BRUCE BROMLEY

(1893-1980)
Court of Appeals: 1949
by John Hupper
Bruce Bromley

Bruce Bromley, one of the most distinguished members of the New York Bar for almost half a century, served on the Court of Appeals for only eleven months, from February 1, 1949 to December 31, 1949 one of the shortest terms of any Judge of the Court. He was appointed amid much nonpartisan acclaim in January 1949 to succeed a recently retired Judge. He served on the Court with distinction but, burdened by an unpopular decision, was defeated in the statewide elections of November 1949. The Court thereby lost a jurist of wide experience in private and public law, of longtime deep involvement in civic affairs, and of extraordinarily sound and practical judgment. On the other hand, the American bar thereby regained one of its greatest luminaries, who continued in active practice and leadership in public affairs for almost 30 years more before his death at age 87 in 1980.

BACKGROUND AND EARLY YEARS

Bruce Bromley (christened Bruce Ditmas Bromley) was born in Pontiac, Michigan, on March 20, 1893, the son of Peter Brewster (1861-1926) and Sarah Suydam Ditmas Bromley (1857-1936). The Bromley family came from England and settled in Vermont about 1700; their descendants went West in 1825 and settled in Oakland County, Michigan. Bromley's father was born on a farm near Pontiac, the county seat, read law in a Pontiac office, and practiced there as a trial lawyer for many years. His mother was born and raised in Brooklyn, the daughter of Abraham I. and Caroline Vanderbilt Lott Ditmas. The Ditmas family came from Holland and settled in Flatbush in 1647; some of their descendants are still residents of Brooklyn.

Bromley went through public schools in Pontiac, and in 1910 entered the University of Michigan, graduating in 1914. He entered Harvard Law School in 1914 and had completed the work for his LL.B. when the United States entered the war; he received his degree after the war, as of 1917.

Bromley enlisted in the United States Naval Reserve Force at Newport, R.I., as a quartermaster, 1st class, in April 1917. After graduating from Reserve Officers' School at Annapolis, he received a temporary commission as ensign in the United States Navy and later was promoted to lieutenant (j.g.). He served overseas in various capacities on several naval vessels until his resignation in mid 1919.

In July 1919, he joined the New York City firm of Winthrop & Stimson and was trial assistant to Henry L. Stimson from 1919 to 1921, when he became a member of the Brooklyn firm of Baldwin, Runyon & Bromley, headed by the well known trial lawyer Stephen C. Baldwin. In May 1922 he married Esther Baldwin, daughter of Mr. Baldwin and sister of the writer Faith Baldwin.

GROWTH OF HIS DISTINGUISHED CAREER

In February 1923, when the young Bromley was already developing a reputation as a trial lawyer, he began his lifelong (other than 1949) association with the firm then known as Cravath, Henderson, Leffingwell & de Gersdorff to assist in the trial of the case generally known as Federal Trade Commission v. Famous Players Lasky Corporation. He was elected a partner of the Cravath firm in August 1926.

The FTC litigation, in which the Cravath firm represented Paramount Pictures Corporation, Inc. and its affiliates, involved broad challenges by the Government to the then practices of the motion picture companies and their distributors of "block booking" theaters all around the country by requiring the theaters to display a complete assortment of all the producers' or distributors' movies. Similar claims were asserted by private litigants. Bromley took on the major responsibility for handling all facets of the litigation relatively soon after his arrival at the Cravath firm. His responsibilities frequently took him around the country and he rapidly developed a national reputation as a trial and appellate lawyer skilled in antitrust matters.

In due course, his practices broadened as he became involved in the representation of magazines and newspapers in cases involving libel, rights of privacy, broadcast rights, copyright, and unfair competition issues. His clients included such diverse publications as Curtis Publishing Co., Daily Race Form Publishing Company, Tribune Company, Nationwide News Services, Inc., Look, Incorporated, Comic Magazines, Smash Magazines, Quality Comic Group and very prominently, Time, Inc. In a significant change of pace, he frequently defended the Long Island Railroad in personal injury suits brought by employees and passengers. He also had a substantial commercial practice. And, although the Cravath firm did not seek clients with matrimonial problems, it was Bromley who usually handled such matters when executives of the firm's business clients would seek advice regarding their personal troubles.

