Review of Jeffrey Rosen's " Louis D. Brandeis: American Prophet"

tags: book review, Jeffrey Rosen, Louis D. Brandeis

Henry D. Fetter is an independent historian and lawyer whose writings have appeared in the Public Interest, Wall Street Journal and the Times Literary Supplement.

Louis D. Brandeis: American Prophet by Jeffrey Rosen appears in the “Jewish Lives” series published by Yale University Press -- and such a series would not be complete if it omitted the first Jewish justice of the United States Supreme Court, the man who Franklin D. Roosevelt referred to as “Isaiah” and who might well be described as American Jewry’s secular saint -- but it is not a “life “ of Brandeis. That is inevitable given the limited space available to Jeffrey Rosen and the multifaceted life of his subject as brilliant Harvard law student, highly paid Boston corporate lawyer turned nationally renowned “People’s Attorney”  playing a prominent role in many of the crusades and conflicts of the Progressive Era,  prolific and influential author, advocate who revolutionized the practice of constitutional law with his fact-laden “Brandeis Briefs,”  key adviser to President Woodrow Wilson in shaping the agenda of the New Freedom,  American Zionist leader, subject of a prolonged and unprecedented confirmation battle over his nomination to the Supreme Court in 1916 and long-serving (from 1916-1939) Justice of the Supreme Court who is invariably placed on lists of the all-time greatest members of that Court.  That Rosen does not resolve some of the conundrums of Brandeis’s career  -- his acceptance by Brahmin dominated Harvard and Boston despite his Jewish identity (perhaps facilitated by an appearance a classmate described as “tall, well made with the brightest eyes I ever saw”), the reasons for his embrace of social reform, the extent to which the opposition to his Supreme Court nomination was due to anti-Semitism, his Zionist activism despite an entirely non-religious upbringing and way of life  -- cannot be held against him since even the most compendious biographies have been unable to provide definitive answers on such matters.

But that it is not a conventional biography is also by design.  Jeffrey Rosen  is professor of law at Georgetown University and President and CEO of the National Constitution Center. Although he recaps the highlights of Brandeis’s extraordinary career and his most important judicial opinions (devoting, in particular, substantial space to Brandeis’s Zionist activities as befits its inclusion in the series) he writes that “this short book is designed to introduce readers to what Brandeis thought and why he matters today… It is not intended to be a comprehensive biography….. Instead I  have drawn on what Brandeis wrote and what he read to offer a condensed study of his thought and character.” In particular, Rosen writes that  “Louis Brandeis was the most important American critic of what he called ‘the curse of bigness’ in government and business since Thomas Jefferson…. I argue that Brandeis, who was content to be called a Jeffersonian, is the Jeffersonian who has most to teach us about our contemporary vexations involving political economy, civil liberties and Zionism -- the Jewish Jefferson!  But it was a particular vision of Jefferson -- the sage of Monticello as the scourge of corporations, monopolies, and financiers, the defender of farmers and producers -- who most inspired the mature Brandeis.”  It is entirely consistent, therefore, with Rosen’ stated intentions that the book allocates almost as much space to a discussion of a biography of Thomas Jefferson by Arthur Jay Nock  that impressed Brandeis as to the contentious confirmation battle over his Supreme Court appointment.

Rosen pursues the Jefferson theme in his discussions of Brandeis’s economic philosophy with its emphasis on protecting a competitive marketplace of small, decentralized enterprises against the monopolistic practices of large, consolidated corporations, his landmark opinions on freedom of speech which drew inspiration from Jefferson’s opposition to the Alien and Sedition Acts and belief in the crucial role in an educated citizenry in a robust democracy, and even his vision of Palestine as Rosen writes, the realization of “Jeffersonian ideals about democratic  participation and small-scale self-government....Brandeis came to view Palestine as a society that could achieve the kind of small-scale Jeffersonian agrarian democracy...that allowed men and women to develop their faculties of reason and self-government on a human scale.”

A few issues raised by Rosen’s discussion of Brandeis’s approach to economic and political problems should be noted.

