Melancholy Justice: Samuel Freeman Miller and the Supreme Court During the Gilded Age

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Thls Jllurnal is printed on 'Kid-lice p,'per. SUPREME COUR T HISTORIC AL SOCIETY

HONORARY CHAIRMAN John G. Roberts, Jr. HONORARY TRUSTEE Sandra Day O'Connor CHAIRMAN EMERITUS Dwight D. Opperman CHAIRMAN Leon Silverman PRESIDENT Frank C. Jones VICE PRESIDENTS Vincent C. Burke, III Dorothy Tapper Goldman E. Barrett Prettyman, Jr. Ralph 1. Lancaster, J r. SECRETARY Virgin ia Warren Daly TREASURER Sheldon S. Cohen

TRUSTEES

George R. Adams Frank G. Jones Sally Rider J. Bruce Alverson Robb M. Jones J o nath ~n c. Rose Peter G. Angelos Gregory Josep h Richard A. Schneider Martha Barnett Philip Allen Lacovara David Scott David J. Beck Jerome B. Libin Jay Sekulow Herman Bel.z Joan Lukey Nicole K. Seligman Hugo L. Black, Jr. Maureen E. Mahoney Steven R. Shapiro Nancy Brennan Mrs. Thurgood Marshall Jerold S. Solovy Beth S. Bri nkmann Thurgood Marshall, Jr. Kenneth W Starr Leono ra Burger Timothy Mayopoulos Mathew D. Staver Patricia Dwinncll Buder Stephen R. McAllister Mrs. Potter Stewart Edmund N. C~rpenter II Teri McClure Cathleen Douglas Stone Charles J. Cooper Gregory Michael Mikel L. Stout Mi ch~eI A. Cooper Jeffrey R. Minear Dennis R. Suplee Harlan R. Crow Josep h R. Moderow Larry Thompson James C. Duff Mtchael Mone Seth P. Wnm:m Wtlltam Edlund Lucas Morel Agnes N. Willtams James D. Ellis Charles Morgan W Wayne Withers Mtgue1 A. Estrada J~mes W Morrts, III W. Foster Wollen Davtd Frederick John M. Nannes Donald Wrtght Charles 0. Ga lvin Ri ck D. Nydegger Robert E. Ju ceam Kenneth S. Geller James B. O'Hara General C~I/I1sel Frank B. Gibert Theodore B. Olsen James L. Goldman Brian B. O'Neill David T Pride Robert J. Grey, Jr. D~vtd Onorato Exec"UI ive Director Frank Gundlach Carrer G. Phillips Kathleen Shurtleff Robert A. Gwinn Leon Polsky Assistant Director Benjamin Het nema n Harry M. Re asoner Allen Hill Bernard Reese A.E. Dick Howa rd Charles B. Renfrew JOURNAL OF SUPREME COURT HISTORY

2008 vol. 33 no. 2

PUBLICATIONS COMMITTEE James B. O'Hara, Chairman Donald B. Ayer Louis R. Cohen Lucas Morel Luther T Munford David O'Brien Carter G. Phillips E. Barrett Prettyman, J r. Michael Russ D. Grier Stephenson, Jr. Melvin 1. Urofsky

BOARD OF EDITORS Melvin 1. Urofsky, Chairman Herman Belz David J. Bodenhamer Craig Joyce D avid O'Brien Michael Parrish L.A. Powe, Jr. Sandra VanBurkleo

MANAGING EDITOR Clare Cushman

Blackwell Publlshmg, Boscon, M.ls SJchuscrts &. Oxford, UK GENERAL STATEMENT

The a private non-profit is dedicated to the collecriou and of the Court of the United States. in the District of Columbia iu 1974, It was founded by ChiefJustice Warren E. who served as its first honorary chairman. The SocidY accomplishes its mission by educatiOnal programs, historical research, publishing books, journals, and electronic materials, and by ""'PeTIn,\) to the Court's history. These activities and others increase the public's awareness of the Court's contributrons to our nation's rich constitutional The Society maintains an educational outreach program mClec,ra:na'llIg of the Court, the Constitution and the cosponsors Street Law Inc:s summer institute, school teachers to educate their students about the Court and the Constitution. It also sponsors an annual lecture series at the well as occasional public lectures around the countty. The Society maintains Its own educational website and cosponsors a website that curriculum support reachers about important Court cases. In terms of the distributes a newsletter to its members containing short historical pieces on the Court and articles describing the Society's programs and activities. It also publishes the Journal of Supreme Court a scholarly collection of articles and book reviews, which appears in March, July and November. The awards cash prizes to students and established scholars to promote scholarshIp. The Society Initiated the History of the Court of the United States, 178r-1800 in 1977 with a grant from the National Historical Publications and Records Commission The seeks to reconstruct an accurate record of the of the federal In the formative decade between and 1800 because records ftom this

rr11mr,lp,·p or The Court became a cosponsor in then the project has LVJLIl~"':lXU seven out of the volumes. An ora! program in which former Solicitors General, former Attorneys General, and retired are interviewed is another research sponsored by (he The Society maintains a program that has interest books: The Supreme Court Illustrated Biographies 178r-1995 short illustrated biographies of the 108 Justices; Supreme Court Decisions and \\lomens Rights: Milestones to (2000), a guide to Court Cases for and About School Students a school textbook writren by Raskin; and Black \\lhite and Brown: The Landmark School Desegregation Case in t

The 6,000 members whose financial support and volunteer in the Society's and ad hoc committees enables tbe to function. These cornrnircees report to an elected Board ofTrustees and an Executive Committee, the latter of which is principally for policy decisions and for the Society's permanent staff. for additional mformation should be directed to the headquarters at 224 East 543-0400, or to the Society's websltc ae

The has to receive tax deductible SOl (c)(J)Ofihc Intern,,! Rtvcnuc JOURNAL OF SUPREME COURT HISTOR Y

2008, vol. 33, n o. 2

INTRODUCTION

Melvin 1. Urojsky v

ARTICLES

T he Gilded Age and the Supreme Court: An Overview

james O'Hara 123

Melancholy Ju stice: Samuel Freeman M il ler and the Supreme Court during the G il ded Age Michael A. Ross 134

Justi ce Stephen Field of California Paul Kens 149

Stanley Matthews: A Case Portrait of Gilded Age H igh Court Jurisprudence jonathan Lurie 160

Justice Dav id J. Brewer and "the Constitution in Ex ile"

William M. Wiecek 170

A Tall Tale of The Breth ren Ross E. Davies 186

The Ju dicial Bookshelf

D. Grier Stephenson, Jr. 2.00

(ONTRIBUTORS 2.2.1

ILLUSTRATION (RED ITS 2.2.2.

When Mark Twain and Charles Dudley American standard of the in the Warner first wrote about the "Gilded Age" in world. The of industrialization 1883, they certainly did not mean the phrase to also laid the basis for the and Pro be laudatory. The two men saw the latter part of gressive movements and the birth of the mod the nineteenth century as the expression of all ern political order. And an age that the worst traits in the nation's character, and the of Mark that view has remained with the public ever son, William Dean Howells, and since. There is no question that in the decades Stephen Crane cannot be characterized as a after the Civil War, America's industrialization cultural wasteland. came accompanied by horrid working condi In terms of constitutional tions for laborers in mines and factories, ex long the jurisprudence of the ploitation ofwomen and children, and conspic has been characterized simply as uous consumption by the captains of industry with the Court the Constitution into that many people besides Twain and a protective wall for property In re Warner. cent years we have to understand that While historians have not denied the truth while the Court, like the rest of the of the "Gilded have found believed in the of nrr>nprh; the era to be far more The completion' of thousands of miles of railroad track helped to tie the various states into a Union, to make been outmoded in our economy and men and women wherever lived see them society, but if we wish to understand the great selves as "Americans" rather than "Kansans" jurisprudential that took in the or While so-called robber barons twentieth century, we have to start in the latter such as John D. Rockefeller, Andrew Carnegie, part of the nineteenth. and J. P. grew phenomenally wealthy, This is what the contributors to this is the industries created to make the sue have done, in papers originally given as

v vi JOURNAL OF SUPREME COURT HISTORY part of a lecture series on the Court and the when a careful reader is suddenly pulled up Gilded Age. Other than people interested in short by something he or she reads and says the Court's history, few will even recognize the "That can't be true!" In this case the ques names of Samuel Miller, Stephen Field, Stan tion came out of a baseball case decided by ley Matthews, and David Brewer, but as you the Court and written by Harry A. Blackmun, will discover on reading these articles, they whom everyone knew was a rabid baseball fan. played an important role in shaping the Court's Could he have deliberately overlooked impor response to the new America. And that re .tant African-American players, as Bob Wood sponse, of course, is what progressive reform ward and Scott Armstrong charged? The open ers like Holmes and Brandeis attacked in their ing of the Blackmun Papers gave Professor turn. Davies a chance to find out the truth. In addition, we have an article by Ross Finally, as always, we are grateful to Davies regarding an incident mentioned in Grier Stephenson for keeping us up to date the best-selling book about the Court, The on the important books appearing about the Brethren. It is the type of article that results Court. The Gilded Age and the Supreme Court: An Overview

JAMES O'HARA

I. The Era In 1873, Mark Twain wrote his first novel, The Gilded Age, in collaboration with a neighbor, newspaper editor and critic Charles Dudley Warner. The title of the book became the name of an era that embraced roughly fifty years, from the end of the Civil War to the presidency of Theodore Roosevelt. From the perspective of Supreme Court history, the era can be more precisely timed. It begins with the appointment of Chief Justice Salmon Portland Chase in late 1864, and ends with the death of Chief Justice Melville Weston Fuller in 1910. That fits nicely with the remaining lectures in this year's series. Justices Samuel F. Miller and Stephen 1. Field joined this Bench only slightly before Chase, and Justice David 1. Brewer died the same year as Fuller. The Court does not exist in a vacuum; it is The dictionary defines "to gild" as "to always a creature of its own day, and it should give an attractive but often deceptive appear be. Before looking in more detail at the Court, ance to." So the word itself implies deception, the Justices, and the cases from 1865 to 1910, hypocrisy, dishonesty. It conjures a vision it will be useful to look at the context of its" of pleasant appearances hiding the ugliness work: the era itself and its political climate. underneath. The heavy caricature of Twain's In one sense, the name "Gilded Age" is un novel was expanded by Thomas Nast's car fair. Usually, historical periods are defined by toons and multiplied by the writers Theodore great events ("The Reformation") or by com Roosevelt called "Muckrakers." We think of manding figures ("The Victorian Age"). The the obscene wealth of a few and the vi Gilded Age is an exception. It has been labeled, cious, grinding poverty of the many. The rich and thus defined, by its detractors. dance their minuets in 200-room mansions in 124 JOURNAL OF COU RT H I STORY

The Gilded Age was the era of rapid in dustrialization and the arrival of streams of immigrants. This 1892 photo of New York City shows the beginning of congested streets.

rials and fuel from distances, then ship finished to equally distant markets. cians on the take from with fat cigars Communication, once limited to the speed of and diamond studs. Like all caricatures, the a horse, now was measured by the speed of picture is overdrawn and tells only a partial truth. No historical of fifty years' du and inventors flourished; ration can be summarized in a sin a few were rewarded with fabulous wealth. gle adjective. Dishonest We still remember the names, more than a cial century later: McCormick and Deere in cultural found in every age, and every age tries to cover man, them up. roads; Armour and Swift in meat packing; would reveal in copper; Reynolds and Duke in enormous, The United tobacco; and Frick in steel; Dupont States was industrialized almost overnight. Be in chemicals; Rockefeller in oil; Westinghouse fore the Civil War, and distri in electrical equipment; Morgan, Cooke, and C'omniptpj" local. Yet in less Belmont in finance. By the end ofthe era, Ford his first car, Bell had invented and Edison was ev

p,.."thtnO else! Hundreds of daily newspapers THE GILDED AGE AND THE SUPREME COURT 125

Cornelius Vanderbilt. who made his fortune in railroads and shipping, owned a mansion in New York (pictured) and an even more extravagant summer home in Newport, Rhode Island. He grew up poor on Staten Island and became one of the most influential industrialists of his day. fueled public fascination with the did involve long hours at low pay, neering feats of the day. The Atlantic Cable and social critics did not hesitate to call the and the great transcontinental railroad marked workers' situation exploitation. Yet the waves the beginning of the era; the Brooklyn of immigration continued unabated, because was the great story of the 1 and the life in the new world was almost infinitely bet Panama Canal was completed after the ter than the life left behind. era ended. The popUlation was moving west. Cali Industrial growth was matched pop- fornia had already become a state prior to the ulation growth. was, of course, Civil War. Ten more states were admitted to the the driving force. The Census of 1860 counted Union during the Gilded Age, and they were thirty million the Census of 1910 almost all in the distant West. But railroads had counted ninety million. The process \vas a made the nation smaller: There were 240,000 came because there were . miles of track by 1910. because there was an In this was a golden age. workers. And Melville and Longfellow died early in the era. But Waldo Emerson and Louisa Mae Alcott and Horatio and Stephen had to Crane and James and Oliver Wendell Holmes and Emily Dickenson and 0. and Bret Harte and Walt Whitman and Joel THE GILDED AGE AND THE SUPREME COURT 125

Cornelius Vanderbilt, who made his fortune in railroads and shipping, owned a mansion in New York (pictured) and an even more extravagant summer home in Newport, Rhode Island . He grew up poor on Staten Island and became one of the most influential industrialists of his day. fueled public fascination with the great engi The jobs did involve long hours at low pay, neering feats of the day. The Atlantic Cable and social critics did not hesitate to call the and the great transcontinental railroad marked workers' situation exploitation. Yet the waves the beginning of the era; the Brooklyn Bridge of immigration continued unabated, because was the great story of the 1880s; and the life in the new world was almost infinitely bet Panama Canal was completed shortly after the ter than the life left behind. era ended. The population was moving west. Cali Industrial growth was matched by pop fornia had already become a state prior to the ulation growth. Immigration was, of course, Civil War. Ten more states were admitted to the the driving force. The Census of 1860 counted Union during the Gilded Age, and they were thirty million inhabitants; the Census of 1910 almost all in the distant West. But railroads had counted ninety million. The process was a huge made the nation smaller: There were 240,000 cycle. Immigrants came because there were • miles of track by 1910. jobs; the jobs multiplied because there was an In literature, this was a golden age. inexhaustible supply of willing workers. And Melville and Longfellow died early in the the immigrants were absorbed into the econ era. But Ralph Waldo Emerson and Louisa omy. They had to be fed, and they were. They Mae Alcott and Horatio Alger and Stephen had to be housed, and they were. They had to Crane and Henry James and Oliver Wendell be schooled, and a remarkably fine system of Holmes and Emily Dickenson and O. Henry public schools met the challenge. and Bret Harte and Walt Whitman and Joel 126 JOURNAL OF E COURT H

The birth of industry and the enormous prof its that followed cre ated a much wider gap between the haves and the have-nots, This 1902 cartoon criticizes one infant industry the electric trust-but Thomas A, Edison's in vention of a remark, able number of elec trical devices helped the United States be come a leader in ap plied technology,

Chandler Harris and Twain were all being II. The Political Climate read, The sophisticated could subscribe to the Atlantic Alontil ly, the Nation, or Politically, the era was insecure, The casualties laugh at the political wit of ofthe Civil War had been and both Ill- North and South reeled with griefand seethed who contrasted the with anger and bitterness. In the there was the additional humiliation and economic tury with the chaos of the nineteenth, low, The newlv freed slaves were left education flourished, The land- to fend for themselves, had no colleges grew in numbers and influence, no marketable skills, For the most part, they and they were joined by literally hundreds could not read or write, of col founded The presidency was weak, From Abra nations, Indeed, the ham Lincoln to William Howard there were eleven Presidents; only UlYsses S, Grant on in great universities: Carnegie-\1el Johns Hopkins and years, three Presidents were murdered, Stanford, Two were succeeded Vice Presidents who It was a heady time' If, as an age, it was had no political power base, Andrew Johnson gilded and glitzy, it was also one of remarkable was impeached and almost removed from of accomplishment, wrought by hard work and fice, Chester Arthur was not even able to se cure renomination by his own political party, THE GILDED AGE AND THE SUPREME COURT 127

This 1900 cartoon satirizes the common man being overpowered by the big trusts. Modern labor unions emerged out of the Gilded Age.

He watched helplessly as he was ditched. Both land's The maritime interests did not and the tended to be coincide with those of the railroads. Bankers although Grover Cleveland was feared the easy money demands of the sil twice elected and the Democrats occasion ver states. The Democratic party con ally controlled the House. But the ''-''!JU>O'",-"''''''' trolJed the "solid South, and that, coupled were fractionalized by sion. The distant West did not share New Eng 128 JOURNAL Of SUPREME COURT HISTORY

The ethical standards ofthe day were more of the labor unions; with supple and flexible than those demanded of often-violent strikes and labor the later Laws were lax and often unenforced. Senators were elected not vote. In some states, high offices were for sale. Political cynicism excessive profits. was widespread. After all, Roscoe Conkling 4. policy, principally: of and William Marcy Tweed were Senators, and American interests abroad; the Conkling almost became a Court Jus tice. One wag that Conkling turned the annexation of Hawaii; down the honor because the bribes for a Sen War, what to do with ator were too attractive and Justices could not Cuba and the be bought. 5. the admission, status, and as But most and similation of the influx of new resi the questions posed immi John who no English or, on the West or John Hay. who were from Asia; the biases and But the weaknesses in the presidency and that often accompany immigration. division in the took its toll. There These were not easy issues. Some are still werc important and recurrent issues. Not all with us, in modern clothing. Many, as we will were addressed see, found their way to the Supreme Court.

1. The ajfermath the Civil War 'with its many subplots: readmission of states to the III. The Court grant of votes in Congress to the states of the Changes in the Court during the tion and military courts; ."hm('nt or tri Gilded almost matched the pace of eco als for Confederate civil and lead nomic and cultural outside i1. The ers; passage of the Civil War Amendments Court after the Civil War was very different and their ratification and implementation; from its antebellum predecessor, even as it is the impeachment of President Johnson; the different from the Court. Some of the plight of the former change was but not unimportant. tion and economic amnesty There was, first of all, a new Courtroom. for Confederate troops; offor Since 1810, except for a few years after the mer Confederates to the Cabinet and the British burned the in 18 the Court Civil War claims had met in a basement room under the old Sen governments. ate Chamber. The room had a certain elegance, 2. Financial questions, including: the but it was damp, dark, and smoky from of paper money; the gold standard and the the oil lamps. It was located near a ma silver the constitutional itv of the in jor entrance to the It was also small, come tax; financial panics and with accommodations for only a limited num the perennially vexing question of the pro ber of spectators other than the participants. tective tariff; the appropriate level of pro There was no room for conferences, tectlon. and the robing room was a few wooden pegs 3. and the fj by the door. nancial and social power of When the Senate moved to its present of "r\rnl'\r~t chamber in 1860. the Suoreme Court inherited GILDED AGE AND E SUPREME COURT 129 its old chamber, a much brighter and tutiona!' In the next years, it did so space. The Court also got a conference room, thirty times. and the old courtroom became a small law li In 1865, when our begins, Justices brary. But the Justices sti II did not have were paid $6,000 in 1910, it was they worked from their homes. $] The Chief Justice was always paid That was Prior to the Civil $500 more. These amounts were large when War, most of the Justices did not live in Wash compared to the wages of a common laborer. ington. Since were expected to travel ex as now, Justices earned far less than able tensively to circuit duties, lived attorneys in in their home states, coming to Justices of the late nineteenth century had their personal judicial philosophies and often weeks. But after the Civil War, residence in sharply but there was an opportu became the norm, and the Justices as a Court, to develop an information or drafts by messenger. approach ofits own. While modern critics may The Justices had no staff. were on the "right ofcontract" written in and cause for or on its use of eco to the Court's Reporter. There were no nomic or substantive due process, no one can clerks until I when Justice Horace dispute that this was a time when the hired a recent law-school graduate and paid Court of the United States grew in stature, in him out of his own pocket. Four years later, maturity, and in self-assurance. The Court had practl(;e by ap paid a in public esteem as the result of the decision in Dred Scott v. Sanford before the Civil War. But during the Gilded control over its own docket. The Circuit Courts the Court inched its way not of were not established unti I 1891, only to but even to affection. The year of them, at least--came 1889 was the Centennial of the constitutional Court even if the issues pre government in America. When met sented were of little national consequence. By in joint session to celebrate on the lOOlh an- the I there was a of over fif of Washington's the teen hundred cases, and the Court was four invited was not the President: it was years behind. Yet the Justices still were ex- Chief Justice Fuller. to go on circuit for several months each year. The arduous and travel WU''''''l!5, even with railroads. IV. The Justices for example, was to go to California by rail when he was no longer Three Chief Justices and Asso young. ciate Justices served from 1865 to 1910. Dis While private law cases continued to dom in the inate the docket, the sheer volume brought an and four who joined the at its increasing number ofconstitutional. cases. The a total oftwenty-four Justices served. Un into a true consti it is a era of the Court's tutional court, the ultimate and au work. Most of the Justices have been thoritative interpreter of constitutional mean- ten; there are adequate modern This new role is well by a nine. statistical comparison. In the first seventy-five The three ChiefJustices years of its existence, twice did the Court One was one of the best-known political fig strike down an Act of as unconsti ures of his day; the names of the other two 130 JOURNAL OF SUPREME COURT HISTORY were completely unrecognizable to the gen Court moving smoothly during the time of eral public when their appointments were an the four-year backlog ofmore than a thousand nounced. Chief Justice Chase is now remem cases. When he died in I888--of, some said, bered as Abraham Lincoln's Secretary of the exhaustion and overwork-there was genuine Treasury. Born in New Hampshire, he went to dismay and grief. Ohio to practice law. He was very bright, tire Waite's replacement was Fuller, a Chicago less, and strong-willed. His passionate oppo lawyer also unknown to the general pUblic. But sition to slavery and his natural talents quickly Fuller was a distinguished specialist in appel brought him to political prominence. He was late practice, highly respected in legal circles elected to the Senate, then Governor. He was a and a veteran of many arguments before the founder ofthe Republican party, and by 1860, a Supreme Court. Ifa single word could be used credible candidate for the party's presidential to describe the new Chief Justice, it might be nomination. Lincoln won instead, and Chase "lovable." He had a perpetual twinkle in his joined the Cabinet, but he was never able to eye, a gentle sense of humor, and an endear shake the belief that he was a better man than ing charm. His hobby was writing very bad Lincoln. In 1864, he even conspired to wrest poetry. It was Fuller who introduced the tradi the second-term nomination from the Presi tion of the Justices' exchange of handshakes dent, while still in the Cabinet! Chase had before official meetings. The amiable exterior two flaws. First, his vanity was legendary. Ob marked a first-rate legal mind and real lead servers noted that he was a pious Christian, but ership talent. Oliver Wendell Holmes thought that his Trinity was composed offour persons. of him as his favorite and most efficient Chief His second flaw was ambition. Desire for the Justice-and Holmes served also with Taft and presidency became a consuming passion. Even Hughes, both formidable leaders themselves. as Chief Justice, he angled for a nomination, Fuller was a commanding figure on the Bench. and it mattered not which party might offer it. He was short of stature, with shoulder-length As late as 1870, after suffering a series of de white hair and a long white moustache. And bilitating strokes, he was still plotting to run in he was Chief for a long time-twenty-two the election of 1872. years-longer than any other of the sixteen to When Chase died in 1873, after nine years date except for John Marshall and Roger Taney. in office, President Grant made a series of But, as is sometimes the case, the intel blunders in an effort to find a successor. An lectual leadership did not come from the cen offer was dangled before at least five poten ter chair. Four Associate Justices stand out. tial nominees, some of them hopelessly un The dominant figures were Miller and Field, qualified and even corrupt. Two nominations both Lincoln appointees; Joseph P. Bradley, ap were actually sent to the Senate and had to pointed by Grant; and John Marshall Harlan, be withdrawn when their defeat became obvi appointed by Rutherford B. Hayes. ous. Finally, seven months after Chase's death, The adjectives "conservative" and "lib the President named Morrison Remick Waite, eral" are often applied to Supreme COUli Jus an able lawyer from Toledo, Ohio, utterly un tices. It is notoriously difficult to apply labels known nationally. He had no judicial experi accurately to judges. That difficulty is com ence, and his only political office had been pounded when twenty-first-century labels are one term in the Ohio legislature twenty years attached to nineteenth-century Justices. before. But he had a reputation for honesty Justice Miller is a case in point. Born, like and quiet competence, so the Senate confirmed Lincoln, in Kentucky, he went west, like Lin him. Chief Justice Waite served for fourteen coln, but to Iowa. His political outlook was also years with great honor. He had the almost like Lincoln's. By nature, he was not doctri impossible task of keeping the work of the naire. He was moderate in speech and manner GILDED AND THE SUPREME cau 131 and lUL';'V>Jw."a,ly moderate also. As a Jus before Hugo Black did-that the Fourteenth tice, he was reluctant to urge sudden or major Amendment had applied the Bill of Like Holmes after him, he was defer Rights to the states. Harlan's prescience was ential to the actions of Congress and by his peers; he was regarded by tures, and where there was a conflict between as an eccentric maverick. so-called states' rights and national direction, thinks better of him. he favored the nationaL He was cautious, and The influence of these four Justices was suspicious ofwhat lawyers call substantive due by their of service: process. He was respected by his fellow served years, Miller twenty-eight, Field. and Field and Harlan thirty-four. But then, Justice Field was cut from a dif The Justices of the Gilded ferent cloth. He loved ""."r(",pr~" and pro came from sixteen states. Like so many voked a substantial amount of it. Field was ar other Americans, a number were born and vindictive. "When on the East Coast but moved west, to Ohio or Field hated," said a contemporary, "he hated." Illinois or even California. More than half had And he never or forgot. extensive judicial experience prior to their ap he was a Jeffersonian. He was a pointment. Some also had in elec believer in states' rights, hostile to regulations, tive office as Congressman, mayors, and of the federal government, and or state legislators. one was born to an he believed that property rights were the only immigrant family. There were no Jewish Jus real guarantee liberty. Some of his tices, only two Catholics, no women, and no seemed afraid ofhim. Yet the power African-Americans. of his intellect and the of his person Some trivia notes: Justice Miller was a ality gave him a real influence. It would not be Justice Field was the brother of entirely anachronistic to call him a libertarian. Field of Atlantic Cable fame. He was Justice exhibited a different kind also the uncle of Justice with whom of leadership. He was very learned and me he served. Justice Stanley Matthews was the thodical; as a young man, he had been an ac father-in-law of Justice with whom he tuary. His hobby was mathematical served. Six Justices were veterans of the Civil puzzles, No other Justice was so well read in Justice William Woods was a economics. His knowledge of technical mat Union general. And one of the Justices ters made him an ideal for the Court had the most colorful name in all of American in cases, or in cases involving railroad politics: Lucius Quintus Cincinnatus Lamar! rates or investment returns, He was of a loner, and seemed to be annoyed and at the same time. Of all the V. Issues and Cases Justices, he was the most nai·ve. Finally, there was Harlan, the most In the forty-five years of the Chase, remembered ofthe late nineteenth century Jus . and Fuller Courts, thousands of cases were tices. Harlan was decided. The vast have no modern tent, and his judgments were importance. Even those properly as He seemed to judge by gut have often had their effects modified or instincts were uncanny. He was often in dis even reversed over time by later cases, sent, his dissents in the Civil Cases islation, or constitutional amendment. and in Plessy v. were the of cases can be classified for pur points for Thurgood Marshall's arguments in pose of historical analysis. the earlier Brown liS. Board ofEducation. He held-long of the era, a number of decisions dealt 132 JOURNAL OF SUPREME COURT HISTORY

with the immediate aftermath of the Civil War, took a constitutional amendment to change that particularly with reconstruction and with the decision. In a case with humorous overtones, treatment of those who had risen in rebel lion. the Court briefly struck down the issuance of A second category of cases, later in the pe paper money. The humor arose because the riod, were those involved with the scope and opinion against paper currency was written by application ofthe Civil War Amendments, par Chief Justice Chase-the same man who, as ticularly the Fourteenth. Indeed, Fourteenth Secretary of the Treasury Chase, had issued Amendment jurisprudence has been a recur the paper notes in the first place. The Court ring, even perennial, theme of United States negated the public-access and accommoda law even to the present. A third major area of tions portions of the Civil Rights Act of 1875, the Court's interest, later still, dealt with gov thus rendering it ineffective, after it had earlier ernment regulation ofbusiness. The 1880s and severely restricted the application of the Civil 1890s had seen the first efforts by Congress to Rights Act of 1866 and the Civil Rights Act wrestle with the problems created by the vast of 1870-71. In Plessy v. Ferguson, the Court network of railroads and the new phenomenon gave constitutional protection to the "separate of large corporations. The Interstate Com but equal" formula, which held sway until it merce Commission and the Sherman Anti was finally buried sixty years later in Brown v. Trust Act were the first of these attempts by Board ofEducation. The Sherman Anti-Trust Congress to come under judicial scrutiny. Fi Act was approved by the Court, but it was nar nally, the late-nineteenth-century Justices, like rowly applied to corporations, yet extended to those before and after, grappled with the elu include labor unions. So the hostility of many sive question of drawing the line at which historians can easily be understood. state sovereign authority ended and federal At least superficially, the Court of the sovereign authority began. Gilded Age seems pro-business and anti-labor, Historians generally have not been pro-bigot and anti-civil-rights, pro-rich and friendly to the post-Civil War Courts. One anti-poor, pro-status-quo and anti-reform, pro observer calls the Court under Chief Justice establishment and anti-progressive. The Court, Fuller "the worst in history." In the light of in this view, is always "not getting it," and its the later era of President Franklin Delano Justices are elitist, cowardly, or intellectually Roosevelt's appointees or of the time of the dishonest--Dr perhaps all three! Warren Court, the Court of the Gilded Age This portrait is overdrawn, of course. The seems timid, and its opinions are sometimes Justices ofthis era were notan isolated group of jarring to the modern mind. The Supreme ideologues. They were appointed over a forty Court of the 1880s and 1890s was reluc year span by ten Presidents. They came from tant not only to experiment on its own, but both parties and represented a broad spectrum also to be open to experimentation by state of political ideas and approaches. legislatures or by Congress. For example, in There is no question that the Chase, Waite, the so-called Slaughter-House Cases (cases and Fuller Courts were, in fact, reluctant to then had more colorful names than they do "rock the boat." But there are quite rational now!,) the Court saw no application of the explanations of why this was so. First, the Jus new Fourteenth Amendment to citizens gener tices labored under the shadow of Dred Scoll. ally, narrowly interpreting its scope to the for They harbored in their own memories the rec mer slaves. In Lochner v. New York, the Court ollection of the time the Court had decided struck down progressive legislation passed in too much, and this in and of itself was an im New York limiting bakery workers to a sixty petus to compensate on the side of caution. hour week. Twice the Court found income Second, the nation was sti II reel ing from the taxes in peacetime unconstitutional. It actually effects of a disastrous Civil War, an added THE GILDED AND THE SUPREME cau 133 incentive for timidity. Third, the full of its critics are really of the Fourteenth Amendment was hardly ob they act like twentieth- or vious in an innocent Justices? Why didn't have the vision of If even now, almost a hundred Brandeis and Holmes, the skills ofBJack, ter its ratification, its the fairness of the sophistication of subject of debate, we can the Jus Brennan, the of Marshall, tices of that day if their the writing skills of Frankfurter?" And that is These Justices saw things the way saw them because they seemed··and were were: a group of nineteenth inadequate to the issues of their present. century to be honest in looking The law always behind: It did it does at the issues of their own day when the light now. was not trying to chart a course But it is a mistake to judge the when the destination was not clear: trying to Court of the Gilded as if it had the ad help a free nation find its way, as this Court vantages of all that has since. Some has done. Melancholy Justice: Samuel Freeman Miller and the Supreme Court during the Gilded Age

