AS A RESULT of this one-sided political combat, the Supreme Court turned even further right in the 1880s and 1890s, while reformers—and one justice on the court—looked on helplessly.
By the mid-1880s, Samuel Miller was, with Stephen Field, the last of Lincoln’s justices and the one who had remained truest to Republican ideals. Author of the Slaughterhouse opinion, he had scarcely imagined that it would become the defining construction of the Fourteenth Amendment, used to deny federal support to blacks. As he saw it, he had been addressing the case in front of him, involving a group of white butchers, not the amendment’s intended beneficiaries. He had given state governments the power to regulate economic activity for the public good, which he considered “the best and most beneficial public act” of his life. And Miller remained an opponent of Field’s campaign to use the Fourteenth Amendment to shield business from public controls.
This meant that his later years on the court were not happy ones. He was sorely disappointed by his brethren’s increasing conservatism, by their obsessive protection of railroad bondholders, their casual use of free railroad passes. “It is vain,” he would say, “to contend with judges who have been, at the bar, the advocates of railroad companies, and all the forms of associated capital, when they are called upon to decide cases where such interests are in contest.” As politically minded as ever, Miller felt so unhappy about the decline of the party of Lincoln that he allowed supporters to push for his nomination for president on the Republican ticket in 1880 and 1884. He didn’t have a chance. No wonder Miller’s sympathetic biographer, Michael Ross, entitled his book Justice of Shattered Dreams.
Miller’s final disappointment came in 1888, after the death of Morrison Waite, with the news that Melville Fuller had won the chief justiceship that Miller had long hoped for. President Cleveland did consider him but concluded that Miller was too old for the job—in fact, he would die two years later at the age of seventy-four. After rejecting others, Cleveland turned to Fuller, a fifty-five-year-old fellow Democrat from Illinois, a Harvard Law graduate, prominent railroad attorney—and, above all, unflinching conservative. Fuller believed that it was “the duty of the people to support the government and not of the government to support the people,” and he could be trusted to rule properly on private property, free trade, government regulation, and other laissez-faire issues. Fuller too had been an active politico, maintaining his party contacts by attending four Democratic National Conventions.
More ideological than intellectual, Fuller was expected to be a skillful mediator who could unite a divided court. His fellow justices stretched from Miller and John Marshall Harlan on the left to Bradley in the center and Field on the right. Harlan had been an unusual Hayes pick, a liberal who was more idiosyncratic than ideological. Born into a slaveholding family in Kentucky, he too had been politically engaged, but rather erratically: before the Civil War, he was first a Whig, then a Know-Nothing, and then a founder of Kentucky’s short-lived “Opposition Party.” These shifts won him a reputation for opportunism, but what was he to do? His parties kept collapsing under him. In 1860, dismayed by the extremism of the major parties, he became a Constitutional Union activist, devoted to preserving the Union at all costs, including the perpetuation of slavery. Harlan stuck to what he saw as the middle ground throughout the war, opposing Lincoln’s reelection in 1864 because he believed the president had “perverted” the Union cause by embracing emancipation. But the Unionist party’s collapse and the South’s violent response to Reconstruction made him an initially reluctant convert to the Republicans. Later he helped rejuvenate the Kentucky Republican party and ran two failed campaigns for governor. He slowly came to adopt with fervor not only Lincoln’s philosophy but even the conviction that the Fourteenth Amendment made the Bill of Rights enforceable on the states. This ensured that Harlan became a frequent and forceful dissenter from the court’s conservative consensus on a wide range of issues involving civil rights, economic regulation, the rights of criminal defendants, and even a case of seamen kept in employment conditions that Harlan denounced as approaching slavery.
