1

The Curse of Bigness

AS LIBERAL REVOLUTIONS were crushed across Europe, the pilgrims of 1848 set off for liberty and America. They included Louis Brandeis’s father, Adolph Brandeis, who burned with a revolutionary passion for freedom: as soon as he heard about the uprising against the Austrian imperial government in Prague, he rushed to join the rebels; only an attack of typhoid fever thwarted his plan. The illness proved to be a blessing in disguise; because he missed the revolution, the twenty-six-year-old Brandeis avoided being placed on a list of those “proscribed” by the emperor and was able to leave Prague for the New World. This combination of a devotion to liberty and an ability to turn setbacks into opportunities was characteristic of Adolph Brandeis’s career, and his sense of revolutionary optimism inspired his son for a lifetime. At the outbreak of World War I, Louis Brandeis wrote to his daughter, “To me the world seems more full of hope and promise than at any time since the joyous days of ’48, when liberalism came with its manifold proposals.”1 From his father, Brandeis absorbed the inspiring example of a small businessman who, through hard work on a human scale, could develop his intellectual faculties and dedicate himself to personal and economic freedom while providing for the needs of his family and his community.

Born in Prague in 1822, Adolph Brandeis had hoped to become a chemist but, faced with the immediate need to earn a living, joined the mill his father owned for printing cotton. This was the first of the many small businesses that he would manage effectively over the coming decades. But Brandeis’s chances for advancement in the Austro-Hungarian Empire were limited by anti-Semitic laws and discriminatory taxes as well as by a new technology that threatened to make the family’s hand-block textile printer obsolete. Failing to find work after graduating with distinction from the local technical school, he set off for Hamburg, where he worked as a grocer; but this kept him apart from his next-door neighbor, with whom he had fallen in love.

When she met the charming, witty, and optimistic Adolph, Frederika Wehle Dembitz was living with her uncle and aunt across the street from the Brandeis cotton-print mill; like Adolph, she came from a Jewish family that traced its history back to the fifteenth century. Both the Brandeis and Dembitz families belonged to a persecuted sect of Judaism that professed allegiance to Jacob Frank, an eighteenth-century self-proclaimed messiah who emphasized the cultivation of inner freedom and the radical transgression of doctrinal boundaries. By rejecting the yoke of tradition, Frankism led to the Reform Judaism of the nineteenth century and opened up its adherents, including Brandeis’s ancestors, to new political and cultural trends.² Perhaps as a result, Frederika, born in 1829, grew up in a secular home—the family had a Christmas tree every year—in Poland, where her father was the court physician. From tutors and her father, she learned French, dancing, music, history, and literature: she became a passionate reader, a devotee of Schiller and Goethe. Putting music and reading at the center of her life, she passed the same values along to her children. But because her uncle’s family, too, was in the economically embattled textile trade, the Wehles and the Brandeises looked to America and to agriculture to revive their fortunes. In the same Jeffersonian spirit, Louis Brandeis throughout his life viewed yeomen farming—from the American South of his boyhood, which was sustained by slavery, to the kibbutzim of Israel—as the path to freedom and the ideal of democratic self-government.

In 1848, when Adolph Brandeis left Prague to search for farmland in America, he was a scout for the Brandeis, Dembitz, and Wehle families, arriving in New York and then heading west. He worked as a farmhand in Ohio, and wrote letters to Frederika quoting the poet Heinrich Heine and praising the independence of farmers and the leisure they had to improve themselves in the evening through reading and convivial conversation. Having identified a promising destination in Madison, Indiana—between Cincinnati and Louisville—Adolph sent for his family, and twenty-six members of the Brandeis, Dembitz, and Wehle clans embarked at Hamburg on the steamer Washington, accompanied by twenty-seven trunks and two grand pianos.

The families arrived in America in May 1849, and Adolph and Frederika were married the following September, joined in a double ceremony by Adolph’s brother Samuel, a doctor, who married Frederika’s cousin Lotti Wehle. The two couples set up a joint household in a small house in Madison, and the Brandeises had their first child, Fannie, in 1851. Concluding that farming was impractical, Adolph set up a grocery and cornstarch factory instead. The grocery thrived, but the starch factory did not, and so he moved his growing family down the Ohio River to Louisville, Kentucky. There he set up a wholesale wheat shipping business that flourished in response to demand for wheat from the East Coast; his ventures then expanded to include a flour mill, a tobacco factory, and, at last, an eleven-hundred-acre farm, and he and Frederika had three more children: Amy, born in 1852, Alfred, born in 1854, and Louis, born on November 13, 1856.

Louis Brandeis’s childhood was marked by emotional security, reflecting his reciprocated love for his siblings and his high-minded, civilized, and affectionate parents. His older sisters doted on him: Amy would name her son after her admired brother. Louis was especially close to his brother Alfred, with whom he took camping and canoe trips throughout his life: although studious, both boys also enjoyed youthful pranks—in 1864, they almost blew each other up while experimenting with fireworks on the Fourth of July. From his father, Louis absorbed wit and a talent for motivating others to do their best work. Most of all, Louis was close to his adoring mother, Frederika, the dominant figure in the household, who kept a close eye on his academic and moral progress. Frederika was a committed abolitionist, not a popular position in the pro-Union but hardly antislavery Kentucky, and Brandeis’s earliest memories included “a licking I got in school on the morning after Bull Run.” (He would have been just over five years and nine months old after the second battle of Bull Run, where Robert E. Lee soundly defeated the Union army at Manassas, Virginia, in August 1862.) He also remembered “helping my mother carry out food and coffee to the men from the North,” as he told an interviewer in 1911. “The streets seemed full of them always. But there were times when the rebels came so near that we could hear the firing.”3 After the Civil War, Brandeis’s mother, like other liberal whites, sympathized with Louisville’s African American community rather than the former slaveholders, and Brandeis, recalling his childhood, emphasized that his family had servants, not slaves.4

Frederika forbade the children to talk about business, finance, or personal gossip at the dinner table, encouraging them instead to discuss music, art, and literature. Brandeis later attributed his reformer’s zeal for public service to her example and observed that “the greatest combination of good fortune any man can have is a parentage unusual for both brains and character.”⁵

Frederika insisted on rigorous moral standards but not on organized religion. Although they never denied their Jewish heritage, the Brandeises were not observant Jews: they exchanged Christmas cards and the children were criticized by their neighbors for riding on Yom Kippur. In her Reminiscences, Frederika explained why she raised her children without organized religion: “Love, virtue, and truth are the foundation upon which the education of the child must be based. They endure forever. . . . And this is my justification for bringing up children without any definite religious belief: I wanted to give them something that neither could be argued away nor would have to be given up as untenable, namely a pure spirit and the highest ideals as to morals and love. God has blessed my endeavors.”⁶ Nevertheless, Brandeis had one important religious role model: his uncle, Lewis N. Dembitz, an orthodox Jew and fervent Zionist, whose Sabbath table Brandeis vividly remembered. Dembitz was also one of the three Jewish delegates to the Republican convention of 1860 who voted to nominate Abraham Lincoln.⁷

