THE ERA OF MELVILLE WESTON FULLER

Jeffrey B. Morris

During the twenty-two years that Melville Weston Fuller was presiding over the Supreme Court, the United States experienced a wave of social tension, followed by a period of reform. Possessed by a spirit of jingoism, the United States acquired a small empire and involved itself in great power politics to a greater degree than ever before. These were pivotal years as America, already the world's greatest economic power, moved from slower, rural times to a more urbanized and recognizably modern nation.

While the results of some of the great cases to come before the Fuller Court seem unfortunate to today's observers, judged by the standards of its own time, the Court picked its way through an extraordinarily heavy docket of difficult issues. Its decisions were generally in tune with both the nation and consistent with its great tradition of independence. By the end of the era, the Court had greatly enhanced its power and that of other courts as overseers of the nation's economy. While the personnel of the Court numbered fewer "superstars" than in other times, they nonetheless worked together harmoniously and had at the helm a genuine leader of men.

The Justices

History has not been kind so far to the Justices who served while Fuller was Chief Justice. For decades the prevailing view of scholars has been that the Justices were mediocre1 and their jurisprudence sterile.2 One distinguished observer wrote of the Fuller Court that it was

a body dominated by fear--the fear of populists, of socialists, and communists, of numbers, majorities and democracy.3

In retrospect, the Court seems to have chosen the wrong direction in such significant areas of the law as government regulation of the economy, the rights of labor, and racial equality. But, even if this is so (and the most significant recent scholarship offers a somewhat different interpretation4), this was a Court of hardworking and honorable men, who mastered a huge caseload whose character was transformed from that of a predominantly common law docket to one dominated by questions of public law.

Nineteen Associate Justices served with Chief Justice Fuller. Eight of these were "holdovers" from the time of Chief Justice Morrison R. Waite. The impact of five of these on the Fuller era came primarily from their previous decisions, for they died within half a decade: Stanley Matthews (1881-89), Samuel F. Miller (1962-90), Joseph P. Bradley (1870-92), Lucius Quintus Cincinnatus Lamar (1888-93), and Samuel Blatchford (1882-93). Matthews was ill when Fuller took his oath and the two never sat together. Miller and Bradley were two of the most able figures ever to sit on the Court. Lamar's historic importance comes from his career in the Congress where he symbolized North-South reconciliation. Blatchford was the "workhorse," who could be called upon to pen annually a huge quantity of cases in such areas as admiralty, patent, bankruptcy, and copyright law.5 Blatchford wrote the opinion in Chicago, Milwaukee and St. Paul Railway Co. v. Minnesota,6 the pivotal case when the Court accepted the Due Process Clause as a substantive limitation on state legislative powers. Miller concurred in that decision, while Bradley and Lamar were two of the three dissenters.7

Stephen J. Field (1863-97) was intermittently senile during his last years on the Court as he stubbornly insisted on breaking John Marshall's record for tenure.8 Nonetheless, Field contributed to the triumph of his jurisprudential views, linking vested rights and the Due Process Clause.

The seventh hold over Justice, Horace Gray, brother of the renowned Harvard Law Professor John Chipman Gray, had served seventeen years on the Supreme Judicial Court of Massachusetts, eight as Chief Justice. In 1875 his legal secretary at that court was none other than Louis D. Brandeis. In twenty years on the Supreme Court of the United States (1882-1902), Gray distinguished himself as a legal scholar, whose long and somewhat heavy opinions were thorough essays in legal history.9

John Marshal Harlan was the only man to serve throughout Fuller's tenure (1877-1911). Harlan's judicial work has resonated throughout modern constitutional jurisprudence to a far greater degree than any of his colleagues, save Holmes. The Supreme Court came to accept much of his view that the Fourteenth Amendment should be incorporated against the states and that the Reconstruction Amendments required racial equality. Convinced of his moral rectitude, and better at leading than at following,10 Harlan dissented with opinions 119 times, often passionately.11

Eleven Justices were appointed by five Presidents (Benjamin Harrison, Grover Cleveland, William McKinley, Theodore Roosevelt and William Howard Taft) to the Court during Fuller's years. These eleven were, on the whole, able men and appealing personalities, but only one, Oliver Wendell Holmes, Jr., proved to be a mighty jurisprudential figure. The tenure of several was very short. Howell E. Jackson served but two years (1893-95) and William T. Moody but two full terms in less than four calendar years (1906-10). Horace H. Lurton (1909-1914) took his oath as an Associate Justice almost six months to the day before Fuller's death, and did not leave much of an imprint in that short time. Jackson is probably best known for his brave trip from Nashville to Washington, while gravely ill, to hear the reargument of the Income Tax case. Although the Court had previously divided four to four on the crucial issue of the constitutionality of the personal income tax, Jackson's vote did not ultimately prove decisive as one of the other Justices changed his vote. But he had signed his death warrant by attending the Court session.

Moody's impact was to prove greater. Looking like Theodore Roosevelt and sharing with him a love of the vigorous outdoors life, Moody was stricken by rheumatoid arthritis, much shortening his judicial career. Nonetheless, Felix Frankfurter grouped him with Benjamin R. Curtis and Benjamin Cardozo as "the only three Justices who left an impress despite a short tenure."12

Henry Billings Brown (1891-1906) and George Shiras, Jr. (1892-1903) each served a little more than a decade. Brown usually took the center position, doing what he could to prevent splits on the Court. His deep sympathy for the plight of Indians did not extend to the black American, for it was Brown who wrote the opinion for the Court in Plessy v. Ferguson, although he later admitted to doubts about the decision.13 Brown believed in adapting the Constitution to new conditions.14

Shiras was concerned with the human consequences of his jurisprudence. According to Arnold Paul, Shiras may be "viewed primarily as a traditional individualist, who feared the growth of centralism but was willing to allow state experimentation."15 Like Stanley Reed a half century later, Shiras retired in good health while in his early seventies and lived on into his nineties.

William Rufus Day (1903-22) and Joseph McKenna (1898-1925) served considerably longer terms than Brown and Shiras. Day came to the Court after a distinguished public career, which included service on that legendary Court of Appeals for the Sixth Circuit where William Howard Taft and Horace Lurton had been his colleagues. He had led the vain diplomatic effort to avert the Spanish-American War while he was Assistant Secretary of State. Briefly, he held the office of Secretary of State. As a member of the Peace Commission, Day attempted to limit acquisition of empire. Day was a moderate on the Supreme Court, whose tact, charm, and ability to compromise made him a harmonizing figure. He construed national powers strictly, state powers liberally, and was a vigorous champion of antitrust enforcement.16

Joseph McKenna arrived at the Supreme Court with superficial legal training, an undistinguished record as a Circuit Judge, poor writing style, and what appeared to be too-close connections with the Southern Pacific Railroad. He seemed so ill-equipped for the Court that Chief Justice Fuller paid a call on President William McKinley unsuccessfully attempting to talk him out of the appointment.17 Yet, McKenna would grow in office "with a certain grace, skill and even sophistication."18 While his opinions where often prolix and he could be accused of inconsistencies, McKenna worked "terribly hard" and refused to judge reflexively.19

As an Associate Justice (1894-1910), Edward Douglass White was a strong and well-liked figure. In but a few years he was able to bring the Court around to his views on the issues raised in cases involving the newly acquired overseas possessions, and by 1911, to his interpretation of the Sherman Act. [White succeeded Fuller as Chief Justice and served over a decade (1910-21).]

