II. The Supreme Court Story: The Two Minds of Louis Brandeis

     The story of the Whitney and Ruthenberg appeals is the story of the two minds of Louis Brandeis.  One case he didn’t want to decide, but was forced to; the other he did want to decide, but was unable to.  One case impelled him to apologetic concurrence; the other provoked him to uninhibited dissent.  One case was to be resolved by procedural rules; the other on the merits with a new vision of the First Amendment.  All of this changed unexpectedly . . . and the two minds of Louis Brandeis melded into one.

A.  If At First You Don’t Succeed . . .

     With Anita Whitney’s case still pending before the Supreme Court (and held over to be considered along with Ruthenberg v. Michigan in the October term of 1925), her legal team mulled over the arguments that might finally win the day.  Their brief focused on the state’s infringement of Whitney’s liberties of assembly, speech, and association protected under the Due Process Clause of the Fourteenth Amendment.  Specifically, the brief contended that a “statute which is applied to attach penal consequences to joining an organization still in its formative stage, because that organization subsequently acquires over defendant’s protests a questionable character, imposes a ‘previous restraint’ upon the right of assembly.”  Moreover, the brief argued that the Communist Labor Party of California’s convention of November 9, 1919, had no quality of incitement, and that Whitney’s conviction would have violated due process even if she had participated in all the purposes and activities of the convention.  This was so because nothing short of “incitement to violent action” can be punished without infringing the rights of free speech and assembly.  Distinguishing Whitney’s case from Gitlow, in which the Left-Wing Manifesto was held to be a call to illegal mass action, the brief stressed that the program of Whitney’s party (recognizing the “long and valiant struggles and heroic sacrifices” of the IWW “in the class-war”) was no more than a “generalized statement of collective sympathy,” and could not be construed as any type of incitement, much less the “direct incitement” found in Gitlow. ^[96]