In the spring of 1925 a delighted Oliver Wendell Holmes wrote to Felix Frankfurter, asking him if he had seen the “report that I was to resign in the spring and that Brandeis had just returned from a sanitarium—one as true as the other.” The article in the Washington Post claimed that Brandeis had been a patient at the Hinsdale Sanitarium outside of Chicago for a week. Attendants at the institution said that Brandeis “displayed great recuperative power and in eight days built himself up to normal conditions from a state of exhaustion.” What do you think? Brandeis wrote to Holmes. “It looks as if the game of imagining the king’s death were in full play.”
As he entered his eighth decade, Louis Brandeis seemed indefatigable. Aside from his work at the Supreme Court, he kept up extrajudicial activities that one might easily have mistaken for full-time employment. At times Alice probably wondered why in 1916 she thought that her husband’s days of knight-errantry were over.
THROUGHOUT THE 1920S Brandeis stayed in touch with many of his former colleagues in the progressive movement, some directly and some through intermediaries such as Felix Frankfurter. The subsidy that the justice provided allowed the Harvard Law professor to use his considerable talents in support of a variety of reforms, just as Brandeis hoped he would. During these years Brandeis called Frankfurter “the most useful lawyer in the United States.” In Frankfurter he found the one person he could talk to about the law and the business of the Supreme Court, knowing that the Harvard professor would be discreet.
Brandeis watched over Frankfurter like a proud parent, and indeed once told him that he considered the younger man “half brother, half son.” After Frankfurter married Marion Denman in December 1919, an amused Brandeis wrote to Alice, “Felix is not at the Law School as much … and has not as much hold on the individual students as formerly. Thus does matrimony mar!!” When he thought that Frankfurter had taken on too many courses, he urged him to concentrate in areas such as state and federal jurisdictions where much work had to be done. In 1932, Governor Joseph Ely offered Frankfurter a seat on the Supreme Judicial Court of Massachusetts, but Brandeis counseled Frankfurter not to accept; he could do far more important work at the law school. “If ever the time comes when you should be asked to go on the Supreme Court,” Frankfurter recalled his saying, “talk to me about it, and if you’re then old enough, there might be some reason to leave the law school.” And, of course, when Marion Frankfurter began to suffer psychological problems in the mid-1920s, Brandeis not only understood his protágá’s suffering but also sent him money to help defray the medical expenses.
Frankfurter played a central role in one of the most notorious incidents of the 1920s, the effort to gain a new trial for Nicola Sacco and Bartolomeo Vanzetti, convicted of a payroll robbery and murder. Their 1920 trial had drawn little attention, but as information about the conduct of the proceedings, the apparent bigotry of the presiding judge, and allegations about the prosecution’s manipulation of evidence became known, a groundswell of liberal opinion coalesced into seven years of effort to have the verdict overturned and the men either tried again or pardoned. All efforts failed, and Massachusetts put the two to death shortly after midnight on 23 August 1927.
As a judge, and especially as a judge on a court that conceivably might hear an appeal, Brandeis could not make any public statements, but he clearly believed the two men had not had a fair trial. Frankfurter kept him apprised of his work, and Brandeis encouraged him in his efforts. In the summer of 1927, Brandeis offered to add more money to the special account to cover “heavy demands for incidental expenses” relating to the case. In addition, both Alice and Elizabeth had become involved in the defense effort at the behest of Auntie B., and Alice made financial contributions to the defense fund that her husband could not. Certainly Louis must have known—and approved—when Alice gave Mrs. Evans permission to save Rosina Sacco and her children from the press and hide them in a house Brandeis owned in Dedham.
As the execution date approached, desperate defense lawyers went to Holmes’s summer place in Beverly and appealed for a stay. He told them he sympathized, but he refused to act. The two men had been accused of committing a crime in Massachusetts; they had been tried and convicted in a state court; and the verdict had been reviewed by the state’s appellate courts. In the 1920s, before the incorporation of the Bill of Rights, the Supreme Court as a rule did not review state criminal decisions. While Holmes believed that if he stretched, he might find some grounds for issuing a stay, he did not believe that his brethren on the Court would accept the case and reverse the judgment. He told them to try Brandeis.
Professor Felix Frankfurter of the
Harvard Law School
Arthur Hill jumped into his car and drove out to Chatham, but Brandeis would not even let the lawyer into his house. Rosina Sacco had stayed at his house (a fact not generally known but one that could prove embarrassing should he grant a stay), two of his closest friends—Mrs. Evans and Frankfurter—had been leaders of the protest, and his wife and daughter had been supporters. As Hill later reported, Justice Brandeis “stated that because of his personal relations to some of the people who had been interested in the case he felt that he must decline to act on any matter connected with it.” The next evening the two men went to their deaths.
Frankfurter, grief stricken as he was, understood why both Holmes and Brandeis had declined to act. He had tried to explain the situation to his distraught wife, but to no avail, and when Gardner Jackson questioned Brandeis’s actions, Frankfurter exploded. “Don’t talk to me about that because I have had to listen to my wife all day. I can shut you up but not her. Gardner, it is terribly important not to have the fight go over into unclean hands.” Frankfurter may have understood, but others did not. Vanzetti, in one of his last letters, lamented that both Holmes and Brandeis, “the symbols of liberalism in the Federal Supreme Court turned us their shoulders.” The Worker, a leftist New York paper, put up a poster in its window titled “Brandeis, Pontius Pilate,” describing the justice as washing his hands of innocent blood. Later writers who know the law, as well as Brandeis’s concern for propriety and jurisdictional limits, have understood his actions. Others have chastised both him and Holmes for failing to act. Judicial proprieties are all well and good, but they cut too fine a line in a case involving life and death.
Shortly after the two men had died, Brandeis wrote to Frankfurter, “To the end, you have done all that was possible for you. And that all was more than would have [been] possible for any other person I know. But the end of S.V. is only the beginning.” No doubt Frankfurter took some balm from that letter, but the bitterness of the case and its aftermath stayed with him his whole career.
