Most Lochner revisionists have approached judicial decision-making during the Lochner era as intellectual history. Methodologically this has meant offering close readings of judicial opinions with an eye toward articulating dominant lines of argument and then finding deeper connections to other judicial doctrines or to non-judicial strains of thought in American political culture, such as Jacksonianism, Social Darwinism, or pragmatism. This work has helped us better understand what judges meant to say in many of these cases, and to some extent it has helped shed light on certain patterns of decisions. But the careful examination of judge-made doctrine is an inherently limited approach to understanding the period. Not only does such an approach dramatically overestimate the influence of doctrine or precedent on high court decision-making; it also has prevented us from applying to this era familiar lessons about the influence of non-judicial powerholders on the behavior of courts and the substance of constitutional law.

The pre-revisionist progressive historiography of the Lochner era was better at seeing judges as carriers of political agendas and not merely well intentioned craftsmen or embodiments of political culture. However, even these accounts were too law- or court-centered, with many focusing on the power of the conservative corporate bar. What is still missing is some explanation for how economic conservatives came to dominate the federal bench and why they felt free to engage in the more active exercise of judicial power. That part of the story requires attention to the powerholders who are responsible with staffing courts-presidents and senators-and to their understanding of how federal courts fit into their political agenda. When this becomes our focus then judicial decision-making during the Lochner era can be seen as the by-product of efforts by the post-Reconstruction Republican Party to reconstruct the federal judiciary so that it would become a powerful-and politically insulated-force promoting their program of economic nationalism. This role for federal courts was made possible by party’s fortuitous control of the Presidency and the Senate during most of the postwar period and by its fortuitous short-term control of the entire federal government at key moments-just long enough to entrench its controversial conservative economic agenda in two statutes, the Judiciary and Removal Act of 1875 and the Evarts Act of 1891.

Despite a spate of activity culminating in the passage of the Civil Rights Act of 1875, by the mid-1870s the Republican Party’s commitment to the vigorous protection of civil rights was rapidly diminishing. President Grant had effectively halted civil rights enforcement by 1873. Freedmen’s Aid Societies in the north disbanded, racism became overt again in the north, and the language of reconciliation became more prominent. Federal patronage flowed from Grant to “respectable” Southern Democrats and convicted Klansmen were pardoned.

In sharp contrast to their disintegrating commitment to civil rights was the party’s increasingly clear commitment to economic nationalism. The Panic of 1873, preceded by the violence of the Paris Commune in 1871 and the rise of the Granger movement, “marked a major turning point in the North’s ideological development” as “older notions of equal rights and the dignity of labor gave way before a ... preoccupation with the defense of property” and “economic respectability.” The Republican Party was starting to act as an agent of political and economic development, with the goal being the creation of “a political economy in which central state power could sweep aside regional and local barriers to the development of a national capitalist market and directly assist in the construction of the physical and financial infrastructure necessary for that market.”

Federal courts were particularly well suited for this function. They were politically insulated from “hostile popular sentiment” and institutionally positioned to “span the divide between state and national authority.” Moreover, the construction of this market required ongoing supervision rather than regulative or administrative capacity and “constitutional principles provided an effective framework for monitoring federal and state attempts to regulate corporate consolidation and interstate commercial transactions.”

Thus, in the wake of the midterm elections of 1874, where Democrats regained control of the House of Representatives, Republican leaders quickly brought up for consideration in one lame duck legislative session a subsidy for the Texas and Pacific Railroad, a repeal of the 10 percent tariff reduction of 1872, a mandate that specie payment be resumed within four years, and a bill to expand the jurisdiction of federal courts. In contrast to earlier removal legislation which focused on beefing up enforcement of a limited set of civil rights, the main purpose of the Judiciary and Removal Act of 1875 was to redirect civil litigation involving national commercial interests out of state courts and into the federal judiciary. Technically this meant granting the federal judiciary general “federal questions” jurisdiction-that is, the authority to have original jurisdiction in all civil and criminal cases “arising under” the laws of the United States-and removal jurisdiction in state civil cases that raised issues of federal law or that involved parties from different states.

