The Chief Justiceship of Melville W. Fuller: 1888-1910.

• Author: Rutten, Andrew

By James W. Ely Jr. Columbia: University of South Carolina Press, 1995. Pp. xii, 248. $49.95 cloth.

What better topic for the first volume of a history of the Supreme Court than the Fuller Court? It was, for all intents and purposes, the first modern Supreme Court, the first to regularly decide the sort of cases common today, ranging from appeals of regulatory decisions to claims for civil rights. Moreover, many of its decisions continue to shape constitutional law--for example, Roe v. Wade can be understood only in light of the Fuller Court's decision in Lochner P. New York (1905). According to James Ely, the Fuller Court is also deeply misunderstood. It has traditionally been characterized as knee-jerk antilabor, antiregulation and pro-business, willing to invent doctrines such as dual federalism and substantive due process to justify its prejudices. Ely, in line with recent revisionist scholarship, argues that this characterization is wrong: Fuller and his colleagues were neither as consistently pro-business nor as innovative as the received wisdom suggests. Instead of usurpers, they were honest craftsmen, doing their best to apply a new constitution to a new world.

To support this characterization of the Fuller Court, Ely devotes the bulk of his book, over half of the text, to a careful examination of its decisions. Arranged by topic, his chapters show the Court pursuing the goals traditionally imputed to it, from protecting entrepreneurial liberty to defending the national market. However, Ely's tour also reveals that many of the famous cases are atypical. Looking more widely at the Court's record makes evident that these protections were not absolute; the Court upheld far more regulatory legislation than it struck down. And when it did strike down legislation, it drew on established traditions in American thought, traditions that stressed public purpose, private rights, and antagonism to special interests and wealth transfers and opposed the unlimited power of majorities. The result was a complex and nuanced interpretation firmly grounded in respectable constitutional doctrines.

In correcting the traditional accounts, Ely is careful not to replace demonology with hagiography. He does not idolize the Fuller Court; nor does he apologize for its shortcomings. Indeed, he goes out of his way to point out that the Court's vision of liberty was not ours. Most of its judges had very narrow ideas about which rights were constitutionally...