A People's History of the Supreme Court

by Peter Irons

  McKinley’s second presidential term was cut short in 1901 by a bullet fired by a self-proclaimed anarchist. His successor, Theodore Roosevelt, had placed a distant third in running for mayor of New York City in 1886 but persevered in politics. Hoping to placate the “progressive” wing of the Republican Party, McKinley had picked Roosevelt to replace his first vice president, the totally forgotten Garret A. Hobart. Roosevelt appealed to progressives because he had broken his Wall Street ties and now posed as a “trust-busting” crusader. In reality, his rhetoric was designed more to attract voters than to attack the corporations that financed the Republican Party. Roosevelt did, however, look for Supreme Court nominees who rejected the doctrine of “substantive due process” and its hostility to economic regulation. His first chance to swing the judicial pendulum back to acceptance of the “police powers” doctrine came in 1902, with the death of justice Horace Gray after twenty years of dutiful service o corporate interests.

  Teddy Roosevelt valued courage and vigor and disclaimed any intellectual pretensions, but he admired those whose lives combined action and reflection. His first choice for the Supreme Court seemed a perfect fit with these attributes. He filled the Court’s “Massachusetts seat” with Oliver Wendell Holmes, Jr., and the Senate confirmed him without dissent. Holmes was born in 1841 into an illustrious Boston family (his father was a physician and essayist, famous as the “Autocrat of the Breakfast Table”). He left Harvard in his senior year to enlist in the Union army; during three years on the front lines, he was wounded three times and almost died on the battlefield.

  After his wartime service, Holmes entered Harvard Law School in 1864, and he combined law practice with teaching at Harvard until he joined the Massachusetts supreme court in 1882, serving for twenty years, the last ten as chief justice. Holmes also became the most prolific and illustrious legal scholar on the bench since Joseph Story, also the son of a Massachusetts physician and a former Harvard law professor. He wrote essays on legal history and jurisprudence for the American Law Review, edited a volume of Chancellor Kent’s Commentaries on American Law, and produced in 1881 an influential book, The Common Law. In this work, based on his essays and lectures at Harvard, Holmes deplored the rigid formalism of legal doctrine. “The life. of the law,” he wrote, “has not been logic; it has been experience.” He acknowledged that “the prejudices which judges share with their fellow-men have had a great deal more to do than the syllogism in determining the rules by which men should be governed.” He looked to the “felt necessities of the times” for guidance in deciding cases, rather than political or economic dogma.

  Presidents do not always choose justice whose decisions please them, and Holmes soon displeased Roosevelt. After Holmes voted in 1904 against the president’s position in a major antitrust case, Roosevelt wrote of his “bitter disappointment” in placing him on the Supreme Court. On his part, Holmes dismissed the president as a “shallow intellect.” Although he joined the Court at the age of sixty-one, Holmes served for almost thirty years before he retired in 1932, just shy of ninety-one and just a year before Franklin Roosevelt moved into the White House. He died in March 1935, two days short of his ninety-fourth birthday.

  Although he would probably have responded to the “felt necessities” of the Great Depression by voting to uphold FDR’s New Deal programs, Holmes did not share his sympathy for the “common man.” His outlook on life, shaped in the cauldron of the Civil War, reflected a deep-seated cynicism about politics and law Holmes looked down on “the people” from his aristocratic vantage and considered them poorly suited to make wise decisions. But he equally distrusted his judicial colleagues, locked into legal formalism and laissez-faire doctrine. Like Winston Churchill, whom he matched as master of the pithy phrase, Holmes considered democracy the worst of all systems, except for the rest. A convinced Social Darwinist in his personal views, Holmes disclaimed any desire to rescue the people from their ignorance and prejudice. He once told Justice Harlan Fiske Stone that “when the people . . . want to do something that I can’t find anything in the Constitution expressly forbidding them to do, I say, whether I like it or not, ‘Goddamit, let ’em do its.’ ”

