The Man Behind the Robe

Edward Terry Sanford

In the sweltering heat of September 1934, when the last thing anyone probably wanted to think about was wearing an additional layer of clothing, a movement began among Knoxville Bar Association’s members to get Knox County judges to adopt the custom of wearing robes while on the bench.1

The supporters of the movement “point[ed] to the fact that the late Justice Edward Terry Sanford, of the United States Supreme Court, a Knoxvillian, introduced the custom in Tennessee” while he was a federal district court judge2 and cited “the added dignity that the wearing of the black robes brings to the bench, the robe being the symbol of the judiciary, which is in turn the embodiment of the people’s majesty as applied to the settlement of legal controversies.”3

Sanford had died suddenly in 1930,4 and memories of the man who had been recognized as “one of the ablest lawyers in the country,”5  “one of the more prominent and personable Tennesseans of his time,”6 and as his hometown’s “most illustrious son,”7 were still fresh. Who was this trendsetter?  

Despite growing up in a home where guests of the family included the likes of presidents Benjamin Harrison and Theodore Roosevelt along with future president William McKinley,8 Sanford’s adoption of the judicial uniform of “the good old days of British aristocracy” when “being a judge … was a privilege enjoyed exclusively by the members of the nobility”8 was not revealing an elitist attitude.10  Nor was he forgetting the desire of Founders like Thomas Jefferson to purge the country of English aristocratic symbols that promoted the “needless official appeal” of judges, a view particularly shared in the South.11 Sanford, ever the historian, was well versed in the history and spirit of American institutions and viewed the robe as symbolizing “centuries of honorable judicial function and contribution” and a reminder “to uphold justice and fairness at all times.”12  As for the judicial robe trend Sanford began in Tennessee, Judge Xenophon Hicks, Sanford’s successor on the United States District Court for the Eastern District of Tennessee, “followed Judge Sanford’s example,” and the custom was continued by Judge George C. Taylor.13  “In the meantime, first the Tennessee Supreme Court, then the Court of Civil Appeals … adopted the custom.”14

Edward Terry Sanford was born in Knoxville a few months after the conclusion of the Civil War on July 23, 1865.  Growing up in East Tennessee, an area that experienced constant suffering, deprivations, and dislocations related to the war, left a lasting impression on him. These post-war conditions influenced Sanford’s career and the choices he made in it. Fortunately for Sanford, his father recognized how to turn the adverse conditions to business successes. The family soon became one of the richest and most prominent in Knoxville.

Sanford entered the University of Tennessee at the age of 14 and excelled at his studies. He earned two bachelor’s degrees and graduated at the head of his class. At the graduation exercises in June 1883, his valedictory oration, “Danger Ahead,” warned “against the dangers of Communism in America.”15  Backed by the financial resources of his father, Sanford continued his education at Harvard, where he was awarded another bachelor’s degree, a master’s degree and a law degree. He served as one of the first editors of the Harvard Law Review, which was established while Sanford was a student. For the remainder of his life, Sanford stayed active in the affairs of the University of Tennessee and Harvard.

Upon completion of his educational pursuits, Sanford returned to Knoxville and became an accomplished attorney and a lecturer at the University of Tennessee’s law school, teaching courses in corporation law and federal practice and procedure. From a young age, Sanford was fascinated with history, so it was no stretch for him also to teach a course on the history of the state in the undergraduate department. He remained a constant advocate for the university, serving twice as president of the alumni association and on the board of trustees.16 Sanford also became widely known as a writer and public speaker upon legal, historical, and educational subjects.  He further worked as a booster for improving education across the South, as he believed that “the best resource of the South is its people,”17 and “the best way to develop [this resource] is to develop the capacities of its people.” Sanford served on the executive committee of the Conference on Education in the South, a body that supported public education in the region. His support for public school education in the South was also demonstrated through his involvement with the George Peabody College for Teachers, the leading school for training teachers in the South.

