CLARKE, JOHN H. (1857–1945)

With the exception of oliver wendell holmes and louis d. brandeis, John H. Clarke was the most consistently progressive member of the Supreme Court during the final years of edward d. white's chief justiceship and the early tenure of william howard taft. a prosperous newspaper publisher and attorney who defended many midwestern railroads, clarke belonged to the moderate wing of the democratic party in ohio which defended the gold standard in 1896 and looked skeptically upon reform programs. woodrow wilson appointed Clarke to the federal district court in 1914 and two years later elevated him to the Supreme Court to fill the vacancy left by Wilson's presidential rival, charles evans hughes.

Intellectually, Clarke could not fill Hughes's shoes, but he surprised many critics by his voting record in cases involving corporations and labor. Despite his earlier representation of big business, Clarke became a strong judicial supporter of the antitrust laws. He dissented in the two leading cases of the period, United States v. United Shoe Machinery Company (1918) and United States v. United States Steel Corporation (1920), when the white court spurned the government's efforts to convict these industrial giants for monopolistic behavior.

In 1920, however, Clarke won a majority to his side when the Justices ordered the dissolution of a major railroad monopoly in United States v. Lehigh Valley Railroad, and found the Reading Railroad guilty of restraint of trade in the anthracite coal industry. Over a powerful dissent by Holmes, Clarke also wrote for the Court that upheld indictments for open price agreements in the hardwood lumber industry.

Clarke rejected the dominant judicial ideology of freedom of contract, which had been used to stifle legislative reforms to benefit labor. He endorsed Oregon's ten-hour law for all industrial workers in bunting v. oregon (1917), approved of the federal adamson act which mandated an eight-hour day for railroad workers in wilson v. new (1917), and refused to endorse the injunction at issue in the yellow dog contract case of hitchman coal & coke co. v. mitchell (1917). He voted as well to sustain the constitutionality of the keating-owen child labor act in hammer v. dagenhart (1918), refused to sanction the prosecution of labor unions under the antitrust laws in united mine workers v. coronado coal co. (1922), and upheld a union's right to conduct a secondary boycott in the notorious case of duplex printing co. v. deering (1921).

Despite his progressive record with respect to economic regulation and the rights of labor, Clarke will probably always be remembered as the Justice who wrote for the majority in the case of abrams v. united states (1919), which sustained the conviction of pro-Bolshevik pamphleteers under the wartime espionage act and sedition act. Clarke's opinion provoked Holmes's famous and biting dissent. Arguing that "men must be held to have intended and to be accountable for the effects which their acts were likely to produce," Clarke transformed Holmes's clear and present danger test into something approximating the bad tendency test that came to dominate the Court's first amendment jurisprudence for several decades.

Michael E. Parrish
(1986)

Bibliography

Warner, Hoyt L. 1959 Life of Mr. Justice Clarke. Cleveland, Ohio: Western Reserve University Press.