I have fairly paid the party to whom I owe my place by honest and conscientious service to the country for that place. I know I stand with that party as with the country as the best appointment to the bench which has been made since the party came into power, and I have exceeded fifteen years of faithful irreproachable service.
—Justice Samuel F. Miller, 1877Footnote 1Eight years after the end of the Civil War, the Supreme Court stood at a constitutional precipice. What would be the limits of the Fourteenth Amendment, the most significant legal text to emerge out of that brutal, bloody conflict?Footnote 2 The Slaughterhouse Cases provided the Court with its first opportunity to define the rights that flowed from the amendment's grant of national citizenship to both whites and newly freed slaves. Indeed, the author of the Slaughterhouse decision, Justice Samuel Freeman Miller, took note of the solemnity of the moment. No living member of the Court, he wrote, had ever had occasion to consider “questions so far-reaching and pervading in their consequences, so profoundly interesting to the people of this country, and so important in their bearing upon the relations of the United States and of the several States.”Footnote 3
Miller was right. Slaughterhouse invited the Supreme Court to define the scope of the Fourteenth Amendment's Privileges and Immunities Clause.Footnote 4 Although the Republican Party had championed the amendment's passage and ratification, the Court—composed almost entirely of justices appointed by Republican presidents—would offer a “decidedly cramped” definition.Footnote 5 By a five-to-four majority, the Court ruled that the privileges and immunities of United States citizens identified in the Fourteenth Amendment were narrowly limited to the set of rights “which own [sic] their existence to the Federal government, its National character, its Constitution, or its laws.”Footnote 6 The Court then held that the vast majority of other possible privileges and immunities—including the one at issue in the case, to ply a trade without state interference—remained within the exclusive constitutional purview of the states. Writing for the majority, Miller rejected the idea that the Fourteenth Amendment provided the national government with a broad set of powers to control and limit state regulatory action.Footnote 7 Rendering “the privileges or immunities clause utterly meaningless,” his opinion would have deep and lasting consequences for the political trajectory of American constitutional law.Footnote 8
Regularly cited as one of the core building blocks of the American constitutional canon, Slaughterhouse also represents a rare opportunity to examine judicial decision making at a granular level. A diligent correspondent, Miller left behind an extensive collection of private and intimate letters written to his brother-in-law, William Pitt Ballinger, a Texas Democrat and supporter of the Confederate cause. This collection provides unvarnished, accessible data of a type that is frequently unavailable to scholars of judicial behavior. In these letters, Miller articulated his political and constitutional views as they developed in the years between the end of the Civil War in 1865 and his death in 1890. As we will see, this correspondence leaves little doubt that he considered himself a staunch, politically active, and partisan Republican throughout his life.Footnote 9 Indeed, the justice's archival footprints reflect both his awareness of divisions within Republican ranks and his belief that the party must bridge those internal cleavages to remain in power. They also document Miller's complex relationship with his partisan identity and growing frustration with shifts in his party's policy agenda. Although Miller's biographers have relied on these letters to paint a careful portrait of the man, scholars of judicial behavior have yet to exploit the justice's rich correspondence in their empirical legal studies.
As we will see, Miller's letters demonstrate that his strong desire to promote the interests of moderates within the Republican Party motivated his thinking on the political questions central to the Slaughterhouse decision.Footnote 10 In letters to Ballinger, Miller described himself as “a member of the dominant party, and yet not one of its most ultra or one acquiescing in all that the leading men of that class desire,” confiding that he hoped to use his position on the Court in a “timely and artful” way to “try to moderate my party friends, and work to bring about good results.”Footnote 11 As a moderate Republican, Miller sought to preserve the political gains freedmen had made, but, with the exception of federal enforcement of suffrage protections, he opposed the continued interposition of a heavy federal hand to defend those gains.Footnote 12 Fearful that the growing power of financial interests would overwhelm Republican ranks, Miller nevertheless had high hopes for the development of a Southern wing of the party that would assure Republicans a national majority, fairly won through traditional electoral competition. Constitutional government would thus be restored to the South, with power again appropriately balanced at the federal level between the executive and legislative branches, and between the states and national government.
The ideas and beliefs articulated in Miller's private correspondence with Ballinger, coupled with his active participation in party politics before joining the Court, offer strong evidence that the justice's Slaughterhouse opinion was written with a view to securing the political fate of Republican moderates—and convincing other Republican elites that his vision for the party's future was both necessary and justified. Slaughterhouse, then, is best understood as the product of, and a vehicle for, what I term judicial partisanship.Footnote 13 It can be read as a political blueprint: a guide to preserving the political primacy of the Republican Party and expanding its reach into the newly conquered Confederacy.
The central role of judicial partisanship in Slaughterhouse necessitates an important revision to existing theories of judicial behavior. Specifically, I argue that judges may, at times, be motivated to decide cases—or take other actions—as partisan political entrepreneurs or coalitional spokespeople. Although influenced by concerns about policy, legacy, and institutional legitimacy, judges may also be attentive to their party's issue positions and invested in promoting the policy goals of one wing of their party over another.Footnote 14 While it is conceivable that lower-court judges will act in this way, I argue that Supreme Court justices are especially well situated, and perhaps uniquely so, to lead partisan thinking from the bully pulpit of a highly visible Court opinion.Footnote 15
To be sure, the archival data I rely on here speak exclusively to Miller's individual approach to jurisprudence, and some may caution that analyzing Supreme Court decision making can be accomplished only by considering the preferences of all nine justices.Footnote 16 But in the case of Slaughterhouse, Miller's take on outsized importance. As we will see, many of the justice's political commitments—his deep and abiding faith in the Republican Party, his desire to preserve the rights of newly freed slaves confronting active hostility from Southern whites, and his distrust of then-prevailing trends in industry and finance—could have led him to side with the more expansive interpretation of the Privileges and Immunities Clause offered by his four dissenting colleagues. Thus, we can think of Miller as the Court's median justice on the issues presented in case.Footnote 17 Why Miller did not join Justice Joseph P. Bradley's dissent, which would have made Bradley's opinion controlling, and the implications of that choice for theories of judicial behavior, are the subjects of this article.Footnote 18
In the following section, I present and develop a theory of judicial partisanship, with attention to the conditions under which we are likely to observe it in action. Next, I situate Slaughterhouse historically, demonstrating that attention to the role of judicial partisanship offers greater analytic leverage in understanding the case compared to prevailing theories of judicial behavior. As we will see, Miller's Slaughterhouse opinion offers a useful test case, or proof of concept, for the view that judges may use their decisions to help shape the contours of their party's political agenda.Footnote 19 The concluding section focuses on how the theory developed here might be profitably extended to cases in other historical eras.
1. Understanding Judicial Partisanship
We have long appreciated that courts and parties are core building blocks of the American state.Footnote 20 In the antebellum era, these institutions provided the necessary scaffolding for state development, “supply[ing] its very organizational and procedural fiber.” In the postbellum era, courts and parties have “shaped and delimited” the development of new political institutions, from administrative agencies to the constellation of organized interest groups that dominate contemporary politics.Footnote 21 But although scholars of judicial behavior have persuasively demonstrated that parties profoundly influence the elaboration of judicial doctrine, they have paid less attention to understanding how courts can purposively transform the content of party agendas. This is an unfortunate oversight. Throughout the course of American history, justices—and occasionally judges—have worked actively and deliberately to define the issue positions adopted by the political parties with which they are affiliated.Footnote 22 We can think of these efforts as acts of judicial partisanship.
Here, I argue that the socialization and selection of federal judges, coupled with the “complex tapestry of reasons and reasoning” inherent in crafting judicial opinions, are the primary factors that make this account of judicial behavior credible.Footnote 23 Let us consider each in turn.
