Five Chiefs Read online

  There is nothing mysterious about Marshall’s opinions in McCulloch and Gibbons. In McCulloch, the Court upheld the power of Congress to establish a national bank and invalidated an attempt by the State of Maryland to tax the business of the bank. The first holding rested on an interpretation of the last paragraph of Article I, Section 8 of the Constitution, which provides that in addition to the specific powers enumerated in that section, Congress may “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” Prior to the Constitution, Marshall recalled, the states had been bound together solely by the Articles of Confederation, which extended only limited powers to the Continental Congress that then served as the national legislature. By contrast, Marshall famously wrote, the Constitution provided the federal government with much broader powers: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” The second conclusion—that Maryland could not tax the operations of the national bank—rested on what Marshall characterized as the “great principle” that “the constitution and laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective States, and cannot be controlled by them.” Because a state tax had the power to destroy a federal institution—in that case, the bank of the United States—the state tax had to give way.

  The principle of federal supremacy also animated the Gibbons case. After receiving a federal license to engage in coastal trade, Thomas Gibbons sought to operate a steamboat service in the waters between Elizabethtown, New Jersey, and New York City. In an attempt to enforce monopoly privileges that the state had granted to Aaron Ogden, a New York court enjoined Gibbons’s activities. In his opinion for the Court, Marshall held that Gibbons’s federal license entitled him to an exemption from the New York laws. The opinion played an important role in the later development of rules that protect interstate commerce from burdens imposed by state laws even when Congress has not enacted any federal laws dealing specifically with the matter. (Cases that invalidate state laws that discriminate against out-of-state firms and thereby impede interstate commerce are often described as resting upon the “dormant” aspect of the commerce clause.)

  While not as well known as Marbury, McCulloch, and Gibbons, Marshall’s opinion in Barron ex rel. Tiernan v. Mayor of Baltimore (1833) merits mention because it provided the answer to an important question about the original meaning of the first eight amendments to the Constitution, commonly described as the Bill of Rights. Marshall held that those amendments limit the powers of the federal government but place no limitations on the powers of the state governments.

  Under that view, the Second Amendment’s protection of the right to keep and bear arms would prohibit Congress from interfering with a state’s regulation of its own militia but would allow the states complete freedom to regulate the possession and use of weapons. As a result, prior to the adoption of the Fourteenth Amendment, after the Civil War, individual citizens had to rely entirely on their own state constitutions as the sole source of protection against arbitrary state action.

  Our fifth chief justice, Roger Taney, was appointed to that office by President Andrew Jackson in 1836 and served until his death, in 1864. He was the author of the majority opinion in the Dred Scott case—Dred Scott v. Sandford (1857)—which held that a slave did not become free when taken into a free state, that Congress could not bar slavery in a territory, and that African Americans could not be citizens of the United States or—for constitutional purposes—of their own states. The only good thing that can be said about that case is that Abraham Lincoln’s criticism of it in his famous debates with Stephen Douglas received nationwide attention and helped get him elected president of the United States.

  In 1864, President Lincoln selected Salmon P. Chase, a former rival in the 1860 presidential election and later Lincoln’s secretary of the treasury, to become the sixth “Chief Justice of the Supreme Court of the United States.” Perhaps motivated by the hope that he would one day be elected president, Chase assumed the more imposing title of “Chief Justice of the United States,” a title that Congress began to use in subsequent legislation and that has been used by all of Chase’s successors.

  Like his immediate predecessor, Chase may be best known for his involvement in a dispute that arose out of the divisive legacy of slavery in the United States: He presided over the impeachment trial of President Andrew Johnson. In the wake of the Civil War and the assassination of President Lincoln, Johnson clashed repeatedly with the Republican majority in Congress, often over matters of race and Reconstruction. To protect the man Lincoln had appointed secretary of war (Edwin Stanton) from removal by Johnson, Congress passed the Tenure of Office Act, which required the president to obtain the consent of the Senate before making such a removal. When Johnson effectively defied Congress by removing Stanton without Senate consent, the House of Representatives impeached him, launching a Senate trial to determine whether he would be removed from office. There, Johnson contended that he had not technically violated the Tenure of Office Act because it protected officials only during the tenure of the president who appointed them. Once Lincoln died, Johnson argued, the act ceased to apply to Stanton. While Johnson failed to convince a majority of senators to take his side, his opponents could muster only thirty-five of the fifty-four available votes, one vote short of the “Concurrence of two thirds of the Members present” required for conviction by Article I, Section 3, paragraph 6 of the Constitution.

  After Chase died, in 1873, President Ulysses Grant considered several potential successors, vacillated for six months, and finally nominated the successful Ohio lawyer Morrison Waite to become the seventh chief. Waite’s fourteen-year tenure is notable for two quite different reasons: It illustrates the heavy burden that work on the Court then entailed. And it encompasses decisions severely limiting federal protections for newly freed slaves that the framers of the Fourteenth Amendment had sought to provide.

