Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.
—William Pitt
Alger Hiss didn’t know about the rule. He was sitting in a Washington restaurant on a December afternoon in 1929, enjoying the bachelor’s luncheon his friends were giving him to celebrate his forthcoming marriage that weekend. Dick Field turned to Hiss. How did you do it, Alger? How did you get the justice to let you break the rule? A blank look came across Hiss’s face. What rule? You know, Field responded, the rule that none of the justice’s clerks can be married. At first Hiss thought that Field was kidding. When he had accepted the clerkship no one, not even the justice, had told him he could not get married. But others at the table joined in. Everyone, they said, knew that the justice did not want his clerks to be married. Fear overcame Hiss. His fiancée was at that point driving down to Washington so they could be married at his parents’ home on Maryland’s eastern shore. There was nothing left to do but to confess and throw himself on the mercy of the justice.
He raced over to the townhouse at 1720 Eye Street in Washington and went immediately to the justice’s study. Hiss stammered that he had made a grievous error, one that really could not be changed. It was too late. It was an honest mistake, and he hoped the justice would forgive him. Oliver Wendell Holmes, dressed in his usual formal morning coat and striped trousers, looked up. What was it? Hiss confessed to his forthcoming marriage. Oh, said the justice, don’t worry about that. In fact, maybe Alger should take a week off to enjoy himself. That was out of the question, the clerk responded. He would be there first thing Monday morning. Hiss left the justice’s study relieved. He had been granted a reprieve.
Others were not as fortunate. Because the justice did have a rule that none of his clerks—his “boys,” as he called them—could be married. He wanted a companion, someone who would be able to cater to his wants. Research was generally the least of his needs. He wanted someone to talk to, someone who would accompany him on car rides to tour the city. A wife would make other demands on the clerk, demands that might prevent him from responding to the justice.
So when Dean Acheson got married near the end of his student tenure at Harvard Law School, he learned that there was no possibility of a clerkship with Holmes. It was a great disappointment to Acheson. To him Holmes had been, always would be, the greatest Supreme Court justice. No one could match his insights into human nature and the law. And no one had his gift for expression. Holmes had a way with words that was simply extraordinary. Felix Frankfurter, who selected clerks for both Holmes and Brandeis, told Dean that there was an alternative. He could clerk for Brandeis. Hardly a compromise. And so in the autumn of 1919 Acheson, after performing some wartime service in Washington, reported for work at Stoneleigh Court.
Acheson was nervous at first, and the justice did little to ease the tension. He seemed distant and preoccupied. Polite but aloof. The justice did make it clear, however, that he expected vigorous analysis in the preparation of opinions. Acheson was to voice his views, even if they were critical of the justice’s work. Acheson took Brandeis at his word, and, after several months—and many discussions—the relationship began to thaw. In fact, by the end of his two-year stint with the justice, Acheson felt a closeness toward Brandeis that he had once thought impossible. “He is a person,” he wrote to Frankfurter at one point, “to whom one gets most ungodly attached, isn’t he?”1
Acheson was especially impressed, even overwhelmed on occasion, by the justice’s approach to decision-making. One case in particular stood out in his mind. The Court was considering a lower court decision, and the question was whether the lower court judge had intended to dispose of all the issues. On a first reading Acheson found the judge’s opinion ambiguous and “a perfect mess.” Acheson assumed that the judge was an “idiot.” Brandeis saw it differently. There had to be an explanation. Through painstaking study he was able almost to re-create the judge’s psychological process in writing the opinion. Brandeis determined that the second part of the opinion was written two weeks after the first part. He then proceeded to discover the law the judge had been reading during those two weeks. By the time he was finished, Brandeis had exposed the steps by which the opinion had been constructed and, with that information, was able to see that the judge had intended to dispose of all the issues. Acheson was amazed by the whole performance. The justice’s perseverance was nothing short of incredible. “what I want to know,” the clerk asked Frankfurter, “is what psychological process it is which keeps the Justice freshly on the trail when everyone else is sick of the subject and thoroughly convinced that the end has been reached. It isn’t simply a dogged resolution to keep on looking.”2
Acheson was not a passive observer in all this. On many matters he and the justice had vigorous debates in the preparation of opinions. And few matters took as much time as—or were more important than—the decisions concerning an individual’s constitutional right to free speech.
