What Do We Want in a Supreme Court Justice?

The February 2016 death of Justice Antonin Scalia renewed a debate that occurs whenever a vacancy arises on the US Supreme Court. What do we want in a justice’s philosophy and temperament?

Here’s a radical idea: how about a justice who interprets the Constitution according to its actual words and what they meant when the Founders wrote them?

That was Scalia’s view, and it’s mine as well. Anything less opens a can of worms. If words don’t mean anything or can be trumped by somebody’s personal agenda, then why have a Constitution in the first place?

The Fuller court stretched neither the law nor the Constitution beyond what the words say.

If I were choosing a justice to succeed Scalia, I would pick someone much like him or, better yet, someone just like the best chief justice the Supreme Court has ever had: Melville Weston Fuller.

It’s a sad commentary that in the mainstream media, courts are tagged with such confusing and superficial labels as “conservative” or “liberal” — terms loaded with political baggage and often manipulated by those with an ax to grind. I prefer more clarifying questions:

• Does a court interpret law or manufacture it?
• Does a court apply the Constitution according to what its text says, or does it abandon the text to accommodate current whims, trendy ideologies, or alleged needs of the moment?
• Were our liberties more or less secure after the court did its work?

The Fuller court, encompassing a parade of justices who came and went during Fuller’s 22 years as chief, was not consistent on all counts. But unlike any subsequent court, it stretched neither the law nor the Constitution beyond what the words say.

When it found law to be in conflict with the Constitution, it usually sided with the latter, because liberty under the rule of law was its highest priority. It upheld the importance of a limited federal role, strengthened the states’ role in our federal system, and defended contract and property rights against a rising tide of egalitarian agitation.

Melville Weston Fuller was born in Augusta, Maine, in 1833. Both sides of his family were staunch Jacksonian Democrats — hard money and a small federal government being the foremost principles they embraced. After graduation from Bowdoin College in 1853, Fuller was admitted to the bar in 1855. A year later, he started a successful law practice in Illinois, where he would reside until his elevation to the Supreme Court by President Grover Cleveland in 1888.

As chief justice, Fuller administered the oath of office to five presidents: Benjamin Harrison, Grover Cleveland, William McKinley, Theodore Roosevelt, and William Howard Taft.

Back in 1862, as a one-term Democratic Party legislator in Illinois’s lower house, Fuller spoke out against government encroachments on liberty no matter their source. He condemned the Lincoln administration’s arbitrary arrests, suspension of habeas corpus, and other wartime indiscretions as assaults on the Constitution’s guaranteed liberties. He opposed both secession and slavery, but he didn’t believe in quashing dissent and due process to vanquish them.

As an activist and adviser to candidates for national office, Fuller opposed protectionism as special-interest legislation that hurt consumers. He decried irredeemable paper money as a form of theft and fraud, even voting to forbid the Illinois treasury from receiving greenbacks as payment for state taxes. He scrutinized public spending for waste and favoritism, once earning the wrath of his colleagues by publicly opposing (unsuccessfully) a bill to give gold pens to each member of the Illinois House.

In what biographer Willard L. King terms “the greatest public speech of his career,” Fuller seconded the 1876 presidential nomination of Indiana’s Thomas Hendricks in unmistakably Jeffersonian terms:

The country demands a return to the principles and practices of the fathers of the Republic in this the hundredth year of its existence, and the restoration of a wise and frugal government, that shall leave to every man the freest pursuit of his avocation or his pleasures, consistent with the rights of his neighbors, and shall not take from the mouth of labor the bread it has earned.

The 1876 Democratic Convention nominated Samuel Tilden instead of Hendricks, but many Democrats around the country remembered Melville Fuller. One was Grover Cleveland. The last Jacksonian Democrat to hold the highest office, Cleveland wanted a chief justice with an unblemished record of integrity who not only shared his limited-government philosophy but was also a good business manager, someone who could fix the high court’s three-year backlog of cases.

Fuller, 55, who had argued many cases before the Supreme Court over a 16-year period, was precisely the person Cleveland was looking for. The president admired how in his visits and meetings with Fuller, the Illinois lawyer had never asked him for anything, even turning down three high posts within the administration. And Fuller had taken considerable public heat in defending both the president’s hard-money stance and his numerous vetoes of spending bills.

To thwart a possible decline by Fuller, Cleveland announced his nomination before Fuller gave his consent. He was dragged into an office he didn’t seek but in which he quickly distinguished himself as one of its most able and important holders.

Fuller charmed his colleagues on the court with his good humor, thoughtful scholarship, and remarkable capacity for friendly persuasion and mediation. He began a custom still in use today of requiring each justice at the start of a workday to shake the hand of every other justice. He resolved the court’s crowded docket.

Justice Fuller condemned the Lincoln administration’s arbitrary arrests, suspension of habeas corpus, and other wartime indiscretions.

