On 27 October 1929, Louis Brandeis wrote to his son-in-law Jack Gilbert, “There has been a very severe engagement on Wall St. It will be months before the direct casualties are ascertained or disclosed, and … its effect upon general business becomes apparent.” There had indeed been a “severe engagement” four days earlier, when the New York Stock Exchange saw six million shares change hands, erasing more than $4 billion in paper value, but this paled when the following day nearly thirteen million shares traded and losses exceeded $9 billion. Then, on Tuesday, 29 October, the bottom fell out of the great bull market of the 1920s, with stock prices in free fall and no buyers to be found. By mid-November, American stocks had depreciated by $26 billion, nearly a third of their value just a few months earlier, and Brandeis wrote to his daughter Elizabeth that he thought a general depression had begun.
The stock market crash did not cause the Great Depression that followed, but it did serve as a vivid opening act. It took some time before Americans realized that the most severe economic downturn in the nation’s history had been under way since earlier that summer. President Herbert Hoover, trying to reassure worried investors, announced on 25 October that “the fundamental business of the country, that is, production and distribution of commodities, is on a sound and prosperous basis,” and most businessmen and economic analysts agreed with him. By the time Franklin D. Roosevelt took the oath of office on 4 March 1933, however, four in ten Americans had lost their jobs, factories worked at minimal production or had closed, the nation’s banking system had failed, and farmers could not sell their crops.
The Great Depression affected Louis Brandeis in many ways, but not in terms of his personal finances. He had invested in safe bonds, and his income suffered only a minor diminution; his gross income in 1929 had been $137,372, and never dropped below $134,000 over the next decade. He increased his gifts to relatives and friends and also maintained his level of giving to Zionism, savings bank insurance, and the Harvard and Louisville law schools.
The Depression bore out Brandeis’s prophecies that Republican prosperity rested on a foundation of sand and that gambling—which is how he saw the stock market—would eventually lead to great losses. But even though he did not anticipate how great those losses would be or how severe the economic disaster, he saw hope in having the bubble burst. Perhaps saner heads would now prevail and put in place the remedies that would allow the country to flourish without the distortions and the bigness that had marked the prior decade.
The Depression also challenged the Court, as first states and then the federal government enacted measures to ameliorate the hardships. William Howard Taft left the Court in 1930, but his replacement, Charles Evans Hughes, presided over a bench in which four hard-line conservatives still opposed every effort by government to interfere with the market, and the Four Horsemen could usually pick up a fifth vote. Brandeis’s pleas for judicial restraint fell on deaf ears.
WHATEVER ONE THINKS of Brandeis and his views on bigness, even a cursory reading of his letters in the 1920s shows his economic sophistication. He recognized and called attention to nearly every problem of production and finance later identified as causes of the Depression. “I wish to record my utter inability to understand why a lot of folks don’t go broke,” he declared in 1926. He knew there would be a reckoning, but did not foresee when that would come, how severe it would be, or how long it would last. But he was certain that “the blood-letting will doubtless be as good for the body politic as cupping and leeching was supposed to be for humans half a century ago.”
As early as 1922, Brandeis recognized that the so-called boom had very weak underpinnings. In the nineteenth century, innovations in production and transportation had led to cost reductions that had been passed on in the form of lower prices to the consumer. Since 1900, quite the opposite development had taken place, with production costs and consumer prices rising, not for lack of invention, but because large companies increased their profit margins. Distribution had become the job of middlemen, whose costs added to the final price of every product. Consumers paid more, but workers did not see an equivalent rise in their wages. As a result, a small percentage of the population realized great wealth, while the majority of Americans paid more for their costs of living on wages that failed to increase. As the decade wore on, the discrepancy in income distribution grew worse.
The following year Brandeis complained about the tax policies of the Harding administration and Secretary of the Treasury Andrew W. Mellon, which benefited large corporations and railroads at the expense of the middle class. If bigger companies were as efficient as they claimed to be, they could easily afford to pay higher taxes and should consider it a sort of excess profits tax.
Analysts and economic historians have seen agriculture as the weakest part of the 1920s economy, and the depression in agricultural prices began well before the 1920 stock crash. Brandeis, aside from his passion for government reports, had direct links to the farm sector through his brother, Alfred, and visitors from the Midwest. He understood that farmers faced a terrible squeeze between costs related to the overpriced value of their land and the prices they received for their goods.
The Federal Reserve System had been intended to free smaller banks from the tyranny of the large Wall Street firms, by allowing them to discount their loans directly to the Fed without having to go through Wall Street. This, however, had the unintended consequence of freeing up billions of dollars in credit, which banks lent for all sorts of speculative purposes, including buying stocks on margin and investing in European ventures. Instead of putting money into productive uses, Americans now had more funds with which to gamble. Brandeis also thought the new mode of consumers buying on credit contributed to this problem, and considered it a form of speculation.
Brandeis understood that despite the promises of Republican politicians, the country had not reached a “permanent plateau of prosperity.” In February 1933, Bruce Barton, one of the most influential advertising men of the twentieth century, said that the only person who had foreseen events clearly had been Louis Brandeis. In a 1922 rate case, a Texas electric company had complained of the rate set by the city’s utility commission, claiming that a plateau of prices at least 70 percent above the 1914 level should be accepted as the proper basis for rate setting. Brandeis spoke for a unanimous Court in upholding a special master’s finding that such a level did not exist. The following year he pointed to the history of the past century and noted that the one thing anyone could say with certainty about prices is that they went up and they also came down; there was no permanent plateau. “Who else in 1923,” asked Barton, “would have had the temerity to believe that prices could again drop below the 1914 lows?”