It is now well established that most judges' careers are advanced through partisan networks. Judges often work in either the executive or legislative branch before being nominated to the federal bench.Footnote 24 On this account, partisanship is more than a passive or passing identity. Rather, a judge's decision to work for the political branches of government reflects a deep interest in the fate and welfare of a judge's political party. Judges' partisan ties are reinforced by the process of judicial selection, which, as students of law and courts have documented, rewards prospective nominees for their service and loyalty to a political party. As Terri Jennings Peretti reminds us, “judges are not recruited and chosen through a civil service system emphasizing merit … but through a political process controlled by politicians and emphasizing partisanship and ideology.”Footnote 25 For these reasons, we should expect that judges socialized in partisan networks will remain aware of—and, to some degree, engaged in—the ideological debates taking place within their respective parties.Footnote 26 Indeed, “the concept affiliated [with a political party] needs reworking,” not only to include “specifically legal elements,” but also to incorporate the possibility that judges can, and actively seek to, influence politics.Footnote 27
If socialization and selection make it likely that a judge will be motivated to intervene in debates over her party's political agenda, it is the process of writing an opinion that provides the opportunity to do so. Judges, Alexander Hamilton famously observed, have “no influence over either the sword or the purse,” but must instead rely on their “judgment”—or, as Gordon Silverstein writes—their “power to persuade.” As a result, “unlike their elected counterparts, judges … almost always give reasons for their votes” in the form of a written opinion.Footnote 28 In the process, like Ronald Dworkin's mythical “Judge Hercules,” in his book Law's Empire, judges can elaborate the values and beliefs that animate a party's political program, exploring their intellectual foundations and justifying them on the basis of constitutional or statutory text, legislative history, and legal and historical precedent. But unlike Hercules, who searches for “the best available interpretation of American constitutional text and practice as a whole,” a judicial partisan may use her written opinion to prioritize certain party principles over others, interpret the law in ways that knit together the beliefs of divergent factions within her party coalition, articulate principles to guide her party's incorporation of new issues, and in some instances, begin to outline a coherent ideological vision for her party.Footnote 29 Certainly, we must be careful to distinguish acts of judicial partisanship from decision making motivated by a judge's personal preferences, which are in turn shaped by her partisan identity. On my account, judicial partisanship is—much like sociotropic voting—an effort to make decisions on the basis of what is best for the party coalition, rather than an attempt to promote one partisan's favored policy priorities.
When are judges likely to act as judicial partisans? First, we might posit that judges will be more likely to engage in judicial partisanship in the wake of significant institutional or electoral realignments, during which previously established party agendas and partisan cleavages are in the process of degeneration.Footnote 30 These periods of political reconstruction create conditions of profound uncertainty and flux that may, in turn, lead judges to join their fellow partisans in an open-ended debate about a party's core commitments. Because judges are often holdovers from a previous political era, they may be particularly well situated to integrate the new ideas and values that accompany reconstruction with existing traditions in ways that promote coalitional unity and political stability. Although acts of judicial partisanship are important, we should not expect them to be frequent. The bulk of a court's docket involves routine matters largely removed from explicitly partisan concerns.
Likewise, we might expect to observe episodes of judicial partisanship when courts address political issues that cut across existing political coalitions or institutional orders. In particular, acts of judicial partisanship may be more likely to occur when presidents have used a narrow ideological litmus test to select judges—support for abolition, for instance. The passage of time, however, and the corresponding emergence of new issues unanticipated by that litmus test, may expose a new political fault line within a party, which judicial partisans can exploit to promote their view of what would best advantage the party.Footnote 31
However, given that norms of interaction between judges and elected officials have changed over the course of the postwar period, hardening the formerly porous border between the judicial branch on the one hand and the executive and legislative branches on the other, we might anticipate acts of judicial partisanship in contemporary times will be rare.
What are the consequences of thinking of judges as active partners in the development of party issue positions, rather than as passive recipients of agendas already developed by other political actors? Possessing a significant degree of autonomy and independence, judges can choose whether and how to respond when other political actors attempt to “judicialize”—that is, to “foist responsibility” for resolving—contentious and divisive political disputes onto the courts.Footnote 32 Judges may also seek to intervene in intraparty debates before elected officials and other nonjudicial actors have consciously acted to include the Court in those discussions. On this account, we can view judges, along with elected officials, activists, and interest groups, as component parts of a party's leadership. And we can understand party issue positions as the sum of political decision making across different institutions with varying dynamics, including the courts.
Against this backdrop, we can now turn to a detailed examination of Slaughterhouse. As we will see, viewing Slaughterhouse through the lens of judicial partisanship offers a new and important reading of this foundational case. Although a close analysis of a single decision has certain limitations, we can nevertheless derive meaningful analytic leverage “from a close knowledge of the case and context.”Footnote 33 The justice's extensive and candid correspondence with his brother-in-law detail his personal convictions on salient political issues, his beliefs about what was best for the Republican Party, and his hopes for a nation torn apart by civil war. Despite their political differences, the men frequently discussed Miller's opinion on cases before the Court, as well as behind-the-scenes jockeying within Congress, the executive branch, and the Court.Footnote 34 The justice also provided Ballinger with personal portraits of his colleagues and offered opinions of other influential Republican figures of the day.Footnote 35
2. Slaughterhouse: A Case History
In Slaughterhouse, the Court was given the opportunity to adjudicate a set of novel constitutional principles and to resolve issues vexing an increasingly fractious postbellum Republican Party.Footnote 36 Republican lawmakers successfully leveraged their dominance of national politics to pass the Fourteenth Amendment and see it ratified in 1868 (relying on arguably extra-constitutional means to do so). However, in the years after the Civil War, divisions within the party emerged that had previously been obscured by the party's unified opposition to slavery and its commitment to the preservation of the Union.Footnote 37
Beyond the passage of the Fourteenth Amendment, what was the war's ultimate constitutional legacy? For Republican hardliners, the Union's victory necessitated a dramatic reconfiguration of antebellum constitutional arrangements, in which the national government would take priority over state governments. Justice Bradley would make the argument explicit in his Slaughterhouse dissent. “The question is now settled by the fourteenth amendment itself, that citizenship of the United States is the primary citizenship in this country; and that State citizenship is secondary and derivative.”Footnote 38 When a state infringed on the privileges and immunities of national citizenship, he argued, a citizen should be free to bring suit in federal court under Section 1 of the amendment.
But complicating matters for those who agreed with Bradley's position, the petitioners in Slaughterhouse—a group of white butchers excluded from a slaughtering monopoly granted by the state of Louisiana—were represented by John A. Campbell, a former associate justice of the Supreme Court who had later served as a high-ranking Confederate official. After the war, Campbell turned his considerable legal talents to the task of undermining the racially mixed, Republican-dominated Louisiana state legislature. As Michael Ross notes, “Using legal briefs rather than guns, Campbell and his allies skillfully manipulated the judicial system” to their reactionary ends.Footnote 39 Seeking to portray the state-granted slaughterhouse monopoly “as the corrupt venture of carpetbaggers and their black lackeys,” Campbell turned Republicans' goal of strengthening the federal government against them.Footnote 40 Campbell's cynical legal tactics meant that Bradley and other members of the Court, who were committed to rebalancing state and federal power, had to accept that their sworn enemies would be the first beneficiaries of that new equilibrium.
