YANKEE FROM GEORGIA - A Search For Justice Woods

THOMAS E. BAYNES, Jr.

They also serve who only stand and wait–wait for history to do them justice. (A bad combination of Milton and a pun.) With this article, the YEARBOOK undertakes to focus from time to time on the lesser known members of the Court, particularly in the first century of its history. Justice William B. Woods is a good prototype to begin this series.–ED.

* * * * *

The history of Southern Justices on the Supreme Court suggests some unique twists of fate. Three of the Justices were cousins, the two Lamars, Joseph Rucker Lamar[1] and L. 0. C. Lamar[2] were related to Justice John A. Campbell. Each was appointed from a different Southern State. However, L. Q. C. Lamar is remembered more for his Senatorial career than his tenure on the Court.[3]

But who was Woods? A search of the better known texts on the Court mentions almost nothing. Biographical data is scant.[7] The whereabouts of his personal papers are unknown. There is no written biography of his tenure on the Court. These factors alone should deter anyone from trying to write on this obscure Justice. Historians of the Court barely recognized his existence,[8] but those who did characterized him as mediocre.[9] Yet, more than their opinions was the 1970 poll[11] on Supreme Court Justices by a group of law professors. Woods was rated below average.

How could that be? There isn't sufficient evidence to support anything except his appointment, a few cases, and his death. Further, how could all those Southerners, like Campbell, and later L.Q.C. Lamar support someone like Woods who appeared to be so patently unpalatable to men of the Confederacy? My Southern intuition said that if the South was behind Wood's nomination, then the historians and law professors must have been mistaken.

Woods was an Ohioian.[11] Born in a small central Ohio town, he went to Western Reserve finishing at Yale with honors in 1845. Returning to his hometown he studied law with his future law partner and was admitted to the Bar in 1847.

In the latter part of the 1850's, Woods took an active part in politics, an interest he would avoid after the war. While there is some evidence he first chartered his political fortunes as a Whig, later activities were as a Democrat. First as mayor of his town, then as a member of the Ohio legislature, he was elected speaker of the assembly during his second term. In 1859, the Republicans became the majority party. Woods, reelected, was known for his vigorous opposition to the Lincoln Administration. An often told anecdote concerned his adamant resistance to a loan bill which was to finance Ohio's home defense in the event of war with the South. However, when the secession was definite Woods was the one that convinced the opponents that the bill must be passed.

With the outbreak of the war, Woods joined the Seventy Six Ohio Regiment as a lieutenant colonel. Involved in numerous actions, he quickly rose to the rank of brigadier general. Later, Generals Grant, Logan and Sherman joined in recommending him for breveted major general. From Shiloh to Vicksburg, then through Georgia with Sherman, his participation concluded with the Grand Review of the Union Troops in Washington after the surrender of the Southern forces. Ordered to Mobile, Woods was mustered out of the Army in 1866, Woods remained in Alabama becoming involved in cotton production and an iron foundry. In 1868, he was elected Chancellor in a south Alabama Circuit, resigning that position within two years to accept the appointment of United States Circuit Judge.

The 1869 Appointment

In 1866, Congress succeeded in finally thwarting any possibility of President Johnson making an appointment to the Supreme Court. Between Chief Justice Chase's willingness to trade Court seats for judicial salaries[12] and the possibility that an intermediate appellate court would be established, Congress voted to reduce Court membership to seven.[13] During Chief Justice Taney's twilight term, there were ten sitting justices. In 1867, Justice Catron died and then Justice Wayne. President Johnson, unable to fill the vacancies saw the court dwindle to eight.

With the election of President Grant, Congress was once again willing to consider judicial reorganization. While numerous ideas circulated, the final result was an increase in the Court membership to nine and the creation of nine circuit judgeships.[14]

'The bill creating the circuit courts was enacted in April, 1869 but the Senate delayed implementation until December. Justice Miller suggests the delay was strategic. " the provision in that bill postponing its operation until next December was inserted by the Senate, because it was believed that the various Congressional delegations in the House had the circuit judges all arranged; and it was to break up this arrangement, and to give the President an opportunity to make his selection for the offices in the absence of the members of Congress, that it was done."[15]

Although Grant is not renowned for his ability to make able judicial appointments, in the case of the new circuit judges, he was saved by his Attorney General, Ebenezer Hoar,[16] who might have been one of the original proponents of merit judicial selection. Hoar's idea of judicial temperment was to bring to the federal judiciary men of the highest talent and rectitude.[17] "Nearly every Senator had a candidate of his own choice for the Circuit Court but in almost every instance the President took the Attorney General's advice."[18] In the instances where Grant balked he was later forced to withdraw his candidate's name.

