The Supreme Court's History of Comforting the Comfortable and Afflicting the Afflicted


By Ian Millhiser

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Now with a new epilogue– an unprecedented and unwavering history of the Supreme Court showing how its decisions have consistently favored the moneyed and powerful.

Few American institutions have inflicted greater suffering on ordinary people than the Supreme Court of the United States. Since its inception, the justices of the Supreme Court have shaped a nation where children toiled in coal mines, where Americans could be forced into camps because of their race, and where a woman could be sterilized against her will by state law. The Court was the midwife of Jim Crow, the right hand of union busters, and the dead hand of the Confederacy. Nor is the modern Court a vast improvement, with its incursions on voting rights and its willingness to place elections for sale.

In this powerful indictment of a venerated institution, Ian Millhiser tells the history of the Supreme Court through the eyes of the everyday people who have suffered the most from it. America ratified three constitutional amendments to provide equal rights to freed slaves, but the justices spent thirty years largely dismantling these amendments. Then they spent the next forty years rewriting them into a shield for the wealthy and the powerful. In the Warren era and the few years following it, progressive justices restored the Constitution’s promises of equality, free speech, and fair justice for the accused. But, Millhiser contends, that was an historic accident. Indeed, if it weren’t for several unpredictable events, Brown v. Board of Education could have gone the other way.

In Injustices, Millhiser argues that the Supreme Court has seized power for itself that rightfully belongs to the people’s elected representatives, and has bent the arc of American history away from justice.





Chapter 1


THE BATTLE TO reshape the Fourteenth Amendment did not begin in Colfax. It began nearly two hundred miles away in the dirtiest city in the nation.

Two years before the outbreak of the Civil War, the president of the New Orleans board of health described a city mired in filth. “Populous hotels poured their ordure from brimming sinks through the chief avenues of the city; gutters swelled with the blood and drainings of slaughter-pens; sugar refineries opened their sluices and whole streets reeked of rank odors; and every highway that chanced to be unpaved was broadcast with the rankings of gutters and the refuse filth of private yards and stables.”1

Just a few years later, after Union forces captured the city in 1862, occupying General Benjamin Butler first encountered the odor of “putrefying filth” that filled the streets of New Orleans. After a carriage ride by a basin near Lake Pontchartrain, Butler complained that “the air seemed filled with the most noxious and offensive stenches possible, so noxious as almost to take away the power of breathing.” Thick scum covered the surface of the water, and the remains of dead cats, dogs, and mules lined the banks.2

Indeed, the city Butler took charge of after it surrendered to Union forces in 1862 was the unhealthiest in the nation. At the middle of the nineteenth century, one in twelve residents of New Orleans died each year, often from outbreaks of cholera or yellow fever. An 1851 study of New Orleans and Boston found twice as many deaths in the former city, despite the fact that Boston had thousands more residents than New Orleans. One physician described the city as a “great Golgatha.”3

A major contributor to these conditions was the city’s slaughterhouses, which were frequently built upriver of the intake pipes that supplied the city with water. Indeed, many of these slaughterhouses disposed of their waste by pumping water from the Mississippi River onto the killing floor. This water, now laden with blood and offal, would then be swept back into the current to poison the city’s water supply.4 Slaughterhouses built away from flowing water would drive leaking carts filled with animal waste through the city so that the waste could be discarded in the river. Others would discard their offal, in various states of rot and decay, into the streets and gutters of the city. Still more simply allowed their waste to fester on their own land.5

When Butler’s troops arrived in New Orleans, Confederate loyalists widely expected his troops to be wiped out by one of the city’s annual summer plagues. Motivated in no small part by fear that disease would achieve what rebel bullets could not, the occupying general ordered a massive cleanup of the city, putting thousands of men to work clearing garbage and closing down slaughterhouses along the river. His efforts were a huge success—the annual plagues ceased while Butler ruled over the city.6

Confederate defeat brought this occupation to a close, however, and Butler’s reforms ended with the war. Slaughterhouses sprang up once again along the river, often providing jobs to former slaves trained to butcher cattle. Shortly after the war, New Orleans contained as many as 150 slaughterhouses7 employing some one thousand butchers. In 1867, three thousand New Orleans residents died from the summer plague.8

As butchers polluted the Mississippi with the remains of dead cattle, newly enfranchised freedmen cast their first ballots to ratify a new Louisiana constitution proclaiming that “the citizens of this State owe allegiance to the United States; and this allegiance is paramount to that which they owe to the State.”9 That same 1868 election elevated former Union officer Henry Clay Warmoth to the state governorship, and gave Abraham Lincoln’s Republican Party commanding majorities in the state legislature. Thirty-five of the newly elected members of the state house were African American Republicans, just one fewer than the total number of Democrats.10

