The time between Woodrow Wilson’s nomination of Louis D. Brandeis to the Supreme Court to his confirmation by the Senate holds the record for the longest Supreme Court nomination. (Some have argued that Merrick Garland has surpassed that record, but since the Senate never took any action towards the nomination–let alone actually confirming him–I don’t think his nomination is comparable.) Just why did his confirmation take so long? I will attempt to answer that question in two posts. In this post, I have created a timeline of all of the major events that place during the confirmation process. In the follow up post, I have listed all of the controversies and arguments used by his opponents to keep him off of the Court. The two posts can be read separately, but as each informs the other, it might be best to have them both up in separate tabs for easy referrals.

(I have gathered most of the information from three books: Louis D. Brandeis: A Life by Melvin I. Urofsky, Justice on Trial by A. L. Todd, and the transcripts of the Senate Judiciary Subcommittee’s hearings, pithily titled Nomination of Louis D. Brandeis. Hearings before the subcommittee of the Committee on the Judiciary, United States Senate, Sixty-fourth Congress, first session, on the nomination of Louis D. Brandeis to be an associate justice of the Supreme Court of the United States, April 19, 1916 and May 31, 1916. The Urofsky and Todd books are both great reads. The transcripts are every bit as dry as they sound and will probably only of interest to hardcore researchers. Having said that, however, the page numbers listed below refer to pages from the transcripts.)

January 28, 1916: Woodrow Wilson announces to the Senate that he is nominating Louis D. Brandeis to the Supreme Court.

January 31, 1916: A subcommittee of the Senate Judiciary Committee is formed to investigate Brandeis’s fitness for the Court. It is made up of three democrats and two Republicans: Democrat William Edwin Chilton from West Virginia was the chairman. He was joined by fellow Democrats Duncan Fletcher of Florida and Thomas J. Welch of Montana. The two Republicans were Clarence Clark of Wyoming and Albert Baird Cummings of Iowa.

February 9, 1916: The subcommittee meets for the first time. The first witness is Clifford Thorne, the chairman of the Iowa Board of Railroad Commissioners. Thorne was one of the lawyers representing the shippers in the 5 Percent Rate Case. Since Brandeis had represented the shippers in a previous Interstate Commerce Commission [ICC] case, Thorne assumed that Brandeis would automatically take their side in this case, even though the ICC had made it abundantly clear that he was brought in as an independent expert. Thorne was shocked when Brandeis sided with the railroad companies and he accused Brandeis of double-dealing. John Eshleman, the Lieutenant-Governor of California, was the second witness. He also represented the shippers in the 5 Percent Rate Case, but he testified that Brandeis acted in the case with perfect impartiality. The third witness was Joseph Teal, a lawyer from Oregon, who had read the transcripts of the Five Percent Rate Case, and also testified that Brandeis had acted impartially. (pp. 1-74 of the April 19, 1916 volume.)

February 10, 1916: The second day of subcommittee hearings. The first two witnesses were James W. Carmalt and Frank Lyon, both of whom worked for the ICC and were involved with the 5 Percent Rate Case. They both testified that Brandeis had performed exactly as the ICC had requested. The third witness was Thomas Spelling, an attorney from New York City, who had worked with Brandeis on an earlier case before the ICC. The two clashed on strategy and Spelling thought Brandeis was haughty and insulting in his dealings with him. The final witness was Clarence W. Barron, the owner of the Dow Jones Company and the Wall Street Journal. The Wall Street financiers were horrified by the thought of Brandeis being appointed on the Court, and Barron was fully aligned with their concerns. Barron had compiled a file full of Brandeis’s alleged misdeeds and he testified that Brandeis’s conduct in matters like the United Shoe Machinery Company trust, the Warren family will, the Lennox family bankruptcy case, the New Haven Railroad fight, and the Equitable Life Assurance matter, showed that he was unfit for the court. These allegations set the tone for the rest of the hearings and they would resurface repeatedly over the next few months. (pp. 75-134 of the April 19, 1916 volume.)

February 11, 1916: Senator and Brandeis foe, Henry Cabot Lodge inserts a letter from various Massachusetts residents opposing Brandeis’s nomination into the Congressional Record.

February 15, 1916: The third day of subcommittee hearings began with a reading of a telegram by Charles S. Mellen, who had been president of the New Haven Railroad. Barron had claimed that Brandeis had been hired by the New Haven’s competitors to drive them out of business. The subcommittee extended an invitation to Mellen to testify on the matter. But Mellen declined to come, stating in his telegram: “I am not at all unfriendly to Brandeis, and I know nothing of his career except hearsay.” The first witness was Boston lawyer Hollis Russell Bailey, who testified about the Warren family will case. Bailey thought Brandeis made a mistake by trying to represent the entire family. The other witness of the day was Sidney Winslow, the president of the United Shoe Machinery Company, who accused Brandeis of being duplicitous in his dealings with the company. (pp. 135-169 of the April 19, 1916 volume.)