For moderate Republicans, by contrast, American federalism required modification, not dramatic restructuring. Miller would articulate this view in Slaughterhouse, asking, “Was it the purpose of the Fourteenth Amendment … to transfer the security and protection of all the civil rights which we have mentioned from the States to the Federal government?”Footnote 41 For Miller, the answer was clearly no. When the policy consequences of a given judicial interpretation were “so great a departure from the structure and spirit of our institutions … when in fact it radically change[d] the whole theory of the relations of the States and Federal governments to each other and to the people,” such an interpretation could not reasonably stand.Footnote 42 The justice, like many moderate Republicans, was “fundamentally conservative in [his] attitudes toward the United States Constitution and the federal system it delineated.”Footnote 43
As Pamela Brandwein emphasizes in her treatment of the “state neglect” doctrine, this debate went far beyond the Privileges and Immunities Clause, encompassing a related question about the federal government's capacity to protect African Americans from violence and intimidation by Southern whites. Republican hardliners believed that “the federal government could punish Klansmen” directly, even if state authorities had yet to show they were unwilling or unable to do so themselves. Moderates, by contrast, “insisted that state failure to punish Klan violence was a necessary condition or predicate for federal intervention.”Footnote 44
More narrowly, Slaughterhouse raised two important doctrinal questions for the Court. First, what was the appropriate scope of the Fourteenth Amendment's grant of national citizenship? Second, what were the privileges and immunities that derived from that grant? For Miller and other Republican moderates, the Fourteenth Amendment was designed to make clear that African Americans were full political citizens of the United States and, derivatively, of the states. Although the 1866 Civil Rights Act contained a similar citizenship clause, Miller expressed doubt that an act of Congress—even one grounded in the Thirteenth Amendment—was sufficient to overturn the Supreme Court's Dred Scott holding that, as chattel, slaves could not be citizens.Footnote 45
Consequently, in Slaughterhouse, Miller explicitly affirmed that the Fourteenth Amendment was designed to address the subordinate political status of African Americans prior to emancipation and under the Black Codes—laws enforcing racial segregation that replaced those governing the treatment of slaves. The Supreme Court would evaluate any remedies sought by white citizens in light of this “spirit” of the amendment.Footnote 46 In his opinion, Miller expressed doubt that “any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, [would] ever be held to come within the purview of this provision.”Footnote 47 Perhaps driven by Campbell's strategy to deploy the Fourteenth Amendment against its supporters, the Slaughterhouse majority declared that the amendment was designed to serve freedmen, to the likely exclusion of other citizens of the republic.Footnote 48
Miller then brought the three Reconstruction-era amendments together into a coherent, progressive narrative. Having abolished slavery in the Thirteenth Amendment, Congress granted newly freed slaves national citizenship in the Fourteenth Amendment and enshrined their right to vote in the Fifteenth Amendment.Footnote 49 Although acknowledging that only the Fifteenth Amendment “mentions the negro by speaking of his color and his slavery,” the justice argued, “it is just as true that each of the other articles was addressed to the grievances of that race, and designed to remedy them as the Fifteenth.”Footnote 50 Thus, the white butchers who sought to use the Fourteenth Amendment to ply their trade were not its intended beneficiaries. Any application of the Fourteenth Amendment to nonblack citizens, Miller reasoned, would have to wait until “some [other] case of State oppression, by denial of equal justice in its courts, shall have claimed a decision at our hands.”Footnote 51
Perhaps more important, Miller rejected the view that the Fourteenth Amendment was designed to confer on national citizens an expansive set of civil or social rights drawn from natural or common law.Footnote 52 Holding that the amendment did not fundamentally alter the antebellum governing principles underlying American federalism, the justice left primary responsibility for regulatory activity in the hands of state legislatures, not the U.S. Congress. In so doing, the Court determined that the amendment did not make federally enforceable any rights that had previously been enforceable only at the state level. “We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.”Footnote 53 Only those rights explicitly grounded in the federal Constitution—including the right to vote in federal elections without interference—would continue to be enforceable in federal courts.Footnote 54
Understanding the justice's narrow conception of constitutional rights requires some historical context. The period between the end of the Civil War and the consolidation of Jim Crow at the close of the nineteenth century occasioned significant debate over the role of government at both the national and state levels in protecting citizens' rights. That debate took place within a generally accepted typology of rights.Footnote 55 Political rights included the right to vote and to hold office, and perhaps to serve on a jury.Footnote 56 Civil rights included a broad panoply of often-economic activities grounded in Anglo-American common law: the right to contract; to own, sell, use, and inherit property; to marry and adopt children; to travel; and to be protected from private violence.Footnote 57 Social rights were generally associational, involving the treatment of individuals “in the ordinary course of social life,” including in public accommodations such as hotels and theaters, and in schools.Footnote 58
The petitioners in Slaughterhouse advocated an expansive view of the relationship between the Fourteenth Amendment and the prevailing notion of civil rights. “What Campbell urged was that the Fourteenth Amendment had federalized—indeed, constitutionalized—the panoply of economic common-law freedoms, including the right to pursue an occupation.”Footnote 59 Miller's chief antagonist on the Court, Justice Stephen Field, took up this argument in his dissent, proposing “no less than sweeping federal judicial protection for a range of natural, unwritten rights, as against state regulatory power.Footnote 60 Field contended that the right to ply a trade independent of government intervention was a natural law right now guaranteed by the Fourteenth Amendment. In his words, the core question presented by Slaughterhouse was “whether the recent amendments to the Federal Constitution protect the citizens of the United States against the deprivation of their common rights by State legislation.”Footnote 61 In Field's view, they did. The Fourteenth Amendment placed “the common rights of American citizens under the protection of the National government.”Footnote 62 The justice looked directly to the text of the 1866 Civil Rights Act to identify at least some of the civil rights he believed the new amendment shielded—including “the right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of persona and property, as enjoyed by white citizens.”Footnote 63
If Field argued that the domain of constitutionally protected rights was limited only by common law, Bradley offered a more “manageable” standard.Footnote 64 Although Bradley, like Field, believed the privileges and immunities covered by the amendment included a broad set of civil rights—for instance, the right to travel, to litigate, and to use and acquire property—he identified the Bill of Rights as an “authoritative declaration” of at least “some of the most important privileges and immunities.” For Bradley, the first ten amendments to the Constitution laid out a “comprehensive,” if not exclusive, set of privileges and immunities.Footnote 65
Bradley's dissent echoed the views of other influential Republicans, including the amendment's author and chief House sponsor, Rep. John Bingham (R-OR). Indeed, as late as 1871, the congressman argued that “the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States.”Footnote 66 For Bingham and many other congressional Republicans, the Fourteenth Amendment was unequivocally intended to extend the Bill of Rights to the states.Footnote 67
Like Bradley, Miller recognized that the Civil War had led many to believe that the constitutional settlement achieved at Philadelphia in 1787 was no longer sufficient to meet new political challenges. Acknowledging that the conflict had revealed to some “that the true danger to the perpetuity of the Union was in the capacity of the State organizations to combine and concentrate all the powers of the State, and of contiguous States, for a determined resistance to the General Government,” he concluded, “unquestionably this has … added largely to the number of those who believe in the necessity of a strong National government.”Footnote 68 But Miller was unwilling to yield further:
However pervading this sentiment, and however it may have contributed to the adoption of the amendments we have been considering, we do not see in those amendments any purpose to destroy the main features of the general system. Under the pressure of all the excited feeling growing out of the war, our statemen [sic] have still believed that the existence of the State with powers for domestic and local government, including the regulation of civil rights—the rights of person and of property—was essential to the perfect working of our complex form of government.”Footnote 69
For Miller, it was the Court's role to reject “whatever fluctuations in the history of public opinion on this subject” might occur.Footnote 70 The justice then ventured into the vexing project of distinguishing between state-protected and federally protected rights, offering a nonexhaustive list of privileges and immunities that “own [sic] their existence to the Federal government, its National character, its Constitution, or its laws.”Footnote 71 The latter category included rights on the high seas and to the navigable waters of the United States, the “right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus,” and the right to assert claims and transact business with the federal government.Footnote 72 Miller ultimately found it “useless to pursue this branch of inquiry.”Footnote 73 For the justice, it was enough that the protections sought by the Campbell's plaintiffs were not found in the federal Constitution.
