It takes three or four years,” Brandeis told Felix Frankfurter, “to find oneself easily in the movements of the Court … and it went hard with me.” A new justice had to learn to hear and decide cases, write opinions, and also figure out the interpersonal dynamics of the Court; he had to determine when to enter a written dissent and when to simply note disagreement. For Brandeis the hardest thing seems to have been adjusting to a schedule determined by others, “the confinement of work—always have to be there and seven days a week,” rather than the freedom he had long enjoyed to make his own schedule. Despite his disclaimer, Brandeis seems to have adjusted quickly to the routine of the Court’s work. Within his first few terms on the bench he developed his own style and began to carve out the niche he would occupy for the next twenty-three years—a voice of judicial restraint, deference to legislative policy choices, and a fierce protectiveness of individual rights, especially speech. During this time he also maintained a level of extrajudicial activity that, by current standards of judicial ethics, would be either impermissible or at best questionable in judgment. In his first years on the high court, Louis Brandeis found himself very busy.
AT THE SUGGESTION of both Attorney General Thomas Gregory and Edward McClennen, Brandeis went down to Washington so he could be sworn in on the last day of the Court’s term. McClennen had spoken with Chief Justice Edward Douglass White and with Holmes, who both urged this course. White told McClennen that a number of motions had to be considered and the work divided up among the justices before the Court stood down for its summer recess.
The courtroom in the former Senate chamber in the Capitol was jammed with spectators and well-wishers on Monday, 5 June 1916. Alice, Susan, and Elizabeth sat in the reserved seats. Alfred came from Louisville, and Pauline Goldmark from New York. George W. Anderson, who had helped steer the nomination through the subcommittee, sat there, along with a number of other old friends. A little before noon, a visibly nervous Louis Brandeis, Bible in hand, walked across the corridor from the cloaking room to the courtroom, and Chief Justice White administered the oath of office.
The Supreme Court in 1916. Seated from left: William R. Day, Joseph McKenna,
Chief Justice Edward D. White, Oliver Wendell Holmes Jr., Willis Van Devanter;
standing from left: Louis D. Brandeis, Mahlon Pitney, James C. McReynolds,
John H. Clarke.
Normally, Brandeis would have been the junior justice for at least a term or two, but five days after he took the oath and the Court recessed for the summer, Charles Evans Hughes resigned to seek the Republican nomination for the presidency. To replace him, Wilson named John H. Clarke, a former Ohio railroad lawyer and federal judge known for his progressive views. Brandeis may have known of him, since for many years Clarke’s law partner had been William E. Cushing, Brandeis’s friend from his Harvard Law days. Clarke, upon his nomination, wrote to Brandeis that he looked forward to working with him because of the “community point of view between us.” Moreover, if Brandeis thought half as well of Cushing as Cushing did of him, “there should be a basis for more than formally pleasant relations between you and me.” The two men did, indeed, get along well, and Robert La Follette attended a dinner at the Brandeis apartment in December 1916 where he met Clarke for the first time. “He is sincere and modest,” he told Belle, “but sure he and Brandeis love each other, and it is a great thing [for Wilson] to have put two such men on the bench.” Clarke regularly voted with Brandeis and Holmes, but in 1922 he resigned from the Court to promote American participation in the League of Nations. Had Clarke, who lived until 1945, not left the bench to be replaced with the archconservative George Sutherland, the entire constitutional history of the 1920s and 1930s might have been very different.
Over the summer of 1916, Louis and Alice made plans to give up their Boston home and move to Washington. Belle La Follette took it on herself to search for suitable lodgings; the Brandeises wanted a comfortable but not ostentatious building, one in which they could rent two apartments, a larger one in which they would live and a smaller one of two rooms for Louis’s office. The justice used the larger and lighter room for his study, while his law clerk had the smaller room. (Until the opening of the current Supreme Court Building in 1935, the justices did not have official offices, but either worked out of their homes or made arrangements for separate space as Brandeis did. Even after the new building opened, Brandeis refused to use the suite of offices assigned to him, considering the edifice far too pretentious for his taste.)
Belle found them just what they needed in Stoneleigh Court, an apartment hotel on Connecticut Avenue; it had the right configuration of rooms, although the dining room had a poor reputation. As compensation, it was little more than a block from where Justice Holmes lived at 1720 I Street, and in good weather the two men would walk together to the Capitol. In addition, the building had some smaller apartments that it rented out by the day or week, and the Brandeises would use them to house visiting family or friends. They immediately left the Stoneleigh in 1926, however, when the management made “improvements” and put in shops on the first floor!
Brandeis moved quickly to make the adjustments he deemed necessary for his new life. The day after his confirmation he dissolved the firm of Brandeis, Dunbar & Nutter, and the new letterhead read “Dunbar, Nutter & McClennen.” Brandeis continued to take money out of the firm, representing payments for work he had earlier done. In 1917 he received more than $27,000, but this quickly tapered off to $2,700 in 1918; he received his last payment from the firm in 1924, $642. He kept a checking account at the Merchants National Bank of Boston, which he used primarily for small expenditures. His gifts and payments to his family continued to be handled by Louise Malloch, who made sure that his taxes were paid on time and that income from bonds got reinvested. She also looked after various mortgages, took care of renting a summer place, and handled his frequent requests for information about his portfolio. For this he paid the firm an annual fee and also made occasional gifts to Miss Malloch. At the time of his appointment his investments totaled more than $2 million, and during his years on the bench his annual income, consisting of his salary as a justice and income from his portfolio, ranged from a low of $108,000 his first year to $144,000 in 1928. In the 1930s, with the country sunk into the worst depression in its history, Brandeis’s conservative investment policy paid off handsomely, as his annual income from his portfolio averaged around $120,000.
Louis and Alice in buggy in Washington, D.C., 1921
He resigned from the garment workers’ arbitration panels and the numerous reform organizations to which he belonged, but maintained his connection with the Harvard Law School Alumni Association and with the Zionists. Although many people expected that he would take his longtime secretary, Alice Grady, with him, he decided that his only assistant would be a law clerk. Miss Grady eventually left the firm to become deputy commissioner of savings bank life insurance, and Brandeis continued to work closely with her on the program for the rest of her life. For many years he would stop off in Boston on his way between Washington and Cape Cod, and would turn up at the firm’s offices to greet old friends and use the conference room to meet his visitors.
Brandeis had invested conservatively, but his portfolio included a large number of railroad bonds, and he worried whether this might disqualify him from hearing the many cases that came to the Court each year involving railroads. He had met with Chief Justice White the morning of his investiture, and the two men had ridden down to the Capitol together. On the ride Brandeis had asked White if he foresaw any problems. White said he did not, but Brandeis wanted some reassurance and on 29 June wrote a long letter to White explaining that he had, over the years, invested “in what were believed to be absolutely safe investments intended to be permanent and yielding a low rate of return.” The management of these investments had been given over to the direction of others, and he wanted to continue that practice while on the Court. He had treated his property “like a highly conservative trust estate,” and while he did not want to hold anything that might disqualify him from hearing a case, he did not really see how he could change his portfolio to reduce that danger lower than it already was. White wrote back that he fully agreed with Brandeis’s view and that he saw no problem with the investments that would affect the work of the Court.
