John Hessin Clarke

(b. New Lisbon, Oh., 18 Sep. 1857; d. San Diego, Ca., 22 Mar. 1945; interred Lisbon Cemetery, Lisbon, Oh.), associate justice, 1916–1922. John Hessin Clarke was the only son of John and Melissa Hessin Clarke, both Irish Protestants. After attending local schools and graduating from Western Reserve College in 1877, Clarke studied law with his father, passed the Ohio bar examinations with honors, and began to practice law in his hometown in 1878. Clarke soon moved to Youngstown, where he gained renown as a trial lawyer and as part owner of the Youngstown Vindicator. He never married. He moved to Cleveland in 1897 and became counsel to railroads and other corporate clients. Clarke joined the reformers around Cleveland Mayor Tom L. Johnson but clashed with Johnson about taxes on railroad property and other reforms affecting his clients.

By 1903, Clarke had become a mainstream Democratic progressive and twice unsuccessfully sought a U.S. Senate seat from Ohio. He advocated direct election of senators, home rule for cities, municipal ownership of railways, and disclosure of campaign expenditures. In 1914, Clarke received the endorsement of reform Democrats for a third Senate campaign but instead accepted Woodrow Wilson's appointment as a federal district judge in the Northern District of Ohio. Clarke's friend Newton D. Baker in July 1916 helped convince Wilson to appoint Clarke to the Court when Charles Evans Hughes resigned to run for president.

Former president William Howard Taft joined conservative newspapers in attacking the appointments of Louis D. Brandeis and Clarke in 1916, claiming the pair represented a new school of constitutional construction that threatened the nation's legal fabric. When Taft joined Brandeis and Clarke as chief justice in 1921, however, their relationships were quite cordial. Yet James McReynolds, whose animosity toward Brandeis is well known, was so nasty to Clarke that his attitude helped prompt Clarke's resignation. McReynolds refused to sign the official letter expressing regret at Clarke's departure.

During his time on the Court, Clarke voted consistently as a Wilson Progressive and usually sided with Brandeis. Yet Clarke went further than Brandeis in supporting legislative power. Clarke wrote the majority opinion in Abrams v. United States (1919), upholding the conviction and lengthy prison sentences of six agitators under the Espionage Act of 1918. His dissents in Hammer v. Dagenhart (1918) and Bailey v. Drexel Furniture Co. (1922) affirmed respectively that congressional power was broad enough to reach child labor through either the Commerce Clause or the taxing power. Clarke's respect for legislative enactments extended to the states' police power and to vigorous federal antitrust enforcement.

Clarke is remembered primarily for his resignation from the Court. (See Resignation and Retirement.) He had served for five terms and was in good physical health at the age of sixty‐five when he announced in 1922 that he had decided to devote himself to seeking America's entry into the League of Nations. As with Arthur Goldberg's decision to resign in 1965, Clarke found that his quest for world peace only led to his own relative obscurity. By 1927, Clarke realized that the United States would not enter the League of Nations, and he retired from public life, although he reemerged briefly to back Franklin D. Roosevelt's court‐packing scheme in 1937.

Bibliography

• David M. Levitan, The Jurisprudence of Mr. Justice Clarke, Miami Law Quarterly 7 (December 1952): 44–72

— Aviam Soifer

After a career as a successful corporate lawyer, civic reformer, and federal judge in Ohio, John Hessin Clarke was appointed by Woodrow Wilson to the Supreme Court in 1916. He served only a short time on the Court, however, stepping down in 1922 to work for U.S. entry into the League ofNations—becoming one of the few justices to leave office while in reasonably good health. During his brief tenure Clarke earned the respect of his fellow justices and became known for his liberal positions on many issues. A Progressive Era Democrat, he joined with Justice Louis D.Brandeis on many votes. He also wrote the Court's opinion in Abrams v. United States, 250 U.S. 616, 40 S. Ct. 17, 63 L. Ed. 1173 (1919), in which the Court upheld the conviction of several radicals accused of fomenting unrest and in the process helped define the Court's position on free speech issues for decades to come.

