Melville Fuller

In this 1895 political cartoon, Fuller is depicted placing a dunce cap with the words "INCOME TAX DECISION" on President Cleveland, who had signed the tax into law. The cartoon appeared in the Judge magazine; it was accompanied by a quotation from Senator David B. Hill praising the Court's decision.

According to legal scholar Bernard Schwartz, Fuller's most noteworthy decision was his 1895 opinion in Pollock v. Farmers' Loan & Trust Co.[22]^: 184 In 1894, Congress passed the Wilson–Gorman Tariff Act, which contained a rider that levied a two-percent tax on incomes exceeding $4,000 a year.[23]^: 285 Since it imposed the nation's first peacetime income tax, this provision was deeply controversial, provoking acrimonious debate along geographic, societal, and political lines.[2]^{: 117–118} Its challengers took the tax to court, where they argued that it was a direct tax that had not been apportioned evenly among the states, in violation of a provision of the Constitution.[3]^: 1487 (In practice, apportioning income tax by state would be impossible, so a ruling on this basis would doom federal income taxes.[2]^: 118) When the matter reached the Supreme Court, it unexpectedly agreed with the challengers and, by a 5–4 vote, struck down the income tax.[24]^: 805 The majority opinion, written by Fuller, held that the Framers intended the term "direct tax" to include property and that income was itself a form of property.[25]^{: 200–203} Fuller thus ruled the entire act to be unconstitutional.[26]^: 68 The decision provoked withering criticism from each of the four dissenters, including a paroxysm of ire by Justice John Marshall Harlan that one scholar characterized as "one of the most spectacular displays ever staged by a member of the Court".[3]^: 1487[26]^: 68–69 Harlan wrote that the decision "strikes at the very foundation of national authority", while Justice Henry Billings Brown opined it "approaches the proportion of a national calamity".[26]^: 68–69 Each dissenter decried the majority's perceived infidelity to precedent.[27]^{: 162, 173}

The Pollock decision was distinctly unpopular.[28]^: 173 Much of the public questioned whether Fuller's constitutional analysis was truly in good faith: many felt that the Court was more committed to protecting the wealthy than to following any particular legal philosophy.[5]^: 346 Former Oregon governor Sylvester Pennoyer even called for the impeachment of the justices in the majority.[24]^: 806 While the public outcry soon waned, support for a federal income tax grew substantially in subsequent years.[29]^: 64 The Sixteenth Amendment to the U.S. Constitution, ratified in 1913, abrogated Pollock by allowing Congress to levy income taxes without apportionment;[30]^: 1723 it marked only the third time in American history that a Supreme Court decision was reversed via constitutional amendment.[29]^: 59 However, the Supreme Court has never formally overruled Pollock's reasoning; to the contrary, Chief Justice John Roberts cited it in the 2012 Affordable Care Act case National Federation of Independent Business v. Sebelius.[24]^: 813 Law professor Erik M. Jensen noted in 2014 that most legal academics agree that Pollock was "obviously dead wrong";[24]^: 807 scholar Calvin H. Johnson called the decision "a terrible example of judicial bad behavior" that should be "reverse[d] in full".[30]^: 1734 Jensen takes a minority position, agreeing with Pollock[24]^: 807 and extending it to argue for the unconstitutionality of flat taxes[31]^{: 2334, 2407–2414} and wealth taxes.[32] In any event, Fuller's Pollock opinion remains relevant in contemporary public policy.[33]^: 8–9

Fuller was suspicious of attempts to assert broad federal power over interstate commerce.[34]^: 186 Questions about the scope of Congress's Commerce Clause authority commonly arose in the context of the Sherman Act, a major 1890 federal antitrust law.[2]^{: 128–129} In the first such case, United States v. E. C. Knight Co. (1895), Fuller led the Court in limiting the federal government's powers.[35]^{: 154–155} The Department of Justice had filed suit under the Sherman Act against the American Sugar Refining Company, arguing that it was a monopoly because it controlled over ninety percent of the American sugar refining market.[36]^: 111 Writing for an eight-justice majority, Fuller concluded Congress could not proscribe such monopolies because they only implicated manufacturing and thus did not fall under the Commerce Clause.[2]^: 129 Stating that "[c]ommerce succeeds to manufacture and is not a part of it," he maintained that the sugar-refining trust had no direct impact on interstate commerce.[37]^: 373 Fuller feared that a broader interpretation of the Commerce Clause would impinge upon states' rights, and he thus held the Sugar Trust could only be broken up by the states in which it operated.[2]^: 130 The case displays Fuller's tendency to support a limited federal government.[2]^: 130 The legal academy generally views Knight as an unduly restrictive interpretation of the Commerce Clause,[37]^{: 366–367} although legal scholar Richard Epstein has argued that it aligns with founding-era precedents.[38]^{: 1399–1400} The Court's expansive Commerce Clause decisions during the New Deal period essentially abrogated Knight.[2]^: 134

