Morrison Waite 's Court

Jeffrey B. Morris

During the fourteen years Morrison Remick Waite was Chief Justice, the United States skyrocketed to the front rank of the world's nations, shedding some republican virtue along the way. Called upon, like its predecessors, to face many of the nation's great domestic problems posed as questions of constitutional or statutory interpretation–but called upon to face them in an era of "cascading vitality" and failed civic morality–the Supreme Court of this era rose to the challenge. By its performance during these years, the Court repaired much of the institutional damage which it had brought upon itself by the decisions in the Dred Scott and Legal Tender cases. Not all of its jurisprudence was well received by posterity, but with the perspective of a century, it is fair to regard the Court of this era as one of the most able in American history.

The Nation

Alexander Hamilton had advised Americans of his generation to think "continentally." During the era which stretched from the end of the Civil War to the turn of the century (Waite serving as Chief Justice from 1874 to 1888), America began to act "continentally." Frederick Jackson Turner pronounced the frontier closed as of 1890, two years after Waite's death. By then the Indian had been defeated and the buffalo almost exterminated. In their place had come miners, cattlemen, and sheepherders. Farmers began to reap an agricultural miracle–turning America into the world's largest breadbasket. That huge common market, anticipated by the Framers and sanctioned by Marshall's great opinion in Gibbons v. Ogden, was becoming a reality. Huge areas were drawn together by the telegraph, by the telephone, and the railroads. Millions of immigrants came from Europe, Japan and China. Most were used as a cheap labor force, but American freedom unleashed their creative energies.

By making use of abundant raw materials, by developing a superb transportation system, by stimulating the endless supply of immigrants, with a people driven by a spirit of enterprise and optimism, America surged forward.

But the remarkable accomplishments of this era were not without their social and political costs. Some problems were pushed out of the way. Some were swept under the rug. New ones were created. Quite a few were to return to haunt the Nation in the mid-Twentieth Century.

A terrible human price was paid for the settlement of the West–the extermination of Indian culture. Richness of natural resources permitted their profligate use; a habit that continues to haunt. The small farmer was mythologized by his fellow Americans, but he began to disappear due to shortage of capital, high railway and grain storage rates. Many went bankrupt and ended up as tenants.

Great fortunes were spawned during an era of child labor, sweat shops and urban crowding. Trusts and combinations began to flourish during a time dominated by a far from compassionate ethos, the philosophy of Social Darwinism.

It was an age of boom and bust. There were great crashes in 1873 and 1886. Stocks fell, banks collapsed, currency payments were suspended, factories closed, railroad building was halted, bankruptcies multiplied, wages plummeted, unemployment grew, the farmer suffered. Labor tensions mushroomed–the first large-scale industrial violence in the United States occurred with the railroad strikes of 1877. The great strike in 1886 at the McCormick Harvester Works led to the Haymarket Riot. There was a search for scapegoats–anarchists, communists, and immigrants were blamed for the nation's ills.

The most profound political consequences of the politics of the 1870's and 1880's arose from the decision to sweep the "Negro Problem" out of sight. The high point of Reconstruction was reached with the Enforcement Acts of 1870 and 1871, guaranteeing suffrage and providing penalties for infringement upon the right to vote. But soon America began to pull away from a commitment to black Americans that had lasted but a decade. Vigilantes rode in the South intimidating blacks from participating in the political process. Captains of industry in the North saw their interests as lying with the white southerner. The radical leaders of the Republican Party–men like Charles Sumner and Thaddeus Stevens–passed from the scene. The new leadership–the Blames and Conklings–were attuned to the needs of business. The national attention span for social reform was not long in those days either. One decade of concern for the black man seemed long enough.

The bargain was sealed at that conference between southerners and Republicans on February 26, 1877, held at the Wormley Hotel! in Washington, which settled the election of 1876. Hayes won the Presidency, but part of the price was withdrawal of the U. S. troops supervising Reconstruction in the South. That bargain settled the pattern of race relations in the South for a generation.[1]

Although some who participated in the bargain, motivated by a desire for national reconciliation, did not want to abandon the black American, that was its effect. First came denial of the franchise, then segregation. By 1885 most Southern states had separate schools for black and white. Laws segregating blacks on railroads were a feature of the late 1880's. By 1888 the South was moving towards complete disenfranchisement of the black and to apartheid.

