Thurman Arnold, Laramie Lawyer and New Deal Trustbuster
In 1939, The Saturday Evening Post published a lengthy profile of Thurman W. Arnold, a lawyer born and raised in Laramie, Wyo., dubbing him a “Trust Buster” and calling him “probably the most singular figure in the American Government today.”
President Franklin D. Roosevelt’s appointment of Arnold to head the Justice Department’s Antitrust Division in 1938 had pushed him into the national spotlight. In 1940, Arnold found himself arguing one of the most important antitrust cases of all times in front of the United States Supreme Court. In this case, the Justice Department had convicted several major oil companies and their officers for illegal price-fixing. As Arnold stood before the assembled justices, he must have been comforted by the sight on the Supreme Court bench of his old friend and colleague, Justice William O. Douglas, with whom he had served on the Yale law faculty.
Arnold, representing the government, won a resounding victory. The landmark opinion written by Justice Douglas became an antitrust classic as it established that price fixing by competitors was illegal “per se—” that is, on its face—a very strict standard indeed.
By this time, the trustbuster from Laramie had also been Laramie’s mayor, the sole Democratic legislator in the Wyoming State House, dean of the West Virginia state law school, a faculty member at Yale law school, and the author of a best-selling book on law, culture and economics. After leaving his post at the Justice Department he would become a federal appeals court judge and, finally, a founding partner of Arnold and Porter, still a world-renowned law firm in Washington, D.C.
How did Arnold, who started his life in a small frontier town during the earliest days of Wyoming statehood, rise to such national prominence? His life and times form a fascinating story of achievement by someone with many Wyoming ties.
Early years in Laramie
Thurman Arnold was born in 1891 in the family residence, which still stands at 812 Grand Avenue in Laramie. His father, C.P. Arnold, was a local attorney, leader of the fledgling state bar association and a rancher. During Thurman’s boyhood, houses of prostitution and old West saloons still flourished on Front Street. He attended high school at a college preparatory program at the University of Wyoming, where he served in the Reserve Officers’ Training Corps.
Thurman entered Princeton University in 1907 and did well academically, but did not enjoy the social milieu he found there.
In his memoirs, he recalled “My Western clothes, mannerisms, and speech did not fit. I was immediately classified as a queer character. I was not admitted to any club; indeed, I was never admitted to anything at Princeton. . . . my years at Princeton were chiefly remarkable for their loneliness.”
He was happier and more productive as a student at Harvard Law School. In Boston, he learned to love opera, and spent time helping indigent clients at the Harvard Legal Aid Society.
After a brief stint practicing law in Chicago, Arnold went on a deployment to France in World War I. Before he shipped overseas, he hurriedly married Frances “Deedee” Longan, from Missouri, an event that surprised and shocked her parents. Despite the precipitous nature of the wedding, the marriage lasted more than fifty years.
After he returned from the war, Thurman and Frances moved to Laramie and built a home on the corner of 15th and Garfield, where it remains today. The Arnolds also homesteaded on the family ranch for nearly two years, while Thurman was practicing law in town with his father.
In 1920, Arnold was elected for a term as the only Democratic member of the Wyoming House of Representatives. As the Republican legislature assembled to elect a speaker, Arnold remembered years later, he arose and announced “Mr. Speaker, the Democratic party caucused last night, and when the name of Thurman Arnold was mentioned, it threw its hat up in the air and cheered for fifteen minutes. I therefore wish to put his name in nomination for speaker of this House.”
He then sat down but immediately rose and seconded the nomination, saying “I have known Thurman Arnold for most of my life, and I would trust him as far as I would myself.” Laughter and some confusion followed this remark, but then Arnold stood for the third time and said, no doubt to the relief of the assemblage, “Mr. Speaker, some irresponsible Democrat has put my name in nomination and I wish to withdraw it.”
After his term in the legislature expired, Arnold was elected mayor of Laramie in 1922. He also played a crucial role in the founding of the University of Wyoming College of Law, which he championed as an affordable law school for the state, while being modeled on Harvard’s law school as much as possible. Arnold taught basic law courses there when the law school was founded; later his brother Carl became the dean for several years. Much later, Thurman’s son George also served on the faculty, becoming the first director of the legal clinic in 1970.