FRANKFURTER ALSO WAS Brandeis’s chief connection to Harvard Law School, to which he remained a devoted alumnus. During the Red Scare the justice wrote encouraging letters to faculty under attack, especially Zechariah Chafee. Aside from taking a graduate each year as his law clerk, Brandeis supported fellowships and new programs presented to him by Frankfurter and the school’s dean, Roscoe Pound. Frankfurter wanted to create a research fellowship, in part to get the assistance of a bright young man in his own work, and Brandeis willingly helped fund it. The first year’s incumbent, Thomas Corcoran, would later be a law clerk to Holmes and a major political influence during the New Deal. Brandeis occasionally put prospective donors in touch with the school, and when some of the justice’s friends wanted to honor him on his seventieth birthday, they raised money to endow a research fund for the law school.
Brandeis also kept up with law school affairs through the other faculty, since anyone coming down to Washington or going to Cape Cod had a standing invitation to stop in and visit with the justice. Charles Warren, Zechariah Chafee, Manley Hudson, Thomas Reed Powell, and Roscoe Pound were regular visitors, as well as those Brandeis clerks who returned to teach in Cambridge, such as James Landis. Brandeis expected—and received—copies of their books and articles, which he read closely, and he felt no hesitation in suggesting new lines of inquiry to them. After Charles Warren sent Brandeis a copy of his three-volume The Supreme Court in United States History (1922), Brandeis praised the book fulsomely, declaring, “Since I joined the Court no book has given me so much instruction or more pleasure.” But, “much having makes me hunger more,” and he advised Warren to now turn his sights to the lower federal courts, although the work need not be as large.
Not everything about the law school in the 1920s pleased him, and he and Frankfurter broke with Roscoe Pound over the future direction of the school. Brandeis and Frankfurter essentially wanted to keep Harvard as it had been, a small school with extensive contacts between students and faculty with high standards for both. Ideally, professors would teach a small number of very bright students, and if the regular faculty could not teach every course, then visiting scholars would fill in, both enriching their own experience and providing new ideas.
Pound did not oppose the elitism, but considered Harvard designed for an early-nineteenth-century agrarian society and ill suited to provide the type of legal education needed in twentieth-century America. The school now had to teach more aspects of the law and bring in economics, sociology, and philosophy to inform the curriculum. The separation of law from other social sciences had created “a gulf between legal thought and popular thought on matters of social reform,” resulting in a bench and bar out of touch with the real world. Brandeis agreed completely with these ideas. He had argued for a sociological jurisprudence for years, and he greatly admired Pound’s writings on the law. He and Frankfurter, however, objected to Pound’s plan to enlarge the law school—the physical facilities, the faculty, and the student body. Above all, they feared that once expansion began, it would be impossible to stop and would go on “forever like an industrial plant.”
Pound wrote to Brandeis in early October 1924 about his plans and received a curt and rather negative reply: “Thank you for letting me know about the plans under consideration. Do let me talk with you when you are next here. I have grave apprehensions and want to suggest an alternative.” The alternative proposal damned the whole idea of having a student body larger than a thousand and 350-seat lecture halls as “irreconcilable with H.L.S. traditions and aims.” The next suggestion certainly reflected Brandeis’s fear of bigness and his growing belief that real progress would come not from the large cities like New York, Chicago, and Boston but from the heartland and smaller places like Madison and Louisville. While perhaps idealistic, it lacked that attribute which had made Brandeis so effective a lawyer and reformer—pragmatism. He wanted Harvard to limit its own growth and place its resources at the disposal of smaller schools in the form of exchange professorships. Both the Harvard faculty and those brought in for a year would benefit from the experience, especially the latter, who would have a year in which to learn. The result, instead of a big Harvard Law School, would be twenty properly sized Harvard clones around the country. He admitted that there would be difficulties in this scheme, but it would, he declared, be “constructive—not destructive.” He also went and spoke to the other Harvard graduates on the bench, Holmes and Edward Sanford, as well as to Stone, who had been dean at Columbia, and reported to Frankfurter that they all opposed Pound’s plans. The dean, with the blessing of the overseers and President Abbott Lawrence Lowell, determined to expand the law school. Brandeis could, of course, do nothing about it; he continued to give money, not to Pound’s drive, but to finance Frankfurter’s smaller and more discrete projects. Whether the expansion had anything to do with his decision is impossible to say, but he refused to sit for a portrait to be hung in the law school. No doubt disgust with Pound’s plan led him to turn his attention toward Louisville and its fledgling university.
IN THE 1920S, Brandeis began to expound the theme that the future progress of the country and a concomitant development of high ideals would occur not in the large cities but in smaller urban areas. “I think the advice to be given serious-minded public-spirited men for the immediate future is to devote themselves to State, City, municipal and non-political affairs. If we are to attain our national ideals, it must be via the states.” Always delighted when his clerks chose to enter teaching, he was even happier when they went to smaller law schools like those at Buffalo and the University of Wisconsin in Madison. When President James B. Conant offered the deanship of Harvard Law School to the thirty-seven-year-old James Landis in the mid-1930s, Landis immediately went to see the man he had clerked for a decade earlier. Landis told him about the offer.
“You mean the Harvard Law School?” Brandeis asked.
“Yes,” Landis replied.
“Why do you want to take that?”
“Well,” Landis stumbled, “it’s a great position.”
“Anybody can be a good Dean of the Harvard Law School,” Brandeis told him. “Why not take some smaller school and do something with it?”
By then Brandeis no doubt was thinking of his own efforts to build up a smaller school, efforts that began in the fall of 1924. He entered this project with the same energy and enthusiasm he had earlier brought to reforms, and the same attention to detail. But because of his judicial duties and his distance from the scene, he had to work through surrogates—members of Alfred’s family and especially Alfred’s daughter Fannie.
Brandeis began by donating portions of his sizable personal library to the University of Louisville, along with sufficient funds to hire a librarian to catalog these and other materials to come and to shelve them in a proper manner. As he made additional donations of books and documents, he began to earmark some of them as “for the Economics library” or “for the History library.” He also secured a copy of the university catalog, and as he told his niece Maidie, while it would take a long time to build up all of the programs, it was not too early to start planning what would be needed and then to secure people to help make it happen. One piece fell into place almost immediately when his old friend from elementary school Hattie Bishop Speed donated her art collection to the university and a building to house it in memory of her late husband, James Speed. Louis and Alice, upon learning of this, sent a piece of old Japanese lacquer that had been given to them early in their marriage, as well as other artworks, to add to the collection, but warned Fannie not to let the Brandeis name creep in—even though Aunt Hattie, as Alfred’s children called her, wanted to give Louis credit. His name, Brandeis warned, could be used for publicity and as a lever to move other donors, but neither he nor Alice wanted to be seen as the prime movers.
