Q&A with Melvin Urofsky, author, ”Louis D. Brandeis: A Life”
BRIAN LAMB, CHAIRMAN AND CEO, C-SPAN: Melvin Urofsky, can you remember when you first thought you might like Louis Brandeis?
MELVIN UROFSKY, AUTHOR AND VISITING PROFESSOR OF HISTORY, AMERICAN UNIVERSITY: In fact, it’s a memory that’s well seared into my consciousness. I was a graduate student at Columbia in the early 60s and the great biographer, author of Woodrow Wilson, Arthur Link had written in one of his books that Louis Brandeis was the intellectual architect of the New Freedom.
And I glommed onto that sentence and I went to my mentor, Bill Leuchtenburg, and I said I think there might be a doctoral dissertation here. And Leuchtenburg said I think so too. So I did all the paperwork you know and researched Brandeis a little bit, got it approved, and then in the fall of 1964 I moved to Columbus, Ohio for my first teaching job at Ohio State.
A few months later I went down to Louisville, where the Brandeis papers are and there I made two discoveries. The first one was there wasn’t enough information on that particular topic to support a dissertation, but the Brandeis letters were a goldmine of information. So David Levy, who was a colleague of mine at Ohio State, and I began work to get the permissions to edit the Brandeis letters. And as my wife says, Louis has been living with us every since, so.
LAMB: How did you get permission and from whom?
UROFSKY: Well the papers are in the possession of the University of Louisville Law Library. And as it turns out, the dean of the library knew a member of the Brandeis family who knew one of our senior professors at Ohio State, Mary Young; they’d gone to college together. So after a series of phone calls to say are these people OK, we got the permission. The following summer we were interviewed by Brandeis’ daughters, who then gave their blessing for us to go ahead. And then we started what ultimately would be seven volumes of letters and, on my part, some other books that were related to Brandeis, plus a midlife crisis trip to law school.
LAMB: Midlife crisis; what year?
UROFSKY: I was 40. It would have been 1979. I got contact lenses, which I still wear. I bought a sports car, which my son totaled. And I went to law school.
UROFSKY: Brandeis. I had discovered that in editing the letters, while he was a Justice, some of the cases we really hadn’t done properly. They weren’t wrong, but they didn’t a case like Erie, which is extremely complex, we hadn’t done justice to it; no pun intended. And I’d become fascinated by the law. I didn’t want to practice, but I wanted to study.
So I went to law school, had a wonderful time because I wasn’t looking for a job; I wasn’t looking to make Law Review. My grades were decent; they weren’t spectacular. I may have been the only person in law school at that time who really enjoyed himself.
LAMB: Where did you go to law school?
UROFSKY: University of Virginia.
LAMB: So you’ve taught most of your life, though.
UROFSKY: I’ve taught all my life.
LAMB: And where?
UROFSKY: My first full-time teaching job was at Ohio State. Then I went to State University of New York at Albany. And then the bulk of my teaching career was at Virginia Commonwealth, down in Richmond, Virginia. I’m now a visiting Professor of History at American University here.
LAMB: What’s the thing that you like about Louis Brandeis the most?
UROFSKY: His integrity. And the fact that, as I tried to explain in the book, he was an idealist who was also a pragmatist. He didn’t have his head in the sky and some notion of a grand scheme. He was very much grounded in the reality; this is where we live, this is what’s wrong, this is how we have to try and make it better. He once told somebody, don’t believe in isms; they never work.
LAMB: He was born in 18
LAMB: And died?
UROFSKY: In 1941.
LAMB: Was on the court for what years?
UROFSKY: Nineteen-sixteen to 1939.
LAMB: He was born in Louisville.
LAMB: Where did he live most of his life?
UROFSKY: Well he lived in Louisville till 1873. Then his father, sensing the great panic that was coming, closed down his business and took the family to Europe for three years to visit relatives and to teach their children about their lives there.
When Brandeis came back, he entered Harvard Law School and after he graduated Harvard, except for one year in St. Louis, he practiced law in Boston until his appointment to the Court in 1916. Then he lived in Washington the rest of his life, with a summer home on Cape Cod.
LAMB: Did he actually get an undergraduate degree anywhere?
UROFSKY: No. He didn’t and you didn’t need an undergraduate degree to get into Harvard Law in those days. He did go to a German gymnasium for a while and at that time the gymnasium would have been a cross somewhere in between high school and college, so he got some post-high school training, if you will, but he never had a BA.
LAMB: How many of the I know he had two daughters, Susan and Elizabeth. Did you meet either one of them?
UROFSKY: I did. I met them in the 1960s. We went up to Cape Cod to the summer home, which is still in the family. And we met Susan and Elizabeth; Susan’s husband was already dead at that time, but we met E.B.’s husband. Elizabeth was always known as E.B. And at that point, she my favorite story is we’re sitting outside on an August afternoon on Cape Cod and mosquitoes are eating us alive, but they didn’t dare come near her. And she was just totally oblivious of them. She was quite a character. They both were. Both daughters made quite good records for themselves; one as a lawyer and one as an economist.
LAMB: There’s a lot you can talk about, obviously. You’ve got a huge biography of him, but one of the things that got my attention in the book had nothing to do with the law. It had something to do with something called the salons that he used to have; something you don’t see much of anymore. Explain what those were and where did they happen and all that.