This reconfiguration of federal judicial power was finalized just as Republican Party domination of national politics was coming to an end. The control of the House by the Democratic Party in 1875, in combination with growing Midwestern and Western hostility to eastern financial interests and national corporations, led to various proposals to repeal or curtail newly expanded federal judicial power. However, given the partisan make-up of Congress and the presidency during this period of intensified two-party competition, these efforts at rollback were unsuccessful. For more than ten years the pattern was for the House Judiciary Committee to favorably report a reform bill and for the Senate Judiciary Committee-now firmly in the hands of the Republican Party-to kill the proposal. As long as Republicans controlled the House, the Senate, or the presidency, the new role for federal courts would remain entrenched; and given the power of “eastern capital” in the Senate this veto-point remained strong throughout the period. The most that was accomplished at the federal level by opponents of federal judicial power was an elimination of provisions that allowed plaintiffs to remove, a shortening of the time for filing removal petitions, and an increase in the jurisdictional threshold from $500 to $2,000. (More effective resistance took place at the state level, with some legislatures passing incorporation acts that required corporations to maintain offices in the state or that required nonstate corporations to waive their rights to resort to federal courts.)

If federal courts were going to facilitate the Republican agenda of economic nationalism it was necessary, not only to expand their jurisdiction, but also to staff them with judges who would be reliable caretakers of this agenda. Fortuitously, the appointment of federal judges did not require the cooperation of the House of Representatives, which was controlled by the Democratic Party for 10 years during the 16-year span from 1875-1891. Throughout this period, until Grover Cleveland’s inauguration in 1885, the Republican Party controlled the presidency, and combined with their hold on the Senate this meant that Republicans controlled the power to appoint federal judges. Moreover, even when Republicans (temporarily) lost the White House, they found that Cleveland’s agenda for the Democratic Party was perfectly consistent with their goal of economic conservatism and nationalism.

It was because of this combination of structural changes and appointment politics that a system of federal courts which had recently been considered bastions of localism within the federal government were transformed into “forums of order” for national commercial interests seeking a hearing free from the interests and perspectives that dominated state proceedings. Grant alone made a total of 41 appointments to the federal bench, which by the end of his term resulted in a lower federal judiciary where 64 percent of judges were Grant appointees (posted to 21 of the 37 states) and 85 percent were nominally Republican. After Hayes the bench was 91 percent Republican (with 28 percent being Hayes appointees).

Of special importance in fortifying this agenda was the decision-making of the United States Supreme Court. The justices would not have the day-to-day responsibilities of administering this policy in individual cases, but their decisions would establish the legal and ideological framework within which these other judges would be operating. A review of the fifteen justices who were appointed between 1870 and 1893 confirms that they “were selected by presidents and confirmed by senators who carefully noted both their devotion to party principles and ‘soundness’ on the major economic questions of the day,” especially their “attitude toward regulation of interstate commerce by the individual states.”

• President Grant started the trend of focusing on conservative economic nationalists by appointing two railroad attorneys and directors, William Strong and Joseph P. Bradley. Two years later he appointed Ward Hunt, who was also identified with railroad interests. Grant’s replacement for Chief Justice Chase, Morrison I. Waite, had no prior judicial experience and never held national office, but he had a record as a successful railroad lawyer and director, and also enjoyed the support of the Vanderbilts.
• After appointing John Marshall Harlan and William Woods, President Hayes attempted to nominate Thomas Stanley Matthews while he was serving as Midwestern chief counsel to financier Jay Gould. The Senate took no action, but Matthews was renominated by President Garfield and finally confirmed in 1881 by a vote of 24 to 23, with opposition arising mostly because of he was considered too openly associated with railroad and corporate interests.
• President Arthur had two appointments: Horace Gray, an experienced state jurist and economic conservative from Massachusetts who encountered almost no Senate opposition, and Samuel Blatchford, an experienced circuit judge with connections to New York’s business and political elite (again no Senate opposition).
• The conservative Democrat Grover Cleveland appointed two: Lucius Lamar, another railroad director and a former professor of political economy who, as a Senator, chaired the Standing Committee on the Pacific railroads, opposed free silver, and vigorously defended Matthews during his controversial nomination (he met strong Senate opposition as the first nominee who had been active in the Confederacy and was finally confirmed by a vote of 32-28 with 16 senators not voting); and Chief Justice Melville Fuller, a corporate lawyer and sound money advocate who left the Democratic Party after Bryan was nominated on a free silver platform.
• President Harrison had four appointments: David Brewer, a conservative judge with experience in the lower federal courts and the nephew of iconic conservative Justice Stephen J. Field; Henry Brown, with almost identical credentials as an economic conservative; George Shiras, Jr., a Pittsburgh lawyer with an influential clientele of railroad, banking, oil, coal, iron, and steel interests (and who was specifically supported by Carnegie); and Howell Jackson, a Democratic who was a former colleague of Harrison’s in the Senate and a family friend.
• Finally, Cleveland had two more nominations: Chief Justice Edward White, a senator and an economic conservative, and Rufus Peckham, a former judge, corporate counsel for New York, and “confidant of tycoons” including Morgan, Rockefeller, and Vanderbilt.

