We The People

The 19th-Century History of Court Packing

September 24, 2020

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Following the passing of Justice Ruth Bader Ginsburg, Republicans have promised to nominate a new Supreme Court justice swiftly, before the imminent presidential election. If the Republican-led Senate confirms a new nominee either before or closely after the November election, some Democrats have said they will respond by attempting to “pack”—add justices to—the Supreme Court. This week’s episode looks to history, particularly to the 19th century and the Civil War era, to see what lessons from historic battles over the composition of the Court might teach us today. Host Jeffrey Rosen is joined by two renowned constitutional historians—Tim Huebner of Rhodes College and Mark Graber of the University of Maryland Carey Law School.

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PARTICIPANTS

Mark Graber is the University System of Maryland Regents Professor at the Francis King Carey School of Law. He's the author of numerous publications and books, including: Constitutional Democracy in Crisis? co-written with Sanford Levinson and Mark Tushnet.

Tim Huebner is the Irma O. Sternberg Professor of History at Rhodes College in Memphis. His scholarship focuses on American history including the pro-slavery ideology of 19th-century southern jurists and he’s the author of Liberty and Union, The Civil War Era and American Constitutionalism.

Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.

ADDITIONAL RESOURCES

This episode was engineered by David Stotz and Greg Scheckler and produced by Jackie McDermott. Research was provided by Alexandra "Mac" Taylor, Ashley Kemper, and Lana Ulrich.

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TRANSCRIPT

This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.

Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, president and CEO of the National Constitution Center. And welcome to We The People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the constitution among the American people. Following the passing of Justice Ginsburg, Republicans have promised to nominate a new Supreme Court justice before the November election. Some Democrats say that if the GOP does so they will respond by attempting to add seats to the Supreme Court. On this week's episode, dear We The People listeners let's learn from history, particularly 19th century history to see what light it can cast about past battles over the composition of the Supreme Court. I'm joined by two great constitutional historians of the 19th century and beyond.

Mark Graber is the university system of Maryland regions professor at the Francis King Carey School Of Law. He's the author of many books and publications, including Constitutional Democracy in Crisis co-written with Sanford Levinson and Mark Tushnet. Mark, it is wonderful to welcome you to We The People.

Mark Graber: [00:01:18] Thank you for having me.

Rosen: [00:01:20] And Timothy Huebner is Irma AU Sternberg professor of history of Rhodes College in Memphis. He focuses on constitutional history and is the author of Liberty and Union, The Civil War Era and American Constitutionalism. Tim, it is wonderful to have you on the show.

Timothy Huebner: [00:01:37] Thank you, Jeff. I'm happy to be here.

Rosen: [00:01:39] Now. The constitution does not fix the number of Supreme Court justices. Article three, section one gives a broad direction to Congress to establish, uh, the judicial system of the United States and to vest it in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. The judiciary act of 1789 established the first Supreme Court with six justices and then in 1801, President John Adams and the lame duck, Federalist Congress passed the judiciary Act of 1801, which reduced the court to five justices in an attempt to limit, uh, the incoming president, Thomas Jefferson's appointments.

Jefferson and the democratic Republican soon repealed that Act putting the court back to six justices. And then in 1807, Jefferson and Congress added a seventh justice when Congress added a seventh federal judicial circuit, that was a quotation from Scott Bomboy, our great web editors packing the court, uh, explained from 2019. Mark, you are a great historian of this period and these court packing efforts at the very beginning of our republic. Tell us more about the battles over the size of the Supreme Court. Beginning with the passage of the judiciary Act in 1789 and culminating in this edition of a seventh, uh, justice in 1807.

Graber: [00:02:58] Well, there were two battles. The first battle is the partisan battle where, familiar with federalist wanted Jeffersonians to have fewer judicial appointments, particularly as it became clear... as it was not clear in 1789 that judicial appointments would in some sense, follow the party's constitutional vision. But as that becomes clear, Federalists want Jeffersonians to have fewer judicial appointments while Jeffersonians want more judicial appointments. But another issue arises, which is crucial to the first third of the 19th century. Namely you need federal courts, not for political reasons of the hot issues of the day, but simply there were a lot of land crises. There were a lot of issues we need federal courts for, and as we admit new states, we need to expand the federal court system.

