The Supreme Court Historical Society

Justice Harlan and the Chief Justiceship, 1910

Loren P. Beth

As early as 1904 Republican politicians were looking forward to the vacancy on the Supreme Court that would occur when Chief Justice Melville W. Fuller retired. For varied reasons, both President Theodore Roosevelt and the Secretary of War, William Howard Taft, were "a little ghoulish as (they) pondered the unreasonable longevity" of the Chief Justice.[1] After all, Fuller was 71—old for the times—and his wife had died in August. Taft wrote that her death "leaves the poor Chief Justice a stricken man." He also commented hopefully that Fuller "was getting very tired of cases."[2] The President, for his part, embarked on an undercover campaign to persuade Fuller that it was time to leave. The campaign began two years earlier, in fact, when Taft had declined the nomination to replace Associate Justice George Shiras. While Taft justified his refusal on the very reasonable grounds that he wanted to finish his work as Governor of the Philippines, he made no secret of his ambition to be Chief Justice. It is not unlikely that Roosevelt, who felt himself politically obligated to Taft, supported Taft's ambition. In any case, a "White House story" leaking the nomination of William Rufus Day for the Shiras vacancy, went on to speculate that "the suggestion is made that Chief Justice Fuller may soon wish to retire and that Governor Taft would be a suitable man for the vacancy."[3] Shortly thereafter, Wayne MacVeagh, a close political friend of the President, paid a visit to the Chief Justice at Roosevelt's request. Diplomatically referring to the newspaper story, MacVeagh inquired whether there was any basis for it. Fuller, who had been rather insulted by the whole idea, denied it.[4]

Whether or not Chief Justice Fuller had ever thought of resigning, he certainly was not persuaded by this somewhat clumsy attempt to secure his retirement. He told Justice Oliver Wendell Holmes that he was not about to be "paragraphed" out of his position.[5] Fuller was in good health and performing his duties as capably as ever; Holmes, who would later serve under Taft, subsequently remarked that Fuller was the best Chief Justice under whom he had the pleasure to serve.

Chief Justice Fuller did not resign—then or ever. Taft's interest in the position continued, as did newspaper speculation, especially upon the resignation of Associate Justice Henry Billings Brown in 1906. The Secretary of War's continuing concern for Fuller's health was indeed touching—"if the Chief Justice would retire, how simple everything would become" he wrote to his wife.[6] Roosevelt again offered Taft an Associate Justice position, and again Taft declined. Although holding out for the Chief's position, he eventually became the Republican nominee for President in 1908. He ran and won, entering the White House on March 4, 1909 with Fuller still holding onto the center chair.

As President, Taft continued to feel that Fuller had outstayed his proper time on the Court. One cannot tell with any certainty how serious the President was about this. His much quoted letter to Horace Lurton provided some indication of his concern:

The condition of the Supreme Court is pitiable and yet those old fools hold on with a tenacity that is most discouraging. Really, the Chief Justice (now 76) is almost senile; Harlan (also 76) does no work; Brewer (only 72) is so deaf that he cannot hear and has got beyond the point of the commonest accuracy in writing his opinions; Brewer and Harlan sleep almost through all the arguments. I don't know what can be done. It is most discouraging to the active men on the bench.[7]
One should add in fairness that "the active men on the bench" in 1909 were not necessarily much better. The youngest member of the Court, William H. Moody, was ill and resigned in 1910. Rufus W. Peckham was 71 and also ill. Holmes was a comparative stripling of 68, Edward D. White was 65, Day only 59, and Joseph P. McKenna, 66. The latter had difficulty writing clear opinions and the bulk of the Court's work fell on Holmes, White and Day.

One might also add that Harlan was a close friend of Taft's; they had vacationed together with their families in Quebec since the 1890s. Taft also knew that Harlan was a great friend of Lurton's, and would possibly have been reluctant to criticize Harlan seriously in a letter to a close mutual friend. Then too, Taft was an extremely verbal man, especially in letters, and often seemed to write them in order to get immediate concerns off his chest regardless of whether they represented settled convictions.

There was, however, an obvious element of truth in what Taft wrote. The Court was unusually old, and illness did not help. Even so, there was much exaggeration. There is little or no independent evidence that Fuller was senile or that Harlan was lazy The younger justices—except for Holmes and perhaps White—did not help the Court much. They were mediocre at best even if healthy The names of Day, McKenna, Moody and Peckham do not ring down through American history What Taft should have complained about was the weakness of the Court rather than merely its age.[8]
If President Taft felt that old age was a serious problem, he went about correcting the situation rather strangely His first appointment was in fact Horace Lurton, 66 years old when he replaced Peckham early in 1910. While other appointees were younger than Lurton—Charles Evans Hughes was only 49—they did not noticeably raise the prestige of the Court. Willis Van Devanter, Joseph R. Lamar and Mahlon Pitney were, like their predecessors, at best mediocre. With the exception of Hughes and Holmes it continued to be, on the whole, a weak Court.