The day before he asked Congress to declare war on Germany in 1917, President Wilson summoned Frank Cobb, editor of the New York World, to the White House. The president was about to take a dramatic step, and he wanted to unburden himself with someone, a person who could appreciate the consequences of what he was about to do. Once the United States entered the war, Wilson told Cobb, the world they knew would never be the same. America would be transformed by the experience. “Once lead this people into war,” he told the journalist, “and they’ll forget there ever was such a thing as tolerance. To fight you must be brutal and ruthless, and the spirit of ruthless brutality will enter into the very fibre of our national life, infecting Congress, the courts, the policeman on the beat, the man in the street.” Free speech would be one of the first things to go. The First Amendment plainly stated that Congress shall make no law abridging speech or the right to assembly. The amendment would take on a new meaning now, Wilson said. War changed everything.3
Wilson knew what he was talking about. Within months after declaring war, Congress passed an Espionage Act that severely restricted speech. The law made it a crime to do or say anything designed to interfere with the recruitment of soldiers or the prosecution of the war. Dissent, as Wilson predicted, would not be tolerated. And as the president anticipated, the intolerance would outlast the war. In 1920 A. Mitchell Palmer, Wilson’s new attorney general, arrested thousands of individuals suspected of being Communists. They were rounded up—on the streets, in their houses, wherever they could be found—and packed off to jail. It was an ironic and sad way to end Wilson’s call eight years earlier for a New Freedom. But it reflected the popular mood. The most outrageous abuses of individual freedom were not merely excused; they were encouraged. The New York State Assembly, for example, expelled five delegates because they were Socialists. No matter that they were duly elected by the people; they held views that were un-American. “It was an American vote altogether,” the New York Times said of the Assembly’s action, “a patriotic and conservative vote. An immense majority of the American people will approve and sanction the Assembly’s action.”4
Brandeis’s interest in these developments was not entirely academic. It was his daughter Susan. Her growth at law school did not entirely coincide with Louis and Alice’s expectations. She seemed disheveled, unkempt, almost slovenly in her appearance. And then there was the young man to whom she had become close. He seemed to be a radical, one of the many young people who questioned the morality of America’s participation in the war. It was especially troublesome to Brandeis because he knew that the Espionage Act and other wartime measures would come to the Court for decision. So when Susan informed him that she was thinking of joining a peace group, her father was not encouraging. He urged her to “refrain from talking or other activity in connection with any peace society. It might prove embarrassing,” he said.5 And when she wrote that her boyfriend was thinking of registering as a conscientious objector, her father advised against it.
Louis, and especially Alice, was disturbed by this turn of events. Susan was moving with the wrong people and in the wrong direction. In June 1917 she visited her father in Washington while her mother was vacationing in Boston. Louis had a frank talk with her about many things: Her appearance. Her lack of social graces. And this young man she wanted to marry. Things were happening too fast, Louis said. Perhaps it would be best to wait six months before making a commitment. Susan left without saying what she would do. Afterward Louis sent her a long letter. Like many parental communications, it was full of advice. But warmth and respect were also evident. “Your happiness and worldly development, dearest Susan, are my deep longing,” he wrote. “Whatever I can do to advance them, you may rely upon. And yet I recognize how little there is that I can do.”6
While Susan pondered her father’s advice, Louis tried to calm Alice. He reported on his conversation with Susan and the apparent lack of progress. “[S]he really does not belong to our world,” he observed. “Perhaps it is a kind of Providence leading her into another where she will fit better.” It was the usual Brandeis optimism, but there was an emotional cost. Susan was, after all, his daughter, his own flesh and blood. “There are many defects in her,” he wrote to Alice at a later point, “which are prominent and for which I grieve & the existence of which pain me.”7 But he would not interfere. It was her life, he told Alice. She would have to make her own decisions. In time Susan would more than justify her father’s confidence.
Other people could not bide their time. The government was vigorously enforcing the Espionage Act. Many people found that the slightest suggestion of disloyalty resulted in an arrest and a jail sentence. Not surprisingly, some said the law’s restrictions on speech were unconstitutional. The United States Supreme Court, however, held otherwise. And one of the first opinions expressing that viewpoint was written by Justice Holmes. That was an important factor to Brandeis. In those first years on the Court, there was no one he respected more—or was closer to—than Holmes.
