Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court

by James Macgregor Burns

  The opinion was read by Grier, who in vigorous terms dismissed the shipowners’ claims. “A civil war is never solemnly declared,” he said. When the South commenced its rebellion, “the president was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name.” It was a matter of fact, not of law. “To affect a technical ignorance” of “the greatest civil war known in the history of the human race” would “cripple the arm of the Government and paralyze its power by subtle definitions and ingenious sophisms.” The president had acted within the Constitution by treating the rebels as belligerents, “and this Court must be governed by the decisions and acts of the political department”—a deference to politics that the court, Grier included, had failed to show to the Missouri Compromise.

  To demonstrate how far astray the court might have gone had Taney been able to swing a single vote, Nelson’s dissenting opinion held that Lincoln had acted unconstitutionally by waging war on the South before Congress declared it. The existence of a state of war was a matter of law, not of fact, and Lincoln’s war was illegal, a “personal” war against the South. It was a startling construction—that a president of the United States might mobilize all its resources to wage a “personal” war on half of the nation.

  The Prize Cases decision was dramatic evidence that a new majority on the court was unwilling to challenge the political branches in the midst of the war. To finance the military, Congress in February 1862 passed the Legal Tender Act, which for the first time allowed the Treasury to print paper money—“greenbacks,” or as Taney called them, the “paper trash of the government”—backed not by specie, but by the government’s good faith. When a case challenging the measure’s constitutionality reached the Supreme Court, fears spread that a decision that struck down the act would destroy the North’s ability to pay for the war. But in June 1863, the court, with the chief justice again indisposed and not taking part, sidestepped the issue. It denied jurisdiction, allowing a lower court’s ruling in the law’s favor to stand.

  WAGING A FEROCIOUS civil war for the survival of the Union, the Lincoln administration feared the subversive influence of Southern sympathizers and spies in the North and on battle fronts. It responded with limitations of civil rights and liberties, most controversially the president’s suspension of habeas corpus. Disregarding Merryman, the administration broadened its use of martial law throughout the war, extending it in September 1862 to “all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to Rebels.” Military commissions were set up to try detainees, even where civil courts were functioning. In the course of the war, the military arrested some eighteen thousand civilians, though most were quickly released on a promise not to resume “disloyal” activities.

  For two years, the writ of habeas corpus was suspended solely on Lincoln’s authority, a use of presidential power that disturbed not only Taney and other anti-administration Democrats, but many Republicans as well. Even an old Whig, retired Justice Curtis, Taney’s scourge in Dred Scott and a warm supporter of the Union cause, saw Lincoln’s September 1862 extension of martial law as a watershed. By Lincoln’s doctrine of necessity, Curtis warned, the president might “disregard each and every provision of the Constitution, and . . . exercise all power, needful, in his opinion, to enable him ‘best to subdue the enemy.’ ” The answer, Curtis believed, was to restore the balance of powers among the three federal branches, beginning with congressional action on Lincoln’s suspension of the writ.

  But for two years Congress failed to act. When it had reconvened in July 1861, Congress confirmed most of Lincoln’s unilateral war measures but not his suspension of habeas corpus. For eighteen months, Congress debated the issue repeatedly but could not decide what to do. Some opposed the suspension but were unwilling to rebuke the administration in time of war. Others backed it, but were stuck on a constitutional question: did the president derive his power to suspend the writ directly from the Constitution or must Congress delegate it to him? Lincoln’s September 1862 proclamation spurred action, but not without more months of bitter debate. Finally, in March 1863, Congress passed a bill stating that the president “is authorized to suspend” habeas corpus. Uncertain to the last, the legislators left unclear whether that authorization came from Congress or the Constitution.

  Such a fine-grained constitutional issue seemed ready-made for the Supreme Court to decide, but in fact the wartime court never ruled on the writ’s suspension, while lower courts almost invariably deferred to executive power. Even Justice Clifford, sitting in circuit in Boston, declined to challenge Lincoln. Much as Taney had earlier, Clifford issued a writ for a Southern sympathizer held by the military. But when the writ was rejected, Clifford released no indignant blast. He simply dropped the matter, saying the courts had no power to enforce the writ.

  But neither was the administration eager for a test in the courts, especially not in Roger Taney’s. In December 1862, the Wisconsin Supreme Court had ruled unanimously that the president lacked the power to suspend habeas corpus. To avoid a confrontation with the military, though, the court had issued no enforcement order and invited the federal Supreme Court to make the final decision. It was up to the administration to appeal the adverse finding, which Edwin Stanton, Lincoln’s secretary of war, was ready to do, until Attorney General Edward Bates intervened. Bates had little doubt that, even with three Lincoln appointees, the court’s majority was of Taney’s “political school” and would deal the administration a devastating defeat. Bates managed to delay the appeal for months until Congress passed its Habeas Corpus Act. The Wisconsin court, deferring to Congress, withdrew its ruling.