Clarke was born in Lisbon, Ohio, on September 18, 1857. His father, John Clarke, Sr., was an Irish Protestant who immigrated to Lisbon in 1830 and became a successful lawyer and judge. Clarke attended Western Reserve College in Hudson, Ohio, graduating Phi Beta Kappa in 1877 and receiving a master of arts degree in 1880. After college Clarke returned to Lisbon to study law under his father's tutelage. He passed the bar with honors in 1878 and practiced briefly in his father's firm. At age twenty-three he moved to the nearby city of Youngstown and opened his own corporate law firm. He soon gained a reputation as an excellent lawyer and developed an impressive list of clients. Clarke also became an active citizen of Youngstown. He bought an interest in the local Democratic newspaper, the Vindicator, and used it to promote progressive political reform including national civil service reform and free public libraries. He was an active participant and speaker in a local literary society. Clarke did not marry.

In 1897, after spending seventeen years in Youngstown, Clarke moved to Cleveland, where he joined the firm of Williamson and Cushing. His clients there included the Erie Railroad, the Nickel Plate Railroad, and the Pullman Company, maker of railcars. In Cleveland, Clarke continued to advocate progressive political reform, sometimes conflicting with the interests of his clients. He became part of the circle of Tom L. Johnson, Cleveland's Democratic mayor (from 1901 to 1909) and a leader in political reform. Among other things, Clarke pushed for limits on railroad fares and profits. He also sought to impose antitrust laws on the rail industry. In 1896 Clarke opposed the populist policies of fellow Democrat William Jennings Bryan, who ran for president that year. Unlike Bryan, Clarke supported the gold standard, a policy that fixed the value of the dollar in terms of a specific amount of gold.

Clarke's name came up at times for political office, including that of governor and of congressional representative but he declined such invitations. In 1903, however, he finally ran for the U.S. Senate as a Democratic candidate. His platform advocated radical reform, including municipal ownership of street railways, equalization of taxes, direct election of senators, institution of workers' compensation, and disclosure of campaign finances. Clarke lost to the more conservative incumbent, Mark Hanna, a fellow native of Lisbon. He sought the Democratic nomination for the U.S. Senate again in 1914 but withdrew when a popular politician, Thomas Hogan, entered the race. Clarke later supported progressive reforms including women's voting rights.

At age fifty-six the silver-haired Clarke began a judicial career when President Wilson appointed him to become a federal judge in the Northern District of Ohio. Only two years later, on July 14, 1916, Wilson summoned him again, this time to be a nominee for the U.S. Supreme Court. Wilson hoped that Clarke would join with Justice Brandeis—who had been confirmed shortly before Clarke's nomination—in moderating the conservative slant of the Court. Taking the place of Charles E. Hughes who had stepped down to run for president, Clarke met Wilson's expectations. He took a liberal stance on most issues, becoming, for example, a strong advocate of enforcing antitrust laws against business monopolies. He also made many decisions that were pro-labor.

Clarke had become wary of the potential of large corporations to eliminate competition and infringe on the rights of workers. One of his most important contributions to the history of the Court was in the area of antitrust law. He dissented in several decisions early in his term—including United States v. United States Steel Corp., 251 U.S. 417, 40 S. Ct. 293, 64 L. Ed. 343 (1920)—in which the Court found the defendants not guilty of violating antitrust laws. However, in United States v. Reading R.R., 253 U.S. 26, 40 S. Ct. 425, 64 L. Ed. 760 (1920), the Court majority joined him in his earlier dissenting position, dissolving a railroad holding company because it was, according to Clarke's opinion, "a menace to … interstate commerce within the meaning of the Anti-Trust Act." Then, in United States v. Lehigh Valley R.R., 254 U.S. 255, 41 S. Ct. 104, 65 L. Ed. 253 (1920), Clarke garnered unanimous support for his opinion, in which the Court opined that a railroad had bought up its competition in order to gain a monopoly on rail service. Lehigh Valley R.R. served as a model for antitrust decisions during the 1930s.

Clarke often sided with labor and he opposed efforts to use antitrust laws against unions. He upheld labor's right to strike in several cases and in Bunting v. Oregon, 243 U.S. 426, 37 S. Ct. 435, 61 L. Ed. 830 (1917), he voted to sustain Oregon's minimum wage law and its ten-hour workday limit.

