‘Equal Justice Under Law’

Judging History

Michael B. Hyman

Justice Michael B. Hyman sits on the Illinois Appellate Court, 1st District. He is a former president of The Chicago Bar Association and the current president of the Illinois Judges Association.

hymikeb@aol.com

November 2016

The front façade of the U.S. Supreme Court Building bears a marble inscription, “Equal Justice Under Law,” attributed to the Chicago lawyer and eighth U.S. Supreme Court chief justice Melville W. Fuller. Largely forgotten today is Fuller’s bigotry toward women and minorities, particularly African-Americans.

In 1856, 23-year-old Harvard Law School graduate Melville W. Fuller decided to practice law in Chicago, after receiving a job offer while visiting a fellow Maine lawyer who had settled here. Fuller went on to flourish as one of the most successful and effective attorneys in the city, making himself wealthy in the process. A frequent opponent called Fuller “adroit and resourceful.”

Fuller immediately dived into politics, fervently supporting Sen. Stephen A. Douglas and the Democratic Party. In 1860, as a Chicago newspaper noted years later, Fuller directed “invective” against Abraham Lincoln and the Republican Party, using “all his power of force and argument to uphold Mr. Douglas.”

Fuller shared Douglas’ hard-line stance on race and slavery. Recall that Douglas opposed “citizenship in any and every form” for blacks, believed the government was formed for the benefit of whites and was indifferent to the persistence of slavery. Fuller delivered Douglas’ funeral oration, praising Douglas and the political order he advocated.

At the Illinois constitutional convention in 1862, Fuller wanted to bar blacks from migrating into Illinois and from voting. Fuller, who during the Civil War served one term in the Illinois House, called the Emancipation Proclamation “unconstitutional, contrary to the rules of civilized warfare” and “calculated to bring shame, disgrace and eternal infamy” on the country. And Fuller supported a constitutional amendment to restrict Congress from legislating against state slavery laws.

President Grover Cleveland took a liking to Fuller and offered him several important positions in Washington, including solicitor general, but Fuller always declined. Following the death of Chief Justice Morrison R. Waite in 1888, Cleveland preferred a Midwesterner and sought out Fuller. He initially hesitated.

At the time, a New York City newspaper questioned why Cleveland would choose a lawyer without judicial experience, barely any practical experience in public life and who never was a “champion of some great principle of justice and right.”

A biographer of Fuller suggests he “was not emotionally or intellectually inclined to assail racial segregation” and “shared the prevalent racial outlook.” According to the biographer, Fuller and the court he led “displayed little sympathy for the claims of racial minorities, women, criminal defendants, dissidents or individuals who breached accepted codes of moral behavior.”

Minorities and women fared poorly during Fuller’s tenure. For example, of 24 cases involving Asian litigants, Fuller voted six times in favor of the Asian litigant’s position. By comparison, fellow justice David J. Brewer, the son of an abolitionist clergyman, voted with the Asian litigant’s position in 18 cases.

And, of course, the Fuller Court issued the abominable decision in Plessy v. Ferguson. Fuller assigned Justice Henry B. Brown, an opponent of black enfranchisement, to prepare the opinion. Brown wrote, “if one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.”

On behalf of a unanimous court in Caldwell v. Texas, 137 U.S. 692 (1891), Fuller denied Caldwell relief, holding state law determined the adequacy of the substance of the indictment against him. Nevertheless, in the course of addressing the application of the 14th Amendment, Fuller stressed, “No state can deprive particular persons or classes of persons of equal and impartial justice under the law without violating the provisions of the Fourteenth Amendment to the Constitution.” Inspiring words, but hollow words because of their author’s own intolerance of “classes of persons.”

About 40 years later, that sentence, concisely summarized as “Equal Justice Under Law” was engraved above the entrance to the Supreme Court Building. It is a phrase almost as familiar as “We the People” and has come to define the dual role of our courts — ensuring for all both equal justice and access to justice.

Although Fuller’s political and legal views are as vile as they are unacceptable, those four words lifted from an otherwise forgotten opinion have ever since roused our nation’s commitment to justice, equality, and human dignity.