  While Waite was the chief, the Court decided 3,470 cases. Waite wrote 872 of the opinions disposing of those cases, a number that attests to the important role he played in efficiently discharging the Court’s responsibilities. He joined significant opinions written by colleagues construing the equal protection clause of the Fourteenth Amendment to prohibit the exclusion of African Americans from juries in criminal trials and protecting Chinese residents of San Francisco from discriminatory enforcement of an ordinance regulating laundries. But his own most significant opinion in the area—United States v. Cruikshank (1876)—can only be described as a disaster.

  In the infamous Colfax massacre in Louisiana on Easter Sunday 1873, dozens of blacks were slaughtered by a band of white men, one of whom was William Cruikshank. Because state authorities did not punish the men for murder or any other state offense, the federal government indicted them for violating a statute enacted by Congress in 1870 that prohibited two or more persons from banding together to deprive their victims of rights protected by the federal Constitution. According to the indictment the defendants had intentionally deprived their victims of several federal rights, including the right to peaceable assembly protected by the First Amendment, the right to keep and bear arms protected by the Second Amendment, and the right to life and liberty protected by the Fourteenth Amendment. Cruikshank and two of his confederates were convicted in federal court, but the Supreme Court reversed. As Waite reasoned for the Court, the First and Second Amendment rights that the murderers had been convicted of violating merely limited the powers of the federal government, and the Fourteenth Amendment merely limited the powers of the states; none of the amendments prohibited the individual acts committed by the defendants. The unfortunate decision paved the way for continued racial violence and the enactment of state laws throughout the South that deprived blacks of full citizenship for decades.<
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  Melville Fuller had been practicing law in Chicago for over thirty years when President Grover Cleveland selected him as our eighth chief. He initiated what I regard as an extremely important custom that all members of the Court still follow today. Before the beginning of an oral argument session, usually while donning his or her black robe, each justice greets every colleague with a handshake. That brief greeting confirms not only the personal friendships that all members of the Court share but also the more fundamental point that our common goals outweigh our individual differences.

  I do not know how many other courts follow that practice, though I can attest that such handshakes are not unique to the Supreme Court. I still remember the warmth of the greeting that Luther Swygert and Roger Kiley, two federal circuit judges appointed by a Democratic president, extended to their new Republican colleague before I went on the bench at the Seventh Circuit Court of Appeals in the fall of 1970 to hear my first oral argument. Past political differences become entirely irrelevant when a federal judge goes to work.

  While Fuller was the chief, Congress enacted the Judiciary Act of 1891, which led to a significant decrease in the workload of the Supreme Court. The statute created a new layer of intermediate appellate courts, known as circuit courts of appeals, that came to handle most of the appeals from decisions of federal trial courts. As an example, the statute authorized the Court of Appeals for the Seventh Circuit (where I served from 1970 to 1975) to hear appeals from each of the federal trial courts in Wisconsin, Illinois, and Indiana. As a consequence of that important change, many of the appeals that had previously gone directly to the Supreme Court were addressed first—and often only—by the circuit courts.

  Though its workload was diminished, the Court continued to hear four important categories of cases. First, while the statute eliminated the losing parties’ right to take an appeal to the Supreme Court in many federal cases, it gave them the right to file petitions for certiorari, often referred to as “certs.” As a matter of settled practice, if four justices are persuaded that a particular case merits further review and vote to grant cert, the Court will hear the case. Over the course of the twentieth century, these cases came to dominate the Supreme Court’s docket. Second, there is a category of cases—today relatively small—in which Congress has given the losing party a right to a direct Supreme Court review of federal trial court decisions. This so-called mandatory jurisdiction of the Court has changed from time to time since 1891. Cases challenging the constitutionality of campaign finance laws are an example. The appellant in such a case files a document known as a jurisdictional statement. Third, the Court has always had jurisdiction to review certain state supreme court decisions denying a litigant’s claim that his federal rights have been violated. Fourth, the Court’s original jurisdiction as defined by Article III—which has been most frequently invoked in controversies between states over their boundaries or their rights in interstate waters—was not affected by the 1891 act.

  Lochner v. New York (1905) was the most important case decided during Fuller’s tenure as chief, which lasted from 1888 until 1910. A majority of five justices held that a New York statute prohibiting the employment of bakers for more than ten hours a day or sixty hours a week was unconstitutional because it interfered with the liberty of the employer and his employees to contract with one another. The case is famous because there is virtually universal agreement among judges and scholars that it was incorrectly decided. More important, it is the case in which Justice Oliver Wendell Holmes wrote the most influential dissenting opinion in the Court’s history.

