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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I'm excellent. How are you?
J. Aughenbaugh: I'm fine. May I inquire as to your assertion of excellence this morning? I know you're always excellent. But why are you feeling excellent?
N. Rodgers: I'm excellent because we are recording this in early November. We're getting ready to have an interesting election in Virginia.
J. Aughenbaugh: Correct.
N. Rodgers: We're doing all kinds of cool things are going on in the world. But also, we're getting to this part of the court eras that I like to think of as the boring guys in the middle. I'm not trying to be ugly, but everybody remembers Washington. Everybody remembers Jefferson. People start to drift when you get to Adams and they're like, "What order does it start to be?" Then you get to the middle 1800s. And after you get Lincoln, people are like, and there were some presidents. None of them really stand out. You got the Tyler guy and you got the Van Buren guy. You get all those guys. And people go, "Hey." There were some presidents in the middle. Then you get to Roosevelt, and they start paying attention again. I feel like that way with the courts.
J. Aughenbaugh: It's funny you mentioned that Nia, because listeners, we've had our colleague Bill Newman on and Bill Newman teaches the presidency, and Bill and I have both commented that when we discuss the presidency, an intro to US government or even in his presidency class, there are these huge decades of the 19th century where when we were discussing presidents, we had a string of perfectly mediocre individuals.
N. Rodgers: Exactly. They're not bad. They're just not outstanding. They don't particularly stick in your brain. I call them the boring presidents in the middle, because I think that's fairly accurate. They didn't ruin the United States. They didn't destroy anything.
J. Aughenbaugh: Again, I like the comparison. Because listeners the previous episodes, we just got done talking about Chief Justice Roger Tawney, and then Chief Justice Simon Chicks. And before that, we had John Marshall, the big one.
N. Rodgers: Between John Marshall and Earl Warren, there were chiefs.
J. Aughenbaugh: There were chiefs. Some of them, as we will discuss in the episodes, we should probably remember them better.
N. Rodgers: Just like the presidents. There were probably things they did that were good and interesting and smart for the country and all that kind of stuff. But we're just like and then Lincoln and then Roosevelt. Wait, wait. There were people between. Please if you're a fan of McKinley or Cleveland or any of those, please, I'm not insulting. I'm not trying to be ugly about them. I'm just saying your average American who's naming presidents.
J. Aughenbaugh: Yes. It's not going to mention them. If they are your ancestors, we are not besmirching your family line.
N. Rodgers: You're important, too, but the average person, when you say, Chief Justice Morrison Remick Mott, wait. They go. Who? Now, first of all, that's a fabulous name. Morrison Remick Mott, which was his nickname. Mott.
J. Aughenbaugh: Mott. Yes.
N. Rodgers: That's a great name, but he's, I think, lost to most history except for lawyers and people who study the court like you do.
J. Aughenbaugh: Yeah, Court watchers.
N. Rodgers: Is he even important? How long was he on the court?
J. Aughenbaugh: What was he on the court? Fourteen years. 1874 to 1888. That's 14.
N. Rodgers: Yep.
J. Aughenbaugh: Nia and I both had this moment.
N. Rodgers: A math moment. We're like, wait, wait. Do I have enough fingers to make this work? Yeah. That's a pretty lengthy.
J. Aughenbaugh: It wasn't like he was on the court only for three or four years and then unexpectedly died. Again, this is an era of the court where, in part, I think one of the reasons why we don't remember the Morse and Wade court is that many scholars have a less-than-positive analysis of what the court did. The institution did not fall apart. But in terms of some of its rulings and how the court was transitioning post-Reconstruction, a lot of scholars are like, hey, they could have done a little bit better job here at protecting the rights of recently freed slaves, the freed men. The Wade court, in particular, began a period of where the civil rights amendments received really narrow interpretations, and a lot of scholars, particularly by today's standards, are less than generous in their analysis.
