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

by James Macgregor Burns

  President Grant still needed those greenbacks. Luckily for him, there happened to be two openings on the Supreme Court. To block the hated Andrew Johnson from appointing a successor to Justice Catron after his death in 1865, congressional Republicans had reduced the court’s membership to seven. No sooner was Grant in office than Congress restored the old complement of nine, giving the new president one free pick, for what had been Catron’s seat. The other seat was Justice Grier’s, who had decided to retire, though not before voting with Chase’s majority in Hepburn. On the very day that decision was delivered, the president nominated William Strong and Joseph Bradley, the two railroad lawyers. They were speedily confirmed, and two days after Justice Bradley was seated in late March 1870, the government petitioned urgently for a rehearing of Hepburn ’s constitutional issues. That almost unprecedented request was granted, though not without a furious battle in the court’s conference room, according to Justice Miller, a Hepburn dissenter. As he reported to his brother-in-law, “The Chief Justice has resorted to all the stratagems of the lowest political trickster” to prevent the new cases from being heard. The “excitement” among the justices had been “fearful.”

  In its next term, on March 1, 1871, the Supreme Court overturned Hepburn by a 5-4 margin. The decisive votes to constitutionalize greenbacks in the Legal Tender Cases were cast by the two new justices, and Justice Strong spoke for the new majority. Never before had the court so quickly reversed itself so completely. A howl of indignation rose from Wall Street and other financial centers. There were charges that the new justices had promised support of paper money in exchange for their appointments. The New York World described the decision as “a base compliance with Executive instructions by creatures of the President placed upon the Bench to carry out his instructions.” Democrats echoed the accusation in the 1872 campaign, portraying the justices as tools of Grant, who himself was the tool of corporate power. The president’s defenders dismissed the notion. Surely the guileless, good-hearted, straight-shooting Grant would never have made such a foul bargain. The president himself had no public comment on the matter.

  The question simmered for decades until it was revealed, in the diary of Secretary of State Hamilton Fish, that Grant a few years later had indeed admitted to Fish “that although he required no declaration from Judges Strong and Bradley on the constitutionality of the Legal Tender Act, he knew Judge Strong had on the bench in Pennsylvania given a decision sustaining its constitutionality, and he had reason to believe Judge Bradley’s opinion tended in the same direction, that at the time he felt it important that the constitutionality of the law should be sustained, and while he would do nothing to exact anything like a pledge or expression of opinion from the parties he might appoint to the bench, he had desired that the constitutionality should be sustained by the Supreme Court.”

  So Grant, by his own admission, had packed the court with justices who would give him the decision he wanted in an immediate case, but he did not negotiate or extract a promise from them. None was needed. As the historian Charles Fairman wrote years later: the president regarded Hepburn as “profoundly wrong, and nominated judges whose opinions, according to the best information available, he approved. Would anyone in his place have done otherwise? ”

  LEGAL TENDER wasan early and notorious example of the postwar Supreme Court’s intervention in “political economy”—and of a president’s use of his appointing power on behalf of powerful economic interests. This would prove to be not an exception in the Gilded Age but the rule. Indeed, observing the high bench in the decades after the war, Americans might have mused that corporation heads packed the court as much as presidents. Exerting their overpowering influence on the White House and Congress, an astonishing number of railroads and other industries put their people on the Supreme Court. All of Grant’s appointees—including the Legal Tender duo and Chief Justice Waite—were railroad attorneys. Railroads were the most dynamic, visible, and controversial sector of the economy, and the railroad frenzy after the Civil War raised countless human and social as well as legal questions. In one year, 1889, twenty thousand railway workers were killed or injured. Simply in laying out new routes, the railroad corporations could bypass and isolate one city or town, create or enrich another. A torrent of disputes emerged from charges of unfair competition, profiteering, monopolistic control, tax issues—especially from the attempts of states to regulate the railways. But what part of the rail empire would the Supreme Court respond to—the executives and stockholders, or the railroad workers and passengers and the villages, towns, and cities that felt its impact?

  Few personified the judicial politics of the time better than Stanley Matthews, an Ohio antislavery Democrat who had turned Republican on the advent of the Civil War. He was a railroad lawyer and stout defender of free enterprise. A fellow student of Rutherford B. Hayes at Kenyon College, Matthews was his friend’s representative in the bargaining over Reconstruction that secured the presidency for Hayes. Matthews got his reward when Hayes, in the last days of his presidency early in 1881, chose him to fill retiring Justice Swayne’s place on the court. The nomination blew up such a storm, especially from vengeful Tilden supporters and those who saw Matthews as a railroad mouthpiece, that the Senate Judiciary Committee refused to act as Hayes’s term ended. But James Garfield, the new president, salvaged the nomination, as he had promised Hayes, and after a hard battle, Matthews was confirmed by a single vote. His eight years on the court were all anticlimax. Justice Matthews left no distinctive mark, but simply typified the postwar Republican devotion to laissez faire—and the ubiquity of railroad power.

