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Great Wisconsin judges: Edward Fairchild

Written by Joseph A. Ranney, Attorney at Law
Phone: (608) 283-5612

Some Wisconsin judges have become known as great leaders; others have become famous as "great dissenters." Before the Civil War Chief Justice Luther Dixon of Portage was a lonely voice of support for the federal government at a time when many Wisconsinites regarded it as the tool of slaveholders. During the Progressive era, Justice Roujet Marshall of Chippewa Falls was a voice of conservative caution while many of his colleagues looked for ways to uphold reform laws. During the 1930s and 1940s the role of the "great dissenter" fell to Justice Edward Fairchild of Milwaukee.

Fairchild was born in Pennsylvania in 1872. After completing his education in 1894 he moved to Milwaukee to begin his legal career. He rose rapidly: after serving as an assistant district attorney, he was elected to the Legislature in 1906 as a conservative Republican. Three years later played a leading role in the development of Wisconsin's workers' compensation law.

In 1915 Fairchild was appointed a circuit judge, and in 1930 he was promoted to the Supreme Court. Marvin Rosenberry of Wausau was chief justice when Fairchild joined the court. Rosenberry had also been a conservative but after becoming a justice, he quickly concluded that the law should be adapted to accommodate social change. He led the way in upholding the state's grant of vast powers to administrative agencies and other Progressive reforms.

Fairchild had great respect for Rosenberry and joined him in upholding many reform laws. But in cases where Fairchild felt the court went too far he was not shy about saying so. During the 1930s the Legislature passed a series of laws greatly expanding the rights of unions; the court interpreted the laws so liberally that Fairchild was moved to protest.

In the 1936 case of American Furniture v. Teamsters Local 200, the Supreme Court held workers in one factory department could picket in order to force their employer to bring all factory workers into a union. Fairchild argued this could force workers in other departments to unionize even if they didn't want to. Later that year, in the case of Senn v. Tile Layers Protective Union, the Court held a union could picket to have all factory workers unionize even where the employer was a worker himself and could not join the union. Fairchild again protested: this would force the employer out of his own business. However, his objections were in vain.

Fairchild's most famous dissent came in 1938. As part of Wisconsin's "little New Deal," the Legislature passed a controversial law authorizing the state to promote publicly owned power companies in competition with private companies. The Supreme Court upheld the law by a 4-3 vote. The majority was troubled by the law but concluded that as long as the state promoted public companies in general and not any specific company, the law was valid. Fairchild argued that government should not compete with private business. He protested:

"How is it possible to encourage the formation of power districts in general without throwing the weight of the taxpayers' money into the scales [in favor of public utilities in specific cases]?"

Fairchild's dissents were in vain, but like the "great dissenters" before him he forced the majority to think carefully about what it was doing. In 1950, Fairchild became chief justice upon Rosenberry's retirement. He continued to serve until his own retirement in 1957. He then practiced law until his death in 1965 at age 93.

Fairchild's son, Thomas E. Fairchild (1912- ), has also had a distinguished political and judicial career. He was a leader of the Democratic party's renaissance in Wisconsin in the late 1940s. He served as Wisconsin's attorney general (1948-51); he ran unsuccessfully against Joseph McCarthy for U.S. Senate in 1952, and in 1957 he succeeded his father on the Supreme Court. In 1966 President Lyndon Johnson appointed him to the federal circuit court of appeals in Chicago, where he continues to serve today as a senior judge.

Note: The views expressed in this article are the author's alone. Distributed as a public service by the Wisconsin Supreme Court in honor of the state's sesquicentennial.

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