February 16, 1916: The fourth day of subcommittee hearings were entirely taken with more testimony from Sidney Winslow about the United Shoe Machinery Company. Also of note this day was the appearance of attorney Austen George Fox, who had been hired by men opposed to Brandeis’s nomination to bring in and question like-minded witnesses. Fox’s arrival marks a Rubicon in Congressional politics. As Todd states on page 112 of Justice On Trial: “Never before in American history had a President’s nomination of anyone to any office provoked this kind of resistance.” George Anderson, an old colleague of Brandeis’s also joins the hearings as the attorney representing Brandeis’s side. (pp. 170-261 of the April 19, 1916 volume.)

February 17, 1916: The fifth day of subcommittee hearings. Senator Clarence Clark leaves the subcommittee and is replaced by California Senator John Downey Works. Brandeis’s law firm partner Edward McClennen joins the staff as an assistant to George Anderson, while Kenneth Spence starts assisting Fox. The first witness was Boston attorney Moorfield Storey, who repeated a lot of hearsay and claimed that Brandeis had a reputation in the Boston bar as not being trustworthy. He also testified under questioning that he would have handled the Warren will case in much the same manner as Brandeis did. The second witness was Boston lawyer Sherman Whipple, who defended Brandeis’s handling of the Warren will case. He also stated that Brandeis handled the Lennox Bankruptcy correctly, but did a poor job of communicating the matter with members of the Lennox family. It was Whipple’s testimony that gave rise to the phrase “counselor to the situation,” which is often used to describe Brandeis’s approach to the practice of law.  The final witness was New York lawyer Moses J. Stroock, who was involved in the Lennox will case. (pp. 262-316 of the April 19, 1916 volume.)

February 18, 1916: The sixth day of subcommittee hearings. The only witness was Dr. Patrick Lennox, who was brought in to testify about the Lennox bankruptcy case. However, he claimed to know nothing of the matter and was quickly let go. (pp. 317-323 of the April 19, 1916 volume.)

February 24, 1916: The seventh day of subcommittee hearings. The first witness was Mark Sullivan, the editor of Collier’s Magazine, who testified that the magazine had hired Brandeis to represent it at the Ballinger-Pinchot hearings, and that there had never been any attempt to hide the fact. The second witness was New York attorney Waddill Catchings who testified that there was no connection between Brandeis’s actions in the Illinois Central Railroad proxy fight and his later campaign against the New Haven Railroad.The final witnesses of the day were Henry T. Richardson and Henry M. Williams, who were both lawyers involved in the Gillette Safety Razor Company reorganization. Neither could provide any improprieties on Brandeis’s part. (pp. 325-384 of the April 19, 1916 volume.)

February 25, 1916: The eighth day of subcommittee hearings. Mark Sullivan reappeared briefly to discuss the Ballinger-Pinchot hearings. The only other witness was New York Supreme Court Justice William J. Kelley, who flatly denied the charge that Brandeis had been hired to wreck the New England Railroad in the 1890s. (pp. 385-452 of the April 19, 1916 volume.)

February 26, 1916: The ninth day of subcommittee hearings. The first witness was Norman Hapgood, who was the editor-in-chief of Collier’s Magazine during the Ballinger-Pinchot hearings. He also denied that there was anything hidden about the magazine hiring Brandeis to represent them. The only other witness was William Youngman, the lawyer who represented Edward Warren in the Warren family will case. He claimed that Brandeis had somehow tricked Samuel Warren into accepting a will that cheated the other Warren family members of their fair share of the estate. (pp. 453-607 of the April 19, 1916 volume.)

February 29, 1916: The tenth day of the subcommittee hearings fixated mosty on Brandeis’s character. Boston lawyers Edward Hutchins and Albert Pillsbury testified that Brandeis had a reputation among the Boston bar as being “not straightforward,” although, when pressed, they could not come up with a single example of underhandedness in any of their dealings with him. The New Haven Railroad’s attorney, Charles F. Choate, Jr., reiterated the charge that Brandeis had wrecked the New England and New Haven Railroads. Brandeis’s partner, Edward McClennen was the final witness of the day and he spent his time refuting charges against Brandeis in regards to railroad wrecking and the Equitable Life Assurance matter. (pp. 609-707 of the April 19, 1916 volume.)

March 1, 1916: The eleventh day of the subcommittee hearings. Stephen S. Gregory, a former president of the ABA, testified in favor on Brandeis’s nomination. The rest of the session was taken up by Edward McClennen, who defended Brandeis’s conduct in the United Shoe Machinery Company matter. (pp. 709-747 of the April 19, 1916 volume.)

March 2, 1916: The twelfth day of the subcommittee hearings. Boston lawyer, Francis Peabody, testified about Brandeis’s alleged bad reputation among the Boston bar. Newton D. Baker, the former mayor of Cleveland presented a memorial in favor of Brandeis’s nomination signed by many prominent people. Henry Moskowitz, a New York City social worker who was a witness to Brandeis’s handling of the arbitration of the 1910 New York garment workers’ strike, offered a tribute to Brandeis’s judicial temperament. Boston lawyers, Melvin O. Adams, Asa P. French, Thomas J. Boynton and Joseph Walker, testified that Brandeis had, in fact, a number of members of the Boston bar who regarded him highly. New Jersey lawyer Edmund A. Whittier testified about his work with Brandeis on the American Fair Trade League. Edward McClennen then took the stand to discuss the Lennox and Warren will matters. (pp. 749-845 of the April 19, 1916 volume.)