The Fuller court should be most admired, however, for its jurisprudence. Certainly Americans who share the Founders’ vision can find much about it to applaud. Fuller himself was at the center of it, often arguing for the majority.

When freedom of commerce was at issue, the Fuller court did not carelessly allow governmental interference. For example, Prohibitionists in Iowa secured passage of a law forbidding the sale of an interstate shipment of liquor, but the Supreme Court, with Fuller writing the majority opinion, declared the law an unconstitutional violation of the Commerce Clause.

In other commerce-related rulings, the Fuller court restricted the application of the almost incoherently broad language of the Sherman Antitrust Act. The first lawsuit the government filed under the act ended disastrously for the Justice Department at the hands of Fuller himself, who wrote the majority opinion in the 1895 case of United States v. E.C. Knight Company. He found the American Sugar Refining Company not guilty of becoming a monopolist when it merged with the E.C. Knight Company. The evidence suggested that the merged companies would have made for a strange monopoly indeed — one that substantially increased output and greatly cut prices to consumers. Fuller and his colleagues ruled that manufacturing — in this case, sugar refining — was a local activity not subject to congressional regulation of interstate commerce.

Regulating the terms of interstate commerce and transportation, as the Constitution provided for, was one thing, but federal meddling in manufacturing and production was quite anathema to Fuller and to most of his colleagues. It was left to later courts to distort the Commerce Clause and justify federal regulation of virtually every corner of the economy. (Sympathetic to free trade, the Fuller court also ruled that individual states could not tax interstate telegraph messages).

In the words of James W. Ely Jr., a Vanderbilt University law professor and biographer of the court, the Fuller court staunchly defended the sanctity of contract by treating it “as the controlling constitutional norm.” It resisted attempts at congressional price- and rate-fixing. It once unanimously threw out a Louisiana law that prohibited a person from obtaining insurance from a company that was not qualified to do business in that state.

Likewise, the Fuller court was far friendlier to property rights in eminent-domain cases than recent Supreme Courts have been. The infamous 2005 Kelo v. City of New London decision, for example, approved the taking of a person’s private land for another private owner’s personal profit if a municipality regards doing so as a tool of “economic development.” Fuller would not recognize a Constitution under which such government theft could be sanctified.

One of the Fuller court’s finest moments was its 1895 rejection of a federal income tax passed the previous year over the objections of President Cleveland. Pleas that Congress needed the money, class warfare arguments, and egalitarian claims against other people’s wealth carried little weight with Melville Fuller. The Constitution forbade direct taxation of that kind, and that was enough for him and the majority to ditch it.

To this day, the most controversial decision of the Fuller court (and one which counted Chief Justice Fuller in the majority) was in the case of Lochner v. New York in 1905. So-called progressives detest it as emblematic of “heartless” 19th-century laissez-faire. New York’s Bakeshop Act of 1895 made it a criminal offense (for both the employer and the employee) for a bakery employee to work more than 10 hours in one day, with no exceptions even for emergencies.

Fuller joined the court’s majority in invalidating the Bakeshop Act because they saw it as a violation of consenting parties’ right to engage in peaceful, mutually beneficial contracts. It was also condescendingly paternalistic toward workers. If workers could be drafted by the government to put their lives on the line in battle, why couldn’t they be trusted to decide if they wanted to work long hours in a bakery?

It was left to later courts to distort the Commerce Clause and justify federal regulation of virtually every corner of the economy. 

The Lochner ruling found that the restriction on hours had no substantial, factual connection to public health and safety. Moreover, the bakeshop owner, Joseph Lochner, didn’t force any employees to work long hours; he simply allowed them to when they requested it.

The majority opinion declared,

The question whether this act is valid as a labor law, pure and simple, may be dismissed in a few words. There is no reasonable ground for interfering with the liberty of person or the right of free contract by determining the hours of labor in the occupation of a baker. There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are able to assert their rights and care for themselves without the protecting arm of the State, interfering with their independence of judgment and of action. They are in no sense wards of the State.

Melville Weston Fuller never succumbed to the temptations of power and ego, nor did he discover vast new constitutional duties for the Washington establishment to inflict on the people. He and most of his colleagues took seriously their oath to defend the supreme law of the land, a notion that seems sadly quaint in an age where sweeping judicial activism is a mainstream law-school principle.

(This essay was adapted from the author’s article “A Supreme Court to Be Proud Of” in the March 2006 Freeman.)

For additional information, see:

• George C. Leef and David E. Bernstein on “Rehabilitating Lochner”
• George C. Leef and Michael J. Philips on “The Lochner Court, Myth and Reality”
• Evan Bernick on “Oliver Wendell Holmes’ Lochner Dissent Is Saturated with Lies”
• Norman Barry’s “Constitutional Protection of Economic Liberty”
• David N. Mayer and Jacob H. Huebert’s “Liberty of Contract: Rediscovering a Lost Constitutional Right”
• George C. Leef’s “How Did We Lose Our Freedom?”