by Peter Irons
With this political background and legal ideology, it is hardly surprising that Peckham seized the chance in the Lochner case to strike down a law that offended his laissez-faire principles. He wrote for a bare majority of five justices, but his opinion made few concessions to the dissenters. He began on an uncompromising note: “The statute necessarily interferes with the right of contract between the employer and employees” in New York’s bakeries. Peckham, cited his own Allgeyer opinion for authority that the right to make contracts “is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution.” He noted in disparaging words that the Court had relied on what are “somewhat vaguely termed police powers” in cases such as Holden v. Hardy, but added that the Utah law regulating the working hours of underground miners had included an “emergency clause” that allowed longer hours “where life or property is in imminent danger.” New York’s law had no such provision. “There is nothing in Holden v. Hardy which covers the case now before us,” Peckham concluded. Why the emergency clause made a difference he left for conjecture.
Peckham rejected the state’s “police powers” arguments in his Lochner opinion. Claims that the law protected bakers from the unilateral power of employers to set labor terms “may be dismissed in a few words,” he wrote. Peckham responded to Mayor’s ill-advised suggestion that bakers needed protection from their own ignorance with ill-concealed disdain. “There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades,” he wrote. “They are in no sense wards of the State.” Peckham used a few more words in dismissing the state’s “health” claim, but he made no reference to medical evidence, since Mayer had offered none in his brief. This did not deter Peckham from taking off his black robe and donning a doctor’s white coat. “To the common understanding the trade of a baker has never been regarded as an unhealthy one,” he stated, adding with obvious sarcasm that doctors would probably not prescribe working in bakeries “as a remedy for ill health.” Peckham professed no doubt that “the limit of the police power has been reached and passed in this case.”
The majority opinion could have ended with these words. But the conservative justices felt the need to conjure up the specter of socialism. “It is impossible for us to shut our eyes to the fact that many of the laws of this character, while passed under what is claimed to be the police power for the purpose of protecting the public health or welfare, are, in reality, passed from other motives,” Peckham wrote. He looked beyond the “proclaimed purpose” of the New York law and found it was “not really a health law” at all but one designed to interfere with “the freedom of master and employee to contract with each other” on equal terms. Courts must uphold “the right of free contract and the right to purchase and sell labor” without state regulation, Peckham concluded. Four justices found this expression of laissez-faire principles too extreme, and Peckham’s opinion drew separate dissents by John Marshall Harlan and Oliver Wendell Holmes. Joined by Edward White and William Day, Harlan wrote a lengthy rebuttal that cited more than a dozen earlier decisions for precedent. The “police powers” arguments that Peckham had “dismissed in a few words” provided Harlan ample grounds for upholding the New York law. He found “no room for dispute” that no law could “be disregarded or held invalid unless it be, beyond question, plainly and palpably in excess of legislative power.” The justices should presume that laws are constitutional and “keep their hands off, leaving the legislature to meet the responsibility for unwise legislation.” Harlan considered it “plain” that the law was designed to “protect the physical well-being” of bakers, who were “not upon an equal footing” with their employers and were “often compelled” to work long hours that “unduly taxed their strength.” Harlan sounded the call of judicial restraint: “Whether or not this he wise legislation it is not the province of the court to inquire.”
Harlan made his case in dry legal prose, looking to precedent and grounding his arguments on well-established principles. His opinion bested Peckham’s in craft and consistency. But it lacked the rhetorical polish of Holmes’s two-page dissent, which stated the case for judicial restraint with literary flair. “This case is decided upon an economic theory which a large part of the country does not entertain,” Holmes wrote of laissez-faire doctrine. “But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez-faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.”