Fuller participated in several other major antitrust cases.[2]^: 129 In the 1904 case of Northern Securities Co. v. United States, a majority broke up the Northern Securities Company, a railroad holding company, believing it to be a monopoly.[2]^: 132 Fuller dissented, joining opinions written by Justices Edward Douglass White and Oliver Wendell Holmes Jr.[39]^{: 336, 341} The dissenters argued that simply holding stock in a company did not count as interstate commerce, and so they would have held that the Sherman Act did not apply to holding companies.[2]^{: 132–133} The justices were unanimous in Swift & Co. v. United States (1905), which gave the Court's blessing to antitrust enforcement against meat-packing companies.[2]^{: 133–134} Although meat-packing did not directly involve interstate commerce, the Court held that the Commerce Clause still applied because the meat products would eventually be sold across state lines.[2]^{: 133–134} Citing Swift and other cases, legal historian James W. Ely has argued that Fuller was not opposed to federal antitrust laws per se, but only to expansive readings of the Commerce Clause.[2]^: 134 In another antitrust case, Loewe v. Lawlor (1908), Fuller wrote for a unanimous Court that labor unions were subject to the Sherman Act.[34]^: 187 The ruling was commonly thought to evince antipathy toward organized labor.[26]^{: 218–219} Its broad interpretation of the antitrust laws appeared difficult to reconcile with Knight,[40]^: 43 and law professor David P. Currie wrote that the apparent contradiction "suggests that [Fuller] may not have been guided exclusively by neutral legal principles".[41]^: 901

Fuller's attempts to limit the national government's power did not always meet with the support of his fellow justices.[34]^: 186 He dissented from the Court's 1903 decision in Champion v. Ames, in which five justices upheld a federal ban on transporting lottery tickets across state lines.[42]^: 75–76 In his opinion, Fuller demurred that the majority's reasoning gave Congress "the absolute and exclusive power to prohibit the transportation of anything or anybody from one state to another.[26]^: 158 He feared that the law violated the principles of federalism and states' rights protected by the Tenth Amendment.[43]^: 47 The ruling in Ames was among the first to grant the federal government a de facto police power to protect the welfare of the public.[43]^: 45 It proved a historically significant step toward expanding congressional authority, and legal scholar John Semonche wrote that by resisting it, Fuller "sought to put his finger in the dike".[26]^: 158 The chief justice also dissented in McCray v. United States, a 1904 case that approved the use of the federal taxing power for regulatory purposes.[42]^: 73 McCray effectively allowed Congress to regulate intrastate commercial activity by simply levying taxes on it; the decision curtailed Fuller's opinion in Knight and showed his support for federalism could not always garner the support of a majority of the Court.[2]^{: 140–141}

Fuller in his Supreme Court chambers, circa 1899

Fuller's tenure on the Supreme Court, in the words of Schiffman, "witnessed the final passing of judicial tolerance of legislative experimentation and the final acceptance of the doctrine of substantive due process".[3]^: 1481 Soon after his arrival on the Court, the chief justice began joining with his colleagues to gradually erode the states' powers to regulate economic activity.[3]^: 1481 In Chicago, Milwaukee & St. Paul Railway Co. v. Minnesota (1890), for instance, Fuller and five other justices voted to strike down the railroad rates set by a Minnesota commission.[36]^: 108 The ruling held that the Due Process Clause contained a substantive component that subjected the states' regulatory decisions to judicial review.[2]^: 85 With Fuller's support, the Court in Allgeyer v. Louisiana (1897) unanimously expanded that component, concluding the Due Process Clause protected a right to enter into contracts.[3]^: 1482[36]^: 115 Allgeyer was the first case in the Court's history in which a state law was struck down on freedom-of-contract grounds,[3]^: 1482 and its implications stretched well beyond the insurance context in which it arose.[2]^: 96 According to Semonche, the decision heralded a "new and sweeping" interpretation of the Due Process Clause "that would haunt the Justices and American society for the next four decades".[26]^: 91

