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Van Devanter, Willis (1859–1941)


Colleagues and contemporary observers agreed that Willis Van Devanter was enormously influential during his twenty-six years on the Supreme Court. Chief Justice william howard taft, who as President appointed him in 1911, described his Wyoming associate as "my mainstay," "the most valuable man in our court," and the Justice who had "more influence" than any other. Justice louis d. brandeis, Van Devanter's ideological antipode, praised him as a "master of formulas that decided cases without creating precedents." Harvard's Professor felix frankfurter aptly dubbed him Taft's "Lord Chancellor."

Van Devanter's backstage prominence contrasted vividly with his well-known "pen paralysis." He rarely spoke for the Court in major constitutional cases. During his tenure, Van Devanter averaged only fourteen written opinions each year; during the 1930s he averaged only three a year.

Van Devanter came to the Court after a career in Wyoming law and politics, followed by five years in the Interior Department. President theodore roosevelt appointed him to the Eighth Circuit Court of Appeals in 1903; eight years later, President Taft elevated him to the Supreme Court. Taft, himself a former circuit judge, prized judicial experience as a criterion for appointment to the Supreme Court.

Although Van Devanter was one of the conservative "Four Horsemen" of the new deal era, two of his earlier opinions aligned him with the "liberal nationalistic" wing of the Court. In the second of the employers ' liability cases (1913) he upheld a federal statute holding railroads liable for injuries suffered by workers engaged in interstate commerce. He boldly generalized about the sweep of the commerce clause, describing the commerce power as "complete in itself," but he added that it did not extend to matters that had no "real or substantial relation to some part of such commerce." The previous year, in Southern Railway Co. v. United States (1911), he had written for the Court to sustain federal railroad safety legislation in a case involving an intrastate railroad which carried goods that had passed through interstate commerce. Again, Van Devanter found the commerce power plenary and operative if an intrastate matter affected interstate commerce. The decision anticipated Justice charles evans hughes's consideration of intrastate effects on the commerce power in the Shreveport Case (Houston, East and West Texas Railroad Company v. United States, 1914), an opinion Van Devanter supported; yet, in the 1930s he consistently rejected similar arguments to expand the scope of federal economic regulation.

Van Devanter's most important and enduring contribution to constitutional law came with his opinion broadly approving Congress's investigative powers. In McGrain v. Daugherty (1927) the plaintiffs had challenged a Senate committee's investigation of Harding administration scandals. Van Devanter recognized that historically "the power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function"; that the power might be abused, he added, was no argument against its existence.

Van Devanter usually supported governmental repression of political dissent in the world war i era. In the early 1930s, however, he deviated from his ideological allies as he joined the majority in invalidating a section of California's criminal anarchy law in stromberg v. california (1931). He also supported Justice george h. sutherland's pathbreaking opinion on Sixth Amendment rights in powell v. alabama (1932). But a few years later, when the Court reverted to the clear and present danger doctrine for first amendment cases, Van Devanter led the "Four Horsemen" in dissent. In herndon v. lowry (1937), which involved a black communist who had been convicted under Georgia state law, Van Devanter thought that Herndon's appeal to blacks was especially dangerous; Van Devanter's dissent reflected the suppressive bad tendency test and racist rhetoric, as well.

During the constitutional struggles over the New Deal, Van Devanter opposed the administration in every case except ashwander v. tennessee valley authority (1936). Even when his conservative colleagues resurrected the restrictive doctrines of united states v. e. c. knight company

(1895), a decision which he had circumvented in some of his early opinions, Van Devanter steadfastly opposed the expansion of national regulatory power. But he never spoke for that viewpoint, either in the majority or in dissent. Fittingly, however, he played a key role in what may have been franklin d. roosevelt ' s most significant political defeat. During the consideration of Roosevelt's court-packing proposal in April 1937, Van Devanter announced his intention to take advantage of a new law allowing Justices to retire at full pay. The impending vacancy offered promise of a shift in the Court's ideological stance, and made the President's plan unnecessary for many administrative supporters. After his retirement from the Supreme Court, Van Devanter apparently was the first retired Justice who served regularly as a reserve judge.

Stanley I. Kutler


Paschal, Joel F. 1951 Mr. Justice Sutherland: A Man Against the State. Princeton, N.J.: Princeton University Press.

Pringle, Henry F. 1939 The Life and Times of William Howard Taft. New York: Farrar & Rinehart.

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