Justice Louis Dembitz Brandeis Guided by the Light of Reason
Commemorating the th birthday of the late Supreme Court justice and university namesake
Justice Louis Dembitz Brandeis Guided by the Light of Reason
Commemorating the th birthday of the late Supreme Court justice and university namesake Susan A. Pasternack
All materials within these pages are copyrighted. ÂŠ 2007 Brandeis University. All rights reserved. Printed in the United States of America ISBN 0-9620545-1-8 Front Cover: Louis D. Brandeis, c. 1916 Opening Pages: Louis D. Brandeis, c. 1914 Louis D. Brandeis, c. 1916 Official nomination of Louis D. Brandeis to the U.S. Supreme Court by President Woodrow Wilson, January 28, 1916 Frontispiece: Louis D. Brandeis, c. 1894 Closing Pages: Reply by President Franklin D. Roosevelt to official resignation of Louis D. Brandeis from the U.S. Supreme Court February 13, 1939 Pages 86, 95: Berks statue at Brandeis University, photos by Mike Lovett, university photographer Back Cover: Louis D. Brandeis. c. 1914 Design by Charles Dunham
1 Foreword In the Spirit of Brandeis 2
4 “Quickly Vanishing Shadows” Family Ties and Early Years
12 “This Splendid Institution” Harvard Law School 18 “A Practicing Lawyer” Beginning a Legal Career 24 “All Is Changed” Marriage and Family 30 “Abundant Opportunities for Usefulness” The People’s Attorney 36 “My Greatest Achievement” Savings Bank Life Insurance 42 “Reasoning from Life” The Brandeis Brief 46 “An Essay in Industrial Democracy” Achieving Peace in the New York Garment Industry 52 “Snakes in the Public Service” The Ballinger-Pinchot Affair 58 “Industrial Liberty” The New Freedom and Other People’s Money 64 “The Struggle Is Worthwhile” Zionism 72 “The Living Law” The Supreme Court Years 82 “Threads of Principle” Retirement 86 “The Aim Must Be High, the Vision Broad” Brandeis University 92
â€œThe opinion is now persuasive, but what can we do to make it more instructive?â€? Louis D. Brandeis
Foreword In the Spirit of Brandeis
Louis D. Brandeis never attended, supported, or even visited the university that bears his name. He died in 1941, and Brandeis University was founded in 1948. The founders thought long and hard about the naming of the university and knew that Brandeis was a name that carried great responsibility. Although the final naming decision was approved unanimously, founding Brandeis president Abram L. Sachar notes in A Host at Last that Albert Einstein cautioned, “Brandeis is a name that cannot be merely adopted. It is one that must be achieved.” In 1956, as Brandeis University prepared for the centennial anniversary of Louis D. Brandeis’s birth, Sachar and his colleagues began to collect, edit, and publish the Brandeis papers. Though never fully realized, the project provided a rich resource for the creation of this book. During the 2006–07 academic year, Brandeis University celebrated Louis D. Brandeis’s 150th birthday. The goals of the sesquicentennial celebration have been to bring the spirit of Louis Brandeis into the lives of our students and to reinvigorate our community with his remarkable life and accomplishments. Brandeis was such a “broad-gauged” man that the celebration encompassed a full year and offered our community many lenses through which to glimpse the man who inspires us always to seek truth— even unto its innermost parts.
It was fitting that we began the year with a question—posed to new and returning students: “What’s in a Name: Who Was Louis D. Brandeis and Why Do We Bear His Name?”
Jewish settlements in what was then called Palestine. The common thread for Brandeis was that each area he explored served to improve the lives and futures of ordinary people.
Each month, we provided students, faculty, and the other members of the Brandeis community opportunities to find out. Brandeisians experienced Justice Brandeis through the eyes of his grandchildren, his biographers, jurists, historians, scholars of Zionism, and filmmakers—even through the eyes of Andy Warhol, whose famous original portrait of the justice now resides in the Rose Art Museum.
If, indeed, a picture is worth a thousand words, this book speaks volumes. A labor of love, it was commissioned by an anonymous donor who was motivated by his knowledge and genuine respect for Justice Brandeis. Over the course of the sesquicentennial year, his enthusiasm has been boundless and infectious. His inspiration has captivated all of us who have worked to create this volume. I am confident that readers will experience the spirit of Justice Brandeis and the same inspiration as they enjoy this pictorial history of the life and times of Louis Dembitz Brandeis.
It has been a wonderful and unforgettable year. This commemorative book, which includes a copy of the documentary film Justice Louis D. Brandeis: The People’s Attorney, and our memories help us achieve another important goal of Louis Brandeis— to be trustees of history. In this case, Brandeis University has been entrusted with carrying forward the history, telling the story of the life and achievements of this revered individual whom we have come to know a little better this year. I hope that students and all who read this book gain something of Brandeis’s gift for living life not only well, but fully. As you read on, you will see that Louis D. Brandeis was able to turn himself into an expert on whatever captured his wide-ranging consideration, whether it was regulation of utilities and railroads, working conditions in the garment and other industries, affordable life insurance for working people, or the establishment of
Jehuda Reinharz President, Brandeis University
It has been nearly twenty years since I produced a pictorial history of Brandeis University titled From the Beginning. I never thought that good fortune would strike me twice, but it did when I was asked over summer 2006 to return to the university to research and write Justice Louis D. Brandeis: Guided by the Light of Reason.
be told fully and accurately. It was to Jules that I would turn with my discoveries of long-forgotten documents. I am indebted to Jules for guiding me on my journey. I couldn’t have wished for a better partner, nor could Louis D. Brandeis have found a more fervent champion.
I am grateful to many people who helped me along the way. Thanks to the Brandeis grandchildren— Frank Gilbert, Alice Gilbert Popkin, and Walter Raushenbush—who were willing to share their own remembrances and whose own lives are a testament to their grandfather’s legacy; Jonathan Sarna, the Joseph H. and Belle R. Braun Professor of American Jewish History at Brandeis, for reviewing the text and helping me to understand the complexities of the American Zionist movement; Michael Bohnen, president of the Adelson Foundation and, for many years, keeper of the flame at Nutter McClennen & Fish, the present-day incarnation of Brandeis’s law firm. I am indebted to the staff of the Robert D. Farber University Archives & Special Collections Department at Brandeis, headed by Karen Adler Abramson ’85, MA’94; librarians Tony Vaver, Victor Berch, MA’66, and Maggie McNeely; and P. J. Dickson, MA’07. Thanks to Danny Kahn ’07, who scanned nearly I was fortunate to have a special all the materials used in the book. partner in this work, Jules Bernstein, Special thanks to Peter Scott a 1957 graduate of Brandeis Campbell, librarian at the University University. I could not escape the of Louisville Louis D. Brandeis force of Jules’s energy and enthusiasm, School of Law Library, whose nor his dedication to ensuring that cooperation and support were greatly the story of Louis D. Brandeis would appreciated. Thanks to Meredith Dishaw, Meredith Roser, and Suzanne Yates of Brandeis; and to Kitty Gormley and Wendy Tebeau of Nutter McClennen & Fish, Joe Souza
The challenge was to find a way to contain the story of Brandeis’s remarkable life within a relatively short documentary history as part of the Justice Brandeis Jubilee, the university’s yearlong celebration commemorating the justice’s 150th birthday. Unlike other projects I have taken on, in this I encountered too much material to master, rather than too little. First order was to acquire a working knowledge of the justice’s life and then devise a way to organize it so that it would make sense to others. Brandeis left behind a vast archive, from news clippings pasted into scrapbooks to letters, pamphlets, and even maps, housed mainly in the Robert D. Farber University Archives & Special Collections Department at Brandeis University and the University of Louisville Louis D. Brandeis School of Law Library. I am indebted to the Brandeis family for making this material available to researchers and the public.
and Charlie Stuart of Charles Stuart Productions, William Gaffney Jr. and Darlene Nunes of Savings Bank Life Insurance of Massachusetts, Barbara Morley of the Kheel Center at Cornell University, B. J. Gooch of Transylvania University, and Jane Winton and Aaron Schmidt of the Print Department of the Boston Public Library. The members of the university’s Office of Communications really share credit for this undertaking, including senior vice president Lorna Miles, Carrie Simmons, Audrey Griffin, Theresa Pease, Rachel Silverman, Sossy Megerdichian, and especially Chuck Dunham, designer extraordinaire, whose vision for the book brought it to life and to whom I owe my role on the project. And special thanks to my family, Fred and Benjamin Weissman and Norma, Albert, and Hermine Pasternack. Unless otherwise noted, the images in this book are from the Robert D. Farber University Archives & Special Collections Department at Brandeis University and the Brandeis Archives at the University of Louisville Louis D. Brandeis School of Law Library. Family photographs courtesy of the Brandeis family. Susan A. Pasternack
“Quickly Vanishing Shadows” Family Ties and Early Years
Louis D. Brandeis was born in Louisville, Kentucky, on November 13, 1856. He was the fourth child of Frederika Dembitz and Adolph Brandeis, Jewish immigrants from Prague who, along with more than twenty members of their extended families, had fled their homeland in 1849. Disillusioned by the collapse of the Revolution of 1848, in which groups of citizens staged uprisings throughout Europe in pursuit of reforms to the social order, these liberal thinkers left the past behind for the sake of freedom. And while some of their unrealistic expectations were doomed to fail, they found a new life, a world of promise and possibility. The experiences that lay ahead tested their resolve, but in time also helped fulfill their hopes and dreams. Frederika and Adolph were members of the extended Brandeis, Dembitz, and Wehle families, distant relatives as well as neighbors in Prague. The Dembitz family traced its ancestry to Jews who had fled from Portugal to Holland during the Inquisition. The Brandeis family of Bohemian Jews claimed a history reaching back nearly four centuries. Frederika Dembitz was born in 1829, the first child and only daughter of Sigmund Dembitz, a surgeon, and his wife, Fanny Wehle. The births of sons Theodore and Ludwig followed. Frederika’s early life was marked by frequent uprooting as her father went in search of a home for his medical practice and his family. During this time of heightened nationalism
in the federations of Europe, the brilliant but eccentric Sigmund, a graduate of a Prussian medical school, was limited to practicing in the land where he obtained his degree. Although the family was able to settle for a time in a Polish town where Sigmund treated the local nobility, the Polish revolution of 1831 made life difficult because of the family’s origins, and they moved on to Prussia. Life changed forever for eleven-year-old Frederika with the accidental death of her brother Theodore in a fall, followed by the loss of her beloved mother from a stroke months later. The family never really found a permanent home. Frederika’s education consisted mainly of her father’s lessons, private tutoring, and short periods of formal education. With her mother’s siblings in Prague, Frederika finally found stability as well as good friends and access to the riches of art, music, and literature that the city and her family offered. Adolph Brandeis was born in Prague in 1822 to a well-established mercantile family who at this time owned a cotton-print mill. With increasing industrialization, the textile trade was experiencing great uncertainty as many factories that had relied upon handblock methods of printing textiles became unable to compete with firms that adopted machine technology. Although Adolph had hoped to become a chemist, financial considerations steered him to the local technical school, from which he received a certificate for studies in agriculture, estate management, and marketing. Unhappy in the family enterprise and with promise of little else in Prague, he set out for Hamburg, where he found work in the grocery business 5
Top: Brandeis at age two, in the earliest-known photograph of the future U.S. Supreme Court justice. Above: Frederika Dembitz Brandeis (1829–1900), c. 1865. Opposite: Louis D. Brandeis (right) with his brother Alfred, c. 1881. Despite the demands of his work, Brandeis remained close to his family throughout his life. He and Alfred exchanged letters almost daily from the time Brandeis began attending Harvard Law School until Alfred’s death in 1928.
“You want me to tell you about my life and about the lives of my parents . . . all these things take the form of shifting pictures, really more like quickly vanishing shadows.” From Reminiscences of Frederika Dembitz Brandeis, written for her son, Louis, in 1880 to 1886, translated by Alice G. Brandeis for her grandchildren in 1943
Above: The children of Frederika and Adolph Brandeis as young adults. From left, Louis, Fannie, Amy, and Alfred. (Identification of Fannie Brandeis and Amy Brandeis cannot be verified.) Right: Adolph Brandeis (1822–1906), c. 1865.
and through that position gained experience with foreign trade and facility in the English language. By this time Adolph and Frederika had fallen in love and become engaged. Adolph returned to Prague in 1848 with hopes of joining in the unfolding political events, but a case of typhoid fever kept him on the sidelines. With the collapse of the revolution, and with conditions less and less congenial for Jews, the future in Europe held little promise. Because of his familiarity with English and schooling in agricultural management, Adolph set sail alone for America to find a place where members of his extended family might settle and begin a new life. Through a family acquaintance, Adolph observed a sophisticated American world and was able to see for himself the promise that awaited. He wrote to Frederika, “I feel my patriotism growing every day, because every day I learn to know . . . this country better.”
process. Beset by doubts about their future, but eager to begin a new life, on April 8, 1849, twenty-six members of the Brandeis, Dembitz, and Wehle families set sail for America from Hamburg on the USS George Washington, the same ship that had brought Adolph months earlier. The émigrés included Frederika’s father, Sigmund, and brother, Ludwig, Adolph’s brother Samuel, Frederika’s aunt Eleanore and uncle Gottlieb and their twelve children, and other members of the Wehle family. Accompanying them were twenty-seven chests and boxes and two grand pianos, remnants of the life they were leaving behind. By summer 1849, with the farming idea abandoned, members of the families moved on from Cincinnati to Madison, Indiana, to build a store and starch factory in a location that
The families’ dream was to start a farm colony, a large enterprise in which all could participate and the profits of which all would share. Pursuing this idea on their behalf, Adolph found work as a farm hand in Butler County, Ohio. He found farming to be backbreaking and monotonous, unsuitable for the citified family he had left behind. In January 1849, Adolph secured a position in a grocery store in Cincinnati and eventually was offered a partnership. He declined, believing that an opportunity for his family to set up a business of its own lay here. Intrigued by the American manufacture of fine starch from corn, he wrote his family to research the
Below: Brandeis’s report card from the German and English Academy of Louisville. Bottom: Manifest from the USS George Washington, which brought twenty-six members of the extended Brandeis, Dembitz, and Wehle families to America in April 1849.
seemed well-suited to their plans, a site halfway between Cincinnati and Louisville, bustling with rail and river traffic. Madison was also free of the cholera epidemic that had swept this part of the country. Remaining behind in Cincinnati were Dr. Dembitz, to practice medicine, and his son Ludwig, now Lewis, to study law. On September 5, 1849, Frederika Dembitz and Adolph
Brandeis were married in Madison in a double ceremony that also joined Adolph’s brother Samuel and Lotti Wehle. Adolph and members of the Wehle family opened the G. & M. Wehle, Brandeis & Company store as well as the starch factory. But after two years the factory closed. Moritz and Gottlieb Wehle and their
families moved on to New York, where they found work and contentment in the large and bustling city. In 1851 Samuel and Adolph moved their families to Louisville, Kentucky, Samuel to practice medicine and Adolph to establish a business. By 1855 Adolph had joined Charles W. Crawford in the firm of Brandeis & Crawford, “a pioneer of the grain trade in the Ohio Valley.” At that time, a large German-
speaking community called Louisville and the Midwest home. Louisville was an important crossroads where the agriculture of the South met the industrial products of the North. It was into this up-and-coming family that Louis D. Brandeis was born in 1856, following sister Fannie in 1851, sister Amy in 1852, and brother Alfred in 1854. By this time Brandeis & Crawford
Left: The Louisville Male School medal Brandeis received his sophomore year for “preeminence in all his studies.” Below, left: Certificate of 1843 showing Adolph Brandeis’s completion of a course at the technical school in Prague. Below: Adolph Brandeis’s naturalization document, signed in Jefferson County, Kentucky, on July 24, 1848. Opposite: Pages from a notebook in which Brandeis liked to jot down quotations he found of interest.
owned a thriving grain and produce business as well as a flour mill, tobacco factory, farm, and river freighter. The family moved to increasingly larger houses as the business prospered, and the children grew up comfortably surrounded by friends and family. The Brandeis children enjoyed a happy childhood as the two brothers, Alfred and Louis, grew especially close, enjoying each other’s company, sharing typical boyish adventures, and forming a bond that would last throughout their lives. There were family visits to their Wehle relatives in New York from time to time and trips to places such as Newport, Rhode Island, and Niagara Falls. This was a family that cherished learning and culture, with books, art, and music a part of their daily lives, as well as a variety of outdoor pursuits. Louis began his formal education at Miss Wood’s School. He later attended the German and English Academy, which had been established by the German families who had settled in Louisville, and then went on to the Louisville Male School, where, at age sixteen, he was awarded a gold medal for preeminence in all his studies. Facing an uncertain American economy, by 1872 Adolph Brandeis recognized that the country was about to experience troubling times, so he decided to cut his losses, dissolve his firm, and take his family to Europe to travel and visit old friends until conditions in America improved. What was first envisaged as a brief sojourn of a year or so lasted three, and the family did not return to Louisville until 1875. They toured England, Germany, Austria,
Italy, and Switzerland. With the older children having already finished school, the family had planned for Louis to enter the Vienna Gymnasium to continue his formal education, but his Louisville schooling proved inadequate: he failed the entrance exam and spent winter 1872 in Vienna being tutored. He then journeyed on with his family through Italy and Switzerland, acquiring a different but valuable education along the way, an education that he would appreciate throughout his life. In 1873 Alfred returned to Louisville to find work while the rest of the family continued with their plans of enrolling Louis in school. But when Amy was stricken with typhoid fever in Milan, sixteen-year-old Louis had to get himself to Dresden. There he entered the Annen-Realschule and remained for three terms, taking courses in French, Latin, German, literature, mineralogy, geography, physics, chemistry, and mathematics. In March 1875 he was awarded a prize for diligence and good conduct. He later credited the education he received in Dresden with teaching him how to think, but he disliked the authoritarian and militaristic aspects of his schooling and missed the freedom he had enjoyed in the United States. The family returned to America in May 1875. On the way home, Louis accompanied Fannie to visit some friends in Brookline, Massachusetts, where he pursued the idea of attending Harvard Law School. An exciting new chapter was about to begin.