JUSTICE HORACE GRAY hired the first law clerk at the Supreme Court in 1882, a recent graduate of Harvard Law School; Gray had begun the practice when chief judge of the Massachusetts high court, and Louis Brandeis had been one of his clerks. Gray and the other justices who used clerks paid for them out of their own pockets until 1922, when Congress allowed each justice to hire one clerk at an annual salary of $3,600; two years later Congress made law clerk positions at the Court permanent.
Gray relied on his half brother, the Harvard Law professor John Chipman Gray, to choose the clerks for him, and when Oliver Wendell Holmes took Gray’s seat on the bench, he continued the arrangement. After John Gray retired, Felix Frankfurter chose the clerks for Holmes, and Brandeis asked Frankfurter to do the same for him. The first man Frankfurter sent down from Harvard, Calvert Magruder, stayed one year; the next two, William A. Sutherland and Dean Acheson, remained for two terms, and the rest of the clerks served one year apiece. It has long been thought that Brandeis, like Holmes, took Frankfurter’s students sight unseen. As for choosing the man, “I shall leave your discretion to act untrammeled,” he told Frankfurter. “Wealth, ancestry, and marriage, of course, create presumptions; but they may be overcome.”
Dean Acheson, Brandeis’s law clerk from 1919 to 1921
Brandeis used his experience as Gray’s assistant as a template for what he expected from his own clerks. They served primarily as research assistants, checking points of law and earlier cases but above all providing him with the massive amounts of factual material that he utilized in his opinions, especially his dissents. He did not expect them to write his opinions and would have been appalled at the practice adopted by many later justices of assigning clerks to draft decisions. He assumed, however, that they would be accurate and discreet. When Paul A. Freund met the justice at the start of the 1932 term, the first words Brandeis said to him were: “Here you shall see a good deal and hear a good deal that is highly confidential. There have been no leaks from this office in the past, and I mean that there shall be none in the future.” During the term some of the clerks would occasionally get together for dinner, just to trade news and gossip. The most popular clerks at these dinners were from Harlan Fiske Stone’s chambers, because Stone loved to tell his clerks stories of what was going on. Brandeis’s clerks, on the other hand, could contribute nothing, because he never spoke to them about what occurred in conference. He told Louis Jaffe, his clerk for 1933–1934, that he was never to let anyone know what they were working on, not even the clerks of the other justices. But, he added slyly, “of course you can listen to what they tell you about their Justices.”
Above all, Brandeis demanded the highest quality of work from his clerks. Magruder, a scion of southern gentility, had heard stories of Brandeis’s legendary intellect and work habits and, when he met Brandeis for the first time, found all of the stories to be true. “It was a bit disconcerting to see how he eschewed all frivolity,” he recalled, “and sought to make every minute count for something worthwhile.” When it came time to turn in his first research memo to the justice, Magruder had a minor anxiety attack. “I can’t recall ever having been the victim of such terror as L.D.B. caused me at first. The earliest memorandum handed in—well, my hand very nearly shook the words off the paper as I placed it on his desk.” The work evidently was satisfactory, and Brandeis told Frankfurter, “Magruder is proving very helpful, and I have added faith in your picking.” Although he gave Magruder only qualified praise in a letter of recommendation, he later told Frankfurter, “Among all my law clerks, Magruder was the best critic I had.” Graham Claytor said that Brandeis did not feel tied to his opinions and always welcomed suggestions for improvement, and Dean Acheson reportedly had “very heated discussions” with the justice. Just as Gray had expected his clerks to question and thus refine his arguments, Brandeis expected the same of the young men who came to him.
He also expected that in going over his work, they would check for accuracy, especially in the draft that would go out to his fellow justices for comment. After reading it, each of the other justices would send his “return” indicating whether he agreed or disagreed, and any comments on particular points. James Landis, later to be dean of Harvard Law School and chairman of the Securities and Exchange Commission, served as Brandeis’s clerk in 1925–1926. He was with Brandeis in his study when Holmes’s messenger brought back a return pointing to an obvious proof error. A few minutes later Justice Pierce Butler’s return came, with a note regarding an incorrect citation. The justice turned to Landis and asked him if he had ever heard the story of the employee of the Bank of London who when asked by his manager what two and two equaled unhesitatingly said four. The justice then did the same as the bank manager, took out a piece of paper, wrote 2 and 2, drew a line, and then wrote 4.
Brandeis then turned to another opinion that Landis had been working on, and asked whether he had checked to make sure that two statements of fact were indeed correct. Landis had not, assuming that Brandeis would be right. “Sonny, we are in this together,” Brandeis said. “You must never assume that I know everything or that I am even correct in what I may say. That is why you are here. Don’t let’s have it happen again.” The worst of it, however, came after Landis went to check out one of the facts and discovered that while it was not entirely wrong, correcting it opened a whole new chain of cases and arguments that he had ignored. He had also made the mistake of supposing that when Brandeis gave him an assignment, it was always a rush order. He now knew that it was never so. The justice wanted accuracy and completeness, and he expected his clerk to take as long as necessary to get it right.
In the prohibition case of Jacob Ruppert v. Caffey, the brewer claimed that his beer, which contained 3.4 percent alcohol (well above the Volstead Act limit), was not intoxicating. Neither the lower court nor the Court accepted this contention, and Brandeis decided to dismiss this argument by burying it under pages of footnotes, all of them citing legislation and state court decisions that regulation of intoxicating beverages could not be made effective if it had to depend upon whether or not a particular liquor would cause drunkenness. Dean Acheson had the responsibility for looking up all the statutes and decisions, and he decided to attend Court on the Monday the case was scheduled to come down. While the other justices read their opinions, a page kept bringing Brandeis volume after volume of case reports, and when Chief Justice White nodded at him, Brandeis shook his head, indicating the opinion had to be held over. Acheson realized something “was very wrong” and immediately headed back to the justice’s study. When Brandeis came in, he put two volumes of state reports on the desk. “Did you read all of the cases cited in the footnotes?” he asked. Acheson said that he had. “Suppose you read these two again.” The cases had no bearing on the argument and had slipped in from digests that Acheson had used to organize the notes. He went in to apologize, and Brandeis dismissed the matter with one sentence: “Please remember that your function is to correct my errors, not to introduce errors of your own.” Many of the clerks reported how they had made some error early in their tenures and how Brandeis had never chastised them; one wrote, “I have the best judge in the land to correct my errors, and … fortunately for me he is also the gentlest and kindest of men.” None of them, apparently, sinned more than once.
Once clerks had proved that they could do the work, the justice showed himself quite receptive to their ideas, and as Landis described it, “He took you in, substantially as a junior partner of his firm.” When a clerk raised what Brandeis considered a legitimate argument, he willingly delayed circulating or even handing down an opinion until the two of them came to some settlement. If they could not agree, the clerk understood that the ultimate responsibility lay with the man in the robe. Paul Freund said that the justice would treat a memorandum from his clerk as a working draft of the opinion and subject it to the same treatment as his own early drafts, namely, tear it apart. Occasionally a clerk might recognize a sentence or two from his memo in the final opinion.
