The White Court: Justices, Rulings, and Legacy (ABC-Clio Supreme Court Handbooks)

The White Court

ABC-CLIO SUPREME COURT HANDBOOKS The Burger Court, Tinsley E. Yarbrough The Fuller Court, James W. Ely, Jr. The Hughes Court, Michael E. Parrish The Stone Court, Peter G. Renstrom The Taft Court, Peter G. Renstrom The Taney Court, Timothy S. Huebner The Waite Court, Donald Grier Stephenson, Jr. The Warren Court, Melvin I. Urofsky The White Court, Rebecca S. Shoemaker Forthcoming: The Chase Court, Jonathan Lurie The Jay/Ellsworth Court, Matthew P. Harrington The Marshall Court, Robert L. Clinton The Rehnquist Court, Thomas R. Hensley The Vinson Court, Michal R. Belknap Peter G. Renstrom, Series Editor

ABC-CLIO SUPREME COURT HANDBOOKS

The White Court Justices, Rulings, and Legacy Rebecca S. Shoemaker

ABC-CLIO Santa Barbara, California • Denver, Colorado • Oxford, England

Copyright © 2004 by Rebecca S. Shoemaker All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, except for the inclusion of brief quotations in a review, without prior permission in writing from the publishers. Library of Congress Cataloging-in-Publication Data is available from the Library of Congress. ISBN 1-57607-973-2 (hardcover) ISBN 1-57607-974-0 (e-book) 08

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This book is also available on the World Wide Web as an e-book. Visit abc-clio.com for details. ABC-CLIO, Inc. 130 Cremona Drive, P.O. Box 1911 Santa Barbara, California 93116-1911 This book is printed on acid-free paper ∞ . Manufactured in the United States of America

To all my loving family, especially Roy and Adam

Contents

Series Foreword, xi Preface, xiii

PART ONE

Justices, Rulings, and Legacy, 1 1

The White Court and the Period, 3 Regulation of Business, 4 Regulation of Railroads, 6 Labor Law, 8 Progressive Social Reform, 10 Civil Rights Issues, 12 Government Reform during the Progressive Era, 13 Assembling the White Court, 15 Aggregate Profile, 29 Comparing the Fuller and White Courts, 32 References and Further Reading, 33

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The Justices, 35 John Marshall Harlan (1833–1911), 35 Edward Douglass White (1845–1921), 41 Joseph McKenna (1843–1926), 46 Oliver Wendell Holmes Jr. (1841–1935), 51 William Rufus Day (1849–1923), 56 Charles Evans Hughes (1862–1948), 60 Horace Harmon Lurton (1844–1914), 67 Joseph Rucker Lamar (1857–1916), 72

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Willis Van Devanter (1859–1941), 76 Mahlon Pitney (1858–1924), 81 James Clark McReynolds (1862–1946), 86 Louis Dembitz Brandeis (1856–1941), 91 John Hessin Clarke (1857–1945), 97 References and Further Reading, 101

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Major Decisions, 107 The Antitrust Laws, 109 The Relationship between Patents and Monopoly, 117 The Interstate Commerce Act, 121 Progressive Reform Legislation, 126 Labor Legislation, 130 Racial Discrimination, 139 War and the Constitution, 146 Civil Liberties, 154 Questions of Federal Power, 159 State Powers, 165 References and Further Reading, 166

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Legacy and Impact, 167 Regulation of Trusts: Development of the Rule of Reason, 169 The Interstate Commerce Commission and the Regulation of Railroads, 173 Organized Labor, 175 State and Federal Police Power, 177 Civil Rights, 184 War Powers, 187 Civil Liberties, 190 Growth of Federal Power, 194 Comparison to the Taft Court, 197 References and Further Reading, 198

PART TWO

Reference Materials, 201 Key People, Laws, and Events, 203 Appendix: Documents, 247

Contents

Chronology, 259 Table of Cases, 267 Glossary, 275 Annotated Bibliography, 289 Index, 301 About the Author, 311

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Series Foreword

here is an extensive literature on the U.S. Supreme Court, but it contains discussion familiar largely to the academic community and the legal profession. The ABC-CLIO Supreme Court series is designed to have value to the academic and legal communities also, but each volume is intended as well for the general reader who does not possess an extensive background on the Court or American constitutional law. The series is intended to effectively represent each of fourteen periods in the history of the Supreme Court with each of these fourteen eras defined by the chief justice, beginning with John Marshall in 1803. Each Court confronted constitutional and statutory questions that were of major importance to and influenced by the historical period. The Court’s decisions were also influenced by the values of each of the individual justices sitting at the time. The issues, the historical period, the justices, and the Courts’ decisions in the most significant cases will be examined in the volumes of this series. ABC-CLIO’s Supreme Court series provides scholarly examinations of the Court as it functioned in different historical periods and with different justices. Each volume contains information necessary to understand each particular Court and an interpretative analysis by the author of each Court’s record and legacy. In addition to representing the major decisions of each Court, institutional linkages are examined as well—the political connections among the Court, Congress, and the executive branch. These relationships are important for several reasons. Although the Supreme Court retains some institutional autonomy, all the Court’s justices are selected by a process that involves the other two branches. Many of the significant decisions of the Court involve the review of actions of Congress or the president. In addition, the Court frequently depends on the other two branches to secure compliance with its rulings. The authors for the volumes in this series were selected with great care. Each author has worked extensively with the Court, the period, and the personalities about which he or she has written. ABC-CLIO wanted each of the volumes to examine several common themes, and each author agreed to work within certain guidelines. Each author was free, however, to develop the content of each volume, and many of the volumes advance new or distinctive conclusions about the Court under examination.

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Each volume contains four substantive chapters. The first chapter introduces the Court and the historical period in which it served. The second chapter examines each of the justices who sat on the particular Court. The third chapter represents the most significant decisions rendered by the particular Court. Among other things, the impact of the historical period and the value orientations of the individual justices are developed. A fourth and final chapter addresses the impact of each particular Court on American constitutional law—its doctrinal legacy. Each volume contains several features designed to make it more valuable to those whose previous exposure to the Supreme Court and American constitutional law is limited. Each volume has a reference section that contains brief entries on some of the people, statutes, events, and concepts introduced in the four substantive chapters. Entries in this section are arranged alphabetically. Each volume also contains a glossary of selected legal terms used in the text. Following each of the four chapters, a list of sources used in the chapter and suggestions for further reading appears. Each volume also has a comprehensive annotated bibliography. A listing of Internet sources is presented at the end of the bibliography. Finally, there is a comprehensive subject index and a list of cases (with citation numbers) discussed in each volume. ABC-CLIO is delighted with the quality of scholarship represented in each volume and is proud to offer this series to the reading public. Permit me to conclude with a personal note. This project has been an extraordinarily rewarding undertaking for me as series editor. Misgivings about serving in this capacity were plentiful at the outset of the project. After tending to some administrative business pertaining to the series, securing authors for each volume was the first major task. I developed a list of possible authors after reviewing previous work and obtaining valuable counsel from several recognized experts in American constitutional history. In virtually every instance, the first person on my list agreed to participate in the project. The high quality of the series was assured and enhanced as each author signed on. I could not have been more pleased. My interactions with each author have been most pleasant, and the excellence of their work will be immediately apparent to the reader. I sincerely thank each author. Finally, a word about ABC-CLIO and its staff. ABC-CLIO was enthusiastic about the project from the beginning and has done everything necessary to make this series successful. I am very appreciative of the level of support I have received from ABCCLIO. Alicia Merritt, senior acquisitions editor, deserves special recognition. She has held my hand throughout the project. She has facilitated making this project a reality in every conceivable way. She has encouraged me from the beginning, provided invaluable counsel, and given me latitude to operate as I wished while keeping me on track at the same time. This project would not have gotten off the ground without Alicia, and I cannot thank her enough. —Peter G. Renstrom

Preface

he period from 1910 to 1921 in the history of the U.S. Supreme Court is often referred to as a time of transition. In some ways it was. The country was continuing its rapid evolution from an agrarian society to a complex urbanized, industrialized nation. Many of the legal and constitutional issues related to that evolution that had been raised in the late 1800s and early 1900s continued to demand the time and attention of the courts, as well as of other branches of government. The political, social, and economic reforms that characterized the Progressive movement were continuing to move toward fruition, and with that movement came questions about the constitutionality of some of the means by which the reforms were being achieved. Involvement in the greatest war effort in the nation’s history required reevaluation of policies for mobilization and military preparedness. The government’s response to the antiwar activities of protestors of a variety of stripes gave rise to the first focused debates on the meaning and extent of civil liberties protections guaranteed by the Bill of Rights. Under the leadership of Chief Justice Edward Douglass White, the Court dealt with all these issues, resolving some, prompting new questions about others, and laying the groundwork for continued consideration of those that would continue to evolve in the following decades. Like the issues that confronted them, the thirteen justices who served on the Supreme Court at various times between 1910 and 1921 reflected the periods that had produced them. In the first years, several Civil War veterans were completing their terms of service. Other justices came from backgrounds in business and corporate law, which had helped to shape their attitudes of economic conservatism. In the second half of the decade, there was increased evidence of the progressive tendencies of more recent appointees, reflected in the increased number of dissents in key cases, and evidence of belief in the advisability of a certain amount of judicial activism. White, who had been chosen with the hope that he would bring improved administration and efficiency to the operation of the Court, struggled with the challenges of leading such a diverse group whose membership and intellectual evolution was in a state of flux, particularly in the last years of the decade. Throughout the period, the diverse

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philosophies of the justices influenced their votes, their opinions, and their mutual relationships. Despite the obvious difficulties of working in a time of transition, the White Court made a number of significant contributions to the interpretation of the Constitution and the development of the law. The establishment of the rule of reason marked a turning point in the campaign for federal regulation of trusts and other business conglomerates. The expansion of the field of administrative law increased opportunities for the federal government to regulate complicated business operations, especially systems of transportation and communication. Approval of innovative uses of state and federal police power gave governments new tools that they could use to legislate for the health, safety, and welfare of the public. All but unanimous consent to the creation and use of expanded executive authority during World War I established precedents that would be relied upon in future times of crisis. Finally, although they approved the restrictions on civil liberties that had been invoked during the war, the justices, in their struggle to deal with these actions, set in motion the intellectual and legal debates that would eventually provide the basis for expanded interpretations of the reach of civil liberties protections. Although I was initially asked to write this book on the White Court because of my interest in civil liberties history and its role in the development of that issue in U.S. history, I have found the whole story of the Court’s work between 1910 and 1921 to be of increasing interest. I am glad to have been able to prepare this volume, which will make accessible to an increased number of readers a basic overview of what I have found to be an absorbing chapter in the history of the Supreme Court. This book is intended to provide for the student, the scholar, or the interested layman a variety of resources that explore in some detail the work of the Court in the period from 1910 to 1921. Chapter One offers a brief look at the historical background for the period and provides a discussion of some of the major issues and events that informed and influenced the work of the White Court. Chapter Two provides capsule biographies of each of the thirteen men who served on the U.S. Supreme Court between 1910 and 1921, including an evaluation of each one’s contribution to the institution’s accomplishments during the period. The third chapter discusses the most important decisions produced by the White Court, describing their origins, the issues they raised, the Court’s rulings, and their impact. The fourth chapter deals with the White Court’s major achievements and its contribution to the ongoing understanding and interpretation of the U.S. Constitution. In addition to these four chapters, Part Two offers a variety of sources of valuable information on the White Court. The section entitled Key People, Laws, and Events provides short descriptions of individuals, statutes, and topics of significance in the work of the Court. An appendix provides excerpts of some key opinions written during the period. A chronology lists the dates of the passage of important laws, issuance of Court opinions, appointment of justices,

Preface

and other significant events. A table of cases lists the names and citations for Supreme Court decisions mentioned in the text, and the glossary provides definitions of legal terms encountered in the text. Finally, an extensive annotated bibliography directs the reader to other sources on topics related to the White Court. I am pleased to be able to express gratitude publicly to numerous people who helped me with the preparation of this volume. First and foremost, I thank Peter G. Renstrom of Western Michigan University, the editor of this series. He persuaded me to take on the project and was consistently kind, patient, helpful, and encouraging throughout the process. My thanks also go to Alicia Merritt, acquisitions editor at ABCCLIO, Inc., for her cheerful and unfailing assistance throughout the production of the manuscript. I thank Melanie Stafford, senior production editor at ABC-CLIO, for her help with the editorial process. I thank Dr. F. Robert Hunter and the Department of History at Indiana State University for their encouragement and support, and for granting me a reduced teaching load that provided time for work on the project. I thank the staffs of the Cunningham Memorial Library at Indiana State University and of the library at the Indiana University School of Law–Indianapolis for their help with my research needs. Last, but certainly not least, I thank all my family for their love, support, and encouragement. Rebecca S. Shoemaker

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PART ONE

Justices, Rulings, and Legacy

1 The White Court and the Period he U.S. Supreme Court under Chief Justice Edward Douglass White spanned the second decade of the twentieth century, from 1910 to 1921. The Court was, in most of its work, not a groundbreaking institution during this period. Many of the cases it heard and decided dealt with issues and trends that extended back into the late 1800s. The period during which the White Court served has sometimes been described as a time of transition in Court history, an interval during which the Court moved from the more conservative and traditional attitudes of the nineteenth century to the more complex and often more controversial issues of the modern industrialized world. The Court was called upon to resolve such issues as the extent and nature of regulatory powers that could be exercised by federal and state governments, ways in which the Constitution should be interpreted to address these issues, and the extent to which old laws and traditions must give way to new times and conditions. To a certain extent, the work of the White Court built upon the foundations that had been laid by the Fuller Court that preceded it. Only in controversies raised by the advent of World War I did the White Court break new ground. The White Court has frequently been described as conservative, stodgy, and unremarkable, but it should be noted that in its work in this era the Court tread carefully to craft the transition to the modern postwar era. Edward Douglass White, a former Confederate soldier, an attorney, and a politician from Louisiana, was first named to the Court as an associate justice by President Grover Cleveland on January 15,1894, and was confirmed the following day. As a member of the Fuller Court, he participated in many of the decisions that would lay the groundwork for the deliberations the institution would undertake during his own leadership. During this period of service he weighed in on such controversial topics as trust-busting, the relation of the United States to its newly acquired overseas possessions, and the efforts of the Progressives to devise a role for government in protecting the interests of laborers and consumers. On December 12, 1910, White was nominated by President William Howard Taft to succeed Melville W. Fuller as chief justice. The first associate justice to be so elevated, White took his position in the center seat on January 3, 1911. Despite physical infirmities in his later years, White continued to

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serve as chief justice until his death on May 19, 1921. He was succeeded in the position by Taft, the man who had nominated him. The period of White’s leadership of the Court saw the country deal with a number of disparate issues and conflicts. The tide of progressivism that had begun to sweep over the country in the early 1900s continued, with the refinement of the government’s efforts to regulate or restrict big business, both through the use of antitrust legislation and the creation and operation of government agencies and commissions. Efforts to improve the lot of laborers, while at the same time reining in organized labor, continued. Numerous suits tested the constitutionality of the application of federal police power to social, moral, and consumer issues. The entry of the United States into World War I raised questions about the extent of federal war powers, particularly those exercised by the chief executive. Initiatives to counter antiwar efforts and to stem disloyalty resulted in restrictive legislation that raised questions about the comprehensiveness of civil liberties guarantees. Finally, a series of constitutional amendments passed during the period raised questions both about the use of this constitutional tool and its purpose.

Regulation of Business In the last third of the nineteenth century, business and industry grew rapidly in the United States. The increasing complexity of business arrangements, including the development of a growing number of mergers and combinations, brought with them demands for regulation. The general public, feeling that they, and their financial futures, were at the mercy of conglomerates wielding enormous power to manipulate and control the economy, began to demand government regulation. In addition, some businessmen also advocated government action to eliminate cutthroat competition. The development of enterprises that operated in numerous states made it clear that states could not regulate many businesses effectively. The federal government, torn between the demands for regulation and the resistance to it by powerful business magnates, attempted to craft policies that would both satisfy the public and protect property interests. In 1890 Congress passed what many consider the single most important regulatory law in U.S. history, the Sherman Anti-Trust Act. The result of extensive negotiation and compromise among members of Congress and the interest groups who had a stake in the issue, the Sherman Act prohibited “Every contract, combination . . . or conspiracy in the restraint of trade or commerce.” Enforcement of the law would be the responsibility of the federal Justice Department and would require extensive deliberations and rulings by the federal courts that heard the suits that would inevitably follow. Those determined not to allow enforcement of the law to interfere with their

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business operations found numerous legal loopholes that they could use to limit the law’s application. In 1895 the U.S. Supreme Court handed down its first major ruling in a suit challenging the Sherman Act, and, in so doing, outlined an interpretation that would limit the law’s usefulness for more than a decade. The case, United States v. E. C. Knight Company (1895), challenged a business combination created in 1892 by the American Sugar Refining Company. The Fuller Court ruled that, although Congress did have the power to regulate commerce by passing the Sherman Act, the company in question did not violate the act because, since its primary function was manufacturing, its operation had only an indirect effect on interstate trade. The ruling thereby created a distinction between “direct” and “indirect” commerce, holding that regulation of the latter did not fall within the purview of Congress through the Commerce Clause. This had the effect of creating a loophole that industries could use to argue that they were not operating in violation of the Sherman Act. The first successful efforts to use the Sherman Act to rein in the activities of large business conglomerates came during the administration of President Theodore Roosevelt. Roosevelt, demonstrating some sympathy for the demands of progressive reformers and others who pressed for regulation of big business, argued that there were “good trusts” and “bad trusts.” “Good trusts” were those, like the American Telephone and Telegraph Company, that provided services or ran a particular business or industry more efficiently and effectively than could many smaller operations in competition with one another. He instructed his Justice Department to work out agreements with offending businesses where possible, but in some cases supported the filing of civil suits. The first major U.S. Supreme Court decision upholding the dissolution of a combination for violating the Sherman Act came in Northern Securities Co. v. United States (1904). The majority opinion by Justice John Marshall Harlan found the Northern Securities Company, which held the stock of three major railroad companies, to be operating in violation of the Sherman Act. This decision served as a precedent for future antitrust litigation. An increasing number of lawsuits based on the Sherman Act were filed during the Taft administration, and numerous combinations were forced to break up or to reorganize. Throughout the period, however, there were a number of justices who dissented to majority rulings, arguing that every form of business organization established some type of restraint. Then Associate Justice Edward Douglass White frequently made this point, most notably in his dissent in United States v. Trans-Missouri Freight Association (1897), in which he argued that it was unreasonable to try to eliminate every form of combination. This contention, which surfaced frequently in debates over antitrust suits in the early twentieth century, laid the groundwork for one of the White Court’s most significant opinions, that in Standard Oil Co. v. United States (1911).

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Regulation of Railroads The regulation of railroad operations presented challenges similar to those involved in the monitoring of business combinations, but at the same time raised issues that were peculiar to this specific industry. Railroads fell under the common law dictum that common carriers must serve all persons and may be regulated under state police power. This traditional rule did not, however, prohibit all discrimination, an omission that would give rise to many of the most frequent complaints about railroad operations in the United States in the late nineteenth and early twentieth centuries. Unlike manufacturing operations, railroads clearly fit into the category of commerce, and, by the late 1800s, many, if not most, were conducting interstate operations. On the surface, therefore, it could be argued that Congress possessed broad powers to regulate them under the Commerce Clause. As the number and size of railroad companies grew in the late nineteenth century, and as smaller lines were rapidly absorbed by consolidation into major networks, calls for federal regulation of railroads became more frequent and persistent. Among the complaints that prompted the passage of both state and federal regulations was the so-called long-haul/short-haul controversy. Farmers and owners of small businesses complained that they were charged high rates by railroad companies that then gave special deals to large corporations that shipped a high volume of goods over long distances, thereby offering the railroads much of their more lucrative business. Others charged that the creation of consolidated railroads and even railroad holding companies reduced or even eliminated competition. In addition, some railroad owners themselves favored restraints that would restrict cutthroat competition. These demands for government action resulted in the passage of the Interstate Commerce Act of 1887. Unlike the Sherman Act’s call for direct action by the executive branch, this law placed responsibility for the regulation of the railroads in the hands of an Interstate Commerce Commission (ICC). This federally appointed body was given the power to receive complaints, investigate railroad records, hold hearings, and issue cease and desist orders. The law also banned long-haul/short-haul discrimination, rebates, kickbacks, and other special arrangements and provided that rates should be reasonable and just. It did not spell out exactly what the last two terms meant, nor did it give the ICC direct power to set rates. The ICC was the first in what was to become a series of federal agencies given special powers to regulate specific categories of businesses and industries. Some questioned whether such an entity was constitutional, given that, although it was located in the executive branch, it also was given official authority to exercise powers that normally would be the purview of the legislative and judicial branches. For example, the power to hold hearings and issue guidelines gave it a type of legislative authority, and the power to hear complaints and issue judgments gave it a type of judicial

The White Court and the Period

power. This debate continued for some years, but, as Congress found this type of federal agency particularly useful for carrying out regulatory functions for which it had neither the time nor the expertise, it created a variety of such bodies. Challenges to the work of this type of agency resulted in a number of Court rulings supporting Congress’s action in creating them and culminated eventually in their being regularized through the formulation of the doctrine of administrative discretion. Although some railroad executives supported government regulation of their business, they were concerned about how broad the power of the Interstate Commerce Commission might become. When the commission began to issue rulings in the 1890s that were unfavorable to the railroads being examined, companies responded with lawsuits in which they attempted, often successfully, to get the courts to limit the interpretation of the commission’s authority under the law. In a series of decisions, the U.S. Supreme Court denied the commission power to set railroad rates (Cincinnati, New Orleans, and Texas Pacific Railway Co. v. Interstate Commerce Commission [1896]) and subsequently denied the commission any power over rates (Interstate Commerce Commission v. Cincinnati, New Orleans, and Texas Pacific Railway Company [1897]). Progressive insistence in the early 1900s that government take action to correct some of the most egregious abuses of the railroad conglomerates led to the passage during the Roosevelt administration of the Elkins Act (1903), banning any use of rebates, and the Hepburn Act (1906), which was designed to correct some of the limitations on the ICC’s authority that had resulted from court rulings in the previous decade. This new law empowered the ICC to review and revise railroad rates and limited judicial review of commission findings. Whether these laws would be effective in regulating railroad activities was, however, dependent upon their analysis by the courts. In two cases pitting the Interstate Commerce Commission against the Illinois Central Railroad, the U.S. Supreme Court indicated its increased willingness to allow the ICC to do its work unimpeded. In Illinois Central Railroad Co. v. Interstate Commerce Commission (1907), the Court closed a major loophole in the enforcement of the Interstate Commerce Act by declaring that it would no longer undo the work of the commission by revisiting and reconsidering the original facts of a case. In 1910, in a second case involving the same litigants, Interstate Commerce Commission v. Illinois Central Railroad Company, then Associate Justice Edward Douglass White wrote for the majority that thenceforth they would only consider whether the government agency had the authority, under its enabling legislation, to take the action that was under consideration. They would no longer review the arguments about the reasoning behind the commission’s rulings. Although no major changes in the operation of the Interstate Commerce Commission resulted from the rulings of the White Court, it did take the opportunity to

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Front Row, left to right: Oliver Wendell Holmes Jr., John Marshall Harlan, Edward D. White, Joseph McKenna, William R. Day. Back Row, left to right: Willis Van Devanter, Horace H. Lurton, Charles Evans Hughes, Joseph R. Lamar (Harris & Ewing, Collection of the Supreme Court of the United States)

fine-tune earlier rulings and to spell out the extent of federal authority to control intrastate railroad traffic. The Court during this period also heard challenges to federal intervention in railroad operations prompted by U.S. involvement in World War I.

Labor Law With the advent of increased industrialization in the late nineteenth-century United States, more constitutional and legal questions concerning conditions of labor drew the attention of federal and state governments, spawning actions that frequently required judicial response. Under traditional common law, the laborer was seen as assuming complete responsibility for his safety and welfare on the job. He was believed to understand risks and to acquiesce in them when he accepted employment. This characterization of the relationship between employer and employee was further solidified in the courts’ development in the late nineteenth century of the doctrine of freedom of contract. Referring to the due process clause of the Fourteenth Amendment to the U.S. Constitution, the U.S. Supreme Court in Allgeyer v. Louisiana (1897)

The White Court and the Period

defined liberty of contract as “not only the right of the citizen to be free from the mere physical restraint of his person . . . but the right . . . to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary, and necessary to his carrying out to a successful conclusion the purposes above mentioned” (Allgeyer, 578). Using the doctrine of freedom of contract, federal and state courts rejected repeatedly efforts to legislate for the protection of workers in many kinds of endeavors. In the late 1800s and early 1900s, courts continued to take a dim view of restrictions on working conditions, but they gradually became willing to recognize the validity of some arguments in favor of protection. Particularly noteworthy in this regard are the Court’s decisions in Holden v. Hardy (1898), permitting the limitation of the number of hours worked per day by those in hazardous occupations such as mining, and Muller v. Oregon (1908), upholding a state law limiting the number of hours per day worked by women in laundries. The Court was not willing, however, to uphold hours restrictions in cases where there was no compelling justification, as in Lochner v. New York (1905), which tested a law limiting hours for workers in bakeries. The Court in 1908 also frustrated the efforts of the Congress under the Commerce Clause to set aside the old common law tradition and make employers responsible for workers injured on the job. In its opinion in the First Employers’ Liability Cases (1908), a divided Court seized on a technicality to overturn the Federal Employers’ Liability Act, which had been passed in 1906. Both Justice Edward Douglass White, for the majority, and those writing in dissent noted that there were possible circumstances under which such legislation could be supported by the Commerce Clause, but in this case Congress had overexpanded the reach of the Commerce Clause. The Second Employers’ Liability Act of 1908 addressed the Court’s concerns and was eventually upheld by the White Court in 1912. In its rulings in cases having to do with the efforts of labor unions in the late 1800s and early 1900s, the U.S. Supreme Court was generally unsympathetic. As strikes involved increasing numbers of workers and affected business in large areas of the country, public sentiment for federal corrective action was strong. Under the common law, strikers could be charged with the crime of conspiracy. In a major decision handed down in In re Debs (1895), the U.S. Supreme Court handed factory owners another powerful weapon to use against striking workers, when it approved the issuance of injunctions against union activity under the Sherman Anti-Trust Act of 1890. In the Danbury Hatters’ case, Loewe v. Lawlor (1908), the Court also banned the use by labor unions of secondary boycotts. When labor leaders challenged a federal law banning the use of yellow-dog contracts, the Court agreed, overturning the legislation in Adair v. United States (1908). The combination of the doctrine of liberty of

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contract and general continuous lobbying by employers meant that controversies involving the rights of labor would appear frequently before the White Court, as well.

Progressive Social Reform The Progressive reform movement in the early twentieth century grew out of concerns about the changing social, economic, and political conditions that had resulted from the changes brought about by the rapid industrialization of the country in that period. Reformers saw need for changes and improvements in a variety of areas and generally developed the attitude that many of these reforms could be accomplished only by government action. They believed that government, both state and federal, could act to correct problems that citizens could not solve themselves. They devised new ways in which individual citizens could participate more actively in the governing process as a means of achieving their goals. Reformers also argued that alterations in government institutions themselves would make those bodies more responsive to citizens’ needs. One of the central focuses of Progressives was the use of state and federal police powers—the power of the government to legislate for the health, safety, and welfare of its citizens—to achieve the reforms they believed necessary. They pushed for broad interpretation of the commerce and taxing powers spelled out in the U.S. Constitution as a means by which Congress could effect change. They lobbied for state legislatures to use their police powers more broadly and creatively than ever before. The reformers were aided in their efforts by muckraking journalists who produced exposés of such topics as appalling conditions in slum neighborhoods, graft and corruption in city government, dangerous or potentially life-threatening practices in the processing of food and drug products, and the nature and extent of child labor in various parts of the country. In the period 1900–1914, Progressive reformers found support for their efforts from a variety of sources. Presidents Theodore Roosevelt and Woodrow Wilson, in their work to strengthen the role of the president in national affairs, contributed their support to a number of reforms. Roosevelt, for example, campaigned actively for the passage of the Meat Packing Act of 1906, as well as using his power to advance regulation of trusts and the railroad industry. This action was symptomatic of his stewardship theory of the presidency, which argued that any issue that concerned the health, safety, or welfare of the American people should also be a concern to the president. Woodrow Wilson emphasized the role of the president in proposing, and lobbying for passage of, reform legislation. His actions were crucial, for example, in achieving the passage of the Federal Reserve Act of 1913 and the Clayton Anti-Trust Act of 1914. Both state and federal legislatures responded to the demands of Progressive reformers by passing bills designed to address issues of concern. States, of necessity,

The White Court and the Period

Front Row, left to right: William R. Day, Joseph McKenna, Edward D. White, Oliver Wendell Holmes Jr., Willis Van Devanter. Back Row, left to right: Louis D. Brandeis, Mahlon Pitney, James McReynolds, John H. Clarke (Harris & Ewing, Collection of the Supreme Court of the United States)

focused primarily on issues that concerned their citizens directly, such as the regulation of local business and industry and the passage of laws to reform the structure of local government in order to outlaw political machines. They also passed numerous laws for the benefit of laborers, ranging from wage and hour laws to workmen’s compensation acts and legislation restricting or banning child labor. Congress during this period was persuaded to pass reform laws for businesses that came under the reach of interstate commerce. Examples include the Meat Packing Act of 1906, the Pure Food and Drug Act of 1906, and the Mann Act, outlawing the transport of women across state lines for immoral purposes, in 1910. Many of these laws eventually came under Supreme Court scrutiny as the result of lawsuits challenging their provisions. Most common were cases that argued that Congress had extended its action beyond what the commerce or taxing powers would allow. The Fuller Court, generally averse to creating too great a disruption to the status quo, endeavored to maintain a balance under the common law between protecting property rights and looking after the welfare of society. Although initially reluctant to

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consider novel uses of constitutional power, both the Fuller and White Courts eventually reached accommodations under which they were willing to allow some modification of the common law in order to permit the increased exercise of state and federal police powers. The course of this trend was not uniformly smooth, however, and occasional decisions, such as that in the child labor case Hammer v. Dagenhart (1918), indicated the struggle of the justices in trying to reconcile the principles of old with the necessities of the new. In an early case involving the reach of the Commerce Clause, the Fuller Court endorsed a broad interpretation. The case Champion v. Ames (1903) challenged the power of Congress to ban the shipment of lottery tickets in interstate commerce. Justice John Marshall Harlan, writing for the majority, argued that the power granted in the clause was comprehensive and could allow the prohibition as well as the regulation of commerce. He also took the position that the clause could be used to deal with a social issue not necessarily commercial in nature. A similar decision in McCray v. United States (1904) gave a broad interpretation to the taxing power. The case dealt with action by Congress to tax the oleomargarine industry. Opponents argued that the purpose of the tax was to destroy competition for the producers of butter, but the Court, through Justice White, refused to consider motive, arguing only that it was satisfied that Congress had the power to pass such a tax. Many other Progressive reform laws would be reviewed in the decade of the White Court.

Civil Rights Issues Although the Fuller Court was generally willing to respond to the needs of the times by upholding many pieces of Progressive reform legislation, it was much more conservative when confronted with challenges to Jim Crow policy. By the early 1890s, southern states had in place extensive policies designed to segregate blacks from whites and to severely restrict black exercise of political rights. Generally regarded as definitive of the Court’s position on these policies in the late 1800s and early 1900s is the Fuller Court’s ruling in Plessy v. Ferguson (1896). In a case challenging the use of segregated cars by railroads in Louisiana, the Court ruled that the policy of segregation, in and of itself, did not constitute discrimination. Although the phrase was not actually used in this decision, the term separate but equal came to be considered, at least in theory, the guideline by which segregation policy was to be judged. In subsequent cases the Court allowed restrictions on voting, such as the poll tax and literacy test (Williams v. Mississippi [1898]), and approved laws mandating segregated educational facilities (Berea College v. Kentucky [1908]). The decade of Chief Justice White’s leadership found the Court generally unwilling to make major strides in improving the protection of the civil rights of black citi-

The White Court and the Period

zens. The small advances that were recorded were usually based on traditional legal principles, such as freedom of contract for laborers or protection of property rights. Willingness to support challenges to political restrictions was more likely to be based on whether or not the policy in question was still in practice in the southern states where it was being challenged. Although civil rights activists found few supporters among the members of the U.S. Supreme Court during the period 1910–1921, the White Court in a few cases was willing to establish limits on segregation and to lay the groundwork for more substantive pro–civil rights decisions in the years ahead.

Government Reform during the Progressive Era In the period 1890–1910, the actions of the U.S. Supreme Court in ruling on challenges to progressive reforms reflected that body’s efforts to balance the needs of the modern business world with efforts by reformers to address problems confronted a rapidly changing society. Although some have described the Court during this period as conservative or opposed to change, the facts do not really bear this out, although the Court sometimes seemed reluctant to give an unqualified stamp of approval to the concept of the regulatory state. The Progressive Era saw an expansion in the exercise of authority by the executive branch. In the early 1900s, Theodore Roosevelt’s advocacy of the stewardship theory of the presidency, along with the influence of his forceful personality, had the effect of broadening and strengthening the powers of the office of the chief executive. Roosevelt argued that any issue having to do with the health, safety, or welfare of the American people should also be of concern to the president. He also believed that, as the chief executive, he could do anything that he was not specifically forbidden to do by the U.S. Constitution. President Woodrow Wilson built upon Roosevelt’s example by envisioning and implementing a larger role for the president in proposing and seeing enacted legislation that he felt essential. Speaking directly before Congress and using his considerable persuasive powers to lobby for specific bills, Wilson significantly increased the role of the president in setting the country’s legislative agenda. The role of the executive branch was also expanded through an increased demand in the late nineteenth century for federal regulation of business. The creation of the Interstate Commerce Commission, having some of the powers of each of the three branches but being housed in and supervised by the executive branch, introduced a new concept in regulation. The subsequent creation of a variety of federal agencies and commissions to regulate numerous specialized businesses had the combined effect of separating the regulatory work of the executive branch from constant supervision by politicians, as well as establishing the basis for what some have called the bureaucratic state. Numerous lawsuits challenged the constitutionality of agencies

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whose powers spanned the three branches of the federal government, but the U.S. Supreme Court endorsed the practice in a number of opinions between 1892 and 1911 (Field v. Clark [1892]; Buttfield v. Stranahan [1904]; and United States v. Grimaud [1911]), creating the doctrine of administrative discretion. Progressives believed that reform of the federal legislative branch could make the Congress more responsive to the needs of the citizenry. With that in mind, they campaigned for such reforms as direct election of senators, ultimately to be accomplished by ratification of the Seventeenth Amendment to the U.S. Constitution in 1913, and radical changes in the rules by which the House of Representatives conducted its business. Stripping away the dictatorial powers of the speaker of the House and of the dominant party had the effect of making it possible for controversial legislation to make it to the floor of the House for a vote. Creative use of the Commerce Clause and the taxing power granted to the Congress by the Constitution resulted in the development of a federal police power, making it possible for Congress to adopt measures that would accomplish progressive reforms that were much broader and more far reaching than those that could be implemented by individual states acting alone. The judiciary branch of the federal government underwent some structural change in the period 1890–1910 as Congress endeavored to implement revisions that would enable it to meet its responsibilities more effectively. The most important role of the federal courts, especially the U.S. Supreme Court, in these years, was to review and respond to challenges to progressive reform measures of many different types. The U.S. Supreme Court, of course, played the most significant role. Although the Court was frequently criticized for its actions as being a conservative roadblock in the way of reform, statistics indicate that, between 1890 and 1920, it approved an overwhelming majority of the new regulatory measures that it was asked to review. Court analysts, both at the time and since, have been particularly interested in the evolution of the use of judicial review during the Progressive period. A key tool for this practice in the late 1800s and early 1900s was the Due Process Clause of the Fourteenth Amendment, which provided the rationale for the creation of the doctrines of substantive due process and freedom of contract. The Court was sensitive to public opinion in reviewing reform measures, but was generally reluctant to move too rapidly toward approval of what some called the regulatory state. It was also concerned about respecting the distribution of authority between state and federal governments. The result was that, although it approved most regulatory measures as valid exercises of federal or state police power, the Court was criticized for not going further in support of efforts to address the social and economic ills of the day. The U.S. Supreme Court under the leadership of Justice Melville Fuller between 1890 and 1910 has been described as a homogeneous Court whose membership did not change much during the period. It was still devoted to the principles of limited government and the role of the judiciary that had been carved out by leaders in the nineteenth

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century. Its members were torn between loyalty to laws that had been created to govern the country in the period before rapid industrialization and big business held sway, and the Fuller Court only slowly came to see and support the necessity for a broadened role for federal and state governments that the times demanded. The Court whose leadership Edward Douglass White inherited in 1910 was still considered by some woefully out of step with the times, although others respected what they saw as its efforts to bridge the widening gap between conservative tradition and modern-day needs.

Assembling the White Court The White Court was the product of the efforts of six presidents, ranging from Hayes to Wilson. Three of the men on the Court when White became chief justice in 1910 had been appointed by presidents who served in the nineteenth century. Theodore Roosevelt had named two to their positions. It was President William Howard Taft, however, who played the largest role in choosing the men who served under White’s leadership. In addition to promoting White himself, Taft had the opportunity to fill five other vacancies. His successor, Woodrow Wilson, named only three men to the Court during his two terms in office. The eldest member of the White Court in 1910 was also the man who had served in that body the longest. John Marshall Harlan was a Kentucky slaveholder who changed his views during the end of the Civil War to become a supporter of the Union government.

Harlan The senior member of the Court that assembled as White took the center chair in January 1911 was Associate Justice John Marshall Harlan. Harlan had come to the Court in 1877 in part as a result of the events surrounding the Compromise of 1877. The vacancy that made his nomination possible was occasioned by the resignation of Justice David Davis of Illinois, some say because Davis wished to avoid casting the pivotal independent vote as a member of the commission appointed to resolve the dispute over the outcome of the presidential election of 1876. Harlan had also been involved in the resolution of the controversy, having been sent as a member of a delegation to resolve the controversy over disputed electoral votes in Louisiana. Previously, Harlan had headed the Kentucky delegation to the Republican convention of 1876, where he pledged Kentucky’s votes to Hayes at a key point in the voting. Perhaps as a reward for that service, and as a gesture of reconciliation toward the South, President Rutherford B. Hayes nominated the Kentuckian, who had earlier

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been a supporter of the Confederate war effort. In addition, Harlan was well qualified for the post. Harlan joined the Court in 1877 and served for thirty-four years. He became the senior associate justice upon the retirement of Justice Stephen J. Field in 1897. Opposition to the nomination from members of both political parties and from both the North and South managed to delay Senate approval of the nomination for approximately six weeks. Justice Harlan is probably best known for his views of the federal system. He believed in a strong Court, but at the same time was opposed to judicial activism. He believed the Court should monitor economic and social legislation at both the state and local level. Some of Harlan’s best-known opinions were actually dissents stemming from his view of the proper interpretation of the Fourteenth Amendment. He believed that the amendment should be used as a basis for Court review of state and local action in a broad range of areas, including protection of individual rights. He thought it important to consider the actual consequences of the Court’s rulings, but could not convince his colleagues of this. Harlan was honest, frank, and forthright, and often given to outspokenness from the bench. Harlan enjoys a greater reputation today than he did during his own time, particularly among those who view opinions such as his dissent in Plessy v. Ferguson (1896) as being a harbinger of the liberal interpretation that was to be applied to the Fourteenth Amendment in the later twentieth century. Justice Harlan holds the record for the most opinions ever produced by a member of the U.S. Supreme Court. All told, he authored a total of 1,161 opinions of the 14,000 decisions that were reached during his tenure on the Court. Of these, 745 were for the Court, 100 were concurrences, and 316 were dissents. Although he is best remembered for some of his outstanding dissents, Harlan actually agreed with the majority in 92 percent of the decisions handed down by the Court during his thirty-four years of service.

White Edward Douglass White initially joined the Court as associate justice in 1894. President Grover Cleveland had the opportunity to appoint someone to replace Justice Samuel Blatchford, who had died. Cleveland considered several other possible nominees before turning to White. His first two choices failed to be confirmed by the Senate, and the third person he offered the nomination to refused it. Finally, on January 15, 1894, Cleveland offered the nomination to White. A variety of factors influenced Cleveland’s choice. Some speculated at the time that Cleveland chose White in an effort to remove him from a struggle over tariff legislation in which the two were at odds. However, despite his quick confirmation, White delayed taking up the new position until the battle over the tariff was concluded.

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White’s primary objective in the fight for passage of the Wilson-Gorman Tariff Act was to secure protection for the sugar industry in his home state of Louisiana. Aside from the tariff issue, White and the president had generally been in agreement on major political questions, including the income tax and other financial policies. Cleveland could also cite White’s earlier legal and judicial experience in the state of Louisiana. White’s nomination aroused little reaction, although some voiced mild objections because he was a former Confederate. Others had hoped that Blatchford would be replaced with someone from his home state of New York. The Senate confirmed White’s nomination on the day it was received. He joined the Fuller Court a short time later and served sixteen years as associate justice. During his service as associate, White was a productive and sometimes influential member of the Court. Statistics show that he wrote 245 opinions in the decade between 1900 and 1910. He expressed strong opinions on such topics as the interpretation of the Sherman Anti-Trust Act and was particularly influential in the development of the doctrine of incorporation in the Insular Cases provoked by the U.S. acquisition of territory in the late 1800s. He became a good friend of President Taft, who often sought his advice on matters concerning Court personnel. When Chief Justice Melville Fuller died in 1910, President William Howard Taft deliberated for several months before choosing his successor. His selection of White was based on several considerations. He decided to break precedent by elevating a sitting justice because he wanted someone who would provide continuity and leadership. The recent series of turnovers among the members of the Court made this seem imperative. Of the possible choices, Justices White and Hughes seemed to be the frontrunners. President Taft sent his attorney general, George W. Wickersham, to poll the sitting justices for their opinions. They responded in favor of White, with some speaking openly against Hughes. Justice Oliver Wendell Holmes Jr., in particular, mentioned White’s “intellectual power.” Some historians have argued that another factor that weighed against Hughes in Taft’s mind was that Hughes would be likely to continue in the position too long to allow for the possibility of Taft’s eventually succeeding him. Taft also was drawn to White as a result of the relationship that had grown up between the two over the previous several years. White’s and Taft’s positions on political and economic issues tended to be similar, and Taft had grown to rely on White’s judgment concerning judicial matters. Taft particularly respected White’s opinions in United States v. Trans-Missouri Freight Association (1897) and in the Insular Cases. Further, in terms of politics, Taft had the hope that he could strengthen support for his reelection campaign in 1912 by nominating a man who was a Democrat, a Roman Catholic, and a former Confederate. The selection of White for chief justice drew generally wide support. Former president Roosevelt was an advocate. Members of the congressional leadership came to report to Taft that they preferred White to Hughes. Senator William E. Borah of

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Idaho termed White “one of the great minds of the Supreme Court’s history.” Elbert Baldwin also supported him in an article published in The Outlook. The president sent the nomination to the Senate on December 12, 1910. It was confirmed by acclamation on the same day, after only fifteen minutes in executive session. As the leader of the Supreme Court for ten and a half years, Chief Justice White did not bring the level of organization and efficiency that President Taft had hoped for, but he made significant contributions in leadership in other ways. One of his early goals was to limit dissents and to strive for unanimity as much as possible. This effort proved strongest in the first few years of his tenure and seemed to decrease in importance after 1916. He did not speed up the work of the Court as much as some would have liked. When dealing with cases on significant issues, White insisted on having the case heard by the whole Court, and sometimes delayed the resolution by calling for rearguments, which was seen by some as unnecessary procrastination. White also took an increasingly dim view of extracurricular work by the justices as his tenure progressed. Although he himself had helped to arbitrate a boundary dispute between Costa Rica and Panama in 1910, and he had approved outside service by Lamar in 1913, he rejected Brandeis’s request in 1916 to be allowed to serve on a commission to resolve difficult relations between the United States and Mexico. Some have speculated that Hughes’s departure to run for president had soured White’s attitude toward service outside the ordinary responsibilities of the Court. In terms of his judicial philosophy, White seemed to experience an evolution in his thinking on some constitutional questions during his tenure as chief justice. During his early years on the Court, he was much more likely to look upon with approval the expansion of the roles of the federal and state governments as reformers than he would later. Between 1914 and 1921 he became, perhaps through the influence of some of the conservatives who had recently joined the Court, much less likely to approve reform legislation than he had been before. On civil rights issues, however, White leaned toward a more liberal stance during his years as the chief. From 1894 to 1910 he voted against black rights in every such case coming before the Court. After 1910, however, he consistently voted in favor of black rights. Overall, however, White’s most important contributions came in the area of statutory interpretation.

McKenna The second member of the White Court in seniority was Joseph McKenna, who was President William McKinley’s sole appointee. McKenna was named to the Court to replace Stephen J. Field, who had resigned in October 1897. Field had been the first justice named to represent the westernmost part of the United States, and McKenna, a Californian, could follow in that tradition. McKenna and McKinley had become

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friends when both served in the U.S. House of Representatives. Upon becoming president, McKinley persuaded McKenna to accept appointment as his attorney general, suggesting that he would be moved up to the U.S. Supreme Court when Field retired. McKinley’s decision to nominate McKenna was based on more than the two men’s friendship. McKenna had been a consistent supporter of Republican political stances. The fact that he was a Catholic also influenced McKinley’s decision, since the president had been accused of supporting the American Protective Association, an anti-Catholic organization active at the time. McKenna’s nomination aroused opposition on a number of fronts, primarily resulting from his longtime association with railroad magnate Leland Stanford. It had been on Stanford’s urging, for example, that President Benjamin Harrison had named McKenna to the Court of Appeals for the Ninth Circuit. Although McKenna had not appeared to do Stanford’s bidding during his twelve years on the appeals court, the association still influenced public opinion. Stanford’s rivals in the railroad industry in California managed to delay McKenna’s confirmation for several weeks through strenuous lobbying with members of Congress. Opposition also arose from some who questioned McKenna’s legal abilities. They pointed out that his legal training was minimal, his performance on the appeals court was lackluster, and his work habits were sloppy and disorganized. After several weeks of such lobbying, the Senate voted unanimously by voice vote on January 21, 1898, to confirm McKenna. He was sworn in on January 26, 1898, becoming the third Roman Catholic to serve on the Court. McKenna served on the Court for twenty-seven years, reflecting a generally conservative position on economic issues. His opinions were guided by practicality and openness to the development of federal power in relation to the states. He developed a clear and recognizable style in his writing that was easily read and understood. Altogether, he produced 633 opinions during his time on the Court. During the latter years of his service he dissented increasingly against majority opinions written by Holmes, although the opinions reflect no discernible philosophical consistency.

Holmes Oliver Wendell Holmes Jr. was appointed to the U.S. Supreme Court by President Theodore Roosevelt to replace Justice Horace Gray. Attention to geographical balance on the Court was still important at the time, and the vacancy was regarded as being the “Massachusetts seat.” At least one historian says that President McKinley had made plans to replace Gray with Alfred Hemenway, a Boston attorney, but Gray had not yet resigned at the time of McKinley’s death. This was Roosevelt’s first opportunity to make an appointment, and he hoped to select someone who would reflect his own Progressive priorities. The nomination was confirmed in December 1902.

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At the time of his appointment, Holmes had already amassed a solid record as a justice on the Massachusetts Supreme Judicial Court. He had served as a member of that body for twenty years, including three as chief justice. Roosevelt was convinced of Holmes’s legal and intellectual qualifications, but wanted to know where he stood philosophically and politically. He wrote to Senator Henry Cabot Lodge of Massachusetts concerning these matters, and Lodge reassured Roosevelt of the wisdom of the appointment. Roosevelt thereupon announced the nomination, which the Senate confirmed two days later. Holmes was sworn in on December 8, 1902. Despite his research into Holmes’s judicial record, Roosevelt was destined to be disappointed in his first appointee. Holmes was not a consistent supporter of progressive reforms. It was his position that the job of the Court was not to consider the wisdom of laws passed by Congress, but to rule only on their constitutionality. Holmes believed that the Court should take a pragmatic approach to evaluating the contending arguments in a case. He was strongly committed to the democratic process. His expertise in the common law, along with his practical experience, contributed to the development of a coherent philosophy in his many decisions. Holmes served on the Court for thirty years, under four different chief justices. He wrote a total of 873 opinions, of which only 72 were dissents, a moderate figure in comparison to many colleagues. Although he wrote only a small number of dissents, these were some of his strongest and most cogently argued opinions. It is for some of these opinions, such as that in Lochner v. New York (1905), that Holmes is perhaps best remembered.

Day The appointment of Justice William Rufus Day to the Court resulted from the efforts of two presidents, William McKinley and Theodore Roosevelt. Though Day was actually appointed by Roosevelt, the decision came in part because of Roosevelt’s reading of McKinley’s intentions before his death. Day was a friend and personal confidante of McKinley’s for many years. When McKinley became president, he named Day assistant secretary of state, later appointing him to head the State Department, which he did for a short time before joining the delegation to negotiate the treaty that ended the Spanish-American War. In February 1899, McKinley nominated Day to a seat on the Sixth Circuit Court of Appeals, where he served with future justices William Howard Taft and Horace Lurton. President Theodore Roosevelt had his second opportunity to make an appointment to the U.S. Supreme Court when Justice George Shiras Jr. retired. Roosevelt consulted with a number of advisers about the appointment, including William Howard Taft, Mark Hanna, Elihu Root, and Nelson Aldrich. Roosevelt initially leaned toward

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Taft, but could not persuade him to give up his post as governor-general of the Philippines. Eventually Roosevelt settled on Day, both because he believed that McKinley had intended to promote him had he lived, and because Roosevelt thought that the nomination of Day might bolster his own support among Ohioans in the Republican Party. Roosevelt announced the nomination on February 19, 1903, beginning a speech to the McKinley Memorial Association dinner in Canton, Ohio, “Mr. Toastmaster, Mr. Justice Day” (Bickel and Schmidt 1984, 73). Day was confirmed quickly and without controversy, taking his seat on the Court on March 2, 1903. Day served on the Court for nineteen years, eventually retiring in October 1922. He supported Roosevelt’s trust-busting efforts by voting with the majority in the Northern Securities Case in 1904, but gradually diverged from the president’s agenda, voting against such major progressive initiatives as those designed to improve wages and hours of laborers. In all, Day authored 457 opinions, only 19 of which were dissents.

Lurton Horace Harmon Lurton joined the Supreme Court in 1910, becoming the first man to be nominated to the Court by President William Howard Taft. Lurton, a Democrat from Tennessee, had been appointed to the Sixth Circuit Court of Appeals in 1893, where he had served as a colleague of Taft, who was then presiding judge of that court. In 1906, Taft, who was then secretary of war, and Justice William R. Day had encouraged President Theodore Roosevelt to name Lurton to the U.S. Supreme Court to replace Justice Henry Brown, but Roosevelt had demurred upon learning from Senator Henry Cabot Lodge that Lurton had consistently opposed the government in cases brought under the Interstate Commerce Act. When Taft’s first opportunity to make an appointment arose in 1909, he was determined to appoint his old friend, in spite of concerns about his age (Lurton was then sixty-five). Taft discussed his decision with members of his cabinet and had Attorney General George W. Wickersham consult members of the Supreme Court before making his decision public. Taft’s first secretary of war, Jacob M. Dickinson, particularly supported the nomination, which was announced on December 13, 1909. Despite some opposition from labor unions because of his ruling on a workmen’s compensation law, Lurton was confirmed quickly, and sworn in on January 3, 1910. Partly because of his age, Lurton’s time on the court was short, amounting to just four and one-half years. During that time, he wrote ninety-seven opinions, none of which were of major significance. When he dissented, it was usually along with several of his brethren. He was a supporter of state’s rights and generally reluctant to interpret the power of Congress broadly to limit those rights.

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Hughes Charles Evans Hughes, reform governor of New York, became Taft’s second appointment, named to replace Justice David Brewer, who died in March 1910. There is considerable indication that politics played a role in Taft’s decision to appoint Hughes. Hughes was widely considered a rising star in the Republican Party, and Taft at least hoped for Hughes’s support in the election of 1912, if he did not actually appoint him to prevent his becoming a rival for the presidential nomination. The fact that Hughes was relatively liberal in his politics apparently did not deter Taft from making the appointment. Taft’s letter offering the nomination is intriguing because, in it, the president initially dangles before Hughes the possibility that Taft might promote Hughes to chief justice should Melville Fuller resign, but then in a postscript takes back the suggestion. President Taft announced the nomination on April 25, 1910, and it was generally favorably received. The only significant opposition came from William Jennings Bryan, who professed to be concerned about Hughes’s close relations with bankers and numerous business interests. In spite of that criticism, however, the Senate confirmed the nomination unanimously by voice vote on May 2, 1910, in a five-minute executive session. Hughes served five years and eight months as associate justice, resigning on June 10, 1916, to pursue the Republican nomination for president. During that period of service, Hughes produced 151 opinions, more than any of the men who served with him during that time. His opinions were carefully drafted and clearly written. He most often spoke for a unanimous Court. There were only nine written dissents to his majority opinions, and he himself produced only thirty-two written dissents. Hughes’s opinions reflected his liberal progressive stance and his support for the protection of economic rights. He was, however, also a strong supporter of federal regulatory measures. His experience in the world of practical politics also led him to support protective labor legislation.

Van Devanter Willis Van Devanter was appointed by President Taft to replace Justice White, who was promoted to chief justice. Van Devanter, a native of Indiana, had spent most of his adult life in Wyoming, where he had played a prominent role in the development of the territory and its admission to statehood. He had been appointed to the Court of Appeals for the Eighth Circuit by Roosevelt in 1903 and had been supported for years by Wyoming Republicans as a candidate for the high court. Taft considered several possible candidates, including William C. Hook of Kansas (also a judge for the Eighth

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Circuit), Senator George Sutherland of Utah, and William D. McHugh of Omaha before settling on Van Devanter. Taft was concerned about Van Devanter’s productivity and tasked Secretary of Labor and Commerce Charles Nagel to seek an explanation for the sparsity of Van Devanter’s opinions, as well as charges that he did not participate as much as his colleagues in the work of the appeals court. Both Nagel and Senator Francis E. Warren of Wyoming, Van Devanter’s strong supporter, provided Taft with letters from Van Devanter defending his record. After consulting his cabinet, which favored Van Devanter, Taft made the nomination public on December 12, 1910. The Senate confirmed Van Devanter’s nomination, along with that of Joseph Rucker Lamar, on December 15, 1910. Van Devanter’s commission was dated one day before Lamar’s, which made him senior to his fellow appointee. Van Devanter served on the court for nearly twenty-seven years, earning a record as one of its most conservative justices and being identified toward the end of his tenure as one of the Four Horsemen who struck down key New Deal legislation. Although Van Devanter was respected by his colleagues for his contributions in conference and for his expertise in such areas as public land claims, water rights, and Indian questions, he produced fewer written opinions than any of his colleagues. He suffered from some sort of writer’s block that hindered his ability to draft opinions himself, but his colleagues acknowledged the value of his contributions to their efforts. Upon Taft’s appointment to the chief justiceship, he and Van Devanter became close associates in spite of Van Devanter’s strong conservatism, and Taft frequently called upon Van Devanter for assistance with the administrative duties of the Court, including drafting and lobbying for the Judiciary Act of 1925.

Lamar The elevation of Edward Douglass White to the position of chief justice left another vacancy, which President Taft now had the opportunity to fill. For this position he chose another southerner, Joseph Rucker Lamar of Augusta, Georgia. A number of factors apparently guided Taft in making this decision. Taft had initially met Lamar when he was vacationing in Augusta, Georgia, after the 1908 election campaign. The two men became friends, sharing an interest in golf as well as in political matters. Some historians have charged that Taft picked Lamar because he had run out of “firstrate” candidates, but there were more substantive reasons. Lamar was a southern Democrat whose choice might help Taft in future political matters. He was conservative in judicial matters, which pleased Taft. The two men saw eye to eye on the issue of the protective tariff, an issue of importance to Taft. Taft initially considered Lamar in the fall of 1910 for appointment to the newly created Commerce Court. He was encouraged in this idea by members of the Georgia

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congressional delegation, headed by Senator A. O. Bacon. When the vacancy on the Supreme Court developed, however, Lamar’s candidacy was advocated by both Taft’s military aide, Archie Butt, and by his attorney general, George W. Wickersham. The nomination also had the support of former associate justice Henry Billings Brown, who had earlier suggested that Lamar would be a good replacement for Justice Moody, when he resigned. The president sent the nomination of Lamar to the Senate on December 12, 1910, where it was confirmed without dissent. The only complaint heard was that Lamar was “too obscure.” Justice Lamar served on the Court slightly less than five years, producing a largely unremarkable record. He was regarded as being a man of integrity and modesty, but not of intellectual brilliance. He almost always voted with the majority. He wrote a few noteworthy opinions that had the effect of expanding executive discretion in some specific areas.

Pitney Early in 1912 President Taft was faced with the responsibility of nominating a replacement for Justice John Marshall Harlan, who had died a few months earlier. Taft considered several prominent individuals for the position. He offered the spot to Secretary of State Philander C. Knox, who declined. He next floated the name of Judge William Hook of Kansas, who aroused opposition because of his stand on race issues. The suggestion of Secretary of Commerce and Labor Charles Nagel also aroused unfavorable responses because of his age and lack of judicial experience, as well as opposition from labor unions. For Taft’s eventual nominee, Judge Mahlon Pitney of New Jersey, there was no organized campaign of support, but there were several reasons why Taft found him an apt choice. Pitney had ample political and judicial experience, reasons why Taft had actually considered him for a seat on the Commerce Court in 1910. Pitney and Taft were of like mind on various judicial issues, a factor that may have become apparent when Taft and Pitney had been seated together during a Lincoln’s birthday gala in February 1912. In addition, the appointment of a man from New Jersey could be a good political move. There had been no justice from that state in nearly four decades, and the choice might help strengthen support in New Jersey for Taft’s reelection bid in 1912. Taft announced his choice for the seat on February 19, 1912. The choice of Pitney aroused support on a number of fronts. Conservatives in general were pleased, but so also was the Progressive Democratic governor of New Jersey, Woodrow Wilson. Perhaps as a result of one of Pitney’s earlier decisions in a labor dispute, he attracted the support of the National Association of Manufacturers

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and of the secretary of the Iron and Steel Institute. The later votes of confidence proved to be a mixed blessing, however, when the nomination went for consideration by the Senate. The debate over Pitney’s nomination was the only instance of controversy over Taft’s nominations of Supreme Court justices. The Senate Judiciary Committee brought in a favorable recommendation of Pitney on March 8, 1912, but there then ensued three days of debate on the Senate floor before the vote was taken. Pitney’s opponents accused him of being more sympathetic to property than to human rights and of being an opponent to organized labor. They cited in particular his affirmation of an injunction against a union in Jones Glass Company v. Glass Bottle Blowers’ Association (1908). Other liberals, including Senator Albert Cummins of Iowa, questioned Pitney’s broader political philosophy. The nomination was eventually confirmed by a vote of 50–26 on March 14, 1912, and Pitney took his seat on March 18, 1912. Pitney served on the Court for ten years, ending his term during the early years of Taft’s chief justiceship. He was a strong and consistent advocate of the powers and purposes of the Interstate Commerce Act, as well as of antitrust legislation. He was also a supporter of greater leeway for states to regulate businesses. He also voted in support of local government powers to establish rent controls during World War I. As the years passed, Pitney’s opinions reflected increasing conservatism and continued opposition to judicial support for the rights of organized labor. Historians have said that he did not live up to the hopes that had prompted Taft to nominate him. It has been said that, as chief justice, Taft considered Pitney such a weak colleague that he refused to assign him opinions to write.

McReynolds James C. McReynolds was President Wilson’s first nominee to the U.S. Supreme Court. The opportunity for the appointment rose with the death of Justice Horace H. Lurton on July 12, 1914. McReynolds, who came from Tennessee, Lurton’s home state, seemed to be a perfect match in terms of geography and political background. There were, however, a number of other factors that apparently influenced Wilson’s choice. McReynolds had been a strong supporter of Wilson’s presidential candidacy in 1912 and had been rewarded with appointment as attorney general in Wilson’s cabinet. He was seemingly compatible with Wilson’s views on a number of issues, including government regulation of trusts, having risen to national prominence as counsel for the government in the Standard Oil and American Tobacco trust-busting cases. There was also speculation, then and later, however, that Wilson appointed McReynolds to the Court to get him out of the cabinet, where he had quickly demonstrated his obstinacy

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and inability (or unwillingness) to get along with the other members. He had also created problems as attorney general by attempting to force lower federal court judges to retire when they reached the age of seventy. McReynolds’s nomination had both supporters and opponents. Wilson’s adviser Colonel Edward House advocated his appointment, as did many Democrats. He was respected for his knowledge of antitrust laws. Opponents of the nomination expressed concern that McReynolds had no prior judicial experience and that he was too much of a radical in his opposition to big business combinations. Senator George W. Norris of Nebraska spoke against him during the Senate debates. In spite of the division of opinion, there was no organized campaign against the appointment, and McReynolds was confirmed by a vote of 44 to 6 ten days after Wilson announced the nomination. He was sworn in on September 5, 1914, and took his seat at the beginning of the term in October. McReynolds served on the Court for twenty-seven years. Some have described him as a failure, and others as possibly the most difficult man ever to serve on the Court. He grew increasingly conservative as time passed, becoming eventually one of the Four Horsemen who made a concerted effort to dismantle many of Franklin D. Roosevelt’s New Deal programs. McReynolds did not side with Wilson on progressive issues that came before the Court. He proved to be a staunch opponent of any expansion of government regulatory activity and, in terms of his votes, a strong advocate of laissez-faire capitalism. McReynolds was also personally difficult. He had strong dislikes of smoking, women lawyers, and Jews. He turned against fellow justices Pitney and Clarke and was so rude to the latter that some believe that his actions contributed to Clarke’s early departure from the Court. McReynolds’s intense anti-Semitism made it impossible for him to have good working relationships, or even in some cases to be on speaking terms, with Justices Brandeis, Cardozo, and Frankfurter.

Brandeis Louis D. Brandeis was nominated to the Court in 1916 to succeed Justice Joseph Rucker Lamar. Brandeis and Wilson had had a close relationship for some years. In the election campaign of 1912, Brandeis had advised Wilson on social and economic issues. They had become close friends, and Wilson wanted Brandeis to be a part of his administration. Wilson apparently considered Brandeis early on for solicitor general, then for attorney general, and eventually for secretary of commerce, encountering strong opposition with each proposal. In spite of these setbacks, Brandeis continued to be a valued adviser to Wilson during the early years of his administration, offering assistance with the drafting of such key pieces of legislation as the Federal Reserve Act of 1913 and the Clayton Anti-Trust Act of 1914.

The White Court and the Period

Wilson announced the nomination of Brandeis on January 28, 1916. Wilson biographer Arthur Link described the action as a statement of political principle and assertion of ideological leadership of the Democratic Party, whereas others have suggested that it was designed to win Wilson support of Progressive Democrats in his reelection campaign in 1916. Whatever Wilson’s motivation, the nomination aroused strong controversy that would play out most visibly in the Senate over the next several months. Both supporters and opponents of Brandeis’s nomination responded strongly. Robert M. LaFollette, the only senator Wilson consulted in advance, and other Progressives applauded loudly. Attorney General Thomas W. Gregory, Admiral Cary T. Grayson, Wilson friend and physician, and labor advocate Norman Hapgood also supported the nomination. Opposition came from many quarters. Wilson’s adviser Colonel Edward House, former secretary of state Elihu Root, and former president William Howard Taft were only some of the most famous opponents. Many influential figures in the U.S. business and industrial communities responded with outrage, as did elements of the legal community. The fight over Brandeis’s confirmation was one of the bitterest and most prolonged in the history of the Court. Shortly after the nomination was made public in January 1916, the Senate Judiciary Committee named a five-man subcommittee, composed of three Democrats and two Republicans, to investigate opposition to Brandeis. Hearings went on for the better part of two months before the committee reported, on April 3, 1916, a vote along party lines recommending confirmation. Many of the charges against Brandeis were groundless, but were spawned by the concerns that he was a radical, by opposition to his social and economic views, by distaste for his devotion to the tenets of sociological jurisprudence, and, not least, by elements of antiSemitism. Some also disliked Brandeis because of his standoffishness and his unswerving commitment to high moral principles. Among the specific efforts to defeat the nomination was a letter signed by six past presidents of the American Bar Association stating that Brandeis was “not a fit person to be a member of the Supreme Court of the United States.” Taft’s attorney general George Wickersham, who had tangled with Brandeis during the investigation of the Ballinger affair, solicited the letter. Former President Taft fumed that the nomination was “one of the deepest wounds I have had as an American and a lover of the Constitution and a believer in progressive conservatism.” He charged that Brandeis was a socialist, a hypocrite, and utterly unscrupulous in pursuit of his goals. He also argued that Brandeis’s passionate advocacy of certain causes meant he lacked the requisite impartiality required of a Supreme Court justice. Brandeis was criticized specifically by some because of his dealings with the United Shoe Machinery Company, due to his having at one time been the company’s legal counsel, a stockholder, and director, and then later, after having resigned, participating in the antitrust prosecution of the company. Others who opposed the nomination included Moorfield Storey (head of the

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National Association for the Advancement of Colored People [NAACP]), the Wall Street Journal, The Nation, and the New York Times. The Senate Judiciary Committee, having received the recommendation of its subcommittee, deliberated for nearly two months before voting on the nomination. It received during that time a letter from President Wilson in which he wrote, “I named Mr. Brandeis as a member of that great tribunal only because I knew him to be singularly qualified by learning, by gifts, and by character for the position.” He went on to allege that people opposed Brandeis because of his refusal to compromise his high principles in order to promote the selfish interests of a few. The committee voted 10 to 8, along strict party lines, for confirmation on May 24, 1916. The Senate followed suit, voting 47 to 22 in favor of confirmation on June 1, 1916. Brandeis took his seat on June 5, 1916.

Clarke In the summer of 1916, President Wilson had another opportunity to make an appointment to the Supreme Court when Justice Charles Evans Hughes resigned to run as the Republican candidate for president. John Hessin Clarke, a newspaper publisher in Ohio, had become a strong Democratic Progressive in the early 1900s. He was an advocate of such progressive reforms as direct election of senators, home rule for cities, and woman suffrage. He was a good friend of Wilson’s secretary of war, Newton D. Baker, who persuaded Wilson to appoint Clarke as a federal judge for the Northern District in Ohio in 1914. When the Hughes vacancy occurred, Baker urged Wilson to promote Clarke to fill the position. Wilson announced Clarke’s nomination on July 14, 1916. The choice was supported not only by Baker but also by the newly seated Justice Brandeis. Wilson is reported to have had only one concern about Clarke’s suitability for the seat. He sent Baker to interview Clarke on his views on antitrust matters, which until then were little known. Baker returned to assure Wilson that Clarke held the appropriate progressive point of view on this topic. The nomination aroused relatively little opposition, although former president William Howard Taft, who feared that Clarke’s progressive views would contribute to an unorthodox interpretation of the Constitution, criticized it. A number of newspapers compared Clarke to Brandeis. Much to Wilson’s relief, the Senate confirmation of Clarke was swift and simple, particularly when compared with the ordeal suffered by Brandeis. Clarke was confirmed by voice vote a mere ten days after his nomination and was sworn in on August 1, 1916. Clarke adhered consistently to his Progressive principles while serving on the Court. He supported reform efforts dealing with social and economic issues and was generally a supporter of liberal interpretation of civil liberties. Clarke voted in favor of

The White Court and the Period

improved conditions for workers, including workmen’s compensation and limits on the use of injunctions against union activities. In addition, he was more likely than some of his brethren to allow great latitude to states for effecting such reforms. Clarke’s service on the Court was seriously affected by his relationship with Justice James McReynolds. Although McReynolds urged Clarke’s appointment to the U.S. Supreme Court, he subsequently became embittered by Clarke’s failure to follow his direction in deciding cases. He also was angered by the fact that Clarke was often to be found siding in votes with Justice Louis D. Brandeis, whom McReynolds disliked intensely. Clarke resigned from the Court after only six years of service, at least in part because of this ill treatment, although officially he announced that he intended to pursue efforts aimed at projects for world peace.

Aggregate Profile When President William Howard Taft nominated Edward Douglass White to be chief justice in 1910, he made the choice with a number of concerns about the Court in mind. He broke precedent by elevating a sitting justice in part because he was concerned about the everyday administration and productivity of the Court. He wanted a chief justice who was experienced in the operations of the Court, in part because of the high rate of turnover among justices that had occurred in the past few years. His close relationship with White in recent years also led him to believe that White would be able to lead the Court in the direction that Taft felt it needed to go. White was able to meet some, but not all, of Taft’s expectations during his ten years as chief justice. White’s primary goals at the beginning of his tenure were to increase the Court’s productivity and to reduce the backlog of cases that had accumulated during the preceding terms. Statistics from the 1913 term provide evidence of his success in this area during the first two years of his leadership. From 1910 to 1913, the Court increased the number of opinions produced by 60 percent, and reduced the percentage of cases with dissents to as low as 2 percent (see Table 1.1). The emphasis on increased productivity prompted justices to produce shorter, more concise opinions. White also encouraged the brethren to avoid dealing with substantive issues in cases when the issue at hand could be dealt with on procedural grounds alone. The passage of a series of laws aimed at streamlining the handling of cases also served to reduce the overall workload of the U.S. Supreme Court. Acts passed in 1914, 1915, and 1916 gave the Court discretion over what cases it would hear on appeal from state courts. They also eliminated Supreme Court review of cases concerning bankruptcy, trademark, and Federal Employers’ Liability Act issues. These early acts also laid the groundwork for the extension of the Court’s discretionary powers by the pas-

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Table 1.1 Level of Agreement on the White Court

Term

Number

1910 1911 1912 1913 1914 1915 1916 1917 1918 1919 1920

168 230 271 285 257 235 207 208 213 168 217

Concur w/o Concur Opinion 1 0 1 3 1 1 1 1 0 3 7

4 3 12 4 8 3 5 5 14 15 28

Dissent w/o Dissent Opinion 13 9 10 5 16 5 16 13 14 23 16

21 18 38 38 53 36 90 55 51 96 71

Other

Per Curiam

0 8 18 9 15 10 6 8 18 8 2

23 45 38 54 50 69 76 77 83 75 62

Source: Adapted from A. P. Blaustein and R. M. Mersky, The First One Hundred Justices: Statistical Studies on the Supreme Court of the United States, New York: Archon Books, 1978, pp. 139–140.

sage of the Judiciary Act of 1925, which replaced mandatory appeals with petitions for writs of certiorari. Despite the promising beginning under White’s leadership, however, the Court did not maintain this level of productivity throughout his time as chief justice. A number of factors affected the Court’s output and levels of agreements as the decade progressed. Some historians have criticized White’s tendency to hold on to important cases and to schedule rearguments until such cases could be heard and decided by a full Court. Turnover in Court personnel during the decade further exacerbated delays caused by this policy. The replacement of former justices with new appointees necessitated reargument of some cases, or delays in the production of opinions by those already there. The Court’s productivity was affected by the output and writing style of the various justices (see Table 1.2). Although some, Holmes in particular, prided themselves on the speed with which they completed assignments, others were prone to delay. Van Devanter, in particular, suffered from a severe writer’s block, and White’s labored writing style meant that he often consumed considerable time in producing an opinion. The second half of the decade witnessed a number of other factors contributing to the Court’s productivity. After 1916, the number of groundbreaking cases raising controversy increased. These included issues related to the expansion of presidential powers resulting from the wartime emergency, as well as the cases raising civil liberties issues stemming from the Wilson administration’s crackdown on public expres-

The White Court and the Period

Table 1.2 Productivity of the Justices on the White Court*

Justice Brandeis Clarke Day Harlan Holmes Hughes Lamar Lurton McKenna McReynolds Pitney Van Devanter White

Instances of Participation

Instances of the Court

Dissenting Opinions

Concurring Opinions

3,874 1,200 4,160 7,927 5,767 3,155 1,485 1,211 5,580 4,789 2,455 5,220 5,807

455 128 430 737 873 395 112 96 646 488 249 360 680

65 22 22 119 72 17 2 2 30 65 19 4 49

10 2 2 17 14 2 0 0 4 7 5 1 11

*These figures represent the entire careers of the individual justices, not just the years of service on the White Court. Source: Lee Epstein, Jeffrey A. Segal, Harold J. Spaeth, and Thomas Walker. The Supreme Court Compendium: Data, Decisions, and Developments, Washington, DC: Congressional Quarterly Press, 1994, pp. 514–516.

sion of opposition to the war effort. The addition of new personalities to the bench, in particular Louis D. Brandeis, who joined the Court in 1916, meant the development of new voting blocs among the justices, as well as an increase in the production of dissents in controversial cases. In addition, White’s own work and his level of leadership became less efficient as he struggled with health problems toward the end of the decade. One of White’s stated goals when he took on the position of chief justice was to reduce what he referred to as “this dissenting business” (Pratt 1999, 185). In the first several years he achieved considerable success in this area, as indicated by the figures in Table 1.1. In addition to reducing the number of his own dissents, both written and unwritten, White, through his leadership in conference, endeavored to work out disagreements before cases reached the opinion-writing stage. After 1916, however, he was less successful in achieving this goal. Increasingly, voting blocs developed that reflected opposing views of constitutional interpretation. Justice McReynolds led a group of colleagues who insisted on a conservative, traditional view of the Constitution, one opposed to evolving interpretation to accommodate social reform. He was joined in many such cases by Justices Van Devanter and McKenna. Taking the opposing position were justices following the lead of Brandeis and Holmes, who were will-

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Table 1.3 Cases Decided by a One-Vote Margin Year

Total Cases

One-vote Margin

Percentage

1910 1911 1912 1913 1914 1915 1916 1917 1918 1919 1920

168 230 271 285 257 235 207 208 213 168 217

2 3 5 1 6 0 8 4 9 10 6

.012 .013 .018 .004 .023 .000 .039 .019 .042 .060 .028

Source: Lee Epstein, Jeffrey A. Segal, Harold J. Spaeth, and Thomas Walker. The Supreme Court Compendium: Data, Decisions, and Developments, Washington, DC: Congressional Quarterly Press, 1994, p. 161.

ing to support constitutional interpretation to allow novel uses of governmental power to address issues raised by the changing times. This attitude was particularly evident in cases dealing with restrictions on outspoken opposition to the war effort. The result was an increasing number of cases decided by a narrow margin (see Table 1.3).

Comparing the Fuller and White Courts Although at least one historian has produced a history of the work of the U.S. Supreme Court spanning the period that saw the leadership of these two justices, the argument can be made that significant differences existed both in the leadership of the two men and in the output of the Court under their leadership. The evolving and changing characteristics of social, political, and economic issues had much to do with producing these differences, as did the times in which the chief justices and their brethren worked. The Fuller Court can be described as having been more stable than the White Court, both in the low rate of turnover among members and in the lack of dramatic changes in its interpretation of the Constitution and of federal laws. The personnel of the Fuller Court did not change significantly until the last few years of his term, a factor that no doubt contributed to the consistency of its interpretations. The Fuller Court was generally more conservative than that under White, placing emphasis on the concepts of limited government and judicial supremacy. The White Court, while by no

The White Court and the Period

means liberal, was more willing to accept an expanded interpretation of the Constitution to allow for modernization and changing times. Evidence of the efforts of the White Court to accommodate the changing times is the fact that the White Court approved a large percentage of regulatory measures that expanded government power. Issues of federalism confronted the Court during both periods, stemming in particular from efforts to regulate business and to put in place progressive social and economic reforms. Of concern was the importance of maintaining the proper constitutional relationship between the powers of federal and state governments, while at the same time giving appropriate consideration to the development of the police powers at both levels. The White Court built upon the Fuller Court’s precedents in expanding the interpretation of the commerce and taxing powers as bases for regulatory measures. Progress was not straightforward and unswerving, however, as indicated by rulings in such cases as Hammer v. Dagenhart (1918). Both the Fuller and the White Courts dealt with numerous issues related to changes in U.S. foreign policy as the country became a world power. The Fuller Court was faced with constitutional issues stemming from the acquisition of foreign territory in the late 1800s, particularly as a result of the Spanish-American War. In the Insular Cases the Court considered the applicability of constitutional protections to the inhabitants of these newly acquired possessions, eventually developing the doctrine of incorporation to provide guidelines by which Congress might determine each territory’s constitutional status. The foreign policy issues that the White Court confronted were much more complex, arising as they did from U.S. involvement in World War I. The White Court dealt, in particular, with challenges to the efforts of the Wilson administration to maintain a position of neutrality during the early part of the war, in spite of the efforts of belligerents to draw it into the conflict. In sum, the two Courts held much in common in the types of issues they were called upon to address, and in the views of the Constitution on which they based their rulings. The White Court, however, building upon the work of the Fuller Court, advanced further in bringing the work of the institution and its views of the Constitution into line with the requirements of a rapidly modernizing society.

References and Further Reading Abraham, Henry J. 1999. Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Clinton. New York: Rowman and Littlefield. Bickel, Alexander M., and Benno C. Schmidt, Jr. 1984. History of the Supreme Court of the United States, Volume IX: The Judiciary and Responsible Government, 1910–1921. New York: Macmillan.

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Blaustein, A. P., and R. M. Mersky. 1978. The First One Hundred Justices: Statistical Studies on the Supreme Court of the United States. Hamden, CT: Archon Books. Epstein, Lee, Jeffrey A. Segal, Harold J. Spaeth, and Thomas G. Walker. 1996. The Supreme Court Compendium: Data, Decisions, and Developments. 2d ed. Washington, DC: Congressional Quarterly. Hall, Kermit L., ed. 1992. The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press. Kelly, Alfred H., Winifred A. Harbison, and Herman Belz. 1991. The American Constitution: Its Origins and Development. 7th ed. New York: W. W. Norton. Pratt, Walter F., Jr. 1999. The Supreme Court under Edward Douglass White, 1910–1921. Columbia: University of South Carolina Press. Semonche, John E. 1978. Charting the Future: The Supreme Court Responds to a Changing Society, 1890–1920. Westport, CT: Greenwood Press.

2 The Justices hirteen men served on the U.S. Supreme Court during the eleven years Chief Justice Edward Douglass White presided. They ranged from John Marshall Harlan, who had been appointed in 1877, to John Hessin Clarke, who joined the Court in the fall of 1916. Five of the thirteen sat for at least part of each of the eleven terms White was chief justice. They were White, Joseph McKenna, Oliver Wendell Holmes Jr., William R. Day, and Willis Van Devanter. Six other justices—Charles Evans Hughes, Joseph R. Lamar, Mahlon Pitney, James C. McReynolds, Louis D. Brandeis, and John H. Clarke—served during five or more terms of the White Court. Only two, John Marshall Harlan and Horace Harmon Lurton, served during fewer than half of the terms over which White presided. President Rutherford B. Hayes appointed Harlan. President Grover Cleveland appointed White associate justice, and President William McKinley appointed McKenna. President Theodore Roosevelt named two justices—Day and Holmes. President William Howard Taft appointed Van Devanter, Lurton, Lamar, Hughes, and Pitney and elevated White to chief justice. The remaining members—McReynolds, Brandeis, and Clarke—were named by President Woodrow Wilson. This chapter discusses the careers of the justices individually, in the order in which they joined the Court. Table 2.1 provides each justice’s date of birth, the name of the president who appointed him, and his date of death.