Brandeis admired his uncle intensely for his accomplishments as a lawyer and Talmudic scholar—he would play a role in establishing Hebrew Union College and the Jewish Theological Seminary—so much so that he would eventually substitute his uncle’s name, Dembitz, for his own middle name, David. His uncle reciprocated Brandeis’s admiration, although he appears to have set a high bar: when Brandeis was appointed to teach at Harvard Law School, Dembitz wrote to his nephew, “It’s the first time that I felt glad at your changing your middle name from ‘David’ to ‘Dembitz.’”8 After his uncle’s death, a passing comment from Theodor Herzl’s American representative, who recalled that Lewis Dembitz was a “noble Jew,” helped to persuade Brandeis, in his fifties, to assume the leadership of the American Zionist movement. Years later, Brandeis wrote to Lewis Dembitz’s daughters a moving tribute to his revered uncle: “To those of my generation he was a living university. . . . In the diversity of his intellectual interests, in his longing to discover truths, in his pleasure in argumentation and in the process of thinking, he reminded of the Athenians. . . . It was natural that he should have been among the first in America to support Herzl in his efforts to build a New Palestine.”⁹ To compare someone to an Athenian was Brandeis’s highest praise.

At the age of seventeen, Brandeis learned about the dangers of big banks that gambled with what he would later call “other people’s money”: his father’s business was wiped out in the Panic of 1873 after the collapse of eastern banks left several of his clients bankrupt. Apparently unrattled by this reversal of fortune, Alfred Brandeis then took the family to Europe for three years to show his children their roots. Although he had been a prize-winning and precocious student in Louisville, Louis failed the entrance exam for the gymnasium in Vienna and spent his first months in the city attending university lectures as well as concerts and the theater. He then persuaded the rector of the Annen-Realschule in Dresden to admit him without the entrance exam and excelled at his studies, which he credited with teaching him the importance of inductive reasoning, of developing new ideas by rigorously mastering facts. Years later he told his clerk Paul Freund “that although he did well in his studies theretofore, it was not until he went to Dresden that he really learned to think. He said that in preparing an essay on a subject about which he had known nothing, it dawned on him that ideas could be evolved by reflecting on your material. This was a new discovery for him.”10 Throughout his life, he proved willing to change his mind on important issues, from free speech to Zionism to women’s suffrage. Critics accused him of inconsistency, but admirers detected an impressive willingness to adjust his opinions after mastering new facts. (“It has been one of the rules of my life,” he once told an interviewer, “that no one shall ever trip me on a question of fact.”)¹¹ And although Brandeis changed his opinions about particular policy issues, he did not alter his basic principles—about the dangers of size in business and government, the importance of industrial and political democracy, the importance of liberty in creating independent, self-reliant citizens who were capable of self-mastery, and the duty of all citizens to educate themselves to develop the faculties of character, reason, and judgment that made self-government possible.

Despite his intellectual awakening in Germany, he recalled in the 1911 interview that “I was a terrible little individualist in those days” and “the German paternalism got on my nerves. One night, for instance, coming home late and finding I had forgotten my key, I whistled up to awaken my roommate; and for this I was reprimanded by the police. This made me homesick. In Kentucky you could whistle. . . . I wanted to go back to America, and I wanted to study law. My uncle, the abolitionist, was a lawyer; and to me nothing else seemed really worth while.”¹²

Inspired by his uncle to take up law, Brandeis returned to America in 1875 and enrolled at Harvard Law School. A fine description of Brandeis at Harvard in 1878 comes to us in a letter by a classmate, William Cushing, to his mother: “My friend Brandeis is a character in his way—one of the most brilliant legal minds they have ever had here. . . . Hails from Louisville, is not a college graduate, but has spent some years in Europe, has a rather foreign look and is currently believed to have some Jew blood in him, though you would not suppose it from his appearance—tall, well-made, dark, beardless, and with the brightest eyes I ever saw. Is supposed to know everything and to have it always in mind. The professors listen to his opinions with the greatest deference. And it is generally correct.”13

His closest friend on the faculty was James Bradley Thayer, the champion of strenuous judicial deference; at Thayer’s home in Cambridge on Phillips Place, he heard a lecture by his favorite author, Ralph Waldo Emerson. He also heard the last Harvard lectures of Henry Adams and kept a commonplace book filled with quotations from Emerson, Shakespeare, Matthew Arnold, Stevenson, Swinburne, and Lowell, who seem to have fired his polemical fervor: “The masses of any people, however intelligent, are very little moved by abstract principles of humanity and justice, until those principles are interpreted for them by the stinging commentary of some infringement upon their own rights.”¹⁴ Because of his father’s continued financial challenges, Brandeis borrowed funds for his law school tuition from his brother Alfred, and made additional money by tutoring his classmates. He lived so frugally and invested so well that at the end of his studies he had saved nearly $1,500, which he used to buy a railroad bond—the beginning of a lifelong practice of conservative investing in safe instruments with low returns that he continued even after he had become a millionaire.

Although he rationed his time rigorously during law school—giving up the violin after concluding he could never excel and his time would be better spent on other pursuits—Brandeis’s academic exertions exhausted him, and he developed eye strain that required him to ask his friends to read his law books to him. A letter to his sister at the end of 1877 conveys his Stakhanovite work schedule and his ability to enlist classmates in reading to him. “Wednesday evening I went to the Richards[,] studied about two hours & a half, then talked for about three quarters of an hour to Mother & daughter, and from eleven to o’clock [sic] listened to an article from the ‘New Quarterly’ on the ‘Lord Chancellors & Chief Justices since Lord Campbell.’”15 And having concluded that “reading, equivalent to drinking maketh a full man,” he set aside time in Cambridge and throughout his life to read classic works of literature as well as law. In letter from 1878, he wrote, “The whole of every Sunday morning is spent with my friend [Philippe] Marcou in reading (listening to—on my part) the German Classics—Goethe, Schiller, Lessing, Grillparzer.”¹⁶ Despite his eye ailment, which later cleared up, he surpassed his older classmates and graduated first in his class, with the highest marks in the history of the school. (His two-year average was 97, including two marks of 99 and three of 100).¹⁷ Because he was not yet twenty-one, the faculty had to grant a special dispensation to allow him to receive his law degree with the rest of his class.

