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Marquette Law Review Volume 81 Issue 4 Summer 1998: Symposium: Commemorating Article 3 150 Years of Wisconsin Law Shaping Debate, Shaping Society: Three Wisconsin Chief Justices and Their ounC terparts Joseph A. Ranney Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation Joseph A. Ranney, Shaping Debate, Shaping Society: Three Wisconsin Chief Justices and Their Counterparts, 81 Marq. L. Rev. 923 (1998). Available at: http://scholarship.law.marquette.edu/mulr/vol81/iss4/3 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. SHAPING DEBATE, SHAPING SOCIETY: THREE WISCONSIN CHIEF JUSTICES AND THEIR COUNTERPARTS JOSEPH A. RANNEY* One of the most common devices which has been used over the years to humanize the legal profession and spark public interest in it is the por- trayal of judicial dissenters. Most portrayals have focused on members of the U.S. Supreme Court. Justice Oliver Wendell Holmes has been known as "the great dissenter" for many years and has often been portrayed (not entirely accurately) as a lonely voice of reason and enlightenment on the Court during the early 20th century. Recently several authors have drama- tized the disagreements between Justice William Brennan and Chief Jus- tice William Rehnquist during the 1970s and 1980s as a fierce struggle be- tween Brennan's campaign to preserve the flame of Warren Court liberalism and Rehnquist's campaign to dismantle it.' Whether the popular educational benefits of these portrayals compensate for their lack of legal nuance is an open question. Few such analyses have been done at the state court level.2 This article takes a step in that direction: it examines three pairs of Wisconsin supreme court justices whose service covered most of the state's first century. Chief Justice Luther S. Dixon (1859-74) and Justice Byron Paine (1859- * B.A., University of Chicago, 1972; J.D., Yale Law School, 1978; Shareholder, DeWitt Ross & Stevens, S.C., Madison, Wisconsin, practicing primarily commercial, intellectual prop- erty, and personal injury litigation. Mr. Ranney is the author of numerous publications on Wis- consin legal history and other legal topics. He received the Charles Dunn Author Award from the State Bar of Wisconsin for legal writing in 1993. He is the author of a book on the history of Wisconsin's legal system which will be published by the University of Wisconsin Law School in the near future. 1. CATHERINE DRINKER BOWEN, YANKEE FROM OLYMPUs: JUSTICE HOLMES AND HIS FAMILY (1944); PETER IRONS, BRENNAN VS. REHNQUIST: THE BATTLE FOR THE CONSTITUTION (1994); see also, eg., TINSLEY E. YARBROUGH, JOHN MARSHALL HARLAN: GREAT DISSENTER OF THE WARREN COURT (1992). 2. Indeed, there have been few historical studies of state court judges in general. The leading studies of individual judges are LEONARD W. LEVY, THE LAW OF THE COM- MONWEALTH AND CHIEF JUSTICE SHAW (1957); ALFONS J. BEITZINGER, EDWARD G. RYAN: LION OF THE LAW (1960); and JOHN P. REID, CHIEF JUSTICE: THE JUDICIAL WORLD OF CHARLES DOE (1967). Shaw served on the Massachusetts supreme court from 1830 to 1860, Ryan served on the Wisconsin supreme court from 1874 to 1880 and Doe served on the New Hampshire supreme court from 1859 to 1874 and 1876 to 1896. MARQUETTE LAW REVIEW [81:923 64, 1867-71) served during the pioneer era of Wisconsin law. They led op- posing sides of a debate over Wisconsin's relationship with the federal gov- ernment which dominated state politics during the Civil War era. They also pursued different approaches to several legal issues of vital importance to Wisconsin during its transition from an agricultural to a mixed industrial and commercial economy. Chief Justice John B. Winslow (1891-1920) and Justice Roujet D. Mar- shall (1895-1918) helped shape the court's approach to the fundamental economic and political reforms of the Progressive era. Winslow vigorously advocated a course of "constructive conservatism": his views influenced the court's decision to defer to and uphold most of the reform laws of the era, and helped shield the court from the political attacks suffered by other state courts which struck down laws more freely. Marshall played a useful though largely unsuccessful role as the court's voice of caution: he argued that constitutional rights should not be tailored to the times and urged the court to scrutinize reform laws closely for interference with the liberty and property rights it had fashioned during the 19th century. After Winslow departed from the court Chief Justice Marvin Rosen- berry (1916-50) carried on Winslow's legacy of legal accommodation to so- cial reform. Rosenberry realized earlier than most judges the central role which regulatory agencies would play in modem American government and during the 1920s he forged a new standard