THE CONSTITUTION IN THE SUPREME COURT: 1921-1930 DAVID P. CURRIE* The selection of William Howard Taft to succeed Edward D. White as Chief Justice in 1921 was followed by three additional appointments in the next two years: George Sutherland, Pierce Butler, and Edward T. Sanford replaced William R. Day, Mahlon Pitney, and John H. Clarke. The upshot was something of a reign of terror for state and federal legislation.' White himself had been no great supporter of progressive legislation, and neither Day nor Pitney was in later terms a flaming liberal. The last two, however, had frequently voted with Holmes, Brandeis, and Clarke to sustain social legislation against due process attacks. Sutherland, But- ler, and Sanford, like Taft, tended to cast their lot with Van Devanter, McReynolds, and McKenna, who had been frequent dissenters in sub- stantive due process cases before 1921; thus a vocal minority became a solid majority within a two-year period. The replacement of McKenna by Harlan F. Stone in 1925 merely increased the number of regular dis- senters from two to three.2 * Harry N. Wyatt Professor of Law, University of Chicago. Thanks to Mary Beth Gose for managing the computer; to Nelson Lund, David Vandermeulen, Steve Rowland, and Richard Cray Donaldson for useful seminar papers; and to Albert Alschuler, Frank Easterbrook, Richard Helm- holz, Richard Posner, Carol Rose, Geoffrey Stone, Cass Sunstein, and William Van Alstyne for helpful criticism. 1. See Brown, Due Process of Law, Police Power, and the Supreme Court, 40 HARv. L. REV. 943, 944 (1927) ("[I]n the six years since 1920 the Supreme Court has declared social and economic legislation unconstitutional under the due process clauses of either the Fifth or the Fourteenth Amendment in more cases than in the entire fifty-two previous years .... "). 2. JUSTICES OF THE SUPREME COURT DURING THE CHIEF JUSTICESHIP OF WILLIAM How- ARD TAFT 1920 * 1922 * 1924 * 1926 * 1928 * 1930 Joseph R. MeKenna (1898-1925) Oliver Wendell Holmes (1903-1932) William R. Day (1903-1922) Willis Van Devanter (1910-1937) Mahlon Pitney (1912-1922) -A James C. McReynolds (1914-1941) Louis D. Brandeis (1916-1939) John H. Clarke (1916-1922) - William H. Taft (1921-1930) I George Sutherland (1922-1938) I Pierce Butler (1922-1939) Edward T. Sanford (1923-1930) Harlan F. Stone (1925-1941) SOURCE: Adapted from G. GUNTHER, CASES AND MATERIALS ON CONSTITUTIONAL LAW 1717 app. A (10th ed. 1980). DUKE LAW JOURNAL [Vol. 1986:65 During the Taft years, the Court not only wielded due process with unprecedented ferocity to annihilate social measures but extended it to new fields as well, forbidding the outlawing of foreign languages and of 4 private schools in Meyer v. Nebraska and Pierce v. Society of Sisters. The Court assumed in Gitlow v. New York 5 and in Whitney v. California,6 and may have held in Fiske v. Kansas,7 that due process protected free- dom of expression or assembly as well, but continued to construe those freedoms narrowly over famous objections by Holmes and Brandeis. The taking clause of the fifth amendment-which the Court had long held applicable to the states by virtue of the fourteenth amendment-was given new content by none other than the normally restrained Holmes in Pennsylvania Coal Co. v. Mahon.8 And federal cases arising largely out of Prohibition began to develop the contours of fourth amendment search and seizure law. In matters of federalism, the record of the Taft period is mixed. One of the Chief Justice's first opinions departed strikingly from the direction of earlier tax cases by invalidating a federal tax on goods made by child labor, and in another decision the Court held that baseball was not inter- state commerce under the Sherman Act. At the same time, however, the Court not only gave a broad reading to congressional authority to en- force the prohibition amendment, but reaffirmed Holmes's conclusion that stockyards were part of the current of commerce, and seemed to recede from Hammer v. Dagenhart9 by permitting Congress to forbid interstate transportation of stolen cars. Justice McReynolds's pet doc- trine limiting the maritime application of state laws underwent an inter- esting modification, while Justice Stone contributed new insights into the recurring problems of commercial and governmental immunities. Biographies of Justices of this period include M. HOWE, JUSTICE OLIVER WENDELL HOLMES: THE SHAPING YEARS, 1841-1870 (1957); M. HOWE, JUSTICE OLIVER WENDELL HOLMES: THE PROVING YEARS, 1870-1882 (1963); A. MASON, BRANDEIS: A FREE MAN'S LIFE (1946) [hereinaf- ter cited as A. MASON, BRANDEIS]; A. MASON, HARLAN FISKE STONE: PILLAR OF THE LAW (1956) [hereinafter cited as A. MASON, HARLAN FISKE STONE]; A. MASON, WILLIAM HOWARD TAFT: CHIEF JUSTICE (1964) [hereinafter cited as A. MASON, WILLIAM HOWARD TAFT]; M. MC- DEVrT, JOSEPH MCKENNA, ASSOCIATE JUSTICE OF THE UNITED STATES (1946); J. MCLEAN, WILLIAM RUFUS DAY (1946); J. PASCHAL, MR. JUSTICE SUTHERLAND: A MAN AGAINST THE STATE (1951); H. PRINGLE, THE LIFE AND TIMES OF WILLIAM HOWARD TAFT (1939); H. WARNER, THE LIFE OF MR. IUSTICE CLARKE (1959). 