Above: Brandeis’s uncle Lewis Naphtali Dembitz (1832–1907) was a prominent Louisville attorney and leading member of the Jewish community. While attending the Annen-Realschule in Dresden, Brandeis began using the middle name of Dembitz rather than David. Later, in a letter to his nephew dated April 11, 1882, Lewis Dembitz remarked, “Last Friday your mother came to our house near 10 o’clock with President Eliot’s letter of appointment [to an interim Harvard Law School faculty position] in her hand, addressed to you as ‘Louis Dembitz Brandeis.’ It’s the first time that I felt glad at your changing your middle name from David to Dembitz. Your grandfather if he could know it would be but too happy in knowing that one bearing his name has achieved an academic office, for none had a greater veneration than he for anything connected with the university.” (Photograph, A History of the Jews of Louisville, Ky., Jewish Historical Society, New Orleans, 1901, Transylvania University Library, Special Collections.) Opposite: A handdrawn figure from the “stereometrie” pages of Brandeis’s notebook at the Annen-Realschule in Dresden.
“This Splendid Institution” Harvard Law School
“Law schools are splendid institutions. Aside from the instruction there received . . . to associate with young men who have the same interest and ambition . . . must alone be of inestimable advantages.” Brandeis in letter to Otto Wehle, March 12, 1876
issue of The Green Bag, a Useless but On September 27, 1875, Brandeis began classes at Harvard Law School, Entertaining Magazine for Lawyers, “To use the expression of one of the undertaking a course of study that professors, the case is ‘eviscerated’ . . . would shape his professional career and his life. He was not yet nineteen. When the end of the chapter of cases is reached, the student stands possessed of the principles in their Brandeis entered law school after full development . . . the principles completing three terms at the Annen-Realschule in Dresden, which have become a part of his flesh and blood. Like swimming or skating, offered a course of study far more once acquired, they cannot be advanced than that required for an forgotten, for they are a part of American high-school diploma. himself.” Brandeis thrived in this The student body of Harvard Law environment. Although one of School then numbered nearly two the youngest members of the class, hundred young men, most with undergraduate degrees. Brandeis was reputed by a schoolmate to have the keenest and most subtle This was a most propitious time to be mind. And as historian Philippa studying law at Harvard. The 1870 Strum has written, he had also arrival on the faculty of Christopher “fallen in love with the law.” Columbus Langdell, a former New York lawyer who would later become Brandeis’s decision to go to law Harvard Law School’s longest-serving school rather than undergraduate dean, established a more rigorous college seems to have been the and serious path to the study of law. In time he developed a new approach to legal studies that eventually would be adopted at law schools throughout the country. Langdell believed that the law was a science and should be studied as such. He raised the school’s admission requirements, established a carefully planned and thoughtful sequence of courses, and launched what became known as the case method of instruction. Prior to this time, students of law attended lectures that followed closely upon the reading of legal treatises. Little exposure was provided to actual court proceedings or opinions. For the new courses of study, Langdell selected and compiled cases for the students to analyze. As Brandeis later described the Harvard Law School’s case method in the January 1889
Below: During Brandeis’s time at Harvard Law School, classes were held in Dane Hall, named for benefactor Nathan Dane, a Beverly, Massachusetts, lawyer. (Photograph, The Green Bag, January 1889.) Opposite: Christopher Columbus Langdell (1826–1906) left the practice of law in New York City to join the Harvard Law School faculty in 1870. Appointed dean in 1875, Langdell revolutionized the study of law in the United States with his case approach, which included the “evisceration” of court proceedings and opinions to achieve a true understanding of the principles involved. (Portrait, Report of the Ninth Annual Meeting, Harvard Law School Association, 1895.)
result of his familyâ€™s fragile financial circumstances at the time. Questions remain as to why he chose Harvard. Brandeis may have been drawn there by a brief European acquaintance with Ephraim Emerton, a professor of German and ecclesiastical history at Harvard. According to an unpublished biographical account, Brandeis was befriended by the young professor in Cambridge, and the two frequently dined together. Brandeis also enjoyed the hospitality of law school and college faculty,
including fellow Kentuckian Nathaniel Southgate Shaler. It was an active social and intellectual life that Brandeis experienced in Cambridge and Boston, where he attended lectures by Ralph Waldo Emerson and Henry Adams and shared the company of the sons and daughters of New Englandâ€™s oldest families. Plays and readings were also among his diversions, and he continued pursuing an informal education in literature, history, and the arts.
A loan from brother Alfred enabled Brandeis to enroll at Harvard. Mention is also made of a bond posted by local merchant Jacob Hecht in support of the young student’s enrollment. Brandeis intended to apply for a scholarship his second year, but law school professor Charles Saunders Bradley, former chief justice of Rhode Island, suggested that tutoring might be more profitable and offered his own son as the first student. The work
suited Brandeis well and proved rewarding. Financial relief also came in spring 1877 when President Charles W. Eliot appointed him a dorm proctor to replace Emerton, who had married. By the end of 1878, Brandeis had repaid his brother’s loan and saved enough to invest in a railroad bond, which he is said to have held onto for many years. One of the side effects of Brandeis’s studies was eyestrain, a condition prevalent among those who read long hours by gaslight. The eyestrain grew
in severity during the summer following his first year at Harvard while he was in Louisville reading law with his sister Amy’s future husband, Otto Wehle. After being examined by several doctors, each of whom prescribed an end to his study of the law as the cure, he visited an occulist in New York recommended by his father. Dr. Knapp found nothing more serious than overuse and remarked, “It won’t hurt you to read less and think more.” Returning to
Left: Letter from Charles W. Eliot, president of Harvard, confirming the appointment of Brandeis as instructor in evidence while Professor James Bradley Thayer was on leave. In one of Brandeis’s law school notebooks, he refers to the course as “that neglected product of time and accident.” It was at Thayer’s home that Brandeis heard a lecture by Ralph Waldo Emerson. Below, left: The Pow Wow Club was the student-run organization to which Brandeis belonged during his time at Harvard Law School. As in the moot courts of today, students argued cases for practice, with some students serving as counsel and others as judge. In a November 12, 1876, letter to his future brother-in-law Otto Wehle, Brandeis wrote that he prepared for the courts as thoroughly as he did for his professors’ classes. Opposite, left: The cover of the notebook Brandeis used for the course in “Pleading” taught by Christopher Columbus Langdell. Opposite, right: Brandeis’s handwritten annotations to Langdell’s Select Cases on Sales. Brandeis later sent sections from his well-used case books to his daughter Susan during her study at the University of Chicago Law School.
school for the fall term, Brandeis found agreeable friends to read cases to him, which required him to make good use of an already remarkable memory, one that he would employ throughout his long legal career. It was noted on more than one occasion that he was able to present a lengthy and complicated argument without even once consulting notes. Among his readers at Harvard was Samuel D. Warren Jr., a member of a prominent Boston family. Warren was second only to Brandeis in class rank, and the two became close friends.
Above: Oliver Wendell Holmes Jr., c. 1896. As an active alumnus of Harvard Law School, Brandeis helped raise funds for an endowed chair for Holmes, which he occupied as professor of law on January 23, 1882, before succeeding Justice Horace Gray on the Supreme Judicial Court of Massachusetts. In 1902 Holmes would again succeed Gray, this time as associate justice on the U.S. Supreme Court. (Photograph, Men of Progress: One Thousand Biographical Sketches and Portraits of Leaders in Business and Professional Life in Boston, 1896.) Right: The official notice of Brandeis’s admittance to Harvard Law School by the bursar of the university, dated September 27, 1875, and receipt for expenses incurred during Brandeis’s second year. Opposite: Photograph of Brandeis thought to have been taken in 1875, when he was a student at Harvard Law School.
In spring 1877, at the conclusion of the normal two-year course of study, as the students were preparing for graduation, Brandeis was chosen to be class orator. But he would not reach the age of twenty-one until November and, according to university regulations, no one under twenty-one could graduate from the law school. Dean Langdell referred him to President Eliot, who confirmed the school’s rules and sent
Brandeis on his way. But Eliot apparently rethought his decision and, after calling a brief meeting of the Harvard board of trustees, allowed Brandeis to graduate with honors. The oration, however, was delivered by another student. Brandeis returned the following fall for a year of graduate study. Harvard Law School remained a special place for Brandeis throughout his life, and he repaid his alma mater with his intellect, devotion, and resources. In 1882 Brandeis secured a generous donation from one of the students he had tutored, William Weld, to endow a professorship at the law school for Oliver Wendell Holmes Jr., then in private practice. The young Brandeis had met Holmes through Samuel Warren. Brandeis remained active in the affairs of the law school and in 1886 helped found the Harvard Law School Association. In recognition of his dedication and hard work, he was inducted into Phi Beta Kappa in 1890 and awarded an honorary master’s degree the following year. He also assisted the founders of the Harvard Law Review, serving as the publication’s first treasurer and remaining a trustee until being appointed a justice of the Supreme Court in 1916. As a young attorney, he hired associates from Harvard Law School, and he employed Harvard Law School graduates as his clerks throughout his twenty-three years on the Court. With his education completed and law degree in hand, Brandeis found himself at an important crossroads in his life. Decisions awaited on whether he would choose to practice or teach law and on where he would settle to make his mark.
In 1968 Harvard Law School established the Louis D. Brandeis Professorship of Law, “in recognition of his distinguished career as a lawyer and judge, and his service to his country and particularly to its legal order.” Incumbents to the Brandeis chair are selected on the basis of “contributions to teaching and scholarship in urban legal studies, reflecting Brandeis’s concern with the many problems that inhere in an urban, industrial society.” 17
“A Practicing Lawyer” Beginning a Legal Career
Many opportunities awaited Brandeis fresh out of Harvard Law School in June 1878. He had returned to Louisville each summer to read law in the office of his future brother-inlaw, Otto Wehle, and likely discussed the future with his family. They hoped he would return to Louisville, where his uncle Lewis Dembitz was a well-respected lawyer and where family connections would provide clients. From St. Louis came an invitation from his sister Fannie, whose husband, Charles Nagel, was practicing law and eager to have his young brother-in-law at his side. Boston was advanced by Samuel Warren, his former Harvard classmate, who was then clerking in the office of Shattuck, Holmes & Munroe but eagerly looked forward to opening his own practice.
The St. Louis of 1878 differed greatly from the world Brandeis knew in Cambridge and Boston. It was still a frontier town in many ways, and he found the diversions disappointing compared to what he had enjoyed in New England. Although he also seemed disappointed with the law he was practicing, the experience he gained with a variety of cases laid the foundation for methods that would later distinguish his legal career. The first printed brief over his name was filed in the Circuit Court of St. Louis, June Term, 1879, in a case titled Martin Michael v. Joseph H. Locke, Lunatic, and Richard D. Lancaster, Guardian of Joseph H. Locke. But even with the variety of work and the attentions of Fannie and Charles, the young lawyer was not happy in St. Louis.
By fall 1878 Brandeis had settled on St. Louis, accepting an offer from a firm headed by James Taussig, a position that Charles Nagel found for Brandeis despite his own disappointment at not luring his brother-in-law to D’Arcy & Nagel. The decision was not an easy one, as Frederika acknowledged in a reply to her son’s letter of August 2, 1878: “I am convinced that whatever you will undertake is going to be of advantage to you as a step in your development. So I am leaving everything to you in happy confidence and give you my blessings.” He delayed the trip and stayed the summer to tutor Judge Bradley’s son at home in Providence. In late September he finally set out for St. Louis, and in November he was admitted to the Missouri Bar.
During his time in St. Louis, Brandeis maintained a long-distance correspondence with Samuel Warren. Despite working in an established and distinguished firm, Warren continued to dream of setting up his own practice. Knowing that Brandeis would need income during the early days, Warren presented the possibility of combining law practice with the editorship of a law journal. For a while, this had some appeal, but Brandeis eventually came around to a more realistic view and replied to Warren on May 30, 1879, “Although I am very desirous of devoting some of my time to the literary part of the law, I wish to become known as a practicing lawyer.” He had chosen to return to Boston. Although Charles and Fannie regretted losing the company of their beloved brother, they understood that he would not be happy remaining in St. Louis. “You cannot blame us 19
Above: Samuel D. Warren Jr., c. 1900. Brandeis corresponded from St. Louis with Warren about the possibility of setting up a law practice in Boston. Opposite: Attorney Louis D. Brandeis at his desk, c. 1900. The firm of Warren & Brandeis was founded in July 1879 and leased its first office at 60 Devonshire Street. Brandeis’s law office was sparsely furnished, and it was said that in the winter the temperature was set so low that visitors had to wear their overcoats.
for feeling the one regret,” wrote Nagel, “that you are to a great extent lost to the family, and to Fannie and me and the boy [their son, Alfred] particularly.”
Above: Following law school, Brandeis decided to move to St. Louis, where his sister Fannie lived with her husband, Charles Nagel, of the firm D’Arcy & Nagel. Brandeis chose not to practice with Nagel and asked his brother-in-law if he might find him a suitable position. Nagel wrote to Brandeis on July 10, 1878, about an opportunity in the office of James Taussig. Right: In a letter dated September 7, 1901, Samuel Warren looked back upon his friendship with Brandeis, saying, “The best thing I ever did was done in 1879—when I induced you to come to us in Boston. You have been, I think, inexpressibly valuable in all our lives . . . You have encouraged our right impulses. In many ways you are a better example of New England virtues than the natives.” Warren died on February 18, 1910, an apparent suicide.
With help from his professors at Harvard, Brandeis was offered a position as clerk to Chief Justice Horace Gray of the Massachusetts Supreme Judicial Court (later an associate justice of the U.S. Supreme Court). Brandeis needed to gain admission to the Massachusetts Bar, but the exam was not scheduled until the following fall. Justice Gray arranged to have Brandeis admitted in July 1879 “without an examination and contrary to all principles and precedent,” as Brandeis wrote in his ongoing correspondence with his brother Alfred. Since Warren was the senior, at least in Massachusetts Bar membership, by custom it was appropriate to have his name appear first. Brandeis combined working alongside Justice Gray each morning with afternoons given to practicing in the law offices of Warren & Brandeis.
