In the midst of the Court-packing fight, Drew Pearson and Robert Allen published Nine Old Men at the Crossroads, an attack on the Court for being out of touch with the reality of Depression-era America. A friend of Brandeis’s asked whether he had read the book, and he replied, “Oh, no, there are some things in it that Mrs. Brandeis tells me I should not know.” In fact, little that happened in Washington in the 1930s escaped Brandeis’s notice, and neither did the worsening international conditions, especially as they affected Palestine and the Jews of Germany.
BRANDEIS LEARNED MUCH about politics and the workings of the government from his contacts with people like Felix Frankfurter and cabinet secretaries and from his access to the president. He perhaps learned even more from the Monday teas he and Alice hosted in their California Street apartment and from the dinners they gave. Hundreds of people came to talk to him, to discuss their problems, and to hear his advice. At the teas a visitor could find Supreme Court justices, members of regulatory commissions, such as William O. Douglas of the SEC and James Landis of the FTC, congressmen and senators, young lawyers whom Frankfurter had sent down to work in the New Deal, visitors from Palestine, and old friends. The Danish ambassador came often. Brandeis, a great admirer of Denmark’s social democracy, would tell people, “Why visit Russia when you can go to Denmark?”
People in town for just a few days would call, and if the justice was free, he would invite them over to talk, especially the young law professors from Harvard. Sheldon Glueck, who became one of the nation’s leading criminologists, often dropped in, but one time he had to write a note apologizing for his twelve-year-old daughter, Joyce, who had been visiting relatives in Washington. The girl had heard so much from her father about Brandeis that she insisted her aunt call up his office so she could go over to see him. When Brandeis’s law clerk answered and said the justice was busy, Joyce “strongly insisted upon her inalienable right” to see him. “Justice Brandeis ought never to be too busy to see a nice little girl!” Unfortunately, we do not know if she succeeded in her quest.
Charles E. Wyzanski Jr., a Harvard Law graduate and clerk to Learned Hand, had come to Washington as the solicitor for the Department of Labor. Because of the interest Brandeis had in his work, Wyzanski was a frequent visitor both in Washington and in Chatham, and left this portrait:
Were you to see the Justice in his home, there you would find no display of wealth or elegance. He himself would probably be wearing the dark blue serge suit that annually he bought by mail from Filene’s Boston store. If he were in his apartment at Florence Court, the furniture would be typified by a green sofa with a long stiff back which perhaps began its career in a shipment from a Victorian store to Otis Place in Boston. On the wall was a photographic reproduction of the statue of Venus de Milo. If you were allowed to go to a floor above, to his crowded study, the surrounding books were law reports from the federal and Massachusetts courts, and a collection of albums filled with clippings….
You might be invited to the Justice’s summer cottage at Chatham for an hour’s visit strictly clocked by Mrs. Brandeis. If possible, there were even fewer signs of luxury there than on California Street in Washington. Some books were placed not on shelves but in packing cases. And on the wall were framed not famous etchings or impressionist paintings but something far more revealing: a legal instrument—a contract executed several decades before in which Mr. Brandeis agreed to pay to each of his daughters an allowance of five cents each week and they in turn agreed to polish his shoes, all on the understanding that “there are no catchwords in this contract.”
The stories of the teas and dinners are legion and appear to have left an indelible memory with those who attended. At tea, Alice, assisted by Poindexter and that year’s clerk, would make sure that no one person took up too much of her husband’s time. One, of course, did not come to the Brandeis home to eat; Mrs. Brandeis served tea and gingersnaps, and nothing else. According to a number of people, the man with the great white shock of hair whom many considered a legend had the knack of putting people at ease within a few minutes. He would be glad to answer their questions, but always prefaced his comments with “Assuming there are no constitutional or other legal questions….”
One time a young woman commented on a case in a lower federal court that had been in the newspapers that morning and, unaware of the proprieties, asked Brandeis if he thought the case had been decided correctly. Everyone present suddenly went silent, and as one person put it, the only question was whether she would be hanged or boiled alive. Instead, Brandeis smiled tolerantly and replied, “Madam, I think you should refer your question to a good lawyer.” Immediately the tension dissipated. Brandeis had turned the joke on himself by implying that a “good lawyer” could give a better opinion than he could, and yet informed the lady of her indiscretion.
The Brandeises valued conversation, and their Monday afternoons may have been the best political salon in America during the 1920s and 1930s. Stanley Reed, later to be a colleague on the Supreme Court, had come to Washington as general counsel to the Reconstruction Finance Corporation, an agency mandated to loan money to private business. The invitation to visit Brandeis never meant a “Hello, glad to see you, good-bye,” but rather a chance to sit for an hour or two talking to fifteen or twenty other people, learning from them, and, of course, getting advice from the justice. If a particular agency had been in the news recently, the commissioner as well as the general counsel often wound up on California Street the following Monday. There might be a librarian from the Labor Department who had been helpful in some research or some young people from the Brookings Institution. If a congressman or senator made a speech with which Brandeis agreed, he would be invited, in his clerk’s phrase, as a “tacit laying on of hands.” All of the justices except McReynolds and Butler came over, but no one discussed Court business.