3. 262 U.S. 390 (1923). 4. 268 U.S. 510 (1925). 5. 268 U.S. 652 (1925). 6. 274 U.S. 357 (1927). 7. 274 U.S. 380 (1927). 8. 260 U.S. 393 (1922). 9. 247 U.S. 251 (1918). Vol. 1986-.65] THE SUPREME COURT: 1921-1930 With the possible exception of the due process revolution, the most interesting product of the Taft years was a series of major decisions re- specting the separation of federal powers. The case-or-controversy limi- tation that had been applied in Muskrat v. United States 10 was elaborated in Tutun v. United States," Massachusetts v. Mellon,12 Keller v. Potomac Electric Co., 13 and a variety of decisions respecting ripeness and declara- tory judgments. Judicial independence received a setback when Exparte Bakelite Corp.1 4 concluded that the Court of Customs Appeals had been established without regard to article III. The great case of Myers v. United States 15 resolved an ancient controversy in upholding the Presi- dent's authority to fire a subordinate despite a statutory requirement of Senate consent. Springer v. Philippine Islands,1 6 construing the act set- ting up a local government, implied important constitutional limitations on legislative powers of appointment. J. W. Hampton Co. v. United States 17 upheld yet another broad delegation of discretion to the Presi- dent. The Pocket Veto Case'8 gave a liberal interpretation to the Presi- dent's power to avoid the overriding of a veto, and McGrain v. Daugherty1 9 legitimatized the legislative investigation. 20 It was an exciting time. Let us get directly to the particulars. I. LIBERTY, PROPERTY, AND EQUALITY A. Constrictingthe Social State. 1. Equal Protection. The equal protection clause had played little part in controlling state action before 1921. Not only had the separate- but-equal doctrine-which the Taft Court unanimously reaffirmed-lim- ited the reach of the clause even in the racial field,21 but in other areas the 10. 219 U.S. 346 (1911). 11. 270 U.S. 568 (1926). 12. 262 U.S. 447 (1923). 13. 261 U.S. 428 (1923). 14. 279 U.S. 438 (1929). 15. 272 U.S. 52 (1926). 16. 277 U.S. 189 (1928). 17. 276 U.S. 394 (1928). 18. 279 U.S. 655 (1929). 19. 273 U.S. 135 (1927). 20. This article is the continuation of a series that traces the Court's constitutional decisions from its establishment in 1789. See D. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE FIRST HUNDRED YEARS, 1789-1888 (1985); Currie, The Constitutionin the Supreme Court: The Protectionof Economic Interests, 1889-1910, 52 U. CHI. L. REv. 324 (1985) [hereinafter cited as Fuller I]; Currie, The Constitution in the Supreme Court: Full Faith and the Bill of Rights, 1889- 1910, 52 U. CHI. L. REv. 867 (1985) [hereinafter cited as Fuller II]; Currie, The Constitution in the Supreme Court: 1910-1921, 1985 DUKE L.J. 1111 [hereinafter cited as White]. 21. See Gong Lum v. Rice, 275 U.S. 78 (1927) (Taft, C.J.) (upholding state authority to exclude child of Chinese extraction from "white" school because "equal" facilities were provided for non- DUKE LAW JOURN4L [Vol. 1986:65 Court had made clear that equality required only that persons similarly situated be treated alike. Reasonable classifications were permissible; only when the Court could find no justification beyond what Cass Sun- 23 stein has called a "naked preference" 22 would the clause be invoked. The test, moreover, was a deferential one. An ordinance excluding loco- motives from a single street, for example, was upheld on the ground that other streets might have lesser problems, without any proof that they had.24 Given such an attitude, it was not surprising that the Court had found very few unreasonable classifications. Before he had been in office three months, however, Chief Justice Taft, in Truax v. Corrigan,25 found another. Arizona had forbidden in- junctions against picketing by striking workers. Similar conduct by a competitor, the Court observed, could have been enjoined, and there was 26 no reasonable basis for the distinction. Pitney, Holmes, Clarke, and Brandeis vainly protested that the em- ployment relationship had often been singled out for special treatment. 27 Those cases had concerned work-related injuries, Taft retorted, without saying why that was significant.28 No matter; the question was whether the Arizona injunction law was reasonable. The dissenters argued that in the labor field problems had been encountered with the use of the injunc- whites); cf D. CURRIE, supranote 20, at 387-90 (discussing Pace v.