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The men who sat on the court in the latter years of the nineteenth century had witnessed the transformation of the nation in their lifetimes. When they were born, most Americans lived on farms and in small towns, and millions of blacks labored in slavery in the South. They had lived through the wrenching Civil War, the uncompleted Reconstruction of the South, and the post–Civil War boom that Mark Twain labeled the Gilded Age. By 1890, when the Court began its second century, railroads spanned the continent, and factories were fast replacing farms as the center of American working life.

Melville W. Fuller, a railroad lawyer from Chicago, had become chief justice in 1888, heading a Court that fit with the conservative temper of the business elite of the era. The justices believed in the superiority of private enterprise and were skeptical of the government's efforts to regulate railroads and corporations. They feared the new radicalism of the labor movement, as the 1880s and 1890s “were punctuated by strikes and labor-related violence. The People's party, or Populists, gained widespread support in the early 1890s by calling for government action to remedy the inequities of the new industrial system,” writes Michael Les Benedict. “As the Populist strength grew, the justices became convinced that the Court must serve as the bulwark of property rights against threatened radical legislation.” [1]

The Court and its justices also believed in white supremacy and racial segregation as being “in the nature of things,” as Justice Henry B. Brown put it in Plessy v. Ferguson (1896), the decision that endorsed racial segregation. Although Plessy is today the best remembered opinion of the 1890s, the Fuller Court's probusiness decisions had a more stunning effect at the time. Within a few months in 1895, the Court shielded manufacturing monopolies from new antitrust laws, held that labor leaders could be held in contempt for leading a strike, and voided the income tax as unconstitutional. A dissenting justice called the latter ruling a surrender to “the moneyed classes.” Benedict writes: “With these decisions, the Court accepted the argument that various provisions of the Constitution incorporated the moral and economic principle of laissez faire and that government could not interfere with the free market's distribution of economic wealth and power.” [2] It would take decades—and in the case of the income tax, a constitutional amendment in 1913—to overturn those rulings. Fuller's twenty-two years as chief justice spanned the political and economic transition into the world of the twentieth century. William Swindler explains:

The passing of the frontier, the rise of an interstate industrialism, the shift from a rural to an urban distribution of population, the breakdown of nineteenth-century capitalism and the efforts to construct in its stead a twentieth-century capitalism, the breakthrough in science and technology, the change in the society of nations brought about by global wars and the militant dialectic of totalitarianism—the constitutional posture of the American people had to be readjusted in response to each of these.

Fuller's court stood upon the watershed, with a powerful pull of ideological gravity toward the past. [3]

President Benjamin Harrison chose four new justices during Fuller's first six years: David J. Brewer, Henry B. Brown, George Shiras Jr., and Howell E. Jackson. All were men of a conservative bent. The most notable of Harrison's selections was the first. To replace Justice Stanley Matthews, who had died in March 1889, Harrison chose Brewer, a federal circuit judge from Kansas and a nephew of Justice Stephen J. Field. During his twenty years on the Court, Brewer became one of its most articulate members. On March 3, 1890, he delivered his first major opinion for the Court. In Louisville, New Orleans and Texas Railway Co. v. Mississippi, the majority upheld a state law requiring railroads to provide separate accommodations for black and white passengers on trips within the state. Justices Joseph P. Bradley and John Marshall Harlan dissented.

Accepting the state court's view that the state law applied only to intrastate trips, the Supreme Court majority held that it did not burden interstate commerce. That ruling distinctly foreshadowed the Court's acceptance of the doctrine of “separate but equal” in Plessy, which established racial segregation in U.S. society that lasted well past the midpoint of the twentieth century. Three weeks after the Mississippi ruling, on March 24, 1890, the era of “substantive due process” began. For the first time the Court endorsed the belief that the Due Process Clause of the Fifth and the Fourteenth Amendments gives federal courts the power to review the substance of legislation, not just the procedures it establishes. At issue in Chicago, Milwaukee & St. Paul Railway Co. v. Minnesota (1890) was a Minnesota law that prescribed the rates that the railroad could charge but did not provide for judicial review of the reasonableness of these rates. [4] The Court held that this law denied the businessmen their right to due process, declaring by its action that it would no longer defer to legislative judgment in rate setting, as it had in Munn v. Illinois (1877). [5] Now it assumed for itself and other courts the power to review the wisdom of these economic decisions. This ruling extended the protection of the Fourteenth Amendment to business, adopting a view the Court had rejected in the Slaughterhouse Cases (1873). Six months later, Justice Samuel Miller, author of the Slaughterhouse opinion, died after twenty-eight years on the bench. Harrison chose Henry Brown, a federal judge from Michigan and a Yale classmate of Brewer's, to succeed Miller.

For the nation's first century, the Supreme Court was essentially the only federal court of appeals—the only court that heard appeals from the decisions of other federal courts. As a result of increasing litigation, its workload mushroomed. From the end of the Civil War until 1891, it was not at all uncommon for a case to wait two or three years after being docketed before it was argued before the Court. Although the Court made various changes in its operations to promote more expeditious handling of cases, all its efforts were of little avail in dealing with the increasing volume of business. In 1891 Congress finally eliminated the justices' obligation to ride circuit and set up a system of federal appeals courts between the old district and circuit courts, on the one hand, and the Supreme Court on the other. The decisions of these new circuit courts of appeals were final in many cases. When a decision was appealed from one of these new courts, the Supreme Court had complete discretion in deciding whether to review it. The result, at least for a time, was a reduction in the press of business at the Court.

In the early 1890s the Supreme Court decided Counselman v. Hitchcock (1892), one of its rare nineteenth-century rulings interpreting the Bill of Rights. [6] As it did six years earlier in Boyd v. United States (1886), which involved the Fifth Amendment's right against self-incrimination, the Court in deciding Counselman gave individuals broad protection against federal authority, invoking the Fifth Amendment's shield of immunity against compelled testimony before a federal agency or grand jury. The immunity provisions of the Interstate Commerce Act were constitutionally insufficient, the Court held. The Fifth Amendment, said the unanimous Court, allowed that a witness could be compelled to testify and give evidence against himself only if the government promised not to use that evidence in any way against him.

Within days of Counselman, Justice Joseph Bradley died. President Harrison chose as his successor George Shiras, a Pennsylvania lawyer whose clients included the great iron and steel companies of Pittsburgh and the Baltimore & Ohio Railroad. Despite opposition from his home state senators, Shiras was unanimously confirmed. In January 1893 Justice Lucius Lamar died. To succeed him, Harrison chose a friend from his Senate days, Howell Jackson of Tennessee, a federal circuit judge.

In mid-1893 Justice Samuel Blatchford, the author of Counselman, died. His seat had been held by a New Yorker since 1806. With his death this tradition ended. President Grover Cleveland tried twice, but without success, to elevate another New York attorney, but opposition from New York senators blocked the nominations of William Hornblower and Wheeler Peckham. In February 1894 Cleveland nominated Sen. Edward D. White of Louisiana to the seat. He was confirmed the same day. After seventeen years as an associate justice, White became the first sitting justice promoted to chief justice.


Document Citation
1 David G. Savage, From the Gilded Age to the Great Depression: Introduction, in Guide to the U.S. Supreme Court 35-36 (5th ed., 2011),
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