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Separate and Supposedly Equal
Freedom of Contract
The Turn of the Century
Labor and the Court
The Taft Justices
Trusts and Taxes
Rights and Remedies
Conservatism Confirmed

The conservative character of the Court of the 1890s was demonstrated with stunning force in the October 1894 term, notable for three landmark decisions that placed the Court firmly on the side of business, defending the interest of property against federal power and organized labor. In January the Court, by a vote of 8–1, held that the Sherman Antitrust Act did not outlaw manufacturing monopolies. The Court reasoned that manufacturing was not commerce, so it was not reachable under the federal commerce power, upon which the Sherman Act was based. Chief Justice Fuller wrote the majority opinion in United States v. E. C. Knight & Co. (1895), agreeing with the argument of the “sugar trust”—the sugar refining monopoly—that the United States government could not challenge its concentrated power. The monopoly remained intact, and the antitrust law lay virtually useless. [7]

In May the Court struck down the act of Congress imposing the nation's first general peacetime tax on personal income. The decision came in the twice-argued Pollock v. Farmers' Loan and Trust Co. (1895). By a 5–4 vote, the Court overturned a century-old precedent and declared the income tax a direct tax, subject to—and, in this case, in conflict with—the constitutional requirement that direct taxes be apportioned among the states according to population. Again Chief Justice Fuller wrote the majority opinion. Dissenting were Justices Brown, Harlan, Jackson, and White. The ruling, which Justice Brown described as “nothing less than a surrender of the taxing power to the moneyed class.” [8] (It led to passage of the Sixteenth Amendment to the Constitution in 1913, which lifted the apportionment requirement for income taxes.) Having fended off assaults upon property from trustbusters and the tax laws, the Court was not yet finished. A week after Pollock, the justices gave federal judges the power to stop strikes. In In re Debs the Court unanimously upheld the contempt conviction of labor leader Eugene V. Debs for disobeying a court order to call off a Pullman strike that had halted rail traffic. Justice Brewer wrote the Court's opinion. As a result of this ruling, such court orders would frequently be used by employers against labor unions. In the thirty-seven years between Debs and passage of a law forbidding such use of injunctions, they were sought in more than 120 major labor cases. [9]

In August 1895 Justice Jackson died after serving less than two years on the Court, and President Cleveland chose Rufus W. Peckham of New York, the brother of his earlier unsuccessful nominee, for the seat. Peckham, a state judge, was quickly confirmed. Peckham wrote some of the Court's most notable rulings defending property rights.

Separate and Supposedly Equal

In the 1890s the position of the Court concerning social issues was no more liberal than its views on economic matters. Plessy v. Ferguson (1896) drove home this point when the Court, 8–1, upheld a Louisiana law requiring railroads operating in the state to provide separate cars for white and black passengers. As Justice Brown declared for the majority, this law was not a violation of the Fourteenth Amendment's Equal Protection Clause, but a reasonable exercise of the state police power to preserve the public peace and public order. Reflecting the view that laws are inadequate social instruments, Brown wrote that social equality of the races could not be accomplished by laws that conflicted with general community sentiment. The government can secure its citizens equal legal rights and equal opportunities, but it can and should go no further:

Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane. [10]

In lonely if prophetic dissent, Justice Harlan warned that this decision would “in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case.” [11] He continued:

If evils will result from the commingling of the two races upon public highways … they will be infinitely less than those that will surely come from state legislation regulating the enjoyment of civil rights upon the basis of race. [12]

This law, Harlan concluded, “is inconsistent with the personal liberty of citizens, white and black … and hostile to both the spirit and letter of the Constitution.”


Abraham Lincoln had nominated Justice Stephen Field of California to the Court in 1863 to hold the new “western” seat. In 1897 Field was eighty-one years old, his health was failing, and his irritability growing. Justice Harlan was selected by his colleagues to suggest that Field consider retirement. His reminder to Field that he had made such a suggestion to Justice Robert C. Grier twenty-five years earlier was met with an angry rejoinder. Ultimately, after thirty-four years and nine months—the longest Court service of any man up to that point, and a record unsurpassed for another seventy-five years—Field resigned in October 1897. To succeed him President William McKinley named Attorney General Joseph McKenna of California, a political protégé of railroad magnate Leland Stanford, who was then a U.S. senator. McKenna, a former member of Congress, was confirmed, was seated early in 1898.