  The mutual prudence and wariness of the Supreme Court and the Lincoln administration was evident in the case of Clement Vallandigham. The former Ohio congressman had become one of the most vivid and vituperative Northern foes of the war, damning it as “wicked, cruel, and unnecessary” and urging Northerners to knock “King Lincoln” from his throne. For his “disloyal sentiments and opinions,” Vallandigham was arrested in May 1863—like Merryman, in his home in the middle of the night by a squadron of soldiers—and tried and convicted by a military commission, then sentenced to “close confinement in some fortress” for the war’s duration. Vallandigham immediately filed a petition in federal court for habeas corpus, disputing the military commission’s constitutionality. The judge dismissed the plea, writing that “when the national life is in peril,” it would be “an unwarrantable exercise of the judicial power” to question the acts of the president. This was no time, he said, to “embarrass” Lincoln.

  It was already too late for that. Even Republican politicians and newspapers attacked the government’s suppression of free speech. Lincoln, who had had nothing to do with Vallandigham’s arrest, sought to rid himself of the problem by commuting Vallandigham’s sentence to banishment behind enemy lines.

  But the “wily agitator,” as Lincoln called him, was determined to get his case before the Supreme Court, where, he figured, the mixed bench of Taneyites and Lincoln men would become embroiled in conflict over his arrest and the president’s war powers. While Vallandigham made his base in Ontario, his lawyer appeared before the justices in January 1864 to argue that, since the military commission acted as a court, the Supreme Court could and should review its proceedings, particularly whether it had jurisdiction over civilians like Vallandigham, and if so, whether Vallandigham had been properly charged. The government simply contended that the commission was not a court; it was a military body created on the president’s authority to deal with military issues. That put it beyond the reach of judicial review.

  In a unanimous opinion, the court closed all doors to Vallandigham. It declined to look into the charges against him or the military commission’s jurisdiction. But neither was the decision a vindication of the military’s treatment of Vallandigham. To have attempted either would probably have split the court,
as Vallandigham had intended. Instead, the opinion was narrowly confined to the Supreme Court’s jurisdiction over military commissions, deciding that nothing empowered the court “to review or pronounce any opinion upon the proceedings of a military commission.” The Supreme Court had spoken as one—but in silence over the arrests of civilians, the denials of habeas corpus, the military trials, and the powers of the president in whose name these things occurred.

  That unanimity—and silence—very possibly would not have been achieved had Taney participated in the decision, but once again he was indisposed, ill at home, one of the many forced absences from his seat at the head of the Supreme Court. Shunned by the capital’s new Republican and Unionist political establishment, trapped in what he described as the “foul and corrupt atmosphere of Washington,” the chief justice spent many long hours brooding, frustrated by his powerlessness to check Lincoln, making notes for cases that had not yet come before the court and for some that never would. Legal tender?—unconstitutional. Conscription?—unconstitutional. Taxes on judicial salaries?—unconstitutional. Had it come before the Supreme Court, would Taney have found the Emancipation Proclamation—which Lincoln offered not as an act of liberation but as a “necessary war measure”—unconstitutional? The administration feared that the chief justice and his brethren would. Abolitionists were certain of it: “the hot-new purpose of today” would be “filtered through the secession heart” of Roger B. Taney, Wendell Phillips thundered, and “tested and measured by the fossil prejudice and iron precedents of a century back.” But, Phillips warned, “Don’t try to bind earthquakes with parchment bands! ”

  To this, Taney might have replied, as he wrote in 1863, that civil war could not “absolve the judicial department from the duty of maintaining with an even and firm hand the rights and powers of the Federal Government, and of the States, and of the citizens, as they are written in the Constitution which every judge is sworn to support.” Taney still longed to do his duty, to restore the court to its place at the center of action as the supreme arbiter of rights and powers, to do battle in defense of the Constitution, but now the fighting was on different fronts, on other terms, a long way from Taney’s roots in Jacksonian America. He was not the first justice, nor would he be the last, to outlive the political era that raised him to the Supreme Court. But now it was Lincoln’s time.

  CHAPTER FIVE

  Deconstruction: Republican Reversal

  DURING THE three decades after the Civil War, Americans endured some of the most wrenching economic and social changes in the nation’s history. Confederate soldiers returned to a transformed world of devastated farms, where newly freed blacks struggled to find their own footing. Northerners shifted from war privation to a growing industrial economy of boom and bust. In those three decades, the nation’s population would double, from around 35 million to 70 million. Huge numbers of immigrants would encounter the delights and disillusionments of a strange culture. Railroads would spearhead changes in old cities and new frontiers.

  Who would preside over the daunting problems posed by the nation’s reconstruction after the Civil War and its social and economic transformation? As it turned out, some of the most inadequate or unfit presidents in the nation’s history: Andrew Johnson, who succeeded Lincoln after his assassination in April 1865 and was immobilized by a hostile Congress; Ulysses S. Grant, a war hero baffled by postwar problems; then a series of Republican single-termers, Rutherford B. Hayes, James A. Garfield, succeeded after his assassination by Chester A. Arthur, and Benjamin Harrison, who was bracketed by the separate single terms of Democrat Grover Cleveland.