As he told his nephew Frederick Wehle, “I assumed that the University is poor in possessions—including the instructors. What I aim to do is to make them rich in ideals and eager in the desire to attain them. I want the authorities to dream of the University as it should be; and I hope to encourage this dreaming by making possible the first steps toward realization.” Brandeis did not plan to give a huge gift to the university, although over the years the value of his contributions of books, documents, artwork, and the moneys to process them added up to many thousands of dollars. He did not urge the university to start a large endowment campaign. He wanted the people of Louisville to support the school, and small gifts should be welcomed because they would indicate community support. If an occasional wealthy donor stepped up, such as Aunt Hattie, and contributed a building or endowed a professorship, all to the good. But Louisville was a small university in a small city, and Brandeis hoped to make it a model of the type of practical idealism and accomplishment he believed could take place outside the big metropolitan areas.
On 18 February 1925, Louis wrote to his brother that the development of the university
is a task befitting the Adolph Brandeis family, which for nearly three-quarters of a century has stood in Louisville for culture and, at least in Uncle Lewis [Dembitz], for learning. For the undertaking conditions seem favorable now. It would be fine if all the grandchildren could take an active part. But six of them are disqualified, for the present, by non-residence…. So the task devolves upon your family—yourself, Jennie, the girls and the sons-in-law—and upon Alice and me. If we elders have ten years to work in, the preliminary work will have been done. The rest can be left wholly to your descendants and the Centuries.
Money alone cannot build a worthy university. Too much money, or too quick money, may mar one; particularly if it is foreign money. To become great, a university must express the people whom it serves, and must express the people and the community at their best. The aim must be high and the vision broad; the goal seemingly attainable but beyond the immediate reach…. History teaches, I believe, that the present tendency toward centralization must be arrested, if we are to attain the American ideals, and that for it must be substituted intense development of life through activities in the several states and localities. The problem is a very difficult one; but the local university is the most hopeful instrument for any attempt at solution.
Brandeis asked family members to assume particular responsibilities. Alfred took on Kentuckiana; his daughter Adele had the Department of Economics and Sociology, and her sister Fannie bore the responsibility for archaeology, art, and music. Using his own holdings, as well as Zionist and government offices, Brandeis helped to establish a number of departmental libraries and arranged to name them in memory of prominent Kentuckians. Bookplates in the Palestine-Judaica Library bore the name of Lewis Dembitz, and those in music of Brandeis’s own music teacher from many years before, Louis H. Hast. After Alfred died, the economics and sociology, war library and government publications, and the classical literature and history collections bore his name. Brandeis used his own contacts in government and elsewhere to secure ongoing publications of groups like the Carnegie Endowment for International Peace and the League of Nations.
When the university president, Arthur Y. Ford, began talking about an endowment drive, Brandeis immediately protested. “I am particularly desirous of preventing Louisville from taking foreign money, notably not from ‘foundations.’ If we are to have a worthy Kentucky institution, it should be through Kentucky support. The other is the ’easier way’—but like most ‘easier ways’—apt to defeat the best development.” The university would become great only if “it is essentially Kentuckian, an institution for Kentuckians developed by Kentuckians.”
When Alfred expressed discouragement at the slow pace of their work, and the seeming inability of university officials to understand, the justice urged him to have faith. “The future has many good things in store for those who can wait, have patience, and exercise good judgment.” Some things would work well and others would not, and the only thing they could count on was that there would be surprises both in progress and in setbacks. “My faith is great in time,” he told his brother, “and that which shapes it to its perfect end.”
It took several years before the board of trustees began to appreciate the Brandeis plan of slow and steady growth. In the heyday of the 1920s, many thought a drive to corral large sums of money would be the way to put up new buildings and expand the faculty—the same mind-set the justice had opposed at Harvard. Eventually, Ford left, to be replaced by Raymond A. Kent, who understood and backed the Brandeis family in its work.
Given his concern over the direction taken by Harvard Law, Brandeis paid special attention to the University of Louisville Law School. He wanted the students to be primarily local, from Louisville and Kentucky, since he believed most of them would return there to practice. The school could develop only if the quality of education impressed those at the head of the local bench and bar—lawyers, judges, and public officials. Aside from occasional monetary gifts, Brandeis arranged for the law library to receive a complete set of Supreme Court case briefs and records starting in 1924, a practice that has continued to this day. To honor those Kentuckians who had previously served on the Court, he gave funds so the library could obtain a complete set of United States Reports. Similarly, he arranged to secure a complete set of Federal Reports in memory of those from the state who had rendered distinguished service as federal judges, and a complete set of Attorney General Opinions to mark Kentuckians who had served in that office.
Brandeis personally intervened to bring in the distinguished local lawyer Robert Neville Miller as dean in 1930, and that same year the American Bar Association put Louisville on its approved list of law schools. Miller raised money, primarily from local donors, to erect a new building, and the cornerstone was laid on 6 June 1938, with Justice Stanley Reed, another Kentuckian, as the main speaker. Miller said that he could not imagine the development of the law school without Brandeis’s aid. “He always kept in the background, seeking no word of appreciation for himself or for what he had done. It was his vision of the Law School as an active force in the community, rather than just another school turning out lawyers, which really decided me to give up the practice of law and become Dean. He always anticipated our wishes.”
Brandeis’s dreams for the law school came to fruition, although it took many years, a fact that would not have bothered him. The school is still small by the standards of Harvard or Michigan, and it is ranked as a second-tier school. Renamed the Louis D. Brandeis School of Law in 1998, it remains regional, with two-thirds of the students coming from Louisville and Kentucky, and most of these stay to practice in the state. The faculty is heavily engaged in policy research, and each year distinguished visiting professors come in to work on issues relating to the economic and social conditions of the region. The school was one of the first five in the country to incorporate a mandatory public service requirement, and currently each student must do thirty hours of public service, generally by representing poor clients. Rather than a deterrent, the public service aspect has become a major reason students choose the school, and alumni report that they have continued pro bono work once in practice.
