“The People’s Tribune” by Elizabeth Glendower Evans

ON November 13, 1931 Louis Dembitz Brandeis, associate justice of the Supreme Court, will be seventy-five years of age. No one in all the land is more warmly loved and more profoundly respected, so much so that it is hard to remember the earlier days when, known as the Tribune of the People, his struggles against corporate interests which were encroaching on public rights won for him curses: from many now ardent in his praise. How account for his career? Has the man conceded to the times, or has he shaped the times to accept his philosophy?

Looking back, one sees that a passion for freedom belongs to Mr. Brondeis by good right. Both his father and his mother belonged to people eminent for generations in the Old World for their liberal sympathies. His mother's father had taken part in Poland's uprising in 1830. His parents when affianced lovers had migrated to this country soon after the Revolutionary outburst of 1848, they being members of a band of twenty-eight persons who had come hither with wedding chests and vans of furniture,--including a grand piano!--and accompanied by a governess to supervise the education of the children. The story of this romantic migration has been written by Josephine Goldmark, a daughter of one of the young migrants, under the title, Pilgrims of '48 and gives an illuminating impression of the Old World culture of the members of the group and of the hardships which they encountered during their earlier years in the new land. Adolph Brandeis, the justice's father, settled finally in Louisville, Ky., where he became a grain merchant whose fortunes flourished with the abounding West. His house with lawns and trees and stables became a center for musicians and other persons of gifts and talents. There Louis Dembitz Brandeis, the youngest of four children, passed his earliest days.

Louis's parents were ardent sympathizers with the Union cause, and among the earliest recollections of the children was carrying sandwiches and coffee to the soldiers. When Louis was sixteen years old his family went to Europe. On his return he entered the Harvard Law School, and my husband, studying in that school four years later, heard of the reputation which he had left as the most brilliant student ever graduated there,--a record which he holds to this day. From Cambridge he went to St. Louis where he had connections which led straight to power. But after a few months he came to Boston, drawn by friendship with Samuel D. Warren, a former fellow law-school student, with whom he entered into partnership, and drawn too, I love to imagine, by the richer cultural life which Boston offered. Here he began at once to rise to prominence at the bar, while the most exclusive doors were opened to one of his social attractions.

It was in the early spring of 1884 that my husband and I met Mr. Brandeis at the house of Prof. Barrett Wendell, then recently appointed in the English Department at Harvard, who had married a friend of my own. “Is that one of your little charges?” I inquired of Mr. Wendell, struck by the youth and the sensitiveness of Mr. Brandeis's face; and amazed was I to learn that this seeming lad was the “Brandeis” of whom I had heard from my husband since his law-school days. The two men were instant in recognizing their sympathy with each other. Mr. Brandeis became a constant visitor at our house, dropping in to dinner almost every week and often going on long tramps or on boating excursions on Sundays, I sometimes along, a fascinated auditor of their endless discussions. My husband died in 1886, and Mr. Brandeis thereupon silently made himself as it were my big brother. What my life would have been without his friendship and that of his wife, it is impossible for me to imagine.

DURING Mr. Brandeis's first years at the bar, he gave himself with assiduity to the practice of his profession. But gradually his cases aroused his wider thinking and disclosed problems little suspected in those days by the world at large. It was in the late '80's that he showed in his talk that the function of labor unions in settling wages was arresting his thought. He was often in conference with John F. O'Sullivan, a labor reporter of The Boston Globe, and with his wife who, as Mary Kenney, had made her own record in Chicago. Both Mr. and Mrs. O'Sullivan were redoubtable labor leaders. Mr. Brondeis found them out somehow, and he tells today how his talks with them in their home contributed to his insight into the life and the problems of the working people.

He came sharp up against the strike problem in the late '80s when a client called on him to intervene in a wage contest in his shoe factory. Here he saw the ignorance of the workers of economic conditions from which they were called on to suffer, and he saw the employers scarcely less ignorant.

Like the man she writes of, Mrs. Evans has throughout her life been in the thick of the fray in those causes and movements that have lent drama to the struggle in New England for old rights and new incarnations of the common weal. Summer after summer she has been a member of the family at Chatham, Cape Cod, and there is no one who could with surer and more intimate insight draw the friend no less than the public champion and the judge on his seventy-fifth birthday.

140 / MR. JUSTICE BRANDEIS

“You say your factory cannot continue to pay the wages the employees now earn. But you don't tell me what those earnings are. How much do they lose through irregularities in their work? You don't know? Do you undertake to manage this business and to say what wages it can afford to pay while you are ignorant of facts such as these? Are not these the very things you should know, and should have seen that your men knew too, before you went into this fight?”

