaiting the Messiah to repair the broken world, known as tikkun olam. Joseph Dan, Kabbalah. Oxford, Eng.: Oxford University Press, 2006, 73–83.
- For a comprehensive treatment of the life of shabbetai Zvi, see Gershom scholem, Sabbatai Sevi.
- Harris Lenowitz, The Jewish Messiahs: From the Galilee to Crown Heights. Oxford, Eng.: Oxford University Press, 1998, 149–65.
- Ibid., 170.
- According to Lurianic kabbalah there are ten emanations of God (sefirot): Crown, Understanding, Wisdom, Justice, Mercy, beauty, Majesty, Victory, Foundation and Divine Presence. Back to the Sources: Reading the Classic Jewish Texts, ed., barry W. Holtz. new York: simon & schuster, 1992, 319–25.
- Lenowitz, 189–91; Gershom scholem, The Messianic Idea in Judaism: And other Essays on Jewish Spirituality. New York: schocken books, 1971, 126–41 [hereafter referred to as The Messianic Idea in Judaism].
- Lenowitz, 195–97.
- The Messianic Idea in Judaism, 167.
- Both Louis’s mother’s and father’s families “belonged to a minor and despised sect, followers of the eighteenth-century pseudo-messiah Jacob Frank.” Urofsky, 4. Frederika, Brandeis’s mother’s family in Europe “had been caught up in a Jewish messianic movement known as shabbateanism . . . ” Baker, 21; see also, Urofsky, 4. However, Frederika, though influenced to an extent, did not embrace the movement in an orthodox way. Ibid. In fact, she was reactionary, refusing to bring up her children with a definite religious belief. Baker, 22.
- The Jewish Justices of the Supreme Court Revisited, 12.
- His mother, Frederika, as a little girl was beguiled by the Christmas festivities. baker, 22; Urofsky, 18. And, Louis and his wife, Alice, celebrated Christmas with a tree, and toys for the children. Urofsky, 366.
- Urofsky, xi, 114, 407–08, 542.
- The Messianic Idea in Judaism, 167–75.
- Ibid., 168.
- Burt, 121.
- Marsha Rozenblit, Reonstructing a National Identity: The Jews of Habsburg Austria During World War I. Oxford, Eng.: Oxford University Press, 2001.
- Lenowitz, 175, figure 8.1.
- The Messianic Idea in Judaism, 170.
- Urofsky, 105–06; The Messianic Idea in Judaism, 167–71.
- Burt, 9.
- Ibid., 124–29. Burt likens him to Moses, who was Jewish, but who did not grow up in a Jewish home. He vicariously identified with the sufferings of enslavement, yet he was free, and this gave him the capacity to deliver them from bondage. Ibid., 124–25.
- Ibid., 119–23.
- 277 U.s. 478.
- Interestingly, many of the Frankists pursued law as a career. Lenowitz, 175, fig. 8:1.