As interested as I am in Louis D. Brandeis’s uncle, Lewis Dembitz, I was quite happy when I ran into a recent article in the Jewish Telegraphic Agency about his great-granddaughter Shoshana Dembitz and her recent marriage to her partner of 18 years, Abigail Grafton.
As interesting as the marriage is, I was more intrigued by the account of Ms. Dembitz’s life. Her father, named like his grandfather, Lewis N. Dembitz, worked at the Federal Reserve System. Her mother, Florence de Haas, was the daughter of Jacob de Haas, the man who introduced Brandeis to Zionism and who wrote the first biography of Brandeis. She was an attorney, who, like Brandeis, appeared often before the Interstate Commerce Commission. Apparently, she later worked as a civil rights attorney until her career was derailed by accusations of communist affiliations. Shoshana seems to have spent her life working for progressive and Jewish causes. She founded a non-profit elementary school, a community credit union, as well as a couple Jewish communities. It would appear that she has inherited her great-grandfather’s sense of commitment towards public service as well as his devotion to his faith.
Abigail Grafton does not appear to be a slouch either. In the sixties, she was active in civil rights and anti-war protests and lived in an anarchists’ collective. She later became a psychotherapist and founded the Sonoma Institute, which according to the article, “trained therapists with a feminist slant.” In the last paragraph of the article, Grafton identified with people who are “conscientious objectors and shit disturbers.” That description sounds like it could apply to Dembitz and Grafton as well.
Mazel tov Shoshana and Abigail!
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Today is June 1, 2016, which is the 100th anniversary of the Senate’s confirmation of President Wilson’s nomination of Louis D. Brandeis to the US Supreme Court. Newspapers across the country are marking the occasion with editorials. There are so many of them I cannot link to them all here, so I will limit myself to one. Laura Rothstein (who was kind enough to guest write one of the posts here) penned an op-ed piece on Brandeis’s nomination and the role Louisville and his family played on his judicial philosophy. It was published, appropriately enough, in the Courier-Journal, Brandeis’s hometown newspaper.
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This post is less of a sequel to my previous post on Brandeis’s fight against the Charles Mellen and the New Haven Railroad and more of a side note. One of the revelations that came from the ICC’s hearings was that Mellen authorized the expenditure of New Haven money to fund various publications to tell their side of the story. One of the more notorious of these was a magazine ironically named The Truth. The Truth‘s attacks on Brandeis were particularly vicious, often bordering on anti-Semitic. The articles make for incendiary reading, but it must be said, they had some good artists on their staff. The cartoons collected in Brandeis’s scrapbooks (and I have reason to suspect that there were others that did not make it there), despite their offensiveness, are some great examples from the early days of editorial cartoons, as well an illumination into some of the issues surrounding the New Haven fight.
The first cartoon is a nice piece of caricature from the December 14, 1912 issue that lampoons what they perceived as Brandeis’s hypocrisy and sanctimoniousness.
I have to apologize for the next one and a couple of the later ones. The original copy is very large and in poor shape and so I had to scan the image from a microfilm reel, and the set up of the reader made it impossible to capture the whole thing. It is from the February 15, 1913 issue. There was a lot of talk around this time about whether President Wilson was going to appoint Brandeis to a cabinet position. The Truth is making hay here with the fact that until Wilson’s candidacy, Brandeis had always been a Republican. There was certainly true if a little misleading. The Republican Party before this time had been filled with Progressives. But Brandeis had become disenchanted with Theodore Roosevelt and (especially) Taft, particularly with their economic policies. As a result, Brandeis was not only a supporter of Wilson’s, but he was also a key adviser during Wilson’s campaign on economic issues.
The right portion, which is missing in the scan, reveals a child shining a spotlight on Brandeis.
The next cartoon is from the March 15, 1913 and is fairly self-evident. It also is a little clipped on the right hand side.
The next two cartoons are from the May 3, 1913 issue which came out during the ICC hearing. The first depicts the Boston Fruit and Produce Exchange’s dismissal of Brandeis as its counsel during the ICC’s hearings. Of course, there is no indication of the pressure the New Haven put on the Exchange to accomplish this.