The firm of Warren & Brandeis got off to a promising start. Warren’s family connections in Boston and New York brought clients, and there were referrals from Judge Bradley and others on the Harvard Law School faculty. The firm was counsel for the Warren family business, S. D. Warren & Company, a large paper manufacturer with deep roots in New England. Brandeis also represented entrepreneurs of small retail and manufacturing firms, most of whom were members of the local Jewish community. It was not all work for the young attorneys. Brandeis joined clubs and organizations for personal as well as professional reasons. He was a member of the Union Boat Club, served as secretary of the Boston Art Club, and frequented the Turnverein, an athletic club. He was admitted to the Exchange Club and Union Club, where he often lunched and enjoyed lively conversation. He loved walking and was devoted to canoeing and horseback riding.
The two young lawyers found space at 60 Devonshire Street, in the heart of Boston’s retail and business district. “We have taken a room,” Brandeis wrote to Charles Nagel, “No. 60 Devonshire Street (desirable location) in the 3rd story (2 flights) . . . only $200 a year—very cheap everybody says.” Both Warren and Brandeis were then living nearby on Beacon Hill, within easy walking distance of both their new law office and Justice Gray’s chambers in the Supreme Judicial Court.
Left: Brandeis was admitted to the Massachusetts Bar on July 29, 1879. Harvard Law School professors helped him secure a position with Chief Justice Horace Gray of the Massachusetts Supreme Judicial Court. Brandeis would clerk for Justice Gray in the mornings and practice law with Samuel Warren in the afternoons. Below, left: On September 22, 1878, St. Louis lawyer James Taussig wrote to Brandeis regarding a position in his firm. Brandeis arrived in St. Louis in November, was admitted to the Missouri Bar, and set up practice in Taussigâ€™s law offices at 505 Chestnut Street. Below, center: The Union Boat Club was one of several Boston organizations that Brandeis joined. Below, right: The first printed brief to appear over the Brandeis name was for the Circuit Court of Missouri and concerned the collection of $2,932.25 on behalf of Martin Michael for firewood used in a business belonging to Joseph Locke.
of the Wisconsin Central Railroad, The Warren & Brandeis partnership prospered, but ended upon the death had hired Judge Jeremiah Smith of New Hampshire, Story Professor of Warren’s father when Samuel of Law at Harvard, as senior counsel moved on to head S. D. Warren & before the Supreme Court and Company. Brandeis continued to Smith invited Brandeis to assist in advise his former classmate and partner on trust and business matters. preparing the brief as junior counsel. Though the partnership was dissolved Normally, the junior counsel would not argue the case, but when in 1889, the firm remained Warren Smith failed to reach Washington in & Brandeis until 1897, when time, Brandeis’s admission to the the name was changed to Brandeis, Supreme Court had to be expedited. Dunbar & Nutter to reflect the Wearing a borrowed frock coat, young attorneys who had been Brandeis successfully argued the case recruited from Harvard Law School. and was subsequently hired as eastern Warren and Brandeis remained counsel for the Wisconsin Central friends until Warren’s death in 1910. Railroad. He remained so until 1905. Warren always spoke fondly of his law partner and in a letter to The young Brandeis was well on his Brandeis dated September 1901 way to achieving professional success. said, “The best thing I ever did was Finding happiness in his private life done in 1879—when I induced you would follow. to come to us in Boston.” Though no longer partners in practice, Warren and Brandeis collaborated on three articles for the Harvard Law Review: “The Watuppa Pond Cases” in 1888, “The Law of Ponds” the following year, and in 1890 “The Right to Privacy,” a response to the intrusions into Warren’s marriage to Mabel Bayard, daughter of U.S. senator Thomas Francis Bayard Sr. The young couple and their family’s social life captured the interest of local gossip columnists, which Warren found troubling. Brandeis reluctantly agreed to work with Warren on the piece. Harvard Law School dean Roscoe Pound later observed that the article did “nothing less than add a chapter to our law.” In November 1889 Brandeis argued his (and the firm’s) first case before the U.S. Supreme Court in Wisconsin Central Railroad v. Price County over land rights. The previous summer, Edwin H. Abbot, president 23
Below, left: An informal invitation to Brandeis from Oliver Wendell Holmes Jr. Although Holmes was Brandeis’s senior by fifteen years, the two enjoyed a long friendship, highlighted by their time together on the U.S. Supreme Court. Below, right: Brandeis’s first brief prepared for the Supreme Judicial Court of Massachusetts in the matter of United Hebrew Benevolent Association v. Joshua Benshimol. (Courtesy, Nutter McClennen & Fish, LLP.) Opposite: The December 15, 1890, issue of the Harvard Law Review included an article by Brandeis and Warren on “The Right to Privacy,” which was a counterattack by Warren for what he felt was an invasion of his family’s privacy by the gossip columnists of the local newspapers.
“All Is Changed” Marriage and Family
“For seventeen years I have stood alone, rarely asking, still less frequently caring for the advice of others,” Louis Brandeis wrote to his fiancée, Alice Goldmark, on October 2, 1890. “I have walked my way all these years but little influenced by any other individual. And now, Alice, all is changed. I find myself mentally turning to you for advice and approval, indeed, also for support, and I feel my incompleteness more each day.” These words are the outpourings of a young man who had established himself in his chosen profession and enjoyed the companionship of good friends, but knew that something was missing from his life. In March 1890 Brandeis returned to his family in Louisville upon the death of his sister Fannie. She had entered into a deep depression following the birth of her daughter, Hildegard, and eventually took her own life after she learned of the death of her young son, Alfred, from typhoid fever. While there, Brandeis visited his uncle Dr. Samuel Brandeis and Samuel’s wife, Lotti, whose houseguest, Brandeis’s second cousin Alice Goldmark, was stopping on the way back from a trip out west. Although Louis and Alice had met over the years on other family occasions, no special relationship had developed between them. This time was different.
Alice was born in New York City in 1866 to Dr. Joseph Goldmark and his wife, Regina Wehle, a member of the extended Dembitz, Brandeis, and Wehle families who had fled Prague for America in 1849. Brother of the composer Carl Goldmark, Alice’s father was a trained physician and chemist and the codiscoverer of red phosphorus. As a faculty member of the University of Vienna, Goldmark had been an active supporter of the Revolution of 1848. When Theodor Latour, Austrian minister of war, was assassinated, Goldmark was indicted for treason and complicity in the murder, although he had taken no part. He fled the country, going first to Switzerland and then to America, where he arrived in 1850. (Later, after Emperor Franz Josef declared a general amnesty in 1867, Goldmark returned to Austria to clear his name. He stood trial, and the indictment was dismissed.) The summer following Fannie’s death, the Brandeis and Goldmark families vacationed together in New England, where the feelings first kindled in Louisville deepened. “We have found each other,” Alice wrote. Louis told his close friends of his new interest. The couple exchanged letters, and Louis spent weekends at Alice’s home in New York. Alice and Louis were married in a civil ceremony on March 23, 1891, by her sister Helen’s husband, Felix Adler, founder of the Ethical Culture Society. In preparation for the start of their new life, Brandeis purchased a narrow brick house at 114 Mount Vernon Street in Boston, next door to his friends the author Margaret Deland and her husband, Lorin, and 25
Top: Invitation to the wedding of Alice Goldmark and Louis Brandeis on March 23, 1891. The civil ceremony was conducted by Felix Adler, the founder of the Ethical Culture Society and husband of Alice’s sister Helen. Above: Alice Goldmark, c. 1891. Alice and Louis shared a love of books, often reading aloud in the evening. Opposite: Elizabeth Brandeis (left) age four, and Susan Brandeis (right), age seven, 1900.
still within walking distance of his office. With the help of Lorin Deland, he hired carpenters, paperhangers, and other contractors and added a fourth floor to the structure. Even then he set the tone for how simply the couple would live. “I don’t want the cost of alterations to reach too high a figure. I vow we shall compensate for these extra expenses by economies in the time to come.” And they did. After a two-week honeymoon in Bolton Center, Massachusetts, the couple arrived in Boston. In their absence, Brandeis’s close friend Elizabeth “Bess” Glendower Evans had unpacked Alice’s trunks and set up their new home. The friendship between Bess and the Brandeis family would remain close throughout their lives, until Bess’s death in 1937. In 1900 they sold their Mount Vernon Street home and rented quarters at 6 Otis Place, two doors from Bess Evans. Addressing their long friendship, in September 1935 Bess wrote, “You have made a new thing of friendship and loyalty—all your own—I [shall] never forget.”
Top: Alice Brandeis’s mother, Regina Wehle Goldmark (c. 1837–1924), was one of the twenty-six members of the extended Dembitz, Brandeis, and Wehle families who fled Prague in 1849. Above: Alice Brandeis’s father, Joseph Goldmark (1818–1881), was a physician and chemist on the faculty of the University of Vienna when the collapse of the Revolution of 1848 forced him also to leave the country; he arrived in America in 1850. (Images from Josephine Goldmark’s The Pilgrims of ’48: One Man’s Part in the Austrian Revolution of 1848 and a Family Migration to America, Yale University Press, 1930.)
Despite the dedication to frugality, the Brandeis family lived well but without ostentation. Alice shopped at fine stores, and Louis enjoyed the pleasures of canoeing and horseback riding. Yet he still walked to his office in downtown Boston, long after most people drove cars. In the evenings, they entertained guests, or Alice read
aloud to her husband; together they enjoyed a wide range of books, from histories and novels to mysteries. The young family welcomed the birth of their first child, daughter Susan, on February 27, 1893, followed by Elizabeth (named after Elizabeth Glendower Evans) on April 25, 1896. When his daughters were old enough, Brandeis enjoyed their company at breakfast each morning and shared his love of reading aloud. The family spent spring and fall weekends in Dedham, a Boston suburb where first they rented and then purchased a house. Along with Sam Warren, Brandeis was a founding member of the Dedham Polo Club, where he kept horses. The family drove out on weekends in a sort of open wagon, and Brandeis reserved Sundays for outdoor activities with his daughters, including rowing and playing tennis and croquet. After schooling in Boston, Susan completed her undergraduate education at Bryn Mawr College and then attended the University of Chicago Law School, one of the few first-rate institutions that would then enroll women. Elizabeth attended Radcliffe College before pursuing graduate work in economics at the University of Wisconsin. A man with a thriving law practice, good friends, and a loving family, Brandeis could have settled down to the comfortable life of the well-to-do in late-nineteenth-century Boston. Instead, he chose another path.
Above: During their engagement, Louis and Alice met on weekends at her home in New York and exchanged letters during the week. On October 12, 1890, Louis wrote, “Alice, Alfred was wrong in saying I am ‘very much in love.’ No, this is not a passion not a fever into which I have fallen. It is that I love you. . . .” Above, right: In preparation for his marriage to Alice, Louis hired contractors to ready the house he had purchased at 114 Mount Vernon Street on Beacon Hill in Boston; this receipt from W. J. Fitzpatrick, Practical Plumber, is for installation of a water closet. Right: Interior of the Brandeis home.
Above: Alice Brandeis with her daughters Susan (left) and Elizabeth (right) c.1908. Above right: Elizabeth “Bess” Glendower Evans (1856–1937), c. 1905. Bess and her husband, Glendower, met Brandeis in 1884 at the home of a Harvard professor and dined together frequently. When Glendower died at age thirty in 1886, the relationship continued, and Bess became a lifelong friend of the entire Brandeis family. Above, far right: Alice Brandeis, c. 1893, the year she gave birth to Susan. Right: Susan Brandeis as a student at the University of Chicago Law School, 1916.
“The mere fact that a man or a woman chances to be wealthy, and acquainted with the Brandeis family, of itself will not secure an invitation to one of [their family] dinners. Neither will one’s lack of fortune place one outside the list of possible guests. The whole question is settled by one’s interest in publicservice problems. Those favored to gather around the Brandeis table during the daily dinner hour must be able to discuss intelligently some problem of the day.”
Below: Brandeis with his canoe near his home in Dedham, Massachusetts, c. 1908. Brandeis enjoyed an active childhood outdoors and continued to enjoy horseback riding, canoeing, and walking throughout his life.
Boston American, September 29, 1912
“Abundant Opportunities for Usefulness” The People’s Attorney
Brandeis’s thriving law practice, social circle, and own personal interests found outlet in civic improvement at a time when new social problems and challenges became the order of the day. His assistance was sought on a variety of local issues, from liquor regulations to taxation to laws relating to Boston’s poor. New organizations like the Good Government Association were dedicated to uncovering corruption and shining a “searchlight” on unethical practices that had become routine around Boston City Hall.
Two local issues, public transportation and gas utilities, became touchstones for the civic reforms that Brandeis would champion and for the influence he had as the public’s counsel. In 1893 he entered the fray over control of the city’s system of public transportation. Boston’s enormous growth and limited real estate had made developing an efficient public transportation system a critical civic issue. But when the West End Street Railway decided to run track across the Boston Common, Brandeis was among those who protested signing away public parkland to a private business. The franchise was denied.
Early on, Brandeis developed a deep commitment to social justice, which he discharged in representing those Until 1897, private franchises over who had no organized voice, the public streets were kept in check. public. As he wrote in “The But with congestion in the Opportunity in the Law,” presented downtown business and retail district to the Harvard Ethical Society on on the rise, private companies had May 4, 1905, “Every legitimate slowly begun to secure franchises to occupation, be it profession or business or trade, furnishes abundant construct surface trolley lines. The congestion continued to worsen, and opportunities for usefulness . . . in 1897 a new company, the Boston Instead of holding a position of Elevated Railway, convinced the independence, between the wealthy legislature to grant it long-term and the people, prepared to curb the franchise rights to operate on many excesses of either, able lawyers have, of the city’s important streets at rates to a large extent, allowed themselves that would not drop below five cents to become adjuncts of great a ride for more than two decades. corporations and have neglected the obligation to use their powers for the protection of the people. We hear When Brandeis learned of this, he much of the ‘corporation attorney’. . . immediately called for public protests, arguing against sacrificing the and far too little of the ‘people’s interests of the public for the benefit attorney.’” In his early days of of a single corporation. For Brandeis, representing the public, Brandeis Boston Elevated was endeavoring donated his fees to charity. But as time went on and public-interest law to establish a monopoly that would came to consume increasing amounts constrain and limit options for generations to come. Organizations of his time, he refused fees and to block private control of public even reimbursed his law firm for the transportation were formed, as local hours that he spent on the work that brought him personal fulfillment merchants, manufacturers, and small businesses joined together in but no remuneration. 31
Above: The Associated Board of Trade and the Public Franchise League distributed a variety of pamphlets in support of their position on the subway franchise. Opposite: The November 15, 1905, edition of Hearst’s Boston American featured a cartoon depicting the crisis over public utilities and the transportation system. Over the course of more than a decade, the “people’s attorney” represented the public interest in nearly every battle involving fair treatment for the citizens of Boston.
Below: In public hearings before the legislature, Brandeis presented his solution for consolidation of local gas and electric services that avoided both private and municipal ownership of the utilities. Brandeis modeled the plan on the London sliding-scale system, and it was adopted in Boston in 1906. Opposite: An article in Hearst’s Boston American of September 29, 1912, depicted a “typical” day in the life of the public-minded attorney. Initially, Brandeis donated the fees from his work on the public’s behalf to charity, but later he refused fees and reimbursed his law firm for the time this work took away from his billable hours. Despite the hyperbole, the piece does pay tribute to the extraordinary person who is credited with establishing the practice of public law in the United States.
the Public Franchise League and the Associated Board of Trade. Brandeis was a member of both groups and represented the Board of Trade before the Committee on Metropolitan Affairs. Among the prominent members of the groups was Edward A. Filene, whose family owned a large downtown department store. A Brandeis client, Filene had publicspirited interests that mirrored those of his counsel. With Filene directing the publicity efforts, the league rallied its forces, sending out hundreds of letters to legislators to oppose the granting of franchises to Boston Elevated. The debate waged on through 1900 and into 1901, with Boston Elevated offering to pay for the building of the subway while agreeing to turn it over to the city in return for a fifty-year lease. Through the work of the league, Governor Winthrop Crane was convinced of the damage the plan would inflict on
the public, and he vetoed the legislation. The veto was sustained in both houses of the Massachusetts legislature. For Brandeis, winning the battle against Boston Elevated involved the design, mastery, and implementation of strategies that he would employ time and again thereafter in his public-interest work. The techniques included mobilizing like-minded citizens and providing them with the necessary strategies and tactics to support their cause; gaining the support of prominent citizens; and encouraging friendly journalists to publicize their ideas. To Brandeis, these methods were all part of developing an educated public, as well as winning battles. The fight on transportation wasn’t over, and in 1902 Brandeis once again opposed Boston Elevated over its campaign for a new subway under Washington Street. At the final committee hearings on April 14, 1902, the counsel for Boston Elevated presented a “cloud of figures” to show that the company was losing money and could not function under the Board of Trade’s proposed bill, a ploy intended to give the opposing counsel no time to respond. They had underestimated their adversary, who was ready with his own “cloud” of statistics showing that Boston Elevated had increased its dividends to stockholders and significantly raised the value of its stock. The legislature was so impressed with the case Brandeis made that it passed a bill incorporating the league’s provisions, which authorized Boston Elevated to lease the Washington Street subway for twenty-five years at 4.5 percent of cost, while construction and ownership 32
remained with the city. Skirmishes over municipal ownership of public transportation and private leases arose again in 1905, 1906, and 1911. For Brandeis, this was a turning point. He later called the battle for Boston’s transportation system his first important public work.
