A People's History of the Supreme Court

by Peter Irons

  Confronted with wholesale slaughter across the South, federal officials did virtually nothing. Republicans in Congress tried to legislate against the intimidation of black voters. They first patched a gaping hole in the Fourteenth Amendment, which had not provided blacks with a federal guarantee of voting rights. Black suffrage had been the rallying cry of Radical Republicans, and Congress adopted the Fifteenth Amendment in February 1869. Like the Thirteenth Amendment abolishing slavery, this addition to the Constitution was short and simple in wording: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” Like the two earlier Reconstruction amendments, the Fifteenth provided that “Congress shall have power to enforce this article by appropriate legislation.” Final ratification came on February 3, 1870, a year marked by escalating violence against blacks who dared to exercise their new electoral rights.

  Congress utilized the powers granted by the Reconstruction amendments with three Enforcement Acts, passed in 1870 and 1871. The first, known as the Ku Klux Klan Act, was aimed at the hooded marauders who terrorized blacks across the South. The law provided that “if two or more persons shall band or conspire together, or go in disguise upon the public highway” with an intent to “injure, oppress, threaten, or intimidate any citizen” or to “hinder his free exercise of any right or privilege granted or secured to him by the constitution or laws of the United States,” violators could be prosecuted in federal court and imprisoned for ten years. The second law strengthened federal enforcement of election laws in large cities and was directed primarily at Democrats in northern cities who stuffed ballot boxes (an issue that returned in the 1960 presidential election of John F. Kennedy over Richard Nixon). The third act imposed criminal penalties on any person acting “under color of law” to deprive another person of constitutional rights. Congress intended with this law to give federal judges the power to punish local and state officials in the South—many of whom belonged to or collaborated with the Klan—who prevented blacks from voting or exercising other civil rights.

  These laws are still on the books, with minor amendments over the years, and were dusted off by federal officials in the 1960s to prosecute Klansmen and southern sheriffs who terrorized and arrested Freedom Riders, sit-in demonstrators, and organizers of voting drives in the Deep South. Even today, these laws form the backbone of federal enforcement of civil rights. During the Reconstruction era, however, the Supreme Court stripped the Enforcement Acts of any force and turned the clear intent of Congress into legislative impotence. The Court’s rejection of federal power to protect the former slaves reflected the nation’s growing lack of concern for their plight, from the president down to local officials charged with enforcing Reconstruction laws.

  The stream of indifference flowed directly from the White House. In 1868, Ulysses S. Grant ran for president on the Republican ticket and won a bare majority of the popular vote over Horatio Seymour, a former New York governor whose fellow Democrats saddled him with a platform that opposed Reconstruction. Grant, the hugely popular commander of the Union army, had wrested the Republican nomination from President Andrew Johnson, whose appeasement of the South turned Grant’s military victory into political surrender. Grant’s battlefield prowess, however, did not shield him from the crossfire on Capital Hill over Reconstruction. Johnson had failed to heed Lincoln’s call to “bind up the nation’s wounds,” and Grant proved equally lacking in leadership, presiding over an administration tarnished by scandal and corruption. Despite the constant drumbeat of criticism, Grant marched to a second term and spent eight years in the Oval Office.

  Grant could point to few accomplishments, but he did place four men on the Supreme Court, one short of a majority. His nominees, all of them corporation lawyers, looked like peas in a pod. Grant’s first chance to shape the Court came in 1870, a year after Congress restored the ninth seat it had removed in 1866. For this “bonus” seat, Grant first nominated his attorney general, Ebenezer Hoar, whose legal ability was unquestioned. But his opposition to Andrew Johnson’s impeachment, and other political stands, had created enemies, and the Senate rejected Hoar by a substantial margin. The Senate was still debating Hoar’s nomination when Justice Robert Grier announced his retirement in 1870, after twenty-four years on the Court. Four days after Hoar’s defeat, Grant sent two names to the Senate: William Strong of Pennsylvania and Joseph Bradley of New Jersey. Strong was a prominent railroad lawyer who had earlier been considered by President Lincoln for the post of Chief Justice. His nomination sailed through the Senate, and he then spent ten years in “relative obscurity” on the Court, voting to uphold the constitutional rights of corporations and to deny those of blacks.

