"Shaping the Future," a look at U.S. chief justices: Part II

Issue February 2006 By Christopher R. Vaccaro, Esq.

This is the second of a three-part series discussing the contributions of the chief justices to this nation, summarizing their impact on the court and American history. As we look to learn from the "Shaping the Future of the Legal Profession" Annual Conference in March, some context for the rich history of the Supreme Court will provide a further appreciation of the past.

Since the establishment of the Supreme Court, 17 individuals have served as chief justice. All have contributed to the development of this nation and its laws.

In the early 1800s, the court's decisions elevated it to a status more equal to the legislative and executive branches. At the turn of the 20th century, the court vigorously acted to curb executive and legislative authority. During the 1950s and 1960s, the court expanded its involvement in civil rights cases and efforts to limit governmental power over individuals, often at the expense of federal and state legislatures. That trend has slowed. It remains to bee seen how the recently appointed chief justice, John G. Roberts, will influence American history.

This installation of "Shaping the Future" highlights the five Supreme Court justices who presided from 1864 to 1930.

Salmon P. Chase, attorney general of fugitive slaves
Following Chief Justice Taney's death in 1864, President Lincoln appointed Salmon P. Chase as the Supreme Court's sixth chief justice.

After opening a law office in Cincinnati in 1829, Chase spent 20 years energetically defending runaway slaves and their protectors. He was dedicated to ending slavery in America, often representing these defendants at no charge. His detractors labeled him the "attorney general for fugitive slaves." His attacks on slavery in the courts, though generally unsuccessful, enhanced his political status. After organizing the Free Soil party in Ohio, he was elected to the U.S. Senate in 1848, serving there for a single term.

Chase was elected governor of Ohio in 1855 and 1857 as a member of the recently established Republican Party. As governor, he promoted public education, prison reform and women's rights. He sought the Republican nomination for president in 1860, but was unsuccessful because of his reputation as an extreme abolitionist. Instead, he was reelected to the U.S. Senate, holding that office for only two days before resigning to become secretary of the treasury to the new president, fellow Republican Abraham Lincoln.

To finance the Civil War, Secretary Chase framed legislation for new taxes, issuance of government debentures and paper currency and a new national banking system. Respect for Chase's capability later resulted in his picture appearing on the $10,000 bill and his name being used by the Chase Manhattan Bank. However, conflicts developed between Lincoln and the politically ambitious Chase, and the president accepted Chase's resignation as secretary of the treasury in 1864 while Chase tried to secure the Republican nomination for president over Lincoln. Nevertheless, Lincoln nominated Chase as chief justice in 1864. The new chief justice promptly appointed John Rock as the first African-American lawyer to appear before the Supreme Court. He also administered the oath of office to Vice President Andrew Johnson following Lincoln's assassination in 1865, mere days after the end of the Civil War.

After radical Republicans in the House of Representatives impeached President Andrew Johnson because of his opposition to Reconstruction, Chief Justice Chase presided at the Senate impeachment trial as required under the Constitution. Johnson avoided removal from office by a single vote in the Senate.

The Supreme Court was often divided during Chase's tenure, especially in cases involving post-war Reconstruction legislation, which punished the rebel states and Confederate sympathizers. The chief justice generally supported Reconstruction, sometimes in dissent. For example, in Ex parte Milligan, 71 U.S. 2 (1866), the court ordered the release of an Indiana resident held by the military for allegedly conspiring against the federal government. Chief Justice Chase dissented from the majority statement that Congress could not constitutionally require military justice for civilians during wartime. He also dissented in Cummings v. Missouri, 71 U.S. 277 (1867), holding a state law requiring loyalty oaths of members of certain professions to be unconstitutional. The chief justice authored Mississippi v. Johnson, 71 U.S. 475 (1867), holding that the court lacked jurisdiction to enjoin presidential enforcement of the federal Reconstruction Acts; and concurred with Georgia v. Stanton, 73 U.S. 50 (1867), denying the court jurisdiction to hear a petition challenging the military government in Georgia.