Each year Brandeis would invite over Andrew Furuseth, the grand old man of the seamen’s union, and then ask him to tell his clerk and the other young people there why he had gone to sea. “Well,” Furuseth would answer in his accented English, “I had this great delusion that I could be a free man.” Brandeis would then sit back while Furuseth told harrowing tales of the treatment accorded to seamen prior to the passage of the La Follette Act.
Above all, Brandeis wanted to talk with young people, to learn their ideals, why they had come to Washington, and what they hoped to do with the rest of their lives. Walter Gellhorn, a Columbia Law graduate clerking with Justice Stone, went to see Brandeis one afternoon and discovered that the Brandeis family of Louisville had long known the Gellhorns in St. Louis. During the year, Gellhorn returned frequently, often as a guest for dinner. Brandeis knew that Gellhorn shared an apartment with his own clerk, Henry Hart, and asked Hart one day if he knew what Gellhorn planned at the end of the year. Hart told him that Gellhorn had an offer from the big New York law firm of Sullivan & Cromwell. “Tell him to come see me as soon as he can get free.” Hart called Gellhorn, relayed the message and its sense of urgency, and Gellhorn came over later that day.
Why, Brandeis wanted to know, did Gellhorn want to go to Sullivan & Cromwell? Well, he replied, he wanted to be independent, and he believed that meant he had to be economically independent. “Walter, a man is not independent according to what he makes,” the justice said. “He’s independent according to what he spends.” He then told the young man a story about when he had been leading some reform campaigns in Boston, and in the middle of the night men came to him who were the heads of large corporations, some making $100,000 or more, and they gave him large sums of cash to be used in his fight against the New Haven or for savings bank insurance but under a pledge of secrecy, because if it became known that they supported Brandeis, they might lose their positions. “These men couldn’t afford to lose their positions,” Brandeis explained, “because they were spending close to what they were making and any loss of income for them would have meant destruction. Mrs. Brandeis and I talked this over and we decided that I could always be sure of making at least a moderate income, and so we would live moderately, no matter what income I happened to be making. And so we did.” The young man thought about this and decided not to go with the New York law firm; he joined the faculty of Columbia University and became a noted scholar in administrative law as well as a champion of civil rights.
Dinners at the Brandeises’ lasted longer than the teas and had fewer people, but the emphasis remained on ideas, stimulating conversation, and idealistic encouragement to younger people. There was not a great deal of food. When you went to dinner at the Brandeis home, Alger Hiss recalled, “you seldom got enough to eat. What you were served was tasty but sparing portions because he himself ate sparingly…. It wasn’t a matter of parsimony. It was just a matter of Spartan tastes.” At ten o’clock the justice would rise, a sign to everyone that the evening had ended. Poindexter and the clerk would have the job of making sure that no one lingered to talk; Brandeis needed his sleep before rising to work at five o’clock.
Brandeis also urged the young men to leave Washington after their stint in government and, instead of going to New York, to go back home. He wanted Walter Gellhorn to go back to St. Louis, and in fact Roger Baldwin, later the founder of the American Civil Liberties Union, had started his career in the Midwest because of Brandeis’s advice. When Willard Hurst considered leaving Wisconsin for Yale, Brandeis dissuaded him from doing so. To some extent he believed that the young men who had worked in Washington owed it to their hometowns to go back there, settle in, and work for the betterment of the community. He feared that the brilliant young law graduates who came down from Harvard, Columbia, and elsewhere would get in a rut, stay in the nation’s capital, and die there. They might have successful careers, but they would have missed the opportunity to take their Washington experience and use it for the benefit of smaller communities in the Midwest and elsewhere. While he never disparaged Susan for choosing to practice law in New York (because it would have been difficult indeed for her to have gone back to Boston), he rejoiced that Paul and Elizabeth had chosen Madison, and in the work they did there.
Brandeis did not always appreciate that smaller communities did not have all of the resources available that bright young people might need in their work. His law clerk David Riesman took to heart the justice’s suggestion that he go to a smaller law school and accepted a position at the University of Buffalo. There he started work on the law of libel, but, as he told Brandeis, “I am particularly hampered by the [poor] library situation here—one of the factors, incidentally, which militates against your repeated wish to see bright young men go out to the small communities.”
BRANDEIS MAINTAINED many of the activities and interests he had cultivated throughout his life. Although he eschewed modern fiction, he continued to read widely and would often return to some book or author that he had enjoyed years earlier, especially Goethe. “Whenever one returns to Goethe,” he told his sister-in-law, “there are new revelations.” His interest in the ancient Greeks remained unabated, although unlike Holmes he did not read them in the original. Through his niece Fannie, he kept his eye on developments at the University of Louisville, sending checks to cover particular outlays such as indexing or binding and urging the administration to build up the law school.
