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The Dawn of a Republican Court: Lincoln's Justices

By R. Owen Williams

April 1, 2011, 9:32 am CDT

The Civil War marks a turning point in U.S. Supreme Court history. During that time, the bench became far more assertive, both judicially and politically.

In just two years, between 1862 and 1864, President Abraham Lincoln appointed five new justices—Noah Swayne, Samuel Miller, David Davis, Stephen Field and Salmon Chase. That began a string of 14 consecutive Republican appointments, turning a Democratic bench into a Republican majority that lasted the rest of the 19th century. Of Lincoln’s justices, Swayne was the most forgettable, Miller the biggest personality (regularly telling jokes and singing in chambers), Davis the most disappointing (leaving to serve in the U.S. Senate as part of the Compromise of 1877), Field the most effective and intelligent, and Chase the most politically forceful.

While in Washington and not riding circuit, most of the justices lived in a boarding house at No. 23 Four-and-a-Half St. and met from Monday through Friday and again on Saturdays, when they decided existing cases and whether to accept pending cases. America’s rapid territorial and economic expansion significantly increased the court’s load to more than 350 cases, which—except for the maritime and habeas corpus suits—lacked drama; it tended to be quite commercial, focusing on land grants, railroad receiverships, banking matters, state taxes and government bonds.

Throughout their service, Swayne and Chase barely budged from their commitment to blacks; Miller stayed true to small farmers and budding entrepreneurs; Davis held the line for individual liberties against executive privilege; and Field became the pre-eminent advocate for laissez-faire economics.

It was well into the 1870s before the court had the opportunity to protect the citizenship of 4 million ex-slaves; yet in decision after decision, the justices did little to assist freedmen. Instead, they seemed determined, for conservative political or very narrow legal reasons, to maintain states’ rights and existing legal procedures against the changes implicit in the most significant outcomes of the Civil War: the 13th, 14th and 15th amendments.

ACTIVIST JUDGES

Lincoln’s justices wrote decisions intended to advance the party’s ambitions, and their own as well. In fact, they may have been the most politically active group to ever serve on the court. They schemed with congressmen, manipulated the press and ran for office. Indeed, four of Lincoln’s appointees ran for U.S. president from the bench, though none as a Republican.

Chief Justice Chase was the first of Lincoln’s appointees to run for president from the bench and the first to leave the court; he died in 1873. Miller and Field, on the other hand, had several opportunities to dabble in presidential politics. Considered two of the finest justices to ever serve, Miller remained until his death in 1890 and Field until 1897, making him the second-longest-sitting justice in history (after only William O. Douglas).

Although Lincoln’s justices remained true to the president and his party throughout the war, thereafter they exercised a level of judicial review never before seen from the Supreme Court. In the years between 1865 and 1873 alone, the high court overturned 46 acts of state legislation and, more relevantly, 10 acts of federal legislation—quite aggressive when compared to the 30 state and two federal judicial overrides handed down during the entire antebellum period.

Indeed, the court’s current constitutional authority may be viewed as having taken shape during and just after the Civil War.

R. Owen Williams, a Lincoln scholar, is president of Transylvania University in Lexington, Ky.