UROFSKY: Brandeis, from the time he and Alice were married, and he had a place of his own where he could invite people, was always inviting people who came to town; reporters, politicians, reformers, to come have dinner with them. When they moved to Washington, he and Alice had a Monday afternoon tea and they would invite young people who worked in the government, other members of the Court, reporters going through town, people from Louisville whom happened to be coming through, professors from Harvard were always welcome.
During the New Deal, this became a very important place to go to. Many of the young New-Dealers who had come to Washington to work for the Roosevelt administration had been sent there, some of them by Felix Frankfurter, would come to Brandeis and he would question them on what they were doing, why were they doing this, what problems were they facing. And it wasn’t so much that he said well you ought to do this or you ought to do that, but I interviewed some of them later on. They said we would talk to him and he would ask us questions and when we were finished we understood some you know a problem that had been bothering us would go away.
I can give you one example of this. There was a woman who was heading a branch the Theater branch of the Works Project Administration and she had this problem. Under the law they could not pay royalties to the authors of plays and she felt this was unfair. And so she goes her husband had been a classmate of one of Brandeis’ clerks at Harvard, so she goes to the Monday afternoon tea and Brandeis is quizzing her. And she says, Mr. Justice, I have a problem, OK. And he said what’s the problem?
And she explains she can’t pay royalties. And he thinks for a minute and he says rent the place, which was the ideal solution, cause that way they could pay the authors. It wasn’t royalties, cause it wasn’t based on the number of performances or anything like that. They would just pay a weekly rental and it was fair to everybody concerned. And he apparently did that hundreds, thousands of times.
LAMB: Were there many accountings that you could find about those salons?
UROFSKY: Oh yes.
LAMB: Who wrote them down and who talked about them?
UROFSKY: Well the clerks were always pressed into service to help serve tea and to make sure that no one monopolized Brandeis’ time. Alice kept a very close eye and when she thought that one person had had enough time, she would tap the clerk, send him over to with the next person to introduce. And the clerks, in their reminiscences have spoken about this a great deal. And a number of other people in their autobiographies; William O. Douglas, for instance, writes about going there and he was a great fan of Brandeis and Brandeis thought he called him a hell of a fellow.
LAMB: You say that he owned Alice Brandeis only served tea and
cookies; ginger snaps.
LAMB: That’s all.
UROFSKY: That’s all.
LAMB: Nothing else.
UROFSKY: That’s all. They were not cheap in the sense; they were aesthetic. And as he got older, he grew more aesthetic and Julian Mack, Judge Julian Mack, who was a gourmet used to say that if you ate at Brandeis’ you had to eat twice; once when you went there and then afterwards to get a really good meal.
One time was it Dean Acheson or one of his clerks who had grown up on a farm was there for dinner and they were passing the asparagus around, so he took a farm portion, not realizing that what was on the plate was all there was, so that by the time it got down to the end of the table, there wasn’t asparagus for the remaining guests. He didn’t make that mistake again.
LAMB: Explain this; you say in the book that he told his wife that they were going to live well, but simply.
UROFSKY: Yes. They bought at good stores in Boston. They bought good clothes and kept them. He was not a slave to fashion. After one of his suits wore out, he replaced with essentially the same suit, usually from Filene’s. They bought in good furniture stores. He once told his brother; don’t buy any furniture that your grandchildren can’t use.
And they never owned a car. He finally had to give up his horse and they made an arrangement with what was essentially a limousine service, or it was an individual driver who owned a big black Packard that to come get him. He gave up his horse only when car traffic in Washington made it dangerous. But there’s a picture in the book of him and Alice in a little one-horse buggy in 1921, so he was still using his horses; he was still riding late in life.
He only owned one house, or tow houses, I should say. He only bought the place on Cape Cod because the owner from whom he had rented for a number of years wanted to sell it and Brandeis liked it too much and he didn’t know if the new owner would rent to him, so he bought it. But otherwise, he didn’t believe in owning things. Things had no appeal to him at all.
LAMB: How much money did he make?
UROFSKY: A lot. He was successful almost form the time that he and Sam Warren opened business in Boston. The best numbers I can give you, in the 1890s, when most lawyers in the country were making less than 5,000 a year, he was making over 50,000 every year. That would be the equivalent of about $900,000 today with no taxes.
He was a millionaire by 1907. When he went on the Court he was worth 2 million. When he died he was worth 3 million. During the Depression, his very conservative investments took the mildest of hits. And so he had the money and he gave very generously to relatives, to causes he believed in, to Zionism, to other groups, but he said once I have enough money that I can take care of my family, I want to do more and more public services. I don’t want to be a slave to my law practice.
LAMB: You say at one point in your book that he was a Republican, but he was a Democrat.
UROFSKY: He was always a small D Democrat. He was in the Republican Party for a long time because the Democrats when he growing up was the party of rum, Romanism, and rebellion, as it was once seen; the part of the South. He was opposed to William Jennings Bryan, but he breaks with the Republican Party when Woodrow Wilson comes to run and from that time on, he is a member of the Democratic Party, at least till he goes on the Court. But he was always a small D Democrat.
LAMB: You say he was conservative, but liberal.
UROFSKY: He always described himself as conservative. And one of the paradoxes that I try to explore in the book is how a man who saw himself as conservative became a liberal icon. And part of is that he appears liberal in comparison to some of the rockbound reactionaries, like McReynolds and Taft and Sutherland, with whom he served.
