I pledge you, I pledge myself, to a new deal for the American people.
—Franklin D. Roosevelt, accepting the 1932 Democratic Presidential nomination
Brandeis was proud of Alice Grady. She had come a long way since she first reported for work at the firm of Warren & Brandeis in 1894. It was not only her superb skills at organizing the office and satisfying the many demands of her boss. Grady had other virtues as well. And one of them was her dedication to the Savings Bank Life Insurance program, or SBLI, which Brandeis had initiated in the first decade of the twentieth century to provide wage earners with low-cost life insurance. Perhaps it was her background. She had not grown up in affluence, and she apparently understood the importance of SBLI to wage earners who had difficulty obtaining security for their families. Even before Brandeis was appointed to the Supreme Court, Grady became involved in the implementation of the program. She talked to state administrators, savings bank officials, and even the mayor of Boston. She also expended considerable effort to publicize the program. One of her more notable achievements on that front was a movie that featured Brandeis himself explaining the benefits of SBLI. Grady had the movie distributed to savings banks and civic groups in the hopes that they too would see the benefits of the program.
Brandeis watched all this with much satisfaction. After all, there could be few activities more rewarding to the community—and the individual—than savings bank insurance. So when he readied for the move to Washington in the summer of 1916, he informed his long-time secretary that she would not be going with him. The Court allowed each justice to hire only one secretary, and Brandeis had decided to fill the position with a recent law graduate to help him with research. And besides, there were more important things for Grady to do in Boston.
Grady accepted the decision, and shortly after Brandeis left, the governor appointed her deputy commissioner of SBLI in Massachusetts. Her relationship with Brandeis then moved on to a new level. There was frequent communication between them on the progress of the program. Brandeis not only gave Grady advice from his small apartment in Washington; he also provided money—for salaries, for Christmas parties for administrators, and for specific projects designed to advance the program. And he was pleased, very pleased, with the results. After the Depression struck, he never tired of showing visitors the charts he kept at the ready. The statistics were indeed impressive. At a time when banks were collapsing and other insurance companies were going bankrupt, the savings bank program moved right along. The number of participating banks steadily increased, as did the number of policies issued under the program. And less than 1 percent of the policies lapsed because of the wage earner’s default.
The entire lesson of savings bank insurance could not be learned from statistics alone. There was also something to be learned from those who administered it. And no one provided a better example than Grady. “Now look at Miss Grady and how she lives her life,” Brandeis would tell visitors in Washington. “She chose a vocation, a small one if you will, seemingly small, but she gave her life to it, and slowly it has grown and grown. If there were an Alice Grady in every community, our country would flourish with civic virtues and people would not be so tempted to look to Washington for help in tasks neglected at home.”1
No doubt these thoughts on Grady and savings bank insurance remained uppermost in Brandeis’s mind when he considered measures to lift the country out of the Depression. New problems required imaginative solutions. And perhaps now—as in the case of SBLI—it was time to use respected institutions to perform additional services. Here Brandeis focused on the United States Postal Department. Almost everyone was familiar with the town post office. It was a part of community life, a place that people recognized and trusted. Why not use it, then, to counter the power of big banks? It was not an idle suggestion. Big banks were, in Brandeis’s mind, a principal cause of the Depression—they had used other people’s money to invest in new business, and there was no end to the schemes they had devised and plants they had built. That went a long way to explain why the country had been overcapitalized and producing too much. So Brandeis thought it would be wise to give the Postal Department the power to open checking and savings accounts. He would also designate the Postal Department as the agency responsible for the issuance of securities. At the same time he would prohibit banks from doing more than one service. No longer would banks be allowed to invest in new ventures for themselves with the deposits of their customers. It was time for the law to recognize that no man—or bank—could serve two masters.
There were other elements to the Brandeis recovery plan. Reducing both corporate and individual wealth was of course essential. He favored taxes to limit the size of corporations. He also endorsed tax laws to limit the amount of money a person could inherit (since inherited wealth represented the product of someone else’s labors and did little except to create a privileged class).
Limiting corporate and individual assets, however, would not be enough. Brandeis understood that most people in these hard times did not have to worry about excess wealth. And to him, there was no mystery to the poverty that enveloped the country. The ever-present breadlines and apple pushcarts on the streets underscored once again the need for regularity of employment. People needed jobs, steady jobs that would provide both money and dignity. There too Brandeis had an answer. He admired the British economist John Maynard Keynes, agreeing with Keynes that the only solution now was a massive public works program. It would take millions of public dollars, but there really was no other course. And it would not be so bad—the government could concentrate on tasks that the private sector was likely to ignore, such as afforestation, irrigation, adult education, recreational parks.