Here in many ways is the quintessential Brandeis—opponent of bigness, champion of the small institution, be it a business or a university, idealism tempered by pragmatism, a belief that only if the people “owned” the solution would they throw themselves into making the experiment succeed, realism about the difficulties involved, attention to details, extraordinary patience, and a commitment to the education necessary for success. All the elements that made Brandeis a successful lawyer and reformer can be seen here, as well as a mature philosophy regarding bigness. It may have been too late to save Washington and the big cities, but hope existed in small-city and small-state America.
LIVING IN WASHINGTON for much of the year permitted Brandeis to watch closely the political doings in the 1920s, although he found little to cheer him. The two decades of progressivism had led to the enactment of numerous laws, but in that period of time, he asked, had the country “gained or lost ground—in civilization—[and] in that which America is supposed to stand for—in liberty and tolerance; in security to life and property; in morality; in culture”? His tone indicated that he doubted much improvement had been made.
The nomination of Warren Harding as the Republican standard-bearer in 1920 instead of Herbert Hoover constituted a “sad story of American political responsibility.” Hoover had impressed Brandeis during the war, and had he announced as a Democrat could have had that party’s nomination. Hoover’s declaration as a Republican struck the justice as “a terrible blunder.” After Hoover landed in the cabinet, Brandeis’s opinion of him went down, and within a few months he wrote to his brother, “I am sorry to say, your impression as to Hoover is shared by many here who have been watching affairs this summer. They speak of his ‘insatiable and absurd graspingness’ and ‘insane longing for publicity’; and it is said that this is common talk among newspapermen.”
He had little use for Harding or his successor. At a dinner party, he, in Dean Acheson’s words, “assumed a prophetic role and denounced our rulers for promising the people what they knew they could not fulfill.” After attending Calvin Coolidge’s Washington birthday speech in 1927, he told Frankfurter, “You cannot conceive how painful, distressful & depressing it was…. When I tried to recall the next most depressing & distressful experience of a lifetime, I had to go back to 1894, when in preparing for the Public Institutions Hearings, I went to Long Island (Boston Harbor) Poor-House hospital & passed through the syphilitic ward. I had a like sense of uncleanness.”
During these years a handful of the old progressives tended the flame. In 1924, Robert La Follette decided to run for president as a third-party candidate, and rumors abounded that the senator would choose Louis Brandeis as his running mate. When Chief Justice Taft heard of this, he accurately predicted, “I know enough about Brandeis to know that [the vice presidency] is the last position which he would accept, but his sympathies may be with La Follette.” Actually, by the time Taft wrote this, Brandeis had already declined the offer.
La Follette from the beginning realized that Brandeis would not leave the Court, but he had such a high regard for his friend that he wanted to offer him the opportunity. In late July he dispatched the journalist Gilson Gardner, an old friend of the justice’s, to see him on Cape Cod. As Alice told her daughter, “You will understand the situation—politics in the air—it seemed quite like old times.” Gardner made a strong plea, but Brandeis refused and said he thought he could do more for the public good on the Court than anywhere else. The next day Alice wrote to Belle, “My great—indeed only regret is that Louis should not be standing shoulder to shoulder with Bob in the fight. But he will help, I feel sure in his own way when the opportunity offers.” Belle in turn wrote to Bess Evans, “The optimism and the widespread appeal to have Louis’ name on the ballot seemed to justify at least putting the matter before him. It would have been a great adventure but it could hardly be expected that Louis would make it. With Bob it is the logic of his life. With Louis it would be stepping into a new field.” Later in the campaign Alice Brandeis came out and worked for La Follette, even writing an article supporting his record.
The campaign proved to be La Follette’s last hurrah. He did not do badly for a third-party candidate, winning one out of every six votes, but in the all-important Electoral College he carried only the thirteen votes of his home state of Wisconsin. The La Follettes came to dine at the Brandeis apartment in March 1925, and the justice told his brother that the senator “is in good form, but does not bear his years as well as you do.” Ten weeks later, on 18 June, La Follette died, worn out by his three decades of battling for reform. “He had put all there was in him into the great fight,” Brandeis said, “never sparing himself. And he knew not fear.”
There were few other moments of hope for progressives in the 1920s. Brandeis took heart when his old friend the Massachusetts senator David Walsh easily won reelection in 1926 over Republican William Morgan Butler, a close friend of Calvin Coolidge’s. The GOP had poured both men and money into the campaign, sending in heavyweights such as Hoover and Charles Evans Hughes to campaign for Butler. And, surprisingly, Brandeis enthusiastically favored the candidacy of Alfred E. Smith in 1928 and thought he would win.
In 1927, Brandeis had ventured the idea that “after timid, safe and sane Cal” the country might fly to a courageous man. Reports from Susan about the four-time governor of New York and his support among the people led Brandeis to take a closer look. After Smith won the Democratic nomination, Brandeis excitedly wrote to his brother, who also favored Smith, that all of the “family and friends” had better get on the bandwagon soon, before there would be no room to stand. When Smith asked Susan about meeting with her father, Brandeis said it would be “inadvisable for me to see him during the campaign except under conditions which would preclude publicity.” But he hoped to see much of him in Washington after his inauguration. A week before the election he told his daughter that “political news is certainly exciting now.” All the people he knew in Boston told him that they had never seen such an outpouring as the popular sentiment for Smith.
On 6 November, Smith suffered a smashing defeat at the hands of Herbert Hoover. The Democrat received only 40 percent of the vote and carried eight states—six in the old South, Massachusetts, and Connecticut. Brandeis had completely underestimated the factors that doomed Smith’s candidacy—his religion, his opposition to prohibition, his identification with the new urban America, and the prosperity of the 1920s, for which the Republicans claimed full credit. “I feel almost as if an ‘Earth Shaker’ had been at work on us Smithites during the past week,” he told Elizabeth, but “the experience adds to my militancy. There is an opportunity ahead for great fighting.” He wrote a bit more forlornly to the Kansas editor William Allen White: “Shall we have soon another ‘Great Rebellion’?” White feared not, for one thing the election showed was that the “old order holds fast.”
La Follette for president, 1924
There was one bright spot in the election returns. Even though Smith had lost his home state of New York, the Democratic gubernatorial candidate had won. Brandeis sent word through Felix Frankfurter that if Franklin Roosevelt would care to stop by the next time he was in Washington, the justice had a few ideas he wanted to discuss with him.
