Willis Van Devanter: The Person

Abstract

Willis Van Devanter: The Person MARK TUSHNET Introduction Willis Van Devanter is best known as one of the Four Horsemen who found important components of Franklin D. Roosevelt’s New Deal programs unconstitutional, not for any opinions he wrote, like his most important one, in McGrain v. Daugherty (1927), a case arising out of the Teapot Dome scandal of the 1920s, in which the Court upheld a broad scope for congressional oversight inquiries.1 Indeed, to the extent that he is known for anything else, it is that he wrote an extraordinarily small number of opinions— 346 majority opinions in his twenty-six years on the Supreme Court, a rate of just over thirteen per term, far fewer than that of any of his colleagues, such as ChiefJustice William H. Taft’s “astonishing” 249 opinions, Louis D. Brandeis’ 193, and James C. McReynolds’ 172.2 His low productivity is attributed to “pen paralysis”3 or a “writing block,”4 which, as I argue below, is a somewhat inaccurate characterization of the difficulty. Not surpris­ ingly, then, one of the few discussions of Van Devanter’s work on the Court comes in a chapter in a book, Unknown Justices of the United States Supreme Court, which by its own description “profilefs] some of the more obscure” justices? No one could plausibly contend that Van Devanter deserves a full biography or even an article length one.6 There are aspects of his life, though, that I believe are of some interest, and a few are sketched here. After a brief overview of Van Devanter’s pre-Court career and his appointment to the Court, Van Devanter’s role on the Supreme Court is examined, with an explanation offered for his low productivity that supplements, though it does not completely displace, the “writing block” narrative. Material on Van Devanter’s personal life then sheds further light on his role on the Court, including his decision to retire in 1937. Van Devanter before the Supreme Court Willis Van Devanter was born in Indiana in April 1859; his mother, Violetta, lived there until her death in 1933 in her nineties.7 After attending public school, Van Devanter went to Indiana Asbury University, founded in 1837 as a Methodist college (and renamed DePaul University in 1994), but he did not graduate because his father, Isaac, became WILLIS VAN DEVANTER 309 ill and could no longer support him. After his father recovered, Van Devanter went to the Cincinnati Law School, from which he graduated in 1879. Two years later he married Delice “Dollie” Burhans. Van Devanter’s father had a law prac­ tice in Cincinnati with John W. Lacey, and young Willis joined the firm. Lacey, who had married his partner’s daughter Elizabeth, Van Devanter’s sister, whom Van Devanter addressed as “Lizzie” in his letters to her, Lacey left the firm in 1884 when Isaac retired, to accept appointment by President Chester Arthur as chief justice of the Wyoming Territorial Court.8 Van Devanter decided to go with Lacey and his sister to Wyoming. Van Devanter joined a prominent Re­ publican lawyer Charles N. Potter for several years in a business-oriented practice that dealt with disputes over land title and had the Burlington Railroad as a client.9 Van De­ vanter also became active in the Republican Party, winning an election as city attorney in 1887 and a seat in the territorial legis­ lature the next year. A year later, President Benjamin Harrison appointed Van Devanter chief justice of the territorial court, but— like Lacey before him—Van Devanter served only briefly, returning to law practice in 1890 in a renewed partnership with Lacey. This time the Union Pacific Railroad was a main client, in addition to “the Wyoming Stockgrowers and most of the powerful and sizable stock ranches in the state.”10 Van Devanter became the principal lawyer for the Department of the Interior after William McKinley’s election in 1896, and he specialized in land claims and Indian law. Seven years later, Theodore Roosevelt nominated him to a seat on the United States Court of Appeals for the Eighth Circuit, then sitting in St. Paul, Minnesota, which covered a wide swath ofthe...