There was one last feature to the Brandeis recovery program: unemployment compensation. For more than two decades he had argued that the worker had to have some protection against economic uncertainty. He therefore supported a program that would require employer contributions to a fund that could support workers if they found themselves without a job. And more than that, the program had to be administered by the individual states. He did not want relief measures to result in an oversized federal government. “You must remember,” he told Harry Shulman, one of his law clerks, “that it is the littleness of man that limits the size of things we can undertake. Too much bigness may break the federal government as it has broken business.”2
The justice was happy to describe his recovery plan to any visitor who expressed an interest. And many were very interested. After all, the Brandeis name was famous as a social activist and thinker. Some were impressed with the originality of the justice’s thinking. Others thought he was trying to turn the clock back. This was certainly the view of Raymond Moley, a member of the “brains trust” that advised Franklin D. Roosevelt during the 1932 campaign. It was absurd, said Moley, to pursue “the traditional Wilson-Brandeis philosophy that if America could once more become a nation of small proprietors, of corner grocers and smithies under spreading chestnut trees, we should have solved the problems of American life.”3 To Moley and other skeptics, the drift toward “bigness” was inevitable. Large corporations and large governments were needed to handle the demands of a large country. The answer, then, was not to destroy large aggregations of finance and power but to harness them for the public good.
Brandeis rejected out of hand the view that the growth of corporations and governments was inevitable. Man made those institutions. Man could control them—if he wanted. It required only will power and discipline. He knew from experience that those were effective tools. So the justice was spirited in response to those who expressed doubts about his recovery plan. Why shouldn’t we turn the clock back? he would say. The country had turned the clock back on Prohibition. It could be done in other areas as well. Besides, there was no need to compromise at the planning stage. Now the nation’s leaders should focus on what was needed. If circumstances later dictated adjustments, there would be plenty of time to compromise. And so Brandeis watched with interest—and hope—as the nation prepared to inaugurate a new president on March 4, 1933. He had promised the electorate a “new deal,” and Brandeis had reason to believe that it would turn things around.
Oliver Wendell Holmes continued to adore Felix Frankfurter like a son. The Harvard professor remained a never-ending source of ideas and conversation. There was also no question about the love that he showered on the former justice. In Frankfurter’s eyes the old man was the embodiment of perfection. Frankfurter’s friends and colleagues could not recall any occasion on which he criticized Holmes for anything. Holmes too took delight in Frankfurter’s activities and achievements. And there were many of them. He has, Holmes once told Harold Laski, “an unimaginable gift of wiggling in wherever he wants to. . . .”4 So it was hardly surprising that Frankfurter had established a warm relationship with Franklin D. Roosevelt.
They had actually known each other for some time—since 1906, when a mutual friend had introduced them. They had also seen each other frequently during the Wilson years when Frankfurter held an assortment of positions and Roosevelt was an assistant secretary of the navy. Afterwards Roosevelt was struck by polio and retired as a cripple to his family’s estate at Hyde Park, New York. Their contact was sporadic until Roosevelt—much to his family’s surprise and displeasure—decided to return to public life. After Roosevelt’s election as governor of New York in 1928, the contact between politician and professor became more frequent, and Frankfurter spent many hours on the phone and in visits to Hyde Park talking to Roosevelt about matters of public policy.
Frankfurter, however, hoped that Alfred E. Smith—Roosevelt’s predecessor as New York governor, who had lost a presidential bid to Hoover in 1928—would get the Democratic nomination in 1932. Smith was an accomplished and dedicated leader, Frankfurter told friends. Roosevelt, in contrast, did not have Smith’s political sophistication or courage. Roosevelt had, for example, chosen to accommodate rather than purge the political bosses in Tammany Hall. No, if Roosevelt won the Democratic nomination, Frankfurter observed, “it will certainly prove there is no limit to the amount of fumbling one can do and still win a game.”5
Roosevelt knew nothing of Frankfurter’s true feelings, so Frankfurter was able to retain a close relationship with the New York governor after he won the nomination and defeated Hoover in the 1932 election. They discussed a variety of people and policies, but few things dominated Frankfurter’s conversations as much as his references to Louis D. Brandeis. The Harvard professor had for many years passed on advice to Roosevelt from Brandeis. Shortly after the election Roosevelt expressed a desire to see the justice, and Frankfurter arranged a meeting at Washington’s Mayflower Hotel. Their talk was brief, but Brandeis was impressed. “My short talk with Franklin Roosevelt was encouraging,” he reported to Bess Evans. “He has learned much; and realizes, I think, the difficulties of the task.”6
In managing the affairs of state, few decisions were as important as Cabinet appointments. And so Brandeis later asked Frankfurter to arrange another meeting with the president-elect, and the Harvard professor scheduled it at the Mayflower in January 1933.
