January 19, 1874 – Morrison Waite Nominated as U.S. Supreme Court Chief Justice

On this day in history, President Ulysses Grant nominated Morrison Waite, an attorney and politician from Ohio, to serve as the seventh Chief Justice of the U.S. Supreme Court. Waite was far from Grant’s first choice.

Chief Justice Salmon P. Chase had died in May 1873, and Grant waited six months before first offering the seat that November to Senator Roscoe Conkling of New York, who declined. Grant next offered the Chief Justiceship to Senators Oliver Morton of Indiana and Timothy Howe of Wisconsin, then to his Secretary of State, Hamilton Fish. He nominated Attorney General George H. Williams on December 1, but withdrew the nomination a month later at Williams’ request after charges of corruption made his confirmation all but certain to fail. One day after withdrawing Williams, Grant nominated former Attorney General Caleb Cushing, but withdrew it after Republican Senators alleged Civil War-era connections between Cushing and the Confederate President Jefferson Davis. Finally, after persistent lobbying from Ohioans, Grant nominated the little-known Waite.

The former Secretary of the Navy, Gideon Welles, remarked of Waite that, “It is a wonder that Grant did not pick up some old acquaintance, who was a stage driver or bartender, for the place.” But Waite was non-divisive, and perhaps more importantly, willing, and he was confirmed unanimously as Chief Justice on January 21, 1874, receiving his commission the same day. Waite took the oath of office on March 4, 1874.

Chief Justice Morrison Waite

Chief Justice Waite never became a significant intellectual force on the Supreme Court. But his influence was significant. During Waite’s tenure, the Court decided some 3,470 cases, the opinions for one-third of which Waite drafted himself.

A primary theme in his opinions was the balance of federal and state authority. He upheld states’ rights in cases such as United States v. Cruikshank, 92 U.S. 542 (1875) in which the Court overturned the convictions of three men accused of the murder of at least 105 blacks (and perhaps up to 300) in the Colfax massacre at the Grant Parish, Louisiana, courthouse on Easter 1873. Waite intoned:

Sovereignty, for the protection of the rights of life and personal liberty within the respective States, rests alone with the States.”

At that time, of course, and for almost the next one hundred years, the southern states ignored the violence against and intimidation of blacks, and indeed, were sometimes complicit in it.

United States v. Cruikshank regularly makes the rankings as one of the worst Supreme Court decisions in American history. The fact that the perpetrators of the violence were never convicted of a crime served to embolden terrorist organizations like the Ku Klux Klan and other groups seeking to restore racial hierarchy to the South.  
 
Waite also authored the opinion in Minor v. Happersett (88 U.S. 162, 1875), upholding the states’ right to deny women the franchise. He observed in part:

… 3. The right of suffrage was not necessarily one of the privileges or immunities of citizenship before the adoption of the fourteenth amendment, and that amendment does not add to these privileges and immunities. It simply furnishes additional guaranty for the protection of such as the citizen already had.
4. At the time of the adoption of that amendment, suffrage was not coextensive with the citizenship of the States; nor was it at the time of the adoption of the Constitution.
5. Neither the Constitution nor the fourteenth amendment made all citizens voters.
6. A provision in a State constitution which confines the right of voting to “male citizens of the United States,” is no violation of the Federal Constitution. In such a State women have no right to vote.”

Even after suffering a breakdown in his health, Waite refused to retire. Almost to the moment of his unexpected death from pneumonia in 1988, he was still drafting opinions and leading the Court.