There is unfortunately little information on why Woods was chosen. At the time of his selection, Woods had some judicial experience as a chancery judge. Having joined the Republican Party, he now had no political handicaps and his service with Grant during the war was definitely an asset. Lastly, and probably most significant was Woods' connection with Senator Willard Warner, a Republican Carpetbagger from Alabama. He also had served with Grant and was a strong supporter of the administration. Woods had married Warner's sister.

But virtue in judicial selection was not to be entirely rewarded. On the same day the Senate Judiciary Committee approved Hoar's package of circuit judgeships (Woods included) the Senate rejected Grant's nomination of Hoar for a seat on the Supreme Court.[19] Democrats and Southerners (except Warner) voted against Hoar rejecting him by a vote of 33 to 24. Later, writing to Justice Bradley, Hoar said, "There is no service which I have been able to render to the country which I look back upon with such entire satisfaction as upon the share which I have had in filling judicial positions."[20]

Woods served as the Fifth Circuit Judge for eleven years while also reporting the 'Circuit Court cases. Living first in Alabama, he finally settled in Atlanta. His two most important cases while sitting in the Fifth Circuit were the Slaughter House Cases and United States v. Cruikshank. In both he sat with Justice Bradley, disagreeing with his judgment in the latter. In the Slaughter House Cases, Ex-Justice Campbell argued for Louisiana–probably one of the few times, that a Justice, a former Justice and a future Justice were involved in the same litigation.

Woods understood his position within the Southern environment. His philosophy was clear. He was going "to administer the law as to encourage the sentiment that the courts of the United States were not courts of a foreign jurisdiction, but courts which belonged to the people of the district in which they were held, in common with all the people of the United States, not organized to oppress but to protect them in their rights and mete out even-handed justice to all classes."

1877 and The Supreme Court

In 1877, there was a new President. After a traumatic election dispute climaxed by an election commission decision and substantial concessions being made to the South and its Congressmen, Rutherford B. Hayes was declared the winner almost on the eve of the inauguration.[21] Immediately, he was faced with filling the vacancy on the Supreme Court. Justice David Davis had won a seat in the United States Senate and resigned his position the day after Hayes took office (so calculated by Davis to prevent Grant from making a last-minute appointment).[22]

While there is incomplete evidence as to Hayes' actual commitment to the South as regards filling Supreme Court vacancies, it appears a person acceptable to the South was anticipated. "The result was that in 1877 there was for the first time since the Civil War an actual contest between a Southern and a border state for a Supreme Court seat. In the course of Hayes' administration both sides won."[23]

At least 24 names (only one Northerner) were presented for the position vacated by Davis. John Marshall Harlan of Kentucky, soon became the front runner and ultimately received the nod.[24] Yet, Judge Woods' loss of this first opportunity was the prologue to his future appointment. Justice Miller gives us some initial commentary on Woods' position in this first vacancy test. Justice Miller was continually promoting his brother-in-law, William Ballinger, for a position on the Court. Ballinger was rather reluctant to have his name advanced, but he did have his favorites. In a letter just prior to Davis' resignation Ballinger suggested that Ex-Justice John Campbell might be someone to reappoint to the Court. Woods was mentioned as a second choice. "Told him (Miller) if a Republican from the Southern Bench was to be appointed Woods would meet with strong approval here."[25]

Miller thought Campbell was too old and since he, Waite and Field, all in their sixties, were the only members of the court who weren't aged and infirm there did not appear to be any advantage in adding another antiquarian to the Court. Campbell was 75. However, the gravaman of Miller's complaint was that he could not forgive Campbell for leaving the Court at the outbreak of the War. "I could forgive him sooner if like Toombs and that class of men the Confederate cause had commanded his convictions. But they did not."[26]

Campbell was not interested in going back on the Court. Having renewed an extensive practise after the war, he had become a leading member of the Southern bar. He practised before Woods quite often, the most notable being the Slaughter House Cases[27] in the Circuit Court. Along with Federal District Judge Billings, Campbell became one of Woods' campaign managers. He enlisted for Woods the support the most notable son of the Confederacy then serving in Congress, Lucius Quintus Cincinnatus Lamar. Writing to Billings, Campbell quotes from a letter from Senator Lamar "it will give me pleasure to do what I can to promote your views in regard to the appointment of Judge Woods to the Supreme Court Bench. I will state to the President your favorable estimate of his qualifications and express the opinion that his appointment would be more acceptable to our people than any of those most likely to get the position."[28]