Alice Brandeis was concerned about the meeting. She did not oppose her husband’s contacts with public officials, but Louis was very susceptible to colds. She would, of course, take care that he was properly dressed for the cold weather when he left for the meeting. But precautions had to be taken to make sure that there were no open windows and unexpected drafts once he got to the hotel. So Paul Freund, the justice’s clerk, was dispatched to the Mayflower Hotel the day before the meeting to make sure that there were no dangers in Brandeis’s visit. At the Roosevelt suite a secretary assured Freund that there would be no problems, since the president-elect did not like drafts either.
The next day Brandeis and Freund were driven to the Mayflower in the justice’s rented car. Brandeis was ushered in to see Roosevelt. Brandeis’s purpose was to recommend that Frances Perkins be appointed to the Cabinet as labor secretary. It was not a casual recommendation. Perkins was a person who would probably be sympathetic to the Brandeis recovery program. She had been born in Boston, had grown up in Worcester, and had received her college degree from Mount Holyoke College. She was bright, articulate, energetic, and, perhaps most importantly, dedicated to social reform. She had spent her early years working with Jane Addams in Chicago’s Hull House and then moved to New York to work with Florence Kelley in the National Consumers League. Her talents and hard work were eventually rewarded with government jobs—most recently as Governor Roosevelt’s industrial commissioner.
The Brandeis endorsement could not have hurt Perkins, because later Roosevelt did indeed ask her to head the Labor Department, thus making her the first female Cabinet officer in the nation’s history. Although Brandeis was happy about the Perkins appointment and would use his influence to place other people in key government posts, there was one person he did not want to “lose” to the new administration: Felix Frankfurter. A few days after his inauguration, Roosevelt summoned Frankfurter to the White House and offered him the position of solicitor general of the United States, a position that would give him control over the government’s cases before the Supreme Court. To almost any lawyer it would have been an exciting opportunity, but Frankfurter hesitated. If he had to manage the government’s cases before the Supreme Court, he would not have time to advise the president on social policy. Roosevelt pushed, though, saying he ultimately wanted to put Frankfurter on the Supreme Court and it would be easier to do that politically once Frankfurter had served as solicitor general. Although he appreciated Roosevelt’s sentiments, Frankfurter said he would first like to consult some friends, including Justice Brandeis. Most of these friends urged Frankfurter to take the position. But not Brandeis. He said it would be “absurd.” There was much to be said for a teacher’s career. And besides, Brandeis knew that Frankfurter would have much more impact on the development of law as an unofficial advisor to the president than as solicitor general. So Frankfurter turned the offer down.7
From Brandeis’s perspective it was clearly the right decision. Things were happening in Washington. New people were coming to town to take important jobs. New ideas were being bandied about. And new laws were being drafted. As he told one of his sons-in-law, “FDR seems to have enough business to employ the 13,250,000 [who are] idle.”8
As a Supreme Court justice, however, Brandeis could not become directly involved in all these political activities. He had to be discreet. When people came to see him on political matters—as they often did—he would speak in general terms, often relying on parables to make his point. If the writer or visitor requested advice on a specific piece of legislation or policy, the justice would usually say that he was “precluded” from responding. Frankfurter was an exception. Theirs was an intimate relationship, one of complete trust and confidence. So Brandeis always felt free to speak frankly about any subject, except, of course, pending Court cases. And if the justice wanted policymakers to consider his views, he relied on Frankfurter to make sure the message was received.
The justice could not have had a better emissary of his ideas and proposals. And so the two of them spoke and corresponded often about developments in the new administration, such as people who had been or should be appointed to vacant positions. (Frankfurter’s efforts in this area were so successful that people in Washington—in some cases with resentment—referred to the new herd of young and idealistic government lawyers as Frankfurter’s “Happy Hot Dogs.”) But neither Frankfurter nor Brandeis was content to see friends and colleagues receive administration appointments. They were interested in results. And so they monitored the progress of new policies. What proposals were being debated in administration halls? What pressure groups were holding sway in Congress? And, perhaps most importantly, what was the president thinking?