Alice, Louis, and their grandchildren, late 1930s
He continued to provide $3,500 a year to underwrite Felix Frankfurter’s public service and kept up suggestions for articles by Frankfurter’s students. He also corresponded with historians and helped promote work in early American legal history, a subject in which he had long been interested and which he would occasionally use in his opinions. Frankfurter continued to send a bright young Harvard man down each fall; in 1934, however, Brandeis told his cousin, somewhat in amazement, that he had taken a Yale graduate for his clerk, although Nathaniel Nathanson, the editor of the Yale Law Review, by then had a year of seasoning as a research fellow at Harvard and another year as Judge Mack’s secretary.
In 1936 the occasion of his eightieth birthday led to a torrent of congratulatory messages. “You have built your ideals into the hearts of your countrymen,” William Allen White declared, and your work will be “an inspiration to youth and a comfort to all who love freedom institutionalized into law.” Because even at age eighty Brandeis believed that he should answer his mail personally, he wrote dozens, perhaps hundreds, of short notes, and complained to his son-in-law that it would be well into 1937 before he caught up. “It is fortunate that one reaches 80 only once.” He wondered what all the fuss was about, since a man of eighty in public life “might indifferently be made the courting stock for all to practice on.”
Although Alice declared that her husband “moves along each day as you have known him to do these many years,” Brandeis no doubt became aware of his own mortality as people very near to him died during the decade. In April 1934 his former secretary and longtime ally in the fight for savings bank insurance, Alice Harriet Grady, passed away. As always aware of his sense of privacy, she left instructions that her correspondence with the justice should be destroyed, but before carrying out that wish, her brother Talmage Grady thought it best to have Brandeis look through the files. While destroying all that he considered confidential, he kept any documents he thought might be worthwhile to have for the records and sent them over to the Savings Bank Insurance League.
The death of Holmes came in March 1935, ending a friendship of nearly sixty years, and then, at the end of March 1937, his “teacher in Zionism” Jacob de Haas died. Although de Haas had managed to alienate many people in the Zionist movement, he never lost Brandeis’s confidence. Throughout the 1920s and 1930s, Brandeis arranged for de Haas to have work, often providing the funds himself, and when de Haas came down with his terminal illness, Brandeis paid the hospital bills. To the end Brandeis remained loyal to de Haas, declaring that “he served the Jewish People throughout long years, to the best of his ability.”
The following month Norman Hapgood died, and later that year Elizabeth Evans, after a long illness, passed away, much to the sorrow of both Alice and Louis. Auntie B. had been Alice’s closest friend, and just as her husband could talk confidentially with Felix Frankfurter, so Alice could unburden herself to Bess Evans, who had been like a sister to her from the day they met. Hers was “a great life,” he told Frankfurter, but when the Harvard professor asked for some message to read at her funeral, Brandeis could not do it. She was so much a member of the family, he said, it would be better that “what is to be said of her should be said by others.”
WHATEVER OTHER PROBLEMS afflicted the country or mankind, Louis and Alice reveled in their roles as grandparents. In December 1930, Susan gave birth to her third child, Frank, and Alice, after having had two daughters, especially enjoyed the idea of three grandsons. Although they occasionally saw them during the Court term, the grandchildren now played a major role during the months at Chatham. Susan and Jack bought some property adjacent to her parents’ home and built a house there. During the summer Jack worked in the city, coming up for weekends and an occasional longer vacation. Susan tended to take more time off from work, and her children ran freely between their home and that of their grandparents. Both houses had guest rooms for when Elizabeth, Paul, and Walter came.
Louis and Alice brought the children into their pastimes, canoeing, hiking, looking for wildflowers, and picking berries. When they had a question about anything, Louis would repeat the same ritual he had practiced when Susan and Elizabeth were young—send them to the encyclopedia or dictionary to look up the answers. Susan introduced them to tennis, and one summer bought a small boat to teach her children how to sail. Louis would occasionally write to his son-in-law reporting on the family and its doings. “Your family was on full exhibit yesterday and never in better form,” he said. The older children had accompanied Alice on a visit to a neighbor, Mrs. Butler, and their behavior had been “exemplary.” Then young Louis came over to entertain his grandfather for a while.
Brandeis fussed over the children when they caught colds, and recommended to Elizabeth and Paul as well as to Susan and Jack that they adopt a tried-and-true formula he had used for years—avoid drafts, wear rubbers, and apply a patent medicine called “V.E.M.” morning and evening. “It’s cheap at the price.” As the grandchildren learned to write, he exchanged letters with them, and in much the same way he had written to his own girls four decades earlier. “Dear Walter: I was very glad to get your letter written in ink. I hope your bird-house is finished. Do you like this one? I hope the cat won’t eat the bird.” Bess Evans, a frequent houseguest in Chatham, became Auntie B. to another generation of Brandeis children, who wrote to her when they returned home. “I get the most adorable letters from your little grands,” she told Alice. “Walter writes me that the longest word he can write is thanksgiving.”
