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Insiders and Outsiders The story of Jewish leadership in American society, and specifically of a half-century of Jewish leadership on the Supreme Court of the United States, plays out the title of a poem by Archibald MacLeish: "America Is Promises." From the very beginning, America has indeed been promises, often cast in the form of bold assertions, starting with the statement in the Declaration ofIndependence that "all men are created equal." What has distinguished this nation from virtually every other country in the world has been the nobility of its promises and (with some inexcusable exceptions) the strength of its national commitment to keeping them. Success in honoring this commitment depends in part on America's capacity to produce inspired leaders. If de Tocqueville was correct when he wrote, in the 1830s, that the American aristocracy "is not among the rich, who are united by no common tie, but ... it occupies the judicial bench and the bar," then a significant number of Jewish lawyers have been a part of that aristocracy. In an unbroken succession extending for fifty-three years-from Woodrow Wilson's appointment of Louis Dembitz Brandeis in 1916, through the appointments of Benjamin N. Cardozo in 1932, Felix Frankfurter in 1939, and Arthur J. Goldberg in 1962, to the resignation of Abe Fortas in 1969-five Jews served as justices of the United States Supreme Court. During six of those fifty-three years, from 1932 to 1938, Justice Brandeis and Justice Cardozo served as colleagues; and during the first month ofhis tenure, Justice Frankfurter served with Justice Brandeis. Because ofthe long duration oftheir respective tenures, it is useful to focus primarily on Justices Brandeis and Frankfurter, and especially on their success in negotiating the perilous borderland between the formal commands of the law and the personal ideals that grew out of their own individual experiences, on the role that their Jewish identities may have played in the discharge of their judicial responsibilities, and on the meaning of their legacies to a tradition that seeks to preserve America as a nation of promises. Benjamin N. Cardozo, speaking in 1931 at the Jewish Institute of 119 120 Idealism and Liberal Education Religion, described one of the indispensable elements of a true moral leader: The submergence of self in the pursuit of an ideal, the readiness to spend oneself without measure, prodigally, almost ecstatically, for something intuitively apprehended as great and noble, spend oneself one knows not why-some of us like to believe that this is what religion means. The lives of Justices Brandeis and Frankfurter bear forceful witness to Justice Cardozo's ethical imperative to associate one's efforts with a cause larger than one's self. As two of the most important legal figures of this century, Brandeis and Frankfurter were idealists, intellectuals, and powerful spokesmen for the philosophy of judicial restraint-Brandeis, the "people's advocate," pursuing social justice and the right to privacy; Frankfurter, the Harvard Law School professor and presidential counselor , devising new theories offederal jurisdiction and constitutional adjudication . What role did their Jewish identities play in the character and texture of their judicial achievements? Louis D. Brandeis was born in Louisville, Kentucky, in 1856, to immigrant parents of Bohemian origin. His early life was one of virtual assimilation into the mainstream of American culture. His family "wore their Jewishness lightly," in the words of Robert A. Burt, author of a fascinating study of Brandeis and Frankfurter entitled Two Jewish Justices : Outcasts in the Promised Land. Although Brandeis's parents did not deny their Jewish identity, neither did they choose to attend synagogue , to provide their children with religious instruction, or to observe the holy days. In his book The Jews in America, Arthur Hertzberg has placed a turning point of Brandeis's life in 1910, when he came to know Eastern European Jews engaged in a bitter garment workers strike. He was deeply impressed by these poorly educated immigrants, in whom he found "in a striking degree the qualities which, to my mind, make for the best American citizenship, ... a true democratic feeling and a deep appreciation ofthe elements of social justice." Brandeis came to believe that these immigrants from Eastern Europe embodied "the age-old ideals of the Jews," which he asserted were identical to "the twentieth-century ideals of America." Three years later, in 1913, at a more public turning point in his life, Brandeis abandoned the comfort of his assimilated status and embraced the cause of Zionism-until then...


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