Along with White, two other able figures have received insufficient scholarly attention. Rufus W. Peckham (1896-1909) resembled Chief Justice Fuller physically, with his bushy white hair, white mustache, cameo face, and piercing eyes.20 Confident of the rightness of his results, Peckham's style of opinion writing "more nearly approached that of an essayist than any other Justice."21 His most notable opinions, those in Allgeyer v. Louisiana22 and in Lochner v. New York,23 elevated liberty of contract to a constitutional right and confined state regulatory process. Yet, he also rendered a number of notable opinions which to some degree restored vigor in enforcement of the Sherman Act.24

David J. Brewer (1890-1910) generally had been considered to be the most property-conscious member of the Court of this period. He was, after all, the nephew of Stephen J. Field. In the 1890's, he gave a series of speeches "railing against anarchism and the attack of the masses upon property."25 But John E. Semonche reminds us that Brewer gave other speeches, opposing American colonialism and supporting women in their quest for political rights. Semonche considers Brewer to be a more complex figure than has generally been thought, concluding that as a judge he was more pragmatic than ideological, that he was "sensitive and responsible," seeking to "come to grips with himself and his society in a changing age."26

In marked contrast to most of the Justices who have been appointed to the Supreme Court, Oliver Wendell Holmes, Jr., did not need much time to become accustomed to it, to enjoy it immensely, or to become a force with which to be reckoned. He brought to the Court learning, independence, his pragmatic skepticism, and literary felicity.27 With his conception of law as an integral part of the historical and social fabric, Holmes' approach to judging differed greatly from that of Peckham, Brewer, or even Harlan. In his very first opinion, he stated:

While the courts must exercise a judgment of their own, it by no means is true that every law is void which may seem to the judges who pass on it excessive, unsuited to its ostensible end, or based upon conceptions of morality with which they disagree.28

Although Holmes could read restrictively legislation such as the Sherman Act, the Interstate Commerce Commission Act, and the Pure Food and Drug Act,29 his approach generally permitted the legislature great latitude, because he realized that:

Great constitutional provisions must be administered with caution. Some plan must be allowed for the joints of the machine, and it must be remembered that the legislatures are the ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.30

Holmes would be the last survivor on the Court of these years, serving after Fuller's death for over two more decades.

In Fuller's early years, he may have found that a difficult group of men to manage. Henry Steele Commager suggests as much:

It was a difficult Court for anyone to manage, a court of prima donnas. There was the magisterial Field, who had come to think of himself as a savior of the Constitution; there was the powerful and cantankerous Harlan, the Great Dissenter of his day; there was Miller, before whose blasts from the bench young attorneys paled and fainted; there was the erudite Gray, successor to Story, and like Story, champion of precedents. Soon White, who was to be Chief Justice, joined the Court, and the Olympian Holmes. All of them knew more law than Fuller --or so it seemed; all of them had long judicial experience; all of them were public figures.31

But, after Field's retirement, rather than prima donnas, the Court appears to have been composed of a lively and good-natured group of men, who enjoyed each other's company and shared interests outside the law. Gray and Shiras were fishermen. Gray and Harlan loved to take walks together. Day hurried from the bench to the ballpark, and passed bulletins to his colleagues. Shiras was an enthusiastic card player. Harlan was a golfer, and, off the bench, a "light hearted and warm colleague."32 To Fuller, Brewer was "one of the most lovable of them all."33

But, even if Shiras, Brown, White, Day, Moody, Holmes, and Brewer were all congenial personalities, they were also strong men who had definite opinions on the great issues the Court faced. That this was a Court dominated by congeniality rather than temperament was due in large measure to the man at the helm, who was remarkably successful at bringing out the harmonious sides of his colleagues.

The Chief Justice

Melville Weston Fuller was an excellent manager of the business of the Court. He was unusually successful at fostering a warm environment, where the Justices could work relatively free of friction. He was as well the first modern Chief Justice to successfully influence congressional consideration of major legislation affecting the jurisdiction and structure of the federal court system. During his tenure Fuller performed with energy, dignity, and integrity the increasingly demanding roles of the Chief Justice.

Fuller came to his great office less well known than any man who has ever served as Chief Justice. He had less experience in public life than any Chief Justice other than Waite. Fuller had been Solicitor and President of the Common Council in Augusta, Maine. He had served one term in the Illinois State House of Representatives (1863-65), and played an influential role at the Illinois Constitutional Convention of 1862. He was an influential Democrat, who had attended four Democratic National Conventions. Fuller was compatible with President Grover Cleveland personally and politically.34 He came from the right circuit and the right state.35 He was the right age, fifty-five, and he had a reputation for integrity.

Although he was hardly a Daniel Webster or Phillip Phillips in his experience at practicing before the Supreme Court, Fuller had appeared before the Court a number of times.36 He was experienced at the kind of business which came before the Supreme Court.37 He was a successful Illinois attorney, who had represented such clients as Marshall Field and the Illinois Central Railway. While not a profound thinker like Holmes or Gray, Fuller was a cultivated man, who had a library of more than 6,000 volumes.38 He wrote poetry, contributed to literary magazines, and adored the theater.

Fuller was appointed Chief Justice of the United States by President Grover Cleveland on April 30, 1888, confirmed by a vote of forty-one to twenty, commissioned on July 20, and took the oath of office on October 8, 1988.39 He was to serve until his death at the age of seventy-seven on July 4, 1910.

