Another Louis D. Brandeis Myth Debunked

15Nov15

When giving people tours of our archives of Brandeis papers here at the University of Louisville, we spend a lot of time talking about Justice James McReynolds. In fact, we probably spend too much time talking about him. Despite the fact that he was on the Supreme Court from 1914 to 1941, a tenure that completely overlapped Brandeis’, he is a relatively minor figure, both in terms of Supreme Court history and in Brandeis’ life. In a 1970 survey of law school professors and deans conducted by Albert Blaustein and Roy Mersky, McReynolds was voted as one of the 8 worst Supreme Court Justices of all time. And while they worked together briefly before either of them were appointed onto the Court, Brandeis and McReynolds were not friends or confidants. In fact, it would appear that they barely spoke to each other the whole time they were on the court together.

So why do we spend so much time talking about him? In a way, his presence in the room where we keep the papers is unavoidable. Among the items we have on display that we like to show visitors is a copy of the letter Brandeis wrote to President Roosevelt announcing his retirement. (The original is on file with the rest of Brandeis’ papers.) Mounted in the same frame is the original letter written by the other justices of the Court expressing their regret at his retirement. This letter is signed by all of the justices except for one: James McReynolds. This inevitably leads to a conversation about who McRenolds was and all of the stories about what an awful person he was supposed to have been: his out-spoken racism and anti-Semitism, and his horrible treatment of Brandeis, Cardozo and Frankfurter while they were on the bench. While this conversation is taking place, we are leading our visitors down the room to where we have two official court portrait photographs that were given to the school by Brandeis. And this inevitably leads to another McReynolds story: about how one year when the justices were supposed to have their photograph taken together, McReynolds stormed out when he discovered that protocol dictated that he would have had to sit next to Brandeis.

It’s a great story and our visitors love hearing it. (Everyone loves a good villain.) Unfortunately, it looks like we are going to have to stop telling it. According to research done by Franz Jantzen, the Collections Manager for the Supreme Court, the story is not true. He outlines his case in an article titled “From the Urban Legend Department: McReynolds, Brandeis, and the Myth of the 1924 Group Photograph,” in the latest issue of the Journal of Supreme Court History (volume 40, number 3.) It is an interesting article and so short that I won’t give more than a brief outline of Jantzen’s argument.

The group photos of the Court were only taken whenever a new justice was appointed to the bench. (There have been some exceptions, but they aren’t relevant here.) When Edward Sanford joined the Court in 1923, the justices were unable to decide which studio should take the picture, and as a result two photographs were taken at two different studios. When a third studio complained to Chief Justice Taft about not being allowed to participate, he tried to mollify them by scheduling a third group photograph of the Court during the following year (1924.) It was this third photograph that McReynolds objected to. According to a letter written to Taft, McReynolds felt that this photograph was unnecessary since there had not been a change in the make up of the Court since the last photograph was taken and that the Court should not give in to the whining of the studio. And since McReynolds refused to participate, the photo session fell through.

Frantzen has more to say about the origin of the story and the possible rehabilitation of McReynolds’ reputation. (I’m not buying that last part. He still sounds like a pretty awful person to me.) It also has a nifty picture of Brandeis and McReynolds sitting next to each other while listening to President Coolidge address a joint session of Congress. Unfortunately, there is still no free online access to current issues of the Journal, so unless you are a member of an institution that has access to the Wiley database, you are going to have to get your hands on a paper copy. But it’s worth the effort.

Obsessive side note: The article reprints the 1923 picture of the Court that was taken at the Harris and Ewing studio. It would appear that that same picture is one of the photographs we have hanging on the wall in our library. (Unfortunately the plaque attached to the frame is confusingly labeled “The 1924 Court.”) However, a careful comparison between the photograph in the Journal and the one on our wall show subtle differences. In the Journal, Brandeis and the other justices are looking towards Taft’s right. But in our copy, they are facing slightly to his left. Also, in our photograph, McReynolds’ hand are clenched together, but in the Journal, one index finger is pointing outwards. If I were of a conspiratorial nature, I could have a lot of fun with this. However, it is just a weird little side note. Presumably the one in the Journal is the “official” one. Was ours an alternate take that Brandeis got his hands on and sent to us? Who knows?

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One Response to “Another Louis D. Brandeis Myth Debunked”

  1. 1 Michael Hartman

    Actually, it would have been in November, 1922, upon the retirement of Justice William Day, that had a group photo been taken, Brandeis and McReynolds would’ve sat next to each other, although until the following January, there was a eight-member Court. (Pierce Butler joined in the latter month.) Upon Justice Day’s retirement, the photo would’ve been like this: Standing, left to right: Justices Sutherland, McReynolds, Brandeis; Sitting, left to right: Justices Van Devanter, McKenna, Taft, Holmes, Pitney.


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