Surprise: Partisan 19th Century Supreme Courts

But Lincoln Waited

Abraham Lincoln thinking in his untidy world. Free Art

Supreme Court’s Chief Justice Roger Taney died October 12, 1864, in an election year. Not unexpectedly, as he had been ill most of Lincoln’s first term. At the time of Taney’s death, Lincoln was in the thick of his re-election campaign and in the fourth year of the Civil War that he hoped to conclude soon, but it alluded and frustrated him.

John Hay, Lincoln’s wordsmith, wrote of Taney in his diary that night: “Already (before his old clay is cold), they begin to canvass vigorously for his successor.” Chase men say the place is promised to their magnifico.” (1) Lincoln had several cabinet members competing, but primarily his former Secretary of Treasury, whose resignation Lincoln had accepted earlier because Chase was working against him politically.

Lincoln let the question of Taney’s replacement on the Court settle a bit, not rushing to fill the seat before the election. He took time to consider which choice would benefit him most after the election and the nation after the war. He could have sent around the name of a person he favored, but he didn’t have the experience of the “Big Reveal” that came 170 years later. In reality, there would not have been enough time to nominate, pay respects to Senators (some of whom were out campaigning for Lincoln), and bring them back for a vote before the election.

In the meantime, Lincoln made it clear that he expected loyalty, which included campaigning on his behalf. Former Ohio Senator, Governor, and former Secretary of Treasury Salmon P. Chase went to the Midwest and barnstormed for Lincoln (he really wanted to be Chief Justice (2). Rumors of a bargain surfaced. (3)

Lincoln won election to a second term on November 8, 1864, immediately focusing on the war effort after re-election, then turned to consideration of a Chief Justice. He knew that despite Chase’s multiple flaws, including naked ambition, imperious nature and arrogant style, the President believed that on the two critical, fundamental articles of his political faith—abomination of slavery and the righteousness of the war effort—Chase was a true ally, according to Michael Kahn, President of the Board of Directors for President Lincoln’s Cottage.(4)  

Legend held that Lincoln said he would “rather have swallowed his buckhorn chair than to have nominated Chase,” according to J.G. Randall and Richard N. Current, Lincoln the President: Last Full Measure. (5) Maybe buckhorn chairs passed for “crow” back then.

Lincoln followed a pattern established from his first election—attempting to harness and co-opt Chase’s political and personal power to use in his own causes. But in these two critical areas, Lincoln did not have to strain because the two men were to grab a phrase from Forest Gump, “like two peas in a pod” in their fundamental beliefs. On December 6, 1864, Lincoln nominated Chase and sent his name to the Senate, which approved him by unanimous consent.

In all Lincoln nominated five jurists to the Supreme Court during his Presidency. In 1862, John Campbell, known as a Confederate firebrand, left the Court to go South to be named Assistant Secretary of War in the Confederacy. Another Justice died (before Taney) and they expanded the court to ten (still determining why). Of some interest as the partisan question is considered, Lincoln named a friend he made from the Illinois Eighth Circuit, David Davis, who remained a friend throughout their lives. Later Davis became the executor of the Lincoln estate. He was one of a trio who managed Lincoln’s Presidential campaign in 1860.

Lincoln nominated Davis as a recess appointment, when Congress was not in session in 1862. Davis wrote the opinion that year limiting the authority of military courts to try civilians that is seen as a restraint on arbitrary military power to this day. He became a member of the 1872 Electoral Commission that would resolve the 1876 Presidential election, just as the 2000 Court would do, but he resigned to take a seat as Illinois Senator (a seat for which I presume he campaigned). It wasn’t until the 1960s that politicians were not considered for positions on the Supreme Court in favor of sitting jurors on the federal courts.

Slowly Change Occurs

Quick review: Chase’s predecessor Chief Justice Roger Taney resided over the Dred Scott Decision (7-2) March 6, 1857, ruling that Blacks were not included in the U.S. Constitution as citizens and did not have the rights and privileges the Constitution confers, regardless of being slave or free. This ruling was overturned by Constitutional amendments XIII, XIV, XV and the Civil Rights Act of 1866, just after the end of the Civil War.

Chase was installed as Chief Justice on December 15, 1864. John S. Rock, an African-American lawyer, was the first of his race admitted to practice before the Supreme Court on February 1, 1865 on a motion by Senator Sumner (who had lobbied Lincoln ceaselessly for Chase), which assured Rock’s acceptance.(6)

Notes:

(1) Quoted in Benjamin P. Thomas, Abraham Lincoln: A biography, (New York: Alfred A. Knoph, 1952)   at 491.

(2) David H. Donald, Lincoln (New York: Simon and Schuster, 1995), at 536.

(3) J.G. Randall and Richard N. Current, Lincoln the President: Last Full Measure (New York: Dodd, Mead and Company, 1955), at 273.

(4) Michael Kahn, “Lincoln Names a Chief Justice,” Abraham Lincoln’s Appointments to the Supreme Court: A Master Politician at his Craft,” Journal of Supreme Court History 1997, Vol. II.https://www.lincolncottage.org/lincolns-election-year-supreme-court-nominee/

(5) J.G. Randall and Richard N. Current, Lincoln the President: Last Full Measure (New York: Dodd, Mead and Company, 1955), at 271.

(6) David M. Silver, Lincoln’s Supreme Court (Urbana, Il.: The University of Illinois Press, 1987), at 203.

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