Others around the president recognized the close relationship between Roosevelt and Frankfurter, and many of them did not like it. Frankfurter, they said, was Brandeis’s agent, and there would be nothing more disastrous for the country, they believed, than to see Brandeis’s ideas adopted as national policy. The competition for the president’s ear took on a conspiratorial air. Raymond Moley, who was the administration’s principal clearinghouse for relief proposals, told colleagues that Brandeis was a dangerous influence, that he had been President Wilson’s “dark angel,” and that he was “hovering again in our neighborhood, only he was a Justice now, and he had to have his deputies.” Rexford G. Tugwell, another member of Roosevelt’s “brains trust” and now an assistant secretary of agriculture, agreed. He spoke of Brandeis as “the old man in the shadows” who had “mysterious channels” to the White House. (It was ironic that, when Tugwell prepared to leave government a few years later, Henry Wallace, the secretary of agriculture and Tugwell’s nominal boss, sent Brandeis an invitation to a stag dinner they were holding in Tugwell’s honor.9)
For all the sinister characterization of their activities, Brandeis and Frankfurter really had little influence on policy in the early days of the Roosevelt administration. The president had great respect for the justice and, with a mixture of reverence and affection, called him Isaiah, after the Biblical prophet. The president had a similar respect for Frankfurter and the proposals he continually offered. But Roosevelt had other plans. He was, above all else, a politician. He was not interested in social creeds. He was interested only in proposals that might provide some relief against the Depression. And on that score Roosevelt tended to side with Moley, Tugwell, and others who accepted the presence of big business and urged a system that would rely on cooperation with corporate giants. After all, big business had played and would presumably continue to play a major role in national life. If reforms could be instituted without antagonizing them, that was far better politically than the collision course advocated by Brandeis and Frankfurter.
There were, nonetheless, some measures in the early days of the New Deal that pleased Brandeis. Frankfurter and his lieutenants were the principal draftsmen of a new securities law that would make more information available to the public and help prevent the kinds of abuses that had contributed to the stock market crash. And the Banking Act, signed into law on June 16, 1933, separated commercial banks from their investment affiliates and generally made it more difficult for them to speculate with other people’s money. But for the most part, the early New Deal legislation and activity reflected the Moley-Tugwell view.
Despite the few bright spots, Brandeis was largely disappointed with what he saw. It was not what he had expected or hoped. “Of course,” he told one of his sisters-in-law, “life in Washington now is stirring, intellectually, far more so than I have ever known it,”10 But many of the ideas were going in the wrong direction. The Agricultural Adjustment Act was a clear example. The law was designed to revive sagging farm prices by paying farmers to limit crop production. The scheme was to be financed, in part at least, by a new tax on food processors, the middle men who were accused of retaining what little profit was left in farming. Even before the law was enacted, Brandeis was “worried as thunder” about it, and he openly expressed his concerns to Gardner Jackson, who was working with the administration in framing the bill. The justice felt that the law would not help the tenant farmer who had the greatest need. Rather, the bill would only accelerate the growth of corporate farm operations that would buy land and then accept payments from the government to let it lie fallow. Brandeis continued to meet regularly with members of the Agricultural Adjustment Administration after the bill became law, and he repeatedly warned his visitors that they were going down the wrong path (although later he would put his personal feelings aside and vote to uphold the constitutionality of the AAA when the Court rendered its decision in 1936).11
Then there were the gold policies. Before Roosevelt’s inauguration the value of the dollar was based on the international gold standard. It involved a complex set of procedures and formulas, but, in essence, it limited the United States government’s discretion in assigning a new international value to the dollar. The new president was troubled by that limitation. Economists told him that recovery required inflationary actions that would increase prices and stimulate the flow of money in commerce. That course was blocked, however, as long as the United States remained on the gold standard. The answer, Roosevelt was advised by some, required that the government buy gold on the international market at inflated prices. The more Roosevelt paid for an ounce of gold, the less value the dollar would have in relation to gold; and the ultimate result would be an increase in the prices of commodities.
To Roosevelt it all made sense. The only question was whether he had the legal authority to purchase gold at inflated prices. Imaginative lawyers in the Treasury and Justice Departments told him that he did. He could take gold in exchange for bonds of the Reconstruction Finance Corporation, which would be priced to give gold a higher value. There was one dissenting voice to this plan: Dean Acheson. The former Brandeis clerk had prospered since his days at the Court. He had become a partner in the prestigious Washington law firm of Covington & Burling. He was now an impressive figure. Tall, urbane, with a full mustache and a quick intelligence. Not surprisingly, he had established many important relationships in Washington, and in 1933 Roosevelt had appointed him undersecretary of the treasury.
