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White, Edward Douglass

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Birth: November 3, 1845, Lafourche Parish, Louisiana.

Education: Mount St. Mary's College, 1856; Georgetown College (University), 1857–1861; studied law at University of Louisiana (Tulane) and privately; admitted to the bar in 1868.

Official Positions: Louisiana state senator, 1874; associate justice, Louisiana Supreme Court, 1878–1880; U.S. senator, 1891–1894.

Supreme Court Service: Nominated associate justice by President Grover Cleveland, February 19, 1894, to replace Samuel Blatchford, who had died; confirmed by the Senate, February 19, 1894, by a voice vote; took judicial oath March 12, 1894. Nominated chief justice by President William Howard Taft, December 12, 1910, to replace Melville Fuller, who had died; confirmed by the Senate, December 12, 1910, by a voice vote; took judicial oath December 19, 1910; served until May 19, 1921; replaced as chief justice by William Howard Taft, appointed by President Warren G. Harding.

Death: May 19, 1921, Washington, D.C.

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Edward Douglass White
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Edward Douglass White

Edward Douglass White, the ninth chief justice of the United States, was a southern gentleman, a Jesuit-trained Roman Catholic, and a man early acquainted with defeat. The son of a plantation owner, he attended Georgetown College (now University) until the Civil War ended his formal education. He joined the Confederate army, was promptly captured and imprisoned for several months. Far from becoming the stereotypical embittered southerner, with maturity White apparently gained some perspective on the defeat. “Young man,” he once told a law clerk, “you'll be lucky when you're my age if you've only been a damned fool once.”

After the war, White attended the University of Louisiana (Tulane) and read law in the New Orleans office of Edward Bermudez. White opened his own practice there and became active in Louisiana's Democratic Party. By 1874, when he was elected to the state senate, he had established one of the city's largest law practices. White's support of the successful candidate for governor two years later won him an appointment to the state supreme court, but he served for only a year because the Louisiana Constitution of 1879 established a minimum age of thirty-five for supreme court justices. White, then thirty-four, had to resign, start another law practice, and resume his political activity. He was elected to the U.S. Senate in 1888, but a partisan dispute over the state lottery kept him in Louisiana until 1891.

The tensions of White's early career may have contributed to the development of a nervous habit that made writing arduous in an era when nearly all professional work was done in longhand. For the rest of his life, White could not write unless he pressed the first finger of his right hand against his nose and held the pen between his thumb and second finger. There is no evidence, however, that this difficulty affected either the quantity or quality of his work.

When Justice Samuel Blatchford died in July 1893, President Grover Cleveland tried twice to name his replacement, but the Senate rejected both William Hornblower and Wheeler Peckham. Cleveland then tried the familiar ploy of nominating one of the Senate's own. In addition to being a senator, Edward White had other characteristics that made him eligible in Cleveland's eyes: he was a Democrat, and his opposition to a tariff bill gave Cleveland reason to want him out of the Senate. White took his seat in March 1894. A few months later, the forty-eight-year-old bachelor married Leita Montgomery Kent, the widow of a Washington lawyer. The marriage, like White's service on the Court, was by all accounts a happy association and lasted until his death.

White's appointment as chief justice in 1910 was a departure from custom in two ways. Except for John Rutledge, who served briefly as chief justice in 1795 until the Senate rejected him, White was the first associate justice to be promoted. White was also a Democrat appointed by a Republican president, William Howard Taft. But Chief Justice Melville Fuller's death coincided with so many Court vacancies that Taft may have felt it necessary to elevate a sitting justice to ensure continuity, and White's fellow justices thought highly enough of him to petition Taft to promote him. Moreover, the fact that three of Taft's six appointees to the Court were Democrats suggests that partisan loyalty mattered little to him. White's biographer, Robert Highsaw, suggests that the justice's high productivity may have impressed Taft, and that their views on most issues were compatible. A Taft biographer has suggested that White's age (sixty-five) also made him an attractive choice because Taft's greatest ambition was to be chief justice, not president. He was twelve years younger than White, and he may have acted in the hope that the position would be vacant after he left the White House and was still young enough to fill it. The fact that any such strategy on Taft's part was successful—President Warren Harding appointed him to succeed White—makes this conclusion tempting without much evidence to support it.

