During the Court-packing fight, rumors had abounded that Brandeis would step down, thus giving Roosevelt an appointment and ending the jarring battle. Roosevelt, according to one story, wanted to appoint Felix Frankfurter to Brandeis’s seat. The justice, however, would not be budged. To resign in the midst of the struggle would harm the Court, and as for Frankfurter, the Harvard professor had lost some of his sheen by backing Roosevelt’s plan.
Brandeis knew, and those close to him recognized, that age had begun taking an increasing toll on his strength since his eightieth birthday. His mental capacity remained unimpaired, but he now wrote fewer than half the number of opinions he had written in his first two decades on the bench. Where he used to greet his guests at the door, they now found him seated at the Monday afternoon teas. He and Mrs. Brandeis continued to have people in for dinner, though the occasions were fewer, and Alice moved the departure time to nine o’clock. But he still had work to do, and in some ways his last terms on the Court gave him a great deal of satisfaction.
FOR ALL PRACTICAL PURPOSES, the decision in West Coast Hotel ended the fight between the Court and the New Deal, and although there would still be some 5–4 decisions, the Court did not strike down any more New Deal measures. With the retirement of Willis Van Devanter in June 1937 and of George Sutherland in January 1938, Roosevelt’s two appointees to replace them, Hugo Black and Stanley Reed, gave the Court a clear majority backing New Deal economic measures. Although Black would go on to become one of the great justices of the twentieth century, Brandeis at first mistrusted him and believed he did not have either the legal or the intellectual ability to sit on the nation’s highest bench. Within a short time Brandeis’s opinion of the Alabaman shot up. He approved of Black’s first opinion, and after his retirement told a visitor that Black was a hard worker and diligent. On the other hand, “the Court will welcome Stanley Reed,” he told Frankfurter. The justices knew Reed from his appearances as solicitor general, and the Kentuckian had been a frequent visitor to tea or dinner at the Brandeis apartment. Then in early 1938, Benjamin Cardozo became gravely ill, and died on 9 July. To replace him, Roosevelt, after teasing his friend unmercifully, named Felix Frankfurter to the Court, and he took his seat at the end of January 1939.
During these years Brandeis saw some of his dissents adopted by the Court. A series of cases first upheld the Norris–La Guardia Act prohibiting injunctions in labor disputes and then gave labor the protection that it had sought from prosecution under the antitrust laws, thus repudiating the Duplex decision. In Nardone v. United States (1937), the Court sustained a congressional statute outlawing wiretapping by federal agents, validating Brandeis’s dissent in Olmstead. Chief Justice Hughes spoke for the Court upholding the National Labor Relations Act and validating Brandeis’s argument that the state had the power to protect the liberty of workingmen by enforcing the right of collective bargaining.
In the last of the 5–4 labor cases decided in the 1930s, Brandeis spoke for the Court and took another step in expanding freedom of speech and also in validating the power of the states to bar injunctions in strikes. In Senn v. Tile Layers Protective Union, Brandeis brought picketing as a means of communication under the aegis of the First Amendment. “Members of a union might, without special statutory authorization by a State, make known the facts of a labor dispute,” he wrote, “for freedom of speech is guaranteed by the federal Constitution.” While a state could regulate the manner in which picketing took place so as to preserve order, it could not bar peaceful picketing, which had the intention of communicating to the public and to other workers the nature of the labor grievance.
Had this case arisen before the Taft Court, it would have undoubtedly been decided the other way. Paul Senn, an independent tile contractor, did half of the actual tile laying himself, with the help of one or two assistants. He could not join the union, because he had never served an apprenticeship under union sponsorship. The union demanded that he run a closed shop, which meant he would not be able to lay tile himself, in effect putting him out of business. He refused, and the union picketed his job site. Senn’s position represented a pure example of an individual seeking to pursue an occupation, a right that the Court had on numerous occasions held as fundamental. Brandeis’s description of picketing as the equivalent of commercial advertising ignored the fact that this “advertising” aimed to cut off a man’s livelihood. The conservatives of the Taft Court would have fastened on that; Brandeis’s credo of self-restraint led him to look for a rational legislative reason. Finding that, he ignored the practical results.
LOUIS BRANDEIS’S LAST GREAT CASE involved a cause to which he had been committed ever since going onto the bench, keeping federal jurisdiction within its constitutional bounds. A key element in his jurisprudence was the belief that the Constitution limited the power of federal courts, just as it did the executive and legislative branches. In Erie Railroad Co. v. Tompkins (1938), Brandeis not only overturned a century of precedent, but did so in a most unusual manner.