While these justices did impose some minor limits on the exercise of this expand jurisdiction, the overall record demonstrates that they were quite willing to support Congress’ efforts to expand the control of federal courts over commercial litigation. Predictably, businesses flocked to these courts seeking more favorable case outcomes and legal doctrines. By January 1, 1878 the federal circuit court in Chicago had 3,045 suits pending, ten times the antebellum average. According to a House of Representatives Report in 1876, diversity cases were “the largest and most rapidly-increasing class of Federal cases,” arising from rapid economic development and “the formation of numerous great corporations whose business connections extend into many States.” In part this flood of litigation was motivated by reasons made explicit in the removal language of the 1875 statute, such as a desire to avoid local prejudice. But other advantages should not be overlooked, such as the control that federal judges had over juries (generally regarded as dangerously pro-plaintiff), which included the right to “comment” on the quality or weight of the evidence and direct or set aside verdicts. Verdicts in federal court also required unanimity among twelve jurors, and this was preferable for defendants in comparison to state rules that often allowed smaller or nonunanimous verdicts. Removal also allowed for more “forum shopping” by litigants looking for more sympathetic courthouses. This was particularly important given that the social and professional background of most Republican-appointed federal judges disposed them toward the viewpoints advocated by corporations.

In a relatively short period of time, the federal judiciary articulated legal principles that were consistent with the promotion of a more unfettered national market. Federal judges presided over corporate reorganization and addressed problems of railroad finance through the practice of equity receiverships, all with an eye toward promoting more nationalist solutions over regional approaches. At the top of the hierarchy the Supreme Court increased its supervisory authority over local economic regulation by invoking the commerce clause with unprecedented frequency and interpreting it to require courts to eliminate barriers to the free flow of interstate goods and services. The justices interpreted the Fourteenth Amendment to make it a constitutional violation for a state to regulate a person or a corporation in a way that prevented either from earning a reasonable return on invested capital, thus expanding the supervisory responsibilities of the entire federal judiciary over state regulations of business. More generally, the Supreme Court insisted that all levels of government stifle tendencies toward favoritism or prejudice and instead adopt neutral and impartial regulations that were consistent with national standards of due process and equal protection for all. In all these cases, doctrines proved extremely beneficial to large-scale enterprise; in fact, by 1890, the Commercial and Financial Chronicle commented that “the findings of our highest court are such as to put to rest” the dangers of “Socialistic legislation” and thus mark “an epoch in the industrial and constitutional history of the country.”

However, the new mission of the federal judiciary was in such great demand that rising rates of litigation threatened a general collapse. Before institutional reconfiguration the Supreme Court’s October Term of 1870 opened with 636 cases on the appellate docket. By comparison: The October Term of 1884 opened with 1,315 cases on the appellate docket; a year later it was 1,340; a year later, 1,396; in 1887 it was up to 1,427; in 1888 it was 1,563; in 1889 the docket was 1,635; and by 1890 the number was an astonishing 1,800 cases-an almost 300 percent increase in twenty years. The story in the lower courts was the same: In 1873 there were 29,013 cases pending in the circuit and district courts; by 1890 the number had risen to 54,194. Nine circuit judges (ten after 1887) were expected to hold circuit courts in sixty-five districts.

Under these circumstances reform legislation might be considered an uncontroversial response to an obvious workload problem. However, during the antebellum period, a Congress that had little interest in promoting federal judicial power was often happy to keep federal judges overworked. Moreover, the caseload pressures of the 1880s resulted from institutional reforms that were still controversial. In fact, the preferred Democratic response to these pressures was not an improvement in the ability of federal courts to manage this workload; it was “complete elimination of all jurisdiction based on diverse citizenship.”

Given the opposing views of the two parties on the virtues of broad jurisdiction for federal courts the caseload problem would remain uncorrected as long as divided government prevailed. It was not until 1889, with the start of the 51st Congress, that Republicans once again controlled the House, Senate, and the presidency and were thus in a position to respond as they saw fit to the pressures on federal courts. By late in 1890 Chief Justice Waite and Justices Harlan and Field each spoke out to urge Congressional action. The American Bar Association influenced President Harrison -who won the presidency with fewer popular votes than Grover Cleveland-to add a plea for an intermediate court of appeals in his annual message in December 1889.

In April 1890 a reform bill introduced by Congressman John H. Rogers came out of the House Judiciary Committee. Of the 118 members voting to schedule debate on the bill, 115 were Republicans, 2 were Democrats (including Congressman Rogers, who in 1896 would later be appointed as a District Court judge by President Cleveland, confirmed by a Republican Senate), and one was a member of the Labor Party; every one of the 101 votes against debating the bill came from Democrats.

