John Lord O'Brian (October 14, 1874 – April 11, 1973) was an American lawyer who held public offices in the administrations of five U.S. presidents between 1909 and 1945.
[ O'Brian has been recognized by scholars for his commitment to civil liberties. At the time of O'Brian's death at the age of 98, Chief Justice ]Warren Burger
Warren Earl Burger (September 17, 1907 – June 25, 1995) was an American attorney and jurist who served as the 15th chief justice of the United States from 1969 to 1986. Born in Saint Paul, Minnesota, Burger graduated from the St. Paul Colleg ...
described him as the "dean" of the bar of the Supreme Court of the United States
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
.[
]
Early life and career in New York
John Lord O'Brian was born in Buffalo, New York
Buffalo is the second-largest city in the U.S. state of New York (behind only New York City) and the seat of Erie County. It is at the eastern end of Lake Erie, at the head of the Niagara River, and is across the Canadian border from South ...
. He attended public schools there before matriculating to Harvard College
Harvard College is the undergraduate college of Harvard University, an Ivy League research university in Cambridge, Massachusetts. Founded in 1636, Harvard College is the original school of Harvard University, the oldest institution of higher lea ...
. After receiving a bachelor of arts (A.B.) degree from Harvard in 1896, O'Brian returned to his hometown and received a bachelor of laws (L.L.B.
Bachelor of Laws ( la, Legum Baccalaureus; LL.B.) is an undergraduate law degree in the United Kingdom and most common law jurisdictions. Bachelor of Laws is also the name of the law degree awarded by universities in the People's Republic of Chi ...
) degree from the University of Buffalo Law School in 1898.[SUNY Buffalo School of Law.]
O'Brian's career in public office began at the age of 32, when he was elected as a Republican
Republican can refer to:
Political ideology
* An advocate of a republic, a type of government that is not a monarchy or dictatorship, and is usually associated with the rule of law.
** Republicanism, the ideology in support of republics or agains ...
candidate to represent Buffalo in the New York State Assembly
The New York State Assembly is the lower house of the New York State Legislature, with the New York State Senate being the upper house. There are 150 seats in the Assembly. Assembly members serve two-year terms without term limits.
The Assem ...
in the election of November 1906. While in the State Assembly, O'Brian was considered a consistent supporter of Governor Charles Evans Hughes Sr.
Hughes recommended O'Brian to President Theodore Roosevelt
Theodore Roosevelt Jr. ( ; October 27, 1858 – January 6, 1919), often referred to as Teddy or by his initials, T. R., was an American politician, statesman, soldier, conservationist, naturalist, historian, and writer who served as the 26t ...
for the position of United States Attorney for the Western District of New York The United States Attorney for the Western District of New York is the chief federal law enforcement officer in seventeen New York (state), New York counties: Allegany County, New York, Allegany, Cattaraugus County, New York, Cattaraugus, Chautauqua ...
; O'Brian left the State Assembly to take that position in 1909.[ O'Brian served as the U.S. Attorney throughout the subsequent administration of President ]William Howard Taft
William Howard Taft (September 15, 1857March 8, 1930) was the 27th president of the United States (1909–1913) and the tenth chief justice of the United States (1921–1930), the only person to have held both offices. Taft was elected pr ...
. O'Brian also continued in that office into the administration of Democratic President Woodrow Wilson
Thomas Woodrow Wilson (December 28, 1856February 3, 1924) was an American politician and academic who served as the 28th president of the United States from 1913 to 1921. A member of the Democratic Party, Wilson served as the president of ...
, thus beginning a bipartisan path of serving as an appointed office holder under both Republican and Democratic administrations. In his role as the federal government's principal attorney in western New York, O'Brian in 1913 filed an antitrust
Competition law is the field of law that promotes or seeks to maintain market competition by regulating anti-competitive conduct by companies. Competition law is implemented through public and private enforcement. It is also known as antitrust l ...
lawsuit alleging that the Eastman Kodak Company
The Eastman Kodak Company (referred to simply as Kodak ) is an American public company that produces various products related to its historic basis in analogue photography. The company is headquartered in Rochester, New York, and is incorpor ...
was maintaining an unlawful monopoly
A monopoly (from Greek language, Greek el, μόνος, mónos, single, alone, label=none and el, πωλεῖν, pōleîn, to sell, label=none), as described by Irving Fisher, is a market with the "absence of competition", creating a situati ...
on photographic films and equipment.
In 1915, O'Brian was a delegate to the New York Constitutional Convention.
Justice Department Service During World War I
In 1917, O'Brian went to Washington, D.C.
