Pariah and Parvenu
Two Jewish Justices: Outcasts in the Promised Land.
by Robert A. Burt.
University of California Press. 157 pp. $19.95.
Louis D. Brandeis grew up in Kentucky, in the comfortable surroundings of an assimilated German-Jewish family. He carried himself as a patrician, with a personal coolness that was impervious to almost all attempts at intimacy. Felix Frankfurter, a quarter-century his junior, was born in Vienna and emigrated at the age of twelve to the United States, where he lived with his struggling parents on Manhattan’s East Side. Garrulous and ingratiating to a fault, Frankfurter was once described by his wife as having “two hundred best friends.” An unlikely pair, then—yet when the two men met in 1916, something clicked, and their friendship endured until Brandeis’s death in 1941.
The Brandeis-Frankfurter relationship has intrigued scholars and inspired a spate of books. Despite its title, however, Robert Burt’s slim volume, really an extended essay, is not another effort to explore the nature of their mutual attraction or, for that matter, to consider the propriety of the services Frankfurter performed for Brandeis while the latter sat on the U.S. Supreme Court. Nor is it really about their Jewishness, though Burt has quite a number of things to say about that. Rather, Burt, the Southmayd Professor of Law at Yale, uses the contrasts between the two men to explore the role of the judge in shaping social policy. His efforts carry him in sometimes bewildering directions, but his central thesis can be stated plainly: judicial power ought to be employed on behalf of the disenfranchised; the judge who cannot empathize with their needs lends himself to the abuse of his powers.
For Burt, Brandeis was the very exemplar of a judge. A stellar graduate of Harvard Law School, he had turned down the offer of a faculty position there (had he accepted, he would have been the first Jewish professor at the nation’s leading law school) to enter private practice in Boston. Though his partner and many of his clients came from New England’s Yankee elite, Brandeis did not seek entry into their social world. Instead, he struck an anti-establishment posture as a progressive crusader in the courts, a self-described “people’s lawyer” pursuing litigation on behalf of the working classes against employers not yet required to bargain fairly or to observe minimal levels of safety and decency. Burt argues that Brandeis deliberately maintained his status as an outsider in the Gentile world, albeit one who enjoyed some access to the bastions of high society, and used his unique position to attempt to reconcile the working and the propertied classes.
Once appointed to the Supreme Court in 1916 by Woodrow Wilson—thereby becoming the first Jew to serve on the nation’s highest bench—Brandeis (according to Burt) continued his advocacy on behalf of the powerless. Though often isolated in dissent with his colleague Oliver Wendell Holmes, Brandesis resisted the prevailing dogma that led the Court to strike down legislation protecting the rights of workers and consumers on the grounds that it infringed the superior rights of property. His views were always buttressed by careful explication of the relevant factual settings, in an effort, Burt believes, to share his empathic understanding with his colleagues on the Court and the legal establishment in general.
What accounted for Brandeis’s sympathy with the underclass? Burt believes it was his acceptance of his own status as an outsider, a Jew in a Christian nation. Indeed, the ease with which Brandeis played this role is what made it possible for him, somewhat belatedly, to embrace his own Jewishness in an unconflicted manner: in 1912 he joined the American Zionist Organization, hardly a common move among the nation’s assimilationist German-Jewish elite, and two years later became chairman of its executive committee. The characteristics that made him a good judge, Burt concludes, ultimately made him a good Jew as well.
Felix Frankfurter comes off less favorably in Burt’s account. He too excelled at Harvard Law School and, after a stint in Washington, returned to become the school’s first Jewish professor. But Burt gives short shrift to Frankfurter’s accomplishments, including his role as a founder of the American Civil Liberties Union, leading opponent of the execution of the anarchists Sacco and Vanzetti, star of the Harvard Law faculty, and adviser to Franklin Roosevelt.
