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Erik Visits an American Grave, Part 252

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This is the grave of Melville Fuller.

Arguably the worst Supreme Court justice of all time, Fuller was born in Augusta, Maine in 1833. He graduated from Bowdoin in 1853, briefly attended Harvard Law, ran a newspaper in Maine for awhile, moved to Chicago and got involved in Democratic politics. In 1860, he was Stephen Douglas’ campaign manager. He also started his own law practice there and rapidly became one of the city’s top lawyers. Fuller was a minor Illinois political figure, serving a bit of time in the state legislature and was a delegate to several Democratic conventions, giving the nomination speech to support the candidacy of Thomas Hendricks in 1876. Basically, Fuller was a well-connected lawyer. And he was racist. He was a delegate to the 1862 Illinois constitutional convention, where he fought to ban black people from living in Illinois entirely and then when he couldn’t win that, to ban them from voting. He described the Civil War as the “fanatical and hot-headed course of the abolition madmen” and called the Emancipation Proclamation, “unconstitutional, contrary to the rules of civilized warfare….calculated to bring shame, disgrace and eternal infamy” on the nation. Is this the guy you would want on the Supreme Court deciding the rights of African-Americans after the war? If you are a Gilded Age politician, the answer is yes!

When Grover Cleveland won the presidency for the first time, there were a lot of conservative Democrats that the president wanted to reward. One was Fuller. But Fuller held out for a big job. Cleveland asked him to be the head of the Civil Service Commission, but he said no. He also declined an appointment to be Solicitor General. Finally, when Chief Justice Morrison Waite died in 1888, Cleveland nominated Fuller to replace him after Edward Phelps, the US ambassador to England, declined the job because he thought he might hurt Democratic turnout among the Irish in upcoming elections. Naming Fuller Chief Justice is probably the worst thing Cleveland ever did, although there is no shortage of competition for that title. There was some resistance and a pretty intense campaign to argue that Fuller didn’t fight in the Civil War because he was a Copperhead (northern Democrat with southern sympathies). And while that was true, it didn’t stop him from being confirmed.

Now, effectively the entire Supreme Court was terrible in the Gilded Age. Republicans and Democrats nominated right-wing judges who undermined any attempt at reform, approved of a legal code based on racism, and interpreted laws to benefit corporations. So there is plenty of blame to go around for what happened to the nation during the Gilded Age. But no one deserves more blame than Fuller, although a couple of others are his equal in evil.

We can start with his most infamous case, Plessy v. Ferguson. Again, that was an 7-1 decision; ironically it was the former slaveholder John Marshall Harlan who sided with Homer Plessy. That decision is famous for its “equal but separate” clause in the majority decision authored by Henry Brown (not “separate but equal” as usually believed). So let’s move into a vacuum and assume that equal and separate was an actual theoretical possibility. A case I find perhaps even more disgusting is Plessy’s follow-up, 1900’s Cumming v. Board of Education of Richmond County, which was about a Georgia county simply not providing separate or equal. In other words, the county closed the black high school. The Fuller court ruled 9-0 that this was fine. In other words, equal but separate was meaningless in the face of the higher constitutional principle of white supremacy. And then in Hodges v. U.S., the Fuller court ruled Congress did not have the right to interfere with racially motivated work exclusions after three white Arkansas men had been convicted for violating the 13th Amendment when they drove black workers out a sawmill, denying them their citizenship rights.

It certainly wasn’t just black people the Fuller court sought to oppress. In 1889’s Chae Chan Ping v. U.S., the court ruled Chinese exclusion constitutional. In 1898’s U.S. v. Wong Kim Ark, the court ruled 7-2 that birthright citizenship did include the Chinese–but Fuller was one of the dissenters! In Lone Wolf v. Hitchcock, the Fuller court effectively threw out the Marshall court’s decisions on negotiating treaties with Native Americans, ruling that the federal government could unilaterally breach those treaties and simply steal reservation land without compensation. The Fuller court also effectively threw out the guarantee of New Mexican land grants in the Treaty of Guadalupe Hidalgo, allowing the great land grant thief Thomas Catron to go ahead dispossessing New Mexicans of their land, more or less the national forests and wilderness areas of northern New Mexico today.

On economic questions, the Fuller court was just as reactionary as on racial ones. In Pollock v. Farmers’ Loan and Trust Co., the court ruled the income tax unconstitutional, which eventually could only be rescued from this Court by the 16th Amendment. It’s also worth noting that for a long time, the income tax was perhaps the nation’s most popular economic policy. Fuller himself wrote that decision and effectively declared all direct taxes from the federal government out of bounds. Good luck creating an effective central government! In U.S. v. E.C. Knight Co., the Fuller court effectively ruled the Sherman Antitrust Act into oblivion; while not quite ruling it unconstitutional, it said that monopoly over manufacturing could not be covered by the Sherman Act. Fuller wrote that opinion too. Of course, the same Court would interpret the Sherman Act very broadly to crush any union activity that might get in the way of interstate trade, such as in Loewe v. Lawlor in 1908, ruling secondary boycotts violations of the law. That was another Fuller-written decision.

And of course there was the infamous Lochner decision, throwing out New York’s Bakeshop Act that limited the hours that bakers could work. That decision, authored by Rufus Peckham but with Fuller on board, codified the idea of free contract, that employers and employees were people of equal power and if an employee agreed to work a 90 hour week for $1, well, that was the employee’s choice since they have the liberty to say yes or no. Nowhere in this definition of liberty was poverty, coercion, or desperation. Then in Adair v. U.S., the Fuller court ruled the ban on yellow-dog contracts, where workers have to agree to not join a union as a condition of employment, unconstitutional. Freedom of contract only mattered when it helped employers.

In short, Melville Fuller was Neil Gorsuch in charge of a Supreme Court full of Neil Gorsuch clones. Fuller is the model for Republican-appointed justices today. This is the future of the nation under Republican control.

There was a chance to save the nation from more of Fuller, when Cleveland offered him the State Department in 1893, but unfortunately, he declined. Cleveland would have named someone equally terrible anyway. He stayed in the office of Chief Justice until his death in 1910.

Melville Fuller is buried with his second wife in Graceland Cemetery, Chicago, Illinois. The ridiculous words, “Justice-Mercy-Love” carved on his tombstone is no doubt him laughing at all of us from Hell.

If you would like this series to visit more of our most disgustingly racist corporate hack Supreme Court justices, you can donate to cover the required expenses here. Roger Taney is buried in Frederick, Maryland and James McReynolds is in Elkton, Kentucky. I’d love to chronicle the horrors of these men. Previous posts in this series are archived here.

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