In a way, the bond between the two justices was not at all predictable. Their personalities and careers stood in sharp contrast. Oliver Wendell Holmes, Jr., was the son of Dr. Oliver Wendell Holmes, a physician in Cambridge, Massachusetts, who was widely known for his poetry. Young Wendell attended Harvard College and planned to get his law degree at Harvard as well. Before he could complete his legal studies, however, he enlisted in the army. Wendell was only twenty years old, the year was 1861, and the nation was in the throes of a civil war. Wendell was a striking young man and he made a handsome soldier. None of that helped him, though. Almost every day of his service was spent in armed combat. He was wounded a few times, once very seriously. For a young man who knew only the gentility of urban life, it was a profound experience, one that he would always remember. Years later, when corresponding with friends, he would recall the anniversaries of Antietam and other battles in which he had fought. On one of their many car rides, he would take his clerks out to Arlington Cemetery to view the graves of fallen comrades. And he would remark that World War I was not nearly as bloody as “our war.”
It is not surprising, therefore, that Holmes harbored few illusions about how the real world operated. He was, almost from the beginning, cynical about law and social development. He had a low regard for the people who inhabited legislatures—”dogs,” he called them. But he knew that the majority almost always had its way. It was the way of life. Not that anyone could really change things that much. Some things just happened. If you sat on it long enough, he was fond of saying, the world would hatch.
He was also fond of women, and they no doubt found him attractive. With a tall, slim build, long, dark hair, and a full handlebar mustache, he cut an impressive figure. His interest in women did not diminish when he married Fanny Dixwell or when he got older and assumed important positions. It was said, for example, that as a United States Supreme Court justice he would spend many afternoons sipping tea with a woman other than his dedicated wife. On occasion it proved embarrassing. One afternoon tea with a woman friend was interrupted by a butler carrying a note. “Wendell,” it read, “I’m downstairs waiting for you in the carriage. Fanny.” The justice obeyed the command.
Holmes’s appeal was not confined to women. People of all kinds found him immensely attractive. He was so full of ideas, so witty. For many there was nothing more enjoyable than to spend an afternoon listening to Justice Holmes. Law professors especially sought him out, almost as a pilgrimage. One time a Brandeis clerk brought Austin Scon and Sayre MacNeil, two of his professors from Harvard, over to meet the famous Justice Holmes. The two professors gave their calling cards to the housekeeper, who then brought them up to Holmes. In due course the professors were ushered into the study. Holmes was sitting there, folding the cards back and forth. He then said, “First you shuffle and then you deal, which is Scott and which MacNeil?”8 At other times he could be almost bawdy. “I wonder,” he once observed, “if cosmically an idea is any more important than the bowels.”9
Holmes was a tough decision maker. You did what you had to. Personal sympathy for the parties was an inappropriate basis for resolving a case. You could not keep changing rules to accommodate new situations. So he did not like it when other justices in conference deviated from established legal principles and inquired whether a particular result was just. It was “the stinking sense of justice,” he would say, that undermined the proper administration of the law.10
Making decisions was relatively easy for Holmes. He had an uncanny ability to isolate and analyze basic issues quickly. At oral arguments he would take careful notes, and after a short while he would reach a conclusion. He would then take out paper and pen and, while the attorneys droned on, write letters to friends scattered across the country and world. Sometimes he would put his head on his arms and take a short nap (and once caused a stir when he awoke to discover the attorney still talking and muttered, audibly enough for everyone to hear, “Jesus Christ!”).
If Felix Frankfurter was arguing a case, it was a different story. Frankfurter adored Holmes, viewing him almost reverentially. The admiration and affection were reciprocated. Holmes recognized Frankfurter’s superior intelligence and, like Brandeis, allowed Frankfurter to select a new clerk for him every year. Holmes also found Frankfurter to be a warm, energizing personality. He enjoyed his company and, in some sense, viewed him like a son (although, when he later looked for someone to write his biography, Holmes rejected the Jewish professor as a possibility—he wanted a Yankee to do it). Once Justice McReynolds gave Frankfurter a hard time at oral argument on a law that limited women to ten hours of work. McReynolds badgered the law professor, finally snarling, “Ten hours! Ten hours! Ten! Why not four!” The law, he said, was completely arbitrary and unnecessary. Frankfurter moved toward his antagonist. “Your honor,” he said, “if by chance I may make such a hypothesis, if your physician should find that you’re eating too much meat, it isn’t necessary for him to urge you to become a vegetarian.” Holmes had been listening to the exchange intently. His reaction was immediate—and loud. “Good for you!” he shouted to Frankfurter from the bench.11
To almost anyone who thought about it, this delightful and brilliant justice, this giant of the law, appeared as secure as a man could be. And yet he often worried what people thought of him. Was his work good? Was he carrying his share of the Court’s burden? And what did the new justice, Louis Brandeis, think of him? Holmes’s clerk popped the question one day to William Sutherland, who had started clerking for Brandeis in the autumn of 1917. Why do you ask, Sutherland inquired. Because, said the Holmes clerk, my justice keeps asking me, and I want to know what I should say to him.
