A People's History of the Supreme Court

by Peter Irons

  Congress handed Lincoln a judicial “bonus” in 1863, when it increased the Court’s membership to ten. This move reflected the growing population and influence of the western states, which gained a new judicial circuit that year. It also ensured, with Chief Justice Taney still alive, that he would be unable to frustrate the Union’s war powers. (Congress reduced the number of seats to seven in 1866, and returned it to nine in 1869, both moves dictated by political factors.) Lincoln’s choice for this extra seat won quick approval and widespread approbation. Stephen Field of California, although a nominal Democrat, staunchly backed the Union and had distinguished himself as California’s chief justice. Field served until 1897, almost to the century’s end, and followed his own admonition that judges must speak with “absolute fearlessness” of the consequences. During thirty four years on the Court, he wrote 640 opinions, dissented in 220 cases, and became the leading judicial advocate of laissez-faire economics during a period of intense conflict over governmental regulation of business and industry.

  Roger Taney remained on the Court until his death in 1864, increasingly feeble but dependent on his salary to support two daughters. Few mourned his passing. One critic wrote that Taney “has earned the gratitude of his country by dying at last. Better late than never.” Professing charity in its judgment, the New York Times concluded that Taney’s Dred Scott opinion had been “an act of supreme folly, and its shadow will ever rest on his memory.”

  Before we leave the Taney Court and move into the Reconstruction period, we should consider one last question about the man who served as Chief Justice for almost thirty years, during a period of explosive growth and explosive conflict in American history. What made Roger Taney not only a racist but a man who could not divorce his personal views from his judicial duty? He was born into a slave owning family, but so were many men who rejected and fought against slavery. Unlike them, Taney was infected with racism, unwilling to look at men like Dred Scott as fellow humans, let alone as fellow citizens. In his hands, the Constitution was rewritten as a proslavery charter. It, is true that the Framers recognized slavery in the Constitution, as the price for the “Great Compromise” that created the Union, but they did not intend that the federal government must protect slavery and allow its expansion across the continent.

  Lincoln correctly charged Taney with trying to “nationalize slavery” by his twisted and tortured reading of the Constitution in Dred Scott. That his opinion was ultimately reversed by constitutional amendment is no consolation to the hundreds of thousands of young men who died after the Supreme Court shot holes through the Constitution. It is fitting to speak ill of the dead when they committed acts of infamy. Taney wrote an infamous opinion in Dred Scott, and no later judgments of his judicial “greatness” can remove that stain from the Court’s history.

  But those who write history often close their eyes to the human cost of infamous decisions by famous men. “It is a pity that Taney is so often remembered by that case rather than by his supreme accomplishments in achieving governmental concord and constitutional understanding,” wrote an academic apologist who viewed Dred Scott as “an attempt to stem the oncoming tide of civil war,” an astounding and appalling judgment. Without a moral compass, historians risk becoming lost in an intellectual desert, beguiled by the mirage of “objectivity” that recedes as one treks through “facts” that pile up like grains of sand. The carnage of the Civil War is an objective fact, and to absolve Taney of blame for his role in firing a judicial cannon at the Constitution is an affront to the sacrifice of those who died to save the Union he tried to sunder. The Supreme Court has never fully healed from the “self-inflicted wound” that Taney caused in Dred Scott, to use the apt term of a later Chief Justice, Charles Evans Hughes.

  Taney’s death offered Lincoln the chance to replace his judicial nemesis with a staunch opponent of slavery, one who supported the president’s bold assertion of war powers and his program for postwar “reconstruction” of the South. The obvious choice was Salmon P. Chase of Ohio, former senator, governor, and treasury secretary in Lincoln’s cabinet before his abrupt resignation in 1864. His antislavery credentials were impeccable; during the 1840s his legal defense of fugitive slaves gained him fame (or infamy, depending on one’s views) as “Attorney General for Runaway Negroes.” However, Chase had one serious disability: his intense political ambition placed him at odds with Lincoln. Chase had been a candidate for the Republican presidential nomination in 1860 and considered another contest against Lincoln in 1864, although he finally withdrew from contention. The president still doubted that Chase would refrain from campaigning for office from the Supreme Court bench.

  Given this problem, Lincoln considered at least ten other men, including three sitting justices and three cabinet members. His personal choice was Montgomery Blair, a close friend and counsel for Dred Scott before the Supreme Court. However, Blair had feuded with Chase, who enjoyed the backing of the growing “Radical Republican” bloc in Congress, those who pressed for harsh measures against the South as the Union neared final victory in the bloody war. Lincoln also recognized that Chase—unlike Blair—had the political stature and personal magnetism to effectively lead a Court whose prestige and power had eroded under Chief Justice Taney. Despite his misgivings about Chase, Lincoln nominated his political rival to the nation’s highest judicial office on December 6, 1864. The Senate confirmed its former member the same day, without even the formality of committee hearings.