Those "accustomed to the massive and somewhat leonine aspect of Chief Justice Waite"40 were surprised to see as the new Chief Justice "a dapper little man," just five and one-half feet tall, weighing about 130 pounds. His seat had to be elevated, and he was given a hassock to keep his feet from swinging in the air.41 Still, his appearance was striking. Visiting the Court on April 7, 1895, Arthur Brisbane reported:

His white hair is the most wonderful white hair ever seen. It is very thick--perhaps an inch and a half thick on top of his head. It is very long, and rolls away in waves on each side of his skull. Where the part is made it doesn't look like hair, but like waves of silver cut in two by the keel of some little ship. Chief Justice Fuller has a mustache that is as white and as glossy as anything on earth except Chief Justice Fuller's hair. His hair and mustache monopolize attention to such an extent that the rest of him was not noticed much; but the Chief Justice has a most beautiful smile, which shows at either end of his mustache, and when he talks a lot of pleasant, good-natured wrinkles gather around the corners of his eyes.42

After Waite's death, Attorney General August Hill Garland had written to President Cleveland, expressing his belief that the Chief Justice amounted "in weight to two-thirds of the Court."43 If Garland meant that Chief Justices had exercised such dominance on substantive matters, this was not historically correct then, not has it happened since. The Chief Justice has somewhat greater opportunities for influence than the Associate Justices, but probably only Marshall has ever exercised such substantive dominance over the Supreme Court, and then for less than half his tenure. There was, therefore, no "Fuller Court," if by that we mean a Court dominated by a Chief Justice on substantive matters.

Fuller more than "pulled his oar" in writing opinions. He ranks fifth among the first 100 Justices in total opinions (892); third (behind Holmes and Waite) in number of opinions written for the Court (750); second (to Waite) in average number of opinions written per year (42.48).44 In the 1894 term alone, Willard L. King, his biographer, credited him with writing seventy opinions.45

But his opinions have not had lasting influence. While he was not a "lightweight," he did not have an overpowering legal mind. Whatever literary qualities attached to his poetry and speeches deserted him when he penned opinions. His jurisprudential views were sympathetic to constitutional protections for the rights of property. The Dictionary of American Biography reports that he approached the major questions which came before the Court as

an old-time Democrat, friendly to the doctrine of state rights, and as a sincere believer in individualism. He inclined toward strict construction of all governmental powers as against the political liberty and economic initiative of the citizen, and of federal powers as against the rights of the states. He was resolute in insisting that the powers of Congress were limited, being derivable only from specific grants, reasonably construed, and not from any assumption of an underlying "national sovereignty." On the other hand, while he deemed the line rightly drawn he was unhesitant in giving to both the states and the federal government the logical and liberal development that constructive statesmanship required. . . .

And though his human sympathies were frequently displayed in solicitude for the protection of women and family interests and for improved conditions of labor, his voice was consistently raised for the upholding of traditional rights of person and property against the regulating tendency of the time. He had too much human sympathy and scholarship to be a reactionary or obstructionist, tested by the views of his day; nevertheless, legislatures and courts (including his own) began within a few years after his death to move swiftly away from the principles of "property" and "freedom of contract" which he, with his colleagues, accepted as fundamental.46

The Chicago Bar, in its memorial, stated that Fuller was conservative and old-fashioned, but not a reactionary, and never a Philistine or Tory.47

Yet, Fuller's influence on the way the Court worked was profound. He was one of the best chairmen of the nine-man committee in history. A conciliator par excellence, Fuller could quell the acrimony which frequently occurred when strong personalities were grappling with great issues. He created an atmosphere which made carrying out the job of a Justice much easier. This he could do because he was a lovable man, who knew how to deal with men. The adjectives gentle, kind, sympathetic, and patient were used to describe a man "whom anyone would be proud to have as a friend."48

Fuller knew how to cultivate men. Naturally warm, he deliberately sought the friendship of his colleagues. He had dinners for each newly appointed Justice. His modesty and willingness to defer to his colleagues became useful tools. He could have spoken at the centennial celebration of the organization of the federal judiciary, but instead asked Field to speak. His great success at assigning opinions was due in part to the fact that he did not choose to write the "great cases," at least after the 1894 term. Fuller assigned such opinions to others. Perhaps he lacked self-confidence; maybe he did not wish to be at the focal point of great national controversies; or perhaps it was a conscious strategy to facilitate intra-court harmony.49 Whatever the reason, it worked, and a responsibility which often had bred resentments was largely free of them.50

An agreeable companion, with charm and a sense of humor, Fuller presided over the conference of the Justices with firmness and dignity. His wit was a great solvent when tempers flared. Fuller originated the custom of requiring each Justice to greet and shake hands with every other Justice,51 a tradition which continues to this day. He was willing and able to modify language in his opinions. He respected the opinions of others, disagreed without being disagreeable, and did not seem to bear a grudge. He was a placator, who had, to paraphrase Holmes, the talent for "tinkering a compromise."52

But no matter how able Fuller was at dealing with men, like all Chief Justices (other than Marshall for some of his term) he proved unable to eliminate dissent. The Court was often greatly divided. There were sixty-four five-to-four decisions during this era, more than in the twenty-two following years.53 There were times, especially when Harlan was dissenting, when this generated great passion in open court.54 Although Fuller was unable to eliminate dissent (and dissented without opinion himself an increasing number of times in his later years), he did succeed in preventing destructive feuds from developing.

Along with the ability to manage men, Fuller had the ability to manage the business of the Court. He was hard-working and attentive to detail. He acted decidedly and promptly when action was necessary. He understood the Court's practices and procedures, and kept the docket moving.55 He worked well with his colleagues, and it appears, with the Court's other officers and other employees. He presided with grace and dignity. Felix Frankfurter stated that "there never was a better administrator of the court than Fuller."56 Miller and Holmes, spanning seventy years of the Court's history (1862-1932) and six Chief Justices, both considered Fuller the best presiding officer during the years in which they sat.57

While Fuller did not have the responsibility for the Supreme Court building or for overseeing the several hundred employees that his successors would, he did have to deal with some personnel problems. The first of two court Reporters who served during this period, John Chandler Bancroft Davis (1883-1902), was a great source of irritation to some of the Justices. In the best of times, with the best of men, the work of the Reporter had been a focus for tension. But, according to Willard L. King, Reporter Davis was condescending to the Justices and somewhat inattentive to his work. Davis would fail to make corrections and grew angry at those who requested them. As he aged, "the loftiness of his condescension increased as his capacity to do his work diminished."58 Fuller's attention to detail extended to matters of punctuation and capitalization. He handled Davis (and Davis' critics from within) with diplomacy, ultimately securing his resignation.59

As Chief Justice, Fuller was responsible for presiding over the public sessions of the Court and symbolizing its dignity. Former Attorney General Richard Olney stated that:

[d]uring his Chief Justiceship the court at Washington has been universally acclaimed as the most agreeable tribunal in the country to appear before.60

In presiding over argument, Fuller has been described as dignified, patient, and attentive, and hailed for putting lawyers at ease. Olney noted that he was:

. . . especially considerate of the debutante whether young or old, and many a first appearance at the bar of the court at Washington has been saved from wreck by the encouraging nod and smile of the Chief Justice.61

Felix Frankfurter, who argued before Fuller, wrote:

He presided with great but gentle firmness. You couldn't but catch his own mood of courtesy. Advocates, too, sometimes lose their tempers, or in the heat of argument, say things they should not. Soon these men, who looked at him out of the corner of their eyes, felt that they were in the presence of a chief whom they could greatly respect.62

Fuller was aware of the importance of ceremony, and during his tenure even the procession for the Justices to the Courtroom inspired profound respect.63

Although the Nineteenth Century Chief Justices were not called upon to be "head of the federal court system," Fuller played an important role in securing passage of the Circuit Court of Appeals Act of March 3, 1891, one of the most important pieces of legislation in the history of the federal court system.