MICHAEL A. ROSS

In the late I after Justice Samuel Freeman Miller was a man. He was in his his personal and life him. His wife and another, his son-in-law had died from alcoholism, and he was broke and feared that if he died his wife would be left destitute. On the Court he felt surrounded by younger Justices who gravitated to the formalistic doctrines of his rival Justice Stephen 1. Field. And despite his written over 600 majority opinions, it remained unclear what his judicial legacy would be. I be remem that the Industrial Revolution had resulted in bered for his majority in the famous great benefits for society, he worried that the Cases-but that decision had nation had become dangerously divided be had effects that he did not intend. And tween the haves and the have-nots. In Amer on many other issues that mattered to par ica's he wrote in I ''the ticularly those that the indebted river ofthe rich are surrounded the hovels towns of the West, he had of the poor; the Iights of gas and elec failed to convince his fellow Justices as to the for the wealthy their merits of his arguments. All he had to show and festivity shine down upon for his labors in those cases were a string of the tenements of the lowly and the poignant but bitter dissents. 2 and while the more favored few have Like many other Americans who wit all that is best in life ... ,another much nessed the economic transformations class of a few hundred yards away, or of the Gilded Miller also feared for the across the street, may be languishing in future of his he recognized burdened bv poverty, and tortured bv disease MELANCHOLY JUSTICE: SAMUEL FREEMAN MI 13S

Kentucky hill town of Barbourville, and then abandoned medicine for law, which he correctly saw as a faster route to financial and social prominence. He studied law books owned by Silas a lawyer with whom he shared an and was admitted to the Kentucky bar in 1846. In I he moved to Keokuk. became one of the most in the state.4 During the antebellum the one glaring flaw Miller saw in the American sys the institution that to rise to millions. Miller had briefly been a slaveowner in the 1840s, when his first wife, Ballinger, brought four slaves to their He soon freed those slaves, and one reason that he and Although lin in his youth, Samuel Miller grew more melancholy with age. Toward the end of his life Lucy moved to Iowa in 1849 was that an eman he felt isolated on the Court, his wife and daughter cipation movement led by abolitionist Cassius did not speak, and he had serious money worries. His biggest concern, however, was for the future of the failed in that year. In the I country. Miller the a pansion of a campaign for the for which they have not the means to provide Iowa state senate in 1 Miller called slav the remedy."3 It was, Miller believed, an ex ery "the most wrong, and the most plosive situation. prolific source of human misery, both to the Miller's late-life malaise was particularly master and that the sun shines upon in striking because as a young man he had been his circuit around the globe."s irrepressibly about America. Born In 1860, Miller campaigned vigorously in 1816 on a hard scrabble Kentucky farm, for Abraham Lincoln, whose moderate an Miller came of age in the era of self-made position he shared. Both men ar men and women. He grew up in the shadow of that denied blacks and non the illustrious whites the right to and both

'''''!'lUl'-''' ofan American sys that the institution could be tem that allowed men to rise in life, no mat contained in the states where it ex ter how humble their beginnings. It was Clay isted and thereby be put on a course to ulti who first coined the term "self-made man. mate extinction. When the Kansas-Nebraska MiUer shared vision and believed that . Act of 1854 threatened to bring slavery to what the United States was the most democratic, so had been free soil, Lincoln and Miller vehe cially fluid, and economically progressive na opposed it. And when the act I,,,',,,,r"_ tion on earth. It was a society that guaranteed the Whig party along sectional the to rise. As evidence, Miller only had left that party and joined the to look to his own ascent in life. As a ,,",v.m,,v., the 1860 presidential election. Miller, he the hard farming life of his par who had a reputation as one of his state's best ents, went to medical school at orators, crisscrossed Iowa and south worked for a time as a doctor in the western Illinois pro-Lincoln :)I.J<''''''''\O:) 136 JOURNAL OF SUPREME COURT HISTORY

parades, and mass than for an immediate end to the pecu liar institution in the South. The high financial In I with the Civil War under way, and human costs of the war changed his mind. President Lincoln chose Miller to fill one of recognized, Miller later wrote, that the three seats on the United States caused the war, dividing the nation be Court. Lincoln had never met Miller, tween "those who desired its curtailment and but when Iowa's congressional delegation de ultimate extinction and those who desired ad scribed Miller's background to Lincoln, ditional safeguards for its security and told a story that Lincoln certainly would have ation." He asserted forcefully that causes may have contributed to about this war, undoubtedly the overshadow- views, Both were and efficient cause was African who had moved west to free soil to pur As the war turned into a orotracted and sue careers, Miller was also an adamant Unionist who opposed with the to restoring the Union no South and helped to raise Iowa Slavery, Miller felt, "periShed as a ments after Fort Sumter, Lincoln wanted Jus of the bitterness and force of the contlict. tices who would sanction his controversial war When the armies offreedom found themselves measures, and Miller fit the mold.6 upon the soil of slavery could do nothing even less than free the poor victims whose enforced tually filled five seats on the Miller servitude was the foundation of the quarrel." the most steadfast in his of A year and a half of warfare had the President's war changed him from a moderate Free Soiler to a Miller joined opinions that full-blown immediate 9 coin's unilateral decision to blockade Southern Miller and his that the was brietly ebullient The war, after had led not a sovereign nation. cases to his aODointment to the Suoreme Court. Hav Lincoln's wartime measures did not reach the Court until after Appomattox, and with hos to the nation's court, he was living tilities ended, Justices David Salmon proof that the American sYstem worked. And P. Chase, and Stephen 1. Field-Lincoln ap with the pointees all-allowed sensibilities Thirteenth to dictate their views. In famous cases such stroyed as well. It seemed that Miller's youthful as Hepburn v. Ex parle Milligan, optimism about America finally be fully and Cummings v. Slate some of realized. Lincoln's Justices held that his wartime mea Miller's did not last long, how sures had been unconstitutional. Miller, how ever. During Reconstruction and the Gilded ever, concluded that the Chief Age, Miller came to bel ieve that sinister forces Executive's actions were in the North and the South were undermining fjed the national crisis. America's core values. In the North, Miller Miller also embraced Lincoln's wartime feared the power of the capitalists, decision to issue the Proclama whom he believed were their newfound tion. Like Miller had not been an abo wealth to bribe corrupt the courts, litionist before Fort Sumter. In Kentucky, he and distort the economy in a way that destroyed had instead proposals· for gradual the right to rise for many others. "} have met emancipation. In Iowa, he dedicated his ener with but few of a character affecting to stoDDing: the sDread of slavery, rather the public of the whole country," Miller MELANCHOLY JUSTICE: SAMUEL FREEMAN MI 137 wrote in the 1870s, "that has shaken my faith in Much of Miller's anger at the human nature as much as the was driven by a series of cases involving mu and selfish efforts of the nicipal bonds that the Court heard When he referred to during the second half of the nineteenth cen did not tury. The in the Carnegie, Vanderbilt, or the industrialists some 18505, when officials across the coun labeled "robber barons." He the try that the future oftheir benefits r>r..- ....n.r.,t.nn 1n towns or cities upon railroads. Fear stead, he directed his ire at the class ing that their towns would be left behind if of men who traded in Wall Street fi they did not secure a railroad line, small-town nanciers, and bondholders, whom mayors and councilmen feverishly courted he saw as little from the plantation railroad Increasingly, they made owners of the old South. To Mil.ler, bondhold the fateful decision to invest public monies in who lived off the private railroad Towns sold mu nicipal bonds to investors and then used those no agriculture," funds to stock in railroad corporations that nrnnw'p nothing."]] to build lines to their municipality.

Miller's disgust with Wall Street financiers and speculators, whom he thought were eco nomic parasites who lived off the labor of others, is reflected in his opinions during the Gilded Age. Pictured is a panic on Wall Street in 1884. 138 JOURNAL Of SU COURT HISTORY

Sometimes the issuance of these munici Western towns to escape their debts to bond- bonds was legitimate and Field believed, were an of officials caught in the this mobocratic instinct. deci mad scramble to lure railroads failed to follow sion that failed to uphold the sanctity of the the letter ofthe law. In some cases they ignored bonds would both undermine the fluidity of state constitutions and municipal charters that national capital markets and unleash a local governmcnts from 111 of "repudiation" that would sweep across the In other cases, faiJed land. 13 to put bond initiatives to a popular vote or cx Miller thought otherwise. In a lOng se ceeded debt limitations. ries of angry and usually lone he ac When the economic Panic of 1857 cused his Brethren of in order many of the railroad to serve the bondholders. In the famous case that had promised to lay the towns and for the Court cities found themselves with massive debts its own rule that it should defer and little to show for it. taxpay to state courts' of state statutes ers now claimed that they were forced and constitutional The in to pay the debt on bonds their public offi Gelpcke ignored a rul by Iowa's Supreme cials had issued illegally or without their con Court that bonds issued to fund rail sent. Meanwhile, investors in New York and roads violated state law and were therefore in elsewhere who had purchased the bonds de valid. In upholding the of Dubuque's manded to be paid, even when, as was often bonds, Justice Swayne declared for the major the case, they had bought the bonds at 25 per ity, "We shall never immolate truth,justice, and cent ofpar value know! the law. because a state tribunal has erected the been issued with dubious altar and decreed the sacrifice. towns and cities across the Miller was citizens held angry, anti-bondholder mass meetings and launched the lawsuits that the Court." 15 For would fiJI the Supreme Court's docket for the municipal bonds had to be no next two decades. 12 what, even if their issuance violated state and When municipal-bond cases reached the municipal constitutions and opened Supreme Court, the Court's almost the floodgates to The Court's posi always sided with the bondholders. Two Jus tion, Miller later wrote, was "worthy of admi tices in particular-Lincoln appointees Field ration of all who wish to profit from the frauds and Noah Swavne-becal ofmunicipal officers. Miller thought it was not unreasonable to investors to deter mine throw!h the record whether bonds rich and poor as a had been issued before they pur Field believed the enormous wealth and ornate had to send emis mansions of the Gilded served as incen saries to Western towns to do so. Otherwise, tives for others to and he became a zeal the citizens of those towns could wake up ous defender of Field feared one to find that their officials that the envious masses try to use their had bound them to pay millions of dollars in state or the federal government to debts to fund investments in pri do what a mob otherwise do: take from vate had never approved. "It the rich and to the poor. For Field, the makes every man's property," Miller said in Court was the last line of defense against the another case, "within the limits of the city, The efforts being made by the common property of the community, and MELANCHOLY JUSTICE: SAMU FREEMAN MILLER 139

While his Brethren sided with capitalists during the Gilded Age, Miller grew increasingly concerned about the gap between rich and poor. He was particularly annoyed that the Court kept ruling in favor of the validity of municipal railroad bonds even though they did not payoff for many towns. converts the against his into a the art of influencing men. They have unlim member ofone ofthose Shaker or French com ited means for are worth fifty millions of munities into which the individual merges his dollars, and are not illiberal in the use of into those of the association." 17 them." In the he "all that As he issued one bitter dissent after an think worth fighting for they will win."19 other in bond cases, Miller wondered why the Throughout the 1 as the Court re- Court kept such cases when the result upheld the validity of municipal rail was always a forgone conclusion. "Our Court road bonds, Miller grew disheart or a of it," Miller wrote, "are if not ened. "It is in vain to contend with judges who monomaniacs, as much and fanatics on have been at the bar advocates for years this as is the most Mahe ofrailroad companies, and of associated modan in to his religion."18 he " he observed in 1 "when they are called even alleged that the bondholders had bribed upon to decide cases where such interests are in some ofhis fellow Justices. "Certain members contest ... All their training, all their of the Court," he wrote, "are are from the start in favor of those who need in favor of enforcing bonds, at the expense of no such intluence."zo Tired ofwriting the same all other rights. The bondholders have npt'~{\I1" opinions over and over again, Miller access to certain whose influence on adopted the of the bench is The un without writing an opinion. His fellow Jus derstand men 1 have ever known tices knew his even before he pen 140 JOURNAL SUPREME COURT HISTORY

Miller's wife, Eliza, relished her role as a Justice's wife in the 1860s because she found herself on top of the social hierarchy. But by the 1870s, when Washington society began featuring the newly wealthy, the Millers had a hard time reciprocating invitations on a judicial paycheck. to paper. As a in important cases such vate in Keokuk real estate. But after as Railroad aloe and the great Panic of I the city's bonded debts Olcott v. the in which the Court impeded that progress; Keokuk began to held bonds to be valid that a state court into obscurity, and the value of Miller's hold- had held "ft is the most matter concerned with my Also adding to Miller's distaste for the judicial life," Miller wrote about the capitalists was his own status When bond cases, "that I am compelled to take Miller first arrived in Washington in the 18605, in a farce whose result is invariably the same, Court Justices and their wives stood namely to more to those who have already, nearthe top ofthe social pyramid, and and to take away from those who have little the Miller's second wife Eliza enjoyed the social little they have."21 Miller's position them 22 Part of Miller's distaste for bondholders Eliza was considered the expert among Jus stemmed from the fact that he hailed from tices' wives on the social etiquette and pro Keokuk, an Iowa town saddled with mas tocols of the Court. On each Monday, for ex sive railroad-bond debts. As a private attorney, . she instructed the wives of the other Miller had handled suits launched by Iowa citi Justice's to be home in "street costume" so zens challenging the bonds. To a certain extent, that elite could call. The Millers he also blamed the bondholders for destroying attended by Sena his own capitalist dreams. Miller had moved tors, Cabinet and famous men such to Keokuk from in the belief as Civil War General William Sherman. one it would become a great rivaling In the 18705, began to Chicago and St. Louis. With this in mind, he In as the city invested much of the money he earned in pri shed its image as a backwater. After MELANCHOLY JUSTICE: SAMUEL FREEMAN MILLER 141

Congress initiated a series of improvements to diers, surrounded the meeting hall, broke down the city's infrastructure, Washington became the doors, and killed the black and white del glamorous. Newly rich capitalists, who liked egates hiding inside. Thirty-four blacks and the fact that the city did not have a closed upper three whites died. The New Orleans Riot, as class, came to town, built mansions, and threw it was called, and a similar riot in Memphis extravagant soirees. Miller despised these par twelve weeks earlier galvanized Miller and venus, who, he said, "came to Washington with many other Northerners against President An nothing but money to commend them, show drew Johnson's lenient Reconstruction policies ering expensive gifts on their friends and tak and helped bring about military Reconstruc ing place only by virtue of wealth."23 The tion directed by Congress.26 capitalists' homes dwarfed the Millers' Mas In his private correspondence, Miller sachusetts Avenue townhouse, their parties lashed out at his ex-Confederate brother-in made Samuel and Eliza's efforts look pedes law, Texas lawyer William Pitt Ballinger, who trian, and on a Justice's salary of $10,000 a claimed that the New Orleans riot was the work year, the Millers could not keep up with the of thugs and that the gentlemen of the South capitalist Joneses. In fact, the Millers spent repudiated such attacks. Miller challenged most of the second half of their lives deeply Ballinger to offer a shred of evidence that in debt. 24 leading Southerners opposed the widespread Northern capitalists were not the only violence against blacks and white Unionists. threat to American values that Miller saw. In "Show me how you disapprove of it," he de the South, Miller loathed the unrepentent ex manded. "Show me a single white man that has Confederates who unleashed a wave of reac been punished in a State for murdering a negro tionary violence against the former slaves and or a Union man. Show me any public meeting their white Republican allies. Miller had hoped that has been had to express indignation at such the Civil War and the Thirteenth, Fourteenth, conduct. Show me that you or any of the best and Fifteenth amendments would usher in a men of the South have gone ten steps to pre new economic, political, and legal order in vent the recurrence of such things. Show me the South, one that would protect the freed the first public address or meeting of Southern men's right to rise. Instead, he watched with men in which the massacres ofNew Orleans or anger as the Ku Klux Klan, the Knights of Memphis have been condemned." Miller knew the White Camellia, and other violent groups that no such evidence existed. "You may say helped restore total white supremacy in one that there are two sides to the stories of Mem Southern state after another. Southern whites, phis and New Orleans," he concluded. "There Miller wrote, with their "fiendish hatred for may be two sides to the stories, but there was the negroes," proved themselves to be "men but one side in the party that suffered at both incapable of forgiving or learning."25 places, and the single truth is undenied that not Miller was particularly angry about events a rebel or secessionist was hurt in either case, that transpired during Reconstruction in New while from thirty to fifty negroes and Union Orleans, the South's largest and most cos • white men were shot down precludes all doubt mopolitan city. In July 1866, an armed white as to who did it and why it was done."27 mob in New Orleans attacked a state con Miller was also angered by the obstruc stitutional convention that had been called tionist legal campaign white lawyers in New by the Reconstruction Governor. The conven Orleans launched against the state's biracial tion's delegates were both black and white, government. After military reconstruction be a fact that infuriated ex-Confederates. The gan, Conservative lawyers in the city used the mob, which included many New Orleans po courts to thwart the Reconstruction govern lice officers who had been Confederate sol ment's ability to bring social and economic 142 JOURNAL OF SUPREME COU HISTORY change to Louisiana. Ex-Confederate attor Amendment to undermine the efforts of neys who had benefitted from President John- Louisiana's biracial state government. AI- son's liberal launched numerous law the amendment's framers had intended suits challenging the Reconstruction govern that it the freedmen and women from ment's efforts to tax, levees, build rail racist white state governments, such as those roads, sanitation, and borrow money. that President Johnson had allowed to operate John Archibald Campbell, a man Miller after the war, in hands the loathed, led the ex-Confederates' "rule or ruin" and from and due process became weapons with which

to attack I\.CjJUUlIl.:al legislation. In a case liti United States Supreme Court until he gated in state court, for example, his in 1861 to join the that a Louisiana law where he served as Jefferson Davis's Assistant in theaters denied New Orleans theater Secretary of War. 1869, Campbell was an owners the right to run their businesses unfet embittered man who remained that tered government intrusion-a right he had been for five months at the bell claimed was from state laws by end the war because it was thought he was the Fourteenth Amendment's or Im part ofthe Lincoln assassination plot After the munities Clause.30 war, he moved to New Orleans, where he made In the famous opposing the state government the made a similar argument in central theme ofhis career. Campbell filed one federal court in that ultimately lawsuit after another to stop the resulted in Miller's most important-and economic development opinion. tion of the schools, public accommoda Cases were born out of tions laws, and public health measures.28 opposition to an act by Miller desoised Campbell for Louisiana's biracial legislature in 1869 that the Confedel was to regulate the noxious for to give up the terhouses of New Orleans. Modeled on sim "I have neither seen nor heard of any action ilar laws that had been passed in New York, since the rebellion which Philadelphia, and other cities, the act was aimed at the breach he contributed all of New Orleans's butchers to cross the so much to Miller wrote "He River and to pay a small fee to has made himselfan active leader of the worst slaughter their animals in a new, privately branch of the New Orleans democracy. Writ owned, state-of-the-art Their their cases butchered meat then had to be be in our and showing all the evidences of fore it could be sold in the a disconcerted and bitter old man, filled with stalls. Such regulation was long overdue in the disappointments of an unsuccessful parti a infamous for its squalor. Pre " He felt that Campbell's lack viously, the slaughterhouses had operated in should be punished. " I think no crowded neighborhoods, and the mass of gory man that has survived the rebellion is more sat into urated with its spirit ... he deserves all River, where the punishment he ... can receive, not so much it from which New for joining the rebellion as for the Orleans drew its water Many health with which he continues the ,,29 officials blamed the galling to Miller was cholera and New bell's to use the new Fourteenth Orleans almost every summer. In 1853 alone, MELANCHOLY JUSTICE: SAMUEL FREEMAN MILLER 143 yellow fever and cholera killed 10,000 New lowed events in Louisiana, knew exactly what Orleans residents. 31 Campbell was up to, and did not buy Camp New Orleanians would normally have bell's claims that he was fighting for individ cheered the passage of the law. Repeated ef ual, Jacksonian-style liberty. Miller found it forts had been made over the years to move the inexplicable that the Fourteenth Amendment, slaughterhouses across the river. Moreover, the which he considered a means of protecting butchers had never been a well-liked group. African Americans in the South, might be used They had long conspired to keep prices high to strike down a sanitation law with such ob and to prevent competitors from entering the vious social benefits. Even with "the most ca trade. But in 1869, when the butchers went to sual examination," Miller argued in his major court to challenge the new slaughterhouse law, ity opinion, "no one can fail to be impressed they became heroes to many whites who op with the one pervading purpose of' the Four posed any law, no matter how beneficial, that teenth Amendment. "[WJe mean the freedom had been passed by a state legislature that in of the slave race, the security and firm estab cluded blacks and Yankees. lishment of that freedom, and the protection of In his lawsuits on behalf of the butchers, the newly-made freeman and citizen from the Campbell portrayed his clients as patriot citi oppressions of those who had formerly exer zens and lovers ofliberty oppressed by a heavy cised unlimited dominion over him." The Four handed legislature. He likened the slaughter teenth Amendment was not, Miller concluded, house legislation to the onerous regulations designed to thwart a valuable health measure of seventeenth-century European monarchies that removed slaughterhouses from a crowded that colonists had come to America to escape. city.33 The "right to exercise a trade" unfettered by But in one of the great ironies of consti government intmsion, Campbell claimed, was tutional history, Mi Iler's repudiation ofCamp one ofthe fundamental rights that the Founding bell's arguments in Slaughter-House inadver Fathers later fought and died for in the Revolu tently gave Campbell his greatest victory. tion. Now, he asserted, the Fourteenth Amend Campbell had purposefully placed the Repub ment's Privileges or Immunities Clause defini lican Justices of the Supreme Court in a diffi tively protected this fundamental right from cult position. If the Justices sided with Camp autocratic state statutes such as the slaughter bell and accepted his expansive reading of house law. He even went as far as to suggest the Fourteenth Amendment, they would hu that the tme purpose ofthe Fourteenth Amend miliate the biracial legislature of Louisiana ment was to protect white citizens from laws and arm critics of that legislature who alleged passed by legislatures that included former that blacks were too ignorant and corrupt to slaves who "were liberated without preparation adopt legislation that could pass constitutional for any political or civil life." The white press muster. If, however, they ruled against Camp in New Orleans cheered Campbell on as he bell, they would constrict the meaning of the used the hated Fourteenth Amendment to fight Fourteenth Amendment in the process. the equally hated biracial legislature by utiliz In order to defeat Campbell's arguments ing the amendment, they said, as "one would and validate Louisiana's Republican legisla use one poison as an antidote to another."32 tors, M iller's majority opinion limited the When the Slaughter-House Cases reached meaning of the Fourteenth Amendment's the Supreme Court in 1873, however, Camp "privileges or immunities" clause by argu bell did not find a receptive audience in Jus ing that the one pervading purpose of Sec tice Miller. Miller, a former doctor who rec tion One of the amendment was to protect ognized the need for public-health measures African Americans from discriminatory state such as the slaughterhouse law, had closely fol laws. It did not, the Court concluded, protect 144 JOURNAL OF SUPREME COURT HISTORY basic those enumerated in the Miller's Slaughter-House opinion against itself Bill of and other fundamental rights, by it as a defense of states' rights, segre such as the white butchers' right to pursue an gation, and white supremacy. while Camp by state gov bell lost the he won his r"trl'lar"~~ ernments. For protection of those rights, cit war. 34 izens would still have to look to their state Miller's majority in the Slaughter- constitutions. so deciding, Miller hoped House Cases has received withering criticism to preserve the federal system while . over the years. Some scholars have even argued protection for black civil rights. He wanted that the case was a deliberate by Miller the biracial Reconstruction govern to undermine African- ment in Louisiana from legal as Americans' constricting the saults and to uphold the ability of states to of the Fourteenth Amendment. The and health that House such scholars believe, comprised property. Four years after the first step in the Court's infa the mous retreat from Reconstruction that culmi of 1877 brought Reconstruction to an end and nated in 1896 with Plessy v. the restored racist Southern Democrats to power. "doctrine of separate but equal," and the ad These new but reactionarY governments turned vent of the Jim Crow era35

In the 1883 Yarbrough case, Miller and the Court held that a Klansman who had beaten a black man for voting in the 1882 election could in fact be prosecuted as a private citizen. This ruling did not hold up in later cases. MELANCHOLY J SAMU FREEMAN MI 145

Miller's critics also point out that in ad cuted Yarbrough in federal court, and he was dition to authoring the in the sentenced to two years in prison, awvm:er··nl"iu.;;e Cases, he the ma filed an for a writ of jority opinion in the Civil Rights Cases (1883), habeas corpus pointing to the recent prece In that decision, the Supreme Court declared dent in the Civil Cases, claimed that unconstitutional a federal law that made it a the Fifteenth like the Fourteenth misdemeanor for individuals to deny others access to restaurants, and other ernment power to citizens for public accommodations because of their race, violations, The federal govern Miller all of the other Justices ment could state but not John Harlan in holding that the Thirteenth and Klansmen such as Yarbrough, Fourteenth Amendments and their enforce Justice Miller and a unanimous Court dis- ment clauses could not reach discrimination In Miller gave a broad in citizens, Those the Court to Article I, Section 4 of the Con decided, only reached state laws and actions36 with the From a century it is difficult to defend Miller's vote in the Civil places, and manner of holding elections for Cases. If he was the staunch ad senators and " Laws that pro vocate of the rights of African Americans that tected voters from violent intimidation even he believed he was, he would have joined Har by citizens, he determined lan's famous and courageous dissent. Miller the "manner" of an election. Miller also re was a moderate a radical Yarbrough's contention that the Fif like Charles Sumner or Thaddeus Stevens teenth Amendment gave no affirmative and his concurrence in the Civil Rights Cases to African Americans to vote. The Fifteenth reflected his limitations on racial issues as well Amendment, he proprio that he out substantially confer on the negro the right to opinion, vote, and Congress has the power to protect Miller's concurrence in the Civil Rights and enforce that right"37 Cases did not, mean that he had aban Miller's broad interpretation in doned his commitment to defending African of Article I, Section 4 and of the Fifteenth Americans' economic and political rights. Amendment stood in contrast to the conser Miller believed strongly that ifthe federal gov vative construction he gave the Fourteenth ernment protected African Americans' to Amendment in the Cases, vote, African Americans would be able to pro The difference between the two cases stemmed oftheir other rights themselves from his concern that the Fourteenth Amend their political rather than the courts. ment, broadly had the

One year after the Civil alter dramatically the federal system, VC'L.a.LI"C, often-overlooked Ex parte he believed, the purpose of the Amendment made this explicitly. The case involved , was to African Americans almost ex a Georgia Ku Klux Klansmen named clusively, the amendment's had to be who to a Klan interpreted or it could lead to all manner tion known as the Pop and Go Club. Yarbrough ofjudicial mischief. He feared Justice and his cronies had ridden in to the Field and the other conservatives on the Court home of an African American named Berry the ability to strike down valuable state regu Saunders whom they beat senseless as punish latory laws that had to do with race ment for his voted in the 1882 election. in order to rights that had their basis The Justice successfully in laissez-faire ideology and natural law, The 146 JOURNAL OF SUPREME COURT HISTORY

Fifteenth Amendment carried no such risks, as on his fellow Justices' commitment to African its language explicitly limited its effects to mat American suffrage. Although the Justice De ters involving race and voting rights. Thus, in partment continued to prosecute voting rights Yarbrough, Miller was able to give expression cases in the 1880s, few resulted in convictions. and effect to his genuine concern for African In the 1890s those efforts dwindled, as North Americans' voting rights without dramatically erners grew increasingly tired of the "South altering the Constitution38 ern question." Despite his forceful conclusions In Yarbrough, Miller went on to describe , about the need to save the republic from North the dire threat that both white supremacists in ern corruption and Southern violence, Miller's the South and wealthy capitalists in the North opinion in Yarbrough was later disregarded. posed to American democracy. "If the recur In 1903, thirteen years after his death, the rence of such (violent) acts as these prison Supreme Court in James v. Bowman simply ers stand convicted of are too common in one ignored Yarbrough and held that Congress had quarter of the country and give omen of dan no constitutional authority to punish private in ger from lawless violence," Miller wrote, "the dividuals for violent crimes against black vot free use ofmoney in elections, arising from the ers. Miller had hoped that with their voting vast growth of recent wealth in other quarters, rights protected, black voters might someday presents equal cause for anxiety." "No lover of be embraced by the leaders of both parties. By his country," he warned, "can shut his eyes to the end ofthe nineteenth century, however, few 4 the future danger from both sources."J9 African Americans voted at a11. ! In his private correspondence, Miller ex Although Miller continued to serve on the pressed his hope that the Yarbrough decision Court until the end of his life, his mood grew would convince white Southerners to accept increasingly gloomy. Even though he held a po black voting rights as a permanent feature of sition of prominence, Miller had not become political life in the South, and that white politi rich, as he had once thought he surely would. cians, in turn, would begin to court black votes. Instead, he struggled to pay his creditors and, Once Democratic politicians appealed to black for a time, he had to rent his Massachusetts Av voters, Miller believed, black citizens would enue townhouse and all of its furnishings to a quickly be assimilated into the polity and differ wealthy Congressman from New York while he little from any other interest group. The poli moved to an inexpensive hotel. Despite these tics of race that defined the Democratic party efforts, Miller remained broke, and he knew and the South would fall away. Until that time, that if he died, he would leave his wife pen he wrote in [884, the nation was left "at the niless. His wife and his daughter fought in mercy ofthe combination ofthose who respect cessantly over family matters, and his hard no right but brute force, on the one hand, and drinking son-in-law George Corkhill died ofa unprincipled corruptionists on the other."4o stomach hemorrhage, leaving his family with Considered together, Miller's Yarbrough doubts and debts. opinion and his concurring vote in the Civil In his final years, Miller also watched for Rights Cases reflect his belief that if the gov lornly as Justice Field, the great defender ofthe ernment protected African Americans' voting capitalists, became the most influential jurist rights, black citizens would be able to protect on the Court. It would be Field's vision for the their other civi I rights using the ballot rather Fourteenth Amendment, not Miller's, that the than the federal courts. Miller put his faith for Court would later embrace in Lochner v. New achieving equality in the political process. In York. And Miller's beloved Republican party retrospect, it is clear that he relied too much also seemed to have changed for the worse. on the national government's ability and con Originally committed to economic mobility for tinued willingness to protect black voters and all, its purpose now seemed to be protection MELANCHOLY J SAMUEL FREEMAN MILLER 147

of the gains made the few. His only solace system did not unfairly favor the wealthy and that came from his belief that he had been the talent was more important than wealth in achieving suc dicial voice of the common man, particularly cess. For a more detailed description of this portion of Miller's life, see Michael A. Ross, "Hill-Country Doc Westerners burdened by bondhold lor: The Early Life and Career of Supreme Court Juslice ers and black voters ~v'''~>,v~ Samuel F. Miller in Kentucky, l816-1849," Filson Club the South. Even His/ory Quarterly 71 (October 1997): 430-62. to Mi lIer that his 5MiHer quote from speech reported in the Keokuk lieved that during his July 17, 1856. 6For a much more detailed rlp':~nntf(mof Miller's appoint he had fought the ment to the Supreme Court, see Michael A. Ross, "Justice many of MiUer's admonitions seem nrr,nt,pt. for Iowa: Samuel Freeman Miller's Appointment to the Lawless violence did playa critical role in the Cnited States Supreme Court During the Civil War," An disenfranchisement of black voters that lasted nals a/Iowa 60 (Spring 2001): ! 11-38. until the 1960s. And many A mericans continue 7The Prize Cases, 67 U.S. 665 (1863); The Cornelius, to share Miller's concern that the free use of Wallace 214 (1865). Hepburn v. Griswold, 75 U.S. 603 (1870); Knox money in elections undermines the democratic v. Lee, 79 U.S. 457 (1871); Ex parte Milligan, I Wallace 2 42 process (1866); Cummings v. Slate a/Missouri, 71 U.S. 277 (1866); On October 10, 1890, Miller suffered a Ex parle Garland, 71 U.S. 333 (1866); Exparte McCardle, stroke while 74 U.S. 506 (1869). partially for a few more 9The best analysis of Miller's views as to the causes of the When a doctor urged him not to not to speak war can be found in his lengthy discussion of the matter in the Slaughter-House Cases, U.S. 36, 68 (1873). so as not to strain his brain, Miller that IOMilier William Pit! Ballinger, April 28, 1878, box that was "a for you must think that 2. folder 3, Samuel Freeman Miller Papers, Library of when 1 talk 1 use my brains." His condition Congress. and he died on October 13. As he II/bid (emphasis in original). he died no income to sup- 12For a more detailed discussion of these events, see Michae I A. Ross, "Cases of Shattered Dreams: Justice his wife. His cash assets consisted of the Samuel Freeman Miller and the Rise and Fall of a Mis sale ofhis law books and the balance due on his sissippi River Town," Annals 0/Iowa 57 (Summer 1998): salary. After his an appeal 111 201-39. the American Law Review seeking donations UTile best analysis ofStephen Field'sjudicial and polit for Eliza. ChiefJustice Melville Fuller accom ical ideology can be found Paul Kens, Justice Stephen Miller's casket back to Keokuk, where Field: Shaping Liberty from the Gold Rush to the Gilded Age (Lawrence, Kans., 1997). pnnPlrprv 43 he is buried in Oakland 14Gelpcke v. Dubuque, 68 U.S. 175,205 (1864). 1568 U.S. at 206. 16Humbo/dt Township v. Long, 92 U.S. 642, 648 (1876). ENDNOTES 17Meyer v. City o/Muscatine, 68 U.S. 384, 395-96 (1864) ISMilier to William Pitt Ballinger, January 13, 1878, box IMuch of this article is adapted from my book Justice folder 3, Samuel Freeman Miller Papers, Library of of Shattered Dreams: Samuel Freeman Miller and Congress. the Supreme Court During the Civil War Era (Baton 19Miller to William Pitt Ballinger, August 27, 1868, box Rouge: LOUIsiana State University Press, 2003). I have . I, folder 5, Samuel Freeman Miller Papers, Library of footnoted my own work only where I think a reference Congress. might be of interest to the reader. 20M iller to William Pill Bal linger. December 1875, box 2Slattghter-House Cases, U.S. 36 (1873). I, folder II, Samuel Freeman Miller Papers, Library of 3Samuei Freeman Miller, "The Conflict in the Country Congress. Between Socialism and Organized Society," reprinted in 21MiJler to William Pitt Ballinger, January 13, 1877, box the appendix of Charles Noble Gregory, Samuel Freeman 2, folder I, Samuel Freeman Miller Papers, Library of Miller (Iowa City, Iowa, L907), 165-67. Congress; Railroad Company v. County o/Otoe, 83 U.S. 4As a member ofBarboufville's Debating Society, fOf ex 667 (1873); Olco/l v. Ihe Supervisors, 83 US. 678 (1873). ampJe. Miller argued forcefully that the American eco 22Miller's first wife died of consumption 10 1854. 148 JOURNAL OF SUPREME COURT HISTORY

