WHITE COURT (1910–1921)

"The condition of the Supreme Court is pitiable, and yet those old fools hold on with a tenacity that is most discouraging," President william howard taft wrote in May 1909 to his old friend horace h. lurton. Taft would have his day. One year later, Chief Justice melville w. fuller spoke at the Court's memorial service for Justice david j. brewer : "As our brother Brewer joins the great procession, there pass before me the forms of Mathews and Miller, of Field and Bradley and Lamar and Blatchford, of Jackson and Gray and of Peckham, whose works follow them now that they rest from their labors." These were virtually Fuller's last words from the bench, for he died on Independence Day, 1910, in his native Maine. rufus w. peckham had died less than a year earlier. william h. moody, tragically and prematurely ill, would within a few months have to cut short by retirement one of the few notable short tenures on the Court. john marshall harlan had but one year left in his remarkable thirty-four-year tenure. By 1912, five new Justices had come to the Court who were not there in 1909: a new majority under a new Chief Justice.

The year 1910 was a significant divide in the history of the country as well. The population was nearly half urban, and immigration was large and growing. The country stood on the verge of enacting humane and extensive labor regulation. A year of Republican unrest in Congress and theodore roosevelt's decisive turn to progressive agitation, 1910 was the first time in eight elections that the Democrats took control of the House. In the same year, the National Association for the Advancement of Colored People was founded. It was a year of progressive tremors that would eventually shake the Supreme Court to its foundations with the appointment of louis d. brandeis in 1916. But the five appointments with which President Taft rehabilitated his beloved Court between 1909 and 1912 had no such dramatic impact. There was a significant strengthening of a mild progressive tendency earlier evident within the Court, but the new appointments brought neither a hardening nor a decisive break with the doctrines of laissez-faire constitutionalism and luxuriant individualism embodied in such decisions as lochner v. new york (1905) and Adair v. United States (1908). Taft's aim was to strengthen the Court with active men of sound, if somewhat progressive, conservative principles. Neither Taft nor the nation saw the Court, as both increasingly would a decade later, as the storm center of pressures for fundamental constitutional change.

Taft's first choice when Peckham died in 1909 was his friend Lurton, then on the Sixth Circuit, and a former member of the Tennessee Supreme Court. Lurton, a Democrat, had been a fiery secessionist in his youth, and in his short and uneventful four-year tenure he combined conservationism on economic regulation, race, and labor relations. Taft's second choice was not so modest. When Taft went to Governor charles evans hughes of New York to replace Brewer, he brought to the Court for the first of his two tenures a Justice who would emerge as one of the greatest figures in the history of American law, and a principal architect of modern civil liberties and civil rights jurisprudence. As governor of New York, Hughes was already one of the formidable reform figures of the Progressive era, and his later career as a presidential candidate who came within a whisper of success in 1916, secretary of state during the 1920s, and Chief Justice during the tumultuous years of the New Deal, mark him as one of the most versatile and important public figures to sit on the Court since john marshall.

Taft's choice of the Chief Justice to fill the center seat left vacant by Fuller was something of a surprise, although reasons are obvious in retrospect. edward d. white was a Confederate veteran from Louisiana, who had played a central role in the Democratic reaction against Reconstruction in that state and had emerged as a Democratic senator in 1891. He had been appointed Associate Justice in 1894 by President grover cleveland and had compiled a respectable but unobtrusive record in sixteen years in the side seat. He had dissented with able force from the self-inflicted wound of pollock v. farmers ' loan & trust co. (1895), holding unconstitutional the federal income tax, and his antitrust dissents in trans-missouri freight association (1897) and united states v. northern securities company (1904) embodied sound good sense. He had done "pioneer work," as Taft later called it, in administrative law. White had a genius for friendship and, despite a habit of constant worrying, extraordinary personal warmth. oliver wendell holmes summed him up in these words in 1910: "His writing leaves much to be desired, but his thinking is profound, especially in the legislative direction which we don't recognize as a judicial requirement but which is so, especially in our Court, nevertheless." White was sixty-five, a Democrat, a Confederate veteran, and a Roman Catholic, and his selection by Taft was seen as adventurous. But given Taft's desire to bind up sectional wounds, to spread his political advantage, to put someone in the center seat who might not occupy Taft's own ultimate ambition for too long, to exemplify bipartisanship in the choice of Chief Justice, and on its own sturdy merits, the selection of White seems easy to understand.