N. Rodgers: We were sliding into that with Sam and Chase, and it sounds like Morse and Wade kept that ball rolling in that direction of very narrow, and part of why these guys suffer modernly is that we now know the mistakes they were making. But at the time they were under a different set of pressures and living in a different world. They really did come from a very different time. And while that doesn't make what they did necessarily right, it does make it understandable. If you were living in your time, we tend in the modern world to look back on things and say, well, that's just patently wrong. Well, yeah, by modern understanding and modern standards, it is patently wrong. But by their standards and their time, maybe not as much.
J. Aughenbaugh: Nia, the point you're making here is one that many of us who teach, for instance, constitutional law, have to remind our students that when we read a court case or we see a particular Supreme Court issue rulings, and we look at it from our perspective, and we're critical, and we think, they could have done better, but I asked them to just pause and think about if you were on the court in this particular instance in the last quarter, of the 19th century. And what were the values? What were the dominant paradigms and ideologies? If you were a person of that time, would you have been able to decide differently?
N. Rodgers: And would you have been anything other than incremental? Remember, you're coming off of the biggest conflict and the most American deaths in the history of the country, not just up to that point, but now actually still true. And I think a lot of what they were trying to do was incremental in part because there had been such upheaval that they were, you know what I mean? They didn't want to add to the swirl in the pot. They wanted to calm the pot down and try to find a way through. We can say that we disagree, and I do disagree with some of their rulings. I also understand why their urge to stand mostly still and try to be as incremental as they could be would be, I think, natural in what they had just lived through.
J. Aughenbaugh: Because many people, in responding to a crisis or a huge upheaval, want things to return to "normal."
N. Rodgers: Or as close to that as they can get.
J. Aughenbaugh: But there's a reason why the Civil War did take place. One of the reasons why was that an entire race of people were second-class citizens.
N. Rodgers: If you don't like.
J. Aughenbaugh: Well, the civil wars fought. We have the Civil War amendments, and potentially, they offered so much promise, particularly to former male slaves. But then after the Chase Court, you had successive courts, and we'll discuss this with the next court in our next podcast episode. But you have these next courts who are like, okay, wait a minute here. Let's tap the brakes. We just came careening down this big hill, driving an automobile metaphor.
N. Rodgers: Or a train metaphor?
J. Aughenbaugh: A train metaphor. You're the engineer. You're calling out to the brakeman, hey, can you apply the brakes.
N. Rodgers: Can we slow it down just a little? And there's some of that that's just, I think, natural in that post. But Morrison Waite. Where was Morrison Waite born? And when was Morrison Waite born?
J. Aughenbaugh: Well, he was born in 1816 in Lyme, Connecticut.
N. Rodgers: Lyme.
J. Aughenbaugh: I'm sorry, I'm laughing because as somebody-
N. Rodgers: It's great.
J. Aughenbaugh: He grew up in a rural part of the United States. Lyme disease is a real thing.
N. Rodgers: Exactly. So he graduates from Yale. Even though he comes from a small town, he's a well-educated individual. Yale is a big deal school. Even then, Yale was a big deal school.
J. Aughenbaugh: And he moved to Ohio to establish a legal practice. He was a member of the Whig Party and served in the state legislature in Ohio. He was an opponent of slavery. And he helped form the Ohio Republican Party, which, listeners, you may recall, so did the previous Chief Justice, Sam and Chase. He was pretty active in state politics.
N. Rodgers: I think it should be noted, he presided over the 1873 Ohio Constitutional Convention, so he's the founding document of Ohio. He's been a pretty big player.
J. Aughenbaugh: But we're setting you up, listeners, because on one hand, he was prominent in Ohio politics, and he was well known in Ohio politics.
N. Rodgers: But everywhere else, people said who?
J. Aughenbaugh: And what's fascinating here is, and again, we're setting you up, listeners, this was one of those rare times where it's almost scripted in my research notes. Sam and Chase serves until 1873. The president at that time was Grant, Ulysses S. Grant, who was prominent in the Civil War as a general for the Union forces. Grant had extreme difficulty appointing people to the Supreme Court.
