The Chief Justiceship of William Howard Taft, 1921–1930

By Jonathan Lurie

A study of the Supreme Court tenure of the only US president to serve as chief justice provides a unique perspective on 1920s America.

In this book, Jonathan Lurie offers a comprehensive examination of the Supreme Court tenure of the only person to have held the offices of president of the United States and chief justice of the United States Supreme Court. William Howard Taft joined the Court during the Jazz Age and the era of prohibition, a period of disillusion and retreat from the idealism reflected during Woodrow Wilson’s presidency. Lurie considers how conservative trends at this time were reflected in key decisions of Taft’s court.

Although Taft was considered an undistinguished chief executive, such a characterization cannot be applied to his tenure as chief justice. Lurie demonstrates that Taft’s leadership on this tribunal, matched by his productive relations with Congress, in effect created the modern Supreme Court. Furthermore he draws on the unpublished letters Taft wrote to his three children, Robert, Helen, and Charles, generally once a week. His missives contain an intriguing mixture of family news, insights concerning contemporaneous political issues, and occasional commentary on his fellow justices and cases under consideration.

Lurie structures his study in parallel with the eight full terms in which Taft occupied the center seat, examining key decisions while avoiding legal jargon wherever possible. The high point of Taft’s chief justiceship was the period from 1921 to 1925. The second part of his tenure was marked by slow decline as his health worsened with each passing year. By 1930 he was forced to resign, and his death soon followed. In an epilogue Lurie explains why Taft is still regarded as an outstanding chief justice—if not a great jurist—and why this distinction is important.

“Conflicts from the early twentieth century endure, and Lurie gives us old and new perspectives from which to understand a living Constitution.” —Journal of American History

• Language: English
• Publisher: Open Road Integrated Media
• Release date: May 31, 2019
• ISBN: 9781611179880

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Series Editor’s Preface

This is a unique and long-awaited addition to our knowledge of U.S. Supreme Court history. The subject matter is distinguished by the fact that this volume covers a singular situation: Chief Justice Taft was, and continues to be, the only individual privileged to serve as president of the United States before he was appointed to become the presiding officer of the Court during what proved to be one of the most formative decades of its existence. Indeed, institutionally the Taft chief justiceship is at least as remarkable for its administrative innovations as it is for its contributions to constitutional jurisprudence and political thought. Arguably it represents the first step toward the emergence of the Supreme Court as we know it today.

Readers will enjoy the benefit of an exhaustively researched monograph that is artfully written and perceptively presented. Drawing on his skills as a biographer, Professor Lurie provides a blow-by-blow description of how Chief Justice Taft was either responsible as president for appointing some of his future colleagues on the Court or, in the alternative, was influential in recommending the appointment of newer justices by Presidents Harding or Coolidge. Equally fascinating is the description of Taft’s political acumen as he deftly guided the Judges Bill" through Congress primarily through the testimony of his associate justices. By so identifying this procedural reform as a matter desired by the entire Court, he adroitly avoided the appearance of being either personally overbearing or improper in his lobbying approaches to Congress. To that major achievement we may add his successful efforts to gain congressional approvals for annual administrative meetings of senor circuit-court justices, to secure legislative authority enabling a chief justice to temporarily reassign federal judges to meet emergency judicial demands, and to secure appropriations to fund planning for the current free-standing Supreme Court building, as well as financing for its construction.

We are also given a unique insight into the psychological cost of serving as a chief justice of the U.S. Supreme Court. Along with his judicial predecessors and successors, Taft was burdened with the task of gaining the approval of a majority of his colleagues before an opinion of the Court might be written and announced. As Professor Lurie amply demonstrates, the Supreme Court under Taft’s leadership was dominated by a dedicated group of conservative justices devoted to the classical legal tradition. They clashed with a dynamic and vocal trio of progressives who were sensitive to modern social and economic conditions. Included within the frequently dissenting progressive minority were the formidable Louis Brandeis and the legendary Oliver Wendell Holmes. In his attempts to secure majority opinions, the chief justice found himself continually challenged and frequently frustrated, and he poured out his troubles in revealing private letters to his family. Regardless of political or jurisprudential preferences, the reader will be moved to sympathy for this troubled Prometheus tied to the hard rock of judicial duty and leadership.