Above: Brandeis was politically active, and hints of a run for mayor as a reform candidate would surface from time to time, though he never chose to represent the people as an elected official. Opposite: Bribery of public officials was commonplace in Boston city government at the time. Brandeis’s solution for rooting out corruption and greed in municipal government was to turn a “searchlight” on city hall.
Other local causes emerged. In 1903, the Massachusetts legislature passed a bill allowing eight gas companies serving Boston and nearby Brookline to combine as Boston Consolidated Gas Company in the hopes of ending costly duplication of services and in the process making the enterprise more efficient and prices more reasonable for consumers. The new corporation was granted the right to issue stock up to an amount equal to the “fair value” of the company’s assets. Fearing monopoly and stock watering (a practice in which stocks and bonds are sold greatly in excess of the value of the company), the Public Franchise League opposed the bill. Brandeis was not initially involved in the matter, but joined at the urging of the league. The new gas company claimed properties worth $24 million, with fair value set no lower than $20 million. The Franchise League, however, estimated the fair value at closer to $15 million and considered any higher valuation would be due to high rates charged to customers. Boston Consolidated retorted it could not operate unless it charged $1 per thousand cubic feet of gas. At issue were both capitalization figures and rates for consumers. Brandeis favored neither private nor municipal ownership of the utility and thought a new approach
was needed. He believed that dividends paid on surplus should be no greater than the rate at which money could be borrowed, but also that dividends on capital invested should be commensurate with the risk assumed. This stance pleased neither the Public Franchise League nor Boston Consolidated, which was supported in this effort by Boston Elevated. Brandeis had been studying the London system of sliding-scale utility rates, in which utilities lowered rates to customers and then earned the right to raise dividends to stock-holders. This plan provided an incentive for greater efficiency, the goal of combining the various companies in the first place. Brandeis met with the chairman of the board of Boston Consolidated, James Richards, and used the opportunity to educate him on the concept of the sliding scale. In the end, Boston Consolidated accepted the Brandeis proposal, a compromise was approved by the legislature, and an incentive for cheaper gas rates resulted. When the sliding-scale system went into effect in 1906, the rate was reduced first to $.85 per thousand cubic feet and then to $.80 as stockholders simultaneously saw dividends increase. Beyond the principle of fair play for consumers, Brandeis found a powerful argument for greater efficiency in business. Brandeis’s experience in Boston civic reform provided a useful training ground for his later engagements in regional and national issues relating to the regulation of big business, railroads, and trade unions.
“My contributions to public service are but a pale imitation of the great Louis Brandeis, whose life and work set the standard for pro bono service, a standard which has not been exceeded in the intervening years.” Sandra Day O’Connor, associate justice of the U.S. Supreme Court (1981–2006), from her Brandeis Lecture, May 4, 1992, University of Louisville
“My Greatest Achievement” Savings Bank Life Insurance
On October 26, 1905, before the Commercial Club of Boston, Brandeis painstakingly presented his case for a plan that in time would change the way working Americans insured their lives and provided for their futures. When Brandeis first began his study and reform of the life insurance industry, nearly half the American population had invested their money with a handful of very large and powerful insurance companies. By 1905, millions of American working families were counting on the safety net provided by industrial life insurance, which was sold door-todoor by insistent salesmen who returned each week to collect the small amounts that working families could afford. Industrial life insurance required a minimum number of payments for the policyholder to receive any return in the event of death, and a missed payment resulted in a lapsed policy. In fact, the insurance companies were counting on a large percentage of forfeitures to enhance their profits. A dispute between the president and vice president of the Equitable Assurance Company of New York came to light in articles and editorials in the New York World, with tales of mismanagement and personal use of company funds. Following closely upon the revelations in New York, a group of Bostonians formed the Protective Committee of Policy Holders of the Equitable Life Assurance Society to represent their interests and asked Brandeis to be their counsel. He agreed if they would hire him without fee so that he could be free to represent the publicâ€™s interest in the matter.
Brandeis began studying and gathering facts on the subject, lugging heavy volumes of studies home each night and issuing reports about what he found. As a result of the Equitable disclosures, in July 1905 the governor of New York appointed a legislative committee to investigate the insurance business. Under the chairmanship of Senator William S. Armstrong, and with Charles Evans Hughes (a future chief justice of the U.S. Supreme Court) as chief investigator, the committee conducted hearings. By September they issued a report that addressed the abuses of the regular life insurance industry, but included little about industrial insurance, which they reported could not be satisfactorily repaired. Brandeis did not agree: industrial insurance was the primary vehicle for working individuals and families, and there had to be a way to provide for their needs. Brandeis contacted actuary Walter Channing Wright to provide data for his reform of industrial life insurance. Brandeis learned of the work of Elizur Wright, Walter Wrightâ€™s father and the first insurance commissioner of Massachusetts, who, in 1874, had proposed a Massachusetts Family Bank that would combine banking and insurance services. But Elizur Wright was too old at the time to pursue the idea, and it languished. Brandeis envisioned a plan that would offer life insurance to working people through savings banks, eliminating some of what he saw as evils of the existing system, such as high-pressure salesmen, expensive advertising, and the huge fees insurance companies were accruing. Brandeis believed that the experiment was feasible because it did not involve 37
Above: A listing of the first twentyone Massachusetts banks to participate in Savings Bank Life Insurance. The Whitman Bank established its insurance department on June 22, 1908. Opposite: Brandeis with Irving Hurst, Massachusetts state actuary, and Alice Grady, later deputy commissioner of Savings Bank Life Insurance, in the library of the law offices of Brandeis, Dunbar & Nutter at 161 Devonshire Street, in Boston, January 11, 1916.
the establishment of new offices or the hiring of many employees, but could be carried out within existing institutions. He was prescient in recognizing that life insurance represented a safe and reliable way for workers to take responsibility for their own retirement and provide security for their old age.
Above: In a letter to Brandeis dated January 14, 1907, President Theodore Roosevelt acknowledged receipt of two articles on insurance Brandeis had authored and asked for advice on a report submitted by the District of Columbia insurance commissioner. Later that year, the Massachusetts legislature passed a law establishing Savings Bank Life Insurance. Opposite: On its fortieth anniversary in 1947, Savings Bank Life Insurance published a short history titled “From Acorn to Mighty Oak,” which featured the story of how SBLI came to be and related Brandeis’s role in its development.
On October 26, 1905, he presented his ideas in an address titled “Life Insurance: The Abuses and the Remedies” to the Commercial Club of Boston. The talk included a dizzying array of facts and figures, including ten “fundamental changes necessary,” which included policies without jeopardy of forfeiture, deferred dividends, standard forms of policy, and limitation on the size of the company. As for the tasks that insurance companies performed, such as medical examinations, verification of death, and calculation of premiums, Brandeis believed that banks could assume these without difficulty. Norman Hapgood, editor of Collier’s magazine, a popular journal with a decidedly progressive slant, wrote favorably of the speech, and Brandeis and he struck up a correspondence that was the start of a lifelong friendship. Over the years, Hapgood’s magazines (he later edited Harper’s Weekly) would publish scores of Brandeis articles on everything from big business to conservation. The September 15, 1906, issue of Collier’s contained Brandeis’s “Wage Earners’ Life Insurance,” which Hapgood then agreed to have reprinted in scores of newspapers for wider public circulation. But Brandeis still had to convince others—bankers and legislators—that the plan would work.
With Walter Wright’s assistance, Brandeis began crafting a workable bill for the Massachusetts legislature. The first vote in the Joint Recess Committee was not encouraging: 14–1 against the measure. Behind the scenes Brandeis undertook a tireless and well-orchestrated campaign for support, contacting labor union leaders and addressing groups across the state in clubs, churches, and other gatherings, sometimes five or six nights a week. The meetings included question-and-answer sessions so that Brandeis could educate as well as propagandize. These efforts generated thousands of letters and telegrams to the Massachusetts State House, and Brandeis helped form the Savings Bank Insurance League, whose large membership included both prominent civic leaders as well as legions of not-so-prominent supporters. The league’s president, William L. Douglas, was a former governor of the commonwealth, president of the People’s Bank of Brockton, an important shoe manufacturer, and owner of the largest newspaper in Plymouth County. All this activity aroused the complacent insurance industry, which mounted its own countercampaign, featuring full-page newspaper ads, public speeches by their representatives, and reduced premium rates. Henry Lee Higginson, a powerful Boston businessman and former social acquaintance with whom Brandeis would battle again, answered with a plan by the insurance industry to sell over-the-
counter policies. Brandeis believed it would take years to get these operations going, leaving industrial insurance and millions of working families in the same disadvantaged position. The Higginson plan drew some support, but, as Brandeis suspected would be the case, it went nowhere. The savings bank proposal eventually passed the Joint Recess Committee and then proceeded to make its way
successfully through both the House and the Senate. On June 26, 1907, Governor Curtis Guild signed Savings Bank Life Insurance into law, calling for the establishment of a General Guaranty Fund overseen by seven volunteer trustees. Brandeis offered the governor a list of names for the new panel, “men of standing and business experience who are strong believers in the work . . . whose business experience would
enable them to meet readily such difficulties of detail as will necessarily arise,” most of whom the governor appointed. Despite all the time and energy expended, more work awaited. Brandeis still needed to gain the support of those who set the banks’ policy, the trustees. Each bank was required to raise $25,000 for a guaranty fund. On June 22, 1908, the Whitman Savings Bank opened the first insurance department, followed in November by People’s
Savings Bank of Brockton. Despite the slow start, Savings Bank Life Insurance was finally a viable and attractive alternative for the working people of the commonwealth. The Massachusetts Savings Bank League printed materials for employers to place in pay envelopes and in time one third to one half of employees in area manufacturing companies had joined. Doing much of the administrative work was Brandeis’s longtime secretary, Alice Grady, who
in 1919 was named deputy commissioner of Savings Bank Life Insurance. Savings Bank Life Insurance remained a lifelong interest for Brandeis, one that he referred to as his “most important achievement.” The success of Savings Bank Life Insurance showed that achieving fair play and decent opportunities for working Americans was an important pursuit and one that required the ingenuity and persistence that Brandeis possessed.
Right: “The Romance, Development of Savings Bank Life Insurance in Massachusetts” was delivered before the New Century Club of Boston on November 29, 1932, by Alice Grady, the first deputy commissioner of SBLI. Grady was hired by Brandeis in 1894 as his office stenographer and proved to be a skilled private secretary and trusted friend. She was appointed deputy commissioner of SBLI in 1919 and remained in that position until her death in 1934. Celebrating its centennial in 2007, SBLI of Massachusetts has become the leading provider of ordinary life insurance in the state and its insurance products are available in fourteen states and the District of Columbia. Opposite, left: A flyer shows a mother explaining SBLI to her children under a portrait of the man whose hard work and inspiration made the concept a reality. Opposite, center: Brandeis’s address on “Life Insurance: The Abuses and the Remedies,” his first formal public statement on the subject, was delivered before the Commercial Club of Boston on October 26, 1905, and subsequently published by the policyholders organization. Opposite, right: SBLI designed and distributed flyers and handbills to workers in factories and other businesses that provided information on the advantages of the new insurance over industrial life insurance.
“There were those who refused to take Brandeis’s plan too seriously. Someone said, ‘Nobody need lose any sleep over the dream of the Boston theorist, for the dream has about one chance in a million of ever coming true.’ He didn’t know Brandeis very well.” Crawford H. Stocker Jr., in Mutual Savings Banking, September 1956
“Reasoning from Life” The Brandeis Brief
Among the scores of cases and causes that Brandeis advanced throughout his career, a single litigation is credited with transforming American legal history, the 1908 case of Muller v. State of Oregon. In 1903 the state of Oregon passed a law establishing a maximum of ten hours of work a day for women in factories and similar enterprises. Less than two years later, on September 4, 1905, that law was called into question when Muller’s Grand Laundry in Portland required an employee, Mrs. Elmer Gotcher, to work beyond the maximum hours allowed by law. Laundry owner Curt Muller was charged and found guilty of a misdemeanor. He appealed to the Supreme Court of Oregon, which upheld the conviction. Muller then took his case to the U.S. Supreme Court. State legislatures at this time were debating and passing laws to address conditions resulting from an increasingly industrialized means of production. A key constitutional issue with which the courts then wrestled involved an interpretation of the Fourteenth Amendment, which prohibits depriving individuals of “life, liberty, or property, without due process of law,” to include the liberty of contract. Against this claimed right was the promulgation of laws protecting the public’s health and welfare in work that often required long hours in unsafe and unhealthy working conditions. Briefs submitted in these cases usually argued only legal principles, what Brandeis called “reasoning from abstract conception,”
rather than “reasoning from life.” Nevertheless, a number of protective laws were enacted. Up to this time, judges invariably upheld the constitutionality of statutes unless a constitutional violation was established. However, when the U.S. Supreme Court took the position that states had to show “special” justification for legislation restricting “liberty of contract,” the need arose for a new way to draft laws to protect workers and address social ills that the Founding Fathers had not foreseen. An approach more in tune with the facts of life of industrialization was needed to meet the test that the Court imposed. The Muller case came to the attention of the National Consumers’ League, an organization established in 1899 through Chicago’s Hull House to advocate for those who lacked the power to speak for themselves, primarily women, children, and those working in squalid conditions. Among the league’s mandates were drafting and fighting for protective legislation that would be upheld in the courts. The Oregon State Consumers’ League notified the national organization of the Muller case, and the group began to marshal its resources. The league’s director was Florence Kelley, who happened to be out of town when a league committee arranged a meeting with a prominent member of the New York Bar to see whether he would take the Oregon case. Attorney Joseph Choate declined, showing little interest or sympathy for the issues involved. Florence Kelley then approached her first choice, Louis Brandeis, who was the brother-in-law of Josephine
Above: The table of contents of the argument filed by Brandeis (with Josephine Goldmark) in the case of Muller v. State of Oregon offers a glimpse of how this litigation changed American legal history. Prior to this time, briefs consisted mainly of pages of legal argument and little supporting documentation. What came to be known as the Brandeis Brief turned that tradition on its head, with two pages of legal argument and more than one hundred pages of sociological and economic data. Opposite: Louis D. Brandeis, c. 1894. The cover of the Brandeis Brief in the case of Muller v. State of Oregon, before the U.S. Supreme Court, October Term, 1907.