Two chief justices later, Robert H. Jackson wrote: “Never in its entire history can the Supreme Court be said to have for a single hour been representative of anything except the relatively conservative forces of the day.” The Court on which Edward White served from 1894 to 1921 provides ample support for this generalization, whether we take “conservative” in its literal meaning or in its informal association with wealth, advantage, and privilege. White was at home in this intellectual environment, and attuned to the prevailing ideology of the day. Some cases from this period that strike us as infamous examples of this conservatism, like the endorsement of racial segregation in Plessy v. Ferguson (1896), may seem more important in retrospect than they did at the time. White concurred without opinion in Plessy. Although a single, unverifiable report states that he had been a member of the Ku Klux Klan, little information survives about his racial views.

The primary challenge that faced White and his colleagues was fashioning a judicial response to legislation aimed at controlling the effects of the concentration of wealth and the subsequent, if not consequent, abuse of power the industrial revolution had created. These laws fell into two general categories: efforts to retard the concentration of wealth and efforts to benefit workers facing employers far more powerful than they. Year after year, the Court confronted both kinds of laws.

The prevailing sentiment in the legal profession in the 1890s was adverse to this kind of legislation. At colleges and law schools, which were replacing the kind of apprenticeship White had served as the source of legal training, lawyers were exposed to the social Darwinism of professors such as Christopher Tiedemann, who urged generations of students to resist “the impulse of a generous nature …. to call loudly for the intervention of the law to protect the poor wage-earner from the grasping cupidity of the employer [who] has acquired this superior position …. through the exertion of his powers; he is above, and can to some extent dictate terms to, his employees, because his natural powers are greater.” The justices were not immune from the socialization going on within their profession.

By the time White took his seat, the Court had developed an approach to these laws that was hostile without being suicidal. This hostility persisted, with some ups and downs, until 1937, when Franklin Roosevelt's threat to enlarge the Court brought about a judicial retreat from activism in economics that may or may not have been permanent.

However conservative White's general ideology was, it is not clear how fully he shared the social Darwinist ideology of his profession. His papers were destroyed after his death, and he was silent in many landmark cases. For example, he dissented without opinion in both Lochner v. New York (1905), which struck down a maximum working hours law, and Bunting v. Oregon (1917), which appeared to overrule Lochner; he concurred without opinion in both Muller v. Oregon (1908), which upheld a maximum hours law for women, and in Hammer v. Dagenhart (1918), which invalidated Congress's attempt to discourage child labor. The opinions White did write—and his productivity was high—show that he took an active part in erecting and maintaining judicial barriers to progressive legislation. As chief justice, he took an equally active part in preventing judicial activism from becoming suicidal.

The “rule of reason,” which severely limited the government's power to control monopolies, was White's primary contribution to constitutional law. The Sherman Antitrust Act of 1890 forbade all combinations “in restraint of trade or commerce among the several States, or with foreign nations.” White concurred without opinion in United States v. E.C. Knight Co. (1895), which effectively derailed antitrust prosecutions for the rest of the nineteenth century by declaring that commerce did not include manufacture. Two years later, White was willing to go even further than the Court majority in weakening the Sherman Act. His dissent in United States v. Trans-Missouri Freight Assn. (1897) won three other votes, thus coming a single justice short of a majority.

White insisted that the Sherman Act could not be read literally because any contract restrained trade. “To define, then, the words ‘in restraint of trade’ as embracing every contract which to some degree produced that effect would be violative of reason, because it would include all those contracts which are of the very essence of trade.” The common law, therefore, had evolved the “rule of reason,” which ordained that “reasonable contracts cannot be embraced within the provisions of the statute.” The Court's ruling, therefore, meant that “a law in favor of freedom of contract …. is so interpreted as to gravely impair that freedom.” White's doctrine still remained one vote short in 1904 in the famous Northern Securities Co. v. United States.