23Miller quoted in Charles Fairman, M,: Justice /Yliller and no longer handling the casc. See Ross, "Obstructing Re the Supreme Court, 1862-1890 (Cambridge, Mass .. 1939), construction," 249-50. 427. 3lFor a more detailed discussion ofthe context ofthe case, 24For good descriptions of Washington society during see Michael A. Ross, "Justice Miller's Reconstruction: The the Gilded Age and the Millers' role in it, see Kathryn Slaughter-House Cases, Health Codes, and Civil Rights in Allamong Jacob, Capital Elites: High Society in Wash New Orleans, 1861-1873," Journal o(Southern History ington, D.C., After the Civil War (Washington, D.C., 64 (November 1998): 649-76. See also Ronald M. Labbe 1995), 69, 218; Madeline Dahlgren, Etiquette of Social and Jonathan Lurie, The Slaughterhouse Cases: Regula Life in Washington (Lancaster, PA., 1873). 121; Ran tion, Reconstruction, and the Fourteenth Amendment dolph Keirn, Society in Washington: Its Noted Men, (Lawrence, Kans., 2003). Accomplished Women, Established Customs, and No 32Ross, "Justice Miller's Reconstruction," 666; Ross, table Events (Harrisburg, Pa., 1887). 122-24, 217: E. "Obstructing Reconstruction," 250; The Slaughter-House N. Chapin, American Court Gossip; or, Life at the Cases, 83 U.S. 36,45,48,60 (1873). National Capitol (Marshalltown, Iowa, 1887), 249; Ben 3383 U.S. at 64, 7 J; Ross, "Justice Miller's Reconstruc Perley Poore, Perley's Reminiscences of Sixty Years in tion," 667-68. the National Metropolis, vol. 2 (Philadelphia, 1886),94, 34Ross, "Obstructing Reconstruction," 25 I-53; Lurie, 261-63,269,299. "Ex-Justice Campbell: The Case of the Creative Advo 25Millerto William Pitt Ballinger, August 29, 1869, folder cate," 17-30. 6, box I, Samuel Freeman Miller Papers, Library of 35Pless), v. Ferguson, 163 US. 537 (1896). See, e.g, Congress. Richard L Aynes, "Constricting the Law of Freedom: 26For a good account of these events, sec James G. Justice M iller, The Fourteenth Amendment, and the Hollandsworth, An Absolute Massacre: The New Or Slaughter-House Cases," Chicago-Kent Law RevieIV, 70 leans Race Riot of July 30, 1866 (Baton Rouge, La., (1994): 627-88; Robert J Kaczorowski, The Politics of 2001 ). Judicial Interpretation: The Federal Courts, Depart 27Miller to William Pitt Ballinger, February 6, 1867, box ment ofJustice and Civil Rights, 1866-1876 (New York, I, folder 4, Samuel Freeman Miller Papers, Library of 1985), 143, 149. Congress. 36The Civil Rights Cases, 109 US. 3 (1883). 28For a detailed discussion ofCampbell 's obstructionist le 37Exparle Yarbrough, 110 U.S. 651, 651-56, 658 (1883). gal campaign, see Michael A. Ross, "Obstructing Recon 38For a more detailed discussion of this point, see Ross, struction: John Archibald Campbell and the Legal Cam Justice of Shattered Dreams, 247-51. paign Against Louisiana's Republican Government, 1868 39 110 U.S. at 657, 666-67. 1873," Civil War History, 49 (September 2003): 235-53; 40MiJler to William Pitt Ballinger, November 23, 1884, Michael A. Ross, "Resisting the New South: Commer box 2, folder 9, Samuel Freeman Miller Papers, Library cial Crisis and Decline in New Orleans, 1865-85," Amen· of Congress. call Nineteenth Century History, 4 (Spring 2003): 59-76; 4 IJames v. Bowman, 190 U.S. 127 (1903). See also Ross, Jonathan Lurie, "Ex-Justice Campbell: The Case of the Justice of Shattered Dreams, 250; Robert M. Goldman, Creative Advocate," Journal o[Supreme Court History 30 Reconstruction and Black Suffrage: Losing the Vote (2005): 17-30. in Reese and Cruikshank (Lawrence, Kans., 2001), 123, 29Miller to William Pitt Ballinger, October 15, 1877, box 134. 2, folder 2, Samuel Freeman Miller Papers, Library of 42Lochner v. New York, 198 U.S. 45 (1905). See also Congress. Paul Kens. Judicial Power and Reform Politics: The 30Campbell made this argument in 1869 in the Fourth Dis Anatomy of Lochner v. 'New York (Lawrence, Kans., trict Court in Orleans Parish. The case later became Joseph 1990). v. Bidwell, 18 La. Ann. 383 (1876). By then, Campbell was 43Ross, Justice of Shattered Dreams, 256. Justice Stephen Field of California

PAUL KENS

Stephen Field sat on the U.S. Supreme Court for thirty-four years, from 1863 to 1897. He outlasted eight President and three Chief Justices. His time on the Court ran from the Civil War through the Gilded Age and came within a breath of the twentieth century. There is a lot to say about Stephen Field, but I willi imit my comments to just two things. First, I would like to summarize Field's oir. In fact, it was really more a tall tale. But I experiences in California. Field was a true pi would like to tell it anyway. oneer. As a young adult, he joined the wave of Moses recalled that he was working a min people who came to California during the Gold ing claim in the mountains near Marysville, Rush of 1849. His experiences in the Califor California. One time, when Moses was visiting nia frontier left an indelible impression. the nearest mining camp, he was tapped to sit The second thing I would like to do is on ajury. On one side of the dispute was an old explore a few ways in which his experiences miner who, after being stricken with scurvy, in early California shaped his thinking about staked his claim according to traditional min the law and the Constitution. I Field is usually ing code and went back to the mining camp thought of as an arch conservative, but I would for treatment. On the other side was a group of like to suggest that the ideas to which he sub accused claim-jumpers. scribed, especially his ideas about economic The trial took place in a saloon and gam liberty, were actually revolutionary in the sense bling house called the Striped Tent. When it that they rejected tradition and gave an entirely began, the justice of the peace ordered the new shape to the way we think about our gov gambling to cease and opened court at a big ernment and our social order. gambling table in the middle of the estab lishment. Each side presented its case, and then the gambling resumed while the jury I. Field's Early Days in California went into another room to deliberate. It didn't Some time ago, while digging through old doc take the jury long find in favor of the old uments in the Bancroft library, I ran across a mll1er. memoir ofa Cal ifornia pioneer named Wi lliam But that didn't end the dispute. Hearing Moses. It was really more a story than a mem the verdict, the claim-jumpers' lawyer leaped 150 JOURNAL OF SUPREME COURT HISTORY

cocked it, and placed its muzzle at the lawyer's head-and Hissed at him, the command, "Eat those words, or I will send you to Hell." The claim jumpers' attorney meekly said "I eat my words" and everyone returned his pistol to his holster. The judge then turned to the claim jumpers and told them "If you or your lawyer are here at here at sunrise tomorrow morn ing, you will never leave this camp again.-Court is closed."

That justice of the peace, Moses tells us, was Stephen 1. Field. Tall though the tale mayor may not be, it captures the moment-and perhaps the self image of California's pioneers. It is also not much different from accounts that Field him self tells in his memoirs. His story starts in 1849, when he left the security of his brother's law practice in New Field graduated from Williams College in 1837 and then studied law in New York with his brother David York City and joined thousands in the rush Dudley. He joined his brother's practice after passing to California's gold country. After landing in the bar, but then was drawn by the Gold Rush and San Francisco, Field made his way to a set left for California in 1849. tlement at the confluence of the Feather and Yuba rivers, near the northern gold fields, Field and the other settlers who first arrived in the from his seat, shouting that he would advise area organized a town and named it Marysville. his clients to resist the verdict to the hilt of a Since California still operated under Mexican knife. The jury foreman reacted by pulling a law, they elected Field as Alcalde, a Mexican revolver out of its holster and asking the judge office that had characteristics of both mayor whether he intended to protect the jury or if the and judge. He later became justice of peace jury must protect itself. In an instant, Moses re and, for a short time, was literally the only law called, there were a least twenty revolvers and northwest of the Yuba. other pistols of various kinds drawn. But the As Alcalde, Field introduced United thing about the incident that most impressed States notions of procedural justice into his Moses was the judge's reaction. Let me read courtrooms. He called grand juries, impan how Moses describes it: eled juries, and appointed lawyers for defen The judge said he would not al dants. Yet he also administered justice and dis low such language by the attor cipline with an innovation and flair that could ney and would Himself protect the have only taken place in an untamed envi Jury. And-doing what I never saw ronment like Gold Rush California. For ex before-drew from his pocket an ample, he sometimes ordered that convicted eight-inch Bowie knife, placing it thieves be banished or publicly whipped. He back between his teeth. Then from his explained that, "because jails were not avail holster he drew a Navy Colts revolver, able, It was the only way they could be saved JUSTICE STEPHEN OF FORNIA 151 from " Yet Field also seemed to take ria in the early when a man or woman some in it. "There is something so de- could simply pack a shovel and pan and set about a public he that off to the fields. But the did not I have never known a man thus whipped to last for the mid-l gold had be have stayed in town longer than he could gun to play out, at least the easy pickings that help." could be panned from the streams and creeks. According to his own The was a Field's brand ofjustice also included a strong rarity. There was still of room for spec dose of mercy. When a man was charged with ulation and profit in the state, but more stealing a cow, Field ruled that there were mit were pinning their hopes and dreams on farm- circumstances because the man was and small and even more were He ordered the thiefto pay for the cow up their dreams and to work for and dismissed the case. He told stories of how someone else. In this new Cal he convinced a couple a divorce to ifornians soon became involved in bitter bat back together and how his impassioned tles over how the wealth of this vast to a mob saved a man from a would be divided. The battles were intense and The important is that he was able to sometimes violent. They involved struggles for his own brand of justice. The circum power and wealth, but often were also ide- stances of the frontier allowed-and IJ,-,'UUIJC> And Field was in the thick of even to be trf',f'wihf'f' it. their interpretations of the law. And, at least Following his stint as Alcalde In in Field's case, those circumstances rein Marysville, Field quickly rose in forced an strong attitude of self After a short time in righteousness. he was elected to the California in The young pioneer Field may have reveled 1852 and then to the California supreme court in his application in 1857. The Court Historical Soci ofthe law, but he also understood the power that ety has Field's where you resides in controlling the formal institutions of will find stories that are tales out ofWest law. One of his important accomplishments as ern novels. Field recalls how he stared down a Alcalde was setting up a for William who had threat deeds in Marysville. As we will see, land ti ened to "cut off his ear and shoot him down on tles were the source of many disputes in the spot." He challenges a fellow to California. Field understood that a a duel, is saved from an attack in a saloon, and formality to the transfer of is bushwhacked while unarmed.2 Iam going to those stories how It is impossible to overstate the chaos that ever, and talk about one Gold Rush-~ra dispute was Gold Rush California. Easterners in which Field was not a protagonist as a with them familiar political, and justice of the California had values, but institutions for those val -the final word. The dispute led to the 1859 case ues were not in They did not come to called Biddle v. Merced Mining Com a land that had shops, court- pany,3 The ofthe case is a bit mislead or jails. They had to build those ing, because it is a dispute between fa from scratch. Besides, the '4gers also brought mous explorer John Fremont and small mining a strong sense of saw independent and the Gold Rush as history'S opportunity settlers. to break shackles and traditions that held them To explain the Biddle dispute, it is back. This may have produced a certain eupho- first necessary to consider the 1846 treaty of 152 JOURNAL OF SUPREME COU H

Field was elected Alcalde of the town of Marysville (pictured), giving him almost limitless powers as a magis trate. He settled disputes and tried to preserve the public order.

which ended the war with rested in limbo, unavailable to anyone else un Mexico and ceded California to the United til the grantee made his choice. States. As of the the United This particular grant did include some States promised that all of land previ explicit conditions. Most striking to me was ously made by the Mexican were that Alvarado was prohibited from selling the to be respected as valid to the same extent as He was also required to inhabit it they would have been valid if California had within one year, survey it, place landmarks, remained under Mexican rule. But any land not and file a map called a deseno. previously to individuals by the Mex the prohibition on sale, in 1847, ican government was considered to be Alvarado sold his right under the grant to domain of the United States and thus available Fremont. In 1 Fremont filed a claim ask for homesteading and the US. Land Commission to recognize In 1844, the Mexican gave to the land. At that time, however, Juan Alvarado the called neither he nor Alvarado had satisfied any of Las Mariposas. This was an enormous float the conditions of the grant, and the sale had ing grant, which was common under Mexican broken one. rule. It gave Alvarado the exclusive to The characteristic of the grant carve out a rancho from and the tenuousness of Fremont's claim com a much area estimated to be 900 square a for conflict. The 900 square miles. That 900-square-mile area miles from which Fremont would eventually JUSTICE STEPHEN FIELD OF CALIFORNIA 153 choose his land included prime agricultural the minerals was in question, Fremont employ lands and, more importantly, a large part of ees, Merced miners, and independent prospec rich gold fields in the foothills of the Sierra tors were all working claims in this gold-rich Nevada Mountains. During the Gold Rush, area. The rivalry grew in intensity until a group people had poured into the area. They staked ofabout 100 armed "Miners and Settlers" sur claims, made homesteads, built towns, started rounded Fremont men working a mine called businesses, and panned the rivers and streams. the "Black Draft Tunnel" and refused to let Many of these people might have been un them leave. The San Francisco weekly Bulletin aware of Fremont's claim. Some might simply reported that the intense siege that followed have chosen to ignore it. Others might have "threatened a terrible slaughter." Fortunately, thought it was invalid. Certainly most would it broke up in about a week, when rumors have thought it should be invalid. These peo spread that the Governor was sending in the ple were raised in an era that idealized home state militia. steading. For many of them, the idea that one Second, it is especially significant that the man had a right to tie up an area of land the legal dispute itself took place in two stages. In size ofa small state, much Jess own a block of the first, the majority ofthe California supreme land the size of a country, was un-American court ruled that the only rights that passed and outrageous. to Fremont under the Treaty of Guadalupe The dispute over ownership of the land Hidalgo were the rights granted under for was settled before Field came into the pic mal Mexican law. The mineral rights there ture. In 1854, in Fremont v. United States, the fore belonged to the United States and were U.S. Supreme Court ignored the formalities of avai lable to independent miners and prospec Mexican law and turned to informal "Mex tors. Justice Peter Hart Burnett wrote the opin ican customs and usages" to determine that ion. Field, who had joined the court in 1857, Fremont's claim was valid.4 What was not set dissented. tled, however, was the ownership of the rights Fremont kept the case alive with a mo to minerals, for under Mexican law, a land tion for rehearing. The motion Jay dormant grant did not include mineral rights. Unlike until the general election about a year later. U.S. Jaw, which gave those rights to the owner In that election, one of Fremont's lead attor of the surface, Mexican law reserved them to neys, Joseph Baldwin, was elected to replace the state. Burnett. At the time, the California supreme Independent prospectors and small min court was a three-member elected body, so ing companies such as the Merced Mining Fremont's forces must have been heartened by Company that had been working the gold fields the election. They were encouraged even more for years insisted that the formal Mexican law when. in September 1859, their other antago regarding the grants should be followed, and nist, Justice David Terry, killed Senator David that this meant the minerals on Mexican land Broderick in a duel and resigned from the grants now belonged to the United States-and Court. were avai lable for prospecting and independent Field took the lead in this newly consti mining. This is where Biddle Boggs v. Merced tuted Court. He granted Fremont's motion for Mining Company comes in. rehearing and, within a year, wrote two opin I want to emphasize two things about this ions that reversed the Court's first decision.5 case. First, the case itself·--that is, the con The new Field-led court established a rule that, flict in the courts--does not really capture tfJe once the United States recognized the valid intensity of the battle that raged around this ity of a Mexican land grant, the rights to the dispute. While the case was making its way minerals passed to the holder of the grant. The through the courts and Fremont's ownership of cases gave Fremont complete control of about 154 JOURNAL OF SUPREME COURT HISTORY

Under Field's leadership, the California Supreme Court ruled that the rights to minerals under large Mexican land grants belonged to the grant holders and were thus not available to prospectors like the one who built this shack in long Gulch, California.

square miles of California's richest This complaint-that Field was legislat mineral most of what now is from the bench-was not the only reason his critics thought the opinion was antidemo Mexican law cratic. more importantly, they worried was a masterpiece or legal tactics. He reasoned that the oractical effect of the opinion posed a that the Mexican rule-that ofmin Many Californians erals remained with the state-was based on saw the California frontier as an opportunity the archaic under which for the prospector, and small of a nation's valuable resources was that reserved for the [n so he anstocracy. As his in the awkward position one critic put it, a decision such as Biddle to base their claim on a theory of threatened by concentrating that Americans were to find power in the hands of a few. It had turned distasteful. Fremont's Las Marioosas claim into a small Lawyers have been Field's legal but California's miners and The Biddle case proVided a rough settlers were not. To Field's opinion was but useful into how competing sides antidemocratic. As one "Ameri up, and can public use, custom, and opinion had not a of how Stephen done away with Mexican Mining law. Amer Field would fit in. ica's written law had not it. To the Field left the California supreme court in contrary the people had adopted it. Yet Judge when President Lincoln appointed him Field had ignored them." to the U.S. Suoreme Court. But he did not leave JUSTICE STEPHEN FIELD OF CALIFORNIA 155

California's political scene. This was an era world and attitude toward the law were guided when Supreme Court Justices still rode circuit. in part by a belief that such men of destiny As the Justice assigned to the area, Field was should have a great deal of free play to guide the highest federaljudicial officer in California the economic growth ofthe nation and to allow and the Pacific Coast. In that role, he remained them to reap the rewards of their efforts. at the center of California politics almost un Historians and legal scholars have written til his death. Looking back over that time, one numerous books and articles debating Field's sees a theme. In virtually every dispute- the philosophy and doctrine. I have referred to squatter riots in Sacramento, battles over own his "view of the world" because it indicates ership of San Francisco's valuable waterfront something less structured and formal than phi property, any number of disputes involving losophy or doctrine. Today, I would simply the Southern Pacific Railroad-Field lined up like to explain why I believe Field's experi with an emerging business elite. ences in California- his confidence in men California's miners, settlers, and laborers of destiny, men like himself-influenced his took notice. When Field ran for the Demo decision-making. And I would like to use two cratic nomination for President in 1879, the of his Supreme Court opinions, his dissents in San Francisco Examiner wrote, "In any case the Slaughter-House Cases6 and Munn v. illi where the people or the state, or a private cit nOis/ to illustrate. izen, has been a party on one side, and a rich corporation the opposing party, Field has al ways pronounced opinion or given judgment II. Field's Impact on in favor of the corporation." Constitutional Thought Throughout Field's career, his opponents charged him with unethical conduct, taking Justice Field is typically thought ofas the god bribes, or simply being in the pocket of the father of laissez-faire constitutionalism. Much rich and powerful. But you do not need to of his legacy lies in promoting a doctrine of find a nefarious plot to explain Field's tenden economic liberty that would significantly limit cies. Certainly Field did associate with Califor the government's role in regulating the econ nia's economic elite. He socialized with Leland omy. The Fourteenth Amendment's guarantee Stanford and Collis P. Huntington ofthe South that "no state shall deny any person of life, lib ern Pacific, Lloyd Tevis, the president ofWells erty or property without due process of law" Fargo, and other members of what some called was a key element of the doctrine, as was the "the Pacific Club set." He was one of them theory of liberty of contract, which protected and shared their sentiments. These men were the right of individuals to enter into private the winners in the struggle to divide up the agreement free of government interference. wealth ofCalifornia. It was natural for them to And the embryo of liberty of contract is said believe that their rise to the top was a product to be Field's dissent in the Slaughter-House of their foresight, intelligence, and drive, and Cases, in which he argued that a Louisiana law that the entire state was better off as a result. -requiring all New Orleans butchers to practice They thought of themselves as men of destiny. their trade in a central slaughterhouse inter Field explained this when he articulated why fered with the butchers' "right to pursue a law he decided to go to California: "There was a ful calling." smack of adventure to it, he wrote; "the go Something of the freewheeling spirit of ing to a country comparatively unknown and Field's pioneer days is reflected in the fact taking part in fashioning its institutions, was that he was not the least bit troubled that an attractive subject of contemplation." It is the Constitution does not expressly guaran reasonable to conclude that Field's view of the tee such a right. He argued that the right to 156 JOURNAL OF SUPREME COURT HISTORY pursue a lawful calling was a natural and in Concern for the rights of the community alienable right that belonged to the citizens of was a significant theme of antebellum con all free governments. The Fourteenth Amend stitutional doctrine. The most famous expres ment's protection of liberty merely provided sion of the principle is found in Chief Justice him with the vehicle for giving it constitutional Roger Brooke Taney's opinion for the major status. ity in the 1837 case of Charles River Bridge But there was another, even more obvious v. Warran Bridge. Responding to the Charles link to Field's early days in California. This River Bridge Company's claim that its charter idea of a right to pursue a lawful calling was implied an exclusive right to operate a bridge. nothing new to Field. He had used it when Taney observed that "[t]he objective ofall gov his own professional life was threatened. In ernment is to promote the happiness and pros 1850, his rival, Judge William Turner, dis perity of the community by which it is estab barred him. Field argued to the California lished." This led him to the conclusion that supreme court that he had a right to pursue a "it can never be presumed that the govern lawful calling and could not be arbitrarily de ment intended to diminish its power to accom prived of that right without being given notice plish that objective." II Taney established this or a hearing. And he won.s presumption in favor of the state in order to After he became a Justice on the US. achieve the goal offinding a proper balance be Supreme Court, he used the doctrine again in tween property rights and the rights ofthe com an 1867 case, Cummings v. Missouri 9 In that munity. "While the rights of private property case, he wrote an opinion overruling a law that are to be sacredly guarded," he observed, "we prohibited people from practicing certain pro must never forget that the community also have fessions unless they took an oath swearing they rights, and that the happiness and well being of had never given aid to the Confederacy. every citizen depends on their enforcement." 12 I should point out that Field's commit This paradigm of balancing individual ment to the right to pursue a lawful profession rights against the rights of the community- was not unconditionaL On the same day that both being laudable ends-was largely re he dissented in the Slaughter-House Cases, placed after the 1890s in the era oflaissez-faire he agreed with the majority of the Court that constitutionalism. And Stephen Field was one the State of Illinois had the right to prohibit a of the earl iest proponents of the change. woman from practicing law. 10 The new paradigm emphasized the bal Field's dissent in the Slaughter-House ancing ofindividual rights against governmen Cases provides a pretty explicit example of tal power. It also had another element: the re how his experiences in California influenced fusal to recognize that property rights are not his thinking. The link provided by his dissent absolute but rather are limited by the overrid in Munn v. Illinois is a little more subtle. It be ing claims of the community. Mary Ann Glen gins with the observation that, if society was don calls this "the illusion of absoluteness."13 best guided by men of destiny, as Field be It is unlikely that anybody believes that prop lieved, then collective action- -including pop erty rights or economic liberty are absolute. ular democracy-was at best a nuisance and at Certainly Field did not. But this phrase is worst a dire threat. wonderfully apt. It captures an attitude toward The problem with this idea, of course. is property rights that glorifies individualism and that there is a deep tradition ofcollective action absolute dominion, one in which the rights of in United States history. It is expressed not only the community and regulation in the public in as popular democracy but also in the broader terest are but grudging exceptions. and less well-defined concept of the "rights of This shift did not occur immediately af the people" or "rights of the community." ter the Civil War or the ratification of the JUSTICE ELD CALIFORNIA 157

Field's dissent in the Slaughter-House Cases reflects the freewheel ing spirit of his pioneer days. He argued that the Louisiana butchers had a right to freely practice their craft without interference despite the fact that the Constitution does not expressly guarantee such a right.

Fourteenth Amendment. In the majority down to the time of the adoption of of the Court expressly it, at least as the Fourteenth Amendment, it was late as MUrin v, Illinois in 1877,14 not thought that statutes MUrin involved an Illinois statute that set the lise, or even the ofthe use, of maximum rates that could be charged for stor nrr\nt>rr" neeessari ly ll1 grain elevators. the owner of his property without due One of those grain the ",>o'Tn,pre process of law, Under some circum of Munn & argued that the rate law de stances they may, but not under aiL 1 prived them of their property without due pro cess of law. to regu Although Munn's attorneys lost their case, lation, to Waite, because were Chief Justice Waite's for the "businesses affected with a interest." 16 is remembered today for a major con It is because of this concession that Munn cession to those who favored Field's brand of is best known in constitutional history as a economic ]n giving his reason for re to the Court's eventual jeeting Munn's Chief Justice Waite said tion of the doctrine of economic due process, that the idea that the Due Process Clause of the 158 JOURNAL OF SUPREME COU HISTORY

Fourteenth Amendment limited a state's abil pie, that all shall be governed by certain laws ity to regulate economic matters. In this re for the common good. '" the case was a window to the future. .. He thus concluded that Government has the Field's dissent provided the best and authority to regulate "the view. manner in which each shall use his property, Field's dissent embodied the "iUusion of when such regulation becomes necessary for absoluteness." He agreed with Munn's attor the public goOd."18 neys that "it was not only the title and pos session of that the Constitution was It is a slight exaggeration to say that intended to protect, but also the control of the Waite's majority opinion in Munn was the last uses and income." Field's dissent also tradition that sized the need to balance individual as a limit on vernment poweL At the same the Court it reflected some of that "view of the world" had begun to move towards Field's that grew out of Field's exoeriences in Cali and toward a doctrine that idealized the ab fornia: his distrust of solutist right of property. Instead of balanc derlying sense that men or men of property rights against the of the destiny, should have a great deal of free play to community, it began to emphasize a tension guide the nation's growth. Waite's between individual rights and test, Field complained: power. This was the predominant model that the Court adopted during the era of laissez If this be sound law, if there be no faire constitutionalism from 1890 to J937. protection, either in the Even though the Court reversed course in upon which our J937 and rejected many of the of ment is or economic due process, the model Field advo tions ofthe Constitution cated has persisted. It lies at the heart of the invasion of constitutional of many of po and all business in the state are litical liberals who would balance IpoitiYn" held at the mercy of a maioritv of its government interest-that 17 an individual's freedom of What is often about ii/unn is that privacy. it also a window to the past. ChiefJus tice Waite's adopted the tra of a new breed of ditional borrowed from Contract Clause economic libertarians. These scholars main cases such as Charles River that indi tain that the Constitution restricts vidual property are limited by the rights the state's power to interfere with an individ of the Waite said this in several ual's liberty to use his or her They ways: propose that cases economic tion are a matter economic liberty against state power, and that courts should ap ply a oresumDtion in favor of l:t... ~_ ... 19

tarians sometimes claim that their ideas are rooted in the of the think it more accurate say are the which the whole covenants with each heirs of 1 Field and the ideas he ad and each citizen with the whole peo vocated during the last Dart of the 1800s. JUSTICE STEPHEN OF FORNIA 159

As I mentioned in my opening lice Stephen Field: Shaping Liberty from the Gold Field is often described as conservative. But Rush to the Gilded Age (1997). References can be found he was a in the sense there. I have modified some quotations to make them eas ier to follow oral presentation. that he rejected tradition and advocated a shift 2The Supreme Court Historical Society has published in the very way we think about the nature of Field's memoirs in two parts: Stephen J. Field, "Per- our government and social order. Although in Reminiscences of Early Days in California," Jour his lifetime Field had little success in nal a/Supreme Courl History 29 (2004) 22-1 19; George other members of the Court to join C. Gorham, "The Story of the Attempted Assassination still feel the impact ofhis ideas today. of Justice Field by a Former Associate of the Supreme Bench of California," Journal 0/Supreme Court His/ory 29 (2005) 105-94 3Biddle Boggs v. Merced Mining Company fl, 14 Cal. 279 III. Conclusion ( 1859) I would like to close with one of my favorite 4Frf:mont v. United Slates, 58 u.s. (17 How.) 542 (1854). Field After hundreds of 5The other opinion was in the combined cases of Moore v. Smawand Fremont v. Flower, Cal. 199 (1861). Field's and countless public state 683 U.S. 36, 83 (1873). ments, comments to the and letters in 794 U.S. 113, 136 (1877). almost illegible handwriting, I have sPeople ex reI. Field v. Turner, I Cal. ! 52 (1850); Ex parle come to recognize Field as a man who pos Field, 1 Cal. 187 (1850); People ex reI. Field v. Turner, 1 sessed many virtues. Cal. 188 (1850) motion for attachment (refused); People Humility was not one of them. Field's ex v. Turner, I Cal. 190 (1850) writ ofmandamus. 971 U.S. (4 WaiL) 277 (1867). enormous ego is revealed in a letter he IOBradweli v. Illinois, 83 U.S. (16 WaiL) 130 (1873). wrote to his friend Judge Matthew II Charles River Bridge v. Warren Bridge, 36 U.S. (II Pet.) in 1884. With characteristic confidence and 420,547 (1837). he told Deady that "[t]he 12 36 U.S. at 547. of California generally are furi 13Mary Ann Glendon, Rights Talk: The Impoverishment of PolitiCliI Discourse (1991) 18-46. ous the first year at my and about 1494 US. 113 (1877). the third year afterwards to approve 1594 U.S. at 125. of them." 1694 U.S. at 126. J794 U.S. at J40 (Field, 1. dissenting). ENDNOTES 1894 U.S. at 124-25. 19Randy Barnett, Restoring the Lost Constitution: The IThe following description of Field's experiences in Presumption of Liberty (2004), provides an excellent California is adapted from my own work: Paul Kens, Jus- example. Stanley Matthews: A Case Portrait of Gilded Age High Court Jurisprudence

JONATHAN

Introduction

Why a paper with Matthews? Numerous one will not be familiar with him. Yet his career includes several unusual that warrant some attention, as was also true of the two Justices discussed in my earlier essays: John A. was the only member of the Court to resign from the Court when his state seceded 1 and to be confined in a federal prison at the conclusion of the Civil War in 1865 ; and William Howard Taft was the only member of the Supreme Court who served as Solicitor as well as Chief Justice 2 What is unusual about Justice may be noted: (a) He was the only Justice to be by, not one, but two Presidents: (b) he appears to have been the only Justice to be confirmed by the narrowest and ( c) I believe he is the only Justice whose colleagues, in this case Justice Horace two Republican Presidents, yet his selection in this in an era when it was routine for rancor, enmIty, and recrimination. While such was not to be unexpectea, 1I1 Matthews' case it came from his own party. Indeed, it was not votes but more than a dozen from the Democrats that secured his ultimate confirmation. STANLEY MATTHEWS 161

