Path to the Supreme Court
Joseph McKenna, a Philadelphia-born baker's son who grew up Irish Catholic in Benicia, California, rode political loyalty further than legal learning: county district attorney, four-term congressman on Ways and Means beside his friend William McKinley, Ninth Circuit judge by grace of Leland Stanford, then McKinley's Attorney General. Named in December 1897 to the seat of the retiring Field (§38), he knew his own gaps — between nomination and confirmation he sat in on lectures at Columbia Law School for a month. He stayed twenty-seven years.
On the Supreme Court
McKenna grew into the work. His Weems v. United States made the Eighth Amendment a living limit — cruel and unusual punishment 'may acquire meaning as public opinion becomes enlightened by a humane justice' — the seed of every evolving-standards case since. He wrote the opinions sustaining the new federal police power: Hipolite Egg for pure-food seizures, Hoke v. United States for the Mann Act. The end was slow. After a 1915 stroke his powers ebbed, and by late 1924 Chief Justice Taft and the brethren privately agreed to hold over any case in which McKenna's vote would decide the result. Pressed by Taft, he resigned in January 1925, past eighty-one.
The Voting Record
How McKenna voted in the 5,695 cases the Supreme Court Database records from the 1895 term through the 1924 term, using that database’s classification of each vote as liberal or conservative. The gold tick on each bar is the rate for the other justices sitting on those same cases.
Across the whole career McKenna voted with Van Devanter more than with anyone else — the same side of the judgment in 69.0% of their 422 divided cases — and with Harlan least, at 48.2%. See this Court →Compared against the 11 colleagues McKenna shared at least 300 divided cases with.
Source · The Supreme Court Database (Spaeth, Epstein, Nelson, Martin, et al.) · how these figures are made
Key Decisions
Weems v. United States
1910Holding · The Philippine cadena punishment was cruel and unusual; the Eighth Amendment is progressive, not frozen at 1791.
Role · McKenna wrote for a short-handed Court, 4–2, over dissents by White (§55) and Holmes (§58).
The origin of 'evolving standards' Eighth Amendment law — quoted in every modern punishment case from Trop to the death-penalty docket.
Read the opinion →Hoke v. United States
1913Holding · The Mann Act was constitutional; Congress may bar interstate transportation for immoral purposes.
Role · McKenna wrote for a unanimous Court.
With Hipolite Egg, the commerce clause as national police power — the doctrinal road the New Deal later widened.
Read the opinion →Go Deeper
Joseph McKenna is the improbable Irish-Catholic arriviste of the Gilded Age bench — a saloonkeeper's son from the Pennsylvania coal country who rose through California machine politics to Congress, McKinley's cabinet, and twenty-seven years on the Supreme Court, the last of them clouded by a decline his colleagues finally had to manage. His one biography is Matthew McDevitt's Joseph McKenna (1946). Start there, read a representative opinion or two, and set him in the era with the Holmes Devise volumes.
The Bookshelf
The only full biography, from a Catholic University of America dissertation — and frankly protective of its subject, but the sole sustained account of a genuinely unlikely justice. McDevitt traces the whole climb: the immigrant Catholic boyhood in a hostile Know-Nothing Pennsylvania, the move to California, the district attorneyship, the congressional seat, the circuit judgeship, and McKinley's decision to make his attorney general a justice in 1898 — over doubts about a man whose formal legal training was thin. McDevitt is gentle about the decline that ended it; read him for the rise, and supplement for the fall.
McKenna's most consequential opinion, and a study in how the Court changes its mind without saying so. Upholding Oregon's ten-hour law for most industrial workers, McKenna sustained almost exactly the kind of general labor regulation Peckham's Lochner (§56) had struck down twelve years before — and did it without mentioning Lochner at all. Bunting is the moment liberty of contract quietly began to recede, a decade before its formal burial. Free online.
McKenna's long tenure (1898–1925) spans two Holmes Devise volumes, and both belong here: Fiss's Troubled Beginnings for the Fuller-Court years, Bickel and Schmidt's The Judiciary and Responsible Government for the White-Court years where McKenna did his notable work — Bunting, the antitrust cases, the wartime speech cases. Bickel and Schmidt are especially good on the Court's uneven passage into the twentieth century, the current McKenna drifted along with more than he shaped. Macmillan.
A crisper, more balanced narrative than McDevitt's admiring full-dress life — useful precisely because it is willing to weigh the weaknesses: the thin legal preparation, the erratic voting, and above all the painful endgame, when Chief Justice Taft (§69) and the brethren, alarmed by his failing memory, quietly agreed to withhold cases from him and at last persuaded him to retire in 1925. The fastest honest measure of the man.
The standard modern biographical encyclopedia of the Court: a signed essay on each of the 110 justices from Jay to Alito, alphabetically arranged, by a named scholar or journalist. Length tracks reputation — two pages for Thomas Johnson, three for Woods, eleven for Holmes — which is itself a rough map of who the literature has bothered with. It is not a substitute for a biography, and for the justices who have never had one it is often the most careful short account in print. Borrow it free at the Internet Archive.
The one-volume reference on the Court: more than a thousand signed entries on cases, doctrines, institutions and the justices, current to 2005. Cases and people share one alphabet, so a citation can be followed without changing volumes, and the biographical entries are short, written by specialists, and better than a longer sketch at carrying the historiography — what the argument about a justice currently is. Borrow it free at the Internet Archive.
The Reading Path
A researched route through the literature — in order.
- 1.McDevitt — for the only full life — the immigrant climb to the Court
- 2.Bunting v. Oregon — for the quiet retreat from Lochner (§56)
- 3.The Friedman & Israel chapter — for the honest measure, decline included
- 4.Bickel & Schmidt and Fiss — for the two eras his long tenure spanned
Where the Papers Are Kept
Scattered McKenna papers survive at the Library of Congress and in the Catholic University of America archives (the base for McDevitt's 1946 biography); no large personal collection exists. Visit →
Online Resources
Ideas for Further Research
- The managed decline. McKenna's endgame is the Court's classic case of colleagues quietly working around a justice too diminished to serve — Taft (§69) withholding cases, the brethren agreeing to decide nothing by his deciding vote, the gentle push to retire in 1925. Set it beside the harder endings (Hunt §42, held on by a pension law; Field §38, who would not go; Moody §60, forced off by illness with a special act): the institution's evolving, informal answer to the problem of the failing justice.
- The Catholic outsider. McKenna reached the Court in a country where anti-Catholic Know-Nothingism had shaped his boyhood — one of only a handful of Catholic justices before the modern era (Taney §24, White §55). Trace how his faith and immigrant origins figured in his appointment and reputation, and against the WASP-Brahmin default of the bench (Gray §47, Holmes §58, Moody §60).
- Bunting and the silent overruling. McKenna's Bunting v. Oregon (1917) sustained the very sort of law Lochner (§56) had voided, without a word about the precedent. Study it as a specimen of how the Court retreats from a doctrine it is not ready to renounce — the long slow unwinding of Lochnerism from Bunting to West Coast Hotel (1937). Seat lineage: Field §38 → McKenna → Stone.