Clarke's record on civil liberties was less uniformly liberal. Although he often voted with fellow justices Brandeis and Oliver Wendell Holmes, Jr., he differed with them in Abrams. At issue was the First Amendment's Free Speech Clause, which states, "Congress shall make no law … abridging the freedom of speech." The case involved Russian-born anarchists and socialists who had been accused of distributing leaflets calling for weapons workers to go on strike during World War I. In the Court's opinion, Clarke wrote, "the defendants plainly urged and advocated a resort to a general strike of workers in ammunition factories for the purpose of curtailing the production of ordnance and munitions necessary and essential to the prosecution of the war." Clarke said that the Sedition Act of 1918, 40 Stat. 553, allowed for the restriction of speech that intended to disrupt the conduct of the war, even if that intention had not led to such disruption. This interpretation of the First Amendment remained dominant for several decades. In his dissent, Holmes argued that Clarke and the majority had overblown the effect of "the surreptitious publishing of a silly leaflet by an unknown man." Clarke again opted for a conservative interpretation of the First Amendment in U.S. ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407, 41 S. Ct. 352, 65 L. Ed. 704 (1921). In that decision, Clarke upheld a Milwaukee postmaster's denial of mailing privileges to a socialist newspaper, claiming that a mailing permit was a privilege and not a right.

Clarke resigned from the Court in 1922 on his sixty-fifth birthday. He left in order to become an advocate for U.S. membership in the League of Nations. Among the reasons for his resignation, he told Brandeis, was his perception that many of the cases accepted by the Court were trivial in nature. Clarke was suffering from health problems, including loss of hearing and a heart condition, and he had been greatly affected by the death of two sisters. He also resented the hostility of the conservative justice James C. McReynolds. President Wilson wrote to Clarke of the resignation, "I am only sorry, deeply sorry. Like thousands of other liberals throughout the country, I have been counting on the influence of you and Justice Brandeis to restrain the Court in some measure from the extreme reactionary course which it seems inclined to follow." During his time on the Court, Clarke wrote 129 opinions and 23 dissents.

In the same year that he resigned Clarke became president of the League of Nations Non-Partisan Association of the United States, a position he held until 1928. After the carnage of World War I Clarke put great stock in the League of Nations' efforts "to devise some rational substitute for irrational war as a means of settling international disputes." Clarke worked hard as an advocate for the League of Nations, traveling around the country, making speeches and campaigning for the cause—and spending a good deal of his own personal fortune in the process. He also became an active trustee of the World Peace Foundation in 1923.

Plagued with respiratory problems in addition to his heart condition, Clarke retired to San Diego in 1930. He remained disappointed by the United States' persistent isolationism and its refusal to join the League of Nations.

In the 1930s Clarke made known his support for Franklin D. Roosevelt's New Deal legislation. In 1937 he made a radio address speaking in favor of Roosevelt's plan to add more justices to the Supreme Court. He was greatly saddened by the events of World War II and told a friend that he "began to gravely doubt the existence of a moral government on this seemingly abandoned planet." He died in 1945, shortly before the explosion of the atomic bomb on Hiroshima and the formal creation of the United Nations.

John Hessin Clarke
Associate Justice of the United States Supreme Court
In office October 9, 1916 – September 18, 1922
Nominated by	Woodrow Wilson
Preceded by	Charles Evans Hughes
Succeeded by	George Sutherland
Born	September 18, 1857(1857-09-18) New Lisbon, Ohio
Died	March 22, 1945 (aged 87) San Diego, California

John Hessin Clarke (September 18, 1857 – March 22, 1945) was an American lawyer and judge who served as an Associate Justice of the United States Supreme Court from 1916 to 1922. ^[1]

Contents 1 Early life 2 Progressive politician 3 Judicial career 3.1 Federal judge 3.2 Associate Justice 3.2.1 Resignation 4 Later years 4.1 Campaigning to join the League of Nations 4.2 Retirement 5 References 6 Bibliography

Early life

Born in New Lisbon, Ohio, Clarke was the third child and only son of John Clarke, a lawyer and judge, and his wife Melissa Hessin. He attended New Lisbon High School and Western Reserve College, from which he graduated Phi Beta Kappa in 1877.^[2] Clarke did not attend law school but studied the law under his father's direction and passed the bar exam cum laude in 1878.

