“the Washington end”: LDB to Alfred Brandeis, 25 August 1925.
from his family: See, for example, Alfred Brandeis to LDB, 2 August 1909, LDB-BU.
private tutors: At LDB’s request, Frederika, between 1880 and 1886, wrote a memoir of her family and of her life before coming to the United States. The original German was translated by LDB’s wife, Alice, after his death, and privately printed for distribution to her children, grandchildren, and other members of the family. Reminiscences of Frederika Dembitz Brandeis (1943). Material on the early life of LDB’s parents is drawn from the memoir, as well as from Josephine Goldmark, Pilgrims of ’48 (New Haven, Conn., 1930).
Jacob Frank: According to the noted scholar Gershon Scholem, Prague was one of the centers of nineteenth-century Frankism, led by members of two distinguished families, Bondi and Wehle; Frederika’s mother was a Wehle. See Scholem, “Jacob Frank and the Frankists,” Encyclopedia Judaica 7 (1972), 55–71.
“So provide yourself”: Goldmark, Pilgrims, 209.
“I feel my patriotism”: Id., 202.
“common beast of burden”: Id., 207.
“only at a sacrifice”: Id., 207–8.
“hotbed of commercial capitalism”: Amy Shevitz, Jewish Communities on the Ohio River: A History (Lexington, Ky., 2007), 54. Between 1830 and 1850, a period Shevitz describes as Madison’s “golden years,” the population quintupled from eighteen hundred to nine thousand.
too diffident to use it: Excerpts from diary of John Lyle King, enclosed in Joseph M. Cravens to LDB, 19 November 1938, Wehle MSS.
The families started: Dr. Dembitz had chosen to stay in Cincinnati and practice there; Adolph’s brother Samuel set up a medical practice in Madison, while one of the Wehles opened a cigar store. Gottfried Wehle took an active role in Jewish affairs and has been described as the head of the often fractious Jewish community before he left for New York. Shevitz, Jewish Communities, 55.
Brandeis and his new partner: Very little is known about Crawford, a native New Yorker who settled in Louisville in the 1840s. His partnership with Brandeis made him “a business man of high standing” in the community. E. Polk Johnson, History of Kentucky and Kentuckians, 3 vols. (Chicago and New York, 1912), 3:309.
campaigns in the upper South: Carol Ely, Jewish Louisville: Portrait of a Community (Louisville, Ky., 2003), 47.
On one of those occasions: Ernest Poole, “Brandeis,” in LDB, Business—a Profession (Boston, 1914), xi; Alice Harriet Grady to Brenda Ueland, 14 July 1916.
never received a caning: C. B. Robinson to Alice Grady, 2 June 1916, LDB-BU.
spared the ordeal: The following section is based on Alice Harriet Grady, “Notes on Trip to Louisville,” 20 May 1916, Brandeis MSS-BU.
love of good music: LDB to Fannie Brandeis (niece), 11 June 1926; LDB to Hattie Bishop Speed, 11 March 1933.
“fun-loving American BOY”: Bert Ford, “Boyhood of Brandeis: An Early View of the Man,” Boston Sunday American, 4 June 1916.
scars went away: Alfred Brandeis to LDB, 20 June 1906, LDB-BU.
family left for Europe: Around 1910, Alfred read in the newspapers that Durastus had died and, thinking the family might need aid, called at the home and offered to pay the funeral expenses. The widow was appreciative of the thought, but explained that Durastus had carried sufficient life insurance to cover burial costs, that they owned their own home, and that their daughter was now a teacher in the Louisville public school for colored children and earned a good salary.
The water often enough: Grady, “Notes.”
taught at home: See, for example, Abraham Flexner, I Remember (New York, 1940), for a portrait of Louisville’s intellectual life in this period.
“I know will make many mistakes”: Frederika Brandeis to Fannie and Amy Brandeis, 11 August 1865; see also Adolph Brandeis to the girls, 15 August 1865, where he started the letter in German and then recollected that he had promised to write to them in English. The other letters written on that trip mix sections of German with sections of English. Letters courtesy of Charles Tachau.
in the original: For a sample of Brandeis’s vacation readings, see LDB to Amy Brandeis Wehle, 9 July 1891.
German author in translation: LDB to Alfred Brandeis, 20 March 1888. But, as he explained, the German edition of Karl Franzos, For the Right (1888), had not been available.
“sagacity and integrity”: Johnson, History of Kentucky, 2:972.
at the dinner table: According to William Hard, LDB credited his father with this rule; Philadelphia Public Ledger, 12 May 1916.
“have more children”: LDB to Frederika Brandeis, 12 November 1888 (fragment), quoted in Alpheus T. Mason, Brandeis: A Free Man’s Life (New York, 1946), 94. Frederika told LDB that “in you, my youngest child, everything is present that should make a mother proud and happy, that all my dreams of high ideals and of purity are united in you.” Reminiscences, 22.
When the children went out: Grady to Brenda Ueland, 14 July 1916.
“It seems to me”: Frederika Brandeis, Reminiscences, 20.
loyalties and support: See below, chap. 26.
for a good cause: Charles Nagel to Jennie Brandeis, 12 August 1928, courtesy of Fannie Brandeis (Alfred’s daughter).
“beautiful, gladsome life”: LDB to Jennie Brandeis, 8 August 1928, courtesy of Fannie Brandeis.
in King’s office: King Diary, 14 April 1849.
“reminded one of the Athenians”: LDB to Stella and Emily Dembitz, 22 April 1926.
“Dembitz in bed”: Ely, Jewish Louisville, 41.
thriving Jewish community: Adolph, of course, did business with other Jewish merchants, and the city served as a hub for Jewish peddlers traveling throughout the Ohio valley. Frederika knew some of the women through her activities, and the children, because they went to the same schools, knew other Jewish children. LDB would enjoy lifelong friendships with the Flexner brothers.
“secular Christianity”: Philippa Strum, Louis D. Brandeis: Justice for the People (Cambridge, Mass., 1984), 9.
“than for individuals”: Frederika Brandeis, Reminiscences, 33–34. LDB’s younger daughter, Elizabeth, would marry the son of a noted Christian theologian. LDB described him as a “rare find” and expressed great pleasure at her choice.
“broader aspects of humanity”: American Hebrew, 2 December 1910.
Day of Atonement: Grady, “Notes.”
“foretaste of heaven”: Solomon Goldman, The Words of Justice Brandeis (New York, 1953), 160. Why alone of that large family Lewis Dembitz chose to be observant is unknown, and if he ever explained it to his nephew, LDB did not retell it in any of his speeches or letters. Unfortunately, no Dembitz papers survived, nor copies of letters that LDB undoubtedly wrote to his uncle.
A scholar of religion: Moshe Davis, The Emergence of Conservative Judaism (Philadelphia, 1963), 333–35.
Zionist leadership: See below, chap. 17.
“as agreeable as possible”: Quoted in Mason, Brandeis, 28–29.
“every damned river in Europe”: Grady, “Notes.”
“remember the thrill”: LDB to Alfred Brandeis, 20 August 1927, 20 October 1908. LDB kept the ticket stub from a German production of Hamlet that he saw in Dresden on 22 September 1874, starring Richard Turschmann, LDB-BU.
so impressed Herr Job: Grady, “Notes.” Apparently, the rector told LDB he would have to take an examination but, because of the unusual circumstances, would give him three weeks in which he could be tutored. LDB took advantage of the time to study, but at the end of the time Herr Job allowed him to matriculate without an examination.
received a grade: His school notes, written in German in an old marbleizedcover copybook, include subjects such as “Projektion,” “Trigonometric,” “Geom. Examples,” and “Physik.” LDB-BU.
“a new discovery for him”: Mason, Brandeis, 31.
“believed in taking pains”: Felix Frankfurter, “Mr. Justice Brandeis,” 55 Harvard Law Review 181, 183 (1942).
“This made me homesick”: Poole, “Brandeis.”
practicing attorney’s office: Nearly all states then barred women from the practice of law. Justice Joseph Bradley, in a case supporting this view, declared that God had ordained women to be the protectors of the hearth, and thus unfitted them for the rough realities of a law practice. Bradwell v. Illinois, 16 Wallace (83 U.S.) 130 (1873).
“discourage real students”: Holmes, “Harvard Law School,” 5 American Law Review 177 (1870), quoted in G. Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self (New York, 1993), 91.
transformation in the law school: This section is based on material from Arthur E. Sutherland, The Law at Harvard: A History of Ideas and Men, 1817–1967 (Cambridge, Mass., 1967), chap. 6; Charles Warren, History of the Harvard Law School, and of Early Legal Conditions in America, 2 vols. (New York, 1908), chap. 43; and Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s (Chapel Hill, N.C., 1983), chaps. 2–4.
“earnest student of law”: Christopher Columbus Langdell, preface to his A Selection of Cases on the Law of Contracts (Boston, 1871), vi.
Socratic dialogue: Langdell wrote the first casebook on contracts in 1871, and then one on sales. James Barr Ames put together a massive tome on bills and notes in 1881, and by then both men included doctrinal readings as well as cases.