  The Civil War ended when General Robert E. Lee surrendered his army—and his failed cause—to General Ulysses S. Grant at Appomattox Court House in Virginia on April 9, 1865. What the Union gained in victory the divided nation lost in blood. Just one month earlier, on March 4, Abraham Lincoln delivered his second inaugural address. The previous November, he had defeated the Democratic candidate, George McClellan, who headed the Union armies until Lincoln dismissed him in 1862 after the disastrous defeat at Antietam Creek in Maryland. In his first inaugural speech, Lincoln had discussed the Constitution for more than an hour; now he delivered a brief homily that drew its inspiration and text from the Bible. With military victory in sight, he spoke to the South in words of reconciliation. “With malice toward none, with charity for all,” Lincoln said, let us “bind up the nation’s wounds” and fashion “a just and lasting peace” between the warring sections. But he spoke also of the slaves whose “every drop of blood drawn by the lash” had been their only payment for “two hundred and fifty years of unrequited toil” in the service of their owners.

  One month later, on April 11, 1865, Lincoln made his last public reference to the Constitution, in his last public address. Speaking from a White House window to a crowd that had gathered to celebrate the Union victory, he briefly thanked General Grant and his troops, but moved quickly to his plans for “reconstruction” of the Union. Lincoln spoke at length of “the constitutional amendment recently passed by Congress, abolishing slavery throughout the nation.” He praised the former Confederate state of Louisiana for being the first to ratify the Thirteenth Amendment and for “giving the benefit of public schools equally to black and white, and empowering the legislature to confer the elective franchise upon the colored man.”

  These words in support of the Thirteenth Amendment cost Lincoln his life. Among the crowd on the White House lawn was an actor named John Wilkes Booth, who became so enraged at Lincoln’s support of voting by former slaves that he vowed the president would never make another speech. Three nights later, on April 14, Lincoln and his wife attended a play at Ford’s Theatre in Washington. Booth entered the president’s box, which was not guarded, and shot him in the head with a pistol. Leaping from the box onto the stage, Booth shouted, “Sic semper tyrannis!” and fled from the theater. His cry, “Thus always to tyrants,” voiced the sentiments of the diehard Confederates who refused to surrender their support for white supremacy, even after the Thirteenth Amendment abolished slavery.

  Linc
oln died the next day, a martyr to the Constitution whose protections he had worked to extend to all Americans, white and black. While the nation struggled to recover from this shock, Booth—who broke a leg in his escape—took refuge on a Maryland farm. He was tracked down by Union troops on April 26 and shot to death in a blazing barn. Eight men charged as fellow conspirators with Booth were later convicted, and four went to the gallows for their parts in the plot to kill the president.

  Lincoln’s death, so soon after the Union victory, badly damaged the Reconstruction program he had labored to fashion over the preceding months. His successor, Vice President Andrew Johnson of Tennessee, was a former Democrat and slave owner who had served in both houses of Congress and as his state’s governor. Despite his electoral success and his prowess as a forceful stump speaker, Johnson had little of Lincoln’s political skills or forensic talents. He was crude and intemperate in speech and habits, prone to losing his temper when confronted by hecklers. He owed his place on the Republican ticket largely to his residence in one of the border states in which Lincoln was unpopular.

  The Radical Republicans who controlled Congress initially welcomed Johnson, believing his proclamations of support for black suffrage in the South, which they considered the foundation of Reconstruction. “Johnson, we have faith in you,” declared Senator Benjamin Wade of Ohio, a tire-breathing Radical. But Wade and his fellow Radicals soon lost their faith, as Johnson waffled on black suffrage and pardoned many former Confederate officials—including governors, generals, and even the rebel vice president—for their “treason” against the Union, allowing them to take seats in Congress.

  By 1868, Johnson’s reluctance to implement the congressional Reconstruction program led to his impeachment by the House and trial in the Senate, over which Chief justice Chase presided with strict adherence to rules of evidence. The “high crimes and misdemeanors” of which Johnson stood accused stemmed largely from his dismissal of Secretary of War Edwin Stanton, who sided with the Radicals in debates over Reconstruction. Senator Wade (who stood to become president if Johnson was convicted) voted to remove the man he had earlier praised, but seven Republican senators refused to convict Johnson for what were clearly political offenses, and he survived by a one-vote margin.

  The unsuccessful effort by Radical Republicans to remove President Jonhson had a twofold effect on the Constitution. First, his continued refusal to provide federal protection of black suffrage in the South and his unwillingness to implement the “ironclad” loyalty oath that Congress had imposed on Confederate supporters as a condition for voting and holding public office emboldened white southerners to stiffen their resistance to Reconstruction programs and laws. Second, his reluctance to fulfill his constitutional obligation to “take care that the laws be faithfully executed” spurred the Radical Republicans to provide “ironclad” guaranties of black citizenship and voting rights in the Constitution. The Fourteenth and Fifteenth Amendments, ratified in 1868 and 1870, both provided that Congress had power “by appropriate legislation” to enforce their protections of civil rights for the former slaves. Resistance to their legislative enforcement confronted the Supreme Court with its most difficult task since the Dred Scott case. Once again, the Court failed to perform its constitutional duty.