By the time Bromley was appointed to the Court of Appeals in 1949 he had argued at least five cases before the Supreme Court of the United States. The case attracting the most public attention was the 1946 Esquire case, which arose out of the Postmaster General's efforts to revoke Esquire Magazine's second class mailing privileges because of its popular "Vargas girl" color illustrations of long legged and seductive femininity and its sometimes Rabelaisian humor. The Postmaster General, overruling his own three-member board after hearings in which Bromley extensively participated, had found that Esquire did not fulfill his requirements for second class mailing privileges that a periodical be "originated and published for the dissemination of information of a public character, or devoted to the literature, sciences, arts or some special industry." The Supreme Court held unanimously for Esquire, ruling that the Attorney General was without power to prescribe standards for non obscene literature or art which a mailable periodical disseminates, or to determine whether its contents met some standards of the public good or welfare.

The exemplary quality of Bromley's advocacy before the Supreme Court was emphasized by Justice Douglas, who later wrote:

"Bruce Bromley and John W. Davis, representing the Establishment, were by all odds its best advocates at the appellate level. . . ."

"What made Bromley so effective at the appellate level of our Court was, first, an easy relaxed manner of presentation; second, the knack of reducing a complicated case to one or two starkly simple issues; third, illuminating those issues with homely illustrations, and fourth, never using the full time allotted to him."

Along with his active practice Bromley also was much in demand as a lecturer and teacher. During the period 1933 1938 and again in 1946-47 he was Sterling Lecturer at Yale Law School, with the academic rank of professor, giving courses on trial practice. He also lectured on legal subjects at the Association of the Bar of the City of New York, The Practicing Law Institute, and the New York State Bar Association.

He was also long active in the affairs of the City Bar, serving as one of its Vice Presidents for two terms and on various committees, including Admissions, Nominating, Court Rules, Criminal Courts, Grievances, (serving as Chairman for four years), Constitutional Convention, and Judiciary.

HIS YEAR AT THE COURT

It is fair to say that Bromley had at age 55 already reached the pinnacle of his profession when in January 1949, shortly after Judge Thomas Thacher had resigned from the Court of Appeals because of illness, Governor Thomas E. Dewey appointed him to the Court on an interim basis. After considering almost 50 suggested candidates, the Governor had consulted with several leading bar associations, all of whom recommended Bromley for the Court.

Bromley began his service on the Court on February 1, 1949. In his 11 month term on the Court he authored 17 succinct, well reasoned and erudite majority opinions and one dissent. Most of those cases dealt with questions of New York law which to some might seem mundane when compared with those now regularly dealt with by the Court, but they were obviously of significance at that earlier time.

However, there were two notable exceptions. The first was his dissent in People v. Kunz, in which he argued that a provision of the New York City Administrative Code authorizing the Police Commissioner to deny a clergyman permission to discuss religion in a public place on the ground that he had previously "ridiculed and denounced religion" was invalid on its face under both federal and state constitutional provisions guaranteeing freedom of speech and religion.

The second, and by far the most significant, exception was Bromley's majority opinion for a 4-3 divided Court in Dorsey v. Stuyvesant Town Corp. Stuyvesant Town, a major private housing project, had been organized by the Metropolitan Life Insurance Company in 1943 under the Redevelopment Companies Law, which was intended to attract private investment funds into the housing field. In order to encourage private corporations to invest funds for the clearance and rehabilitation of substandard areas, provision was made for the corporations to receive such public assistance as partial tax exemption and aid in acquiring land for redevelopment purposes. Redevelopment Companies had to be organized to serve a public purpose, and were limited in the amount of return on their investment, method of financing and of sale or disposition of property.

Three African American war veterans who had applied for apartments in the new Stuyvesant Town project were rejected on the ground of their race. Their suit seeking to bar such discrimination against them was dismissed by the lower courts, and the Court of Appeals affirmed.