March 3, 1916: The thirteenth day of the subcommittee hearings was completely taken up with Edward McClennen’s discussion of the Warren will case and the Gillette Razor matter. (pp. 847-934 of the April 19, 1916 volume.)

March 4, 1916: The fourteenth day of the subcommittee hearings. William Whitman, a Boston merchant who worked on the reform of the Equitable Life Assurance Company, testified about Brandeis’s involvement in the matter. William H. Ingersoll, one of the founders of the American Fair Trade League, testified about Brandeis’s work for the organization. McClennen then returned to the stand to testify about the Gillette Razor matter, the Ballinger-Pinhot hearings, the 5 Percent Rate Case, the Old Dominion Case and the Lennox will case. (pp. 935-1022 of the April 19, 1916 volume.)

March 6, 1916: The fifteenth day of the subcommittee hearings. The only witness for the day was Dr. James Cannon, Jr. from the Anti-Saloon League, who had doubts about Brandeis’s commitment to Prohibition. (pp. 1023-1072 of the April 19, 1916 volume.)

March 7, 1916: The sixteenth day of the subcommittee hearings. Moses Stroock returned with his client Abe Stein to discuss the Lennox will case. James T. Lennox, the son of the owner of the Lennox tannery that had gone bankrupt, testified as to how he felt he had been cheated by Brandeis. (pp. 1073-1134 of the April 19, 1916 volume.)

March 8, 1916: The seventeenth day of the subcommittee hearings. Edward McClennen spent the day rebutting some of the various charges made against Brandeis. After he finished, the subcommittee declared the hearings over in the belief that they were finished. They were mistaken.

March 14, 1916: The eighteenth day of the subcommittee hearings started with Austen George Fox reading three letters written by ex-President Taft, and six other men who all had been presidents of the American Bar Association, which stated that they did not believe that Brandeis was fit to sit on the Supreme Court. (pp. 1226-1227) Boston stock broker William F. Fitzgerald testified about the Old Dominion Copper Company matter. He was then followed by Edward McClennen, who refuted many of Fitzgerald’s claims. (pp. 1227-1266 of the April 19, 1916 volume.)

March 15, 1916: The nineteenth day of the subcommittee hearings featured three witnesses who testified against Brandeis. The first one was Charles Sumner Smith, the former president of the Old Dominion Copper Company, who complained about the high fee Brandeis charged in the matter. William Youngman then returned to make more accusations against Brandeis’s handling of the Warren family will. The final witness of the day was Edward R. Warren, Brandeis’s former colleague on the Public Franchise League, who complained about how Brandeis resolved the Boston gas utility rate problem. The subcommittee, believing that they had finally heard from all of the witnesses, declared the hearings to be definitely over. They were wrong again. (pp. 1269-1316 of the April 19, 1916 volume.)

April 3, 1916: The subcommittee release their report on the hearings and votes along party lines (3-2) to approve Brandeis’s nomination. (pp. 175-371 of the May 31, 1916 volume.)

All through April, the Senate Judiciary Committee keeps putting off the vote on Brandeis.

May 8, 1916: Feeling the nomination process needs a boost, President Wilson sends the Judiciary Committee a letter reaffirming his commitment to Brandeis, and urging them to approve his nomination.

May 10, 1916: At a Judiciary Committee meeting, Republican Senator from Utah George Sutherland repeated a rumor that Brandeis had acted as counsel for a chain of drug stores called the United Drug Company, that was supposedly considered by the Justice Department to be an illegal trust.

May 12, 1916: The Judiciary Subcommittee meets yet again. Louis Liggett, one of the executive officers of the United Drug Company, and his lawyer Frederick Snow, testified about how they had consulted Brandeis over whether the formation of the chain would violate the Sherman Act. Brandeis had felt that the combination would not be big enough to violate the law and the Justice Department had not yet looked into the matter. The final witness was ICC Commissioner (and John Marshall Harlan’s son) James S. Harlan, who testified that Brandeis had been hired to serve as an independent expert in the 5 Percent Case hearing, and not as a representative for either side. This ended up being the actual last day of the subcommittee hearings. (pp. 5-174 of the May 31, 1916 volume.)

May 24, 1916: The Judiciary Committee votes along party lines (10-8) to approve Brandeis’s nomination.

June 1, 1916: The full Senate confirms Brandeis’s nomination, 47-22. One Democratic Senator voted against Brandeis, claiming that he “he did not regard [Brandeis] as a man of judicial temperament.” Five Republican crossed party lines to vote in favor of Brandeis. 


This is the second part of a two part series where I give an in depth look in to why the confirmation of Louis D. Brandeis’s nomination to the Supreme Court took so long. Part 1 was the actual timeline of events from Wilson’s nomination to Brandeis’s swearing in. In this part I will explore all of the accusations/controversies that the forces opposed to Brandeis’s nomination brought up during his confirmation hearings.

(Much of the information for these posts comes from the excellent books Louis D. Brandeis: A Life by Melvin I. Urofsky and Justice on Trial by A. L. Todd. Anyone wanting more information about the confirmation process are strongly encouraged to consult those 2 books.)

