Pitney, Mahlon (1858–1924)

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PITNEY, MAHLON (1858–1924)

Mahlon Pitney was the last of President william howard taft's appointments to the Supreme Court. Organized labor and some progressives vigorously protested the nomination because of Pitney's antilabor opinions as a New Jersey state judge, but his views paralleled Taft's. During Pitney's decade on the bench (1912–1922), he made prophets of his critics, as his opinions reflected a consistent hostility to the claims of organized labor. Nevertheless, Taft, as Chief Justice, derided Pitney as a "weak" member of his Court.

in coppage v. kansas (1915) Pitney concluded that a Kansas statute prohibiting yellow dog contracts violated freedom of contract. The opinion largely followed doctrine laid down in lochner v. new york (1905), and reinforced in adair v. united states (1908), when the Court nullified an 1898 congressional law prohibiting railroads from imposing yellow dog contracts. In Coppage, Pitney attacked the state law as a restraint on a worker's right to contract, a right he saw as essential to the laborer as to the capitalist, "for the vast majority of persons who have no other honest way to begin to acquire property, save by working for money." Rejecting the statute's avowed intent of enabling workers to organize and bargain collectively, Pitney held that its primary effect was to interfere with "the normal and essentially innocent exercise of personal liberty or of property rights."

Two years later, Pitney wrote the Supreme Court's opinion favoring labor injunction and again sustained the validity of yellow dog contracts. In hitchman coal and coke co. v. mitchell (1917) he upheld an injunction forbidding the United Mine Workers from seeking to organize workers who had previously agreed not to join a union. Every miner who had affiliated with the union "was guilty of a breach of contract," he said; furthermore, Pitney found that the union knowingly had violated the employer's "legal and constitutional right to run its mine 'non-union.' " Pitney's implacable defense of yellow dog contracts and injunctions galvanized labor's growing antagonism to the federal judiciary and its demands for congressional relief. Eventually, in 1932, the norrislaguardia act forbade federal courts to enforce yellow dog contracts or issue labor injunctions, thus severely limiting the effects of Pitney's coppage and hitchman opinions.

in duplex printing co. v. deering (1921) Pitney reinfoced the judicial ban on secondary boycotts, thus frustrating organized labor's understanding that the clayton act (1914) had legalized such practices. Pitney followed an earlier decision against secondary boycotts (loewe v. lawlor, 1908) and argued that a sympathetic strike supporting a secondary boycott could not be deemed "peaceful and lawful persuasion as allowed in the Clayton Act." Although Pitney regularly invoked judicial doctrines that inhibited labor's right to organize, he occasionally defied prediction. In Mountain Timber Co. v. Washington (1917) Pitney led a 5–4 majority that sustained a state workers ' compensation law requiring all employers to contribute to a general state fund, regardless of wheter their employees had been injured. He found that the statute did not deprive employers of their property without due process of law, and furthermore, it had a reasonable relationship to the general welfare. Four years later, in truax v. corrigan (1921), he joined oliver wendell holmes, louis d. brandeis, and john h. clarke in dissent against Chief Justice Taft's opinion invalidating an Arizona law modeled on the labor provisions of the Clayton Act. In another rare deviation from his norm, Pitney joined the dissenters who favored the dissolution of the United States Steel Corporation.

Typically, judges such as Pitney would presume that regulatory laws such as Kansas's prohibition of yellow dog contracts and the labor provisions of the Clayton Act violated liberty of contract or property rights. Yet Pitney made no such assumption when an individual confronted the criminal process. In the notorious case of frank v. mangum (1915), for example, Pitney maintained that the state of Georgia had "fairly and justly" done its duty. Pitney also vigorously supported the national government's prosecution of dissenters and radicals following world war i. In Pierce v. United States (1920) he sustained the conviction of socialists who "knowingly" and "recklessly" distributed "highly colored and sensational" and "grossly false" statements about the government's conduct of the war. The Pierce decision solidified the Court's shift from Holmes's clear and present danger interpretation of the first amendment to the less speech-protective bad tendency test.

Pitney approved the Court's invalidation of the child labor laws; he dissented from the majority's approval of widening the authority of the Interstate Commerce Commission; and he dissented from Justice charles evans hughes's expansive reading of the commerce clause in the "Shreveport Case," Houston, East and West Texas Railway Company v. United States (1914). In short, Pitney's judicial career faithfully reflected the conservative reaction to much of the political and legal thrust of the Progressive movement.

Stanley I. Kutler


Levitan, David M. 1954 Mahlon Pitney—Labor Judge. Virginia Law Review 40:733–770.