This was, in general, the situation when Chief Justice Fuller died at his summer home in Maine in July of 1910. Ironically, Taft now had to appoint someone to the place he had so long coveted for himself and might now never attain. Who would he appoint? The front runner was undoubtedly Hughes; there was also speculation about Holmes, White, Harlan, Senator Elihu Root and Secretary of State Philander C. Knox. Root was 65, Knox only 57. Knox had already turned down two chances to join the bench, having been Roosevelt's second choice each time Taft had refused. Taft did not consider him seriously, despite his original preference for a man who was still relatively young. Root, on the other hand, was apparently considered by the President to be too old. In another of his chatty letters, Taft wrote that "if Mr. Root were five years younger I should not hesitate a moment about whom to make chief justice.., but I doubt if he has in him that length of hard, routine work and constant attention to the business of the court and to the reform of its methods which a chief justice ought to have."[9] An ironic statement, certainly, considering the eventual outcome of Taft's search.
Charles Evans Hughes, who had gained a great reputation as a Progressive Republican while governor of New York, was the junior Associate Justice and a man entitled to think he had a 'right" to the position. Without making a promise Taft had in his typical expansive fashion hinted broadly that Hughes would get the job; in fact, there is some doubt that Hughes would have accepted the post as successor to Justice Brewer had he not expected to be appointed Chief Justice when Fuller left the Court. Taft wrote:

The chief justiceship is soon likely to be vacant and I should never regard the practice of never promoting associate justices as one to be followed. Though, of course, this suggestion is only that by accepting the present position you do not bar yourself from the other, should it fall vacant in my term.[10]
This was about as explicit as one could be without making an actual promise—too explicit in fact. Taft went on to qualify his comments:

Don't misunderstand me as to the chief justice-ship. I mean that if the office were now open, I should offer it to you and it is probable that if it were to become vacant during my term, I should promote you to it; but, of course, conditions change so that it would not be right for me to say by way of promise what I would do in the future.[11]
It is not known the extent to which Hughes relied upon the President's letter. Nor is it known why President Taft changed his mind. Hughes was not yet seated when Chief Justice Fuller died; no bar existed, not even that of custom, to his appointment as the new Chief Justice. As one historian has noted, perhaps Hughes was too young to suit the President: Taft's "appointment of a young man like Hughes to the top spot would probably place the chief justiceship permanently beyond his reach."[12] If the President really still harbored an ambition to become Chief Justice, however, there is no direct evidence of it. Moreover, two other factors mitigated against the appointment of Hughes. One was that Teddy Roosevelt—still the most powerful man in the Republican party and Taft's close friend and advisor—apparently did not like Hughes. Also, the President had perhaps mistakenly asked for the opinions of the Court itself, and the feeling on the Court was that an experienced sitting justice ought to receive the appointment. When Attorney General George W. Wickersham polled the justices personally, he found that Justice White rather than Hughes was their choice.[13]

Although White was 65—the same age as Root—Taft no longer considered age a deciding factor. Age may even have become an asset: perhaps White would only serve long enough as Chief Justice so that the center chair would again become vacant and Taft—no longer President—would still be young enough to be appointed.[14] Some hindsight may be involved in this; however, that is exactly what happened. Partly due to the intervention of Woodrow Wilson's two terms, it may have happened some years later than Taft had hoped. So late, in fact, that Taft accepted the position from President Warren B. Harding in violation of his own earlier feeling about the unfitness of elderly judges as he was then 65, Justice Holmes who had been a very successful Chief Judge of the Supreme Judicial Court of Massachusetts for a decade, was never seriously considered. He wrote to Sir Frederick Pollock that he thought White was the most logical choice aside from Hughes. Harlan was too old, he said, and "I have always assumed absolutely that I should not be regarded as possible—they don't appoint side Judges as a rule, it would be embarrassing to skip my Seniors, and I am too old. I think I would be a better administrator than White, but he would be more politic.”[15]

As to Harlan, a well-known episode has suggested to some historians that the senior Associate Justice may have wanted the job:

