1 Robert McCloskey, The American Supreme Court 105 (Chicago: Univ. of Chicago Press, 1960).Google Scholar

2 Kammen, Michael, A Machine That Would Go of Itself, The Constitution in American Culture 185–216 (New York: Knopf, 1987). Aviam Soifer, The Paradox of Paternalism and Laissez-Faire Constitutionalism: United States Supreme Court, 1888–1921, 5 Law and History Rev. 249, 249–279 (1987).Google Scholar

3 McCormick, Richard L., The Discovery that Business Corrupts Politics: A Reappraisal of the Origins of Progressivism, 86 Am. Hist. Rev. 247–274 (1981).CrossRefGoogle Scholar

4 Compare Soifer, supra note 2, and Melvin I. Urofsky, Myth and Reality: The Supreme Court and Protective Legislation in the Progressive Era, Yearbook 1983, Supreme Court Historical Society 53–72 (Supreme Court Historical Society: Washington, D.C., 1983).Google Scholar

5 It should be noted that my concern here is with the general impact of the Court's decisions rather than with doctrinal evolution. From the point of view of doctrine, Bickel and Schmidt in fact agree that laissez-faire principles consistent with Lochner were the norm during the period.Google Scholar

6 A.F. of L. v. American Sash & Door Co., 335 U.S. 538, 555–556 (1948).Google Scholar

7 Unless otherwise noted the material discussed below is taken from The Judiciary and Responsible Government, abbreviated as JRG.Google Scholar

8 As quoted, JRG, 6–7.Google Scholar

9 Id., as quoted, 7, 24.Google Scholar

10 John Milton Cooper, Jr., The Warrior and the Priest, Woodrow Wilson and Theodore Roosevelt (Cambridge, Mass.: Harvard University Press, 1983).Google Scholar

11 In order to establish “socially responsive” government. Progressives relied upon experts and enlarged administrative structures.Google Scholar

12 The reader is urged to explore this book for innumerable examples. One is suggestive: McReynolds so detested Jews in general and Brandeis in particular that during the Court's weekly conferences, he would leave the room whenever Brandeis spoke and then return when Brandeis was finished. Eventually this practice ceased, but the two justices were never on speaking terms.Google Scholar

13 JRG, 309.Google Scholar

14 Id., as quoted, 17.Google Scholar

15 Bickel's quotations are at 253, 307.Google Scholar

16 Id., as quoted, 24.Google Scholar

17 Id., 316.Google Scholar

18 Harry N. Scheiber, Federalism and the Diffusion of Power: Historical and Contemporary Perspectives. 9 University of Toledo Law Review, 619–680 (1977–1978); Tony Freyer, Federalism. Jack P. Greerie. ed., Encyclopedia of American Political History. 546–564 (New York: Scribners and Sons, 1984).Google Scholar

19 First Employers' Liability Cases, 207 U.S. 463 (1908); Second Employers' Liability Cases, 203 US. 1 (1912).Google Scholar

20 JRG, 209.Google Scholar

21 Harold C. Livesay, Samuel Gompers and Organized Labor in America, 134 (Boston: Little, Brown, Co. 1978).Google Scholar

22 JRG, 419.Google Scholar

23 Tony Freyer, Harmony & Dissonance: The Swift & Erie Cases in American Federalism, 63–75 (New York: New York University Press, 1981).Google Scholar

24 Bickel, Compare, JRG, chapters III, V, VI, and Urofsky, Myth and Reality, supra note 4 at 53–72, and Urofsky, Melvin I., State Courts and Protective Legislation during the Progressive Era: A Reevaluation, 72 The Journal of American History 63–91 (1985). Bickel also shows that expanded federal authority could benefit benevolent causes. A striking instance of this involved efforts to protect migratory birds from random slaughter. In 1913 Congress, relying upon the commerce power, enacted legislation extending federal protection to various birds which migrated from Canada south through the United States. Lower federal courts declared that the legislation violated powers reserved to the states, whereupon the federal government appealed to the Supreme Court. After the case was argued it became apparent that the Court was divided 3 to 3 on whether to uphold the law. At this point Chief Justice White, a committed conservationist, personally intervened. He delayed the decision while, at his request, the Librarian of the Court researched thoroughly the issue, finding that a treaty could provide a constitutional basis for congressional action. White conveyed this finding to two interested U.S. Senators whose efforts resulted in a treaty with Great Britain, the Migratory Bird Treaty Act of 1918. The Court declared this measure constitutional in Missouri v. Holland (1920).Google Scholar