In 1812, the Marshall Court held that no federal common-law jurisdiction existed in the new nation; that is, federal judges were bound by the jurisdictional and statutory rules of the states in which the federal courts were located. In the next three decades, however, the nation’s economy grew far more rapidly than local laws could accommodate, and companies that did business in more than one jurisdiction began demanding consistency across state lines. Then Justice Joseph Story in Swift v. Tyson (1842) interpreted section 34 of the Judiciary Act of 1789 to mean that federal courts did not have to follow the decisional rules of the state courts, but only state statutory law. Since the decisional rules were often part of the state’s common law, this meant that federal courts were now free to create a separate federal common law when hearing commercial questions.
The importance of this decision to the new commercial interests cannot be overestimated. As firms grew larger and operated in more than one state, they could “forum shop” to find a federal court whose rules would be most receptive to their claims. Despite the barriers that the Constitution had supposedly erected to limit federal court jurisdiction, it did not prove hard to find a judge sympathetic to commercial interests who could stretch the meaning of such terms as “diversity of citizenship,” a constitutional rule barring citizens of the same state from going into federal courts. By the end of the nineteenth century there were practically no jurisdictional limits on the federal courts. They had achieved primacy not only over state courts and legislatures but to some extent even over Congress.
One of the most notorious abuses of this practice came in 1928 when a Kentucky taxicab company went across the state line, reincorporated in Tennessee, and then went into federal court to secure an injunction against a Kentucky competitor that had followed Kentucky law. The Supreme Court upheld the lower court, leading Holmes, joined by Brandeis, to enter a vigorous dissent in which he termed the Swift decision “an unconstitutional assumption of powers by courts of the United States which no lapse of time or respectable array of opinions should make us hesitate to correct.”
Work sheet for Erie v. Tompkins, 1938
Brandeis had recognized this problem well before the taxicab case. The use of the injunction against labor, as well as opposition to state progressive legislation, led many reformers to call for restrictions on federal jurisdiction. Not only populists and progressives joined the fight; proponents of states’ rights opposed what they saw as augmentation of federal authority at the expense of the states. In the academy liberal law professors like Felix Frankfurter supported the case for restricting federal courts, and throughout the progressive era and again in the 1920s reformers introduced bills in Congress to that end. They met strong resistance from powerful business interests that did not want to lose their access to sympathetic federal judges.
The first break came in 1932, when Congress passed the Norris–La Guardia Act restricting the power of federal courts to issue injunctions in labor disputes. Public faith in business and the legislative influence of corporations waned during the Depression. But average people had no idea what diversity of jurisdiction meant, nor did they care; one can work up public enthusiasm for a social security act or the electrification of rural America, but not for a bill dealing with a technical aspect of the law. Moreover, conservative members of Congress saw the federal courts as a bulwark not just for business but also against wild-eyed reformers. If change were to come, it had to come from within the high court itself. That chance grew out of a railroad accident.
Harry Tompkins was walking along the right-of-way of the Erie Railroad, a New York corporation, in Hughestown, Pennsylvania, late one night. A train with an object protruding from it struck Tompkins, knocking him under the wheels of the train. He was found un conscious, his right arm severed. After recovering from the accident, he filed suit against the railroad. According to Pennsylvania law, Tompkins would have been considered a trespasser, weakening his case for a judgment against the Erie. His lawyer, therefore, filed suit in federal court in New York, which viewed Tompkins as a “licensee” permitted to walk on the right-of-way. Tompkins won his suit, and the railroad appealed. Neither party, it should be noted, wanted to overrule Swift, and the railroad argued only that the lower federal court had misinterpreted the law. At conference the justices voted to reverse, and Hughes, knowing Brandeis’s interest in jurisdiction, assigned the case to him, not expecting the length to which he would go.
Had Brandeis followed the criteria he had set out in Ashwander, he could not have mounted his assault on Swift, since the constitutional argument had not been made either in the lower court, in the appeals briefs, or in oral arguments. The case, however, gave him the first opportunity since the taxicab case ten years earlier to deal with federal jurisdiction head-on, and he took the opportunity. Two members of the Old Guard—Van Devanter and Sutherland—had left the Court, and their replacements sympathized with reform efforts to limit juris diction. Moreover, Justice Cardozo’s absence due to illness also worked to Brandeis’s advantage. Had he been there, Cardozo would undoubtedly have argued for a narrowing of Swift rather than its outright reversal. Brandeis had to reach out well beyond the original borders of the case to attack the Swift doctrine, and despite the effort to sound dispassionate, Brandeis in this opinion is writing his personal view into law just as he had criticized the Four Horsemen for doing.