I him substantial abuse from the abolitionist Matthews was born in 1824 in Lex press. where his father held a Unfortunately, additional, and at Transylvania University, at much more severe tribulation came upon which another future Supreme Court Justice Matthews. Happily married and with a grow Samuel Miller~later studied, not law, but ing family, husband and wife suffered a terri medicine. In I Thomas Matthews moved ble loss in 1859 when a scarlet fever his to Cincinnati and became the first killed four oftheir six children. He and his wife headmaster of Woodward High School, from found solace in their which William Howard Taft would later ironically, the ate in 1870. The oldest ofeleven children from later contributed to one of the (there were also of his career as an In the and Matthews went offto war. both have as he en survived this would be a very short tered as a junior at the age of and returned to law and fifteen. At Kenyon, he became close friends In 1869, faced with an with another student from Ohio, Rutherford verse student the Cincinnati school board This friendship had voted to discontinue what had been the custom repercussions for both young men. ary school of from the appears to have calmed some Bible before the start of each school Out- on Matthews' part concerning a filed and Matthews agreed ment between several students and the to defend the school board's policy. Rebuffed administrators. Apparently, the altercation al in the trial court over a dissent by Alphonso most cost Matthews his degree, but he was able he won a unanimous reversal from the to graduate in 1840.4 He was not yet Ohio supreme court6 Although the case ap Too young to gain admission to the Ohio to be inconsistent with his dynamic de Bar, Matthews studied law on his own in votion to in fact Matthews' Cincinnati and relocated for a brief period to faith was rooted in his emphatic comment: Tennessee, where he taught school, "Toleration-I hate that word."7 What did he and practiced law. He returned to Cincinnati in mean? 1844 and the next year, when he turned n",'nn,l_ Matthews dismissed the idea of to 1 one, was admitted to the Ohio bar. Here eration as a kindness, a privilege, or a favor Hayes encountered Matthews, as he served on by those in power to those without it. the committee to examine the young To the a religious faith was cant. Hayes recalled that Matthews was "be too too personal, too intense a matter yond dispute a better lawyer than any of the for state involvement. Deeply devout though examining committee.'" prac he was, Matthews correctly understood the tice with local Matthews became in real source for the outrage against the school volved with the Free Soil served a "oard's action: it was less a regard for religious term in the Ohio and was mentored education than "solicitude for the name of Salmon P. future Chief Justice of the Protestant Supremacy." "The sting," he added, Demo "consists in to haul down the Protes crat, he an from Pres whether they had any ident James Buchanan as US. for the business to be it in their Southern District of Ohio. In this he faces" in the first place.s Equally had to prosecute individuals accused ofviolat was the issue of court intervention. Matthews the Slave actions that asked the Court H[W]ill your Honors up 162 JOURNAL OF SUPREME COURT HISTORY

Stanley Matthews (left, as a Justice) and Rutherford Hayes (right, as a young man) became lifelong friends as undergraduates at Kenyon College in the 1860s. When Hayes was a lame-duck President in 1881, he tried to appoint Matthews to the Supreme Court. Hayes's successor, James Garfield, successfully reappointed Matthews to the Court after Congress stalled the nomination.

floating loose in the community of whom Henry Adams noted that the process because it happens to be the passing public ofevolution from Washington to Grant opinion, and it into the Constitution? Will would have been enough to even Darwin, your Honors usurp the authority of the School in 1874 the v gained control of the House of Board?,,9 I i Two years both par As was also true of his fellow Ohio attor ties selected as their nominees with ney, Alphonso Taft, Matthews received some reputations for integrity: Rutherford public censure for his views in support of the and Samuel Tilden. school and indeed he seems to have As is well known, lost the popu demonstrated a real streak of inde lar vote to Democrat and he needed always as a Republican. He the disouted electoral votes of South flirted with the liberal in 1 but and Oregon in order to returned to the fold and supported carry the electoral col Congress dead Grant for a second term. 10 Four years later, he locked over the issue of who should count failed in an effort to win a congressional seat. the electoral votes: the House (controlled by He strongly his old friend and class Democrats) or the Senate by Re mate Hayes. Indeed the two were now publicans). Ultimately, it created an electoral as one of Matthews' sisters had mar commIssIon of five ried one of Hayes's brothers-in-law. As events five Senators, and five Supreme Court Jus in the contested presidential election of 1876 . ofwhom one member would presuma Matthews aided and advised Hayes; be a true Justice David Davis. his counsel and assistance were invaluable. Possibly with a deep sigh however, be For the first time in twenty years, the fore the Commission could act Davis resigned Democrats sensed the real prospect of from the Court to become an Illinois sena After eight years of President Grant, tOf. The Republicans around Hayes had not MATTHEWS 163

Matthews was one of the lawyers who argued Hayes's case before the Electoral Commission of 1876 (pictured). Matthews also represented Hayes in delicate and strictly unofficial negotiations with Southern Democrats wherein he promised that Hayes, if awarded the presidency, would withdraw the last remaining federal troops from the South and appoint a Southerner to his Cabinet. supported the commission bill at but some sort of pro quo compromise in this when it was announced that a Republican context has been a fruitfu I source of historical jurist-Joseph Bradley ofNew Jersey-would controversy.!3 There was no doubt, n''''''''''J"r replace Davis, giving the Republicans an 8-7 that Matthews had been of immense assistance It fell to Matthews, to the new President. to argue the case for In I "persuaded" the Ohio before the commission. a one-vote islature to elect Matthews to fill the margin, the commission awarded all the dis Senate term of John Sherman, who became electoral votes to of the Matthews further aided his old friend by of his representing him in delicate and strictly unof nated Matthews to the Supreme Court, ficial negotiations with Southern Democrats. ing Noah who had been Lincoln's He helped draft a letter confirming that among Court appointment in 1862. In fail the steps Hayes would take if officially elected obvious to all except President-which could not happen unless the the Ohio jurist stubbornly de Democratic majority in the House agreed to clined to retire until he had extracted a com oHhe electoral mitment from Hayes to select his old friend commission's be the with Matthews as his replacement. but the nomination unleashed ex tensive and criticism that lasted until erner to his Cabinet. While Hayes did what had left the How can it was pv,'Pf'tpri whether or not there was in fact 164 JOURNAL OF SUPREME COURT HISTORY

This cartoon satirizes the tough time Pres ident James Garfield had in getting enough Republican votes from the Senate to approve his renomination of Matthews (top) in 1880. Matthew's squeaked by with a vote of 24-23, a his torically close margin, especially given that he should have been afforded senatorial courtesy.

A number of factors may be mentioned. cide cases vital to their interests. Doubts were In the first place, any Court appointment raised about his ability, ifnot his inclination, to made in the last of an incumbent's pres be truly he was portrayed as idency produces At that an old crony it was should point, the President has minimal powers of have known better. 14 both patronage and persuasion, a condition When President left the White well understood by the Senate. House, his nomination of Matthews was still Matthews' past brought back a numberofunfa pending in the Senate Committee. vorable memories to more than just a few Sena had obtained a from James tors. He had made enemies when he prosecuted however, that the new President anti-slavery in the 1850s. He had would resubmit Matthews' name as his own an important role in the process ac judicial appointment. his own con to some had robbed Samuel trol over party patronage matters was far from Tilden and the Democrats of the secure, and his personal for Matthews His views on the currency issues were not con in March 1881 Garfield sidered as he supported use of silver than did conservative Republicans. He once was a successful attorney for a number of rail- of an unfavorable recommendation from the as a sitting Justice would have to de- Senate Committee in favor and MATTHEWS 165 seven with a number mous opinion in his tenure on the absent and with more than a dozen Democrats Supreme Court dealt with the efforts of San in support, Matthews received confirmation by Francisco to restrict the of Chinese im a vote, 24-23. 15 To paraphrase Winston migrants out ofwhat can described as bla Churchi II, rarely had one waited so to re tant racial prejudice. The case involved an or ceive so little from so few. dinance giving the local board of supervisors authority to license laundries. Failure to obtain such a document was a thousand-dollar II fine and up to six months in jail. Moreover, it briefdiscussion ofseveral of Matthews' de was limited to wooden structures, which were cisions for the High Court affords Chinese The de into an intriguing tluctuation bet\veen fendant in this case, Yick had been in doctrinal creativity and the laundry trade for more than twenty years, ency. This fluctuation has and his latest site had been and ap an era known less for its VU',""AH\.U proved by the as as 1884. Denied dence than for its obvious excesses-social a license in I he continued to operate his and economic, as well as political. the time laundry, refused to pay the resulting fine, and Matthews took his seat, the Court had was put in prison. Rebuffed in his quest for handed down a number of decisions a writ of habeas corpus from the California limiting the scope of the Fourteenth Amend Supreme and to have his con ment, starting with the I landmark hold- viction his lawyer appealed to the in The Cases. 16 Three Court. The defendant in the case was the years later, in United States v. sheriff who had arrested him.19 Cruikshank the of more than one hun for a unanimous court, dred black men by a white mob, the Justices Matthews described the San Francisco ordi unanimously declined to see any evidence that nances as the public authorities federal rights had been violated. 17 In 1883, charged with their administration, and thus with a silent concurrence Matthews, Justice the state itself, with a mind so Joseph Bradley undercut both the 1873 federal unequal and oppressive as to amount to a Civil Rights Law and the reach of the Four practical denial by the state of that equal teenth Amendment, that only state ac protection of the laws which is secured to tion was covered it and that private acts the as to all other persons, by the of discrimination were not. I8 It is not unfair provisions of the fourteenth to note that Matthews seemed comfortable in Even more blatant, if Bradley's exclusion ofthe amendment's cover was the treatment meted out to Yick Wo and age to those for whom it had been adopted. Per his opinIOn some worked out during No reason whatever, except the will the up to Hayes's of the supervisors, is why ration in 1877. should not be permitted to carry Yet ifMatthews the apparent dis on, in the accustomed manner, their tinction the Court seemed to be making be harmless and useful occupation, on tween the narrower Fourteenth Amendment which depend for a protection due the former slave and that af and while this consent ofthe forded other he still found it a sors is withheld from them, and from racial discrimination when 200 others who have also to another race. his most fa all of whom happen to be Chinese 166 JOURNAL OF SUPREME COURT HISTORY

Matthews wrote the Courti's opinion in Yick Wo v. Hopkins, which struck down a fire ordinance that was enforced in a discriminatory way against Chinese laundry owners. The plaintiff's real name was lee Wick; Yo Wick was the name of the shop.

subjects, 80 not Chinese sub- laws, and a violation ofthe fourteenth are permitted to carryon the amendment ofthe constitution. same business under similar condi Matthews that tions. The fact of this discrimination "though the law itself be fair on its face, is admitted. No reason for it is and in appearance, yet, if it is and the conclusion cannot be resisted applied and administered by public author- that no reason for it exists except with an evil eye and an unequal to the race and nationality so as practically to make unjust and iJIe to which the petitioners and discriminations between persons in sim in the eye ofthe law, is not jus ilar circumstances, material to their rights, tified. The discrimination is therefore the denial of justice is still within the illegal, and the prohibition of the constitution."2o While Yick which enforces it is Wo justifiably ranks as Matthews' most en- denial of the equal Drotection of the decision, it must be remembered that STANLEY MATTHEWS 167 he for the entire Even arch Southern states refused to pay their the High Court "the uneasy of to suits" without their under tion whatsoever. for the Court in In Hurtado v one such Matthews drew a funda mental distinction between a state itself and inal IJIIJI"C•• UlIVI an agent doing business on the state's behalf. tion, "after examination by a magistrate," for Drawing on the ofthe late Chief the traditional indictment by a grand j ury21 Justice Chase, Matthews cited Chase's deci He found this within the bounds of sion in Texas v. White and concluded that Civil emphasized the War had resulted from "the unlawful acts of historical flexibility ofour common law: "It is usurping state and not the acts of more consonant to the true philosophy of our the states themselves.,,24 For this historical institutions to say that the spirit distinction was of vital and he of personal and individual right, which wrote of it in a tone of emotional eloquence they and developed not found in the other cases cited: a to new circumstances and situations of the This distinction is essential to the forms and processes found fit to give, from idea ofconstitutional government. To and greater effect it or blot it out obliterates the " Such a line of demarcation that constitutional OmJl'rlnm,;>nt from ab- expect that the new and various experiences of free based our own situation and system will mould and ofthe people from it into new and .. useful forms." Sound whether of the one realist of a forthcom or the many, which enables the agent than a Gilded Age conservative, of the state to declare and decree Matthews concluded that "any legal proceed- that he is the state; to say "L'Etat, enforced by public authority, whether sanc c'est moi." Of what avail are writ tioned age and custom, or newly devised in ten whose bills ofright, the discretion of the legislative power in fur for the of individual liberty, therance of the public good, which re have been written too often with the and preserves these principles of liberty blood shed upon the battle must be held to be due process of field and the scaffold, if their limita law. tions and restraints upon power may As was true for so many men ofhis gener be with the the Civil War and its enduring aftermath framed Matthews' world. During his tenure as a Court Justice, he fashioned a solu too, with the sacred author tion to a contentious legacy from the conflict. oflaw, not only compelling obedi Ratification ofthe Fourteenth Amendment had ence, but entitled to respect? And how insured that the federal government was in no else can these principles of individ way responsible for debts incurred by the Con ualliberty and right be maintained, if, Moreover, the Eleventh Amendment when violated, the judicial tribunals to the Constitution had made it virtually im are forbidden to visit penalties upon possible to sue the states. But a number of individual offenders, who are the 168 JOURNAL OF SUPREME COURT HISTORY

instruments of wrong, whenever they be best remembered as a jurist very the shield of the state? The of his times. He acquiesced in the doctrine is not to be tolerated. The of Fourteenth Amendment for the whole frame and scheme ofthe African even as he extended~in at ical institutions of this country, state least one instance-such protection to another and federal, protest against it. race, the Chinese. Yet neither Matthews nor his Brethren were able to build on the vision When an state acted ille- ofthe Fourteenth Amendment he delineated in Matthews this individual could Yick Woo he did not live to see it, in not hide behind the state's shield of the 18908 the One final from the opinions of an even clearer towards conservatism Justice Matthews may be illustrating than in the immediate War era, as that even his "toleration" for diverse religious the pressures for awareness concern- preferences, mentioned earlier, had its limits. the realities of industrialism mounted.27 As part of its controversy with the Less than a year after Matthews' Mormon church, barred polygamists February 5, 1890. the New from voting in the Utah Matthews up nal printed a little Perhaps it can serve held the statute and noted that as epilogue to Matthews and his no legislation can be Court: SUpPUS\;U more wholesome and nec We are the dread Judicial Nine who essary in the founding of a self rank over all. governing fit to take We sit upon a narrow bench in a little rank as one of the co-ordinate states stuffy hall. of the Union, than that which seeks We tinker Constitutions and decisions to establish it on the basis of the idea we reverse. of the as consisting in and And when a muddle's very bad, we springing from the union for life of often make it worse. 28 one man and one woman in the holy estate of matrimony; the sure foun dation of all that is stable and no ble in our civilization; the best guar

anty which is I Jonathan Lune, "Ex-Justice Campbell: The Case of the the source of all beneficent progress Creative Advocate," in 30 Journal a/Supreme Court His in social and political improvement. lory (2005), 17-30. 210nathan Lurie, "Chief Justice Taft and Dissents: Down And to this end no means are more di- with the Brandeis Briefs' ," in 32 Journal a/Supreme Courl and immediately suitable than His/my (2007), 178--89. those provided by this act, which en 3At leasllwo other Justices have been confirmed by very deavors to withdraw all political in narrow margins. Lucius Q. C. Lamar more recently, fluence from those who are . Clarence Thomas were both approved by a four-vote mar gin. cally hostile to its attainment. 26 Hoogenboom, Rutherford B. Hayes: Warrior & Widowed in 1885 after more than forty President (Lawrence: University Press of Kansas, years of marriage, Matthews remarried in 5lbid, 55. I against the wishes ofhis chil 6Minor v. Board of Education, 23 Ohio Sl 211 (1872). dren. But his second marriage was destined to At early stages their careers, Alphonso Taft, his son be brief, as he died in March 1889. In a tenure William, and Stanley Matthews were alljudges ofthe Ohio that lasted less than years, Matthews may Superior Court. STANLEY MATTHEWS 169

7Clare Cushman, ed., The Supreme Court Justices lion the legitimacy of electoral votes duly cast within the (Washmgton: Congressional Quarterly, 1993), 228. states, sQuoled in Jonathan Lurie, 'The Fourteenth Amend 13A very good summary, assessment, and critique of the ment: Use and Application in Selected State Court Civll "compromise view point" IS found in :>.1ichael Les Bene Liberlles A Preliminary Assessment," 1876-1877: A in XXVIII Journal oJ Legal HislOry Reconsideration ofReunion " XLVI JOllrlw! 300--1 a/Sallthern History (1980),489-520. 9lbid. Even though Matthews won his case on appeal, he 14See Leon Friedman and Fred L Israel, The Justices might well applauded the comment ofThe Nalion that of the Luited Slates Supreme Court 1789-1969: Their "we have never yet heard or read ofa discourse on matters Lives and Major Opinions (New York: Chelsea House pertaining to religion, from the judicial bench, that was Publishers, 1969), vol. 2,1356-57, not calculated to make the judicious grieve and the scoffer ISCushman, 228-29, laugh." XV Nation (August 15, 1872), 104 The writer 1683 US. 36 (1873) probably had in mind the Superior Court verdict against 17Uniled Slates" Cntikshank, US. 542 (1876). the school board. 18Civil Righls Cases, 109 U S, (1883). hoped to receive a nomination Wa v. Hopkins, I 356 (1886). Grant to replace ChiefJustice Salmon Chase, died in 8 US. at 1873, Ultimately Grant did indeed an Ohio attor 21Hurlado v. California, 110 516 (1884), ney new Chief Justice, but it was not Matthews: he 22110 US. at 530-31, With the sole exception of appointed Morrison R. Waite. Justice John Marshall Harlan, every member of the Coun IIHenry Adams, The Education of Henry Adams, agreed with Matthews. (Boston: Massachusetts Historical Society, 1918), 266. 23Friedman and Israel, 1359, 12For reasons that remain unclear, a numberofDemocrats, 24Texas v. While, 74 US, 700 (1869). including those already on the Commission, assumed that 2SPoilldexier v. Greenhaw, 114 US, 270,291 (1885). Justice Bradley would support Tilden. When, to the con 26Murphy v. Ramsey, 114 US. 15,45 (1885). as the consistent Republican he was, the 27See, e.g, E,C, Knight v. United Stales, 156 US, 1 (1895) and til 158 US. 564 (1895). See the Democratic press, See Jonathan William Wiecek's outstanding study, The Lost World of Bradley: A Reassessment," XVI Classical Legal Thought (New York: Oxford University (1986), 353-55. For his part, Matthews quos- Press, 1998). whether it was appropriate for Congress to ques 28Lurie, "Mr. Bradley," 372. Justice David JIB Brewer and "the Constitution in Exile"

WILLIAM

A decade ago, Ginsburg roiled the waters of constitutional debate with his offhand reference to a "Constitution in Exile" in book review that circulationjournal of the libertarian Cato Society.! The was conjuring up as it does romantic of Stuart princes about Europe, the legitimate constitutional and either triumphant Restoration doomed to disappointment (Bonnie Prince Charlie after Culloden). Or, on the end of the spectrum, his moment in history at the Finland Station, to inaugurate a new world order. But this may be one of those instances may have meant his playful where a metaphor is so vivid that it overpowers the idea has taken on a life ofits own critical thought. Ginsburg did and deserves to be taken as a focus not intend his bon mot to be taken as seriously for constitutional discourse. as it has been liberals. David Bernstein and For the sake ofunderstanding Barnett, who to know, assure us dential outlook and constitutional influence of that there is no "Constitution in Exile" move Justice David 1. Brewer, an influential jurist ment among conservatives and libertarians. who sat on this Court a ago, let us The whole kerfuffie may be nothing more than treat the Constitution-in-exile idea seriously, a matter of liberal commentators as an intellectual construct that us un unduly alarmed by an idea and crying that derstand our Constitution the sky is 3 much to the amusement evolved. (I think that is how Ginsburg of conservatives on the meant it to be taken.) The exile thesis goes like at the power their this: Until around 1937, an authentic and le opponents, But the notion of a "Constitution understanding of the American Con in Exile" has also attracted serious stitution prevailed.6 In this the powers of and journalistic attention.4 so that whatever the state and federal governments to regulate DAVID J. BREWER 171 economic matters were curtailed. The Amendments' Due Process clauses were sub O'mlPr:nmpnt had only enumerated and stantive rights, to be the judi ciary from legislative Lochner v. power to regulate interstate commerce, where New York (1905),9 the eponymous case of the its authority was circumscribed by two pre-1937 era, showcased all these ideas. pal bounds: It could regulate only Thus the authentic, and legiti directly impacted the interstate movement of mate Constitution. But with the New Deal, and its authority did not extend to man this old order was overthrown and the Con or agriculture, but to trans stitution driven into intellectual exile, to be re State sovereignty, affirmed the placed by a usurper, a new consti Tenth set further limits on fed tutional The effects were most eral power, reminding us the state gov dramatically visible in the areas of Commerce ernments, unlike the Clause As a result of of a series of decisions in a tumultuous five-year 0 tice Clarence Thomas sometimes echoes these period, I came to have an essentially themes. He has contended that "[0]ur case law unlimited power to virtually anything has drifted far from the under its commerce This was com of the Commerce Clause," pounded by the Court's willingness to turn" in 1937 that was a "dramatic depar accept an congressional delegation ture from a century and a half of precedent" of congressional powers to administrative and involving congressional authority. thus enabling the The "Constitution .. does not cede a state in its statist form. The Court power to the Federal Government."7 ated all its But the states' powers to "1'."""''', even though residuary, were not either. The states could not persons or cor old order in celebrating the demise of porations of property or without due "the Allgeyer-Lochner-Adair-Coppage consti process of law. Substantive due process was tutional doctrine" and observing that his Court as significant a constraint on state police "has steadily the due process power authority as Commerce Clause limits ophy enunciated in the Adair-Coppage line of were on federal. Under the pre-1937 Consti cases.,,11 tution, economic liberties were as prized as just as signs appeared that the non-economic, if not more so. The idea of Court be rethinking this aban a non-economic of was almost donment of the older unknown, being confined to speculations and sounded his clarion: dicta ofLouis D. Brandeis.s The US. Supreme Court's activism was directed to protecting in So for 60 years the nondelegation dividual liberty from regulation. doctrine has existed only as of Liberty of contract was the watchword of the the Constitution-in-exile, along with era, assuring contracting parties that they could the doctrines of enumerated powers, enter into any contractual relationship with unconstitutional conditions, and sub out government interference that would ei stantive due process, and their textual ther prohibit the contract or modify its terms the Necessary and and Such was the con Takings, and Commerce sequence of substantive due process, a doc Clauses. The memory of these an trine holding that the and property in banished for terests the Fifth and Fourteenth to unlimited 172 JOURNAL OF SUPR E COURT HISTORY

is kept alive a few scholars who la bor on in the hope of a a second of the Constitution of n ..rnl_---P'.lF'n if not in their own lifetimesI3

Let us use the career of Justice Brewer to evaluate the Constitution-in-exile thesis. A survey of Brewer's constitutional influence neither proves nor the existence of a "Constitution over the water," to adapt the romantic Jacobite expression. But it will illu minate for us the contours of that and it will demonstrate that no not even one who seems at first to be the ideal candidate for the embodies a school of In Brewer's career, we see much that conforms to the model, but also much that is inconsistent with it. That should be In 1837 David Brewer (pictured) was born in modern None of us fits a stereotype. day Turkey, where his father served as a missionary for a sketch of David 1. Brewer's life two and a half years. His mother's brother, Stephen J. Field, lived with them as well. Brewer and his un and career, to ground his constitutional think- cle would serve on the Court together from 1890 to in the experience of his life as he lived 1897. it. 14 He was born in (modern Turkey) in 1837 to Congregationalist mission the incursions of Confederate regu ary parents. He was related on his mother's lars under Sterling Price and irregular bush side to the eminent Field brothers: David Dud whackers such as William Quantrill. Though York attorney and foremost Brewer earned an income to support of being the sponsor of the Field his in practice and then on the Codes), (who laid the trans-Atlantic bench, he never prospered financially. cable), (prominent cler Therefore he always welcomed the opportunity gyman and and above all to eke out his judicial with fees from J., who was to be Brewer's on the a fortunate happen Supreme Court. Brewer first attended Wes stance for historians because this left a large residue from which we can infer much about his social then spent a year clerking in the office of his After activity in local Republican pol uncle David Field in Albany, following itics and service on a state district court, he was this up with a brief stint at Albany Law School. elected to the Kansas supreme court, where From thence he he served from 1871 to 1884. After he in the former served as a of the Eighth Circuit Court in the northeast corner of the state in 1859. of Appeals for the next five years. He to establish a law on the out his he remained a staunch Republican frontier in times. and an devout lay When war broke out, Brewer man. He devoted countless hours to the causes a commission in the Kansas militia and of public libraries, Sunday school local guard dutv in Leavenworth teaching, and even, in a modest way, DAVID J. BREWER 173 women's rights, insisting that they be allowed wage cuts, forced overtime, and unjustified to serve on elective public bodies even if they firings-before him, rather than interfere with had not yet been given the vote. 16 Even after train operations by striking, he dismissed their appointment to the High Court, he devoted a complaints as " very trivial. ,,2 I It is not that great deal oftime to a variety of reform efforts, Brewer lacked sympathy for individual work including arbitration of international disputes, ers or wanted to thwart their efforts to orga the anti-imperialist cause after 1898, and re nize. He extolled the hard-working, frugal in sistance to military and naval expenditures. He dividual and sometimes even acknowledged also taught as an adjunct at the predecessor of the benefits provided by labor unions, see George Washington University Law School. ing them as "the needed and proper comple Brewer's opinions from his Kansas and ment of capital organizations.,,22 But his sym Eighth Circuit years provide only a few hints pathies lay with property owners, whether they of his later jurisprudential outlook. At first, be industrialists or small entrepreneurs, and he while sitting on the Kansas bench, he up instinctively sided with management in labor held Kansas prohibition laws, though express disputes. ing unease that they went to the verge of the Brewer opposed designating railroads as police power and threatened to take property "businesses affected with a public interest," without due process of law or constituted an in the formula of Munn v. Illinois (1876),23 uncompensated taking. 17 Once on the Eighth because that enhanced the states' regulatory Circuit, such doubts congealed into his hold power over them. He vehemently resisted reg ing in Kansas v. Walru./J (1886)1 8 that pro ulation of railroad rates and insisted that rail hibition deprived a brewer of property in a roads were entitled to reasonable returns on hitherto legitimate business (by reducing its their investment. Thus, state regulation could value for other purposes) without due process. not limit railroad charges to a point where the He firmly opposed the constitutionality of lo lines were no longer profitable.24 Because the cal communities pledging their credit to pur Eighth Circuit included most of the Granger chase railroad stock and bonds, even though states, Brewer found ample opporhmity to in the U.S. Supreme Court had expressed alarm veigh against such heavy-handed regulation. in Gelpcke v. Dubuque (1864) at the inclination Brewer's nomination to the Supreme oflocal communities to repudiate such debts. 19 Court by President Benjamin Harrison was Brewer was one of the cohort of fed not highly controversial. Temperance advo eral judges in the late nineteenth century who cates complained about his prohibition opin encountered labor issues first-hand through ions, and Grangers accused him of favoritism their role supervising receiverships of rail toward railroads, but none of this was suffi ways. When railroad workers on such lines cient to derail the nomination. Brewer was con struck, picketed, or were involved in labor vi firmed and took his seat in January 1890. He olence, they found themselves charged with soon became the intellectual leader of a tri contempt of cOUli orders that kept the lines umvirate of conservative Justices who collec running. Like other judges, Brewer held that •tively personified the classical tradition. The though an individual employee had a right to others were Chief Justice Melville Weston quit at any time and for any reason, and that Fuller, who sat from 1888 to 1910 (nearly ex this right might extend to a group of workers actly overlapping Brewer's term of service), en masse,20 no workers could interfere with the and Rufus W. Peckham, who served from operation of railroads in receivership, as, for 1895 to 1909. Of the three, Brewer was by example, by inducing others to join the strike. far the best educated, the most thoughtful, But when striking workers took up his invita and the ablest writer. Among them, they were tion to bring their labor grievances- including responsible for giving the turn-of-the-century 174 JOURNAL OF COURT H

When Brewer joined the Court in 1890, he became the intellectual leader of a triumvirate of conservative Justices, including Chief Justice Melville Weston Fuller, who sat from 1888 to 1910 (nearly exactly overlapping Brewer's term of service), and Rufus W. Peckham, who served from 1895 to 1909. Brewer is seated at left, Fuller is in the center chair, and Peckham is standing behind Brewer.

