My friend knew that, for me, this question was not entirely theoretical. He paused for a moment and said, “No. You have to convert the usual way and then have a fight with your rabbi.” He explained that I would be welcomed at shul—“particularly if you are willing to make a contribution to the building fund”—and could participate in many aspects of Jewish life, but to become a secular Jew you must first be a Jew.

***

Like most people, I grew up in the religion of my parents, which for me meant almost no religion at all. Neither of them were believers. I was baptized, but the only services I attended were at a Unitarian church my mother joined during my teenage years. I remember singing secularized Christmas carols copied on the church mimeograph machine.

In my youth, religion didn’t make an impression, but science did. My elementary-school days were spent in Park Forest, Ill., a Levittown-like planned community south of Chicago, where I often sat in front of our black-and-white set to watch Dr. Posin’s Universe, a public television science program hosted by a charming DePaul University physics professor. I loved visiting Chicago’s Museum of Science and Industry, and when the family cat brought home a dead sparrow, I horrified my parents by dissecting the still-warm creature on my desk blotter. I read about the undersea adventures of Jacques Cousteau in National Geographic, and despite living over a thousand miles from the nearest ocean, I dreamed of being an underwater explorer just like him.

Nor did anything in my later years come along to pull me toward religion. College in the late 1960s and early ’70s coincided with a period of great social experimentation. Some of my friends joined the Church of Scientology; others became immersed in transcendental meditation. I got a mantra and started to meditate, and I went to an introductory Dianetics meeting. But in the end, none of it stuck. There were no holes in my life that religion might possibly fill, and nobody taught me to appreciate the ritual and emotion of religious life. As an English major in college, I was sometimes at a loss when novels and poems made references to biblical characters, but this seemed like a minor problem.

When I became a permanent member of the academic world, I began to meet more Jews and to learn bits and pieces of Jewish history and culture. I kept discovering artistic and scholarly heroes who turned out to be Jewish. I loved Bellow, Malamud, and Roth, and long after I left the suburbs, I learned what I had been too young to know at the time—that Park Forest was founded and led by a group of Jews making their mark in post-World War II America. But the real education was still to come, after I entered into a relationship with a Jewish woman.

As luck would have it, most of the women I have loved were of a different religion—which is to say they endorsed a religion of some sort. For 20 years, I was married to a Christian who occasionally took our kids to an Episcopal church. I never hid my lack of faith from anyone, but in solidarity with the rest of the family, I sometimes came along to services. Because Protestant Christianity was the default culture of my upbringing, the rituals were familiar to me. I loved singing the hymns, and when the sermons touched on social issues, I often found them quite interesting. The God-talk and prayer were lost on me, but I was moved by the hopefulness and generosity of spirit.

Several years after my marriage ended, I fell in love with a woman who was a deeply religious Conservative Jew, and suddenly the door swung wide open. I soon found myself attending religious services again, but with two important differences. First, the world inside the synagogue was shockingly alien to me. I was embarrassed to discover how little I knew of the religion and its practices. Second, in this case, I was a willing student. I never learned Hebrew or had any interest in converting, but I did my best with transliteration, took the rabbi’s class on Pirkei Avot, and learned to bake challah. I attended Seders, ate in sukkahs, and acquired the secret language of heksher symbols. It was a big Jewish universe, and I felt very fortunate to have such a wonderful guide.

For a time I thought I had solved the problem. I would become a secular Jew by marriage—or, in my case, by unmarried romantic relationship. I knew several friends who had married into the Jewish community. I never asked them about their reasons for not converting, but I watched these people assimilate quite happily. They enrolled the kids in Hebrew school and participated in services as a family. I seemed to have achieved a similar transition and was very happy.

Until the relationship ended.

Suddenly, I was back on the outside of my adoptive Jewish community, but I was not the same person. The relationship was no longer my ticket to secular Judaism, but it educated me in ways I will always appreciate. I now have a much greater understanding of Jewish religious life, culture, and politics, and I still participate in ways that are quite meaningful for me. I attend services at the High Holy Days; I have people over for Shabbat supper; and I feel a special sense of connection with Jewish friends and acquaintances. I am not a Jew, or even a secular Jew, but I have spent enough time in this world to know its customs and enjoy some of its many benefits.

In Choosing a Jewish Life, Anita Diamant recounts a famous episode of Louis Brandeis’ life:

A story is told about Louis Brandeis (1856-1941), who was a student at Harvard Law School at a time when there were explicit limits on what Jews could hope to achieve. Quotas were in effect and many law offices were completely closed to Jewish attorneys. When Brandeis was in school, his colleagues would say, “Brandeis, you’re brilliant. If you weren’t a Jew, you could end up on the Supreme Court. Why don’t you convert? Then all of your problems would be solved.”

