Jeffrey B. Morris*

Edward Douglass White was the first Associate Justice to be "promoted" to the center seat. ** His appointment in 1910, after sixteen years on the Supreme Court, was very well-received both within and outside the Court. During the first half of White's decade-long tenure (1910-21), the Court, which had been largely reconstituted by President William Howard Taft between 1909 and 1912, was both harmonious and productive. Yet, by White's death in 1921, new fissures had opened which the aging Chief Justice was unable to bridge. Reforms instituted in the early years of White's Chief Justiceship were no longer adequate to deal with the caseload. Major changes were necessary in the Court's jurisdiction, changes which required a more politically aggressive Chief Justice to become a reality The Supreme Court was by 1921 once again ripe for renewal, this time with the man as Chief Justice who had appointed White, William Howard Taft. Edward Douglass White became Chief Justice with unusual advantages–extensive judicial experience, familiarity with the workings of the Supreme Court, good personal relations with the members of the Court, popularity and prestige outside the Court, and an unusually warm personality Weaknesses as a manager, the infirmities of age, and too traditional a view of the role of a Chief Justice would greatly hamper his effectiveness. In order to comprehend White's work as Chief Justice, it will be necessary first to describe William Howard Taft's unusual impress upon the Court of this era, White's colleagues, and the Court's jurisprudence. The story begins at the end of the Fuller era, the difficult 1909 term of the Court, which corresponded with Taft's early years in the White House.

An Enfeebled Court

In certain respects the 1909 term was the most dismal in the Court's history Perhaps at no other time had the Court paid such a price for life tenure. Even before the term, President William Howard Taft, a close and informed (if somewhat hyperbolic) observer, was moved to write:

To be sure, there were "active men on the bench." The three Justices in their sixties –Holmes (67), McKenna (65), and White (63)–were vigorous and would continue to serve for an average of seventeen more years. Day at fifty-nine would remain a vital force for over a dozen years. However, the youngest Justice, William Henry Moody fifty-five, would leave the bench for a rest after May 7, 1909, never to return, afflicted by a deteriorating, disabling rheumatic condition.*** If Fuller (76) was not senile, and

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* I acknowledge with great appreciation research assistance from Greg Hensel, presently a student at Harvard College, and Francis McElhill, a first year student at the Villanova University School of Law.

**John Rutledge served briefly as Associate Justice (1790-91) and, even more briefly as Chief Justice (1795) until the Senate rejected his nomination. Associate Justice William Cushing was confirmed as Chief Justice in 1796, but declined to serve. Charles Evans Hughes would return to the Supreme Court as Chief Justice (1930-41), fourteen years after he had resigned his seat as Associate Justice. Harlan Fiske Stone was appointed Chief Justice (1941) after sixteen years service as Associate Justice. Abe Fortas' promotion in 1968 failed of confirmation.

***Congress responded on June 23, 1910 to Taft's request with a law enabling Moody to retire with those benefits which would have been available to him had he had ten years service or attained age seventy

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Harlan (75) had passionate dissents left, all four of the Justices in their seventies* had been greatly slowed.

The Court struggled through that 1909 term. Peckham, Brewer and Fuller died prior to the first public session of the succeeding term. With Moody's retirement imminent (November 20, 1910), Taft would make a precedent-shattering five** appointments in one year–between January 3, 1910 and January 3, 1911. Within eighteen more months a sixth Taft appointee would take the oath of office. Not since Andrew Jackson had a President appointed a majority of the Justices. ***

President Taft's Court

Perhaps no one person has influenced the selection of members of the Supreme Court over such a sustained period of time as William Howard Taft. As judge and Solicitor General in the 1890's, he aspired to the Court. As cabinet officer and imperial governor of the Philippines, he declined appointment to the Court, advising Theodore Roosevelt on his selections. After his Presidency, he was among those conservatives closely scrutinizing Wilson's appointees and a leader of the opposition to Brandeis' appointment. With his ambition to be Chief Justice satisfied, he advised Harding, Coolidge and Hoover on the choice of judges and justices, even influencing the selection of his successor, Charles Evans Hughes.

Surely, no President approached the task of judicial selection with as remarkable a blending of informed judgment, concern and envy for the position, as Taft did. Consulting widely, Taft did his own canvassing and weighing of candidates. As he said on the eve of the appointments of White, Van Devanter and Lamar, "I am sure that I shall not suit everybody, but I shall at least suit myself."[2] In that process, Taft not unlike Presidents who came before and after him, was sensitive to political realities.**** He certainly wanted men on the Court who shared his views–men who were "sound," men of balance, men of moderation, but also men who could adapt the Constitution to changing political needs. Chief Justice Taft, over a decade later, would hold far more conservative jurisprudential views than President Taft. The right political party did not much concern Taft. He appointed three southern democrats (Lurton, Lamar and White). But, along with "soundness," President Taft was deeply concerned with institutional factors. He looked for men with judicial experience and proven technical competence; men who were young and energetic. Hughes, Van Devanter, Lamar and Pitney, were 48, 51, 53 and 54 years old respectively Youth would tend to increase efficiency and to increase the likelihood of perpetuating the President's jurisprudential philosophy On his last day as President, Taft told the press that "[a]bove all other things he was proudest of the fact that six of the nine members of the Supreme Court, including the Chief Justice bore his Commission." He continued with a chuckle, "And I have said to them, 'Damn you, if any of you die, I’ll disown you.'"[3] Ironically,

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*Brewer and Peckham were seventy-one.

**By appointing White Chief Justice, Taft was able to appoint a new Associate Justice in his place.

***Lincoln appointed five Justices of the Court which then had ten members.

****A rueful and wry Taft remarked of his selection of three Southerners to Josephus Daniels in 1921, "Yes, I am sure the Southern people like me. They would do anything except vote for me." Daniel S. McHargue, "President Taft's Appointments to the Supreme Court," 12 J. of P01. 478 at 509 (1950).

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only Van Devanter of his six appointees, would still be serving on the Court by the time Taft commemorated his second anniversary as Chief Justice–July 11, 1923.

Friendship and respect overcame the criteria of age and party when Taft made his first appointment in 1909–the sixty-five year old Tennessee Democrat, Horace Lurton. Lurton's twenty-six years of judicial experience included seven as Taft's colleague on the U.S. Court of Appeals for the Sixth Circuit.*

Lurton was one of those Confederate soldiers who owed his life to Abraham Lincoln's mercy He had been taken prisoner while riding with Morgan's irregular cavalry and became seriously ill with a lung ailment. Lurton's mother rode through "enemy" territory to intervene personally and successfully with the President.

