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Waite, Morrison Remick

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Birth: November 29, 1816, Lyme, Connecticut.

Education: Graduated from Yale College, 1837.

Official Positions: Ohio state representative, 1850–1852; representative to the Geneva Arbitration, 1871; president of the Ohio Constitutional Convention, 1873–1874.

Supreme Court Service: Nominated chief justice by President Ulysses S. Grant, January 19, 1874, to replace Chief Justice Salmon P. Chase, who had died; confirmed by the Senate, January 21, 1874, by a 63–0 vote; took judicial oath March 4, 1874; served until March 23, 1888; replaced by Melville W. Fuller, nominated by President Grover Cleveland.

Death: March 23, 1888, Washington, D.C.

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Morrison Remick Waite
Noteworthy Opinions

Morrison Remick Waite

Morrison Waite's appointment as chief justice of the United States was hardly auspicious. For one thing, Waite was nominated by President Ulysses S. Grant, renowned for heading one of the most corrupt administrations in American history. Moreover, Waite was not even Grant's first choice. Following unsuccessful attempts to place George H. Williams and Caleb Cushing on the Court, and after consideration of at least two others, Grant submitted Waite's name to replace Chief Justice Salmon P. Chase on January 19, 1874. Two days later an exhausted Congress confirmed the nomination. As Rep. Rockwood Hoar, R-Mass., observed, Waite had been “that luckiest of all individuals known to the law, an innocent third party without notice.”

That Waite had been “without notice” prior to his appointment was fairly certain. He was born in Lyme, Connecticut, on November 29, 1816, to an established New England family that produced a number of lawyers, including his father, Henry, who served as chief justice on the state supreme court. Like his father and grandfather before him, Morrison attended Bacon Academy and Yale College. After graduation, he studied law in his father's office, but in 1838 moved to Maumee City, Ohio, where he continued his law studies with Samuel D. Young. He was admitted to the bar and began a law practice largely devoted to commercial and corporate transactions. In 1840 he returned briefly to Connecticut to marry Amelia C. Warner, a second cousin. Ten years later, Waite moved his family to Toledo and set up practice with his younger brother Richard.

Waite's political involvement during his years building a successful law practice was minimal. He served briefly on the Toledo City Council, sat for one term in the state legislature, and made an unsuccessful run for Congress in 1862. Thanks in large part to geographic circumstances, Waite was appointed by President Grant in 1871 to serve as counsel for the United States during the arbitration negotiations in Geneva over the Alabama claims from the Civil War. Following his return from Switzerland, he served as delegate and president of the Ohio Constitutional Convention, the position he held when nominated in January 1874 to the Supreme Court.

The membership of the Court that Waite was chosen to lead reflected a variety of abilities, personalities, and beliefs. Nathan Clifford was a Democratic holdover from the preÐCivil War period, and his age and increasing senility proved a constant challenge to Waite's patience and good nature. David Davis, President Abraham Lincoln's former political manager, harbored an ongoing desire for the presidency, as perhaps did Stephen J. Field of California. Intellectually, the two dominant forces on the Court were Samuel Miller and Joseph P. Bradley; the latter became Waite's most consistent ally, while the former would always resent the fact that Grant had not selected him to be chief justice. The rest of the Court consisted of Republican appointees of lesser talents: Noah H. Swayne, Ward Hunt, and William Strong. Although he was never a dominant intellectual force on the Court, Waite was an “adept” social and managerial leader, using his inherent graciousness and good cheer, along with his power as chief justice to assign opinions, to mold an unusually harmonious Court.

Over the course of Waite's fourteen-year tenure as chief justice, the Supreme Court decided some 3,470 cases with opinions, of which Waite wrote 967. His tendency to go along with the Court's majority was evidenced by the fact that he dissented in only fifty-four cases or less than 2 percent. The large number of cases, as well as the variety of issues confronted, was due to the lack of discretion the Supreme Court could exercise over its docket during this period, rather than a testament to the Court's interests and work ethic.