Miller's opinion in Ex Parte Yarbrough, written eleven years after Slaughterhouse—whose importance has been highlighted over the past decade by a number of scholars, including Brandwein, as well as Robert Goldman, Richard Valelly, and Xi Wang—is consistent with his view that the Fourteenth Amendment did not address civil or social rights.Footnote 74 Yarbrough concerned a case of voter intimidation tried in federal court. Jasper Yarbrough, along with seven others, sought release from federal custody on the theory that the federal laws under which he was convicted were constitutionally invalid. Miller responded that the Elections Clause of Article I, combined with the Necessary and Proper Clause, offered sufficient constitutional authority for Congress to “provide laws for the proper conduct of those elections,” including “for security of life and limb to the voter while in the exercise of the [suffrage] function.”Footnote 75 Miller rejected Yarbrough's appeal to the limitations on the Fourteenth Amendment imposed by Slaughterhouse. Instead, as Brandwein notes, he invoked a distinction between preexisting civil rights possibly secured by the Constitution and political rights demonstrably created by it.Footnote 76 In Miller's words, regardless of whether “mere invasions of private rights” were covered by the Fourteenth Amendment, “it is quite a different matter when [C]ongress undertakes to protect the citizen in the exercise of rights conferred by the constitution of the United States, essential to the healthy organization of the government itself.”Footnote 77 The justice would conclude by warning that both “lawless violence” and the “free use of money in elections” posed significant dangers to republican government. The union was itself threatened when the federal government's “constitutional domain” lacked “authority to provide against these evils.”Footnote 78
Finally, Slaughterhouse prompted considerable introspection by the Court on economic questions roiling the Republican Party, including the extent of national- and state-level regulation of the economy justified by the Constitution. As we have seen, the petitioners in Slaughterhouse were a group of butchers who opposed the Louisiana state legislature's grant of a slaughtering monopoly to their competitors. The butchers argued that the privileges and immunities of national citizens included the “right to labor [including the right to be free of state-imposed monopolies], the right to one's self physically and intellectually, and to the product of one's own faculties.”Footnote 79 In short, the butchers' arguments foreshadowed those that would later become dominant among laissez-faire Republicans. Those arguments also found an enthusiastic proponent in Justice Field, who used his dissent to critique what he saw as an egregious example of legally sanctioned rent-seeking by the New Orleans butchering monopoly. Reviewing the history of the “struggle of the English people against monopolies,” which he found “one of the most interesting and instructive chapters in their history,” Field emphasized that such monopolies interfered with the fundamental liberty of individuals to pursue “any lawful trade or employment.”Footnote 80 He demanded “recognition of the equality of right among citizens in the pursuit of the ordinary avocations of life, and a declaration that all grants of exclusive privileges, in contravention of this equality, are against common right, and void.”Footnote 81
In contrast, Miller and other economic moderates wished to provide some legal and political space for appropriate state-level regulation of the economy. As we will see, Miller was also concerned about the increasingly dominant role played by finance capitalists within the Republican Party.Footnote 82 Anxious that a Field-dominated Court could become a fearsome “weapon with which [to] defend propertied elites,” Miller's Slaughterhouse opinion warned of the consequences of turning the Supreme Court into a “perpetual censor upon all legislation of the States,” and particularly state efforts to address economic inequality.Footnote 83 Furthermore, Louisiana's carpetbag governor, Henry Clay Warmoth, represented precisely the kind of politician who Miller hoped would succeed in the postbellum South. Warmoth, a Union army veteran born in Illinois, “believed that with Republican guidance the South could be rebuilt in the North's economic image.”Footnote 84 As Ross highlights, Warmoth's core political project was to rejuvenate the New Orleans economy, in part by fixing the city's crumbling infrastructure. He believed that New Orleans could be developed along northern industrial lines by constructing new railroads and canals that would stimulate the city's connections to the rest of the United States.
Viewed as an act of judicial partisanship, Slaughterhouse presented Miller with the opportunity to lend the full weight of a Supreme Court opinion to moderate Republicans, even if that meant compromising some of his own beliefs about the optimal course of federal policy. In so doing, the justice hoped to use the Court as a vehicle to embed a more robust political process into the institutional life of the former Confederacy. A politically competitive “conservative republicanism of the South,” allied with moderate Republicans in the North, would best ensure the return of normal politics within the former Confederacy.Footnote 85 In turn, redirecting political contestation in the South into traditional pathways would set the party on firmer footing.
3. The Limits of Existing Theories of Judicial Behavior
Prevailing models of judicial behavior offer considerable analytic leverage in other contexts. But in the case of Slaughterhouse, they are of limited utility. Regime theorists, for instance, have suggested that judges are the passive agents of the political parties that elevate them to office.Footnote 86 As Robert Dahl argued more than half a century ago, the constitutional processes of nomination and confirmation, combined with judges' reliance on the enforcement powers of other actors in the political system, ensure that judges are “never for long out of line with the policy views dominant among the lawmaking majorities of the United States.”Footnote 87 Judges, in short, rarely overstep the boundaries set for them by party officials. This model would suggest that Slaughterhouse reflected a consensus view among Republican officials about the necessary limitations of federal intervention in the former Confederacy.
There is little evidence, however, to support this explanation.Footnote 88 As we have seen, the questions at the heart of Slaughterhouse exacerbated key ideological divisions within the then-dominant Republican Party. During times when a judge's party is riven by factional strife, with core coalitional members taking divergent, even contradictory, positions, a judge's partisan affiliation is unlikely to tell us much about how she will think about an issue.Footnote 89 And, as Miller's correspondence demonstrates, Slaughterhouse was not the product of consensus. Rather, it was an effort to secure it.
Neither did Slaughterhouse reflect growing Republican disinterest in Reconstruction. Even if we allow that Reconstruction was less popular in 1873 than in 1867, the demise of robust federal intervention in the South was far from a fait accompli.Footnote 90 In early 1873, Union troops and federal prosecutors were still exerting “substantial” effort to enforce federal civil rights and voting rights statutes.Footnote 91 And given that Reconstruction empowered an array of Republican-affiliated stakeholders intent on entrenching a racially egalitarian order in the former Confederacy, it is not surprising that congressional Republicans continued to propose and pass civil rights legislation into the early 1890s.Footnote 92
Attitudinal models fare little better. These models suggest that, in resolving cases where the law is ambiguous, justices are guided, consciously or unconsciously, by their “ideological attitudes and values.”Footnote 93 Conservative judges prefer conservative policy outcomes, while liberal ones prefer liberal policy outcomes.Footnote 94 As one study puts it, “The traditional approach to judicial politics asserts that judges' preferences are dominantly unidimensional and independent of any legal considerations.”Footnote 95 Attitudinal theorists tend to use a judge's partisan background, or the party identification of the appointing president, as a proxy for her political attitudes and policy preferences.Footnote 96 But, in Slaughterhouse, three Republican appointees joined two Democratic ones in the majority, and four Republican appointees dissented. Therefore, attention to the divisions among the Republican justices on the Court is more likely to lead to an effective understanding of the case.Footnote 97 Acknowledging that the national Democratic Party was largely eviscerated, it makes little sense to prioritize interparty jockeying over more consequential intraparty political contestation.Footnote 98
In light of these Republican divisions, an attitudinal account that moves beyond binary partisan identifications might prove more fruitful. Indeed, Slaughterhouse may simply reflect the ideological—but not necessarily partisan—preferences of a majority of the Court. Thus, it may simply have been that the preferences of a conservative, but slim, Slaughterhouse majority led the Court to limit the ability of the federal government to safeguard the wide-ranging privileges and immunities of national citizens.
