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.

Louis D. Brandeis caricature in The Truth magazine December 14, 1912

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.

Louis D. Brandeis in the February 15, 1913 issue of The Truth magazine.

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.

Louis D. Brandeis in the March 15, 1913 issue of The truth magazine.

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.

Louis D. Brandeis in the May 3, 1913 issue of The Truth magazine.

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.”

Louis D. Brandeis in the May 3, 1913 issue of The Truth magazine.

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?)”

A drawing of Louis D. Brandeis and Jacob Schiff in the April 25, 1914 issue of The truth magazine.

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.”

Picture of Louis D. Brandeis and David E. Brown from the April 23, 1913 issue of the Boston American.

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.

New Haven's Losses Hidden in Accounts

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.

Scenes at the Hearing

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.

Find Mellen Secret Builder of Costly Westchester Road

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.

Citizen Brandeis in Repose

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.

Mr. Brandeis Cross Examining

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.

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, by April 12.

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.)

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.

Full picture of display of the centennial of Brandeis' nomination to the Supreme Court at the Louis D. Brandeis School of Law Library at the University of Louisville.

In honor of the centennial of Woodrow Wilson nominating Brandeis to the U.S. Supreme Court, we at the law library of the Louis D. Brandeis School of Law at the University of Louisville. And by “we” I mean mostly Kurt Metzmeier.

Flanking both sides of the display case are framed copies of two front pages from the New York Times. The one on the left is from January 29th, 1916 and is about Brandeis’ nomination. (Interestingly, the Times says the nomination was “today” but the story itself is dated January 28th. This was enough to confuse Wikipedia which gives the date of the nomination as the 29th instead of the correct date.) The one on the right is from June 2nd, 1916 and is about the Senate confirming the nomination.

Left side of the display case.

In the left side of the case we have the book Justice on Trial: the Case of Louis D. Brandeis by A. L. Todd, which relates the details behind the nomination and confirmation. There are two of the editorial cartoons that I mentioned in an earlier post and a March 22nd 1916 letter from Brandeis’ friend and political ally Senator Robert M. La Follette.

The right side of the display case.

The right side of the case has a copy of the transcripts of the Senate confirmation hearings and a rare copy of the first edition of Brandeis’ book Other People’s Money. We actually have 3 copies of Other People’s Money but this one has its original dust cover–a real rarity for a book from that time. Also in the case, but added after I took this picture, is a campaign button from Robert La Follette’s 1924 presidential campaign.

There are lots of letters to Brandeis from this time period in our collection. But I picked this letter from La Follette for the display because it is one of the more interesting ones. Not only does it give a good idea of the type of support people were offering to Brandeis at the time but it is also a revealing example of the friendship between the two men. Brandeis had many colleagues during his career but seemingly few close friends. La Follette and his family were an exception. The two met shortly after Brandeis’ arrival in Washington and the two immediately hit it off. Brandeis was a frequent guest at the La Follette family dinner table and he remained close with the rest of the family after La Follette’s death in 1925. La Follette thought so much of him that Brandeis was his first choice for his running mate in his 1924 presidential campaign. But he also knew him well enough not to be surprised when Brandeis turned him down.

Since the letter is not greatly visible in the pictures above, I have transcribed it below. I should mention one caveat about the reproduction though. La Follette wrote it in the heat of the moment after reading something that annoyed him. You can almost see his anger building as the letter goes on and by the end ink and vitriol seem to be almost flying off of the paper. As a result, La Follette’s handwriting gets worse as the letter goes along and the second to last paragraph is indecipherable at times. But the gist certainly comes through.

My Dear Louis–

You know me & can trust me. Take(?) the hearings and make a brief for me just as if I was the man to be confirmed.

Don’t ask anyone else to do this. You must do it. Send it to me on plain paper typewritten without any signature. It will save me time. I would not ask this but [I] must leave here Saturday night & shall not be back before the Committee reports I fear.

There will be some hot-work before the vote comes and these hell-hounds must get what is coming to them. I mean these Bar Association presidents — thieving presidents– these sleek respectable crooks whose opinions are for sale. There are no facts in the(?) case – but these opinions hurt.

However every foot of the ground must be covered and the answers which have been […] in […] — the informal […] must be sharpened and given more edge.

If this notes lacks in calmness & poise I let it be known to you that I have just been reading a damned mean editorial in the Wash. Times — Ever yours, B.

Melvin Urofsky, author of Louis D. Brandeis: A Life and many other books and articles about Brandeis, has just published a new book. Titled Dissent and the Supreme Court, it is a look at how Supreme Court dissents helped form a dialogue throughout history that shaped how the Constitution is interpreted. I haven’t had a chance to read it yet, but a perusal of the index shows that he spends a good part of the book discussing not only Brandeis but also both John Marshall Harlans.

For those of you who want a taste of the book, C-SPAN has posted two videos: a speech by Urofsky and an interview.


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