N. Rodgers: Well, first of all, one could argue that by adding a ninth justice, he was packing the court. Well, he was trying to get leverage for the Republican Party.
J. Aughenbaugh: Well, we talked about this in the previous podcast episode. During the Chase court, the United States Congress got upset with some of the courts post-Civil War rulings. They first punished the court by removing a seat, and then, when the court started acting appropriately, they added back two seats. It went up to 10, and then the court or the Congress finally settled on nine justices. While all this is going on, as vacancies occurred on the court, Grant had all of these vacancies to fill, and he wasn't always successful in his picks. In one case, the Senate rejected, I got to say the name. The Senate rejected Ebenezer R. Hoar's nomination.
N. Rodgers: H-O-A-R, even though it may sound different.
J. Aughenbaugh: Hoar.
N. Rodgers: Ebenezer.
J. Aughenbaugh: Ebenezer.
N. Rodgers: You know that Aughie and I love a good name.
J. Aughenbaugh: Then he put on other justices. He put on William Strong, Edwin Stanton, Joseph Bradley, and then Ward Hunt. But then Chase dies. It took Grant, what, seven or eight months, and he went through other names. He considered other people, and in one case, he actually nominated his attorney general, and the Senate balked because they didn't think his attorney general had qualifications to serve on the Supreme Court.
N. Rodgers: Was that Caleb Cushing?
J. Aughenbaugh: Yes.
N. Rodgers: Another great name, Caleb Cushing. But yeah, you're good enough to be attorney general, you're not good enough to be chief from the Supreme Court.
J. Aughenbaugh: The attorney general had quality legal qualifications to serve on the court.
N. Rodgers: How are you, attorney general, if you don't have a good legal qualification? That's hilarious.
J. Aughenbaugh: Yes. The research that I did, Grant reportedly offered the Chief Justice nomination to four people. I love this. He offered it to Senator Roscoe Conklin, Senator Oliver Morton.
N. Rodgers: Attorney General George H. Williams?
J. Aughenbaugh: Yes. And a sitting Associate Justice, Noah Swain and was rebuffed. Nobody wanted to be the Chief Justice.
N. Rodgers: You have to wonder why they were all like, nah, I don't want that job.
J. Aughenbaugh: The funny thing is Grant withdrew his nomination of Cushing when allegations arose that Cushing actually had extensive correspondence with Jefferson Davis, who was the president of the Confederacy at the start of the Civil War.
N. Rodgers: For Listeners now, the equivalent of that would be Donald Trump nominates John Aughenbaugh to be on the Supreme Court and then it comes out that his Twitter, before it was X, his Twitter account, said Donald Trump is a rat fink and should never be in charge of anything. John Aughenbaugh has to withdraw because his way old commentary, remember, this is ten years before that he's had these conversations with Jefferson Davis, but it is enough to taint his nomination. That's how hard the feelings still are in the Senate about Jefferson Davis and about the Confederacy. That would be the modern equivalent. Would be somebody digging up Aughie or he doesn't get hired for a job because his Instagram shows him naked on a beach in Bermuda with 18 beers poured around, whatever. They be like, you probably can't be for this job. Think about that in terms of what you're doing now as a 19-year-old, putting on your Instagram and your job when you turn 30 and somebody wants to hire you and they look back at your 19-year-old Instagram and go, maybe not. Just saying those things have been happening for better than 100 years in our country in terms of, we don't think you're fit because of these things you did in your past. Whether it's fair or not.
J. Aughenbaugh: The Senate at that time was controlled by radical Republicans. These were people who were vehemently opposed to anything having to do with Confederacy. Grant goes through all these mechanations, and he finally settles on Morse and Waite. I love the quote from the Associated Press, the day Waite's nomination was announced. "Many inquiries were made as to the standing of this gentleman, he not having a national reputation."
