The following is a series of questions prompted by Stephanie Slater’s “Edward Terry Sanford: A Tennessean on the U.S. Supreme Court” (University of Tennessee Press, 2018). This is the first biography of a justice whose contributions to the Supreme Court in the 1920s were overshadowed in life by those of his more famous colleagues, including Justices Oliver Wendell Holmes and Louis Brandeis, and even in death, because he passed away on the same day as retired Chief Justice William Howard Taft. This work shines a new light on Sanford’s place in history and on the Taft Court.

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Welcome, Stephanie, and thank you for taking the time to participate in this question-and-answer exchange for our readers.

QUESTION: In the opening paragraph of your final chapter, you quote a senator during the unsuccessful 1970 confirmation hearing for Judge G. Harrold Carswell: “I realize that men of limited capacity have served on the Court in the past. … For every Oliver Wendell Holmes, we can dredge up an Edward T. Sanford.” It remains largely true today that, as you write, “Sanford is essentially consigned to oblivion.”

“It is time for Sanford to emerge from obscurity,” you claim. Why?

SLATER: Sanford was not a man of “limited capacity.” He was probably the most educated justice to ever serve on the U.S. Supreme Court. He was always ranked at the top in his classes and was awarded five earned degrees, from the University of Tennessee (B.A. and Ph.B.) and Harvard (B.A., M.A. and L.L.B.). He was an editor of the Harvard Law Review and graduated at the top of his class. Sanford was a patron of the arts, literature and sciences as well as a well-known writer and public speaker. He was an accomplished attorney and left an impeccable record as a federal district judge.

Sanford’s lasting legacy is his role in profoundly altering American federalism by triggering the incorporation process with his opinion in Gitlow v. New York. His full potential was not realized because of his short tenure and the fact that he served on the Taft Court, where most of the justices felt presumptively obligated to join opinions rather than dissent, even if they disagreed with their content. Although he was overshadowed by the likes of Holmes and Brandeis, he appears in a positive light when compared with other justices of his time. Justice Willis Van Devanter wrote a lower proportion of majority opinions than any other Taft Court justice. Justice Mahlon Pitney was described by Taft, the president who appointed him, as a weak member to whom he could not assign cases. Justice Pierce Butler is considered a “distinct failure” by many court observers. Justice James Clark McReynolds, of course, tops the list of failures.

QUESTION: Sanford was born in 1865 in Knoxville, a city in East Tennessee that had recently endured military occupation by both Confederate and Union forces during the Civil War. In general, East Tennesseans remained more pro-Union during the war than did Tennesseans from other portions of the state.

How did Sanford’s regional identity shape him?

SLATER: East Tennessee was different from Middle and West Tennessee. Crop practices in East Tennessee did not rely on slave labor, and, prior to the war, the area had been a Whig (anti-Andrew Jackson/anti-Democratic) stronghold politically. The Republican Party filled the void left with the demise of the Whigs, and the strength of the party in the area has not waned since the Civil War. Sanford was an East Tennessee Republican, nurtured in a community and in a family that had been divided during the war. His father, E.J., a Unionist originally from Connecticut, was forced to flee Knoxville in April 1862 to avoid becoming a Confederate soldier pursuant to the Rebel Conscript Law. However, his mother’s family supported the Confederacy. Sanford became a loyalist to the North in the midst of the South. His father, a shrewd businessman, had the foresight to see that cooperation with respectable former Confederates would ensure the most successful and profitable outcomes. E.J. established himself as a postwar economic leader, and the family became one of the richest and most prominent in Knoxville. Throughout his legal career, Sanford, like his father, cultivated friendships with influential former Rebels (i.e., Democrats), such as U.S. Supreme Court Justice Horace Lurton and Chief Justice W.D. Beard of the Tennessee Supreme Court, and these men often advocated on Sanford’s behalf. Interestingly, the push for the placement of Sanford on the U.S. Supreme Court was significantly influenced by Southern “States’ Rights” Democrats. One Tennessee Democrat observed that “Democrats will be as well satisfied with [Sanford’s] appointment as if he were one of them. In fact his brand of Republicanism … has tended largely to wipe out that prejudice which has kept the Southerner in the Democratic ranks.” Although Sanford was shaped by his unique background in East Tennessee, his appointment was viewed by Southerners as acknowledgment of the importance of the South as a region.