In his epilogue Professor Lurie admits that his studies of the Taft Court have left him with a lingering sense of admiration, although tempered by ambivalence, in regard to its constitutional contributions. Clearly the conservative inclinations of the Court majority resulted in a limited capacity to deal with some serious economic and social problems. But simultaneously the Court launched the initial efforts to use the Fourteenth Amendment as the vehicle by which certain personal liberty provisions of the federal Bill of Rights might be applied to the states through what subsequently has been termed incorporation. Notably many of those efforts were by Justice James McReynolds, one of the Court’s most determined conservative members.

The Taft Court was also careful to respect the dynamics of federal-level checks and balances in its jurisprudence. Reviewing factual holdings made by the Interstate Commerce Court, the Taft Court deferred to the rate-fixing expertise of that tribunal, established by Congress to perform a quasi-legislative duty. On the other hand, in declaring legislation unconstitutional, the Taft Court was far more active in nullifying state statutes rather than those enacted by Congress, tacitly endorsing federal preeminence and the need for nationwide uniformity. As I read Lurie’s conclusions, he finds that while the Court under Taft was dominated by classical legal concepts, at the same time it was sensitive to, and at times was responsive to, the demands of modernization in economic life and society.

In light of this perspective, this monograph urges us to take a new look not only at the legacy of the Taft Court, but also to reconsider the multifarious forms of continuity that characterize early twentieth-century constitutional history. In following Lurie’s narrative, I found striking parallels between the intellectual struggles of the Taft Court factions and the 1935–37 tensions between the Supreme Court majority and the political branches of the state and federal governments. And Lurie is careful to point out that classical legal thought remains with us in the vestiges of legal formalism and originalism in contemporary constitutional theory, even though it seems to have been eclipsed as a dominating force in Supreme Court decision-making.

One powerful basis for a classical legal tradition is the legal profession’s preference for a predictable system of precedent, which provides certainty to the law, particularly in the area of constitutional decisions. Yet such certainty can carry with it the danger of legal obsolescence. It also can hinder the necessary adjustments that a democratic government must make to protect the interests of a sovereign people. In essence these are the ambiguities that Professor Lurie invites us to contemplate.

Preface

The following chapters describe the United States Supreme Court and some of the cases it considered between 1921 and 1930. This was the era of the Taft court, named for the former president who served as chief justice from June 1921 through February 1930. William Howard Taft presided over his court for eight full terms. He brought several specific conceptions to his role, all of which are reflected in these chapters.

A lifelong Republican, Taft subscribed to a judicial philosophy that may be labeled as classical legal thought. It is fully described herein, but some specific characteristics may be cited here, though they are detailed in the following chapters. They included a strong emphasis on the rights of property, a deep attachment to liberty of contract, a distrust of regulatory legislation, and repeated emphasis on the limited power of the judiciary even as the decisions of his court augmented it. Moreover, as chief justice, Taft deprecated dissent among his brethren. With few exceptions he believed them to be simply ego tripping on the part of dissenting jurists. He rarely dissented in his eight full terms and on numerous occasions withheld his proposed disagreements in the interests of producing judicial unanimity among his colleagues.

In his early years in the center seat, Taft repeatedly demonstrated his success in shaping such consensus. But it did not last. Long dominant in conservative legal circles, by the 1920s classical legal thought was in decline. Buffeted by lingering currents of progressivism, it was repeatedly attacked by legal scholars and by two of the most distinguished justices on Taft’s court, Oliver Wendell Holmes and Louis Brandeis. Especially in the last three years of Taft’s tenure, these two dissenters were often joined by a third justice, Harlan Stone. As his health worsened and his negotiating and compromising abilities declined Taft found himself denouncing the Bolsheviki among his brethren. When he resigned from his court in February 1930 with barely a month to live, he feared that constitutional jurisprudence as he had known it would become a thing of the past. As these chapters attempt to illustrate, Taft’s fears were justified in large measure. Yet classical legal thought has demonstrated an intriguing resilience in the decades after his death. Finally it should be acknowledged that for better or worse, my chapters may well reflect a hostility toward this philosophy. This is not accidental.