In 1879, he returned briefly to the Midwest to practice law in St. Louis with the encouragement of his mother and brother-in-law, but soon accepted an invitation from his law school friend Samuel Warren to return to Boston to form a law partnership and to clerk for Horace Gray, the chief justice of the Massachusetts Supreme Court and future justice of the U.S. Supreme Court. “I am treated in every respect as a person of co-ordinate position,” he wrote of his clerkship to his brother-in-law, Charles Nagel, who would go on to serve in President Taft’s cabinet. “[The chief justice] asks me what I think of his line of argument and I answer candidly.”¹⁸

In a letter to his mother, Brandeis gives us a sense of his daily schedule, which always included time for focused leisure: “You want to know how I pass my days: then read: I get up shortly after seven o’clock, have breakfast, go for a walk usually till nine o’clock. Then (every day this week) I stayed at the C.J. [chief justice’s] till 2 o’clock. After lunch I go to our office, talk over business affairs with Warren, work there or in the Law-library according as business requires, and shortly after six o’clock I have dinner.” He then describes evenings rowing, swimming, and “shouting for joy in the full enjoyment of a bath in the lake. . . . Oh, how beautiful are heaven and earth here, hills and water, nature and art!”19

Despite his reputation as austere in public (his clerks would recall sliding copies of opinions under the door of his apartment at the crack of dawn and his silently retrieving the draft without opening the door), Brandeis revealed a loving and tender side in his letters to his family. His filial devotion was certainly moving: he said good night to his mother every evening until he left for law school and wrote her affectionate letters throughout his life. “I must send you another birthday greeting and tell you how much I love you,” he wrote to his mother in 1888, when he was thirty-two. “[W]ith each day I learn to extol your love and your worth more—and that when I look back over my life, I can find nothing in your treatment of me that I would alter. . . . I believe, most beloved mother, that the improvement of the world, reform, can only arise when mothers like you are increased thousands of times and have more children.”²⁰

Brandeis was similarly demonstrative in his courtship of his second cousin, Alice Goldmark, whom he had first met as a child. Brandeis became emotionally intimate with Alice in Louisville in March 1890, when he visited for the funeral of his sister Fannie, who had committed suicide in the wake of a depression that followed the death of her son and the birth of her daughter. Several months after the funeral, Alice invited Brandeis to join her family on their annual summer vacation in New Hampshire, and Brandeis’s letters soon became ardent. “My Dear, Sweet Alice,” Brandeis wrote in September of the same year. “How I long to be with you, to ask and to tell all that concerns us both. . . . To think you are mine and that I should know so little of my treasure—so little except its vastness, except that it is illimitable.”21 Later that month, he continued in the same vein. “My dear Alice, I see the future so beautiful, so rich in the blessings which your love will bring, there is a new point of view to every trivial circumstance of life. I have found the much longed for New Dimension. It must be depth. I looked into your eyes and beheld the infinite.”²²

The courtship was swift: Brandeis and Alice were engaged in October and married in March 1891, a year after their romance began. Alice’s brother-in-law, Felix Adler, the founder of the New York Society for Ethical Culture, performed the civil ceremony, which included no hints of Judaism. And the marriage was long and happy: Brandeis’s letters to Alice continued to be tender until the end. On her birthday in 1908, Brandeis wrote: “Only a word of love for tomorrow, and all time. I should regret more being absent on this day, were not all the year fete days.”²³ And he was still joking with her in 1911: “Having left my pajamas at home, I have purchased some flannelettes of dazzling beauty.”²⁴ When Melvin Urofsky published an article about Brandeis’s letters to his family in the 1980s, David Riesman, one of Brandeis’s last law clerks, who would go on to become the leading sociologist of his era (and one of my college teachers), wrote to me to express surprise. “For me, the most interesting news in the article on Brandeis was his writing daily to his wife when he was away,” Riesman wrote. “When I was his clerk, his wife seemed only to play a role of chaperon, sending guests away lest the Justice become over-tired.”²⁵

Alice remained involved in progressive political causes—supporting the campaign, for example, of Robert M. La Follette, the Progressive senator from Wisconsin. And during the austere Sunday afternoon teas the couple held in Washington during Brandeis’s Supreme Court years, she ensured that each guest had ten or fifteen minutes in the seat of honor next to her husband, her intent to minimize the strain and maximize the facts and informed opinion he received. Marquis Childs described the hour-and-a-half teas as a “slightly awesome institution” where guests would sit in stiff, high-backed chairs in the Brandeis’s living room on California Street, gazing at the prints of classical ruins. One of the guests to whom Brandeis took a liking was the young Harry Truman, who wrote that he and Brandeis “were certainly in agreement on the curse of bigness.”26 Riesman recalled that Mrs. Brandeis “was glad to have me arrange to invite people for Sunday tea who would be interesting for the Justice.”²⁷

Alice also supported his Supreme Court nomination as a welcome change from the exertion of his political activities; when he returned home on the day of his confirmation on June 1, 1916, she greeted him with a warm “Good evening, Mr. Justice Brandeis,”²⁸ as opposed to her habitual endearment, “Demby.” Still, throughout their fifty-year marriage, Alice suffered neurasthenic ailments that prevented her from participating in Brandeis’s vigorous exercise regimen of hiking and canoeing or in household management; from the beginning of their marriage, Brandeis took charge of practical domestic affairs, ranging from paying bills (with an eagle eye on expenses, which he carefully enumerated) to buying furniture, in order to relieve his wife of strain.

In 1893 and 1896, respectively, Brandeis’s two daughters, Susan and Elizabeth, were born. Brandeis devoted himself to the education of both, reading to them for an hour every morning during his 7:00 breakfast from literature, history, philosophy, or math. Making time for his family was part of Brandeis’s philosophy of setting aside time for rest, vacations, and leisure, rather than working day and night.²⁹ Both daughters had distinguished careers in public service, with their father’s loving but watchful support: Susan, who graduated from Bryn Mawr and the University of Chicago Law School, practiced law with her husband, Jacob H. Gilbert. She helped to oversee New York schools as a member of the state board of regents and was a lifelong member of Hadassah.30 Elizabeth graduated from Radcliffe and received her PhD in economics from the University of Wisconsin; she later taught at Wisconsin and contributed to the series History of Labor in the United States, focusing on the period from 1896 to 1932. With her husband, Paul Raushenbush, she fought for federal and state laws guaranteeing unemployment compensation.³¹ Brandeis was proud of both daughters for advancing his own passionate devotion to Zionism and social justice for the unemployed.

