White, Edward D. (1845–1921)

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WHITE, EDWARD D. (1845–1921)

Born and raised in Louisiana, the son of a slaveholding sugar planter and a Confederate veteran, Edward Douglass White was an archetype of the "New South" political leader. The masters of the region's economic and social development from the 1880s until world war i combined the interests of antebellum planters with those of northern and local capitalists eager to build railroads and tap the area's coal, iron, and timber. The South's new ruling class "redeemed" Dixie from the egalitarian schemes of Radical Republicans and carpetbaggers by supporting rutherford b. hayes for President and accepting the national hegemony of the GOP's conservative wing. In return, these leaders of the "New South" received from the Republicans a promise to remove federal troops from the region, a free hand with respect to the Negro, and a junior partnership in the management of the nation's economic affairs. (See compromise of 1877.)

While tending his family's plantation and building a prosperous legal practice in New Orleans, White became a chief political confidant and ally of Governor Francis Nicholls, the leader of the state's conservative Democrats, who rewarded him with an appointment to the Louisiana Supreme Court and then a seat in the United States senate in 1891. While in Washington, the portly, florid, long-haired junior senator from Louisiana adopted a rigid states ' rights and laissez-faire posture on most issues. However, he fervently supported high duties on foreign sugar and lavish federal bounties to the planters in his home state. White led the Senate's successful revolt against President grover cleveland's efforts to lower the protective tariff in 1893. Nevertheless, the beleaguered head of the Democratic party nominated him to the Supreme Court a year later, following the death of samuel blatchford and the Senate's rejection of two earlier nominees.

White took his seat as the junior member of the fuller court at one of the important turning points in the history of the federal judiciary. The country seethed with unrest generated by the worst depression of the nineteenth century. Violent confrontations between workers and employers erupted on the nation's major railroads as well as in coal mines, steel mills, and other factories. Debt-ridden farmers formed the radical Populist Party, which demanded government control of the money supply and banking system and nationalization of the major trunk rail lines. Insurgent Democrats nominated the youthful William Jennings Bryan, who ran on a platform promising inflation of the money supply, higher taxes on the wealthy, and a curb on trusts and other monopolies. In this atmosphere of class strife and regional polarization, men of property and standing looked to the Supreme Court to defend the constitutional ark against dangerous innovations. Fuller and most of his colleagues were equal to the task of repelling the radical hordes.

Even before the economic collapse, a majority of the Justices had served warning that they would not tolerate legislative attacks on corporate property and profits. Legislative power to fix railroad rates, they warned, was not without limits; corporations were persons, entitled to the judicial protection of the fourteenth amendment ' sdue process clause; and no rate imposed by legislative fiat could be deemed "reasonable" without final judicial review. Then, in a series of cases that reached the Court together during the depths of the depression in 1895, the Justices quashed federal efforts to prosecute the sugar trust under the sherman antitrust act in united states v. e. c. knight co. (1895); upheld the contempt conviction of the labor leader Eugene V. Debs for his role in the Pullman boycott in in re debs (1895); and declared unconstitutional the first federal income tax levied since the Civil War in pollack v. farmer ' s loan and trust co. (1895). These three decisions displayed the fuller court's conservative colors and represented a major victory for big business, the wealthy, and the enemies of organized labor.

Like the majority of his brethren, Justice White showed no sympathy for Debs and the militant working class movement he represented. White also endorsed Fuller's reasoning in the sugar trust case, which limited the scope of the Sherman Act to monopolies of interstate trade or commerce and left to the individual states all authority to curb monopolies over production. But he joined Justice john marshall harlan, the outspoken champion of nationalism and federal power, in denouncing the majority's assault on the income tax statute. White had been a member of the Senate that passed the income tax measure as part of the tariff package in 1892, and, although he did not endorse the levy, neither did he doubt the constitutional power of Congress to adopt it. In order to invalidate the law, the majority had to ignore two weighty precedents, one dating from 1796. This was too much for White, who argued eloquently that "the conservation and orderly development of our institutions rests on our acceptance of the results of the past, and their use as lights to guide our steps in the future. Teach the lesson that settled principles may be overthrown at any time, and confusion and turmoil must ultimately result."