While the roots of the legislation can be traced back to the 1790's, that Act was the culmination of two generations of increasing concern. Fuller had campaigned for relief for the Court while he was an attorney. As President of the Illinois Bar, one year before his appointment as Chief Justice, he recommended legislation to aid the Court.64 When he became Chief Justice a year later, he saw first-hand how the Court was drowning in filings. When he assumed office, there were 1,500 pending cases. During his first term, the Court disposed of over 400 appellate cases (242 with written opinions). But during that term 550 cases were filed. In 1890, 623 cases were filed.65

Less than two years after Fuller became Chief Justice, he gave a dinner in honor of newly appointed Justice David Brewer, to which he invited the members of the Court and those of the Senate Judiciary Committee. Fuller had already been cultivating the Committee Chairman, Republican Senator George F. Edmunds of Vermont, who had opposed his confirmation. Several weeks after the dinner, the Committee sent to the Chief Justice copies of all pending bills for the relief of the Supreme Court, requesting the views of the Justices. Fuller asked Justice Gray to draft a response. Gray's report, with eleven recommendations, six involving Courts of Appeals, was unanimously approved by the Justices and transmitted to the Committee, on March 12, 1890.66 Legislation was passed within a year.

The new law was far from perfect, but its immediate effects were salubrious. Nine new Courts of Appeals were created as clearly defined intermediate appellate courts. They were given jurisdiction for final disposition over various classes of cases (such as diversity, patent, admiralty, revenue, and most commercial law), subject to discretionary Supreme Court review via certiorari or certification. The flood of litigation receded. In 1890, 623 appellate cases had been filed; in 1891, 379 were filed, and only 275 in 1892.67 The backlog in the appellate docket, which had been over 1,100 cases in 1889, dropped to 700 in 1893, and to 300 by 1900. The average of 250 cases decided with full opinion from 1888 to 1896 declined to under 200 the succeeding eight years (although an additional twenty cases were decided by opinions per curium annually). The Justices were able to enter a new century with a manageable job.

Fuller took the duties of the Chief Justice as Chancellor of the Smithsonian Institution seriously. He missed only one meeting of the Board of Regents during his entire tenure.68 He carried on extensive correspondence with Smithsonian Secretaries Samuel P. Langley and Charles D. Wolcott on a variety of matters including the subject of legislation affecting the Institution. He gave the Smithsonian legal advice, and handled such ministerial matters as the arranging of meetings and the approval of minutes.69

Under Fuller the Office of Chief Justice once again had an international dimension. A century before Jay and Ellsworth had carried out diplomatic missions abroad at presidential request. Fuller, like his colleague David Brewer, was committed to the idea of settling disputes between nations by orderly legal process through courts of arbitration.70 He was a vice president and an executive councilor of the American Society for International Law (Brewer was a founder). As one of four American representatives on the Permanent Court of Arbitration at the Hague, he was chosen by the British government as its representative in the matter of the Muscat Dhows.71

By far the most important and demanding of these assignments was the Venezuela-British Guiana Arbitration. Fuller was chosen to serve by the President of Venezuela while, under the terms of the arbitration treaty, the U.S. Supreme Court appointed Brewer (who had been Chairman of an American Commission to determine the boundary) as the second of the five arbitrators. As arbitrator, Fuller read thirty volumes. There were fifty-five days of argument and six days of conference, which took place during the hot summer of 1899 in Paris.

Fuller did, however, decline to allow his name to be considered for appointment to the Peace Commission, which negotiated the treaty which ended the Spanish-American War, stating that:

My duty to my country lies in the discharge of my duty to the Court over which I preside and the labors of the Court are, as you know, arduous and many matters of detail necessarily devolve upon the Chief Justice. Nothing but some imperative exigency ought to be allowed to interfere in any way with the conduct of the business that we are appointed to perform and I am quite sure that the Chief Justice should not take on any additional burden.72

With such varied obligations, it is no surprise that Fuller, like all who have been Chief Justice since Waite, felt constantly "driven." At the end of the first term he confessed, "I am so weary I can hardly sit up," noting that "all of the time a hundred other things intervene to take precious minutes."73 The cumulative fatigue was from time to time aggravated by having to travel to South Carolina to preside in hot weather. While Fuller's predecessors had presided over the Fourth Circuit (from Marshall on), he would have preferred the Seventh Circuit, so he could visit Chicago. His brethren decided against him and left that Circuit to Harlan. Fuller also suffered more interruptions from judges of the Fourth Circuit, who were close by, than he would have had he been granted the Seventh Circuit.74

But, if Fuller was, like other Chief Justices, over-worked, like his predecessors and successors, he also enjoyed the office. Turning down Cleveland's offer to be Secretary of State in 1893, he admitted that:

I am fond of the work of the Chief Justiceship. It is arduous, but nothing is truer than "the labor we delight in physics pain."75

Fuller may also have been motivated in turning down the State Department by a desire to protect the prestige of the office of Chief Justice. His letter to Cleveland is reminiscent of the letters of Morrison Waite in 1876 disavowing presidential ambitions.76 Fuller wrote:

I am convinced that the effect of the resignation of the Chief Justice under such circumstances would be distinctly injurious to the court. The surrender of the highest judicial office in the world for a political position, even so eminent, would tend to detract from the dignity and weight of the tribunal. We cannot afford this.77

Melville Weston Fuller served almost twenty-two years as Chief Justice, the third longest tenure in that office. If his intellect was not extraordinary,78 his executive abilities were.79 No less an observer than Holmes was moved to write:

I think the public will not realize what a great man it has lost. Of course, the function of the Chief Justice differs from that of the other judges only on the administrative side, but on that I think he was extraordinary. He had the business of the Court at his finger ends, he was perfectly courageous, prompt decided. He turned off the matters that daily called for action, easily, swiftly, with the least possible friction, with inestimable good humor and with a humor that relieved any tension with a laugh.80

The Life of the Court

Looking back at the Court during the Fuller years, there is much to remind us of the activities of the Court of our day. The term was long--from mid-October to May or June. The Justices worked hard. More cases were heard and decided with opinions on the merits by the Court under Fuller than by the Court under any other Chief Justice--5,465. The Court averaged 248 cases each year, second only to that of Waite.81 Eight of the nineteen Justices of the era rank among the sixteen most productive opinion writers in the history of the Court.82 Seven Justices averaged over twenty-five majority opinions per year.