“The distinguishing mark of Mr. Brandeis’s argument was his complete mastery of the details of his subject and the marshaling of evidence. Slowly, deliberately, without seeming to refer to a note, he built up his case from the particular to the general, describing conditions authoritatively reported, turning the pages of history, country by country, state by state, weaving with artistic skill the human facts, all to prove the evil of long hours and the benefit that accrued when these were abolished by law.” Josephine Goldmark
Goldmark, then head of the league’s Committee on the Legal Defense of Labor Laws, and of Pauline Goldmark, another league official. Brandeis agreed to take on Muller so long as he was given the status of legal counsel for Oregon, which allowed him to prepare the oral argument and play a critical role in the preparation of the case. Assuming the position as friend of the court (amicus curiae) would not have given him this authority. Brandeis thought that neither lawyers nor judges kept pace with the rapidly changing world around them and that they lacked “understanding of contemporary industrial conditions.” He believed, therefore, that he and his colleagues would have to educate the Supreme Court. As Brandeis prepared the legal argument, Josephine Goldmark, Florence Kelley, and a small army of researchers went to work to provide supporting data on the effects of long hours and working conditions on women in industry. The brief that Brandeis submitted was unprecedented: it contained only two pages of legal argument and more than one hundred pages of sociological and economic data, a daring break with legal tradition. The supporting information included excerpts from state and foreign laws and regulations concerning limiting women’s working hours, as well as government and university statistical reports that demonstrated the adverse effects of long hours on women and their families. The goal was to convince the courts of the “reasonable” connection between the legislation and the health of the public. What became known as the Brandeis Brief provided this proof
and, by doing so, gave the courts a way to circumvent the liberty of contract doctrine. The U.S. Supreme Court upheld the Oregon law by a vote of 9–0, a decision that captured national attention. Reprints of the brief were distributed widely, and the National Consumers’ League was reinvigorated in its efforts in support of labor legislation and standards. Brandeis subsequently filed similar briefs in more than a dozen courts and appeared in a number of oral arguments. When the state of Illinois reenacted a women’s maximum hours law that the Illinois court had struck down in 1895, Brandeis defended the state with a brief of more than six hundred pages. Josephine Goldmark’s name was included on the brief to reflect all the work she had done on the case despite not having a law degree. It has been suggested that Brandeis wanted to include her name on the Muller brief but decided that it was unconventional enough as it was. Legislation similar to that enacted in Illinois soon followed in other states. The Brandeis Brief revealed to the nation and its legal profession the workings of an astute legal mind and a fearless innovator for social justice.
Right: Josephine Goldmark (1877– 1950), c. 1894. As head of the committee on labor laws and publications secretary of the National Consumers’ League, Goldmark (a sister of Alice Brandeis) was instrumental in helping gather data for the Brandeis Brief. She subsequently assisted Brandeis in similar cases before more than a dozen courts. (Photograph, The Schlesinger Library, Radcliffe Institute, Harvard University.) Below: When Brandeis represented the state of Illinois in a case involving reenactment of a law regarding limiting women’s working hours, he and Goldmark submitted a brief that included an appendix of more than six hundred pages of data.
“An Essay in Industrial Democracy” Achieving Peace in the New York Garment Industry
Many of Brandeis’s early clients were manufacturers and retailers, and their concerns provided him experience not only in legal matters but also in business practices such as working conditions and efficient management.
trusted jobbers (wholesale dealers) to reorganize how sales orders were taken so that factory work could be properly scheduled months in advance and last-minute rush orders eliminated. McElwain could reduce the time that the factory was idle, Brandeis had the opportunity to test making best use of both workers many of his labor theories in 1903 and facilities. McElwain and when a client, William McElwain, Brandeis continued to work together a progressive thinker and owner of on both business and civic issues one of the largest shoe manufacturing until the former’s untimely death in companies in New England, called 1908 at age forty-one. Through upon him for help when the workers finding solutions that were fair to at one of his factories went on both workers and management, strike over a wage cut. As McElwain Brandeis became a well-known saw it, his workers were being figure in labor matters in the region, paid well and enjoyed good working serving as vice president of the conditions. Brandeis visited Civic Federation of New England McElwain’s factory and reviewed and being called upon frequently to all aspects of the business, from the mediate labor disputes. factory floor to the bookkeeping records. In the course of advising his In summer 1910, another client, client, Brandeis learned that Abraham Lincoln Filene of the although the hourly pay was fair, the Boston retailing family, asked workers didn’t achieve a full year’s Brandeis to help settle a general strike worth of work, losing from ten to in the New York City garment fifteen weeks during slack times when industry. The Filene business was no orders were coming in. As drawn into the dispute because of Brandeis pointed out, the workers’ close ties to the apparel industry, wages had to cover living and family which at this time consisted primarily expenses for twelve months, although of hundreds of small shops that they were only employed and were set up almost overnight, with paid for nine or ten. This irregular little capital investment. Most of employment left working families these businesses struggled against without the ability to budget and tough competition and a rapidly arrange their lives rationally. changing marketplace, staying afloat Brandeis convinced McElwain of the by paying low wages for long hours, fairness of the workers’ demands. requiring workers to pay for needles, thread, and electricity, and in many He also showed McElwain that this cases maintaining unsanitary and was not a very efficient way to run unsafe working conditions. Although a factory. Following Brandeis’s advice, many of the employees were McElwain worked with his most from Italy and Western Europe, the majority of both workers and employers were Jewish immigrants from Eastern Europe.
Above: William McElwain (1867–1908) was the owner of W. H. McElwain & Co., shoe manufacturer, with factories in Massachusetts and New Hampshire. Brandeis represented McElwain’s interests in an insurance case in 1898, and the two became close associates in a variety of civic causes. McElwain turned to Brandeis during a labor strike at one of his factories in 1903, and this led to their crafting a solution to the problem of irregular employment. (Illustration, National Cyclopaedia of American Biography, 1913.) Opposite: Thousands of workers marched in support of the 1910 cloak makers’ strike in New York City. (Photograph, UNITE HERE Archives, Kheel Center, Cornell University.) As Brandeis wrote in the American Cloak and Suit Review, March 1911: “There were other manufacturers who were innocent of each and every one of the causes that led to the outbreak. What good did it do to them? It rained upon the just and the unjust alike.”
Below: A report and minutes of the proceedings to settle the New York City strike of 1910 issued by the Cloak, Suit and Skirt Manufacturersâ€™ Protective Association. This copy of the document belonged to Henry Moskowitz, a New York social worker and friend of Abraham Lincoln Filene, who was instrumental in bringing Brandeis in as impartial mediator. Right: A copy of the telegram sent to Brandeis asking him to serve as chairman of the talks between the striking unions and the employers.
The great strike of women shirtwaist makers in 1909, known as the Uprising of the Twenty Thousand, had brought the issues of working conditions and pay before the public, as workers turned for help to their local chapter of the International Ladies’ Garment Workers’ Union (ILGWU). In spite of what seemed to be a rather weak position, after five weeks the workers gained recognition for their union, an increase in piece rates, and a representative shop committee to deal with management. This was a significant victory for the local union and brought with it more widespread union support. On July 7, 1910, members of both the local and the international union authorized a strike of thousands of members of the mostly male Cloak, Suit and Skirt Makers Union. Like other labor actions that beset the garment industry at this time, the strike erupted in violence and factory closings. To counter the influence of the unions, the employers banded together to form the Cloak, Suit and Skirt Manufacturers’ Protective Association. The workers demanded a new contract, improved conditions, and the right to a closed shop (limiting employment to union members). After attempts to get the two sides together failed, Filene, along with Harry Moskowitz, a prominent and respected New York social worker, and Meyer Bloomfield, a Boston lawyer and reformer,
suggested bringing in a neutral party who would command the respect of both sides. Brandeis was selected, and he was cajoled into leaving his vacationing family to come to New York. When the union refused to negotiate regarding the closed shop, Brandeis resumed his vacation. American Federation of Labor president Samuel Gompers then rushed in from Washington, D.C., and convinced the two sides to bring Brandeis back. Talks began anew on July 29 with counsel and ten representatives for each side and with Brandeis as impartial chairman. Brandeis brought his thoughtfulness, calm, and restraint to the proceedings. He suggested that the parties address the least contentious issues first and work their way through to the most controversial. The talks went well until they inevitably arrived at the issue of the closed shop. Unable to find a solution within the proposals from labor and management, Brandeis introduced the idea of the preferential union shop, a practice in which employers give preference to union workers if equally skilled with non-union individuals, while not requiring union membership. Hammered out with the assistance of financier Jacob Schiff and lawyer and Jewish leader Louis Marshall, the so-called “Protocol of Peace” was signed on September 2, 1910. The Protocol addressed typical labor concerns (maximum hours, minimum wages, holidays), established a Joint Board of Sanitary Control to deal with work conditions, settled other issues of importance to the garment industry (abolition of the charge for electricity and price committees to fix rates for
Top: Male employees of Jouvenile [sic] Cloak Company rode in a horse-drawn carriage during the cloak makers’ strike in 1910. (Photograph, UNITE HERE Archives, Kheel Center, Cornell University.) Above: A look inside a cloak shop, c. 1910. (Photograph, UNITE HERE Archives, Kheel Center, Cornell University.)
piecework), and implemented the agreed-upon preferential shop. Most of all, the Protocol institutionalized the union’s status.
Above: Irregularity of employment and scientific management became important and meaningful areas of study that Brandeis would return to in published articles and speeches over three decades.
The Protocol of Peace banned strikes and lockouts and set up a system by which labor and management had a mechanism for settling disputes among themselves. According to the Protocol, a shop-floor workermanagement committee provided the first review. If no resolution could be found, the next step would be to appeal to the Board of Grievances, composed of two members each from labor and management. Issues that still remained unresolved would then be referred to the Board of Arbitration, which included one representative from labor, one from management, and Brandeis for the public. Decisions of the Board of Arbitration were binding. Brandeis believed that the Protocol would succeed because it offered rationality, efficiency, and cooperation in the place of irrationality, waste, and obstinacy. The Protocol also offered relief from some of the worst abuses of the industry and was adapted for use by other garment unions in New York and elsewhere. Brandeis served as chairman of other labor boards and secured placement of favorable articles in supportive publications such as La Follette’s Magazine. Brandeis described the Protocol of Peace as an “essay in industrial democracy.”
at lower levels, creating increased pressure on the Board of Arbitration. The Triangle Shirtwaist Fire of March 28, 1911, escalated a struggle for the soul of the rank-and-file between the radical local leaders and the more conservative group, the International, and led to the creation of the Factory Investigating Commission, which brought the state of New York in to address such issues as worker safety, factory sanitation, and industry regulation. In July 1915, New York mayor John Purroy Mitchel called a gathering of prominent citizens that included Brandeis and Felix Adler to try to save the Protocol. A cloak makers’ strike followed a general lockout in July 1916, and by August of that year the preferential shop was gone and the Protocol of Peace with it. Despite the eventual collapse of the Protocol of Peace, Brandeis had helped lay the groundwork for the use of collective bargaining, mediation, and arbitration and secured labor’s place at the table alongside management in seeking to achieve industrial democracy and peace.
In time, however, events from inside and outside the industry compromised the effectiveness of the Protocol. Grievances accumulated
Below: Labor newspapers and magazines closely followed the Brandeis-led talks to settle the cloak makers’ strike, which eventually resulted in the development and ratification of the Protocol of Peace. Among the more moderate labor publications was The Ladies’ Garment Worker, the official journal of the International Ladies’ Garment Workers’ Union, which for a time was published in English, Italian, Russian, and Yiddish. Right: The front page of the New York Times of September 3, 1910, reported the end of the strike, with both labor and management declaring a victory.
“Snakes in the Public Service” The Ballinger-Pinchot Affair
The Muller case brought Brandeis respect and gratitude, but the Ballinger-Pinchot Affair made him a national figure. Through dogged research and careful preparation, he exposed how powerful money interests found favor in the highest levels of the federal government. During the presidency of Theodore Roosevelt, millions of acres of wilderness had been put under government control for use as national parks and preserves. Rich with valuable natural resources, these lands became battlegrounds for disputes over public use and private exploitation. In August 1909, the young chief of land-office field agents in the Department of the Interior, Louis Glavis, wrote a report detailing what he saw as illegal dealings between department officials and the powerful Morgan-Guggenheim syndicate over the “clear listing” of public lands in the Cunningham coal claims in Alaska. Glavis brought his suspicions to Secretary of the Interior Richard Ballinger, former commissioner of the land office and once counsel to the J. P. Morgan interests. Ballinger showed no impulse for pursuing the young field agent’s claims, so Glavis took his concerns to a more sympathetic ear, that of Gifford Pinchot. A leading conservationist and the chief forester in the Department of Agriculture, Pinchot had a long-standing feud with Ballinger over conservation and land use. Pinchot advised Glavis to go directly to President William Howard Taft, who on August 22 informed Ballinger and other administration officials of the charges and asked for a response.
President Taft valued Pinchot’s work in conservation and did not want him to resign from government service. He was also aware of the feud with Ballinger and warned Pinchot “not [to] make Glavis’s case yours . . .” A series of moves designed to exonerate Ballinger, keep Pinchot’s connection with the affair quiet, and sweep the whole matter under the rug was set in motion. By the time events had played out, the plan had backfired and the incident had become a national scandal. Through journalist John Bass, Norman Hapgood, then editor of Collier’s magazine, learned about the Glavis report and agreed to publish it. “The Whitewashing of Ballinger” was the cover story on the November 13, 1909, issue of the magazine, and it provoked a national outcry for a congressional investigation. It also opened the door for a possible libel suit if the investigation turned out as Ballinger and the administration hoped.
Above: Richard A. Ballinger (1858–1922) was a prominent Seattle attorney and politician and former commissioner of the general land office under President Theodore Roosevelt. Ballinger was appointed secretary of the interior in 1909 despite conflicts over his role as counsel for the Morgan-Guggenheim syndicate, which was pursuing important coal claims in Alaska. Though cleared of charges leveled by Brandeis as counsel for Louis Glavis, by March 1911 Ballinger had resigned his office. (Illustration, National Cyclopaedia of American Biography, 1913.) Left: The BallingerPinchot Controversy inspired a rash of pamphlets on conservation and exploitation of public land. Opposite: The caption below this cartoon from the May 19, 1910, edition of the Philadelphia Record reads, “Write it as though you were president.” Depicted is President Taft ready to leave town as Assistant Attorney General Oscar Lawler prepares the document exonerating Ballinger and whitewashing the cover-up.
The magazine’s publisher, Robert Collier, gathered a legal team to defend Glavis and Pinchot; to it, Hapgood added Brandeis. Not yet sure of his role in the inquiry, on January 12 Brandeis arrived in New York and settled into a room at the Harvard Club, where for two weeks he saw no visitors but Hapgood. Brandeis used this time to gather the facts and build a case and in the process mastered the inner workings of the Interior Department, conservation, and land law in Alaska. Below: Records of the Senate hearings list the documents submitted by Brandeis on behalf of Louis Glavis. Opposite: In preparation for his role in the Ballinger hearings, Brandeis secured government reports and maps and became an expert on conservation and the Alaskan wilderness.
The first hearing was scheduled for January 26 under the chairmanship of Senator Knute Nelson of Minnesota. Glavis was the first to appear, and he proved an important and persuasive witness, possessing a memory for dates and details that impressed even his counsel. As
Brandeis wrote to his brother Alfred, “Glavis has proved an extraordinary witness. I have never seen his equal. Der junge Mensch [the young man] is only 26.” Throughout the hearings Brandeis had tried to gain access to all documents pertinent to the investigation, to no avail. In early March, Hapgood was called to Washington because of Brandeis’s suspicions about a September 13, 1909, Taft letter that exonerated Ballinger and fired Glavis. The letter was based on a summary report by Attorney General George Wickersham, supposedly gathered and written over an abbreviated period of time during which Brandeis knew that Wickersham was involved with important matters on the Interstate Commerce Act. Brandeis was convinced that the document from Wickersham could not have been written as early as Taft claimed to have read it and suspected that the material used to make the case had been predated to hide this fact. Brandeis also noticed that the letter answered certain charges that Glavis had not made until he prepared the report for publication in Collier’s, after he was fired. Closely following these hearings was Interior Department stenographer Frederick Kerby, who witnessed what had transpired in Ballinger’s office in response to the Glavis charges. Kerby knew he would lose his job if he came forward, but when the committee chose not to question Attorney General Wickersham he went public, having been promised a position by the newspaper syndicate that was about to break the story. Kerby explained how the September 13 letter was prepared, 54
“Boys, before I sleep I propose to kill some snakes.” Secretary of the Interior Richard Ballinger, Washington Post, September 4, 1909
Above: In August 1909, Louis Glavis wrote a report calling the MorganGuggenheim syndicate into question over land claims in Alaska. When Secretary of the Interior Richard Ballinger did not pursue the allegations, Glavis continued to press his claims and Collier’s magazine made the report the cover story of its November 13, 1909, issue. Other newspapers followed the hearings before Congress with great interest, and cartoonists captured the spectacle with artful pen and razor-sharp wit. Above, right: the Jersey City Journal, December 8, 1910. Right: Chicago Tribune, January 31, 1910.
and he described Ballinger’s involvement with it. Ballinger heard about the Kerby testimony and, after consulting with Taft, helped draft the White House denial. Unfortunately, in the meantime Wickersham produced the document and had it sent over to the committee. Under pressure, Taft finally acknowledged the predating of Wickersham’s summary and his own role in the cover-up.
