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Posted by on Sep 1, 2010 in Law, Politics | 0 comments

Supreme Court – Not What You Think: Part III, The Conservative Activists

During the administration of Andrew Jackson the size of the Supreme Court had been increased from seven Justices to nine. In 1863 it was increased to ten. With Lincoln’s death, and Andrew Johnson in the White House, the Court was reduced from ten Justices to eight. To preserve the Reconstruction acts, congress had also limited the appellate jurisdiction of the Supreme Court. In 1869 newly inaugurated President Grant convinced congress to increase the Court’s membership back to nine, where it has since remained.

The dispute about who interprets the Constitution was not fully settled in everyone’s mind with the decision in Marbury v. Madison. When Lincoln appointed Salmon Chase to succeed Roger Taney as Chief Justice, Lincoln sent Chase a note “not to bother [himself] about the Constitution”, that Lincoln would see to it. Chase agreed, but his Court would later find Lincoln’s attempt to deny access to the courts for those facing “military commissions” unconstitutional. Politically ambitious, Chase had run against Lincoln for the presidency in 1864 and his appointment as Chief Justice may have been made to take him out of the political arena. It would not be the last time the maneuver would be used.

Grant was accused of “court packing” in 1869 when he sought the addition of a ninth seat to the Court. The charge was likely warranted. In 1867, the Court had divided 4-4 on the constitutionality of the Legal Tender Act of 1862 which allowed the federal government to issue paper money (greenbacks). Grant wanted a decision upholding the Legal Tender Act. Others, including Chief Justice Chase, opposed. In 1870, Chased convinced one Justice to change his vote and the Legal Tender Act was dead (5-3), leaving $350,000,000 in greenback currency in doubt. With the addition of a ninth Justice, and the death of another, Grant had two appointments. They joined the three dissenters from the 1870 decision to form a new majority and, in 1871, the prior year’s case was overruled and the government’s ability to issue paper money was restored.

With westward expansion, railroads became king. Smokestacks rose in the urban areas of the east and middle west as America responded to the Industrial Revolution. It was the age of robber barons, monopolies and sweatshops. And the reformers were determined to do something about it. Just one thing stood in their way. The United States Supreme Court.

By 1890, the Supreme Court had a four year backlog, with nearly 2000 pending cases. Congress responded in 1891 by finally ending the requirement for circuit riding by Supreme Court Justices. The same legislation for the first time gave appellate jurisdiction to the federal circuit courts and allowed the circuit courts to issue final decisions in certain cases, reducing the caseload of the Supreme Court.

Chief Justice Salmon Chase had been followed by Morrison Waite in 1874. Folksy and sometimes corny, Chief Justice Waite stepped the court back in the arena of constitutional analysis of legislation. He believed that a legislature knows the facts, and the courts must accept the legislature as “the exclusive judge” of when to pass regulatory laws and what to say in them. That philosophy was showcased in the Granger cases where the Court upheld state regulation of railroads and graineries engaged in interstate commerce against the argument that only the federal government, under the Commerce Clause, could regulate such enterprises.

One glaring exception to Waite’s philosophy occurred when his Court ruled most of the Civil Rights Act of 1875 unconstitutional in the Civil Rights Cases of 1883. The Act sought to prevent discrimination against “negroes” in public places. The Court ruled that Congress could take no action to prevent one citizen from discriminating against another. As a result, discrimination in refusing dining room service and public accommodation would survive another 80 years. The Court’s only southern member, John Harlan, wrote a scathing dissent. The Civil Rights Cases of 1883 would be followed by the Court’s adoption of the doctrine of “separate but equal” thirteen years later in Plessy v. Ferguson (1896).

In 1888, Melville Fuller succeeded Waite as Chief Justice. The Fuller Court was not nearly so deferential to “legislative wisdom” as the Waite Court had been. In a series of decisions, the Court backed away from the Granger decisions and struck down or limited legislative enactments, both federal and state, in favor of property rights.

In 1890, spurred by the reformers, Congress passed the Sherman Anti-Trust Act. It nearly went down in flames when it hit the Fuller Court. The government had used the Act in a suit against a company that controlled 98% of all refined sugar in the country. The Court agreed that the company held a monopoly on a “necessity of life”, but found that the company’s business did not affect interstate commerce and ruled in the company’s favor. That view of the Commerce Clause would change radically over the 40 years that followed.

When Socialist and reform leader Eugene Debs was imprisoned for his part in the Pullman strike, violating a lower court injunction against union organizers, the Supreme Court unanimously refused to hear his Petition for Writ of Habeas Corpus.

When Congress passed an income tax law, imposing a tax of 2% on income over $4000 a year, the Court took up the case. America’s first attempt at an income tax was found unconstitutional in a 5-4 decision. Following the series of “property rights” decisions, culminating in the income tax case, William Jennings Bryant described the Fuller Court as one that “stood with the rich and against the poor.”

In 1892, Louisiana enacted Jim Crow legislation that included “equal but separate” passenger cars on trains. Homer Plessy challenged the law. But, in 1896 the Fuller Court found the law reasonable and not discriminatory. The reformers had been thwarted again. As a result of Plessy v. Ferguson “separate but equal” would stand as the law of the land until 1954.

In 1898, the Supreme Court backed off the sugar trust case when it affirmed the opinion of Circuit Judge William Howard Taft, who avoided the sugar trust case in his decision by finding interstate price fixing among major pipe companies. Thanks to Taft’s careful reasoning around the sugar trust case, the Sherman Anti-Trust Act survived.

Committed to “trust busting”, Theodore Roosevelt was sworn into the presidency after William McKinley’s assassination, with Fuller and his “property rights” court still in place. Roosevelt successfully broke up the Northwest Securities Company. The Court found that securities could impact interstate commerce and that New Jersey securities laws did not supercede federal law on the subject. But, that did not mean the court had become reformer-friendly.

Before the Fuller Court ended in 1910, it found that New York State maximum hour laws, 60 hour work week, violated the Fourteenth Amendment. The Court’s opinion in the Lochner case of 1905 refers to such laws as a “meddlesome interference” with the right to contract between employer and employee. Harlan, as usual, accompanied by newly appointed Justice Oliver Wendell Holmes, dissented.

Some room was wedged into worker protection laws when an Oregon law limiting work to ten hours a day for women in factories and laundries was upheld. The case is perhaps more important for the brief submitted on behalf of the Oregon law by Louis Brandeis. For the first time he cited independent studies of the health effects and social impact on women working in such occupations and their families. The practice of citing such studies is still used today.

Reformers, who had achieved some gains despite the Fuller Court’s resistance, would fair no better under his replacement. This, and the Court’s role leading into the New Deal, will be addressed in Part IV.

Parts I and II, for those who may have missed them are linked here. Part I: The Early Years; Part II: 19th Century Activism.

Sources: Wikipedia;;; Constitution of the United States (annotated); and the Supreme Court Historical Society.

Note: This article has been edited to more accurately reflect the Judiciary Act of 1891 than was originally written.