The oldest Associate Justice ever appointed, chunky, gray-haired, Lurton, whose face was marked by "a thin unbroken line of grey-flecked eyebrows" and a "massive walrus mustache," would be a gentle, courteous and generous colleague. During a tenure lasting less than five years, he joined with his colleagues "in sanctioning a modest increase in the police powers of the federal government."[5] He was "less inclined to read the silence of Congress as a bar to state regulatory action" and more stingy in determining the scope of the commerce power as an inroad on the state's police power.[6]

Choosing the Court in 1910 over the then hypothetical possibility of the Republican Presidential nomination, Charles Evans Hughes left it in 1916 when the possibility became a reality In those few short years he had established himself as a productive and powerful figure. In five terms he wrote more opinions for the Court (115) and more dissents (32) than any of his colleagues, authoring such opinions as those in the Minnesota Rate Cases[7] and the Shreveport Rate Case.[8] His judicial sympathies for the claims of individuals in cases involving civil rights and civil liberties, major characteristics of his tenure as Chief Justice, were already evident.[9] Hughes brought to the Court energy, integrity, brains, good humor, and physical presence.

On December 12, 1910, Taft submitted a "package" of appointments to the Congress. Edward Douglass White was named to succeed Chief Justice Fuller. Willis Van Devanter was named to fill White's spot as Associate Justice. Joseph Rucker Lamar was to succeed Moody.

The protege of Wyoming Senator Francis E. Warren,[10] Van Devanter had been active in Wyoming politics, serving briefly as Chief Justice of the Territorial Court at the age of thirty; as Solicitor in the Interior Department; and by appointment of Theodore Roosevelt, Judge of the U.S. Court of Appeals for the Eighth Circuit (1903-11). Even on that Court, his relatively low rate of productivity troubled observers. Although concerned, Taft believed that the problem was due to Van Devanter's illness and that of his wife, and that the dilatory habit "could be corrected by close association with a court that sits all the time in the same city"[11] Taft was mistaken. The problem worsened appreciably on the Supreme Court, where the average number of total Van Devanter opinions annually was the lowest–14.15– of any Justice appointed between 1853 and 1943. ** Nonetheless, during his tenure of twenty-six years, some of what Van Devanter could not supply with his pen, he made up through other manifestations of intellect and personality Colleagues, forced to write more opinions because of Van Devanter's "writing block" would appreciate his ability to get along, his willingness to give his time and effort to them unstintingly, and his intellectual strength–demonstrated by careful and elaborate statements in conference and by his knowledge of such difficult fields of law as public lands, water rights, admiralty and procedure.[12] Deeply committed to a jurisprudential philosophy emphasizing the protection of private property, Van Devanter would join James C. McReynolds, Pierce Butler and George Sutherland in a powerful conservative bloc which would plague Franklin Delano

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*Taft was Chief Judge of that Court (1892-1900). Lurton would serve from 1893 to 1909. William Rufus [later Justice] Day was their colleague for a short time serving from 1899 to 1903 on that noted court.

**Van Devanter wrote only four dissenting and one concurring opinion in twenty-six years. His average of 13.85 opinions for the Court can be compared with such contemporaries as Holmes (30.10), Pitney (24.90), McReynolds (18.77), Brandeis (25.60), Taft (31.88), Butler (20.31), and Stone (24.00). Of course, the average number of opinions may conceal variations in the length and complexity of opinions, but there is little to suggest that Van Devanter did more than his share of the more difficult opinions. See Albert P. Blaustein and Roy M. Mersky, The First One Hundred Justices (Hamden, Ct.: Archon Books, 1978), pp. 142-149.

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In 1914, a contemporary journal, World's Work, described Joseph Rucker Lamar's "pink and white cheeks, his snowy hair, and his pleasant, clear voice," terming him "one of the delightful personalities of the Court."[13] Not known for sentimentality, Oliver Wendell Holmes wrote after Lamar's death, "We all loved him."[14] A lawyer and legal historian whose judicial experience had been confined to several years on the Georgia Supreme Court, Lamar would, as a U. S. Supreme Court Justice, support moderate state and federal regulation of private economic activities, as well as an enlarged use of federal administrative powers. In other cases, he resorted to traditional formulae such as "liberty of contract" and businesses "affected with a public interest."[15]

Taft's final appointment, Mahlon Pitney took his seat on March 18, 1912, replacing Harlan, who had died six months before. Pitney had served as a member of the New Jersey Supreme Court (1901-08) and Chancellor of New Jersey (1908-12), where he had presided over both the law and equity branches of the appellate court. Six foot three and white-haired, the fifty-four year old Pitney served for little more than a decade. He would be found generally with the middle "bloc" (with Day and McKenna). Remembered for opinions hostile to labor, such as Coppage v. Kansas.[16] Pitney fervently supported antitrust regulation, and was open to the exercise of state regulatory power.[17] A recent observer has written that his:

The Holdover Justices

When William Howard Taft chose White to be Chief Justice in 1910, experience within the Court was an important criterion. Five Justices, appointed by four different Presidents, had over two years experience on the Supreme Court at the time of White's selection: John Marshal Harlan, Edward Douglass White, Joseph McKenna, Oliver Wendell Holmes and William Rufus Day *

Harlan was nearing the end of an extraordinary thirty-three year career on the Supreme Court. Although he was denied fulfillment of his ambition to be Chief Justice, there would be time for two more mighty dissents to complete a (then) record total of 119.**

After Harlan's death, Joseph McKenna, appointed by President McKinley in 1898, became senior associate Justice. From 1911 to 1921, for the only time in the history of the Supreme Court, the two senior positions were held by Roman Catholics. A "spare, rather stiff little man" wearing a "closely-cropped gray beard,"[19] McKenna was a moderate figure on the Court during the years White was Chief Justice. Recent observers have differed in their assessments of McKenna. He has been criticized for "a series of frequently conflicting opinions and votes" or "erratic empiricism."[20] But, he has been praised for his intellectual growth in office, his ability at times to cut through abstractions to reach the facts of the situation, his sensitivity for the underdog, and his eloquent expression of "the need to interpret the rights guaranteed the individual by the Constitution liberally and with sensitivity to present conditions."[21]

Next in line of seniority was Oliver Wendell Holmes, "a striking looking man, tall, thin, blond, with a long cavalry mustache."[22] Sixty-nine years old in 1910, Holmes remained an intellectually powerful force throughout a tenure that lasted into his ninety-first year. Perhaps only Cardozo and Frankfurter of the 102 Justices have approached Holmes in the richness of intellectual background or in the continuing zest for learning in order to deepen and broaden the channels for the great forces that lie behind every detail, and to "open as many windows" as possible on what ultimately determines court decisions–"philosophy, sociology, economics and the like."[23] Skeptical of reform and reformers, Holmes would nonetheless defer to Congress and the state legislatures far more often than most of his colleagues. He was heard to remark that there was noting he enjoyed so

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* Taft's own appointees, Lurton and Hughes, had been on the Court a short time.