And the general understanding was for each district you wanted a Supreme Court judge, indeed Supreme Court judges were also circuit judges in the district. So as the United States expanded westward, we begun to add new districts. And as you added new districts, you had to add new district judges and eventually a Supreme Court justice. So one part was partisan another was administrative. And the administrative parts in the 19th century were just as important as the partisan parts.

Rosen: [00:04:48] So Tim, Mark just said that the arrangement of federal judicial district in the time is intertwined with the politics over the Supreme Court. What like can you cast about how they were intertwined particularly about this fierce battle right in 1801 when, when, when Adams and the lame duck Federalists are trying to reduce the court to five justices in an attempt to limit Jefferson's appointments.

Huebner: [00:05:12] Sure. So the Supreme Court from his earliest history is tied to the federal circuits as we have already said. And so when Washington puts the first six members of the Supreme Court onto the court, all of them also serve as federal circuit court judges. So six judges, three circuits, two basically riding in each of the three circuits. By 1807, as Mark mentioned, as new states are added, there's a separate circuit which is added. So, uh, what that means is that, um, is that an extra, um, justice of the US Supreme Court, um, is added in 1807. And that process then is going to continue in 1837 with the judiciary act of 1837, when the size of the US Supreme Court is expanded once more from seven justices to nine, when two new circuits are added, um, in the West.

It's important to note that in the early 19th century, especially geography is the major factor in dictating who ends up on the Supreme Court in that each of these circuits is very closely tied to a Supreme Court seat. So when these two extra circuits are added in 1837, the two justices who are added on the Supreme Court, uh, basically have to ride in those circuits. And they are from those circuits, which are in the sort of, part of the US that was called at the time, the Old Southwest.

And so what happens is that, uh, as these two justices are added, they're from, uh, the States of Tennessee and Alabama. And so geography then once again, it's sort of tied to the circuits is the major influence on how justices are actually nominated. And then, um, to go back to your question about politics, politics is a significant part of all of this in that, as Mark mentioned in the early 1800 it's the Jeffersonians and the Federalists, and of course by the 1830s, it's the Democrats and the Wigs. But always the size of the Supreme Court and the number of federal circuits is a political issue, stretching all the way back into 1800 and 1,801.

Rosen: [00:07:49] Mark. When I began law school, I remember during the first weeks of constitutional law, I had this vigorous debate with my great teacher Akilah Mara friend of We The People, about whether Congress could change the size of the court. And I said, "This is outrageous. It's a violation of principles of the rule of law and neutrality and prospectivity." And Akilah explained the history to me and I learned it, it wasn't so. I think it will strike many of our listeners, perhaps this counter-intuitive, that the number fluctuated with regard to partisanship from the beginning, but were there any arguments when the Federalist tried to reduce the size of the court to deny Jefferson the ability to make appointments, that they couldn't do that, and it would threaten the legitimacy of the court? Or did, did everyone just accept that as within Congress's political power?

Graber: [00:08:34] I think everybody, accepted the idea that you could expand the size of the court when you did so for administrative reasons. So everybody accepted what I'll call the second part, which is we were gonna divide the country into judicial circuits and each circuit ought to have a Supreme Court justice who lived there. So that was uncontroversial. Nobody said, for example, no, when we admit the Southwest Alabama, Mississippi, we've got to shove it into the judicial circuit that includes Georgia. We can't create a new circuit, a new judge. Where people had the arguments that may resemble the arguments you were having in law school was whether you could change it for partisan reasons. Where your reasons weren't doing it for administration. Now, it just turns out we need another judge because the judge has to ride circuit, but we need another judge because we think this judge is a vote for the national pack. So there were arguments about why you could change the number, but there was general agreement you could change the number if your reasons for doing so were administrative and not partisan.

Rosen: [00:10:09] So interesting. Tim, do you have any other insights about what arguments people raise to say that you might not be able to change the size of the court for purely partisan reasons either around 1800 or around 1837, when, as you said, president Jackson was able to add two additional justices?

