Vol. 10 No. 4 (April 2000) pp. 268-272.

THE SUPREME COURT UNDER EDWARD DOUGLASS WHITE 1910-1921 by Walter F. Pratt, Jr. Columbia: University of South Carolina Press, 1999. 296 pp.

Reviewed by Donald Grier Stephenson, Jr., Department of Government, Franklin & Marshall College.

 

Walter F. Pratt's THE SUPREME COURT UNDER EDWARD DOUGLASS WHITE 1910-1921 is the fifth volume to appear in the series entitled "Chief Justiceships of the United States Supreme Court" under the general editorship of Herbert A. Johnson. Previous volumes treat the pre-Marshall (Casto, 1995), Marshall (Johnson, 1997), Fuller (Ely, 1995), and Stone/Vinson eras (Urofsky, 1997). Far briefer than any of the installments in the HOLMES DEVISE HISTORY, books in the Johnson series will enjoy a wider audience and may prove nearly as useful. Pratt's sets a solid standard for those to follow. The author teaches in the law school at the University of Notre Dame. His analysis, familiarity with the literature, and use of sources reflect a footing in political science and history as well.

Imagine a panel at a political science meeting devoted to the U. S. Supreme Court during the tenure of Chief Justice White. Perhaps scheduled for the early Sunday morning slot, the panel would probably attract little interest and might be among those where the participants outnumber the audience. Sparse attendance might be understandable, but, as Pratt's book depicts, a lost opportunity. Yet, for several reasons, the years 1910-1921 routinely rank among the less familiar as a discreet period in Supreme Court history.

White's Court is usually not perceived as synonymous with particular policies (as is the case with the Marshall Court, 1801-1835, or the Warren Court, 1953-1969) or seismic events (as is the case with the Hughes Court, 1930-1941). Much of the Court's work during that time has either fallen from, or was never part of, the political science canon in constitutional law. A search of several casebooks turns up no more than a small handful of decisions rendered while White was in the center chair. Alternatively, the White years are sometimes lumped together with those of its predecessor (the Fuller Court, 1888-1910) and of its successors (the Taft Court, 1921-1930, and the first six years of the Hughes Court to depict the influence of laissez-faire economics and Social Darwinism on judicial decisions. That is easy to do because there appear to be more doctrinal continuities than defining breaks as one chief justice replaced another.

Moreover, if length of tenure provides opportunity for a chief justice to influence the law and the Court, recall that White was not among the longest serving chiefs. Although named an associate justice in 1894 in President Cleveland's second administration, his ten and a half years as chief (1910-1921) place the ninth chief justice exactly ninth in length of service among the sixteen chief justices to date. In judicial history White may be most closely

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linked not with being chief justice but with the opinions he authored as an associate justice shortly after occupying the center chair: DOWNES v. BIDWELL (1901) (one of the Insular Cases), MCCRAY v. U. S. (1904) (the oleomargarine tax case), and his "rule of reason" enunciated in the Standard Oil (1911) and U. S. v. AMERICAN TOBACCO (1911) anti-trust cases. Even his greatest claim to fame as chief justice he owed to President William Howard Taft: White was the first chief selected from the ranks of sitting associate justices. White himself remains the sole subject of only two book-length biographies (Highsaw, 1981; Klinkhamer, 1943), and shares space with his father and a grandfather in a very recent third book (Reeves, 1999).

Neither was White's Court an especially star-studded bench, at least not at that time. Pratt writes that "the lassitude within the Supreme Court itself" was almost as remarkable as the societal changes at work as the White Court began (p. 5). True, of the twelve justices who served with Chief Justice White, John Marshall Harlan I, Oliver Wendell Holmes, Charles Evans Hughes, and Louis Brandeis have been accorded "great" or "near-great" status in surveys of scholars. Yet, of these four, Harlan overlapped White as chief by less than a year, and Hughes and Brandeis served a clear minority of their Court years with White. Only Holmes was with White throughout his entire tenure as chief. Some of the remaining eight at this distance seem either to have left fuzzy impressions (such as William Day, Joseph R. Lamar, Joseph McKenna, and Mahlon Pitney) or to have been deemed "failures" (Willis Van Devanter and James McReynolds).

The White Court may not stand out as a prominent entity for a final reason as well: the second decade of the twentieth century was eventful in ways that had little initially and directly to do with the Supreme Court. So much of vast importance happened outside the Court. The first half of White's tenure witnessed major effects of the Progressive movement on institutions, policies, and processes that included the 16th and 17th amendments to the Constitution, the launch of President Woodrow Wilson's "New Freedom," and the continued nationalization of issues. The second half of White tenure witnessed American participation in the First World War, the aftermath of demobilization, and ratification of the 18th and 19th amendments.