N. Rodgers: Basically, what the AP said is the Senate said, "Who?" The constant message, I think, that one could take away from Chief Justice Waite is that basically who? He comes out of seemingly nowhere. He's not seemingly nowhere, use in Ohio, he's known. He's clearly well known. I think sometimes people think my senator from my state is well-known, Senator Cain, Senator Warner are the Virginia senators.
N. Rodgers: They're well known. I challenge you to ask someone from Colorado who the senators from Virginia are. Because if you ask me who the senators of Colorado are, I go, oh. I don't know. Being a big deal locally has nothing to do with being a big deal nationally.
J. Aughenbaugh: You think Nia about the fact that you and I generally follow politics pretty regularly. It's part of my job, etc. I can tell you right now, if somebody went ahead and said, who are the two senators from North Carolina? I think I can name one of them. That's the state immediately south of Virginia. I'm not entirely sure who the senators are from Maryland. I could easily look it up. That's a nearby state.
N. Rodgers: Everybody knows Thom Tillis because he's getting ready to retire and so he's made some choices, but nobody knows Ted Budd. Who? I'm not saying that to slam Ted Budd, who's probably a perfectly nice person. I don't know Ted Budd. Anyway, I like that. He not having a national reputation, which is a really nice way of saying. Who?
J. Aughenbaugh: That said, listeners, we should put a postscript on the nomination saga. The Senate was so happy to actually get a nominee that didn't have any issues that the Senate unanimously accepted or confirmed Morrison Waite the following day.
N. Rodgers: The following day, they didn't even bother to find out about the guy. They're like, we don't know him. But if we don't know anything bad, it must be okay.
J. Aughenbaugh: Finally, we got somebody that doesn't have any stink, any issue.
N. Rodgers: Who won't say no. It's hilarious. He served for 14 years. What's his percentage of opinion writing? Because we now do that modernly. If you're not a regular listener, one of the things that we have every summer.
J. Aughenbaugh: Shame on you if you're not.
N. Rodgers: Says the Catholic who works in guilt. But at the end of the summer of Scotus every summer, we do what percentage people wrote. How many things they wrote because the Chief Justice decides who gets to write the opinion.
J. Aughenbaugh: If they're in the majority.
N. Rodgers: If they're in the majority. If they are not in the majority, then whoever is the senior person in the majority gets to decide who writes. But more and more, the major the chief is in the majority. But anyway, that's a whole separate issue. Did he write a lot or did he hand off a lot?
J. Aughenbaugh: Listeners, the reason why Nia is pointing this out is that the current Chief Justice of the US Supreme Court, John Roberts, increasingly writes very little. He uses the opinion assignment, if you will, authority to spread the wealth. John Roberts, this most recent term, wrote the list.
N. Rodgers: Or avoid the blowback. You could argue it either way.
J. Aughenbaugh: He wrote the least out of all the justices. That was not Morrison Waite, shall we say, modus operandi. He wrote 28% of all of the opinions of the Waite Court. For somebody who had next to no national reputation. Now, interestingly enough, almost every scholar that I read said, he wrote a lot, but he was not the most important intellectual force on the court. He was better known as an administrator and actually getting the justices to compromise. Because he was one of the rare members on the Waite Court who seemed to have some recognition that the United States required a balancing of federal and state power. But the court during Waite's tenure is decided over 3,400 cases.
N. Rodgers: Now, I'm going to guess that John Roberts is somewhere around 1,000. Got 70 a year.
J. Aughenbaugh: Seventy a year. He's been on the court since 2005.
N. Rodgers: Twenty years. My bad 1,400.
J. Aughenbaugh: 1,400. But again, that's 20 years, Nia.
N. Rodgers: Right. In 14 years, they did almost double.
J. Aughenbaugh: Yes.
N. Rodgers: This thing where people are saying the court's not taking nearly as many cases, they're right. The court is not taking nearly as many cases.
