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27 Cumb. L. Rev. 139 (1996-1997)
Swimming in the Air: Melville W. Fuller and the Supreme Court 1888-1910

handle is hein.journals/cumlr27 and id is 149 raw text is: REVIEW ESSAY
SWIMMING IN THE AIR: MELVILLE W. FULLER AND
THE SUPREME COURT 1888-1910
THE CHIEF JUSTICESHIP OF MELVILLE W. FULLER, 1888-1910. By
James W. Ely, Jr.* Columbia: University of South Carolina
Press, 1995. Pp. xii, 248. $49.95.
Reviewed by James A. Thomson**
INTRODUCTION
Is quiet reflective history - merely muffled echoes - all that
remains of a twenty-two year (1888-1910) United States
Supreme Court epoch?' An expanding array of scholarship2
* Professor of Law, Vanderbilt University.
LL.B (Hons) 1971, BA 1974, University of Western Australia; LL.M 1975, S.J.D.
1981, Harvard University.
It is almost impossible... to reproduce the emotions of that period of early
[Civil] war enlistments .... To call it a sense of novelty was nothing; it was
as if one had learned to swim in the air, and were striking out for some new
planet. All the methods, standards, habits, and aims of ordinary life were
reversed, and the intrinsic and traditional charm of the soldier's life were
mingled in my own case with the firm faith that the death-knell of slavery
itself was being sounded.
THOMAS WENTWORTH HIGGINSON, CHEERFUL YESTERDAYS (William Loren Katz ed., Arno
Press 1968) (1898) (emphasis added) (quoted in EDMUND WILSON, Justice Oliver Wendell
Holmes, in PATRIOTIC GORE: STUDIES IN THE LITERATURE OF THE AMERICAN CIVIL WAR
743, 747 (1962)). See also Thomas W. Higginson, Preface, in I HARVARD MEMORAL
BIOGRAPHIES ii (1866) (as if... one had learned to swim in air) (emphasis added)
(quoted in SHELDON M. NOVICK, HONORABLE JUSTICE: THE LIFE OF OLIVER WENDELL
HOLMES 35 (1989)). On Higginson, see TILDEN G. EDELSTEIN, STRANGE ENTHUSIASM: A
LIFE OF THOMAS WENTWORTH HIGGINSON (1968); WILSON, supra, at 239-57, 639-40, 651-
53; M. A. De[Wolfe] H[owe], Higginson, Thomas Wentworth, in 5 AMERICAN DICTIONARY
OF BIOGRAPHY 16-18 (Dumas Malone ed., 1932).
'In addition to judicial biographies, see, e.g., infra notes 16, 19-23, 28-29, 93, 156-57,
178 and 243, constitutional history narratives encompassing this era include LOREN P.
BETH, THE DEVELOPMENT OF THE AMERICAN CONSTITUTION 1877-1917 (1971); CANDACE
DALRYMPLE, SEXUAL DISTINCTIONS IN THE LAW: EARLY MAXIMUM HOUR DECISIONS OF THE
UNITED STATES SUPREME COURT, 1905-1917, at 65-99 (1987); OWEN M. FIss, HISTORY OF
THE SUPREME COURT OF THE UNITED STATES: TROUBLED BEGINNINGS OF THE MODERN
STATE, 1888-1910 (1993); HOWARD GILLMAN, THE CONSTITUTION BESIEGED: THE RISE
AND DEMISE OF THE LOCHNER ERA POLICE POWERS JURISPRUDENCE (1993); ROBERT G.
MCCLOSKEY, THE AMERICAN SUPREME COURT 87-104 (Sanford Levinson, 2d ed. 1994);
GUSTAVUS MYERS, HISTORY OF THE SUPREME COURT OF THE UNITED STATES 578-694
(1912); ARNOLD M. PAUL, CONSERVATIVE CRISIS AND THE RULE OF LAW: ATTITUDES OF
THE BAR AND BENCH, 1887-1895 (Harper & Row 1969) (1960); LEO PFEFFER, THIS
HONORABLE COURT 204-49 (1965); JOHN E. SEMONCHE, CHARTING THE FUTURE: THE
SUPREME COURT RESPONDS TO A CHANGING SOCIETY, 1890-1920 (1978); WILLIAM F.

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