Brandeis’s distinction between financial capitalists who deployed “other people’s money” ( the title of his most famous book) for their own self-interest  and productive capitalists whose activities increased general economic wealth and ell-being was, ironically, a staple of anti-Semitic propagandists who attacked Jews as parasitic financiers (Brandeis’s own primary target was J.P. Morgan).  Whether Brandeis took notice of this unsettling parallel is unmentioned. Although Brandeis cautioned against “the curse of bigness” in government as well as business, the role of the states as (in his phrase) self-governing “laboratories of democracy,” was undermined by the expanding scope  of concentrated  federal power made possible by the judicial revolution in constitutional  law that Brandeis supported.  Rosen mentions Brandeis’s frequent advice to his protégés to return to the states if they wanted to have an impact, but such counsel was generally rebuffed:  they generally preferred to remain in Washington where the power, and the action, was.   He recognizes that most modern economists conclude that Brandeis’s ideal of a small-scale, decentralized economy would frustrate market efficiencies and would result in higher prices to consumers, but appears to embrace what he describes as  Brandeis’s  “ ultimate goal promote not efficiency but democracy, to secure not the lowest prices in the short term but the best citizens and communities in the long term.”

At a moment when Hamilton-mania is rampant and  Alexander  Hamilton’s advocacy of a strong national government and an expanding commercial economy may well appear to be more in tune with today’s world than Jefferson’s agrarian, state’s rights oriented social vision, and there is some contrarian courage in Rosen’s linking Brandeis so tightly with Jefferson.  That Jefferson has come under heightened scrutiny as a slaveholder doubtlessly compelled Mr. Rosen to confront a long ignored issue in writing about Brandeis:  his “blind spot on the issue of race.” During his time on the Court Brandeis wrote 455 majority opinions and 65 dissents but none, as Rosen notes, was written in cases concerning racial issues.  Nor, unlike some other prominent progressively minded Jewish lawyers of the time, did Brandeis  support civil rights organizations as a private citizen.

Interestingly,  one of the first cases which came before the Court during Brandeis’s tenure involved a challenge to a residential racial segregation ordinance in Louisville, Kentucky, his own home town in which family members continued to reside. But there appears to be no record of Brandeis expressing a view about that case or its reasoning and he simply joined, without comment, in the unanimous decision invalidating the law on the grounds that it infringed the rights of property owners -- the kind of argument that Brandeis had rejected when deployed to challenge social welfare legislation. Avoiding undue censure, Rosen simply concludes that Brandeis, who was born before the Civil War and grew up in a border state, was “a southern Democrat” who “was no more or less supportive of racial equality than the other progressive justices of his era.”

Rosen makes a spirited case for the continued relevance of Brandeis’s thought amidst contemporary debates over financial wrong-doing, economic concentration, the influence of money in politics, privacy and freedom of expression. Although at times one senses that his take on what Brandeis would think about such  issues tells us more about his own views than his subject’s, Rosen has the grace to acknowledge that “in attempting to channel Brandeis’s thoughts on contemporary constitutional debates … all of us can plausibly reach different conclusions.“

Nevertheless, one closes the book thinking as well about how unlike Brandeis’s era was from our own when it comes to the Supreme Court nomination process. First, whether or not some of the opposition to Brandeis’s appointment was fueled by anti-Semitism (Brandeis himself privately said during the confirmation fight that he was opposed because he was a Jew and a radical) the hearings on his nomination not only did not raise the “Jewish question,” but did not even address his ideological convictions, let alone delve into his extensive “paper trail’ or involvement in hotly contested political and legal controversies.  They focused instead on various  charges of ethical misbehavior and conflicts of interest in his practice of law; even his opponents in the Senate apparently believed that disagreement with a nominee’s judicial philosophy was not an appropriate basis to block a Supreme Court appointment.  (Although the ethics charges raised in the confirmation hearing were not convincing, when he was on the Court, Brandeis engaged in backdoor politicking, presidential advising and undisclosed subsidizing progressive activists  that would not, as Rosen notes,  pass ethical muster today.)

 Louis D. Brandeis would hold an important place in American legal and political history had he not served on the Supreme Court at all, something that cannot be said of any current or recent justice.  Today, no one with the high profile,  politically engaged and robustly controversial record of Brandeis is likely to be nominated for a seat on the Supreme Court.  As Jeffrey  Rosen’s book makes clear, that is our loss.

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