A People's History of the Supreme Court

by Peter Irons

  On November 23, 1921, the four young anarchists boarded a ship in New York that took them to Latvia, from where they traveled by train to Moscow. Having endured prison in the United States for supporting the Soviet revolution, they encountered persecution by the Bolshevik government. Vladimir Lenin ordered a crackdown on anarchists after a mutiny at the Kronstadt naval base in March 1921 in which they played leading roles. Bolshevik troops killed six hundred insurgents and marched several thousand to prisons, while thousands more fled to neighboring Finland. “The time has come,” Lenin warned, “to put an end to opposition, to put a lid on it; we have had enough opposition.” The Bolsheviks put an end to Russian anarchism, and the four young people who chose deportation over prison all met sad ends. Samuel Lipman—who was more of a Marxist than an anarchist—joined the Communist Party but could not escape his past and was murdered in the Stalinist purges of the 1930s. Hyman Lachowsky moved from Moscow to Minsk in 1922 and most likely died when German troops overran the city in 1941 and systematically murdered all Jews who remained. Quickly disillusioned, Jacob Abrams and Mollie Steimer left Russia and found exile in Mexico by different paths. Abrams died in 1953 and Steimer in 1980. Mollie Steimer., the most uncompromising of the group, wrote in 1960 what could serve as an epitaph for them all: “We fought, injustice in our humble way as best we could; and if the result was prison, hard labour, deportations and lots of suffering, well, this was something that every human being who fights for a better humanity has to expect.”

  22

  “Every Idea Is an Incitement”

  The guns fell silent across Europe in November 1918, and most Americans breathed a sigh of relief. The Socialist Party no longer scared the public, and the anarchist movement—never more than a few thousand in numbers—had been decimated by Sedition Act prosecutions and had dwindled to an impotent handful. But a new and far more frightening enemy soon appeared, in the form of the Communist Party, first organized in 1919. Members of the Socialist Party’s “left-wing” faction, which opposed participation in “capitalist” elections and supported the Soviet Revolution of 1917, broke away in June 1919 and formed the Communist Labor Party; internal disputes within this group later produced a competing Communist Party made up largely of Russian immigrants.

  Most factories had operated at full speed during the war, and peacetime brought falling wages and rising unemployment. Workers responded in 1919 with the greatest strike wave in American history; Seattle was paralyzed by a general strike, and even the Boston police walked off their beats and marched in picket lines. A wave of terrorist bombing created fear and panic; Seattle mayor Ole Hanson received a bomb in the mail and another exploded at the home of former Georgia senator Thomas Hardwick, injuring his maid. A New York postal clerk read the news, remembered some suspicious packages, and discovered thirty-four bombs addressed to such prominent people as john D. Rockefeller, J. P. Morgan, Justice Oliver Wendell Holmes, and Attorney General A. Mitchell Palmer. The person or group that sent these bombs escaped detection, which turned every “radical” into a potential suspect. On June 2, 1919, someone placed another bomb on Palmer’s doorstep; it exploded prematurely and blew the bomber into such tiny pieces that he was never identified.

  During the war, an ambitious young clerk in the Justice Department’s Bureau of Investigation named J. Edgar Hoover began compiling lists of actual and alleged “Reds” and soon had files on 200,000 people; federal agents stole membership lists of radical groups and other names came from volunteer spies who reported “subversives” to federal officials. In the wake of the 1919 bombings, a wave of fear gripped the nation and unleashed a campaign of repression against radicals. With Hoover supplying names and addresses, federal agents began the “Palmer raids” in November 1919, arresting hundreds of members of the Union of Russian Workers; on December 21, some 249 Russian aliens—who did not enjoy the legal rights of citizens—were hustled aboard a ship dubbed the “Red Ark” by the press and deported to the Soviet Union.

  Cheered on by the press, federal agents conducted a second round of Palmer raids on January 2, 1920, rounding up more than four thousand suspected radicals in thirty-three cities. J. Edgar Hoover directed the operation, dispensing with arrest warrants and encouraging his agents to grab any documents they could find, especially lists of members and contributors. The raiders made quite a few mistakes; many of those arrested were citizens, others were simply curious observers at public meetings, and some were innocent bystanders, nabbed on sidewalks outside buildings that housed “radical” groups.