**Standard Oil Co. v. United States, 221 U.S. 1,82

(1911); United States v. American Tobacco Co., 221 U.S. 106, 189 (1911). 'The day after the Standard Oil decision was announced, Justice McKenna asked Secretary of State Philander Knox, "What do you think of the Court now?" Knox replied, "Well, I should hate to use any such language about the Court as it said about itself yesterday" Charles Henry Butler, A Century at the Bar of the Supreme Court of the United States (New

York: G. P. Putnam's Sons, 1942), p. 169.

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much as enforcing a law of which he thoroughly disapproved.[24] For nearly three decades his colleagues would depend upon his extraordinary writing speed and admire his special zest for life. Holmes and his close friend, the very different Brandeis, would prove to be the strongest influences upon the craft of later twentieth century judges.

William Rufus Day was physically the smallest and lightest member of the White Court. When his burly son, William L. Day was appearing as counsel before the Court one day, the irrepressible Holmes remarked, "He's a block off the old chip." With a partially greyed mustache drooping ever-so-slightly, Day resembled a gentle, bookish, old-fashioned professor. Distrustful of the concentration of political power in the national government and of extreme concentrations of economic power in business combinations, he was a strong supporter of enforcement of the antitrust laws, but took a narrow view of federal power under the commerce clause. During the White years (as in the Fuller years) Day was generally to be found in the middle of the Court, a balance wheel whose tact and legal knowledge helped to prevent polarization.[25]

Edward Douglass * White

Edward Douglass White "looked like a Chief Justice," a phrase that over the years has been employed to describe Hughes, Stone, Warren and Burger. It is helpful for the Chief Justice to look the part of a living personification of "justice"–well-seasoned, sturdy, authoritative, but kindly White was a massive man, less than six feet tall, but weighing 250 pounds, with a small face in the center of a great head. In his later years he had heavy jowls. Elbert F Baldwin wrote in Outlook that in "physical appearance no man in public life better deserves the adjective ‘ponderous." Another

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*Since White's death, countless hours have been spent considering the question as to whether his middle name ended with one or two 's'. The formal invitation to 1959 ceremonies commemorating the placing of a statue of White in front of the building housing the Louisiana Supreme Court handled the matter in this manner: The Edward Douglas White Commission cordially invites you to the rededication of the statue of Edward Douglass White" [italics author]. See Dixie, December 17, 1961, and letter from Mrs. Lillian Selcer to Miss Helen Newman, December 11, 1961 (Supreme Court Library).

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man in public life better deserves the adjective 'ponderous.'"[26] Another observer reported that "his bulky presence broods over the whole courtroom."[27] Still another journal wrote that White was "large of physique and large of brain and heart."[28]

Born on a Louisiana sugar plantation, White was the son of a Governor of Louisiana.* Educated at Catholic schools and colleges, he left Georgetown College at fifteen to serve in the Conferederate army Taken prisoner after the capture of Fort Hudson in 1863, ill and emaciated, White was paroled. He studied law in the office of Edward Bermudez, later Chief Justice of Louisiana, and at the School of Law of the University of Louisiana. Admitted to the bar in 1868, he became a leading attorney in New Orleans. Entering politics, he was elected to the Louisiana Senate in 1874. Appointed to the State Supreme Court in 1879, serving for fifteen months until the court was reorganized under a new constitution, White penned eighty-three opinions. White himself later said that the work of that court during the period 1879-80 was probably the heaviest ever done by a court of last resort of that size. To some Louisiana observers the court ranked as "among the best in their history."[29]

Elected to the United States Senate in 1890, White fought against government interference with business while advocating a continued high tariff on sugar and federal bounty payments to sugar growers. Generally supportive of President Grover Cleveland, his opposition to Cleveland's tariff policies was such that his nomination to the Supreme Court came as a surprise. History has not clarified Cleveland's motivation for the appointment. He may have been attempting to weaken the opposition on the tariff issue** or to have his appointee to the court be assured of confirmation, since his previous two nominations to the seat vacated by the death of Samuel Blatchford had been rejected. Cleveland may have appreciated White's opposition to annexation of Hawaii and the relative lack of pressure from him on matters of patronage. There may even be some truth to the legend of the visit paid by both Cleveland and White to the home of Delaware's Senator, James A. Bayard. Supposedly, Cleveland overheard White inquire as to whether there was a Catholic Church in the neighborhood where he could attend early mass. It was at that time, according to the story, that Cleveland made up his mind that "there was a man who was going to do what he thought was right; and when a vacancy came, I put him on the Supreme Court."[30] Whatever may have influenced Cleveland, it does not seem to have been public opinion, which reacted to White's appointment with disinterest.[31]

Associate Justice for sixteen years, White's jurisprudential philosophy permitted the states and federal government considerable latitude in economic regulation. He gained notice for his dissent in the Income Tax Case,[32] and was among the dissenters in Lochner v. New York.[33] From 1901 to 1905 he brought the Court over to his view that the United States Constitution applied to territories of the United States, if the Congress had chosen to incorporate them, or if the territories had been incorporated by treaty.[34] His view that the Sherman Anti-Trust Act did not apply to "reasonable" restraints of trade, first put in 1897 in a 10,000 word dissent,[35] appealed to Taft. White would bring a majority over to this position soon after he became Chief Justice.[36]

Taft's selection of White as Chief Justice was unexpected to many because White was a Roman Catholic, an attorney trained in the nation's one civil law state, a Southerner and ex-Confederate soldier, a Democrat, and an Associate Justice. Closer scrutiny of each of these characteristics suggests how they might have appealed to Taft and shed light on White the man.

Edward Douglass White was a religious Catholic. For his twenty-six years on the Court he regularly attended St. Matthew's Church. His formal institutional education had taken place in a series of sectarian institutions–beginning as a boy at the College of the Immaculate Conception, where he served Mass, took breakfast, and was exposed to the moral training of the Jesuits. White would later attend Mount St. Mary's College in Emmitsburg, Maryland and Georgetown College. He would maintain his ties with the Jesuits of New Orleans and would serve as President of the Georgetown Alumni. White also maintained close ties with the Catholic hierarchy. The

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*His mother, Catherine Ringgold, was the daughter of Tench Ringgold, Marshall of the District of Columbia, and owner of the home near the White House at which Chief Justices Marshall and Taney would board and in which Chief Justice Fuller would live.

**If so, he did not succeed, because White remained in the Senate for three weeks after his unanimous confirmation, leading the opposition and winning the fight.

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politically influential James Cardinal Gibbons of Baltimore performed White's wedding ceremony in 1894; influential prelates and Catholic laity wrote to Taft supporting his elevation as Chief Justice.

