Vol. 15 No.6 (June 2005), pp.594-597

THE WAITE COURT: JUSTICES, RULINGS, AND LEGACY, by Donald Grier Stephenson, Jr. ABC-CLIO, 2003. 349pp. Hardcover.  $65.00.  ISBN: 1-57607-830-2.

Reviewed by Charles McCardell, Attorney/Law Librarian, VFMAC.  Email:  chasm1@comcast.net .

Editor Peter Renstrom explains in his Forward to THE WAITE COURT: JUSTICES, RULINGS, AND LEGACY that the ABC-CLIO Supreme Court Series is designed to reach not only the academic and legal community, but also a more general audience interested in Supreme Court history. When completed, the Series will encompass the tenure of each of the fourteen Chief Justices in the Court’s history, beginning with John Jay and ending with current Chief Justice William Rehnquist.

Donald Grier Stephenson’s volume follows a very similar format laid out in the previous handbooks. Part I begins with a brief overview of the Court and the historical period, moves on to provide biographical background on each justice to sit on Waite’s Court, discusses the major cases decided during Waite’s tenure, and concludes with an analysis of the legacy and impact of the Waite Court. Part II contains approximately 90 pages of supporting reference materials – key people, laws, events, documents, and a table of cases. There is a glossary of legal terms and an annotated bibliography of books, articles, court reporters, internet resources and manuscript sources.  THE WAITE COURT is the perfect start for anyone reviewing the Supreme Court under Chief Justice Morrison Remick Waite.

Waite, seventh Chief Justice, held the position from March 4, 1874 until his death, March 23, 1888, 14 years later.  In his position Waite carried enormous duties.  “In 1877, Chief Justice Waite lamented that his Christmas ‘vacation as it is called . . . has consisted in writing nine opinions.’ The tenor of his correspondence shows the extreme strain upon the Court: he described himself as ‘a machine’ and ‘a slave,’ ‘harnessed into my treadmill,’ ‘worked almost to death’ with ‘hardly time to breathe,’ noting that the hard work ‘has worn me out completely.’  In addition, in an era before pension legislation would facilitate retirement, not all members of the Court were able to pull their weight. As a result, Chief Justice Waite wrote an astounding number of opinions for the Court - 873 during his fourteen-year tenure, an average of more than sixty per term. Only Justice Holmes, who served more than twice as long on the Court, wrote (one) more” (Cordray and Cordray 2004 (internal citations omitted)).  On March 5, 1888 Waite completed his last opinion in the TELEPHONE CASES, sustaining the 1876 patent of Alexander Graham Bell and laying the legal foundation of the U.S Telecommunications industry.  Oral arguments lasted 12 days in January and February of the preceding year.  Waite’s opinion, Justice Bradley’s shorter dissent, and descriptions of the patent disputes totaled 500 pages, the entire contents of 126 U.S. Reports!  Although [*595] Waite was suffering from pneumonia, he attempted to read his opinion in court, but he was unable to finish.  Waite died four days later at seventy-two years old.  In addition to having an ailing Chief Justice at the end, the Waite Court had another similarity to the Rehnquist Court.  The Waite Court was embroiled in the controversial election of 1876-77 (pp. 228-236).

As Stephenson notes, of the 14 justices who served with Waite, “fully one-third of them have been accorded great or near-great status by scholars of the Supreme Court” (p.xii).  Justices Field, Miller, Bradley, and Harlan top the list.

Stephenson divides the Court into three distinct periods with “relatively stable membership and a somewhat different character . . . first (1874-1877), middle (1877-1881), and last (1881-1888) Waite Courts” (p.xii).  He also looks at the evolution of the Supreme Court as moving from a “classical” to a “modern” Court, with the Waite Court occurring in the “transition” period.  Stephenson suggests that the “standard” terms of “old Court” and “new Court,” focusing on the Court’s resistance during Chief Justice Hughes’ tenure to FDR’s New Deal legislation and the Court-packing threat in the 1930s, is too limited.  The old Court was property-oriented and minimized government’s role in commercial activity; the new Court stressed guarding the nonproprietary rights of individuals.

For Stephenson, the classical Court, which starts with Jay and Marshall, limited federal jurisdiction, primarily addressed errors rather than leading legal policy, and was burdened with circuit court duties.  The modern Court, by contrast, expanded federal jurisdiction, increased the focus on individual rights, and encouraged the role of the justices as “arbiter of policy for the nation” (p.226).  Because he observes the Waite Court to have more in common with its earlier predecessor under Chief Justice Marshall than its successor under Fuller, Stephenson marks Waite as a transitional figure.

