UCLA law professor Stuart Banner writes in this 2024 book:
* The most partisan justice of all was Samuel Chase. Appointed to the Court in 1796 after a long career as a legislator and a judge in Maryland, Chase was an easily angered man who made enemies everywhere he went. “I have no personal acquaintance with Mr. Chase,” the former senator Samuel Johnston remarked to Iredell shortly after Chase’s appointment, “but am not impressed with a very favorable opinion of his moral Character whatever his professional Abilities may be.” 61 Once on the Court, Chase continued to stir up controversy. He gave campaign speeches for John Adams in the summer of 1800. He presided over the celebrated 1799 treason trial of John Fries in such a partisan manner that Fries’s defense attorneys quit in disgust. A similar episode took place the following year at the sedition trial of the pamphleteer James Callender, when Chase refused to let the sole defense witness testify and chastised the defense lawyers so constantly that they refused to continue. In another case, when a grand jury declined to indict a Delaware newspaper publisher for sedition, Chase refused to discharge the grand jurors until they changed their minds. In a widely reproduced grand jury charge in Baltimore in 1803, Chase fulminated against Jefferson and the Republicans. “Our Republican Constitution will sink into a mobocracy,” he declared. “Peace and order, freedom and property, shall be destroyed.” The Republicans finally had enough. In 1804 the House of Representatives, which was more than 70% Republican, voted to impeach Chase.
Chase’s trial in the Senate was a sensation. As one contemporary magazine put it, “no event of a domestick nature has, since the adoption of the federal constitution, excited in the United States a more universal interest, than the impeachment of Judge Chase.” The trial took place in early 1805, while the Court was in session. Because the Supreme Court still shared the Capitol with Congress, Chase walked back and forth between the two chambers, a justice in one room and a defendant in the other. 62 The Republicans held more than two – thirds of the seats in the Senate, so a party – line vote would have been enough to convict Chase, but several Republicans voted not guilty, so Chase was acquitted.
The Federalists breathed a sigh of relief, because the successful impeachment of Chase might well have led to more impeachments of Federalist justices. “The acquittal of Judge Chase is considered by the federalists here, as a matter of great triumph,” Justice William Paterson’s son reported to him from New York. “It was the opinion of some of them, that you would have been the next victim, to the intolerance and persecution of the dominant party.” 63 The trial had a sobering effect on Chase himself, who uncharacteristically stayed out of controversy for the rest of his career. It had a similar effect on the other justices, who likewise toned down the partisanship of their jury charges. The episode also had an effect on Congress, in that Samuel Chase remains the only Supreme Court justice ever to be impeached. In the two centuries since, members of Congress have often been displeased with the justices, but, except in a few instances, Congress has used methods other than impeachment to try to bring them into line. All concerned seem to have recognized the chaos that would result if the majority party in Congress routinely impeached justices of the other party.* The Court likewise upheld a considerable amount of regulation that was alleged to infringe liberty in a more personal sense. Just two months before Lochner, for example, the Court sounded positively collectivist in rejecting the claim of anti-vaccine activists that the Constitution barred the states from enacting compulsory vaccination laws. “There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members,” the Court declared in Jacobson v. Massachusetts (1905).
* People today sometimes think of the early nineteenth century as a golden age, before “politics” corrupted the Court. Such a view would have seemed laughable to people at the time. They knew as well as we do that the justices’ policy views profoundly affected their decisions in politically inflected cases. If anything, they would have known it even more, because so many of the justices came to the Court after years in Congress, in the cabinet, or in state legislatures, and had plainly been appointed because of their political opinions rather than their skill at judging. Whether contemporaries agreed or disagreed with a decision, they frankly discussed the politics of the arguments on both sides. When a decision was contrary to the policy views of members of Congress, members were not shy about proposing legislation to curtail the Court’s authority.
The Court’s decisions were also sharply criticized in the press, to a degree that could make the justices uncomfortable. “I had no doubt when the opinion was given it would be attacked, not by reasoning, for that I did not fear, but by abuse,” Benjamin Curtis complained after one of his opinions was published. “No doubt, the members of the judiciary department of the government must make up their minds to being treated hereafter by the press with very little deference.” On another occasion he groused that the position of the justices “exposes them to attack, such as no honest judiciary, in any country within my knowledge, have been subject to.” The press, Curtis believed, made “the grossest charges against those who administer the judicial power.” 50 There was never a time when the Court’s decisions were understood as based purely on law as distinct from politics. In the early nineteenth century, people understood that the two were always intertwined.
