Ear­li­er this week, M. M. Sil­ver wrote about the rich­es in Louis Mar­shal­l’s archive and explored why it took so long for some­one to write a full-length biog­ra­phy of this impor­tant fig­ure in Amer­i­can Jew­ish his­to­ry. He has been blog­ging here this week for Jew­ish Book Coun­cil and MyJew­ish­Learn­ing.

The main chal­lenge I faced when prepar­ing a biog­ra­phy of Louis Mar­shall stemmed from the gap between the per­cep­tu­al con­fi­dence that char­ac­ter­izes Amer­i­can Jew­ish life in the 21st cen­tu­ry and the ten­sions and inse­cu­ri­ties of Jew­ish life in the Unit­ed States dur­ing the first decades of the 20th cen­tu­ry. The trick, I believed, was to cre­ate an intel­li­gi­ble dia­logue between these dif­fer­ing modes of thought and feel­ing. To recre­ate his­tor­i­cal events uncrit­i­cal­ly, exact­ly as Mar­shall and his peers saw them, would draw con­tem­po­rary read­ers into a morass of inhi­bi­tion about being too Jew­ish” that is for­eign to them, where­as to over­look real­i­ties and atti­tudes that were indis­putably part of Mar­shal­l’s Amer­i­can Jew­ish milieu would be con­de­scend­ing and, worse, inju­ri­ous to empir­i­cal rules of his­tor­i­cal scholarship. 

Amer­i­can Jew­ish his­to­ry is hap­pi­ly devoid of the angst that char­ac­ter­izes Jew­ish life on oth­er con­ti­nents and in oth­er con­texts. It is per­fect­ly rea­son­able for con­tem­po­rary read­ers to assess crit­i­cal­ly the self-defense labors of pre­vi­ous gen­er­a­tions of Amer­i­can Jews, and con­clude, in some instances, that past Jew­ish lead­er­ships were over­ly defen­sive and inhib­it­ed, even in ways that could be para­noiac or self-defeating.

Yet this crit­i­cal license to look at the past heroes of Amer­i­can Jew­ish life as high-strung, occa­sion­al­ly histri­on­ic, fig­ures can be tak­en much too far; and to my mind, at least, much of the finest recent­ly pub­lished schol­ar­ship on Amer­i­can Jew­ish life in peri­ods and con­text applic­a­ble to Mar­shal­l’s life, such as the Roar­ing Twen­ties, is flawed to some extent by researchers’ anachro­nis­tic pro­jec­tion of Jew­ish life in Amer­i­ca in the late 20th cen­tu­ry or ear­ly 21st cen­tu­ry onto the Amer­i­can Jew­ish past. Schol­ars who focus on how Jews came to feel at home” in Amer­i­ca in a peri­od like the 1920s tend to under-empha­size the extent to which anti-Semi­tism was a con­stant pres­ence in the minds and real life cir­cum­stances of both well-estab­lished Jews, and strug­gling immi­grant Jews.

Writ­ing draft chap­ters of the biog­ra­phy, I recalled how the great Eng­lish his­to­ri­an E.P. Thomp­son, whom I idol­ized in my col­lege years, warned about how the enor­mous con­de­scen­sion of pos­ter­i­ty” can lead his­to­ri­ans toward breath­tak­ing­ly incor­rect con­clu­sions about the life choic­es reached by the heroes of the past. Along these lines, I rumi­nat­ed about how anachro­nis­tic soft-ped­al­ing of anti-Semi­tism as a real force to be reck­oned with on the land­scape of ear­ly 20th cen­tu­ry Amer­i­ca could pro­duce blind spots in a biog­ra­pher’s eval­u­a­tion of Mar­shal­l’s life course.

A reveal­ing case in point is the sto­ry of why Louis Mar­shall nev­er won a Supreme Court appoint­ment. In view of Mar­shal­l’s stel­lar accom­plish­ments as an attor­ney, which were laud­ed by legal lumi­nar­ies such as Ben­jamin Car­do­zo, and the fact that Mar­shall him­self lob­bied in at least two instances for an appoint­ment and had pow­er­ful allies such as Jacob Schiff on his side, schol­ars have long pon­dered about the non-attain­ment of this goal. Mis­in­ter­pret­ing a cryp­tic remark attrib­uted to William Howard Taft, the Pres­i­dent who did not appoint him to the Supreme Court bench, gen­er­a­tions of schol­ars con­clud­ed that the sto­ry’s gist has to do with polit­i­cal par­ti­san­ship (the Repub­li­can Taft’s remark about Mar­shal­l’s non-appoint­ment referred to the lat­ter’s law part­ner, Samuel Untermy­er, an out­spo­ken Demo­c­rat), or oth­er rel­a­tive­ly innocu­ous topics. 

Though I stum­bled onto the answer to the rid­dle of the non-appoint­ment ear­ly in my research, I orig­i­nal­ly planned to rel­e­gate the sub­ject to an extend­ed foot­note, large­ly because of the dis­com­fit inher­ent in cor­rect­ing my teach­ers’ teach­ers in the role of an imp­ish smart aleck. Every­thing that had ever been writ­ten on this top­ic was dead wrong, but ulti­mate­ly the point is moot because Taft nom­i­nat­ed the emi­nent­ly qual­i­fied Charles Evans Hugh­es, and any con­clu­sion as to whether he almost” or might have” tapped Mar­shall for the job would be pred­i­cat­ed spec­u­la­tive­ly on the Pres­i­den­t’s state of mind.