“the drama of life”: LDB, “The Harvard Law School,” 1 Green Bag 18–21 (1889).
to reason deductively: He took careful notes in his courses, written in full sentences. He later gave them to his daughter Susan when she entered law school some four decades later. They are now in LDB-BU.
that first year in law school: LDB to Wehle, 12 March 1876. LDB remained a lifelong enthusiast of both the law school and the Langdellian method. See his “Harvard Law School.”
the rest of his life: See, for example, LDB to Zechariah Chafee Jr., 5 June 1921, Chafee MSS.
“’morally right’”: LDB to Wehle, 12 November 1876. Bradley, according to Sutherland, only stayed for three years and resigned in 1879, and “was perhaps the last Harvard Law professor entirely unaffected by Langdell’s method of teaching.” Law at Harvard, 179n.21.
“great majority of the Judges”: LDB described Ames as “a man of the most eminent abilities as instructor, possessing an infallibly logical mind and a thorough knowledge of the Common Law.” LDB to Wehle, 12 November 1876.
an insurance company: Insurance Company v. Mosley, 75 U.S. (8 Wall.) 397 (1869).
“most dreadful punishment”: LDB to Wehle, 12 November 1876.
“he knows the facts”: Alpheus T. Mason, Brandeis: A Free Man’s Life (New York, 1946), 248–49.
to factual conditions: Some critics have accused Langdell of being a formalist, that is, one whose law is grounded in abstract theory, but in fact Langdell anticipated much of the so-called sociological jurisprudence and its emphasis on facts. Bruce A. Kimball, “Langdell on Contracts and Legal Reasoning: Correcting the Holmesian Caricature,” 25 Law and History Review 345 (2007).
“habits of industry”: Franklin G. Fessenden, “The Rebirth of the Harvard Law School,” 33 Harvard Law Review 493, 505 (1920).
Langdell’s new method: LDB kept up with other members of the club and with its doings after he left the law school. A file in LDB-BU marked “Pow-Wow” runs to 1937.
“his attractive personality”: Boston American, 4 June 1916; Alice Harriet Grady, “Notes of Trip to Louisville,” 20 May 1916, LDB-BU.
“it is generally correct”: William E. Cushing to Mrs. B. M. Cushing, 17 March 1878, in Mason, Brandeis, 3.
in his lifetime: Or perhaps since. According to Arthur Sutherland, the grading system at Harvard Law had changed over the years, so that one could not convert LDB’s grades into a modern scale. Nonetheless, “the astonishingly high quality of Brandeis’s work is still entirely evident.” Law at Harvard, 198n.44.
resolving the issue: Grady, “Notes.”
“terribly distressing”: Adolph Brandeis to LDB, 7 October 1877, quoted in Mason, Brandeis, 45.
turned in their weapons: For the national railroad strikes, see Philip S. Foner, The Great Labor Uprising of 1877 (New York, 1977). For Louisville, see Bill L. Weaver, “Louisville’s Labor Disturbance, July 1877,” Filson Club Historical Quarterly 48 (April 1974), 177–86. In comparison to labor disturbances in other cities, the detective Allan Pinkerton dismissed the Louisville riot as “a tempest in a teapot.” LDB’s recollection was in an interview with Alpheus Mason, in Brandeis, 48.
Louis borrowed money: Allon Gal, Brandeis of Boston (Cambridge, Mass., 1980), 16, claims that the wealthy Boston Jewish merchant Jacob Hecht put up surety for LDB’s tuition at law school, and cites as sources oral traditions in both families. Surety might have been necessary if LDB owed Harvard money, but since LDB had enough money, first from his brother and then from tutoring, to pay his tuition, it is unclear what role Hecht played. Moreover, queries of Frank Gilbert, LDB’s grandson, elicited no recollection of his ever having known about Hecht. The assertion by Gal that “Brandeis’s career at Harvard was first supported by Jacob H. Hecht” (34) appears to be totally without substantiation. LDB as a Jewish student at Harvard probably attended the Hechts’ open houses, but while these might have been pleasant socially, they did not, as Gal suggests, increase his sense of Jewishness.
he kept long afterward: LDB to Alfred Brandeis, 28 June and 5 July 1878.
problems with his eyesight: Mason is the only source for the suggestion that LDB was a sickly youth whose parents always worried about him. This hardly squares with stories of him ice-skating, fighting over a girl, or hiking through the Alps.
of judgment as well: Entry for 17 October 1946, in Joseph Lash, ed., From the Diaries of Felix Frankfurter (New York, 1975), 271.
these included Shakespeare: LDB to Otto Wehle, 12 November 1876.
“of one or more persons”: Sutherland, Law at Harvard, 194.
until he recovered: LDB to Otto Wehle, 31 August 1876.
Dr. Knapp found nothing: Grady, “Notes.”
His friend Philippe Marcou: LDB to Walter Bond Douglas, 31 January 1878, Douglas MSS.
“I am not doing”: Id.
large and legible hand: LDB to Alfred Brandeis, 28 June 1878.
“Cambridge is beautiful”: Id.
“surely bore me”: LDB to Amy Brandeis Wehle, 2 December 1877, Wehle MSS.
“most girls here”: LDB to Amy Brandeis Wehle, 5 April 1877, Wehle MSS; LDB to Alfred Brandeis, 28 June 1878.
After several evenings: LDB to Amy Brandeis Wehle, 5 April 1877, Wehle MSS.
Emerson lecture: Thayer also proved to be one of his most influential teachers in terms of constitutional theory. See LDB to Thayer, n.d. 1889.
“descendants of the Romans”: LDB to Alfred Brandeis, 28 June and 5 July 1878, EBR.
“for the first time”: James Burchard Howard to LDB, 2 March 1916; LDB to Howard, 7 March 1916.
excelled in the art of living: “He is one of the men who, opportunities and obstacles considered, made the most of life. He overcame the inherited appetite for drink. He bore & lived down the terrible misfortune inherent in his wife, and he functioned in business despite his lack of business ability. His happiness he earned through pursuit of art & the history which went with it; and the pursuit of orchids & the science which attended it; and took perhaps equal pleasure in the cultivation of a few worthy friends.” LDB to Alfred Brandeis, 19 June 1927.
“the world’s center”: Ernest Poole, “Brandeis,” in LDB, Business—a Profession (Boston, 1914), xii.
He also played ball: LDB to Alfred Brandeis, 11 August 1878.
“humbly beg your pardon”: LDB to Frederika Brandeis, 2 August 1878, in Mason, Brandeis, 50.
“without your permission”: Fannie Nagel to LDB, 4 October 1877, Nagel MSS.
number of attorneys: Much of this section is based on Burton C. Bernard, “Brandeis in St. Louis,” 11 St. Louis Bar Journal 1 (1964).
to live there as well: Charles Nagel to LDB, 23 March 1878, LDB-BU.
The larger firms: Nagel to LDB, 10 July 1878, LDB-BU.
recuperating in Louisville: Taussig kept the position open for him and told him “to take all the time necessary for a radical [complete] cure.” James Taussig to LDB, 22 September 1878.
admitted to practice: He kept the certificate and nearly fifty years later gave it to his daughter Susan. LDB to Susan Brandeis Gilbert, 7 June 1926, LDB-BU.
“interesting & instructive”: For LDB’s practice, see Bernard, “Brandeis in St. Louis.” 40 “onto my shoulders”: LDB to Amy Brandeis Wehle, late January 1879.
“as right and justice demands”: LDB to Otto Wehle, 1 April 1879.
“abstract of Record”: Buford v. Keokuk Northern Line Packet Co., 69 Mo. 611 (1879).
“‘bad cases’ hereafter”: LDB to Otto Wehle, 10 February 1879.
“under lock & key”: LDB to Otto Wehle, 1 April 1879.
pronounced it “excellent”: Holmes to LDB, 7 July 1881, Holmes MSS; LDB, “Liability of Trust-Estates on Contracts Made for Their Benefit,” 15 American Law Review 449 (1881).
“A hash of old cases”: LDB to Otto Wehle, 1 April 1879.
“Do you know the law”: LDB to Otto Wehle, 10 February 1879.
off family incomes: Thomas W. Thrash, “Apprenticeship at the Bar: The Atlanta Law Practice of Woodrow Wilson,” 28 Georgia State Bar Journal 147 (1992); Warren to LDB, 31 March 1879, FF-HLS.
“‘lots’ of nice people”: LDB to Amy Brandeis Wehle, 1 February 1879, quoted in Mason, Brandeis, 54.
Warren had been second: For Sam Warren and the Warren family, see Martin Green, The Mount Vernon Street Warrens: A Boston Story, 1860–1910 (New York, 1989).
“civilized man can exist”: Warren to LDB, 9 November 1878, in Nutter,
McClennen & Fish: The First Century (Boston, 1979).
“much in common with me”: Warren to LDB, n.d. [1879], FF-HLS.
“a more gallant fight”: Warren to LDB, 5 May 1879 and 9 November 1878, in Green, Mount Vernon Street Warrens, 67.
“social and financial position”: LDB to Warren, 30 May 1879, in id.
a lucrative practice: Warren to LDB, 31 March and 4 June 1879, in id.