If one were to count written endorsements, Campbell and Billings were able to muster more support for Woods than there was for Harlan. There were 81 petitions of endorsement filed with the Attorney General.[29] Woods had the backing of all the District Judges, the local Republican parties and some members of the National Republican party. Southern politicians, carpetbaggers and Confederate veterans were his supporters. Even organizations, which one would have assumed held the greatest antipathy for Woods for his participation in the destruction of the South sought his appointment.[30]

Besides Senator Lamar and Senator Eustis of Louisiana there was John A. Morgan, the new Democratic Senator from Alabama. "I would prefer a man of my own political views", wrote Morgan to the Attorney General, "if such an appointment could be properly made, but I am quite content to assist as far as I may in confiding this important power to Judge Woods, feeling satisfied that he should be appointed he will use it only in accordance with a strict sense of duty."[31] Two days later, Morgan forwarded a letter from the Mobile Bar Association to the Secretary of the Treasury, John Sherman (the General's brother). Morgan mentioned Sherman as a friend of Woods who was in the best position to get Hayes' attention on the affirmative letter to Woods' appointment.

Here is probably the place to speculate on Woods' support in Washington. Unlike the numerous letters written by Harlan to various members of the administration, there are none known from Woods. Woods had the backing of many Southern Congressmen, but his Ohio and Grant connections are also notable. James A. Garfield, then an Ohio Congressman, outwardly endorsed Woods. Garfield's own diary shows he spoke with Woods about federal appointments in June, 1877. Later, Garfield was to write Sherman of the support he found for Woods when visiting Alabama.[32]

Secretary Sherman (Ohio and brother of Woods' Commanding General) appears to have been another supporter. Garfield, Billings and Morgan all forwarded letters through the Secretary noting the friendship for Woods. Sherman was a cousin of Ebenezer and George Hoar, the former being the Attorney General who picked Woods for the Circuit Court. George Hoar was a United States Senator from Massachusetts. Hoar's senatorial colleague, H. L. Dawes, also supported Woods. William A. Evarts, cousin to both Sherman and Hoar, had been Attorney General under Grant and was now Hayes' Secretary of State. While there is no personal evidence of an endorsement by Evarts, his lifelong law partner, C. E. Butler, using the firm's name, endorsed Woods in a letter to the President.

The "Ohio connection" includes President Hayes, Chief Justice Waite, Secretary Sherman, Associate Justice Swayne, Senator Matthews (later appointed to the Court by Hayes) and Congressman Garfield (who was joined by four other Ohio Congressmen in his support for Woods). Only in the case of Matthews do we find no evidence of interest in the Woods appointment.

Harlan was appointed. He had been a staunch supporter of Hayes from the Convention through the Election.[33] Confirmation, a hard fight in the Senate, came after six weeks in debate.

1880–The Second Time Around

On December 8, 1880, the Washington Evening Star[34] carried the story that Associate Justice Strong had written his letter of resignation which would be forwarded to the President shortly. Although the article suggested Attorney General Devens would most likely fill the vacancy, the more sophisticated Court watcher would have been more interested in the news that the Chief Justice was reassigning Justice Bradley from the southern Fifth Circuit to the northern Third Circuit. The vacancy thus took on more of a Southern flavor than one would anticipate could be filled by Devens of Massachusetts.

The next day, the Star made a more accurate prediction.[35] Justice Swayne would re-sign and Senator Stanley Matthews would be appointed his successor. This situation would later have relevance to the Woods appointment.