TWO OTHER EFFORTS occupied Brandeis’s extrajudicial time in the 1920s: savings bank life insurance and Zionism.
Of all his reform efforts, savings bank insurance remained to him the most important and the most satisfactory. From the time he went on the Court until his death a quarter century later, he followed the program’s progress, read its annual reports carefully, sent a stream of letters offering advice and encouragement to its officials, and took near-parental pride every time another bank joined the network or the system achieved another milestone in coverage. He also had an able lieutenant on the spot who kept him informed of both the trials and the triumphs of the system.
Brandeis’s secretary at the law firm, Alice Harriet Grady, had been interested in savings bank insurance from the time that her boss had started work on the project. In 1920 she left the firm and became deputy director of the state agency that administered and oversaw the plan. From that time until her death in 1934, she and Brandeis corresponded frequently, at least weekly and sometimes more often when a problem arose.
The chief danger came from the private insurance companies that never reconciled themselves to savings bank insurance. Each year they would offer one or more proposals aimed at limiting the amount of insurance that could be written or changing the conditions that made savings bank insurance attractive as well as affordable to working people. Miss Grady, however, had learned from the master, and during her tenure put into practice those lessons. She maintained close touch with legislators, especially those friendly to savings bank insurance, who would alert her at the first sign of another attack. She also cultivated relations with important local businessmen and professionals who sat on the boards of the savings banks and had influence with the legislators from their districts. When an occasional attack threatened to become dangerous, Judd Dewey, Miss Grady’s boss, might arrange for Brandeis to talk to the governor.
Brandeis never doubted Miss Grady’s ability, but understood that she needed constant encouragement, which he provided in abundance. “You remind of Antaeus,” he wrote in 1923, “only they never throw you to the ground; & Hercules would have had a hard time throttling you on high.” “I know you are a ‘bonnie fighter,’” he told her on another occasion, “and with the right, for which you always battle, on your side.” After one victory he told his son-in-law, “I have just had word from Boston that Miss Grady has won a very nobly contested legislative fight on Savings Bank Insurance. I am a strong believer in Amazons.” Whenever he came through Boston on his way to or from the Cape, he would stay overnight, and Miss Grady would arrange appointments for him with people he wanted to see or with some whom she wanted him to meet regarding insurance.
Clyde Casady, later to be the executive vice president of the Savings Bank Life Insurance Council, recalled how he had met the justice in September 1932. He had just joined the agency, and Miss Grady invited him to go to the train station and see Brandeis off. “I expected merely to sit in a corner of the stateroom,” he said, “and listen to conversation between the Justice and his intimate friends. You can imagine my surprise when he met me at the door, excused himself and took me into the next compartment, and spent practically the entire twenty minutes talking about the need and means of promoting savings-bank insurance.”
IMMEDIATELY AFTER the members of the Brandeis group resigned from leadership of American Zionism at the 1921 Cleveland convention, they met in New York and heard from their leader. They had not resigned from Zionism, Brandeis reminded them, and they still believed in the goal of a Jewish homeland in Palestine. “We are from now on to free ourselves from all entanglements in order that we may the sooner accomplish that end with the least possible embarrassment.” They would, of course, remain members of the Zionist Organization of America, but so long as the new administration led by Louis Lipsky pursued policies they deemed wrong, they could not share in the work. They would for the moment go their separate ways.
So they watched as membership in the ZOA eroded during the 1920s and as the World Zionist Organization was forced to adopt, one after another, many of the steps that Brandeis had proposed. The Brandeis group set up several funds to support economic development in the Holy Land. The Palestine Endowment Funds (PEF), organized under Julian Mack’s direction in 1922, utilized charitable contributions for a variety of purposes. One of its first—and largest—donations went to support the new Hebrew University in Jerusalem. In 1935, at David Ben-Gurion’s request, the PEF helped purchase land near Aqaba on the Red Sea, now the site of the important Israeli port and resort city of Eilat. During these years Brandeis personally donated more than $750,000 to the funds.
A more ambitious scheme led to the establishment of the Palestine Development Council (PDC), the investment counterpart to the donation-fed PEF (and an illustration of Brandeis’s demand that investment and charitable funds be kept separate). In creating the PDC, the Brandeis group tried to blend social idealism with economic realism, reflecting the progressive view of enlightened business. The PDC never really got off the ground, not because it could not find businesses with a social orientation, but rather because, when it did, the Brandeis group lacked the resources to fund it. Pinhas Rutenberg came up with a practical plan to generate hydroelectric power, but it required far more investment money than the PDC could command.
Throughout the 1920s, Brandeis met constantly with individual Zionists from both the American and the world organizations and with Palestinians who came to the United States, whom he grilled on the yield of their crops or the size of their orchards. To say that he led a government in exile might be too strong, but his extensive correspondence with Julian Mack, Stephen Wise, Felix Frankfurter, and others on Zionist matters shows that they followed ZOA developments closely and believed that at some time they would regain power. When a group within the ZOA disillusioned with Lipsky plotted to overthrow him, Brandeis met with the leaders, but refused to be drawn into the scheming. When the Lipsky administration collapsed early in the Depression and the Brandeis group returned to power, its members stepped into positions of authority and responsibility with little need for acclimation.
Brandeis, however, played a personal role in two major developments in American Zionism during the decade. First, he kept Hadassah strong and focused. The women’s group nearly split apart in 1921, because its leaders had husbands on both sides of the controversy. Henrietta Szold, the founder of Hadassah, had moved to Palestine to supervise its work there (supported by a fund that Brandeis, Julian Mack, and others had anonymously established). She worried how to keep Hadassah alive after the Cleveland debacle and thought she would need to return to America. Brandeis, when he learned of this, immediately declared that Miss Szold had to remain in Palestine, which desperately needed her leadership. He called in Rose Jacobs and told her that she would have to assume part of the burden, and by this step guaranteed the future of Hadassah. By insisting that new women come forward and new talent be developed, he prevented Hadassah from becoming the lengthened shadow of one person. Henrietta Szold would be given another quarter century to serve the cause, but in those years she could rely on a strong organization that admired her and supported her work but that no longer needed her daily presence.
