I met Justice Brandeis once, when I was about thirteen years old. His grandson was in my class at school, and I was invited to stay with his family at their summer house in Chatham, on Cape Cod. One day my classmate’s mother said, “We are going to visit the justice,” and we all went to Brandeis’s house nearby. He was sitting alone in a chair on the lawn, a formidable figure with a shock of white hair and blazing, deep-set eyes.
That was long ago, but I have never forgotten the image. Brandeis died sixty-eight years ago. His struggles against government corruption and financial concentration, which made him famous before he went on the bench, are lost to history. But his faith in a free, informed public remains a beacon of democracy.
We see him now as a great mind, perhaps the most brilliant of all Supreme Court justices; as a crusader against oversized institutions; and as a luminously eloquent exponent of free speech and privacy—“the right to be let alone.” But he was much more complicated: more conflicted, more interesting. At the beginning of his biography, Melvin Urofsky poses these questions:
How could the man who waxed eloquent on the limits of any one person to direct large operations …micromanage the American Zionist movement for several years? How could someone who felt so passionately about so many things appear to so many people as cold, austere, and indifferent? How often did his moral absolutism shade over into self-righteousness and intolerance of opposition? How does one square some of his extrajudicial activities with his own professed views on the limits of judicial office?
Urofsky, a professor emeritus of history at Virginia Commonwealth University, does not give final answers to those questions. Nobody could. But he explores the main themes and contradictions of Brandeis’s life and gives us a book that is utterly fascinating.
The Jewish question, for example. Brandeis was famously the target of anti-Semitism, but he lived an essentially non-Jewish life. He often had a pork chop for breakfast. From his birth in 1856 until 1914, Urofsky says, Brandeis never set foot in a synagogue. Then, on August 30, 1914, he was invited to a meeting in New York where the straggling leaders of the Zionist movement in America considered what could be done for Zionists suffering on both sides of the war in Europe. Brandeis listened—and took over the meeting and the movement.
He envisioned a future Jewish Palestine as a secular society that lived according to Jeffersonian values, with small farms and enterprises. One wonders what he would make of what Israel has become: a powerful, militarized state that, out of nationalism or necessity (depending on one’s view), suppresses and seizes the land of the Palestinians—whom neither Brandeis nor other early Zionists took into account.
Brandeis was a close friend of his law partner, Samuel Warren, coauthor of the seminal 1890 article in the Harvard Law Review “The Right to Privacy.” When Warren married the daughter of a Delaware senator, Mabel Bayard, who was strongly anti-Semitic, Brandeis was not invited to the wedding. In his letters he left no evidence, Urofsky says, then or later, of how he felt about being the target of such prejudice.
When President Wilson nominated him to the Supreme Court in 1916, eminent figures in what might later be called the Protestant establishment denounced him in terms that reek of anti-Semitism, although Brandeis’s religion was not actually mentioned by most of the critics. William Howard Taft, former president and future chief justice of the United States, wrote:
He is a muckraker, an emotionalist for his own purposes, a socialist, prompted by jealousy, a hypocrite, a man who has certain high ideals in his imagination, but who is utterly unscrupulous, in method in reaching them, a man of infinite cunning…of great tenacity of purpose, and, in my judgment, of much power for evil.
A. Lawrence Lowell, the president of Harvard (who later worked to restrict the number of Jewish students there), circulated a petition against Brandeis that was signed by a number of Boston Brahmins. Seven former presidents of the American Bar Association signed a letter that declared him unfit to serve on the Court. But Charles William Eliot, the great former president of Harvard, wrote to the Senate Judiciary Committee that he had known Brandeis for forty years, since his student days at Harvard Law School, and that Brandeis exhibited “a keen intelligence, quick and generous sympathies…and a character in which gentleness, courage, and joy in combat were intimately blended.”
Taft’s calling Brandeis “a socialist” is a clue to the fact that something more than his Jewishness underlay the hatred expressed. He was in fact the opposite of a socialist; he believed in small government as well as small business. But as a private lawyer he had challenged some of the pillars of capitalism, like the New Haven Railroad, for dubious practices; and they deeply resented it. He had also in Senate hearings attacked Taft’s honesty as president on a conservation issue.