Ever the teacher, he spent half of the opinion detailing the mischievous results of Swift. Whereas Holmes in the taxicab dissent had objected primarily on intellectual grounds to the notions of a general common law, Brandeis the reformer pinpointed the abuses that flowed from Story’s doctrine. He also attacked Story’s interpretation of the 1789 Judiciary Act as historically wrong. The heart of his opinion, however, lay in its constitutional architecture, something that befuddled many people who, even if they agreed with the result, found the argument confusing. Because the decision required federal courts to follow state decisional rules and did away with forum shopping, most commentators have focused on the choice of law issues and ignored the constitutional argument. They did not understand what Brandeis meant when he termed Swift an unconstitutional decision. Many law professors and judges—even Felix Frankfurter—have ignored Brandeis’s constitutional argument because they did not appreciate it.
To Brandeis, the Constitution set up not only a separation of powers but a balance of powers as well, and he considered it clear (as do most modern scholars) that the Framers intended Congress to be the prime agency of the national government. This meant not that Congress overshadowed or could dominate the other two branches but that, in the delegation of powers, the Framers intended Congress to have the lion’s share as well as the initiative in setting policy. While in some areas the Court’s authority correlated to that of the other two branches, and while it ruled supreme within its designated domain, it could never assume primacy within the government ahead of Congress. The Court had done just that; it had extended its power to make itself the prime branch of government, against the intentions of the Framers and the clear wording of the Constitution itself.
The breathtaking scope of the opinion left some of the brethren unhappy. Stanley Reed, who had just joined the Court, wound up concurring in part because he could not go along with the constitutionality argument. The same reason upset Stone, who nonetheless agreed to go along after meeting with Brandeis, and he even suggested strengthening the constitutional basis. Stone may also have been more sympathetic because Brandeis had signed on to his opinion in the Carolene Products case handed down that same day, with its revolutionary argument that courts would apply strict scrutiny to laws affecting discrete minorities.
Although it initially appeared that Brandeis had done away with all federal law, that would have been impossible. Federal courts also had to deal with matters arising on land owned by the national government, as well as interstate matters where the laws of a state did not apply. Brandeis made this abundantly clear in a companion case, Hinderlider v. La Plata River & Cherry Creek Ditch Co. A Colorado state engineer stopped the company from siphoning water from the La Plata River in violation of a congressionally approved compact between Colorado and New Mexico over how the river’s waters would be divided. The company, relying on state law, claimed he had no authority. Speaking for a unanimous Court, Brandeis held there is a federal common law when interstate boundary and water disputes are involved, as well as in matters affecting federal lands.
Erie has had a troubled history. In part this is due to what is for Brandeis an uncharacteristically obtuse opinion, one in which he violated several of the rules he had set down as guides to the Court in the Ash-wander case. Later in the year Congress approved the Federal Rules of Civil Procedure (FRCP), which set up independent decisional rules for federal courts, although they are still required to follow state statutory law. Brandeis had wanted the courts to follow state decisional rules as well as statutory law, but the FRCP gave federal courts more leeway in which to fashion a federal common law. In addition, the growth of uniform codes, especially the Uniform Commercial Code, led to an increasing congruence of commercial law among the states and between the states and the federal courts. Some commentators believe that most private law cases heard in federal courts would be decided the same way under Swift as under Erie. Story’s opinion served its purpose at a time when American commercial law had been a patchwork of different state laws, and by 1938 had outlived its usefulness.
But Erie also has to be seen as the private law counterpart to the abandonment of substantive due process after the 1937 fracas. Federal courts had used substantive due process to control the legislature in its efforts to regulate the economy and the labor market, and had used the Swift doctrine to essentially control state legislatures in terms of private law. The demise of both these doctrines marked a fitting end to Brandeis’s tenure on the Court.