After law school, he set up a law practice in Boston with his Brahmin classmate Samuel Warren, with whom he wrote in 1890 “The Right to Privacy,” one of the most famous law review articles in American legal history. Published in the Harvard Law Review, it was inspired, according to Brandeis, by Warren’s “deep-seated abhorrence of the invasions of social privacy”³² by new media technologies such as the instant camera and the tabloid press. In particular, Warren and his patrician wife were upset about gossip items in the Boston society pages—including stories about Mrs. Warren’s friendship with President Grover Cleveland’s young bride, which they somehow perceived as an indignity. (Another account says that Warren was “outraged when photographers invaded his babies’ privacy and snapped perambulator pictures.”)³³ Despite the fact that Louis and Samuel were close friends in law school—Samuel ranked second in the class after Brandeis and read to him to conserve his vision—Mabel Warren’s anti-Semitism led her to exclude Brandeis from her wedding and her home. That didn’t prevent her, however, from urging her husband to seek out Brandeis to propose a remedy for what she considered the indignities of the society pages, in which she and her husband appeared more than sixty times in the 1880s.³⁴

In their article, Warren and Brandeis began by decrying new media technologies that menaced the privacy of celebrities and aristocrats. “Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops,’” they wrote.35 “To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle.”³⁶

Warren and Brandeis set out to identify a legal principle that might protect celebrities and other objects of tabloid gossip from emotional injury. Here, however, they faced a challenge. Unlike European law, American law had not, historically, protected individuals from the hurt feelings that resulted from what they called offenses against “honor.” Instead, American law had protected liberty rather than dignity. So Warren and Brandeis set out radically to transform American law by proposing an entirely new legal right, which they called “the right to be let alone.” The right they proposed had three elements: it allowed celebrities to sue the press for emotional injury; it allowed citizens to remove true but embarrassing information from public debate; and it required courts to distinguish between what truthful information was fit for the public to know and what was none of the public’s business.³⁷ There was just one problem with the new right that Brandeis and Warren proposed: it clashed directly with the First Amendment’s protections for free speech and public debate. Although Brandeis’s article attempted to preserve free speech by treating public figures differently than private figures, the distinction still required judges to decide when emotional injury should trump the public’s interest in truthful facts or opinions. Even when he received the page proofs of the privacy article in November 1890, he wrote to Alice Goldmark: “[T]he little I read did not strike me as being as good as I had thought it was.”³⁸

In his later opinions on the Supreme Court, Brandeis came to believe, as the scholar Neil Richards put it in describing Brandeis’s evolution, that “when free speech and traditional notions of privacy conflict, free speech should almost always win.”39 And Brandeis also came to embrace a different vision of privacy—Richards calls it “intellectual privacy,” which he defines as “protection from surveillance or interference when we are engaged in the processes of generating ideas.”⁴⁰ In other words, Brandeis came to believe that we don’t need to choose between privacy and free speech because far from clashing with democratic values of public debate, intellectual privacy is essential to it.

One of the experiences that may have changed Brandeis’s mind about the right to privacy was his growing interest in what he called the “Duty of Publicity” as a way of countering economic fraud. As he wrote to Alice in 1891, writing “an article on ‘the Duty of Publicity’—a sort of companion piece to the last one” (that is, his article on the right to privacy) “would really interest me more.” His imagination was fired, he said, by examples of “the wickedness of people shielding wrongdoers & passing them off . . . as honest men.” His conclusion: “If the broad light of day could be let in upon men’s actions, it would purify them as the sun disinfects.”⁴¹ Over the course of the decade, Brandeis would develop this metaphor as he became increasingly focused on the idea that citizens could protect themselves from the greed and predations of unscrupulous capitalists if they understood the complicated financial instruments in which they were being asked to invest, and this led to one of the most memorable aphorisms in his 1914 book Other People’s Money: “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”

In thirty-seven years of law practice, Brandeis became one of the most successful lawyers in America, hailed as “the people’s lawyer” for representing the interests of family businesses and minority stockholders in fights against the rapacious monopolies of the Gilded Age. Early in his career, Brandeis had defended corporations for contributing to “the great industrial development of the present century,” including the construction of the railroads and telegraph; but Andrew Carnegie’s decision in 1893 to mobilize Pinkerton guards, who opened fire on the striking union workers at the Carnegie plant in Homestead, Pennsylvania, convinced him that management and labor unions were not competing on equal terms. As a result, Brandeis told an early biographer, he threw away the notes he had drafted for a series of lectures on business law at MIT and, rather than criticizing social legislation designed to help workers and unions, as he had planned, he defended them instead. “Those talks at the Tech marked an epoch in my own career,” Brandeis recalled.42 (The notes of Brandeis’s MIT lectures themselves, however, suggest that he scarcely mentioned the Homestead crisis, so he may have increased its significance in retrospect.)⁴³ Rejecting both radical socialism and radical laissez-faire, Brandeis came to believe that vital unions were as necessary as vital manufacturers, so that labor and capital could negotiate on equal terms. The foe of excessive capitalism was also a foe of excessive government regulation and above all relied on elevating the educational standard of workers to allow them time to think for themselves, at home and at work.

Brandeis was also influenced by the political success of the People’s Party, also known as the Populists, a coalition of Grangers, or aggrieved farmers, and Greenbacks, who demanded currency reform. He closely read muckraking attacks on plutocracy such as “The Story of a Great Monopoly,” the Atlantic Monthly’s exposé of Standard Oil, by Brandeis’s acquaintance Henry Demarest Lloyd, who called himself “the people’s attorney.”⁴⁴ As the Progressive movement gained momentum, Congress regulated the railroads with the Interstate Commerce Commission and passed the Sherman Antitrust Act to break up monopolies. After Cleveland defeated Harrison in 1892 with the help of the People’s Party, Congress passed a federal income tax in 1894. The Supreme Court would later strike down or hobble some of these early reforms. Brandeis increasingly challenged lawyers to defend the interests of the people rather than the corporations. “Instead of holding a position of independence, between the wealthy and the people, prepared to curb the excesses of either, able lawyers have, to a large extent, allowed themselves to become adjuncts of great corporations and have neglected the obligation to use their powers for the protection of the people,” he told the Harvard Ethical Society in 1905.45

Although Brandeis came to be a leader of the Progressive movement, and although others would call him “the people’s lawyer,” he saw himself as fighting for what Melvin Urofsky calls the traditional view of the relationship between the commonwealth and private businesses, in which the state defended the public interest, financial probity, and the accurate valuation of corporate property. By the turn of the century, however, this view was under siege by the modern view, championed by Wall Street bankers, that saw stock as a commodity that investors bought at their own risk. According to this view, widespread in the Gilded Age, the state had no role in regulating corporations beyond preventing outright fraud.⁴⁶

Brandeis cast himself as “counsel to the situation,” a kind of Jeffersonian McKinsey consultant, representing the interests of both labor and management. Immersing himself in the facts, he attempted to identify what both sides wanted and to propose creative solutions that balanced all of the interests concerned.⁴⁷ (Later, during his confirmation hearings for the Supreme Court, critics charged him with conflict of interest for representing both sides; in the American Bar Association and elsewhere, debate continues about whether Brandeis acted ethically).⁴⁸ Still, Brandeis’s clients valued him for using facts to solve problems. In 1902, for example, William H. McElwain, the head of a large New England shoe-making company, asked Brandeis’s help in persuading his workers to accept a cut in wages without going on strike. Although McElwain prided himself on paying his workers well, Brandeis discovered they were laid off during slow periods and, over the course of a year, made less than a living wage. By persuading McElwain to reorganize his business so he could plan ahead rather than accepting rush orders, Brandeis was able to guarantee the workers around three hundred days of a work a year.49 The reform fueled his lifelong belief that “regularity of employment” was a key component of industrial democracy and economic opportunity.

