Erik Visits an American Grave, Part 1,523

This is the grave of Edward Douglas White.

Born in 1845 on his family’s sugar plantation outside of Thibodaux, Louisiana, White grew up in the slaveowning elite and that was his life. The family was super loaded and owned dozens of humans at any one time. His mother was related to Robert E. Lee. However, his father died in 1847. But his remarried a prosperous merchant and they lived in New Orleans, keeping the plantations of course. The family was Catholic, as was much of the Louisiana elite. So White ended up at Georgetown in 1858, even though he was only 13 years old. Georgetown was definitely the best Catholic university in the United States at that time and it has a good argument for that today.

Interestingly, it is unclear whether White personally committed treason in defense of slavery. He supported it, without question. But while there were claims of him in the Confederate army, there’s no actually documentary evidence of it until just before the end of the war, in 1865, when he was a lieutenant in Louisiana and was captured. Probably he managed to avoid actually fighting for his beliefs until just before the very end. And yet, he claimed significant service for the rest of his life and later, when he was famous, this was central to his identity. He also may or may not have been in the Ku Klux Klan after the war. There’s not much evidence of this either, but he claimed it, including while talking to D.W. Griffith as Birth of a Nation was coming out.

Anyway, the guy was a real piece of work. White of course lost all his human property at the end of the war, so he actually had to work for a living. He became a lawyer. He went to what is today Tulane Law and then started practicing. But he had serious political ambitions too and the early 1870s was a good time for this, as whites were going to take back the government using maximum violence, which White absolutely supported. 1873 was the year of the Colfax Massacre, when whites in that Louisiana town massacred Blacks who were fighting for their political rights. The Grant administration, today massively overrated on civil rights, refused to do anything about it despite upwards of 150 Black men murdered. This gave men like White the space to take back the state. White entered the state Senate in 1874, then went up to the state Supreme Court in 1878. He was the campaign manager for Francis Nicholls’ notorious 1888 governor campaign, which used almost unprecedented levels of racial violence to destroy Black voting in the state. He was then repaid by being sent to the Senate in 1891.

White didn’t have too long in the Senate though. The Supreme Court justices named by Rutherford Hayes and Chester Arthur were bad enough, but then Grover Cleveland won the White House and Democrats wanted some good Confederates on the Court. So in 1894, he named White to the Court. Interestingly, Cleveland’s first two nominees were rejected by the Senate, both because they were on the wrong side of Tammany Hall in New York that led the state’s Democratic senators to lead the fight against them. Cleveland finally gave up on naming his New York buddies to the Court and went for the white supremacist Confederate, which every Democrat could support.

This put White on the court just in time to rule in Plessy v. Ferguson for segregation in his home state, along with the dozens of other atrocity cases of the Fuller Court. That included U.S. v. E.C. Knight Co. that ruled against the government’s power to pursue antitrust actions under the Sherman Anti-Trust Act. Once again, in that awful court, just like in Plessy, the other former slaveholder, John Marshall Harlan, was the only one to dissent. And then of course, White joined with the entire court in Loewe v,. Lawlor that subjected unions to the Sherman Act, even though it was not written with them in mind. It should almost go without saying that White heartily joined in the Court case throwing Eugene Debs in prison after the Pullman strike.

But at least White dissented in Lochner, so he’s not the worst justice on that horrible Court. He also joined the majority in U.S. v. Wong Kim Ark that decided for birthright citizenship, the bane of the racist anti-immigrant right today. He dissented in Northern Securities v U.S., supporting the right of the monopolies to control the economy.

In 1910, Melville Fuller died. William Howard Taft could have named a new justice to the position of Chief Justice. But instead, he named White, even though they were members of different political parties. Now, by 1910, Republicans didn’t care about civil rights at all anymore. That had really started with the massively overrated Theodore Roosevelt (yes, he had dinner with Booker T. Washington, but he also regretted that decision and had a horrific civil rights record otherwise). So it’s not like White’s white supremacy mattered to Taft. White had also developed a slightly more accepting view of federal power than many leading southerners, which led to Taft’s comfort with him.

White continued his mixed bag ways as Chief Justice. He pushed hard on Hammer v. Dagenhart to throw out laws that would ban child labor. Amazingly, White wrote 155 different dissents on cases around income taxes, which he believed in. In fact, in Pollock. v. Farmers Loan & Trust, he went hard after Fuller’s ruling that threw out the income tax in the Wilson-Gorham Tariff Act, writing:

It is, I submit, greatly to be deplored that after more than 100 years of our national existence, after the government has withstood the strain of foreign wars and the dread ordeal of civil strife, and its people have become united and powerful, this court should consider itself compelled to go back to a long repudiated and rejected theory of the constitution, by which the government is deprived of an inherent attribute of its being—a necessary power of taxation.

Fair enough! Of course, John Roberts has used Fuller’s opinion in Pollock his decisions in the present, even though the American people then mandated the income tax through the 16th Amendment.

Surprisingly and somewhat to his credit, he wrote for the unanimous Court in Guinn v. U.S. that threw out the grandfather clause in the South. That was so egregious that it was embarrassing, which is really why it was thrown out. It’s not like it wasn’t easy enough to stop Black people in voting in more subtle ways such as poll taxes that White wouldn’t care about. He had already joined the majority in Williams v. Mississippi back in 1898 that upheld the poll tax. And when civil rights leaders tried to get the Fuller court to apply its freedom of contract doctrine in Berea College v. Kentucky, the majority, including White, were like, oh no way, our principled committed to the contract certainly doesn’t apply to race! So White basically sucked on race his whole career, even for the time, outside of just a couple of cases.

White also wrote the decision in the Selective Draft Law Cases in 1918 that upheld the draft. So there’s that I guess. Taft liked that decision too.

White stayed on the Court until the day he died. That was in 1921, when he died of a heart attack at the age of 75. Taft replaced him as Chief Justice.

Edward Douglas White is buried in Oak Hill Cemetery, Washington, D.C.

If you would like this series to visit other justices who worked with White, and what a bunch of wonderful characters they are, you can donate to cover the required expenses here. David Brewer is in Lansing, Kansas and Rufus Peckham is in Menands, New York. Previous posts in this series are archived here and here.