SUPREME COURT OPINIONS: The Taft Court (1921 - 1930)


OOOOFor each opinion, the author's name name is given first and in full, the following justices joining in the opinion. Concurring or separate opinions are those which agree with the result of the Court's opinion but differ with the reasoning, larger implications, or simply wish to add an aspect not touched on by the Court. Dissenting opinions, of course, are those which disagree with the Court's ruling. There may even be several dissenting opinions, depending on the nature of the several justices' disagreement.

1921 Truax v. Corrigan, 257 U.S. 312
Chief Justice William H Taft, J. Day, J. Van Devanter, J. McReynolds
Dissent: J. Oliver Wendell Holmes
Dissent: J. Mahlon Pitney, J. Clark
Dissent: J. Louis D. Brandeis
OOOTThe Truax decision represents one of the last gasps of pro-property jurisprudence that had arisen in the mid-nineteenth century. The case tested the constitutionality of an Arizona statute which prohibited, inter alia, injunctions against employees taking action against employers, including strikes, pickets and boycotts. Truax, a restaurant owner, alleged that striking employees had harmed his business, and that the statute, by removing legal recourse against their actions, had deprived him of property without due process; and by setting up the employees as a "protected class", had denied him the equal protection of the laws. Both, Truax claimed, were violations of the 14th Amendment.
OOOThe lower courts which originally had heard the case denied Truax's claim of a property right in his business, and so denied the due process claim. While all admitted that the picketting had driven away the restaurant's customers, this was not illegal under the statute, and moreover the lower courts found that Truax had no property right in the "esteem of the public". They further found that, while strikes had been illegal in Arizona before the statute, and Truax was therefore previously "protected", no one had a vested right to a particular law - or its protection - if a legal law-making body, in this instance the Arizona legislature, changed it.
OOOChief Justice Taft however, writing for the Court, found for Truax.
OOOIn overturning the lower courts' decision, Taft contradicted it in finding a property right in the business itself and an incident right in access to the business - what the strikers had inhibited. Intentional injury to such a right by illegal means was, according to Taft, a tort and a conspiracy.
OOOTo find 'illegality' in the acts of the strikers, Taft had to bring the facts, as well as the law, under the scrutiny of the court. This was unusual. Truax had not alleged illegality on the part of the strikers in his original case, nor had the lower courts considered it. Under such circumstances, the Supreme Court would not normally have considered it either; but Taft insisted on an examination of the actual circumstances of the strike, and found that the strikers' actions included intimidation, threats, verbal abuse of patrons and libelous statements about Truax and the restaurant. A law which made such actions legal and which thereby deprived Truax of the property rights in his business was clearly unconstitutional.
OOOFinally, Taft found that a law which granted immunity to one class - in this case the striking workers - and which tended to deny the rights of another - the restaurant owners - was clearly a violation of the equal protection guarantee.
OOOHolmes' dissent was brief. He denied a business was a property within the meaning of the Constitution, calling it instead "a course of conduct". He also warned of the abusive use of injuctions by employers against striking employees in all labor disputes, and suggested that the harm done to employers under the Arizona statute might be far less than that done to workers without it. Finally, he suggested that the Court not "...prevent the making of social experiments that an important part of the community desires, in the insulated chambers afforded by the several states..."
OOOPitney's dissent allowed Taft's point that a business is a property, but denied the Court's claim to find on the facts, insisting that it should have ruled solely on the constitutionality of the statute as it applied to Truax and the restaurant. That said, Pitney wrote that, while a business' value may derive from a particular social order, it was entirely within the police power of the states to regulate the social order as they see fit, and that reasonable alterations of laws - even ones withdrawing certain protections - were not a denial of due process. Echoing the lower courts, he wrote " person has a vested interest in any rule of law..."
OOOAs for the equal protection claim, Pitney drew the class line differently from Taft. He stated that since the restuarant owners were treated no differently than other owners in similar circumstances, there was no equal protection claim. In other words, Truax's legal protections were not to be contrasted with the strikers, but with other restaurant owners.