Huebner: [00:10:28] Sure. And so these are arguments, not only over the size of the Supreme Court, but over how many circus there ought to be and over whether circuit riding is this sort of thing that we want justices of the Supreme Court to actually do. So that practice had been present from the start, uh, going back to 1789, but it had never been popular. Justices hated the fact that they literally had to ride on horseback and actually, um, spend time on the circuit at a period when there are no roads, no railroads, it was very difficult to travel around. So circuit riding was very onerous, it was very difficult. Justices didn't like it.

And so, uh, building on Mark's point, uh, part of what happens in 1801 is that when Congress passes the judiciary Act of 1801, part of what it's doing is it's ending the process of circuit riding in order to add federal circuit court judges. So what this does is it adds a, a, a sort of a separate layer of federal judges and in the process establishes 50 some odd new federal, um, judgeships, right as President Adams is about to leave office. So these are the individuals known as the famous midnight judges. So this is very, very controversial in that these are all, uh, individuals who will be named by President Adams. So it shouldn't be so surprising to us that in 1802, uh, Jeffersonian Congress, um, basically is able to repeal that Act of 1801 and to put back onto the justices of the Supreme Court, the duty of having to ride circuit.

So all of those Federalists appointed judges sort of disappear at that point. And that task then has to go back to the Supreme Court. So, uh, many of these arguments in the early 19th century are not so much focused on the size of the Supreme Court as focused on the number of federal judges that are part of the entire federal system.

Rosen: [00:12:48] Mark, can you tell us more about the midnight judges experiment law students know from Marbury versus Madison that President Adams is staying up until the last hours of his administration signing judicial commissions, which he then gives to his secretary of state John Marshall to deliver. And, and Marshall forgets famously to deliver one to Marbury. Um, the obvious question does that establish the presidents can appoint judges until the last moments of their, uh, administration? Then tell us more broadly how the politics of party competition in this era were reflected in competing understandings of constitutional authority, uh, and reflected in these court packing battles.

Graber: [00:13:27] Okay. The interesting feature of early American constitutional politics that the judiciary Act of 1801 highlights is Congress... the early congresses had two sessions. The second session began in December after the election. So it would turn out that half of what a congress did happened after the election. Well, in November, 1800, it becomes clear, guess what? The Federalists have gotten shellacked. And what happens in December, uh, the 1800, the Federalists who still have majorities in both houses of Congress in control of the presidency, have three months to do their best or do their worst, depending on your perspective.

And one of the things they do is they dramatically expand the federal judiciary as Professor Huebner has highlighted, and in particular, they create 13 new circuit court justiceships and Adams appoints them. And it's interesting that whether the Supreme Court could declare a law unconstitutional. Everybody thought the law that Marshall might declare unconstitutional was the judiciary Act of 1802, which repealed the judiciary Act of 1801, not Marbury versus Madison, which dealt with this very unimportant position. But first thing this established was a president and a congress get to nominate appoint and confirm justices until they are constitutionally no longer in office.

So Donald Trump is here to speak contemporary... simply factually. Everybody agrees that if Donald Trump appoints, Congress confirms and Donald Trump commissions a Supreme Court justice five minutes before his term of office ends, that person is a Supreme Court justice. The question which is debated is whether in fact Congress can do anything about it, but Congress has to do something about it. So if Congress were to do nothing in 1801, everybody agrees, those justices were legal. The question is whether Congress can say, as Congress said in 1802... They didn't say, by the way, it's a partisan judge. They said, you know, the federal judiciary is costing lots of money. And we all agree.

You know, there are budget deficits, then there are budget deficits. Now we could save some money by getting rid of the offices. So there's an agreement that you can't get rid of a judge, but 1802 suggest maybe you can get rid of the office. Now here's what we don't know. The Marshall court would not touch that at all. The constitutionality of the judiciary Act of 1802 has never been tested. So we don't know what the law would be if a congress decided to get rid of offices, but not the judge. And then a judge say... stood and said, "I want my salary. And by the way, my vote counts." We do know by the way, Congress refused to pay the salaries of the midnight judges.

Rosen: [00:17:41] Wow. Tim, I, I have to ask the obvious followup. How, how would it work hypothetically today? Uh, Congress could eliminate an unfill- filled, uh, Supreme Court seat or lower court seat, um, or could it eliminate the position of an actual judge, that judge would retain article three tenure, but wouldn't be able to occupy the seat? And then what would the arguments for and against the constitutionality of doing that be?

