A People's History of the Supreme Court

by Peter Irons

  Almost overlooked by historians, John H. Clarke of Ohio joined the Court four months after Brandeis, replacing Charles Evans Hughes, who resigned in June 1916 to seek the Republican presidential nomination. The Senate confirmed Clarke, a former corporate lawyer and federal judge, without dissent (over the objection of the still-smarting William Howard Taft). During six years of service, Clarke compiled a more “progressive” record than Brandeis, who recommended him to Wilson. He was a firm supporter of labor and women, and his votes prompted Taft (after he finally became Chief Justice) to complain that Clarke approached cases “as he would vote on it in the Senate or the House, rather than to decide as a judge.” Coming from Taft, this comment smacked of hypocrisy. Clarke became disillusioned with the Court—Taft undoubtedly contributed to this feeling—and resigned in 1922; he lived until 1945 and devoted the rest of his life to the cause of world peace.

  The justices named by Presidents Taft and Wilson constituted a majority when the Court confronted in 1923 a choice between the “freedom of contract” rule established in the Lochner decision and the “chivalrous” exception for women workers in the Muller case. Members of the “weaker sex” had flexed their political muscles and won the right to vote in 1920, with ratification of the Nineteenth Amendment. Would the justices continue to lay their robes before women? The answer came in a case that involved the minimum wage board of the District of Columbia, over which Congress exercised legislative control. The board set a minimum wage for women of $71.50 per month, based on detailed studies of prices for food, housing, clothing, and a dozen other budget items, including “religion” and entertainment.

  The board’s findings and figures were challenged in two suits, one filed by the Children’s Hospital and the other by Willie Lyons; the defendant in both cases was Jesse Adkins, chairman of the minimum wage board. The Children’s Hospital claimed it could not afford to pay its female housekeepers the wage set by the board. Willie Lyons, employed by the Congress Hall Hotel as an elevator operator for $35 per month and two meals a day, alleged in her suit that “the work was light and healthful, the hours short, with surroundings clean and moral, and that she was anxious to continue it for the compensation she was receiving and that she did not earn more.” One might wonder why Willie Lyons would challenge a law that would more than double her meager wage. Her lawyers denied the board’s claim that she had been “induced to bring this action against her own interest.” They argued that women “want, and they deserve, equal rights with men. They believe in self-reliance, independence and character. And they believe that the right to make their own bargains will result ultimately in better pay, a finer sense of self-respect and a higher quality of citizenship.” One might wonder if Willie Lyons ever read these words in her lawyers’ brief. But her name did not appear in the Washington Post or any other publication, and she became one of the many “forgotten” litigants whose. names are now relegated to footnotes in history books.

  The National Consumers League, which in 1908 enlisted a future Supreme Court justice, Louis Brandeis, to brief the successful Muller case, turned to another future justice, Harvard law professor Felix Frankfurter, to brief the case of Adkins v. Hospital. Frankfurter produced another “Brandeis brief,” which offered the Court voluminous data on the economic plight of working women. Five justices voted to strike down the minimum wage law. (Brandeis, who joined the Court in 1916, did not vote in Adkins because of his former ties to the Consumers League.) Justice George Sutherland, named to the Supreme Court in 1922 by President Warren Harding, wrote for the court in Adkins. He dismissed the Muller decision as precedent and returned to Lochner for authority. Sutherland made no reference in his opinion to the burdens of “motherhood” on women workers, arguing instead that legal and political differences between the sexes “have now come almost, if not quite, to the vanishing point.” He pointed for support to the Nineteenth Amendment, ratified three years earlier in 1920, which extended voting rights to women. This “revolutionary” change in women’s legal status convinced Sutherland they held the same rights to “liberty of contract” enjoyed by men. The “liberty” women enjoyed on an equal basis with men included, of course, freedom from minimum wage laws.

