Journal of Supreme Court History

T h e S ile n t M a n : F ro m Lochner to Hammer v. Dagenhart, A R e e v a lu a tio n o f W illia m R . D a y J u s tic e MLKJIHGFEDCBA JE SSE B A IR rqponmlkjihgfedcb Le gal acade m ics have writte n little abo u tJu s ticeWilliam R. Day . In fact, the o nly fo rm albio grap hy abo u t him was p u blis he d in 1946,' twenty-three years before the Library of Congress arranged and described his papers.2 As a result, that biography almost exclusively relied on the text of Day’s opinions.3 In doing so, it broadly concluded that Day strictly con­ strued national powers and liberally con­ strued state powers.4 Yet it is not easy to classify Justice Day’s jurisprudence. In the early twentieth century, descriptions of his philosophical tendencies spanned the ideological gamut. On the one hand, some publications referred to Day as a “progressive mind”5 who, along with Justices Oliver Wendell Holmes, Jr., and Charles Evans Hughes, sought to eliminate the laissez-faire philosophy of the Supreme Court and its Fourteenth Amendment liberty-of-contract decisions.6 On the other hand, some chastised Day as being “reactionary”7 and an “old-fashioned law and precedent jurist.”8 More recent attempts to describe Day’s judicial philoso­ phy have proven equally unsatisfying.9 Justice Day served on the Supreme Court between 1903 and 1922, during the period of time commonly referred to as the YXWVUTSRQPONM Lochner Era, and his positions on key cases bear further examination.10 Lochner v. New York'1 and H am m er v. D agenhart are two cases often associated with the perceived judicial activism of that time period.12 In Lochner, the Court struck down a New York state statute regulating maximum hours for bakers.13 In H am m er, the Court invalidated a congressional enactment that prohibited the interstate shipment of goods W IL L IA M R U F U S D A Y : A R E E V A L U A T IO N 3 9 rqponmlkjihgf produced by child labor.14 Although both cases typify the popular belief that the YXWVUTSRQPONMLKJIHGFEDCBA Lochner Era Court struck down a multitude of economic regulations,15 Day did not join the majority in both cases. Rather, Day joined Justice John Marshall Harlan’s dissent in Lochner and thirteen years later wrote the majority opinion in H am m er. This article aims to answer the question of why Justice Day made this switch, by examining his jurisprudence, belief in federalism, politics, personality, and other factors. D a y ’s R e lu c ta n c e to D is s e n t Day’s reluctance to dissent is an impor­ tant factor in explaining his switch. To say that he dissented infrequently would be an understatement. Day penned only eighteen dissents during his nineteen-year tenure on the Supreme Court.16 Harold Laski, a longtime acquaintance of Justice Holmes, took note of this trend when he stated that he “did not think it possible for Day[] to be in the minority on any ground.”17 Part of Day’s reluctance to dissent likely stemmed from the J u s tic e W illia m R . D a y , w h o a lm o s t n e v e r d is s e n te d , jo in e d J u s tic e J o h n M a rs h a ll H a r la n ’s 1 9 0 5 d is s e n t in Lochner s u p p o rtin g a N e w Y o rk s ta tu te re g u la tin g m a x im u m h o u rs fo r b a k e rs . 4 0 J O U R N A L O F S U P R E M E C O U R T H IS T O R Y rqponmlkjihgfedcbaZYXWVUTSRQ prevailing legal culture of...