Then, as now, the Court's docket was remarkably varied and interesting. For example, the Court decided suits aimed at blocking construction of the Panama Canal,83 cases involving legal bans on oleomargarine,84 ownership of the Chicago Lake Front,85 and the question of pollution over state boundaries.86

Then as now, salaries were low. In a time when the cost of living was far, far lower (the cost of beef and veal was ten cents a pound in Junction City, Kansas, in 1900)87, the Chief Justice was paid $10,500 (raised to $13,000 early in the first decade of the twentieth century) and the Associate Justices, $10,000 (later $12,500). For some Justices this proved to be a severe hardship, as in the case of Justice Miller, who after twenty-eight years on the Court, left his widow a charity case.88

Then, as throughout the Court's history, the institution was from time to time short-handed due to illness. Perhaps the worst term in the entire history of the Court was Fuller's last. Moody was incapacitated and Harlan was aging. Peckham died in October, Brewer in March, and Fuller in July.

Then, as now, the quality of attorneys who appeared before the Court varied greatly. One day a young lawyer from Kansas argued an appeal dressed in a yellow tweed suit, flowing necktie, pink shirt, and tan shoes. In the midst of his argument, Justice Brewer interrupted to ask, "Mr. Counselor, what do you think the status of an allottee is?" The attorney exclaimed, "If you fellows up there don't know, how do you think us fellows down here should know?" Court Reporter Butler related the reactions on the bench:

The shocked expression on the face of dear Chief Justice Fuller will never be forgotten. Justice Holmes, shaking with laughter, buried his face in his arms on the bench to hide his amusement, and there was a sort of dazed expression on the features of the other members of the Court.89

Then, as now, the Chief Justice tightly controlled the sessions. With two minutes left until the end of the day, former President Grover Cleveland reportedly said that he would only detain the Court for a few minutes. His old friend, Fuller interrupted, "Mr. Cleveland, we will year you tomorrow morning."90

Perhaps the outstanding piece of lawyering during this period was Brandeis' celebrated performance in Muller v. Oregon. The "Brandeis Brief," which relied upon facts to justify Oregon's ten-hour law for women, impressed the Court. Sustaining Brandeis' argument, Justice Brewer noted:

It may not be amiss, in the present case, before examining the constitutional question, to notice the course of legislation as well as expressions of opinion from other than judicial sources. In the brief filed by Mr. Louis D. Brandeis for the defendant in error is a very copious collection of all these matters . . . significant of a wide-spread belief that women's physical structure . . . justify special legislation.91

Jurisprudence

Throughout its history the Supreme Court has been called upon to respond to the great issues dividing the nation. From 1888 to 1910 the Court dealt with such questions as the treatment of monopolies, industrial expansion, the rights of labor, Chinese aliens, and blacks, as well as issues arising from the acquisition of an overseas empire. In interpreting the Commerce and Due Process Clauses of the Constitution, the Fourteenth Amendment, and the ICC and Sherman Acts, the Fuller Court chose directions which, although consonant with the spirit of its age, needed to be corrected by almost 180-degree turns at a later time in order to avoid national crises.

In 1890 the Court had found a lodging for vested rights in the Constitution.92 In a mighty trio of cases which were handed down at the end of the 1894 term, the Court struck down the income tax, emasculated the Sherman Act, and sanctioned the injunction as a weapon against labor.93 Three years later the Court read into the Due Process Clause protection of liberty of contract.94 The high point of liberty of contract was reached in Lochner v. New York, where the Court held unconstitutional a state law making the employment of a baker for more than ten hours a day or sixty hours a week a misdemeanor.95

During this period the Court rendered other major decisions hostile to the rights of labor. It struck down a federal law prohibiting yellow dog contracts (promises not to unionize).96 In the Danbury Hatters case the Court held that unions could be sued for treble damages under the Sherman Act.97 The Court also struck down a law which was intended to reverse common law barriers protecting common carriers from strike this world employee injury suits.98

While the Court may not have been worse than the rest of the federal government, the state governments, or the public, it did erect constitutional barriers which were to make racial equality impossible, until overturned a half-century later. The failure of the Force (Federal Elections) Bill, which would have permitted supervision of federal elections in the South to protect the black vote, was a cue to the Court to acquiesce in laws disenfranchising blacks and creating apartheid. Along with the Plessy decision came decisions sanctioning mechanisms to deny the vote to the black American.99 The Court did, to some extent, attempt to deal with the critical problem of lynching. For the only time in history, defendants were held in contempt of the Supreme Court of the United States. In United States v. Shipp,100 a sheriff, jailer, and members of the bar were ultimately jailed for conduct which led to the lynching of a defendant whose case was before the High Court.

Decisions of the Court were generally unsympathetic towards the claims of Chinese aliens,101 Indians,102 religious miniorities,103 and women,104 although there were exceptions.105

In the area of criminal law, the Court refused opportunities to incorporate provisions of the Bill of Rights to protect individual rights against state action,106 while giving broad meaning to Fifth Amendment protections in ICC investigations.107 The Supreme Court did scrutinize extremely closely appeals from the decisions of the notorious "hanging judge," Isaac C. Parker, Territorial Judge for the Western District of Arkansas. In seven terms, the Court reversed thirty-one death sentences with written opinions and another four summarily. Parker attacked the Court for freeing guilty men on mere technicalities.108

While this was by no means a "modern court" in its approach to civil liberties questions, this does not mean that the Justices were totally insensitive to the claims of the outcasts and the disadvantaged. Brown was particularly understanding of the plight of Indians. Field, Peckham, and Brewer were sensitive to the claims of Chinese aliens, and Gray fought to secure citizenship for the children of Chinese parents born in the United States. While in his early years on the Supreme Court, Holmes could hardly be regarded as a civil libertarian, he would with Brandeis in years to come forge the beginnings of the modern jurisprudence of the First Amendment. In Weems v. United States, McKenna's opinion emphasized the need to interpret rights guaranteed to individuals with sensitivity to present conditions.109 It was Harlan whose commitment to civil liberties seems most modern, as he left a heritage of significant dissents in the areas of Fourteenth Amendment incorporation, race, and free speech.

In the most important recent book about the Court of these years, John E. Semonche argues that while the Court's rhetoric was formalistic and conservative, its results were pragmatic. He argues that "an activist court"

seemed quite willing to read sweeping principles into the law of due process, which, if applied in conformance with the breadth of their statement would have had a devastating effect on the ability of state and local governments to respond to needs of society . . . But the way the majority habitually coped with such principles was to temper logical deduction in favor of a determination of whether within the total facts of a case their application seemed advisable.110

To Semonche the Court of the Fuller (and White) years modernized fundamental law, making it practical for the complex world of the Twentieth Century.