But it would be equally wrong to conclude that the justices’ political views were the only determinants of their decisions in politically charged cases. The law was malleable, but not completely so. Professional norms defining what counted as a reasonable argument were powerful constraints — so powerful that normally they did not need to be stated. No justice, for example, could have written an opinion denying the federal government’s authority over interstate commerce, or forbidding the states from regulating transactions within their borders, without provoking the derision of his colleagues and of the profession as a whole. These professional norms were social conventions one internalized during a legal career. They expressed the bar’s prevailing view of the meaning of the constitutional provisions the Court was called upon to interpret. When the Court decided politically charged cases, justices had some room to implement their policy preferences, but only within a range of options bounded by these norms. Then as now, the Court wielded extraordinary power, but within a tightly constrained space.In the twentieth century, some of the Supreme Court’s most famous cases would involve the right to equal treatment regardless of race. In the early nineteenth century, by contrast, race discrimination was legal and pervasive. The Court decided several important cases involving the rights of African Americans and American Indians before the Civil War, but these cases did not challenge the subordinate position of these groups. Litigants did not argue, for example, that slavery was unconstitutional or that members of minority groups were entitled to be treated like white people. Arguments like these would have been doomed to failure at the time, so they were not made in the Supreme Court. Rather, the Court’s cases involving slaves and Indians tended to implicate questions of federalism like those we saw in in the previous chapter. In cases involving Indian land, for instance, the issue was not whether the Indians could halt white settlement, but rather which level of government, federal or state, would take the Indians’ land from them. In cases involving fugitive slaves, the question was not whether black people had the same right to freedom as white people, but whether federal law regulating the recapture of escaped slaves took precedence over state law. Discrimination was such an ordinary part of American life that the Court’s cases in this area, important as they were, concerned the details of how discrimination would be implemented, not the lawfulness of discrimination itself.
In most of the cases in which the Court adjudicated the rights of American Indians, there were no Indians before the Court. These cases typically involved white litigants on both sides, who claimed rights for Indians only to the extent such rights would advance their own arguments. If rights for Indians would not help either side, no one asserted them.
* In The Prize Cases (1863), the Court rejected a challenge to the Union blockade of southern ports. 10 The vote was 5 – 4 (the Court had not yet been expanded to ten justices), with the three Lincoln appointees supporting the administration, joined by the Democrats James Moore Wayne and Robert Grier. The four dissenters were all Democrats — Roger Taney, John Catron, Samuel Nelson, and Nathan Clifford. In The Prize Cases , the Court confronted a fundamental question about the legal nature of the Civil War. Lincoln never asked Congress for a formal declaration of war because a declaration of war would have implicitly recognized the Confederacy as a separate country. The administration’s position was that secession was impossible and that the states claiming to have seceded were still part of the Union. To fight effectively, however, the Union had to do all the things that nations do when they are at war, such as blockading ports and capturing ships. In the absence of a war, most of these activities would have been clearly beyond the authority of the federal government, which had no power in peacetime, for example, to seize property or to blockade ports. The onset of the Civil War created a legal dilemma for the Lincoln administration, which tried to fight a war without formally acknowledging the existence of one.
This dilemma quickly gave rise to litigation. In April 1861, shortly after the Confederate attack on Fort Sumter marked the beginning of fighting, Lincoln proclaimed a blockade of southern ports. In July, Congress prohibited all trade between the Union and the Confederacy. Union vessels began capturing ships that violated these provisions, including the four merchant ships involved in The Prize Cases , which were captured in May, June, and July. The owners of the ships argued that the captures were unlawful because there was no war as a legal matter. Everyone agreed that the ships could not be captured unless a state of war existed. The Court thus confronted a very unusual kind of legal question: When, precisely, did the Civil War begin? Had it even begun at all? Could the Union conduct a war without formally recognizing that it was doing so?