  Some of Holmes’s rulings carried his deferential philosophy to extremes; the best (or worst.) example was his 1927 opinion in Buck v. Bell, upholding Virginia’s “eugenic sterilization” law, under which several thousand “feebleminded” and “morally delinquent” women had their Fallopian tubes cut by court order. Holmes endorsed the forced sterilization of Carrie Buck, the eighteen year-old “daughter of a feeble minded mother” and herself “the mother of an illegitimate feeble minded child,” as he stated the facts from the case record. His opinion reeked of the arrogance of aristocracy, and could easily have been written by Herbert Spencer. “It is better for all the world,” Holmes pontificated, “if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.” Comparing forced sterilization with compulsory vaccination, Holmes had a last, callous word for Carrie Buck and her family: “Three generations of imbeciles are enough.”

  Five decades later, a journalist who tracked down Carrie Buck and dug into old records discovered that she had been committed to Virginia’s “State Colony for Epileptics and Feeble Minded” only because she had been raped by the eminent doctor who employed her as a housekeeper. Her daughter, Emma, was a perfectly normal child, and the “eugenic expert” who recommended her sterilization was later honored by the German Nazi regime for helping draft its “Race Hygiene” law, which laid the tracks that ended in the gas chambers of Auschwitz and other death camps. Holmes knew nothing about the scientific fallacies of the “eugenic” movement; more important, he did not feel any duty to look behind the fabricated record in the Buck case. His philosophy of “judicial restraint” allowed state officials to exercise their “police powers” without any effective oversight.

  Legal scholars later voted Holmes into the ranks of “great” justices by acclamation; his literary upbringing and interests made him perhaps the best writer who ever sat on the bench. But Theodore Roosevelt’s other two choices placed well down the list of “average” justices. Both had better political than judicial credentials, and both had worked closely with Roosevelt during his stint as assistant navy secretary during McKinley’s first term. The retirement of Justice George Shiras in 1903 gave Roosevelt the chance to give Holmes a colleague who shared his support for governmental regulation of business and industry. The president first offered the seat to William Howard Taft, a prominent Ohio Republican who then served as governor of the Philippine Islands, but Taft had presidential ambitions and declined to leave the political arena. Ironically, Taft succeeded Roosevelt as president and later became Chief Justice, the only man who ever held both offices.

  After Taft spurned his offer, Roosevelt turned to William R. Day, a less prominent Ohio Republican who had built a thriving corporate practice and then served the McKinley administration in several positions, including a brief stint as secretary of state. McKinley rewarded Day for party loyalty with a post as federal circuit judge, where he sat for three years With Taft. Roosevelt knew Day as a fellow enthusiast of the Spanish-American War, which Day fought from his State Department office. Confirmed by the Senate without dissent, Day served on the court for nineteen years and compiled a divided voting record; he deferred to state “police powers” in business regulation cases and opposed federal laws in the same area. Day voted with Holmes in dissenting from a decision that invalidated a New York law setting a ten-hour workday for bakers, but he split with Holmes in striking down a federal law that prevented children under twelve from working in textile miles. Day was not alone in espousing the “dual sovereignty” doctrine that set different standards for state and federal laws, but he carried it to extremes that even Holmes could not follow.

  Theodore Roosevelt conferred his third
and final Supreme Court nomination on William Moody of Massachusetts to replace Justice Henry Brown in 1907. Moody resembled Day in several respects: both were loyal Republicans who served in Congress during the McKinley years; both held cabinet posts and met Roosevelt in dealing with naval policy; and both took a Supreme Court seat that William Howard Taft had declined to fill. Unlike Day, however, Moody served a short term; crippled by rheumatism, he resigned in 1910 after less than three years on the bench. His only significant constitutional opinion, Twining v. New Jersey in 1908, held that the right against self-incrimination in criminal trials “is not fundamental in due process of law,” a ruling that was finally overruled by the Court in 1964.

