Maureen Milliken’s recent “Kennebec Tales column: Will we see real Augusta on TV?,” which disparaged my ancestor, Melville Weston Fuller, deserves a response.

Fuller, who was born in Augusta, was the chief justice of the U.S. Supreme Court from 1888 to 1910.

Milliken rightly observes that Fuller joined in the majority opinion in Plessy v. Ferguson, an insensitive and indefensible decision that established the odious “separate but equal” doctrine condemning African-Americans to second-class citizenship until its courageous reversal by the Warren court in Brown v. Board of Education.

It is unfair for Milliken, however, to belittle Fuller’s entire career on the basis of Plessy, any more than it is to knock Terry Francona, who served the Red Sox long and well, on the basis of the one season during which he lost control of the locker room.

Let us examine Fuller’s record in other civil rights cases. In Fong Yue Ting v. U.S., Fuller vigorously defended the rights of Chinese laborers who had been imported to work in the United States. The Court by a 6-3 vote held that Congress had the absolute authority to expel aliens without cause.

Fuller, writing a separate dissent, argued that resident aliens enjoyed the protection of the Constitution and could not be deported without due process of law.

In Weems v. U.S., a case that originated in the Philippines, Fuller joined the majority opinion redefining the Eighth Amendment’s ban on “cruel and unusual punishments.” Weems was convicted of falsifying government documents and was sentenced to a heavy fine, 15 years in prison at hard labor in chains and was deprived of his civil liberties for life.

The opinion rejected an historical interpretation of the ban and held that it was “not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice.”

And, in Jones v. Meehan, Fuller joined a majority of the court in holding that the property rights of individual native Americans granted by treaty could not subsequently be divested by an act of Congress.

Jeffrey B. Morris, a noted legal scholar, has written in the Journal of the Supreme Court Historical Society that Fuller was a superb manager of the Court’s business.

“He was one of the best chairmen of the nine man-committee in history. A conciliator par excellence, Fuller could quell the acrimony when strong personalities were grappling with great issues. … His wit was a great solvent when tempers flared.

“Fuller originated the custom of requiring each Justice to greet and shake hands with every other Justice (at the beginning of case conferences), a tradition which continues to this day.”

The late Justice Felix Frankfurter opined, “…(T)here never was a better administrator than Fuller.” He recites an anecdote when Justice Oliver Wendell Holmes breached one of the rules of courtesy among the Justices.

“Justice Harlan, who was oratorical while Holmes was pithy, said something during one of the conferences that seemed to Holmes not ultimate wisdom. Each man speaks in order and there are no interruptions…. (Holmes interrupted Harlan) and sharply remarked, ‘That won’t wash.’… (T)he silver-haired gentle little Chief Justice said, “Well, I’m scrubbing away, I’m scrubbing away.” His “lubricating humor” (Frankfurter’s term) relieved the tension.

Although other decisions of the Fuller Court, like Plessy, have been overruled or legislated out of existence, no less an authority than Professor James W. Ely of Vanderbilt University School of Law, in his magisterial work, “The Chief Justiceship of Melville W. Fuller,” has stated: “(M)any of the issues addressed by Fuller and his colleagues have reemerged as part of the constitutional dialogue…

“(T)he Fuller Court made an enduring contribution to the constitutional system by establishing the Supreme Court as a key participant in American governance…

“(U)nder (Fuller’s) leadership the Supreme Court rejected a passive position and became increasingly activist… Seen in this light, the Fuller Court was a greater prophet than historians have generally recognized.”

Robert G. Fuller Jr. of Winthrop is a descendent of Melville Weston Fuller.

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