Brandeis did not respond to such comments, but on the occasion of his official introduction to an exclusive honor society at the law school, Brandeis took the podium and announced, “I am sorry I was born a Jew.” His words were greeted with enthusiastic applause, shouts, and cheers. But when the noise died down he continued. “I’m sorry I was born a Jew, but only because I wish I had the privilege of choosing Judaism on my own.”

The initial response of stunned silence slowly gave way to awed applause. Ultimately, his anti-Semitic peers rose and gave him a standing ovation.

Brandeis was right: Conversion is only possible when moving from one religion to another or from a state of non-belief to belief. If, like Brandeis, you happen to be born into the religion you love, you cannot enjoy the additional privilege of deliberately choosing the religion you love.

For me, there is a parallel but opposite roadblock. In 2004, the Washington Post reported that 80 percent of Jews in Israel were secular. The percentage is undoubtedly much lower in the United States, but here, too, secular Jewish life is common. I would love to be a member of that group, but it is not possible for me. Just as conversion to the Judaism of one’s birth is impossible; so too is conversion from some other faith—or none—to secular Judaism. Becoming Jewish is a serious business. You cannot simply declare yourself a Jew. As a result, the person who is born Jewish is granted the choice of being a religious or a secular Jew. Though it might never have occurred to him to be anything but a religious person, this was a choice that Brandeis retained. But for the secular person who is not born Jewish, Jewish secularism is another kind of impossible conversion. The path to secular Judaism must go through belief, and if belief in the Jewish religion is impossible, then Jewish secularism is unattainable.

While this may be frustrating for a small group of secular non-Jews who, like me, are attracted to Jewish life—people who might be said to have a Jewish heart but not a Jewish soul—I think, in the end, there is something fitting about it. There is a Jewish culture, but it is a culture that grows out of a people with a common faith. The synagogue door is open. You may come in and sit with the congregation. But without adopting the religion, the person who is not born Jewish cannot call him or herself a Jew.

The other instance related to her effusive 2006 introduction of Aharon Barak, the president of the Israeli Supreme Court from 1995 to 2006, who visited Harvard University’s School of Law when Kagan was dean, and who conservative critics said represents “judicial activism.” “I don’t think it’s a secret I am Jewish,” Kagan said. “The state of Israel has meant a lot to me and my family.” She went on to say, “I admire Justice Barak for what he’s done for the state of Israel and ensuring an independent judiciary.”

“[Barak] was central,” Kagan continued, “in creating an independent judiciary for Israel and in ensuring that Israel—a young nation, a nation threatened from its very beginning in existential ways and a nation without a written constitution—he was central in ensuring that Israel, with all those kinds of liabilities, would become a very strong rule of law nation.”

In her hearings before the Senate Judiciary Committee, Kagan stressed that she would not look to Barak’s judicial method as a model, saying the admiration she expressed in 2006 didn’t stem from his judicial philosophy or specific decisions.

But a third issue was raised at the hearings, and no one spoke of its Jewish antecedents. The elephant in the room was stare decisis (“let the decision stand” in legal Latin). It means refraining from overturning settled matters, regarding them as binding precedent. As we shall see, the controversy over stare decisis has a long history and dates back to the development of Jewish Law, known in Hebrew as halakhah. Interestingly, the Justice’s position in this regard accords with halakhah, even if eating in unsupervised Chinese restaurants does not.

Let’s look at American jurisprudence first.

As Jessica Gresko of the Associated Press noted, “At Sotomayor’s hearings, the phrase [stare decisis] was used about as often as the phrase ‘wise Latina,’ two words Sotomayor took a beating over. For senators, both Democrat and Republican, stare decisis is a big deal. They want to know that as a justice Kagan will be committed to past court decisions and want assurances she won’t overturn them.”

Stare decisis is not mentioned in the U. S. Constitution or in any specific law. In writing for the majority in Citizens United v. Federal Elections Commission, Chief Justice John Roberts wrote, citing precedent, that “stare decisis is neither an ‘inexorable command,’ nor ‘a mechanical formula of adherence to the latest decision.’” In this, Chief Justice Roberts (probably unbeknown to him, as a Catholic) reflected a basic tension in Jewish law.

As a nominee, Kagan termed recent Supreme Court rulings upholding gun rights (McDonald et. al. v. City of Chicago and D.C. v. Heller) “binding precedent.” In response to a question from Sen. Chuck Grassley, who asked her if she’ll follow stare decisis “to uphold Heller and McDonald,” Kagan said she will, as she will for “any case,” leaving herself, as we shall see, some wiggle room.