White's opportunity to write his doctrine into dogma—without precipitating a showdown with a trust-busting administration—came during his first term as chief justice. In Standard Oil Co. v. United States (1911), the Court, by an 8–1 vote, ordered the dissolution of the Standard Oil trust. White again endorsed “the standard of reason which had been applied at the common law and in this country.” He declared, “The criterion to be resorted to in any given case …. is the rule of reason guided by the established law.” Justice Oliver Wendell Holmes later remarked, “The moment I saw that in the circulated draft, I knew he had us. How could you be against that without being for a rule of unreason?”

As an exercise in judicial power, Standard Oil was an accomplishment worthy of John Marshall. By conceding a battle to the legislative and executive branches, White won both a campaign and a war. The impact of E.C. Knight and Standard Oil after 1911 defeated virtually all trust prosecutions. But “reasonableness” is in the eye of the adjudicator, and the rule of reason greatly expanded the Court's power, making it the arbiter of reasonableness.

As an exercise in constitutional interpretation, however, the rule of reason suffers from the defects of Lochner and its line of substantive due process cases. The Standard Oil doctrine edits both the statute and the Constitution by adding words not included in either, almost as blatantly as the opinion White joined in Hammer v. Dagenhart, which edited the Tenth Amendment by adding the word “expressly.” Such free translation of text is neither unknown nor uniformly unwelcome today, but the typical defense of it, familiar after the famous footnote in United States v. Carolene Products Co. (1938), is not applicable in antitrust cases: the interest being protected is neither a specified constitutional right nor an excluded minority group. Instead, the White Court expanded judicial power to serve the interest of the privileged few, a group that, moreover, had lost a fair fight in the political arena.

Another judicial barrier to progressive legislation that White helped to fashion came from the Court's reading of the federal commerce power. In Northern Securities, Holmes's dissent promulgated the rule of reason, but White based his dissent on the doctrine of dual federalism: the proposition that national and state governments are each sovereign within their own spheres; the nonexercise by one government of its own power does not permit the other government to exercise the power, however innocuously; and the states retain all power not delegated to the national government. The power to regulate combinations such as the Northern Securities Company, White insisted, was “entirely distinct from the power to regulate the acquisition and control of such instrumentalities.” Congress could do the latter, but the former power belonged to the states. Although White's dual federalism never commanded a Court majority, as his rule of reason did, he had some successes using it. He wrote for the Court in the 1908 Employers' Liability Cases, for example, holding that the commerce clause does not include the power to regulate employer-employee relations. Hammer v. Dagenhart, without an opinion from White, was perhaps the greatest victory for his dual federalism.

Constitutional scholar Edward S. Corwin credited White with resurrecting dual federalism, which had prevailed since the Taney Court but by 1904 seemed “about to pass into eclipse beneath the waxing orb of the commerce power.” Perhaps, Corwin suggested, White's Jesuit education made him sympathetic to the doctrine by teaching him “its medieval counterpart, the dual jurisdiction over common territory of Church and State.” It is also possible that the time and place of White's young manhood favorably disposed him toward state sovereignty. But the difficulty with these explanations is that White was not uniformly hostile to national usurpations of state power; he voted to limit national power when Congress attempted to bar articles from interstate commerce that were not inherently dangerous, but because they were associated with some practice Congress wanted to control.

If the possibility occurred to White that the corporations Congress tried to restrict might have been considerably more powerful than the states in which he situated the power to restrict them, he never indicated such awareness. At any rate, White was fighting a rearguard action. Dual federalism did not survive the New Deal; United States v. Darby Lumber Co. (1941) repudiated Hammer v. Dagenhart.