  Sutherland’s opinion was so reactionary that even Chief Justice William Howard Taft felt compelled to dissent. Echoing the appeals of Holmes and Harlan for judicial restraint, Taft argued that “it is not the function of the Court to hold congressional acts invalid simply because they are passed to carry out economic views which the Court believes to be unwise or unsound.” Holmes also replied to Sutherland with thinly veiled scorn in a brief dissent. He first traced the path of judicial interpretation of “liberty” under the Fourteenth Amendment from “an unpretentious assertion of the liberty to follow the ordinary callings . . . into the dogma, Liberty of Contract.” The former Harvard law professor gave Sutherland a lesson in first-year law. “Contract is not specially mentioned in the text that we have to construe,” he wrote. “It is merely an example of doing what you want to do, embodied in the word liberty. But pretty much all law consists in forbidding men to do some things that they want to do, and contract is no more exempt from law than other acts.” Holmes pointed Sutherland to some fifteen cases upholding economic regulations, from insurance rates to the “size of a loaf of bread.” He could not understand why the majority did not follow the Muller decision, which he called “as good law today as it was in 1908.” The obvious reason, which Holmes left unstated, was that only he and Justice McKenna (who had joined the unanimous opinion in Muller but switched sides in the Adkins case) remained from the Court that decided Muller in 1908. Four of the new justices—George Sutherland, Pierce Butler, Willis Van Devanter, and James McReynolds—who voted against the minimum wage law in Adkins were fiercely committed to laissez-faire doctrine. These four judicial reactionaries were later dubbed the “Four Horsemen of Reaction” for voting as a bloc in the 1930s against state and federal laws designed to rescue the American people from the ravages of the Great Depression. But the Four Horsemen first joined ranks to battle progressive legislation in the Adkins case, a decade before they led the charge on New Deal programs.

  21

  “Falsely Shouting Fire in a Theatre”

  The overriding issue during the presidential election of 1916—in which Woodrow Wilson sought a second term—was the war in Europe, which began in 1914 and quickly spread across the continent. Campaigning on a dual platform of diplomatic “neutrality” and military “preparedness,” Wilson won reelection by just twenty-three electoral votes (and 3 percent of the popular vote) over Charles Evans Hughes, who found it hard to attack the president. When German submarines attacked American shipping in the Atlantic. Congress declared war on Germany in April 1917. No shocking event like the Japanese bombing of Pearl Harbor in 1941 precipitated this momentous decision; historian Richard Hofstadter called Wilson’s appeal to Congress “rationalization of the flimsiest sort.” But when the roll was called, six senators and fifty representatives stood up and voted against war.

  Most Americans have forgotten—or never learned—that World War I was not a popular war, as the second clearly was. Few Americans had any desire to “pull England’s chestnuts” out of the fire that raged in Europe. The bloody warfare between British and French soldiers on one side and Germans on the other—opponents whose trenches were often just yards apart—cost the lives of several million young men. Each side suffered 500,000 casualties in the First Battle of the Marne; almost 600,000 British and French soldiers were killed or wounded in the Battle of Verdun; and the Third Battle of Ypres cost the British 250,000 lives. In terms of battlefield deaths, this was the bloodiest war in history. Before the mortars and machine guns fell silent, ten million men had died on the battlefield and another twenty million people, many of them women and children, had perished from hunger and disease.

  The Supreme Court heeded the call of patriotism and enlisted in the “War to End All W
ars.” In a symbolic but very real sense, the justices hung up their black robes and donned the khaki uniforms of American soldiers. Only two justices—Oliver Wendell Holmes and Chief Justice Edward White—had served during wartime, on opposite sides in the Civil War. All but one justice was over sixty in 1917, but they displayed as much martial spirit as the most eager young volunteer. Unable to face German troops in combat, they fought the Kaiser from the Court’s bench.