T

John Marshall Harlan (1833–1911) John Marshall Harlan was born June 1, 1833, in Boyle County, Kentucky. His father, James Harlan, was a Whig and a follower of Henry Clay. He named his son for the great chief justice of the U.S. Supreme Court, whom he also admired. The elder Harlan set an example for his son as a public servant. A prominent Kentucky politician, he served as a congressman, secretary of state for Kentucky, state legislator, and state attorney general. The young Harlan enrolled first at Centre College in Danville, Kentucky, and then studied law at Transylvania University in Lexington. He pursued his legal studies fur-

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Table 2.1 Year of Birth Brandeis Clarke Day Harlan Holmes Hughes

1856 1857 1849 1833 1841 1862

Lamar Lurton McKenna McReynolds Pitney Van Devanter White

1857 1844 1843 1862 1858 1859 1845

Appt. President Wilson Wilson Roosevelt Hayes Roosevelt Taft Hoover Taft Taft McKinley Wilson Taft Taft Cleveland Taft

Years of Service

Year of Death

1916–1939 1916–1922 1903–1922 1877–1911 1902–1932 1910–1916 1930–1941 1910–1916 1910–1914 1898–1925 1914–1941 1912–1922 1910–1937 1894–1910 1910–1921

1941 1945 1923 1911 1935 1948 1916 1914 1926 1946 1924 1941 1921

ther under the tutelage of his father and other attorneys in the state capital at Frankfort before being admitted to the Kentucky bar in 1853. Harlan began his political career early, joining the Know-Nothings in the 1850s. He became a member of the Constitutional Union Party in 1860 and is said to have been influential in persuading state leaders to remain in the Union when secession became a possibility in 1860–1861 (Filler, 1282). He supported the slave owner’s right to his property, but freed his own slaves before the war’s end. Harlan organized the Tenth Kentucky Volunteers to fight on behalf of the Union war effort and served as a colonel in the unit until resigning in 1863 to manage family interests after the death of his father. Harlan’s first experience in public office came as a result of his election to a one-year term as county judge in Franklin County, Kentucky. Harlan was elected city attorney of Frankfort and to the office of adjutant general of Kentucky before the war. In 1864, he was elected attorney general of Kentucky. He initially opposed the Thirteenth Amendment, but became more amenable to the government’s Reconstruction efforts as he saw the problems in the treatment of the freed slaves. He supported legal, but not social, equality for blacks. Having reluctantly joined the Republican Party after the war, Harlan campaigned vigorously in 1868 for the election of U. S. Grant as president. In 1871 and 1875 he ran unsuccessfully for the governorship of Kentucky on the Republican ticket. In 1876 he led an unsuccessful campaign to get

John Marshall Harlan (Harris & Ewing, Collection of the Supreme Court of the United States)

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the Republican presidential nomination for his friend and law partner Benjamin Bristow, but supported Rutherford B. Hayes when it became apparent that Bristow could not win. Harlan moved to the national scene in 1877 as a result of the controversial outcome of the race for president. He was appointed a member of a five-man commission sent to Louisiana to determine which of the rival governments of that state was legitimate. When Justice David Davis of Illinois resigned his seat on the U.S. Supreme Court to accept election to the Senate, President Hayes appointed Harlan to succeed him. Up until that time, his only judicial experience had been a one-year term as a county judge. Harlan served on the Court from 1877 to 1911, one of the longest terms of service up to that time. During his time on the Court he wrote 745 majority opinions, 100 concurring opinions, and 316 dissents—a total of 1,161 opinions. Justice Harlan’s constitutional and judicial philosophy encompassed a number of contradictions, some of which contributed to the mixed evaluations given his career by many historians through much of the twentieth century. His reputation was also influenced to a great extent by the attention given his dissents in numerous famous cases. One historian has summed up Harlan’s record by arguing that, on many topics, he was simply ahead of his time (Orth 1992b, 362). Although Harlan held conservative views on the importance of the protection of property, he was not unwilling to support the power of Congress to regulate it. He was, for example, a strong supporter of the Interstate Commerce Commission’s (ICC) authority to regulate railroads. He opposed the majority’s efforts to limit the power of the ICC in Interstate Commerce Commission v. Alabama Midland Railroad (1897). Harlan supported the power of the commission to set target rates for the railroads. He used similar arguments in favor of the expansion of the authority of the commission in his dissent in United States ex rel. Attorney General v. Delaware and Hudson Company (1909), a case that tested the constitutionality of the Hepburn Act of 1906. Although he was a strong supporter of the sanctity of property rights, Harlan did not consistently oppose regulation of business. His commitment in support of the unfettered development of the national economy is reflected in his opinions in a series of decisions regarding the enforcement of the Sherman Anti-Trust Act. In 1904 Harlan authored the majority opinion in Northern Securities Co. v. United States, the first case in which the Court confirmed the use of the law to break up a major combination. It continued until the end of his term, when he participated in deciding Standard Oil Co. v. United States (1911) and United States v. American Tobacco Company (1911). In his dissents in the latter two cases, Harlan argued for adhering to the letter of the Sherman Act. He believed that, in establishing the “rule of reason,” which took into account extenuating circumstances that might argue against the

The Justices

breaking up of a company, the Supreme Court was encroaching on the legislative authority of the Congress. He warned against the trend toward what he called judicial legislation: There is abroad in our land a most harmful tendency to bring about the amending of constitutions and legislative enactments by means alone of judicial construction. As a public policy has been declared by the legislative department . . . all concerned must patiently submit to what has been lawfully done, until the people of the United States—the source of all national power—shall, in their own time, . . . require a change of that policy. (Standard, 104)

One of the more controversial of Harlan’s dissents of the 1890s came in response to Pollock v. Farmer’s Loan and Trust Company (1895). The majority of the Court in this case struck down a federal law establishing an income tax. Harlan, incensed by what he saw as judicial interference with the power of Congress to tax, wrote: “It tends to establish that condition of helplessness in which Congress found itself during the period of the Articles of Confederation, when it was without authority . . . to lay and collect . . . taxes sufficient to pay the debts and defray the expenses of government” (Pollock, 671). In like manner, Harlan dissented repeatedly in cases in the 1890s in which the Supreme Court acted to restrict the powers of the Interstate Commerce Commission to regulate railroads, particularly through the setting of rates (Interstate Commerce Commission v. Alabama Midland Railroad [1897]). Throughout his time on the Court, Justice Harlan supported protection of the rights of freed slaves. He was willing to interpret the Reconstruction amendments liberally to apply to the actions of individuals as well as states (Przybyszewski, 206). He did so first in his dissent in the Civil Rights Cases (1883), in which he reminded his brethren that the purpose of the amendments had been to protect the rights of the freed slaves. Justice Harlan is perhaps best known for his famous dissent in Plessy v. Ferguson (1896), in which he argued against the majority’s position that a Louisiana segregation law that required separate railroad cars for whites and blacks was not discriminatory. Although acknowledging his belief that the white race was dominant in the United States, and might always be, he wrote: But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. . . . The destinies of the two races, in this country, are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law. (Plessy, 559)

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Harlan also dissented when the Court upheld a law from his home state of Kentucky that barred the education of blacks and whites in the same institution (Berea College v. Kentucky [1908]). In other cases during his thirty-four years on the Court, Harlan spoke out in support of the rights of minorities. He dissented in the Insular Cases, arguing that the Constitution should indeed follow the flag to protect the rights of inhabitants of the territories in the Caribbean and the Pacific that the United States had acquired in the last decades of the nineteenth century. In Bailey v. Alabama (1911), Justice Harlan joined the majority in supporting an opinion written by Justice Charles Evans Hughes that overturned an Alabama law requiring imprisonment of an African American man who had refused to pay a debt he owed his boss. Historians have argued that Harlan was ahead of his time when it came to issues of civil liberties. Historian John V. Orth cites, for example, Harlan’s dissent in Hurtado v. California (1884). Hurtado, having been convicted and sentenced to death in California, appealed his conviction on the grounds that California’s practice of prosecuting such cases without the use of a grand jury violated his due process rights under the Fifth Amendment to the federal Constitution. Harlan disagreed with the majority’s conclusion that the Due Process Clause of the Fourteenth Amendment could not be construed to apply at the state level the protections of the federal document. Harlan’s position anticipated by more than forty years the doctrine of the nationalization of the Bill of Rights, which the Court would eventually adopt. In subsequent cases during his time on the Court, Harlan penned dissents that supported incorporation of protection at the state level for freedom of speech (Patterson v. Colorado [1907]) and protection against self-incrimination (Twining v. New Jersey [1908]). Despite such liberal positions on civil liberties issues, Harlan also evidenced a conservative side. He accepted state enforcement of blue laws, arguing in Hennington v. Georgia (1896) that it was acceptable for the State of Georgia to prevent the operation of freight trains on Sunday. He wrote the majority opinion in Mugler v. Kansas (1887) upholding an extremely restrictive prohibition law that had forced a brewery out of business without compensation. Harlan was concerned not with the loss of property, but with the elimination of what he referred to as a public nuisance (Filler, 1286). During his long service on the Court, Justice Harlan found time to take on other duties as well. He taught constitutional law at Columbian (later George Washington) University from 1899 until his death. In 1893 he acceded to the request of President Grover Cleveland that he serve on the Bering Sea Arbitration Tribunal, which was established to resolve a dispute between the United States and Great Britain over fur seal fisheries in Alaska. Harlan became ill a few days after the convening of the Court in the fall of 1911 and died on October 14, 1911. He was interred in Rock Creek Cemetery in Washington, D.C.

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Edward Douglass White (1845–1921) Edward Douglass White was born November 3, 1845, in Thibodaux, LaFourche Parish, Louisiana, into a wealthy sugar beet–growing family. His father, Edward Douglas White, in addition to being a planter, was an attorney and a judge. He served a total of five terms in Congress and was elected Louisiana’s seventh governor, all before the birth of his son and namesake. His mother was Catherine Sidney Ringgold, who was descended from old families in Maryland and Virginia. The future chief justice was educated in parochial schools. He attended a convent school in New Orleans for five years; then, at the age of eleven, he enrolled in St. Mary’s Prep School in Emmitsburg, Maryland. He entered Georgetown College (later University) in Washington, D.C., in the fall of 1857. His college education was cut short by the onset of the Civil War, although he did continue his studies briefly under Jesuit tutelage after he returned to Louisiana in 1861. The next several years offered White a variety of experiences. He enlisted in the Confederate army in 1861 and had various assignments as aide-de-camp during the first two years of the Civil War. He was captured at the end of siege of Port Hudson in the summer of 1863, but was allowed to return home to Louisiana after several months’ imprisonment. Once the war was over, White decided to pursue the study of law, first under the supervision of noted New Orleans attorney Edward Bermudez, then as a student in the School of Law of the University of Louisiana (later Tulane University). He passed the bar exam and was admitted to the practice of law in 1868. White opened a law office in New Orleans, and like many men of his background and social standing, combined his professional pursuits with involvement in politics. In 1874 White was elected to the state senate. Two years later, Democratic governor Francis Nicholls, whose candidacy White had supported, appointed White to the state supreme court. He served in that position for two years, then was forced to step down because the new state constitution adopted in 1879 established a minimum age of thirty-five for supreme court justices. White resumed his law practice, but continued his involvement in politics. He was also instrumental in the creation of Tulane University in 1884.When Nicholls returned to power in 1888 after a hiatus of some years, he appointed White to fill a vacancy as the junior U.S. senator from Louisiana. White served three years in this capacity, from 1891 to 1894, devoting his time and attention particularly to the interests of Louisiana sugar growers. President Grover Cleveland nominated Edward Douglass White to the U.S. Supreme Court on January 15, 1894, and the Senate confirmed the appointment the following day. Cleveland had apparently intended to follow the tradition of selecting his appointee on geographic guidelines, but after squabbles over two candidates with New York politicians, Cleveland determined to name White instead. Although White and the president had been on opposite sides in the tariff controversy, White had gen-

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Edward White (Harris & Ewing, Collection of the Supreme Court of the United States)

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erally supported Cleveland’s policies in other areas (Watts 1997a, 1640). White delayed taking the seat for several weeks after confirmation as he led a struggle in the Senate over the passage of the Wilson-Gorman Tariff bill. When the legislation passed and White moved on to his seat on the Court, it was with the satisfaction of knowing that his efforts had resulted in protecting Louisiana planters’ interests through the incorporation in the bill of a 40 percent tax on imported sugar, even though the bill had largely frustrated the president’s plans for tariff reform. Thus White began his term of service that would last until 1921, first as associate justice from 1894 to 1910, then for eleven years as the chief justice, from 1910 to 1921. As associate justice, White exhibited in his opinions certain characteristics that would continue to develop as his service on the Court progressed. In foreign policy, it was during this period that White’s opinions served to define the relationship between the United States and its recently acquired territorial possessions. Soon after he took his seat he began to give hints of his attitude toward the Sherman Act that would eventually bear fruit in his most important opinion. He was a consistent supporter of the implementation of the doctrine of administrative discretion, and of the concept of dual federalism. White supported the power of government to pass laws designed to achieve social reform, but he could be inconsistent at times, as when he supported the doctrine of freedom of contract in certain cases. It was in participating in a series of decisions regarding the relationship of the United States to its new territorial possessions that Associate Justice White formulated the doctrine of incorporation. The acquisition of Puerto Rico, Hawaii, and several other territories in the late nineteenth century raised the question often phrased as, “Does the Constitution follow the flag?” Concerned parties wondered, for example, whether imported sugar from Puerto Rico was subject to the same tariffs as those applied to goods from foreign countries. Civil libertarians questioned whether the constitutional guarantees of procedural due process applied to residents of Hawaii and other territories. Justice White, interested in part in protecting the sugar interests in his home state of Louisiana, formulated the principle that the Constitution applied only in territories that had been incorporated by Congress. This ambiguous term was left to be defined by the subjectivity of the Court. In ruling in Rassmussen v. United States (1905) that Alaska had been incorporated, White said this meant that the territory was somewhere between statehood and colony (Watts 1997a, 1648). From the time he joined the Court, Justice White was ambivalent about the interpretation of the Sherman Anti-Trust Act of 1890. Although he concurred silently in the Court’s opinion in United States v. E. C. Knight Company (1895), which represented the first test of the act, White soon thereafter began to formulate what would eventually become his doctrine of the “rule of reason.” In response to the majority ruling in United States v. Trans-Missouri Freight Association (1897), White authored a lengthy dissent in which he argued that strict interpretation of the Sherman Act by the

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Court would lead to unreasonable restrictions on the development of business and the economy. White reiterated similar concerns the following year in dissenting from the Court’s ruling against an association of railroads in United States v. Joint Traffic Association (1898). Although he also dissented in Northern Securities Co. v. United States (1904), White did not raise the question of reasonableness in this instance. It would require seven more years and numerous changes in Court personnel, as well as White’s own promotion, before he reached the point where he could carry the Court with him in his effort to establish the rule of reason. President William Howard Taft’s elevation of Edward Douglass White to the position of chief justice came on December 12, 1910. It was regarded as an unusual choice for several reasons. Until that time, no associate justice had been promoted to the Court’s center chair. Some doubted the wisdom of this step, but it has been argued that Taft might have thought it would foster continuity in a Court that already had a number of vacant seats. The selection was also a surprise because evidence shows that Taft had already tentatively determined to give the position to Charles Evans Hughes. Some historians argue, perhaps a bit unkindly, that Taft ultimately rejected the idea because he himself hoped eventually to become chief justice, and Hughes’s youth would make that unlikely. Finally, some have suggested that Taft chose White because he was looking ahead to the election of 1912, and he thought the appointment of a Catholic would gain him political support in that quarter (Watts, 1650). Whatever the reason, the nomination raised little opposition, and White took his seat as chief justice on December 19, 1910. The ruling that most historians regard as his most important came shortly after White had taken the center chair as chief justice. In a trust-busting case, Standard Oil Co. v. United States (1911), which targeted John D. Rockefeller’s huge corporation, the federal government invoked the Sherman Act to force its dissolution. Pursuing his long-held conviction that Congress in passing the legislation had not intended to force the breakup of all combinations, and that the common law standard of reasonableness should be used as a guideline, Chief Justice White took the opportunity to formulate in his majority opinion what became known as the “rule of reason.” Referring to the manner in which the Sherman Act’s provisions were to be applied and concluding that they were not meant to be used against every form of combination, White wrote: Thus not specifying but indubitably contemplating and requiring a standard, it follows that it was intended that the standard of reason which had been applied at the common law and in this country in dealing with subjects of the character embraced by the statute, was intended to be the measure used for the purpose of determining whether in a given case a particular act had or had not brought about the wrong against the statute provided. (Standard Oil, 60)

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Standard Oil fit the definition of an unreasonable combination and thus had to be resolved. The opinion was widely hailed by businessmen as offering an avenue by which they might persuade the courts to leave their combinations untouched. White’s rule of reason played an important role in influencing the Court’s opinions in other Sherman Act litigation for the next decade. It was used to thwart the Justice Department’s efforts to break up a trust in the business of producing shoe-manufacturing machinery, the Court finding in United States v. Winslow (1913) that the combination was a reasonable one. Near the end of White’s term as chief justice, the doctrine was also employed to signal what proved to be the onset of a period during which the Court would generally be probusiness. In United States v. U. S. Steel (1920), the Court concluded that “bigness in and of itself did not constitute unlawfulness; it was only the deliberate abuses that might result from size.” Chief Justice White was instrumental in supporting and strengthening the doctrine of administrative discretion, particularly as it applied to the Interstate Commerce Commission. Following the trend that had developed in the Progressive Era, especially through the efforts of President Theodore Roosevelt and the passage of the Hepburn Act of 1906, White wrote majority opinions that strengthened the powers of the commission. In Interstate Commerce Commission v. Illinois Central Railroad Company (1910), White said that, henceforth, the Court, when reviewing the work of the commission, would look only at whether the commission had the power to issue specific orders under the authority granted it by Congress. In McCabe v. Atchison, Topeka, and Santa Fe Railway (1914), he joined the Court in firmly approving the ICC’s rate-fixing powers, ending a controversy that had dragged on for more than twenty years. Although Justice White was a strong supporter of the doctrine of dual federalism—the concept that there were certain spheres in which state and federal governments should be allowed to operate without interference—he was not a consistent supporter of the rights of government to legislate on behalf of labor. Although he supported efforts favoring labor reform by lining up with the minority in Lochner v. New York (1905) and with the majority in Muller v. Oregon (1908) to approve state legislation putting limits on hours worked, he voted against both federal and state legislation limiting the use of yellow-dog contracts (Adair v. United States [1908]; Coppage v. Kansas [1915]). He also supported without comment the Court’s rejection of the first federal laws designed to limit child labor in Hammer v. Dagenhart (1918). On the topic of workmen’s compensation, White was also inconsistent. He joined the Court in supporting New York’s law on this topic (New York Central Railroad Company v. White [1917]), but shortly thereafter voted against a similar law from Washington state (Mountain Timber Company v. Washington [1917]) because the latter did not give

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the employer as much discretion in deciding how to provide the required insurance for this protection. White was more likely to support the use of federal police power on behalf of the consumer. He joined the majority in Champion v. Ames (1903) in upholding a federal law prohibiting the mailing of lottery tickets across state lines. He wrote the majority opinion in McCray v. United States (1904), upholding the power of Congress to use the taxing power to regulate the production of oleomargarine. He also gave his stamp of approval to the Pure Food and Drug Act by lining up with the majority in Hipolite Egg Company v. United States (1911) and to the Mann Act, curbing interstate prostitution rackets in Hoke v. United States (1913). Chief Justice White cannot be considered to have been a supporter of civil rights or civil liberties. Early in his time on the Court he supported the majority without comment in the landmark ruling in Plessy v. Ferguson (1896), which gave the Court’s stamp of approval to the segregation policies adopted during the Jim Crow era. In regard to the civil liberties issues that came before the Court toward the end of White’s term, historian James F. Watts Jr. says, “White voted unreservedly to grant to the federal government virtually whatever it asked for” (Watts, 1655). Thus he supported convictions under the Espionage Act in Schenck v. United States (1919) and the Sedition Act in Abrams v. United States (1919). White’s record as chief justice has received fair, if not outstanding, evaluation from historians. Judith A. Baer describes him as having “impressive knowledge of law and a facility for creative reasoning,” and, as a leader, a man who was “skilled at promoting consensus” (Baer, 530). Biographer Robert B. Highsaw attributes White’s success as chief justice to “the fact that, though he was far from a mediocrity, he was not such an outstanding man that he aroused any considerable opposition” (Highsaw, quoted in Baer, 530). As White grew older, his productivity declined, hampered in part by the development of cataracts. After the election of Warren G. Harding to the presidency in 1920, former President Taft, who believed the new chief executive would be likely to name him to replace a retiring White, launched a campaign to get the chief justice to step down. White resisted, but he became ill suddenly in May 1921 and died a few days later, on May 19, 1921. He was interred in Oak Hill Cemetery in Washington, D.C.

Joseph McKenna (1843–1926) Joseph McKenna was born August 10, 1843, in Philadelphia, Pennsylvania. He was the son of an Irish Baker, John McKenna, and his wife, the former Mary Johnson. His forebears had come to America to escape the Irish potato famine, and his father moved the family to Benecia, California, in 1855.

Joseph McKenna (Harris & Ewing, Collection of the Supreme Court of the United States)

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McKenna was educated in parochial schools in Philadelphia, including the institution that was later to become St. Joseph’s College, and both parochial and public schools in California. He initially planned to enter the Catholic priesthood, but he turned to law instead. He studied law on his own until he was able to pass the California bar exam in April 1865. Soon after beginning his legal career, Joseph McKenna was elected district attorney with the support of the local Republican machine. After holding this position for two terms, he returned to the practice of law. He represented the Solan County district briefly in the state assembly before being elected to Congress from California’s third district in 1884. He served four terms in the U.S. House of Representatives, where he became good friends with William McKinley, a fellow member of the House Ways and Means Committee. During that time he pushed for programs and appropriations that would benefit his constituents, including railroad magnate Leland Stanford. It was as a result of Stanford’s recommendation that, on March 28, 1892, President Benjamin Harrison appointed McKenna to a position on the U.S. Court of Appeals for the Ninth Circuit, a position he held until he was made U.S. attorney general in 1897 by his old friend, now president, William McKinley. Many assumed, correctly, that McKinley hoped eventually to promote McKenna to the Court (Watts 1997c, 1727). McKenna was McKinley’s only appointment to the U.S. Supreme Court. He was nominated on December 16, 1897, to replace fellow Californian Stephen J. Field, in the then current tradition of selecting justices to represent specific geographic areas of the country. His confirmation by the Senate was delayed several weeks by opposition from the same railroad officials who had previously opposed his advancement because of his links to, and support from, their rival Stanford. McKenna has been rated by some historians as being an average, if not mediocre, justice. Upon his appointment, he felt inadequate to the task and attempted to prepare by spending several weeks studying at the Columbia University School of Law. Some have also pointed out his apparent inability to develop any overall judicial philosophy while on the bench, a fact that is reflected in the wide variety of positions he took over time on a number of issues. He seemed to form an opinion on each case as it arose, seemingly not taking notice of precedents (Watts 1997c, 1727). During his twentyseven years on the bench, McKenna authored a total of 633 opinions, only a relatively small number of which were for the majority. He did, however, receive praise for his distinctive and readable style. Probably nowhere is Justice McKenna’s inconsistency more apparent than in the positions he took in cases considering the regulation of labor. In 1905 he voted with the majority in Lochner v. New York (1905), striking down a New York law limiting the numbers of hours per day men could work in bakeries. Three years later, apparently convinced by the arguments and data presented by Louis D. Brandeis, he joined the Court in upholding unanimously an Oregon law limiting the number of hours per day

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women could work in laundries (Muller v. Oregon [1908]). He reacted similarly to legislation having to do with the use of yellow-dog contracts. He dissented from a decision in Adair v. United States (1908), overturning a federal law outlawing the use of these restrictive agreements by employers, but in 1915 in Coppage v. Kansas he joined the majority in overturning a similar law passed by the State of Kansas because he believed the law was too far-reaching. In the matter of employer liability laws, McKenna was generally in favor of making employers responsible for workers hurt on the job, but in Arizona Employers’ Liability Cases (1919) he wrote a dissent explaining that he refused to support the law in question because it extended liability even to cases where the employer was not at fault. Historians have also pointed to the widely varying positions McKenna took on the subject of companies being “vested with a public interest.” In 1914 in his majority opinion in German Alliance Insurance Company v. Lewis (1914) McKenna defined the concept very broadly to give the government significant opportunity for regulation of businesses. Yet, in subsequent cases he wrote strong dissent from majority opinions that used similar arguments to defend government regulation (Watts 1997c, 1727). Justice McKenna generally supported the use of the Sherman Anti-Trust Act against large conglomerates, although his position on this subject also changed over time. In the first major trust-busting case, Northern Securities Co. v. United States (1904), he voted with the majority. In 1911 he supported Chief Justice White’s opinions in the Standard Oil and American Tobacco cases, in which he broadened the interpretation of the Sherman Act to establish the “rule of reason.” McKenna himself authored an important opinion in a case that marked another turning point in the government’s efforts to regulate big business. In 1920 he wrote the majority opinion in United States v. U.S. Steel, in which he argued that mere bigness, in and of itself, did not constitute a violation of antitrust laws: We are unable to see that the public interest will be served by yielding to the contention of the Government respecting the dissolution of the company or the separation from it of some of its subsidiaries; and we do see in a contrary conclusion a risk of injury to the public interest, including a material disturbance of, and, it may be serious detriment to the foreign trade. And in submission to the policy of the law and its fortifying prohibitions the public interest is of paramount regard. (U.S. Steel, 457)

Justice McKenna was much more consistent in his support for the powers of the Interstate Commerce Commission. He was repeatedly among the majority who argued that the Court should not second-guess or otherwise undo the rulings of the ICC. McKenna wrote the opinion in the first of this series of cases, Illinois Central Railroad Co. v. Interstate Commerce Commission (1907), in which the Court established

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the principles that it would accept without revisiting the data provided by the commission as a basis for its decisions. In 1910 he concurred in one decision and authored another (Interstate Commerce Commission v. Chicago, Rock Island, and Pacific Railway Company [1910]), in which the Court established a hands-off policy toward the Interstate Commerce Commission’s exercise of the rate-setting powers it had been granted by the Hepburn Act of 1906. In the controversial area of federal police power, Justice McKenna generally supported the exercise of such discretion by the federal government. He wrote two important opinions for the majority upholding this type of legislation. In Hipolite Egg Company v. United States (1911), McKenna spoke for a unanimous Court in upholding regulation under the Pure Food and Drug Act of 1906. The case in question concerned the use of preserved eggs by a bakery. McKenna rejected the defendants’ argument that the federal government had no jurisdiction over the articles in question once they had come to rest within a state: And appropriate means to that end [getting adulterated products out of commerce] which we have seen is legitimate, are the seizure and condemnation of the articles at their point of destination in the original, unbroken packages. The selection of such means is certainly within that breadth of discretion which we have said Congress possesses in the execution of the powers conferred upon it by the Constitution. (Hipolite, 58)

In a similar manner, McKenna upheld the power of Congress to regulate the transportation of women across state lines for immoral purposes. In Hoke v. United States (1913) he wrote for the unanimous Court in upholding the Mann Act of 1910. Justice McKenna supported restrictions on civil liberties by the federal government, at least during wartime or when federal officials acted in response to a perceived threat. He voted with the majority in upholding the Espionage Act of 1917 and the Sedition Act of 1918. In a series of important decisions, he voted consistently with the majority on these issues. He supported Justice Holmes’s opinion in Schenck v. United States (1919) and the restrictive opinions in Abrams v. United States (1919), in Debs v. United States (1919), and in Pierce v. United States (1919), as well. He authored the majority opinion in Gilbert v. Minnesota (1920), in which he spoke strongly in support of restrictions on freedom of speech during wartime. Justice McKenna posed a problem for his fellow members, as his mental powers began to decline after 1920. Chief Justice Taft tried unsuccessfully to persuade him to resign, and the Court eventually developed a policy of working around him until he finally stepped down on January 5, 1925. Justice McKenna died November 21, 1926, in Washington, D.C., and was interred in Mount Olivet Cemetery in that city.

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Oliver Wendell Holmes Jr. (1841–1935) Olive Wendell Holmes Jr. was born March 8, 1841, in Boston, Massachusetts, to Oliver Wendell Holmes and Amelia Lee Jackson Holmes. His father was a physician who was also interested in literary pursuits. In addition to his professional duties, he lectured at the Harvard Medical School and gave talks on literary topics to lay audiences. The justice’s mother was the daughter of a prominent Boston lawyer who served on the Supreme Judicial Court of Massachusetts. Holmes’s mother is said to have instilled in him a “secure self confidence” and a “commitment to courtly ideals and conduct” (Novick, 405). As a child, Holmes attended E. S. Dixwell’s private Latin School in Boston, then enrolled at Harvard College, from which he graduated in 1861 with the title of class poet. After service in the military during the Civil War, Holmes studied at Harvard Law School, from which he graduated in 1866. He was admitted to the Massachusetts bar in 1867 and joined the Boston firm of Shattuck, Holmes, and Munroe in 1872. Historians have argued that Holmes’s service in the military during the Civil War made a profound impression on him, and references he made to it throughout the course of his life indicate that this was so. He enrolled in the Twentieth Massachusetts Regiment of the Army of the Potomac in 1861 and was commissioned a second lieutenant. He served the whole of the three-year term for which he enlisted. He became an aide to General Horatio Wright in the winter of 1864 and was discharged as a captain in July 1864. He was wounded three times during his service—in the chest, the neck, and the heel. Like his father, Holmes was devoted to a literary career in addition to his practice of the law. He served as the editor of a number of publications, including the American Law Review, 1870–1873, for which he wrote numerous articles. He also edited the twelfth edition of James Kent’s Commentaries on American Law, which was published in 1873. His most famous work, The Common Law (1881), was based on a series of essays that he presented as the Lowell Lectures in Boston in the fall of 1880 before preparing them for publication. This book, often called “the greatest work of American legal scholarship” (Novick 1992, 407), is still regarded today as a masterpiece in its field. The ideas set forth in it were influential in guiding Holmes’s work throughout his career on the U.S. Supreme Court. In the fall of 1882 Holmes accepted a chair in the Harvard Law School that had been endowed specifically for him by Boston attorney Louis Brandeis. Brandeis, fifteen years Holmes’s junior, would eventually join him as a colleague on the federal bench. Holmes held the teaching position for only a few months before the governor of Massachusetts tapped him for a seat on the Supreme Judicial Court of Massachusetts. Holmes served as a member of that body for almost twenty years, becoming its

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Oliver Wendell Holmes (Harris & Ewing, Collection of the Supreme Court of the United States)

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chief justice on August 5, 1899. During his service on the Court Holmes drew frequent praise for his opinions from Progressive reformers, a phenomenon that disturbed him, since he thought judges should be perceived as neutral (Freund 1997, 2759). President Theodore Roosevelt nominated Holmes for a seat on the U.S. Supreme Court on August 11, 1902. He took his seat on December 8, 1902, and served on the Court for thirty years, under four chief justices. He wrote a monumental 873 opinions, the vast majority of which were opinions of the Court, although it is for some of his dissents that he is often best remembered. Justice Holmes, unlike many of the men with whom he served, not only exhibited a consistent judicial philosophy but also was able to comment knowledgeably on the historical and legal sources of his ideas. Many of his decisions were colored by his strong sense that the Court should defer to the powers and will of the legislature and should neither second-guess the legislature nor allow members’ social and political predilections to color their decisions. The consistency with which this view informed his position on issues meant that he seemed often to be callous to the interests and rights of minorities, laborers, and other disadvantaged groups. Holmes’s positions on First Amendment issues were not so uniform. After World War I they became increasingly liberal, and he gradually became willing to support the nationalization of the federal Bill of Rights. Justice Holmes believed in free and open competition in the marketplace. He did not support enforcement of the Sherman Act, which he described as an “‘imbecile statute’ . . . aimed at making everyone fight and forbidding anyone to be victorious” (Novick, 408). This stance is reflected in his dissent in Northern Securities Co. v. United States (1904), a position that earned him the enmity of President Roosevelt. In Dr. Miles Medical Co. v. John D. Park and Sons Co. (1911), he opposed using the Sherman Act to break up a price-fixing scheme. Holmes wrote, “I think . . . it is safe to say that the most enlightened judicial policy is to let people manage their own business in their own way, unless the ground for interference is clear” (White, 227). A number of Justice Holmes’s most famous dissents came in cases in which he refused to join his brethren in using the doctrine of liberty of contract to void social reform legislation aimed at improving the condition of laborers. Holmes’s interest lay not so much in improving the lot of blue-collar workers as it did in supporting his view of the role of legislatures. In Lochner v. New York (1905), Hammer v. Dagenhart (1918), and Adkins v. Children’s Hospital (1923), among others, Holmes argued that the legislature must be allowed to engage in social experiments unless the actions were clearly unconstitutional. The dissent in Lochner came in a case testing a New York statute that placed limits on the number of hours per day employees could work in bakeries. The majority

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opinion, written by Justice Rufus W. Peckham, took the position that the law interfered with the liberty of contract between management and employee. Justice Holmes’s dissent in the case took the Court to task for expanding the doctrine of liberty of contract and argued that a state should be allowed to pass such social legislation unless it conflicted with fundamental law. Holmes’s dissent in Hammer v. Dagenhart went even further in criticizing the majority for incorporating their own points of view. This case challenged the KeatingOwen Child Labor Act of 1916, through which Congress had banned from interstate commerce articles manufactured by child labor. He wrote, “I should have thought that if we were to introduce our moral conceptions where, in my opinion, they do not belong, this was preeminently a case for upholding the exercise of all of its powers by the United States” (Hammer, 280). In this instance, Holmes’s opinion found widespread agreement throughout the country, and Congress soon enacted a second child labor act. This one, too, was overturned, however, in Bailey v. Drexel Furniture Company (1922), and it was not until United States v. Darby Lumber Company (1941) that the Court, now containing a complement of Franklin D. Roosevelt’s appointees, finally adopted the position that Holmes had taken on this issue. Although Holmes’s emphasis on deference to the legislature inadvertently gave him a reputation as a liberal, his rulings in a series of cases concerning the rights of minorities indicated much more clearly the fundamental principle that he was committed to uphold. When the Court voted in Bailey v. Alabama (1911) that a state law punishing breach of contract by black laborers was a violation of the “involuntary servitude” provision of the Thirteenth Amendment, Holmes disagreed. He looked instead at the conditions that the law addressed and wrote that the punishment of breach of contract could not automatically be equated with a violation of the amendment abolishing slavery. In a series of cases concerning the rights of aliens, Holmes argued in favor of the broad power of the federal and state governments to determine the rights of aliens. He believed that the government had the right to determine the circumstances and conditions under which citizenship would be granted, as well as the right to bar aliens entirely under certain circumstances. Given his efforts to decide cases consistently on the basis of his philosophy about the rights of governments, and especially legislatures, to govern without interference, one must note, however, that Holmes was not incapable of adopting an evolving philosophy in some areas. The most notable case in point is his changing position after World War I on the subject of free speech. Beginning with a series of cases challenging convictions under the Espionage Act of 1917, and continuing through the early discussions of the application of the federal Bill of Rights to the states through the due process clause of the Fourteenth Amendment, one can trace the gradual change in Holmes’s thinking.

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The first important case under the Espionage Act that the Court decided was Schenck v. United States (1919), for which Holmes wrote the majority opinion. The case tested the conviction of a Socialist who had printed and circulated circulars criticizing the war effort and urging young men to resist the draft. Diverging from his earlier stance that only prior restraint could constitutionally be used to restrict freedom of speech, Holmes now conceded that under certain circumstances other action could be taken. In one of the most famous phrases he was ever to author, he wrote: We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is committed. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. . . . The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. (Schenck, 52)

Holmes was strongly criticized for his willingness to limit freedom of speech, and by the next term had begun to reconsider. When the Court used the “clear and present danger” doctrine to uphold a conviction in Abrams v. United States (1919), Holmes dissented in another often-quoted opinion that is regarded by many historians as setting the stage for the Court’s future expansion of the protection of free speech rights. Holmes’s argument served to limit the use of the clear and present danger test by emphasizing the importance of the expression and circulating of ideas, even ones that seemed silly to many: “When men have realized that time has come to upset many fighting faiths, they may come to believe . . . that the best test of truth is the power of the thought to get itself accepted in the competition of the market and that truth is the only ground upon which their wishes can be safely carried out” (Abrams, 630). In Pierce v. United States (1919), Holmes and Brandeis again voiced support for freedom of expression, dissenting from a conviction under the Espionage Act in which Justice Pitney had ruled that the individual deserved conviction in part because the ideas expressed in his pamphlets were false. Justice Holmes resigned from the Court on January 12, 1932, at the suggestion of Chief Justice Hughes. He continued to divide his year between his homes in Massachusetts and Washington, D.C., and he died in Washington on March 6, 1935. He was interred in Arlington National Cemetery. Justice Holmes left most of his estate to the U.S. government. The proceeds from it have been used to produce a multivolume history of the U.S. Supreme Court, to publish volumes of his opinions, and to support an annual lectureship.

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William Rufus Day (1849–1923) William R. Day was born in Ravenna, Ohio, on April 17, 1849. His family was originally from New England, where both grandfathers had been involved in the antislavery movement. Both his grandfather and father served on the Ohio Supreme Court, his father as chief justice (Bickel and Schmidt 1984, 72). Day attended local public schools in Ravenna, before going on to earn a bachelor’s degree from the University of Michigan. He read law privately and also attended the law school of the University of Michigan for one year. He was admitted to the Ohio state bar in 1872. Day practiced law continuously in Canton, Ohio, for more than twenty-five years and became a partner in Lynch and Day, the city’s leading law firm. It was during this time that he formed a close friendship with another Canton lawyer, William McKinley. This friendship was to grow and strengthen until McKinley’s death in 1901, and provided Day opportunities to serve in national political positions. Day’s judicial career began with his service as a judge of the Court of Common Pleas for six months in 1886. In 1889, President Benjamin Harrison offered him an appointment to the U.S. District Court, a position for which he was confirmed, but he resigned without ever taking office. In 1896, Day supported William McKinley’s campaign for the presidency on the Republican ticket, and was rewarded when McKinley, upon becoming president, nominated Day in April 1897 to be first assistant secretary of state. Day served a difficult apprenticeship under Secretary John Sherman, who by that time was suffering from mental difficulties. When Sherman stepped down, Day succeeded him as secretary of state in April 1898, but resigned a few months later, at the end of the Spanish-American War. He headed the U.S. delegation to the peace conference in Paris, presiding over the successful negotiation of the Treaty of Paris of 1898. Day resumed his judicial career in February 1899, when President McKinley appointed him to a seat on the federal Court of Appeals for the Sixth Circuit. He continued in this position until he was tapped for a seat on the U.S. Supreme Court. President Theodore Roosevelt nominated Day to the U.S. Supreme Court on February 19, 1903, to replace George Schiras Jr., who had retired. Day was confirmed by voice vote on February 23, 1903, and seated on March 2, 1903. President Roosevelt chose Day for the position in January 1903 after being rebuffed by William Howard Taft, who was then governor of the Philippines. Several prominent Republican leaders, who had come to know Day during his service in the McKinley administration, recommended him. Some have also suggested that Roosevelt chose Day in order to improve his own standing with Republican Party members in Ohio (Hall 1992, 220). Although Day’s role on the Court did not equal those of illustrious brethren like Holmes and Brandeis, he did establish a solid record defined by his own philosophy

William Day (Harris & Ewing, Collection of the Supreme Court of the United States)

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on issues related to state police powers, the federal commerce clause, race relations, and other topics. He was a strong supporter of the concept of dual federalism, buttressed by the separate role for state governments he believed was spelled out in the Tenth Amendment. By the end of his term of service it could be said that Day’s thinking had come to accommodate a larger role for the concept of the welfare state. Justice Day was a strong supporter of government regulation of big business. He voted with the majority for strict enforcement of the Sherman Anti-Trust Act and opposed the development and use of the “rule of reason,” creating a loophole used to allow some conglomerates to continue to exist. He also voted to support and strengthen the power of the Interstate Commerce Commission to regulate railroads. Soon after he took his seat on the Court, Justice Day joined the majority in concluding that the Northern Securities Company was operating in violation of the Sherman Act and must be broken up (Northern Securities Co. v. United States [1904]). Although he did not author a dissent in 1911 when Chief Justice Edward Douglass White posited the concept of the “rule of reason,” Justice Day took the opportunity the following year to illustrate his preference for a strong stand against trusts when he wrote the majority opinion in United States v. Union Pacific Railway Co. (1912), rejecting the consolidation of two competing railway systems. He spoke out yet more strongly on this issue with his dissent in 1920 in United States v. U.S. Steel Corporation. Writing for Justices Pitney and Clarke, as well as himself, Day completely rejected the argument that there could be factors justifying the continued existence of such large corporations. He contended that the fact that U.S. Steel did not completely control the steel industry did not warrant its continued control of a lion’s share of the industry: From the earliest decisions of this court it has been declared that it was the effective power of such organizations to control and restrain competition and the freedom of trade that Congress intended to limit and control. That the exercise of the power may be withheld, or exerted with forbearing benevolence, does not place such combinations beyond the authority of the statute which was intended to prohibit their formation, and when formed to deprive them of the power unlawfully attained. (U.S. Steel, 464)

Although Justice Day was inclined to support the limiting of the federal commerce power as spelled out in the distinction between transportation and commerce in the Court’s opinion in United States v. E. C. Knight Company (1895) (Watts 1997d, 1784), he had no problem giving his approval to the regulation of actual transportation. He authored a series of opinions that restricted unethical practices by the railroads. In Armour Packing Co. v. United States (1908), he endorsed the power of Congress to punish companies that negotiated special shipping rates. In 1912 he gave a stamp of

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approval to the Hepburn Act’s strengthening of the powers of the Interstate Commerce Commission. In Interstate Commerce Commission v. Goodrich Transit Company (1912), he wrote for the Court as affirming that the commission could require the filing of reports by any business that was even partially engaged in interstate commerce. Justice Day was supportive of the rights of labor early in his career on the Court, but is also remembered as having been the author of the decision that struck down the most important piece of federal child labor legislation passed during this era. Day dissented from the Court’s ruling striking down state maximum hours legislation in Lochner v. New York (1905) and also opposed the decision that overturned a state law outlawing the use of yellow-dog contracts (Coppage v. Kansas [1915]). One of Justice Day’s best-known opinions, however, was that in Hammer v. Dagenhart (1918) striking down the Keating-Owen Child Labor Act of 1916, in which Congress had outlawed the shipping in interstate commerce of products manufactured with child labor. It has been argued that Day’s position in this case was based strictly on his narrow view of the scope of the commerce clause and the distinction between manufacturing and commerce that he continued to uphold (Watts 1997d, 1785). The last paragraph of the opinion makes clear his view: In our view the necessary effect of this act is, by means of a prohibition against the movement in interstate commerce of ordinary commercial commodities, to regulate the hours of labor of children in factories and mines within the States, a purely state authority. Thus the act in a twofold sense is repugnant to the Constitution. It not only transcends the authority delegated to Congress over commerce, but also exerts a power as to a purely local matter to which the federal authority does not extend. (Hammer, 276)

In keeping with his support of the concept of dual federalism and the careful division between state and federal authority, Justice Day championed the authority of the states in a number of areas. His support of state labor legislation in Lochner and Coppage has already been noted. Perhaps Day’s most important decision in support of state police power came in a controversial case originating in North Dakota. The NonPartisan League in that state had persuaded the legislature to pass laws levying taxes, the proceeds from which would be used to pay for state-owned utilities, construction of state-owned homes, and establishment of a state banking system. Justice Day wrote in Green v. Frazier (1920) that it was within the authority of the state to take such action, and the U.S. Supreme Court could not intervene unless there was a conflict with the federal Constitution. During his years on the Court, Justice Day compiled a much stronger and more consistent record in support of the rights of African Americans than did many of his colleagues. In a number of cases dealing with state and local Jim Crow policies he

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came down against discrimination and injustice. He joined Justice Harlan in dissent in Berea College v. Kentucky (1908), a case that tested a state law barring the education of blacks and whites in the same institution. He also supported a decision overturning the Oklahoma Separate Car Law, which had attempted to evade the “separate but equal” proviso concerning railroad cars, and supported the rejection of the grandfather clause in Guinn and Beal v. United States (1915). Day’s most important opinion in the area of civil rights came in Buchanan v. Warley (1917), in which the Court voted unanimously to overturn a Louisville, Kentucky, ordinance that prohibited blacks and whites from living in the same neighborhood. In considering some types of social legislation, Justice Day exhibited a conservative streak. In 1910 he wrote an opinion interpreting very narrowly the rights of women under a statute passed for the District of Columbia. The case of Thompson v. Thompson (1910) questioned whether the power to sue in her own name authorized for women by the statute extended to suits against her husband. Day concluded that it did not. He said that such actions had long been barred by common law and that, if Congress had intended to grant such authority, it would have said so. A few years later Day interpreted the Mann Act broadly to punish transportation of women across state lines for immoral purposes, whether money was involved or not (Caminetti v. United States [1917]). Justice Day retired from the Court on November 13, 1922, but continued to be of service to the country for several years. In 1921 he accepted Chief Justice Taft’s appointment to a judicial reform committee whose work culminated in the proposal of the Judiciary Act of 1925. He also served on an American-German War Claims Commission created to settle claims left over from World War I. Justice Day died July 9, 1923, on Mackinac Island, Michigan, and was interred in West Lawn Cemetery in Canton, Ohio.

Charles Evans Hughes (1862–1948) Charles Evans Hughes was born April 11, 1862, in Glens Falls, New York. His father had immigrated to the United States from Wales. He was a minister, first Methodist, then Baptist. Hughes’s mother, Mary Connally Hughes, was a schoolteacher and a devout Baptist. Hughes later noted that his parents were strong influences on his development and on his character and conduct throughout his life. Hughes was educated mostly at home by his parents, until they moved to New York City when he was thirteen. There he enrolled briefly in a public school, earning his high school diploma at the age of thirteen. The following year, at the age of fourteen, Hughes enrolled in Madison (later Colgate) University, where he studied for two years. He initially intended to honor his parents’ wishes that he become a minister, but

Charles Evans Hughes (Harris & Ewing, Collection of the Supreme Court of the United States)

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changed his mind upon transferring to Brown University in 1878. He graduated from Brown in 1881 and took a job teaching Greek, Latin, and mathematics at the Delaware Academy in Delhi, New York. Hughes began the study of law in the office of William M. Gleason. He entered Columbia Law School in the fall of 1882 and graduated with highest honors two years later. After having passed the bar exam with a record score in 1884, he joined the firm of Chamberlin, Carter, and Hornblower in New York City, where he remained for three years. In 1891 he accepted a full professorship at Cornell University, where he taught for two years. Financial pressures and other concerns forced him to return to the practice of law in his old firm in 1893. He also accepted part-time teaching positions at Cornell and New York Law Schools. Hughes’s involvement with politics began in 1905 when he was designated counsel to a committee of the New York state legislature that was investigating corruption in the operation of utility companies. His work revealed fraudulent rates and other irregularities, which led to calls for the creation of a public service commission to regulate rates. As a result of this success, the legislature retained him to investigate scandals in the insurance industry. This work also resulted in reforms. Having built a statewide reputation as a result of his investigatory work, Hughes was nominated as the Republican candidate for the governorship of New York in 1906. He ran against and defeated William Randolph Hearst. He was reelected in 1908 and served as governor until he was nominated for a seat on the U.S. Supreme Court in 1910. As governor of New York, Hughes sponsored numerous Progressive reforms, including a workmen’s compensation law, anti–child labor laws, and the creation of a public service commission. He was a strong supporter of careful separation of state and federal powers, but also supported the idea that the U.S. Supreme Court was the final arbiter of constitutional questions (Hendel 1997, 1896). Charles Evans Hughes served two terms of service on the U.S. Supreme Court, from 1910 to 1916 as associate justice, and from 1930 to 1941 as chief justice. President William Howard Taft first nominated Hughes to the Court on April 25, 1910. His selection garnered widespread support, with the exception of concerns of William Jennings Bryan, who expressed fears that Hughes was too closely linked to private corporations. Hughes was confirmed without difficulty, however, and took his seat on October 10, 1910. He ended this period of service when he resigned on June 10, 1916, to accept the Republican nomination for president. During this first period of service, Hughes authored or participated in a number of important opinions having to do with the economic issues of the period. He was a strong supporter of broad congressional control of interstate commerce, particularly where railroads were concerned. He was willing to support limitations on liberty of contract when this was necessary to achieve certain social reforms. He was also sen-

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sitive to issues involving minorities, although his commitment to the support of civil rights was not as strong as it would become in later years. No issue was more contentious for the Supreme Court in the early years of the twentieth century than that centered around the regulation of railroads, and, related to that, the interpretation of the commerce clause and the extent of the powers of the Interstate Commerce Commission. Soon after joining the Court, Justice Hughes wrote an opinion that had important ramifications both for railroad regulation and for the benefits of labor. In Baltimore and Ohio Railroad v. Interstate Commerce Commission (1911), he ruled that its power under the commerce clause enabled Congress to regulate the hours of railroad employees. In two extremely important cases, he expanded the reach of Congress to regulate intrastate railroad rates when the traffic in question was linked to interstate commerce. In the Minnesota Rate Cases (1913) he said that Congress could control such rates in order to systematize interstate regulations. In the Shreveport Rate Cases (1914), Justice Hughes wrote what one historian has labeled the most famous of his early opinions (Abrams, 238). Here the Court considered cases from Louisiana where the state had set intrastate rates much lower than the rates for traffic covering approximately the same distance, but originating in the state of Texas. The clear goal was to discriminate against the traffic coming from outside the state. Justice Hughes, for the majority, sustained the ruling of the Interstate Commerce Commission, which ordered Louisiana to apply the higher interstate rates to the intrastate traffic as well. This ruling broadened both the interpretation of the commerce clause and the power of the Interstate Commerce Commission to operate under it. In reviewing these opinions, one historian wrote that Justice Hughes “clearly qualifies as one of the outstanding liberal members of the Court during his initial period of service” (Hendel 1997, 1901). During his first period of service, Justice Hughes also wrote important decisions that reflected his willingness to limit the power of the doctrine of freedom of contract in order to achieve social reforms that he considered important. In Bailey v. Alabama (1911), he was willing to butt heads with brethren such as Oliver Wendell Holmes Jr. over the constitutionality of an Alabama law that made it a crime for a laborer to fail to complete the obligations he had agreed to in a labor contract. The law in question had been challenged as a violation of the Thirteenth Amendment ban on involuntary servitude. Although Justice Holmes argued that the penalty was reasonable in a system where employers often had trouble getting workers to honor their obligations, Justice Hughes for the majority ruled that the law was, in fact, designed to be discriminatory toward black workers and should be overturned. In 1915 in Miller v. Wilson, Hughes upheld a California law that limited women in certain types of employment to eight hours per day. He rejected the argument that this law violated the

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doctrine of freedom of contract, saying that the contention was superseded by the importance of the public interest. Finally, Hughes rejected an Arizona law that attempted to control the percentage of aliens who could be employed in the state. In Truax v. Raich (1915), he said that such restrictions interfered with the authority of the federal government to control aliens. In the summer of 1916, Justice Hughes left the Court to take on the challenge of opposing President Woodrow Wilson’s bid for reelection. As the Republican candidate, Hughes fought an uphill battle and failed to convince the voters that he could improve upon Wilson’s efforts to keep the nation out of war. After being defeated, Hughes returned to private practice, concentrating on corporate law, until 1921, when President Warren G. Harding tapped him to become his secretary of state. Hughes served as head of the State Department from 1921 to 1925, under Presidents Harding and Coolidge. In a period when much of the country favored an isolationist stance, Hughes made major strides in trying to develop and implement a realistic foreign policy. He was not able to persuade President Harding to support U.S. membership in the League of Nations, but he did achieve U.S. participation in the efforts of the World Court. In 1921–1922 he hosted the Washington Naval Conference, which resulted in major treaties establishing guidelines for disarmament polices for the world’s leading powers and an agreement to continue to respect the Open Door principle in regard to China. Hughes resigned his post in the State Department in 1925 in order to return to private practice. He later agreed to serve as judge of the Permanent Court of International Justice from 1928 to 1930. On February 3, 1930, President Herbert Hoover nominated Hughes to succeed William Howard Taft as the chief justice of the United States. This appointment faced some considerable opposition in the Senate from people who felt he was too closely linked to powerful corporations. He was confirmed, however, by a vote of 52–26, and took his seat on February 24, 1930. Hughes served as chief justice for eleven years, leading the Court through one of the most turbulent periods in its history. During this period of service he wrote majority opinions in 283 cases, and dissents in 23. He also coordinated the Court’s strong response to President Franklin D. Roosevelt’s effort to “pack” the Court in 1937. Hughes sustained and strengthened his record as a strong supporter of civil liberties with a series of opinions that supported the application of federal Bill of Rights protections to the states. His first such opinion came in 1931 in Stromberg v. California, in which he struck down a California law making it a crime to display a red flag, the symbol of the Communist Party. During the depths of the Great Depression, when many feared the growth of political opposition, Hughes wrote, “The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful

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means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system” (Stromberg, 369). Later in the decade Hughes repeatedly defended the right of Communists to meet and to discuss openly their political beliefs. In De Jonge v. Oregon (1937) he overturned a state statute requiring conviction of any person who assisted in conducting a meeting in which participants advocated criminal syndicalism or sabotage. In Herndon v. Lowry in the same year, he joined the majority in rejecting a Georgia statute under which a black Communist had been convicted. Hughes also participated in decisions that extended other Bill of Rights guarantees to the state level and opposed those that did not. In 1931 he dissented from a majority opinion that denied citizenship to anyone who was unwilling to bear arms. In a major First Amendment case, Hughes wrote the opinion of the Court in Near v. Minnesota (1931), the first case in which the Court agreed that the guarantee of freedom of the press might be applied to the states through the due process clause of the Fourteenth Amendment. He also supported the protection of the right to counsel in the case of the Scottsboro boys (Powell v. Alabama [1932]). Hughes’s liberal inclinations were not as clearly visible in his response to the groundbreaking programs of the New Deal. Although he did not line up squarely with his most conservative brethren, Hughes seems to have been determined first, to hold true to his own economic views, and second, to take seriously his obligations as chief justice to keep the Court focused on constitutional questions, rather than their own political proclivities. Two early decisions, in which he raised the hopes of some that he would side with Roosevelt’s philosophy, proved not to be harbingers of his overall view of the New Deal programs. Although he voted with the majority in overturning many of the key programs of the New Deal, in a number of cases Hughes was careful to explain in separate opinions his views on the given issues. It was also his strong guiding hand that steered the Court through the period in 1937 when the justices began to approve important pieces of innovative legislation. It was Justice Hughes’s opinion in Home Building and Loan Association v. Blaisdell (1934), which encouraged some Court observers to hope that the justices would accept President Roosevelt’s arguments that the Great Depression constituted a period when emergency powers should be exercised and innovative solutions to economic problems adopted. Hughes, in approving the Minnesota Mortgage Moratorium Act, wrote, “While emergency does not create power, emergency may furnish the occasion for the exercise of power” (426). This was followed shortly by a second encouraging opinion in which the chief justice joined. In Nebbia v. New York (1934), the Court agreed that reasonableness could be used as the criterion for setting prices on milk. In responding to a series of cases testing the constitutionality of the gold clause resolution, a decision by Congress that nullified contractual requirements that financial

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obligations must be met in gold, Chief Justice Hughes also wrote opinions that sustained the Roosevelt administration’s efforts to come to grips with the economic crisis. In Norman v. Baltimore and Ohio Railroad (1935), and Perry v. United States (1935), Hughes wrote majority opinions that ruled that the gold clause provision applied to private contracts and to those made by states or their subdivisions. He also concluded in Perry that the federal government could not be required to meet its obligations in gold. Despite these supportive decisions, Hughes was not willing to give blanket approval to Roosevelt’s innovative programs. In Louisville Joint Stock Land Bank v. Radford (1935), he wrote for a unanimous Court in invalidating the Frazier-Lemke Act, which was intended to help farm mortgage debtors. The Court concluded that the law went far beyond resolving what might be considered a true financial emergency. In Schecter Poultry Corporation v. United States (1935), Chief Justice Hughes’s opinion for a unanimous Court invalidated the National Recovery Act, stating that the law had far overreached the power of Congress to regulate business under the commerce clause. Hughes also concurred in the majority opinion invalidating the Agricultural Adjustment Act, in United States v. Butler (1936), which argued that the program both violated the common law rule that government could not take money from one group in order to give it to a second, and invaded powers reserved for the states. Hughes penned a separate opinion in support of the Court’s ruling that the Bituminous Coal Conservation Act of 1935 far exceeded the powers of Congress under the commerce clause (Carter v. Carter Coal Company [1936]). Events of the spring of 1937 proved to be particularly challenging for Chief Justice Hughes’s leadership of the Supreme Court. In February, President Roosevelt presented to the Congress his plan for altering the membership of the Court, ostensibly to relieve its members of overwork, but in reality to give himself the opportunity to add to the Court appointees who were likely to support his liberal programs. Chief Justice Hughes took the unusual step, at the urging of Justice Willis Van Devanter and others, of writing to the Congress to express the Court’s opposition to the proposal. During the same period, the Court issued a series of opinions that indicated a new tolerance for the views of the Roosevelt administration on the role of government. For example, in West Coast Hotel Company v. Parrish (1937), which concerned a minimum-wage law enacted by the State of Washington, the chief justice indicated a willingness to give states broad latitude in enacting such social legislation. A short time later, Hughes upheld the National Labor Relations Act in an important opinion in National Labor Relations Board v. Jones and Laughlin Steel Corporation (1937). Here the Court issued a strong endorsement of the right of labor to organize and bargain collectively, and of the government to take steps to protect such rights. The ruling also strengthened the power of Congress to act in this area without running the risk of being accused of infringing on rights reserved to the states.

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On June 2, 1941, at the age of seventy-nine, Chief Justice Hughes wrote to President Roosevelt indicating his intention to resign, effective July 1, 1941. Hughes died August 27, 1948, on Cape Cod, Massachusetts. He was interred at Woodlawn Cemetery in New York City.

Horace Harmon Lurton (1844–1914) Horace Harmon Lurton was born February 26, 1844, in Newport, Kentucky, to Lycurgus Leonidas and Sarah Ann Lurton. His father was a doctor who later became a Protestant Episcopal minister. While Horace was still a small child, the family moved to Clarksville, Tennessee, which became his home from then on. Lurton attended local schools in Clarksville, and then attended Douglas University in Chicago. His education was interrupted by service in the Civil War, after which he earned a law degree from Cumberland University Law School in Lebanon, Tennessee, graduating in 1867. The outbreak of the Civil War prompted Lurton to return to Tennessee in 1861, where he promptly joined the Fifth Tennessee Infantry Regiment. After a few months’ service, during which he earned promotion to the rank of sergeant-major, he contracted a lung infection, which prompted a medical discharge. After recuperating at home, he enlisted in the Second Kentucky Infantry and fought to defend Nashville until he was taken prisoner by Union forces early in 1862. After a short time he escaped from Camp Chase in Columbus, Ohio, and joined the forces of General John Hunt Morgan, with which he served until again being taken prisoner in 1863. He remained in Union hands until being released shortly before the war’s end because of a recurrence of the lung disease. Upon completion of his legal training, Lurton set up practice in his hometown of Clarksville, where he remained from 1867 to 1886, except for a three-year period, 1875–1878, during which he served as one of the judges for the Sixth Chancery Division of Tennessee. In addition to having his law practice in Clarksville, Lurton became president of the Farmers’ and Merchants’ National Bank and a church vestryman. He was also elected a trustee for the University of the South in Sewanee, Tennessee. While pursuing the long judicial service that characterized a major part of his career, Lurton taught part-time at the Vanderbilt University Law School, beginning in 1898, and served as dean of the law school from 1905 to 1910. Lurton’s judicial career began with a term as chancery judge in the 1870s, then continued in 1886 when he was elected a member of the Tennessee Supreme Court on the Democratic ticket. He became chief justice of the Tennessee Supreme Court in 1893, but held that position for only a few months before accepting President Cleveland’s appointment to the U.S. Court of Appeals for the Sixth Circuit in Cincinnati. It

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Horace Lurton (Harris & Ewing, Collection of the Supreme Court of the United States)

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was here that he became friends with William Howard Taft, then presiding judge on that court. It was on December 13, 1909, that President Taft nominated Lurton to the U.S. Supreme Court to replace Justice Rufus Peckham. The nomination aroused some surprise among Court observers, given that Taft, a Republican, so honored a Southern Democrat and Confederate veteran. Lurton, at sixty-five, was also the oldest man ever to be nominated to the Court. Lurton’s appointment aroused some opposition, chiefly from organized labor, particularly Samuel Gompers and the leadership of the Brotherhood of Railroad Trainmen. Taft, however, was not to be deterred from his decision. He wrote to Lurton, “It is just the simple truth that the chief pleasure of my administration, as I have contemplated it in the past, has been to commission you a Justice of the Supreme Court” (quoted in Pratt 1999, 11). The nomination was confirmed, and Lurton took his seat on the Court on January 3, 1910. Justice Lurton’s style as a jurist has been frequently described as courteous, pleasant, and gentlemanly. He developed close friendships with William Howard Taft and William R. Day on the Sixth Circuit Court of Appeals, which carried on to their days together on the U.S. Supreme Court. Although confident and self-assured in the expression of his opinions, he preferred to avoid controversy and was a strong advocate of unanimity of opinions whenever possible. A traditionalist in interpreting the Constitution, Justice Lurton did not believe in creative interpretation or judicial legislation. His own work was based very much on judicial precedent, and on thorough and painstaking research into the historical record. He generally tried to keep expressions of his personal philosophy out of his opinions, although some attributed his devotion to such principles as states’ rights to his Southern heritage. He was not regarded then, or later, as a groundbreaking thinker or interpreter of the Constitution. A speech Lurton made in 1911 to a meeting of the Maryland and Virginia Bar Associations, and later published in the North American Review under the title “A Government of Law or a Government of Men,” is often cited as a telling source of insights concerning Lurton’s judicial views. Here he argued that, were the Court to uphold all manner of social reform legislation to satisfy the tenor of the times, the Constitution would seize to be a bulwark, and instead the country would succumb to direction by a “government of men.” Justice Lurton proved to be a supporter of the regulation of business under the Sherman Act, although he also voted with the majority in the two cases in 1911 that established the rule of reason. Lurton wrote two significant opinions that reflected his position on the implementation of the Sherman Act. In United States v. Reading Railroad Company (1912), Lurton wrote an opinion requiring the breaking up of a combination that had been created by railroads in the coal-mining and coal-hauling business. The goal of the creation of the holding company was to permanently wipe out competition from independent companies that sought to acquire a portion of the hauling

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business. In United States v. Terminal Railroad Association of St. Louis (1912), Lurton’s opinion for the unanimous Court found that the association had, in fact, established control of all rail access to St. Louis. He found this to be in restraint of trade and ordered the organization dissolved. Although Lurton was not a strong supporter of progressive or judicial reform legislation, he did vote in favor of some such congressional action. He joined the majority in approving the Pure Food and Drug Act through its opinion in Hipolite Egg Company v. United States (1911), and he supported the Hepburn Act increasing the power of the Interstate Commerce Commission in the Minnesota Rate Cases (1913). Perhaps attributable to his background as a Southern Democrat was Lurton’s lifelong support of the doctrine of states’ rights. This can be seen, for example, in his majority opinion in Coyle v. Oklahoma (1911), in which he upheld the state’s decision to move its capital from Guthrie to Oklahoma City, in violation of a provision in the congressional act granting statehood, which barred it from doing so. Lurton stressed the independence of operation and equality of status of the states as justifying the decision. Although Lurton wrote only ninety-seven majority opinions during his time on the Court, and is generally regarded as not having been a groundbreaking thinker, historians do give him credit for several significant rulings. Foremost among these is his opinion in United States v. Chandler-Dunbar Water Power Company (1913), having to do with government control over navigable waterways. The case concerned a congressional act passed in 1909 claiming for the U.S. government ownership of all property north of the Saint Marys Falls Ship Canal in Michigan, reaching to the country’s international boundary line with Canada. The secretary of war was authorized by the act to acquire the property through condemnation. The Chandler-Dunbar Water Power Company, which owned property in the area in question and used the waterpower of the river to produce electricity, rejected the government’s proffered compensation. Justice Lurton ruled in favor of the federal government’s power over navigable waterways, arguing that that control included not only the waterway itself but the disposition of any flow of water in excess of that required for navigation. He said that any claims by private corporations or individuals must always be secondary to the needs of the government, and that the federal government owed Chandler-Dunbar no compensation. The significance of the opinion lay in the expansion of congressional control over navigable waterways. Lurton ruled that Chandler-Dunbar was entitled to compensation only for the land it owned along the banks of the river. A second significant opinion penned by Lurton came in 1912 in the case of Henry v. A. B. Dick Company. This case involved the extent of control a patentee could exercise over the use of his invention. A. B. Dick had invented and marketed a widely used duplicating machine. As part of the terms of licensing and sale, Dick required the users

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of his machines to purchase ink and other supplies from him. When a salesman named Henry sold a client some of his own ink for use in one of Dick’s machines, the company filed suit against him, claiming patent infringement. Henry responded that Dick’s requirements constituted a violation of freedom of contract. Lurton’s opinion upheld the rights of the patent holder, arguing that the patent law allowed Dick to attach such restrictions to the sale and use of his invention. The opinion prompted a spirited dissent penned by Chief Justice White, calling on Congress to amend the patent act to prevent such restrictions. Congress responded by including in the Clayton Anti-Trust Act of 1914 a provision banning restrictions by a seller that might infringe on competition. Historians who have attempted to evaluate Justice Lurton’s record in the area of civil rights have been unable to discern a strong trend in any direction. As an appeals court judge in 1903, in Karem v. United States, he ruled against a federal statute making it a crime for individuals to conspire to keeps blacks from voting. The opinion was not of great significance, however, because it generally repeated earlier Court rulings that the Reconstruction amendments allowed Congress to regulate only state action, not that of individuals. In Bailey v. Alabama (1911), he joined Holmes in dissent against an opinion that had overturned a state debt peonage law. Lurton’s opinions in this area generally reflect his conservative political views, rather than any taint of racism. That he was willing to support opportunities for blacks is indicated by his recommendation of J. C. Napier, a black man from Nashville, for appointment to the position of registrar of the United States. He wrote to President Taft that he considered Napier “the best representative of the colored race south of the Ohio River,” and would like to see him attain this office, which was generally reserved for blacks (Bickel and Schmidt 1984, 341). Though some people questioned Lurton’s stamina and ability to shoulder the workload of a Supreme Court justice, given his age, Lurton was willing not only to participate actively in the Court’s consideration of cases but also to take on other responsibilities. He worked with a committee of other justices in drafting a new code of equity rules, which were published in 1913 under the title New Federal Equity Rules, the volume being dedicated to Lurton. In spite of his best efforts, Lurton found that his health did begin to fail after he had served only a few years on the Court. He became ill in December 1913 and was absent from the bench until the following April. He then returned and was able to complete the session. In the summer of 1914, while vacationing with his family in Atlantic City, New Jersey, Lurton was stricken by a heart attack and died within a few hours, on July 12, at the Marlborough-Blenheim Hotel. His body was returned to Clarksville, Tennessee, for burial in the Greenwood Cemetery, in services attended by the chief justice and other dignitaries from Washington.

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Joseph Rucker Lamar (1857–1916) Joseph Rucker Lamar was born October 14, 1857, in Ruckersville, Georgia, to James S. and Mary Rucker Lamar. His father was a Presbyterian minister. Lamar was a member of a distinguished family that included former U.S. Supreme Court justice Lucius Quintus Cincinnatus Lamar, who served from 1888 to 1993, and the poet Mirabeau Lamar, who served as president of the Republic of Texas from 1838 to 1841. Lamar was educated in a series of private schools in the South before enrolling in college. He attended Richmond Academy in Augusta, Georgia, Martin Institute in Jackson Court, Georgia, and Penn Lucy Academy in Baltimore, Maryland. In 1874 he entered the University of Georgia, but he left after two years because of illness. He eventually graduated from Bethany College in West Virginia in 1877, then studied law for a time at Washington and Lee University in Lexington, Virginia, but did not graduate. Lamar continued his study of the law under the tutelage of Henry Clay Foster, a prominent attorney in Augusta, Georgia, and passed the Georgia bar exam in April 1878. He then taught Latin for a year at Bethany College before beginning the practice of law. In 1880 he became the partner of his former mentor, Henry Clay Foster, and the two worked together until the latter’s death in 1890. Not long after entering the practice of law, Joseph Rucker Lamar followed family tradition and entered politics. From 1886 to 1889, he represented Richmond County in the lower house of the Georgia state legislature. The interest he exhibited in law reform during this time led the governor and the state supreme court justices to appoint him in 1893 as one of the commissioners to rewrite the state’s law codes. He is given major credit for the revised civil code adopted in 1895 (Dinnerstein 1997, 1975). In 1898 he was appointed to the state examining board for bar applicants, a position he held for most of the period he was appointed to the U.S. Supreme Court. He served as the examining board’s president from 1905 to 1910. Lamar was also an amateur historian. He wrote numerous articles on Georgia’s legal history, including some of the first analyses of the state’s legal system during the colonial period. He wrote also on such topics as “Georgia’s Contribution to Law Reform,” “Georgia’s Law Books,” and “Work and Position on the American Court.” Because of his knowledge and research, Lamar was frequently called upon to give addresses before legal groups in Georgia and other southern states. Joseph Lamar began his judicial career when he was appointed to the Georgia Supreme Court in December 1902. He ran successfully for reelection in 1904. He served in that capacity until 1905, when he resigned for a variety of personal reasons. He returned to private practice, forming a partnership with E. H. Calloway in which he specialized in corporate law, representing, among others, various railroad companies. Lamar’s appointment to the U.S. Supreme Court seems to have been triggered by a chance meeting with President William Howard Taft in 1908. Taft was vacationing in

Joseph Lamar (Harris & Ewing, Collection of the Supreme Court of the United States)

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Augusta, Georgia, where he met and played golf with Lamar. In 1910 Taft considered Lamar for a vacancy on the Commerce Court, but he eventually nominated him on December 12, 1910, to fill the seat vacated by William Moody. Lamar’s appointment was confirmed three days later, and he took his seat on the Court on January 3, 1911. Lamar was not one of the Court’s most influential members during the four years he served. Historian Leonard Dinnerstein says that his opinions “do not lend themselves to neat classifications” (Dinnerstein, 1981). He generally voted to uphold broad powers for the rights of the federal government, sometimes at the expense of the states. Like a number of his colleagues on the Court, he was a strong supporter of the rights of business, and thus a foe of governmental regulation in that area. Lamar also wrote several opinions in which he upheld the rights of individuals. Lamar’s most prominent decisions supporting the rights of the federal government included that in Degge v. Hitchcock (1913), in which Lamar wrote a majority opinion rejecting an effort to secure a writ of certiorari that would have allowed the plaintiff to review the actions of the U.S. postmaster general. Lamar argued that such action would have subjected federal officials to the mercy of the courts. Lamar wrote a number of opinions in which he upheld the doctrine of administrative discretion, the theory upon which Congress has based its creation of a variety of federal agencies and commissions to which it had given specialized powers. He wrote the majority opinion in United States v. Grimaud (1911), upholding the Forest Reserve Act of 1891. This decision is generally recognized as giving the Court’s stamp of approval to the delegation of broad powers to federal agencies for the performance of specialized functions. Lamar also approved of the president’s exercise of power to remove public land from eligibility for sale to the public. Although his opponents said Congress had never granted such power, Lamar pointed to the long tradition of such actions by previous presidents (United States v. Midwest Oil Company [1915]). Justice Lamar also authored a number of opinions in which he supported strengthening the role of the Interstate Commerce Commission through interpretation of the Hepburn Act of 1906. In several cases concerning alleged discrimination by railroad companies, Lamar argued that the Supreme Court should not hear the cases until the parties involved had obtained expert opinions from the ICC. He believed that in such cases the specialized knowledge of the administrative agency was the best resource for determining whether rates were, in fact, discriminatory (Mitchell Coal and Coke Co. v. Pennsylvania Railroad [1913] and Morrisdale Coal Company v. Pennsylvania Railroad [1913]). In Interstate Commerce Commission v. Louisville and Nashville Railroad (1913), Lamar, following the lead established by the Court in earlier opinions, endorsed the power of the ICC to regulate railroad rates. Lamar was not, however, willing to accept all government regulation of business unquestioningly. In a case originating in Kansas, he dissented strongly from the majority opinion, which approved state regulation of insurance rates. In German Alliance

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Insurance Company v. Lewis (1914), he argued that the majority’s acceptance of an expanded definition of the doctrine of “business affected with a public interest” was becoming so broad as to allow government regulation of most enterprises, a possibility that he viewed with alarm. One of Lamar’s most famous opinions came in a labor dispute involving Samuel Gompers, the famous head of the American Federation of Labor. Gompers v. Buck’s Stove and Range Company (1911) challenged the use of injunctions in labor disputes. Gompers contended that an injunction forbidding the union’s use of printed fliers to promote a secondary boycott violated the First Amendment protection for freedom of expression. Lamar’s ruling in favor of the employer undermined the use of boycotts by unions. His opinion made clear his distaste for the power that could sometimes be wielded by the unions: The very fact that it is lawful to form these bodies, with multitudes of members, means that they have thereby acquired a vast power, in the presence of which the individual may be helpless. This power, when unlawfully used against one, cannot be met, except by his purchasing peace at the cost of submitting to terms which involved the sacrifice of rights protected by the Constitution; or by standing on such rights and appealing to the preventive powers of a court of equity. When such appeal is made it is the duty of the government to protect the one against the many as well as the many against the one. (Gompers, 439)

In a variety of civil liberties cases, Lamar established a voting record that was more liberal than those of most of his colleagues at the time. For example, he dissented in Qong Wing v. Kirkendall (1911). This case concerned a Montana law under which the state taxed men operating hand laundries. Although it was apparent to most observers that the law was aimed at Chinese businessmen who could not afford the more sophisticated laundry machines, neither Lamar nor any of his colleagues mentioned the race factor in the case. Instead, they argued that the law was arbitrary and discriminatory because it taxed some, but not others. Lamar upheld the rights of Native Americans in a case, Choate v. Tropp (1912), in which he wrote the majority opinion. Oklahoma had passed a law that taxed Native Americans living on land that Congress had granted them tax-free. The state argued that the tax exemption was not permanent, but could be altered at will. Lamar upheld the original interpretation of the grant. Justice Lamar compiled a mixed record on civil rights issues. During his service on the Court, Lamar opposed claims of constitutionality by African Americans (Bickel and Schmidt 1984, 779). Although he concurred in the Court’s opinion affirming a lower court’s approval of separate but equal railroad cars in Oklahoma, this was more an acceptance of the argument that the litigants did not have standing to be heard

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before the U.S. Supreme Court than it was an agreement that blacks were deserving of fair treatment. Even though Lamar served on the Court for a relatively short time, historian Leonard Dinnerstein says his colleagues thought highly of him (Dinnerstein 1997, 1987). He was awarded a Doctorate of Laws by Yale University in 1911. President Woodrow Wilson indicated his respect for Lamar by naming him in 1914 to head a delegation to negotiate a resolution to the diplomatic conflict with Mexico. Lamar’s service came to an end in 1915 when illness prevented his return to the Court in the fall of that year. A series of complications led to his death on January 2, 1916. Justice Lamar was interred in Sand Hills Cemetery, Augusta, Georgia.