Of all the public and private law issues that Waite and the Court encountered between 1874 and 1888, two were of paramount importance. One concerned the scope and meaning of the Reconstruction amendments, particularly as they affected the lives and future of the 3.5 million former slaves. The other, and to some extent related, issue was the role of government with regard to the growth of industrialism and the emergence of big business in late nineteenth-century America. Waite's contributions to the law in both of these areas are therefore the key to understanding his judicial philosophy and his role in American constitutional development.

Following the Civil War, Republicans in Congress passed measures intended to protect the economic, social, and political rights of blacks in the South who had recently been emancipated under the Thirteenth Amendment. As a further guarantee, Congress also enacted the Fourteenth Amendment, which forbade states to deprive any citizen of “life, liberty or property …. without due process of law,” and which required states to grant to all citizens the “equal protection of the laws,” as well as the “privileges and immunities” of all citizens. When this amendment proved insufficient to ensure the full participation of the freedmen in the political process of Reconstruction in the South, Congress passed the Fifteenth Amendment, which was ratified in 1870. Under this amendment, the right to vote could “not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” Sections in both the Fourteenth and Fifteenth Amendments gave Congress the authority to enforce the amendments' provisions “by appropriate legislation.”

Following reports of ongoing terrorism directed against blacks attempting to vote or participate in political activities, in 1870 and 1871 Congress passed three measures known as the enforcement acts. These measures set out a wide variety of possible crimes directed against potential voters and provided the machinery for federal enforcement through the Department of Justice. On March 27, 1876, the Supreme Court announced two decisions dealing with convictions under these statutes, and Waite wrote the majority opinion in both. In United States v. Cruikshank, the Court reviewed the convictions of three men accused of massacring at least 105 blacks and three whites outside the Grant Parish courthouse in Colfax, Louisiana, on Easter Sunday, 1873. In overturning the convictions, Waite admitted that the right to assemble peacefully was constitutionally protected, and that under the Fifteenth Amendment Congress could protect this right from infringement on account of race. Indeed, Congress had done so in the enforcement acts. The problem was whether the indictments under which the defendants had been tried were sufficient in law, and Waite argued they were not, because they had failed to allege that the murders had been committed because of the victims' race. “We may suspect that race was the cause of the hostility,” Waite concluded, “but it is not so averred.”

In United States v. Reese, also announced that day, Waite went further and declared two sections of the May 1870 enforcement act unconstitutional. In overturning the convictions of two Kentucky election inspectors for refusing to allow William Garner, a citizen “of African descent,” to vote, Waite held that the Fifteenth Amendment did not “confer the right of suffrage upon anyone.” It prohibited states from discriminating or “giving preference” in exercising voting rights on account of race, but the statutes under review did not specifically require this; hence they were invalid.

Waite's opinions in Reese and Cruikshank were just two of the Supreme Court rulings after 1873 that seemingly left the Reconstruction amendments and the various federal laws enforcing them “almost wholly ineffective” in protecting the rights of blacks in the South. In Virginia v. Rives (1880), the Court ruled that the absence of blacks on juries was not proof of racial discrimination. And most prominently, in the Civil Rights Cases (1883), the Court struck down the Civil Rights Act of 1875, which forbade racial discrimination in places of public accommodation. Yet a careful review of Waite's, and the Court's, opinions in other cases during these years suggests something other than outright hostility to the interests of African Americans. In Strauder v. West Virginia (1880), the Court struck down a state law requiring all-white juries as a violation of the equal protection clause of the Fourteenth Amendment. And that same year, in Neal v. Delaware, the Court held that state judges could not exclude blacks from jury duty.

