As the nation's focus on racial justice intensified following George Floyd's murder in 2020, members of Maine's judiciary asked that a statue of former U.S. Supreme Court Chief Justice and Maine native Melville Fuller be removed from the Kennebec County Courthouse grounds.
Fuller had been in the majority for the court's 1896 ruling in Plessy v. Ferguson that approved of "separate but equal" accommodations for Blacks and contributed to Jim Crow laws. But in his new biography of Fuller, "Calm Command: U.S. chief Justice Melville Fuller in His Times, 1888-1910," Maine author Douglas Rooks says to truly understand Fuller's position on Plessy requires some historical context.
Rooks spoke with Morning Edition host Irwin Gratz. This interview has been edited for clarity.
Rooks: The essential ingredients of Plessy, you know, in terms of judicial doctrine, was laid down in a decision well over 10 years earlier by the previous court, with Morrison Waite as chief justice, and that was called the Civil Rights Cases. The Court struck down the 1875 Civil Rights Act passed at the end of the Grant administration. And that was an attempt to equalize accommodations in public places. The court in civil rights cases ruled that this applied only to government and state actions, not to private businesses like railroads.
Gratz: Plessy is the case, of course, Fuller is best known for. But there's another set of cases that actually resonate today called the Insular Cases. Explain what those were.
That was the real discovery of my book. Puerto Rico, at its peak, had 3.6 million people and would be a fairly large U.S. state, but it has never seriously been considered for statehood. Why is that? Well, you have the answer in the Insular Cases: separate but unequal. Given these court decisions, which Melville Fuller strenuously opposed, but was not able to gather a majority except on one or two minor cases. But it is striking to me that you have to go right to the source that explains everything about this weird thing, where they are an unincorporated territory of the United States. The Supreme Court made that one up, and that's what they are.
And as you mentioned briefly, Melville Fuller dissented on these cases. Why?
He didn't have any special solicitude for Spanish-speaking, former colonists, but what he did have is a great belief that the Constitution must apply equally. Fairly rapidly after that, as he died and other justices left the court like John Harlan, they were in strong agreement on this one, it became a unanimous court in favor of second-class citizenship for Puerto Rico.
Well, given Fuller's dissent there, given the totality of his time, 22 years as chief justice, is it your sense that Fuller got a bad rap?
Well, what I would say is I think he's too connected to a single decision, which did not have the significance in its own time that it did later. Pretty clearly Plessy was a done deal. They were reviewing the same issues that they had in an Arkansas case six years earlier, they just said, 'We haven't changed our minds.' It's unfortunate sometimes that we read the court decisions -- and there's a temptation to do that, particularly at the moment -- entirely in terms of the outcome and the result. We don't want to pay attention to the law that it's based on. The country was not ready for full equality. I mean, this is a hard thing about Reconstruction. The reason it failed is people North and South were not quite prepared to accept the freed slaves as equal citizens. It's kind of heartbreaking and tragic, but we can't rewrite history to think it should have been different or better than it was. I would have to say, as somebody who studied these issues for well over 40 years as a journalist, I'm still not sure we're ready for full equality for everybody who lives in this country. It's a never-ending battle.