I recently stumbled upon an old newspaper article that contained an anecdote about Brandeis attending a baseball game that I had never heard before. Normally I would discount a story like this as being too good to be true, but I am going to suspend my disbelief in this case partly because the reporter claims he heard Brandeis’s brother Alfred tell this story numerous times, and also because I really, really want it to be true.

The story takes place at a World Series game in which the Boston Braves were playing. The Braves’s season had gotten off to a terrible start and their coming back and entering the World Series (which they would win) is apparently one of the greatest comeback stories in baseball history. But as Brandeis was not a follower of sports, he probably would have been aware of little of this.

As the reporter tells it:

Next to him…there sat a man who seemed to be rather egotistical, and constantly shouted advice to the players on the field. The future judge stood this for a time and then turned to his neighbor with a word of counsel.

“It’s easy to criticize,” he said, “but don’t you think those men out on the field know more about it than we do?”

His neighbor smiled and would have had every right to answer, “Speak for yourself, John,” but he was satisfied to hand him a card. It bore the name of Tyrus R. Cobb.

If this really happened and that was really was the notoriously prickly Ty Cobb, Brandeis is lucky he just got a business card instead of a punch in the face.

(Taken from the article “Off the Record” by Harry Bloom and published in the November 19, 1938 issue of the Louisville Times.)

Update (11/30/2016): It would appear that Cobb really was in Boston for the World Series. Check out this article about the final game (be sure to look at the footnotes). It looks like this story might actually be true.


The Louis D. Brandeis School of Law at the University of Louisville had a big week last month. Every year or so, the law school awards the Brandeis Medal to individuals whose lives and work demonstrate a commitment to “the ideals of individual liberty, concern for the disadvantaged and public service.” This year’s recipient was Supreme Court Justice Elena Kagan. Justice Kagan was supposed to come to the law school on September 15 to pick up the award, but she had to postpone her visit for health reasons, (we had a party that night anyway,) and she ended arriving over a month later, on October 24. A luncheon was held in her honor in a suite in UofL’s football stadium that was attended by about 300 professors, students and local lawyers. Normally the medal recipients give a speech, but this year Justice Kagan sat on the stage and answered questions from Brandeis Law School professors Justin Walker (who studied under Kagan at Harvard) and Laura Rothstein. The resulting discussion was light on law and veered more towards the personal. My favorite anecdote involved the confirmation process. While she was making the rounds of the Senate while waiting to be confirmed, one Western senator challenged her on gun control. While admitting she had never fired a gun, Kagan stated that she had always been curious about them and more or less invited herself to a hunting trip on the Senator’s ranch. When the flustered Senator seemed disinclined to accept the invitation, she quickly proposed an alternative: as soon as she got on the bench, she said would ask Scalia to take her hunting with him. Scalia later delightedly agreed, which led to regular hunting trips for the two of them.

After the talk, Justice Kagan was presented with the medal and a pair of Muhammed Ali boxing gloves. She then returned to the law school, where she had a Q&A with the students and then took a tour of the Brandeis papers before flying back to DC that afternoon.

On that same night, the Filson Club hosted a speech by Jeffrey Rosen who was in town to promote his new book Louis D. Brandeis: American Prophet. Rosen’s spoke to a crowd that looked it was slightly larger than the one for Kagan earlier that day, and his enthusiasm for Brandeis was so infectious that when he urged them to read Brandeis’s opinions in Olmstead and Whitney when they got home, I really believed that half of them were going to do it. Rosen came to the law school the next day where I subjected him to a 90 minute tour of the Brandeis archive. Whereas Justice Kagan showed polite interest in the tour, Rosen showed the same amount of enthusiasm as he did during his speech, as I pulled out all of the highlights from the collection: Brandeis’s copy of the Muller v. Oregon brief, his grade school reading primer, a first edition of Other People’s Money with clipped newspaper articles pasted in, his Supreme Court resignation letter, etc. He was even gracious enough to let me take a picture of him reading Frederick Douglass’s letter to John Marshall Harlan.

Jeffrey Rosen reading a letter to John Marshall Harlan from Frederick Douglass, while visiting the Louis D. Brandeis School of Law Library.

 

During the week before, the Supreme Court Historical Society and the law school co-sponsored an event celebrating the centennial of Brandeis’s ascension to the Supreme Court. The night featured a speech by Mel Urofsky, which was followed by a recognition of past Brandeis Medal recipients. Attendees included Laura Rothstein, Brandeis Medal recipients Elena Kagan, Ruth Bader Ginsburg, Stephen Bight, and Sam Dash’s daughter. The event was recorded and will be broadcast on C-Span 3 at 4:55 pm on November 5.