Brandeis also expected his clerks to take the initiative when they had an assignment and not just look at the direct cases and facts involved but find whatever might be necessary so that he could write with the assurance that all he needed was at hand. This research took place before the computer age, when a legal researcher can use LexisNexis and Google and instantly have all the citations on the screen. His clerks had to do it the old-fashioned way, going to the law library and using the decennial digests for state and federal case citations, and other tools for statutes. They called government offices to get reports or copies of hearings, kept track of articles appearing in law reviews, and when they spotted a title that might be relevant immediately sent for a copy. Some used typewriters and others wrote by hand, but their research memoranda often ran for dozens of pages. One clerk apologized after he submitted six pages when the justice had asked for a brief memorandum, and promised that in the future he would “try to think more and write less.” There is little doubt that Brandeis read all of it. In the Southwestern Bell case, in which Brandeis’s dissent pointed to a new way of evaluating rate decisions, William F. McCurdy prepared a research memorandum on how different state agencies assessed relevant costs that ran more than two hundred pages, complete with charts.
Until his last few terms, Brandeis did not use his clerks to read the certiorari petitions filed with the Court asking for review of lower-court decisions. Some members of the Court had their clerks go through the hundreds of requests, writing up brief memos on those that seemed to warrant further scrutiny and indicating those that should be dismissed for lack of merit. This practice became more widespread in the 1950s and 1960s, when the number of petitions grew into the thousands. In 1972, Chief Justice Warren Burger began the “cert pool,” in which several justices had their clerks divide up the flood of petitions and write one “pool memo.” Brandeis read each and every one of the petitions himself, believing that he, and not the clerks, had the responsibility for deciding which cases should go on the Court’s docket. He had been appointed to the bench, not they. He did not, however, spend a great deal of time on this chore. Unless the petitioner could make out a clear and convincing case why the Court should accept the case for review, Brandeis tossed it into the “dismissed” pile.
In reading over the memoirs written by some of the clerks, and having spoken to several of them, I am struck by the overwhelming sentiment of enormous respect. Many of them considered Brandeis the greatest man they had ever met, as well as perhaps the greatest justice of his time. James Landis said that his year with Brandeis was the best of his life, a view shared by several others. After their year in Washington many stayed in touch, sent him copies of their writings, and stopped by to see him on the Cape or in Washington. Each of them had his own stories of how hard the justice worked, the high standards he set, and how each felt challenged to meet his demands.
Several of them told a variation of how they worked through the night preparing a research memorandum, how they then would go up to Brandeis’s study at five or six in the morning to slide their report under the door, only to feel it being pulled through from the other side. By the time Paul Freund came in 1932, a sort of tradition had grown among the Brandeis clerks, each one of them claiming to have had this experience. Freund said he fell into it as well, although the justice did not care if you worked all night, so long as you did a good job.
His clerks all admired Brandeis and perhaps even felt some affection for him, but he never tried to cultivate the close relations that Holmes, Frankfurter, and later William Brennan enjoyed with their clerks. Holmes looked on his clerks as surrogate sons and used them for all sorts of things besides research, such as pouring drinks and reading to him. Frankfurter’s clerks adored him and would not tolerate criticism of him. As one clerk told me, to be with Frankfurter for one year meant being in love with him for life. Walter Gellhorn, who clerked for Stone in 1931, thought Brandeis was “very aloof” from his clerks personally; they had come to work for him, and he was all business. Nathaniel Nathanson, who clerked for Julian Mack before going to Brandeis, found the difference between the two men somewhat jolting. Whereas Mack went out of his way to be cordial and friendly to his clerks, Brandeis “did not immediately clasp his law clerk to his bosom as a member of the family. On the contrary, he seemed to keep personal relations at a minimum.”* The Brandeises, however, often invited his clerks to the dinners they gave so that the young men could meet and learn from their guests.
Old Supreme Court Library
Brandeis expected good work, and when he got it, as Acheson noted, he “was not given to praise in any form.” He treated his clerks as adults and left them on their own to do their job; he called them by their last names and was not at all paternal. Robert Page, who clerked for Brandeis in 1926–1927, had gone to a formal party one night in white tie and tails and then, still awake at four in the morning, decided to go to the office to finish an assignment. About 5:30, Brandeis walked in, saw Page in his finery, and said, “Good morning, Page,” as if it were the most natural thing in the world. Nathaniel Nathanson, who clerked in 1934–1935, mustered up the courage after several months to ask the justice if he could take a weekend off to go to New York. He received the permission, and when he returned to work on Monday morning, Brandeis greeted him with “Well, sir, have you quite recovered from your debauch?” Nathanson assured him that he had.
The justice had trouble with only one clerk sent down from Harvard—Irving Goldsmith. “It looks at the moment as if Goldsmith would prove himself impossible,” Brandeis wrote to Frankfurter, “and that soon. I spoke to him frankly yesterday after the second grave offense.” Brandeis had told him to report to work at 9:00 each morning, he had not shown up until noon, and Brandeis had been unable to reach him at his hotel. Goldsmith had apologized, claiming that he had food poisoning and that the hotel clerk had failed to wake him; he promised he would buy an alarm clock. Two days later he again failed to show up before Brandeis left for the Saturday afternoon conference, even though the justice had told him that specific work had to be done before that meeting. Brandeis also suspected that Goldsmith had bad habits, “the victim of drink or worse vices.”
On receipt a distraught Frankfurter immediately offered to send another man, Harry Shulman, then a research fellow at Harvard, who would, in fact, be Brandeis’s clerk the next term. As it happened, Frankfurter’s telegram had gone to the Court, and the marshal had called Brandeis’s office. Goldsmith had gone down to get it and, seeing the contents, had become very upset, promising Brandeis he would reform and would never be late again, and that all of the work would be done. As Brandeis told Frankfurter, had he seen the telegram first, he would have agreed to take Shulman, but “making the change would be a severe blow to G. and might impair his future success for an appreciable time.” So he sat Goldsmith down and made quite clear to him what he expected and the standards involved, and wanted to know if the young man could work at this level. Goldsmith, Brandeis told Frankfurter, “has certainly had the scare of his life and seems determined to make good.” But “it is a comfort to think of Shulman as a possible reserve.” Goldsmith managed to shape up, and if not the best clerk Brandeis had, the justice sent no more complaints to Frankfurter.
Of all the clerks, only one had reservations about his time with Brandeis. David Riesman went down to Washington and met briefly with Holmes, Brandeis, and Benjamin Nathan Cardozo, and then contacted Frankfurter, telling him that he would much rather clerk for Cardozo than for someone who reminded him of his stern father. Frankfurter insisted that this was precisely the reason that Riesman should take the position with Brandeis. The justice and his new clerk did not hit it off well, when at their first meeting Riesman told Brandeis that he thought Zionism was nothing more than Jewish fascism. After a moment of silence the jurist said he would not discuss the matter because Riesman had no understanding of history. Riesman, who remained critical of Brandeis, later said that he thought he had let the justice down and felt guilty about it. “I always had the impression that Freund and the other clerks had done so much for him, and I didn’t feel like I made a real contribution.”