Freedom of Contract

With its last decisions of the nineteenth century, the Court discovered a new aspect of the liberty protected by the Constitution—a freedom of contract that provided additional doctrinal foundation for rulings protecting property rights, rather than individual rights, against government power. In Allgeyer v. Louisiana (1897) the Court declared that the liberty protected by the Fourteenth Amendment included “the right of the citizen … to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential” to those ends. [14] This doctrine provided the Court, for forty years, with one of its most potent weapons against state laws intended to protect individual workers by setting the maximum hours they might work and the minimum wage they should be paid.

In a second ruling, Chicago, Burlington & Quincy Railway Co. v. City of Chicago, announced the same day as Allgeyer, the Court acknowledged that in a business context some of the guarantees of the Bill of Rights might be of such a nature as to be included in the Fourteenth Amendment's guarantee of due process. [15] With Justice Harlan writing for the Court, the justices upheld state police power to require railroads to maintain certain safety measures. In so doing, it stated that due process required the government to compensate the owner of private property for property “taken” for use in the public interest. Despite its new freedom-of-contract doctrine, the Court upheld the first state maximum-hour law challenged as violating that freedom. In Holden v. Hardy (1898) the justices found that a law limiting the hours persons could spend working in underground mines was a proper exercise of the state's power to protect the health of its citizens. [16] The following week, however, the Court in Smyth v. Ames (1898) reaffirmed the judicial role in reviewing such state laws. [17] When states set the rates that railroads could charge, wrote Justice Harlan, those rates must be set high enough to ensure the railways a fair return on their investment, and the courts would decide what return is fair.

The Court in 1897. From left: Justices Edward D. White, Henry B. Brown, Horace Gray, Stephen J. Field, Chief Justice Melville W. Fuller, Justices John Marshall Harlan, David J. Brewer, George Shiras Jr., Rufus W. Peckham. (Source: Library of Congress.)

The Court also demonstrated its continuing willingness to leave to the states regulation of the suffrage, even if the states effectively denied blacks that right. In Williams v. Mississippi (1898) the Court found no constitutional flaw in a law that required voters to pass a literacy test before being allowed to cast their ballot. Justice McKenna wrote the Court's opinion, one of his first. [18]

The Turn of the Century

What were the privileges and immunities of U.S. citizenship that were protected against state action by the Fourteenth Amendment? In 1873 the Court had held that the right to do business was not among these rights. In later rulings it held that the right to vote was not such a privilege either. What then about the guarantees of the Bill of Rights that protected U.S. citizens against federal action? In one of its first rulings of the twentieth century, the Court answered that these guarantees were not privileges or immunities of citizenship either, determining that they did not protect citizens against actions by states. That ruling came in Maxwell v. Dow (1900), in which Justice Peckham, writing for the Court, rejected the argument that the Fourteenth Amendment required states to provide twelve-person juries to try persons accused of crimes. [19] Justice Harlan dissented. The Court showed similar reluctance in the Insular Cases (1901) to extend constitutional protections to people residing in newly acquired U.S. territories. [20] Here the Court held that it was up to Congress to decide whether the Constitution and its guarantees applied to such persons.

In September 1902, Justice Gray died. As his successor President Theodore Roosevelt chose Oliver Wendell Holmes Jr., chief justice of the Massachusetts Supreme Judicial Court. Holmes was, by all measures, one of the nation's greatest justices. Like Justice Harlan, he often dissented from the rulings of the conservative Court, and many of his dissents later became the prevailing view of later Courts, as did Harlan's. In February 1903, Justice Shiras resigned, and Roosevelt chose Judge William R. Day, of the federal circuit court of appeals to succeed him. Day was a successful railroad lawyer and secretary of state under President McKinley before moving to the bench.

During the first few years of Holmes's service, the Court gave a broader reading to the federal commerce power than it had previously been willing to do. In Champion v. Ames (1903) the Court recognized the existence of a federal police power by upholding an act of Congress forbidding the use of the mail to transmit lottery tickets. [21] The vote was close, 5–4. Justice Harlan wrote the majority opinion, with Chief Justice Fuller and Justices Brewer, Peckham, and Shiras dissenting. The following year the Court enlarged on that ruling as it upheld a “police” use of the federal tax power to discourage the marketing of colored oleomargarine, holding that it would not inquire into the purposes of such a tax. [22]

