MY UNCLE THE CHIEF JUSTICE - Edward D. White in Personal Retrospect

NEWMAN CARTER

(As Told to Editorial Staff)

(EDITOR'S NOTE: The unique feature of the YEARBOOK–personal reminiscences of children or other descendants of former members of the Court–will eventually run out of descendants or of Chief Justices. In the case of Edward D. White, who had no children in any case, the Editorial staff was fortunate to find the principal author of the present piece, who is a native of Washington and a great-nephew of the Chief Justice and former Associate Justice. Since the jurist had already died before the narrator was born, the personal recollections are essentially through the eyes of Mrs. Leah White, the widow of the Chief Justice, as passed on to Mr. Carter.)

Edward Douglass White was a Democrat, an ex-Confederate and a Roman Catholic. He was appointed Chief Justice by a Republican President who was a Northerner and a Unitarian. Of course, White had come onto the Court as an Associate Justice, nominated by a Democratic President (Grover Cleveland in 1894) seventeen years before he became the first Associate to be elevated to Chief,* but that had been something of an accident–more about that later.

There were other unique features about the career of "Ned" White, as his boyhood associates and family in Louisiana called him. Although Senate majority leader at the time he was nominated for the Court, he maintained close personal relationships with the orthodox Republican President Taft, the "maverick" Republican President Theodore Roosevelt, and the "New Freedom" Democrat, Woodrow Wilson. He was one of the few Justices, for whom such records have come to light, who married after he came onto the bench–Mrs. Leah Montgomery Kent, the great-aunt through whom much of this information has come down.

While he is not the only member of the Court whose childhood home has become a state historic site, the Edward Douglass White State Commemorative Area in Louisiana's Bayou La Fourche is certainly one of the most picturesque. The white frame house of pegged cypress boards, set on high brick foundations with wide porches on front and back, was typical of the homes of prosperous planters of the pre-Civil War era. Among associations of the jurist is his personal carriage, or "tallyho," which is kept on the grounds. Nearby is a giant oak believed to be between five and six centuries in age, and other lush vegetation embellishes the 5.6 acres of the site.

Education and public office were two dominant themes of the three generations of Whites in America, following the migration of James White I from Ireland to Pennsylvania in 1704. His son, James White II, earned a degree of "doctor of physick" from a French university but later abandoned medicine for law. The grandson, the first Edward Douglass White, set an example which his son followed–and surpassed: practicing attorney, jurist, governor of Louisiana and member of Congress. For Edward D. White II, it was thus virtually a family tradition that the best of education–in this case, Mount St. Mary's in Emmetsburg, Md. and Georgetown University Law School–

should be followed by a career in law and politics. Upon the outbreak of the Civil War, "Ned" at the age of sixteen enlisted in the Confederate Army; two years later he was taken prisoner and paroled. He returned home and began reading for the bar under Edward Bermudez, a future chief justice of the state. In 1868, at the age of twenty-three, Edward D. White II was admitted to practice.

The political adventures of the future jurist began soon afterward, in a short quasi-military skirmish over the question of who should be installed as the lawful governor of the state after the end of Reconstruction. Although the effort to install the Democratic governor-elect by force was repulsed by the Federal troops, White himself was elected to the state senate. In 1879, when the Democrats were fully established in state power, he was appointed to the state supreme court, a position he held only briefly before resuming full-time law practice.

Election to the United States Senate was the turning point in White's public career; henceforth, for the rest of his life, he was to remain in public service. His speedy elevation to the Supreme Court, only four years after his coming to the Senate, was something of a political accident. Grover Cleveland, who had become the only President to be elected for a second term after having been defeated for reelection the first time, had made many enemies within his own New York state political organization on his comeback. Now, when he attempted to fill a Supreme Court vacancy with a New York appointment, he ran into the bitter opposition of Senator David Hill of that state.

Hill relied on the time-honored Senate tradition of "collegial courtesy" to declare the President's nominee, William B. Horn-blower, "personally obnoxious" to him– whereupon his colleagues rejected the nomination. They did the same with Cleveland's next New York candidate, Wheeler B. Peck-ham. Seeing that he would get nowhere with any more nominees from New York, Cleveland then turned the tables on Hill, by nominating a Senate colleague–the Louisiana Confederate, Edward D. White. Now "collegial courtesy" worked the other way, with one party member of the "club" not caring to arouse the resentment of another, or of the now resurgent Democratic organization from the Old South. Hill offered no objection to White's nomination, and it passed unanimously.

Whether or not White became a member of the Supreme Court by political accident, he would remain for a quarter of a century, contributing one of the cardinal principles of construction of the new regulatory legislation which was ushering in the new century. Antitrust legislation had begun with the Sherman Act of 1890, and would later be extended by the amendatory Clayton Act of 1913. "Teddy" Roosevelt, the "Rough Rider," had made much of his "big stick" and his trust-busting policies; but it was actually White's close personal friend, Taft, who completed many of the prosecutions begun in Roosevelt's administration.

Two companion anti-trust cases–United States v. American Tobacco Co. and Standard Oil Co. v. United States–in 1911 and 1912 reached final disposition before the Court after White had become Chief Justice. He wrote the opinion of the Court in both of these cases; in effect, the government's efforts to break the old-fashioned Standard Oil trust was sustained, but White insisted that division of an efficient corporation was preferable to its total dissolution. In a passage which would become a standard of construction of anti-trust law thereafter, the Chief Justice declared that an unqualified, automatic application of the law to destroy combinations of business would be destructive in itself. It was conspiratorial combinations in restraint of trade, not combinations of effective business units in the interests of greater efficiency and productivity, which White's famous "rule of reason"–endorsed by such a monumental judicial intellect as that of Justice Oliver Wendell Holmes–made a rule of twentieth century constitutional law.

Edward Douglass White II was a unique figure on the Supreme Court, a jurist schooled in both the English common law traditions and the French civil law of Louisiana. With Theodore Roosevelt he saw the inevitability of change in the political economy of the new century, but with William Howard Taft he was convinced that change should some slowly. How slowly, White did not have to determine; Taft, who succeeded him as Chief Justice, would have to face that decision in the challenge of the economic collapse of 1929.