The December 1, 2014 issue of The New Yorker has a great story by Jill Lepore titled “The Great Paper Caper.” It is about the theft of various items from the collection of Felix Frankfurter papers at the Library of Congress, and it raises interesting questions about Supreme Court secrecy vs. historical and academic interest in the background of court decisions. I would have been interested in it anyway, but it has the added attraction of mentioning the University of Louisville’s collection of Brandeis papers. Not that it says much: She mentions how Brandeis started sending us his papers before he even retired from the bench. (The subtext of the story is that he was the first Supreme Court justice to donate his papers to an institution other than the Library of Congress. I wonder if that’s true.) Then she relates the tale of how Frankfurter came by the law school in 1941 and took back a number of his letters. (Fortunately, he didn’t get them all.) The story is told with more detail than I have heard in the past. She doesn’t cite any source for the incident but she does cite Mel Urofsky for another story later in the article, so I suspect that he was the source for this as well. Anyway, it’s a great read and I recommend it to anyone interested in Supreme Court history or archives.
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About a year or so ago, I was contacted by a producer (I have since forgotten his name) for the radio show / podcast Back Story with the American History Guys. He said they were thinking about doing a show on the history of elections in America. One of the topics they were researching was the Australian ballot, a form of secret ballot that was printed by the government and distributed at the polling places. While pretty much standard now, according to this producer, Louisville was the first city in America to implement this style of election and Louis Brandeis’ uncle, Lewis Dembitz, was said to be the man who wrote the bill that enacted it. He asked me if I knew anything about the matter and after a little research, I found that the matter was a little bit more complicated than that. I gave my information to the producer, but as far as I can tell, it was never used. The episode seemingly never materialized. Either they lost interest in the subject or they are still working on it. (Or it’s there and I can’t find it.) However, I hate to see my research go to waste, so I decided to share here what I found out.
Louisville was indeed the first city to implement the Australian ballot. It was enacted by the Kentucky General Assembly on February 18, 1888. (Massachusetts would implement it shortly thereafter and it would be quickly followed by most of the other states in the country.) It was introduced by a Louisville legislator named Arthur M. Wallace and consequently the bill became known as the Wallace Law. Notwithstanding Wallace’s name being attached to the bill, it has become historical lore that Dembitz was the originator and author of the bill.
There are two reasons for this. The first is a letter that Dembitz wrote that was published in the January 14, 1892 issue of The Nation. Here is the relevant excerpt:
The article in the January Forum on the Australian Ballot reminds me that before it is too late I should put in my claim as first inventor, or, in other words claim the authorship of the first “Australian Ballot Law” in the United States … The skeleton of the act was read by me, with comments upon its main features, at a meeting of the “Conversation Club,” one of the two leading literary societies of Louisville, in October, 1887. Mr. Arthur Wallace had been elected to the Legislature from Louisville in August of that year, and had resolved to put through a radical measure of reform. He knew that I took an interest in the subject, and that I had some experience in framing municipal laws. I was then Assistant City Attorney, and drawing charter amendments was in my line of duty. But this particular amendment was not of the kind which the authorities would request me to frame; in fact, the men most powerful in the city councils were bitterly opposed to it.
In conference with Mr. Wallace, I drew up the bill substantially as it passed, yielding those points to him, of course, which he insisted on; all but the new criminal clauses, in which, knowing the laxity of our punitive justice, I felt very little interest. Mr. Wallace, by giving up all and every private object, and concentrating his endeavors solely on the great object of reform, succeeded, with the aid of the country members, in getting the bill passed…
Dembitz probably repeated this claim a number of times orally and in print, but the other historically significant place this claim appeared was in the entry for Dembitz in the Funk and Wagnalls’ early 20th century The Jewish Encyclopedia, which states plainly:
In 1888 Dembitz drafted the first Australian ballot law ever adopted in the United States, to govern elections in Louisville.