  Many in United States had good reason to resist appeals to support the king of England in his territorial squabbles with the German Kaiser. Some based their reluctance on ethnic ties. Among three million Americans of German ancestry, many supported their country of origin; an equal number of Irish descent held even more hostility to the king as their countrymen struggled for independence and staged the abortive “Easter uprising” in 1916. Others based their objections to warfare on religious grounds; members of “peace churches” such as the Quakers, Mennonites, and Brethren refused military service as pacifists. Another large group, led by the Socialist Party, denounced the war as a conflict between rival capitalist nations whose leaders considered working people “cannon fodder” for their “imperialist” designs. Between these disparate groups, resistance to American involvement in the European war (hard to measure before the time of opinion polls) approached and perhaps exceeded the heights—or depths—of the Vietnam War period.

  One fact about the government’s policy toward the “Great War” is clear: once the Wilson administration decided to enter the conflict, it viewed all opposition as “seditious” and even treasonous. Early in 1917, one of Wilson’s closest advisers, Elihu Root—a former war secretary and Wall Street lawyer—laid down the law: “We must have no criticism now.” A few months later, upset that his words had not been heeded, Root warned that “there are men walking around the streets . . . tonight who ought to be taken out at sunrise tomorrow and shot for treason.”

  The Wilson administration initiated a “private” campaign against its critics that encouraged Americans to spy on their neighbors and fellow workers. The Justice Department sponsored the American Protective League, which by June 1917 had units in six hundred cities and towns and claimed a membership of almost 100,000 “patriotic” citizens. Ignoring the constraints of the Constitution, league members rifled through the mail of suspected “disloyals,” infiltrated private meetings, and recorded speeches at public gatherings. The government’s volunteer spies viewed any criticism of the war effort as a criminal offense. The APL claimed to have uncovered three million cases of disloyalty; the evidence for this dramatic claim, needless to say, was never offered for the public record.

  Links between private vigilantes and public officials grew stronger: the popular magazine Literary Digest urged its readers to scan other periodicals and “send to us any editorial utterances which seem to them seditious or treasonable.” The government’s official propaganda agency, the Committee on Public Information, asked the public to “report the man who spreads pessimistic stories. Report him to the Department of Justice.” Attorney General A. Mitchell Palmer (who escapade a bomb that blew up his home in 1919) said: “It is safe to say that never in its history has this country been so thoroughly policed.”

  The government backed up the private and official “policing” of wartime critics with an espionage law, passed by Congress in June 1917, shortly after Congress adopted a draft law that subjected all men between eighteen and thirty-five to military service. The Espionage Act was not directed against spying for the enemy, but imposed maximum terms of twenty years in prison for anyone “who shall wilfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces of the United States, or shall wilfully obstruct the recruiting or enlistment service of the United States.” The law’s sponsors—and government prosecutors—argued that any criticism of the government’s wartime policies might induce draft-age men to refuse military service. There was good reason for this concern. Men of draft age did not flock to recruiting centers, and many sought exemptions from service or simply ignored draft notices. The New York Herald reported in August 1917 that ninety of the first hundred draftees in New York City claimed exemptions. Headlines in the Journal of Minneapolis, Minnesota, a state with many Germans and Socialists, read “DRAFT OPPOSITION FAST SPREADING IN STATE” and “CONSCRIPTS GIVE FALSE ADDRESSES.” Senator Thomas Hardwick of Georgia reported “general and widespread opposition on the part of many thousands” of young men, with “largely attended mass meetings held in every part of the State” to protest the draft. Before the war ended in November 1918, over 330,000 men were officially classified as draft evaders, more than 10 percent of those who reported for duty.

  The government’s draft machinery was slow and cumbersome, and most “evaders” escaped prosecution, although several thousand—those who registered but refused to take the physical examination—wound up in jail. Men in this group were tried in civilian courts and faced a maximum one-year term. Those who refused to register—most often for religious or political reasons—were subject to military court-martial and the death penalty; 450 of these “absolutists” were convicted and twenty sentenced to die, although none reached the Fort Leavenworth gallows before the war ended. Ironically, the War Department’s judge advocate general, who supervised military court-martials, was a Harvard law professor on leave, Felix Frankfurter, who later served on the Supreme Court and expressed his fervent patriotism in the flag-salute cases of the 1940s.