The result of this contest between master and men was that Mr. Brandeis was agreed on by each side as an arbiter, and the outcome was a sustained wage and regular work for all the employees every day in the year. From that day on the problem of regularizing work has lain in his mind; and the recent recognition that it is the employer's duty to provide the funds to carry labor through its out-of-work periods has grown with him from that far back controversy.

Time and space are too scant to tell here of the many controversial problems in which he took part,--steam and trolley rates, gas rates, minimum wages, Alaska land frauds, savings bank insurance, and many others. In all of these his mind moved like that of a statesman from separate issues to basic principles, always some ten years ahead of the times, and laying out principles which came gradually to be accepted by the more enlightened sections of the world at large. And many are the workers who remember the young champion who sprang to their aid, as it were out of the skies, to win for them some measure of social justice.

lt was in 1896, while Mr. Brandeis was still devoting himself closely to his private practice, that he came into collision with powerful persons who earlier had given him cordial welcome to New England. The West End Railway in Boston applied for a charter to construct and operate an elevated railway carrying an immensely long lease, asked on the plea that except under terms which would give the road practically a permanent right of way it would be impossible to obtain the necessary capital. Mr. Brandeis happened to know that much shorter leases were eagerly sought in Canada, and he thought of the time when the people would become aware of this fact and would resent that their property, unknown to them, had been sold for a song. Was it his duty, he questioned, thinking aloud on the river on Sunday mornings, to leave his private practice and jump into a fray which was none of his making? On the other hand, how should he stand in his own eyes if he held his peace when he saw the people's interests jeopardized?

AS a result of these reflections, he appeared as a private citizen at the hearing, and challenged the bill. The proponents were furious; but the bill was defeated and the next year they returned offering terms far more favorable to the public than had been previously offered. Meanwhile, a Public Franchise League was formed with Mr. Brandeis as its unpaid counsel, which year after year examined every public utility bill that appeared at the State House, with the result that Massachusetts escaped the fate which overtook many states in those years of becoming the property of big public service interests. This league it was which saw to it that the leases of various subway bills were reduced from seventy, and in one case from ninety-nine years, to twenty and twenty-five years, leaving the streets of Boston today the property of the city.

In 1906, as the legislature was about to adjourn, a bill to merge the Boston and Maine with the New York, New Haven and Hartford railroad was introduced. lt had for some time been known that large purchases were being made by the latter road of steamship and trolley lines in Massachusetts, and this in spite of legislation prohibiting such purchases, framed for the purpose of preventing monopoly. In reading the annual report of the N.Y., N.H. and H., Mr. Brandeis, to whom figures always “talked,” observed that the prices paid in these purchases were such as would bankrupt the road unless a monopoly were obtained which would allow a holdup raise of rates. He made inquiries of the road and of others in a position to be in the “know” and received explanations which did not explain. He then laid the facts before the Public Franchise League and it was decided that these questions should be publicly asked, even though this would affront everyone interested in upholding gilt-edged securities held by trustees “in behalf of widows and orphans.” These trustees were the first to resent this seemingly impudent challenge to their own perspicuity.

A furious contest ensued which ranged from the State House to every corner of Massachusetts. Mr. Brandeis engaged in a long series of debates with the vice-president of the New Haven. It was during this contest that one heard a charge, long whispered but now grown bold and loud, that Mr. Brandeis was not acting unpaid as a private citizen; he must be secretly retained by some big interests which were seeking to control transportation in Massachusetts. Must not this be so? For was any man ever known to give so lavishly of his professional services except for pay?

TO these assaults upon his character Mr. Brandeis made no reply. The facts, the facts, the facts, were his only answer. But in his private talk he would sometimes say: “I have no objection to those who take the merger side. There is always room for difference of opinion. What I do object to is that all 'State Street' and all 'Wall Street' should be for the merger, and among them men who, I know, are under duress. The financial powers behind this measure are so colossal that business men who oppose it must be prepared to be ruined.” Here we get a glimpse of the fight in which he had come to enlist, a fight between the freedom to which we in the United States had believed that we were born, and the corporate powers which were stretching out their talons to strangle it. And we understand how it was that when President Wilson named Louis Dembitz Brandeis an associate justice of the Supreme Court, high potentates from Massachusetts and New York flocked down to Washington to enter their protest.

What a fight this nomination precipitated! An appeal to President Eliot of Harvard College to join in the protest brought this rejoinder: “I have known Mr. Louis D.Brandeis for forty years, and I believe that I understand his capacity and his character. He was a distinguished student in the Harvard Law school in 1875-78. He possessed by nature a keen intelligence. quick and generous sympathies, a remarkable capacity for labor, and a character in which gentleness, joy and courage in combat were intimately blended. His professional career has exhibited all these qualities, and with them much practical altruism and public spirit.”