IN THE FALL OF 1938, Brandeis’s law clerk, Adrian Fisher, working in the justice’s study at Florence Court, received a phone call from a clearly upset Alice Brandeis. The elevator in the building was out of commission, the justice was on his way home from Court, and he could not be allowed to climb five steep flights of stairs. What would Fisher do about it? Fisher immediately went downstairs and found a straight-backed wooden chair; he then sought the help of the janitor, a big man who Fisher thought ought to have been playing professional football. When the eighty-two-year-old Brandeis entered, Fisher explained that the elevator was not working and asked him to sit down; then the two men carried him in the chair up the stairs to his apartment. “I will never forget that,” Fisher later recalled. “Brandeis in his overcoat and derby, serene as could be, taking it all in stride as though there was not the slightest problem.” In the meantime, Alice had run downstairs to supervise, and since she also had a weak heart, Fisher and the janitor came down and then carried her up as well.
Shortly after the new year, Fisher received another call, this one from Graham Claytor, who had been Brandeis’s clerk the preceding term. The justice had become ill while on the bench, and Fisher should arrange for a doctor to be at the apartment. Brandeis had a bout of flu (or grippe as they then called it) and probably suffered a minor heart attack as well. It took him a while to recover, and he uncharacteristically missed a month of work.
Brandeis had always been concerned about the effects of age on performance; Marshall and Story, he thought, had stayed too long, past the point where they stopped growing intellectually. Particularly since Holmes’s resignation, the justice had been concerned that he might not recognize when he should leave, and because he trusted Chief Justice Hughes, he had gone to him at the end of the term in 1937 and asked if he should retire. Hughes had responded that he saw no justification in doing so. Brandeis went again the following year, and this time the chief laid out what he thought were cogent reasons for Brandeis to stay. On 4 February, after returning to the Court, Brandeis again sought out Hughes, and again the chief saw no reason for him to retire.
The next day Brandeis had a long conversation with the newest member of the Court and told Frankfurter that he would resign the following week. While he believed that his judgment was as good as ever, he no longer had the physical stamina that the job demanded. He had not carried his share of the workload, and he did not want to continue unless he could do the job thoroughly; he did not know how to do it any other way. He would continue sitting so as not to give advance notice, and then on the chosen day he would send a note to the president. Frankfurter had started to express his regret at great length when Brandeis cut him off. “That’s not why I called you here. What are we going to do with Adrian?” Frankfurter agreed to use Fisher himself, although the young man continued to help out Brandeis on nonjudicial tasks.
A little over a week later, a courier delivered the following note to the White House: “Dear Mr. President: Pursuant to the Act of March, 1937, I retire this day from regular active service on the bench. Cordially, Louis D. Brandeis.” That day he joined the other justices, and a reporter in the chamber noted that no ceremony marked the occasion. Brandeis walked with a firm step that gave no indication either of his age or of his recent illness. He listened carefully as Justice Stone read the sole opinion of the day, but he asked no questions in oral argument in a case where the government wanted to deport Joseph Strecker, a former communist, knowing he would take no part in the decision.
Upon news of his leaving, newspapers all over the country lauded his service, and letters flowed in from hundreds of people. Roosevelt’s secretary called the president, who was in Hyde Park, to read him the letter, and Roosevelt immediately responded. Although “one must perforce accept the inevitable,” he had come to think of the justice as a “very permanent part of the Court,” one who in fact would still be there long after Roosevelt left Washington. He would, of course, accede, but hoped their long association would continue, with “the hope that you will be spared for many long years to come to render additional services to mankind.”
From his brethren on the Court came the traditional farewell letter, signed by all of the justices save McReynolds, who continued his anti-Semitic stance to the end. The letter said, in part, “It has always been gratifying to observe that the intensity of your labors has never been permitted to disturb your serenity of spirit…. We trust that, relieved of the pressing burden of regular court work, you may be able to conserve the strength which has been so lavishly used in the public service, and that you may enjoy many years of continued vigor.” Brandeis replied briefly that the justices were “very generous,” and their past friendship would ensure that they would remain companions in the years to come.
Newspapers that had once condemned him as a “radical” now praised him as a great jurist. Solicitor General Robert H. Jackson (who Brandeis had said should hold that position for life) wrote a moving essay recalling Brandeis’s lifelong fight against industrial injustice, and noting that in the lobby of the Justice Department building there was a large mural bearing an inscription from a Brandeis opinion, “If we would guide by the light of reason, we must let our minds be bold.” In Congress, David Walsh, an old Brandeis ally, rose to laud him in the Senate, while columnists as varied as David Lawrence, Walter Lippmann, and Max Lerner praised him, albeit for differing reasons.