Sanford’s father was active in politics and encouraged his son to follow suit.  Sanford campaigned on behalf of the Republican national tickets in 1896, 1900 and 1904. In 1896, he gave numerous speeches across the state in support of presidential candidate William McKinley. Press reports regarding an event in Lenoir City noted that Sanford’s speech had decried the economic radicalism of McKinley’s opponent, William Jennings Bryan, the congressman from Nebraska. Sanford had further described Bryan’s famous “cross of gold” speech as an effort “to force the nation into bankruptcy.”18 By the late 1890s, Sanford was being described as “one of the most prominent politicians in Tennessee.”19 In 1904, Sanford made his only try for elective office, seeking the Republican nomination for governor. Despite not gaining the nomination, Sanford, with his high sense of public duty and involvement in numerous civic activities, remained extremely popular across the state and continued to be mentioned frequently as a candidate for governor.20

Characteristics Sanford did not share with his father were an innate business sense and a “consuming desire for wealth as an end in itself rather than as a means of worthier ends.”21 Yet, as an attorney, he represented his father’s many banking, railroad, mining and manufacturing interests and was intimately involved as a director and stockholder. In one lawsuit considered significant in Tennessee labor history, Knoxville Iron Company v. Harbison, Sanford challenged an 1899 state law barring companies from paying employees in scrip all the way to the United States Supreme Court.22 But his speeches betrayed his true beliefs. In a speech given eight years before his father’s death in 1902, Sanford condemned “the arrogance of wealth” and “our national absorption in things material.” As Sanford noted:  “Instead of being the owners of wealth for nobler uses, we are fast becoming its diggers merely, its watch dogs and its slaves.”23

During the 1920s, Sanford continued to criticize greed and the seeking of wealth:

We are wasting time on things that count for nothing, on the joys that are alluring but that lead nowhere that we should be led.  Greed is with us, instead of unselfishness; avarice, the making of money at the expense of one’s fellows; the feverish desire of people not to cooperate with their neighbors, but get ahead of them, the dividing into camps of hatred, of jealousy, of suspicion, between men and classes of men.24

Despite the opportunities his family’s wealth had provided to him, Sanford looked unfavorably on his father’s tireless pursuit of financial gain. 

Once out of the shadow of his father’s dominating personality, Sanford instead pursued a career in public service.25  Sanford worked for the Department of Justice from 1904 to 1908, initially as a special assistant to prosecute the Fertilizer Trust. “The marked ability” Sanford exhibited in his work in the Fertilizer Trust cases helped secure his appointment to the position of assistant attorney general.26 During his time in that role, Sanford served as lead prosecutor in the Government’s prosecution of Hamilton County Sheriff Joseph Shipp and others involved in the 1906 lynching of federal prisoner Ed Johnson, a black man who was the subject of a writ of habeas corpus issued by the United States Supreme Court.  Despite the Court staying the execution of Johnson, Shipp allowed a mob to break into the Hamilton County jail and hang the prisoner from the Walnut Street Bridge over the Tennessee River.27 At the conclusion of Sanford’s prosecutorial efforts, Shipp, the jailer, and four mob members were found guilty of contempt in the only criminal trial conducted to date by the Supreme Court, heard for the most part in the United States Custom House in Chattanooga.28

By the time the Shipp decision was announced by the Supreme Court in May 1909, President Theodore Roosevelt had nominated Sanford in May 1908 to be the United States District Judge for the Eastern and Middle Districts of Tennessee.29  The two districts covered a huge expanse of territory to be served by only one judge.  For 15 years, from 1908 to 1923, he sat at Greeneville, Knoxville, Nashville, Cookeville and Chattanooga. The workload was soul-crushing, consisting of moonshining and Prohibition cases in particular. “Open-minded” and “scrupulously fair,” Sanford gained a reputation as a lenient, thorough and impartial judge.30  His former law partner, James A. Fowler, once noted:

