This spring, Brandeis University is celebrating the centennial of its namesake’s appointment to the Supreme Court in 1916. That appointment is worth remembering, marking as it did the arrival of the first Jewish justice and an important progressive voice on the court. It also offers a historical rhyme because of the purgatory that Merrick Garland recently entered, a nominee without a hearing.
Louis Brandeis was not technically a Bostonian. He was born in Louisville, to Jewish immigrants who fled Prague after the 1848 revolution. But he became Bostonian by choice after entering Harvard Law School at the age of 18 and staying here to build a family and career. The Supreme Court nomination was a tribute not only to him but also to the city where he had done so much to clarify the needs of working people. Yet, throughout a hard-fought confirmation, it was clear that Boston was not the simplest place to come from — some of the harshest criticism of Brandeis was from his own adoptive city.
To honor the anniversary, Brandeis University has held a series of public events, including a visit by the Notorious RBG, as Ruth Bader Ginsburg is now known to her younger acolytes. Washington is honoring the centennial, too, in the best way that it knows how — with a massive display of dysfunction, much like the one that Brandeis had to slog through 100 years ago.
Along with the cherry blossoms, this spring brought a flurry of reports to the nation’s capital confirming its low standing in the eyes of the public. In early March, Gallup recorded that public approval of Congress was at 13 percent, nearly the lowest ever recorded. Mutual loathing inside Congress was just as extreme, as confirmed by The Bipartisan Index, a tool that measures the number of bills cosponsored by Republicans and Democrats. On March 7, the latest index showed that the current Congress, the 114th, has nudged slightly upward from the rock bottom achieved by the 113th. But lest we take too much comfort, the same study’s two most partisan members of Congress, Bernie Sanders and Ted Cruz, were each running for the presidency.
Then there is the Supreme Court. At times, it has moderated these periods of disruption, like a patient grandmother separating two brawling children. But the unexpected death of Antonin Scalia has only made matters worse. When President Obama nominated Merrick Garland to the Scalia seat March 16, Washington suddenly had a new way to display its futility. The Republican leadership of the Senate has refused to even consider Garland until a new president is elected. Democrats are beside themselves, arguing that there is plenty of time to consider the nominee, that Garland is moderate, and that the Constitution demands due consideration by Congress. So a surreal script is being written, in which Garland is reduced to a series of photo ops with senators who will not actually talk about him, or vote, or do anything.
But history offers a modest hope that it will get better. In 1916, when Brandeis was nominated, the parties were as broken as they are today, yet the system ultimately worked. The Republicans had only recently recovered from a damaging split in 1912 between their progressive and conservative wings. The Democrats were divided as well, between one base in the rural South, and a completely different kind of Democratic Party in the cities of the North.
On Jan. 2, 1916, all of these delicate balances were thrown into jeopardy when Supreme Court Justice Joseph Lamar died after a mere five years on the court. President Woodrow Wilson might have taken a safe route. He had known Lamar as a child, when they were neighbors in Georgia, and he could easily have found another easy-going Southerner who would go along, the way Southern justices always seemed to. Instead, he looked to Boston, where he found a rising star of the left, guaranteed to raise hackles.
Wilson’s reputation has eroded in recent years over his racial insensitivity, and his alma mater, Princeton University, has been bitterly debating his legacy for months. But in this instance, Wilson was genuinely progressive. And Brandeis was a daring choice.
For decades, he had been well known in Boston for his legal acumen as well as his prodigious commitment to pro bono work. He had done very well as an attorney for a rising merchant elite — including friends like Edward Filene, whose famous basement revolutionized retail in Boston. His incandescent career had thrown off sparks in all directions, including his scholarship — an early essay, defending the right to privacy, is more relevant than ever today. But real life was important to Brandeis as well and flavored the way he interpreted the law, not as a set of tablets to be inherited without a murmur, but as a constant negotiation over the law as it was lived.
It helped that Brandeis was constantly rubbing elbows with all of the different types inhabiting a complex, rapidly growing city. To be sure, he enjoyed the trophies of legal success — homes on Beacon Hill, Cape Cod, and in Dedham. But he never lost sight of the problems of the poor, a vivid fact of life in turn-of-the-century Boston. They were streaming into this peninsular city from all directions, crowding into alleyways, accepting work under dangerous conditions, and trying to get through life without too many injuries. That meant constant work for a nimble-minded lawyer, especially one given to “king-erranting,” as Alice Brandeis referred to her husband’s constant activity.
