Yesterday I talked about the great labor decision of In re Debs (U.S. 1895) to a group of high school teachers who are participating in the Summer Institute for Teachers, co-sponsored by the Federal Judicial Center and the American Bar Association's Division for Public Education. The teachers are learning about three "Federal Trials and Great Debates in United States History" (Aaron Burr's Treason Trial, Debs, and the Chicago Seven Conspiracy Trial) and producing a curriculum for each dispute. They had read an excellent set of materials prepared by David Ray Papke on the great Pullman Strike and Boycott of 1894 and the injunction and indictment obtained by the U.S. government against Eugene V. Debs, the president of the American Railway Union. The materials included a compact narrative, which drew upon Papke's book, biographical sketches of the dramatis personae, correspondence, well chosen excerpts from legal briefs, oral arguments, judicial opinions, Debs's speeches, the report of the U.S. Strike Commission, and contemporaneous commentary in newspapers and magazines.
My job was not to summarize the materials but to put Debs "in context." What could be easier, given the significance of the case for labor and political history? After all, Harper's Weekly likened the the boycott to the Civil War; in the wake of the unanimous decision of the U.S. Supreme Court, written by David Brewer, "government by injunction" became a common epithet in popular politics. And yet I found the task challenging--and not simply because I've never written about or taught the case before.
The challenge wasn't because the consequences of the decision for labor history were hard to state. Extremely able labor historians, including Richard Schneirov, Shelton Stromquist, Nick Salvatore and Melvyn Dubofksy, have given the case sustained treatment. I think I got out the contrast between the ARU's industrial unionism and the craft unionism of the AFL and operating brotherhoods well enough. My conclusion that the case was a "great" labor decision because it set back the cause of industrial unionism forty years is, I think, a sufficiently plausible claim for the purposes at hand.
Similarly, the significance of Debs in the political history of the federal judiciary is can be conveyed vividly enough. Here I was helped by one of the teachers, who pointed out that Brewer's extraordinarily strong assertion of federal judicial power in protecting interstate commerce contrasted markedly with the Supreme Court's retreat from civil liberties. Papke's materials showed the conflict between the federal judiciary and state government in the particular context of the Debs boycott in the sketch of Illinois Governor John Altgeld, who opposed federal intervention, and his selection from Brewer's decision, which included the jurist's insistence that "the whole interests of the nation" must not be put "at the absolute mercy" of the inhabitants of state. From there it was easy to go to the federal judiciary's more general role of protector of Eastern capital from the depredations of Western populists, with a bow to William Ross's A Muted Fury and Edward Purcell's Litigation and Inequality. (I forgot to mention the Democrats' anti-injunction plank.) When all was said and done, I concluded that a talented teacher might be able to use Debs to get students to care about whether federal courts were used as the agency of distant economic power--as imperial courts in a domestic "colony."
The challenge came when I tried to discuss Debs's significance for the history of American labor law without making everyone's eyes glaze over. Here I ran up against the problem of teaching a Great Case. A case becomes "great" in part because it has consequences for a wide range of cases of the same sort. But it is also great because it has some unique aspect that sets it apart from the typical and makes it a class by itself. This unique quality can make generalizing from a Great Case to the typical one perilous; the extrapolation is bound to distort to some extent. Bush v. Gore is a Great Case, but if it were all legal historians from some distant future had to go on, they would construct a very different body of election law than what actually prevailed in 2000.
The same is true for Debs and the typical labor case between Reconstruction and the New Deal. Our best evidence--the contemporaneous studies of the labor economist Edwin Witte and the political scientist Paul Brissenden found many more state than federal cases. Most were disputes between private parties and not a public body. Most cases were based on the common law (increasingly intentional tort; decreasingly conspiracy) or minor criminal ordinances (as David Montgomery pointed out), some were based on other federal laws (bankruptcy, the Interstate Commerce Act, Sherman Act), but it's hard to think of another labor decision built directly on the rock of the Commerce Clause, as the Supreme Court's in Debs was. Lawsuits against secondary pressure (such as the Pullman boycott) became increasingly common, as William Forbath argued; still, I suspect that the view from Sylvester Petro's study of reported decisions in the Wake Forest Law Review (1978) is right, and that many more involved the policing or abolition of picketing in a primary strike.
What Debs had in common was the typical labor case was that it was an injunction suit. In the "forest of injunctions," Papke writes, "the Pullman injunction stands the tallest." It was not the first American labor injunction--to date that honor goes to Muller v. Grantz, an often overlooked and unreported decision in a New York City trial court in 1875. Federal injunctions date from the Great Upheaval of 1877. But Debs decisively resolved lingering doubts about whether the equitable remedy of injunction was available in labor disputes.
The doubts arose because of three widely accepted maxims: (1) equity only interferes for the protection of property; (2) equity does not enjoin a crime; and (3) equity does not interfere when the remedy at law is adequate. Papke's materials show that each maxim was urged as a bar to the Debs injunction and that each was squarely rejected. (Owen Fiss's masterful analysis in his Holmes Devise history of the Fuller Court is must reading on this point.) Lawyers for trade unions might fulminate, as one of Debs's lawyers did, that the decision was "judicial despotism, pure and simple," but they could offer no precedent as authoritative as a unanimous decision of the U.S. Supreme Court.
If the bell rang at that point, perhaps the teacher could escape unscathed. But what if it didn't and puzzled students started asking questions: What do you mean by "equity," and why should it only protect property? Why shouldn't equity enjoin a crime? Being told not to do something sounds a lot better than being jailed for doing it. And how is a remedy "at law" different from an injunction? Haven't we been talking about law the entire class?
Yesterday, I tried to anticipate these questions with my best, but, I'm afraid, cartoonish, rehearsal of the horrors of Star Chamber, the commonly lawyers' doughty opposition to Stuart absolutism, the twelve judges in Westminster Hall, the chancellor's foot, the Navigation Acts and colonial admiralty courts. (I got through it by not thinking too much about what my teachers Charles Wood, Charles Gray, Richard Helmholz and John Langbein would have said about my performance.) The school teachers gamely followed along, but I sensed they were wondering, as I was, whether all this wasn't going to be an awfully hard sell to kids on a steady diet of Guitar Hero and Gossip Girl. If teaching Debs also means teaching the Prohibitions del Roy, then maybe this is one Great Case that can't be taught in a high school, especially as Sir Edward Coke (pictured at left) isn't likely to come up on the AP American History exam.
Perhaps labor history and the political history of the federal judiciary are enough of a reason to teach Debs to high school students. Perhaps I'm wrong to doubt their interest in the institutional and doctrinal background of the labor injunction. In the end, I decided I could safely leave the matter to my audience of high school educators. After all, when it comes to teaching, they're the pros.