These men joined a court that was already heavily conservative. Their doctrinaire views left Oliver Wendell Holmes often isolated from his brethren, especially after John Harlan died in 1911. Holmes took on Harlan’s mantle as the court’s “great dissenter,” pitting his pragmatism against conservative dogma, true to his early belief that the law must “modify itself in accordance with the will of the de facto supreme power in the community.” Holmes saw all life as an experiment, a competition of ideas, and progress a matter of trial and error driven by “the felt necessities of the time.” In the judgments of the Supreme Court, he wrote in his very first opinion in 1903, “Considerable latitude must be allowed for differences of view as well as for possible peculiar conditions which this court can know but imperfectly, if at all.” Otherwise, a constitution “would become the partisan of a particular set of ethical or economical opinions.”
WOODROW WILSON,the Democrat elected to the presidency in 1912 on the ruins of the GOP, was a truer heir to TR’s progressivism than Roosevelt’s handpicked successor had proved to be. A respected constitutional scholar before becoming governor of New Jersey, Wilson had been much impressed by TR’s “enlargement” of the presidency, especially his use of the bully pulpit to build a constituency for reform by direct appeals to the people. But Wilson’s populism went only so far. He opposed the demands of Roosevelt and others for the recall of judges or judicial decisions, dismissing the idea that “determinations of what the law is must respond to popular impulse.” Instead, “the way to purify the judiciary,” he said in 1912, “is to purify it at its roots,” through the process of judicial selection.
Yet at his first opportunity to purify the nation’s highest court, President Wilson selected a reactionary ideologue and a racist. In his private life, James McReynolds, a lifelong bachelor, was said to be gracious and considerate. But at work, Dr. Jekyll became Mr. Hyde. When he reached the Supreme Court, McReynolds was insufferably rude to his fellow justices, intolerant, sarcastic, and sexist, too. Once when he spotted a woman attorney in the courtroom, he grumbled, “I see the female is here again.”
McReynolds, like Wilson, was a native of the South, born in an old Tennessee frontier town. Brought up by fundamentalist parents—his father was known as the “pope” for his confidence in his own infallibility—young McReynolds did well as a scholar and debater at Vanderbilt, and then went on to the University of Virginia Law School, where his favorite teacher was a stern moralist who taught Sunday Bible classes. In 1896, McReynolds ran unsuccessfully for Congress as a conservative Democrat with Republican support and in opposition to the “evil” populist platform of his party’s presidential nominee, William Jennings Bryan. Through connections, he went to work for Roosevelt and then Taft as a trustbuster. This was anomalous for a man otherwise suspicious of government power, but it gave him the reformist gloss that prompted Wilson to appoint him his attorney general in 1913. A year later, Wilson evidently was so relieved to promote this increasingly irascible lone wolf out of the cabinet and onto the Supreme Court that he overcame whatever qualms he may have had about McReynolds’s progressivism. For more than a quarter century, McReynolds reigned as the Supreme Court’s most vociferous and aggressive reactionary.
Wilson’s second nominee for a Supreme Court seat could scarcely have been more different from McReynolds, or better chosen to redeem the president’s promise to purify the judiciary. Louis D. Brandeis also was a Southerner, born and raised in Louisville, but there the resemblance with McReynolds ended. The son of “Forty-eighters” from Prague who had fled the conservative reaction following the failed European uprisings of 1848, Brandeis grew up in an enlightened family devoted to music and literature. After two years of study in Dresden, he entered Harvard Law School at age eighteen and earned his degree in two years. With a fellow student, he founded a Boston law practice that biographer Alpheus Thomas Mason called a “laboratory for social and economic research.”
Brandeis was an exquisitely tolerant, compassionate, and worldly man. The zeal for freedom was in his blood, grounded in the individual worth of each human being. He was a Boston reformer who did not loudly set forth to battle. No enemy of capitalism, Brandeis sought to extend its abundance to the downtrodden and to limit the power of big corporations to exploit them. Before long his soaring fame as the “people’s attorney” and a legal philosophy that was both highly ethical and sociologically analytical, as demonstrated by his pioneering brief in Muller, won him a national reputation. A close adviser to Wilson in 1912, Brandeis was the president’s first choice to be attorney general, but Wilson bowed to objections from conservative Bostonians and instead named James McReynolds. In 1916, though, the president tapped Brandeis for the Supreme Court.
Instantly the legal community exploded in outrage. Seven former presidents of the American Bar Association, William Howard Taft among them, deemed him “not a fit person” to join the high court. Fifty-five eminent Bostonians, headed by President A. Lawrence Lowell of Harvard, signed a petition stating that Brandeis did not possess “the judicial temperament and capacity” necessary for the high court and that his “reputation as a lawyer” was such “that he has not the confidence of the people.”
