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From Lochner to Hammer V. Dagenhart, a Reevaluation of Justice William R JOURNAL OF S UPREME C OURT H ISTORY “The Silent Man”: From Lochner to Hammer v. Dagenhart, A Reevaluation of Justice William R. Day JESSE BAIR Legal academics have written little the Supreme Court and its Fourteenth about Justice William R. Day. In fact, the Amendment liberty-of-contract decisions.6 only formal biography about him was On the other hand, some chastised Day as published in 1946,1 twenty-three years being “reactionary”7 and an “old-fashioned before the Library of Congress arranged law and precedent jurist.”8 More recent and described his papers.2 As a result, that attempts to describe Day’s judicial philoso- biography almost exclusively relied on the phy have proven equally unsatisfying.9 text of Day’s opinions.3 In doing so, it Justice Day served on the Supreme Court broadly concluded that Day strictly con- between 1903 and 1922, during the period of strued national powers and liberally con- time commonly referred to as the Lochner strued state powers.4 Era, and his positions on key cases bear Yet it is not easy to classify Justice further examination.10 Day’s jurisprudence. In the early twentieth Lochner v. New York11 and Hammer v. century, descriptions of his philosophical Dagenhart are two cases often associated with tendencies spanned the ideological gamut. the perceived judicial activism of that time On the one hand, some publications referred period.12 In Lochner, the Court struck down a to Day as a “progressive mind”5 who, along New York state statute regulating maximum with Justices Oliver Wendell Holmes, Jr., hours for bakers.13 In Hammer, the Court and Charles Evans Hughes, sought to invalidated a congressional enactment that eliminate the laissez-faire philosophy of prohibited the interstate shipment of goods JOURNAL OF S UPREMEWILLIAM RUFUSC OURT DAY: A REEVALUATIONH ISTORY 39 produced by child labor.14 Although both Day’s Reluctance to Dissent cases typify the popular belief that the Day’s reluctance to dissent is an impor- Lochner Era Court struck down a multitude tant factor in explaining his switch. To say of economic regulations,15 Day did not join that he dissented infrequently would be an the majority in both cases. Rather, Day joined understatement. Day penned only eighteen Justice John Marshall Harlan’s dissent in dissents during his nineteen-year tenure on Lochner and thirteen years later wrote the the Supreme Court.16 Harold Laski, a majority opinion in Hammer. This article longtime acquaintance of Justice Holmes, aims to answer the question of why Justice took note of this trend when he stated that he Day made this switch, by examining his “did not think it possible for Day[] to be in the jurisprudence, belief in federalism, politics, minority on any ground.”17 Part of Day’s personality, and other factors. reluctance to dissent likely stemmed from the Justice William R. Day, who almost never dissented, joined Justice John Marshall Harlan’s 1905 dissent in Lochner supporting a New York statute regulating maximum hours for bakers. JOURNAL OF 40 S UPREMEJOURNAL OF SUPREMEC OURT COURT HISTORYH ISTORY prevailing legal culture of the time, which “be glad to concur” if Van Devanter went disfavored dissents.18 In particular, Chief ahead with a dissent.29 Justice William H. Taft believed that dissents Evidently, Day sometimes went along created unnecessary uncertainty in the law.19 with majority opinions with which he dis- In a 1923 letter, an attorney wrote to Taft that agreed if he could not convince others to dissenting opinions should be “dispensed dissent. Regarding a 1916 case, he wrote to with” because they “discredit the court,”20 Pitney: “I . express[] the hope that you arguing that, when laymen see judges dis- might expand your memorandum into a agreeing over the law, “the decision is dissent. In my belief, Justice Holmes has consequently only the opinion of individuals reached a wrong conclusion . I shall not and not that of the court.”21 Taft replied that write a dissent myself, as I have not time so to he “agreed with [the attorney] about dissent- do.”30 Justice Day’s papers do not contain a ing opinions” and that “it would be better to response from Pitney. Without a dissent to have none.”22 sign on to, Justice Day joined Justice An exchange of letters between Justice Holmes’s decision only a week after describ- Day and Justice Mahlon Pitney illustrate that ing it as “wrong.”31 Day shared this general reluctance to dissent. Day’s reluctance to write dissents may After reading a draft opinion written by also be attributed to the Supreme Court’s high Holmes, Day wrote Pitney that he thought volume of cases. During his tenure on the their dissenting views “should at least be Bench, the Supreme Court did not have the written out, to call them to the attention of the power to control the size of its docket the way brethren.”23 Due to an illness, however, Day it does today.32 Only after aggressive lobby- felt he could not write the dissent and he ing by Chief Justice Taft did Congress pass implored Pitney to do so. Pitney replied that, the Judiciary Act of 1925, which granted the although he felt the majority opinion re- Court its modern form of discretionary mained “indefensible” and was “unjust to the review. As a result, the Court during Day’s defendant in error,” he believed they should time had a heavily congested docket. For “submit in silence” because of his concern example, the Court docketed 1,069 cases for that the Court may “adhere to the decision October Term 1915 and disposed of 547 of notwithstanding such express dissent, [and] those cases.33 A Westlaw search indicates the decision might do general mischief by that the Court published 234 merit opinions being cited as precedent.” 24 Pitney further that term. (In contrast, the Court wrote only noted that if “in spite of my suggestion to the seventy-six merit opinions during October contrary above made, you still feel the dissent Term 2011.)34 One newspaper went as far as ought to be written, I will write something to call the Supreme Court “crippled” by work upon the lines indicated in your letter.” Day after Justice Day fell ill and Justice Hughes responded that should Justice Pitney write a resigned from the Bench in 1916.35 When silent dissent, he would also join his name.25 asked about the workload of a Supreme Court However, he added that he was also “content Justice, Day replied that “[h]e is the hardest to let the whole thing go.” The decision, worked man in the government, I think.”36 published five days later, ultimately did The Court took pride in its efficiency in include a silent dissent from Day and disposing of cases. Chief Justice Edward D. Pitney.26 Similarly, regarding a different White conveyed his excitement to Day about case,27 Day wrote to Justice Willis Van the Court’s productivity for October Term Devanter that he hoped he would “say a 1915 when he wrote: “I honestly believe word” because Day disagreed with the when we come to the end of this year we will majority opinion.28 Day stated that he would have made the best showing that the Court has JOURNAL OF S UPREMEWILLIAM RUFUSC OURT DAY: A REEVALUATIONH ISTORY 41 Day wrote the majority opinion in Hammer v. Dagenhart (1918), invalidating a congressional enactment that prohibited the interstate shipment of goods produced by child labor. Why did he seemingly switch from his position in Lochner thirteen years earlier? ever made in history, so far as quantity is The media took note of the Justices’ heavy concerned, and I hope and pray we will not workload. The Philadelphia Inquirer de- have fallen below a proper standard of scribed the 1915 Term as the busiest since quality.”37 At the close of the term, the Chief 1890.40 Another newspaper reported favorably Justice proudly reported to Day (who had that the Justices “are called among the hardest been ill much of the term), that “[w]e took off working government officials” and “devot[e] the docket more than we took last year, which to work each day more hours than any other you know was a record breaking one, and we officials excepting the president and members left fewer cases on the docket than we did of his cabinet.”41 Media outlets also reported when we rose last year.”38 He even joked that the efforts of individual Justices.42 The New Justice Holmes was so busy with his Court York Times declared Justice Holmes the “ready obligations that he no longer reads the opinion writer of the Supreme Court,” noting newspaper.39 that his opinion total for October Term 1912 JOURNAL OF 42 S UPREMEJOURNAL OF SUPREMEC OURT COURT HISTORYH ISTORY equaled one short the number written by Harlan wrote his opinion as a majority Justices Hughes, Van Devanter, and Joseph statement, with the Court originally voting R. Lamar combined.43 Justice Day ranked 5–4 to uphold the New York law.49 After one second that term, penning twenty-six opinions Justice changed his mind between the original compared to Justice Holmes’s thirty-two. conference and the final vote, Harlan made These articles hint that at least one barometer only minor changes to his opinion and the public used to judge the Supreme Court was submitted it as a dissent.50 It is possible the Court’s productivity—something that that Day originally voted to join the majority, would have declined if individual Justices but may have felt reluctant to abandon Harlan had decided to write a large number of dissents.
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