The Chase Court also decided the early Legal Tender Cases, namely, Hepburn v. Griswold, 75 U.S. 603 (1870), Knox v. Lee and Parker v. Davis, 79 U.S. 457 (1871), challenging Civil War legislation authorizing the printing of fiat money and requiring creditors to accept it as payment. As secretary of the treasury, Chase had reluctantly advanced this legislation. However, in Hepburn, Chase authored the 4-3 majority opinion declaring the law unconstitutional. The decision angered President Ulysses S. Grant who, in an early example of presidential court-packing, encouraged Congress to create positions for two additional seats on the court and filled them with supporters of paper currency. The new court reversed Hepburn by a 5-4 margin in Knox and Parker.

One of the last opinions rendered by the Chase Court was the unfortunate Bradwell v. Illinois, 83 U.S. 130 (1873), from which the chief justice dissented. The Illinois Supreme Court had denied Myra Bradwell, an experienced legal journalist, a license to practice law. The court disagreed with Bradwell's argument that such denial violated the 14th Amendment, and upheld the state court. The case is notorious because of Associate Justice Joseph Bradley's unenlightened pronouncement that "[t]he paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator." Myra Bradwell was ultimately admitted to practice before the U.S. Supreme Court in 1890. However, the disagreeable precedent of the Bradwell case remained undisturbed for generations.

Chase did not let his position on the bench prevent him from active political participation. He unsuccessfully ran for president, as a Democrat, in 1868, and opposed Grant's candidacy in 1872. However, poor health resulting from a stroke eventually overcame him, and he died in New York on May 7, 1873.

Morrison R. Waite and the Civil War amendments
On March 4, 1874, Morrison Remick Waite was sworn in as the Supreme Court's seventh chief justice.

Waite's nomination followed several months of embarrassing missteps by President Grant to fill the vacancy caused by Chase's death in May of 1873. The president waited until November before offering the seat to a series of political allies, all of whom declined. The president then nominated Attorney General George H. Williams, who was prepared to accept the nomination. However, when word traveled that Williams had used government funds to buy an elaborate carriage for his personal use and that Senate confirmation was unlikely, the president withdrew this nomination. The next nominee, Caleb Cushing, fared no better than the attorney general, and the nomination was withdrawn following accusations that Cushing had maintained a treasonous relationship with Jefferson Davis, the former Confederate president. Finally, on Jan. 19, 1874, Grant nominated Waite, who was confirmed by the Senate two days later.

The most significant work of the Waite Court concerned the 13th, 14th and 15th Amendments, sometimes referred to as the Civil War amendments. The 13th Amendment, ratified in 1865, abolished slavery. The 14th Amendment was ratified in 1868 and required state governments to assure due process and equal protection under the laws to all persons. The 15th Amendment was ratified in 1870 and prohibited the denial of voting rights to any person because of race, color or previous condition of servitude. The Civil War amendments offered a solid constitutional basis for the Republican-controlled federal government to legislate racial equality, and it promptly enacted civil rights laws for this purpose.

Chief Justice Waite thoughtfully interpreted the 14th Amendment in Munn v. Illinois, 94 U.S. 113 (1876), where grain elevator owners argued that state price controls violated the 14th Amendment's due process clause. Writing for the majority, Waite held that Illinois' police power authorized price controls, and urged that "for protection of abuses by legislatures the people must resort to the polls, not to the courts." The chief justice's suggestion that disgruntled citizens seek recourse through the electoral process, rather than litigation, has been often repeated. However, the Waite Court disregarded this advice when ruling on two federal civil rights statutes, the Force Act of 1870 and the Civil Rights Act of 1875.

Congress had passed the Force Act to protect African-Americans from Southern resistance organizations such as the Ku Klux Klan, which terrorized recently freed slaves. The Civil Rights Act of 1875 prohibited private businesses from discriminating against African-Americans in transportation, lodging and entertainment facilities. In United States v. Harris, 106 U.S. 629 (1883) and The Civil Rights Cases, 109 U.S. 3 (1883), the Waite Court found both statutes unconstitutional, holding that the 14th Amendment only empowered Congress to forbid discrimination by state governments, not misconduct by individuals and private businesses. Associate Justice John Marshall Harlan (who had been born into a slaveholding family in Kentucky) dissented in The Civil Rights Cases, maintaining that Congress could enact legislation "to enable the black race to take the rank as mere citizens." Justice Harlan's compelling dissent did not persuade the majority.