Along with White's nomination, Taft sent to the Senate nominations of willis van devanter of Wyoming and joseph r. lamar of Georgia. Van Devanter would sit for twenty-seven years, and would become one of the Court's most able, if increasingly conservative, legal craftsmen. Lamar would last only five years, and his death in 1915, along with Lurton's death in 1914 and Hughes's resignation to run for President, opened up the second important cycle of appointments to the White Court.

The Taft appointees joined two of the most remarkable characters ever to sit on the Supreme Court. John Marshall Harlan, then seventy-eight, had been on the Court since his appointment by President rutherford b. hayes in 1877. He was a Justice of passionate strength and certitude, a man who, in the fond words of Justice Brewer, "goes to bed every night with one hand on the Constitution and the other on the Bible, and so sleeps the sleep of justice and righteousness." He had issued an apocalyptic dissent in Pollock, the income tax case, and his dissent in plessy v. ferguson (1986), the notorious decision upholding racial segregation on railroads, was an appeal to the conscience of the Constitution without equal in our history. The other, even more awesome, giant on the Court in 1910 was Holmes, then seventy, but still not quite recognized as the jurist whom benjamin n. cardozo would later call "probably the greatest legal intellect in the history of the English-speaking judiciary." The other two members of the Court were joseph mckenna, appointed by President william mckinley in 1898, and william r. day, appointed by President Theodore Roosevelt in 1903.

The Supreme Court in 1910 remained in "truly republican simplicity," as Dean Acheson would recall, in the old Senate chamber, where the Justices operated in the midst of popular government, and in the sight of visitors to the Capitol. No office space was available, and the Justices worked in their homes. Their staff allowance provided for a messenger and one clerk, and their salaries were raised in 1911 to $14,500 for the Associate Justices and $15,000 for the Chief Justice. The Court was badly overworked and the docket was falling further and further behind, not to be rescued until the judiciary act of 1925 gave the Court discretion to choose the cases it would review.

In the public's contemporaneous view, if not in retrospect, the most important cases before the White Court between 1910 and 1921 did not involve the Constitution at all, but rather the impact of the sherman antitrust act on the great trusts. united states v. standard oil company (1911) and American Tobacco Company v. United States (1911) had been initiated by the Roosevelt administration to seek dissolution of the huge combinations, and when the cases were argued together before the Supreme Court in 1911, the Harvard Law Review thought public attention was concentrated on the Supreme Court "to a greater extent than ever before in its history."

The problem for the Court was to determine the meaning of restraint of trade amounting to monopoly. The answer offered by Chief Justice White for the Court was the famous rule of reason, under which not all restraints of trade restrictive of competition were deemed to violate the Sherman Act, but rather only those "undue restraints" which suggested an "intent to do wrong to the general public … thus restraining the free flow of commerce and tending to bring about the evils, such as enhancement of riches, which were considered to be against public policy." Under this test, the Court deemed Standard Oil to have engaged in practices designed to dominate the oil industry, exclude others from trade, and create a monopoly. It was ordered to divest itself of its subsidiaries, and to make no agreements with them that would unreasonably restrain trade. The court ruled that the American Tobacco Company was also an illegal combination and forced it into dissolution.

Antitrust was perhaps the dominant political issue of the 1912 presidential campaign, and the rule of reason helped to fuel a heated political debate that produced the great clayton act and federal trade commission act of 1914. Further great antitrust cases came to the White Court, notably United States v. United States Steel Company, begun in 1911, postponed during the crisis of world war i, and eventually decided in 1920. A divided Court held that United States Steel had not violated the Sherman Act, mere size alone not constituting an offense.

The tremendous public interest generated by the antitrust cases before the White Court was a sign of the temper of the political times, in which the regulation of business and labor relations was the chief focus of progressive attention. In this arena of constitutional litigation, the White Court's record was mixed, with perhaps a slight progressive tinge. On the great questions of legislative power to regulate business practices and working arrangements, the White Court maintained two parallel but opposing lines of doctrines, the one protective of laissez-faire constitutionalism and freedom from national regulation, the other receptive to the progressive reforms of the day.

