The Friendship of Holmes and Brandeis

A member of a famous Philadelphia clan and a graduate of the Harvard Law School, Francis Biddle served as a law clerk to Mr. Justice Holmes between 1911 and 1912, long before he moved into national prominence as the Attorney General of the United States (1941-1945). As a young man and in his maturity, he was well placed to observe the friendship between those two great judges Brandeis and Holmes.

Francis Biddle

WHEN BRANDEIS came to the Supreme Court in 1916, he was fifteen years younger than Justice Holmes, and they were on the bench together until the older man retired in 1932, after thirty years in Washington, at the age of ninety-one. Holmes had served on the Supreme Judicial Court of Massachusetts for twenty years, so that for fifty years of his mature life he had heard arguments and decided cases. Brandeis told me that Holmes stayed on the Court too long; toward the end he wasn’t up to the work, and the Chief Justice had to spare him all he could. Brandeis retired at eighty-three, and had been on the Court for twenty-three years. Before that he had engaged in an active, varied, and very large and lucrative practice, constantly in court and appearing before state and national public-service commissions, representing corporate, community, and labor interests. He had been special counsel for the people in proceedings involving the constitutionality of the Oregon and Illinois women’s ten-hour laws, the Ohio nine-hour law, the California eight-hour law, and the Oregon minimum-wage law; and he had been active for interests opposing the monopoly of transportation in New England by the New York, New Haven, and Hartford Railroad. The titles of his two books, Other People’s Money and The Curse of Bigness, bespeak his point of view.

The two men were close friends, usually allied in their dissents, talking the same language in the deepest sense, growing nearer to one another each year. Yet in background and outlook, and largely in approach to their judgments, they were strikmanly different.

Before he became a judge, Holmes practiced in Boston for a dozen years with modest success. He taught at the Harvard Law School briefly, edited the twelfth edition of Kent’s commentaries expanded into four volumes, and finally published The Common Law, his famous book, which was republished in 1962 as a companion to Professor Mark Howe’s second volume of his comprehensive biography of the Justice. The Common Law is a tough book, tough for the lawyer as well as the layman, but very quotable. His approach — historical, eclectic, practical, and prophetic of his decisions on the two courts — is stated in the first few sentences. “To accomplish the task [of presenting a general view of the common law],” he wrote, “other tools are needed besides logic. . . . The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories . . . even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries. . . . In order to know what it is, we must know what it has been, and what it tends to become. . . . The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient. . . . The law is always approaching, and never reaching, consistency.”

A few months after the book was published, Holmes was appointed to the Supreme Court of Massachusetts.

Brandeis, the son of a Jewish merchant, was born in Louisville, Kentucky, four years before the Civil War began. Holmes was New England Boston to the core, fought through the Civil War, and was wounded at Ball’s Bluff, at Antietam, and at the second battle near Fredericksburg. Both men graduated from the Harvard Law School, and knew each other in Boston, where Brandeis practiced, though not intimately until Brandeis joined the Court in 1916. Their friendship began immediately, and grew stronger over the years until Holmes died in 1935.

I KNEW Justice Holmes first as his secretary (as the position was then called) in 1911-1912 for a year in Washington, and then intermittently over the following years. Whenever something took me to Washington, I went to see him. On one of those occasions, the celebration of his eightieth birthday, Mrs. Holmes had asked his former secretaries (there were thirty-one in all, of which I was the sixth) to a surprise dinner at 1720 Eye Street. She got him togged up in tails and all; and the secretaries came through the kitchen, so that when he walked downstairs into the dining room and the folding doors opened, there they were. “Ghosts!” he muttered, and then, more audibly, “Well, I’ll be damned !” Three years later when I was again in Washington at the same time of year, I sent him a bunch of roses, saying on my card that it was not hard for me to remember his birthday, as my son, Edmund Randolph, was eighty years younger. To Randolph the Justice wrote:

My dear Boy: Your charming nosegay speaks to me of the future. Some day you may like to remember an old man who spoke to you of the past. My grandmother died when I was fighting in the battle before Richmond in 1862. I remember her well and she remembered moving out of Boston when the British troops came in at the beginning of the Revolution. Later in London I talked with a man who had been a school mate of Lord Byron and a friend of Charles Lamb. This will mean nothing to you now, but if you remember it someday it will carry you back a good way. Meantime I thank you and hope that we may meet.

