Supreme Court Removed as a Factor

In all his Supreme Court appointments Lincoln was cautious to appoint men to the Court who were fully sympathetic with the measures his administration devised to win the war, and who gave no indication that they would oppose the policies, often clearly unconstitutional, which Lincoln considered necessary.

“The [Lincoln] administration would await no debacle, no breath-taking defeat at the hands of the Supreme Court. It could ill-afford such a calamity. It would move to make such a defeat less likely [and] it would be folly to permit Supreme Court decisions to add to the travail.

President Lincoln and the Republicans were now to decide, concerning the size of the Supreme Court, that the number “ten” was much more convenient than the number “nine.” Under the leadership of Representative James F. Wilson the committee on the judiciary reported to the house a bill to create a tenth circuit . . . [meaning] a tenth Justice. It was prudence that dictated a packed Court in order to strengthen the position of those Justices who would view with favor the acts that the administration deemed necessary.

Admittedly this was a moderate packing of the Court, but the tenth Justice in addition to the three other Lincoln appointees and other friendly Justices on the bench would provide an adequate margin of safety. So it was in the same days that the Prize Cases were being considered by the Court that Congress went about the task of creating . . . a tenth Justice. The Court could not fail to see the implications.

To pack it just at this time was a sharp warning that its size, its powers, and its role rested upon the will of the Congress and the President.  There was no delay [in the appointment]. The Senate, deeming that swift action was necessary, passed the bill the same day that it took up consideration of it.

Keep[ing] the power of the Court “right.” That was the strongest motivation for adding a tenth justice . . . during the Civil War. Senator Garrett Davis of Kentucky stated on the floor of the Senate on January 14, 1868, that the Radicals forced the creation of the tenth justiceship.

The power of the government to defend itself would be questioned again before the Supreme Court, and a tenth Justice would at least make certain “that questions of the power of  government to suppress rebellion would not come before a Court too hopelessly weighted on the side of the old-line Democratic view of public policy.”  The Supreme Court had to be removed as a factor potentially dangerous to the Union.  A Congress and a President that had experience the debacles of 1862 would not stand idly by to experience disaster at the hands of the Supreme Court.”

(Lincoln’s Supreme Court, David M. Silver, University of Illinois Press, 1998, pp. 84-88)

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