He was a Burkean conservative, who you know like Theodore Roosevelt, with whom he had far more in common than either one of them probably would have admitted, who believed that if you wanted to keep the best of the past, you had to adopt it to current realities. And that was what the liberals fashioned on during his dissents in the 1920s, in which he is arguing that the Court should exercise restraint, should allow you know legislatures to try to do what they’re permitted to do. His opinions on privacy and free speech; this is what the liberals made of him.
LAMB: I wrote down a number of things that you said about him, including, we’ve talked about never owned a car, but that he didn’t belong to a synagogue and yet he was very active in the Zionist movement.
UROFSKY: There are two types of Zionism, if you will. One is religious Zionism and the other is secular Zionism. He was always a secular Zionist.
LAMB: Let me stop you.
LAMB: And we talk about this all the time, but define Zionism for someone who’s never paid attention.
UROFSKY: Zionism was a movement started by Theodor Herzl to return the Jews to a homeland in Palestine.
LAMB: Where was Herzl at the time?
UROFSKY: Herzl was a Viennese journalist who had his who was a secular Jew you know a non-practicing Jew, but he was a reporter at the Dreyfus trial in Paris and that awakened his Jewish sensibilities and in 1897 he writes Der Judenstaat; the Jewish State. And at first he was willing to have this Jewish State any place and till more religious Jews convinced him that the only place Jews would really be willing to go to would be back to Eretz Yisrael, to the land of the Bible.
And Brandeis’ uncle was a Zionist, although Brandeis did not know it at the time. And he first becomes aware of Zionism in 1910, when a reporter, Jacob DeHaas, interviews him. Brandeis then studies and eventually comes to the conclusion that Zionism is the type of idealistic reform that he can support. Now he never was religious. He says that his mother did not believe that anyone should be bound to any one religion; rather they should be aware of and sensitive to all religions and treat them all with respect.
He never denied his Judaism, but considering that he was one of the most successful lawyers in Boston, he had very little to do with the Jewish community of Boston. He made donations to various Jewish charities, but they were, for the amount of money he had, nominal compared to some of the money he put into other reforms.
LAMB: Tell us about the Dreyfus trial just for a moment.
UROFSKY: Alfred Dreyfus was a captain in the French Army. And there was a scandal in which it was determined that a spy had sold military secrets to the Germans, France’s age old enemies. And Dreyfus, although innocent, was blamed for it and his main problem was not that he was a spy, but that he was about the only Jewish officer and there was virulent anti-Semitism in France at that time.
And a number of Zolarites Yakuse at that point, accusing you know the French of a mock trial; that it was a farce. And of course the most important result that comes of that is Herzl’s book. Eventually Dreyfus is exonerated and the real culprits, who were French officers, were found.
LAMB: This is somewhat of a non sequitur, but he later in his life got involved in the Sacco and Vanzetti case and what was that and how did Brandeis get involved in it?
UROFSKY: OK. Sacco and Vanzetti were two Italian immigrants who were charged with a payroll robbery and murder in South Braintree, Massachusetts. Their trial was a farce. Evidence that might or might not have exonerated them was kept there. The judge was prejudiced. He kept referring to these anarchist bastards, practically ordered the jury to find them guilty, and after the trial a number of people, most notably Felix Frankfurter, began this long and arduous task to show that the trial was not fair. It was not there was no justice there and trying to get a new trial for them.
Frankfurter was a professor at Harvard Law at that time and Brandeis provided him with an annual stipend, which later aroused you know some eyebrows raised some eyebrows, but was not either illegal or immoral at the time. Brandeis was able to give I have to digress a little bit there. Brandeis was able to give so much of his time to reform work because he was rich. He made a lot of money as a lawyer. He had invested it soundly. He had a good return.
Frankfurter was a professor at Harvard Law School at a time when the law schools did not pay the high salaries they do today. He had a wife who was often sick, so all of his salary was essentially going to support his family. What Brandeis gave him was an annual stipend, which at first Frankfurter didn’t want to take, but there were no strings attached to it. Essentially he told Frankfurter you are now doing reform work. It costs and you should be free to take on whatever causes you want without having to worry whether they can afford your services or not.
When Frankfurter became Frankfurter became involved with Sacco and Vanzetti because of Elizabeth Glendower Evans was a close friend of Brandeis and the Brandeis family. And Brandeis sent him some extra money to help defray the expenses, but perhaps more importantly, Brandeis agreed that one of the houses he owned as a rental property could be used by the Vanzetti family because Mrs. Evans was very concerned that they had no place to stay where people were constantly pointing at them and you know reporters were showing up, so she it was essentially became a safe house. And Brandeis was aware of this. It also made him very unable, later on, to interfere in the case at all, when lawyers came for a last minute stay of execution.
LAMB: So what happened in the end to Sacco and Vanzetti?
UROFSKY: They were both executed. Subsequent research is still divided over whether they were guilty or not. There are some books who are quite sure that at least one of them was guilty and others say both were, but it’s not still not clear.
LAMB: Have you written any much about Frankfurter?
UROFSKY: I have read a great deal about him and in fact I wrote a biography, a short biography of him as a Justice.
LAMB: What’s the connection between the two? And you suggest in the book I think you quote Brandeis as saying that Frankfurter was a half-brother and a
UROFSKY: Half brother, half son.
LAMB: Half son.
