Thurman Arnold: A Biography

Vol. 16 No. 3 (March, 2006) pp.198-201

THURMAN ARNOLD: A BIOGRAPHY, by Spencer Weber Waller. New York: New York University Press. 2005. 288pp. Cloth. $40.00. ISBN: 0-8147-9392-4.

Reviewed by John R. Vile, Department of Political Science, Middle Tennessee State University. Email: jvile [at] mtsu.edu.

Thurman Arnold (1891-1969) was one of 100 lawyers that I included in a recent book entitled GREAT AMERICAN LAWYERS, so Arnold is hardly unknown, but his is no longer a household name. Accordingly, this biography by Spencer Weber Waller, a Professor of Law at Loyola University Chicago, is a welcome one that builds on Arnold’s own fairly voluminous writings, on previous secondary works, and on personal interviews that Waller conducted with Arnold’s former associates. Although Arnold spent most of his life in the East, Waller believes that Arnold’s connection to Laramie, Wyoming, where he was born, raised, and spent part of his early carrier, and where his wife retired after his death, strongly influenced him.

After a brief stint at Wabash College in Indiana, Arnold attended Princeton and then went to Harvard Law School. Partly because of his western background, he was an outsider in both institutions. Rather than returning home to Wyoming to join his father’s firm, Arnold began practicing law in Chicago. He was mobilized for artillery service in France in World War I, and then returned to Laramie. Laramie elected him mayor, and he helped found the College of Law at the University of Wyoming. His family has continued to maintain a close association with the university, which now houses his papers. Recommended by a former classmate at Harvard, the West Virginia University College of Law appointed him as dean in 1927, during which time he met Charles Clark, soon to be Dean of the Yale Law School, who later lured him there.

Arnold worked for a time on empirical studies of the law but found the results to be fairly meager and eventually gravitated to the legal realism for which Yale was then known. He published numerous articles and reviews but became best known for two iconoclastic books, THE SYMBOLS OF GOVERNMENT and THE FOLKLORE OF CAPITALISM. The former primarily relied on insights from amateur psychology and semiotics, while the latter embraced a pragmatic role for government in the economy. Arnold disdained theory, including hallowed concepts like democracy and property rights. Arnold and a colleague applied the same irreverent attitude to a casebook on trials and appeals.

Even while at Yale, Arnold accepted a number of positions within the Roosevelt Administration, but Yale eventually announced his “resignation” when he accepted a full-time position as head of the Antitrust Division of the Department of Justice in 1938. Ironically, Arnold had previously ridiculed anti-trust enforcement as a way of substituting appearances for realities. Moreover, the Administration was divided into those who thought the key [*199] to conquering the Great Depression was industrial management and planning, like that which the New Deal had incorporated into the codes of competition that industries had drawn up under the National Industrial Recovery Act, and those who thought that trusts were the problem, creating what Arnold believed to be major “bottlenecks” within the economy.

During Arnold’s tenure, the Department grew exponentially both in number of employees and budget, and it engaged in its most extensive litigation. His division pursued trusts in the automobile, dairy, oil, and aluminum industries, the medical profession, the railroads, and even the New York wooden ice-cream stick industry; Arnold often personally argued the cases before the U.S. Supreme Court. More controversial, especially among fellow New Dealers, was his belief that anti-trust should also apply to union activities. Arnold achieved a high public profile, giving frequent speeches, and even delivering a nationwide address over the Mutual Broadcasting Network when he left his post.

Although press releases portrayed Arnold’s appointment to the U.S. Circuit Court of Appeals for the District of Columbia as a “promotion,” many within the administration were glad to see him go. Thurman’s tenure on the D.C. Circuit, which was not, as Waller points out, as prestigious a post as it is today, was relatively short-lived. Arnold did not write any anti-trust decisions, but did establish a few landmarks, including ESQUIRE v. WALKER (1945), overturning an attempt by the post office to impede the circulation of ESQUIRE magazine. A man of action, Arnold eventually found himself bored with his work on the court, and he returned to private practice.

He first established a brief partnership with Arne Wiprud that dissolved after a failed attempt to obtain the Pullman Corporation for a group of investors. He then teamed with Abe Fortas, whom he had first met at Yale, and Paul Porter, with whom he had worked for a time in government, in a firm that still bears the Arnold and Porter names. Each partner had different personalities and complimentary strengths. Waller portrays Arnold’s forte as that of seeing the big picture. Acknowledged throughout his life as a “genius,” Arnold often advanced ideas that initially looked ridiculous but that eventually provided the solution to complicated legal issues.