She also testified that the court’s rulings mandate that in any law regulating abortion “the woman’s life and the woman’s health have to be protected,” a reference to Roe v. Wade (which incidentally is also what Jewish law holds, according to a number of significant Jewish scholars).

Kagan also acknowledged that the case known as Citizens United is “settled law.” In that controversial 5-to-4 decision, the Supreme Court, overturning two precedents, struck down portions of the McCain-Feingold Act and held that corporate funding of independent political broadcasts in candidate elections cannot be limited under the First Amendment, potentially opening the floodgates for corporate campaign-finance expenditures. The Citizens United decision has been much vilified and, to a lesser extent, praised.

After demonstrating obedience to stare decisis, however, Kagan also testified, at a different time during the hearings, that the court should properly consider whether a “decision has proved unworkable over time, whether the decision’s doctrinal foundations have eroded, or whether the factual circumstances that were critical to the original decision have changed.” She thus apparently does not favor a doctrinaire application of stare decisis, but views it essentially as a rebuttable presumption; this is the “wiggle room” I referred to earlier and, as we shall see, accords well with the majority approach to halakhah.

There is ongoing tension between binding precedent and “advisory precedent” in U.S., British (common), and Israeli law, among other legal systems. This tension between precedent and innovation is not new; in fact, it has been going on for thousands of years.

It may be useful to consider the Talmud’s position.

Talmudic study has always been about competing in a marketplace of ideas and making sometimes hairsplitting distinctions, all in the name of finding truth. Not only is the Talmud itself replete with controversy, but in the standard editions of the Talmud, of course, the text is surrounded by commentaries and supercommentaries, and thousands more glosses have been written over the generations, many in flat contradiction to previous annotations.

What emerges out of all this seeming chaos is like the results of a spectroscopic analysis, with bands of different colors whose width represents the degree of consensus. On some issues, there is a wide band of a single color signifying broad agreement, while on others there is a colorful rainbow of narrow bands reflecting an enduring lack of consensus. Of course, the range of opinion is ultimately constrained by the Torah, which establishes immutable boundaries. The U.S. Constitution—even if, unlike the Torah, it is amended on rare occasions—functions somewhat similarly.

Over the years, in a lengthy and evolutionary process, Jewish law, which was oral and made by rabbis, based on and limited by Torah mandates, ultimately became codified. Given the Talmud’s preference for inclusion and respect for multiple opinions, such codification was, to say the least, not without criticism and was approached cautiously.

In fact, just the act of writing down rulings, or halakhot, was controversial. Writing the law down was opposed by the rabbis for more than a thousand years because written rulings are inherently less flexible. For this reason, other than the written Torah, known as Torah shebichtav, Jewish law was maintained as solely oral instruction, or Torah she-b’al pe, until political instability prompted Rabbi Judah Ha-Nasi and his rabbinic colleagues to redact the Mishnah, the older portion of the “oral law” in the late second century CE.

Of course, judges and litigants alike all crave certainty, which well-written codes provide.

The tension between binding precedent and advisory precedent continued for a long time, as did the evolution of Jewish codes.

In the middle of the 11th century, Isaac b. Jacob ha-Kohen Alfasi, known as the Rif, compiled the Sefer ha-Halakhot, or Book of Laws, one of the earliest codes. It is arranged in the order of the Talmudic tractates, and embraces only the laws in practice at the time. Where earlier and later authorities disagree, Alfasi decided in favor of the latter, following the rule known as hilkheta ke-vatra’ei.

Maimonides’ 12th century Mishneh Torah created a new literary form for the Codes, that of a book of “pesakim,” or book of statutes without reference to the Talmud or other sources. Maimonides made the shocking but unequivocal statement that anyone who referred to the Written Law and to his own book would know each and every detail of halakhah and have no need for any other book.

This, exactly, was what Maimonides’ detractors objected to. Some, like Rabbi Yonah of Gerona even publicly burned copies of the Mishneh Torah (an action he later regretted). Codifications set the law in stone, and inherently violate the ancient precept that halakhah must be decided according to the later sages.

The principle of hilkheta ke-vatra’ei essentially stands in opposition to the idea of codification that stare decisis represents. Maimonides’ embrace of stare decisis (at least from his day forth) engendered much controversy, with Rav Abraham b. David of Posquières, known as the Rabad, leading the opposition.

Rabbi Menachem Elon, a professor who served as a justice on the Israeli Supreme Court from 1977 to 1993, and who was its deputy president from 1988 to 1993, commented on hilkheta ke-vatra’ei in his major work, Jewish Law: History, Sources, Principles. Elon notes that the rule that halakhah follows the later decisors dates from the Geonic period, from 589 to 1038. It laid down that until the time of Rabbis Abbaye and Rava, in the fourth century CE, halakhah was to be decided according to the views of the earlier scholars, but from that time onward, the halakhic opinions of post-Talmudic scholars would prevail over the contrary opinions of a previous generation.