The plaintiffs contended that the discrimination against them violated the Fourteenth Amendment because it was supported and made possible by state action, inasmuch as construction of the project would not have been possible without exercise of the power of eminent domain, the power to dispose of public property and significant tax exemption.

Delivering the majority opinion, Judge Bromley responded that

"...the great prohibitions of the Fourteenth Amendment are addressed to that action alone which 'may fairly be said to be that of the States'...."

"The State of New York has consciously and deliberately refrained from imposing any requirement of nondiscrimination upon respondents as a condition to the granting of aid in the rehabilitation of substandard areas. Furthermore, it has deliberately refrained from declaring by legislation that the opportunity to purchase and lease real property without discrimination is a civil right. To say that the aid accorded respondents is nevertheless subject to these requirements, on the ground that helpful cooperation between the State and respondents transforms the activities of the latter into State action, comes perilously close to asserting that any State assistance to an organization which discriminates necessarily violates the Fourteenth Amendment. Tax exemption and powers of eminent domain are freely given to many organizations which necessarily limit their benefits to a restricted group. It has not yet been held that the recipients are subject to the restraints of the Fourteenth Amendment."

Judge Fuld, authoring the minority opinion, joined in by Chief Judge Loughran and Judge Desmond, took a very different view:

"while the Stuyvesant Town housing project was in blueprint and under construction, the public understood, and rightly, that it was an undertaking on which the State and the City of New York had bestowed the blessings and benefits of governmental power. Now that the development is a reality, the public is told in effect that, because the Metropolitan Life Insurance Company and Stuyvesant Town Corporation are private companies, they are not subject to the equal protection clause, and may if they choose, discriminate against Negroes in selecting tenants. The conclusion strikes me as totally at odds with common understanding and not less so with the facts and circumstances disclosed by the record."

The Stuyvesant Town decision long predated court decisions and civil rights law enactments prohibiting racial discrimination in private housing. Nevertheless, Bromley's majority opinion eliminated any hope that he might receive bipartisan endorsement in the forthcoming November election. Indeed, the Jamaica Branch of the NAACP reportedly soon went so far as to demand that the Republican State Committee not nominate him for election, arguing that Bromley placed "property rights above human rights" and had conferred "the stamp of legality on the Hitlerian doctrine of racial superiority."

Notwithstanding such opposition, Bromley was enthusiastically nominated by the Republican Committee. He was also endorsed by a nonpartisan Lawyers Committee of former City Bar Presidents, led by John W. Davis, Robert E. Patterson and Henry L. Stimson. All 13 living past Presidents of the State Bar Association joined a committee supporting him. He was also endorsed by the New York Times, the New York Herald Tribune and other leading newspapers. The Democratic and Liberal Parties nominated Charles Froessel, a well regarded New York City Supreme Court Judge. In the ensuing Democratic/Liberal sweep of the elections Bromley was defeated by over 400,000 votes statewide, running almost a million votes behind Judge Froessel in New York City, the site of Stuyvesant Town. Thus, Bromley's term on the Court ended on December 31, 1949.

That Bromley's colleagues on the Court regretted his departure is evidenced by a portion of the warm farewell remarks of Chief Judge Loughran, a dissenter in the Stuyvesant Town case:

"[Y]ou came to this court with a professional equipment that was truly exceptional. Every one of my associates, I know, will agree with me when I say to you, as I do now, that upon your coming here you addressed yourself to the affairs of this Court with such energy, devotion and forthrightness that you made yourself a seasoned member in our work almost overnight. But, more than that, you approached all and I speak now for the staff as well as for the Court you approached all of us, upon every occasion, with a warm friendliness of manner and a considerateness that none of us shall live long enough to forget. . . ."

"Many useful years of all important professional work lie before you. We know that in the discharge of your professional activities hereafter you will be, as you have been day by day, in season and out, in this consultation room and on the Bench in the courtroom below, you will be what you have always been everywhere brave and loyal and successful."

Judge Loughran's predictions were fully borne out.