While the jurisprudence of the Court during the years when Fuller was Chief Justice continues to be reassessed, it is fair to say that the Justices were hardworking and honorable, that they were able to concert their efforts, that they were led by an extraordinary manager, and that they upheld the great tradition of the Supreme Court of the United States as that strong, independent institution which is the ultimate arbiter of the Constitution.

For Further Reading

Two works in the New American Nation series (ed. Henry Steel Commager and Richard B. Morris) taken together constitute a fine general history of the period: Harold U. Faulkner, Politics, Reform and Expansion 1890-1900 (New York: Harper & Row, 1959) and George E. Mowry, The Era of Theodore Roosevelt and the Birth of Modern America 1900-1912 (New York: Harper & Row, 1958). By far the most enjoyable social history is the idiosyncratic work of Mark Sullivan, Our Times 1900-1925 (New York: Chas. Scribner's Sons, 1926-35).

There are relatively few acceptable full-length judicial biographies of the Justices who served during this era. See especially Willard L. King, Melville Weston Fuller, Chief Justice of the United States 1888-1910 (Chicago: University of Chicago Press, 1950). See also George Shiras, 3rd, Justice George Shiras, Jr. of Pittsburgh (Pittsburgh: University of Pittsburgh Press, 1953), and Joseph E. McLean, William Rufus Day, Supreme Court Justice from Ohio (Baltimore: Johns Hopkins Press, 1946).

Brief, brilliant summaries of doctrinal developments are contained in Robert G. McCloskey, The American Supreme Court (Chicago: University of Chicago Press, 1960). See also Arnold Paul, Conservative Crisis and the Rule of Law (New York: Harper Torchbook ed., 1969); G. Edward White, The American Judicial Tradition (New York: Oxford University Press, 1926), and another volume in the New American Nation Series--Loren P. Beth, The Development of the American Constitution, 1877-1917 (New York: Harper & Row, 1971). The most interesting recent scholarship is contained in John E. Semonche, Charting the Future, The Supreme Court Responds to a Changing Society 1890-1920 (Westport Ct.: Greenwood Press, 1978).

Notes

º I acknowledge with deep appreciation the research assistance of Mary Beth Clark and Daniel C. Richman.

1 In a 1972 poll of constitutional law scholars, Harlan and Holmes were voted "great"; Miller, Field, Bradley and White were graded "near great." All the others were rated average, save Howell Jackson, who was rated "below average." Albert P. Blaustein and Roy M. Mersky, "Rating Supreme Court Justices," 58 ABAJ 1183 (1972).

2 See, e.g., Albert S. Abel, Review of Willard L. King "Melville Weston Fuller," 53 W.Va. L.R. 99, 100 (1950).

3 Alpheus Thomas Mason, Review of Willard L. King, "Melville Weston Fuller, Chief Justice of the United States, 1888-1910," 36 Corn .L.Q. 606, 607 (1951).

4 John E. Semonche, Charting the Future, The Supreme Court Responds to a Changing Society, 1890-1920 (Westport, Ct.: Greenwood Press, 1978).

5 Willard L. King, Melville Weston Fuller, Chief Justice of the United States 1888-1910 (Chicago: University of Chicago Press, 1950), p. 134, and George E. Shiras, 3rd, Justice George Shiras Jr. of Pittsburgh (Pittsburgh: University of Pittsburgh Press, 1953), p. 110.

6 134 U.S. 418 (1890).

7 Horace Gray was the third.

8 Field, who had been averaging twenty-five to thirty opinions per term dropped to nine (1893 term), to six (1894 term), to four (1895 term), and to zero (1896 term).

9 John E. Semonche, Charting the Future, supra n. 4, pp. 146-7.

10 George E. Shiras, Shiras, supra n. 5, p. 106.

11 On Justice Harlan, see G. Edward White, The American Judicial Tradition (New York: Oxford University Press, 1976), pp. 129-45; John E. Semonche, Charting the Future, supra n. 4 in passim esp. pp. 99, 264ff; Alan F. Westin, "Mr. Justice Harlan" in (eds.) Allison Dunham & Philip B. Kurland, Mr. Justice (Chicago: University of Chicago Press, rev. enl. ed. 1964), pp. 93-128; Louis Filler, "Mr Justice Harlan," in (eds.) Leon Friedman & Fred L. Israel, The Justices of the United States Supreme Court 1789-1969, Their Lives and Major Opinions (New York: R.R. Bowker, 1969), II, 1281-95.

12 Quoted in Paul T. Heffron, "Theodore Roosevelt and the Appointment of Mr. Justice Moody," 18 Vand. L.R. 545, 566 n. 88 (1965). See also Paul Heffron, "Profile of a Public Man," 1980 Ybk SCHS 30; James F. Watts, Jr., "William Moody," in Friedman and Israel, The Justices of the United States Supreme Court, supra n. 11, III, 1799-1812.

13 163 U.S. 537. See Joel Goldfarb, "Henry Billings Brown," in Friedman and Israel, The Justices of the United States Supreme Court, supra n. 11, II, 1562; Henry B. Brown, "Dissenting Opinions of Mr. Justice Harlan," 46 Am. L. Rev. 336-38 (1912).

14 See Henry B. Brown, "Response," Dinner Given May 31, 1906 in Honor of Mr. Justice Henry Billings Brown 19 (Bar of the Supreme Court of the United States, ed. 1908). See also Charles A. Kent, Memoir of Henry Billings Brown (New York: Duffield & Co., 1915).

15 Arnold M. Paul, "George Shiras, Jr.," in Friedman and Israel, The Justices of the United States Supreme Court, supra n. 11, II, 1577-92 at p. 1584. See also John E. Semonche, Charting the Future, supra n. 4, p. 149 and George E. Shiras, Shiras, supra n. 5.

16 Joseph E. McLean, William Rufus Day, Supreme Court Justice from Ohio (Baltimore: The John Hopkins Press, 1946).

17 Willard L. King, Melville Weston Fuller, supra n. 5, pp. 228-30.

18 John E. Semonche, Charting the Future, supra n. 4, p. 434.

19 James F. Watts, Jr., "Joseph McKenna," in Friedman and Israel, The Justices of the United States Supreme Court, supra n. 11, III, 1719.

20 Willard L. King, Melville Weston Fuller, supra n. 5, p. 191.

21 Walter F. Pratt, "Rhetorical Styles on the Fuller Court," 24 Am. J. Legal Hist. 189 at 208, 21, 213 (1980).

22 165 U.S. 578 (1897).

23 198 U.S. 45 (1905).

24 See, e.g., United States v. Trans-Missouri Freight Association, 166 U.S. 290 (1897); Addyston Pipe and Steel Co. v. United States, 175 U.S. 211 (1899). On Peckham, see Richard Skolnick, "Rufus Peckham," in Friedman and Israel, The Justices of the United States Supreme Court, supra n. 11, III, 1685-1703 at p. 1698.