In the first four years after its reconstitution by Taft, the Supreme Court handed down a number of important decisions upholding national power to regulate commerce for a variety of ends. The most expansive involved federal power to regulate railroads—and to override competing state regulation when necessary. Atlantic Coast Line Railroad v. Riverside Mills (1911) upheld Congress's amendment of the hepburn act imposing on the initial carrier of goods liability for any loss occasioned by a connecting carrier, notwithstanding anything to the contrary in the bill of lading. freedom of contract gave way to the needs of shippers for easy and prompt recovery. More significantly, in the second of the employers ' liability cases (1912), the Court upheld congressional legislation imposing liability for any injury negligently caused to any employee of a carrier engaged in interstate commerce. This legislation did away with the fellow-servant rule and the defense of contributory negligence, again notwithstanding contracts to the contrary. In 1914, in the famous Shreveport Case (Houston, East & West Texas Railway Company v. United States), the Court upheld the power of the Interstate Commerce Commission to set the rates of railroad hauls entirely within Texas, because those rates competed against traffic between Texas and Louisiana. The Court overrode the rates set by the Texas Railroad Commission in the process. And in the most important commerce clause decision of the early years of the White Court, the minnesota rate cases (1913), the Court upheld the power of the states to regulate railroad rates for intrastate hauls, even when that regulation would force down interstate rates, so long as there had been no federal regulation of those rates. Thus, state power over rates was not invalidated because of the possibility of prospective federal regulation, and a large loophole between state and federal power was closed.

Outside the area of carrier regulation, the White Court was also friendly to national regulation by expanding the national police power doctrine. hipolite egg co. v. united states (1911) upheld the pure food and drug act of 1906 in regulating adulterated food and drugs shipped in interstate commerce, whether or not the material had come to rest in the states. "Illicit articles" that traveled in interstate commerce were subject to federal control, the Court said, although with a doctrinal vagueness and confusion that would come back to haunt the Court in hammer v. dagenhart (1918). In hoke v. united states (1913) the Court upheld the mann act, which punished the transportation in interstate commerce of women "for the purpose of prostitution or debauchery, or for any other immoral purpose."

Taft got his opportunity for a sixth appointment—more appointments in one term than any President in our history since george washington—when Harlan died in 1911. He filled the vacancy with mahlon pitney, chancellor of New Jersey. The reasons for this appointment are obscure, but like other Taft appointments Pitney was a sound, middle-of-the-road, good lawyer with little flair or imagination. As if to prepare for the coming flap over Brandeis, the Pitney appointment ran into trouble because of the nominee's alleged antilabor positions. But Pitney prevailed, and he would serve on the Court until 1922.

If ever in the history of the Supreme Court successive appointments by one President have seemed to embrace dialectical opposites, woodrow wilson's appointments of james c. mcreynolds in 1914 and Louis D. Brandeis in 1916 are the ones. McReynolds would become an embittered and crude anti-Semite; Brandeis was the first Jew to sit on the Supreme Court. McReynolds would become the most rigid and doctrinaire apostle of laissez-faire conservatism in constitutional history, the most recalcitrant of the "Four Horsemen of Reaction" who helped to scuttle New Deal legislation in the early 1930s. Brandeis was the greatest progressive of his day, on or off the Court. McReynolds was an almost invariable foe of civil liberties and civil rights for black people; Brandeis was perhaps the driving force of his time for the development of civil liberties, especially freedom of expression and rights of personal privacy. What brought these opposites together in Wilson's esteem, although he came to regret the McReynolds appointment, was antitrust fervor. McReynolds's aggressive individualism and Brandeis's progressive concern for personal dignity and industrial democracy coalesced around antitrust law, and this was the litmus test of the day for Wilson. Thus, possibly the most difficult and divisive person ever to sit on the Supreme Court and possibly the most intellectually gifted and broadly influential Justice in the Court's history took their seats in spurious, rather Wilsonian, juxtaposition.

