To the high court: Olive Rabe representing Rosika Schwimmer

and

Monday, May 26, 2008

It was a Friday, April 12, 1929, when Olive Rabe, counsel for the appellant, entered the old Senate chamber with its grayish walls. She walked down the red carpet toward the bench, took her assigned seat at a mahogany table, and waited for the justices to enter the small chamber from the robing room across the Capitol corridor.

Only a few other women had done what she was about to do, argue a case before the Supreme Court — the first being Belva Ann Lockwood. There in that solemn chamber, with Chief Justice William Howard Taft in the center flanked by Oliver Wendell Holmes Jr. and Louis Brandeis and their brethren, Rabe (age 40) would make the case for another woman, Rosika Schwimmer (age 51). She would be the first woman to argue a “free speech” case in the high court. For any number of reasons, it was a rare moment in Supreme Court history.

Olive Rabe was, no doubt, aware that the Supreme Court had in 1873 denied Myra Bradwell her right to practice law in Illinois, even though she was well qualified and had founded the Chicago Legal News. And as a labor lawyer and feminist, Rabe knew all too well of Justice David Brewer’s paternalist views as set out in Muller v. Oregon (1908):

“Differentiated by these matters from the other sex, she is properly placed in a class by herself, and legislation designed for her protection may be sustained, even when like legislation is not necessary  for men, and could not be sustained. It is impossible to close one’s eyes to the fact that she still looks to her brother and depends upon him. Even though all restrictions on political, personal, and contractual rights were taken away, and she stood, so far as statutes are concerned, upon an absolutely equal plane with him, it would still be true that she is so constituted that she will rest upon and look to him for protection.”

But that was history. For Olive Rabe entered undeterred and quite prepared for her oral argument. As was then the practice, the oral arguments lasted two hours, one hour per side. The arguments opened with those of the government, the petitioner. William DeWitt Mitchell, the newly installed attorney general, and Alfred A. Wheat represented the government. These men, unlike Rabe, were experienced Supreme Court advocates. Addressing the nine justices who sat before him at a long straight bench before red velvet drapes, Mitchell reiterated the arguments he had made in the lower court — but then as solicitor general — and thereafter by way of the briefs to the Court. The tenor of Mitchell’s arguments reflected his military mindset: He had served in both the Spanish-American and the First World War, attaining the rank of colonel in the latter. He had even once been a judge advocate in the Army.

Beyond the statutory arguments he tendered concerning the interpretation of the applicable naturalization laws, Mitchell advanced a more novel argument. He began that argument with a character description of Rosika Schwimmer: “The respondent is a clever woman.” By that Mitchell meant that the Court should not be misled into believing that this case was about her gender or her physical inability to bear arms in wartime. That was not the point of the case, he argued.

A “close study of the record,” Mitchell argued in his brief, showed that Schwimmer’s “attitude towards the bearing of arms … has nothing to do with her sex or age.” Rather, the real danger posed by that “attitude” was this: “[H]er opposition to the forcible defense of the [nation],” as reflected in her speeches and writings, “can be depended upon to agitate against the discharge by others of the duty of citizenship.” The potential influence of Schwimmer on the actions of others, he continued, “may be even more important than their own refusal to bear arms.” In short, Rosika Schwimmer could be denied citizenship under law because she might publicly espouse “extremist” pacifist views and thereby might discourage eligible men from fighting.

When it came time for Olive Rabe to speak to the all-male panel of justices, her main arguments were these:

  • “Congress has not prescribed ‘willingness to bear arms in defense of this country’ as a qualification for citizenship.”
  • Likewise, Congress has not declared that “a belief in pacifism [is] a disqualification for citizenship.”
  • “Until Congress provides that women shall be subject to military duty, willingness to bear arms is an irrelevant issue in the case of a woman applicant for citizenship.”

Those arguments, culled from her briefs and echoed in oral arguments, reflected the view that neither the Naturalization Board nor the courts were authorized by statute to deny citizenship to Rosika Schwimmer because of her beliefs, including her beliefs about pacifism. In the sole area where Congress had authorized an inquiry into beliefs, in Section 7 of the Naturalization Act, the power to deny citizenship was carefully confined to any “person who disbelieves in or who is opposed to organized government” or who “advocates” the overthrow of the government by “unlawful” violent acts. That provision, however, applied solely to “those opposed to government as such — in other words anarchists.” And on that score, there was nothing in the record to suggest that Rosika Schwimmer was an anarchist.