His Continued Contributions to the Profession and Public Affairs

Bromley immediately returned to private practice at the Cravath firm with undiminished vigor. For many more years he continued as the counsel of choice for important clients, such as Bethlehem Steel, Ford, General Motors, IBM, U.S. Gypsum, and many others.

One of his most celebrated cases was the steel seizure case during the Korean War in which he on behalf of Bethlehem Steel and others successfully resisted President Truman's efforts to take over the strike bound steel industry.

He also argued before the Supreme Court on at least five more occasions. His most widely publicized case in that Court involved his representation of United States House of Representatives in the late 1960s when reelected Congressman Adam Clayton Powell sued the House for refusing to seat him because of various alleged improprieties. Bromley took the position that the Judiciary had no power under the Federal Constitution to interfere with the decisions of the House, a coordinate branch of the Government, as to the qualifications of its members. His arguments prevailed in the lower courts, but were eventually rejected by the Supreme Court.

He also resumed his prodigious activities in public affairs. Just as a sampling, he served as a member and later Chairman of the Election Reform Commission (1952-4); as Special Counsel of the New York Board of Regents to enforce the Feinberg Law banning members of subversive organizations from employment in the public schools (1952-53); as Chairman of the Moreland Act Commission to investigate raceway scandals (1953-54); as longtime member of the Mayor's Board of Ethics from 1961; and as longtime member of the National Committee to Study the Antitrust Laws. He was involved over the years in literally dozens of other important civic and charitable activities. He also continued to be a popular speaker at various gatherings of bench and bar, delivering incisive and often humorous commentary on contemporary antitrust issues.

Utterly belying the accusations hurled at him from certain quarters after the Stuyvesant Town decision, Bromley was a lifelong strong opponent of bigotry. For example, shortly following the 1963 forced desegregation of the University of Alabama at Tuscaloosa, Bromley was one of the leaders of the American bar invited by President Kennedy to attend the historic White House conference that led to the formation of the Lawyers' Committee for Civil Rights Under Law. Bromley was named one of the 15 initial members of the Lawyers' Committee's Executive Committee, a nationally prominent, nonpartisan group of lawyers. He was also named Chairman of its Committee on Representation and Advice, which performed the vital and sensitive function of encouraging local individual lawyers to help in civil rights trials and appeals in those states where assistance was needed and requested. In addition, he was one of the early members of the Committee's Corporate Fund Raising Committee.

Bromley continued his energetic active practice long after most lawyers would have wearily retired. As a prime example, he continued until shortly before his 1980 death to preside over the Cravath firm's successful defense of IBM in the long-drawn-out Department of Justice antitrust case brought in early 1969 seeking to break up IBM as an allegedly unlawful monopolist, and in the multitude of private treble damage litigations which that case spawned. Legend has it that until a few months before his death he would regularly scan daily trial transcripts and often rouse a young lawyer to suggest further pursuit of a particular line of questioning or to wonder out loud what on earth had induced the lawyer to ask that one extra question.

REMEMBRANCES

This Court's Memorial for Judge Bromley aptly noted that his career "was much more than a collection of statistics; his was a life marked by service to the legal profession and its betterment. . . . The legal profession is finer and the cause of justice stronger because of [his] persistent dedication."

For the multitude of those fortunate to have known him as a person, Bruce Bromley the man was always a joy to work with or just simply to be with. He was direct, always right on the mark, and sometimes devastatingly blunt. His sense of timing was exquisite. Utterly irreverent at times, he delighted in puncturing the pompous, the pretentious. He had an absolutely inexhaustible store of anecdotes, never told the same way twice. His wit ranged from the simply funny to the outrageous to the bizarre. His courtly manner would grace the most conservative company. His vernacular (though invoked only sparingly) would make a longshoreman wince. With Bromley one never knew what was coming next. He was always a fresh breeze. When he was 80, he seemed to be one of his firm's younger partners. His partners loved him. So did his clients. So did judges and juries. And so even did many of his adversaries. Remembrances such as these impelled a large group of his partners, clients and friends to establish in 1981 the Bruce Bromley Professorship of Law at the Harvard Law School, with the hope of ensuring that generations of future lawyers to come would, as had their forbears, continue to associate the name of Bruce Bromley with the highest standards of their chosen profession.