Brandeis also encouraged Hadassah to remain independent of the Zionist Organization of America, and alone in the 1920s it did not suffer the reversals in fortune that plagued the ZOA. Hadassah had a mission—health care in Palestine—and so long as it focused on that mission, it remained strong. After the World Zionist Organization refused to fund his plan for eradication of malaria in the Huleh valley, Brandeis arranged for gifts to Hadassah, which successfully did the work. When the women’s organization needed funds to expand its medical work and its children’s services and keep them available to Jew and Arab alike, Brandeis talked to Nathan Straus, one of the early supporters of Miss Szold, and he provided funds. He funneled some donations to Hadassah through Susan and let the Hadassah leaders know they could also turn to Alice for help.
The other major Zionist development in the 1920s involved the so-called pact of glory creating the Jewish Agency for Palestine. The League of Nations mandate to Britain required that a governing body be established with representatives not only from the Jewish settlements in Palestine and from the World Zionist Organization but from non-Zionist groups as well. Chaim Weizmann realized that if he wanted to raise large sums of money for Palestine, it would have to come from non-Zionist groups such as the American Jewish Committee and from wealthy Jews who did not subscribe to Zionism. He began a long courtship of Louis Marshall, the head of the committee, who had already been quietly talking with Brandeis and Julian Mack. Marshall never subscribed to Jewish nationalism, but he accepted Brandeis’s argument that all Jews had to play a role in developing Palestine, whether they chose to live there or not. By the time Weizmann came to America in early 1924, the groundwork had been laid, but everyone recognized that if the Brandeis group refused to cooperate, there would be little chance of success.
Although invited to the conference in New York on 17 February, neither Brandeis nor Mack attended, but they both sent letters of support and promised to work for Palestine. The justice reiterated his belief that the Jews of America had a special role to play, but he also pointed out that no progress could be made without careful study of the facts, efficient use of available funds, and above all effective leadership. Given all this, “we may hope for great advance in the economic, social and cultural development of the country.” Beyond offering encouragement, however, Brandeis would wait and see. He still did not trust Chaim Weizmann.
HIS ONLY JOY in an otherwise depressing political and economic era came from his family. With the exception of a few setbacks, Alice seemed to have outgrown the problems that had plagued her in Boston. Whenever weather permitted, she and Louis went for a stroll along the C & O canal towpath or for an occasional paddle. She kept in touch with old friends such as Bess Evans, who came often to visit, and made new friends, with whom she would go to concerts, museums, or even luncheons of the Democratic Women’s Club. The explosion of automobile traffic made continued use of the horse and buggy not only impractical but also dangerous, so the Brandeises made an arrangement with a chauffeur to have him and his black Pierce-Arrow available when they needed it, and by the end of the decade the car would pick him up in the morning to take him to the Court and then bring him home in the afternoon.
Alice and Louis entertained more than they had in Boston, since without his need to travel for reform and Zionist work, he would be home every evening. When they first arrived in Washington, they went often to dinner parties but eventually stopped. Apparently, Louis made this decision, since he felt more comfortable in his own place, with a guest list that he and Alice had chosen. The Brandeises continued to like small gatherings where conversation would flow. In addition to a maid and cook named Susan, Alice pressed into service the justice’s messenger, Edward Poindexter, and the various Harvard men her husband employed as clerks to help her either at the dinners or at the weekly teas where the justice met—and questioned—not only old friends but also newcomers to Washington. The clerks apparently enjoyed these responsibilities because of the interesting and occasionally famous people they met. At dinner they had the chore of making sure that all of the guests had left by ten o’clock so that the justice could go to bed. At the Monday afternoon gatherings, aside from helping Alice serve, they were to make sure that no one monopolized the justice’s time and would bring over a new person for him to talk to, a sign that time had expired for his current guest. The courtly Brandeis would not sit if a woman was standing, and Thomas Austern recalled running around the apartment making sure there were enough chairs and having the female guests seated.
With the exception of the war years, when he stayed in Washington over the summer, the Brandeises left the capital almost as soon as the Court term ended and headed for Cape Cod, with a stop of a day or two in Boston to take care of business and see friends. In late September they would reverse the trek, arriving in time to get ready for the Court’s convening on the first Monday in October. For years the Brandeises rented houses on Cape Cod, eventually coming to prefer a place in Chatham. Then, in 1924, their landlord announced that he wanted to get rid of the property, and Louis and Alice decided to buy. The location suited them well, a plain, even austere house on a bluff a mile and a half outside of Chatham overlooking Stage Harbor with a few nearby buildings that could be rented by family and friends. There in the summers Louis and Alice would canoe, walk, pick wild blueberries, and entertain friends, albeit without the help of either Poindexter or the clerks.
Alice, ca.1930
And he would catch up on his reading, including Zionist literature and the state and federal government reports that he alone of all the members of the Court so enjoyed. He does not seem to have read any modern fiction; there is no reference to Hemingway, Fitzgerald, or any contemporary European authors. He continued to study ancient Greece and Rome, revisited some of the classics that he had read as a young man, and looked forward to new books by Walter Lippmann and Harold Laski, as well as works on the law by Roscoe Pound and others.
The one major change in their routine came in the fall of 1926. The Stoneleigh on Connecticut Avenue, where they had lived since his appointment to the Court, had decided to “modernize” by converting ground-floor space into shops for the “convenience” of its residents. The Brandeises found a similar and quieter residence hotel at Florence Court at 2205 California Street, where they again rented two apartments, No. 503 for their living quarters and No. 601 for his study. Sadie Nicholson, who had worked for them in Boston and occasionally on the Cape, came down to Washington in August to oversee the transfer of furniture from the Stoneleigh, while Louis’s messenger, Edward Poindexter, supervised moving the justice’s office. (A Miss Turner rented but did not live in a small furnished apartment in the building that she often sublet to a Brandeis clerk.)