Court its reputation as a conservative bastion. This conservative reputation has endured are the betes noires of traditional neo as tenaciously as it has because Brewer was historiography, which denounces with the majority, and sometimes wrote the them as "ultraconservatives" and exemplars in all the major Fuller Court cases of laissez-faire conservatism.,,25 government power in the name Brewer has traditionally been private and liberty of this He was contract. The roll of these cases, all discussed and doctrinaire conservative" whose "strictly below, is enough to convert anyone to the conservative, sometimes position" view: the Income Tax: frustrated nearly all state and federal reg- Debs, Smyth v. the Milwaukee legislation. He was allegedly "dog Road Case. Lochner, Adair. Yet as I hope will matic and "highly mate be evident below, the content of his conser rialistic and elitist in the vatism was more complex and Jess monolithic Social Darwinian sense, and fearful of the so than "right-wing laissez-faire" labels allow. 27 cial challenges the of Foremost in the ofBrewer's val industrialism."26 He even looked stodgy: As ues was the almost sacred character of he he became less and less photogenic, vate orooerty. Early in his tenure on the U. S. so that photographs taken of him at the peak Court, Brewer delivered a widely of his influence seem to a grumpy old noted commencement address at Yale Law curmudgeon, about in top hat or subsequently as "Protection judicial robes, the very ofa rp-:l,-.tiAr'I;:) to Private Property from Public Attack,"28 in which he intoned: "fTlhe demands ofabsolute DAVID J. BREWER 175 and eternal justice forbid that any private prop The US. Supreme Court disappointed him erty, acquired and should when it the Kansas statute on appeal in be spoliated or in the interests of v. Kansas (1887), he might public health, have taken some consolation from a dictum in " Property owners enjoyed "a sa Justice John M. Harlan's opinion that a cred and indestructible ofcompensation" statute go so far as to be "a for any exercise of the power that di invasion of secured by the fundamen minished the value of their Private tal law" and thus unconstitutional. Brewer was property could be threatened in one of three vindicated in 1897 when the Court

nr-.-..rr",r"h>r! the Takings Clause via the Four teenth Amendment as a limitation on state po lice power-the first provision of the Bill of sources, He was with the t't'\lrnr,r""pt1 38 ond Income Tax Case (1895),29 down But as in other areas, Brewer's actualjudg the federal income tax, and later insisted that ing to be less than his a progressive federal estate tax was constitu rhetoric. In L'Hote v, New Orleans (1900),39 invalid.3o In a dictum in an he confronted an unusual ernmental immunities tax case, Brewer hinted claim: The owner insisted that a lo that state socialism (public of util cal ordinance that shifted prostitution ities, including railroads) might threaten the to the neighborhood in which his property 3 republican form of government of a state. ! was located reduced its value and thus was a But in most cases challenging the Brewer off that of state taxation, Brewer upheld state tax claim: "[T]he exercise of the power of ing powers against Commerce and Contracts ten works pecuniary injury, but the settled rule Clause 32 In one such case, he de~ ofthis court is that the mere fact of clared that "in respect to the injury does not warrant the overthrow of State has, speaking the freedom of islation of a character." Brewer's com both as to mitment to the inviolability property the Pro- served more as a philosophical foundation for his views than as a to his actual decision to Melvin have pointed out that the Given the fervor of his rhetoric, what Supreme Court upheld far more exercises of is about the results in property cases authority than it struck down, he decided is how little the reg When Brewer as he often that ulatory order of the late nineteenth century. state regulation might intrude so far into essen As with most other issues he tial ofproperty as to require Brewer's bark was often more conservative just Clause, than his bite. he anticipated the modern doctrine of A hallmark ofconservative judging in the tory takings, which after 1'8905 was resistance to the state, nia Coal. Co, v. lvlahon 35 In State especially to federal regulation, and it contin (1883),36 a case he heard of the Constitution-in while still on the Kansas supreme court, he Brewer was some opined in a dictum in a concurrence that "is not what more consistent. "The paternal theory of this taking of property for is to me odious, he trumpeted in without compensation? If the public re- dissents on the Court. "The the destruction ofthe valuc ofthis prop is not prior compensation indispensable?" to him and his 176 JOURNAL SUPREME COURT HISTORY

is both the limitation and of and the limits ofBrewer's ethos. government.,,40 Together with dicta in fn re Yet there is an oddity in the of these Debs (1895), discussed below, this clarion is state regulatory cases. While Brewer was con Brewer's most frequently quoted statement of sistent in his posture up to I in all outlook, and it aptly captures his hos subsequent state cases, he voted to tility to the regulatory state. sustain the state.48 Statistically, Brewer voted Brewer saw individual threatened to uphold state regulatory ll1 approx an ever-spreading web of state and imately 80 percent of the cases be For him, the root of the evil was fore him.49 Sometimes these votes could be Munn v. fllinois (1877),41 with its doctrine of surprising, as when he dissented in Leisy v. "business affected with a Hardin (1894),50 that an Iowa prohi su bition statute was a proper exercise of the po enter lice power. Given his to in prises in which the public had an interest. He Wafruff, this seems to have been a remarkable insisted that only businesses such as common volle-face for him. carriers or public utilities could be in Federal was another mat that way, and only if the rates that were set al ter. Brewer dissented when the Court up lowed a return on investment. Such rates had to held Congress's exercise of regulatory power be "reasonable," and their reasonableness was through the Commerce Clause by excluding 42 a matter ultimately for evaluation. lottery tickets from interstate commerce,S I ap Thus, he was with the in the landmark parently that this went too far toward Milwaukee Road Case (I which marked acknowledging a power in Congress. the original triumph ofsubstantive due process He was equally determined that what Congress on the U.S. Court. The reasonable could not do it should not be able to do a for its powers to the new

due process of ",., created in the wake of the law for its determination. Interstate Commerce Act of 188752 Thus, he Brewer was unsuccessful in his efforts to spoke for a of the Court in the first get his Brethren to reverse Munn, but he en the regulatory au joyed other In Rea thority of the Interstate Commerce Commis gan v. Farmers Loan and Trust Co. (1894),44 the first of the federal agencies, deny he established the reasonableness standard for ing it powers in ICC v. Cincinnati, New Orleans & Texas Pacific Ry. (1897).53 In that same year, he joined a majority in deny- courts to enjoin state officials who were en finality to ICC 54 But neither unconstitutional state law, Brewer nor the Court as a whole were obdurate the bar of the Eleventh Amend power. After Congress, in the ment. Brewer the in v. Act of 55 reasserted its deter Ames (1 46 which seduced the Court into mination that the ICC should have all the pow attempting to determine valuation as a ba ers of the state regulatory agencies, sis for Two prominent constitu the Court relented (though Brewer himself did tional authorities consider this misguided foray not), finality to its factual determi into the worlds and economics nations in lllinois Central R,: v. fCC (1907)57 "one of the worst mistakes the Court ever and power in fCC v. lllinois Cen made" because it the Justices beyond tral Rr. (1910)58 their in micromanaging regulatory This pattern of initial resis economics.47 Reazan and Smyth demonstrate tance on conservative ideological grounds, fol the of judicial activism lowed by acquiescence in DAVID J. BREWER 177 obviously having majoritarian suppOli, was trine in an 1897 opinion by Justice Peckham, manifest in Brewer's and the Court's response Allgeyer v. Lousiana. 64 The employment con to Congress's other great regulatory initia tract immediately became the most important tive of the late nineteenth century, the Sher kind of contract protected by the new doc man Antitrust Act of 1890. 59 The Fuller Court trine, which the majority declared was violated is best remembered for its rebuff of federal by labor-protective legislation in the notori antitrust authority in United States v. E. C. ous cases of Lochner v. New York (1905) and Knight Co. (1895),60 in which Brewer joined Adair v. United States (1908).65 Lochner in the majority in a Fuller opinion that held that volved state regulation, Adair federal, so be federal power could not reach a monopoly tween them they comprehensively restricted of sugar refining. This decision was espe state power to regulate workers' hours, wages, cially galling to Progressives because it rested and the yellow-dog contract. Brewer joined in on two arbitrary grounds having no basis in each of these opinions, and he added his own the textual Constitution or in the Framers' antiregulatory spin on the doctrine in Brass v. discernible intent: the direct/indirect effects North Dakota (1894),66 where he warned that dichotomy; and the distinction between manu the trend toward business regulation-in this facturing on the one hand and commerce on the case, a grain elevator-"Ieads to the point other. where all freedom ofcontract and conduct will Yet the remarkable thing about the Fuller be lost." Court's overall record on antitrust cases is how Liberty of contract was the foundational readily the Justices acceded to antitrust regula doctrine enabling the Court's activism in all tion after Knight, which thereby stands out as cases involving state regulation of workers' an anomaly among those cases. In five ma wages and hours. From a results-oriented point jor cases after Knight, the Court sustained of view, Brewer's opinions and votes in these antitrust initiatives at least as sweeping. 61 cases, with one major exception, were adverse In one of them, Northern Securities Co. v. to unions and to regulatory efforts that ben United States (1904), Brewer, in a concurring efited working people. In this sense, Brewer opinion, endorsed the "rule of reason" that stands in a long tradition ofjudges inveterately condemned only unreasonable combinations. hostile to labor unions and uncaring at best Whatever might be thought of Brewer's con about the interests ofworkers. But the most re servative declamations, in most cases he was markable thing about Brewer's labor opinions not a consistent opponent offederal regulatory is that they spanned the whole gamut of labor power. related positions, from the disastrous union After the Court had embraced the new hostile Debs opinion of 1895 to the amaz doctrine of substantive due process in 1890, ingly progressive Muller opinion thirteen years it soon developed the derivative doctrine of later. liberty of contract. Building on suggestions In re Debs (1895)67 was Brewer's first contained in the dissents of Justices Stephen 1. and most significant labor opinion for the Field and Joseph P. Bradley in the Slaughter "Court. In it, he sustained the use of the la House Cases (1873),62 the Justices of the bor injunction, which he himself had resorted Fuller Court found in the due process lib to on the Circuit bench.68 That in itself was erty guarantee of the Fourteenth Amendment bad enough, but it was made worse because a right to enter into any kind of legitimate the injunction stifled activities protected by contract without interference by the state. In the First Amendment: speech, press, and as 1895, Brewer endorsed the idea that contract sembly. His dicta warmly endorsed the ex might have a due process liberty dimension.63 panding equity powers of the federal courts, The Court as a whole accepted the new doc which was to have a long-term impact that 178 JOURNAL Of SUPREME COURT HISTORY

Brewer's opinion in the 1895 Debs case sanctioned the use of injunctions against striking labor unions and helped the Cleveland administration break the Pullman strike and cripple the American Railway Union. Pictured is an 1886 railway strike in East 5t louis, Illinois.

Brewer did not foresee and that he would have contributed to the conservative swell that in the use of social the next year drowned William reforms-for example, reform. Incon and the with his views in other cases -most Most of Brewer's other deal- notably Debs' contemporary, Knight-Brewer with unions or workers' rights were of a endorsed broad federal regulatory with Debs, which is not In and law-enforcement powers to inter an 1893 "The Nation's state commerce. 'The entire of the he denounced collectivist tendencies -"the nation may be used to enforce in any part of black of anarchism ... the red of the land the full and free exercise of all na he robbed the in tional powers and the of all rights in dividual of opportunity, stunted his trusted by the constitution to its care," Brewer threatened property rights, and reflected the exuberantly proclaimed. "The strong arm of ethos he so loathed. these the national may be put forth to he included the coercive tactics oflabor unions, brush away all obstructions to the freedom of such as harassment of non-union labor, de interstate commerce or the transportation of mands for a closed shop, and all forms ofvio the mails. If the emergency the army lence or intimidation. He condemned "the im of the nation, and all its proper use oflabor to the vice of the nation, to obedience to its freedom of the laborer and control the uses of laws."69 The forceful reaction ofthe Cleveland Brewer's solution for these trends was administration, endorsed by Brewer's nation to the independence ofthe judiciary alist opinion, broke the Pullman strike and the (the "Safeguard" ofhis making judges as American Railway sent Eugene Debs to free ofdemocratic, constraints as prison (where he converted to socialism), and DAVID J. BREWER 179

The Pullman strike these est and care in order to preserve the developments, which accounts for and of the race." Above "woman has the extraordinary force ofBrewer's Debs opin always been dependent on man" because "in ion. His suspicion of the state rein the struggle for subsistence she is not an equal forced his latent indifference to the real-world competitor with her brother," a thought that of people. He reaffirmed enabled Brewer to overcome his revulsion to for the fellow-servant rule in em- paternalism. suits against their in indus Up to this point, Brewer be taken trial accidents, and at the same time he ac to be an embodiment of the Constitution-in celerated the Court's reliance on federal com a weak and inconsistent one, not mon law (in this case, concerning torts in the a pure type. His decisions involving two other field of workplace injuries).71 He dissented subjects, race and church-and-state, either do without opinion in Holden v. (l 72 not fit the exile or, ifthey do, prove only which a state law that we are better off if the exiled Constitution labor in hazardous such as min never returns. ing and smelting. A decade later, he joined in Brewer displayed from today's per- the opinion in Adair v. United States (1908) an inconsistency in striking down the federal statute cases peoples. Where 73 and he African Americans were he was a and Peckham to void the first Federal Employ man of his sharing racial attitudes com ers Act ( 1906), that the fed mon to Northeastern or Midwestern middle eral government lacked the police power to su class whites of his era. his com pervise labor relationships, even though inter he saw nothing wrong state commerce was involved.75 Contrast this with On the Kansas supreme pinched notion ofinterstate commerce with his court, he went out of his way to defend racial Debs vision ofsweeping national authority. se~(re!2;atllon in the schools.78 In his first year All this, particularly the 1908 decisions, on the U.S. Supreme he a Mis made Brewer's VjJ"U~'!l statute m<.nril::otl Jim Crow cars on in Muller v. anomalous, even railroads in the state, even as it startling. he upheld state hours terstate runs-in this case, from tion for female employees. Two stand New Orleans. Trains would have to at the out about this opinion. Brewer smoothly state hitch on a Jim Crow car, and then the validity of the Brandeis brief, divert all black passengers to it, but Brewer a Progressive innovation completely incom this off as a minimal inconvenience. patible with classical thought. "",.vau., this case was more he his holding-and implicitly dis the validity Lochner-by that tion than (1896),80 in which would be condemned as arrant sexism: The Brewer did not 81 he up "inherent difference between the two sexes" neld the constitutionality of the Peonage Act 82 justified of 1866 in 1905 , in v. United States from men, because "woman's struc (1906), Brewer overturned convictions of ture and the performance of maternal func whites for African Americans in tions her at a in the in violation of the Civil for subsistence." This social-Darwinian note Acts of 1866 and 1870. He opined led him perilously close to women as that the Thirteenth Amendment was "not an breeders: healthy mothers are essential attempt to commit Americans] to to vigorous the physical the care of the nation" and reaffirmed the of woman becomes an object of state-action doctrine in holding the Fourteenth 180 JOURNAL OF SUPREME COURT HISTORY

Amendment inapplicable. His last word on the the Fourth, Sixth, and Eighth Amend came in Berea ments. He was provoked to an uncharacteristic (1908), where he sustained bit of sarcasm: view of this enactment segregation even in of the highest legislative body of the foremost Chinese immi Chi an entIrely different reaction nese from him. We can only about the do send missionaries here?'" He consis reasons for these racially differentiated atti-. tently dissented in subsequent cases uphold tudes. having been born and raised ing expUlsion of Chinese (and, in one case, among Turks in the Levant, he was more able to Japanese) aliens. 86 Brewer gladly the with people his lumped majority in United Slales v. Wong Kim Ark as "Orientals." For whatever reason, (1898),87 in which the Court held that children mistreatment of Chinese evoked his indigna born of resident alien Chinese were American him to denounce white attitudes citizens under the explicit terms of the Four in terms that make him sound like an teenth Amendment and refused to carve out a civil libertarian. In Yue v. United States (1893),85 where the sustained a federal statute authorizing summary depor marked him as a figure of the Jim Crow era, tation of resident Chinese Brewer de his concern for Asians stood nounced the lack of process as a violation of out in welcome relief. The exiled Constitution

Although allied with the rest of the Court in upholding segregationist laws, Brewer was nonetheless precocious about the treatment of Asian Americans. Pictured is a painting of Chinese Americans on Mott Street, New York City, in 1900. DAVID J. lSI

in segre play in other courts. To be sure, Christian ac gation, but its for national and execu tivist groups, especially the American Sabbath tive power in affairs would have found Union lobbied for Sunday blue Brewer's Asian proto-civil-libertarian sympa and the National Reform Association (which thies unwelcome. lobbied for a constitutional amendment pro Brewer's views on the relationship be "Lord Jesus Christ as the Governor tween American law, American civilization, hailed Brewer's and Christianity are well known, not to say no- to use it to nrr,rn.r>tp thanks to his in Church their Christian ac v. United States ( I tivist successors have also extolled i1.94 But ion widely out none has succeeded in the idea taken se ofcontext. In a case that was otherwise oflittle riously as a oflaw. In any event, the involving Christian-nation thesis has not been suggested of a relatively unimportant act, by anyone as an element of the Constitution Brewer propounded the Christian-nation the in-exile. as it was to Brewer as a de sis that America is "a nation." After scription of American civilization, it formed quoting colonial charters and no part of a restorationist "",,'_Hun. tutions, antebellum While the Christian-nation idea is ir to be relevant, Brewer's closest affinity to the and the mass ofcustoms and Constitution-in-exile lies in his attitude toward tice William J. Brennan once described as "cer federal judicial power. In a penetrating analy- emonial such Edward A. Purcell has traced the influ oaths and invocations in or ence of his on the expansion of fed Brewer asserted that "these, and many other eraljurisdiction and judicial power generally. 95 matters which might be noticed, add a vol ume of unofficial declarations to the mass of utterances that this is a Christian ultra of federal nation.,,90 Such an utterance would be unthinkable expanding its reach from a Justice of the United States torts (as in Baltimore & Ohio Rr. v. 91 but did it in its time reflect (I waters, and com mon carriers.96 Brewer federalju stitutional order, or even an aspiration that it dicial supremacy over both and the should be? In a thorough and thoughtful states. Yet at the same he invoked the Steven K. Green has conclusively demon Tenth Amendment to restrict federal legislative strated that it did not.92 Brewer was rei i power, a tour de force reasoning that his life,93 reflecting the Con promoted the conservative of restrict of his missionary ing federal regulatory power while enhancing Trinity dictum-like his book the power ofcourts to both state and The United Slates: A Christian federal legislative Amendment as both a limitation on congres sional power and, at the same an affir and to pervade, American cul mation that "all powers of a national character ture. But for Brewer this was a which are not delegated to the National Gov ment, not a normative one, and it was so re ernment are reserved" to the American peo ceived his contemporaries. He himself did ple as a whole.97 This reading converted the not treat it as precedent, and it got little Tenth Amendment from a norm OF SUPREME COURT HISTORY

Deeply religious, Brewer believed that America was a Christian country by culture and history, but not by law. Pictured is Saini Patrick's Cathe dral in New York on a Sunday morning in the 1890s.

allocating power between the federal govern judicial power would be "part and ment and states, into a limitation on the leg scheme to array the many against the the islative powers of both the federal government masses the classes." 99 Federal com and the states. With authority mon law allowed protean federal iudges to thus corralled, the role of federal courts was create substantive rules free of enhanced. straint and state common-law General federal common law, based on The courts did not have to justify their rules or "principles" "in force throughout the their sources, because they found the United States" elbowed out both state com of law in keeping with the declara mon law and statutory modification.98 Only tory function oflaw. In this theory, law derives the judiciary, in Brewer's could be relied from immutable principles extrinsic to law and on to save the nation from the menacing evils to principles based on "conviction of right and wrong," discovered by iudges and pv"",mrl"rl as law. ***** and the if does David 1. where about him. Given its awesome respon Brewer's years' service on the sibilities, any effort to restrict the growth of Court tell us about the Constitution in exile? DAVID J. BREWER 183

Does such a Constitution exist? If it does, Constitution in exile. If anyone might be the what are its contents? Did Brewer and/or his archetype of such an idealized constitutional Court contribute much to the substance of that order, it would have been David 1. Brewer. But Constitution? since the body of his work lends only little The contrast between Brewer's tradi or weak support to the thesis, we must ask tional reputation as a right-wing, laissez whether the Constitution in exile is more fan faire-committed, anti-labor, pro-business, re tasy than history. For if Brewer does not exem actionary ideologue and the reality of his plify the thesis, no one can-at least, no one judicial performance as sketched out above who served prior to the Four Horsemen. cautions us to beware of easy generaliza tions and snippets taken out of context. While Brewer did participate in major decisions that were conservative by anybody's standards, and ENDNOTES

while the Brewer-Fuller-Peckham troika un I Douglas H. Ginsburg, "Delegation Running Riot" (book doubtedly moved the Court's holdings some review), in Regulation: The CaW Review oj Busi what to the right at the turn of the twen ness and Government (1995), availahle at http://www. cato.orglpubs/regulation/reg 18n Ifhtml (last visited Apr. tieth century, the traditional neo-Progressive 19,2008). picture of Brewer comes so close to carica 2See Bernstein's comments in Orrin Kerr, "Is 'the Con ture that it is unreliable as a guide to describ stitution in Exile' a Mythry,,, blog and commentary ing the constitutional heritage of the Progres on the Volokh Conspiracy, Dec, 29. 2004, available sive era. If there was, or a Constitution at http://volokh.com/posts/chain_1104346631,shtml (last visited Apr. 19,2008); Barnett in a debate with Cass Sun in exile, it is ill-served by stereotyping and stein, May 2, 2005, available at http://www.legalaffairs. exaggeration. orglwebexclusive/debateclub,cie0505.msp (last visited Assuming arbitrarily that Brewer does Apr. 19,2008): 'There is no 'Constitution in Exile' move represent the Constitution in exile, though, ment, either literally or figuratively." what can we extrapolate about it from this 3Cass Sunstein, "The Rehnquist Revolution," New Repub brief synopsis of his career? Brewer's career lic, Dec. 27, 2004; Adam Cohen, "What's New in the Le gal World? A Growing Campaign to Undo the New Deal," suggests that the Constitution-in-exile thesis New York Times, Dec, 142004. is without merit. A balanced and complete 4As in an entire symposium issue devoted to the topic in picture of his opinions and positions portrays 51 Duke L. J I (2001); Jeffrey Rosen, "The Unregulated a judge who decided cases according to his Offensive," New York Times Ivfagazine. Apr. 17, 2005. firmly held legal and moral principles, but who 5The Constitution-in-exile thesis should be distinguished from Randy E. Barnett's concept ofthe "lost Constitution," was not rigidly consistent around a single ju as expressed in Restoring the Lost Constitution: The risprudential axis. He was opposed to regula Presumption of Liberty (2004). Barnett contends that tion in principle, for example (score one for throughout American constitutional history, judges have the Constitution-in-exile thesis), but he cer consistently ignored or undervalued specific clauses of the tainly did not vote that way most ofthe time, as Constitution, leaving entire areas of the original document the state-regulation and federal antitrust cases grayed out, as it were, of no constitutional impact today. 6J.have surveyed the intellectual and social background of demonstrate. this constitutional understanding in William M. Wiecek, It may be that the exile hypothesis was The Lost World of Classical Legal Thought: Law and not meant to be taken seriously-that it was Ideology in America, 1886-1937 (1998). an off-the-cuff suggestion, or a feint, or a trial 7United States v. Lopez. 514 U.S, 549, 599, 602 (1995) balloon, or a mere rhetorical gesture. What (Thomas, 1., concurring); United States", /\,forrison, 529 ever its author's intent, it does not work as US 598 (2000) (Thomas, 1., concurring). 8Edward Warren and Louis D. Brandeis, 'The Right to an explanatory or even categorizing construct Privacy," 4 Harv. L. Rev. 193 (1890); Olmstead v. United that explains long-term constitutional develop Stales, 277 U.S. 438, 478 (1928). ment. This forces us to question the idea of a 9198 U.S. 45 (1905). 184 JOURNAL OF SUPREME COURT HISTORY

IONLRB v. JOl1es Laughlin Steel Corp., 30 I US, I (1937); 29Pollock \'. Farmers Loan and Trust Co" 158 US. 601 United Siaies Darby, 312 U.S. 100 (1941); Wickard v. (1895). Fiiburn.317US III (1942). 30Knowiton v. Moore, I US. 41, 110 (1900) (Brewer, 1.,

IILinco/n Labor Union \Z Northweslern Iron and concurring and dissenting). Metal Co.. S, 535-36 (1949). 31Sowh Carolina v, United 199 US. 437, 12United Slates v, Lopez, 5 US. 549 (1995). (1905). I3Ginsburg, "Delegation Running Riot." }IOn Brewer and state taxation, Brodhead, Brewer, 14Micllael1. Brodhead provides biographical data David 93-94, 149-50. J. Brewer: The Life ofa Supreme Court Justice, 1837 J3Michigan Central RI: v, Powers, 201 US. 245, 293 1910 (1994). (1906) 15At that time, the Eighth Circuit comprised Kansas, 34Charles Warren, "The Progressiveness of the United Nebraska, Iowa, Minnesota, Missouri, Colorado, and States Supreme Court" and "A Bulwark to the Police Arkansas. The Dakotas and Wyommg were added later. Power-The United States Supreme Court," J3 Colwn. at the time oftheir entry into statehood. L. Rev. 294, 667 (1913), respectively; Melvlll 1. 16Wright v. Noell, 16 Kan. 601 (1876). sky, "Myth and Reality: The Supreme Court and Pro,

rmmln'ILOI'J} Amendlnelll Cases, Kan, 704 (1881); In- tective Legislation Cases, 25 Kan. (1 ); Slate Mubook ofIhe COUl'l Hislorical Society, gler, 252 (1883) (Brewer, 1, concurring) 01 http://wv-.'W,supremecourthistory.org/04Jibrary/subs, 1826 F. 178 (CCD, Kan. 1886), volumes/04_c20..h.html (last visited Apr. 19,2008). 19Stale ex rei, SI. Joseph & Denver City Rv, v. Commis35260 US, 393 (1922), sioners ofNemaha County, 7 Kan. 542 (1871); Gelpcke v. 3629 Kan, 252, 274 (J 883), Dubuque, 1 Wall. (68 US.) 175 (1864). 37123 US. 623 (1887), Siaies v, Kane, 23 F 748 (CCD, Colo, J 885), JSC/1icago, B, & Q,R, Co, v. Chicago, 166 U.S, 226, 297 21 Frank v, Denver & Rio Grande Ry., 23 F. 757, 758 (CCD. (i 897). Brewer dissented there because he objected to Colo, 1885), merely nominal compensation for the taking, 22Quoted in Brodhead, Brewer, 118. 39177 US, 587,598 (1900). 113 (1876), 40Budd Peoole, 143 US. 517,551 (1892) J, 24Chicago & Northwestern Ry 35 866, 879 dissenting). (CCD, Iowa 1888). 4,94 US. 13 (J 877), 25Arnold M, Paul, Conservative Crisis and the Rule of 42Chicago & Grand Trunk Ry v. 14'ellman, 143 US. 339 Law: Attitudes of Bar llnd Bench, 1887-1895 (1960), (1892); Ames v, Union Pacific Ry. 64 F. 165 (CCD.Neb. 70-72. Joseph G. Hylton collected every primary- and 1894). secondary-source reference to Brewer's conservatism in 43Chicago, Milwaukee & St. Paul Ry v. Minnesota, 134 "David Josiah Brewer: A Conservative Justice Reconsid US. 418, 458 (1890). ered," 1994 J Sup. Ct. His!. Soc, 45, a thoughtful re 44154 US, 362 (1894), evaluation of its subject's place in American constitu 45209 US, (1908). development. I review the Progressive and neo 46 169 US. 466 (1898). Progressive historiographic which are essen 47Melvin Urofsky and Paul A March of lial the conventlonal interpretation of fuller Court, Liberty: A Constitutional History ofthe United States, in Wiecek, Lost World of Classical Legal Thought, voL ll, From 1877 to the Present, 2d cd (2002). 530. 255-63. I imply here no disparagement of this grand Smyth was overruled ill FPC v. Nalural Gas Pipeline Co., tradition. On the contrary: all my own work is written 315 US. 575 (1942). within it, 48Hylton, "David josiah Brewer," collects the cases at 26Arnold M. Pall!, "David 1. Brewer," in Leon Friedman 11.81. and Fred L. Israel, comps .. The Justices of the United 49Hy!ton, "David Josiah Brewer," 48 States Supreme Court, 1789-1969, Their Lives and 35 U.S. 100 (1890). Leisv was the most significant pro Major Opinions (1969-1978), II, 1515, 1520. hibition case to come before the Supreme Court in the 27See generally John E. Charting the Future: nineteenth century, so we might have expected it 10 show- The Supreme Court Responds to a Changing Society, Brewer's conviction that prohibition substan 1890-1920 (1978), early and thorough effort to rethink due'process questions. the conservative image ofthe Court. Peckham, on the other 51Cltal11pion Ames. 188 US. 321 (1903). Yct the follow hand, would be a perfect candidate fur the prototype of ing he incongruously joined majority in McCray unthinking reaction, v, Uniled Siales (1904). upholding Congress's authority to 28New Englander and Yale Review 256 (Aug. 1891) 97 at use its tax powers for regulatory purposes. 195 US, 27 108, 109. (1904). DAVID J. BREWER 185

52Acl of4 1887, ch. 104,24 379. Abstained in Pless), v. Ferguson: Justice David Brewer 53167 US. 479 (1897). and the Problem of Race," 61 Miss. L. J J 15 (J 991). 54[CC v. Alabama lv[idland Ry, 168 U.S. 144 (1897). 78Board ofEducalion v. Tinnon, 26 Kan. (1881) (Brewer of 29 June 1906, 3591,34 Stat. 584. dissenting). 560n the distinction between "strong" state agencies (those 79Semonche, Charting the Future, having rate-making powers) and the "weak" (those hav 80 163 US. 537 (1896). ing publicity capability only), see Thomas K. McCraw, SIBrewer abstained because of his daughter's death and Prophets of Regulation: Charles Francis Adams, Louis funeral. D. Brandeis, James M. Landis, Alfred E. Kahn (1984). 82Clyatl v. Uniled Slates, 197 U.S. 207 (J 905). US. 441 (1907). Brewer dissented without opinion. 83203 US. I, 16 (1906). 5g215 US. 452 (1910). Brewer dissented without opinion. 84 211 U.S. (1908). 59Actof2 July 1890, ch. 647, 26 Stat. 209. 85)49 US. 744 (1893) 60 156 US. 1(1895). 86See. e.g, UnitedSlales Sing TlIck. 194 US. 161 (1904); 61 Uniled StalesI'. 166 United Stales v. Ju Toy, 198 US, 253 (1905); Yamalaya v. Co. v. United H~her. 189 U.S. 86 (! 903). Stales, 175 US. 211 (1899); Northern Securities Co. 87 169 US. 649 (J 898). United Slates, J93 US. 197 (1904); Swift & Co. v. Uniled 88143 US. 457, 471, 470 (1892). 196 US. 375 (1905); Loewe v. Lawlor, US. 89Lynch v. Donnelly, 465 US. 668, 16 (1984) (Brennan, (1908). The outcome in the last case might better be 1., dissenting). explained by its hostility to labor organizations than as 90Th is was not a new theme for him: he had called supportive of antitrust policy generally. the United States a "Christian Commonwealth" while on 6216WaJI. U.S)36(1873). the Kansas supreme Wyandotte County v. First 6JFrisbie v. United Stales, 157 U.S. 160 (1895). Presbyterian Church, 30 Kan. 620, I P. 109 at 112 64[65 US. 578 (1897). ( 1883). 65198 US. 45 (1905) and 208 U.S. 161 (1908), respectively. 9iThough Justice Scalia seems to think that we are at least US. 391, 410 (1894). a monotheistic nation, McCreary County v. ACLU, 545 67 158 US. 564, 582 (1895). US. 844, 893-94 (2005) (Scalia, 1, dissenting), and has 68/n re Doolin/e, 23 Fed. 544 (1885); United Slates v. Kane, endorsed Justice William O. Douglas'S dictum in Zorach v. 23 Fed. 748 (1885). Clauson, 343 US. 306, 313 (1952), that Americans "are a 69Such enthusiasm for the use of military force was in religious people whose institutions presuppose a Supreme congruous in one who in other respects was something of Being,)) antimilitarist. Michael 1. Brodhead, "Justice David 1. 92"Justice David Josiah Brewer and the 'Christian Nation' Brewer: A Voice of Peace on the Supreme Court," 1985 Maxim," 63 Alb. L. R. 427 (1999). Yearbook oflhe Supreme COllrl Historical Society 93. 93Green, id., emphasizes Brewer's religiosity, as does 1 70This address reprinted in Alan F Westin, comp., An Gordon Hylton, "David Brewer and the Chris Autobiography ofthe Supreme Court (1963), quotations tian Constitution," 81 L. R. 417 (1998). Robert at 133, 123-24. E. Gamer, "Justice Brewer and Substantive Due Process: 71Baltimore & Ohio & v. Baugh, 149 US. 368 (1893). A Conservative Court Revisiled," 18 Vand. L. Rev. 615 72 169 US. 366 (1898). (J 965), was the earliest reconsideration ofBrewer's career 73208 US. 161 (1908); the statute was the Erdman Act thai moved beyond neo-Progressive stereotypes, empha (Act of I June 1898, ch. 370, 30 Stat. 424). sizing the values played in his judging. 74Act of II June 1906, ch. 3073, 34 Stat. 232.This statute 94Theirefforts are discussed in Green, "'Christian Nation' made common carriers liable for the death or injury of Maxim," 428-29. their employees at work, abrogated the fellow-servant rule, 95Brandeis and the ProgreSSive Constitution; Erie, the and modified the doctrine of contributory negligence. Judicial Power, and the Politics of the Federal Courts Congress re-enacted the in 1908, and this time, In Twentieth-Century America (2000), 46-63. with Brewer, Fuller, and Peckham dead, the Court acqui 96Ballimore & Ohio & v. Baugh, 149 U.S. 368 (l893). esced in Mondou v. New York New Haven & Har{ford Rr. 97Kansas Colorado, 206 US. 46. 90 (1907). (the Second Employers Liability Case), 223 US. I (1912). 98206 US. at 96, quoting Western Union Telegraph Co. " 75First Employers Liability Case, 207 463 (1908). Call Pub!. Co., 181 US. 92,101 (1901). 76208 US. 412, 1-23 (1908). 991898 address to the '"v'vu'uv Bar Association, quoted 771. Gordon Hylton considers Brewer's opinions & alti in Purcell, Brandeis and the Progressive Constitution, tudes involving African Americans in "The Judge Who 49. A Tall Tale of The, Brethren

ROSS E. DAVIES*

In their book The Brethren: Inside the Supreme Court, Bob Woodward and Scott Ann- tell a small but of the racial insensitivity of Justice Harry A. Blackmun. 1 during the and circulation of opinions in Flood v. the 1972 baseball antitrust case2 As the goes, when Blackmun circulated the first draft of his opinion in with its famously romantic salute to the old of baseball and list of "celebrated ... names" from the of the game, the list of names was as as the public schools in 1954. Blackmun had excluded African .Americans from his list of baseball celebrities. It was only when to do so by Justice Thurgood Marshall that he added black players to the list-Satchel Paige, Jackie Robinson, and Roy Campanella. It has been said that this from The curred either. There was nothing to Brethren "makes no sense, but that is not to. enough to make it false. The Brethren ac Before to the business of correct- reports some nonsensical be sliver ofthe historical it is worth havior people who worked at the to consider the value Court during the period covered bv the book WU-p"1:)e anecdote about a (1969 to 1976). buried in the middle ofa 444-page book written The Brethren claim there is documentary almost years ago. In short, the accuracy proof of their story of Blackmun-versus ofThe Brethren's Blackmun-versus-Marshall Marshall in Flood. the story is matters not only because it is false. The document from which the authors to know the truth--especially on a sub- quote-BIackmun's racially exclu as perennially salient as a Justice's views sive circulated first draft in Flood-does not on the ofrace in a decision exist and never did. Robinson, and but also because The Brethren is an Campanella were in the first circu the imoortance of which in large lated draft and thereafter. And thus Marshall's with which the stories objection to the draft never oc it tells turn out to be true. A TALL TALE OF THE BRETHREN 187

Brethren for the Washington Post. And had played a major role in the research and When it was published in 1979, The Brethren of The Final Days.9 gave the public an unprecedented look at the As time passed, The Brethren had to ofthe Supreme Court.4 Itdid so sources in a anecdotal style that made it appeal- confidential doc and accessible to the lay reader. The book's uments became and some stories told numerous behind-the-curtains vignettes also in The Brethren could be verified or falsi a wealth ofotherwise unavailable fac fied. If those stories that could be checked did tual detail about the thinking and behavior of the Justices and their staffs that made it irre or their sources, had been Court journalists, schol the Court-those truths would come The combination of out, not those sto intriguing new informa ries but also the book as a whole. After if writing made The Brethren a the stories we can check turn out to be commercial success. It was also controversial, why should we believe the stories we cannot both for its content related many less-than On the other if those stories stories about the Justices and others that could be checked did check out, then the at the Court) and for its method (it converse inference would It would be was based largely on anonymous sources and reasonable to acknowledge that the cred confidential documents).5 The book weath ibility of the stories we cannot check is en ered the early controversies and has hanced the accuracy of the ones we can. ally become a standard resource for scholars So The Brethren's checkable stories have and other commentators-and, in recent years, turned out, scattered bit by bit, episode by even some federal judges6 --seeking to under to be l-or at least not definitely stand the Court. The Jist of schol false-with the exception of a few "small er ars who have relied on The Brethren is rors" up by early reviewers. 12 This and lengthening. 7 Nowadays, whenever a new has added to the credibility and influence of Supreme Court expose appears, it is to The the book as a whole. Linda Greenhouse, the Brethren that it must first be compared.s Pulitzer journalist who covers At first, however, no ac the Court for the New York Times, cess of their own to Woodward and Arm wrote in her biography ofBlackmun that The strong's anonymous sources and confidential Brethren's "reliance on anonymous sources documents-had no basis for the sto has made that book controversial, ries told in The Brethren, other than the in in many Blackmun's case files herent plausibility of those stories and the au attest to its accuracy."13 And Professor Mark thors' reputations for reliably and who clerked for Marshall during part sorting the true from the not-so-true. On that ofthe covered by The Brethren and has front, there was at the time (and re- studied the Court ever has observed that no user and confidential accounts in The Brethren are factually sources with a more track record every point.,,14 than Woodward. He had written two of Blackmun's pa anonymously sourced and vindicated pers at the of Congress in the books about the inner UJ()rlnI1G< of the execu Blackmun-versus-Marshall in Flood tive branch of the federal All the v. Kuhn was one of the uncheckable stories. as well Now it can be checked, and it does not check as many articles based on anonymous sources out. 188 JOURNAL SUPREME COURT HISTORY

Bowie Kuhn was the commissioner for Major Curt Flood, the plaintiff in the landmark baseball an Baseball who rejected Flood's challenge, citing the titrust case, played center field for the Saint Louis propriety of the reserve clause in the contract Flood Cardinals. Although his 1969 legal challenge was had signed. ultimately unsuccessful, it brought about additional solidarity among players as they fought against base ball's reserve clause and sought free agency.