The income tax dissent revealed an important aspect of White's jurisprudence which remained constant during his years as an associate Justice and later as Chief Justice after 1911. Although deeply conservative and devoted to the judicial protection of private property, White was also a pragmatist capable of endorsing moderate reforms that had clear constitutional sanction and that served to cap the pressures for more radical change. Though not adverse to overturning a few precedents himself, White usually did so in the pursuit of policies that strengthened rather than weakened the dominant economic forces of corporate capitalism.

In this spirit, he endorsed the judicial imperialism inherent in Justice Harlan's opinion in smyth v. ames (1898), which made the federal judiciary the final arbiter of utility rates, but he also enforced the progressive reforms of the Theodore Roosevelt-William Howard Taft era which revitalized the regulatory authority of the Interstate Commerce Commission (ICC) over the nation's major railroads. In a series of decisions, culminating in White's opinion in interstate commerce commission v. illinois central railroad co. (1910), the majority sustained the ICC's fact-finding and rate-fixing powers as mandated by Congress. White's views were compatible with the interests of the railroads, which looked to the ICC to prevent financially ruinous rate wars, and with those of reformers like Roosevelt, who believed that such regulation would curb the appetite for government ownership of the carriers.

White rendered his greatest service to the conservative cause in the area of antitrust law by promoting the view that the Sherman Act prohibited only "unreasonable" restraints of trade, a perspective pregnant with possibilities for enlarged judicial control over the country's economic structure, yet wholly compatible with the desires of big business. But it took White over a decade to defeat the contrary views of other Justices, who remained more wedded to the old Jacksonian belief in competition and the dangers of monopoly.

In the wake of the E. C. Knight decision restricting federal antitrust efforts to interstate commerce, the Department of Justice began a campaign to stamp out railroad cartels and pools designed to divide up traffic and fix rates. A majority of the Justices, led by Harlan and rufus w. peckham, a passionate spokesman for laissez-faire economics, sustained the government's efforts in this area on the theory that the Sherman Act outlawed all restraints of trade, even those that might be deemed "reasonable" in view of particular business conditions such as rate wars and destructive competition. In the first of these cases, united states v. trans-missouri freight association (1897), White wrote a long, rambling dissent which accused the majority of misreading the antitrust law, defying the traditions of the common law with respect to restraints of trade, and jeopardizing the economic progress brought to the nation by business combinations and consolidations.

White continued to dissent in the Joint Traffic Association Case (1898) and in northern securities co. v. united states (1904), where a five-Justice majority upheld the government's suit against the Morgan-Harriman rail monopoly between Chicago and the Pacific Northwest. In each case, White argued that the antitrust law, incorporating the ancient doctrines of the common law, prohibiting only "unreasonable" restraints of trade. Technically, White was correct, but all of the methods condemned in Trans-Missouri, Joint Traffic Association, and Northern Securities would have been indictable at common law as well, because their fundamental objective had been to fix prices contrary to the public interest. This fact seems to have eluded White, who believed that the Harlan-Peckham approach threatened the demise of valuable business enterprises by virtue of judicial abdication to the prosecutorial zeal of misguided reformers in the executive branch. In this perception, he enjoyed the support of three other justices, including oliver wendell holmes, who also looked upon the Rockefellers, Morgans, and Harrimans as agents of social and economic progress.

Four changes in the personnel of the Court between 1909 and 1911 gave White a new majority for his doctrine a year later when the government's suits against Standard Oil and American Tobacco finally reached the Justices after years of litigation. Speaking now as Chief Justice of the United States, having been appointed to the center chair by President Taft, White sustained the government's case against the monopolists but cast aside the Harlan-Peckham interpretation of the Sherman Act. Henceforth, the majority decreed, only "unreasonable" trade restraints would be indictable under the Sherman Act and the Justices on the Supreme Court would determine where the line should be drawn between legal and illegal competitive behavior. Harlan wrote a melancholy dissent against this sharp reversal of doctrine, which seemed to teach that "settled principles may be overthrown at any time, and confusion and turmoil must ultimately result."