)
, image_skyline =
, image_caption = Clockwise from top left: the Washington Monument and Lincoln Memorial on the National Mall, United States Capitol, Logan Circle, Jefferson Memorial, White House, Adams Morgan, ...
to serve as a special assistant attorney general to Thomas Watt Gregory
Thomas Watt Gregory (November 6, 1861February 26, 1933) was an American politician and lawyer. He was a progressive and attorney who served as US Attorney General from 1914 to 1919 under US President Woodrow Wilson.
Early life
Gregory was born ...
, the U.S. Attorney General
The United States attorney general (AG) is the head of the United States Department of Justice, and is the chief law enforcement officer of the federal government of the United States. The attorney general serves as the principal advisor to the p ...
under President Wilson. Gregory placed O'Brian in charge of the Department of Justice
A justice ministry, ministry of justice, or department of justice is a ministry or other government agency in charge of the administration of justice. The ministry or department is often headed by a minister of justice (minister for justice in a ...
's newly-formed War Emergency Division, which was responsible for enforcing the Espionage Act of 1917
The Espionage Act of 1917 is a United States federal law enacted on June 15, 1917, shortly after the United States entered World War I. It has been amended numerous times over the years. It was originally found in Title 50 of the U.S. Code (War ...
and later its amendments known as the Sedition Act of 1918
The Sedition Act of 1918 () was an Act of the United States Congress that extended the Espionage Act of 1917 to cover a broader range of offenses, notably speech and the expression of opinion that cast the government or the war effort in a neg ...
.
Although responsible for enforcing these congressional acts, O'Brian considered some of their provisions to be unconstitutional and declined to defend those provisions in court. To control unfettered and inconsistent enforcement of the statutes, O'Brian forbade local federal prosecutors from filing charges of espionage, sedition, or treason without approval from his Division in Washington. Working with fellow Justice Department attorney Alfred Bettman Alfred Bettman (1873 – 1945) was one of the key founders of modern urban planning. Zoning, as it is known today, can be attributed to his successful arguments before the U.S. Supreme Court, which resulted in the 1926 decision in favor of the Vil ...
, O'Brian shaped the Department's interpretation of the wartime statutes and the prosecution strategy for enforcing them. In the words of historian Theodore Kornweibel, O'Brian and Bettman "attempted to curb the most egregious violations of civil liberties." To the extent that O'Brian considered the statutes' provisions to be consistent with the U.S. Constitution
The Constitution of the United States is the supreme law of the United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven articles, it delineates the natio ...
, however, he played an active role in their enforcement. For example, O'Brian personally argued on behalf of the United States before the U.S. Supreme Court in the appeals brought by Charles Schenck
''Schenck v. United States'', 249 U.S. 47 (1919), was a landmark decision of the U.S. Supreme Court concerning enforcement of the Espionage Act of 1917 during World War I. A unanimous Supreme Court, in an opinion by Justice Oliver Wendell Holmes ...
(Schenck v. United States
''Schenck v. United States'', 249 U.S. 47 (1919), was a landmark decision of the U.S. Supreme Court concerning enforcement of the Espionage Act of 1917 during World War I. A unanimous Supreme Court, in an opinion by Justice Oliver Wendell Holmes ...
) and Eugene Debs
Eugene may refer to:
People and fictional characters
* Eugene (given name), including a list of people and fictional characters with the given name
* Eugene (actress) (born 1981), Kim Yoo-jin, South Korean actress and former member of the sin ...
(Debs v. United States
''Debs v. United States'' 249 U.S. 211 (1919) was a United States Supreme Court decision, relevant for US labor law and constitutional law, that upheld the Espionage Act of 1917.
Facts
Eugene V. Debs was an American labor and political leader an ...
) from their convictions for violating the Espionage Act of 1917.
While in charge of the War Emergency Division, O'Brian hired J. Edgar Hoover
John Edgar Hoover (January 1, 1895 – May 2, 1972) was an American law enforcement administrator who served as the first Director of the Federal Bureau of Investigation (FBI). He was appointed director of the Bureau of Investigation ...
, who had just finished his legal education in Washington. Impressed with Hoover's diligence, O'Brian promoted him to Special Agent in charge of the Division's Alien Enemy Bureau. O'Brian later said of hiring Hoover, "It is one of the sins for which I have to atone."[Newman, p.405.]
Activity Between the World Wars
O'Brian left the Justice Department in 1919 and returned to the practice of law in Buffalo.[Newman, p. 405.] Before the end of that year, he was mentioned as a potential Republican Party candidate for Governor of New York
The governor of New York is the head of government of the U.S. state of New York. The governor is the head of the executive branch of New York's state government and the commander-in-chief of the state's military forces. The governor has ...