Lacking the public service experience of his predecessors, Waite was not the leader that chief justices Marshall or Taney had been. However, he authored 872 opinions for an over-worked court during his 14-year tenure, addressing such varied topics as polygamy, interstate commerce, railroads, corporations and intellectual property. He died in Washington, D.C. on March 23, 1888, a few days after issuance of his opinion in The Telephone Cases, 126 U.S. 1 (1888), awarding telephone patent rights to the Bell Telephone Company.

Melville W. Fuller and economic rights
Like his predecessor, Morrison Waite, Illinois lawyer Melville Weston Fuller had little experience in public service prior to his appointment as the court's eighth chief justice in 1888.

Born in Augusta, Maine on Feb. 11, 1833, Fuller studied law in Maine and at Harvard Law School, but soon moved to Chicago, where he became a prominent attorney, arguing cases before the Supreme Courts of Illinois and the United States. He served a term in the Illinois Legislature and was a delegate to the Democrats' national convention in 1876. Fuller's legal and political talents brought him to the attention of President Grover Cleveland, who nominated Fuller after Waite's death. Fuller occupied the chief justice seat for nearly 22 years.

No discussion of the Fuller Court would be complete without mentioning Plessy v. Ferguson, 163 U.S. 537 (1896). In Plessy, the chief justice joined the majority in upholding a Louisiana law mandating racial segregation of railway passengers and imposing criminal sanctions for violations. Associate Justice John Harlan was the lone dissenter, insisting that "our Constitution is color-blind, and neither knows nor tolerates classes among citizens." Many regard the Plessy decision as a low point in the court's history.

The Fuller Court is also known for its approach to laws regulating business interests. At the turn of the century, the railroad, oil and steel industries were falling under the control of monopolies. Congress enacted the Sherman Antitrust Act in 1890, responding to this threat to business competition. The act prohibited contracts, combinations, conspiracies and monopolies in restraint of interstate commerce. However, the act's ambiguous language did not specify whether it regulated industry, labor or both. The court's rulings underscored the act's shortcomings. For example, in United States v. Debs, 158 U.S. 564 (1895) the Fuller Court affirmed a lower court holding that organizers of the Pullman Strike in Chicago had violated the act; but in United States v. E. C. Knight Company, 156 U.S. 1 (1895), Fuller wrote that a company controlling 98 percent of the nation's sugar-refining capacity was engaged in manufacturing, not interstate commerce, and therefore could not be prosecuted under the act.

In spite of this setback, attempts to enforce the Sherman Antitrust Act continued. President Theodore Roosevelt was determined to fight monopolies under the act when he took office in 1901. A 5-4 court decision authored by Justice Harlan (Chief Justice Fuller joined the dissent) enabled the Roosevelt administration to successfully prosecute a nation-wide railway conglomerate under the act in Northern Securities Company v. United States, 193 U.S. 197 (1904).

Fuller's view that the Constitution limited governmental powers was evident in Pollock v. Farmers' Loan & Trust Co., 158 U.S. 601 (1895), where a taxpayer challenged a modest federal income tax (two percent on incomes exceeding $4,000 per year). Citing Article I, Section 9 of the Constitution, which prohibits direct taxes unless apportioned by state population, a divided court concluded that the income tax was unconstitutional. Pollock was later overturned by ratification of the 16th Amendment in 1913, which enshrined congressional power to collect income taxes.

The Fuller Court's inclination toward business interests was most evident in Lochner v. New York, 198 U.S. 45 (1905), involving a state law limiting bakers' work hours. The statute was arguably a reasonable exercise of a state's police powers to protect employees. However, a divided court decided, 5-to-4 (with the chief justice in the majority), that the statute violated the 14th Amendment's due process clause and exceeded the state's police power, because it unreasonably interfered with individuals' rights to enter into contracts. The reliable Justice Harlan (with justices Edward White and William Day) dissented, as did Justice Oliver Wendell Holmes Jr. The dissents criticized the majority's creation of rights from the 14th Amendment's due process clause. The Lochner decision remained a significant precedent for the next two decades until the court repudiated it. Many constitutional scholars have condemned the decision as an abuse of judicial review.