The Five Percent Rate Case

In 1913, a number of railroad lines applied to the Interstate Commerce Commission (ICC) for a 5% increase to the rates they charged their freight customers. Brandeis, who had represented the shippers in a previous hearing, agreed to an invitation to serve as special counsel to the ICC to ensure that both parties were adequately represented. (Incidentally, the commissioner who extended the invitation was James S. Harlan, John Marshall Harlan’s son.) The shippers were represented in this hearing by, among other lawyers, Clifford Thorne, who had worked with Brandeis on the earlier case. After sifting through all of the facts, Brandeis agreed that the railroad companies did, in fact, need the increase. Thorne, despite all evidence to the contrary, believed that Brandeis was representing the shippers again, and accused him of double dealing.

The Warren Family will case

In 1888, the father of Brandeis’s law partner, Samuel D. Warren, died. The elder Warren left the ownership of his paper mill to his wife and five children. Together, Brandeis and Warren worked out a plan that put the company in a trust so that its profits would be shared equally among the family members, while Samuel ran the business with a board made up of family members and some outsiders overseeing him. This plan was agreed to by all of the family members — including the brother Ned, who lived in England at the time. After a time, Ned began to feel that he was not getting his proper share of the profits, and sued, claiming that Samuel had set up the trust to his benefit over the family’s. Brandeis was tied up in Washington with the Ballinger-Pinchot affair (see below), so he, with Samuel’s approval, had Edward McClennen represent Samuel in the suit. The case ended prematurely when Samuel committed suicide. Afterwards, the rest of the family bought out Ned’s share in the trust.

Since the case ended early, Ned’s claims of underhanded actions by Brandeis were never formally disproved and the resulting rumors surrounding the case stained Brandeis’s reputation in the Boston bar.

Richard W. Painter has written an article that discusses the intricacies of the trust Brandeis devised, as well as the impact the trust had on his confirmation hearings.

The Ballinger-Pinchot Affair

In 1909, President Taft fired Gifford Pinchot, the head of the U.S. Forest Service, after Pinchot published an article in Collier’s Magazine that accused Secretary of the Interior Richard Ballinger of colluding to sell public lands in Alaska to industrialists. The article led to a Congressional hearing, during which Collier’s hired Brandeis to keep them from being charged with libel.

The most dramatic part of the hearings came when Brandeis was able to prove that President Taft had lied about a matter relating to the firing, thus forcing Taft to issue a public retraction. The hearings made Brandeis nationally famous, but they made things difficult for Brandeis after his nomination as many Republicans refused to forgive him for embarrassing the President.

Two charges against leveled against Brandeis during his confirmation hearings came from this affair. First, some people tried to claim that Brandeis tried to hide or deny the fact that he had been hired by Collier’s. He was also accused of bribing or coercing a government official into giving testimony that was damaging to Taft and Ballinger.

The United Shoe Machinery Company Trust

The United Shoe Machinery Company was the result of the merger of several companies that sold machinery for making shoes, one of which had been a clients of Brandeis’s firm. Brandeis joined the board of directors so that he could continue to look after their interests. The United Shoe Machinery Company enacted a policy that prevented shoe manufacturers that leased their equipment from also using machinery from any other company–a type of contractual restriction known as a “tying clause.” When the Massachusetts legislature considered a bill that would outlaw tying clauses, Brandeis lobbied against it, claiming that even though the United Shoe Machinery Company used them, that did not mean that they were a monopoly. Shortly after that, Brandeis resigned from the board, possibly due to discomfort from their policies. Years later, after the United Shoe Machinery Company’s practices became more monopolistic, another client of Brandeis’s ran afoul of the United Shoe Machinery Company and so he asked Brandeis to intervene. While doing so, Brandeis accused the company of having become a monopoly, thus leading to Brandeis’s critics to accusing him of double dealing. A more detailed description of this matter can be found elsewhere in this blog.

The Lennox Bankruptcy Case

Brandeis handled the bankruptcy case of a tannery owner named Patrick Lennox. Brandeis tried to ensure that all of the parties involved, including the creditors, were treated equitably–a fact that may not have been communicated strongly enough to Lennox’s son, who complained that his interests got short shift. Fellow Boston lawyer Sherman Whipple’s relating of this case to the subcommittee is what gave rise to the phrase “counselor to the situation.”

The New Haven Railroad Fight

In the early 20th century, the New Haven Railroad tried to gain a monopoly on all rail traffic in Massachusetts. Brandeis led a multi-year fight, first opposing the merger, then trying to dismantle it after it occurred. Brandeis’s motives in the fight were related to his opposition to bigness and monopolies, but rumors abounded (many of which were spread by people hired by the New Haven) that he had been secretly hired by other railroads to destroy the New Haven. Many conservative leaders in Boston were in favor of the merger and this fight is one of the most prominent reasons that many of Brandeis’s former allies turned against him. A more in-depth discussion on this struggle can be found in two posts on this blog.