The letter shows, charmingly, his sense of history that was so much a part of him, that came largely from his Civil War years, and that made him feel vividly and continuously that he was a part of his country, of the country he loved the way Virginians loved their state. When he died, he left his modest fortune to the United States.

Justice Brandeis I saw only a few times. Once or twice he asked me to one of his Sunday evenings, where he and Mrs. Brandeis dispensed a frugal fare, unrelieved by alcoholic refreshment, in the California Apartments in Washington — the plainest of all apartments, bare and blank, a little shabby, unadorned by any pictures except a few fading photographs. The Justice would pick out one or two of the guests for talk about their particular work, in his little study off the main living room. He would ask searching questions. When I was chairman of the National Labor Relations Board in 1934-1935, for instance, he wanted to know whether we were developing a body of labor law, and what principles we were building up, such as majority rule for labor unions. His talk was never personal, never gay, not light. He was a dedicated reformer devoted to the improvement of the American industrial structure; patient in waiting for the reforms which he knew would come slowly, with humor rarely touching his outlook.

When he had been on the Court for only two years, Holmes wrote Laski that he had put a quotation from Byron in an opinion “to pain the boys — and the first that reported, Brandeis, shook his head,” so he took it out. I should like to have seen the quotation, but we have no other reference to it. Brandeis, not altogether human in his contacts, was not easily amused but was always courteous to his associates on the bench, even when, as Holmes once put it, they descended to the vernacular.

Brandeis was without any of the flexibility of good talk — I shouldn’t be surprised if he distrusted general conversation without a fixed direction: it got you nowhere. There was nothing of the zealot about him. He was sure of himself, but never overbearing or vain. He was concrete, pragmatic, realistic. He had a mission, but was no mystic. He was surely something of a prophet. He was not a visionary, but held a vision of his country — a country of independent, self-reliant farmers and mechanics, largely as Thomas Jefferson thought of it. As he grew older he came to have the look and the lines of Lincoln, the look of infinite patience, the lines deepened by thought, by pondering.

Catherine Drinker Bowen when she was collecting material for her book about Holmes, Yankee from Olympus, asked Justice Brandeis whether he had ever heard Holmes express a philosophic conviction. Brandeis thought for a moment. “Holmes had a conviction,” he answered, “that a man should be free in a large way. He was a great liberator. He was a great emancipator.” Holmes’s views would have been considered liberal a couple of generations before he expounded them — his belief in Darwin and Herbert Spencer and John Stuart Mill, in the survival of the fittest and unregulated competition in the marketplace, with which went the free competition of ideas. He cared a lot about free speech; but remembering his war experiences, which were still so much a part of him, he held that in time of war speech aimed at impeding the war effort could rightly be curbed. Speaking for the Court in the Schenck case, which arose out of the First World War, he introduced the famous “clear and present danger” test: speech was protected by the Constitution unless the words were of such a nature as to create a clear and present danger that they would bring about the evils that Congress had a right to prevent. Schenck had been properly convicted, since war did involve that danger. “When a nation is at war,” he wrote, “many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and no court could regard them as protected by any Constitutional right.”

But where war was not involved, as in the Gitlow case, in which the defendant was convicted for violating a state Criminal Anarchy Act, directed against revolutionary talk advocating the violent destruction of the bourgeoisie, both Holmes and Brandeis dissented from the majority of the judges who had upheld a conviction. Every idea was an incitement, Holmes said. “Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”

Brandeis was patient and good-natured, but he was not a compromiser. In a letter to Robert W. Bruere written in 1922 he laid down his creed: Never accept evil in business as inevitable; refuse to tolerate any immoral practice (for example, espionage); do not pin too much faith on legislation, for remedial institutions are likely to fall under the control of the enemy and to become instruments of oppression. He believed in the ancient divergence between right and wrong but was not interested in discussing it theoretically. But Holmes was. Morals, basically conceived, he often said, were but the expression of individual taste. He accepted the ordinary decencies — courage, thrift, moderation, honesty, freedom of thought — because they were part of him. But they were not eternal verities. He therefore disliked natural law, which implied ultimate principles in a world which was never ultimate and had misled so many judges into falling back on easy moralistic generalities. He commented to Pollock on a book of Morris Cohen’s that the author did not lightly yield to popular superstitions — “though he made me shudder and wonder by saying that he believes in Natural Rights—I trust that it was but a façon de parler.”