UROFSKY: They met when Frankfurter was still relatively young and Brandeis was already an established reformer, lawyer. They met at the House of Truth in Washington, which was a house that Frankfurter and a number of other single young men shared. Holmes would stop by; Brandeis would stop by when he was in town. And he Brandeis took Frankfurter under his wing to some extent; helped to arrange a professorship at Harvard for him and was the only person to whom he would talk freely and openly about events on the Court.
There is a wonderful series of notes that Frankfurter left of conversations he had with Brandeis, in which they would discuss court cases, personnel. It’s one of the few glimmers we really get into the inside of Brandeis as to what he thought about his colleagues on the Court. And after Brandeis could no longer do the reform work that he had been doing, Frankfurter had already gotten involved to some extent.
The problem was where Brandeis could afford to take any case he wanted; any reform he wanted because he was paying his own way, Frankfurter couldn’t. Frankfurter just didn’t have that cash, if you will, to be able to lay out for, for instance, have a brief printed in cost money. He didn’t have that. And Brandeis wanted to make sure he did, so from 1917 on, until late 1930s, when Frankfurter himself went on the Court, Brandeis gave him what would average out to about $50,000 a year in terms of our money.
It was much less then, but you know if you’re talking about printing briefs, if you’re talking about travel, if you’re talking about hiring research assistants, it none of it went into Frankfurter’s pocket, nor did Brandeis ever tell Frankfurter I want you to do X or I want you to do Y. It was always left to Frankfurter’s discretion.
And despite the scandal it sort of created when it became known about 15, 20 years ago, it was never a secret at that time. I spoke to some people, older professors at Harvard who had been there and knew Frankfurter and said we all know that you know he was getting help from Brandeis on a number of things so he could do this. So it wasn’t really a big secret.
LAMB: He was almost 85 when he died in 1941. How much money did he have when he died?
UROFSKY: His total estate was 3 million. After taxes, which were fairly heavy; I mean it still came out to 1.9 million.
LAMB: On ’41 dollars or dollars today?
UROFSKY: No, this is in ’41 dollars. Today it would be quite a bit more. He had invested very conservatively. He said he didn’t want to have to watch his investments. He had a woman who had been come to him as a young girl in his law office in Boston. She had a head for number, which he recognized. He soon put her in charge of office finances and after he went on the Court, she continued to handle his personal portfolio. And he you know paid her a fee for that every year.
LAMB: There’s one of your chapters where you talk about how you got involved. I don’t remember whether it was New Haven Railroad or which it was; you’ll remember. But it was all about bigness and it reads like today; right now, this every day, every problem we have today in that time period reads like it does today. What was that?
UROFSKY: It was probably the insurance scandal because the headlines there were so similar. CEOs using company money to buy Persian rugs, one of them paid for a big coming out costume party for his niece out of corporate funds; the same sort of headlines just with different names that we have today.
And New England policyholders in these big three companies were very upset. They wanted to know if their you know for many people in those days, an insurance policy was their cheap investment. The stock market had not become what it is today. So if you were, let’s say a doctor or a lawyer around 1904, 1905, your big investment, aside from say the purchase of a house, would have been an insurance policy, which would have provided for your family if you died or, because these were whole life policies, would have been your retirement you know if you lived long enough. And they were extremely worried about the value of these investments, so they hired Brandeis to look into this for them.
About this same time, Charles Evans Hughes is conducting public investigations in New York in he’s a lawyer at that time; into the insurance thing and he’s coming up with one scandal after another. That’s just like today.
LAMB: Put him in context, by the way.
UROFSKY: Hughes was a lawyer in New York. He eventually became Governor of New York. He was appointed to the Supreme Court by Taft, resigned, later became Secretary of State, and then was named Chief Justice by Hoover and Brandeis thought the world of him.
They didn’t agree on everything you know jurisprudentially, but Brandeis was an admirer of his, thought that Hughes’ investigation into the insurance industry was exactly the way he would have done it, and he liked the way Hughes ran the conference. He thought Hughes was you know the best Chief Justice you know he had ever met.
LAMB: In the context of the insurance business back there, I wrote you wrote down that you said he was he had a strong aversion to the curse of bigness, but what impact did he have on it and what the whole business of becoming a consumer’s lawyer?
UROFSKY: In the chapter on which I call a Perfect Reform, what I tried to do is show Brandeis sort of the epitome of what made him such an effective reformer. He’s opposed to bigness. He’s opposed to bigness in business. He’s opposed to bigness in government. He always says man is a we-thing and has limited abilities. And while he recognized that in modern society you had to have delegation, you had to have you know one person couldn’t do everything, the idea of a factory that hired 10,000 people; he said no one can have any idea of what their business is when it gets to be that big, that there’s inefficiency of bigness.
He opposed much of the New Deal personally; not as a Justice, but personally, because he was opposed to big government. Labor had a very mixed reaction to him. On the one hand, he was a strong proponent of labor’s right to organize and bargain collectively; the other hand, he wanted to put limits on unions so that they would be responsible. And this, of course, was anathema to people like Samuel Gompers and others.
LAMB: And who was Samuel Gompers?
UROFSKY: He was the head of the American Federation of Labor during this time and he and Brandeis debated and on this, but when it came to the confirmation hearings in 1916, labor lined up completely in back of Brandeis cause they trusted him. Even if they disagreed with some of his things, they trusted him.
LAMB: But speaking of those hearings, it took six months to get him approved; why?