  Before the Court dealt with laws that affected the rights of newly freed slaves, it grappled with presidential orders designed to punish those who gave “aid and support” to the Confederacy. The case of Lambdin P. Milligan, which began during the war in 1864, tested the powers of all three branches of government in dealing with civilians during wartime. The facts of the case were alarming to the Union. Milligan was a lawyer and a fervent Democrat who lived in southern Indiana, a stronghold of Confederate sympathy. He attracted the attention of Union officials by organizing groups that openly espoused the southern cause, with names like the Order of American Knights and the Sons of Liberty. Milligan also participated in efforts to persuade draft-age men to refuse military service in the Union army. Known as “Copperheads,” after the poisonous snake whose brown-and-copper skin provided camouflage among fallen leaves, men like Milligan posed a threat to Union force in midwestern states from Ohio to Missouri.

  Faced with demands from Union generals to allow them to arrest and punish these disloyal civilians, President Lincoln gave military commanders broad powers to establish military courts that could try accused Copperheads; he also issued orders suspending the right of habeas corpus in certain areas, including southern Indiana. These orders prevented anyone arrested by the military from asking civilian judges to rule on the legality of their detention. Lincoln’s actions posed a serious constitutional question: Section 9 of Article I provides that “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” The Civil War obviously constituted a rebellion, but Article I grants legislative powers to Congress, not to the president. And if civilian courts were operating in areas free of armed conflict, was the “public safety” sufficiently threatened to displace their jurisdiction over those accused of violating federal law?

  Not only did Milligan and the Copperheads who worked with him agitate against the war, but military officials suspected them of hatching plots to steal Union munitions and then raid prisoner of war camps in Ohio, Indiana, and Illinois. The Confederate soldiers freed and armed by the conspirators could then take control of the three states. Alarmed by reports of this plot, military agents followed Milligan and compiled records of his movements and meetings. On October 5, 1864, General Alvin Hovey authorised Milligan’s arrest; he was seized at his home and tried before a military tribunal in Indianapolis later that month, along with four men charged with conspiring with him. The military court, whose members were all army officers, convicted Milligan and sentenced him to hang, but they set his execution for May 1865. It is unclear why the sentence was deferred for seven months after trial, but the delay gave Milligan time to challenge his conviction in federal court. Just after Lee surrendered at Appomattox, Milligan filed a habeas corpus petition, arguing that he had been illegally arrested and tried.

  Milligan’s case—under the caption Ex parte Milligan—reached the Supreme Court after Lincoln’s assassination, which reduced the pressure to support the president during wartime. In addition to this advantage, the convicted Copperhead had three more on his side. First, a federal grand jury had met in January 1865, after his military trial, and had declined to indict Milligan for any crime. Second, his legal team before the Supreme Court included David Dudley Field, a noted New York lawyer and brother of Justice Stephen Field. And third, the Constitution was clear—in the Sixth Amendment—on the right of criminal defendants to a jury trial. The question that remained was whether the president had power to establish military tribunals and suspend habeas corpus while civilian courts were open and functioning.

  The Court had no difficulty in reaching a unanimous decision in December 1866 that Milligan had been unlawfully tried and convicted. Writing for the Court, Justice David Davis acknowledged that the “late wicked Rebellion” had roiled passions and prevented “that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question.” He posed the question in these words: “Had this tribunal the legal power and authority to try and punish this man?” The answer was simple: no. Davis put his conclusion in these words: “Martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration.” Indiana had not been invaded by Confederate forces, and the civilian courts remained open during the war.

  The Court’s decision freed Milligan and saved his life. But Justice Davis did not stop with a narrow ruling: he felt compelled to lecture Congress and the president on their constitutional responsibilities. “The Constitution of the United States is a law for rulers and people, equally in war and peace, and
covers with the shield of its protection all classes of men, at all times, and under all circumstances,” Davis wrote. “No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence; as has happily been proved by the result of the great effort to throw off its just authority.”

  Even those who sought to subvert the Union, Davis ruled, were as much entitled to the Constitution’s protection as those who fought to maintain it. The Milligan doctrine of “one law in war and peace” would later be tested—and rejected—by the Supreme Court in several wartime cases. During World War I, Justice Oliver Wendell Holmes upheld a “sedition” conviction for obstructing the draft. “When a nation is at war many things that might be said in times of peace are such a hindrance to its effort,” Holmes wrote, “that no court could regard them as protected by any constitutional right.” And during World War II, the justices upheld military orders that forced all Americans of Japanese ancestry into concentration camps, without charges or trial. These later cases show how the “great exigencies of government” can blind the Court to the clear text of the Constitution.