When Riesman finished his year, he incurred the justice’s displeasure because he chose to go back to Boston and work for a law firm. Whatever their differences, Brandeis recognized Riesman’s intellectual talents and wanted him to use them to benefit the less fortunate. “The fact that I had friends in Boston,” Riesman told an interviewer, “and season tickets to the Boston Symphony was totally frivolous and unworthy of consideration.” Nonetheless, although Riesman thought Brandeis less than responsive to the needs of his clerks, at the end of the year he wrote to Frankfurter that he considered Brandeis the ideal judge, and “I have made his character a test of my own…. His severe self limitations will grapple with me throughout life.” In the end, Riesman did return to Boston, but not in private practice. He taught at the University of Buffalo Law School and founded a program to place academics fleeing from Hitler in American universities (to which Brandeis donated funds). He became interested in sociology and wrote one of the most influential books about American society after the war, The Lonely Crowd (1950). He then returned to Harvard, which created a special chair for him in social sciences. The justice would have been pleased.
In 1936 some of his clerks thought they might arrange a dinner with all his former clerks to mark his twenty years on the Court. They went to Mrs. Brandeis to see what she thought of it, and she immediately squelched the idea. She said the justice would not like it, and would not want them to spend their money that way. He would much prefer it, she said, “if each of us would sit down and write the Justice a letter telling him what we had been doing for the advancement of mankind.” As Calvert Magruder noted, “Since most of us couldn’t think of anything we had done for mankind, the suggestion fell through!”
That speaks more for modesty on the part of the clerks, since nearly all of them went on to become distinguished lawyers, judges, government officials, and law professors. Dean Acheson held a variety of high-ranking jobs in the government, eventually becoming secretary of state in the Truman administration. James Landis helped to create and then chaired the Securities and Exchange Commission. Calvert Magruder and Henry Friendly became judges on U.S. courts of appeals. Graham Claytor served as secretary of the navy under President Carter and then came out of retirement to head Amtrak.
While Brandeis did not insist that his clerks go into teaching, there is no question that it gave him great satisfaction when they did. Four of them went back to Harvard, including James Landis, who became the youngest dean in the school’s history. But Brandeis derived even greater pleasure when they went elsewhere, and his clerks taught at Wisconsin, Yale, Buffalo, Northwestern, and Chicago. Whenever they sought his advice, he suggested they not go to the big cities like New York and Chicago, where a wealth of talent already existed. They should practice or teach in smaller places, which needed them more. When he found out that more than half his clerks had gone into teaching, he remarked with great satisfaction, “Now I have a majority.”
One other person played a key role in the smooth operation of Justice Brandeis’s chambers: his messenger, Edward Poindexter. In those days every justice had a messenger, and since they worked out of their homes, these men played an important role in bringing mail, briefs, and case files from the clerk’s office to the justice, going to the Library of Congress to fetch books, and often assisting in social events. Poindexter became invaluable to Alice once she and the justice began entertaining regularly. Unlike the clerks, Poindexter did not seem to hold Brandeis in awe.
Warner Gardner, who clerked for Harlan Fiske Stone in the 1934 term, recalled that he used to run into Poindexter occasionally at a drugstore, where the elderly black man would take some time for himself. Gardner learned that Brandeis was insistent that his mail be picked up and brought promptly to his home after both the morning and the afternoon deliveries to the Court. Poindexter had decided that nothing terrible would happen to the world or to him if, after picking up the morning mail, he divided it in halves, and delivered one half in the morning and the other in the afternoon.
IN WRITING HIS OPINIONS, Brandeis adopted the same methods he had used as a lawyer. Once he had been assigned a case, he sat down and, using an old-fashioned fountain pen, wrote out in longhand on a yellow legal-size pad the nub of the case, the question posed, the Court’s decision, and the rationale. This rarely took more than a page and a half. Because he did not employ a typist, Brandeis sent the handwritten draft to the Court’s printer, who would have two typeset proof copies ready the following morning. Edward Poindexter would deliver the drafts and pick up the proofs. The clerk would take one set, go over it for typographical errors, and mark any queries he had for the justice. Brandeis would then begin revising and expanding the opinion. One of the most tedious parts of this work involved the statement of facts, a task that many justices then and now assigned to their clerks. Brandeis did it himself, because he believed that he could not properly comprehend the legal aspects of a controversy unless he fully understood the facts, a view that had been basic to him since his first years in practice. He also assumed that if he could convince people who disagreed with him about the correctness of his factual assertions, he would have a better chance of persuading them that he also had the proper legal argument. Once the clerk brought him the results of his research, Brandeis inserted what he needed into the text, often cutting up the research memo and pasting paragraphs in at the appropriate places. One has to admire the printer, not only for being able to read the justice’s difficult handwriting, but also for being able to figure out from all the arrows and insertions and emendations just how Brandeis wanted to change the draft. When Brandeis finished with the latest iteration, off it would go to the printer, while the law clerk received a new round of research requests. As one of his clerks said, the old adage that genius is the capacity for taking infinite pains might well have been coined with Brandeis in mind. This process would be repeated through many drafts, in some cases as many as fifteen or twenty, each draft refining an argument, adding proofs, and citing new cases, government reports, and congressional hearings. In a revolutionary step, Brandeis became the first justice to cite a law review article.
Some of the justices found such materials disconcerting, and a few believed them unsuitable for inclusion in Supreme Court opinions, but Brandeis kept using them. Willard Hurst, who clerked for Brandeis in 1936, recalled how they employed law review notes for one opinion and played with the wording so as not to unduly upset the brethren. “Mr. Justice McReynolds,” Brandeis remarked with a twinkle, “did not favor Law Review citations.” Just as Brandeis had used all sorts of non-case materials in his Muller brief, so he utilized them in his Court opinions as well and continued the campaign begun many years earlier, to teach judges—in this case his colleagues on the Supreme Court—the facts of modern industrial life.
Brandeis wrote carefully, organizing his arguments in a logical sequence, buttressing them with facts. As Dean Acheson put it, “Very early in our association I awakened to the fact that the law library did not contain all the tools of our trade.” He and all of the clerks spent much of their time at the Library of Congress looking up statistical reports, history books, and other sources. Brandeis instructed his clerks to look with suspicion on every fact until it was proved from the record or other sources, and to look with equal skepticism on every statement of law until they had exhausted all authorities. If his opinions were to provide lessons, they had to be exactly right on both fact and law.
Once satisfied that he had said everything that needed to be said, and in the right manner, he would send out copies to the other justices and await their returns. If he wrote for the majority, most of the time the returns said little more than “Yes” or “Fine” or “I agree.” Holmes would be more enthusiastic, with “A sockdoger” or “I am in it with both feet.” If one of the justices had a question, or a minor suggestion, Brandeis would make the necessary alteration. Then it would be sent back to the printer and to the clerk of the Court for distribution after the opinion had been announced from the bench.
Work sheet for an opinion
Over the course of his nearly twenty-three terms, Brandeis wrote 454 opinions speaking for the Court. When he wrote the majority opinion, he recognized that he spoke for at least four others besides himself and so kept the rulings as narrow as possible, a trait that also fit well into his philosophy of judicial restraint. Although only a few of these became landmark decisions, such as his opinion in the Erie case, Justice Robert H. Jackson believed that some of Brandeis’s lasting work came in these cases where he led the Court in interpreting what Jackson called “the great life-giving clauses of the Constitution,” and also in pioneering new fields such as administrative law. Here Brandeis’s work as an attorney played a very important role. During his career as a lawyer Brandeis had been “constructive, practical and bold” and honed the skills that would allow him to set up a new interpretation of law, marshal the facts, and set forth an interpretation of the law that commanded the majority.
