Louis Brandeis: First Jewish Supreme Court Justice

On June 1, 1916, President Woodrow Wilson achieved one of his greatest political triumphs when his controversial nominee for the U.S. Supreme Court, Louis Dembitz Brandeis, was confirmed as the first Jewish Supreme Court justice. Brandeis, whose brilliant legal mind was acknowledged by even his staunchest opponents, had built such a successful private law practice that he was able to devote himself to supporting public causes—for which he adamantly refused any compensation. He became a fierce opponent of monopolies, large corporations and public corruption; an advocate for social reform; and a protector of workers’ rights and working conditions. He also helped pioneer a concept that has become extremely important in today’s world: the right to privacy.

In a speech Brandeis gave at his alma mater Harvard University in 1905, he said: “Instead of holding a position of independence, between the wealthy and the people, prepared to curb the excesses of either, able lawyers have, to a large extent, allowed themselves to become adjuncts of great corporations and have neglected the obligation to use their powers for the protection of the people. We hear much of the ‘corporation lawyer,’ and far too little of the ‘people's lawyer.’ The great opportunity of the American Bar is and will be to stand again as it did in the past, ready to protect also the interests of the people.”

As a crusading “people’s lawyer,” Brandeis won many victories for working people and the general public, and worked hard to support Woodrow Wilson during the presidential campaign of 1912—and later, helped President Wilson formulate his ideas on how to combat monopolies and regulate large corporations. As a consequence of all this judicial and political activism, Brandeis earned the enmity of conservative Republicans and powerful, wealthy businessmen.

Therefore, it was not surprising that when Wilson nominated Brandeis for the Supreme Court on Jan. 29, 1916, the nomination was controversial and met with a great deal of opposition. After Brandeis retired from the Supreme Court on Feb. 13, 1939, his successor, Justice William O. Douglas, wrote of the opposition to Brandeis’s confirmation: “Brandeis was a militant crusader for social justice whoever his opponent might be. He was dangerous not only because of his brilliance, his arithmetic, his courage. He was dangerous because he was incorruptible.”

Douglas also acknowledged one of the strong undercurrents in the opposition to Brandeis’s confirmation: the fact that he was a Jew. As Douglas wrote, “the fears of the Establishment were greater because Brandeis was the first Jew to be named to the Court.”

Traditionally, confirmation of Supreme Court nominees had been a matter of a straightforward up-or-down vote in the Senate, usually held on the same day the president submitted the nomination. However, the controversy over Brandeis changed everything. For the first time ever, the Senate Judiciary Committee held public hearings on the nomination, and 47 witnesses testified during a confirmation process that took an unprecedented four months to complete. Bitter opposition came from such famous figures as former President William Howard Taft, who would himself go on to become Chief Justice of the Supreme Court on July 11, 1921, and former presidents of the American Bar Association.

Even the head of Brandeis’s alma mater, Harvard President Abbott Lawrence Lowell, opposed his confirmation, even though Lowell was in many ways a fellow progressive—and Brandeis had been one of the most brilliant students in Harvard’s history, graduating in 1877 at the age of 20 as valedictorian, with the highest grade point average in the school’s history (a record that took eight decades to break). The reason for Lowell’s opposition is revealed, perhaps, when one remembers that one of his more controversial efforts was an attempt to limit Jewish enrollment at Harvard to 15% of the student body. Anti-Semitism was an unspoken but strong factor in the opposition to Brandeis.

When all the wrangling was done, the full Senate confirmed Brandeis by a vote of 47 to 22 on June 1, 1916. During a 23-year career as a Supreme Court justice, Louis Brandeis continued to be the “people’s lawyer,” especially in the areas of freedom of speech and the right to privacy, and he earned a legacy as one of the Court’s greatest justices.

The following three newspaper articles are about the nomination and confirmation of Louis Brandeis to the Supreme Court. The first is a news report of his controversial confirmation. The second is a letter written in favor of his confirmation; the third is an editorial opposing him.

This news article was published by the Boston Journal (Boston, Massachusetts) on the front page of its June 2, 1916, issue:

Brandeis Wins by 25 Majority

Only One Democrat Opposes Confirmation;
Three Republicans Vote for Nominee

Washington, June 1.—The nomination of Louis D. Brandeis of Boston to the Supreme Court to succeed the late Joseph Rucker Lamar, was confirmed by the Senate today by a vote of 47 to 22. The vote, taken without debate, ended one of the bitterest contests ever waged against a presidential nominee. Mr. Brandeis will be the first Jew to occupy a seat on the Supreme bench.

One Democrat in Opposition

Only one Democrat, Senator Newlands, voted against confirmation. Three Republicans, Senators La Follette, Norris and Poindexter, voted with the Democratic majority, and Senators Gronna and Clapp would have done so, but were paired with Senators Borah and Kenyon. The negative vote of Senator Newlands was a complete surprise to the Senate, and the Nevada senator, recognizing that his action had aroused comment, later made public a formal explanation.