  THE POST WAR Republican Congress had created the Fourteenth Amendment to guarantee the rights of newly liberated, still beleaguered and impoverished African Americans against state repression in the South, but within a few years, the amendment would instead become a potent weapon for the rich and powerful, and a brutal crushing of the rights and hopes of the black and the poor.

  While the majority’s decision in the 1873 Slaughterhouse Cases would severely restrict the national government’s power to protect the civil rights and liberties of freed slaves and other citizens with its narrow construction of federal rights binding upon the states, it was the ideology of a dissenter, Justice Stephen J. Field, once it became accepted as the dogma of the Supreme Court, that would most threaten the ability of government to control the explosive forces of industrial capitalism.

  Unlike the court’s majority, Field saw no distinction between national and state citizenship. A citizen of a state was simply a citizen of the United States living in that state. But rather than vindicate its framers’ vision of the Fourteenth Amendment as a broad federal guarantee of Americans’ political and civil equality, Field interpreted it in his Slaughterhouse dissent as securing what he termed “the distinguishing privilege of citizens of the United States”—nearly boundless economic liberty. Invoking the Declaration of Independence and Adam Smith’s Wealth of Nations, Field condemned Louisiana’s licensing of the slaughterhouse monopoly as an invasion on the liberty of New Orleans butchers “to acquire property and pursue happiness”—“the fundamental idea upon which our institutions rest, and unless adhered to in the legislation of the country our government will be a republic only in name.” This was Field’s first great blow—and for the moment, a minority view—on behalf of private property and liberty of contract, one that eventually would severely restrict government in its power to regulate enterprise. Who was this justice so ideologically addicted to laissez faire?

  Field was an oddment on the Supreme Court, the first justice nominated by a president of the opposing party, a Buchanan Democrat but loyal Unionist chosen by Lincoln in 1863 to represent a new circuit centered on the booming state of California. Years earlier, Field had journeyed the long way to the West Coast across the Panama Isthmus and by sail up to San Francisco. Unlike other “Forty-niners,” he planned to mine not gold but the men mining gold, and he became remarkably successful
as a land speculator. Always preaching the values of liberty and individualism, he became chief justice of the state’s highest court until Lincoln brought him to Washington. People wondered about the source of Field’s fiery commitment to individual enterprise. Did it emerge from his family’s stern religiosity, rooted in Puritanism, back in rural western Massachusetts, or from Mark Hopkins’s libertarian teachings and moralizing admiration for men of property and wealth at Williams College, where Field graduated in 1837, or simply from the jousting ground of free enterprise in California? Whatever its source, Field’s laissez-faire absolutism in his Slaughterhouse dissent would in the 1880s make all-encompassing property rights the supreme value of the Constitution, transforming the Fourteenth Amendment into a charter for capitalists, at the expense of millions of American workers and farmers.

  Farmers faced growing burdens in the Gilded Age: rising production and falling prices, higher costs for land, seed, machinery and, above all, for credit. They paid local taxes to finance bonds issued to build rail lines and in return railroads charged them monopoly prices for grain transport and storage. Rebellious farmers began to mobilize, especially in the prairie and western states where in 1870 they launched the Grange movement to protect their common interests. In some towns Grangers allied with merchants against the railroads’ price gouging. State governments began to respond to the pressure with a series of Granger laws to regulate rates. In 1873, the Illinois legislature approved a measure that fixed maximum rates for grain storage in Chicago, where produce carried in rail cars was stored in immense elevators. The owners of the storage company appealed to the Supreme Court, complaining that they had been deprived of their liberty to engage in business by an arbitrary state regulation and without due process of law.

  In keeping with its narrow interpretation of the Fourteenth Amendment and its almost antebellum idea of states’ rights, the Waite Court’s majority had proved sympathetic to economic regulation by the states. In Munn v. Illinois, in 1876, the Supreme Court voted to uphold the Illinois statute as a “reasonable” regulation of a “virtual monopoly.” The chief justice, a former railroad attorney, reached back two centuries to the great English jurist Lord Matthew Hale, and wrote simply that when “private property is devoted to a public use, it is subject to public regulation.” Waite was not ready to accept the idea of “substantive” due process—the testing of a law’s impact to judge whether it violated rights protected by the Fourteenth Amendment—for instance, as the railroads insisted, their property rights in the form of profits—in contrast to “procedural” due process, which tested laws on the much narrower ground of whether they had been enacted by proper procedures. The Illinois legislature had acted within its discretion and for the general welfare, the court found; whether those rates were fair was not a judical question. If the railroads objected, the chief justice wrote, the remedy was at the polls, not in the courts.

  In an impassioned dissent, Field charged that the “legislation in question is nothing less than a bold assertion of absolute power by the State to control at its discretion the property and business of the citizen, and fix the compensation he shall receive.” For Field, the court had opened the ultimate chamber of horrors by holding that private property could be regulated by states. “If this be sound law,” he thundered, “all property and all business in the State are held at the mercy of a majority of its legislature.”

  The issue was liberty—individual liberty. Field had his priorities—liberty of contract, free enterprise, protection from state interference, liberty for entrepreneurs and investors. To the Grangers and other populists, however, liberty—for farmers, consumers, railroad workers—might require protection from entrepreneurs and investors.

