The right of appeal to the U.S. Supreme Court from the judgment of a state supreme court at that time was basically in the hands of the state court; if it did not certify a writ of error, there was no federal jurisdiction to take the case, and the Georgia court had found no errors at trial, effectively shutting off the effort to have Frank’s appeal moved to the federal courts.
Holmes agreed with Lamar’s ruling on procedural grounds, but immediately zeroed in on what all of the procedural niceties were overlooking: the trial had been conducted amid outright intimidation of the judge, jury, defendant, and counsel. “I very seriously doubt if the petitioner has had due process of law,” Holmes wrote in a brief memorandum of his decision, “because of the trial taking place in the presence of a hostile demonstration and seemingly dangerous crowd, thought by the presiding judge to be ready for violence unless a verdict of guilty was rendered.”42
Holmes had not intended his memorandum to be published; it was meant “only as a suggestion to my brethren if any of them could see a way to giving relief.” But it received enormous attention in the press, and Holmes found himself getting both “letters from sensitive females crying for mercy” and praise from the New York Times and other Northern and liberal publications for pointing out the manifest injustice of Frank’s trial. “Justice Holmes deserves the highest commendation for this human departure from the dry legal formula,” the Times wrote.43
It also pointed to another avenue for appeal: that Frank could seek a writ of habeas corpus in the federal courts, raising the claim that he was illegally confined by the state of Georgia because he had effectively had no trial at all as guaranteed by the Due Process Clause of the Fourteenth Amendment. If a federal court issued the writ, then a federal district judge could proceed with a hearing and order his release or a new trial if he found a violation of Frank’s rights under the U.S. Constitution.
For four months the habeas corpus appeal wound its way through the federal courts. On April 19, 1915, the Supreme Court issued the final decision. By a 7–2 vote, with Holmes and Hughes dissenting, the Court denied the writ.
Holmes’s dissenting opinion was extraordinarily unusual for him. It recounted in dramatic narrative detail the circumstances of the case, something he almost never did in writing opinions. His fundamental point was that the record of the trial was irrelevant when the trial itself was “a farce,” as he later termed it.44 And he pointedly alluded to his own experience as a trial justice in understanding the reality of how juries behave under duress.
“The trial began on July 28, 1913, at Atlanta, and was carried on in a court packed with spectators and surrounded by a crowd outside, all strongly hostile to the petitioner,” Holmes wrote.
On Saturday, August 23, this hostility was sufficient to lead the judge to confer in the presence of the jury with the chief of police of Atlanta and the colonel of the Fifth Georgia Regiment, stationed in that city, both of whom were known to the jury. On the same day, the evidence seemingly having been closed, the public press, apprehending danger, united in a request to the court that the proceedings should not continue on that evening. Thereupon, the court adjourned until Monday morning. On that morning, when the solicitor general entered the court, he was greeted with applause, stamping of feet and clapping of hands, and the judge, before beginning his charge, had a private conversation with the petitioner’s counsel in which he expressed the opinion that there would be “probable danger of violence” if there should be an acquittal or a disagreement, and that it would be safer for not only the petitioner but his counsel to be absent from court when the verdict was brought in. . . . When the verdict was rendered, and before more than one of the jurymen had been polled, there was such a roar of applause that the polling could not go on until order was restored. . . .
Whatever disagreement there may be as to the scope of the phrase “due process of law,” there can be no doubt that it embraces the fundamental conception of a fair trial, with opportunity to be heard. Mob law does not become due process of law by securing the assent of a terrorized jury. We are not speaking of mere disorder, or mere irregularities in procedure, but of a case where the processes of justice are actually subverted. In such a case, the Federal court has jurisdiction to issue the writ. . . .
