Fuller Court (1888–1910)

AuthorOwen M. Fiss
Pages1163-1170

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MELVILLE W. FULLER was Chief Justice of the United States from 1888 to 1910. Lawyers and historians know the period, and its significance for constitutional law, but do not

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generally identify it with Fuller's name?and for good reason. He was no leader. Fuller discharged his administrative duties effectively, and in "good humor," to borrow a phrase from OLIVER WENDELL HOLMES, one of his admirers, but he was not an important source of the ideas and vision that shaped the work of the Court.

The year of Fuller's appointment, 1888, was nonetheless an important date in the life of the Court because it marked the beginning of a period of rapid turnover. From 1888 to 1895 there were a considerable number of vacancies, and the two Presidents then in office, GROVER CLEVELAND, a Democrat, and BENJAMIN HARRISON, a Republican?whose politics were conservative and largely indistinguishable?appointed six of the Justices. One was Fuller himself. At the time of his appointment he was a respected Chicago lawyer and, perhaps more significantly, a friend of Cleveland's. The others were DAVID J. BREWER, a federal circuit judge in Kansas; HENRY BILLINGS BROWN, a federal district judge in Detroit; RUFUS PECKHAM, a judge on the New York Court of Appeals; GEORGE SHIRAS, a lawyer from Pittsburgh; and EDWARD D. WHITE, a senator from Louisiana. (LUCIUS Q. C. LAMAR and HOWELL JACKSON were also appointed during this period, but served for relatively short periods.) The intellectual leaders of this group of six were Brewer and Peckham. They appeared in their written opinions as the most powerful and most eloquent, and the Chief Justice usually turned to one or the other to write for the Court in the major cases.

In constructing their majorities, Brewer and Peckham could usually count on the support of STEPHEN J. FIELD (Brewer's uncle), who earlier had achieved his fame by protesting various forms of government regulation in the SLAUGHTERHOUSE CASES and the GRANGER CASES. In the late 1890s Field was replaced by JOSEPH MCKENNA, who was chosen by WILLIAM MCKINLEY, a President who continued in the conservative tradition of Cleveland and Harrison. Another ally of this Cleveland-Harrison group, though perhaps not so steadfast as Field or McKenna, was HORACE GRAY. Gray was appointed in 1881 by President CHESTER A. ARTHUR and served until 1902.

As a result of these appointments, the Court over which Fuller presided was perhaps one of the most homogeneous in the history of the Supreme Court. Even more striking, its composition did not significantly change for most of Fuller's tenure. Fuller died in July 1910, just months after Brewer and Peckham. It was almost as though he could not go on without them. Brown resigned in 1906 and Shiras in 1903, but their replacements?WILLIAM H. MOODY and WILLIAM R. DAY?did not radically alter the balance of power. The only important break with the past came when THEODORE ROOSEVELT appointed Oliver Wendell Holmes, Jr., to replace Gray.

At the time of his appointment, Holmes was the Chief Justice of the Supreme Judicial Court of Massachusetts and had already written a number of the classics of American jurisprudence. Brown described Holmes's appointment as a "topping off." On the Court, however, Holmes played a different role, for he had no taste for either the method of analysis or general philosophical outlook of the Cleveland-Harrison appointees. His stance was fully captured by his quip in LOCHNER V. NEW YORK (1905) that "The FOURTEENTH AMENDMENT does not enact Mr. Herbert Spencer's Social Statics." In this remark Holmes was finally vindicated in 1937 with the constitutional triumph of the New Deal, but in the early 1900s he spoke mostly for himself, at least on the bench, and had no appreciable impact on the course of decisions. No other Justice joined his Lochner dissent.

The other significant presence on the Court at the turn of the century was JOHN MARSHALL HARLAN. He was originally appointed by President RUTHERFORD B. HAYES in 1877 and served until 1911. He is greatly admired today for his views on the rights of the newly freed slaves and on the power of the national government. But, like Holmes, Harlan suffered the fate of a prophet: He was a loner. He had his own agenda, and though he sometimes spoke for the Cleveland-Harrison group, Harlan seemed most comfortable playing the role of "the great dissenter."

At the turn of the century, as in many other periods of our history, the Court was principally concerned with the excesses of democracy and the danger of tyranny of the majority. In one instance, the people in Chicago took to the streets and, through a mass strike, tied up the rail system of the nation and threatened the public order. President Cleveland responded by sending the army, and the judiciary helped by issuing an INJUNCTION. In IN RE DEBS (1895) Brewer, writing for a unanimous Court, upheld the contempt conviction of the leader of the union, and legitimated the use of the federal injunctive power to prevent forcible obstructions of INTERSTATE COMMERCE. For the most part, however, the people fought their battles in the legislative halls, and presented the Court with a number of statutes regulating economic relationships. The question posed time and time again was whether these exercises of state power were consistent with the limitations the Constitution imposed upon popular majorities. Sometimes the question was answered in the affirmative, but the Court over which Fuller presided is largely remembered for its negative responses. It stands as a monument to the idea of limited government.

The most important such response consists of POLLOCK V. FARMERS ' LOAN & TRUST CO. when, in the spring of 1895, the Court invalidated the first federal income tax enacted in peacetime. The statute impose ? percent tax on all

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annual incomes above $4,000, and it was estimated that, due to the exemption, the tax actually fell on less than 2 percent of the population, the wealthy few who resided in a few northeastern states. The tax was denounced by JOSEPH CHOATE, in arguments before the Supreme Court, as an incident in the "communistic march," but the Court chose not to base its decision on a rule that would protect the wealthy few from redistribution. The Court instead largely relied upon that provision of the Constitution linking REPRESENTATION and taxation and requiring the apportionment among the states according to population of all DIRECT TAXES.

The Constitution identified a POLL TAX as an example of a direct tax. It was also assumed by all that a real estate tax would be another example of a direct tax, and the Court first decided that a tax upon the income from real estate is a direct tax. This ruling resulted in the invalidation of the statute as applied to rents (since the tax was not apportioned according to population), but on all other issues the Court was evenly divided, 4?4. The ninth justice, Howell Jackson, was sick at the time. A second argument was held and then the Court continued along the path it had started. Just as a tax on income from real property was deemed a direct tax, so was the tax on income from personal property (such as dividends). This still left unresolved the question whether a tax on wages was a direct tax, but the majority held that the portions of the statute taxing rents and dividends were not severable and that as a result the whole statute would fall. As Fuller reasoned, writing for the majority, if the provision on wages were severable, and it alone sustained, the statute would be transformed, for "what was intended as a tax on capital would remain in substance a tax on occupations and labors."

A decision of the Court invalidating the work of a coordinate branch of government is always problematic. Pollock seemed especially so, however, because the Court was sharply divided (5?4), and even more so because one of the Justices (whose identity is still unknown) seems to have switched sides after the reargument. The Justice who did not participate the first time (Jackson) voted to uphold the statute, yet the side he joined lost. It was no surprise, therefore, that Pollock, like Debs, became an issue in the presidential campaign of 1896, when William Jennings Bryan?a sponsor of the income tax in Congress?wrested control of the Democratic Party from the traditional, conservative elements and fused it with the emerging populist movement. Bryan lost the election, but remained the leader of the party for the next decade or so, during which the political elements critical of the Court grew in number and persuasiveness. By 1913 a constitutional amendment?the first since Reconstruction?was adopted. The SIXTEENTH AMENDMENT did not directly confront the egalitarian issue, any more than did the Court, but simply declared that an income tax did not have to be...

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