Willis Van Devanter (1859–1941) Willis Van Devanter was born April 17, 1859, in Marion, Indiana, the son of Isaac and Violetta Spencer Van Devanter. His father was a lawyer and an abolitionist who served as a provost marshal in Indiana during the Civil War. Willis was educated in the Marion public schools, then enrolled in Indiana Asbury (later DePauw) University, from which he graduated. In 1879 he entered the University of Cincinnati Law School and graduated from there in 1881. Upon completing his education, Van Devanter returned to Marion, where he joined his father’s law firm, Lacey and Van Devanter. During the three years he spent with the firm in Marion, he also served as an assistant prosecuting attorney. Upon his father’s retirement, Willis Van Devanter migrated west in 1884 to settle in Cheyenne, Wyoming. He began the practice of law in Cheyenne, joining with Charles N. Potter in 1887 to found a firm that soon began to attract railroad corporations, including the Burlington and the Union Pacific, as clients. Building on his experience in, and knowledge of, the Wyoming Territory, Van Devanter became involved in politics as part of a Republican machine run by Francis E. Warren. In 1886 he was appointed to a commission to codify the territorial statutes of Wyoming. After having served as Cheyenne city attorney for two years, he was elected to the territorial legislature in 1888, where he served as chair of the judiciary committee. In 1889 President Benjamin Harrison appointed him chief justice of the Territorial Supreme Court, a position he held until Wyoming achieved statehood in 1890. He then returned to private practice, spending a great deal of his time representing the interests of the Union Pacific Railroad against claims by laborers, Native Americans, and others. In the 1890s Van Devanter continued to participate actively in the Republican Party at both the state and national levels. In 1897 he moved to Washington to take a post in the Department of the Interior, where his experience with Indian affairs and

Willis Van Devanter (Harris & Ewing, Collection of the Supreme Court of the United States)

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public lands stood him in good stead. At the same time he taught courses in equity jurisprudence at Columbian (later George Washington) University. In 1903 President Theodore Roosevelt appointed him to a seat on the Court of Appeals for the Eighth Circuit. President William Howard Taft nominated Willis Van Devanter for a seat on the U.S. Supreme Court on December 12, 1910, to replace Edward Douglass White, whom he had recently promoted to the position of chief justice. Despite opposition to his nomination from William Jennings Bryan and various Progressive reformers, Van Devanter was confirmed and took his seat on January 3, 1911. Van Devanter was not one of the leading figures on the Court during his twentysix years of service. Compared with his brethren, he was one of the less productive justices, authoring only 346 opinions during his years there. This lack of productivity has variously been attributed to his suffering from writer’s block, or, less generously, having no solid judicial philosophy that served to inform important decisions. Van Devanter made his most valuable contributions in the areas in which he had developed expertise as a resident and attorney in Wyoming: Indian claims, disputes over public land, labor laws, and matters involving railroads and other corporations. Although he had become experienced in legal matters involving Indians during his years in Wyoming, Van Devanter cannot be said to have been particularly sympathetic to their concerns. In his work for the railroads, he sometimes handled disputes over the disposition of lands that had been assigned to Native Americans as the result of treaty agreements. In 1896 he argued unsuccessfully before the U.S. Supreme Court, in Ward v. Race Horse, that the granting of statehood to Wyoming had superseded treaty grants of territories to Native Americans living within that area. Van Devanter added to his expertise in Indian affairs during his stint as assistant attorney general in the Department of the Interior in the late 1890s. While he served on the U.S. Supreme Court, Justice Van Devanter’s colleagues were often willing to defer to him when matters dealing with Indian issues arose. Although he may have by that time, as historian David Burner has written, “continued to have at least some special feeling for minority groups,” this was not always in evidence in his opinions (Burner 1948). In United States v. Sandoval (1913), he upheld a prohibition against bringing alcoholic beverages into an Indian community, referring to studies that reached unfavorable conclusions about Indians’ intellect (Shoemaker 1994, 485). In United States v. Quiver (1916), Van Devanter argued for the Court that Indians under congressional regulation were subject to tribal, rather than state, laws. As an attorney practicing in Wyoming, Van Devanter soon became well versed in the law surrounding the disposition and use of public lands. In the 1890s he represented the Union Pacific Railroad in disputes over fraudulent land surveys in Wyoming and Montana. His expertise in this area provided one of the bases for his appointment at the Department of the Interior. During his years on the Eighth Circuit Court of

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Appeals and the U.S. Supreme Court, Van Devanter authored a number of opinions dealing with land issues, such as that in Burke v. Southern Pacific Railroad (1914), in which he ruled that the U.S. Land Office could not rescind grants of land to the railroad because the property in question was later found to possess significant deposits of valuable minerals. Although Van Devanter could not be characterized as a liberal Progressive reformer, he was willing under certain circumstances to uphold social reform legislation and constitutional amendments. He generally interpreted the Constitution broadly to support and enhance the exercise of national power. That this sometimes enabled him to endorse efforts that he personally favored was a serendipitous result. Beginning in the 1890s, Van Devanter repeatedly had occasion to act in response to conflicts between laborers and their employers. His efforts to help subdue striking Idaho miners during an uprising that spread into Wyoming in 1894 was indicative of his inclination both to support law and order and to favor the businessman. A key opinion he wrote while a judge on the Court of Appeals for the Eighth Circuit reflected his adherence to the common law governing the relationship between master and servant. Writing in Portland Gold Mining Co. v. Duke (1908), he ruled against the claim of an employee who had been injured through no fault of his own. Van Devanter cited the common law rule that, “as between Master and servant, the duty of so using a reasonably safe place, of so operating reasonably safe machinery, and of so conforming to an established and reasonably safe method of work, that injury will not be inflicted negligently, is those to whom the work is intrusted, and is no positive duty of the master” (Portland, 180). After having joined the U.S. Supreme Court in 1910, Van Devanter wrote two opinions upholding Progressive efforts to enact federal legislation requiring employers to assume liability for their workers. In the first case, Kiernan v. Portland (1911), Van Devanter indicated the Court’s support for the portion of the initial federal liability law that applied to workers engaged directly in interstate transportation or commerce. Once Congress had revised the law to meet concerns the Court had expressed in its opinion in the Employers’ Liability Cases (1908), Van Devanter was able to write a second opinion endorsing wholeheartedly the new legislation. In the Second Employers’ Liability Cases (1912), Van Devanter ruled that Congress could regulate virtually every phase of interstate commerce. He echoed this sentiment in Schaffer v. Farmers’ Grain Company (1925), in which he said a state government could not interfere with interstate commerce by regulating grain elevators that handled grain that was almost entirely shipped to other states. It fell to Justice Van Devanter to draft the Court’s opinions on the constitutionality of two of the four constitutional amendments passed by the Progressive reformers between 1900 and 1920. Van Devanter upheld both. Evans v. Gore (1920) tested the Sixteenth Amendment, which had been ratified in 1913, giving Congress the power to

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levy income taxes. This particular case questioned whether the tax could be applied to the income of judges. Justice Van Devanter responded that, first, the income tax was constitutional, since the amendment had been passed and ratified under the guidelines established in the Constitution. In the matter of taxing the income of judges, however, the answer was not quite as simple. The tax could apply to the income of judges, Van Devanter wrote, with the exception of those who had been upon the bench at the time the income tax law was passed, since the Constitution provides that a judge’s pay may not be diminished during his time on the bench. Justice Van Devanter likely had no problem ruling on the Eighteenth Amendment banning the manufacture, transportation, and sale of alcohol throughout the United States, since he was a committed supporter of prohibition. He, therefore, wrote the opinion in Rhode Island v. Palmer (1920) upholding the amendment’s constitutionality. He later voted with the majority in another case in which they upheld a law limiting the subscribing of alcohol for medicinal purposes. In 1929 President Hoover named him head of a commission to settle a dispute between the United States and Canada over the sinking by the U.S. Coast Guard of a Canadian rumrunner. In spite of Van Devanter’s views on alcohol, the commission ruled in favor of the Canadians and recommended payment of an indemnity by the U.S. government. Justice Van Devanter was not a strong supporter of the Court’s efforts to strengthen civil liberties protections through the nationalization of the Bill of Rights. In 1927 he wrote a significant opinion upholding the rights of congressional committees to arrest witnesses who refused to honor the committees’ subpoenas. In McGrain v. Daugherty (1927), Van Devanter said that the committees had only to show that their actions were related to the effort to carry forward an investigation that served a legitimate legislative purpose. In Near v. Minnesota (1931), the case in which the Supreme Court ruled that the First Amendment protection for freedom of the press applied as well to state actions, Van Devanter dissented, upholding the gag law that the state of Minnesota had placed on a recalcitrant newspaper editor. He also voted to uphold the use of the white primary in Texas in Nixon v. Condon (1932). Whatever Progressive tendencies Van Devanter may have had disappeared entirely by the 1930s. When Franklin D. Roosevelt became president and Congress began to enact his New Deal program, Van Devanter joined forces with three of his conservative brethren, Justices Sutherland, Butler, and McReynolds, to strike down major components of the program. Although he supported the majority opinion in Home Building and Loan Association v. Blaisdell (1934), upholding a mortgage moratorium in a decision that some thought might signal the Court’s sympathy for creative legislation designed to bring the country out of the Depression, this was not the beginning of a pattern. Van Devanter voted to strike down, among others, the Agricultural Adjustment Act, the National Recovery Act, the Wagner Act, the first FrazierLemke Act, the Guffy-Snyder Coal Conservation Act, and the gold clauses. He was also

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a strong supporter of Chief Justice Hughes’s efforts in the spring of 1937 to prevent the enactment of Roosevelt’s court-packing plan. In the spring of 1937 when a majority of the justices began to uphold some New Deal legislation, Van Devanter stuck to his beliefs. He wrote a dissent in National Labor Relations Board v. Jones and Laughlin Steel Corporation (1937), in which he argued that federal efforts to regulate labor-management relations in this case violated the commerce clause because the effect on interstate commerce was minimal. He voted against the Social Security Act in Steward Machine Company v. Davis (1937), saying the measure went far beyond the power of Congress to tax. He also joined three other justices in dissenting in West Coast Hotel Company v. Parrish (1937), subscribing to the argument that the state minimum wage law in question violated the due process clause. In spite of the fact that Van Devanter is often cited by historians as having been one of the weaker justices on the White Court, it is clear from their comments that his fellow justices had a certain amount of respect for his abilities. Although he did not write a great number of opinions, he was apparently distinguished by his performance in conference. Brandeis expressed his appreciation of Van Devanter’s “knowledgeable suggestions.” Justice Stone deemed him an expert on the intricacies of judicial procedure. Chief Justice Taft said that Van Devanter was modest, but was valued for keeping the Court focused on the law and on its interpretations, as well as on procedure. Taft’s view of Van Devanter’s strengths is also indicated by the fact that he recruited him to draft and argue before Congress for the passage of the Judiciary Act of 1925. Justice Van Devanter retired from the Court in the spring of 1937, shortly after the justices began to hand down rulings in support of New Deal legislation. It has been suggested by some that Van Devanter remained on the Court until new legislation allowed justices to retire at full pay. He moved to New York City, where he presided over the New York District Court. He died in New York City on February 8, 1941, and was interred in Rock Creek Cemetery in Washington, D.C.

Mahlon Pitney (1858–1924) Mahlon Pitney was born February 5, 1858, in Morristown, New Jersey. His parents were Henry Cooper Pitney, a lawyer and judge, and Sarah Louise Halstead Pitney. His family had lived in New Jersey since colonial times, and his great-grandfather, for whom he was named, fought in the Revolutionary War. Pitney was educated in private schools in Morristown and earned a bachelor’s degree from Princeton University in 1879. He studied law under his father’s guidance, and passed the New Jersey bar exam in 1882. Setting up his first practice in Dover in 1882, he became counsel, officer, and director of the Cranbury Iron Company. He returned to Morristown in 1889 to take

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over his father’s practice when the elder Pitney was named chancellor for the state of New Jersey. Having built a solid reputation as an attorney, the younger Pitney ran successfully for election to Congress on the Republican ticket from New Jersey’s Fourth District in 1894. He was a supporter of sound money principles and attracted the support of numerous “gold Democrats.” He was reelected in 1896 and served until January 5, 1899, when he resigned to accept election to the New Jersey Senate. He served in the Senate for two years, becoming its president in 1900. Pitney began his judicial career in February 1901 when he was appointed to the New Jersey Supreme Court. He served as a member of that body until 1908, when he followed in his father’s footsteps by accepting an appointment as chancellor of the state of New Jersey, a position he held until he was nominated to the U.S. Supreme Court in 1912. As was the case with a number of President William Howard Taft’s appointments, Pitney’s selection seems to have come about as a result of the two men’s meeting and hitting it off at a social occasion. President Taft met Pitney in February 1912 as he was considering candidates for the seat vacated by Justice John Marshall Harlan’s death in October 1911. A week later, on February 19, 1912, having reviewed Pitney’s record and talked with his supporters, Taft announced the nomination. The Senate approved the appointment on March 14, 1912, by a vote of 50 to 26. The choice was supported by both Republican regulars and Progressive Republicans. Pitney took the oath of office on March 18, 1912, and immediately entered into the work of the Court. Pitney served on the Court for ten years, authoring a total of 268 opinions. Of those, 244 were for the majority, 19 were dissents, and 5 were concurring opinions. Pitney is best known for his opinions in cases involving labor unions. Unlike some of his contemporaries, Pitney did exhibit some consistency in his opinions and the political and judicial philosophy they reflected. In his opinions concerning the relationship between business and labor unions, he was a strong supporter of the right to contract and of the right of states to regulate labor-employer relations (Hall 1992, 636). He wrote important opinions in support of the controversial use of injunctions against labor unions under the provisions of the Sherman Anti-Trust Act. The two opinions that best illustrate Pitney’s stand on these issues are Coppage v. Kansas (1915) and Hitchman Coal and Coke Co. v. Mitchell (1917). In Coppage v. Kansas, Pitney upheld a Kansas law outlawing yellow-dog contracts. The basis of his opinion was the doctrine of freedom of contract. He also relied heavily on the Court’s earlier ruling against a federal law banning yellow-dog contracts in Adair v. United States (1908). Pitney expressed his views on the issue succinctly: “Included in the right of personal liberty and the right of private property . . . is the right to make contracts for the acquisition of property. Chief among such contracts is that of personal employment, by which labor and other services are exchanged for money or other forms of property. If this right be struck down or arbitrarily interfered

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with, there is a substantial impairment of liberty in the long established constitutional sense” (Coppage, 14). In Hitchman Coal and Coke Co. v. Mitchell (1917), Pitney upheld the issuance of an injunction against a union that was attempting clandestinely to organize workers who had earlier agreed to refrain from such action. His concern in this case was the underhanded and coercive tactics being used by the union. Similarly, in Duplex Printing Co. v. Deering (1921), Justice Pitney wrote a majority opinion saying that the company whose products were the subject of a union boycott was entitled to an injunction against the union. The Clayton Act did not protect unions under such circumstances, since they were interfering with the interstate trade of the company involved (Wood, 240). Pitney was also inclined to take a narrow view of the potential use of the commerce clause to allow Congress to regulate working conditions. When the Court majority upheld the Adamson Act establishing wages and working hours for railroad employees, Pitney authored a strong dissent. In Wilson v. New (1917), he contended that the Adamson Act was strictly a wage law. Because it did not specifically ban workers from working more than eight hours per day, he argued that it did not have as a primary goal the safety of the workers. Therefore, he, said, the law did not have any “substantial relation to or connection with commerce” (Bickel and Schmidt 1984, 472). Pitney’s rulings against labor unions could, on occasion, be balanced with concerns for states’ rights. Such was the case in his dissent in 1921 in Truax v. Corrigan. The State of Arizona had passed a law protecting labor unions against injunctions when they were engaged in peaceful picketing. The majority ruled that picketing that interfered with the business of the establishment being picketed was not protected by the law. Pitney, joined by Clarke, favored the right of the states to determine the circumstances under which the law would be applied. Despite his opposition to many of the efforts of organized labor, Pitney was one of the court’s strongest supporters of the concept of workmen’s compensation. In his opinion in New York Central Railroad Co. v. White (1917), Pitney noted that requiring employers to provide insurance or bonds to compensate workers injured on the job flew in the face of long-accepted common law tradition. He also rejected the argument that such requirements violated the doctrine of liberty of contract. He wrote, instead, that workmen’s compensation acts were “A reasonable, and therefore valid, exercise of state police power” (Bickel and Schmidt 1984, 583). Pitney expanded his support for such protection in a subsequent opinion in Mountain Timber Company v. Washington (1917). In this case his opinion for the majority upheld a state law that did not give the employer the option of deciding whether to insure himself against employees’ workmen’s compensation claims. Referring to these opinions, Justice Louis Brandeis said, “Without Pitney, we would have had no workmen’s compensation laws” (Bickel and Schmidt 1984, 585).

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By the time Pitney joined the Court, the institution had already adopted a position of judicial restraint in regard to the regulation of railroads by the Interstate Commerce Commission. It is not surprising, therefore, that in two opinions Pitney wrote in this area, he took the position that the Court should not second-guess the ICC in setting rates and establishing other regulations (Kansas City Southern Railway v. United States [1913] and Manufacturers Railway v. United States [1918]). Some historians have also argued that Pitney made significant contributions through his opinions in matters of tax law. Most significant in this area is his opinion in McCoach v. Minehill Railway Company (1913). The Minehill Railway Company had leased its rails and equipment to another company in return for rent. It continued to manage other investments, and its stock was available in the market. Pitney agreed in his opinion that the company was no longer in business, and, therefore, not subject to the federal corporation tax. This decision set an important precedent, in that, a business, by leasing away its assets, could establish an argument that it was no longer subject to taxation. Both the federal and state courts followed this precedent for some time, gradually applying restrictions in its application (Bickel and Schmidt 1984, 248–250). In another tax-related opinion in Eisner v. Macomber (1920), Justice Pitney ruled that stock dividends were not income, and, therefore, were not taxable under the terms of the Sixteenth Amendment. This opinion created a long-term ripple effect in which the Court was asked to rule not only on the nature of dividends, but of split capital gains and other forms of income (Bickel and Schmidt 1984, 204–210). In the civil liberties cases that came before the Court as a result of the World War I–era legislation, Pitney’s conservative bent was much in evidence. He supported the government’s position consistently, most notably in his opinion in Pierce v. United States (1919). Here Pitney sustained the conviction under the Espionage Act of 1917 of individuals who had circulated an antiwar pamphlet by a prominent Episcopalian clergyman. Pitney argued that the pamphlet could have damaging effects because some of the opinions expressed in it were false, particularly those about the causes of the war: Common knowledge . . . would have sufficed to show that at least the statements as to the causes that led to the entry of the United States . . . were grossly false . . . The jury was warranted in finding the statements false in fact, and known to be so by the defendants, or else attributed recklessly, without effort to ascertain the truth. (Pierce, 251)

Brandeis and Holmes took issue with this conclusion, questioning whether the Court could rule on matters of opinion, and, if so, what effect this would have on First Amendment rights (Murphy 1972, 27).

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In other civil liberties cases, Pitney was not always so conservative. He voted in Weeks v. United States (1914) in support of the exclusionary rule. Although he was not generally considered a liberal in matters of race, he voted with the majority to limit the reach of restrictive covenants in Buchanan v. Warley (1917) and to strike down the use of the grandfather clause in Oklahoma as a violation of the Fifteenth Amendment in Guinn and Beal v. United States (1915). Justice Pitney suffered a stroke in the fall of 1922, which forced his retirement from the bench on December 21, 1922. He died at his home in Washington, D.C., on December 9, 1924, and was interred in Evergreen Cemetery in Morristown, New Jersey.

James Clark McReynolds (1862–1946) James Clark McReynolds was born in Elkton, Kentucky, on February 3, 1862, the son of John Oliver McReynolds, a physician who was active in business ventures and who had served as a surgeon in the Confederate army during the Civil War. The McReynoldses were of Scotch-Irish extraction and could trace their lineage far back in Irish history. His mother, Ellen Reeves McReynolds, brought him up under a strict code of conduct. The family moved to Nashville, Tennessee, a few years after McReynolds’s birth. McReynolds attended Vanderbilt University, where he studied the sciences and graduated as valedictorian of the class of 1882. He did one year of postgraduate study in the sciences at Vanderbilt before undertaking the study of law at the University of Virginia. He earned the LL.B. degree in 1884, graduating after only fourteen months of study. McReynolds’s first employment was as personal secretary for two years to U.S. senator and later U.S. Supreme Court justice Howell E. Jackson. Thereafter he established a successful law practice in Nashville, building a reputation in the area of business law. He became a legal adviser, among others, for the Illinois Central Railroad. In 1900 he was appointed professor of commercial law, insurance, and corporations at Vanderbilt University. As a citizen of Nashville he devoted himself to ridding the town of evils such as gambling, prostitution, and the sale of objectionable publications. Following in the paths of his grandfather and great-grandfather, both of whom had held high political office, McReynolds became involved in politics shortly after reaching adulthood. He ran unsuccessfully, but with substantial Republican support, for Congress in 1896 as an anti-Bryan gold Democrat. In 1903 he accepted an appointment as assistant attorney general in the administration of Theodore Roosevelt, a position he held until 1909, when he resigned to join a law firm in New York City. President Taft soon called him back to help with the government’s antitrust battles. McReynolds made his national reputation as the federal prosecutor of antitrust suits against American Tobacco and other large conglomerates between 1907 and 1912. He has been quoted as saying that monopolies were “essentially wicked” (Burner

James McReynolds (Harris & Ewing, Collection of the Supreme Court of the United States)

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1997a, 2026). It was his success in these suits, as well as his support for Wilson’s presidential campaign, that drew the attention of the new president and led to McReynolds’s appointment as U.S. attorney general in 1913. Wilson said he wanted a specialist on civil rights who was “on the people’s side.” Although McReynolds was something of an “anti-trust crusader,” he was a strong conservative in other areas. Bickel and Schmidt describe him as “Entirely committed to the aristocratic principle . . . seeth[ing] with contempt for grasping, newly rich businessmen . . . and he entertained an equal contempt for legislators” (1984, 345). Controversy with several members of the cabinet colored McReynolds’s short time in the Justice Department. It was also during this time that McReynolds penned in an annual report for the Justice Department a proposed plan for the reorganization of the Supreme Court that President Franklin D. Roosevelt sought to implement in 1937. In 1914 President Wilson decided to name McReynolds as his first appointee to the U.S. Supreme Court, to fill the vacancy occasioned by the death of his fellow Tennessean Horace Lurton. It was rumored that Wilson first considered Brandeis for the appointment, but did not want a “radical” and also wanted to replace Lurton with another Democrat. Some have also suggested that Wilson wanted to get McReynolds out of the Cabinet (Burner 1997a, 2026). Wilson announced the nomination on August 19, 1914. McReynolds was confirmed ten days later by a vote of 44 to 6 and took his seat at the opening of the term in October 1914. McReynolds served on the U.S. Supreme Court from 1914 to 1941. During that time he was one of the most conservative members of the Court, sometimes being characterized as reactionary. He was irascible and a racist. He was rude to women and refused to tolerate the use of tobacco in his presence. His anti-Semitism was so strong that he refused to associate with Brandeis and Cardozo and would not speak to Clarke for years because he regarded him as “stupid” (Burner 1997a, 2025). It should also be noted, however, that he exhibited great kindness toward children and contributed a significant sum of money for the upkeep of thirty-three British children orphaned by the Nazi blitzkrieg. He never had a family and left most of his estate to charity. During the years of the White Court he increasingly evidenced his conservatism and his opposition to federal regulation of business. Although he was a strong supporter of enforcement of the Sherman Anti-Trust Act, he believed primarily in laissez faire and free enterprise. He opposed the actions of the Federal Trade Commission, believing that it was for the courts to decide when business practices were unfair (Federal Trade Commission v. Gratz [1920]). In the 1920s he opposed the broad latitude given by the federal government to trade associations (Maple Flooring Manufacturers Association v. United States [1929]). In the area of protection for individual liberties, McReynolds’s positions varied widely. He wrote a number of opinions in support of personal rights, but was totally unsympathetic when the case in question concerned the rights of African Americans.

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In reviewing state laws that had grown out of the fears of radicalism embodied in the first Red Scare, McReynolds was a strong opponent of restrictions on educational opportunities in both public and private schools. He joined with the majority in overturning a statute in place in the territory of Hawaii that discouraged the teaching of Japanese in the public schools. Similarly, in Meyer v. Nebraska (1923) he opposed a Nebraska law that banned the teaching of foreign languages in the lower grades. He could find no compelling reason for such restriction: “we are constrained to conclude that the statute as applied is arbitrary and without reasonable relation to any end within the competency of the State. As the statute undertakes to interfere only with teaching which involves a modern language, leaving complete freedom as to other matters, there seems no adequate foundation for the suggestion that the purpose was to protect the child’s health by limiting his mental activities” (Meyer, 396). It was also McReynolds who wrote the opinion invalidating a law that had been passed by the state of Oregon in 1922 requiring that most children between the ages of eight and sixteen be educated in the public schools. The legislation had been prompted by a combination of factors: the communist concerns raised during the first Red Scare, the opposition to the influence of aliens, and the anti-Catholic sentiment fostered by groups such as the Ku Klux Klan. McReynolds’s opinion in Pierce v. Society of Sisters (1925) argued that the law interfered with the rights of parents to make decisions concerning the welfare of and opportunities for their children. The precedent established here would later be cited by justices arguing for the constitutionality of a number of civil liberties, including the right to privacy. When cases concerning the constitutionality of Jim Crow laws and other efforts to secure the rights of African Americans came to the Court, McReynolds consistently voted against them. He argued, for example, in his dissent in Aldridge v. United States (1931) that racial bias on the part of a juror did not necessarily justify a new trial. He dissented as well from the lower court ruling, which concluded that the Sixth Amendment rights of the Scottsboro boys had been violated. He voted to allow the Texas white primary law to stand. Toward the end of his time on the Court, when the National Association for the Advancement of Colored People Legal Defense Fund began to bring cases testing the denial of educational opportunities for blacks, McReynolds was not concerned that the training made available to blacks be equal to that provided for whites (Missouri ex rel. Gaines v. Canada [1938]). Justice McReynolds’s reactionary attitudes were most strongly exhibited in his opposition to the programs of the New Deal. Beginning as one of the so-called Four Horsemen who banded together to invalidate major programs of the early New Deal, McReynolds far outstripped his brethren in the virulence and duration of his opposition. He even opposed the programs that others found acceptable and refused to moderate his positions after 1937 when several of the justices began to support at least some of Roosevelt’s programs. McReynolds voted against more New Deal measures

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than any other justice. In addition to being philosophically opposed to the liberal policies, McReynolds was a rabid critic of Roosevelt himself, comparing him at one point to the Roman emperor Nero (Burner 1997a, 2030). Early in the New Deal years when there was some hope that the Court would sustain experimental state legislation, McReynolds was already building a record as a dissenter. In opposing a New York state law regulating the price of milk (Nebbia v. New York [1934]), he argued that the government was interfering both with the businessman’s right to set a fair price and also with the consumer’s right to buy a product in a free and open market. McReynolds also joined the minority in opposing the chief justice’s opinion supporting the Minnesota Mortgage Moratorium Law in Home Building and Loan Association v. Blaisdell (1934). McReynolds’s strongest dissent to a New Deal law came in response to a series of cases testing the constitutionality of the gold clause, legislation passed by Congress taking the nation off the gold standard. McReynolds’s dissenting statement was so virulent that it was not printed in the Court reports, but a version of it was printed in the Wall Street Journal (Burner, 2031). He objected to the move on both moral and constitutional grounds: “Moral and financial chaos may confidently be expected. . . . Here we have a monetary system the extent—I almost said wickedness—of which is almost beyond comprehension. No such power was ever granted by the framers of the Constitution” (Wall Street Journal, February 23, 1935). McReynolds voted with the Four Horsemen to invalidate such major New Deal programs as the Agricultural Adjustment Act, the National Recovery Act, the FrazierLemke Act, and the Guffy-Snyder Coal Conservation Act. In some instances he was willing to go further than his conservative brethren. In Ashwander v. Tennessee Valley Authority (1936), he stood alone in dissent from the Court’s approval of the constitutionality of this program. He contended that the Roosevelt administration’s real goal was to take over the electric power industry (Burner 1997a, 2032). In the spring of 1937, after Roosevelt’s unsuccessful attempt to alter the composition of the Court, using the plan first suggested by McReynolds, the Court slowly began to give its approval to some of the liberal legislation being adopted at the state and national levels. McReynolds, however, refused to budge. He penned dissents to the majority opinions upholding what he considered to be unconstitutional extensions of governmental power. He joined Justice Sutherland in dissent in West Coast Hotel Company v. Parrish (1937), a case involving a minimum wage law for women, which first indicated the Court’s change in direction. He also dissented in National Labor Relations Board v. Jones and Laughlin Steel Corporation (1937), joining others of the Four Horsemen in charging that the actions of the NLRB violated the commerce clause and the doctrine of freedom of contract. He also challenged the majority opinion upholding the Social Security Act, contending that the program violated the provisions of the Tenth Amendment (Helvering v. Davis [1937]).

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Justice McReynolds retired from the Court in 1941. He continued to reside in Washington, D.C., until he succumbed to complications of bronchial pneumonia on August 24, 1946. He was interred in Elkton Cemetery in Elkton, Kentucky. He left the bulk of his estate to numerous charities and educational institutions, including the Salvation Army, Washington National City Christian Church, Vanderbilt University, and the University of Virginia.

Louis Dembitz Brandeis (1856–1941) Louis Dembitz Brandeis was born November 13, 1856, in Louisville, Kentucky, to parents of Bohemian descent. Adolph and Frederika Brandeis became engaged in Prague and married after their families migrated to the United States, following the revolution of 1849. The family, although ethnically Jewish, adhered to no formal religion. Adolph was a prosperous grain and produce merchant in Louisville until he decided to sell out and take the family to Europe in 1873. Louis benefited from a thorough and varied educational experience. He attended public and private schools in Louisville until the family departed for a three-year tour of Europe. There he had private lessons and attended lectures at the University of Vienna for one year, then enrolled in the Annen-Realschule in Dresden for two years. Upon returning to the United States, Louis enrolled in Harvard University Law School, receiving his LL.B. in 1877. While there he established one of the outstanding scholastic records in the school’s history. He remained in Cambridge for one year of continued study before embarking on his professional career. In 1878 Brandeis began the practice of law with an older attorney in St. Louis, where his sister lived. He remained there for one year before returning to Boston to set up a partnership with his law school friend, Samuel D. Warren Jr. Brandeis rapidly built a reputation as both an altruistic and talented attorney, and by the 1890s he was earning more than $50,000 per year. Despite reaping the profits of his profession, Brandeis felt it important for lawyers to work to correct some of the problems of society, and he startled colleagues by taking on many cases related to such issues without pay. His achievements in this area included championing a successful campaign to get lower gas rates in the city of Boston, sponsoring legislation to get savings banks to issue life insurance policies at reduced rates the poor could afford, and spearheading a drive to keep subway rates in Boston reasonable (Bickel and Schmidt 1984, 370). These and later efforts earned him the title “The People’s Attorney.” Brandeis’s career was characterized by his strong values and his willingness to act on them. When he was hired to defend Progressive labor reform legislation against business interests who advocated freedom of contract, Brandeis decided that such suits might be pursued most successfully with the amassing of facts and other empir-

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Louis D. Brandeis (Harris & Ewing, Collection of the Supreme Court of the United States)

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ical data. He used this method successfully in cases such as Muller v. Oregon (1908), which tested a state law limiting the number of hours per day that women could be employed in laundries. With the help of his sister-in-law, Josephine Goldmark, and Florence Kelley of the Consumers’ League, Brandeis compiled large amounts of sociological data in an effort to convince the courts of the importance of legislation protecting the health of women workers. The U.S. Supreme Court accepted Brandeis’s argument, voting unanimously to uphold the law. Brandeis’s technique subsequently became widely used by attorneys arguing in behalf of other types of social reform legislation. Such documentation became known as a “Brandeis brief” and led to the development of a new type of legal theory called sociological jurisprudence. On January 28, 1916, President Woodrow Wilson nominated Brandeis to replace Justice Joseph R. Lamar, after having hesitated to nominate him for a vacancy the previous year because of concerns about Brandeis’s reputation as a “radical.” This term stemmed from Brandeis’s contention that attorneys in the early twentieth century were too often willing to become supporters of, or even adjuncts to, large corporations, rather than taking them on to correct evils that pervaded American business. He favored free competition in the marketplace and is said to have helped write this into the guidelines for Woodrow Wilson’s “New Freedom” in 1912 (Strum 1984, 39). The nomination was indeed controversial, being opposed by a number of previous presidents of the American Bar Association, including former president William Howard Taft. It was supported by, among others, Attorney General Thomas W. Gregory and numerous reform groups. Wilson defended Brandeis in a letter to the Judiciary Committee, quoting former chief justice Melville Fuller as saying that Brandeis was “the ablest man who ever appeared before the Supreme Court of the U.S,” and “absolutely fearless in the discharge of his duties.” Confirmation hearings before the Senate Judiciary Committee dragged on for five months before Brandeis was finally confirmed in the full Senate by a vote of 49–22. Brandeis took his seat on the Court on June 5, 1916, beginning a term of service that lasted twenty-three years. During his years on the Court Brandeis penned 528 opinions, 454 of which were for the majority. As in other aspects of his life, Brandeis held and acted on strong beliefs about the role of the U.S. Supreme Court. Although he believed that the Court could, and should, play a powerful role as the final arbiter on some kinds of issues, he also argued strongly that the body should practice judicial restraint. He believed in the strengths of the policies of federalism and separation of powers. He believed in a flexible and creative interpretation of the Constitution that made it applicable to changing times and conditions. He was also a passionate advocate of constitutional support for individual rights. Finally, Brandeis believed that he could play an important role, through his opinions, especially his dissents, in educating his colleagues and the public at large.

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Brandeis’s views on economic issues were in some ways more moderate than those of his liberal colleagues. He supported enforcement of the Sherman Anti-Trust Act, but he did not see bigness in and of itself as an evil. He supported policies and judicial decisions that sought to ensure free and unrestricted competition in the business world. Brandeis authored the majority opinion in Chicago Board of Trade v. United States (1918), allowing the creation of some price-fixing arrangements for the regulation of trade. He expounded further on this principle in his dissent in American Column and Lumber Co. v. United States (1921), in which he argued that the Sherman Act did not punish all restrictions on competition or prohibit the sharing of information among businesses, a common practice of trade associations. In cases dealing with legislation designed to improve conditions for labor and to expand the rights of unions, Brandeis often found himself in the minority. He penned a series of dissents in which he attempted to convince the public, if not his brethren, of the merits of such legislation. In New York Central Railroad Co. v. Winfield (1917), Brandeis supported state workmen’s compensation legislation, arguing that the fact that the federal government had acted in this area did not preclude the state from providing protections as well. When the Court ruled in Duplex Printing Co. v. Deering (1921) that the Clayton Anti-Trust Act did not protect from injunctions unions that were engaging in illegal activity, Brandeis responded with a lengthy dissent that chastised the Court for limiting unions’ opportunities for action. In the same year he also dissented from a decision that overturned an Arizona law that banned the use of injunctions against labor unions (Truax v. Corrigan [1921]). One of the key elements of Brandeis’s belief in the importance of judicial restraint was to allow freedom for creativity and experimentation in reform legislation. Even though he did not always agree with the state’s policies, he respected its right to experiment. This point of view is evident in his dissent in New State Ice Co. v. Liebmann (1932), where he reminded his brethren that, although the Court had the power to overturn the particular law, he thought it far better to allow the legislature latitude to be creative and experimental. He stressed on a number of occasions that he believed the justices should avoid constitutional rulings where other solutions to a case were possible, and that they should avoid writing into opinions their own personal prejudices. In a number of instances, Brandeis voted in favor of New Deal legislation that he personally thought unwise because he believe the Congress should be given power to experiment with reform legislation. In spite of his willingness to let government be creative, Brandeis was not willing to rubber-stamp all of President Franklin D. Roosevelt’s new ideas. In a series of decisions in 1935 he voted against the provisions of the National Recovery Act, ultimately joining his brethren in invalidating the entire program in Schechter v. United States (1935). He wrote the majority opinion in Louisville Joint Stock Land Bank v.

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Radford (1935), which invalidated the Frazier-Lemke Act. Brandeis opposed this law not only because he felt it was symptomatic of the government’s efforts to overreach itself in regulating business, but also because, although it purported to help poor farmers, it was in actuality being used to benefit capitalist absentee owners of large pieces of property. Brandeis was a zealous advocate of protection for individual liberties and is perhaps best known for some of the opinions he wrote on First Amendment issues. Many of these opinions came in the form of dissents. The first such, in 1920 in Gilbert v. Minnesota, raised a point that is seen by many as laying the foundation for the Court’s eventual move toward incorporating the Bill of Rights in the due process clause of the Fourteenth Amendment. This case challenged the conviction of a man under a state sedition law. Brandeis objected to the law because it imposed restrictions not only during war but in peacetime as well. “I cannot believe that the liberty guaranteed by the Fourteenth Amendment includes only liberty to acquire and enjoy property” (Gilbert, 343). This was one of the first times a member of the U.S. Supreme Court had suggested that the Fourteenth Amendment might be used to apply the Bill of Rights to the states. Brandeis penned one of his most passionate defenses of freedom of speech in his concurrence in Whitney v. California (1927):

Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there is time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. (Whitney, 375)

Brandeis was also a pioneer in developing arguments in support of a constitutional right to privacy. In 1890 he and his law partner Samuel D. Warren Jr. published an article in the Harvard Law Review describing legal foundations for such a protection, which Brandeis described as the “right to be let alone.” Once the Court indicated that the Fourteenth Amendment might be used to protect individual rights, Brandeis urged his brethren to be creative in doing so. In his dissent in Olmstead v. United States (1928), a case testing whether the use of wiretaps violated the Fourth

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Amendment protection against unreasonable search and seizure, Brandeis argued that, in evaluating technology of which the Founding Fathers never dreamed, the Court should nevertheless keep in mind their goals of guaranteeing the pursuit of happiness and guarding the individual’s most basic rights from incursion by the government. All told, Brandeis wrote 528 opinions during his time on the Court. Although it is his dissents that are frequently cited, they represent only a small portion of his total output, for 454 of his opinions represented the view of the majority. It was his dissents, however, into which he poured much of his time and effort and his legendary efforts to instruct and to persuade. Here one sees again Brandeis’s talent for amassing empirical evidence in support of his position. Brandeis lived and acted on his beliefs as vigorously in his personal life as in his professional. Although the members of his family were not practicing Jews, he became interested in the Zionist movement in the United States through his friendship with Jacob De Haas, the editor of the Jewish Advocate. In 1912 Brandeis joined the American Federation of Zionism and began to make cross-country trips speaking out on the subject. In 1914 he agreed to become head of the American Zionist movement, a position he held for seven years. Although Brandeis was an outspoken advocate of the Court’s strict code of behavior for justices, he found ways to continue to be influential in liberal politics throughout his career. For a time his close friend Felix Frankfurter acted in his behalf in such matters, and during the 1930s he became a confidant of and frequent adviser to President Franklin D. Roosevelt. As justice he also hosted regular teas where he was able to discuss political matters and express his opinions with a view to influencing policy made by the high-level government officials who often attended. During his long career, both on the Court and as a practicing attorney, Brandeis made many seminal contributions that affected the way the law is used and interpreted. His development of the techniques of sociological jurisprudence changed the way lawyers prepared their briefs and argued their cases. His amassing of facts in Court opinions, particularly in dissents, instructed both those whom he wanted to better understand the law and those who would come back to challenge similar legislation in other cases. Brandeis’s crucial contribution in the innovative use and interpretation of the Bill of Rights through the Fourteenth Amendment was instrumental in laying the groundwork for what came to be one of the most important accomplishments in constitutional law in the twentieth century. Brandeis retired from the Court on February 13, 1939. He died in Washington, D.C., on October 5, 1941. His ashes were interred in the portico of the University of Louisville Law School.

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John Hessin Clarke (1857–1945) John Hessin Clarke was born September 18, 1857, in New Lisbon, Ohio, to John and Melissa Hessin Clarke. He was of Protestant Irish ancestry on both sides. His father was a lawyer active in Democratic politics. Clarke received his education in New Lisbon public schools, then enrolled at Western Reserve College, where he majored in classical literature, graduating Phi Beta Kappa in 1877. He studied law with his father and passed the Ohio bar exam in 1878. He later continued his education at Western Reserve College, where he earned an M.A. in 1880. Upon completion of his education, Clarke made a career in the law and in the newspaper business. He began practice with his father, but then moved to Youngstown, Ohio, in 1880, where he opened a law practice and bought a half interest in the Youngstown Vindicator. This newspaper, with which Clarke was associated for many years, became one of the leading Progressive papers in the area and provided a solid financial base for Clarke. In addition to his professional interests, Clarke pursued an interest in public speaking, often touring the state to lecture on Shakespeare and James Russell Lowell. As an attorney, Clarke specialized in representing large corporations. He served as counsel to, among others, the Erie and Pennsylvania Railroads, the Nickel Plate Railroad, and the Pullman Company. As he increased in prominence and success, he moved on to join the law firm of Williamson and Cushing in Cleveland in 1897. Clarke’s early political opportunities came within the Democratic Party. In 1892, he was offered a congressional nomination, but declined. The following year, he declined to accept a draft for the gubernatorial nomination. After 1900, he became associated with the Progressive reform movement, and it was as a result of this association that he ran unsuccessfully for the Senate in 1904. He was a strong supporter of numerous aspects of the Progressive agenda, including home rule for cities and campaign reform. He was also an advocate of direct election of senators. After the Seventeenth Amendment was ratified, he was nominated for the Senate in Ohio in 1914, in the first direct senatorial election held in that state. He declined the nomination in order to accept his first judicial post. Clarke’s judicial career began in 1914 when President Woodrow Wilson appointed him to the Federal District Court for the Northern District of Ohio. Historian Alexander Bickel says that it was the strong support of U.S. Supreme Court justice James C. McReynolds that secured the appointment for Clarke, although others have argued that Wilson was influenced by Clarke’s friend Newton D. Baker (Burner 1997b, 2080). During Clarke’s two years in this position, 652 cases were tried before him. On July 14, 1916, President Wilson nominated Clarke to the Supreme Court seat vacated by the resignation of Charles Evans Hughes. Clarke was confirmed on July 24

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John H. Clarke (Harris & Ewing, Collection of the Supreme Court of the United States)

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and took his seat when the Court convened for its next session on October 9, 1916. Wilson’s decision to elevate Clarke to the U.S. Supreme Court was strongly supported by Clarke’s friend Newton D. Baker. The nomination was opposed by former president William Howard Taft, who as a leader of the American Bar Association, expressed fears that Clarke and the previous appointee, Louis D. Brandeis, would bring to the Court a new trend in constitutional interpretation that would weaken the document’s influence (Soifer 1992, 156). By 1916 Clarke had become a strong Progressive. He had supported numerous social and political reforms, and was in favor of expansion of state and federal police power as devices to help solve the problems faced by the rapidly industrializing nation and its population. In spite of his early career as a corporate lawyer, Clarke felt sympathy for the poor. He opposed the development of huge monopolies and trusts and decried inefficiency in both business and government. He was a supporter of the rights of labor unions, arguing that they should be exempt from antitrust prosecution. He built a strong record on the Court as a supporter of legislation designed to improve the lot of blue-collar workers, whether through organized efforts or through mere social reform. In a period when the Court was generally backing away from the strict enforcement of antitrust legislation, Clark continued to be one of its strong supporters. He dissented in United States v. U.S. Steel (1920), in which the Court had argued that bigness in and of itself did not indicate criminal intent, and in United States v. United Shoe Machinery Company (1918), in which the majority had left untouched a company that controlled the lion’s share of business of its type. Clarke was able to express his views most forcefully in his majority opinion in United States v. Reading Railroad Company (1920), in which he ruled that a holding company that dominated the coal region in Pennsylvania must be dissolved. He reiterated these sentiments in his opinion in United States v. Lehigh Valley Railroad Company (1920). In like manner, he came down against the influential efforts of trade associations in the 1920s, writing the majority opinion in American Column and Lumber Co. v. United States (1921), in which he upheld government efforts to prevent trade association members from exchanging information on prices and industry trends. Justice Clarke’s Progressive and prolabor sentiments came to the fore in a series of decisions having to do with the regulation of child labor and with the rights of organized labor. Unlike his brethren, Clarke was willing to approve the use of the federal commerce and taxing powers for the regulation or elimination of child labor. He dissented forcefully in Hammer v. Dagenhart (1918), in which the majority said the power of Congress to regulate interstate commerce did not allow that body to exclude from that commerce articles made with child labor. A few years later, in a dissent in Bailey v. Drexel Furniture Company (1922), he made a similar argument in regard to the taxing power.

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Clarke’s belief in broad use of federal and state police power to solve social problems led to his support of a wide variety of legislation designed to improve the lot of laborers. He supported the Adamson Act’s provision of the eight-hour day for railroad workers (Wilson v. New [1917]). He voted with the majority in Stafford v. Wallace (1922) to uphold federal laws regulating meat packing that were designed to improve conditions for workers in that industry. In the area of state legislation, he supported the decision upholding Oregon’s minimum wage and maximum hour law (Bunting v. Oregon [1917]), and that approving the workmen’s compensation statute that had been passed by the state of New York (New York Central Railroad Co. v. White [1917]). He joined with Justice Brandeis in supporting the right of workers to picket in Truax v. Corrigan (1921), and he opposed the use of injunctions to enforce antiunion contracts. In the area of civil liberties, Clarke emerged as a conservative supporter of the federal government’s efforts to restrict the freedom of citizens during wartime. He voted with the majority to support conviction of a Socialist who had printed and circulated pamphlets opposing the draft in Schenck v. United States (1919), and of Socialist leader Eugene V. Debs for speaking out against U.S. participation in World War I (Debs v. United States [1919]). Clarke wrote the majority opinion in Abrams v. United States (1919), upholding the conviction of a group of Russian immigrants who had published and circulated pamphlets criticizing the United States for sending troops to Russia to support the anti-Bolshevik side in the Russian Revolution. Clarke disagreed with the liberals who argued that the pamphlets were of little consequence in influencing public opinion, and that the protection of freedom of expression was of far more consequence: “It will not do to say, as is now argued, that the only intent of these defendants was to prevent injury to the Russian cause. Men must be held to have intended, and to be held accountable for, the effects which their acts were likely to produce” (Abrams, 621). During the same period, in Milwaukee Social Democratic Publishing Co. v. Burleson (1921), Clarke also supported Postmaster General Burleson’s decision to deny second-class mailing privileges to a Milwaukee Socialist newspaper that was critical of the war effort. Clarke left a mixed record in the area of race relations. Although he joined a unanimous Court to rule against restrictive covenants in Buchanan v. Warley (1917), he voted in favor of Jim Crow laws applied to streetcar lines operating across state lines. Justice Clarke resigned from the Court on September 1, 1922, after only six years of service. He claimed that he had found the work on the Court dull and felt that he had made no significant contributions. Some historians have suggested that Clarke’s decision was also influenced by his bad treatment at the hands of Justice James McReynolds. McReynolds, who could be notoriously rude in his treatment of his colleagues, had made Clarke’s life difficult because of the latter’s friendship with Justice Brandeis. McReynolds made no secret of his anti-Semitism, and particularly his distaste for Brandeis (Burner 1997b, 2085).

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The official reason Clarke gave for his resignation was his desire to work for the entry of the United States into the League of Nations. Clarke became head of the League of Nations Non-Partisan Committee and worked to secure the support of prominent Americans for a petition calling for the United States to join the League of Nations. In 1923 the group merged with the American Association for International Cooperation to form the League of Nations Non-Partisan Association of the United States, of which Clarke became president, and to which he devoted considerable time and energy during the next several years. After a time, he realized that the cause was futile, and in 1927, he retired from public life. He was little heard from after that, except when he spoke out in 1937 in support of President Franklin D. Roosevelt’s Court-packing plan. During the same period he also became a strong supporter of Roosevelt’s desire to prepare the country for the possible eventuality of war. Clarke was a lifelong bachelor. He died in San Diego, California, where he had settled in 1927, on March 2, 1945, and was interred in Lisbon Cemetery in Lisbon, Ohio. He left the bulk of his fortune for the purchase of books for the public libraries in Youngstown, Ohio, and to support Adelbert College, a small liberal arts school in his home state.

References and Further Reading Abraham, Henry J. 1999. Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Clinton. New York: Rowman and Littlefield. Abrams, Richard M. 1994. “Charles Evans Hughes.” In Melvin I. Urofsky, ed., The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing, pp. 235–245. Baer, Judith A. 1994. “Edward Douglass White.” In Melvin I. Urofsky, ed., The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing, pp. 525–531. Bartee, Alice Fleetwood. 1992. “William Rufus Day.” In Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, pp. 220–221. Belknap, Michal R. 1986. “Mr. Justice Pitney and Progressivism.” Seton Hall Law Review 16: 381–426. Beth, Loren. 1992. John Marshall Harlan: The Last Whig Justice. Lexington: University Press of Kentucky. Bickel, Alexander M., and Benno C. Schmidt Jr. 1984. History of the Supreme Court of the United States, Volume IX: The Judiciary and Responsible Government, 1910–1921. New York: Macmillan.

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Bond, James E. 1992. I Dissent: The Legacy of Chief Justice James Clark McReynolds. Fairfax, VA: George Mason University Press. Burner, David. 1997a. “James C. McReynolds.” In Leonard M. Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court, 1789–1995: Their Lives and Major Opinions. New York: Chelsea House, pp. 2023–2033. ———. 1997b. “John H. Clarke.” In Leonard M. Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court, 1789–1995: Their Lives and Major Opinions. New York: Chelsea House, pp. 2077–2087. ———. 1997c. “Willis Van Devanter.” In Leonard M. Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court, 1789–1995: Their Lives and Major Opinions. New York: Chelsea House, pp. 1945–1953. Cushman, Barry. 1994a. “John Hessin Clarke.” In Melvin I. Urofsky, ed., The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing, pp. 121–122. ———. 1994b. “Mahlon Pitney.” In Melvin I. Urofsky, ed., The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing. Cushman, Clare, ed. 1993. The Supreme Court Justices: Illustrated Biographies, 1789–1993. Washington, DC: Congressional Quarterly Press. Dinnerstein, Leonard. 1997. “Joseph Rucker Lamar.” In Leonard M. Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court, 1789–1995: Their Lives and Major Opinions. New York: Chelsea House, pp. 1973–1989. Epstein, Lee, Jeffrey A. Segal, Harold J. Spaeth, and Thomas G. Walker. 1996. The Supreme Court Compendium: Data, Decisions, and Developments. 2d ed. Washington, DC: Congressional Quarterly Press. Filler, Louis. 1997. “John M. Harlan.” In Leonard M. Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court, 1789–1995: Their Lives and Major Opinions. New York: Chelsea House, pp. 1281–1295. Freund, Paul A. 1997. “Oliver Wendell Holmes.” In Leonard M. Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court, 1789–1995: Their Lives and Major Opinions. New York: Chelsea House, pp. 2755–2763. Funston, Richard Y. 1992. “Edward Douglass White.” In Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, pp. 927–928. Green, William Crawford. 1992. “Willis Van Devanter.” In Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, pp. 894–895. Hall, Kermit L., ed. 1992. The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press.

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Hamm, Richard F. 1994a. “Joseph McKenna.” In Melvin I. Urofsky, ed., The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing, pp. 289–290. ———. 1994b. “William Rufus Day.” In Melvin I. Urofsky, ed., The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing, pp. 139–140. Hendel, Samuel. 1951. Charles Evans Hughes and the Supreme Court. New York: Columbia University Press. ———. 1997. “Charles Evans Hughes.” In Leonard M. Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court, 1789–1995: Their Lives and Major Opinions. New York: Chelsea House, pp. 1893–1915. Highsaw, Robert B. 1981. Edward Douglass White: Defender of the Conservative Faith. Baton Rouge: Louisiana State University Press. Israel, Fred L. 1997. “Mahlon Pitney.” In Leonard M. Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court, 1789–1995: Their Lives and Major Opinions. New York: Chelsea House, pp. 2001–2009. Kens, Paul. 1994a. “Horace Harmon Lurton.” In Melvin I. Urofsky, ed., The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing, pp. 287–288. ———. 1994b. “Joseph Rucker Lamar.” In Melvin I. Urofsky, ed., The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing, pp. 281–282. Klinkhamer, Sister Marie Carolyn O. P. 1943. Edward Douglass White, Chief Justice of the United States. Washington, DC: Catholic University of America Press. Mason, Alpheus Thomas. 1997. “Louis D. Brandeis.” In Leonard M. Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court, 1789–1995: Their Lives and Major Opinions. New York: Chelsea House, pp. 2043–2059. Matsuda, Mari J. 1992. “Charles Evans Hughes.” In Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, pp. 414–416. McKenna, Marian C. 1992. “Joseph McKenna.” In Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, pp. 539–540. McLean, J. E. 1946. William Rufus Day: Supreme Court Justice from Ohio. Baltimore: Johns Hopkins University Press. Murphy, Paul L. 1972. The Constitution in Crisis Times, 1918–1969. New York: Harper and Row. Novick, Sheldon M. 1992. “Oliver Wendell Holmes, Jr.” In Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, pp. 405–410.

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Orth, John V. 1992a. “Horace Harmon Lurton.” In Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, pp. 514–515. ———. 1992b. “John Marshall Harlan.” In Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, pp. 361–363. Pratt, Walter F., Jr. 1999. The Supreme Court under Edward Douglass White, 1910–1921. Columbia: University of South Carolina Press. Przybyszewski, Linda C. A. 1994. “John Marshall Harlan.” In Melvin I. Urofsky, ed., The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing, pp. 205–213. Scheb, John M., II. 1992. “James Clark McReynolds.” In Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, pp. 542–543. Shoemaker, Rebecca Shepherd. 1994. “Willis Van Devanter.” In Melvin I. Urofsky, ed., The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing, pp. 485–487. Soifer, Aviam. 1992. “John Hessin Clarke.” In Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, pp. 156–157. Stenzel, Robert David. 1992. “Mahlon Pitney.” In Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, pp. 635–636. Strum, Philippa. 1984. Louis D. Brandeis: Justice for the People. Cambridge: Harvard University Press. ———. 1994. “Louis Dembitz Brandeis.” In Melvin I. Urofsky, ed., The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing, pp. 39–48. Urofsky, Melvin I. 1992. “Louis D. Brandeis.” In Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, pp. 83–85. Urofsky, Melvin I., ed. 1994. The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing. Urofsky, Melvin I., and Paul Finkelstein. 2001. A March of Liberty: A Constitutional History of the United States. 2d ed. New York: Oxford University Press. Warner, Hoyt L. 1959. Life of Mr. Justice Clarke: A Testament to the Power of Liberal Dissent in America. Cleveland: Western Reserve University Press. Watts. James F., Jr. 1997a. “Edward Douglass White.” In Leonard M. Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court, 1789–1995: Their Lives and Major Opinions. New York: Chelsea House, pp. 1633–1657.

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———. 1997b. “Horace H. Lurton.” In Leonard M. Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court, 1789–1995: Their Lives and Major Opinions. New York: Chelsea House, pp. 1847–1863. ———. 1997c. “Joseph McKenna.” In Leonard M. Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court, 1789–1995: Their Lives and Major Opinions. New York: Chelsea House, pp. 1719–1736. ———. 1997d. “William Rufus Day.” In Leonard M. Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court, 1789–1995: Their Lives and Major Opinions. New York: Chelsea House, pp. 1773–1789. White, G. Edward. 1994. “Oliver Wendell Holmes, Jr.” In Melvin I. Urofsky, ed., The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing, pp. 225–234. Winkle, John W., III. 1992. “Joseph Rucker Lamar.” In Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, pp. 493–495. Wolf, Michael Alan. 1994. “James Clarke McReynolds.” In Melvin I. Urofsky, ed., The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing, pp. 296–300. Wood, Stephen B. 1968. Constitutional Politics in the Progressive Era: Child Labor and the Law. Chicago: University of Chicago Press. Yarbrough, T. E. 1992. Judicial Enigma: The First Justice Harlan. New York: Oxford University Press.

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3 Major Decisions he period during which Chief Justice Edward Douglass White presided over the U.S. Supreme Court was a time of transition, both for the Court and for the country as a whole. Although it can be said that the Court during this time did not render as many important decisions as it did in some other periods, it can be argued that the White Court made important contributions both in refining doctrines that had been devised in earlier years and in laying the groundwork for groundbreaking constitutional interpretation in the years to come. The work of the White Court was influenced, as is that of all courts, by the personalities involved. White himself was described by many, both at the time he led the Court and subsequently, as a kindly man, much concerned about the welfare and happiness of the justices with whom he served. That concern notwithstanding, he was not always able to ameliorate the intellectual conflicts or the clashes of personality and prejudice that sometimes hindered the Court’s work. It is known that White disliked conflict and tried to engineer as many unanimous opinions as possible. White himself was much influenced by the classical legal education he had received, both in Jesuit schools and in his apprenticeship with attorneys in his home state of Louisiana. He was personally “a defender of the conservative faith” (Highsaw, 5), who was not generally found in the forefront of those on the Court who were willing to embrace nonconformist interpretations of the Constitution in an effort to make it more nearly serve the needs of the times. White’s best remembered contribution to the body of the Court’s decisions in this ten-year period was the doctrine of the “rule of reason,” expounded in one of the first Sherman Act cases to be decided by the Court under his leadership. Many of the more controversial decisions of the White Court, and, frequently, those that would have long-term significance, were the products of the minds of justices with strongly developed ideas about the law and the Constitution and the guidelines under which they should be interpreted. These included Justice Oliver Wendell Holmes Jr., a recognized expert on the common law and one with minimal sympathy for the efforts of some of the justices to incorporate their own philosophies into the decisions of the Court. Louis D. Brandeis, who joined the Court in 1916, was an outspoken defender of social and labor legislation. He demonstrated a penchant for incorporating in his opinions compendia of supporting data, much like those that had bol-

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stered his arguments in cases he had earlier undertaken as an attorney. In the later years of the White Court, Brandeis and Holmes frequently joined forces in penning important decisions (or dissents), which would establish precedents for interpreting the Constitution to broaden the protections of the rights of individuals. Many of the most significant opinions of the White Court dealt with economic issues that had developed as the country experienced the growth of increasingly complex systems of business and industry. The regulatory efforts begun in the late nineteenth century still generated conflicts to be resolved. Questions related to the use by the federal government of the Sherman Anti-Trust Act of 1890 and the circumstances that warranted dismantling of a business conglomerate prompted some of the White Court’s most significant opinions. Continued controversy about the regulatory powers of the Interstate Commerce Commission generated numerous cases, some raising questions of state versus federal authority that required the Court’s clarification. In addition, the growth of new business practices as a result of efforts to secure protection for new products and manufacturing techniques raised legal issues that needed to be settled. In the first years of the twentieth century, Progressive reformers sought government participation in efforts to correct problems that society itself was unable to resolve. These ranged from concerns about the production of consumer goods to efforts to legislate moral issues. Numerous attempts to legislate a ban on the manufacture and sale of alcoholic beverages raised constitutional questions, as did efforts to ban interstate traffic in prostitution. Labor unions joined Progressive reformers in the battle to win protection for the rights of blue-collar workers and to secure special safeguards for women and children. Many cases dealing with such reform issues reached the U.S. Supreme Court during the White years, and the justices, although generally unwilling to take on business interests, provided some protection for workers, while at the same time being consistently unsympathetic to the efforts of the unions. Although Jim Crow policies held sway throughout the South and discrimination was the order of the day in many other parts of the country during the White Court years, the justices did hand down a few opinions that favored the rights of African Americans. These decisions were usually based on traditional grounds, such as freedom of contract or property rights, rather than on any desire to interfere with the established social system, but the Court did make inroads against policies of debt peonage, the use of the grandfather clause to restrict political rights, and the employment of restrictive covenants to achieve racially segregated neighborhoods. The outbreak of World War I generated a variety of legal questions and constitutional issues that the Court was asked to resolve. Even before the United States was actively engaged in the conflict, numerous maritime questions were raised by the struggle. Once the country began to mobilize in support of the war effort, a variety of

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cases asked the justices to consider the extent of legislative and executive power in wartime, including the power to create a draft, to regulate or take over industry and transportation systems during wartime, and to establish price controls on retail items and rent. Although many of these cases were not resolved until after the war had ended, the Court’s rulings set important precedents that would be of use in the years to come. The first major civil liberties controversies to reach the U.S. Supreme Court arose as a result of government efforts to curb opposition to the war and interference with the draft. Passage of the Espionage and Sedition Acts prompted challenges to government restrictions on freedom of speech and press. Although the Court was generally supportive both of the war effort and of the Wilson administration’s efforts to limit the effects of dissent, Justices Brandeis and Holmes, particularly, penned eloquent dissents in a number of cases that would lay the groundwork for broadened protection for civil liberties in the future. In a number of cases the Court was asked to rule on the extent of federal powers in the relationship between the federal government and the states. Cases concerning the treaty powers prompted the court to invoke the supremacy clause of Article VI. Questions about the extent of the executive branch’s power to control the public domain and to determine the use of navigable waterways were generally decided in favor of the federal government. The Court did, in at least one instance, reiterate the Marshall Court’s position that states could rule in certain areas that had not yet been preempted by the Congress. On the whole, the White Court respected the divisions of power inherent in the federal system, but the general trend of their decisions was to continue the trend toward strengthening federal power established by previous Courts.

The Antitrust Laws One of the actions for which the U.S. Supreme Court under the leadership of Chief Justice Edward Douglass White is best known came early in the period of his leadership, was spearheaded by White, and was, in fact, based somewhat on his thinking in much earlier cases. For more than fifteen years the Court had been asked repeatedly to determine the circumstances under which a business combination such as a trust or monopoly could be judged illegal and forced to break up, and in 1911, White led the Court in making a series of pivotal decisions in this area. In the late 1800s growing pressure on the federal government to regulate unrestrained competition in business and industry prompted Congress to pass the Sherman Anti-Trust Act of 1890, outlawing every “contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce.” The legislation

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had been based on traditionally accepted tenets of common law, but, once in place, it raised a number of questions that were not easily answered. Although many businessmen had professed to be supportive of the idea of regulation, cases soon began to reach the courts challenging the application of the law and questioning, among other things, whether it outlawed all combinations, or only those that were unreasonable. The U.S. Supreme Court first responded to this query in its opinion in United States v. E. C. Knight Company (1895). In this case the Justice Department brought suit against the American Sugar Refining Company, which controlled 90 percent of the sugar refining capacity in the country at that time. The key question raised by the case was whether or not actual manufacturing constituted “trade.” Chief Justice John Marshall, in a seminal decision in Gibbons v. Ogden (1824), had defined the term trade very broadly, as including all forms of “intercourse.” Now, however, businessmen hoped for a narrower definition that would make it less likely that the manufacturing process would come under the regulation of the Sherman Act. Chief Justice Melville Fuller, writing for the Court in United States v. E. C. Knight Company, obliged them. He drew a distinction between “direct” and “indirect” effects on commerce. The first, he said, referred to the transportation in interstate commerce of the products of industry. The second referred to the production of industrial goods that frequently, as in the case of the sugar refineries, took place within a single state. The Court concluded that the Sherman Act prohibited restraint of trade only in “direct” commerce. The Court was no doubt influenced not only by the strength of business and industry in the country at the time but also by the fact that a number of the justices had backgrounds in corporate law. Chief Justice Fuller, however, was also concerned, in part, to protect the concept of federalism by leaving to the states the responsibility for regulating businesses that operated within their boundaries, and that were often chartered under their laws. The sugar refineries, therefore, were not involved in “direct” commerce, according to this reasoning, and were thus not subject to the terms of the Sherman Anti-Trust Act. Businessmen welcomed this decision, because it narrowed the terms under which corporate combinations were likely to be prosecuted, and for the next several years the Sherman Act was not effectively used. In the early years of the twentieth century, President Theodore Roosevelt determined to take a more proactive stance in the regulation of big business. In so doing he distinguished between what he called good and bad trusts. Good trusts were combinations that might control a large part of an industry, but whose size enabled them to provide a product or service more efficiently and at lower cost than could a number of smaller companies in the same line of business. The American Telephone and Telegraph Company was often cited as an appropriate example of this type of trust. Bad trusts were those that operated to eliminate competition, corner the market for a product, and leave the consumer at the mercy of the trust builder. It was these types of

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trusts that Roosevelt believed should be eliminated, and his administration began a campaign of trust-busting against such entities. The Justice Department’s first major endeavor in this area was a suit against a railroad trust called the Northern Securities Company. A group of railroad owners and financiers, including James J. Hill, J. P. Morgan, and E. H. Harriman, had established this holding company to operate three major railroad lines, the Great Northern, the Northern Pacific, and the Burlington, as an integrated system. The federal suit challenged that this was an unlawful combination under the terms of the Sherman Act. Unlike many previous such suits that had been settled behind closed doors, the Northern Securities Case was pursued in the courts, reaching the U.S. Supreme Court in 1904. The Court, in a 5–4, decision, ruled against the company. Justice John Marshall Harlan wrote the majority opinion in Northern Securities Company v. United States (1904). He rejected the contention that the deal had actually involved nothing more than a transfer of stock that the corporation had cited within the terms of its charter. He concluded that the main purpose of the establishment of the combination had been to restrain competition, and that this was a direct violation of the Sherman Act. Despite the fact that the charter in question was administered by the State of New Jersey, the controlling factor here was the power of Congress to regulate interstate commerce. The leading dissent in the case was drafted by Justice Oliver Wendell Holmes Jr., who expressed serious concerns about the usefulness of the Sherman Act because it did not spell out what should be considered an unlawful combination and what was not. Obviously, Congress had not meant to prevent every sort of combination, for this would make business agreements impossible. Perhaps it was, in fact, aiming to control only unreasonable combinations. This was a question that would continue to haunt the Court until the period of White’s leadership. In the year following the decision in the Northern Securities case, Justice Holmes was able to make some headway at establishing a guideline that would enable the federal government to regulate some types of manufacturing or processing industries. In Swift and Co. v. United States (1905), Holmes wrote the majority opinion, in which he created the “stream of commerce” doctrine. The case involved a large meatpacking operation in Chicago and questioned whether the business, operating in a single state, could be reached by congressional regulation of interstate commerce. Holmes broadened the reach of the Sherman Act by creating what he termed the “stream of commerce” theory. The stockyard whose operation was at issue in the Swift case, was, according to Holmes, a “throat” through which the stream of commerce passed, since it received stock from another state and passed it on to other businesses, that is, the nearby slaughterhouses. Even though this concept allowed the Court to consider cases involving a wider variety of business operations, it still did not answer satisfactorily the question of what constituted illegal restraint of trade.

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One of the largest trusts in the United States in the early twentieth century was John D. Rockefeller’s Standard Oil Company. Rockefeller had originally chartered the company in Ohio, but when Ohio courts ordered in 1892 that it be broken up, he successfully sought a charter from the State of New Jersey, whose incorporation laws were much more liberal. At the height of the trust-busting effort of the Theodore Roosevelt administration, the Justice Department filed suit against Standard Oil Company in 1906 for violation of the Sherman Act. The charge was “a conspiracy to monopolize commerce in oil by means of acquisitions and agreements fixing prices and controlling production” (Bickel and Schmidt 1984, 89). The Justice Department alleged that Standard Oil had amassed control of three-quarters of the petroleum industry in the country. The complaint asked that the holding company be broken up. A circuit court decision in 1909 upheld the main elements of the Justice Department’s case. Standard Oil promptly appealed to the U.S. Supreme Court. After several administrative delays, the case was argued before the Court in March 1910, then reargued during the first week of White’s leadership in January 1911, because of changes that had taken place in the composition of the Court in the interim. The Court’s unanimous opinion was handed down on May 15, 1911, written by Chief Justice White himself (Standard Oil Company v. United States [1911]). The opinion first concluded that the Standard Oil trust did, in fact, operate in restraint of trade, and it was ordered to dissolve. At the same time, however, Chief Justice White undertook to resolve the controversy over the extent of the reach of the Sherman Act. Concluding that Congress had not intended the law to require the dismantling of every business combination, White argued that only “unreasonable” trusts such as those that held a monopoly in a specific industry should be broken up. He would use common law standards of reasonableness to determine which were which. Justice John Marshall Harlan concurred in part and dissented in part. He argued for adhering more nearly to the letter of the act. He vehemently rejected the use of the rule of reason. At the same time that it was considering the case against Standard Oil, the Supreme Court was deciding a similar case against a conglomerate that controlled a large portion of the tobacco industry in the United States. Consolidation of tobacco processing companies had begun in 1890, when James B. Duke began buying up other companies. This effort culminated in 1904 with the creation of a major holding company called the American Tobacco Company. By 1910 this group, in cooperation with two British companies, controlled more than 75 percent of the U.S. market for cigarettes, smoking tobacco, and chewing tobacco, with control in some areas reaching as high as 95 percent. The Justice Department under President Theodore Roosevelt filed a civil suit on July 19, 1907, asking that the companies be prevented from operating further and calling on the courts to order that the conglomerate be broken up. They wanted the foreign companies to be prevented from doing business in the United States and a receiver to be appointed to reorganize the industry and restore competition.

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Rulings in the case by federal circuit courts proved unsatisfactory to both sides, and both filed appeals that eventually reached the U.S. Supreme Court, where arguments were first heard in the winter of 1910. Because of changes in the composition of the Court before the case could be concluded, the case was scheduled for reargument in the winter of 1911 as one of the first cases taken up by the court under White’s leadership. The Court handed down its ruling in United States v. American Tobacco Company on May 29, 1911. Chief Justice Edward Douglass White wrote the opinion for the Court. He reiterated the rule of reason as the basis for deciding a case such as this, taking the opportunity to clarify its meaning, as he saw it: In other words, it was held, not that acts which the statute prohibited could be removed from the control of its prohibitions by a finding that they were reasonable, but that the duty to interpret which inevitably rose from the general character of the term restraint of trade should be given a meaning which would not destroy the individual right to contract and render difficult if not impossible any movement of trade in the channels of interstate commerce—the free movement of which it was the purpose of the statute to protect. (United States v. American Tobacco, 179–180)

He said that the entire tobacco combination was illegal and must be broken up. He concluded that the companies in question had conspired to operate in restraint of trade. The Court sent the case back to the circuit court with instructions to devise a plan that would restore competitive conditions. As he had in the Standard Oil case, Justice John Marshall Harlan concurred in part with the decision, and dissented in part. He objected again to the use of the rule of reason. He said the combination violated the Sherman Act, and the Court should say so, clearly and simply. The circuit court accepted in November 1911 a series of proposals submitted by the defendants for breaking up and reorganizing the tobacco industry. Both this decision and that in the Standard Oil case strengthened a campaign for revision of the Sherman Act and helped to bring about passage of the Clayton Anti-Trust Act of 1914. During the subsequent decade, many of the Sherman Act cases with which the White Court dealt had to do with charges that railroad companies had violated the Sherman Act. In some instances the issue at hand involved mergers or combinations similar to that in question in the Northern Securities case. Several other cases concerned companies in the Appalachian coal-mining area, where railroad companies had combined with mining operations in an effort to control the various phases of production and shipment of coal. The White Court was generally consistent in ruling against the railroads in their efforts to exert undue influence over large sectors involving interstate commerce.

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In United States v. Union Pacific Railway Company (1912), the federal government challenged the merger of the Union Pacific and Southern Pacific Railroads in 1901 as being in violation of the Sherman Act. The Union Pacific, which owned several major railroads, as well as some steamship lines, had purchased the Southern Pacific Railroad, which also controlled two major railroad lines and some steamship lines. One of the major objectives of the Union Pacific had been to gain control of the Southern Pacific’s line from Ogden, Utah, to San Francisco, California. The Justice Department charged that the effect of the merger was to restrain competition in the railroad industry. The Federal Court for the Eighth Circuit, where the case was heard first, dismissed the suit, arguing that, since the railroads had not been in competition, the merger did not eliminate competition. The U.S. Supreme Court reversed this decision in 1913, with Justice William R. Day writing for a unanimous Court. (Justice Van Devanter recused, because he had participated in the case as a member of the circuit court.) Day said that the merger did, in fact, eliminate competition, and that it had been designed for the same intent and purpose as the merger overturned in the Northern Securities case. The Court ordered the merged line to be broken up, with the exception of the Ogden–San Francisco line. The Union Pacific Company asked to be allowed to sell its stock in the Southern Pacific to its major shareholders. The Court, in an opinion announced by Justice Day on January 6, 1913 (United States v. Union Pacific Railroad Company), denied the request, saying that the result would have a small number of individuals effectively controlling both railroads. Most of the other railroad cases heard during this decade under the antitrust laws dealt with the effort to consolidate holdings in railroads and mining in the Appalachian area. A prime example was the activity of the Reading Railroad, which resulted in two major cases reaching the White Court. The first case, decided in 1912, was United States v. Reading Railroad Company. In the late 1890s, mine operators in Pennsylvania had attempted to build an independent railroad for use in shipping their coal to market. The six major railroads, including the Reading, bought out the major independent coal producer through the Temple Iron Company. The federal government brought suit against Temple Iron, charging that it was essentially a holding company through which the railroads operated to wipe out competition. Justice Horace Lurton wrote the opinion for the majority. (Day, Hughes, and Pitney recused.) He ruled that the creation and use of the Temple Iron Company to destroy the independent railroad was an operation in restraint of trade. It did not matter that the independent railroad might be difficult, or impossible, to restore. Lurton also ordered the cancellation of perpetual contracts for the purchase of the independents’ coal by the major railroads. He said this, too, was restraint of trade. The second Reading case, begun early in the White Court but not decided until 1920, charged the Reading Railroad Company with creating another conglomerate,

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this one initiated by the purchase of a New Jersey railroad. In 1901 the Reading Railroad Company had acquired the Central of New Jersey Railroad, a coal carrier, which in turn, controlled and brought under Reading ownership the Wilkes-Barre Coal Company, another large producer. The Justice Department filed suit, charging that this combination violated the Sherman Act. In a decision in 1915, a three-judge federal circuit court panel ruled that the merger of the Reading Railroad and the Reading Coal and Iron Company did not constitute an illegal merger. The acquisition of the WilkesBarre Coal Company did, however, suppress competition. The Court ordered the Reading Railroad Company to sell the Wilkes-Barre Coal Company. Neither the government nor the coal company was satisfied with this ruling, and both sides appealed to the U.S. Supreme Court. The initial argument of this case before the Court occurred in 1916, but the ruling was delayed until 1920 in order not to interfere with the war effort. In United States v. Reading Railroad Company (1920), Justice John H. Clarke wrote for a majority of four. Brandeis and McReynolds recused, and White, Holmes, and Van Devanter dissented. Clarke said the 1896 merger of the Reading Railroad and the Reading Coal Company was illegal because it gave the Reading too great a control over the production and shipment of coal. He ordered the holding company dissolved. He further ordered dissolution of the Reading Railroad’s control of the Wilkes-Barre Coal Company for the same reason. He also said the Hepburn Act did apply to the case, despite what the circuit court had said. It was in an antitrust suit involving the nation’s largest steel corporation that the White Court made its second pivotal ruling on the meaning of the Sherman Act. In a decision that carried the rule of reason a step further, the White Court concluded that the definition of reason could be made broader than had yet been the case. This decision set the stage for a series of probusiness rulings by the Court under Chief Justice William Howard Taft in the 1920s. It was also a signal to reformers that the effort needed to break up large combinations would be almost unattainable in the ensuing years. The initial events that precipitated the decision in 1920 had actually transpired in 1907. During a financial crisis that year, the board of trustees of U.S. Steel had opted to purchase the Tennessee Iron and Coal Company, which had the potential to become a major competitor. As the story was later told, however, trustee J. Pierpont Morgan and others had actually made the decision to prevent the impending bankruptcy of a major investment firm in New York City. After this decision was made, two other trustees of U.S. Steel, Elbert H. Gary and Henry Clay Frick, visited then President Theodore Roosevelt at the White House to secure his assurance that the acquisition would not put them in violation of the Sherman Act. Roosevelt agreed to draft a statement supporting them on that point. All of these actions notwithstanding, the Justice Department of the Taft administration filed charges against U.S. Steel under the Sher-

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man Act in 1911. At that time U.S. Steel incorporated more than one hundred companies. It did not have anywhere near a monopoly in the steel business, but it was by far the biggest corporation in the industry. Roosevelt saw the indictment as a personal slap in the face from the Taft administration and was further incensed when the press labeled him gullible. It would be almost nine years before the case was finally resolved. A four-judge circuit court panel ruled against the government in June 1915 (United States v. U.S. Steel Corporation), concluding that U.S. Steel was not in violation of the Sherman Act. They said that the company had purchased Tennessee Iron and Coal in order to produce steel more efficiently, not to eliminate a competitor. The fact that the Tennessee company was regarded as having the potential to become a competitor was not relevant. The federal government appealed the ruling to the U.S. Supreme Court, where it was initially argued in March 1917. Neither the steel company nor the federal government was eager to resolve the case at this point because of its implications for the war effort. The case was scheduled for reargument, which was subsequently postponed at the government’s request. The Court finally heard the case a second time in October 1919 and announced its decision on March 1, 1920. The case, United States v. U.S. Steel Corporation (1920), was decided by a seven-man Court. Justice McReynolds recused because he had been involved in early stages of the case during his service as attorney general under President Woodrow Wilson. Justice Brandeis did not participate because he had earlier been outspoken regarding various aspects of the steel industry. Justice William McKenna wrote for the majority, which included Chief Justice White and Justices Van Devanter and Holmes. Justice Day dissented, joined by Pitney and Clarke. In a surprising variation on the “rule of reason” theme with which the Court under White had decided its first big antitrust suit in 1911, McKenna announced that bigness in and of itself did not constitute violation of the Sherman Act. The fact that U.S. Steel was a huge conglomerate with the potential to operate as a monopoly in restraint of trade was not punishable: The Corporation is undoubtedly of impressive size and it takes an effort of resolution not to be affected by it or to exaggerate its influence. But we must adhere to the law and the law does not make mere size an offense or the existence of unexerted power an offense. It, we repeat, requires overt acts and trusts to its prohibition of them and its power to repress or punish them. It does not compel competition or require all that is possible. (U.S. Steel, 432)

Justice Day’s dissent emphasized the initial goals of the purchases and combinations, which was to reduce or eliminate competition. He said that size alone might not

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be illegal, but the acquisition of other businesses for the purpose of creating a conglomerate was. Although the leadership of Chief Justice White was nearing its end, the Court with this decision was embarking on the probusiness trend that would influence many of its decisions under Chief Justice Taft in the 1920s. Businessmen who had watched antitrust prosecutions could now breathe a sigh of relief in the hope that this precedent would protect their businesses from the types of prosecution that had characterized much of the work of the Justice Department during the Progressive Era.

The Relationship between Patents and Monopoly Among the variety of antitrust issues that came before the White Court were those raised in a series of cases having to do with the rights of companies holding patents to use those patents to control the market for, or manufacturing of, specific products. During the second half of the nineteenth century, the number of patents granted to inventors and enterprising businessmen had grown astronomically. Between 1790 and 1860, the U.S. Patent Office had granted a total of 36,000 patents. In the single decade of the 1890s, however, more than 200,000 patents had been issued. Patent holders argued that the value of the patents lay in their holders’ being able to reap maximum profits from their inventions, and they were often creative in the ways in which they attempted to do this. For example, should a company that developed a duplicating machine be able to control the types of ink and paper used to operate it? Should a company that invented a machine for producing one portion of a shoe be able to require than only machines it developed and sold be used in completing other portions of the same shoe? The justices were challenged to draw a fine line between fair and just return for the inventors’ efforts on the one hand, and proper enforcement of antitrust legislation on the other. One of the best-known patent cases of this period, and one that set the tone for subsequent decisions, was Dr. Miles Medical Co. v. John D. Park and Sons Company (1911). The Miles Company manufactured a patent medicine using a secret process. In an attempt to control sales of their products and to maximize the profits therefrom, the Miles Company, in 1903, developed the “Miles Plan,” whereby they would sell their products only to wholesalers and retail druggists who would sign contracts promising to sell Miles’s products only at an agreed-upon price. The John D. Park and Sons Company, in an effort to get around this plan and maximize their own profits, persuaded one of Miles’s wholesalers to sell them the product at less than the set price. They then undercut the Miles system by selling at retail below the set price. The lawsuit followed. The Miles Company based its suit against the Park Company on the contention that their drugs deserved protection because they were manufactured under a patent-

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like process. They further contended that their contractual relationships were being interfered with. The U.S. Supreme Court, in a majority opinion written by Justice Charles Evans Hughes, rejected these arguments, deciding the case under the antitrust provisions of the Sherman Anti-Trust Act. The justices concluded that the contracts that the Miles Company required were intended to fix prices for the product and thus were in restraint of trade. Justice Oliver Wendell Holmes Jr. produced a spirited dissent, one of many in which he would voice his dislike for the Sherman Act. He pressed his argument that prices should be fixed by the economics of the marketplace and not by government interference with free enterprise. The decision in this case was only the first in a series in which the Court attempted to iron out the complexities of the relationship between free enterprise and patent law protection. The following year the Court decided a more complicated case, but one dealing with an issue that was to surface repeatedly as a question concerning the relationship between exercise of rights under patents and the meaning of restraint of trade under the Sherman Act. How far could the patent holder go in controlling use of his product? In Henry v. A. B. Dick Company (1912), the issue revolved around a patent held by the A. B. Dick Company for its rotating mimeograph machine. The company required purchasers of its machines to sign an agreement that they would use for operating the machine only paper, ink, and other auxiliary products purchased from A. B. Dick. An individual named Henry began selling ink for use with the machines, and the Dick Company sued him for violation of their patent. The U.S. Supreme Court divided 4–3 in Dick’s favor, Justice Day being absent, and Justice Harlan not yet having been replaced. Justice Horace Lurton wrote for the majority, joined by McKenna, Holmes, and Van Devanter. He said that the policy of tying sales of the mimeograph machine to sales of a related product did not restrain trade, because the invention of the mimeograph machine had created a market that would not otherwise have existed. Further, existing patent law allowed the holder of the patent to attach conditions under which the patented item would be sold. Chief Justice White wrote the dissent, in which he was joined by Hughes and Lamar. He argued that the Court’s ruling allowed the Dick Company to create a monopoly over the sale of nonpatented articles. Numerous officials in all three branches of government expressed concern about the decision in this case, and the principle on which it was based was rejected in a decision a few years later. In the interim, Congress passed the Clayton Anti-Trust Act in 1914, incorporating a provision limiting the restrictions that a seller or lessor could place on the use of his products. A slightly different variation on this same theme was presented to the Court the following year in the case Standard Sanitary Manufacturing Co. v. United States (1912). In 1899 James W. Arrott Jr. developed a process for applying an enamel surface to cast iron to produce smooth-surfaced products such as bathtubs. The Standard Sanitary Manufacturing Company subsequently purchased the patent and developed a

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licensing process by which it allowed other companies to use the process so long as they participated in a price-fixing pool. By the early 1900s, Standard Sanitary Manufacturing Company had gotten control of well over 75 percent of the manufacturing and marketing of fixtures thus produced. The federal government filed suit against the company, charging that its arrangement constituted a violation of the Sherman AntiTrust Act. The U.S. Supreme Court, with Justice Joseph McKenna writing the opinion, ruled unanimously that this practice did, in fact, constitute restraint of trade. McKenna argued that there were limits on the use of patents and that the use of the patent to achieve restraint of trade was a violation of the Sherman Anti-Trust Act. Many of the antitrust cases involving the argument that holding a patent allowed a business to control related areas of manufacture, use, and pricing of products were argued in the courts on the basis of the precedent established in the Dick case. Although the U.S. Supreme Court narrowed patent holders’ rights in a series of cases such as that just discussed, it was not until 1917 that the Dick ruling was actually overturned. This occurred in a case involving a rapidly developing business that promised to raise a variety of interesting legal questions—the motion picture industry. At issue in Motion Picture Company v. Universal Film Manufacturing Company (1917) was the practice of “tying” use of a patented machine to other products. The holder of the patent for the only machine available for projecting motion pictures satisfactorily required that the manufacturer stipulate when selling the machines that they be used to project certain types of films, but not others. Justice John Hessin Clarke, writing for the majority, ruled that the arrangement violated the antitrust laws, particularly the provision of the Clayton Act that specifically addressed such restrictions. He said that control over the patented item did not include tools or materials not mentioned in the patent documents. Justice Holmes dissented, joined by Justices McKenna and Van Devanter. As he had done in previous such cases, Holmes argued that the holder of the patent should have complete liberty to decide to whom he would sell his product, and under what circumstances. He maintained that such restrictions in question would affect only the market for a specific product, which, in this case, was not vested with a public interest. One of the most complicated patent cases of the period involved a company that had been the subject of numerous antitrust lawsuits for almost two decades. This was the United Shoe Machinery Company, which had long held a virtual monopoly in the manufacture and sale of machines used in the production of shoes. In 1899, United Shoe had merged with two similar companies to achieve a strong position in the industry. Subsequent acquisitions further extended the company’s dominance in shoe machinery. United Shoe was unusual, however, in that, unlike other companies that were the subject of patent rights suits, it leased its machines, rather than selling them to shoe manufacturers.