J. Aughenbaugh: This is where we're going to talk institutionally about the court. The reason why you see this explosion in the number of cases, post civil war, is one, there was no longer a war, so there was much more litigation occurring in the country. That's always a good sign that the country is not in a war.
N. Rodgers: It's rebounding with lawsuits.
J. Aughenbaugh: But people are back to the daily grind.
N. Rodgers: Of suing each other. Or suing the government.
J. Aughenbaugh: But having more normal interactions, and many of those interactions, lead to conflicts. We do live in the United States. Historically, we have intensity to take our conflicts where? To court.
N. Rodgers: Most litigious society probably in the history of societies.
J. Aughenbaugh: Of all civilized societies. But it also reflects the fact that at that time, the US Supreme Court had very little discretion over the appeals. It's not until 1925, Nia, that one, the Congress gave the Supreme Court authority to decide what appeals. Moreover, not until the next Supreme Court era, the Fuller court, did the Congress go ahead and create a large number of appeals courts. If there were appeals from district courts, they were going directly to the US Supreme Court and the Supreme Court did not have authority granted by Congress to go ahead and say, now, we're not going to hear that.
N. Rodgers: We can't be bothered with this district level. I see. We don't have that middle layer established yet of the appeals courts. That's part of why they're so busy.
J. Aughenbaugh: Yeah. But it also reflected weights, if you will, propensity. He may not have been much of an intellectual, but he was known as a great administrator. His work ethic, almost every scholar that I read about Morrison Waite, there were, like, his work ethic was excellent.
N. Rodgers: He turned him around pretty quickly. Yes. He, I assume encouraged others to do the same.
J. Aughenbaugh: That's right.
N. Rodgers: I assume he stuck his head in people's offices and said, You got that opinion for me yet? Sir, you gave me that case yesterday. Yes,. But we got to get through 3,400 cases. You need to get on it, buddy. Chop chop. I'm sorry, I'm not going to be able to do the math in my head. I thought I could do the math in my head, but I can't. 3470/14 is 247 cases a year.
J. Aughenbaugh: Yes.
N. Rodgers: That's probably a case for just about every day they were actually in session.
J. Aughenbaugh: Think about this, listeners. He wrote an opinion in nearly a third of that.
N. Rodgers: Yeah, 28%. Holy cow.
J. Aughenbaugh: That is remarkable output.
N. Rodgers: It's a lot of work.
J. Aughenbaugh: That's volume. Now let's talk about, shall we say the quality?
N. Rodgers: That's quantity. What was the quality?
J. Aughenbaugh: Probably his best known majority opinion and I apologize for my listeners who are former students of my administrative law course because we actually discuss it in my administrative law course. His probably best known majority opinion was in the case of Munn versus Illinois, which upheld state government regulation of grain elevators and railroads. Why this was noteworthy was that the court went ahead and said that business interests could be regulated by states per the state's police power. At least initially, the Morison Waite Court. I'm foreshadowing what we're going to discuss in our next podcast episode. The Waite court again, this is the beginning of industrialization, Nia. One of the questions was, could the government regulate this new form of economy? If so, which level?
J. Aughenbaugh: The Waite Court said, we don't know about the feds, but state governments can regulate railroads, grain operators, etc., per their police power on behalf of the collective.
N. Rodgers: Under the 10th Amendment.
J. Aughenbaugh: Per the tenth. Again, this is one of those landmark cases in administrative law.
N. Rodgers: Because that has huge effect on the Commerce Clause. That's enormous.
J. Aughenbaugh: Yes. For our liberal listeners who don't like the idea that corporations are considered people in American law.
N. Rodgers: Citizens United.
J. Aughenbaugh: Before Citizens United was decided this millennium, the Waite Court went ahead and held in a number of rulings that corporations were persons per various clauses of the US Constitution, including the due process clauses.