Holmes sprinkled his Lochner dissent with the pithy aphorisms he delighted in crafting. “Every opinion tends to become a law,” he wrote. “General propositions do not decide concrete cases,” he added. These two brief sentences compressed the ideas that Harlan had developed over ten pages. New York’s lawmakers had put their opinions on bakers’ working hours into law, and laissez-faire doctrines should not displace their considered judgment, whether judges concurred or not. “I strongly believe,” Holmes asserted, “that my agreement or disagreement has nothing to do with the right of a majority to embody their opinion in law.” He skewered Peckham with one pointed sentence: “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.”
However persuasive his dissent now appears, Holmes was on the losing side in the Lochner case. But the seeming victory for “liberty of contract” did not dissuade state and federal lawmakers from passing laws to protect women and children from economic exploitation. One such law came before the Court in 1908, in a case that challenged an Oregon statute that limited the working hours of women in laundries to ten per day. Curt Muller, who owned the Lace House Laundry in Portland, Oregon, had been charged by the county attorney with “the crime of requiring a female to work in a laundry more than ten hours” on September 4, 1905, “against the peace and dignity of the State of Oregon.” On its face, the law seemed vulnerable to legal challenge, since it clearly interfered with the freedom “to purchase and sell labor” that Justice Peckham had proclaimed in his Lochner opinion.
The case of Muller v. Oregon became famous (at least among legal scholars) because of the unusual brief filed by Louis Brandeis, the Boston lawyer who argued for Oregon in the Supreme Court. Widely known as “the people’s lawyer” for challenging the power of railroads, banks, and insurance companies, Brandeis joined the Muller case at the invitation of the National Consumers League, which lobbied for legislation to protect working women. Oregon’s attorney general turned his case over to Brandeis, who buried himself in the Boston Public Library and emerged with a brief that included just two pages of legal argument, followed by 113 pages of excerpts from medical and sociological reports that documented the damaging effect of long hours on the health of women workers. This was the famous “Brandeis brief,” emulated by lawyers in many later cases to seek “judicial notice” of social and statistical data that did not appear in the case record.
Confronted with the hard data of the “Brandeis brief” in Curt Muller’s appeal to the Supreme Court, his lawyers fell back on appeals to the spirit of Sir Walter Raleigh. “For reasons of chivalry,” they argued, “we may regret, that all women may not be sheltered in happy homes, free from the exacting demands upon them” to support their families. But those women who ventured from their homes into the workplace, argued Muller’s lawyers, should not be sheltered from the hard bargaining over hours and wages that men hammered out with their bosses.
he Court’s unanimous opinion in the Muller case reflected the marriage of sociology and chivalry. Justice David Brewer, who had joined the Lochner majority three years earlier, first noted the “very copious” brief filed by Louis Brandeis. Brewer was impressed by “extracts from over ninety rep
orts” which agreed that “long hours of labor are dangerous to women, primarily because of their special physical organization.” Although he cited Lochner for the “right to contract” over working hours, Brewer turned to biology on this issue. The “burdens of motherhood,” he wrote, have “injurious effects upon the body, and as healthy mothers are essential to vigorous offspring, the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race.” Justice Peckham had written in Lochner that the five justices in the majority would not “shut our eyes” to the political motives behind New York’s ten-hour law for bakers. Writing for every justice in his Muller opinion, Justice Brewer found it “impossible to close one’s eyes to the fact” that “woman has always been dependent upon man” and that her “physical structure and a proper discharge of her maternal functions—having in view not merely her own health, but the well-being of the race—justify legislation to protect her from the greed as well as the passion of man.”
Although women workers scored a victory in Muller, the Court threw up judicial barricades against the organizing efforts of labor unions in two other cases decided in 1908. The Court ruled in Lœwe v. Lawlor that union boycotts of nonunion products—in this case, felt hats—constituted “restraints of trade” and violated the Sherman Antitrust Act. A second decision in Adair v. United States struck down a federal law prohibiting railroads from imposing “yellow-dog” contracts on their workers, subjecting them to dismissal if they joined a union, (supposedly, a railroad boss told a worker, “I’d rather hire a yellow dog than a union member”).