Which raises a more ques ries should be doubted (fool me once, shame tion: If some of the stories we can check are on you; fool me twice ...). The answers to true and at least one is does that make these are probably available all of the remaining unchecked stories un from Woodward and Armstrong. But the true reliable, or only some of them, or perhaps story of Blackmun-versus-Marshall in Flood none? The answer to that depends can sharpen the questions, even if it can on the answers to two intermediate questions. not answer them. This is the added value where did the false come from, of one anecdote about a the authors or a source? If the former, then baseball case buried in the middle of The all unchecked stories are to doubt. If Brethren. the latter-~if a source somehow the Which us to that anecdote: The authors-then the second arises: Did Brethren's tall tale of Blackmun-versus that source provide information for any other Marshall in the Flood case. part of the book, and if so what part or parts? If the source helped with the Blackmun versus-Marshall then perhaps the rest The Tall Tale of the book should retain the standing it en joys today, to a bit of extra Part I of Blackmun's published in skepticism crmrtpcH which he announced in Court on June the authors' for winnowing truths contains his salute to the game of from lies delivered anonymous sources, If "cele the source (or sources, if Woodward and Arm strong relied on more than one for Blackmun a list that grew from names when versus-Marshall) did more, then those sto- he circulated his first draft of the opinion on A TALL TALE OF THE BRETHREN 189

May 5, 1972. The tale of the birth and growth enty names. "The list seems ofthe list was first reported by Woodward and Blackmun wrote. He paid to Armstrong. Here is the story as they tell it on the verse at the " and other pages 190 and 191 of The Brethren, starting baseball literature. When he had fin- with Blackmun's reaction when Potter Stew Blackmun circulated his draft. art, the senior Justice in the majority after the Brennan was He initial vote in Conference on the case, assigned B1ackmun had been in the li the for the Court to him: the abortion cases, with baseball cards. Blackmun was delighted. One of clerks called from the abortion assignment, he felt Blackmun's chambers and that he had suffered under the Chief, re- Camillo a former Wash poor opinions to 10 should have c1uding more than his share oftax and Indian cases. He thought that if the Blackmun's clerk antitrust laws were applied to base the next ball, its unique position as the na Pascual and remembers his tional pastime would be undermined. fantastic curve ball. But he

A devoted fan first of the ","'u ..",.'v out his and looked up Cubs and later the Minnesota his record. He decided Pascual's 174 he welcomed this chance to be one of wins were not It is difficult the boys. to make ofwho to in With his usual devotion to de clude but Justice Blackmun felt that tail, Blackmun turned to the Base Pascual is just not in the same cate ball Encyclopedia, which he gory with Mathewson's 373 on the shelf behind his desk. He you will understand." set down minimum lifetime Blackmun's chambers to mance standards-numbers request that some favorite player be played, lifetime batting averages or included became a new game for the earned-run averages. He picked out clerks. representative stars from each of the Stewart was embarrassed that he teams, positions, and decades had assigned the opinion to Black nized baseball. closeted away mun, He tried to nudge him into rec in the Justices' B1ackmun ognizing the inappropriateness of the wrote an section that was opening section, jokingly telling him an ode to baseball. In three extended that he would go along with the opin he traced the of ion if B1ackmun would add a mem baseball. He continued ber ofStewart's home-town team, the with a list of "the many names, cele Cincinnati Reds. brated for one reason or that Blackmun added a Red. have the diamond and its en Marshall registered his protest tim- The list included no black base ball players. Blackmun that most of the players on his list ante dated World War II. Blacks had been excluded from the until Ruth .. There were more than sev 1947. 190 JOURNAL OF SUPREME COURT HISTORY

That was the point Mar dition of Paige, and Campanella. shall The" 1st DRAFT" in the Justices' files already Three black players were had all three of those names, All three men added -Jackie Robinson, Roy were still there in the "2nd " and none and Satchel 15 of the twelve added celebrities was African American. And all three remained in the fi This story has since been told and retold, nal opinion as by two in whole and in and has become ofthe more white additions, Foxx and Berg. That history of Flood, 16 Pieces of it soon checked· the three black baseball celebrities were there out as true-the bit about Stewart and the ad from the and no African Americans dition of a Cincinnati for example. Jus were added or subtracted thereafter. Moreover tice William O. Douglas's papers, which he the very labeling of the two drafts suggested had in the Library were that the version labeled" I st DRAFT" was, in- opened to the in 1986, seven years the first circulated because it had after The Brethren was published. Douglas's been while the "2nd DRAFT" file on the Flood case included three versions had been "Recirculated." If some other draft of Blackmun's Flood had been circulated to the" I st DRAFT" .. A version labeled" 1st DRAFT" and "Cir then the" 1st DRAFT" would have been culated: 5/5/72." This draft featured a list of labeled "Recirculated" too. Furthermore, there only "celebrated names," and was the word of Blackmun himself. He re not one ofthem had been a Cincinnati Red. 17 acknowledged the provenance of the .. A version labeled "2nd DRAFT" and "Re addition his 1995 interviews with circulated 5/25/72," In this draft, there were Professor Harold Koh for the Justice A. twelve more baseball greats on the list, one Blackmun Oral History and alluded 21 of whom was Reds pitcher 18 to it in correspondence But he consistently .. A copy of the final slip opinion, dated June denied the Blackmun-versus-Marshall story in 19, 1972, with two more names on the list: his (it did not come up during Jimmie Foxx and Moe The story of the oral history 22 their addition is not relevant and is well is, however, not the told is the entire story of the Flood case) same as proving a Who knows, per in Brad A Well-Paid Slave: Curt haps Blackmun did circulate some sort ofpre Flood's for Free Agency in Profes draft before the "1st DRAFT" in the sional Sports. 19 Justices' files. Finding a needle (the added Cincinnati Red) in the proverbial haystack is When they were to the public dur one thing; there is no needle the the papers of Justices Marshall exclusive circulated draft) is and William J. Brennan, Jr. revealed Flood another. files that matched the one in the In there is good reason for the included the same ver careful reader to discount Blackmun's state sions of Blackmun's Flood opinion, and no ments that there was no dispute with Mar more. 20 shall over African Americans on the list of while the "I 8t DRAFT" and "2nd "celebrated names." experience teaches DRAFT" of Blackmun's Flood opinion in that some public sometimes resort to the files of Brennan, and Marshall of memory, arttully men supported the anecdote about the addition dacious of the English or of a Cincinnati they undermined the simple falsehood when recalling their foibles Blackmun-versus-Marshall story about the ad and mistakes or their legacies. This A Of THE BRETHREN 191

A Minnesota Twins fan, Justice Blackmun (pictured) was passionate about the game and collected base· ball memorabilia. This annual pass to the Ameri· can league, good for the year 1970, belonged to Blackmun. 192 JOURNAL OF E COURT HI

is not to say that Blackmun lied when he de finished, Blackmun circulated his draft." It is nied the conflict with Marshall. it is to this draft, to which Stewart re- say that his word standing alone cannot serve that BJackmun add a in this context, no matter how honest he was Cincinnati and to which Marshall ob in fact. that skepticism is a jected on the that its list of "cele for which he and all other public servants can brated names" lacked African Americans. As thank members ofall three branches Woodward and ofthe federal government who have inac curate accounts of their behavior on ly to have we have had direct access to their misstatements discovered and disclosed, the or to copies," including "unpub to the shame of the institution, if not the in lished drafts opinions.,,27 the dividual. And then there is the im from the exclusive first draft must perfection of human memory that occasion be from a document that the authors had in ally afflicts Supreme Court Justices as hand when wrote the Blackmun-versus it does the rest of us. There is also some Marshall story, not recitations from an cause to suspect Blackmun's recall anonymous source who told the authors what of matters relating to The Brethren. For ex some document said. And thus there is no need ample, in his Oral History, he minimizes his to independently identify and corner an anony own role as a source for The Brethren, say mous source~a practically as "One of them did come in and talk to ofThe Brethren have me a little. It was a very short interview."24 All that is necessary to check the In Blackmun's own records show that he Blackmun-versus-Marshall story is to check met with at least and that the document-the draft Blackmun circulated he looked into and was Arm- If Black background and credentials.25 His ap mun circulated such a then Mar book for 1978 shows meetings with shall's reaction and Blackmun's response are on Thursday, July 6 at 2:30 p.m., just about as plausible as the believ and Friday, September 15 at 3:00 p.m., and able story of Stewart's request for the addition of Cincinnati Red. But if Blackmun did not show the same two circulate such a document, then there also was mun misremembered the number of drafts he never a reaction against and thus circulated in Flood,just as he misremembered no such racial between the two Justices the extent of his engagement as a source for in Flood. The Brethren, including the number of times No such document appears, or is re he met with Armstrong. ferred to, in the other Justices' files. And The Blackmun-versus-Marshall story is, four features of Blackmun's papers show that more to proofor disproof whatever The Brethren was quoting from than many of the stories in The Brethren, be in the story of Blackmun-versus-Marshall, cause the story stands or falls on the content it was not a racially exclusive draft circu of a document, not on the memory of a per lated bv Blackmun. Thus, the Blackmun son, whether an anonymous source or a named versus-Marshall in The Brethren is not Supreme Court Justice. true. Recall that in the second paragraph First, Blackmun's Flood files contain two of the passage from The Brethren quoted of correspondence with Justice Pot the authors describe in detail Black ter Stewart which, taken reveal the mun's preparation of his first draft, impossibility of a circulated draft from it twice, and concluding, "When he had predating the "5/5/72" 1st DRAFT" in the A TALL TALE BRETHREN 193

and Marshall. Six weeks Blackmun wrote to Stewart as Stewart announced follows: of the opinion for the Court to May 4,1972

Re: No. 71-32 Flood v. Kuhn March 20, 1972 No.71-32 Floodv. Kuhn Dear Potter: I have a nt·,."",,,·"",,,,, Per Curiam for Dear I have asked Harry Blackmun to this case at the Printer. I must con undertake the writing of the opin fess to you that I have done more than merely follow Toolson with a bare ion for the Court in this case, which, The case, for hopefully, can be a rather brief per one, curiam. by out- The Chief Justice to the As a matter

Blackmun's notes on Flood indi U1VUUJ" ....u me to conclude that fed cate that when he made the """'15''''''''«, Stew eral Baseball and Toolson have a lot art did so with a to be said for them. When I finally get

Satchel Paige, Jackie Robinson (pictured), and Roy all appeared on Blackmun's list of baseball's all-time greats. At issue is whether the Justice had prepared an initial draft that had not contained the names of any African American players. 194 JOURNAL E COURT HISTORY

to the heart of the matter, case and the case number at the and lists it rather summary treatment. The down the right-hand side of the sheet the dates brief" on both sides are good and I ra on which the decision was announced and tionalize by saying that they deserve on which drafts were circulated the first at least this much. draft) and recirculated (for Please the opinion a read The rest of the sheet is devoted to other data ing and let me have your general re about the case, including the dates on which actions. The case, supposedly, is criti other Justices joined BJackmun's and cal for the baseball world. [ am not so the circulations of concurrences and dissents sure about that, for I think that how others. During the 1970-71 and 1971-72 ever it is decided, the sport will Terms-Blackmun's first two Terms on the and continue32 and the period and and announcement of his Flood Thus, on May 4, 1972 Blackmun is warn opinion-whenever he circulated a draft ing Stewart that his draft in Flood is ion, he always recorded that circulation on the an elaborate piece of work, more than the brief corresponding opinion sheet.33 per curiam Stewart had and that it I have examined every of paper in is at the printer-meaning not yet for every case file of every Justice whose pa circulation, but soon. The next day, May 5, pers are open to the public for every case 1972, Blackmun circulates the" 1st DRAFT" in which Blackmun wrote an opinion for the that can be found in the files Bren Court or a substantial per curiam opinion dur nan, and Marshall. There would have been ing the 1970--71 or 1971-72 Term. In every no point in sending the 4 note to Stew case, Blackmun's sheet corre art if Blackmun had circulated a draft sponds perfectly to the circulated and recir "somewhat extensive" culated drafts in those files, And he was including the list of "celebrated names. If Consider NLRB v. Scrivener,35 like he had already circulated such a then Flood a 1971-72 Tcrm case, in which his cor Stewart would have known that he had reveals that Black mun insisted on ofa formal "join" letter bare peremptory from so that his "records [would be] complete.,,36 Stewart a heads-up The opinion sheet for Flood v. Kuhn (and surely un Blackmun's invariably expected in other ways, the list of record-keeping. It baseball I st DRAFT" that was in found in the files of the works. And he did. the five Justices whose papers are open to the Blackmun's papers reveal his public: opinion-circulation and III "Circulated: 5/5/72"-the "1st DRAFT' in which in turn reveal the Justices' files. he circulated in Flood III "Recirculated: 5125172"-the "2nd were the version labeled "1st DRAFT" and DRAFT" in the Justices' files. "Circulated: 5/5172" and the version labeled III "Announced: 61l9/72"-the slip opinion in "2nd DRAFT" and "Recirculated: 5i25172." the Justices' files. Blackmun an "opinion log sheet" for every case in which he wrote an opinion for Like his NLRB v. Scrivener file, Black- the Court or a substantial per curiam opin mun's log sheet for Flood reflects ion. Each sheet begins with the name of the his penchant for comprehensively accurate A TALL TALE OF THE BRETHREN 195 record-keeping: it includes a correction to the one of whom was Reds pitcher Eppa Rixey date of assignment, changing it from March and none ofwhom was African-American; and 20, 1972 (the date when Stewart notified the (3) the final slip opinion, with Berg and Foxx Court that he had assigned the Flood opin slipped in. 39 ion to Blackmun) to April 3, 1972 (the date In sum, the evidence in Blackmun's pa on which the Court's assignment list formally pers, combined with the evidence in the papers recorded Stewart's assignment of the opinion of Douglas, Brennan, and Marshall, leaves to Blackmun).37 no room for the circulation of a segregated Third, Blackmun's Flood files contain first draft ofBlackmun 's Flood opinion. (Mar a five-page document consisting of proof shal! 's papers, by the way, contain no hint of reading and cite-checking corrections to any dispute of any sort, racial or otherwise, Blackmun's Flood opinion,most of which are over Blackmun's list of "celebrated names.") reflected in the " I st DRAFT." The document is Consider the following: dated "5/4/72" and signed "JTR" (the initials of John Townsend Rich , one of Blackmun's • If the story in The Brethren were true, then clerks at the time). Blackmun might have had Blackmun's May 4, 1972 note to Stewart a practice of circulating drafts of his opin would not exist, because it reflects Black ions to the Court and only afterward enlisting mun's knowledge that Stewart had not as of his clerks to proofread and cite-check those that date seen Blackmun 's "somewhat exten opinions. Such a course would have been odd, sive[]" draft in Flood. even silly, and so it should come as no sur • If the story in The Brethren were true, prise that he did not operate that way. All of then Blackmun's opinion log sheet for Flood the evidence in his case files for the 1970-71 would be inaccurate, even though there is not and 1971 - 72 Terms indicates that Blackmun's a single instance in any case from the 1970 clerks squeegeed his opinions before the first 71 or 1971-72 Terms in which a Blackmun circulation to the other Justices, not after. 38 opinion log sheet is inaccurate about any cir And so Rich's notes comport neatly with the culation of any draft of any of his opinions. timing of Blackmun's May 4 note to Stew • If the story in The Brethren were true, then art warning him of the "somewhat extensive" Rich would have proofread Blackmun's first draft of his Flood opinion that had just gone circulated draft in Flood after that draft had to the printer. Rich finished proofreading and circulated, even though there is not a single cite-checking on May 4, Blackmun promptly instance in any case from the 1970-71 or reviewed Rich's work and incorporated most 1971-72 Terms for which a proofread has of it, then sent the draft off to the printer and been preserved where a Blackmun clerk en warned Stewart of what would circulate the gaged in such nonsensical behavior. They next day-"5/5/72"-as the "1 st DRAFT" of proofed before circulation, not after. Flood. • If the story in The Brethren were true, then Fourth and finally, Blackmun 's files on the not a single Justice whose files are open Flood case contain only the same three ver . to the public would have saved the racially sions of his opinion that are available in the exclusive draft reported and quoted in The papers ofDouglas, Brennan, and Marshall : (I) Brethren, even though everyone of them The version labeled "1 st DRAFT" and "Circu who participated in the case saved every lated: 5/5/72," with a list of only seventy-four other draft. "celebrated names," including Paige, Robin • If the story in The Brethren were true, son, and Campanella; (2) the version labeled then the Blackmun opinion in the Justices' "2nd DRAFT" and "Recirculated 5/25/72," files labeled "1st DRAFT" and "Circu with twelve more baseball greats on the list, lated: 5/5/72" that includes the three great 196 JOURNAL OF SUPREME COU HISTORY

African American would have been past. The Brethren is a hard case, because labeled "2nd DRAFT" and much ofits evidence is inaccessible. Its sources because it would have been are anonymous and confidential. That means the draft from which Woodward there is no way for later students ofthe Court to and quote. But there already is return to that to reassess it, to com a version in each of those files labeled bine it with new discoveries in order to improve "2nd DRAFT" and "Recirculated"-the one our of the Court. As Professor dated "5/25172" that features only a few ad Walter Murphy observed in a review of The ditional white Rixey, Brethren, "The longs to see the Cincinnati Red. the full documents and to hear the tapes of the interviews, not only to check the accuracy of The bottom line is that B lackmun 's first the authors' work but also to testothcr ideas.,,42 circulation in Flood was the" I Sl DRAFT" Woodward and Armstrong's surely dated "5/5/72" that appears in all of the Jus enabled them to uncover many true stories that tices' files and that contains the names of would otherwise have remained hidden, at least the for a but it also disabled others from African-American building on their work, at least in the conven Jackie Robinson, and Roy tional cumulative and synthetic senses. But at mun did not circulate a racially exclusive draft. the very least, we can still compare a story pre It follows that any about Marshall be- sented in The Brethren with a story based on offended by such a draft is wrong, because records and new the basis for such a circulated draft and weigh their merits. opinion--does not exist. Marshall and Black Which brings us to the questions sug mun certainly had on matters of earlier in this article: What document race at the 40 but the integration ofBlack were Woodward and Armstrong from? mun's list of baseball celebrities in Flood was Where did it, and the story ofMarshall's not one of them. . come from? And did the source Of sources **** for Blackmun-versus-Marshall contribute to The fact that The Brethren contains in any other stories in The Brethren? We are accuracies should come as no No unlikely to learn the answers to these ques of the Court or any tions unless Woodward and Armstrong's re other subject is (or likely ever will be) en search files for The Brethren are opened to tirely accurate. Authors err. So do the public, as Woodward and Carl Bernstein's printers, and files for All the President's Men and The Fi and electronic records can nal Days have been at the University or inaccurate. Human sources with files each confidential source can be mistaken or misleading. And new dis sealed until the source's death 43 For The Brethren, that is unlikely to happen any time soon. After nearly all of the sources for the book spoke to Woodward and Arm- on condition of 44 Many of service that historians provide to each them were young at the time and are likely to be to their subjects. and to the public. This kind for their livelihoods and social stand- ofwork involves rp"""p"" evidence on their for discretion or combining new discoveries with that ev and confidence-keeping for many years It idence to present a different-and, the revi may well be that Woodward and Armstrong sionist hopes, more accurate--oicture of the would to endure whatever small doubts A TAll TALE OF THE BRETHREN 197 might be raised by this article rather than break I sent a follow-up invitation of my own their to the source or sources of the to Woodward and Armstrong early in 2008, Blackmun-versus-Marshall story45 and postponed In the the careful reader ofThe summer issue in order to Brethren consider, on the one hand, that time to draft a an observers of the Court have con interest in but in the end nothing was cluded that accounts in The Brethren from either him or Woodward. It are accurate on nearly every would have been nice to include their perspec and "in many instances, Blackmun's case files tive here and now, but it appears that we wi II attest to its accuracy,,,47 and, on the other have to wait for a later issue ofthis Journal, or hand, that in at least one instance-the story for another forum. of Blackmun-versus-Marshall in Flood-the book is not accurate. For students of the ENDNOTES Court, perhaps the best approach to The Brethren for the time being is the one to IThe Brethren: Inside the Supreme Court 190-91 which President Ronald Reagan treated Presi (1979) (hereafter The Brethren). 2407 US. 258 (1972). dent Mikhail Gorbachev: Trust, but verify.48 3Brad Snyder, A Well-Paid Slave: Curt Flood's Fight for Free Agency in Professional Sports 301 (2006) (hereafter *Thanks to Adam Bonin, Bennett Boskey, Well-Paid Slave). Ofemi Davies, Vincent Ga 4Earlier profiles the Court, such as Drew Pearson and David Garrow, Paul Robert S. Allen's Nine Old Men (1936) and 1. Harvie Anthony Wilkinson's Serving Justice: A Supreme Court Clerk's View (1974), had been anywhere near as revealing of interior workings. 5See. e.g., Anthony Lewis, "Supreme Court Confidentia 1," Mason Law & Economics Center. N. Y. Rev. Books, Feb. 7, 1980 (hereafter "Supreme Court 2007 Ross E. Davies. All fights Confidential"); "The Evidence of The Brethren: An Ex· reserved. change," N. Y. Rev. Books, June 12, 1980 (hereafter "The Evidence of The Brethren"); John G. Kester, "Breaking Confidences," The Washingtonian, Feb. 1980; see also Dennis 1. Hutchinson, The Man Who Once Was Whizzer Editor's Note White 384-86 (1998) (hereafter Whizzcr White); Adrian Havill, Deep Truth: The Lives of Bob Woodward and Ross Davies, the author of "A Tall Tale of The Carl Bernstein 130-35 (1995). Brethren," sent a draft of the article to Bob 6See, e.g., Landell v. Sorrell, 382 F.3d 91, 109 (2d Cil'. Woodward and Scott in September 2004), rev'd 126 S. Ct. 2479 (2006); Larsen v. US Navy, 2007, along with an invitation: 346 F. Supp. 2d 122, 132 £1.5 (D.ne. 2004). 7See. e.g, Neal Devins, "Should the Supreme Court Fear is sched Congress?," 90 Minn. L. Rev. 1337, 1341 (2006); Linda issue of Greenhouse, "How Not to Be ChiefJustice," 154 U Pa. L. Rev. 1365, 1369 (2006); James 1. Brudney and Corey Dit~ "Canons of Construction and the Elusive Quest for Neutral Reasoning," 58 Vand. L. Rev L, 44 (2005); Clarke D. Forsythe and Stephen B. Presser, "The Tragic Failure of Roe v Wade," 10 Tex. Rey. L. & Pol. 85, 127 (2005); San~ ford Levinson, "The Pedagogy orthe First Amendment," from you before we go to press. 52 UCLA L. Rev. 1359,1361 (2005); see also G. Edward I am told by the editor of the Journal White, The American Judicial Tradition chs. 13 & 14 & 523 n.124 (3d ed. 2007) (describing The Brethren as that she would be to consider "a source on the internal history of the Burger Court that printing a reply from either or both of needs to be used with great care"). A search for "wood~ you. ward /5 armstrong 15 brethren" in West law's jlr database 198 JOURNAL OF SUPREME COURT HISTORY

of law reviews and similar periodicals on March 30, 2007 liberations over the Flood case that his ownership ofshares turned up 492 documents. of Anheuser-Busch, which owned the St. Louis Cardinals 8See, e.g., David 1. Garrow, "Breaking Silence and Le baseball team, a respondent in Flood, obligated him to gal Ground," L.A. Times, Jan. 23, 2007 (reviewing Jan disqualify himself, and he did so. Memorandum to the Crawford Greenburg's Supreme Conflict); Rodger Cit Conference (Mar. 21, 1972), in Powell Papers, box 148. ron, "A Peek Into the Marble Palace," Legal Times, May The papers ofthe other members ofthe Court at the time 29,2006 (reviewing Todd Peppers's Com·tiers ofthe Mar Chief Justice Warren Burger and Justices Potter Stewart, ble Palace); Kim I. Eisler, "Truth Teller or Sore Loser?," Byron R. White, and William H. Rehnquist-are not yet Legal Times, Apr. 27, 1998 (reviewing Edward Lazarus's open to the public. Closed Chambers). 21The Justice Harry A. Blackrnun Oral History Project 9Carl Bernstein and Bob Woodward, All the President's 184,186,293 (1994-95) (hereafter Oral History); Harry Men (1974); Bob Woodward and Carl Bernstein, The Fi A. Blackmun to Jim Caple, Feb. II, 1997, in Papers of nal Days (1976). Harry A. Blackrnun, Library ofCongress, manuscript Di IOYictor S. Navasky, "The Selling ofthe Brethren," 89 Yale vision, Box 145, Folder 3 (hereafter "Blackmun Papers"). L.J 1028, 1030 (1980). 22See, e.g., Harry A. Blaekmun to Daniel Crystal, Oct. II Compare, e.g., The Brethren at 357 el seq. with 9, 1980, ill Blackrnun Papers, Box 145, Folder 3; Harry Whizzer White at 434-35, 463-65 (1998); Bruce Allen A. Blackmun to Jim Caple, Feb. II, 1997, in Blackrnun Murphy, Wild Bill ch. 38 (2003). Papers, Box 145, Folder 3. 12See, e.g., Walter F Murphy, "Spilling the Secrets of the 23 Compare, e.g., Justice Thurgood Marshall, Memoran Supreme Court," Wash. Post Book World, Dec. 16, 1979, dum to the Conference (Oct. 4,1984), in Blackmun Papers, at II. box 1405, folder 14, reprinted in "NAACP Recusals," 10 13Linda Greenhouse, Becoming Justice Blackmun: Green Bag 2D 93,93-99 (2006), with Milliken" Bradley, Harry Blackmun's Supreme Court Journey 254 (2005) 418 U.S. 717, 722 (1974); id at 781 (1974) (Marshall, (hereafter Becoming Justice Blackmun). 1., dissenting); Meek v. Pillenger, 421 U.S. 349, 356 n.5 14Mark V Tushnet, Making Constitutional Law: Thur (1975). good Marshall and the Supreme Court, 1961 240ral History at 292. 1991 at viii (1997) (hereafter Making Constitutional 25See Memorandum from "sjb" to "Mr. Justice" (Jan. 17, Law). 1978), il1 Blackmun Papers, Box 1435 ("sjb" were the 15The Brethren at 190-91. initials ofBlackmun's secretary, Shirley 1. Bartlett). 16See, e.g., Andrew O'Toole, The Best Man Plays 97 26See 1978 Appointment book, in Blackmun Papers, Box (2003); David Greenberg, "Baseball's Con Game," Slate, 61, Memorandum from "sjb" to "Mr. Justice" (June 30, July 19, 2002; Roger I. Abrams, "Before the Flood," 9 1978), ill Blackmun Papers, Box 1435; see also Becoming Marq. Sports L.J 307.311 (1999); Tony Mauro, "Would Justice Blackmun at 153. the Court Go to Bat for Baseball?," Legal Times, Aug. 29, 27The Brethren at 4. 1994; Chad Millman, "Bench Player," Sports lIIustrated, 28See, e.g., "Supreme Court Confidential"; "The Evi Apr. 18, 1994; Max Yobiscum, "The Supreme Court's dence ofThe Brethren"; David 1. Garrow, "The Supreme Sports Page," (Passaic County, NJ Bar Association) ReCourt and The Brethren," 18 Const. Commentary 303 porter, Aug.-Sept. 1980, at 40; "Games Justices Play," (2001); see also. e.g., L.eonard Garment, In Search of Newsweek, Dec. 10, 1979, at 88. Deep Throat chs. 4 & 5 (2000). 17Flood v. Kuhn, 1st Draft at 4-5 (May 5, 1972), in Papers 29Stewart had the privilege of assignment because he was of William O. Douglas, Library of Congress, Manuscript the senior Justice in the majority at the time. Division, Box 1561 (hereafter Douglas Papers). 30Memorandum from Justice Potter Stewart to Chief Jus 18Flaod v. Kuhn, 2d Draft at 4-5 (May 25, 1972), in Dou tice Warren Burger (March 20, 1972), ill Douglas Papers, glas Papers. Box 1561. 19Well-Paid Slave at 305-6. 31Handwrittennote dated "3-20-72," in Blackmun Papers,

2oFIood v. Kuhn, J st Draft at 4-5 (May 5, 1972) and Flood Box 145, Folder 1 CPS [Potter Stewart] Asks me to PC v. Kuhn, 2nd Draft at 4-5 (May 25, 1972), in Papers of [per curiam] this essentially along t[he]lincs of Toolson William J. Brennan, Jr., Library of Congress, Manuscript & nrot] too long"). Division, Box I:268, Folder 2; Papers of Thurgood Mar 32Mernorandum from Justice Harry A. Blackrnun to Mr. shall, Library of Congress, Manuscript Division, Box 87, Justice Stewart (May 4, 1972), in Blackrnun Papers, Box Folder 10 (hereafter Marshall Papers). The Flood file in 145, Folder 2. the papers of Justice Lewis F. Powell, Jr. contained no 33This is not to suggest that in later years he did not con draft opinions at all. Lewis F. Powell, Jr. Papers, Washing tinue this practice. Rather, it did not seem necessary to go ton and Lee University School of Law, Lewis F. Powell, Jr. beyond the 1970-71 and 1971-72 Terms for the purposes Archives, Box 148. Powell determined early on in the de of this article. A TAll OF THE BRETHREN 199