White's rule of reason doctrine provoked a storm of protest from progressives in the Congress, who denounced the Justices for mutilating the antitrust law, arrogating to themselves too much power over the economic system, and giving big business a hunting license to continue its predatory ways. Although Congress added the clayton act amendments to the antitrust law in 1914, specifically outlawing a substantial list of business practices, White's rule of reason carried the day. The Court quashed the government's efforts to break up the shoe machinery monopoly in 1913 and also threw out the case against United States Steel in 1920, a year before White died. There was extraordinary historical irony in the fact that it was a Southerner and a veteran of the Rebel army who advanced antitrust doctrines that sealed the triumph of industrial capitalism and big business in American life.

For a Southerner, a Democrat, and a spokesman for states' rights in the Senate, White displayed considerable toleration for the expansion of federal economic controls by means of the commerce clause and the taxing and spending power. In the Senate he had taken an active role in fighting a federal law to regulate the trade in agricultural "futures," noting that it would invade the jurisdiction of the states and create "the most unlimited and arbitrary government on the face of God's earth." As a Justice, however, he joined Harlan's path-breaking opinion in the Lottery Case, champion v. ames (1903), which greatly expanded the national police power via the interstate commerce clause. A year later he wrote the Court's opinion in mccray v. united states (1904), which affirmed the power of Congress to impose a prohibitive levy upon oleomargarine and thus employ its tax powers for regulatory purposes.

White drew back, however, from the logical implications of the national police power when Congress sought to apply it to other areas of social and economic life. He was willing to permit the extension of the commerce power to federal regulation of adulterated foods and interstate traffic in prostitution, but he joined Justice william r. day's opinion in hammer v. dagenhart (1918), which declared unconstitutional Congress's attempt to eradicate child labor. He also rejected federal efforts to tax and regulate narcotics traffic in united states v. doremus (1919), although the majority found this use of the federal taxing power compatible with White's own views in McCray. He sanctioned Congress's adoption of an eight-hour day for interstate train crews which brought an end to the disastrous nationwide rail strike, but he joined three other dissenters in Block v. Hirsh (1921) when Holmes and the majority upheld the national legislature's power to impose rent controls upon property in the district of columbia during the emergency of World War I.

White displayed equal inconsistency in cases where state economic regulations came under due process challenge. The one thread of coherence seemed to be his growing conservatism and abiding dislike for organized labor. He dissented in lochner v. new york (1905) along with Harlan and Day, noting that "no evils arising from such legislation could be more far-reaching than those that might come to our system of government if the judiciary … should enter the domain of legislation, and upon grounds merely of justice or reason or wisdom, annul statutes that had received the sanction of the people's representatives." He also voted to sustain the Oregon and California maximum hours laws for women in muller v. oregon (1908) and Miller v. Wilson (1915). But he balked at the overtime pay provisions and general maximum hours limitation in bunting v. oregon (1917) and sided with the majority in the three leading cases of the period which protected employers' use of yellow dog contracts against both state and federal efforts to eliminate this notorious antiunion device: Adair v. United States (1908), coppage v. kansas (1915), and hitchman v. hitchman coal & coke co. (1917).

In 1919, White joined joseph mckenna, willis van devanter, and james c. mcreynolds in dissent against the Court's opinion in the Arizona Employers' Liability Cases (1919), which upheld that state's law shifting the cost of industrial accidents to employers. And during his final term on the Court, he joined the majority in scuttling the anti-injunction provisions of the Clayton Antitrust Act and affirming the illegality of secondary boycotts. If not the most reactionary member of the Supreme Court with respect to organized labor, White certainly ran a close race for that honor with Justices Day, mahlon pitney, and McReynolds.

White had been elevated to the chief justiceship by William Howard Taft, who coveted the position for himself and feared that a younger nominee might forever prevent that happy development. Taft realized his lifelong ambition in 1921, when White died. Predictably, White's eulogizers compared his career to that of John Marshall and other immortals of the bench, but a more accurate assessment is that constitutional law showed his imprint until 1937.

Michael E. Parrish
(1986)