Brandeis read government reports and in March 1928 declared that the Labor Department numbers grossly misled the public regarding unemployment. The actual jobless rates far surpassed those announced by the secretary of labor, and he began to drum up support for his old battle against irregularity in employment. He told Paul Kellogg that the Survey should “take up vigorously and persistently the musts of Regularity in Employment.” The recent rise in unemployment should be the occasion to assert a worker’s right to regularity in his or her job—”a moral right, in a civilized community, superior to the right to dividends and equal, at least, to the right to regularity in the receipt of income from rents and interest.”
When Kellogg and Robert Bruère asked the justice to define what he meant, he wrote out a paragraph that they could use. According to his daughter, while Brandeis had certainly argued for employment regularity, he had never before defined it that cogently, and when the two editors wanted to identify Brandeis as the author, he agreed on the condition that they attribute it to his earlier writings. It appeared on the front page of the April 1929 issue of Survey Graphic:
For the Commonwealther who is “steady in his work,” there shall be steady work. The right to regularity in employment is co-equal with the right to regularity in the payment of rent, in the payment of interest on bonds, in the delivery to customers of the high quality of product contracted for. No business is conducted successfully which does not perform fully the obligations incident to each of these rights. Each of these obligations is equally a fixed charge. No dividend should be paid unless each of these fixed charges has been met. The reserve to ensure regularity of employment is as imperative as the reserve for depreciation; and it is equally a part of the fixed charges to make the annual contribution to that reserve. No business is socially solvent which cannot do so.
Although the statement did not receive much attention in 1928, by the early 1930s reformers seeking to change the labor market referred to it constantly.
In February 1932, Brandeis declared that “the widespread suffering, the economic helplessness and the general dejection are appalling; and most painful the absence of any sense of shame on the part of those primarily responsible for existing conditions. But the process of debunking continues; and if the depression is long continued—which seems likely—America will gain much from her sad experience.” He did not believe there would be a violent revolution, but he did not know how or when the country would recover. The hardships would contribute to a revival of liberalism after too many years of Harding-Coolidge-Hoover cynicism and materialism.
The justice himself played a critical role at one point in preventing violence. In the spring and summer of 1932 thousands of war veterans converged on Washington. Calling themselves the Bonus Expeditionary Force, they lobbied for the early payment of the war service “bonus” passed by Congress in 1920 and payable in 1945. When the Senate refused to pass the bill, a majority of the bonus marchers returned home. But several thousand of them—many of them homeless and with their families in tow—stayed in the buildings they had occupied on Pennsylvania Avenue and on Anacostia Flats. At Hoover’s urging, the District of Columbia police tried to evict them on 28 July 1932, and an ugly riot ensued in which two of the veterans were shot.
Bonus marchers’ camp on Anacostia Flats, Washington, D.C., 1932
The police chief, Pelham D. Glassford, known to everyone as Happy Glassford, had tried to avoid this violence as much as possible; a former officer in the army, Glassford had no desire to fight the veterans. The newspaperman Gardner Jackson took him to see Brandeis several times while the bonus marchers were in town, and the justice counseled the chief that he should do everything possible to avoid violence. For Brandeis, whatever other issues might be involved, the veterans had done no more than to invoke a basic constitutional right—the right of the people to petition their government. After the 28 July debacle, Glassford refused to use his police force to evict the marchers, and President Hoover, fearful of revolution, sent in the army under General Douglas MacArthur. The ultraconservative MacArthur used bayonets and tear gas to disperse the veterans, and the “Battle of Anacostia Flats” marked the low point of the Hoover administration.
INITIALLY, NEITHER THE FEDERAL nor the state governments reacted to the Depression. It had never been assumed by most Americans that government had any obligation to act in such circumstances. While reformers wanted to level the playing field between labor and management and to impose fair working conditions, neither Democrats nor Republicans believed that government should go any further. When the Great Depression proved to be more than a “minor correction,” government slowly began to respond with a variety of relief measures. These measures would be challenged in the courts, and given the judiciary’s previously hostile attitude to any effort of the state to interfere with business, they faced an uncertain future. Moreover, the Court that would hear these cases had changed.
In the fall of 1929, with his health failing, Taft began to worry about the future of the Court. He did not trust Herbert Hoover to make the right kinds of appointments, suspecting the president of being “a Progressive just as Stone is, and just as Brandeis is and just as Holmes is.” To Pierce Butler he wrote that his most fervent hope was for “continued life of enough of our present membership … to prevent disastrous reversals of our present attitudes. With Van [Devanter] and McReynolds and Sutherland and you and Sanford, there will be five to steady the boat.” In December Taft fell fatally ill and did not sit with the Court after 6 January 1930; he retired on 3 February and died a little over a month later.
When Taft stepped down, Hoover sent in the name of Charles Evans Hughes to take his place. Taft must have been pleased. He had, after all, named Hughes to the bench as an associate justice in 1910 and had considered Hughes to have the stature to head the Court. As far as Taft could tell, Hughes shared his basic judicial philosophy and would keep the Court on its proper course. Although progressives attacked Hughes as a tool of big business, the former secretary of state and Wall Street lawyer was no Taft clone. Far more than Taft, he understood the dangers of a judiciary blindly defending property and ignoring the general welfare.