He felt no such compunction when he wrote in dissent, and in his seventy-four dissents we find all of Brandeis’s distinguishing characteristics—attention to the context in which a law had been passed, the factual situation that the legislature had relied on in enacting the law, the necessity for the judiciary to defer to the legislative branch in policy making, the attention to individual liberties, and especially the role that speech played in a democratic society. These lengthy dissents led Harold Laski to suggest to Holmes, “If you could hint to Brandeis that judicial opinions aren’t to be written in the form of a brief it would be a great relief to the world.” They are, however, legal briefs—Brandeis briefs written to explain to the bench, the bar, and the public why the majority had erred. Brandeis intended them to be convincing, and therefore they needed to be fact laden. But they also had to instruct, and a number of clerks reported a similar story. After justice and clerk had labored over a dozen or more versions of a dissent, Brandeis would then say, “Now I think the opinion is persuasive, but what can we do to make it more instructive.”
When it comes to the art of judicial dissent, Brandeis is the acknowledged master. Holmes, perhaps the greatest stylist of the Court, often seemed more concerned with philosophy than with jurisprudence. William O. Douglas, who took Brandeis’s seat on the Court in 1939, dissented often, frequently just to register his disagreement with the majority. He did not care if he won other justices over by his arguments, since, as he often put it, “the only soul I have to save is my own.” Brandeis wrote to educate. He hoped to teach his brethren, but understood that success with them would be a rare thing. So he kept up collegial relations with them and worked on educating others, especially lawyers and teachers, on the necessity of relying on facts in constitutional interpretation.
This “teaching” is part of a constitutional dialogue, considered by many scholars to be an important function of the Court. Each time the Court is called upon to interpret a constitutional clause, it does so two ways. One is fact specific: What does the clause mean in terms of the case at hand? The other is more general, trying to tease out broader rules for the guidance of lower courts in the future. A dissent may be narrow, in that the justice believes the majority erred in the particular instance, or it may be broad, indicating disagreement with the larger principles. Dissents set up a marker to indicate that there might be something wrong with a decision, and to enunciate what the dissenter believed to be correct. Judges could then respond to that dissent, ignoring it, arguing with it, or adopting it, and they in turn espouse new ideas that may be open to future challenge. Brandeis said that he had great faith in time, and over the more than two decades he sat on the bench, he would see a number of his dissents adopted by the Court; in the years after his retirement and death, the Court came to accept almost all of his views.
Chief Justice John Roberts, in discussing the characteristics of influential justices, suggests that the ones who ranked highest in effectiveness were the “collegial pragmatists,” the “secure justices who know who they are,” “judges who show personal as well as judicial humility,” “those who know when to hold their tongues,” and “those who are aware of a case’s practical effects.” These judges ranked far higher than the self-centered players, the narcissists, the loose cannons, and the ideological purists. Although Roberts did not mention Brandeis by name, certainly he exemplified all of the traits on the first list. He had no need to dominate either the Court or his colleagues, and in many instances shaped the Court’s majority to reflect his beliefs in the new jurisprudence that recognized the need to reconcile abstract principles of law with contemporary facts. Because of the heavily conservative makeup of the Court during the time he sat on it, he carefully chose those cases where he could make a statement that would teach, and there are few decisions in the Court’s long history that provide as effective lessons as the Brandeis dissents. Modern scholars have consigned many of the conservative decisions of the 1920s and 1930s to footnotes, but they continue to study the Brandeis opinions and hail him as the master of judicial pragmatism.
Although Brandeis—legitimately—is often held up as the model of judicial restraint, this does not mean that he had no judicial philosophy. Judicial restraint, the idea that courts should defer to the legislative branch in policy choices, constituted a key part of his belief, and probably dated back to his law school days and friendship with James B. Thayer, who wrote extensively on the proper role of judges in interpreting the Constitution. Another aspect involved the role of facts in determining law, and Brandeis considered it axiomatic that since facts determined law, the law had to reflect the realities of contemporary life. There is a great debate between those who subscribe to the notion of a living constitution, in which the meaning of constitutional powers and limits changes to reflect the needs of modern life, and those who advocate the original intent of the Framers as the fixed and unchanging meaning of every constitutional phrase. Champions of this latter view claim they practice judicial restraint, while judges who promote a living constitution are allegedly activists, writing their own ideas into law.
Brandeis would have found this distinction confusing at best and irrelevant at worst. In an early draft of a dissenting opinion in 1922 he wrote: “Our Constitution is not a strait-jacket. It is a living organism. As such it is capable of growth—of expansion and of adaptation to new conditions. Growth implies changes, political, economic and social. Growth which is significant manifests itself rather in intellectual and moral conceptions than in material things. Because our Constitution possesses the capacity for adaptation, it has endured as the fundamental law of an ever developing people.” For Brandeis, throughout his career as a lawyer and as a judge, the original intent of the Framers had been to create an instrument that would change as the nation changed, but at all times relying on fixed and immutable moral values. This is, in many ways, a very conservative view.
ON 9 OCTOBER 1916, Brandeis dropped a note to his daughter Susan saying that he had just returned from the opening day of the term. Justice Clarke had been sworn in, many motions had been presented, and the first case had been scheduled for argument the following day. Then, he anticipated, there would be a “steady grind for the next eight months and more. The amount of work piled up is stupendous.” He expected that he would be able to keep “Master Magruder fully occupied.”
Part of his work that first term would include getting to know the eight men with whom he would sit and deliberate. He had met Chief Justice White before his swearing in, and like most people immediately liked him. A large man, White had a “bulky presence” that, according to one spectator, “broods over the whole courtroom.” Originally appointed by Grover Cleveland in 1894 as an associate justice, he was the first person elevated to chief justice from within the Court. A polite and kindly man, he was remembered by Mrs. Joseph Lamar as “quite early Victorian in his courtesies.” Brandeis thought he belonged to an even earlier age. White “had the grand manners,” Brandeis told Frankfurter, “and was of the eighteenth century.” Brandeis had no illusions, however, about where White stood on the key issues coming before the Court. While not a reactionary, White had a profound respect for property rights and skepticism about reform.
Brandeis knew two of his colleagues fairly well. Oliver Wendell Holmes Jr. had sat on the federal bench since 1902, after two distinguished decades on the Supreme Judicial Court of Massachusetts. The two men had been friends ever since meeting shortly after Brandeis returned to Boston to begin practice with Sam Warren, and during the confirmation fight Brandeis had said that he had the same philosophy of the Constitution as did Justice Holmes. He and Holmes both agreed on the need for judicial restraint, and although the two men would become famous and the darlings of the liberals because of their dissents during the 1920s, in fact they differed significantly in their jurisprudence (see below, chapter 22).