Louisiana’s first integrated legislature soon turned its attention to the problem of slaughterhouses in New Orleans, and in March of 1869, they gave their solution the wordy title “An act to protect the health of the city of New Orleans, to locate the stock landings and slaughterhouses, and to incorporate the Crescent City Livestock Landing and Slaughter-House Company.”11 The act ordered all the city’s slaughterhouses closed by the following June, to be replaced by a single grand slaughterhouse positioned so as not to pollute the city’s water supply.

Though the act gave a monopoly to this single slaughterhouse, it also contained a detailed schedule of fees limiting how much the new complex could charge butchers to use its facilities, and imposed significant fines on the slaughterhouse’s operators if they refused to allow a healthy animal to be slaughtered therein. All animals slaughtered at the new facility would be inspected by an officer appointed by the governor.12 Thus, the act required all butchers to slaughter their cattle in a single location, but also guaranteed that all would have equal access to the grand slaughterhouse and that they would be charged only reasonable fees. An inspector would prevent diseased meat from entering the food supply, and the city’s residents would enjoy clean water untainted by animal waste.

The city’s slaughterhouse owners reacted with predictable outrage, but their rage was hardly limited to those businessmen impacted most negatively by the act. To many whites in New Orleans, the idea that black lawmakers and their Republican allies would presume to dictate any white man’s business was itself an unforgivable outrage. As an editorial in the conservative Daily Picayune complained, whites “have been subjected to the terrible humiliation of seeing their former slaves, ignorant, brutal, and savage, placed above them in the political scale, and united with hordes of carpet-bag adventurers and robbers, coming down from the North, and now clothed with the law making power.”13

No one felt this sentiment more deeply than John Archibald Campbell.

Campbell, who graduated from Franklin College (now the University of Georgia) with first honors at the age of fifteen, briefly studied alongside cadets Robert E. Lee and Jefferson Davis at West Point. Just two years into his military education, however, he abandoned it to pursue a career in law. After building a successful legal practice in Alabama, Campbell twice turned down appointments to the Alabama Supreme Court. When President Franklin Pierce offered him a seat on the Supreme Court of the United States in 1853, however, Campbell accepted and was swiftly confirmed.14

Campbell served just eight years as a justice, though that was long enough to cast a vote against the slave Dred Scott. He resigned from the Court less than three weeks after the first shots were fired at Fort Sumter, and his former classmate Davis—now the Confederate president—appointed him assistant secretary of war. In that role, Campbell was the highest ranking Confederate official to remain behind in Richmond, the Confederate capital, as the rebel government fled Grant’s advancing army.15

By the time Louisiana’s first black lawmakers took office, Campbell was a bitter man. During the war, Union troops destroyed nearly all of his possessions—including a substantial law library—and the former justice was laboring to build a new legal practice in New Orleans without them.16 Having risen to become one of the most powerful men in the country, only to fall to the ranks of a nearly destitute traitor, Campbell gazed upon his state’s new government with disgust. “We have Africans in place all about us,” he wrote to his daughter in 1871. “They are jurors, post office clerks, custom house officers and day by day they barter away their obligations and duties.” The South, Campbell warned, “will be a desolation until there is a thorough change of affairs in all the departments of government. . . .Discontent, dissatisfaction, murmurings, complaints, even insurrection, would be better than the insensibility that seems to prevail.”17

Yet Campbell also saw a path forward paved by the very words that were placed in the Constitution to guarantee equal rights to black citizens, and he soon started representing clients who would help him advance his white supremacist views. In one case, brought on behalf of a white businessman wishing to evade a state law requiring integrated theater seating, the former justice argued that the right to run a segregated business free from government interference was one of the unnamed “privileges or immunities” guarded by the Fourteenth Amendment.18 In a challenge Campbell brought against the hated Slaughterhouse Act, he made a similar argument, believing he could convince his former Court to turn the Reconstruction Amendments against Louisiana’s Reconstruction government.

Although Campbell’s goal was white supremacy, he dressed up his challenge to the Slaughterhouse Act as a case about a domineering central government infringing upon the rights of small businessmen. “Can there be any centralization more complete or any despotism less responsible,” Campbell asked in a brief to the justices, “than that of a State legislature concerning itself with dominating the avocations, pursuits and modes of labor of the population; conferring monopolies on some, voting subsidies to others, restraining the freedom and independence of others, and making merchandise of the whole?”19 Tucked within the Reconstruction Amendments’ mysterious unnamed rights, Campbell saw the right to be free from the Reconstruction government’s slaughterhouse law just as clearly as he spied the right to separate white from black.