The letter that no doubt touched him most came from his daughter Elizabeth. It had been hard to write, she confessed, and she did not want to sound mawkish. She understood that there should be no grieving; everything had to have an end. She did not fully comprehend all that he had done, but each year she came to have a greater appreciation, and expected that others would as well. “If the lessons you have taught do not seem to be learned very well yet, that is not for any lack on your part. Measuring my words, I do not see how any person could have done more than you have done.” Nonetheless, endings are always sad, but she promised that she and Paul would try, as would countless others, to carry on his work. “We shall all know how inadequate we are and how far we fall short of the standards you set. But I know you will be generous in your judgment of us.”
Despite the outpouring of praise, life in Washington went on, and speculation soon reached a fever pitch as to whom Roosevelt would appoint to take Brandeis’s place. Western senators wanted a man from their region, and liberals inside the administration persuaded the president to appoint the controversial head of the Securities and Exchange Commission, William O. Douglas, who originally came from the state of Washington. Douglas then and later considered himself a Brandeis disciple. During the 1930s he had been a regular visitor to Florence Court, and sent Brandeis SEC reports that echoed the indictment Brandeis had made years earlier of the New Haven’s finances. Both men had a strong aversion to the curse of bigness. Once, when Douglas left the apartment, Brandeis turned to his clerk and said with a smile, “He’s quite a fellah.”
Roosevelt sent in Douglas’s nomination on 20 March 1939, and that day Brandeis received an emotion-filled letter from Douglas. He was overwhelmed with humility, Douglas wrote, aware of the enormous task ahead of him, and mindful of the “great responsibility of one who is asked to wear your robe. The honor of the position is a great one. But the honor of following in your footsteps is even greater.” Years later Douglas claimed that before his retirement Brandeis had recommended him to the president as his successor, but no one has ever found evidence to back this up, and Douglas’s memoirs are full of exaggerations, misrepresentations, and out-and-out falsehoods. Brandeis did in fact approve of Douglas as his successor, and would certainly have approved of Douglas’s strong defense of freedom of speech and the right to privacy. Many other aspects of Douglas’s long tenure on the high court, however, would have filled him with dismay.
Alice and Louis at Chatham, 1941
DURING HIS RETIREMENT Brandeis followed pretty much the same routine he had adopted nearly a quarter century earlier. As soon as the weather became warm, he and Alice went up to Chatham, staying there until late September. He continued to receive visitors both on the Cape and at Florence Court, although Mrs. Brandeis watched over him to make sure he did not tire. These callers brought him news of government and of Zionism, both of which he continued to watch closely. Members of the Court, particularly Stone, Frankfurter, and Douglas, stopped by and sent him their opinions, which he almost invariably praised. After the Court upheld the 1938 Fair Labor Standards Act, Brandeis dropped Stone a note calling his opinion “powerful and persuasive,” and saying “it must be a satisfaction to have buried Hammer v. Dagenhart.”
When Charles Evans Hughes retired at the end of the term in 1941, Roosevelt named Stone to chief justice, a move that won universal plaudits. Brandeis immediately wrote to Stone, “To have the office go to the most deserving must encourage the whole country.” To a visitor Brandeis inquired, “Aren’t you delighted with what the President has done? No other President has performed such a signal service.” When his caller reminded Brandeis that President Taft, a Republican, had elevated White, a Democrat, to head the Court, the elderly jurist dismissed it. “White cannot be compared to Stone.” To Roosevelt, Brandeis wrote, “For the Court and for our Country the nomination for Chief Justice is the best conceivable.”
He continued to spend a great deal of time on Zionism, advising Robert Szold and the ZOA, providing generous gifts for projects, and, as the British marched headlong toward closing Palestinian immigration, trying unsuccessfully to devise a strategy to keep immigration open. Now that he had stepped down from the Court, he felt less reluctance to urge Roosevelt to act, although the justice understood, as did everyone else, that the outbreak of war in September 1939 changed everything. In April and May 1941 he sent notes to the president warning that the Jewish community in Palestine faced annihilation should the German armies sweep across Africa, and he wanted Roosevelt to pressure the British to arm the settlers for self-defense. Roosevelt, trying to help the British and aware that the United States would soon become involved, had the State Department forward the request. The Colonial Office, however, feared that arming the Jews could take place only if they also armed the much larger Arab population, a development no one wanted. Brandeis, although greatly disappointed by the actions of His Majesty’s Government, nonetheless remained confident that “the great work in Palestine will go forward.”