This is not a matter for polite presumptions; we must look facts in the face. Any judge who has sat with juries knows that, in spite of forms, they are extremely likely to be impregnated by the environing atmosphere. And when we find the judgment of the expert on the spot—of the judge whose business it was to preserve not only form, but substance—to have been that if one juryman yielded to the reasonable doubt that he himself later expressed in court as the result of most anxious deliberation, neither prisoner nor counsel would be safe from the rage of the crowd, we think the presumption overwhelming that the jury responded to the passions of the mob. . . . It is our duty . . . to declare lynch law as little valid when practised by a regularly drawn jury as when administered by one elected by a mob intent on death.45
The case affected Holmes far more than usual for him. He mentioned to Einstein “a dissent as to which I feel a good deal,” and alluded to the case in a half dozen other letters at the time. His old friend John Chipman Gray had died just two months earlier, at the end of February, which had been a strain and a shadow over his life, he told his friends, and may have added to the acuteness with which he felt the matter.46
Holmes had written to Gray as soon as he heard the news of his terminal illness that his wife, Nina, had sent him in confidence; enclosing it with a covering note to Nina—“Of course, I write to him as I should at anytime. If it isn’t suitable to his condition just chuck it into the fire”—his letter was full of warm reminiscences of their pleasant times together. The news of the death of his oldest friend a week later came as no surprise but inspired some poetic reflections on the passing of the years that he sent his young friend Baroness Moncheur:
A very well mannered old party, time. He doesn’t speak loud, or come bulging in on you as some ingenuous young secretaries will, but he comes up as soft footed as a cat . . . and by a by he lays a soft paw on your sleeve, so gently. And then slowly, like the dog in Faust’s study, he begins to swell, and grow more like a tiger. And the door is locked and one must await his doings.47
At the end of the term death struck in a more violent form. On June 22 his sixty-year-old messenger George Marston was badly burned trying to put out a blaze in his home that began when the curtains caught fire, and he died two days later in Freedmen’s Hospital in the District. Holmes stayed for the funeral, delaying their departure to the north. “His death was a good deal of a shock, and I was attached to him as he had been with us in one capacity or another almost from my first going to Washington,” he told the baroness.48
The Frank case remained in the headlines throughout the summer. Although Holmes took his usual tough-minded satisfaction in shocking one woman who “began to talk to me about his innocence”—by telling her that he “never had read the evidence and didn’t care whether he was innocent or guilty”—he was oddly moved to receive a long letter from Frank. It was written from the State Prison Farm in Milledgeville, Georgia, just a few weeks after the governor, “at peril of his own life” as Holmes correctly noted, commuted Frank’s death sentence to life imprisonment the day before his scheduled execution on June 22.49
Frank wrote that now that all of his appeals were exhausted, he felt free at last to thank the justice for having “diagnosed the situation with rare insight and sagacity,” and for recognizing that “my trial could not have approximated justice.” He concluded, “My life is preserved, and I live on in the confident trust, in God and man, that the day is not far distant when Truth and Reason will hold sway.”50
A month later, a lynch mob, openly organized by the leading citizens of Phagan’s home town of Marietta—calling themselves the “Knights of Mary Phagan,” they included a former governor of Georgia, the town’s former mayor, and the current s
heriff of the county—abducted Frank from prison and hanged him on an oak tree in broad daylight. Picture postcards of the lynching were sold throughout the South.
Despite Holmes’s insistence that he had no opinion or concern about Frank’s guilt or innocence, Frankfurter recalled years later Holmes saying to him that a man who could write to him so sensitively “couldn’t have raped and murdered a girl.”51
THE COURT MAJORITY’s willingness to read the word “liberty” to encompass the right of a railroad to fire an employee who joined a union, but not protect a man convicted of murder under the threat of mob violence, was another stark reminder to Holmes of his isolation on the Court. Hughes was his one reliable ally. “There have been and will be other cases in which Hughes and I stand back to back,” Holmes remarked right after their Frank dissent. Hughes was a man of “character and courage” and had been “good wise and consoling company” in several other important cases as well.52 But at the end of the 1915–16 term Hughes resigned to accept the Republican nomination for president to run against Wilson in the fall.