To Acheson it was really quite simple. The law expressly stated that gold could not be purchased for more than $20.67 an ounce. No amount of imaginative interpretation could get around that. Or at least so he thought. The president was willing to believe otherwise, and Acheson found himself in fundamental disagreement with the new administration’s policy. Perhaps he was wrong. He went to see his mentor. Attorney General Homer S. Cummings supported the president, he told Brandeis. Should I back off? To Acheson, the response seemed like words from the Delphic oracle, but the message was clear. “Dean,” the justice said, “if I wanted a legal opinion, I would prefer to get it from you than from Homer Cummings.”12 By the autumn of 1933 Acheson had resigned.
That did not end Brandeis’s involvement with the administration’s gold policies. Among other measures, the government repudiated its contractual obligation to pay government bonds with gold. It would be too costly after the revaluation of gold, and it would therefore interfere with the administration’s inflationary monetary policies. So people were told that the government, their government, would no longer honor the gold-clause provisions of bond contracts. Instead, people would be paid in dollars.
As Brandeis later explained to Frankfurter, he was “out of sympathy” with the government’s action.13 It was not right for the government to break its promise to the people. The government, after all, instructed people by its own example. But when the bondholders took their case to the Supreme Court in 1935, Brandeis put aside his personal feelings and supported the majority decision that left the government’s policy intact. Chief Justice Hughes, writing the majority opinion, acknowledged that the repudiation of the gold clauses was unlawful, but then—in a very clever move—rejected the bondholders’ claims because they had failed to show that the government’s action damaged them. The individual citizen could not obtain gold on the open market, and, since there had been only modest changes in price levels, the bondholder could not be harmed if he were paid in dollars; indeed, he would receive a windfall if he were paid in gold.
Brandeis watched with great interest when it came time for Justice McReynolds to speak on behalf of the four dissenters. It was a stinging, passionate statement. “It is impossible almost to overestimate the results of what has been done here this day,” McReynolds exclaimed. “The Constitution as many of us have understood it, the Constitution that has meant so much to us, is gone. The guarantees that men and women have supposed protected them against arbitrary action have been swept away.” Brandeis later reported to Frankfurter that McReynolds’s speech “was really impressive; better than anything I have ever heard from him.”14 It was only a matter of time before they were on the same side.
Despite the numerous visitors and the press of Court business, the Brandeis household was rather quiet. Alice was nearing seventy, Louis was approaching eighty, and they were content to spend many hours alone with each other. But it was not an entirely passive existence. Brandeis continued to observe and talk with visitors about Roosevelt’s New Deal program—now with mounting agitation. And one thing that especially disturbed him was the National Industrial Recovery Act.
When Roosevelt signed the recovery measure into law on June 16, 1933, he called it “the most important and far-reaching legislation ever enacted by the American Congress.”15 Many people shared that view. The law was certainly an innovative—if not daring—attempt to put the country back on its economic feet. In essence, it empowered the president to approve codes that would govern the conduct of business in specific industries. The law was very clear that the president’s approval gave the codes the force of law, and anyone in the particular industry who violated the code could be fined and even jailed. Almost everything else about the law was vague. There was no direction as to who exactly was authorized to develop these industrial codes. Nor was there much guidance as to the kinds of provisions the codes had to include to make them acceptable to the president. Section 7 did recognize labor’s right to engage in collective bargaining and did require all codes to contain provisions relating to maximum hours, minimum wages, and appropriate working conditions; but no one was quite sure exactly what that (or anything else) meant when it came to specifics.
The vagueness of the law reflected the ambivalent feelings of the legislators who adopted it. Many congressmen and senators were convinced, like Roosevelt, that price increases were a necessary ingredient to any recovery. So there had to be some way to allow members of an industry to prevent the kind of cut-throat competition that had driven prices downward. At the same time, many populist leaders recognized that price fixing was one of the most potent tools of monopoly, and virtually no one wanted to foster the growth of monopolies. Congress was not sure how to resolve the dilemma, so it didn’t. On the one hand, the law said that industry members would be immunized from the antitrust law if they met together to draft codes and fix prices. On the other hand, the law expressly prohibited monopolies and monopolistic practices.