Moreover, Waite supported strong congressional powers, particularly when it came to protecting voting rights. In three cases, Ex parte Siebold (1880), Ex parte Clark (1879), and, the most important, Ex parte Yarbrough (1884), the Court, with Waite's concurrence, upheld federal authority to protect voters from racially motivated infringement of their rights in state and local elections and under any circumstances in federal elections. This commitment to “preserving federalism,” as one scholar has put it, entailed a willingness to accept broad national authority while recognizing the limits of that authority in light of state actions and prerogatives.

To that extent, Waite was neither ahead of nor behind the views of most moderate white northerners, or of southern leaders such as Sen. Wade Hampton, D-S.C., who accepted black social inferiority but retained a concern for the protection of the “free ballot and a fair count.” Like many other white Americans of the time, Waite believed that the key to the future for African Americans in the South was education. He actively supported the Slater and Peabody Funds, two northern philanthropies set up to provide money for schools and colleges in the South for blacks, and he lobbied Congress (unsuccessfully) to provide federal funds for such efforts.

Waite's willingness to abandon blacks in the South to the mercy of their state governments, despite the due process and equal protection guarantees of the Fourteenth Amendment, reflected the increasing attention after 1874 to similar claims made by business owners in defense of their property interests. In the late nineteenth century industry and business in America experienced tremendous growth fueled by massive immigration, technological innovations, and government support on all levels. Changes resulting from this expansion were not entirely welcome, and various groups in American society, particularly farmers and labor, responded through organization and political action. At the same time, business and its attorneys discovered a federal judiciary that was willing to consider claims that economic regulation was unreasonable and, more important, unconstitutional.

Railroads were emblematic of late nineteenth-century industrialism and in the eyes of American farmers were the root cause of most of their troubles. During the late 1860s, farmer protest groups sprang up around the country, and in the Midwest they were particularly successful in capturing control of state legislatures. These states enacted a series of laws, known as the Granger laws, to regulate railroads and related businesses. In the landmark ruling Munn v. Illinois (1876), Waite, speaking for a 7–2 majority of the Court, upheld an 1871 Illinois statute regulating grain storage warehouses, known as grain elevators. Waite rejected the argument that the state regulations had deprived the elevator owners of their property without due process of law and sustained the laws as a valid use of state police power. Under this power, according to Waite, “The government regulates the conduct of citizens one towards another, and the manner in which each shall use his own property, when such regulation becomes necessary for the public good.”

If government can regulate private property, under what circumstances could it do so? For Waite, those circumstances existed when “one devotes his property to a use in which the public has an interest.” Ira Munn's grain storage elevators in Chicago were an important part of a vast national commercial network, and were therefore affected with a “public interest.” Finally, Waite rejected the notion that the laws denied owners “reasonable compensation” and that in any case, what was or was not reasonable was a “judicial” matter to be decided in the courts. The power to fix maximum rates is implied in the power to regulate, he asserted. “We know that this is a power which may be abused; but that is no argument against its existence. For protection against abuses by legislatures the people must resort to the polls, not to the courts.”

Scholars still debate the extent to which Waite's opinion in Munn was his own and not Justice Bradley's and the degree to which he misused the concept of public interest that English jurist Lord Hale had enunciated 200 years earlier. But Waite's decision in this case clearly reflects a number of themes that appeared throughout his career on the bench. Support for state regulation of business was certainly a principal theme. As a successful railroad and corporation attorney before he came to the Court, Waite was not unsympathetic to the interests and concerns of business. Moreover, as a Republican, Waite had little patience with the states' rights arguments of the preÐCivil War era. Yet he also recognized that changing times and economic circumstances required some limitations on corporate activity, and, along with a democratic faith in popular sovereignty, he believed that state legislatures should be the source of such limitations. In his view of state police powers, corporations, and the contract clause of the Constitution, Waite harkened back to Chief Justice Roger Taney's ruling in Charles River Bridge v. Warren Bridge (1836). For example, in Wright v. Nagle (1879), Waite allowed the state of Georgia authority to authorize new bridges for its rivers on the grounds that there was no “exclusive right to public franchises.” And in Stone v. Mississippi (1880), Waite upheld a state ban on a previously granted lottery charter, arguing that “the legislature cannot bargain away the police power of the State,” a power that “extends to all matters affecting the public health or the public morals.”

