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The Deciding Vote | The Nation

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The Deciding Vote

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According to the Constitution, the President, with the consent of the Senate, selects the members of the Supreme Court. Twice in American history, however, Supreme Court Justices have chosen the President. The first occasion was in 1877, when five Justices served on the fifteen-member Electoral Commission charged with determining the outcome of the disputed contest between Rutherford B. Hayes, the Republican Governor of Ohio, and Samuel J. Tilden, the Democratic Governor of New York. Justice Joseph Bradley cast the deciding vote that made Hayes President. In 2000, of course, five Justices, in Bush v. Gore, ordered Florida to halt the recount of ballots, allowing state officials to certify that George W. Bush had carried the state and won the presidency. In both cases, William Rehnquist notes rather coyly in his new book, "there was profound dissatisfaction with the process on the part of the losing parties."

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Eric Foner
Eric Foner, a member of The Nation’s editorial board, is the DeWitt Clinton Professor of History at Columbia...

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Rehnquist, of course, is the Chief Justice of the United States who supplied one of the five votes that made Bush President. He is an unusual jurist who reads and writes history, the author of books on civil liberties in wartime and impeachments in American history. In Centennial Crisis, the Chief Justice turns his attention to the electoral controversy of 1876-77. Unfortunately, this brief, curious work adds nothing to readily available accounts of its subject. The scholarship on which Rehnquist relies is almost entirely out of date and his grasp of the complex issues of the Reconstruction era tenuous. But if Centennial Crisis has little value as history, it offers a revealing glimpse into the mind of the Chief Justice. For essentially, the book is an elaborate, although indirect, apologia for the Court's decision in Bush v. Gore and a defense of Supreme Court Justices who help to resolve extrajudicial controversies.

Few eras of American history have undergone as sweeping a reinterpretation by historians in the past forty years as Reconstruction, the turbulent period that followed the Civil War. Once viewed as the lowest point in the American saga, a time of rampant misgovernment by uneducated former slaves empowered by vindictive Radical Republicans, Reconstruction is now seen as a flawed but praiseworthy effort to construct an interracial democracy in the South on the ruins of slavery.

Unfortunately, Rehnquist ignores virtually all modern works on the era, including those that deal directly with the disputed election, not to mention relevant manuscript collections. David Lincove's comprehensive annotated bibliography of Reconstruction, published in 2000, lists twenty-seven books, articles and doctoral dissertations under the heading "Election of 1876," some of minor importance but many indispensable. Of these, Rehnquist cites only three. He relies most heavily on Paul Haworth's 1906 history of the election.

Rehnquist offers colorful portraits of the two presidential candidates and members of the Court, although these add nothing to what can be found in any standard biographical encyclopedia. He sometimes wanders off into irrelevancy, as when he recounts an assault on Justice Stephen Field in the late 1880s in which Field's bodyguard killed the assailant. He gets facts wrong, as in his account of the Great Railroad Strike of 1877, which suggests that President Hayes refused to intervene and let the strike simply peter out. The President's diary entry after he sent troops to crush the uprising is more accurate: "The strikers have been put down by force."

More important, Rehnquist remains locked into an antiquated view of the Reconstruction era long abandoned by scholars. He wrongly claims that Andrew Johnson tried to carry out Lincoln's "conciliatory approach" to Reconstruction only to be foiled by the Radical Republicans who dominated Congress. In fact, moderate Republicans, not Radicals, controlled Congress throughout Reconstruction, and Johnson's plan was very much his own, not simply a replica of Lincoln's. (On the eve of his death, Lincoln had called for limited black suffrage in the postwar South; Johnson was an inveterate racist.) What Rehnquist calls the Radicals' "Carthaginian Peace" (that is, the total subjugation of the defeated party by the victor after a war), involved the effort by moderate and Radical Republicans alike to devise ways of protecting the basic civil and political rights of the former slaves. That the Chief Justice of the United States sees national protection of blacks' rights as a punishment imposed on whites is disheartening.

Rehnquist's account of the years preceding the election of 1876 says almost nothing about the massive violence inflicted on black Southerners by the Ku Klux Klan and kindred groups. He attributes the Hamburg massacre of 1876, in which armed whites murdered a number of black South Carolinians, to "racial hostility," rather than recognizing it as part of a reign of terror aimed at overturning Reconstruction and restoring white supremacy. In other words, he offers no assessment of what was really at stake during the electoral crisis.

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