by Lewis J. Paper, Jonathan Marosz

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This vivid biography reflects the fullness of Supreme Court Justice Louis D. Brandeis' personal and professional lives. Born in Kentucky shortly before the Civil War, Brandeis rose to national fame as "the people's attorney" -- the first public interest lawyer -- and went on to become an adviser to Woodrow Wilson and a confidant of Franklin Roosevelt.

"So intimate

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This vivid biography reflects the fullness of Supreme Court Justice Louis D. Brandeis' personal and professional lives. Born in Kentucky shortly before the Civil War, Brandeis rose to national fame as "the people's attorney" -- the first public interest lawyer -- and went on to become an adviser to Woodrow Wilson and a confidant of Franklin Roosevelt.

"So intimate that the reader begins to feel like a Peeping Tom, surreptitiously peering through the parlor window at one of this country's great Supreme Court justices. In this way, Paper produces a biography about a man rather than a legal legend." (The Plain Dealer)

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The large black Pierce-Arrow wound its way down to the White House from California Street in the northwest section of Washington, D.C. The old man was dressed in a dark suit and sat stiffly in the back seat while the chauffeur maneuvered through traffic. The old man hated cars. They had a terrible impact on people. Transformed their personalities. The most placid person could become mean and aggressive behind the wheel of an automobile. Another sign of man's losing control of his environment. The old man could afford a fleet of Cadillacs, but he had vowed never to buy a car and had even resisted renting one for as long as he could. Washington was already becoming a motorized city when he came to live there in 1916, but he continued to use his horse and buggy until he was almost literally forced off the streets in the mid-1920s. No, the old man didn't like cars at all. In fact, he thought the world would be better off if Detroit were "blown off the face of the earth."

The car pulled up in front of the white mansion on Pennsylvania Avenue. The old man got out and stepped into the warm, almost balmy air. It was an unusual autumn day. But on this Saturday morning in November 1938, the old man had something more important than the weather on his mind.

He went into the mansion and was taken upstairs to the president's living quarters on the second floor. The president was getting ready to leave for Warm Springs, Georgia, for Thanksgiving and was receiving appointments in his personal residence instead of the Oval Office. At 11:20, the visitor was ushered into the room where the president was waiting.

Even though he was now eighty-two,the old man was still an imposing figure. He was beginning to stoop a little from age, but he carried his slim six-foot frame erect. His impressive shock of unkempt hair was white with a bluish tint; and his high cheekbones and other angular features made him look something like Abraham Lincoln (and for those who missed it, his wife was quick to point out the resemblance). Then there were the deep-set eyes with their bluish-gray coloring; they were so penetrating they seemed to look right through you. The old man had thousands of devoted admirers throughout the country. Some said he was the closest thing to a modern-day prophet. And Louis D. Brandeis, now a United States Supreme Court justice, looked the part.

Brandeis's relationship with Franklin D. Roosevelt went back more than twenty years. Roosevelt was an assistant secretary of the Navy and a devoted follower of President Wilson's when Brandeis was nominated to fill a seat on the Court in January 1916. Brandeis's confirmation fight in the United States Senate had been a bitter one, probably the most grueling in the country's history. Roosevelt kept in almost daily touch with the proceedings. It was primarily a matter of loyalty to Wilson. Brandeis was a nationally renowned social activist, "the people's attorney." His fate at the hands of the Senate would be a reflection of Progressive sentiment in the country, a crucial factor in Wilson's bid for reelection later that year.

Much had happened to Roosevelt since those early days. He still conveyed the same aristocratic, high-spirited air of confidence. He would still throw his head back and laugh at a joke. But he could no longer walk on his own. Polio had taken care of him there. And he was now president of the United States. He had taken the oath of office at the height of the Depression. One-quarter of the nation's workforce was unemployed. Production was only a pitiful fraction of what it had been only a few years before. Pessimism and despair abounded, and some people talked openly of a need for a new system of government.