Outside of the Court, Holmes’s young friends remained a source of companionship as well as encouragement to keep fighting for his views. There was a new group living at the House of Truth as Frankfurter and the original residents moved out, but the dinners and conversation remained as lively and engaging as ever. Introduced by Frankfurter to the other young lawyers who had taken his place at the house, a series of Holmes secretaries lived there during their years with the justice, beginning with George Harrison in 1913, followed by Bundy in 1914, and Belknap in 1915.53
On Holmes’s seventy-fifth birthday, in March 1916, Fanny organized a surprise party, sneaking the whole group of young people into 1720 Eye Street after Holmes had gone upstairs following a quiet dinner with a few friends. Suddenly the whole house came alive with the sound of birds. Coming down to investigate, he found the drawing room filled with “all the gang,” tootling away on bird calls, which Fanny had purchased from a street vendor she had noticed on F Street. Just as he began to “think in dismay” that he had nothing to offer his guests, the doors to the other room opened and there was a supper laid out, with a bowl of “very judicious punch.” They stayed up laughing and talking past midnight. Describing it all afterward to Baroness Moncheur, he wrote, “These younger men (lawyers from the Departments, etc.) and women (some of them making their own living and good looking and intelligent) are very good to the old fellow and help to keep him young.”54
Among the other regular visitors to the House of Truth now were two “able chaps,” Walter Lippmann and Herbert Croly, who had impressed Holmes with the precociously masterful books they had written on American politics. Proposing a new approach that rejected both “the chronic partisans and the social revolutionists,” they had appropriated the label “liberal” from its nineteenth-century connotation of laissez-faire to describe their ideas. Liberalism, Lippmann explained, was not a political ideology but an intellectual transition from the old party politics; it emphasized protection of civil liberties and pluralism in society along with meaningful social legislation to democratize the new industrial economy. “These same fellows,” Holmes reported to Ethel Scott, “have just started a weekly paper The New Republic that I am hoping well for, not without anxiety.”55
While as usual unmoved by their enthusiasm that “universal bliss would ensue if the world would only get a move on and obey when the New Republic says Hocus—Pocus—Presto—Chango,” as he put it, he was flattered by the articles in the magazine praising his decisions, notably his dissents in Coppage (“the opinion of a judge who deals with things, not words, and who realizes that a document which is to rule a great people must in its very nature allow for a wide and growing field for experimentation”) and Frank (“the delivered opinion of the most distinguished intellectual and moral membership of the United States Supreme Court”).56
And on his seventy-fifth birthday Lippmann had written a beautiful tribute in the magazine explaining “why young men feel themselves very close” to Justice Holmes. “He wears wisdom like a gorgeous plume,” Lippmann wrote, “and likes to stick the sanctities between the ribs.”57
Just when it looked as if his intellectual isolation on the Court had hit bottom that summer, Holmes was joined by the man who would be his closest friend on the Court for his remaining fifteen years on the bench, and his most potent ally in his efforts to make a lasting mark with his ideas of the Constitution, and of the purpose of law in society.
THE NOMINATION OF Louis D. Brandeis to the Supreme Court by Woodrow Wilson in January 1916 was the first ever to be subjected to the scrutiny of a Senate committee hearing. Brandeis had made his share of enemies, and all were now out to get their revenge by testifying against the nomination. Adding to the campaign against him was a scarcely veiled undercurrent of anti-Semitism, stirred up to block the first Jew ever named to the high court.