Within a short time, Holmes would not have to wonder. He and Brandeis would become warm and affectionate friends. They had known each other for many years, but their contact had been sporadic. Now they would spend a great deal of time together. Their relationship was a professional one, however. Although they lived only about a block from each other in those early years, they almost never saw each other socially. It may in part have been Holmes’s age. He was seventy-five when Brandeis joined the Court and, like his younger colleague, wanted to preserve his limited energies. And then there was Holmes’s wife. Fanny did not like Brandeis. It was not because of anything he had done or said—it was his religion. Everyone knew—or at least thought they knew—what Jews were like, and Fanny was concerned about “oriental” influences on her husband.12
Despite his wife’s concerns, Holmes saw Brandeis regularly. They would ride back and forth to Court together, sometimes getting out of the car to walk. If an important case was being decided, or if a Court recess had prevented them from seeing each other for a long time, Brandeis would sometimes walk over to Holmes’s townhouse for a talk. On many occasions their conversations would range far and wide. Shakespeare. Prohibition. Ancient Greece. The new president. But even if they discussed the law, Holmes could not always resist the temptation to be playful. The senior justice often made up new words to express his feelings and would, for example, praise Brandeis’s draft opinions as “sockdological.” In other instances Holmes would put the law in its proper perspective. Responding to one Brandeis draft, Holmes sent a note that read, “I drove out to the canal, where I saw two cardinals and some other birds. It was lovely there, the spring of the year again. As for your opinion, I agree.”13 Through it all, Holmes enjoyed Brandeis and found his eternal optimism particularly refreshing. “Brandeis always has left me feeling happier about the world,” the older justice once confided to the British writer and teacher Harold Laski.14
For his part, Brandeis agreed with the consensus that Holmes was a man of uncommon intelligence and insight. And he was a wonderful conversationalist, a man who could debate almost any subject, any proposition. But Holmes had a glaring weakness as a judge. He did not appreciate the importance of knowing all the facts. Facts. Brandeis had built his career on knowing the facts. It was critical to any analysis. Holmes would whip through opinions without carefully reviewing the record and all the legal arguments. Many loopholes were left in his opinions, and they generated a fair number of petitions for rehearing. That was unacceptable, Brandeis said, and Holmes should know better.
The younger justice attributed it to Holmes’s limited experience in practical affairs. Aside from a relatively short flirtation with law practice in Boston and teaching at Harvard Law School, Holmes had spent his entire professional career on the bench—first as an associate justice (and then as chief justice) on the Massachusetts Supreme Judicial Court and, starting in 1902, as an associate justice on the United States Supreme Court. For all his understanding of human nature, Brandeis would tell Frankfurter, Holmes is sometimes as innocent as a sixteen-year-old girl. His perspective would be broadened if he spent some time in the real world. “Talking with Brandeis yesterday,” Holmes reported to Laski one day in 1919, “. . . he drove a harpoon into my midriff by saying that it would be for the good of my soul to devote my next leisure to the study of some domain of fact—suggesting the textile industry, which, after reading many reports etc., I could make living to myself by a visit to [a textile mill] in Lawrence [Massachusetts].”15
It was an uphill fight for Brandeis. Holmes told other friends (but not Brandeis) that he “hated” facts—”except as pegs for generalizations.”16 Not surprisingly, he thought Brandeis’s long and detailed expositions of legislative history and other factual material entirely inappropriate in a judicial opinion. It was one thing, Holmes said, to use that approach in filing briefs as a private attorney, but judges had only to issue broad pronouncements on the law. So Brandeis would keep making suggestions and sending various studies to his friend and colleague, and Holmes would just as frequently find some excuse to avoid reading them. Once Holmes was at his townhouse during a Court recess when a box containing many government reports arrived. The justice turned to his clerk. “Brandeis wants me to read all these statistics,” he said. That was out of the question. “Son,” he told the clerk, “you read them.”17
For all their disagreement on the importance of facts, there was an affinity between the two men on many legal issues. Free speech was one of them. Both saw the necessity of speech in a democracy. They came at it from different perspectives, however. Brandeis understood the necessity of free speech from firsthand experience. If he had not had that right, many people could have silenced his criticism of the New Haven railroad, of the insurance industry, of a United States president. The right to speak out had given him a power, an opportunity to effect change. Holmes had no comparable experiences. His faith in the First Amendment was based largely on abstract reasoning—and, as time would show, qualified by his belief in rule by majority will.