I was invited by Herbert Johnson to write this book on the Taft court more than a decade ago. During the intervening years he has demonstrated remarkable patience and forbearance, even as he encouraged me to persevere. Further Herb arranged to have all the volumes of the Taft court’s decisions delivered to me, thus greatly facilitating my research and writing. In a similar vein my old friend Melvin Urofsky has read and critiqued every chapter in my manuscript, and it is a better book for his efforts. My debt to both these friends and scholars is profound. A good portion of the research reflected here was conducted at the Library of Congress Manuscript Division for my earlier biography of William Howard Taft, and again my grateful thanks are extended to Jeff Flannery and his staff. Linda Haines Fogel of the University of South Carolina Press has been waiting for this manuscript much longer than she should have. I hope that it was worth the wait. Although I do not know who the reviewer was, the insightful comments from the anonymous reviewer for the press in recommending publication of my book were of inestimable value in making my final revisions, and I am grateful for them. Special thanks are extended to Fred Schilling of the Supreme Court Historical Society and to Rob Delap of the New York Historical Society for their kind assistance in gathering the illustrations for this book. Finally I owe more to Mac than can be said here. Whenever I got distracted from this book by some other project, she firmly redirected my focus back to it. For fifty years she has been my colleague and partner, and truly this book belongs to her.

1

TAFT AND HIS COURT IN 1921

The Cast of Players

1

IN ITS ENTIRE HISTORY no member of the United States Supreme Court has brought to the bench the unique perspective and experience of William Howard Taft. To be sure, before and since his appointment, no man has ever served as both president and Supreme Court justice—let alone chief justice. Indeed only two former presidents have ever returned to federal office: John Quincy Adams to the House of Representatives, and Andrew Johnson to the U.S. Senate. When compared with Chief Justices John Marshall and Roger Taney, who between them served for about sixty years, William Howard Taft’s tenure as chief justice was relatively brief—barely eight years.¹ But for that period of time, Taft brought an incredible resume to this office.²

His life (1857 to 1930) began on the eve of the Civil War. He matured at the height of the Gilded Age, and he was one of the youngest solicitor generals in the history of the Justice Department. He witnessed the transformation and travails of urban America, the violence between labor and capital, the triumph of American industrialism, the new concepts of law as a science, the emergence of the United States as a world power, the rise and fall of populism, the Progressive Era, the Spanish-American War and America’s introduction to imperialism, World War I and its tragic denouement concerning the ill-fated League of Nations, and finally the Roaring Twenties.

Taft did more than just observe these developments. They formed the background for a career in which he held an unusual variety of positions, virtually all of them appointed. As a young superior court judge in Cincinnati, he rendered decisions on a variety of legal issues. As the U.S. solicitor general, he regularly appeared before the Supreme Court between 1889 and 1892 and won the great majority (sixteen out of eighteen) of the cases in which he argued. As a judge in the newly created U.S. Circuit Court of Appeals, Taft left his mark on the law especially in the fields of labor relations and industrial regulation, and as the president of the commission to govern the Philippines, he saw for himself what American adventures on the imperialistic stage might ultimately cost. His seemingly firm friendship with Theodore Roosevelt began in the 1880s and ripened to a point where as president TR not only offered Taft an appointment to the high court on at least two different occasions but also made him his secretary of war. In 1908 at TR’s urging Taft sought and won the Republican presidential nomination and succeeded TR as president. Their friendship shattered during his term, and in 1912 TR insisted on running against the man he had selected as his successor, ensuring defeat for them both by Woodrow Wilson. Upon leaving office Taft became a professor of law at Yale, his old alma mater (he declined to be a candidate for its presidency). In 1921 he was appointed chief justice of the United States by President Warren Harding.

Such is a very short summary of Taft’s early career, one remarkable for its variety and for the high level of attainment matched by the humiliation of galling defeat. With the exception of his ill-fated run for reelection, when it came to opportunities for advancement Taft had always seemed to be in the right place at the right time with the right friends. Looking back on his various legal careers, Taft affirmed that I love judges and I love courts. They are my ideals, that typify on earth what we shall meet hereafter in heaven under a just God.³ But Taft also possessed certain ideals and values to which he appears to have adhered with marked consistency. As he prepared to teach at Yale University, he looked forward to taking little excursions into various new fields of knowledge, resulting in the increased humility one has in regard to his own ignorance. He saw a very large sphere for change and reform and experiment. I wish to avoid as far as I can dogmatism and rigid conservatism, but history teaches so certainly some truths that a man who does not accept them is blind.⁴

2

In the fall of 1889 President Benjamin Harrison offered Taft appointment as the solicitor general of the United States. One of two significant moves by Congress to improve the federal judicial system during the late nineteenth century (the other being creation of the circuit appellate courts in 1891), the post of solicitor general had been established in 1870. Although a prime function of the solicitor general has always been to represent the United States in cases before the Supreme Court, the solicitor general also was on call to advise the attorney general, as well as the president himself. The solicitor general had to be familiar not only with federal statute law but also with current rules of federal practice, as well as decisions of the high court, all areas in which Taft previously had not needed nor acquired any expertise.