IN THE LATE 1880S, as Americans celebrated the framing and ratification of the Constitution a century earlier, the Supreme Court shouldered a series of cases arising out of the titanic economic forces transforming the nation—cases that would test the flexibility and adaptability of the great charter. The court was undergoing changes too, but only slowly, as justices resigned or died. Hayes’s choice of Harlan turned out to be the only liberal appointment in the late 1870s and 1880s. His pick of William B. Woods, who served only six years on the bench, was notable for Woods’s unusual background: an Ohio native who moved to Alabama after service in the Union army, a Republican who adopted extreme states’ rights views and the Jim Crow “separate but equal” doctrine of racial segregation. Hayes also nominated Stanley Matthews, who was confirmed during Garfield’s brief administration. Chester Arthur, who became president when Garfield was assassinated in 1881, appointed Horace Gray of Massachusetts, a “Federalist Republican” who would serve on the court for twenty years. Though the strongest nationalist on the bench, Gray, unlike Harlan, was a reluctant dissenter, believing that disagreement injured the court’s reputation. Arthur also named Samuel Blatchford of New York, a specialist in admiralty and patent law with major industrialists among his clients, who served eleven years. The comings and goings of these justices illustrated again the vagaries and uncertainties of lifetime tenure on the court.
During the 1880s, a flock of major railroad cases arrived for decision by a high court packed with railroad attorneys. The 1886 case of Santa Clara Co. v. Southern Pacific R.R. was a landmark in the expansion of corporate power. The court ratified the argument former senator Roscoe Conkling had made while representing a railroad in another case: that the word “person” in the Fourteenth Amendment had been chosen twenty years before by its congressional framers, including Conkling himself, to extend the due process clause to “legal persons”—that is, to corporations. There was little evidence to back up Conkling’s claim, but neither did anyone contradict him—most of his colleagues on the framing committee were dead. As a result, corporations now gained the “privileges and immunities” of American citizens.
That same year, in Wabash, St. Louis & Pacific R.R. v. Illinois, the court denied the states any jurisdiction in interstate commerce and created a no-man’s-land where neither the states nor the federal government could regulate interstate railroad practices. In response, Congress the next year established the Interstate Commerce Commission, whose regulatory powers the court would dismantle piece by piece.
And with Chicago, Milwaukee & St. Paul R.R. v. Minnesota, in 1890, the Fuller Court’s first major railroad decision, the justices completed their creeping abandonment of Munn by drastically curtailing the powers of state regulators. By failing to provide for judicial review of its rate decisions, the court now ruled, the Minnesota rate commission had interfered with the property rights of railroads. For the first time, a majority of the justices recognized “substantive” due process, holding that the reasonableness of rates was “eminently a question for judicial investigation, requiring due process of law for its determination.” This was too much for Justice Bradley, who in a dissent defended Munn’s holding that the fairness of rates was a “legislative question, not a judicial one” and suggested that the court was on the path to granting corporations a constitutional right to a fair return on their investments.
Bradley was right. These conservative rulings were only the prelude to decisions in the 1890s, pioneered by Chief Justice Fuller and the “Fuller Team,” that would play a huge role in shaping the nation’s economy and human life.
Today the members of the Fuller Team are but footnotes in a general history of the court, but their collective impact was overwhelming. They were the four appointees of Benjamin Harrison during his one-term presidency and reflected his business-oriented conservatism. David J. Brewer of Kansas, a Yale-educated clergy-m
an’s son and nephew of Stephen Field, was the court’s leading Social Darwinist. In his version of that doctrine, the struggle for survival centered on the “love of acquirement,” the “real stimulus to human activity.” This led Brewer to extreme laissez-faire views, fiercely protective toward “the acquisition, possession, and enjoyment of property” as sacred pursuits of happiness “which human government cannot forbid, and which it cannot destroy.”
Brewer led the court’s climactic assault on Munn and was author of the 1894 opinion in Reagan v. Farmers’ Loan and Trust that fully realized Bradley’s fears. Brewer drew out of the Fourteenth Amendment’s equal protection clause a new, substantive constitutional right to a “fair return” for corporations. Because the regulation of rates prevented a corporation from charging as much as it could get away with and denied “some profit to those who have invested their money,” an “unreasonable” regulation would amount to a now unconstitutional “taking of private property for public purposes without just compensation.” It was the “ judicial function” to prevent legislators from “wresting” property from its owners. In making the justices the ultimate arbiters of profit margins at the largest corporations in the United States, Brewer spoke for a unanimous court.