The Illinois Central Railroad Proxy Fight

While Brandeis was fighting against the New Haven Railroad merger, two railroad barons were fighting for control over the Illinois Central Railroad. A New York law firm named Sullivan and Cromwell, which had a working relationship with Brandeis’s firm, retained the firm for help in acquiring proxy votes in Massachusetts for one of the barons. However, it was one of the other lawyers in the firm (George Nutter, of the now named Nutter, McClennen and Fish) who handled the matter, and only after Brandeis was satisfied that there was no conflict of interest with his New Haven fight.

The New England Railroad Proxy Fight

There were rumors that Brandeis had been hired to “wreck” the New England Railroad in 1892, while the New Haven Railroad was trying to take it over.

The Gillette Safety Razor Company Reorganization

In the years 1906 and 1907, Brandeis was involved in a couple lawsuits involving control of stocks in the Gillette Safety Razor Corporation. There were vague rumors that Brandeis had somehow acted duplicitously in the matter, but the opposing lawyers in the cases who were brought in to the subcommittee to testify on the matter offered no evidence to that effect.

The Equitable Life Assurance Matter

In 1905, a group called the New England Policy-Holders’ Protective Committee retained Brandeis to look into rumored abuses at the Equitable Life Assurance, which at the time was one of the largest life insurance companies in America. Brandeis’s findings caused him to push for the reform of life insurance companies as well as the laws governing them. As Brandeis’s firm had once represented the Equitable Life Assurance in Massachusetts on the behalf of a New York law firm, his attacks against the company were seen by many as unethical and two-faced.

The Anti-Saloon League

One of Brandeis’s first public service campaigns was to reform Massachusetts liquor laws in 1891. Lobbyists in favor of prohibition had convinced the state legislature to pass a series of onerous laws regulating the liquor trade, in the hope that this would be the first step in total prohibition. Brandeis  argued that overly strict liquor laws would just serve to create more crime. The legislature agreed and relaxed many of its laws. Brandeis’s actions were viewed as evidence by people in favor of prohibition that he would be unable to fairly judge cases involving prohibition if he were on the bench.

The Old Dominion Copper and Smelting Company

In 1905, Brandeis’s firm was handling the fairly routine matter of the merger of the Old Dominion Copper and Smelting Company with another company. Rumors swirled about Brandeis’s handling of the case, although most of the work was performed by Edward McClennen. Much was made about a statement Brandeis made to stock holder William Fitzgerald to get him to support the merger. Brandeis’s critics claimed the statement proved Brandeis’s avariciousness and double dealing, but Fitzgerald told the subcommittee that he felt the statement was completely innocuous.

The Boston Consolidated Gas Utility Rate Controversy

In 1903, various companies that supplied natural gas to Boston became consolidated into one company. A controversy arose as to what this new company should charge its companies. Edward Warren (who was not related to the Warren family of the will case discussed above) headed the Public Franchise League, which argued for the cheapest rates possible. Brandeis (who had formerly been a member of the Public Franchise League) represented the Massachusetts Board of Trade, and he successfully argued for a rate that he thought was fair for both the company and the consumer. Incensed by the outcome, and what he saw as Brandeis’s betrayal, would over the years continually accuse Brandeis of selling himself out to the gas company.

The United Drug Company Chain Stores

About a year before the hearings, the United Drug Company was in the process of buying up a number of smaller drug store chains across the country. Warned that they might be violating the Sherman Anti-Trust Act, a lawyer for the chain consulted Brandeis on the matter. Brandeis ended up writing a memo arguing that the chain’s acquisitions would not result in the creation of a trust. Brandeis’s memo was cited in the hearings as proof that he was not sincere in his anti-trust statements, but as the chain had not been prosecuted or charged by the federal government for violating the Sherman Act at the time of the hearings, nothing came of the accusations.

The American Fair Trade League

One of the tools Brandeis thought was essential to regulate competition was something called resale price maintenance, which would allow manufacturers to fix the price of their products. Brandeis worked closely with a group called the American Fair Trade League to promote this idea. Unfortunately, many people could not understand the difference between price maintenance and price fixing, which had been outlawed by the Sherman Act. Brandeis’s critics used his support for price maintenance as evidence of his insincerity when it came to regulating trusts. Harvard professor Laura Phillips Sawyer has written extensively on this subject, and a brief discussion of it can be found in the Legal History Blog.

Other Charges

In addition to these controversies, various attacks of a personal nature were made. Much was made about his reputation in the Boston bar, where he was supposedly considered by everyone to be underhanded and untrustworthy. People who only knew him by what they read in the newspaper claimed that he lacked “judicial temperament.” The most ironic argument from his critics was that even if he was innocent of all of the charges above, just the fact that he was suspected of being guilty of so many things proved his unfitness for the Court. Unstated, but lurking in the background: antisemitism. Brandeis never believed his Jewishness was an issue in his hearings and it was never mentioned publicly by any Senators, but given the rampant antisemitism of the time, it is hard to believe it was not a factor.

The Washington Post has a timely article about the creation of unemployment benefits in America and its surprising Brandeis connection. Paul Raushenbush, Brandeis’s great-grandson, has been researching for a book he is planning on writing about his family (I can’t wait to read that!). One of the stories he has uncovered is about how his grandparents, Brandeis’s daughter Elizabeth and her husband (also named Paul Raushenbush) created the country’s first unemployment benefit system in Wisconsin, which became the model of Congress’s national unemployment insurance policy. The story is another example of how Brandeis’s influence is felt to this day.