Despite the Court's constrained reading of the Privileges and Immunities Clause, however, Slaughterhouse defies easy categorization, offering instead an unorthodox blend of politically conservative and progressive elements. As we have seen, Miller's opinion preserved the antebellum model of American federalism at the same time that it affirmed the right of state legislatures to experiment with economic regulation.Footnote 99 Moreover, as Ross argues, historians and legal scholars who believe that Slaughterhouse reflects a conservative Court “tired of the ‘excesses' of Radical Reconstruction” fail to take into account dramatic changes in Miller's own views, particularly on race, over the period from the outbreak of hostilities in 1861 through to the beginning of Reconstruction.Footnote 100 Far from renouncing his concern for freedmen's welfare, the justice came to care deeply about their political and economic fate. His decision in Slaughterhouse stemmed, at least in part, from these concerns. Explanations of Slaughterhouse emphasizing the Court's conservatism are also difficult to sustain in light of arguments put forward by Bruce Ackerman, Wayne Moore, and others who highlight the unusual process by which the Fourteenth Amendment was passed and ratified. As these scholars note, the Court soundly rejected the criticism that Southern states had been coerced into ratifying the amendment as a condition of their reentry into the Union. In so doing, the Court simply asserted, and thereby legitimated, the amendment's constitutional validity.Footnote 101
How, then, should we understand Slaughterhouse? Miller's private correspondence provides a useful starting point. As we will see, the justice's letters reveal a deep desire to see Republicanism prosper in the South, as well as an abiding distrust of the Democratic Party. An active participant in Republican politics from the party's earliest years, Miller thought of himself as a “member of the dominant party” and was seriously considered as a possible compromise presidential candidate, able to appeal to all factions within Republican Party, in both 1880 and 1884.Footnote 102 The justice frequently interacted on a personal and professional level with Washington's political elite, and his Republican credentials remained secure over the course of his long career on the Supreme Court.Footnote 103 Throughout his lifetime, Miller held Southern Democratic leaders responsible for the devastation caused by the Civil War, and for the nation's continuing difficulties in the war's aftermath. Two years after the end of the Civil War, he wrote, “[despite] all its faults, and all the danger on which I see it driving, the republican party is the only one from which I can have any hope for this country.” “The democratic party,” he concluded, “is utterly odious to the voting majorities everywhere.”Footnote 104 Almost a decade later, Miller's view had not changed. “I confess I dread democratic ascendancy in all the branches of the government. The [H]ouse shows that the democratic leaders are still what they always were: superior in demagoguery to any party … unless it was the party of Julius Caesar at Rome.”Footnote 105
4. A Political Blueprint: The Case for Slaughterhouse as an Example of Judicial Partisanship
The core holdings of Slaughterhouse—special protection for freedmen and preservation of antebellum federal arrangements—sprang from the justice's own beliefs about how best to secure the future of the Republican Party. As we will see in the following section, Miller's letters indicate his eagerness to help bring about the return of two-party contestation in the South, arguing that granting the franchise to African Americans could normalize—and perhaps even de-racialize—party politics in the former Confederacy. Moreover, they reflect the belief that meaningful electoral competition in the South would enable the Republican Party to take root organically in the region, making the GOP a genuinely national party. The nation's return to ordinary politics would benefit the Republican Party in other ways. Extremist politics, exemplified by the impeachment of President Andrew Johnson, risked the very principles on which the Republican Party was founded. Continued constitutional innovation, the justice feared, jeopardized the party's foundational commitments.
At the same time, by the early 1870s, Miller's correspondence shows that he feared growing discord between Republican factions on economic matters, which, in his view, threatened to tear the party apart. Reining in the power of the federal courts to strike down state-level regulatory initiatives might stave off that eventuality. If he could deprive his opponents on the Court—those, like Field, who sought to promote finance-driven, capitalist-oriented, laissez-faire economic policy from the bench—of a valuable constitutional tool, so much the better. Let us explore each of these issues in turn.
Race and Reconstruction
Undoubtedly, Miller shared with his fellow Republicans the conviction that slavery was immoral and viewed with contempt those Southern political leaders who had led the former Confederacy out of the Union in violation of the basic tenets of constitutional government. As debates about the nature of constitutional reconstruction raged in the years immediately following the Civil War, Miller wrote to Ballinger, “We cannot in the face of the events that have occurred since the war trust the South with the power of governing the negro and union white man without such guarantees in the federal constitution as secure their protection.”Footnote 106 The justice dismissed prevailing prejudices against newly freed slaves and focused particular attention on the stereotype that African Americans would not work unless compelled by brute force to do so. Miller, as Ross emphasizes, “acerbically” noted that these ideas were maintained by the Southern planter elite, who considered their privilege not to work a marker of status.Footnote 107 “The pretense is that the negro won't work without he is [sic] compelled to do so, and this pretense is made in a country and by the white people, where the negro has done all his work for four generations, and where the white man makes a boast of the fact that he will not labor.”Footnote 108
Indeed, the justice clearly believed that race should not consign individuals to perpetual servitude.Footnote 109 He dismissed attempts by former Confederate states to redesign legal institutions to preserve the antebellum system of plantation labor without running afoul of the Thirteenth Amendment. “New laws proposed by Mississippi, Alabama, South Carolina etc. do but change the form of the slavery. As it was, the individual slave belonged to and labored for the individual white man. As it is proposed to be, the whole body of the negro race in each state must belong to and labor for the whole body of the white people of that state under compulsion of law.”Footnote 110
Consequently, Miller actively supported the use of national political power to subdue the Southern political elite responsible for organizing and pursuing secession. As Ross emphasizes, he “wanted ex-Confederate leaders ostracized, barred from power, and closely watched.”Footnote 111 Months after Lee's surrender at Appomattox, the justice confided, “I believe in the policy of committing the political power of the rebellious states to other hands than those which have caused this rebellion. I do not believe in the necessity or policy of a speedy reconstruction.” And, he continued, the “growing sentiment in the north” was on his side. According to Miller, the use of federal power was necessary to keep these leaders “in a condition where they can exercise no legitimate influence on popular opinion [and] where they can hold no office.” He concluded, “By depriving them of all their property by confiscation in cases where they show a sullen or an evil tendency, I would cripple their influence.”Footnote 112
Several years later, the justice blamed Southern intransigence, rather than Northern aggression, for the imposition of new, more robust policies of Reconstruction. Incensed by the reactionary racism embodied in the South's Black Codes and by wanton violence directed against African Americans, Miller placed responsibility for the failure of President Johnson's more modest approach to rebuilding the nation squarely on the South. “The experiment in reconstruction made under Johnson's invitation and influence, in which it was hoped that the Southern people would exhibit some self restraint, and would recognize in some shape the existence of legal rights and citizenship in the slaves freed by the war [achieved] precisely the reverse.” He continued,
I do … believe today that if these states had not framed their black codes, by which negroes were substantially enslaved to the state instead of the individual, and if they could so far have restrained the fiendish hatred (which many, not all, of them had) for the negro, as to have forborne the massacre of Memphis and New Orleans, the Johnson policy would have prevailed, and reconstruction would have been peacefully carried out under a system which left the white man and the rebel in control of the state governments. This was not to be.Footnote 113
As this letter shows, Miller was not an apologist for antebellum Southern leaders, nor did he support a de facto return to the old system of chattel slavery that the Civil War had swept away.
A “Conservative Republicanism of the South”
Despite these sentiments, in the years preceding the Slaughterhouse decision, Miller made clear to Ballinger that his sympathies lay with a “more conservative republicanism of the South.”Footnote 114 Consistent with his self-described moderation, Miller's idealized vision of Southern politics was, with the exception of slavery, largely about preserving status the quo. He hoped that conserving basic national traditions, including robust two-party electoral competition, traditional notions of federalism, and resistance to the power of eastern capitalists, would diminish Southern exceptionalism over time. Rather than forcibly remake the South in the North's image through carpetbag leadership and interventionist federal policy, Miller hoped that the region would evolve organically and gradually. Thus, when he saw his fellow Republicans, much like “Macbeth,” “wad[ing] so far into [a] sea of radicalism that it were easier (and safer) to go over than turn back,” Miller wrote despairingly that he felt more than ever “indifference to party success.”Footnote 115 The justice worried, in particular, about the long-term effects of prolonged conflict over the postwar political settlement. He confided to Ballinger that he supported “universal amnesty and universal suffrage, not because any of these are the best in themselves, but because we are losing what is much more valuable than any of these things in the struggle which is damaging us worse than the war did.”Footnote 116 Miller's profound hope was that the wounds created by the Civil War would heal with time.Footnote 117 The nation could not operate for long in political crisis mode.
Despite his own personal distrust toward the Confederacy's leadership class, Miller proved willing to tolerate their return if it would advance “conservative republicanism” in the South.Footnote 118 Miller “earnestly advocate[d] the doctrine of universal suffrage and universal amnesty,” even as he acknowledged that “its effect is to restore to power men who seem incapable of forgiving or learning.”Footnote 119 Through these efforts, he suggested, it might be possible for new natural leaders in the former Confederacy to emerge over time, ideally through internal reform of the Republican Party. “The time will come,” he wrote, “when the intelligence and wealth of the South will have its natural influence, and whether this be through the democratic party as I fear it will, or by some reform in the leadership of republicans, its effect must be to give [the South] better officers.” At minimum, Miller understood that “the carpetbag element of the South must subside as leaders.”Footnote 120 Normal politics could not be restored at the national level unless the North tolerated those native Southern candidates who had a legitimate chance of winning a free and fair election.