Rabbi Asher ben Yechiel, who lived from 1259 to 1327 and was known as the Asheri or Rabbenu Asher, or “our teacher, Rabbi Asher,” and is known to Yeshiva students simply as the Rosh, was a codifier. Despite this, he criticized Maimonides’ basic notion concerning the place of a “book of pesakim,” or codes, in Jewish law. He remarkably wrote, “If one does not find their [earlier] statements correct and sustains his own views with evidence that is acceptable to his contemporaries, he may contradict the earlier statements, since all matters that are not clarified in the Babylonian Talmud may be questioned and restated by any person, and even the statements of the Geonim may differ from his, just as the statements of the Amoraim [rabbis living from 200 to 500 CE] differed from the earlier ones.”

“On the contrary,” Rosh writes, “we regard the statements of later scholars to be more authoritative because they knew the reasoning of the earlier scholars as well as their own, and took it into consideration in making their decisions.” He also warns that “all teachers err if they instruct from the statements of Maimonides without being sufficiently familiar with the Gemara (later part of the Talmud) so as to know where they were taken from … therefore no person should be relied upon to judge and instruct on the strength of his book without finding supporting evidence in the Gemara.”

But historical events made the ongoing lack of a code untenable. The late 15th century saw the mass migration of Jewish communities, the expulsion of Jews from Spain, and the establishment of new centers of Jewish learning. Just as instability prompted Rabbi Judah to redact the Mishnah, so too, Rabbi Joseph Karo (1488-1575), himself a transplant to Safed, in the North of Israel (from his native Toledo, Spain, via Portugal, Bulgaria, Egypt, Salonica, and Constantinople), saw the urgent need for a comprehensive code. He called his work the Shulchan Aruch, or “the set table,” and compiled it from 1555 to 1558. It was first printed in Venice in 1565. The work was soon adapted to the customs of Ashkenazi Jewry with glosses written by Rabbi Moshe Isserles, who lived from 1520 to 1572 and was known as the Maimonides of Polish Jewry and later called the Rema. His work is referred to as haMappah, or “the tablecloth,” and was first published together with the Shulchan Aruch in 1569, during the lifetime of Rabbi Karo.

Mindful of the criticisms leveled against Maimonides by the Rosh, Rabad, and others, the Rema cautioned against overreliance by judges on the Shulchan Aruch and on his own glosses, saying, “in any case, a judge must be guided only by what his own eyes can see,” sage advice that has all too often been forgotten. In any event, within a short time, the Shulchan Aruch together with HaMappah became the established starting point for deciding all questions of Jewish law in all Jewish communities worldwide, although Sephardic communities don’t always accept the opinions of Rabbi Isserles as binding.

Common law, also known as case law, evolved similarly and tends to follow the rule of hilkheta ke-vatra’ei. As Rabbi Michael J. Broyde, a professor of Law at Emory University, points out, common law is definitely influenced by Jewish law. He wrote, “The great early writers of the common law had Maimonides’ code of Jewish law in front of them in Latin translation.”

The British legal system has employed common law since the middle ages. It is also widely used in nations that trace their legal heritage to England as former colonies of the British Empire. These include the United States, to some extent, Malaysia, Singapore, Pakistan, Sri Lanka, India, Ghana, Cameroon, Canada, Ireland, New Zealand, South Africa, Hong Kong, and Australia.

Common law is distinguished from statutory law in that decisions are based on previously decided cases, but prior cases need not be decisive. They are granted more or less weight in the deliberations of a court according to a number of factors:

• Is the precedent “on point”? That is, does it deal with a circumstance identical or very similar to the circumstance in the instant case?

• When and where was the precedent decided? A recent decision in the same jurisdiction as the instant case will be given great weight. Next in descending order would be recent precedent in jurisdictions whose law is the same as local law.

• Does the precedent stem from dissimilar circumstances, older cases that have since been contradicted, or cases in jurisdictions that have dissimilar law? (These would be given least weight.)

An example of the application of common law in a United States court is in the famous case of MacPherson v. Buick Motor Co., where then New York Court of Appeals Judge Benjamin Cardozo, who would later become the second Jewish justice on the Supreme Court, established a broad principle of liability for foreseeable danger that was nowhere codified; he based his decision on the judicial trend of predecessor cases over the years that progressively increased the standard for liability, granting more weight to recent decisions. It serves as a good example of the application of hilkheta ke-vatra’ei. And once again, Justice Cardozo’s decision pretty much follows halakhah as it relates to tort liability, or nezikin.