The Court began to revive the usefulness of the Sherman Antitrust Act in its ruling for the government in Northern Securities Co. v. United States (1904). Four of the justices, for whom Justice Harlan again spoke, read the Sherman Antitrust Act literally—forbidding all restraints of trade. The four dissenters—Holmes, Peckham, White, and Fuller—argued that the law forbade only unreasonable restraints of trade. The Harlan group became the majority through the concurrence of Justice Brewer and ruled in this case that the securities company was so powerful that it imposed an unreasonable restraint on trade. In a separate dissenting opinion, Justice Holmes set out one of his most often-quoted epigrams:

Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. [23]

Holmes's comment appeared to be aimed directly at the man who had placed him on the bench—Theodore Roosevelt—whose intense interest in the success of the government's trust-busting effort, and this case, was well known. Roosevelt disregarded his appointee's comment and hailed the decision as a reversal of the 1895 holding in E. C. Knight, the sugar trust case. The next year the Court unanimously backed the government's prosecution of the beef trust. Justice Holmes wrote the opinion in Swift & Co. v. United States (1905), basing the ruling on a broad concept of commerce as a “current” among the states, a “stream” of which meatpacking was a part—and so was within the reach of the antitrust laws. [24]

In Jacobson v. Massachusetts (1905) the Court upheld state power to compel its citizens to be vaccinated against smallpox. This requirement, wrote Harlan, was a proper use of the police power. [25] Although the Court was still willing to support the exercise of the state police power over a subject such as the public health, its decision in Lochner v. New York (1905) signaled its continuing distaste for state efforts to interfere with wage and hour bargaining between employer and employee. Six weeks after Jacobson—and over the dissent of Justices Day, Harlan, Holmes, and White—the Court ruled in Lochner that New York's law setting an eight-hour maximum work day for bakery employees interfered with the freedom of contract. Justice Peckham wrote the majority opinion, declaring “that there is a limit to the valid exercise of the police power by the state.” This law overstepped that limit: “Clean and wholesome bread does not depend upon whether the baker works but ten hours per day or only sixty hours a week.” [26]

In 1906 Justice Brown resigned, and President Roosevelt named his attorney general and close friend, William Moody, as Brown's successor. Moody, disabled by acute rheumatism, retired just four years later. As he was not yet eligible for a pension, Congress passed a bill allowing him to retire with special benefits.

Labor and the Court

With its unsympathetic ruling in 1895 in Debs, the Supreme Court expressed a profound distaste for the arguments and the tactics of the workers' labor movement. Eight years later it reaffirmed that view when it struck down an act of Congress broadening the liability of railroads for injuries to their employees. By a 5–4 vote the Court held that the law was invalid because it applied to intrastate aspects of interstate commerce. [27] Three weeks later, the Court invalidated another law that outlawed “yellow-dog” contracts, with which railroads made their employees promise, as a condition of keeping their jobs, not to join labor unions. Justice Harlan wrote the opinion of the Court in Adair v. United States (1908), finding this federal law an undue restriction on freedom of contract. [28] Justices Holmes and McKenna dissented. In February, the Court unanimously agreed that the Sherman Antitrust Act forbade secondary boycotts by labor unions. Chief Justice Fuller wrote the Court's opinion in Loewe v. Lawlor (1908), also known as the Danbury Hatters case. [29]

A Boston lawyer named Louis D. Brandeis played a significant role in the one major victory for workers during this term. An Oregon law set the maximum hours that women should work in laundries. When the law was challenged on the basis of Lochner as a violation of the liberty of contract, the state engaged Brandeis as its counsel. He submitted a brief full of factual data supporting the argument that long hours of hard labor had a harmful effect on women, and therefore, through them, also on their children. Brandeis won a unanimous decision in favor of the law, modifying (but not overruling outright) Lochner by finding that some state interference with freedom of contract was justified to protect the public health. Justice Brewer wrote the opinion in Muller v. Oregon (1908). [30] The term “Brandeis brief” came to refer to briefs filled with factual, as well as legal, arguments.

Throughout the early years of the twentieth century, the Court continued to hold a narrow view of the Constitution's protection of individual rights. In May 1908—over the dissent of Justices Day and Harlan—the majority upheld a state law that required Kentucky's Berea College to separate black and white students in classes. [31] In November the Court reaffirmed the point it made in Maxwell v. Dow that the Fourteenth Amendment did not automatically extend the guarantees of the Bill of Rights to state defendants, holding in Twining v. New Jersey (1908) that a defendant was not denied his constitutional rights when the judge in his case commented on his failure to testify in his own defense. [32] The Fifth Amendment guarantee against self-incrimination, the Court held, did not apply in state trials. Justice Moody wrote the opinion; Justice Harlan was the lone dissenter.

