Yet Taney’s was the voice that counted, and its effect on the political branches was devastating. The chief justice, who had aspired to break the country’s political deadlock over slavery with his exercise of John Marshall’s power of judicial review, succeeded in smashing it to pieces. Two days before the opinion was read in court, on Inauguration Day, March 4, 1857, James Buchanan, tipped off by his friends among the justices, expressed to the crowd outside the Capitol his confidence that the Supreme Court would “speedily and finally” settle the territorial controversy. To its decision, he said, “I shall cheerfully submit.” It was an inauspicious start to a presidency that never would recover from Buchanan’s submission to Dred Scott.
The decision also inspired cheerful submission in the South, where John Marshall’s Supreme Court had once inspired threats of secession. Finally, Southern rights had been given their just recognition. Now, as the Augusta (Georgia) Constitutionalist crowed, the South’s opinion of slavery was “the supreme law of the land.”
Outside the South, the reaction was outrage and horror. Many Northerners interpreted it as an initial step in the nationalization of slavery, even as a dark plot involving Taney, Buchanan, and Southern extremists to impose slavery on the free states. As a Republican senator from Wisconsin paraphrased Taney’s “momentous and revolutionary” logic, if the Constitution “is the paramount law of every State; and if that recognizes slaves as property, as horses are property,” then “no State constitution or State law can abolish [slavery], or prohibit its introduction.”
Taney’s opinion finally dragged into the open issues that political moderates in the North and the South—starting with the Framers themselves—had tried to keep obscure, lest compromise for “the preservation of the Union” become impossible. By ignoring extremist claims—and slavery’s terrible realities—transactional leaders had been able to forge a middle ground. Much of that ground had eroded by 1857. There was none left after Taney put the authority of the Supreme Court on the side of the South’s pro-slavery extremists. The Democratic party irreparably broke in half, with Southern Democrats rallying behind Taney’s dogmas as the “final settlement,” while those Northerners who didn’t bolt to the Republican party clung to the tattered ideal of “popular sovereignty” in the territories.
As Taney’s main political target, Republican leaders perhaps understood the implications of Dred Scott better than others. There could be no more papering over the differences between what New York senator William Seward called “opposing and enduring forces.” It meant, he said, “that the United States must and will, sooner or later, become either entirely a slave-holding nation or entirely a free-labor nation.” It was now “an irrepressible conflict.”
CHAPTER FOUR
War Powers: Lincoln vs. Taney
“ I DO NOT FORGET the position assumed by some,” the new president declared to an expectant, anxious throng assembled in front of the Capitol in Washington for his Inauguration, “that constitutional questions are to be decided by the Supreme Court.” It was March 4, 1861, just four years after the Dred Scott decision. But, Abraham Lincoln went on, “if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made . . . the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.” It was the people, Lincoln insisted, who were the “rightful masters”—of president, court, and Constitution.
After Lincoln concluded with a plea for reconciliation between North and South, the aged chief justice of that eminent tribunal came forward to administer the oath of office. To an observer, Roger B. Taney appeared “very much agitated, and his hand shook very perceptibly with emotion.”
The Union was dissolving, with war imminent—in five weeks Confederate cannon would fire on Fort Sumter. The Republican party that had made resistance to Dred Scott its battle cry, determined to overturn “that bench-full of Southern lawyers,” had won control of the popular branches in the 1860 elections. Lincoln himself had said three years earlier, “Somebody has to reverse that decision, since it is made, and we mean to reverse it, and we mean to do it peaceably.” His inaugural remarks indicated the new president’s intent to challenge the Supreme Court’s supremacy. Meanwhile, the Democratic party, built into an electoral powerhouse by Taney’s mentor Andrew Jackson, had been shattered by the chief justice’s effort to rescue it. Northern, Southern, and border-state Democrats each nominated a presidential candidate in 1860, effectively handing the presidency to Lincoln. After the election, a rumor spread that Taney had resigned. It was not true, the chief justice wrote late in December 1860. “I am sensible that it would at this moment be highly injurious to the public.” He had expected slave rebellions to flame across the South on news of Lincoln’s victory. Instead it was the slaves’ owners who rebelled.