When Brandeis heard of Hughes’s nomination, he declared that “confirmation ought to be made at once and ought to be unanimous.” Brandeis had first met Hughes when the latter had just started out in practice, and had thought well of him during the insurance investigations and as a progressive governor of New York. Above all, Hughes had a passion for data almost as great as that of Brandeis. The new chief trusted facts, looked to them to guide his thinking, and once said that he “believed in God but believed equally that God was on the side of the facts.” When Brandeis had joined the bench in 1916, Hughes had welcomed him warmly.
Brandeis valued how well Hughes managed the conference, which in Taft’s later years had often run on for hours and hours. Hughes had a simple, direct manner. He would summarize the facts of the case, and while the justices had time to discuss the merits, the chief moved things along briskly, so that Brandeis and others could now plan on the Saturday conference ending at 4:30. When on a few occasions the meeting ran later, Brandeis picked up the old-fashioned green bag he used to carry his papers (perhaps even the same one he had used at Harvard) and announced to Hughes: “Your jurisdiction has expired and that of Mrs. Brandeis has begun. I am leaving my vote.” Although some of the justices growled at the chief’s hyper-efficiency, Brandeis welcomed it. He told a friend that Hughes was the greatest executive genius he had ever encountered in law, in business, or in government.
On the very same day that Taft died, so, too, did Edward Terry San-ford, one of the men he had counted on to keep the conservative boat stable. To replace him, Hoover nominated Owen Josephus Roberts, a Philadelphia lawyer who had won renown as one of the two special U.S. attorneys assigned to investigate the Teapot Dome scandals. Roberts had then returned to private practice, and had not sought a judicial appointment; in fact, he had no clear judicial philosophy and lacked the temperament to be a member of the high court. He tended to side with liberals in civil liberties cases but wavered on economic questions. Roberts ignored the dynamic aspects of law and assumed that both law and society remained static.
The greatest change, and the one that affected Brandeis most, involved Holmes. Throughout the 1920s, Brandeis had kept a careful watch over his friend. Holmes had been ill several times and hospitalized for surgery once, and each time had recovered, much to Brandeis’s joy. In 1925, Brandeis reported how finely Holmes had “borne himself in the struggle against Father Time. There is no impairment of his working powers; and he retains equally his keen senses for the enjoyment of things worthwhile.” During the interregnum following Taft’s last illness, Holmes as senior justice presided over the Court. “He is indeed ‘to the manner born,’” Brandeis told Frankfurter. “He is presiding with great firmness, alertness and joy. A marked rejuvenescence has been effected.” Following one meeting, Brandeis reported that Harlan Stone had said it was the best conference he had attended since coming on the Court.
By the start of the October 1931 term, however, age and illness had sapped Holmes’s ability to work. In his autobiography, Hughes wrote that “it appeared that [Holmes] was slipping. While he was still able to write clearly, it became evident in the conferences of the Justices that he could no longer do his full share.” Three months passed before his colleagues decided that something had to be done. Hughes then consulted privately with Brandeis, and on a Sunday morning, 10 January 1932, went to see Holmes. The old soldier understood what had to be done, asked his clerk to get the proper volume of statutes, and wrote out his resignation. As soon as Hughes left, Brandeis arrived, clearly by a prior arrangement with Hughes, and spent an hour with his old friend. Later that day, Brandeis dropped him a note: “O.W.H. Dec. 8, 1902–Jan. 12, 1932. ‘Ich habe gelebt und geliebt.’ [I have lived and loved].” For the next three years Brandeis went to see Holmes two or three times a week until his death in March 1935.
Hoover faced a great deal of pressure in choosing Holmes’s successor; no ordinary appointee would do to replace the Magnificent Yankee. Many people wanted the president to name the chief judge of the New York State Court of Appeals, Benjamin Nathan Cardozo, but Hoover hesitated. Cardozo was a Democrat, a Jew, and a New Yorker, and there was already one Jew (Brandeis) and two New Yorkers (Stone and Hughes) on the high court. In the end he gave in to the pressure and named Cardozo, which may have been the most popular act of his beleaguered presidency.
Cardozo had a reputation as a judge’s judge, and next to Holmes was perhaps the greatest common-law jurist of the century. Scholars credit him with transforming major sections of the law, and his 1921 Storrs Lectures at Yale, published as The Nature of the Judicial Process, constituted a key building block of Legal Realism. Cardozo believed that legal rules had to be measured by their social utility and their contributions to the overall good of society. Brandeis had enormous respect for Cardozo, and once wrote in amazement to Frankfurter after the Supreme Court reversed a Cardozo opinion per curiam. A judge of Cardozo’s stature deserved better than Brandeis’s brethren had given him.
Cardozo never became a great Supreme Court justice, although he wrote several important opinions. A shy, retiring man, he was used to the civility of the New York courts, and he did not like Washington or the nastiness of McReynolds’s behavior toward him. He had a frail constitution, and Brandeis tried to look after him. Louis and Alice regularly asked the bachelor to dinner on Thanksgiving and before Christmas and also to the Monday afternoon teas. Cardozo did not like to go too often, because he found the Brandeis apartment overheated. He and Brandeis also disagreed on just how certain a judge must be before deciding a case. Cardozo liked to be completely sure of his decision, and Brandeis once commented to one of Cardozo’s law clerks, “The trouble with your Judge is that he thinks he has to be one hundred percent right. He doesn’t realize that it is enough to be fifty-one percent right.” Cardozo had the intellectual ability to become a great justice, but in 1938 he fell ill and died after only five terms on the bench.