The Taft Justices

William Howard Taft always wanted to be chief justice of the United States, but on March 4, 1909, he was sworn in as president instead. During his term as president he seated six members of the Court, the largest number appointed by a single president since George Washington. Twelve years later, he became chief justice and remains today the only person to serve as president and as chief justice.

When Justice Peckham died in 1909, Taft chose Horace H. Lurton as his successor. Taft and Lurton had served together on the Sixth Circuit Court of Appeals. In 1910 Taft added three more members to the bench and elevated Justice White to chief justice. Justice Brewer died in March after twenty years of service and was replaced by Charles Evans Hughes, governor of New York. In July 1910 Chief Justice Fuller died, having served twenty-two years in his post, after which Taft broke with precedent by elevating an associate justice, Edward White, to chief justice. White was quickly confirmed.

To fill the vacancy created by White's elevation, Taft chose Joseph R. Lamar, a Georgia attorney whom he had met playing golf in Augusta. In November 1910 Justice Moody resigned, and Taft appointed Willis Van Devanter of Wyoming, a judge on the Court of Appeals for the Eighth Circuit. In October 1911, Justice Harlan died after a long and distinguished, if often lonely, career on the Court. As his successor, Taft chose Mahlon Pitney, a member of the New Jersey Supreme Court. With Harlan's death, only two justices—White and McKenna—remained from the laissez-faire Court of the 1890s.

Trusts and Taxes

For a few years after White replaced Fuller as chief justice, the Court relaxed its conservative stance. In Harlan's last term the Court adopted the “rule of reason”—the rule that Harlan had so vigorously rejected in the Northern Securities case seven years earlier—for applying the Sherman Antitrust Act against restraints of trade. By an 8–1 vote in mid-May 1911, the Court declared that the antitrust act outlawed only unreasonable restraints of trade, not all restraints of trade. The majority thereby ordered the breakup of the Standard Oil trust, which they found to be an unreasonable restraint. Chief Justice White wrote the majority opinion, declaring reasonableness the standard that the courts would apply. Justice Harlan dissented. [33] Two weeks later the Court ordered the dissolution of the tobacco trust. Again Harlan dissented, arguing that the Court was acting as a legislature, rewriting the law by adding the rule of reason. [34] With those antitrust rulings in the oil and tobacco decisions, the Court resuscitated the Sherman Antitrust Act, which its sugar trust ruling of 1895 had seemed to render useless. The rule of reason stood through most of the twentieth century as the standard by which federal antitrust laws were applied against combinations charged with restraint of trade.

Another of the Court's 1895 landmark decisions—its ruling in Pollock v. Farmers' Loan and Trust Co., the income tax case—was overruled in 1913, when Congress and the states added the Sixteenth Amendment to the Constitution, eliminating the constitutional requirement that federal income taxes be apportioned among the states. Congress then enacted a statute taxing incomes of more than $3,000 for single persons and $4,000 for married persons. In Brushaber v. Union Pacific Railroad Co. (1916) the Court upheld the act as constitutional. [35] Chief Justice White wrote the opinion for the Court, acknowledging that the clear intent of the new amendment was to overturn the Court's reasoning in Pollock.

The federal police power continued to win backing at the Court, which upheld the Pure Food and Drug Act in 1911, a revised employers' liability act in 1912, and the White Slave Act in 1913. [36] The White Court broadly construed other aspects of the federal commerce power as well. In the Shreveport Rate Cases (1914) it held that in some situations Congress, through the Interstate Commerce Commission, could set rates for railroads operating entirely within a state. [37]

Rights and Remedies

In 1914 the Court moved haltingly toward embracing the role of protector of civil liberties when it adopted the exclusionary rule to enforce the Fourth Amendment promise of personal security against unreasonable searches and seizures by federal agents. In Weeks v. United States (1914) a unanimous Court held that persons whose rights were violated by such searches could demand that any evidence so obtained against them be excluded from use in federal courts. [38] A half century later the Court issued one of its most controversial rulings when it applied the exclusionary rule against state action. In Guinn v. United States (1915) the Court applied the Fifteenth Amendment to strike down Oklahoma's grandfather clause, which made it difficult for blacks to register to vote in the state. This decision did not, however, settle the matter. Twenty-four years later, in Lane v. Wilson (1939) the Court struck down a similar discriminatory law Oklahoma had adopted to replace the grandfather clause.