Brandeis himself saw these objections as cloaking “the dominant reasons for the opposition,” as he wrote in an unfinished brief defending himself—“that he is considered a radical and is a Jew.” Hearings before the Senate Judiciary Committee labored on for nearly five months. With Wilson exerting maximum pressure, amid fears that defeat would turn the Democratic party back “into the wilderness for forty more years,” the ten Democrats on the committee finally voted to confirm Brandeis; all eight Republicans were opposed. The Senate approved the nomination, 47 to 22. Among the many ironies in the whole dispute was that Brandeis—who had not followed the typical political track to the court and had voted in turn for the progressive Republican Roosevelt, the conservative Republican Taft, and the reform Democrat Wilson for president—should be elevated to the court by a straight party vote.
TO THE DEGREE that opposition to Brandeis’s nomination had been ideological, it was justified. He really was unlike most other lawyers, certainly unlike those appointed to the Supreme Court. As an attorney and then as a justice, Brandeis held freedom as his central value—freedom as an immensely complex dynamic of ends and means, of ideas and processes, that challenged the mind as well as the heart. No dogma, of the right or the left, could encompass it. To Brandeis, as Mason wrote, “Men are not necessarily made free when immune from rule; nor does freedom spring full grown when the state protects the poor against the rich. The life of freedom is self-wrought; not conferred; it can be aided by many social agencies—all functioning as means and never as ends.”
Brandeis applied this conception of freedom to the gritty realities of American life—factory work, wages and hours, joblessness, unions, strikes, trusts. As a jurist, he would bottom his opinions in masses of statistics, to the boredom of his hero and collaborator, Holmes. Brandeis believed in the “presumption of constitutionality” of laws designed to protect workers and consumers. His belief in the virtues of private property was so strong that he wanted property to be shared broadly.
Brandeis joined Holmes on the high court in time to participate in momentous decisions arising from the Wilson administration’s prosecution of opponents to American involvement in World War I. In Schenck v. U.S., decided a few months after the war ended, Holmes, speaking for a unanimous court, sustained the conviction of Charles Schenck, a Socialist party official who had sent leaflets to men eligible for the draft urging them to resist conscription. Schenck established “clear and present danger” as the test for free speech. The old Civil War soldier wrote that it was “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.” Brandeis later deeply regretted that he had gone along with Holmes because the “clear
and present danger” standard might allow the government to restrict speech in peacetime, when Brandeis thought it should be limited only if it involved incitement to an immediate and serious crime. But, he explained to a friend, he was new to the court and new to the issue of free speech. “You must also remember,” he added, “that when Holmes writes, he doesn’t give a fellow a chance—he shoots so quickly.”
Soon after, though, in November 1919, Holmes and Brandeis were the lone dissenters in Abrams v. U.S. In that case, the court ruled that arousing disaffection against the government in wartime—by distributing leaflets that opposed American intervention in Russia’s revolution, as Jacob Abrams, an anarchist, had done on Manhattan’s Lower East Side one August evening in 1918—was not protected by the First Amendment. Now Holmes, without admitting that he had erred in Schenck, poured scorn on the government’s pursuit of “poor and puny” anarchists with their ignorant and immature creed. “Persecution for the expression of opinions seems to me perfectly logical,” Holmes wrote, in a swipe at the majority. “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. 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.”
For the time being, this was the theory of Holmes and Brandeis alone, one they achieved only after their stumble in Schenck. It would be more than two decades before the Supreme Court would begin, again haltingly, to take up Holmes’s challenge to create and defend a First Amendment marketplace of ideas.
ON JUNE 30, 1921,William Howard Taft’s judicial realpolitik handsomely paid off. President Warren Harding, a fellow Republican who had succeeded Wilson, appointed him chief justice of the Supreme Court, at last to succeed his own appointee, Edward White. It had been a long wait for Taft, with many anxious moments. He had been so avid for the post that he had even harbored the vain thought that Wilson might give it to him. Each vacancy on the court spurred a campaign on his behalf as “the best qualified man in the country.” It was perhaps not only outrage at the appointment of Brandeis that prompted Taft to the thought that “White will not end his judicial career with an apoplectic fit caused by the nomination.” Though he was approaching his midseventies with failing eyesight and hearing, Chief Justice White outlived the Wilson administration.
While he was visiting President-elect Harding in Ohio shortly after the election, Taft got the promise of a justiceship, but he coolly made clear that he would accept only the chief justiceship. Harding put him off. A visit to White in mid-March 1921 was similarly discouraging. White appeared so well that Taft made inquiries about the chief justice’s health with White’s doctor. Taft began to wonder about his own condition and age. At sixty-four, if selected he would be the oldest man to become chief justice, except of course for White. Finally, in May, White died. But then other possible candidates surfaced. To Taft, it was all quite maddening. He was reduced to drafting a résumé of his qualifications—among them, “Four years president.” At long last, Harding chose him. There was some fretting about confirmation, but only a handful of Senate progressives voted no. Taft basked in the thousands of congratulatory letters and telegrams that flooded in.
Happily ensconced at the center of the high bench, Taft could now concentrate on inducing Harding to choose the proper men for the court. Looking around at his brethren, Taft saw mostly deadwood—aged or infirm justices who would be obstacles to a chief anxious rapidly to leave a mark. Perhaps even Holmes might be persuaded to retire, ridding Taft of a “noisy dissenter.”