“birds worth chasing”: LDB to Douglas, 6 July 1879, Douglas MSS.
“nothing in St. Louis”: Nagel to LDB, 5 July 1879.
Taussig also wrote: LDB to Nagel, 12 July 1879; Taussig to LDB, 15 July 1879.
“offer a sacrifice”: LDB to Frederika Brandeis, 20 July 1879.
the right decision: LDB to Nagel, 12 July 1879; LDB to Frederika Brandeis, 20 July 1879, in Alpheus T. Mason, Brandeis: A Freeman’s Life (New York, 1946), 59–61.
“I will stand it”: LDB to Alfred Brandeis, 31 July 1879, EBR.
later in Washington: For how Gray utilized his clerks, see Todd C. Peppers, “Birth of an Institution: Horace Gray and the Lost Law Clerks,” 32 Journal of Supreme Court History 229 (2007).
“even contradiction”: LDB to Nagel, 12 July 1879.
“I shall learn very much”: Id. A few weeks later he told Alfred that his work with Gray “is as pleasant and interesting as ever, and I feel very much its instructiveness.”
career at the bar: This aspect of LDB’s law practice has been well discussed in David W. Levy, “The Lawyer as Judge: Brandeis’ View of the Legal Profession,” 22 Oklahoma Law Review 374 (1969).
to save rent: Warren to LDB, 29 May 1879, FF-HLS.
Sam’s mother: Martin Green, The Mount Vernon Street Warrens: A BostonStory, 1860–1910 (New York, 1989), 63. Many years later LDB told his son-in-law that during his practice “I had practically no experience in drawing wills. Many were drawn in our office, but my partner [Sam] did all that work in his days. Even for my personal clients; and I relied wholly on his skill in that branch.” LDB to Jack Gilbert, 16 November 1933, LDB-BU. This is no doubt true for the practice, but a young man who spent so much time at the Warrens’ could hardly say no to his partner’s mother.
“principles and precedent”: LDB to Alfred Brandeis, 31 July 1879, EBR. 49 in his ability: Id.
Sam had worked: Warren had written to Brandeis, “The office in which I have been has not afforded me all the opportunities for learning procedure that I could have wished, but on the other hand it has given me the acquaintance & I think the friendship of Mr. O. W. Holmes, Jr. He is a fellow after my own heart in his way of looking at the law.” Warren to LDB, n.d. [probably April 1879].
trespass and negligence: LDB to Amy Brandeis Wehle, 4 December 1879, Wehle MSS. The reference is to a German proverb, “Was versteht der Bauer von Gurkensalat?” (“What does a peasant know about cucumber salad?”)—that is, it is quite above his head. However, whist appears to have been played, if not well, fairly frequently in the Brandeis family. Amy reported to her brother that “Otto, Al, Pa and I are playing whist. O, if you knew how horribly poor Uncle L[ewis] plays and still the dear man enjoys a game immensely.” Amy Brandeis Wehle to LDB, 23 November 1880, Wehle MSS.
for generations: Nutter, McClennen & Fish: The First Century, 1879–1979 (Boston, 1979), 3.
“you among my tutors”: LDB to John F. Warren, 3 August 1914.
lawyers and businessmen: Allen v. Woonsocket, 13 R.I. 146 (1880); LDB to Amy Brandeis Wehle, 6 April 1880.
“most promising law firms”: Gray told this to one of LDB’s relatives, and it was passed along in Amy Brandeis Wehle to LDB, 23 November 1880, Wehle MSS.
the best lawyer in Boston: Arthur B. Lisle, memorandum, 9 January 1943, LDB-BU. Perry did employ LDB in a complicated case involving securities issues, for which LDB devised a creative solution.
“and he generally wins”: National Monthly, December 1911.
company’s legal business: LDB to Alfred Brandeis, 11 September 1880, EBR.
“our opponent for a client”: LDB to Amy Brandeis Wehle, 2 January 1881. The quotation is from Shakespeare, Macbeth.
“success of W&B is assured”: LDB to Alfred Brandeis, 30 July 1881, EBR.
go buy candy: Interview with William Sutherland, Paper MSS. Sutherland said he met the man on a plane, and while they were chatting, the man learned that Sutherland had clerked for LDB and related this story.
did he broadcast them: See, for example, Edward Martin’s comment that LDB “is a Jew, but I knew him for years in Boston without being aware of it.” Martin to Henry Watterson, 9 February 1910, Watterson MSS. There is no implication in Martin’s letter that LDB was trying to hide anything, but rather that his religion mattered little to him in terms of his public persona.
majority of its clients: Allon Gal, Brandeis of Boston (Cambridge, Mass., 1980), 72ff.
in his reform work: Id., 44; LDB to Amy Brandeis Wehle, 2 January 1881. A Turnverein was a German-American social and athletic club.
three decades later: Associated Charities of Boston to LDB, 12 January 1895, LDB-BU. According to Barbara Solomon, LDB, especially as he became better known through both his reform and his legal work, would occasionally take part in ceremonial functions, such as the dedication of the new quarters of Mount Sinai Hospital in 1903. Pioneers in Service: The History of the Association of Jewish Philanthropies of Boston (Boston, 1956), 59.
and other aliens: E. Digby Baltzell, Allen Glicksman, and Jacquelyn Litt, “The Jewish Communities of Philadelphia and Boston: A Tale of Two Cities,” in Murray Friedman, ed., Jewish Life in Philadelphia, 1830–1940 (Philadelphia, 1983), 290–313.
business and financial community: George Nutter, who became one of his law partners, did not note any evidence of anti-Semitism against LDB until late November 1905, when a nominee for the Massachusetts Supreme Judicial Court, angry at LDB’s position in a municipal dispute, attacked him as a Jew ashamed of his race. This comment, according to Nutter, “disgusted all decent people.” Nutter Diaries, 11 November 1905. I am indebted to William E. Leuchtenburg for calling this material to my attention.
closed to Jews: See, for example, LDB to Alfred Brandeis, 10 October 1914.
city’s social elite: Leonard Dinnerstein, Antisemitism in America (New York, 1994), 52.
“twenty-five following”: LDB to Alfred Brandeis, 30 July 1881, EBR.
log of cases had reached: LDB to Edward F. McClennen, 9 March 1916.
“my first lieutenant”: The firm took a few Jewish associates, but most of the lawyers were Christian. Warren & Brandeis, and its successors, never acquired the reputation of a “Jewish firm,” a place where bright Jewish law school graduates could gain employment when shut out by the white-shoe Protestant offices.
“Mr. Warren’s room”: “We must have rooms in the same building as S. D. Warren & Co. in order that I may see something of Sam.” LDB to Alfred Brandeis, 20 March 1889, EBR.
Harvard Law School: Dunbar to LDB, 17 August 1896, in Mason, Brandeis, 82–83.
real partnership they sought: LDB to Dunbar, 2 November 1896, in Nutter, McClennen & Fish, 11–12.
flooded through the doors: “With me work is plenty, at present. Indeed I feel as to myself now as when I see water running over a dam—sad that I cannot reservoir it against the coming draught.” LDB to Alfred Brandeis, 23 March 1889, EBR. The drought, of course, never came.
advised the great author: James M. Landis, “Memorandum Detailing Conversation with LDB at a Dinner at the Hotel Bellevue,” 2 June 1932, FF-LC.
resumed the next morning: Elizabeth Evans to Ethel Unwin, 26 April 1934, Evans MSS. The letter, written on news of Grady’s death, also mentioned that the very religious Miss Grady feared that it would be a terrible thing if this brilliantly endowed Jew should use his talents for his own gain, and would pray for him as she took dictation.
adopt that rule: Samuel Williston, Life and Law: An Autobiography (Boston, 1940), 112.
reform work he did: Adolf A. Berle Jr. Memoir, OHRO.
“Common Sense of the people”: LDB to Amy Brandeis Wehle, 1 February 1895, Wehle MSS.
He argued, successfully: Wisconsin Rail Road v. Price County, 133 U.S. 496 (1889).
“do himself credit”: LDB to AGB, 25 June 1914.
best lawyer he ever knew: Charles Wyzanski Memoir, 296, OHRO. Judge Wyzanski, before whom McClennen often appeared, had a far lower opinion of him.
eastern and southern Europe: Figures on economic growth and other indexes of change can be found in Susan B. Carter et al., eds., Historical Statistics of the United States: Earliest Times to the Present, 5 vols. (New York, 2006).
“the rush of an express”: Quoted in Levy, “Lawyer as Judge,” 374.
problems of industrial change: The conservatism of the bar, and LDB’s reaction to it, are discussed in chap. 18 below.
“out of litigation”: James Willard Hurst, The Growth of American Law: The Law Makers (Boston, 1950), 345; Kermit Hall, The Magic Mirror: Law in American History (New York, 1989), 212.
“the wisdom of conciliation”: Filene to LDB, 11 November 1935, Filene MSS.