The Supreme Court during White's years rarely dealt with "Catholic" issues. It has been argued that "the rule of reason revealed a sensible and humane understanding of law continuous with the tradition of Catholic judges of Medieval Europe but not distinctively Catholic in the Twentieth Century."[37] Some saw in White's convoluted opinion writing style "a scholar trained in the precise methods of scholastic philosophy."[38] White was no closer personally or jurisprudentially to Joseph McKenna than to several of the non-Catholic Justices he served with. Most probably, as the distinguished Catholic Professor of law at Boldt Hall, John T. Noonan, recently concluded, White's judicial career, like that of Pierce Butler, was little affected by his Catholicism, but would serve as a role model for American Catholics:

White's mastery of civil law hardly proved a barrier to his service as the chief judicial officer of a common law judiciary Having studied under the master 'civilian,' Edward Bermudez, and fluent in French, Spanish, Italian and Latin [also reading German], White was viewed by some as "not merely a learned civilian but a veritable jurisconsult."[40] During his years on the Supreme Court, White made few references to authorities in the civil law."[41] What was important was that as a Louisiana attorney, White had also mastered the common law.

While White had seen active service in the Confederate Army, he found different lessons in that experience than did many of his cohorts. Perhaps there is truth to the legend that, after White's parole–seventeen years old, ill, and emaciated–he walked to his home clothed in a coat given to him by a concerned Yankee soldier.[42] He became a passionate nationalist in time. "My God!," he would later say "My God, if we had succeeded."[43] As Justice of the Supreme Court, White stressed that the United States was a nation possessing all the powers necessary to its national existence. [44] In the Selective Draft Law Cases of 1918, he wrote of the "Supreme and Noble duty of contributing to the defense of the rights and honor of the nation."[45] Speaking years later of the decision in Rasmussen v. United States,[46] which had held that the guarantees of the Bill of Rights were in force in Alaska because it had been incorporated into the United States by the 1868 treaty with Russia, White said, "Why sir, if we had not decided as we did, this country would have been less than a nation.[47]

There are reasonable grounds for suspicion–but not clear proof–that during Louisiana's complex Reconstruction politics, White belonged to an organization similar to the Ku Klux Klan.[48] This would not have proven to be a political liability in 1910. As Chief Justice, White joined in such early pro-civil rights decisions as Bailey v. Alabama,[49] Buchanan v. Warley[50] and authored the Court's opinion in the case holding the grandfather's clause unconstitutional.[51]

The Appointment of White as Chief Justice

Melville Weston Fuller died on the Fourth of July, 1910. Considering his awareness of the Court's difficulties, Taft took what appears to be an extremely long time to fill the vacancy–five months. Undoubtedly, some of the delay was due to the fact that the President was putting together a "package" of judicial appointments. The new term began on October 10 with the seventy-seven year old Senior Associate Justice, John Marshall Harlan, presiding. There was widespread interest and concern over the appointments, especially because major cases had been held over. The journal, World's Work commented:

Sadness over Fuller's death shortly gave way to personal ambition and gossip about the future as it began to appear that Taft might select from within the Court. Less than a week after Fuller's death, Harlan made the case for appointment from within in a letter to Taft in which he appeared to be strongly endorsing Justice Day:

If these words were applicable to Day's 'promotion,' so were they to that of others, possibly including that of their author. Disingenuousness characterized the correspondence among the Justices during those months of waiting, while they were apart from each other on vacation. For example, as late as September 12, Harlan wrote Lurton stating that "the mention of my name in connection with the place has been without my knowledge or procurement."[54] Lurton had received such a letter from White, written as early as July 12:

White wrote to Day on August 29, saying that, "If only you or Lurton would take the place of Chief what a blessing it would be for the country."[56] Nonetheless, there is extrinsic evidence to suggest that Harlan hungered for the position and that friends of White were gathering support.[57]

It does not appear that McKenna sought or expected the job. Holmes told him that the two of them were the only ones of the sitting Justices "who didn't have booms going for us."[58] McKenna was not, however, immune from speculating. On September 5 he wrote Day to say:

Holmes admitted to Canon Patrick Augustus Sheehan, "Of course I should like the place," but "I never have thought of it as a possibility." Holmes added, "place doesn't make a man's work any better," and that his only ambition was "to do the best work that can be done."[60] To Sir Frederic Pollack, Holmes argued that he:

To this observer, Holmes appears to be protesting too much. But, whether or not he was deeply interested in the position, Holmes' clear preference among the other sitting judges was White–"the ablest man likely to be thought of." Holmes believed that he "should be a better administrator than White, but he [White] would be more politic."[62]

Taft considered Harlan too old. There is no indication that Taft considered Day, Lurton or Holmes seriously, or that they truly considered themselves serious candidates. On the other hand, speculation within* and outside the Court focused upon Hughes. Expectations would have been greater had the correspondence between Taft and Hughes which occurred on April 10, three weeks after Brewer's death (and a month after Taft had visited Hughes' in Albany) offering Hughes the vacant position, been leaked to the press. Those letters are crucial to an understanding of the President's position. In the body of his letter of April 22, Taft wrote:

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But Taft added a postscript::

Accepting the position, Hughes stated:

Had Hughes turned down the Associate Justice-ship, he probably would have been named Chief Justice. By accepting the position of Associate Justice, Hughes removed himself as rival to Taft for the 1912 Presidential nomination and made himself White's junior on the Court.

These months fueled with gossip and ambition could not have made for easy relations among the Justices. During this period the six Justices had also to adapt to Moody's formal retirement, Harlan's style of presiding over conferences, Hughes' arrival, and to anticipate the effect of three new Justices on the decision-making process. Years later Hughes would recall that although he had hoped "to find himself in an atmosphere of great serenity with men of marked powers," that there was something in the atmosphere that was not at all harmonious."[66] Hughes found White out of sorts, silent and reserved as well as unwilling to take a position on cases in conference. The difficulty, Hughes discovered, was the conflicting ambitions for the Chief Justiceship. According to Hughes, things changed totally after White was made Chief Justice.[67]

Taft met with his cabinet for the entire day of December 11. At one point Hughes was telephoned and asked to come to the White House. But, one-half hour later the appointment was cancelled. The next day, Taft sent to the Senate the nominations of Van Devanter and Lamar as Associate Justices, five nominations to the newly created Commerce Court, two nominations for the Interstate Commerce Commission, and the name of White to be Chief Justice.

As best as can be discerned, Taft narrowed his choice to White and Hughes relatively early Taft was in agreement with the basic thrust of Harlan's letter–that the Court should be guided by someone familiar with its traditions and its manner of operation; someone who could help the newcomers, rather than someone who might add to the strain of absorbing so much new blood.[68] This meant an insider and presumably White, Holmes or Day, since Harlan was too old, Lurton and Hughes too new* and McKenna not strong enough intellectually. Hughes would admit years later that White "thought he had natural claims to the position, as indeed he did!"[69] Taft saw the need for a hard-working Chief Justice, attentive to detail, who could cope with the constant flow of jurisdictional and procedural questions whose resolution by an able Chief Justice conserves time for his colleagues. As to these criteria, White, Holmes and Day were all possibilities. In retrospect, of course, we know that Hughes would have been superb at this, although not necessarily from the outset.