Labor not only lost in the Court in 1908, it lost at the polls as well. William Howard Taft of Ohio led the Republicans to victory over William Jennings Bryan, who suffered his third and final presidential defeat. Taft’s election did more than place a pro-business conservative in the White House; it also allowed the new president to solidify conservative control of the Supreme Court. During his single term in office, Taft named six justices, more than any president since Washington. His first nominee, Horace Lurton of Tennessee, replaced Rufus Peckham—author of the Lochner opinion—in 1909; a former Confederate soldier and Democrat, Lurton served just four years and left no mark on constitutional law. The following year, Taft chose two justices, replacing David Brewer and Chief Justice Melville Fuller, who died just three months apart in 1910. Taft selected Charles Evans Hughes of New York for Brewer’s seat. Born in 1862—his life spanned the period from the Civil War to World War II—Hughes gained wealth and power as a Wall Street lawyer and served as Republican governor of New York before Taft offered him a Supreme Court nomination. Political factors clearly influenced this choice, since Taft viewed Hughes as a potential rival for a second term in 1912; Taft won the nomination but lost the election to Woodrow Wilson. During his service on the Court, over a period of thirty-one years, Hughes shifted his judicial position from conservative to liberal, following public opinion on the bench as he had courted voters at the polls. He was pragmatic above all, balancing his devotion to property rights with recognition of public needs. “The Constitution,” Hughes once said, “is what the judges say it is,” echoing the view of Oliver Wendell Holmes that judicial interpretation of constitutional provisions reflects “the felt necessities of the times,” as the courts respond to social change.
The death of Chief Justice Fuller gave President Taft a third seat to fill. He followed the pragmatic Hughes with a dogmatic conservative, elevating Justice Edward D. White to the Court’s leadership. One biographer suggested that Taft, with a burning ambition to become Chief Justice, chose the sixty-five-year-old White in hopes of a brief tenure, with himself as successor. That is, in fact, what happened in 1921, although no evidence of such Machiavellian plotting exists. At any rate, White’s eleven years as Chief were marked by his consistent support of corporate power; his invention of the “rule of reason” to undermine the government’s antitrust powers led Holmes to lament: “How could you be against that without being for a rule of unreason?”
Taft’s selection of White as Chief Justice opened another seat, which he filled with Willis Van Devanter of Wyoming, who then served as a federal circuit judge after heading his state’s high court. A brief stint in the Interior Department, handling public lands and Indian affairs, had gained him a reputation as a pro-government progressive and impressed Theodore Roosevelt, who placed Van Devanter on the federal bench. Taft chose him largely to fill a “western seat” on the Court and to satisfy Republicans who grumbled that two of the president’s three nominees—Lurton and White—were Democrats. (House speaker Joseph Cannon joked: “If Taft were Pope, he’d want to appoint some Protestants to the College of Cardinals.”) Van Devanter’s supposed progressivism quickly vanished; during twenty-seven years on the Court, he voted so consistently against governmental power that Justice Harlan Fiske Stone dubbed him “Commander in Chief of Judicial Reaction.”
The resignation of Justice William Moody in 1910 gave Taft his fourth nomination in one year; perhaps to spite Speaker Cannon (with whom he often feuded), he chose another southern Democrat, Joseph R. Lamar. A former Georgia legislator and judge, Lamar served for just five years before his death in 1916, consistently voting with the conservative majority and writing no opinions of any importance. Taft filled one last seat when John Marshall Harlan died in 1911 after thirty-four years of distinguished service. His replacement, Mahlon Pitney of New Jersey, was a former state judge and two-term congressman whose service over ten years proved thoroughly undistinguished and reactionary. Taft regretted this appointment; after he became Chief Justice, he publicly called Pitney a “weak member” of the Court and said he would “not assign cases” to him.