At the same time, Brandeis managed to do well by doing good: he earned his first million by frugal living and investing in government or municipal bonds rather than stocks, which he considered a form of legalized gambling. He chastised his brother Alfred for buying stocks—“I feel very sure that unser eins [our kind of people] ought not to buy and sell stocks. We don’t know much about the business—and beware of people who think they do.”⁵⁰ Consistent with his philosophy that people should only assume risks they understand, he continued: “[D]on’t try to make your money out of investments. Make it out of your business. Of that you understand as much as anybody.”⁵¹

Brandeis sought financial independence in order to achieve spiritual independence—providing for his family and investing his extra time and income in the public causes that his parents and upbringing had inspired him to champion. He resolved to give an hour a day of his time to pro bono legal activity, and in 1905 he told Edward Filene, the civic-minded Boston merchant who owned Filene’s Department Store, that he eventually hoped to give half his time.⁵² “Some men buy diamonds and other works of art; others delight in automobiles and yachts,” he told a reporter in 1911. “My luxury is to invest my surplus effort, beyond that required for the proper support of my family, to the pleasure of taking up a problem and solving, or helping to solve, it for the people without receiving any compensation.”53 He insisted in another interview that, although he believed in property rights, courts were wrong to view them as an end in themselves. “I don’t want money or property most,” he declared. “I want to be free.”⁵⁴

Brandeis’s first crusade against public corruption came in 1904 when he attacked the planned reorganization of the Boston gas system. Under a proposed merger, eight Boston gas companies proposed to consolidate their assets and to raise rates. Brandeis, representing the Public Franchise League of Boston, navigated between conservatives, who wanted as much consolidation and profit as possible, even at the cost of buying off regulators, and reformers, who preferred to take over the utilities under municipal ownership. He persuaded the Boston legislature and the executives of the aptly named Boston Consolidated Gas Company to adopt a “sliding scale” of rates that allowed the company to raise dividends in exchange for lower rates.⁵⁵ Brandeis’s sliding scale reduced the price of gas from 90¢ to 80¢ within a year and resulted in higher dividends and public savings of up to $800,000. The greatest benefit, Brandeis wrote in an essay called “How Boston Solved the Gas Problem,” was that “the officers and employees of the gas company now devote themselves strictly to the business of making and distributing gas, instead of . . . in lobbying and political intrigue.”

Concluding that “neither private nor public ownership” of public utilities “is wholly satisfactory,” he praised the moderate compromise as “a partnership between the public and the stockholders of the gas company—a partnership in which the public will secure an ever-increasing share of the profits of the business.”⁵⁶ For him, the price of gas was less important than fairness both to investors, who deserved a reasonable rate of return, and consumers, who deserved reasonable prices. Denouncing his opponents on the left and the right as “fanatics” who were “as ready to do injustice to capital as the capitalists have been ready to do injustice to the people,” Brandeis wrote to his brother Alfred, “I consider this a most important step in public economics & government—an alternative for municipal ownership, which will keep the Gas Co. out of politics.”57 In other words, Brandeis advocated what he would call “regulated competition” as an alternative to government takeover of the utilities or to unregulated monopolies, both of which he abhorred. He said repeatedly that he wanted to keep business out of government and government out of business.

In 1905, Brandeis began to collect his ideas about “Industrial-Cooperation” in an address to the Filene Cooperative Association. Founded by Edward Filene and his brother Lincoln, both of whom had taken over Filene’s Department Store from their father, William, a German Jewish immigrant, the FCA was an employees’ union based on the principle of industrial democracy, the notion that if workers could argue for better work conditions, their personal investment in the success of the business and the quality of their work would improve. (Brandeis also joined the Filene brothers in forming the Industrial League, which encouraged Boston employers to take a progressive approach to employee relations.) In his speech, Brandeis praised the members of the FCA for “aiding in the solution of the greatest problem which is before the American people in this generation—the problem of reconciling our industrial system with the political democracy in which we live.” Brandeis identified three preconditions for the “self-government” that he believed to be as essential in industry as in politics. Workers had to be “master of themselves”; “they must work with and for others, for the institution of which they are part”; and, above all, “they must think.” He continued, “Democracy is only possible, industrial democracy, among people who think; among people who are above the average intelligence.” But he stressed that “intelligence is not a gift that merely comes. It is a gift men make and women make for themselves. It is earned, and it is earned by effort.”58

This strenuous notion of industrial and political democracy—based on the idea that workers and citizens had an obligation to educate themselves to be capable of self-government—suffused Brandeis’s thinking about the Constitution as well as the workplace. In a 1913 interview, “Efficiency and Social Ideals,” Brandeis declared that “in order to live men must have the opportunity of developing their faculties; and they must live under conditions in which their faculties may develop naturally and healthily.”⁵⁹ That resonant phrase “develop their faculties” would reemerge more than two decades later in Brandeis’s greatest Supreme Court opinion about free speech, in which he declared that “the final end of the State was to make men free to develop their faculties.”⁶⁰ Brandeis’s faith in the duty of education for self-government was vindicated in 1910 when he represented immigrant garment workers during a strike in New York City. Both the workers and management involved in the strike were Russian Jews, and Brandeis later recalled how impressed he had been by the intellectualism, idealism, and empathy of the immigrant Jewish workers. The experience gave him respect for their support for Zionism and their concerns about European anti-Semitism.⁶¹ It also helped convert Brandeis to the Zionist cause.

On the industrial level, Brandeis maintained, “men and women must have leisure, which the Athenians called ‘freedom’ or liberty.”⁶² (He issued his statement in November 1913, just after reading Alfred Zimmern’s Greek Commonwealth.) And this leisure could be achieved by the “abolition of child labor, shorter hours of labor, and regular days of rest” as well as greater earnings. Moreover, “these demands for shorter working time, for higher earnings and for better conditions cannot conceivably be met unless the productivity of man is increased.”63 This was one reason Brandeis became an enthusiastic promoter of Taylorism, or scientific management to maximize efficiency in the workplace. Brandeis discovered scientific management after reading Frederick Taylor’s 1903 paper “Shop Management.”⁶⁴ Taylor set out to use scientific techniques to determine the best time and manner to perform any task in the production process. The idea appealed to Brandeis’s notion of bringing both sides in labor disputes together for face-to-face discussions to iron out their differences; scientific management promised the efficiency and prosperity that could achieve this goal.⁶⁵ Unlike Taylor, however, who insisted on a set of rigid procedures to achieve efficiency, such as the elimination of guesswork by workers, Brandeis embraced a more humanistic approach to scientific management. In determining the proper time to perform a task, he insisted that “representatives of the workers ought surely to have a voice.”⁶⁶ He went on to set out a vision of scientific management, negotiated by unions and management, that he believed would create better citizens as well as better workers: “Scientific management does not mean making men work harder. Its every effort is to make them work less hard; to accomplish more by the same amount of effort, and to eliminate all unnecessary motions; to educate them so as to make them more effective; to give special assistance to those who when entering upon their work are most in need of assistance, because they are least competent.”⁶⁷