N. Rodgers: But if you hold that corporations are people, then they should be subject to the same laws that people are subject to. That sword cuts both ways. Yes, they can give money into politics, but they can also be punished as if they were individuals when, for instance, they pollute the air, they can be punished. Corporations can be punished for that.
J. Aughenbaugh: If a legislature passes such a law. Occasionally, corporations want to have it both ways. We want individual protection per the Constitution, but we don't want individual responsibility. But you make a good point. That is the flip side of granting corporations personhood, which means legislatures, if they can be motivated to do so, can pass laws that hold corporations criminally liable for their behavior. But that begs the question, can you convince legislatures legislators who have been given campaign donations by corporations to regulate their behavior criminally?
N. Rodgers: To bite the hand that feeds them. Some you can, because some politicians will bite the hand that feeds them.
J. Aughenbaugh: However, we should note the Waite Court was the court that held that the Civil Rights Act of 1875, which would have prohibited discrimination in the private sector, was unconstitutional.
J. Aughenbaugh: This is where the court creates what's known as the state action doctrine. I'm going to explain the civil rights cases of 1875. After the Civil War, the United States Congress passed two Civil Rights Acts. One of which said that private sector businesses that provide public accommodations could be sued for violating the 14th Amendment's Equal Protection Clause, meaning that private sector businesses could not discriminate, for instance, on the basis of race among their customers. If you were a theater.
N. Rodgers: Is the fairgrounds.
J. Aughenbaugh: I was going to go with a theater, but I will go with fairground. But let's just say a fairground.
N. Rodgers: Privately owned, but you invite the public to come to your fairgrounds to enjoy the fair, you don't get to say except for Brown people. They don't get to come.
J. Aughenbaugh: That's right.
N. Rodgers: If you're open to one, you have to be open to everybody.
J. Aughenbaugh: In the civil rights cases which was decided in 1883, the court said that the Civil Rights Act of 1875, which required you to comply with the 14th Amendment's Equal Protection Clause was unconstitutional because they said unless it was state action, the private sector could continue to discriminate based on race or other, if you will.
N. Rodgers: Religion, ethnicity, gender.
J. Aughenbaugh: That ruling was not effectively overturned until Congress passed the Civil Rights Act of 1964, and I know that [inaudible]. But the basis, the constitutional authority of the Civil Rights Act was the Commerce Clause.
N. Rodgers: That doesn't bother me. What bothers me is that there was an opportunity 100 years earlier to fix that, correct? But I was making faces, and I hate that everything comes back in the Commerce Clause because what we should say our society is capitalist to the extent that everything comes back to capitalism.
J. Aughenbaugh: Including the landmark civil rights law of this country. Yes.
N. Rodgers: Fine. It does good things, too.
J. Aughenbaugh: No. Nia, you're misinterpreting me here, I agree with you. This is a pretty sad commentary on the United States, where we have to use the Commerce Clause to achieve racial equality. The Supreme Court in the 1880s had an opportunity to deliver on the promise of the 14th Amendment, and they passed. That requires 80 more years of private businesses engaging legally, constitutionally, being able to engage in racial discrimination.
N. Rodgers: Which is why you get the Green Book. It's why you get a lot of things in that time period where people are like, here you can go and you will be treated as an equal, and here you can go and you won't be.
J. Aughenbaugh: Then this had huge impacts. Nia you just mentioned the Green Book, it had huge impacts in terms of accommodations. Hotels, motels, restaurants. If you're traveling across the United States and you were a person of color, in the late 1800s, throughout a good chunk of the 1900s, you had to know what establishments would serve you would give you a room for the night and which ones didn't.
N. Rodgers: Were you could be safe and where you couldn't, and which towns were sunset towns? You have to be out of town by sunset and that stuff. Go ahead.