Even before the bill was enacted, Roosevelt, confident of success, asked Army General Hugh Johnson to head the National Recovery Administration, which would become the new agency to oversee the development and implementation of the industry codes. It was a natural choice. Johnson had had experience with the War Industries Board in World War I. He had also spent countless hours with other administration officials in hammering out a bill that the president could present to Congress. When the group finally reached agreement in the middle of May 1933, Johnson was hopeful that the proposal would have dramatic results after it was enacted. He certainly had many thoughts on how they could be achieved. But he also knew he could benefit by the advice of more experienced hands. So when Lewis Strauss, the investor and sometime government official, told him he was going to see Justice Brandeis toward the end of May, Johnson asked if he could go along.
Brandeis was of course happy to pass on advice. It was most important, he told Johnson, that you not try to do too much. Man had his limitations, and if Johnson and the NRA did not recognize them, their venture was doomed to failure. Johnson heard Brandeis, but he was not really listening. There was so much they could do with the NRA, so much they had to do.
And so Johnson undertook a frenetic pace after the NRA came into being. He raced around the country talking to business and labor groups, urging, cajoling, pleading for cooperation and action. In time, the most important industries drafted codes, the president approved them, and the blue NRA eagle became a common sight in the stores and offices of American’s business establishments.
It was, however, a house of cards. The groups drafting the codes had few labor and consumer representatives. To almost no one’s surprise, the labor provisions required by Section 7 were weak. Labor leaders complained bitterly that the NRA was a fraud, and they began to refer to it as the “National Run Around.” The public also felt cheated. The codes fixed prices at levels that gave higher profits to business but virtually nothing to the consumer. And despite the law’s prohibition of monopolistic practices, there were pervasive complaints that large corporations were using the codes to squeeze out small business.
All of this was confirmed in May 1934 with the release of a report by a special investigative board headed by the noted lawyer Clarence Darrow. The slide downward was rapid after that. Many business, labor, and consumer groups began to boycott the NRA and the codes. In times of economic crisis, they said, it was not fair to ask obedience to laws that only aggravated the situation. The criticism of Johnson intensified; his driving and often abrasive personality, it was said, was a major irritant in the whole affair. He turned to drink, but that solved nothing. Pressure for his resignation grew.
In the middle of September 1934, Johnson decided to give a radio address to respond to his critics. It was a rambling, defensive speech. That was no surprise. His reference to a Supreme Court justice was. “During this whole tense experience,” Johnson said, “I have been in constant touch with that old counselor, Judge Louis Brandeis.”16 Although rumors of Brandeis’s influence were widespread in Washington, this was the first public declaration that the justice was a part of the government’s policy-making apparatus.
It certainly was dramatic, and it prompted a spate of newspaper articles discussing the proprieties of a Supreme Court justice’s advising a president. Although Johnson’s claim sounded intriguing, there was actually little truth to it. Aside from that one visit in May 1933, Brandeis had actually talked to Johnson only a few times—the last occasion being when the NRA administrator came to say that he had not followed Brandeis’s advice and regretted it very much. Unfortunately, no one knew that Johnson’s claim on radio was a gross exaggeration.
Paul Freund was sitting in his office in the Reconstruction Finance Corporation when the call came. Justice Brandeis wanted to see him at the apartment immediately. When the former clerk arrived at California Street, Brandeis told him he was expecting a telephone call and he wanted Freund to take it. In due course the phone rang and Freund answered it. Judge Julian Mack, who was close to many administration officials, wanted some guidance. The language was guarded, almost conspiratorial, but it all revolved around the president’s forthcoming press conference. “The Skipper will be asked at his press conference about the offender,” Mack told Freund. “The offender is contrite and is willing to say anything. Ask Justice Brandeis what the offender should say.” Freund told Mack to hold on while he relayed the message. “Tell him,” Brandeis said, “the thing for the General to say is nothing.” When Freund reported back, Mack exploded. “Did you tell him what I said?” When Freund replied that he had, Mack demanded that he ask Brandeis again. The answer remained the same. “Tell the General to say nothing,” Brandeis said, “and I’ll explain the facts to the Chief Justice.” After Mack hung up, Brandeis told Freund the facts. Johnson had done the “manly” thing in coming to him to express his error, the justice explained, and there was really nothing that Johnson could truthfully say about the radio address except that he was drunk, “And I wouldn’t want him to have to say that,” Brandeis told Freund. Several months later—after much agonizing—Johnson wrote Brandeis a letter, apologizing profusely for his “stupid inadvertence” and telling the justice that he was “on a kind of pedestal” in Johnson’s heart and “almost the last man” he “would think of hurting.”17
In time the controversy over the Johnson speech died down. The agitation over the NRA did not. Although Johnson was soon replaced by Donald Richberg, the administration he headed encountered a new obstacle: the United States Supreme Court.
