Brandeis and Harlan Watch

The Eating Habits of Supreme Court Justices Part II


This is a semi-sequel to an earlier post that was written in response to the publication of Clare Cushman’s Table For 9: Supreme Court Food Traditions & Recipes. I probably should have put more thought in the title, because while this post does talk about food and recipes, it doesn’t really talk about eating habits that much. And I separated the two posts because I wanted to have one each for Brandeis and Harlan, but now that I have had a chance to reread the source material for this post, it turns out not to involve Harlan very much at all. Oh well…

While Cushman’s book does mention the first John Marshall Harlan a couple times, she doesn’t really mention any foods he was fond of. And I’m afraid I don’t really know what he liked either. (I have heard that he was the last Supreme to use a spittoon while on the bench. However, since you are not supposed to swallow chewing tobacco, I don’t suppose it counts as food.)

However, the newspaper story transcribed below did come to mind while reading Cushman’s book. Years ago, when Justice Ruth Bader Ginsburg visited the Louis D. Brandeis School of Law, I was charged with finding items in our collection of Brandeis and Harlan papers that she might find of interest. Leafing through one of the scrapbooks of newspaper clippings that Harlan’s wife Malvina kept, I stumbled upon a gem of an article from the June 30, 1905 issue of the New York Herald which describes the Supreme Court Justices struggling over the legal issue of whether fish paste was a sauce or not. I had heard that Ginsburg’s husband, Martin, was known for his culinary skill, and so I thought because of that, and the role played by the Justices’ spouses, she might be amused by the story. She did seem to get a kick out of it, and since she wrote the foreword to Table For 9, this seemed like a good opportunity to share it with the world.

The Harlan connection is a bit tenuous. He is not mentioned by name anywhere in the article, but it is in his scrapbook and the article had a nice drawing of Malvina, which I’m including as well.

The case, by the way, was Bogle v. Magone, 152 U.S. 623. And for more food-related decisions, don’t forget about the Great Margarine Controversy of 1898.


Wives of the Justices Decide That Anchovy Paste Is not a Sauce.

His Dictionary Misled the Court, but Domestic Common Sense Won the Day.


WASHINGTON, D. C., June 29, 1895—An important case, involving the question “What is a sauce?,” was decided by the Supreme Court of the United States not long ago in a way satisfactory to a certain New York firm, but the records of the Court fail to explain how the decision was reached. It has just transpired that the Judges had reached an opposite opinion, and Justice Gray was to write their decision that fish paste was a sauce, when he happened to mention the case to his wife and changed his mind. When the other Judges  consulted their wives they also changed their minds, and so the Supreme Court of the United States had to reverse its judgment on sauce. The practical common sense of the household upset the entire judicial Bench, and Justice Gray was instructed to write a decision to the effect that fish paste is not a sauce.

The case was brought by William B. Bogle, Ruluf Lyles, Alexander Scott and William Y. Bogle, plaintiffs in error against the Collector of the Port of New York. The suit was to recover an excess of duties paid upon goods imported as “fish paste.” The Custom House assessed the goods as “sauces.” At the trial in the Circuit Court one of the plaintiffs testified that the goods were imported as “anchovy paste” and “bloater paste.” Webster’s dictionary was quoted to fix the definition of sauce, and in spite of the evidence that anchovy paste and bloater paste were not recognized in trade as sauces, the Circuit Court directed that a verdict be entered for the Collector of the Port, on the ground that the term “sauces of all kinds” in the Tariff act was to be taken in the ordinary meaning and not in its trade meaning.

Then came the hearing before the Supreme Court; the only Justice absent being Justice Jackson.


Justice Field interrupted the proceedings once to tell a story of which the alleged sauce reminded him.

“There was once a young Irishman, an officer in the English lancers, who had served with Wellington in the Peninsular war,” said the Judge. “Upon his return he attended a dinner and was asked by his neighbor, a burly young English officer, if he would have some of the anchovies.

” ‘Indeed and I will,’ responded the lancer, ‘I have seen them growing in Spain.’

” ‘Growing?’ repeated the other in surprise.

” ‘Yes, growing,’ returned the Celt, exasperated at the question. ‘I’ve seen whole bushes of them, and picked them, too.’

” ‘You are crazy, man,’ ejaculated the Briton. ‘Anchovies don’t grow on bushes; they swim in the sea.’