25 John E. Semonche, Charting the Future, supra n. 4, at p. 244.

26 Ibid., pp. 244-5. See also Francis E. Bergan, "Mr. Justice Brewer: Perspective of a Century," 25 Alb. L.R. 191 (1961); Robert E. Gamer, "Justice Brewer and Substantive Due Process: A Conservative Court Revisited," 18 Vand. L.J. 615-41; Walter F. Pratt, "Rhetorical Styles," supra n. 4, p. 231ff.

27 Rarely was a Holmes opinion longer than twelve pages of U.S. Reports. See John E. Semonche, Charting the Future, supra n. 4, p 161.

28 Otis v. Parker, 187 U.S. 606, 608 (1903).

29 John V. Orth, Book Review of John E. Semonche, "Charting the Future," 58 N.C. L. Rev. 399, 402 (1980).

30 Missouri, Kansas and Texas Railway Company v. May, 194 U.S. 267, 270 (1904).

31 Quoted in Charles Warren, Book Review of Willard L. King, "Melville Weston Fuller, Chief Justice of the United States, 1888-1910," 45 Ill L.R. 816, 818 (1951).

32 George E. Shiras, Shiras, supra n. 5, pp. 106, 108-9, 123; Joseph E. McLean, William Rufus Day, supra n. 16, pp. 108-9; Alan F. Westin, "Stephen J. Field and the Headnote to O'Neill v. Vermont: A Snapshot of the Fuller Court at Work," 67 Yale L.J. 363, 375 (1958).

33 Quoted in Francis E. Bergan, "Mr. Justice Brewer," supra n. 26 at p. 202.

34 Fuller had previously turned down Cleveland's offers of the offices of Chairman of the Civil Service Commission and Solicitor General.

35 Illinois furnished more litigation in the Supreme Court than any state other than New York. See Edward R. Finch, Book Review of Willard L. King, "Melville Weston Fuller: Chief Justice of the United States, 1888-1910," 51 Col. L.R. 142, 143 (1951).

36 Fuller had been admitted to practice before the Bar of the Supreme Court in 1872. The third case he argued there became Waite's first opinion as Chief Justice. Tappan v. Merchants' National Bank, 19 Wall. (86 U.S.) 490 (1874). See also 19 Wall (86 U.S.) iii.

37 Felix Frankfurter, "Chief Justices I Have Known," reprinted in (ed.) Philip B. Kirkland, Felix Frankfurter on the Supreme Court (Cambridge, Mass.: The Belknap Press, 1970), 471-95 at p. 475.

38 Willard Leroy King, "Some Experiences of a Biographer," 48 L. Lib. J. 370, 372 (1955); Frankfurter, "Chief Justices I Have Known," supra n. 37, p. 476.

39 Fuller was the first Chief Justice whose Commission bore the title "Chief Justice of the United States." See Charles Fairman, Reconstruction and Reunion, 1864-88, in (Gen. Ed.) Paul A. Freund. The Oliver Wendell Holmes Devise History of the United States, vol. VI, Part I (New York: MacMillan Co., 1971), 171.

40 Remarks of Mr. Henry A.M. Smith, Proceedings of the Bar and Officers of the Supreme Court of the United States in Memory of Melville Weston Fuller, Dec. 10, 1910 (Washington: 1911), p. 50.

41 See Smith in Proceedings, supra n. 37; Willard King, Melville Weston Fuller, supra n. 5, p. 137.

42 Quoted in Gerald G. Eggert and Phillip E. Stebbins, "The Chief Justice: The Image of an Office," 5 Am. Hist. Illus. No. 2, pp. 32, 38 (1970).

43 August Hill Garland to Grover Cleveland, April 4, 1888, quoted in Willard L. King, Melville Weston Fuller, supra n. 5, p. 111.

44 Albert P. Blaustein and Roy M. Mersky, The First One Hundred Justices (Hamden, Ct: Archon Books, 1978), 99, 101, 144, 148.

45 Willard L. King, Melville Weston Fuller, supra n. 5, pp. 339-40. King's statistics and Blaustein & Mersky's, supra n. 44, do not always agree.

46 "Melville Weston Fuller," in (ed.) Allen Johnson and Dumas Malone, Dictionary of American Biography (New York: Charles Scribner's Sons, 1931), VII, 60-62 at p. 61. Compare with Willard L. King, Melville Weston Fuller, supra n. 5.

47 "In Memoriam, Melville Weston Fuller, Chief Justice of the United States" in (ed.) Memorial Committee, In Memory of the Members of the Chicago Bar Association who have died during the year 1910-1911 (Chicago: Chicago Bar Association, 1911), 19-20.

48 Charles B. Nutting, Book Review of Willard L. King, "Melville Weston Fuller," 12 U. Pitt. L.R. 654, 655 (1951).

49 See Alpheus Thomas Manson, Review of Willard L. King, "Melville Weston Fuller," supra n. 3, p. 607; Willard L. King, Melville Weston Fuller, supra n. 5, p. 143, 333, 343; Graham Kirkpatrick, Book Review of Willard L. King, "Melville Weston Fuller," 3 Ala. L.R. 268 (1950).

50 There appears to have been some jealousy of Fuller's reliance upon Gray during the 1890s. There is also some evidence that Fuller occasionally assigned opinions from the minority. Willard L. King, Melville Weston Fuller, supra n. 5, p. 245.

51 Willard L. King, Melville Weston Fuller, supra n. 5, p. 134.

52 Willard L. King, Melville Weston Fuller, supra n. 5, pp. 138-9.

53 Fuller was in the majority of thirty-eight of these sixty-four five-four cases. Willard L. King, Melville Weston Fuller, supra n. 5, p. 138.

54 New York Times, May 21, 1895, pp. 1-2.

55 The Chief Justice was called upon to handle the disposition of practice cases, motions to dismiss for want of jurisdiction and correspondence--duties which were not shared by the other Justices.

56 Felix Frankfurter, "Chief Justices I Have Known," supra n. 37, p. 478.

57 Willard L. King, Melville Weston Fuller, supra n. 5, p. 335.

58 Willard L. King, Melville Weston Fuller, supra n. 5, p. 231. See also Alan F. Westin, "Stephen J. Field and the Headnote to O'Neil v. Vermont," supra n. 32.

Davis' successor, Charles Henry Butler (1902-16) was much less a focal point of tension.

59 Little is known about Fuller's relations with other employees of the Court, but it is known that his custom of giving each page boy a five dollar gold piece on Christmas Day was popular! George E. Shiras, Shiras, supra n. 5, p. 117.