What would these changes mean as the Depression deepened? No one had any idea what sort of judge Roberts would be. Cardozo in Holmes’s seat would make little difference, and while Hughes appeared to be more liberal in some areas than Taft, in economic matters he probably stood fairly close to the old chief. Hughes and Roberts defied simple characterization, but in general they eschewed ideological absolutes, believed in fidelity to precedent, and tried to decide each case on its own facts. When a high-school student asked Hughes to categorize himself as a liberal or a conservative, he replied that he had no use for either label. “Such characterizations,” he explained to a meeting of Fourth Circuit judges, “serve as a very poor substitute for intelligent criticism. A judge who does his work in an objective spirit, as a judge should, will address himself conscientiously to each case, and will not trouble himself about labels.” The first signs, however, gave liberals hope.
In a free-speech case, Hughes spoke for a 7–2 majority in striking down a California law prohibiting the flying of a red flag in a public place. In an opinion happily joined by Brandeis, Hughes made clear that he considered free speech and expression so important that they should not be cramped within narrow brackets. The following week Hughes dissented, joined by Holmes, Brandeis, and Stone, in United States v. Macintosh. The United States had denied American citizenship to the Canadian-born chaplain at the Yale Graduate School solely on the grounds that, as a pacifist, he could not swear to take up arms in defense of the United States. Hughes wrote a moving dissent that echoed much of what Holmes had written two years earlier in the Schwimmer case, that the government ought not to punish people for holding unpopular ideas.
The most important case grew out of a Minnesota law authorizing the suppression of any “malicious, scandalous and defamatory newspaper or other periodical” as a public nuisance. The statute had been enacted specifically to silence the Saturday Press, a tabloid that had the annoying habit of exposing corruption in Minneapolis. The case had been argued after Taft had fallen ill, but not decided until Hughes came onto the bench. Given the speech decisions of the prior decade, it is likely that had Taft voted, he would have joined the Four Horsemen to uphold the law, and there is evidence that if that occurred, Brandeis stood ready to prepare a dissent. But a five-man majority, consisting of the chief justice, Holmes, Brandeis, Stone, and Roberts struck the law down as a violation of the First Amendment protection of the press, and in doing so extended the Press Clause to the states.
But would this majority hold together when it came to economic regulations?
ONE OF THE EARLIEST Depression cases to come before the Court involved an Oklahoma statute that treated the manufacture of ice as a public utility and required a certificate of convenience for entering the business. The legislature had reasoned that during the Depression stabilizing the market mattered more than promoting an unfettered competition that could deprive some parts of the state of ice. In practical terms, however, it shut out new enterprises and gave existing companies a monopoly. When Ernest Liebmann opened an ice business without a state certificate, New State Ice, which had a license, sued to stop him. The previous term Brandeis had written a 5–4 opinion sustaining a New Jersey law regulating insurance companies, and both Hughes and Roberts had been with him. Now the two joined the conservative bloc to strike down the Oklahoma statute. Speaking through Justice Sutherland, the majority denied that ice could be considered affected with a public interest and concluded that it could not be legitimately regulated by the state. In addition, the law fostered monopoly. Perhaps most galling to reformers, Sutherland dismissed the idea that economic difficulties confronting the states allowed them to ignore the Due Process Clause. New conditions did not justify experimentation with eternal verities.
One might have expected Brandeis, with his well-known antipathy to monopoly, to have voted against the regulation; instead, he entered a powerful dissent (joined by Stone) that would be a rallying point for judicial liberals in the next five years. His opinion encapsulated all the arguments that opponents of substantive due process had been making ever since Holmes’s dissent in Lochner. “Whether the local conditions are such as to justify converting a private business into a public one is a matter primarily for the determination of the state legislature,” he declared. “Whether the grievances are real or fancied, whether the remedies are wise or foolish, are not matters about which the Court may concern itself.” Brandeis anticipated the stance that the Court would adopt within a few years, namely, that no arbitrary distinction existed between private property and that affected with a public interest, because all depended upon the facts of the situation. This determination, he insisted, had to be left to the legislature, and the “action of the State must be held valid unless clearly arbitrary, capricious or unreasonable.”
To determine that, the Court had to understand the facts behind the legislative decision, and with characteristic thoroughness he lectured the Court on the complexities of the ice business and the conditions in Oklahoma that led the legislature to make its decision. Ice had “come to be regarded as a household necessity, indispensable to the preservation of food and so to economical household management and the maintenance of health,” especially in a state like Oklahoma, where the warm climate made it impossible to rely on natural ice and where mechanical household refrigerators were still a rarity. Examining the highly competitive character of the industry, he concluded that the legislature could reasonably have determined that the ice industry lent itself to monopoly, and thus could be regulated as a public utility. The legislature had studied the problem of ice making and its regulation for seventeen years; the courts had no business second-guessing its conclusion. While conceding that courts had the power to strike down legislation, he warned that “in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles. If we would guide by the light of reason, we must let our minds be bold.”