Much of the enjoyment in their grandchildren resulted, at least in part, from the fact that during the 1930s Alice and Louis enjoyed relatively good health. There were no more bouts of deep depression, and Louis described his wife as “energetic and joyous—quite her old self.” Alice was not, however, immune to aging, and occasionally suffered the physical distress that accompanied it. “My legs have been troublesome,” she told Mrs. Evans. “Bodies are such stupid and uninteresting things; I try not to notice mine.” Louis in turn, although seeming frailer, continued to canoe and hike and to work at a steady pace.
They transferred additional wealth to their children on a regular basis, wanting them to be able to do as they had done, support causes they believed in strongly, and in February 1932 they set up a school fund for their grandchildren. They also helped out substantially when Susan and Jack ran into financial troubles in the middle of the decade. The Gilberts had high household expenses that included hired help and a nanny, since Susan continued to work. But the Depression reduced their legal business significantly, and, thinking that the loss of business would just be temporary, they borrowed some money to tide them over. Business did not pick up, and when Brandeis learned of this, he insisted on sending them money both to pay expenses and to satisfy their loans. He was more than happy to do this, he told them, “for I think it very unwise for either of you to borrow a penny from anyone.”
There was never a word of reproach, save for one letter to his son-in-law, who apparently complained that he had been unable to secure the big break that would make his practice successful, as his father-in-law had done years earlier. Brandeis chided him on this philosophy, saying that his own practice ought not to be a model for anyone. “I hope nothing I have ever said indicated a desire that you and Susan should adopt in either your professional or personal lives, views or standards on which I act now or acted when of your age,” he said. “No one is a stronger believer in the sanctity of each individual’s choice.”
He had always believed in Jack’s legal ability, character, and willingness to work hard, which, when applied to his practice, should give him “a reasonable net income adequate to keep you from financial worry.” Success could be achieved not by “adventurous strokes, but by the humdrum life—remaining at one’s post and keeping down fixed charges.” That is how one built up a law business, and he said this based on six decades as an observer of the lives of practicing lawyers.
But even if they had business problems, Brandeis approved of what his children and their spouses were doing with their lives. Susan and Jack became interested in Zionism, and Susan began a long tenure as a member of the New York Board of Regents, the body charged with oversight of all public education in the state. In Wisconsin both Elizabeth and Paul not only taught at the university but also were active in helping the state develop its social insurance programs, and Paul became a frequent visitor to Washington to work with the Social Security Administration. Much to the Brandeises’ amusement and satisfaction, they heard Elizabeth described as “a real rabble-rouser” for speeches she gave on the state’s social insurance plan. “Isn’t that a grand name?” Alice asked Bess.
UNFORTUNATELY, aside from his grandchildren, little in the 1930s pleased Brandeis, especially news relating to Jewish affairs. Hope that the Brandeis faction would reinvigorate the ZOA soon withered in the realization that the Depression made it impossible either to raise funds or to launch new programs. In October 1930 the Passfield White Paper marked the beginning of a wholesale repudiation of the Balfour pledge, and despite strong Zionist objections Great Britain practically closed the doors of Palestine to further Jewish immigration in 1939. The betrayal of the terms of the mandate would have been a severe blow to Zionist hopes at any time, but the rise of Adolf Hitler in Germany and his plans to cleanse Germany and ultimately Europe of Jews meant that hundreds of thousands of Jews who might have found a haven in Palestine met their deaths in the gas chambers of Auschwitz and the other death camps. Ironically, the growing threat of Nazism led American Jews to return to Zionism in droves toward the end of the decade.
Brandeis kept in close touch with Robert Szold, Stephen Wise, and the other men who took over the ZOA administration, but even he realized the difficulty of the task without men, money, or discipline. They inherited an organization with $8 in its treasury and then had to borrow $20,000 just to pay overhead expenses during their first three months in office. Of the $100,000 pledged at the convention to help pay debts, less than one-third actually materialized. At the end of two years, membership had dropped to 8,800, despite a 50 percent dues reduction. (In 1933, $6 could easily feed a family of four for a week.) The New Palestine disappeared, replaced by an occasional newsletter. Even Hadassah lost membership, from 35,000 to 20,500, but remained in far better shape than the ZOA. About the only positive note Szold could point to was a $20,000 reduction in debt, a not insignificant feat considering the times.
Had the Brandeis group been concerned only with American Zionist affairs, the condition of the ZOA would have been sad but not serious, in that one could expect the organization to rebound as the country came out of the Depression. But the ZOA, and indeed the World Zionist Organization, stood ill prepared to confront the shift in British policy in the Middle East and the rise of fascism in Germany.