As a result, Dembitz’ claim is generally accepted and is continually repeated. It is in various web pages, it is in The Louisville Encyclopedia, and it is even in Melvin Urofsky’s authoritative biography of Dembitz’ nephew. And it is in the only reference source that seems to matter any more: Wikipedia. (Or at least it was as of this writing.) This isn’t too surprising since most of its Dembitz article is lifted directly from The Jewish Encyclopedia — which probably explains its disconcerting use of the present tense about a man who has been dead for over a hundred years.
The only problem with all this is that it probably isn’t true. Arthur Wallace, the man whom the act was named after, certainly didn’t think so and he took pains to say so in an article in the January 24, 1892 issue of The Louisville Courier-Journal and in a letter that was published in the February 4, 1892 issue of The Nation. Wallace considered the creation of the bill as a joint effort of four people, with Dembitz playing a relatively minor role. The Courier-Journal article goes into detail about the matter:
… I got my first idea of applying the Australian ballot system to our elections from an article by Mr. Henry George in the North American Review , some months before my election to the Legislature. About that time I spoke to Hon. F. P. Strauss about the matter and he promised to aid me in drawing such a law if I were elected in the ensuing August election. I next asked Judge B. F. Buckner to give me his opinion on the constitutionality of such a measure, which he did, citing authorities in its favor.
Soon after my election … Frank Strauss and I set to work on the proposed bill, using a copy of the Australian ballot law that he had gotten from Hon. Joshua F. Bullitt, Jr. We had worked at the bill for fully six weeks when Mr. Dembitz happened in Mr. Strauss’ office on business. While he was in the room I told him of the work on which we were engaged, and upon his expressing interest in our work, I asked if he wouldn’t assist us, and he consented to do so. After this I had about three or four conferences with Mr. Dembitz at his residence, during which time the first twelve sections of the bill were drawn up, the Australian law being as closely adhered to as circumstances would permit, the alterations being made at my suggestion, owing to my practical knowledge of the workings of our existing system. This ended Mr. Dembitz’s connection with the bill, and the work done in conference with him was afterward revised and completed by Judge Buckner, Frank Strauss and myself, who added upward of twenty sections, and the completed bill was shown by me to Messrs. Dembitz and C. B. Seymour before its introduction.
…As I have previously said, I received as much aid from Judge Buckner and Frank Strauss as from anybody else in framing the bill which I conceived. I have, on all occasions that offered, expressed my grateful appreciation to the three gentlemen that assisted me to frame the bill, and I think Mr. Dembitz should recognize that to the four of us belongs the credit of the framing of the “Wallace Law” and not to any single individual. In fact, that law would have been framed and passed even had Mr. Dembitz never heard of it.
The article concludes with letters from Strauss and Buckner that collaborate Wallace’s version of events. I have been unable to find any printed response from Dembitz to either the Courier-Journal article or the Nation letter. The article and letter seem pretty convincing to me but history has determined otherwise. Given the prevalence of Demitz’ claim in books and on the Internet, it seems unlikely that Wallace’s version of events will ever take hold.
There is an interesting footnote to all of this. In researching the matter I came across the book Deliver the Vote: A History of Election Fraud, and American Political Tradition 1742-2004 by Tracy Campbell (no relation) Carroll and Graf, 2004. Professor Campbell devotes a chapter to Louisville politics and the efforts of reformers to combat election there. After briefly mentioning the passage of the Wallace Law (interestingly he makes no mention of Dembitz) Campbell describes how the Democratic machine came under the control of brothers, and burlesque theater owners, John and James Whallen. The Whallens adapted to the new law and quickly adopted new and increasingly brazen tactics to control the city’s elections, eventually culminating in the 1905 election, which was so blatantly corrupt that the results were thrown out by the state’s Court of Appeals. And who named as one of the Whallens’ bagmen who was handing out stacks of cash to election officers? None other than former state legislator and reformer Arthur M. Wallace. Maybe his account on the bill’s creation isn’t so trustworthy after all.
Update: After telling my colleague Kurt Metzmeier about this post, he mentioned that he had taken some pictures of the Whallen brothers’ crypt in St. Louis Cemetery and he has graciously allowed me post one them here. If you look closely you can even see a picture of Jim, the younger brother. Arthur Wallace’s connection to the Whallen brothers must have been strong, for when Jim Whallen died in 1930, Wallace was one of his pallbearers.
