Vol. 5 No. 11 (November, 1995) pp. 259-262

THE CHIEF JUSTICESHIP OF MELVILLE W. FULLER: 1888-1910 by James W. Ely, Jr.. Columbia, South Carolina: University of South Carolina Press, 1995. 248 pp. Cloth $49.95.

Reviewed by David Schultz, School of Law, University of Minnesota.

Chief Justice Fuller and his Court are usually relegated to one of two legacies. One is simply to dismiss as intellectually unimportant as compared to the courts of Marshall, Warren, or even Hughes. A second legacy is to described the Fuller Court as a conservative probusiness and racist Court that authored both LOCHNER v. NEW YORK and PLESSY v. FERGUSON. Such decisions have relegated the Fuller Court to a place of scorn and derision among many scholars.

Ely's new book offers a very sympathetic reappraisal of a much misunderstood Chief Justice and his Court, seeking to place both in different perspective. According to Ely, "Fuller and his colleagues were genuinely devoted to the preservation of liberty in a changing society," (p. 79), yet that conception of liberty significantly departs from contemporary understandings of the term. Instead, Fuller and his Court understood liberty primarily in economic terms, where the preservation of liberty meant limiting government's ability to interfere with one's economic activity.

If Ely's book were to stop with this thesis, few would disagree, contending that such devotion by Fuller and his Court to economic rights confirms his probusiness bias. Yet Ely moves beyond simply noting the sympathies of the Fuller Court, directing the book more to explaining the historical context and reasons for the decisions rather than simply the results.

The book opens with a biography of Fuller, noting that even at the time of his appointment by Cleveland he was described by many as the least publicly known appointment to the Court. His career prior to the Court was in a corporate and general law practice in Chicago, and his political experience was that of a supporter of Stephen Douglass, Grover Cleveland, and the Democrats of Illinois. As Ely describes it, even prior to ascending to the Court, Fuller was on record as opposing all types of governmental paternalism, favored overall limited government, yet embracing the concept of federalism and state authority. These are Fuller's key constitutional values, and they were to structure his subsequent Court decisions.

During his tenure as Chief Justice, Fuller presided over a Court with a constantly changing membership that totaled nineteen different Justices during a twenty-two year period. Ely describes Fuller's main accomplishment on the Court in terms of his work as an administrator and consensus builder, noting that the Chief Justice never did gain the "intellectual ascendancy over his associates." (p. 70) Instead, in many cases, Fuller often let other Justices write for the Court even in the many situations where he otherwise agreed with the results or arguments articulated.

Ely argues that during Fuller's Chief Justiceship the Court witnessed many changes in society and constitutional thought. Historically, it was a time when the era of laissez-faire economics and individualism were being undermined by the emergence of large commercial enterprises. Ely contends that the chief failure of the Fuller Court was the inability to recognize this change in the economy (p. 81) and how the Constitution needed to adapt to the new demands for social legislation and economic regulation. Hence, many of its most famous decisions striking down economic regulation are premised upon this commitment both to limited government and the preservation of economic individualism.

Economic issues are addressed in detail in chapters three, four, and five. These chapters make up the core of the book, and they cover the usual ground of cases including POLLACK v. FARMER'S LOAN AND TRUST, PLUMLEY v. MASSACHUSETTS, and IN RE DEBS. In these chapters Ely responds to critics who describe the Fuller Court as being synonymous with Lochnerism and Social Darwinism. Four arguments are offered to critics who claim that Fuller Court was simply articulating laissez-faire economic theory. One, Fuller and most of the Justices on his Court were educated prior to the time the doctrines of Darwin and Spencer were developed or even well known in the United States. Given that, there is no evidence that the views of either thinker or of the ideas they expressed had socialized members of the Fuller Court or otherwise had a direct influence upon the decision making of the Justices.

Two, LOCHNER V. NEW YORK was not typical of most of the Fuller Court's Contract Clause and economic regulation cases. The Fuller Court actually upheld far more economic regulation than it struck down. This deference to economic regulation was consistent with Fuller's support for federalism and state authority.

Three, Ely argues that during this era the business community was not of one mind when it came to economic regulation. (p.75) There were cases where some businesses supported some types of regulation or situations where specific cases pitted one type of economic entity against another and the two had contrasting positions on regulation. Hence, to say that Fuller Court decisions were probusiness misses the complexities of the different interests businesses had and how many decisions did go against some specific economic interests.

Finally, Ely argues that there is no evidence that the Fuller Court Justices were "consciously" seeking to articulate a probusiness agenda. (p. 75) Ely shows that lacking in earlier critiques of the Fuller Court is a clear demonstration of how Justices were consciously influenced by specific business attitudes and how those attitudes influenced outcomes in specific decisions.