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During the first twenty years of the 1900s, the federal government filed several suits challenging United Shoe’s operations as being in restraint of trade. An initial suit filed in September 1911, charged S. W. Winslow and other officers of the company with violating the Sherman Act in establishing the first merger in 1899. The trial court ruled, and the U.S. Supreme Court affirmed, in a unanimous opinion written by Justice Holmes, United States v. Winslow (1913), that the government did not prove its case because there was no evidence that the initial merger had resulted in the elimination of competition. An equity case, filed in December 1911, was not decided by the White Court until 1918. United States v. United Shoe Machinery Company (1918) focused on the company’s efforts to control use of the machines it manufactured. United Shoe employed restrictive leases that required the leasing company to agreed that it would use in the manufacturing process only machines offered by United Shoe. They also required those clients to swear that they would not manufacture on the machines shoes that had been made in part using machines of other companies. The trial court ruled against the government in 1915. The case was initially argued before the U.S. Supreme Court in March 1917. It was reargued in January 1918 and decided on May 20, 1918. The White Court ruled in the company’s favor by a vote of 4–3. McReynolds and Brandeis recused, McReynolds because he had been involved in the early stages of the case as U.S. attorney general, and Brandeis because he had had professional associations with the company, then testified against it, before joining the Court. The majority opinion was written by Justice Joseph McKenna, joined by White, Holmes, and Van Devanter. He argued that the use of restrictive leases did not really suppress competition. Because the industry was so closely controlled through the use of patents, there was little competition to be eliminated (Bickel and Schmidt 1984, 174). McKenna also pointed out that, practically speaking, forcing the company to dissolve would be difficult, if not impossible, it having existed as it was for almost two decades. Further, there was no guarantee that doing so would increase competition. People who leased the machines chose to do so and chose to abide by the provisions of the leases because of the benefits they received. In this situation, he regarded the use of restrictive leases as reasonable. Justices Clarke, Day, and Pitney dissented. Clarke and Day each produced written opinions. Each joined the other’s opinion, and Pitney joined both. Justice Clarke concluded that the result of the mergers was an illegal combination. Justice Day argued that the restrictive leases restricted competition because they prevented lessees from using machines produced by companies other than United Shoe. Although the courts were considering these issues and preparing their opinions, the Congress, having held investigations into the operation of United Shoe, decided that its practices warranted legislative attention. When Congress passed the Clayton AntiTrust Act in 1914, it included in Section 3 a provision that forbade the use of restric-

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tive leases by companies engaged in interstate commerce if the effect of those leases was to hamper competition or to contribute to a monopoly. In 1915 the federal government filed a new lawsuit against United Shoe, charging it with violation of this provision. The struggle between the federal government and United Shoe Machinery Company took a new turn in 1922, when the Taft Court ruled in this case, United Shoe Machinery Corporation v. United States (1922), that the leases did have a tendency to monopolize. The difference here was that the government had only to demonstrate violation of the prohibition against a “tendency to monopolize.”

The Interstate Commerce Act In the period of great growth and expansion of business and industry in the last third of the nineteenth century, there was an increasing reliance on railroads for transportation of raw materials, manufactured products, and farmers’ crops. As railroads were consolidated by powerful conglomerates, many of their customers complained that they were at the mercy of the railroads’ policies, prices, and preferential treatment for major shippers. At the same time, railroad operators tired of the dog-eat-dog competition in which they had to engage in order to operate their lines profitably. After attempts by some state legislatures to regulate railroad rates proved inadequate to the task, reformers and lobbyists prevailed upon the Congress to take action. This pressure eventually resulted in the passage of the Interstate Commerce Act on February 4, 1887. The Interstate Commerce Act pioneered a new way for government to handle the regulatory chores that business and the public were beginning to demand. Through it, Congress provided for the creation of a five-person Interstate Commerce Commission (ICC), whose members were to be appointed by the president with the approval of the Senate. The commission could receive complaints from and about railroads, conduct investigations, and issue cease and desist orders. The Congress also mandated in the legislation an end to rebates, rate-fixing agreements, pools, and long haul–short haul discrimination. The commission experienced a great deal of difficulty in attempting to carry out its mission during the first two decades of its existence. Powerful railroads found ways to subvert the rulings of the commission by appealing its rulings to the courts, often finding sympathetic judges who were willing to rule in their favor, or who at least were uncertain about the authority and constitutionality of a commission such as the ICC. Among the restraints applied to the Interstate Commerce Commission by the U.S. Supreme Court were a ruling in 1896 that the Interstate Commerce Act did not give the commission the power to set rates (Cincinnati, New Orleans, and Texas Pacific Railway Co. v. Interstate Commerce Commission) and a subsequent decision that the ICC

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had no power over rates. If Congress had wanted them to have such power, it would have said so explicitly in the legislation (Interstate Commerce Commission v. Cincinnati, New Orleans, and Texas Pacific Railway Company [1897]). In 1897 (Interstate Commerce Commission v. Alabama Midland Railroad), the Court strengthened the railroads’ efforts to get ICC decisions overturned when it ruled that courts to which such decisions were appealed could revisit the evidence and reconsider a case in its entirety. As a result of rulings such as these, the U.S. Supreme Court put powerful tools in the hands of the railroads that resisted the regulatory efforts of the ICC, and the commission was effectively hamstrung. The result was that, during the first ten years of its existence, the ICC won only one of sixteen cases that went on appeal to the U.S. Supreme Court. In the early twentieth century, Progressive reformers used their increasing power to support passage by Congress of legislation designed to ban some of the most egregious practices used to influence competition, such as the paying of rebates and kickbacks. Some embattled railroad executives joined the campaign, which ultimately resulted in passage of the Elkins Act of 1903, the Hepburn Act of 1906, and the MannElkins Act of 1910. The 1903 act was designed to outlaw rebates by barring any variation from published rates in the fees railroads charged their shippers. The Hepburn Act, regarded by some as the biggest victory for the reformers, corrected some of the earlier weaknesses in the ICC’s ability to control rates. It gave the commission the power to review and revise rates, and, most important, strictly limited judicial review of these actions to findings of fact. The Mann-Elkins Act of 1910 extended the ICC’s control of rates even further, giving it the power to initiate review and revision of railroad rates. The U.S. Supreme Court gave added strength to these laws by adjusting their guidelines for reviewing related cases that came before it on appeal. In a 1907 ruling in Illinois Central Railroad Co. v. Interstate Commerce Commission, the Court indicated its intention to abide by the terms of the Hepburn Act, saying that it would no longer research the underlying facts in cases that came on appeal. Then Associate Justice Edward Douglass White, writing for the Court in Interstate Commerce Commission v. Illinois Central Railroad Company (1910), extended the Court’s tendency toward the use of judicial restraint in ICC cases, saying that in future the Court would consider only whether the action taken by the commission fell within its powers under the Interstate Commerce Act of 1910. It would not look behind the decision to determine the wisdom of the commission’s decision. This decision also indicated the Court’s intention to accept and support the use of the doctrine of administrative discretion in the creation of such government agencies. During the decade 1911–1921, the Court can be said to have been true to its word. It upheld or expanded the powers of the ICC in setting rates, in regulating business practices of the railroads, and in making determinations of the extent to which

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the ICC’s mandate allowed it to affect intrastate rail activity. The railroads, for their part, were less obstreperous about the regulation than they had been previously. Some scholars have posited that the changing attitudes toward the ICC during this period were in part indicative of the greater tendency among Americans to expect the federal government to play a larger role in the regulation of business and industry. The most frequent controversies involving the rulings of the ICC to come before the Court in this period were those involving rates. Although recently passed legislation allowed the ICC not only to review rates upon receiving complaints but also to initiate reviews and rate changes itself, there still remained areas of disagreement and frustration. In hearing and deciding these cases, the U.S. Supreme Court’s general tendency was to broaden the circumstances under which it would support the ICC. In the early part of the decade, one of the guidelines the Court used in evaluating the ICC’s decisions had to do with the amount of evidence on which the ruling was based. Although the Court did not go back and review all the materials itself, it looked at the types of information on which the commission had made its determination. A case in point is the ruling in Interstate Commerce Commission v. Union Pacific Railroad (1912), in which the commission had established rates for moving lumber from the west coast of the United States to Minnesota. Justice Joseph R. Lamar wrote a unanimous opinion in which he concluded that the ICC had had sufficient evidence on which to base its decision. He noted that other experts reviewing the same evidence might have reached a different conclusion, but that was no reason to reject what the ICC had done: Rate experts of acknowledged ability and fairness, and each acting independently of the other, may not have reached identically the same conclusion. We do not know whether the results would have been identically the same. For there is no possibility of solving the problem as though it were a mathematical problem. Still there was in this mass of facts that out of which experts could have named a rate. The law makes the Commission’s findings on such facts conclusive. (ICC v. Union Pacific, 550)

In another case the following year, Interstate Commerce Commission v. Louisville and Nashville Railroad (1913), the Court again upheld the rate-setting action of the ICC in reducing the rates the railroad charged between New Orleans, Louisiana, and Montgomery, Alabama. Justice Lamar’s unanimous opinion said that the commission had sufficient evidence for this ruling, but acknowledged that such a ruling was not to be accepted without question. There must always be an opportunity for the plaintiff railroad to request review of the ruling by the courts. Because of the complex nature of many of the cases that resulted from ICC rulings, there was considerable support in Congress in the early twentieth century for the

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creation of a special court to hear these cases on appeal. In 1910, Congress passed a law creating such a court. It proved, however, to be a less successful institution than its supporters had hoped. One of the provisions of the legislation was that the decisions of the Commerce Court would not be final, but could be appealed to the U.S. Supreme Court. This condition proved to be the Commerce Court’s undoing. During the three years that the Commerce Court was in existence, fourteen of its twenty-two opinions that were appealed to the U.S. Supreme Court were reversed by that body. This state of affairs made it glaringly apparent that the Commerce Court was accomplishing very little, and Congress passed legislation abolishing it in October 1913. An illustrative example of a case in which the U.S. Supreme Court overruled the Commerce Court can be found in Florida East Coast Railway v. United States (1914). In this case, the railroad in question objected to a reduction in its rates ordered by the ICC. The commission said that data showed that the cost of doing business had lessened and the higher rates were no longer needed. The Commerce Court agreed. The White Court, however, reversed this ruling in an opinion by Chief Justice White, agreeing with the railroad’s contention that the decision was unfair because the ICC had based its ruling on data collected from other lines in other parts of the country, and the conditions that had influenced those figures did not obtain in the case of the Florida Railroad. One of the most complicated issues both the ICC and the courts had to deal with concerned the extent to which the federal government could use its authority under the Commerce Clause to control rates of intrastate railroads. Traditionally these lines had argued that their rates were subject exclusively to regulation by the individual state, but the Court gradually became more accepting of the argument that there was a close relationship in most cases between intrastate and interstate trade where railroads were concerned. It is generally considered that some of the White Court’s most important rulings in regard to regulation of interstate commerce came in this area. A turning point in this area came in the so-called Minnesota Rate Cases (1913), which included appeals in three cases by the Northern Pacific, the Great Northern, and the Minneapolis and St. Louis Railroads. The railroad companies filed suit in federal court objecting to intrastate railroad rates that were lower than those the railroads were permitted to charge for carrying freight across state lines. The railroads contended that the state rates were confiscatory and would increasingly harm the companies’ ability to make a profit because they would force the lowering of interstate rates, as well. Justice Charles Evans Hughes, in a lengthy opinion running to ninetyeight pages, generally supported the power of the states to regulate intrastate rates. He said that states could set rates in situations where Congress had not yet acted. Congress could legislate on the relation of intrastate and interstate rates, and had done so by delegating authority to deal with this issue to the Interstate Commerce Commission. Hughes found that the rates set by the Minnesota regulatory commission were

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not confiscatory as applied to the Northern Pacific and Great Northern Railroads, but were in the case of the Minneapolis and St. Louis, which was nearly bankrupt. A refinement of this judgment came the following year in Houston, East and West Texas Railway Co. v. United States (1914), frequently referred to as the Shreveport Rate Cases. Businesses who engaged in shipment of goods between Shreveport, Louisiana, and towns in eastern Texas on the Houston, East and West Texas Railway protested that the railroad company unfairly favored its Texas customers by charging them rates that were lower than the fees for customers whose goods crossed the state line. When the Interstate Commerce Commission heard the case, it established new maximum rates for goods shipped from Texas towns to Shreveport. The U.S. Supreme Court upheld the decision of the ICC. Justice Charles Evans Hughes, writing for the Court, said that Congress had intended that the ICC’s power should reach “all matters having such a close and substantial relation to interstate traffic that the control is essential or appropriate to the security of that traffic” (Houston, 351). He said that the Interstate Commerce Act barred the commission from setting intrastate rates themselves, but not from regulating the relationship between interstate and intrastate rates. Wrote Hughes, “it is Congress, and not the State, that is entitled to prescribe the final and dominant rule, for otherwise Congress would be denied the exercise of its constitutional authority and the State, and not the Nation, would be supreme within the national field” (214). Aside from the ubiquitous rate cases, there were others in which the U.S. Supreme Court considered the objections of businesses to the ICC’s regulation of the ways in which they conducted their day-to-day business. For example, in Interstate Commerce Commission v. Goodrich Transit Company (1912), the Court agreed that the ICC could require the filing of reports by a company that was even partially engaged in interstate commerce. The Hepburn Act of 1906 had authorized the Interstate Commerce Commission to require the filing of such reports, which would then be submitted to Congress as a source of information. Although the Commerce Court had ruled that the ICC could ask only for information related to interstate commerce, Justice William R. Day disagreed. He ruled that the ICC could insist that the required reports contain information about all business enterprises a company was engaged in, even if some of them were wholly intrastate in nature. In a series of subsequent cases, the Supreme Court upheld the ICC’s argument that the same principles supported its requirement that companies engaged in interstate commerce file reports or provide testimony about political contributions made by the business. (See, for example, Lee Wilson Company v. United States [1917].) The Court was not willing to approve unquestioningly every action of the ICC and was willing to go back to the original Interstate Commerce Act on occasion to remind the agency what its limitations were. The case of Louisville and Nashville Railroad v. United States (1916) concerned the use of a railroad switching facility that

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had been constructed in Nashville, Tennessee, by two cooperating railroads. The Interstate Commerce Act said that a company that had built a switching facility for its own use did not have to make the facility available to its competitors. The two companies in this case argued that the same principle should apply to them. The ICC, on the other hand, said that since the two companies shared the facility, they should be willing to open it to competing companies, and ordered the companies in question to make the facility available for use by a third railroad. The U.S. Supreme Court split 5–4 in its ruling against the ICC. Justice Holmes, writing for the majority, argued that the ICC had exceeded its authority. He concluded that the provisions of the law did not require reciprocal sharing in a business arrangement such as this. Justice Mahlon Pitney dissented, joined by Day, Brandeis, and Clarke. In sum, the power of the Interstate Commerce Commission to regulate rail traffic in the United States grew during the first two decades of the twentieth century, both as a result of legislation strengthening its reach and as a consequence of the U.S. Supreme Court’s willingness both to validate the authority of the ICC and to back off and allow the agency to exercise that authority without being second-guessed or micromanaged by the judiciary.

Progressive Reform Legislation During the Progressive Reform Era, primarily in the period 1900–1914, interest groups prevailed upon Congress and the state legislatures to pass laws to correct some of the social ills they believed were corrupting American society. These problems were believed to have been fostered by, among other things, the rapid growth of urban populations, the influx of immigrants into the United States, and the terrible conditions under which factory workers found themselves compelled to live. Many of these problems were highlighted during these years in articles produced by investigative journalists whom President Theodore Roosevelt dubbed “Muckrakers.” Their articles were published in popular magazines of the time, such as McClure’s, and in bestselling books, such as Lincoln Steffens’s Shame of the Cities and Ida Tarbell’s two-volume history of the Standard Oil Company. As an increasing number of political candidates focused on these issues in successful campaigns for office, they fulfilled promises to their constituents and responded to the interests of lobbying interest groups, by sponsoring legislation designed to solve some of the problems. One of the best-known pieces of such legislation was the Pure Food and Drug Act of 1906. Support for government regulation in the production of these products grew after the publication of books and articles detailing the dangerous ingredients to be found in some patent medicines, and, particularly, after the publication of The Jungle, Upton Sinclair’s best-selling novel detailing conditions in the meatpacking indus-

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try in Chicago. Many states had passed regulatory laws, but they were not able to protect their citizens from questionable goods distributed through interstate commerce. The Progressives, believing that it was the job of the federal as well as the state governments to exercise police power (to protect the health, safety, and welfare of citizens), prevailed upon Congress, with the support of President Theodore Roosevelt, to pass a law providing for federal regulation of the production of these vital goods. It came as no surprise to most people that, almost immediately, businesses filed lawsuits challenging the reach, and even the constitutionality, of congressional power to legislate for the health, safety, and welfare of individual citizens. Objections to the regulatory laws were based on several grounds. Foremost was the position that the concerns in question were primarily local in nature and should fall under the exercise of state police power. Even those who accepted the argument that the Congress could base its power to regulate on the commerce and taxing powers questioned how extensive the reach of those powers was. To a certain extent, these debates reflected the competing positions of special interest groups, whether reformers or businessmen, and it fell ultimately to the courts to provide resolutions to the disputes. Well before the Court had the opportunity to address these issues under Chief Justice White’s leadership, it had laid groundwork for considering these constitutional questions in two cases that came on appeal early in the century. The first, Champion v. Ames (1903), dealt with a federal law passed by Congress in 1895 outlawing the shipment of lottery tickets in interstate commerce. The Court reiterated its view of the broad extent of the power of Congress to regulate interstate commerce, even to the extent of barring completely the shipment of some items between states. A year later, the Court expanded its interpretation of the ways in which Congress could use the taxing power for regulatory purposes. Ruling on a law that had levied a tax on oleomargarine with the ultimate result of limiting or banning the sale of the artificially colored product, the Supreme Court ruled in McCray v. United States (1904) that if Congress possessed a specific power, it was not the role of the Court to second-guess its use of that power. One of the first opportunities the U.S. Supreme Court under the leadership of Chief Justice White had to deal with such regulatory laws came in a challenge to the Pure Food and Drug Act in the case of Hipolite Egg Company v. United States (1911). The Hipolite Egg Company had shipped in interstate commerce, from St. Louis, Missouri, to Peoria, Illinois, cases of preserved eggs that were intended to be used by an Illinois baker. The federal government filed suit against the company, charging violation of the Pure Food and Drug Act because one can of the eggs contained boric acid and could, therefore, be branded “adulterated.” The district court having ruled in the government’s favor, the egg company appealed to the U.S. Supreme Court. The challenge questioned the constitutionality of the law, on the grounds that the Congress had no federal police power. The plaintiffs also questioned whether the federal govern-

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ment could seize the eggs, which were no longer in shipment, but had come to rest in a warehouse in Peoria. The Supreme Court found little difficulty in disposing of the case and upholding the Pure Food and Drug Act in the process. Justice William McKenna wrote for a unanimous Court, concluding that the federal government did have the authority to seize illegal articles of trade, which, according to the law, the preserved eggs were. He also noted that the Court had long held, beginning as early as Chief Justice John Marshall’s decision in Brown v. Maryland (1827), that the federal government could control products shipped in interstate commerce as long as they remained in the original package. McKenna went on to give the Court’s stamp of approval to federal action in such cases, writing: We are dealing, it must be remembered, with illicit articles. . . . There is here no conflict of national and state jurisdictions over properly legal articles of trade. The question here is whether articles which are outlaws of commerce may be seized wherever found, and it certainly will not be contended that they are outside the jurisdiction of the National Government when they are within the borders of a state. (Hipolite, 57–58)

In the following years, the conflict between state and federal police powers as related to the Pure Food and Drug Act was raised in a number of other cases. In 1912 the Court decided Savage v. Jones, which questioned whether a state could have standards for a product different from those established by Congress. The State of Indiana had set certain standards for animal foods and specified that these were to apply to products entering the state in interstate commerce. The Court concluded that the state and federal laws were different and both were allowed to stand. They said that Congress, in passing the Pure Food and Drug Act of 1906, had not intended to preempt the field. In McDermott v. Wisconsin (1913), the Court did find a limit to a state’s regulation. In this case, the State of Wisconsin had established requirements for labeling syrup that was mixed with glucose. If the product contained more than 75 percent glucose, it had to be labeled as glucose with other flavors added. Retailers in the state were subsequently fined for selling such a product, which had been brought into the state from Chicago, with a different type of label, one that was federally authorized. The Wisconsin act required that the federally authorized label be removed and replaced with one meeting the standards of the Wisconsin law. Writing for the majority, Justice William R. Day concluded that the Wisconsin act, while in and of itself acceptable, could not be allowed to stand because it conflicted with federal guidelines. Similar cases questioning the extent of federal police power to regulate labeling dealt with the controversy surrounding truth in labeling of patent medicines. One of

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the earliest of these cases decided by the U.S. Supreme Court prompted Congress to add a clarifying amendment to the Pure Food and Drug Act. The suit United States v. Johnson (1911) concerned the misleading labels on a patent medicine produced by a Dr. Johnson. The medicine for sale was labeled “cancerine tablets” and “Dr. Johnson’s Mild Combination Treatment for Cancer” (Bickel and Schmidt 1984, 227). The federal government filed suit against Johnson for knowingly mislabeling the worthless tablets. In a surprising decision, Justice Oliver Wendell Holmes Jr. found for the defendant. He said that the law did not punish false “commendations,” but only actual false labeling concerning the ingredients of the drug. Justice Charles Evans Hughes, in a dissent in which he was joined by Harlan and Day, argued that Congress had not meant to restrict application of the law in the way that Holmes contended. He believed that mislabeling of any kind was punishable under the law. Shortly after this decision was announced, Secretary of Agriculture James Wilson urged President William Howard Taft to appeal to Congress to amend the law so as to close the apparent loophole that Holmes’s decision identified. The Congress responded by passing, on August 23, 1911, an amendment to the Pure Food and Drug Act that made it punishable to make false or unsubstantiated claims about the benefits of a particular product. The effectiveness of this amendment became clear in a Court ruling based on it a few years later. The case entitled Seven Cases of Eckman’s Alternative v. United States (1916) concerned a patent medicine that, its label claimed, had proven effective in preventing pneumonia and was also useful as a treatment for tuberculosis. Justice Hughes, backed by a unanimous Court, wrote a decision that indicated that the amendment had achieved the reformers’ objective. The Court’s ruling punished the manufacturer for making these unsubstantiated claims. The Court gradually expanded the restrictions on labeling yet further. In Weeks v. United States (1914), it heard a case concerning a product labeled lemon oil. This substance, sold in interstate commerce by one Oscar J. Weeks, was in fact a mixture of alcohol and citral, a substance derived from lemon grass. Weeks’s salesman represented the product to his customers as lemon oil. The Court concluded that Weeks could be convicted of misbranding the article, even though the label was not specifically false. They agreed that the statute was designed to punish misrepresentation of this sort and that Weeks had concurred in the deception by allowing his salesman to make this representation. In addition to controlling labeling through the Pure Food and Drug Act, Congress used the Harrison Narcotic Drug Act of 1914 to regulate distribution of certain substances. The provisions of this law used the taxing power of Congress as a method of regulation. The constitutionality of this measure was questioned in the courts in United States v. Doremus (1919), which concerned the regulation of the sale of heroin. Congress required that anyone who sold heroin must register with the com-

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missioner of Internal Revenue and pay a token annual tax of one dollar, and must keep a record of each transaction. In order to purchase the drug, a prospective purchaser was required to obtain an order form from the commissioner (Harrison Narcotic Drug Act of December 17, 1914, ch. 1, 38 stat. 785). The suit originated when Dr. C. T. Doremus failed to use the required form in selling 500 tablets of heroin to a drug addict. His defense questioned whether the taxing power of Congress could be used for regulatory purposes, a timely question in view of the Court’s recent opinions in cases such as Hammer v. Dagenhart (1918). The Court, in an opinion written by Justice William R. Day, concluded that the Harrison Act was, in fact, constitutional. He said that the only requirement for taxes levied by the Congress was that they be applied in a uniform manner. Congress, he said, had complete discretion in deciding what substances or transactions would be taxed, and it was not for the courts to inquire into the motives behind the legislation. Chief Justice White dissented in an opinion joined by Justices McKenna, Van Devanter, and McReynolds. He wrote that he agreed with the lower court’s ruling that the Harrison Act was unconstitutional because it interfered with the police powers of the states (Pratt 1999, 221).

Labor Legislation The White Court considered a variety of issues related to labor during its ten years. The Progressive Era and its emphasis on social reform had prompted the passage of a series of laws at both the state and national levels designed to improve the circumstances of labor and to protect workers while improving conditions under which they toiled. Predictably, employers sought repeal or at least restrictions on the applications of such laws. The Court was also asked to rule in a variety of cases having to do with the provisions of these laws and their application. These included such issues as the constitutionality of employer liability laws, the terms of enforcement for workmen’s compensation laws, the circumstances under which governments could pass wage and hour laws, and the conditions under which employers could obtain injunctions against labor union activities. For the most part, the White Court built upon the precedents that had been laid down in the previous decade, emphasizing state and federal police power to legislate for the health, safety, and welfare of citizens, but exhibiting strong consideration for the interests of business and proving no more sympathetic to the rights of unions than the previous Courts had been. One of the key concerns of labor reformers in the early twentieth century was legislation that would make employers responsible for workers injured on the job. Employers had long avoided such responsibility by arguing their cases on the basis of common law doctrine, such as assumption of risk, in which the worker, by taking the

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job, acknowledged that there might be risk of injury involved; contributory negligence, in which the factory owner tried to prove that the employee’s actions had been at least partly responsible for the injury; or the fellow servant rule, which said the employer was not responsible if another employee’s actions had been a factor in the injury. During the Progressive Era, numerous states passed employer liability laws, but these were frequently overturned or resulted in a hodgepodge of regulations differing from one state to another. Reformers prevailed upon the Congress to pass a federal employers’ liability law in 1906, but this was shortly overturned by the Supreme Court on the grounds that it was overbroad (First Employers’ Liability Cases [1908]). In 1908 the Congress passed a revised version, and it was this law that came before the White Court for consideration. A large number of lawsuits were filed by the railroads challenging the law on a number of bases, including the power of Congress under the Commerce Clause to regulate the relationship between railroads and their employees, particularly when some of those employees were not actually involved in interstate commerce. Some had also challenged the power of Congress to legislate on a subject they thought more properly reserved for the state legislatures. In 1911 in Kiernan v. Portland (1911), the Court had indicated its approval of that portion of the new law that applied to workers engaged directly in interstate commerce, but it was not until the following year that it looked at the law in its entirety. The Second Employers’ Liability Cases, or, more specifically, Mondou v. New York, New Haven, and Hartford Railroad Company (1912), tested the constitutionality of the second federal liability law, which had been passed by Congress in 1908. The chief grounds for the challenge to the law was that, in passing it, Congress had overextended its powers under the Commerce Clause to include regulation of the type of relationship between employer and employee that should more properly be controlled by state governments under their police power. Justice Van Devanter wrote the opinion for a unanimous Court. Congress had corrected the overbreadth of the original act, he said, and had subsequently fashioned a bill that properly exercised the authority of the Congress under the Commerce Clause. This power, according to Van Devanter, “Is complete in itself, extends incidentally to every instrument and agent by which such commerce is carried on, may be exerted to its utmost extent over every part of such commerce, and is subject to no limitations save such as are prescribed in the Constitution” (Mondou, 47). Van Devanter ruled that the power of Congress extended to all aspects of accidents that might have an impact on the furtherance of interstate commerce. He also confirmed that the federal liability law was applicable in state courts, even though its provisions might conflict with that state’s liability statutes. This ruling was widely hailed by reformers as an important victory in the struggle to protect and enhance the rights of workers.

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The second decade of the twentieth century saw the campaign for the passage and enforcement of workmen’s compensation legislation meet with increasing success. Numerous questions arose about the reach and application of these laws, which the U.S. Supreme Court was called upon to address. These involved questions about the reach of the legislation into areas that could actually be described as involving interstate commerce, and the potential conflict between state and federal compensation laws. In these cases, the goal of the court was to preserve the divide between state and federal sovereignty, sometimes at the expense of the laborer suing for compensation. Among other questions needing resolution were several that dealt with the circumstances under which an employee was entitled to compensation. A frequently asked question aimed at resolving issues related to questions about which—federal or state—liability laws should prevail in specific circumstances. In New York Central Railroad Co. v. Winfield (1917), the Court considered the case of a man covered by federal liability laws because he worked in interstate commerce. When he lost an eye to injury while he was repairing a railroad track, he could not recover compensation under the federal law because the railroad had not been at fault. He then tried to recover under the New York State workmen’s compensation law because it did not require proof of negligence. The U.S. Supreme Court denied his claim because, it said, the federal law prevailed. Passage of federal compensation legislation had preempted the field. Justice Willis Van Devanter wrote for a Court that divided 5–2. Brandeis, joined by Clarke, dissented. In an opinion that would expand protection for the worker, Brandeis argued that claims under state law should not be denied unless the law passed by Congress clearly conflicted with the state law. That was not the case here. It could be argued that the two laws complemented each other. A second case involving the New York workmen’s compensation law was before the Court at the same time. This one, New York Central Railroad Co. v. White (1917) concerned the basic constitutionality of the law itself. The New York compensation law was designed to protect employees engaged in dangerous occupations, provided by the awarding of compensation by an administrative board without the necessity of a trial or the application of the traditional common law guidelines. One of the bases of the New York Central Railroad’s challenge to the law was its contradiction of common law guidelines, in spite of a ruling two years earlier in Jeffrey Manufacturing Co. v. Blagg (1915), in which Justice William R. Day had indicated that the Court was open to revision of those guidelines. Justice Mahlon Pitney wrote the opinion for a unanimous Court in New York Central Railroad Co. v. White. He ruled that the alterations that New York had made in the common law by passing this workmen’s compensation statute did not make it unconstitutional. He argued that changing conditions of modern industry made changes in the common law inevitable, and these changes should be allowed by the courts unless they were altogether unreasonable.

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A second series of cases involving the New York workmen’s compensation law concerned the geographical extent of its application. Could employees working in New York harbor, for businesses engaged in interstate and foreign commerce, claim coverage of the New York state workmen’s compensation law? In Southern Pacific Company v. Jensen (1917), the Court ruled that they could not. Southern Pacific Company v. Jensen dealt with the death of a man working on a steamship owned by the Southern Pacific Railroad Company. He was killed while unloading the ship in New York harbor, and his heirs were awarded compensation under the New York compensation law. When the case reached the U.S. Supreme Court, however, Justice McReynolds, writing for the Court, denied the award. His opinion contended that the ship, regardless of ownership, was engaged in maritime matters, which were reserved by the U.S. Constitution to control by the Congress. If state compensation laws were allowed to supersede federal jurisdiction in such cases, Mc Reynolds said, the result could be serious interference with the Congress’s exercise of its constitutional powers. Justice Oliver Wendell Holmes Jr. filed an outraged dissent in the case, in which he was joined by Brandeis and Clarke. Holmes contended that the state could in fact pass a workmen’s compensation act that would cover accidental deaths in harbors where, technically, the event fell under maritime jurisdiction. If Congress wished to preempt the field from state legislation, it might do so, but so far no such statute had been passed. Holmes’s argument prompted the passage by Congress in October 1917 of an amendment to the Judiciary Act of 1789, spelling out the powers of the federal government in areas of maritime jurisdiction and adding a caveat that allowed workmen’s compensation claimants the option of seeking benefits under state compensation laws. The culmination of this battle, so far as the White Court was concerned, came in a case testing the constitutionality of the 1917 act. The case of Knickerbocker Ice Co. v. Stewart (1920) concerned the death of William M. Stewart while at work on a boat in the Hudson River. Applying the terms of the act of 1917, his widow filed for, and received, compensation under the New York State workmen’s compensation act. When the case came on appeal to the U.S. Supreme Court, the Court overturned the award. The decision for the majority by Justice William McReynolds concluded that Congress did not have, under its maritime jurisdiction, the power to incorporate provisions for compensation by the states. He emphasized, instead, the importance of Congress’s preserving the uniformity of laws applying to all aspects of the maritime service. Justice Holmes dissented, joined by Brandeis, Clarke, and Pitney. His arguments reflected very closely those he had put forward in Jensen, emphasizing what he considered the broad powers of Congress to legislate in this area as it saw fit and downplaying the importance of maintaining uniformity at the expense of adequate compensation of the workers who so desperately needed it.

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Some employers questioned not the application of the workmen’s compensation law passed in their states, but the way in which they were forced to put aside money to guarantee that the compensation was forthcoming. Although some states gave employers several options for ensuring their ability to pay, the State of Washington passed a law requiring that the employer deposit money in a state account from which compensation would be paid. Business owners objected, in particular, to the law’s provision that based the amount an individual employer must deposit in the fund on the relative degree of danger inherent in his particular industry. In Mountain Timber Co. v. Washington (1917), one employer objected, arguing that he should not be judged on the conditions in his industry as a whole, but rather, should be allowed to set up his own account or to decide how he would ensure that he was prepared to compensate his employees. The U.S. Supreme Court rejected his argument. Justice Mahlon Pitney wrote the majority opinion, upholding the state law as a valid exercise of state police power and concluding that the particular details of the act were allowable as exercise of the legislature’s discretion. The need for sturdy workmen’s compensation legislation was clearly evidenced by cases that illustrated how far some employers were willing to go in their efforts to avoid meeting their obligations for compensation. This was illustrated by a particularly grisly case that reached the U.S. Supreme Court in 1915. In St. Louis, Iron Mountain, and Southern Railway v. Craft, the Court was called upon to decide whether an employee had consciously suffered before he died. The issue was whether the employer must pay to his estate the amount the law specified for pain and suffering. Because of the complexity of the evidence, the Court remanded the case to a jury for a decision, but also noted the difficulty of defining the actual existence of pain and suffering in cases such as this. Labor reformers in the late nineteenth and early twentieth centuries fought an uphill battle in their campaign to get government to regulate working conditions for wage earners. Wage and hour laws passed by state legislatures were almost always challenged in the courts, usually on the grounds of violation of freedom of contract. Employers argued, and the courts generally agreed, that the Fourteenth Amendment provision that “nor shall any State deprive any person of life, liberty, or property without due process of law” should be interpreted to prevent any restriction, by the government or anyone else, on the freedom of employer and employee to negotiate terms of employment without interference. The U.S. Supreme Court had earlier allowed some exceptions to this, in cases of hazardous occupations, or laws designed to “protect” women, but, on the whole, by the time the White Court began considering such cases, the doctrine of freedom of contract was still the prevailing guideline. A number of cases that reached the Supreme Court in the decade 1911–1921 provided opportunities for the White Court to refine the interpretation of the doctrine and, in several instances, to come down on the side of the employee. The justices were

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not unanimous on these issues, however, and frequently proved unwilling to interfere with the right to negotiate wages. By far the most controversial issue of the period had to do with the passage of federal legislation designed to put an end to child labor in factories. Although the Court’s record on behalf of the laborer improved during this decade, many of the goals the reformers had set for themselves remained to be achieved. In 1915 Justice Charles Evans Hughes wrote opinions for the majority in two cases (Miller v. Wilson and Bosley v. McLaughlin), in which he approved laws establishing eight-hour days for women in certain occupations. Hughes explained in the opinion in Miller the principle that guided the Court: “the question is whether the restrictions of the statute have reasonable relation to a proper purpose” (Miller, 380). For example, he believed the effort to regulate the hours of student nurses challenged in Bosley was justifiable, as argued in a pamphlet on the subject, provided as a part of attorney Louis Brandeis’s brief. Progressive-controlled state legislatures had in recent times begun increasingly to exercise their police power on behalf of blue-collar workers, and the Court was now recognizing their power to do this. One of the greatest strides made by the White Court in upholding the police power of the states to pass labor reform legislation came two years later. The State of Oregon had passed a law that mandated a limit of ten hours’ work per day for people in all blue-collar occupations, except in certain special circumstances. The question that came to the Court was whether these types of regulations, which heretofore had applied only to women and those in special occupations, could not be applied generally to people of both genders in all lines of work. F. O. Bunting, the owner of a flour mill, had required an employee to work more than ten hours per day, but had refused to pay him overtime. When charged with violating the Oregon law, he challenged it as a wage law that violated freedom of contract. Professor Felix Frankfurter of the Harvard Law School, longtime friend and confidante of Louis Brandeis, argued this case before the U.S. Supreme Court in January 1917. Brandeis, who had earlier been involved in the case, had handed over responsibility for it when he was named to the high court by President Woodrow Wilson in 1916. Brandeis naturally recused when the case was decided. The Court upheld the Oregon law in Bunting v. Oregon (1917), building on the earlier decision in Muller v. Oregon (1908) and taking advantage of the statistical data and other sociological evidence provided in the attorneys’ briefs. Justice McKenna wrote for the majority. White, Van Devanter, and McReynolds dissented without comment. McKenna rejected the contention that the law was actually a ruse employed to achieve the real goal of legislating the provision for overtime pay. He concluded, rather, that the provisions concerning overtime pay were actually included in an effort to deter employers from requiring their workers to stay on the job an excessive number of hours, as Bunting had done. The struggle to establish a principle that freedom

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of contract could be restricted when the health, safety, and welfare of the workers was involved had achieved another victory. Having reached the point where it was willing to uphold state legislation fixing maximum work hours per day, regardless of the circumstances or the gender of the workers, the Court was faced in 1917 with a dilemma over the power of the Congress to set minimum wages. In the midst of its preparations for the possibility of U.S. entry into World War I, the federal government was faced with the likelihood of a strike by railroad workers. When it became apparent in the summer of 1916 that the opposing sides could not reach a settlement, Congress stepped in and attempted to resolve the situation by passing the Adamson Eight-Hour Day Act. This set limits on the number of hours per day railroad employees could be required to work, with provision for time and a half for any hours over the limit. The more controversial portion of the law set temporarily a minimum wage for the workers. Several railroad companies immediately filed suits asking that the minimum wage portion of the law be enjoined from enforcement. The opposing sides in this dilemma looked to the U.S. Supreme Court for a resolution. Chief Justice White wrote the opinion for a sharply divided Court in Wilson v. New (1917). Having ruled on maximum-hours laws in numerous cases, beginning with Muller, and, most recently, Bunting, the Court quickly disposed of this issue, upholding the power of Congress to regulate hours of workers in interstate commerce. Unwilling to confirm the constitutionality of Congress’s power to set wages for workers engaged in interstate commerce, however, White said that Adamson was in actuality an hours law and that the portion of the law dealing with wages, which was limited in its duration, was included only to avert a strike. He said that federal power over wages was limited only to those situations in which the interested parties had themselves been unable to come to an agreement. Although the White Court made important strides in the approval of some types of labor reform legislation, the hesitancy with which they ruled on the Adamson Act was an indication that they were still considering any case very carefully and analyzing the constitutional implications of each law. The willingness of the justices to overturn a federal child labor law was further indication of their careful scrutiny. The topic of child labor was one that had garnered prolonged and intense scrutiny from Progressive reformers. In the first decade of the century, almost every state passed some kind of law restricting the use of child labor, although some were more strictly enforced than others. Businesses in states that cracked down argued that they were at a disadvantage compared to establishments in states that did not. The reform effort varied from region to region as well, with owners of textile mills in the South among the strongest opponents of bans on child labor. Finally, in 1916, Congress was persuaded to legislate on the subject in the hope of establishing some uniformity, and did so in the Keating-Owen Child Labor Act of 1916. The law made it a crime to ship in

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interstate commerce any products of mines or factories that had employed child labor within the past thirty days. Attorneys for a textile mill in Charlotte, North Carolina, almost immediately filed a test case. In arguments before the Court on April 15 and 16, 1918, they challenged the law on the grounds that Congress was, in reality, using its authority under the Commerce Clause to regulate child labor. Because it could not legislate on the subject directly, it was using this roundabout way of achieving its purpose. The attorneys arguing for the government cited the doctrine of federal police power and referred to the Court’s decision in favor of the Mann Act in Hoke v. United States (1913) for precedent. Even though a number of the justices appeared to be impressed with the Brandeis-like brief prepared in Hammer v. Dagenhart by the attorney general in defense of the legislation, they overturned the act by a vote of 5–4 in a decision handed down on June 3, 1918. Justice William R. Day wrote for the majority, which also included White, Van Devanter, Pitney, and McReynolds. Harkening back to the Court’s reason in United States v. E. C. Knight Company (1895), he took the position that the act was in reality an attempt to regulate production, and since production was not a part of commerce, the law was unconstitutional. He further stated that the Commerce Clause did not give Congress power to legislate to even out regulations that put some states at a disadvantage. He charged that such legislation constituted a threat to the principles of federalism. Justices Holmes, McKenna, Brandeis, and Clarke dissented. Justice Holmes wrote an opinion in which he took the position that regulating child labor was an acceptable indirect effect of regulation of interstate commerce. He charged that the majority were allowing their own morals and personal opinions to influence their judgment in the case. He cited the long list of precedents in which the Court had approved the use of the Commerce Clause for regulatory purposes. That Holmes’s opinion more closely reflected public sentiment on the issue was reflected in Congress’s prompt move to pass a second child labor law. In cases involving the activities of labor unions, the White Court repeatedly followed the example of its predecessors in coming down on the side of the employer. The Court supported the use of injunctions to limit the rights of unions to engage in boycotts or to recruit laborers for membership. Even after passage of the Clayton Anti-Trust Act of 1914, containing a provision designed to exempt unions from subjection to injunctions under antitrust laws, the Court approved the use of these court orders under certain circumstances. The Court also protected other antiunion devices employed by businesses, arguing that they fell under the protection of the doctrine of liberty of contract. One of the early cases involving union activity concerned the efforts of the American Federation of Labor, under the leadership of Samuel L. Gompers, to organize a secondary boycott of a company whose workers were engaged in a strike. The Bucks Company followed the by then common practice of securing an injunction against the

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boycott. Meanwhile, union leaders had published in their newsletter articles urging union members not to buy the products of the company in question, the Bucks Stove and Range Company. In response to this, the Bucks Company secured a criminal injunction enjoining the publication of the exhortations. Gompers and other leaders of the American Federation of Labor responded by claiming that the injunction violated their First Amendment right to freedom of speech. The White Court heard arguments in this case in January 1911 and ruled unanimously against the union leaders on May 15, 1911. Justice Joseph Rucker Lamar wrote the opinion of the Court in Gompers v. Buck’s Stove and Range Company (1911). The opinion took no notice of the civil liberties argument proffered by the defendants. Rather, the case was actually decided on a technicality, Lamar explaining that the trial court had treated the contempt charges in question as civil in nature, rather than criminal. He went on, however, to back up the use of the injunctions in labor disputes, saying that the Court frowned on any action that was damaging to property rights. The White Court exhibited its support of the doctrine of liberty of contract in its decisions in two cases dealing with the use of yellow-dog contracts. Employers often required prospective employees to sign such contracts, promising not to engage in union activity while they were employed by the company in question. In 1908 the U.S. Supreme Court under Chief Justice Melville Fuller had overturned a federal law outlawing the use of yellow-dog contracts by companies engaged in interstate transport of commerce. In Adair v. United States (1908) the Court invalidated the Erdman Act of 1898. The White Court took much the same position in a case arising at the state level. The case in question, Coppage v. Kansas (1915), challenged a 1903 Kansas statute outlawing the use of yellow-dog contracts. When the superintendent of a railroad fired an employee for refusing to sign such a contract, he was charged and convicted under the act. T. B. Coppage appealed the conviction, charging that it violated his liberty to contract. Justice Mahlon Pitney wrote for six members of the Court in overturning the Kansas statute, referring to the decision in Adair as precedent. He said that the federal law had violated the freedom of employer and employee to negotiate guaranteed by the protection of liberties under the Fifth Amendment. In the same way, these rights were protected from state encroachment by the due process clause of the Fourteenth Amendment. Two years later the Court reiterated its position in its decision in Hitchman Coal and Coke Co. v. Mitchell (1917). The Hitchman Coal and Coke Company required the men it hired to sign yellow-dog contracts promising not to engage in union activity while employed by the company. In spite of this restriction, John Mitchell, president of the United Mine Workers (UMW), attempted to recruit the miners for membership in his union. The Hitchman Company obtained an injunction against the leader of the UMW, charging that he was acting in violation of the workers’ contracts. The U.S.

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Supreme Court agreed. Justice Mahlon Pitney wrote the opinion for the 6–3 majority, affirming the right of the employer to include such restrictions in the terms of employment. Justice Louis D. Brandeis produced in response one of his first dissents as a member of the Court, arguing that union membership was legal and that the union leader’s efforts to recruit the miners could no more be termed coercive, than could the restrictions imposed by the employers (Pratt 1999, 200–201). Despite passage of the Clayton Anti-Trust Act in 1914, the U.S. Supreme Court continued to be sympathetic to the interests of business in confrontations with unions, and in its last session the White Court issued a ruling that created a major loophole for allowing the continued use of injunctions against unions, in spite of the provisions of the Clayton Act. In Duplex Printing Co. v. Deering (1921), a union engaging in a secondary boycott claimed that the Clayton Act protected it from being subjected to an injunction. The Court voted 6–3 against the union in January 1921, Justice Joseph R. Lamar writing for the majority. He held that union activity interfering with interstate commerce was enjoinable under the antitrust laws. Furthermore, the union was engaging in a secondary boycott. The provision of the Clayton Act in question, Section 6, offered protection only to unions that were engaged in action directly related to their own working conditions. Justice Brandeis dissented, but to no avail. The ruling in Duplex was the prevailing precedent until the passage of the Norris-LaGuardia Act in 1932 (Hall 1992, 240).

Racial Discrimination The U.S. Supreme Court under Chief Justice Edward Douglass White decided only a small number of cases dealing with issues of civil rights. During the period, Jim Crow policy still held sway throughout the South, and there was not strong sentiment for its undoing. The Court did make a few rulings that had the effect of defending the rights of blacks, but, for the most part, did so without facing issues of discrimination headon. The cases were often strengthened by the arguments advanced by the recently formed National Association for the Advancement of Colored People (NAACP), but the justices were more likely to decide the cases on grounds of property rights or federal versus state sovereignty than on specific civil rights grounds. The first civil rights case to be decided after White took the center chair was a debt peonage case, Bailey v. Alabama (1911). This case challenged the use of a type of law common in the South after Reconstruction that punished by imprisonment a person who failed to fulfill the terms of a labor contract. The U.S. Supreme Court actually ruled twice, on different aspects of the case, during a period of three years. The case in question involved a man named Bailey who had signed a contract to work for a year and was paid $15.00 in advance. He would earn $12.00 per month and repay the

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advance at the rate of $1.25 per month. If he left the job early, he must repay the advance immediately, or face imprisonment if he did not. The Alabama debt peonage law provided that breach of such a contract could be treated as evidence “of the intent to injure or defraud his employer” (1903 Alabama Acts, 345–346). Bailey left the job after a month, did not repay the advance, and was placed in jail. In the initial case, his attorney petitioned for a writ of habeas corpus on the grounds that the law was a violation of both the Thirteenth Amendment protection against involuntary servitude and the Fourteenth Amendment protection of individual liberty. The Alabama Supreme Court denied the petition. Black leader Booker T. Washington recruited support to make possible an appeal to the U.S. Supreme Court. Justice Oliver Wendell Holmes Jr. wrote for the Court in Bailey v. Alabama (1908), deciding in favor of the State of Alabama. He argued that the case challenging the constitutionality of the Alabama debt peonage law was premature, because Bailey had not yet been tried. The plaintiffs, therefore, had not yet developed the grounds on which they based their claims that the law was unconstitutional. Justice John Marshall Harlan dissented, saying that the state court should have decided the procedural point. Since it had not, the case had correctly come to the U.S. Supreme Court on a writ of error because the Alabama Supreme Court had decided a question concerning the U.S. Constitution incorrectly. The second case of Bailey v. Alabama, decided in 1911, was brought on appeal after Bailey was tried and convicted. In arguments made before the U.S. Supreme Court on October 20 and 21, 1910, Bailey’s attorneys argued that the Alabama debt peonage law was designed to fall heavily on black laborers. They pointed out that almost all farm laborers in the South were black and it was often the case that such individuals were compelled to enter into such agreements because they needed the advance to pay off debts previously incurred. U.S. attorney general George Wickersham echoed these arguments in an amicus brief. The attorney general for Alabama, on the other hand, said this was merely a case of taking property fraudulently, and race did not enter into it. The Court voted 5–2 to overturn the Alabama law. Justice Charles Evans Hughes wrote for the Court. Holmes dissented, with Lurton concurring in Holmes’s opinion. Hughes’s opinion refused to attach any importance to the fact that the defendant was black, as well as to the argument that the debt peonage law was racially motivated. Rather, he struck down the law as violating the Thirteenth Amendment provision against involuntary servitude. He said Alabama could “punish contracting for an advance with intent to defraud, but since the statute treated breach without repayment alone as prima facie evidence of fraud, and thereby permitted a jury to convict on no other evidence, its ‘natural operation and effect’ was to punish mere breach.” Although his opinion did not note specifically the burden the law placed on black laborers, it is clear that Hughes understood the statute’s impact:

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Without imputing any actual motive to oppress, we must consider the natural operation of the statute here in question . . .and it is apparent that it furnished a convenient instrument for the coercion which the constitution and the Act of Congress forbid; an instrument of compulsion peculiarly effective as against the poor and ignorant, its most likely victims. There is no more important concern than to safeguard the freedom of labor upon which alone can enduring prosperity be based. (Bailey, 865)

Justice Holmes, joined by Lurton, wrote one of his longest dissents in response to this ruling. He agreed with Hughes that race ought not to be an issue in the case. Rather, he said the law was reasonable because it simply added a criminal penalty to what would normally be a civil action for breach of contract. He said the law gave the jury the option of deciding whether fraud had been committed and of convicting or acquitting on that basis. He argued that agreement to a contract did not constitute slavery. Scholars, both then and later, recognized the decision in Bailey as a major Progressive advance (Bickel and Schmidt 1984, 871). Although it was based at least as much on concern about freedom to contract as on the rights of poor black laborers, many felt that it signaled to southern states that there were limits on their power to impose oppressive restrictions on those who felt compelled to enter into binding labor contracts. Most southern states reviewed their laws and made necessary adjustments to accomplish their goals while complying with the position taken by the Court in Hughes’s opinion. Three years later the court dealt with a different form of debt peonage in a test case from Alabama that challenged the state’s criminal-surety law. A number of southern states had passed such laws, which provided that a person convicted of a minor crime could, instead of being imprisoned, contract with an employer who would pay his fine and court costs in return for the man’s labor for a specified period of time. The question was whether this system violated the federal antipeonage statute, which had been passed in 1867 to implement the Thirteenth Amendment’s ban on involuntary servitude. The case in question had been set up as a test case by the U.S. Justice Department following investigation of the operation of the debt peonage system in Alabama. An employer named J. A. Reynolds was indicted for violating the federal statute by contracting to pay the fines of a man named Ed Rivers, in return for which Rivers agreed to work for Reynolds for nine months and twenty-four days for $6 per month plus lodging, board, and clothing. The situation was complicated by the fact that Rivers had failed to honor his obligation, was brought back before the local court, and, having been convicted, entered into a second debt-surety agreement with a man named F. W. Broughton. In arguing the case before the U.S. Supreme Court, Alabama attorney general Robert C. Brickell defended the debt-surety system as a humane alternative to impris-

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onment. It provided better conditions under which the convict could work off his debt to society and at the same time furnished much-needed labor for employers. U.S. solicitor John W. Davis, arguing the case for the Justice Department, disagreed, contending that the system was a violation of the federal law because it allowed a private citizen, the employer of the convict, to decide the length and terms of service. The U.S. Supreme Court, in a unanimous opinion written by Justice William R. Day, overturned the Alabama law in United States v. Reynolds (1914). As had those writing in Bailey v. Alabama, Day completely ignored the racial aspects of the case and the fact that the overwhelming number of convicts caught up in the debt-surety system were blacks. Instead, he argued that the law was in violation of the federal antipeonage statute and, thus, of the Thirteenth Amendment, because it perpetuated a form of involuntary servitude. Justice Holmes wrote a brief statement concurring with Day’s conclusions. A type of legislation directly linked to the Jim Crow policies of post–Civil War years was that which attempted to implement some variation of the grandfather clause. The grandfather clause had become a common feature in state election laws in the South after passage of the Fifteenth Amendment to the federal Constitution, which had barred restriction of a person’s right to vote because of race, color, or previous condition of servitude. The grandfather clause either restricted a person from voting unless he or an ancestor had been able to do so before 1867 (the year the Fifteenth Amendment was passed), or, more commonly in the early 1900s, exempted from literacy tests and other onerous burdens persons who could fit these characteristics. A series of three suits, known collectively as the Grandfather Clause Cases, gave the U.S. Supreme Court the opportunity to end this discrimination in 1915. The most famous of the cases, Guinn and Beal v. United States (1915), came to the court from Oklahoma. It was based on a permanent grandfather clause that the state had enacted upon achieving statehood in 1910 and was brought by an individual who was concerned that it was being used not only to prevent blacks from voting but also as a device to restrict total Republican vote, as well. After some considerable lobbying by interested parties, the U.S. Justice Department joined the case, as well. The case was argued on October 17, 1913, and decided on June 21, 1915, by a vote of 8–0. McReynolds recused because of the earlier involvement in the case of the Justice Department when he was attorney general. Chief Justice White wrote the opinion of the Court, declaring that the Oklahoma law was a violation of the Fifteenth Amendment. Even though the law did not mention the issue of race, he said, it was impossible to conceive that it had any purpose other than to circumvent the protections Congress had ensured for black voters by passing the Fifteenth Amendment. Both argued and decided on the same days as Guinn was United States v. Mosley (1915), a second challenge to Oklahoma’s grandfather clause. Although this case was formally billed as a voting rights case, it was clear that the grandfather

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clause was a major underlying factor. Republican members of the election board in Blaine County, Oklahoma, were charged with not having counted votes in the 1912 election that came from precincts where the grandfather clause was not strictly enforced. The election officials involved were charged with violating the Ku Klux Klan Enforcement Act of 1870, in which Congress had provided protection against attempts to prevent blacks from participating in the political process. Holmes wrote for the Court, saying, “Congress sought to protect all federal rights from conspiracies” (Bickel and Schmidt 1984, 953). Justice Lamar dissented, saying that Congress had not intended the criminal law in question to be used for prosecuting state election officials in federal courts. The third of the Grandfather Clause Cases was Myers v. Anderson (1915), argued a month later than the previous two, but announced at the same time. In this case the Court overturned an ordinance regulating municipal elections in Baltimore, which included a form of the grandfather clause. The voting regulation said that a potential voter did not have to take the literacy test if he or his lineal ancestors would have been qualified to vote in 1866, or had been living in a foreign country at that time. The ordinance also included a $500 property qualification for voting. The attorneys who argued on behalf of the ordinance pointed out that it did not mention race in spelling out the potential restrictions. The U.S. Supreme Court voted unanimously to overturn the ordinance, with McReynolds recusing because of his earlier role as U.S. attorney general. Chief Justice White wrote the opinion for the Court. White said first that the property qualification was constitutional because it could not be interpreted to have any relationship to the protections spelled out in the Fifteenth Amendment. He found the other portions of the ordinance to be clearly designed to interfere with the provisions of the amendment, however, and therefore unconstitutional. The whole ordinance had to be thrown out, however, because to do otherwise might have created a situation in which naturalized citizens could vote, but native born could not, because of inability to meet the property requirement. The decisions in these cases were regarded at the time, and later, as sounding the death knell, once and for all, for this form of discrimination against black voters. In actual fact, most state laws involving some type of grandfather clause had by this time expired, and most southern states had gone on to some other form of administrative sleight of hand to keep blacks from participating in the political process. In practical terms, the decisions had little impact in improving the opportunities for blacks to participate in the political process. As in the political process, so also in the area of segregation. Jim Crow policy had hardened into restrictions widely accepted as the norm by the time Chief Justice White undertook leadership of the Supreme Court. A few questions arose during this decade concerning separation of the races in modes of transportation that served the

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public, but the Supreme Court generally upheld the status quo. Two cases provide examples of the debates that occurred during the period. In 1913 the Court heard a case in which a plaintiff attempted to resurrect a portion of the Civil Rights Act of 1875, which had to all intents and purposes been overturned by the U.S. Supreme Court in the Civil Rights Cases of 1883. The question was, did the rejection of the portion of that law that prohibited states from allowing discrimination in facilities that served the public make impossible the application of that provision to transportation facilities that operated on the high seas? In an unusual case involving travel in intercoastal transportation, a black woman named Mary F. Butts traveling on a coastal vessel between Boston and Norfolk was forced to take a secondclass cabin and eat with second-class passengers, even though she had bought a firstclass ticket. She filed a lawsuit charging that such treatment violated the provisions against discrimination in the federal Civil Rights Act of 1875. Justice Van Devanter wrote the decision of the Court in Butts v. Merchants and Miners Transportation Company (1913). He noted that the major provisions of the Civil Rights Act of 1875, as they applied to the states, had been declared unconstitutional by the Court in the Civil Rights Cases (1883). The question now before the Court was whether, once the main portions of the bill had been declared unconstitutional, some minor provisions could be held still to be prevailing. Van Devanter concluded that they could not, saying that restrictions that had been held not to apply to the major portion of the country could not be applied in this minor instance. The first case dealing with state transportation laws to come before the White Court was a test of the Oklahoma Separate Coach Law. Although bringing to mind the provisions of the Court’s decision in Plessy v. Ferguson (1896), the case presented a much more complicated question. The law provided that separate coach facilities on train lines must be provided for blacks and whites, but the provision did not apply to sleeping, dining, or parlor cars. When these were included in a train, they could be used by members of either race, but not by members of both races simultaneously. The state’s argument was that it was not cost effective to provide duplicates of all the specialty cars for the exclusive use of blacks. They were, therefore, deprived of access to these facilities when, as was most often the case, they were being used by white passengers. Plaintiffs who challenged the law in court did not attack segregation policy directly, but argued only that facilities in such situations ought to be made truly equal—equally accessible to those of both races. Justice Charles Evans Hughes wrote the opinion for a slim majority in McCabe v. Atchison, Topeka, and Santa Fe Railway Company (1914). The decision was divided into two parts. In the first, Hughes ruled that the law was unconstitutional because it did not treat the two groups equally. The degree of use the facilities might attract, and thus the cost effectiveness of providing them, did not enter into it: “It makes the constitutional right depend upon the number of persons who may be discriminated

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against, whereas the essence of the constitutional right is that it is a personal one; [when] facilities are provided, substantial equality of treatment of persons traveling under like conditions cannot be refused” (McCabe, 160). In the second portion of the opinion, however, Hughes affirmed the ruling of the lower court that the plaintiffs were not entitled to relief because they lacked standing to sue. They had filed the suit several days before the law actually went into effect, and thus had not been directly affected by it themselves. White, Holmes, Lamar, and McReynolds concurred, but only in affirming the lower court’s opinion. This opinion is seen by some as a sign of the position that would be taken by the Court under Hughes’s leadership in the 1930s, when it began to put emphasis on the “equal” portion of “separate but equal” (Bickel and Schmidt 1984, 782–783). Perhaps the most complicated of the transportation cases to reach the White Court was that having to do with a streetcar whose route spanned the Ohio River between Cincinnati, Ohio, and Covington, Kentucky. Ohio law banned racial separation in public transportation. Kentucky law required separate cars for blacks and whites. When Kentucky filed suit against the railway for not segregating, the railway company complained not only that the requirement was impractical but that the State of Kentucky was interfering with interstate commerce by making such a request. The Court’s consideration of the case was further complicated by the fact that in a case dealing with the same railway company five years before, the Court had issued a ruling on the interstate commerce question. In South Covington and Cincinnati Street Railway Co. v. City of Covington (1915), the railway had protested being required to abide by ordinances passed by the town of Covington, Kentucky. At that time the Court had ruled that the railway did, in fact, operate in interstate commerce and should not be subjected to local ordinances. In the 1920 case, the Court took a different stance. Writing for the Court in South Covington and Cincinnati Street Railway Co. v. Kentucky (1920), Justice McKenna ruled that in this case the streetcar company was chartered by, and operated primarily in, Kentucky, and the interstate commerce aspect of the business should not be allowed to dominate its regulation. Therefore, the company had to abide by Kentucky’s Jim Crow regulation. He concluded that the policy affecting travelers on the Kentucky side of the river did not place an unreasonable burden on interstate commerce. His main emphasis in the opinion focused on maintaining state sovereignty. Justice Day, who had written the earlier South Covington decision, and Justices Van Devanter and Pitney dissented. Regarded by some as the most important civil rights decision written by the White Court was Buchanan v. Warley (1917). This case originated in Louisville, Kentucky, as a result of an ordinance passed in 1914 that prohibited blacks from living in a block occupied primarily by whites, and vice versa. The case was a test suit created by two individuals, with the assistance of the NAACP. William Warley, a black man,

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arranged to buy a lot from Charles H. Buchanan, a white man, in a neighborhood occupied mostly by whites. Warley stated in the purchase contract that he was buying the property with the intention of building a house on it. He subsequently withheld part of the purchase price, noting that the ordinance prevented him from carrying out his plans. Buchanan then sued Warley for failing to live up to his part of the agreement. The lower court agreed with Warley and upheld the ordinance. As had been intended by the parties involved, the case went on appeal to the U.S. Supreme Court, where it was argued in 1916, and reargued in April 1917. Spearheading the suit was the NAACP, which said that the purpose of the ordinance was to degrade and stigmatize blacks. It was also an infringement on property rights. Attorneys arguing against the ordinance attacked it not just on the basis of segregation but on the grounds that it interfered with the full enjoyment of property rights. Attorneys for the city of Louisville defended the ordinance as based on the principles of Jim Crow policies of segregation. Justice William R. Day wrote the decision for a unanimous Court. He focused his argument on the points that attorneys for Warley had made, the protection of property rights under the Fourteenth Amendment. He said that the core purpose of the amendment was “to extend federal protection to the recently emancipated race from unfriendly and discriminating legislation by the states” (Buchanan, 76). He said that states could exercise some discretion under the police powers to protect the welfare of individuals, but these powers could not be interpreted to permit interference with property rights. Although Day did not focus squarely on the discriminatory Jim Crow aspects of the ordinance, legal scholars and others at the time acknowledged the opinion’s importance as being the first instance in which the Court had established a limit on the uses of such policies, and had done so with one voice. Even though it was not a precedent that would prevail immediately, it gave hope to those who were engaged in the longterm battle for civil rights.

War and the Constitution The outbreak of war in Europe in 1914 held the potential to create a variety of problems for the government of the United States, many of which raised legal and constitutional questions. Although President Woodrow Wilson declared officially that the United States intended to remain neutral, its continued involvement in trade and shipping between the United States and European countries inevitably gave rise to a number of questions under admiralty and maritime law that the U.S. Supreme Court was obliged to resolve. Once the Congress had approved a declaration of war against Germany on April 6, 1917, a whole list of constitutional questions arose as the country

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mobilized in support of the war effort. These encompassed the constitutionality of the draft, the expansion of presidential power to maximize efficient use of the country’s resources in support of the war effort, federal takeover of systems of transportation and communication, and government regulation of many other aspects of the economy. Predictably, concerns about the expansion of federal power, even temporarily, gave rise to constitutional questions that frequently reached the U.S. Supreme Court for resolution. Although the White Court came down firmly in support of the government’s efforts to prosecute the war successfully, it also was willing, when the occasion warranted, to rule against some of the government’s actions. Perhaps the most contentious wartime questions that the Court had to deal with were those concerning civil liberties issues. Those are dealt with elsewhere in this chapter. The sudden outbreak of war in August 1914 created a variety of frustrating problems for captains of merchant ships on the high seas, as well as for the companies that owned them. Ultimately, legal controversies over the disposition of ships and cargoes raised complex questions that were not easy to iron out. Two such cases involved ships belonging to belligerents that ended up in U.S. ports, and a third concerned an American ship that was denied permission to sail. The U.S. Supreme Court was asked in all three cases to resolve questions made more complicated by the existence of war. The first case, the Kronprinzessin Cecilie (1917), concerned a German ship that was on the high seas bound for Europe, carrying a cargo of gold and about 1,900 passengers when its master heard, on the night of July 28, 1914, that Austria had declared war on Serbia and that Germany was preparing for war. Concerned that his efforts to reach his homeport in Germany would be thwarted by capture by the British, the master turned around and put into port in Maine. He returned the gold in his cargo to its owners, but they nevertheless filed suit for damages because he had failed to complete the terms of their agreement by delivering the gold to its intended recipients in Germany. Although the controversy was brought about by the onset of war, the issue that concerned the U.S. Supreme Court had to do with issues of contract law. Justice Oliver Wendell Holmes Jr., writing for the majority, found for the ship captain. He wrote that the ship’s master had “acted as a prudent man,” and was not obligated by the terms of the contract to wait for the formal outbreak of war involving Germany before he made the decision to turn back. He further said, “the master is not to be put in the wrong by nice calculations that if all went well he might have delivered the gold and escaped capture by the margin of a few hours” (Kronprinzessin Cecilie, 24). The Court was willing to take into consideration the unusual circumstances of the situation in evaluating the shipmaster’s obligations. The second case involving transoceanic commerce also dealt with the failure of a shipping company to complete the terms of its contract. A vessel belonging to an American company had been engaged to transport a cargo of oil in the fall of 1917. It

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began its journey, but had to return to port because of a leak caused by a storm. The ship was repaired successfully in New York, but its captain then found that he was barred from leaving port because of an order issued by the U.S. government out of concern for the threat posed by German submarines. The shippers had to find a different ship to carry the cargo. They subsequently sued the owner of the original ship to recover freight charges they had already paid, even though the contract said these were not refundable. In its decision in Allanwilde Transport Corporation v. Vacuum Oil Company (1919), the U.S. Supreme Court found in favor of the ship’s owner. In his decision for the Court, Justice McKenna focused only on the terms of the contract. It had been negotiated and signed in good faith, he said, and neither party could have foreseen the circumstances that subsequently unfolded. They rejected the plaintiff’s argument that the government’s eventual ban on the departure of such ships might have been predicted. The terms of the contract were binding. A third war-related admiralty case the Court heard revolved around issues of neutrality. When war broke out in Europe in 1914, President Woodrow Wilson announced that the United States would remain neutral, and it did so until Congress voted to declare war on Germany on April 6, 1917. During that period the United States was careful to abide by the guidelines for neutral nations spelled out in international law. The origins of a case called Berg v. British and African Steam Navigation Co. (1917) lay in the events surrounding the capture, on January 15, 1916, of the British steamship Appam by a German cruiser and the decision that it should be brought into the U.S. port at Hampton Roads, Virginia, rather than attempting to run the British blockade of German ports. The German government claimed it could do so because of a treaty signed between Prussia and the United States in 1799. Germany announced that it intended to keep the captured ship in the U.S. port for an indefinite period of time. The British owners of the ship sued in U.S. courts for its release. The U.S. Supreme Court heard this case in January 1917 and handed down its decision on March 6, 1917. Justice Day wrote the opinion for the Court. He first rejected the applicability of the Prussian-American Treaty of 1799, agreeing with the secretary of state that this applied only to ships brought in the company of warships. The main thrust of the opinion dealt with the violation of the rights and obligations of neutral nations under international law. He pointed out that those guidelines allowed neutral ports to be used as harbors for captured ships only when they were judged unseaworthy or were desperate for supplies. Such was not the case with the Appam. Because the guidelines of neutrality had been violated, Day said, the U.S. Admiralty Court was correct in assuming jurisdiction and agreed with the judgment that the British owners of the ship were entitled to restoration of their property. If the rules were interpreted differently, Day said, “our ports might be filled, in case of a general war such as is now in progress between the European countries, with captured prizes

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of one or the other of the belligerents, in utter violation of the principles of neutral obligation which have controlled this country from the beginning” (Berg, 156). Once the U.S. Congress voted to declare war on Germany in April 1917, it immediately began to enact and put into operation laws that would enable the federal government to pursue its war effort successfully. Predictably, in a country whose citizens were not unanimously supportive of the war effort, debates began to arise about the extent of the war powers that could be exercised by the federal government. Those who were concerned that the federal government was overstepping its bounds under the Constitution frequently filed suits challenging some of the actions they found most questionable. One of the most interesting, and potentially serious, challenges to the exercise of government authority in wartime was that questioning the constitutionality of the draft. In order to expedite the raising of troops for the war effort, Congress passed, on May 18, 1917, a selective service law establishing a wartime military draft. This was quickly challenged in a series of cases instigated by activists opposed to U.S. involvement in the war in Europe. Because of the questions of constitutionality raised, the courts expedited the cases, and the U.S. Supreme Court grouped six of them together under a single opinion, collectively called the Selective Draft Law Cases (1918). Arguments were presented in December 1917, and the Court handed down its opinion on January 7, 1918. Attorneys for the defendants made a series of interesting arguments in their challenge to the draft. They contended first, that Article I, Section 8, of the Constitution allowed Congress to raise troops only for domestic use, not to be committed in combat abroad. They further claimed that the Constitution intended that the military should be a voluntary force and that the draft constituted a violation of the Thirteenth Amendment ban on involuntary servitude, as well as of the First Amendment’s religion clause. In his unanimous opinion for the Court, Chief Justice Edward Douglass White made short work of these claims. Even though the Constitution does not specifically mention a draft, he said, the fact that it gives Congress power to “provide for the common defense,” to “raise and support armies,” “to provide and maintain a navy,” and “to declare war,” makes it clear that Congress must be able to employ whatever power necessary to provide manpower for the military. He also argued that citizenship brings with it obligations, including “the supreme and noble duty of contributing to the defense of the rights and honor of the nation” (Selective, 390). White also affirmed the authority of the Congress to use the troops wherever they were needed, including overseas. In practical terms, it was unthinkable that the Court would rule against the constitutionality of the draft. Not only was it a necessity during wartime, especially when a significant number of troops were needed quickly, but its supporters argued as well

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that it was the fairest and most democratic means of selecting citizens to perform this obligation. The ability of the United States to honor its own obligations, to come to the aid of allies, and to maintain the respect due it as a sovereign nation made it essential that Congress be able to raise a military force efficiently and expeditiously. The U.S. Supreme Court was, in general, supportive of the exercise of federal power in carrying out the war effort through the mobilization of armed forces. This was true even in cases that dealt with some of the minutiae of supervising the wellbeing of the troops. For example, the Court upheld the power of the secretary of war, under the Selective Service Act of May 17, 1917, to regulate the placement of houses of prostitution near military bases. A man named Jacob McKinley set up a house of prostitution that was in violation of the 5-mile distance that had been set by the secretary of war. In a memorandum opinion in McKinley v. United States (1919), Justice William R. Day wrote, “That Congress has the authority to raise and support armies and to make rules and regulations for the protection of the health and welfare of those composing them, is too well settled to require more than the statement of the proposition” (McKinley, 399). Day’s opinion cited the arguments Chief Justice White had made in the Selective Draft Law Cases as he concluded that the secretary had the power to establish in such cases any distance he deemed necessary. The war powers of the federal government were also considered by the Court in a series of entangled cases challenging various elements of the laws passed to accomplish implementation of the new Eighteenth Amendment, establishing prohibition. Initially, restrictions on the manufacture and sale of alcoholic beverages had been written into the Selective Service Act, forbidding the sale of liquor to servicemen, and the Lever Act, which restricted the use of foodstuffs in the production of alcoholic beverages. On November 21, 1918, after the war had actually ended, Congress passed the Wartime Prohibition Act, prohibiting the manufacture and sale of certain types of alcoholic beverages until the president issued a proclamation announcing that demobilization had ended. A number of cases, some dealing with the use of government war power in this area after the war was over and others challenging various aspects of the Wartime Prohibition Act and the Volstead Act, gave the Court the opportunity to expound on the extent of congressional war powers. The first two cases, collectively entitled Hamilton v. Kentucky Distilleries (1919), actually concerned the government’s holding stocks of their product in government warehouses. The distilleries wanted it released so that they could sell it before Prohibition took effect in January 1920. The third case, Rupert v. Caffey (1920), questioned the establishment of 0.5 percent alcohol by volume as a guideline for determining whether a beverage was intoxicating. Although these were primarily business cases, the justices used them to define the concept of war powers more thoroughly. In his decision for a unanimous Court in Hamilton, Justice Brandeis first disposed of the contention that the restriction on release of the alcoholic beverages held

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by the government did not represent a taking without compensation, since the Prohibition laws did provide conditions under which the liquor could be sold. More to the point, where war powers were concerned, Brandeis supported Congress’s argument that it could exercise war powers during the period of demobilization and could spell out the circumstances under which demobilization would be deemed to be complete. He said Congress must be allowed considerable discretion in the exercise of war powers, and that, in essence, it would be up to the Court to say when the war powers no longer applied, although they would expect a solid argument to warrant such a decision. Rupert v. Caffey (1920) was also argued on November 20 and 21, 1919, but the decision was not announced until January 5, 1920. Justice Brandeis also wrote for the Court in this case, but only four other members of the Court supported his opinion. Compiling within his opinion supporting data that amounted to a Brandeis brief, the justice argued first, that experiences at the state level had proven that it was almost impossible to regulate the manufacture and sale of alcoholic beverages without setting some kind of limit on the amount of alcohol the beverages might contain. He said further that the power of Congress to regulate the sale of alcoholic beverages, upheld unanimously in the Hamilton case, implied the power to establish such guidelines. Justice Clarke dissented alone, without opinion. Justice McReynolds produced a written dissent, in which he was joined by Day and Van Devanter. McReynolds argued that Brandeis’s interpretation of the implied powers that could be exercised by Congress was entirely too broad. He further objected to Brandeis’s contention that Congress could justify such action as responding to the wartime emergency. Among the powers Congress granted to the president during the war was control of the railroads and of various means of communication. Difficulty in coordinating the mobilization of troops and supplies made it essential that the railroads be able to operate as a unified system. Congress passed the resolution authorizing takeover of the railroads in the summer of 1916, the president invoked the authority in a proclamation issued December 26, 1917, and Congress then ratified his action in a bill passed March 21, 1918. Wilson appointed Secretary of the Treasury William Gibbs McAdoo as director general for the operation of the railroads. The enabling legislation allowed the administration to set rates for the railroads and made it clear that, although the Interstate Commerce Commission’s power to regulate the railroads was not being abrogated, the ICC should take into consideration the use of the president’s war powers when evaluating complaints about the operation of the railroads under the new guidelines. What Congress did not address to the satisfaction of some was the extent to which the executive branch could control the intrastate railroad lines. State railroad commissions attempted to continue exercising their regulatory powers and filed suit when their efforts were thwarted. The case in which the Court responded to this chal-

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lenge was Northern Pacific Railway v. North Dakota (1919). The North Dakota Utilities Commission had filed suit against the director general of the railroads and the Northern Pacific Railway Company to enjoin them from interfering with intrastate railroad rates. The North Dakota state courts sided with the state, and, when the case went on appeal to the U.S. Supreme Court, thirty-seven states filed amicus briefs, as did the National Association of Railway and Utility Commissions. The U.S. Supreme Court, in an opinion by Chief Justice White, made short work of the objections. White said the executive was operating under the federal war power, not the commerce power, and he emphasized the “complete and undivided character of the war power of the U.S.” (Northern Pacific, 149). White further stated that the peacetime distinction between intrastate and interstate regulation of the railroads had been temporarily eliminated. They were all operating as a unified system. A similar extension of federal power to control the country’s telephone, telegraph, marine cable, and radio systems was authorized by joint resolution of Congress on July 16, 1918. The president took control by proclamation on July 22, 1918, authorizing Postmaster General Albert Burleson to exercise this power. As it had done in the railroad cases, the U.S. Supreme Court upheld this grant of power to the executive. In Dakota Central Telephone Company v. South Dakota (1919), the Court approved this use of federal war power. Although the opinion in the railroad case was unanimous, this one found Brandeis in dissent. Although it is not entirely clear what his reasons were, Brandeis apparently objected to the grant of power because the Congress in its resolution did not give the executive a specific grant of authority to set rates for the communications networks. The Congress broke new ground with its passage of a law giving the president broad power to control the allocation and use of various kinds of supplies needed to support the war effort. The Lever Food and Fuel Control Act of 1917 gave the executive branch power to requisition various kinds of supplies needed for the war effort and to punish price gouging in the sale of such items. Implementation of this act was delegated to the Food Administration, headed by Herbert Hoover. The law was to remain in force until the signing of a peace treaty. Because of the importance of the constitutional questions associated with the Lever Act, and because the law remained in force even after the cessation of hostilities, the Supreme Court agreed to hear cases filed to challenge the latter part of the act. The resulting decisions indicated that, in spite of its strong support for expanded federal power during wartime, the Court was not prepared to approve every action Congress took in this regard without question. The case in which the Court laid out its opinion was United States v. L. Cohen Grocery Company (1921). Cohen Grocery was charged with having willingly sold bags of sugar for excessive prices. The trial court said, and the U.S. Supreme Court agreed, that the guidelines set out by Congress in the Lever Act were so vague that it was next

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to impossible for the average person to determine whether he might be acting in violation of it. Chief Justice White wrote the opinion for the Court. He did not reject the idea that Congress could establish price controls in wartime, but made it clear that any such legislation should be carefully and clearly drafted. He pointed out, in support of the Court’s argument that the law’s provisions were inadequate, the varying standards that had been derived by judges in the lower courts as they attempted to determine what Congress had intended. Pitney, joined by Brandeis, concurred, but said that the statute should be interpreted only to apply to the establishment of prices for services and conspiracies to set prices. The Court had no such problems with either federal or state rent control legislation it was asked to review. The federal law, passed in October 1919, set rent control guidelines for property in the District of Columbia, where housing had been at a premium during the war. The law allowed a leaseholder to continue to occupy housing at the same rate after a lease had expired. The landlord could ask the leaseholder to vacate only if the landlord himself or members of his family intended to move in. The case Block v. Hirsch (1921) tested the constitutionality of the regulation. Hirsh, a landlord, attempted to evict Block, a tenant, stating that he wished to occupy the residence himself. In order to create grounds for the test case, he deliberately refused to give the thirty days’ notice that the law required. Hirsh’s contention that the law was unconstitutional was upheld in the Court of Appeals for the District of Columbia, but the U.S. Supreme Court, in an opinion written by Justice Holmes, reversed the lower court’s decision. Holmes argued that Congress was merely taking a kind of action that was widely used throughout the world. The issue in question, affordable rents, was clothed with a public interest and therefore eligible to regulation by Congress. Further, this was a temporary measure designed to meet a specific need in a specific period of time. Justice McKenna wrote a dissent, in which he was joined by Chief Justice White and Associate Justices Van Devanter and McReynolds. The basic premise of their objection was that they did not believe the Constitution authorized Congress to pass such regulations, even in wartime. They interfered with a property owner’s right to establish and secure what he considered a fair rate of return on his property, as well as to decide to whom and under what circumstances he would rent. A similar disagreement between Holmes and McKenna was evident in decisions produced in the decision for a case challenging a state rent control law. Marcus Brown Co. v. Feldman (1921) concerned a law from the State of New York, citing the previous decision as precedent. In his opinion for the Court, Holmes summarily upheld the law. Dissenting, Justice McKenna again objected to the use of the Constitution to justify such legislation, contending that it was “safer, saner, and more consonant with constitutional preeminence and its purposes to regard the declaration of the constitution as paramount, and not to weaken it by refined dialectics, or bend it to some

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impulse or emergency because of some accident of immediate overwhelming interest which appeals to the feeling, and distorts the judgment” (Marcus Brown, 200–201).

