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Tikkun OlamA Mother’s Day Eulogy for Frederika Dembitz Brandeis

Paul D. Carrington � Sarah Berger

ouis Dembitz Brandeis remains formany of us not merely a hero, but a para-digm of what an American lawyer and

judge should be. The traits qualifying him forthis elevated position in the history of Ameri-can law were at least in signiÕcant part theconsequence of the sustained and enduringinÔuence of his mother. For that reason, wepropose to dedicate Mother’s Day 2001 to hermemory. We believe this to be a Õt sequel tolast year’s remembrance in these pages of Mar-garet Walker Wythe.1

To make our point regarding FrederikaBrandeis, we Õrst advert to her son. He was avery, very smart man. He graduated from lawschool at so tender an age that special action ofthe governing board of Harvard Universitywas required before the Law School couldgrant him a degree. Yet he had astonished hislaw teachers with both the care and the thor-

oughness of his examination papers and theprudence of his contribution to case discus-sion. Repeated eÖorts were made to recruithim to the Harvard Law faculty.

In part because Louis Brandeis was very,very smart, he was also a very, very successfulBoston lawyer. He was extraordinarily quickto assimilate the details of events and rela-tions; he manifested exceptional vision regard-ing the secondary and tertiary consequences ofproposed actions; and he also exhibitedextraordinary moral courage in telling clientswhat they ought to hear, like it or not. Forthese reasons, a very high value was placed onhis counsel. He was a “rainmaker” supreme.Accordingly, he earned a very large income.

Yet Brandeis was also a very, very morallawyer dedicated to the welfare of his city,state, and nation. Holmes later described himas a man of “exquisite moral susceptibility.” He

1 Paul D. Carrington & Laura Kelley, A Mother’s Day Eulogy for Margaret Walker Wythe, 3 GreenBag 2d 255 (2000).

Paul Carrington is the Chadwick Professor of Law, Duke University and the author of Stewards of Democracy:Law as a Public Profession (1999). A chapter of that work is devoted to Brandeis and identiÕes him with theJacksonian legal transition. Sarah Berger is a member of the Duke Law Class of 2002. She is a native ofLouisville, Kentucky and a graduate of Brandeis University.

L

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advised his business clients to share his dedi-cation to the public good and he declined torepresent those he deemed to be predators.

His morality as a citizen was repeatedlydemonstrated in his frequent advocacy of pub-lic causes. Pro bono, he aggressively resisted“special interest” lobbying in the Massachu-setts legislature. Pro bono, he resolved an insur-ance scandal by drafting a law authorizingsavings banks to write life insurance and thenlobbying to secure its enactment. Pro bono,over a period of seven years in diverse forums,he successfully attacked the proposed mergerof the New Haven Railroad with the Boston& Maine. Pro bono, he joined in creating anorganization that lobbied in many states forindustrial accident compensation and otherlegal protections of workers. Pro bono, hedefended in the Supreme Court the Oregonlaw limiting the working hours of women andin doing so invented the “Brandeis brief ” pro-viding the Court with the available social andeconomic data justifying the statute. Pro bono,he served as the architect of President Wil-son’s New Freedom, strengthening antitrustlaws, exempting labor unions from their appli-cation, and creating the Federal Trade Com-mission and the Federal Reserve Bank. In allthese activities, he shared the Jacksonian senti-ments of those who denounced “the privilege-seeking and favor-seeking classes.”2

Despite his impressive earnings, Brandeiswas indiÖerent to personal wealth. When apartner suggested that he could earn moremoney for their Õrm if he spent less timeassailing the New Haven Railroad, he insistedon paying the Õrm an amount equal to thevalue of the time he had invested in the cause,thus setting a standard of commitment to hispartners that few doers of good have sinceequaled. He invested exclusively in govern-ment bonds but lived so modestly that he

accumulated a very large estate.When Brandeis was nominated for the

Court in 1916, Wall Street was said to “groanlike the echo of a national disaster.” Six Presi-dents of the American Bar AssociationtestiÕed against his conÕrmation; typical oftheir reasons was that his presentation of the“Brandeis” brief exhibited a fundamentalmisperception of the law in its disrespect forits majestic independence from morality andpolitics. Nevertheless, he soon won recogni-tion on all sides as a Justice greatly to beadmired for his attention to facts and hisstern self-control. He was quick to see inhimself as well his colleagues the urge todeploy power to impose one’s personal viewof moral propriety on others, and he wastherefore perhaps the most consistent advo-cate of judicial self-restraint ever to sit on theCourt. He opposed Chief Justice Taft’s planfor a new courthouse, likening it to the Tem-ple of Karnak, and, expressing concern thatso pretentious a structure would overinÔatethe egos of the Justices, he refused to occupychambers in that building.