Huebner: [00:18:09] Well, it is true that seats have been eliminated, but that process in the 19th century mostly happens through acts that do so by attrition. And the best example of that comes during, or immediately after the US civil war in 1866. But, uh, you know, to, to sort of bring this back to the politics and the sort of party basis for all of these controversies, one of the interesting things that happens, uh, by the 1830s, earlier we were talking about that Act 1807. Um, by the 1830s, what we're starting to see is sort of one party, uh, dominance, um, when it comes to national politics. If we look at the presidents who win, the 1830s, 1840s and 1850s, they're almost all Democrats. And you have a solidly democratic court. Uh, many of those justices who are appointed by Andrew Jackson and his, uh, successors in the 1840s and 1850s are from the South.

And so it's a Southern and Democratic court that starts to take shape in the aftermath of the expansion of the court in 1837. And I would argue it's that solidly Democratic pro-slavery Southern sort of influence on the US Supreme Court from the 1830s to the 1850s, that leads to the most, um, controversial ruling in the history of the Supreme Court. And that is of course in 1857, Dred Scott versus Sanford.

Rosen: [00:19:52] Um, Mark you've written a really important book about the Dred Scott decision. Tell us how the politics of slavery leading up to the Dred Scott decision and including the Dred Scott decision shaped the composition and reputation of the court from the 1830s to the time of Lincoln's election in 1860.

Graber: [00:20:11] Okay. The book by the way is on sale in the lobby. But to follow on what Tim said, remember the circuits are located geographically. And the understanding is that a justice should reside in the district. Well, one of the things Jacksonians did is even though population was moving northwards and northwestwards in 1837, five of the districts are located entirely within slave states. Only four are located in free States. So the first thing that means is that all times the Supreme Court before the civil war, has a five to four judicial majority. Second point that Tim also raised is most of the appointing justices, uh, most of the appointing presidents are Democrats and it turns out Northern Democrats are far more accommodating of slavery than Northern Wigs.

So it turns out by the time of Dred Scott four... there are four Northern justices. Two are Democrats, two are Wigs. So what's the vote in Dred Scott? It's seven to two. It's the five Southern justices and the two Democrats against the two Wigs. So this is why, you know, Democrats of course say, "See, nonpartisan judiciary." Northern Republican said, "What do you mean? It's the slaveholders and their Democratic allies.

Rosen: [00:22:06] It's fascinating. And I'll call out the book for our listeners. It is Dred Scott and the Problem of Constitutional Evil. And Mark Graber's powerful book notes and argues that Dred Scott was actually constitutionally plausible in its day. Check it out and learn. Uh, Timothy Huebner, uh, you also have written about the way that the politics of slavery influenced the composition and reputation of the court from the 1830s leading up to Dred Scott. So take us through the same period and then introduce us to the battles over the size of the court that began during the civil war.

Huebner: [00:22:46] Sure. So the major issue in national politics in the aftermath of the war with Mexico, which ends in 1848 is the question of the extension of slavery into the West. So starting in the late 1840s then, and into the 1850s, uh, Northerners, Southerners, Democrats, Wigs are all weighing in on that issue of whether and how slavery is able to, or shouldn't be able to extend into the West. And what happens by the middle of the 1850s as a new political party, the Republican Party forms, and that party takes an explicitly anti-extension of slavery stance. They are a free soil party.

Um, they nominate their first candidate for president in 1856, that's John C. Frémont. Um, he loses to James Buchanan, but their second nominee is Abraham Lincoln. And let me talk a little bit about Lincoln, and why he so significant here in the context of Dred Scott. It is not exaggerating, um, to say that Abraham Lincoln makes his political reputation nationally for his opposition to the Supreme Court's ruling in Dred Scott. So in 1857, in that case, Chief Justice Roger B. Taney who had been appointed by Andrew Jackson back in the 1830s and is still on the court by 1857, um, Chief Justice Roger Taney rules very significantly that slave holders have a right to take their property, their enslaved people or property as Chief Justice Taney saw them into federal territory.