Finally, Brandeis called upon a principle that most constitutional conservatives held dear—federalism. Although “man is weak and his judgment is at best fallible,” the conditions of the Depression cried out for experimentation. “I cannot believe that the framers of the Fourteenth Amendment, or the States which ratified it, intended to deprive us of the power to correct the evils of technological unemployment and excess productive capacity.” But although the Depression affected the entire nation, the country as a whole did not have to undertake untried programs. “It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”
Although reformers saw the majority decision as a setback, many predicted—or at least hoped—that Brandeis’s dissent would exert a powerful influence on legislators and courts to become more flexible, and that in time it would be accepted as the majority view in the high court. This, of course, did happen, and the distinction between public and private, as a constitutional matter in economic policy, all but disappeared. But Brandeis’s opinion had an even greater influence on modern notions of federalism. Instead of looking at the states and the federal government as antagonists, each fighting to protect its powers, Brandeis suggested a new paradigm in which the states and the national government held sovereignty over clearly defined areas, a notion he had earlier advanced regarding prohibition enforcement. The Court has recognized that the federal power not only is supreme in many instances but in modern times must be. The economy of the late twentieth and early twenty-first century not only is national in scope but is rapidly becoming global. One cannot have Massachusetts or New Jersey negotiating commercial treaties (a fact recognized by the Framers), and one cannot have states establishing regulations that impact far outside their borders.
What Brandeis suggested has been called “experimental federalism,” and looks to the states as laboratories of democracy. Throughout his life Brandeis believed that the greatest opportunities for establishing good government responsive to popular needs existed at the state level, and not in Washington (which would be the reason he distrusted much of the New Deal). Adaptation to changing times required knowledge of local conditions, which varied enormously across the country. A one-size-fits-all solution, the only kind that Congress could enact, did not take into account local differences. This the states could do, and if a solution to a novel problem worked in Oklahoma or California, then other states—without risk to themselves—could discuss whether the plan might succeed for them. Brandeis may or may not have supported the notion of physician-assisted suicide, but it is likely that he would have backed the right of Oregon to enact such a plan. In the Supreme Court case challenging laws against assisted suicide, the justices cited Brandeis’s New State Ice dissent as the proper way to go forward with such a radical idea.
Two years after New State Ice, the conservatives voided another law, one that struck a responsive chord with Brandeis. A 1931 Florida law imposed a 25–50 percent higher tax per store on owners who had outlets in different counties, a measure clearly aimed at chain stores. The conservative majority, utilizing the Equal Protection Clause, declared that the state could not discriminate solely on the basis that an owner had several stores in different counties. Roberts distinguished the case from an earlier decision in which the Court had upheld an Indiana tax on chain stores. That tax had been justified because chain stores did business in a substantially different manner from individual enterprises; Florida’s discriminatory tax, based on nothing more than location, could not be deemed reasonable.
Brandeis, who personally opposed chain stores, entered a long dissent, and here there is no question that he strongly supported the legislation under attack. The distinction that Roberts drew between a valid Indiana chain store tax and the Florida statute made no sense, since the Florida legislature had clearly intended the tax to apply to chain stores. Each of the twelve petitioners in the suit was a corporation—not an individual—and each operated a series of chain stores of varying sizes. Then, in the typical Brandeis manner, he went into the facts that the Florida legislature had taken into account, the problem it tried to solve, and the reasonableness of its solution, about which the courts had no business second-guessing.
Many people believed, he claimed, that part of the current unemployment problem resulted in the “gross inequality in the distribution of wealth and income which giant corporations have fostered.” The Florida legislature could reasonably have concluded that encouraging individual initiative would help restore prosperity and protect liberty. If a state believed that adequate protection against the abuse of corporate privilege can be secured through discriminatory taxes rather than revoking the corporate charters, “I know nothing in the Fourteenth Amendment to prevent it from making the experiment.” He then reviewed the history of the different ways in which various states had attempted to manage corporations and prevent them from abusing their powers. The Florida tax, therefore, was not a simple revenue measure, but had social and economic goals, namely, to rein in the menace of chain stores and to foster competition by individual stores. To Brandeis this seemed a very reasonable thing to do, and he marshaled his facts to back his assertion.
Even though he called for judicial restraint, in this case Brandeis the jurist strongly approved of what Florida had tried to do, and Brandeis the reformer explained why. In doing so, he went so far that Stone could not join him. “I think you are too much an advocate of this particular legislation,” Stone told him, “I have little enthusiasm for it, although I think it constitutional. In any case I think our dissents are more effective if we take the attitude that we are concerned with power and not with the merits of its exercise.” Paul Freund, Brandeis’s clerk that term, agreed that Brandeis really cared about this case; he may have had some reservation about the Oklahoma ice law, but not about the Florida tax. Brandeis adapted the long written opinion to a shorter version for oral delivery, something he rarely did in dissent. He spoke with great feeling, leaning forward on the bench and saying almost colloquially, “You know, we all know, why states pass these laws,” and the judgment of Florida ought to be confirmed.
THE COURT SEEMED TO RESPOND to Brandeis’s plea for judicial restraint and allowing the states greater leeway in meeting the challenge of the Depression when it reviewed the Minnesota Mortgage Moratorium Act in 1933. Farmers, because of collapsed markets, had no money to pay their mortgages and were losing their homesteads. The statute, clearly an emergency measure, permitted local courts to extend the period of redemption between foreclosure and sale to give farmers additional time to raise money. The statute did not permit an indefinite extension, nor did it cancel the debt; it merely adjusted the remedy available to the creditor.