As chap­ter frag­ments began (much to my sur­prise) to con­sol­i­date as the draft of a full biog­ra­phy, it became obvi­ous that the sub­ject could not be kicked down­stairs into a foot­note. In spring 1910 Mar­shall bad­ly want­ed to became a Supreme Court Jus­tice, and the dis­ap­point which this frus­trat­ed ambi­tion engen­dered clear­ly had bio­graph­i­cal con­se­quences that could­n’t be ignored. 

More­over, to remove from the tale of Mar­shal­l’s life the char­ac­ter respon­si­ble for mak­ing his Supreme Court bid a non-starter, Hearst news­pa­per edi­tor Arthur Bris­bane, prob­a­bly the most influ­en­tial jour­nal­ist of the era, would have excised from the biog­ra­phy one of its most com­pelling and dra­mat­i­cal­ly poignant ironies. As it turns out, the same per­son respon­si­ble for the most crush­ing dis­ap­point­ment in Mar­shal­l’s pro­fes­sion­al career, was lat­er a deci­sive col­lab­o­ra­tor in the most inspir­ing accom­plish­ment of Mar­shal­l’s work as a Jew­ish advo­cate (Hen­ry Ford con­di­tioned the release of his apol­o­gy to the Jews on Bris­bane’s involve­ment, and Bris­bane coop­er­at­ed ful­ly with Mar­shall in this tri­umphant moment). 

The issue, I real­ized, had been incor­rect­ly for­mu­lat­ed, large­ly because of anachro­nis­tic wish­ful think­ing about Amer­i­can sociopo­lit­i­cal real­i­ties a cen­tu­ry ago. The way the ques­tion has to be posed is not why did Mar­shall lose his Supreme Court bid,” but rather why was such a nom­i­na­tion a non-starter”? Were we to ignore how sat­u­rat­ed by Jew hatred Mar­shal­l’s cir­cum­stances became once his desire for a place on the bench became pub­lic knowl­edge, we would be in dan­ger of mis­un­der­stand­ing how he cal­i­brat­ed lev­els of assertive­ness in sub­se­quent Jew­ish defense efforts against Ford, the KKK and oth­ers anti-Semi­tes. In fact, we might over­look the roots of his moti­va­tion as a Jew­ish leader in Amer­i­ca were we not to see what he saw when he pur­sued his high­est career ambi­tion, and feel what he felt when he saw that desire derid­ed sav­age­ly in mass media attacks that were rife with anti-Semit­ic innu­en­do about greedy cor­po­rate lawyers being unwor­thy of the high­est bench in the land. Louis Mar­shal­l’s law firm, wrote Arthur Bris­bane in a syn­di­cat­ed col­umn that opposed and ridiculed his bid for the Supreme Court, is found­ed on the con­tention that the poor have no rights when their pres­ence inter­feres with the del­i­cate sen­si­bil­i­ties of the rich.” One need not fret about Mar­shal­l’s quashed ambi­tion, the Hearst papers exult­ed in upper case glee, because his firm WILL PROB­A­BLY HAVE PLEN­TY OF IMPOR­TANT LUCRA­TIVE WORK ON ITS HANDS FOR MANY YEARS TO COME!” 

So, what did Louis Mar­shall see when he threw his hat in the ring for the Supreme Court bench? What was Pres­i­dent Taft real­ly talk­ing about when he asked Jacob Schiff sar­cas­ti­cal­ly would you name Sam Untermy­er’s part­ner to the Supreme Court?” Well that’s a sto­ry about resort cot­tages, tuber­cu­lo­sis treat­ment, Macy’s depart­ment store, Lake­wood New Jer­sey and many things I nev­er imag­ined need­ing to write about when I began this biog­ra­phy project, and end­ed up detail­ing to avoid a free fall into the abyss of enor­mous con­de­scen­sion evoked by E.P. Thomp­son’s stricture. 

Join M. M. Sil­ver for the Louis Mar­shall and the Rise of Jew­ish Eth­nic­i­ty in Amer­i­ca: A Biog­ra­phy book launch on March 12th at Con­gre­ga­tion Emanu-El in NYC. More infor­ma­tion about this event can be found here

M. M. Sil­ver is a mod­ern Jew­ish his­to­ry schol­ar at Max Stern Col­lege of Emek Yezreel in Israel. He is the author of sev­er­al books and arti­cles, includ­ing Our Exo­dus: Leon Uris and the Amer­i­can­iza­tion of Israel’s Found­ing Sto­ry. The book launch event for his newest book, Louis Mar­shall and the Rise of Jew­ish Eth­nic­i­ty in Amer­i­ca: A Biog­ra­phy, will be held on March 12th at Con­gre­ga­tion Emanu-El in NYC. More infor­ma­tion about this event can be found here.