  Bradley, like Strong a railroad lawyer, came to the Court with a record of hostility toward equal rights for blacks. After Congress passed the strong Civil Rights Act of 1875, giving blacks access to “public accommodations” like restaurants and theaters, Bradley wrote in his journal that depriving “white people of the right of choosing their own company would be to introduce another kind of slavery.” Unable to distinguish human bondage from restaurant discrimination, Bradley had no trouble in reading the Constitution to protect corporations from legislative regulation. He sat on the Court for almost twenty-two years and voted in almost every else against the claims of blacks, women, and criminal defendants. For Bradley, the Constitution was a charter for white men like him.

  The retirement of Justice Samuel Nelson in 1872, after almost three decades on the Court, gave President Grant a third nomination, which he offered to Ward Hunt of New York, a former corporation lawyer who served as chief judge of his state’s highest court. Like Strong and Bradley, Hunt displayed little concern for the rights of blacks, voting on the Court against the federal Reconstruction Enforcement Acts and state laws that prohibited racial segregation in public accommodations. Hunt served on the Court for nine years, but during the last four—after a paralytic stroke—he did not participate in any proceedings. He remained on the Court to collect his salary and resigned only when Congress passed a special pension bill for him. His tenure, one biographer wrote, was “generally undistinguished,” a description that fits all the justices Grant placed on the Court.

  These undistinguished men first confronted the Reconstruction amendments in 1873, deciding a case that had nothing to do with the rights of blacks. The Supreme Court’s decision in what were called the Slaughterhouse Cases, however, had a devastating impact on federal enforcement of civil rights. This case (which combined several suits for decision) dealt with a statute passed by the Louisiana. legislature in 1869. In creating the Crescent City Livestock Landing & Slaughterhouse (Company, the state established a monopoly that required all livestock dealers and butchers in the New Orleans area to conduct their business at the company’s facilities. The ostensible reason for this law was to protect the public’s health by reducing the stench and pollution from dumping animal waste into the Mississippi River. However genuine this motive, the monopoly’s backers had secured their charter through wholesale bribery. The Louisiana supreme court later ruled that its sponsors had doled out thousands of dollars “for the purpose of corrupting and improperly influencing members of the Legislature.”

  After the legislature paid its political debts, butchers who objected to the monopoly filed suit in federal court. Their claim relied on three clauses of the Fourteenth Amendment: first, that the state had abridged their “privileges and immunities” as United States citizens; second, that the Due Process Clause protected their “property” right to engage in their occupation without state hindrance; and third, that the monopoly favored some butchers over others and thus deprived them of the “equal protection of the laws.” The butchers also threw into their suit a claim that the monopoly violated the Thirteenth Amendment by forcing them into “involuntary servitude.” It was ironic that an all-white business group—the B
utchers’ Benevolent Association—brought the first claim before the Supreme Court under an amendment designed to remove the shackles of slavery from blacks. The irony was compounded by the butchers’ choice of former justice John A. Campbell to argue their case. Campbell had resigned from the Supreme Court in 1861 to join the Confederate government; he returned to its chamber as a prominent corporation lawyer. The Confederate states had loudly opposed the Fourteenth Amendment; Campbell now waved it like a battle flag for the butchers. Like his rebel compatriots, Campbell lost this contest with the Union forces that controlled the Supreme Court. But he came close to victory, just one. vote shy of success.