Taft was also looking for a strong administrator who could take the lead in pressing for overdue reforms in the operation of the federal judiciary In that regard, the forty-eight year old Hughes, coming from his vigorous tenure as Governor of New York, would have appeared to be a better choice than White, Holmes or Day

There were other considerations. While Taft knew and liked both men, Hughes had a reputation for austerity, while White was an especially lovable personality Taft admired White's jurisprudential views, especially his work in the Insular cases and in the antitrust area. White the Democrat appeared to some Republicans to be more reliable on jurisprudential issues than Hughes of their own party.[70]

The politics of the situation probably assisted White. Hughes' appointment as Associate Justice in April had been extraordinarily well received throughout the nation. There was probably little extra mileage to be gained by his further advancement. The giant figure of Theodore Roosevelt, who liked White and disliked Hughes, needed to be placated. The appointment of White would be expected to appeal to Southern and to Roman Catholic voters.

Thus, there were a number of factors that Taft weighed. His own ambitions were far from irrelevant, although they may have been overemphasized in some accounts of this appointment. Taft at fifty-three desperately wanted to be Chief Justice. White at sixty-five was seventeen years older than Hughes. In addition to age, the appointment of a Democrat of national standing might lead a later Democratic President to see that crossing party lines might prove good politics. As Taft signed White's commission, he commented:

In retrospect, the vigorous Hughes, a brilliant administrator during his term as Chief Justice, might appear to have been the stronger figure as leader of both the Supreme Court and of the federal judiciary. But, returning to 1910, it is far less clear that Hughes, the freshman jurist, admittedly under considerable nervous strain and preoccupied with learning the ropes of his new job,[72] would have been as effective as White, since he would have been promoted not only over White, but over Harlan, McKenna, Holmes, Day and even Lurton. The sixty-seven year old Hughes, who finally became Chief Justice in 1930, would two decades later bring to that office and to his brethren far greater national standing, as well as greater experience in government, and at the bar, along with greater personal peace.

The national acclaim given White's appointment surprised even Taft. The influential legal journal, Green Bag, editorialized, "we confess to a wholly unpretended and ineradicable admiration for the largeness of mind, heart, character and learning of the new head of the American judiciary"[73] Elbert F Baldwin wrote in The Outlook of "a man whose name, as a synonym of intellectual integrity and impartiality, may rank with the first dozen names of members of the Supreme Court since its creation."[74] Theodore Roosevelt stated:

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*Hughes had never argued a case before the Supreme Court.

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There was satisfaction within the Court as well. Holmes wrote that "it was the best thing that could be done."[76] Hughes took it well. Only Harlan, who as temporary presiding officer announced the appointment and administered White the oath, then exchanging seats with him, appeared– at least to Holmes–"sad and aged."[77]

The Wilson Appointees

Three of Taft's appointees lasted on the Court for only a few years. Horace Lurton died of a heart attack on July 12, 1914. One day before the fifth anniversary of his joining the Court–on January 2, 1916–Joseph Rucker Lamar, died of complications resulting from a stroke. Charles Evans Hughes resigned from the Court on June 7, 1916, three days after receiving a nomination he had not sought for the Presidency from the Republican Party Thus, Woodrow Wilson made three Supreme Court appointments–James Clark McReynolds, Louis Dembitz Brandeis, and Joseph Hessin Clarke–appointments which disturbed the intellectual and personal harmony of the previous few years.

Having made his reputation as a trust-buster in the Roosevelt and Taft administrations, McReynolds was appointed Attorney General by Wilson. Soon wearying of an abrasive curmudgeon, who alienated Cabinet members and Congressmen alike, Wilson seized upon the opportunity presented by Lurton's death to elevate McReynolds to the High Court. In but a few years the fifty-two year old bachelor with piercing eyes and an eagle nose would join Van Devanter and an increasingly conservative White as the Court's conservative wing. A misogynist, anti-black, anti-semitic and anti-social, McReynolds would torment counsel appearing before the court, help drive Clarke from the bench, and be a major source of disharmony for all of his twenty-six years service. Even the affable Taft found working with McReynolds difficult. Harold Laski suggested that "McReynolds and the theory of a beneficent deity are quite incompatible."[78]

Louis Dembitz Brandeis brought to the High Court that which his enemies had feared–compassion for the underprivileged and mastery of sociological jurisprudence, perfecting the "means for sustaining the case for legislative action by a convincing demonstration of the social situation which induced it."[79] His knowledge of business and the economics of labor, public utilities and railroads proved important resources for his colleagues. With Holmes he produced the underpinnings of modern First and Fourth Amendment jurisprudence.[80] A master judicial craftsman, Brandeis helped to define the modern meaning of judicial self-restraint. On the one hand, his arrival (and that of Clarke) produced cleavage within the Court, as Holmes joined them in a bloc opposing that of McReynolds, Van Devanter and White. Still, this passionate man surprised by turning out to be a "team player," who worked easily with men like Taft and Van Devanter, forgot differences, and suppressed his own dissenting opinions.[81]

John Hessin Clarke's progressive sympathies were manifested in a more reflexive and less craftsmanlike jurisprudence than that of Brandeis. Anticipating the judicial career of Frank Murphy a generation later, Clarke would give less weight to precedent, custom or logic than either Holmes or Brandeis, and prove far more willing to appeal to natural law to sustain his sympathies for the underprivileged–especially the laboring man, blacks, Indians and children.

Appointed to the Supreme Court at the age of fifty-nine, Clarke had made his reputation through his involvement with reform politics in Ohio, as owner of the Youngstown Vindicator, a Progressive newspaper, and as a corporate lawyer. Appointed a District Judge, largely because of the efforts of Attorney General McReynolds, Clarke, as a Justice would become a prize victim of McReynold's sarcasm and ill-humor, possibly because of resentment that a ptotege would not follow his lead.

As Associate Justice, Clarke voted to sustain broad federal powers under the commerce clause, anti-trust prosecutions, and construed the Fourth and Fifth Amendments liberally His views on the First Amendment, however, were far more traditional than those of Holmes and Brandeis.[82] Clarke was never entirely happy on the Supreme Court, reacting critically to many of its procedures, not adjusting easily to its ways, and resigning at age sixty-five, after serving less than six years. He lived on another twenty-two years.[83]

White Court Jurisprudence

During the first five years White was Chief Justice a largely unified court read the rule of reason into the Sherman Act, demonstrated sympathy for moderate exertions of the federal police and taxing powers, and broadly construed powers under the Commerce Clause. White's greatest triumphs came early in his tenure. In the much anticipated cases involving anti-trust prosecutions of Standard Oil and American Tobacco, the Chief Justice marshalled eight votes for his approach. With White writing the opinions, the Court ordered the dissolution of both monopolies, but stated in dicta that the Sherman Act only applied to "unreasonable" restraints of trade.[84] Although White stated that the doctrine was consistent with previous decisions, it had appeared first in a dissent of his in 1896. White carried the three new Justices with him and all of his senior colleagues other than Harlan. Over sixty years later these opinions remain controversial, although the prevailing view would seem to be that they did not in the long run hamper anti-trust enforcement, and may have prevented the destruction of efficient corporations, the existence of which might benefit the consumer.