Even in 1869, with the wounds of war still fresh, Miller believed that the Supreme Court's own composition ought to reflect the importance of national reconciliation. In his view, a Court composed of eight judges “whose residences are all north of the old free and slave state line” was untenable. Upon the expected retirement of Justice Robert Grier, who had grown increasingly frail after a series of strokes suffered in 1867, Miller believed that it would be “both justice and good policy” to appoint a Southerner to the Court. Nevertheless, Miller expressed concern that experienced Southern lawyers, the men likely to be appointed to the Court from the former Confederacy, were all “more or less” influenced by the “strict construction principle as regards the Constitution.” Miller believed these convictions would lead them to overturn on constitutional grounds “the various legislative steps involved in the reconstruction policy, intended to give peace and stability to the government and the country.” “The mere possibility of this to any general extent, would be a calamity hardly second to the rebellion itself.”Footnote 121 But, the justice believed, the risk was worth taking if the country was ever to return to a more stable, routinized political environment.
As his opinions in Yarbrough and elsewhere emphasize, Miller's hope for the gradual normalization of Southern party politics required free and fair electoral contestation, even if temporarily achieved through federal supervision. Miller's letters show that he frequently agonized over the violence that prevented authentic electoral competition. As the results of the Tilden-Hayes election were being contested in 1876, the justice complained to his brother-in-law that political corruption among Southern Republicans was fundamentally attributable to Southern Democratic violence and obstructionism.Footnote 122 He accepted that “the [election] returns board of Louisiana … is governed by, if not corrupt, certainly by partisan influences.” Nevertheless, he told Ballinger, the root cause of this corruption was the climate of violence and fear that Southern aggression against Republicans and their allies had produced. He asked, “Is it possible that you cannot see and admit that by reason of violence, murder, and the absolute fear of death thus produced there was no honest vote in that state?” In highly charged political environments like Louisiana, subject to the pressures of violent resistance against the forces supporting Reconstruction, Miller believed that Southern Republicans, including African Americans, possessed the clear right to make laws governing the state election returns board to “protect themselves.” He concluded in typical fashion, “Suppose I admit the republican party to be more or less corrupt, I am of [the] opinion that it is purity itself compared to the one which you call your friend.”Footnote 123
Miller aspired to end the South's political exceptionalism by adding freedmen to the ranks of the nation's voters. But his desire to expand suffrage was not driven by romantic or idealistic principles. Rather, incorporating African Americans into the electoral system as full participants represented a means to an end. Competition for their votes would lead politicians, especially Democrats, to take meaningful positions on issues that mattered to freedmen.Footnote 124 In the winter of 1867, Miller wrote Ballinger, “I am not now and have not been at any term in favor of negro suffrage as a principle or for its own sake.”Footnote 125 Although freedmen would no longer represent a secure voting bloc for Republicans, Miller believed real electoral contestation would bring an end to the dysfunctional politics of Reconstruction, as the “politics of race that defined the Democratic party and the South would fall away.”Footnote 126 After the election of Grover Cleveland in November 1884—almost twenty years after Miller had articulated his belief in the instrumental value of extending the vote to African Americans—he explained, “I do believe however that all men are interested in the breaking up of the Solid South, and I have a hope that their [the Democrats'] ascension to power may do this.” He felt it would be a “great good … if the next period of general voting in the South would show that every negro voted and half of them voted for the candidates of the democratic party. This I think would presage the speedy dissolution of the democratic party, an event which I think would be the greatest blessing that could come to this country.”Footnote 127
But Miller also knew that the success of moderate Republicans hinged on the Democrats' own capacity for reform. Southern refusal to compromise—the “relentless hostility of the rebels to the party which overthrew the rebellion”—empowered Northern radicalism.Footnote 128 Miller wondered whether Democratic fanaticism would sabotage the efforts of individuals like him who wished to entrench a more moderate vision of what it meant to be Republican. He asked Ballinger, “Of what avail is it for us to give impression to these sentiments … if when we are just on the point of succeeding in this struggle within our own party, we encounter several more of the acts of folly on your part, which [are] seized on here at once to destroy our influence?”Footnote 129
In Miller's view, the moderate Republicanism he advocated could only succeed in an environment characterized by Southern Democratic acceptance of the changed legal status of African Americans wrought by the Civil War. He told Ballinger, “There are two parties to the settlement and your friends need quite as much talking with as mine do. If I could be able to say to someone, See here, they have hung a rebel in Texas for killing a negro, it would be the most effective speech that has been made since the war ended.” Then, using “language as tough as any Miller used during his life,” the justice pleaded with Ballinger to work to condemn Southern racist violence:
Of course I do not believe that all the stories I see in the papers about killing, beating, shooting these men [newly freed slaves and carpetbaggers] are true. … You will say that they are all done by low degraded men … found in all communities, and that your leading men disapprove of it. That is what is always said in reply. Show me how you disapprove of it. Show me a single white man that has been punished in state court for murdering a negro or a union man. Show me that any public meeting has been had to express indignation at such conduct. Show me that you or any of the best men of the South have taken steps out of their way to bring such men to punishment or to take any steps to prevent a recurrence of such things.Footnote 130
Miller wished to stabilize American political life, but he was not naive about the obstacles facing those who shared his political goals. Thus, in Slaughterhouse, the justice imposed clear limits on the pace of constitutional change. African Americans were to be considered full citizens, their rights and liberties protected by the Reconstruction amendments, and further attempts to suppress black political participation through violence would not be tolerated. But the justice left the resolution of other issues brought to the fore by the Civil War—including freedmen's subordinate social and economic status—to the mercies of electoral politics, hopeful that they could be worked out by a new generation of homegrown Southern leaders.