In light of that, Rabe maintained, what went on in the lower court was a cruel farce, one performed at her client’s expense simply because she was a freethinking and conscientious woman. Whereas the government discounted the gender argument, Olive Rabe emphasized it. She made the argument pointedly:

“We must again mention a fact [that] does not seem to have sufficiently impressed the petitioner — the respondent is not a man, but a woman. Yet the petitioner would have her denied citizenship because she is not willing to bear arms in defense of this country? Who wants her to bear arms? Surely not the officers of the army and the navy … ; not the male citizens of this country, who by and large want to be able to protect the ‘gentler sex” … [and] not the legislators in Congress or in the States, who could require her to serve if they thought it advisable.”

Even if her client “offered herself as a recruit,” Rabe continued, “she would be told firmly but, we trust, courteously, that ‘Recruits enlisting in the Army must be effective and able-bodied men.’” The same was true of the Navy, the National Guard and the national and state militias. Ironically, Rabe stressed, “petitioner seeks to have respondent denied citizenship for not being willing to do what the law does not permit her to do!”

The oral arguments concluded, the briefs submitted, the case of United States v. Schwimmer, No. 484, was taken under submission. The justices filed out of the Court chamber and downstairs to their conference room, which was not too far from the Senate barber shop. The Court’s four page boys awaited them, with water and cigars ready at hand.

Likelihood of success?
The odds of prevailing in the high court were against Olive Rabe and her client. By the time she had argued her case, the Court had rendered 23 opinions in free-expression cases (not all were First Amendment cases, however). The Court had denied free-speech claims in all but two of those cases. Even Holmes and Brandeis had dissented in only five of the free-speech cases they sat on together. More important, those two great defenders of free speech had recently concurred in the Court’s judgment to sustain the conviction of Charlotte Anita Whitney in Whitney v. California (1927). In short, a victory was a long shot.

Even so, it was not entirely clear how the votes would stack up. The case had “gone over for further consideration,” Holmes wrote the day after oral arguments in a letter to political science professor and friend Harold Laski. In that letter, Holmes expressed a very critical attitude towards Olive Rabe’s client. Idealists and pacifists like Rosika Schwimmer were “damned fools.” Their beliefs in ‘isms “seem to me silly,” continued Holmes, “but this hyper-ethereal respect for human life seems perhaps the silliest of all.” Years earlier, Holmes had expressed a similar sentiment in a Nov. 17, 1915, letter to John Wigmore, wherein he took sharp exception to pacifist ideology: “[D]oesn’t this squashy sentimentality … about human life make you puke? … . Oh bring in a basin.”

Given such views, how likely was it that the great Holmes would pen a favorable opinion for a woman whose cause he found “silly”? Moreover, another fact weighed on Holmes’s mind, one involving another woman — his wife. Fanny Holmes died shortly after the oral arguments in Schwimmer. In light of that, what were the chances that the grieving Holmes, then 88 years old, would rally enough energy to write a dissent, even if he were so inclined?

What Olive Rabe could not know was that Justice Brandeis was comforting Holmes, trying to get him back on his life track. To do that, and to divert Holmes’s mind from his grief, Brandeis spoke to his revered colleague about the Schwimmer case, and about freedom of conscience. Talk of the case and the principle in it were therapeutic for the grieving jurist, or so Brandeis hoped.

Meanwhile, Rosika Schwimmer was anything but passive. “In the months before the ruling,” legal historian Paul L. Murphy recounted, “she had been persuaded by many friends, especially in the ACLU, to file a massive libel suit against Fred R. Marvin, who had for years tagged her a German spy and Bolshevik agent in his “Searchlight” column for the New York Commercial.” That action, not argued by Rabe, was brought in a New York state court and was pending while the U.S. Supreme Court prepared to render its ruling in her case. (Schwimmer later prevailed and was awarded $17,000 in damages.)

The Supreme Court decides — Holmes, J., dissenting

“Among all the decisions of the Supreme Court since the war adverse to civil liberty, none violate the old traditions more squarely than this.”
ACLU newsletter, June 1929

“Holmes’s dissent in Rosika Schwimmer’s case was his last of enduring significance.”
— Liva Baker

Less than two months after the matter was argued, the Court rendered its judgment in United States v. Schwimmer. The vote: 6-3 against Rosika Schwimmer, with Justices Holmes, Brandeis and Sanford in dissent. Of the 13 federal judges who had considered the matter, seven voted against Schwimmer, while six voted the other way.