  The press again cheered the raids. “There is no time to waste on hairsplitting over infringement of liberty,” proclaimed the Washington Post. But the government’s actions stirred a small band of “civil libertarians” to protest. The newly formed American Civil Liberties Union, which grew out of groups that defended war protesters and draft resisters, joined the National Popular Government League in publishing a scathing Report upon the Illegal Practices of the United States Department of Justice, documenting many examples of police brutality during the raids, prolonged detention of those arrested without access to counsel or families, and due process violations in the courts. Twelve prominent lawyers, including Zechariah Chafee and Felix Frankfurter of Harvard Law School, signed the report and condemned the “utterly illegal acts which have been committed by those charged with the highest duty of enforcing the laws.” The ACLU report stung Attorney General Palmer, who insinuated that his critics were “soft” on communism.

  Palmer left office in 1921 after Warren Harding reclaimed the White House for the Republicans. The next attorney general, Harry Daugherty, was forced from office by the Teapot Dome scandal, which broke after Harding’s death in August 1923. Had he lived much longer, Harding would almost certainly have faced impeachment for the widespread corruption he tolerated by his cronies. Vice President Calvin Coolidge, who remained untouched by scandal, moved quickly as Harding’s successor to clean house in Washington. He appointed Harlan Fiske Stone, former dean of Columbia Law School (and future Chief Justice), as attorney general. Sweeping his own broom in the Justice Department, Stone fired the head of the Federal Bureau of Investigation and replaced him with 1. Edgar Hoover, not yet thirty years old. Stone ordered Hoover to end all political surveillance, and the young bureaucrat complied. But Stone spent just one year as Hoover’s boss; as soon as President Coolidge named Stone to the Supreme Court in 1925, Hoover moved his “radical” files out of storage and put hundreds of FBI agents to work on creating more. The former file clerk turned “Red hunter” outlasted seven presidents and more than twenty attorney generals before his death in 1972. The contents of Hoover’s files sent hundreds of real and suspected radicals—from Communists to Black Panthers—to prison over some fifty years, and the Supreme Court decided more than a dozen First Amendment cases that began inside the covers of FBI files.

  Most of the political cases that reached the Court during the two decades between the world wars involved state and not federal laws. The Sedition Act of 1918 expired in 1921 and was not replaced until 1940, when Congress made it a crime to “advocate” the overthrow of government “by force or violence.” During the intervening years, however, state lawmakers filled the gap with dozens of laws to punish “criminal anarchy” and “criminal syndicalism,” terms that most people would have trouble defining. These laws actually stemmed from two prewar campaigns: first, to keep Russian anarchists who slipped past immigration inspectors from spreading their view that organized government should be abolished; and second, to prosecute the IWW “Wobblies” who advocated a “syndicalist” government based on workplace elections in which “bosses” could not vote. Ironically, the Communist who later became the prime targets of these laws rejected both anarchism and syndicalism; they advocated a strong central government based on the “dictatorship of the proletariat.”

  By 1921, thirty-five states had enacted criminal anarchy or criminal syndicalism laws. New York’s
law, the first to be passed in 1902, defined criminal anarchy as “the doctrine that organized government should be overthrown by force or violence . . . or by any unlawful means.” Anyone who advocated this doctrine “by word of mouth or writing” faced a ten-year prison term. California adopted its criminal syndicalism law in 1919, defining the term as “any doctrine or precept advocating . .. the commission of crime, sabotage . . . or unlawful methods of terrorism as a means of accomplishing a change in industrial ownership or control, or effecting any political change.” Directed against the Wobblies who preached and sometimes practiced workplace sabotage during strikes—like the French workers who threw their sabots or wooden shoes into machines—the California law provided a maximum fourteen-year sentence.