The bill’s chief sponsor in the Senate, and the eventual namesake of the legislation, exemplifies the political and social forces that were behind judicial empowerment. William M. Evarts was a prominent New York lawyer before the Civil War with a sufficiently impressive reputation that he was retained by the national government to help argue The Prize Cases. In 1864 Lincoln was urged by many luminaries (including the Massachusetts governor and some Supreme Court justices) to appoint Evarts to replace Chief Justice Taney. He argued a number of cases before the Chase Court, defended Andrew Johnson in the Senate impeachment trial, and then became Johnson’s attorney general. When he went back to New York he was a leader of the bar association and helped smash the Boss Tweed ring. He continued a very prosperous law practice, representing mostly railroads and other large commercial interests. He was the lead counsel for Republicans before the electoral commission looking into the disputed Hayes-Tilden election, and not long after he was appointed Secretary of State by Hayes, where he advised the president on (among other things) the use of federal troops to put down the Baltimore and Ohio Railroad strike of 1877. When he returned to New York he was instrumental in pushing the state’s highest court to adopt due process interpretations that would prove emblematic of the so-called “Lochner era,” such as the decision in In re Jacobs (1885) striking down the state’s Tenement House Cigar Law on the grounds that it amounted to a class-based deprivation of the freedom to labor without any reasonable public health benefit (with Evarts adding that tobacco was a useful method of fumigation). He was elected to the Senate the following year, just in time to lend his reputation, connections, and worldview to the cause of judicial reform.

The resulting legislation was patchwork reform rather than reinvention, but it solidified the developments of the previous decades. Evarts’ plan, which he had first circulated for comments to the justices of the Supreme Court and selected circuit court judges, formally kept both the district and circuit courts but abolished the appellate jurisdiction of the circuit courts, thus leaving them to operate as trial courts alongside the district courts. It also identified defined classes of cases that could be appealed directly from federal trial courts to the Supreme Court, and then channeled all other appeals through nine newly created circuit courts of appeal, which would have the final say in virtually all diversity suits unless the appellate judges certified that the case should be decided by the United States Supreme Court. The three-judge panels on these courts of appeal would be made up of one new court of appeals judge for each circuit plus available circuit or district court judges.

The Evarts Act was finally passed in March of 1891 by the lame-duck 51st Congress. As with the 1875 legislation this reform came just in time for Republicans. The 52nd Congress that would start later that year had a House of Representatives that was dominated by 235 Democrats and contained only 88 members of the GOP.

The legislation was effective in reducing the Supreme Court’s caseload. The number of cases before the justices fell from 623 in 1890 to 379 in 1891 and 275 in 1892. More importantly, the act-the first significant restructuring of the federal judiciary since the Judiciary Act of 1789-made it possible for the 1875 jurisdictional changes to persist. It also helped remove some of the traditional localizing pressures on Supreme Court justices caused by circuit-riding. As a consequence, the Supreme Court could continue its development as a truly national institution, pursuing national political agendas by exercising those expanded powers and responsibilities that had been assigned to it as a result of the postwar political construction of federal judicial authority.

The Republican Party was able to entrench an agenda of conservative economic nationalism in the judiciary, not because their position represented the clear consensus of national politicians for an extended period of time, but merely because of some fortuitous political circumstances. The Republican Party’s post-Reconstruction commitment to this agenda congealed just as the Party was forced to hand over the House of Representatives to a resurgent Democratic Party, which means that the federal judiciary was one lame-duck session of Congress away from remaining as weak and marginal to national politics as they were before the Civil War. The consolidation of this agenda was made possible because of the short-term control of the federal government enjoyed by Republicans during the 51st Congress. The staffing of these courts could be controlled by the Republicans during most of this period because the electoral power of the Democratic Party resulted in frequent control of the House but not the Senate and because two Republican presidents (Hayes in 1876 and Harrison in 1888) were able to win the White House with fewer popular votes than their Democratic opponents.

The fragile and contested nature of the Republican Party’s agenda should provide a new perspective on the controversies surrounding the federal judiciary’s more active commitment to conservative constitutionalism during the so-called “Lochner era”-a perspective on both why these judges adopted this agenda and why their place in American politics became increasingly controversial as they encountered emergent progressive politics in the twentieth century. More generally, if we appreciate the role played by the political branches in shaping late-nineteenth-century judicial politics, we may be in a better position to see constitutional history as a barely refracted version of political history, where familiarity with party systems, congressional politics, presidential politics, and social movements become at least as important to our understanding of constitutional law as precedent, canons of interpretation, or the internal point of view of legal practitioners.