Vol. 4 No. 12 (December, 1994) pp. 165-170

A MUTED FURY: POPULISTS, PROGRESSIVES, AND LABOR UNIONS CONFRONT THE COURTS, 1890-1937 by William G. Ross. Princeton: Princeton University Press, 1994. 339 pp. Cloth.

Reviewed by A. E. Keir Nash, Departments of Political Science, Black Studies, & History, University of California at Santa Barbara.

This book is a useful history of efforts to curb Supreme Court constitutional review during the longest period of sustained criticism of its activist jurisprudence. That period began, two years into Democrat Melville Weston Fuller's chief justiceship (1888-1910), with CHICAGO, MILWAUKEE, AND ST. PAUL RAILWAY V. MINNESOTA (striking down as violative of due process Minnesota's omission in awarding rate-setting powers to its railroad commission of any provision for judicial review of the commission's orders) and terminated, six years into Republican Charles Evans Hughes' chief justiceship (1930-1941) with his and Owen Roberts' 1937 "switch in time that saved nine."

What the book does it does well. That is covering thoroughly the many proposals, as well as Congress' and the legal elite's reactions (including some of the Justices,' particularly Taft's). Another virtue is that its analysis proceeds aware of post-1965 scholarship in legal history, of recent American historiography about the Progressive Era, and of the past quarter-century's law professors' debates about constitutional interpretation. Ross' book is scholarship NOT penned in the same vacuum of awareness about what's going on elsewhere wherein too much recent political scientists' constitutional-lawyering- without-a-license takes place. Especially with respect to the two historical subfields mentioned, reading Ross's book should be profitable to political-scientists-in-law of the sort whom Martin Shapiro recently described [Finifter (ed.), 1993] as no longer talking to American politics specialists, and to those, I might add, who still thrill to yesteryear's "Nachklang" of Corwin's and Pritchett's hoofbeats and so perpetuate as if holy in political science-in-law the historical analytic paradigms of New Deal and Legal Realist scholarship. Ross' references are a good short list of what needs to be read. And, a number of the incidents that Ross disinters offer nice pedagogical fodder for any political scientist teaching constitutional law regardless of scholarly persuasion -- e.g., Taft's comments on Brandeis and Holmes at p. 228, T.R.'s assertions about reforms "which every other civilized nation takes as a matter of course" at p. 140, and contemporary political perspectives on MEYER V. NEBRASKA, PIERCE V. SOCIETY OF SISTERS, and WOLFF PACKING that I think have been largely flattened or forgotten as the Normalcy Twenties recede from our vision (at pp. 246-249). Relatedly, how many of us remember either that Frankfurter, as law professor, wanted in 1924 to get rid of the XIVth Amendment's due process clause altogether (see p. 291) -- as distinct, one surmises, from utilizing it later, as Justice, in order to avoid untoward extension of criminal trial rights -- or Harold Ickes' definition of a liberal as one

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"who wants to reach his objective by methods that are so impracticable as to be self-defeating" (p. 318)? After the 1994 offyear elections sweeping out the more-progressive, Congress- dominating party (oddly reminiscent of the 1874 elections' left- to-right thrust, but with the party labels reversed), some old observations that Ross rebirths seem usefully in point.

What A MUTED FURY does not do, however, is tantalizing -- chiefly on two counts. One is stopping the analytic penetration short of explaining the weird regularity of the point at which the various efforts failed (always somewhere just around first base) even when a particular reform was given a pretty good oomph in the press. An example was, after ADKINS V. CHILDREN'S HOSPITAL [1923, striking down minimum-wage legislation for women in the District of Columbia], Idaho Senator William Borah's proposal for requiring a minimum 7-justice majority to invalidate a Congressional act and the Hearst papers' simultaneous attack on Taft (though he had himself dissented from ADKINS) urging his resignation for accepting a $10,000 per year annuity from the Carnegie estate. Yet Progressive powerhouse Borah's proposal eventually fared little better than the court-curbing proposals of more marginal characters on the political scene such as James Weaver, 1880 Greenback and 1892 Populist presidential candidate.

