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Wednesday, April 23, 2014

Review: Bond on Justice McReynolds

I recently read James E. Bond's book, I Dissent: The Legacy of Chief Justice James Clark McReynolds. I am not exactly sure what drove me to read Justice McReynolds' biography -- from what I knew of the justice, he was bad-tempered, prejudiced, and not a very noteworthy legal mind. A Google search for "worst supreme court justice" leads to the Wikipedia page on McReynolds. Business Insider also labels McReynolds as the worst justice ever, emphasizing his antisemitism.

I guess that I wanted to learn more about McReynolds in order to get an idea of just how bad a Supreme Court Justice can be. To other readers with this goal -- I do not recommend Bond's book. While Bond presents some of the negative history of the Justice, the book overall paints an almost glowing picture of the man. For those readers seeking to obtain knowledge about one of the lesser-known Justices, Bond's book may be useful -- the book gives a pretty decent account of McReynolds life and career before his time on the Court, and gives a helpful survey of some of McReynolds' better-known opinions.

McReynolds: Was He Really That Bad?

As I mentioned, Bond presents McReynolds in a very charitable light. Many of the opinions that McReynolds wrote are presented with sympathy for McReynolds' views, and an assumption that his opinions on the constitutionality of legislation were correct.

For instance, in discussing Nebbia v. New York, a case where the majority of the Court held that New York could regulate the price of milk as set by milk sold by dairy farmers and retailers, Bond writes about McReynolds' dissent where he argued that the public interest did not justify the regulation. While Nebbia is hailed as one of several cases that brought the Court out of its interventionist, Lochner era, Bond admires McReynolds' dissent, noting that "Indeed, the Constitution did not permit" New York's regulation, and characterizing the dissent as "stirring" and "fascinating." (87-88).

I previously mentioned that McReynolds was an antisemitic racist. But perhaps if somebody is generous enough, they can buy their way out of this designation:

McReynolds was on occasion intolerant, cantankerous, and rude. He discriminated against blacks, patronized women, and disliked Jews. He confused dignity with pompousness and character with manners, and he practiced customs that had long since passed from the quaint to the obsolete. But he was usually compassionate and generous. Although McReynolds lived comfortably and traveled widely, he gave much of what h earned to those in need; and in the end, he gave virtually all he had accumulated to charity. . . . His friends invariably described him with words such as "staunch," "stout," and "loyal." He gladly sacrificed his own comfort for a friend, as when he passed up a rare opportunity to preside over the Court in Hughes' absence in order to visit a sick uncle in Tennessee. 
The simple fact is that McReynolds reacted to his world emotionally rather than intellectually. For him, as for many Southerners of the period, personal relations were "all." He entertained the deepest affections and the bitterest hatreds. (135-136) (footnotes omitted)
One may be a bitter, irritable, antisemitic, racist, but it apparently isn't so bad so long as one donates a lot of money, has a few references, and visits family members instead of being present for oral arguments (skipping out on arguments was another one of McReynolds' infamous habits).

McReynolds: "Scrooge"

Bond's picture of McReynolds isn't entirely rosy -- he goes into detail about McReynolds' racism and antisemitism, particularly his prejudiced feelings towards his fellow justices:

McReynolds thought Brandeis "utterly unfit" and accused him of boring from within." He reportedly implored President Hoover not to appoint Cardozo, whom he thought even less fit than Brandeis ("if that is possible," he added reflexively). When told that the President had ignored his advice and nominated Cardozo, McReynolds fumed: "Apparently one need only be a Jew and the son of a criminal to be appointed to this Court." When Cardozo was sworn in, McReynolds appeared to be reading papers. Sometimes he refused to be seen with his Jewish brethren at all, as when he wrote Taft that he would not accompany the Court on a ceremonial visit to Philadelphia because "I am not always to be found when a Hebrew is abroad." (54).

