A Biography of a Republican Chief Justice from the Good Old Days

Bruce R. Trimble. Chief Justice Waite: Defender of the Public Interest. Princeton: Princeton University Press, 1938.

Morrison Waite was Chief Justice of the U.S. Supreme Court from 1874 to 1888.  He was thought my many as a balance on the court between liberalism and conservatism, and between state rights and nationalism.  Critics claimed his appointment was supported by the railroad interests.  The author considers these opinions as wrong despite the author’s observations that his rulings were often seen as being in favor of business and conservative interests that included railroad companies.

Waite grew up in Lyme, Ct. in a religious family.  His father, Henry Matson Waite, was Chief Justice of Connecticut, having previously been a state legislator and State Senator. He had a mild manner that critics claimed made him unsuitable for judicial work.  A similar criticism was made by critics of Morrison’s mild temperament.

Morrison Waite’s grandfather Marvin Waite served 19 terms in the state legislature, was a County Court Judge, and was a member of the first Electoral College.  Morrison’s mother was Maria Seldon, a member of an “old” family whose grandfather, Colonel Samuel Seldon, died in captivity by the British during the Revolutionary War.

Morrison Waite was a Phi Beta Kappa graduate of Vale.  He belonged to a debating society which he credited as being an important part of his education.  He practiced law with his father in Lyme for a year until his father was appointed to the state Supreme Court.  Waite then looked for opportunity elsewhere.  He moved to Ohio and engaged in legal work that mostly concerned finances, debts, mortgages, and titles, much of which resulted from the Panic of 1937 and its aftermath of large amounts of fraud.

In 1840, Waite married Amelia Warner of Lyme, his second cousin.

When Waite first appeared in court, he was visibly nervous, stammered, and broke down. The Judge and opposing counsel supported his getting through his arguments.  He lost the case.  This failure made Waite determined to improve. He appeared sickly during his second court case yet argued strongly and won the case.  He went on to win several cases before the Ohio Supreme Court, often representing railroads and other business interests.

Waite offered encouragement to less experienced lawyers.  Once, when observing opposing counsel stumbling when arguing his first appellate case, Waite went to him stating “that was an eloquent argument, Johnny, and if I beat you it will not be your fault.”  When Waite was Chief Justice, he helped guide young attorneys towards staying on track when making their arguments.

Waite helped found, and for two decades was a director of, the Toledo Gas, Light, and Coke company.  He later became a Director of the Toledo National Bank. Then he helped found and was a director of the Toledo Street Railroad company.

Waite presided at the Whig nomination convention in 1849.  He was persuaded, against his wishes, to run for and was elected to the General Assembly.  The Whig convention adopted a position on slavery which was consistent to Waite’s position. It declared slavery as an evil that needed to be ended in both national and state laws.

Waite did not enjoy politics. He served one term in the legislature and went back to his preferred career as an attorney.  Waite ran as a Whig candidate to the Ohio Constitution Convention in 1850 but was defeated.

Waitw was active in clubs at the founding of the Republican Party in 1856.  He declined to run for office.  Waite was a strong supporter of President Abraham Lincoln’s administration.  The Republicans nominated a strong opponent of Lincoln’s policies for Congress in 1862.  Waite was nominated to run for Congress as an independent.  Waite at first was going to decline the nomination yet he felt a duty to run. The 1862 elections were a referendum on Lincoln’s emancipation and war policies.  The divided Republican vote led to a Democrat winning the seat Waite ran for.  Waite was later several times offered to be on the state Supreme Court, but he declined each time.  He did agree to be a counselor to the Governor.

Many Ohioans, believed to be almost half, were against the war continuing.  There was much debate over citizens who were arrested for supporting the South and on Lincoln’s suspension of habeas corpus. Emancipation was a large issue in Ohio.  Some feared Ohio would become a refuge for many escaped slaves. 

Waite’s legal reputation grew.  He argued for the U.S. at the Geneva Arbitration.  The U.S. considered England’s neutrality in the Civil War a belligerent act.  Cruisers, guns, and naval supplies were purchased by the Confederacy from England. The U.S. made claims against England which continued its dispute after the war.  Waite argued England failed to demonstrate neutrality by furnishing supplies to the Confederacy. The American attorneys including Waite won their case in international arbitration by proving the trade was meant for war purposes.

The American attorneys returned to much acclaim.  Waite was nominated for Congress but declined to run.

In 1873, Chief Justice Salmon Chase died.  President Grant offered the vacancy to Senator Roscoe Conkling, whose political ambitions led him to decline.  Grant then nominated former Senator George Williams.  The nomination was met by protests that Williams was more a politician than a legal expert.  The Senate rejected the nomination. Grant then nominated Caleb Cushing, a noted attorney.  Critics claimed he lacked principle.  It was discovered Cushing had written to Confederate Jefferson Davis recommending Davis hire a man who had a patent for a destructive gun.  Ohio Congressional members pushed for Waite to be nominated while Cushing’s nomination faltered.  Grant took the recommendations and nominated Waite.

Congressional scrutiny of Waite was mostly favorable.  His weakness was he lacked national fame.  Waite was a notable and able Ohio attorney.  Three Reconstruction amendments had been added to the Constitution and political insiders in D.C. wanted a Justice with a favorable Reconstructionist reputation.  The Bar Association expressed satisfaction but not enthusiasm with his nomination.

The Senate confirmed Waite.  He was met coldly but the other Justices.  Waite lacked knowledge of the Court traditions.

Several newspapers speculated Waite might become a Presidential candidate.  Waite announced he was not political and he focused on legal opinions.

The Supreme Court was busy under Waite. It average 150 cases in the mid-19^th century.  In 1888, it handled 1,500 cases.

Waite and the Supreme Court decided that women did not have a Constitutional right to vote.  Waite and the Court made numerous decisions on the privileges and immunities of U.S. citizenship that required paying taxes on mortgages bought in other states, that it did not permit selling alcohol against another’s state’s laws, nor was there a right to plant oysters.  His court also ruled states could not deny the right to trial by jury in state cases.  A jury could not be changed by racial discrimination, but it was not required to be of mixed race.

Waite and the Court conclude the equal protection clause was for corporations and individuals, determining that corporations are “individuals” in this law.

Waite and the Court upheld state Granger laws that placed maximum amounts that railroads and grain elevators could charge farmers.  Waite believe state legislators were allowed to regulated business for the public good.  Waite’s court was the first to recognize the doctrine of “public interest.”

Waite and the Court ruled the state must use due process when taking private land. Due process meant a notice and hearing and did not mean requiring a trial.

Waite believed state governments were allowed to experiment on social and economic programs.

Waite and the Court ruled a charter, granted by the state government, could not set rates that were contrary to state law.  The right of a railroad to set rates sill had to abide by state established by a state commission.

Waite wrote over 1.000 decisions in his 14 years on the Court.  The author concluded Waite was noteworthy more for his hard work than for his intellect.  He notes Waite’s is noted for stopping corporations from excessive greed.