Justice Pierce Butler — a conservative justice who would later dissent in the landmark free-press decision Near v. Minnesota (1931) — wrote the majority opinion. Sensitive to her stated views (what Judge Anderson in the 7th Circuit had labeled “mere views”), Justice Butler declared:

“Taken as a whole, [the record] shows that [Rosika Schwimmer’s] objection to military service rests on reasons other than mere inability because of her sex and age personally to bear arms. … The fact that she is an uncompromising pacifist, with no sense of nationalism, but only a cosmic sense of belonging to the human family, justifies belief that she may be opposed to the use of military force as contemplated by our Constitution and laws. And her testimony clearly suggests that she is disposed to exert her power to influence others to such opposition.”

Surprisingly, Justice Edward T. Sanford (author of the majority opinions denying free-speech claims in the 1925 case Gitlow v. New York and in Whitney) dissented. He agreed, “in substance, with the views expressed by the Circuit Court of Appeals.”

It fell to Holmes to author a short (634 words) but memorable dissent, joined in as usual by Brandeis. Though the opinion was devoid of any formal statutory analysis, it read with strong rhetorical force. In what would be his last great “free speech” opinion, Holmes wrote as an old soldier who well understood the realities of life and the occasional need for war:

“[Rosika Schwimmer] is an optimist and states in strong and, I do not doubt, sincere words her belief that war will disappear and that the impending destiny of mankind is to unite in peaceful leagues. I do not share that optimism nor do I think that a philosophic view of the world would regard war as absurd.”

As a Civil War veteran wounded three times during the conflict and one who had witnessed firsthand the atrocities of combat at Ball’s Bluff in 1861, at Antietam in 1862 and at Fredericksburg in 1863, Holmes felt the need to qualify his statement:

“But most people who have known it regard it with horror, as a last resort, and even if not yet ready for cosmopolitan efforts, would welcome any practicable combinations that would increase the power on the side of peace.”

Then, in the spirit of great free-speech dissents, Holmes added:

“The notion that the applicant’s optimistic anticipations would make her a worse citizen is sufficiently answered by her examination, which seems to me a better argument for her admission than any that I can offer. Some of her answers might excite popular prejudice, but if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate. I think that we should adhere to that principle with regard to admission into, as well as to life within this country.”

Writing with an eye toward the ages, the elderly jurist closed his dissent with a rhetorical flourish, with dramatic words that would be quoted for decades to come:

“And recurring to the opinion that bars this applicant’s way, I would suggest that the Quakers have done their share to make the country what it is, that many citizens agree with the applicant’s belief and that I had not supposed hitherto that we regretted our inability to expel them because they believed more than some of us do in the teachings of the Sermon on the Mount.”

As Holmes later told his friend and noted fiction writer Owen Wister, his opinion was “designed to occasion discomfort in certain quarters.” And it did. That dissent, Murphy has noted, “led those sympathetic with the pacifist cause to start pushing for congressional modification of the legislation under which Mrs. Schwimmer had been barred.”

On that front, the ACLU took the lead. Its June 1929 newsletter described the actions it would take in response to the Schwimmer ruling:

“The American Civil Liberties Union is planning two courses of action to overcome the Supreme Court decision. One, and the most promising, is to back a bill in Congress to prohibit the denial of citizenship to aliens because of their views on bearing arms. Such a bill, in a form not yet satisfactory, has already been introduced by Representative Anthony J. Griffin.”

The other line of attack was

“to get an alien member of a religious sect, preferably a woman, to apply for citizenship in a state, not a federal court, and in a state with a constitutional exemption from military service for religious objectors. Such a case would raise the constitutional issue squarely, and might well achieve a favorable result in the state, and if it reached the U.S. Supreme Court a possible modification of the Schwimmer decision.”

Editorialists in The New York Times and the New York World criticized Butler and praised Holmes. At The Christian Century (June 12, 1929) the editors tagged the majority opinion as an “appallingly stupid decision.” Predictably, the Holmes dissent won favor with Harvard Law School Professor (and future U.S. Supreme Court Justice) Felix Frankfurter. “It was like real, prewar champagne to read your Schwimmer opinion and not because Mrs. Schwimmer matters at all to me,” Frankfurter wrote to Holmes on May 29, 1929. “But the invigoration you give to spacious feeling and the confidence you intensify that man’s optimism isn’t a menace and may be a fillip to life mean, oh! ever so much to us.” For Frankfurter, the Old Master had once again produced “a glorious piece of writing.” The editors of The New Republic (6-12-29) thought enough of the dissent to publish it in its entirety and prefaced it with these words: “We feel that [the Holmes dissent] sets out, far more ably than any words of ours can do, the attitude which any person who calls himself a liberal ought to take toward this decision.”