The first major test came in 1935 and involved the interstate transport of “hot oil”—oil that was produced in violation of state codes that limited production levels. The codes were an effort to control supply and push prices upward. The National Industrial Recovery Act authorized the president to ban the shipment of “hot oil” in interstate commerce, and Roosevelt had done just that. Now an oil shipper complained to the Court that the law involved an unconstitutional delegation of authority to the chief executive. The Congress was supposed to make the laws; the president was supposed to enforce them. But here, it was argued, the president alone, without meaningful standards, decided whether to ban the shipment of “hot oil.” Not only that, his order could result in fines and jail for anyone who disobeyed it. The president, in other words, did not merely execute the laws here; he also made them.
Brandeis agreed with all that. But he was even more appalled by the way the president enforced his orders. It was almost impossible for anyone outside of Washington to know about them, let alone what they entailed. Brandeis had already talked to Tommy Austern, a former law clerk now at Covington & Burling, as well as Justice Department officials, about the need for a reporting service that would periodically publish executive orders (an idea that would later lead to creation of the Federal Register). If there was any doubt about the need for a federal reporting service, it washed away when the shipper’s attorney explained to the Supreme Court that his client knew nothing about the president’s order until the government attorney visited him in Texas and took it out of his hip pocket.
Not surprisingly, the Court, with Brandeis’s support, invalidated the particular provision of the NRA that delegated all this power to the president. The justice then passed the word that the Roosevelt administration was facing disaster. He had earlier conveyed the impression to some friends in government that he was prepared to hold some measures (like those involved in the “hot oil” case) unconstitutional. Now he again made it clear that Roosevelt faced serious dangers if he persisted in his present course. “It can’t go on like this much longer,” he remarked to one of Frankfurter’s protegés in government.18
And indeed it didn’t. The day of reckoning came on May 27, 1935—”Black Monday,” it was later called. It was the last opinion day of the Court term, and one that President Roosevelt would long remember. In unanimous decisions, the Court struck a major blow at the president’s recovery efforts. Justice Sutherland gave the opinion reversing Roosevelt’s effort to fire FTC Commissioner William Humphrey; Chief Justice Hughes wrote the opinion that invalidated the entire NIRA; and Justice Brandeis issued the decision that held the Frazier-Lemke Act unconstitutional. Hughes apparently wanted all three opinions handed down before the Court left for the summer recess, and he was grateful that Brandeis had been able to complete his opinion on time.
Brandeis was actually sympathetic with the goals of the Frazier-Lemke Act, which was designed to provide relief to farmers who could not meet their mortgage payments. In essence, the law established a complicated procedure that allowed the farmer to stay on the land and pay off the debt later. However wise the law was from a social point of view, Brandeis could not get around the fact that it simply cut off the rights of the person holding the mortgage. It was one thing for the government to give a helping hand; it was quite another to pay for it by almost literally taking money out of someone else’s pocket. Brandeis felt that the law deprived people of their property without due process and therefore violated the Fifth Amendment.19
That last opinion day, however, was more, much more, than three decisions that affected specific Roosevelt administration actions. To Brandeis the three decisions signaled a halt to the growth of the federal government. And Brandeis wanted to make sure that the president got the message. He sent for Thomas G. Corcoran and Benjamin V. Cohen.
Tommy “The Cork” Corcoran had clerked for Holmes during the 1926 Court term. After a brief stint at law practice, Corcoran was persuaded by Brandeis and Frankfurter to come to Washington in the last days of the Hoover administration to work in the Reconstruction Finance Corporation, a governmental relief organization. When Roosevelt came to town, Corcoran found the adjustment easy. He was one of Frankfurter’s star pupils, and for good reason. Few people were as quick and as smart as Corcoran. There was also the Corcoran personality. Always a joke, a warm smile, perhaps even one of the many Irish ballads he knew. He had been one of Holmes’s favorite clerks, and after he joined the White House staff on Frankfurter’s recommendation, he became one of Roosevelt’s favorite assistants.
