Brandeis Becomes the First Jewish Supreme Court Justice

Date June 5, 1916

President Woodrow Wilson’s nomination of Louis D. Brandeis to the Supreme Court broke the corporate lawyers’ attack on Jewish lawyers and legitimated new approaches to the law.

Locale Washington, D.C.

Key Figures

• Louis D. Brandeis (1856-1941), American attorney and associate justice of the United States, 1916-1939
• Woodrow Wilson (1856-1924), president of the United States, 1913-1921
• William Howard Taft (1857-1930), president of the United States, 1909-1913, and chief justice of the United States, 1921-1930
• A. Lawrence Lowell (1856-1943), president of Harvard University
• Thomas J. Walsh (1859-1933), U.S. senator from Montana
• Henry Cabot Lodge (1850-1924), U.S. senator from Massachusetts
• Robert M. La Follette (1855-1925), U.S. senator from Wisconsin
• Charles William Eliot (1834-1926), president emeritus of Harvard University

Summary of Event

On January 28, 1916, President Woodrow Wilson nominated Louis D. Brandeis to the Supreme Court of the United States. Prior to the nomination, Wilson conferred privately only with Senator Robert M. La Follette, 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 more than four months, the longest period in the history of Supreme Court nominations, the Senate Judiciary Committee heard heated and complicated testimony. The committee’s final report of 1,316 pages revealed that the issues involved radical threats to the American legal system. Brandeis’s confirmation on June 1 and appointment on June 5 signaled reform in American economic, political, and social systems. The appointment broke a taboo that kept Jews from serving on the Supreme Court and in 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 come to the United States from Austria after the 1848 Prussian Revolution. After finishing high school, Brandeis traveled in Germany for three years. In 1875, he entered Harvard Law School, from which he graduated with highest honors.

In 1879, Brandeis established a law practice in Boston that grew into a profitable business. He also became known as “the people’s lawyer” because of his pro bono advocacy in the public interest, such as in cases involving municipal railway monopolization, life insurance practices, conservation of public lands, and laws setting maximum hours of work for women and children. He joined with the Progressive movement in its attack on overly large corporations and the exploitation of the working class and the consumer. In Brandeis’s view, the sacred concept of “protection of property” had to be balanced with concepts of equity and social justice. He promoted a view of government as an active regulator of industry and a force for economic and social opportunity, and he became a close adviser to La Follette and Wilson.

Brandeis became famous for reforming legal arguments when he argued before the U.S. Supreme Court in the 1908 case of Muller v. Oregon. The state of Oregon was challenged for its statute restricting female workers to ten hours of labor per day. The employer, Muller, argued that the Fourteenth Amendment to the U.S. Constitution protected his “life, liberty and property.” Without using any constitutional precedents, Brandeis amassed more than one hundred pages of sociological and economic data to prove that excessive hours of toil were a threat to a woman’s constitution. Brandeis won his case. Subsequently, he used similar arguments against 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.”

Reared as a nonreligious German Jew in Kentucky and Boston, Brandeis did not directly feel the virulent anti-Semitism that arose in the United States in the early twentieth century. A massive riot and a lynching demonstrated the violent aspect of this prejudice against Russian and Polish Orthodox Jews. Hundreds of Jews were injured when the largest anti-Semitic police riot in American history erupted on New York City’s lower East Side in July, 1902. In Atlanta, Georgia, Leo Frank, a Jewish businessman who had been wrongly convicted of murdering a young girl, was dragged from his jail cell by an anti-Semitic mob and lynched in August, 1915, just six months before Brandeis’s Supreme Court nomination.

The anti-Semitism evident at Brandeis’s Senate hearings was subtle. Neither the Boston Brahmins nor the Wall Street lawyers openly admitted their prejudice, but many saw Brandeis’s nomination as a slap in the face of the conservative Anglo-Saxon male elite who ruled American corporations, law firms, and government offices. Brandeis was an outsider who denied the legitimacy of the legal system that supported unfettered capitalism. Given that Brandeis’s intellect, knowledge of the law, and judicial accomplishments were unimpeachable, the Senate hearings focused on the nature of his character.

The attack on Brandeis’s nomination was led by the Boston and Wall Street legal elite: Henry Cabot Lodge, Republican senator from Massachusetts; A. Lawrence Lowell, a corporate lawyer, former president of the American Bar Association, and the president of Harvard University; and former U.S. president William Howard Taft. Lodge questioned Brandeis’s fitness to serve, stating: “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.”

Opponents of the nomination made the vague charge that Brandeis lacked the “judicial temperament and capacity” to be a proper judge and asserted that he did not have “the confidence of the people.” When repeatedly asked by friends and colleagues to give details as to why Brandeis was personally unfit to be a judge, neither Lodge nor Lowell offered any. Taft believed that Brandeis and other Jewish lawyers would interpret the Constitution to uphold anticorporate social and economic reforms. Throughout the four months of debate, it became clear to many that the charges against Brandeis were spurious and were coming from a particular group of men in Boston and on Wall Street. In fact, this group had hired a lobbyist, Austen Fox, to stall the proceedings.

Senator Thomas J. Walsh, a Democrat, was Brandeis’s leading defender on the Senate Judiciary Committee. He recognized that the attacks stemmed from Brandeis’s religion and radicalness, and he stated: “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.” In a surge of support, Charles William Eliot, president emeritus of Harvard University, rallied to Brandeis’s defense. Eliot praised Brandeis’s “gentleness, courage . . . altruism and public spirit.”