JUSTICE STEPHEN JOHNSON FIELD also sensed opportunity in what became known as the Slaughterhouse Cases, decided by the Court in 1873. If Campbell dreamed of a constitution that entrenched white people as America’s master race, Field pined for a constitution that would shrink the government’s power until it was completely incapable of threatening the power and fortunes of America’s most fortunate few. Similarly, where Campbell viewed black men ruling over Southern whites as an affront to our nation’s fundamental values, Field imagined a much older betrayal stretching back as far as the Federalist Party’s ascendance during the John Adams administration.

Field, a Democrat at a time when Democrats were more likely to share his skepticism of government than Republicans, made a dark horse bid for his party’s presidential nomination in 1880. During this race, Field’s campaign published a pamphlet warning of “the chilling shadow of the empire” descending upon the American republic. “The old Constitution,” Field claimed, “has been buried under the liberal interpretations of Federalist-Republican Congresses and administrations, grasping doubtful powers and making each step towards centralization the sure precedent of another.” Field, the pamphlet went on to argue, was “the proper candidate of the party whose life-giving principle is that of local self-government.”20

One of Field’s fullest articulations of his antigovernment views arose from an attempt to protect farmers from price gouging. In the 1870s, nearly all grain grown in the Midwest made its way to the Chicago waterfront, where it was shipped via the Great Lakes to purchasers in the East Coast and Europe. While in Chicago, all of this grain was stored in just fourteen warehouses owned by nine firms that colluded among themselves to set prices.21 Thus, for farmers in much of the country, the only way to access markets large enough to buy their crop was to pay a monopolist’s rates to firms that could raise their prices virtually at will.

Yet, where the farmers saw entrenched businessmen bleeding their families dry, Justice Field saw property owners exercising a sacred constitutional right. When an Illinois law capping Chicago grain warehouse rates reached the Supreme Court, Field labeled this law a “bold assertion of absolute power by the State to control at its discretion the property and business of the citizen,”22 and he called for businesses to be given sweeping immunity to regulation under the Fourteenth Amendment. For the moment, however, his views did not carry the day. Only Justice William Strong joined Field in dissent.

Though a Democrat, Field was appointed to the Supreme Court by Republican President Lincoln. After Lincoln’s death, however, Field showed little interest in Reconstruction. Just over a year after the close of the Civil War, Field authored an opinion striking down an 1865 law preventing former Confederate officials from practicing law in federal court,23 breaking with the Court’s four other Lincoln appointees in the process.24 Field’s presidential campaign would later tout this opinion as proof that he would appeal to Southern whites if nominated for the White House.25 (The victorious party in the Confederate officials case, Arkansas politician Augustus Garland, would go on to serve as Attorney General of the United States under President Grover Cleveland.)

Similarly, Field cared little for racial equality, although on this point he was often joined by his fellow justices. Three years before his death in 1899, Field joined the Supreme Court’s nearly unanimous decision in Plessy v. Ferguson (1896), the segregated railcar decision that held that “the enforced separation of the races . . . neither abridges the privileges or immunities of the colored man, deprives him of his property without due process of law, nor denies him the equal protection of the laws.”26 In another opinion, Field mocked the very idea that African Americans cannot constitutionally be excluded from juries. If black people had such a right, Field chided, then states would have to give the same right to women!27

Field showed similar indifference towards the anti-Chinese sentiment that plagued his home state of California. At the age of thirty-three, Field left a New York law practice to join the forty-niners seeking opportunity in the California Gold Rush.28 He was joined there by thousands of Chinese immigrants. Yet, although California offered Field the chance to serve in the state legislature, to sit on its supreme court, and, eventually, to become its chief justice, the Chinese citizens who met him there typically found low-wage jobs, brutal working conditions, and racism.

In the years after Field left California to answer Lincoln’s call, the Central Pacific Railroad hired as many as fourteen thousand Chinese workers to build the first leg of the tracks that would connect America’s two coasts. There, they labored under white foremen who often punished stragglers with the whip. A common task for Chinese crews carving railroad beds into mountainsides was to dangle a single man over ledges, in a basket thousands of feet above the ground, where the man would place a blasting powder charge in the face of the mountain, light the fuse, and pray that his companions pulled him up fast enough to escape death from flying rocks. During the wintertime, these same men would clear up to fifteen feet of snow just to begin each work day. Avalanches were a common cause of death.29

California rewarded these laborers with anti-Chinese laws often resembling those facing African Americans under Jim Crow. Chinese immigrants in California paid special taxes. They were barred from some professions and forced to obtain special licenses to engage in others. California’s Chinese residents could neither sit on juries nor testify in court.30 And the state actively lobbied for federal legislation restricting Chinese immigration.