Why should this have been? Here Ross is not very informative and leaves interesting related questions unexplored. Thus, once-prominent North Carolina Chief Justice Walter Clark leaps from the obscurity to which later generations assigned him and becomes a major protagonist in the narrative from the 1890s to his death during Coolidge's presidency. But Ross never gets at the obvious curiosities of the situation: Why during the whole timespan did only one State Chief Justice take this role? Did Clark's views relate to the peculiarities of Progressivism in the region that had recently lost its peculiar institution (then no more remote in time than Kennedy's Presidency from us)? That was the kind of Progressivism that could initiate universal public education throughout Dixie at the same time that it abetted driving blacks from the polls, just as Virginia-born Woodrow Wilson first segregated federal government employees' dining rooms, integrated during the preceding fifty years. Such Progressivism condoned the early 20th century South's segregationist tendencies, though not all its farthest legislation. (Thus, the Georgia supreme court struck down in CAREY V. ATLANTA a block-by-block housing-segregation law prior to the U.S. Court's doing so in 1917 in BUCHANAN V. WARLEY). Did none of Clark's fellow state judicial leaders share his views? Was he thought a crank? What links existed between States' rights opposition to substantive due process doctrine and attitudes to federal judicial holdings concerning the States' race legislation? Both issues travelled with heavy considerations-of-federalism baggage. \ Ross's analysis of reformists usually stops short of linking systematically their proposals either to their broader political beliefs as a whole spectrum or to their individual psychologies. One comes away with a set of reformist "talking heads." One is left with the unexplained anomaly of so many

Page 167 follows: reform proposals cut short at such similar points in the political process. The anomaly violates any notion of normal distribution rather as does the Lower 48 States' peculiar height-distribution of mountains (over 50 between 14,000 and 14,500 feet high, and 0 reaching 15,000 feet). Possible, but not plausible. The reason there is not more explanation is, I suspect, the same as the reason underlying the second count on which A MUTED FURY is tantalizing. Although Ross is aware of recent historical scholarship, he does not perform the needed analytic two-step. That would be, one, sorting out the internal conflicts within this scholarship and the conflicts between it and the older historical scholarship, and two, assessing where, in relation, "his" data thrusts. Accordingly, Ross is never clear how much he agrees with John Semonche's and Mel Urofsky's revisionist views of the early 20th century Court "as progressive as most reformers could desire" (Urofsky 1983), or with Owen Fiss's and Loren Beth's views, closer to the older Progressive historians. Ross adopts views as convenient background perspective at any given point in the narrative -- not in any conscious opportunistic fashion, but rather because he apparently doesn't like to bite. He prefers to tell -- for the greater part within the Progressive historiographical tradition.

One consequence is the tantalizing second count. Ross doesn't plumb the extent of dissent within the Supreme Court and of judicial change between 1880 and 1910. Starting at 1890 misses the differences between Justices of, say, 1882 and 1898. "His" Supreme Court is the older standard one wherein David Brewer always formalistically pushes substantive due process on behalf of big business. It's not the Court wherein Brewer prioritizes interests explicitly and differently, as when putting education's interests ahead of railroad interests and obligations to Indians ahead of both in MINNESOTA V. HITCHCOCK (1902):

"The interests of public schools have always been considered paramount to those of railroad companies in grants made to aid in the construction. The one speaks for intellectual, the other for material, development." But, "in some instances, and this is one....contrasting the two policies...in respect to pubic schools and...care of the Indians...we are called upon to uphold the rights of Indians,... otherwise...wholly lost without compensation...."

Ross's is the Court wherein Henry Billings Brown upholds State segregation laws as in PLESSY. It's not the Court wherein Brown [who later said Harlan's PLESSY dissent might have been right] objects to U.S. army maltreatment of Indians, as in CONNERS V. U.S. (1901):

"...one of the most melancholy of Indian tragedies -- shocking story of nearly 1,000... Northern Cheyenne... removed from the Red Cloud reservation in Nebraska...to Fort Reno in Indian Territory...troops fired upon them [though] up to this time they had committed no atrocity, were in amity

Page 168 follows: with the United States, and desired to remain so.....after[wards]...their flight was characterized by the usual excesses of Indian warfare.... While the ghastly facts ... appeal strongly to the generosity of Congress to recompense those who have suffered by the inconsiderate and hasty action of the troops in driving these Indians into hostility, they afford no ground whatever for a judgment against the tribes to which these Indians originally belonged, but from which they had separated.... In fact, it would be highly unjust to add to their manifest sufferings the payment of these damages from their annuities...."

Ross has no measuring device for determining where the turn- of-the-century Court continued, and where it departed from earlier, jurisprudence as the older Justices died. Yet, during the very post-Civil War era when post-1965 scholarship, analyzing largely "ex gratia Horwitz" [1977; 1992] in terms of a dichotomous "formalist/instrumental" model of Court behavior, argues formalism took hold, policy arguments bloom among the Justices about the distributive fairness of the terms of American industrialization. In the 1880s a tug of war began between Justices supporting and Justices desirous of undermining the fellow servant rule. See Field's 5-4 majority opinion, undermining, in C. M. & ST. P. R.. V. ROSS (1884). There was unanimous rejection of corporate arguments that it was unreasonable, respecting passengers, to hold railroads to "the highest possible degree of care and diligence, regardless of the kind of train...." (93 US 295). In INDIANAPOLIS AND ST. L. RR. V. HORST, the Independence Centennial Year Court was as hostile as any Jeffersonian agrarian to the railroad's effort to overturn a damage award to a Pennsylvania farmer. Travelling on a freight train with his cattle, he had been told by the conductor to leave the caboose as it was about to be decoupled and had been injured when the train jerked. Said Justice Noah Swayne, in perhaps the best line of his career, "Life and limb are as valuable, and there is the same right to safety, in the caboose as in the palace car.... The rule of law has its foundation deep in public policy. It is ... sanctioned by the plainest principles of reason and justice. It is of great importance that the courts of justice should not relax it." [93 US 296.]