In other significant decisions during the first few White years, the Court, in opinions by Justice Lamar, sustained legislative delegation of administrative functions to the Executive,[85] and sanctioned a material enlargement of executive power.[86] In opinions by Justice McKenna, the Court sustained the Pure Food and Drug Act[87] and the Mann Act.[88] In opinions by Justice Hughes, the Court held that Congress had the authority to regulate even intrastate railroad traffic, so that intrastate trade would not be destroyed by the rivalries of local governments.[89] The Supreme Court also upheld state laws limiting the hours of work for women,[90] but struck down the law of Kansas which had outlawed "yellow-dog" contracts."[91]

With the European War in the background, the Court sustained broad exertion of national powers. Dividing five to four, the Court upheld a federal law limiting to eight hours the amount of time railroad employees could work, with the Chief Justice writing the opinion."[92] In another White opinion, a unanimous court upheld the World War I Conscription Act as incident to sovereignty and the war power.[93] Holmes' opinion in the "Migratory Bird" case was the occasion for another powerful statement of national supremacy."[94] The Court also upheld wartime prohibition and the seizure and operation of railroads in wartime.[95] But it broke with the broad construction of national powers to hold in an opinion by Justice Day (with Holmes, Brandeis, Clarke and McKenna dissenting) that Congress did not have the power to regulate child labor.[96]

During the White years the Supreme Court demonstrated some sympathy for the claims of blacks. The "grandfather clause," which was used to discriminate against the exercise of the franchise by black Americans, was held unconstitutional; so was a municipal ordinance fostering residential segregation.[97] The Court began to deal with First Amendment problems regularly for the first time in its history It sustained a conviction under Espionage Act of 1917 for distribution of a pamphlet allegedly containing false statements;[98] gave full scope to the doctrine of criminal conspiracy;[99] upheld suppression of pro-German sentiments;[100] and, sustained the conviction of Eugene V. Debs for obstructing recruiting.[101] Under the influence of Brandeis, Learned Hand and Zechariah Chafee, Holmes, in a relatively few months, moved away from employment of the clear and present danger as a negative or restraining device, to interpreting it as a libertarian rule.[102] He could not carry the Court with him.

White as Chief Justice

Edward Douglass White was not one of the more successful Chief Justices. By criteria which could be used to judge the efficacy of a Chief Justice–marked personal influence upon the jurisprudence of his own or later eras; securing by management of the Court's business an environment considerably easing burdens upon colleagues; assisting the decision-making process by taking an active role in influencing the Congress to pass legislation' either altering the Court's jurisdiction or improving its working conditions; employing the visibility and leverage of the office to influence Congress to make the changes necessary for efficient operation of the federal court system–White's contributions do not compare with those of his immediate predecessors, Waite and Fuller, or with his immediate successors, Taft and Hughes.

If White was not as successful as chairman of the committee of nine as Waite or Fuller, he maintained warm relations with his colleagues, the. Court's officers and its bar. Within the Court this was a period of civility and relatively high productivity If White's jurisprudential contribution does not loom as large today as that of Marshall, Hughes or Warren, that is due more to the type of cases decided in that era than to his grandiloquent style of writing. Not ready to take the lead in seeking reform in the structure of the federal court system, White concentrated his energy upon deciding cases and managing the Court's business, keeping himself, his office, and the Court free of controversy White would not need to lead a heroic battle against efforts to cripple the courts, in part because he led his Court prudently, defusing progressive hostility to the federal courts.

The failure of White as Chief Justice was that he did not fully capitalize upon his many sources of influence. At the time of his appointment, his prestige as a judge was unrivalled. He was familiar with the methods of operation, customs and traditions of the Supreme Court. He had maintained close relations with the holdover Justices, who–with the exception of Harlan–were pleased by his appointment. He would have the opportunity to "break in" four new Justices, appointed by the same President who appointed him. He was on very friendly terms with some of the most powerful figures in the nation, including Taft, Theodore Roosevelt, and Woodrow Wilson.

To be sure, the potential of the Chief Justice to influence eight independent-minded colleagues has been exaggerated, although such expectations have persisted since Marshall's death. The Green Bag, for example, thought White's appointment gratifying to those who believe "that the Chief Justice should not merely direct its business but should dominate its opinions and mould its policy."[103]. A Chief Justice can not dominate, but an able intellect and good leader of men should be able to draw upon the prestige of his office and the deference accorded him by some of the customs of the Court to wield significant, if intermittent influence.

Early in White's tenure, he produced overwhelming majorities in the important "rule of reason" cases. Coming to office stating that he was "going to stop the dissenting business,"[104] White was successful in limiting dissenting opinions in his first three full terms to a total of twenty-four (compared with an average of 16.1 for the last ten terms of the Fuller era). To be sure, the death of Harlan and the large number of appointments made by Presidents of an apparently similar ideological persuasion were factors, in addition to White's leadership. But in those first few years, the institution was not only in basic jurisprudential accord, but also was collegial and serene, presided over by its warmhearted Chief Justice.

Even the arrival of the unpleasant McReynolds did not disturb the atmosphere in the early years of White's tenure. But the addition of Brandeis and Clarke brought to the bench men whose approach to judging differed sharply from that of all of their colleagues other than Holmes. Due to the First World War and Prohibition, new and complex issues arose, dividing the Court. Distinct blocs emerged: Holmes, Brandeis and Clarke on one side; McReynolds, Van Devanter, and White on the other; McKenna, Day and Pitney in the center.

No doubt the difficulties within the Court during the latter part of White's tenure were compounded by his aging. Rumors of his retirement began to circulate as early as 1916, when he was in his seventy-first year. In those last years, White's hearing was bad, and, due to cataracts, his eyesight deteriorated so much that he had great difficulty recognizing those at the counsel table. Along with these real ailments, White may have been a hypochondriac about his heart.[105] Although the Chief Justice never complained and continued to work conscientiously, his infirmities did add to the burdens of his colleagues. Some sense of how difficult the last years may have been can be seen by comparison with life at the Court during the early years of his successor, William Howard Taft, whose:

While White's health undoubtedly hampered his capacity to lead, the problem was deeper and emerged earlier. This man, so well-liked, indeed loved, by his colleagues, was just not an effective manager of men.