James Clark McReynolds had been attorney general in the Wilson administration, but Brandeis had not realized at the time that McReynolds went so far beyond conservative as to be legitimately called a reactionary. Nor did Brandeis recognize at the time the depth of McReynolds’s anti-Semitism. McReynolds detested Brandeis and later Benjamin Cardozo, and there is no official portrait of the Court in 1924 because McReynolds would not sit next to Brandeis as protocol required; when Brandeis retired in 1939, McReynolds refused to sign the traditional letter of farewell. He returned one of Holmes’s dissenting opinions with the intimation that Brandeis had made him go wrong and then added a remark that the Lord had tried to make something out of the Hebrews for centuries, but finally gave up and turned them out to prey on mankind “like fleas on the dog.” Often during conference McReynolds would ostentatiously get up and leave when Brandeis spoke, standing outside until Brandeis had finished and then returning.
For his part, Brandeis ignored McReynolds’s crudity and tried to maintain at least a semblance of civility in the daily workings of the Court. He of course sent drafts of his opinions to McReynolds, who would sometimes send the return with an “OK” or a surly comment that he disagreed but would not bother to dissent. His clerks could remember only one or two times when Brandeis said anything about McReynolds, and then nothing spiteful. Even with Frankfurter he would not denigrate McReynolds, but said that he had an “extraordinary personality,” that of a Naturmensch, a “child of nature” without cultivation, who could say cruel things to his colleagues, a “lonely person [with] few real friends.” Brandeis seemed more upset over the fact that McReynolds did not do his work well, “is lazy, stays away from Court when he doesn’t feel like coming,” thereby forcing the Court to reschedule oral arguments. Holmes simply called him an irrational savage.
The rest, with the exception of Clarke, could be counted as conservative, but Brandeis enjoyed collegial relations with all of them except McReynolds. He particularly came to admire Willis Van Devanter, whose craftsmanship he greatly respected, a feeling apparently reciprocated. Brandeis compared Van Devanter to a “Jesuit general” in the suppleness of his mind and believed that during much of the 1920s the real leader of the Court was not Chief Justice Taft but Van Devanter, whose advice Taft sought constantly. When the Court divided, Brandeis would say that if he could convince Van Devanter, the opposition would collapse. Brandeis, like Taft, often sent drafts of his opinions to Van Devanter for comment before circulation. Brandeis also thought well of William Rufus Day, an admirer of William McKinley’s who would give each justice a carnation on McKinley’s birthday. As Brandeis came to know Day better, he realized that the man had intense feelings as well as a good mind, and that on some issues, such as labor unions, he could be a “hot little gent.”
BRANDEIS HANDED DOWN his first opinion for the Court on 4 December 1916 in a case involving Iowa and Pennsylvania statutes requiring ice cream to contain a fixed percentage of butterfat. Although some of the conservatives might have grumbled, this case fell squarely into a series of precedents on the police power in which the courts had refused to second-guess the legislature on health matters. The decision—Chief Justice White scribbled on his return, “Yes. E.D.W. Very well done. Indeed fine!”—is a model of how Brandeis would write in the future. First came the statement of the facts of the case, including a definition of commercial ice cream, then a statement of the accepted law on the subject, the practice of the Court to defer to legislative judgments, and then the conclusion that the lower courts had been correct in upholding the laws—all in a little over three pages. During his first term Brandeis delivered the opinion of the Court in twenty-one cases, concurred in or dissented without opinion six times, and wrote two dissents, which, like his opinion in the ice cream case, also set the pattern for the future.
The Court at the time had established “reasonableness” as the criterion for judging the extent of power that Congress enjoyed under the Commerce Clause and the degree to which state laws might impinge on federal authority. But as some commentators pointed out, reasonableness could be a wild card, since its definition depended upon the subjective judgment of five members of the Court. The Winfield case showed how wild the card could be.
James Winfield had lost an eye while working for the New York Central in interstate commerce, in a true accident for which no negligence or blame could be ascribed; while tamping down a cross tie, he struck a pebble that bounced into his eye. He could not claim benefits under the Federal Employers’ Liability Act, which required that negligence against the railroad had to be proved. So he applied for compensation under New York’s workmen’s compensation law, which considered railroad work by definition to be hazardous and required employers in hazardous fields to recompense injured workers according to a statutorily defined schedule. To collect under New York law, Winfield did not have to show negligence. The Court had unanimously upheld the New York law against a due process challenge earlier in the term. In the Winfield case the Court looked at the question of whether the New York statute could be applied where a federal law also operated but afforded no relief in a particular case.
In a decision marked by near-total disregard for the factual context, Justice Van Devanter, speaking for a 7–2 majority, declared that it had long been settled policy that when Congress acts on any subject, “all state laws covering the same field are necessarily superseded by reason of the supremacy of the national authority.” As for Winfield’s argument that Congress had not acted in those areas in which no negligence had occurred, Van Devanter admitted that there were conflicting state decisions, but the Court believed that the right rule is that in areas of interstate commerce, only the federal government should determine policy. He then went on to build up a case for the primacy of federal authority, an issue that had never really been in doubt.
Brandeis entered a sixteen-page dissent, nearly three times as long as the majority statement. He carefully filled in the background of the state and federal laws, where they overlapped (in which case federal power would govern), and, more important, the gaps in federal coverage that states had attempted to fill. Conceding that if in fact the federal and state laws intersected, then federal law governed, he set out three rules that the Court had established to make just this determination and then proceeded to show how the majority opinion had either ignored these rules or misconstrued them, all his points undergirded by massive documentation of prior cases as well as the history and purpose of the federal law. He then detailed the evils that the state law had attempted to remedy, and this made clear, he believed, that Congress had not “intended to deny to the states the power to provide for compensation or relief for injuries not covered by it.” Rather than claiming the two laws were in conflict, a better argument would be that they stood in a complementary relationship to each other, each with well-defined and limited areas of responsibility.
Brandeis worked on the assumption that unless Congress specifically acted in a way to preclude state action, or indicated its policy to do so, the states should be free to act, and he provided a two-page list of cases in which the Court had adopted that position. Van Devanter’s majority view is not intellectually wrong, and is direct—albeit more simplistic—in its assumption that the exercise of federal powers automatically precludes the states from entering the field, even if the law does not apply to the entire field. Brandeis believed that the majority did not understand that in a federal system, the recognition that federal powers exist did not automatically mean the curtailment of state authority. The Winfield case, he told Frankfurter, “laid me low.” For Brandeis the majority’s hairsplitting seemed deliberately ignorant of the fact that Winfield’s type of injury had also not been covered.
Given the vagueness that often surrounds the so-called dormant Commerce Clause, and the ongoing debate over when and under what circumstances the exercise of federal power precludes state action, Brandeis’s position is logical but, much as he may have thought it self-evident, not necessarily correct. The majority believed that unless Congress specifically created areas of exemption, exercise of a commerce power automatically excluded state action. Brandeis took the other view, that an exemption existed unless Congress definitely stated that it did not. Over the years Congress has on many occasions held that the provisions of a statute did not close the field to the states, but often it has failed to do so, and in such cases the view of the Winfield majority has prevailed.