President Woodrow Wilson named three men to the Court, one of whom refused to speak to the other two for most of their tenure. In 1914 Justice Lurton died, and Wilson nominated his attorney general, James C. McReynolds, to succeed him. McReynolds, from Tennessee, was one of the most conservative and most difficult men to serve on the Court in the twentieth century. He went out of his way to avoid dealing with Justices Louis Brandeis and Benjamin Cardozo—both of whom were Jewish—and he refused to speak to Justice John H. Clarke, whom he considered unintelligent. [39] Brandeis was Wilson's second nominee to the Court, chosen to fill the seat left vacant by Justice Lamar's death in 1916. Brandeis's nomination was opposed by a number of leaders of the American bar, including former president Taft, who considered him a dangerous radical. After lengthy and contentious hearings, Brandeis was confirmed in June 1916 by a vote of 49–22. As soon as Brandeis was confirmed, Justice Hughes resigned to run unsuccessfully against Wilson for the White House. Federal judge John Clarke of Ohio was Wilson's choice to fill this seat.

The Court in 1914. Seated from left: Justices William R. Day, Joseph McKenna, Chief Justice Edward D. White, Justices Oliver Wendell Holmes Jr., Charles Evans Hughes. Standing from left: Justices Mahlon Pitney, Willis Van Devanter, Joseph R. Lamar, James C. McReynolds. (Source: Collection of the Supreme Court of the United States.)

In 1917 the Court appeared to silently overrule Lochner. In two decisions early in the year, the Court upheld maximum-hour statutes. In Wilson v. New (1917) it approved a federal law establishing an eight-hour workday on interstate railroads, and in Bunting v. Oregon (1917) it sustained a state law setting maximum hours for all industrial workers. [40] The law in Bunting also set minimum wages for women and child workers. By implication the Court sustained those provisions as well. The votes were close. Justices Day, Pitney, McReynolds, and Van Devanter dissented from Wilson. Bunting was decided by eight justices, with Van Devanter, McReynolds, and White dissenting.

Conservatism Confirmed

The years in which the nation fought World War I ended the Court's liberal interlude. The justices abruptly halted the steady expansion of federal police power, striking down, 5–4, a 1916 act of Congress intended to outlaw child labor by barring from interstate commerce goods produced by child workers. Justice Day wrote the Court's opinion in Hammer v. Dagenhart (1918), returning to the distinction between manufacturing and commerce set out in U.S. v. E. C. Knight (1895), the sugar trust case. The child labor law attempted to regulate manufacturing and so overreached the commerce power. Child labor was a subject left to state regulation, Day proclaimed. The Court's most senior members, Justices McKenna and Holmes, and its most junior ones, Justices Brandeis and Clarke, dissented. [41]

World War I also brought the Selective Service Act and the military draft. In June 1917, 9.5 million men were registered for military service. [42] The law was immediately challenged, and it was unanimously upheld by the Court in its decisions in the Selective Service Draft Law Cases (1918). [43] Wartime also brought enactment of an espionage act and a sedition act, the most repressive legislation since the Alien and Sedition Acts of 1798. Unlike the 1798 acts, which were not challenged before the Court, the World War I legislation was contested as violating the freedom of speech protected by the First Amendment. The Court unanimously sustained the espionage act in Schenck v. United States (1919). Justice Holmes wrote the Court's opinion, setting out the famous (if little-used) “clear and present danger” test for determining when government might permissibly curtail an individual's freedom of speech.

The First Amendment, Holmes wrote, would “not protect a man … [who] falsely shout[ed] fire in a theater and caus[ed] a panic.” The question to be asked, he continued, “is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.” [44] Schenck was quickly followed by decisions upholding convictions under these challenged wartime statutes. The Court soon divided over the use of the clear and present danger test, but Schenck remains notable for its declaration that the First Amendment does not provide an absolute protection for free speech and as the first step in the Court's effort to find and define the standards for deciding when government may permissibly curtail free speech.


Document Citation
1 David G. Savage, Business at the Court, 1889–1919, in Guide to the U.S. Supreme Court 36-42 (5th ed., 2011),
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