Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court

by James Macgregor Burns

  THOUGH CLOSELY IDENTIFIED with Abraham Lincoln and Republican Reconstruction, Grant had run on a platform of peace and reconciliation, and when it came time to replace the remnants of the Taney Supreme Court with Republican loyalists, the views of his nominees on the new constitutional amendments had little weight with him. It was not that the president ignored the duty and pleasure of court nominations—in fact, he spent countless hours discussing possibilities with Republican politicos. His first nomination, of his own attorney general, Ebenezer R. Hoar, seemed respectable, but Republican radicals deemed Hoar too moderate for having opposed Johnson’s impeachment, and he was voted down in the Senate. The radicals pressured Grant to name Lincoln’s secretary of war, Edwin Stanton, who was confirmed by a lopsided Senate vote just before Christmas 1869—and died four days later. By then Justice Grier, in poor physical and mental health, had finally been persuaded by his colleagues to retire, and Grant had two seats to fill. His choice, a pair of railroad lawyers, William Strong and Joseph P. Bradley, was expedient. He knew that they would take the right position on the issue of legal tender that was roiling the country—and so they did—but he evidently didn’t inquire into their views on race and Reconstruction. Of Grant’s first three appointees, only Ward Hunt, another railroad lawyer, would provide an occasional dissenting voice on behalf of black rights.

  Grant would have one more opportunity when Salmon P. Chase, the chief justice who had been named by Lincoln as Taney’s successor in 1864, died in May 1873, two months after Grant began his second term. The president could now offer the most glittering prize in American politics. Alas, the opportunity turned into a nightmare for the former general. He first offered the post to Republican New York senator Roscoe Conkling, telling his old friend that the appointment would be “entirely fitting.” In fact, it was entirely unfitting to liberals and reformers who looked on Conkling as a party boss and master spoilsman. The senator wisely declined the prize. Grant offered the job to his secretary of state, Hamilton Fish, who preferred his current eminence. The president then considered another close friend, Caleb Cushing, a distinguished Masssachusetts attorney, but Cushing, at seventy-three, seemed too old for a job that Marshall had taken in his midforties and Taney in his midfifties. Moreover, Cushing had been a prominent pro-Southern Democrat before a late conversion to the Republican party. Grant turned next to his attorney general since late 1871, George Williams, a man widely regarded as incompetent, an embarrassment to the bar. His nomination, in December 1873, was shot down when the press revealed his misuse of Justice Department funds, including the hiring by Mrs. Williams, at government expense, of a coach and footmen. In desperation, Grant turned back to Cushing, but when a letter surfaced from Cushing to the traitorous Jefferson Davis recommending an old friend for a job with the Confederacy, the nomination was hastily withdrawn. After Conkling rejected another overture, Grant finally, in January 1874, almost nine months after Chase’s death, found his man, Morrison R. Waite.

  And who was Morrison Waite? At least, wrote diarist Gideon Welles, we should be thankful that Grant hadn’t chosen an old acquaintance of his, perhaps a stage driver or bartender. A more measured commentator estimated that Waite stood in the front ranks of the army of second-class lawyers in the country. Waite himself confessed that his new eminence filled him with “fear and trembling.” Newspapers checked their archives—Connecticut-born, schooled at Yale, moved to Ohio, and practiced law in Toledo. Railroad law, naturally, though on a small-town scale. He had been a Whig until helping to organize the state’s Republican party in 1856. He was always a strong party man.

  But the kind of party man he was—a Lincoln Republican who would take judicial leadership for African-American liberation, or a Grant Republican, intent mainly on protecting railroad and other corporate interests—remained to be seen.

  AT THE HEART of both the civil rights and economic issues that would face the Supreme Court in the postwar decades lay the historic conflict over national versus state power. Taney had helped bring on the Civil War with his rabid support of state—that is, Southern—control of slavery. Republican voters and Lincoln’s army had established national authority to protect freedmen’s rights, especially through the Reconstruction Amendments. But the interpretation of these amendments—the extent of the rights and liberties they guaranteed and the reach of federal power to enforce them—became the province of the Supreme Court.

  Under Chief Justice Chase, a leading antebellum abolitionist, the court had, despite Republican fears, shown a strategic deference to congressional Reconstruction in the late 1860s, allowing the legislature wide latitude in its campaign to remake the South and secure black rights. But as the nation began a retreat from Reconstruction in the 1870s, the Supreme Court fell into step.

  The pacesetter was an 1873 case that had nothing directly to do with black rights. A group of New Orleans butchers—all white men—had brought suit against a state-chartered monopoly of slaughterhouses. Louisiana had decided to centralize the city’s chaotic system of private stockyards in a “grand slaughterhouse” to better regulate an unsanitary trade. Butchers objected that under the law they were forced to submit to the monopoly, paying the fees its investors demanded, or go out of business. Their appeal rested on the Fourteenth Amendment. Louisiana, they said, had infringed their “privileges and immunities” as United States citizens, and by favoring the monopoly, the state had deprived them of “property” in their livelihoods without “due process” and denied them “equal protection of the laws.”