Rather, Burt focuses on Frankfurter’s quest for acceptance by the Gentile world into which he, unlike Brandeis, married. This unattainable desire led to his mortification at the slightest social gaffe—and also, once Brandeis had passed from the scene, to his dissociation from Jewish affairs. (After Brandeis ascended to the Court, Frankfurter had carried out certain tasks the Justice could no longer perform, including representing American Zionist interests at the peace negotiations in France after World War I.)
To sharpen the distinction between the two men Burt employs a dichotomy proposed by Hannah Arendt, according to which the Jew can play the role in society either of pariah or of parvenu. Whereas Brandeis embraced willingly the role of the outcast, Frankfurter by his actions put himself in the category of the social climber. This presumed craving for social acceptance was the basis for what Burt characterizes as Frankfurter’s abandonment of sympathy for the powerless following his appointment to the Supreme Court in 1939.
In Burt’s view, once on the Court Frankfurter adopted an idealized majoritarian approach to the law and the role of the judge that failed to recognize the often countervailing needs of the disenfranchised, including blacks and other minority groups. And Burt argues that Frankfurter had little sympathy for his own people, either, flatly rejecting (for instance) the evidence offered him by a Polish emissary in 1942 concerning the existence of Nazi extermination camps, and refusing to use his access to Roosevelt to raise the issue. The inadequate judge was an inadequate Jew as well.
One more step is required to bring Burt’s argument to a close. In modern America, he maintains, we are all outsiders, by which he means not that we are alienated from the seats of power but that contemporary society is mobile and rootless. Thus, Jews and non-Jews alike face the choice of the two Jewish Justices: accept the role of pariah or strive to be a parvenu. The former implies a consistent sympathy with the underclasses, a trait Burt also associates with an activist judiciary. The latter carries with it the need to suppress those below us on the social ladder, lest they rise to challenge our status—a trait Burt connects with the more restrained judicial posture of the later Warren and Burger Courts.
Can the making of law and social policy really be as simple as this? That is the central question raised by this book, and to answer it we must clear away the subsidiary issues, including Burt’s rather questionable characterizations of American history and society and his distorted portrait of Frankfurter. Is it the role of the judge primarily to shape the law so as to promote the status of those remaining outside the strongholds of power? And should this, as Burt suggests, be pursued even at the cost of civic turmoil, on the grounds that suppressed rage at injustice may, in the long run, pose an even greater threat to the stability of government?
A society that protects the rights of all its citizens, regardless of their social status, is an ideal with which few would quarrel. Many would even second Burt’s apparent belief that society is obligated to advance the well-being of those less fortunate. But it is much less clear that singleminded judicial acquiescence in the demands of the underprivileged is the best way to accomplish these ends. From the practical point of view alone, judicial efforts to achieve social reform that run too far ahead of or counter to public attitudes are likely to fail or to produce unanticipated side-effects: witness the flight of white students from urban schools, and of their families from city neighborhoods, following widespread court-ordered busing. The possibility that he may be fomenting violence against the very “outsiders” he means to help might also induce a prudent judge to employ discretion in pushing the limits of the majority’s toleration.
But more is involved than pragmatic considerations. On the basis of principle, too, there is more to be said than Burt allows for a Frankfurter-like adherence to majoritarian principles except in cases of egregious infringement of minority rights. Within the realm of valid political choice, especially where the distribution of resources is involved, the wishes of the majority, manifested by their representatives, ought properly to take precedence over the predilections of their judges. Burt’s ideal judge is, in another perspective, a potential usurper of the prerogatives of the majority; why then should he warrant our respect?
In a concluding image, Burt portrays Brandeis as in the line of the biblical Prophets, “prepared to risk social order because they give highest value to individual choice.” Frankfurter, in contrast, is said to embody the characteristics of the ancient priest, “relying on ritual and demanding popular deference.” Whatever accuracy there may be in this notion of what the Prophets themselves stood for—actually, very little—one is entitled to believe that latter-day exemplars of this spirit have no place on the bench, especially if the creed they preach is conducive to social disorder. Priests, respectful of society’s traditions and institutions, cautious in demanding change, but clinging to a law that rejects injustice, may in fact offer a better model for our judiciary.