J. Aughenbaugh: There are a couple more well known cases that I wanted to go ahead and mentioned. Again, they don't speak well of the Waite Court. In 1875, US versus Cruikshank. This is the case where the Supreme Court overturned the convictions of three men who killed more than 100 African Americans in what was known as the Colfax Massacre. What Waite said was that the Federal Constitution's 1st, 2nd and 14th Amendments did not apply to individuals at the state level. The Waite Court had an opportunity to incorporate the Bill of Rights as enforceable at the state level. Again, they took a pass. We don't get this incorporation, albeit at a piecemeal level until the 1920s, 30s, 40s and 50s. What Nia is giving me this, okay Aughie, you need to explain this. The Supreme Court in 1833 said that the Bill of Rights did not apply to state governments. That was Barron versus Baltimore. Now, you get the Civil War, you get the 14th Amendment, and there was the hope that the 14th Amendment would now make applicable to state government operations, including criminal trials, the Bill of Rights. What the court said in Cruikshank was no. Again, think about getting justice for the families of those 100 African Americans who were murdered.
N. Rodgers: Which is doesn't happen.
J. Aughenbaugh: That's right. The other one, and again, this next example is, again, a black mark on the history of the US Supreme Court.
N. Rodgers: 1875 was not a good year for the Waite Court.
J. Aughenbaugh: It was not because Minor versus Hepers for our listeners who have taken women in the law, you probably have heard this case. The Waite Court said the 14th Amendment did not guarantee that women had a right to vote in elections. There is a quote, being unanimously of the opinion that the Constitution of the United States does not confer the right of suffrage upon anyone and that the constitutions and laws of several states which commit that important trust to men alone are not necessarily void. Yes.
N. Rodgers: Bite me, Waite.
J. Aughenbaugh: This does not change until the19th Amendment gets ratified in the 20th century. Yes.
N. Rodgers: Yes. The thing about that, to me, that's so frustrating about both of those cases is the opportunity to do the right thing and failing to do so especially from a person who was anti slavery, who was I don't know. You would think that it would have mattered to him, but I don't know what the pressures were on him, and I don't know what the social pressures of the day were on him. But there's a part of me that thinks this could have been 100 years earlier.
J. Aughenbaugh: This is another good example.
N. Rodgers: We could be 100 years further along in this process.
J. Aughenbaugh: It reminds me of the old adage, it's referred to as MILS Law where you stand depends on where you sit. Where you stand on an issue depends on behind what desk you sit as a government official.
N. Rodgers: We talked about that in the last court, as well.
J. Aughenbaugh: That's right. Sam and Chase. This happens a lot with Supreme Court justices, because if you look at what they did in their political or other government positions, in Waite's case, you'd be like, hey, this guy was antislavery.
N. Rodgers: He's clearly going to be forward thinking in terms of civil rights.
J. Aughenbaugh: Expand individual rights etc. Then he gets on the court and his court basically takes a whole bunch of passes at opportunities to expand individual rights.
N. Rodgers: Coward. Maybe not. I shouldn't label him a coward because I don't know what as I said, what the pressures were of his time. But looking back on him, I would label him.
J. Aughenbaugh: Again, hindsight is 2020, and it's really easy from today's position to go ahead and say,.
N. Rodgers: You could have fixed this, and you did it.
J. Aughenbaugh: If I was sitting on the court at that time, I'm like, okay, but do you know that?
N. Rodgers: Do you know that for sure?
J. Aughenbaugh: Yes.
N. Rodgers: Exactly.
J. Aughenbaugh: There's a couple other things I want to note before we conclude our episode about particularly Morse and Wait. In 1876, President Grant decided not to run for a third term, so he basically followed the behavioral norm created by previous presidents George Washington, Thomas Jefferson etc.