Roosevelt did not have any well-defined program to meet the country's economic and social ills when he entered the White House. He was, first and foremost, a politician. He would listen to almost anyone and, if the politics were right, try almost anything that offered some promise. Brandeis had a lot of ideas on that score, and he had not been shy about getting his views to the president, either directly or indirectly through one of the many "disciples" who roamed Washington's halls of power. Brandeis's success with Roosevelt had been mixed; but through it all the president retained a high regard--almost reverence--for the old justice he affectionately called "Isaiah." Their relationship took a temporary turn for the worse in 1937 when Roosevelt proposed a law that would have "packed" the Supreme Court with justices sympathetic to his programs and policies. Brandeis played a key role in killing the plan, and Roosevelt was momentarily shocked and hurt by the old justice's behavior. You simply did not turn on your friends like that. And more than that, Roosevelt was convinced (at least for a time) that the Court-packing plan was a necessary step to fighting the Depression.

But on that balmy Saturday in November 1938, Brandeis did not come to talk about the Depression. He came to talk about the Jews.

The plight of Germany's 500,000 Jews had deteriorated rapidly after Adolph Hitler became chancellor in 1933. Matters reached a breaking point in early November 1938 when a seventeen-year-old Polish Jew living in Germany killed Ernest Von Rath, a secretary in the German Embassy in Paris. Immediately after receiving the news, Germans all over the country erupted in "spontaneous" demonstrations against Germany's Jews. Temples were dynamited, Jewish shops were looted, and people were dragged into the street and beaten up by mobs. In the town of Düsseldorf--home of the young killer--mobs pulled a rabbi from his temple, stomped him to death, and then brought the mangled body to the rabbi's widow just to torment her.

Meanwhile, the German government waited twelve hours before Paul Joseph Goebbels, minister of propaganda, issued a statement requesting an end to the "demonstrations." Goebbels acknowledged that the German people were filled with "justifiable and understandable indignation" over Von Rath's murder. Goebbels promised, however, that the "final answer to Jewry will be given in the form of laws or decrees." Goebbels was not one to make false promises. At least not when it came to Jews. Within a week it was reported that between 40,000 and 60,000 Jews had been arrested. New decrees were announced prohibiting Jews from engaging in a retail business, directing an industrial or commercial enterprise, attending colleges or universities, or even attending public forums for entertainment. To add insult to injury, the government then placed a $400 million fine on Germany's affluent Jews to "pay" for all the damage inflicted by the mobs.

The series of events removed any hope Germany's Jews may have had of peaceful coexistence with Hitler. But for most it was too late. Hundreds of sobbing and desperate Jews filled the American consulate in Berlin, telling tales of husbands beaten or carried away, of homes that had been ransacked, and all asking for help to emigrate to America. It was, one observer reported, a "pathetic" sight. Hundreds of other Jews took matters into their own hands and tried to cross the border into France--only to be turned back by French guards who were on orders to admit only those with the necessary visas. After a few days, Great Britain's prime minister, Neville Chamberlain, issued a mild statement condemning the situation; but there was no outrage expressed to convey genuine concern. In the United States, Roosevelt made the unusual gesture of calling reporters into the Oval Office and, while seated behind a desk cluttered with souvenirs, he read a statement protesting Germany's actions. In responding to a reporter's inquiry, however, Roosevelt said he did not expect an increase in the annual quota of 27,370 German immigrants into the United States.

It was in this setting that Roosevelt called Brandeis. The old justice was the foremost Zionist leader in the United States, and, although age now limited his activities, his concern was beyond question. Adrian Fisher, Brandeis's law clerk, answered the telephone and heard a familiar voice identify himself as "the president." Fisher at first thought it was a practical joke, but much to his later relief, he did not challenge the caller's authenticity. Fisher told the president that Brandeis did not talk on the telephone anymore, "Well, Mr. Fisher," the president said, "can you have the justice set up an appointment with me to talk about Zionism?" The message was duly delivered, Brandeis nodded knowingly, and the appointment was arranged.

Brandeis had discussed the Jewish problem with Roosevelt a month earlier. Brandeis thought that the British should allow more Jews into Palestine. It was not only their obligation under the Balfour Declaration; it was the only way Jews could be saved from Hitler.