With a life dedicated to reform it was inevitable that Brandeis’ views should have found their way into his opinions. They had little style, but they were direct and ungarnished, true expressions of his temperament, and sometimes a little didactic. In sharp contrast to those of Holmes, Brandeis’ opinions sometimes read like briefs, with headings and footnotes. Early in their work together Holmes told Brandeis that he was letting partisanship disturb his attitude. He was frank with him because he valued him and thought he brought admirable qualifications to his work.

And Holmes thought Brandeis’ opinions were unnecessarily long-winded. In one case Brandeis wrote “a long essay” on the development of the employer’s liability, and Holmes told him that it was out of place and irrelevant to the only question — whether Congress had dealt with the matter so far as to exclude state action. Six years later Holmes remarked a bit sarcastically to Pollock that Brandeis had written a good dissent, “showing a profound study of the art of bread-making, to uphold the constitutionality of a state law fixing the weight of loaves, against all but me.”

Holmes sent around one opinion in which Brandeis took “three pages to say what should have been said in a sentence,” but which Brandeis thought “ought to be put in solemn form because of its importance.” With the same kind of funny twist, Holmes reports to Laski that he had done his opinion for the week; the case scared him, but came out “easy and short,” and Brandeis, “who was the other way,” said he’d agree “if I cut off its tail — so it is shorter still.” Four years later Holmes was still complaining that Brandeis put in “a lot of facts which no one but he could accumulate and which overawe me, even if I doubt the form.”

ALL his life Brandeis wanted to inform and to convince. Believing in the power of reason to persuade — and he was extraordinarily convincing himself— he thought that man could be taught to control his fate. He knew that “responsibility is the great developer of men,” and therefore insisted in rate cases that the courts must consider the effect of their decisions on the officials who administered the rates — they must not be emasculated by ultimate responsibility being transferred to the courts. Holmes, on the other hand, doubted the ability of man, an irrational creature, to improve his lot, but thought he had the right to try. Professor Paul Freund of Harvard, who was Justice Brandeis’ law clerk in 1934-1935, remembers an example of his zeal to educate. He said about one of his opinions, which had gone through several revisions, that it was now convincing, “but what can we do to make it more instructive?”

Freund recalls another incident which throws light on the sharply contrasted temperaments of the two judges. When Brandeis, toward the end of his service on the Court, was approaching his eightieth birthday, his former secretaries planned a visit in his honor, doubtless having heard of the ebullient spree his brother judge had so much enjoyed on a similar occasion fifteen years before. Word came back to them that, far more than their visit, Justice Brandeis would welcome a message from each of the group telling of the public service in which he had engaged. Freund adds that when he found that more than half of his law clerks were engaged in teaching, he said with satisfaction, “Now I have a majority.”

Holmes disliked those whom he called “children of the upward and onward,” do-gooders and reformers who were constantly aiming to make the world better. What in the Civil War he had come to loathe in the Abolitionists showed, he believed, in a more extreme form in the Communists and in some Catholics, and in drys apropos of the Eighteenth Amendment — he detested a man “who knows that he knows.” This did not prevent him from becoming fond of some of the do-gooders — Felix Frankfurter, Walter Lippmann, Harold Laski, for instance. Perhaps one reason he found the reformers boring was they were always quoting facts at him. Facts were good only as pegs for generalizations, or to establish a philosophy. He wished he had a stable in which to store facts for use at need. Brandeis, with his insatiable appetite for facts, was always trying to make him study factory reports. “Talking with Brandeis yesterday,” Holmes wrote Laski, “he drove a harpoon into my midriff by saying that it would be for the good of my soul to devote my next leisure to the study of some domain of fact — suggesting the textile industry, which, after reading many reports etc., I could make living to myself by a visit to Lawrence. . . . I hate facts.” Holmes supposed it would be good for him to get into actualities touching spindles, immigration. God knows what, but he would rather meditate on the initial push and the following spin — and he quotes Theocritus, but in Greek: “Turn, magic wheel, draw homeward him I love.”

He did manage to get through a hundred pages of the Interchurch Report on the Steel Strike, as a sacrifice to Brandeis, which did not “charm” him — it had “a clerical smack, like clergymen trying to appear men of the world.” Even young Harold Laski, to whom he exposed these slight irritations, kept urging him to read “Webb on this and that — and Clothing Workers of Chicago. My boy I mean to enjoy myself if I can — to get an unexpurgated Pepys . . . but if you think I am going to bother myself again before I die about social improvement or read any of those stinking upward and onwarders — you err.” It was very unlikely that even Brandeis would make him learned on the textile workers of New England. Brandeis was a great help, but “the way in which that cuss is loaded with facts on all manner of subjects leaves me gawping.” And the facts came out on their walks together, even when the tops of the elms began to thicken with swelling buds and the spring was drawing near.