Long before he reached the White House, Corcoran had collaborated with Cohen in drafting numerous pieces of New Deal legislation. It was, at first glance, an unlikely match. In contrast to Corcoran’s ever-present ebullience, Cohen was quiet, shy, almost retiring. His career was also very different from Corcoran’s. Cohen had clerked for Judge Julian Mack after getting law degrees from the University of Chicago and Harvard. He had thought about practicing law, but Mack and Brandeis persuaded him in 1919 to go to London to be their representative in Zionist councils. Cohen worked hard for the cause, and in time almost everyone—Brandeis included—came to appreciate his intelligence and political sensitivity. Frankfurter agreed with this assessment, and Cohen received high-level appointments in Roosevelt’s Interior Department. Formal bureaucratic lines were almost meaningless, though. Cohen was a principal draftsman of the Securities Act of 1933 and other New Deal measures that had nothing to do with Interior business.
Cohen and Corcoran seemed to do everything together. They even lived together in a Georgetown townhouse. People called them “the gold dust twins.” And one of the most important things they did together—religiously—was keep in touch with Frankfurter. They sent him long letters and memos describing developments in government and seeking his advice. They also reported to Frankfurter about their regular visits with Justice Brandeis—what he believed, what he recommended. The communications with Brandeis, however, were confined to generalities (often consisting of points Brandeis had been advocating for decades). Cohen and Corcoran were careful never to discuss specific legislative provisions or strategies with the justice. “He was such a conscientious bastard,” Corcoran later recalled, “that he would have disqualified himself from a case involving a law if he thought he were involved.”20 And one of the last things Cohen and Corcoran wanted was to lose a supporting voice on the Court.
Brandeis, of course, knew that Cohen and Corcoran kept in constant touch with Frankfurter. So it was only natural for him to summon them to explain the significance of the Court’s three New Deal decisions on May 27, 1935. The three of them met in the justices’ robing room shortly after the opinions were delivered. Brandeis was excited, almost agitated. “You have heard our three decisions,” he gasped. “They change everything.” Cohen and Corcoran, Brandeis said, must get Frankfurter to come down from Cambridge immediately so he could explain it all to the president. “You must also explain it to the men Felix brought into the government,” Brandeis demanded. Corcoran suggested that the three decisions might undercut Congress’s consideration of legislation that Brandeis favored. The justice was not interested. “The President has been living in a fool’s paradise,” he told the young lawyers. “The Court unanimously has held that these broad powers cannot be exercised over matters within the States. All the powers of the States cannot be centralized in the Federal Government.” Brandeis also had a message for the new lawyers who now populated the government bureaucracy. “As for your young men,” he told his visitors,”. . . tell them to go home, back to the States. That is where they must do their work.”21
All in all, then, Brandeis was pleased with this new turn of events. The Court decisions would, he felt, awaken people to the dangers of the course set by the Roosevelt administration. The news was trumpeted in headlines across the nation the following day. “I think,” Brandeis told Julian Mack, “that our Court did much good for the country yesterday.”22
The president took a different view. He was dumbfounded by the Court’s decisions. He had already lost some cases, so the Court’s hostility to the New Deal was not entirely surprising. But now the Court had reversed three major actions in one day. And the opinions were unanimous. That really galled Roosevelt. “Well, where was Ben Cardozo?” he asked his advisors. “And what about old Isaiah?”23 In a press conference the president expressed his bitterness. Although he had privately told Frances Perkins that the NRA was “an awful headache,” and although the law was facing major revision in Congress, he told the assembled reporters that the NRA decision was the most upsetting because it relegated the country “to the horse-and-buggy definition of interstate commerce.”24
Back in Chatham, however, Brandeis, now on his summer vacation, remained pleased with the Court’s work. In a confidential interview with two reporters he explained why. In the Humphrey case, he said, the president had wanted to replace a commissioner on the Federal Trade Commission—an independent agency—because he disagreed with the president’s political views. “If men on the Federal Trade Commission and similar government agencies are not allowed to exercise their independent judgment,” he observed, “we should have in effect a dictatorship or a totalitarian state.” What would happen, he rhetorically asked, if Huey Long—the populist demagogue from Louisiana—”were President and such a doctrine prevailed?” As for the NRA, Brandeis said, it was impossible to believe that a few individuals could supervise hundreds of codes governing business across the United States. And from a purely legal perspective, he had already told intimates that he did not see how any good lawyer could have thought the NRA was constitutional.25
So Brandeis looked to the future with optimism. And it reflected far more than the decisions handed down on Black Monday. Indeed, the irony was that the tide had already turned in the Roosevelt administration. While the Court was rejecting the actions of the First New Deal, Frankfurter and Brandeis were gaining the upper hand in shaping the legislative program for the Second New Deal.