After practicing law in New Lisbon for two years, Clarke moved to Youngstown, where he purchased a half-share in the Youngstown Vindicator. The Vindicator was a Democratic newspaper and Clarke, a reform-minded Bourbon Democrat, wrote several articles opposing the growing power of corporate monopolies and promoting such causes as civil-service reform. He also became involved in local party politics and civic causes. His efforts to prevent Calvin S. Brice's renomination as the party's candidate for the United States Senate in 1894 ended in failure, but he worked successfully to oppose the election of a Republican candidate for mayor of Youngstown who was a member of the American Protective Association. A "gold bug" in 1896, Clarke's opposition to William Jennings Bryan's nomination as the Democratic Party's presidential candidate was so great that he bolted the party and participated in the subsequent "Gold Bug" convention in Indianapolis that nominated Senator John M. Palmer later that year.

Progressive politician

Soon after the 1896 presidential election, Clarke moved to Cleveland, where he became a partner in the law firm of Williamson and Cushing. The firm represented corporate and railroad interests, and Clarke soon demonstrated his worth, replacing senior partner Samuel W. Williamson as the general counsel for the New York, Chicago and St. Louis Railroad. Yet Clarke continued his involvement in the Democratic Party. His politics evolved during this period, as Clarke abandoned many of the political views of his youth, including those involving states' rights, and embraced instead the program of the emerging progressive movement. Clarke's political evolution during this period was facilitated considerably by his friendship with Cleveland mayor Tom L. Johnson, who helped restore Clarke's standing within the state party after Clarke's previous failure to support Bryan's presidential bid.^[3]

In 1903, Johnson succeeded in taking control of the state Democratic Party, an effort which Clarke supported. At the party's convention that August, Clarke was nominated as the Democratic candidate for the United States Senate. Though an accomplished orator, Clarke's work as a railroad attorney, his opposition to Bryan's presidential candidacy seven years before, and his own personal limitations all contributed to his failure to upset his Republican rival, Mark Hanna, who won the balloting in the Ohio General Assembly by 115 votes to 25 for Clarke.

In the aftermath of his defeat, Clarke reduced his participation in party politics, focusing instead on his legal work for a time. Yet Clarke was soon back in the political arena, withdrawing from the partnership with Williamson and Cushing in 1907. His relationship with Johnson suffered after Clarke supported the successful candidacy of conservative Democrat Judson Harmon for governor in 1908; in response, when nominating a candidate for the United States Senate race in 1910 Johnson passed over Clarke in favor of Atlee Pomerene, the eventual winner. Clarke's support for the incorporation of progressive reforms into the Ohio Constitution in 1911, however, helped to restore his standing among Ohio progressives. Clarke attempted to parlay this into a second run for a United States Senate seat early in 1914, but he faced opposition in the primary from Ohio Attorney General Timothy S. Hogan and by the spring appeared to be in danger of losing the race.

Judicial career

Federal judge

Clarke was in the middle of his primary campaign when he was appointed by President Woodrow Wilson to fill a vacancy on the U.S. District Court for the Northern District of Ohio created by the resignation of William Louis Day. Clarke was the choice of both Woodrow Wilson and Attorney General James Clark McReynolds, who felt that the position required a "first rate appointment" to deal with the backlog in the court's docket, and that Clarke's high standing before the Ohio bar marked him out as a man of "decided ability".^[4] Wilson also wanted a candidate who could be groomed as a prospective Supreme Court nominee, given the relative dearth of Democratic prospects on the federal bench after sixteen years of Republican presidents.^[5]

Clarke soon vindicated their hopes in him, establishing himself as an effective judge. Though considered too formal and aloof by the attorneys before him, he cleaned up the backlogged docket and won their respect for his ability. His work was of the highest quality, with only five of the 662 suits tried before him reversed, and none of these for errors in the admission of evidence. Clarke himself enjoyed his time at the district level, finding his duties not too onerous and the variety of cases before him stimulating.^[6]

Associate Justice

In June 1916, a vacancy arose on the Supreme Court when Associate Justice Charles Evans Hughes resigned to accept the Republican nomination for President. Wilson wanted to fill the seat by appointing his Attorney General, Thomas W. Gregory, but Gregory demurred and suggested Clarke instead.^[7] After having Newton Baker (Wilson's Secretary of War and a close friend of Clarke's) speak with Clarke to confirm his opposition to trusts,^[8] Wilson offered Clarke the nomination. Though Clarke was reluctant to abandon trial for appellate work, he felt he could not pass on such an honor and accepted. Wilson sent his name to the Senate on July 14 and Clarke was confirmed unanimously ten days later.

