The Waite Court

After the Civil War, the Thirteenth, Fourteenth, and Fifteenth Amendments were added to the Constitution to address the legal status of former slaves. As was discussed in the Federalism Timeline, the Supreme Court narrowly interpreted the meaning of the "privileges and immunities clause" of the Fourteenth Amendment in the Slaughterhouse Cases of 1873, to deny a challenge to a monopoly created by the Louisiana legislature. However, the vote in this case was 5-4, and, in his dissent, Justice Bradley argued that the due process clause of the Fourteenth Amendment guaranteed more than the time-honored tradition of procedural fairness dating back to the English Magna Carta of 1215. In Bradley's view, the liberty protected by the due process clause meant the liberty to pursue "lawful employment."

Not long after the Slaughterhouse decision, President Ulysses S. Grant nominated Morrison Waite to become Chief Justice of the United States. Intermittently active in Ohio politics, Waite had mainly been a practicing attorney for 35 years when Grant tapped him to head the nation's highest court. Although he did not possess the dominant personality or years of experience in high office that marked most of his predecessors, Waite eventually asserted his role on a Court that was in the midst of a profound ideological shift.

In 1877, Waite wrote for the seven-member majority in the case of Munn v. Illinois. Responding to political pressure from farmers, the Illinois legislature had passed a law regulating the rates charged by grain storage facilities. Ira Munn, operator of a Chicago grain elevator, filed suit, claiming that the state regulations deprived him of his Fourteenth Amendment due process rights. Rejecting Munn's argument, Waite acknowledged that economic regulation might interfere with due process rights under some circumstances, but determined that the state had a right to regulate property when it became "clothed with a public interest."

Although the Court had struck down Munn's challenge, the language of Waite's opinion sent a signal to businesses that the Court might consider further challenges to economic regulations on due process grounds. As a result, the number of cases on the Supreme Court's docket increased markedly, as this 1885 cartoon depicts.

That year, the docket numbered 1300 cases, compared with 300 before the Civil War.