  The case raised a basic question about the meaning of the word liberty as it is used in the due process clause of the Fourteenth Amendment, which declares that no state shall “deprive any person of life, liberty, or property, without due process of law.” In a ten-page dissent joined by Justices Edward White and William Day, the first Justice John Harlan (grandfather of the second Justice John Harlan, whom President Dwight Eisenhower would appoint) explained in some detail why the statute was a reasonable regulation of liberty. Justice Holmes’s solo dissent contained just two paragraphs.

  In the first paragraph Holmes explained that “a constitution is not intended to embody a particular economic theory” and that the “accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.” The second paragraph focused on the meaning of the word liberty without mentioning the justifications for the New York statute that the other dissenters had discussed at length. He wrote: “I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.”

  I grappled with the meaning of Holmes’s dissent in one of the first cases that I confronted as a court of appeals judge: Fitzgerald v. Porter Memorial Hospital (1975). The case involved a claim by married couples that a hospital policy barring fathers from being present during the delivery of their babies deprived them of a substantive right protected by the Fourteenth Amendment. Before studying the case, I had assumed that the due process clause protects only a right to fair procedures before a state could deprive a citizen of life, liberty, or property—that that had been the real point of Holmes’s Lochner dissent. But a more careful study convinced me that Holmes did believe the clause protects some substantive rights that judges must identify in particular cases. The case therefore required us to decide whether the word liberty in the Fourteenth Amendment encompassed the substantive right that the parents had asserted. My good friend and colleague Judge Robert Sprecher was persuaded that it did. While I wrote the majority opinion concluding that the hospital regulation did not violate the Constitution, I was also convinced that the word liberty does protect some substantive rights that judges must identify in specific cases.

  Edward White was the first sitting justice to be elevated to higher office. A Civil War veteran who had fought in the Confederate army, he was appointed to the Court in 1894 by President Grover Cleveland and, after serving as an associate justice for sixteen years, named chief justice by President William Howard Taft in 1910. He served until his death in 1921 and was succeeded by the president who had appointed him chief.

  Despite having fought on opposite sides in the Civil War, White and Justice Holmes reportedly became warm friends with great respect for each other while on the Court. In 1911, during White’s first year as chief justice, Holmes joined what have arguably become White’s two most famous opinions for the Court: Standard Oil Co. v. United States and United States v. American Tobacco Co. In them, the Court held that the combinations of former competitors in holding companies formed, respectively, by the Standard Oil Company and the American Tobacco Company violated the Sherman antitrust law. In reaching that result, White discussed at length the so-called rule of reason—the rule stating that only acts that unreasonably restrain trade violate federal antitrust laws.

  As I explained in an opinion written shortly after I joined the Court, it was necessary to adopt such a rule because a literal reading of the text of the Sherman Act would have outlawed the entire body of private contract law. White’s opinions, coupled with an opinion by Charles Evans Hughes, a colleague of his who would later become the eleventh chief justice, broadly construed the commerce clause of the Constitution to authorize federal regulation of business activities that affect interstate commerce as well as activities that actually involve interstate transactions.

  As was true of his predecessor, the most significant opinion announced during White’s tenure as chief was written by another justice. It was Justice Peckham who authored the Court’s opinion in Ex parte Young (1908), which rejected Minnesota’s sovereign immunity defense to a su
it brought by a shareholder of a railroad claiming that newly enacted Minnesota statutes regulating railroad rates violated the federal Constitution. A federal district judge had entered an injunction against Young, the attorney general of Minnesota, forbidding him from enforcing the statutes. When the attorney general had nonetheless enforced the state law, the federal district judge had threatened to commit Young to federal custody for violating the injunction. Young then asked the U.S. Supreme Court to issue a writ of habeas corpus ending any such confinement. He argued that the Eleventh Amendment deprived the federal district court of jurisdiction to enjoin him from performing his official duties. The Court rejected his defense.

  In an opinion joined by all his colleagues except Justice Harlan, Justice Peckham reasoned that because an unconstitutional state law is “void,” a state official who attempts to enforce such a law is acting as an individual rather than as a state official. The state, he reasoned, had no power to grant such a person “any immunity from responsibility to the supreme authority of the United States.”

  The tenth chief justice, William Howard Taft, was one of the two top students in his class when he graduated from Yale in 1878. He became a member of the Yale Law School faculty after the end of his term as president of the United States. Before his election to the presidency, in 1908, he served as a federal judge on the Sixth Circuit Court of Appeals. In 1921, after being nominated by President Warren G. Harding, he became the first chief justice to have previously served as the judge of an inferior federal court. That fact is particularly remarkable because all but one of the current members of the Court are former federal circuit judges, and the one exception—Justice Kagan—had former federal judicial experience when she served as a law clerk to Justice Thurgood Marshall, in 1987. (She had also previously been solicitor general—often referred to as the tenth Supreme Court justice—and had been nominated, though not confirmed, for the seat on the U.S. Court of Appeals for the D.C. Circuit that future Chief Justice John Roberts came to occupy.)