Clarke's years on the court were unhappy ones. Having enjoyed the autonomy of a trial court judge, he chafed at the routine of the Supreme Court, hating the arguments, the extended conferences, and the need to accommodate other justices's views when writing opinions. While he enjoyed good relations with the other justices (and developed close friendships with William R. Day and Willis Van Devanter), he had an unpleasant relationship with Justice James Clark McReynolds, one that subsequently contributed to his decision to leave the Court.^[9] Such was McReynolds's animosity towards Clarke that when Clarke resigned McReynolds refused to sign the official letter of regret over his departure.^[10]

Philosophically, Clarke demonstrated an affinity for legal realism in his opinions. He often voted with Oliver Wendell Holmes, Jr. and Louis Brandeis, usually in dissent from the conservative majority dominant on the Court at that time, though Holmes's famous dissent from the Abrams v. United States decision was in response to Clarke's majority opinion. As a Progressive, he supported the power of both national and state authorities to regulate the economy, particularly with regards to regulating child labor. His dissents on two cases, Hammer v. Dagenhart and Bailey v. Drexel Furniture Company supported Congress's authority under the Commerce Clause (in the Hammer case) and the Taxing and Spending Clause (in the Bailey case) to address what Progressives saw as a major social problem. He also demonstrated his opposition to monopoly in United States v. Reading Company, in a ruling that became a prominent part of anti-trust law.^[11]

Resignation

Clarke's impact on the Court's jurisprudence was limited by his relatively brief service on it. On September 1, 1922, Clarke sent a letter to President Warren G. Harding announcing his intention to resign from the Court. His decision was motivated by a number of factors. Apart from his dissatisfaction with his work as a justice and his ongoing difficulties with McReynolds, Clarke had recently suffered the loss of his sisters Ida and Alice. Moreover, having witnessed the physical decline of Chief Justice Edward Douglass White, he wished to avoid a similar deterioration while on the bench.^[12] Clarke would have few regrets about his decision, and informed his successor, George Sutherland, that the latter was embarking on "a dog's life"^[13]

Later years

Campaigning to join the League of Nations

In an interview three days after submitting his resignation, Clarke outlined a new cause he wanted to pursue – convincing Americans that the United States should join the League of Nations. At the time, prospects for League entry were at a low ebb, its proponents having suffered the dual setback of the Senate's rejection of the Versailles Treaty and the election of the anti-League Republican Warren G. Harding as president in 1920. Clarke's public pronouncements gave their cause a new life, and in October 1922 he became the president of a new organization, the League of Nations Non-Partisan Association. Modeled after the British League of Nations Union, the Association's mission was to awaken the underlying support for joining the League that its founders believed existed within the United States and mobilize it to overcome the opposition to League participation. Thorough it, Clarke quickly emerged as Wilson's successor in the campaign for League membership.^[14]

Though Clarke committed himself to the cause with a series of speaking tours, he soon faced a number of challenges. Expenditures quickly outpaced the Association's funding, with limited resources squandered on building up an extensive organization. Though Clarke organized a restructuring in June 1923, a far greater problem lay in his underestimation of the task he faced. Contrary to Clarke's expectations, there was no latent undercurrent of support for joining the League, only skepticism and hostility to the idea. Addressing this required a far different level of commitment than Clarke expected to make, forcing him and the rest of the Association leadership to scale back on their goals. Focusing on the issue of entry into the World Court, Clarke continued to campaign for American involvement in international organizations and agreements for the remainder of the decade.^[15]

Retirement

By the end of 1927, Clarke's growing deafness and frustration with the failures of the Association led him to resign from the Association's presidency. In retirement Clarke remained vigorous and active with a regimen of reading and travel. He also continued to participate in public service, becoming a trustee of Western Reserve University. In 1932, he backed a clandestine effort to nominate Newton Baker as the Democratic presidential candidate, though after its failure Clarke became a supporter of the New Deal and President Franklin D. Roosevelt. Despite misgivings about the methods, he sympathized with the goals underlying the president's Supreme Court "packing" plan, and at Roosevelt's request Clarke made a radio broadcast in March 1937 in which he defended the constitutionality of the proposal.