In all these respects, Louis Brandeis was atruly extraordinary man for whom it wasentirely Õtting to name both a university inMassachusetts and the law school at the Uni-versity of Louisville. But also, in all theserespects, he was his mother’s boy, and that isour point. Frederika Dembitz Brandeis was anequally extraordinary woman.

Frederika was born and raised in Prague bya family that was part of an Austrian-Jewishsect distinguished by the belief that one of itsmembers was in fact the Messiah. Her clanwas thus a minority within a Jewish commu-nity that was itself a minority within theCzech community in Austria. Politically, theclan supported the unsuccessful revolutions of1848 that aimed to replace European plutocra-

2 The phrase comes from the Democratic Party platform of 1912, which he may have had a hand indrafting.

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cies with democratic governments. Embattled,they moved as a group to Indiana, bringingwith them many trunkloads of books and twogrand pianos.

Frederika was then twenty years old. Shewas regarded as an exceptionally beautifulwoman. Having lost her mother,she took it upon herself to raiseher younger brother. In America,she soon married another mem-ber of the clan, Adolph Brandeis,and they settled in Louisvillewhere he started a grain business.Like many immigrants, theywere soon passionately attachedto their new country and to theAmerican Creed stated in theDeclaration of Independence.They were ardent abolitionistsliving in a slave state.

Frederika was Ôuent inFrench and German, and couldread the classics in Latin andGreek. She could recite muchof the work of the poet Schillerand was a close student ofGoethe; she therefore intro-duced her children to thoseauthors at an early age, in lieuof any exposure to literaturewritten for children. On herviolin, she introduced her chil-dren to Beethoven and Mozart.She was also competent as apoet, a dancer, and a dramatist,performing in all of those arts for her chil-dren and neighbors. She was intensely inter-ested in politics and world aÖairs. Dinnerdiscussions at her table were conducted inGerman, and were exclusively devoted toworld aÖairs, the arts, and whatever her chil-dren had been reading.

Frederika did not observe the ceremonies of

Judaism and did not instruct her children inthe Jewish faith. She aÓrmed to them “that sincannot be expiated by going to divine service”and advised that “only goodness and truth andconduct that is humane and self-sacriÕcingtowards those who need us can bring God

nearer to us, and that our errors can only beatoned by our acting in a more kindly spirit.Love, virtue, and truth are the foundationupon which the education of children must bebased. They endure forever.”3

Despite her rejection of the formalities ofJudaism, her aÓrmations were a reÔection of aspirit extolled by the Jewish faith as tikkun

3 Reminiscences of Frederika Dembitz Brandeis 32.

Frederika BrandeisFrederika BrandeisFrederika BrandeisFrederika BrandeisCourtesy Special Collections, Brandeis University Libraries.

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olam, meaning “healing the world.” As MarcGalanter has observed, her eclectic form ofJudaism “had a formulation of going beyondthe outer shell of the commentators on theTalmud to give Judaism a higher and broadersigniÕcance by striving to perfect the world.”4

Frederika later explained to her childrenthat she had raised them without religiousbelief because she “wanted to give them some-thing that neither could be argued away norwould have to be given up as untenable,namely, a pure spirit and the highest ideals asto morals and love.” Louis adhered to her reli-gious teachings. He was never an observantJew and his wife even became a Unitarian. Hewas, however, active in the Zionist movementbecause he perceived the Israeli kibbutzim (theirsmall farming communities) to be models forthe communitarian life style that he believed tobe the best source of human happiness and the

spirit of tikkun olam.Frederika’s maternal eÖorts were not with-

out reward. Louis wrote her almost every dayof her life after he left home to attend lawschool. It is heartening to imagine her reactionto the second birthday greeting she receivedfrom him in 1888. It read:

I must send you another birthday greeting andtell you how much I love you, that with eachday I learn to extol your love and your worthmore – and that when I look back over my life,I can Õnd nothing in your treatment of me thatI would alter. You often said, dearest mother,that I Õnd fault – but I always told youcandidly that I felt and sought to change onlythat little which appeared to me to be possibleof improvement. I believe, most belovedmother, that the improvement of the world,reform, can only arise when mothers like youare increased thousands of times and havemore children.5 B

4 A Vocation for Law? American Jewish Lawyers and Their Antecedents, 26 Fordham Urban L.J. 1132,1133 (1999).

5 1 Letters of Louis D. Brandeis 75 (Melvin Urofsky & David W. Levy eds., New York 1971).

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