Rosika Schwimmer was also moved by Holmes’s dissent. She wrote to him personally, even at “the risk of violating legal etiquette,” to express her “deep-felt gratitude” to Holmes. The magnificence of his dissent, as Liva Baker — author of The Justice from Beacon Hill: The Life and Times of Oliver Wendell Holmes — quotes her, “helped me to take the blow of refusal without loss of faith in the inherent idealism of your nation.”

Critical as Holmes had privately been of Schwimmer’s “silly” opinions, he was judicious in his reply, though kindly so: “You are too intelligent to need explanation of the saying you must never thank a judge. … If his decision was of a kind to deserve thanks,” he continued, “he would not be doing his duty.” And then with Holmesian detachment, he added: “A case is simply a problem to be solved, although the considerations are more complex than those of mathematics.” But he ended his letter on a personal note: “I must add of course that I am gratified by your more than kind expression.”

Though she never became an American citizen, Rosika Schwimmer was permitted to remain in the States. During that time, and a year or so before the great jurist died, Schwimmer paid a call on Justice Holmes at his I Street home in Washington, D.C. — the idealist and the realist had finally reconciled.

Aftermath
The Court invoked the Schwimmer precedent when it decided United States v. Macintosh in 1931. By a one-vote margin, with Charles Evans Hughes, Holmes, Brandeis and Harlan Fiske Stone in sharp dissent, the majority ruled that an alien seeking citizenship could be denied it if, even for bona fide religious reasons, he refused to agree to bear arms in wartime. And then in In re Summers (1945), the Court (relying on both Schwimmer and Macintosh) sustained the denial of an applicant’s admission to the state bar on the grounds that he refused to take an oath to support the Illinois Constitution because of bona fide conscientious objections. There, too, the vote was 5-4, with Justices Hugo Black, William O. Douglas, Frank Murphy, and Wiley Rutledge in dissent. (Holmes had stepped down in early 1932.)

By the time the Supreme Court rendered its 5-3 ruling in Girouard v. United States (1946), Oliver Wendell Holmes had been dead for 11 years. Girouard was another naturalization case involving a noncombatant. Writing the majority opinion, Justice Douglas quoted generously from Holmes’s Schwimmer dissent. And in that spirit, Douglas stressed: “The victory for freedom of thought recorded in our Bill of Rights recognizes that in the domain of conscience there is a moral power higher than the State.” By that logic, and the legal arguments accompanying it, the Schwimmer holding could not remain since it no longer stated “the correct rule of law.”

In their own lifetimes, then, Schwimmer and Rabe had finally tasted victory; they had seen United States v. Schwimmer overruled.

Law, life, literature … & climate
When this victory in principle finally came, Rosika Schwimmer was 69 years old. Although the Girouard ruling allowed her to reapply for citizenship, she declined to do so, remaining as a resident alien instead. Since her 1929 Supreme Court case ruling, she had led an active life as a feminist, pacifist and world peacemaker. Among other things, she had formed the Campaign for World Government and the World Centre for Women’s Archives. She also won the World Peace Prize, and in 1947 was nominated for a Nobel Peace Prize by 33 parliamentarians from Great Britain, France, Italy, Sweden and Hungary. Death claimed Schwimmer on Aug. 3, 1948. She died in New York City of bronchial pneumonia. She was cremated and her ashes were scattered over Lake Michigan.

As for Olive H. Rabe, after the Schwimmer case she continued her law practice with O. David Zimring — largely a labor-law practice — out of her office at 11 South LaSalle St., Chicago. Still, she yearned for a different life, one as a writer. That change in career would come soon. Meanwhile, the move in that direction was greatly influenced by a talented poet Rabe met in Chicago in 1929. Her name: Aileen Lucia Fisher, a woman 30 years Rabe’s junior, who was a University of Missouri graduate with a degree in journalism. Fisher moved to Chicago to become the director of the Women’s National Journalistic Register (a placement bureau, affiliated with Theta Sigma Phi, for female journalists).

The women met at a place where female writers socialized through mutual acquaintances and in short time they became friends. Rabe’s mind and manner much impressed Fisher. Olive was a “brilliant woman,” Aileen said. Or as decades later she described her to a reporter for The Boulder (Colo.) Daily Camera: “Olive had a brain.” More important, in Olive, Aileen had “found a kindred spirit.”

Their friendship blossomed, so much so that Fisher moved to an apartment near Rabe on the south side of Chicago. “I liked her very much,” is how Fisher put it in 1991. “We got to be acquainted very well.” So well that Aileen felt the need to introduce Olive to her parents — they all hit it off well.