In one of the first Espionage Act cases, Holmes penned an opinion for a unanimous Court explaining why the law was constitutional. To be sure, speech was protected by the First Amendment—but there were limitations. “The most stringent protection of free speech,” Holmes wrote, “would not protect a man in falsely shouting ‘fire’ in a theatre and causing a panic.” The same principle applied when Congress passed a wartime statute. “The question in every case,” Holmes said, “is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight. . . .”18
A “clear and present danger.” It sounded reasonable. Brandeis quickly accepted it as a sound test to decide the limits of free speech. So when the Court decided the Schaefer case, he applied the “clear and present danger” test to it.
Peter Schaefer and his colleagues had been convicted under the Espionage Act for distributing reprints of press reports from Germany that questioned the wisdom of American entry into the war. The pamphlets violated Section 3 of the Espionage Act, which prohibited the distribution of “false reports” designed to undermine the war effort. The items alleged to have been falsified were clearly trivial. In one case the publication had mistakenly quoted Senator La Follette as stating that the war would create “bread riots” in the United States; he had actually referred to “breadlines.” Justice Mahlon Pitney voted to let the convictions stand only because the defendants had failed to specify their objections to the alleged substantive and procedural errors. A majority of the other justices, however, overlooked that technical point and said that the convictions were proper even assuming that the defendants had preserved their right to appeal.
Brandeis felt that the majority had no reasonable basis for its decision. He and Acheson put together a dissent to explain the justice’s views. “In my opinion,” Brandeis said, “no jury acting in calmness could reasonably say that any of the publications set forth in the indictment was of such a character or was made under such circumstances as to create a clear and present danger either that they would obstruct recruiting or that they would promote the success of the enemies of the United States.” The Court’s decision was especially disturbing, he felt, because it could be used in peacetime to silence unpleasant criticism. That was no small risk. As Brandeis pointed out—and as he knew from his own battles—”an intolerant majority, swayed by passion or by fear, may be prone in the future, as it has often been in the past, to stamp as disloyal opinions with which it disagrees.”19
A week later Brandeis expressed similar concerns in the Pierce case when the Court upheld convictions of Socialist Party members who had distributed pamphlets saying that Americans were fighting to protect the economic interest of financiers like J.P. Morgan. It was difficult to find this allegation false or dangerous, Brandeis observed, since many congressmen and senators had made similar complaints in debating the war resolution. It was not only a question of the right result here; Brandeis was also concerned about the broader implications of the Court’s decision. “The fundamental right of free men to strive for better conditions through new legislation and new institutions will not be preserved,” he concluded, “if efforts to secure it by argument to fellow citizens may be construed as criminal incitement to disobey the existing law. . . .”20
In both of these cases Holmes supported Brandeis’s dissents. After all, the younger justice was simply applying the “clear and present danger” test formulated by Holmes. They parted company, however, when Brandeis expressed his view about its application in peacetime.
Generally Brandeis required considerable time to analyze issues, especially complex ones. Unlike Holmes, he did not, really could not, make an instant analysis of a case while listening to oral argument. In first supporting the “clear and present danger” test, Brandeis accepted it as a necessary qualification to the First Amendment, one that would restrict speech both in peace and in war. But in writing his Schaefer and Pierce dissents, he decided that restrictions during war would be entirely inappropriate during peace. It was one thing to prevent speech that might undermine the nation’s defense; it was quite another to prevent speech when the nation’s survival was not at stake. As he told Frankfurter, during a war “all bets are off.” But not otherwise.21
His Schaefer and Pierce dissents tried to intimate the dangers of restricting speech during peacetime. Those cases were not directly on point, though. Both concerned violations of the Espionage Act during the war. The case of Joseph Gilbert was different.
Gilbert was a member of the Non-Partisan League who had been convicted under a Minnesota law that prohibited the teaching or advocating of pacifism. Specifically, the law prevented people from arguing that men should not enlist in the armed forces or aid in carrying out a war. The law was not a war measure; it applied even if the country were at peace with the world.