Brandeis made national headlines in a 1910 hearing at the Waldorf-Astoria before the Interstate Commerce Commission by insisting that the railroads, by adopting scientific management techniques, could save “a million dollars a day”!⁶⁸ (Some railroads, deciding to challenge Brandeis, adopted scientific management and did indeed save millions.) But Brandeis did not believe that most corporations would voluntarily adopt scientific management on their own. To guarantee industrial democracy, he insisted, the power of employers had to be countered by the power of unions. Testifying before Congress on industrial relations in 1915, he noted “the contrast between our political liberty and our industrial absolutism.” Although in politics “every male has his voice and vote,” in the workplace “the individual employee has no effective voice or vote” and “the result, in the cases of these large corporations, may be to develop a benevolent absolutism.”69

Brandeis recognized the importance of convincing workers that his humanistic vision of Taylorism was in their interest. “Those who undertake to apply the truths which Taylor disclosed must remember that in a democracy it is not sufficient to have discovered an industrial truth, or even the whole truth. Such truth can rule only when accompanied by the consent of men,” he wrote in Business—A Profession, the collection of essays he published in 1914. Calling the hostility of labor to scientific management a “misunderstanding,” he said that labor had to be convinced that “industrial truths” are consistent with “human truths,” promising that “the greater productivity attained [is] clearly consistent with the health of the body, the mind, and the soul of the worker . . . with industrial freedom . . . [and with] greater joy in work, and generally in living.”⁷⁰ In the end, however, unions remained suspicious of, or actively hostile to, the scientific management that Brandeis advocated, fearing that increased efficiency would result in layoffs.⁷¹ For this reason Brandeis’s idealistic embrace of scientific management has been criticized by modern scholars, who suggest that his fixation on rationality, logic, individual fulfillment of workers, and altruistic collaboration between management and unions blinded him to the reality of industrial politics.⁷²

Brandeis anticipated, however, that unions might not be powerful enough to bring about industrial democracy on their own. What “makes the great corporation so dangerous” is the unchecked power it possesses, he testified.⁷³ Applying constitutional principles to industrial challenges, Brandeis insisted: “I think all of our human experience shows that no one with absolute power can be trusted to give it up even in part. That has been the experience with political absolutism; it must prove the same with industrial absolutism.”74 Anticipating his concern with “the curse of bigness,” he insisted that the state might have to break up large corporations—imposing “a limit upon the size of corporate units”⁷⁵—in order to guarantee industrial democracy: “Size may become such a danger in its results to the community that the community may have to set limits.”⁷⁶

In Brandeis’s view, the various remedies for industrial unrest he endorsed—including scientific management, arbitration, mediation and conciliation, profit sharing, and the minimum wage—were subsidiary to the broader goal of “industrial democracy,” which he defined as a system that gave the worker “not only a voice, but a vote; not merely a right to be heard, but a position through which labor may participate in management.”⁷⁷ Concerned that bankers who served as directors of more than one large corporation didn’t have time to master the facts required for understanding each of the businesses they oversaw, Brandeis believed that scientific management would make employers more invested in their employees and more willing to guarantee regularity of employment.⁷⁸

Brandeis’s concern with regularity of employment, the curse of bigness, and industrial democracy culminated in a series of public crusades following his attack on the consolidation of the Boston gas companies. In 1906, he organized the Massachusetts Savings Bank Insurance League to make life insurance more like a savings bank investment. Brandeis identified an evil—the exploitation of poor workers by rapacious insurance companies who sold policies at usurious prices—and a pragmatic, small-scale, legislative solution—selling insurance at fair prices through savings banks—that avoided heavy-handed federal regulation. Companies like the Equitable Life Assurance Company of New York Life provoked alarm by the corrupt behavior and lavish spending of their executives, who risked what Brandeis called the “quick capital” of policyholders by investing in unstable rail and shipping monopolies controlled by financiers such as Brandeis’s nemesis, J. P. Morgan. To court the life insurance executives, Morgan and his cronies put them on the boards of directors of the railroad companies in which they were investing,79 and an investigation by the New York State legislature found widespread abuses by insurance executives, including corrupt campaign contributions and falsified books.

Brandeis contrasted the risky behavior of the insurance companies with the stability of locally controlled savings banks, which were better capitalized and able to guarantee continued coverage even if workers missed insurance payments. Rejecting the uniform federal regulations that the insurance companies sought because they thought its one-size-fits-all approach would be easier to obey, Brandeis persuaded the Massachusetts legislature to pass a state regulation in 1907 by which savings banks sold life insurance to workers at rates they could afford.⁸⁰ The Massachusetts law became a model for life insurance regulation in New York, and Massachusetts Savings Bank Life Insurance celebrated its centennial in 2007, surviving recent financial crises because of conservative investments and strict regulations.⁸¹ Brandeis considered the result “a perfect reform.”⁸²

The same year, Brandeis took on a transportation monopoly in New England. When the New Haven Railroad, once again controlled by J. P. Morgan, tried to buy one of its competitors, the Boston and Maine lines, public criticism in Massachusetts focused on the indignity of New York financiers controlling a local trolley company. Brandeis focused instead on the dangers of monopoly and the financial weakness of the New Haven line. Viewing the battle in characteristically moralistic terms, Brandeis wrote to his brother Alfred: “The enemy is still worrying us. . . . The merger is troublesome. . . . Our business-men fail to grasp to [sic] the evils of monopoly and are cowards besides. If we get time enough we may enlighten them, but it is too hot for much education.”83 Brandeis objected to the merger on the grounds that it would create a monopoly too large to be managed efficiently, with corresponding “political dangers surrounding a monster corporation controlling all transportation facilities of New England.” As he wrote in a 1908 address, “The New England Transportation Monopoly”: “For every business concern there must be a limit of greatest efficiency. . . . The disadvantages attendant upon size may outweigh the advantages. Man’s works have outgrown the capacity of the individual man. . . . Any transportation system which is called upon not merely to operate, but to develop its facilities, makes heavy demands upon its executive officers for initiative and for the exercise of sound judgment.”⁸⁴