In February 1922, Louis Brandeis spoke to a small group of progressive activists. Apparently unsatisfied with his speech, he later (on the 25th) wrote a letter to Robert Walter Bruere, an investigative journalist and one of the organizers of the meeting. In the letter, Brandeis tried to clarify what he had attempted to convey at the meeting. The result is a crystallization of his views on how to effect social change and to improve the lives of workers, in order to make them more productive members of a democratic and free society. Excerpts from this letter have been quoted many times, but I felt it would be beneficial for people to present the letter in its entirety here.

My Dear Bruere:

I fear I was far from helpful to your fellows. Perhaps I should, at least, have lessened the chances of misunderstanding, if I had made of views vaguely stated or left to be implied, this summary:

Refuse to accept as inevitable any evil in business (e.g. irregularity of employment). Refuse to tolerate any immoral practice (e.g. espionage). But do not believe that you can find a universal remedy for evil conditions or immoral practices in effecting a fundamental change in society (as by State Socialism). And do not pin too much faith in legislation. Remedial institutions are apt to fall under the control of the enemy and to become instruments of oppression.

Seek for betterment within the broad lines of existing institutions. Do so by attacking evil in situ; and proceed from the individual to the general. Remember that progress is necessarily slow; that remedies are necessarily tentative; that, because of varying conditions, there must be much and constant enquiry into facts (like that being made by your Bureau1) and much experimentation; and that always and everywhere the intellectual, moral and spiritual development of those concerned will remain an essential–and the main factor–in real betterment.

This development of the individual is, thus, both a necessary means and the end sought. For our objective is the making of men and women who shall be free–self-respecting members of a democracy–and who shall be worthy of respect. Improvement of material conditions of the worker and ease are the incidents of better conditions–valuable mainly as they may ever increase opportunities for development.

The great developer is responsibility. Hence, no remedy can be hopeful which does not devolve upon the workers’ participation in, responsibility for the conduct of business; and their aim should be the eventual assumption of full responsibility–as in cooperative enterprises. This participation in and eventual control of industry is likewise an essential of obtaining justice in distributing the fruits of industry.

But democracy in any sphere is a serious undertaking. It substitutes self-restraint for external restraint. It is more difficult to maintain than to achieve. It demands continuous sacrifice by the individual and more exigent obedience to the moral law than any other form of government. Success in any democratic undertaking must proceed from the individual. It is possible only where the process of perfecting the individual is pursued. His development is attained mainly in the processes of common living. Hence, the industrial struggle is essentially an affair of the Church and is its imperative task.

1At the time, Bruere was the director of the Industrial Research in New York.

As the archivist for the John Marshall Harlan papers here at the University of Louisville Louis D. Brandeis School of Law, I will, from time to time, be contacted by someone wanting to know if we have anything relating to Harlan’s famous dissent in Plessy v. Ferguson. These researchers invariably end up disappointed. Harlan did not leave behind any drafts or notes on any of his decisions. About the only items we have relating to his time on the Court are newspaper clippings and letters from people expressing their reactions to various opinions. And, surprisingly, given the renown of Harlan’s dissent, there was precious little press coverage given to the case. It was generally accepted by the press at the time that the decision merely reiterated the Court’s earlier decision in the Civil Rights Cases.

As a result, Plessy v. Ferguson has been something of a black hole in legal history. But that is about to change with the upcoming publication of a remarkable book by Steve Luxenberg. The book’s full title gives an accurate description of its contents: Separated: the Story of Plessy v. Ferguson and America’s Journey from Slavery to Segregation.

Continue reading ‘An In-Depth Look at Plessy v. Fersguson’

I recently posted about the “New Brandeis Movement,” a collective of economists and antitrust lawyers who are arguing for a return to the idea that the dangers of trusts and monopolies was more than just a rise in consumer prices. If that movement can be said to have a manifesto, it would have to be The Curse of Bigness by Columbia Law School professor Tim Wu.

Wu doesn’t just borrow the title from one of Brandeis’s famous books, he also reclaims Brandeis’s antitrust philosophy and shows how it is still relevant in the 21st century. He starts with a short history of the practice and problems of trusts and how Brandeis and other Progressives developed the theory of regulating competition to prevent their abuses. He then gives a history of how the US government used the Sherman Act (and later Congressional updates) to break up various monopolies, leading to the highest standard of living for American citizens in history. He then spends the bulk of the book describing how Robert Bork and other proponents of the Chicago School of Economics misrepresented the legislative history of the Sherman Act to claim that Congress had only intended to protect consumers from predatory pricing, and that other shady practices, such as product bundling and the undercutting of competitors, were not only legal but were acceptable business practices. Eventually Republican administrations and many judges embraced this point of view, thus pretty much ensuring the end of any effective antitrust actions. The end result being companies in the cable, technology and pharmaceutical industries (just to name a few) are consolidating at a rapid pace, leaving consumers and workers at their mercies and creating the highest gap between the rich and the poor since the Depression. Or, as Wu calls it, the “New Gilded Age.”