  As they had in 1810, when they ignored evidence of corruption in the Yazoo land grants, the justices shut their noses to the stench of bribery in the Yazoo land grants, the justice shut their noses to the stench of bribery in the Slaughterhouse Cases. The Court’s majority, led by Justice Samuel Miller, upheld the New Orleans monopoly with reasoning that rejected the clear wording and intent of the Fourteenth Amendment. Its first clause, designed to reverse the Dred Scott decision and confer citizenship on blacks, stated that “all persons born or naturalized” in the United States “are citizens of the United States and of the state wherein they reside.” This clause raised a serious constitutional question: Did Congress intend to eliminate the distinction between national and state citizenship on which Chief Justice Taney had based his Dred Scott opinion? Congressional debate on the Fourteenth Amendment in 1866 had focused largely on the “privileges and immunities” clause; the citizenship provision had been inserted near the end of debate, with little discussion. The whole context of the issue, however, indicated that Congress wanted to wipe out Taney’s ruling and create one form of citizenship, and to provide citizens with rights projected against state infringement.

  Justice Miller, however, ignored the debates of 1866 and turned the clock back to 1857. Restating Taney’s position in Dred Scott, Miller stated that “the distinction between citizenship of the United States and citizenship of a state is clearly recognized and established” in the Fourteenth Amendment’s first clause. He added that the two forms of citizenship provide each person with different sets of rights, one conferred by the state and the other by the Constitution. Miller based this dubious proposition on the Fourteenth Amendment’s provision that states could not “abridge the privileges or immunities of citizens of the United States.” This wording seemingly defined those rights in terms of national citizenship and limited them to constitutional guarantees. But the two clauses that followed this provision applied the guarantees of due process and equal protection to “any person,” without distinction of citizenship.

  With this semantic twist, Congress had unwittingly given Miller a tiny loophole, through which he wriggled with ease. “It is too clear for argument,” he wrote, that states were not bound to provide their citizens with the same “privileges and immunities” they enjoyed as national citizens. Miller went on, in a significant paragraph, to list “the very few express limitations” imposed by the Constitution on the states. In fact, he found just three: “the prohibition against ex post facto laws, bills of attainder, and laws impairing the obligation of contracts.” Even with the enforcement powers granted by Section 5 of the Fourteenth Amendment, Miller concluded, Congress could not go beyond these limitations to interfere with state “powers for domestic and local government, including the regulation of civil rights, the rights of person and of property,” and all other powers not delegated to Congress. The Louisiana legislature, not Congress, had the power to regulate the livestock business and create a slaughterhouse company with monopoly control.

  The Court’s majority brushed aside the due process and equal protection claims that Campbell had raised for the butchers. Given the later importance of these clauses in constitutional law, this seems odd. But the Court had not yet embarked on its later search for the “substantive” content of these clauses, despite the claim of the Slaughterhouse dissenters that “following a lawful employment” was a “liberty” right protected by the Fourteenth Amendment against state deprivation. Justices Stephen Field and Joseph Bradley led the judicial charge against Miller’s opinion. Although they both dissented, Field and Bradley wrote separately and stressed different points. Taking a close look at the citizenship clauses of the Fourteenth Amendment, Field could not see any distinction between national and state citizenship. “A citizen of a state is now only a citizen of the United States residing in that state,” he wrote. Consequently, the “privileges and immunities” of any person “are not dependent upon his citizenship of any state.” Field did not list all the federal rights he would protect from state regulation, but he singled out protection from legislative “grants of exclusive privileges” to corporate monopolies.

  Justice Bradley, even more hostile than Field to governmental regulation of business and industry, looked at the Due Process and Equal Protection Clauses of the Fourteenth Amendment. “In my view, a law which prohibits a large class of citizens from adopting a lawful employment,” he wrote, deprives them “of liberty as well as property, without due process of law.” The right of citizens to choose an occupation “is a portion of their liberty; their occupation is their property.” Under this double-barreled approach, members of the Butchers’ Benevolent Association were shielded from both state and federal regulation.