Conversion was set in motion by the three Reconstruction amendments and congressional statutes restricting state authority in order to protect individual rights.  The Court under Chief Justice Salmon P. Chase hesitated to expand federal jurisdiction, and Stephenson cites BLYEW v. UNITED STATES (1872) and the three SLAUGHTERHOUSE CASES (1873) as evidence.  A third example, SEWING MACHINE COMPANIES CASE (1874) was decided during the search for Salmon’s successor.

The Fourteenth Amendment contains unique language in Section 1 and an equal protection clause that became fertile soil for litigation involving racial justice.  Even the privileges and immunities and due process clauses, usually limited to occupational freedom and property use, were “critical issues of civil liberties and civil rights.  Property was then, as now, an indispensable basis of freedom” (p.226).

After reviewing the legacy of the Chase Court, Stephenson sketches the political context accompanying each appointment to the Waite Court and the social and historical events influencing the Court, including population growth and industrialization in the post-Civil War era, as well as the expanding jurisdiction [*596] and increasing caseload of the Court’s docket.

Stephenson also provides detailed biographical sketches of all the Waite Court members in order of their appointment, starting with Nathan Clifford, President Buchanan’s only appointee.  He then analyzes the major decisions, grouped under several topics – civil rights, the Bill of Rights, due process of law and the state, and the Commerce Clause –and summarizes the legacy and impact of the Waite Court as a transitional court.  Part Two contains the reference materials.

Since civil rights cases still reach the Courts docket, it is interesting to review the Waite Court’s early decisions in the nascent civil rights movement.  The Enforcement Act of 1870 addressed voting rights and racial discrimination, and U.S. v. REESE (1876) and U.S. v. CRUIKSHANK (1876) challenged the statute.  In MINOR v. HAPPERSETT (1875) Waite writes an opinion deciding whether the privileges and immunities clause barred states from excluding women from the polls.  EX PARTE YARBROUGH (1884) is the primary case supporting federal protection of voting rights. Justice Bradley, writing for the 8-1 majority, denied Congress the authority to ban racial discrimination in places of public accommodation and on public conveyances in the CIVIL RIGHTS CASES (1883), and Justice John Marshall Harlan wrote his first dissent.  Indeed, Stephenson offers a wonderful story about Justice Harlan’s drafting of his dissent.  According to Mrs. Harlan, her husband had “writer’s block” and could not finish the draft.  She fetched an old inkstand from storage, which had belonged to Chief Justice Taney and had been used by Taney to write his DRED SCOTT opinion.  The thought of that ignominious decision, “temporarily tightening the shackles of slavery upon the Negro race” (p.162), provided ample impetus to complete his draft, a dissent that Harlan would revisit in PLESSY (1896) as a member of the Fuller Court.  The other sets of issues mentioned above are also covered with the same skill and thoroughness, blending history, case analysis, and personal anecdote.

This is a highly readable reference book, accessible to a wide audience.  Stephenson has provided considerable material for students and scholars to better understand the transitional Waite Court.

REFERENCES:

Cordray, Margaret Meriwether, and Richard Cordray.  2004. “The Calendar of the Justices: How the Supreme Court’s Timing Affects its Decisionmaking.” 36 ARIZONA STATE LAW JOURNAL 183-255.

CASE REFERENCES:

BLYEW v. UNITED STATES, 80 U.S. 581 (1872).

CIVIL RIGHTS CASES, 109 U.S. 3 (1883).

EX PARTE YARBROUGH, 110 U.S. 651 (1884).

MINOR v. HAPPERSETT, 88 U.S. 162 (1875).

PLESSY v. FERGUSON, 163 U.S. 537 (1896). [*597]

SEWING MACHINE COMPANIES CASE, 85 U.S. 553 (1874).

SLAUGHTERHOUSE CASES, 83 U.S. 36 (1873).

TELEPHONE CASES, 126 U.S. 1 (1888).

UNITED STATES v. CRUIKSHANK, 92 U.S. 542 (1876).

UNITED STATES v. REESE, 92 U.S. 214 (1876).

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© Copyright 2005 by the author, Charles McCardell.