Pratt thus sees "two White Courts, not one." In the first five years, "the justices dealt with few cases that caused them genuine discomfort..." In the next five years, "the justices saw more and more new issues. Their fumbling attempts to deal with those issues showed how new they were and set the stage for other developments in subsequent decades" (p. xviii). Pratt attributes the Court's partial distance from national and international turmoil to the fact that the justices lacked command of their agenda. Not only did White "fail[] to use his position to promote change" in the Court's jurisdiction but "the Court had not been fully included in the Progressives' nationalization of American politics." The result was a large number of "insufferably insignificant cases" each term and a bench that "had neither the time nor the inclination to provide careful analysis of fundamental constitutional issues" (p. 7). The creation of the courts of appeals in 1891 had brought some relief, as did enlargement of certiorari jurisdiction on a few matters that became effective in 1917. However, it would not be until 1925 and the labors of Chief Justice Taft that the Supreme Court could truly become a public law court that focused mainly on matters of its own

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choosing. However, this reviewer could locate no mention of the Act of December 23, 1914. This Progressive era legislation for the first time allowed appeal to the U. S. Supreme Court from the highest court of a state when the state court had ruled in favor of the federal claim.

THE SUPREME COURT UNDER EDWARD DOUGLASS WHITE does not radically alter prevailing perceptions of the White years; rather, it refines, refocuses, and illuminates them. For instance, Pratt includes sufficient material to lend new appreciation to the judicial contributions of lesser-known figures such as Day, Lamar, Horace Lurton, McKenna, Pitney, and Van Devanter. There is also ample evidence that White was a reasonably effective, but not a great, Court leader. Pratt applies the standard reference points on Court leadership (Danelski, 1974), and gives White high marks as a social leader. He was amiable and attuned to the feelings and needs of his colleagues. With Holmes he had an especially warm relationship that may have impressed others because they had fought on the opposite side in the Civil War. White had that valuable and enviable quality of personality, whether one wants to be a leader in politics, business, or academe that made it difficult for others to dislike him. Colleagues might disagree, but only with great effort could they hold him in disdain.

It may be in White's case that the other reference point - task leadership - breaks down. As suggested some years ago (Seddig, 1991; Stephenson, 1973), task leadership in the context of the Supreme Court seems to consist of at least two components: managerial leadership and intellectual leadership. The first encompasses all that the chief justice does to keep the Court abreast of its docket and functioning smoothly as an institution. The second points to one or more individuals on the Court as sources of ideas and strategy who can shape doctrinal development. Pratt's account gives little indication that White excelled in intellectual leadership. Others may have picked up that duty. With respect to managerial leadership, the estimate seems mixed. With respect to day-to-day business ("emptying the in-basket," as a colleague of this reviewer sometimes says), he did well. He strove gallantly to keep the Court moving through its docket even though the volume of business was such that the Court usually appeared to be playing a game of judicial catch-up. Until his health began to fade, for example, White set an example of being one of the most prolific justices (usually in a race with Holmes) in terms of generating opinions of the Court. His style also reflected a continuing desire "to stop 'this dissenting business'" not only as a way of presenting a more unified bench but as a way of avoiding impediments to the disposition of cases (p. 229). Only in the 1919-1920 Term when his eyesight and hearing had deteriorated badly did the percentage of unanimous decisions drop to as low as 66 percent (p. 227). Yet with respect to the broader problem of jurisdiction and the Court's place in the political system, White lacked vision or initiative or both. "[H]e left ... without having shown an inclination to use the office of chief justice to lobby Congress or otherwise seek benefit for the Court" (p. 263).

The book's development proceeds chronologically, not topically, thus departing from the format found in other volumes in the Johnson series. Sandwiched between an introduction (pp. 1-24) and a conclusion (pp. 263-264) are eleven chapters that begin with "The First Term" and "The 1911-1912 Term" and conclude with "The 1919-1920 Term" and "The Final Term." The

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advantage of this format is obvious: the reader witnesses the work of the Court as it occurs. This is not to say that each chapter, focused as it is on a particular term, unfolds chronologically, but that in a given term the reader senses the variety of issues that the justices confronted and how they resolved them. Each chapter begins usually with a discussion of membership changes and a managerial overview of the docket, before moving into a review of the substance of the Court's work. By this reviewer's court, the shortest of the term chapters (IV, on the 1913-1914 Term) reviews 23 individually or collectively decided cases in its 15 pages. The longest of the term chapters (VII, on the 1916-1917 Term) reviews 37 such cases in its 30 pages. The result is a clearer sense of the differences of substance and pace between terms. And most readers will appreciate the generous presence of what has become a rare occurrence in book publishing: all citations and explanatory notes appear at the bottom of the page.