He was just as careful in trying and disposing of an accusation against the most humble mountaineer as in considering the most important litigation pending in his court.  Never did a Judge have a keener sense of Justice, or was inspired with a greater determination to see that equal and exact justice was administered to everyone.  If he deviated in any respect from that cause, it was on the side of mercy towards the many poor defendants who were arraigned before him.31

In 1923, President Warren G. Harding named Sanford to the United States Supreme Court. When viewed through a modern lens, an amazing aspect of his selection was the support he received from Southern Democrats.  For example, an eminent Democratic attorney from Tennessee penned the following support letter:

Without the slightest regard to party affiliations, the people of this State are behind Judge Sanford’s application. The Democrats will be as well satisfied with his appointment as if he were one of them. In fact his brand of Republicanism, as manifested in his loyalty to the Constitution and constant efforts to elevate the manhood of this State by an even-handed enforcement of the law, has tended largely to wipe out that prejudice which has kept the Southerner in the Democratic ranks. Every citizen who has served as a juror, every litigant and every lawyer who has been in any of his numerous terms of Court, is a better American citizen today than he was before for this experience.32

Such a letter in today’s political climate is unimaginable.

Sanford’s greatest impact as a member of the Court came in the area of civil liberties. In 1925, Sanford, writing for the Court, penned the decision in Gitlow v. New York. In the opinion, Sanford expressed his most famous words as a supreme court justice:

For present purposes we  may and do assume that freedom of speech and of the press — which are protected by the First Amendment from abridgment by Congress — are among the fundamental personal rights and “liberties” protected by the due process clause of the Fourteenth Amendment from impairment by the States.33

 Prior to this decision, the Bill of Rights had been extended only to matters overseen by the federal government, as the only governmental institution mentioned in the Bill of Rights is Congress.  In 1897, in Chicago, Burlington & Quincy Railroad v. City of Chicago,34 authored by Justice John Marshall Harlan, the court had ruled that some form of just compensation is required for property taken by state or local governments.  However, in the court’s decisions in Maxwell v. Dow (1900)35 and Twining v. New Jersey (1908),36 Justice Harlan’s position was regulated to dissenting opinions.  As late as 1922, in Prudential Insurance Co. v. Cheek,37 the court held that “neither the Fourteenth Amendment nor any other provision of the Constitution … imposes upon the states any restrictions about ‘freedom of speech.’”  In Gitlow, Sanford stated that the Fourteenth Amendment’s due process clause allowed the application of the First Amendment to a state’s statute restricting speech. His pronouncement is recognized by many as the beginning of the process of incorporating the guarantees of the Bill of Rights and making them applicable to the states through the Fourteenth Amendment’s due process clause.38 In a speech at Harvard in 1885, a 20-year-old Sanford once expressed the desire to “cut[] the trail that progressive humanity may hereafter broaden into a highway” and recognized that he might toil “for a scant justice that can come only long after the clods have rattled upon his coffin lid.”39 He accomplished his goal by triggering the process that would eventually profoundly alter the American legal landscape, as there is no constitutional issue of greater practical interest to the everyday lives of Americans than the incorporation doctrine.40

Over the years, Sanford had a close relationship with the Tennessee Bar Association, serving as its president for the 1903-4 term (filling a vacancy caused by the death of the sitting president) and in 1905-6.  He constantly strove to improve and promote the legal profession.  So active was he in the organization during his career that officials declared at a 1913 meeting that “there is no member of the Tennessee Bar Association who has contributed more to its success and to the success of its annual meeting.”41 In 1921, the Tennessee Bar Association was an early promoter of Sanford’s candidacy on the Supreme Court:

[Sanford] is a citizen of unblemished character, having lived an exemplary life among the people where he was born and reared. In his social relations with his fellows he is a Prince, he is loved by all with whom he is acquainted, and his name as a citizen and a Judge is honored and respected wherever known. For many years Edward T. Sanford was recognized as one of the ablest lawyers of Tennessee …. He always exemplified the highest ideals in his profession.
* * *
He has made a faithful, industrious, able, fearless and just Judge: and we confidently assert that no more capable or efficient District Judge ever sat on the Bench.
While Judge Sanford is profoundly learned in the science of the law, he has by no means lost himself in dogmas and theories; he is distinctly practical and human; he has a sense of sympathy for all those in distress.  He gives equally careful consideration to the great and the small. He possesses the fine combination of a clear head and a good heart. In him are the elements of true greatness.42

