Thumma and Miller on The Slump: Infamous United States Supreme Court Decisions From the Gilded Age, Explanations About What Happened, and Why It Matters Now

Samuel Thumma, Arizona Court of Appeals, and Michael O. Miller, independent scholar, are publishing The Slump: Infamous United States Supreme Court Decisions From the Gilded Age, Explanations About What Happened, and Why It Matters Now in the Journal of Gender, Race, and Justice. Here is the abstract.

In its history, the United States Supreme Court has issued many decisions forgotten to time. A few are touted as brilliant and foundational, and others are widely criticized. An outsized number of infamous decisions came during the last three decades of the 19th Century, during what we call The Slump.

The latter third of the 19th Century -- often called the “Gilded Age” -- was a time of extraordinary advancements in the United States, including rapid growth and technical development, prosperity for many, significant immigration, and the transition from an agrarian to a manufacturing economy. In the Supreme Court, however, this same period presented a far different cluster of challenges: the meaning and application of the Civil War Amendments (13th, 14th and 15th); reinterpreting or abandoning precedent based on laws protecting “African slavery;” confronting entrenchment of quasi-slavery in the South; and the application of (or refusal to apply) the Reconstruction Amendments to society as a whole. The Court’s decisions were shockingly deficient in doing so. This article focuses on ten infamous cases (“The Slump Cases”) from the Gilded Age -- starting with The Slaughter-House Cases in 1873 and ending just after Plessy v. Ferguson in 1896 -- as well as the Justices’ extra-judicial involvement in deciding the 1876 Presidential Election.

Each Slump Case is discussed in historical and legal context, then critiqued based on the consequences of its failures. We also examine the implications arising from the role of the Justices in resolving the 1876 Presidential Election, decided in an unprecedented manner by just one electoral vote. The article then discusses possible explanations for these infamous cases, ultimately settling on a unified explanation: the Supreme Court failed to address the constitutional revolution wrought by the Civil War and failed to recognize individual rights consistent with those profound changes. It did so in cases involving race, gender, national origin, citizenship, marital relationships, travel, free speech, voting, and jury service. It did so in ways that ignored facts, negated remedial legislation, and could not be fixed legislatively but, instead, resulted in the creation of ill-defined constitutional doctrines, such as substantive due process.

Several Slump Cases were later reversed, but it took many decades and misstarts to do so. Equally important today, the analytical and other failures in The Slump Cases surrounding the Reconstruction Amendments percolate into current jurisprudence, including voting disputes and partisan conflict. Our examination of constitutional changes within this group of Supreme Court decisions during this 30-year period will provide a broader context for considering their significance, precedential value and, hopefully, lessons learned in future cases before any court.

Download the article from SSRN at the link.