Holmes's Friend

On a rainy, misty evening in Washington, 20-odd years ago, a tall, frail, aquiline man was striding hurriedly home for his punctual 7 p.m. dinner. Turning a corner, he bumped spang into another hurrying stroller, a large, portly man with walrus mustaches.

The big man seized the other's hand and said: "Isn't this Mr. Brandeis? I am Mr. Taft. I once did you a great injustice, Mr. Brandeis. I am sorry."

"Thank you, Mr. Taft."

"Good night, Mr. Brandeis."

"Good night, Mr. Taft."

William Howard Taft had been one of the seven former presidents of the American Bar Association (including Elihu Root) who had signed a petition in 1916 to the Senate Judiciary Committee declaring that Louis Dembitz Brandeis was unfit to serve as an Associate Justice of the U.S. Supreme Court.

The measure of that "unfitness" had not been his legal ability: the "Brandeis Brief" had revolutionized legal presentations of evidence and argument; he had personally won resounding court victories over the greatest reigning U.S. barristers for a score of years; Chief Justice Melville W. Fuller had called him "the ablest man who has ever appeared before the Supreme Court of the United States." But the objection to Brandeis arose because he was a man of original, unconventional economic opinions, and he held them with moral fervor.

In spite of Taft's opposition Brandeis was seated--on the same bench with his closest friend since 1879, cavalry-mustached Oliver Wendell Holmes Jr. The reactionaries of the day had missed the point about Louis Brandeis. whom they had sneeringly dubbed "Saint Louis of Boston." He was no political radical. He was almost mystically a believer in the individual. The son of a middle-class Bohemian immigrant who had fled after the European revolutions of 1848, Brandeis was born (Nov. 13, 1856) into the semi-frontier society of Kentucky, in an atmosphere of deeply felt, unquenchable individualism.

Uncle Lewis Dembitz helped nominate Lincoln at Chicago in 1860. With his mother, young Louis, age 5, bustled about --when the fighting came near--carrying baskets of food and coffee to Union soldiers. On the day of the Battle of Bull Run he got a licking in school. But in school he got marks of 6 (perfection) in everything but penmanship (only 5). At Harvard Law School, he broke the school record with an average mark of 87. But President Eliot of Harvard grumbled at letting him graduate: he was five months short of 21 years old. On Commencement morning the trustees suspended the rules, graduated him cum laude.

As a young law student, he was admitted to the classical company of Boston's Brahmins, "chiefly because he was charming, intelligent, well-bred. Here he formed his guiding principle of austere living, reasoning that, if he kept his wants simple, he would always live well. He made a fortune, was worth $2,000,000 when he went to the Supreme Court.

But he made his money so that he would not have to make money. He said: "Nothing must deflect the magnetic needle."

With his Harvard roommate, Samuel D. Warren, Brandeis set up a law office in Boston, at Nos. 60 & 62 Devonshire Street, the first modern office in the town, shockingly up-to-date, with telephone and stenographer.

Brandeis became a precise and profound student of facts, figures, data, until he had a mastery of industrial technicalities. In 1910, when the railroads appealed to the Interstate Commerce Commission for higher rates, pleaded that they had exhausted all possible economies, Brandeis, opposing the upped rates, said: "I'll show you how to save a million dollars a day." He did, so convincingly that his suggestions became standard railroad practice.

Brandeis became more & more in demand as a business adviser on his terms: to oppose any proposed course which would harm the general situation, on grounds that what would harm the general situation would also harm the entrepreneur. He became the exponent of free enterprise, and by free he meant free; free of the "curse of bigness."his famed phrase, which he applied to monopolies; and also free of unnecessary Federal or State interference.

Liberal by blood-right, he was also liberal by comprehension. If the law was unobserved, it was a poor law and must change, but there could be no solution outside the law--no violence. To him there was no class struggle, but a failure of class to work with class.

On the bench he and Justice Holmes were complementary. Holmes was the great intuitive mind, operating from inherent genius and great solid foundations of history and philosophy. Brandeis was the man who could prove what Holmes guessed. Economics, except in its philosophic or historic aspects, bored Holmes, aroused Brandeis.

Through many of their 56 years of friendship, the two took a daily stroll or a ride together. Holmes retired in 1932. In that year died the old order from which he and Brandeis had dissented. In came the New Deal. But the Justice disapproved its excesses, much of its method, disagreed with it totally whenever it invaded the rights of the individual, the basic American right of free enterprise.

Last week, more than two years after his retirement, in the plain, bare apartment where he had lived for 25 years with the wife he was devoted to, Louis Brandeis died, at 84. Next day the new Supreme Court met for the first session of its first term under a new Chief Justice. Harlan Fiske Stone is a man who solidly stands behind the solid words of Louis Brandeis: "[The makers of the Constitution] conferred, "as against the Government, the right to be let alone--the most comprehensive of rights and the right most valued by civilized men."

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