Brandeis’s conclusion about the dangers of size was both political and moral: “There is no way in which to safeguard people from despotism except to prevent despotism. There is no way to safeguard the people from the evils of a private transportation monopoly except to prevent the monopoly. The objections to despotism and to monopoly are fundamental in human nature. They rest upon the innate and ineradicable selfishness of man. They rest upon the fact that absolute power inevitably leads to abuse.”⁸⁵ In the end, the Massachusetts legislature and governor approved the merger in the face of intense lobbying. (“Amidst innumerable broken promises of support we got unmercifully licked but it took all the power of the Republican machine & of the Bankers’ money to do it, and I am well content with the fight made,” Brandeis wrote to Alfred.)⁸⁶ Eventually, however, the New Haven line collapsed, thanks to the profligate borrowing of its head, Charles Sanger Mellen, who was forced to resign in 1913.⁸⁷

In January 1908, Brandeis argued before the Supreme Court the landmark case of Muller v. Oregon.⁸⁸ Three years earlier, in the landmark Lochner case, the court had struck down New York’s law setting maximum hours for male bakers on the grounds that it interfered with the employers’ freedom of contract.89 In Muller, however, Brandeis persuaded the court to uphold a similar law setting maximum hours for women. And he did so with a pioneering and exhaustive compilation of facts and “sociological” data. With the help of his sister-in-law, Josephine Goldmark, he amassed more than one hundred pages of American and European labor studies showing that long working hours affected the health, safety, and morals of women.⁹⁰ The Supreme Court unanimously upheld the law, in an opinion that sounds paternalistic today. “That woman’s physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious,” Justice Brewer wrote for the court. “[H]istory discloses the fact that woman has always been dependent upon man.”⁹¹ Brewer also took the unusual step of acknowledging Brandeis’s influence in his opinion. “In the brief filed by Mr. Louis D. Brandeis for the defendant in error is a very copious collection of all these matters,” he wrote, singling out Brandeis’s data about “the course of legislation, as well as expressions of opinion from other than judicial sources.” And the brief, which emphasized facts rather than legal citations, became a model for the so-called Brandeis brief, which urges judges to immerse themselves in the factual background of a case. The brief influenced Thurgood Marshall’s brief in Brown v. Board of Education, which persuaded the Supreme Court to cite hotly contested sociological data about the effects of segregation on African American schoolchildren.⁹²

Brandeis’s brief in Muller began with a list of laws passed by twenty U.S. states and “the leading countries of Europe” restricting the working hours of women. It then included a discussion of “the world’s experience upon which the legislation limiting the hours of labor for women is based,” ranging from a report from a British physician about the physical differences between men and women to an 1895 report of the German Imperial Factory Inspectors.93 Brandeis offered another defense of progressive economic legislation in a 1915 brief in a Supreme Court case called Stettler v. O’Hara, where the court upheld, by a 4–4 vote, Oregon’s minimum wage law.⁹⁴ (Brandeis, by then on the court, did not participate.) Published as an essay entitled “The Constitution and the Minimum Wage,” Brandeis gave us a sense of the rhetorical approach he would refine in his Supreme Court opinions, first presenting the justifications that led the Oregon legislature to pass the law; then surveying the exhaustive data that the legislature considered in reaching its conclusions; then presenting still more evidence (“three hundred and sixty-nine extracts”) from outside the record; and then asking whether the legislature was unreasonable to reach its conclusion: “Does that seem a revolutionary doctrine? Does it seem revolutionary for the legislature of Oregon to pass a minimum-wage law when it knows the conditions in Oregon to be such that degeneration of the people, and heavy burdens upon the taxpayer and upon the industry of the commonwealth, must necessarily result if women are permitted to continue to be employed at less than living-wages? The Supreme Court of Oregon, likewise knowing something of local conditions, held that it was not.”⁹⁵

Brandeis then performed a rhetorical arabesque, suggesting that although the Oregon legislature was entirely correct in passing a minimum wage law, judges should uphold the law unless they concluded that the legislature was completely irrational.

I conceive the only question before the court to be this: Is this particular restriction upon the liberty of the individual one which can be said to be arbitrary, to have no relation to the ends sought to be accomplished? Whether or not it is arbitrary, whether it is reasonable, must be determined largely by results where it has been tried out. Can this court say that the legislature in Oregon, knowing local conditions in Oregon, supported by the Supreme Court of Oregon (supposed also to have some special knowledge of local conditions in Oregon), was so absolutely and inexcusably mistaken in their belief that the evils exist and that the measures proposed would lessen those evils, as to justify this court in holding the restrictions upon the liberty of contract involved cannot be permitted?96

Brandeis concluded with an idea that he would later develop on the Supreme Court—the idea of giving the states wide latitude to experiment as “laboratories of democracy.” He wrote: “When we know that the evil exists which it is sought to remedy, the legislature must be given latitude in experimentation.⁹⁷ . . . Nothing could be more revolutionary than to close the door to social experimentation. The whole subject of women’s entry into industry is an experiment. And surely the federal constitution—itself perhaps the greatest of human experiments—does not prohibit such modest attempts as the women’s minimum wage act to reconcile the existing industrial system with our striving for social justice and the preservation of the race.”⁹⁸ Despite the jarring note of eugenics in the final clause, the brief reminds us that for Brandeis, a commitment to judicial restraint was fused with a passionate devotion to the moral correctness of the laws he defended.

For David Riesman, the only one of Brandeis’s law clerks who expressed criticism of Brandeis after the clerkship,⁹⁹ Brandeis’s moral commitments, including his devotion to states’ rights, trumped his devotion to the facts. In a 1996 letter, Riesman wrote to me that Brandeis would have been “horrified” by the Supreme Court decision striking down the Virginia Military Institute’s all-male admissions policy because “it is hard to overstate Justice Brandeis’s dedication to states’ rights.” Riesman recalled that when he was Brandeis’s clerk in the 1935–36 court term, the first case he worked on involved an Oregon law requiring berry boxes to be of a specified size and shape. As Riesman recalled, “Justice Brandeis sent me in characteristic ‘Brandeis Brief’ fashion to find out what lay behind the law. I went to the Interstate Commerce Commission, and to the railroads. I quickly found that the Oregon law had been passed to keep out berry boxes made from California redwoods, something clearly understood at the ICC and also by the commercial interests, railroads and box makers, involved.” Riesman reported all this to Justice Brandeis, emphasizing that the California redwood boxes were clearly superior to the Oregon boxes, injuring fewer berries and carrying more.

To Riesman’s disappointment, Brandeis wrote an opinion for a unanimous court upholding the protectionist Oregon law on the hypothetical grounds that the shape of the box might better preserve the berries and help consumers estimate their quality.100 “Brandeis’s political aim was to sustain states’ rights as against the federal government,”¹⁰¹ Riesman wrote, still frustrated sixty years later that the justice had ignored his factual investigation. A more charitable way of putting the same point is the one Brandeis expressed in his Brandeis briefs: even if state legislators pass laws for protectionist motives that sometimes clash with their stated public objectives, judicial deference to state economic experiments is such an overriding value that judges should uphold them unless the legislators are “absolutely and inexcusably” mistaken in their beliefs and the laws “have no relation to the ends sought to be accomplished.”