The next one is missing the left side, which is a real shame because a lot of the meaning of the picture is left out as a result. This cartoon depicts an accusation the New Haven made repeatedly: that Brandeis was not the altruistic citizen he claimed to be. Instead, they charged, he was attacking the railroad for the financial gain of other parties. You can see Brandeis dressed up in traditional robber’s garb and stealing New Haven stock certificates from a figure representing New England (dressed up as a Pilgrim, no less!) whom he has just knocked out. What you cannot see if that he is also passing the stocks to a shadowy figure in the missing left frame who is labeled “New York Banking Interests.”
The final drawing is significant in a number of ways. It is from the cover of the April 25, 1914 issue of The Truth. This is almost a year after the ICC hearing was over and after Mellen had been ousted from the board of the New Haven and four months before the US government finally forced the company to divest itself of its control of the Boston and Maine Railroad. It is presumably one of the last issues of the magazine (I have not been able to verify this yet) and interestingly this is the ugliest of the drawings from the magazine I’ve seen. I wonder if the poor artwork is a sign of the troubles of the railroad and the magazine. Maybe with less money to spend they could no longer afford good artists? Another interesting thing about the drawing got cropped out in the scan. Right above the drawing there is a handwritten note to Brandeis’s secretary: “Miss Grady – This is an outrage (MAW?)”
This drawing repeats the accusation of the previous one. Here, however, the mastermind of the whole plot is “revealed” to be Jacob Schiff, a prominent Jewish New York banker. The subtext, of course, is that since both Brandeis and Schiff were both well known Jews the campaign against the New Haven was some sort of Jewish conspiracy.
It’s hard to tell if the directors of the New Haven really believed these charges or whether they invented them to undermine Brandeis’s arguments. If Mellen really did believe it at one time, there is evidence that he changed his mind later on. The New Haven fight was brought up during the Senate hearings over Brandeis’s nomination to the Supreme Court. Senators hostile to the nomination invited Mellen to testify in support of the claim that Brandeis had been the agent of outside interests. To everyone’s surprise, Mellen declined and instead sent a telegram that read: “I am absolutely without information as to anything that I would be justified to testify under oath. I think it would be a waste of the committee’s time and mine for me to go to Washington to testify. I am not at all unfriendly to Brandeis, and I know nothing about his career except hearsay.”
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One of Brandeis’s biggest progressive fights before he joined the Supreme Courts was his opposition to the merger of the Boston and Maine Railroad with the New Haven Railroad. In many ways, the New Haven fight was the genesis of much of Brandeis’s economic philosophy.
In an era of big business and monopolies, the New Haven Railroad stood out by virtue of its size and ruthlessness. Under the leadership of Charles S. Mellen, and the with financial backing of the banking house of J. P. Morgan, the New Haven acquired a near total ownership of all transportation of the New England states surrounding Massachusetts — not just the railroads, but also trolley and steamship lines. Most of the states acquiesced without much of a struggle, but the New Haven stirred a hornet’s nest when they entered Massachusetts
In 1905, the New Haven began purchasing trolley lines in Massachusetts despite a state law that forbade railroad companies from owning stock in other railroad companies in that state. The new Haven lobbied against the law while simultaneously ignoring it and buying more trolley lines. Public outcry really began, though, when the New Haven took their strategy further and began buying stock in the Massachusetts railroad line the Boston and Maine.
Brandeis was hired to represent some stock owners of the Boston and Maine. (Eventually, Brandeis would sever his connection with the railroad and pursue the matter as a private citizen.) Brandeis helped draft a bill that would have made the New Haven’s actions even more explicitly illegal, but the Massachusetts legislature failed to pass it and the New Haven quickly gained control of the Boston and Maine.
The New Haven argued that consolidation was necessary and that the combined railroads would be more efficient and profitable. And at first, the latter claim seemed to be true. The New Haven claimed to be making a profit and paid high dividends to its stockholders.