IN THE DECADES since Andrew Jackson’s dynamic administration, American presidents had been enfeebled by sectional conflict. Suddenly, with the country breaking apart, desperate need was met by a shock of action. President Lincoln delayed the reconvening of Congress to July 4 and proceeded to wage war as if the legislature—and judiciary—did not exist. On his own authority, he called out the militia and expanded the regular army by ten regiments; proclaimed a blockade of Southern ports and ordered the navy to buy and arm steam-boats; and gave public funds and weapons to private antisecessionists.
Lincoln’s energetic response to the Southern revolt was greeted enthusiastically in the North, but the Union government’s situation was dire. Confederate troops were massing in Virginia, across the Potomac from Washington. Maryland’s legislature teetered on the precipice of secession. Lincoln resisted advice to, as he put it, “arrest, or disperse” that body. But to prevent secessionist mobs from blocking the passage of reinforcements through Maryland to the capital, the president in late April quietly authorized the military to arrest disloyal civilians and, in order to forestall judicial interference, suspend the writ of habeas corpus.
One night a month later, Union troops arrested a wealthy Maryland secessionist, John Merryman, in his home. Alleged to have burned railroad bridges, among other treasonable acts, Merryman was imprisoned at Fort McHenry in Baltimore harbor. His attorney quickly submitted a habeas corpus petition to the judge presiding over the local federal circuit—who happened to be Roger Taney. The chief justice issued an order to Fort McHenry’s commanding general to produce Merryman. The commander refused, citing the president’s instructions, and rebuked Taney for seeking confrontation at such a time: “Errors, if any, should be on the side of the safety of the country.” Taney issued a second writ, ordering the general to a hearing, and prepared a public spectacle for the next day. When the general failed to appear, Taney declared to a Baltimore courtroom packed with reporters that Lincoln had acted unconstitutionally in suspending habeas corpus. The chief justice said his marshal might well have ordered a posse to Fort McHenry to haul the commander into court, except that such action would have been repelled by the army. With only the Constitution in his arsenal, Taney would submit a formal opinion to Lincoln calling on him “to perform his constitutional duty, to enforce the laws.”
Hastily produced and widely publicized, Taney’s opinion in Ex parte Merryman ranged far from Lincoln’s suspension of the writ to a dissertation on presidential power that was startlingly at odds with the broad and independent authority Taney had claimed for Andrew Jackson during the Bank war. Taney’s doctrine in Merryman would leave Lincoln almost powerless to respond to the rebellion. Praised by pro-Southern newspapers as “a vindication of the principles of the republic” and damned by Unionists for giving “aid and comfort to public enemies,” the opinion was met with silence by its presidential target. Lincoln continued to impose martial law selectively in areas under Union control. His response to Taney came only weeks later, in his July 4 address to Congress. Must a “government of
the people, by the same people,” Lincoln asked, be “too weak to maintain its own existence” against a discontented minority determined to break it up? Were “all the laws, but one”—habeas corpus—“to go unexecuted, and the government itself go to pieces, lest that one be violated? ” In what Lincoln called a “People’s contest,” the president’s duty to the people was to preserve the Union. It was a doctrine of necessity.
But Roger Taney did not believe in that necessity because he did not believe the Union was worth saving. It was a voluntary compact of the states and, with irreconcilable differences acknowledged, the South should have been allowed to secede peacefully. The war was, in Taney’s mind, unnecessary, and a constitutional disaster. But, aside from making futile gestures, what could he do about it? He led a court that many in the North regarded as a nest of traitors.