Bradley by then was dead, replaced in 1892 by Pennsylvanian George Shiras, another Yale man and another enormously successful corporate lawyer, nominated by Harrison on Andrew Carnegie’s powerful recommendation. Shiras was one more laissez-faire conservative, but unique in that he became a justice without ever having held public office or taken an active role in politics. Henry B. Brown, still another Yaley and Social Darwinist, who took the place of Samuel Miller, was less dogmatically conservative but otherwise undistinguished. Harrison’s last appointment, Howell Jackson of Tennessee, a former Confederate officer and a corporate lawyer, was ill for much of his two years on the bench but managed to return from his sickbed to distinguish himself from other members of the Fuller Team with a forceful dissent from one of three watershed decisions of 1895, Pollock v. Farmers’ Loan and Trust Co., calling it “the most disastrous blow ever struck at the constitutional powers of Congress.”
In Pollock, the court overturned precedents dating back to the 1790s to strike down the first peacetime federal income tax, a 2 percent levy on annual income above $4,000 that would have affected less than 1 percent of Americans. A key demand of the Populists and taken up by Democrats from the South and the West, the tax was enacted after acrimonious debates in Congress, with Republicans denouncing the measure as class legislation and an assault on property. Chief Justice Fuller insisted in his opinion that the court was not “concerned with the question whether an income tax be or be not desirable,” but the highly technical ruling could not cloak the fact that the majority saw the tax as an attempt to alter what Brewer called “the unvarying law” of civilization, “that the wealth of a community will be in the hands of a few.” It would take a constitutional amendment, ratified two decades later, to overcome the Supreme Court’s opposition to the income tax.
With U.S. v. E. C. Knight Co., also decided in 1895, the court underscored its dedication to that “unvarying law” by drastically narrowing the scope of the 1890 Sherman Anti-Trust Act, which had been hailed as the first federal effort to regulate the huge monopolistic corporate combinations that were rapidly forming. Only after another decade of political agitation would “the third House of Congress,” as a law review called the court, loosen its grip on the regulation of monopolies, while retaining its own power to decide the “reasonableness” of regulations.
And most ominously in this same year of 1895, the court upheld a contempt citation against the president of the American Railway Union, Eugene Debs. Beginning in the 1880s, railroads had learned to turn to friendly courts for injunctions to break up strikes. When workers at Pullman, the Chicago sleeping car maker, walked out in 1894, Debs led his 160,000-member union in a sympathy strike that paralyzed the nation’s rail system. Grover Cleveland’s Justice Department quickly won a federal injunction to stop the strike. When Debs defied it, he was convicted of contempt. The Fuller Court, eager as it was to uphold the Debs conviction in the name of public order—and to teach other union leaders a lesson—faced a quandary. The court had long held, most notably in its Reconstruction decisions, that security—“the chief end of government,” as Justice Brewer said—was the function of state governments. In the Debs case, though, Brewer found a “special exigency” that demanded an exception to that rule—even if Debs broke no federal law, the strike was a danger to the national economy, threatening widespread “interference” with “property or rights of a pecuniary nature.”
The attorney for Debs had pleaded with the court to remain neutral in the battle between labor and capital. But in its three 1895 decisions, the Fuller Court had made it unmistakably clear where it stood—with the powerful and the propertied. Such holdings were the triumph, wrote the New York World, of “greed over need.” They destroyed the few tools fashioned by Congress and by workers to contain corporate power and to temper the massive inequalities of America’s industrial revolution.