Brandeis, Stone, Roberts, and Cardozo joined the chief justice’s opinion sustaining the law. While “an emergency does not create power,” Hughes declared, it could be the occasion for the exercise of latent power. He then recited a long list of measures adopted by the states and approved by the courts under the police power to protect the health and safety of the citizens. Responding to Sutherland’s dissent that the Framers had intended the Contract Clause to be inviolate under any and all circumstances, Hughes quoted John Marshall’s famous dictum: “We must never forget that it is a constitution we are expounding, a constitution intended for ages to come, and, consequently, to be adopted to the various crises of human affairs.” Hughes found the crisis of the Depression sufficiently serious to allow Minnesota to act as it had. The majority had upheld the law primarily because it had been limited and did not prevent foreclosures; when Arkansas tried to go further and permanently exempt payments for life insurance from garnishment, Hughes spoke for a unanimous Court in striking it down.
Then in another state Depression law, a 5–4 majority upheld the New York State Milk Act of 1933, and Justice Roberts’s opinion echoed Brandeis’s dissent in New State Ice insofar as it dismissed any distinction between public and private. In the face of declining milk prices for dairy farmers, the state established a control board to regulate the entire milk industry, with power to set minimum wholesale and retail prices. The law aimed to stabilize markets and eliminate cutthroat competition. Leo Nebbia, a Rochester grocer, had been convicted of selling milk below the price set by the board. He claimed that the law unduly restricted his property, and beyond that, the milk business could not be considered as affected with a public interest, so any state control unconstitutionally interfered with the market. Had this case been heard with Taft and Sanford on the Court, it is likely that the law would have been struck down.
But Roberts apparently adopted Brandeis’s argument that the public need overrode traditional property rights. The state had recognized a problem and had taken reasonable steps to try to mitigate the difficulties; the wisdom of these steps did not concern the Court. Roberts asked if any constitutional prohibition existed to prevent a state from attempting to alleviate problems caused by an aberrant market. In words that chilled the conservatives, he declared, “We think there is no such principle.” The relation of any business to the public interest depended on current conditions, and any business might legitimately be deemed affected with a public interest and subject to regulation. Only a showing that the regulations had been unreasonable, arbitrary, or discriminatory would justify judicial intervention. Roberts’s definition of the public interest took away any distinction between public and private property, leading McReynolds to declare that Nebbia, taken together with Blaisdell, “marked the end of the constitution as you and I regarded it. An alien influence has prevailed.”
Certainly liberal commentators believed that the Brandeis point of view had prevailed and that the Court would now routinely approve state and federal anti-Depression measures. The New Republic, for example, predicted that it would be difficult for conservatives to recapture the lost ground, because the likelihood of continued economic turmoil would demand new measures. Liberals, however, had miscalculated where Hughes and Roberts would wind up. Roberts apparently paced the floor of his home for hours in indecision before casting his vote in Nebbia, and he would be won over by the conservatives in a series of important cases involving both federal and state legislation. While Hughes had sounded liberal in Blaisdell, he had also had important institutional concerns. When it became apparent that the conservatives could count on Roberts, he often joined them to avoid 5–4 decisions.
The Supreme Court in 1932. Seated from left: Louis D. Brandeis,
Willis Van Devanter, Chief Justice Charles Evans Hughes, James C. McReynolds,
George Sutherland; standing from left: Owen J. Roberts, Pierce Butler,
Harlan Fiske Stone, Benjamin N. Cardozo.
Those who thought the Court had abandoned the last vestiges of substantive due process and freedom of contract learned differently in June 1936. Roberts joined the conservatives to invalidate a 1933 New York minimum-wage law for women and children. Sutherland’s opinion for the Four Horsemen and Roberts relied entirely on Adkins v. Children’s Hospital (1923) and resurrected Lochner in full strength. Even normally conservative newspapers termed the ruling “regrettable,” and the Republican candidate for president, Alfred M. Landon, carefully distanced himself from the Court’s conservative bloc. The Republican Party platform that year specifically approved of state regulation of wages and hours for women and children.
Brandeis joined the dissents of both Stone and Hughes. Stone called for the Court to be consistent and follow the precedent of Nebbia, leaving the wisdom of solving problems to the legislative branch. Hughes found the majority opinion incomprehensible and declared that he found nothing in the Constitution “which denies to the State the power to protect women from being exploited.” The slim majorities in upholding state legislation, and the lack of clear statements from Hughes and especially Roberts, raised the very real specter that when the statutes passed by the federal government came before the Court, the conservatives would have enough votes to invalidate them.
THE GREAT DEPRESSION not only touched Brandeis’s work on the Court; it also affected at least one aspect of his extrajudicial activity. Brandeis, Julian Mack, Stephen Wise, and the other members of the Brandeis faction in American Zionism had believed from the time they resigned from leadership in 1921 that the policies of Chaim Weizmann and his lieutenant Louis Lipsky would lead to disaster for the Zionist Organization of America. The ZOA struggled throughout the 1920s, and when Weizmann went to set up the Jewish Agency for Palestine, he all but ignored Lipsky. The Depression did not sink the Lipsky leadership—it was already in serious trouble—but it hastened the end.
By 1929 many of the people who had supported Weizmann at Cleveland were speaking of the need for private investment and the development of small business in Palestine. In lobbying Louis Marshall and the American Jewish Committee, Weizmann abandoned his earlier program and, although he did not mention Brandeis by name, adopted all of his main arguments. Shortly after the establishment of the Jewish Agency, Horace Kallen and others issued a statement that the Brandeis plan now stood triumphant. With the growing acceptance of Brandeis’s ideas came a demand for the return of the old leadership.