“master of economics”: Oliver Wendell Holmes Jr., “The Path of the Law,” in Collected Legal Papers (New York, 1920), 187.
throughout the country: Wayne K. Hobson, “Symbol of the New Profession: Emergence of the Large Law Firm, 1870–1915,” in Gerard W. Gawalt, The New High Priests: Lawyers in Post–Civil War America (Westport, Conn., 1984), 3–27; Robert T. Swaine, The Cravath Firm (New York, 1946), chap. 1. The Cravath firm is the predecessor of the current Cravath, Swaine & Moore, which, compared with some other firms, is considered small, with 390 lawyers and offices only in New York and London.
“any other occupation”: Felix Frankfurter with Harlan B. Phillips, Felix Frankfurter Reminisces (New York, 1960), 128; Levy, “Lawyer as Judge,” 377–78.
“or anything else”: Nutter to Frankfurter, 19 March 1929, quoted in Hobson, “Symbol of the New Profession,” 21.
they had previously enjoyed: The classic statement of this is Richard Hof-stadter, The Age of Reform: From Bryan to F.D.R. (New York, 1955). chap. 4. See below, chap. 9.
great New York law firms: LDB to Dunbar, 19 August 1896, in Edward F. McClennen, “Louis D. Brandeis as a Lawyer,” 33 Massachusetts Law Quarterly 1, 19 (1948).
“bed of Procustes”: LDB to Dunbar, 2 February 1893, FF-HLS.
“most profitable preparation”: LDB to Jacob Meyer Rudy, 14 April 1913.
“facts and law that surround”: Memorandum, “What the Practice of Law Includes,” n.d.
“in the Commonwealth”: Brandeis to Alfred Brandeis, 12 January 1908, courtesy of Fannie Brandeis.
“not a good way to live”: “An Unusual Man of Law,” New York Times Annalist, 27 January 1913.
regular wages: See Edward Filene, “Louis D. Brandeis as We Know Him,” Boston Post, 4 March 1916; LDB, “Business—a Profession,” speech at Brown University, 1912 commencement, in LDB, Business—a Profession (Boston, 1914), 5–9.
given such a task: William Hard, “Brandeis the Adjuster and Private-Life Judge,” Philadelphia Public Ledger, 14 May 1916. Another time one of his clients, a successful businessman, suddenly decided that he wanted to go into the ministry and sought LDB’s advice. The answer: the work of God might better be done by an experienced merchant running his shop on a humanitarian basis than by a novice cleric. The man took the advice. McClennen, “Brandeis as Lawyer,” 26.
Lennox into bankruptcy: The Lennox story is examined in U.S. Senate, Hearings Before the Subcommittee of the Committee on the Judiciary … on the Nomination of Louis D. Brandeis to Be an Associate Justice of the Supreme Court of the United States, 64th Cong., 1st sess., 2 vols. in 1 (Washington, D.C., 1916), 787ff. (hereafter cited as Hearings on Nomination); Mason, Brandeis, 232–37; Morris Weisman, “Brandeis and the Lennox Case,” Commercial Law Journal (February 1942), 36–41; and especially Clyde Spillenger, “Elusive Advocate: Reconsidering Brandeis as People’s Lawyer,” 105 Yale Law Journal 1445, 1502–11 (1996).
“interests of everyone”: Hearings on Nomination, 287.
profession had abandoned: This is the conclusion or, as some would say, the rationalization for LDB’s action. See John P. Frank, “The Legal Ethics of Louis D. Brandeis,” 17 Stanford Law Review 683, 698–703 (1965), a piece which concludes that LDB’s ethical stance should be copied by more members of the legal profession.
“render to anyone”: Geoffrey C. Hazard, Ethics in the Practice of Law (New Haven, Conn., 1978), 65.
or with guidance: Milner Ball, “Lawyers in Context: Moses, Brandeis, and the A.B.A.,” 14 Notre Dame Journal of Law, Ethics, and Public Policy 321, 333–34 (2000).
conflicts of interest: See Edward F. McClennen to Felix Frankfurter, 1 February 1916, and to William Dunbar, 30 March 1916; Mason, Brandeis, 238–40; Richard W. Painter, “Contracting Around Conflicts in a Family Representation: Louis Brandeis and the Warren Trust,” 8 University of Chicago Law School Roundtable 353 (2001); and Green, Mount Vernon Street Warrens, 81–85.
number of years: Sam Warren to Edward Warren, 4 May 1889; see also the testimony of Ned’s attorney, William S. Youngman, in Hearings on Nomination, 461–519, and exhibits, 519–607.
passion for art: Ned detested Boston, in part because its puritanical culture frowned on his homosexuality, and as soon as he graduated Harvard went to live abroad.
“intentional fraud”: Hearings on Nomination, 278, 283–84.
“our right impulses”: Sam Warren to LDB, 7 September 1901, in Green, Mount Vernon Street Warrens, 64–65.
leveled against Louis: Edward McClennen to Felix Frankfurter, 1 February 1916.
Warren’s full consent: Mason, Brandeis, 239–40.
“skirmishes cannot afford”: LDB to Alfred Brandeis, 21 March 1887.
worked in these areas: McClennen, “Brandeis as Lawyer,” 22–23.
another railroad baron: See below, chap. 8.
“raised that question”: Hearings on Nomination, 336–44.
leaving an estate: Hall, Magic Mirror, 213; Hurst, Growth, 311–12. Mason, Brandeis, 691, has a chart of LDB’s income and finances from 1915 until his death, as well as some figures for 1901–1915.
“fixed for the evening”: LDB to Amy Brandeis Wehle, 25 November 1880, Wehle MSS.
lecture by Holmes: For The Common Law, see the introduction to the 1963 reprint by Mark DeWolfe Howe, as well as G. Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self (New York, 1993), chap. 5.
“end of Solomon Grundy”: LDB to Alfred Brandeis, 11 September 1880; Union Boat Club, certificate of election of LDB as a member, 3 May 1880; LDB to Brandeis family, n.d. [winter 1880–1881].
“her grip on me”: LDB to Amy Brandeis Wehle, 2 January 1881.
rest of her life: LDB to Alfred Brandeis, 21 March 1887.
“a broader growth”: Evans to Alfred Lief, 27 March 1934, Evans MSS. In that letter she noted that not only did LDB keep an eye on her, but there was a mentally retarded young girl, Edith May, the niece of a mutual friend, and LDB would visit her, year after year, even after the aunt herself was declared insane, until he went on the Court. He had, she told Lief, an “extraordinary loyalty.”
“like one of my own family”: See memoir about LDB, n.d., in Evans MSS, which served as a draft for Elizabeth Glendower Evans, “Mr. Justice Brandeis: The People’s Tribune,” Survey, 1 November 1931; LDB to Evans, 3 March 1889, Evans to LDB, 1 December 1908, Evans MSS; Evans to LDB, 11 November 1926, LDB-BU. See also Mary Dewson, “Mrs. Glendower Evans,” 28 January 1938, Dewson MSS.
and the school: Although he gave generously at all times, in the early years he did not have the financial resources he enjoyed later. A typical gesture can be seen in 1916, when he told the dean of the school that he would give $ 1,000 a year for five years to help establish a legislative law program. LDB to Roscoe Pound, 27 March 1916, Pound MSS.
“his first crusade”: James M. Landis, “Mr. Justice Brandeis and the Harvard Law School,” 55 Harvard Law Review 184, 186 (1941).
the entire amount: For further details, see White, Holmes, 200–201.
“I congratulate you”: Alpheus T. Mason, Brandeis: A Free Man’s Life (New York, 1946), 65; White, Holmes, 198–205; LDB to Holmes, 9 December 1882, Holmes MSS. Mason writes that Weld insisted on anonymity, but in fact the chair has been called the Weld professorship almost from the start. Despite LDB’s tutoring, Weld had failed to complete one course at the law school and contemplated going back to take it and finish his degree. He had concerns that should this donation be known, it would make completing the degree awkward both for him and for the faculty. Weld completed the work, and Harvard awarded him the degree, dating it back to the year of his class, 1879.
“indulge in now extensively”: Mason, Brandeis, 66; LDB to Alfred Brandeis, 11 September 1880, EBR. “I am rather disgusted with myself physically,” he told his father in May 1883. “I have taken good care of myself—worked moderately, and still find myself below par; that is, I am easily exhausted and worn out, without good reason.”
an assistant professorship: Winthrop Wade took a full set of notes in that class, and either the contents or the notes themselves proved so good that Oliver Wendell Holmes borrowed, and eventually kept, them. LDB’s own notes for the course, written in hand on all sorts and sizes of paper, are in LDB-BU.
gesture to the law school: LDB to Christopher Columbus Langdell, 30 December 1889.
Law School Association: LDB to Winthrop Wade, 9 June 1886; LDB and others to alumni of the Harvard Law School, 9 August 1886, Harvard Law School Association, Report of Organization and of the First General Meeting at Cambridge, November 5, 1886 (Boston, 1887).
to recruit applicants: Landis, “Brandeis and the Law School,” 186–87.