It seems odd that four of Taft’s six Court nominees were lackluster justices; scholars have ranked Hughes as “great” and White as “near great,” the latter a judgment more on his role as Chief Justice than on his jurisprudence. Perhaps Taft looked for men he could dominate as Chief Justice, a job he wanted much more than the presidency and expected to achieve. Perhaps he simply could not assess judicial quality; Louis Brandeis said that Taft had “a first-rate second-rate mind.” It also seems odd that Taft, a partisan Republican, chose three Democrats. But they were all conservative southerners, and Taft had better relations with southern Democrats in Congress than with his own party’s “progressives.” All in all, few presidents used their power to shape the Court as poorly as Taft.
Woodrow Wilson took office in 1913 as the first Democratic president in sixteen years, after serving as New Jersey’s governor and president of Princeton University. He won election with just 42 percent of the popular vote, the lowest margin since Lincoln’s first victory in 1860. Wilson benefited from a split in Republican ranks, with Theodore Roosevelt taking his “Bull Moose” faction into the Progressive Party and William Howard Taft leading the GOP’s conservative loyalists to a third-place finish; Eugene Debs won almost a million votes for the Socialists, whose party elected a Milwaukee congressman, ten New York legislators, and seventy-three mayors that year. The conservative press warned of “the rising tide of socialism,” while the Wilson administration moved to placate business leaders with promises to relax antitrust enforcement.
Although he served two presidential terms, Wilson had only three chances to affect the Supreme Court, largely because Taft had recently filled six seats. His first nomination, to replace Horace Lurton in 1914, went to James C. McReynolds of Tennessee, who served Wilson as attorney general and—like Willis Van Devanter—had gained a “progressive” reputation as a Justice Department “trust-buster” under Theodore Roosevelt. Wilson made a serious mistake; McReynolds turned out to be a judicial reactionary, with a violent temper and a vicious streak of anti-Semitism. He refused for several years to speak with Justice Louis Brandeis and pointedly read a newspaper when Justice Benjamin Cardozo took the oath of office in 1932. As a member of the “Four Horsemen of Reaction” during the New Deal y
ears, McReynolds became “their loudest, most cantankerous, sarcastic, aggressive, intemperate, and reactionary representative,” one biographer wrote before running out of adjectives.
Wilson redeemed himself in 1916 with the nomination of Louis Brandeis to replace Joseph Lamar, following his selection of a reactionary anti-Semite with a Jewish progressive. Brandeis was never faulted for his legal skills, which dazzled both friends and foes, but his fame as “the people’s lawyer” prompted some critics to call him a dangerous radical. This was a label that did not fit; Brandeis wanted to reform capitalism, not abolish it, and he opposed “bigness” in both industry and government. Nonetheless, his nomination set off a loud and lengthy partisan battle that lasted more than four months. Leading the opposition to the slight, soft-spoken Brandeis was William Howard Taft, gargantuan in bulk (more than three hundred pounds) and bombastic in speech. Taft wanted the post for himself, but he would accept any seat, hoping for later elevation. Wilson would never have chosen his political foe, but the nomination of Brandeis inflicted “one of the deepest wounds” he suffered “as an American and a lover of the Constitution,” Taft lamented to a friend. He urged Republican senators to reject Brandeis, telling Henry Cabot Lodge his nomination “is an evil and a disgrace that ought to be avoided.”
Taft was one of six former American Bar Association presidents who signed a letter to the Senate: “The undersigned feel under the painful duty to say to you in their opinion, taking into view the reputation, character and professional career of Mr. Louis D. Brandeis, he is not a fit person to be a member of the Supreme Court of the United States.” (However, eleven former ABA presidents did not sign this letter.) When the Senate debate ended on June 1, 1916, Brandeis won confirmation by a vote of forty-seven to twenty-two; just three Republicans and one Democrat crossed party lines. Brandeis joined his old friend Oliver Wendell Holmes on the bench. The two men differed greatly in temperament and sentiment: the Boston Brahmin distrusted the people but let them have their way; the Jewish reformer placed his trust in the people and let them have their way. Travelling different paths, they met at the same point and voted together—often in dissent—in most cases during the sixteen years they served together.