Constitutional Conservatism
Miller feared a never-ending politics of crisis for a second reason. Prolonged contestation would do lasting damage to the core constitutional principles motivating the Republican Party's fight to preserve the Union. The justice consistently asserted his belief in the importance of maintaining the Madisonian system of separation of powers. Indeed, he saw “constitutional government” as a cardinal political value underlying the party's legitimacy and thus its continued survival.Footnote 131 In particular, he objected to the aggressive posture of congressional Republicans toward President Johnson during the years between the end of the Civil War and Johnson's eventual impeachment.Footnote 132 He warned Ballinger that there were “classes of men, who desire [a] rupture [with President Johnson] and whose powers of mischief are very great.” For Miller, preserving constitutional government was at least as important as preserving the rights of freedmen. Underlining this view, Miller identified “certain ultra negro suffrage impracticables, who have no faith in the President giving any aid to their policies, and who desire to precipitate a rupture while they are yet or they suppose themselves to be, the leaders of the majority.” Unlike these more radical Republicans, the justice believed that it was possible to both safeguard the “civil rights of the negro” and to forestall a “rupture with the President.”Footnote 133 Two years later, and roughly a month before Johnson's impeachment, he prayed, “May God deliver us from narrow statesmen and bitter partisans of both sides.”Footnote 134
The alternatives to moderation, Miller argued, would eventually devastate the Republican Party and wreak havoc on American democracy. In the spring of 1867, the justice grew increasingly concerned that the “strain upon constitutional government from the pace at which the majority is going is one which cannot be much longer continued without destroying the machine.”Footnote 135 Frustrated with congressional Republicans for using impeachment for political ends, he believed their decision to “invad[e] the function of the executive and judicial branches of the government was only less dangerous than a return to power of the democratic party.”Footnote 136 As the constitutional crisis wore on, Miller continued to despair over the breach between Congress and President Johnson, comparing it to the Civil War itself. In the winter of 1868, Miller wrote, “In the … collision between the legislative branch of the government and the executive and judicial branches, I see consequences from which the cause of free government may never recover in my day.”Footnote 137
Miller's faith in constitutional government exceeded even his dislike of the Democratic Party. Analyzing the then-unresolved 1876 presidential contest, Miller expressed concern that, eight years after Johnson's impeachment, a close election might be decided in the House of Representatives, thus granting Congress yet another opportunity to intervene in executive politics. Despite his personal and political dislike for Tilden, these anxieties led him to moderate his partisan leanings. He reported to Ballinger, “I would prefer that Tilden should be the President to some possible results that may happen even if Hayes be … lawfully declared elected. I have expressed the conviction often, in regard to other matters, that this House is gradually absorbing all the powers of the government.” Miller believed the disputed election presented the House with a “terrible temptation” to action. Dangerously, “the House as now constituted is not one likely to resist such temptation as to be very conservative in the mere manner of exercising its functions.”Footnote 138
Miller's constitutional conservatism and vision for a more durable Southern Republicanism promoted the national reconciliation he thought necessary for the United States to move forward after the Civil War. The justice reflected that his “respect [for] the rights of the states” was designed to “promote a better feeling among the people.” Ensuring the maintenance of constitutional traditions would also end the South's political exceptionalism. Maintaining an appropriate buffer between the federal government and the states would, in Miller's own words, help to “rescue our politics from the control of negroes and carpetbaggers,” whose control of Southern political institutions was guaranteed by Union occupation.Footnote 139
In keeping with these goals, Miller hoped to deploy the party's resources to facilitate his vision of postbellum political life in the former Confederacy. There was, he observed, a large class of more conservative Republicans who would willingly work with Democrats even at the risk of “a return to power of the allied democratic and rebel parties.” These Republicans, Miller posited, would prefer to collaborate with the enemy “than risk what we are risking, the eventual destruction of some of the best principles of our existing constitution.”Footnote 140 Reconstruction itself aided this project. And, he wrote Ballinger, “The best minds and most influential journals of the republican party … and thousands of other republicans including myself [would] heartily rejoice at the triumph of these men.”Footnote 141
Here, too, Slaughterhouse captured Miller's apprehension that a constitutional rupture would substantially weaken the Republican Party. As we have seen, the decision arrested the breakneck pace of constitutional change that followed Lincoln's embrace of emancipation in the winter of 1863. Slaughterhouse thus reflected Miller's ambition to limit the reach of constitutional reordering, even as he feared the consequences of more ambitious transformation for its own sake. But the justice also believed that preserving the constitutional status quo would increase Southern Republicans' political appeal, making it possible for them to compete electorally with Democrats on a more even playing field. The less the party was associated with dramatic revision of the nation's fundamental constitutional arrangements, the more likely it would be to offer Southern voters an acceptable alternative to the Democrats.
Staving Off Economic Discord
By the early 1870s, Miller had come to fear not only continued constitutional crisis, but also discord within Republican ranks over economic matters. He believed the Republican coalition's continued success depended on its capacity to resolve these internal differences and to moderate what he perceived to be its extreme pro-capital elements. In Miller's view, the platform that had previously held the party together had lost its capacity to unite, replaced by new, more divisive economic issues. In March of 1874, he wrote,
I think the chances are that the republican party cannot hold together three years longer. The elements of discord are powerful amongst them. The issues of the past on which they agree are dead. They are not agreed and don't seem to have the courage to meet the new and living questions of currency, transportation of freight, government by rail roads. No party can live long on issues that are past.
In his view, it was only northern voters' fear of Democratic control that bound the Republican coalition together. “If that old party organization would consent to die, it looks to me as if the republican party must also perish.”Footnote 142
Driven in part by his own experience as a lifelong debtor, Miller's judicial sympathies lay with the economically downtrodden.Footnote 143 He believed that the judicial system was systematically biased against the poor and that railroad corporations effectively controlled judicial appointments, ensuring themselves favorable outcomes in the courts.Footnote 144 Reflecting on his career on the federal bench, he wrote, “It is the most painful matter connected with my judicial life that [I] am compelled to take part in a farce whose result is invariably the same, namely to give more to those who have already, and to take away from those who have little, the little that they have.”Footnote 145 As with Miller's particular concern for public health issues, it is certainly possible that his antagonistic attitude toward finance capitalists was the result of his own personal experiences. But Miller's letters to Ballinger do not suggest that his economic politics were motivated solely—or even predominantly—by his personal financial history.
Believing his fellow Republican justices complicit in the rise of corporate interests within the party, Miller faulted his colleagues for zealously enforcing contracts to the detriment of the nation's poor.Footnote 146 “Our Court,” he wrote, “or a majority of it are if not monomaniacs as much bigots and fanatics on that subject [of contract law] as the most unhesitating Mahomedan [sic] as regards to his religion.”Footnote 147 In Miller's opinion, the pro-capital positions of his colleagues resulted from their training and experience prior to their appointments to the bench. Their many years working for railroad companies and “all other forms of associated capital” meant that “all their training, all their feelings are from the start in favor of those who need no such influence.”Footnote 148 Moreover, Miller despaired, the interests of capital consistently acted as effective and ruthless judicial lobbyists. As he warned Ballinger,
The men you are fighting have personal access to certain judges, whose influence on the bench is predominant. They understand beyond any men I have ever known the art of influencing men. They have unlimited means, for they are worth fifty millions of dollars, and they are not illiberal in the use of them.” In the end, he expressed skepticism that Ballinger would succeed in his struggle against such interests. “You are engaged in a protracted, an intensely exciting and a certainly unsuccessful struggle, for all that they think worth fighting for they will win”.Footnote 149
As the postbellum political economy developed, the class of financiers Miller called “capitalists” came in for particular criticism. Writing to Ballinger, the justice confided, “I have met with but few things of a character affecting the public good of the whole country that has shaken my faith in human nature as much as the united, heinous and selfish effort of the capitalists—the class of men who as a destructive class are but recently known in this country—I mean those who live solely by interest and dividends.” In Miller's view, the Civil War had dramatically transformed the role and importance of the nation's financiers, divorcing them from the interests of their communities. Their “only interest or stake in the country is the ownership of these bonds and stocks. They engage in no commerce, no trade, no manufacturing, no agriculture. They produce nothing.”Footnote 150
Likewise, the justice feared that the machinations of the “capitalist class” were impeding—and, at times, corrupting—the development of other sectors of the economy. Capitalists, Miller explained to Ballinger, had been tremendously successful in shifting the tax burden onto manufacturers and farmers. And, Miller argued, capitalists had also overrun the nation's newspapers and journals. Ownership by joint-stock corporations, rather than by individual editors or publishers, diminished the public discourse. In his view, instead of focusing on quality reporting, the “first great duty of the managers [of print publications] as in all corporations is to declare large dividends.” As a result, “Honor, religion, morals, political principles are only to be referred to and thought of as cards in [the] game for dividends.” Throughout his correspondence during this period, the justice underscored his “profound “contempt … [and] little tolerance for the selfish, cunning organization of bond holders.”Footnote 151
Miller expressed anxiety that, without aid from likeminded jurists, the Constitution could not restrain the excesses of the Gilded Age. He wrote, “These instruments themselves [constitutional restrictions on legislative power], supposed to be the peculiar pride of the American people, and the great bulwark to personal and public rights, must fall rapidly into disrepute if they are found to be efficient only for the benefit of the rich and powerful.”Footnote 152 Indeed, his chief opponent on the Court, Justice Field, “viewed the Louisiana's [sic] slaughterhouse law not as a health regulation, but rather as redistributive legislation that took the property of white butchers and gave it to corrupt carpetbaggers and their black lackeys.”Footnote 153 Determined to defend the economically disadvantaged, Miller was eager to do battle with his judicial antagonists.
When he could not score points against the proponents of laissez-faire capitalism he excoriated, he could at least prevent them from achieving important victories. His commitment to a robust program of American federalism meant that he had no alternative but to place his hopes for anti-capital, pro-debtor regulations in the hands of the states, whose legislatures were controlled at least for the moment by Republicans and their Southern allies.Footnote 154 As Ross suggests, “If the majority had accepted the dissenters' position in Slaughterhouse, the Court would have had the ability to strike down valuable state regulatory laws that had nothing to do with race in order to protect rights that had their basis in conservative ideology and natural law.”Footnote 155
Read in this light, we can understand Miller's Slaughterhouse decision as an effort to liberate state legislatures from the threat of intervention by a conservative federal judiciary that would deploy the Constitution to strike down sorely needed laws designed to regulate the economy in the interests of the country's have-nots. Having lost faith in the Court's willingness to restrain economic elites, Miller wished to preserve states' ability to serve as a political bastion from which other Republicans, also worried about the increasing sway of finance interests, could protect debtors and farmers from the tightening grip of capital.