The decisions triggered an anti-court uproar unmatched since Dred Scott. Outrage carried into the 1896 presidential campaign. The Populists sacrificed their party in order to “fuse” with radical Democrats led by William Jennings Bryan, who, much to the dismay of conservative Clevelandites, became the Democratic nominee. The fusion campaign challenged as never before the Republican reign of “government by injunction,” with its courts that served as “at once legislators, judges, and executioners.” But not even the combined “Demopop” forces could defeat the Republicans, who proved that the electoral power Lincoln had bequeathed them remained largely intact. Warning in turn of “government by the mob,” they elected William McKinley. It looked as though the Republicans—and their “ judicial oligarchy”—might rule forever.
AS MCKINLEY added Joseph McKenna, still another Republican politico, to the court’s Fuller Team, it was evident that, more than three decades after the Civil War, Americans were witnessing the greatest, most enduring episode of court-packing in American history. The acid test was the ideology of the justices who so dominated the court decade after decade. They looked imposing in their dark gowns as they assembled for their group picture, differentiated mainly by their diverse combinations of beards, mustaches, and side-burns. Their faces seemed benign, perhaps a bit complacent. On their $5,000 annual salaries, which would have made them subject to the income tax they vetoed in Pollock, they were able to live in the DuPont Circle area of Washington, some taking the trolley to work on Capitol Hill. Still, one wonders, considering some of their earthshaking economic and social decisions during the postwar era, whether they paused for a moment to consider the impact of their decisions on the wretched lives of ill-paid and overworked laborers, mortgaged farmers, penniless immigrants, and slum dwellers.
The mystery deepens with the Supreme Court’s 1896 decision in Plessy v. Ferguson, which sustained a Louisiana law that didn’t simply permit but required segregated railway cars. Even though the court acknowledged that the Fourteenth Amendment’s intent was “undoubtedly to enforce the absolute equality of the two races before the law,” it ruled that if equal accommodations were offered to blacks, segregation did not constitute discrimination, since they were not denied equal protection of the laws. The court in Plessy reacted as though blacks were attempting to force social equality upon whites. While denying that “the enforced separation of the two races stamps the colored race with a badge of inferiority,” the court contended that “legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences. . . . If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plain.” In reality, the Jim Crow laws, widespread in the South by 1896, forbade blacks, under penalty of law, from occupying the same public, work, living, recreational, and school places as whites. There was only one dissent
to this decision, by Justice Harlan, who called the ruling as “pernicious” as Dred Scott. Harlan saw Jim Crow as an assault on liberty, a degradation of “the personal freedom of citizens.” “Our Constitution is color-blind,” he wrote, “and neither knows nor tolerates classes among citizens.”
Not one of Harlan’s colleagues agreed. Their abandonment of the Republican party’s founding principles still haunts Americans more than a century later. Plessy delivered a final blow to the civil rights that they—or at least their fathers and uncles—had fought for in the “war between the states.” That war had been framed by many Republicans as a great moral crusade, posing issues on which their party had prospered, securing the power that put most of these justices on the Supreme Court. But from the high bench they had left the momentous civil rights amendments in tatters, before going on to block initiatives to improve the lives of farmers, laborers, and the poor. Why? They were influenced by their straitlaced religious upbringings as Protestants in an era when that faith gave moral underpinning to laissez-faire capitalism and individualistic material striving. They lived in an age when rags-to-riches was the defining myth, when fortunes burgeoned and wealthy families rose to rival European aristocrats. Most of the justices of the Gilded Age Supreme Court had spent their earlier years in service to, and earning handsome incomes from, the new breed of rich and powerful capitalists. They were themselves among the privileged creatures of the Gilded Age, of laissez faire in all its unbounded glory. So why fight it?
Still, it is striking that these men, members of a ruling elite that possessed a near monopoly of power—political, legal, economic, social, military—so often felt themselves threatened, even besieged, by the dispossessed. In the unrest of powerless workers, David Brewer, for instance, could imagine “the black flag of anarchism, flaunting destruction to property” plus “the red flag of socialism, inviting a redistribution of property.” Reflecting the urgency and determination of his fellow justices of the Gilded Age Supreme Court, Brewer concluded that, as revolution loomed, the law had “to do all that it can.”
Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court Page 11