His career in the private practice of law was unlike any other, to my knowledge, before or since. The small firm he founded with Sam Warren was immensely successful, and Brandeis became rich. But he and his wife, Alice Goldmark, lived modest, even spartan lives. (Judge Julian Mack, a good friend, joked that when you went to dinner at the Brandeises, you had to go on to a real dinner.) But Brandeis was extremely generous in gifts to charity and to family and friends; in his lifetime he gave away nearly $1.5 million, something like $30 million in current dollars.
As his practice developed, Brandeis increasingly declined to take fees and instead acted as what he called a lawyer to the situation, investigating and advising according to what he found to be the public good. Businesses that asked him to represent them found themselves in vigorous arguments over his refusal to accept their money. He also decided that he must compensate his firm for the time he took in unpaid work, and he paid the firm many thousands of dollars.
A leading journalist of the time, Ray Stannard Baker, described Brandeis’s impact on what had been a dull Interstate Commerce Commission hearing on railroad rates:
I remember the sudden change in the whole atmosphere…, the new electricity, when Mr. Brandeis’ tall, spare, rugged, slightly stooping figure arose in the middle of the room to dispute the claim of the railroads. Almost from the first sentence…one felt a new sense of breadth of grasp, sureness of understanding…. His large head with the stubborn black hair streaked with iron-gray…the striking, dark, strong face…. His face, indeed, at certain angles, and especially in repose, recalls almost startlingly one of the portraits of Abraham Lincoln.
In the early years of the twentieth century, Brandeis moved from a Boston reformer to a national figure. From 1910 on he was away from his Boston home for weeks at a time, dealing with labor disputes in New York, advising cabinet members after Wilson’s election in 1912, and, after 1914, running the Zionist movement from wherever he was. He wrote to Alice every day about what he was doing.
He was such a well-known national figure that his nomination to the Supreme Court was not exactly a surprise. But the negative response on the political right was stronger than Brandeis or Wilson had anticipated and there were times during the next four months when it seemed doubtful that the Senate would approve. On June 1 it voted to confirm Brandeis, 47–22. Justice Oliver Wendell Holmes Jr., an old friend, sent him a one-word telegram: “WELCOME.”
The Supreme Court that Brandeis joined was an extremely conservative institution, its dominant doctrine almost unrecognizable today even as Chief Justice John Roberts endeavors to turn back the clock. State regulation of economic activity was regularly struck down as a violation of the Fourteenth Amendment’s clause forbidding the deprivation of property without due process of law. That phrase, “due process of law,” might naturally have been read as a protection of procedural fairness; but the Court had made it into a substantive bar to regulation.
Thus in 1905, in the case of Lochner v. New York, the Court struck down a New York state law limiting bakers to sixty hours of work a week. The legislature had adopted it as a health and safety measure, but a 5–4 majority of the Court found that it violated the due process clause in denying the bakers and their employers “freedom of contract.”
The Lochner doctrine dominated the Supreme Court’s economic jurisprudence for decades. The Court used a different device when it overturned federal laws regulating economic activity. The Constitution gives Congress power over commerce among the states, but the Court limited that power to actual movement across state lines—so manufacturing, even for a national market, was not “commerce.”
That line of legal reasoning reached an apogee in the 1918 case of Hammer v. Dagenhart, striking down a congressional statute that banned child labor. Holmes dissented, joined by Brandeis and two other members of the Court. “It is not for this Court,” he wrote, “to pronounce when prohibition is necessary to regulation…—to say that it is permissible as against strong drink but not against the product of ruined lives.”1
Claims that efficiency justified the concentration of power did not impress Brandeis: he put freedom ahead of efficiency. When the Court in Myers v. United States in 1926 exalted presidential power on grounds of efficiency, he wrote in dissent that the Constitution had separated the federal government into three branches
not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.
The Court’s vetoing of state economic and social legislation touched another fundamental in the Brandeis philosophy: the Constitution’s preservation of the states as independent centers of power. Between 1920 and 1930, Urofsky reckons, the Court struck down 140 state laws, most often on the ground that they violated due process by invading private business. Brandeis warned that the Court was acting like a “super-legislature,” writing the justices’ own views into law.