Brandeis understood when a few members of his group tried to make peace with Louis Lipsky and his backers and served on the United Palestine Appeal or other ZOA committees, but he insisted there could be no compromise with “Lipsky or any of his ilk.” Brandeis’s antipathy to Lipsky went far beyond resentment over the loss of power; indeed, in no other area of his voluminous correspondence can we find such hostility toward an individual. Zionism had appealed to him because of what he saw as its nobility and idealism, and part of the synthesis of Zionism and Americanism had been the emphasis on moral uplift and on sacrifice. While he did not trust Weizmann or believe in his policies, Brandeis met with the WZO leader several times in the 1920s and on occasion sent written approval of some particular action. He did this because, no matter how wrongheaded he thought Weizmann was, he recognized his deep commitment to Zionism, and he saw Weizmann devoting his entire life to the cause and at great personal sacrifice.
In New York he saw nothing but men drawing salaries while they ran the ZOA into the ground, mismanaged its finances, allowed its membership to dwindle, and incurred a debt of over $140,000. When Charles Cowen visited the justice for advice on some Zionist matters, he got more than he had bargained for. “For five minutes,” Brandeis wrote, “I spoke to him impressively and torrentially of the shame to the Jewish people which had come from this self-seeking, incompetent and dishonest administration, which had prostituted a great cause; which, enjoying fat salaries in New York, had let school teachers in Palestine starve with six months of salaries in arrears; which had defied the teachings of the prophets that had sustained and maintained the Jewish People throughout the centuries.” When Cowen feebly asked what should be done, Brandeis, who had begun to look like an Old Testament prophet himself, answered: “Only the teachings of the prophets; return to truth, put an end to the lying. Turn out those who have obtained money under false pretenses and misappropriated that which they secured.”
As dissatisfaction with Lipsky grew, and as the ZOA’s troubles deepened, Jacob de Haas, Stephen Wise, and others began holding meetings to see what could be done to recapture the organization. Lipsky, no political naïf himself, managed to stay in power, but he saw his base of support dwindling. Then, on 23 August 1929, Arab mobs rioted in Palestine, leaving 125 Jews dead. Jews all over the world protested, and prominent non-Zionists like Herbert Lehman and Adolph Ochs publicly proclaimed their support of the yishuv and contributed generously to an emergency fund that raised $2.1 million to aid the victims. Jews called on Britain to live up to its obligations, but Chaim Weizmann could not influence his British friends at all, and eventually the British government issued a white paper temporarily stopping all immigration into Palestine. Felix Warburg, the chairman of the Jewish Agency, resigned, and this non-Zionist became the symbol of Jewish protest. Lipsky, like Weizmann, appeared impotent; he carried no influence in the American government or with his alleged non-Zionist colleagues, and very little within the movement. By the fall of 1929, American Zionism was falling apart, and its leadership seemed totally incapable of leading.
Without a base in the Zionist movement, Brandeis and his followers felt helpless in responding to the crises both in Palestine and in the ZOA. They would not work with Lipsky, so they decided to feel out Warburg and the non-Zionists. Bernard Flexner approached the banker on the justice’s behalf, and Warburg jumped at the chance. It was indicative of the changed circumstances in American Jewry that Warburg suggested that Brandeis leave the bench and assume direction not only of the Zionist movement but of the American Jewish Committee as well. This, of course, Brandeis would not do, but he agreed to participate in a conference on economic aid for Palestine and deemed the occasion so grave that he agreed to give a talk there, his first public pronouncement on Zionism in over eight years, and one of the very few he made while on the bench.
The meeting sealed the rapprochement between the Brandeis Zionists and the German Jews who had opposed them. No one spoke of the old wounds, but only of Palestine and the future. Brandeis publicly declared his faith that Jewish intelligence and fortitude would triumph in Palestine, and he reaffirmed his belief in the inevitability of a strong Jewish homeland there. “The road is economic,” he said, “and the opportunity is open.” (The conference established a committee to raise funds for economic development, but the plan had to be scrapped once the full extent of the Depression became known.) The main import of the conference, of course, lay in the apparent return of Brandeis to an active role in Zionism. Rabbi Louis I. Newman wrote a rhapsodic article titled “The Return of the Pilot.” The Jewish Tribune declared that the conference had brought back “a great leader to public participation in the tasks of rebuilding a Jewish homeland.” Even the ZOA organ printed his speech in full.
Although, as he told Felix Frankfurter, “the severe limitations which judicial office and my small vitality impose” would make active leadership impossible, Brandeis began directing the recapture of the ZOA with all the energy and hardheadedness that had marked his earlier reform efforts. To Jacob de Haas, Julian Mack, Stephen Wise, Frankfurter, and others went a stream of letters directing them to speak to particular people, make sure news stories were released, arrange for support of Hadassah, and to take other steps. When the ZOA met in Cleveland in June 1930, the atmosphere was tense. Representatives of the Brandeis-Mack faction met secretly with the Lipsky group to try to work out a compromise and avoid bloodletting that could only weaken the ZOA even further, but these negotiations proved difficult and protracted. From time to time someone would appear in the hall to announce that no agreement had yet been hammered out. During one of these moments, Robert Szold, a New York lawyer and cousin of Henrietta Szold’s, took the podium and read the following letter from Brandeis to the delegates:
I appreciate the generous suggestion which many of you have made that I should again assume the official responsibility of leadership in the Z.O.A. When eighteen years ago I first gave serious thought to the problems of Jewry and began to search for the means of preserving the spiritual legacies of Israel as an active force in the world, I became a Zionist and a follower of Herzl. My visit to Palestine in 1919 rendered more powerful the appeal; removed any lingering doubts as to the practicability of the undertaking; and convinced me that in carrying out the principles of the Balfour declaration the welfare of both Jews and Arabs would be advanced. The events since have deepened these convictions.