At her confirmation hearing, Kagan was asked repeatedly whether her expressions of opinion in memos written when she was clerking for Justice Thurgood Marshall reflected a proclivity for overturning precedent or viewing cases through a policy-minded prism. She answered cautiously, saying that in her opinion, mere disagreement is not enough to warrant overturning a precedent. This cautious posture is entirely accordant to Jewish law.

Perhaps it is Jewish law’s inherent elasticity and flexibility—bounded by the Torah but expressed in the freewheeling chaos of ongoing study—that has enabled Jewish law to renew itself and remain relevant after thousands of years. This might work in American law, as well.

David E. Y. Sarna is a writer, investor, and technologist. His book, History of Greed: Financial Fraud From Tulip Mania to Bernie Madoff, will be published by Wiley in September 2010. He blogs at David Bar Nahum.

• Politico does the Politico-y thing and says that Kagan’s “vapid and hollow” critique has never rang more true, so doesn’t that make her a hypocrite? (Um, no?) [Politico]

• Endorsements!. [Philadelphia Inquirer; WP; Slate; NYT]

• Jeffrey Rosen notes that Kagan would have the seat once held by Justice Louis D. Brandeis (under the same logic that governs, say, lineal championships in boxing: She would replace Stevens, who replaced Douglas, who replaced Brandeis.) Kagan should model herself after Brandeis, adds Rosen, who “eloquently defended [the] economic and moral justice” of Progressive laws. Brandeis, of course, was the High Court’s first Jew; should Kagan be confirmed, she will be the current Court’s third. [NYT]

• I linked to it last week, but please watch Jon Stewart’s take on the Committee’s questions about her “Upper West Side” background.

The word “Senatize” ought to go in the Oxford English Dictionary: “v.: To make something funny unfunny, stilted, and lasting longer than ten seconds.”

Earlier: Kagan Hearings Kick Off

• “A Zionist Supreme” by Adam Kirsch, September 29, 2009. Kirsch, our books critic, credited Louis Brandeis, the first Jewish U.S. Supreme Court justice, with “la[ying] out the terms of the compact that still governs American Jews’ relations with Israel: they would offer money and moral support, but not sacrifice their Americanness.”

• “Mother May I?” by Eryn Loeb, June 11, 2009. Loeb, a contributing editor, revisits A Treasure for My Daughter, which contains everything a young Jewish woman is supposed to know … in 1950.

• “King Without a Crown” by Allison Hoffman, May 10, 2010. Hoffman, our senior writer, epically profiled Malcolm Hoenlein, one of the most politically influential American Jews.

Do you have other favorites? List ‘em in the comments …

The reality of Jewish bodies, of course, is that most of them are equally as grotesque as every other ethnic group’s bodies. Jewish bodies range from Auschwitz anorexics to jiggling, morbidly obese noshers. There are Jewish dwarves and Jews who suffer from gigantism. There are so many physical types among Jews that one might briefly consider the notion that they’re actually just like other peoples. But, Jews being Jews, such thoughts are fleeting. Stereotypes die hard. Jokes about the paucity of Jewish athletes still abound, forcing Jews who hope to counter such stereotypes to create odd publications such as encyclopedias of Jews in sports and other books and pamphlets designed to salve the wounds of a people allegedly doomed to physical ineptitude.

The concept of the Jewish nebbish, for instance, might seem like the creation of anti-Semites, but it has also long been abetted by Jews as well, who played down Jews’ physical accomplishments. In reality, while their intellectual tradition decries it, Jews have always been involved in athletics. But most of those who keep the Jewish historical record books—shameless brainiacs that they are—choose to edit athletes out of the picture. Jews were circus performers, too, from the Roman era through the Middle Ages and up to the modern period. But, once again, the people who wrote Jewish texts weren’t interested in such activities, except to try and ban Jews from participating, so they refused to document the reality of Jewish participation. Bit and pieces of evidence crop up in a variety of places. For example, interspersed in published 17th- and 18th-century lists of the few thousands of merchants who attended the months-long mercantile fairs in Leipzig—the only period in which Jews were permitted in the city—are more than 100 Jewish performers, among them acrobats, athletes, magicians, musicians, some with trained animal acts.

By the late 19th and early 20th centuries, Jewish involvement in athletics began to grow as a result of both urbanization and embourgeoisement. Moreover, Jewish political movements began to co-opt athletics as a way to engage the youth—a clever way of tricking Jewish kids into supporting political parties.