Fuller died on July 4, 1910 at his summer home in Sorrento, Maine. He was not among the court's leading justices. His opinions often lacked concise, readable prose, and his abilities were overshadowed by those of his contemporaries, such as Justice Harlan and Justice Holmes. He has been admired as a congenial chief justice who required his colleagues to shake hands before judicial conferences. However, his complicity in decisions validating racial segregation and resisting business regulation has tarnished his legacy.

Edward Douglass White, a son of the Confederacy
President William Howard Taft promoted Associate Justice Edward Douglass White following Fuller's death, making White the first sitting associate justice to attain the chief justice's chair in the court's 110-year history.

White was born on Nov. 3, 1845 in Lafourche Parish, La. into an established slaveholding family. His father, also named Edward Douglass White, was a judge, U.S. Congressman, governor of Louisiana and owner of a sugar plantation. White studied law and was admitted to the Louisiana bar in 1868. He became a Louisiana state senator in 1874 and served as an associate justice of the Louisiana Supreme Court for 15 months in 1879 and 1880, until political rivals changed Louisiana's state constitution so that White was too young for the court. He returned to his law practice, and was elected to the U.S. Senate as a Democrat, with a term beginning in 1891. He resigned from the Senate in 1894 after President Cleveland nominated him for the U.S. Supreme Court, where he served as an associate justice for 16 years. His collegiality with other justices and with Taft's Republican administration facilitated White's elevation to the chief justice's seat in 1910.

One of White's lasting contributions to American jurisprudence is the "rule of reason" for determining whether a monopoly violates the Sherman Antitrust Act, as expounded in Standard Oil Co. of New Jersey v. United States, 221 U.S. 1 (1911). While upholding the government's efforts to break up John D. Rockefeller's Standard Oil trust, the chief justice's majority opinion stated that monopolies developed to enhance efficiency and productivity are not illegal, as opposed to monopolies assembled to restrain trade unreasonably. The rule of reason survives to this day as a principle of antitrust law.

In addition to antitrust matters, the White Court rendered decisions on the constitutional rights of individuals. White joined the court's unanimous opinion in Weeks v. United States, 232 U.S. 383 (1914), holding that a U.S. marshal's warrantless seizure of evidence from a residence is unconstitutional under the Fourth Amendment, and the use of such evidence at trial is improper. He also sided with the majority in a pair of cases limiting the First Amendment's freedom of speech during wartime. In Schenck v. United States, 249 U.S. 47 (1919), the chief justice agreed with Justice Holmes's unanimous opinion supporting prosecution of a Socialist party leader who had mailed draftees letters attacking the draft. He also joined the majority (justices Holmes and Louis Brandeis dissented) in Abrams v. United States, 250 U.S. 616 (1919), affirming convictions and 20-year prison sentences against Russian immigrants who had distributed leaflets denouncing American military opposition to the Russian Revolution and calling for strikes to impede arms production.

White died in Washington, D.C. on May 19, 1921. He was unusual among chief justices because of his service in the Confederate army, his background in both English common law and Louisiana's civil code, and his harmonious relations with both Republican and Democrat political leaders.

William Howard Taft, president and chief justice
Perhaps no member of the U.S. Supreme Court has owned a resume as impressive as that of the 10th chief justice, William Howard Taft.

Born on Sept. 15, 1857 in Cincinnati, Ohio, Taft attended Yale, graduating second in his class in 1878. He graduated from Cincinnati Law School in 1880 and opened his private law practice. Taft quickly gained appointments between 1887 and 1900 as a Cincinnati Superior Court judge, U.S. solicitor general and judge on the Sixth Circuit of the U.S. Court of Appeals. He aspired to a Supreme Court seat; however, after the conclusion of the Spanish-American War, he reluctantly accepted an appointment by President William McKinley to the commission overseeing the Philippine Islands, which Spain had recently ceded to the United States.