As he had in Munn, Waite found little merit in business owners' contention that economic regulation was a deprivation of their property rights under the due process clause of the Fourteenth Amendment or a violation of the contract clause of the Constitution. In Railroad Company v. Richmond (1878), he warned that “appropriate regulation of the use of property is not ‘taking’ property within the meaning of the constitutional prohibition.” And in a number of decisions after 1878, the Waite Court upheld state regulation of railroad rates, culminating in 1886 with its ruling in Stone v. Farmers' Loan & Trust Company. In that case, the state of Mississippi had specifically granted the Mobile and Ohio Railroad Company the power to fix rates. Subsequently, the state had created a special commission with the power to determine reasonable rates and charges for railroads operating within the state. The railroad contended that this was a direct violation of its charter rights and a deprivation of its property without due process of law.

In rejecting the railroad's arguments, Waite noted that the “great purpose” of the statute was to “regulate in some matters of a police nature the use of railroads in the State.” Citing Munn and the other railroad cases, he upheld both the states' power to regulate rates and their use of a commission in doing so. Even though the railroads were given authority to fix rates, such a grant was not a “renunciation of the right of legislative control so as to secure reasonable rates.” Remarkably, Waite did make an important concession to the railroads in the case. The chief justice admitted that

it is not to be inferred that this power of limitation or regulation is itself without limit.… Under pretense of regulating fares and freights, the State cannot require a railroad corporation to carry persons or property without reward; neither can it do that which in law amounts to a taking of private property for public use, without just compensation, or without due process of law.

Although not completely appreciated at the time, in the 1890s this statement provided the opening wedge for the Court to begin striking down the very kinds of economic regulation Waite was approving. With Waite gone, and the addition of the “new conservative” justices such as Horace Gray and David Brewer, the dissents of Justice Field in the Granger and railroad rate cases would become the basis of a new line of majority opinions striking down state economic and social regulations.

Waite's support for state regulatory authority also encompassed financial and debt obligations. To encourage and assist the construction of railroads, many states and localities had authorized large bond issues as a means of financing public improvements. When the economic benefits did not appear and those issuing the bonds were forced to assume an unwelcome debt, some states stepped in and attempted to repudiate or reduce the debt. Waite and the Court upheld these state actions. One example is Louisiana v. Lumel (1882), in which Waite cited the Eleventh Amendment's prohibition on suits by citizens of one state against another state in blocking a suit by an outside bondholder when Louisiana attempted such a repudiation in 1879. According to Waite, “The officers owe duty to the state, and have no contractual relations with the bond-holders. They can act only as the State directs them to act, and hold as the State allows them to hold.”

As was true with respect to civil rights, Waite supported broad national regulatory authority over commercial matters, believing that the commerce power must “keep pace with the progress of the country.” In 1866 Congress gave Western Union Telegraph Company the “right to construct, maintain, and operate lines of telegraph through and over any portion of the public domain of the United States.” Shortly thereafter, the Florida legislature granted Pensacola Telegraph Company the right to construct and run telegraph lines in several northern counties that connected to other states. In Pensacola Telegraph Company v. Western Union Company (1878), Waite rejected an attempt by the Pensacola company to prevent Western Union's franchise from operating in those areas covered by its service. He declared that the authority of the government of the United States

operates upon every foot of territory under its jurisdiction. It legislates for the whole nation, and is not embarrassed by State lines. Its peculiar duty is to protect one part of the country from encroachment by another upon the national rights which belong to all.

The state-chartered corporation, therefore, had to give way to a federally supported one.