Newlands Explains Vote

“I have a high admiration for Mr. Brandeis as a publicist and propagandist of distinction,” said Senator Newlands. “I do not regard him as a man of judicial temperament, and for that reason I have voted against his confirmation.”

Throughout the fight President Wilson stood firmly behind his nominee, never wavering even when it seemed certain that an unfavorable report would be returned by the Senate Judiciary Committee. Before the committee voted he wrote a letter to Chairman Culberson, strongly urging prompt and favorable action.

The new justice was born 60 years ago in Louisville, Ky., graduated from Harvard University in 1877 and began the practice of law in Boston after admission to the bar in 1878. He probably will take the oath of office June 13, a week from Monday, just before the Court adjourns for the summer recess.

Nomination Sent in Jan. 29

The nomination of Mr. Brandeis was sent to the Senate Jan. 29. It was referred to the Judiciary Committee, and immediately a flood of protests against confirmation and memorials in favor thereof began to pour in.

A sub-committee consisting of Senators Chilton, Fletcher, Walsh, Cummins and Works was appointed to report on the nomination. It adopted the unusual course of holding public hearings. Clifford Thorns, railroad commissioner of Iowa, was the first witness, protesting against confirmation on the ground that Mr. Brandeis had been guilty of unprofessional conduct in handling the 8 per cent. rate advance case before the Interstate Commerce Commission. Sidney W. Winslow, president of the United Shoe Machinery Company, testified that Mr. Brandeis had been guilty of unprofessional conduct in relation to his company, and shortly thereafter Austin G. Fox, a New York attorney, appeared before the committee as the representative of 85 citizens of Boston, headed by A. Lawrence Lowell, president of Harvard, and took charge of the opposition. Then United States District Attorney George W. Anderson of Boston, at the request of the committee, undertook direction of the case for those favoring confirmation.

47 Witnesses Testified

In all, 47 witnesses were heard and 1,500 pages of testimony taken. William H. Taft, Simeon E. Baldwin, Francis Rawle, Joseph H. Choate, Elihu Root, Moorfield Storey and Peter W. Meldrim, all former presidents of the American Bar Association, wrote protests to the committee against confirmation, and Charles W. Eliot, president emeritus of Harvard, and many others wrote in favor of confirmation.

On April 3 the sub-committee, by a strict party vote, recommended confirmation, and on May 14 the full committee agreed to a favorable report by another strict party division.

This supportive letter was written by Edward Albert Filene, the successful businessman (Filene’s Department Stores chain) and philanthropist who, like Brandeis, was the son of Jewish immigrants. It was published by the Boston Journal (Boston, Massachusetts) on June 2, 1916:

Filene Pleased with Brandeis’ Victory

Commenting on the confirmation of Louis D. Brandeis yesterday, Edward A. Filene said:

“The country is to be greatly congratulated on Mr. Brandeis’ confirmation. He will add a very strong element to the Supreme Court from the fact that he has been in closer touch with all classes of our people than any other man now on that bench. The knowledge obtained by this closer contact, when passed through so judicial a mind as that of Mr. Brandeis, cannot but make greatly for justice in the fundamentally important cases that come before the Supreme Court. As a result, I believe there will be a better understanding of, and higher respect for, that body.

“One of the things that has troubled me profoundly in the contest over his confirmation is the large number of people who, while strongly favoring his confirmation in private, have been afraid to publicly support him. Many of these have been men who, from personal experience, have known his fairness and the judicial quality of his mind. They have known his devotion to the public good and his continued sacrifices for the cause of right, but they were afraid to bear testimony because they felt they owed it to their families and to their duty to succeed, not to incur the enmity of the men in high places who opposed him.

“There must have been extraordinary pressure brought to bear upon some of those men to cause them to refrain from taking sides in a contest which was so important to the future of our country. No phase of this controversy is of such significance to us as this fact: that young men who desire to succeed in our community, and older men who have been materially successful, should fear to do what their moral convictions urge them to do—should so suppress their moral and civic courage as to fear to take a stand openly on such a great public question.”

This editorial opposing Brandeis’s confirmation was published by the Olympia Record (Olympia, Washington) on June 2, 1916:

The Confirmation of Brandeis

There must have been tremendous pressure brought to bear to bring affirmative votes enough to confirm Louis D. Brandeis as a member of the United States Supreme Court. After all the derogatory facts brought out at the hearing, nothing but the strongest kind of political allegiance to the President could force Brandeis down the gullets of the Senate.

The Supreme Court of the United States should remain unsullied from even the breath of suspicion. Caesar’s wife should be on no higher plane than the highest judicial tribunal of our land, and the election of members concerning whom there are doubts, is palpably a mistake. If it were left to the personal discretion of the individual members of the Senate there is no doubt as to what would be done, but with the invisible hand of the President shaking a finger at any senator who dares cross the official path, most anything can be jammed through.

For more information, visit the Guide to the Papers of Louis Dembitz Brandeis website provided by the University of Louisville’s Louis D. Brandeis School of Law.