White's contributions to doctrine outside the area of economic regulation show that his jurisprudence was motivated no more by distrust of the national government than by deference to the states. The first, chronologically, of the two instances in which White succeeded in writing erstwhile minority opinions into law broadly interpreted Congress's power over acquired territories, and the resulting rule has proved more nearly permanent than either the rule of reason or dual federalism. The events of 1898, the year in which the Hawaiian Islands were annexed, the Spanish-American War ended, and the resulting Treaty of Paris ceded Puerto Rico, Guam, and the Philippine Islands to the United States, made future judicial involvement with questions concerning these territories a virtual certainty, and the Court's docket between 1901 and 1905 was thick with them.

Article IV of the Constitution left no doubt that Congress had the power to govern territories and to make states out of them, and the Louisiana Purchase of 1803 had effectively settled any doubts about Congress's power to acquire territory. The questions presented to the Fuller Court concerned an issue that had not yet been decided: the applicability of constitutional guarantees to territories. Downes v. Bidwell (1901) involved a statute that established a civil government for Puerto Rico and levied a tax on its exports to the United States. An importer insisted that the territory was a part of the United States and that the tax, therefore, violated the provision in Article I, Section 8, that all duties be uniform throughout the country. The Court upheld the law, but without a majority opinion. White was part of the 5–4 majority, but he refused to join Justice Henry Brown's opinion, which hinted that some constitutional guarantees might apply to territories without restriction. White's concurring opinion propounded the “Insular Doctrine,” the theory that constitutional limitations on congressional powers applied to territories only after they were incorporated into and became an integral part of the United States. Four years later, White's doctrine claimed a majority in Rasmussen v. United States (1905), and in 1914 a unanimous Court accepted it in Ocampo v. United States.

White's Insular Doctrine has been called a new jus gentium (international law). It is similar to the Roman doctrine whereby usages common to different peoples were incorporated into the “law of nations” and applied to conquered territories, while the jus civile (civil law) applied only to Roman citizens. White invoked “the general rule of the law of nations” by which “the acquiring government fixes the status of the acquired territory.” The majority decision in Downes, he wrote, therefore “rests on the erroneous assumption that the United States under the Constitution is stripped of those powers which are absolutely inherent and essential to the national existence.” Puerto Rico “was not a foreign country since it was subject to the sovereignty of and was owned by the United States”; however, it “was foreign …. in a domestic sense, because the island had not been incorporated into the United States, but was merely appurtenant thereto as a possession.” Until Puerto Rico was incorporated—that is, when Congress said it had been—the uniform duty provision of Article I “was not applicable to Congress in legislating for Porto Rico.”

Unincorporated territories were therefore in a kind of limbo: Congress's Article IV power to govern applied, but the limitations on Congress's power, including the Bill of Rights, did not. White's customary solicitude for business may have influenced his opinions in the Puerto Rico tax cases; he recognized that the imperialists wanted to retain their gains, and yet, at the same time, domestic interests wanted protection against an influx of duty-free sugar and tobacco from the islands. Here, as with the rule of reason, judgments of the quality of White's intellectual contribution to constitutional law and of the effectiveness of his leadership on the Court should be separated from any judgments about the wisdom or justice of his doctrines.

The protracted political controversy that culminated in Virginia v. West Virginia (1907) showed White as the arbiter of divisions of power among states and between the states and the national government. When Virginia seceded in 1861, the western part of the state refused to leave the Union. West Virginia became a separate state two years later; it agreed to assume a fair share of Virginia's prewar debt, and Congress ratified the compact. West Virginia did not make good on its promise, however, and in 1907 Virginia brought suit. The Supreme Court ordered West Virginia to pay in 1915, but no money was forthcoming, and Virginia reinstated the suit. The Court faced the possibility that West Virginia might continue to defy direct orders. A state's obligation to obey the Court was already beyond dispute, but it was not clear how the Court could enforce its order. What was clear is that the state's defiance of an order would embarrass the Court.

White's opinion carefully avoided the dangers the case presented. He reaffirmed the principle “that judicial power essentially involves the right to enforce the results of its exertion” and went on to suggest that the remedies for defiance included not only judicial enforcement but congressional legislation. Neither Congress nor the Court had to act further: West Virginia paid its share of the debt.