Word had reached the White House (from whom, the historians never divulge) that Associate Justice Harlan . . . thought he should receive the elevation as a final ornament to his judicial career. His retirement would soon come.[16]
On hearing this, so the story goes, Taft "exploded."[17] Another writer says he "stormed";[18] while a third uses the more neutral term "responded."[19] Considering Taft's reputation for geniality and his close friendship with Harlan, perhaps responded is a better term. "I'll do no such damned thing; I won't make the position of chief justice a blue ribbon for the final years of any member of the court. I want someone who will co-ordinate the activities of the court and who has a reasonable expectation of serving ten or twenty years on the bench."[20]

Verbiage aside, the President was undoubtedly right. Harlan was too old, as were Holmes, Root and (arguably) White, not to mention Taft himself 12 years later. Until White's appointment as Chief Justice, only one of his predecessors in the center chair had been over 60—Roger Brooke Taney The Chief Justice has a wearing task, perhaps especially so during his first few years, and while experience may be essential, so is energy.

Except for the episode quoted above, there is no real evidence that Justice Harlan ever viewed himself as a competitor of White's for the job, or that he was even interested in it. It is true that the two senior justices—Harlan and White—were not very close. White was a Catholic, a Democrat, and a former Confederate; Harlan was a devout Presbyterian, a Republican, and a Unionist in Kentucky when it was politically risky to be one. They frequently disagreed about the cases before the Court, especially on the interpretation of the Sherman Anti-Trust Act and in the Insular Cases. Yet this line can be carried too far. There is little doubt that Harlan was unhappy to see White become Chief Justice; but this was probably more due to disagreement on the Court than to any personal feelings between the two. Harlan was entirely capable of accepting former Confederates—Lurton, in fact, was a friend of many years' standing despite his record as a Tennessee Confederate officer. The relations between the Louisianan and the Kentucky colonel were, if not close, at least correct, as a rather charming newspaper story indicates:

Chief Justice White and Justice Harlan are widely known for pedestrianship. They enjoy the exercise, but Justice Harlan finds automobiles disquieting and has grown to dislike them with a fervor not inferior to that manifested by Senator Bailey and Champ Clark . . . The two jurists recently started up Pennsylvania Avenue on their way home. When crossing a side street an automobile came hizzing around a corner and Justice Harlan was saved from possible injury by Justice White, who dragged him out of harm's way.[21]
Even if White did not actually save Harlan's life, they were apparently close enough to enjoy a walk home together.
From whom did Taft get the idea that his old friend from Kentucky was eager to become Chief Justice? Almost certainly it did not come from Harlan himself, or with Harlan's knowledge or consent. There was a letter to Taft from a George Dorsey, of Fremont, Nebraska and an editorial in the Salt Lake Tribune—copies of these were sent to Harlan, but he had nothing to do with their writing.[22] Perhaps Justice Lurton, who was a mutual friend of the President and of Harlan dating back to Circuit Court days, interceded in the Kentuckian's behalf. He wrote Harlan that "it looks like Hughes for Chief though I only know from press reports. Occasionally I am gratified to see your name." Continuing, he added, "this would be a most graceful compliment well-bestowed and gratifying to me as your friend."[23] It is not known what Harlan thought of this; his reply is noncommittal: "The mention of my name in connection with the place has been without my knowledge or procurement. I do not suppose that I will be thought of."[24]

This would seem to indicate that Justice Harlan was well aware that he did not have much of a chance for the place; it stops considerably short, however, of proving that he didn't want it. His other remarks on the subject bear out these points, but go a little farther toward personal renunciation of ambition. In one letter he merely repeated the substance of his comment to Lurton: ". . . in view of my advanced years—if there were no other reason — the President will not think of me as Chief Justice. I do not know to what extent my name has been mentioned. Certain it is, I have not moved in the matter nor will I do so."[25] Even earlier, in a letter to Justice Day, Harlan commented that some friends in Louisville had supported his appointment; he continued:

I wrote to them to forbear any action in my behalf and I think they are conforming to my request. Of course, the President will never think of me in connection with this matter. My years forbid his consideration of my name, even if he had no other objections. Who will be appointed no one can guess. I do not think Hughes's chances are as good as they would have been had he not been appointed an Associate Justice, I now doubt whether the President has made up his mind finally on the subject.[26]
Perhaps the most convincing evidence that Harlan did not expect the appointment to fall his way, however, is the fact that he himself supported another candidate. In a letter to the President, he urged Taft to appoint Justice Day.[27] Justice Day, upon receipt of a copy of the above letter, disclaimed any such ambition, writing to Harlan that, "I am not vain enough to think that the President will seriously think of me in connection with the office of Chief Justice but I will not deny that your opinion of me in this connection has been pleasant reading."[28]