Successful Jews athletes were far more popular than politically and culturally engaged Jews of the same period. In their time, people like the boxer Benny Leonard and the circus strongman Zishe Breitbart were far better known and more beloved by Jews than a jurist like Louis Brandeis or a thinker like Mordecai Kaplan. In 1925, the Yiddish daily Der nayer varhay noted, “When Einstein visited America, thousands of people knew about it. But (Jewish boxer) Benny Leonard is known by millions.” And it is also of no small significance that such activity boosted the confidence of a socially and politically disenfranchised people. But historians and communal leaders pretend that athletics never mattered to Jews and retroactively turn the intellectual celebrities into bigger stars.

The bodies of athletes have been of interest to viewers for millennia. As Jews entered the mainstream, the strong and beautiful among them also became interesting, not necessarily because they were Jews, but because they were hot. Superior athleticism also played a major role. On the other hand, to Jewish spectators, it was simply a trifecta of “hot, Jewish, athlete” that served as a modern antidote to “crusty, bearded, rabbinic.”

Long before he was appointed to the court, however, Brandeis was nationally known for his work on behalf of the Progressive movement, waging battles against railroad monopolies, exploitive insurance companies, and political corruption. It was his fame as a reformer that led Woodrow Wilson to pick Brandeis for the court even though he had never been a judge—something that would be unimaginable in our more cautious and credentialized age. (Before naming him to the Court, Wilson contemplated making Brandeis attorney general or even secretary of commerce.) And before he became a reformer, Brandeis was a leading lawyer and legal thinker, whose firm, Warren and Brandeis, was one of the most important in Boston. Even if Brandeis had never done anything after co-writing “The Right to Privacy,” a pioneering article in the Harvard Law Review, in 1890, he would have a place in legal history.

All three of these careers—lawyer, reformer, judge—fit together naturally enough. It is Brandeis’s fourth career, as the founding father of American Zionism, that poses the biggest biographical enigma. While the fact that Brandeis was Jewish was well known, before 1912 he displayed virtually no interest in Jewish issues. He “had a number of Jewish clients and did some legal and advisory work for the Boston Jewish community,” Urofsky writes, but “he had avoided taking on major responsibilities. His contributions to various Jewish charities had been nominal, well below what a person of his means could have given.” Nor was he a practicing or believing Jew: “At home, [the Brandeis family] celebrated Christmas as a secular holiday for the children, complete with tree and toys.”

This arm’s-length approach to Judaism was the natural result of Brandeis’s upbringing. He was born in Louisville, Kentucky, in 1856, the youngest child of German-speaking Jews from Prague who had come to America, like many German liberals, following the failed revolution of 1848. Unlike most of the Eastern European Jews who immigrated at the end of the century, the Brandeis clan was already assimilated and prosperous when they arrived in the United States. His father and mother, Adolph and Frederika, crossed the Atlantic with a group of twenty-six family members, toting “twenty-seven great chests … and two grand pianos.” Clearly, they did not belong to the huddled masses yearning to breathe free.

Louis grew up speaking German at home, and his father’s business flourished thanks to his connections among the (non-Jewish) German communities of the Midwest. The Jewish part of the family’s heritage was more or less ignored—or, as Louis put it later in life, his parents “were not so narrow as to allow their religious beliefs to overshadow their interest in the broader aspects of humanity.” Urofsky tells a suggestive story from Louis’s childhood, about the time when his sisters Fannie and Amy decided to attend Yom Kippur services for the sake of the music, which they had never heard. Louis and his brother Alfred drove to the synagogue in a carriage to fetch them, only to be berated by the congregants—they didn’t know that Jews weren’t supposed to ride on the holiday.

The real spiritual values of Brandeis’s childhood were an intense American patriotism and a commitment to community service, both of which bore fruit in his reform work. After graduating from Harvard Law School in 1878, at the age of just twenty-one—this was in the era when it was not necessary to get an undergraduate degree before studying law—Brandeis formed his partnership with Sam Warren, and very soon he was making a lot of money. (By 1890, Urofsky writes, he was earning more than $50,000 a year, making him perhaps the top-paid lawyer in Boston; the average lawyer made less than $5,000.) But he and his wife, Alice Goldmark, a second cousin whom he married in 1891, believed in living modestly, so that they could devote themselves to public service. “Some men buy diamonds and rare works of art; others delight in automobiles and yachts,” Brandeis once told a reporter. “My luxury is to invest my surplus effort, beyond that required for the proper support of my family, to the pleasure of taking up a problem and solving, or helping to solve, it for the people without receiving any compensation.”

This noble creed led Brandeis, starting in his forties, to devote more and more of his time to pro bono work. (In fact, Urofsky credits Brandeis with helping to make such unpaid public work a standard lawyerly obligation.) The first third of Urofsky’s book is devoted to this phase of Brandeis’s career, in which he served as “an attorney for the people”—arguing in the Supreme Court on behalf of minimum-wage and maximum-hour laws, fighting the New Haven Railroad’s attempt to monopolize Massachusetts rail lines, and helping establish a system of Savings Bank Life Insurance, which allowed workers to buy cheap policies. “The great opportunity of the American Bar,” Brandeis told a Harvard audience in his 1905 speech “The Opportunity in the Law,” “is and will be to stand again as it did in the past, ready to protect … the interests of the people.”

