Brandeis: The first Jewish jurist named to the Supreme Court


Exactly 100 years have passed since the first Jewish jurist was named to the Supreme Court.  Until the nomination of Louis Brandeis to the high court by President Woodrow Wilson on Jan. 28, 1916, all nine seats had always been occupied by white, Anglo-Saxon males, almost all of them Protestant. Since then, the Supreme Court has been opened to not only Jews but to jurists of all faiths, colors and genders. Today, three Jewish jurists — Stephen Breyer, Ruth Bader Ginsburg and Elena Kagan — now serve on the Supreme Court, and the very notion of a “Jewish seat” would sound like mere tokenism.

Brandeis is a familiar name, but I fret that it is now more widely associated with Brandeis University — or, locally, the summer camp and cultural institution that bear his name — than with the jurist himself. That’s why this is an appropriate moment to remind ourselves of the stature and achievements of the man who is nowadays remembered by most only as the first Jew to serve on the Supreme Court, if he is recalled at all.

Louis Dembitz Brandeis, child of Jewish immigrants from Bohemia, was born in 1856 in Louisville, Ky. His American success story began with studies at Harvard Law School and the practice of law in Boston, where he co-founded (with Samuel D. Warren) a law firm that remains in existence today under the name of Nutter, McLennen & Fish. Although he assured his fortune through the practice of law, he also devoted himself to championing the progressive causes to which his heart turned, with the result that he earned the moniker of the “People’s Lawyer.”

Brandeis did not merely excel in the legal profession; rather, he changed the law itself and the way that law is practiced. To describe his impact, we invited four distinguished members of the legal community to reflect on some of the many ways Brandeis literally wrote himself into American jurisprudence. Laura W. Brill, a leading appellate lawyer who served as a clerk to Justice Ruth Bader Ginsburg, explains the origin and function of what has come to be called a “Brandeis Brief.” Erwin Chemerinsky, dean of the UC Irvine Law School, explains how Brandeis championed the “freedom to think as you will and to speak as you think” as the essence of “political truth.”

But the influence of Louis Brandeis reaches far beyond the chambers of the Supreme Court and has endured long after his death in 1941. David Nimmer, author of the benchmark treatise “Nimmer on Copyright,” explains how the right of privacy, an idea Brandeis first proposed while still in private practice, casts a long shadow on the information-gathering activities of the U.S. government that have come to light in recent years after revelations by Edward Snowden, a one-time government contractor. And Bruce Ramer, among our most prominent entertainment attorneys, explains how Brandeis embraced progressive values while, at the same time, raising “smallness” in both government and business to a guiding principle.

For my own part, I am proud to salute Brandeis for the role he played in the Zionist movement, a story that is now mostly eclipsed by the subsequent events of history. Significantly, Brandeis was born to the generation of Jewish immigrants who arrived from the German-speaking lands of Central Europe in the mid-19th century, but he felt compassion for those Jews who later fled Russia and Eastern Europe. His daughter described Brandeis as “a completely nonreligious, a nonobservant Jew,” and his biographers find no evidence that he was a victim of anti-Semitism, yet Brandeis decided in 1910 to join with (and came to lead) those of his fellow Jews who aspired to create a Jewish homeland in Palestine.

“He did not believe in the mass salvation of ‘isms,’ ” Melvin I. Urofsky writes in his 2009 biography, “Louis D. Brandeis, A Life” (Pantheon Books). “[T]he world would be made better one person at a time.” Yet Zionism was, for Brandeis, the great exception. At a time when American Jews, fearful of the accusation of “dual loyalties,” were mostly skeptical, if not openly hostile, toward Zionism, the highly assimilated Brandeis assumed the leadership of the Zionist movement, even though it meant “absorbing fact after fact about Zionist and Jewish life in America, occasionally asking a question or repeating a strange-sounding Hebrew or Yiddish name.”

Brandeis insisted that he “came to Zionism through Americanism,” and Urofsky helps us to understand that the kind of Zionism that appealed to Brandeis carried a distinctly American brand. “Unlike those Zionists who wanted to create a nation governed by Jewish religious law, Brandeis envisioned a secular society populated by Jews who lived according to American values that Brandeis conflated with those of the prophets.” By 1916, when Wilson nominated Brandeis for a seat on the Supreme Court, Wilson articulated an idea that has become an enduring article of faith in American politics, now more than ever. “In the opinion of the president,” Brandeis wrote, “there is no conflict between Zionism and loyalty to America.”

As Urofsky points out, Brandeis was born shortly before the shelling of Fort Sumter and died shortly before the bombing of Pearl Harbor, two events that fundamentally changed the world that he knew. Brandeis himself, during his active and consequential life, succeeded in imprinting his own vision and values on the American civilization. In that sense, we continue to live the American democracy that he helped to create. 

Jonathan Kirsch, author and publishing attorney, is the book editor of the Jewish Journal

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