As was noted in an editorial in The Knoxville News-Sentinel shortly after his death, Sanford went on to “attain[] an eminence that few men ascend to.”43  Yet, as once observed by United States Supreme Court Justice Sandra Day O’Connor:

[There are justices] who have served the country … usually with honor, but whom history has all but forgotten… . Each was shaped by, and shaped, his times and circumstances. And each reveals that the judge is more than his jurisprudence.  Underneath their robes, so to speak, the Justices of the Supreme Court are real, often quite unique, people.    With all the current focus on judges’ so-called ideologies, it is worth remembering that a judge’s personal history and character also matter.44

Next time you look at a Tennessee judge in a robe, remember the legacy of Edward Terry Sanford.



Stephanie L. Slater is the author of Edward Terry Sanford: A Tennessean on the U.S. Supreme Court. She is a three-time graduate of the University of Tennessee in Knoxville (B.A., M.S., J.D.).  She has worked in the state and federal court systems in Tennessee since obtaining her law degree in 1990. In addition to her book, she has had articles appear in the Journal of Supreme Court History and Tennessee Law Review.



 

Notes
1. “Broach Wearing of Robes by Judges of Knox Courts,” The Knoxville News-Sentinel (Sept. 12, 1934) at 11.
2. Id.
3. Id.
4. Sanford is buried in Greenwood Cemetery in Knoxville.
5. Letter from David W. Kuhn to Andrew W. Mellon (Jan. 6, 1923), Dep’t of Justice Records, Nat’l Archives, College Park, Md.
6. Lewis Laska, “Mr. Justice Sanford and the Fourteenth Amendment,” Tennessee Historical Quarterly, Vol. 33, No. 2 (Summer 1974) at 211.
7. “Edward Terry Sanford,” The Knoxville News-Sentinel (Mar. 9, 1930) at 22.
8. “Society Welcomes Sanfords,” The Washington Post (Feb. 18, 1907) at 7; The Cincinnati Enquirer (June 1, 1913) at 5.
9. Andie Pantazie, “Judicial History 101: Why U.S. Judges Dress the Way They Do,” www.judicialshop.com/blog/judicial-history-101-why-us-judges-dress-the-w... (last visited June 21, 2018).
10. In his youth, however, he did utter comments about “pig-tail Chinam[e]n,” “half-breed Mexican[s],” and “wild Indians.” Stephanie L. Slater, Edward Terry Sanford:  A Tennessean on the U.S. Supreme Court (Knoxville: University of Tennessee Press, 2018) at 90-91.
11. Pantazie, “Judicial History 101: Why U.S. Judges Dress the Way They Do,” www.judicialshop.com/blog/judicial-history-101-why-us-judges-dress-the-w... (last visited June 21, 2018).
Britain regulated the judicial dress in the American colonies. Interestingly, scarlet robes rather than black ones were proper attire. Leslie Harris, “Legal and Judicial Costume,” https://fashion-history.lovetoknow.com/clothing-types-styles/legal-judic....
12. Pantazie, “Judicial History 101: Why U.S. Judges Dress the Way They Do,” www.judicialshop.com/blog/judicial-history-101-why-us-judges-dress-the-w... (last visited June 21, 2018). 
13. “Broach Wearing of Robes By Judges of Knox Courts,” The Knoxville News-Sentinel (Sept. 12, 1934) at 11. 