Civil Liberties The era of the White Court marked a major turning point in the interpretation of key elements of the federal Bill of Rights. Although there had been a few cases in which the Court had dealt with First Amendment issues, such as Patterson v. Colorado (1907), the Court had thus far not delineated its views of the meaning and reach of such key topics as freedom of speech. Both before and after the United States declared war on Germany in April 1917, individuals and groups chose various ways to voice criticism of U.S. policy. The impetus for a series of rulings dealing with civil liberties was the passage by both Congress and the state legislatures during World War I of a series of laws punishing interference with the war effort or other activities deemed threatening to the security of the U.S. government. Three major pieces of congressional legislation provided the focus for concerns about federal violation of civil liberties. The Selective Service Act passed on May 18, 1917, was designed primarily to institute a wartime draft, but also contained a provision authorizing arrest and imprisonment of people who interfered with the draft. The Espionage Act, which was passed on June 15, 1917, punished both interference with the military and obstruction of the draft. It also allowed the postmaster general to ban from the mails any publications deemed dangerous, particularly those in foreign languages. The Sedition Act, actually an amendment to the Espionage Act, took effect on May 16, 1918. It was designed to crack down on activities by radical groups, and punished, among other things, criticism of the government or the war effort. Although the Court had upheld the constitutionality of the Selective Service Act in the Selective Draft Law Cases (1918), the first major civil liberties decision handed down by the White Court came as a result of a challenge to the constitutionality of the Espionage Act. The case was brought by Charles Schenck, general secretary for the Socialist Party, who had supervised the publication and circulation to draft-age men of several thousand pamphlets urging their readers not to cooperate with the draft. Schenck was arrested, charged with, and convicted of violating the Espionage Act. He appealed to the U.S. Supreme Court, arguing that the law was a violation of First Amendment guarantees for freedom of speech. Government attorneys responded that the law was constitutional as a part of the Congress’s draft policy, which had been approved earlier by the Court in the Selective Draft Law Cases.. The Supreme Court heard arguments in the case on January 9–10, 1919, and handed down its opinion two months later, on March 3, 1919. Justice Oliver Wendell Holmes Jr. wrote for a unanimous Court, upholding Schenck’s conviction. He took the

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position that freedom of speech was not absolute, but could be restricted under certain circumstances. He said one did not have to act in order to violate the law. The Court must consider both the context and the content of the speech in question. In illustrating his point, Holmes laid out his famous “clear and present danger” doctrine: The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. . . . The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. . . . When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right. (Schenck, 52)

A week later Holmes seemed to modify his stand slightly when he again wrote for a unanimous Court in two other Espionage Act cases, Frohwerk v. United States (1919), and Debs v. United States (1919). The Frohwerk case involved the publication in a German-language newspaper in Philadelphia of articles critical of the U.S. war effort and urging resistance to the draft. The other case challenged the conviction of Eugene V. Debs, a three-time candidate for president on the Socialist ticket, and an outspoken critic of U.S. involvement in World War I. Debs had made a speech in Canton, Ohio, on June 16, 1918, in which he criticized the war effort and defended others who had spoken out against it. He later told the jury hearing his case that he fully realized the likelihood of arrest and conviction when he spoke. Holmes’s opinions upheld the convictions in both these cases. In neither instance did Holmes place quite as much emphasis on the need for restriction of freedom of speech in wartime as he had in Schenck. Rather, he seemed to pay more attention to the context in which the published or spoken material had been disseminated. Generally viewed as at least as important in framing the debate over freedom of speech and press as his majority opinion in Schenck is Holmes’s dissent in Abrams v. United States (1919). The Sedition Act was passed in 1918, including provisions for the punishment of anyone who attempted to “incite mutiny or insubordination in the ranks of the armed forces,” who attempted to “disrupt or discourage recruiting or enlistment service, or utter, print, or publish disloyal, profane, scurrilous, or abusive language about the form of government, the constitution, soldiers, sailors, flag or uniform of the armed forces, or by word or act support or favor the cause of the German Empire or its allies in the present war, or by word or act oppose the cause of the United States” (Urofsky and Finkelstein 2001, 513). A Russian Jewish immigrant named Abrams who published and disseminated on the lower east side of New York City leaflets in English and Yiddish criticizing the U.S. decision to send troops to Russia to help put down the

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Bolshevik revolution, and calling for a general strike, was arrested and convicted under the Sedition Act. At his trial the prosecution argued that his pamphlets might have the effect of interfering with the war against Germany by causing uprisings and affecting morale of troops in the field. The conviction went on appeal to the U.S. Supreme Court. Justice John H. Clarke wrote for a seven-man majority in upholding Abrams’s conviction. He supported the conclusion of the trial court by applying to the case Holmes’s “clear and present danger” doctrine. He said the First Amendment could not be interpreted to support Abrams’s action. Justices Holmes and Brandeis dissented. Holmes narrowed his definition of the circumstances under which wartime conditions warranted restriction on freedom of speech and press. This is regarded by some as the first attempt to apply the clear and present danger doctrine in a realistic way. Nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so. . . . We should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. (Abrams, 628)

Holmes also emphasized the importance of protecting what he called the free trade in ideas: But when men have realized that time has come to upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market and that truth is the only ground upon which their wishes can safely be carried out. That at any rate is the theory of our constitution. It is an experiment, as all life is an experiment. (Abrams, 630)

An attempt by Justice Pitney to further define the types of expressions that should be denied protection under the First Amendment prompted another spirited dissent from Justices Holmes and Brandeis in Pierce v. United States (1925). This case, similar to several previous cases, involved the distribution by three Socialists of a pamphlet strongly critical of the war effort. Pierce was convicted under the Espionage Act, even though the government’s case demonstrated no direct effect of the pamphlet on the war effort. The majority, for which Pitney wrote, upheld the men’s

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convictions. Where Pitney’s opinion was unusual, however, was in his effort to analyze the contents of the pamphlet and point out the errors and false assumptions in the thinking of the authors. The effect was to use the bad tendency doctrine to deem the men worthy of punishment because of their faulty thinking. Brandeis was incensed. He argued not only that the government had failed to prove the pamphlet constituted any threat to the war effort but also that it was wrong to conclude that the men were worthy of punishment because “the argument presented seems to those exercising judicial power to be unfair in its portrayal of existing evils, mistaken in its assumptions, unsound in reasoning, or intemperate in language” (Pierce, 273). The portion of the Espionage Act that permitted the federal government to deny access to the mails of any controversial or dangerous publications was the issue in United States ex rel. Milwaukee Socialist Democratic Publishing Co. v. Burleson (1921). The law gave the postmaster general, during World War I, the power to exclude from the mails publications he deemed might interfere with the war effort. Postmaster General Albert Burleson used this authority to ban from the mails a variety of publications, including, at various times, issues of the New York Times and the Saturday Evening Post. He had also banned the Milwaukee Leader, a Socialist paper published by Victor Berger, which published false reports he feared might interfere with recruiting and other aspects of the war effort. The owners of the publishing company were prosecuted and convicted under the Espionage Act. They challenged the conviction on the grounds that this use of the Espionage Act was a violation of the First Amendment guarantee of freedom of the press. The U.S. Supreme Court responded to the case with a split similar to that which had greeted other espionage cases. Justice John H. Clarke, writing for the majority, upheld the conviction. He said that the First Amendment was not intended to be used as a “protecting screen” for those who wanted to criticize the government. Brandeis, joined by Holmes, again produced a dissent in which he argued that the law was being unwisely used to restrict civil liberties. He argued not only that the ban was unjustified because it violated freedom of the press but also that Congress had intended the use of the ban to be limited only to those materials that actually were a problem, not to all issues of a particular publication. One final war-related civil liberties case heard by the White Court dealt with a state, rather than federal, sedition act. Minnesota, as did many of the states, had passed during the war its own sedition act, aimed at punishing criticism of both state and federal government during wartime. Gilbert v. Minnesota (1920) involved the appeal of a conviction of a prominent Nonpartisan League leader named Gilbert who had been convicted under the Minnesota law for making a speech critical of the federal government and its war effort. The question for the Court here concerned not only the possible violation of freedom of speech but also whether the state could legislate against seditious acts aimed at the federal government. Justice William McKenna, writing for

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the majority, upheld the conviction and ruled that the state could, in fact, legislate in this area. Justice Brandeis again dissented, this time joined by Chief Justice White. Brandeis objected to the Minnesota law, both because he believed it intervened in an area preempted for federal action (the only point of the dissent with which White actually agreed) and because he found this law to be particularly dangerous because it punished speech in peacetime as well as during a war. A particularly interesting feature of Brandeis’s dissent, in light of future developments, was his statement that he believed that the protection of liberty guaranteed by the Fourteenth Amendment could be interpreted to mean that the federal Bill of Rights should apply to the states as well as to the federal government. McKenna’s majority opinion did not address this issue. Although the White Court did not focus on the protections granted individuals under the Bill of Rights as later courts would, it did create one major precedent that has been relied on continuously since its inception. This is the exclusionary rule, expounded by Justice William R. Day in Weeks v. United States (1914). This case involved the conviction of a man named Weeks for using the mail to transport lottery tickets. The question at issue, however, was the means by which the evidence against him had been secured. Weeks argued on appeal that the collection of evidence during a warrantless search violated his right to privacy and other protections found in the Fourth and Fifth Amendments. Justice Day, writing for a unanimous Court, agreed. Relying on the Fourth Amendment requirements for search warrants, he established a guideline that would eventually prevail at both the federal and state levels, although several decades would pass before its application became complete. Near the end of White’s term of leadership, Justice Oliver Wendell Holmes Jr. took the opportunity to expand the Court’s position on the exclusionary rule. Silverthorne Lumber Company v. United States (1920) involved the conviction of three men on federal charges. Although the men were in custody, having been indicted by a grand jury, federal officials entered their offices without a warrant and took books, papers, and other materials to be used in the trial against them. Justice Holmes wrote the majority opinion for a 7–2 Court. Incensed at this violation of the men’s Fourth Amendment rights, Holmes ruled that the material so gathered not only could not be used at trial, but “shall not be used at all” (Silverthorne, 392). The Court was, however, willing to allow some leeway in the evaluation of evidence once it had been legally obtained. In Ex parte Peterson (1920), the defendant asserted that his right to trial by jury had been violated because the court had hired an auditor to sift through the complex facts and documents involved in the trial and to prepare a report for the court. The defendant contended that it was the job of the jury alone to sort the facts and reach a conclusion. The U.S. Supreme Court, hearing the case on appeal, allowed the use of an auditor.

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The White Court’s record in the area of civil liberties was, on the whole, quite modest. It struggled to balance First Amendment rights with the need of the government for security and protection during wartime. Most of the justices were consistently on the side of greater protection for the government, with Holmes and Brandeis gradually finding their voices to speak out, albeit in dissent, in favor of the protection of civil liberties. A few cases gave the Court the opportunity to speak out on issues related to the rights of the accused. In a few instances we also see hints in the thinking of the more liberal justices that presage the nationalization of the Bill of Rights, a trend that would not gain impetus until some years later.

Questions of Federal Power In addition to its numerous regulations of the use of power by the various branches of the federal government, the White Court during its ten years issued a variety of opinions in which it clarified federal powers under specific provisions of the Constitution. These opinions came in cases dealing with a wide variety of topics, from the settlement of disputes over treaty provisions and the effort to govern newly acquired territories, to the increasing use of the doctrine of administrative discretion to establish specialized commissions to deal with complicated issues. They also considered questions related to the disposition of the public domain and the regulation of navigable waterways. The wide range of topics covered in such cases challenged the expertise of the justices both in understanding and answering such complicated questions and in interpreting the Constitution to provide solutions to the problems from which they arose. An early case having to do with international agreements required the Court to decide when such an agreement was, in fact, a treaty. The agreement in question had been concluded in 1897 between the United States and France and involved, among other things, a tariff on imported statuary. The important issue that arose in a case dealing with the trade agreement had to do with the authority of the U.S. Supreme Court to rule in the case. In 1891, in an attempt to streamline the work of the federal judiciary, Congress had passed a law creating courts of appeals, whose opinions in certain types of cases were final. An exception had to do with controversies surrounding treaties. These, because of their importance, could be appealed to the U.S. Supreme Court. The case B. Altman Co. v. United States (1912) raised the question of what actually constituted a treaty. The agreement that had been reached between the United States and France in 1897 was termed a reciprocal trade agreement and had not required ratification by the Senate. Justice William R. Day, in writing for the Court, argued that the statute was not intended to prevent Supreme Court review of matters of this kind:

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We think that the purpose of Congress was manifestly to permit rights and obligations of that character to be passed upon in the Federal court of final resort, and that matters of such vital importance, arising out of opposing constructions of international compacts, sometimes involving the peace of nations, should be subject to direct and prompt review by the highest court of the nation. While it may be true that this commercial agreement, made under authority of the tariff act of 1897, was not a treaty possessing the dignity of one requiring ratification by the Senate of the United States, it was an international compact, negotiated between the representatives of two sovereign nations, and made in the name and on behalf of the contracting countries, and dealing with important commercial relations between the two countries, and was proclaimed by the President. If not technically a treaty requiring ratification, nevertheless it was a compact authorized by the Congress of the United States, negotiated and proclaimed under the authority of its President. We think such a compact is a treaty under the circuit court of appeals act, and, where its construction is directly involved, as it is here, there is a right of review by direct appeal to this court. (Altman, 593)

Near the end of the era of Chief Justice White’s leadership, the Court heard a treaty-related case that raised questions of constitutional significance. The unlikely subject was the protection of migratory birds. Environmentalists, farmers, and others had prevailed on the government over the years to enact legislation protecting such birds, citing their importance, among other things, as consumers of insects that damaged crops. In 1916 the United States and Great Britain (acting for Canada) concluded a treaty to protect birds migrating between the United States and Canada, by regulating hunting seasons and imposing other restrictions. Congress then passed the Migratory Bird Treaty Act of 1918, implementing the provisions of the treaty within the United States. Concern immediately rose at the state level that such legislation was a violation of the states’ rights to control their own internal affairs. The State of Missouri filed suit in federal court in 1918 to enjoin federal game wardens from enforcing the law within its boundaries. Attorneys for the state contended that the law violated not only state police powers but also guarantees of state sovereignty residing in the provisions of the Tenth Amendment to the U.S. Constitution. The lower courts upheld the act, and the case came on appeal to the U.S. Supreme Court, where it was decided in 1920. The decision for the Court in Missouri v. Holland (1920) was written by Justice Oliver Wendell Holmes Jr. Justices Van Devanter and Pitney dissented without opinion. Justice Holmes affirmed the lower court ruling, citing the Supremacy Clause in Article VI of the Constitution, which says that treaties and federal laws are to be considered the supreme law of the land. He further stated that there was no question of the law’s constitutionality: “The treaty in question does not contravene any prohibitory

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words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that Amendment has reserved” (Missouri, 416). Holmes also rejected the argument that the state police powers should prevail in determination of which governing body should regulate: “But for the treaty and the statute there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed” (Missouri, 431). Some analysts of Holmes’s opinion were struck by his statement that treaties might be used to accomplish what governments had not yet done, or might not do. Was this a potential device, reformers wondered, that could be used to achieve such goals as labor reform? One other case whose issues reached outside the United States proper had to do with the act establishing the government for Puerto Rico after that territory had been acquired by the United States. Congress had passed an organic act establishing the government and conferring upon it, among other things, “power to sue and be sued as such.” Some questioned the meaning of this provision, arguing that to make the government subject to suits would cripple its powers and had the potential to put the resolution of every controversy in the hands of the judiciary. In his opinion in Puerto Rico v. Rosaly y Castillo (1913), Chief Justice White ruled that the words to be sued were redundant, because to take them at face value would be to destroy the sovereign powers of the territorial government. The White Court had the opportunity to issue important rulings, fine-tuning the use by Congress of the doctrine of administrative discretion. First used in the passage of the Interstate Commerce Act of 1887, in which Congress had created a federal commission to regulate the railroad industry, this doctrine had been challenged repeatedly in the courts by businesses that contended that Congress had delegated too much authority to the agencies thus created. Reformers who supported the creation of such regulatory bodies argued that these agencies, staffed by people with a degree of expertise in the business or industry being subjected to regulation, had both the knowledge and experience in the area that members of Congress lacked. It was unrealistic, they said, to expect Congress to be able to craft guidelines and regulations to deal with all the minutiae involved in specialized industries. The first case in this area that the White Court addressed was the result of laws passed in the previous two decades for the regulation of forested portions of the public domain. The Forest Reserve Act of 1891 allowed the president to set such areas aside for conservation purposes. A subsequent law passed in 1905 gave the secretary of agriculture the authority to make and enforce regulations for public use of the reserved lands for purposes such as grazing.

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One Pierre Grimaud was arrested and indicted for grazing sheep in a federal forest preserve in violation of the regulations established by the secretary of agriculture. He challenged the indictment on the grounds that the Congress had unconstitutionally delegated to the secretary of agriculture power to create regulations the violation of which was punishable as a crime. He argued that in so doing, Congress was giving away legislative authority that only it could rightfully exercise. The lower courts sided with Grimaud, vacating his indictment. The case went on appeal to the U.S. Supreme Court. United States v. Grimaud (1911) came originally to the U.S. Supreme Court in 1910, where a divided bench allowed the lower court ruling to stand. Because of changes in Court personnel, however, the case was scheduled for reargument in March 1911, shortly after White took his seat as chief justice. Justice Lamar is generally credited with marshaling the Court in support of a unanimous opinion, which he read in May 1911. The Court came down solidly in support of the doctrine of administrative discretion. Lamar argued, first of all, the Congress was not delegating legislative power, but merely authorizing the secretary of agriculture to fill in the details of regulatory guidelines for which Congress had provided in the original legislation. He contended that it was not practical to expect Congress to incorporate in the law all the details necessary for the law’s adequate enforcement. The decision in Grimaud became an important precedent for the defense of the creation of a wide variety of federal regulatory agencies in subsequent years. Changes in Court personnel, as well as the changing business climate, prompted the Court to take a very different stand regarding the powers of the Federal Trade Commission in a case that reached it shortly before the end of White’s tenure as chief justice. In a decision that was to set the tone for the government’s general hands-off policy toward the regulation of business during the 1920s, Justice McReynolds strictly limited the powers of this agency, which had been established by reformers to curb what they perceived as the excesses of big business. The Federal Trade Commission Act, passed in 1914 with the support of President Woodrow Wilson, created a new federal agency, whose role it would be to crack down on efforts to restrain trade. Its supporters contended that new antitrust legislation could not possibly encompass all the complicated practices that might be devised by the business world, so it made sense to create an agency with expertise in the area that would operate similarly to the Interstate Commerce Commission, hearing complaints, conducting investigations, and issuing cease and desist orders. Predictably, the commission faced strong opposition in the business community, and the case that came before the White Court, Federal Trade Commission v. Gratz (1920), was only the first of a series of challenges aimed at eviscerating the authority of the commission. The Gratz case concerned the issuance by the Federal Trade Commission of a cease and desist order to the Gratz Company for engaging in unfair business practices

Major Decisions

in violation of Section 5 of the Federal Trade Commission Act. The company sold steel baling ties that were used in the baling of cotton. Before being baled, the cotton was packed in cloth bags. The Gratz Company required that its customers, when purchasing baling ties, must also purchase from them the cotton bagging. Since Gratz was the only agent west of the Mississippi River for the company that produced the cotton bags, they achieved a significant advantage by requiring their customers to buy them. The Federal Trade Commission found this requirement to be an unfair business practice and issued a cease and desist order. The Gratz Company promptly challenged the ruling in court. The Court of Appeals vacated the order, and the case went on appeal to the White Court. Justice McReynolds wrote the opinion for a divided Court, in which Justice Pitney concurred without opinion. In a conclusion that reminded some of the early decisions that had severely restricted the authority of the Interstate Commerce Commission some thirty years before, McReynolds upheld the ruling of the Court of Appeals. He said that Gratz’s actions did not constitute unfair business practices under the guidelines for the Federal Trade Commission, since the company did not have a monopolistic hold over the potential customer. The purchaser was free to reject the requirement that he buy the bags and was free to refuse to do business with Gratz altogether. McReynolds’s position was that the courts, not the Federal Trade Commission, would decide what constituted unfair trade practices, since these were not spelled out in the legislation. Justice Brandeis, joined by Justice Clarke, produced a long and passionate dissent. He argued that the Federal Trade Commission’s discretion should be upheld. He chided the court majority for failing to take into consideration the voluminous data that the FTC had compiled, and for rejecting the obvious intent of Congress in creating this agency with specialized expertise in evaluating business practices questioned in the complaints that came before it. The effect of the Court’s opinion in Gratz was to set a precedent that would severely limit the ability of the Federal Trade Commission to do the tasks for which it had been created and to provide for businesses a precedent that they would use repeatedly in cases brought before the Taft Court challenging the commission’s rulings. The White Court had the opportunity during its ten years to make several interesting rulings on federal control and usage of the public domain. These stemmed generally from conservation-related issues that arose as the government tried to implement control of land, mineral rights, and navigable waterways. Cases usually dealt with new variations on issues and policies that had been put in place by the government in the preceding decade as it endeavored to protect the public interest. The first such case to be discussed here dealt with the extent of presidential discretion in controlling the disposition of the public domain. In February 1897 Congress authorized the opening of areas of the public domain containing oil and mineral

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deposits for public purchase and settlement. So many purchasers took advantage of the opportunity that, by 1909, the Department of the Interior was concerned about the depletion of the natural resources that was resulting. Officials in the department recommended to President William Howard Taft that the Act to Authorize the Entry and Patenting of Lands Containing Petroleum and Other Mineral Oils of 1897 be suspended. The president, pending approval by the Congress, ordered the withdrawal from possible purchase of three million acres of the public domain. Congress responded in June 1910 with the passage of a law authorizing future withdrawals, but not specifically ratifying the withdrawal the president had ordered the previous year. A lawsuit questioning the constitutionality of the president’s action made its way to the U.S. Supreme Court in 1914. During the interim between the president’s order and the action by Congress, a man named Henshaw had filed a claim for some of the land in question and had assigned his claim to the Midwest Oil Company. The U.S. government then filed suit to reclaim the land. The oil company’s suit challenged the authority of the president to issue such a proclamation without the approval of Congress. The suit, United States v. Midwest Oil Company (1915), was argued before the Supreme Court in January 1914, then reargued in May 1914 because of changes in Court personnel. Justice Lamar wrote the opinion, issued in February 1915, for the majority. He upheld the president’s action, citing numerous such actions by previous presidents as precedent. He also noted that the proclamation did not interfere with property rights, since it did not affect previous purchases. Justice Day dissented, joined by McKenna and Van Devanter. He pointed out that similar proclamations issued by previous presidents had been the result of more specific circumstances. He also noted that Congress had not ratified President Taft’s action. Although the majority supported President Taft in this case, in the long run the Congress would become more restrictive of the president’s use of proclamations. A second controversy over federal control of the public domain involved the constitutional rights granted to those who were awarded patents. This case, Burke v. Southern Pacific Railway (1914) concerned land granted to a railroad in support of the construction of the road in the late nineteenth century. A law passed by Congress in 1866 awarded to railroad companies alternate sections of land along the path of the railroad, but specifically excluded land that contained valuable mineral rights. In 1892 the Southern Pacific Railway filed claims under this law to land alongside its tracks, which it secretly knew contained oil deposits. The Land Office issued patents for the land to the railroad company, but included in the patents a saving clause that said that, if minerals were discovered in the land, the patent would be voided. Several years later a man named Burke also filed claims for this land, maintaining that the railroad had no right to it because it had obtained the land fraudulently in violation of the saving clause. Justice Van Devanter, the White Court’s acknowledged expert on matters relating to the public domain, wrote the opinion of the Court, ruling in favor of the railroad. He

Major Decisions

said, first, that the patent must be upheld. The saving clause in the patent was void. To say otherwise would continually raise questions about the validity of purchase agreements when new information came to light. It had been the responsibility of the Land Office to determine that there were no mineral deposits before issuing the patent. He also said that the government, if it was concerned about the fraudulent action of the railroad, must sue directly. The Justice Department subsequently did so, and the purchase was invalidated in United States v. Southern Pacific Railway (1919). A third case having to do with government control of natural resources harkened back to decisions in the early nineteenth century that defined federal control over navigable waterways in the interior of the country. The question raised here was the extent to which the government had authority to regulate or ban the use of such waterways for commercial purposes by private companies. The waterway in question was the St. Marys Falls Ship Canal, and the property at issue stretched from the canal northward to the Canadian border. In 1909 Congress passed a law affirming the federal government’s ownership of this property and authorizing the secretary of war to acquire control of it for the government. An obstacle presented itself in damage claims lodged by the Chandler-Dunbar Company, which owned property in the area, operated dams, and sold waterpower generated by the dam to private users. The federal government awarded the Chandler-Dunbar Company more than half a million dollars in compensation for the waterpower it would lose as a result of the government’s takeover of the waterway, but the company contended that it held ownership for portions of the bed of the waterway, as well. The ensuing controversy reached the U.S. Supreme Court in United States v. Chandler-Dunbar Water Power Company (1913), which questioned the extent of federal control over navigable waterways. Writing for the Court, Justice Lurton defined the power broadly: “Ownership of a private stream wholly upon the lands of an individual is conceivable; but that the running water in a great navigable stream is capable of private ownership is inconceivable” (69). He said the federal government controlled all aspects of the navigable stream and was not required to compensate the Chandler-Dunbar Company for its losses. The company should be compensated only for the land it owned, under the eminent domain guarantees of the Constitution.

State Powers The U.S. Supreme Court under Chief Justice Edward Douglass White considered many cases dealing specifically with the powers of the state government. Although the possibility of the diminution of state powers through the ruling of the federal judiciary had been of significant concern to those who opposed the ratification of the U.S. Constitution, and had been the source of some contentious confrontations between state and

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federal leaders in the early nineteenth century, the federal courts had, on the whole, been careful to respect the division of powers between the state and federal entities. Although the White Court saw fit to challenge state laws and actions in more than one hundred cases, in those suits that concerned the extent of state power under the Constitution, the White Court was generally supportive of the actions of the states, in questions ranging from second-guessing the state legislature (Purity Extract Co. v. Lynch [1912]) to determining the location of the state capital (Coyle v. Oklahoma [1911]). The Court refused to allow the use of the Thirteenth Amendment protection against involuntary servitude to be invoked against a Florida requirement that all ablebodied men work on the public roads a certain number of days per year (Butler v. Perry [1916]). The Court did, however, refuse to allow a state to interfere with the federal commerce power as exercised by Congress (United States v. Hill [1919]).

References and Further Reading Bickel, Alexander M., and Benno C. Schmidt Jr. 1984. History of the Supreme Court of the United States. Volume IX: The Judiciary and Responsible Government, 1910–1921. New York: Macmillan. Epstein, Lee, Jeffrey A. Segal, Harold J. Spaeth, and Thomas G. Walker. 1996. The Supreme Court Compendium: Data, Decisions, and Developments. 2d ed. Washington, D.C.: Congressional Quarterly. Friedman, Leonard, and Fred L. Israel, eds. 1997. The Justices of the United States Supreme Court, 1789–1995: Their Lives and Major Opinions. 5 vols. New York: Chelsea House. Hall, Kermit L., ed. 1992. The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press. Highsaw, Robert B. 1981. Edward Douglass White: Defender of the Conservative Faith. Baton Rouge: Louisiana State University Press. Pratt, Walter F., Jr. 1999. The Supreme Court under Edward Douglass White, 1910–1921. Columbia: University of South Carolina Press. Urofsky, Melvin I., and Paul Finkelstein. 2001. A March of Liberty: A Constitutional History of the United States. 2d ed. New York: Oxford University Press.

4 Legacy and Impact he period during which Edward Douglass White presided over the Supreme Court is often described as a time of transition. Certainly, the United States was evolving in a variety of ways from a conservative agrarian society largely focused on its own domestic issues to an increasingly industrialized, urbanized society beginning to play an expanding role in world affairs. The issues with which the Court was asked to deal stemmed from these changes and response to them by federal and state governments. Beginning in the late 1800s, federal efforts to regulate business and industry had raised thorny questions about the proper balance between preserving freedom of economic opportunity on the one hand, while guarding against the depredation resulting from ruthless, cutthroat practices on the other. The need for a thoughtful and workable definition of the acceptable range of state and federal police power arose with the efforts of Progressives to cure a range of social ills through passage and implementation of reform legislation. During the first decade of the twentieth century, the Supreme Court under Chief Justice Melville W. Fuller was tasked to deal with constitutional questions raised by government efforts to respond to calls for regulation and reform. Wedded to a traditional concept of limited government, and with little vision of the future to fuel understanding of the need for change, Fuller offered minimal guidance to the Court in crafting any comprehensive intellectual framework that might inform its response to such questions. Opinions in key cases such as Northern Securities Co. v. United States (1904), Swift and Co. v. United States (1905), and Muller v. Oregon (1908) provided useful precedents, but many crucial debates about the proper role of government in regulating the economy and society remained unanswered when the White Court took up its work. Much of the effort of the White Court during its first several years was focused on issues and cases that had been the subject of litigation for a number of years. Major antitrust suits begun during the Roosevelt administration still awaited resolution. Labor conflicts involving both union activity and efforts to improve the lot of individual workers prompted numerous suits. The first significant suits testing the constitutionality of progressive legislation on behalf of consumers, women, and children now arrived before the Court. Although the period 1910–1915 can be described as a time of transition, it can also be characterized as a time when the White Court continued to

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resolve and build on controversies that had troubled the courts and the body politic for at least a decade previously. During the second half of its decade, the White Court was suddenly faced with a bewildering number of new issues, some of them unprecedented, as a result of U.S. involvement in World War I. The passage of preparedness legislation in 1916, followed by the dramatic expansion of federal power to facilitate mobilization, conferred upon the executive branch broader and more comprehensive powers than it had ever possessed before. Questions arose about dangers to the constitutional balance of powers resulting from the broad discretion granted to the president for the conduct of the war. The enforcement of laws designed to curb antiwar activity brought to the forefront as never before debates about the extent of individual liberties protected by the Bill of Rights and whether, when, and to what extent they might be curtailed. White Court rulings in these areas provided groundbreaking precedents that would guide the actions of the government in the decades to come. When he assumed leadership of the Court in early 1911, Edward Douglass White was faced with a number of concerns about that body as an institution. Although he had been a member of the Court since 1894, he was now taking a different role. He was undoubtedly reassured by the knowledge that a number of his colleagues had urged President Taft to elevate him to the chief justiceship, and his familiarity with the internal workings of the Court made him well aware of the responsibilities he was assuming. In addition, White knew that President Taft expected him to bring a greater degree of administrative efficiency to a Court that was plagued with a perennial backlog of cases. As chief justice, White endeavored, not always successfully, to foster good interpersonal relationships among the membership. Shortly after taking over, he initiated the practice, which still continues, of the formal exchange of handshakes by the justices before the beginning of each session. He emphasized a desire to curb the large number of dissents that complicated the Court’s rulings, and for a time, he was successful at doing so. The membership of the Court was itself in a period of flux, with six of its positions changing membership between 1909 and 1913. The eldest member, Justice John Marshall Harlan, was nearing the end of his long service, while some of the new members were beginning terms that would last as much as two decades. In addition, President Woodrow Wilson would replace three more members during the coming decade. Both the changes in personnel and the evolving relationships among the members would have a significant impact on the Court’s work. As any chief justice learns to do, White took into account the relative strengths and weaknesses of his colleagues, limiting the number of opinions assigned to Justice Van Devanter, who suffered from a severe writing block, and encouraging behind the scenes caucusing to build support for controversial decisions.

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White’s efforts in human relations were less successful during the latter years of his leadership. Cooperation among the Court’s membership became increasingly difficult after Louis Brandeis joined the Court in 1916, thanks to the virulent anti-Semitism exhibited by Justice James McReynolds, who refused to shake Brandeis’s hand and would pointedly leave the conference room when Brandeis began to speak. In addition, he turned against Justice John H. Clarke, because of the latter’s friendship with Brandeis, and is said to have made conditions so intolerable as to hasten Clarke’s resignation from the Court. In addition to his inability to resolve this problem, White found his own work increasingly hampered in his last years on the Court by health problems, most notably cataracts.

Regulation of Trusts: Development of the Rule of Reason One of the early decisions of the White Court has been widely regarded by historians as also one of the most important. Chief Justice White, during his years as an associate justice, had served as a member of the Fuller Court as it had struggled to find a satisfactory balance between the continuing demands for regulation of trusts and monopolies on the one hand, and the desire of businesses to operate unrestricted on the other. Although the Court had made several important rulings on the application of the Sherman Anti-Trust Act of 1890, by 1911 the battle between the two sides was still being waged. Two major cases gave White the opportunity to put into practice the compromise for which he had argued as early as 1897. The result was new ways of handling federal antitrust challenges. Toward the end of White’s tenure, the Court ranged even further in its conservative interpretation of the antitrust laws, setting the stage for a distinctly business-friendly atmosphere in the Taft Court years of the 1920s. The efforts to regulate the practices of big business begun in the late 1800s raised a variety of questions for which there were no easy solutions. The Fuller Court dealt repeatedly with demands for a clear explanation of the meaning of the terms of the Sherman Anti-Trust Act of 1890, but their responses failed to satisfy either the businesses whose practices were being challenged or government officials charged with enforcement of the law. A series of lawsuits gave the White Court the opportunity to attempt to come up with a more satisfactory interpretation. Although the “rule of reason” defined by Chief Justice White in one of the first cases to be decided under his leadership seemed to some to provide a reasonable solution, others found it vague and inadequate. In deciding some twenty-seven antitrust suits during its tenure, the White Court continued to wrestle with the difficulties inherent in this controversy, as did

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President Woodrow Wilson and the Congress in crafting new legislation addressing the topic. The Sherman Anti-Trust Act of 1890, the first, and still the most important, piece of antitrust legislation to be passed by Congress, banned combinations of companies or conspiracies among them that interfered with interstate commerce. It also prohibited the creation of monopolies by individual businesses. Its chief weakness lay in its failure to define clearly the meaning of the term in restraint of trade, so that both businessowners and prosecutors found it necessary to resort to the courts for definitive rulings. The ultimate result was a variety of interpretations of the law’s meaning and applications. The reach of the Sherman Act was restricted significantly by the Fuller Court’s first major decision in a case brought under its provisions. In United States v. E. C. Knight Company (1895), a case challenging a virtual monopoly in the sugar-refining business, the justices ruled that the commerce clause empowered Congress to regulate only actual commerce. Therefore most forms of manufacturing, which took place within a single state, were excluded from regulation under the Sherman Act. This ruling set the stage for a long-ranging debate about the nature of different kinds of businesses, as well as for the question of whether it was possible for any kind of business to operate without creating some restrictions on its competitors or on the functioning of various portions of the economy. Both Progressive reformers and certain members of the Court found the ruling in the Knight case unsatisfactory. Businessmen, politicians, and members of the general public adversely affected by the practices of big corporations continued to argue that some sort of effective regulation of the huge conglomerates was essential. Judicial figures, particularly Justice John Marshall Harlan, argued that the Sherman Act should not be interpreted in such a way as to deprive the federal government of the power to regulate production of goods that went into interstate commerce. Those who disagreed argued that strict interpretation of the Sherman Act’s provisions would destroy the authority of the states to regulate economic activity within their boundaries. Clearly, some form of middle ground needed to be reached. Edward Douglass White was among those who had developed his own ideas about the proper solution for this controversy. As associate justice in 1897, he penned a strongly worded dissent in United States v. Trans-Missouri Freight Association, in which he argued that any effectiveness of the Sherman Act necessitated building into it some sort of leeway in its interpretation. White argued that the term unreasonable should be added to the law in order to define more clearly what sorts of business operations were actually “in restraint of trade.” Although several fellow justices supported his dissent, he had no success in persuading Congress to modify the law at that time, nor the Court to alter its interpretation. It was not until after White assumed the chief justiceship in 1911 that he was able to gather sufficient support among the justices to incorporate his view of the Sherman

Legacy and Impact

Act in a Supreme Court ruling. Almost immediately upon assuming the center chair, White rearranged the docket to provide for immediate consideration of a suit that had reached the court on appeal some time earlier. The Justice Department had filed suit against John D. Rockefeller’s petroleum conglomerate in 1906, charging that it controlled more than 75 percent of the refining and marketing in the United States. White himself authored the majority opinion in Standard Oil Co. v. United States (1911), establishing what came to be known as the doctrine of the “rule of reason.” Although Standard Oil was ordered to disassemble its huge complex, White argued in his opinion that the Sherman Act was intended to punish only unreasonable restraints of trade, and that the definition of reasonableness to be found in the common law should be used as a guideline. White’s intent was to, in effect, implement Theodore Roosevelt’s distinction between “good” and “bad” trusts. He wanted to permit federal regulation of business combinations but allow enough flexibility to make it possible for businesses to grow and develop through cooperative arrangements that could be deemed “reasonable.” White refined his reasoning a short time later in another major antitrust suit, United States v. American Tobacco Company (1911), and laid the groundwork for alternative methods of handling such cases. Finding the company in question to be in violation of the Sherman Act, the Court also concluded that it would be unreasonable to order the complete dissolution of the enterprise. The Justice Department subsequently negotiated a series of consent agreements by which the American Tobacco Company could comply with the government’s requirements, yet continue to operate. Justice Harlan, while concurring in the majority opinion, reiterated one last time his concern about White’s reasoning, saying it would make it more difficult than ever for businesses to know what they could do and what they could not. Although it appeared initially that it would be the job of the courts to determine what constituted a reasonable combination, Congress and the president soon took steps to establish legislative guidelines to which the public could refer. With the active support of President Wilson, Congress in 1914 passed laws intended to clarify some of the ambiguities in the Sherman Act. Whereas the Sherman Act had made it unlawful for a business to operate “in restraint of trade,” the Clayton Anti-Trust Act spelled out in detail the types of business activities that President Wilson wanted to bar. These included price discrimination, mergers, and interlocking directorates. The Clayton Act was aimed at banning even the tendency to monopolize. The Federal Trade Commission (FTC), created by legislation passed the same year, was charged with enforcing the Sherman and Clayton Acts. The commission, which ultimately proved to be less than effective, was intended more to work with businesses to help ensure that they complied with the laws, rather than punishing them when they did not. The result of this series of actions was fewer antitrust suits during the next several years of the White Court’s tenure, with the Wilson administration filing some twenty-seven suits compared with the eighty suits initiated by President Taft’s Justice Department.

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The culminating decision of the White Court on the interpretation of antitrust legislation came in a ruling that indicated how far the thinking had evolved since the promulgation of the rule of reason, and presaged the conservative, probusiness attitudes that would dominate during the 1920s. In United States v. U.S. Steel (1920), in an antitrust suit reminiscent of those that had been common during the Roosevelt and Taft administrations, the Justice Department prosecuted the nation’s largest steel conglomerate for violation of the Sherman Act. The suit, first initiated in 1911, was not argued before the Supreme Court until 1917. When the case was finally decided in 1920, Justice William McKenna, writing for the majority, argued that the corporation should be allowed to continue operating unchanged, because the important role it played in both the national and international economy was crucial to the public interest. Bigness, in and of itself, was not punishable under the antitrust laws: “we must adhere to the law and the law does not make size an offense or the existence of unexerted power an offense” (U.S. Steel, 451). Justice William R. Day, dissenting, pointed out the precedent this decision established for a much broader and more sympathetic approach to business in the handling of future antitrust cases. In a related decision during the same term, Federal Trade Commission v. Gratz (1920), the White Court severely restricted the effectiveness of the federal agency that had been created to facilitate enforcement of government regulation of business combinations. Justice James McReynolds, writing for the majority, concluded that it was the courts, not the commission, that ultimately had the authority to decide what constituted unfair methods of competition. Further, a single federal agency should not be permitted to invoke regulations in such a way as to eliminate or severely restrict broad and fair competition. In an action reminiscent of the early treatment of the Interstate Commerce Commission, the Court largely robbed the FTC of its effectiveness in carrying out the tasks it had been created to do. The rulings in U.S. Steel and Federal Trade Commission v. Gratz signaled to business leaders that a new wave of conservatism now influencing the Court meant that efforts to crack down on business combinations in the 1920s were unlikely to find sympathetic ears among the justices of the Supreme Court. They also created fertile soil for the efforts of the Republican administrations in the 1920s to develop cooperative working relationships with big businesses and the trade associations they created to coordinate operations within their industries. The Taft Court, more conservative than that led by White, was consistently probusiness, and found the precedents established in the previous decade useful in their rulings. The White Court had struggled with federal efforts to regulate big business in many of the same ways the Fuller Court had. They outlined the rule of reason as a means of finding the proper balance between Progressive efforts to crack down on ruthless and often unethical practices in the race to build the most profitable business conglomerates, while still remaining cognizant of the contributions these enterprises

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made to the country’s economic growth and development. They also took note of the conservative element in the population who were not ready to endorse the concept of an all-powerful regulatory state.

The Interstate Commerce Commission and the Regulation of Railroads Regulation of the operation of the nation’s network of railroads continued to be an important issue during the decade of the White Court. Both those who operated the railroads and those to whom they were crucial for business and travel sought the Court’s input in support of their interests. In a series of significant decisions, the White Court built upon the precedents of the past two decades, generally supporting and strengthening the powers delegated to the Interstate Commerce Commission (ICC) in a series of congressional actions. By the 1920s, the Court was in general agreement with the perception that the ICC was the federal agency best placed to regulate and manage the operation of the nation’s key systems of transportation. Although the Interstate Commerce Commission found itself hobbled for much of its first two decades by Court rulings that interpreted its powers narrowly, by 1910, the pendulum had begun to swing the other way. In a series of rulings in the 1890s, the Fuller Court had taken a very narrow view of the authority of the ICC under its enabling legislation, ruling that it had no authority to set rates, and that its efforts could be largely undone by courts’ opening investigations de novo. Continuing frustration among railroad owners, fueled by cutthroat competition, and among railroad customers, prompted by high rates and discriminatory treatment, prompted the Progressive push for further reforms. Urged by Theodore Roosevelt and others, Congress passed a series of laws designed to make federal railroad regulation more effective. The Elkins Act of 1903 outlawed all forms of discriminatory treatment, and the Hepburn Act of 1906 gave the ICC new powers to affect the establishment of rates. The Mann-Elkins Act of 1910 strengthened their powers still further. Interested parties watched anxiously to see how the Court would respond to these new regulations. A key Fuller Court decision in 1910 paved the way for the White Court’s support of the ICC. The ruling in Interstate Commerce Commission v. Illinois Central Railroad Company (1910) established a precedent for judicial restraint. The justices said they would henceforth not inquire into the motives behind an ICC ruling, but would only check to ascertain that the legislation through which it acted granted the specific power being exercised. The Court further said that it would henceforth accept without question Congress’s delegation to the ICC of comprehensive rate-setting powers. No longer would plaintiffs be able to rely on the Court’s dissecting ICC rulings and uncovering possible grounds for overturning them. The White Court built upon these prece-

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dents by stating in Mitchell Coal and Coke Co. v. Pennsylvania Railroad (1913) that it would not accept on appeal cases that could be resolved under the authority delegated to the ICC. It endeavored to define ICC rulings as findings of fact so that they could more easily be upheld. Perhaps the most dramatic example of the Court’s adherence to this policy can be seen in the fact that it reinstated twenty-one of twenty-three rulings of the ICC that were overturned by the Commerce Court between 1910 and 1913. The White Court also approved a broader interpretation of the authority of Congress under the Commerce Clause, thus permitting it to expand the definition of the ICC’s authority. One of its key decisions in this regard came in the Shreveport Rate Cases (1914), which dealt with intrastate railroad rates that had the effect of causing discrimination in interstate commerce. Although the Court, through Justice Charles Evans Hughes, had affirmed in Minnesota Rate Cases (1913) that state commissions retained some authority to regulate railroads whose operations extended into interstate commerce, they now explained that the ICC had power to regulate intrastate rates that had the effect of causing discrimination in interstate commerce. Justice Hughes wrote, “The interstate and intrastate transactions of carriers are so related that the government of the one involves the control of the other; it is Congress, not the state, that is entitled to prescribe the final and dominant rule” (Shreveport, 353). The Court also stated that such action was warranted because its effect was to establish some consistency among the policies and rates set by state and federal railroad regulators. Justice William McKenna further spelled out the Court’s support for the broad authority of the ICC to regulate all aspects of railroad operations in Smith v. Interstate Commerce Commission (1917), a case challenging the ICC’s authority to question a railroad owner about financial practices. He wrote that the powers of the ICC “extend to all the activities of carriers and to all sums expended by them which could affect in any way their benefit or burden as agents of the public” (Smith, 42–43). The result of the White Court’s rulings on the role of the Interstate Commerce Commission was to put it in sync with Congress’s views by the end of the decade. The justices increasingly accepted the position of Congress that the commerce clause should be employed as a means of establishing a national economic policy. The Court was also sympathetic to those who argued that the ICC should assume an active role in both regulating and transforming the various systems of transportation to ensure that they served the nation more efficiently and effectively. In spite of this, for much of the decade the ICC interpreted its charge very narrowly. During World War I, a significant portion of the authority of the ICC was superseded by the war powers exercised by President Wilson, but the Transportation Act passed in 1920 restored the responsibilities of the ICC and renewed the call for the commission to take the lead in developing and supervising a national system of transportation. Although the Taft Court echoed this call in Dayton-Goose Creek Railway v. United States (1924), urging

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that the railroads continue under the “fostering relationship” of the Interstate Commerce Commission, the ICC did not rise to the challenge.

Organized Labor The challenge of dealing with the increasingly complex business world of the early twentieth century also involved the White Court in resolving numerous controversies arising out of the activities of organized labor. As unions grew larger and more active in the late nineteenth century, their efforts to achieve a variety of goals for their members resulted in legal conflicts that the courts were called upon to settle. From the 1890s on, numerous decisions had reflected the Fuller Court’s hostility toward union efforts to become the advocates for and representatives of blue-collar workers. This attitude was well entrenched by the time Chief Justice White assumed leadership of the court, and it did not change during his watch. The primary constitutional argument used against union activities was the doctrine of freedom of contract. Invocation of this concept, primarily by conservative capitalists and businessowners, reached well back into the nineteenth century. It argued that no outside force should be allowed to interfere with the freedom of employers and workers to negotiate and bargain to reach an agreement on the terms of employment. Northerners had also stressed the importance of this concept in their emphasis on free labor (as opposed to southern slavery) in the years prior to the Civil War. With the growth and expansion of industrialization in the last third of the nineteenth century, factory owners found the concept a useful tool against increasingly frequent union demands. In the late 1800s and early 1900s, corporate attorneys and sympathetic judges developed the argument that the provision of the due process clause of the Fourteenth Amendment that said no state should interfere with a person’s “liberty,” could be interpreted to include the freedom to negotiate terms of work. Thus was created a second device that could be used effectively against unions. In the Progressive period unions turned increasingly from their broader political agendas to focus on working to achieve better terms on bread and butter issues, such as wages and working conditions. Many preferred to negotiate agreements providing better conditions, but they also resorted frequently to the use of strikes and other forms of direct action. A few were even willing to resort to violence, which exacerbated antiunion hostility among both management and the general public. Businessowners countered the growth of union activity through the use of blacklists, yellowdog contracts, and, to halt strikes, court-issued injunctions. Fuller Court rulings in support of these devices laid the groundwork for similar action by the justices of the White Court.

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White Court rulings in cases involving unions consistently relied on the doctrine of freedom of contract, to reject the arguments on behalf of the rights of organized labor. A case in point was the continuing battle over the use of yellow-dog contracts. Many employers attempted to head off trouble with unions by requiring prospective employees to sign this type of agreement, in which workers promised to refrain from union activity during the period of their employment. In 1898, in an attempt to protect the rights of workers, Congress passed the Erdmann Act banning the use of yellowdog contracts. The Fuller Court had rejected this federal law as a violation of freedom of contract in Adair v. United States (1908). The White Court followed suit in two cases during its tenure. In Coppage v. Kansas (1915), they overturned a state law banning yellow-dog contracts, contending that it violated the Fourteenth Amendment protection of liberty. Two years later, in a suit that also involved the use of antiunion injunctions, the White Court followed the Fuller precedent in Adair in reaffirming the right of an employer to require yellow-dog contracts in Hitchman Coal and Coke Co. v. Mitchell (1917). In spite of the best efforts of unions and even action by Congress, the White Court ruled repeatedly in support of the use of court-ordered injunctions by factory owners against striking union members. Such injunctions began to be issued by courts in the early 1890s as a means of protecting property of factory owners against impending union violence. In 1894, a judge invoked the Sherman Act prohibition against conspiracy to restrain trade as a basis for an injunction to halt the Pullman strike, an argument that the Fuller Court endorsed in In re Debs (1895). Factory owners and probusiness judges quickly embraced the use of this new device, employing injunctions to end strikes and other union actions throughout the country over the next several decades, approximately 4,300 of them between 1880 and 1930. Labor leaders thought that Congress had relieved them of the onus of the injunction when it stated in Section 6 of the Clayton Anti-Trust Act of 1914 that labor was “not a commodity or article of commerce,” and thus antitrust laws based on the Commerce Clause could not be used to block union efforts. Section 20 of the law went even further, stating that “no restraining order or injunction shall be granted by any court of the United States . . . in any case between an employer and employees . . . unless necessary to prevent irreparable injury to property, or to a property right.” Samuel Gompers, head of the American Federation of Labor, hailed this legislation as labor’s “Magna Carta,” but, as rulings of the White Court were to show, his optimism was soon to be dashed in favor of the rights of business. In two decisions a few years later, the White Court first hinted, then stated explicitly, that the Clayton Act provisions did not provide all the protection that unions had hoped for. Hitchman Coal and Coke Co. v. Mitchell (1917) concerned the use of an injunction to prevent organizing efforts by the United Mine Workers among employees of the Hitchman Company who had signed yellow-dog contracts before

Legacy and Impact

being hired. Justice Pitney wrote for the majority that the Court recognized the legitimacy of unions, but it rejected their efforts to interfere with the relationship between workers and their employers in a situation where the terms of hiring prohibited union involvement. The decision here did not involve the terms of the Clayton Act directly, but it did indicate the Court’s continued willingness to allow the use of injunctions against unions in some situations. In its last term the White Court issued a ruling that interpreted the terms of the Clayton Act specifically, and did so in such a way as to make the stated protections for unions much less useful than their authors and supporters had intended. Duplex Printing Company v. Deering (1921) involved a secondary boycott, a device that courts had repeatedly concluded constituted illegal interference with interstate commerce. Again writing for the Court, Justice Pitney limited the reach of Section 6 of the Clayton Act by stating that it applied only in cases where unions were pursuing legitimate objectives, and in those cases only to the parties directly involved in the dispute. This decision created a loophole that would be used repeatedly by the Taft Court during the 1920s to frustrate the efforts of organized labor, beginning in 1921 when Chief Justice Taft ruled in American Steel Foundries v. Tri-City Central Trades Council that even a peaceful strike could not be protected by the terms of the Clayton Act. White Court rulings on labor issues rewarded workers seeking progress in some areas, but they kept in place key stumbling blocks such as yellow-dog contracts and court-ordered injunctions that had hindered efforts, particularly those of organized unions, during the past two decades. The Court’s position reflected the sentiment in this area of much of the public, particularly in the years following World War I. Reliance on the doctrine of freedom of contract had been moderated, and the interests of individual workers had been protected in some areas, but unions still had a long way to go before they would achieve the wholehearted acceptance they were seeking.

State and Federal Police Power The concept of state police power—the power to legislate for the health, safety, and welfare of the public, and to accomplish for them reforms they could not achieve by themselves—had been accepted in the late nineteenth century, and reformers referred to it increasingly in their efforts to recruit state legislatures to assist them in achieving their goals in areas as diverse as regulation of the influx of immigrants, restriction on working hours in dangerous occupations, and the implementation of policies to accomplish prohibition. In the early 1900s Progressive reformers joined the campaign to broaden still further the scope and the usage of state police powers. Courts were generally open to the use of such powers, the Supreme Court itself upholding hundreds of such laws in the first two decades of the twentieth century.

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By contrast, there was more debate about, and less frequent use of, federal police power in the same period. Gradually the Progressive reformers, with the assistance of such supporters as Theodore Roosevelt, persuaded Congress to take a more active role in legislating in areas of social reform. Advocates argued that the growing nationalization of the economy made it impossible for states to regulate successfully where an activity spanned state several states. Many of the cases testing the federal reform laws first reached the Supreme Court during the White era, and most were upheld. The justices struggled with innovative interpretations of constitutional congressional authority, in crafting rulings that were generally supportive of a broader concept of federal police power. In drafting its rulings on the use of state and federal police power, the White Court relied on several general guidelines. They respected the expertise of legislative authorities in deciding what practices needed to be regulated, and to what extent. Many of the topics of police power legislation were to a greater or lesser extent sensitive political issues with which publicly elected officials were best qualified to deal. The White Court also endeavored to support legislation for social reform, while at the same time protecting the interests of business and the marketplace, a juggling act that was not always successful. Since many of the federal regulations were based on the Commerce Clause, the Court frequently found it necessary to consider novel or expanded interpretation of that clause to meet the needs of changing times. Finally, they considered the reluctance of many to see the country move rapidly toward the creation of a powerful regulatory state. The Court endeavored to strike a balance between traditional, conservative points of view on the one hand, and the changing needs of a rapidly developing modern society on the other. One of the great focuses of progressive reformers was improvement of the working conditions of blue-collar laborers who toiled in mines, mills, and factories, particularly women and children. They believed that state and federal police power could be used to achieve improved conditions for blue-collar workers and to make more even the balance of power between workers and their employers. Numerous laws passed in the first two decades of the twentieth century were aimed at achieving this goal by limiting the number of hours worked per day, making employers more responsible for workers injured on the job, creating mandatory workmen’s compensation programs, and banning the use of antiunion devices, such as yellow-dog contracts. Predictably, employers seeking to prevent, or at least to restrict, state control of their relationship with their workers challenged these laws in court. Fuller Court responses in these suits generally supported the exercise of state police power for this purpose, although in some celebrated instances, such as Lochner v. New York (1905), they invoked the doctrine of freedom of contract to limit state control of working conditions. The White Court was generally more supportive of social reform legislation on behalf of laborers than had been its predecessor, although in a few cases it handed

Legacy and Impact

down startling exceptions to this generalization. One such instance involved regulation of child labor. By 1914, almost every state in the union had established restrictions on child labor, and these enjoyed such broad support that the White Court received only one case dealing with state legislation on child labor. In Sturgis and Burns Manufacturing Co. v. Beauchamp (1913), Justice Charles Evans Hughes gave the Court’s unqualified stamp of approval to such use of state police power, writing that one of its most important uses had long been the protection of children. The strength of Hughes’s endorsement for state action did not, however, extend to similar use of federal police power. In one of the most controversial decisions of its tenure, the Court rejected a federal law designed to achieve similar objectives. Because of inconsistencies in the provisions and enforcement of state child labor laws, in 1916 Congress passed the Keating-Owen Child Labor Act. Its provisions were based on congressional power to regulate interstate commerce, and the law made it a crime to transport in interstate commerce products that had been produced in whole or in part by factories in which child labor was used. In Hammer v. Dagenhart (1918), the White Court delivered one of its most criticized opinions. Although the intent of the law was obvious, the Court focused instead on what they considered an unconstitutional application of the commerce power to achieve a regulatory goal. The decision was surprising because of the widespread support for restrictions on child labor, but particularly perplexing in that the White Court had repeatedly accepted the use of the commerce power for regulatory purposes in cases such as Hoke v. United States (1913). Acknowledging public support for their effort, Congress tried another tack, incorporating in a war revenue bill a provision levying a tax of 10 percent on profits from the sale of goods produced with child labor. The Taft Court, following the White Court precedent in Hammer, declared this regulation unconstitutional in Bailey v. Drexel Furniture Company (1922) as an invasion of the powers reserved to the states under the Tenth Amendment. For almost two more decades reformers determined to protect child laborers would have to rely on the use of state police power. It was not until the passage of the Fair Labor Standards Act of 1938 and President Franklin D. Roosevelt’s replacement of the Court’s diehard conservatives that a federal child labor law would withstand Court scrutiny. In their efforts to make working conditions safer and more humane, Progressive reformers sought passage of a variety of other types of laws. They urged modification of the common law doctrines that placed responsibility on the worker and his fellow laborers for injuries incurred on the job. In 1906 Congress passed the Employer’s Liability Act, making businesses engaged in interstate commerce liable for employees injured on the job. When the Fuller Court overturned this as unconstitutional interference with interstate commerce, Congress responded with a revised and strengthened employer liability law in 1908, which the White Court upheld in the Second Employers’

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Liability Cases (1912). This decision indicated the Court’s openness to the development of a body of state and federal liability law that made employers assume responsibility for injured employees. That openness was exhibited even more clearly in a series of decisions having to do with workmen’s compensation laws. Once reformers began to have success in convincing states to develop workmen’s compensation plans that would require employers to make provisions for caring for injured employees, some businessowners began to look for loopholes that could be used to minimize their responsibilities. A series of cases testing state laws gave the White Court opportunities to issue clarifying rulings. Generally speaking, these reflected a certain amount of willingness to accept some limits on freedom of contract in the interest of protecting the defenseless worker. At first, state legislatures were willing to provide businesses with some options whereby they might opt to devise their own plans of compensation. This choice was upheld in 1915 in Jeffrey Manufacturing Co. v. Blagg. In a broader opinion in New York Central Railroad Co. v. White (1917), Justice Pitney approved the passage and enforcement of compulsory compensation laws, saying that they constituted a valid exercise of police power and did not violate the “liberty” guaranteed by the Fourteenth Amendment. The Court went one step further in another case the same year, Mountain Timber Co. v. Washington (1917), by allowing the state to require that employers actually pay into a state-managed fund that would be used to compensate the workers. These decisions represent one of the clearest instances of the White Court’s willingness to approve state action to establish some limits on the free operations of business, and to accept modification of some key principles of the common law in order to do so. The Court in the late 1800s and early 1900s had proved somewhat more reluctant to accept legislation that shortened the workday, arguing in many instances that it interfered with freedom of contract. The Fuller Court had authorized limited working hours for men in dangerous occupations with its decision on behalf of miners in Holden v. Hardy (1898), and its acceptance of then attorney Louis D. Brandeis’s arguments for special consideration for women workers in Muller v. Oregon (1908). In general, however, both the Fuller and White Courts were reluctant to approve any generalized restrictions on working hours that seemed to interfere with the freedom of contract. It was not until the White Court’s ruling in Bunting v. Oregon (1917) that a state law limiting hours for both men and women and instituting the concept of timeand-a-half pay received the stamp of approval. The White Court was more reluctant to endorse legislation that established set wages, but it took a step in this direction when it approved in Wilson v. New (1917) the Adamson Act, a wartime measure guaranteeing set wages and hours for men working for the railroads. In this case, they agreed with the Wilson administration’s argument that the extra step was warranted in order to guarantee that rail service would continue uninterrupted during mobilization for the war effort.

Legacy and Impact

A number of the most celebrated cases having to do with the use of federal police power developed as a result of legislation insisted on by reformers reacting to exposés produced by investigative journalists, the so-called muckrakers. Several of the most important laws initiated forms of government action in the interest of the consumer. These included the Meat Packing Act of 1906, spurred by President Roosevelt in response to public outrage fueled by Upton Sinclair’s The Jungle, and the Pure Food and Drug Act of 1906, demanded by reformers who insisted that the government establish regulations for the processing of those essential items. Predictably, manufacturers and processors resorted to the courts for definitive rulings on the reach of the legislation. The White Court played a significant role in resolving a number of these controversies. In two cases during its first term under White’s leadership, the Court formulated what would come to be known as the noxious articles doctrine. The first, Hipolite Egg Company v. United States (1911), questioned the constitutionality of the Pure Food and Drug Act of 1906. The suit in question challenged the seizure of adulterated food products, in this case, eggs to which chemicals had been added to preserve their shelf life, shipped across state lines, particularly after they had come to rest inside a state. The plaintiffs questioned the circumstances in which the federal government could ban such shipments. Justice William McKenna upheld the act in an opinion in which he rendered a sweeping interpretation of the power of Congress to ensure the purity and safety of foodstuffs. He concluded that the authority of the Congress in cases dealing with illicit products superseded any quibbles about the product’s location or whether its transit had ended: “All articles, compound or single, not intended for consumption by the producer are designed for sale, and because they are, it is the concern of the law to have them pure” (Hipolite, 54). The Court would be the final arbiter of when questionable products were to be subjected to federal control. Not all the justices were willing to approve the application of such a broad brush to the subject of congressional regulation in this area, however. A key example is Justice Holmes’s opinion for a divided Court in United States v. Johnson (1911). In a case concerning the labeling of a product that, it was claimed, would cure a variety of illnesses, Justice Holmes sought to fine-tune the use of the Pure Food and Drug Act by distinguishing between the terms misbranding and misleading. The former, he argued, was prohibited, while the latter was not. The opinion is tinged with Holmes’s impatience with reformers’ efforts to solve what they saw as a wide variety of public problems with legislation of this sort. Two other cases gave the White Court the opportunity to rule broadly on the unlikely subject of prostitution, which one would normally expect to be controlled locally. As a result of the publication of a series of lurid newspaper and magazine articles on the subject of “white slavery”—the luring of innocent girls, particularly immigrants, into prostitution and the subsequent transporting of them to various parts of

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the country for immoral purposes—reformers succeeded in pushing through Congress the Mann Act of 1910, which made it a crime to transport women across state lines for immoral purposes. Predictably, individuals of a practical turn of mind found constitutional grounds upon which to challenge this legislation. The White Court’s rulings in two cases based on the Mann Act served as the relevant precedent for decades to follow. In Hoke v. United States (1913), the Court upheld the conviction of a man who had transported a young woman from Louisiana to Texas for purposes of prostitution. The plaintiff argued that Congress had unconstitutionally invoked the Commerce Clause to intervene in a field normally left for state regulation. In his decision upholding the law, Justice McKenna penned a powerful description of the reach of the Commerce Clause: “The power is direct; there is no word of limitation in it; and its broad and universal scope has been so often declared as to make repetition unnecessary. And besides, it has had so much illustration by cases that it would seem as if there could be no instance of its exercise that does not find an admitted example in one of them” (Hoke, 320). A few years later, the Court took the opportunity to expand the reach of the law yet further. Caminetti v. United States (1917) questioned whether the law could be invoked when the woman being transported for immoral purposes was a willing participant in the scheme. In this case, two young men had taken two female companions, with their understanding and consent, from California to Nevada for the purpose of engaging in sexual relations. Justice William R. Day, writing for the majority, upheld the broad interpretation of the Mann Act. He not only agreed that the reach of the act encompassed immoral activity that was not for financial gain but also emphasized that, where the wording of a law was as plain as that in the Mann Act, the intent of the Congress was absolutely clear, and did not admit of interpretation. Although the topic on which the Mann Act focuses is admittedly narrow, the law was cited frequently in subsequent decades, with the interpretation of the White Court consistently prevailing. The ongoing efforts of prohibitionists, particularly the Anti-Saloon League, to achieve a nationwide ban on alcoholic beverages in the early part of the twentieth century raised a series of constitutional questions having to do with both morality and commerce, as well as with the constitutionality of using the amendment process to achieve social goals. Having tried unsuccessfully to regulate the manufacture, transportation, and sale of alcohol through state legislation, the reformers persuaded Congress to address the subject. Enforcement of the Webb-Kenyon Act of 1913, the Reed Amendment of 1917, and the Volstead Act of 1920 afforded the White Court ample opportunity to rule on such complicated subjects as the relation between federal and state regulation of the shipment of alcoholic beverages into dry states, the power of Congress to pass laws delegating enforcement powers to the states, and the issue of the percentage of alcohol a beverage must contain in order to be defined as “intoxicating.” In general, the Court endeavored not to interfere with the enforcement of pro-

Legacy and Impact

hibition, but to maintain consistency in its interpretation of state police powers, federal commerce powers, and the laws protecting the interests of business and property. The Court was not even relieved of the burden of dealing with the complications of prohibition by the passage and ratification of the Eighteenth Amendment. As will be seen below, opposition to the amendment raised unique questions having to do with the amendment process that the White Court was called upon to resolve. The White Court consistently supported the powers of Congress to legislate, or even to amend, the constitution, in order to achieve its goals concerning prohibition. In Clark Distilling Co. v. Western Maryland Railway (1917), the Court upheld some controversial provisions of the Webb-Kenyon Act, Congress’s first effort to support state enforcement of prohibition without establishing a nationwide policy. Chief Justice White, writing for the Court, supported the bill’s provisions, arguing that Congress, in forbidding shipments only into states where alcohol was forbidden, could constitutionally do in part (i.e., regulate commerce) what it was empowered to do comprehensively. He also stated that it was acceptable for Congress to leave the enforcement of the statute to the states. That was the only practical thing to do, in light of the varying prohibition statutes in the different states. The passage of the Wartime Prohibition Act on November 21, 1918, ten days after the actual end of hostilities, raised other interesting questions not entirely confined to the issue of regulating intoxicating beverages. The law prohibited the manufacture or distribution of alcoholic beverages until the war was declared over. In Hamilton v. Kentucky Distilleries (1919), the Court dealt with the thorny question of how the end of the war was to be determined. They agreed with the Congress that the signing of an armistice did not constitute the end of the war. Rather, the completion of peace negotiations and the issuance of a formal proclamation by the president would constitute the official end of the war. Both the Hamilton case and Rupert v. Caffey (1920) dealt not just with the issues actually being discussed but also with the concerns among brewers and distillers about the impact on their businesses of the impending enforcement of the Eighteenth Amendment, scheduled to take effect in January 16, 1920. Industry leaders wanted to make sure that they profited to the extent possible from their existing stocks before sales were banned. The Ruppert case also put the Court in the interesting position of ruling on a definition of the term intoxicating, which affected which goods could be sold after prohibition began. In October 1919 Congress passed the Volstead Act, the enabling legislation for the amendment, in which they specified that any product containing at least 0.5 percent alcohol was to be considered intoxicating. Writing for the majority in Ruppert, Justice Brandeis concluded that the law (and the amendment) could not be enforced effectively without some definitive standard, and it was well within the powers of Congress to establish that standard, regardless of what they decided it was to be.

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These rulings by the White Court represented only the beginning of the Supreme Court’s work on the subject of the constitutionality and enforcement of prohibition. In the National Prohibition Cases (1920), discussed below, the White Court dealt with the constitutionality of this use of the amendment process, and of the text of the amendment itself. Through the course of the 1920s the Taft Court drew on the precedents set by its predecessor in dealing with a variety of issues related to the enforcement of prohibition. And when the movement for repeal of the Eighteenth Amendment got under way, more constitutional issues were raised, and the Hughes Court was tasked to deal with the issue. The White Court’s careful and pragmatic handling of the early issues related to this complicated topic provided useful precedents for the next two decades.

Civil Rights By the second decade of the twentieth century, the policies of segregation and discrimination that had been implemented under the restored southern governments had reached full maturity. The desire not only to keep blacks inferior economically but to bind them to the land as a permanent labor force had resulted in the development of a system of debt peonage that dimmed any hope blacks might have of economic independence. The Waite and Fuller Courts had given their approval to the institution of separation by race in facilities ranging from train cars to public schools. Citing the doctrine of “separate but equal” as a validation of their practices, southerners had pushed through state legislatures and city councils laws and ordinances that created two separate societies. Southern political leaders had identified, and the Court had allowed to stand, devices such as literacy tests, poll taxes, and the grandfather clause that, used selectively, were effective in depriving blacks of the franchise. With all these policies securely in place, most observers held little hope for significant advancement of civil rights in the period 1910–1921. Woodrow Wilson, the first southerner to occupy the White House after the Civil War, held unenlightened opinions on black-white relations. He approved the proposals of Postmaster General Albert S. Burleson and others in his cabinet that programs of segregation be instituted in the federal bureaucracy. Although groups such as the National Association for the Advancement of Colored People (NAACP), founded in 1909, existed to fight for civil rights, their resources were small and the obstacles many. It would not be until the 1930s that the NAACP would launch its enormously successful legal effort against Jim Crow. In spite of these dim prospects, and the fact that not a large number of noteworthy civil rights cases came before the White Court, historians have generally concluded that the decisions they did write were the most significant contributions to the

Legacy and Impact

field during the period between the end of Reconstruction and the beginning of the post–World War II civil rights revolution. Rejecting the trend largely supportive of Jim Crow policies that had characterized the work of the Waite and Fuller Courts, the Supreme Court took steps for the first time, under the leadership of Edward Douglass White, to interpret the so-called Reconstruction Amendments (Thirteenth, Fourteenth, and Fifteenth) as their post–Civil War authors had intended. Their decisions, putting limits on, if not uprooting Jim Crow policies, were characterized as “symbols of hope” by black leaders such as W. E. B. Du Bois, and by Progressives who had perhaps not hoped for any such progress during the time when a segregationist occupied the White House and a former Confederate presided over the Supreme Court. The first significant White Court ruling to limit discriminatory treatment of blacks came in the so-called debt peonage cases. The first of these, Bailey v. Alabama (1911), had been working its way through the courts for several years before Justice Hughes announced the Court’s opinion in 1911. Alonzo Bailey, a black man, had become caught up in the debt peonage system in Alabama when he was given an advance by an employer and then failed to work it off per their agreement. Bailey was tried and convicted under an Alabama law that equated such failure with the commission of a fraud. Hughes agreed with Bailey’s contention that the Alabama law constituted a violation of the Thirteenth Amendment’s protection against involuntary servitude. The Court’s opinion in this case established an important precedent that could now be used to protect the rights of unsuspecting laborers and served notice to other southern states that their peonage laws, once challenged, would meet a similar fate. Three years later, the Court in Reynolds v. United States (1914) struck another blow against debt peonage, in an effort to protect poor and ignorant laborers in Alabama. This case challenged a law that made it possible to bind a worker to an extended period of servitude. A poor person convicted of an offense, could, by the terms of this statute, avoid imprisonment by contracting with an employer to pay their fines and court costs. In return, the poverty-stricken worker (and it was almost always blacks who were persuaded to enter into these agreements) would bind himself to the employer for a period of time to reimburse him for the money he had paid out. If the worker failed to keep his part of the bargain, his period of servitude might be lengthened, or he could face prosecution and imprisonment. Here again, the Supreme Court invalidated the law as a violation the provision of the Thirteenth Amendment prohibiting involuntary servitude. These rulings did not end debt peonage, but they did demonstrate for the first time the Supreme Court’s willingness to interpret the Thirteenth Amendment to protect the interests of those who bore some of the heaviest burdens of such discriminatory policies. A cornerstone of Jim Crow policy was the “separate but equal” doctrine that had emerged from Court decisions in the 1890s concerning segregation policy. Although, the Fuller Court did not, as is often assumed, specifically use the term separate but

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equal in its decision in Plessy v. Ferguson (1896), the effect of the majority ruling in that case had been to give approval to laws mandating racial segregation in almost every aspect of southern society. In practice, the “equal” portion of the doctrine was largely ignored in most circumstances, and it was this disparity that provided another opportunity for the White Court to strike a blow for civil rights. The case, McCabe v. Atchison, Topeka, and Santa Fe Railway Company (1914), involved an Oklahoma law saying that railroads operating in that state did not have to offer blacks the same kinds of luxury accommodations provided for whites, because there would be so little demand for them. Justice Charles Evans Hughes, under whose leadership the Court would take the first major steps toward dismantling Jim Crow policy in the 1930s, produced an opinion that provided precedent for those later actions. In overturning the Oklahoma law, Hughes wrote for the Court, “if facilities are provided, substantial equality of treatment of persons traveling under like conditions cannot be refused. It is the individual who is entitled to the equal protection of the laws” (McCabe, 161–162). This was the first time that a majority of the Court was willing to go this far in striking a blow against discrimination. The White Court’s initial use of the Fourteenth Amendment on behalf of black plaintiffs combined the issues of discrimination with those of protecting property rights. A group of individuals in Louisville, Kentucky, who were associated with the NAACP, were responsible for the test case of Buchanan v. Warley (1917). This dealt with a city ordinance that prevented blacks from moving into neighborhoods where a majority of the inhabitants were white. In a decision that clearly reflected the ambivalence that the Court’s members experienced in dealing with the larger issues raised by the case, the Court overturned the ordinance, but did so in an opinion that focused on the protection of property rights, not on the larger question of the constitutionality of Jim Crow policy. In so doing, they struck a blow against racial segregation, but the effect was short lived, as opponents quickly developed the device of the restrictive covenant to keep neighborhoods segregated. Not all the Court’s decisions in segregation cases were even as forward looking as that, however. Civil rights advocates were disappointed with the ruling in a case involving a streetcar that crossed the Ohio River to serve riders in both northern Kentucky and southern Ohio. The two states had conflicting rules for the operation of the line, with Kentucky requiring segregated seating, while Ohio did not. In spite of the fact that the Court had ruled in 1915 that the streetcar was covered by the laws governing interstate commerce, in South Covington and Cincinnati Street Railway Co. v. Kentucky (1920), the justices refused to extend this ruling to overturn Kentucky’s requirements for segregation. This decision provides an excellent example of both the thorny character of the civil rights issues with which the White Court was required to deal and the limits in their rulings that were sometimes prompted by the social and political exigencies of the times.

Legacy and Impact

By 1915 blacks in most parts of the South were entirely disfranchised, in spite of the guarantee in the Fifteenth Amendment that no person could be deprived of the right to vote on account of race. It would not be until the 1960s that blacks’ political rights would be fully restored, but the White Court can be said to have taken a step in that direction by ruling against the use of the grandfather clause. This provision had been incorporated in the Oklahoma constitution in a provision that exempted from the literacy test anyone whose ancestors had been able to vote in 1866. Writing for the Court in Guinn and Beal v. United States (1915), Chief Justice White struck down the provision, saying that the fact that it did not mention race did not matter, because its obvious intent was to relieve whites of the necessity of passing the literacy test. In yet another case involving political rights, United States v. Mosley (1915), the Court invoked the Ku Klux Klan Enforcement Act of 1870 to uphold convictions of Oklahoma election officials who had acted to prevent blacks from voting. Although these decisions made only small dents in the overall program of racial discrimination, they were and are significant because of the Court’s willingness to use federal law against the states in order to defend black civil rights. Although the White Court’s rulings on civil rights issues were much more farreaching than those of the Courts that preceded it, some historians have argued that it is unrealistic to make too much of them. Despite its progress on the subject, the Court largely reflected in its actions the overwhelmingly prevalent attitudes of the U.S. population at the time. It was not willing to join the strong crusade for the rights of blacks that Justice John Marshall Harlan had advocated during his time on the Court. Whether the justices took the steps they did to implement the protection of the Reconstruction amendments out of conviction or because the discrimination measures in question were so blatant that they could not be ignored, it can fairly be said that the White Court deserves credit for laying groundwork for the advances of the civil rights movement in the decades that followed.

War Powers The participation of the United States in World War I during the decade when the White Court was in place brought about a number of questions of broad constitutional significance. Most of the laws that were passed and the policies that were adopted to enable the country to prosecute the war effort successfully were accepted by the public as necessary and were never challenged in suits that reached the Supreme Court. Of those that did, only one major case was decided by the Court while the war was still ongoing. The resolution of others was delayed, either by decision of the Court, or by the time consumed in the appeals process, until after the war was over. In reviewing the warrelated issues that came before it, the Court, as was its constitutional obligation,

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considered the questions with a much broader focus than had the Congress that had passed the laws, or the president who had executed them. The Court’s response was generally one of strong support for the exercise of broad national power during wartime. Since most of the laws that had been challenged were absolutely essential for the successful conduct of the war, the Court generally approved their use without question. The result was the establishment of precedents that would be relied on by future administrations in times of crisis. The major case dealing with the exercise of federal power during wartime that the Court heard before the end of World War I had to do with the creation and carrying out of the draft. Soon after declaring war on Germany in April 1917, Congress passed the Selective Service Act establishing a plan for conscription. All men between the ages of twenty-one and thirty (later eighteen and forty-five) were required to register. Ultimately, 2.8 million able-bodied, unmarried men without dependents were drafted for service in the war. Only a few thousand were exempted as conscientious objectors, based on their religious beliefs. Partly as a result of antiwar sentiment, and partly because some men believed they could fight the draft on constitutional grounds, a series of cases in 1917 and 1918 asked the Court to resolve a number of questions arising from the Selective Service Act. The Selective Draft Law Cases (1918) asked the Court to resolve a number of controversies, including whether or not Congress could constitutionally create a draft, and whether the law’s provision for its implementation unconstitutionally delegated authority to the president and to local draft boards. The Court’s answers to these questions came expeditiously and almost summarily. In a unanimous opinion authored by Chief Justice White, the justices emphasized the authority of the Congress under Article I to raise an army and navy and to provide for the common defense. They said, in effect, that these powers are meaningless unless the Congress can compel citizens to serve. Further, they emphasized that citizenship carries with it obligations as well as privileges. The Court also agreed that Congress could constitutionally delegate the administrative responsibility for implementing the draft. Finally, the justices found no merit in the argument that the law’s provision of exemptions for ministers and seminary students constituted a violation of the First Amendment prohibition of actions supporting the establishment of religion. A few months later, another case, Cox v. Wood (1918), questioned whether troops conscripted through the draft could be used in foreign conflicts. Again, Chief Justice White almost testily dismissed the query. The Court’s rulings in all these cases was a strong endorsement of the constitutional authority of the federal government to carry out its duties to provide for the military defense of the nation. The justices brooked no challenge to the use of the draft as a means of carrying out those responsibilities. These precedents were relied on, and in some cases, modified as circumstances warranted, in the use of conscription programs during and following World War II.