Brandeis found the law offensive. This was not a statute to protect the nation’s defense. It did not relate to immediate dangers. It was simply a restriction on speech that the state found unacceptable. For Brandeis, it was the beginning of an encroachment on speech that criticized government policy and advocated reform.
There were two specific bases on which he thought the law could be overturned. One was the supremacy clause, a provision in the Constitution that enabled federal law to supersede a conflicting state law. Waging war was the business of the federal government, not of the individual states. Moreover, Congress had in fact passed the Espionage Act, an action that implicitly foreclosed state laws covering the same subject. The second possible ground for reversing Gilbert’s conviction was found in the Fourteenth Amendment to the Constitution, which prohibited the states from depriving citizens of life, liberty, or property without “due process of law.” It could be argued that Minnesota’s statute—by being applicable in peacetime as well as in wartime—was unreasonable and therefore resulted in a deprivation of Gilbert’s liberty without due process.
Acheson told Brandeis that neither argument was valid. There was no usurpation of federal authority here, he observed. The state law did not in any way interfere with the conduct of war or the implementation of the Espionage Act. Indeed, said Acheson, the Minnesota statute could be tied to legitimate state functions. The state militia was supported by state taxes, and perhaps this law was designed to prevent any obstruction with the operations of that militia. As for the Fourteenth Amendment, Acheson felt that there was no help for Gilbert there. His attorney had not clearly raised the argument, and it would be inappropriate for the Supreme Court to make it for him. Besides, said Acheson, Brandeis believed—and in his earlier opinions had stated—that the Court should not evaluate the reasonableness of state laws. As he had argued in Muller v. Oregon, the courts should overturn a state law only if there was no possible reasonable basis for it.
Brandeis apparently found Acheson’s arguments on the Fourteenth Amendment persuasive. But he was not convinced on the other point. You simply could not get around the fact that the state law restricted speech, and in Brandeis’s view that restriction was justified only if the federal government deemed it necessary to safeguard the conduct of war. The state law went well beyond that interest. It could even prevent parents from teaching their children to believe in pacifism.
In conference, the justices had voted to sustain Gilbert’s conviction, and Justice Joseph McKenna had been assigned the opinion. He was a devout Catholic who had once considered becoming a priest. Instead he became a politician, and one could not help but suspect that his career had some divine assistance. He was not very bright, but he was personable, and in politics that can carry one a long way. He became a congressman from California and then a close friend of President William McKinley’s, a friendship that led to his appointment as the United States attorney general and, in January 1898, an associate justice of the United States Supreme Court. McKenna’s brethren on the Court quickly noticed that their newest member lacked brilliance. Efforts were made to be careful in the assignment of opinions to him. More than once his work was so inferior that the chief justice had to reassign it.
McKenna, then, was not a person likely to respond to a logical argument that he should ask the brethren to reverse a decision reached at conference. Nonetheless, Brandeis sent his colleague a memorandum on the Gilbert case, arguing that the state law should be overturned because it usurped federal functions and incidentally infringed on individuals’ right to speech. Predictably, McKenna was not moved. Within a short time the senior justice returned the memorandum with thanks and a polite rejection. “You think the State has no power,” McKenna wrote to Brandeis, “it being excluded by the power in Congress or superseded by the Espionage Act. I think otherwise and the conference resolved otherwise. You think there is interference with the freedom of speech: I think, first, that it is doubtful if we have any jurisdiction to so consider, and second, if we have, I do not think the statute has the breadth you attribute to it.”