“The Irishman, already hot with wine, gave the other the lie, and the inevitable duel was the result. When the principals were placed next morning, the Irishman’s second whispered to him, ‘Shoot low, my boy, and see him cut up the capers.’

“At that word the Irishman cried out: ‘Hold. I was wrong. It was capers, not anchovies, I saw growing in Spain.’ “

This pleasant interlude to the argument was much enjoyed, and the spectators were so much interested in the outcome that they took sides, and several of those who knew what anchovy paste was took the opposition, on the sauce side, down to Chamberlin’s and gave them substantial proof, washed down with the customary sparkle.


After the arguments were concluded, the Judges considered the points, and were a unit in favor of upholding the definition of the lower Court, and the definition of Webster’s Unabridged Dictionary, and making Messrs. Bogle et al. pay thrity -five per cent ad valorem on “sauce.”

Justice Gray was awarded the important duty of writing the decision in accordance with this view, and when he went home that night he mentioned the matter to Mrs. Gray, at the same time telling Justice Field’s story.

When Mrs. Gray learned that the great Supreme Court was going to decide that fish paste was sauce all the domestic vigor in her soul was aroused, and she proceeded to read her distinguished spouse such a lecture upon the cuisine and the constituents entering into it that he began to waver. In a calm and penetrating manner she held up the delicious effects fish paste would have on a tender head of lettuce, and described its palate pulsating delight, when freely embellishing chicken salad.

“Sauce, indeed,” said Mrs. Gray, “so are sardines and smoked red herring, then.”


Next day, when Justice Gray reached the Supreme Court, he called his colleagues together and acquainted them with the feminine view of the sauce question.

“You are all married men like myself,” he said, “and maybe you’d better sound your wives before we make a precedent about anchovy and bloater paste being sauce.”

This was agreed to, and the next day eight Justices of the Supreme Court met and solemnly concurred that the Customs Department of the United States and the Circuit Court of the Southern District of New York and Webster’s Unabridged Dictionary didn’t know anything more about what sauce was than a tomtit did about the Pentateuch. If Justice Jackson had been there he would have acquiesced too.


Accordingly Justice Gray wrote another decision. Of course Supreme Court Justices write their own opinions, but there are hints in some of the paragraphs ensuing of a pair of feminine eyes looking over his shoulder. Here is a part of the interesting document:—

[Editor’s note: the transcription of the opinion here varies quite a bit from the official opinion.] “The word ‘sauce,’ as commonly used, designates a condiment generally, but not always, of liquid form, eaten as an addition to and together with a dish of food, to give it flavor and make it more palatable, and is not applied to anything which is eaten either alone, or with a bit of bread, either for its own  sake only or to stimulate the appetite for other food to be eaten afterward. For instance, cheese eaten with bread, or ham or chicken eaten in a sandwich, or anchovies or herrings, caviar, or shreds of salt fish, eaten, whether with or without bread, as an appetizer before a meal, would hardly be called a sauce.

“In the dictionary of Webster, referred to at the trial, the primary definition of ‘sauce’ is accordingly given as ‘A mixture or composition to be eaten with food, for improving its relish; a relishing condiment; appetizing addition to the principal material of a dish.’

“At the trial, the plaintiffs introduced evidence that the goods in question were manufactured out of anchovies or bloaters, ground up and spiced; were used as food in a distinct form, or as an appetizer, principally in a sandwich, or sometimes with a cracker, and not as a condiment; and were specifically known as ‘anchovy paste’ and ‘bloater paste,’ and that in trade and commerce the word ‘sauces’ was applied to liquids, only, and not to these pastes.

“The Circuit Court, in directing a verdict for the defendant, ruled, in substance, that, as matter of law, and without regard to commercial usage, these articles came within the words ‘sauces of all kinds’ in the Tariff act. We are unable to concur in that view, or to say, either of our judicial knowledge or in view of the evidence introduced, that these articles are necessarily ‘sauces’ of any kind; still less, that this is so clear as to exclude the usual test of commercial designation.

“On the contrary, we are of opinion that the evidence of the nature and the use of these articles, and of their commercial designation, would have warranted a jury in finding that they were not ‘sauces,’ and were ‘fish, preserved or prepared.’

“Judgment reversed, and case remanded to the circuit court, with directions to set aside the verdict and to order a new trial.”