  In its first great test, the sweeping promise of the Fourteenth Amendment for liberty and equality was reduced to little more than empty words. Justice Samuel Miller, the Lincoln man who wrote for the court’s majority in the Slaughterhouse Cases, acknowledged that the Civil War had “given great force to the argument” for a more powerful national government that would protect the rights of all Americans—and then he pushed that argument aside. The Supreme Court, he wrote, must maintain “the balance between State and Federal power.” Rejecting the Fourteenth Amendment’s clear intent to nationalize citizenship, Miller reinstated the two classes of citizenship—state and national—that had become a key element in Taney’s denial to Dred Scott of any “rights which the white man was bound to respect.” The rights Miller attached to national citizenship were meager—the right of access to Washington, D.C., and to coastal ports and navigable rivers, as well as the rights to habeas corpus and to petition and assembly. Congress could impose no other constitutional “privileges and immunities” on the states; it could not bring within its power “the entire domain of civil rights heretofore belonging exclusively to the States.” Those rights were not “embraced” by the Fourteenth Amendment. They must, Miller wrote, “rest for their security and protection where they have heretofore rested”—on the states.

  For white New Orleans butchers, this meant that their status as United States citizens did not protect them from Louisiana’s regulation of their trade. But what did it mean for Reconstruction, which was all about congressional interference in the states, not least the garrisoning of several thousand troops in the South to enforce its policies? Even more, what did it mean for the freed slaves of the South? Though Miller, who supported those Reconstruction policies, noted that the Fourteenth Amendment had been framed for “the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised their unlimited dominion over him,” his deconstruction of the amendment would seem to leave the rights of freed slaves to the mercies precisely of those who had formerly dominated them.

  One day before the court issued its Slaughterhouse ruling, on an Easter Sunday in April 1873, came the makings of the case that would directly test the Supreme Court’s interpretation of the constitutional status of black rights. On that Easter Sunday, the black community in a Louisiana county seat suffered what historian Eric Foner called “the bloodiest single act of carnage in all of Reconstruction,” the Colfax massacre. In a bitter electi
on dispute between black Republicans and white Democrats, blacks had been deputized to safeguard the courthouse in Colfax against a rumored white takeover. A mob of local whites used a cannon to blast open the courthouse and set it ablaze. Scores of fleeing blacks were mowed down. Amid outrage across the nation—and predictable inaction by state and local authorities—ninety-six white men were indicted in federal court for violating the Ku Klux Klan Act, charged with conspiring to deny black men their constitutional rights. Of the ninety-six, only nine stood trial and only three were convicted. One of the three was William Cruikshank, and it was his name that would be attached to the epochal case presented to the Waite Court three years after the massacre.

  The chief justice wrote for a unanimous court. As he searched the Klan Act and the indictments for legal defects, Waite’s opinion turned into a case study of ignoring all the human aspects of the matter, seizing on dubious precedents, and, most significantly, denying the African-American victims the federal guarantees that the Reconstruction Amendments were supposed to have secured them.

  After reaffirming the differential citizenship, state and national, the court had resurrected in Slaughterhouse, Waite went on, as historian Peter Irons wrote, to slam “every legal door in the face of federal officials who tried—and ultimately failed—to protect southern blacks against intimidation and violence.” Conspiracy to murder, the chief justice held, could be no federal crime. It was “the very highest duty of the States,” Waite wrote, to protect their citizens, neglecting the fact that Congress had passed the enforcement acts because states had been notoriously unwilling to prosecute whites for crimes against blacks, as the aftermath of the Colfax massacre itself had proved. But “sovereignty, for this purpose,” Waite insisted, “rests alone with the States.”

  Then the chief justice discovered another way that the Fourteenth Amendment could not be applied. The amendment barred “any State” from depriving any person of life, liberty, or property, and inasmuch as Cruikshank et al. were not states, the federal government was powerless to enforce those rights. Finally, since the violence had occurred during an election dispute, prosecutors had brought charges under the Fifteenth Amendment, accusing the defendants of hindering the victims’ exercise of their right to vote. But Waite pointed out that the amendment condemned only racial discrimination, and the chief justice could only “suspect that race was the cause of the hostility. . . .”

  With rulings like Cruikshank, with Democrats surging at the polls, and their own party eagerly embracing the new hustling spirit of industrialism, radical Republicans were fighting a rearguard battle. Old abolitionists like William Lloyd Garrison and Wendell Phillips were “not exactly extinct from American politics,” the New York Times wrote in 1876, “but they represent ideas in regard to the South which the majority of the Republican Party have outgrown.” In a final thrust, before they gave up control of the House to Democrats in 1875, Republicans passed a civil rights act that reached for social equality. The measure barred racial discrimination from “inns, public conveyances on land or water, theaters, and other places of public amusement.” During the debate over the bill, a black congressman from Mississippi, John Lynch, described how, traveling through the South to Washington, “I am treated, not as an American citizen, but as a brute.” But the radicals were too weak to push through a ban on school segregation. Nor did the act provide for federal enforcement. Instead, individuals would have to sue for their rights in federal court.