“learned from text-books”: LDB, “The Harvard Law School,” 1 Green Bag 10, 21–22 (1889). LDB maintained this view throughout his life.
reports of important cases: Within a short period of time “making law review” became one of the credentials for the best students and a factor in their employment by the top law firms.
means to finance it: McKelvey went on to a successful legal career in New York; Mack became a federal circuit court judge and a close friend and ally of LDB’s in the Zionist movement; and Beale enjoyed a long and distinguished career as a teacher at the law school.
for the Review: Warren and LDB, “The Watuppa Pond Cases,” 2 Harvard Law Review 195 (1888), and “The Law of Ponds,” 3 Harvard Law Review 1 (1889). The third article, on privacy, is discussed below. For a discussion of the riparian articles, see Stephen W. Baskerville, Of Laws and Limitations: An Intellectual Portrait of Louis Dembitz Brandeis (Rutherford, N.J., 1994), 79–82.
first in the country: Langdell to LDB, 2 February 1891.
proposals he made: Landis, “Brandeis and the Law School,” 188; for the University of Louisville, see below, chap. 26.
“bring about justice”: LDB to Frederika Brandeis, 12 November 1888; Edward F. McClennen, “Louis D. Brandeis as a Lawyer,” 33 Massachusetts Law Quarterly 17 (1948).
“Democratic rule yet”: LDB to Alfred Brandeis, 11 September 1880, EBR.
“It is not pleasant”: Nagel to LDB, 17 June 1884, LDB-BU.
he met Woodrow Wilson: See chaps. 14, 16.
effective administration: The literature on mugwumps is quite extensive. See especially John G. Sproat, The Best Men: Liberal Reformers in the Gilded Age (New York, 1968); Gerald W. McFarland, Mugwumps, Morals, and Politics, 1884–1920 (Amherst, Mass., 1975); and David M. Tucker, Mugwumps: Political Moralists of the Gilded Age (Columbia, Mo., 1998).
drop the “investigation”: Alice Harriet Grady, “Boyhood of Brandeis,” Boston American, 4 June 1916.
“Am well & busy”: LDB to Alfred Brandeis, 30 January 1884, EBR.
to the male sex: Women had been eligible to serve on school boards in Massachusetts since the late 1860s and got the right to vote in school board elections in 1879. They did not receive the general suffrage until after the ratification of the Nineteenth Amendment in 1920.
against his client: Train v. Boston Disinfecting Co., 144 Mass. 523 (1887).
“will not be forgotten”: LDB to Bacon, 6 August 1890, in Alfred Lief, ed., The Brandeis Guide to the Modern World (Boston, 1941), 200–201; see also LDB to Charles Frederick Wingate (editor of the Springfield Republican), 23 September 1886, Wingate MSS.
“that we must fear”: LDB to Alfred Brandeis, 20 March 1886, EBR.
for various offices: LDB to Alice Goldmark, 10 and 17 October 1890, Popkin MSS.
political scene for decades: Richard M. Abrams, Conservatism in a Progressive Era: Massachusetts Politics, 1900–1912 (Cambridge, Mass., 1964), 3–4.
“fool for a client”: Geoffrey Blodgett, The Gentle Reformers: Massachusetts Democrats in the Cleveland Era (Cambridge, Mass., 1966), 107.
number of years: Argument before Joint Committee on Liquor Law of the Massachusetts Legislature, copy in Brandeis MSS, Scrapbook 1; Boston Evening Transcript, 9 February 1891; LDB to Alice Goldmark, 9 February 1891, Popkin MSS.
pro bono basis: Lewis J. Paper, Brandeis (Englewood Cliffs, N.J., 1983), 38.
“sense of uncleanness”: LDB to Felix Frankfurter, 26 February 1927, FFHLS. He compared this experience to having to sit through Calvin Coolidge’s Washington birthday speech.
more effective advocate: LDB to Elizabeth Glendower Evans, 14 November 189[4], Evans MSS.
“Did you think”: Boston Herald, 29 December 1894.
gave to charity: Paper, Brandeis, 39–40.
recommend paying clients: LDB to Jack Gilbert, 8 November 1928, LDB-BU.
“let him run down”: Boston Herald, 12 January 1897; Springfield Republican, 13 January 1897.
“save American civilization”: Quoted in Allon Gal, Brandeis of Boston (Cambridge, Mass., 1980), 24.
fallacy of free silver: LDB to AGB, 13 July 1896, Gilbert MSS; LDB to Elizabeth Evans, 6 August 1896, Evans MSS.
support from, the party: Blodgett, Gentle Reformers, 272–73.
“cost of the service rendered”: The notes for the lectures, running to 361 pages, are in LDB-UL.
unions as outlaw groups: The debate with Gompers is reported in the Boston Herald, 5 December 1902; see also LDB, “The Incorporation of Labor Unions,” originally published in 15 Green Bag 11 (January 1903), and reprinted in LDB, Business—a Profession (Boston, 1914), 88–98.
Treatise on the Constitutional Limitations: There is, unfortunately, no good study of Cooley, who has often been accused, unjustly, of fostering the worst aspects of classical legal formalism. See, however, Alan Jones, “Thomas M. Cooley and ‘Laissez-Faire Constitutionalism’: A Reconsideration,” Journal of American History 53 (1967), 759.
events at Homestead: Paul Krause, The Battle for Homestead, 1890–1892: Politics, Culture, and Steel (Pittsburgh, 1992).
“in my own career”: Livy S. Richard, “Up from Aristocracy,” Independent, 27 July 1914, 130–32.
are quite negative: Gerard Swope, student notes, “Business Law Fall 1893,” Swope MSS; see also Baskerville, Of Laws and Limitations, 107–12.
triggered that change: Brandeis had originally agreed to give the course every other year, and he apparently gave it again in 1895–1896, but not afterward.
“sort of social education”: Martin Green, The Mount Vernon Street Warrens: A Boston Story, 1860–1910 (New York, 1989), 104.
one of the most celebrated articles: LDB and Samuel Warren, “The Right to Privacy,” 4 Harvard Law Review 193 (1890). There has been a great deal of speculation as to what actually triggered Sam Warren’s anger. Alpheus Mason wrote that “the Saturday Evening Gazette, which specialized in ‘blue blood items,’ naturally reported [the Warrens’ entertainments] in lurid detail.” Mason, Brandeis, 70. Dean William Prosser, the twentieth century’s foremost authority on torts, claimed that news reports of his daughter’s wedding aroused Warren’s ire. Prosser, “Privacy,” 48 California Law Review 383, 423 (1960). Harry Kalven Jr., one of the leading scholars of free speech, thought the article’s argument erroneous, but also claimed that “it is now well known that the impetus for the article came from Warren’s irritation over the way the press covered the wedding of his daughter in 1890.” Kalven, “Privacy in Tort Law—Were Warren and Brandeis Wrong?” 16 Law & Contemporary Problems 326, 329n.22 (1966). Other sources suggest that reporters infiltrated the Warren household as members of the catering staff, and that one even smuggled in a camera, which Sam saw and knocked out of his hand. Still others claim that Warren resented political attacks on his father-in-law that depicted the former senator in a less-than-wholesome manner. James H. Barron, “Warren and Brandeis, … Demystifying a Landmark Citation,” 13 Suffolk University Law Review 85 (1970).
The problem is that none of this is true. Sam and Mabel Warren had six children, but their oldest daughter was only six years old in 1890. Given the state of photographic art at the time, one could hardly have smuggled a large camera, tripod, film plates, and a powder flash into a private home. The Saturday Evening Gazette, it turns out, was not a scandal sheet but a weekly paper that devoted most of its column space to news, political analysis, and art and literary reviews, and even the newspaper’s competitors in Boston recognized it as a first-class operation. The Herald, for example, called the Gazette the “queen of society newspapers. It is printed for a special class of patrons, is admirably edited, [and is] almost indispensable to every household.”
While some of the penny press did report on the social doings of the elite, the details, especially when compared with today’s tabloids, could only be considered tame: “Miss Grant … popped corn and ate baked apples with the second Comptroller and Congressman Ned Burnett the other afternoon in their bachelor quarters.” According to Lewis Paper, Sam Warren’s name only appeared twice in the Gazette, once in 1883, when he, Brandeis, and others announced they were bolting the Republican Party, and then in June 1890, when a Katherine H. Clarke married, and the paper reported that “Mr. and Mrs. Samuel D. Warren, the former a cousin of the bride, gave a breakfast for the bridal party” (Paper, Brandeis, 34–35). As for attacks on Senator Bayard, no politician—then or now—could afford to have a thin skin.