Great Britain found the realities of the Middle East far more complex than it had anticipated. The sheer number of Arabs in the region compared with Jews, as well as the great oil reserves in Arab land, led to a reorientation of British policy around the concept of an Arab-dominated region under English tutelage. This idea had been pushed by Foreign Office careerists who considered the wartime pledges a mistake and who found the Jews irksome. Norman Bentwich, the attorney general of Palestine during this period, commented that the Jewish settlers and British colonial officers seemed to speak different languages. The Jews did not behave like the native Arabs; instead of obeying the orders of British officials, the Jews argued.
Nazi rally in Nuremburg, 1934
With very few exceptions, Zionists did not understand Arab nationalism and severely underestimated its strength. Brandeis had the same blind spot as did Weizmann, Lipsky, and other Zionist leaders. Following the 1929 riots, which left 125 dead, he wrote: “As against the Bedouins, our pioneers are in a position not unlike the American settlers against the Indians. I saw myself the need of their self-defense in 1919 in Poreah, with our Shomer [watchman] mounted on the hill top, and the blacktented Bedouins who had peaceably but with ever robber purpose, crossed the Jordan. As to other Arabs, the position is not different in essence, of course. Most Arabs will have guns, or at least knives, concealed, if possession is prohibited.” Brandeis saw neither Indians nor Arabs as native people with prior attachments to and rights in the land.
He did not understand why Arabs did not welcome Jews, since they, too, would benefit from the economic growth and progress that the Jews would bring. At a meeting in November 1929 to review what should be done, Brandeis predicted:
When the recent disorders shall have been overcome the work which has been done by the Jews for Arabs will be appreciated. Through our medical organizations, through the elimination of malaria and other diseases, we have done, the amelioration of the condition of the Arabs, an extraordinary amount, considering the shortness of time. Arabs, unlike some other peoples, have no inherent dislike of the Jews—certainly they did not have it. Jews lived among them in perfect amity before and during the war. I have confidence they will again do so.
In this area at least, the prophet erred badly.
Brandeis, even though out of power at this time, did what he could in the battle against the white paper. With his encouragement, Stephen Wise and Jacob de Haas compiled a list of statements of government documents issued by prior British administrations, proving that the Balfour Declaration and the mandate specifically promised Palestine to the Jews. Felix Frankfurter, who had more or less dropped out of Zionist affairs in the 1920s, came back and contributed an article on Albion’s perfidy in the influential journal Foreign Affairs.
The justice and Frankfurter also contacted their common friend the English political theorist Harold Laski, pressing him to get information about England’s intentions. Then suddenly, in late November 1930, Brandeis had an entráe to His Majesty’s Government. Prime Minister Ramsay MacDonald had come under increasing attack for the Passfield White Paper, and he called in Laski to see if some sort of agreement could be worked out between the government and the Zionists. Laski thought that the two sides could each compromise, but Brandeis refused to do so and insisted that the British live up to their word. “Our rights legal and moral, seem clear,” he told Bernard Flexner, then in London and serving as a conduit to Laski. “We shall succeed, provided we make sure that no part of our rights is frittered away by concession.”
Louis, Alice, and Zionist leaders at Chatham, ca.1940
This obstinacy, along with the public outcry, gave Weizmann the leverage he needed in his talks with the government and forced Mac-Donald to back down from the severe strictures of the white paper. On 13 February 1931 the prime minister issued a letter that would “remove certain misconceptions and misunderstandings” with regard to British policy in Palestine. In essence, he repudiated the anti-Zionist passages of the Passfield statement and praised the Jewish work to rebuild Palestine. Immigration would be encouraged, limited only by the ability of the land to absorb people.
The victory, however, proved only temporary. The spirit behind the white paper, the desire of the British government to appease both Nazis and Arabs, and the anti-Zionism and anti-Semitism rampant in the Foreign Office would triumph before the decade ended.
FEW PEOPLE at first took seriously the rise of Adolf Hitler and Nazism. After all, the man must be crazy, and only the most rabid Jew hater could applaud his demagoguery. Even Charlie Chaplin’s later caricature of him in The Great Dictator could not convey the sense of burlesque that he himself generated. A study of editorial attitudes in America’s most influential newspapers found a range of response from concern to disbelief that anyone would pay this lunatic any attention at all. Jewish journals, of course, could not ignore any anti-Semitism, but they, too, vacillated in their response. German Jews also failed to show much concern at this time. Very few of them emigrated from Germany in the early years of the Hitler regime, and in fact German refugees did not use up that country’s annual quota for entry into the United States until 1938. Martin Rosenblüth, a German Zionist who tried to warn Jew and non-Jew alike of the Nazi menace, found that no one would listen to him.
In 1931, before Hitler came to power, Felix Frankfurter received papers about Nazi ventures in Bavaria and the riots caused by the Brown Shirts. He sent them on to Stephen Wise, who from that time on kept an eye on German affairs and became the first, and for a long time the lone, American Jewish leader to warn against fascism. He kept Brandeis informed, and the justice, who also took German matters seriously, received a great deal of information about affairs in Nazi Germany from a variety of sources, including the State Department.