UROFSKY: Four months, four months, yes. He was a radical. I mean there’s no question about it that as far as conservatives were concerned, this was a man who had attacked JP Morgan, had discovered that the past Presidency was in the a big scandal regarding conservation and Alaskan resources; that the President had lied about what he had done.
This was a man who had developed the Brandeis agreed to support labor legislation, which conservatives found anathema. This was the man who had attacked banking practices as then practiced and who had attacked the courts as being not in touch with current reality by any standard. Brandeis was a radical.
He wasn’t at IWW type of radical, but as far as the conservatives were concerned he was far worse, because he was educated, he was trained, and he was effective. You could ignore the Wobblies, the real radicals over on the left; you couldn’t ignore Brandeis.
LAMB: Fourty-seven-22 was the final vote.
LAMB: And the 22 who voted against him; what party were they in?
UROFSKY: Almost all Republicans; just about complete Republicans, in fact, at that point. Only three Republicans voted for him.
LAMB: If he were here today and on the bench, on the Supreme Court bench, what would who would be on his side? Who would who would like him and who would not like him?
UROFSKY: That’s a hard question. I mean if you want to take today’s Court, a lot of what he preached is accepted by all members of the Court. A lot of what his dissents were in the 1920s and 30s have been accepted. Let me give you one example.
We think of Antonin Scalia as a conservative; a very conservative Justice. A few years ago, Scalia wrote what was in essence a Brandeisian opinion. The case came about this way. Police in a California town were cruising up and down with an electronic device in their car to pick up heat sensors. And their idea was if they could pick up a heat signature, they would know who was growing marijuana, because you have to have all that light, which generates heat.
Well they picked up a heat signature from this house. They then went and got a warrant, went it, and sure enough the guy was growing marijuana. But they never had a warrant to use the thermal sensor to look, essentially, into the house. And he’s convicted in the lower courts and he comes up and Scalia writes what is a Brandeisian opinion on privacy, saying you can’t just look into somebody’s house cause you have the technology to do so. You need to have a warrant.
And this is essentially what Brandeis wrote in the Olmstead opinion regarding wiretapping. You can’t just because you’re outside the house doesn’t mean you can take those alligator clips and listen in on the telephone conversations. His jurisprudence of free speech has been adopted by conservatives, as well as liberals. His notion of judicial restraint to allow legislature to do what you know they’re permitted to do is paid lip service by everybody; not always carried out, but it’s paid lip service by left, right, and middle.
So it’d be very hard to say where he would be, but I think, to take on specific case, for instance, the Ledbetter case in which the conservative majority took a very wooden literal view of the law and said that unless Ledbetter could prove you know file the complaint within 90 days of the very first discrimination, she had no cause of action is insane. She didn’t know that she was being discriminated against for 20-some odd years. Brandeis certainly would have been with Ruth Bader Ginsburg and the moderates on that in trying to inject the sense of common sense into the opinion.
LAMB: A couple other things you say in the book is that he wasn’t for initially women’s suffrage.
UROFSKY: No, he wasn’t.
LAMB: And that he wasn’t active in the civil rights movement of those days.
UROFSKY: He was not initially for women’s suffrage, in fact, spoke against it, but then he married and had two daughters. And he also associated with some very, very intelligent women; Florence Kelley of the National Consumers League, his sister-in-law, Goldmark, his he knew Jane Addams. He knew some other Mary O’Reilly in Boston; and gradually he came to the conclusion that his you know his argument was fallacious and he comes out and especially his wife. His wife was a strong supporter of women’s suffrage and the very shy Alice actually went on stage to speak for it and that may have been the final thing that brought him over.
In terms of civil rights movement, as a historian you have to be very careful to distinguish between what was going on in the 1910s, 20s, and 30s in terms of a civil rights movement and what happened later. The NAACP at that time was a very small group. Felix Frankfurter was involved in it. And the jurisprudence of the time was very different. Segregation was seen as state action. And even the NAACP didn’t know how you would attack state action in federal court. You have to recall that not until the 1950s, really, do we begin to get a Supreme Court that allows federal review of state action in a number of areas.
Now interestingly, although Brandeis has been I think the main charge is he wasn’t a champion of the African-American. He championed all these other groups; why didn’t he champion them as well, which is a strange argument. But in all the cases that did come up before the Supreme Court that the NAACP brought, and there were only a handful during the time he was on the bench, in every single one of them he supports the NAACP to strike down some form of prejudicial legislation. So I’m in the book I argue it’s not you know yes, it would have been wonderful had he also done that, but he didn’t and that’s understandable.
LAMB: What do you think you would have thought of him as a personal friend or would you have liked him, do you think?
UROFSKY: If I were a close friend, I would have. If I were just a casual acquaintance I would have thought of him as cold, hard, all business, no nonsense. But his good friends; people like Norman Hapgood thought the world of him; Robert LaFollette. He didn’t have a lot of close friends. He was a man who made use of every minute of his time, although he took one month off every year.
He once wrote that he could do 12 months worth of work in 11, but not in 12. So at a relatively early stage in his career, when he can afford it, he started taking the month of August off. And he took you know long weekends and others. He believed that the worst thing a person could do was to be tired cause you made mistakes when you were tired. And he swore that after an early experience where a lawyer whom he greatly respected had made a mistake because he was tired. He swore that would never happen to him.
LAMB: One of the things I saw referenced in your book and other places and you I think you might have even done a book on this, is the 1914 book that he did; Other People’s Money and How the Bankers Use It.