QUESTION: Sanford was the last district judge elevated directly to the Supreme Court. As you note, he had hoped that President Theodore Roosevelt would nominate him to the U.S. Court of Appeals for the 6th Circuit. Do you think he would have been a different justice if he had gotten his original wish?

SLATER: Roosevelt appointed Sanford to a judicial post covering two districts, the Eastern and Middle Districts of Tennessee. The amount of territory covered by the two districts was expansive and the workload was enormous. Sanford found it unpleasant to impose punishment and to rule immediately upon the questions that arose during trial. Because he was an assiduous researcher who paid careful attention to details and preferred ample time for contemplation and reflection, the work of the district court was contrary to his taste. Accordingly, Sanford started seeking an appellate court appointment soon after gaining the district court position, as he thought the courts of appeals would better suit him as a judge. Although his name was suggested to fill three vacancies on the 6th Circuit, he was never nominated.

If Sanford had gained a 6th Circuit post instead of the district court seat or in addition to the district court position, I believe that he would have been a different justice. Time on the intermediate appellate court might have inspired greater confidence in his decision-making and better sharpened his ability to timely craft appellate-level opinions prior to his elevation to the Supreme Court. Although Sanford was confident in his abilities, he was always anxious to have his judgment confirmed by the others. If he had served on the 6th Circuit instead of preparing opinions in solitude for 15 years, his skills would have been honed by his interactions with his colleagues.

QUESTION: You write that “Sanford’s greatest impact on American law came in the area of civil liberties.” In particular, you write that the “incorporation aspect” of Sanford’s opinion in Gitlow v. New York became the decision’s “most important legacy.” You briefly mentioned this decision above, but can you elaborate on this a bit more for our readers?

SLATER: Prior to Gitlow, the Supreme Court had refused to apply the guarantees of the Bill of Rights to the states. Sanford stated in Gitlow: “For present purposes, we may and do assume that freedom of speech and of the press which are protected by the First Amendment from abridgment by Congress are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.” The statement is generally recognized as the beginning of the process of making the Bill of Rights applicable to the states through the 14th Amendment’s due process clause. After Gitlow, the court continued the process of incorporating most of the remaining first eight amendments, resulting in a shift toward constitutional protection of the individual against overbearing local governmental action. In my view, no constitutional issue is of greater practical interest to the everyday lives of Americans than the validity of the incorporation doctrine.

QUESTION: “Viewed through a modern lens,” you write, “a low point of Sanford’s time on the Taft Court came in 1927 with the case of Buck v. Bell,” in which Sanford joined Holmes’ eight-justice majority opinion upholding a Virginia law authorizing the forced sterilization of a woman the state deemed “feeble minded.”

How do you think Sanford thought about Buck v. Bell? I note that you relate this case to an earlier incident in Sanford’s life when, as member of the University of Tennessee’s board of trustees, he “tried to avoid taking a position on the religiously-charged evolution debate.”

SLATER: In 1923, the State of Tennessee had been stirred to a religious fervor over the evolution issue. Although Sanford was deeply religious, when the issue of firing some University of Tennessee professors for teaching the theory of evolution came before the board of trustees, Sanford, the board’s chairman, resigned when the meeting began. As a new U.S. Supreme Court justice, he thus avoided an open clash among his religious nature, his scientific knowledge and his concern for the university.

He was not able to avoid the issue in Buck v. Bell. The eugenics movement, which coincided chronologically with the anti-evolution crusade (whose proponents vehemently opposed eugenics), found considerable intellectual acceptance during the timeframe of the Taft Court. In addition to Holmes, Taft was an enthusiast of the theory, along with researchers at leading U.S. universities and foundations. By 1925, 23 of the 48 states had passed at least one eugenics-based sterilization law. Eventually, 35 states enacted laws to compel the sexual segregation and sterilization of individuals viewed as eugenically unfit. Despite Sanford’s deep religious roots and William Jennings Bryan’s cries that eugenics was “brutal,” the “educated” arguments of the day persuaded Sanford to sign on to the decision. He probably was also swayed by the fact that such decisions by a state were viewed by the court as proper under the police power.