As republican virtue ebbs among a people, the quality and performance of those they elect declines as well. Perhaps the nadir at the national level was reached just as Waite became Chief Justice, but public life was to be characterized by a low tone for the following decade and one-half. One scandal followed another during Grant's Presidency; scandals remembered in history by pithy phrases–Black Friday, Credit Mobilier, Salary Grab, and Whiskey Ring. Blind to the conduct of subordinates and friends, Grant saw his Vice President, Schuyler Colfax, resign to escape impeachment, his Secretary of War, William W. Belknap, resign after impeachment, and his close advisor and private secretary, General Orville E. Babcock, indicted.

Nor was corruption limited to the national executive. John Garraty relates that "Coffis P. Huntington, president of the Southern Pacific Railroad divided the members of the Senate in 1876 into three groups: the 'clean' (who would do what he wanted without asking for favors), the 'commercial' (who would do the right thing if paid for it), and the 'communists' (who resisted his logic and his money).[2] The corruption seeped down into state and local politics, where votes and jobs were sold. Bribes, were given for inside information and excessive profits were made on land acquisition and public works contracts.

There were many reasons why American governance deteriorated. Rapid economic growth often engenders corruption. Entrepreneurial opportunities attracted many of the most able and strongest men, leaving the less competent for political affairs. The educational level of the electorate had declined with the infusion of immigrants and freedmen. But, not only the immigrant and the freedman acquiesced in the "politics of corruption." It was America as a whole. As Henry Adams wrote, "Rich and poor joined in throwing contempt on their own representatives."[3] As F. W. Taussig explained a generation later:

A good electorate will choose honest and capable officials, a debased and indifferent one will tolerate the demagogues and thieves.[4]

America was now choosing thieves and demagogues, but not for its high court.

Waite's Court

How did the Supreme Court perform in this age of vitality and venality? The bench over which Morrison Waite presided was one of the strongest in the Court's history. Two Justices were legitimate "super-stars"–Samuel F. Miller and Stephen J. Field. Two others were among the finest the Court has had–the elder John Marshall Harlan and Joseph P. Bradley. (In the 1970 poll of professors of constitutional law, history and politics, Harlan was rated "great"; Waite, Miller, Field and Bradley rated "near great").[5]

These men were not weak in personality or intellect. Willard King describes Miller as "a big man–blunt as a hippopotamus and candid as sunlight."[6] A great constitutional lawyer and a Lincoln appointee, Miller proved to be sympathetic to national power, skeptical about the new capitalism, careful about individual liberties, and committed to a role of balanced restraint for the judiciary.[7]

Miller's colleague Field had the "power and arrogance of an Old Testament prophet."[8] Willful, indomitable, obdurate, vital, vain and irrascible, Field's powerful but not subtle mind saw the truth as a series of broad incontestable generalities. He doubted neither his premises nor his right to impose them on his fellows.[9] In his grand tenure of thirty-four years (1863-1897), the second longest of any Justice (to William 0. Douglas), Field's tenacity in linking vested rights and the Due Process Clause was ultimately successful. But this did not occur until after 1888. Although occasional concessions were made, some of them important in the long run, while Waite was alive he held the majority together, which staved off the victory of Field's jurisprudence.

Like Field, John Marshall Harlan was a powerful rather than a subtle jurist, convinced of the righteousness of his cause. His jurisprudence has survived better than Field's, however. More than any Nineteenth Century Justice, Harlan saw the true meaning of the Reconstruction Amendments for the freedmen. He resisted the Waite Court decision in the Civil Rights Cases as he later would the Fuller Court's decision in Plessy v. Ferguson.