BY THE BEGINNING of the Civil War, that nest had been much depleted. Virginian Peter Daniel, the most aggressive of the pro-slavery justices, had died in May 1860. For almost a year, Buchanan had dithered, finally nominating a successor only a few weeks before his term ended. He chose his attorney general, who had advised him that the president had no constitutional power to resist secession. After the Senate swiftly rejected the nomination, the seat remained vacant. In early April 1861, Justice McLean died. That same month, John Campbell left the court. Appointed by Franklin Pierce in 1853, the Alabaman had opposed secession but, appalled by Lincoln’s violent response and convinced that, as a Southern sympathizer, he would bring the court into discredit, he resigned, eventually to become a Confederate assistant secretary of war. No other Southerner followed him. John Catron, the slave owner from Tennessee, was a devoted Unionist who saw support for the rebellion as treason. James Wayne, the pro-slavery extremist from Georgia, nevertheless backed Lincoln’s expansive war powers.
With three of nine chairs empty, Taney’s Supreme Court was nearly a rump, barely a quorum. Lincoln did not make his first appointment until January 1862, over a year and a half after Daniel’s death. The delay was excused by the effort to reorganize the federal circuits. Five of nine in the old system were based in the South, and Republicans were determined to shift that balance northward. But neither were they in a hurry to restore the Supreme Court to full manpower, with the author of Dred Scott and now Merryman still in control. The empty seats were a mark of Republican disdain.
Lincoln’s reorganization plan in fact included a subtle way to reshape the court. Among his proposals was the suggestion that Supreme Court justices be relieved from circuit duty. That would loosen the bonds between geography and Supreme Court seats that for so long had guaranteed the South a majority on the court. Outlined in his first State of the Union message to Congress, Lincoln’s proposals triggered a round of court-bashing that echoed 1857—except that, now, enraged Republicans had the legislative power.
Leading the radical charge was New Hampshire senator John P. Hale, with a shocking proposal to abolish Taney’s Supreme Court altogether and create a new one. The Constitution provided for “one Supreme Court,” but, Hale argued, that did not mean it had to be this one, which was nothing more than “part of the machinery of the old Democratic party,” its justices mere politicians in robes. Now that Republicans were in power, they were entitled to a Supreme Court of their own. While that was a widespread sentiment among Republicans, Hale’s path to a Republican court was dismissed as anarchic. Was every change in political control of Congress to bring a new Supreme Court? But neither did Republicans frontally attack what Dred Scott had so disastrously shown was the real source of the court’s power: judicial review. Even Lincoln, while deriding the reverence for the court’s rulings demanded by Taney’s defenders, acknowledged that Supreme Court decisions, when “fully settled” and accepted by the people, might control “the general policy of the country.”
Republicans did not want to destroy judicial power; they wanted that weapon in their own hands. A more moderate proposal than Hale’s was to pack the court under cover of circuit reorganization, by expanding its membership from nine to as many as thirteen, which, with three pending vacancies, would give Lincoln seven appointments and an instant majority. But more patient Republicans pointed out that the remnant of the Taney Court had an average age of above seventy; the chief justice himself was in his eighties. Republican control would simply be the short work of time. Meanwhile, there were those three open seats.
Early in his presidency, Lincoln had been besieged by office seekers. Hundreds of would-be clerks, postmasters, and custom officers jammed the halls of the White House. As his secretary, John Hay, described it, the president had “literally to run the gantlet through the crowds” wanting a word with him. It was only a little less disorderly with aspirant Supreme Court justices. The long delay before Lincoln made his first appointment enabled rumors to gather steam, ambitions to swell, and campaigns to be mounted. The reorganization of circuit courts was not completed until July 1862, but Lincoln was obliged to act before that. With illness often keeping Taney and Catron off the bench, the court frequently lacked the quorum of five it needed legally to convene.
Ohio lawyer Noah Swayne was ready for the moment. He had launched a campaign for McLean’s seat shortly after the justice died in April 1861, mobilizing Ohio’s entire Republican establishment to help Swayne beat off rivals. There was much to recommend him in Lincoln’s eyes. A native Virginian and Quaker, he had left the state out of disgust with slavery and set up successfully as a corporate lawyer in Ohio. After playing a prominent role in several fugitive slave cases, he embraced the Republican party on its founding and campaigned for Lincoln in 1860. He was a stalwart of the Republican ascendancy—impeccably loyal to the party and its president, who named him to McLean’s seat in January 1862.