Manipulating Harding on appointments was no arduous task, despite the chief justice’s concern that the president would be tempted to load the Supreme Court, as he had most of the rest of the government, with old cronies. “Taft’s modus operandi was very simple,” historian Henry Abraham wrote in his study of court appointments. “Once a vacancy presented itself, he would literally bombard the president with firm recommendations and casual suggestions.” Their first choice was an obvious one, George Sutherland, Republican from Utah, who would become the intellectual leader of the court’s extreme right wing. Prospering as a corporate attorney, Sutherland had moved easily into Utah’s conservative politics. Election to the Senate had brought him close to fellow-solon Harding. Enthusiastically backed for the court by Republican colleagues in the Senate, he was unembarrassed to become a “brother” to Brandeis, whose appointment he had as senator vociferously opposed.
Strenuously backed and coached by Taft, Pierce Butler, a Minnesota Democrat, was Harding’s next pick. One of nine children of Irish Catholic parents, Butler was a self-taught lawyer who had earned millions representing western and midwestern railroads. He had won some notoriety as a regent at the University of Minnesota for arranging the dismissals of faculty members who held allegedly radical or disloyal views. On the court, Butler would show no more regard for dissidents, or for blacks or workers. Though Harding’s last nominee, Edward T. Sanford, a Republican millionaire from Tennessee, was not Taft’s candidate, he turned out to be one of his most devoted followers among the justices.
So, after only a year and a half on the court, the chief justice had Taft men from the Harding presidency and Taft men who were holdovers from his own presidency, giving him a decisive conservative majority. And he had the kinds of cases he wanted—cases that would enable him to stand fast against the tide of social and economic reform that had swamped his presidency when he had been the unhappy heir to Theodore Roosevelt’s activism. Taft believed that reform measures deserved the Supreme Court’s special scrutiny, as he indicated when he struck down an effort by Congress to curb child labor through its taxing power. “The good sought in unconstitutional legislation is an insidious feature, because it leads citizens and legislators of good purpose to promote it, without thought of the serious breach it will make in the ark of our covenant, or the harm which will come from breaking down recognized standards.” Taft’s contempt for the legislature and its eagerness to pass “any law that seemed popular,” resulting in an “overwhelming mass of ill-digested legislation,” was shown in his court’s unprecedented use of judicial review to knock down acts of Congress, state laws, and municipal ordinances. While the Fuller Court, which also styled itself a bulwark against revolution, vetoed nine such laws at its peak in 1898, the Taft Court invalidated two dozen in 1926 alone. Between 1922 and 1928, it averaged eighteen vetoes a year.
The chief justice laid the blame on “the hasty action of the majority,” which it was his court’s “high duty and function” to check, but many measures he struck down reflected decades of efforts by Congress and the states to overcome judicial obstructions. Reformers had been fighting for a congressional ban on child labor for at least twenty years when in 1922 Taft voided Congress’s levy of a child labor tax in Bailey v. Drexel Furniture. Workers had struggled for more than half a century to secure their rights to organize and strike. The landmark Clayton Act of 1914 took direct aim at judicial obstacles to collective action by exempting labor unions from antitrust laws and by curbing injunctions. But Taft saw Clayton as nothing more than a capitulation by cowardly congressmen to “truculent labor leaders, intoxicated with their sense of political power,” and in a series of decisions in the 1920s, the Taft Court eviscerated the act. Ever since Munn v. Illinois had in 1877 opened the door to the regulation of business in the public interest, conservative Supreme Court justices had sought to close it, most effectively by raising the barrier of substantive due process, which equated regulation with the infringement of property rights. Taft’s court narrowed the public interest doctrine even further, exem
pting large and powerful sectors of industry and commerce—trivialized by the chief justice as “the business of the butcher, or the baker, the tailor, the woodchopper, the mining operator, or the miner”—from government regulation, especially of labor relations.
Yet when “hasty action” targeted alleged subversives, Taft was eager to rubber-stamp the impulses of majorities. In 1925, the Taft Court upheld a New York “criminal anarchy” law that was passed in 1902 in the furor following President McKinley’s assassination by a self-styled anarchist and used to prosecute Benjamin Gitlow two decades later for publishing a “Left Wing Manifesto.” Though, as Taft loyalist Justice Sanford conceded in his majority opinion, “there was no evidence of any effect resulting” from the manifesto’s publication, “every presumption is to be indulged in favor of the validity of the statute.” After all, “a single revolutionary spark may kindle a fire that, smouldering for a time, may burst into a sweeping and destructive conflagration.” Two years later, in Whitney v. California, the Supreme Court again indulged every presumption in favor of a state “criminal syndicalism” statute passed in 1920 at the height of the postwar frenzy against “reds.” The court ruled that the act of merely joining an organization accused of menacing “the public peace and security of the State” was to engage in a criminal conspiracy.
Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court Page 13