During this busy period, which included Supreme Court arguments and the fights against the New Haven Railroad and Boston gas companies, Brandeis continued to make time for travel and exercise. Alice’s health didn’t allow her to travel with him: throughout the early years of their marriage, she suffered from exhaustion and required periods of recovery in rest homes. Brandeis took a cross-country trip with his friend Herbert White that brought them over the Rockies through Wyoming and Nevada to California. He wrote to Alice, “DEAREST: We spent the night at Pasadena, amidst date palms and pepper and joyous flowers.” Still, in the Athenian spirit of leisure, there was always time set aside for instruction as well as amusement: “The sun beats down, as it should in a desert. . . . I am learning a great deal of geography and much is made real of which we have vaguely heard.”102

Brandeis’s public crusades catapulted him into politics and contributed to a dramatic and consequential split in the Republican Party that would help decide the election of 1912. Brandeis was initially impressed with both Theodore Roosevelt and his handpicked successor William Howard Taft. He visited Roosevelt in 1908 and wrote to his brother that the president “impressed me most favorably in every way—manners included.”¹⁰³ Brandeis added that “[Roosevelt] is a great man” and his recent radical speech “expressed just my sentiments” in urging Congress to regulate the railroads, strengthen the Sherman Antitrust Act, and favor labor over “predatory wealth.”¹⁰⁴ Brandeis would go on in November to vote for Taft. “Taft is admirably qualified for the position & doubtless will—if he lives—prove a fine President, rather of the Cleveland type,” he wrote to Alfred, “but I fear the Republican Party will be less manageable than under Roosevelt & that we shall see much of the moneybags we abhor.”¹⁰⁵

Brandeis’s fears about Taft were soon vindicated. In 1910, Collier’s magazine asked Brandeis to become involved in the Pinchot-Ballinger affair, which began as a fight over environmental policy, a topic that deeply interested Brandeis. With his Jeffersonian idealization of the farmer and agrarian democracy, Brandeis was an early environmentalist. He wanted the federal government, rather than the investment bankers, to oversee the development of virgin land in places like Alaska to ensure that profits would be retained by the people rather than the bankers and “that the opportunities of earnings of the settlers in Alaska will be the most liberal conceivable.” He suggested to Senator Robert La Follette the following Progressive slogan:

Alaska; the land of Opportunity.

Develop it by the People, for the people.

Do not let it be exploited by the Capitalists,

for the Capitalists.106

Brandeis supported Roosevelt’s fight for America’s natural resources, which Roosevelt called the most important national issue aside from war. “Conservation is a great moral issue for it involves the patriotic duty of insuring the safety and continuance of the nation,” Roosevelt declared in a 1910 speech, “The New Nationalism.”¹⁰⁷ Still, Roosevelt’s conservation effort, led by deputies such as the chief forester at the Department of Agriculture, Gifford Pinchot, differed from that of modern environmentalists: he aspired to allow experts to administer land development in the public interest.¹⁰⁸ But when William Howard Taft succeeded Roosevelt in 1909, he replaced Roosevelt’s conservation-minded secretary of the interior, James R. Garfield, with Richard A. Ballinger, who had defended corporations in suits involving land use but who also wanted to allow land development by small entrepreneurs. Pinchot, a whistleblower, was concerned that Roosevelt’s pro-environment policies would be repudiated, a fear he considered vindicated when Ballinger put up for sale coal deposits in Alaska that Roosevelt had protected. The charge was that the government was giving away the valuable Alaskan land to a syndicate of investment bankers headed by Brandeis’s old enemy, J. P. Morgan. An interior official named Louis Glavis suspected that the sale involved breaking the law and presented formal charges against Ballinger to President Taft. After conferring with Ballinger and the attorney general, George W. Wickersham, Taft fired Glavis and urged Pinchot not to take up his case. Pinchot resisted and Collier’s magazine then published Glavis’s report as a cover story with the headline “The Whitewashing of Ballinger.”109 In response to national demands for an investigation, Congress appointed six senators and six representatives to a joint investigating committee, and Collier’s hired Brandeis as counsel for Pinchot and Glavis for a fee of $25,000.¹¹⁰

The climactic moment in the Pinchot-Ballinger hearings came when Brandeis, during a cross-examination, revealed that Wickersham’s report, which Taft said had persuaded him to clear Ballinger, had been backdated by the attorney general to a date before the president’s interview with his secretary of the interior. The goal was to give the impression that Taft had made his decision after reviewing the evidence. As was usual in Washington, the cover-up was worse than the crime: the Justice Department could have admitted to the backdating but instead lied about it. In April, Brandeis wrote to his wife: “Yesterday was a terrible day. I almost felt like an executioner . . . it was an awful thing for Wickersham to have done & unfortunately the President (whom we have not mentioned) is as guilty as W. To date back that Attorney General’s report so as to make it appear that it was prepared before the President’s letter . . . comes pretty near giving false testimony.”¹¹¹ In the event, Taft confessed to the committee that the letter had been backdated.¹¹² Although some senators thought Brandeis’s merciless investigation went too far—and although Ballinger himself was ultimately exonerated of wrongdoing—Brandeis continued to see the battle in Manichean and moralistic terms. “There is nothing for us to do but to follow the trail of evil wherever it extends. Fiat Iustitia. In the fight against special interest we shall receive no quarter and may as well make up our minds to give none. It is a hard fight. The man with the hatchet is the only one who has a chance of winning in the end.”¹¹³

Despite his steely moralism, Brandeis was never personally vindictive: after Ballinger resigned in protest, Brandeis endorsed Taft’s chosen successor and also cleared Taft of new accusations of favoritism in Alaskan land sales after the Democratic House put him in charge of a follow-up investigation.114 But the rift between Pinchot and Taft that Brandeis helped to precipitate led to an even more dramatic rift between Taft and Roosevelt that would transform American politics. In April, as the Ballinger hearings were boiling over, Gifford Pinchot took a steamship to the Italian Riviera to meet with his patron and friend Theodore Roosevelt, who had just concluded a year-long safari in Africa. The two men concluded that Taft had betrayed Roosevelt’s progressive legacy by failing to protect the environment, to reduce tariffs, and to regulate the trusts. In particular, Taft’s removal of Pinchot hardened Roosevelt’s resolve against him.¹¹⁵ Based on the conversation with Pinchot, Roosevelt wrote an anguished letter to the progressive Republican Henry Cabot Lodge declaring that since the Taft administration had “completely twisted round the policies I advocated and acted upon,” it would be impossible for him to support Taft in the upcoming congressional elections.¹¹⁶ The result of the split in the Republican Party between Roosevelt and Taft would elect Woodrow Wilson and put Brandeis on the Supreme Court.