One day his clerk picked up the phone, and Raymond Moley told him that he understood the justice wanted to see Secretary of State Cordell Hull, and the secretary would be happy to call on him at Brandeis’s convenience. Paul Freund said he would check and call Moley back. “No, that’s wrong,” Brandeis said, “it’s not I who want to see Secretary Hull, it is he who wants to see me.” Protocol had no role here. Rather, from an institutional standpoint, it would not do for a member of the judiciary to involve himself in foreign affairs. “I will see the Secretary at his convenience here in my apartment.” Freund called back and conveyed the message to Moley, who immediately understood Brandeis’s point. “Of course, of course,” Moley said, laughing, “it’s Secretary Hull who wants to see the Justice.” At the appointed time Hull called, and Brandeis told him what he knew about events in Germany. Hull responded that if this were indeed the case, the United States would not be able to stand by idly.
At the beginning of 1933 a wave of anti-Semitic riots spread across Germany just as Hitler took power; in March the Nazis instigated riots in Berlin and other cities and called for a boycott of all Jewish stores and businesses. Finally the leaders of American Jewry paid attention, and the American Jewish Committee and B’nai B’rith invited Wise, as head of the American Jewish Congress, to meet with them. The conference fell apart at once over the same strategy that had plagued Jewish responses during World War I; the committee and B’nai B’rith opposed Wise’s plans for rallies to protest German policy. When he persisted, they brought immense pressure on him to call off a mass meeting at Madison Square Garden in New York, warning him that a public outcry would only bring further harm to German Jews.
Not knowing what to do, Wise sought advice from the one man whom he trusted implicitly—Louis Brandeis. On 13 March 1933, Wise went to Washington and spent over two hours in the justice’s study, telling him about what he had learned, the dangers he foresaw, the fearfulness of other American Jewish leaders in speaking out, and what he saw as the moral need for American Jews to protest. Brandeis listened carefully, asked questions, and at the end told Wise, “Go ahead and make the protest good as you can.” On 27 March more than 22,000 people jammed Madison Square Garden, an additional 30,000 listened to speeches over loudspeakers set up outside, and untold numbers listened in on the radio, including Bess Evans.
Shortly after the rally Wise went to Washington again to lobby congressmen to protest German actions, and he went over to see Brandeis. The justice met him at the door and told him, “You have done a mighty fine job.” Then, in a rare display of emotion, Brandeis took Wise’s hands in his own and said, “You must go on and lead. No one could have done a finer piece of work.” Reinforcing Wise’s own beliefs, Brandeis said there could be no compromise, no negotiations with what he called the “supercautious” establishment Jews; the protest had to continue. A few weeks later, after another attack from the American Jewish Committee, Wise opened his mail to find a one-line message scribbled on Supreme Court notepaper: “Merely to say you are doing ‘splendid.’” Later, Brandeis believed that the Roosevelt administration, then itself new to office, might have been prevailed upon to speak out had it not been for Jews like Max Warburg telling Roosevelt that nothing could be done.
Wise also reported that when he first told Brandeis about German policies in March 1933, a little over a week after Hitler had taken office, the jurist had said, “The Jews must leave Germany!” Wise protested that a half-million Jews could not leave. “It is an impossibility.” Brandeis repeated, “They must leave Germany, and they will. The day must come when Germany shall be Judenfrei and Germany shall see for itself how to live without its Jewish population.” Brandeis did not assent to Hitler’s policy; rather, he believed that no self-respecting Jew could remain within the so-called Third Reich. When Gardner Jackson and his wife went to Europe in the mid-1930s, Brandeis pleaded with them not to visit Germany, because any American dollars spent there supported Hitler’s work.
It must have been difficult for Brandeis to say this, raised as he had been to venerate German culture, to speak its language as a child, to have been sent to school there. There is of course an element of un reality here, the notion that an entire population could just turn its back on its home, and in doing so teach its tormentors how much German Jewry meant to the nation’s culture and prosperity. In fact, between 1933 and 1939 over 300,000 Jews did emigrate from Germany and from the territory it took over before the war, the Czech Sudetenland and Austria, and more than 62,000 of them came to the United States.
(Among these were Betty and Louise Brandeis, second cousins who lived in Vienna. Brandeis swore out an affidavit in May 1938 that he had ample resources and would be willing to sponsor them in the United States so they would not become public charges. The two women arrived in New York in July, where officials of the Hebrew Immigrant Aid Society met them and secured temporary lodgings for them. Brandeis also made contributions to a group organized by his former law clerk David Riesman to rescue academics and find them positions in American universities.)
Brandeis had another destination in mind—Palestine. If even a quarter-million people went to the yishuv, its future would be guaranteed. He had no doubt that hardworking emigrants, people like his father and uncles, would be able to prosper in a new country, and in turn would ensure the success of the Zionist experiment. In fact, some 55,000 German Jews did manage to get to Palestine, and in the early years many of them were able to take at least some of their resources with them to start life anew.