On the 14th of December, Strong tendered his resignation. The newspapers still had no idea who would be selected. While the papers might have been in the dark, the Justices may well have been parties to the behind the scene efforts in the nomination. Justice Bradley had sat with Woods on the Fifth Circuit for a number of years. They had formulated the Circuit Court's opinion in the Slaughter House Cases. When Justice Davis' successor was still in dispute, Bradley had told Justice Miller of his preference for Woods.[36] Secondary sources tell us that Chief Justice Waite was recommending Woods' appointment to the President.[37]

One could well assume that Justice Strong had some idea of the identity of his successor. Justice Miller wrote as early as two weeks before the news story on the Strong resignation that the President already favored Woods. Justice Swayne was reported as even going further. "….Swayne who is for some reason fond of Woods is trying to make his resignation (desired by the President for Matthews' sake) dependent on the nomination of Woods. This is a nice little plan but complex and may fail of carrying out."[38]

While appointments to the Court were no longer required to be made from the Circuit where the departing Justice was assigned, there appeared to be some preference for the arrangement. The Chief Justice's transfer of Justice Bradley facilitated the opening in the Fifth Circuit of a vacancy. Thus, the preference could be retained and Hayes was given the opportunity to appoint an acceptable "Southern." "Although Woods–whose appointment was recommended strongly by the Chief Justice–had lingering and fond attachments to the North his professional loyalities were to the South. Thus, he was precisely the kind of candidate Hayes sought as a conciliation, one who could help bind sectional wounds."[39]

The day after Strong resigned, Hayes sent Judge Woods' nomination to the Senate. It was immediately forwarded to the Judiciary Committee.[40] Within a few days of the nomination, the papers in Washington, New York and Atlanta reported the South's support for the nomination.[41] The same organizations that had backed Woods in 1877 were writing and telegraphing their Senators. In a poll conducted by the Atlanta Daily Constitution, the leading members of the Georgia Bar highly endorsed Woods for the Court seat.[42] The New York Times editorial called for confirmation.[43] All papers were predicting it.

Five days after the nomination went to the Senate, the five Democrats and four Republicans on the Judiciary Committee reported favorably on the nomination.[44] Although individual votes in Committee are not known, the membership vote on the floor would show all yeas with two absent members. The Senate then took a day in Executive Session to debate the appointment.

When the nomination was first announced, the Star[45] had reported that Southern Senators felt a fierce indignation that Woods, an Ohio native, had been 'characterized as a Georgia appointee. The paper's conclusion was misplaced. In the main, the Southern Senators were with Woods. What argument there was had been diagnosed by Justice Miller even before the appointment. Justice Miller anticipated that Hayes might have to withdraw Woods' name because "Woods and Matthews will 'both be regarded as Ohio appointments and that Chase and Waite and Swayne and Woods and Matthews are too many Judges from Ohio in a few years with Harlan from the same circuit."[46]

This issue was raised during the debates. Although not a specious argument, it was only a reflection of the frustration of the Democrats, who had to watch a Lame Duck Republican President (from Ohio) appoint another Republican Justice with another appointment on the horizon. There had not been a Democratic Justice since Clifford's appointment in 1858, and Clifford was now ill, as was another Justice. The new Republican President-elect Garfield would be able to foreclose any chance of filling those vacancies with a Democrat.

The Ohio argument was overcome by the strong vote of confidence by the Southern Senators. The opposition realized that if the Senate took no action, Woods' friend Garfield might just resubmit his name. It was Christmas, and the Democrats decided to save their fight for Matthews. Woods was confirmed by a vote of 39 to 8.[47]

Interesting enough, the Senate's Democratic majority did not appear for the vote. Twenty-four Republicans and twenty-three Democratic Senators voted, with the eight negative votes being all Democrats. Earlier supporters like Lamar, in a rare appearance in the Senate, and Morgan voted yea. The Georgia Senators and most of the Southern Senators followed suit. Only the Senators from North Carolina voted against confirmation, with Florida and Louisiana splitting their votes. The Virginia Senators were absent. The Ohio Senators, both Democrats, did not appear either. Ex-Justice Davis and General Logan of Illinois were among the yeas as were the old supporters, Dawes and Hoar of Massachusetts.

On Christmas Day, Woods wrote the Chief Justice, "I thank you heartily for your telegram of congratulations and of welcome to the great tribunal over which you preside. "… I have several cases, however, which have been argued before the circuit court, which I must dispose of before I leave…"[48]

The Chief Justice's reaction to Woods' confirmation is unclear. Waite initially wrote the President of his enthusiasm on January 2. Two days later, in a letter to arrange for Woods to obtain his commission from Hayes, the Chief Justice wrote, "looking the ground all over, and judging him from such light as I have, there is little doubt that you have made the best possible selection under the circumstances."[49] Future information may suggest the implications of Waite's apparent commiseratory statement in light of his previous support for the appointment.

