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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 The scholarship on which Rehnquist relies is almost entirely out of date and his grasp of the complex issues of the Reconstruction era tenuous.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.

Much of Centennial Crisis consists of a detailed account of the formation and deliberations of the Electoral Commission, authorized by Congress to determine which candidate had carried South Carolina, Florida and Louisiana, the states on which the presidency hinged. Both parties claimed to have won these states, and rival officials dispatched conflicting electoral vote returns to Washington. With the Constitution silent as to how to resolve the dispute, Congress in January 1877 established a commission consisting of five members of the House, five senators, and five Justices of the Supreme Court. Four of the Justices were named in the bill, and they were directed to choose the fifth, expected to be David Davis, a political independent. But in the midst of the crisis, the Illinois legislature elected Davis to the US Senate. Justice Joseph Bradley, a Republican, took his place on the Electoral Commission. With the other members evenly divided between the two parties, Bradley became the "casting vote" in a series of 8-to-7 rulings that gave the disputed states to Hayes and made him President.

Rehnquist narrates these events clearly, but fails to probe beneath the surface of events to explain the complex situation that developed or to interpret it effectively. He does not describe how divisions within the two parties and growing pressure from business interests for a settlement led to the establishment of the commission in the first place. He offers no explanation for Davis's election to the Senate, leaving the reader to wonder whether it was engineered by Democrats more interested in power in Congress than Tilden's election, or Republicans who wanted to get him off the Electoral Commission. He says almost nothing of the intense negotiations that took place outside the commission, in which Hayes's lieutenants, leading Southern Democrats, and various railroad interests hammered out a deal involving the abandonment of Reconstruction.

This "bargain of 1877" provided that Democrats, who controlled the House of Representatives, would not try to obstruct Hayes's inauguration; Hayes would recognize Democratic control of the disputed Southern states; the basic rights of the former slaves would be guaranteed; and federal aid would be extended to a Southern railroad. The deal turned out to be far more important in its long-term consequences than whether Hayes or Tilden became President. It ended an era when the federal government sought to protect the rights of black citizens. And since Southern Democrats soon reneged on their pledge to respect blacks' constitutional rights, it marked the beginning of the long descent into segregation and disenfranchisement.

"The Negro," this magazine commented soon after Hayes's inauguration, "will disappear from the field of national politics. Henceforth the nation, as a nation, will have nothing more to do with him." The editors of The Nation, like most white Americans of that era, rejoiced in the abandonment of Reconstruction. Chief Justice Rehnquist praises the members of the Electoral Commission for enabling the country to avoid "serious disturbance" and go "about its business." He says nothing of the cost of the settlement, which did much to shape the racial system of the United States in the decades that followed.

With one eye on the Court's actions in 2000, Rehnquist ends his account by defending Justice Bradley against the "opprobrium" he endured for his "casting vote" that made Hayes President. He offers a brief survey of other instances when Supreme Court Justices have served the nation in "extrajudicial capacities." John Jay negotiated a treaty with Great Britain in 1794 while serving as Chief Justice. Justice Melville Fuller helped to arbitrate the Venezuela boundary dispute in 1897, Justice Owen Roberts headed the commission investigating the attack on Pearl Harbor and Chief Justice Earl Warren led the probe into the assassination of President Kennedy.

Interestingly, Rehnquist says nothing about the more explicitly partisan activities of Supreme Court Justices, of which examples abound. Justice John Catron enlisted the intervention of President-elect James Buchanan to persuade another member of the Court to side with the proslavery majority in the Dred Scott decision of 1857. President Franklin Roosevelt regularly conferred with Justice Louis Brandeis on political matters, as did Lyndon Johnson with Justice Abe Fortas. These instances seem more relevant to the behavior of the Justices in 1877 and 2000 than the Venezuela boundary question. In both cases, members of the Supreme Court made political decisions.

Actually, the outcome in Bush v. Gore seems far less defensible than the actions of the Electoral Commission. In 1877 Justice Bradley concluded that the commission could not possibly conduct its own detailed inquiry into local election returns and thus had no choice but to accept the findings of local election boards (all Republican) as to who had carried their states. Bradley's position, as Rehnquist argues, was certainly "reasonable." Unlike his successors in 2000, Bradley did not invent a new constitutional principle (equal procedures in the counting of ballots) to reach a predetermined verdict and then add that this principle applied only in the specific case at hand. Bradley seems to have tried to rise above the immediate political situation, unlike Justice Antonin Scalia, who in 2000 insisted that the Court needed to insure "public acceptance" of a Bush presidency. It is unlikely that Bradley would have gone duck-hunting with a litigant before the Court.

Rehnquist acknowledges that the Justices who accepted assignment to the Electoral Commission in 1877 "may have tarnished the reputation of the Court." This book will do nothing to rehabilitate the reputations of the five Justices, including Rehnquist himself, irreparably "tarnished" by their actions in 2000.

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