Aside from an occasional trip to New York, where Alice still had family, the Brandeises rarely varied their routine. Susan and Elizabeth would occasionally go camping with Louis, but those trips ended after the girls married. So the justice was somewhat surprised when, in September 1927, Alice arranged for them to spend a weekend in Charlottesville to visit Monticello, the home of the Founding Father Louis most admired, Thomas Jefferson. “I have just been rambling about the town,” he wrote to Alfred, “with its old houses like, or a little better than Louisville’s near-best of a half-century ago.” They stayed in a hotel near the court buildings, and “it is good to see the old time law offices from which even the omnipresent typewriter cannot remove the inherent calm.” The next day he walked around Charlottesville some more, basking in how much it reminded him of Louisville. After visiting Monticello and the University of Virginia (which Jefferson founded), he returned home, he said, with the “deepest conviction of [Jefferson’s] greatness. He was a civilized man.” In a note to Alice Grady, Brandeis told her he thought Jefferson “would have no difficulty in appreciating S.B.I.”
NOTHING GAVE BRANDEIS more joy, however, than his daughters, Susan and Elizabeth, whose personal development and professional experience more than lived up to his expectations. All the tensions that had existed between Susan and her parents seem to have disappeared after she finished law school and entered practice. On a two-week camping trip the two took in Canada in July and August 1921, Brandeis wrote in an almost blissful tone about how he had enjoyed Susan’s company. Susan “has been quite charming & interesting—eager to see & most reasonable.” She has “exhibited capacity for silence as well as speech” and is “always good company.” “She has passed far beyond the period of grievances for treatment of the family,” he told Alice, “and is rather inclined to overestimate what she has gained from us or has been permitted to enjoy.”
Susan began her practice renting some space in the office of Louis Posner, a New York attorney, and almost immediately began securing business. Posner recommended her to David L. Podell, a well-respected New York trial lawyer who had just become assistant U.S. attorney for the Southern District of New York in charge of antitrust, and he hired Susan to work on cases involving the building trades. Although Susan never asked her father for help in getting clients, some of Brandeis’s friends decided to lend a hand. Julian Mack and Learned Hand heard a number of bankruptcy cases in their courts and began assigning receivership work to Susan. After she had proved her ability in this area, it became a reliable source of income as she built up her practice and reputation. Above all, her father delighted that she loved the practice of law as much as he had. Susan “is having a joyous time with an endless succession of professional thrills.” After receiving a bubbling letter from her that reported getting new clients, he responded, “I always found so much of romance and adventure in securing a new client and in their confidence that the ordinary essays of the imagination presented by all but the best novels or stories seemed pretty poor by comparison.”
As a practicing attorney, Susan also began appreciating some of the advice her father gave her, advice that had not made a great impression on her in law school. He suggested that she learn more about the law of evidence, “a branch which one must have at the fingertips.” She decided to take an accounting course, and he approved, since “accounting is the language of business.” She also had a greater sensitivity to her father’s position, and on a number of occasions wrote to ask him whether if she took a particular case or client it would embarrass him. In nearly every instance he told her she could go ahead, and said that if a conflict should arise—such as a case coming to his court—he would recuse. He also arranged to be transferred from oversight of the Second Circuit (which included New York and New Jersey, where Susan practiced) so that neither would be embarrassed if a case needed to be appealed.
He made little effort to hide his pride. When Susan received a sizable fee from one of her cases, she sent it to her father and asked him how to invest it. He sent it to Miss Malloch at his old law firm for deposit in his account, “so they may see my lawyer daughter’s check.” At a dinner for the circuit court judges in the fall of 1924, several members came up to the justice to tell him how well Susan was doing, a fact that he promptly shared with her. After Susan appeared before the high court, with her father of course absent, some of his colleagues came over to tell him that she had done well in presenting her case.
Susan, of course, was not the first woman to argue before the Supreme Court, and by the 1920s the presence of a female attorney no longer seemed such an oddity. But while Brandeis had no problems with women lawyers—unlike Justice McReynolds, who thought they should not be admitted in the court room—he did insist on standards, and he wrote to his daughter that a Rose Rothenberg, whom Susan knew, had been admitted to practice before the Supreme Court and had shown up quite inappropriately dressed. “Her next friend ought to have supplied her own lack of the sense of propriety in coming into Court, with 2/3 short sleeves, & dácolletá and a long necklace!!” Brandeis never reconciled himself to the new fashions.
In February 1925, Susan informed her parents of a tentative engagement to Jacob “Jack” Gilbert, a lawyer she had met when they had been on opposite sides of a minor litigation. This time her parents did not question her judgment. “There is nothing which we could wish more for you than a husband worthy of you whom you deeply love,” her father wrote. “And we have confidence in your mature judgment.” Susan took her time, and not until October did she tell her parents that she and Jack had definitely decided to marry. Brandeis told her that a wise man had said to him many years ago: “Take all the time necessary for deliberation; but when you have decided, act thereon for life without doubting.” On 29 December, Felix Adler, the bride’s uncle and the same person who had presided over her parents’ wedding, performed the ceremony in New York.
AFTER GRADUATING FROM RADCLIFFE, Elizabeth Brandeis worked for a few years as secretary of the District of Columbia Minimum Wage Board until the Court declared the law creating the board unconstitutional. She decided to go to law school and also to study economics, a plan of which her father strongly approved, especially after she chose to go to the University of Wisconsin. “It will be particularly satisfying to live in an atmosphere which breathes La Follette’s air.” She moved to Madison in the late summer of 1923 and before long had abandoned law to study under the great labor economist John R. Commons. After she completed her dissertation in 1927, Commons invited her to contribute the section on labor legislation to the monumental four-volume history of labor in the United States that he edited.
EB, as she was called throughout her adult life, finished her course work in 1924 and began looking for a job, but not one in a big city. She had an offer to teach part-time at Smith College, an offer her father recommended she take. John Commons, however, wanted her to stay at Wisconsin and arranged for her to teach there while she completed her dissertation. One of the attractions in Madison was Paul Raushenbush, a fellow student in the Economics Department and the son of the noted Social Gospel minister Walter Rauschenbusch. They married at the end of June 1925 at a small ceremony in Chicago, with none of her family present. This seems to have been a preference of both hers and Paul’s, and not a sign of estrangement; the Brandeises liked Paul a great deal, and soon after the ceremony the newlyweds came to Chatham before spending time in the Canadian woods.
The Raushenbushes faced a problem common to many couples in academia: how to get jobs at the same colleges or at ones in the same city. Swarthmore offered Paul a full-time position to start in the fall of 1927 and agreed to hire EB at the same rate of pay per course, but only on a part-time basis. The two did not know what to do, and so returned to Madison to seek the advice of Commons and their other professors. This time the faculty insisted that they both stay, and Paul and EB taught at Wisconsin until their retirement.