While Taft was leading American efforts in the Philippines, President Roosevelt offered Taft a position on the Supreme Court. However, Taft postponed his ambitions for a seat on the court so that he could complete his work in the Philippines. Taft instead served as civilian governor-general there until 1903, when the president appointed him secretary of war.

Secretary Taft was among Roosevelt's closest associates during a period when the United States emerged as a world power. Taft helped the president's negotiations to end the Russo-Japanese War of 1904-1905 and helped to secure Cuba as a U.S. protectorate. Roosevelt rewarded Taft's achievements, temporarily, by choosing him as the Republican candidate in the 1908 presidential election. Campaigning as a conservative in the East and as a progressive in the West, Taft easily defeated Democrat William Jennings Bryan.

President Taft was a better administrator than leader. Unable to please both the progressive and conservative factions of the Republican Party, he was perceived as abandoning many of Roosevelt's progressive goals, such as lower tariffs and conservation, even though he aggressively prosecuted antitrust cases. Taft also shared the populist movement's support for the 16th Amendment, authorizing Congress to levy income taxes, and the 17th Amendment, requiring election of U.S. senators by popular vote instead of by state legislatures. As to international relations, Taft pursued "dollar diplomacy," promoting investment in foreign countries to advance U.S. interests abroad.

After being defeated in his bid for a second presidential term in 1912, Taft left politics and became a professor at Yale Law School and president of the American Bar Association.

Taft's long-held hopes for a Supreme Court appointment were realized when President Warren G. Harding nominated him chief justice following Edward Douglass White's death in 1921. Taft generally continued the court's conservative approach.

In Myers v. United States, 272 U.S. 52 (1926), the chief justice upheld the president's right to dismiss presidential appointees, even though the Constitution does not specifically authorize such dismissal, ruling that a federal law requiring Senate approval for dismissal of a postmaster was unconstitutional. The chief justice accepted school racial segregation in Lum v. Rice, 275 U.S. 78 (1927), allowing a Mississippi school board to exclude a Chinese-American from a whites-only school while admitting her to a school for African-Americans. His 5-4 majority decision in Olmstead v. United States, 277 U.S. 438 (1928) eroded the Fourth Amendment, validating a warrantless wiretap of a bootlegger's telephone by federal agents (justices Holmes and Brandeis, as well as justices Harlan Fiske Stone and Pierce Butler, dissented). The court reversed the Olmstead decision in Katz v. United States, 389 U.S. 347 (1967).

The Taft Court continued judicial antagonism toward economic regulations. In Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922), the chief justice's majority decision declared a federal tax on the products of child labor to be unconstitutional. However, the chief justice dissented in Adkins v. Children's Hospital, 261 U.S. 525 (1923), where the majority held that a minimum wage law for women in the District of Columbia was an unconstitutional interference with contract rights.

A frequently cited opinion of the Taft Court is Pierce v. Society of Sisters, 268 U.S. 510 (1925). An Oregon statute mandated attendance at public schools, to the exclusion of private schools. Stating that parents' right to choose their children's place of education was a liberty protected by the 14th Amendment, the Taft Court unanimously invalidated the Oregon statute. Decades later, subsequent court decisions cited Pierce to support constitutional protections for activities that are not specifically mentioned in the Constitution but are considered within the right of privacy, such as use of contraception, abortion and homosexual conduct.

Taft reduced the court's enormous caseload by persuading Congress to pass the Judge's Act of 1925, also known as the Certiorari Act, giving the court discretion to select the cases it hears. He also successfully lobbied for construction of a separate federal building for the court, which had been sharing the Capitol with Congress.

Taft retired from the court on Feb. 3, 1930 because of poor health, making him the first chief justice since Oliver Ellsworth to resign. He died on March 8, 1930, a little more than a month after his retirement from the court. He remains the only person to have served as both president and Supreme Court justice.

Look for Part III of this special series in the March issue of Lawyers Journal.