The era of substantive due process reached its zenith in the 1905 case of Lochner v. New York.[44]^: 181 Lochner involved a New York law that capped hours for bakery workers at sixty hours a week.[45]^: 520 In a decision widely viewed to be among the Supreme Court's worst,[45]^: 516 a five-justice majority held the law to be unconstitutional under the Due Process Clause.[14]^{: 588–589} The opinion, written by Justice Rufus W. Peckham and joined by Fuller, maintained that the liberty protected by that clause included a right to enter labor contracts without being subject to unreasonable governmental regulation.[46]^{: 1496–1497} Peckham rejected the state's argument that the law was intended to protect workers' health, citing the "common understanding" that baking was not unhealthy.[14]^: 590 He maintained that bakers could protect their own health, arguing that the law was in fact a labor regulation in disguise.[2]^: 98 In a now-famous dissent, Justice Holmes accused the majority of substituting its own economic opinions for the requirements of the Constitution.[46]^: 1500 Most scholars agree that the majority in Lochner engaged in judicial activism, substituting its own views for those of the democratically elected branches of government.[47]^: 874 The Fuller Court was not exclusively hostile to labor regulation: in Muller v. Oregon (1908), for example, it unanimously upheld an Oregon law capping women's working hours at ten hours a day.[2]^{: 100–101} Nonetheless, Fuller's decision to join the majority in the Lochner case, which the Court ultimately abandoned in West Coast Hotel Co. v. Parrish (1937),[45]^: 541 is a major reason for the low estimation in which history has held him.[48]^: 109

Because of his support for property rights, Fuller favored a broad conception of the judicial role, endorsing doctrinal developments that expanded the federal courts' power to issue injunctions.[34]^: 185 In the case of In re Debs (1895), for instance, Fuller and his fellow justices bolstered the judiciary's authority to enjoin deprivations of public rights.[36]^: 112 The case stemmed from an 1894 strike by the American Railway Union against the Pullman Company.[49]^: 260 A Chicago federal court issued an injunction against the union's leaders, ordering them to stop facilitating the strike.[2]^: 135[49]^{: 260–261} Union president Eugene V. Debs and other union officials defied the order, and the court sentenced them to prison for contempt.[49]^: 261 Debs challenged the conviction before the Supreme Court, but it unanimously denied him relief.[50]^: 102 Broadly construing the federal government's powers, the Court held the judicial branch had the power to enjoin anything that obstructed interstate commerce.[49]^: 261 The Debs case opened the door to injunctions in labor cases,[51]^: 49–50 and it substantially expanded the courts' equitable authority.[36]^: 112 The case of Ex parte Young (1908) similarly demonstrated Fuller's support for extending the courts' ability to issue injunctions.[34]^: 185 The case involved the Eleventh Amendment, which proscribes the federal courts from hearing lawsuits brought against states.[14]^: 1110 In Young, Fuller and seven other justices endorsed a way to sidestep that prohibition: suing an official of the state instead of the state itself.[36]^: 128 The landmark[52]^: 412 decision aided the Fuller Court in its quest to strike down state economic regulations, but its reasoning has permitted the federal judiciary to hear challenges to state laws in a wide variety of other contexts.[53]^: 164 Although some modern scholars have criticized the ruling in Young, attorney Rochelle Bobroff noted in 2009 that it "remains one of the most powerful tools to compel states to comply with federal law".[54]^{: 819–820} Ely characterized the decision as "a milestone in the Fuller Court's transformation of federal judicial power",[2]^: 184 and legal historian Edward A. Purcell Jr. said that it "helped create a newly powerful and activist federal judiciary that emerged at the turn of the twentieth century and continued to operate into the twenty-first".[55]^: 932

Fuller wrote the majority opinion in United States v. Shipp (1909),[26]^: 232 a singular decision in which the justices insisted that the authority of the Court be heeded.[56]^: 348 A Tennessee court sentenced Ed Johnson, an African-American man, to death for rape.[26]^: 231 His attorneys petitioned the Supreme Court for relief, arguing that racial bias had tainted the jury pool and that the threat of mob violence made the venue unfair.[26]^: 231 The Court agreed to issue a stay of execution, which prevented the death sentence from being carried out pending a ruling on Johnson's appeal.[56]^{: 193–196} But John Shipp, the sheriff, removed almost all the guards from Johnson's prison, allowing a lynch mob to enter the jail and kill Johnson.[26]^: 231 Shipp, his deputies, and members of the mob were charged with contempt of court on the basis that they had spurned the Court's stay order.[2]^: 185 In the only criminal trial conducted in the Supreme Court's history,[57]^: 128 the justices sat as a jury to determine the defendants' guilt.[58]^{: 422–423} Fuller, writing for a five-justice majority, found Shipp and several other defendants guilty of contempt.[56]^{: 333–334} In his opinion, the chief justice wrote Shipp had "not only made the work of the mob easy, but in effect aided and abetted it", acting "in utter disregard of this court's mandate and in defiance of this court's orders".[56]^{: 332–334} While the decision did not signal a sudden benevolence toward civil rights claims,[57]^: 128 Mark Curriden and Leroy Phillips write it constituted "the only proactive step the U.S. Supreme Court has ever taken to combat mob rule directly and demand that the public respect its authority and the authority of the rule of law".[56]^: 348