Field and Harlan were "true believers," lacking juristic doubts. Miller was a craftsman-like judge but not a truly learned one. Joseph Bradley was both a craftsman and a man of great learning, whose work was characterized by force, tightness, and "mental muscularity."[10]

This Court could boast of other able figures–the erudite Horace Gray (who hired the Court's first law clerk), the devout and gentlemanly William Strong, and Stanley Matthews, whose career was brief but impressive. David Davis, Lincoln's good friend, and Lucius Quintus Cincinnatus Lamar, Mississippi's flamboyant Senator, were among the more interesting men ever to sit on the Supreme Court, although their contribution to the jurisprudence of the time was slight. Samuel Blatchford was "one of the hardest working men ever to sit on the Court."[11] Writing in these pages, Professor Tom Baynes has made the case that William B. Woods, ranked "below average" in the 1970 professors' poll, deserves better treatment by posterity.[12]

The Business of the Court

This Court, which met in the Old Senate Chamber, was among the most hard working in history. Its docket exploded after the Civil War. Taney's Court had 253 cases pending in 1850 and 310 in 1860; Chase's had 636 in 1870. By 1880, 1212 cases were pending. In 1884 there were 1,315 cases; in 1886 there were 1,396; and in Waite's last year there were 1,563.[13] The Marshall Court had decided twenty-six cases during the 1825 term; the Waite Court decided 193 cases fifty years later. Five volumes of U.S. Reports had been sufficient for the pre Marshall era. Twenty-seven encompassed the Marshall Court's thirty-four years. In almost three decades the Taney Court filled up thirty-six volumes. Fourteen years of Waite Court decisions used up forty full volumes of U. S. Reports.

Normally, there are no simple explanations for litigation explosions. In part, this one was the result of the Nation's vigorous economic life. In part, it was the result of claims asserted under the new Fourteenth Amendment. Not for the last time Congress had increased the workload of the federal courts without providing those courts with sufficient assistance to do the job properly. The Removal Act of March 3, 1875, had given the federal courts the vast range of powers available under Article III which Congress previously had refused to grant. That statute opened the federal courts to any suits asserting rights under the Constitution, the laws and treaties of the United States. It provided for the removal of such cases to the federal courts, if begun in state courts. And, not for the last time the High Court contributed to its own workload through its jurisprudence. A prime example of this occurred in the Pacific Railroad Removal Cases in which the Court held that every action involving federally chartered corporations might be tried in federal courts because a federal charter of incorporation was a law of the United States.[14]

As case filings accelerated, the Court was functioning at less than full strength. For five years, from 1878 to 1883, Justices Noah Haynes Swayne and Nathan Clifford were giving way to old age and Justice Ward Hunt was disabled by a stroke. After 1883 the Court was at full strength, although it takes some time for new Justices to become acclimatized. The workload continued to increase. Relief would not come until the creation of the U. S. Courts of Appeals in 1891–an end for which Strong, Harlan, Miller, Field and Waite had all spoken out.

While many cases were of the "flotsam and jetsam" variety, now disposed of by Courts of Appeals in short opinions, the Waite Court, like its predecessors and successors, was asked to grapple with cases raising the great domestic issues facing the nation. From 1874 to 1888 the Court considered cases involving the commerce and contract clauses, state and municipal repudiation of debt obligations, the exercise of state police power over the sale of liquor and oleomargarine. There were cases involving minorities such as Mormons, Chinese-Americans, as well as litigation arising out of strikes and riots.

The jurisprudence of this Court which proved of most significance to the Twentieth Century occurred in decisions involving Reconstruction legislation and state regulation of parts of the economy. By gutting the Enforcement Acts of 1870 and 1871, the Court laid the foundation for North-South reconciliation. By its decision in the Civil Rights Cases,[15] nullifying the Civil Rights Act of 1875, the Court destroyed the delicate balance of federal guarantees, black protest, and private enlightenment which had been producing a "steadily widening area of peacefully integrated public facilities."[16] Yet, the Court did leave "a hedge of sanctioned Congressional power over civil rights resurrected by the abolitionists in the Twentieth Century."[17]