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 U.S. 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’s membership application, saying that he did not “belong.” Only Wilson’s direct intervention broke the religious ban, and Brandeis was allowed entry. Wilson avoided a religious defense of Brandeis’s appointment, arguing only that it was necessary to promote the social, economic, and political values of his “New Freedom” and of Progressivism. Rallying the country to his platform through the Brandeis appointment may, indeed, have given Wilson the edge in winning the presidential race of 1916.

Brandeis remained publicly quiet during the months of hearings. He wrote to his brother that “eighteen centuries of Jewish persecution must have enured me to [these] hardships.” After his confirmation, he privately analyzed the campaign against him. He blamed large corporations for being morally “abnormal and lawless” and blamed “men like A. Lawrence Lowell who had been blinded by privilege.” He held special scorn for those who had abstained from comment.

As a member of the Supreme Court, Justice Brandeis became famous for his advocacy of social justice. For Jews, he was a hero, and he was a voice of commitment to Jewish and Western values until he retired from the Court in 1939.

Significance

The appointment of Louis Brandeis to the Supreme Court did not end anti-Semitism in the United States. In fact, it made Brandeis acutely aware of his Judaic background. Many conservatives viewed the Supreme Court as a bastion of tradition and order. In 1916, the Court consisted of eight Christian judges, all native-born, seven of whom were of Anglo-Saxon heritage. Brandeis was an outsider—a Jew and a radical who sought to change the law. The Court itself harbored a renowned anti-Semite, Associate Justice James C. McReynolds. After Brandeis’s appointment, McReynolds refused to speak to him for three years and would not sit next to him for an annual Supreme Court photograph. McReynolds staunchly opposed the nomination of any more Jews to the Court and even refused to accept a Jewish law clerk.

Brandeis’s professional success helped to encourage other Jews to seek careers in law and education. The politics of Progressivism tolerated these aspirations. During the early twentieth century, Jews in the United States possessed an intellectual tradition that made them good allies with social and economic reformers. Brandeis mentored many able lawyers by offering them positions as his law clerks. He generously endowed many Jewish and educational charities, thus giving many scholars opportunities to become successful.

The Jewish challenge to the professions created a backlash. Throughout the college and university systems of the United States, quotas were instituted to limit the numbers of Jews who could gain the education necessary to join the white-collar professions of law, medicine, academia, and science. For example, in the 1920’s, A. Lawrence Lowell, still president of Harvard, announced that he would limit Jewish admissions to the university by no longer selecting the freshman class on the basis of scholarship alone. The admissions policy would instead be based on an applicant’s “character and fitness and the promise of the greatest usefulness in the future as a result of a Harvard education.” Consequently, Harvard reduced its Jewish enrollment from 25 percent to less than 15 percent.

Brandeis’s 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 endorsed the establishment of a homeland for Jews. His ascension to the Supreme Court highlighted and furthered the contribution of Jews to American government and society.

Bibliography

Abraham, Henry J. Justices and Presidents: A Political History of Appointments to the Supreme Court. 3d ed. New York: Oxford University Press, 1991. Includes analyses of the relationship between Wilson and Brandeis and of William Howard Taft’s opposition to the appointments of Brandeis and Benjamin N. Cardozo. Appendixes rank Supreme Court justices in terms of importance.

Auerbach, Jerold S. Rabbis and Lawyers: The Journey from Torah 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 U.S. Constitution. His creativity derived from his being an outsider to both traditions. An excellent discussion of Brandeis’s Zionist views in terms of his commitment to American values.

‗‗‗‗‗‗‗. Unequal Justice: Lawyers and Social Change in Modern America. New York: Oxford University Press, 1976. A history of the American Bar Association’s early twentieth century struggle to restrict blacks from membership and to prevent Jews from obtaining 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. Concludes that Brandeis’s Jewish experience provided him with a sense of mission to save the outcast.

Gerber, David A., ed. Anti-Semitism in American History. Urbana: University of Illinois, 1986. Provides excellent background reading on the anti-Semitism of the nineteenth and twentieth centuries.

McWilliams, Carey. A Mask for Privilege: Anti-Semitism in America. 1948. Reprint. Westport, Conn.: Greenwood Press, 1979. The classic study on the nature of anti-Semitism in the United States. A stinging attack on how privileged groups used anti-Semitism to protect “their attempted monopoly of social, economic, and political power.”

Mason, Alpheus T. Brandeis: A Free Man’s Life. New York: Viking Press, 1946. One of the best biographies of Brandeis. Excellent on Brandeis’s legal cases as well as his nomination, but does not deal adequately with his Jewishness and Zionism. Based on voluminous primary sources.

Strum, Philippa, ed. Brandeis on Democracy. Lawrence: University Press of Kansas, 1995. Collection of Brandeis’s writings—speeches, personal correspondence, newspaper articles, judicial opinions, and more—shows his views on a wide range of issues, including the problems associated with corporate power, the importance of education, and the need for society to address poverty and inequality.

Todd, A. L. Justice on Trial: The Case of Louis D. Brandeis. New York: McGraw-Hill, 1964. A well-documented record of the Senate Judiciary Committee hearings on the Brandeis nomination. Concentrates more on the political nature of the struggle than on the anti-Semitism. Provides thorough background on the personalities and the arguments.