Brandeis could not have expected much different from McKenna. Holmes was another story. Holmes did not share McKenna’s view of the Espionage Act and the First Amendment. But he accepted the state’s right to adopt whatever laws it chose unless the Constitution clearly prohibited it. And he could not reach that conclusion here. He therefore told Brandeis that his proposed opinion went “too far.” So when the decision was handed down, Brandeis dissented alone. As expected, he relied on the usurpation of federal functions. He also could not resist a reference to the Fourteenth Amendment. In recent cases the Court had relied on the amendment in overturning state statutes that restricted the conduct of commercial business. Such restrictions, said the Court, infringed on the individual’s liberty to hold property, a right protected by the Fourteenth Amendment’s due process clause. In that context, Brandeis observed, he doubted that the state could restrict what a person could teach. “I cannot believe,” his dissent concluded, “that the liberty guaranteed by the Fourteenth Amendment includes only liberty to acquire and to enjoy property.”22
Writing all these dissents was not an empty exercise for Brandeis. Perhaps they would be read by lawyers, students, government officials and others interested in public policy. “We may be able to fill the people with shame after the passion cools,” he told Acheson. “The only hope is the people; you cannot educate the Court.”23
James Landis had a gift. Most observers agreed that he was unusually intelligent, insightful, and articulate. Certainly Felix Frankfurter thought so. He asked Brandeis if Landis’s clerkship with the justice could be delayed a year so that Landis could complete some research projects for the Harvard law professor. Brandeis agreed, and Landis’s clerkship began in the autumn of 1925. It was, Landis later recalled, a wonderful experience, one of the best of his life. After the clerkship was over, Landis kept in regular touch with the justice. And Brandeis had much reason to be proud of this protegé. He returned to Harvard as a law professor, and, in the early 1930s he was brought back to Washington to sit on the Federal Trade Commission and then to chair the Securities and Exchange Commission. In 1937 Harvard Law School wanted him once again, this time as the dean of the school. It was quite an honor for a man of thirty-eight, and Landis was sure that Justice Brandeis would be proud of him. Landis soon reported the news. He was going to Harvard to become dean. Brandeis just looked at him. “You mean Harvard Law School?” “Yes,” Landis replied. “Why do you want to take that?” the justice asked. “Well,” said a surprised Landis, “it’s a great promotion.” Brandeis did not agree. “Anybody can be a good Dean of the Harvard Law School,” he said. “Why not take some smaller school and do something with it?” It was a good thought perhaps, but the former clerk accepted Harvard’s offer.24
Landis went on to become one of the foremost authorities on legislation and administrative law. He also developed a close friendship with Joseph P. Kennedy, and in 1960 President-elect John F. Kennedy asked Landis to examine federal agencies and propose measures to improve their efficiency. Landis did the job, as he did every job, brilliantly. But then the gift went sour. His mental health declined rapidly. He did not file income tax returns, and the Kennedy Justice Department felt compelled to prosecute him. It was an agonizing decision for the Kennedys, and the story did not have a happy ending. James Landis was found dead in his swimming pool in 1962, the victim of an apparent suicide.
It was a turn of events that no one could have predicted during those bright days of the Brandeis clerkship. Then Landis was vigorous in mind and spirit. He and the justice worked long and hard together, discussing cases, arguing about opinions. And one they debated at length involved Charles E. Ruthenberg.
Ruthenberg had been a member of the Socialist Party, and between 1909 and 1919 he ran, unsuccessfully, for various elective offices. In 1919 he joined the Communist Party. In 1922 he and fellow communists held a meeting in a desolate, wooded area of Michigan. Their secrecy was not happenstance. Ever since Attorney General Palmer’s “Red Scare” in 1920, people with Ruthenberg’s political views were often careful about what they said in public. Nonetheless, Ruthenberg and his colleagues were arrested and convicted of violating a Michigan law that prohibited the teaching of “criminal syndicalism”—an awkward term that referred to aberrant political philosophies like communism.
Brandeis found the state law and the whole sequence of events inexcusable. The nation was now at peace. There was no allegation that Ruthenberg’s meeting threatened any immediate danger to the country or any individual. The group was of one mind politically, so there was no innocent person whose mind could be “corrupted.” They had met far from civilization, and the group had not said or done anything to indicate that violence was imminent. The meeting was nothing more than an opportunity for these people to exchange views without fear of interruption by the authorities. To Brandeis their subsequent conviction was another illustration of the dangers he spoke of in the Gilbert case.
Unhappily, the conference concluded otherwise, and Brandeis felt obligated to issue another dissent. He prepared drafts, and Landis worked on them over the summer of 1926, exchanging frequent notes with the justice, who was then vacationing on Cape Cod. It was building into a forceful opinion, one, Landis assured Brandeis, that the next clerk, Robert Page, could help complete. Other forces were at work, however, and the dissent never made it into print. Ruthenberg died before the opinion could be completed, and the case was dismissed as moot. The work was not in vain, though. Another case was pending before the Court, one remarkably similar to Ruthenberg’s.
