The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876

By Robert J. Kaczorowski | Go to book overview

7 The Supreme Court as
Legislature: The Judicial
Retreat from Civil Rights
Enforcement

The United States Supreme Court first explained its understanding of the theory and scope of the federal government's authority to enforce civil rights in April 1873. The Court's initial interpretation of congressional civil rights legislation occurred the previous April when it explored the scope of the Civil Rights Act of 1866 in Blyew v. United States. By 1872 and 1873, the national political balance had shifted from what it had been in 1866, and the climate was no longer favorable to civil rights enforcement. The political forces in Congress that produced the Reconstruction civil rights enactments were fragmented. Many of the political leaders and the shapers of public opinion who earlier had supported civil rights protection were now opposed to Republican Reconstruction policies that included the national enforcement of civil rights. Democratic Conservatives had regained much of their respectability and power in national as well as local politics. They, along with Liberal Republicans, exerted effective pressure upon the president to curtail the exercise of federal power and to restore home rule in the South. The Grant administration, struggling against charges of extravagance, corruption, and military despotism, was waffling in its determination to protect civil rights in the South. Northerners longed to forget the strife of the Civil War and Reconstruction. As Attorney General Akerman put it in December 1871, the Northern mind was “active and full of what is called progress.…”1

The first civil rights case decided by the Supreme Court on its merits tested the constitutionality of a federal prosecution for murder under the Civil Rights Act of 1866. The case originated in 1868 when two white men, John Blyew and George Kennard, brutally axed to death and mutilated the bodies of several members of a black family in Lewis County, Kentucky. The ensuing investigation by local authorities resulted in indictments for murder, and the defendants were committed to the Lewis County jail to await trial at the next session of the county circuit court. However, United States marshals removed the defendants from local custody and placed them under federal arrest. Blyew and Kennard were tried for murder before Judge Bland Ballard in the United States District Court at Louisville. They were convicted and sentenced to death.2

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