Paul, Walter, and Elizabeth
Raushenbush, at Chatham
in the 1930s
ON 4 NOVEMBER 1926, Susan gave birth to the Brandeises’ first grandchild, Louis Brandeis Gilbert. The justice wrote to Felix Frankfurter, “I suppose you and Marion have heard from Auntie B. that Susan’s son is a strapping fellow & that all goes well with them.” The austere justice became a doting grandfather, referring to his namesake as “the Crown Prince,” or “C.P.,” and was always eager to hear news about his latest exploits. In December 1926, when he had to make a trip to New York on Zionist business, he told Susan that the “rest of time is to be devoted to the contemplation of C.P.—and of the Eternal Verities.” Louis and Alice liked to have the boy around in the summer at Chatham. The Gilberts at first took a small house down the hill and later built a summer home on an adjacent parcel they purchased. Over the next few years Louis had a sister, Alice (born 14 May 1928 and called Adee), and a brother, Frank (3 December 1930). Elizabeth and Paul also had a child, Walter, born on 13 June 1928. At the house in Chatham, Brandeis would measure the children every summer when they arrived, and make a mark on the kitchen wall with the name and date showing their growth.
The success and maturity of their daughters, as well as their growing families, led Louis and Alice to begin giving them large sums of money later in the decade, which served several purposes. Louis and Alice had far more money than they used, and even with his significant gifts to Zionist enterprises his fortune kept growing. He understood that neither Jack nor Susan would ever have the type of practice that he had enjoyed, or the income that came with it. Elizabeth and Paul would be academics all of their lives, and professorships would not make them rich. Both the daughters and their husbands had interests in public service, and Brandeis wanted them to have some of the freedom that he so prized. Elizabeth and Paul had serious qualms about accepting these gifts, but her father insisted. “Our purpose,” he told her, “was to impose upon you responsibility for the care of property, which would, in any event, naturally go to you someday.”
Brandeis in a canoe at Chatham
He also understood that growing families entailed costs, and in 1928 learned that Susan and Jack had gone into debt because their expenses outran their income. He immediately arranged to cover their outstanding obligations, but did not want them to have to come to him whenever they were short; it would be better to give them money and to let them do with it as they wanted. He put no strings on his gifts and left “wholly to you two the disposition to be made of the income.”
BRANDEIS SUFFERED a grievous personal loss when his best friend and brother, Alfred, died on 8 August 1928. The two had corresponded almost daily their entire adult lives, and whenever business brought Louis to the Midwest, he would somehow find a way to detour to Louisville. Later, their families had vacationed together, and Susan and Elizabeth spent a great deal of time with their Louisville cousins. When Alfred came to Washington for a visit in the spring of 1925, Louis remarked that “he seemed finer than ever. A man who has developed steadily throughout his life.”
Alfred and his family in Louisville had enthusiastically joined Louis’s project to build up the University of Louisville, but in May 1927 Louis heard that Al had been having health problems. He tried to get his brother to take it easy, since he and Alice did not want to lose their managing partner. “It’s just 50 years since my eyes gave out,” he told Alfred. “Since then, there has never been a time that I haven’t had to bear in mind physical limitations of some sort. The walls curbing activity were always in sight; and I had to adjust my efforts. Your superb constitution relieved you from that necessity. But age is a fact that may not be ignored … and there is not a day when I am not reminded of it. Your constitution has been better than mine. But you are nearly three years older. Remember that—and Act Accordingly.”
Susan, Elizabeth, and their children, Chatham in the 1930s
News of Alfred’s death came to Louis and Alice in Chatham, and they spent a long time remembering him and all he had meant in their lives. He had, Louis wrote to Alfred’s widow, Jennie, a “beautiful, gladsome life.” He brought happiness to his family and help to individuals in need and had been a good citizen of his community and country; in return he had received love, friendship, and appreciation. Louis dug out old files with Alfred’s letters and read again about their boyhood adventures, the great family trip to Europe, and the problems Alfred overcame to rebuild A. Brandeis & Son. Alfred had a “radiant, generous nature,” and Louis would miss him for the rest of his life.
IN NOVEMBER 1926, Louis Brandeis celebrated his seventieth birthday, and he spent several days responding to greetings from well-wishers all over the country. Julian Mack wrote to tell him that his friends had raised the money to endow a research fellowship in his name at Harvard Law School. From Holmes came a note full of appreciation for his friend. “You turn the third corner tomorrow,” Holmes wrote. “You have done big things with high motives—have swept over great hedges and across wide ditches, always with the same courage, the same keen eye, the same steady hand. As you take the home stretch the onlookers begin to realize how you have ridden and what you have achieved. I am glad that I am still here to say: Nobly done.”
Louis and Alfred at Chatham, ca.1926
To honor Brandeis, the faculty at Yale Law School proposed giving him an honorary degree. According to Thurman Arnold, President James Rowland Angell turned down the recommendation. The following year the faculty again nominated the justice, Angell agreed, but the trustees said no. The third year the faculty sent in Brandeis’s name, Angell approved, the trustees agreed, but the Yale Corporation turned it down. Finally, in the fourth year the faculty said yes, Angell said yes, the trustees said yes, and the corporation also approved. Justice Brandeis, however, said no, having imposed upon himself a rule against such honors, and on that decision there could be no appeal.
One birthday letter in particular must have given Brandeis satisfaction in knowing that lessons he had taught years earlier had taken hold. His old friend Edward Filene wrote to explain to the justice an incident that had taken place at the management committee meeting of Filene’s department store. Lincoln Filene had read a letter from Judge Mack soliciting money for the gift to Harvard, and everyone on the committee had been enthusiastic about Filene’s making a donation of $10,000—everyone except Edward. He wanted Brandeis to understand that he did not object to the fund, but did not think that the store ought to be using corporate money, since this would raise the price of goods to its customers. He would make a private gift, but did not want store moneys involved. “I have a very strong feeling,” he told Brandeis, “that judging by what you have said to me about the inexcusable high cost of doing business, you would like me to take the stand which I adopted.” Brandeis told him not to worry. “I understand fully.”