Presidential Commission on the Supreme Court of the United States
Americans, as well as three white men.[88] In Cruikshank, the Court overturned the federal convictions of the vigilantes, holding that the Bill of Rights protected citizens only against deprivations of rights by the federal government, not by states or private parties.[89]
The next several years saw frequent litigation of the Reconstruction legislation and Amendments. In the words of one historian, “[t]he opening of each term of the Court, beginning in 1876, caused a buildup of anxiety regarding possible decisions in the civil rights cases.”[90] The Civil Rights Act of 1875 was regarded by many contemporaries as the most far-reaching piece of Reconstruction legislation.[91] The Act’s stated aim was “to protect all citizens in their civil and legal rights,” and it guaranteed to all citizens, regardless of color, access to public accommodations, including public schools, churches, theatres, and transportation, as well as jury service.[92] In 1883, in the Civil Rights Cases, the Court invalidated key provisions of the Act, ruling that neither the Thirteenth nor the Fourteenth Amendment permitted the federal government to proscribe discriminatory behavior by private actors.[93] Many scholars regard the Civil Rights Cases as the culmination of a decade-long shift by the Court toward a narrow interpretation of the Reconstruction statutes and Amendments. As one historian observes, “[t]he rights of the individual took precedence over obvious social inequalities that federal officials sought to address.”[94] With the erosion of northern support for robust Reconstruction policies, “[t]hat same narrow, highly individualized interpretation of rights also allowed legal segregation to flourish.”[95]
VI. The Progressive Era: Structural Reforms and Democracy-Based Critiques of the Courts
A. Reorganization of the Federal Courts
As a result of the structural reforms of the Reconstruction era, the dockets of the federal courts—and in particular the Supreme Court—became crowded “beyond all control.”[96] A small reprieve came from Congress in an 1869 statute that created circuit judgeships, one for each of the nine circuits.[97] The circuit-riding obligations of the Justices were also reduced. But it was not enough to stem the tide of litigation in federal court. The number of cases pending in the federal district and circuit courts rose from 29,013 in 1873 to 54,194 in 1890—an increase of eighty-six percent.[98] Yet over the same period, the number of inferior federal court judges rose only slightly, from sixty-two in 1873 to sixty-nine in 1890.[99]
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