QUESTION: You give some statistics about Sanford’s jurisprudence: “He wrote only seven dissents or joined twenty-three dissenting opinions and seven concurring opinions. In an effort to be a team player and to assist the Court to speak with one voice, Sanford changed his vote to join the Court opinion ninety-three times.”

Does the fact that Sanford “generally suppressed any disagreement with his colleagues” show us any differences between the Taft Court of the 1920s and today’s Roberts Court?

SLATER: I recently read an article that described the Roberts Court as similar to the Taft Court. However, a major difference in my view is that Taft aggressively encouraged teamwork and unanimous decisions. Taft believed that most dissents were “displays of egotism that weakened the Court’s prestige and contributed little of value.” According to Taft, it was more important to stand by the majority and give weight to the judgment in order to settle the issue. I think in large part, Sanford, ever the gentleman, deferred to Taft’s wishes and did not always utter his true opinions openly for fear of disappointing the man he believed was responsible for his seat on the court.

QUESTION: How do you think Sanford’s jurisprudence might look today if he had been more willing to write separately?

SLATER: If Sanford had been free to write separately, he might have been the Justice Sandra Day O’Connor or Justice Anthony Kennedy of his day. His record as a district court judge, as well as statistical analysis of his Supreme Court opinions, suggests that he would have steered a middle course between the liberal wing of Brandeis and Holmes and the conservative wing of Taft, Van Devanter, Justice George Sutherland, McReynolds and Butler. If Sanford had lived after Taft’s death and into the New Deal era, I think Sanford’s progressive tendencies would have surfaced. If he had served on the court when one-third of the nation’s workforce was jobless, industry was all but paralyzed, farmers were desperate and most of the banks were shuttered, I believe that he would have voted in support of New Deal legislation. Sanford was of the mindset that the court should not interfere with federal legislation and was, as I write in the biography, “considerably more flexible” than Van Devanter, Butler, Sutherland and McReynolds on government regulation. He interpreted the Constitution in a flexible manner that allowed the federal government to address national problems “if it could present a plausible case for enhanced federal regulation under existing national powers.” He exhibited at times a “pre-New Deal liberalism” and felt that “courts ought to defer to democratic lawmaking.”

QUESTION: When a fellow Tennessean became U.S. solicitor general, Sanford wrote to him, “[a]s I view it, the office of Solicitor General is the finest and most desirable office that a practicing lawyer can hold in the entire Government service.”

Do you think Sanford even liked being a judge or justice?

SLATER: I think Sanford both loved and hated being a jurist. As an assistant attorney general in Washington, Sanford was content with the practice of law on the appellate level. He was interested in being appointed solicitor general, a position he considered “the position of all positions.” He was ambivalent about the prospect of what he considered to be the isolation of a judge. In fact, he declined Roosevelt’s initial offer of the district judgeship. After taking the bench, Sanford later reflected that he “did not want to go on the bench, for I loved the profession of the lawyer.” He recalled that “one of the saddest days of my whole life was when I made my last argument before the Supreme Court in Washington when I knew that I would never have again that most delightful of intellectual exercises.” Upon leaving the district court bench, he remarked, “It is one of the penalties–and a great penalty–of the judicial life, that it is so largely an isolated life; and to one who loves his fellow men, it is a great deprivation that his work from day to day, has to be done in solitude, and alone, out of touch, in a large measure.” His comments throughout his time on the bench reveal that his judicial career brought him loneliness and isolation. Toward the end of his time as a district judge, Sanford noted that his dockets were crowded, his workload very heavy and he was under constant pressure. He observed, however, that he found “enduring satisfaction and contentment in [his] work.”

Posted in Book Reviews, Featured, Supreme Court history

Recommended Citation: Andrew Hamm, Ask the author: Meet Justice Edward Sanford, SCOTUSblog (Dec. 17, 2018, 11:02 AM), https://www.scotusblog.com/2018/12/ask-the-author-meet-justice-edward-sanford/