Anita Whitney, a Wellesley College graduate, was about sixty years old. In 1919 she joined the Communist Party and attended a party convention in California. There, according to Page’s memo to the justice, the convention “sang a silly song about joining the Bolshevik” and then indulged in “the usual talk about the coming struggle against capitalism. . . .” Whitney was subsequently convicted of violating California’s criminal syndicalism statute, which had been adopted that year. From his research Page determined that the law was a response to criminal acts, some of them violent, that had been committed by members of the radical International Workers of the World union. Whitney was not a member of the IWW, but that didn’t matter to the California courts. To them all radicals were the same. In any event, the legal issue was whether the IWW’s crimes created a sufficient “clear and present danger” to justify restrictions on speech. Page could not tell from the record. He therefore suggested the possibility of sending the case back for a jury trial to evaluate the nature and immediacy of the danger.25
Under Gilbert and other cases, the “clear and present danger” test was—despite Brandeis’s objection—applied to peacetime laws. But Brandeis did not entirely agree with his clerk’s analysis of how that test affected Whitney’s case. True, it was not apparent from the record whether the IWW’s activities justified the statute. But Whitney had not challenged the factual basis of the law, and it was too late for her to do so now. When a case came from a lower federal court, the United States Supreme Court could step in and correct fundamental errors even if the parties had not raised them. But the Court did not have that power over cases coming from state courts (because, theoretically, as a federal body, the Supreme Court has a greater responsibility for the performance of federal courts than it does for state courts). Since Whitney had been convicted in a California court, the Court could not help her. (Actually a majority of the justices would not have helped her even if they had the power.)
Although Brandeis could not assist Whitney personally, he decided to use her case to convey some of the thoughts he had hoped to express in the Ruthenberg dissent. Portions of that opinion were lifted and placed in the new draft. It proved to be an extremely eloquent opinion, perhaps the most forceful of Brandeis’s long tenure on the Court.
The majority opinion, written by Justice Edward Sanford, upheld Whitney’s conviction. At one point Sanford suggested that the Fourteenth Amendment did not protect speech.
Brandeis concurred in the result but not the Court’s reasoning. In a separate opinion, he explained initially that he did not believe it appropriate for the Court to examine the reasonableness of state laws. But in many decisions the Court had held otherwise. Therefore, the Court could examine the record to determine whether speech restricted by a state law did in fact pose “a clear and imminent danger.” That was no easy question, because the Court—despite all its pronouncements—had never established a standard to identify dangers that were both clear and imminent. In fixing any standard, however, it was important to understand, Brandeis said, why a state cannot ordinarily restrict speech.
“Those who won our independence,” he explained, “believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly, discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.” Of course, said Brandeis, there were risks in allowing free speech. Enemies of the state could recruit supporters. But the Founding Fathers, the justice observed, thought that it would be unwise “to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.”
In this context, said Brandeis, speech—even speech advocating violent measures—could not be restricted unless it amounted to incitement that would result in immediate action. “Those who won our independence by revolution,” the justice observed, “were not cowards. They did not fear political change. They did not exalt order at the cost of liberty.” Only the most serious dangers—risks that could not be exposed through further discussion—warranted a limitation on fundamental individual freedoms.
For all these reasons, Brandeis rejected the majority’s suggestion that the Fourteenth Amendment did not protect the rights of speech and assembly against unreasonable state action. But here there was some evidence to justify the adoption of California’s criminal syndicalism statute and the belief that criminal activities were furthered by conventions like the one attended by Whitney. Whitney did not claim or show that the legislature’s judgment had been unreasonable. Therefore, Brandeis concluded, her conviction must stand.26
Brandeis was seasoned enough to recognize that a single opinion—even a series of opinions—could not always bring about needed reforms. Certainly that was the case with respect to his Whitney opinion. Its call for some standard to measure “clear and imminent dangers” was plain. Yet decades later nothing had changed much. In a 1951 case, Supreme Court Justice Robert Jackson would say of Holmes’s test, “All agree that it means something very important, but no two seem to agree on what it is.”27 And when President Richard Nixon tried to stop the publication of the Pentagon Papers in 1971, Court members had little to rely on except their own instincts as to what was “clear” and “imminent.”
Brandeis probably could have anticipated all this ambiguity. But he was interested in concrete achievements. He was offended by state laws that restricted speech, and he thought it was equally disgraceful that the government had paid no compensation to people who had been victimized by the Palmer Raids in 1920. During the summer of 1926, when he was preparing the Ruthenberg dissent, he asked Frankfurter to consider the possibility of having someone in Congress push a bill to provide the necessary relief.
For all his charm and good intentions, Frankfurter could not satisfy this request. The times were different now. There was a new man in the White House and a new spirit in the country. Social reforms, it seemed, were at the bottom of almost everyone’s list. Other concerns motivated those in and out of government. Brandeis of course knew all this, and he was not at all pleased by it. But he knew that the day of reckoning would come.