So in other words, the Supreme Court, in that case tries to resolve the major political issue that had been around, as I said, since the war with Mexico. So this had been an issue in national politics for 10 years, Taney and his fellow justices are trying to resolve it. And they do so in favor of slaveholders and what they understood as the property rights of slaveholders. So Lincoln of course, in 1858, when he's running for the US Senate in the State of Illinois, he's, uh, you know, basically debating Stephen Douglas all over the state in 1858.

What they're really arguing over is the Supreme Court's ruling in Dred Scott. And Lincoln is in a difficult, uh, position because his whole party platform has been deemed unconstitutional by Chief Justice Taney's ruling. Um, but that energizes his own sort of, uh, political base. And, um, it, it turns Lincoln into a national figure in that he's the leading opponent of the Supreme Court's ruling in Dred Scott versus Sanford

Rosen: [00:25:43] Mark. I wanted to know... connect the battles over the constitutional status of slavery and Dred Scott to the battles over the size of the Supreme Court. So in 1837, as we said, President Jackson added two additional justices, uh, and expanded the number of federal circuit court districts. And then the next expansion is in 1863, when Congress creates the 10th circuit during the civil war and the court briefly has 10 justices. Why did Congress create that additional circuit in 1863? And how did that relate to the battle over slavery?

Graber: [00:26:18] Well, Congress had two reasons. Reason. Number one, again, was nonpartisan. The 10th circuit was California. California was growing by leaps and bounds, it made no sense to have a justice riding circuit... let's say your circuit was Arkansas, Louisiana, Texas, California. Given the policies, you needed a circuit in California. And when you had the circuit, you had a judge.

But if I may go back a year, the really crucial event is the judiciary Act of 1862, which is the most important least studied judicial Act in American history. Because what the judiciary Act of 1862 does is remember we have five slave circuits in slave states, four in free states, that Act entirely redoes the judicial circuits. So now we have seven judicial circuits entirely within free states, two judicial circuits only in the slave states.

And moreover, while Lincoln does appoint a Californian, Steven Field to the Supreme Court when they get the extra justice, Lincoln breaks with the practice of appointing justices to circuits, where they live and begins the late 19th century practice, which is largely maximize the number of New Yorkers on the Supreme Court. And one, one can see, by the way, just the effect if you now have a Northern dominated judiciary, you're going to get very different kinds of rulings.

Rosen: [00:28:21] Well, Tim, this brings us squarely to the period of your extremely helpful article, the First Court-packing Plan. Listeners can find it on SCOTUSblog. And you argue that between 1862 and 1869, Congress rearranged the federal circuits to curb Southern influence add an, a 10th justice to uphold Union war policies and reduce the size of the court to fort an antagonistic president. So, so take us, uh, uh... tell us the story of this crucial battle and, uh, what its consequences were.

Huebner: [00:28:54] Sure. And it starts with the fact that Lincoln is presented with a very unusual opportunity when he's sworn in as president. And I should note incidentally he's sworn in by none other than Chief Justice Roger B. Taney. And if there's a more interesting moment in the history, um, uh, of the US, I'm not sure what it is. I mean, imagine what it must've been like standing up there on that platform in March of 1861, when the aging Chief Justice Taney has to swear in Abraham Lincoln, this Prairie lawyer, who's made his entire national reputation of vilifying Taney's major ruling that had just been handed down, uh, three years before.

So when Lincoln is sworn in, um, there's already one vacancy on the, the Supreme Court that, uh, had not been filled, that was after the death of Justice Peter V. Daniel in 1860. So that opening was there. Immediately after Lincoln is sworn in about a month later, another justice John McLean dies. Um, and then about a month or so after that, a third justice John Archibald Campbell, who is from the state of Alabama, goes back to his home state, ends up serving as the assistant secretary of War for the Confederacy. So what you have this, then is by the, the, uh, spring and summer of 1861, you suddenly have three openings on the Supreme Court.

Um, Lincoln hesitates to fill those openings immediately because as Mark has said in 1862, there's an effort to re-organize the circuits. And Lincoln is very much tied in with that process, wanting to wait till that process has been seen through till he names, uh, specific individuals for those openings. Um, he ends up of course, doing that in 1862. Uh, but then as you mentioned in 1863, a 10th, um, circuit is added, which means a tenth justice is added, that is S- Steven Field who was of course a native of, uh, California.

