Nelson L. Dawson - Brandeis and America

BRANDEIS
AND AMERICA

Frontispiece: Louis D. Brandeis, ca. 1931.
Courtesy of the University of Louisville
School of Law.

Copyright 1989 by The University Press of Kentucky

Scholarly publisher for the Commonwealth,
serving Bellarmine College, Berea College, Centre
College of Kentucky, Eastern Kentucky University,
The Filson Club, Georgetown College, Kentucky
Historical Society, Kentucky State University,
Morehead State University, Murray State University,
Northern Kentucky University, Transylvania University,
University of Kentucky, University of Louisville,
and Western Kentucky University.

Editorial and Sales Offices: Lexington, Kentucky 40506-0336

Library of Congress Cataloging-in-Publication Data

Brandeis and America / Nelson L. Dawson, editor.

p. cm.

Bibliography: p.

Includes index.

ISBN: 978-0-8131-6015-3

1. Brandeis, Louis Dembitz, 1856-1941. 2. Judges--United StatesBiography. I. Dawson, Nelson L.

KF8745.B67A45 1989

347.7314dc 19

[347.30714] 89-30929

This book is printed on acid-free paper meeting
the requirements of the American National Standard
for Permanence of Paper for Printed Library Materials.

NELSON L. DAWSON

JANET B. HODGSON

DAVID J. DANELSKI

NELSON L. DAWSON

ALLON GAL

DAVID W. LEVY

PHILIPPA STRUM

MELVIN I. UROFSKY

JANET B. HODGSON

BRANDEIS
AND AMERICA

Louis D. Brandeis is a figure of perennial significance. Brilliant lawyer, innovative reformer, seminal thinker, and judicial giant, Brandeis merits all the scholarly attention he received during his lifetime and in the years since his death in 1941. Historiography does not always follow a predictable pattern. Subjects long neglected suddenly come into vogue while popular topics are strangely ignored. But whatever the causes of historiographical fluctuationand they are undoubtedly complexit is clear that Brandeis has always attracted considerable academic attention and that we are in a particularly productive phase of Brandeis scholarship.

The first era in Brandeis studies culminated in the publication of Alpheus T. Masons 1946 biography Brandeis: A Free Mans Life. Masons judicious work was based largely on the sources available during Brandeiss lifetime; some were balanced and some were uncritically laudatory. Masons book, valuable as it has been, suffers from some of the defects characteristic of biographies written close to the life spans of their subjects. It is not surprising that the book becomes weaker during the description of the latter part of Brandeiss career. Masons coverage of the New Deal years is cursory, and there is also an inevitable lack of historical perspective. However, none of these defects detract from the works valuable pioneering contribution.

The period from 1946 to 1971 is a transitional era in Brandeis scholarship, characterized most notably perhaps by a number of memoirs of Brandeis by former law clerks, other close associates, and various New Deal figures. Most of these works are positive, but some, particularly by New Deal rivals such as Rexford Tugwell, are unfavorable.

The third stage of Brandeis scholarship began in 1971 with the publication of his letters, which are being edited by David W. Levy and Melvin I. Urofsky; two additional volumes are forthcoming. The year 1971 was also the year Urofskys seminal survey of Brandeiss thought, A Mind of One Piece: Brandeis and American Reform, was published. These works and the availability of new manuscript sources have contributed to a steady increase in the number of new books, including several full-length biographies, as well as to a burgeoning periodical literature.

This latest phase of Brandeis scholarship has not only resulted in a steady expansion of knowledge about Brandeis and his career but also generated productive debate over several key issues relating to his significance.

There is the mystery of Brandeiss personality. While it would clearly be an exaggeration to describe him as Winston Churchill once described the Soviet Uniona riddle wrapped in a mysteryit is true that there remains much to be learned about his inner life. The more recent biographies by Leonard Baker, Lewis J. Paper, and Philippa Strum have helped to dispel some of the mystery, but they have not eliminated it altogether.

Brandeiss economic viewsbest characterized by his lifelong opposition to bignesshave been criticized by earlier conservatives who denounced them as evidence of his hostility to corporate America and by New Deal liberals who dismissed them as evidence of a nostalgic Jeffersonianism locked in Quixotic combat with the exigencies of twentieth-century business evolution. More recent scholars, notably Thomas K. McCraw, have moved beyond these earlier categories to subject Brandeiss economic philosophy to a searching analysis by calling into question the adequacy of his grasp of the varieties of corporate structure and their implications for economic policy. The debate on Brandeiss economic philosophy continues.

Perhaps the most significant of the current issues in Brandeis scholarshipand certainly the one that has received the greatest attentionis the question of judicial propriety. The remarkable range of Brandeiss political activities before his 1916 Supreme Court appointment has long been understood. The extent of his extrajudicial activities after 1916, however, has received less attention. Brandeiss contemporaries, both associates and rivals, knew of at least some of his activities, and later scholars began supplying more details. The issue, which had never been wholly neglected, came into prominence in 1982 with the publication of Bruce A. Murphys The Brandeis/Frankfurter Connection: The Secret Political Activities of Two Supreme Court Justices. The critical tone of the book, reinforced by the publishers sensationalistic marketing efforts, ensured that it would stimulate a reevaluation of Brandeiss extrajudicial activities, particularly during the New Deal, as well as an intense debate over the validity of Murphys view of Brandeis and Frankfurter.

There are other aspects of Brandeiss career that are receiving renewed attention as well. His relationship to the Progressive movement is subject to continual study as historians seek to grapple with the bewildering variety of Brandeiss reform activities in the context of an ongoing debate over the nature of progressivism. Brandeiss relationship to Zionism is another intriguing subject that bears on the mystery of his personality, particularly the nature of his ethnic identity. In the light of all these issues clamoring for renewed attention, one is almost tempted to take his judicial accomplishments for granted, and yet this subject has by no means been exhausted.

This is clearly a dynamic period in Brandeis studies. The present collection of essays is particularly timely because it offers a fresh examination of the current issues. It is offered not only as a useful assessment of current scholarship but also in the hope that it will help stimulate further study. Even a superficial glance at the titles of the essays in this book reveals the range of Brandeiss interestsfrom general involvement in social and economic reform to intense concern with constitutional issues, Zionism, progressivism, and the New Deal. It is difficult to think of any major area of American life, with the exception of diplomacy, in which Brandeis was not deeply engaged. A profound consistency of social philosophy undergirded his varied activities; and yet if he hadin the memorable phrase used to describe this intellectual unitya mind of one piece, he was also, as the diversity of these essays demonstrates, a man of many parts.