Brandeis backed illegal aliya

As published in the Jerusalem Post – December 18, 2008


Louis Brandeis, the first Jewish US Supreme Court justice, supported illegal Jewish immigration to Mandatory Palestine in the late 1930s, in defiance of British policy, new research by a Holocaust historian shows.

The documentation, which will be released Sunday at the annual conference of the Association for Jewish Studies in Washington, demonstrates that while some American Jewish leaders such as Rabbi Stephen Wise were firmly pro-British and opposed aliya on the eve of the Holocaust, others including Brandeis recognized the need for emergency measures to rescue Jews from Europe and were willing to take a more hard-line position, said Dr. Rafael Medoff, director of the David S. Wyman Institute for Holocaust Studies, who will present the research.

Brandeis, who was appointed to the Supreme Court by president Woodrow Wilson in 1916 and served until 1939, was a leader of the American Zionist movement in the 1910s and early 1920s.

Even after he resigned from the bench, Brandeis remained extremely influential in the movement and was repeatedly consulted by both Wise and other Zionist leaders.

A newly uncovered memo composed by the Zionist leadership’s chief representative in Washington on July 31, 1939, shows that Brandeis actively supported aliya in defiance of British policy as outlined in the May 1939 White Paper that severely limited the immigration of Jews to then British-run Palestine.

“Speaking on the question of the immigration he [Brandeis] said that Jews would continue to immigrate regardless of the White Paper,” the letter written by Isadore Breslau reads.

“When someone suggested that it was illegal, he said that the Jewish people considered it legal in view of the fact that any attempt to curtail immigration was in violation of the terms of the Mandate; that it may be considered illegal by Great Britain, but that we Jews considered it to be legal.”

The letter reveals that the widely respected jurist, who had just retired after nearly a quarter century on the court, held views on Jewish immigration to the Land of Israel that were in direct opposition to those of the British government, the Roosevelt administration and mainstream American Jewish groups and leaders.

“It is remarkable that a Supreme Court justice, who spent his whole career upholding the law, urged breaking the laws of America’s closest ally, England,” Medoff said. “Brandeis recognized how desperate the situation of Europe’s Jews really was, and the need for extraordinary measures – something that too many of the established leaders were incapable of understanding.

“For Brandeis, the law ultimately was not just words on a piece of paper, but had to relate meaningfully to real life.

“A law that doomed innocent Jews to their deaths could not be truly legal, not in the sense that Brandeis understood the law – and the campaign of taking Jews out of the Nazi inferno and smuggling them to freedom and safety, could not be illegal,” he said.

Brandeis died in 1941.