  Justice Department lawyers brought two thousand prosecutions under the Espionage Act and sent more than nine hundred people to prison. The most ironic case in this group was United States v. Spirit of ’76, brought against Robert Goldstein, producer of a film about the American Revolution; his depiction of British atrocities against the colonists tended “to question the good faith of our ally, Great Britain,” said the judge, who imposed a ten-year sentence on Goldstein. However, prosecutors ran into unexpected problems in securing Espionage Act convictions: jurors in some areas, especially the Midwest—home to many “isolationists” and German Americans—refused to expose war critics to twenty-year sentences; many of those prosecuted, like the Nebraska woman who knitted socks for soldiers and voiced doubt they would reach them, clearly posed no threat to military recruitment, and several federal judges threw out indictments or refused to send those convicted to prison. Judge George Borquin directed a Montana jury to acquit a sharp-tongued rancher named Ves Hall, who declared in a saloon that “the United States was only fighting for Wall Street millionaires” and who also used a barnyard expletive (deleted in the judicial opinion) to describe President Wilson. Judge Borquin ruled that a person’s “beliefs, opinions, and hopes” were protected from prosecution, and that Hall’s statements did not reflect a “specific intent to commit specific crimes,” required by the terms of the Espionage Act.

  Prompted by Montana’s two senators, Congress responded to Judge Borquin’s ruling in 1918 by adding a “sedition” clause to the Espionage Act, outlawing “any disloyal, . . . scurrilous, or abusive language about the form of government of the United States . . . or any language intended to bring the form of government of the United States . . . into contempt, scorn, contumely, or disrepute.” This new Sedition Act recalled the notorious Alien and Sedition Act of 1798, down to its wording. The Supreme Court never ruled on the first law, which expired in 1801 before any challenge reached the justices. But challenges to the Espionage and Sedition Acts of World War I did reach the Court, putting the justices on a collision course with the First Amendment. For the first time since ratification of the Bill of Rights in 1791, the Court was asked to rule that Congress had violated the constitutional ban on laws that abridged “freedom of speech, or of the press.”

  The first case to test the First Amendment began in Philadelphia, not far from the Constitution’s birthplace at Independence Hall. On August 13, 1917, members of the city’s Socialist Party executive c
ommittee gathered for their monthly meeting. After discussing the party’s campaign against the recently enacted draft law, the assembled comrades directed their general secretary, Charles J. Schenck, to prepare a leaflet for mailing to men whose names were listed in the newspapers as having passed their army physical examinations.

  Schenck already had copies of a leaflet the party had been distributing in its antidraft campaign. It was headed “LONG LIVE THE CONSTITUTION OF THE UNITED STATES” and reprinted the words of the Thirteenth Amendment, which abolished slavery and “involuntary servitude.” The leaflet employed what Justice Oliver Wendell Holmes later called “impassioned language” against, the draft. “A conscript is little better than a convict,” it read. “He is deprived of his liberty and of his right to think and act as a free man.” The leaflet urged readers to join the party’s campaign to repeal the draft law. “Do not submit to intimidation,” it implored. “Exercise your rights of free speech, peaceful assemblage and petitioning the government for a redress of grievances. Come to the headquarters of the Socialist Party, 1326 Arch Street, and sign a petition to Congress for the repeal of the Conscription Act.”

  The first side of the leaflet simply asked readers to sign a petition. Schenck drafted language for the other side, which he headed, “ASSERT YOUR RIGHTS!” Justice Holmes later summarized its text: “It stated reasons for alleging that any one violated the Constitution when he refused to recognize ‘your right to assert your opposition to the draft,’ and went on, ‘If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain.’ ” Holmes continued: “It denied the power to send our citizens away to foreign shores to shoot up the people of other lands, and added that words could not express the condemnation such cold-blooded ruthlessness deserves, &c., &c., winding up, ‘You must do your share to maintain, support and uphold the rights of the people of this country.’ ” Schenck’s language did not ask readers to take any other action than voicing their objections to the draft law