In consideration of state economic regulation, the Waite Court left a mixed heritage. In the most important decisions of the era, the six Granger Cases,[18] the Court sanctioned state laws regulating rates as well as various business practices of common carriers. In his opinion for the Court in Mann v. Illinois,[19] Chief Justice Waite–heavily influenced by Justice Bradley–held that states could regulate businesses affected by the public interest. In later cases as well, Waite Court decisions favored public regulation, striking down no social legislation of substance. For these decisions the Court was sharply criticized by business leaders. To some extent the bold stroke of the Granger cases was replaced by tentativeness in later cases. Even in Mann v. Illinois and certainly in later cases, the Waite Court left the implication that businesses unaffected by the public interest could not be regulated, that under some circumstances legislation might violate the due process clause,[20] and it granted that corporations were protected by the Fourteenth Amendment.[21] It was upon the latter heritage that–after Waite died–Fuller's Court built, coupling vested rights with the due process clause so that it became a substantive limitation upon the power of the state. It was to be forty-six years after Waite died before the Supreme Court would return to the precepts of Munn v. Illinois.[22]

The Chief Justice

Composed of strong personalities, faced with a grinding caseload, the Supreme Court needed a leader. But, perhaps no one has come to the office of Chief Justice with so many strikes against him as Morrison Remick Waite. No President had ever so demeaned the office of Chief Justice while searching for an appointee as had Grant. Waite was Grant's fifth (or possibly his seventh) choice. Several of the previous choices had had the reputation of being corrupt. One had been seventy-four years old. Thus, Waite's nomination was greeted with broad relief and disappointment. Gideon Welles expressed his relief with a typically acerbic comment: "It is a wonder that Grant did not pick up some old acquaintance, who was a stage driver or bartender, for the place . . ."[23] Charles Sumner was disappointed, yearning, as did many, for a John Marshall to "plot the country through the rocks and rapids in which we are."[24] The general view may have been that of The Nation which wrote that "Mr. Waite stands in the front rank of second-rank lawyers.''[25]

Waite was, in fact, a fine lawyer, but he was the first man to come to the office of Chief Justice without national reputation and important national experience. Waite was an outsider. He had been appointed to lead Associate Justices whose intellects appeared to be greater than his own. Their egos and ambitions were definitely larger than his. Indeed, Miller, Swayne and Bradley had sought his position. Furthermore, no one ever chosen to guide the high tribunal was less familiar with its procedures. Waite's experience before the Court was the barest minimum. He had appeared before it but once–the day he was admitted to the Supreme Court bar.

The institution Waite was called upon to lead, slowly recovering from one self-inflicted wound, the Dred Scott case, had just administered another with the Legal Tender decision. Even the illustriousness of the office Jay and Marshall had held had been tarnished by the bitter attack on Taney during his last years and by Chase's political activities.

Waite overcame all these handicaps to preside over the Supreme Court with distinction. He proved to be an excellent manager and harmonizing leader. In few eras has the High Court been as immune from political and personal attack as it was from 1874 to 1888.

Possibly because of all these handicaps, Waite "tried harder." He was a man with a delightful personality. Kenneth Bernard Urnbreit wrote of that "singularly winning nature."[26] Justice Samuel Miller, a sharp critic of most everybody, including Waite at times, spoke of his "kindliness of heart rarely if ever excelled."[27] Some of the adjectives which were used by Waite's colleagues, contemporaries, and biographers to describe him are not those typically applied to great men of affairs–"considerate," "kind," "unaffected," "humble," "lovable," "a good listener," "approachable," and "affable." Waite was not, of course, Lincoln's equal, and he lacked his streak of melancholy, but in many ways his personality was Lincolnian.

It is not simply that Waite had a nice personality. A good amateur psychologist, he was sensitive to "the benefits which could be derived from relieving interpersonal tension and supporting fuller egos."[28] As D. Grier Stephenson has suggested, Waite attempted to fashion the camaraderie necessary for the Court to function effectively from among separate prides and passions.[29] Naturally affable, Waite worked at his social leadership and kept his strong-headed brethren puffing together.[30]

Waite found time for people. He always took time to advise his colleagues. In his role as manager of the employees and officers of the Court, he was intent from the beginning in showing that he cared. He wrote:

I went into the office of the Marshal of the Court and had him introduce to me all the inferior officers and the servants. . . . It seemed an entirely new thing and they were all apparently delighted. Judge Chase kept himself on the dignity of his office and permitted no one to interfere with him.[31]

In order to cope with the heavy docket, the Justices had to work extremely hard. Another reason for Waite's effective leadership was the example he set by his hard work. He usually took the largest share of opinions to write. He would take over unfinished tasks of his ill colleagues. Indeed, one summer he even heard admiralty cases in New York, replacing Justice Ward Hunt on circuit. When asked why he worked so hard, Waite would say simply that he was doing it for the honor of his grandchildren.