It is not surprising then that his first instinct was to decline Harrison’s offer, even though his wife, Helen—invariably referred to as Nellie—strongly encouraged him to accept it. So too did Will’s father, Alphonso. Both father and wife may well have realized that Taft’s new position placed him very close to the entire executive branch of the federal government, to say nothing of the high court. In fact however no solicitor general had ever been or would be appointed to the high court in Taft’s lifetime except himself. Misgivings aside, in a scenario that would be repeated more than once later in his career, Taft allowed himself to be persuaded to accept a position he did not really desire.

Indeed Taft tended to doubt the quality of his oral arguments as solicitor general. Reporting to Alphonso early in his tenure that I do not find myself at all easy or fluent on my feet, he alluded to his apparent inability to attract the sustained attention of a lot of mummies. The justices, he added, seem to think when I begin to talk that that is a good chance to read all the letters that have been waiting for some time, to eat lunch, and devote their attention to … other matters. But he would gain experience in not being overcome by circumstances. And so he did. After he had left the presidency, in 1913 Taft recalled with nostalgia and humor his two years as solicitor general.⁵

He observed that the Supreme Court is a great court. They hear you state the case, and after that when you go on to make your argument, if they are with you they don’t pay much attention to you. For the first six months, I had good causes for the Government, and I would present the cases and then attempt to make an argument—and really it was just like talking to nine tombstones! In fact, it was a little worse than that, because they would be affirmative in their disregard of your argument…. Well in about six months after that, I got a lot of cases in which I didn’t have a good cause, and then I found that their attention was altogether too minute.⁶ Eight years after these comments, Taft became chief justice among the tombstones.

Unlike some other chief justices—Marshall, Taney, and Warren immediately come to mind—Taft had limited exposure to the practicality of politics, and this in spite of his single term as president. On the other hand, as will be seen, Taft possessed impressive administrative skills, which he retained beyond the presidency. With one exception he never ran for statewide office, never competed in any national election until 1908, and never enjoyed the political environment.⁷ The happiest years in his varied career were those when he sat on the bench.

As other books in this series have demonstrated, each chief justice leaves his mark on the court, some more distinct than others. But with the possible exception of John Jay, no chief justice has started with a clean slate. In the guise of precedent, decisions of earlier tribunals inevitably affect the court that the justice joins. Before considering the significance of key rulings handed down by the Taft court, some familiarity with the justices who constituted it, as well as with the existing state of federal jurisprudence as he took the center seat in 1921, is necessary.

During his presidency Taft appointed more jurists to the Supreme Court in four years than any other single-term chief executive in our history. He selected five new associate justices and elevated one already on the court, Edward White, to the center seat, the first time in our history that this had occurred.⁸ (It would not be the last.) Behind Taft’s elevation of White lies an intriguing set of circumstances.

Had Theodore Roosevelt been able to offer his erstwhile friend Will Taft the chief justiceship of the Supreme Court, both Taft’s later career as well as court history would have been very different. But TR never had this opportunity, and when Chief Justice Melville Fuller passed away on July 4, 1910, it was President Taft who had to select his replacement. Taft had made no secret of his yearning for the center seat. Yet for the time being such an event was an impossibility. On the other hand Taft was prepared to anticipate future possibilities as he decided on Fuller’s replacement.

His second selection to the court had been New York governor Charles Evans Hughes, a truly distinguished lawyer and public servant and an obvious candidate for the center seat. On the other hand Hughes was relatively young, a mere forty-eight, while Taft himself was five years older. If he selected Hughes as chief justice, there was a good chance that the former New York governor would outlive Taft, as indeed he did. On the other hand White was now sixty-five and was supported by former president Theodore Roosevelt, who already was acting like a presidential aspirant. One can sympathize with Taft as he suffered through his actuarial agonies and ultimately selected White. If he was to have any chance at all of gaining the center seat, it would probably be as a replacement for White and not Hughes.