An 1877 message to Congress prepared by an official committee of seven California state senators, warned that Chinese immigrants “seem to be antediluvian men renewed. Their code of morals, their forms of worship, and their maxims of life are those of remotest antiquity.” The Chinese are “impregnable to all the influences of our Anglo-Saxon life,” the senators’ message complained. “There can be no hope that any contact with our people, however long continued, will ever conform them to our institutions, enable them to comprehend or appreciate our form of government, or to assume the duties or discharge the functions of citizens.”31

The culmination of this anti-Chinese sentiment was the federal Chinese Exclusion Act of 1882, which barred Chinese workers from entering the United States,32 and an 1888 act prohibiting Chinese laborers who departed the United States from returning, even if they’d previously been issued a certificate by the federal government granting them permission to do so. The Supreme Court upheld this later exclusion of Chinese workers in a unanimous decision by Justice Field.33

So when John Archibald Campbell told the Supreme Court that he stood for “Freedom. Free action, free enterprise [and] free competition” in calling upon them to strike the Slaughterhouse Act, he appealed to the one kind of freedom Field held most dear. Field’s opinion in the Slaughterhouse Cases labels Louisiana’s attempt to keep rotting offal out of the streets of New Orleans to be “similar in principle and as odious in character as the restrictions imposed in the last century upon the peasantry in some parts of France.” Telling butchers that they must slaughter their cattle in a certain location downriver from the city was no less an affront to liberty, according to Field, than French lords prohibiting a man “to hunt on his own lands, to fish in his own waters, to grind at his own mill, to cook at his own oven, to dry his clothes on his own machines, to whet his instruments at his own grindstone, to make his own wine, his oil, and his cider at his own press, . . . or to sell his commodities at the public market.”34

Field, however, wrote these words in a dissenting opinion. Though three of his colleagues shared his view that the Slaughterhouse Act was akin to peasantry, a majority of the Court joined an opinion by Justice Samuel Freeman Miller upholding the law.

THE FIRST OF TEN children born to poor Kentucky farmers, Miller nonetheless married the daughter of one of the preeminent attorneys of Barbourville, Kentucky. As a result of the marital property laws in effect at the time, Miller’s marriage to Lucy Ballinger also gave him ownership of his wife’s five slaves.35

Miller, however, soon fell under the sway of emancipationist politician Cassius M. Clay. Unlike the firebrand William Lloyd Garrison, who compared anything short of immediate abolition of slavery to telling a man “to moderately rescue his wife from the hand of the ravisher,”36 Clay viewed slavery less as a moral affront to equality and more as a failed economic model. After a trip to New England, Clay returned home to Kentucky awestruck by the region’s prosperity—in those free states, men and women lived “luxuriously” on land that, in Kentucky, “would have been deemed the high road to famine and the almshouse.”37

This vision so resonated with Miller that he began freeing his slaves around 1846, just four years after his marriage to Lucy. When Kentucky enacted a proslavery constitution in 1850, Miller left the state for the free soil of Iowa, where he would start a successful law practice and help build the Republican Party. After Miller spent a dozen years in Iowa, President Lincoln placed him on the Supreme Court.38

Miller, however, did not begin his career as an attorney. Rather, he rose to prominence in Barbourville as a physician. A graduate of Transylvania University in Lexington, Kentucky, Miller rapidly grew disillusioned with the practice of medicine during an era in which treatments were often just as deadly as the diseases they were meant to cure. In Miller’s age, the most feared disease was cholera, which could take a perfectly healthy man at morning, reduce him to violent vomiting and diarrhea at noontime, and leave him a corpse by sunset. In 1838, cholera took one-quarter of Barbourville’s juvenile population.39

So Justice Miller was the ex-Confederate Campbell’s ideal antagonist. More than just a staunch Republican, Miller knew better than anyone else on the Court how disease could ravage a town. When Campbell spoke of a hated monopoly denying New Orleans butchers their freedom, Miller could see hope that young doctors—like he had once been—would be spared from breaking the worst possible news to a dying patient’s family.