14. Id. A photo of the 1909 Tennessee Supreme Court in the Supreme Court building in Knoxville reveals that the justices did not wear robes prior to 1920. In A History of the Tennessee Supreme Court, former Justice Samuel Cole Williams is cited as the source that “it was not until about 1923 that the court began the custom of wearing judicial robes.” James W. Ely Jr., ed. (Knoxville: Univ. of Tennessee Press 2002) at 225. According to Williams, “some of the justices saw such robing as undemocratic,” and one justice declared to his colleagues, “You who favor robes may appear on the bench so attired. For my part, I shall sit in citizen’s clothes.” Id. (citing William H. Combs & William E. Cole, Tennessee: A Political Study (Knoxville: Univ. of Tennessee Press, 1940) at 144-45; Samuel Cole Williams, Phases of the History of the Supreme Court of Tennessee (Johnson City, Tenn.: Watauga Press 1944) at 87).
15. Slater, Edward Terry Sanford, at 41.
16. Sanford was chairman of the committee overseeing the law school. The Tennessee Law Review observed that “[t]he College of Law, in particular, has reason to regret this departure, for Judge Sanford ‘gave constantly of his best efforts for the development and upbuilding of this college.’” Id. at 47.
17. Id. at 89 (quoting Edward T. Sanford, Blount College and the University
of Tennessee: A Historical Address Delivered Before the Alumni Association and Members of the University of Tennessee, June 12, 1894 (Knoxville: Univ. of Tennessee, 1894) at 78).
18. Id. at 84 (quoting “At Lenoir City:  Mr. Edward T. Sanford Made an Impressive Speech,” The Knoxville Journal, Oct. 29, 1896, at 4).
19. Id. at 113 (quoting The Atlanta Constitution, Feb. 20, 1897, at 6.
20. Id.
21. Id. at 43 (citing 6 The University of Tennessee Record, No. 2, at 261).
22. Id. at 77-78 (Knoxville Iron Co. v. Harbison, 183 U.S. 13 (1901)). Harbison “marked a major turning point in vindicating state legislative authority to supervise the manner of wage payments.”
Ely, A History of the Tennessee Supreme Court, at 161.
23. Id. at 43 (quoting Edward T. Sanford, Blount College and the University
of Tennessee: A Historical Address Delivered Before the Alumni Association and Members of the University of Tennessee, June 12, 1894 (Knoxville: Univ. of Tennessee 1894) at 78).
24. Id. at 108 (Edward T. Sanford Papers, MPA. 0303. Univ. of Tennessee Libraries, Knoxville, Special Collections).
25. Id. at 124.
26. Id. at 130 (quoting Charles A. Noone, “Edward Terry Sanford: Gentleman, Scholar, Lawyer, Jurist,” 43 Commercial Law Journal 34 (1938) at 35 (quoting Attorney General William D. Mitchell)).
27. Id. at 139.
28. Id. at 141-42. United States v. Shipp, 214 U.S. 386 (1909).
29. Id. at 145.
30. Id. at 155.
31. Id. at 156 (quoting Fowler, “Mr. Justice Edward T. Sanford,” at 230).
32. Id. at 190 (quoting Fowler,
id. at 232).
33. Gitlow v. New York, 268 U.S. 652 (1925).
34. 166 U.S. 226 (1897).
35. 176 U.S. 581 (1900).
36. 211 U.S. 78 (1908).
37. 259 U.S. 530 (1922).
38. Slater, Edward Terry Sanford, at 281.
39. Id. at 51.
40. Id. at 304.
41. Id. at 97 (quoting 32 Proceedings of the Annual Meeting of the Bar Association of Tennessee (1913) at 228).
42. Id. at 189 (quoting “Resolution for Consideration and Nomination of Judge Edward Sanford as Justice of the United States Supreme Court, with Discussion,” 40 Proceedings of the Annual Session of the Bar Association of Tennessee (1921) at 50-55).
43. “Edward Terry Sanford,” The Knoxville News-Sentinel (Mar. 9, 1930) at 22.
44. Slater, Edward Terry Sanford, at 237 (quoting O’Connor, Out of Order:  Stories from the History of the Supreme Court (New York: Random House, 2013) at 126-27).

          | TBA Law Blog