"The condition of the Supreme Court is pitiable, and yet those old fools hold on with a tenacity that is most discouraging," President WILLIAM HOWARD TAFT wrote in May 1909 to his old friend HORACE H. LURTON. Taft would have his day. One year later, Chief Justice MELVILLE W. FULLER spoke at the Court's memorial service for Justice DAVID J. BREWER : "As our brother Brewer joins the great procession, there pass before me the forms of Mathews and Miller, of Field and Bradley and Lamar and Blatchford, of Jackson and Gray and of Peckham, whose works follow them now that they rest from their labors." These were virtually Fuller's last words from the bench, for he died on Independence Day, 1910, in his native Maine. RUFUS W. PECKHAM had died less than a year earlier. WILLIAM H. MOODY, tragically and prematurely ill, would within a few months have to cut short by retirement one of the few notable short tenures on the Court. JOHN MARSHALL HARLAN had but one year left in his remarkable thirty-four-year tenure. By 1912, five new Justices had come to the Court who were not there in 1909: a new majority under a new Chief Justice.
The year 1910 was a significant divide in the history of the country as well. The population was nearly half urban, and immigration was large and growing. The country stood on the verge of enacting humane and extensive labor regulation. A year of Republican unrest in Congress and THEODORE ROOSEVELT'S decisive turn to progressive agitation, 1910 was the first time in eight elections that the Democrats took control of the House. In the same year, the National Association for the Advancement of Colored People was founded. It was a year of progressive tremors that would eventually shake the Supreme Court to its foundations with the appointment of LOUIS D. BRANDEIS in 1916. But the five appointments with which President Taft rehabilitated his beloved Court between 1909 and 1912 had no such dramatic impact. There was a significant strengthening of a mild progressive tendency earlier evident within the Court, but the new appointments brought neither a hardening nor a decisive break with the DOCTRINES of laissez-faire constitutionalism and luxuriant individualism embodied in such decisions as LOCHNER V. NEW YORK (1905) and Adair v. United States (1908). Taft's aim was to strengthen the Court with active men of sound, if somewhat progressive, conservative principles. Neither Taft nor the nation saw the Court, as both increasingly would a decade later, as the storm center of pressures for fundamental constitutional change.
Taft's first choice when Peckham died in 1909 was his friend Lurton, then on the Sixth Circuit, and a former member of the Tennessee Supreme Court. Lurton, a Democrat, had been a fiery secessionist in his youth, and in his short and uneventful four-year tenure he combined conservationism on economic regulation, race, and labor relations. Taft's second choice was not so modest. When Taft went to Governor CHARLES EVANS HUGHES of New York to replace Brewer, he brought to the Court for the first of his two tenures a Justice who would emerge as one of the greatest figures in the history of American law, and a principal architect of modern CIVIL LIBERTIES and CIVIL RIGHTS jurisprudence. As governor of New York, Hughes was already one of the formidable reform figures of the Progressive era, and his later career as a presidential candidate who came within a whisper of success in 1916, secretary of state during the 1920s, and Chief Justice during the tumultuous years of the New Deal, mark him as one of the most versatile and important public figures to sit on the Court since JOHN MARSHALL.
Taft's choice of the Chief Justice to fill the center seat left vacant by Fuller was something of a surprise, although reasons are obvious in retrospect. EDWARD D. WHITE was a Confederate veteran from Louisiana, who had played a central role in the Democratic reaction against Reconstruction in that state and had emerged as a Democratic senator in 1891. He had been appointed Associate Justice in 1894 by President GROVER CLEVELAND and had compiled a respectable but unobtrusive record in sixteen years in the side seat. He had dissented with able force from the self-inflicted wound of POLLOCK V. FARMERS ' LOAN & TRUST CO. (1895), holding unconstitutional the federal income
tax, and his antitrust dissents in TRANS-MISSOURI FREIGHT ASSOCIATION (1897) and UNITED STATES V. NORTHERN SECURITIES COMPANY (1904) embodied sound good sense. He had done "pioneer work," as Taft later called it, in ADMINISTRATIVE LAW. White had a genius for friendship and, despite a habit of constant worrying, extraordinary personal warmth. OLIVER WENDELL HOLMES summed him up in these words in 1910: "His writing leaves much to be desired, but his thinking is profound, especially in the legislative direction which we don't recognize as a judicial requirement but which is so, especially in our Court, nevertheless." White was sixty-five, a Democrat, a Confederate veteran, and a Roman Catholic, and his selection by Taft was seen as adventurous. But given Taft's desire to bind up sectional wounds, to spread his political advantage, to put someone in the center seat who might not occupy Taft's own ultimate ambition for too long, to exemplify bipartisanship in the choice of Chief Justice, and on its own sturdy merits, the selection of White seems easy to understand.
Along with White's nomination, Taft sent to the Senate nominations of WILLIS VAN DEVANTER of Wyoming and JOSEPH R. LAMAR of Georgia. Van Devanter would sit for twenty-seven years, and would become one of the Court's most able, if increasingly conservative, legal craftsmen. Lamar would last only five years, and his death in 1915, along with Lurton's death in 1914 and Hughes's resignation to run for President, opened up the second important cycle of appointments to the White Court.
The Taft appointees joined two of the most remarkable characters ever to sit on the Supreme Court. John Marshall Harlan, then seventy-eight, had been on the Court since his appointment by President RUTHERFORD B. HAYES in 1877. He was a Justice of passionate strength and certitude, a man who, in the fond words of Justice Brewer, "goes to bed every night with one hand on the Constitution and the other on the Bible, and so sleeps the sleep of justice and righteousness." He had issued an apocalyptic dissent in Pollock, the income tax case, and his dissent in PLESSY V. FERGUSON (1986), the notorious decision upholding racial SEGREGATION on railroads, was an appeal to the conscience of the Constitution without equal in our history. The other, even more...