Brandeis, however, was skeptical and started poring over all of New Haven’s stock reports and records. In 1907, he published a pamphlet titled Financial Condition of the New York, New Haven and Hartford Railroad Company and of the Boston and Maine Railroad, in which he claimed that the New Haven was using shady accounting tricks to make it appear that it was operating at a profit, when it was actually losing money.
The lead to years of accusations against Brandeis’s character and counter-accusations of chicanery on the part of the New Haven. Meanwhile the service on the Boston and Maine got worse and deadly accidents started happening because of the New Haven’s inability to pay for repairs. (But the stockholders continued to receive their dividends.) Matters came to a head in 1913 when the Interstate Commerce Commission held hearings to investigate the real financial condition of the New Haven.
In the scrapbooks relating to the merger issue here at the University of Louisville, I found the following editorial cartoons from the Boston Post that give a (nearly) day by day description of the hearings. Since the cartoons have not been republished since 1913, I thought it would be to post them here with descriptions of the events being illustrated.
The cartoons are all signed “Norman,” which was the pseudonym for William Ritchie. I don’t know much about Mr. Ritchie, but fellow WordPress blog Tattered Fabric has an interesting post about him and his coverage of the Lizzie Borden trial. I also posted a couple of his cartoons in my post Editorial Cartoons About Louis D. Brandeis (all of the cartoons in which, incidentally, are about the New Haven controversy.) One of them I am reprinting below and the other is a great one that depicts Mellen as a cubist painter.
The first cartoon is from the April 23 issue of the Post, which was the day after the first day of the hearings and it depicts many of the main players of the day’s proceedings. Besides Brandeis, there is Charles A. Prouty, the commissioner from the ICC conducting the hearings; David E. Brown, the ICC’s “Expert Examiner,” (he is the person standing next to Brandeis in the picture from the Boston American at the top of the post); and Sylvester Baxter, journalist and poet, who wrote many articles defending Mellen and the New Haven.
The cartoon also depicts 2 events from the first day. New Haven vice president Edward G. Buckland requested that the hearings be held in private, but Prouty refused, stating, “Sub rosa investigations never achieved anything.” The bombshell of the day was the revealing of a stock transfer involving one J. L. Billard. For a while, the New Haven needed to hide its stock shares of the Boston and Maine. It “sold” the shares to Billard for safe keeping using money it gave to Billard to make the sale look legitimate. When it wanted the stocks back, the New Haven paid Billard 2.7 million dollars, which he kept. In other words, Billard earned close to 3 million dollars on a transaction in which he put up no money of his own. The revelation of this and accounting stunts ended up being key in turning public opinion against the New Haven.
Most of the testimony on April 23 centered on the Hampden County line: a 15-16 mile line built by the Boston and Maine after its purchase by the New Haven. The line paralleled another line which was owned by the Boston and Albany Railroad, which was another railroad company owned by the New Haven. The duplicative line cost 4 million dollars to build, which as Commissioner Prouty pointed out, cost as much per mile as it did to cut through the mountains of Panama for the canal.
Brandeis was originally hired by the Boston Fruit and Produce Exchange to represent them at the hearing. For reasons that were never made clear (although it was largely suspected that it was due to pressure from Mellen), the Exchange formally discharged Brandeis. Instead of going away, however, Brandeis showed up on the 25th, claiming to represent the people of Massachusetts as a citizen.
New Haven lawyer Charles F. Choate, Jr. also showed up that day, and following Brandeis’s example, announced that he too was there to represent the people of Massachusetts as a private citizen. When Brandeis asked him if he was still in the employ of the New Haven, he flatly denied it. Brandeis then asked Brown if there were any records of recent payments by the New Haven to Choate, which Brown promptly provided to the amusement of the spectators of the court.
Brandeis did little on April 30 as most of the day was spent by Choate (who by this time had identified himself as an attorney for Mellen) cross-examining Brown in an effort to refute the points made by Brandeis.
Mellen himself appeared in the hearing on May 2 to give a statement that took up most of the afternoon. However, neither Brandeis nor any of the other lawyers were allowed to cross-examine him.