Fifteen years later Brandeis wrote that the inspiration for the article had been Sam Warren’s “deep-seated abhorrence of the invasions of social privacy.” LDB to Warren, 8 April 1905.
enunciated it in 1965: Griswold v. Connecticut, 381 U.S. 419 (1965).
unpublished authors and articles: I am much indebted in this section to Robert C. Post, “Rereading Warren and Brandeis: Privacy, Property, and Appropriation,” 41 Case Western Reserve Law Review 647 (1991).
right “to be let alone”: Olmstead v. United States, 277 U.S. 438, 471, 478 (1928) (Brandeis dissenting).
work on torts: Thomas M. Cooley, A Treatise on the Law of Torts …, 2nd ed. (Chicago, 1888), 29. The two men also read, and cited, an article that had appeared earlier in the year by E. L. Godkin, “The Rights of the Citizen: IV. To His Own Reputation,” Scribner’s Magazine, July 1890, 58–67, who also used the phrase “to be let alone.” Several years later someone asked Brandeis if he and Warren had gotten the idea for doing the law review article from Godkin, and both men said that there had been other issues, without explaining them. LDB to Warren, 8 April 1905.
sense of private space: Prosser, “Privacy,” 389. His distinctions were later incorporated into Restatement of the Law Second: Torts, §652A (1976); Kalven, “Privacy in Tort Law;” Barron, “Warren and Brandeis,” 907; Ruth Gavison, “Privacy and the Limits of Law,” 89 Yale Law Journal 421, 428 (1980).
and regimented society: Baskerville talks of “the wider intellectual relevance of the issue,” Of Laws and Limitations, 87, and he points out that the article relies very heavily on the notion that the common law remained sufficiently elastic to respond to all new conditions, at a time when the legal system in the country was already moving away from a common-law-centered jurisprudence toward one based on statutory and constitutional interpretation.
would be undermined: Post, “Rereading Warren and Brandeis,” 651–52, and citing Roscoe Pound, “Interests of Personality,” 28 Harvard Law Review 343, 363 (1915). For further elaborations on this notion, see also Sheldon W. Halpern, “The ‘Inviolate Personality,’” 10 Northern Illinois University Law Review 387 (1990); Edward J. Bloustein, “Privacy as an Aspect of Human Dignity,” 39 New York University Law Review 962, 100off. (1964); and Rochelle Gurstein, The Repeal of Reticence (New York, 1996), 149ff.
numbing of the senses: For a discussion of privacy in the twenty-first century, see Erwin Chemerinsky, “Rediscovering Brandeis’ Right to Privacy,” 45 Brandeis Law Journal 643 (2007).
invited may enter: For an interesting contrarian view, see Jessica Bulman, “Edith Wharton, Privacy, and Publicity,” 16 Yale Journal of Law and Feminism 41, 81 (2004). “While Warren and Brandeis argue that the individual’s independent personality must be protected through being let alone, Wharton insists that personalities are necessarily interdependent and that privacy is always bound up in publicity. For her, the female personality in particular relies on other people.”
no individual boundaries: For a good overview of current privacy concerns, including informational privacy, see Philippa Strum, Privacy, the Debate in the United States Since 1954 (Fort Worth, Tex., 1998).
most thoroughly disapproved: LDB to Alice Goldmark, 28 December 1890, Popkin MSS.
ignored the request: Warren to LDB, 10 April 1905. That same year LDB wrote to the editor of the Harvard Law Review, calling his attention to the case of Pavesich v. New England Life Insurance Co., 50 S.E. 68 (1905), sustaining “the right to privacy, for which we contended,” and suggesting the subject still a “lively” one that deserved further attention. LDB to Edward H. Letchworth, 20 April 1905.
“literature of the law”: Elbridge L. Adams, “The Right of Privacy and Its Relation to the Law of Libel,” 39 American Law Review 37 (1905).
“new field of jurisprudence”: Wilbur Larremore, “The Law of Privacy,” 12 Columbia Law Review 693 (1912).
the article’s premises: Fred R. Shapiro, “The Most-Cited Law Review Articles,” 73 California Law Review 1540, 1545 (1985); for early cases on privacy, see Morris L. Ernst and Alan U. Schwartz, The Right to Be Let Alone (New York, 1952), chap. 4.
“if not enlarge it”: Nagel to LDB, 18 March 1885.
in a serious way: Once, when LDB returned to visit the Nagels in St. Louis, Fannie wrote to her sister, Amy, “What do you think of Lutz this morning. Else Meier is here almost constantly.”
for its extravagance: LDB to Otto Wehle, 13 July 1878; LDB to Amy and Otto Wehle, 16 September 1880. Otto had written, “Amy hopes in this wise to get some of your brains into the boy…. If you want to protest against the abuse of your name you had better be in a hurry before the deed is done.” Amy Wehle to LDB, 26 September 1880, Wehle MSS.
had the best mind: Alpheus T. Mason, Brandeis: A Free Man’s Life (New York, 1946), 71.
“so much is a bore”: Fannie Nagel to LDB, 4 October 1877, Nagel MSS. Unfortunately, Fannie did not keep the letters from her brother. LDB, however, kept the ones Fannie sent to him, and years later gave them to her daughter, Hildegard.
a very good father: Fannie Nagel to LDB, 21 October 1877, Nagel MSS. The sentiment of concern, indeed almost fear, in not hearing from LDB for more than a few days is repeated in a number of letters.
woods and meadows: Fannie Nagel to LDB, 28 December 1877, 18 January [n.d.], Nagel MSS.
“world had forsaken me”: Fannie Nagel to Amy Wehle, 11 October 1884 and n.d.
“the one sane wish”: LDB to Adolph Brandeis, 16 December 1889.
killed herself: Most biographers of LDB have merely said that Fannie died (Mason, Brandeis, 71; Philippa Strum, Louis D. Brandeis: Justice for the People [Cambridge, Mass., 1984], 44), but conversations with the family, as well as with Bertram Bernard, who wrote about LDB and St. Louis, all indicate that she committed suicide, and Charles Tachau (Alfred’s grandson) confirmed this via telephone on 10 April 2007. Lewis Paper (Brandeis [Englewood Cliffs, N.J., 1983], 43) says she fell into a postpartum depression following the birth of her daughter, Hildegard, in 1889, but Hildegard had been born in 1886, and in the contacts that I have had with members of the family over the years, no one has ever suggested that there had been another child.
national labor laws: The best source on the Goldmark family is Josephine Goldmark, Pilgrims of ’48 (New Haven, Conn., 1930). Although there is no biography of Josephine, her book on her colleague Florence Kelley, Impatient Crusader (Urbana, Ill., 1953), contains a great deal of information about herself.
democracy and education in Denmark: Karl Goldmark, Notes from the Life of a Viennese Composer (New York, 1927); Democracy in Denmark (Washington, D.C., 1936).
stopped traveling: AGB showed the letters LDB had written to her during their courtship to Alpheus Mason, who used them in his biography, and before her death gave them to their daughter Elizabeth Brandeis Raushenbush, who in turn passed them on to her niece, Alice Popkin. Ms. Popkin provided David Levy and me with copies for our edition of the Brandeis family letters, where they are reprinted almost in their entirety. Urofsky and Levy, The Family Letters of Louis D. Brandeis (Norman, Okla., 2002), 34–72. Letters written to AGB after their marriage came into the possession of Susan Brandeis Gilbert, and after her death her children deposited them, as well as a host of other family materials, in the Goldfarb Library at Brandeis University.
“we have found each other”: AGB’s diary, which she showed to Mason, is no longer available. The quotations are from Mason, Brandeis, 72.
“and felt with us”: In 1895, Nagel married Anne Shepley, and in late 1894 he wrote to LDB to inform him of the engagement. Perhaps he expected LDB to feel that Nagel had betrayed Fannie’s memory, because he begged him “to be as considerate as a brother’s love can make you.” LDB, of course, did not oppose the remarriage, and the two men saw each other from time to time over the years. Whenever possible, Nagel also arranged for his daughter, Hildegard, to visit her cousins in Louisville and Boston.
not like smoking: LDB to Alice Goldmark, 6 and 7 September 1890, Popkin MSS.
“they will interest you”: LDB to Alice Goldmark, 9 September 1890, id.
“has come to me”: Alice Goldmark to Elizabeth Evans, 8 December 1890, Evans MSS.
of the troth: LDB to Alfred Brandeis, 8 September 1890; LDB to Alice Goldmark, 9, 12, and 29 September, 1 October 1890, Popkin MSS; LDB to Alice Goldmark (fragment), 15 September 1890, in Mason, Brandeis, 72; LDB to Walter Bond Douglas, 1 October 1890, Douglas MSS.
make another arrangement: LDB to Alice Goldmark, 13 September 1890, Popkin MSS. In the same letter he wrote of James H. Young, a partner in Hutchins & Wheeler: “We have lived together now six years with uninterrupted harmony and a broad sympathy. I cannot remember that in all those years one irritable or irritating word was spoken by one of us to the other, or that either appeared without the other being glad.”
“we have in common”: Sam Warren to Alice Goldmark, September 1890, in Mason, Brandeis, 73.
“without reserve”: LDB to Alice Goldmark, 2 and 27 October 1890, Popkin MSS. Professor Strum discounts the first letter as “indicating nothing more than that he was finally in love” (Strum, Brandeis, 45), but I think it reflected more than that, and indicated how much that love meant to him.
make their lives good ones: LDB to Alice Goldmark, 20 October 1890, Popkin MSS.
striving counted: LDB’s notion of a life of service is well captured in Learned Hand, “Justice Louis D. Brandeis and the Good Life,” 4 Journal of Social Philosophy 144 (1939), a radio address Hand had delivered to mark LDB’s eighty-second birthday in November 1938.
“being and becoming”: The exact quote from Arnold’s Culture and Anarchy (1889) is “Not a having and a resting, but a growing and a becoming.”