Added years make it impossible for me to assume now the official responsibilities of leadership as I did prior to 1921, but I am ready now as then to serve the cause. Necessarily the service to be rendered must be limited in scope to advising from time to time when requested on questions of major policy. Such service I am now rendering through Mr. Warburg to the Jewish Agency. Such service I can render also to the Z.O.A. In my opinion it will be far more effective if rendered to an administration formed on the general lines of the memorandum of May 22nd, 1930.
My warm greetings and best wishes.
Actually, this letter marked a softening of tone from the earlier memorandum, which had demanded a totally new Zionist Organization of America—new in organization, new in leadership, new in efficiency, and with all of its efforts directed toward the economic rebuilding of Palestine. In the weeks between the release of the memorandum and the convention, Brandeis insisted that no one should attempt to interpret it. The thing that the members had to do, he declared, “is to find themselves. That involves thinking.” The memorandum had caused an uproar since among other things it demanded that all officers of the ZOA serve without salary, and the Lipsky forces decided they would not go down without a fight. Szold, however, softened the tone of this memorandum when, after reading Brandeis’s letter, he informed the delegates that the justice would advise whether or not the convention accepted the memorandum. Brandeis had been under great pressure from his lieutenants, many of whom had come to Chatham to plead with him to withdraw the demands.
In the end the two groups worked out a compromise that provided for an eighteen-member “neutral committee,” six members of which would be appointed by the Lipsky faction and twelve by the Brandeis-Mack group. This committee would then have eighteen months to try to reenergize the ZOA. For all practical purposes, the Brandeis-Mack group had regained control of American Zionism.
Although Brandeis did not take a formal leadership role, informally he resumed the same flow of letters with their recommendations, demands for information, comments on finances, and other details that had marked his Zionist correspondence from 1914 to 1921. The people who had urged his return should be contacted immediately and asked for money: “Let no guilty man escape.” There ought to be a complete audit of the books to determine the true financial situation of the ZOA. He needed information on the Hedera settlement and had questions on some reports regarding the cooperative movement in Palestine. He approved of some steps Hadassah had taken in transferring some of its medical work to local communities. Each response led to new queries, new requests for information.
But even while he amassed this information, asked questions, and gave advice, he left the day-to-day operations of the ZOA in the hands of Bob Szold, whom he trusted implicitly. The constraints of office and his age did make it impossible for him to be the type of leader he had been earlier. It made little difference to the rank-and-file Zionists, for, as far as they were concerned, the “pilot,” in Louis Newman’s phrase, had returned.
The victory, however, proved somewhat hollow. The Brandeisians had assumed that everything wrong with the ZOA could be fixed by throwing out Lipsky and his ilk, but they soon learned differently. The return to power came at a time when the Depression made it almost impossible to secure men or money. Many Jews just did not have the cash either to pay the Zionist dues or to donate to a fund; they had all they could handle in trying to find work and keep their families together. The wealthier Jews gave their moneys to Palestine through the Jewish Agency, but even they felt the pinch of the Depression, and the agency never realized Weizmann’s hopes for it.
Beyond that, in the 1930s Great Britain seemed determined to appease the Arab world and slowly but surely reneged on its commitment in the Balfour Declaration. Weizmann had little authority with His Majesty’s Government, and Brandeis, while he had some contacts in London, lacked the influence in Washington he had when Woodrow Wilson had been president. The British cut off immigration to Palestine at the same time that Adolf Hitler came to power in Germany, a time when European Jews more than ever needed a safe haven. The 1930s would be difficult years for American Zionism, but the Brandeis group did lay a foundation for its rebirth at the end of the decade.
IN NOVEMBER 1931, Louis Brandeis celebrated his seventy-fifth birthday, and congratulations poured in from everywhere. The New York Times, which had once doubted his fitness to sit on the bench, now declared that “the country, and not he, is to be congratulated…. Year by year his stature as a Judge has increased.” The Harvard, Yale, and Columbia law reviews dedicated their issues to him. Felix Frankfurter collected some of the articles and published them as Mr. Justice Brandeis, and asked Oliver Wendell Holmes to write the introduction. Holmes happily obliged, and spoke of their long friendship over the years. “Whenever he left my house I was likely to say to my wife, ‘There goes a really good man.’ I think that the world would now agree with me in adding what the years have proved—’and a great Judge.’”
By this time Brandeis had assumed an iconic role for reformers. Aside from his career defending progressive measures before he went onto the bench, Brandeis’s espousal of judicial restraint endeared him to those who believed that the states had the constitutional authority to respond to a crisis as great as war or the Depression. As questions of civil liberties rose to the fore, the justice’s strong stand on freedom of expression appealed to those whose liberal—and in many cases radical—ideas aroused the wrath of the conservative establishment. When Franklin D. Roosevelt proposed his New Deal, they fully expected Brandeis to be a champion of those measures.