With the possible exception of his work in anti-trust, Arnold’s most important and heralded work was that which he and his firm performed, mostly pro bono, on behalf on individuals accused under the loyalty program that the Truman Administration initiated during the Cold War. Although political scientists might exercise their own skepticism about the formula for “billable hours” that it used to make the computation, the firm estimated that it gave more than $2.5 million of services to defending Owen Lattimore, an Asian expert at Johns Hopkins University. The firm somewhat limited its work by refusing to accept cases of known communists. Although this enhanced its success and left more difficult cases to others, its primary motive appears to [*200] have been a desire not to lose control of such cases to the Communist Party.

Arnold brought to his firm a hefty retainer from Coca Cola, one of the few large companies that he thought competed fairly. In part because of the other partners, in time, the firm accepted business from many corporations that Arnold had previously prosecuted. Arnold himself became one of the top advocates before the U.S. Supreme Court. Waller says that Arnold excelled in his ability to write a “simple declarative sentence” (p.159). A personal friend and former associate of a number of the justices, Arnold approached his arguments more as conversation than as a declamation and with less reverence for external forms than most of his colleagues. Those without such personal connections would undoubtedly find it difficult to replicate such techniques.

One of Arnold’s most famous victories was his success in springing the poet Ezra Pound, who had collaborated with the fascists in Germany, from a mental hospital. Arnold recognized that government attorneys, with no apparent intention of initiating a prosecution against a man they believed to be insane, were unwilling to dismiss the charge of treason against Pound unless specifically asked them to do so.

Waller provides some insight into Arnold’s personal life. In addition to highlighting Arnold’s humor, Waller describes his ties to the West, recounts his drunken escapades with William O. Douglas when both were on the Yale faculty, describes his relationship with his wife, the former Frances Longam, to whom he was married for more than a half-century, recounts the family’s associations with socialites, Cissy Patterson and Evalyn Walsh McLean, and says that Arnold took a more active role as a grandparent than as a parent. The book has eight pages of black and white photos that picture Arnold and his family, but includes no pictures of the family’s Summerhill home in Arlington or the Lafayette House in Alexandria, Virginia, where they later moved.

Arnold had difficulty writing his autobiography, which he ultimately published under the title FAIR FIGHTS AND FOUL. President Lyndon Johnson, who, as vice-president, had helped celebrate Arnold’s seventieth birthday at the White House, called Fortas, who had long been a personal friend, from the firm to the U.S. Supreme Court in 1965. Although Arnold worked to get him back after Fortas resigned in partial disgrace from the Court, Arnold’s power at the firm had by then so weakened that he did not succeed in this endeavor. In his latter years, Porter resigned from the American Civil Liberties Union, on whose board he had long served, because he thought it was promoting civil disobedience, and he supported the War in Vietnam at a time when most of his liberal associates had abandoned the cause as largely hopeless. Arnold suffered a number of heart attacks in his later years before dying in his sleep in 1969.

Arnold’s firm remains a powerhouse in Washington, D.C. Waller observes that, like Arnold, it embodies the [*201] contradictions among “a commitment to liberal values, pro bono work, and the representation of both the underdog and the business elite” (201).

One strength of Waller’s biography is his ability to convey Thurman’s irreverent humor through letters that he wrote, pranks that he played, and comments by associates. Waller presents Arnold as a brilliant but somewhat disorganized and disheveled professor. This reviewer would have liked to learn more about Arnold, the litigator. One passage in the book does a good job of conveying what made him such a good advocate before the U.S. Supreme Court, and Waller tells a bit about Arnold’s work defending individuals before congressional committees, but he does not say much about his techniques before other courts.

The broad range of Arnold’s activities testifies to his genius. In addition to colleagues, he influenced or mentored such legal luminaries as Edward Levi, Patricia Wald, Nicholas Katzenbach, Charles Reich, Gerald Stern, and others. Waller has succeeded in capturing the essence of a lawyer, often described as a blend of Voltaire and a cowboy, who made such important contributions to twentieth century jurisprudence.

REFERENCES:

Arnold, Thurman. 1965. FAIR FIGHTS AND FOUL. New York: Harcourt, Brace and World.

Arnold, Thurman. 1937. THE FOLKLORE OF CAPITALISM. New Haven: Yale University Press.

Arnold, Thurman. 1935. THE SYMBOLS OF GOVERNMENT. New Haven: Yale University Press.

Vile, John R. (ed). 2001. GREAT AMERICAN LAWYERS: AN ENCYCLOPEDIA, 2 vols. Santa Barbara: ABC-CLIO.

CASE REFERENCE:

ESQUIRE, INC. v. WALKER, 80 U.S. App. D.C. 145 (1945).

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