Other persecuted Jews, however, would never get a chance to make aliyah. Even as Nazi persecution increased, Great Britain, despite Mac-Donald’s letter, moved relentlessly toward a policy of restricting immigration. Ironically, as these two threats to the Jewish future grew, the fortunes of the ZOA improved. The American Jewish Committee and the other established German-American groups still clung to what Wise called their “sh-sh” policy, preferring to work quietly behind the scenes, even after it became clear that such tactics did not work. Only the ZOA and the American Jewish Congress spoke out openly, and in the 1930s Zionist membership swelled. It became increasingly difficult for American Jewry to remain silent either to the plight of German refugees or to the needs of Palestine.
The Zionists did not have a problem of entráe to the White House. Felix Frankfurter and Julian Mack, a friend of the president’s from Harvard affairs, both sent Roosevelt information on Nazi depredations. Both men kept Brandeis informed, and Isaiah himself spoke to Roosevelt about the worsening situation. Also, at their request, Roosevelt directed the State Department to provide Zionist leaders with information received about Palestine. What Brandeis, Wise, and the other leaders of the ZOA failed to understand is that the United States at this time could do very little. The American people, or at least those who paid attention to foreign affairs, might express revulsion at Hitler, but the only political issue they cared about was revival of the American economy. Even if Franklin Roosevelt had wanted to have an active foreign policy, he enjoyed little support for it either from Congress or from the American people, both of which grew increasingly isolationist in the early 1930s. And although polite people did not talk about it, anti-Semitism grew significantly in the United States during this time, especially with the prominence of so many Jews in the Roosevelt administration. Fear of adding to this problem led Brandeis to decline an honorary degree from the Hebrew University in 1936, an honor that he had been inclined to accept to highlight the importance of the school in building Palestine. “We must run no risk of raising another groundless ground for Anti-Semitism.”
Both because of his role on the Court and his age, Brandeis in the 1930s became what he had promised when his followers regained leadership of the ZOA—an adviser. He nonetheless followed Jewish affairs closely, received and read reports from the ZOA, and made specific suggestions on particular problems. When Stephen Wise proposed a boycott of German goods after Hitler took power, the justice asked his law clerk if he could get some information on the use of the boycott in America in colonial times. After Roosevelt named Robert Bingham, the owner of Louisville’s Courier-Journal and an old friend of the Brandeis family’s, as ambassador to Great Britain, Bingham asked the justice if, being a Kentuckian, he could have the honor of having Brandeis swear him into office. Brandeis replied that he would be delighted to do so, but after the ceremony spent some forty-five minutes talking to the new ambassador on Palestine and British obligations there.
His interest in Palestine did not falter; if anything, it increased. Visiting Palestinians made their way to Florence Court, where the elderly jurist eagerly listened to their stories and quizzed them on minute details of life on a kibbutz or in the new towns. Brandeis had given $50,000 to help establish a kibbutz that would be populated primarily by Americans. When Shmuel Ben-Zvi, an American who made aliyah and lived on that kibbutz (which had been named Ein Hashofet—”Well of the Judge”—in honor of Brandeis), returned to the United States for a visit, he went to Washington to talk to Brandeis. Brandeis quickly put the younger man at ease, and, Ben-Zvi recalled, “I found myself talking and telling him all kinds of details and stories. I told him about our work, about the members we lost in attacks, relations with the Arabs, cultural life … and the blankets we make out of our own wool.”
Ben-Zvi later expressed amazement at how much Brandeis knew about Palestine in general, and about life on a kibbutz in particular; when Mrs. Brandeis came into the room, Louis asked Ben-Zvi to repeat some of the stories for her. He, of course, wanted to know specific figures about their crops and what percentage of their food and clothing they produced for themselves, and Ben-Zvi promised to send the information to him. When he did, Brandeis wrote back, “Congratulations that you keep such an accurate accountancy.” Ben-Zvi, of course, was an avatar of the type of Jew who Brandeis hoped would make Palestine into the ideal society he envisioned: a university-educated person whose idealism had led him to leave home and settle in a new and challenging place in which one could live simply but in fulfillment of one’s hopes. He derived great satisfaction when two of his cousins on the Dembitz side moved their families to Palestine in 1935, and he exchanged letters with them on the political situation over the next few years, always confident that in the end “our righteous cause must prevail.”
Brandeis also continued to contribute significant amounts of money to Zionist work in Palestine. In 1935, for example, he gave $20,000 toward a project to buy land in the Aqaba region, after the importance of the site had been explained to him by David Ben-Gurion. In Ben-Gurion and in his associate Moshe Shertok, Brandeis correctly saw the future of Zionism, young, smart Palestinians who had already begun supplanting Weizmann’s group. He had great confidence in them, and after Ben-Gurion founded the Haganah, Brandeis secretly provided at least $45,000 to purchase arms so that the settlers could defend themselves against Arab attacks. As early as 1929, Brandeis had declared that Jews in Palestine should not be denied the chance to defend themselves, and when new riots broke out in 1937, he sent an additional $10,000 “to Palestine for disposition as Ben-Gurion may direct, as with earlier remittances.” Once the terrorists were soundly beaten, he believed, arrangements could be made to get along with the other Arabs.
