2009-06-20 / Columnists

A Look at History

Supreme Court Justice Was Summer Resident on Mackinac Island
BY FRANK STRAUS

Our federal Supreme Court is in the news in 2009; a longtime justice is stepping down and a confirmation debate is shaping up on his successor. The news accounts remind us of how important our Supreme Court is to the everyday lives of Americans. Few of us know that a former neighbor of ours was one of the nine justices of the nation's highest court. He was Justice William R. Day of Canton, Ohio, and Mackinac Island. His summer home, the current Audrey Gallery residence, sits on the southwest corner of the Common in Hubbard's Annex.

Day, who was born in Ohio, studied law at the University of Michigan before returning to his home state. Settling in the small railroad city of Canton in 1872, the young lawyer set out to take advantage of what has been called America's "Gilded Age." Canton had access to Pennsylvania coal and specialized in the manufacture of wrought iron, a forged predecessor of steel used to build high-tech goods of that day such as railroad rails and cantilever bridge trusses.

Like many lawyers, Day rose to the federal appellate bench through politics. In Canton, the young advocate made friends with a fast-rising political leader, William McKinley, the son of a local "ironmaster." McKinley was elected from Canton to Congress in 1876 and rose to be governor of Ohio in 1892 and President-elect in 1896. Throughout this time, Day was part of the future President's inner circle of friends. The new chief executive rewarded Day by appointing him to be Assistant Secretary of State.

Justice William Day resided in this Charles Caskey cottage which sits on the southwest corner of the Common in Hubbard's Annex. (Photograph courtesy of Mackinac Historical State Park) Justice William Day resided in this Charles Caskey cottage which sits on the southwest corner of the Common in Hubbard's Annex. (Photograph courtesy of Mackinac Historical State Park) As a leader of the State Department in April 1898, Day was 49 years old when a diplomatic crisis broke out. A mysterious explosion on the battleship U.S.S. Maine in February of that year had led to rising international tensions between the United States and the kingdom of Spain. The existing Secretary of State was old and enfeebled, and as war approached, Mc- Kinley decided to ask him to hand in his portfolio. On April 28, 1898, Day stepped up from being assistant Secretary of State to full Secretary. Headaches came at once. The Spanish-American War had broken out three days earlier.

As wartime leader of the State Department, Day took charge of writing cables to the major European monarchies such as Austria, Britain, Germany, Italy, and Russia, successfully urging these wealthy but aging dynasties not to support their fellow European nation. The diplomatic blitz was completely successful. Within four months, the kingdom of Spain, isolated from its potential allies, had been decisively defeated. McKinley asked Day to make a lateral transfer from the State Department to become the United States' chief negotiator in the peace talks in Paris that would formally end the war. Partly owing to Day's stern advocacy, beaten Spain was forced to give up Cuba, the Philippine Islands, and Puerto Rico.

After the ratification of the Treaty of Paris, in early 1899 McKinley rewarded his old friend with a seat on the Sixth Circuit of the federal appellate court. Still only 49, Day was young for an appellate judge. Legal observers began talking about Day as a possible future justice of the Supreme Court.

Judge Day's chances for this high juridical honor appeared to drop sharply in 1901, when his friend and mentor, President McKinley, was shot and fatally wounded by an assassin. But only a year and a half later in early 1903, a judge on the supreme bench, George Shiras, Jr. stepped down. The new President, Theodore Roosevelt, responded swiftly. Legend has it that at a Washington, D.C. banquet attended by both men, Roosevelt offered a surprise toast to "Justice William R. Day of the United States Supreme Court." A friendly Senate confirmed Day quickly, and Judge Day did indeed become Justice Day.

In his 19 years on the nation's highest court, Day is credited with writing 439 separate opinions. In modern times, Supreme Court opinions are often written by the justices' private clerks and only countersigned by the justices, but from 1903 through 1922, it was the custom for the justices to write their own opinions.

Day's juridical record shows that he became a leader in what we now call intellectual property law. In one of the more significant decisions of Supreme Court history, "Bobbs-Merrill v. Straus," Justice Day in 1908 wrote for a unanimous Court a decision that broke what intellectual property holders thought should be an entail, a continuing right by the creator of a copyrighted work to control how the property is transferred to a second and third property.

Bobbs-Merrill, a publishing firm, had set a price for a book on their publishing list. In order to protect their profits, they asserted that nobody should be allowed to resell the same book to a retail purchaser at a discount. A large retailing firm disagreed, took the case to the Supreme Court, and won. Justice Day's 1908 decision was the foundation of what is now called the "first-sale doctrine," the legal principle that holds that the creator of the intellectual property can only control the first sales transaction of the property and not the second sale or any subsequent sale.

Five years after "Bobbs- Merrill," Justice Day wrote a similar decision extending the same principle, the first-sale doctrine, from copyrights to patents. The first-sale doctrine became one of the unseen cornerstones behind what would become an endless series of acts performed by Americans as a facet of everyday life. Whenever you buy a used book in a book sale, or "burn" a piece of music from a friend (assuming that the friend paid for it), or buy or sell something in a humble garage sale that has or once had a patent on it, you are utilizing one of the fundamental freedoms that William R. Day believed in and added to the case law of the United States.

Without Justice Day's firstsale doctrine, the Internet would be impossible to operate in the form that we know today. The world's largest online retailer of books and related goods would not be authorized to offer the discounts that it routinely posts on the goods it offers for sale, unless it were to obtain permission slips from tens of thousands of publishers and retailers to do so. A similar, well-known firm that specializes in Internet auctions would also find its business model impossible to oper- ate.

After more than 19 years of service on the Nation's highest court, Justice Day stepped down from his duties in late 1922. The retired jurist may have hoped for many happy years of quiet retirement, but this was not to be. Less than eight months after his resignation, Day died in July 1923 at his summer home in the Annex.

Day's seat on the federal Supreme Court had passed into other hands. After turning over about half a dozen times, in 2009 it is currently filled by Justice Clarence Thomas. Another seat on the nation's highest bench may soon be filled by federal appellate judge Sonia Sotomayor. Judge Sotomayor's parents came to the mainland United States from Puerto Rico, the island in the Caribbean that became a U.S. possession in the 1898 Treaty of Paris, signed on behalf of the United States by future Justice William R. Day.

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