The remainder of the book moves quickly through the topics of criminal justice, civil rights and liberties, governmental structure, and private government. These chapters are brief, especially when it comes to civil rights and liberties and criminal justice, in part because there were very few decisions on these topics by the Fuller Court. This was the case because with the exception of the Just Compensation Clause of the Fifth Amendment (which the Fuller Court incorporated to the states), none of the other provisions of the Bill of Rights had been incorporated to the states. This meant that the Court was unable to address Bill of Rights violations as they applied to the states, and since the federal government was undertaking little domestic legislation, there were few opportunities to address Bill of Rights complaints at this level either.

However, Ely does discuss race, and concedes that Fuller shared then prevalent attitude regarding Blacks as second class citizens. (p. 155). Ely also discusses cases of free speech, explaining how the Court in PATTERSON V. COLORADO (1907) upheld a contempt conviction of a newspaper that criticized the Colorado Supreme Court. These cases, and others noted by the author confirm the unflattering reputation the Fuller Court has received on these matters. However, Ely notes that while the Fuller Court in the Insular Cases seemed to set separate rules for how the United States governs it territories, Fuller himself felt that the standards used by the government to government its territories must be the same as those found in the rest of the Untied States. Fuller's views in these cases reveal a concern for individual rights often overlooked by constitutional scholars.

In offering a final appraisal of the Fuller Court, Ely argues that many of its decisions have had a long term impact. One, the Fuller Court originated the idea of using the Fourteenth Amendment to incorporate the Bill of Rights to the states. Two, the idea of heightened scrutiny was also developed and refined by it. Three, many of the Fuller Court precedents in foreign affairs, private litigation, etc., remain the basis of contemporary case law. Finally, the Fuller court, for good or bad, defined the Supreme Court as a major policy maker, laying the ground work for subsequent activist Courts in the areas of civil rights and liberties.

Ely's historical treatment of Fuller and the Fuller Court goes out of its way to be fair and insightful. It moves beyond simple ideology or distaste for the Court's opinions in an attempt to offer an assessment of its views. One of the virtues of the book is the effort to move beyond economic regulation and into other areas of private law in order to paint a more fully developed picture of the Court. While the Fuller Court is most famous for its economic cases, the Court did decide issues beyond that, and Ely is able to explain why the economic decisions came out the way they did by placing them in the context of many other Fuller Court decisions and past precedents that the Fuller Court inherited.

There are some problems with the book or claims that could be tested better. For one, in arguing that there is no proof that Social Darwinism or a probusiness attitude was a conscious force influencing the Fuller Court, Ely raises the issue of how to address ideology as an influence upon the Court. Perhaps one way to tackle the issue is by a statistical analysis of the various decisions of the Fuller Court, controlled by issue, litigant, etc. Such a study might go far in clarifying how political the outcomes of the Fuller Court were and whether ideas associated with Social Darwinism had an impact upon the Court or individual Justices. In effect, while the Warren, Burger, and Rehnquist Courts have been subject to this type of statistical analysis, there is no reason why the Fuller Court could not also have been subject to a similar test. Granted Ely is a historian and not a statistician, but providing this type of analysis, as well as simply providing statistics on case selection, or how many of what types of cases were upheld, overturned, etc., in specific issue areas would go far in clarifying and supporting many of the author's claims.

Finally, the book could have been strengthened by devoting more attention to Fuller himself. While the book is supposed to be about the Chief Justiceship of Fuller, often times too little discussion is directed to Fuller himself and more to his Court and Justices. If Ely wishes to argue that one of Fuller's great accomplishments is his administrative skills and ability to build coalitions and form consensus, either too little is devoted to either subject or several of the issues the author does discuss suggest that Fuller was not always in control of his own Court.

Despite these concerns, THE CHIEF JUSTICESHIP OF MELVILLE W. FULLER: 1888-1910 is an important book in recent efforts to reexamine the Fuller Court. It forces readers to rethink many of their assumptions about the Fuller Court and to understand the basis for how Fuller and his Supreme Court occupied an important place in American legal and political history.

References:

IN RE DEBS, 158 U.S. 564 (1895)

LOCHNER V. NEW YORK, 198 U.S. 45 (1905)

PATTERSON V. COLORADO 205 U.S. 454 (1907)

PLESSY V. FERGUSON, 163 US 537 (1896)

PLUMLEY V. MASSACHUSETTS, 155 U.S. 461 (1894)

POLLACK V. FARMER'S LOAN AND TRUST, 157 U.S. 429 (1895)