Overruled (6 page)

For once, Justice Field sided quietly with the majority. Unfortunately for him, the hard-fought victory would not last long.

Two

The Devil and Oliver Wendell Holmes

On September 17, 1862, two great armies met in battle in and around the quiet town of Sharpsburg, Maryland. For Confederate General Robert E. Lee, who had marched his formidable Army of Northern Virginia into the Union-controlled border state just two weeks earlier, the goal was nothing short of total victory. Invading the North and menacing the enemy on its own soil, Lee wrote to Confederate President Jefferson Davis, would demolish northern morale, solidify the case for Southern independence, and “enable the people of the United States to determine at their coming elections whether they will support those who favor a prolongation of the war, or those who wish to bring it to a termination.”
1
The stakes were equally high for Union Maj. General George B. McClellan, now forced to reorient his massive Army of the Potomac in order to meet the invading Southern host. “Destroy the rebel army if possible,”
2
instructed Abraham Lincoln.

The resulting clash of arms would prove to be the single bloodiest day of the entire Civil War. By the time the smoke cleared after twelve hours of hard, brutal fighting, some 23,000 men were dead, wounded, or missing. “The air was full of the hiss of bullets and the hurtle of grapeshot,”
3
recalled one Union soldier who survived the ordeal. At the center of the Confederate battle line, in a sunken farm road now remembered as the Bloody Lane, Southern soldiers were outflanked and massacred by the score. As the historian Shelby Foote later described it, “Quite suddenly, as if they had tumbled headlong by the hundreds out of the sky, dead men filled whole stretches of the road to overflowing.”
4

It was a day of death and horror, with staggering casualties on both sides of the Antietam Creek, the winding local waterway that gave the battle its now-storied name. Among the thousands of wounded men littering the ground that day, shot through the neck and left for dead, was twenty-one-year-old Oliver Wendell Holmes Jr., captain of the Twentieth Massachusetts Regiment and future associate justice of the U.S. Supreme Court. “It don't seem to have smashed my spine,” Holmes wrote home to his mother, “or I suppose I should be dead or paralyzed or something.”
5

It was not the young officer's first brush with death. Two months earlier, at the Battle of Ball's Bluff in northern Virginia, Holmes was shot twice in the chest, causing his mouth to fill with blood. “The first night I made up my mind to die & was going to take that little bottle of laudanum as soon as I was sure of dying with any pain,”
6
he reported home. He suffered a third and final wound one year later at the Battle of Chancellorsville, also in Virginia, where he was shot in the foot. “I've been chloroformed & had bone extracted,” he informed his mother, “probably shant lose foot.”
7

To read Holmes's wartime correspondence today is to receive a guided tour through these and other depths of that terrible inferno.
“Swollen bodies already fly blown and decaying,”
8
he reported in one letter to his family, “Lowell is probably dead bowels cut,”
9
he noted in another. “It's odd how indifferent one gets to the sight of death,” he told his mother in December 1862, “perhaps, because one gets aristocratic and don't value much a common life.”
10

The Civil War had a profound impact on the young man who would later become one of America's most famous and influential jurists, and it was not a pretty one. As it does for many young soldiers, the experience of combat obliterated Holmes's youthful idealism. “I am not the same man,”
11
he informed his parents in May 1864. But the disillusion went far deeper than that. As the historian Louis Menand memorably put it, “The war did more than make him lose those beliefs. It made him lose his belief in beliefs.”
12
Gone forever was the young abolitionist who left Harvard two months before graduation in order to enlist on behalf of a grand cause. In his place was a man who scorned all mention of lofty principle. “I don't talk much of rights,” Holmes would declare, “as I see no meaning in the rights of man except what the crowd will fight for.”
13

In a sense, the Civil War transformed Oliver Wendell Holmes into a democrat of the very purest sort. The majority must get its way, he came to believe, regardless of whether or not minorities got trampled in the process. “It is no sufficient condemnation of legislation that it favors one class at the expense of another,” he argued in the
American Law Review,
for all laws are “necessarily . . . a means by which a body, having the power, put burdens which are disagreeable to them on the shoulders of somebody else.”
14
He made the same majoritarian point with even greater force in a letter to Harvard professor and future Supreme Court Justice Felix Frankfurter. “A law should be called good if it reflects the will of the dominant forces of the community,” Holmes maintained, “even if it will take us to hell.”
15
The Civil War may not have taught Holmes that might makes right, but it did teach
him that might was the one thing that truly mattered, both on and off the battlefield.

That stark worldview permeated his legal opinions, leading Holmes to embrace an extreme form of judicial restraint that required judges to bow down routinely to the wishes of lawmakers and elected officials. Sometimes that deference to government authority was oblique, as when Holmes led the Supreme Court in brushing away the First Amendment in order to uphold the 1918 conviction of left-wing activist Eugene Debs, arrested under the Espionage Act of 1917, a notorious piece of legislation that made it a federal offense to interfere with American involvement in World War I. What was Debs's crime? He gave an antiwar speech to a crowd of socialists out for an afternoon picnic. Such was Holmes's commitment to deference that he allowed so dubious a prosecution to stand.