Despite these revelations, the committee voted 7–5 to keep Ballinger in office. However, the libel suit against Collier’s was never pursued, claims on the Cunningham coalfields were halted, and Ballinger resigned his office on March 7, 1911. In the 1910 election, the Republicans lost their House majority.
Theodore Roosevelt to run for the presidency, which split the Republican vote and handed the election to Democrat Woodrow Wilson, whom Brandeis supported. Brandeis emerged with a national reputation for exposing government corruption.
In the end, Taft failed in his bid for a second term. Former chief forester Gifford Pinchot helped convince
“If William Shakespeare were alive today he could bring his Comedy of Errors up to date by writing a history of the Ballinger-Pinchot investigation, now drawing to a close before a joint committee of Congress.” New York Times, May 22, 1910
“Industrial Liberty” The New Freedom and Other People’s Money
Brandeis allied himself with a variety of liberal and progressive causes, and through his work on the public’s behalf he became a powerful voice among the reformers of the day. Among his friends was Republican senator Robert La Follette, a leading Progressive known as “fighting Bob” and “the little giant of Wisconsin,” whom Brandeis met through Bess Evans. The New England lawyer found much in common with the Midwestern politician, and Brandeis often dined with the La Follette family after his long days before the congressional committee investigating Louis Glavis and Richard Ballinger. When La Follette became the presidential candidate of the Progressive wing of the Republicans, Brandeis lent his support, despite his understanding of his friend’s strengths and weaknesses, and he agreed to stump for the campaign. Brandeis took on the politicking with reluctance, but proved effective. On February 2, 1912, however, La Follette, who was physically and mentally exhausted, made a public blunder from which his campaign would not recover. Speaking before the Magazine Publishers’ Association in Philadelphia, he gave a long, rambling speech that included criticism of how the press had treated him. Taft won the Republican nomination, and when Roosevelt tossed his hat into the ring on February 21 as what Brandeis called the “New Party” or Bull Moose candidate, many of the Progressives followed. Brandeis was the only member of the inner circle who did
not abandon La Follette and his doomed candidacy. La Follette never officially withdrew his name from contention, but Brandeis moved on to support the candidacy of Woodrow Wilson. Upon Wilson’s nomination by the Democratic Party, Brandeis dashed off a letter in support of the candidate’s position on tariffs. “This morning’s news that you will suggest dealing with the tariff by reducing the duties gradually . . . is further evidence that the country may expect from you a wisely progressive administration,” Brandeis wrote. “The simple plan which you suggest is true statesmanship.” Wilson was impressed by what he read and summoned Brandeis to Sea Girt, New Jersey, where on August 28, 1912, over a three-hour lunch, the two established a relationship that led to the creation of the economic and financial platform on which Wilson ran for the presidency. Brandeis convinced Wilson that although reducing tariffs was important, the primary goal of his economic plan should concern ridding the country of monopolies and the money trust, the large banking firms that had grouped together to gain control of the country’s financial interests by eliminating smaller competitors. Indeed, the issue of big business became a central theme of the presidential campaign and a stage for advancing progressive reforms. While there was general agreement that trusts were the scourge of the country, there was little accord about what to do. For Roosevelt, big business was an inescapable byproduct of industrialization, and his response was to support strong government 59
Above: Brandeis’s battles with financier J. P. Morgan and the New Haven Railroad were waged from 1905 to 1914, when the Interstate Commerce Commission finally brought the claims of the railroad to an end. Brandeis was quoted in the Boston Journal of December 13, 1912, “A business may be too big to be efficient without being a monopoly; and it may be a monopoly and yet may be well within the limits of efficiency. Unfortunately, New Haven suffers from both excessive bigness and from monopoly.” This cartoon from the New York World, May 21, 1914, titled “A Meeting of the Board,” represented the public’s view of railroad directors and stockholders. Opposite: A cartoon from a series of articles Brandeis researched and wrote for Harper’s Weekly. Under the title “Breaking the Money Trust,” they appeared between November 1913 and January 1914 and were subsequently published in book form as Other People’s Money and How the Bankers Use It, which is still in print.
regulation and penalties to curb abuses. Wilson condemned big business but also had serious doubts about big government. Wilson asked Brandeis to compare the differences between the Democratic Party’s solution to the trust problem with that of Roosevelt. On September 30, 1912, Brandeis wrote, “This difference in the economic policy of the two parties is fundamental and irreconcilable. It is the difference between industrial liberty and industrial absolutism.” This was the heart of the matter for Brandeis: the control of so much money and power in the hands of so few deprived the individual of opportunity and freedom. Wilson made the attack on big business an important part of his campaign message and won the election in a three-way split with Roosevelt and Taft.
Above: Robert La Follette (1855–1925) was an important participant in Wisconsin politics for many years. In 1911 he was nominated for the presidency by the Progressive Republican League, but his own personal shortcomings and a misguided political campaign forced him out of the race, which was won by Woodrow Wilson. La Follette and Brandeis supported broad reforms in government and an end to monopolies.
By this time Brandeis knew his way around monopolies. Since 1905 he had been a thorn in the side of J. P. Morgan as the financier endeavored to gain control over New England’s transportation network. The clash between Brandeis and Morgan’s New Haven Railroad endured for nine years. To expose the excesses of Morgan and their disastrous effect on the public, Brandeis made himself an expert on the New Haven Railroad in particular and railroads in general. Over the years, Brandeis’s long connection with the New Haven and knowledge of the industry frequently brought him to Washington. Public hearings finally began before the Interstate Commerce Commission in 1914, by which time J. P. Morgan was dead and railroad president Charles Sanger Mellen, with whom Brandeis often sparred, had resigned. On July 14, 1914, the commission made public
the story of “reckless and profligate” finance operations, “one of the most remarkable chapters in American railroading and finance.” The policies and greed that brought the New Haven to its knees had been revealed by Brandeis years before. On August 11, 1914, the New Haven relinquished its attempts to dominate the New England transportation industry. One of President Wilson’s first orders of business in 1913 was choosing a cabinet. To many observers, Brandeis seemed in line for a post, most likely that of attorney general or secretary of commerce. Although no official statement of appointment was made public, letters opposing Brandeis poured in from big business and others whom Brandeis had displeased with his campaigns in the public interest. At President Wilson’s request, Norman Hapgood completed a thorough investigation of Brandeis, discovering nothing that was controversial or would prevent his nomination to the cabinet. Although Brandeis heard the rumors about his possible appointment, he maintained his distance, ambivalent about whether he wanted the position and concerned with how much independence he would have to give up to accept it. After much public and private speculation, on March 2, 1913, the press announced that Wilson had appointed James McReynolds as attorney general and William Redfield as secretary of commerce.
Left: “A Curse of Bigness” was the eighth part of the twelve-part series on “Breaking the Money Trust” that Brandeis wrote for Harper’s Weekly in 1913 and 1914. Below: A certificate dated October 20, 1912, acknowledged Brandeis’s donation of $50 to Woodrow Wilson’s campaign for the presidency. On August 28, 1912, following his meeting with Wilson in Sea Girt, New Jersey, Brandeis wrote to his brother Alfred, “Was very favorably impressed with Wilson. He is strong, simple, serious, open-minded, eager to learn and deliberate.”
Brandeis spent summer 1913 conducting research and gathering information for a series of articles on the money trust for Harper’s Weekly, which Hapgood edited after leaving Collier’s. The articles appeared between November 22, 1913, and January 17, 1914, under the title “Breaking the Money Trust” and were subsequently published in book form by Brandeis as Other People’s Money and How the Bankers Use It. Through the magazine series Brandeis hoped to inform the public about the dangers of so much power in the hands of so few and the harm this inflicted upon the people and the body politic.
Above: A cartoon from the Harper’s Weekly series. Right: In Brandeis’s appearance before the Interstate Commerce Commission in November 1910 on behalf of East Coast shippers over rate increases, he accused the railroads of inefficient management, claiming waste of $1 million a day. In reply, railroad owners sent Brandeis a telegram offering him a position “at his own salary” if he could show them “a practical way by which a substantial portion of this amount may be saved.” Brandeis replied that he would be glad to help without fee and asked them to name a date and a place to meet. He received no answer, but the country’s newspapers made much of Brandeis’s challenge. Opposite: The cover of the Harper’s Weekly that initiated the twelvepart series by Brandeis on “Breaking the Money Trust.”
Not long after being elected, Wilson was able to secure passage of the Underwood Tariff Act of 1913, the first significant cut in tariff rates since the Civil War. The president then turned his sights on the complicated issue of banking and currency reform. Both houses of Congress held hearings and produced reports, but too much power still remained in the hands of private bankers. Many of Brandeis’s ideas found their way into legislation enacted under the Wilson administration, including prohibition of interlocking directorates and disclosure of bankers’ commissions and profits. Under Wilson, the Federal Trade Commission was established and passage of the Federal Reserve Act provided for government control of the banking system and currency. Passage of the Clayton antitrust legislation initiated improvements to the Sherman Antitrust Act of 1890, although its final form was said to “lack teeth.” In the end Brandeis was disappointed by the compromises but believed that Wilson’s program, unlike the efforts of prior administrations, had been able to weaken the grip of the money trust on the country. By this time, Brandeis had also become involved in another cause that would claim his dedication for the remainder of his life.
“The Struggle Is Worthwhile” Zionism
An already full life became even busier when, in August 1914, Brandeis was invited to an emergency meeting in New York called to address the predicament of European Zionists following the outbreak of World War I and the closing of national borders. With European Zionist organizations separated from each other by the hostilities, New York offered a new home base for the movement. Over the years Brandeis never denied his Jewish heritage, but neither did it occupy an important place in his personal or professional life. From his mother he received a strong tradition of seeking social justice unaccompanied by religious observance or instruction. Both his parents traced their lineage to European Jewry. Certain members of his mother’s family had been followers of Jacob Frank, leader of a mystical messianic cult. According to Frederika Dembitz Brandeis, these forebears “were unhappy and depressed by the sad condition of the Jews and ready for a faith which promised them help.” Frederika’s brother, attorney Lewis Dembitz, however, was an observant Jew, a leader of the Louisville Jewish community, and the author of works on Jewish observance and the Bible. As a prominent and active member of Boston’s legal community, Brandeis made customary donations to Boston’s Jewish charities and in 1905 spoke at the New Century Club on the 250th anniversary of the first
settlement of Jews in the United States. After 1910, however, his exposure broadened from the world of the German-Jewish merchants and manufacturers of New England to include the Eastern European Jewish immigrant entrepreneurs and garment workers of New York as well as leaders of the national Jewish and Zionist communities. He was also personally influenced by individuals such as Aaron Aaronsohn, the discoverer of wild wheat in Palestine; Jacob de Haas, editor of Boston’s Jewish Advocate and once the London secretary to Theodore Herzl, founder of modern Zionism; and Nahum Sokolow, a prominent figure in European Zionism. Through connections he had made in professional and Jewish communal circles, Brandeis was a frequent speaker on issues related to Palestine and was elected a delegate to the eleventh Zionist World Congress, which convened in Vienna in summer 1913. He declined to attend, owing to other responsibilities, but sent a message that outlined his ideas for the social and economic development of Palestine, issues that captured his interest. At the August 1914 emergency session in New York, Brandeis was chosen chairman of the new Provisional Committee for General Zionist Affairs, a primarily honorary position established to attract contributions and support. A subcommittee was also formed to carry out much of the actual work. Since Brandeis’s previous involvement in Jewish causes was modest, no one at the conference expected him to take an active role. But he was eager to learn, acknowledging his
Above: Brandeis’s photo appeared in the Jewish Advocate on July 2, 1915, as part of the coverage of Zionist Week and the national Zionist convention in Boston. Opposite: Brandeis (in dark suit) posed with Dr. Harry Friedenwald in Palestine, July 1919. Deeply moved by his visit, Brandeis wrote to Alice, saying, “The problems are serious and numerous. The way is long, the path difficult and uncertain, but the struggle is worthwhile. It is indeed a Holy Land.”
own lack of a Jewish education. By the end of the conference, Brandeis was fully committed to the Zionist cause, ready to be a leader in deed as well as name. With de Haas as his tireless lieutenant, Brandeis opened a New England Zionist office at his own expense and began compiling information on Jewish communities in the region. Brandeis brought order and organization to what had been chaos, and it has been reported that national membership in the American Zionist movement between 1914 and 1919 grew from 12,000 to more than 175,000 under Brandeis’s leadership. The Jewish communal movement at this time was neither unified nor monolithic, and, as the American Zionist leader, Brandeis encountered discord from within the factions of his own group as well as from the more established American Jewish Committee, whose members tended to be wealthy Jews of Central European background.
Top: The Zionist Bureau for New England distributed pamphlets throughout the region seeking support for Jews in Europe and Palestine. This flyer explained how to send letters to the war zones. Above: Brandeis wrote to Alice from the ship as he was nearing Marseilles after leaving Palestine, “I feel that we really know the main problems and the difficulties and possibilities . . . all my previous reading has become vitalized.”
Brandeis was elevated to the Supreme Court on June 5, 1916, and for a time maintained his Zionist affiliations. He attended a Zionist conference in New York a few weeks later to discuss plans for convening a democratically elected “congress” of American Jews. But many of those attending the event attacked Brandeis’s views and questioned the propriety of his continued leadership. When an editorial in the New York Times suggested that he withdraw from his position in the Zionist movement and concentrate on his
judicial responsibilities, Brandeis complied. He resigned his official positions yet continued to work behind the scenes through close colleagues such as Rabbi Stephen S. Wise, Judge Julian Mack, Felix Frankfurter, and Robert Szold. He lobbied government officials, including President Wilson, on Zionist concerns. Perhaps his most significant role was in helping to gain American government approval of the Balfour Declaration of November 2, 1917, which announced the British government’s support of the establishment of Palestine as “a national home for the Jewish people” following the partitioning of the Ottoman Empire after World War I. During the Court’s summer recess in 1919, Brandeis made his only visit to Palestine. “What I have seen and heard strengthens greatly my conviction that Palestine can and must become the Jewish Homeland as promised in the Balfour Declaration,” he wrote to Alice. Brandeis continued serving Zionism in an active but unofficial role until 1920, when a long-standing feud with the international Zionist leader Chaim Weizmann finally came to the surface over the establishment of a central agency for Palestine financial development and the composition of its oversight panel. The issue brought to light important philosophical differences between the American Zionists and those of the international Zionist movement, as well as between the groups’ leaders, Weizmann and Brandeis, whose backgrounds, bonds to Judaism, and views on Zionism and Palestine diverged. The Russianborn Weizmann’s Zionism was an emotional and spiritual 66
Left: The June 1916 issue of The Maccabaean featured an article on Brandeis by Jacob de Haas, who has been credited with planting the seeds of Zionism in Louis Brandeis. Below: Ein Hashofet, near Haifa, was the first American-founded kibbutz in Israel. Established in 1937 as one of the “tower and stockade” settlements by members of the Hasomer Hatzair youth movement, it was named “well of the judge” in honor of Brandeis, whose support helped it become a reality. Brandeis received annual gifts from the kibbutz harvest and maintained a connection to the community throughout his life. The kibbutz remains vibrant today.
Above and opposite: Letters between Brandeis and the Hebrew Sheltering and Immigrant Aid Society of America document how Brandeis was able to secure visas allowing his cousins Betty and Louise Brandeis to leave Austria in 1938. Right: The cousins wrote to Brandeis expressing their gratitude for his help. Brandeis also helped other families save relatives and friends from the Nazis, and he called upon President Roosevelt at the White House to discuss the plight of European Jewry.