IN JUNE 1940, Alice wrote to an old friend, “I am glad to say Louis is as usual—serene and helpful whenever he can be.” He enjoyed his family, took pleasure in writing letters to his growing grandchildren, and, at the request of a young political scientist from Princeton, agreed to cooperate on a biography, although he went to great pains to make sure that everyone understood it was not an “official” work. Alpheus Thomas Mason had come to Brandeis’s attention for the works he had written in the 1930s: Brandeis: Lawyer and Judge in the Modern State (1933) and The Brandeis Way (1938), a study of savings bank insurance. Although Felix Frankfurter disapproved of Mason and wanted to choose the Brandeis biographer himself, the justice liked the young man and not only gave him full access to the papers he had earlier deposited at the University of Louisville but also agreed to interviews. Mason spent ten days at Chatham in July 1940 while the justice reminisced about his career, the people he had known, and his reform fights. Mason did not get to see the Court papers at Harvard, however, because Brandeis, at Frankfurter’s urging, had closed them.
Brandeis’s health slowly deteriorated, and while continuing his routine he found himself tiring more easily. He told his niece Fannie, “All I can do now is let people talk to me and imagine I can help. I don’t, but …” and his voice trailed off. In the summer of 1941 while at Chatham, he suffered a bout of pneumonia and came back to Washington without the sense of rest and well-being that the Cape had usually given him. A spell of unusually hot weather in Washington incapacitated him. Alice told their nephew that “he is going it slowly but serene as ever,” and she hoped that perhaps the worst was over.
In late September, Frankfurter came over for one of his periodic visits, which seemed to cheer the older man, and they talked about many things. The greatest mistakes men made, Brandeis said, derive from two weaknesses—the inability to say no and the unwillingness to take a vacation when they should, so that they make important decisions when tired. He also lauded Roosevelt, calling him a “noble figure” and, at least according to Frankfurter’s recollection, “greater than Jefferson and almost as great as Lincoln.” As Frankfurter left, he said he would be back soon for another talk.
On Wednesday morning, 1 October, Louis and Alice drove out to Rock Creek Park, where he lounged under a tree while she read to him. They returned home, and after lunch he suffered a heart attack; an ambulance rushed him to a hospital, where his condition deteriorated, and on Saturday evening he fell into a coma. Late afternoon on Sunday, 5 October, Louis Brandeis died.
The next morning close friends received telephone calls that Mrs. Brandeis would like them to attend a private service in the apartment on California Street on Tuesday afternoon at 3:30. About fifty people gathered in the living room, including the family, members of the Supreme Court and their wives, former chief justice Hughes, Mrs. Wilson, some leaders from savings bank insurance and Zionism, and several former law clerks. A string quartet played Beethoven.
Brandeis’s former law clerk Dean Acheson, now assistant secretary of state, delivered the eulogy. Of all his clerks, Acheson had remained closest to Brandeis, and he spoke on behalf of all the men who had “the great joy and the great fortune of serving him so intimately as his secretaries.” But what he meant to them, Acheson added, was not that different from what he had meant to hundreds of other young men and women who came to him for guidance and imbibed his ideas. “Throughout these years we have brought him all of our problems and all our troubles, and he had time for all of us. A question, a comment, and the difficulties began to disappear.”
Our generation, living between the two wars, often cried out, “What is truth?” and “saw in his action his burning faith that the verities to which men had clung through the ages were verities; that evil never could be good; that falsehood was not truth.” “Truth was less than truth,” Acheson concluded, “unless it was expounded so that the people could understand and believe. During these years of retreat from reason, his faith in the human mind and in the will and capacity of people to understand and grasp the truth never wavered or tired…. He handed on the great tradition of faith in the mind and spirit of man which is the faith of the prophets and poets, of Socrates, of Lincoln.”
The justice’s longtime friend and colleague Felix Frankfurter also spoke briefly, and recited a passage from Bunyan’s Pilgrim’s Progress that would be read at his own memorial service a quarter century later, the section on the death of Mr. Valiant-for-Truth: “My sword I give to him that shall succeed me in my pilgrimage, and my courage and skill to him that can get it. My marks and scars I carry with me, to be a witness for me that I have fought his battles who now will be my rewarder.”
The family had the justice’s body cremated, and on the anniversary of his death placed the urn containing his remains beneath the portico of the University of Louisville Law School. When Alice died in 1945, her ashes were placed next to his.