25 For example, compare Bickel's treatment of Brandeis to Allon Gal, Brandeis of Boston, 15, 138, 148, 176 (Cambridge, Mass.: Harvard University Press, 1980).Google Scholar

26 Gerald Fetner, Ordered Liberty: Legal Reform in the Twentieth Century (New York: Knopf, 1983).Google Scholar

27 As quoted JRG, 93, 117. Once on the Court, of course, McReynolds revealed quite different values.Google Scholar

28 Hans B. Thorelli, The Federal Antitrust Policy, Organization of an American Tradition (Baltimore, Johns Hopkins University Press, 1955), 265, 477–499, 596–597.Google Scholar

29 Soifer, supra note 2.Google Scholar

30 Ibid.; and Ellis Hawley, Three Facets of Hooverian Associationalism: Lumber, Aviation, and Movies, 1921–1930, Thomas K. McCraw, ed., Regulation in Perspective: Historical Essays, 95–123 (Boston: Harvard University Press, 1981).Google Scholar

31 Urofsky, Myth and Reality, supra note 4 at 70.Google Scholar

32 Scheiber at 619–680; Freyer, supra note 18, at 546–564.Google Scholar

33 220 US 506 (1911); US. v. Midwest Oil Co., 236 U.S. 459 (1915).Google Scholar

34 As quoted, JRG, 653.Google Scholar

35 The cases in order discussed in the text are: ICC v. Humbolt Steamship Co., 224 U.S. 474 (1912); Florida East Coast Line v. United States, 234 U.S. 167 (1914); Tap Line Cases, 234 U.S. 1 (1914). Bickel's discussion is at 656–657.Google Scholar

36 Enterprise Denied: Origins of the Decline of American Railroads, 1897–1917 (New York: Columbia University Press, 1971); and Aaron Austin Godfrey, Government Operation of the Railroads: Its Necessity, Success, and Consequences 1918–1920 (Austin, Texas: University of Texas Press, 1974).Google Scholar

37 Choate V. Trapp, 224 U.S. 665 (1912); as quoted, JRG, 675, note 102. Of course such decisions did not end long-standing congressional policies which often favored white developers and settlers. But this did not diminish the significance of the fact that the Court under Chief Justice White at least attempted to curb such policies.Google Scholar

38 William Letwin, Law and Economic Policy in America, The Evolution of the Sherman Act 117–238 (Chicago: University of Chicago Press, 1965).Google Scholar

39 Bickel does not revise Letwin's treatment of antitrust during the presidencies of Roosevelt, Taft, and Wilson. He does, however, use many primary sources which Letwin does not, thereby making a valuable contribution to research in the antitrust field.Google Scholar

40 Thomas K. McCraw, Prophets of Regulation: Charles Francis Adams, Louis D. Brandeis, James M. Landis, Alfred E. Kahn 144–147 (Cambridge, Mass.: Harvard University Press, 1984).Google Scholar

41 Letwin, supra note 38, at 258–270.Google Scholar

42 JRG, 727. The citations, in order, are: 219 U.S. 219 (1911); 235 U.S. 133 (1914); 245 U.S. 60 (1917); 235 U.S. 151 (1914); 238 U.S. 347 (1915).Google Scholar

43 JRG, 726, 727.Google Scholar

44 Schmidt addresses the argument that Roosevelt and other Progressives outside the South were concerned about peonage chiefly because white immigrants were, like blacks, entrapped ill the system. He argues persuasively that, because southern whites and Washington (privately) were the driving force for reform, their interests, which focused on blacks, made race the central issue. But see supra note 2, at 268–274.Google Scholar

45 As quoted, JRG, 869.Google Scholar

46 Ibid., as quoted. 119.Google Scholar

47 Soifer, supra note 2, at 250.Google Scholar