I have been swamped at work and as a result gotten behind in my Brandeis duties. So here, almost five months late, is my write-up of Louis D. Brandeis: American Prophet by law professor and journalist Jeffrey Rosen, which is part of Yale Press’s series called Jewish Lives. I haven’t read any of the other books in the series, but I suspect that Rosen’s book is different from them in that this book is not so much a biography as it is, as he puts it, “a passionate case of why Brandeis matters today.” And passionate it is; you can feel Rosen’s admiration for Brandeis emanating off of nearly every page.

Rosen doesn’t completely eschew biography as he gives a good summary of Brandeis’s life, peppered with new personal details gleaned from interviews with Brandeis’s grandchildren. But the bulk of the book is devoted to Brandeis’s various causes: regulated competition, industrial democracy, scientific management, unions, regularity of employment, savings bank life insurance, the Brandeis Brief, the Ballinger-Pinchot affair, size and efficiency, interlocking directorates, price fixing, commercial banking vs. investment banking, free speech, privacy, federalism, and Zionism. (I’m forgetting a few but you get the idea.)

The ongoing theme is about how Brandeis was “Jefferson’s philosophical successor.” Rosen posits a Jefferson vs. Hamilton model of economics and shows how reflects Brandeis’s philosophy and his causes: small vs. large, agricultural vs. industrial, liberty vs. efficiency, etc. He makes a particularly convincing argument as to how Jefferson (and Alfred Zimmern) influenced Brandies’s decision to become a Zionist.

In the last chapter, Rosen plays the dangerous game, and favorite conference topic, of predicting how Brandeis would react to current issues if he were alive today: such as privacy and the cloud, constant surveillance, Citizen’s United and the right to be forgotten. It is, of course, impossible to say how accurate Rosen’s guesses are, but they make for provocative reading.

In the course of preparing for this post, I found a video on YouTube of a conversation about Brandeis between Rosen, Mel Urofsky and Philippa Strum, which was recorded on June 1, the 100th anniversary of the Senate’s confirmation of Brandeis’s Supreme Court nomination. Rosen’s enthusiasm for the topic is palpable as it is for sharing the stage with Urofsky and Strum, although that doesn’t stop him from comically cutting off Urofsky a couple times. There is also a couple interesting debates over just how much Brandeis was influenced by Jefferson and just why Brandeis became a Zionist.


(I have been doing this blog for so long that I am starting to lose track of what I have written. I thought I had addressed this issue in an earlier post but I cannot find it. If I do find an earlier post on this subject, I will probably delete it in favor of this one.)

I have discovered a series of YouTube videos that seem to have been created by robots that are trying to teach humans how to speak English correctly. There is even one that claims to show the correct pronunciation of Louis Brandeis. The most striking thing about this video is that it is dead wrong and is unfortunately muddying what is already a divisive (in the most minor way possible) issue: whether Brandeis’s first name is pronounced Lou-is or Lou-ee. The robots claim it is Lou-is, but are they right?

The final word on this raging controversy has to be Todd C. Peppers in his article “A Justice by Any Other Name: the Case of Louis D. Brandeis,” which was published on pages 8-9 in the Volume 19, 2nd issue of The Supreme Court Historical Society Quarterly. (Unfortunately, I cannot find any copies of this article online.) Apparently, during a conversation with Brandeis’s grandson Frank Gilbert, Peppers made the mistake of referring to Brandeis as “Lou-is.” Gilbert quickly corrected him: “It was pronounced ‘Lou-ee’ not ‘Lou-is’.” After having heard it pronounced “Lou-is” his entire life, Peppers was intrigued and decided to look further into the matter. Brandeis’s other grandchildren, Alice Popkin and Walter Raushenbush also confirmed the “Lou-ee” pronunciation and he uncovered anecdotes about Brandeis’s daughter Elizabeth Raushenbush and the son of Brandeis’s law partner Edward McClennen that confirmed it as well.

One would think that this would be persuasive enough, but Brandeis biographer Lewis Paper holds a contrarian view. He suggests that Brandeis used the “Lou-ee” among close acquaintances and that he used “Lou-is” in formal and professional situations. One can understand his reluctance to accept what seems like unimpeachable evidence. Nowadays the name “Lou-ee” seems more appropriate for a pool hustler than a Supreme Court justice. But, not only is there no historical evidence for this dual pronunciation, I would argue that there is plenty of circumstantial evidence against it.