 

The Short Tenure: 1881-1887

In the January 2nd letter of glad tidings at Woods' confirmation, Waite wrote Hayes, "We shall give Woods a hearty welcome and he will find when he gets here that it will not be necessary for him to leave off any of his old inclinations to work. We are wonderfully overcrowded."[50]

When Woods took his seat, the October Term, 1880 was almost half completed. The workload of which the Chief Justice had spoken to the President was definitely awaiting Justice Woods. 795 cases from the previous term welcomed the Justices at the beginning of the 1880 term; 417 new cases were docketed during the term creating a total caseload of 1,212.

In addition, the Justices were shorthanded. Justice Hunt had not sat since the October term of 1878 and would not sit again. Justice Clifford was also incapacitated.[51] Neither would vacate his seat for another two years. Justice Swayne retired the same month as Woods replaced Justice Strong. Thus Woods joined a five-man court with a backlog triple its annual disposition rate. Some relief would come with the appointment of Matthews in April. Yet, the Court would not be up to full strength until late in the 1883 Term with the appointment of Gray and Blatchford. The caseload problem would not disappear until the 1890's with the establishment of the Circuit Courts of Appeal.[52]

Although some have suggested that Justice Woods wrote over 200 opinions while on the Court,[53] a review of the United States Reports reveals 159 majority opinions. This total was more than any other Justice during Woods' tenure except that of Chief Justice Waite, who wrote over 400 opinions. Although this seems an impressive number many of the Chief Justice's opinions were only a paragraph long and today would be handled per curiam.

While the quantity of Justice Woods' opinions is significant, most of his opinions dealt with nothing more than general legal disputes which would have been found in any state or Circuit Court of the day. Twenty one percent of the opinions concerned matters related to real property and mortgages. Nineteen percent involved patents and the next thirteen percent associated with commercial matters. Seven percent were estates and trusts issues with the remainder, for the most part, pertaining to taxation, corporations and municipal law. The fact that these cases provoked little controversy on the court is illustrated in that only nine dissents were rendered against all of Woods' decisions, the lowest except for Blatchford.

While the majority of Woods' written opinions might be classified as mundane compared to present Supreme Court case-load, they were standard fare in the 1880's. At best, two of Woods 159 opinions remain of notable interest. In 1883, the Court, Woods, writing for a majority of eight, in United States v. Harris,[54] held the federal civil rights laws (so called the Ku Klux Klan Laws) unconstitutional. Woods found no constitutional provision which would support Congressional power "to enact a law which would punish a private citizen for an invasion of the rights of his fellow citizen, conferred by the state of which they were both residents, on all its citizens alike." Harlan's dissent was only to the issue of jurisdiction.

In the same year as Harris, the court had allowed laws on segregation of accommodations and miscegenation to withstand constitutional attack.[55] However, Woods joined Harlan's dissent in Elk v. Wilkins,[56] where the Court, speaking through Justice Gray, held Indians not to be citizens within the meaning of the Constitution and the Civil Rights laws.

Speaking for an unanimous court in Presser v. Illinois,[57] Woods held that a state law regulating military organizations did not violate the Constitution. Presser had participated with a private military company, marching and bearing arms, which had not been licensed according to state law. Found guilty, he was fined $10.00. Woods, citing United States v. Cruikshank,[58] held that the Second Amendment was only applicable to the national government. The state law did not concern the right to bear arms. Since the right to participate in military activities, independent of Congressional or state law," is not an attribute of national citizenship," Illinois' law did not fall due to the privileges and immunities clause of the Constitution.

Woods was almost always in the majority of the Court. He dissented only eight times.[59] Four of those dissents occurred in the eleven 5-4 decisions handed down between 1880-1887.[60] Although a small sample, the five-four decisions do represent some evidence of the Courts' voting pattern. On assumption that the Justices who dissent the least in these decisions comprised a majority, Table A would suggest that the majority of the Court might have been Harlan, Field, Bradley, Miller, and Woods. However, the data on dissents (tables B & C) might suggest another view–that the majority was Waite, Gray, Woods, Matthews, and Blatchford. Nonetheless, in either case the information reinforces the conclusion that Justice Woods was a majority member.

The significant division of opinion among the more notable members of the Waite Court is illustrated by Tables B and C. Field and Miller are the most often to join in a dissent, and then against Harlan. Harlan and Field also joined dissents, but usually against the Chief Justice. Just as often as not they would dissent from each others opinion. However, while Harlan and Bradley dissented against Justice Miller, they did not join in that endeavor. Thus, the second "Majority" membership appears more likely to have been the situation during Woods' tenure.