. A faction of Progressive Republicans in New York also tried to enlist O'Brian to run in 1920 as challenger for the party's U.S. Senate nomination against incumbent Republican Senator James Wadsworth Jr. Those Progressives cited O'Brian's support for women's suffrage
Women's suffrage is the right of women to vote in elections. Beginning in the start of the 18th century, some people sought to change voting laws to allow women to vote. Liberal political parties would go on to grant women the right to vot ...
as one of the reasons to prefer him to Wadsworth. O'Brian, however, declined to seek that nomination.
With the election of President Herbert Hoover
Herbert Clark Hoover (August 10, 1874 – October 20, 1964) was an American politician who served as the 31st president of the United States from 1929 to 1933 and a member of the Republican Party, holding office during the onset of the Gr ...
in 1928, O'Brian was considered for the position of U.S. Solicitor General
The solicitor general of the United States is the fourth-highest-ranking official in the United States Department of Justice. Elizabeth Prelogar has been serving in the role since October 28, 2021.
The United States solicitor general represent ...
, but was passed over in favor of Charles Evans Hughes Jr.
Charles Evans Hughes Jr. (November 30, 1889 – January 21, 1950) was the United States Solicitor General from 1929 to 1930. He was the son of Supreme Court chief justice Charles Evans Hughes.
Early life
Hughes was born in New York City on Nov ...
Instead, O'Brian served in the Hoover administration from 1929 to 1933 as the Assistant Attorney General
Many of the divisions and offices of the United States Department of Justice are headed by an assistant attorney general.
The president of the United States appoints individuals to the position of assistant attorney general with the advice and ...
in charge of the Antitrust Division of the Justice Department. In this role, O'Brian argued on behalf of the federal government (including the Federal Trade Commission
The Federal Trade Commission (FTC) is an independent agency of the United States government whose principal mission is the enforcement of civil (non-criminal) antitrust law and the promotion of consumer protection. The FTC shares jurisdiction ov ...
) in more than 20 cases before the U.S. Supreme Court.
Upon leaving the Justice Department in 1933, O'Brian returned to private practice in Buffalo. There his clients included Pierce-Arrow Motor Car Company
The Pierce-Arrow Motor Car Company was an American Automotive industry, motor vehicle manufacturer based in Buffalo, New York, which was active from 1901 to 1938. Although best known for its expensive Luxury vehicle, luxury cars, Pierce-Arrow ...
, which he counseled as the luxury car maker struggled to remain in business during the Great Depression
The Great Depression (19291939) was an economic shock that impacted most countries across the world. It was a period of economic depression that became evident after a major fall in stock prices in the United States. The economic contagio ...
.
In the later 1930s, the Tennessee Valley Authority
The Tennessee Valley Authority (TVA) is a federally owned electric utility corporation in the United States. TVA's service area covers all of Tennessee, portions of Alabama, Mississippi, and Kentucky, and small areas of Georgia, North Carolina ...
hired O'Brian as counsel to defend legal challenges to the constitutionality of the federally-owned corporation. As lead counsel, O'Brian twice argued before the U.S. Supreme Court in cases that upheld the TVA's legality.
In the congressional election of 1938, O'Brian ran unsuccessfully as a Republican against incumbent Democratic Senator Robert F. Wagner.
At the 1940 Republican National Convention
The 1940 Republican National Convention was held in Philadelphia, Pennsylvania, from June 24 to June 28, 1940. It nominated Wendell Willkie of New York for president and Senator Charles McNary of Oregon for vice president.
The contest for the 19 ...
, O'Brian gave the nomination speech for Thomas E. Dewey
Thomas Edmund Dewey (March 24, 1902 – March 16, 1971) was an American lawyer, prosecutor, and politician who served as the 47th governor of New York from 1943 to 1954. He was the Republican candidate for president in 1944 and 1948: although ...
, saying that Dewey could "be trusted to keep the country out of war." O'Brian likewise said that Dewey was "a life-long" Republican, that is, not like Wendell Willkie
Wendell Lewis Willkie (born Lewis Wendell Willkie; February 18, 1892 – October 8, 1944) was an American lawyer, corporate executive and the 1940 Republican nominee for President. Willkie appealed to many convention delegates as the Republican ...
.
War Production Board Service During World War II
During World War II, O'Brian served as general counsel to the Office of Production Management
The Office of Production Management was a United States Government agency that existed from January 1941 to centralize direction of the federal procurement programs and quasi-war production during the period immediately proceeding the United State ...
and to its successor, the War Production Board
The War Production Board (WPB) was an agency of the United States government that supervised war production during World War II. President Franklin D. Roosevelt established it in January 1942, with Executive Order 9024. The WPB replaced the Sup ...
. O'Brian played a central role in organizing the Board's wartime activities and determining the scope of its authority.
Activity After World War II
When his government service concluded in the last months of World War II, O'Brian joined the Washington, D.C.