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It’s not every day you get a call from the White House. And since it isn’t likely to happen to me again, I figured I might as well write about it here. The incident didn’t end the way I had hoped it would, but at least I got a semi-interesting story out of it.
It happened this last Monday night, about three hours after I had gotten off from work. I got a call from Will, one of my co-workers at the library. He apologized for calling when I was off work, but he said one of the speechwriters for President Obama had called from the White House. They wanted to verify a Brandeis quote and they needed it done that night. So I called her back. It turned out that she and her co-workers were working on a speech for the President and they wanted to use what they thought was a Brandeis quote: “The most important office is that of public citizen. It is even more important than the office of president or prime minister.” Or something to that effect. The problem was that they couldn’t find any attribution on the web and as a result, a number of the speech writers were convinced that it was apocryphal. So she was asking me if I could verify that that was something Brandeis had really said and point out where and when it had happened. Oh, and could I do it in the next hour or two?
Well, sure. The only problem was that I was a mile and a half from home and I was on foot. So I had to (quickly) walk back to my house and then hop into my car and drive back onto campus. It didn’t take me too long to track it down and I soon was able to tell them that the quote came from an article in the April 14 issue of the Boston Record and the full quote went like this:The most important office and the one which all of us can and should fill is that of private citizen. The duties of the office of private citizen cannot under a republican form of government be neglected without serious injury to the public.
The speech writer seemed a little disappointed. Was I sure there wasn’t any mention of the office of president? Nope, that somehow got added on by later people. I asked when the speech was going to be and if this meant that the quote wasn’t going to be used. She said that the speech was going to be sometime later this week and that they would probably paraphrase the quote.
And that is exactly what happened. President Obama used it in his speech to the Clinton Global Initiative yesterday:As we do every time this year, Presidents and Prime Ministers converge on this great city to advance important work. But as leaders, we are not the most important people here today. It is the civil society leaders who, in many ways, are going to have the more lasting impact, because as the saying goes, the most important title is not president or prime minister; the most important title is citizen.
Paraphrased indeed and no mention of Brandeis. Oh well. At least I get to say I hand a hand in the writing of a presidential speech. That’s not quite accurate but then neither is their quote.
She had also asked me to email her a copy of the newspaper article and since I have it at hand I figured I might as well post it. It’s an interesting read. The quote was part of Brandeis’ response to the rumor started by another newspaper that he was planning on running as a candidate for mayor of Boston. Apparently the other newspaper accused Brandeis of representing some corrupt corporations among other things. The accusations are interesting as is Brandeis’ measured response to them.
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A new issue of the Journal of Supreme Court History has come out and as is often the case, that means there is a new article about Louis D. Brandeis. This issue’s (volume 39, number 2) article was written by Jessie Steffan while she was a law student (she is now a clerk at the District Court for the Eastern District of Missouri) and it won the Supreme Court Historical Society’s 2013 Hughes-Gossett student prize. Titled “Doing Brandeis Justice: the Development of the Liebmann Dissent.” Steffan attempts to reconcile a seeming paradox that has perplexed many commentators: how a man famous for his stance against monopolies could uphold a state law that seemed to promote monopolies in a particular business (in this instance, ice manufacturers in Oklahoma.) Ms. Steffan argues that there is no contradiction at all and buttresses her case with looks at previous opinions and articles written by Brandeis as well as his views on public utilities versus private businesses. She makes a well reasoned argument and it makes for compelling reading for anyone interested in learning more about one of Brandeis’ most famous dissents. Once again, since the article appeared in the Journal of Supreme Court History, it will be hard to find. It is available online, but that link will likely not for anyone who does not have access to the Wiley Online Library. Everyone else is going to have to read a paper copy at their local law library. Or buy a subscription to the journal.