Left: When Brandeis took over the leadership of the Zionist Bureau for New England, he began collecting demographics on Jewish families in the region. Top left and above: In August 1914, Brandeis was asked to attend an emergency meeting of Zionist leaders in New York, where he was named chairman of the Provisional Committee for General Zionist Affairs. The group was formed to shoulder important Zionist work that could no longer be carried out in war-torn Europe.
connection to the biblical Promised Land, while American-born Brandeis viewed Palestine as a land where Jewish dreams of social justice might be realized. The following year, 1921, at the Zionist Organization of America convention in Cleveland, the direction supported by Brandeis and his followers was defeated by those favoring the Weizmann approach, and the Brandeis group promptly resigned from the leadership. Though out of the main halls of power, Brandeis continued to confer with his colleagues on Zionist matters, establishing the Palestine Development Leagues, the Palestine Co-operative Company, the Palestine Endowment Fund, and other agencies to provide support for social and economic programs in Palestine. Brandeis also personally contributed to efforts that he championed, such as the eradication of malaria and the activities of the Hadassah organization. By 1929 the Zionist Organization of America was falling apart. During summer 1930 Brandeis conferred at his summer home with Zionist leaders to work out a compromise on the future of the group, which over the next few years found success through rebuilding. Although Brandeis refrained from direct intervention with government policy except for his role as a member of the Court, he did make an exception when it came to the plight of European Jewry. On more than one occasion Brandeis sought
out the help of President Franklin D. Roosevelt on issues relating to Jews and Palestine. In the late 1930s, Brandeis was instrumental in bringing two of his cousins out of Austria and helping others find ways to rescue relatives and friends. As Brandeis University professor Jonathan Sarna has observed, Brandeis helped to tranform the American Zionist movement’s image and identity. He eased concerns that support of Zionism compromised a Jew’s Americanism and the fear that open support of a Jewish cause would undermine the progress Jews had made in the United States. As Brandeis explained, “There is no inconsistency between loyalty to America and loyalty to Jewry . . . America’s insistent demand in the twentieth century is for social justice. That also has been the Jews’ striving for ages.” Brandeis’s connection to Palestine was closely linked to his love of the land, and through his help the first American-established kibbutz in Palestine was founded in 1937 and named Ein Hashofet, “well of the judge,” in his honor. Brandeis maintained contact with the founders of Ein Hashofet to his last days. Ein Hashofet remains one of the most successful kibbutzim in Israel, where Brandeis’s contributions are still honored.
Above: Jews throughout the United States signed cards congratulating Brandeis on his eightieth birthday in 1936. Messages poured in from large cities and small towns.
“The Living Law” The Supreme Court Years
Supreme Court Associate Justice Joseph R. Lamar died in office on January 2, 1916. On January 28 the clerk of the Senate read a message from President Wilson placing the name of Louis D. Brandeis into nomination to the U.S. Supreme Court. Brandeis happened to be in Washington at the time but declined to comment when questioned by the press. Although he was silent and returned to Boston while the Senate conducted heated confirmation hearings, he did not sit on the sidelines. For this battle Brandeis needed both a strategy and a team to carry it out. He found them in his law partner Edward McClennen, who moved to Washington for the hearings, and in George Anderson, a U.S. district attorney assigned to the Senate committee. An informal network that included Norman Hapgood, Robert La Follette, and Felix Frankfurter was also actively involved in the effort to secure Brandeis’s appointment to the Court.
establishment whose petition read, in part, “We do not believe that Mr. Brandeis has the judicial temperament and capacity which should be required in a judge of the Supreme Court.” Support for Brandeis came from nine of eleven Harvard Law School professors, former Harvard president Charles W. Eliot, and a long list of labor leaders, among others.
The fight for the nomination splashed across the front pages of the nation’s newspapers. In the Boston Morning Globe Brandeis was labeled “a radical, theorist, impractical, and [with] strong socialist tendencies,” and the Wall Street Journal asserted, “Where others were radical he was rabid; where others were extreme he was super-extreme; where others would trim he would lay the ax to the root of the tree.” His religious background found a place in the headlines as well: “The Appointment of Brandeis, Recognizing the Jew” in the Trinidad, Colorado, Chronicle, and “Senate Opposed to Jew?” in the Daily News Independent of Santa Barbara. Editorials in support of his The path to the nomination began with hearings before a subcommittee nomination ran in Harper’s Weekly, the Survey, and the New Republic, of the Senate Judiciary Committee. where Walter Lippmann defended These were followed by proceedings before the Judiciary Committee, then Brandeis against his critics, declaring, “Mr. Brandeis has been a rebellious finally a vote of the full Senate. The and troublesome member of opposition consisted primarily of the most homogeneous, self-centered, those who had lost legal battles to and self-complacent community Brandeis, from Edward Warren of in the United States.” the Boston sliding-scale gas settlement to Clifford Thorne of the The hearings seemed to drag on; Iowa Railway Commission. The testimony before the subcommittee list of his adversaries included names totaled more than a thousand pages. of prominent members of various Finally, on April 3 the subcommittee constituencies: seven former voted 3–2 in favor along party presidents of the American Bar lines. If such adherence to political Association; President A. Lawrence affiliations continued, the vote in Lowell of Harvard; and fifty-five the Judiciary Committee might hinge members of the Massachusetts legal 73
Top: “You Are Good Enough for Me,” President Wilson told Brandeis in the caption accompanying this cartoon from the May 12, 1916, edition of The American Hebrew. Above: On June 1, 1916, the full Senate confirmed Brandeis’s appointment by a vote of 47–22. Opposite: Justice Louis D. Brandeis appeared in a formal portrait as associate justice of the U.S. Supreme Court, c. 1916.
on a single vote. Members of the Brandeis group convinced Attorney General Thomas Gregory to solicit a statement from President Wilson to be read to the Judiciary Committee by its chairman, Senator Charles Culberson. “I have received from him [Brandeis] counsel singularly enlightening, singularly clear-sighted and judicial, and, above all, full of moral stimulation,” wrote Wilson. “I cannot speak too highly of his impartial, impersonal, orderly, and constructive mind.” The Judiciary Committee voted 8–7 in favor of Brandeis, and on June 1, 1916, the full Senate followed suit, voting 47–22. With his family in attendance, including his brother Alfred, Louis D. Brandeis was sworn in as associate justice of the Supreme Court on June 5, 1916, becoming the first Jew to occupy a seat on the high court. (Judah P. Benjamin had been nominated by President Millard Fillmore in 1853, but chose to keep his seat in the Senate representing the people of Louisiana.)
Top: In Whitney v. California (1927), Brandeis concurred with the Court in upholding the conviction of a woman who helped establish the Communist Labor Party in California. However, he wrote a separate opinion that is still considered one of the most eloquent defenses of freedom of speech in American law. Above: “The Blow That Almost Killed Father” shows the reaction of Wall Street to Wilson’s nomination of Brandeis to the Supreme Court. (Rollin Kirby for the New York World, January 29, 1916.)
Despite the rancor that Brandeis’s nomination elicited, it became clear that the new justice was eminently qualified for the position, and few ever worked harder. It was customary at this time for a justice to hire a secretary to take dictation and write or type opinions. Brandeis chose to compose his opinions himself in longhand and have the Court printer prepare them. His opinions would often go through many revisions, “dozens, even scores, of painstaking revisions,” according to Paul Freund, a Brandeis clerk and later a distinguished legal scholar and Harvard Law School professor. In the place of stenographic help, he relied each year on the assistance of a recent law school graduate chosen by Felix
Frankfurter, then a professor at Harvard Law School. In addition to Freund, the roster of Brandeis clerks included Calvert Magruder, later a federal appeals judge; Dean Acheson, a future secretary of state; James Landis, later dean of Harvard Law School; and Harry Shulman, in time dean of Yale Law School. The clerk’s job was to assist Brandeis in research and preparation, whether that involved finding legal precedents or amassing files of sociological data. There were no offices for the justices at the time, so Brandeis worked from his apartment in Stoneleigh Court. When he and Alice later moved to 2205 California Street, N.W., he rented an apartment above their own where he and his clerk would work. The completion of the Supreme Court building did not alter Brandeis’s working arrangements. As Paul Freund wrote, “He could never quite reconcile himself to the grandeur of the Court’s new edifice, lest the power of the Court might in some measure come to rest on the majesty of office rather than on the inward strength of the appeal to reason.” As with his important work in the public interest, Brandeis used the Court to educate, to bring an issue fully to light, and to explain the law and the questions surrounding it to both the judiciary and the people. Often his dissents became more famous than the opinions of the majority. Brandeis was known for writing long memoranda to his colleagues on the bench in an effort to influence them before the final opinion was drafted. He tried to persuade through reason, marshaling arguments and data. He was also a seasoned politician, understanding that he had to find common ground in order to achieve his ambitions, despite
Right: President Woodrow Wilson sent a letter to C. A. Culberson, chairman of the Judiciary Committee, to strengthen Brandeisâ€™s nomination to the Supreme Court. Below: Wilsonâ€™s official nomination of Brandeis, dated January 28, 1916. (Courtesy Nutter, McClennen & Fish, LLP.) Below right: members of the U.S. Supreme Court, 1916. Front row, from left, William R. Day, Joseph McKenna, Chief Justice Edward D. White, Oliver Wendell Holmes Jr., Willis Van Devanter. Back row, from left, Louis D. Brandeis, Mahlon Pitney, James C. McReynolds, John H. Clarke. ( The collection of the Supreme Court of the United States.)
The fight over Brandeisâ€™s nomination to the Supreme Court was the most contentious and controversial to that time. Newspaper headlines across the country reported on the results as the nomination made its way through the subcommittee, judiciary committee, and finally the vote of the full Senate. Jewish and Zionist papers took particular note as Brandeis moved closer to becoming the first Jew to sit on the U.S. Supreme Court.
differing political, judicial, and social opinions, as well as style, among the justices. Brandeis’s closest colleague on the bench was Boston friend Oliver Wendell Holmes Jr., who had been named to the Court in 1902. They did not always take the same side, but agreed often enough to give currency to the phrase “Holmes and Brandeis, dissenting.” Brandeis’s opinions during his years on the Court numbered 528, of which only 54 were dissents. Brandeis and Holmes differed in both temperament and habits of mind. Holmes was the philosopher, basing his opinions on abstract theory, while Brandeis was the pragmatist, relying on facts and seeking understanding of the conditions that gave rise to modern legislation. Holmes tolerated experimentation because this fit into his idea of a flexible Constitution. Brandeis was an advocate, seeking legal remedies to accommodate societal change.
and due process of law. Brandeis dissented, writing, “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.”
Freedom of speech was a recurring theme throughout Brandeis’s judicial career, particularly during and immediately following World War I. In Schenk v. United States (1919), Holmes’s dissent, which Brandeis supported, delineated guidelines that provided the basis for cases involving free speech. Holmes wrote,“The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Both Schaefer v. United States (1920) and Pierce v. United States (1920) concerned the Espionage Act and the distribution of publications that Brandeis felt no one could construe Although it is difficult to choose as presenting a clear and present specific cases to highlight an danger, particularly since the illustrious twenty-three-year Supreme restrictions applied both in time of Court career, there are a few that are war and in time of peace. In Gilbert v. emblematic of Brandeis’s tenure. In Minnesota (1920), a case involving New State Ice Company v. Liebmann the prohibition of teaching or (1932), the majority voted in favor advocating pacifism, Brandeis found of the Oklahoma courts, which ruled that the statute did not relate against a statute requiring new to whether the teaching of pacifism ice companies to obtain a certificate compromised the country during of public convenience. While time of war, but rather to the Brandeis did not particularly favor restriction of speech. Brandeis’s the law, he understood that it was dissent read, “I cannot believe that enacted to deal with the impact the liberty guaranteed by the of the Great Depression and believed Fourteenth Amendment includes that there was room in the system only liberty to acquire and to enjoy for experimentation and for property. Does it not include liberty communities to address their own ills. to teach, either in the privacy The Court concluded that the statute of the home or publicly, the doctrine violated the Fourteenth Amendment of pacifism?” 77
Above: Brandeis’s closest confidant for many years was Felix Frankfurter (1882–1965), a graduate of Harvard Law School and member of its faculty. Although Brandeis was more than twenty years Frankfurter’s senior and referred to him as “half brother, half son,” both were champions of liberalism and progressivism. President Franklin D. Roosevelt appointed Frankfurter to the Supreme Court in January 1939; Brandeis retired from the bench on February 13, 1939. (Photograph by Bachrach.)
Brandeis appeared on the cover of Time magazine three times: October 19, 1925, in connection with an article on the Supreme Court; July 7, 1930 (above), concerning his role in the Zionist movement; and November 15, 1937, on the occasion of his eighty-first birthday. (Time magazine ©1937, Time Inc. Reprinted by permission.)
The two civil liberties opinions with which Brandeis is most frequently connected are his dissent in Olmstead v. United States (1928) and his concurrence in Whitney v. California (1927). In Olmstead, the Court reviewed whether the use of wiretapped private telephone conversations obtained by federal agents without judicial approval and then used as evidence constituted a violation of the Fourth and Fifth Amendments. Roy Olmstead was a bootlegger who was caught violating the Volstead Act through wires placed on his home and office phones. The wiretaps revealed the operations of the illegal business, as well as the bribing of police officers. According to the majority opinion, written by then Chief Justice William Howard Taft, no violation of search and seizure was involved since the wiretapping did not require entry into a house or office. The nowfamous Brandeis dissent argued that the Fourth and Fifth Amendments were applicable to the forms of search and seizure then available. Advances in technology, Brandeis understood, enabled the government to invade privacy in ways that the authors of the Constitution hadn’t imagined, and sustaining the conviction may have upheld the letter of the law but not the spirit. As Brandeis wrote, “If the government becomes a lawbreaker, it breeds contempt for law . . . To declare that in the administration of the criminal law the end justifies the means . . . would bring terrible retribution.” In Whitney v. California, Anita Whitney was convicted of helping to establish the Communist Labor Party in California, which advocated the violent overthrow of government. The Court upheld the conviction 9–0,
saying that the state had the power to punish those who abuse their rights of speech “to incite crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow.” Because Whitney’s lawyers had not raised the question of whether her actions constituted a “clear and present” danger to society that Brandeis accepted as the only circumstance allowing the government to interfere with the rights of speech and assembly, he was obliged to concur. But he wrote a separate opinion in which he explained his views on freedom of speech, and his words are still considered among the most powerful arguments on that right in American jurisprudence. “Those who won our independence believed that the final end of the State was to make men free to develop their faculties . . . [that] the greatest menace to freedom is an inert people . . . 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.” Brandeis was on the bench when Franklin D. Roosevelt was elected president in 1932. The return to Washington of more progressive politics was a welcome change for Brandeis after twenty-two years of Republican inaction. Brandeis believed that his seat on the Court precluded him from participating in many activities, including making public speeches, accepting honorary degrees, and discussing cases that came before the Court. But this did not prevent him from encouraging
Above: Justices Oliver Wendell Holmes Jr. (left) and Louis D. Brandeis were friends and colleagues for nearly fifty years. “Holmes and Brandeis, dissenting” has retained its meaning and symbolism to this day. Above, right: The Brandeis apartment in Washington, D.C., was the site of gatherings for Sunday tea. Much of the furniture had been in use from the beginning of the couple’s marriage. Right: In “The Living Law,” an address he delivered before the Chicago Bar Association, Brandeis traced the history of law in the United States and the shift from legal justice to social justice.
Left: Following his retirement on February 13, 1939, Brandeis received this letter of affection and esteem from Chief Justice Charles Evans Hughes and six associate justices of the Supreme Court. The only name missing is that of Justice James McReynolds, whom many considered anti-Semitic. Above: Brandeis strolled to the Supreme Court with daughter Elizabeth on his eightieth birthday, November 13, 1936.
and influencing others to advance his ideas. His biographer Alpheus T. Mason wrote that Brandeis had “emissaries in every conceivable field— politics, universities, law schools, journalism—all of whom he kept supplied with material on his ‘worthwhile’ causes.” And it was well known that many members of Roosevelt’s “Brain Trust” were both Harvard men and “Brandeis boys,” including Felix Frankfurter, Thomas Corcoran, Benjamin Cohen, A. A. Berle Jr., Dean Acheson, and James Landis. Their appointments, and those of many others in agencies and positions throughout the government, extended the Brandeis reach far and deep during the “New Deal” period.