UROFSKY: I edited that book, but not and I wrote a new introduction. You don’t edit it, but you know I’ve written an introduction to that book. And last fall I had an op-ed piece in the New York Times, in which I said everything he says in that book regarding bankers, what they do, how they use other people’s money is still true today, and that the best thing we could do is learn from it.
LAMB: Well let me ask; this is I went into because I kept reading about it, I went into Google, typed in Louis Brandeis and Other People’s Money and How the Bankers Use It and you can read the whole thing right there on the Internet. How do you think he’d feel about that, based on the fact that he was involved in copyright and all that, privacy and it’s free?
UROFSKY: I think he would have very mixed reactions. On the one hand, it’s a wonderful source of information to all people and, like most progressives, he believed that you could never know enough and that one of his arguments for free speech is that an educated citizenry is absolutely essential in a democracy and that you we don’t sensor speech so that people can hear all sides of an argument. I think he would have thought the fact that anybody could sit down in front of their computer and get all that information would have been wonderful.
On the other hand, the fact that it intrudes in so much of our daily life and you walk down the street now and you see people talking to themselves. Well of course they’ve got the earplugs in. It wasn’t long ago they would have arrested people who were seen you know walking down streets talking to themselves.
Phones, cell phones are everywhere. He didn’t even use the phone late in his life. He thought it was an intrusion into his privacy, so I thought I’m sure he would have objected to cell phones and the ubiquitousness today. He would have had mixed reactions.
LAMB: Where did he live here in Washington?
UROFSKY: He lived up on Florida Street. Oh, I’m sorry; California Street.
LAMB: So not within walking distance.
UROFSKY: Yes, he used to walk down the
LAMB: Did he really?
LAMB: I want to make sure our audience, those that are interested; it’s Other People’s Money and How the Bankers Use It, 1914. You can find it. I also want to show you a clip of his grandson, Frank Gilbert, who lives here in Washington that who we talked to in conjunction with our special on the Supreme Court; do you know him?
UROFSKY: I do. I’ve known Frank for a number of years.
LAMB: He’s talking about the Supreme Court Building that, back in 1935, he didn’t move into, but let’s listen to what he has to say.
UROFSKY: All right.
FRANK GILBERT, GRANDSON OF LOUIS BRANDEIS: He had the law books spread out on the floor of his bedroom office, which was not a large room. And that worked that served him very fine and in a very fine fashion. And so he saw no need for this marble palace. He didn’t want to be any part of it, although he had very good relations with his fellow Justices. They all used the building. One of Grandfather’s law clerks told me many years later that one of his fellow Justices raised some objection about the building and rather uncharacteristically, Grandfather turned to the law clerk and said well he voted for it.
UROFSKY: The modern Supreme Court Building was Taft’s initiative. Prior to the new building, they met in the old Senate Chamber in the basement of the Capitol. It was cramped. There was no room for private offices. The Justices put on their robes and then had to walk down the hall to the courtroom. And Taft thought that, as one of the three main branches of the government, the Supreme Court ought to have a building that was comparable to the Capitol or the White House and he pushed it through.
Brandeis always liked the old courtroom. He liked the idea that the Court was a small body; one man, each with one clerk, doing the business of the government. He liked that. And when the new building opened, he refused to move into it. His wife was curious, so one time in fact, they kept his chambers open to the public so that when they were running tours through the building, this is where they could show what a Justice’s chambers looked like, because his was unoccupied.
And one time, Alice Brandeis wanted to see it, so she sort of snuck down there. And when she came out, somebody asked her, so they have ice water and my husband doesn’t use either one of them. I mean the she thought these were much too elaborate; he did and he never moved into his chambers during the time that the building opened till he retired.
LAMB: Our producer for our Supreme Court series, Mark Farkas, was worried that people thought that Louise Brandeis didn’t bathe. And I guess he liked the bathtub instead of the
UROFSKY: He liked the bathtub, yes.
shower. Another thing that was mentioned by Frank Gilbert was clerks, and if you get in the list of clerks, you’ll notice that all of the clerks for Louis Brandeis came from Harvard.
UROFSKY: That’s right.
LAMB: Unlike any other Justice. I mean nobody else had only Harvard clerks. What was the plan?
UROFSKY: No, no. Holmes did.
LAMB: Oh, did he?
UROFSKY: Holmes had his from Harvard too, because he got them from the same source; Felix Frankfurter, and before that, from Professor (Gray). This was not unusual. I mean Justices William O. Douglas, for instance, only took his clerks from the Ninth Circuit, so it’s not unusual for Justices to say I only want clerks from here now, of course, they have three or four a piece.
Also in those days, sometimes clerks would stay more than one year. For instance, Harlan Stone had a clerk that stayed with him for, I think, seven or eight years. So it was a different arrangement than we have now, where they leave all leave after one year. Brandeis had two clerks that stayed two years each; one of them was Dean Acheson, and then the rest of them only stayed for a year.
And Frankfurter chose them. One or two of them came down and met with Brandeis first, but for the most part is was; they showed up in August, where the former clerk would essentially teach them the ropes and then they would be there.
LAMB: If today a Supreme Court Justice was paying somebody like Frankfurter at Harvard to do a project of any kind and that professor was providing this Supreme Court Justice with all their clerks, do you think this would work today?