“is to be admired”: LDB to Alice Goldmark, 27 October 1890, Popkin MSS.
worthwhile that matters: Id.
“particularly the right”: LDB to Alice Goldmark, 9 and 28 December 1890, Popkin MSS.
“carry you off”: LDB to Alice Goldmark, 29 September, 1 and 24 December 1890, 13 and 15 March 1891, Popkin MSS.
and the like: The clock came from William D. Ellis, with whom LDB had worked on liquor legislation, and whom LDB described to Alice as a “client-bringing client.” LDB to Alice Goldmark, 17 January 1891. The clock, still working, is now in the possession of LDB’s grandson Frank Brandeis Gilbert in suburban Washington, D.C. Among the other wedding presents was a Japanese gold-lacquer box, given to them by Percival Lowell, the famous astronomer. LDB’s art critic friend Denman Ross called it one of the best pieces of old gold lacquer in the country, and at the time gold lacquer was no longer being made. That piece is now in the Speed Art Museum in Louisville, Kentucky. See “Addendum of Art Objects to be Presented … by Mr. Justice and Mrs. Brandeis,” in LDB to Hattie Speed, 9 October 1927, Speed MSS.
afflict him less often: LDB told Alice of his tiredness and said it did not result from his working too hard. Indeed he felt tired even after a day’s recreation on vacation, and suggested that it might not be physical fatigue so much as loneliness. This is the only time he makes this suggestion. LDB to Alice Goldmark, 11 October 1890,
wear the latest style: In 1952, Elizabeth Brandeis Raushenbush asked her aunt Pauline Goldmark to tell her about some of the family history, which included the wedding of her parents. “Alice spent an intolerably long time getting ready her trousseau, a very important matter in those days. Underwear was bought, a dozen of each, and table linens. A home dressmaker named Dora came with an assistant every Thursday and worked in our basement; Alice or Chris [Christine Goldmark] had to be there all the time, and Milly had to take trips to nearby stores for ‘notions,’ i.e., hooks and eyes, linings, etc.” Pauline Goldmark to Elizabeth Brandeis Raushenbush, memorandum, n.d., 1952. The original came to Professor Levy from Walter Raushenbush after his mother’s death, and is now in the Brandeis Papers in Louisville.
“speak the truth”: LDB to Alice Goldmark, 21 October 1890 and 7 February 1891, Popkin MSS.
“disgust of the carriers”: Pauline Goldmark, memorandum; Josephine Goldmark to LDB and AGB, 21 March 1941, LDB-BU.
“cumbersome furniture”: Boston Sunday American, 2 July 1916.
“from inner conviction”: La Follette’s Magazine, June 1916; Elizabeth Evans, “People I Have Known: Alice Goldmark Brandeis,” Progressive, 26 July 1930.
possible without Alice: Remarks by Felix Frankfurter at memorial service for AGB, 15 October 1945, Rauch MSS.
bring back to her: Evans, “Alice Goldmark Brandeis.”
“strength to go on”: Mason, Brandeis, 76; LDB to AGB, 28 December 1903; Evans, “People I Have Known.”
happiest in their lives: See, for example, Charles Nagel to LDB, 18 May 1891, LDB-BU. Nagel was visiting in Louisville, and wrote LDB on the many reports he had of how happily he and Alice had settled in to their new home.
“happiness was possible”: AGB to Elizabeth Evans, 27 March 1891, Evans MSS.
the house for dinner: The following is typical of dozens of such notes: “Will you dine with us tomorrow (Monday) at seven o’clock, entirely informally?” LDB to Philip S. Abbott, 11 December 1892, Abbott MSS.
“will be your very best”: Elizabeth Evans, “Interesting People I Have Known—Margaret Deland, Wife and Author,” Springfield (Mass.) Sunday Union & Republican, 19 March 1933.
“above things worldly”: LDB to Elizabeth Evans, 3 and 27 March 1893, Evans MSS; see also LDB to Amy Brandeis Wehle, 5 April 1893, LDB-BU.
regained her strength: AGB to Elizabeth Evans, 3 May and 31 August 1893, Evans MSS.
preparation for the day: Everyone knew about his early rising, and once, when LDB suggested that Emory Buckner meet him for breakfast, Buckner demurred. “I seldom rise earlier than six,” he wrote, and since he lived eight miles from where LDB proposed they meet, he would not be able to get there until around eight. “I realize that by this late hour your usual working day is well advanced.” Buckner to LDB, 26 May 1916.
knowledge casually handed: Conversations with Alice Popkin, Frank Gilbert, and Walter Raushenbush, Louisville, Ky., 12 November 2006.
“inhabitants are called ‘suckers’”: LDB to AGB, 8 April 1897.
chocolates and candied fruits: Paper, Brandeis, 46.
to bed by ten: Id., 45, based on a 1980 interview with Elizabeth Brandeis Raushenbush; Elizabeth Evans, “Justice Brandeis in the Intimacy of His Home,” Jewish Advocate, 14 November 1931. During the time that Professor Levy and I worked on the first five volumes of the Brandeis letters, we had several opportunities to talk with Mrs. Raushenbush, and she told us some of these same stories.
“Shall we do it soon”: AGB to Elizabeth Evans, 13 July 1892, Evans MSS; LDB to AGB, 27 November 1899.
the sights he saw: See Family Letters, 126–32.
on Zionist business: See chap. 21.
“the art can be compassed”: LDB to AGB, 11 August 1899. His daughter Elizabeth said that while her father could sail, “he wasn’t very good at it.” Paper MSS.
“trouble the spirit”: Remarks by Fola La Follette, memorial service for AGB, 15 October 1945, Rauch MSS.
these “dark” days: “Life is strange & very, very difficult. Some day perhaps I shall understand what now seems very dark.” AGB to Elizabeth Evans, n.d., Evans MSS.
“happiness is granted”: LDB to AGB, 31 January and [n.d.] September 1900.
“very carefully”: LDB to AGB, 28 December 1900.
“anything but cheerful”: AGB to Elizabeth Evans, 18 January 1900, Evans MSS.
“advantage over short stories”: LDB to AGB, 11, 21, and 31 January 1901.
“‘read aloud to Sister’”: LDB to AGB, 26 and 28 January 1900.
their sweet ways: LDB to AGB, 2 February 1901.
“carrying you off with us”: LDB to AGB, 17 February 1907, 23 November 1906, 7 July 1905.
specific to women: Strum, Brandeis, 45.
other possibilities: The pioneering work in this field is Phyllis Chesler, Women and Madness (New York, 1972), which showed that women were more likely to be labeled mentally ill and institutionalized than were men for comparable symptoms. A good overview of the literature, on which I have relied in this section, is Nancy Tomes, “Historical Perspectives on Women and Mental Illness,” in Rima D. Apple, ed., Women, Health, and Medicine in America: A Historical Handbook (New York, 1990), 143–72. I am very indebted to Professor Barbara Sicherman for pointing me toward this material.
fashionable disease: Ann Douglas Wood, “The Fashionable Diseases,” Journal of Interdisciplinary History 4 (1973), 25–52. For a classic example of how men viewed women with nervous conditions in the late nineteenth century, see the biting portrait of the husband in Charlotte Perkins Gilman, The Yellow Wallpaper (Boston, 1899).
pressures confronting them: Neurasthenia did not afflict just married women; Jane Addams suffered a severe bout of it in her younger days, before she found her calling at Hull House. See Louise W. Knight, Citizen: Jane Addams and the Struggle for Democracy (Chicago, 2005), chap. 5.
what might they have been: Some scholars have also suggested sexual pressure, and there are accounts of Harriet Beecher Stowe and other nineteenth-century women going to the hot baths to escape their husbands and avoid pregnancy. In this instance, we have absolutely no evidence that negative sexual tension existed between LDB and his wife. Moreover, as Peter Gay has shown, the Victorians were far more sexually enlightened and active than many people believed. See Education of the Senses (New York, 1984) and The Tender Passion (New York, 1986).
these assaults began: My colleague David W. Levy has suggested that Alice, who considered herself a person of intelligence and ability, with a contribution to make to society, looked around and saw people like Bess Evans, her sister Josephine, Jane Addams, and Florence Kelley actually out in the world, doing good work, accomplishing things, and felt not only jealous of the exciting lives they led but also demeaned and inferior. This is certainly a possibility, but one for which proof of its truth or falsity does not exist.
“shall be later”: LDB to AGB, 7 and 13 August 1901.
eventual shipment back home: LDB to AGB, 11, 21, and 22 August 1901.
“I could not well spare”: Adolph Brandeis to LDB, 26 July 1904.
“of those about him”: LDB to AGB, 10, 15, and 21 August 1905.
“better come at once”: Alfred Brandeis to LDB, 27 and 29 December 1905; LDB to AGB, 29 December 1905.
Amy passed away: Otto Wehle to LDB, 8 January 1906, LDB-BU, informing him of the seriousness of Amy’s illness; Louisville Courier-Journal, 18 February 1906.
their own studies: Author’s conversation with Elizabeth Brandeis Raushenbush.
the legislative hearings: LDB to Edward McClennen, 17 February 1916.
the commission’s approval: Massachusetts Board of Railroad Commissioners, 29th Annual Report (1898), cited in Richard M. Abrams, Conservatism in a Progressive Era: Massachusetts Politics, 1900–1912 (Cambridge, Mass., 1964), 64–65.
greedy speculators: Abrams, Conservatism, 65–66.
figure was unjustified: LDB to Board of Railroad Commissioners, 21 October 1897.