IN HIS OTHER DISSENT of that first term, Brandeis’s view would eventually triumph, but until the mid-1930s his remained the rather lonely minority position. Conservatives in the judiciary had, to some extent, accepted that legislatures could pass protective legislation, provided they could show a direct relation between the measure and the health, safety, or welfare of the worker. They had not, however, agreed to minimum-wage legislation, which, in their view, transgressed the limits of the police power and trenched upon the market in a way forbidden to the government. Moreover, maximum hours, abolition of child labor, and factory safety laws for many marked the limits that the government could go to in trying to regulate economic activities. Reformers, on the other hand, argued that in order to protect the citizenry, the state had the power to control any portion of the market that the legislature determined to be in the best interests of the people. Adams v. Tanner, announced on the last day of Brandeis’s first term, illustrated this divide.
A Washington State law forbade employment agencies from accepting fees from those seeking work. A fee, however, could still be charged to an employer. Joe Adams, the owner of an employment agency, charged that this in effect would put him and all other agencies out of business, since collecting fees from employers would not work. Although the Court had over the years approved a number of state measures regulating various businesses and professions, Justice McReynolds, speaking for a five-man majority, accepted Adams’s argument that the law did not regulate but prohibited employment agencies, and this deprived him of his property rights protected by the Fourteenth Amendment. “The statute is one of prohibition, not regulation,” McReynolds declared. “‘You take my home when you do take the prop that doth sustain my house; you take my life when you do take the means whereby I live.’” The Court, he noted, had in the previous term agreed that employment agencies could be regulated in order to prevent exploitation of those seeking jobs, but it had never approved an outright ban. “The Fourteenth Amendment protects the citizen in his right to engage in any lawful business,” and by denying Adams the right to engage in a calling that surely provided benefits to the community, Washington State had gone too far.
Brandeis, of course, had been defending this type of legislation for years, and he now submitted a Brandeis brief justifying the law and its relation to public welfare in the same way he had defended the Oregon hours law, and with the same purpose—to instruct the Court on the facts of industrial life. Working through draft after draft with Magruder, he amassed mountains of information on what other states had done, the abuses that poor workers suffered at the hands of the agencies, and why the remedy adopted by Washington State made perfectly good sense. Moreover, even if the majority correctly characterized the law as an abolition rather than as a regulation of agencies, the Court had not only in the past approved the prohibitory measures relating to alcohol but less than a year earlier sanctioned the banning of trading stamps. Clearly, the police power could prohibit as well as regulate. Constitutionally, the Court should be asking only whether the legislation could be characterized as arbitrary, unreasonable, or lacking any real and substantial relation to the objective.
To determine this, the Court should not rely on abstract logic, but “the judgment should be based upon a consideration of relevant facts, actual or possible—Ex facto jus oritur [Law must arise from facts]. That ancient rule must prevail in order that we may have a system of living law.” The Court, therefore, had to inquire into the evil that the state wanted to mitigate, why this particular remedy had been adopted, and whether the remedy directly affected the problem. What the Court should not do, he pointedly reminded his brethren, is assess the wisdom of the legislation. Courts, unless faced with a clear violation of a constitutional prohibition, should defer to the legislative choice of remedy. Therefore, was the Washington statute, in the light of the relevant facts, so clearly arbitrary or so unreasonable as to violate the Fourteenth Amendment?
One can find this construct in a number of Brandeis’s most important dissents over the next two decades. What are the facts the legislature took into account? Did the remedy address the evils? Could a reasonable person find the remedy arbitrary or unreasonable? If not, no matter what individual justices may have thought about the desirability of the legislation, they should defer to the legislative wisdom. Brandeis in his language and cadence thus “projected during this first year of his service the premise and the method of the generation of judges that would succeed him.”
Brandeis worked feverishly at the opinion, marshaling his arguments and supporting them in extensive documentation. He cataloged the evils, especially conditions in Washington, looked at the remedy that had been proposed and how it addressed the problem, and showed how courts, including the Supreme Court, had in the past approved similar legislation—and rested it all on massive documentation. He even circulated his “memorandum” before McReynolds had a chance to send his opinion around, in the hope that he might win away a vote or two. He failed in this ploy, but Holmes and Clarke agreed with him enthusiastically. Holmes wrote on the return “Note me as agreeing with you vehemently,” while Clarke assured him, “Only the Lord can so harden their heads as well as their hearts as to prevent their confessing their sin of ignorance.”
Aside from the cases for which he wrote an opinion, Brandeis participated in the more than 150 decisions handed down by the Court during the term. He provided the fifth vote to sustain the Adamson Act establishing an eight-hour day on the nation’s railroads. He joined the majority in upholding the Mann Act prohibiting the transportation of women across state lines for immoral purposes. Although he wrote only two dissents, he disagreed with the majority in a handful of other cases as well, but did not write. Unlike the modern Court, in which a dissent apparently requires an opinion, the Court Brandeis joined often had notations that one or more justices dissented but without an opinion. The justices recognized that at the time the Court’s jurisdiction brought it many cases of a nonconstitutional nature, and given the workload of the Court and the fact that no one had more than one clerk, they husbanded their resources. Moreover, Brandeis believed that the Court should decide cases on the narrowest grounds possible, and so if the majority opinion did this, he saw no reason to enter a formal dissent. (After 1925, when Chief Justice Taft secured the Judges’ Bill to give the Court greater control over its docket, the minor cases no longer had to be heard, and the Court became what it is today, a forum that hears cases involving the Constitution and questions of federal statutory interpretation.)
Toward the end of the term, the English political scientist Harold Laski, whom Frankfurter had introduced to Brandeis, wrote to congratulate him on his opinions. They seemed to breathe a “refreshing sense of newmindedness” into the Court, a “vivid feeling that it was alert to the readjustment which is characteristic of this age.” All told, not a bad note to sum up the first term.
IN HIS SECOND TERM the pattern of the first repeated, although Brandeis disagreed with the majority more. He wrote twenty-two opinions for the Court, concurred once, recused himself in two cases, and dissented eleven times. One case in which he disqualified himself involved a former client whom he had served as counsel in the lower court, and the other involved the United Shoe Machinery Company, which he had attacked prior to his going on the bench. In dissenting, he wrote three opinions, joined in the dissents of others (usually Holmes and Clarke) six times, and disagreed in two cases without opinion.
The cases in which he wrote for the majority covered a wide range of topics, many of them of little importance to anyone except the litigants. They varied from water rights to sheep grazing on federal land, to a contract dispute involving $1,000. Only one of his majority opinions is particularly noteworthy, and that involved a gloss he put on the so-called rule of reason in antitrust cases.
The Chicago Board of Trade, the world’s largest grain exchange, had established rules regarding when members could trade in grains already in transit to Chicago from elsewhere in the country. (Members could also deal in grains already in Chicago and in futures, grain still in the ground or to be planted.) The board allowed trading in the “to arrive” category both during the regular session, which ended at one o’clock, and during a special session, the Call, that ran afterward from 1:15 to 2:00. The government attacked the rules regulating the Call as an illegal price-fixing mechanism and won in the trial court, where the judge refused to accept evidence from the board that the rule served the convenience of the members, did not suppress competition, and had been aimed to break up the stranglehold that a handful of warehouses in Chicago had previously had on the “to arrive” grains.