  Munn struck a blow for them. But Field had taken a narrow line that would challenge both national and state reform efforts for years to come.

  THE REPUBLICAN PARTY had its roots in the antebellum “free labor” movement, which not only campaigned against slave labor but championed equal opportunity and social mobility for all workers. Lincoln himself in 1859 had contended that “labor is prior to, and independent of capital.” In fact, he said, “capital could never have existed without labor” and therefore “labor is the superior—greatly the superior—of capital.” Several early Supreme Court verdicts suggested that, at least on economic issues, if not on those of civil rights, postwar Republicanism might take a moderately progressive and reformist course. The court’s reversal on greenbacks was a blow to hard-money conservatives and a relief not only to entrepreneurs and speculators but to farmers and other small debtors. Slaughterhouse, while it distorted the Fourteenth Amendment, at least recognized government’s power to regulate the economy in the public interest—in this case to protect public health by providing for the “grand slaughterhouse.”

  As for Munn, in a memorandum to guide Waite in drafting the opinion, Justice Bradley expressed, albeit in terms more forceful than Waite would use, the court majority’s temper: “Unrestricted monopolies as to those things which the public must have and use, are a canker in any society, and have ever been the occasion of civil convulsions and revolutions. A people disposed for freedom will not tolerate this kind of oppression at the hands of private corporations or powerful citizens.” Bradley knew exactly whereof he spoke—he had advised just such monopolies and powerful citizens as his clients in private practice. For all of his hostility to Reconstruction, Justice Bradley was a rare justice who sought to strike a balance between national power—objecting to the Slaughterhouse construction of dual citizenship with his view that “citizenship of the United States is the primary citizenship in this country,” with state citizenship “secondary and derivative”—and the power of states to regulate railroads and other corporations.

  Bradley did not always disappoint his former corporate clients but he stood out as the court’s spate of liberalism faded. By the 1880s, it was giving way to a conservatism that grew more and more extreme in its hostility to the halting efforts by the popular branches of government to regulate the economy. That conservative ideology would dominate the court not only for a decade or two but well into the next century. Crucial in this long stalemate was the role of political parties. Not only did conservative Republicans win presidential election after election for almost half a century after the Civil War, but the two Democratic victories, by the conservative Grover Cleveland, did not offer voters a meaningful alternative approach to the fundamental economic and social problems plaguing millions of Americans.

  This failure lay in political leadership embedded in ineluctable historical circumstances. Reconstruction had left the Democratic party more dependent than ever on the South, embittered by defeat and dominated by leaders almost as conservative or reactionary as in prewar days. Race, not economics, controlled Southern politics. Economic reform, especially if it had Northern origins, was seen as a threat to the racial order. No Democratic candidate—not even Cleveland with his political skills—could win a presidential election without the South, nor could he carry the South without deference to states’ rights and the continued denial of civil rights to blacks. Inevitably, as the two major parties clung to the right—the Republicans on economic policy and the Democrats on the race issue—a huge gap opened on the left.

  In the 1870s, as the Granger movement faltered, farm and labor leaders tried to fill the gap with a wide range of organizations. The Greenback party defended debt-ridden farmers against Wall Street demands for hard money and fought Supreme Court rulings that upheld vast grants of public lands to railroad, timber, and mining interests. The Farmers’ Alliance campaigned for government control of the “oppressive and tyrannical transportation system” created by the railroads. “Taxpayers Associations” protested Supreme Court vetoes of laws that would have relieved cities and towns of railroad bond obligations obtained by fraud and corruption. After years with little to show for their efforts, reform leaders concluded that they must be more unified. They laid plans for a grand third-party
effort, variously called the People’s or Populist party. Its 1892 platform demanded “that the power of government—in other words, of the people—should be expanded . . . to the end that oppression, injustice and poverty, shall eventually cease in the land.”

  The Populists had an ambitious agenda of cheap currency, the abolition of national banks, government ownership of transport, a graduated income tax, and shorter workdays in industry, but they understood that the ultimate enemy of reform was “our Imperial Supreme Court,” as it was called by Iowan James B. Weaver, a former congressman and the Greenback presidential candidate back in 1880. By usurping the “supreme power in the State,” Weaver wrote in 1892, the court “dethrones the people who should be Sovereign and enthrones an oligarchy.” The court, he insisted, must be held to its proper sphere and “brought back to a sense of its accountability to the people.” But that would mean first overcoming the great Democratic-Republican duopoly of power.

  With Weaver leading the charge at the top of the ticket, Populist hopes ran high in 1892. Running strongly in the West, the Populists became the first third party since the Civil War to win seats in the electoral college. But, overall, the outcome was devastating as the party took less than 10 percent of the national vote. Most disappointing were the results in the South, where Weaver’s background as a Union officer and supporter of Reconstruction drew a furious attack. The Populists campaigned hard for African-American support but were foiled by Democratic leaders who saw to it that blacks were led to vote in gangs, by the cartload, “marched to the polls by beat of drum.”