Erik Visits an American Grave, Part 1,704

This is the grave of Willis Van Devanter.

Born in 1859 in Marion, Indiana into a Dutch family, Van Devanter was a Dutch Calvinist his whole life. Oh boy was he, at least in spirit if not in daily religious practice. He went to the ancestor of today’s DePauw University, which is a Methodist school, but he still imbibed that kind of hard core Dutch Calvinism of the Dutch Reformed. He went to law school at the University of Cincinnati, graduating in 1881. He then moved to Wyoming Territory, a place for a young Republican to make a name for himself. After all, since this was still the territorial era and governance in the territories depended on who was in Washington, well, most of the time that was Republicans. Many a future powerful Republican of this era got their start this way.

Van Devanter was elected to the Wyoming territorial legislature in 1888 and was also the chief counsel to the Wyoming Stock Growers Association in the Johnson County War, that violence between big and small cattle operators that determined who would really control the West (hint: big corporate interests). Van Devanter was the man of those corporate interests, many of which were in fact backed by eastern capital. This was the era of Theodore Roosevelt playing cowboy in Dakota Territory after all. At the same time, he was Chief Justice of the Wyoming Supreme Court upon statehood in 1889. No conflict of interest there! He also represented the state in Ward v. Race Horse, one of the many Supreme Court cases that justified genocide. In this case, the state had passed a hunting season law and used it to arrest Native people who were of course just doing what they had done for thousands of years and had no knowledge of the law anyway. The district court ruled that this was a violation of treaty rights. The Supreme Court decided that treaties didn’t count when they weren’t good for white interests and overruled the district court. This was in 1896. We focus on the horrors of Plessy v. Ferguson to discuss that Court but understand that the Court made all sorts of racist decisions against every racial minority at this time–Native Americans, Hispanos in New Mexico, Chinese, Black. And almost all of these justices were named by Republican presidents, the supposedly pro-civil rights party. Well, it sure wasn’t going to be that way anymore! Van Devanter really liked this kind of justice and thought he could be that way someday.

In 1897, the McKinley administration, i.e., Mark Hanna, came calling for Van Devanter to be an assistant attorney general and placed in the Department of Interior. This was perfect–DOI handled the public lands, including natural resources and Bureau of Indian Affairs–and Hanna placed the most pro-corporate hacks possible in key positions to ensure peak Gilded Age monopoly dominance. He also taught at the George Washington University Law School in these years. In 1903, Theodore Roosevelt created a new Circuit Court of Appeals, the 8th. Hey Democrats today–do this! So he named Van Devanter a justice on it and was confirmed two weeks after his nomination. Seven years later, in 1910, William Howard Taft promoted Van Devanter to the Supreme Court. Again, it was peak Gilded Age.

Van Devanter is one of the worst justices in the history of that terrible body, which frankly should be dismantled. He was the ultimate in corporate hacks and that would never change. He hated anything that threatened the domination of rich white men over the rest of the society–unions, consumer regulations, Native Americans, other minorities, Jews. At least he would speak to his Jewish colleagues on the Court, unlike the even more revolting James Reynolds who refused to acknowledge that Louis Brandeis, Benjamin Cardozo, or Felix Frankfurter existed, despite having to sit with them and decide cases. He was a terrible opinion writer and so they just mostly stopped giving him many to write. He wrote fewer per year than almost any other justice in these years. He was lazy. He was a bigot. He hated all the changes in American society. And so like Sam Alito today, he was determined to do everything possible to stop those changes from happening, so long as he didn’t have to do any real work like write opinions.

And when Van Devanter did write an opinion, it tended to be very special. One classic case was U.S. v. Sandoval, the 1913 case that revolved around whether the federal government had the right to restrict alcohol sales on reservations, specifically Santa Clara Pueblo in New Mexico. Van Devanter wrote for a unanimous majority, writing that Indians were “intellectually and morally inferior” and thus needed the hand of the federal government to guide them. I mean, this isn’t surprising for 1913, it was unanimous after all. But he just went to naked racism and white supremacy. Nothing about this would be unexpected from the guy who argued Ward v. Race Horse.

Other than being a terrible human voting against justice on every issue in the country, Van Devanter’s biggest contribution to the Court was to be one of the justices that created the so-called Judges Bill that regulated how the federal Courts largely work today, how a circuit court would choose whether to review a case, etc. This was a big thing in the Taft Court in the 1920s.

Then the Great Depression happened and Franklin Delano Roosevelt became president. Van Devanter hated FDR and everything he stood. As 12 years of Republicans had led to an almost completely right-wing Court by this time, he, McReynolds, and other saw themselves as the bastion of sanity keeping the nation from doing crazy things like having a minimum wage or ending child labor. He was one of the five justices to overrule just about everything from the New Deal, leading to Roosevelt’s court-packing idea.

Now, if Congress weren’t filled by cheap bastards, we might well have been rid of Van Devanter before this. He was old and wanted to retire. But in 1932, Congress decided to cut Supreme Court justice pensions in half. One can see why–there could up to 5 or maybe even 10 people making more money this way, what an important federal expenditure. So he decided to stay on. After Owen Roberts decided to start accepting that America had to change and began to tentatively vote with the liberals, Van Devanter was just done with it. He wasn’t going to work, or in his case, “work,” if he couldn’t even stop such horrors as the National Labor Relations Act. So he stepped down in 1937. 26 years of being terrible was enough. Hugo Black replaced him on the Court.

Van Devanter mostly lived in Washington after his retirement, though he had a hunting property in Canada where he spent time as well. He died in 1941, at the age of 81.

Willis Van Devanter is buried in Rock Creek Cemetery, Washington, D.C.

If you would like this series to visit other Supreme Court justices of this terrible era, you can donate to cover the required expenses here. Joseph McKenna is also in DC, but a cemetery I’ve never visited, and Horace Lurton is in Clarksville, Tennessee. Previous posts in this series are archived here and here.