Um, California and, and the sort of law of the West was unique because there were a lot of land issues that were very thorny. And it was absolutely necessary that somebody from that state, um, serve, um, in that seat. So that as, uh, as Mark has said, is both necessary from a legal standpoint, to have somebody who can serve that circuit. But, uh, somebody had been serving that circuit, uh, uh, prior to that time and they hadn't actually chosen to add the seat onto the Supreme Court until 1863. So there's a, there's a, there's a sort of, sort of, uh, partisan aspect here also.

Interestingly though, Field is one of the only nominees that we see in the 19th century, who comes from a different, uh, political party than the president who actually puts him there. Field is a Democrat, but in the context of the civil war in 1862 and 1863, uh, Lincoln is very much interested in trying to promote national unity, obviously he's trying to win the civil war. And having a War Democrat such as Field, somebody who was very supportive of the Federal Union, uh, was a sort of political plus, uh, for Lincoln. So all that adds up to then the sort of reorganization of the circuits in 1862, adding a 10th circuit and a 10th, uh, justice in 1863. And then maybe next, we'll talk about what happens after the war in 1866. And, and we've sort of mentioned it already, but from 1866 to 1869, also there's an effort to sort of change the size of the Supreme Court also. So maybe we'll, uh, have an opportunity to sort of talk about that too.

Rosen: [00:32:58] Yes. Thank you for setting that up so well, and let's talk precisely about that. Mark, as Tim says, and as he notes in his piece, in 1866, Congress enacted legislation to reduce the size of the court to seven preventing President Andrew Johnson from nominating any justices, uh, because he opposed congressional reconstruction and Congress wanted to push it through. Uh, this law was championed, Tim says in his piece, by Chief Justice Salmon Chase, who was looking for, uh, salary increase for the justices. And then in 1869, when President Johnson left the presidency, Congress returned to court to nine justices where it hasn't been altered since. So this is obviously a crucial battle. Mark, tell us about this reduction of the size of the court in 1866 and the restoration in 1869.

Graber: [00:33:47] Well, to a fair degree, you've summarized it, they cut them down to seven to prevent Johnson from making appointments. And once Grant was elected president, Republican said, "Whoops, our mistake, you really need nine justices." That, yeah, there's a little bit of, maybe the justices can get paid a little more if there's only seven. But unlike the events of the 1820s and 1830s where the... while there's partisanship going on, there's a lot more going on. This is as close to partisan as the 19th century got.

The only real issue historians debate is not whether you wanted Grant to make more appointed, but specifically did Congress and Grant want those appointments to reverse the decision in the legal tender case. The legal tender case held that. In fact, um, basically the dollar bill was unconstitutional. Or at least the government could not require you to take a dollar bill in fulfillment of a contract. Congress had authorized the printing of paper money during the civil war and everybody, even those who had their doubts about it said, "We're not gonna fight this." But after the civil war Democrats in particular were Democrats, like Field.

And for that matter, like Chase said, this is unconstitutional and by a five to three vote they declared legal tender unconstitutional with one justice, Grier being sufficiently senile. There's actually a debate as to whether Grier actually understood what he was doing. Grier left the court, leaving a four to three majority. And the real issue and historians debate this is whether you simply wanted Grant to make two more appointments, or whether you understood those two appointments were going to reverse the result in the legal tender cases.

Rosen: [00:36:17] Wow. Well, Tim, we're now at the core of the partisan debate over the size of the court. So tell us more fully amplifying on what Mark said about what happened between 1866 when Congress reduced the court size to seven and 1869 when it returned to nine.

Huebner: [00:36:37] Sure. And, uh, let me just go back and to reiterate a point that I was making earlier that none of this period and what's happening to the court and on the court at this time can be understood without first understanding, um, Dred Scott, uh, because it, it casts a very long shadow over the Supreme Court in this whole period. Um, in 1856, prior to that ruling, the court's reputation was outstanding. And in fact, um, many people wanted the Supreme Court to resolve the question of the extension of slavery, um, into the West. But after the Supreme Court's ruling in 1857, the court's national reputation falls, uh, precipitously, especially in the North, obviously.