Waite's energy and contributions are exemplified by the number of opinions he authored. His 872 opinions for the Court in fourteen years rank him second only to Holmes, who sat more than twice as long. His output of majority opinions per year is far higher than that of any other Justice–62.29 (64.93 total opinions annually). (Colleagues Harlan, Miller, Field, and Blatchford, who served only eleven years, rank fourth, seventh, eighth and nineteenth, in opinions for the Court).[32]

Waite was a good manager, perhaps a great one. He directed the conference effectively, assigned cases sensibly, and, to the extent possible, kept his court abreast of its docket. He proved to be energetic and able in ruling on motions upon which the Chief Justice rules alone for the Court, and in enforcing the rules of the Court. He presided over the Court with dignity, fairness and competence, and was known for his courtesy to the attorneys before the Court. Attorney General August H~ Garland regarded him as "almost unequalled in the discharge of ... executive duties, as the presiding officer of the Court . . . one of the best administrative judges I have ever seen."[33]

In spite of the foregoing accomplishments, Waite still has been viewed by many observers somewhat in the manner in which Holmes wrote of Franklin Delano Roosevelt–as combining a second-rate intellect with a first-rate personality. Such analysis is not fair to either F.D.R. or Waite. To be sure, posterity has not regarded his opinions highly. Felix Frankfurter, a great admirer, wrote that Waite lacked the "stuff of the artist," that his brief opinions lacked power, written as they were in "humdrum, matter-of-fact, dry lawyers' English, unrelieved by the flashing word or the overtone of meaning."[34]

But, even if he did lack the stuff of the artist, Waite held his own for fourteen years among brilliant jurists. Resisting Field's approach to economic due process, he held together that majority which staved off the victory of Field's jurisprudence. Not only did he write the most opinions, but he specialized in tough legal areas such as jurisdiction, federal practice and procedure, patents, copyrights and property. He assigned himself a reasonable share of the great cases, among them Munn v. Illinois, Reynolds v. United States[35]–the polygamy case–and the Telephone Patent Case,[36] the longest suit in U.S. history with the longest opinion in Supreme Court history.

Waite thought about his judging. In a sense, he is the link between Taney and Holmes/Brandeis. Not considering wealth to be an end in itself, he refused to raise property rights to an absolute. He respected state police powers. With a deep-seated faith in representative democracy, Waite was chary about upsetting legislative decisions. He was concerned that judges sometimes "make too much law at once."[37] He deferred to the legislature on questions of constitutionality, refusing to deprive it of its choice of policy. In his great decision, Munn v. Illinois, Waite wrote that "For protection against abuses by the legislatures the people must resort to the polls, not to the courts."[38] With a fact-consciousness which anticipated Brandeis, Waite transcended his background. As Felix Frankfurter put it:

. . . he did not confine the Constitution within the limits of his own experience. . . . The disciplined and disinterested lawyer in him transcended the bounds of the environment within which he moved and the views of the client whom he served at the bar.[39]

Chief Justice Waite had character as well as personality. As important as what he did as Chief Justice was–at least in two instances–-what he did not do. One was his decision not to sit as a member of the Electoral Commission which was to decide the disputed election of 1876. In part this was because of his close friendship with candidate Rutherford B. Hayes. It also appears that Waite was concerned with the reception of the opinions in the Granger Cases–about to be handed down–and was determined not to give critics extra ammunition.