In 1931 Clarke moved from Cleveland to San Diego, where he lived in the El Cortez Apartment Hotel. It was there that he suffered a heart attack and died on March 22, 1945. He was later honored by his alma mater by having a residence hall — Clarke Tower — named after him on the Case Western Reserve campus.^[16]

References

1. ^ "The League's Advocate". Time. http://jcgi.pathfinder.com/time/magazine/article/0,9171,715285,00.html. Retrieved 2007-03-05. 
2. ^ Supreme Court Justices Who Are Phi Beta Kappa Members, ‘’Phi Beta Kappa website’’, accessed Oct 4, 2009
3. ^ Hoyt Landon Warner, The Life of Mr. Justice Clarke (Cleveland, OH: Western Reserve University Press, 1959) p. 48-9.
4. ^ James Clark McReynolds to Woodrow Wilson, July 2, 1914. Quoted in ibid, 60
5. ^ Ibid.
6. ^ Ibid, 61-2
7. ^ Woodrow Wilson to Edward M. House, July 23, 1916. in The Papers of Woodrow Wilson, vol. 37, ed. Arthur S. Link (Princeton, NJ: Princeton University Press, 1981), p. 467
8. ^ Newton D. Baker to Woodrow Wilson, July 10, 1916. In ibid, p. 397-8.
9. ^ Alexander C. Bickel and Benno C. Schmidt, Jr., The Judiciary and Responsible Government 1910-21 (History of the Supreme Court of the United States) (New York: Macmillan Publishing Company, 1985), p. 413.
10. ^ Warner, op cit, p. 115.
11. ^ Bickel and Schmidt, op cit, p. 192-7, 452-454
12. ^ Warner, op cit, p. 112-113.
13. ^ Quoted in Joel Francis Paschal, Mr. Justice Sutherland: A Man Against the State (Princeton: Princeton University Press, 1951), p. 114.
14. ^ "A New Leader". Time. http://jcgi.pathfinder.com/time/magazine/article/0,9171,717635,00.html. Retrieved 2007-03-05. 
15. ^ Carl Wittke, "Mr. Justice Clarke--A Supreme Court Judge in Retirement", The Mississippi Valley Historical Review, 36:1 (June 1949), 37-40
16. ^ http://wiki.case.edu/Clarke_Tower|Case Wiki: Clarke Tower

Bibliography

• Bickel, Alexander M. and Benno C. Schmidt, Jr. (1985). The Judiciary and Responsible Government 1910-21 (History of the Supreme Court of the United States). Macmillan Publishing Company. 
• Pratt, Walter F., Jr. (1999). The Supreme Court under Edward Douglass White, 1910-1921. University of South Carolina Press. 
• Warner, Hoyt Landon (1959). The Life of Mr. Justice Clarke: A Testament to the Power of Liberal Dissent in America. Western Reserve University Press. 

Legal offices
Preceded by Charles Evans Hughes	Associate Justice of the Supreme Court of the United States October 9, 1916 – September 18, 1922	Succeeded by George Sutherland
Awards and achievements
Preceded by Edward Eberle	Cover of Time Magazine 11 February 1924	Succeeded by Eleutherios Venizelos

Supreme Court of the United States
The White Court Chief Justice: Edward Douglass White (1910–1921) 1916–1921: J. McKenna | O.W. Holmes | Wm. R. Day | W. Van Devanter | M. Pitney | J.C. McReynolds | L.D. Brandeis | J. H. Clarke The Taft Court Chief Justice: William Howard Taft (1921–1930) 1921–1922: J. McKenna | O.W. Holmes | Wm. R. Day | W. Van Devanter | M. Pitney | J.C. McReynolds | L.D. Brandeis | J.H. Clarke

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