His estate amounted to more than $3 million, the bulk of it in bonds ($2.875 million) and nearly $300,000 in cash, and even after the heavy estate tax and executor fees tallied $1.9 million. Of this he left three-eighths to Alice ($712,500), and three-sixteenths each to Susan and Elizabeth ($356,250). The residual estate, after gifts to family members and associates such as Louise Malloch, went to Survey Associates, the University of Louisville, Hadassah, and the Palestine Endowment Funds.
A GREAT PERSON ACHIEVES that stature in part because of the times in which he or she lives. It is difficult, for example, to imagine Thomas Jefferson out of the historical context of America in the Revolutionary era and early Republic. But while the times may provide opportunity, the chance must be seized. Jefferson’s ideas transcend the period in which he wrote and still evoke our admiration, and his words in the Declaration of Independence continue to stir men and women to action. The eras of the Civil War, the Great Depression, and World War II were critical in American history; Abraham Lincoln and Franklin Roosevelt are considered great presidents because they met those challenges and led the nation to safety.
So, too, with Louis Brandeis. He had the good fortune to live in an age when the causes that mattered to him could be shaped by a man with a powerful vision and the intellect and personality to transform ideas into action. He entered law practice at a time when an industrializing economy demanded that lawyers take on new roles and provide new skills to their clients, and his success reflected his ability to understand his clients’ needs and advise them accordingly.
Legal classicism reached the peak of its power during this era, with bench and bar united in an effort to defend the status quo and private property while ignoring major social and economic changes in the country. Holmes, Pound, and others preached a “sociological jurisprudence,” one that took the realities of everyday life into account; Brandeis turned that theory into practice.
His reform efforts succeeded in part because of his exceptional organizing ability, and his understanding that in politics no single voice could secure legislative action unless backed by some group, citizens whose numbers—and votes—politicians could count. But to look just at his talent to organize would miss his capacity to rally his troops with ideas and moral fervor, at a time when morality in public affairs meant much more than it does today.
Brandeis’s role as a Zionist remains confusing to many people, since it lacked the religious fervor often associated with that movement. In the early part of the twentieth century, however, Zionism in the United States faced ideological problems unknown in the Old World, where Jews labored under severe political, social, and economic restrictions. The millions of Jews who immigrated to the United States beginning in 1880 saw this country and not Palestine as their promised land. They retained a fervor for Zion, but it could be awakened only by a plan that did not call into question their commitment to their new homeland. Only someone who shared the idealism of Zion without the religious components could have devised that plan, and only in that time.
Brandeis’s nearly twenty-three years on the bench epitomized what he had been preaching for much of his adult life—a living law, a Constitution responsive to the country’s needs, judges sensitive to changes going on around them. As much as anyone, he helped dismantle the old legal classicism and, at the same time, usher in a new concern for individual rights and liberties.
To say that Brandeis was a man of his time, however, is to ignore his unique intellectual and physical abilities. Other men and women lived in that same time and took part in reform, yet their names are almost lost to history. Louis Brandeis brought to his battles not only the courage to fight powerful foes and to face the resulting social ostracism but also an unbounded energy, a determination never to lose a struggle because he tired of fighting it. The traits were unique to him, and allowed him not only to grasp the opportunities his times offered to him but to succeed as well.
Nor can one say that Brandeis is only a figure from history. His ideas on lawyers as public servants, the use of the law in support of reform, and his sense that reform could not succeed without education and wide popular support are still relevant. Neither are his writings on privacy, freedom of expression, and other constitutional matters time-bound; they continue to instruct and shape modern jurisprudence. While historical events have greatly changed both the American Jewish community and the Jewish settlement that became Israel, the idealism he preached in his Zionist career still echoes, albeit faintly at times, in relations between American Jewry and Israel.
He became Isaiah, however, not because of his accomplishments as a lawyer, a reformer, or even a judge, but for the high moral standards he demanded of those in public life. In an era of continuous scandals involving public officials, when the highest offices in the land are tainted by unethical and at times illegal activity, it is perhaps hard for us to recall a time when standards of honesty, truthfulness, and respect for the law meant so much, and when they could inspire young people to devote their lives to public service. Ever an idealist, Brandeis was also a realist, and expected to be disappointed by the actions of his fellow men, who, as he constantly said, were wee beings. Yet he always had hope that in the long run right ideas and moral behavior would triumph. “My faith in time is great.”