A general evaluation of White's jurisprudence can easily describe what it is not. White was no Felix Frankfurter, with his concern for judicial self-restraint, nor a Hugo Black, with his literal reading of the constitutional text, nor an Antonin Scalia, with his jurisprudence of original intent. Although White may have practiced judicial restraint in the pragmatic sense of keeping the Court out of confrontations, he had no hesitation about holding the other branches of government to notions of fundamental principles of justice or “inherent” rights, concepts that come close to a “natural law” doctrine. This attitude was not unusual in the nineteenth century, when few were embarrassed to suggest that positive law incorporated higher law principles; the abolitionists, for example, had made similar arguments in opposing slavery. One difficulty with natural law arguments was that a consensus that fundamental principles existed was not accompanied by consensus on what constituted those principles, and these arguments, therefore, can be and have been advanced to defend contradictory positions.

As both justice and chief justice, White was an unambiguous success in his own time. His major opinions show impressive knowledge of law and a facility for creative reasoning, and the Court's votes show his skill at promoting consensus and keeping the Court out of trouble. But the fact that two of his doctrines, the rule of reason and dual federalism, did not survive his tenure even by a generation indicates that his ability to persuade his colleagues may have been greater than his ability to adapt doctrine to changing conditions. (The dual federalism concept did, however, reappear in the late twentieth century.) And assessment of the rightness or wrongness of his opinions, and of the directions in which he influenced the Court, will probably depend on the views of the observer.

Some commentators found evidence of White's Jesuit education in these decisions. The rule of reason and the Insular Doctrine reveal that far from limiting himself to any minimalist doctrine of constitutional interpretation, White freely drew on common law and Roman law to graft concepts onto the Constitution. White may well have been one of the last American judges to merit the description “natural law” jurist; he might even have welcomed the label and perhaps cheered Justice Clarence Thomas's advocacy of this doctrine.

Because White's success with the Insular Doctrine antedated his promotion, these cases show that his leadership on the Court did not depend solely on his position as chief justice, and neither did the intellectual manipulation in Standard Oil on which Holmes remarked. Any justice can do that sort of thing, and many have. But the chief justiceship enhanced White's opportunities to lead, as the formal powers of the position gave him ample occasion to exert informal influence. The presiding role allows the chief to set both agenda and tone; the chief's skill in performing these tasks influences the collegiality and productivity of the Court, for good or for ill. As Prof. David Danelski has written: “In terms of influence, then, the ideal chief justice is a persuasive, esteemed, able, and well-liked judge who perceives, fulfills, and even expands his role on the Court.” Until White's last few years, when he stayed too long on the Court, his performance came close to this ideal.

Danelski borrows from small group studies to posit two types of leadership within the Court. The task leader “makes more suggestions, gives more opinions, and successfully defends his ideas more often than the others.” The social leader “attends to the emotional needs of his associates” and typically “is the best-liked member of the conference.” One individual can fulfill both these roles—Danelski argues that Charles Evans Hughes did—but the positions are to some extent contradictory; people who win arguments are not always liked.

There is no doubt that White acted as social leader. Even those who do not describe his abilities in superlatives attest to his personal charm. This consensus and the fact that the White Court included such luminaries as Holmes, Hughes, and Louis Brandeis might lead to the expectation that White would not have been task leader as well. But all the evidence suggests that he was. The high productivity, low dissension, and warm col-legiality revealed in volumes of United States Reports and in individual memoirs attest to White's ability both to set tasks and stroke the egos of his colleagues.

Dissent was less common in the late nineteenth and early twentieth centuries than it is now, and unanimity remained the norm until Hughes's tenure as chief justice. Even the relatively contentious Fuller Court reached unanimous decisions in 70 percent to 75 percent of its cases in most terms. White had greater success than Fuller in achieving unanimity; his figures compare favorably with Taft's. In 1912, for instance, only 9 percent of the cases had dissents. Productivity also rose under White by roughly 40 percent. This pattern began to change in 1916; productivity decreased slightly from then on, and the dissent rate climbed as high as 25 percent. The presence on the Court of notorious combatants such as Brandeis, James McReynolds, and John Clarke probably combined with White's failing health to weaken his leadership. Soon after Taft took over, Brandeis remarked that “the judges go home [from conference] less tired emotionally and less weary physically than in White's day.”