Legacy and Impact

Among the groundbreaking pieces of wartime legislation were those that gave the president extensive authority to control the production, manufacture, and allocation of items crucial to support of the war effort, particularly food and fuel. The Lever Food and Fuel Control Act of 1917 gave the president power to regulate the production, processing, distribution, and sale of food products and to take over and operate mines and factories. The absence of provisions for restrictions on, or oversight of, the president’s exercise of this power raised concerns among members of Congress who opposed the legislation. Some also charged that the law allowed the president to invade areas normally left to the control of the states, thus violating the Tenth Amendment. Supporters of the bill, including Wilson, argued that during wartime the federal government should be able to do anything reasonably related to the war effort. All were reassured by the knowledge that control of these important areas of the economy would be restored to their original private owners after the war was over. Both concerns about the Lever Act’s constitutionality and opposition from businesses affected by the new rules led to a series of lawsuits that ultimately reached the White Court for resolution. The Court did not rule in the seminal case until 1921, well after the end of the war. The decision was significant, nevertheless, because it established precedents that would be drawn on in future times of crisis. United States v. L. Cohen Grocery Company (1921) resulted from the sale by a St. Louis retailer of sugar at a price higher than that allowed by the law. In his opinion for the majority, Chief Justice White made two major points. First, he affirmed that Congress could make broad delegations of power in time of war, but he also stipulated that such legislation must establish careful guidelines. The Lever Act was unconstitutional because it had not provided sufficient detail to clarify the restrictions imposed, or to outline the punishment that infractions entailed. A law without these careful provisions could be considered to infringe on Fifth and Sixth Amendment guarantees of the right to a fair trial. The Court rejected the law not because of the broad grants of power included, but because of the lack of necessary guidelines for their enforcement. This ruling would prove instructive in coming decades when Congress acted to expand presidential powers during the crisis of the Great Depression and to provide for mobilization in support of World War II. Another wartime issue that reached the Court dealt with matters related to federalism—the question of whether the national government, in carrying out its mobilization efforts, could infringe on areas of authority normally reserved for the states. In the summer of 1916, as part of its program of preparedness, Congress had passed a law authorizing the president to take over and operate the railroads in time of war. When in 1917 the government began authorizing the transportation of troops and supplies for use in the war effort, conflicting schedules and priorities resulted in huge traffic jams. President Wilson issued a proclamation in December 1917 by which he took possession of the railroads and named William G. McAdoo director general of their operation.

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Although the law carefully recognized the power of states to regulate intrastate rail traffic, McAdoo denied that his actions fell under their jurisdiction. The North Dakota Utilities Commission, joined by thirty-seven other states, filed suit asking the courts to decide whether it was constitutionally acceptable for the agencies the president created for this purpose to override intrastate rates and other policies. Chief Justice White, writing for the majority in Northern Pacific Railway Co. v. North Dakota (1919), left no doubt as to the Court’s position. He stated that the federal government’s war powers reached as far as needed in order to cope with the requirements of the crisis. He noted that the federal government would compensate the railroad owners. The Court reached a similar conclusion in a case concerning telephone and telegraph lines. The result of the Court’s decisions in these and similar cases was to give that body’s approval to the exercise of broad powers by the federal government, particularly the executive branch, during wartime. It was to be expected that the Court would do as little as possible to interfere with the successful pursuit of the war effort. The fact that most of the decisions were not handed down until well after the conflict had ended did not mean that the rulings were of little significance. The Court, in effect, gave its stamp of approval to the conduct of the war, but, more importantly, it established precedents for the broad use of federal and executive power in times of crisis that might arise in the future.

Civil Liberties No strong civil liberties tradition existed in American constitutional law prior to World War I. Up to that time state and federal governments had had few occasions to consider it their responsibility to focus on either the restriction or protection of individual rights, and few cases dealing with such issues had reached the courts. During the decade of the White Court, however, a variety of concerns prompted lawsuits that asked the Court to make decisions concerning the protection of civil liberties, particularly under the terms of the free speech and free press clauses of the First Amendment. The Court also had occasion to establish important guidelines for the interpretation of the Fourth Amendment. In addition, a few of the justices began to consider whether it might be possible under the Constitution to apply the provisions of the federal Bill of Rights to protect citizens from encroachment on their liberties by state governments. The Court’s struggle to determine whether, and under what circumstances, restrictions could be put on individual liberties, and conversely, whether the argument should be made for absolute protection of those rights, laid the foundation for what was to become in subsequent decades a strong libertarian tradition. The strongest civil liberties controversy to arise out of World War I concerned the extent of First Amendment protection for freedom of speech and press. Up until

Legacy and Impact

this time, few occasions had arisen that provided opportunity for elaboration on these provisions. The passage of restrictive laws in the Victorian era, such as the Comstock Acts of 1873 and 1876, which censored use of the mails for materials deemed damaging to morals, had prompted the creation of organizations such as the Free Speech League. Founder Theodore Schroeder failed to garner broad support for his argument in favor of absolute protection for free speech, however, and his group faced an uphill battle in defending such controversial figures as birth control pioneer Margaret Sanger or political radical Emma Goldman. Courts and attorneys called upon to deal with the few cases concerning free speech prior to World War I generally relied on the arguments put forth in Sir William Blackstone’s Commentaries. This much-cited reference took the position that prior restraint of speech or press was prohibited, but once ideas had been broadcast, the initiator could be punished if the courts deemed the material harmful. Only one major case concerning this issue was heard by the Fuller Court, and Justice Oliver Wendell Holmes Jr. followed the traditional guidelines in his decision in Patterson v. Colorado (1907). He concluded that the First Amendment could not be used to prevent punishment of speech or press considered dangerous, nor could the truthfulness of the statements be cited in the defendant’s favor. This decision existed as the primary precedent available when a series of First Amendment cases arose as a result of outspoken opposition to U.S. participation in World War I. Antiwar activities spurred by U.S. entry into the conflict in 1917 led to lawsuits challenging restrictions on freedom of speech and freedom of the press. In support of President Wilson’s call for strong support for the war effort, Congress passed, and the Justice Department set out to enforce, the Espionage Act of 1917 and its corollary, the Sedition Act of 1918. These laws punished, among other actions, spoken and printed criticism of the war effort and of the government and efforts to interfere with the conduct of the draft. In a series of cases resulting from violations of these laws, the White Court issued rulings that took a relatively narrow view of First Amendment rights, emphasizing instead the importance of protecting government interests in times of crisis. Although these positions would not ultimately stand the test of time, they would play an important role in laying the groundwork for increased attention to civil liberties issues during the remainder of the twentieth century. The first such case, Schenck v. United States (1919), challenged the conviction of a Socialist leader who had published and circulated pamphlets urging resistance to the draft. Schenck argued that the right to free speech protected him even during wartime. In his opinion for the Court, Justice Oliver Wendell Holmes Jr. created the “clear and present danger doctrine” to explain the circumstances under which the Court believed such restrictions were warranted. Using his famous reference to the dangers of shouting “Fire!” in a crowded theater, Holmes illustrated the concept of the common law doctrine of “proximate causation” to explain why punishment was justified when

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speech was clearly designed to achieve a specific result. The Court underscored Holmes’s opinion in two other antiwar cases, Frohwerk v. United States (1919) and Debs v. United States (1919), decided shortly thereafter. The establishment of the clear and present danger doctrine created a precedent that many justices on the Court would be obliged to deal with in First Amendment cases for decades to come. Perhaps in part because of the reaction prompted by his opinion in Schenck, however, Holmes within a short time joined with his colleague Louis D. Brandeis to began to craft a more nuanced interpretation of the provisions of the First Amendment, one that would afford greater protection for individual liberties. Influenced by the argument of legal scholar Zechariah Chafee Jr. that protection of free speech was crucial in a democratic society, he first outlined his evolving perspective in his dissent in Abrams v. United States (1919). In a case challenging the conviction of a Russian immigrant who had published a pamphlet criticizing U.S. intervention in the Russian revolution, Holmes invoked the concept of the “marketplace of ideas,” to argue that “the best test of truth is the power of the thought to get itself accepted in the competition of the market” (Abrams, 629). Brandeis followed up on Holmes’s initiative with his dissent in Schaeffer v. United States (1920), a case challenging the conviction under the Espionage Act of five men associated with a German-language newspaper in Philadelphia. He argued in favor of defining the concept of “clear and present danger” narrowly, so that only the most threatening instances of speech or publication would be punished. It would be some time before the clarified positions outlined by Holmes and Brandeis would command support of a majority of the justices, but one sees clearly here the beginning of the path toward acceptance of absolute protection for speech and press. From time to time throughout the existence of the U.S. Constitution, individuals had questioned whether the civil liberties guarantees spelled out in the Bill of Rights could also be interpreted as protecting citizens against encroachments on their rights by state governments. The general consensus for more than a century, spelled out most clearly by Chief Justice John Marshall in Barron v. Baltimore (1833), was that the federal Bill of Rights restricted only the federal government, and that citizens must look to state constitutions for protection of their rights at that level. This precedent prevailed, in spite of infrequent attempts to challenge it, until after World War I. It was not until well into the 1920s that the U.S. Supreme Court was willing to consider seriously whether the federal Bill of Rights’ application might be broadened to control state action. It is generally agreed that Justice Louis D. Brandeis first helped to lay the groundwork for what came to be called the nationalization of the Bill of Rights in his dissent to the White Court’s ruling in Gilbert v. Minnesota (1920). During World War I, many states had emulated the federal government by enacting sedition laws. This suit challenged the validity of prosecution under such a Minnesota state law of a person who

Legacy and Impact

had criticized the federal draft effort. Justice William McKenna, writing for the majority, sustained the constitutionality of the sedition statute as a valid exercise of state police power, but Brandeis argued that state laws should not be allowed to interfere with the exercise of a federally protected right. He suggested that the sedition law had violated the ban on state interference with individual liberty spelled out in the Fourteenth Amendment. This contention that the amendment provision “nor shall any State deprive any person of life, liberty, or property without due process of law” might justify restricting state action against individual liberties was a powerful concept. Brandeis’s arguments in his dissent were influential in the Court’s subsequent ruling in Gitlow v. New York (1925), in which it said that, in some cases, the Fourteenth Amendment could be interpreted as applying the protections of certain portions of the federal Bill of Rights to prevent state restrictions on civil liberties. Although the White Court did not itself arrive at this conclusion, the influence of the opinions in which Brandeis worked out the theory on which it would be based constitutes an important part of the White Court’s legacy. Two decisions by the White Court also provided important contexts for the interpretation of the Fourth Amendment protection against unreasonable search and seizure. This provision, which spells out careful guidelines for the examination of a person’s home and possessions, including the requirement of a warrant specifically defining the nature and extent of the search to be conducted, had until the twentieth century gone largely unexamined by the federal courts. The question raised in the cases in question had to do with the admissibility in prosecutions of evidence that had been obtained without the use of warrants required by the amendment. The first case, Weeks v. United States (1914), dealt with the warrantless arrest and search of a man named Weeks who was accused of using the mail to transport lottery tickets. In deciding the case for a unanimous Court, Justice William R. Day wrote the opinion that established what later came to be known as the “exclusionary rule.” He said that the courts must protect the rights of accused criminals. If material seized without a warrant could be used against a defendant, the provisions of the Fourth Amendment had no meaning. This ruling established an important guideline for the conduct of searches by federal officers. Justice Oliver Wendell Holmes Jr. expanded on the Weeks ruling in Silverthorne Lumber Co. v. United States (1920), a case in which the property of the accused had been searched and seized while they were held in jail. Perhaps expressing, in part, his loss of patience with the use of such tactics by the Justice Department during this period of the Red Scare, Holmes wrote that illegally seized material “shall not be used at all.” The exclusionary rule defined by these cases established the basic criteria that would be used for decades in determining the admissibility of evidence in federal courts. The Taft Court, however, carved a major exception to the doctrine in 1927 when it established the “silver platter doctrine.” This ruling, in Byars v. United States,

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permitted the use in federal courts of evidence seized illegally by state officials. It was not until the Warren Court’s ruling in Elkins v. United States (1960) that this loophole was finally closed. In recent decades conservative Courts have debated the wisdom of establishing a “good faith” exception to the exclusionary rule. The Burger Court did define a very narrow version in United States v. Leon (1984), but on the whole, the terms of the exclusionary rule continue to determine the admissibility of evidence. The controversies over civil liberties issues that were spawned by activities resulting from opposition to U.S. participation in World War I gave rise in the 1920s to the beginning of a libertarian movement in the United States, the most visible symbol of which was the founding of the American Civil Liberties Union (ACLU). Established in 1920 by Roger Baldwin as a reincarnation of the Civil Liberties Bureau, which had fought for individual rights during the war years, the ACLU gradually became the leading organization dedicated both to the defense of civil liberties and to the advocacy of an expanded interpretation of the Bill of Rights. The White Court quite inadvertently helped to nurture support for the organization through both the frustrations resulting from its negative rulings and the glimmerings of hope provided by the eloquent dissents penned by Holmes and Brandeis in many of the same cases.

Growth of Federal Power Various issues and events prior to and during the White Court years prompted the expansion of federal power. The development of an economy that was increasingly national in scope, and the resulting complexity of relationships in business and industry made necessary the establishment of a bureaucracy that could regulate these enterprises effectively. Demands from both reformers and the general public that the federal government implement policies to regulate consumer goods, protect the interests of women and children, and support efforts to institute prohibition, as well as assist with the achievement of other social goals, resulted in the development of an expanded concept of the reach of federal police power. The outbreak of, and eventual U.S. involvement in, World War I made necessary redefinition of presidential war powers and the expanded grants of authority that resulted from it. Disputes over the application of an obscure agreement concerning migratory birds provided the opportunity for redefining the reach of international treaties. Finally, the passage and ratification of four constitutional amendments during this decade provided an opportunity for the Court to interpret this infrequently used portion of the Constitution. In the two decades before Edward Douglass White assumed leadership of the Supreme Court, that body had gradually accepted the necessity for the creation of government agencies for special purposes. Beginning with the Interstate Commerce Commission in 1887, Congress had established commissions to regulate specific areas

Legacy and Impact

of business. The Fuller Court had slowly come to the conclusion that these bureaucracies were necessary to administer laws in fields for which Congress had neither the time nor the expertise. The first Supreme Court approval of the use of this so-called doctrine of administrative discretion had come as early as 1892 (Field v. Clark), and the Fuller Court had subsequently expanded on it by ruling in Buttfield v. Stranahan (1904) that Congress might delegate certain administrative decisions. The White Court gave the final stamp of approval to the doctrine in United States v. Grimaud (1911). Here the Court ruled that orders of federal administrative agencies had the force of law, and that Congress could provide that violations of them were to be punished in the same way as infractions of criminal statutes. In numerous instances during the subsequent decade, the White Court supported the use of this form of government regulation as well as the creation of additional administrative agencies. By the time the White Court era began, much of the spadework of finding constitutional bases for a federal police power had already been done. In the late nineteenth century, justices had struggled with the concern that federal regulation for the health, safety, and welfare of citizens violated the principle of federalism by encroaching on areas of power reserved for the states. By the early 1900s, however, it became increasingly evident that regulation in many areas of concern could not be done effectively by states. The Fuller Court began, with its decision in Champion v. Ames (1903), allowing Congress to regulate transport of lottery tickets across state lines, to develop an expanded interpretation of the commerce power to give Congress discretion to act on issues of social and moral concern. The White Court expanded on earlier precedents in approving many of the Progressive reform laws and giving a more expansive interpretation to the commerce power than ever before, as for example in Justice McKenna’s opinion in Hipolite Egg Company v. United States (1911). Approval of a broad interpretation of the Commerce Clause became so routine that the country reacted with shock to the limitation imposed upon it in Hammer v. Dagenhart (1918). Regarded by many at the time as an aberration, the decision proved to be the exception rather than the rule, and the White Court’s record overall indicated its confirmation of a broadened doctrine of federal police power. The institution and exercise of a broad range of executive authority during World War I was widely accepted, including, as a whole, by the Supreme Court. Chief Justice White’s statement in Northern Pacific Railway Co. v. North Dakota (1919) that “the complete and undivided character of the war power of the United States in not disputable” (Northern Pacific, 149) set the tone for the justices’ attitude in ruling on challenges to Congress’s grant of broad powers to the executive for the control of everything from the production and distribution of foodstuffs and industrial products to the operation of the railroads and systems of communication. The one caveat the Court voiced, in United States v. L. Cohen Grocery Company (1921), was not a limitation of federal power, but a caution to spell out guidelines for its use more thoroughly. The

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Court approved summarily the use of conscription to implement congressional authority to establish military forces and denied any restriction on the power of the government to use such troops wherever required. The White Court’s wholehearted consent to the development and use of a wide range of extraordinary executive powers during wartime laid the groundwork for the use of expanded government authority in future times of crisis. A few cases that came before the White Court in its later years tasked it to deal with innovative thinking about the uses to which portions of the Constitution might be put. In the latter part of the nineteenth century, some scholars had expressed the opinion that amending the Constitution was no longer a practical way of achieving political goals. Progressive reformers disagreed, however, and in the decade between 1910 and 1920, succeeded in having passed and approved four amendments designed to accomplish their goals of establishing a federal income tax, making possible direct election of senators, implementing nationwide prohibition, and guaranteeing women’s suffrage. Although some minor cases asked the Court to resolve controversies over the implementation of the amendments, it was a set of cases in response to the passage of the Eighteenth Amendment that gave the White Court opportunity to expound on the intent of the Founders in drafting Article V of the Constitution. The National Prohibition Cases (1920) posed two major issues. The first argued that the use of the amending power to achieve prohibition was improper use of Article V, because it was intended to relate only to the powers and organization of government. The amending power was not unlimited. Secondly, the plaintiffs contended that the amendment violated the spirit of federalism, because it gave the federal and state governments concurrent power to enforce the regulation. Although the opinions of the justices on the subject varied widely, the majority were able to endorse the opinion produced by Justice Willis Van Devanter, who, writing for the Court, rejected the attempts to limit the amending power: “The prohibition of the manufacture, sale, transportation, importation and exportation of intoxicating liquors for beverage purposes, as embodied in the Eighteenth Amendment, is within the power to amend reserved by Article V of the Constitution. That Amendment, by lawful proposal and ratification, has become a part of the Constitution and must be respected and given effect the same as other provisions of that instrument” (National Prohibition Cases, 386). As has been noted above, the White Court was the first to be called on to deal in any specific way with the extent of the civil liberties guaranteed to citizens by the federal Bill of Rights. Relying on common law tradition and the limited precedent available, and undoubtedly influenced by the temper of the times, the justices repeatedly agreed that the rights spelled out in the first ten amendments were not absolute and could be restricted as necessity required. Consideration of the issues raised, and participation in the public and scholarly debate that their responses prompted, however, led some of the justices to begin to ponder more thoroughly than ever before, the true

Legacy and Impact

meaning of the concept of civil liberties. Expressed in dissents by Justices Holmes and Brandeis, arguments resulting from this intellectual ferment laid the groundwork for the development of the field of civil liberties law, which would occupy an increasingly important place on the Court’s agenda during the remainder of the twentieth century. Finally, it should be noted that Congress expanded the power of the U.S. Supreme Court during the White Court years for the first time since 1789. The Judiciary Act passed that year had made state courts the final authority on their own constitutions, and had provided that no decision in which the state court affirmed the authority of the federal constitution could be appealed to the U.S. Supreme Court. In the early 1900s, Progressive reformers became increasingly concerned about decisions of conservative state courts, which, while upholding the authority of the federal constitution, put limits on the effectiveness of some of the reforms they had fought for. Finally, in 1914, Congress acted to allow the U.S. Supreme Court to review any state cases in which state laws were reviewed on federal grounds. In order to permit the Court control over its workload, the law gave the Court discretion, through the use of a writ of certiorari, to decide which of such cases it considered important enough to hear.

Comparison to the Taft Court The Supreme Court under the leadership of Chief Justice William Howard Taft, 1921–1930, built upon the legacy of the White Court in some areas, but rejected it in others. Taft was a much stronger leader and a more effective administrator than White. Having longed for many years to be chief justice, and having been an inveterate court watcher, Taft had definite ideas about the things he wanted to accomplish as chief justice. He had appointed a total of six justices to the Court while he was president, and some of them remained. He had endeavored, not always successfully, to influence the selection and approval of nominees during the Wilson administration. Now that he occupied the center seat, he actively lobbied for the appointment of men who supported his conservative agenda. When the Court decided important cases, he worked hard to build majorities in support of what he considered the correct ruling. Taft also actively exercised control over the judiciary as an institution. He lobbied for its reorganization, achieving his greatest success in securing passage of the Judiciary Act of 1925, which gave the Supreme Court expanded discretion in deciding which cases it would hear by means of the use of the writ of certiorari. Concerned that the Court be accorded the proper respect and prestige, Taft campaigned successfully for the construction of a proper new home for the Court, although he did not live to see it completed. In the area of substantive issues, those that concerned the Taft Court most were ones dealing with economic and business interests. Although the Taft Court is widely

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regarded as having endorsed the resurgence of a federal laissez-faire approach to business in the 1920s, it should be acknowledged, first, that it did not build on a new foundation, but, rather, worked from major precedents set by previous courts. Secondly, it is also important to note that the White Court was not continuously opposed to the regulation of business, but sought to modify and adjust such guidelines to fit what it saw as the temper of the times. The Taft Court was at least as actively antilabor as had been its predecessor. The White Court’s ruling in Duplex Printing Co. v. Deering (1921), creating a loophole in the Clayton Act’s ban on injunctions against labor unions, served as a convenient precedent for a series of decisions in 1921 continuing the trend. The Taft Court was no innovator in the area of civil rights, but it was also not totally blind to the horrors of conditions for black Americans, either. It endorsed a small, but important, advance in the campaign to alleviate the disfranchisement of blacks in the South by outlawing white primaries in Nixon v. Herndon (1927). It was also actively hostile to the efforts of the Ku Klux Klan, repeatedly ruling against their campaign to foster racism and terrorism. Viewed as a whole, the work of the Taft Court was more conservative than that of its predecessor. It can be argued, however, that, like the White Court, the Taft Court operated in a time of continuing transition. In spite of the country’s development during the previous two decades of an increasingly bureaucratic state, no comprehensively effective system of regulation for business and the economy had been established. The country was a long way from finding solutions to the violence and discrimination fostered by Jim Crow policy or acknowledging a legitimate role for organized labor. Civil libertarians were just beginning to find the means with which to argue for stronger definitions of individual rights. The Taft Court did not craft comprehensive answers to any of these challenges, but, working from the precedents established by previous courts, continued the process of interpreting the Constitution to respond to the changing needs of the twentieth century.

References and Further Reading Bickel, Alexander M., and Benno C. Schmidt, Jr. 1984. History of the Supreme Court of the United States. Volume IX: The Judiciary and Responsible Government, 1910–1921. New York: Macmillan. Chafee, Zechariah, Jr. 1954. Free Speech in the United States. Cambridge: Harvard University Press. Cohen, Jeremy. 1989. Congress Shall Make No Law: Oliver Wendell Holmes, the First Amendment, and Judicial Decisionmaking. Ames: Iowa State University Press.

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Currie, David P. 1990. The Constitution in the Supreme Court: The Second Century, 1886–1986. Chicago: University of Chicago Press. Hall, Kermit L., ed. 1992. The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press. Hamm, Richard F. 1995. Shaping the Eighteenth Amendment: Temperance Reform, Legal Culture, and the Polity, 1880–1920. Chapel Hill: University of North Carolina Press. Highsaw, Robert B. 1981. Edward Douglass White: Defender of the Conservative Faith. Baton Rouge: Louisiana State University Press. Murphy, Paul L. 1972. The Constitution in Crisis Times, 1918–1969. New York: Harper and Row. Polenberg, Richard. 1987. Fighting Faiths: The Abrams Case, the Supreme Court, and Free Speech. New York: Viking. Pratt, Walter F., Jr. 1999. The Supreme Court under Edward Douglass White, 1910–1921. Columbia: University of South Carolina Press.

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PART TWO

Reference Materials

Key People, Laws, and Events

Adamson Act The Adamson Act was passed in September 1916 at the urging of President Woodrow Wilson in order to avert a pending strike of railroad workers. Earlier in the year the four brotherhoods of railroad workers had made demands that the railroad owners were unwilling to meet. The workers demanded an eight-hour day, no reduction in wages, and time-and-a-half for overtime. At the time, workers were paid a flat rate for a ten-hour day, or for working a one hundred-mile run in fewer than ten hours. Unions claimed that the railroads had been shipping heavier loads at slower speeds, thereby making more money, but not having to pay additional wages. President Wilson attempted unsuccessfully in the summer of 1916 to broker an agreement between the two sides, proposing an eight-hour day, pro rata pay for overtime, and the creation of an investigative commission to settle disputes between labor and management. Unions agreed to the proposal, but railroad owners did not. Unions thereupon threatened a strike to take place on September 4, 1916. President Wilson, concerned about the harm a strike would do not only to the national economy, but also to the nation’s preparedness for potential involvement in World War I, went before Congress on August 29, 1916, and asked Congress to pass a law enacting the provisions that he had offered to the two sides in his mediation. After some minor fine-tuning, Congress passed the law on September 2, 1916, and the unions agreed to call off the pending strike. Implementation of the terms of the law was prevented by the filing of numerous lawsuits in the fall of 1916. Some hoped that the dispute could be settled before the law’s official implementation date of January 1, 1917, but the lawsuits did not work their way up to the Supreme Court in time. That body heard arguments in the case of Wilson v. New (1917), in early January, but delayed ruling for more than two months. In the interim, restlessness increased among the unions to the point that they threatened a strike in early March if a decision were not forthcoming. Wilson appointed

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mediators, and the pending dispute was settled in line with the terms of the Adamson Act on March 19, 1917. Shortly thereafter, Chief Justice Edward Douglass White announced the opinion of the Court upholding the Adamson Act. He stated first that there was no doubt of the power of Congress under the Commerce Clause to pass a law regulating working hours and establishing means by which labor disputes that might interfere with interstate commerce could be settled. The sticking point in the case was the question of whether Congress could set wages, which, it had been widely argued, interfered with the doctrine of freedom of contract. White skirted this issue by pointing out that the law’s provision concerning wages was only a temporary resolution, and that, if Congress, in attempting to prevent the disruption of interstate commerce had as a consequence to legislate concerning wages, the Court felt it had the authority to do so.

Administrative Discretion Doctrine As the operation of business and industry in the United States became more complex in the late nineteenth and early twentieth centuries, it became increasingly difficult for Congress to legislative effectively for the regulation of complex business operations. Members of Congress lacked the necessary expertise to address specific issues related to the businesses, and it was impossible to draft legislation that covered every topic that might need to be regulated. The solution was the creation of agencies or commissions within the executive branch that were given discretionary powers to regulate certain types of businesses. The practice was initiated with the passage of the Interstate Commerce Act of 1887, creating a commission to specialize in the regulation of the railroads. Many other similar commissions were to be created in the ensuing decades. The powers granted to these agencies and commissions by the Congress were the subject of repeated challenges before the Supreme Court. In a series of key decisions, the Court upheld Congress’s use of what the Court came to call the doctrine of administrative discretion. At issue were charges that the creation of the agencies was unconstitutional because Congress had delegated its own power to legislate, and that the nature of the authority delegated violated the constitutional separation of powers. In Field v. Clark (1892), the Court upheld a provision of the Tariff Act of 1890, making a distinction between an agency’s finding of fact and actual policymaking. Approval of the doctrine was broadened in Buttfield v. Stranahan (1904), in which the Court allowed that Congress might authorize an agency to make certain minor policy decisions. It is generally recognized that the Supreme Court gave its complete stamp of approval to the doctrine of administrative discretion in United States v. Grimaud (1911), in which it said that Congress could stipulate that decisions of the agencies it created had the force of law and could be punished in the same way as violations of a regular criminal statute. The long-term result of the acceptance of the doctrine of

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administrative discretion was the ability of Congress to regulate certain enterprises more effectively than they could have otherwise done.

Bad Tendency Doctrine This doctrine resulted from efforts of the White Court to define the extent to which freedom of speech or press might be restricted when either posed a threat to the political order. The concept had its origins in the writings of Blackstone on the English common law of libel, specifically the punishment of speech that might cause illegal action. During the White court years the issue arose primarily in cases brought under the Espionage Act to punish actions that might be detrimental to the war effort. The bad tendency doctrine is generally considered to have originated in the efforts of Justice Oliver Wendell Holmes Jr. to clarify restrictions on free speech that were permissible even in light of the First Amendment. Holmes initially addressed the subject in the case of Patterson v. Colorado (1907), where he made the point that, while the First Amendment prohibited prior restraint, it did not prevent the subsequent punishment of speech or press that had a tendency to interfere with government. More serious and extensive consideration of the issue resulted from the Court’s consideration of a series of suits filed under the Espionage Act to punish antiwar efforts during World War I. In Schenck v. United States (1919), Frohwerk v. United States (1919), and Debs v. Unites States (1919), Holmes wrote for the majority. Here he articulated and expounded upon the “clear and present danger” test, which he believed should be used as a yardstick in determining when speech or printed words should be punished in times of crisis. He emphasized that the right of free speech was never absolute, either in time of peace or in time of war. Holmes further pointed out that the actual success, or its likelihood, of the action encouraged by the speech, was not necessary to justify punishment. Only the “bad tendency” indicated by the speech was sufficient. Within months, however, influenced in part by the arguments of Judge Zechariah Chafee Jr., Holmes began to modify his position. When the majority sustained conviction under the Sedition Act of a group of Russian immigrants who had published pamphlets critical of U. S. actions (Abrams v. United States [1919]), Holmes joined Brandeis in dissent. Referring to the common law doctrine of proximate causation, Holmes argued that it was wrong to punish critical speech, which had little likelihood of achieving any success in interfering with government actions. The two justices made this argument repeatedly in a series of dissents in other First Amendment cases during the next several years. Their persuasive arguments eventually laid the groundwork for the principle, accepted by the 1940s, that, while actions that constituted “clear and

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present danger” deserved punishment, those that exhibited merely a “bad tendency” did not. This distinction was blurred somewhat by redefinition of the two terms during the McCarthy era of the early 1950s.

Burleson, Albert S. Albert S. Burleson, postmaster general during the administration of President Woodrow Wilson, was a native of Texas. He graduated from Baylor University and the law department of the University of Texas before joining an Austin law firm. He soon began a career in Democratic politics in Texas, holding various local and state offices before being elected to Congress in 1898. He served a total of seven terms in the U.S. House of Representatives, focusing particularly on winning passage of a variety of bills to assist the development of agriculture. Prior to serving in the house, Burleson was attorney for the Twenty-sixth Judicial District in Texas, during which time he became good friends with Col. Edward M. House, a confidante of Woodrow Wilson. When Wilson became president in 1913, House encouraged him to appoint Burleson to the office of postmaster general, a position he held for the duration of the Wilson administration. In addition to being head of the post office, Burleson served in 1918 as chair of the U.S. Telegraph and Telephone Administration. He also oversaw the beginning of airmail service in the same year. Despite serving in a federal office that normally has a low profile, Burleson aroused a good deal of controversy and criticism during his service under Wilson. A few weeks after the beginning of the Wilson administration, Burleson proposed, and the president agreed to, a policy of segregation in all federal offices. In addition to the Post Office, the Bureau of the Census, the Bureau of Printing and Engraving, and other federal bureaucracies began to segregate their workers in offices, workshops, and even restaurants and restrooms. Burleson also authorized post office officials in the South to downgrade or discharge black employees. In addition, he aroused criticism by refusing to allow strikes by postal employees and for interfering with the operation of private businesses. The most notorious of Burleson’s actions, however, came as a result of the passage of the Espionage Act of 1917. A provision of the law gave the postmaster general authority to exclude from the mails any material considered to be treasonous or seditious. Burleson was accused by some of using this power in a prejudicial way. A political conservative, Burleson considered any criticism of the government as unpatriotic, especially during wartime. He proceeded to ban from the mails for the duration of World War I such liberal publications as The Appeal to Reason, The Masses, and The Milwaukee Leader. Barring distribution of such publications by mail amounted to essentially putting them out of business. By doing this, Burleson sent a message to the editors of other publications of the potential threat that faced their magazines and

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newspapers. After the end of the war, Postmaster Burleson cooperated with Attorney General A. Mitchell Palmer in combating the perceived threats of Communists and other radicals during the Second Red Scare. Burleson’s public career ended with his departure from Washington at the end of the Wilson administration.

Clayton Anti-Trust Act of 1914 The Anti-Trust Act of 1914 was drafted and sponsored by Rep. Henry D. Clayton (D.–Ala.) in response to President Woodrow Wilson’s desire to elaborate more specifically on the general restrictions on business outlined in the Sherman Anti-Trust Act of 1890. The Clayton Act enumerated numerous proscribed business activities, including price discrimination, limiting a dealer from marketing competing products, the establishment of interlocking directorates, and the purchase by one company of stock in a competitor’s business. More so than had the Sherman Act, the Clayton Act placed an emphasis on prevention of illegal business activity, rather than punishment after the fact. The Clayton Act also included, at the behest of farmer’s labor organizations and the leadership of unions such as the American Federation of Labor, provisions limiting the use of injunctions to curtail or halt strikes and other actions by organized labor. Section 6 of the act provided that the law should not be interpreted to prevent unions from engaging in their lawful activities. Section 20 provided that injunctions should be used against labor activity only when “necessary to prevent irreparable injury to property, or to a property right.” Although the act was hailed by Samuel Gompers, head of the American Federation of Labor, as labor’s “Magna Carta,” the somewhat vague and general terms of the act ultimately allowed the Court to diminish its usefulness. In the years that followed, the U.S. Supreme Court interpreted the law’s provisions narrowly, finding loopholes that vitiated much of its intended strength. Some federal suits successfully punished price fixing, but lawsuits against major corporations were not successful. Justice William McKenna’s opinion for the majority in United States v. U.S. Steel (1920) illustrated the Court’s renewed willingness to allow major corporations to continue many of their business practices uninterrupted. McKenna contended that U.S. Steel had not succeeded in monopolizing the steel industry, nor had it attempted to unfairly suppress its rivals. He concluded that the use of informal means of cooperation was not punishable under the Clayton Act. Similarly, in Duplex Printing Co. v. Deering (1921), the Court weakened the act’s provisions intended to ensure protection for organized labor. Because the action in question was a secondary boycott, Justice Mahlon Pitney argued that it did not come under the protection of Section 6 of the Clayton Act. It was, therefore, enjoinable as an interference with interstate commerce. This decision indicated to both labor and management that the prohibition against injunctions contained loopholes that could be used to greatly weaken its usefulness.

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Common Law This term refers to judge-made law produced in the English royal courts, beginning more than eight hundred years ago. Common law is sometimes described as “unwritten law” to distinguish it from the more formal statutory law produced by Parliament. In fact, however, common law exists in print in the many published volumes of legal cases, covering such areas as property, contract, and tort law. Common law has been revered in part because it is considered impartial—not based on economic or class interest. It reflects the development of a country’s legal issues and their resolution. English common law was carried to the American colonies from their inception and was adapted as needed to fit conditions in the new communities in North America. Once independence was declared, all the states passed laws “receiving,” or accepting application of common law within their jurisdictions. Today, every state’s legal system operates, in whole or in part, on the basis of the common law tradition and procedures. States have continued to revise and build upon it as needed. There is no federal common law in the United States. The U.S. Constitution contains some of the principles of common law, including the rule that courts may hear only specific cases and controversies, that the government must protect the civil liberties of its citizens, and so on. Courts long debated the need for a system of federal common law. It was not until 1938 that Congress passed a law stipulating that federal court decisions can be based only on the Constitution or on specific federal laws. Widely considered the best explication of the topic from the U.S. point of view is The Common Law, authored by Oliver Wendell Holmes Jr. Published in 1881, it had significant influence on the work of Holmes and his contemporaries on the U.S. Supreme Court in the late nineteenth and early twentieth centuries. Holmes emphasized the objectivity and attention to protecting the common good in his commentary. In discussing the application of the common law, Holmes argued, “The true explanation of the rule is the same as that which accounts for the law’s indifference to a particular man’s temperament, faculties, and so forth. Public policy sacrifices the individual to the general good.” One of the challenging tasks of the U.S. Supreme Court in the early twentieth century was to evaluate laws that diverged from the traditional common law guidelines in order to benefit the common good. Examples include labor legislation, such as the Employers’ Liability Act, which aimed to protect laborers in spite of such common law doctrines as assumption of risk, and laws regulating business restrictions on property rights in order to maintain competition in the marketplace or to protect the rights of consumers. Although acknowledging the continued validity of much of the common law, the White Court strove to establish a balance between traditional rulings and the changing needs of modern times. Overall, they were not as willing to eject common law provisions as would be their successors.

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Davis, John W. Davis was widely regarded during his lifetime as one of the country’s outstanding constitutional lawyers. He began his career in public service as a U.S. representative from West Virginia, 1911–1913. He served as solicitor general in the administration of Woodrow Wilson from 1913 to 1918, then represented the United States at the Court of St. James, 1918–1921. He was several times mentioned, but never selected, for nomination to the U.S. Supreme Court. Davis was the unsuccessful Democratic candidate for president in 1924. During the Franklin D. Roosevelt administration he was an outspoken opponent of the New Deal. He ended his career as chief attorney for the opposition in Brown v. Board of Education (1954). Davis spent much of his career specializing in arguing cases on appeal, both as a member of an elite New York law firm and as Wilson’s solicitor general. He argued a total of 140 cases before the U.S. Supreme Court, more than any other attorney of the time. Davis was a strong advocate of a traditional view of the law, and of the importance of the doctrine of stare decisis. He also believed in states’ rights, strict construction, and the protection of private property rights. Among the important cases Davis argued for the government during his term as solicitor general were Hammer v. Dagenhart (1918), in which he supported federal legislation restricting child labor, Wilson v. New (1917), in which he supported the Adamson Act regulating wages and hours for railroad workers, and Cox v. Wood (1918), in which he argued vigorously in support of the constitutionality of the draft.

Debs, Eugene V. Eugene V. Debs was a labor leader and the most prominent Socialist in U.S. history. Born in Terre Haute, Indiana, he went to work on a railroad at the age of fourteen. Initially a member of the Brotherhood of Locomotive Firemen, Debs early saw the need for a union that encompassed all types of railroad workers and was one of the founders of the American Railway Union in 1893. He spent the rest of his life as an active spokesman in behalf of unions and laborers. As president of the American Railway Union, Debs led railway workers in a secondary boycott in support of the Pullman workers’ strike in 1894. Railroad owners sought and obtained an injunction to halt the strike, which Debs and his associates ignored. Debs was subsequently arrested, tried, and convicted on charges of contempt of court. He appealed to the U.S. Supreme Court for a writ of habeas corpus, charging that his right to due process had been denied because he had been tried in an equity court with no jury. Justice David Brewer, in a unanimous ruling for the Court in In re Debs (1895), denied Debs’s request. Although the federal circuit court had focused its ruling in the case on the use of the Sherman Anti-Trust Act to issue injunctions against

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labor unions (which the court approved), Brewer cast his net more broadly, arguing that the use of injunctions to halt strikes was constitutional under the federal commerce power and the requirement that the federal government ensure the delivery of the mails. The result of the case was the institution of the injunction as a powerful new tool to be used against organized labor. Debs emerged from prison in 1895 as a convert to Socialism, a cause to which he would devote much of the rest of his life. He became the cause’s leading writer and spokesman and ran for president five times as the Socialist candidate, garnering 6 percent of the popular vote in 1912, and almost a million votes in 1920, in a campaign he ran from a federal prison cell in Atlanta, Georgia. In 1905 Debs helped to found the Industrial Workers of the World, one of the most radical and violent industrial unions of the early twentieth century. Debs’s second appearance before the U.S. Supreme Court came as a result of his outspoken opposition to U.S. involvement in World War I. In a speech in a public park in Canton, Ohio, in the summer of 1918, Debs almost seemed to invite arrest under the newly passed Sedition Act when he spoke out against the war effort and encouraged young men to refuse to cooperate with the draft. Debs was arrested, convicted, and sentenced to ten years in federal prison. His appeal to the U.S. Supreme Court was based on arguments that the Sedition Act was a violation of First Amendment freedom of speech guarantees. The White Court ruled unanimously against him in one of Justice Oliver Wendell Holmes Jr.’s opinions in which he argued in support of the necessity of restrictions on free speech during wartime. This opinion in Debs v. United States (1919) constituted one of three decisions in this vein that Holmes produced before he began to rethink his position on the “clear and present danger” doctrine that would ultimately lead to his becoming an outspoken dissenter against such restrictions.

Elkins Act The Elkins Act was passed in 1903 with the support of President Theodore Roosevelt. One of Roosevelt’s commitments as president was to enforce and improve upon the regulation of big business by the federal government. The Interstate Commerce Act of 1887 had made it a crime for railroads to offer rebates and kickbacks to their customers, but customers were not prevented from asking for them. In the ensuing period, railroad owners began to support revision of the Interstate Commerce Act to free themselves from such constant requests from customers, particularly those in the petroleum and livestock businesses. The combined support of the president and the railroad owners resulted in the passage of the Elkins Act of 1903. The act required that railroad rates be published, made the published rates the legal rates, and stated that any deviation from those rates in any way constituted a

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crime. The law was to be enforced by action of the Interstate Commerce Commission. The law allowed for prosecution of both carrier and shipper for any such violations. The U.S. Supreme Court confirmed the constitutionality of the Elkins Act in Armour Packing Co. v. United States (1908). The Armour Packing Company, along with several others, had been convicted of soliciting concessions from the Chicago, Burlington, and Quincy Railroad for carrying packinghouse products. The plaintiffs contended that the Elkins Act was intended to punish only fraudulent actions on the part of the contractees. Justice William R. Day, writing for the majority, rejected this argument. He interpreted the law as being intended to guarantee that all shippers be treated the same, and to prohibit “any and all means that might be resorted to to obtain or receive concessions or rebates from the fixed rates, duly posted and published” (Armour, 72). Day further concluded that “the regulations of interstate commerce provided by the statute now under consideration are within the acknowledged power of Congress under the interstate commerce clause of the Constitution” (79).

Erdman Act of 1898 Congress passed the Erdman Act in 1898 in response to the labor unrest engendered by the Pullman strike of the immediately preceding months. Basing its action on the Commerce Clause of the U.S. Constitution, Congress enacted the law to regulate relations between interstate railroad carriers and their employees. The Erdman Act established a system of mediation and arbitration by which disputes between the two groups might be resolved. The act created a board of arbitration made up of the commissioner of labor and the chairman of the Interstate Commerce Commission to serve as mediators. Considered more important by labor unions was the provision of the act outlawing the use of so-called yellow-dog contracts, by which employees were required as a condition of employment to sign an agreement promising not to join a labor union. The law also prohibited employers from discriminating against potential employees because of their past union activity. The constitutionality of that portion of the Erdman Act dealing specifically with yellow-dog contracts was challenged in Adair v. United States, which reached the U.S. Supreme Court in 1908. An employer charged with violating the act for firing an employee for union membership argued that the law was unconstitutional because it violated the right to freedom of contract guaranteed by the Fifth Amendment. The Court, in a decision written by Justice John Marshall Harlan, agreed. Harlan’s opinion agreed that the law was unconstitutional, saying, “the common good was not adequately served by this law, and therefore, could not justify interfering with freedom of contract” (Adair, 171). Justice Oliver Wendell Holmes Jr., writing in dissent, contended that the Erdman Act was a valid exercise of federal power and that the Constitution

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should not be used to prevent the passage of such beneficial legislation. The Court’s decision in Adair was subsequently used as by the Court as precedent for overturning similar state laws, most notably in Coppage v. Kansas (1915), in which Justice Mahlon Pitney specifically referred to the 1908 decision as a guideline.

Espionage Act of 1917 Congress enacted the Espionage Act in June 1917 in response to concerns about antiwar activities following the U.S. entry into World War I in April of that year. The law contained a wide variety of measures aimed at not only the actions of foreign agents but also at any disloyal or subversive activities carried out by people within the United States. It punished efforts to cause insubordination in the armed forces and interference with the draft or with other efforts to recruit and enlist soldiers in the U.S. armed forces. It also prohibited the seizure of passports, search warrants, and arms intended for export, as well as the goods on foreign ships in U.S. ports. The law also contained sections dealing with censorship, including one banning from the mails, at the discretion of the postmaster general, any written material judged treasonous or seditious. The Espionage Act set penalties of $10,000 in fines and up to twenty years in prison for anyone found guilty of violating the Espionage Act. The following year the Congress further extended the provisions of the legislation through passage of the Sedition Act of 1918. (See entry in this section.) A large number of indictments under the Espionage and Sedition Acts during World War I resulted in more than 1,500 prosecutions and more than 1,000 convictions. The U.S. Supreme Court under Chief Justice Edward Douglass White issued precedent-setting rulings in a number of these cases heard on appeal. Most of these cases challenged restrictions on freedom of expression through arrests for making antiwar speeches or for publishing pamphlets and newspaper articles urging resistance to the draft. In the first such case, Schenck v. United States (1919), Justice Oliver Wendell Holmes Jr., arguing that certain restrictions were justifiable in wartime, established the “clear and present danger” doctrine. The Court relied on this precedent in upholding the Espionage Act in Frohwerk v. United States (1919), Debs v. United States (1919), and Pierce v. United States (1919). Soon after these opinions were issued, however, some of the justices, principally Holmes and Brandeis, began to advocate a more moderate approach to First Amendment restrictions, beginning with their dissent in Abrams v. United States (1919).

Federal Trade Commission The Federal Trade Commission (FTC) was a regulatory agency created by Congress in September 1914 at the request of President Woodrow Wilson. The commission con-

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sisted of five appointed commissioners and took the place of the Bureau of Corporations created by President Theodore Roosevelt. Its purpose was to outlaw unfair trade practices and, in Wilson’s view, to be a source of assistance and support to the business world. He hoped it would help businesses realize when they were engaging in potentially illegal business practices and give them advice in changing their method of operation. Eventually the FTC was also given the assignment of policing export associations and labeling, packaging, and warranty practices; and of taking action against discriminatory pricing and misleading advertising. Although intended to function like the Interstate Commerce Commission, the FTC found that its enabling legislation granted it much more discretion in defining the business practices it was designed to counteract. Although the intended purpose of the FTC was to aid businesses by investigating and putting an end to unfair business practices, the agency was not very effective during the first decades of its existence. Neither of Wilson’s first two appointees to head the commission was an able leader, and the Harding and Coolidge administrations packed the commission with probusiness nominees in the 1920s. It was not until it was reorganized during the administration of Franklin D. Roosevelt that the FTC began to actually perform the functions for which it had been created. The U.S. Supreme Court also contributed to the FTC’s lack of effectiveness through its rulings in the first major cases to challenge the agency’s powers. Writing for a majority of the White Court in Federal Trade Commission v. Gratz (1920), Justice James C. McReynolds argued that the Court, rather than the commission, had ultimate authority to define what an unfair trade practice was, since the Court eventually reviewed FTC decisions on these issues that came to it on appeal. In 1923 the Taft Court further weakened the agency by ruling in Federal Trade Commission v. Curtis Publishing Company that the Court also had the power to review de novo the facts on which the FTC’s rulings were based, and to conclude for itself what the ruling in the case should be. The result was that businessmen who received unfair rulings from the FTC now understood that they could start afresh when presenting their cases to the federal courts and thereby have an increased chance of seeing the FTC’s rulings overturned.

Frankfurter, Felix Felix Frankfurter is widely regarded as one of the outstanding U.S. Supreme Court justices of the twentieth century. He served on the court from 1939 to 1962, but had a long and influential career in law and politics before being nominated to the Court. Having immigrated to the United States from Vienna as a young boy, Frankfurter avidly pursued his education, graduating first in his class from Harvard Law School in 1906. He pursued a career in both law and politics while simultaneously holding a position as a professor at Harvard Law School from 1913 to 1939.

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Frankfurter took on a variety of responsibilities during the decade 1910–1920, serving consecutively in the Wilson administration as assistant secretary of war, assistant secretary of labor, and then as chair of the War Labor Policies Board during World War I. After Brandeis was appointed to the U.S. Supreme Court in 1916, Frankfurter took over his responsibilities as counsel for the Consumers’ League in the wage and hour case of Bunting v. Oregon (1917), winning victories that year both in this case and in two minimum wage cases. In addition to being a strong supporter of Progressive reform, Frankfurter early earned a reputation as a champion of civil liberties. He was a founding member of the American Civil Liberties Union, an outspoken opponent of the handling of the Sacco and Vanzetti case, and a critic of the Palmer raids. Throughout his career, Frankfurter sought out professional relationships with men whom he admired in politics and the law. He was a close friend of Justices Holmes and Brandeis, and also considered justice Cardozo, whom he replaced on the Court, to be a role model. He was a confidante of Justice Brandeis, often doing research for him and taking on assignments in political advocacy in his behalf through the 1920s and 1930s. Frankfurter developed early in his career a lasting friendship with Franklin D. Roosevelt, whom he knew when both men served in the Wilson administration. During the 1930s he was one of Roosevelt’s most trusted advisers and increased his influence on New Deal policy by securing jobs in the Roosevelt administration for a number of his Harvard Law School students. President Roosevelt chose Frankfurter as his third nominee to the U.S. Supreme Court, to replace Justice Benjamin Cardozo in 1939. During his two and a half decades on the Court, Frankfurter became one of its most influential members, using his considerable political and intellectual skills to build majorities to support his positions. Frankfurter’s primary emphasis during his years on the Court focused on the importance of judicial restraint. He argued that the Court should defer to the legislature as a matter of principle in almost all cases, especially those involving social reform. He also emphasized support for state police power. Reformers who had respected Frankfurter in earlier years as a champion of civil liberties were dismayed with his application of judicial restraint to Bill of Rights issues. He argued that the Court should defer to the states in this area as they did on economic issues. Perhaps the outstanding example of his application of this principle came in the two flag salute cases, Minersville School District v. Gobitis (1940) and West Virginia State Board of Education v. Barnette (1943). Frankfurter wrote the majority opinion in the first case, stressing the need for the Court to defer to the community’s assessment of its needs, in this case to emphasize attention to patriotism at the expense of the religious scruples of school students. When Justice Robert Jackson reversed the Court’s stand on this issue, speaking out in support of freedom of conscience in the Barnette case, Frankfurter produced a ringing dissent in which he held

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to his previous contention that, even on such controversial topics, the commitment to judicial restraint was essential. From the 1940s until his resignation in 1962, Justice Frankfurter built a reputation as the intellectual leader of the Court. He rejected Justice Black’s argument in Adamson v. California in favor of incorporation of the entire Bill of Rights under the Fourteenth Amendment, a position that the Court has continued to sustain. He concurred in the Court’s opinion in the steel seizure controversy in which it concluded that presidential power must be guided by the “will of Congress.” He repeatedly denounced the Court’s consideration of “political questions,” most notably in Baker v. Carr (1962), in which he dissented from the Court’s decision to take on the issue of reapportionment. In these and other cases, Frankfurter’s emphasis on judicial restraint provided moderation and balance for an increasingly liberal Court.

Fuller, Melville W. Melville Weston Fuller served as chief justice of the U.S. Supreme Court from 1888 to 1910. His tenure in that position immediately preceded that of Edward Douglass White, and spanned years of significant economic, political, and social changes, all of which had a dramatic impact on the work of the Court and its response to the issues that it was called upon to consider. Fuller was born and spent his early years in Maine, where he graduated from Bowdoin College in 1853. He read law in his grandfather’s law office and studied briefly at Harvard Law School. He established a law practice in Chicago, where he specialized in commercial cases and, particularly, appellate work. He briefly pursued a political career, serving as a delegate to the Illinois Constitutional Convention of 1861 and one term in the Illinois House of Representatives. Fuller had had no judicial experience before he was appointed to be chief justice by President Grover Cleveland in 1888. The appointment was influenced by the fact that Fuller and Cleveland held similar views on economic issues and, according to some, by Cleveland’s hope that the nomination would help strengthen Illinois’s support for Democratic candidates in the 1888 election. As chief justice, Fuller established a reputation as an excellent administrator and as a peacemaker among his brethren. He has been rated by some historians as one of the best presiding officers the Court has had. His record as a jurist and legal thinker, however, is generally considered somewhat average. Although Fuller did not like division on major issues, he did not actively oppose dissent, and frequently voiced his own opinions as a member of the minority. The Court’s membership under Fuller was not subject to major changes in personnel, another factor that facilitated his administration. In terms of judicial philosophy, Fuller, and in many cases the Court as a whole, were strong supporters of laissez-faire constitutionalism and of the rights of property

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that that protected. One of his most important opinions was that in United States v. E. C. Knight Company (1895), in which he vitiated the usefulness of the Sherman Anti-Trust Act through his restrictive definition of commerce. In 1895 he authored the majority opinion in Pollock v. Farmers’ Loan and Trust Company, in which he struck down reformers’ efforts to establish a federal income tax. He was also generally a supporter of the doctrine of freedom of contract, voting against most legislation designed to improve the conditions of labor by placing restrictions or obligations on employers. Fuller was an outspoken conservative on matters related to federalism. He was uncomfortable with the establishment of a doctrine of federal police power. In his dissenting opinion in Champion v. Ames (1903), he wrote, “To hold that Congress has general police power would hold that it may accomplish objects not entrusted to the General Government, and to defeat the operation of the Tenth Amendment” (Champion, 365). He feared that too extensive use of regulatory powers by the Congress would destroy the separation of powers between the state and federal governments. Fuller also expressed concern about the expansion of state regulatory powers and their effect on commerce and business. In his majority opinion in Leisy v. Hardin (1890), he objected to states regulating the sale of goods shipped in interstate commerce and called upon the Congress to act to establish national uniformity. In at least one instance he expressed the opinion that there might be areas of commerce that were constitutionally beyond the reach of either the federal or state governments. Fuller was not a strong supporter of the civil rights of minorities. His opinions reflect a rejection of the intent of the constitutional amendments passed following the Civil War, particularly the Fourteenth. He consistently voted with the majority in rejecting claims for the protection of the rights of blacks against the restrictions imposed by Jim Crow legislation. In the series of cases raised by the acquisition of overseas territories in the late nineteenth and early twentieth centuries, Fuller also took a conservative position, one in keeping with his general support for the concept of limited government. He agreed with members of the Court who argued that the Constitution and the government could not be separated—that the full protection of the Constitution applied in any area under U.S. control. He did not favor expanding congressional power to allow for differing degrees of application of constitutional authority in different territorial possessions. The legacy left for the White Court by Fuller’s era of leadership was one of generally conservative responses to most of the issues that had come before it. In serving during the period when the country moved slowly from its insular agrarian background in the nineteenth century to the increasingly urban and industrialized conditions of the twentieth, the Fuller Court provided little groundwork upon which the White Court could build as it struggled to provide a transition into the modern age.

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Gompers, Samuel Samuel Gompers was one of the preeminent labor leaders of the late nineteenth and early twentieth centuries. Born in London to a family of Dutch cigar makers, Gompers immigrated to New York City at the age of thirteen. He went to work there for German cigar makers, who encouraged self-improvement, education, and intellectual stimulation for their workers by having books read aloud in the workroom and permitting debates. Gompers soon joined a craft union, in which he quickly took an active role. By the 1880s he was a leader in the Cigar Makers International Union, encouraging it to take a more dynamic role, on the order of European unions of the time. He became a founding member of the Federation of Trade and Labor Unions in 1881, and the first president of the newly formed American Federation of Labor (AF of L) in 1886, a position he was to hold, with the exception of a single year, until his death in 1924. As head of the AF of L, Gompers strove to combine the best characteristics of the craft and trade unions. He favored what he called “pure and simple” unionism, eschewing political activity in favor of working toward goals that would bring improvements in the lot of the average worker. He hired organizers to increase the strength of the unions, and he personally negotiated jurisdictional disputes with other unions. Membership of the AF of L increased steadily under Gompers’s leadership, rising from 500,000 members in 1900 to a peak of four million by 1920. In working with employers, Gompers focused on achieving his goals through the negotiation of agreements rather than through the use of strikes. By the end of his career Gompers could point to the achievement of, among many others, his most heartfelt lifelong goal, the universal eight-hour day. Gompers served as a national spokesman and lobbyist on behalf of the interests of union members. He supported no particular party, but did endorse individual candidates who espoused the union’s objectives. In the late 1800s he joined other antiimperialists in speaking out against the acquisition of foreign territories, which he feared would flood the country with cheap labor. He campaigned for legislation to assist labor and dubbed the Clayton Anti-Trust Act of 1914 labor’s “Magna Carta” because of its provisions against the use of injunctions to bring an end to strikes. He was later acutely distressed when the Supreme Court’s decision in Duplex Printing Co. v. Deering (1921) created a loophole that limited the provision’s effectiveness. He served on the Advisory Committee of the Council on National Defense in World War I and traveled to Versailles to advise President Wilson in the peace negotiations. Gompers played a role, directly or indirectly, in many suits involving labor issues that reached the Supreme Court during the years of Chief Justice White’s leadership. One such case that is illustrative of the tactics of Gompers’s leadership is Gompers v. Buck’s Stove and Range Company (1911). Workers at the Buck’s Stove and Range

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Company had gone out on strike as the result of a labor dispute. Gompers and his associates in the American Federation of Labor authorized the publication of an article in the union publication the American Federationist urging union members to support the strikers by boycotting Buck’s products. Buck’s brought suit against the union leaders, charging that their action was in defiance of a court injunction prohibiting such action. Although the initial suit was dismissed, Gompers and his associates were eventually convicted and sentenced for contempt. The U.S. Supreme Court reversed the convictions because the statute of limitations had expired, but in so doing, they rejected Gompers’s contention that the First Amendment protected such protest activities.

Harrison Narcotic Drug Act of 1914 In its efforts to control traffic in harmful substances, Congress engaged in a controversial exercise of the federal taxing power. The question raised by the passage of laws such as the Harrison Act was whether the taxing power could be used indirectly to accomplish the restriction or prohibition of questionable substances. The Harrison Act regulated the possession, distribution, and sale of opium and coca leaves by means of a series of detailed requirements applied to those engaged in such transactions. Anyone who produced, manufactured, distributed, sold, dispensed, or otherwise dealt in opium or coca leaves or products made from them was required to pay an annual tax of $1, and to register with the Bureau of Internal Revenue. Sales or other transfers of these products had to be recorded on forms obtained from the bureau, and failure to do so was a crime. Forms were not to be used to obtain the products for any purpose other than lawful resale or dispensation in professional practice. Sellers had to maintain records of each transaction and had to keep these documents on file for two years. The law also forbade anyone who had not registered and paid the tax to possess the drugs. A series of legal and constitutional questions were raised by the terms of the Harrison Act, and several of these ultimately reached the White Court for resolution. In 1916, United States v. Jin Fuey Moy, a case involving a Pittsburgh doctor who had sold the drug to an addict, was resolved in a decision by Justice Holmes, who restricted the terms of the law to apply only to those individuals, doctors, pharmacists, and the like, specifically mentioned in Section 1 of the law. Addicts were thereby exempted from the law’s requirements. The Court refined this position in Webb v. United States (1919), ruling that doctors and pharmacists might not keep a supply of drugs specifically to be dispensed to those who were addicted outside the normal procedures of the medical practice. In 1919 in United States v. Doremus, the Court ruled on the broader question of the constitutionality of the use of the taxing power for regulatory purposes. The plaintiff also raised the issue of whether the legislation encroached on the police powers of

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the state. Justice William R. Day, writing for the majority, concluded that the law did constitute a valid use of the federal taxing power. The series of regulations of the drug traffic were closely related and served to make the collection of the taxes more efficient. He argued that Congress had complete discretion in deciding which products to tax and that the Court could not inquire into the motives behind the decision to tax. Chief Justice White dissented, taking the position that the Harrison Act did, in fact, interfere with state police power.

Hepburn Act of 1906 Congress passed the Hepburn Act with the support of Progressive reformers and with strong lobbying in its behalf by President Theodore Roosevelt. The goal of the bill was to increase the strength and effectiveness of the Interstate Commerce Commission (ICC) by eliminating some of the loopholes that had been used by railroad corporations to severely limit its effectiveness since its creation in 1887. The primary focus of the bill was on broadening the ICC’s powers to set railroad rates. As passed, the Hepburn Act gave the Interstate Commerce Commission increased power to regulate the operation of railroads in several categories. Most important was the authority to review and revise rates, actually setting maximum rates on its own authority and enforcing them through its orders. It would no longer have to resort to the courts for enforcement. Railroad corporations could still challenge the rates in court, but the burden of proof now fell on them, rather than on the ICC. The act also expanded the authority of the ICC to include sleeping-car companies, express companies, pipelines, and ferries. Railroads were barred from carrying commodities they had produced themselves, except for their own use. The ICC was authorized to require a uniform system of bookkeeping to make it easier to assemble uniform statistics. The orders of the ICC were to go into effect in a reasonable time and to remain in effect for two years. Despite the extensive authority granted to the ICC by the new act, the true extent of its effectiveness remained to be determined by the courts. Compromises reached in an effort to secure the bill’s passage had granted the courts the power to determine the extent to which they would review ICC orders. If they continued to dig deeply into the facts surrounding the cases, the plaintiffs would have ample opportunity to convince them to overturn restrictive ICC rulings. The potential effectiveness of the provisions of the Hepburn Act was soon settled in two cases that reached the U.S. Supreme Court on appeal. In Illinois Central Railroad Co. v. Interstate Commerce Commission (1907), the Court handed reformers a major victory when it announced that it would no longer investigate the facts of a case heard on appeal. It expanded on this approach in Interstate Commerce Commission v. Illinois Central Railroad Company (1910), and in so doing endorsed the use of executive agencies to regulate business practices

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in specific areas. The Court said that it would henceforth consider only whether the commission had the authority under its enabling legislation to issue the orders and set the policies in question. It would not inquire into the motives behind the commission’s actions. By so ruling, the Court rejected the argument that Congress had unconstitutionally exceeded its authority by delegating rate-making powers to an agency housed in the executive branch. Thenceforth the commission’s rulings would be much harder for businesses to challenge successfully.

Hoover, Herbert Herbert Hoover, the thirty-first president of the United States, made major contributions in developing relief programs during and after World War I, and in devising positive relationships between government and business. Born in Iowa in 1874, Hoover graduated from Stanford University in 1895 and spent the early years of his career working as mining engineer, chiefly for companies that sent him on assignments to Australia and China. He went into business for himself in 1908, specializing in reorganizing mining companies whose finances were in disarray. Within a few years, he became independently wealthy. During the early days of World War I, Hoover gained an international reputation as head of the Commission for Relief in Belgium in 1914, where he was in charge of bringing about increased production of foodstuffs, while at the same time working to limit civilian consumption. Although he was authorized to use force, he preferred to rely on persuasion. He launched a large and highly successful publicity campaign, which came to be known as “Hooverizing” the country. This experience was to stand him in good stead in assisting his own country during its involvement in World War I. In 1917 Congress passed the Lever Act authorizing the Wilson administration to exercise broad authority in mobilizing food products and other supplies in support of the war effort. President Wilson created the Food Administration and named Herbert Hoover to head it. As he had in Belgium, Hoover relied largely on persuasive propaganda efforts to achieve his goals, initiating campaigns to persuade civilians to raise their own vegetables in “liberty gardens,” to observe “meatless days” each week, and generally to conserve food supplies in any way possible. He successfully implemented price controls, primarily through negotiating consent agreements with trade associations. As a result of these successful actions, Hoover achieved a positive reputation as the most highly successful leader in the mobilization effort. During the 1920s Hoover served as secretary of commerce in the administrations of Warren G. Harding and Calvin Coolidge. He envisioned his mission in this role as being one of supporting and assisting in the growth and development of business. Building on relationships he had established during the war, he encouraged the development of what he called “associationalism.” He advocated the creation of trade asso-

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ciations through which businesses could develop methods of cooperating with one another. He put his department at the service of theses associations, holding conferences for them and supplying them with data and statistics that would facilitate their operating more efficiently and profitably. He hoped to alleviate the tendency toward cutthroat competition and to eliminate the need for lawsuits and other confrontational actions by the government in its relations with business. In 1928 Hoover was nominated by the Republicans as their candidate to replace Calvin Coolidge in the White House. Running on a campaign theme of continued prosperity and encouragement of business, he was elected easily. Unfortunately, the continued economic growth and development he had envisioned was cut short by the stock market collapse in October 1929 and the onset of the Great Depression. Struggling to achieve a balance between the tenets of his economic and political philosophies on the one hand, and the drastic action needed to rebuild the country’s economy on the other, Hoover was unable to devise a successful solution. Building on past successes, he held meetings of leaders in business, labor, and agriculture, in which he encouraged them to take action to maintain production, sustain employment, and keep prices up. Still favoring voluntary solutions over direct government intervention, he resisted pressures to provide direct financial relief to the unemployed. As conditions grew more desperate, Hoover proved willing to experiment with funding for government works projects and loans to the states, but his measures proved to be inadequate to the crisis. By the time his presidency ended, Hoover was widely viewed by the public as bearing a large share of responsibility for the severity of the depression. After leaving the White House, Hoover remained active in politics, speaking out on the policies of the New Deal and the role of the United States in World War II. Following the war he was asked to contribute his considerable expertise in helping solve postwar relief problems. He also headed a commission on government reorganization. Hoover died in 1964.

Interstate Commerce Commission The growth and consolidation of railroad lines in the last third of the nineteenth century prompted calls for government regulation. Initially, states created commissions for this purpose, and the U.S. Supreme Court upheld their action, in the absence of federal regulation, in Munn v. Illinois (1877). Less than ten years later, however, the Court became convinced that state efforts to regulate railroads that operated across large areas of the country were not only ineffective but also in violation of the Commerce Clause of the Constitution. This decision in Wabash, St. Louis, and Pacific Railway Co. v. Illinois (1886) prompted calls from Congress to pass legislation providing for federal regulation.

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The Interstate Commerce Act, passed in 1887, represented a compromise that attempted to address the concerns of both consumers and railroad owners. The act created a five-member commission that was charged with responsibility for carrying out the provisions of the act. It was given the power of hearing complaints, examining railroad records, holding hearings, and issuing cease and desist orders. It was not empowered to set rates, either initially or after reviewing existing rates. The act stipulated that all rates must be reasonable and just, although it did not define what “reasonable and just” meant. It prohibited rate-fixing agreements, the creation of pools, the offering of preferential treatment, or engaging in long-haul/short-haul discrimination. The Interstate Commerce Commission (ICC) was the first of a new kind of government agency, in that it possessed types of powers granted by the Constitution to all three branches of the federal government. Because of this, critics charged that such a creature violated the provision for separation of powers. For this and other reasons, railroad companies quickly began to challenge the ICC’s rulings, bringing them on appeal to the U.S. Supreme Court. In the first decade after its creation, the ICC saw its powers severely restricted through a series of Court rulings. In 1896 the Court concluded that nothing in the Interstate Commerce Act gave the commission power to set rates. In 1897 the Court further limited the commission’s authority over rates and also limited its investigatory powers. As a result, those who had initially been hopeful that the ICC would bring order to the complicated and often cutthroat railroad industry began to despair. During the Progressive Era, President Theodore Roosevelt joined forces with reformers to resuscitate the Interstate Commerce Commission. The Hepburn Act passed in 1906 gave the ICC increased authority to review rates and to set new ones. The effectiveness of this power was assured by two Supreme Court rulings in which the justices agreed that they would review ICC rulings only to guarantee that they were in keeping with the provisions of the law—they would not inquire into the motives behind the rulings. Further, the Court said it would no longer reopen cases to review the data on which the ICC’s rulings were based. In other words, the Court would now exercise only limited judicial review in considering cases that challenged ICC rulings. During the White Court period, 1910–1921, the Court continued to follow these guidelines, almost routinely approving the ICC’s decisions. Once the struggle to win judicial acceptance of its actions was achieved, the ICC acted from a very narrow view of its mandate during the ensuing decades. Largely yielding its authority to the wartime agencies created by President Wilson in the period 1917–1920, the ICC had the opportunity to expand its responsibilities beginning in 1920. The Esch-Cummins Transportation Act of 1920 granted the ICC authority to consolidate the nation’s railroads into a series of systems that would maximize efficiency of operation. It was also charged with regulating minimum rates as well as max-

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imum ones. Instead of acting aggressively, however, the ICC during the 1920s, controlled by conservative Wilson and Harding appointees, largely maintained the status quo, allowing the railroads to establish self-governing associations in line with the guidelines of Secretary of Commerce Herbert Hoover’s concept of “associationalism.” The ICC’s authority was further expanded through the passage of the Motor Carrier Act of 1935, giving it power to regulate the trucking industry, and the Transportation Act of 1940, giving it power to regulate water carriers as well. Following World War II the effectiveness of the Interstate Commerce Commission continued to decline. The Transportation Act of 1958 gave it the difficult assignment of both promoting business among the different types of carriers, while also encouraging competition between them. By the 1980s the usefulness of the Interstate Commerce Commission had declined sufficiently that the Office of Management and Budget proposed that it be abolished. It officially ceased to exist at the end of December 1995. Constitutionally, the ICC’s most important contribution had been to establish a precedent as a new type of government regulatory agency, one that possessed sufficient authority and members with the necessary expertise to regulate specific areas of the increasingly complex twentieth-century business world.

Jim Crow Policies The term Jim Crow, derived from antebellum minstrel songs, was applied in the years following Reconstruction to policies of racial segregation adopted throughout the southern states. These policies were designed to preserve the social separation of the races that had prevailed in the South before the Civil War. They were implemented through a variety of procedures and became institutionalized through the actions of courts and legislatures. Closely paralleling the segregation policies was a similar set of regulations designed to deprive African Americans in the South of their political rights. By the 1890s, Jim Crow segregation had been widely adopted throughout the South. It included both de jure policies, which were implemented through the passage of state laws and local ordinances, and de facto segregation, which was based primarily on social custom. Initially opposed by advocates for the rights of the freed slaves, the policies received the imprimatur of the courts in two major cases, the Civil Rights Cases (1883) and Plessy v. Ferguson (1896). The U.S. Supreme Court ruled in the first that the provisions of the Civil Rights Act of 1875 banned only discriminatory actions of states, not those of private citizens, thus effectively depriving the Fourteenth Amendment of much of its usefulness. The Court’s decision in Plessy gave a stamp of approval to the policies of segregation by stating that the fact that separate facilities existed for the different races did not constitute discrimination. Although not

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used in this opinion, the phrase “separate but equal” quickly came to be used as shorthand for the Court’s position on segregation. The series of policies adopted to achieve the disfranchisement of African Americans paralleled those concerning segregation, making the guarantees of the Fifteenth Amendment essentially useless by the end of the century. Southern states adopted laws that, on the surface, seemed not to be discriminatory, since they applied to all voters. However, the effectiveness of the literacy test in preventing voter registration rested not so much with the contents of the test as with the intention of the person who administered it. Most white voters passed, while virtually all African Americans failed. Likewise, the poll tax and the grandfather clause were invoked as needed by white registrars to block potential African American voters. A few formal challenges to Jim Crow policies were filed in the first decade of the twentieth century, but most efforts to fight discrimination were devoted to programs of group solidarity, ethnic pride, and racial uplift. By the time Edward Douglass White assumed leadership of the U.S. Supreme Court in the fall of 1910, Jim Crow policies were solidly entrenched throughout the South, and de facto segregation was in place in many parts of the North. Only a few lawsuits challenged the status quo in the period 1910–1921, but of these, several permitted the Court to make some inroads in restricting the discriminatory treatment of African Americans. The Court improved conditions for black laborers in the South through its ruling in Bailey v. Alabama (1911), when it ruled that the debt peonage system that often bound poor workers to their employers for long periods of time was a violation of the Thirteenth Amendment. In 1915, the Court’s ruling in Guinn and Beal v. United States outlawed permanently the use of the grandfather clause, which prohibited a person from voting if his grandfather had been unable to do so in 1866. The third major case, Buchanan v. Warley (1917), successfully challenged policies of racial segregation in housing, although some of it supporters were disappointed that the case based its ruling on property rights rather than on any outright denouncement of Jim Crow policy. Major inroads on Jim Crow policy eventually came about as the result of a combination of factors. In the 1930s the NAACP decided to focus its efforts on legal challenges to specific policies. Political sensitivity to discrimination increased during and after World War II as a result of the increased migration of African Americans from the South to northern cities where they could exercise their political rights, and because of demands for better treatment by African American veterans returning from the battlefields. The ruling by the U.S. Supreme Court in Brown v. Board of Education (1954) laid the groundwork for the complete dismantling of Jim Crow, and, even though some would say the process is still not entirely complete, the past half century has seen lifechanging progress in that regard.

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Keating-Owen Act of 1916 The Keating-Owen Act was the first federal law passed to regulate the use of child labor in mines and factories. In 1900 one of out of every six children in the United States between the ages of ten and fifteen was employed as a wage earner. Progressive reformers and others launched a campaign to achieve passage of legislation regulating and restricting the use of child workers. The effort was spearheaded initially by the National Child Labor Enforcement Committee, established in 1904 to seek passage and enforcement of child labor legislation. During the first decade of the twentieth century, most states enacted some form of regulation of child labor, but these laws varied both in their provisions and enforcement, since some states, especially those in the South, feared they would be at a disadvantage commercially if they enforced restrictions too rigorously. Reform groups thus turned their efforts toward seeking federal regulation. Several attempts were required to achieve the passage of such a law by Congress. Senator Albert J. Beveridge tried unsuccessfully to secure passage of a law by Congress in 1907. Subsequent creation of a Children’s Bureau within the Department of Labor and the publication of a nineteen-volume federal report on child labor drew increased attention and support to the effort. In 1915 a bill based on the power of Congress to regulate commerce was approved by the house, but failed in the Senate, due in part to lack of support from President Woodrow Wilson, who doubted its constitutionality. The tide seemed to turn, however, during the national political campaign of 1916, when both parties included in their platforms provisions calling for the passage of a federal child labor law. Perhaps partly for this reason, President Wilson swallowed his doubts and threw his support behind the Keating-Owen Child Labor bill, which passed in September 1916. The Keating-Owen Act was based on the Congress’s constitutional authority to regulate interstate commerce. This power had been used to support a broad range of regulatory legislation during the Progressive Era, and the courts had generally upheld such measures. In this case, Congress forbade shipment in interstate commerce of the output of mines that had employed sixteen-year-olds within the past thirty days, and of factories that had employed fourteen-year-olds within the past thirty days. It also banned shipment in interstate commerce of establishments that had employed children between fourteen and sixteen for longer than eight hours per day, or after 7 P.M. or before 6 A.M. The executive committee of Southern Cotton Manufacturers, whose members were among businesses that used child labor most extensively, immediately launched a legal challenge to the law. Judging from recent precedents, most experts predicted that the U.S. Supreme Court would uphold this broad congressional use of the commerce

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power. The nation was stunned at Justice William R. Day’s majority opinion in Hammer v. Dagenhart (1918), in which he resurrected the old distinction between manufacturing and commerce to argue that child labor was local in nature, and therefore could not be regulated under the power to control interstate commerce. Justice Oliver Wendell Holmes Jr. dissented, accusing the majority of basing their decision on their own personal prejudices. Widespread outrage and dismay at the Court’s decision prompted Congress to pass a second federal child labor law within six months of the decision, this time basing its regulation on congressional taxing power. The Court, however, increasingly controlled by conservative members, rejected that law as well, in Bailey v. Drexel Furniture Company (1922), arguing that it interfered with powers reserved to the states under the Tenth Amendment. It would not be until passage of the Fair Labor Standards Act of 1938, and the response of the more liberal Hughes Court that a federal child labor law would secure lasting approval.

Lever Food and Fuel Control Act of 1917 When the United States entered World War I in 1917, Congress took steps to broaden the president’s power to enable him to conduct the war effectively. One of the most dramatic pieces of such legislation, in terms of the extensiveness of its grant of authority, was the Lever Food and Fuel Control Act. Because the careful production and distribution of food and fuel were crucial to the war effort, the president asked Congress to pass this legislation giving him authority to take over and operate mines and factories and to provide for the production, manufacture or processing, and distribution of foods and other commodities. He could regulate commodities exchanges and, in “extreme emergencies,” could impose prices on goods in any industry. The intent was not only to ensure adequate production and usage of food and fuel but also to prevent hoarding and speculation and to eliminate waste. The law also provided that the government would ensure the eventual payment of just compensation for the goods and production affected by the president’s actions. The breadth of the discretionary power granted by the bill prompted serious debate in the Congress, both about its constitutionality and about the wisdom of giving the president so much authority. Not even President Lincoln had exercised as much power during the Civil War. No limits were placed on Wilson’s actions. He could take whatever steps he deemed necessary in controlling the economic production of the country in order to ensure a successful outcome for the war effort. Although the majority of members in both houses of Congress believed the federal government could exercise broad authority in support of wartime mobilization, others expressed concern that the proposed bill violated the Tenth Amendment by usurping powers normally reserved to the states. During the debates, members of both houses proposed

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the creation of a joint congressional oversight committee to review the president’s actions under the legislation. President Wilson responded angrily that this would undermine his exercise of executive authority in the conduct of the war. Ultimately, the bill was passed in August 1917 without the amendment. The authority granted under the Lever Act played a major part in allowing effective mobilization for the war effort. President Wilson created the Food Administration, headed by Herbert Hoover, and the Fuel Administration, headed by Harry A. Garfield, to administer the provisions of the act. Although many people grumbled, most went along with the regulations, and the administration relied largely on persuasion to achieve compliance. A significant number, however, were prosecuted under the terms of Section 4 of the law, which made it unlawful to charge “excessive prices for any necessaries.” Conviction could result in fines of up to $5,000 and/or imprisonment of up to two years. A number of lawsuits challenged the constitutionality of the Lever Act. The U.S. Supreme Court issued its most significant ruling on the subject in United States v. L. Cohen Grocery Company (1921). The plaintiff argued that the Lever Act violated the Fifth and Sixth Amendments because of its vagueness. Its terms made it difficult for a citizen to determine the nature of the accusation against him. It forbade no specific act, and set no specific definition of guilt, in effect leaving these matters to be decided by the courts. Thus Congress had essentially delegated legislative powers to the courts. Chief Justice Edward Douglass White, writing for the majority, agreed. He declared the law unconstitutional, not because of its extensive delegation of power to the executive, but because the Congress had failed to be more specific in describing clearly and in detail the nature and extent of the authority being so delegated. White wrote that the “existence of a state of war did not of its own force suspend or limit the effect of the Constitution” (Cohen, 87). The decision was important because it clarified the Court’s view of delegation of authority during wartime, but it had no effect on the enforcement of the Lever Act itself, since the war was long over by the time the decision was handed down.