PROGENY

Bruce Bromley and his wife, who died in 1984, had four children. Three are now deceased: Bruce Ditmas (killed in Korea in 1950), Stephen Baldwin, and Peter Brewster. Their daughter Sarah Bromley presently resided in Eliot, Maine. The Bromleys are also survived by at least 12 grandchildren and five great-grandchildren.

 

SOURCES CONSULTED

Connell, The Lawyers' Committee for Civil Rights Under LawCThe Making of a Public Interest Law Group, privately printed 2003.

Cravath, Swaine & Moore Library Compilation of 1949 newspaper articles relating to Judge Bromley's nomination to, service on, and retirement from the Court.

Swaine, The Cravath Firm, privately printed, 1948 & Supp. 1964.

 

PUBLISHED WRITINGS INCLUDE

"Business' View of the DuPont-General Motors Decision," 46 Geo. L. J. 646 (1957-1958).

"A Private Practitioner's Views," 11 A.B.A. Antitrust Section 12 (1957).

"Current Developments in the Law of Torts, 1942," 36 Law Libr. J. 16 (1943).

 

ENDNOTES

  1. In one of his many humorous but quite probably apocryphal recollections, Bromley told the Brooklyn Eagle shortly after his appointment that he had successfully tried his first divorce case at age 16 before a local judge friendly with his lawyer father, but that afterwards "the judge called me into his chambers and advised me not to dwell so much on the adultery aspects in future cases." Neer, Bromley Traces Judicial Ancestry to 16th Century, Brooklyn Eagle, Jan. 30, 1949, at 23, col 2.
  2. Hannegan v. Esquire, Inc., 327 U.S. 146 [1946]; Bethlehem Steel Co. v. New York State Labor Relations Bd., 330 U.S. 767 [1947]; United States v. United States Gypsum Co., 333 U.S. 364 [1948]; United States v. South Buffalo Ry. Co., 333 U.S. 771 [1948]; Schine Chain Theaters, Inc. v. United States, 334 U.S. 110 [1948].
  3. Douglas, The Court Years (1937 1975), at 183 4 [Random House 1980].
  4. See e.g. 36 Law Library Journal 16, Current Developments in the Law of Torts, 1942 [1943].
  5. The opinions all appear in Volumes 299 and 300 of the New York Court of Appeals Reports.
  6. 300 NY 273, 291 [(1949)].
  7. 299 NY 512 [1949], cert. denied 339 US 981 [1950].
  8. 'Trail' Judge After Met Bias Decision, N.Y. Amsterdam News, Oct. 22, 1949.
  9. 300 NY vii [1949].
  10. Bromley was so admired by IBM that he was elected to its Board of Directors in 1958 and after reaching mandatory retirement age remained an Honorary Director until his death.
  11. United States v. United States Gypsum Co., 340 US 76 [1950]; Theater Enterprises, Inc. v. Paramount Film Dist. Corp., 346 US 537 [1954]; United States Gypsum Co. v. National Gypsum Co., 352 US 457 [1957]; Hughes Tool Co. v. Trans World Airlines, Inc., 380 US 249 [1965]; Powell v. McCormack, 395 US 486 [1969].
  12. E.g. Mergers and Acquisitions: A Private Practitioner's View, 11 A.B.A. Antitrust Section 12 [1957]; Business' View of the Du Pont General Motors Decision, 46 Geo. L.J. 646 (1958]. In Judicial Control of Antitrust Cases, 23 F.R.D. 319 [1958], a speech given at a seminar on protracted cases attended by a distinguished gathering of lawyers and judges, including Chief Justice Warren, Bromley praised the vigorous big case management practiced by present day judges which, he bemoaned tongue in cheek, had now stymied his earlier day efforts as a "protractor."
  13. 48 NY 2d vii [1980].
  14. Professor Paul M. Bator was the first holder of that professorship, succeeded by the present holder, Professor Arthur Miller.