34Compare Justice Blackmun's opinion log sheets for the Court 321-22 (2007); Jeffrey Toobin, The Nine: Inside 1970-71 and 1971-72 Terms, in Blackmun Papers, Boxes the Secret World of t he Supreme Court 342 (2007). 118, 133, with the corresponding case files in the papers 42Walter F. Murphy, "Spilling the Secrets of the Supreme ofJustices Douglas (boxes 1507, 1511, 1516, 18, 1542, Court," Wash. Post Book World, Dec. 16, 1979, at 10. 1543, 1545, 1547, 1549,1551, 1561), Brennan (boxes Scholars should be cautious, however, about exaggerat 1:233,1:236,1:239,1:240,1:244,1:246-1:248,1:257,1:258, ing the importance of source-transparency in their work. 1:259,1:261,1:263,1:265,1:267, [:268, 1:273, 11:3), Mar Plenty of important and reputable scholarship generated in shall (boxes 80, 81, 83-85, 87,90,91), B1ackmun (boxes the academy shares The Brethren's source-opacity. Con 120-22, 124, 125, 127, 129, 130, 134-40, 142, 145), and sider, for example, John W. Kingdon's highly regarded Powell (boxes 146-(9). study of decision-makmg in the execlltive and legisla 35405 US. 117 (1972). tive branches of the federal government, Agendas, Al 36Memorandum from Justice William Douglas to Jus ternatives, and Public Policies (2d edt 2003). Kingdon's tice Harry A. Blackmun (Feb. 16, 1972) and Memoran book is based largely on interviews wilh "many con dum from Justice Harry A. Blackmun to Justice William gressional staffers, administration appointees, civil ser Douglas (Feb. 16, 1972) in Blackmun Papers, Box 142. vants, lobbyists,journalists, researchers, and consultants" When asked recently about Blackmun's papers, Justice conducted during the late 1970s-the same period in Ruth Bader Ginsburg noted that "he was a great saver; which Woodward and Armstrong were doing their rc he didn't toss anything." "An Open Discussion with for The Brethren. "I guaranteed [the interviewees) lust ice Ruth Bader Ginsburg," 36 Conn. L. Rev. 1033, their anonymity," writes Kingdon, "so cannot acknowl 1042 (2004). This is to say that he knew all, all, edge their help by name. But this book could not have and accurately recorded all that he knew and saw-see, been written without their generous cooperation." ld. at e.g, id. at 1042 (recalling that he mistakenly noted an ad xvii, 23233. Just like The Brethren. See a/so, e.g., Ben vocate had worn a red dress at oral argument when in fact net Boskey, "Justice Reed & His Family ofL3w Clerks," in had worn black)--but rather that his compilations of Bennett Boskey, Some Joys of Lawyering 14 n.4 (2007) documents relating to particular cases can generally be (observing "that the claims of history, journalism, and bi counted on to be complete. ography strongly press against principles ofprivacy. confi 37See Assignment List (Apr. J, 1972), in Marshall Papers, dentiality and ethics. There is not always asimple answer to Box 75. questions of how much should be published how soon."). 38See generally Blackmun Papers, Boxes 119-31, 134-47. 43See The Woodward and Bernstein Watergate Papers: 39See Blackmun Papers, Box 145, Folder I About the Papers, available at http://www.hrc.utexas. 40See, e.g, Palmer v. Thompson, 403 US. 17 (1971); edufexhibitions/web/woodstein/abouU (last visited Apr. Palmer v. Thompson, lSI Draft at 3 (Apr 29, 1971)(Black 20, 2008); Lee Hockstader, "Watergate Papers Sold For mun, 1., concurring), in Blackmun Papers, Box 124, Folder $5 Million," Wash. Posl, Apr. 8, 2003, at CI; see also, 10; Becoming Justice Blackmun at 67-68; see also Deb e.g., Bob Woodward, The Agenda: Inside the Clinton orah C. Malamud, "[ntuition and Science in the Race White House 12 (1993). Jurisprudence of lust ice Blackmun," 26 Hastings Const. 44The Brethren at 3--4. L.Q. 73, 84-88 (1998); Henry 1. Abraham, Justices, Pres 45See Cohen V. Cowles Media Co., 501 663 (1991); idents, and Senators: A History of the U.S. Supreme but see "The Evidence ofThe Brethren," Court Appointments from Washington to Clinton 230 46Making Constitutional Law at viii. 33 (rev. edt 1999). 47Becoming Justice Blackmun a[254. 41This approach to studying the Court has shown signs of 48William Safire. "Nyet Problemy on Snow Jobs, NY enduring popularity in recent times. See, e.g., Jan Craw Times. Jan. 1988, 6, at 6 (Reagan: "Though my pro ford Greenburg, Supreme Conflict: The Inside Story of nunciation may give you difficulty, the maxim is doveryai the Struggle for Control of the United States Supreme no proveryal. 'Trust but verify. "'). The Judicial Bookshel'f

D. GRIER STEPHENSON, JR.

The first meeting of Politics 514 for fall semester 1964 was scheduled for Thursday af ternoon, September 24, coincidentally the 209th anniversary of the birth of Chief Justice John Marshall. As an exceedingly green first-year student in the Graduate School, 1 made my way to "A" level (one floor below the first floor) of Princeton University's Firestone Library a few minutes before two o'clock. A short distance from the stairwell, I found the Politics Department seminar room and took a seat at the table. Promptly on the hour, Professor Alpheus Thomas Mason entered the room, greeted the dozen beginning and continuing students present, and occupied a chair with his back to the window. There followed an hour's discourse from this celebrated judicial biographer i on what awaited us during the Term: an adventure in American constitutional law. Without notes and with the captivating voice of an orator, he drew from the words of James Madison, James Wilson, Alexander Hamilton, Thomas Jefferson, and Marshall so extensively and with such familiarity that Twondered whether, during nearly four decades of teaching, he had somehow divined a way to commune directly with the founding generation. After he made clear his expectations and explained how the course would proceed, I then grasped why this seminar, although deservedly praised as one of the best taught in the Graduate School, was rarely heavily enrolled: He expected each student, each week, to write a research paper of nine to twelve pages. An initial focus of the course, Professor theme: not only Marshall versus Jefferson and Mason continued, would be the "great antag Jefferson versus Hamilton, but Marshall versus onists." The cadence of his speech slowed as Andrew Jackson, Marshall versus John Banis he spoke the two words, and he paused ever so ter Gibson, and so on. It was, and is, an intrigu slightly for effect between them. "I'm referring ing idea. Examination of the tensions between to Marshall and Jefferson," he added, in case the thinking and action of such individuals his point had sailed over anyone's head. But would lay bare the polarization in the Amer then he digressed. An entire course on Amer ican political tradition between long-standing ican constitutional and political development, principles such as fundamental law and popu he explained, could be organized around that lar sovereignty. And lurking within that tension THE JUDICIAL BOOKSHELF 201 was the question of whom or what within the American political should monitor and resolve that tension. Ifone prepared a course similar to the one Professor Mason outlined, several recent books on the Court and its Justices would compete for space on the Among them is Lincoln and Chief Justice Taney by James F. Simon of New York Law School.2 The book's subtitle and the President's War much, and some of Simon's demonstrates that he is hardly a stranger to the theme.J His book offers a window into the lives of two key in the high drama that un folded in the United States. some common and Lincoln and Chief Justice Taney by James F. Simon values, in crucial respects the between of New York Law School examines the antagonistic these individuals proved to be as deep relationship between Abraham Lincoln (pictured) and Roger Brooke Taney. as it was wide. The future fifth Chief Justice was born into Maryland plantocracy in some thirty-two years before the sixteenth President's on the Kentucky frontier. For Marshall, the Necessary and Professionally, both Roger Brooke Taney and Clause gave a discretionary choice Abraham Lincoln became successful of means in implementing powers. As and enjoyed modest success in state " ..","H"'.' a result, not only those Morally, like Taney, powers delegated by the Constitu of slavery but was more than but an indefinite number ofothers as to defend the property of slave own unless prohibited by the Constitution. More ers. owned slaves but gave them their over, the breadth that the Constitution allowed freedom. Both men were active in coloniza in a choice of means was a matter for tion societies that strove to relocate free blacks not the judiciary, to decide. Thus, from the United States to self-governing com Marshall established not the proposition munities in Africa. Politically, Taney",""".. ..",",,, that national powers must be liberally con the orientation ofAndrew Jackson strued, but also the equally decisive principle and the Democratic party, while Lincoln iden that the Tenth Amendment does not create in tified with and the National Re the states an ""lfjp"''''nfipnt limitation on national publicans, who were soon to be called "authority. A of the Union could not be al Jurisprudentially, these affinities meant that lowed to the whole. Lincoln was comfortable with ChiefJohn Mar contrast, the of federalism shall's doctrine of national supremacy, which common to Marshall'8 critics insisted that the Chief Justice had boldly defended in Mc the Constitution was a compact of Culloch v. Maryland4 when he affirmed the states, not an ordinance of the people. The na constitutionality of the Second Bank of the tional and the states faced each United States and Maryland's other as across a constitutional to destroy the bank by it. line defining their respective jurisdictions. 202 JOURNAL OF SUPREME COURT HISTORY

Accepting the basic creed of nation-state the executive, and the court must each for itself equality, Taney stripped it of its anarchic im be guided by its own opinion of the Constitu plications. After all. Taney was thoroughly fa tion.... It is as much the duty of the House miliar with John C. Calhoun's doctrine of nul of Representatives, of the Senate, and of the lification, which claimed the authority of a President to decide upon the constitutionality state to be the judge of the validity of national of any bill or resolution which may be pre policy, a position that led South Carolina to sented to them for passage or approval as it is challenge President Andrew Jackson's author of the supreme judges when it may be brought ity in 1832. For Taney, within the powers re-' before them for judicial decision. The opin served by the Tenth Amendment, the states ion of the judges has no more authority over were sovereign, but final authority to deter Congress than the opinion of Congress has mine the scope of state powers rested with over the judges, and on that point the Presi the national judiciary, an arbitrator standing dent is independent of both. The authority of aloof from the sovereign pretensions of both the Supreme Court must not, therefore, be per nation and states. "This judicial power," Taney mitted to control the Congress or the executive wrote in Ableman v. BoothS some twenty-three when acting in their legislative capacities, but years after Jackson picked him to succeed Mar to have only such influence as the force oftheir shall as Chief Justice, "was justly regarded reasoning may deserve."7 as indispensable. not merely to maintain the After he was elected in 1860 to succeed supremacy of the laws of the United States, James Buchanan, Lincoln drew upon the same but also to guard the states from any encroach theme for his first inaugural address in re ment upon their reserved rights by the gen jecting the constitutional force of a decision eral government. ... So long ... as this Con that not only occupies a prominent place in stitution shall endure, this tlibunal must exist Simon's narrative, but has long been practi with it, deciding in the peaceful forum ofjudi cally synonymous with the Taney Court: Scott cial proceeding the angly and irritating contro v. Sandford. 8 "[T]he candid citizen must con versies between sovereignties, which in other fess," Lincoln observed, "that if the policy of countries have been determined by the arbitra the government, upon vital questions, affect ment of force.,,6 Thus, for Marshall's concept ing the whole people, is to be irrevocably fixed of national supremacy, the Taney Court sub by decisions of the Supreme Court, the instant stituted a theory of federal equilibrium, some they are made, in ordinary litigation between times called dual sovereignty or dual feder parties, in personal actions, the people will alism. Yet Marshall and Taney were agreed have ceased, to be their own rulers, having to on one essential point: The Supreme Court that extent, practically resigned their govern provided a forum for keeping conflict within ment, into the hands ofthat eminent tribunal.,,9 peaceful bounds. That fateful deCision had an oversized im As circumstances unfolded, it had fallen pact on the careers ofLincoln and Taney. With to Taney as Jackson's Treasury Secretary to out it, Taney's stature as Chief Justice would draft the President's explanation for a veto certainly be more enhanced today, perhaps of Congress's renewal of the Bank's charter ranking him second only to Marshall among in 1832. Taney's memorandum upended Mar the Chief Justices. Without it, Lincoln might shall's thinking on the constitutionality of the never have become President of the United Bank, and indeed on the Court's place in the States. The case is so central to Simon's book constitutional order: "If the opinion of the that it merits at least a brief review here. Supreme Court covered the whole ground of In 1852, the Missouri Supreme Court is this act, it ought not to control the coordinate sued a ruling in the litigation that became authorities of this government. The Congress, known as the Dred Scott case. The case was THE JUDICIAL BOOKSH 203 actually two cases, one pursued in the courts Court's 1851 decision in Strader v. of Missouri and the other in the federal courts. Graham. 12 In the US. Supreme Court, Scott v.

Combined, the cases commenced in 1846 and VlfilfJlflrtJ was argued twice: in and ended in 1857. At one level, the litigation in December of 1856. Setting the case for re volved efforts by a man to obtain his and his argument thus guaranteed that a family's freedom well as back pay for ser not come down until after the elec vices rendered. At another the litigation tion. In the Court announced its decision became a vehicle for resolution ofan issue that Scott on March 6, 1857, two days after divided the land. At both the litigation James Buchanan's inauguration as the fifteenth failed. President. The case involved three questions Scott was born into probably that but did not necessarily all have in Virginia around 1800. He later became to addressed. was Scott's status settled the property of Dr. John Emerson, an Army by Missouri under which he had already surgeon. In 1834, Emerson took Scott from been declared to be a slave? Second, was Scott Missouri to Illinois under both the a citizen of the United for the purpose .Korthwest Ordinance and state law, slavery of a suit in federal court against was forbidden. In I Emerson and Scott a citizen of another state? Third, what was the traveled to Fort in what is now the effect of his in declared free state of Minnesota. The was in that the Missouri on his status as a part of the Louisiana Purchase under slave? If the Court decided one or the other, or ofl was both, of the first two against Scott, Emerson returned to there would be no need to answer the third. Missouri with who had now a After fe-argument, the Court seemed to family. After Dr. Emerson Scott brought have agreed to focus on the first question alone, suit against Mrs. Emerson in state court, main with Justice Nelson the task of writ taining that his residence in free territory had ing the opinion. As first cast, then, Dred Scott made him a free man. The trial court held for would have avoided the most sensitive issues. Scott, but the state supreme court reversed. 10 Several Whatever Scott's status outside Missouri, that bench held, he remained a slave under that state's law.

Under l"

in certain areas was unconstitutional the and divided the because ofthe absence oflanguage in the Con in a way unknown in Amer- stitution Congress to pro The situation called into question hibit in the territories and because the law interfered with the Con stitution through the Fifth Amend ment. Last, and almost as an of 1860 whatever the status of slaves in a free state or are on fire," 16 territory, once they returned to a slave state, commented a New York newspaper in describ their status depended on the law of that state, a heated race in Illinois for the United as the Taney Court had ruled in Strader v. Gra States Senate. in the state wanted ham l4 and as Nelson's draft initially would Abraham Lincoln to replace two-term Demo have maintained. And Missouri had decided crat Stephen Douglas. This being long before that Scott was a slave. As Simon had the Seventeenth Amendment instituted direct Taney crafted his opinion lines similar election of United States senators, the Illinois to Nelson's or had he adhered to the Court's would make that choice. Accord precedent in Strader, the Chief Justice's ingly, if voters elected more Democratic dele utation for judicial probity would have been gates to the state house in 1858, Douglas would preserved."15 "defeat" Lincoln; if Republicans obtained a It would be difficult to "'A.a.!",!",,,,, Lincoln would "win." nificance ofthe second part Although the legislature returned Douglas True, Taney's position was to the Senate for another term, the campaign tions about to be more important for a series of in the territories had been raised for several seven debates that occurred at Lincoln's in decades. \ArorPl"'p vitation across the state in the summer and fectofthe fall of 1858. It is the only time in Ameri minuscule: can that two persons have sought the the free-soil of the Missouri Com same Senate seat and then run against each promise three years earlier. Yet because other for the presidency two years later. Dred the Congress of 1854 had substituted a Scott and slavery consumed so much of the candidates' attention that one wonders what the two men would have discussed had the not choose to do otherwise. Scott v. Court not rendered its momentous de declared that convoluted ooinion ally mandated free soil was easy target for Lincoln to attack and ridicule. which a major In Lincoln's characterization of the had made free soil in the ter Taney and Douglas were synonymous. A blem As construed ish on the thinking of the Chief Justice was a the Constitution now placed that blemish on Douglas. Drawing on out of the reach. Justice Curtis's dissent, Lincoln insisted that In one the presidential elec the opinion was based on fallacious constitu tion of 1860 was a disaster. numbers of tional history in its claim that African Amer in a geographical region of the icans were purposely excluded from the refused to accept the outcome of the ileges bestowed by the Constitution. Lincoln ballot box, and secession and war followed. promised that "we shall do what we can to have In 1860. slaverv and Congress's authority over it [the Court] to over-rule this" but "we offer THE JUDICIAL BOOKSHELF 205 no resistance to it."I? Although Douglas won On May 26, Taney signed the writ, which di the Senate seat Lincoln sought, "Lincoln had rected General George Cadwalader, comman grasped an issue that resonated politically in der of the garrison at Fort McHenry to appear Illinois and throughout the northern and west before him the following day at the courtroom ern states."18 In turn, the debates helped build in Baltimore with Merryman. The general in a national reputation for Lincoln. Without the stead dispatched his aide-de-camp, who read visibility that they provided, it seems improba a statement from the general (who was him ble that he would have become the Republican self a lawyer and brother of a federal judge21 ) party's second candidate for President. apologizing for his general's absence but ex After the onset ofwar in 1861, clashes be plaining that Merryman was an enemy of the tween constitutional outlooks personified by United States and was being held under or these antagonists persisted. For Lincoln, states ders from President Lincoln. This situation led had no legal right to secede, and the new Chief Taney to issue a second order to the general Executive took bold measures to resolidify the that he appear before the court the following Union. Taney disagreed. As Simon explains, day and show cause why he should not be held not only could states legitimately leave the in contempt. Taney soon learned, however, that Union, but "a peaceful separation ofNorth and the marshal had been detained at the gate and South, with each forming an independent re had been unable to deliver Taney's message to public, was preferable to civil war." Lincoln Cadwalader. Anticipating defiance, Taney was then construed his powers as Commander-in equipped with a prepared statement declaring Chief to prosecute the war that had ensued, that the President "cannot suspend the privi while Taney "vociferously" accused the Presi lege ofthe writ ofhabeas corpus, nor authorize dent "of assuming dictatorial powers in viola any military officer to do SO."22 Taney then in tion of the Constitution."19 structed the general to hand over Merryman to One of the most vivid examples of this civil authorities, as he began work on a longer tension surfaced in the spring of 1861. From opinion directed to the President. This doc Lincoln's perspective, Maryland's status as a ument insisted that the writ of habeas corpus continuing member ofthe Union remained un could be suspended only by an act ofCongress, acceptably volatile. Its legislature contained not by executive authority.23 enough Southern sympathizers to make se In Simon's appraisal, "The certitude with cession a distinct possibility. Furthermore, which Taney marched toward his conclu hostile elements in the state sabotaged rail sion ... was reminiscent of some of his best way and telegraph lines, impeding the move opinions ... and his worst." The Merryman ment of reinforcements from northern points opinion was "a clarion call for the President, to Washington to secure the capital militar and the military forces under his command, ily. To meet the threat, the President sus to respect the civil liberties of American cit pended the writ of habeas corpus in the area izens," and it "proved that the Chief Justice, between Philadelphia and Washington, thus well into his ninth decade of life, was still ca empowering military commanders to arrest pable of writing a formidable piece of judi "suspected secessionists and imprison them cial advocacy."24 Still, the opinion embodied indefinitely.,,2o One such person taken into a surreal quality, for it was devoid of context custody was a landowner from Cockneysville, indicating that the President had a major in Maryland, named John Merryman who was surrection on his hands. Indeed it was Taney's imprisoned at Fort McHenry on May 25. On Merryman opinion that led Lincoln to reshape that same day, Merryman's attorneys deliv the controversy by posing a starkly simple ered a petition for a writ of habeas corpus to question in his message of July 4 to a spe Chief Justice Taney, sitting as circuit judge. cial session of Congress: "[A]re all the laws, 206 JOURNAL OF SUPREME COU H

nexecuted, and the government the Third Branch and American constitutional lest that one be violated?"z5 law in terms of the name of he was released in July 1861 the Chief Justice in office at the time, the se on ries includes books on the Court before the case never went to trial. Simon explains MarshalJ,29 the Marshall 30 the Fuller that postponed the proceed- Court? the White because of ill health but refused to allow years,33 the Warren 34 and the Burger another to sit in his place. The irony: Court.35 Well-researched. comorehensive. and is too to miss. "Taney had demanded engagingly throughout the habeas corpus proceedings that up to its series pre the Lincoln administration justify Merryman's decessors. The author seems as comfortable incarceration before a in a civil court with the literature ofpolitical science and con room. But once the administration had belat stitutional as with law. edly with judicial directive, The eleven years ofthe the Chief Justice denied the the to prove its case. tuous as any in American the Simon's able narrative nvetmg po of the nation's severest domestic cri litical and drama. The book is a solid sis since the Civil the Court reminder that actions in the courtroom some during] 934--1936 invalidated times influence a nation's as much of President Franklin Roosevelt's New Deal as do maneuvers on the battlefield. If the legislative program. This state of affairs pro reader is left ....""r!p,'lt'\ whether politics typi voked a counterattack from the White House cally trumps constitutional theory, the volume that dwarfed all previous attempts by any Pres leaves little doubt that-in the wake of the ident or Congress at outcome ofthe Civil War and ratification ofthe curbing. The Justices shortly a sub Thirteenth, and Fifteenth amend stantial body of jurisprudence that for ments that collectively ensconced the values half a century had characterized its labors to of Lincoln, not have consti varying degrees in defense of property tutional consequences. As if that shock to legal sensibilities were in Under far different circumstances and sufficient, the Court, for the first time and on with different values at the conflict be an unprecedented soon embraced seri tween President Franklin Roosevelt and the ous protection ofnoneconomic Supreme Court some seven decades afterward and liberties. Moreover, Roosevelt certainly rivaled in constitutional abundance of Court vacancies after I ':/Jb, so the sparring between Lincoln and that, by the time Hughes retired in the sum later clash is a central focus ofThe ChiefJus mer of 1941 at age the President had been ticeship ofCharles Evans HU!!hes by William able to reconstruct the Bench. It was as the Ross of Samford Court had both generated and witnessed more School of Law28 His book is the latest en- than it could consume. The period is in a valuable series on therefore clearly worth the time of both author tory, "The Chief and reader. Court," under the ofHerbert No Chief Justice has assumed office with A. Johnson ofthe University of South Carolina greater breadth and depth ofexperience in pub School of Law. Inspired the con lic life than did Hughes. Indeed, unlike any vention that emerged in the first third of the Chief other than Edward twentieth century, as it became White, Hughes began his tenure on the Court to think and write about the development of with the special advantage of having sat as an E JUDICIAL BOOKSHElf 207

The conflict between President franklin Roosevelt and the Supreme Court is a central focus of The Chief Justiceship of Charles Evans Hughes by William Ross of Samford University's Cumberland School of law. Ross's book is the latest entry in a valuable series on Supreme Court history; "The Chief Justiceships of the Supreme Court," under the general editorship of Herbert A. Johnson of the University of South Carolina School of law. Above, Hughes relaxes with his wife, Mary.

Associate Justice (1910-191 36 He had also tenure on the ,,37 been Governor of New York in 1916, the with sometimes a fifth vote nominee for President. As Secre to spare a statute from annihilation. tary of State in the Harding administration, he tiously, the Bench seemed less deferential than received credit for a naval disarmament treaty among the great powers. An acclaimed leader ofthe American bar, he was sitting as ajudge of sential fifth the World Court when President Hoover picked however, this glimmer of in the him to succeed William Howard Taft in 1930, short run at least, to be the dusk before the a nomination that symbolically ran into un dark, once the Court

stiff opposition from progressives. nificant batch of New Deal l'-'!',l''''HIV Confirmation by a vote of 52 to 26, with eigh 1935 and 1936. teen senators not voting, was evocative of two than the other contentious but ultimately suc President's in cessful nominations for Chief Justice: Roger twelve decisions over the years 1934~ I the B. in 1836 and Melville W. Fu lIer's in Supreme Court declared unconstitutional all or 1888. part of eleven New Deal measures, a statistic Concerns that Hughes would that was exceptional both and sub lead a Court too solicitous of corporate inter stantively in its pace and extent.41 "Never be ests were soon confounded by a record that, for fore had the Court so frustrated an ad ministration's so short than at any time since a period."42 As Justice Harlan Stone wrote to 208 JOURNAL OF SUPREME COURT HISTORY his sister at the end of the Court's Term in and Roberts, both "Yankee Protestant Repub June 1936, "[W]e seem to have tied Uncle licans who were devoted to an ideal of disin Sam up in a hard knot."43 State regulatory laws terested government," may have shared "a fun foundered on the shoals of unconstitutionality damental distrust" of the New Deal "because as well. 44 its power emanated from a coalition of cor Ross ofTers several explanations for rupt urban political machines and feudal white this astonishing resistance to the President's southerners."49 The reservations of Hughes agenda. First, and most obvious, was the com- , and Roberts-and it would be their objections, position of the Court itself, which provided after all, that were dispositive-may have thus an unreceptive environment at best. Any liti been as much cultural as jurisprudential. gant challenging a New Deal measure seemed However one assesses the causes for the nearly assured of four votes, from Justices anti-Roosevelt environment that prevailed at Pierce Butler, James McReynolds, George the Court, there remains in doubt what Ross Sutherland and Willis Van Devanter. By con terms the "enduring dilemma"so ofthe Hughes trast, the President could ordinarily count on no Court and the puzzle Ross's book attempts to more than three Justices: Louis Brandeis, Ben unravel: the timing, causes, and extent of the jamin Cardozo, and Stone. This left the validity transformation that took place. For those the ofthe New Deal, as well as state legislation in author labels "internalists," the Court's "con spired by the New Deal, in the hands of two sistent approval ofeconomic legislation begin Justices, Hughes and Owen Roberts. Second, ning in 1937 was not revolutionary but rather with programs that were as novel as the eco the natural result of an evolutionary process nomic emergency to which they were directed, by which the Court gradually had accepted the the New Deal imperiled itself. Even though regulatory state."SI In other words, for the in adequate constitutional precedent existed to ternalists, what, in retrospect, appears as a rev undergird Roosevelt's policies, those theories, olution was merely change that was already which the trio of Justices more friendly to the underway to some degree before 1937. By con New Deal could capably articulate, had never trast, so-called "externalists ... draw upon a been applied by the Court to policies funda tradition of legal realism and behaviorialism mentally designed to remake the national econ in contending that the Court's 1937 decisions omy. Third, the variety ofNew Deal responses constituted a distinct departure"s2 from the seemed to disrupt "the delicate balances of Bench's earlier posture, a reversal brought federalism and separation of powers.,,4S These about by the 1936 elections and particularly were concerns shared even by the Court's lib the Court-packing proposaLS3 From the ex eral bloc, as illustrated by the votes in Schecter ternalist perspective, these events persuaded Poultry Corp. v. United States46 and Louisville Hughes and Roberts "to accept more deferen Bank v. Radford,47 and the single dissent by tial attitudes toward such laws."54 Thus, exter Cardozo in Panama Refining Co. v. Ryan.48 Ju nalists emphasize the importance of circum dicial resistance may also have been facilitated stances and events apart from constitutional by public opinion, which remained dubious precedent and judicial values. Ross also notes about the new regulatory era even while return the existence ofa middle position, which he as ing Roosevelt to the White House in a land sociates with Bruce Ackerman, that is a syn slide and handing Democrats congressional thesis of the two. According to this explana margins in the 1936 elections that, thus far, tion, the Depression and the expansion of the remain unsurpassed. Fourth, support of New regulatory state "generated a transfonnation of Deal initiatives was made more ditTicult at popular attitudes toward the nature and pur the margin by sloppy legislative drafting and pose of government that found expression in less-than-stellar legal defense. Finally, Hughes a judicial revolution."ss The author espouses THE JUDICIAL BOOKSHELF 209 none of these viewpoints exclusively. Instead, lic support mattered most, in averting long recognizing that labels can obscure as well as term hostility toward the institution. Other clarify, he draws from one or another at various wise, Hughes's legacy might have been a vastly points in the story in order to enrich under weakened and ineffectual Court, with pro standing of the "forces that transformed the found consequences for later generations. In Court during Hughes's Chief Justiceship."56 his lectures on the Court at Columbia Univer For instance, Ross believes that a combination sity in 1927, to which Ross refers in places, of the 1936 elections, FOR's attack, the so Hughes contributed a term of art to judicial cial tragedy of the Depression, and the trans scholarship when he spoke of the Supreme formation of public attitudes toward govern Court's "self-inflicted wounds,"65 mentioning ment itself seem highly persuasive at least in Dred Scott, the Legal Tender Cases,66 and accounting for Roberts's switch to a position Pollock v. Farmers' Loan & Trust CO. 67 by favorable to the New Dea!.s7 Ultimately, how name. Making its own unintended additions ever, what mattered most in changing the Court to that list, and with brinksmanship jarringly was not that Hughes and/or Roberts became akin to some behavior of the Taney Court, "wholehearted converts to a theory ofjudicial Hughes's Chief Justiceship, in its encounter restraint in economic cases, but rather [that] with Franklin Roosevelt, stands as a sobering the numerous Justices appointed by Roosevelt reminder that even the combination of an im formed a permanent liberal majority."58 It was posing professional pedigree and remarkable this new majority that cemented judicial re insight do not necessarily yield altogether en straint onto economic regulations and shifted viable results. to a new nonproprietarian, rights-oriented ac Within a generation, the new course that tivism, as presaged by Stone's Footnote Four in the later Hughes Court charted toward nonpro United States v. Carolene Products Co. 59 This prietarian, rights-oriented activism again en new majority also closed the door on adop tangled the Justices in political controversy. tion ofa regulatory fallback position by which By this time, the Chief Justice was Earl War most, but not all, economic regulations would ren, and among the Court's harshest critics was be allowed to stand. fellow Californian and former Vice President Aside from confronting what happened Richard Nixon, who orchestrated his campaign on Hughes's watch and why, Ross also as for the White House in 1968 in part around an sesses Hughes as Chief Justice. Acknowledg attack on some of the principal handiwork of ing the well-documented success of the "Jo the Warren Court. vian presence,,60 as court administrator, the The Iiterat1lfe on the fourteenth ChiefJus author also acknowledges the views of critics tice has now been enriched by publication of that Hughes "might have done more"61 to avert Justice for All by Jim Newton, editorial-page the crisis of 1937, particularly with respect editor of the Los Angeles Times. 68 Engagingly to Roberts, whose position in Tipaldo 62 Ross written and carefully researched, Newton's bi finds inadequately explained by Felix Frank ography of Warren presents a detailed and furter's latter-day apparent attempt63 to enable 'sympathetic yet perceptive treatment of War Roberts posthumously to exculpate himself ren the man, as a product of the progressive from accusations that he had flip-flopped.64 wing of California Republican politics, and a Ironically, despite the political experience portrayal of Warren the ChiefJustice with par and presumed acumen that Hughes brought ticular emphasis on the dynamics and work to the Bench, his Court needlessly moved to of the Court he led. For someone approach the constitutional precipice. Yet Ross believes ing Warren's life for the first time, Newton's that Hughes deserves credit for preserving the book is an essential source, just as the book Court's power and prestige and, when pub is well worth the time of anyone who wants 210 JOURNAL OF SUPREME COURT HISTORY to rev isit the Court of the 1950s and 19608. self with Warren, he played both sides."69 Af a word of caution is in ter Warren took the constitutional and judicial order. For those of late middle age and be oaths on October 5, 195370 yond who first began to pay close attention during his to the Court years of public service what "his" Court would do that someone age encountering War the next sixteen. Warren led his Court in a ren today for the first time will view him very. way the nation had not seen since the much as a from But he is now of John Marshall. At his the des a historical figure. He was born in 1891, only ignation Warren Court had become so embed twenty-six years after the Confederate surren ded in American political discourse that New der at Appomattox Courthouse. He was the last ton believes part of Warren'5 legacy resides in Chief Justice born in the nineteenth become the "punching in the na Melville Weston Fuller was the Chief Justice tion's fratricidal Court confirmation during Warren's boyhood years in Bakersfield. battles where he has come to reck Appointed Chief Justice by President Dwight less liberal judicial activism ... When Eisenhower in 1953, Warren was only the sec licans fret about the possibility of conserva ond Chief to be appointed from a state west tive Justices abandoning the faith on the Bench of the During his first Term on and offinto terrain, it is the his Court's decisions appeared in Warren who strikes that fear. ,,7) there volume 346 of the Uniled Stales His is no period of similar length which Court's last opinions were published in 1969, the Justices themselves on so many in volume 395. His death in 1974 fronts in so many causes involving civil liber President Nixon's resignation from office by ties and civil Neither is there another about a month. Between 1953 and 1974, thir time in the history of any other nation when teen new faces, his own, appeared on a court became the prime mover behind such the Bench, a number now equal to 12 percent extensive social change. In the words of Jus of the total number of Justices to serve since tice Abe 1790. Warren's Court has been part of history for forty years. "Com Like Charles Evans Warren came ing to to the Court as a very public man. He moved facts of from deputy city attorney of Oakland and dis observed, "the Warren Court translated our trict attorney of Alameda County to Attor long-time conunitment to racial equality into ney General and Governor of California. He a certain measure of social and constitutional was Governor Thomas E. The reapportionment decisions mate in the presidential us closer to the ideal professed in 1776 [that] and he the Republican presi just o()vprnm rest on the consent ofthe gov dential nomination in 1952. it was in erned. New rules of criminal procedure were the events surrounding the Republican Con formulated, a ring of truth to vention of 1952 that Newton depicts Nixon as under the Law:m The Warren Court's effects into the than those ofmost Pres- convention with to him to be an second choice If the decisions during Warren '8 tenure to Eisenhower delegates should neither Eisen as Chief Justice constituted a judicial revo hower nor Robert Taft command a majority part of the of this revo vote. "But even as Nixon publiclv allied him lution has come from the catalytic effect the THE JUDICIAL BOOKSH 211