A touchstone of both European and American Zionism had been that Palestine would be the haven to which persecuted Jews could flee, and Brandeis like many Zionists wanted to believe that Great Britain would keep the promise it had made in the Balfour Declaration and validated in accepting the mandate. Between 1933 and 1935, some 134,000 people legally entered Palestine, far beyond what the Colonial Office considered the country’s capacity, yet with their coming the yishuv flourished. Like an oasis amid the worldwide Depression, Palestine prospered—exports and imports rose 50 percent in just two years, the Jewish population grew to 400,000, and 160 agricultural settlements dotted the countryside. Immigration would probably have increased even more had the Colonial Office not imposed restrictions or denied the Jewish Agency for Palestine the number of visas it requested.
Although the Arab population benefited from this prosperity, resentment against the newcomers increased, and in April 1936 isolated attacks on individual Jews escalated into wide-scale rioting. The Arab Higher Committee, led by the mufti of Jerusalem, called for a general strike and encouraged guerrilla bands to attack Jewish settlements. Most ominously, neighboring Arab countries supported the attacks, and the Nazis, recognizing the importance of the Middle East in any future war, established links with the mufti, inviting him to visit Berlin. The British government reacted more firmly than it had in 1929, brought in more troops, and quickly suppressed the riots. His Majesty’s Government also decided to halt further immigration and appointed still another royal commission to study the Palestine problem.
Wise, in London at the time on his way back from Palestine, joined Weizmann, Ben-Gurion, and Shertok in trying to negotiate with the Crown. He conveyed the futility of this effort in a letter to Brandeis, believing that nothing could now avert suspension of immigration. When Wise arrived back in the United States, he requested and received an interview with Franklin Roosevelt, who much to Wise’s surprise seemed well informed on Palestine. At Wise’s request, the president had Secretary of State Cordell Hull inform the British that the United States “would regard suspension of immigration as a breach of the Mandate.” The prime minister, Stanley Baldwin, decided that by a small gesture he could placate both the Zionists and the American president, and announced that until the royal commission finished its work, there would be no change in Palestinian immigration policy.
“You have performed a marvelous feat,” Brandeis told Wise, “nothing more important for us has happened since the Mandate, perhaps nothing so important as to make clear to Great Britain America’s deep interest…. It will show that F.D.’s administration ‘means business’; and will be a record for the future.” It meant no such thing, and Brandeis should have known better. American rights in the Holy Land had been defined and circumscribed in the Anglo-American Convention of 1924, and aside from some commercial interests the United States had little to say about the government of Palestine or its immigration policy. In an election year Roosevelt had nothing to lose by this piece of theater. If His Majesty’s Government had said no, then he had tried; by granting a delay, the British had sacrificed nothing, and gave Roosevelt another card to play in his bid for reelection.
The Peel Commission, by all reports the most able of all the royal inquiries, finished its work in July 1937 and, recognizing the in tractable problems, recommended the partition of Palestine into Jewish and Arab territories and the severe restriction of further Jewish immigration. Brandeis was furious, and he urged the Zionists to oppose partition with all their might. American Jewish leaders pleaded with Roosevelt to act, and the justice went to the White House himself in October 1938 for the first time since the Court-packing plan had failed. He urged Roosevelt to pressure the British into doing the right thing, and he reported that he had found the president sympathetic. Following the bloody Kristallnacht riots in Germany on 9 and 10 November 1938, it became clear that only Palestine could be a haven for Hitler’s victims, and Brandeis again pleaded with Roosevelt to act.
This time His Majesty’s Government stood determined, and Zionists learned that a white paper essentially closing Palestine to all but a handful of immigrants would be forthcoming. Brandeis appealed to Roosevelt at least four times between 6 March and 10 May 1939 for the United States to stop Britain from shutting the doors to the one place that could take the growing tide of refugees. The campaign that the ZOA mounted led Roosevelt, who believed that a major shift in policy would be a mistake for the British, to have the State Department inform the Foreign Office that the United States hoped that no drastic changes would be implemented in Palestinian immigration. All to no avail. On 17 May 1939 the Crown issued a white paper declaring that an independent Jewish state would be created in ten years, and that immigration to Palestine would be limited to a total of 75,000 people over the next five years; after March 1944 there would be no further Jewish immigration without Arab permission, and Jewish settlements would be limited to restricted areas. The anguish felt by millions of Jews in Europe and elsewhere found expression in Louis Brandeis’s simple question: “Where will a poor Jew go now?”