OOOIn his dissent, Brandeis' also agreed that Truax had a right in his business, but whether as a 'property' or a 'liberty', he had no intrinsic right to hold it immune from the normal exigencies - whether from competitors, suppliers or employees - which might adversely effect it. The states, he wrote, can and do regulate those relations as they see fit, and that the only test of those regulations is that they should be narrowly and effectively tailored to a reasonable purpose.
OOOBrandeis further pointed out that "...the refusal of an equitable remedy for a tort is not necessarily a denial of due process", essentially saying that while courts must appliy the law where it exists, it is within the power of the courts, and of the states in regulating thier courts, to apply equitable solutions where they see fit.
OOOFinally, in reviewing a lengthy history of labor relations, Brandeis pointed out that injuctions had traditionally been the tool of employers to violate the rights of employees, and that, in recognition of that fact, the Arizona law was little different from recent federal legislation, notably the Clayton Act, which sought to protect the rights of workers and unions. In short, the Court's opinion was already obsolete before it was written.

1923 Adkins v. Children's Hospital, 261 U.S. 565
Justice George Sutherland, J. McKenna, J. Van Devanter, J. McReynolds, J. Butler
Dissent: Chief Justice William H. Taft, J. Sanford
Dissent: Justice Oliver Wendell Holmes
Justice Brandeis did not participate in the case.
OOOTLike Truax, Adkins represents a throw-back to prior jurisprudence, specifcally the "liberty of contract" inspired by the Slaughterhouse Cases and Allgeyer v. Louisiana, and enshrined in Lochner v. New York. The case turned on the constitutionality of a law passed in the District of Columbia setting a minimum wage for women and children with the aim of providing them "...with the necessary cost of living, maintain them in health and protect their morals..."
OOOTWriting for the majority, Sutherland found the statute " unconstitutional interference with the freedom of contract included within the guaranties of the due process clause of the Fifth Amendment." Echoing Lochner, he continued, "Within this liberty are contracts of employment of labor. In making such contracts, generally speaking, the parties have an equal right to obtain from each other the best terms they can as the result of private bargaining."
OOOTIn the course of the opinion, Sutherland acknowledges, but is careful to separate, recent decisions of the Court from the case under review. Most notable were Muller v. Oregon and Bunting v. Oregon; the first upholding a law setting maximum hours of work for women, and the second extending that law to all workers, including overtime pay for work beyond the statutory maximum. Sutherland maintained there was a fundamental difference between regulating hours and regulating wages.
OOOTFurther, Sutherland wrote that the statute was overly broad - applying to all female workers regardless of their circumstances - and arbitrary - unrelated to the actual work involved, the real needs of women or their actual value to the employer. This latter point Sutherland made an issue of injustice to the employer, as the law made no concomitant demand on the employee to produce at a minimum level for the established minimum wage; and this formed the core of Sutherland's position: "The feature of this statute which, perhaps more than any other, puts upon it the stamp of invalidity is that it exacts from the employer an arbitrary payment for a purpose and upon a basis having no causal connection with his business, or the contract or the work the employee engages to do....[A] statute which prescribes payment...solely with relation to circumstances apart from the contract of employment, the business affected by it and the work done under it, is so clearly the product of a naked, arbitrary exercise of power that it cannot be allowed to stand under the Constitution of the United States."
OOOTTaft's dissent immediately challenges the main assumption of freedom of contract for labor - that the parties enter into such contracts on a equal footing: "Legislatures, in limiting freedom of contract between employee and employer by a minimum wage, proceed on the assumption that employees, in the class receiving least pay, are not upon a full level of equality of choice with their employer, and, in their necessitous circumstances, are prone to accept pretty much anything that is offered. They are peculiarly subject to the overreaching of the harsh and greedy employer." He goes on in the same paragraph to write, "Now I agree that it is a disputable question in the field of political economy how far a statutory requirement of maximum hours or minimum wages may be a useful remedy for these evils, and whether it may not make the case of the oppressed employee worse than it was before. But it is not the function of this Court to hold congressional acts invalid simply because they are passed to carry out economic views which the Court believes to be unwise or unsound." Both observations are restatements of the dissent in Lochner.