His great statement of belief in the value of independent states came in 1932, in the case of New State Ice Co. v. Liebmann. Oklahoma, in an effort to limit business competition during the Depression, passed a law requiring anyone who wanted to make and sell ice to get a certificate of convenience from the state. A 5–4 majority of the Supreme Court held that the law violated the due process clause because the public interest was not a matter affected by ice. In dissent, Brandeis wrote:
Denial of the right to experiment may be fraught with serious consequences to the nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. This Court has the power to prevent an experiment…. [But] we must be ever on our guard lest we erect our prejudices into legal principles. If we would guide by the light of reason, we must let our minds be bold.
The Oklahoma law at issue in that case was not one that Brandeis as a citizen would have supported; he distrusted monopoly power. His dissent actually made clear his skepticism. The objections to the law, he said, “are obvious and grave.” But that did not affect Brandeis’s commitment to the states’ right to experiment. He did not let his private sympathies stand in the way of legal conclusions—far from it. Paul Freund, the great Harvard professor of constitutional law and a former Brandeis law clerk, observed that in a series of important majority opinions Brandeis incidentally rejected “the claims of a widow, an orphan, and a workingman.”2
Law clerks and other young people who met Justice Brandeis learned how serious he was in his commitment to the states. He would advise them to leave Washington and go home. A lawyer I knew in Washington in the 1950s, Joseph A. Fanelli, told me that he went to Washington from Harvard Law School in 1935. Sometime later he had a telephone call from the justice’s messenger, Edward Poindexter, saying that the Brandeises invited him for tea. Fanelli went to their apartment, was handed tea, and introduced himself when the justice came into the room. “What do you do, Mr. Fanelli?” “I’m with the Reconstruction Finance Corporation, Mr. Justice.” “Don’t stay too long!” Brandeis said, and moved on.
Fanelli was invited back once a year, and the same conversation occurred. He achieved such seniority that his wife (he had married) was asked to help pour the tea, and Fanelli was determined to break through the formula. When the justice said, “Don’t stay too long!” he quickly asked, “Why do you say that, Mr. Justice?” “Because, Mr. Fanelli, I believe that every man should get back to his hinterland.” “But, Mr. Justice, I come from New York. I don’t have any hinterland.” “That, sir, is your misfortune,” Brandeis replied. And moved on.
The relationship between Justice Brandeis and his law clerks was different from the intimacy noted in the chambers of Holmes and later Felix Frankfurter and William Brennan: more remote, colder. His first clerk, Calvert Magruder—who became a widely admired Federal Court of Appeals judge—said that “it was a bit disconcerting to see how he eschewed all frivolity, and sought to make every minute count for something worthwhile.” Dean Acheson was his law clerk (there was just one in those days) from 1919 to 1921. At Thanksgiving dinner with the Brandeises in 1921, the justice condemned the French for trying to renegotiate terms of their wartime loans, calling them “a wretched greedy lot at best.” Acheson wrote Professor Frankfurter that he was tempted to discuss French contributions to civilization at the end of the eighteenth century, “but I knew he would floor me by quoting their export statistics for the same years, so I gave it up.”
Paul Freund was the source of a well-known Brandeis law clerk story. A clerk working on a memorandum for the justice finished it at four or five in the morning. He took it out to the Brandeis apartment on Connecticut Avenue. As he slipped it under the door, he felt it being pulled in from the other side. Professor Robert A. Burt of Yale Law School commented, “Is it not striking that Brandeis would not open the door to greet, even perhaps to thank, his hard-working clerk?”3
Brandeis was intensely interested in facts. His clerks did research on facts as much as law. When the Court considered a case on presidential appointment power that involved the 1867 Tenure of Office Act, Brandeis had his law clerk, James M. Landis (who became the dean of Harvard Law School), go over the Senate journals of 1867 to see what the views of the times were. Landis spent months in the Library of Congress reading the journals page by page.
