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

Introduction

INTRODUCTION The historical reputation ofjurists is apt to ebb and flow as succeeding generations see the past with different eyes.l But Melville W. Fuller, despite being the subject of a sympathetic biography,2 has never found a place in the pantheon ofjudicial giants. When President Grover Cleveland nominated Fuller for the center chair of the Supreme Court, one newspaper commented that "he will enjoy the distinction of being the most obscure man ever appointed chief justice of the United States."3 Much of the historical literature has followed suit, picturing Fuller as a competent but undistinguishedjustice.4 There is, moreover, no adequate treatment of the Supreme Court under Fuller's leadership. Historians have been all too prone to mimic the image, fIxed by the Progressives, of a bench single-mindedly devoted to safeguarding corporate interests. But such explanations are simplistic and at best misleading. Recent years have witnessed a revival of scholarly interest in the legal and economic order of the late nineteenth century. It is a propitious time, therefore, to take a fresh look at Fuller and the jurisprudence of the Fuller Court. The thesis presented here is that Fuller adroitly guided the Supreme Court during one of the most bold and creative periods of its history. Although Fuller never developed a grand theory of constitutional interpretation, there were certain recurring values-limited government , respect for private property, state autonomy- that infused his decision making. Fuller's judicial record marked him as a political and 1. See generally Richard A. Posner, Cardozo: A Study in Reputation (Chicago: University of Chicago Press, 1990). 2. Willard L. King, Melville Weston Fuller: ChiefJustice ofthe United States, 1888-1910 (New York: Macmillan, 1950, reprint Chicago: University of Chicago Press, 1967). 3. Philadelphia Press, May 1, 1888. 4. David P. Currie, The Constitution in the Supreme Court: The Second Century, 1888-1986 (Chicago: University of Chicago Press, 1990), 79-83. 1 2 THE CHIEF JUSTICESHIP OF MELVILLE W. FULLER, 1888-1910 economic conservative, but he was willing to innovate in many fields of law. In his philosophy and practice, for instance, the substance of property rights was not frozen in the past but evolved to meet changing conditions over time. Nor was Fuller hesitant to review decisions of the political branches or to overturn earlier precedent. In so doing, he led the Court to articulate novel constitutional doctrines to reflect emerging economic conditions and the needs of interstate business enterprise. Fuller and his colleagues effected a synthesis between property rights and individual liberty. Assigning a high value to economic freedom and the rights of property owners, they viewed attempts to redistribute resources or to benefit special groups as exceeding the limits of appropriate legislative authority. In many cases the justices probed the boundary between legitimate governmental power and the enjoyment of private economic rights. Their judicial commitment to entrepreneurial liberty fitted neatly with utilitarian considerations. The Fuller Court pursued instrumental goals to protect investment capital and guard the national market. Embracing the commercial outlook of modern society, the justices ratified and defended the changes that were transforming American society at the end of the nineteenth century. Even as the Fuller Court became increasingly involved in supervising the economy, however, its overall record was more complex than standard accounts allow. The Court during Fuller's tenure did cramp legislative power, but not in all respects and not always with the same emphasis. Despite a professed faith in free-market forces, the justices did not consistently follow any economic theory in resolving cases. They were far from doctrinaire adherents of laissez-fain~ principles. Indeed, contrary to the exaggerated charges of Populist and Progressive critics, the justices upheld most of the business regulations enacted by legislators. Fuller and his colleagues were suspicious of regulatory agencies, yet their decisions on the whole accommodated the rise of the administrative state. Although the justices invalidated state laws that infringed upon property rights or interfered with the free flow of interstate commerce, the members of the Fuller Court took federalism seriously. To their minds the federal nature of government gave states wide leeway for social experimentation . The justices were reluctant to disturb the traditional balance of state-federal relations in such areas as criminal justice, race relations, and public morals. This dedication to federalism led the Fuller Court to resist an expansive application of the Bill of Rights to the states. The Fuller years also marked a watershed in the evolution of federal judicial power. The Supreme Court assumed a...