That White was lovable does not seem open to doubt. There are just too many accounts of his modesty, courtesy, patience and sweetness. White seems to have had the emotional openness and uncalculating warmth of a child. Indeed, that metaphor was used by Attorney Generals Harry M. Daugherty and George W. Wickersham in their memorial tributes to White.[107] Childless himself, White's love for children was pronounced. He carried candy in his pocket to comfort children in distress. He "was often seen escorting children across a street through crowded traffic."[[108] At least once the enormous Chief Justice was seen playing drop-the-handkerchief with some young girls.[109]

William Howard Taft would on White's death speak of his "unfailing courtesy and sweetness of manner which endeared him to all with whom he was associated."[110] There are stories of White helping pages carry heavy bundles around the Capital[111] and surrendering his place in a street car to a black woman carrying a large market basket.[112] Indeed, the only instance of White's not adhering to the canons of propriety seem to be his tradition of inviting attorneys from New Orleans home to dinner, even when they were arguing cases before the Court.[113]

It is also clear that this very lovable, very human man cared deeply for his colleagues and was cared for in return. It is reported that often on his daily walks he would stop at the homes of his brethren to leave cigars for the justices and roses for their wives. Justice Lamar's wife, Clarinda Pendleton Lamar, recalled that:

Brandeis related that when he came to the Court after a bitter fight over his confirmation, he sought White's advice as to whether he should accede to President Wilson's request that he head a mission to Mexico. White insisted that Brandeis should look on him not as a Chief Justice but as a father. From then on internal memoranda from Brandeis to White were addressed "Father Chief Justice." In return, White would write to Brandeis calling him "Grandfather Justice Brandeis.[115]

Years later, Hughes, once White's rival for the office, told Felix Frankfurter:

Hughes had two pictures of judges on the walls of his home–one of an English judge; the other of White.[117]

Lovable and approachable, White still was unable to capitalize on the personal good will he generated to promote more efficient management of the Court's conference. Not only was he unable to maximize his influence, it appears that his handling of conference was so inadequate as to detract from the Court's work product. * While devoted to White personally, Hughes consciously employed his experiences under White as the model not to emulate in managing the Court's business. He thought White under-prepared for discussion in difficult cases. Hughes recounts that White did not guide discussion. He might open discussion' about a case with an extended speech, or throw up his hands and say, "Here is a baffling case. I don't know what to do with it. God help us!"[118] Hughes concluded:

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* The reader should be aware that information about the Supreme Court during White years is limited. The analysis of this section is based upon remarks made by Charles Evans Hughes thirty years later, the published correspondence of Oliver Wendell Holmes, and upon the apparent delight with which Taft was received by his colleagues during his first few years.

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Thus, even while personal relations were good during these years– tensions between Holmes and Harlan, Holmes and Clarke, and Clarke and McReynolds being the exceptions–the work of the Court does not seem to have flowed as easily as it had during much of the Fuller years, even though statistics show that productivity was relatively high. After Taft replaced White, Brandeis reported:

It appears that too often White permitted rambling debate, generating unnecessary controversy, and irritating the more efficient Justices.

Some of this must have led to Holmes' pronounced change of opinion of White. At the outset of White's tenure, Holmes wrote of the appointment that "it was the best thing that could be done."[121] But Holmes view of White became increasingly critical. Twenty years later he wrote to Laski, "If Hughes could have been appointed then as was expected I think the history of the Court's doings would have been better than it is."[122] Whatever other factors affected relations between the two men, some of Holmes' feelings must have been the result of frustration with the conference, expressed, for example, in Holmes' comment to Laski soon after Taft became Chief Justice that he thought that

White was unwilling to take the lead in asking Congress to modify significantly the Court's working environment in either of two major respects –the creation of a largely discretionary jurisdiction and the authorization of funds for construction of a building to house the Court. During White's tenure the benefits of the Evarts Act of 1891 began to wear off. Once again the number of cases demanding resolution was becoming too great for the capacity of the Court. Under White the Court dealt with the overload in several ways. Some cases of minor significance were disposed of without argument. When White became Chief Justice, he instituted a rule under which certain cases were placed on a summary docket and permitted just thirty minutes per side of oral argument. Generally, the time permitted for oral argument declined. Some cases were dismissed with costs, discouraging some writs of error and appeal.[124] Many cases were decided per curium to conserve time during argument. White would state at the beginning which questions he wished answered; attempted to avoid interrupting counsel; permitted counsel to respond to a question at any time if interrupted; and attempted to encourage his colleagues to follow suit.[125]

The Supreme Court avoided the merits of many cases by deciding them on jurisdictional or procedural grounds.[126] If White would not move dramatically to overhaul internal operating procedures, he would become a master at finding reasons why the Court should avoid dealing with substantive law. Kenneth Bernard Umbreit writes of White that::

White wrote the opinions in most of these cases because of his expertise and because:

But while the new Chief Justice in 1910 would push successfully to speed the work up,[129] over the long haul White's reverence for tradition–like Fuller's and his colleagues–limited the scope of reforms. Briefs and records remained prolix.[130] Full days were consumed reading opinions in open court. Thus, when all was said and done, the most important method of disposing of cases was (and always has been) hard work. John Hessin Clarke, critical of many of the Court's internal procedures, would admit that he:

But sometimes hard work is not enough. The quickening pace of the twentieth century and the role the Court was performing in national life required a major change in the Court's jurisdiction. White was not a major force influencing passage of the four pieces of legislation that became law during this period which altered the Court's jurisdiction. None of these changes made a sizable impression in reducing the number of cases on the Court's docket: (1) the abolition of the Circuit Courts ;[132] (2) an increase in the Court's jurisdiction by permitting it to take cases via the route of certiorari when a state had upheld a federal right by striking down a state law;[133] (3) the creation of certiorari jurisdiction for bankruptcy cases;[134] (4) the extension of certiorari to limit litigation from state, federal and territorial courts.[135] It would take the commitment of time and the prestige of the office by Chief Justice Taft to secure passage in 1925 of the Judges' Bill, which established the Court's contemporary certiorari jurisdiction.

The working conditions of the Court were not adequate either. The Justices did not have offices in the Capitol. What the Court did have in the Capitol Building was a courtroom and twelve other rooms–mostly small and arranged inconveniently–for their library, clerk's office and other needs. The problem of storage was critical.[136] The Justices and their secretaries* worked at home, where attorneys seeking writs had to call upon them. President Taft was eager to press for construction of a new building, but White, like Fuller before him, opposed such a move. There is nothing, however, to suggest support for such a move from the other justices. The new building would be secured as another result of the efforts of Chief Justice Taft.