But Brandeis could be considerate, Holmes wrote. They sat on a June day in 1925 in Farragut Square and had a pleasant farewell talk, Court having adjourned, “while a cat bird played the mocking bird overhead. In consideration of my age and moral infirmities he absolved me from facts for the vacation, and allowed me my customary sport with ideas.” Yet Holmes knew, as he had said in an address at the Boston University law school many years before, that the man of the future was the man of statistics and the master of economics.

I think they were lonely men, Brandeis perhaps always, for he did not indulge in the casual pleasure of friends and the ordinary distractions of dining out, of theater, of the lighter, gayer, jesting sides of life (which Holmes loved); and Holmes was desolate after Mrs. Holmes died in 1929, when he was eighty-eight, at the end of a companionship of sixty years that “made life poetry.”

THE two Justices missed each other in the long summer vacation. After they had been together on the Court for less than two years, Holmes remarked that Brandeis always left him feeling happier about the world. In September of 1921, Brandeis told Laski that he was eager to be at work with Holmes again — their companionship had been the “crown of his life”; and a few years later, when the Court was sitting, Laski reported to Holmes that Brandeis had written that he “does not know what he would do without you there.” And Holmes reciprocated, writing Laski from Beverly Farms: “Brandeis is a great comfort in the winter, but he is not here.”

Once they drove over to Georgetown and home by a circumbendibus around the cathedral to see the white and pink dogwood and wisteria that lined the road — fleeting sights, but superlative while they lasted. Brandeis, Holmes found, was a great solace; he was wonderfully pleasant and had the lovableness characteristic of the better class of Jews, though many disliked him. And old Holmes, suspicious of his own mild outburst of emotion, added in his letter to Laski: He “always gives me a glow, even though I am not sure he wouldn’t burn me at a slow fire if it were in the interest of some very possibly disinterested aim.” Holmes knew Brandeis’ will, which was iron, and the singleness of his converting spirit.

In 1931, when they had worked together for fifteen years on the Court, from which Holmes was to resign the next year, he wrote Laski that tomorrow would be Brandeis’ seventy-fifth birthday and the papers would be full of him. “I have owed him much in the way of encouragement,” he added. Then: “He doesn’t seem even to want it.” Holmes looked for encouragement, from those who counted.

Holmes, although he disliked the traditional Holmes Dissenting — “they were giving their views on law, not fighting with another cock” — thought dissent was a “fine sport, as one is freer and more personal than when one is speaking for others as well as for oneself.” The brethren were a sure cure for a swelled head.

Since they were so often together in dissent, not infrequently against all the other Justices, it has been suggested that Brandeis influenced Holmes’s thinking. He probably did, but I doubt whether the influence effected any fundamental changes; rather, they touched matters of approach, of emphasis, of scope. Chief Justice Taft, however, believed that Brandeis had the older man in his pocket. In 1928 he wrote about Holmes to Henry L. Stimson: “I am very fond of the old gentleman, but he is so completely under the control of Brother Brandeis that it gives to Brandeis two votes instead of one.” And Taft considered Brandeis a leader of the new school of constitutional construction, which tended to encourage “socialist raids upon property rights.”

Holmes knew that he was being criticized, sometimes violently, for joining Brandeis in so many dissents. He received an anonymous letter, in the form of an ejaculation, that spoke of “a jurist of supreme position and attainments and of illustrious family . . . under the hypnotic control of a shrewder fellow-jurist whose every underlying line of action is to the end of world-control by his race of atheism, free-Iove and anarchy.” Holmes wrote to Laski, a short time before the Taft letter, that he was glad to have Brandeis dissent in a particular case as it showed that there was no pre-established harmony between them. But three months later, forgetting his concern, the old Justice was pleased to announce that there seemed to be a pre-established harmony. But after all, he was then eightyeight.

They had mild jokes together. Two weeks before Christmas in 1928 Brandeis looked in on Holmes and said he came to see how the leisure class lived.