Lincoln’s second appointment, which he made the day after he signed the circuit reorganization bill, followed a similar pattern. A country doctor who became an ardent emancipationist, Samuel Miller had left his native state of Kentucky when it retained slavery in its 1849 constitution and moved to the free state of Iowa, where he became an early Republican and practiced law. He had less claim to being a “Lincoln man” than Swayne—Lincoln in fact confused him with Daniel Miller, a former Iowa congressman, as did the first news reports of his nomination—but Samuel Miller’s obscurity was more than offset by recommendations from everyone who mattered in Iowa, as well as a raft of petitions from “Iowa state citizens.”
That left one open seat. The three leading contenders were all true Lincoln men—all Illinoisans, all friends and associates of the president for decades. But none had been closer or more important to Lincoln than Judge David Davis of the Illinois Circuit Court. He had managed Lincoln’s nomination at the 1860 convention and then the winning presidential campaign. Other Lincoln friends were miffed that the president had passed over Davis with his first two nominations and wondered if the president was an ingrate. They pushed him even harder now. Yet Lincoln seemed unwilling to nominate Davis, perhaps because he was too close to him. Months passed after the Miller nomination, and it was only in October 1862 that Lincoln appointed Davis to the court.
THERE WAS NOT YET a Lincoln Court—it was still Roger Taney’s—but even as Davis took his seat, a case was reaching the Supreme Court that would prove the difference that even a partial packing could make. The “Prize Cases” were an amalgam of a dozen suits brought by shipowners who claimed that the Union’s seizure of their property under Lincoln’s blockade proclamations of April 1861 was unconstitutional. By early 1862, the cases had worked their way through the federal courts to the Supreme Court, and the shipowners, anticipating that the court’s three open seats would soon be filled with Lincoln supporters, pressed for an early hearing. For the same reason, the administration sought, and won, a delay.
Taney’s attitude toward Lincoln was only too well known. Of the five other sitting justices, four had backed Taney in Dred Scott. Two were Northern Democrats—Robert Grier, who, though a loyal Unionist, had criticized
Lincoln’s war policies, and Samuel Nelson, who had agreed with Taney that the Union was beyond saving and that the war was “without any useful purpose.” The fifth justice, Nathan Clifford, had not been on the court when Dred Scott was decided. A New Hampshire native, he had made his legal career in Maine, where he also became a leading figure in the state’s Democratic party. Buchanan appointed him in 1858 to replace Benjamin Curtis, who resigned from the court after his great dissent in the case led to a bitter clash with Taney. But Clifford was no Curtis—he was pleased to say that Taney’s Dred Scott opinion “fully expressed” his own pro-Southern views. To win the “Prize Cases,” the administration, if it could count on the Lincoln three, would need to peel away at least two of the Taney six.
The stakes could scarcely have been higher. Had Lincoln acted constitutionally when he ordered a blockade of Southern ports before Congress declared war on the Confederacy? The shipowners argued that only Congress could declare a state of war and authorize the president to act. Of Lincoln’s doctrine of “necessity” that justified his emergency action, their lawyer said, “The Constitution knows no such word.”
After twelve days of argument, the justices retired for deliberations, as tension mounted throughout the country. Would Taney deliver a great victory to the South—greater perhaps than any it had won on the battlefield—by exposing Lincoln as a usurper and throwing into question the legitimacy of the war? Three weeks later, the justices returned to the bench to deliver the court’s opinion—all except Taney, who was said to be indisposed. That itself was a strong signal; surely the chief justice would not have denied himself the satisfaction of reading out an anti-administration decision. And in fact, the court went against Taney, but by the narrowest margin, 5-4, with Grier and James Wayne joining the Lincoln three.
Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court Page 7