Coming when it did only a week after Fuller's death, Harlan's letter perhaps accomplished several things other than its ostensible purpose. Taft never apparently considered Day as a serious possibility But the letter suggested the utility of appointing an Associate Justice with experience as to the Court's operations. Harlan may, in fact, have been the first person to suggest this to the President. It was a congenial suggestion: the Court was at the time composed of four relative newcomers and had only four experienced judges. This made strong leadership from the Chief's position more important than it might otherwise have been. Taft also felt that White's record was what he himself would have had.[29]
Taft did not, of course, appoint Justice Day to the vacancy But, he apparently agreed with Harlan that an Associate Justice would be a good idea, even though his reply to Harlan was noncommittal:[30]

I have your letter of July 11th, with respect to the Chief Justiceship, and I shall give it the full consideration that advice coming from such a source is entitled to. Moody is going to retire, so that I shall have the appointment of a Chief Justice and an Associate Justice, in addition to those already made. I shall keep your letter in order to give it full weight when the time for final decision comes
Harlan may have wished to become Chief Justice, and more certainly, he probably would have preferred someone other than Justice White. There is no evidences however, that he ever expected to be appointed, or that his personal feelings about Justice White affected his performance on the Court after White's elevation. Justice Hughes observed that "Harlan concealed whatever disappointment he felt in not being made Chief Justice (or, perhaps, in White's elevation) and continued his work through the 1910 term with but little apparent abatement in his vigor."[31] Had Justice Harlan received the appointment, his tenure would have been a short one—he died at the age of 78 on October 14, 1911, just ten months after White's confirmation as Chief Justice.

Endnotes

1. Henry F. Pringle, The Life and Times of William Howard Taft. New York: Farrar and Rinehart, 1939. Vol. I, p. 264.

2. Ibid., p. 265.

3. Willard L. King, Melville Fuller, Chief Justice of the United States, 1888-1910. Chicago: University of Chicago Press, 1950, p. 303.

4. Ibid.

5. Ibid.

6. Taft to Mrs. Taft, July 10, 1905, as quoted in Pringle, p. 311.

7. Taft to Lurton, May 22, 1909, as quoted in Pringle, p. 311.

8. In the 1909 session neither Peckham nor Moody wrote any opinion for the Court. Brewer wrote only 12, Fuller and Harlan 18 each. This left McKenna with 24, White with 25, Day with 27 and Holmes with 34. Lurton, who replaced Peckham midway through the term, nevertheless wrote 19 opinions.

9. Taft to Chauncey M. Depew, Oct. 15, 1910, as quoted in Pringle, p. 534.

10. Taft to Hughes, April 22, 1910, as quoted in Pringle, p. 532.

11. Ibid.

12. John E. Semonche, Charting the Future: The Supreme Court Responds to a Changing Society, 1890-1920. Westport, Conn., Greenwood Press. 1978. p. 248. (Hereafter cited as Semonche.)

13. Pringle, pp. 434-535.

14. Semonche, p. 248.

15. Holmes to Sir Frederick Pollock, Sept. 24, 1910, in Mark DeWolfe Howe (ed.) Holmes-Pollock Letters, 2 vols., Cambridge: Harvard University Press, 1941, Vol. I, p. 170.

16. Pringle, p. 534.

17. Ibid.

18. Alpheus Thomas Mason, William Howard Taft, Chief Justice, New York: Simon and Schuster, 1964, p. 35.

19. Semonche, p. 248.

20. Pringle, p. 534.

21. Chicago Inter-Ocean, Dec. 29, 1910.

22. Harlan papers, University of Louisville, undated.

23. Lurton to Harlan, Sept. 8, 1910, Harlan papers.

24. Harlan to Lurton, Sept. 12, 1910, Harlan papers.

25. Harlan to H.B.F. Macfarland, Aug. 5, 1910. Harlan papers.

26. Harlan to Day, July 22, 1910, Harlan papers.

27. Harlan to Taft, July 11, 1910. Harlan papers.

28. Day to Harlan, July 25, 1910, Harlan papers.

29. Robert B. Highssaw, Edward Douglass White, Defender of the Conservative Faith. Baton Rouge, Louisiana: Louisiana State University Press, 1981, pp. 57-59.

30. Taft to Harlan, July 13, 1910. Taft papers, Library of Congress.

31. Daniel J. Danelski and J. S. Tulchin (eds.) The Autobiographical Notes of Charles Evans Hughes. Cambridge, Harvard University Press, 1972, p. 169.