The second major decision which Waite made, which was right for his Court and his office, was his decision not to be considered for the Presidency. His predecessor Chase had hungered for that office. His brethren, Davis, Miller and Field, made some effort to attain it. But, in a moving series of letters, Waite disavowed Presidential ambitions, and stifled the effort to draft him in 1876. His concern was with the honor of his office:

The office has come down to me covered with honor. When I occupied it, my duty was not to make it a stepping stone to something else, but to preserve its original purity and make my own name as honorable as that of any of my predecessors. No man ought to accept this place unless he takes a vow to leave it as honorable as he found it.[40]

Conclusions

While later courts destroyed some of its jurisprudence in the area of economic regulation and its handling of Reconstruction legislation had to be undone, there is much in the Waite Court to which posterity could and can repair. The men of the New Deal looked to Munn and other Waite Court decisions interpreting the due process, commerce, and contract clauses. Those in search of balanced theories of judicial power can do much worse than to look to an approach of restraint, yet one short of abdication, that of Waite himself. And later Chief Justices could do much worse than to live up to the model of the bearded Ohioan who worked so hard, guided his brethren so lovingly, and passed his office on to his successors covered with honor.

For Further Reading

Waite, Miller and Field are the subjects of three of the finest judicial biographies. See C. Peter McGrath, Morrison R. Waite The Triumph of Character (New York: The Macmillan Co., 1967); Charles Fairman, Mr. Justice Miller and the Supreme Court 1862-1890 (New York: Russell and Russell, 1939): Carl Brent Swisher, Stephen J. Field Craftsman of the Law (Chicago and London: University of Chicago Press, 1930).

On Waite see also: D. Grier Stephenson, "The Chief Justice as Leader: The Case of Morrison Remick Waite," 14 W & M L.R. 899-926 (1973); Rocco J. Tresolini, "Chief Justice Morrison R. Waite and the Public Interest," 34 NW Ohio Q No. 3 (Summer 1962) 124-137 Felix Frankfurter, The Commerce Clause under Marshall, Taney and Waite (Chicago: Quadrange Books, 1964); Kenneth Bernard Umbreit, Our Eleven Chief Justices (New York and London: Harper & Brothers, 1938.)

While I do not agree with his theory indicting the Waite Court for coupling vested rights and the due process clause, Robert G. McCloskey's work is interesting and important. See for example, his introduction to the 1969 edition of Swisher's Field and The American Supreme Court (Chicago and London: University of Chicago Press, 1960).

* I acknowledge with appreciation the research assistance of Daniel C. Richman, a senior at Harvard College.

