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Louis D. Brandeis: A Life, by Melvin I. Urofsky.  New York: Pantheon Books, 2009.  953 pp.  $40.00.

 

Psychoanalysts would call this magisterial and compelling biography “over-determined.” Its author has already co-edited (with David W. Levy) a five-volume edition of the Letters of Louis D. Brandeis. In A Mind of One Piece (1971), Melvin I. Urofsky explored important facets of the jurist’s career as a reformer and his effort to reconcile Zionism with progressivism. A decade later came a crisp and lucid contribution to the Library of American Biography series, Louis D. Brandeis and the Progressive Tradition. Each of its chapters, Urofsky once told this reviewer, had been written on a weekend; after ten weekends, the book was done. Such fluency testifies to mastery of the subject and to a flair for writing at Mach 2 speed. He is also the author of the standard two-volume history of American Zionism (1975, 1978), and has published extensively—both books and articles—on American Constitutional and legal history and issues. No scholar has therefore been more prodigiously prepared to write a definitive biography of “the people’s attorney” and Zionist tribune who became one of the most brilliant and influential justices ever to serve on the U.S. Supreme Court. No scholar has ever been more knowledgeable about Brandeis than Urofsky, whose book is modestly subtitled A Life. Yet this volume is about as close to meriting classification as The Life as can be imagined.

His subject is a worthy one. The distinction of Brandeis’s mind and character was certainly appreciated in his own lifetime. His first major biographer, Alpheus Thomas Mason, had the advantage of conducting interviews with the retired Justice. Before Brandeis: A Free Man’s Life (1946) appeared, Mason had already published two books about him, in the previous decade. No disparagement of other biographical studies—for example, by Philippa Strum and Lewis Paper—is intended in insisting upon the primacy, the comprehensive authority of Urofsky’s new book.

Mason’s was especially thin on Brandeis’s Zionist allegiances and activities, now long since corrected. No historical figure who contributed so decisively to the collective interests of his people was so dubiously a Jew as was Brandeis (with the possible exception of Herzl). Brandishing no known religious convictions, Brandeis certainly never practiced Judaism. No one ever observed ethnic feelings bubbling to the surface, either; no one was ever struck by Brandeis’s yiddishkeit. Neither his parents nor his wife nor his brother felt the allure of Zionism; and his famous brother-in-law, Felix Adler, founded Ethical Culture, and thus sought to dissolve the claims of Jewish history itself.

Urofsky lays out the full case for Brandeis’s likely motivations in committing himself to Zionism, and emphasizes how devoted he was to meeting the financial, organizational, technical, and practical challenges of settling the Holy Land, where the curse of bigness afflicting his own country could be dispelled. To the impalpable appeal of restoration, to the messianic longings that enabled the chalutzim to drain the malarial swamps and battle Arab marauders and make alabaster cities gleam in the desert, Brandeis was indifferent. He was also the rare progressive who showed no interest in the Soviet experiment, and once wondered: “Why visit Russia when you can go to Denmark?” (p. 721). Then why champion the yishuv? Brandeis’s involvement in Palestine remains elusive; the mystery defeats even his most energetic biographer.

Among the special strengths of his book is the treatment of Brandeis’s Supreme Court career. In 1916 seven past presidents of the American Bar Association had opposed his Senatorial confirmation, charging that the nominee was temperamentally unfit for the bench because of the passions he had invested in the civic causes that had made him famous. Such warnings were not only ignored; they were mistaken. Urofsky shows how consistently Brandeis deferred to the judgment of the Congress and of state legislatures, even when he questioned their wisdom. Of course he got along famously with his patrician ally in dissent, Oliver Wendell Holmes, Jr. But Justice Holmes took for granted that folly governed human affairs, and couldn’t care less whether legislators adopted pernicious policies. Brandeis by contrast had informed and forthright opinions on many economic issues, and yet still acknowledged the right of elected officials to trump his own considered judgment of what best served the republic.

The opinions that he issued from the bench, which Urofsky lucidly summarizes, were often hammered out in the give-and-take of prior discussions with the brethren. This book shows how deftly Brandeis, despite the ardor of his liberalism, managed to get along even with the conservatives, who dominated the Court until nearly the end of the 1930s. Chief Justice William Howard Taft believed that Brandeis (“the lawless member of the Court”) was slyly manipulating the elderly Holmes into undermining the very foundations of order, and called both of these dissenters “Bolsheviki” (p. 631). Yet Brandeis respected Taft and managed to establish a modus vivendi with almost all of the conservatives who detested what the former “people’s attorney” represented. The only justice who remained impervious to Brandeis’s interpersonal skills was James C. McReynolds. An unabashed antisemite, McReynolds refused even to be seated next to Brandeis for an official photo in 1924; therefore no such photo exists for that year. Fifteen years later McReynolds was the lone holdout when colleagues composed a farewell letter upon Brandeis’s retirement from the Court. A special pleasure to be derived from this biography is its account of how the anti-New Deal ideology of McReynolds and other conservatives was defeated, while Brandeis’s sensitivity to civil liberties and to the value of governmental intervention in behalf of the beleaguered (such as organized labor) gained momentum.

How this jurisprudential triumph was achieved is illuminated in Urofsky’s book. No American who was a great attorney was a greater Supreme Court Justice than Brandeis, nor was any American who was a great Justice a greater lawyer either. Those two careers made Brandeis unique. It is also possible to infer from this biography that a conservative mien masked an unusually innovative and creative mind. On the surface he had all the rigidity and formality that have made the yeke so amusingly exasperating. The austere “parties” at his household ended promptly at 10 p. m. (and then, as he was manifestly aging, at 9 p. m.). The correspondence that has been preserved reveals almost nothing of the inner life. A photo on page 665 shows Brandeis seated in a canoe at Cape Cod; he is impeccably dressed in a suit with a vest and a tie.

And yet no one matched him in the ingenuity and freshness with which he devised constructive responses to the problems that an industrialized economy and an urban society were generating. The 1890 Harvard Law Review article that he co-authored, enunciating a right of privacy, is simply the most famous law review article ever published. He later became the first member of the Supreme Court to cite a law review to buttress an opinion, and a draft of Olmstead v. U. S. even mentioned the relevance of television—in 1928! Two decades earlier his presentation of statistical evidence, in Muller v. Oregon, to show the legislative need to spare laundresses from overwork became the “Brandeis brief.” It invented the methodology that helped invalidate racial segregation in public schools in Brown v. Board of Education (1954). Post-Emancipation Jewry bears the face of Janus: an ancient people has adapted quite adroitly to modernization, whether in the Diaspora or in the Altneuland in the Near East. The subject of Urofsky’s marvelous biography thus fits quite snugly into Jewish history itself.

 

Stephen J. Whitfield

Brandeis University