Vol. 15 No.3 (March 2005), pp.260-263.

THE CHASE COURT: JUSTICES, RULINGS, AND LEGACY, by Jonathan Lurie. ABC-CLIO, 2004. 247pp. Hardcover. $65.00. ISBN: 1-57607-821-3.

Reviewed by Christopher Malone, Department of Political Science, Pace University.  Email:  cmalone@pace.edu

Editor Peter Renstrom explains in his forward to THE CHASE COURT: JUSTICES, RULINGS, AND LEGACY that the ABC-CLIO Supreme Court Series is designed to reach not only the academic and legal community, but also a more general audience interested in Supreme Court history. When completed, the Series will encompass the tenure of each of the fourteen Chief Justices in the Court’s history, beginning with the first Chief Justice John Jay and ending with current Chief Justice William Rehnquist. To date, the ABC-CLIO Series has covered eleven of the fourteen. THE CHASE COURT, written by Jonathan Lurie, professor of legal history at Rutgers University, is the latest handbook to appear in the series.

Lurie’s volume follows a very similar format laid out in the previous handbooks. Part I begins with a brief overview of the Court and the historical period, moves on to provide biographical background on each justice to sit on Chase’s Court, discusses the major cases decided during Chase’s tenure, and concludes with an analysis of the legacy and impact of the Chase Court. Part II contains approximately 100 pages of supporting reference materials – key people, laws, events, documents, and a table of cases during his tenure. It is a slim and concise volume, totaling about 230 pages not including the index. Series Editor Renstrom is correct in that THE CHASE COURT is a perfect primer for anyone who wishes to get his/her feet wet with the Supreme Court under Chief Justice Salmon P. Chase.

Chase was appointed Chief Justice on December 6^th, 1864 – exactly one month after Lincoln’s reelection and about four months before his assassination – and he held his seat for eight years. Given the circumstances of his service (an appointment while the Civil War waned and the relative brevity of his tenure), one could argue that Chief Justice Chase stood just as much in the shadow of giants as he did on their shoulders. As Lurie points out in the introduction, Chase was in the unenviable position of following two of those giants whose combined service spanned nearly sixty years: John Marshall (1810-1835), and Roger Taney, who replaced Marshall in 1836 and whom Chase replaced when Taney died in 1864.

Yet, while the impact of Marshall and Taney on the history and direction of the Supreme Court is unmistakable, it would be inaccurate to say that Chase was not as significant. He served from late 1864 to early 1873 – eight short years that witnessed a social upheaval unlike any other in American history. Chase interpreted, for the first time, the Reconstruction Amendments, presided over the impeachment of a U.S. president (also for the first time in history), and witnessed the rise and demise of the Reconstruction effort in [*261] the post-war South. During the Marshall and Taney eras, the American political economy evolved slowly and steadily. During Chase’s term, development exploded, and his court was charged with interpreting the Constitution amid the maelstrom.

In Chapter 3, Lurie provides a lucid and succinct explanation of fourteen of the Chase Court’s major decisions. Several are worth mentioning here in brief.

In EX PARTE MILLIGAN (1866), the Court held that military tribunals could not try an American citizen who was not in the military if in fact the civil courts were open and operating during a time of war. In 1864 Lambdin Milligan, a lawyer and antiwar activist living in Indiana (which had not seceded from the Union), was arrested and charged with conspiracy against the U.S. government by a military commission. A bare majority also held that under no circumstances could Congress establish military tribunals as long as both state and federal courts were open and operating throughout the conflict. In Chapter 4, Lurie explains that EX PARTE MILLIGAN was a landmark case in the field of civil liberties, even if it was unpopular with Radical Republicans when the decision was announced. Yet, “in the wake of both World War II as well as the more recent tragedies of 9/11 and their aftermath, its lasting significance may be uncertain” (p.95).

The most famous decision of the Chase era was rendered in THE SLAUGHTERHOUSE CASES (1873) in which the Court was asked to interpret the Thirteenth and Fourteenth Amendments for the first time. The case involved the creation of a “grand slaughterhouse” in New Orleans in 1869, which sought to reform sanitary conditions in the city, but which also served to put many butchers out of business. In a 5-4 majority opinion, Justice Miller rejected outright the argument that restricting the livelihood of New Orleans butchers was a violation of their Thirteenth Amendment rights. Miller then turned to an analysis of the Fourteenth Amendment. Lurie explains:

Applying a narrow meaning to the Fourteenth Amendment, all the more perhaps because in the case before him the plaintiffs were white butchers bickering over where they could slaughter beef in a crowded municipality- Miller emphasized that newly liberated blacks might indeed look to the federal government for protection from inappropriate conduct. But privileges and immunities for the rest of the citizenry remained where they had always been, within the hands of the states . . . [The] butchers might indeed have a legitimate beef, but they were in the wrong judicial forum. Finally, Miller pointed to the lack of clear intent from Congress that the new amendments were to introduce fundamental changes in the federal system. In short, with the possible exception of the ex-slave, the Union is as the Union was. (p.83)

THE SLAUGHTERHOUSE CASES introduced the concept of dual citizenship into constitutional jurisprudence. In addition, the shift in the balance of power from the states to the federal government that the Fourteenth Amendment promised was quickly spurned by the Court and would have a significant impact on the direction of federalism until the New Deal. Lurie concludes that with the [*262] SLAUGHTERHOUSE CASES the “traditional balance between federal and state remain unchanged” (p.83).