Wood's illness came on quite suddenly in Spring of 1886. After appearing to recuperate during a extended visit in California, his strength soon declined. In April, 1887 he executed his will (witnessed by friends, Attorney General Garland, a past Solicitor General and Assistant Attorney General). He died a month later.[61] Accompanied by his wife, the Chief Justice, and Justice Gray, Woods was returned to Ohio where he was buried in his hometown Newark.

As another commentator has noted, at the time of Woods' death, the news media was more concerned with his successor than in elaborating Woods' contributions to the Court. Probably then as now, his contributions were little known.

In 1877, the South had all but given up hope that one of her own would be appointed to the Court. With Woods' appointment three years later, there was professional and personal approval. Yet, it was not the same thing. The Atlanta Daily Constitution summed up the Southerners' desires: "it is hoped that the appointment of Justice Woods will not interfere with the success of the movement which has as its purpose the appointment of a real representative of the South on the Supreme Court." The South got her wish. With the passing of Woods, one of his initial supporters and an acknowledged son of the South was appointed by President Cleveland. Lucius Quintus Cinnatus Lamar came to the Court in January 1888. He, too, would be there only a short time.

Conclusion

The mediocrity label placed on Justice Woods is unfounded. Nevermore than sixth in seniority, he was judicially more productive than any other member of the Waite Court, except the Chief Justice. There is no doubt that his status on the Court has been obscured by the eminence and longevity of his colleagues, Harlan, Field, Miller, and Bradley. The insignificance of the opinions he was assigned may be due to the jurisdiction of the Court at the time or possibly the Chief Justice's understanding that Woods could be called upon to do more than his share.

After making this inquiry, there is no doubt in my mind that commentators on Woods' performance and those participating in the 1970 Justices' Poll could not have had sufficient information on which to make a valid judgment of his qualifications or contributions. The information was then, and to a great degree now, unavailable. The obscurity of the Justice can be the only basis for his "below average" position in the poll. The absurdity of this characterization is apparent when comparing the pollsters place of Clifford and Hunt as "average".

So far the search for Justice Woods has born little fruit. His papers, except for a few minor notes, are still adrift. The basis and extent of the Justice's political and personal influence is for the most part conjecture. Other than his judicial opinions, mostly on commonplace legal issues, his thoughts, desires, values and goals have not been articulated. At times, one gets the feeling his personal obscurity was an intentional endeavor.

What has been gleaned from this inquiry is that the Justice was a very private person, a gentleman respected by his neighbors and professional colleagues. A diligent jurist, noted for his knowledge of the law, who took to the judicial harness quite willingly. Possibly the words of the Chief Justice of Georgia spoken at the time of Woods' elevation to the Supreme Court reflects Woods' commitment. "We are proud of him because he is identified with us, and while serving as a judge in our midst has known nothing but the law, and been loyal to nothing but the law."