When Brandeis entered the White House on that Saturday in November, Roosevelt explained that he was about to go South and wanted to report to Brandeis about developments since their last talk in October. Shortly after that talk, Roosevelt said, he had called in Sir Ronald Lindsay, the British ambassador to the United States. Roosevelt wanted Britain to allow more Jews into Palestine. There was simply no merit to the Arab opposition, he told Lindsay. Palestine represented only 5 percent of the Arab land area. The Arabs had more than enough land to meet their people's needs. Indeed, Roosevelt advised Lindsay, the Arab opposition probably reflected only the indecision and inconsistency of British policy. The ambassador countered that perhaps British Guiana could be opened to the Jews. Roosevelt did not think much of that idea, although Tanganyika and the Cameroons--two African colonies--might offer something. There the matter had been left.

After relating this conversation, the president told Brandeis that the events of the past week had disturbed him greatly. Perhaps they could use private and public sources to raise $300 million to move Germany's Jews, but for the time being he felt that he had done all he could do politically. He was going to Georgia for the next ten days, but if there was anything Isaiah felt he could do, the president said, he was prepared to return to Washington on short notice.

Brandeis was impressed with Roosevelt's efforts. He asked only one thing of the president before he left Washington. In the wake of the German uprising against Jews in the last week, more pressure had to be placed on the British to open Palestine. Reports of an increase in Jewish immigration quotas were already floating around Washington. Would the president issue a statement acknowledging the reports of increased immigration and express his hope that they were true? Roosevelt was agreeable to that. Their twenty-minute meeting over, Brandeis left the president for the ride back to his apartment on California Street.

Although Brandeis was pleased with the statement later issued by the president, he was not satisfied with the impact. For a variety of reasons, the British remained intransigent and did all they could to close the doors to Jewish immigration to Palestine. For Brandeis it proved to be too much. It would be better to rely on diplomacy. But if normal channels did not work, he was prepared to support other means. He had already provided thousands of dollars to David Ben-Gurion to buy arms for the Haganah, the Jewish defense force in Palestine. He continued to give Ben-Gurion money to use at his discretion, and he rejoiced in May 1939 when he learned that the Haganah had arranged to smuggle Jews into Palestine. Necessity sometimes had to be the mother of invention.1

There was a certain irony in Brandeis's interest in Jews and Zionism. He was not at all religious. In fact, he was puzzled by people who relied on God and religious institutions. So he did not join the Zionist Movement to push Judaism. He saw Zionism as a social experiment. Palestine offered the opportunity for people to mold their economic and political environment to meet their needs and still stay in control. The element of control was especially important. Man was weak and quite fallible, in Brandeis's view. Most people, however, did not understand that. They were always taking on far more than they could handle. Man, Brandeis thought, would find more fulfillment if he learned to live within his limits. That was what made Palestine so appealing to him. It promised a future that would be almost impossible to obtain in the United States. Everything was becoming too big in America--business, unions, even government. It was getting more and more difficult to be in charge of your own destiny. In Palestine, small and undeveloped, there was a better chance for a person to nurture his or her talents and interests. And, most important, a person could have more independence.

Brandeis's intense concern with Zionism was, in these respects, similar to the concerns that motivated him in other areas both before and after his appointment to the Court. It did not matter whether he was fighting the railroads, developing a new insurance system, attacking a president of the United States, or deciding cases as a justice of the United States Supreme Court. In every instance he was working for his vision of what society should be--a place where people could control their environments and maximize the chances of fulfilling their potential. It was, to be sure, a large task. But Brandeis was not one to be frightened by broad challenges. His intellectual skills were formidable. His ability to draw people to work with him was equally impressive. And perhaps of greatest importance, he had an extraordinary faith in his own ability to achieve. With tireless effort, patience, and a little luck, he believed, almost anything was possible.

All this makes the story of Brandeis's life a fascinating one. He was a complex figure of unusual talents who lived and worked at a time when America was experiencing many changes. He grew up in Kentucky during the Civil War, developed a large corporate law practice in Boston during the industrial revolution, embarked on a career of public activism during the height of the Progressive Movement, spearheaded the emergence of Zionism both in America and abroad, sat on the United States Supreme Court when it was almost the center of Washington society, and advised a president on how to cope with the Depression. When he died on the eve of Pearl Harbor, America looked a lot different from the country Brandeis had come to know as a boy in Louisville.

To understand Brandeis's development, then, is to understand something about the forces that shaped America's growth. For while we can debate the wisdom of his ideas and the value of his accomplishments, there can be no denying that Louis Brandeis had a profound influence on our nation's history. To fully appreciate all this, however, one must, as in all stories, begin at the beginning.

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