Endnotes

1. J. G. Randall and David Donald, The Civil War and Reconstruction (Boston: D.C. Heath & Co., 1961), p. 701.
2. John A. Garraty, The New Commonwealth, 1877-1890 (New York: Harper & Row, 1968), p. 231.
3. The Education of Henry Adams (Boston: Houghton Mifflin Co., 1918), pp. 280-281.
4. Frank W. Taussig, Principles of Economics, (New York: The Macmillan Co., rev. ed. 1938), II, 431.
5. Albert Blaustein and Roy M. Mersky, "Rating Supreme Court Justices," 58 ABAJ 1183 (Nov. 1972).
6. Willard King, Melville Weston Fuller (Chicago: University of Chicago Press, 1967), p. 125.
7. Alan F. Westin, An Autobiography of the Supreme Court (New York: The MacMillan Co., 1963), p. 108.
8. Alan F. Westin, "The Case of the Prejudiced Doorkeeper," in John A. Garraty (ed.), Quarrels that Have Shaped the Constitution (New York: Harper Colophon ed., 1966) 128-144 at p. 137.
9. Robert G. McCloskey, "Introduction" to Carl Brent Swisher, Stephen J. Field, Craftsman of the Law (Chicago: University of Chicago Press, 1969), p. xix.
10. See Willard King, Melville Weston Fuller, supra n. 8, p. 189, and Charles Fairman, "Mr. Justice Bradley" in Allison Dunham and Philip B. Kurland, Mr. Justice (Chicago: University of Chicago Press, 1956).
11. Robert J. Steamer, The Supreme Court in Crisis (Massachusetts: Amherst University of Massachusetts Press, 1971), p. 118.
12. Thomas E. Baynes, "Yankee From Georgia, a Search for Mr. Justice Woods," 1978 Yearbook, SCHS 31-42.
13. Felix Frankfurter & James M. Landis, The Business of the Supreme Court (New York: The MacMillan Co., 1928), in passim esp. p. 86.
14. 115 U.S. 2 (1885). See also Ex Parte Schollenberger, 96 U.S. 369 (1877). C.f. Murdock v. Memphis, 20 Wall 590 (1875) where the Court shut off what might have been a phenomenal increase in its work by holding that it had not been required by the Act of Feb. 5, 1867, when reviewing state judgments to review all errors in the record whether federal questions or otherwise.
15. 109 U.S. 3 (1883).
16. Allan F. Westin, Freedom Now (New York: Basic Books, Inc., 1964), p. 73.
17. Michael Les Benedict, "Preserving Federalism: Reconstruction and the Waite Court," 1978 Sup. Ct. Rev. 39 at p. 79.
18. 94 U.S. 113-187 (1877).
19. 94 U.S. 113 (1877).
20. See Stone v. Farmers' Loan & Trust Co., 116 U.S. 307 (1886).
21. Santa Clara Co. v. Southern Pac. R.R. Co., 118 U.S. 394, 396 (1886).
22. Nebbia v. New York, 291 U.S. 502 (1934).
23. Gideon Welles to Edgar T. Welles, Jan. 22, 1874, quoted in D. Grier Stephenson, "The Chief Justice as Leader: The Case of Morrison Remick Waite, 14 W & M L. Rev. 899, 904.
24. Quoted by Samuel Shellabarger in his "remarks" in Proceedings in Memoriam Morrison R. Waite, 126 u.s. 585, 599-600 (1888).
25. The Nation, Jan. 22, 1874, quoted in Stephenson, "The Chief Justice as Leader," supra n. 23 at p. 904.
26. Kenneth Bernard Umbriet, Our Eleven Chief Justices (New York & London: Harper and Brothers, 1938), p. 297.
27. "Remarks" of Justice Samuel Miller, Proceedings in Memoriam, supra n. 24, 126 U.S. at p. 610.
28. D. Grier Stephenson, "The Chief Justice as Leader," supra n. 23 at p. 907.
29. Ibid., p. 908.
30. C. Peter Magrath, Morrison R. Waite, The Triumph of Character (New York: The MacMillan Co., 1963), p. 224. See also Rocco J. Tresolini, "Chief Justice Morrison R. Waite and the Public Interest," 34 N.W. Ohio Q. No. 3 (Summer 1962) at p. 128.
31. Morrison R. Waite to Amelia Waite, Feb. 22, 1874, quoted in C. Peter Magrath, Morrison R. Waite, supra n. 30, p. 97.
32. Albert P. Blaustein and Roy M. Mersky, The First Hundred Justices (Hamden, Conn.: Archon Books, 1978), p 101.
33. Quoted in Bruce R. Trimble, Chief Justice Waite, Defender of the Public Interest (Princeton: Princeton University Press, 1938), pp. 257-258.
34. Felix Frankfurter, The Commerce Clause Under Marshall, Taney and Waite (Chicago: Quadrangle Books, 1928), p. 79.
35. 98 U.S. 145 (1878).
36. Dolbear v. AmerIcan Bell Tel. Co., Molecular Tel. Co. v. American Bell Tel. Co.; American Bell Tel. Co. v. Molecular Tel. Co.; Clay Commercial Tel. Co. v. American Bell Tel. Co.; People's Tele. Co. v. American Bell Tel. Co.; Overland Tel. Co. v. American Bell Tel. Co., 126 U.S. 1 (1888).
37. Morrison R. Waite to Robert W. Hughes, Mar. 25, 18979, quoted in C. Peter Magrath, Morrison R. Waite, supra n. 30, at p. 209.
38. Munn v. Illinois, 94 U.S. 113, 134 (1877).
39. Felix Frankfurter, The Commerce Clause Under Marshall, Taney and Waite, supra n. 34, at p. 111.
40. Morrison R. Waite to John T. Waite, Nov. 1975, quoted in C. Peter Magrath, Morrison R. Waite, supra n. 30, pp. 281-282.