Endnotes

1. See, C. P. Lamar, The Life of Joseph Rucker Lamar (1926); L. Dinnerstein, Joseph Rucker Lamar, in 3 L. Friedman and F. Israel, The Justices of the United States Supreme Court 1973 (1969).
2. W. Armistead, L. Q. C. Lamar, Secession and Reunion (1935); 2 Friedman and Israel 1431 (1969).
3. J. Kennedy, Profiles in Courage 174 (1964).
4. A. Lawrence, James Moore Wayne (1943).
5. H. G. Connor, John Archibald Campbell (1920).
6. See, F. O. Gatel, John Catron, 1 Friedman and Israel 737 (1969).
7. See generally, William Burnham Woods, 20 Dict. Amer. Biog. 505 (1936); 8 Wash. L. Rpt. 818 (1881); 15 Wash L. Rpt. 357 (1887): 1 Indexed Digest, U.S. Supreme Court Reports lxxxii (1897).
8. E.g., Charles Warren's History of the Supreme Court only acknowledges Woods' appointment and death. 2 C. Warren. The Supreme Court in United States History, 566, 624 (1926); In fact, the Justices photograph of the Waite Court shown in Warren's text has Woods' name misspelled at 622. See also, T. Campbell, Four Score Forgotten Men, 255 (1955); E. S. Bates, The Story of the Supreme Court 207 (1936).
9. See, F. Rodell, Nine Men 164 (1955); H. Abraham, Justices and Presidents 124 (1974).
10. Mersky and Blaustein, 58 A.B.A. J. 1183 (1972); Cf. Nagel. Characteristics of Supreme Court Greatness, 56 A.B.A. J. 957 (1970).
11. See generally, note 7 supra and L. Fuller, William Burnam Woods, 2 Friedman and Israel 1327 (1969).
12. C. Fairman, VI History of the Supreme Court, Reconstruction and Reunion, Part One 166, n119 (1971).
13. Id. at 168, 69; F. Frankfurter and J. Landis, The Business of the Supreme Court 73 (1928).
14. 16 Stat. 44, 45 (1869); Frankfurter and Landis supra note 13 at 75, 76.
15. C. Fairman, Mr. Justice Miller and the Supreme Court 340 (1939).
16. M. Storney & E. Emerson, Ebenezer Rockwood Hoar (1911).
17. Id. at 181; See also, Warren Supra note 8 at 501; Fairman, supra note 12 at 487088: 559, 60, 731 ff.
18. Id. at 182; 1 G. Hoar, Autobiography of Seventy Years 306, 07 (1903).
19. 17 J. Exec. Proc. Senate 329 (1869); See, D. McHargue, Appointments to the Supreme Court of the United States 203 (Unpublished Dissertation 1949).
20. Storey & Emerson, supra note 16 at 182.
21. See, C. Vann Woodward, Reunion and Reaction (1966); H. Barnard, Rutherford B. Hayes and His American (1954).
22. McHargue, supra note 19 at 34.
23. Frank, The Appointment of Supreme Court Justices; Prestige, Principles and Politics, 1941 Wisc. L. Rev. 172, 304.
24. Id. at 205-09; Fairman, supra note 15 at 360, 361.
25. Fairman, supra note 15 at 350.
26. Id. at 352.
27. 1 Woods 21 (C.C.D. La. 1870); Fuller, supra note 11 at 1331.
28. This letter and others may be found in the National Archives, T.N.A. R.G. 60 (1877) quoted in McHargue, supra note 19 at 259; See, Frank, supra note 23 at 205.
29. Id.
30. Id.
31. T.N.A. R.G. 60, 1877, National Archives.
32. See, 3 H. Brown and F. Williams, the Diary of James A. Garfield 489 (1971); McHargue, supra note 19 at 258.
33. Westin, John Marshall Harlan and the Constitutional Rights of Negroes, 66 Yale L. Rev. 637, 668 (1957).
34. Washington Evening Star, A1, December, 1881.
35. Washington Evening Star, A1, December 9, 1880.
36. Fairman, supra note 15 at 358, 362; Bradley appears to have gone to see the President about Woods. In that Bradley was the member of the Hayes-Tilden Election Commission which brought about Hayes confirmation as President. The president probably paid significant attention to the Justice's position. See, Friedman, Joseph p. Bradley, 2 Friedman and Israel 1181, 1191 (1969).
37. Two commentators stress that Waite recommended Woods; B. Trimble, Chief Justice Waite 140 (1938); Abraham, supra note 9 at 20, 136. There is only marginal evidence to suggest such a strong position on the part of Waite.
38. Fairman, supra note 15 at 381.
39. Abraham, supra note 9 at 126; see also, R. Scigliano, The Supreme Court and the Presidency 100 (1970); Barnard, supra note 21 at 497, 98.
40. 22 J. Exec. Proc. Senate 415, 16 (1880).
41. See, New York Times, December 12, 1880; Washington Evening Star, December 20, 1880; Atlanta Daily Constitution, December 12, 1880.
42. Atlanta Daily Constitution, December 12, 1880, at 2.
43. New York Times, Editorial, December 12, 1880.
44. J. Exec. Proc. supra note 40 at 421.
45. Washington Evening Star, December 15, 1880.