By 1910, more than a third of Boston’s population (36.4 percent) was foreign-born, the all-time peak, according to the new report “Imagine All the People: Foreign Born in Boston.” Brandeis did not always approve of the immigrant community’s elected leaders, like the famous Honey Fitz, John F. Kennedy’s grandfather, and in some of his writings, he was decidedly Puritan.
But he also found fault with Boston’s insular business culture, and he was naturally drawn to the plight of a people who were often victimized by the secret decisions made behind closed doors, between corporations and legislatures in collusion. As he spoke out against Boston’s entrenched interests, he made enemies, who would happily report to the senators investigating Brandeis in 1916.
As he grew into “the People’s Attorney,” he saw malfeasance everywhere. It was natural for any adoptive Bostonian to resist the arrogance of New York, as Brandeis did when he protested an attempt by J.P. Morgan’s railroad interests to dominate local transportation. But he also stoked resentments within Boston, as he fought against local monopolies wherever he saw them — in the spread of utilities, always cozy with legislatures, or other grandiose plans to “improve” Boston for private gain. One such plan would have given a 99-year lease to a streetcar company that wanted to lay tracks across Boston Common. That this sacred space remains inviolate is one of our many invisible shrines to Brandeis.
When Woodrow Wilson ran for the presidency in 1912, Brandeis helped him formulate a series of financial reforms designed to curb Wall Street’s influence, which became known as “The New Freedom.” After Wilson’s election, Brandeis was rumored to be close to appointment as the attorney general but fell short in part because of whispers already coming from Boston against him. Three years later, Wilson saw his chance.
The Brandeis nomination stunned Washington. Conservative Republicans especially loathed him (Brandeis had exposed skullduggery in the Taft administration) and quickly demanded a Senate subcommittee investigation. A Washington correspondent said that it was the most excitement since the outbreak of the Spanish-American War. Some on the right feared that the sky was falling — The Wall Street Journal wrote, “Where others were radical he was rabid; where others were extreme he was super-extreme.” Taft, the former president, bellowed as if he had been harpooned, “it is one of the deepest wounds I have ever had as an American.” He labeled Brandeis a Socialist, a hypocrite, and a man of “infinite cunning.”
“What a rumpus the president has started up,” Brandeis wrote privately, as he girded for the kind of dragged-out nomination that has become commonplace.
Over the next four months, every aspect of Brandeis’s career was held up to rigorous examination. No question was ever asked in public about his religion, but it was surely a factor in a nation that had not settled into its religious diversity as complacently as it often claimed. From Boston came troubling whispers against him from some of the city’s most eminent voices, including that of Harvard’s president, A. Lawrence Lowell. But they were answered by voices in his favor, among them, an earlier Harvard president Charles W. Eliot and a petition signed by 713 Harvard students.
Eventually, through the kind of patient examination of the facts that he himself had championed, the investigation eventually came around to the conclusion that he was eminently qualified. On April 3, the subcommittee approved him along party lines, by the narrow vote of 3 to 2. On May 24, the Judiciary Committee approved him 10 to 8 and the full Senate 47 to 22 on June 1. When Brandeis commuted in from Dedham on the morning of his confirmation, he found a telegram from another Bostonian, Justice Oliver Wendell Holmes Jr. which read “Welcome.”
As his critics feared, Brandeis served a long time — until 1939. In his long career on the court, he wrote 454 opinions and penned 74 dissents, of such quality that the dissent became nearly as important an expression of legal thinking as the verdict itself.
But it would have cheered the same critics to know that Brandeis could be as critical of big government as he was of big business — throughout the New Deal, he often voted against the programs of Franklin Roosevelt that amassed too much power. FDR regarded the elderly justice, whom he called “Isaiah,” with a mixture of awe and frustration. It is cheering to note that Taft, so opposed to the nomination, became one of Brandeis’s greatest admirers after they served together on the same court.
Maybe that lesson still holds. The current chief justice, John Roberts, has noted that the most effective justices are the “collegial pragmatists,” the ones who “show personal as well as judicial humility,” and in the end, who “know who they are.” By any standard of measurement, Louis Brandeis satisfied that claim.Ted Widmer is the Saunders Fellow for Public Engagement at Brown University and a senior fellow of the Carnegie Council for Ethics in International Affairs. He is also a trustee of the Massachusetts Historical Society.