Jim Newton's new bi ography of Earl War ren, Justice for All: Earl Warren and the Nation He Made, is essential reading for any student of the Supreme Court's shift in direction during the 19505 and 19605.

on both the judiciary correction ofall or injustice, no mat ter what its nature or source."75 There seem acknowledging the judicial ac issues associated with ofthe Warren years, appraisals have been the Warren Court that did not succumb to this mixed. In I President Eisenhower assured h"",,,,,,,,,,,,,,n In the nation that his choice to Fred Vinson would prove to be a great Chief Jus Ike's however, soon soured to in unusual he Warren's selection "the damn self, the for judicial review became fool mistake I ever made in my life."76 surprisingly hard to calculate."74 The domi contrast, President Lyndon Johnson consid nant mood to those whom Warren's ered Warren "the greatest Chief Justice ofthem Justice John Marshall Harlan all. among the most described as "observers ofthe Court lades Warren ever received was the who see it a<; the last for the message from President John 212 JOURNAL E COU H

Chief Justice in March 1963: "Although [it the Court devoted more and more time to crim is] not for all of us to be your inal procedure cases, both state and national, clerks, in a very real sense we are all your in the 19605. This was in sharp contrast to the students. for Alexander who 1940s and 19505. when the Court's docket usu had once clerked for Justice War more than a of ren's Court "came under criminal cases from state courts. Unless for erratic subjectivity of for ana engaged in lytical for what amounts to intellec and local enjoyed wide discre tual incoherence in many opinions, and for tion in the Court's eye in their choice of law too much history.,,79 For others, enforcement practices. This tradition of def the Warren Court brought as well as erence, was shortly shoved aside. In agony. applauded the outcomes of de its place came the "due process ,,84 cisions but sometimes which by 1968 was well under way, initiated with the means which they were reached. and sustained by the Warren Court. For Newton. "Earl Warren left a great and vo Never before had an American court that modern America has not such and extensive change to how to absorb. ,,80 stages of criminal Warren's work "courses through modern legal This revolution had at least three elements. debate in topic after topic, nowhere more so The first was the near-complete incorpora than in the nation's unwinnable be tion of the Bill of Rights into the Fourteenth tween the forces of and those of lib Amendment. the end of the Warren Court ... In the decades since Warren left the in 1969, there had ceased to be any America has never suffered from too difference under the U.S. Constitution between many men or women like him. in federal courts and The judicial territory that was traversed between 1953 and 1969 is perhaps best illus under which criminal trated by two examples. The first is that War standards had been higher for federal than for ren's retirement and the selection of a succes state law enforcement, had vanished. Criminal sor attracted considerably more attention in the cases from state courts now crowded the High press and Congress than had been the case Court's docket. Second, decisions reflected a when Chief Justice Vinson died and Eisen deep appreciation of the liberties enshrined in hower looked for a successor. The the Bill Judicial bombshells demol Court simply counted for more in the political ished or recast many ofthe old ways in I 969-the stakes were higher. The cnme. and as a result of the first two, second lies in the race of 1968, this restructuring made the Court for the first in which the Court became a major campaign time the constitutional overseer of almost ev issue in national politics to a not wit ery of local law enforcement in each of nessed since 1936. the states. While decisions in several areas ensnared Illustrative of what was Mapp the Court in electoral controversy, those on v. which came down at the midpoint criminal justice were as much the of the Warren years after senior cause as any. In the words of candidate Nixon, Associate Justice Black administered "Some of our courts have gone too far in the oath of office to the new Chief Justice. 86 weakening the peace forces as the crim The now seems nearly in that inal forces."82 He even accused the Supreme the second half of Warren's Chief Justiceship Court of giving the to "the crim to be even more than the inal element" in the nation.83 The fact was that first. The case provides the title of a recent THE JUDICIAL BOOKSH 213

book by political scientist N. deed. search warrants in had of Washington State University at Vancou practically fallen into disuse, Police and prose ver. Her l\1app v. Ohio87 an expanding cutors alike realized that the absence ofa war body of valuable case studies in the Univer- Press of Kansas's Landmark Law Cases and American under the gen eral editorship of Peter Charles Hoffer and N. tionally, Mapp became the E. H. Hull. Professor of the for two prin comer to the ca;Se-SlUiQV most encounters between citizens and those encounters ploymenl Division v. free ex occur in automobiles or sidewalks-are ercise of religion89 with state or local not with officers of don to the series is as federal law-enforcement Second, in is insightful, adhering to the standards ex later cases, the Court would lay down even hibited by its predecessor entries in the Land more rules correct police procedure. mark series. In narrative and That if a violation of the Fourth Amend analysis have been enriched careful use of ment exclusion of evidence, not only conversations with would future of necessity present in the case.90 opportunities to Justice Tom Clark that out with precisely what the was Fourth Amendment allowed and what it pro but the Justices themselves would feel guidance to Justices to cover the numerous situations that would in significant re strictions on searches and arrests by applying even Miranda v. Ari the exclusionary rule to the states by way of zona,94 which five years later firmly entangled the Fourteenth Amendment. The majority rea the Court with police interrogations-Mapp soned that unless Iy seized evidence was put the Court in charge of day-to-day barred from the Fourth Amendment's di police work. How the decision came about, and rective that "the be free from "unrea how it was ultimately implemented, is the sonable searches and seizures" would mean lit tells so well. tle. Herein the reason helped to make as decided by the Supreme Comt the Warren Court an issue in the 1968 was very different from the case that arrived dential election. While might deter po at the Court. Ms. fol lice critics charged that its social lowed what shows to be a warrantless an individual would not search of her home and some from its operation unless in- behavior by in Cleveland, Ohio who evidence was found. The decision . were in search of a fugitive and evidence re the essence of Judge (later lated to a bombing.95 Her conviction, how Cardozo's aphorism that the ever, stemmed from possession of material "criminal is to go free because the constable deemed to be obscene.96 Thus, as it reached has blundered."9! the Court and as it was briefed and While the exclusionary rule had been a Mapp was a straightforward First (not fixture in federal courtrooms since 1914,92 in Amendment case the ques 1961 half the states still allowed the in tion of whether states could criminalize the troduction of acquired evidence. In mere ofobscenity. This was not the 214 JOURNAL OF SUPREME COURT HISTORY

the Court chose to answer in What happened next is a matter of Indeed the Court would not answer that ques some speculation, but it appears that soon after tion until 1968.97 Instead, the case underwent a the conference on March 31, a few members constitutional metamorphosis inside the Mar of what would become the new Mapp major- ble Palace. According to the papers of Justice huddled in a "rump caucus,,,I02 possibly in Clark and Chief Justice Warren, the Justices an elevator, to devise a new basis for the de considered Alapp at their Saturday conference cision. Clark, to whom Warren had assigned on March 31, 1961, one day after oral argu- , the opinion, found Warren and Brennan re ments in the case. Most seemed to find the ceptive to a Fourth Amendment basis for it. Ohio statute defective because of its over Knowing from conference that Douglas was breadth. William O. Douglas, raised already agreeable, he would then have a ma the Fourth Amendment issue and whether the ifhe could count on Justice Black's Court should revisit v. That was problem which a majority ofsix had declined to atic for two reasons: Past decisions indicated the rule on the states. That idea that Black was not inclined toward an expan had entered the deliberations thanks to the ami sive reading ofthe Fourth and his cus brief filed by the American Civil Liberties concurring opinion in Wolf had declared that a single section of which, the exclusionary rule was a judicially crafted as an afterthought, invited the Bench to reex rule of evidence, rather than a command ofthe amine Wolf. The brief was also ap Constitution. "What occurred over the next two As one ofChief months," writes "was a flurry of opin Justice Warren's clerks wrote in a Bench mem ions between Clark and Black as the Texan 'The briefs ofthe in this case worked to attract Black to his position."lo3 Yet are among the worst I have seen all year. even Clark had serious reserva the amicus brief of the Ameri tions about the exclusion can Civil Liberties Union and Justice ary rule on the states. In a handwritten draft of opinion in the court below tend his opinion, Clark wrote, "We have concluded to the major issues into focus."99 War that the conviction of the appellant is viola ren and Justice William 1. Brennan also found tive ofthe due process clause ofthe Fourteenth Douglas's suggestion but with no Amendment ... which results in a reversal of other takers. "the idea stalled."loo The con the judgment." Written in the margin at this ference then coalesced around point was this note: "On the 4th Amendment the position that Ohio's statute fell short on question the Court adheres to it rule announced First Amendment and Fourteenth Amendment in Wolf v. Colorado."104 This draft included grounds alone. As Justice John Harlan wrote no mention of the First Amendment issue that Clark a few weeks would have sup had dominated discussion at conference. The posed that the Court would have little diffi strong ggestion is that at this point in the evo culty in agreeing indeed 1 whole lution of Clark's about the nn"fl"rrf'rl Court had) that a state against mere course ot action, he intended to keep the deci knowing possession of obscene material with sion focused on the validity of the search. The out any requirement of that such pos reference in the draft to the Due Process Clause session was with a purpose to disseminate the leads to that perhaps Clark offensive matter, contravenes the Fourteenth was toward a more modest resolution Amendment, in that such a statute impermis of the case, concluding that police behavior deters freedom of belief and expression, the search was so outlandish that it vi if indeed it is not tantamount to an effort at olated Justice Felix Frankfurter's "shocks the thought control."IOI conscience" test from Rochin v. 105 THE JUDICIAL BOOKSHELF 215

"Whatever the reason," she "the only dence seized illegally could be excluded from thing clear from this initial draft is that Clark all state criminal state criminal proce had chosen not to write an opinion in line with dure threatens to become as fragmented as it the unanimous agreement of the Court."I06 was prior to Mapp." I J J Nonetheless, Clark had been on record as early Nonetheless, perhaps partly because of as his concurring in irvine v. Califor this generates far that, had he been on the Court when Waif less controversy today than in the years imme was decided, he would have voted to apply the diately after 1961. The scope ofrights ofthe ac exclusionary rules to the states. In the same cused in case, Long notes, Clark had written a draft opinion, which he circulated only to Jus tice Robert Jackson, that called for the direct ident Ronald "", ..",,,,acH reversal of Waif. From the outcome of Mapp, O'Connor as the first woman to sit on the it is apparent that Clark had abandoned Supreme Court of the United States. That no that objective, as later drafts gravitated more table event occurred 102 ycars after Belva closely toward the form of the opinion that Lockwood became the first woman admitted the Court released. As Justice Potter Stewart to practice in the High Court. Candidate for orO'Do:seQ opinion [comes] president of the Rights party in the elec as quite a for imposi tions of 1884 and 1888, Lockwood is now the tion of the rule was possible be ofa biography by Jill Nor- cause Clark secured Black's vote. At the top ofGovernment at John of Clark's draft was this note: "TCC and the Graduate Center ofthe draft after OK from 4/27/61.,,109 And of New York. Belva Lockwood should interest not students of the Court ently solidified the between the Fourth and Fifth amendments, a point that Black had and the very and culture point that he then developed in his concur D.C. in the late nineteenth century. It was Lock ring OpInIOn why his position in wood who noted in an autobiographical article Mapp departed from his position in Woif. Jus that "while she had failed to raise the dead, she tice Stewart issued a memorandum expressing had 'awakened the living. ",113 no one no position on the rule, but con who pens such words can fairly be said to have curred in the reversal ofMapp's conviction, for led an uninteresting life, and Lockwood's life the reasons that had seemed was anything but uninteresting. tive at conference. searched and Of course de bate over the rule. As the truth of a variation on ancient wis shows, the Court has made some dom: Truth frequently is more than 1[0 while some state supreme' fiction. Norgren successfully and il courts, in an of what is sometimes luminates the life ofthis individ called the "new judicial federalism," have ap ual even though most of Lockwood's personal plied state constitutions in a way to offer papers were destroyed after her death. within their particular states more A native of Niagara in western restrictions on searches than those main .'Jew York, Lockwood Belva Ann Ben- tained the U.S. Supreme Court. she completed the coursework at the National notes that more than four decades after Law School in but was "federalized the rule so that evi refused a diploma because she was a woman 216 JOURNAL OF SUPREME COURT HISTORY

Jill Norgren's biogra phy of Belva Lockwood (left), the first woman to become a member of the Supreme Court bar, is both well researched and a compelling read. Lockwood is pictured here in 1913 with a friend, Olympia Brown.

and then denied admission to the bar of the Lockwood took the next Rules of District of Columbia. Only after she penned the U.S. Court permitted an attorney a 14 to President Ulysses Grant that was to apply for admission to its bar after as insistent as it was intemperate did she re ing for three years before the state or ceive the diploma she had earned and District of Columbia court, a requirement she in 1873, admission to the bar. With other hur in 1876 Albert Gal dles remaining to be jumped, Lockwood would . moved her admission to the Supreme Court bar, In Chief Justice Morrison Waite an When her application to practice before nounced the Court's denial of the not- the Court of Claims was rebuffed, that "the Court does not feel called upon Charles Nott that "it was not the to make a change until such is required business of the judiciary to 'intermeddle' with statute,,,117 Lockwood, who was a superb the 0 f woman '8 proper "I 15 had ex As Lockwood had feared, the action by the tensive press coverage of the pending motion, Claims Court reflected the sentiment of Jus so that one newspaper story proclaimed that tice Joseph Bradlev's ooinion for the "the Chief Justice the fair appli cant." As the scene, "At the Bradwell's exclusion, as a married woman, White House that night, the First who from the Illinois bar: "Man or should be, had read the newspaper accounts, asked Waite, woman's and defender. The natural her dinner guest, 'how do you look when you and proper and delicacy which be squelch people?' Malvina Harlan, also a guest longs to the female sex evidently unfits it for at the party, reported that Waite had replied many ofthe occupations ofcivil life."1 16 Unde- with a pained look of embarrassment and a THE JUDICIAL BOOKSHELF 217 shrug of his shoulders, 'Why, I do not know, THE BOOKS SURVEYED IN THIS I'm sure. mllS What Waite did not reveal was ARTICLE ARE LISTED that he, along with Justices Samuel Miller and ALPHABETICALLY BY AUTHOR BELOW David Davis, had voted to approve her motion, LONG, CAROLYN N. Mapp v. Ohio: Guard but that the three had been outvoted. ing Against Unreasonable Searches and Inspired by Bradwell's successful efforts Seizures (Lawrence: University Press of to achieve passage in Illinois of a statute bar Kansas, 2006). Pp. xxii, 228. ISBN: 0-7006 ring gender discrimination in access to the 1441-9. Paper. professions, Lockwood accepted the challenge NEWTON, JIM. Justice for All: Earl War implicit in Waite's comment about a statute. ren and the Nation He Made (New York: What followed was an extensive lobbying ef Riverhead Books (2006). Pp. viii, 311. ISBN: fort by Lockwood and others-efforts inter 1-59448-928-9. Cloth. rupted only briefly by a series offamily crises, NORGREN, JILL. Belva Lockwood: The including the death of her husband-to per Woman Who Would Be President (New suade Congress, over significant separation York: New York University Press, 2007). Pp. of-powers objections, to enact legislation that xi, 309. ISBN: 978-0-8147-2. Cloth. would prohibit discrimination against women Ross, WILLIAM G. The Chief Justiceship attorneys in practice before the federal courts. of Charles Evans Hughes (Columbia: Uni Passage ofthe bill came in February 1879, and versity ofSouth Carolina Press, 2007). Pp. xiii, President Rutherford Hayes signed it into law. 275. ISBN: 978-1-57003-679-8. Cloth. Lockwood "had pushed a reluctant Congress SIMON, JAMES F. Lincoln and Chief Jus to enact one of the very first measures in sup tice Taney: Slavery, Secession, and the Pres port of women's rights."i [9 Formal admission ident's War Powers (New York: Simon & to the Supreme Court bar followed when the Schuster, 2006). Pp. 324. ISBN: 978-07432 Justices next convened on March 3. 5032-0. Cloth. Norgren's account of Lockwood's career, however, does not end with this personal tri umph. The volume also contains rich detail on ENDNOTES a Supreme Court case Lockwood argued on IAlpheus Thomas Mason, Brandeis: A Free Man's behalf of Cherokee Indians who were seeking Life (1946); Harlan Fiske Stone: Pillar of the monetary damages because of their forced re Law (1956); William Howard Taft: Chief Justice moval. The Court ultimately approved a set (1964). tlement worth some five million dollars.12o 2James F Simon, Lincoln and ChiefJustice Taney (2006) (hereafter cited as Simon). The case was perhaps the climax of a forty 3James F. Simon, What Kind of Nation: Thomas Jeffer year legal career that ended only with Lock son, John Marshall, and the Epic Struggle to Create a wood's death at age 86, three years shy of rat United Stales (2002); The Antagonists: Hugo Black, Fe- ification of the Nineteenth Amendment. Her Iix Frankfurter, and Civil Liberties in Modern America legacy, Justice Ruth Bader Ginsburg observes (1989); The Center Holds: The Power Struggle Inside " the Rehnquist Court (1995). in the foreword to Norgren's book, "is the 417 U.S. (4 Wheaton) 316 (1819). path she opened for women who later fol 562 U.S. (21 Howard) 506 (1859). lowed the tracks she made."12I As Norgren 662 US. at 520-21. demonstrates, Lockwood's life reflected per 7James D. Richardson, ed., A Compilation of the Mes severance, resilience, wit, and good humor. It sages and Papers of the Presidents (1908), vol. 2, 581 offered lessons on how, amid the tensions and 82. 860 U.S. (19 Boward) 393 (1857). resistance generated by great antagonists, an 9James D. Richardson, ed., A Compilation of the Mes individual can transform obstacles, putdowns, sages and Papers of the Presidents (1908), vol. 6, 9. and slights into opportunities. IOScoll v. Emerson, 15 Mo. 476 (1852). 218 JOURNAL OF SUPREME COURT HISTORY

IIJn Howard's Sanford's name ineonectly Merryman episode occupies a place in spelled "Sandford." All the Laws But One by the late William 1251 U.S. (to Howard) 82 (1851). Strader posed the ques Rehnquist (1998), 32-39. tion ofwhether slaves became free when they entered free 28William G. Ross, The Chief Justiceship of Charles states or territories. Lurking within the case was the per Evans Hughes (2007) (hereafter cited as Ross), dous issue Congress was then confronting: its power over 29William R, Casto, The Supreme Court in the Early slavery in the territOries. The owner of a band of slave Republic (1995). musicians had brought a suit for damages against several 30Herbert k Johnson, The Chief Justiceship of John men who were accu;;cd of helping the slaves flee from Marshall, 1801-1835 (1997). Kentucky to Canada. The defendants' defense was that JIJames W. Ely, Jr., The ChiefJusticeship of Melville W, the musicians not slaves al the time of their flight Fuller, 1888-1910 (1995). because an earlier mu,ical tour into Ohio had made them 32Walter F. Pratt, Jr., The Supreme Court Under Edward The Kentucky courts had ruled III favor of Douglass White, 1910-1921 (1999), that whatever the musicians' status In 33Melvin L Urofsky, Division and Discord: The Supreme slaves under Kentucky law Court Under Stone and Vinson, 1941-1953 (1997). lumed home. The U.S. Supreme Court dismissed the ap 34Michal Belknap, The Supreme Court Under Earl peal: the Northwest Ordinance of 1787, under which the Warren, 1953-1969 (2005). Ohio territory had been declared free soil and upon which 35Earl M. Maltz, The Chief Justiceship of Warren the accused abettors burlt their John Rutledge rode opinion for the unanimous B'::nch, however, said more the southern circuit with Justice James Iredell, but resigned much more-than was necessary, considering that he de before the Supreme Court convcnedo Named ChiefJustice clared that his Court had no authority to decide the case, on a recess appointment after John Jay resigned, Rutledge Agreeing with the Kentucky courts, presided over the August Term ofthe Supreme Court Court's imprimatur on the doctrine Upon re before he was rejected by the Senateo turn to the home slale, the 37Ross, 290 The 38Hughes voted wllh the majority in Home Building & law of that state. Sirader Loal1 Blaisdell, 290 US. (1934), and Nebbia New York, 291 US. 502 (1934). on this subject, even when the former had Jurisdiction. 39SIromberg p. US. 359 (1931). 13Benjamin R. Curtis, ed., The Life and Writings of Ben 40Near v. Mil1llesola, 283 US. 697 (1931)0 .jamin Robbins Curtis, LL.D, (1879), vol. 1,2360 4lEconomy Act of 1933 in Lynch v. Uniled Siales, 292 14See endnote 12. US. 571 (1934); Agricultural Adjustment Act of 1933 in loSimon, 125. Uniled Siaies v. BUller, 297 US, I (1936); Joint Resolu

16Harold Holzer, ed" The Lincoln-Douglas Debates lion of June 5, 1933, in Perry Vo United Stales, 294 US, (New York: HarperCollins, 1993), !. The quotation is from 330 (l935); National Industrial Recovery Act of 1933 in the editor's introductory Schechter Poultry Corp, v, Uniled SlaleS, 295 US 495

17Simoll, 137 (emphasis in the (1935) and Panama Refining CO. P. Ryan, 293 US. 388 ISId., 139. (1935): Independent Offices Appropriation Act of 1933 in 191((,3. Boolh Vo UI7i1edStates, 291 U.S, 339(1934); 1933 Amend 20Id, 186. ments to Home Owners' ·Loan Act in Hopkins Federal ofJames Buchanan, was Savings & Assn, Cleary, 296 US. 315 (1935); Court for the Eastern Amendments to Bankruptcy Act of 1898 in Ashton District of Pennsylvania \'. Cameron County Water Improvement Dist., 298 U.S, 22Simon, 189. 513 (1936); Railroad Retirement Act of 1934 in Railroad 23See Ex parle Mel'lyman, 17 Cas, 144 (CCD. i\·1d. Retirement Board v. Allon R. Co.. 295 US. 330 (1935); 1861). Frazier-Lemke Act of 1934 in Louisville Joint Siock Land 24Si01on, 193, 192. Bank v. Radford, 295 US. 555 (1935); AAA Amendments 25Jarnes 0, Richardson, ed" A Compilation of the Mes of 1935 in RickeI'I Rice Mills v. FOIl/ellol, 297 U.S. J 10 sages and Papers ofthe Presidents (I 908), vol. 6, 24-25. (J 936); Bituminous Coal Conservation Act in CarieI' v. 26Simon, 198. It may be that Taney was convinced that the CarieI' Coal Co" 298 US, 238 (1936), formidable federal military presence in Baltimore by this 42Ross, 58. time would have trial impossible. 43Masol1, Harlan Fiske Stone, 426. THE JUDICIAL BOOKSHELF 219

44Morehead v. New York ex reI. Tipaldo, 298 U.S. 587 are achieved we should add them permanently to our store (1936). houses of treasures." The passage is drawn from Warren's 45 Ross, 244. A Republic, If You Can Keep It (1972), 6, quoted in 46295 U.S. 495 (1935). Newton, 516-17. 47 295 U.S. 555 (1935). 69Newton,243. 48293 U.S. 388 (1935). 70Warren received a recess appointment on October 2. He 49Ross, 245. was commissioned on March 2,1954, with the commission SOld., 243. recorded on April 5. Slid., xviii. Ross places in the internalist camp such schol 7INewton,517-18. ars as Barry Cushman, Richard Friedman, and G. Edward 72Quoted in Bernard Schwartz, Super Chief (1983), 32. White. 73Alpheus T. Mason, "The Burger Court in Historical Per 52Ross, xviii. spective," 89 Political Science Quarterly 27,34 (1974). 53For Ross, externalists include scholars such as William 74Robert G. McCloskey, The Modern Supreme Court Leuchtenburg. (1972),7. 54Ross, xviii. 75Baker v. Carr, 369 U.S. 186, 339 (1962) (Harlan, 1., 55Id., xix. dissenting). 561d. 76Mason, "The Burger Court in Historical Perspective," 57Id., 135. 28. 58/d., 249. 77 New York Times, June 23, 1969, p. I. 59304 U.S. 144, 152 (1938). 78Newton, 382. 6oRoss, 219. 79Alexander M. Bickel, The Supreme Court and the Idea 61/d.,219. of Progress (1970),45. 62[n Morehead v. New York ex rei. Tipaldo, Roberts and 8oNewton,516. four other Justices, through an opinion by Justice Butler, 81/d., 518. invalidated New York's minimum wage for women. Chief 82Robert B. Semple, Jr., "Nixon Withholds His Peace Justice Hughes,joined by Justices Brandeis, Cardozo, and Ideas," New York Times, March II, 1968, pp. 1,33. Nixon Stone, dissented. used nearly identical phrasing in his acceptance speech at 63Felix Frankfurter, "Mr. Justice Roberts," I 04 University the RepubJican convention in Miami on August 8. of Pennsylvania Law Review 311 (1955). In this article, 8Wew York Times, May 31, 1968, p. 18. Justice Frankfurter drew upon a 1945 memorandum from 84Alpheus Thomas Mason and Donald Grier Stephenson, Justice Roberts. In this memo, Roberts explained his vote Jr., American Constitutional Law: Introductory Essays in Tipaldo on the fact that counsel for New York had not and Selected Cases (15,h ed., 2008), 387. asked the Court to overrule Adkins v. Children:1 Hospital, 85367 U.S. 643 (1961). 261 U.S. 525 (1923), in which the Taft Court had invali 86Mapp appropriately receives considerable attention in dated a minimum-wage law for women in the District of Justice for All. See Newton, 383-84. Columbia and which the Tipaldo Court saw as controlling 87Carolyn N. Long, Mapp v. Ohio (2007) (hereafter cited the outcome in the New York case. In the spring of 1937, as Long). in the famous switch in time, Roberts voted to uphold the 88494 U.S. 872 (1990). See Stephenson, "The Judicial state of Washington's minimum-wage law for women in Bookshelf," 27 lournal ofSupreme Court History 1,73 West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). 75 (2002). 64Ross, 124-26. 89Carolyn N. Long, Religious Freedom and Indian 65Hughes, The Supreme Court of the United States Rights (2000). (1928),50. 90Long, xi. For example, the reader learns that Ms. Mapp, 66Hepburn v. Griswold, 75 U.S. 603 (1870), and Knox v. 82 years ofage when the book went into production, moved Lee, 79 U.S. 457 (1871). from Cleveland to New York in 1968, where she was sen 67 158 U.S. 60 I (1895) (rehearing). tenced to a prison term on a narcotics charge during the 68Jim Newton, Justice for All (2006) (hereafter cited as 1970s. She currently resides in Queens County, New York, Newton). The title seems to be inspired by the Pledge of where she had held a real-estate license for some time. Allegiance to the Flag, but also by the litany inscribed on Long, 196, 200. Warren's tombstone at Arlington Cemetery: "Where there 9lPeopie v. Defore, 242 N.Y. 13, 15, 150 N.E. 585,586 is injustice, we should correct it; where there is poverty, we (1926). should eliminate it; where there is corruption, we should 92The exclusionary rule was first applied to certain federal stamp it out; where there is violence we should punish it; criminal prosecutions in Weeks v. United States, 232 U.S. where there is neglect, we should provide care; where there 383 (1914). is war, we should restore peace; and wherever corrections 93Long, 126. 220 JOURNAL OF SUPREME COURT HISTORY

94 384 US. 436 (1966). I08Quoied in Long, 93. 95Lol1g, 13. I09Quoied in id., 91. 96A majority of the Ohio Supreme Court had actually de IIOFor example, United States \, Leon, 468 US. 897 cided for Ms. Mapp, in that four ofthe seven justlces found (1984), allowed II "good faith exception for certain war· the statute unconstitutional. Because Ohio did not have rant (although not warrantless) searches in federal criminal exclusionary rule, the question of the admissibility of the prosecutions. evidence against her was not addressed. The state consti· 1IIId., 195. tution, however, mandated a supermajority in order for a 112Jili Norgren, Belva Lockwood (2007) (hereafter cited state law to be invalidated. Long, See Slate v. Mapp, as Lockwood). 170 Ohio SI. 417, 166 N.E. 2d 387 (1960). , IIJld., xiii. 97When it came, the Court's answer was in the negative. 114Id., 50-51. See Stanley v. Georgia, 394 U. S. 557 (1969). I I SId., 71 98Wol{ v. Colorado, 338 US. 25 (1949), incorporated the 11683 US. 130, 141 (1873). Fourth Amendment into the Fourteenth, but did so without 117Lockwood, 73. An excerpt from the Supreme Court's also including the judicially crafted exclusionary rule from minutes ofNovembcr6, 1877, on the denial ofLockwood's Weeks, and so had been oflittle help to criminal defendants application is reprinted in Charles Warren, The Supreme in state courts. Court in United States History (rev. ed. 1926), vol. 99Long,69 550-51 n. IOOQuoied in id., 82. 118Lockwood, 74. Some years later, Lockwood was un 101 QUOled in id., 82-83. successful in petitioning the Supreme Court for a writ of I02Id.,83. mandamus to the Supreme Court of Appeals of Virginia I031d.,84 to admit her to practice law in that court. See Ex parle I04Quoted in id., 85. Lociuv()od, 154 US. 116 (1894). 105342 US. 165, 172 (1952). 119Lockwood,82. 106Long, 86 120Uniled Slales 1'. Cherokee Natian, 202 US. !OJ 107347 US. 128 (1954). 121Lockwood, ix. Contributors

Ross E. Davies is a professor of law at George is the author of Shattered Dreams: Samuel Mason University and editor-in-chief of the Freeman Miller and the Court Green During the Civil War Era.

Paul Kens is a of political science D. Grier Jr. is the Charles A. and at Texas State University-San Mar Dana Professor of Government at Franklin cos and the author ofJustice Stephen J. Field: and Marshall and con Liberty from the Gold Rush to the tributes 'The Judicial Bookshelf" to the Journal.

Jonathan Lurie is a of history at William M. Wiecek is the Chester A. Con- He is the with Chair Law and Legislation ofThe Slaughterhouse Cases: School of Law and Reconstruction, and the Four with the history teenth Amendment. of the Maxwell School. He is the author of The Birth of the Modern James O'Hara was a professor of law and an Constitution: The United States Supreme administrator at Loyola College to his which was published as and is a trustee of the Society. Wendell Holmes Devise Michael A. Ross is an associate professor of Court of the United history at Loyola University New Orleans. He States. 222

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