Law School dean and professor, best-selling author
In 1927, Thurman and Frances Arnold, along with their young children Thurman, Jr., and George, departed Laramie for the hills of West Virginia, where Thurman had been hired as dean of the University of West Virginia College of Law. This position, in which he worked with vigor and distinction, proved but a stepping stone to his appointment to the Yale Law School faculty some two years later. At that time, Yale was a hotbed of “legal realism,” an academic genre that pushed the then-revolutionary idea that the law should be studied as it is practiced, rather than relying on rigid abstract rules. Legal realists, that is, believed judges “made” law and were inevitably influenced by policy, ethics, and the social context of the cases. The Yale scholars and others rejected the idea that law is “found” by judges based on pure logic and abstract, objective concepts. During this period, Arnold became a colleague and friend of William O. Douglas, who later served 36 years on the U.S. Supreme Court.
While at Yale, Arnold wrote two of his best-known books, The Symbols of Government and The Folklore of Capitalism, the latter becoming a best seller. In Folklore, Arnold depicted in a satirical, witty style how capitalism had become imbued with the symbolism of the rugged individual competing among equals for the good of all. Due to the mythical portrayal of corporations as individuals, he argued, society came to believe that government control of corporations was, unfortunately, anathema. He also argued that the antitrust laws, which had been on the books since 1890, were just show pieces meant to assuage the public’s concerns about the abuses of big business but were not taken very seriously.
Supreme Trust Buster
Given Arnold’s published critique of capitalist folklore and of antitrust in particular, Roosevelt’s nomination of Arnold to head the Antitrust Division of the U.S. Department of Justice seemed somewhat ironic at the time. The New Deal in its early years had stressed government planning and established industry groups to set prices, ideas that seem counter to the thrust of the antitrust laws to promote competition and thwart monopolization and price fixing.
However, in the aftermath of the Supreme Court’s adverse ruling in a case involving the National Recovery Act, a central piece of New Deal legislation, Roosevelt was willing to change course. In lieu of economic planning, the President sought to solve the financial crisis of the Great Depression by freeing the forces of competition. For that job, he chose Thurman Arnold.
Writing as a free-wheeling academic, Arnold had mocked Idaho Sen. William E. Borah by name for engaging in futile trust-busting crusades just for the positive publicity. Imagine Arnold’s trepidation upon later facing Senator Borah, who was openly carrying a copy of The Folklore of Capitalism as he presided at Arnold’s confirmation hearing. The Senator questioned the propriety of nominating someone who had written of the purely symbolic nature of the antitrust laws to head the division in charge of enforcing these same laws.
Arnold’s nomination was confirmed, however, in March of 1938 after he assured the senators that he would enforce the antitrust laws—which he did with gusto in the ensuing years. The friendship of Wyoming Sen. Joseph O’Mahoney, chair of the subcommittee handling the nomination, may have helped Arnold as well.
When Arnold took the reins at the Justice Department’s Antitrust Division, he galloped ahead with enforcement actions involving a wide range of industries. He used criminal indictments against companies involved in anticompetitive activities to wrangle consent decrees containing specific remedial practices. He increased the legal staff of the Division from 18 to nearly 500 attorneys and more than quadrupled the budget as well. He brought more antitrust cases during his five-year tenure at the Department than had been brought in the previous 50 years.
The Arnold Antitrust Division brought cases against the movie, newspaper, dairy and tobacco industries, among others. He sued the American Medical Association for blocking doctors from forming group health organizations. He mounted an ambitious assault on the building industry, which at the time was plagued by restraints of trade that drove up prices unnecessarily. He filed suits all over the country and against all participants in the construction industry, including material suppliers, contractors and labor leaders.
Arnold himself noted with glee the reaction to this increase in antitrust prosecutions: “As indictments of respectable people began to pour out from the Justice Department in unprecedented numbers, cries of outrage could be heard from coast to coast. I was pictured as a wild man whose sanity was in considerable doubt. One major newspaper referred to me as ‘an idiot in a powder mill.’”
