What would Louis Brandeis do about Supreme Court ethics?

Supreme Court Justice Clarence Thomas is making headlines again — this time for accepting hospitality from his good friend, Dallas real estate entrepreneur Harlan Crow, who also reportedly purchased Thomas’s boyhood home in Georgia and has funded other projects for the justice and his wife. Democrats are calling for an investigation; Republicans dismiss such attacks as rank partisanship against Thomas’s conservatism. It might be a revealing exercise to imagine a fictional conversation between another justice and his spouse, whom opponents criticized for their left-wing political interests.

The dialogue below is an imagined discussion between Justice Louis D. Brandeis and his wife, Alice Goldmark Brandeis. President Woodrow Wilson appointed Brandeis as the first Jewish justice to the U.S. Supreme Court in 1916. Most of this fictional conversation is based on facts surrounding the Brandeises’ lives, as might be compared to Justice Thomas and his wife, Virginia, frequently in the news for alleged conflicts of interest.

The scene: The Brandeises’ modest 5th-floor apartment on California Avenue, Washington, D.C. 

The decade: Roaring Twenties

Alice: Hi, honey. How did your work go at the court today?

Louis: Well, as the only Jew on the Supreme Court, I had to deal with one of my antisemitic colleagues again.

Alice: What happened?

Louis: Justice McReynolds refused to have his photo taken with me, and he will not hire Jewish law clerks. He also rejects any clerk applicant who wears a wristwatch. Only pocket watches are acceptable.

Alice: But, remember, you refuse to own some modern conveniences, too, like a car. As for McReynolds, I had hoped that such blatant discrimination would disappear after your appointment.

Louis: Me, too, but, even worse, I’m still considered a “Bolshevik” because of my religion and my pro-labor positions before I became a justice.

Alice: By the way, dear, I’m supporting two Italian immigrant anarchists in Massachusetts.

Louis: Nicola Sacco and Bartolomeo Vanzetti?

Alice: Yes, I offered their families our Boston home as a place to stay during the trial for allegedly murdering a guard and paymaster during an armed robbery.

Louis: You know, Alice, we occasionally have cases before the court involving anarchists, so please be careful. I have to maintain judicial objectivity, especially since I wrote my anti-corporate book, “Other People’s Money and How the Bankers Use It,” two years before President Wilson nominated me.

Alice: Of course, Louis. I’m not supporting anarchy, but I think even anarchists deserve due process of law, and I’m afraid Sacco and Vanzetti might not get a fair trial now that this “Red Scare” is underway.

Louis: You know that I love your gatherings of like-minded liberals here on Sunday afternoons. Just don’t organize a socialist cell with your progressive friends. It wouldn’t look right for the wife of a Supreme Court justice to pursue extremist political philosophies or be paid by a radical interest group.

Alice: Have you heard anything about that real estate mogul who wants to buy your boyhood home in Louisville?

Louis: No, as I understand, the house is to be purchased by a Turners German athletic club to become a gymnasium. Plus, it wouldn’t be kosher for me to take money from a businessman who might benefit from decisions the court issues.

Alice: But you have such fond memories of your hometown in Kentucky, even though you’ve been away for years in Boston and Washington.

Louis: I’ll always have a soft spot for my native city on the Ohio River, and just remember that our final resting place will be at the University of Louisville Law School. I’ve told them that we don’t want anything pretentious — just a simple tablet with our names above where our ashes will be interred under the school’s front portico. And I’ll donate all my pre-court papers to them.

Alice: Speaking of real estate, do you know anyone who might offer us respite from Washington’s sizzling summer heat at their home up north?

Louis: Again, let’s be careful about accepting favors from anyone. Even though the court has very few financial ethics rules, as progressives, you and I believe in avoiding even the slightest hint of government corruption. I’ve found a modest cottage on Cape Cod that we can afford.

Alice: Has anyone offered to pay to have your official portrait painted?

Louis: Yes, my clerks have, which is a nice tradition at the court, but I don’t need such a memorial. There’ll be a simple bust of me in the halls of the new court building, if Chief Justice Taft can find the money to construct it. I think a lavish marble palace on Capitol Hill is unnecessary, but you know what my former colleague, Justice Hughes, says about the Supreme Court, “The Republic endures, and this is the symbol of its faith.” May it always be so. Now let’s have one of our famously abstemious dinners, dear.

Barbara A. Perry is Presidential Studies director and Gerald L. Baliles Professor at the University of Virginia’s Miller Center. She served as a Supreme Court Fellow in 1994-95 and is the author of “The Priestly Tribe: The Supreme Court’s Image in the American Mind.” Follow her on Twitter @BarbaraPerryUVA.