  Americans entered the twentieth century full of optimism and energy; jobs were plentiful, and living standards improved rapidly. The spreading use of inventions like vacuum canning, electric refrigeration, and telephones helped to make daily life easier and more pleasant. Drawn by visions of prosperity—and often lured by free steamship tickets—more than a million immigrants swarmed each year through Ellis Island and other ports of entry. Between 1900 and 1912, three Republican presidents—William McKinley, Theodore Roosevelt, and William Howard Taft—presided over a nation whose most influential citizen was the banker and industrialist J. P. Morgan. Described by historians Thomas Cochran and William Miller as the “imperial leader of the new oligarchy,” Morgan headed a financial empire with holdings in 1912 of $22 billion, more than the assessed value of all property west of the Mississippi River. Presidents listened carefully to Morgan, and several of their Supreme Court nominees had represented Morgan’s interests in corporate practice.

  But the nation’s prosperity did not trickle down to the men who labored in factories controlled by the “House of Morgan,” the women who operated sewing machines in urban “sweatshops,” the children who tended looms in textile mills, and the families who followed the seasons to pick crops from Florida’s oranges to Washington’s apples. Many of these workers heeded calls to join the Industrial Workers of the World, formed in 1905, or the International Ladies Garment Workers Union, the Western Federation of Miners, and a growing band of radical unions and political groups. Workers died and were injured by the thousands; the government’s Commission on Industrial Relations reported 35,000 deaths and 700,000 accidents in 1914. Employers shouldered none of the costs of death, injury, or disease.

  America’s working people enjoyed few legal rights during the years after the Supreme Court adopted the “liberty of contract” doctrine in Allgeyer, a case that dealt with legislative restrictions on business contracts. But they drew hope from the Court’s return to the “police powers” doctrine in Holden, which involved state regulation of employment contracts. The justices seemingly had enough concern for the well-being of workers in 1898 to overcome their commitment to laissez-faire principles. Over the next several years, however, the Court became more conservative and the labor and progressive movements grew in political influence. These factors combined to produce a judicial showdown in 1905 between the competing doctrines.

  The case of Lochner v. New York, began with the campaigns of populist and socialist movements in the 1890s for legislation to protect working people against low wages, long hours, and unsafe and unhealthy “sweatshop” conditions. These movements pressed for change with a wide range of tactics. They ran candidates for public office, most often to spread “propaganda” but sometimes with real chances to win; at one time, Socialists held 1,200 offices in 340 towns and cities, including mayoralties in Milwaukee and Cleveland. They organized workers into unions, from the “bread-and-butter” approach of the American Federation of Labor to the “class war” appeals of the Industrial Workers of the World, the “Wobblies” who preached the gospel of “One Big Union.” And they engaged in lobbying, matching the financial clout of their corporate foes with voting strength and ideological fervor. With shades on the political spectrum from pink to red, from “progressive” to “revolutionary,” these loosely connected movements won enough selections and passed enough laws to thoroughly frighten their “conservative” and “reactionary” enemies.

  One lobbying effort paid off in 1897 when the New York legislature passed a statute limiting the working hours of bakers to ten per day and sixty per week. The driving force behind the law was Henry Weismann, secretary of the Journeymen Backers’ Union. He enlisted the support of the Church Association for the Advancement of Labor and other “social gospel” groups, whose members sent letters, signed petitions, and visited their representatives in Albany. Weismann also presented legislators with medical reports on the serious health problems of bakers; one noted the effects of working long hours in hot, dusty workshops: “The constant inhaling of flour dust causes inflammation of the lungs and of the bronchial tubes. The long hours of toil to which all bakers are subjected produce rheumatism, cramps, and swollen legs.” Impressed by this medical testimony, New York lawmakers stated in the law’s preamble that it was enacted as a “health” measure. The statute was inserted, however, in the “labor law” section of the state code, a bureaucrat’s decision that later provided ammunition to its opponents.