“demand like privileges”: LDB to Boston Evening Transcript, 30 April 1897; the letter appeared in the paper the following day. For an analysis of this letter as indicative of LDB’s social ethics, see James F. Smurl, “Allocating Public Burdens: The Social Ethics Implied in Brandeis of Boston,” 1 Journal of Law and Religion 59, 63–65 (1983).
“are in close connection”: LDB to Bancroft, 20 May 1897; see also LDB to Albert Enoch Pillsbury, 20 May 1897.
financial integrity: Abrams, Conservatism, 54n. 1.
“any man I have ever known”: Claude Moore Fuess, Joseph B. Eastman: Servant of the People (New York, 1952), 81. Fuess shows that LDB’s influence on Eastman was “decisive and continuous over many years.” As he became more prominent in national affairs, LDB recommended Eastman for several positions, and Eastman held a number of important jobs in Washington, especially on the Interstate Commerce Commission, from the Wilson administration into that of Franklin Roosevelt.
“what to expect”: LDB to Edward McClennen, 28 February 1916; LDB to Crane, 7 and 20 June 1901; Boston Post, 19 June 1901. Crane had warned the legislature a few days before meeting with LDB that he would veto the bill if it omitted a referendum. Ignoring this warning, the Senate approved the House measure, which lacked a referendum, and thus the governor was already primed to be persuaded by LDB.
support the league measure: LDB to James R. Carter, to Laurence Minot, to George B. Upham, and to Edward R. Warren, all on 24 February 1902; LDB to Edward Filene, 11 April 1902.
“master of the public”: LDB’s comments of 14 April 1902 were transcribed and included in a pamphlet issued by the league and the Board of Trade, “Shall the Boston Elevated Railway Co. Be the Servant or Master of the People?”
analysis as “sophistries”: LDB to Pillsbury, 30 April 1902; Pillsbury to LDB, 30 April 1902.
Commonwealth’s traditional pattern: Alpheus T. Mason, Brandeis: A Free Man’s Life (New York, 1946), 116.
large industrial concerns: Abrams, Conservatism, 73.
fares they charged: LDB, “The Experience of Massachusetts in Street Railways,” Municipal Affairs 6 (1902–1903), 721–29; a few years later LDB expanded on this theme in a speech at the Cooper Union, “The Massachusetts System of Dealing with Public Franchises,” 24 February 1905, typescript. About this time, Charles Evans Hughes, then beginning his reform career in New York, also advocated strong regulatory commissions with overarching mandates of authority from the state. Merlo J. Pusey, Charles Evans Hughes, 2 vols. (New York, 1951), 1:201.
“the people’s standpoint”: Comment on LDB paper, Municipal Affairs, 809, 811.
asked for his help: LDB to Mrs. Roland Lincoln, 30 June 1903, 6 May 1904.
Good Government Association: Copies of speeches before Good Government Association, 11 December 1903, and Brighton School Association, 2 December 1904; Boston Journal, 9 April 1903.
of interest to him: See, for example, the large blaring headlines “BRANDEIS FOR MAYOR?” Boston Traveler, 14 April 1903, and THREE MEN NOW IN THE FIGHT,” 15 September 1904, suggesting LDB was one of the three fighting for the Democratic gubernatorial nomination.
“attend to law business”: LDB to Adolph Brandeis, 1 August 1905.
might be founded: Warren to LDB, 30 April 1904.
pipelines were laid down: I am indebted to Professor David Marks of the Massachusetts Institute of Technology for information on coal gasification at the turn of the twentieth century.
$7 million in profit: In the 1960s, Brandeis University established a commission (of which I was a member) to look into the possibility of publishing LDB’s public papers. As an example of how this might be done, Professor William Goldsmith, a member of the political science department at Brandeis, produced a memorandum on the sliding scale, utilizing various LDB documents and letters as well as other sources, and including a history of the gas companies in Boston in the 1880s and 1890s. “Memorandum to Brandeis Commission, March 1968,” Goldsmith MSS.
into his snares: Thomas W. Lawson, Frenzied Finance, 2 vols. (New York, 1905), 1:69–70.
became law in May 1903: Boston Evening Transcript, 8 May 1903.
“new men you have in mind”: LDB to Warren, 2 May 1904.
current price of a dollar: Boston Evening Transcript, 7 March 1905.
bill already presented by the board: LDB had drafted the measure and had sent a copy to Governor William Lewis Douglas two days earlier; LDB to Douglas, 7 March 1905.
historic and successful traditions: “Consolidation of Gas Companies and Electric Light Companies: Argument of Louis D. Brandeis, March 9, 1905,” Goldsmith MSS.
unsuccessfully tried to calm: See, for example, LDB to Warren, 16 March and 5 May 1905, and especially the sharp exchange in Warren to LDB, 10 March 1905 (following LDB’s testimony), and LDB’s response, 13 March 1905.
“gods to sacrificial feasts”: LDB to Edward McClennen, 14 March 1916; LDB, Index, quoted in Mason, Brandeis, 133. He had once told Bess Evans, “Remember, to succeed you must: First: Sleep and keep well. Second: Not appear fanatical.” LDB to Evans, 14 November [1894].
Warren failed to heed: See, for example, LDB to Thomas M. Babson (Boston corporate counsel), 31 March 1905: “You will of course understand that in what I have stated as to sliding scale, I do not represent the State Board of Trade … nor do I write as representing the Public Franchise League.”
story on the plan: Boston Evening Transcript, 2 June 1905; the news story closely tracked the memorandum.
mislead the public: Outlook, 3 June 1905, 254–55; see also LDB to Bowles, 8 May 1905.
confirmation to the Court: LDB to Edward Filene, 24 May 1905; testimony of Edward R. Warren, U.S. Senate, Hearings Before the Subcommittee of the Committee on the Judiciary … on the Nomination of Louis D. Brandeis to Be an Associate Justice of the Supreme Court of the United States, 64th Cong., 1st sess., 2 vols. in 1 (Washington, D.C., 1916), 1612. George Anderson also objected to the compromise measure and said that since LDB had done all of the work, he and he alone should get the credit for it. Anderson to LDB, 6 May 1905. But after the sliding scale came into existence and worked, Anderson, alone of the opponents to the measure in the league, handsomely apologized to LDB.
urging its adoption: Report of the Special Committee, copy in Goldsmith MSS; LDB to Hall, 25 January 1906 (suggesting changes in the minority report), and to Edward McClennen, 14 March 1916 (admitting the major role he played in drafting that report).
necessity of life: Supporters of municipal ownership, such as the Hearst newspapers, opposed the sliding scale. See Editorial, Boston Evening Transcript, 2 April 1906.
Curtis Guild signed: Boston Evening Transcript, 26 May 1906. Even though the league sponsored the bill, Warren and others made known their opposition to it, and the local Hearst paper, opposed to the measure, ran a story with a large headline, “FRANCHISE LEAGUE split ON GAS SCALE,” Boston American, 14 May 1906. A few days later it ran another headlined—and rather misleading—story claiming that eighty-cent gas had been demanded in the House, when in fact, as noted in the body of the story, only one representative had “demanded” that rate. Boston Evening Transcript, 18 May 1906.
“out of politics”: LDB to Alfred Brandeis, 27 May 1906.
a number of times: See, for example, LDB to Clinton Rogers Woodruff, 13 June 1906.
treated the consumer honestly: The Hearst newspapers attacked the sliding scale during the hearings precisely on the ground that it would deter the coming of municipal ownership. See editorial criticizing the Hearst papers in Boston Evening Transcript, 2 April 1906.
details of the scheme: See, for example, New York Evening Post, 29 May 1906.
“a private corporation”: LDB, “How Boston Solved the Gas Problem,” American Review of Reviews, November 1907, 594–98, reprinted in LDB, Business—a Profession (Boston, 1914), 99–114. See also James L. Richards, “The Boston Consolidated Gas Company: Its Relation to the Public, Its Employees, and Investors,” Annals of the American Academy of Political and Social Science 31 (January–June 1908), 593–99, a piece that LDB could have written and whose premises echoed his own.
“‘the man behind’”: LDB to Alfred Brandeis, 27 May 1906.
a much lonelier place: Livy S. Richard, “Up from Aristocracy,” Independent, 27 July 1914, 131. There is some evidence that this social ostracism initially bothered Alice, but that LDB did not take much notice. Philippa Strum, Louis D. Brandeis: Justice for the People (Cambridge, Mass., 1984), 63.
“you can get my assent”: LDB to Charles Palen Hall, 13 July 1906.
“fully half his time”: Edward Filene, “Louis D. Brandeis as We Know Him,” Boston Post, 14 July 1915.
“I want to be free”: Current Literature (March 1911), cited in Alfred Lief, ed., The Brandeis Guide to the Modern World (Boston, 1941), 38.