The Fuller Court in 1899

In the words of legal scholar John V. Orth, Fuller "preside[d] comfortably over a Court that turned a blind eye to racial injustice".[14]^: 372 In the infamous[59]^: 15 case of Plessy v. Ferguson (1896), he joined six of his colleagues in upholding a Louisiana law that required the racial segregation of railroad passengers.[60]^{: 321, 333}[61]^: 35 The majority opinion, penned by Justice Brown, rejected the claim that the law violated the Equal Protection Clause, maintaining instead that "separate but equal" distinctions were constitutional.[60]^: 321[62]^: 397 Citing "the nature of things", the majority asserted that equal protection did not require the "commingling" of blacks and whites.[62]^: 398 Brown also argued that the Louisiana law did not suggest that blacks were inferior,[60]^: 321 stating that it was based on "the established usages, customs and traditions of the people".[63]^{: 127–128} Justice Harlan dissented, using in the process the now-famous phrase "Our Constitution is color-blind."[64]^: 10 The Plessy decision placed the Court's imprimatur on Jim Crow laws.[65]^: 24 It instituted a half-century of what Louis H. Pollak called "humiliation-by-law",[61]^: 35 which continued until the Court reversed course in Brown v. Board of Education (1954).[64]^: 9–10 Fuller's decision to join the majority in Plessy has contributed significantly to his poor historical reputation.[48]^: 109

The Fuller Court was no more liberal in other cases involving race: to the contrary, it curtailed even the limited progress toward equality made under Fuller's predecessors.[66]^{: 198–200} For instance, Fuller joined the unanimous majority in Williams v. Mississippi (1898), which rejected a challenge to poll taxes and literacy tests that in effect disenfranchised Mississippi's African-American population.[36]^: 117 Even though a lower court had admitted the arrangement was intended "to obstruct the exercise of suffrage by the negro race", the Supreme Court refused to strike it down, reasoning that the provisions passed constitutional muster because they did not explicitly single out African-Americans.[67]^: 96 The Williams majority distanced itself from the Court's previous ruling in Yick Wo v. Hopkins (1886), in which the Waite Court had struck down a law that, while neutral on its face, discriminated against a racial minority.[66]^: 199[67]^: 96–97 In a 2021 book, Vernon Burton and Armand Derfner characterized Williams as one "of the most disgraceful decisions in Supreme Court history", writing it "abandoned Yick Wo" and "erased the Fifteenth Amendment".[67]^: 96–97

Fuller was among the seven justices who joined the majority opinion in Berea College v. Kentucky (1908),[36]^: 129 a segregation case in which the Court refused to apply its freedom-of-contract principles in defense of racial equality.[67]^{: 104–106} The decision involved the Commonwealth of Kentucky's Day Law, which required private colleges to segregate their students.[60]^{: 335, 337} In its challenge to the statute, Berea College cited Lochner and other similar cases to argue the law was "an arbitrary interference with the rights of the people in the conduct of their private business and in the pursuit of their ordinary occupations".[68]^: 731[69]^: 755 Such reasoning seemed likely to persuade the Court, given its history of striking down laws that interfered with the business decisions of private entities.[70]^{: 447–448} But the justices were not convinced, upholding the law on the basis that, because corporations had no right to be granted a charter, states could impose otherwise unconstitutional restrictions on them.[60]^: 337 Again dissenting, Justice Harlan criticized the law's infringement on the economic-freedom principles that the Court had articulated in other cases.[68]^: 732 The majority's reasoning stood in conspicuous conflict with its support for corporate rights in other contexts[2]^: 159 and Donald Lively wrote the ruling "illuminated the evolving duality of Fourteenth Amendment standards".[71]^: 94