N. Rodgers: He hadn't been in some social trouble? Wasn't there like George Washington, and he was all like, that guy.
J. Aughenbaugh: Grant at that time was already beginning to suffer from esophageal cancer.
N. Rodgers: I thought he had some scandals.
J. Aughenbaugh: His administration was full of scandals. Grant wasn't really good at picking talent.
N. Rodgers: He does not have a national reputation chief justice. Not Grant necessarily, but Grant's administration struggled with, so he might have lost a third election.
J. Aughenbaugh: He might have, and then also, too, Grant did struggle with the battle with the bottle he drank a lot.
N. Rodgers: I didn't realize that, did he?
J. Aughenbaugh: Yes. Many Republican Party reached out to Morse and Waite, but he refused to be considered for the Republican Party nomination for president, saying that he thought it was honorable to serve as a Chief Justice.
N. Rodgers: I like the quote you have in. Can I read it in the notes? My duty is not to make it a stepping stone to someone else, but to preserve its purity and make my own name as honorable as that of any of my predecessors.
J. Aughenbaugh: Yes.
N. Rodgers: I like that. I like that he's like, this was not I didn't take this job to get a different job. I took this job to do this job. I think that's probably pretty unusual in American politics that you're not taking a job to get a different job.
J. Aughenbaugh: Yes.
N. Rodgers: Waite makes me crabby. At the end of his life, he was sick and he should have stepped down. But he was that guy. I understand why people want somebody on the court who's beloved or somebody on the court who's been there forever to stay forever. But sometimes it's good to know when it's time to go. The best party guest is the party guest who consents, now's the time to leave. I'm at that sweet spot. I haven't stayed too short a time to be insulting, but I'm not overstaying my welcome.
J. Aughenbaugh: You know how I feel about this. I hope that I stepped down before, the quality of my work suffers.
N. Rodgers: Before you become that doddering old professor that people laugh at behind their hands. You don't want to be that guy. You want to be the guy who leaves when he's sharp as attack, so people go, man that guy is sharp as attack.
J. Aughenbaugh: In the research that I did, he probably should have stepped down at least two, if not, three years before he died in office, and he did die in 1888. He was suffering from complications due to pneumonia.
N. Rodgers: He died in March, so pneumonia, not a huge surprise. March in DC would be horrible.
J. Aughenbaugh: He was one of the first chief justices to have their funeral in the chamber of the House. That's the representatives which now it's commonplace.
N. Rodgers: He was 72 which in his day was pretty old.
J. Aughenbaugh: Again, if we're offering a summer remark here, the Waite Court had opportunities to further civil rights in the United States, and though I can understand some of the pressures because they didn't take those opportunities, as we will discuss in our next episode. It leads to a very conservative court going even further in some directions, and it really postponed civil rights and human rights in the United States by decades.
N. Rodgers: The US is a leader in that, so it didn't just do that in the United States?
J. Aughenbaugh: Yes.
N. Rodgers: He did around the world like we're not the only country, but we're a big leader treating people with equality and equity and being good to people in general, and that was a missed opportunity.
J. Aughenbaugh: That's the thing about government institutions. On one hand, you have to think about what you need to do the daily job. But government institutions make decisions that can have ripple effects that extend well beyond the current year, decade, and it can affect generations, and this is a really good example.
N. Rodgers: See our recent episode on the ballroom building.
J. Aughenbaugh: Yes.
N. Rodgers: What's happened to the White House? That's going to be generational change, but anyway, thank you, Aughie. Matt Waite.
J. Aughenbaugh: Yes.
N. Rodgers: Who answered the question of who maybe not in the best ways we could have hoped, but probably a man of his time.
J. Aughenbaugh: Yes. Again, listeners, we'll see you next time for our next episode in the Eras of the Court, where we look at Melville Fuller.
N. Rodgers: Melville Weston Fuller.
J. Aughenbaugh: Fuller.
N. Rodgers: We got live named our three named people.
J. Aughenbaugh: Yes.
N. Rodgers: Thanks, Aughie.
N. Rodgers: Bye Nia.