The political conflict over the direction of the Supreme Court is at its height following two sweeping rulings in the court’s most recent term, one that expanded individual gun-bearing rights and the other that stripped constitutional protection for abortion. Those rulings were the product of a conservative majority that grew stronger and bolder in recent years with the addition of three justices appointed by former President Donald Trump.
The rulings were hailed by conservatives and criticized by progressives and liberals. Republican Senator Ted Cruz of Texas released a statement saying, “The Supreme Court’s decision in Dobbs, overturning Roe v. Wade, it’s nothing short of a great win for life.” President Joe Biden spoke of the “outrageous behavior of the Supreme Court,” while to his left, Rakim HD Brooks, head of the Alliance for Justice, a coalition of more than 130 progressive groups, said, “This disturbing milestone speaks to how hyper partisan and anarchic that the Trump Court has become.”
The conflict over the court and its politics may be in the headlines now. But history shows that political wrangling over the court’s ideological bias is nothing new.
In the 1860s, President Abraham Lincoln worked with other Republicans to shape the Court to carry out his party’s pro-Union, anti-slavery agenda. It was a time when the court was unabashedly a “partisan creature,” in the words of historian Rachel Shelden.
Judge John Catron had advised Democrat James K. Polk’s 1844 presidential campaign, and Judge John McLean was a serial presidential candidate in a black robe. And in the 1860s, Republican leaders would change the number of justices and the political balance of the Court to ensure their party’s dominance in their direction.
Reshaping the field
When Lincoln became president in 1861, seven Southern states had already seceded from the Union, but half of the Supreme Court justices were Southerners, including Chief Justice Roger B. Taney of Maryland. Another southern member had died in 1860, without replacement. All were designated Democrats.
The court was “the last bastion of power in the South,” according to a Northern editor. Five sitting justices were among the court’s 7-2 majority in the racist ruling Dred Scott v. Sandford of 1857, in which Taney wrote that Negroes were “so inferior that they had no rights which the white man was bound to respect, and that the Negro could justly and lawfully be reduced to slavery for his benefit.”
Some Republicans declared that it was “the duty of the Republican Party to reorganize the Federal Court and overturn that decision, which … dishonors the judicial department of the Federal Government.”
After Lincoln summoned 75,000 volunteers in April 1861 to put down the southern rebellion, four more states seceded. So did Justice John Archibald Campbell of Georgia, who resigned on April 30.
Chief Justice Taney helped the Confederacy when it tried to curtail the president’s power. In May 1861, he issued an Ex Parte Merryman writ of habeas corpus declaring that the president could not arbitrarily detain citizens suspected of aiding the Confederacy. Lincoln ignored the ruling.
redoing the field
To counter the court’s southern bloc, Republican leaders used judicial appointments to protect the president’s power to fight the Civil War. The Lincoln administration also hoped for Reconstruction and a ruling Republican majority.
Nine months into his term, Lincoln declared that “the country as a whole has outgrown our present judicial system,” which since 1837 had comprised nine federal court jurisdictions, or “circuits.” Supreme Court justices toured the circuit, presiding over those federal courts.
Republicans passed the Judiciary Act of 1862, reforming the federal court system by reducing the federal circuits in the South from five to three, while the circuits in the North were expanded from four to six. The old 9th Circuit, for example, included only Arkansas and Mississippi. Instead, the new ninth included Missouri, Kansas, Iowa and Minnesota. Arkansas became part of the sixth, and Mississippi, of the fifth.
In 1862, after Campbell’s resignation and McLean’s death, Lincoln held three open seats on the Supreme Court with Republican loyalists Noah H. Swayne of Ohio, Samuel Freeman Miller of Iowa, and David Davis of Illinois. The high court now included three Republicans and three Southerners.
The 1863 Prize cases tested whether the Republicans had succeeded in securing a friendly court. The question was whether the Union could seize American ships sailing into blockaded Confederate ports. In a 5-4 ruling, the high court, including the three Lincoln appointees, said yes.
Congressional Republicans saw a way to expand the court while resolving what amounted to a geopolitical judicial problem. In 1863, Congress created a new 10th Circuit by adding Oregon, which had become a state in 1859, to the California Circuit. The Tenth Circuit Act also added a tenth Supreme Court justice. Lincoln elevated pro-Union Democrat Stephen Field to that post.
And after Chief Justice Taney died in 1864, Lincoln selected his political rival, Secretary of the Treasury Salmon P. Chase, an architect of national monetary policy, to replace him. Under Chase, Lincoln succeeded in creating a higher court in favor of the administration.
Unpacking the pitch
After Lincoln’s assassination in April 1865, his successor, President Andrew Johnson of Tennessee, soon began to undo Lincoln’s achievements. He was a Union Democrat who was given the vice presidency like an olive branch to the south. He repaid that gesture in part by pardoning the Confederate rank-and-file. Johnson also opposed civil rights for newly freed African Americans.
He also threatened to appoint like-minded judges. But the Republican-dominated Congress prevented Johnson from elevating the unreconstructed rebels to the high court. The Judicial Circuits Act of 1866 reduced the number of federal circuits to seven and held that Supreme Court vacancies would not be filled until only seven justices remained.
The Democratic editor of the Philadelphia Evening Telegraph sighed that Republicans at least “can’t pack the Supreme Court right now.”
courting paper money
The Republicans refused to consider nominating Johnson in 1868, choosing General Ulysses S. Grant instead. He won, and after President Grant’s inauguration, Congress passed the Circuit Judges Act of 1869, bringing the number of Supreme Court justices back to nine.
Shortly thereafter, the Republicans faced a financial problem of their own making.
Beginning in 1862, Congress passed three legal tender acts, initially to help finance the war, authorizing debt payments using paper money not backed by gold or silver. Then-Treasury Secretary and current Chief Justice Salmon P. Chase had crafted the legislation.
But in a case from 1870, Hepburn v. Griswold, Chase reversed in a 4-3 decision, declaring the Legal Tender Laws unconstitutional. That threatened national monetary policy and Republicans’ comfortable relationship with industries that depend on government patronage.
President Grant, bracing himself for Chase’s ruling, was already working on a political solution. On the day of Hepburn’s decision, he nominated two pro-paper money Supreme Court candidates, William Strong of Pennsylvania and Joseph P. Bradley of New York. Comparing the Republican administration to “a brokerage office,” one Democratic newspaper howled that “the attempt to pack the Supreme Court to secure a desired judicial decision… [has] it brought shame and humiliation to an entire people.”
It also brought a Republican majority to the high court for the first time.
Chief Justice Chase opposed reviewing the issue of paper money. But the Supreme Court reversed course and ruled 5-4 in the 1871 Knox v. Lee and Parker v. Davis that the government could indeed print paper money to pay off debts. Chase died in 1873, and his successor, Morrison Waite, championed the pro-business Republican agenda.
careful what you wish for
The Republican transformation of the federal judiciary in the 1860s and 1870s served the party well in the Civil War and built a legal framework for a modernizing industrial economy.
But in the end, the Lincoln and Grant Supreme Court appointments ended up being disastrous for civil rights. Justices Bradley, Miller, Strong, and Waite tended to restrict civil rights protections such as the 14th Amendment, which guarantees equal protection under the laws. Subsequent rulings destroyed the civil rights of blacks.
By remaking the court in the image of the Republicans, the party got what it wanted, but not what it needed to fulfill the promise of “a new birth of liberty.”
This article is an update to a story that was originally published on October 12, 2020.