Likewise, the disadvantage of a term by term format should be obvious: anyone opening this volume to see what the White Court did with respect to, say, civil rights or federalism (neither of which appears as an entry in the meagerly notated index) or other topics may face an uphill climb. Political scientists are accustomed to trade-offs, but an index (pp. 291-296) that contains no case names is hardly offset by an appendix ("Table of Cases," pp. 265-277) that contains no page references to the book. Thus, suppose one wants to locate Pratt's analysis of WEEKS v. UNITED STATES (1914), an early statement of what has become the much discussed, much praised, and much maligned exclusionary rule. WEEKS appears in the Table of Cases (p. 277), but without pages references to the book. A look in the index under "exclusionary rule" (p. 292) points the reader to pages 255-57. The only mention of WEEKS on those pages occurs in footnote 39 as a citation. On the chance that the index inadvertently missed the page or pages where WEEKS was discussed, this reviewer returned to the chapters surveying the 1913-1914 and the 1914-1915 terms but, alas, could find no mention of the case there. So apparently the book omits discussion of this important Fourth Amendment holding. That may be an understandable omission that is surely the author's call, but finding that it is an omission consumes unnecessary time that could have been saved by a functional Table of Cases. Each of the other volumes in this series displays a table of cases with page references; otherwise, the table is useless. Correction in an additional printing or in a revised edition of what must be an oversight would make the volume considerably more useful as a reference.

Pratt has written an important volume for students of Supreme Court history. It demonstrates how, as he writes, the Court "tested old doctrines for suitability in new circumstances." Also, when it found various doctrinal categories inappropriate for a changing day, the justices "began to test newer categories as [they] followed the rest of the nation into a modern world" (pp. 263-264). The operative word in Pratt's sentence may be "followed." That word may best fit the era of judicial history called the White Court, and may not be a poor epithet for any court.

REFERENCES:

Casto, William R. 1995. THE SUPREME COURT IN THE EARLY REPUBLIC: THE CHIEF

JUSTICESHIPS OF JOHN JAY AND OLIVER ELLSWORTH. Columbia: University of South

Carolina Press.

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Danelski, David. 1974. "The Influence of the Chief Justice in the Decisional

Process." COURTS, JUDGES, AND POLITICS, 2d ed., Walter F. Murphy and C.

Herman Pritchett, eds. New York: Random House.

Ely, James W., Jr. 1995. THE CHIEF JUSTICESHIP OF MELVILLE W. FULLER 1888-

1910. Columbia: University of South Carolina Press.

Highsaw, Robert B. 1981. EDWARD DOUGLASS WHITE: DEFENDER OF THE CONSERVATIVE

FAITH. Baton Rouge: Louisiana State University Press.

Johnson, Herbert A. 1997. THE CHIEF JUSTICESHIP OF JOHN MARSHALL 1801-1835.

Columbia: University of South Carolina Press.

Klinkhamer, Sister Marie Carolyn, O.P. 1943. EDWARD DOUGLASS WHITE: CHIEF

JUSTICE OF THE UNITED STATES. Washington, D.C.: Catholic University of

America Press.

Reeves, William D. 1999. PATHS TO DISTINCTION: DR. JAMES WHITE, GOVERNOR E.D.

WHITE, AND CHIEF JUSTICE EDWARD DOUGLASS WHITE OF LOUISIANA. Lafayette:

Center for Louisiana Studies, University of Louisiana at Lafayette.

Seddig, Robert G. 1991. "John Marshall and the Origins of Supreme Court

Leadership." JOURNAL OF SUPREME COURT HISTORY. 63.

Stephenson, D. Grier, Jr. 1973. "The Chief Justice as Leader: The Case of

Morrison Remick Waite." WILLIAM AND MARY LAW REVIEW. 14: 899.

Urofsky, Melvin I. 1997. DIVISION AND DISCORD: THE SUPREME COURT UNDER STONE

AND VINSON, 1941-1953. Columbia: University of South Carolina Press.

CASE REFERENCES:

DOWNES v. BIDWELL, 182 U.S. 244 (1901).

MCCRAY v. UNITED STATES, 195 U.S. 27 (1904).

STANDARD OIL CO. OF NEW JERSEY v. UNITED STATES,. 221 U.S. 1 (1911).

UNITED STATES v. AMERICAN TOBACCO CO., 221 U.S. 106 (1911).

WEEKS v. UNITED STATES, 232 U.S. 383 (1914).

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Copyright 2000 by the author, Donald Grier Stephenson, Jr.