Miller saw right through Campbell’s efforts to recast the Reconstruction Amendments as a shield for Southern whites. “No one can fail to be impressed,” Miller wrote in his Slaughterhouse opinion, “with the one pervading purpose found” in these three amendments. “Lying at the foundation of each” was “the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.” The target of Campbell’s ire bore little relation to the “evil” these amendments were intended to remedy.40

Of the act itself, Miller wrote that “it cannot be denied that the statute under consideration is aptly framed to remove from the more densely populated part of the city, the noxious slaughter-houses . . . and to locate them where the convenience, health, and comfort of the people require they shall be located.” The act’s mechanism for doing so—mandating that all animals must be slaughtered in a single privately owned but highly regulated slaughterhouse—was “appropriate . . . stringent, and effectual.”41

There was, however, a dark side to Justice Miller’s opinion. Defying Congressman Bingham’s expectation that the Fourteenth Amendment would reshape Americans’ legal rights and forbid state lawmakers from violating the Bill of Rights, Miller rejected the notion that the Fourteenth Amendment fundamentally transformed “the relations of the State and Federal governments to each other and of both these governments to the people.”42 As Field correctly noted in dissent, Miller read the “privileges or immunities of citizens of the United States” protected by the new amendment so narrowly that he practically wrote them out of the Constitution. If Miller’s reading of this constitutional language is correct, then the amendment was, Field wrote, a “vain and idle enactment, which accomplished nothing.”43

Coincidentally, the Supreme Court decided Slaughterhouse just one day after the massacre in Colfax, effectively ratifying the Reconstruction government’s health law the day after Louisiana’s white supremacists proved they could seize power by force. The Court case that emerged from the Colfax Massacre would soon reveal the price of Justice Miller’s narrow reading of the Fourteenth Amendment. Campbell’s defeat in Slaughterhouse would lay the groundwork for a far greater triumph over Reconstruction.

AS CAMPBELL APPEALED to the courts to undermine the Reconstruction government, his fellow white supremacists resorted to voter suppression and outright violence in order to regain the levers of power in Louisiana. And, as Campbell awaited the Supreme Court’s decision in the Slaughterhouse Cases, white Democrats recruited an unusual ally to their cause—the very man who signed the Slaughterhouse Act into law.

Republican Governor Henry Warmoth proved to be far more loyal to his own ambitions than he was to the former slaves who helped elect him. As the 1872 elections to choose his successor loomed, Warmoth struck a deal with Democratic leaders loyal to Campbell’s cause. The Republican governor would throw his full support behind Democratic gubernatorial candidate John McEnery, a former Confederate army officer. In return, Democrats agreed to send Warmoth to the United States Senate (at the time, senators were selected by state lawmakers, rather than being popularly elected under the Seventeenth Amendment, which was ratified in 1913).44

Pursuant to this Faustian bargain, Warmoth installed loyal Democrats as voter registrars throughout the state. In a story that would play out again and again in the South for nearly a full century, these registrars then set out to ensure that the electorate would be as white as possible. Some registrars insisted that elderly black voters prove they were over the minimum voting age of twenty-one before they could register to vote—often an impossible task because former slaves had no birth certificates. Others changed voter registration sites but then notified only white voters of the relocations. Meanwhile, white landlords threatened to evict black tenants who voted Republican. And, when these efforts failed, election officials could always rely on old-fashioned ballot stuffing. In Grant Parish, the site of the Colfax Massacre, white officials snatched a ballot box, kept it overnight, and returned it the next day with a hole in its side where additional ballots could be dropped in.45

In the wake of this tainted election, both McEnery and his opponent, William Pitt Kellogg, a Republican and former Union army colonel, declared victory and began appointing their supporters to state offices. Kellogg eventually gained the upper hand after a pro-McEnery militia tried but failed to seize control of New Orleans police stations in March of 1873.46


  • "As Ian Millhiser illustrates in his trenchant, persuasive, and profoundly dispiriting book Injustices, the Supreme Court has consistently and unapologetically used its authority to thwart progress and perpetuate inequality."—Slate
  • "Injustices is a powerful indictment of the strongest institution of the United States.... A must-read for all Americans."—Washington Review of Books

On Sale
Jun 28, 2016
Page Count
368 pages
Bold Type Books

Ian Millhiser

About the Author

Ian Millhiser is a senior fellow at the Center for American Progress and the editor of ThinkProgress Justice. He received his JD from Duke University and clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit. His writings have appeared in a diversity of publications, including the New York Times, the Guardian, the Nation, the American Prospect, and the Yale Law & Policy Review. He lives in Arlington, Virginia.

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