Brandeis’s surprising turn to Zionism can be seen as another manifestation of the same familial noblesse oblige. The only practicing Jew Brandeis had known growing up was his maternal uncle, Lewis Dembitz, a successful lawyer who was involved in the founding of Jewish Theological Seminary. Brandeis idolized his uncle, whom he once compared to the ancient Athenians for his “longing to discover truths,” and he changed his own middle name from David to Dembitz in Lewis’s honor. Brandeis was intrigued, then, when in 1910, the editor of a Boston Jewish newspaper, interviewing him on the subject of life insurance, asked him if he was related to Lewis Dembitz. Dembitz, the editor said, was “a noble Jew,” for he “had been one of the first Americans to support Theodor Herzl.”

This Daniel Deronda-like episode was Brandeis’s introduction to Zionism, and in 1912 he joined the small Federation of American Zionists. But it was in 1914, as Urofsky shows, that Brandeis vaulted to the head of the movement. With the outbreak of World War I, the European Zionists found themselves divided and paralyzed, even as the danger to Eastern European Jews and the Jewish settlements in Palestine increased. An emergency meeting of American Zionists was called at the Hotel Marseilles in New York, where Brandeis accepted the leadership of the new Provisional Executive Committee for General Zionist Affair, the forerunner of what became, in 1918, the Zionist Organization of America.

From 1914 to 1921, Brandeis was the head of the American Zionist movement. Urofsky carefully balances his achievements in that role with the limitations that eventually led him to be unseated, by a rival faction allied with Chaim Weizmann. Brandeis was a great believer in facts and organization, and his slogan as head of the Provisional Executive Committee was “Men! Money! Discipline!” He was a hugely successful fundraiser, channeling American Jewish wealth to the poor Jewish communities of Europe; between 1912 and 1919, the membership of the committee increased from 12,000 to 176,000. Yet as a technocrat with a cold, reserved temperament, he proved unable to harness the enthusiasm of Eastern European Jewish immigrants, and he never shared the cultural and religious zeal that inspired most Zionists.

His major achievement, Urofsky convincingly argues, was to make Zionism acceptable to newly Americanized Jews, by showing that Zionism and American patriotism did not conflict. On the contrary, he always insisted that “the highest Jewish ideals are essentially American,” that “to be good Americans, we must be better Jews, and to be better Jews, we must become Zionists.” One reason Brandeis was so enthusiastic about Palestine, especially after he visited in 1919, was that he saw in it a blank slate for Jews to create the kind of democratic, egalitarian society he was working for in America.

It followed that American Jews did not have to make aliyah to be genuine Zionists. Rather, Brandeis laid out the terms of the compact that still governs American Jews’ relations with Israel: they would offer money and moral support, but not sacrifice their Americanness. When Brandeis was nominated to the Supreme Court, he took it as vindication: “in the opinion of the President,” he wrote, “there is no conflict between Zionism and loyalty to America.” This is what almost all American Jews still believe, despite increasingly vocal criticism of Israel and “the Israel lobby.” For this, as for so much else, Urofsky reminds us, we have Louis Brandeis to thank.

Adam Kirsch is a contributing editor to Tablet Magazine and the author of Benjamin Disraeli, a biography in the Nextbook Press Jewish Encounters book series.

Writers’ day jobs tend to provide inspiration in one of two ways. Either the office stultifies them so intensely that writing offers an escape, or work fascinates them and they devote their off-hours to chronicling their careers. Danny Evans, firmly in the former category, began blogging about his family in the fall of 2004 to distract himself from his job as an HMO copywriter. “I needed a receptacle for what little sanity I had left,” he told Good Housekeeping. “Something that reminded me I was human despite having sold out to Corporate America.” In Rage Against the Meshugenah: Why It Takes Balls to Go Nuts (New American Library, August), Evans expands upon his popular blog, DadGoneMad.com, to chronicle bouts of depression and therapy, with Yinglish-speckled asides about growing up Jewish in Simi Valley, California. Drowning his despair in beer and porn, Evans occasionally sounds less like an up-to-date Alex Portnoy—who, after all, could recite Yeats from memory—than a young Al Bundy.