Mann Act of 1910 The Mann Act, also known as the White Slave Traffic Act, was passed by Congress as part of its Progressive reform effort in the early twentieth century. In the late 1880s and early 1900s, widespread concern developed in many parts of the United States about the luring of innocent young girls into prostitution. Although the lurid novels and magazine and newspaper stories produced by muckrakers sensationalized the problem as being far greater than it was, the public concern was also fed by worries about immigration, urbanization, and the changing roles of unsupervised young women. Numerous cities established vice commissions, and states passed laws cracking down on

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prostitution, but neither could effectively address the larger problem of the transportation of women across state lines for immoral purposes. The Mann Act, passed by Congress in 1910, was based on the constitutional power to regulate interstate commerce. It punished as a felony the transportation of women in interstate or foreign commerce “for the purpose of prostitution or debauchery, or for any other immoral purpose, or with the intent and purpose to induce, entice, or compel such woman or girl to immoral acts.” Reflecting the concern about the involvement of naive immigrant women in the process, the law also authorized immigration officials to collect information on efforts to persuade foreign women to participate in such activities. The cooperation of the operators of brothels could also be sought by promising immunity from prosecution. The U.S. Supreme Court reviewed the provisions of the Mann Act in two major cases. The constitutional questions raised concerned whether the commerce clause allowed Congress to regulate actions related to moral issues, and, if so, how broadly this authority could be defined. In Hoke v. United States (1913), Justice William McKenna, writing for a unanimous Court, approved congressional regulation of interstate prostitution under the Commerce Clause, saying such activity could not be reached under the authority of the states. He cited as precedents for the banning of specific items from interstate commerce the Court’s rulings concerning obscene materials and lottery tickets. Such action, he said, did not encroach upon the power of the states to regulate morality within their jurisdiction. In Caminetti v. United States (1917), the Court broadened its interpretation of the Mann Act still further, concluding that it could be interpreted to apply even in cases where the woman taken across state lines for immoral purposes was a willing participant in the activity. This decision extended yet further the power of Congress to use its authority under the Commerce Clause to regulate or ban the so-called white slave traffic.

Mann-Elkins Act of 1910 This law, passed with the support of President William Howard Taft, was intended to further augment the powers of the Interstate Commerce Commission (ICC) and to facilitate its work. It included three major provisions. The first empowered the ICC to initiate, without the necessity of a complaint, steps to suspend rates and conduct investigations. The law also extended the authority of the ICC to regulation of telephone and telegraph companies. The third provision, created in part at the behest of congressional conservatives and lobbyists, allowed the Commerce Court to hear appeals of rulings by the ICC. It was hoped that this court would be staffed by men who had some expertise in the railroad business and would be able to streamline the process of appeal, thereby doing away with the frustrating welter of conflicting opinions produced by different federal courts ruling on the same issues.

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The first two provisions of the law were successful in achieving their intended goals, but the Commerce Court proved to be a failure. It was disliked from the outset by many who regarded it as essentially hostile to the ICC. Its ruling were routinely appealed to the U.S. Supreme Court, which undermined its effectiveness by overturning all but two of the twenty-three Commerce Court decisions that it reviewed. Those problems, combined with the impeachment of one of the court’s members, spelled its doom, and it was abolished in October 1913.

Migratory Bird Act of 1918 This law, which seemed only to do with the relatively obscure subject of schedules for hunting migratory birds, provided the opportunity for the Supreme Court to establish a very broad definition of the scope of the treaty-making powers that could be exercised by the U.S. government. In 1916, the United States and Great Britain successfully negotiated a treaty for the protection of wildfowl that migrated annually between the United States and Canada. The treaty called for the establishment of closed hunting seasons on several species of the birds in question. In order to provide for the carrying out of the terms of the treaty, Congress in 1918 passed the federal Migratory Bird Act, which established the required closed seasons to be observed within the United States. The law raised several constitutional questions. It seemed to conflict with the Court’s recent ruling that, in upholding a Virginia state law, had recognized state control over matters concerning migratory birds. Another ruling had deemed a federal law on the subject unconstitutional because it violated the provisions of the Tenth Amendment that were interpreted as giving states control over subjects, including migratory birds, within their boundaries. The landmark case Missouri v. Holland (1920) resulting from the 1918 law was filed by the State of Missouri on similar grounds. It claimed that the provisions of a treaty could not reach matters reserved for the states and that a treaty could not grant to Congress powers not provided for it in the Constitution. Justice Oliver Wendell Holmes Jr., writing for the majority, responded with a very broad interpretation of the treaty powers. He rejected Missouri’s argument, basing the treaty powers on the comprehensive powers the United States possessed as an independent nation. The government, he said, could negotiate treaties on almost any subject deemed important to the country’s existence and well-being. Further, under the Supremacy Clause located in Article VI of the Constitution, treaties took precedence over any powers reserved to the states. This ruling has been referred to repeatedly as a precedent by those arguing in behalf of the federal government’s extensive powers in the conduct of foreign affairs.

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National Association for the Advancement of Colored People The National Association for the Advancement of Colored People (NAACP), the largest civil rights organization in the United States, was formed in the early twentieth century as a result of the combined efforts of progressive reformers and black activists. The call for such an organization was prompted by race riots in Springfield, Illinois, in 1909. White and black reformers held an initial meeting in 1909, and the formal organization was created in 1910. Leading white founders included Oswald Garrison Villard, William English Walling, Mary White Ovington, and Moorfield Storey, who became the group’s first president. Black founders included Mary Church Terrell, Ida B. Wells-Barnett, and W. E. B. Du Bois, who, as editor of the NAACP’s magazine, The Crisis, from 1910 to 1934, became the NAACP’s chief spokesman. During the first decade of its existence, the NAACP became a strong voice in behalf of civil rights in cases before the U.S. Supreme Court, often working in cooperation with its local affiliates. It ultimately aborted its first such attempt, in McCabe v. Atchison, Topeka, and Santa Fe Railway Company (1914), when Moorfield Storey decided that the case brought by the Oklahoma NAACP was not winnable. The group was more successful in its efforts to fight the use of the grandfather clause by filing an amicus brief in support of Guinn and Beal v. United States (1915). The most important civil rights case that the NAACP argued before the White Court was Buchanan v. Warley (1917). Storey threw the resources of the organization behind a test case developed by the local NAACP organization in Louisville, Kentucky. Although he determined that property rights rather than anti–Jim Crow arguments provided the strongest basis for the case, Story hailed the result as a major victory for the civil rights movement. The effects of the Court’s decision in Buchanan were blunted a few years later, however, by the ruling in Corrigan v. Buckley (1926) that residential segregation agreements reached between private citizens could not be regulated or banned under laws governing state action. During its second decade the NAACP directed its efforts to a number of objectives. In 1919 it launched an antilynching campaign by releasing a statistical survey, followed by a conference on the subject. It was unsuccessful in its campaign for passage of an antilynching bill introduced in Congress by Rep. L. C. Dyer of St. Louis, but argued that the attendant publicity was responsible for the subsequent decline in the number of lynchings. In 1930 the NAACP initiated what would become a long-standing practice of stating its position on Supreme Court nominees by opposing and helping to defeat the nomination of John J. Parker, who had been quoted as having voiced anti–civil rights sentiments. In the 1930s the NAACP committed its efforts to the development of a strong legal program intended to fight Jim Crow policies in the courts. It appointed its first full-time legal counsel in 1934, and established the NAACP Legal Defense Fund in

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1939. It was this organization and its attorneys who filed and won most of the major civil rights cases in the next three decades, most notably Brown v. Board of Education (1954). The NAACP earned a large share of the credit for the abandonment of the policies of de jure racial segregation by the end of the 1960s. The legal efforts were complemented by campaigns of support for passage of the Civil Rights Acts of 1964, 1965, and 1968. Since the 1970s the organization has fought against acts of defamation and racial stereotyping and has worked to continually redefine its mission to address the changing needs of the black community.

Progressivism A reform movement that began in the last years of the nineteenth century and reached the climax of its powers during the years immediately preceding World War I, Progressivism was possessed of a number of varied characteristics. It supported a program of economic, social, and political reforms. Adherents advocated government action to regulate business, to implement social reforms, and to revamp government to make it more responsive to the needs of its citizens. The movement was sparked primarily by middle-class urban dwellers who were well educated and socially conscious. It also, however, contained an element of conservatism, as evidenced by the opposition by some to restrictions on business activity, and by the support of others for such social initiatives as immigration restriction. Progressive economic reform focused most strongly on the regulation of big business, including trust-busting, control of railroad operations, and the supervision of the manufacture of consumer products. This initiative was achieved through the passage of legislation such as the Sherman and Clayton Anti-Trust Acts, through the creation of regulatory agencies such as the Interstate Commerce Commission, and through the establishment of guidelines for the processing of food and drug products. It also was aided by strong support from the three presidents most closely associated with the Progressive period, Theodore Roosevelt, William Howard Taft, and Woodrow Wilson. Supreme Court rulings in response to challenges to such efforts generally endeavored to balance the needs of competing groups, while paying attention to the constitutionality of the government’s initiatives. Endeavors to improve working conditions for laborers and to implement social reforms to benefit those in need of assistance came under the heading of state and federal police power—legislation to protect the health, safety, and welfare of the citizenry. A number of government reforms in this area came as a result of exposés produced by so-called muckrakers, investigative journalists who published articles on such varied topics as child labor, insurance fraud, and the hazardous ingredients used in patent medicines. Most labor legislation in the period was passed by states, which implemented restrictions on child labor, restricted working hours for women and

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those in hazardous occupations, and in some cases protected the legal rights of organized labor. Laws to benefit health and welfare of individuals included the Meat Packing Act and the Pure Food and Drug Act, both passed in 1906, and the Mann Act of 1910, cracking down on prostitution rings. Progressives also endeavored to reach some of their goals in this area by seeking passage of constitutional amendments securing women’s suffrage and mandating prohibition. Constitutional challenges to such laws were almost uniformly upheld, with a few rare exceptions, such as the Court’s rejection of the Keating-Owen Child Labor Act in Hammer v. Dagenhart (1918). Many Progressives believed the key to achieving the reforms needed to improve all aspects of life in the United States in the early twentieth century was the reform of government to make it more honest, more efficient, and more responsive to the needs of the people. Among the initiatives undertaken in this area were attempts to overthrow city political machines, the passage of the Seventeenth Amendment authorizing direct election of senators, and the development by the U.S. Supreme Court of the doctrine of administrative discretion, which allowed the creation of specialized government agencies to deal with specific issues. Progressivism did not achieve all its goals, and, in fact, found that some of them were strongly opposed by people who believed them harmful or counterproductive. Overall, however, many aspects of the Progressive reform movement made significant contributions to the nation’s successful endeavor to move into the more modern, industrialized twentieth century.

Pure Food and Drug Act of 1906 Passage of this law was prompted by the campaigns of Progressive reformers, acting in response to exposés that had been produced by muckraking journalists who revealed both the appalling conditions under which items of food and drugs were produced and the false and misleading claims by which they were marketed. Most states had some kind of regulatory laws, but provisions were inconsistent from one state to another, and the states had no power to regulate goods that were marketed in interstate commerce. The Pure Food and Drug Act was passed in conjunction with the Meat Packing Act and was based on research done by Dr. Harvey Wiley, a chemist in the Department of Agriculture. Among the groups who lobbied for the law were the National Consumers League, the American Medical Association, and the General Federation of Women’s Clubs. Its passage was opposed by, among others, the National Food Manufacturers’ Association and the National Wholesale Liquor Dealers Association. Southern Democrats in Congress also opposed the bill on the grounds that the Commerce Clause did not cover such regulation. In spite of the objections, the bill passed both houses of Congress by overwhelming majorities.

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The Pure Food and Drug Act was regarded as a major advance by reformers who advocated the exercise of federal police power to regulate for the health, safety, and well-being of the nation’s citizens. It placed restrictions on the manufacture of prepared foods and drugs and prohibited the “misbranding” of any such items or their “adulteration” by the addition of any ingredient not listed on the label. It also forbade the transportation in interstate commerce of any such adulterated or misbranded foods, drugs, or liquors. Enforcement of this law required the creation of a new type of federal bureaucracy, since it required the deployment of a force of inspectors in the field. Predictably, the provisions of this innovative piece of legislation were the subjects of a series of legal challenges. In the most significant, Hipolite Egg Co. v. United States (1911), Justice William McKenna upheld the law for a unanimous Court. He rejected the contention that the Commerce Clause was not applicable, writing that it was “subject to no limitations except those found in the Constitution” (Hipolite, 57). In a second case the same year, however, Justice Oliver Wendell Holmes Jr. produced a decision that limited the reach of the act. In United States v. Johnson (1911), Holmes interpreted the law narrowly to prohibit misbranding, but not promotion of sales through misleading advertising. He argued that misbranding included only the failure to accurately list the chemical contents of a drug on its label. Under this interpretation, patent medicines whose labels claimed they could cure cancer did not violate the law. Congress responded immediately to this ruling by amending the law to ban false labeling of any type. Justice Charles Evans Hughes sustained this amendment in his decision in Seven Cases of Eckman’s Alternative v. United States (1916). The Pure Food and Drug Act has been revised repeatedly in the intervening years, as for example, in 1938 when its coverage was broadened to prohibit false or misleading advertising.

Red Scare A series of developments in the months following the end of World War I aroused fears of Communist-inspired radical activity in the United States. Spurred by news of the Bolshevik Revolution that had recently occurred in the Soviet Union, Americans greeted reports of domestic violence and unrest with fear. The height of the activity occurred in 1919. More than 2,665 strikes occurred that year, involving more than four million workers. Seattle Mayor Ole Hansen referred to strikers in his city as Bolsheviks. Steel workers struck for four months, and Massachusetts governor Calvin Coolidge took action to end a police strike in Boston. During the same period more than forty bombs addressed to prominent citizens were discovered in the mail in eight cities, some of them causing death and destruction. Attorney General A. Mitchell Palmer acted boldly in response to these perceived threats to peace and stability. He created the General Intelligence Division of the Justice

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Department to collect files on radicals, naming J. Edgar Hoover to head it. He instituted a series of raids to arrest and deport radical aliens, of whom some 249 were forced to leave the country in the fall of 1919. In the early months of 1920, between 4,000 and 6,000 other suspected radicals were rounded up, many without warrants, to be held for extended periods without being charged. Palmer also lobbied for Congress to pass a peacetime sedition law, similar to that which had been in place during the war. A combination of the gradual return to peacetime conditions and general disgust at the overreaching actions of Palmer and his staff brought a lessening of concerns by the spring of 1920 about the threats posed by radicals and Communists. The Supreme Court used its ruling in Silverthorne Lumber Co. v. United States (1920) as an occasion to voice, in an opinion broadening the application of the exclusionary rule, its own concerns with the excesses of the Red Scare. Congress ultimately refused to pass the peacetime sedition law. Concern about the possible long-range implications of the events of the Red Scare, as well as distress at the Court’s rulings in the wartime sedition cases, prompted the founding in 1920 of the American Civil Liberties Union as an institution intended to focus on protection of civil liberties.

Roosevelt, Theodore Theodore Roosevelt was born in 1858 to a wealthy and aristocratic New York family. As a child he struggled to overcome physical maladies, eventually developing into an outdoorsman and physical fitness enthusiast. He graduated from Harvard in 1880 and read law before beginning a career in politics. He served in the New York State Assembly, as a member of the U.S. Civil Service Commission, and as a member of the New York City Board of Police Commissioners. He was named assistant secretary of the Navy by President William McKinley, but resigned that post to join the army when the Spanish-American War began. When Roosevelt returned from the war, he made himself into a national hero by publicizing his military exploits in a best-selling book entitled The Rough Riders. In part because of his stature as a war hero, he was nominated for vice president on the Republican ticket in 1900. After winning the election, he found himself abruptly elevated to the presidency a few months later as a result of the assassination of President William McKinley. Roosevelt completed McKinley’s term and was elected to a term in his own right in 1904. He sought the presidency two more times, losing in a three-way race as the candidate of the Progressive, or “Bull Moose,” Party in 1912, and being defeated for the Republican nomination in 1916 by fellow New Yorker Charles Evans Hughes. As chief executive, Roosevelt espoused the “stewardship theory of the presidency.” He argued that anything that concerned the health, safety, and welfare of the American people should also be of concern to the president. He also contended that

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the president could do anything that was not specifically forbidden to him by the Constitution. This philosophy served as the basis for Roosevelt’s activist administration, both in foreign policy and in his advocacy of domestic reforms. Building upon the country’s successful resolution of the Spanish-American War, Roosevelt advocated a strong role for the United States in foreign affairs. He supported the Open Door Policy as the key to U.S. relations with China and sponsored a conference in 1905 that brought about the resolution of the Russo-Japanese War. In 1907 he sent the recently expanded and modernized navy, known as the “Great White Fleet,” on a world tour to demonstrate American military might. He engineered negotiations that secured access to territory in Panama that made possible the construction of the Panama Canal, which began operation in 1914. Because of concerns about the stability of a number of countries in the Caribbean area, he coined the Roosevelt corollary, which sought to justify repeated U.S. financial and military interventions in the area. In his pursuit of domestic reforms, Roosevelt has been described as a moderate Progressive. He had strong opinions about the changes that needed to be made, but he was willing to compromise to achieve at least some of his goals when all of them proved to be unattainable. Roosevelt pushed for federal regulation of big business, seeking to eradicate the most ruthless of the major trusts, while seeking legislation to regulate others. His support was crucial in the prosecution of the Northern Securities Company in the first major trust-busting case in 1904. In all, his administration brought about twenty-five antitrust suits. In efforts to control the operation of major railroad lines and to strengthen the Interstate Commerce Commission, he supported passage of the Elkins and Hepburn Acts. As an advocate of the use of federal police power to legislate for the health, safety, and welfare of citizens, Roosevelt threw his support behind such pieces of consumer legislation as the Pure Food and Drug Act and the Meat Packing Act. As a strong supporter of conservation, Roosevelt was the first president to use his influence to create national parks, national forests, and other federal preserves to protect vital natural resources. Roosevelt had something of a love-hate relationship with the judiciary. He nominated two justices, Oliver Wendell Holmes Jr. and William R. Day, to the U.S. Supreme Court, but was frustrated when they did not always rule the way he had hoped. Angered by decisions by both the U.S. Supreme Court and lower courts, Roosevelt in his later career unsuccessfully campaigned for initiatives that would have authorized recall of both judges and their decisions. He also supported in 1912 a Colorado referendum that would have allowed voters to have the final say on laws that the courts ruled unconstitutional. After failing to win a third term in 1912, Roosevelt continued to be outspoken about government actions. He urged President Wilson to go to war immediately upon the onset of hostilities in 1914. He challenged Charles Evans Hughes for the Republican

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presidential nomination in 1916 and expressed his opinions about the war effort and other matters until his death in 1919.

Sedition Act of 1918 The Sedition Act was actually an amendment to the Espionage Act of 1917 (see entry in this chapter), which broadened the powers of the government for curbing any form of antiwar activity. It was passed at the urging of western senators and modeled after the Montana statute drafted to curb the activities of the radical Industrial Workers of the World. It was also supported by military leaders and a variety of citizens concerned about the activities of antiwar activists, including pacifists, and self-styled “Bolsheviks.” The law made it a crime to “disrupt or discourage recruiting or enlistment service, or utter, print or publish disloyal, profane, scurrilous or abusive language about the form of government, the Constitution, soldiers and sailors, flag or uniform of the armed forces, or by word or act support or favor the cause of the German Empire or its allies in the present war, or by word or act oppose the cause of the United States.” This broad, catch-all addition to the Espionage Act was first upheld by the U.S. Supreme Court in 1919 in Abrams v. United States. Writing for the majority, and building upon the Court’s earlier decisions in a series of cases brought under the Espionage Act of 1917, Justice John H. Clarke upheld the statute and the conviction of a group of Russians who had published a pamphlet critical of U.S. response to the Russian Revolution by sending an expeditionary force to support the opposition. Justice Oliver Wendell Holmes Jr., joined by Justice Louis D. Brandeis, produced a dissent in which he backed away from his previous contention that wartime circumstances warranted restrictions on First Amendment rights. He argued that the government should use discretion in deciding when to prosecute speech critical of its policies. The “surreptitious publishing of a silly leaflet by an unknown man,” he said, posed no danger of any consequence to the government’s efforts (Abrams, 628). This dissent is frequently cited as the origin of the Court’s subsequent increasing emphasis on the importance of protecting free speech as a basis for fostering and strengthening democracy.

Selective Service Act Soon after declaring war on Germany in the spring of 1917, Congress decided to pass the first conscription act since the Civil War. The law was based on the war powers and on the constitutional powers given Congress to raise and support armies. Supporters argued that the draft would make it possible to assemble the required soldiers rapidly and would spread the burden more fairly across society than would simple reliance on volunteers. Enacted on May 18, 1917, the Selective Service Act required all men ages twenty-one to thirty (later eighteen to forty-five) to register for the draft.

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Those who complied were divided into five classes. The first, able-bodied unmarried men without dependents, ultimately provided all of the 2.8 million men drafted for service in World War I. The law also recognized for the first time in American history the existence of a class of conscientious objectors. Only members of the so-called peace churches could qualify, and all were required to serve in non-arms-bearing positions in the military. In part as a result of the active opposition to U.S. involvement in World War I, and in part out of simple hostility to the use of a draft, a series of lawsuits were filed challenging the Selective Service Act. The most important of these were decided early in 1918 as the Selective Draft Law Cases. As most people expected, the Court unanimously supported the draft. Writing for the Court, Chief Justice White noted the constitutional powers of Congress in this regard and rejected the contention that the draft was a violation of the Thirteenth Amendment’s prohibition of involuntary servitude. A short time later, the Court expanded its support for the executive power in this area by rejecting a claim in Cox v. Wood (1918) that men inducted as result of the draft could not be forced to do their military service abroad.

Sherman Anti-Trust Act of 1890 The growth of business and industry in the late nineteenth-century United States and the consequent establishment of various kinds of combinations and monopolies prompted calls from many sides for some sort of federal regulation. Consumers and small businesses wanted relief from the ruthless business practices that often resulted in high prices or restrictive sales policies. Some owners of the large corporations wanted the government to regulate or ban the cutthroat competition they were forced to participate in. Some members of Congress agreed with the calls for reform, while others supported legislation because it was the politically smart thing to do. The result was the passage of the Sherman Anti-Trust Act of 1890, the most important piece of antitrust legislation in U.S. history. Perhaps because of the need for compromise between the contending groups, or perhaps because Congress itself was not sure what it needed to do, the terms of the law were frustratingly vague. The first section banned every “contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce.” These terms were not specifically defined, so it was left largely to the courts to determine what they meant. Section 2 of the law banned monopolies and other forms of singlebusiness conduct that resulted in restrictions on commerce. The law provided criminal penalties for the violation of the provisions and permitted the filing of suits by federal or state governments, or by individuals. A series of landmark lawsuits gave the Supreme Court the opportunity to express its views about the meaning and application of the Sherman Act. In the first

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such suit, United States v. E. C. Knight Company (1895), the Court greatly restricted the law’s application by ruling that it applied only to “direct” commerce, that is trade, and not to “indirect” commerce, or manufacturing. This meant that most of the major business enterprises in the United States were not covered by the terms of the Sherman Act. Reformers and others who felt strongly about the need for federal regulation of business were not willing to accept this result, however, and by the early 1900s additional suits gave the Court the opportunity to revise its interpretation. In Northern Securities Co. v. United States (1904), the Court issued its first major trust-busting opinion, finding the railroad conglomerate in violation of the Sherman Act and requiring its dismantlement. A year later in Swift and Co. v. United States (1905), the Court first bridged the gap between manufacture and commerce by developing the “stream of commerce” doctrine, ruling that businesses whose products traveled in interstate commerce fell under the provisions of the Sherman Act. This decision paved the way for more than eighty trust-busting suits during the Taft administration alone. The second decade of the twentieth century saw some fine-tuning of the application and provisions of the Sherman Act. Lessening of the strictness with which the Sherman Act was being applied came as a result of the Court’s decision in Standard Oil Co. v. United States (1911), in which the Court applied the “rule of reason,” arguing that not every form of restriction constituted restraint of trade. This provided a loophole that many businesses would now use to successfully combat prosecution. Congress in 1914, at the behest of President Woodrow Wilson, passed the Clayton AntiTrust Act, whose main purpose was to define more precisely the actions that constituted restraint of trade and to make application of the Sherman Act more effective. One of the largely unforeseen impacts of the Sherman Act was its use as a device to restrict the activities of labor unions. During the Pullman strike of 1894, the Cleveland administration successfully sought a federal court injunction to halt a secondary boycott invoked by the American Railway Union in support of striking factory workers at the Pullman factory near Chicago. The U.S. Supreme Court ruled in In re Debs (1895) that such use of the act was acceptable, and the Sherman Act–based injunction quickly became a favorite device of industrialists seeking to crack down on striking workers. Labor leaders succeeded in having incorporated into the Clayton Act a provision specifically banning the use of antitrust laws as a basis for such injunctions, but the Supreme Court destroyed this potential protection by ruling in Duplex Printing Co. v. Deering (1921) that the provision applied only to the immediate parties to a dispute, and could not be used to protect those engaging in a secondary boycott. The Sherman Act continued throughout the twentieth century to be the primary basis for federal regulation of business combinations. In recent decades decisions in which it has been interpreted have allowed for more collaboration among businesses and have focused on punishing only the most egregious cases of restraint of trade.

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Taft, William Howard William Howard Taft was the twenty-seventh president of the United States and the tenth chief justice. Born in 1857 into a well-known Ohio political family, Taft graduated from Yale University in 1878, then studied law at the University of Cincinnati. He practiced law for a short time before being appointed an Ohio Superior Court judge in 1887. He was appointed to the first of a series of federal positions by President Benjamin Harrison, who named him solicitor general in 1889. In 1892 Harrison named him to the Sixth Federal Circuit, where he served for eight years. After the Spanish-American War, President William McKinley dispatched Taft to the Philippines, where he served first as chair of the Philippine Commission, then as the civil governor of the islands. During the period he was in the Philippines, Taft declined two offers of appointment to the U.S. Supreme Court. Taft’s career in the executive branch began when his friend Theodore Roosevelt named him secretary of war in 1904. When Roosevelt decided not to seek another term in 1908, he endorsed Taft as his heir apparent. The relationship between the two soured, however, when Taft did not follow Roosevelt’s lead in his actions on some major issues. The rift was made irreparable by Roosevelt’s politicking behind Taft’s back and culminated in the split of the Republican Party in 1912, with Roosevelt leading his supporters to support the splinter Progressive Party, whose nomination for president he accepted. Both men were defeated in the election by Democratic newcomer Woodrow Wilson. Taft is considered by most historians to have been a less effective president than either Roosevelt or Wilson, but he did complete a respectable list of accomplishments during his four years in office. Focusing more on antitrust litigation than on the negotiation of consent agreements, the Taft administration initiated eighty antitrust suits compared with Roosevelt’s twenty-five. Taft was the first president to have bills drafted and sent to Congress for passage. He campaigned for passage of the MannElkins Act to strengthen the Interstate Commerce Commission, supported creation of the Bureau of Mines and the Children’s Bureau, and encouraged the passage and ratification of the Sixteenth and Seventeenth Amendments. At the same time, however, perception of his effectiveness was damaged by his failure to secure passage of a strong tariff reform measure and by his allowing a scandal to develop over the handling of the conservation program by his secretary of the interior in the PinchotBallinger affair. Taft wielded strong influence over the Supreme Court during his term as president. He was able to appoint six justices, more than any other single-term president. His choices were influenced by a number of factors, including friendship and political considerations. Some of his appointees proved relatively ineffectual, such as Horace Lurton, the oldest man to have been appointed to the Court up to that time, and Willis

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Van Devanter, whose productivity during his twenty-seven years on the Court was hindered by a severe writing block. Taft’s nomination of Edward Douglass White to be chief justice marked the first time an associate justice had been elevated to the Court’s leadership position. White generally fulfilled Taft’s hope that he was appointing a man with strong administrative skills to bring order to the Court’s work. After leaving the White House, Taft taught at Yale Law School from 1913 to 1921 and remained active in Republican politics behind the scenes, including voicing his opinion of Wilson’s Supreme Court nominees, particularly his opposition to Louis D. Brandeis. During World War I Taft served on the National War Labor Board and advocated the creation of a world parliament by serving as a member of the League to Enforce Peace. He strongly supported Warren G. Harding, the Republican nominee for president in the election of 1920. In 1921 Taft achieved his strongest lifelong ambition when he was nominated to be chief justice of the U.S. Supreme Court. He served in that position from 1921 to 1930, becoming one of the stronger leaders in the Court’s history. Taft took steps to modernize the Court by advocating the passage of the Judiciary Act of 1925. He worked behind the scenes to influence the selection of like-minded justices by the Republican presidents during the decade. He used the position to encourage unanimity among the justices in deciding cases that supported a strong laissez-faire business philosophy, but he also favored a broad interpretation of the commerce power. Taft resigned from the Court in 1930 and died soon after.

Volstead Act of 1919 This law was passed in October 1919 to establish the federal legal structure for enforcing the Eighteenth Amendment when it went into effect on January 16, 1920. It also included a provision intended to clarify a controversial portion of the Wartime Prohibition Act by specifying exactly what constituted an “intoxicating” beverage. The Volstead Act defined the term as referring to beer, wine, or distilled liquor with an alcohol content of more than 0.5 percent by volume. President Wilson vetoed the measure on the grounds that it was unconstitutional because it included both exercise of war powers and enabling provisions for a constitutional amendment. Congress subsequently overrode the veto. Brought by brewers and distillers who hoped to derail the enforcement of prohibition by any means possible, a number of lawsuits asked the Supreme Court to rule on the constitutionality of various portions of the Volstead Act. In one of the key cases, Rupert v. Caffey (1920), the Court dealt with several challenges to the Volstead Act. Justice Louis D. Brandeis, writing for a unanimous Court, approved the establishment of the 0.5 percent limit on alcohol content as a corollary to the Wartime Prohibition Act. He asserted that Congress had the authority to establish a definitive limit, and the

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Court would inquire neither into the way the limit was set, nor the reasons behind it. The establishment of a defined limit was necessary for effective enforcement of prohibition. In the National Prohibition Cases (1920) a few months later, Justice Willis Van Devanter upheld the power of Congress to pass the Volstead Act.

Wartime Prohibition Act Congress passed the Wartime Prohibition Act on November 21, 1918. Its purpose was to conserve labor and resources for wartime production. It barred the sale of distilled liquors, except for export, or their removal from bond, from June 30, 1919, until the war was over and demobilization completed. It also prohibited from May 1, 1919, to the end of demobilization, the use of foodstuffs in the production of alcoholic beverages. The date of the end of the war and demobilization was to be determined by the issuance of a presidential proclamation. After owners of breweries claimed the law did not preclude the manufacture and sale of beer and other malt beverages because they were not intoxicating, Congress included in the Volstead Act, passed on October 28, 1919, a provision defining the intoxicating liquors affected by the Wartime Prohibition Law as being those containing more that 0.5 percent alcohol by volume. A number of lawsuits brought by distilleries challenging the constitutionality of the Wartime Prohibition Act reached the Supreme Court. Some contended that the law was not a justifiable exercise of war power, because the war had already ended before it was enacted. Others argued that banning the sale of the liquors constituted a taking of property without just compensation. A third argument said that Congress should not have passed the act because it interfered with the prohibition legislation that had already been passed. The Court responded to these challenges in Rupert v. Caffey (1920), with Justice Louis D. Brandeis writing the unanimous opinion. Brandeis said that the war power did not end automatically when the armistice was signed. Its use was still warranted until the official peace treaty was signed and demobilization completed. Congress must have broad discretion in conducting the country’s affairs during the interim. He said that the act did not constitute taking of property without compensation because it did not actually deprive the distilleries of ownership. It only restricted their access to their property for a period of time. Brandeis also concluded that the passage of the Eighteenth Amendment did not conflict with the passage of the Wartime Prohibition Act.

Webb-Kenyon Act of 1913 The passage of this act represented a major step forward in the campaign of the AntiSaloon League and other prohibition groups to achieve a nationwide ban on the

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manufacture, transportation, and sale of alcoholic beverages. The movement, which had been gaining in strength since the 1890s, had begun by lobbying for the passage of state prohibition laws. In 1900, five states had statewide prohibition laws, and that number would increase to nineteen by 1916. The reformers realized early on, however, that there were major problems with trying to achieve their goal on a state-bystate basis because of the transport of alcoholic beverages across state lines, from states that allowed alcohol to those that did not. Many saw a federal constitutional amendment as the ultimate solution, but realized that that goal might have to be reached in a series of steps. The Webb-Kenyon Act was the prohibitionists’ first major achievement at the national level. It prohibited the shipment in interstate commerce of alcohol being sent to a state that had a prohibition law in place. It did allow shipment for personal use, where state law permitted. The law was unusual in that Congress assumed that enforcement would be carried out by the states. The intent was simply to use federal legislation to assist in the achievement of state goals. President William Howard Taft vetoed the bill, arguing that it violated the original package doctrine, which allowed no state control as long as the shipment in question was in its original form in interstate commerce. Congress overrode the veto, and the bill became law. The constitutionality of the novel use of the commerce power in the WebbKenyon Act was challenged in a lawsuit that took issue with the sharing of authority between state and federal governments. Chief Justice Edward Douglass White wrote the Court’s opinion in Clark Distilling Company v. Maryland Railway (1917). He concluded that, since Congress had the power to regulate interstate commerce, they also had the authority to decide that the federal and state governments might work together in enforcing laws such as this. Congress was not giving up its power over interstate commerce, but merely acting in cooperation with the states. Members of Congress who were not comfortable with the sharing of responsibility between federal and state authorities attempted to resolve the problem by passing the Reed Amendment to an appropriations bill in 1917. The amendment banned shipment of alcohol into a state with prohibition laws, even if the state law contained some loopholes that allowed entry of alcohol for a few specific purposes. The Supreme Court subsequently upheld the Reed Amendment in United States v. Hill (1919), writing that the power to regulate interstate commerce included the power to invoke a complete ban on movement of certain goods, as well.

Wickersham, George W. George W. Wickersham was a prominent attorney and politician who served as attorney general in the administration of President William Howard Taft. Wickersham built a successful career as a corporate attorney in New York City before being named to

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head the Justice Department. While serving in this capacity from 1909 to 1913, he supervised the most active program of trust-busting in U.S. history. In negotiating the restructuring called for by the Supreme Court’s decision in United States v. American Tobacco Company (1911), he devised a system of consent agreements that would end the trust but not destroy the company. He sought to achieve a middle ground that solved the problems inherent in trusts, but would create a process that made many lawsuits unnecessary. In so doing, he came into conflict with future Supreme Court Justice James C. McReynolds, who had prosecuted the case and wanted to see the American Tobacco Company demolished. Wickersham also played a role in influencing a number of appointments to the U.S. Supreme Court. President Taft consulted him when he wanted to appoint his old friend Horace Lurton, but was concerned about Lurton’s age. Wickersham stressed the need for revitalizing the Court with younger members, but Taft named Lurton, anyway. When Taft was considering whom to nominate as chief justice in 1910, he sent Wickersham to poll the members of the Court. He reported that justices were very much in favor of Edward Douglass White, who was Taft’s choice. When President Wilson nominated Louis D. Brandeis to the Court in 1916, Wickersham was one of the most outspoken opponents of the choice. Working with the support and advice of former President Taft, Wickersham organized the drafting of a letter opposing Brandeis that was signed by six former presidents of the American Bar Association and sent to the Senate Judiciary Committee. Wickersham is perhaps best known for his work as head of the National Commission on Law Observance and Enforcement, a position to which President Herbert Hoover named him in 1929. The commission produced a report in 1931 that concluded the federal system for enforcement of criminal law needed to be revamped. It also reported, but without Wickersham’s endorsement, that the Eighteenth Amendment needed to be revised to provide for better enforcement of prohibition.

Wilson, Woodrow Wilson was the twenty-eighth president of the United States, serving from 1913 to 1921. He was the first southerner to be elected to the presidency since the Civil War and only the second Democrat. Born in Virginia, Wilson was educated at Davidson University in North Carolina and at Princeton University in New Jersey. He studied law at the University of Virginia and practiced briefly in Atlanta before returning to school to earn a Ph.D. in political science from Johns Hopkins University in 1886. Wilson taught at Princeton from 1886 to 1902, developing the field of public administration and publishing several books on topics in government. He became the president of Princeton University in 1902. Wilson’s success as a university administrator prompted Progressive reformers

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to recruit him to run for governor of New Jersey in 1910. He won, and was sufficiently successful in the post that Democrats drafted him as their presidential candidate in 1912. He won the election in a race that pitted him against republican incumbent William Howard Taft, Progressive Party nominee Theodore Roosevelt, and Socialist candidate Eugene V. Debs. Reelected in 1916, Wilson led the country through a period of dramatic growth and development at home, as well as through its first world war. As president, Wilson determined to build upon Theodore Roosevelt’s record of strengthening the role of the chief executive in the federal government. He became the first president since John Adams to address a joint session of Congress. He proposed legislation, presented his plans to Congress, and lobbied for the passage of bills he considered important. In his first two years of office, he saw through the Congress several crucial pieces of progressive reform legislation, including the Underwood-Simmons Tariff, the Federal Reserve Act, and the Clayton Anti-Trust Act. Throughout his presidency he was outspoken in advocating legislation he considered important, including bills on such diverse topics as child labor, women’s suffrage, prohibition, and mobilization in behalf of the war effort. Although possessed of almost no foreign policy experience upon assuming the presidency, Wilson espoused certain basic goals. He was both an idealist and an internationalist. He advocated a strong role for the United States in international affairs, seeing it as the responsibility of the United States to intervene where necessary in behalf of democracy in general, and of its own interest in particular. Such activism earned the United States the ill will of some neighbors in the Western Hemisphere because of its intervention in Mexico, Haiti, and the Dominican Republic. When World War I began in the summer of 1914, Wilson announced that U.S. policy would be one of strict neutrality, a position he expected to be respected by all the belligerents. He was to find this easier said than done. During World War I, Wilson juggled domestic politics and international affairs. He endeavored to protect American lives and business interests without going to war, but was ultimately unsuccessful in doing so. When German depredations against American interests increased early in 1917, he called for a declaration of war. He spearheaded the process of mobilization for prosecution of the war effort, wielding, with the approval of Congress, more power than any previous president, including the conduct of a military draft, the allocation of food and industrial resources, and assumption of control of the means of transportation and communication. At the same time, Wilson unsuccessfully pursued a peaceful settlement to the war, announcing in January 1918 his Fourteen Points, which he hoped would guide eventual postwar negotiations. When the war ended in November 1918, Wilson determined to travel to France to participate in the drafting of the Treaty of Versailles. Although he was frustrated that many of his suggestions for the treaty were ignored or rejected, Wilson did succeed in

Key People, Laws, and Events

having included his proposal for an international peacekeeping organization to be known as the League of Nations. Ironically, it was this point that proved to be the most objectionable to the U.S. Senate when Wilson presented the treaty for ratification. Compromise between Wilson and the Republican-led Senate proved to be impossible, with a resolution of the disagreement made even more difficult by Wilson’s suffering an incapacitating stroke in the fall of 1919. Wilson had significantly enlarged the power and influence of the presidency, both through achievement of his Progressive reform measures and with U.S. participation in achieving a successful outcome to the war, but he finished his political career without being able to achieve U.S. approval of the plan that he had hoped would make war a thing of the past.

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Standard Oil Company of New Jersey v. United States, 221 U.S. 1 (1910) Mr. Chief Justice WHITE delivered the opinion of the Court. On the one hand, with relentless pertinacity and minuteness of analysis, it is insisted that the facts establish that the assailed combination took its birth in a purpose to unlawfully acquire wealth by oppressing the public and destroying the just rights of others, and that its entire career exemplifies an inexorable carrying out of such wrongful intents, since, it is asserted, the pathway of the combination from the beginning to the time of the filing of the bill is marked with constant proofs of wrong inflicted upon the public, and is strewn with the wrecks resulting from crushing out, without regard to law, the individual rights of others. Indeed, so conclusive, it is urged, is the proof on these subjects, that it is asserted that the existence of the principal corporate defendant, the Standard Oil Company of New Jersey, with the vast accumulation of property which it owns or controls, because of its infinite potency for harm and the dangerous example which its continued existence affords, is an open and enduring menace to all freedom of trade, and is a byword and reproach to modern economic methods. On the other hand, in a powerful analysis of the facts, it is insisted that they demonstrate that the origin and development of the vast business which the defendants control was but the result of lawful competitive methods, guided by economic genius of the highest order, sustained by courage, by a keen insight into commercial situations, resulting in the acquisition of great wealth, but at the same time serving to stimulate and increase production, to widely extend the distribution of the products of petroleum at a cost largely below that which would have otherwise prevailed, thus proving to be at one and the same time a benefaction to the general public as well as of enormous advantage to individuals. It is not denied that in the enormous volume of proof contained in the record in the period of almost a lifetime, to which that proof is addressed, there may be found acts of wrongdoing, but the insistence is that they were rather the exception than the rule, and in most cases were either the result of too great individual zeal in the keen rivalries of business, or of the methods and habits of deal-

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ing which, even if wrong, were commonly practiced at the time. And to discover and state the truth concerning these contentions both arguments call for the analysis and weighing, as we have said at the outset, of a jungle of conflicting testimony covering a period of forty years, a duty difficult to rightly perform, and, even if satisfactorily accomplished, almost impossible to state with any reasonable regard to brevity. Duly appreciating the situation just stated, it is certain that only one point of concord between the parties is discernible, which is, that the controversy in every aspect is controlled by a correct conception of the meaning of the 1st and 2d sections of the anti-trust act. We shall therefore, departing from what otherwise would be the natural order of analysis, make this one point of harmony the initial basis of our examination of the contentions, relying upon the conception that by doing so some harmonious resonance may result adequate to dominate and control the discord with which the case abounds. That is to say, we shall first come to consider the meaning of the 1st and 2d sections of the anti-trust act by the text, and after discerning what by that process appears to be its true meaning, we shall proceed to consider the respective contentions of the parties concerning the act, the strength or weakness of those contentions, as well as the accuracy of the meaning of the act as deduced from the text in the light of the prior decisions of this Court concerning it. When we have done this, we shall then approach the facts. In substance, the propositions urged by the government are reducible to this: That the language of the statute embraces every contract, combination, etc., in restraint of trade, and hence its text leaves no room for the exercise of judgment, but simply imposes the plain duty of applying its prohibitions to every case within its literal language. The error involved lies in assuming the matter to be decided. This is true, because, as the acts which may come under the classes stated in the 1st section and the restraint of trade to which that section applies are not specifically enumerated or defined, it is obvious that judgment must in every case be called into play in order to determine whether a particular act is embraced within the statutory classes, and whether, if the act is within such classes, its nature or effect causes it to be a restraint of trade within the intendment of the act. To hold to the contrary would require the conclusion either that every contract, act, or combination of any kind or nature, whether it operated a restraint on trade or not, was within the statute, and thus the statute would be destructive of all right to contract or agree or combine in any respect whatever as to subjects embraced in interstate trade or commerce; or, if this conclusion were not reached, then the contention would require it to be held that, as the statute did not define the things to which it related, and excluded resort to the only means by which the acts to which it relates could be ascertained, the light of reason, the enforcement of the statute was impossible because of its uncertainty. The merely generic enumeration which the statute makes of the acts to which it refers, and the absence of any definition of restraint of trade as used in the statute, leaves room for but one conclusion, which

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is, that it was expressly designed not to unduly limit the application of the act by precise definition, but, while clearly fixing a standard, that is, by defining the ulterior boundaries which could not be transgressed with impunity, to leave it to be determined by the light of reason, guided by the principles of law and the duty to apply and enforce the public policy embodied in the statute, in every given case whether any particular act or contract was within the contemplation of the statute. If the criterion by which it is to be determined in all cases whether every contract, combination, etc., is a restraint of trade within the intendment of the law, is the direct or indirect effect of the acts involved, then of course the rule of reason becomes the guide, and the construction which we have given the statute, instead of being refuted by the cases relied upon, is by those cases demonstrated to be correct. This is true, because the construction which we have deduced from the history of the act and the analysis of its text is simply that in every case where it is claimed that an act or acts are in violation of the statute, the rule of reason, in the light of the principles of law and the public policy which the act embodies, must be applied. From this it follows, since that rule and the result of the test as to direct or indirect, in their ultimate aspect, come to one and the same thing, that the difference between the two is therefore only that which obtains between things which do not differ at all.

United States v. U.S. Steel Corporation, 251 U.S. 417 (1920) Mr. Justice McKENNA delivered the opinion of the Court. Suit against the Steel Corporation and certain other companies which it directs and controls by reason of the ownership of their stock, it and they being separately and collectively charged as violators of the Sherman Anti-Trust Act. It is prayed that it and they be dissolved because engaged in illegal restraint of trade and the exercise of monopoly. Special charges of illegality and monopoly are made and special redresses and remedies are prayed, among others, that there be a prohibition of stock ownership and exercise of rights under such ownership, and that there shall be such orders and distribution of the stock and other properties as shall be in accordance with equity and good conscience and “shall effectuate the purpose of the Anti-Trust Act.” General relief is also prayed. The Steel Corporation is a holding company only; the other companies are the operating ones, manufacturers in the iron and steel industry, 12 in number. There are, besides, other corporations and individuals more or less connected in the activities of the other defendants, that are alleged to be instruments or accomplices in their activities and offendings, and that these activities and offendings (speaking in general

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terms) extend from 1901 to 1911, when the bill was filed, and have illustrative periods of significant and demonstrated illegality. Issue is taken upon all these charges, and we see at a glance what detail of circumstances may be demanded, and we may find ourselves puzzled to compress them into an opinion that will not be of fatiguing prolixity. . . . The contentions of the case, therefore, must be judged by the requirements of the law, not by accidental or adventitious circumstances. But what are such circumstances? We have seen that it was the view of the District Court that size was such a circumstance and had no accusing or excusing influence. The contention of the government is to the contrary. Its assertion is that the size of the corporation being the result of a “combination of powerful and able competitors” had become “substantially dominant” in the industry and illegal. And that this was determined. The companies combined, is the further assertion, had already reached a high degree of efficiency, and in their independence were factors in production and competition, ceased to be such when brought under the regulating control of the corporation, which by uniting them offended the law, and that the organizers of the corporation “had in mind the specific purposes of the restraint of trade and the enormous profits resulting from that restraint.” It is the contention of the corporation opposing those of the government and denying the illegal purposes charged against it, that the industry demanded qualities and an enterprise that lesser industries do not demand and must have a corresponding latitude and facility. Indeed it is insisted that the industry had practically, to quote the words of Judge Buffington, he quoting those of a witness, “reached the limit, or nearly, at which economies from a metallurgical or mechanical standpoint could be made effective” and “that instead, as was then the practice, of having one mill make 10, or 20, or 50 products, the greatest economy would result from one mill making one product and making that product continuously.” In other words that there was a necessity for integration, and rescue from the old conditions, from their improvidence and waste of effort, and that in redress of the conditions the corporation was formed; its purpose and effect being “salvage, not monopoly,” to quote the words of counsel. It was, is the insistence, the conception of ability, “a vision of a great business which should embrace all lines of steel and all processes of manufacture, from the ore to the finished product, and which by reason of the economies thus to be effected, and the diversity of products it would be able to offer, could successfully compete in all the markets of the world.” It is urged, further, that to the discernment of that great possibility was added a courage that dared attempt its accomplishment, and the conception and the courage made the formation of the corporation notable, but did not make it illegal. . . . What, then, can now be urged against the corporation? Can comparisons in other regards be made with its competitors and by such comparisons guilty or innocent existence be assigned it? It is greater in size and productive power than any of its com-

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petitors, equal or nearly equal to them all, but its power over prices was not and is not commensurate with its power to produce. . . . From this digression we return to the consideration of the conduct of the corporation to its competitors. Besides the circumstances which we have mentioned there are others of probative strength. The company’s officers, and, as well, its competitors and customers, testified that its competition was genuine, direct, and vigorous and was reflected in prices and production. No practical witness was produced by the government in opposition. Its contention is based on the size and asserted dominance of the corporation, alleged power for evil, not the exertion of the power in evil. Or, as counsel put it, “a combination may be illegal because of its purpose; it may be illegal because it acquires a dominating power, not as a result of normal growth and development, but as a result of a combination of competitors.” Such composition and its resulting power constitute, in the view of the government, the offense against the law, and yet it is admitted “no competitor came forward and said he had to accept the Steel Corporation’s prices.” But in this absence of complaint counsel urge against the corporation. Competitors, it is said, followed the corporation’s prices, because they made money by the imitation. Indeed, the imitation is urged as an evidence of the corporation’s power. “Universal imitation,” counsel assert, is “an evidence of power.” In this concord of action, the contention is, there is the sinister dominance of the corporation, “its extensive control of the industry is such that the others [independent companies] follow.” Counsel, however, admit that there was “occasionally” some competition, but reject the suggestion that it extended practically to a war between the corporation and the independents. . . . The corporation was formed in 1901, no act of aggression upon its competitors is charged against it, it confederated with them at times in offense against the law, but abandoned that before this suit was brought, and since 1911 no act in violation of law can be established against it, except its existence be such an act. This is urged, as we have seen, and that the interest of the public is involved, and that such interest is paramount to corporation or competitors. Granted, though it is difficult to see how there can be restraint of trade when there is no restraint of competitors in the trade, nor complaints by customers, how can it be worked out of the situation, and through what proposition of law? Of course it calls for nothing other than a right application of the law, and, to repeat what we have said above, shall we declare the law to be that size is an offense, even though it minds its own business, because what it does is imitated? The corporation is undoubtedly of impressive size, and it takes an effort of resolution not to be affected by it or to exaggerate its influence. But we must adhere to the law, and the law does not make mere size an offense, or the existence of “unexerted” power an offense. It, we repeat, requires overt acts, and trusts to its prohibition of them and its power to repress or punish them. It does not compel competition, nor require all that is possible. . . .

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In conclusion, we are unable to see that the public interest will be served by yielding to the contention of the government respecting the dissolution of the company or the separation from it of some of its subsidiaries; and we do see in a contrary conclusion a risk of injury to the public interest, including a material disturbance of, and, it may be serious detriment to, the foreign trade. And in submission to the policy of the law and its fortifying prohibitions the public interest is of paramount regard.

Schenck v. United States, 249 U.S. 47 (1919) Mr. Justice HOLMES delivered the opinion of the Court. This is an indictment in three counts. The first charges a conspiracy to violate the Espionage Act of June 15, 1917, by causing and attempting to cause insubordination, etc., in the military and naval forces of the United States, and to obstruct the recruiting and enlistment service of the United States, when the United States was at war with the German Empire, to wit, that the defendant wilfully conspired to have printed and circulated to men who had been called and accepted for military service under the Act of May 18, 1917, a document set forth and alleged to be calculated to cause such insubordination and obstruction. The count alleges overt acts in pursuance of the conspiracy, ending in the distribution of the document set forth. The second count alleges a conspiracy to commit an offense against the United States, to wit, to use the mails for the transmission of matter declared to be non-mailable by Title 12, 2, of the Act of June 15, 1917, to wit, the above mentioned document, with an averment of the same overt acts. The third count charges an unlawful use of the mails for the transmission of the same matter and otherwise as above. The defendants were found guilty on all the counts. They set up the First Amendment to the Constitution forbidding Congress to make any law abridging the freedom of speech, or of the press, and bringing the case here on that ground have argued some other points also of which we must dispose. It is argued that the evidence, if admissible, was not sufficient to prove that the defendant, Schenck, was concerned in sending the documents. According to the testimony, Schenck said he was general secretary of the Socialist party and had charge of the Socialist headquarters from which the documents were sent. He identified a book found there as the minutes of the Executive Committee of the party. The book showed a resolution of August 13, 1917, that 15,000 leaflets should be printed on the other side of one of them in use, to be mailed to men who had passed exemption boards, and for distribution. Schenck personally attended to the printing. On August 20 the general secretary’s report said “Obtained new leaflets from printer and started work addressing envelopes” etc.; and there was a resolve that Comrade Schenck be allowed $125 for sending leaflets through the mail. He said that he had about fifteen or sixteen thou-

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sand printed. There were files of the circular in question in the inner office which he said were printed on the other side of the one sided circular and were there for distribution. Other copies were proved to have been sent through the mails to drafted men. Without going into confirmatory details that were proved, no reasonable man could doubt that the defendant, Schenck, was largely instrumental in sending the circulars about. As to the defendant Baer there was evidence that she was a member of the Executive Board and that the minutes of its transactions were hers. The argument as to the sufficiency of the evidence that the defendants conspired to send the documents only impairs the seriousness of the real defense. It is objected that the documentary evidence was not admissible because obtained upon a search warrant, valid so far as appears. The contrary is established. The search warrant did not issue against the defendant but against the Socialist headquarters at 1326 Arch Street and it would seem that the documents technically were not even in the defendants’ possession. Notwithstanding some protest in argument the notion that evidence even directly proceeding from the defendant in a criminal proceeding is excluded in all cases by the Fifth Amendment is plainly unsound. The document in question upon its first printed side recited the first section of the Thirteenth Amendment, said that the idea embodied in it was violated by the conscription act and that a conscript is little better than a convict. In impassioned language it intimated that conscription was despotism in its worst form and a monstrous wrong against humanity in the interest of Wall Street’s chosen few. It said, “Do not submit to intimidation,” but in form at least confined itself to peaceful measures such as a petition for the repeal of the act. The other and later printed side of the sheet was headed “Assert Your Rights.” It stated reasons for alleging that any one violated the Constitution when he refused to recognize “your right to assert your opposition to the draft,” and went on, “If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain.” It described the arguments on the other side as coming from cunning politicians and a mercenary capitalist press, and even silent consent to the conscription law as helping to support an infamous conspiracy. It denied the power to send our citizens away to foreign shores to shoot up the people of other lands, and added that words could not express the condemnation such cold-blooded ruthlessness deserves, etc., etc., winding up, “You must do your share to maintain, support, and uphold the rights of the people of this country.” Of course the document would not have been sent unless it had been intended to have some effect, and we do not see what effect it could be expected to have upon persons subject to the draft except to influence them to obstruct the carrying of it out. The defendants do not deny that the jury might find against them on this point. But it is said, suppose that that was the tendency of this circular, it is protected by the First Amendment to the Constitution. Two of the strongest expressions are said

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to be quoted respectively from well-known public men. It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the main purpose. . . . We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is committed. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right. It seems to be admitted that if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced. The statute of 1917 punishes conspiracies to obstruct as well as actual obstruction. If the act (speaking, or circulating a paper), its tendency, and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime. Indeed that case might be said to dispose of the present contention if the precedent covers all media concludendi. But as the right to free speech was not referred to specially, we have thought fit to add a few words. It was not argued that a conspiracy to obstruct the draft was not within the words of the Act of 1917. The words are “obstruct the recruiting or enlistment service,” and it might be suggested that they refer only to making it hard to get volunteers. Recruiting heretofore usually having been accomplished by getting volunteers the word is apt to call up that method only in our minds. But recruiting is gaining fresh supplies for the forces, as well by draft as otherwise. It is put as an alternative to enlistment or voluntary enrollment in this act. The fact that the Act of 1917 was enlarged by the amending Act of May 16, 1918, of course, does not affect the present indictment and would not, even if the former act had been repealed.

Abrams v. United States, 250 U.S. 616 (1919) Mr. Justice HOLMES, dissenting. This indictment is founded wholly upon the publication of two leaflets which I shall describe in a moment. The first count charges a conspiracy pending the war with Germany to publish abusive language about the form of government of the United

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States, laying the preparation and publishing of the first leaflet as overt acts. The second count charges a conspiracy pending the war to publish language intended to bring the form of government into contempt, laying the preparation and publishing of the two leaflets as overt acts. The third count alleges a conspiracy to encourage resistance to the United States in the same war and to attempt to effectuate the purpose by publishing the same leaflets. The fourth count lays a conspiracy to incite curtailment of production of things necessary to the prosecution of the war and to attempt to accomplish it by publishing the second leaflet to which I have referred. The first of these leaflets says that the President’s cowardly silence about the intervention in Russia reveals the hypocrisy of the plutocratic gang in Washington. It intimates that “German militarism combined with allied capitalism to crush the Russian revolution,” goes on that the tyrants of the world fight each other until they see a common enemy, working class enlightenment, when they combine to crush it; and that now militarism and capitalism combined, though not openly, to crush the Russian revolution. It says that there is only one enemy of the workers of the world and that is capitalism; that it is a crime for workers of America, etc., to fight the workers’ republic of Russia, and ends “Awake! Awake, you workers of the world! Revolutionists.” A note adds “It is absurd to call us pro-German. We hate and despise German militarism more than do you hypocritical tyrants. We have more reason for denouncing German militarism than has the coward of the White House.” The other leaflet, headed “Workers, Wake Up,” with abusive language says that America together with the Allies will march for Russia to help the Czecko-Slovaks in their struggle against the Bolsheviki, and that this time the hypocrites shall not fool the Russian emigrants and friends of Russia in America. It tells the Russian emigrants that they now must spit in the face of the false military propaganda by which their sympathy and help to the prosecution of the war have been called forth and says that with the money they have lent or are going to lend “they will make bullets not only for the Germans but also for the Workers Soviets of Russia,” and further, “Workers in the ammunition factories, you are producing bullets, bayonets, cannon to murder not only the Germans, but also your dearest, best, who are in Russia fighting for freedom.” It then appeals to the same Russian emigrants at some length not to consent to the “inquisitionary expedition in Russia,” and says that the destruction of the Russian revolution is “the politics of the march on Russia.” The leaflet winds up by saying “Workers, our reply to this barbaric intervention has to be a general strike!” and after a few words on the spirit of revolution, exhortations not to be afraid, and some usual tall talk ends “Woe unto those who will be in the way of progress. Let solidarity live! The Rebels.” No argument seems to be necessary to show that these pronouncements in no way attack the form of government of the United States, or that they do not support either of the first two counts. What little I have to say about the third count may be

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postponed until I have considered the fourth. With regard to that it seems too plain to be denied that the suggestion to workers in the ammunition factories that they are producing bullets to murder their dearest, and the further advocacy of a general strike, both in the second leaflet, do urge curtailment of production of things necessary to the prosecution of the war within the meaning of the Act of May 16, 1918, amending section 3 of the earlier Act of 1917. But to make the conduct criminal that statute requires that it should be “with intent by such curtailment to cripple or hinder the United States in the prosecution of the war.” It seems to me that no such intent is proved. I am aware of course that the word “intent” as vaguely used in ordinary legal discussion means no more than knowledge at the time of the act that the consequences said to be intended will ensue. Even less than that will satisfy the general principle of civil and criminal liability. A man may have to pay damages, may be sent to prison, at common law might be hanged, if at the time of his act he knew facts from which common experience showed that the consequences would follow, whether he individually could foresee them or not. But, when words are used exactly, a deed is not done with intent to produce a consequence unless that consequence is the aim of the deed. It may be obvious, and obvious to the actor, that the consequence will follow, and he may be liable for it even if he regrets it, but he does not do the act with intent to produce it unless the aim to produce it is the proximate motive of the specific act, although there may be some deeper motive behind. It seems to me that this statute must be taken to use its words in a strict and accurate sense. They would be absurd in any other. A patriot might think that we were wasting money on aeroplanes or making more cannon of a certain kind than we needed, and might advocate curtailment with success, yet even if it turned out that the curtailment hindered and was thought by other minds to have been obviously likely to hinder the United States in the prosecution of the war, no one would hold such conduct a crime. I admit that my illustration does not answer all that might be said but it is enough to show what I think and to let me pass to a more important aspect of the case. I refer to the First Amendment to the Constitution that Congress shall make no law abridging the freedom of speech. I never have seen any reason to doubt that the questions of law that alone were before this Court in the cases of Schenck, Frohwerk, and Debs were rightly decided. I do not doubt for a moment that by the same reasoning that would justify punishing persuasion to murder, the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent. The power undoubtedly is greater in time of war than in time of peace because war opens dangers that do not exist at other times. But as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. It is only the present danger of immediate evil

Appendix

or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country. Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so. Publishing those opinions for the very purpose of obstructing, however, might indicate a greater danger and at any rate would have the quality of an attempt. So I assume that the second leaflet if published for the purposes alleged in the fourth count might be punishable. But it seems pretty clear to me that nothing less than that would bring these papers within the scope of this law. An actual intent in the sense that I have explained is necessary to constitute an attempt, where a further act of the same individual is required to complete the substantive crime. . . . It is necessary where the success of the attempt depends upon others because if that intent is not present the actor’s aim may be accomplished without bringing about the evils sought to be checked. An intent to prevent interference with the revolution in Russia might have been satisfied without any hindrance to carrying on the war in which we were engaged. I do not see how anyone can find the intent required by the statute in any of the defendant’s words. The second leaflet is the only one that affords even a foundation for the charge, and there, without invoking the hatred of German militarism expressed in the former one, it is evident from the beginning to the end that the only object of the paper is to help Russia and stop American intervention there against the popular government, not to impede the United States in the war that it was carrying on. To say that two phrases taken literally might import a suggestion of conduct that would have interference with the war as an indirect and probably undesired effect seems to me by no means enough to show an attempt to produce that effect. I return for a moment to the third count. That charges an intent to provoke resistance to the United States in its war with Germany. Taking the clause in the statute that deals with that in connection with the other elaborate provisions of the Act, I think that resistance to the United States means some forcible act of opposition to some proceeding of the United States in pursuance of the war. I think the intent must be the specific intent that I have described and for the reasons that I have given I think that no such intent was proved or existed in fact. I also think that there is no hint at resistance to the United States as I construe the phrase. In this case sentences of twenty years imprisonment have been imposed for the publishing of two leaflets that I believe the defendants had as much right to publish as the government has to publish the Constitution of the United States now vainly invoked by them. Even if I am technically wrong and enough can be squeezed from these poor and puny “anonymities” to turn the color of legal litmus paper; I will add, even if what I think the necessary intent were shown; the most nominal punishment

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seems to me all that possibly could be inflicted, unless the defendants are to be made to suffer not for what the indictment alleges but for the creed that they avow, a creed that I believe to be the creed of ignorance and immaturity when honestly held, as I see no reason to doubt that it was held here but which, although made the subject of examination at the trial, no one has a right even to consider in dealing with the charges before the Court. Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas, that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. I wholly disagree with the argument of the government that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion. I had conceived that the United States through many years had shown its repentance for the Sedition Act of 1798 by repaying fines that it imposed. Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, “Congress shall make no law abridging the freedom of speech.” Of course I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States. Mr. Justice BRANDEIS concurs with the foregoing opinion.

Chronology

1877

November 29 John Marshall Harlan confirmed to replace Justice David Davis.

1887

February 4 Interstate Commerce Act passed.

1890

July 2 Sherman Anti-Trust Act passed.

1894

January 16 Edward Douglass White confirmed to replace Justice Samuel Blatchford.

1898

January 21 Joseph McKenna confirmed to replace Justice Stephen J. Field.

1901

September 14 Theodore Roosevelt sworn in as president.

1902

December 4 Oliver Wendell Holmes Jr. confirmed to replace Justice Horace Gray. December 8 Oliver Wendell Holmes Jr. takes his seat on the Supreme Court.

1903

February 23 William R. Day confirmed to replace Justice George Shiras Jr. March 2 William R. Day takes his seat on the Supreme Court.

1904

March 14 Northern Securities Co. v. United States (193 U.S. 197) decision marks first successful trust-busting effort under Sherman Act.

1906

June 29 Hepburn Act passed. June 30 Meat Packing Act passed. June 30 Pure Food and Drug Act passed.

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1908

February 24 Muller v. Oregon (208 U.S. 412) approves state regulation of working hours for women.

1909

March 4 William Howard Taft sworn in as president. December 20 Horace Lurton confirmed to replace Justice Rufus Peckham.

1910

January 3 Horace Lurton sworn in as a member of the Supreme Court. May 2 Charles Evans Hughes confirmed to replaced Justice David Brewer. June 25 Mann Act passed, making it a crime to transport women across state lines for immoral purposes. October 10 Charles Evans Hughes takes his seat on the Supreme Court. December 12 Edward Douglass White confirmed to replace Chief Justice Melville W. Fuller. December 15 Willis Van Devanter confirmed to replace White as associate justice. December 15 Joseph R. Lamar confirmed to replace Justice William Moody.

1911

January 3 Edward Douglass White takes his seat as chief justice of the Supreme Court. January 3 Bailey v. Alabama (219 U.S. 219) overturns state law establishing debt peonage system. March 13 Decision in Hipolite Egg Company v. United States (220 U.S. 45) upholds constitutionality of Pure Food and Drug Act. May 15 Decision in Standard Oil Co. v. United States (221 U.S. 1) requires dismantlement of company; also established “rule of reason.” May 29 Decision in United States v. American Tobacco Company (221 U.S. 106) requires dismantlement of trust. July 4 First workmen’s compensation act went into effect in New Jersey.

Chronology

October 14 Justice John M. Harlan dies. 1912

March 14 Mahlon Pitney confirmed to replace Justice John Marshall Harlan. November 5 Woodrow Wilson elected president.

1913

January 6 Decision in United States v. Union Pacific Railway Company (226 U.S. 61) denies Union Pacific’s request to be allowed to sell its Southern Pacific stock to major shareholders. February 25 Sixteenth Amendment, authorizing the creation of a federal income tax, added to the Constitution. March 1 Webb-Kenyon Act, regulating interstate shipment of alcoholic beverages, is passed, over President Taft’s veto. March 4 Woodrow Wilson sworn in as president. May 31 Seventeenth Amendment, providing for the direct election of senators, added to the Constitution. June 9 Minnesota Rate Cases (230 U.S. 352) decided, allowing Interstate Commerce Commission to regulate intrastate railroad rates that affected interstate traffic. July 1 First minimum wage law takes effect in Massachusetts. October 3 Underwood-Simmons Tariff passed. December 23 Federal Reserve Act passed.

1914

February 24 Weeks v. United States (232 U.S. 383) establishes the exclusionary rule for admissibility of evidence in federal cases. June 8 Shreveport Rate Cases (234 U.S. 342) broaden Interstate Commerce Commission’s power over intrastate railroad rates. July 28 Beginning of World War I. August 4 President Wilson issues a proclamation of neutrality.

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1914, August 29 James C. McReynolds confirmed to replace Justice Horace Lurton. cont. September 26 Federal Trade Commission established. 1915

January 25 Coppage v. Kansas (236 U.S. 1) outlaws state law barring use of yellow-dog contracts. June 21 Guinn and Beal v. United States (238 U.S. 347) outlaws use of grandfather clause to disenfranchise voters.

1916

January 24 Brushaber v. Union Pacific Railroad (240 U.S. 1) rules that income tax is constitutional. June 1 Louis D. Brandeis confirmed to replace Justice Joseph R. Lamar. June 3 National Defense Act passed. June 5 Louis D. Brandeis takes his seat on the U.S. Supreme Court. June 10 Charles Evans Hughes resigns his Supreme Court seat. July 24 John Hessin Clarke confirmed to replace Justice Charles Evans Hughes. September 2 Adamson Act regulating wages and hours of railroad workers is passed.

1917

January 15 Caminetti v. United States (242 U.S. 470) decided, ruling that Mann Act applies even if a woman is transported across state lines with her consent. March 5 Woodrow Wilson sworn in for second term as president. March 19 Wilson v. New (243 U.S. 332) establishes the constitutionality of wages and hours requirements set by Adamson Act. April 6 United States enters World War I. April 7 Bunting v. Oregon (243 U.S. 426) upholds state law regulating length of workday and workweek for both men and women.

Chronology

May 18 Selective Service Act provides for wartime conscription. June 15 Espionage Act passed, making it a crime to interfere with the war effort or the draft or to obtain or receive national defense information without authorization. August 16 Migratory Bird treaty signed by United States and Great Britain (signing for Canada). September 3 Adamson Eight-Hour Act passed. 1918

January 7 Selective Draft Law Cases (245 U.S. 366) reject challenges to the constitutionality of the wartime draft. January 8 President Wilson announces Fourteen Points. May 16 Sedition Act makes it a crime to criticize the government or the war effort in speech or in writing. June 3 Hammer v. Dagenhart (247 U.S. 251) rejects use of commerce clause to regulate child labor. November 17 Buchanan v. Warley (245 U.S. 60) outlaws residential segregation laws. November 11 Armistice signed, ending World War I. November 21 Wartime Prohibition Act passed, banning manufacture or shipment of alcohol until war officially ended.

1919

February 24 Tax on goods produced with child labor is passed as part of a wartime revenue act. March 3 Schenck v. United States (249 U.S. 47) approves wartime restrictions on First Amendment rights. June 29 Eighteenth Amendment, prohibiting the manufacture, transportation, or sale of alcoholic beverages, added to the Constitution.

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1919, July 10 President Wilson sends the Treaty of Versailles to the Senate for raticont. fication. October 28 Volstead Act provides guidelines for implementing the provisions of the Eighteenth Amendment. November 10 Abrams v. United States (250 U.S. 616) upholds wartime restrictions on First Amendment rights, but Holmes’s powerful dissent advocates “free marketplace of ideas.” November 19 Treaty of Versailles fails ratification by the Senate by a vote of 55–39. December 15 Hamilton v. Kentucky Distilleries (251 U.S. 146) decision upholds Wartime Prohibition Act. 1920

January 5 Rupert v. Caffey (251 U.S. 264) upholds Volstead Act standard for intoxicated beverages. January 16 Eighteenth Amendment takes effect. March 1 Decision in United States v. U.S. Steel (251 U.S. 417) allows trust to stand, saying bigness, in and of itself, does not constitute violation of antitrust law. April 19 Missouri v. Holland (252 U.S. 416) affirms supremacy of treaty provisions over state law. June 7 National Prohibition Cases (253 U.S. 350) affirm constitutionality of Eighteenth Amendment. June 10 Federal Power Commission established. August 26 Nineteenth Amendment, establishing women’s suffrage, added to the Constitution.

1921

February 28 United States v. L. Cohen Grocery Company (255 U.S. 81) rejects Lever Act controls over wartime production and sale as lacking adequate guidelines.

Chronology

March 4 Warren G. Harding sworn in as president. May 19 Chief Justice Edward Douglass White dies. August 25 United States signs peace treaty with Germany. 1922

February 27 Nineteenth Amendment declared constitutional by a unanimous Supreme Court. September 1 Justice John H. Clarke resigns from the Supreme Court. November 13 Justice William R. Day retires from the Supreme Court.

1925

June 8 Gitlow v. New York (268 U.S. 652) acknowledges for the first time the application of portions of the federal Bill of Rights to the states.

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Table of Cases

Abrams v. United States, 250 U.S. 616 (1919) Adair v. United States, 208 U.S. 161 (1908) Adamson v. California, 332 U.S. 46 (1947) Adkins v. Children’s Hospital, 261 U.S. 525 (1923) Aldridge v. United States, 283 U.S. 308 (1931) Allanwilde Transportation Corp. v. Vacuum Oil Company, 248 U.S. 377 (1919) Allgeyer v. Louisiana, 165 U.S. 578 (1897) American Column and Lumber Co. v. United States, 257 U.S. 391 (1921) American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184 (1921) Arizona Employers’ Liability Cases, 250 U.S. 400 (1919) Armour Packing Co. v. United States, 209 U.S. 56 (1908) Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936) B. Altman Co. v. United States, 224 U.S. 583 (1912) Bailey v. Alabama, 211 U.S. 452 (1908) Bailey v. Alabama, 219 U.S. 219 (1911) Bailey v. Drexel Furniture Company, 259 U.S. 20 (1922) Bailey v. McLaughlin, 236 U.S. 385 (1915) Baker v. Carr, 369 U.S. 186 (1962) Baltimore and Ohio Railroad v. Interstate Commerce Commission, 221 U.S. 612 (1911) Barron v. Baltimore, 7 Peters 243 (1833) Bauer and Cie v. O’Donnell, 229 U.S. 1 (1913) Berea College v. Kentucky, 211 U.S. 45 (1908) Berg v. British and African Steam Navigation Co., 243 U.S. 124 (1917) Block v. Hirsch, 256 U.S. 135 (1921) Bosley v. McLaughlin, 236 U.S. 385 (1915) Brown v. Board of Education, 337 U.S. 483 (1954) Brown v. Maryland, 12 Wheat. 419 (1827) Brushaber v. Union Pacific Railroad, 240 U.S. 1 (1916) Buchanan v. Warley, 245 U.S. 60 (1917)

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Bunting v. Oregon, 243 U.S. 426 (1917) Burke v. Southern Pacific Railroad, 234 U.S. 669 (1914) Butler v. Perry, 240 U.S. 328 (1916) Buttfield v. Stranahan, 92 U.S. 470 (1904) Butts v. Merchants and Miners Transportation Company, 230 U.S. 126 (1913) Byars v. United States, 273 U.S. 28 (1927) Caminetti v. United States, 242 U.S. 470 (1917) Carter v. Carter Coal Company, 298 U.S. 238 (1936) Champion v. Ames, 188 U.S. 321 (1903) Chicago Board of Trade v. United States, 246 U.S. 231 (1918) Choate v. Tropp, 224 U.S. 665 (1912) Cincinnati, New Orleans, and Texas Pacific Railway Co. v. Interstate Commerce Commission, 162 U.S. 184 (1896) City of Covington v. South Covington and Cincinnati Street Railway Co., 246 U.S. 413 (1918) Civil Rights Cases, 109 U.S. 3 (1883) Clark Distilling Co. v. Western Maryland Railway, 242 U.S. 311 (1917) Coppage v. Kansas, 236 U.S. 1 (1915) Corrigan v. Buckley, 271 U.S. 323 (1926) Cox v. Wood, 247 U.S. 3 (1918) Coyle v. Oklahoma, 221 U.S. 559 (1911) Dakota Central Telephone Company v. South Dakota, 250 U.S. 163 (1919) Dayton-Goose Creek Railway v. United States, 263 U.S. 456 (1924) De Jonge v. Oregon, 299 U.S. 353 (1937) Debs v. United States, 249 U.S. 211 (1919) Degge v. Hitchcock, 229 U.S. 162 (1913) Dr. Miles Medical Co. v. John D. Park and Sons Co., 220 U.S. 373 (1911) Duplex Printing Co. v. Deering, 254 U.S. 443 (1921) Eisner v. Macomber, 252 U.S. 189 (1920) Elkins v. United States, 364 U.S. 206 (1960) Employers’ Liability Cases, 207 U.S. 463 (1908) Evans v. Gore, 253 U.S. 245 (1920) Ex parte Peterson, 253 U.S. 300 (1920) Federal Trade Commission v. Curtis Publishing Company, 260 U.S. 568 (1923) Federal Trade Commission v. Gratz, 253 U.S. 421 (1920) Field v. Clark, 143 U.S. 649 (1892) First Employers’ Liability Cases, 207 U.S. 463 (1908) Florida East Coast Railway v. United States, 234 U.S. 167 (1914) Frohwerk v. United States, 249 U.S. 204 (1919) German Alliance Insurance Company v. Lewis, 233 U.S. 389 (1914)

Table of Cases

Gibbons v. Ogden, 9 Wheat. 1 (1824) Gilbert v. Minnesota, 254 U.S. 325 (1920) Gitlow v. New York, 268 U.S. 652 (1925) Gompers v. Buck’s Stove and Range Company, 221 U.S. 418 (1911) Green v. Frazier, 253 U.S. 233 (1920) Guinn and Beal v. United States, 238 U.S. 347 (1915) Hall v. Geiger-Jones Co., 242 U.S. 539 (1917) Hamilton v. Kentucky Distilleries, 251 U.S. 146 (1919) Hammer v. Dagenhart, 247 U.S. 251 (1918) Heim v. McCall, 239 U.S. 175 (1915) Helvering v. Davis, 301 U.S. 619 (1937) Hennington v. Georgia, 163 U.S. 299 (1896) Henry v. A. B. Dick Company, 224 U.S. 1 (1912) Herndon v. Lowry, 301 U.S. 242 (1937) Hipolite Egg Company v. United States, 220 U.S. 45 (1911) Hitchman Coal and Coke Co. v. Mitchell, 245 U.S. 229 (1917) Hoke v. United States, 227 U.S. 308 (1913) Holden v. Hardy, 169 U.S. 366 (1898) Home Building and Loan Association v. Blaisdell, 290 U.S. 398 (1934) Houston, East and West Texas Railway Co. v. United States, 234 U.S. 342 (1914) Hurtado v. California, 110 U.S. 516 (1884) Illinois Central Railroad Co. v. Interstate Commerce Commission, 206 U.S. 441 (1907) In re Debs, 158 U.S. 564 (1895) Interstate Commerce Commission v. Alabama Midland Railroad, 168 U.S. 144 (1897) Interstate Commerce Commission v. Chicago, Rock Island, and Pacific Railway Company, 218 U.S. 88 (1910) Interstate Commerce Commission v. Cincinnati, New Orleans, and Texas Pacific Railway Company, 167 U.S. 479 (1897) Interstate Commerce Commission v. Goodrich Transit Company, 224 U.S. 194 (1912) Interstate Commerce Commission v. Illinois Central Railroad Company, 215 U.S. 452 (1910) Interstate Commerce Commission v. Louisville and Nashville Railroad, 227 U.S. 88 (1913) Interstate Commerce Commission v. Union Pacific Railroad, 222 U.S. 541 (1912) Jeffrey Manufacturing Co. v. Blagg, 235 U.S. 574 (1915) Jones Glass Company v. Glass Bottle Blowers’ Association, 77 N.J. Eq. 219 (1908) Kansas City Southern Railway v. United States, 231 U.S. 423 (1913)

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Karem v. United States, 112 U.S. 250 (1903) Kiernan v. Portland, 223 U.S. 157 (1911) Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920) Kronprinzessin Cecilie (or North German Lloyd v. Guaranty Trust Co.), 244 U.S. 12 (1917) Lee Wilson Co. v. United States, 245 U.S. 24 (1917) Leisy v. Hardin, 135 U.S. 100 (1890) Lochner v. New York, 198 U.S. 45 (1905) Loewe v. Lawlor, 208 U.S. 274 (1908) Louisville and Nashville Railroad v. United States, 242 U.S. 60 (1916) Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935) Manufacturers Railway v. United States, 246 U.S. 457 (1918) Maple Flooring Manufacturers Association v. United States, 268 U.S. 563 (1929) Marbury v. Madison, 5 U.S. 137 (1803) Marcus Brown Co. v. Feldman, 256 U.S. 170 (1921) McCabe v. Atchison, Topeka, and Santa Fe Railway Company, 235 U.S. 151 (1914) McCoach v. Minehill Railway Company, 228 U.S. 295 (1913) McCray v. United States, 195 U.S. 27 (1904) McDermott v. Wisconsin, 228 U.S. 115 (1913) McGrain v. Daugherty, 273 U.S. 135 (1927) McKinley v. United States, 249 U.S. 397 (1919) Meyer v. Nebraska, 262 U.S. 390 (1923) Miller v. Wilson, 236 U.S. 373 (1915) Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407 (1921) Minersville School District v. Gobitis, 310 U.S. 586 (1940) Minnesota Rate Cases, 230 U.S. 352 (1913) Missouri v. Holland, 252 U.S. 416 (1920) Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) Mitchell Coal and Coke Co. v. Pennsylvania Railroad, 230 U.S. 247 (1913) Mondou v. New York, New Haven, and Hartford Railroad Company, 223 U.S. 1 (1912) Morrisdale Coal Company v. Pennsylvania Railroad, 230 U.S. 304 (1913) Motion Picture Company v. Universal Film Manufacturing Company, 243 U.S. 502 (1917) Mountain Timber Co. v. Washington, 243 U.S. 219 (1917) Mugler v. Kansas, 123 U.S. 623 (1887) Muller v. Oregon, 208 U.S. 412 (1908) Munn v. Illinois, 94 U.S. 113 (1877) Myers v. Anderson, 238 U.S. 368 (1915)

Table of Cases

National Labor Relations Board v. Jones and Laughlin Steel Corporation, 301 U.S. 1 (1937) National Prohibition Cases, 253 U.S. 350 (1920) Near v. Minnesota, 283 U.S. 697 (1931) Nebbia v. New York, 291 U.S. 502 (1934) New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) New York Central Railroad Co. v. White, 243 U.S. 188 (1917) New York Central Railroad Co. v. Winfield, 244 U.S. 147 (1917) Nixon v. Condon, 286 U.S. 73 (1932) Nixon v. Herndon, 273 U.S. 536 (1927) Norman v. Baltimore and Ohio Railroad, 294 U.S. 240 (1935) Northern Pacific Railway Co. v. North Dakota, 236 U.S. 585 (1919) Northern Securities Co. v. United States, 193 U.S. 197 (1904) Olmstead v. United States, 277 U.S. 438 (1928) Palko v. Connecticut, 302 U.S. 319 (1937) Patterson v. Colorado, 205 U.S. 454 (1907) Perry v. United States, 294 U.S. 330 (1935) Pierce v. Society of Sisters, 268 U.S. 510 (1925) Pierce v. United States, 252 U.S. 239 (1919) Plessy v. Ferguson, 163 U.S. 537 (1896) Pollock v. Farmer’s Loan and Trust Company, 158 U.S. 601 (1895) Portland Gold Mining Co. v. Duke, 164 Fed. 180 (Eighth Circuit), 1908 Powell v. Alabama, 287 U.S. 45 (1932) Puerto Rico v. Rosaly y Castillo, 227 U.S. 270 (1913) Purity Extract Co. v. Lynch, 226 U.S. 192 (1912) Quong Wing v. Kirkendall, 233 U.S. 59 (1911) Rassmussen v. United States, 197 U.S. 516 (1905) Reynolds v. United States, 235 U.S. 133 (1914) Rhode Island v. Palmer, 253 U.S. 350 (1920) Rupert v. Caffey, 251 U.S. 264 (1920) St. Louis, Iron Mountain, and Southern Railway v. Craft, 237 U.S. 648 (1915) Savage v. Jones, 225 U.S. 501 (1912) Schaeffer v. United States, 251 U.S. 466 (1920) Schaffer v. Farmers’ Grain Company, 268 U.S. 189 (1925) Schecter Poultry Corporation v. United States, 295 U.S. 495 (1935) Schenck v. United States, 249 U.S. 47 (1919) Second Employers’ Liability Cases, 223 U.S. 1 (1912) Selective Draft Law Cases, 245 U.S. 366 (1918) Seven Cases of Eckman’s Alternative v. United States, 239 U.S. 510 (1916)

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Shreveport Rate Cases, 234 U.S. 342 (1914) Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920) Smith v. Interstate Commerce Commission, 245 U.S. 33 (1917) South Covington and Cincinnati Street Railway Co. v. City of Covington, 235 U.S. 537 (1915) South Covington and Cincinnati Street Railway Co. v. Kentucky, 252 U.S. 399 (1920) Southern Pacific Company v. Jensen, 244 U.S. 205 (1917) Stafford v. Wallace, 258 U.S. 495 (1922) Standard Oil Co. v. United States, 221 U.S. 1 (1911) Standard Sanitary Manufacturing Co. v. United States, 226 U.S. 20 (1912) Steward Machine Company v. Davis, 301 U.S. 548 (1937) Stromberg v. California, 283 U.S. 359 (1931) Sturgis and Burns Manufacturing Co. v. Beauchamp, 231 U.S. 320 (1913) Swift and Co. v. United States, 196 U.S. 375 (1905) Thompson v. Thompson, 218 U.S. 611 (1910) Truax v. Corrigan, 257 U.S. 312 (1921) Truax v. Raich, 239 U.S. 33 (1915) Twining v. New Jersey, 211 U.S. 78 (1908) United Shoe Machinery Corporation v. United States, 258 U.S. 451 (1922) United States v. American Tobacco Company, 221 U.S. 106 (1911) United States v. Butler, 297 U.S. 1 (1936) United States v. Chandler-Dunbar Water Power Company, 229 U.S. 53 (1913) United States v. Darby Lumber Company, 312 U.S. 100 (1941) United States v. Doremus, 249 U.S. 86 (1919) United States v. E. C. Knight Company, 156 U.S. 1 (1895) United States v. Grimaud, 220 U.S. 506 (1911) United States v. Hill, 248 U.S. 420 (1919) United States v. Jin Fuey Moy, 241 U.S. 394 (1916) United States v. Johnson, 221 U.S. 488 (1911) United States v. Joint Traffic Association, 171 U.S. 505 (1898) United States v. L. Cohen Grocery Company, 255 U.S. 81 (1921) United States v. Lehigh Valley Railroad Company, 220 U.S. 257 (1920) United States v. Leon, 468 U.S. 897 (1984) United States v. Midwest Oil Company, 236 U.S. 459 (1915) United States v. Mosley, 238 U.S. 383 (1915) United States v. Quiver, 241 U.S. 602 (1916) United States v. Reading Railroad Company, 226 U.S. 324 (1912) United States v. Reading Railroad Company, 253 U.S. 26 (1920) United States v. Reynolds, 235 U.S. 133 (1914)

Table of Cases

United States v. Sandoval, 231 U.S. 28 (1913) United States v. Southern Pacific Railway, 251 U.S. 1 (1919) United States v. Terminal Railroad Association of St. Louis, 224 U.S. 383 (1912) United States v. Trans-Missouri Freight Association, 166 U.S. 290 (1897) United States v. Union Pacific Railway Company, 226 U.S. 61 (1912) United States v. Union Pacific Railway Company, 226 U.S. 470 (1913) United States v. United Shoe Machinery Company, 247 U.S. 32 (1918) United States v. U.S. Steel Corporation, 223 Fed. 55 (D.C. N.J. 1915) United States v. U.S. Steel, 251 U.S. 417 (1920) United States v. Winslow, 227 U.S. 202 (1913) United States ex rel. Attorney General v. Delaware and Hudson Company, 213 U.S. 366 (1909) United States ex rel. Milwaukee Socialist Democratic Publishing Co. v. Burleson, 255 U.S. 407 (1921) Wabash, St. Louis, and Pacific Railway Co. v. Illinois, 118 U.S. 557 (1886) War Prohibition Cases, 251 U.S. 146 (1919) Ward v. Race Horse, 163 U.S. 504 (1896) Webb v. United States, 249 U.S. 96 (1919) Weeks v. United States, 232 U.S. 383 (1914) Weeks v. United States, 245 U.S. 618 (1918) West Coast Hotel Company v. Parrish, 300 U.S. 379 (1937) West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) Whitney v. California, 274 U.S. 357 (1927) Williams v. Mississippi, 170 U.S. 213 (1898) Wilson v. New, 243 U.S. 332 (1917)

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Glossary

amicus curiae Latin meaning “friend of the court.” A person or group, not a party to a case, that submits a brief detailing its views on a case. The purpose of an amicus brief is to direct the court’s attention to an issue or argument that might not be developed in the same way by the parties themselves. appeal A process by which a final judgment of a lower court ruling is reviewed by a higher court. appellant The party who seeks review of a lower court ruling before a higher court; the party dissatisfied with a lower court ruling who appeals the case to a superior court for review. appellate jurisdiction Authority of a superior court to review decisions of inferior courts. Appellate jurisdiction empowers a higher court to conduct such a review and affirm, modify, or reverse the lower court decision. Appellate jurisdiction is conveyed through constitutional or statutory mandate. Federal appellate jurisdiction is granted by Article III of the Constitution, which says that the Supreme Court possesses such jurisdiction “both as to law and to fact, with such exceptions and under such regulations as the Congress shall make.” appellee The party that prevails in a lower court and against whom an appeal of the judgment is sought; in some situations called a “respondent.” assemble, right to A fundamental right provided by the First Amendment to the U.S. Constitution. It provides that people are entitled to gather peaceably and petition the government for “redress of grievances.” It includes the right to protest government policies as well as to advocate particular, even distasteful, views. The courts have ruled that government can impose regulations on the time, place, and manner of assembly, providing that substantial interests, such as preventing threats to public order, can be shown.