The testimony wound down on May 3 with the highlight being Brandeis’s cross-examination of New Haven lawyer Edward D. Robbins, who angrily resented many of Brandeis’s questions.
The ICC released its report on the hearings in July, in which it endorsed many of the demands Brandeis had been making for years regarding the break up of the New Haven conglomerate of railway lines. The Commission did not have the authority to enforce its findings, but the release of its report, along with the resignation of Mellen which happened around the same time, and the continued deterioration of service on the line all lead to the eventual disintegration of the New Haven empire.
Note: I gathered much of the information for this post from newspaper articles in the Brandeis collection and the book The Fall if a Railroad Empire: Brandeis and the New Haven Merger Battle by Henry Lee Staples and Alpheus Thomas Mason.
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On April 14, the Jewish Community will host Dr. David Dalin at two events focusing on Louis D. Brandeis. Dr. Dalin is an ordained rabbi and widely published scholar on American Jewish history. He is the author, co-author, or editor of eleven books, including The Presidents of the United States and the Jews. He is now completing a forthcoming book, The Jewish Justices of the Supreme Court, from Brandeis to Kagan – Their Lives and Legacies, that is scheduled for publication by the Brandeis University Press. A keynote address on “Louis D. Brandeis: The First Jewish Supreme Court Justice” at 10 am (part of a full day Senior University program) will be given at The Temple on Brownsboro Road in Louisville, Kentucky. Later that evening, a second talk on “American Presidents From Lincoln to Obama and their Relations with the Jews” will take place at 7 pm at the Jewish Community Center (also in Louisville). These programs are co-sponsored by the Jewish Community Relations Council and The Temple, and are coordinated with other events recognizing the 100th anniversary of the nomination of Louis Brandeis to the Supreme Court. For information about these events and how to attend, contact Jewish Community Relations Council Development Director Matt Goldberg, email@example.com by April 12.
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I have just discovered a rash of Louis D. Brandeis and John Marshall Harlan related articles. Here is a quick run down of them.
Mel Urofsky has penned an article related to the upcoming nomination of a successor to Justice Scalia that has been reprinted in a number of newspaper. He argues that Brandeis was the most unique justice to serve on the Supreme Court and that there will probably never be another one like him. He is almost certainly right.
Nicholas Lemann had an article (“Notorious Big”) published in the Books section of the March 28, 2016 issues of The New Yorker. He writes about the historical conflict between populism and big business/government in presidential elections and its current iteration in the contest between Bernie Sanders and Hillary Clinton. Naturally, Brandeis’s name comes up when he discusses the progressive era and he devotes a good chunk of the article to Brandeis’s views on the matter.
Notre Dame professor Barry Cushman has an article in the Winter 2016 issue of The Green Bag (“Justice Brandeis and Substantive Due Process” v. 19, no. 2, pp.145-156) where he argues that Brandeis’s use of the Due Process Clause in his opinions is more nuanced than traditionally thought.
And finally, Clare Cushman has added to the growing body of study relating to Supreme Court clerks with an article in the latest issue of the Journal of Supreme Court History. (“Fountain Pens and Typewriters: Supreme Court Stenographers and Law Clerks, 1910-1940” v. 16, no.1, pp.39-71.) Brandeis is not mentioned at all in the article (there has already been plenty written about his clerks) but there is a section devoted to Harlan and his last clerk, John E. Hoover (J. Edgar’s uncle.) My only quibble with the article is that when she cites a letter written by Mr. Hoover her footnote places the original at the University of Louisiana instead of its proper home here at the University of Louisville. (Boo!) I would normally blame the editor for a mistake like that instead of the author, but since Ms. Cushman is also the editor of the journal, I don’t any way of her escaping the blame. That small mistake aside, the article is a great read and ought to be enjoyed by anybody with an interest in Supreme Court history. (The article is available online, but only for people with access to Wiley’s database.)
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Rick Howlett from Louisville’s public radio station WFPL stopped by the University of Louisville Law Library the other week for a look at our nomination centennial display. While here, he interviewed Laura Rothstein and myself about the nomination and Brandeis’ continued influence on American law. You can hear the results over on WFPL’s site.
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