The downside was that Olive Rabe was then in failing health; she had low blood pressure and suffered from assorted ailments. “She really wasn’t well at all,” Fisher recalled. The cold Midwest climate was particularly hard for Rabe to endure. “I’ve been told by my doctor,” she said to Fisher, “that I have to go to a warmer climate.”

It was around Christmas 1929, when, on the heels of the Wall Street crash of that year, the two women left chilly Chicago and journeyed to sunny Arizona. They went west for rest and recovery, and got both. The warm climate and Fisher’s comforting company did the trick. Aileen was happy, “we had a wonderful winter,” and Olive was healthy again. And then it came time to leave, time to return to the Midwest. Newly energized, Rabe left Arizona and headed back to Chicago to resume her law practice. On the way, the two visited the Grand Canyon for a 16-day camping and hiking adventure. Life was good.

Back in Chicago, in April 1932, Fisher apparently got caught up in a raid on the collection agency where she worked. It seems that the agency was involved in a scam to defraud creditors on whose behalf it had been hired. What, if any, role Fisher had in this is unknown, but it is likely that she was the beneficiary of Olive Rabe’s legal counsel (see Chicago Daily Tribune, April 27, 1932, story cited in Bibliography).

The following year, Rabe’s health deteriorated again. To make matters worse, she failed her life-insurance physical. Something had to be done. So Olive and Aileen made plans, saved money and thereafter “took the bull by the horns” and headed west to begin life anew.

The two moved to the north side of Boulder, Colo., in summer 1933. They wanted to live somewhere that had a good library, beautiful scenery and an “invigorating climate.” Once there, and within a day, they rented a house and bought a car. About this time Fisher published what became quite a popular children’s book of poems, The Coffee-Pot Face. Not to be left out of the writer’s life, Rabe turned to “popular legal writing.” With Fisher’s help, she published several such articles, first printed in The American Magazine and then condensed for republication in Reader’s Digest.

The articles had a consumer bent. One such piece, “Read — Before You Crash,” alerted laypeople what to look out for in their car-insurance policies. Though a far cry from the legal complaints she had authored in labor cases and the appellate briefs she had prepared for the 7th Circuit and the Supreme Court in Schwimmer, the reader-friendly articles now suited her new life. Meanwhile, Fisher continued to publish children’s verse and stories, which were well received.

Five years later, Olive and Aileen moved to a 200-acre ranch in Sunshine Canyon, west of Boulder in the hills. “We bought the ranch, built a cabin, got a dog — and now we don’t care if we ever leave Boulder county,” is how Aileen put it in a 1948 story in The Daily Camera. Clad in jeans and plaid shirts, “the two soulmates,” as the Rocky Mountain News portrayed them, “worked at typewriters all morning and spent the afternoons hiking and reading.” In this home with no electricity and a big warm kitchen stove, the women wrote from 8 a.m. to noon and then did chores or hiked. They received and returned many library books by mail. And in the evening, they read by the light of kerosene lamps.

Over the years Rabe and Fisher wrote a series of books together, including biographies of Louisa May Alcott and Emily Dickinson, in addition to several children’s books. The two women, free-spirited and often decked in colorful hats, lived together for three decades. “We had a great life,” Aileen recalled.

Forgotten
Olive Henrietta Rabe — political activist, feminist, labor lawyer, Supreme Court advocate, judicial nominee, rancher and author — died Dec. 11, 1968. She was 81 when she succumbed to heart failure after three months of hospitalization. There was no memorial service. Only a short obituary in a local paper mentioned her; no biographer discovered her; no books on female lawyers noticed her; and no book or article on the Schwimmer case referred to her. Despite all the women in the law and elsewhere who had been remembered, Olive Rabe remained forgotten. (For Fisher the story ended differently. As noted in a New York Times obituary, Aileen Fisher, author of more than 100 children’s books, died in 2002 at age 96. Her papers are collected in libraries at Southern Mississippi University and Stanford University.)

One final point: It was nearly 40 years before another woman represented a rights claimant in a free-speech case in the Supreme Court. The woman was Eleanor Holmes Norton, a woman of color; the case was Carroll v. President & Commissioners of Princess Anne (1968). As with Olive Rabe, few if any know or remember that Holmes Norton, now a member of Congress, was the first woman to represent a rights claimant in the Supreme Court in a First Amendment free-expression case. But that is another story for another day.

The authors gratefully acknowledge the valuable assistance of Albert Alschuler, Kristi Conkle, Nancy Stewart, Vanessa Yarnall, and that of the librarians at the Northwestern University Library (University Archives) and the Boulder Public Library. As their research continues, the authors may expand and revise their work from time to time.