Another nice thing about Ms. Steffen’s article is that it led me to another article about the case that I was not previously aware of. Thirteen years ago historian Nigel Anthony Sellars published an article titled “‘Cold, Hard Facts’: Justice Brandeis and the Oklahoma Ice Case” (63 Historian 249-267). This article is a behind the scenes look at the facts of the case. Just who was Liebmann and why did he refuse to buy a license to manufacture ice? And why did Oklahoma, that “laboratory of democracy”, think that ice needed regulating anyway? The answers are all here and they give some interesting background to the decision. This article is also available through the Wiley Online Library.
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We are always on the lookout here at the University of Louisville Law Library for items to add to our collection of Brandeis papers. We get the occasional stray letter or pamphlet but for the most part since our collection is already so large, there aren’t many significant items left to acquire. So there are times when we add items to the collection that are somewhat peripherally related to the collection. As is the case with our latest acquisition, an item that I am frankly somewhat conflicted about.
It is a broadsheet published by a man named Robert Edward Edmondson in 1935 titled Justice Brandeis Unfit?. It is a nasty piece of work. It is a piece of anti-Roosevelt and NRA propaganda with an emphasis on Brandeis’ position on the Supreme Court and his alleged role as the architect of the NRA. But it is primarily a piece of anti-Semitic propaganda. There was, according to Edmondson, a Jewish conspiracy to overthrow the government and hand it to the Communists. To support his thesis, Edmondson uses newspaper editorials, out of context quotes from Brandeis’s writings and, of course, the Protocols of the Elders of Zion. But it wasn’t just Brandeis who gets vilified. Seemingly every Jewish intellectual of the day was part of the conspiracy: Harold Laski, Felix Frankfurter, Benjamin Cardozo, Albert Einstein and Stephen Wise all get name-checked. Even Brandeis’ daughter Susan is dragged through the mud. Among her crimes were the facts that she was a member of the ACLU and that she kept her maiden name after she got married!
I had never heard of Edmondson before we purchased this broadsheet, so I had to look him up in Wikipedia. He was journalist, and naturally a Nazi-sympathizer, who published many of these pamphlets that “exposed” the Jewish/Communist conspiracy to take over America. He believed that fluoridation of drinking water was part of the plot and he also published works that “proved” that Roosevelt and Churchill were Jewish.
I feel a little uncomfortable adding this man’s ravings into our collection, but there is value in having it. It helps researchers to know what Brandeis’ critics were saying about him, even when some of those critics were full on crazy. And the collection already has other pieces of this nature that had been collected by Brandeis himself. And, unpleasant as it is to look on it occasionally, it serves as a good example of the type of attitude that Brandeis probably had to deal with every day.
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While browsing through our collection of Louis D. Brandeis papers, I stumbled across a remarkable letter written by Brandeis’ fellow justice Benjamin Nathan Cardozo. Since there does not appear to be any published collections of Cardozo’s letters, I decided to post it. While not historically or legally significant, I found the letter interesting for a couple reasons. Cardozo has always looked so stern in all of the photographs I have seen of him, so it was a pleasant surprise to see how witty and playful it was. But at the same time, it is a rather sad letter. Written in July 1935, just a few weeks after suffering a heart attack, he writes of his recovery and his frustration with the various doctors and nurses attending him. He would recover enough to return to court the next term, but this was the beginning of the end. He never regained his full strength and he would die from a stroke three years later the age of 68.
I am providing a transcript of the letter below, along with a couple footnotes. Below that are the scans of the 4 pages of the letter for those who want to read the original. Unlike Brandeis, Cardozo’s penmanship is very clear and easy to decipher, although there are a couple places where I had to do some guesswork.
July 24, 1935
Dear Justice Brandeis,
It is good to hear from you and to learn of your well-being. You have been often in my thoughts, but I have put off writing to you till I could send a final report as to my health which hasn’t been 100% as it should be.
The doctors found me in poor shape when I came here from Washington, and before I knew what they were up to, they had put me to bed with a day nurse and a night one and all sorts of unconstitutional restraints upon fundamental liberties. Their tyranny proved to be beneficial, for I have made steady progress toward recovery. The nurses – praise be to God – have now departed. I feel much as the French must have felt upon the fall of the Bastille. A good many arbitrary and unconstitutional restraints still vex me: up to date, I have not been allowed beyond the porch, and am put to bed like your grandchildren at supper time – very likely they sit up later. Even so, the stream of liberty is widening.