UROFSKY: We’re in a much different environment after Abe Fortas; the Fortas scandals of the you know 1960s. I met with a member of the Judicial Conference office that handles judicial ethics and I sent him some chapters from the book. And I wanted to know, is there anything unethical about what Brandeis was doing, either by the standards of his time or our time. And he said that there was nothing unethical or illegal, but that because of the closer scrutiny of what Justices do since the Fortas scandal that Brandeis probably would not have done some of these things. Now asking a particular professor to provide clerks; there’d be no problem with that. Providing a professor with a stipend to engage in reform activity, today probably would not fly.
LAMB: I want to go back to Frank Gilbert again. Who was his mother? Do you know; Susan or Elizabeth?
UROFSKY: Oh yes, Susan. Susan was his mother.
LAMB: And do you know him?
LAMB: And what’s he do in Washington?
UROFSKY: He works for the Historic Trust; National Historic Trust Foundation.
LAMB: Well he this second clip I want to run is, still today, mindboggling. I’ve we’ve talked about this before on this program, but let’s watch it and you can explain it.
GILBERT: When it came to his resignation from the Supreme Court in 1939, as is customary, the Chief Justice wrote a letter to the retiring Justice to praise him and indicate how much the Court would miss him. And after Chief Justice Hughes drafted this letter, the Senior Associate Justice, who was Justice McReynolds, declined to sign the letter.
The other Justices immediately signed the letter, which was sent off to Grandfather and it stands to this day as indication of how Justice McReynolds felt about Grandfather. But to Chief Justice Hughes’ credit, he didn’t need that signature. He wanted it to stand with all the other Justices, indicating their respect and affection for my Grandfather.
LAMB: Wasn’t both weren’t both Justice Brandeis and Justice McReynolds from Kentucky?
UROFSKY: You know I’m not sure about McReynolds, but I think he may have been.
LAMB: I think he was. But it was just odd. What in the what was the thinking back then that he and explain how far McReynolds would go not to be around Justice Brandeis.
UROFSKY: Well first of all, you have to go back before they both went on the Court. McReynolds was Wilson’s Attorney General and apparently worked very closely with Brandeis in 1913 and 1914 to draft legislation. We have a number of letters from Brandeis saying I met with McReynolds today. He and I spent several hours. He once writes to his wife, McReynolds is besieged with office-seekers. I’m so glad I didn’t get that job. He had been talked about as a possible member of Wilson’s Cabinet.
And at least up until that time, their relations seemed relatively cordial. But once McReynolds went on the bench, his anti-Semitism just flowed completely you know just ran forth, gushed out, and during the time that Brandeis was on the bench; McReynolds wouldn’t talk to him unless absolutely necessary. During the conference the weekly conference when they went over the cases, the McReynolds would, when Brandeis was talking, would sometimes go to a couch on the side and read his mail or sometimes he’d leave the room until the Jew was finished.
There are a couple of years we do not have official portraits of the Court, because McReynolds would not pose with Brandeis. And after Benjamin Cardozo came on in 1932, McReynolds was horrified to have two Jews on the Court.
LAMB: Brandeis was the first Jew on the Court.
LAMB: Did anybody ever ask McReynolds why he felt this way?
UROFSKY: Not that I know of and
LAMB: We’ve got the memoir. It was done by
UROFSKY: By his clerk.
by the clerk.
UROFSKY: Right. But it doesn’t really say why he felt this way. I mean he was it was just prejudice, pure and simple, as far as I can tell.
LAMB: Did Justice Brandeis every talk about this?
UROFSKY: He ignores McReynolds for the most part. He doesn’t have a great deal of respect for him; not because of his prejudice, but because McReynolds was a poor Justice. He didn’t Brandeis and Hughes and Taft were all appalled at how sloppily McReynolds did his work on the Court. And there’s an interesting letter, though, that one time, for some reason or another, in a relatively minor case, both Brandeis and McReynolds were in dissent with the majority.
Excuse me. And because Brandeis was working on a larger dissent, he asked Reynolds if he would write you know a brief dissenting opinion and he comes home and he says McReynolds was so happy that I asked him to do that.
So I mean it’s a strange relationship. There are some places where, if you’re tracking, if you look at the notes in Brandeis’ court papers, for example, where McReynolds writes back, just like the others do on the returns; doesn’t say anything nasty. You know sometimes makes a suggestion; it’s, in fact, business as usual. And then there are other times when you know you get these stories. McReynolds was a very strange person.
LAMB: In the end, why did Justice Brandeis spend so much time and money at the University of Louisville, at their law school, and throw into that mix, Brandeis University and what he had to do with that, if anything? I know it came on in, what, ’48 or something like that.
UROFSKY: Well he had nothing to do with Brandeis, other than that his name was taken. In fact, one of his daughters thought that if he were alive he never would have allowed a university be to be named after him. He, of course, grew up in Louisville, but his interest begins to grow in the 1920s, when Harvard Law School expands under Dean Roscoe Pound and Brandeis is very much opposed.
Now Brandeis had been a generous contributor to Harvard Law. He had been one of the founders of the Harvard Law School Alumni Association. He was its long-time Secretary. He was on the Board of Visitors. But Pound, in the 1920s, feels that Harvard is still a 19th century law school and that in order to meet the needs of the 20th century, they’re going to have to expand the faculty. And in order to expand the faculty, they’re going to have to expand the student base. And this is going to mean larger classrooms, at least in the general courses, in the first year contracts course, and Brandeis is dead set against it.