  Significantly, the four Slaughterhouse dissenters raised no objections to the paragraphs that Justice Miller added to his opinion on the powers of Congress, granted by Section V of the Fourteenth Amendment, to enforce its provisions “by appropriate legislation.” This clause had no relevance to the Louisiana law before the Court, but Miller wanted to warn Congress to stay away from the business of civil rights enforcement. He chose his words carefully, looking ahead to cases that raised claims of discrimination by blacks, not by white butchers. “We doubt very much whether any action of a state not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision,” Miller wrote. At first glance, this sentence allowed Congress to legislate against racial discrimination. A closer look, however, reveals its limitation to acts “of a state” that are “directed” against blacks. Discrimination that is “private” in nature did not fall within Miller’s narrow reading of the Fourteenth Amendment. The Supreme Court still employs the “state action” doctrine that Miller proclaimed in his Slaughterhouse opinion to shield “private” acts of racial discrimination from federal prohibition or prosecution.

  The Supreme Court decided the Slaughterhouse Cases just three weeks before Chief Justice Salmon Chase died on May 7, 1873. Although weakened by illness, Chase had joined the dissenters in this momentous case. His death gave President Grant a fourth opportunity to shape the Court during a period of political and economic turmoil. Southern resistance to Reconstruction was growing increasingly vocal and violent. And, once again, land speculation and bank failures led to economic disaster; the Panic of 1873 produced a four year depression that cost three million workers their jobs and thousands of farmers their land. The Supreme Court would deal with these issues in dozens of cases, under the leadership of Morrison R. Waite of Ohio, an undistinguished lawyer who specialized in real estate law and had no judicial experience. Waite was actually Grant’s seventh choice for Chief Justice; the prior six either declined nomination or withdrew in the face of Senate opposition. Ebenezer Hoar, Grant’s first attorney general, wrote sardonically that Waite was “that luckiest of all individuals known to the law, an innocent third party without notice.” Justice Stephen Field, who served under four Chief Justices, thought the least of Waite, whom he dismissed as “an experiment which no President has a right to make with our Court.”

  Salmon Chase and Morrison Waite had much in common: both were born in New England (New Hampshire and Connecticut); attended Ivy League colleges (Dartmouth and Yale); moved to Ohio as young lawyers and
set up commercial and corporate practices; were Republican in politics; and were far down the lists of potential Chief Justices of the presidents who appointed them. Behind these similarities, which suggest common views on constitutional issues, the two men differed on the great issue of their time: the power of the federal government to enforce Reconstruction laws. Chase voted to uphold the Civil Rights Act of 1866 and the broad grant of enforcement power to Congress in the Thirteenth Amendment, and he dissented in 1867 from two decisions that struck down state and federal laws requiring former Confederates to swear loyalty to the Union as a condition of practicing law and other professions. Chief Justice Waite, however, showed little sympathy during his fourteen years in office for federal efforts to enforce voting rights and protect blacks from violence. Probably the worst opinion of the 967 he wrote for the Court was handed down in March 1876. Waite’s opinion in United States v. Cruickshank, striking down the Enforcement Acts that were based on the Reconstruction amendments, illustrates his deliberate blindness to the murders of hundreds of black voters.

  This case began in 1873 (ironically, the day before the Court issued its Slaughterhouse decision) with a real slaughter in Colfax, Louisiana, the county seat of Grant Parish. An election dispute between white Democrats and black Republicans escalated into violence and turned into “the bloodiest single instance of racial carnage in the Reconstruction era,” wrote Eric Foner, that period’s leading historian. Black voters who feared that whites planned to seize the county government gathered at the courthouse, digging trenches and drilling with shotguns. They were assembled by the local sheriff, a Republican, and deputized as a posse to protect county offices in Colfax. On Easter Sunday, After three weeks of sporadic gunfire, a band of whites armed with rifles and a cannon blasted the courthouse, set it ablaze, and massacred the blacks who poured out, waving a white flag of surrender. The death toll remains in dispute; Foner wrote that “some fifty blacks” died, while a black Louisiana legislator stated at the time that “when the sun went down that night, it went down on the corpses of two hundred and eighty negroes.” Whatever the true number, there is no dispute that white racists had turned the Colfax courthouse into a human slaughterhouse.