A Foot In The Door


Despite this and other reverses in the lower courts, the business interests were confident of ultimate victory. The assurances of their high-priced legal talent’ were soothing, and the corporations appealed their cases. In 1873 and 1874 Munn v. Illinois and seven railroad cases, which became known as the Granger Railroad Cases, all made their way to the United States Supreme Court, and, so the railroad leaders felt, toward a decision favorable to business.

Their confidence, however, was grossly misplaced. The Court of the 1870’s did not regard itself as the judicial handmaiden to entrepreneurial capitalism. Its Chief Justice, Morrison Remick Waite, was a moderate whose deep faith in representative democracy made him tolerant of legislative experimentation. His attitude had been shaped in frontier Ohio, where he had settled in 1838. His politics were solidly Republican, and his experiences in a close-knit community where personal honesty and character mattered as much as business acumen made Waite a typical member of the ante-bellum class of professional and mercantile men to whom wealth was not an end in itself.

Ironically, this man of complete integrity was appointed to the Chief Justiceship through the tawdry maneuverings of the Grant era. When a vacancy occurred in the office in 1873, President Grant tried to please his malodorous entourage with three dubious candidates, but was forced by public outcry to withdraw each in turn. The muddled President then looked for an honest man and found Waite, whose obscure respectability assured his confirmation. An unassuming middle-aged lawyer of medium height, his face clothed in one of those ample beards that were the style of his day, Waite proved himself a first-rate judge and an excellent Chief Justice. While his intelligence was keen, his most valuable assets were an amiable personality and a knack for leading men. “Policy” and “diplomacy” were his self-proclaimed guidelines.

These qualities served him well. Waite’s associates were men of uncommon ability, but their vanities and ambitions could easily have mired the Court in a morass of personal conflicts. Unquestionably the best mind and the most learned jurist among them was Joseph P. Bradley. A self-made man, Bradley enjoyed a successful career representing some of New Jersey’s leading railroads until appointed to the Court in 1870 by President Grant. Once on the bench, he showed marked independence toward the corporate interests he had formerly defended, frequently upholding economic regulation. Another Court giant was Samuel Freeman Miller. Beginning as a poor Kentucky farm boy, Miller had had two careers, one as a rural doctor and, after studying law on his own, another as a country lawyer. Appointed by Lincoln in 1862, Miller habitually stressed the importance of personal liberties and reflected a hostility to corporate and financial wealth. Blunt, self-confident, and prone to vanity, he was a dominant figure on the Court after the Civil War.

Ward Hunt, Noah H. Swayne, Nathan Clifford, and David Davis, four of the tribunal’s lesser lights, generally followed Waite’s lead in economic regulation cases. Like Waite, all of them had grown to maturity in Jacksonian America, and they retained a democratic faith that made them favorably disposed to laws passed by the people’s representatives.

The remaining two associate justices were exceptions. William Strong was a conservative, sympathetic to corporation views. Stephen J. Field, whose brother Cyrus laid the Atlantic cable, was a transplanted New Englander who prided himself on being a rugged Californian. Through a judicial service of nearly thirty-five years Field outspokenly defended the claims of American business.

Judicial processes are rarely speedy, and the Court of the seventies moved with majestic slowness. Overburdened with a lengthy docket, it required an average of three years to announce decisions. The first Granger case to reach the Court, a challenge to Minnesota’s rate law, arrived in October, 1873, and the Illinois, Iowa, and Wisconsin cases were docketed the next year. Oral arguments occupied two sessions during the 1875 term; the Granger Railroad Cases were heard in October, 1875, and Munn v. Illinois , the elevator case, was argued early in 1876.

For the oral arguments the business interests marshalled the elite of the nation’s bar. William M. Evarts, Orville H. Browning, David Dudley Field (another brother of Justice Field’s), and Frederick T. Frelinghuysen were among the assembled legal talent. They strongly argued the three contentions advanced by their side in the lower courts: confiscation of property, impairment of contract obligations, and interference with interstate commerce. To these constitutional arguments they added that rate regulation was almost unheard of in America, and that the Granger laws were “the beginning of the operations of the [Paris] commune in the legislation of this country.” In reply, the attorneys for the state governments involved defended the laws as reasonable measures to protect the general welfare against the exactions of private, uncurbed monopolies whose business had in effect become public.