So Taft made his decision and started a period of waiting that would ultimately last a decade. Two major developments took place in 1921. Warren G. Harding was inaugurated president, returning a Republican to the White House, and in mid-May Chief Justice White died. Now, with a new president who had already been informed by the former president that he could accept only the chief justiceship, Taft continued his wait, not without some anxiety replete with a synthesis of fatalism and hope. Finally on June 30 Harding sent Taft’s nomination to the Senate, which did not even bother to refer it to the Judiciary Committee, but confirmed him, albeit not unanimously, on the same day.

Meanwhile eight members of the Supreme Court had awaited word from President Warren Harding concerning his replacement for Chief Justice Edward White, who had passed away on May 19, 1921. In order of seniority they included Joseph McKenna, Oliver Wendell Holmes, William R. Day, Willis Van Devanter, Mahlon Pitney, James C. McReynolds, Louis D. Brandeis, and John H. Clarke.⁹

3

Alone among his brethren Joseph McKenna brought limited experience as a trial lawyer to the court. Although he had been admitted to the California bar in 1865, McKenna focused his attentions on a political career.¹⁰ After serving both as a local district attorney and a state legislator, from 1885 to 1892 held a seat in the U.S. House of Representatives. A staunch Republican McKenna got to know William McKinley, who supported his appointment to the Ninth Circuit Court of Appeals in 1892. He might also have become acquainted with William Howard Taft, happily ensconced at the time on the Sixth Circuit Court of Appeals. When McKinley won the presidential election in 1896, he selected McKenna as his attorney general. But McKenna served for barely six months as a cabinet member, and with the long-awaited retirement of Stephen Field from the high court, McKinley promptly selected the young Californian to replace him.¹¹ Although he may well have possessed legal instincts, McKenna felt that he lacked legal learning. For several months he attended courses at Columbia Law School, prior to taking his seat on the court.¹²

Similar to many conservative Republican jurists at the turn of the twentieth century, McKenna had a healthy respect—if not veneration—for property rights in the context of what William Wiecek has well described as classical legal thought.¹³ Thus he voted with the majority in Lochner v. New York (1905), a case that expanded liberty of contract, and Muller v. Oregon (1908), a case that restricted it. Yet McKenna wrote the majority opinion in Bunting v. Oregon (1917). Possibly unaware of any inconsistency in his voting, in 1923 he was with the majority in Adkins v. Children’s Hospital, a decision that apparently resurrected Lochner.¹⁴

While McKenna, again in concert with other jurists, supported the Sherman Anti-Trust Act (1890), Richard Hamm observed that during his twenty-six-year tenure, this jurist was most effective through his middle period, from 1911 to 1915. In these years he handed down two opinions that expanded national regulatory authority. In so doing he authored lucid and forceful statements of the federal power to use the commerce clause in the Constitution to promote the general welfare.¹⁵

In Hipolite Egg Co. v. United States (1911) McKenna upheld the Pure Food and Drug Act even though the case involved eggs, which, when they were declared contaminated, had not yet entered the stream of interstate commerce. Thus according to counsel they were exempt from federal supervision. The justice easily dismissed the claim. We are dealing, it must be remembered, with illicit articles, which the law seeks to keep out of commerce because they are debased by adulteration. Of course there was a long established distinction between the exercise of federal power and state power over articles of legitimate commerce. But it had no application here, with adulterated goods. The issue is whether articles which are outlaws of commerce may be seized wherever found.

McKenna found it easy to answer this question. [I]t certainly will not be contended that they are outside the jurisdiction of the national authority when they are within the borders of a state. The right to bar adulterated goods from interstate commerce is not to prevent merely the physical movement of [such] articles, but rather the use of them, … denying to them the facilities of interstate commerce. Such authority was surely within the discretion that Congress possesses in the execution of the powers conferred upon it by the Constitution.¹⁶

Two years later the high court considered the Mann Act, enacted in 1910. Passed during William Howard Taft’s presidency, the statute reflected a concern with apparently widespread national prostitution. The purpose of this legislation was aptly summarized by its title: An Act to further regulate interstate commerce and foreign commerce by prohibiting the transportation therein for immoral purposes of women and girls.¹⁷ The law forbade using interstate commerce for the purpose of prostitution or debauchery, or for any other immoral purpose, and upon conviction thereof levied a fine of $5,000 or imprisonment for not more than five years or both. The statute was to be known and referred to as the White-Slave Traffic Act.