“Bob” La Follette, now his father's successor in the U. S. Senate and at that time his father's secretary, told me how President Wilson fought for Mr. Brandeis's confirmation, sending Secretary McAdoo to senator after senator with the question: “Are you with the President or against him in

MR. JUSTICE BRANDEIS / 141

this matter which is very near his heart?” The President himself gave out this statement: “I have known him. I have tested him by seeking his advice upon some of the most difficult and perplexing public questions about which it was necessary for me to form a judgment. I have dealt with him in matters where nice questions of honor and fair play, as well as large questions of justice and the public benefit, were involved .... I have received from him counsel singularly enlightened, singularly clear-sighted and judicial and above all, full of moral stimulation. He is a friend of all just men and a lover of the right, and he knows more than how to talk about the right--he knows how to set it forward in the face of its enemies ..•. ”

IN June 1916 Justice Brandeis took his oath of office on the supreme bench. And thereafter began the long line of decisions in which his passion for public justice, for a chance for the small man in danger of being downtrodden by great powers, has been translated into the legal structure of the nation.

How is Mr. Brandeis to be explained? Is it because he is one of an oppressed race and is thus sensitive to the wrongs of the downtrodden? As against this often argued thesis be it remembered that he has never suffered from racial discrimination. Prejudice against the Jews was unknown in Boston when he first came. As a more probable explanation, my mind runs back more than forty years when, a young man on the rising rung of his profession, he was retained by a religious institution to secure a subsidy from the commonwealth. He had carried the petitioners successfully through the committee stage before it became known to the small group which takes an interest in such questions. A protest was raised and the committee reopened its hearing, when the counsel for the petitioners failed to appear! In explanation of his withdrawal he said to me later, with the inward glow upon his face of one who had been under a deep religious experience, that the public discussion had showed him that his clients’ case was contrary to sound public policy.

This early questioning of the duties of those asking privileges from the state took him far. He thought of lawyers, the most highly placed in the land, accepting big fees to be recouped out of the pockets of the people for franchises of whose value the legislature had no least conception and with no one to argue the interests of the other side. Such a situation flew in the face of the ethics implicit in legal practice that assumes counsel on either side to represent opposing interests. Never, he silently resolved, would he accept a fee out of so unequal a contest.

From this resolution came his refusal to appear before the legislature in behalf of special interests, and incidentally from this came his appearance time and again as unpaid attorney for the people. The ethics of his attitude in this matter is beyond dispute. But far off, alas! is still the day when his code is even suspected by many persons of high repute.

In his private life, Mr. Brandeis is a friend of friends. He is immense in his loyalties: to ties both far and near. He has been a rare son and brother. His wife is the friend and comrade with whom he shares his whole mind. Almost forty years ago, when they were engaged to be married, she accepted his ideal of living far within the scale which his professional income would allow, keeping their lives free as no lives can be free which are pinched for money, and leaving plenty available for their public interests. His abstemious habits have grown on him. But he spends money freely for what he thinks worth while, and he is known to have poured it out like water in behalf of furthering some cause that he made his own. A few old woolen suits and sweaters, a warm corner in which to rest, a great store of books and, until recently, a canoe and a reach of water on which for many years it was his delight to paddle,--these have been his only requisites for his holidays.

Justice Brandeis's mind in his seventy-fifth year was never more swift and more sure. His conversation ranges from the times of classic history, of trade routes and the sources of food supply of Egypt, Rhodes and Attica, down to the affairs of today, when it is grappling with the newest problems of these new and revolutionary times. He has always been an immense worker.

But when the day's work is done, it is done. Only the very rarest circumstances ever enticed him into an evening conference. It has been his habit to rise at five or six o'clock, and even in the summer to put in some hours of hard thinking and writing before he joined his wife for a paddle across the wide reaches of the bay or up into narrow inland waters, or latterly for a walk on the moors.

The fierce contests of youth lie far behind. As a judge of the court of last resort, he is debarred from taking public part in contests. But he does not chafe at the limitations of his position. An opinion which plumbs to the depths is worth making. If it is a minority opinion, it is worth the making all the same. He was always free from acrimonious contentions. There is no criticism of judges who speak on the other side. “The Lord is in Israel” one seems to hear him say- but in imagination only, for his words are unbuttressed by spoken religion. To think problems through to the far end, to speak for the right as he sees the right, that he conceives is the greatest service he can render. And always he remains in his sympathies the Tribune of the People.

Lavender and Snow

“Lavender bags,
Would you care to buy?”

Her plea on the wind,
A broken cry;
Her skirt, ice-carven
To her thigh.

“Lavender bags, Three for a quarter--”
Strange merchandise
For winter barter!

Lavender bags
Tinseled with sleet;
Lavender ... snow,
A quaint conceit--
Breathe on your fingers,
Stamp your feet!

Peddling lavender
Zero weather--
A girl must keep body
And soul together.