What Would Brandeis Do?

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Jeffrey Rosen's recent New Republic cover story on Louis Brandeis was one of the best articles I've read in several months, on any subject; Brandeis is an inspiring figure to me -- economic populist, enemy of bigness, proud Jew -- and Rosen is brilliant in describing his relevance today. If Brandeis were alive, he would dominate the debates over banks and privacy and technological change, and he would be ardent in his support of the nomination of Elizabeth Warren to be the country's consumer-protection czar. I invited Rosen to answer a few Goldbloggish questions; our conversation is below.

Jeffrey Goldberg: You write persuasively of Brandeis's greatness. We'll get to questions of his economic vision, his views on privacy, and so on, but for now, answer this question -- in the form of a brief, but persuasively-argued essay -- was Brandeis the greatest of all American Jews? Or to put it another way: Brandeis or Dylan?

Jeffrey Rosen: Dylan is tough competition, but yes: there's a case to be made that Brandeis is the greatest American Jew because he was the most important constitutional philosopher, economic and technological prophet, and Zionist leader of the twentieth century. His muckraking economic criticism of the "curse of bigness" and the risks that bankers take with "other people's money" predicted the crashes of 1929 and 2008. His insistence that the Constitution has to keep pace with technological change is the most pertinent guide as we struggle with issues of privacy and technology in the age of Facebook and Google. And, as the leader of the American Zionist movement, he both helped to bring Israel into being and provided a vision of cultural pluralism that is uniquely relevant as American Jews (and everyone else) struggle with the challenges of self-definition is an age of contested identity. And all this from a lawyer and Supreme Court justice! Now if only he were better on the harmonica and acoustic guitar....

JG: The inevitable question follows (well, there are a couple of inevitable questions): Why do Supreme Court justices today seem so scared to battle in the public arena, outside the Court especially, for causes in which they believe? Is it the nomination process, that weeds out controversial figures? I do believe, from what I know of Elena Kagan (who stands to occupy Brandeis's seat), that she is far more interesting than we've been allowed to see. (And by the way, a subsidiary question, as far-fetched as this sounds: Is there a chance that Elena Kagan could become a Jewish leader, from what you know of her?)

JR: Are justices today really scared to battle in the public arena for causes in which they believe? Justice Scalia isn't known as a shy and retiring fellow: In his opinions and his public speeches, he is unapologetic in defending a nostalgic ideal of cultural conservatism that he believes the Supreme Court is dismantling in front of his eyes. It's true that liberal justices, in recent years, have been far less bold than Brandeis in staking out a substantive vision of the Constitution; but that's partly because liberals today expect less from the courts than conservatives do: they believe that regulatory and political battles should be fought in the political arena, and that courts should generally get out of the way (gay marriage is an obvious exception); while conservatives are trying to use the courts to reverse their political defeats, in area ranging from economic and campaign finance reform to health care.

Still, the battlegrounds were very similar during the Progressive era, and Brandeis shows that it's possible for a progressive justice to be both restrained and visionary at the same time -- generally deferring to legislatures but also defending economic justice and civil liberties in prophetic terms. Could Elena Kagan be similarly visionary in Brandeis's seat? Brandeis, obviously, sets a very high standard, but my hope is that Kagan will adopt him as a model and take up the challenges that he issued about the need for constitutional translation in an age of technological change. And she certainly has the potential to be a Jewish leader: she identifies more strongly as a Jew than Justices Breyer or Ginsburg. And anyone who can crack jokes about how most Jews can be found in Chinese restaurants at Christmas has the potential for greatness.

JG: Agreed on Kagan re: Chinese food. A question about Brandeis and Zionism: It seems to me that there are no Jewish figures of Brandeis's stature -- particularly among those who operate in the wider, secular public-policy world -- who embrace the cause of Zionism with similar enthusiasm and bravery. Did Brandeis find himself in trouble ever for his unapologetic advocacy of a specifically Jewish cause? Why do you think it is today that, with so many Jews in the upper reaches of all three branches, no figure like Brandeis has emerged?


JR: Brandeis's personal evolution as a Zionist was one of the most remarkable aspects of his remarkable career. He had never denied his Jewishness, but for most of his life, he never identified strongly as a Jew, and he initially embraced the melting pot, anti-hyphenation assimilationism of Theodore Roosevelt. But in his 50s, he became the leader of the American Zionist movement, partly for personal reasons but mostly for intellectual ones: he became convinced that Jews could be better Americans by embracing their Jewish identity, and he thought that Zionism was a crucial part of American Jewish identity.

Did he get into trouble as a result? Brandeis's embrace of Zionism came only a few years before his Supreme Court nomination, and anti-Semitism certainly played some role in the opposition his nomination faced from the pillars of the Brahmin oligarchy, led by Harvard President Abbott Lawrence Lowell. Why are there no figures of Brandeis's stature who embrace Zionism with similar bravery today? You'll have a better answer to that question than I do, but perhaps the moral and political stakes seemed clearer in Brandeis's day than they do in ours. Brandeis thought that for Jews to be indifferent to Israel's right to exist also meant denying their own identity as Americans and Jews, and perhaps we need to remember his challenge today.

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Jeffrey Goldberg is a national correspondent for The Atlantic and a recipient of the National Magazine Award for Reporting. He is the author of Prisoners: A Story of Friendship and Terror. More

Before joining The Atlantic in 2007, Goldberg was a Middle East correspondent, and the Washington correspondent, for The New Yorker. He was previouslly a correspondent for The New York Times Magazine and New York magazine. He has also written for the Jewish Daily Forward and was a columnist for The Jerusalem Post.

Goldberg's book Prisoners was hailed as one of the best books of 2006 by the Los Angeles Times, The New York Times, The Washington Post, Slate, The Progressive, Washingtonian magazine, and Playboy. He received the 2003 National Magazine Award for Reporting for his coverage of Islamic terrorism and the 2005 Anti-Defamation League Daniel Pearl Prize. He is also the winner of the International Consortium of Investigative Journalists prize for best international investigative journalist; the Overseas Press Club award for best human-rights reporting; and the Abraham Cahan Prize in Journalism.

In 2001, Goldberg was appointed the Syrkin Fellow in Letters of the Jerusalem Foundation, and in 2002 he became a public-policy scholar at the Woodrow Wilson International Center for Scholars in Washington, D.C.

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