Other times Holmes's submission to state power was unmistakable. “We have seen more than once that the public welfare may call upon the best citizens for their lives,” Holmes observed in 1927, alluding to his own Civil War experience. “It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices.”
16

So wrote Justice Holmes in the notorious case of
Buck v. Bell,
where the “lesser sacrifice” in question was the state of Virginia's desire to forcibly sterilize seventeen-year-old Carrie Buck, “a feeble minded white woman,” as Holmes described her, “the daughter of a feeble minded mother . . . and the mother of an illegitimate feeble minded child.”
17
Raped and impregnated by the nephew of her foster mother, Buck had been committed to a state institution for the “socially inadequate” by her foster parents. After a cursory review of the alleged facts of the case, Holmes deferred to the questionable judgment of state officials on every count and ruled in favor of the eugenics law: “Three generations of imbeciles are enough.”
18

If Justice Stephen Field was the Supreme Court's first great champion of judicial action in the cause of limited government and individual rights, then Justice Oliver Wendell Holmes was his nemesis, the Court's first great advocate of judicial deference to lawmakers and to the will of the majority. Whereas Field urged the courts to “examine into the real character”
19
of the laws that came before them and to strike down those democratically enacted statutes that violated fundamental liberties or exceeded the reach of legitimate government powers, Holmes preached a very different sort of gospel, telling his fellow judges to respect “the right of a majority to embody their opinions in law,”
20
even when such an act of restraint would mean sending the whole country straight to the devil.

It's hard to imagine two judicial philosophies with a greater gulf between them. And although Field's retirement in 1897 prevented the two men from clashing face-to-face on the Supreme Court, their dueling approaches would still collide repeatedly throughout Holmes's long tenure on the bench, which lasted from 1902 until 1932. During those three decades, as Field's libertarian vision gradually started winning important cases, Holmes registered his objections in a series of increasingly disgruntled dissents. These great legal battles, waged over issues ranging from economic regulation to civil liberties to racial equality, would shape the course of American law in the twentieth century, with repercussions still felt today.

Liberty of Contract

The opening shots rang out in 1905 in the landmark case of
Lochner v. New York.
The
Lochner
story had begun ten years earlier with the passage of a sweeping reform bill by the New York State Legislature targeting sanitary and working conditions in the Empire State's baking industry. The Bakeshop Act, as the 1895 law came to be known, was a thoroughgoing
piece of work, covering everything from ventilation and drainage to the terms under which state inspectors would give or withhold their stamps of approval. In addition, the law also placed strict new limits on the relationship between employers and employees. Henceforth, no bakery workers were permitted to work more than ten hours per day or sixty hours per week, including overtime, unless those bakers happened to own the business or be related to the owner.

That last part was a tip-off that the maximum hours law was designed with something other than just health and safety concerns in mind. After all, if the well-being of workers or consumers was really at stake, why offer any sort of exemption from the saving regulation? In his recent history of the case,
21
the legal scholar David Bernstein pointed to a more plausible explanation. The origins of the ten-hour law, Bernstein argued, are found in an economic conflict between unionized New York bakers, who labored in large shops and lobbied intensely for the working hours limit, and their non-unionized, mostly immigrant competitors, who tended to work longer hours in smaller old-fashioned bakeries. As the
Baker's Journal,
the weekly publication of the bakers' union, put it in an editorial, “cheap labor . . . from foreign shores”
22
threatened the livelihood of all card-carrying members. The imposition of a ten-hour day, therefore, “would not only aid those unionized bakeries who had not successfully demanded that their hours be reduced,” Bernstein noted, “but would also drive out of business many old-fashioned bakeries that depended on flexible labor schedules.”
23
For their part, state officials seemed to share the union's hostility to immigrant workers. “It is almost impossible to secure or keep in proper cleanly condition the Jewish and Italian bakeshops,” one state inspector reported in 1898. “Cleanliness and tidiness are entirely foreign to these people.”
24
Meanwhile, the state's large corporate bakeries, as Bernstein's research discovered, mostly sided with the union and tacitly supported the Bakeshop Act. That counterintuitive
position makes sense when you consider that the new regulations helped to undermine their competition as well.

Among that competition was a German immigrant named Joseph Lochner, who operated a small family-run bakery in Utica, New York, with his wife and a handful of employees. As Lochner saw it, the maximum hours provision went too far and violated both his rights and the rights of his workers to settle on the basic terms of employment. With the backing of the New York Association of Master Bakers, a trade group comprised of small-scale proprietors, Lochner brought the legal challenge that eventually landed him before the U.S. Supreme Court and added his name to the annals of constitutional history.

Heading into the courtroom in 1905, his odds of success appeared mixed at best. Although the Supreme Court had said that the Fourteenth Amendment protected the right to make labor contracts free from unnecessary government interference in the 1897 case of
Allgeyer v. Louisiana,
where Justice Field's “right of free labor”
25
was enshrined as the right to liberty of contract, the Court had also recently upheld several reform-minded state laws, including a Tennessee requirement that coal miners be paid in cash, not in company script, and a Utah statute limiting mine workers to an eight-hour day. That second case,
Holden v. Hardy,
seemed particularly relevant to the
Lochner
dispute, and New York officials readily cited it as a legal precedent when urging the Supreme Court to uphold their own state's working-hours limit.

But a five-justice majority of the Supreme Court took a different view. The Bakeshop Act's ten-hour provision “is not, within any fair meaning of the term, a health law,”
26
declared Justice Rufus Peckham for the majority. It was an illegitimate interference with the right to liberty of contract under the Fourteenth Amendment, and therefore must be struck down. Following the same template as Field's
Slaughter-House
dissent, Peckham began with a discussion of the proper reach of government power. There is no question that the states possess
the lawful authority “to prevent the individual from making certain kinds of contracts,”
27
he observed. As an example, Peckham pointed to the law sustained in
Holden.
In that case, the dangerous and extreme conditions present in an underground coal mine justified the state's placing certain limits on the hours of work. Similarly, Peckham continued, the Bakeshop Act's many provisions dealing directly with public health and workplace safety, such as “inspection of the premises,” “furnishing proper washrooms and waterclosets,” “providing proper drainage, plumbing, and painting,” “height of the ceiling,” and “cementing or tiling of floors,”
28
were all perfectly legitimate exercises of the state's police powers.