Brandeis, speaking for a unanimous Court (McReynolds as former attorney general recused himself), reversed, and declared that the legality of a commercial agreement cannot be determined by so simple a test as whether or not it restrains competition. Every agreement in some form restrains, because it binds the parties and excludes others. What the courts have to examine is whether a regulation does in fact suppress legitimate competition, or whether, by establishing an orderly market, it actually promotes it. This determination cannot be made other than by looking at the facts specific to the case, including the conditions of the market before and after the imposition of the rule and the actual effects that it had. “The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be attained, are all relevant facts,” and therefore must be examined by the Court. Good intentions did not determine matters by themselves, but should be taken into account as part of the total set of facts.
After taking all of these considerations into account, Brandeis found the rule to be a reasonable regulation of trade and not a violation of the antitrust laws. “Yes—Simply, clearly and admirably well put,” Chief Justice White wrote on the return. But in fact the decision is not all that simple, and indicates that Brandeis’s views on competition were never as straightforward as some of his critics as well as supporters thought. When Brandeis called for a “regulation of competition” in 1912, he actually meant regulation, but he wanted it to be self-policing as much as possible. The Board of Trade rule certainly did limit competition in that it wanted to suppress the activities of the warehousemen, which the board (and Brandeis) considered illicit. The Call helped to rationalize the market and to allow a level field for grain traders. This opinion foreshadowed Brandeis’s attitude in later cases dealing with trade associations as well as the Court’s limited approval of price maintenance agreements, both of which he favored. It would be many years, however, before the Court finally gave its approval to manufacturer price maintenance agreements.
Brandeis’s dissents, and not the majority opinions, captured the interest of the legal academy and the reformers, because in the 1917 term the antireform conservatives had their way in three important cases. In the most famous of these, Hammer v. Dagenhart, a 5–4 majority struck down the Keating-Owen Child Labor Act of 1916. Solicitor General John W. Davis defended the law and filed a Brandeisian brief laden with references to nonlegal materials addressing the social, economic, and medical aspects of child labor in the country. The members of the Court considered Davis one of the best solicitor generals to practice before them, but he failed to sway a majority of the Court. Taking an extremely narrow view of interstate commerce, Justice Day held that child labor constituted part of the production of goods, separated from actual interstate commerce involving the movement of those goods between one state and another. Manufacturing could be regulated by the states, but not by the federal government. The distinction fully reflected the archaic theory of classical legal thought that Holmes and Brandeis had been attacking for years.
Holmes wrote the dissent in Dagenhart, joined by Brandeis, Clarke, and McKenna, and it completely dismembered Day’s artificial constructs. The Court had previously approved a variety of regulations, and it had no business voiding one that all sensible people believed necessary. In a powerful call for judicial restraint, Holmes declared that “it is not for this Court to pronounce when prohibition is necessary to regulation if it ever may be necessary—to say that it is permissible as against strong drink but not against the product of ruined lives.”
Earlier in the term the Court struck another blow against reformers in general, and labor unions in particular, when it again upheld the notorious yellow-dog contract by which employers made it a condition of employment that workers not join a union. In 1908 the Court had struck down a federal law prohibiting yellow-dog contracts and then in 1915 had told the states they could not proscribe them either. In his dissent in Hitchman, Brandeis, joined by Holmes and Clarke, meticulously exposed the anti-union bias of the majority opinion by taking every one of Mahlon Pitney’s assertions about the factual situation and showing how they had been distorted. The real case, Brandeis implied, had nothing to do with a yellow-dog contract and everything to do with the majority’s hostility toward unions.
Enmity toward unions also lay behind the majority decision in another case, where the Court upheld a sweeping injunction against workers who wanted to organize a glass factory in West Virginia. The federal district court prohibited any of the union officers from organizing, picketing, or in any way attempting to unionize the Eagle Glass Company. The Court, according to Brandeis, should have dismissed the appeal and vacated the injunction, because the record clearly showed that there was no diversity of jurisdiction—that is, all of the parties came from the same state—and the case should never have been entertained in federal court. He later complained that his colleagues did not pay enough attention to jurisdictional issues. Holmes would take any case that had an interesting question, while the conservatives would ignore jurisdictional matters where they did not like the rulings in the lower courts. “Van Devanter knows as much about jurisdiction as anyone—more than anyone,” Brandeis told Frankfurter. “But when he wants to decide all his jurisdictional scruples go.” For Brandeis jurisdiction constituted part of the checks and balances implicit in the Constitution, a real check against the Court’s overreaching its authority.
In both cases Brandeis’s style was very low-key, with none of the soaring rhetoric that marked Holmes’s opinions and made them so quotable. The Brandeis opinions were nonetheless powerful, primarily because of the force of their logic. His analysis of the facts, whether writing for the majority or in dissent, was clear and compelling. In the few instances when fellow justices dissented from his opinions for the Court, they did so because they disagreed with his law; in no instance did anyone ever dissect Brandeis’s statement of the facts and find it wanting or distorted. He liked to remind people that he had been a practicing lawyer for thirty-seven years before going on the Court, and he had learned that the accuracy of his facts could be a more powerful argument than the logic of his law. It is not that his colleagues on the bench did not know how to state the facts of a case, but few could match his ability to marshal the material.
Brandeis did care about style, and in some cases his writing rose to the level of elegance; there are few cases in American constitutional history that can match the powerful rhetoric of his opinion in the Whitney case (see chapter 25). One has only to look at how he revised his opinions, draft after draft after draft, to see how he wanted to get just the right word—not for the rhetoric but for the accuracy of his statement. He admired the beauty of Holmes’s writing, but also noted that while lawyers quoted Holmes more than anyone else, his flights of language left more loopholes for rehearing petitions than anyone else; Holmes had a tendency to disregard some little fact or fail to spell it out, and this caused problems. No one could accuse Brandeis of that shortcoming.
Brandeis understood the political value of not dissenting every time he disagreed or of filing an opinion when he did. Unless the merits of a case troubled him a great deal, he recognized the futility of writing when the vote would be 8–1. He knew it would be far better to write only when he had something he really wanted people to hear. A judge who files only a few well-reasoned and well-documented dissents will make a greater impact on bench and bar than someone who shoots off an opinion in every other case. Brandeis did not, however, agree with Chief Justice Taft’s view that dissents adversely affected the Court or that the Court should speak with one voice. Moreover, even when he decided to write, he would on occasion suppress his dissent. When he said that “the most important thing we do is not doing,” he meant it not just for the Court as a whole but for its individual members as well.
AFTER HIS FIRST THREE TERMS Brandeis had acclimated himself to the Court and its work. He set a pattern both for how he and his clerk did their work and for how he would draft his opinions. While his ideas about some matters would change over the next two decades, his methods remained the same. What is not apparent from looking at United States Reports and at Brandeis’s files is that in addition to doing his full share of the Court’s workload, Louis Brandeis carried on a remarkable amount of extrajudicial activity.
* Brandeis did, however, go out of his way to meet the Holmes clerks, also sent down from Harvard Law by Felix Frankfurter. In part this was a way that Brandeis looked after his friend as Holmes grew older. When Holmes retired from the Court, Brandeis told Frankfurter to keep sending a clerk; now that Fannie Holmes had died, Holmes needed companionship.