No one disputes that White was always well-liked, on and off the Court, but opinion about his performance is divided. Several years after his death, Justice Holmes wrote, “If Hughes had been appointed then,… I think the history of the Court would have been better than it is.” In 1970 a poll of legal scholars rated White among the “near great” Supreme Court justices but ranked Hughes among the “great” judges. Highsaw rates him lower than the panel did, attributing his subject's success to “the fact that, though he was far from a mediocrity, he was not such an outstanding man that he aroused any considerable opposition.”

In one sense, White accomplished in Standard Oil, Rasmussen, and to a lesser degree in Virginia v. West Virginia, exactly what Hughes did in the “switch in time which saved nine” of 1937. Less dramatically—and perhaps, therefore, more successfully—than Hughes, White withdrew from disputes that the Court, lacking both the purse and the sword, was doomed to lose. Yet the observation White's biographer makes of his dual federalism, that it constituted a brilliant rearguard action, seems true in general of White's contribution to public law. The values he defended most, corporate power and imperialism, while far from obsolescent, seem not to have needed much judicial help. Brandeis—or even Holmes, who, we now know, had little more sympathy than White had for progressive legislation—might have acted on the need to interpret constitutional principles in the light of the immense socioeconomic changes occurring in his time and rendered obsolete verities such as the harmony of worker-employer relations assumed in Hamilton's Federalist 35 and uncritically endorsed in several White Court rulings. But White used his talents, jurisprudential and political, in the defense of values that seem less admirable now than they did in his time.


The only biography of White is Robert B. Highsaw, Edward Douglass White: Defender of the Conservative Faith (1981), which, although biased toward its subject, is valuable for its clear presentation of constitutional doctrine. David J. Danelski, “The Influence of the Chief Justice in the Decisional Process,” in Sheldon Goldman and Austin Sarat, eds., American Court Systems: Readings in Judicial Process and Behavior (2d ed., 1989), 486–499, is the definitive study of the distinguishing features of White's position. Other works that are useful for understanding White and his Court include Dean Acheson, Morning and Noon (1965), Chapters 4 and 5, in which the former secretary of state, who clerked for Louis Brandeis from 1919 to 1921, presents a revealing picture of “our Court” under White; Edward S. Corwin, The Twilight of the Supreme Court (1934), a valuable analysis of the important constitutional issues of White's day; Mark DeWolfe Howe, ed., The Holmes-Laski Letters (2 vols., 1953), a valuable source of Holmes's trenchant opinions about his colleagues; and Stephen B. Wood, Constitutional Politics in the Progressive Era (1968), an explanation of the events, judicial and political, culminating in Hammer v. Dagenhart.

Two valuable studies of the White Court are William F. Pratt, The Supreme Court Under Edward Douglass White, 1910–1921 (1999); and Alexander M. Bickel and Benno C. Schmidt Jr., The Judiciary and Responsible Government, 1910–1921 (1984), a volume in the Holmes Devise History.

Noteworthy Opinions

United States v. Trans-Missouri Freight Assn., 166 U.S. 290 (1897) (Dissent)

Northern Securities Co. v. United States, 193 U.S.197 (1904) (Dissent)

Virginia v. West Virginia, 206 U.S. 290 (1907)

Employers' Liability Cases, 207 U.S. 463 (1908)

Standard Oil Co. v. United States, 221 U.S. 1 (1911)

Ocampo v. United States, 234 U.S. 91 (1914)


Document Citation
White, Edward Douglass, in Biographical Encyclopedia of the Supreme Court 601 (Melvin I. Urofsky ed., 2006),
Document ID: bioenc-427-18170-979652
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