of judicial deference to ad- ministrative action. In the 1930s he applied Winslow's approach of "constructive conservatism" to economic and labor reform laws the Wis- consin legislature passed in response to the Depression. After Justice Ed- ward Fairchild (1930-57) joined the court, he took over Marshall's role as a voice of caution that in accommodating social reform, the courts must not overlook the importance of protecting individual rights. This article examines the three chief justices and their counterparts from both a personal and a longitudinal perspective. Its premises are first, that ongoing debates and differences of opinion between judges can illu- minate the way in which state courts resolve important legal questions and second, that changes over time in judicial personnel and in the debates which occupy state courts can illuminate the ways in which state legal sys- tems evolve. In particular, it touches on the perennial question: to what extent are legal systems shaped by the personal and intellectual force of in- dividual lawmakers, and to what extent by broader social forces? 1998] THREE CHIEFJUSTICES AND THEIR COUNTERPARTS 925 I. DIXON AND PAINE A. FirstPhase of the States Rights Debate: The Booth Cases Byron Paine was born in Ohio in 1827. The Paines were fervent aboli- tionists who played a prominent role in fostering the abolition movement in northern Ohio. Paine's family moved to Milwaukee in 1847 and he plunged into law and politics soon afterward. Both Paine and Dixon came to fame through Sherman Booth, a Mil- waukee abolitionist leader. In 1852 a Missouri slave named Joshua Glover escaped to Wisconsin. Two years later Glover's owner discovered he was living in Racine and obtained a writ for his arrest under the Fugitive Slave Act of 1850. The Act was deeply unpopular throughout the north because it was one of the first federal laws which supported slavery directly and be- cause it required northern states to help slaveowners recapture runaway slaves? Booth organized a mass meeting in front of the Racine County jail; after listening to him speak the crowd broke into the jail and released Glover, who made his way to safety in Canada. Federal authorities then brought charges against Booth for obstructing enforcement of the Act. Booth quickly realized he had been handed an opportunity to chal- lenge the Act, and he retained Paine to represent him. Paine applied to Wisconsin supreme court justice Abram Smith for a writ of habeas corpus. Paine attacked the Act's constitutionality on several grounds previously advanced by abolitionist lawyers and rejected in other states,4 but he also advanced a novel argument: that the Act violated state sovereignty. States rights would play a central role in Paine's legal philosophy and in Wiscon- sin's legal history for the next 20 years. Citing a long line of authority dating back to the Kentucky and Virginia Resolutions of 1798-99, Paine contended the Wisconsin supreme court had just as much right as the United States Supreme Court to determine the constitutionality of federal laws and that it should ignore previous Supreme Court decisions upholding the 1850 Act's predecessor statute The federal 3. 9 Stat. 60 (1850). Wisconsin's entire Congressional delegation had voted against the Fu- gitive Slave Act, irrespective of party. 2 RICHARD N. CURRENT, THE HISTORY OF WIS- CONSIN: THE CIVIL WAR ERA, 1848-1873, at 208 (1976). 4. These included arguments that the law violated Art. HI of the Constitution by providing for hearings before federal commissioners rather than judges; that the fugitive clause in Art. IV, § 2 of the Constitution did not provide an enforcement mechanism; and that because Wisconsin had not enacted enforcement measures the Act could not be enforced within the state. For a detailed general history of the legal wing of the antislavery movement see ROBERT M. COVER, JUSTICE ACCUSED (1975). 5. Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842); Jones v. Van Zandt, 46 U.S. (5 How.) MARQUETTE LAW REVIEW [81:923 constitution, said Paine, was "a mere article of compact between the States, depending for its execution entirely on their integrity and good faith." The cause of union would best be served by narrowly construing federal powers "and steadfastly resisting all encroachments upon the rights of the States." Paine recognized that "difficulties and conflicts might result" from his states rights doctrine--even, ultimately, legal anarchy and secession-but reasoned that "storm [was] not so fatal as stagnation" and was better than "federal tyranny and usurpation."6 A few days later Justice Smith took Wisconsin and the nation by sur- prise when he released Booth and declared the Act unconstitutional on all of the grounds urged by Paine.
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