Your letter gives me welcome hints of books worth reading. I have before me now “The Legacy of Greece.” My race consciousness was disturbed when I looked over the titles of the series and observed that I had not yet read “The Legacy of Israel.” What you write of it will move me to repair that omission. I read Dr. Kaplan’s book  last summer, but Dr. Levinthal’s  is in my library at Washington; I neglected to bring it with me. When I consider my leisure, I am chagrined that I haven’t read more than I have. It is astonishing how doctors and nurses make inroads on one’s time, so that the day passes with nothing done. And then the “certs” we always have with us.
Thanks for your letter and cordial greetings to Mrs. Brandeis, your daughter and the other members of the Chatham household.
 Edited by Richard Winn Livingstone, Clarendon Press, 1921.
 Edited by Edwin Robert Bevan, Clarendon Press, 1927.
 My colleague Kurt Metzmeier has speculated that is Judaism as a Civilization by Mordecai Menahem Kaplan.
 I’m assuming this is The Jewish Law of Agency by Israel Herbert Levinthal. We have Brandeis’ copy of this book in our library which, apparently was given to him by Levinthal himself.
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The Journal of Supreme Court History can usually be counted to offer some new information on John Marshall Harlan and Louis D. Brandeis, and their latest issue (volume 39, number 1) does not disappoint in that regard. The first article in the issue is titled “Plessy v. Ferguson: the Effects of Lawyering on a Challenge to Jim Crow” and it is by Seton Hall history professor Williamjames Hull Hoffer. Harlan doesn’t actually figure much in the article, but nevertheless it is a fascinating look at the events that lead up to the case and the legal arguments that were used before the Supreme Court.
Brandeis is name-checked in two articles that are not specifically about him. The first, “The Justice Who Changed His Mind: Oliver Wendell Holmes, Jr. and the Story behind Abrams vs. United States” is by Thomas Healy who is also from Seton Hall. Healy discusses the evolution of Holmes’ views on free speech and the behind the scenes efforts of friends like Harold Laski and Learned Hand to change his mind . He makes a strong argument but I suspect that he gives short shift to Brandeis’ influence, which is hard to quantify. There is plenty of documentary evidence (letters etc.) of the Hand/Laski campaign and Healy makes good use of it. Since Brandeis saw Holmes nearly everyday during the Supreme Court’s terms (they would walk home together at the end of each day) there was no need to write each other. It looks to me that Brandeis was at first content to follow Holmes’ lead on First Amendment cases but then as his thinking on the subject changed, he was able to pull Holmes along in his wake. But without any written evidence that assertion would be difficult to prove.
Brandeis’ presence is even fainter in the third article, “Felix Frankfurter and his Proteges: Re-examining the ‘Happy Hot Dogs'” by Sujit Raman. Raman discusses Frankfurter’s cultivation of Harvard Law School’s brightest students into his inner circle and then into various government positions, such as clerkships for Brandeis and Holmes. Many of his former clerks made no secret about how much they were influenced their time with Brandeis, but they were just as influenced by Frankfurter and his placement of them in key positions influenced the federal government for many years, particularly during the New Deal.
And finally, an article from the latest issue of the Notre Dame Law Review. I have mentioned David Bernstein before. He has been writing a lot about the early 20th century Progressives, and how he feels they were anti-individual rights. His latest article is about Brandeis again and is titled “From Progressivism to Modern Liberalism: Louis D. Brandeis as a Transitional Figure in Constitutional Law” (volume 89, number 5 of the Notre Dame Law Review, pp. 2029-2050, also available on SSRN.) In it, he outlines what he views as Brandeis’ evolution as a Holmes-style Progressive to something of a bridge to the “mid-century legal liberals.” (Interestingly, he also credits Brandeis with shaping Holmes’ views on free speech. I wonder if he will still feel that after reading Healy’s article.) Well written and a thought-provoking read, this article provides more ammunition in Bernstein’s campaign against early 20th century Progressivism.
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