  Still, five determined souls fought through the judicial system to bring their cases of discrimination to the Supreme Court in 1883. That august tribunal—with one dissenter—responded with a brusque dismissal of their claims and a patronizing lecture. In the Civil Rights Cases, the court spoke in the voice of Joseph Bradley, who had confided to his journal his view that “depriving white people of the right of choosing their own company would be to introduce another kind of slavery.” To save whites from that fate, Bradley confirmed the Cruikshank finding that only actions by states were forbidden by the Fourteenth Amendment, not the acts of innkeepers, theater owners, or coach drivers. Nor was the Thirteenth Amendment relevant. That pertained “not to distinctions of race, or class, or color, but to slavery,” and “it would be running the slavery argument into the ground,” he wrote, a note of exasperation in the words, “to make it apply to every act of discrimination.” Having cut the constitutional ground out from under it, Bradley ruled that the 1875 Civil Rights Act “must necessarily be declared void.”

  But before concluding, Bradley turned to address black citizens, to tell them bluntly that it was about time for them to get over slavery. “When a man has emerged from slavery,” he opined, “and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be a special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men’s rights are protected.” Speaking for a court that, packed though it was with Republicans, had repeatedly ignored the clear intent of Congress, nullifying or distorting its “beneficent legislation,” Bradley could not have made it plainer that any hope black Americans might still have harbored that the Supreme Court would put its awesome power behind the principles and policies of Reconstruction was vain.

  A FEW YEARS EARLIER , Justice Bradley had in fact played a central role in the political burial of Reconstruction. The 1876 election had ended in a bitter stalemate. Neither the Democratic candidate, New York governor Samuel Tilden, nor the Republican, Ohio governor Rutherford Hayes, had the 185 electoral votes needed to win, as the outcome in three Southern states, where there had been widespread intimidation of black voters, was in dispute. Amid feverish controversy, Congress invented an “electoral commission” to award the disputed electors. It was made up of ten congressmen, divided equally between the parties, and five Supreme Court justices. The propriety of members of the Supreme Court involving themselves in a political—and furiously partisan—conflict was apparently not discussed.

  The justices lent a noble air to an extraordinarily tawdry business rife with horse-trading and double-dealing, even as they were expected to vote along party lines. Congress named four of the justices—two Democrats, two Republicans—and those four were to choose the fifth. That swing voter was Justice David Davis, Lincoln’s old Republican ally and campaign manager who had become an “independent” in politics, though he was thought to favor Democrat Tilden. But even before the commission could convene, the Democratic legislature in Illinois elected Davis to the Senate. Republicans charged that this was the payoff for his support of Tilden, but if so, it came prematurely. Davis resigned from the commission and Justice Bradley, Republican loyalist, took his place. Bradley cast the decisive vote for Hayes.

  But the controversy didn’t end there. Tilden supporters threatened to block a final count of electoral votes. After intense negotiations, a deal was struck, less than a week before the new president, still undetermined, was to be inaugurated. In return for the presidency, Hayes would withdraw all remaining federal troops from the South and stop enforcing the civil rights laws. “The negro,” The Nation prophesied, “will disappear from the field of national politics. Henceforth, the nation, as a nation, will have nothing more to do with him.” Reconstruction was over.

  CHAPTER SIX

  A Court for the Gilded Age

  AS AFRICAN AMERICANS were erased from national politics in the tragedy of Reconstruction, entrepreneurs and corporations took their place as the recipients of “beneficent legislation” from the political branches of the federal government. They received even more beneficent decisions from the United States Supreme Court. The long era of Republican domination of the presidency after the Civil War coincided with an unprecedented economic expansion that was closely abetted by Republican appointments to the Supreme Court. Indeed, this collaboration among capitalists, politicians, and j
ustices was a defining feature of the Gilded Age, as captured by an episode that took place during the Grant administration.

  In 1862, Congress had passed the Legal Tender Act, authorizing the government to print paper currency called greenbacks. This cheap money was especially loathed by bankers, who favored a stable currency backed with gold. But a depreciating currency was much favored by anyone with debts to pay, including a government that needed to finance total war.

  The wartime court had managed to duck the question of the act’s constitutionality, but in February 1870, in Hepburn v. Griswold, the Supreme Court struck down the Legal Tender Act by a 5-3 vote. Because the Constitution empowered Congress to provide for a national currency without limiting it to money backed with gold, the court’s ruling against greenbacks applied only to debts incurred before the act’s passage. Those who had borrowed hard money could not discharge their debts with paper. Retroactive operation of the law, the court held, would impair the contractual obligations of borrowers—though the words of the Constitution forbade only the states, not the federal government, from doing that—while it deprived creditors of property, under a novel reading of the Fifth Amendment. Astonishingly, Chief Justice Chase, who as Lincoln’s treasury secretary had promoted the act as a wartime necessity, himself authored the tortured opinion that declared it unconstitutional.

  That opinion struck one young legal scholar and editor, Oliver Wendell Holmes, Jr., as presenting “the curious spectacle of the Supreme Court reversing the determination of Congress on a point of political economy.” If the ruling stood, all prewar debt would have to be paid off in gold. Borrowers, and especially railroad entrepreneurs who had taken on massive debt to finance expansion, faced disaster.