Wu ends the book with a “Neo-Brandeisian Agenda”: 6 ideas that will, as Wu puts it, “help us return to an economic vision that prizes dynamism and possibility, and ultimately attunes economic structure to a democratic society.”

The Curse of Bigness is inexpensive, compact and eminently readable. And it has a surprise cameo appearance by John Marshall Harlan. Anyone with an interest in Brandeis, social justice and/or antitrust law should read it.

I have been waiting for years for someone to write a novel about Louis D. Brandeis. He was supposedly a fan of detective stories, so a mystery in which Brandeis solved a murder would seem a natural. So far nobody has filled that niche, but my friend Neal Rechtman has come close with his latest novel, The Ashwander Rules.

The Ashwander Rules is a suspense novel about Zeke Sherman, a Senator from West Virginia, who gets caught up in a political conspiracy when he is warned about a possible assassination attempt of the life of the Chief Justice of the Supreme Court. The title itself is obviously a nod to Brandeis, but Rechtman, who describes himself as an “amateur scholar of Brandeis,” suffuses the entire novel with Brandeis’s philosophy. Each chapter is headed with a quote from Brandeis and the novel touches on many themes near and dear to Brandeis’s heart: Zionism, the role of the private citizen, good government and the importance of voting, to name just a few. That Rechtman is able to weave all these threads into a suspenseful story is a testament to his writing.

The novel also serves as an introduction to the American Majority Party, Rechtman’s solution to what he sees as the crippling effects of the two party system on American democracy. And if that wasn’t enough, there are also a couple quick Bridge tutorials.

Fans of Brandeis will find much to chew on here.

One of the issues that Brandeis was most concerned with during his life was the harmful effect that trusts and monopolies had on American society. His most famous quote “We may have democracy, or we may have wealth concentrated in the hands of a few, but we can’t have both” can apply to corporations as well as to people (assuming that you take the non-Supreme Court view that there is a difference between the two.) Brandeis’s view towards what he called “the curse of bigness” was different from many of his contemporaries. While he approved of the Sherman Act, he felt that the best way to deal with monopolies, was to regulate competition rather than regulate business. Washington came around to Brandeis’s thinking, and this philosophy came to guide the government’s antitrust activities from President Wilson on through the 1970s.

However during that time, a counter-philosophy was rising in Chicago. In 1978, Robert Bork, an acolyte of Milton Friedman and the University of Chicago School of Economics, published The Antitrust Paradox, which argued against the regulation of competition and stated that consumer welfare should be the only legitimate concern of antitrust law. The Reagan administration embraced Bork’s views and the consumer welfare emphasis has been the accepted viewpoint of antitrust scholars and economists.

Brandeis’s philosophy came to be viewed as outdated and just plain wrong. However, during the past few decades, monopolies have been on the rise. More and more small and medium sized businesses have been bought out or forced out of the market, while the middle class has been shrinking and the wealth gap between the rich and the poor has continued to increase. As a result, a new generation of scholars and activists have asked a radical question: What if Brandeis had been right all along?

A group of journalists and lawyers associated with a think tank called Open Markets have been making the news lately with a series of articles and media appearances, arguing, among other things, that there are no such things as market forces and that economics is a political tool that can and should be used to reshape society. Because of their affinity with Brandeis’s philosophy, this movement began to be called the “New Brandeis Movement” and the name appears to be sticking.

“This Budding Movement Wants to Smash Monopolies,” an April 4, 2017, Nation article by David Dayen is a good introduction to this group. Ostensibly a recap of an economics conference at the University of Chicago, Dayen is clearly on the side of the “New Brandeisians” as he calls them, as he recounts the arguments of Barry Lynn and his cohorts from Open Markets. (I cannot find any reference to the term “New Brandeis Movement” before this article. Is it possible that Dayen originated it?)

“Inside the New Battle Against Google,” a September 17, 2017, Politico article by Danny Vinik outlines the history of Open Markets, while describing its emphasis on combating the evil of monopolies in technology, primarily Google, Amazon and Facebook. The article also discusses three people who appear to be the primary architects of the New Brandeis Movement.

The founder of Open Markets is Barry Lynn. Lynn’s awakening to the dangers of corporate concentration came in 1999 when he saw how an earthquake in Taiwan had reverberations in corporations across the world. He has since then wrote a number of books and articles about how antitrust law should be used to protect people from corporate overreaching. He founded Open Markets in 2011 to “to empower Americans to reclaim all the freedoms fundamental to a happy life as independent and fully engaged citizens.” This interview with Lynn gives a good look at the New Brandeisians’ view of 20th century American antitrust law.

Vink also mentions Matt Stoller, who describes himself as a policymaker. Stoller has helped write Congressional legislation, and has produced and starred in shows for MSNBC  and FX. He is a prolific author and has published stories in the New York Times, Politico, the Guardian, the Huffington Post, and Salon.

A rising star, recent Yale Law School graduate Lina Khan, recently made waves by publishing an article in the Yale Law Journal that stated that Amazon’s size and influence warranted a new approach to antitrust law. (“Amazon’s Antitrust Paradox,” 126 Yale Law Journal 564 (2017).) The article had an explosive impact and has garnered her a lot of media attention, including this New York Times article that profiles both her and the New Brandeis Movement.  She also recently published an article (“The New Brandeis Movement: America’s Antimonopoly Movement,” 9 Journal of European Competition Law & Practice 131 (2018),) that serves as a great primer to the movement’s philosophy.