Bond also discusses how McReynolds was not known for crafting well-reasoned opinions. He notes that: 

McReynolds' opinions ran short because . . . he cited little supporting authority and did not discuss the authority he did cite. . . . Very early, he made clear his attitude toward statistics and other kinds of "expert" secondary authroity when he dismissed such material as "interesting, but irrelevant." Uninfluenced by "facts" and unswayed by what "authorities" thought, McReynolds relied on his own distinctive judgment. (58).

McReynolds' opinions also tended to be oddly-structured, as the Justice tended to make points without organizing them around a central argument. Perhaps this is because McReynolds did not put the necessary effort into crafting effective opinions?

In Hopkins [v. Hebard], for example, he incorporated a lengthy quotation from the opinion of the Court of Appeals. Indeed, the quoted passage provided what little rationale can be found in McReynolds' opinion for the Supreme Court decision. So extensive is his use of quotation in many of his opinions that he often appears to have constructed his opinions with scissors and paste. (61).

Bond doesn't think that this reflects laziness on McReynolds' part. Far from it:

Although his method of constructing an opinion may have reflected laziness, as one of his former law clerks contended, it more likely reflected his belief that the facts, issues, and contentions could most accurately be understood by exact quotation, as another observer has suggested. (61) (footnotes omitted)

Notable McReynolds Trivia

Bond does highlight some interesting facts about Justice McReynolds. One of the more notable and ironic facts that Bond points out is that President Roosevelt's 1937 "court-packing" plan seemed to have originated from McReynolds' own research. Under this plan, Roosevelt would react to an uncooperative court by appointing more justices until those who opposed the New Deal were a minority. While Roosevelt never put this plan into practice, it drew wide attention from the public and the Justices at the time, and put even more pressure on those Justices who continued to resist Roosevelt's policies.

As for the plan's origins:

In casting about for a means by which to reconstruct the Court, Attorney General Cummings discovered a proposal which Attorney General McReynolds had made in 1914. In his annual report that year McReynolds had recommended that if any federal judge other than a Justice of the Supreme Court failed to retire at the age provided by law, the President should appoint another judge to preside over the court. "This will insure at all times the presence of a judge sufficiently active to discharge promptly and adequately all duties of the court." Although McReynolds had specifically exempted the Supreme Court from his proposal, the President thought he had found a solution, no less attractive because it would permit him to hoist his judicial nemesis by his own petard. "The answer to a maiden's prayer!" the President exclaimed when Cummings told him about McReynolds' long forgotten proposal. (101) (footnotes omitted)
Bond also goes into detail about McReynolds' trust-busting years with the Attorney General's office and his jurisprudence that while regulations over businesses should be generally avoided, there are certain business practices and tactics that should rightfully be outlawed and vigorously enforced against. This adds some nuance to popular views of McReynolds as having an "anything goes" position when it comes to business -- though in the context of McReynolds' overall jurisprudence the nuance is still minimal.


If I judged a book by its cover, I would not have read Bond's biography of Justice McReynolds, since (contrary to the title of the book) McReynolds was never the Chief Justice. Bond seems to have realized this, listing an alternate version of the books title in his online bibliography. But looking past the cover and Bond's overenthusiasm for McReynolds, I learned some interesting things, and increased my knowledge of outrageous things McReynolds said or did.

That said, Bond's book admires Justice McReynolds so much that it comes across as almost naive, and is badly organized at points -- Bond has a habit of telling you about one part of McReynolds life in a page or so of broad summary, and then gets into the individual points, but does not warn you that this is what he is doing, leading some of the chapters to come across as repetitive and choppy.

I would recommend that anybody interested in learning more about Justice McReynolds wait for Gerard Magliocca's forthcoming book on the Four Horsemen. Magliocca promises to explore the "crazy" stories surrounding the Justice, and also may investigate some of McReynolds' more interesting jurisprudence, including his surprisingly modern take on criminalizing drug use.

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