Repeatedly, in this period the Court sought to diminish the "rawness" of "raw capitalism." Where the Justices saw malfeasance of the Age of the Barbecue sort, they tended to come down hard -- e.g., in dealing with Civil War profiteers -- and contrariwise to favor settlers and small miners. Take, thus, just two volumes of the Lawyers' Edition, #22 and #27, from the Waite Court (1874-1888). In volume #22 the Court socks it to a defective bridge builder (FLORIDA RR V. SMITH AND LATROBE); rejects a corporate-favoring English decision re ship-collision- damages, for not putting liability where the fault really lay (THE STEAMSHIP PENNSYLVANIA V. TROOP); sticks it to a horse- racing gambler (TRAVELLER'S INSURANCE V. SEAVER); prevents Indians' cutting federal trees to sell to 3rd parties for a profit, while permitting Indians' cutting to enhance reservation- lands' agriculture (U.S. V. COOK); and undoes a Louisiana railroad

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fraud scheme (JACKSON V. LUDELING, whose defendant in error was, though the record doesn't say so, Chief Justice of the Louisiana Court and, in interesting combination, an integration proponent.

In volume #27, the Court defends "the immense forest lands of the Government... the finest forests in the world.... [against] the lawless depredator who destroys and sells for profit" (Miller, in BOLLES WOODEN WARE V. U.S.; abates railroad pollution of residential neighborhoods (BALTIMORE & POTOMAC RR V. FIFTH BAPTIST CHURCH -- Field: "no legislature has a right to establish a private nuisance"); and reiterates tough standards of liability to passengers (FARLOW V. KELLY) and others injured by careless corporations. See thus STEAMSHIP NEVADA V. QUICK, holding a steamship liable when its propeller suction, while backing out of New York Harbor without a tug, broke the moorings of a smaller boat. Justices were plainly conscious of public policy ramifications. Sometimes [contrary to Horwitz] their reasoning was about as "balancing" and "non-categorical" as could be. Typical was Bradley's in STEAMSHIP NEVADA, viewing the liability issue as a policy question.

It... is asked by her counsel, whether a steamship is to be precluded from the use of her own means of locomotion? ... If, indeed, the action of her propellers is such as to cause unavoidable injury...she might justly be.... This is no more than is required in analagous cases. Railroad companies are compelled to slacken .. speed of their trains in passing through cities.... Incidental inconveniences, it is true, attach to... many... great improvements of the age.. that the public may have the benefit.... Almost every new machine inflicts loss of employment upon some portion of the laboring class, which are thus obliged to seek other fields of industry.... The vast power and speed of the modern locomotive engine, carrying its thousand passengers..., require the private carriage...to await its passage.... But whilst... unavoidable inconveniences must be submitted to,... there still remains the duty of so... operating... as to do the least possible injury consistent with the fair attainment of... substantial benefits. .... The ocean steamer is one of the great inventions of the century, and one of the advanced instrumentalities of modern civilization; but whilst it may freely exercise its powerful propeller and sport its leviathan proportions... in deep and open waters, it is justly required to observe extraordinary care... when surrounded by feebler craft in a crowded harbor...."

Why is all this relevant to the job that Ross might have done? Because to ignore all this is to ignore the very complexity of the Court's policy-making, much of which may have amounted to "deposits" in its bank account of public goodwill, deposits partially offsetting the "withdrawals" of the pro- business decisions that Ross covers fully and perhaps diminishing the force of court-curbing proposals.

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References:

Morton Horwitz: 1977. THE TRANSFORMATION OF AMERICAN LAW, 1780- 1860. Harvard University Press.

______________1992. THE TRANSFORMATION OF AMERICAN LAW, 1870- 1960. Oxford University Press.

Martin Shapiro, "Public Law and Judicial Politics," in Ada Finifter (ed.), THE STATE OF THE DISCIPLINE II (Washington: APSA, 1993).

Melvin I. Urofsky, "Myth and Reality: The Supreme Court and Protective Legislation in the Progressive Era," YEARBOOK 1983 SUPREME COURT HISTORICAL SOCIETY, p. 55.

Copyright 1994