In 1937, when Roosevelt tried to “pack” the Supreme Court in order to have a judiciary more receptive to his New Deal policies, Brandeis saw it as an assault on the independence of the nation’s highest tribunal. Roosevelt further sought to reduce the age of the Court by proposing that members over age seventy be asked to retire in six months. If they resisted, he proposed to assign each a younger justice to help “carry the load.” Since six justices were seventy or older, this could effectively have increased the number on the bench from nine to fifteen. Brandeis, then the Court’s oldest member, endorsed a response to the Senate committee from Chief Justice Charles Evans Hughes. Roosevelt was Although many of the Roosevelt forced to back down and is reported administration’s policies addressed to have commented on the Brandeis Brandeis’s concerns for social justice defection, “I never thought old Isaiah and the fate of working families, would do that to me.” Roosevelt he did not merely rubber-stamp New often invoked the name of the Deal legislation that came before the biblical prophet in both conversation Court. Most notably he failed to and writing to show his deep regard support the Frazier-Lemke Act, for Brandeis. concerning farm debt and mortgage relief, and the National Industrial On February 13, 1939, at the Recovery Act, which the Court age of eighty-two, Louis D. Brandeis found overstepped the limitations on stepped down from the Supreme government interference. But Court and returned to the life of a Brandeis welcomed much of the private citizen. new Democratic program, including the Banking Act, Social Security legislation, and unemployment insurance, which his daughter Elizabeth and her husband, Paul Raushenbush, authored and pioneered in Wisconsin. Brandeis continued to provide advice and recommendations through many intermediaries who occupied important government positions.
Above: The news of Brandeis’s retirement inspired cartoonists to reflect upon his long career and service to his country. Perhaps none captured the mood better than this image, “A Large Order to Fill,” which appeared in the Philadelphia Record on February 14, 1939.
“Threads of Principle” Retirement
Just as Brandeis’s Supreme Court Louis D. Brandeis died on October 5, nomination made headlines in 1916, 1941, a few weeks before his eightythe news of the justice’s retirement fifth birthday. His passing was noted captured attention around the world. in scores of law journals and other The letter of resignation Brandeis sent publications commemorating his life to President Roosevelt was but and his work. a single sentence, “Pursuant to the act of March 1, 1937, I retire this day In the justice’s honor, there was a from regular active service on the private family service, with friends bench.” Tributes poured in from and Court families in attendance, prominent members of government followed by a formal memorial and industry and organizations of all service on December 21, 1942. One stripes. The announcement also year after his death, his ashes were generated a stream of heartfelt letters buried beneath the porch of the law from private citizens, eloquent school building at the University expressions of their appreciation of of Louisville. When Alice Brandeis his life’s work. died in 1945, her ashes were placed in an urn beside those of her By all accounts, the years after late husband. retirement from the Supreme Court were happy ones for Brandeis, but the pace reflected his age and increasing frailty. He spent his time reading, writing letters in longhand, seeing friends and family, and working on behalf of Zionism and the establishment of a Jewish state in Palestine. He kept abreast of national and world affairs, and his correspondence is filled with both personal items as well as observations of unfolding events. Prominent members of the Jewish community continued to seek his counsel on matters relating to Palestine and the Zionist cause. These years also afforded him more time to spend with Alice and with their daughters and families: Susan and Jacob Gilbert and their children Louis, Frank, and Alice; and Elizabeth and Paul Raushenbush and their son Walter. The Brandeis home in Chatham on Cape Cod remained the center of the family’s summer lives, with active grandchildren always underfoot.
Below: Following Brandeis’s retirement, he and Alice hosted visiting delegations of Zionists at their home in Chatham. Although he no longer played an active leadership role, Brandeis remained devoted to Zionism and took a great interest in the future of Palestine. Opposite: Brandeis, shown c. 1935, enjoyed reading on his Chatham porch, according to his grandchildren.
“It was the vocation of the lawyer who had the vision to see the threads of principle in the small patterns of human controversy.” Paul Freund
The public disclosure of the justice’s last will and testament came as a surprise to many. The man who lived so modestly had left behind more than $3 million, most of it in lowrisk bonds, and he had amassed this then-large fortune despite refusing fees for his public-interest work and repaying his firm for the hours he spent in those pursuits. Moreover, he was able to bequeath this financial legacy even after a lifetime of generosity to causes and individuals he valued. In addition to providing for his family, Brandeis divided the remainder of his estate among Survey Associates, publisher of Survey and
Survey Graphic, influential publications on social issues, “for the maintenance of civil liberty and the promotion of workers’ education in the United States”; the library and law school of the University of Louisville; and the Palestine Endowment and Hadassah, for “the upbuilding of Palestine as a national home for the Jewish people.” The Brandeis legacy would live on in his still-influential Supreme Court opinions, concurrences, and dissents; in the Israeli kibbutz named in his honor; in the many Brandeis streets, clubs, and associations around the world; and in the academic institutions that would bear his name.
Right: Alice and Louis Brandeis outside their home in Chatham not long after his retirement from the Supreme Court, c. 1939.
Right: The Brandeis grandchildren enjoyed spending summers in Chatham with their grandparents. From left, Walter Raushenbush, son of Elizabeth and her husband, Paul; and Frank, Alice, and Louis Gilbert, children of Susan and her husband, Jacob. Grandson Frank Gilbert recalls being appointed the â€œGilbert News Serviceâ€? to provide his grandfather with the latest news. Below: The S.S. Louis D. Brandeis was commissioned on February 20, 1943, in Fairfield, Maryland, with members of the Brandeis family in attendance.
“The Aim Must Be High, the Vision Broad” Brandeis University
Education always held an exalted place for Brandeis and his family. His own experiences as a young student in Louisville and Germany, and especially his days at Harvard Law School, resonated throughout his life. In fall 1924, Harvard Law School dean Roscoe Pound was exploring the feasibility of increasing the size of the school’s faculty and student body as well as the physical plant. To review the expansion plans and help develop a fundraising strategy, Pound appointed a faculty committee that included Felix Frankfurter to review the proposals and goals. The changes Pound was proposing were inimical to Brandeis, who had an aversion to “bigness.” Brandeis made his displeasure known and delineated his own ideas for what the law school might become. Among his prescriptions for success were avoiding limitations of student access that might result from tuition increases; expanding geographic representation of the student body; and making provision for those preparing to teach at other law schools. As historian Philippa Strum has noted, Brandeis told his friend Judge Julian Mack that what was needed was “not a bigger H.L.S., but twenty Harvard Law Schools.”
university and members of his brother Alfred’s family. He donated much of his personal library to Louisville, writing dozens of letters providing instruction on where books should go and how to publicize the new holdings, and he also sent funds for properly preparing and preserving the materials. In donating his own book collection to Louisville, Brandeis intended to lay the foundation for specialized collections in various fields. He also asked friends and colleagues to forward their materials to help build truly comprehensive reference and research collections; to this day the law school library continues to receive copies of the original briefs filed with the U.S. Supreme Court. In 1997 the University of Louisville law school was renamed the Louis D. Brandeis School of Law,
By this time Brandeis had turned his attention to a school that he hoped would be one of those twenty Harvards, the University of Louisville. He envisioned an institution that would be a reflection of the city and its people and a resource for the community it served. He set his sights on strengthening two areas in particular: the libraries and the law school. Because of his life and work in Washington, he managed this endeavor through officials of the 87
Below, left: Brandeis University Board of Trustees chairman George Alpert, university president Abram Sachar, and Rabbi Israel Goldstein at the university’s inaugural festivities, October 7–8, 1948. Rabbi Goldstein organized efforts to found a nonsectarian university under Jewish sponsorship at the conclusion of World War II. Below: In March 1947, Albert Einstein (front row, center) met with the delegates of the New England Associates of Brandeis University in his home in Princeton, New Jersey. Left to right, front row: Abraham Shapiro, George Alpert, Einstein, S. Ralph Lazrus, and Norman S. Rabb; back row, Sidney H. Rabinowitz, James J. Axelrod, Barnett D. Gordon, Robert P. Cable, Yoland D. Markson, and Irving Usen. Opposite: A view of the campus statue of Justice Brandeis by sculptor Robert Berks. Trustee Lawrence Wien commissioned the work as part of the university’s celebration of the Justice Brandeis Centennial in 1956.
Below: The idea for founding a nonsectarian university under Jewish auspices was not new in 1948 when it became a reality. The notion of naming the university for Justice Louis D. Brandeis also was not new, but dated back at least to 1931, when Abraham Sakier of New York wrote to the justice about his plan to establish a secular institution named “Brandeis University.” Brandeis discouraged any further action and ultimately Sakier dropped his plan. Opposite: As early as 1924 Brandeis began donating books from his personal library to the University of Louisville, laying the foundation for specialized collections. Letters between officials of the university and Brandeis were exchanged over many years, with Brandeis providing both publications and the resources for their upkeep. The law school at the University of Louisville was renamed the Louis D. Brandeis School of Law in 1997. Brandeis chose the law school as his final resting place.
and the following year its law publication became the Brandeis Law Journal. True to Brandeis’s values, the University of Louisville was one of the first law schools in the country to require its students to engage in public service. In 1931 Brandeis got a letter from Abraham Sakier, a New York Zionist with ties to Palestine. Recalling a meeting with Brandeis eight years earlier, Sakier proposed the founding of a secular Jewish university named “Brandeis University” for the justice, citing the difficulties that Jewish scholars, teachers, and students often encountered at American universities. In his letter, Sakier described Brandeis as “the greatest Jew in the history of this country.” He then proposed the establishment of the Brandeis University Association, with himself as head.
Long averse to having his name used to commemorate his achievements, Brandeis discouraged any further action. But Sakier was not to be deterred, and a few days later he wrote to Brandeis saying that he wished to go ahead with his plan for the university and that perhaps after the fundraising for a “University in the United States” was completed, the question of the name could be raised again. Two years later Sakier returned to the same subject in a letter to Rabbi Stephen S. Wise, who not only turned Sakier away, but questioned the wisdom of founding an American Jewish university. In 1935, two years after his arrival in America, Albert Einstein became concerned over the quotas for Jewish professors and students in American universities, which reminded him of the more overt discrimination he had witnessed in Europe. By this time Brandeis and Einstein were correspondents, and Einstein wrote to Brandeis about exploring the establishment of a Jewish-sponsored university in the United States. Uncharacteristically, Brandeis, in his reply of March 21, seemed open to further discussion, writing, “I think there may be a chance of our discussing the matter.” But the idea of a secular American university under Jewish auspices languished until 1945, four years after Brandeis’s death, when a group of communal leaders headed by Rabbi Israel Goldstein, then president of the Zionist Organization of America and the Synagogue Council of America, gave it new life. Through labor leader Joseph Schlossberg, Rabbi Goldstein was put in touch with representatives
â€œThe aim must be high, the vision broad. It must always be rich in goals and ideals, seemingly attainable but beyond immediate reach.â€? Louis D. Brandeis
of Middlesex University, a small medical and veterinary school in Waltham, Massachusetts, whose future appeared uncertain. The school offered for purchase a charter and a campus in return for the promise that the school’s nondiscriminatory admissions policy would be maintained and its imperiled medical college saved. In six months, Goldstein, with the aid of his New York supporters and George Alpert of Boston, secured the Middlesex site. To attract prominent academic as well as charitable and philanthropic sponsorship for the university, Rabbi Goldstein secured the endorsement of Einstein. On February 25, 1946, the Albert Einstein Foundation for Higher Learning was chartered to begin fundraising and public relations efforts for a Jewish-sponsored university. Nondiscrimination in admission became a centerpiece of the new school’s mission, and resources went to establishing a first-rate undergraduate program. As plans were advancing, “growing pains” surfaced between Rabbi Goldstein and his supporters and the Einstein group. Goldstein relinquished his role in the effort in order to keep Einstein on board, but before long Einstein and his group withdrew as well over disagreements regarding university leadership and immediate organizational goals. The responsibility then fell to George
Alpert and a committee of seven men from the Boston area. Selected to head the new university, by this time formally named for Brandeis, was Abram L. Sachar, who had recently retired as the national director of Hillel. The principal goal articulated by the advisory committee and administration was to establish a small, high-caliber liberal arts institution avoiding what Justice Brandeis had called “the curse of bigness.” The university would be large enough to offer a range of educational opportunities and small enough to foster a sense of community. So what would Brandeis have thought of the university that bears his name? Attorney Albert Gans provided a fitting response in a February 1957 publication by Temple B’rith Kodesh dedicated to the justice’s memory: “Probably, if he [Brandeis] could have chosen, he would have selected no finer monument to his memory than that bestowed by a grateful people—a flourishing university memorializing his name and dedicated to his ideal of striving constantly for truth, liberty, and social justice.”
Above: “Brandeis University: The Challenge, the Assurance, the Pledge” contained the text of addresses given in honor of Abram L. Sachar as the first president of Brandeis University on June 14, 1948. Opposite: Students at work in the Brandeis library beneath a portrait of Justice Brandeis, c. 1950. The photograph appeared in a Look magazine article on the university. Justice Brandeis would likely have been pleased with the first library and the highly successful efforts of the Brandeis University National Women’s Committee members to fill its shelves with books and periodicals. The committee continues to support the Brandeis University Libraries today.
Brandeis, Louis D. Other People’s Money and How the Bankers Use It. Edited by Melvin I. Urofsky. Boston: Bedford Books of St. Martin’s Press, 1995.
Pasternack, Susan A., ed. From the Beginning: A Picture History of the First Four Decades of Brandeis University. Waltham, MA: Brandeis University, 1988.
Brandeis University. Brandeis on Business: Justice Louis D. Brandeis’s Commentary on Business and Society. In WorldView, Volume 2, Number 1. Waltham, MA: Brandeis University International Business School, 2006.
Sarna, Jonathan. “‘The Greatest Jew in the World since Jesus Christ’: The Jewish Legacy of Louis D. Brandeis.” American Jewish History, 81:3–4, Spring-Summer 1994.
De Haas, Jacob. Louis D. Brandeis: A Biographical Sketch. New York: Bloch Publishing, 1929.
Sayen, Jamie. Einstein in America: The Scientist’s Conscience in the Age of Hitler and Hiroshima. New York: Crown Publishers, 1985.
Gal, Allon. Brandeis of Boston. Cambridge, MA: Harvard University Press, 1980.
Strum, Philippa. Louis D. Brandeis: Justice for the People. New York: Schocken Books, 1984.
Garraty, John A., ed. Quarrels That Have Shaped the Constitution. New York: Harper & Row, 1987.
University of Louisville, the Louis D. Brandeis School of Law. Brandeis at 150: The Louisville Perspective. Louisville, KY: Butler Books, 2006.
Goldmark, Josephine. Pilgrims of ’48: One Man’s Part in the Austrian Revolution of 1848 and a Family Migration to America. New Haven, CT: Yale University Press, 1930. Goldstein, Israel. Brandeis University: Chapter of Its Founding. New York: Bloch Publishing, 1951. Lief, Alfred. Brandeis: The Personal History of an American Ideal. New York: Stackpole Sons, 1936. Lief, Alfred, ed. Brandeis Guide to the Modern World. Boston: Little, Brown and Company, 1941.
Urofsky, Melvin I., and David W. Levy, eds. The Family Letters of Louis D. Brandeis. Norman, OK: University of Oklahoma Press, 2002. Urofsky, Melvin I., and David W. Levy. “Half Brother, Half Son”: The Letters of Louis D. Brandeis to Felix Frankfurter. Norman, OK: University of Oklahoma Press, 1991. Urofsky, Melvin I., and David W. Levy, eds. The Letters of Louis D. Brandeis, five volumes. Albany, NY: State University of New York Press, 1971–1978.
Mason, Alpheus Thomas. Brandeis: A Free Man’s Life. New York: Viking Press, 1946. Paper, Lewis J. Brandeis. Secaucus, NJ: Citadel Press, 1983. 92
Created by Brandeis University to commemorate the 150th birthday of the late Supreme Court justice and university namesake