Wilson's third appointment was handed him by the resignation of his rival in the presidential election of 1916. As it became plain that Hughes was the only person who could unite the Republican party, he came under increasing pressure from Taft and others to make himself available. He did. Wilson nominated john h. clark of Ohio to replace Hughes. One of the most pregnant speculations about the history of the Supreme Court is what might have happened had Hughes remained on the bench. He might well have become a Chief Justice in 1921 instead of Taft, and under his statesmanlike influence, the hardening of doctrine that led to the confrontation over the New Deal and the Court-packing plan might not have happened.

Although two of Wilson's three appointments were staunch progressives, the Supreme Court seemed to adopt a somewhat conservative stance as it moved toward the decade of erratic resistance to reform that would follow in the 1920s. Federal reform legislation generally continued to pass muster, but there was the staggering exception of the Child Labor Case in 1918. And the Court seemed to strike out at labor unions, in both constitutional and antitrust decisions.

In Hammer v. Dagenhart (1918) the Supreme Court stunned Congress and most of the country when it invalidated the first federal child labor act. The extent of child labor in the United States during the Progressive era was an affront to humanitarian sensibilities. One child out of six between the ages of ten and fifteen was a wage earner. Prohibition and regulation of child labor became the central reform initiatives of the progressive impulse. In 1916, overcoming constitutional doubts, Wilson signed the keating-owen act, which forbade the shipment in interstate or foreign commerce of the products of mines where children sixteen and under had been employed, or of factories where children younger than fourteen worked, or where children fourteen to sixteen had worked more than eight hours a day, six days a week. Child labor was not directly forbidden, but was severely discouraged by closing the channels of interstate commerce.

A narrow majority of the Court, in an opinion by Justice Day, held that this law exceeded the federal commerce power. Day reasoned that the goods produced by child labor were in themselves harmless, and that the interstate transportation did not in itself accomplish any harm. This reasoning was entirely question-begging, because it was the possibility of interstate commerce that imposed a competitive disadvantage in states that outlawed child labor in comparison with less humanitarian states. Moreover, the reasoning was flatly inconsistent with the opinion in Hipolite Egg and Hoke. But the majority plainly regarded the federal child labor legislation as an invasion of the domestic preserves of the states. Holmes, joined by McKenna, Brandeis, and Clarke, issued a classic dissent.

With the preparations for an advent of American involvement in World War I, the Supreme Court recognized broad federal power to put the economy on a wartime footing. The burden of constitutional resistance to reform legislation shifted to cases involving state laws. Here the main hardening in doctrinal terms came in cases involving labor unions. Otherwise, a reasonable progressivism prevailed. Thus, in bunting v. oregon (1917) the Court upheld the maximum ten-hour day for all workers in mills and factories, whether men or women. However, two minimum wage cases from Oregon were upheld only by the fortuity of an equally divided Supreme Court, Brandeis having recused himself.

The most chilling warning to progressives that laissezfaire constitutionalism was not dead came in coppage v. kansas (1915). The issue was the power of a state to prohibit by legislation the so-called yellow dog contract, under which workers had to promise their employers not to join a union. The Court in Coppage held such laws unconstitutional: to limit an employer's freedom to offer employment on its own terms was a violation of freedom of contract.

The Supreme Court's race relations decisions between 1910 and 1921 constitute one of the Progressive era's most notable, and in some ways surprising, constitutional developments. Each of the Civil War amendments was given unprecedented application. For the first time, in the Grandfather Clause Cases (1915), the Supreme Court applied the fifteenth amendment and what was left of the federal civil rights statutes to strike down state laws calculated to deny blacks the right to vote. For the first time, in bailey v. alabama (1911) and united states v. reynolds (1914), the Court used the thirteenth amendment to strike down state laws that supported peonage by treating breach of labor contracts as criminal fraud and by encouraging indigent defendants to avoid the chain gang by having employers pay their fines in return for commitments to involuntary servitude. For the first time, in buch-anan v. warley (1917), it found in the fourteenth amendment constitutional limits on the spread of laws requiring racial separation in residential areas of cities and towns, and also for the first time, in McCabe v. Atchison, Topeka & Santa Fe Railway (1914), it put some teeth in the equality side of the separate but equal doctrine by striking down an Oklahoma law that said that railroads need not provide luxury car accommodations for blacks on account of low demand.

