Mr. Justice Brandeis and the Creation of the Federal Register

Article excerpt

Reasonable transparency of government and its accountability under law are enduring goals of American public administration. The Federal Register, created in 1935, is a historic institutional tool designed for these purposes, and it represented a seismic shift in the way government functions. Sixty-six years after its creation, as the "official public record of actions or revisions to the U.S. Code of Federal Regulations," it remains not only the daily compendium of almost all activities of the executive branch agencies, but also a principal mechanism for permitting citizens to know about and participate in agency decision making in a timely, uniform manner.

"I suppose no one person," wrote Felix Frankfurter in 1935, "is ultimately more responsible for the intellectual impetus that gave rise to the Federal Register Act than Mr. Justice Brandeis" (Frankfurter to Carr 1935b). In reality, Brandeis did far more than provide "intellectual impetus"--he played a pivotal but little known role in engineering the conditions necessary for the creation of the Federal Register.

The story of how the Federal Register came to be created is a fascinating study of the interplay of administrative, legislative, and judicial forces responding to the unprecedented expansion of federal regulatory activity under the Roosevelt administration. It was the product of efforts by key agency attorneys and administrators in the executive branch; public debate framed by the press and the American Bar Association; the willingness of one congressman to seize the moment; and, most importantly, the behind-the-scenes extrajudicial maneuvering of Justice Louis D. Brandeis.

This story provides new insight into the extraordinary influence that Brandeis exerted, in an extrajudicial capacity, to institutionalize his well-known belief in the importance of openness (publicity) and informed citizen participation in government. These, he believed, were key to safeguarding democracy (Strum 1995, 1-21ff). This study also provides a window into understanding how values, politics, law, administration, and theater mixed to produce a critical public policy decision that permanently changed the way the federal government handles executive branch records.

The Supreme Court As Theater

It is Monday, December 10, 1934. The Supreme Court is in session. Chief Justice Charles Evans Hughes is presiding and will write the majority opinion (8-1). Two cases are being argued, Amazon Petroleum Corporation v. Ryan and Panama Refining Company v. Ryan (293 US 388 [1935]). They are the first cases before the Court to challenge the constitutionality of the New Deal's centerpiece, the National Industrial Recovery Act (NIRA). Specifically, these two East Texas oil companies have challenged the right of the president, through regulations issued by his Secretary of the Interior (Harold Ickes), to set quotas limiting the production and transportation of "petroleum or petroleum products in interstate and foreign commerce" (Ruddy and Simmons 1944, 248-63). These are the "hot oil" cases, the term used for oil produced or transported in excess of the quotas; those who violate the quotas can be fined up to $1,000 or imprisoned for up to six months, or both.

Harold M. Stephens, assistant attorney general in the antitrust division, a man who prides himself on "always" trying to be "meticulously accurate in either oral or written statements made to a court" (Stephens to Griswold, January 7, 1935), is charged with presenting the government's case.

The place is the Old Senate Chamber, where the Supreme Court has sat, with two exceptions, since December 3, 1860. The room--a large, semicircular hall, 75 feet in diameter, with a 45-foot-high domed ceiling and circular apertures through which light filters--was modeled after a Greek theater. A screen of Grecian Ionic columns of native Potomac marble stretches behind the justices' chairs, with the chief justice's chair at the center, while an eagle, its wings spread in permanent flight, is mounted over an arched, curtained doorway directly behind his chair. …