Nor did White take the lead in dealing with the problems of the lower federal courts, awash in litigation arising from World War I, the post-war red scare, and prohibition. Among the most serious problems which could have yielded to a simple solution were the limited and cumbersome procedures for assigning judges from underutilized districts to those whose dockets were swollen. While there was extraordinary interest in and momentum for judicial reform during the second decade of the twentieth century, White did not seize upon it to secure a comprehensive plan to cure the gross inequalities between the districts. He preferred the status quo to the risks of change.[137]

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Conclusions

As Chief Justice, Edward Douglass White was unable to capitalize on his popularity within and outside the Court to maximize the working environment of his colleagues or to reform the structure of the federal courts. Limited managerial abilities, too much deference to tradition, and ill-health hampered his leadership. White's reputation during his lifetime and at his death was far, far higher than it is today While he did not deserve the eulogistic panegyrics occasioned by his death, his judicial career and his work as Chief Justice do not deserve their current obscurity

White was, in effect, the last of the nineteenth century Chief Justices, who viewed their role largely in terms of deciding cases, smoothing the ruffled feathers of colleagues and officers of the Court, and preserving the honor of the office. William Howard Taft would be the first Chief Justice to commit the prestige of his office and a large amount of time to attempting to gain the attention of the other branches of the federal government, so that they would consider the problems and needs of the Supreme Court and the lower federal courts. White would also be the last Chief Justice to carry the heavy burden throughout his tenure of having to write jurisdictional and procedural opinions. The certiorari jurisdiction created in 1925 would largely free the Chief Justice from his very large share of this work.

Still, White's accomplishments are not negligible. Among twentieth century Chief Justices, his jurisprudential contributions stand near the top. He guided his Court through some of its most tranquil years, internally and externally, of this century, and left it with his personal popularity intact, and the esteem in which the Court was held greater than when he had taken office.

One might speak of White in the terms in which he memorialized Fuller. Then, he had spoken of his predecessor's untiring attention to judicial duty, kindness, gentleness associated with courage, and faith in the wisdom of those who fathered our institutions. It is appropriate to leave the summing-up to William Howard Taft, his friend, the man who appointed and succeeded him, the man whose appointments set the tone for the Court during these years:

For Further Reading:

Only Fred Vinson rivals Edward Douglass White as the Chief Justice whose career is least chronicled. Robert B. Highsaw’s Edward Douglass Whites, Defender of the Conservative Faith (Baton Rouge, La.: Louisiana State University Press, 1981), published last year, is actually a slightly revised version of a doctoral dissertation written more than thirty-five years ago. Sister Carolyn Klinkhamer’s published dissertation, Edward Douglass White, Chief Justice (Washington, DC: Catholic University, 1943) essentially contemporary to Highsaw’s book, is more interesting on the jurisprudence, less so as a biography.

Three of the twelve Associate Justices who served when White was Chief Justice have been especially well-served by biographers. See Merlo Pusey’s two-volume, Charles Evans Hughes (New York: Columbia University Press, 1963), and Alpheus T. Mason, Brandeis, A Free Man’s Life (New York: Viking Press, 1946). The enormous Holmes literature is catalogued in Harry C. Shriver, "What Justice Holmes Wrote; and What Has Been Written About Him" (Potomac, Md: Fox Hills Press, 1978). For the period under consideration in this article, the reader will find occasional nuggets in Holmes’ published correspondence with Lewis Einstein, Sir Frederic Pollock, Harold Laski, and Canon Patrick Augustine Sheehan. John Hessin Clarke, William R. Day and Joseph McKenna are reasonably well-served by the biographies written by Hoyt Landon Warner, Joseph E. McLean and Brother Matthew McDevitt. The best single source for the remaining Justices is (eds.) Leon Friedman and Fred L. Israel, The Justices of the United States Supreme Court, Their Lives and Major Opinions (New: R. R. Bowker, 1969). See especially Leonard Dinnerstein’s fine portrait of Joseph Rucker Lamar in volume III.

A rapid but helpful overview of White Court jurisprudence can be found in Alfred H. Kelly and Winfred A. Harbison The American Constitution, Its Origin and Development (New York: W. W. Norton & Co., 4^th ed. 1970). The best lengthy treatment is by John E. Semonche, Charting the Future, The Supreme Court Responds to a Changing Society 1890 — 1920 (Westport, Ct.: Greenwood Press, 1978).

Endnotes

1. Leonard Dinnerstein, "Joseph Rucker Lamar," in (eds.) Leon Friedman and Fred L. Israel, The Justices of the United States Supreme Court 1789-1969, Their Lives and Major Opinions (New York: R. R. Bowker, 1969), III, 1973 at p. 1980.
2. William Howard Taft to Charles P. Taft, Dec. 11, 1910, quoted in Daniel S. McHargue, "President Taft's Appointments to the Supreme Court," 12 J. of Pol. 478, at p. 502.
3. Ibid., p. 507.
4. James F. Watts, Jr., "Horace H. Lurton," in Friedman and Israel, The Justices of the United States Supreme Court, supra n. 1, III, 1845 at p. 1848.
5. Ibid., p. 507.
6. John E. Semonche, Charting the Future, The Supreme Court Responds to a Changing Society, 1890-1920 (Westport, Ct.: Greenwood Press, 1978, p. 293.
7. 230 U.S. 352 (1913).
8. Houston, East & West Texas R.R. v. United States, 234 U.S. 342 (1914).
9. See, e.g., Bailey v. Alabama, 219 U.S. 219 (1911); Truax v. Raich, 239 U.S. 33 (1915).
10. See M. Paul Holsinger, "The Appointment of Supreme Court Justice Van Devanter: A Story of Political Preference," 12 AJLH 324 (1968).
11. William Howard Taft to W. H. Sanborn, Dec. 15, 1910, quoted in Alexander M. Bickel, "Mr. Taft Rehabilitates the Court," 79 Yale L. J. 1, at p. 39 (1969).
12. See, e.g., David Burner, "Willis Van Devanter," in Friedman and Israel, The Justices of the United States Supreme Court, supra n. 1, III, 1943.
13. Edward Lowry, "The Men of the Supreme Court," 27 World's Work 529 at p. 632 (April 1914).
14. Leonard Dinnerstein, "Joseph Rucker Lamar," in Friedman and Israel, The Justices of the United States Supreme Court, supra n. 1, III, at p. 1973..
15. Ibid., pp. 1973-74.
16. 236 U.S. 1 (1915).
17. Semonche, Charting the Future, supra n. 6, at p. 433.
18. Fred L. Israel, "Mahlon Pitney, in Friedman and Israel, The Justices of the United States Supreme Court, supra n. 1, III, 1999, at p. 2009.
19. Edward Lowry, "The Men of the Supreme Court," supra n. 13, at p. 651.
20. James F. Watts, Jr., "Joseph McKenna, in Friedman and Israel, The Justices of the Supreme Court of the United States, supra n. 1, III, 1717 at p. 1727.
21. See John E. Semonche, Charting the Future, supra n. 6 at pp. 217, 243, 372.
22. Edward Lowry, "The Men of the Supreme Court," supra n. 13 at p. 631.
23. Oliver Wendell Homes to Lewis Einstein, June 24, 1911, in (ed.) James Bishop Peabody, The Holmes-Einstein Letters (New York: St. Marti