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Article Excerpt
The year 1856 was a vintage year for brilliant Jewish lawyers named Louis. On November 13, 1856, Louis Brandeis was born in Louisville, Kentucky. One month later, on December 14, 1856, Louis Marshall was born in Syracuse, New York. Louis and Louis were both first-generation Americans, born of central European Jewish parents. They both compiled stellar academic records. They both went on to have a profound affect on American law. Both were considered for seats on the U.S. Supreme Court, although only one of them made it. (1) And both became eminent leaders in American Jewish life.
Yet while both men earned enormous respect within the Jewish and general communities, they never became friends and rarely worked together. They differed religiously, philosophically, and politically. They approached Judaism, America, and even the law itself from sharply different perspectives.
The parents of Louis Brandeis and Louis Marshall arrived in America at approximately the same time in the middle of the nineteenth century. (2) Brandeis' parents hailed from Prague, Marshall's father from Baden and his mother from Wurttemberg. The two fathers had experienced prejudice and privation in central Europe that precipitated their emigration. Adolph Brandeis, who grew up in an urban area and studied at the Technical School of Prague, was imbued with German liberalism and sympathized with the Revolutions of 1848. Jacob Marshall, born in a border village, was more traditional in his outlook. Both men luxuriated in the freedom America granted them, and both were married to fellow immigrants in the United States (Brandeis to Frederika Dembitz and Marshall to Zilli Strauss). Adolph Brandeis, who became a grain and produce merchant in Louisville, prospered. His youngest son, Louis, grew up in what his biographer calls an "atmosphere of comfort and success." (3) The family's financial fortunes only declined later, in the 1870s, when Louis Brandeis was a teenager. Jacob Marshall, by contrast, experienced real poverty. For a time, he barely scraped by: he was a porter, a peddler, and ran a fruit stand. The year his eldest son, Louis, was born, he entered the hide and leather business and did better, but never became rich.
Religiously the Brandeises and Marshalls differed markedly. The Brandeises formed part of an extended network of liberal central European Jews, some of whose ancestors had followed the pseudo-messiah Jacob Frank. (4) Their descendants--people with surnames such as Wehle, Goldmark, Dembitz, and Brandeis--married one another and, with a few notable exceptions (the most outstanding being Louis Brandeis's Orthodox uncle, Lewis Dembitz), steered clear of formal religion. Brandeis' extended family (he called them "unser eins") cherished instead a series of "desirable virtues." (5) Attributed by one descendant to Frank, these included high intelligence, a blameless mode of life, and "the most rigid sense of morals, justice and charity." (6) Adolph and Frederika Brandeis were buried in Louisville's Adas Israel cemetery but maintained only minimal ties, so far as we know, to Jewish religious life. They observed no Jewish holidays or rituals whatsoever. (7)
The Marshalls, by contrast, were Orthodox Jews. They kept kosher, observed the Sabbath, and celebrated Jewish holidays. When the Syracuse synagogue, Society of Concord (Keneseth Sholom), split over the introduction of religious reforms in 1864, Jacob Marshall was one of those who departed to form the more Orthodox Adath Jeshurun. Louis Marshall's parents remained traditionally observant for the rest of their lives. (8)
Orthodox or not, central European Jews in America, like the Brandeises and the Marshalls, cultivated the ideals of bildung. They promoted both the acquisition of knowledge and a sharpened appreciation for everything "good, beautiful and true." (9) They believed deeply in the value of education. Both Louises, in response, made their parents proud. Brandeis, at sixteen, won a gold medal at the Louisville Male High School for "pre-eminence in all his studies" and spent three terms in Germany, where he became an outstanding student at Dresden's Annen Realschule. (10) Marshall, with his photographic memory, mastered four foreign languages--French, German, Latin, and Greek--at Syracuse High School. (11) Neither man went to college but instead, following the custom of the day, went directly to law school, where they became legends in their time. Brandeis at Harvard Law School achieved a record-breaking average of ninety-seven, became the class valedictorian, and graduated several months shy of his twenty-first birthday. It was a feat so unusual that it demanded a suspension of the college's rules in order for him to obtain his diploma. (12) At Columbia University Law School, Marshall managed to complete the entire two-year course in just a year, and was long recalled as a prodigy who could rattle off cases, complete with precise citations and page numbers, when called upon in class. Remarkably, he too left law school prior to his twenty-first birthday. In his case, it meant that he never formally received a degree--"two years actual attendance was required." For several months, until he was old enough to pass the bar, he worked writing briefs for other lawyers. (13)
As newly minted attorneys, Louis and Louis began their careers close to home. Marshall returned to Syracuse and joined the well-regarded law firm headed by William Crawford Ruger, later chief judge of the New York Court of Appeals. (14) Brandeis moved to St. Louis, close to his favorite sister, Fannie, and her husband, and joined a less prestigious law firm headed by a distant relative, James Taussig. Within a year, however, Brandeis returned to Boston and formed a new and more successful partnership with his socially well-connected friend and classmate, Samuel D. Warren. (15) Entering the field when they did, neither Marshall nor Brandeis felt constrained to join a Jewish law firm in order to secure employment. Discrimination against Jews in the legal profession was a somewhat later development. (16)
As bright young Jewish lawyers starting out in the profession, the two Louises received encouragement from the Jewish community. In 1880, Brandeis--when he was all of twenty-four--was hired by the United Hebrew Benevolent Association of Massachusetts as a plaintiff's attorney. The case ostensibly involved nonpayment on a pledge but soon developed into a more ominous challenge to the Jewish charity's corporate existence (since subsequent to its organization, the corporate laws of Massachusetts were changed). Brandeis won the case in the Massachusetts Supreme Court, establishing the principle that "the repeal of a general corporation law ... does not terminate the existence of corporations organized under it." (17)
At thirty-five, Marshall was likewise retained to argue a significant case for the Jewish community. He defended the North American Relief Society, set up to relieve the indigent Jews of Palestine, in its effort to obtain funds from the will of a Jew named Sampson Simson, who had left money to promote education among the poor Jews of Palestine. Marshall valiantly argued that the Jewish concept of "relief" entailed just the kind of educational assistance Simson had stipulated, and he brought in two learned rabbis, one traditional and one Reform, to support his case. Nevertheless, he lost 4-3 in the New York Court of Appeals, a defeat that continued to rankle him some thirty-three years later. (18)
By the time the North American Relief Society retained him, Marshall was already deeply involved in Jewish communal affairs. In 1878, at age twenty-two, he helped to found the Jewish Orphan Asylum Society of Syracuse. Five years later he lectured at the Young Men's Hebrew Association of New York and by 1890 stood at the very top of the list of regional Jewish leaders compiled by the Rochester Jewish Tidings (his father appeared lower...
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