Brad Kessler, meanwhile, loves his work, raising goats and making cheese in Vermont when he isn’t writing novels and children’s books. In Goat Song: A Seasonal Life, A Short History of Herding, and the Art of Making Cheese (Scribner, June), a year’s worth of diary entries depict Kessler’s daily routine and explain how he ended up there: he hated “the sound of traffic in the morning and the radio blaring 1010 WINS” in his suburban New York childhood, and sought out “a contemplative life of rural retreat and self-reliance on top of a mountain.” He might have joined a monastery—he spent a few months in one, in Dharamsala, in his teens—if he hadn’t “happened to be a Jew.”

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Of course, it’s easier to enjoy your work if you’re good at it. No wonder, then, that, as a young man, the great jurist Louis Brandeis wrote, “One mistress only claims me. The ‘Law’ has her grip on me.” And, oh, was he ever good to this mistress. Brandeis deserves most of the credit for introducing the protection of free speech and the right to privacy into U.S. law; for the concept of pro bono legal work, generally; and for popularizing Zionism in America. In just under 1,000 pages, Melvin Urofsky’s Louis D. Brandeis: A Life (Pantheon, September) draws upon newly available archival materials to offer insights into the man and his achievements.

Hardly the first tome devoted to Brandeis—Urofsky himself published Louis D. Brandeis and the Progressive Tradition in 1981, and has edited three volumes, so far, of the judge’s correspondence—this massive new biography will not exhaust the discussion. As recently as a couple of months ago, Gerald Berk devoted an entire scholarly volume to a single concept introduced and championed by Brandeis—“regulated competition.” The result, Louis Brandeis and the Making of Regulated Competition, 1900-1932 (Cambridge, June), may not entice readers interested most in Brandeis’s role in American Jewish life—there is no mention of Zionism—but Berk’s attention demonstrates both the breadth and depth of Brandeis’s importance as a social, economic, and political thinker.

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Though Brandeis grew up in Louisville, Kentucky, in the sort of German Jewish family that read Goethe in the original, he often fought for the rights of the people Ronald Sanders called “downtown Jews”: Yiddish-speaking immigrants, sweatshop workers, union activists from Eastern Europe. Focusing on the legendary Forverts editor Abe Cahan, Sanders describes this generation in his 1970 book The Downtown Jews: Portraits of an Immigrant Generation (B&N Rediscovers, June), recently re-released with an introduction by Hasia Diner, a professor of history at New York University. Though uptown and downtown Jews, Yahudim and Yidn, often steered clear of one another, Brandeis wasn’t the only one to reach across the rift. “Mixed marriages” between German and Eastern European Jews, like the one between the German Jewish Flora and the Lithuanian-born advertising whiz Simon at the center of Betsy Carter’s novel The Puzzle King (Algonquin, August), gradually blurred the line. So did the incredible financial successes of some of the Yidn; Simon, who’s based on Carter’s great-uncle, earns a fortune peddling jigsaw puzzles.

When such downtown Jews moved up, quite a few settled on one notable thoroughfare in the Bronx, as New York Times reporter Constance Rosenblum recounts in her urban history Boulevard of Dreams: Heady Times, Heartbreak, and Hope Along the Grand Concourse in the Bronx (NYU, August). Rosenblum talked to Vox Tablet about the Concourse’s storied history earlier this month.

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Forty years ago today, at 2 p.m., Joe Cocker started his set at Woodstock with a cover of Bob Dylan’s “Dear Landlord.” A Dylanologist might be able to divine some powerfully Jewish symbolism in that, but what receives more attention in a crop of Woodstock anniversary books is the role Jews played in organizing the festival. Along with the children’s book Max Said Yes! The Woodstock Story (Change the Universe Press, May), discussed last week by Tablet columnist Marjorie Ingall, the festival’s Jewish roots also show in The Road To Woodstock (Ecco, June), a memoir by Michael Lang co-written with Holly George-Warren. Lang organized Woodstock with a couple of other concert promoters, and in leading up to his description of the events on Yasgur’s farm, he recounts his early days gigging at the Jewish Community House on Bay Parkway and talking business with Bill Graham at Ratner’s dairy restaurant.

Not everyone spent the late ‘60s and early ‘70s turning on and rocking out. Some, like the hero of Elliot Krieger’s debut novel Exiles (Soho, August), concentrated on draft dodging. Lenny Spiegel decamps to Uppsala, Sweden, where he joins a group of antiwar activists and loans his passport to a look-alike colleague. When an Irish lass tells him she might have Scandinavian blood because of “some kind of Viking invasion back there in history,” he can’t relate: “I don’t think the Vikings invaded the shtetls.” Krieger, a Ph.D. in English literature, studied abroad in Sweden in the early ‘70s, and if his dissertation, published as A Marxist Study of Shakespeare’s Comedies (1979), is any indication, he was something of a leftist himself in those days.