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brief

A document containing arguments on a matter under consideration by a

court. A brief submitted to an attorney typically contains, among other things, points of law from previous rulings. case

A general term for an action, cause, suit, or controversy at law. Precedent created as courts resolve disputes. Case law is judge-made law

case law

made from ruling on a specific set of facts. case or controversy

A constitutional requirement that disputes or controversies

be definite and concrete and involve parties whose legal interests are truly adverse. This requirement, contained in Article III of the Constitution, establishes a bona fide controversy as a precondition for adjudication by federal courts. certiorari

Latin for “to be informed of, to be made certain in regard to.” A writ or

order to a court whose decision is being challenged on appeal to send up the records of the case to enable a higher court to review the case. Since passage of the Judiciary Act of 1925, the writ of certiorari has been the primary means by which the U.S. Supreme Court reviews cases from lower courts. civil liberties

Those liberties spelled out in a bill of rights or constitution that

guarantee the protection of persons, opinions, and property from the arbitrary interference of government officials. Civil liberties create immunities from certain governmental actions that interfere with an individual’s protected rights. civil rights

Positive acts of government designed to protect persons against arbi-

trary and discriminatory treatment by government or individuals. Civil rights guarantees may be found in constitutions, but more frequently take the form of statutes. comity

Legal principle that prompts a court to defer to the exercise of jurisdiction

by another court. Comity is a rule of judicial courtesy rather than a firm requirement of the law, and it suggests that a court that first asserts jurisdiction will not undergo interference by another court without its consent. Commerce Clause

Provision found in Article I, Section 8 of the U.S. Constitution.

The clause empowers Congress to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Beginning in the late 1800s, interpretation of the Commerce Clause was expanded to provide for government regulation of businesses and exercise of federal police power. common law

A body of principles that derive their authority from court judgments

that are grounded in common customs and usages. Common law consists of principles that do not have their origin in statute and, as such, is distinct from law created by legislative enactments.

Glossary

An opinion by a judge that agrees with the decision of the

concurring opinion

majority, but disagrees with the majority’s rationale. The judge has arrived at the same conclusion, but for different reasons. conference

A meeting of Supreme Court justices in which the justices conduct all

business associated with deciding cases. Conferences are closed to all but the justices. These meetings are where the Supreme Court determines which cases will be reviewed, discusses the merits of the cases after oral argument, and decides by vote which party to a case will prevail. An agreement ending litigation filed by parties to a lawsuit. The

consent decree

agreement is binding only on those who were parties to the lawsuit. debt peonage

A system by which a landowner obligates a hired hand to continue

working for him by requiring him to work off debts he owes to the landowner. Used by southern landowners during the late nineteenth and early twentieth centuries to ensure a supply of cheap labor and as a means of keeping blacks from getting ahead economically. declaratory judgment

A ruling of a court that clarifies rights of the parties or

offers an opinion on a legal question, which is invoked when a plaintiff seeks a declaration of his or her rights. It differs from a conventional action in that no specific order is issued nor is any relief or remedy granted. decree

A judgment or order of a court. Latin for “in fact”; actual.

de facto de jure

Latin for “by right.” A de jure action occurs as a result of law or official

government action. defendant

The party who is sued in a civil action or is charged in a criminal case;

the party responding to a civil complaint. A defendant in a criminal case is the person formally accused of criminal conduct. dissenting opinion

The opinion of a judge who disagrees with the result reached

by the majority. diversity jurisdiction

Authority conveyed by Article III of the U.S. Constitution

empowering federal courts to hear civil actions involving parties from different states. due process

Government procedures that follow principles of essential or funda-

mental fairness. Provisions designed to ensure that laws will be reasonable both in substance and in means of implementation are contained in two clauses of the U.S.

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Constitution. The Fifth Amendment prohibits deprivation of “life, liberty, or property without due process of law.” It sets a limit on arbitrary and unreasonable actions by the federal government. The Fourteenth Amendment contains parallel language aimed at the states. Due process requires that actions of government occur through ordered and regularized processes. Eighteenth Amendment

Prohibited the manufacture, sale, transportation, impor-

tation, and exportation of intoxicating liquors. The amendment took effect on January 16, 1920. It was later repealed by the Twenty-first Amendment, ratified December 5, 1933. enjoin

An order from a court that requires a party to perform or refrain from a

specified action. A party is enjoined by a court issuing an injunction or a restraining order. equity

A system of remedial justice administered by certain courts empowered to

order remedies based on principles and precedents developed by the courts. exclusionary rule

Guideline established by the U.S. Supreme Court in Weeks v.

United States, 232 U.S. 383 (1914) that bans evidence police have obtained by means that violate the protections of the Fourth Amendment from admission in a criminal trial. exclusive power

Authority that is assigned to either the national or state level of

government, but not exercised by both. ex parte

Latin for “only one side.” Done for, in behalf of, or on the application of

one party only. executive order

A regulation issued by the president, a state governor, or some

other executive authority for the purpose of giving effect to a constitutional or statutory provision. An executive order has the force of law and is one means by which the executive branch implements laws. federal question

An issue arising out of the U.S. Constitution, federal statutes, or

treaties. A federal court has authority to hear federal questions under powers conferred by Article III of the U.S. Constitution. federalism

A political system in which a number of sovereign political units join

together forming a larger political unit that has authority to act on behalf of the whole. A federal system or federation preserves the political integrity of all the entities comprised in the federation. Federal systems are regarded as “weak” if the central government has control over very few policy questions, and a “strong” system is one in which the central government possesses authority over most significant policy

Glossary

issues. Authority that is not exclusively assigned may be shared by the two levels and exercised concurrently. The Supremacy Clause of the U.S. Constitution requires that conflicts arising from the exercise of federal and state power are resolved in favor of the central government. Powers not assigned to the national government are “reserved” for the states by the Tenth Amendment. grand jury

A panel of 12–23 citizens who review prosecutorial evidence to deter-

mine if there are sufficient grounds to formally accuse an individual of criminal conduct. The charges a grand jury issues are contained in a document called an indictment. habeas corpus

Latin for “you have the body.” Habeas corpus was a procedure in

English law designed to prevent the improper detention of prisoners. The habeas process forced jailers to bring a detained person before a judge who would examine the justification for his or her detention. If the court found the person was being improperly held, it could order the prisoner’s release by issuing a writ of habeas corpus. implied power

Authority that is possessed by inference from expressed provisions

of a constitution or statute. The intention is not manifested by explicit and direct words. The meaning is gathered by necessary deduction. Implied power is not conveyed by explicit language, but rather by implication or necessary deduction from circumstances, general language, or the conduct of parties. in re

Latin for “in the matter of.” The usual manner of entitling a judicial proceed-

ing in which there are no adversary parties as such, but some issue requiring judicial action. incorporation

Refers to the question of whether the federal Bill of Rights extends

as a limitation on state governments. The issue largely has been resolved, but several schools of thought on the matter have existed historically. The most sweeping position was that all of the Bill of Rights provisions connected to the states through the Due Process Clause of the Fourteenth Amendment. The clause prohibits a state from denying liberty without due process. Those advocating total incorporation viewed the term liberty as an all-inclusive shorthand for each of the rights enumerated in the Bill of Rights. A second opinion rejected any structural linkage of due process to the Bill of Rights and held simply that the Due Process Clause requires states to provide fundamental fairness. Due process is assessed under this standard by criteria of immutable principles of justice, or, as suggested by Justice Benjamin N. Cardozo in Palko v. Connecticut, 302 U.S. 319 (1937), elements that are “implicit in the concept of ordered liberty.” Application of such standards would occur on a case-by-case basis. The third opinion is a hybrid of the first two and is known as “selective” incorporation. The selective approach resembles the fundamental fairness position in that

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it does not view as identical those rights contained in the Bill of Rights and those rights fundamental to fairness. Unlike the fundamental fairness approach, however, the selective view holds that rights expressly contained in the Bill of Rights, if adjudged fundamental, are incorporated through the Fourteenth Amendment and are applicable at the state level regardless of the circumstances of a particular case. indictment

A written accusation presented by a grand jury to a court, charging

that a person has done some act or omission that by law is a punishable offense. injunction

An order prohibiting a party from acting in a particular way or requir-

ing a specific action by a party. An injunction allows a court to minimize injury to a person or group until the matter can otherwise be resolved, or it may prevent injury altogether. Failure to comply with an injunction constitutes a contempt of court. Once issued, an injunction may be annulled or quashed. An injunction may be temporary or permanent. Temporary injunctions, known as interlocutory injunctions, are used to preserve a situation until the issue is resolved through normal processes of litigation. A permanent injunction may be issued upon completion of full legal proceedings. judgment of the court

The final conclusion reached by a court—the outcome as

distinguished from the legal reasoning supporting the conclusion. judicial activism

An interventionist approach or role orientation for appellate

decision making that has the appellate courts playing an affirmative policy role. Judicial activists are inclined to find more constitutional violations than those who see a more restrained role for courts; activists are more likely to invalidate legislative and executive policy initiatives. Judicial activism is seen by its critics as legislating by justices to achieve policy outcomes compatible with their own social priorities. judicial notice

The act by which a court recognizes the existence and truth of cer-

tain facts. These facts are recognized by the court’s own initiative and not offered as evidence by either party. judicial review

The power of a court to examine the actions of the legislative and

executive branches with the possibility that those actions could be declared unconstitutional. The power of judicial review was discussed extensively at the Constitutional Convention of 1787, but it was not included in the Constitution as an expressly delegated judicial function. The Supreme Court first asserted the power of judicial review in Marbury v. Madison, 5 U.S. 137 (1803). judicial self-restraint

A view of appellate court decision making that minimizes

the extent to which judges apply their personal views to the legal judgments they ren-

Glossary

der. Judicial self-restraint holds that courts should defer to the policy judgments made by the elected branches of government. Jurisdiction defines the boundaries within which a particular court

jurisdiction

may exercise judicial power; it defines the power of a court to hear and decide cases. The jurisdiction of federal courts is provided in Article III of the Constitution in the case of the Supreme Court, and in acts of Congress in the case of the lower federal courts. Federal judicial power may extend to classes of cases defined in terms of substance and party as well as to cases in law and equity stemming directly from the federal Constitution, federal statutes, treaties, or those cases falling into the admiralty and maritime category. Federal judicial power also extends to cases involving specified parties. Regardless of the substance of the case, federal jurisdiction includes actions where the federal government itself is a party, between two or more states, between a state and a citizen of another state, between citizens of different states, between a state and an alien, between a citizen of a state and an alien, and where foreign ambassadors are involved. State constitutions and statutes define the jurisdiction of state courts. jurisprudence

A legal philosophy or the science of law. A term used to refer to the

course or direction of judicial rulings. Jurisprudence draws upon philosophical thought, historical and political analysis, sociological and behavioral evidence, and legal experience; it is grounded on the view that ideas about law evolve from critical thinking in a number of disciplines. Jurisprudence enables people to understand how law has ordered both social institutions and individual conduct. justiciable laissez-faire

A matter that may be appropriate for a court to hear and decide. An economic theory that advocates the government ought not inter-

fere with the dynamics of a free market economy—government should stay out of economic matters. Those subscribing to the laissez-faire view reject any form of government control or regulation of the economy. The decisions of the U.S. Supreme Court from the 1890s through 1937 frequently reflected laissez-faire values. legislative court

A court created by Congress under authority of Article I of the

U.S. Constitution. Legislative courts may be assigned administrative functions in addition to or instead of judicial functions. Such courts facilitate development of some level of specialization in a court system. Judges of federal legislative courts may be granted life tenure by Congress, but do not have the same level of protection as judges of Article III or constitutional courts. liberty of contract

A laissez-faire doctrine used to free private agreements from

governmental regulation. The liberty of contract concept holds that individuals have

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a right to assume contractual obligations affecting their personal affairs. This includes the right of employers and employees to agree about wages, hours, and conditions of work without government interference. The concept was a central element of substantive due process in which the courts closely examined the reasonableness of governmental regulations. The liberty of contract concept was used to strike down laws establishing minimum wages and maximum hours of work. litigant

A party to a lawsuit.

mandamus

Latin for “we command.” A writ issued by a court of superior jurisdic-

tion to an inferior court or governmental official commanding the performance of an official act. martial law

Military government established over a civilian population during an

emergency. Under martial law, military decrees supersede civilian laws and military tribunals replace civil courts. Martial law can be invoked by the president when necessary for the security of the nation. State governors, as commanders in chief of state militias, may declare martial law during an emergency occasioned by internal disorders or natural disasters. motion

A request made to a court for a certain ruling or action.

natural law

Laws considered applicable to all persons because they are basic to

human nature. Applies to all nations and people; contrasts with positive law. naturalization

legal procedure by which an alien is admitted to citizenship. Con-

gress is authorized by Article I, Section 8 of the Constitution to establish uniform rules for naturalization. An individual over eighteen years of age may be naturalized after meeting certain qualifications. These include: (1) residence in the United States for five years; (2) ability to read, write, and speak English; and (3) proof of good moral character. The residence requirement is lowered for spouses of citizens and for aliens who serve in the armed services. Minors become citizens when their parents are naturalized. Nineteenth Amendment

Extended the right to vote to women. The amendment

was ratified in August 1920. obiter dictum

Latin for “A remark by the way.” Dicta are statements contained in

a court’s opinion that are incidental to the disposition of the case. Obiter dicta often are directed to issues upon which no formal arguments have been heard; thus the positions represented in dicta are not binding on later cases. opinion of the court

The statement of a court that expresses the reasoning or

ratio decidendi upon which a decision is based. The opinion summarizes the princi-

Glossary

ples of law that apply in a given case and represents the views of the majority of a court’s members. Occasionally the opinion of a court may reflect the views of less than a majority of its members and is then called a plurality opinion. order

A written command issued by a judge. The authority of a court to hear and decide a legal question

original jurisdiction

before any other court. Original jurisdiction typically is vested with trial courts rather than appellate courts, although Article III of the Constitution extends very limited original jurisdiction to the U.S. Supreme Court. Trial courts are assigned specific original jurisdiction, defined in terms of subject matter or party. Latin for “by the court.” An unsigned written opinion issued

per curiam opinion by a court. petitioner plaintiff

A party seeking relief in court. The party who brings a legal action to court for resolution or remedy.

plurality opinion

An opinion announcing a court’s judgment and supporting rea-

soning in a case, but which is not endorsed by a majority of the justices hearing the case. police power

Authority that empowers government to regulate private behavior in

the interest of public health, safety, and general welfare. In the American constitutional system, police power resides with the state and not the federal government. The police power enables states and their respective local units of government to enact and enforce policies deemed appropriate to serve the public good. It is a comprehensive power, and substantial discretion is possessed by the states for its exercise. It is limited by various provisions of the U.S. Constitution and state constitutions, however, and must conform to the requirements of due process. political question

An issue that is not justiciable or that is not appropriate for

judicial determination. A political question is one in which the substance of an issue is primarily political or involves a matter directed toward either the legislative or executive branch by constitutional language. The political question doctrine is sometimes invoked by the Supreme Court, not because the Court is without power or jurisdiction but because the Court adjudges the question inappropriate for judicial response. In the Court’s view, to intervene or respond would be to encroach upon the functions and prerogatives of one of the other two branches of government. preemption doctrine

Holds that federal laws supersede or preempt state laws in

certain policy areas. The preemption doctrine is grounded in the Supremacy Clause of Article VI and applies where the federal regulatory interest is so dominant or pervasive

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as to allow no reasonable inference and where no room is left for states to act. Congress may state explicitly such a preemptive interest, or the courts may interpret the intent of Congress fully to occupy the field. prior restraint

A restriction placed on a publication before it can be published or

circulated. Prior restraint typically occurs through a licensure or censorship process or by a full prohibition on publication. Censorship requirements involve a review of materials by the state for objectionable content. Prior restraint poses a greater threat to free expression than after-the-fact prosecution because government restrictions are imposed in a manner that precludes public scrutiny, and the First Amendment prohibits prior restraint in most instances. Prior restraint may be justified, however, if the publication threatens national security, incites overthrow of the government, is obscene, interferes with the private rights of others, or is otherwise heavily suspect. procedural due process

Fundamental fairness in the means by which govern-

mental actions are executed. Procedural due process demands that before any deprivation of liberty or property can occur, a person must be formally notified and provided an opportunity for a fair hearing. Procedural due process must also be accorded persons accused of crimes, including access to legal counsel, the ability to confront witnesses against the accused, and a trial by jury. recusal

The process by which a judge is disqualified from participating in the hear-

ing or review of a case. Disqualification may be initiated by a party(ies) to a case or by the judge himself or herself when a judge’s participation might be inappropriate because of self-interest or bias. remand

To send a case back to an inferior court for additional action. Appellate

courts send cases back to lower courts with instructions to correct specified error. removal jurisdiction

The power to transfer a cause, before trial or final hearing,

from one court to another. republicanism (Guaranty Clause)

Government by representatives chosen by

the people. A republic is distinguished from a pure democracy where the people make policy decisions themselves rather than through an elected representative. Article IV, Section 4 of the Constitution provides that the national government shall guarantee to each state a “republican form of government.” respondent

The party against whom a legal action is filed.

restrictive covenants

Private agreements that place restrictions on the buying

and selling of real estate. These were used in the late nineteenth century and the first

Glossary

half of the twentieth century to create segregated neighborhoods. They were particularly common in areas where segregation was not sanctioned by state action. reverse

An action by an appellate court setting aside or changing a decision of a

lower court. The opposite of affirm. right

A power or privilege to which a person is entitled. A right is legally conveyed

by a constitution, statutes, or common law. A right may be absolute, such as one’s right to believe, or it may be conditional so that the acting out of one’s beliefs will not injure other members of a political community. ripeness

A condition in which a legal dispute has evolved to the point where the

issue(s) it presents can be determined by a court. Ripeness is an issue that requires a court to consider whether a case has matured or developed into a controversy worthy of adjudication. secondary boycott

An agreement by individuals or members of a group not to

purchase the product or services against whose provider a strike is in progress. The purpose is to show support for the striking group and to bring pressure on the business to negotiate a settlement of the dispute. separation of powers

The principle of dividing the powers of government among

several coordinate branches to prevent excessive concentration of power. The principle of separation of powers is designed to limit abusive exercise of governmental authority by partitioning power and then assigning that power to several locations. The distribution of powers embodied in the U.S. Constitution functionally distinguishes between government and people, and between legislative, executive, and judicial branches. Although the Constitution creates three separate branches, it also assigns overlapping responsibilities that make the branches interdependent through the operation of a system of checks and balances. sovereignty

The supreme power of a state or independent nation free from exter-

nal interference. Sovereignty is exercised by government, which has exclusive and absolute jurisdiction within its geographical boundaries. standing

The requirement that a real dispute exists between the prospective par-

ties in a lawsuit before it can be heard by a court. As a result, courts typically are unable to respond to hypothetical questions. If a party does not have standing to sue, the matter is not justiciable. stare decisis

Latin for “let the decision stand.” Stare decisis holds that once a prin-

ciple of law is established for a particular fact situation, courts should adhere to that principle in similar cases in the future. The case in which the rule of law is established

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is called a precedent. Stare decisis creates and maintains stability and predictability in the law. Precedents may be modified or abandoned if circumstances require, but the expectation is that rules from previously adjudicated cases will prevail. state action

An action taken by an agency or official of government. The state

action concept is used to determine whether an action complained of has it source in state authority or policy. The concept is critically important in cases presenting allegations of discrimination. The Equal Protection Clause typically cannot be applied to private acts of discrimination. Rather, it requires conduct that occurs “under color” of governmental authority. stay

To stop, suspend, or hold in abeyance.

substantive due process

Fundamental fairness in the content or substance of

government policy. Substantive due process review requires courts to examine the reasonableness of legislative enactments—that laws be fair and reasonable in substance as well as application. Substantive due process is distinguished from procedural due process. summary judgment

A decision by a court made without a full hearing or without

receiving briefs or oral arguments. Supremacy Clause

Provision in Article VI of the U.S. Constitution, which states

that the federal Constitution, laws, and treaties made under the authority of the United States are supreme over state actions, and that state judges are bound thereby, regardless of any conflicting provisions in their state constitutions. taxing power

Article I, Section 8 of the U.S. Constitution permits Congress to “lay

and collect taxes, duties, imposts and excises” and to provide for the “common defense and general welfare” of the United States. The scope of federal power to tax and spend has depended, at least in part, on the Court’s interpretation of the “general welfare” phrase. Tenth Amendment

Provision added to the U.S. Constitution in 1791 that retains or

“reserves “ for the states powers not assigned to the federal government. The Tenth Amendment has frequently been used to limit the actions of the federal government. Twenty-first Amendment

Repealed the Eighteenth Amendment, which had pro-

hibited the manufacture, sale, transportation, importation, or exportation of intoxicating liquors. The amendment authorized the states to regulate intoxicating liquors as they wished. The amendment was ratified in December 1933. vacate

To void, rescind, annul, or render void.

Glossary

vested right A right that so completely applies to a person that it cannot be impaired by the act of another person. Such rights must be recognized and protected by the government. warrant

A judicial order authorizing an arrest or search and seizure.

writ A written order of a court commanding the recipient to perform certain specified acts. yellow-dog contracts Agreements that employers in the late nineteenth and early twentieth centuries sometimes required prospective employees to sign, promising not to engage in union activity during the time they were working for the business in question.

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Annotated Bibliography

Abraham, Henry J. Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Clinton. New York: Rowman and Littlefield, 1999. Discusses the politics and other considerations involved in appointment of Supreme Court justices. Evaluates the work of the justices in light of the expectations of the presidents who nominated them. Abrams, Richard M. “Charles Evans Hughes.” In Melvin I. Urofsky, ed., The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing, 1994, pp. 235–245. Focuses on Hughes’s judicial career, including his two periods of service on the Supreme Court, and evaluates his efforts to stay true to his conservative political and constitutional philosophy, while at the same time supporting such important new trends as the expansion of protection for civil liberties. Baer, Judith A. “Edward Douglass White.” In Melvin I. Urofsky, ed., The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing, 1994, pp. 525–531. Evaluates White as a successful leader of the Court in his own time and credits him with major achievements in the development of the “rule of reason” and emphasis on dual federalism. Bartee, Alice Fleetwood. “William Rufus Day.” In Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, 1992, pp. 220–221. Discusses Day’s service on the Court, particularly his important decisions. Highlights his support for national antitrust regulation and his preference for state over federal regulation in many areas. Belknap, Michal R. “Mr. Justice Pitney and Progressivism.” Seton Hall Law Review 16 (1986): 381–426. Rejects the commonly held views that Pitney was antilabor and a tool of conservative capitalists. Argues that his decisions reflected the Progressive political philosophy of the period during which he served. Beth, Loren. John Marshall Harlan: The Last Whig Justice. Lexington: University Press of Kentucky, 1992. Considers Harlan’s life and background and concludes that his decisions were consistently based on his longtime philosophy of Whig nationalism.

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Bickel, Alexander M. “Mr. Taft Rehabilitates the Court.” Yale Law Journal 79 (November 1969): 1–45. Argues that Taft’s nominees brought few changes to the prevailing attitude and doctrine of the Court they joined. Taft chose younger men who could shoulder the load. Describes the political factors that influenced his choices. Bickel, Alexander M., and Benno C. Schmidt Jr. History of the Supreme Court of the United States. Volume IX: The Judiciary and Responsible Government, 1910–1921. New York: Macmillan, 1984. In the first part of this work, Professor Bickel discusses the composition of the White Court and its work on the rule of reason, social legislation, and administrative law. In the second portion, Professor Schmidt focuses on the work of the White Court on Jim Crow policies and other civil rights issues. Blaustein, A. P., and R. M. Mersky. The First One Hundred Justices: Statistical Studies on the Supreme Court of the United States. Hamden, CT: Archon Books, 1978. Presents a statistical analysis of the work of the first one hundred justices to serve on the Supreme Court, including a rating of their effectiveness, as well as a statistical analysis of the 34,000 opinions they produced. Bond, James E. I Dissent: The Legacy of Chief Justice James Clark McReynolds. Fairfax, VA: George Mason University Press, 1992. (“Chief Justice” is a misprint.) An attempt to rebut the numerous criticisms of McReynolds, both as a justice and as an individual. Concludes the criticisms are not warranted. Argues that McReynolds acted out of courage and conviction. Boyer, Paul S., et al., eds. The Oxford Companion to United States History. New York: Oxford University Press, 2001. A comprehensive encyclopedia with entries covering all aspects of U.S. history. Incorporates up-to-date scholarship on the topics covered. Bringhurst, Bruce. Antitrust and the Oil Monopoly: The Standard Oil Cases, 1890–1911. Westport, CT: Greenwood Press, 1979. Uses a case study of the Standard Oil suit to analyze the attempted enforcement of antitrust legislation and to suggest reasons why the legislation was not successful in protecting competition and restricting corporate power. Burner, David. “James C. McReynolds.” In Leonard M. Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court, 1789–1995: Their Lives and Major Opinions. 5 vols. New York: Chelsea House, 1997, pp. 2023–2033. Argues that McReynolds was conservative to the point of being reactionary, an attitude exhibited throughout his Supreme Court career. ———. “John H. Clarke.” In Leonard M. Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court, 1789–1995: Their Lives and Major Opinions. 5 vols. New York: Chelsea House, 1997, pp. 2077–2087. Discussion of

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Clarke’s devotion to progressivism and its influence on his work as a member of the Supreme Court. Argues that he was less liberal on civil liberties issues. ———. “Willis Van Devanter.” In Leonard M. Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court, 1789–1995: Their Lives and Major Opinions. 5 vols. New York: Chelsea House, 1997, pp. 1945–1953. Describes both Progressive and conservative tendencies exhibited in Van Devanter’s Supreme Court opinions and his reactionary position in response to the New Deal in the 1930s. Chafee, Zechariah, Jr. Free Speech in the United States. Cambridge, MA: Harvard University Press, 1954. A classic treatise on the subject of free speech produced in response to the restrictions placed on this right by the Congress during World War II. Analyzes the Court’s opinions in key cases on the subject. Influential in the thinking of Holmes and later justices who dealt with issues related to free speech. Cohen, J. Congress Shall Make No Law: Oliver Wendell Holmes, the First Amendment, and Judicial Decisionmaking. Ames: Iowa State University Press, 1989. Using the Schenck case as an example, this work analyzes the judicial process and its influence on First Amendment interpretation at the end of World War I. It also discusses Holmes’s role, and how he came to write the opinion he did. Currie, David P. The Constitution in the Supreme Court: The Second Century, 1886–1986. Chicago: University of Chicago Press, 1990. Analyzes the work of the Courts from a strictly legal perspective. Argues that the Constitution should not be interpreted to support judicial activism. Cushman, Barry. “John Hessin Clarke.” In Melvin I. Urofsky, ed., The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing, 1994, pp. 121–122. Focuses almost entirely on Clarke’s work on the Court and his positions in the major cases decided during his tenure. ———. “Mahlon Pitney.” In Melvin I. Urofsky, ed., The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing, 1994, pp. 355–356. Emphasizes the reasons for Pitney’s reputation as an antilabor judge, as reflected in major opinions he authored. Cushman, Clare, ed. The Supreme Court Justices: Illustrated Biographies, 1789–1993. Washington, DC: Congressional Quarterly, 1993. Dinnerstein, Leonard. “Joseph Rucker Lamar.” In Leonard M. Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court, 1789–1995: Their Lives and Major Opinions. 5 vols. New York: Chelsea House, 1997, pp. 1973–1989. Describes Lamar’s support of federal and state regulation of business, his support of civil liberties, and his approval of the development of administrative law.

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Epstein, Lee, Jeffrey A. Segal, Harold J. Spaeth, and Thomas G. Walker. The Supreme Court Compendium: Data, Decisions, and Developments. 2d ed. Washington, DC: Congressional Quarterly, 1996. A compilation and statistical analysis of data concerning the Court and its decisions. Looks at characteristics of opinions and makes comparisons between the work of different Courts. Filler, Louis. “John M. Harlan.” In Leonard M. Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court, 1789–1995: Their Lives and Major Opinions. 5 vols. New York: Chelsea House, 1997, pp. 1281–1295. An analysis of Harlan’s major opinions as a member of the Supreme Court, focusing particularly on his historic dissents and their impact in the future. Finkelman, Paul, ed. Race, Law, and American History, 1770–1990. Vol. 4, The Age of Jim Crow: Segregation from the end of Reconstruction to the Great Depression. New York: Garland Publishing, 1992. This volume reprints a collection of scholarly articles dealing with the development of de jure segregation and the Supreme Court decisions that supported that development. Frankfurter, Felix. Mr. Justice Holmes and the Supreme Court. Cambridge, MA: Harvard University Press, 1938. A classic treatment of Holmes’s significant contributions as a member of the Court, from the perspective of a longtime friend and correspondent. Friedman, Leonard M., and Fred L. Israel, eds. The Justices of the United States Supreme Court, 1789–1995: Their Lives and Major Opinions. 5 vols. New York: Chelsea House, 1997. The short biographies in this directory focus on each justice’s major opinions and the underlying legal and constitutional philosophies that they reflect. Freund, Paul A. “Oliver Wendell Holmes.” In Leonard M. Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court, 1789–1995: Their Lives and Major Opinions. 5 vols. New York: Chelsea House, 1997, pp. 1755–1762. Biographical sketch focusing more on Holmes’s intellectual life, with references to its influence on his judicial work. Funston, Richard Y. “Edward Douglass White.” In Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, 1992, pp. 927–928. Focuses primarily on White’s contributions in developing the doctrine of incorporation and the rule of reason. Green, William Crawford. “Willis Van Devanter.” In Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, 1992, pp. 894–895. Focuses on Van Devanter’s most important Supreme Court opinions, particularly those that reflect his conservatism and his support for limited government. Hall, Kermit L., ed. The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, 1992. A one-volume encyclopedia of

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entries on important topics related to the Supreme Court, including biographies of justices, summaries of important opinions, and descriptions of significant issues with which the Court has dealt. Hamm, Richard F. “Joseph McKenna.” In Melvin I. Urofsky, ed., The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing, 1994, pp. 289–290. Argues that McKenna’s arguments and legal reasoning in his opinions were inconsistent, a result of his inadequate preparation to assume such a position. ———. Shaping the Eighteenth Amendment: Temperance Reform, Legal Culture, and the Polity, 1880–1920. Chapel Hill: University of North Carolina Press, 1995. A solid treatment of the efforts of the prohibitionists in achieving their goal of nationwide prohibition. ———. “William Rufus Day.” In Leonard M. Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court, 1789–1995: Their Lives and Major Opinions. New York: Chelsea House, 1997, pp. 1773–1789. Focuses on Day’s emphasis on a broad interpretation of the commerce power and on support for state Progressive reform legislation. Hendel, Samuel. “Charles Evans Hughes.” In Leonard M. Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court, 1789–1995: Their Lives and Major Opinions. 5 vols. New York: Chelsea House, 1997, pp. 1893–1915. A detailed discussion of Holmes’s decisions in major cases during his two terms on the Supreme Court and his struggle to reconcile his traditionally conservative views with the needs of an increasingly modernizing era. ———. Charles Evans Hughes and the Supreme Court. New York: Columbia University Press, 1951. Focuses on Hughes’s two periods of service on the U.S. Supreme Court and the contributions he made during those periods to the Court’s development of judicial doctrine. Highsaw, Robert B. Edward Douglass White: Defender of the Conservative Faith. Baton Rouge: Louisiana State University Press, 1981. Focuses on White’s political career in Louisiana and his twenty-seven years on the Supreme Court, highlighting his leadership as chief justice and the contributions to constitutional law he made with his major opinions. Israel, Fred L. “Mahlon Pitney.” In Leonard M. Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court, 1789–1995: Their Lives and Major Opinions. 5 vols. New York: Chelsea House, 1997, pp. 2001–2009. Focuses on Pitney’s antilabor opinions and his support for freedom of contract. Also notes his support for civil liberties. Kelly, Alfred H., Winifred A. Harbison, and Herman Belz. The American Constitution: Its Origins and Development. 7th ed. New York: W. W. Norton, 1991. A comprehensive text on major topics in U.S. constitutional history.

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Kens, Paul. “Horace Harmon Lurton.” In Melvin I. Urofsky, ed., The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing, 1994, pp. 287–288. Describes Lurton as a “consummate professional judge,” whose opinions were always consistent with his conservative political philosophy. ———. “Joseph Rucker Lamar.” In Melvin I. Urofsky, ed., The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing, 1994, pp. 281–282. Brief evaluation of Lamar’s work as a Supreme Court justice, including his support for federal regulatory legislation and his ambivalence on issues of civil rights. Klinkhamer, Sister Marie Carolyn O. P. Edward Douglass White, Chief Justice of the United States. Washington, DC: Catholic University of America Press, 1943. Analyzes White’s Supreme Court opinions in the context of the period in which he served. Treatment is divided by topics, such as administrative law, due process, and so on. Langum, David J. Crossing over the Line: Legislating Morality and the Mann Act. Chicago: University of Chicago Press, 1994. Provides a history of the Mann Act and its enforcement from its passage to the 1960s. Links its use to broader themes in U.S. culture and discusses problems with this kind of social legislation and the collateral results of its enforcement. Lieberman, Jethro K. A Practical Companion to the Constitution: How the Supreme Court Has Ruled on Issues from Abortion to Zoning. Berkeley: University of California Press, 1999. A compendium of major topics that the Supreme Court has dealt with during its existence, explained clearly in layman’s terms. Link, Arthur S. Woodrow Wilson and the Progressive Era, 1910–1917. New York: Harper and Brothers, 1954. Survey of the history, political and diplomatic, of the United States in the period 1910–1917, and Wilson’s role in it. Martin, Fenton S., and Robert U. Goehlert. The United States Supreme Court: A Bibliography. Washington, DC: Congressional Quarterly, 1990. An extensive bibliography on all aspects of the Court and its work, including sections on each individual justice. Mason, Alpheus Thomas. “Louis D. Brandeis.” In Leonard M. Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court, 1789–1995: Their Lives and Major Opinions. 5 vols. New York: Chelsea House, 1997, pp. 2043–2059. An evaluation of Brandeis’s entire career, with particular focus on, and extensive quotes from, his most important Supreme Court opinions. Matsuda, Mari J. “Charles Evans Hughes.” In Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, 1992, pp. 414–416. Describes highlights of Hughes’s political career before discussing his contributions as an independent and fair-minded chief justice of the U.S. Supreme Court.

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McDevitt, Brother M. Joseph McKenna: Associate Justice of the United States. New York: Da Capo Press, 1974. A basic biography that makes the most of the skimpy material the author found available on McKenna’s life and career. McKenna, Marian C. “Joseph McKenna.” In Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, 1992, pp. 539–540. Brief description of McKenna’s legal and judicial career, including highlights of his significant opinions. McLean, J. E. William Rufus Day: Supreme Court Justice from Ohio. Baltimore: Johns Hopkins University Press, 1946. Based primarily on research in the official reports of the Supreme Court, this work focuses on Day’s major opinions and the ways in which they reflect both his own convictions and those of the people of the times. Mennel, Robert M., and Christine L. Compson, eds. Holmes and Frankfurter: Their Correspondence, 1912–1934. Hanover: University of New Hampshire Press, 1996. This long correspondence offers insights into the thinking of both men on the law, the courts, and the Constitution. Shows how the exchanges influenced both men’s work. Mowry, George E. Theodore Roosevelt and the Progressive Movement. New York: Hill and Wang, American Century Series, 1960. Discussion of Theodore Roosevelt’s involvement in the Progressive movement, including both how he helped to shape it and how it influenced him. Focuses primarily on his presidency and the years following, including his influence on the Taft and Wilson administrations. Murphy, Paul L. The Constitution in Crisis Times, 1918–1969. New York: Harper and Row, 1972. Discusses the major issues and developments during the period and how interpretation of the Constitution evolved to meet the changing needs of the period. ———. World War I and the Origin of Civil Liberties in the United States. New York: W. W. Norton, 1979. Describes the events in World War I that led to the development of a civil liberties movement in the United States in the decades that followed. Novick, Sheldon M. “Oliver Wendell Holmes, Jr.” In Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, 1992, pp. 405–410. Describes Holmes’s Civil War service and his legal and scholarly work before joining the judiciary. Explains Holmes’s strengths in the area of constitutional law, including important decisions and dissents as a member of the U.S. Supreme Court. Orth, John V. “Horace Harmon Lurton.” In Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, 1992, pp. 514–515. Describes his short career as a Supreme Court justice, indicating that he wrote no significant opinions.

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———. “John Marshall Harlan.” In Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, 1992, pp. 361–363. Describes Harlan’s background as a member of a Kentucky slaveholding family before his decision to support the Union in the Civil War. Discusses major factors that have prompted historians to reevaluate his record as a Supreme Court justice. Polenberg, Richard. Fighting Faiths: The Abrams Case, the Supreme Court, and Free Speech. New York: Viking, 1987. A discussion of the lives of the radicals in the early twentieth century whose activities helped to lay the groundwork for the Abrams case and the issues it raised. Posner, Richard A., ed. The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions, and Other Writings of Oliver Wendell Holmes, Jr. Chicago: University of Chicago Press, 1992. Presents a selection of Holmes’s writings, grouped by genre, that provide insights into his intellectual efforts, his influence on the law, and his interpretation of the Constitution. Not intended to be a representative sample of his writings. Pratt, Walter F., Jr. The Supreme Court under Edward Douglass White, 1910–1921. Columbia: University of South Carolina Press, 1999. In a term-by-term approach, discusses the important decisions of the White Court, arguing that the justices during this period made a significant contribution to U.S. constitutional law. Przybyszewski, Linda C. A. “John Marshall Harlan.” In Melvin I. Urofsky, ed., The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing, 1994, pp. 205–214. Emphasizes Harlan’s devotion to nationalism, his forward-looking position on issues related to race, and his devotion to the Commerce Clause. Rabban, David M. Free Speech in Its Forgotten Years. Cambridge, UK: Cambridge University Press, 1997. Argues that a vigorous free speech tradition developed between the Civil War and World War I. This helped to lay the groundwork for the development of the civil liberties movement in the years following World War I. Ragan, Fred. “Justice Oliver Wendell Holmes, Jr., Zechariah Chafee, Jr., and the Clear and Present Danger Test for Free Speech: The First Year: 1919.” Journal of History 58 (June 1971): 24–45. Discusses the relationship between these two men in this critical year and the ways in which Chafee influenced Holmes’s thinking on constitutional protection of free speech. Ross, William G. A Muted Fury: Populists, Progressives, and Labor Unions Confront the Supreme Courts, 1890–1937. Princeton, NJ: Princeton University Press, 1994. This work analyzes the arguments of three major groups who campaigned for judicial reform in the late nineteenth and early twentieth centuries.

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It concludes that a variety of factors helped to mute the criticisms of these groups and to make them less effective than they might have been. Scheb, John M., II. “James Clark McReynolds.” In Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, 1992, pp. 542–543. Focuses primarily on McReynolds’s record as one of the Four Horsemen during the administration of Franklin D. Roosevelt. Semonche, John E. Charting the Future: The Supreme Court Responds to a Changing Society, 1890–1920. Westport, CT: Greenwood Press, 1978. Describes the work of the Court in this period in the context of the major events of the times, arguing that its effect was to adapt the Constitution to the continuing modernization that was occurring during the period. Shoemaker, Rebecca Shepherd. “Willis Van Devanter.” In Melvin I. Urofsky, ed., The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing, 1994, pp. 485–487. Evaluates Van Devanter’s record in terms of his reputation as a conservative and as a member of the “Four Horsemen” in the 1930s. Soifer, Aviam. “John Hessin Clarke.” In Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, 1992, pp. 156–157. Details Clarke’s career as a moderate Progressive, both in politics and in his work on the Court, plus his early retirement to work in pursuit of world peace. Stenzel, Robert David. “Mahlon Pitney.” In Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, 1992, pp. 635–636. Describes Pitney’s conservative support for liberty of contract and opposition to any interference with property rights. Stid, Daniel D. The President as Statesman: Woodrow Wilson and the Constitution. Lawrence: University Press of Kansas, 1998. Focuses on Wilson’s philosophy, particularly as expressed in his written works, and how he brought it to bear in his political career, particularly during his presidency. Also discusses ways in which his ideas and goals were altered by the principles of the Progressive movement. Strum, Philippa. Brandeis: Beyond Progressivism. Lawrence: University Press of Kansas, 1993. Focuses on Brandeis’s political thought, including his beliefs in the need for both political and economic liberty, importance of citizenship, and civic duty. ———. Louis D. Brandeis: Justice for the People. Cambridge, MA: Harvard University Press, 1984. A solid biography with analysis of the many issues and factors that influenced Brandeis’s legal and intellectual growth and development. ———. “Louis Dembitz Brandeis.” In Melvin I. Urofsky, ed., The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing, 1994, pp.

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38–48. An analysis of Brandeis’s major Supreme Court opinions, the philosophy that guided them, and their subsequent impact. Timberlake, James H. Prohibition and the Progressive Movement, 1900–1920. Cambridge, MA: Harvard University Press, 1963. A discussion of the relation between these two reform efforts and the ways in which they influenced each other. Tomlins, Christopher L. The State and the Unions: Labor Relations, Law and the Organized Labor Movement in America, 1880–1960. New York: Cambridge University Press, 1985. A discussion of the development of the relationship between labor and political systems during the period. Also discusses the impact of the passage of various federal laws on that relationship. Tucker, David M. “Justice Horace Harmon Lurton: The Shaping of a National Progressive.” American Journal of Legal History 13 (July 1969): 223–232. Evaluation of the influence of the major principles of the Progressive movement on the thinking and judicial work of Justice Lurton. Urofsky, Melvin I. “Louis D. Brandeis.” In Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, 1992, pp. 83–85. Discussion of the major contributions Brandeis made in the various phases of his career. Emphasizes his important work in expanding the interpretation of the Constitution and describes his strong opinions on the nature of the Court as an institution. Rates him as one of the great Supreme Court justices. ———. Louis D. Brandeis and the Progressive Tradition. Boston: Little, Brown, 1981. Analysis of the influence of the career of Brandeis, as attorney and Supreme Court justice, on the development of major elements of the Progressive movement. Urofsky, Melvin I. ed. The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing, 1994. A collection of brief biographies of the justices of the Supreme Court. Focuses primarily on their judicial careers and evaluates the importance of their contributions. Vaughn, Stephen. Holding Fast the Inner Lines: Democracy, Nationalism, and the Committee on Public Information. Chapel Hill: University of North Carolina Press, 1980. A balanced treatment of the nation’s first major propaganda agency. Argues that the committee was staffed by many good people and that it made contributions toward preserving the principles of democracy and nationalism during World War I. Vose, Clement E. “State against Nation: The Conservation Case of Missouri v. Holland.” Prologue 16 (Winter 1984): 233–247. Argues for the importance of the Missouri decision in establishing the dominance of treaties in conservation

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matters. Set precedent that prevented states from challenging such treaties in the future. Warner, Hoyt L. Life of Mr. Justice Clarke: A Testament to the Power of Liberal Dissent in America. Cleveland: Western Reserve University Press, 1959. Basic biography of Justice Clarke and an analysis of his major contributions during his years on the Supreme Court. Watts, James F., Jr. “Edward Douglass White.” In Leonard M. Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court, 1789–1995: Their Lives and Major Opinions. New York: Chelsea House, 1997, pp. 1633–1657. Describes the trend of White’s opinions in some areas as erratic, but rates him highly for his development of the “rule of reason.” ———. “Horace H. Lurton.” In Leonard M. Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court, 1789–1995: Their Lives and Major Opinions. New York: Chelsea House, 1997, pp. 1847–1863. Discusses the influence of Lurton’s background and his conservative philosophy on his work as a Supreme Court justice. ———. “Joseph McKenna.” In Leonard M. Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court, 1789–1995: Their Lives and Major Opinions. New York: Chelsea House, 1997, pp. 1719–1735. Describes McKenna’s legal philosophy as inconsistent, as reflected in the major opinions he wrote during his years on the Court. ———. “William Rufus Day.” In Leonard M. Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court, 1789–1995: Their Lives and Major Opinions. New York: Chelsea House, 1997, pp. 1773–1789. A balanced account of Day’s career, including his service in the McKinley administration and his service on the Supreme Court, during which he developed his thinking in support of the use of the rule of reason to break up business monopolies. White, G. Edward. Justice Oliver Wendell Holmes: Law and the Inner Self. New York: Oxford University Press, 1993. This is an investigation into Holmes the man, his personality, and the ways in which these influenced his work as an intellectual and as a judge. ———. “Oliver Wendell Holmes, Jr.” In Melvin I. Urofsky, ed., The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing, 1994, pp. 224–234. An analysis of the political and constitutional philosophy that guided Holmes’s decision making as a member of the Court, illustrated with commentary on major opinions. Winkle, John W., III. “Joseph Rucker Lamar.” In Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, 1992, pp. 493–494. Brief account of Lamar’s career as a lawyer and

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attorney in Georgia. Highlights his significant Supreme Court opinions, but describes his tenure as “unremarkable.” Wolf, Michael Allen. “James Clark McReynolds.” In Melvin I. Urofsky, ed., The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing, 1994, pp. 296–300. Describes McReynolds’s opposition to Progressive reform and his consistent conservative support for the interests of property. Characterizes his actions in both private and public life as enigmatic. Wood, Stephen B. Constitutional Politics in the Progressive Era: Child Labor and the Law. Chicago: University of Chicago Press, 1968. Discusses Progressive reform efforts to regulate child labor and the laws that were made as a result. Yarbrough, T. E. Judicial Enigma: The First Justice Harlan. New York: Oxford University Press, 1992. Focuses on the complexities of Harlan’s personality and the many factors in his personal life that influenced his work and his career. Argues that his greatest legacy was his influence on Thurgood Marshall and other civil rights leaders.

Index

Abrams v. United States, 46, 50, 55, 100, 155–156, 192, 205, 212, 236, 264 Act to Authorize the Entry and Patenting of Lands Containing Petroleum and Other Mineral Oils, 164 Adair v. United States, 9, 45, 49, 83, 138, 176, 211 Adamson Act. See Adamson Eight-Hour Day Law Adamson Eight-Hour Day Law, 84, 100, 136, 180, 203–204, 262, 263 Adkins v. Children’s Hospital, 53 Administrative discretion doctrine, 7, 14, 43, 74, 122, 195, 204–205, 232 Agricultural Adjustment Act, 66, 80, 90 Aldrich, Nelson, 20 Aldridge v. United States, 89 Allanwilde Transportation Corp. v. Vacuum Oil Co., 148 Allgeyer v. Louisiana, 8 American Civil Liberties Union (ACLU), 194, 214 American Column and Lumber Co. v. United States, 94, 99 American Federation of Labor (AFL), 137, 176, 207, 217–218 American Zionist movement, 96 American-German War Claims Commission, 60 Arizona Employers’ Liability Cases, 49 Armour Packing Co. v. United States, 58, 211 Ashwander v. Tennessee Valley Authority, 90

B. Altman Co. v. United States, 159–160 Bacon, A. O., 24 Bad tendency doctrine, 205–206 Bailey v. Alabama (1911), 54, 63, 71, 139, 185, 224, 260 Bailey v. Drexel Furniture Co., 54, 99, 179, 226 Baker, Newton D., 28, 97, 99 Baker v. Carr, 215 Baltimore and Ohio Railroad v. Interstate Commerce Commission, 63 Barron v. Baltimore, 192 Berea College v. Kentucky, 12, 40, 60 Berg v. British and African Steam Navigation Company, 148 Bering Sea Arbitration Tribunal, 40 Beveridge, Albert D., 225 Bituminous Coal Conservation Act. See Guffy-Snyder Coal Conservation Act Blatchford, Samuel (justice), 16 Block v. Hirsch, 153 Bosley v. McLaughlin, 135 Brandeis, Louis D., 18, 26–28, 29, 30, 31, 36, 48, 51, 55, 81, 84, 85, 88, 91–96, 99, 107, 132, 135, 139, 150–151, 157, 158, 163, 169, 180, 183, 192, 193, 214, 236, 240, 263 famous brief, 93 major opinions of , 95 pictured, 11, 92 productivity of, 93, 96 publication by, 93

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Brewer, David (justice), 22, 209 Brown, Henry Billings (justice), 21, 24 Brown v. Board of Education, 209, 224, 231 Brown v. Maryland, 128 Bryan, William Jennings, 22, 62, 78 Buchanan v. Warley, 60, 86, 100, 145, 186, 224, 230, 263 Bunting v. Oregon, 100, 135, 180, 214, 263 Burke v. Southern Pacific Railway, 79, 164 Burleson, Albert S., 100, 152, 157, 184, 206–207 Butler, Pierce, 80 Butler v. Perry,166 Butt, Archie, 24 Buttfield v. Stranahan, 14, 195, 204 Butts v. Merchants and Miners Transportation Co., 144 Byars v. United States, 193 Caminetti v. United States, 60, 182, 228, 262 Cardozo, Benjamin (justice), 26, 88, 214 Carter v. Carter Coal Company, 66 Chafee, Zechariah, Jr., 192, 205 Champion v. Ames, 12, 46, 127, 195, 216 Chicago Board of Trade v. United States, 94 Choate v. Tropp, 75 Cincinnati, New Orleans, and Texas Pacific Railway Co. v. Interstate Commerce Commission, 7, 121 Civil liberties, 40, 46, 50, 89, 109, 154–159, 190–194, 276 Civil Rights Act of 1875, 144, 223 Civil Rights Cases, 39, 144, 223 Clark Distilling Co. v. Western Maryland Railway, 183, 242 Clarke, John Hessin, 26, 28–29, 36, 58, 88, 97–101, 115, 119, 120, 156, 157, 262, 265 major opinions of, 99, 156 pictured, 11, 98 productivity of, 29

Clayton Anti-Trust Act, 10, 27, 71, 84, 94, 113, 118, 119, 137, 139, 171, 176–177, 198, 207, 217 Clear and present danger doctrine, 55, 191–192, 205 Cleveland, Grover, 3, 16, 41, 215 Commerce Clause, 5, 6, 9, 12, 14, 59, 63, 66, 84, 90, 131, 137, 174, 178, 182, 204, 211, 228, 276 Commerce Court, 23, 24, 124, 174, 228–229 Common law, 6, 8, 9, 44, 60, 66, 79, 130–131, 208, 276 Common Law, The (Holmes), 208 Comstock Acts, 191 Constitution, U. S. First Amendment, 53, 80, 85, 95, 138, 149, 156, 157, 188, 190–192, 205 Fourth Amendment, 95–96, 158, 193 Fifth Amendment, 189, 211 Sixth Amendment, 89, 189 Tenth Amendment, 58, 90, 160, 161, 179, 189, 226, 229, 286 Thirteenth Amendment, 36, 54, 140, 141–142, 149, 185 Fourteenth Amendment, 8, 14, 16, 54, 65, 95, 134, 140, 158, 186, 193 Fifteenth Amendment, 86, 142–143, 187, 224 Sixteenth Amendment, 79, 85, 261 Seventeenth Amendment, 14, 97, 232, 261 Eighteenth Amendment, 80, 150, 183, 196, 240, 264, 278 Nineteenth Amendment, 264, 265, 282 Twenty-first Amendment, 286 Consumers’ League, 93 Coppage v. Kansas, 45, 49, 59, 83, 138, 176, 212, 262 Corrigan v. Buckley, 230 Cox v. Wood, 188, 209, 237 Coyle v. Oklahoma, 70, 166 Cummins, Albert, 25 Dakota Central Telephone Company v. South Dakota, 152 Davis, David (justice), 38

Index

Davis, John W., 142, 209 Day, William Rufus (justice), 20–21, 36, 56–60, 69, 114, 116, 120, 125, 128, 130, 137, 142, 146, 148, 150, 158, 159–160, 172, 182, 193, 211, 219, 226, 235, 259, 265 major opinions of, 59 146 pictured, 8, 11, 57 productivity of, 21 Dayton–Goose Creek Railway v. United States, 174–175 De Jonge v. Oregon, 65 Debs, Eugene V., 100, 155, 209–210, 244 Debs v. United States, 50, 100, 155, 192, 210, 212 Debt peonage, 108, 140–142, 277 Degge v. Hitchcock, 74 Dickinson, Jacob M., 21 Dr. Miles Medical Co. v. John D. Park and Sons Co., 53, 117–118 Dual federalism doctrine, 43, 45, 58, 59 Duplex Printing Co. v. Deering, 84, 94, 139, 177, 198, 207, 217, 238 Eisner v. Macomber, 85 Elkins Act, 7, 122, 173, 210–211, 235 Elkins v. United States, 194 Employers’ Liability Cases, 79 Erdman Act, 138, 176, 211–212 Esch-Cummings Transportation Act, 222 Espionage Act, 46, 50, 54, 55, 85, 109, 154–157, 191–192, 206, 212, 263 Evans v. Gore, 79 Ex parte Peterson, 158 Exclusionary rule, 86, 158, 193, 278 Federal Employers’ Liability Act, 9, 29, 179 Federal police power, 4, 10, 14, 46, 50, 127, 137, 177–184, 195, 216, 235 Federal Power Commission, 264 Federal Reserve Act, 10, 27, 261 Federal Trade Commission, 88, 162–163, 171, 212–213, 262 Federal Trade Commission Act, 162–163 Federal Trade Commission v. Curtis Publishing Co., 213

Federal Trade Commission v. Gratz, 88, 162–163, 172, 213 Field, Stephen J. (Justice), 16, 18, 48 Field v. Clark, 14, 195, 204 First Employers’ Liability Cases, 9, 131 Florida East Coast Railway v. United States, 124 Forest Reserve Act, 74, 161 Four Horsemen, 23, 26, 89, 90 Frankfurter, Felix, 26, 96, 135, 213–215 Frazier-Lemke Act, 66, 80, 90, 95 Freedom of contract. See Liberty of contract doctrine Frohwerk v. United States, 155, 192, 212 Fuller Court, 5, 11, 12, 15, 32, 169, 173, 185–186, 191, 195, 216 Fuller, Melville W. (chief justice), 3, 14, 22, 93, 110, 138, 167, 215–216, 260 Garfield, Harry A., 227 German Alliance Insurance Company v. Lewis, 49, 74 Gibbons v. Ogden, 110 Gilbert v. Minnesota, 50, 95, 157, 192–193 Gitlow v. New York, 193, 265 Goldmark, Josephine, 93 Gompers, Samuel L., 69, 137, 176, 207, 217–218 Gompers v. Buck’s Stove and Range Co., 75, 138, 217–218 Grandfather clause, 60, 108, 142–143 Grandfather Clause Cases, 142 Gray, Horace (justice), 19 Grayson, Cary T., 27 Green v. Frazier, 59 Gregory, Thomas W., 27, 93 Guffy-Snyder Coal Conservation Act, 66, 80, 90 Guinn and Beal v. United States, 60, 86, 142, 187, 224, 230, 262 Hamilton v. Kentucky Distilleries, 150, 183, 264 Hammer v. Dagenhart, 12, 33, 45, 53, 54, 59, 99, 130, 179, 195, 209, 226, 232, 263

303

304

The White Court

Hanna, Mark, 20 Hapgood, Norman, 27 Harding, Warren G., 46, 64, 220, 265 Harlan, John Marshall (justice), 15, 24, 35–40, 83, 111, 113, 168, 170, 187, 211, 261 major opinions of, 12, 38, 39, 40 pictured, 8, 37 productivity of, 38 Harrison, Benjamin, 19, 48, 56, 76 Harrison Narcotic Drug Act, 129, 218–219 Hayes, Rutherford B., 15, 38 Helvering v. Davis, 90 Hennington v. Georgia, 40 Henry v. A. B. Dick Co., 70, 118 Hepburn Act, 7, 38, 45, 50, 59, 70, 74, 122, 125, 173, 219–220, 236, 259 Herndon v. Lowry, 65 Hipolite Egg Company v. United States, 46, 50, 70, 127, 181, 195, 253, 260 Hitchman Coal and Coke Co. v. Mitchell, 83, 84, 138, 176 Hoke v. United States, 46, 137, 179, 182, 228 Holden v. Hardy, 9, 180 Holmes, Oliver Wendell, Jr. (justice), 17, 19–20, 30, 31, 36, 51–55, 63, 85, 107, 111, 118, 120, 126, 129, 133, 137, 140, 141, 143, 147, 153, 155, 158, 160–161, 181, 191–192, 205–206, 210, 211, 226, 229, 233, 236, 259 major opinions of, 53, 54–55, 111 pictured, 8, 11, 52 productivity of, 51, 208 publications of, 51, 208 Home Building and Loan Association v. Blaisdell, 65, 80, 90 Hook, William C., 22, 24 Hoover, Herbert, 64, 80, 152, 220–221, 227, 243 House, Edward, 26, 27, 206 Houston, East and West Texas Railway Co. v. United States, 125, 174

Hughes, Charles Evans, 17, 18, 22, 28, 36, 44, 60–67, 97, 118, 124, 125, 129, 135, 144, 179, 186, 235, 260, 262 major opinions of, 63, 65, 66, 140 pictured, 8, 61 productivity of, 22, 64 Hurtado v. California, 40 Illinois Central Railroad Co. v. Interstate Commerce Commission, 7, 49, 122, 219 In re Debs, 9, 176, 209 Incorporation doctrine, 33, 43 Insular Cases, 17, 33, 40 Interstate Commerce Act, 6, 21, 25, 121–126, 161, 194, 204, 222, 259 Interstate Commerce Commission, 6, 7, 13, 38, 39, 45, 49, 58, 63, 70, 74, 85, 107, 121, 173–175, 211, 219, 221–223, 228 Interstate Commerce Commission v. Alabama Midland Railroad, 38, 39, 122 Interstate Commerce Commission v. Chicago, Rock Island, and Pacific Railway Co., 50 Interstate Commerce Commission v. Cincinnati, New Orleans, and Texas Pacific Railway , 7, 122 Interstate Commerce Commission v. Goodrich Transit Co., 59, 125 Interstate Commerce Commission v. Illinois Central Railroad Co., 7, 45, 122, 173, 219–220 Interstate Commerce Commission v. Louisville and Nashville Railroad, 74, 123 Interstate Commerce Commission v. Union Pacific Railroad, 123 Jackson, Howell E. (Justice), 86 Jeffrey Manufacturing Co. v. Blagg , 132, 180 Jim Crow policies, 12, 46, 59, 89, 100, 108, 139–146, 184–187, 223–224

Index

Jones Glass Company v. Glass Bottle Blowers’ Association, 25 Judiciary Act of 1789, 133, 197 Judiciary Act of 1925, 23, 30, 60, 197 Kansas City Southern Railway v. United States, 85 Karem v. United States, 71 Keating-Owen Child Labor Act, 54, 59, 136, 179, 225–226, 232 Kelley, Florence, 93 Kiernan v. Portland, 79, 131 Knickerbocker Ice Co. v. Stewart, 133 Knox, Philander C., 24 Kronprinzessin Cecilie, The, 147 Ku Klux Klan, 89, 198 Ku Klux Klan Enforcement Act, 187 Labor unions, 9, 75, 99, 137–139, 175–177 LaFollette, Robert M., 27 Lamar, Joseph Rucker (justice), 18, 23–24, 26, 36, 72–76, 93, 123, 138, 139, 143, 162 major opinions of, 74, 75 pictured, 8, 73 productivity of, 24 publications of, 72 League of Nations, 101 Lee Wilson Co. v. United States, 125 Leisy v. Hardin, 216 Lever Food and Fuel Control Act, 150, 152, 189, 220, 226–227 Liberty of contract doctrine, 8, 14, 43, 53, 63, 83, 90, 134, 138, 175, 281 Lochner v. New York, 9, 20, 45, 48, 53–54, 59, 178 Lodge, Henry Cabot, 20, 21 Loewe v. Lawlor, 9 Louisville Joint Stock Land Bank v. Radford, 66, 94, 125 Lurton, Horace Harmon, 20, 21, 25, 36, 67–71, 88, 114, 118, 165, 243, 260, 262 major opinions of, 70, 118 pictured, 8, 68 productivity of, 21

Mann Act, 11, 46, 50, 60, 137, 182, 227–228, 260 Mann–Elkins Act, 122, 173, 228–229 Manufacturers Railway v. United States, 85 Maple Flooring Manufacturers Association v. United States, 88 Marcus Brown Co. v. Feldman, 153 Marshall, John (chief justice), 110, 128, 192 McAdoo, William Gibbs, 151, 189–190 McCabe v. Atchison, Topeka, and Santa Fe Railway, 45, 144, 186, 230 McCoach v. Minehill Railway Co., 85 McCray v. United States, 12, 46, 127 McDermott v. Wisconsin, 128 McGrain v. Daugherty, 80 McHugh, William D., 23 McKenna, Joseph (justice), 18–19, 31, 36, 46–50, 116, 119, 120, 128, 135, 145, 148, 153, 157–158, 172, 174, 193, 195, 207, 228, 233, 259 major opinions of, 50, 116 pictured, 8, 11, 47 productivity of, 19, 48 McKinley v. United States, 150 McKinley, William, 18, 20, 48, 56, 234 McReynolds, James C. (justice), 25–26, 29, 31, 36, 80, 86–91, 97, 133, 135, 151, 163, 169, 172, 213, 243, 262 major opinions of, 162–163 pictured, 11, 87 productivity of, 26 Meat Packing Act of 1906, 10, 11, 181, 232, 259 Meyer v. Nebraska, 89 Migratory Bird Treaty Act, 160–161, 229 Miller v. Wilson, 63, 135 Milwaukee Social Democratic Publishing Co. v. Burleson, 100 Minersville School District v. Gobitis, 214 Minnesota Mortgage Moratorium Act, 65, 90 Minnesota Rate Cases, 63, 70, 124, 174, 261 Missouri ex rel. Gaines v. Canada, 89 Missouri v. Holland, 160–161, 229, 264

305

306

The White Court

Mitchell Coal and Coke Co. v. Pennsylvania Railroad, 74, 174 Mondou v. New York, New Haven, and Hartford Railroad Co. See Second Employers’ Liability Cases Moody, William Henry (justice), 74, 260 Morrisdale Coal Company v. Pennsylvania Railroad, 74 Motion Picture Company v. Universal Film Manufacturing Co., 119 Mountain Timber Co. v. Washington, 45, 84, 134, 180 Mugler v. Kansas, 40 Muller v. Oregon, 9, 45, 49, 93, 135, 167, 180, 260 Munn v. Illinois, 221 Myers v. Anderson, 143 Nagel, Charles, 23, 24 National Association for the Advancement of Colored People (NAACP), 89, 139, 145–146, 184, 224, 230–231 National Labor Relations Act, 66 National Labor Relations Board v. Jones and Laughlin Steel Corporation, 66, 81, 90 National Prohibition Cases, 196, 241, 264 National Recovery Act, 66, 80, 90, 94 Near v. Minnesota, 65, 80 Nebbia v. New York, 65, 90 New Deal, 65, 80, 89, 214 New Freedom, 93 New State Ice Co. v. Liebmann, 94 New York Central Railroad Co. v. White, 45, 84, 100, 132, 180 New York Central Railroad Co. v. Winfield, 94, 132 Nixon v. Herndon, 80, 198 Norman v. Baltimore and Ohio Railroad, 66 Norris, George W., 26 Norris-LaGuardia Act, 139 Northern Pacific Railway Co. v. North Dakota, 152, 190, 195 Northern Securities Co. v. United States, 5, 21, 38, 44, 49, 53, 58, 111, 167, 238

Noxious articles doctrine, 181, 259 Oklahoma Separate Car Law, 60 Olmstead v. United States, 95 Palmer, A. Mitchell, 207, 233 Patterson v. Colorado, 40, 154, 191, 205 Peckham, Rufus (justice), 54, 69, 260 Perry v. United States, 66 Pierce v. Society of Sisters, 89 Pierce v. United States, 50, 55, 85, 156–157, 212 Pitney, Mahlon (justice), 24–25, 26, 36, 55, 58, 81–86, 120, 132, 134, 138, 139, 156–157, 177, 207, 261 major opinions of, 83, 84, 85 pictured, 11, 87 productivity of, 16, 83 Plessy v. Ferguson, 12, 16, 39, 46, 144, 186, 223 Pollock v. Farmer’s Loan and Trust Company, 39, 216 Portland Gold Mining Co. v. Duke, 79 Powell v. Alabama, 65 Progressivism, 4, 10, 231–232 Proximate causation doctrine, 191, 205 Puerto Rico, 161 Puerto Rico v. Rosaly y Castillo, 161 Pure Food and Drug Act, 11, 46, 50, 70, 126, 127, 128, 129, 181, 232–233, 259 Purity Extract Co. v. Lynch, 166 Qong Wing v. Kirkendall, 75 Rasmussen v. United States, 43 Red Scare, 89, 193, 233–234 Reed Amendment, 142, 182 Reynolds v. United States, 185 Rhode Island v. Palmer, 80 Roosevelt, Franklin D., 64, 88, 94, 96, 101 Roosevelt, Theodore, 5, 10, 13, 15, 19, 20, 21, 45, 53, 56, 78, 86, 110, 112, 115, 126, 127, 171, 181, 210, 219, 222, 231, 234–236, 239, 244, 259 Root, Elihu, 20, 27

Index

Rule of reason, 38, 43, 49, 58, 107, 112, 116, 169, 171, 238 Rupert v. Caffey, 150, 183, 240–241, 264 Savage v. Jones, 128 Schaefer v. United States, 192 Schaffer v. Farmers’ Grain Company, 79 Schecter v. United States, 66, 94 Schenck v. United States, 46, 50, 55, 100, 154–155, 191–192, 212, 263 Schroeder, Theodore, 191 Second Employers’ Liability Act, 9 Second Employers’ Liability Cases, 79, 131, 179–180 Sedition Act, 46, 50, 109, 154–156, 191, 210, 212, 236, 263 Selective Draft Law Cases, 149–150, 154, 188, 237, 263 Selective Service Act, 149–150, 154, 188, 236–237, 263 Seven Cases of Eckman’s Alternative v. United States, 129, 233 Sherman Anti-Trust Act, 4–5, 9, 17, 38, 43, 49, 53, 58, 69, 83, 88, 94, 107, 108, 109, 110, 113, 115, 118, 119, 169–172, 176, 237–238, 259 Shiras, George, Jr. (justice), 20, 56 Shreveport Rate Cases, 63, 125, 261 Silver platter doctrine, 193 Silverthorne Lumber Co. v. United States, 158, 193–194, 234 Smith v. Interstate Commerce Commission, 174 Social Security Act, 81, 90 Sociological jurisprudence, 93, 96 South Covington and Cincinnati Street Railway Co. v. City of Covington, 145 South Covington and Cincinnati Street Railway Co. v. Kentucky, 145, 186 Southern Pacific Company v. Jensen, 133 St. Louis, Iron Mountain, and Southern Railway v. Craft, 134 Stafford v. Wallace, 100 Standard Oil Co. v. United States, 5, 38, 44, 49, 171, 238, 260

Standard Sanitary Manufacturing Co. v. United States, 118 Stanford, Leland, 19, 48 state police power, 6, 10, 127, 135, 177–184 Steamship Appam, The. See Berg v. British and African Navigation Company Steward Machine Company v. Davis, 81 Stewardship theory of the presidency, 10, 234–235 Storey, Moorfield, 28, 230 Stream of commerce doctrine, 111, 238 Stromberg v. California, 64 Sturgis and Burns Manufacturing Co. v. Beauchamp, 179 Sutherland, George (justice), 23, 80, 90 Swift and Co. v. United States, 111, 167, 238 Taft Court, 193, 197, 213, 228, 231, 240 Taft, William Howard, 3, 15, 17, 20, 21, 22, 27, 28, 29, 44, 46, 56, 62, 69, 72, 78, 83, 93, 99, 115, 129, 164, 168, 197, 239–240, 242, 244, 260 Thompson v. Thompson, 60 Transportation Act of 1920, 174 Transportation Act of 1940, 223 Transportation Act of 1958, 223 Truax v. Corrigan, 84, 94, 100 Truax v. Raich, 64 Twining v. New Jersey, 40 Underwood-Simmons Tariff, 261 United Mine Workers (UMW), 138 United Shoe Machinery Corp. v. United States, 119–121 United States v. Butler, 66 United States ex rel. Attorney General v. Delaware and Hudson Company, 38 United States ex rel. Milwaukee Socialist Democratic Publishing Co. v. Burleson, 157 United States v. American Tobacco Co., 38, 49, 113, 171, 243, 260 United States v. Chandler-Dunbar Co., 70, 165

307

308

The White Court

United States v. Darby Lumber Co., 54 United States v. Doremus, 129, 218–219 United States v. E. C. Knight Co., 5, 43, 58, 110, 137, 170, 216, 238 United States v. Grimaud, 14, 74, 162, 195, 204 United States v. Hill, 142, 166 United States v. Jin Fuey Moy, 218 United States v. Johnson, 129, 181, 233 United States v. Joint Traffic Association, 44 United States v. L. Cohen Grocery Co., 152–153, 189, 195, 227, 265 United States v. Lehigh Valley Railroad Co., 99 United States v. Leon, 194 United States v. Midwest Oil Company, 74, 164 United States v. Mosley, 142, 187 United States v. Quiver, 78 United States v. Reading Railroad Co. (1912), 69, 114 United States v. Reading Railroad Co. (1920), 99, 114–115 United States v. Reynolds, 142 United States v. Sandoval, 78 United States v. Southern Pacific Railway, 165 United States v. Terminal Railroad Association of St. Louis, 70 United States v. Trans-Missouri Freight Association, 43 United States v. Union Pacific Railway Co. (1912), 58, 114, 261 United States v. Union Pacific Railway Co. (1913), 114 United States v. United Shoe Machinery Co., 99, 120 United States v. U. S. Steel (1915), 116 United States v. U. S. Steel (1920), 45, 49, 58, 99, 116, 172, 207, 264 United States v. Winslow, 45, 120 Van Devanter, Willis (justice), 22–23, 31, 36, 66, 76–81, 114, 120, 131, 132, 144, 164, 196, 241, 260

major opinions of, 78, 79, 94, 179–180 pictured, 8, 11, 77 productivity of, 23, 78 Volstead Act, 150, 182, 183, 240–241, 264 Wabash, St. Louis, and Pacific Railway Co. v. Illinois, 221 Wagner Act, 80 Ward v. Race Horse, 78 Warren, Francis E., 23, 76 Warren, Samuel D., Jr., 91, 95 Wartime Prohibition Act, 150, 183, 240, 241, 263 Washington, Booker T., 140 Webb v. United States, 218 Webb-Kenyon Act, 182, 241–242 Weeks v. United States (1914), 86, 129, 158, 193, 261 West Coast Hotel Company v. Parrish, 66, 81, 90 West Virginia State Board of Education v. Barnette, 214 White Court, 32–33 aggregate profile, 29–32 assembling the, 15–29 compared to Fuller Court, 32–33 compared to Taft Court, 197–198 White, Edward Douglass (justice, chief justice), 3, 7, 9, 12, 15, 16–18, 23, 29, 30, 35, 36, 41–46, 58, 78, 107, 109, 112, 113, 118, 122, 124, 130, 136, 142, 143, 149, 152, 153, 161, 168, 170, 187, 188, 189, 190, 204, 212, 227, 242, 259, 260, 265 major opinions of, 43, 112, 142, 153, 188 pictured, 8, 11, 42 productivity of, 17 White Slave Traffic Act. See Mann Act Whitney v. California, 95 Wickersham, George C., 17, 21, 24, 27, 140, 242–243 Williams v. Mississippi, 12

Index

Wilson, James, 129 Wilson v. New, 84, 100, 136, 180, 203–204, 209, 262 Wilson, Woodrow, 10, 13, 15, 24, 64, 76, 88, 93, 97, 148, 184, 189, 203, 206, 225, 231, 238, 243–245, 261, 262, 264 Wilson-Gorman Tariff Act, 17, 43

Workmen’s compensation, 45, 84, 94, 100, 132–134, 261 World War I, 3, 4, 8, 25, 108, 146–154, 187–190, 195, 236–237, 244, 261 Yellow-dog contracts, 9, 45, 49, 83, 138, 176, 262, 287

309

About the Author Rebecca S. Shoemaker is a professor of history at Indiana Sate University in Terra Haute, Indiana.