60 See Proceedings, supra n. 40, p. 9.

61 See Proceedings, supra n. 40, pp. 8-9. See also Willard L. King, Melville Weston Fuller, supra n. 5, p. 330.

62 Felix Frankfurter, "Chief Justices I Have Known," supra n. 37, p. 477.

63 Benjamin S. Grossup, "The Late Chief Justice Fuller," 1910 Wash. St. B. Ass'n. Rpts. 159, 160.

64 "Annual Address by M.W. Fuller, President." 59 Proc. III, S.B.A. 65 (1887).

65 Felix Frankfurter and James M. Landis, The Business of the Supreme Court (New York: The MacMillan Co., 1928), 86-102.

66 See Willard L. King, Melville Weston Fuller, supra n. 5, pp. 149-50.

67 Frankfurter and Landis, The Business of the Supreme Court, supra n. 65, p. 102.

68 Charles D. Wolcott, "Melville Weston Fuller--1833-1910," Annual Report of the Board of Regents of the Smithsonian Institution 1910, p. 113.

69 Memorandum to the author from Mary Beth Clark, Apr. 26, 1980.

70 "In Memoriam, Melville Weston Fuller," supra n. 47, pp. 20-21.

71 He declined the request of the Japanese government to arbitrate the Window Tax case. Not long before his death he was requested to act as sole arbitrator in a dispute between Panama and Costa Rica. See Remarks of A.J. Montague, in Proceedings, supra n. 40, pp. 41-2.

72 Melville Weston Fuller to William McKinley, Aug. 19, 1898, quoted in Willard L. King, Melville Weston Fuller, supra n. 5, p. 247.

73 Willard L. King, Melville Weston Fuller, supra n. 5, p. 149. Perhaps it was to conserve time and energy; perhaps it was because of his concern about protocol or because of his dislike of Washington parties; but Fuller began to refuse invitations to attend social gatherings. This may have started the trend which resulted in the seclusion of the Court from formal Washington society. Ibid., 174, 252, 317-8. See also John E. Semonche, Charting the Future, supra n. 4, p. 8.

74 Willard L. King, Melville Weston Fuller, supra n. 5, p. 158.

75 Melville Weston Fuller to Grover Cleveland, Jan. 2, 1893, quoted in Willard L. King, Melville Weston Fuller, supra n. 5, pp. 165-6 at p. 166.

76 See Jeffrey B. Morris, "Morrison Waite's Court," Ybk. SCHS 1980, 39 at p. 46.

77 Melville Weston Fuller to Grover Cleveland, quoted in Willard L. King, Melville Weston Fuller, supra n. 5, p. 165. Fuller did risk embarrassment by continuing to correspond with Cleveland about political matters and by attempting from time to time to drum up support for Cleveland. See especially Fuller's correspondence with Judge Lambert Tree seeking to secure Chicago Times support for Cleveland: Ibid., pp. 163-4.

78 John Frank placed Fuller on the bottom of the list of Chief Justices from Marshall to Stone regarding legal attainments, accomplishments as a Judge and impact on our time. John P. Frank, review of Willard L. King, "Melville Weston Fuller," 60 Yale L.J. 202 (1951).

79 Louis P. Haller, Book Review of Willlard L. King, "Melville Weston Fuller," 49 Mich. L.R. 778, 779 (1951).

80 Oliver Wendell Holmes, Jr., to Judge William L. Putnam, July 12, 1910, in "Judge Putnam's Recollections of Chief Justice Fuller," 22 The Green Bag 526, 529 (Sept. 1910).

81 Richard E. Johnson, "Some Comparative Statistics on U.S. Chief Justice Courts," 9 Rocky Mt. Soc. Sci, J. 89, 93 (1972).

82 Holmes (2nd), Fuller (5th), Harlan (6th), Miller (8th), McKenna (9th), Field (10th), Brewer (12th), Brown (16th). See Blaustein and Mersky, The First One Hundred Justices, supra n. 44, pp. 99, 147-9.

83 Wilson v. Shaw, 208 U.S. 412 (1908).

84 See, e.g., Plumley v. Massachusetts, 155 U.S. 461 (1894).

85 Illinois Central Ry. Co. v. Illinois, 146 U.S. 387 (1897).

86 Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907).

87 (Ed.) Time-Life Books, This Fabulous Century, I, 1900-1910 (New York: Time-Life Books, 1969), p. 141.

88 Charles Fairman, Mr. Justice Miller and the Supreme Court (New York: Russell & Russell, 1939).

89 Charles Henry Butler, A Century at the Bar of the Supreme Court of the United States (New York: G.P. Putnam's Sons, 1942), pp. 74-5.

90 Willard L. King, Melville Weston Fuller, supra n. 5, pp. 161-162. The argument was in Peake v. New Orleans, 132 U.S. 342 (1981).

91 Muller v. Oregon, 208 U.S. 412, 419 (1908).

92 See Chicago, Milwaukee and St. Paul Railway Co. v. Minnesota, 134 U.S. 418 (1890).

93 Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429, 158 U.S. 601 (1895); United States v. E.C. Knight Co., 156 U.S. 1 (1895); In re Debs, 158 U.S. 564 (1895).

94 Allgeyer v. Louisiana, 165 U.S. 78 (1897). c.f. Atkin v. Kansas, 191 U.S. 207 (1903).

95 198 U.S. 45 (1905).

96 Adair v. United States, 208 U.S. 161 (1908).

97 Loewe v. Lawlor, 208 U.S. 274 (1908).

98 Employees Liability Cases, 207 U.S. 63 (1908). See also John E. Semonche, Charting the Future, supra n. 4, pp. 212-4.

99 See, e.g., Williams v. Mississippi, 170 U.S. 213 (1898) and Giles v. Harris, 184 U.S. 475 (1903) (opinion per Holmes, J.).

100 203 U.S. 563 (1906); 214 U.S. 386 (1909); 215 U.S. 580 (1909).

101 Chinese Exclusion Cases; [Chae Chan Ping v. United States], 130 U.S. 581 (1889).

102 Ward v. Race Horse, 163 U.S. 504 (1896).

103 Davis v. Beason, 133 U.S. 33 (1980).

104 In re Lockwood, 154 U.S. 116 (1894).

105 See, e.g., Wong Wing v. United States, 163 U.S. 228 (1896); New York Indians v. United States, 170 U.S. 1, 23 (1898); 173 U.S. 64 (1899); Muller v. Oregon, 208 U.S. 412 (1908).

106 See., e.g., Twining v. New Jersey, 211 U.S. 78 (1908); Maxwell v. Dow, 176 U.S. 581 (1900). c.f. Chicago, Burlington & Quincy R.R. v. Chicago, 166 U.S. 266, 235 (1897).

107 Counselman v. Hitchcock, 142 U.S. 547 (1892).

108 John E. Semonche, Charting the Future, supra n. 4, pp. 51-5.

109 217 U.S. 349 (1910).

110 John E. Semonche, Charting the Future, supra n. 4, pp. 167, 426.

Copyright 1981 by the Supreme Court Historical Society