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88 A FINER POINT Vol. 104 No. 3 Empty Chairs he sudden deaths of United 71-year-old Chief insisted on coming to States Supreme Court Associate Court for the opinion’s announcement, Justice Ruth Bader Ginsburg and Justice Samuel Blatchford had to read TAssociate Justice Antonin Scalia ignited the opinion instead. Waite’s pneumonia political firestorms regarding the appro- overtook him three days later. The new priate timeline for confirming a new Chief Justice, Melville Fuller, assumed justice in a presidential election year. his seat with the next October term. Associate Justice Amy Coney Barrett’s By then, Stanley Matthews’s chair confirmation revived debates about was also empty, as the 75-year-old jus- potential expansion of the Court’s size. tice was suffering from the effects of While the recent past and uncertain an ailment caught during New York’s future of the Court may feel unusu- Great Blizzard of 1888. Matthews ally turbulent, history reveals some took no part in arguments during parallels. October Term 1888 and finally suc- The eight-year tenure of Justice a threadbare bench of six. Stephen cumbed to his illness in March 1889. Stanley Matthews in the late 19th Field was vacationing in Europe until His successor, David Brewer, assumed century was bookended in tumult: December. Nathan Clifford had resigned Matthews’s seat 290 days after the first, a controversy surrounding his in the spring and then died that sum- former justice’s death. razor-thin confirmation, and then a mer; his successor, Horace Gray, did not The Court’s docket continued its succession of deaths among sitting jus- arrive until January 1882. Ward Hunt malignant growth, ballooning to more tices. President Rutherford B. Hayes had been sidelined by illness for more than 1,800 cases in 1890. That year, nominated Matthews, his former col- than two years; when Matthews had Matthews’s former colleague Justice lege classmate, to the Court in January to recuse himself from an early case Samuel Miller left another empty chair 1881 to replace the recently retired for a conflict of interest, Hunt returned after suffering a fatal stroke on his way Noah Swayne. The selection of an to the bench temporarily in order to home from the Court in October 1890. Ohio attorney and politician gener- achieve the required quorum. Miller’s seat remained vacant for 85 ated scathing editorials by the press To make matters worse, the fre- days, until Henry Billings Brown took concerning Matthews’s potential alle- quently short-handed Court that his oath the following January. giance to the railroad companies he had Matthews joined was buckling under Just a few weeks after Justice Brown’s often defended in his legal practice. the weight of a grueling workload. By arrival, the Judiciary Act of 1891 estab- The Senate Judiciary Committee, the late 1880s, the Court’s annual docket lished the intermediate Circuit Courts stacked with several of Matthews’s for- was in the thousands — more than dou- of Appeals. The new courts eliminated mer political rivals, took no action on his ble its caseload from 1870. Beyond the the justices’ circuit-riding duties and nomination during the 46th Congress. relentless pace in Washington, justices immediately reduced the Court’s fil- President James Garfield re-nominated faced the further strain of “riding cir- ings and workload, but relief came too Matthews in May 1881, to the sur- cuit” to preside over trials in assigned late for Matthews and several of his prise of many. After rancorous debate, circuit courts around the country. former brethren. The next death of a Justice Matthews was confirmed in the Toward the end of Matthews’s time sitting justice (Joseph P. Bradley) would Senate by a single vote — a distinction on the Court, four sitting justices died in not come until January 1892, making that has yet to be repeated. Thomas office in as many years. First was 64-year- 1891 the most stable Supreme Court Nast memorialized the notorious Court old William Burnham Woods, who died bench in nearly half a decade. appointment in a Harper’s Weekly car- of dropsy in May 1887; his successor, toon, showing Matthews tipping the Lucius Q.C. Lamar, did not assume the JENNIFER L. BEHRENS is associate balance of a board labeled “U.S. Supreme seat until January 1888. Chief Justice director for administration and scholarship Court Bench,” captioned “On — By the Morrison Waite’s service ended in at Duke Law School’s J. Michael Goodson Skin of His Teeth.” March 1888, after he completed draft- Law Library. Portions of this article previously Associate Justice Matthews’s first ing the mammoth Alexander Graham appeared in the 2020 Green Bag Almanac & term opened in October 1881 with Bell Telephone Cases. Though the ailing Reader (purchase at www.greenbag.org). ABOVE: THE BENCH DRAPED FOR THE DEATH OF JUSTICE GINSBURG, SEPTEMBER 2020. BY FRED SCHILLING, COLLECTION OF THE SUPREME COURT OF THE UNITED STATES..
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