  And what sort of men, appointed to the Supreme Court by these presidents, would deal directly with the aftermath of the Civil War and the endless conflict arising from an ever-changing polity and economy? Decades of Republican dominance meant that most of the justices would come out of the party of Lincoln, the party empowered by his vision of an indissoluble Union dedicated to the Founding principles of equal and inalienable rights to life, liberty, and the pursuit of happiness. “This terrible war,” Lincoln had declared in his second Inaugural Address, was a judgment on American slavery, necessary to remove “the offence.” The war’s dual purposes—Union and liberation—had become intertwined. And, as Lincoln told a Union general in July 1863, seven months after he issued the Emancipation Proclamation, there could be no turning back. “Those who shall have tasted actual freedom I believe can never be slaves, or quasi slaves again.”

  But the justices of the Supreme Court—the Lincoln men and those appointed by his successors—would betray the “new birth of freedom” for all Americans that Lincoln had promised at Get tysburg. In the postwar decades, liberty would be broadened for some—mainly entrepreneurs and speculators, those who possessed or scrambled after riches. Even corporations would come to be endowed with the full dignity of citizenship. But for many millions of others—the poor and working classes and, above all, the freed slaves—the space of freedom would shrink as the nation’s wealth and power burgeoned. The Union would be reknit, but with the sacrifice of black equality and liberty in the betrayals of Reconstruction.

  THE TRAGEDIES of postwar America began with triumphs. The proposed Thirteenth Amendment, abolishing slavery, passed the House of Representatives in January 1865 after Republicans picked up just enough seats in the 1864 elections for the needed two-thirds majority. The climactic House vote set off wild cheering, with some members in tears of joy. After the Confederacy’s surrender a few months later, Reconstruction appeared to be on the way. When a wave of terrorism against blacks—lynchings, pillages, and massacres—swept through the South, outraged Republicans passed the Civil Rights Act of 1866, granting full citizenship to all native-born Americans and guaranteeing them “full and equal benefit” of the laws and “security of person and property.” The act empowered the federal government to enforce these guarantees.

  President Johnson, already suspect in Republican eyes for Reconstruction policies too weak to protect beleaguered freedmen, vetoed the measure, only to be overridden by Congress. The struggle persuaded Republican leaders that guarantees of citizenship and equal rights must be written into the Constitution. They passed a Fourteenth Amendment that, after recognizing the national citizenship of “all persons born or naturalized in the United States,” went on: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” These unadorned promises of “due process” and “equal protection” would become more enduring sources of conflict over their meaning than any other clauses of the Constitution. The amendment’s last section empowered Congress “to enforce, by appropriate legislation, the provisions of this article.”

  But the Fourteenth Amendment faced a daunting prospect. It would have to be ratified by two thirds of the states, including those of the South. After every state but one of the old Confederacy rejected the amendment, Congress passed the Reconstruction Act of 1867, which imposed military rule in place of the state governments that Andrew Johnson had created. Congress ordered Southern states to organize new governments with full black participation and, as a condition for representation in Congress, to ratify the Fourteenth Amendment. That was how this reversal of Taney’s Dred Scott disaster was thrust into the Constitution.

  It was followed two years later by the climactic Fifteenth Amendment, which wasted no words: “The right of citizens of the United States to vote shall not be denied by the United States or by any State on account of race, color, or previous condition of servitude.” Under the 1867 Reconstruction Act, black voting rights in the South were protected by federal troops, who organized elections and presided over the drafting of state constitutions. Turnout by black voters topped 70 percent in some areas. Blacks sat in state constitutional conventions and won seats in Congress. All t
his aroused unreconstructed Southerners to intense fear and fury, and the Ku Klux Klan and other vigilante groups mobilized across the South. In an atmosphere of anger and mistrust, congressional Republicans responded with a series of harsh laws to enforce the Reconstruction Amendments—especially the 1871 Ku Klux Klan Act providing that persons conspiring to “injure, oppress, threaten, or intimidate any citizen” or threaten the exercise of his constitutional rights could be prosecuted in federal court.

  Nationally Democrats and Republicans were returning to the traditional two-party contests and compromises of American politics, and as they did the radical thrust of Reconstruction was inevitably blunted. The Republicans were split between radicals and moderates, though united against Andrew Johnson, impeaching him for what they saw as his alliance with white Southerners to restore the prewar political order and reduce freedmen to peons. Johnson escaped conviction in the Senate by one vote. Luckily for the Republicans, they had in hand a new hero to unite them—Ulysses S. Grant, who had led the Union armies to victory. At the 1868 convention in Chicago, General Grant carried the party’s nomination on the first ballot. For their part, Democrats were reuniting the wings of their party. Northerners secured the nomination of Horatio Seymour, former governor of New York, but he ran on a Southern platform of opposition to Reconstruction. In November 1868, Grant won twenty-six of thirty-four states and 214 of 294 electoral votes, but his winning margin in the popular vote of merely 300,000 out of 5.7 million ballots cast suggested that the two parties were establishing a competitive balance, while the widespread intimidation of black voters in the South signaled a dimming hope for full freedom and equality for black citizens.