OOOTTaft next directly contradicts Sutherland's conclusions regarding the significance of Muller and Bunting: "....I assume that the conclusion in this case rests on the distinction between a minimum of wages and a maximum of hours in the limiting of liberty to contract. I regret to be at variance with the Court as to the substance of this distinction. In absolute freedom of contract, the one term is as important as the other, for both enter equally into the consideration given and received, a restriction as to one is not any greater, in essence, than the other, and is of the same kind. One is the multiplier, and the other the multiplicand." In fact, Taft writes that the Bunting and Lochner decisions are so at odds that he assumed Bunting to have overruled Lochner "sub silentio".
OOOTHaving said this, it was Taft's conclusion that Muller controlled the case at issue. If the Court could uphold a law broadly regulating maximum hours of labor for women over a broad spectrum of occupations, there was no rational or legal basis for overrulling a law regulating their wages, since, from the point of view of contract, there was no difference.
OOOTIn his brief dissent, Holmes observes that had the question been framed in terms of taking private property without just compensation he might had found differently; but as a due process matter regarding contracts, he agreed with Taft that there was no difference between the regulation of hours and the regulation of wages, and the Court had already passed on that question, laying Lochner to rest. Holmes' contempt for the whole idea of liberty of contract between worker and employer is evident: "The earlier decisions...began within our memory and went no farther than an unpretentious assertion of the liberty to follow the ordinary callings. Later, that innocuous generality was expanded into the dogma, Liberty of Contract. Contract is not specially mentioned in the text that we have to construe. It is merely an example of doing what you want to do, embodied in the word liberty. But pretty much all law consists in forbidding men to do some things that they want to do, and contract is no more exempt from law than other acts."

1925 Gitlow v. People of the State of New York, 268 U.S. 652
Justice Edward T. Sanford, C.J. Taft, J. McKenna, J. Van Devanter, J. McReynolds, J. Sutherland, J. Butler
Dissent: J. Oliver Wendell Holmes, J. Brandeis
OOOTGitlow was a follow-on decision to those of Abrams and Schenk cases from the previous court. Gitow was found guilty under a New York law prohibiting the overthrow, or advocacy of overthrow, of organized government by unlawful means - what the law called "criminal anarchy". Gitlow did not question the facts of the case. He had published and distributed a tract called "The Left Wing Manifesto" which did what the law forbad. Gitlow's case was that his advocacy was merely general doctrine, and that absent direct and immediate incitement to particular persons to a specific unlawful act - a "clear and present danger" - the law was overly broad and unconstitutionally restrained his free speech rights under the due process clause of the 14th amendment to the Constitution. Sanford, writing for the majority, ruled against Gitlow and upheld the law.
OOOTSanford observed generally that states, as an exercise of their police power, had a reasonable right to protect their forms of government from destruction, and to pass laws to guarantee that protection. Such laws might ban speech. Sanford allowed that, if the New York law had banned a class of subversive acts, Gitlow might have a "clear and present danger" defense, as speech advocating such acts might be protected up to the line of actual incitement. But since the New York law had banned a class of speech, then any utterance that fell within that class was illegal regardless of circumstances.
OOOTWhat Gitlow is famous for, however, is what Sanford observed in his opinion, almost as an aside - what is known as dicta - "For present purposes, we may and do assume that freedom of speech and of the press which are protected by the First Amendment from abridgment by Congress are among the fundamental personal rights and "liberties" protected by the due process clause of the Fourteenth Amendment from impairment by the States." While it was true that the Court believed, as it still does, that free speech rights are not absolute, this was the first clear statement by the Court that the 1st Amendment applied equally to the states through the 14th Amendment as to the federal government.
OOOTIn dissent, Holmes denied Sanford's distinction between laws banning acts and those banning speech, stating that the clear and present danger test should apply to both; an opinion which would have found the New York law overly broad and so unconstitutional.