Similarly, in the Sinking Fund Cases (1879), Waite supported significant national control over federally chartered corporations. He upheld congressional statutes requiring the Union Pacific and Central Pacific railroads to set up special funds explicitly reserved for the repayment of the debt on bonds issued by the federal government to enable the original construction of the railroads. In doing so, he cited the critical role railroads had come to play in national commerce, as well as the fact that as national corporations, they were subject to federal restrictions. Going back to Munn, Waite stated that both railroads were private corporations whose property is “to a large extent devoted to public uses.” As such, these businesses were subject to regulation, including “regulations by which suitable provision will be secured in advance for the payment of existing debts when they fall due.” Requiring the railroads to create these sinking funds was a kind of “deposit of security” intended to protect the public and ensure the “solvency” of the railroads themselves.

Waite's commitment to “preserving federalism” in the area of civil rights can therefore be seen as consistent with his economic views. In the 1890s and after, Justice Field's dissents became the basis for the Court's rejection of economic and social legislation, but Waite's view of state and national regulatory powers was never totally repudiated, even during the Progressive Era and the zenith of judicial activism in protecting corporate property rights from government interference in the 1920s. To that extent, his constitutional philosophy could be seen as part of the liberal tradition of American politics. At the same time, his faith in a legislative rather than judicial approach to solving the problems of an increasingly complex industrialized society would seem to place him in the “judicial restraint” tradition of modern-day conservatives.

According to Felix Frankfurter, Waite's opinions were generally “humdrum, matter of fact, dry lawyer's English.” It was a characterization Waite himself would probably not have disputed. His strengths were his character and leadership and an ability to recognize his own limitations. The moderation that provoked disparaging evaluations of his abilities and beliefs during his tenure now seems more like the work of a judicial statesman in the tradition of other great chief justices such as John Marshall and Earl Warren. He most certainly helped restore the prestige of the Supreme Court to at least its stature before the “self-inflicted wound” of the Dred Scott v. Sandford decision in 1857. That he was devoted to his Court service is undeniable. In 1885 he suffered a breakdown, probably from overwork, but refused to retire. Three years later, he was still drafting opinions and leading the Court—almost literally up to the moment of his death from pneumonia on March 23, 1888.


The main body of primary source material is located in the Waite collection at the Library of Congress. Materials relating to the Supreme Court during Waite's chief justiceship are located in the Supreme Court records at the National Archives. Waite has not gone unnoticed by historians. C. Peter Magrath's Morrison Waite: The Triumph of Character (1963) is a well-balanced biography. The most comprehensive account of the Supreme Court during Waite's tenure can be found in Charles Fairman's contribution to the Holmes Devise History, Reconstruction and Reunion, 1864–88, part 2 (1987). For an appraisal of Waite as chief justice, see D. Grier Stephenson, “The Chief Justice as Leader: The Case of Morrison R. Waite,” William and Mary Law Review 14 (1973): 899; and a later revisiting of the issues, Stephenson, “The Waite Court at the Bar of History,” Denver University Law Review 81 (2003): 449. A persuasive reevaluation of Waite's civil rights decisions is Michael Les Benedict, “Preserving Federalism: Reconstruction and the Waite Court,” Supreme Court Review (1978): 39. Two older studies still worthwhile are Felix Frankfurter, The Commerce Clause Under Marshall, Taney and Waite (1937); and the chapter on Waite in Kenneth Umbreit, Our Eleven Chief Justices (1937).

Noteworthy Opinions

United States v. Reese, 92 U.S. 214 (1876)

United States v. Cruikshank, 92 U.S. 542 (1876)

Munn v. Illinois, 94 U.S. 113 (1876)

Pensacola Telegraph Co. v. Western Union Co., 96 U.S. 24 (1878)

Wright v. Nagle, 101 U.S. 791 (1879)

Louisiana v. Lumel, 107 U.S. 711 (1882)


Document Citation
Waite, Morrison Remick, in Biographical Encyclopedia of the Supreme Court 571 (Melvin I. Urofsky ed., 2006),
Document ID: bioenc-427-18170-979622
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