  Challenges to the New York and California laws reached the Supreme Court in cases that both began in November 1919. Police in New York City arrested Benjamin Gitlow, a Russian immigrant and business manager of The Revolutionary Age, the organ of the Left Wing Section of the Socialist Party. He was charged with “criminal anarchy” for printing and distributing sixteen thousand copies of the “Left Wing Manifesto” that dissident Socialists had adopted in June 1919. (By the time of his arrest, Gitlow had joined other members of the left-wing faction in forming the Communist Party.) The manifesto called on workers to reject electoral “parliamentarism” and to fight against “the bourgeois state and Capitalism” with action that “starts with strikes of protest, developing into mass political strikes and then into revolutionary mass action that will conquer the power of the state.” The goal of “mass action” was to establish “a revolutionary dictatorship of the proletariat.” The manifesto that Gitlow printed disavowed any call for “immediate revolution” and stated that “the final struggle against Capitalism may last for years and tens of years.” It ended with this exhortation: “The Communist International calls the proletariat of the world to the final struggle!” The Communist International linked revolutionary parties around the world and had its headquarters in Moscow. The manifesto’s fiery rhetoric and Gitlow’s allegiance to Moscow convinced a jury that he belonged behind bars, and a New York judge sentenced him to five years in state prison.

  Charlotte Whitney and Benjamin Gitlow lived on opposite sides of the country and came from opposite sides of the class line; they also wound up in opposing Communist parties. Born into a prominent California family in 1867, Whitney was a niece of Justice Stephen Field, a Wellesley graduate, and a “charity” worker in the Oakland slums. She moved from “philanthropic work” into the Socialist Party in 1914, and moved again from its left-wing faction into the Communist Labor Party in 1919. Unlike Gitlow, she supported electoral politics as a tactic in the class struggle; at a convention to organize the party’s California branch, she supported a resolution urging workers “to cast their votes for the party which represents their immediate and final interest—the CLP—at all elections.” The resolution failed, but Whitney remained in the party, which called on members to “put in practice the principles of revolutionary industrial unionism and Communism.” Whitney’s party also proclaimed its allegiance to “the Communist International of Moscow,” whose leaders forced their squabbling American followers to join ranks in 1920 behind the United Communist Party. Despite her eminent relative and her relative moderation, Whitney was convicted of “criminal syndicalism” for her involvement in the Communist Labor Party and sentenced to a one-to-fourteen-year prison term.

  Benjamin Gitlow and Charlotte Whitney both appealed their convictions, and their cases bounced up and down the court system for years before final decisions. Gitlow’s conviction was affirmed by three New York courts, and was argued twice before the Supreme Court before the justices ruled in June 1925. Only four members remained from the bench that decided the Abrams case in 1919: Willis Van Devanter and James McReynolds from the majority, and the two dissenters, Oliver Wendell Holmes and Louis Brandeis. President Warren Harding fulfilled the lifelong dream of William Howard Taft in 1921 by naming the former president to replace Edward White as Chief Justice. The two men were equally hostile to governmental power in economic regulation and civil rights, and Taft’s record before his death in 1930 extended conservative control of the Chief’s post to almost sixty years.

  Few historians quarrel with the consensus that Harding was the most inept president the country ever had; he privately confessed, “I am not fit for this office and should never have been here.” After placing Taft in charge of the Court, Harding looked to him for guidance in naming three more justices. Taft told friends that his goal was “to prevent the Bolsheviki from getting control” of the Court and giving the “dangerous twosome” of Holmes and Brandeis any more votes. The men he recommended were all conservative—perhaps “reactionary” is more accurate—but they varied widely in background and ability. John Clarke’s resignation in 1922 removed a liberal from the Court and allowed Harding to place his close friend and political ally George Sutherland of Utah on the Court. Born in England in 1862 to parents who converted to Mormonism, moved to Utah, and then left the church, Sutherland studied law at the University of Michigan under Judge Thomas Cooley, absorbing his gospel of laissez-faire economics and Social Darwinism. Sutherland had practiced law and Republican politics in Utah; he served in both the House and Senate between 1901 and 1917, leaving office for private practice and a term as president of the American Bar Association. On the Court, Sutherland quickly became the intellectual leader of the conservative faction, emerging as the dominant figure among the “Four Horsemen of Reaction” who bedeviled President Franklin Roosevelt.

