Legal history highlight: Two scholars assess the life and legacy of Justice Edward Sanford
Shortly after Edward Sanford was confirmed as the Court’s seventy-second Justice in 1923, an Illinois newspaper observed that liberals were “quite as much pleased over” Sanford’s appointment as they were “distressed over that of Pierce Butler,” who had taken a seat on the Court less than a month before. “Liberals,” the paper continued, “in fact are claiming Judge Sanford as one of themselves just as they have claimed” Justices Oliver Wendell Holmes and Louis Brandeis.
More recent assessments of Sanford’s tenure have him “leaning to the right, but only slightly,” as Russell Galloway writes in a 1984 review of the Taft Court. And an article by Stephanie Slater, published this month by the Journal of Supreme Court History, reports that Sanford has “generally been thought of as a staunch conservative.” This shift in reputation and the lack of scholarly attention paid to Sanford compared with other Justices from his era make Slater’s article and a companion piece by John Scheb very timely for examining Sanford’s life and clarifying his contribution to the Court’s jurisprudence.
A Knoxville native like Sanford, Scheb largely focuses on Sanford’s early life and career in their hometown in expanding upon a lecture he gave last year to the Historical Society of the U.S. District Court for the Eastern District of Tennessee and the East Tennessee Historical Society. Slater, who is writing a full-length biography of Sanford, focuses on his jurisprudence on the Court.
As Scheb recounts, Sanford had the early good fortune to be born a year after a deadly cholera epidemic in 1864, which claimed his two older siblings, to wealthy parents: his “tycoon” father operated “one of the largest” pharmaceutical companies in the South and also held interests in timber, mining, and banking.
After obtaining three degrees from Harvard – an achievement that, Scheb reports, made him “something of a unicorn” in Knoxville – Sanford returned in 1890 to practice law in his hometown. Before beginning to practice, Sanford had to pass what then-exam administrator and future Supreme Court Justice Horace Lurton described as “the severest examination any man ever went through”; Scheb’s research, however, suggests that Lurton, who did “most of the talking,” may have been exaggerating.
In 1906, Scheb recounts, James McReynolds – another future Supreme Court Justice and fellow Tennessean – recruited Sanford to help prosecute violations of the new Sherman Antitrust Act. During his stint at the Department of Justice, Sanford also participated in the only criminal trial ever held by the Supreme Court: United States v. Shipp, in which Sanford helped to win a conviction of a Chattanooga sheriff who, disregarding an order from the Court, allowed a mob to lynch a black prisoner being held at the county jail.
In 1908, President Theodore Roosevelt appointed Sanford as a federal district judge in Tennessee, where over the next fourteen years he would develop a “reputation as a thorough, cautious, and impartial jurist.” After Justice Mahlon Pitney’s resignation in 1922, Chief Justice William Howard Taft – to whom, Scheb writes, Sanford became closest on the bench, “both personally and philosophically” – urged President Warren Harding to choose Sanford over two better-known appellate judges, Learned Hand and Benjamin Cardozo.
Sanford came to the Court in the “volatile atmosphere” of the 1920s – in which, Scheb suggests, “the nation was experiencing a wave of political discontent that was much more extreme” than today’s. In this context, Scheb writes, Sanford made his “principal contribution to American jurisprudence” in First Amendment law, “specifically the vital freedoms of speech, press, assembly and association.” After reviewing three of Sanford’s First Amendment opinions, Scheb concludes that the Court (and Sanford in particular) was not “a reactionary behemoth bent on snuffing out all political discontent,” but was instead “determined to separate legitimate political activism from what was perceived to be a clear and present danger to the constitutional system.”
Slater surveys Sanford’s opinions more broadly, noting that most involve “technical matters relating to war claims, tax matters, government, admiralty, business, patents, and especially bankruptcy.” After Sanford’s death, lawyers who practiced regularly for the Court described his opinions as generally “thorough, conscientious, and exacting.” But not everyone approved. Early in his tenure, Sanford received a terse and dismissive note from Holmes about a draft Sanford had circulated. Holmes wrote that, despite “the effective and powerful example of Brandeis to the contrary I don’t think opinions should be written in the form of essays with notes – they are theoretically spoken.”
Sanford’s opinions in statutory-construction cases reflect, Slater suggests, a “desire to benefit the public.” For example, Sanford wrote for the Court in an opinion that rejected a constitutional challenge to a California law that required companies to pay benefits to families of employees who were killed in accidents on the job, even if those family members lived overseas.
In cases involving the relative strength and size of the federal government, Slater characterizes Sanford’s record “one of upholding federal power against so-called rights of states.” She cites as an example Sanford’s willingness to “to go to greater limits” than other Justices in upholding the enforcement of Prohibition laws. Slater attributes this willingness to Sanford’s background: his father had planned a new, “dry” company town near Knoxville, and the family owned part of a local newspaper that was a “staunch supporter of Prohibition legislation.”
As a former antitrust prosecutor himself, Slater writes, Sanford “favored strict adherence” to antitrust laws, even against trade associations and labor unions that were not the “primary intended targets” of such legislation. For instance, Sanford joined Taft’s opinion in Coronado Coal Co. v. United Mine Workers of America, the first time that the Court held unions subject to suit.
Slater cites two cases that restricted the power of the Federal Trade Commission and thus, in her view, show Sanford’s general “pro-business inclination.” However, in certain cases Sanford’s opposition to substantive due process – a principle that prohibits the government from infringing on fundamental constitutional rights – limited his support for businesses, which at that time often sought to rely on substantive due process to benefit from liberty-of-contract rulings. For instance, in what Slater considers his “strongest statement embodying substantive due process,” Sanford dissented in the “infamous” case Adkins v. Children’s Hospital of D.C. The majority in that case, “[t]urning the clock back to 1905 and Lochner v. New York,” found that a minimum-wage law interfered with the liberty of contract, but Sanford joined Taft in dissent. Nevertheless, as Slater notes, other cases suggest that Sanford “was not a rigid and inflexible opponent” of substantive due process.
Slater concludes that Sanford was “relatively sensitive to the rights of individuals.” As evidence, she points to Sanford’s dissent from the Court’s decision denying American citizenship to Rosika Schwimmer, who as a pacifist refused to swear an oath promising to fight in the nation’s defense. Slater suggests that Sanford may have been influenced by past persecution of his mother’s family for their religious beliefs, and after the decision The New York Times named Sanford a “Champion of Individual Rights.”
Sanford’s record in cases involving the constitutional rights of blacks and minorities was, Slater observes, more “mixed.” Although Sanford joined the Court in striking down a Texas law that barred blacks from voting in the state’s Democratic primary, he also concurred in the Court’s decision upholding – against a challenge from a child of Chinese descent – segregated public education. Slater suggests that Sanford’s votes in cases that did benefit minorities – like Harmon v. Tyler, which relied on the Court’s prior cases to strike down a Louisiana segregation law on the ground that it violated property rights – reflect his “adherence to strict interpretation and respect for precedent” more than his sensitivity to racial concerns.
After just seven years on the Court, Sanford died suddenly on March 8, 1930 – the same day on which Taft, Sanford’s “close friend and mentor,” passed away after a longer illness.
Scheb closes his article with a rhetorical question, wondering how Sanford’s presence could have influenced the Court’s response to “the constitutional challenge of the New Deal” in the 1930s. While we cannot answer that question, it speaks to the history that our country’s constitutional questions are answered within specific human contexts. Together, Scheb and Slater help to flush out the portrait we have today of this Justice from the 1920s, one who by many accounts strove for a middle road on a number of issues.