46. Fairman, supra note 15 at 381; Fairman, Retirement of Federal Judges, 51 Harv. L. Rev. 396, 423 (1938).
47. J. Exec. Proc. supra note 40 at 426-428.
48. Woods to Waite, December 15, 1880, Waite Papers, Library of Congress.
49. Waite to Hayes, January 4, 1881, Waite Papers, Library of Congres; see, C.P. Magrath, Morrison B. Waite; the Triumph of Character 269 (1963).
50. Waite to Hayes, January 2, 1881, Waite Papers, Library of Congress; See, Trimble, supra note 37 at 272.
51. Justice Ward Hunt suffered a stroke in January 1879. He refused to resign because of his pension ineligibility. Kutler, Ward Hunt, 2 Friedman and Israel 1221 (1969); "I write you a letter with my left hand. I cannot spell anything, nor can I aticulate (sic) any better. My portion shall not be in the Court Room during the rest of the court of the session, but I hope to see you at the consultation once more, once during the present session, good bye to yourself, goodbye to all my brethren upon all the bench." Hunt to Miller, April 13, 1880, quoted from 2 Leg. Hist. 85 (1959). Hunt did not resign until 1882. He died in 1886. Justice Nathan Clifford was eligible for retirement in 1873, but refused to resign until a democratic president could fill his vacancy, Clifford's mind failed him and he was a constant burden to the Court from the October term 18976. Gillette, Nathan Clifford, 2 Friedman and Israel 963 (1969); Fairman, Retirement of Federal Judges, 51 Harv. L. Rev. 397, 421 (1938); Magrath, supra note 49 at 260-262.
52. Frankfurter and Landis, supra note 13 at 97, 295. Reports of the Attorney General, 1879 through 1895 set forth the early statistics on the Court and the circuits. Basis for the Supreme Court's heavy workload during this period may be traced to congressional enlargement of the Court's jurisdiction. See generally, Wieck. The Reconstruction of Federal Judicial Power, 13 A. J. Leg. Hist. 333, 341 (1969); See also, Pirie v. Tvedt, 115 U.S. 41 (1885); Harper's Weekly, June 17, 1882.
53. Campbell, supra note 8 at 225. Justice Woods opinions appear in Volumes 113 through 117, United States reports. Because of illness, he did not participate in any decisions, except one, after the October 1886 Term. See, Vicksberg & Meridian R.R. Co. v. O'Brien, 119 U.S. 99 (1886). This was a 5-4 decision with Woods in the majority.
54. 106 U.S. 629 (1883).
55. Civil Rights Cases, 109 U.S. 3 (1883); and PCE v. Alabama, 106 U.S. 583 (1883); Harlan and Field dissenting respectively.
56. 112 U.S. 94 (1884).
57. 116 U.S. 252 (1886).
58. 92 U.S. 542 (1876); see also, 2 Friedman and Israel 1333.
59. Woods' only dissenting opinion was in Patch v. White, 117 U.S. 210 (1885). This was a 5-4 decision with Gray, Blatchford and Matthews joining Woods. The issue was on whether parol testimony could be used to cure what the majority claimed to be an ambiguity in a land description set forth in a will. Other dissents were: Railroad Co. v. Ellerman, 105 U.S. 166 (1881); Flanders v. Sellye, 105 US. 718 (1881); United States v. Lee, 106 U.S. 196 (1882); Rector v. Gibbon, 111 U.S. 276 (1883); Elk v. Wilkins, 112 U.S. 94 (1884) joining Harlan; Pirie v. Tvedt, 115 U.S. 41 (1885) joining Harlan: Graffam v. Burgess, 117 U.S. 180 (1885).
60. Five-four decisions of the Waite Court (1881-1886) United States v. Lee, 106 U.S. 196 (1882), Extension of citizens right to sue the Sovereign; Kring v. Misssouri, 107 U.S. 221 (1883), Ex post Facto Law; Boese v. King, 108 U.S. 379 (1883), effect of Bankruptcy Act on State Statute allowing assignment to creditors; Rector v. Gibbon, 111 U.S. 276 (1884), Land Titles; Virginia Coupon Cases, 14 U.S. 269 (1885), impairment of obligation of contract; Wheeler v. New Brunswick & Canada R.R. Co., 115 U.S. 29 (1885), interpretation of contract for sale of railroad ties; Northern Pacific R.R. Co. v. Herbert, 116 U.S. 642 (1996), limitation of railroad liability for employee's injury; Vicksburg, Shreveport & Pacific R.R. Co. v. Dennis, 116 U.S. 665 (1886), Railroad Tax Exemption; Graffam v. Burgess, 117 U.S. 180 (1886), Judicial sale of real estate; Patch v. White, 117 U.S. 210 (1886), land description in devise; Vickburg & Meridian R.R. Co. v. O'Brien, 119 U.S. 99 (1886), admissibility of evidence.
61. In Memoriam William Burnham Woods, 123 U.S. 761 (1887).