)
, image_skyline =
, image_caption = Clockwise from top left: the Washington Monument and Lincoln Memorial on the National Mall, United States Capitol, Logan Circle, Jefferson Memorial, White House, Adams Morgan, ...
, law firm Covington & Burling
Covington & Burling LLP is an American multinational law firm. Headquartered in Washington, D.C., the firm advises clients on transactional, litigation, regulatory, and public policy matters. In 2021, Vault.com ranked Covington & Burling as ...
on January 1, 1945. The name of the law firm changed several times before and after O'Brian's arrival, particularly when partner Dean Acheson
Dean Gooderham Acheson (pronounced ; April 11, 1893October 12, 1971) was an American statesman and lawyer. As the 51st U.S. Secretary of State, he set the foreign policy of the Harry S. Truman administration from 1949 to 1953. He was also Truman ...
either left for or returned from government office; by 1950, it was known as Covington, Burling, Rublee, O'Brian & Shorb. When Paul Shorb died, it was O'Brian who proposed that the name revert to simply Covington & Burling, which it has remained since 1951.
O'Brian remained actively engaged in the practice of law beyond his 75th birthday. In 1949, O'Brian counseled Major League Baseball
Major League Baseball (MLB) is a professional baseball organization and the oldest major professional sports league in the world. MLB is composed of 30 total teams, divided equally between the National League (NL) and the American League (AL), ...
Commissioner Happy Chandler
Albert Benjamin "Happy" Chandler Sr. (July 14, 1898 – June 15, 1991) was an American politician from Kentucky. He represented Kentucky in the U.S. Senate and served as its 44th and 49th governor. Aside from his political positions, he also se ...
in responding to challenges to the antitrust
Competition law is the field of law that promotes or seeks to maintain market competition by regulating anti-competitive conduct by companies. Competition law is implemented through public and private enforcement. It is also known as antitrust l ...
exemption that had been recognized by the U.S. Supreme Court in 1922 in Federal Baseball Club v. National League
''Federal Baseball Club v. National League'', 259 U.S. 200 (1922), is a case in which the U.S. Supreme Court ruled that the Sherman Antitrust Act did not apply to Major League Baseball.
Background
After the Federal League folded in 1915, most of ...
. In 1952, at the age of 77, he acted as co-counsel with John W. Davis
John William Davis (April 13, 1873 – March 24, 1955) was an American politician, diplomat and lawyer. He served under President Woodrow Wilson as the Solicitor General of the United States and the United States Ambassador to the United Kingdom ...
in successfully opposing the Truman Administration's effort to take possession and operational control of the American steel industry in the Steel Seizure Case. In January 1956, at the age of 81, O'Brian argued for the last time before the U.S. Supreme Court. More than a year later, he was still arguing for clients before the federal circuit court of appeals in Washington, D.C.
In 1955, O'Brian delivered the Godkin Lectures at Harvard University
Harvard University is a private Ivy League research university in Cambridge, Massachusetts. Founded in 1636 as Harvard College and named for its first benefactor, the Puritan clergyman John Harvard, it is the oldest institution of higher le ...
, entitling his series "Security in an Age of Anxiety." His lectures were published by Harvard under the title "National Security and Individual Freedom." Speaking just months after the December 1954 Senate censure of Senator Joseph McCarthy
Joseph Raymond McCarthy (November 14, 1908 – May 2, 1957) was an American politician who served as a Republican U.S. Senator from the state of Wisconsin from 1947 until his death in 1957. Beginning in 1950, McCarthy became the most visi ...
, and reflecting on his World War I experience at the Justice Department, O'Brian warned against the danger of "craving for security at any price" and expressed his discomfort with many Cold War security and loyalty programs.
He died on April 11, 1973.
Recognitions
The law school building at the State University of New York at Buffalo
The State University of New York at Buffalo, commonly called the University at Buffalo (UB) and sometimes called SUNY Buffalo, is a public research university with campuses in Buffalo and Amherst, New York. The university was founded in 1846 ...
is named after O'Brian.
In 1956, a professorship at Harvard Divinity School
Harvard Divinity School (HDS) is one of the constituent schools of Harvard University in Cambridge, Massachusetts. The school's mission is to educate its students either in the academic study of religion or for leadership roles in religion, gov ...
was endowed by admirers of O'Brian and named in his honor, recognizing his service in the late 1940s as chairman of a committee dedicated to "revitalizing" that school.
References
{{DEFAULTSORT:OBrian, John Lord
1874 births
United States Assistant Attorneys General for the Antitrust Division
United States Attorneys for the Western District of New York
Lawyers who have represented the United States government
Hoover administration personnel
Woodrow Wilson administration personnel
Harvard University alumni
University at Buffalo Law School alumni
People of the Office of Strategic Services
1973 deaths
People associated with Covington & Burling