5. Partisan Reception
To what extent did the justice succeed in deploying Slaughterhouse to promote within Republican ranks his own beliefs about how to assure the party's continued vigor? For Miller, Slaughterhouse represented a particularly important political opportunity to advance the interests of moderates within the party precisely because of the fluidity of Republican identity in the first decade after the Civil War. The party's defining crusade had come to a successful resolution, and its leaders would have to find new issues to motivate their constituents. Along with many others, Miller added his voice to the Republican chorus, hoping to define what the Republican Party would stand for in the postbellum era. In this sense, Slaughterhouse ratified both political change and continuity—affirming the hard-won rights of freedmen, rejecting the proposed transfer to the federal government of traditional civil rights, and trying to restrain the advance of laissez-faire constitutional interpretation for as long as possible.Footnote 156
In Congress, the justice's fellow Republicans used his Slaughterhouse intervention to support three primary arguments. First, accepting Miller's effort to link the three Reconstruction-era Amendments into a coherent whole, many Republican lawmakers read the decision as an affirmation that the Fourteenth Amendment addressed itself to African Americans as a distinctive political group. For example, during the long debate over what would become the Civil Rights Act of 1875, Rep. Charles Williams (R-WI) cited Miller's interpretation of the Reconstruction amendments. He stated, “It will be seen that the Thirteenth Amendment emancipated the slave, but virtually left him an outlaw; the Fourteenth Amendment clothed him with citizenship; and the Fifteenth gave him the right of suffrage. The three combined raised him to the dignity of a man, and invested him with the rights, the privileges, and immunities of a citizen.”Footnote 157 Roughly a year earlier, Rep. Robert Brown Elliott (R-SC), himself an African American, took the position that Slaughterhouse articulated “doctrines worthy of the Republic, worthy of the age, worthy of the great tribunal which thus loftily and impressively enunciates them.” In Elliott's view, the Court confirmed that the “all-pervading design and end” of the Thirteenth, Fourteenth, and Fifteenth Amendments was to ensure “to the recently enslaved race, not only their nominal freedom, but their complete protection from those who had formerly exercised unlimited dominion over them.”Footnote 158
Other Republican lawmakers interpreted the Slaughterhouse decision as an invitation to find alternative avenues through which the civil rights of freedmen could be guaranteed. Following Miller's own suggestion in his Slaughterhouse decision, they turned to the Fourteenth Amendment's Equal Protection Clause.Footnote 159 For example, as Sen. Timothy Howe (R-WI) argued,
The Court was simply arguing that the Louisiana slaughter-house act [sic] did not transcend that one clause of the fourteenth amendment which says that a State shall not impair the privileges and immunities of citizens of the United States. That is not the whole of the Fourteenth Amendment, and the court took notice of that fact … Judge Miller, then, is of the opinion that under the [Equal Protection] clause no State can oppress a colored citizen by virtue of its laws. The very object of the bill now before us is therefore sanctioned by the opinion of that one judge at least, for though he does not think it included within the previous clause, it is included in the last clause of the amendment.Footnote 160
Rep. John Roy Lynch (R-MS), another black Republican, concurred with Howe's interpretation of Slaughterhouse. Like Sen. Howe, Lynch cited Miller's interpretation of the Equal Protection Clause.Footnote 161
Second, Republican commentary on the decision also suggests that the Slaughterhouse decision provided a framework within which to achieve the constitutional stability Miller so desired. As the justice had hoped, political actors viewed the decision as an affirmation of antebellum federal arrangements, particularly because Slaughterhouse granted states wide latitude to regulate economic activity. Miller himself continued to defend his Slaughterhouse opinion on these grounds. In a commencement address given at the University of Michigan in 1887, Miller told his audience that “public sentiment,” as measured by press reaction and “the universal acquiescence” that Slaughterhouse received, “accepted it with great unanimity.” According to The Nation, Miller's assertion was “quite justifiabl[e].” “Justice Miller's address shows that the State-right issue is settled, since nobody of any standing anywhere in the country dissents from the interpretation of the relations of the States and the Federal Government laid down by [the] Supreme Court.”Footnote 162
Finally, the Republican-affiliated Chicago Tribune, which Miller called the “ablest paper in the United States,” suggested that the majority opinion in Slaughterhouse was “likely to hold a long time” because it had privileged the principle of federalism over that of unrestricted economic competition.Footnote 163 Lauding the Slaughterhouse decision, the editors wrote:
If the opinion of the minority could prevail with the single effect of prohibiting special legislation and crushing out monopolies in all the States, without otherwise interfering with their separate and distinct powers, it would certainly be a blessing. But it is not to be denied that the ulterior consequences of this opinion would be to destroy State existence with State citizenship, and to absorb all government and authority into one centralized head—a result for which the people of the United States are not yet prepared, if they ever shall be.Footnote 164
For the Tribune's editors, Slaughterhouse emphasized that whatever the merits of monopolies, the decision to create or eliminate them was a state-level political determination that did not require the intervention of the federal judiciary. “The decision plainly indicates … that the people of every State must look to their own protection against monopolies when they frame their Constitutions and elect their Legislatures, and not come to the courts afterwards and ask them to undo what the legislative authority has done.”Footnote 165 Slaughterhouse, the editors concluded, ensured that some politics would remain local.
6. Conclusion
In this article, I have argued that judges can work deliberately to define the issue positions adopted by the political parties with which they are affiliated. This theory of judicial partisanship rests on the notion that a judge's party affiliation is more than a passing or passive identity. Rather, like other political actors, judges can use the tools of their office to further explicitly partisan goals. Employing traditional modes of legal reasoning, judges may nevertheless craft their decisions in ways that prioritize certain party principles over others, interpret the law in ways that knit together the beliefs of divergent factions within their party coalition, articulate principles to guide the party's incorporation of new issues, and, on occasion, begin to outline a coherent ideological vision for their party.
What are the benefits of thinking about judicial behavior in this way? First, we might predict that acts of judicial partisanship are likely to characterize periods during which a party's political commitments are hotly contested. For example, in both the Progressive and New Deal eras, both Republicans and Democrats wrestled with the consequences for their respective parties of changes wrought by America's rapid industrialization. And, as we saw in Slaughterhouse, both eras witnessed the judiciary's continued struggle to define the appropriate scope of federal regulation of the economy, and the necessary constitutional balance between the states and federal government.Footnote 166
Second, conceptualizing judges as explicitly partisan actors can help to remedy a central problem in classic works of judicial behavior identified by Howard Gillman. As Gillman argues, these works rarely consider “the influences that historically contingent configurations of social and political power may have on the range of decision-making considered acceptable or appropriate.”Footnote 167 As we have seen, an account emphasizing the importance of judicial partisanship necessarily requires attention to the context of a particular institution at particular time: in the case of Slaughterhouse, the Republican Party of the post–Civil War period.
Last, although we have much to learn before we can begin to identify historical trends in judicial partisanship, two possible and countervailing forces bear mention. On the one hand, we might expect that during times of intense political polarization and consistent legislative gridlock, politicians are more likely to judicialize controversial decisions.Footnote 168 In these situations, judicial partisans are likely to have more opportunities to intervene in important public debates about the future direction of their political party. On the other hand, if it is true that institutional change becomes more difficult over time, as the institutional environment grows “thicker” and institutions more sclerotic, acts of judicial partisanship may become more rare.Footnote 169 For now, we can tentatively conclude with a simple corrective to the notion that judges are best understood as passive partisan vessels. As in so many other areas of American political life, Dahl put it best: “There are times when the coalition is unstable with respect to certain key policies; at very great risk to its legitimacy powers, the Court can intervene in such cases and may even succeed in establishing policy.”Footnote 170