To be sure, only with respect to peonage could the White Court be said to have dismantled the legal structure of racism in any fundamental way. After the White Court passed into history in 1921, blacks in the South remained segregated and stigmatized by Jim Crow laws, disfranchised by invidiously administered literacy tests, white primary elections, and poll taxes; and victimized by a criminal process from whose juries and other positions of power they were wholly excluded. But if the White Court did not stem the newly aggressive and self-confident ideology of racism inundating America in the Progressive era, neither did it put its power and prestige behind the flood, as had the waite court and fuller court that preceded it—and, at critical points, it resisted. The White Court's principled countercurrents were more symbols of hope than effective bulwarks against the racial prejudice that permeated American law. But the decisions taken together mark the first time in American history that the Supreme Court opened itself in more than a passing way to the promises of the Civil War amendments.

World War I generated the first set of cases that provoked the Supreme Court for the first time since the first amendment was ratified in 1791 to consider the meaning of freedom of expression. The cases, not surprisingly, involved dissent and agitation against the war policies of the United States. The war set off a major period of political repression against critics of American policy.

In the first three cases, schenck v. united states, frohwerk v. united states, and in re debs (1919), following the lead of Justice Holmes, the Supreme Court looked not to the law of seditious libel for justification in punishing speech but rather to traditional principles of legal responsibility for attempted crimes. In English and American common law, an unsuccessful attempt to commit a crime could be punished if the attempt came dangerously close to success, while preparations for crime—in themselves harmless—could not be punished. With his gift of great utterance, Holmes distilled these doctrinal nuances into the rule that expression could be punished only if it created a clear and present danger of bringing about illegal action, such as draft resistance or curtailment of weapons production. Given his corrosive skepticism and his Darwinian sense of flux, the clear and present danger rule later became in Holmes's hands a fair protection for expression. But in the hands of judges and juries more passionate or anxious, measuring protection for expression by the likelihood of illegal action proved evanescent and unpredictable.

There were other problems with the clear and present danger rule. It took no account of the value of a particular expression, but considered only its tendency to cause harmful acts. Because the test was circumstantial, legislative declarations that certain types of speech were dangerous put the courts in the awkward position of having to second-guess the legislature's factual assessments of risk in order to protect the expression. This problem became clear to Holmes in abrams v. united states (1919), in which a statute punishing speech that urged curtailment of war production was used to impose draconian sanctions on a group of radical Russian immigrants who had inveighed against manufacture of war material that was to be used in Russia. In this case, Holmes and Brandeis joined in one of the greatest statements of political tolerance ever uttered.

In 1921, the year Edward Douglass White died and Taft became Chief Justice, Benjamin Cardozo delivered his immortal lectures, "The Nature of the Judicial Process." Cardozo pleaded for judges to "search for light among the social elements of every kind that are the living forces behind the facts they deal with." The judge must be "the interpreter for the community of its sense of law and order … and harmonize results with justice through a method of free decision." Turning to the Supreme Court, Cardozo stated: "Above all in the field of constitutional law, the method of free decision has become, I think, the dominant one today."

In this view, we can see that Cardozo was too hopeful, although his statement may have been offered more as an admonition than a description. The method of "free decision," exemplified for Cardozo by the opinions of Holmes and Brandeis, remained in doubt notwithstanding the inconsistent progressivism of the White Court, and would become increasingly embattled in the decades to come.

Benno C. Scmidt, Jr.
(1986)

Bibliography

Bickel, Alexander M. and Schmidt, Benno C., Jr. 1984 The Judiciary and Responsible Government 1910–1921. Vol. IX of the Holmes Devise History of the Supreme Court. New York: Macmillan.

Cardozo, Benjamin N. 1921 The Nature of the Judicial Process. New Haven, Conn.: Yale University Press.

Chafee, Zecharia 1949 Free Speech in the United States. Cambridge, Mass.: Harvard University Press.

Highsaw, Robert B. 1981 Edward Douglass White. Baton Rouge: Louisiana State University Press.

Semonche, John E. 1978 Charting the Future: The Supreme Court Responds to a Changing Society 1890–1920. Westport, Conn.: Greenwood Press.

Swindler, William F. 1969 Court and Constitution in the 20th Century: The Old Legality 1889–1932. Indianapolis: Bobbs-Merrill.