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Mckenna, Joseph

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Birth: August 10, 1843, Philadelphia, Pennsylvania.

Education: Benicia Collegiate Institute, graduated in 1864; admitted to the bar in 1865.

Official Positions: District attorney, Solano County, California, 1866–1870; member, California Assembly, 1875–1876; U.S. representative, 1885–1892; judge, U.S. Court of Appeals for the Ninth Circuit, 1892–1897; U.S. attorney general, 1897.

Supreme Court Service: Nominated associate justice by President William McKinley, December 16, 1897, to replace Stephen J. Field, who had retired; confirmed by the Senate, January 21, 1898, by a voice vote; took judicial oath January 26, 1898; retired January 5, 1925; replaced by Harlan F. Stone, nominated by President Calvin Coolidge.

Death: November 21, 1926, Washington, D.C.

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Joseph Mckenna
Noteworthy Opinions

Joseph Mckenna

Joseph McKenna's Irish-Catholic immigrant parents moved their family from Philadelphia to Benicia, California, when he was twelve. Just three years later, his father died, and Joseph became the head of the family. While helping to support his family, McKenna attended parochial schools and, later, Benicia Collegiate Institute where he studied law. He passed the bar in 1865. But law held less of an allure for McKenna than politics, and, except for a brief period, he never practiced as a private lawyer. Instead, he became a staunch Republican politician.

From 1865 on, McKenna was either a candidate or an elected officeholder until he was appointed to the bench. He served in the House of Representatives from 1885 to 1892, where he displayed the knack of gaining the support of powerful figures; Leland Stanford and William McKinley both found him to be a useful ally and played a part in his political rise. Stanford suggested his name to President Benjamin Harrison for a vacancy on the Ninth Circuit Court of Appeals in 1892. After McKinley became president, he named McKenna his attorney general and then, within the year, nominated him to the Supreme Court to fill the seat of Justice Stephen Field, who had finally been persuaded to retire after thirty-four years on the Court.

McKenna also would serve a long time, and his twenty-six-year tenure broke into three periods: an early period of learning his new role; a middle period when he was an important (although somewhat erratic) member of the Court; and a late period of failing abilities limiting his effectiveness. His career, especially his middle period, essentially showed him as a politician dressed in judicial robes.

At the time of McKenna's appointment, some observers complained that he was unsuited for the Court. The grumbling was politically motivated but contained a germ of truth. Nothing in his background, including his legal positions, prepared him for the Court. He was a poor lawyer and knew it, so he spent some time in the Columbia University law library to ready himself. But the cramming did little good, and a Court librarian later commented that as a new justice, McKenna was overwhelmed by the duties. McKenna's tentativeness as a justice was reflected in his writing: his early opinions—for example, Magoun v. Illinois Trust and Savings Bank (1898)—were weighed down with loads of precedent and irrelevant case law. Nor did he have a clear philosophy to guide him, and despite his long tenure, he never developed one.

Throughout his ca-reer and across many different issues, McKenna proved inconsistent in his decisions and reasoning. Typical of his lack of consistency were his votes and opinions in cases concerning state and federal regulation of working conditions. He was with the majority in Lochner v. New York (1905) when the Court struck down a New York health regulation that limited the working hours of bakers. But in the 1908 case Muller v. Oregon, he joined the unanimous majority in upholding the state's hours regulation for women industrial workers. In Wilson v. New (1917), McKenna was in the majority upholding the federal Adamson Act, which set an eight-hour day for railroad workers. A belief in dual federalism cannot explain this shift, because in Bunting v. Oregon (1917), McKenna's majority opinion sustained a state law mandating a ten-hour day that was in effect a minimum wage law. Then, in Adkins v. Children's Hospital (1923), he joined the majority in striking down federal minimum wage legislation for women in the District of Columbia, which brought him back to where he had started in Lochner.

Although McKenna never developed a consistent judicial stand, he did adapt his politician's skills to his new role. In the middle of his career, especially in the second decade of the twentieth century, his writing style returned to a more natural form, and he expressed his opinions in strong, clear phrases. His opinion in United States v. United States Steel Corporation (1920) is a brief and direct statement of the application of the rule of reason—that not all restraints of trade were unreasonable and therefore illegal—to the Sherman Antitrust Act. Moreover, his sensitive political antenna had earlier picked up the strong support for federal action under the commerce power. His opinions for the Court in Hipolite Egg Company v. United States (1911), upholding the constitutionality of the Pure Food and Drug Act, and Hoke v. United States (1913), upholding the Mann Act, reflected both his political awareness and maturing judicial powers. These two opinions are lucid and forceful statements of the federal government's power to use the commerce power to promote the general welfare. Moreover, they upheld popular laws passed in the face of supposed national emergencies.

The same pattern emerged in McKenna's votes and opinions in the free speech cases that grew out of the federal and state legislative attempts to limit expression during World War I. In a number of cases, beginning with Schenck v. United States (1919) and ending with Gilbert v. Minnesota (1920), McKenna joined with the majority in upholding these popular laws. In Gilbert, McKenna asserted that although the freedom of speech was inherent, it was not absolute. In a time of emergency, like a war, broad restrictions and limitations could be placed on speech despite the First Amendment.

The wartime speech cases were his swan song. In the 1920s he stayed on the Court even though he no longer had the ability to understand the issues. Chief Justice William Howard Taft, after McKenna's mental decline, dismissed him as a “Cubist” on the bench and several times had to ask McKenna to rework his opinions so they would reflect the accordance of the majority. His colleagues suggested he retire, but he refused. In 1924, as an expedient, the brethren—under the chief justice's direction—agreed not to make any decisions in cases in which his vote would be the deciding one. Whether it was due to the pressure of colleagues, his realization of his decline, or his wife's death, McKenna retired in 1925.


The standard biography is Matthew Mc-evitt, Joseph McKenna: Associate Justice of the United States (1946), which is sympathetic but honest in its treatment. For McKenna's decline, see Alpheus T. Mason, William Howard Taft: Chief Justice (1964).

Noteworthy Opinions

Hipolite Egg Company v. United States, 220 U.S. 45 (1911)

Hoke v. United States, 227 U.S. 308 (1913)

Bunting v. Oregon, 243 U.S. 426 (1917)

United States v. United States Steel Corporation, 251 U.S. 417 (1920)

Gilbert v. Minnesota, 254 U.S. 325 (1920)


Document Citation
Mckenna, Joseph, in Biographical Encyclopedia of the Supreme Court 343 (Melvin I. Urofsky ed., 2006),
Document ID: bioenc-427-18168-979380
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