As practiced by Arnold and his team, the antitrust laws were used to counter the adverse effects on consumers of monopolies and cartels. When one company has a monopoly over the production of some important commodity, such as aluminum, the price is bound to go higher than it would in a competitive market. Thus, in 1938, Arnold personally represented the government in a trial charging the mighty Alcoa corporation with monopolization.
The New Yorker magazine called it the “longest trial in the history of the world,” lasting a little more than a year. After some circuitous legal meanderings, the government ultimately prevailed—but not until 1945. Like the oil industry case argued by Arnold in 1940, the Alcoa case has also become a landmark in antitrust jurisprudence.
Founding a leading Washington law firm
With the coming of World War II, the Roosevelt administration turned its attention to the war effort and was less enthusiastic about prosecuting big companies for antitrust violations. Consequently, in 1943, Arnold was appointed judge on the prestigious U.S. Circuit Court of Appeals for the District of Columbia. He lasted a little more than two years in that position before resigning. Arnold said of his decision, “a person who is temperamentally an advocate, as I am, is not apt to make a good judge.” Columnist Drew Pearson put it more bluntly, saying that Arnold was “bored stiff with the court.”
After leaving this post in 1945, Arnold partnered with Abe Fortas and Paul Porter to found a law firm that ultimately became a powerhouse of the D.C. legal community. Fortas had been a brilliant student at Yale Law School when Arnold was on the faculty, was a prominent New Deal lawyer in the Roosevelt administration and later became a protégé of Lyndon Johnson. Fortas went on to become a U.S. Supreme Court justice, and the firm became known simply as Arnold & Porter.
During the McCarthy era of American post-war politics, Arnold and the rest of his nascent firm became involved with the pro bono defense of federal employees falsely accused of disloyalty or having Communist sympathies. Although the firm lost most of its cases, Arnold was adamant in arguing that the use by government loyalty boards of anonymous sources and unnamed reviewers constituted a total lack of due process. The boards screened federal job applicants and employees for possible Communist ties, and ruined the careers of a great many of them.
Over the years, the Arnold and Porter law firm prospered. It is now one of the largest law firms in the world with over 1,000 attorneys. Arnold maintained his office at the D.C. headquarters of the firm until he died in his sleep at home on November 7, 1969. More than 500 people attended his memorial service at the National Cathedral, where he was eulogized by many luminaries of the Washington legal community.
His ashes were laid to rest in the family plot in Greenhill Cemetery in Laramie.
Resources
Primary Sources
- Alsop, Joseph and Robert Kintner. “Trust Buster: The Folklore of Thurman Arnold.” The Saturday Evening Post, Aug. 12, 1939.
- Arnold, Thurman W. Fair Fights and Foul: A Dissenting Lawyer’s Life. New York: Harcourt, Brace & World, Inc., 1965, 16, 32-33, 114.
- ________________. The Folklore of Capitalism, New Haven: Yale University Press, 1937, 207-229.
- Gressley, Gene M., ed. Voltaire and the Cowboy: The Letters of Thurman Arnold. Boulder, Colo.: Associated University Press, 1977, 39-40.
- United States v. Aluminum Co. of Am. 148 F.2d 416 (2d Cir. 1945).
- United States v. Socony-Vacuum Oil Co. 310 U.S. 150 (1940).
Secondary Sources
- Golden, Michael. “History of the University of Wyoming College of Law: The First Seventy-Five Years.” 31 Land & Water L. Review 1 (1996).
- Kolasky, William. “Thurman Arnold: An American Original.” 27 Antitrust 89 (Summer 2013).
- Waller, Spencer Weber. Thurman Arnold: A Biography. New York: New York University Press, 2005.
Illustrations
- The photos of the Arnold house, the cover of Bottlenecks of Business and Arnold taking the oath of office as assistant U.S. attorney general are from the American Heritage Center at the University of Wyoming. Used with permission and thanks.
- The image of the cover of The Folklore of Capitalism is from AbeBooks.com. Used with thanks.
- The photos of Thurman and Dee Dee Arnold, of Arnold before the Senate committee and Arnold and O’Mahoney are all from the Library of Congress. Used with thanks.