In Boston, Brandeis had made a million dollars by age fifty, and another million over the next decade, as an extremely successful corporate lawyer, representing leading business interests of the city. He had then turned his considerable energies to working for the great public causes that fired him. The press dubbed him the “People’s Attorney” as he took on the abuses of large insurance companies and railroad conglomerates. He once explained that just as some wealthy men bought diamonds or yachts, his “luxury” was to invest his surplus income in solving a problem “for the people” without compensation.”58
He had experienced little overt anti-Semitism in his early years in Boston, and was so inner-directed that he had scarcely seemed to notice the few snubs that were directed his way. But when he took on the New Haven Railroad in 1912 as an “unregulated monopoly,” the company fired back by subsidizing a rabidly anti-Semitic publication that accused him of doing the bidding of a secret cabal of international Jewish bankers. Brandeis had also earned the resentment of the Boston bar and Beacon Street by upholding the very moral standards that were once the birthright of Brahmin society, but now were giving way to the rough-and-tumble of free-market capitalism. Brandeis insisted that companies owed a duty not just to shareholders but to the community, and refused to trade favors in the usual professional courtesies with opposing counsel, insisting that he owed his duty to his client alone.59
The nomination hearings began with a barrage of hostile witnesses who accused Brandeis of “dishonorable” conduct for working against the interests he had once represented as an attorney. Taft wrote to a newspaperman he knew,
It is one of the deepest wounds that I have ever had as an American and a lover of the Constitution and a believer in progressive conservatism, that such a man as Brandeis could be put in the Court. . . . He is a muckraker, an emotionalist for his own purposes, a socialist, prompted by jealousy, a hypocrite, a man who has certain high ideals in his imagination, but who is utterly unscrupulous . . . a man of infinite cunning.
Brandeis, in 1914
President Abbott Lawrence Lowell of Harvard circulated a petition opposing the nomination that bore the signatures of many leading Brahmin names, and letters in opposition poured into the Senate from Wall Street firms.60
Holmes privately worried that the controversy would hurt the Court no matter what the outcome, but he wrote to Mrs. Stevens during the nomination fight, “All that I can say is that I have known him ever since Sam Warren got him to come to Boston—and that he always has left me when he has called feeling encouraged about the world and that I have met a good man.”61 On June 1, 1916, the Senate finally approved Brandeis’s nomination on a 47–22 vote, with all but three Republicans opposed.
Holmes sent a one-word telegram to his old friend: WELCOME.62
IN EVERYTHING BUT intellect, Brandeis could have been the anti-Holmes. A moral idealist where Holmes was a skeptic, an ascetic where Holmes was a bon vivant, Brandeis above all worshipped facts—and Holmes loathed them. One of Brandeis’s favorite sayings was a line from a sonnet by Goethe: In der Beschränkun
g zeigt sich erst der Meister, in working within limitations the master reveals himself. He exhaustively prepared his cases and was a devastating cross-examiner, sticking to the point relentlessly with a preternatural calm that was far more disconcerting than attorneys who bellowed at or badgered witnesses.63
In 1908, in the landmark case Muller v. Oregon, in which he successfully defended Oregon’s law limiting working hours for women to ten hours per day, Brandeis had filed a brief that ran 113 pages, only two of them dealing with the law; the rest was a compendium of social science research, statistics, medical evidence, reports on the effects of similar legislation in other countries. Known immediately as a “Brandeis brief,” it forever changed the way cases were argued before the Court.64 As a justice, Brandeis would send his secretaries to hunt up data from obscure sources and expect them to stay up all night writing up their findings, then work with him through endless revisions of his footnote-studded opinions, as different a life from that of a Holmes secretary as could be imagined.65
Brandeis’s secretaries called him “Isaiah,” and never detected any but the faintest glimmers of a sense of humor in him. (“You liked him like you like the Washington Monument,” the journalist Marquis Childs observed.) Brandeis lived in the Stoneleigh Court apartment building on Connecticut Avenue, around the corner from Holmes’s house, and was notorious for the austere simplicity of his life there, and the meager meals he provided his guests. One of his secretaries recalled slices of roast beef carved so thin “you could see through” them. It became standard knowledge that anyone invited to the Brandeis home for dinner had better eat a full meal ahead of time.66
The Stoneleigh Court apartments
Yet the friendship that Holmes and Brandeis instantly formed was above all a kind of electric recognition of intellectual kindred spirits. Holmes found Brandeis’s intelligence a welcome relief to the isolation he had felt among his distinctly less brilliant brethren, and his new colleague’s unwavering faith that ideas vitally mattered in the law as they did in life buoyed him in his doubting moments. Brandeis, who would call Holmes’s companionship “the crown of his life,” wrote to Laski a few years after joining the Court, “I am impressed even more with the great work Judge Holmes has done and by the beauty of his character. He deserves the Great Gift of Eternal Youth with which he has been endowed.”67
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