Speaking for a unanimous court McKenna easily upheld the statute (as if any U.S. Supreme Court justice at the dawn of the Progressive Era wanted to appear eager to facilitate prostitution). McKenna noted of the commerce power that it is direct; there is no word of limitation in it, and its broad and universal scope has been so often declared as to make repetition unnecessary. He added that commerce included transportation of persons as well as property. Thus a person may move or be moved in interstate commerce, and if the object of such movement was for immoral or illicit purposes, it came within congressional purview. Defendants in this case argued to the contrary, that it is the right and privilege of a person to move between states, and that, such being the right, another cannot be made guilty of the crime of inducing or assisting or aiding in the exercise of it.¹⁸

McKenna was far from persuaded. Counsel urges a right exercised in morality to sustain a right to be exercised in immorality. He pointed to the numerous examples where previous congressional regulation had been upheld. The attempt to subvert it here constitutes the supreme fallacy of plaintiff’s error. It pervades and vitiates their contentions. In two sentences McKenna managed to summarize the uneasy relationship between state and federal regulatory authority.

Our dual form of government, he admitted, has its perplexities, State and Nation having different spheres of jurisdiction, … but it must be kept in mind that we are one people; and the powers reserved to the States and those conferred on the Nation are adapted to be exercised, whether independently or concurrently, to promote the general welfare, material and moral. This is the effect of the decisions, and surely if the facility of interstate transportation can be taken away from the demoralization of lotteries, the debasement of obscene literature, the contagion of diseased cattle or persons, the impurity of food and drugs, the like facility can be taken away from the systematic enticement to and the enslavement in prostitution and debauchery of women, and more insistently, of girls.¹⁹

Although McKenna remained on the bench for another ten years, his judicial output became increasing inconsistent, and by the time Taft arrived at the court, the justice’s mental acuity [had started] to deteriorate.²⁰ As will be seen it fell to Taft to persuade McKenna—and not without some difficulty—to retire in 1925. His tenure on the high court lasted for almost twenty-seven years.

Today Oliver Wendell Holmes is such an iconic figure in American law, with a number of his opinions and dissents now considered classics of their kind, that it becomes very difficult to believe that prior to the era of Woodrow Wilson, 1912–20, he felt himself so underappreciated both as a scholar and a jurist that he seriously considered retiring from the Supreme Court. A genuine Boston Brahmin, Holmes had been born into a patrician family where for a number of years he lived and functioned in the shadow of his famous father, the professor, pundit, and sometime poet Oliver W. Holmes Sr. One cannot know how long Holmes felt constrained by his father’s lasting reputation (Holmes Sr. died in 1894), but it may well have extended throughout his Civil War military experience—which included being severely wounded, twice—and even throughout the publication of his landmark treatise The Common Law, published in 1881. From 1882 to 1902 Holmes sat on the Massachusetts Supreme Judicial Court, and from 1899 to 1902 he served as its chief justice. In August 1902, a year after the death of Justice Horace Gray, also from Massachusetts, and at the urging of one of the president’s closest friends—Massachusetts senator Henry Cabot Lodge—Theodore Roosevelt appointed Holmes to the high court.²¹

Holmes would serve for almost thirty years on the Supreme Court. By the time Taft arrived in 1921, he was well on his way to attaining status as one of the greatest justices in the court’s history. His 1905 dissent in the hours of work case—Lochner v. New York—may well be one of his two most famous dissents.²² Here, in short almost epigrammatic prose, Holmes accused the majority of blind adherence to an economic theory that was plainly not a fundamental principle of right.²³ In that same year Holmes also spoke for a unanimous court in a case that helped to restore the potency of the Sherman Act (1890) as a vehicle for federal antitrust regulation, limited since the eight-to-one decision in U.S. v. E. C. Knight Co. (1895). In Swift and Co. v. United States the justices sustained the efforts by the Roosevelt administration concerning application of the Sherman Act to a combination of meat packers.²⁴ Holmes observed that the point of the combination between the various meat packers is to restrain and monopolize commerce among the states. In response to the argument that a potential for monopoly was not the same thing as its actual establishment, he commented that the Sherman Act directs itself against that dangerous probability as well as against the completed result. The government sought to prevent a course of conduct intended to be continued, and while the defendants cannot be ordered to compete, they can properly be forbidden to give directions or to make arrangements not to compete.²⁵

Finally brief mention might be made of Holmes’s evolving opinions involving free speech in the context of World War I. In 1919, on behalf of a unanimous court in Schenck v. United States, he articulated the clear and present danger doctrine, affirming the federal Espionage Act of 1917.²⁶ It should be noted that after Schenck Holmes appears never to have used the clear and present danger doctrine again except in dissent. But several of his famous dissents concerning free speech came after Taft had joined the court. Already Holmes had gained national and international stature as an icon of progressive jurisprudence.²⁷ In spite of his earlier ruminations about possible retirement after his tenth year on the bench, he remained on it until 1932. Thus he is one of the justices who awaited Taft in 1921 and were still there when he resigned in February 1930.