Brandeis even tried to get Justice Holmes, who read philosophy in the original Greek, to take more interest in facts. He urged Holmes to spend the summer break reading up on working conditions and visiting the textile mills in Lawrence, Massachusetts. A year later Holmes wrote Harold Laski that “in consideration of my age and moral infirmities, [Brandeis] absolved me from facts for the vacation and allowed me my customary sport with ideas.”
Freedom of speech posed a dilemma for Brandeis and Holmes. They told the Court, again and again, that it should be wary of imposing a constitutional veto on what governments did. Could they take a different view when government was restraining speech rather than, say, the ice business? At first they seemed to say no. Holmes wrote for a unanimous Court in 1919 upholding three criminal convictions for what was deemed to be antiwar speech during World War I. But then they changed, seeing free speech as the essential key to a free society. In a fourth 1919 case Holmes wrote a dissent, joined by Brandeis, that was the first great statement from the Supreme Court of the case for free speech. (“We should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death.”)
Brandeis squarely faced the question of speech and economic regulation in a 1920 dissent, in Gilbert v. Minnesota, that was not joined by Holmes. Joseph Gilbert had been convicted for making a pacifist speech. The First Amendment protected speech against repression by the federal government but not by the states. Brandeis, who so detested the use made of the due process clause to stop state economic regulation that he favored removing the clause from the Constitution, now urged that the “liberty” it protected should include freedom of speech:
I have difficulty in believing that the liberty guaranteed by the Constitution, which has been held to protect the right of an employer to discriminate against a workman because he is a member of a trade union…does not include liberty to teach…the doctrine of pacifism…. I cannot believe that the liberty guaranteed by the Fourteenth Amendment includes only liberty to acquire and enjoy property.
Five years later the Supreme Court adopted the idea that Brandeis had so savagely expressed: applying the guarantee of free speech to the states through the due process clause. The Court went on in later years to read the clause as applying to the states most of the restraints imposed on the federal government by the Bill of Rights, such as protections for defendants in criminal prosecutions.
Brandeis’s greatest free-speech opinion—many regard it as the most eloquent American rhetoric of freedom—came in 1927 in Whitney v. California. Anita Whitney had been convicted of “criminal syndicalism” for helping to organize the Communist Labor Party of California. Brandeis’s opinion repeatedly warned against fear:
Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears…. Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.4
Brandeis was a profound admirer of ancient Athens. Professor Freund pointed out that his Whitney opinion in part paraphrases Pericles’ funeral oration.
A question that has arisen about Brandeis since his death is whether some of his relationships while he was on the bench were proper for a judge. Urofsky does not duck it. One notable example was his relationship with Felix Frankfurter. Starting during his first term as a justice, Brandeis often asked Frankfurter to undertake work on social causes—and regularly sent him money to cover his expenses. Between 1916 and 1939, when Frankfurter was appointed to the Supreme Court, these subventions totaled $50,000, the equivalent of more than $1 million in current dollars. But Urofsky concludes that Brandeis never asked Frankfurter to do anything unethical.
Much more dubious, at least compared to what would be considered appropriate today, were some of Brandeis’s relationships with the Wilson administration. The attorney general, Thomas Gregory, visited him to discuss Justice Department business. President Wilson went to see him in 1917 to get his advice on how to end delays on the railroads in wartime. What if an issue arising from government treatment of the railroads had reached the Supreme Court? Would Brandeis have recused himself from the case? If he had, how would it have been explained?
Urofsky flatly condemns one extrajudicial activity. That was Brandeis’s agreement in 1921 to help former President Wilson draft a statement of progressive principles to be used at the 1924 Democratic convention. Brandeis apparently did not realize that Wilson, enfeebled by illness, was under the delusion that he could be the Democratic nominee in 1924.
One political excursion by Brandeis had large and immediate consequences: his opposition to President Roosevelt’s Supreme Court packing plan of 1937. Stung by the Court’s invalidation of early New Deal measures, FDR sent a message to Congress saying that the justices were old and overworked and proposing that he be given authority to add an additional member to the Court for each one over seventy, up to a maximum of six.
The plan seemed likely to pass. Roosevelt had just won reelection by a landslide, and in a Senate of ninety-six members there were just sixteen Republicans. But Senator Burton K. Wheeler of Montana, a renegade Democrat, heard that Brandeis was opposed. He went to see Brandeis, who sent him to Chief Justice Charles Evans Hughes. (Urofsky says Hughes had already been in touch with Wheeler.)