  Two months after Clarke resigned his seat, Justice William R. Day retired after two decades as a moderate liberal. Harding gave Taft another conservative vote with his nomination of Pierce Butler of Minnesota, who earned millions as a railroad lawyer and befriended both Taft and Harding. Born in 1866 to Irish Catholic parents who left for America during the 1848 potato famine, Butler displayed no sympathy for the poor during his legal and judicial career. On the bench, he approached cases with a stern moralism and a rigid commitment to laissez-faire doctrine. The last justice to join the Four Horsemen of Reaction became the group’s most avid defender of the “sanctity” of contract. Butler did, however, ride off alone to dissent—often without an opinion—in cases that offended his Catholic morality; he was the sole dissenter in Buck v. Bell, in which Justice Holmes upheld a forced sterilization law in 1927. Holmes told another justice that Butler was “afraid of the Church” on that issue. And in Palko v. Connecticut, which upheld in 1937 a death penalty imposed on a murder defendant who gained a new trial after being first sentenced to life imprisonment, Butler lashed out at the state’s attorney during oral argument: “What do you want? Blood?”

  The retirement of Justice Mahlon Pitney in December 1922 gave Harding his third nomination in four months. Taft felt the Court needed someone with considerable judicial experience, since Sutherland and Butler had none, and he recommended Edward T. Sanford, a Tennessee native and Harvard Law School graduate who prosecuted antitrust cases in the Justice Department before President Theodore Roosevelt placed him on the federal district court in his home state. Confirmed by the Senate without dissent, Sanford took his seat in February 1923 and, as Taft had hoped, became the Court’s expert in technical fields like bankruptcy and jurisdiction. Sanford generally sided with the Chief in constitutional cases, and the two men died on the same day in March 1930.

  Harding’s death in August 1923 made Calvin Coolidge president, and the dour Yankee won election the next year on his own, riding a wave of prosperity that created a growing middle class that gobbled up cars, radios, refrigerators, and other consumer goods. Most of these satisfied customers rewarded the Republicans with their votes, nodding their heads to Coolidge’s boast that “the business of America is business.” But the booming economy did not spread its benefits evenly; in 1929—the year the stock market crashed—families with incomes in the top tenth of 1 percent earne
d as much as all those in the bottom 40 percent. The “Roaring Twenties” were also years of racism and nativism. A revived Ku Klux Klan recruited more than four million members by 1924 and spread into the North, gaining political influence in states like Pennsylvania, Indiana, and Oregon. Congress responded in 1924 to pressure from the Klan and other groups—including conservative trade unions—by cutting further immigration to a trickle and setting national quotas that favored “Anglo-Saxons” and turned away Italians, Russians, Asians, and Africans.

  During his five years in office, Coolidge named just one Supreme Court justice. But he chose wisely in selecting Harlan Fiske Stone to replace Joseph McKenna in 1925. Born in New Hampshire n 1872 and educated at Amherst College (where Coolidge was a classmate and friend), Stone went to Columbia Law School and taught there after graduation in 1899, becoming dean in 1910. He did not enjoy what he called “administrivia” and resigned in 1923 to join a prestigious Wall Street firm, but left after one year to join his college friend’s cabinet as attorney general. Once again, Stone found himself bored with office work, and he welcomed Coolidge’s offer to join the Court. Chief Justice Taft drew on his skills in tax and patent law, but Stone slowly moved away from Taft on issues of civil rights and liberties and joined the “dangerous twosome” of Holmes and Brandeis, most often in dissent.

  The Supreme Court decided Gitlow v. New York on June 8, 1925, four months after Stone took his seat. In voting to uphold New York’s criminal anarchy law, the newest justice stuck with Taft and did not join Holmes and Brandeis in dissent. The majority spoke through the next-most-junior member, Edward Sanford, who first noted that Gitlow’s lawyers attacked New York’s criminal anarchy law as “repugnant to the due process clause of the Fourteenth Amendment.” There was nothing remarkable about this; the Court had ruled in many cases that state laws denied persons—or corporations—various forms of “liberty” protected by this clause. The Court had invented the doctrine of “substantive due process” to strike down these laws. However, in no previous case had the “liberty” at stake been that of free speech. Almost a century earlier in 1833, Chief Justice John Marshall had ruled in Barron v. Baltimore that the Bill of Rights did not apply to the states. The First Amendment restrained only Congress from “abridging the freedom of speech,” and states presumably could regulate speech as they saw fit, subject only to limitations in their own constitutions.