A native of Ohio, the son and grandson of lawyers, William R. Day graduated from the University of Michigan, spent a year in study at its law school, and began a twenty-five-year law practice in Canton, Ohio. He became a close friend and confidante of William McKinley, who maintained a law office in the same locale. One of McKinley’s first acts as president was to name William Day as an assistant secretary of state aiding John Sherman, who by 1897 had become virtually senile. With Day regarded as a lawyer of complete discretion, it was supposedly said of the State Department leadership in 1897 that the secretary knew nothing, his hearing-impaired associate (Alvey Adee) heard nothing, and his assistant (Day) said nothing. Within a year Day became secretary of state and represented the United States at the Paris Peace Conference, which ended the Spanish-American War. In 1899 McKinley named him to the Sixth Circuit Court of Appeals, where he joined William Howard Taft. Although Day served for four years, most of them were without Taft, whom McKinley persuaded to become the chief administrator in the Philippines. When Justice George Shiras retired from the high court in 1903 President Roosevelt tried to persuade Taft to return to the United States and take his place. But Taft declined, and TR turned to William Day. Taft described Day to the president as not a great lawyer but he is a good lawyer. He is very levelheaded, [a] common sense man of courage, loyalty and convictions.²⁸ Day was still on the bench when Taft arrived in 1921, but he resigned the next year.

Although Day served on the high court for nineteen years, like Justice McKenna—and unlike two of his more famous colleagues, Holmes and Brandeis—he failed to develop a consistent judicial philosophy. During his tenure the court confronted issues such as federal authority and the commerce clause, including antitrust policy, and at the same time the extent of the state police power. While Day in fact was sympathetic to the exercise of the state police power, his most well-known opinion came in Hammer v. Dagenhart (1918), in which Day rejected a statute enacted in 1916 during the Wilson Progressive Era. The Keating-Owen Act sought to impose federal regulation on child labor practices. Speaking for a bare majority of the court Day found the measure unconstitutional.²⁹

Building on the twenty-three-year precedent of United States v. E. C. Knight, an 1895 decision in which the court, at least to the majority’s satisfaction, sought to distinguish between manufacturing and commerce, Day argued that if Congress could regulate matters entrusted to local authority, as it attempted to do here—all freedom of commerce will be at an end, and the power of the states over local matters may be eliminated, and thus our system of government be practically destroyed. Not only had Congress overreached its exercise of regulating commerce; it was also interfering in a purely local matter to which the federal authority does not extend.³⁰

Joined by the recently appointed justices Louis Brandeis, John Clarke, and (inexplicably) Joseph McKenna, Oliver Wendell Holmes dissented. His opinion remains one the best examples of Holmes’s judicial values and contributed to his growing canonization as an outstanding jurist.³¹ I should have thought, Holmes noted sardonically, that if we were to introduce our own moral conceptions where in my opinion they do not belong, the issue of child labor was preeminently a case for upholding the exercise of all its powers by the United States. The act under consideration does not meddle with anything belonging to the States. Indeed they may regulate their internal affairs and … domestic commerce as they like. But when, as in this case, they seek to send their products across the State line, they have crossed another point of legal demarcation. Now such commerce belongs not to the States but to Congress to regulate. Noting previous high court decisions such as Champion v. Ames (1903), which had reaffirmed congressional authority over interstate commerce, Holmes concluded that the national welfare as understood by Congress may require a different attitude within its sphere from that of some self-seeking state.³² It seems to me entirely constitutional for Congress to enforce its understanding by all the means at its command.³³

Day’s insistence on a traditional interpretation of the commerce power meant just that: commerce, not manufacturing. If Hammer had concerned the merchandising rather than the manufacturing of furniture, the outcome of the case might have been different. While he had no trouble supporting the holdings reached in Hoke or Hipolite (see above), Day