What Would Brandeis Do?

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.

JG: On to more secular matters (though in truth, I tend to think that Brandeis's dissatisfaction with the way the American economy was organized could have been a manifestation of his sense of Jewish morality). What do you think Brandeis would think of President Obama's attempts to reform the financial sector? My guess -- and tell me I'm wrong -- is that he would find these efforts thoroughly inadequate, and would mock those CEOs who today whine about Obama's attitude toward big business.

JR: Yes, Brandeis would have objected to the Obama financial reforms for relying on the federal government too little (in not breaking up the mega banks) and too much (in creating new federal oversight bodies) at the same time. He would have wanted stronger leverage requirements and a stronger version of the Volcker rule, prohibiting proprietary trading for the banks' own accounts -- a vice which fulfilled his warnings of how banks take reckless gambles with "other people's money" without understanding or shouldering the risks. But, given his fears of the "curse of bigness" in government as well as business, he wouldn't have shared the Obama administration's faith that federal regulators can understand complicated financial risks any better than the bankers can. He would have objected that the watering down of the financial reforms by the Summers-Geithner Wall Street wing of the Democratic party vindicated his fears about the political power of "our financial oligarchy." He would have supported the amendment offered by Sen. Al Franken but dropped in conference that prohibited the megabanks from gaming the financial ratings agencies. And he would have been merciless about the CEOs. You wonder why there are no administration officials who are as enthusiastic as Brandeis about Zionism; I wonder why we see so few economic populists in the Brandeis tradition -- with the exception of the superb Elizabeth Warren.

JG: Would a person with Brandeis's pre-Court track record on issues of economic populism receive a Supreme Court nomination in today's environment?

JR: Anything's possible. Imagine that Elizabeth Warren were ten years younger -- and had served for a year as head of the Consumer Finance Protection Bureau, to which she's just been nominated. Critics, of course, would charge that she lacks experience -- just as they're doing now, and just as they did in an ineffective attempt to attack Elena Kagan. But the experience charge never goes very far, as William Rehnquist, who was appointed from the Nixon Justice Department, can attest. But although I think someone like Warren could be confirmed (with a fight), your question is whether she would be nominated in the first place. And President Obama, despite his generous support of Warren over the years, hasn't really embraced her economic vision. Simon Johnson of MIT, the academic heir to Brandeis today, notes that in 1890, there was no national constituency for economic populism. But by the 1912 election, two of the three president candidates -- Wilson and Roosevelt -- were committed economic populists. That reflected two decades of grass roots activism by progressives at the state level. So maybe we shouldn't blame President Obama for not embracing economic populism or progressivism on his own; on the other hand, after the most serious economic crisis since 1929, you'd think that a little presidential leadership on this issue might help jump start the grass roots activism. In other words: I think an heir to Brandeis could, in fact, be nominated and confirmed; but we'd need a president who cares enough about Brandeis's economic and political vision to take the heat for the nomination.

JG: If Brandeis were alive today and had a blog, a) what would he blog about? b) would he blog for an established media company or would he curse bigness and blog independently? and c) What would he call his blog?

JR: If Brandeis were alive today, I find it hard to imagine he would have had a blog. Not to say that he would have been indifferent to the promise of the blogosphere: As I said in the piece, I expect he would have been nervously optimistic about the opportunities for citizens in bounded communities such chat rooms and comments sections to achieve the kind of engaged deliberation on a human scale that he thought was necessary for the flourishing of democracy; and at the same time, he would have been disappointed (but not surprised) by the polarization of speech on the Internet in "communities of interest" led by digital Torquemadas that sometimes degenerate into electronic mobs.

Personally, though, Brandeis would probably have been hesitant to write with the speed and range and lack of thorough preparation that the blogosphere sometimes encourages: he was famous for his exhaustive background reading, relentless fact-gathering and multiple drafts before he allowed anything to be published under his name, and he ribbed Holmes for purporting to be interested in facts while being too lazy actually to master them. (For vacation reading, Holmes, unlike Brandeis, preferred murder mysteries to government reports.) All that said: if Brandeis had a blog, I hope he would a) blog about financial oligarchy, technological change, Zionism, and anything else that he found interesting; b) blog independently -- he would have been suspicious of consolidated media power and c) call his blog: "Laboratories of E-Democracy" or, more concisely, "Dembitz.com."