John Hessin Clarke

CLARKE, JOHN HESSIN

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 of Nations—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.

FURTHER READINGS
Cushman, Claire, ed. 1993. The Supreme Court Justices: Illustrated
Biographies, 1789–1993. Washington, D.C.: Congressional
Quarterly.
Friedman, Leon, and Fred L. Israel, eds. 1969. The Justices of
the United States Supreme Court, 1789–1969: Their Lives
and Major Opinions. New York: Chelsea House.