Robert Grier’s majority opinion treated the existence of war as a factual question. “To legitimate the capture of a neutral vessel or property on the high seas, a war must exist de facto ,” he began. “Let us enquire whether, at the time this blockade was instituted, a state of war existed.” He determined that it did. “As a civil war is never publicly proclaimed, eo nomine [by that name], against insurgents, its actual existence is a fact in our domestic history which the Court is bound to notice and to know,” Grier reasoned. “When the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the Courts of Justice cannot be kept open, civil war exists and hostilities may be prosecuted on the same footing as if those opposing the Government were foreign enemies invading the land.” The Court held that a state of war existed as soon as the fighting began. “This greatest of civil wars was not gradually developed by popular commotion, tumultuous assemblies, or local unorganized insurrections,” Grier recalled. “However long may have been its previous conception, it nevertheless sprung forth suddenly from the parent brain, a Minerva in the full panoply of war . The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name” by formally declaring war. Nor was the Union required to recognize the Confederacy as a country before a state of war could exist. “It is not the less a civil war, with belligerent parties in hostile array, because it may be called an ‘insurrection’ by one side, and the insurgents be considered as rebels or traitors,” Grier explained. “It is not necessary that the independence of the revolted province or State be acknowledged in order to constitute it a party belligerent in a war according to the law of nations.” When a war existed in actual fact, it existed as a matter of law. The Court would not “affect a technical ignorance of the existence of a war, which all the world acknowledges to be the greatest civil war known in the history of the human race, and thus cripple the arm of the Government and paralyze its power by subtle definitions and ingenious sophisms.” The five – justice majority upheld the captures of the ships as lawful, on the ground that a state of war existed in fact at the time they were captured. 11
Samuel Nelson’s dissent, by contrast, began with the premise that the legality of the captures depended on whether a war existed as a legal matter, not on whether it existed in fact.* The United States did not acquire the rights of a belligerent simply by fighting. First it had to create a state of war by formally recognizing the existence of one. Nelson concluded that Congress’s act of July 1861, which authorized Lincoln to prohibit trade with the Confederacy, constituted such a formal recognition of a state of war. In the view of the four dissenters, captures after that date were lawful, but captures beforehand, including those of the ships before the Court, were not. 12
The mere existence of The Prize Cases underscored the remarkable power wielded by the Supreme Court. In any other nation, it would have been unthinkable for a court to assume the responsibility of deciding whether the nation’s government would be allowed to wage war. Yet everyone involved in the case seems to have assumed that the Court had the authority to decide the question.* the Court held in Buck v. Bell (1927) that the Due Process Clause did not prevent the state from forcibly sterilizing people determined to be “feeble – minded.” Like many states at the time, Virginia had a eugenic program providing for the sterilization of the mentally disabled. “Carrie Buck is a feeble – minded white woman” who had been committed to a state institution, Holmes explained in his opinion. “She is the daughter of a feeble – minded mother in the same institution, and the mother of an illegitimate feeble – minded child.” It took him just a few sentences to dismiss the argument that the liberty protected by the Due Process Clause included a right not to be sterilized against one’s will. “We have seen more than once that the public welfare may call upon the best citizens for their lives,” Holmes declared, a few years after the First World War. “It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence.” Holmes himself supported measures like the one at issue in Buck . As his biographer remarks, eugenics was the rare “legislative ‘reform’ about which Holmes did not have his customary skepticism.” This view came through clearly in his short opinion for the Court. “It is better for all the world,” he insisted, “if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.” He concluded with what has become one of the most infamous lines in any Supreme Court opinion: “Three generations of imbeciles are enough.”
* As the Los Angeles Times editorialized [in 1942], “the theory that an alien invader has civil rights is absurd on its face.”
* Before the United States entered the war, in Minersville School District v. Gobitis (1940), the justices voted 8 – 1 in the government’s favor. The case was brought by a family belonging to the Jehovah’s Witnesses, a Christian denomination whose beliefs proscribed saluting the flag. Felix Frankfurter’s majority opinion exhibited little sympathy for them. “National unity is the basis of national security,” Frankfurter declared. “The flag is the symbol of our national unity, transcending all internal differences.” He concluded that if the government thought unity could best be achieved by a compulsory flag salute, the courts had no business saying otherwise.
* Furman v. Georgia [invalidating the death penalty] would be the farthest the Court would go in reinventing criminal procedure. The backlash was immediate. The day after Furman was decided, legislators in five states announced they would introduce bills to bring back the death penalty. Within a few years, thirty – five states and the federal government had new statutes authorizing capital punishment. Popular support for the death penalty skyrocketed. Fifty percent of respondents favored capital punishment in a Gallup poll conducted a few months before Furman was decided. A few months after Furman , the figure had grown to 57%, and within a few years it reached 65%. In every part of the country, the death penalty became more popular than it had been in many years, as people who had not given much thought to capital punishment now decided that the Supreme Court was wrong to abolish it.
* The right of privacy in matters of childbirth was a new constitutional right, but so were most of the constitutional rights the Court had recognized over the past two decades, such as the right to attend integrated schools, the right to advocate communism, the right to an attorney during questioning by the police, or the right to a vote that was worth as much as the votes of the people in the next county. When Roe v. Wade arrived at the Court, it looked like it would be just another in a long line of cases applying recently established rights in new contexts. Indeed, the district court in which the pseudonymous Jane Roe filed her suit had already anticipated this outcome. The district court relied on Griswold to rule that Roe was entitled to obtain an abortion because the Texas law prohibiting abortion infringed her constitutional right “to choose whether to have children.” In Roe ’s companion case, Doe v. Bolton , another district court likewise invalidated parts of Georgia’s abortion law on the ground that Griswold established “a right to privacy which apparently is also broad enough to include the decision to abort a pregnancy.” 62 To the extent Roe would involve any change in the law, the heavy lifting seemed to have already been done.
Unlike contraception, however, abortion was still illegal in most states in most circumstances. And while some of these state laws were quite old, others were not.