Just one day later the Court handed down another decision centered on the Fourteenth Amendment. In BRADWELL v. ILLINOIS (1873) the Court held that the Fourteenth Amendment did not provide for equal protection on the basis of gender for Myra Bradwell, who had sought a license to practice law in the state of Illinois. Again writing for the majority, Justice Miller found that the right to practice law did not depend on federal citizenship, but only state citizenship. And if a state decided to bar women from legal practice, the federal courts were powerless to intervene. In his concurring opinion, Justice Bradley patronized Bradwell by further arguing that the female sex is “unfit . . . for many of the occupations of civil life.” The Court reaffirmed the concept of dual citizenship under the Fourteenth Amendment as it also sought to leave unscathed a state-centered approach to constitutional interpretation.

These three cases are roundly cited as the most important of Chase’s tenure. Yet they share something else in common—Salmon Chase dissented from the majority opinion in all three. In EX PARTE MILLIGAN, Chase argued that Congress did in fact have constitutional power to set up military tribunals in the future if it saw fit. In other words, he and his fellow dissenters did not want to “cripple the constitutional powers of the government” (p.58). In SLAUGHTERHOUSE, Chase offered a silent concurrence to Justice Field’s vigorous dissent over the proper meaning of the Fourteenth Amendment. And in BRADWELL, an ailing Chase could only muster a terse one sentence, stating that he dissented “from the judgment of the Court, and from all opinions” (p.85). Chase was too weak to explain why he disagreed with the majority positions of his own Court. Three weeks later on May 7, 1873, he passed away.

Given that Chase presided over the Court during a period in American history that could only be classified as complete disruption, what is in fact his legacy? The word Lurie uses to describe the Chase Court is “ambiguous.” In Chapter 4, Lurie analyzes two areas in which the landmark cases fall, state authority and due process during wartime. The chapter is a solid assessment of the legacy of the Chase Court as successor courts interpreted law based on its rulings. It also ends Part I on the book, which is by and large the substantive section of THE CHASE COURT.

As mentioned at the outset, the text is a basic primer on the legacy and rulings of Salmon Chase and his Court. In this sense, the text succeeds in its objectives – it is accessible to a wide audience, from scholars to those with a lay interest in the history of the Supreme Court. While it is perhaps too basic to use as a primary text in a college class on constitutional law, it nonetheless may serve as an adequate supplement. One can even see high school teachers using the text in their pre-law courses that focus on the history of constitutional law.

Given all of the positive qualities of the text, I would, however, have liked for Lurie to consider the legacy of Salmon [*263] Chase a bit more thoroughly in an historical context. The background and biographical information Lurie provides on Chase and his abrasive relationship with the man who nominated him – Abraham Lincoln – is nothing short of fascinating. My point is a different one. Here we have the first Republican in the history of the country appointed to be Chief Justice of the U.S. Supreme Court. Lurie writes eloquently about how Chase shared with Lincoln a vision of a strong central government in the wake of Southern secession. In TEXAS v. WHITE (1869), Chase put the matter bluntly when he stated, “The Constitution, in all of its provisions, looks to an indestructible Union, composed of indestructible States.” Yet, given Chase’s opinions, particularly in those decisions mentioned above, we are met with a fascinating comparison of where the Republican Party started its ideological journey in the 1850s and 1860s, and where it finds itself today.

What emerges from the record is that Salmon Chase was no states’ rights advocate. He argued that the Congress has certain powers during wartime that states could not usurp and which citizens had to abide; he further argued that the federal government had the authority under the Fourteenth Amendment to provide equal protection of the laws when states violated them – be it African Americans across the South, white butchers in Louisiana, or a female applying to the Illinois bar for a license to practice law. More than 120 years after Chase was appointed to be chief justice by the first Republican president, William Rehnquist was appointed by another Republican president in a period when once again the Republican Party was emerging as the dominant party. And yet, the contrasts between these two periods, and these two Chief Justices are striking, to say the least.

Though it perhaps is not the aim of THE CHASE COURT to address these issues, at the very least such ideas and issues arise when reading the text. In the end this may be the greatest success of THE CHASE COURT: the fact that it sparks interest for further discussion.

CASE REFERENCES:

BRADWELL v. ILLINOIS 83 U.S. 578 (1873).

EX PARTE MILLIGAN, 71 U.S. 1 (1866).

THE SLAUGHTERHOUSE CASES, 83 U.S. 36 (1873).

TEXAS v. WHITE, 74 U.S. 700 (1869).

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© Copyright 2005 by the author, Christopher Malone.