As a result of the Spanish–American War, the United States took control of Puerto Rico and the Philippines, raising knotty legal issues about their status under the Constitution.[72]^: 430 The Supreme Court addressed these disputes in a series of rulings in the so-called Insular Cases.[73]^: 489 In Downes v. Bidwell (1901), a fractured Court ruled 5–4 that the people living in the territories were not entitled to the rights guaranteed by the Constitution.[74]^{: 225–229} Fuller, writing for the four dissenters, argued that Congress had no power to hold the territories "like a disembodied shade" free from all constitutional limits.[75]^: 792 He contended that the Constitution could not tolerate unrestricted congressional power over the territories, writing that it rejected that proposition in a way "too plain and unambiguous to permit its meaning to be thus influenced".[76]^: 72 Fuller's opinion was in line both with his strict-constructionist views and his party's opposition to American imperialism.[2]^: 176 While the Court has never adopted Fuller's position,[74]^: 182 scholars such as Juan R. Torruella have argued that it correctly interpreted the Constitution.[76]^{: 73, 94–95}

Fuller joined the majority in another of the Insular Cases: DeLima v. Bidwell (1901).[3]^: 1490 The Court held – again by a 5–4 vote — that Puerto Rico did not constitute a foreign country for purposes of federal tariff law.[75]^{: 793–794} Put together, Downes and DeLima meant that the territories were neither domestic nor foreign under American law.[75]^: 795 The Court was similarly unclear in Gonzales v. Williams (1904).[77]^: 7 In a unanimous opinion by Fuller, the Justices ruled that Puerto Ricans were not aliens under federal law, but they refused to decide whether the people of Puerto Rico were American citizens.[77]^: 23 In Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States (1890), a case involving Congress's power over the Utah Territory, a six-justice majority upheld an anti-polygamy law that dissolved the charter of the Church of Jesus Christ of Latter-day Saints and seized its property.[36]^: 109[78]^: 31 Fuller penned a dissent, in which he maintained that Congress had no authority to order the confiscation of property.[78]^: 34–35 Rejecting the majority's broader interpretation of federal power, Fuller expressed fear that the decision would afford Congress "absolute power" over the denizens of the territories.[2]^: 178[78]^: 35 Ultimately, Fuller's position was vindicated: Congress later passed a joint resolution restoring the church's property.[7]^: 148

Fuller was rarely amenable to the claims of Chinese immigrants.[79]^: 312 In the 1889 Chinese Exclusion Case, for instance, he joined Justice Stephen Field's opinion[79]^: 312 that unanimously rejected a challenge to the Chinese Exclusion Act.[80]^: 31 Although treaties with China allowed for immigration, the Court held that Congress was not bound by them, ruling that the Act abrogated all treaty obligations to the contrary.[80]^: 31 In Fong Yue Ting v. United States (1893), a majority held Congress had total authority over aliens and that they could be expelled on any basis.[73]^{: 487–488} Three justices, including Fuller, dissented, arguing that aliens were at least entitled to some Constitutional protections.[81]^: 14 According to Ely, Fuller's dissent shows that he "occasionally demonstrated concern over civil liberties".[34]^: 187 But he also dissented in United States v. Wong Kim Ark (1898),[79]^: 313 in which the Court ruled that the Fourteenth Amendment ensured birthright citizenship – automatic citizenship for all children born on American soil.[82]^{: 1248–1249} Writing for himself and Justice Harlan, Fuller claimed Chinese aliens were not "subject to the jurisdiction" of the United States because they retained allegiance to the Chinese emperor.[4]^: 146 Based on that fact, he concluded their children had no claim to American citizenship.[4]^: 146 The Wong Kim Ark decision has taken on additional significance as prominent Republican politicians, including Donald Trump, have called for the reversal of birthright citizenship.[82]^{: 1187–1188}

In 2013, a statue of Fuller, donated by a cousin,[95] was installed on the lawn in front of Augusta's Kennebec County Courthouse.[96] With Black Lives Matter protests and other attention in 2020, focus on the Plessy decision led to debate about the appropriateness of the statue's placement.[97] In August 2020, the Maine Supreme Judicial Court requested that the statue be removed, citing Plessy.[96] Kennebec County commissioners held a public hearing in December; a majority of participants favored the statue's removal.[94] In February 2021, the county commissioners voted unanimously to move the statue from county property, citing a desire to dissociate the county from racial segregation.[98] Commissioners appointed a committee to identify a new home for the statue.[99] In April 2021, the original donor offered to take the statue back, agreeing to pay the costs for removing it.[100] County commissioners accepted the offer later that month; they agreed that the statue could remain in front of the courthouse for up to a year while the original donor attempted to find a new location where it can be displayed.[100] In February 2022, the statue was removed and placed in storage.[101]