Two days later the Senate Judiciary Committee held a hearing on the plan, and Senator Wheeler himself testified. He reached into his pocket and pulled out a letter from Chief Justice Hughes, which Hughes said had the approval of Brandeis and one of the conservative justices, Willis Van Devanter. The Supreme Court was “fully abreast of its work,” Hughes wrote, shattering Roosevelt’s disingenuous claim that it was overworked. He added that putting more members on the Court would simply mean “more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide.”
It was devastating—a blow from which the Roosevelt plan never recovered. Tommy Corcoran and other Roosevelt aides bitterly blamed Brandeis. The justice, for his part, cooled in his feelings toward the President and even toward Frankfurter, who had supported the plan.
Was Brandeis out of bounds in helping to sabotage Court-packing? I do not think so. He put his regard for the institution of the Supreme Court ahead of other considerations. Ironically, though Roosevelt lost the political battle, he won the jurisprudential war. One week after Senator Wheeler produced the Hughes letter, the Supreme Court upheld a state minimum wage law, overruling an earlier decision. It went on that term to uphold federal economic power in broad terms. In May, Justice Van Devanter retired; Roosevelt replaced him with Senator Hugo L. Black, who had supported the packing plan, the first of many Roosevelt appointees.
The life of Brandeis, as explored in Urofsky’s remarkable book, had innumerable passages that amaze. An irreligious Jew suddenly, in the course of a meeting, became a passionate advocate of Zionism, and for years devoted much of his energy to that cause. Professor Urofsky captures the sweep and the details of that life with what has to be called devotion. More than half the book is about Brandeis’s pre-Court years—after all, he was fifty-nine when he was nominated—and one’s fascination may flag during discussions of the New Haven Railroad or savings bank life insurance. But Urofsky aimed for completeness, and his achievement is remarkable.
What are we to say about Brandeis the man? He cannot have been exactly congenial. He focused so ferociously on each of his objectives that they were given a moral urgency, overriding everything else. He was a Puritan. His law partner, George Nutter, thought he had no sense of humor. (Members of his extended family felt quite differently.)
But the human flaws are vastly outbalanced by the achievements and by the values that gave him a serenity hard to imagine. One of his colleagues on the Court, James Clark McReynolds, was an anti-Semite so vicious that he would sometimes walk out of the Court’s conference when Brandeis spoke. Brandeis never said a word about McReynolds.
Brandeis was an optimist, even in bad days like the Red Scare. He believed that if the public were informed in a free society, good sense would prevail in time. When Professor Zechariah Chafee narrowly escaped dismissal from Harvard Law School for defending free speech, Brandeis wrote him:
You did a man’s job. The persecution will make it more productive. By such follies is liberty made to grow; for the love of it is re-awakened.
I wonder whether even Brandeis could maintain his optimism in times like ours, when a significant part of the American population is committed to such lunacies as the belief that Barack Obama was not born an American. But we have had other times of unreason.
Brandeis died on October 5, 1941. Two days later, about fifty friends gathered in the Brandeis apartment. Dean Acheson said:
Truth was less than truth [to him] unless it was expounded so that the people could understand and believe. During these years of retreat from reason, his faith in the human mind and in the will and capacity of people to understand and grasp the truth never waivered or tired…. He handed on the great tradition of faith in the mind and spirit of man which is the faith of the prophets and poets, of Socrates, of Lincoln.
February 11, 2010
Holmes’s mention of “strong drink” was a reference to a wartime prohibition law, upheld by the Court. ↩
Paul A. Freund, “Mr. Justice Brandeis: A Centennial Memoir,” Harvard Law Review, Vol. 70, No. 5 (March 1957), p. 787. ↩
Robert A. Burt, Two Jewish Justices: Outcasts in the Promised Land (University of California Press, 1988), p. 12. ↩
The phrase “clear and present” referred to Holmes’s earlier formula that speech could not be repressed unless there was a “clear and present danger” of evil. Brandeis added the requirement of imminence. ↩