Any movement that goes against 40 years of economic thought is going to face backlash, and the New Brandeis Movement has been getting it in spades. (Some economists have dismissed the movement by jeeringly referring to it as Hipster Economics.) But in this day of economic uncertainty, people are listening, and that includes politicians on both sides of the aisle.

On June 29, 2016, Elizabeth Warren gave a speech at an Open Markets event where she echoed many of the New Brandeis Movement’s themes. Not only did she quote from Brandeis’s dissent in Liggett v. Lee (288 U.S. 517), but she even came up with this Brandeisian nugget of her own: “Competition in American is essential to Liberty in America.”

In 1912, Brandeis helped Woodrow Wilson develop his ideas on monopolies for his election campaign, which ended up guiding the direction of antitrust for the next several decades. Given the New Brandeis Movement’s influence on Elizabeth Warren’s thinking, will history repeat itself 108 years later if Warren decides to run for President in 2020?

I have just received word that Alice Brandeis Popkin, Louis D. Brandeis’s only granddaughter, died on July 18, 2018. According to my sources, she passed away peacefully in her sleep, shortly after a harp recital that was performed in her room.

Alice was the daughter of Brandeis’s daughter, Susan, and her husband Jack Gilbert. She had two brothers and one cousin, Walter Raushenbush, the son of Brandeis’s daughter Elizabeth. The four children used to spend their summers with their grandparents in Chatham, a story I related in a previous post. Those childhood summers must have made a deep impression on her as she and her husband moved to Chatham after they retired.

Alice followed her grandfather’s footsteps in many other ways. She also became a lawyer (although she attended Yale rather than Harvard) and she devoted her professional career to public service work. She worked for the Peace Corps and the Environmental Protection Agency, as well as the Georgetown Institute of Criminal Law and Procedure. Even after retiring, she remained committed to public service and served on various local boards and committees of organizations around Chatham. This list of accomplishments just scratches the surface of a very full life. You can read a much more detailed description in her obituary.

She also shared her grandfather’s interest in (what is now named) the Louis D. Brandeis School of Law at the University of Louisville. She faithfully attended every function the school hosted that honored her grandfather (while her health permitted) and her presence helped promote interest in the events, the school and her grandfather’s legacy. The picture below is from 2001, when she attended that year’s Brandeis Medal dinner. She is standing in front of her grandparents’ graves at the law school with Samuel Dash, her friend and recipient of that year’s medal.

Alice Brandeis Popkin and Samuel Dash

Alice is survived by her brother Frank Gilbert and her cousin Walter Raushenbush, as well as her children, grandchildren and many cousins. She will be greatly missed by all.

I received a nice surprise last week. I went on a tour of the University of Louisville’s archives, and Carrie Daniels, the head archivist, had something on display she thought would interest me: two casebooks owned by Brandeis while he was at Harvard Law School. I was surprised because I had no idea they existed. Then I was flabbergasted when Carrie told me they used to be part of the law school’s collection, but that in 1982, the law school’s dean had given them to the University’s archives for reasons that are now lost to history. I, of course, wanted them back but was too polite to say anything. But then I was even further surprised the next day when Carrie emailed me offering to return them to our collection.

The covers of Cases on Pleading and Cases in Equity Pleading.

Both of the books are cheap editions that were published in 1875 so they are in pretty poor shape. 1875 is a significant year. That was the year that Harvard adopted the casebook method of teaching law (although many faculty members held out against it for many years) and it was also the year that Brandeis entered HLS, so he was among the earliest students to be trained that way.

Title page of Langdell's Cases in Equity Pleading casebook.

Christopher Columbus Langdell is credited with creating the casebook method, so it is significant to have a first edition copy of one of his casebooks (although the Equity Pleading casebook was not his first casebook.) The fact that Brandeis once owned it is just icing on the cake.

Two pages from Cases in Equity Pleading

But Brandeis did not just own the book — he covered it with annotations. Brandeis used the book for Langdell’s Jurisdiction and Procedure in Equity class, which I believe he took in his second year. (At the time Brandeis was at HLS, the program just took two years to complete.) Brandeis’s handwriting is fairly clear at this stage of his life (it would become nearly indecipherable later in his life) so a dedicated researcher could read Brandeis’s notes and get a pretty good idea of what Langdell’s classes were like. But it would be quite a chore. Despite being fairly legible, the handwriting is awfully small and there is so much of it! No wonder Brandeis’s eyes nearly gave out while he was in law school.

The cover page of Ames' A Selection of Cases on Pleading at Common Law.

The second casebook was James Barr Ames’ A Selection of Cases on Pleading at Common Law. Ames graduated from HLS just three years before Brandeis enrolled there. I am not sure what course this book was used for, but as you can see from the line below Brandeis’s signature, it was in his first year. It is not as heavily annotated as the Langdell casebook and the annotations on the cover page are quotes from throughout history about pleading. It is unclear whether the quotes were used in class or were found by Brandeis on his own.