With the death of Melville Fuller in 1910, then President Taft selected Edward Douglass White, Jr. to head the Supreme Court. He was the first sitting Associate Justice of the Supreme Court to be elevated to Chief Justice. John Rutledge had technically been a member of the Court, though never sat with them, when he received his recess appointment from George Washington to serve as Chief Justice.
White had sided with the majority in the Court’s separate but equal ruling in Plessy v. Ferguson and was considered a solid conservative on the bench. A devout Catholic, having attended Jesuit colleges before receiving his law degree from Tulane University in New Orleans, he was believed to have served as an officer in the Confederate Army during the Civil War. White’s service may have been with the Louisiana cavalry, a band of irregular guerilla fighters. He was captured and briefly imprisoned by Union forces in 1865. His father had been Governor of Louisiana and the family once maintained an extensive sugar cane plantation there.
In one of the first decisions out of the gate the White Court took the opportunity to water down the Sherman Anti-Trust Act. While upholding the lower court’s decision against Standard Oil, the Supreme Court determined that the Sherman Act should apply only in cases of “unreasonable” restraint of trade. Called the “rule of reason”, the decision altered the statute and its future interpretation.
When congress passed child labor laws in 1916 to prevent the interstate sale of goods manufactured with child labor, the law was challenged by the father of two sons, 13 and 15, who worked in a North Carolina textile mill. The White Court agreed and struck down the law. The 5-4 majority found the law a violation of states’ rights and believed a federal child labor law might destroy the federal system of government. Congress almost immediately passed a new law imposing harsh taxes on products of child labor. It would later be struck down as well, though not under White’s leadership of the Court.
On America’s entry into World War I, congress passed, in 1917, the Espionage Act and, in 1918 a new Sedition Act making virtually any criticism of the government a federal crime. When socialists sent letters to enlistees claiming the military draft was unconstitutional, they were convicted under the Espionage Act. The Supreme Court, in the face of First Amendment challenges, unanimously upheld the convictions. The Court reasoned that the letters constituted a “clear and present danger” that congress had a right to protect against.
The Sedition Act came before the Court when leaflets were thrown from a factory window calling on workers to unite in support of the Russian Revolution. The leaflets made veiled reference to America’s leaders as “hypocritical tyrants.” In a 7-2 decision the White Court upheld the constitutionality of the Sedition Act and the convictions of the leafleteers. Oliver Wendell Holmes and new Associate Justice Louis Brandeis dissented. Holmes said in dissent that the national good requires a “free trade in ideas”.
“To reach the truth, people must weigh many opinions. That at any rate is the theory of our Constitution.”
The White Court did allow one victory to the progressives. In 1914 the Court authored the “exclusionary rule”. Often thought to be a product of the much later Warren Court, the exclusionary rule excludes evidence which the government obtains in violation of the citizens constitutional rights. The 1914 ruling applied only to federal cases and left the states free to decide for themselves whether to follow it in state criminal proceedings.
When White died in 1921 he became the only Chief Justice to be followed by the President who had appointed him, William Howard Taft. Taft had long sought the position of Chief Justice, which he is believed to have coveted more than the presidency.
The Taft Court took up where the White Court left off. Taking up the Child Labor Tax Law, the Court found it to be violative of Tenth Amendment states’ rights and struck it down. Attempts at controlling child labor would not receive a favorable response from the Supreme Court until 1941. With the White Court as backdrop, and the new child labor decision in hand, reformers and progressives began to refer to the Court as the “Supreme Legislature”.
The Taft Court would also be called America’s “economic dictator” by its detractors. In 1930, Professor Felix Frankfurter, who would later serve as an Associate Justice, derided the Taft Court for having invalidated more laws than the Courts of the previous 50 years combined.
During Taft’s leadership, Benjamin Gitlow spent three years in Sing Sing Prison when the Court, faced again with a First Amendment challenge, upheld his conviction for writing and distributing “Left Wing Manifesto”. The charge was “criminal anarchy” under the New York statute. Gitlow’s pamphlet was deemed a public danger and a “direct incitement”. Holmes, joined again by Brandeis in dissent, quipped, “Every idea is an incitement.”
In Adkins v. Children’s Hospital, the Court reverted to the doctrine of “meddlesome interference” in contract between employer and employee to strike down minimum wage laws for women and children in the District of Columbia. Justice Sutherland found the statute wanting because it singled out women for protection. Since they had received the right to vote, he reasoned, they should not receive special wage protection not enjoyed by men. Taft joined the dissent in Adkins, arguing that poor workers could not negotiate on equal footing with their employers.
In 1925, Taft broke tradition and openly lobbied congress for the “Judge’s Law”. The law permitted judges from one area or judicial branch to serve in other capacities to reduce caseload. It also limited appellate rights for those seeking review at the Supreme Court allowing the Court to focus on constitutional issues and federal law issues of grave importance. The practice of applying for certiorari to have your case heard before the high court was born.
Taft retired in 1930 and was replaced by Charles Evans Hughes. To the chagrin of Franklin Roosevelt, Hughes, Chief Justice until 1941, would lead the Court through much of the New Deal. More on that coming in Part V.
Parts I, II and III, for those who may have missed them are linked here. Part I: The Early Years; Part II: 19th Century Activism: Part III, Conservative Activism.
FOOTNOTE: Some sources, Judgepedia in particular, assert that Chief Justice White served as an officer in the Confederate Army. Other sources, including Wikipedia, say the claim may not be accurate, raising the Louisiana cavalry as a likely possibility. The only surviving records of the time are those of his imprisonment and eventual “parole” by Union forces in 1865.
Sources: Wikipedia; ushistory.org; oyez.org; judgepedia; Constitution of the United States (annotated); and the Supreme Court Historical Society.
Contributor, aka tidbits. Retired attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.