  Joseph Lochner owned Lochner’s Home Bakery in Utica, a small city in upstate New York. This was not a big commercial bread factory, but a neighborhood bakeshop that specialized in cakes and pies. The Journeymen Bakers’ Union, which represented the workers at many large bakeries, could not win a majority of Lochner’s bakers to their cause. But some disgruntled employees complained to state inspectors that Lochner required them to work more than sixty hours each week. He was convicted in 1899 of violating the “bakers law” and paid a $25 fine. Two years later, he was charged with forcing Aman Schmitter to work longer than sixty hours and was fined $50 for a second offense; this time Lochner challenged his conviction on due process grounds.

  After New York’s highest court upheld the law, Lochner took his case to the Supreme Court, represented by a battery of Wall Street lawyers. Ironically, one member of his legal team was Henry Weismann, who had lobbied for the law as a union official and now argued against it as counsel for the State Association of Master Bakers, which funded Lochner’s appeal. Weismann later explained his change of clients: “When I was young,” he told a New York Times reporter, “I was fiery and full of ideals. Later became a master baker, and, undergoing an intellectual revolution, saw where the law which I had succeeded as a journeyman baker in having passed was unfair to the employers.” Weismann’s experienced baker’s hands could be seen in the brief he helped write for the Supreme Court. He argued that the ten-hour day unreasonably limited an industry with “busy seasons” like holidays, when employers found it “absolutely necessary to keep their bakers until the business of the day or the night is finished.” He also disputed the law’s stated purpose as a “health” measure. “The average bakery of the present day is well ventilated, comfortable both summer and winter, and always sweet smelling,” Weismann wrote. Limits on working hours had no relation to legitimate health concerns. “Insofar as the baker works under unsanitary conditions, in small and poorly ventilated bakeshops, his interests are protected by the other sections of this law.”

  Weismann also appealed to the “liberty of contract” doctrine. “Each new attempt by the States to interfere with the contract and property rights, and freedom to exercise a trade or calling by the citizen, should be most closely and jealously scrutinized by this court,” he argued. He deplored “a government so paternal in its character that the treasured freedom of the individual and his right to the pursuit of life, liberty, and happiness, should be swept away under the guise of the police power of the State.” The former baker put the frosting on his brief with a flourish: “Then there is the American housewife. Here is the real artist in biscuits, cake, and bread, not to mention the American pie. The housewife cannot bound her daily and weekly hours of labor. She must toil on, sometimes far into the night, to satisfy the wants of her growing family. It seems ne
ver to have occurred to these ungallant legislators to include within the purview of the statute these most important of all artists in this most indispensable of trades.”

  Few brief-writers have ever topped Weismann’s appeal to apple pie and motherhood. New York’s attorney general, Julius Mayer, did not even try; his skimpy brief was flat and stale. Mayer defended his state’s law by claiming, with no elaboration, that “it was a proper exercise of the police power of the State.” He also paternally suggested that bakers were deficient in brains: “The State, in undertaking this regulation, has a right to safeguard the citizen against his own lack of knowledge.” Weismann presented the Court with a rhetorical pie, Mayer with a day-old bagel.

  Justice Rufus Peckham could hardly wait to sink his teeth into the Lochner case. He was born into a political family in New York’s capital city of Albany; his father was a prominent lawyer who served in Congress as a conservative Democrat, before his election to the New York Court of Appeals, the state’s highest court. Peckham followed his father into both law and politics, building a thriving corporate practice before winning election, like his father, to the court of appeals. He knew many of the lawmakers and lobbyists who dined and cut deals in the restaurants around Albany’s capitol building. Conservative in politics, Peckham was equally conservative as a state judge; dissenting in 1889 from a decision that upheld the state’s power to regulate grain elevator rates, Peckham deplored legislation that set “class against class” and denounced the law as “vicious in its nature, communistic in its tendency.”