The two men spent a good deal of their leisure together, and both enjoyed walking, like so many men of their generation, sometimes through the Botanical Garden at the foot of the Capitol, or the Smithsonian grounds. Brandeis would wax eloquent on the evils of the organization of society, though he would never go as far as Laski and didn’t agree that the present social order was morally and economically rotten. Holmes believed in laissezfaire, and that much of the modern reform was based on the fallacy of thinking in terms of ownership instead of in terms of consumption. But when he repeated these oversimplified economic theories, which were based on aperçus rather than on reading, Brandeis told him that his views were superficial and didn’t deal with the real evil, which was a question of power. He added that Holmes hadn’t seen and knew nothing about the evils that one who had been much in affairs had seen and known. “He bullies me a little on that from time to time,” Holmes added in his letter to Laski, a remark that underscores the intimacy of the two men.

Yet with all his limitations of experience in the rough-and-tumble life of the industrial world, Holmes realized the underlying inequalities between management and labor. As a young lawyer not long out of the law school, he ventured to express this view, contrary to the comfortably accepted myth prevalent at the time, that the interests of both sides were identical. “The tacit assumption,” he wrote in 1873 in the American Law Review, “of the solidarity of the interests of society is very common, but seems to us false. . . . In the last resort a man rightly prefers his own interest to that of his neighbors.”

In some ways the thinking of the two men was turned to the past, and they were both conservative. Holmes was a nineteenth-century liberal, not a liberal in the modern sense. Politically, he was the more conservative of the two. He would have voted for Coolidge in 1924, he said, if he had had a vote, He didn’t expect anything astonishing from him, but he did not want anything very astonishing. He was “far from sympathising with Croly’s [Herbert Croly, the editor of the New Republic] ratiocinatory warnings to do something — God knows what — pretty quick or look out.” The Justice’s political preference seems curious when we remember that John W. Davis was Coolidge’s Democratic opponent — Davis, who as solicitor general had argued so many cases before the Court, and who too was a conservative. Holmes thought him able and full of charm, and that he made “beautiful arguments — but I don’t feel sure that I haven’t had glimpses of a weaker side.” Holmes, a New England Republican, may have distrusted charm, particularly in a Democrat. But Brandeis went further back; he was a Jeffersonian Democrat who dreaded and hated corporate bigness, advocated legislative curbs to cut it down, and would have liked to dismember and destroy it had that been possible. There Holmes was much more a man of his day, admiring power and achievement, taking for granted as inevitable and even desirable the growth and pervasiveness of corporate power.

He detested the Sherman Antitrust Act, the effect of which, he notes, Brandeis had come to doubt. Holmes gibed at the act whenever he got a chance. In the “Hardwood” case a group of hardwood manufacturers had been established to exchange information about sales, production, and prices. The Court held this was an illegal conspiracy to restrain trade. Holmes’s dissent gently derided their conclusion. “I should have supposed,” he wrote, “that the Sherman Act did not set itself up against knowledge.” On occasion he could use stronger language. In my brief life of Justice Holmes I commented on some of his economic theories. John W. Davis when he read it wrote me that after argument in an antitrust case, he walked away from the Court with the Justice. “Mr. Solicitor,” asked Holmes, “how many more of these economic policy cases have you got?” “Quite a basketful,” Davis answered airily. “Well,” said the Justice, “bring ‘em on and we’ll decide ‘em. Of course I know, and every other sensible man knows, that the Sherman law is damned nonsense, but if my country wants to go to hell, I am here to help it.” Holmes liked to repeat that the Sherman law was based on the doctrine that everyone must compete, but no one must win the competition.

Brandeis, on the contrary, mourned the pervasively industrial America that had grown up after the Civil War. “Half a century ago,” he wrote, “nearly every American boy could look forward to becoming independent as a farmer or mechanic, in business or professional life. . . . Today most American boys have reason to believe that throughout life they will work in some capacity as employees of others.” The dominant American ideal, Richard Hofstadter has noted, has been fixed on bygone institutions. Brandeis shared that ideal, and his words might as well have been spoken by Bryan, LaFollette, or Woodrow Wilson.

Brandeis was a statesman, Holmes a philosopher. The one was interested in the particular and the immediate; the other, with a more restrained and uninvolved approach, wanted to follow the longfelt desires of the community, without interference with them wherever possible. Both realized, as Tocqueville long ago suggested, that important political questions in the United States are sooner or later resolved into judicial questions. Both were devoted to the great Court on which they served. Holmes was patrician, erect, responsive to what was gay or mischievous. Brandeis was reserved, dedicated, ascetic. Holmes will endure for his incomparable style, not only in his writing but in his person, his bearing, his standards. Brandeis will be remembered for his consecration to his country, and his belief in what he deeply felt was the American way of democratic living. This belief still largely permeates our standards, even if now only a myth.