Brad Snyder, a University of Wisconsin law professor, is the author of the “The House of Truth: A Washington Political Salon and the Foundations of American Liberalism,” which will be published in Feb. 2017.
In his eloquent, insightful and compact intellectual biography “Louis D. Brandeis,” Jeffrey Rosen calls the former Supreme Court justice “the Jewish Jefferson.” Brandeis, he argues, is “the Jeffersonian who has most to teach us about our contemporary vexations involving political economy, civil liberties, and Zionism.”
Like Jefferson, Brandeis decried the “curse of bigness.” As a lawyer and a justice, he attacked massive trusts led by J.P. Morgan and others that he believed destroyed competition from small businesses and farmers. He also favored state and local government over large-scale federal intervention. Rosen argues that “Brandeis’s opposition to the curse of bigness made him one of the greatest constitutional philosophers of the twentieth century.”
But also like Jefferson, Brandeis’s modern resonance is limited by his poor record on race.
Rosen spends several pages acknowledging Brandeis’s “blind spot” on the issue, cites relevant scholarship and repeats one scholar’s judgment that as a justice, Brandeis settled into “an extended period of racial ambivalence.’’
But Brandeis’s record on race was worse than that (though not as bad as Jefferson’s) and undermines Rosen’s claim that the Louisville-born justice was one of the 20th century’s greatest constitutional philosophers.
Though Brandeis was known as “the People’s Lawyer” for taking cases in the public interest, he discouraged two members of the NAACP from seeking his advice about petitioning the Interstate Commerce Commission to investigate the issue of segregated passenger trains traveling across state lines.
Brandeis was a Southern Democrat who was nominated to the Supreme Court in 1916 by a Southern Democrat (the Virginia-born Woodrow Wilson) and who was confirmed, after waiting 117 days for a Judiciary Committee vote, because of the party loyalty of the Senate’s Southern Democrats.
On race, Brandeis was not, as other scholars have suggested, simply a man of his time. Other Supreme Court justices had more enlightened views. Before Brandeis joined the court, John Marshall Harlan wrote two landmark dissents about racial segregation and discrimination; Justice Charles Evans Hughes wrote a majority opinion about the evils of Alabama’s peonage system. After Brandeis left the court, Felix Frankfurter, Robert Jackson and John M. Harlan II practiced judicial restraint yet protected racial minorities.
Even Brandeis’s closest colleague on the court — Justice Oliver Wendell Holmes Jr. — evolved on race. After the 1919 “red summer” of racial violence and the “red scare” that resulted in the prosecution and deportation of radical immigrants, Holmes wrote several groundbreaking decisions involving race. His 1923 opinion outlawing mob-dominated criminal trials helped save the lives of black sharecroppers imprisoned or sentenced to death after the 1919 Elaine Riots in Phillips County, Ark. In 1927, Holmes wrote a unanimous opinion striking down Texas’s all-white Democratic primary. That summer, he stayed the executions of two black Kentucky men sentenced to death for raping a white woman in sham trials with all-white juries.
Though both Holmes and Brandeis changed their minds in 1919 on free speech, Brandeis had no similar epiphany on race. He never wrote a single opinion on the issue. He was conspicuously silent in joining a 1926 opinion upholding racially restrictive covenants, Holmes’s cruel 1927 opinion validating Virginia’s compulsory sterilization law (which Brandeis later cited with approval) and a 1927 opinion permitting Mississippi’s racially segregated schools.
As Rosen observes, even when urging the president of Howard University to hire a full-time law faculty and to start a day program, Brandeis employed a “tone of intellectual condescension.” The justice claimed that he could always tell when a black lawyer had written a brief. In contrast, Holmes praised the performances of two black lawyers at oral argument.
It is hard to know exactly what Brandeis thought about race. Though his judicial philosophy has a strong moral undertone, there is little record of his intimate thoughts and feelings in his numerous letters or in the excellent full-length biographies of his life. As his admiring former law clerk Dean Acheson remarked in 1956, trying to write about the “true” Brandeis should be put in a file labeled: “Too Hard.”
Rosen’s accessible prose makes a difficult intellectual feat look easy. He provides an excellent introduction to Brandeis’s ideas about government regulation and big business, free speech, technology and privacy, and Zionism. He deftly uses the existing scholarly literature and Brandeis’s published letters, but also mines several new sources, incuding letters to Rosen from the late sociologist David Riesman, who spent an unhappy term clerking for Brandeis. Finally, Rosen interviews three current Supreme Court justices — Stephen Breyer, Ruth Bader Ginsburg and Elena Kagan — about how Brandeis’s ideas have influenced their jurisprudence.
Rosen’s book, part of Yale’s Jewish Lives series, convincingly demonstrates that Brandeis was one of the greatest constitutional philosophers of the first half of the 20th century and that his ideas anticipated some of our current legal and political debates — but not all of them. He had nothing to say about one of the century’s most important constitutional issues: how the 14th Amendment protects the rights of African Americans. As a role model for 21st-century American constitutional law, we need a Supreme Court justice with a better understanding of race, someone who can practice judicial restraint yet protect minority rights.
By Jeffrey Rosen
Yale. 242 pp. $25