So one reason he turns to Louisville is part of it is the curse of bigness. Harvard was now too big. And what he wanted was not one big Harvard, but a lot of little Harvards, as he put it. And the University of Louisville was to be his experiment. He and his and his brother in Louisville, Alfred, took the lead I raising money.
Brandeis arranged for his very extensive library to be given to the University of Louisville. He helped bring in a dynamic dean of the law school. He gave a lot of money, but in small chunks. He was opposed to this idea of big dollar investments and he’s constantly advising, don’t go after the big dollars. Go after a lot of little dollars, because that way you get people involved; interested.
I think he would have applauded Obama’s use of the Internet to raise a lot of $25 contributions rather than you know trying to get somebody to give 250,000. He wanted the local people involved in the development of the University of Louisville. And today, if you asked the dean at the University of Louisville Law School, they consider themselves a second tier law school, but one of the best of the second tier law schools. And they are also a law school that has a required public service component to their curriculum.
LAMB: And how much was he responsible for the pro bono publico section of these law of some law firms today?
UROFSKY: Well he almost invents pro bono when he got started. He writes and he tells his fiancι that
UROFSKY: Alice, when they’re when he’s courting her that he hopes that eventually he will do well enough in his law practice to be able to give at least one hour a day to public service. Well he does very well in his law practice. And a woman named Alice Lincoln, one of his clients, comes to him and asks him to represent her. She is a reformer and she is appalled by the conditions of the Boston Hospital for the Insane, which is out on an island in Boston Harbor.
Brandeis goes out there; he says it was one of the worst days of his life. It was like going through a syphilitic ward. You felt unclean when you left. So he represents her and he tries to you know get the city to adopt better conditions, which they do, although by current standards you know it wasn’t that much better. When Mrs. Lincoln sends him a check, he gives it to a charity. And eventually he stops taking fees for public service work completely.
When Edward Filene, who is one of his clients, as well as a collaborator in several reforms, wanted to find out how much he was charging, he finally comes to Brandeis’ office and says look; you did all this work. How much is it going to cost? And Brandeis said it’s going to cost nothing. I you know this is my obligation to do this. Just as it’s your obligation to be a good citizen, this is how I do it. And just as a collector would not or yachtsman would not enjoy being out on the sea if he had if he were paid to do it, so I wouldn’t enjoy doing this if I had to be paid.
They reached it was one point during his fight with the New Haven where he was putting in so much time that he felt it was unfair to his partners in the law firm, because you know he was the big rainmaker, that he actually paid his law firm $25,000 out of his pocket for work that they were doing to help him and other things. And as his partner, Ned McLennan said, none of us would ever have even thought of suggesting this. It was just something we did with and for Brandeis, but he was the one who insisted on it.
LAMB: This is what book for you?
UROFSKY: Fifty-something that I’ve either edited or written.
LAMB: This is 955 numbered pages. Who do you want to read this?
UROFSKY: Well, everybody, but I would like people who are interested in public affairs to read it; not just the court, but in government. I would like young lawyers, people going to law school to read it to see how law can be used in the service of the public. I would like people who want to better society to read it to see how it’s not just that you have to have an ideal of what things ought to be, but you have to have a sense of you can get there; how do you do something that’s real. I would like judges to read it, to remind them of how law has to be wedded to reality. So there a lot of people I would hope would read this.
LAMB: Where are you from originally?
UROFSKY: A place called Liberty in upstate New York; small town.
LAMB: Where’d you get your undergraduate degree?
UROFSKY: At Columbia. And I have a PhD. from Columbia and a JD from the University of Virginia.
LAMB: What impact, at age 40 and beyond, did that law degree have on you?
UROFSKY: It opened up a new teaching career for me, if you will. I have taught at different law schools. I’ve been a Fulbright down at the University of New South Wales in Sydney. But it allowed me to start writing about legal affairs, especially law and public policy. I’ve done books on affirmative action and right-to-die and campaign finance. And it gave me the confidence that when I was writing about a legal issue that I really did understand it, whereas prior to going to law school I would skirt around it, because I always was not quite sure that I did understand. And many of the times I did, but I now have the confidence that, if I want to and I, oh, for the past 30 years, all I’ve written about really is about law and public affairs.
LAMB: There’ve been 111 Justices in history and he was the 67th, I believe. Why what is there one thing that you can point to that makes him one of the best known, and in many people’s eyes and we just have a minute or so one of the two or three best in history?
UROFSKY: I would say that his jurisprudence on free speech and privacy, if nothing else, would mark him as a great and influential Justice. There was of course a lot more, but in a minute we can’t go into it. But if there is one decision or two decisions that should be read, it would be his decisions in Olmstead and Whitney on privacy and free speech. They ring through the ages. They’re still quoted extensively.
LAMB: What’s your favorite chapter in this book?
UROFSKY: Getting started. You known as he when he’s appointed to the court and how he developed the working habits he had and his relations with his clerks and I mean I don’t know why I like that better than the others, but I do like it.
LAMB: What’s the one thing you didn’t like about him?
UROFSKY: That he burned so many of his papers that might have given us better insight into him. But no, considering that this was the man who developed the right to privacy, one can sort of understand that.
LAMB: Melvin Urofsky has been our guest and he’s the author of Louis D. Brandeis: A Life. Thank you very much.
UROFSKY: You’re welcome. It’s been a pleasure being here.