First of all, there is Brandeis’s uncle Lewis Dembitz. Dembitz’s first name was originally Ludwig, but once he emigrated to America, he anglicized it to Lewis. Lewis is clearly pronounced “Lou-is.” If Brandeis’s parents wanted their son’s name to be pronounced “Lou-is” surely they would have spelled it the same as his uncle’s.

Secondly, Brandeis is the only one of his siblings to have been born in Louisville, Kentucky. There is no evidence to back this up, but I have have always felt that he was given the name Louis in honor of their new home. And as natives from the city are quick to point out, the city’s name is pronounced “Lou-ee-ville,” not “Lou-is-ville.”

And for a final bit of evidence, we can look to, of all places, HBO’s comedy Veep (or for you classicists out there, Seinfeld). Actress Julia Louis-Dreyfus has always had to tell people, her name is pronounced “Lou-ee-Dreyfus” not “Lou-is-Dreyfus.” As she explained in an interview once, “It’s a French thing.” That is why Louisville is pronounced the way it is; it is named after the French king Louis XVI. And Brandeis’s parents were cultured people, and the idea of 19th century cultured people giving their children names with French pronunciation is not that extreme.

But what about those YouTube robots? Should artificial intelligence finally be considered more accurate than human intelligence? Apparently not. Not only do they mis-pronounce Louis but they can’t even pronounce Brandeis right.


October 9, 2016 is the 100th anniversary of Louis D. Brandeis’s first day on the Supreme Court. To help celebrate the anniversary, Laura Rothstein has published on SSRN an expanded version of her post on this blog about Michael H. Roffer’s The Law Book, which is a compilation of 250 legal milestones from history. In her original post, she discussed the milestones Brandeis was directly responsible for as well as the many others that were the result of his influence. Rothstein’s new article uses The Law Book as a starting point to discuss the ten issues Brandeis is best known for and how his influence in these areas continues to shape the world today. It’s a great article for people looking to see just how pervasive Brandeis’s ideas are.


Louis D. Brandeis had four grandchildren, three of whom are still alive. Alice Popkin and Frank Gilbert were the children of Brandeis’s daughter Susan and her husband Jack Gilbert. (Their eldest brother, Louis Brandeis Gilbert, died in 2002.) Walter Raushenbush was the son of Brandeis’s daughter Elizabeth and her husband Paul Raushenbush. While on the Supreme Court, Brandeis would spend his summers in a cottage in Chatham, Massachusetts, and often his daughters and their children would join him there. The children spent all their time together, swimming, playing cards, and even publishing their own newspaper called the Chatham Chatter.

Even though the Chatham Chatter ceased publication in 1942, it made the news recently when Frank Gilbert discovered a complete set of the newspaper’s issues while cleaning out a storage unit. He donated the issues to the Chatham Historical Society, which inspired a write up in the Cape Cod Chronicle. The article is a charming look at what sounds like an idyllic childhood.

Speaking donations of donations from the grandchildren, I recently came across this story about the library at Brandeis University and their collection of Brandeis’s personal effects.

And speaking of Brandeis University, Frank Gilbert has also made the news in his own right: he was awarded an honorary degree from Brandeis during their May 2016 commencement.


As interested as I am in Louis D. Brandeis’s uncle, Lewis Dembitz, I was quite happy when I ran into a recent article in the Jewish Telegraphic Agency about his great-granddaughter Shoshana Dembitz and her recent marriage to her partner of 18 years, Abigail Grafton.

As interesting as the marriage is, I was more intrigued by the account of Ms. Dembitz’s life. Her father, named like his grandfather, Lewis N. Dembitz, worked at the Federal Reserve System. Her mother, Florence de Haas, was the daughter of Jacob de Haas, the man who introduced Brandeis to Zionism and who wrote the first biography of Brandeis. She was an attorney, who, like Brandeis, appeared often before the Interstate Commerce Commission. Apparently, she later worked as a civil rights attorney until her career was derailed by accusations of communist affiliations. Shoshana seems to have spent her life working  for progressive and Jewish causes. She founded a non-profit elementary school, a community credit union, as well as a couple Jewish communities. It would appear that she has inherited her great-grandfather’s sense of commitment towards public service as well as his devotion to his faith.

Abigail Grafton does not appear to be a slouch either. In the sixties, she was active in civil rights and anti-war protests and lived in an anarchists’ collective. She later became a psychotherapist and founded the Sonoma Institute, which according to the article, “trained therapists with a feminist slant.” In the last paragraph of the article, Grafton identified with people who are “conscientious objectors and shit disturbers.” That description sounds like it could apply to Dembitz and Grafton as well.

Mazel tov Shoshana and Abigail!