And so it sort of sets in motion, everything that we've been, uh, you know, focusing on. It's the reorganization of the circuits, uh, the adding of an extra justice and then also finally in 1864, we haven't, we haven't actually mentioned this yet, um, Chief Justice Roger Taney dies in October of 1864. Um, and immediately, Charles Sumner, famous anti-slavery Senator, uh, dashes a note off, sends it over to the white house. Um, that note on the very day of Taney's death is something like providence has given us a victory in the death of Chief Justice Taney. It's a victory for liberty in the US constitution.

So he writes those words, um, to Lincoln, just a few weeks before, um, election day, 1864. At that point in October, 1864, because of the success in the civil war, uh, um, it's a very clear... Sherman is marching through Georgia uh, and at that moment, it's clear that Lincoln is gonna win, uh, reelection. Um, he fills, um, that seat, as we mentioned with, uh, Salmon P. Chase who had made his reputation as an anti-slavery lawyer, going back to the 1840s. And so by 1864, uh, Lincoln has had an opportunity to name five justices to the Supreme Court. He's filled all of those three openings that we talked about earlier in 1862, he's added Field in 1863, and now Chase has taken Taney's place in 1864. So five justices.

And then of course we get to 1866. So by 1866, of course, Lincoln has been, uh, tragically, assassinated, Andrew Johnson is president by 1866. And so that effort by Abraham Lincoln to save the Union and to end slavery and effort that had been, uh, represented by the individuals he'd put on the Supreme Court, all of that effort seemed to hang in the balance now with Johnson in office, because Johnson's, uh, reconstruction policy is very lenient, um, toward the South. He, by 1866 has, uh, gained a lot of em- uh, a lot of enemies in Congress, which is of course dominated by members of the Republican Party. And so it's sort of Johnson's, uh, opposition to reconstruction that is the political aspect of this 1866 Act that is going to reduce the size of the court as we said, by, uh, tuition from 10 down to seven.

So when a justice actually dies, this is John Caitrin in 1866, Johnson tries to fill the seat, but with his, uh, attorney general, a fellow by the name of Henry Stanbery, uh, the Senate doesn't act on the nomination and at the same time passes this 1866 Act, uh, to reduce the size of the court down to seven. When a second justice then dies... so understand, so the size of the court had been at 10, uh, Caitrin dies, it's at nine. When another justice, James Wayne dies, now the court is down to eight, and then it's at that moment that as Mark said, the Act of 1869 is passed, uh, Grant is now president and then of course that makes it possible for grant to, uh, nominate somebody to fill that seat after justice Wayne's death. And so at that moment then in 1869, the, the size of the court is once again at nine. Um, and that's where it's been ever since.

Rosen: [00:41:21] Wow. Okay. Now we understand. Thank you for helping me and our listeners understand that the reductions in the size of the court for partisan reasons took place through attrition. And the addition of the seat in 1863 was connected to the addition of the new circuit. Mark, what for you is the lesson of the battle over the size of the court between 1863 and 1869 during the civil war? And once again, did anyone argue that Congress did not have the authority to either add to or subtract from the size of the court for partisan reasons, or did everyone accept its constitutional authority to do so?

Graber: [00:42:04] The main lesson in my professional capacity, maybe... now what coalitions want of the court changes and can often change rapidly. So why are people like Steven Field on the court? And by the way, why is Andrew Johnson vice president? And the answer is the Republican Party in 1864 is united on the measures that are being used to fight the civil war. Legal tender is constitutional, suspension of Habeas Corpus is constitutional. The blockade is constitutional. The emancipation proclamation is constitutional. What's gonna happen if the North wins? Who knows? They don't know. But they want a united front. And Andrew Johnson believes in all four of the legal tender not gonna fight Habeas, emancipation proclamation, blockade. If anything, Johnson is more on hanging on the traders 'cause frankly they were trying to kill him and he was in Tennessee state.

By 1866, Republican Party has a new set of goals and wants different things from the court. And some of those things, the Lincoln justices can't deliver 'cause there were a mixed lot, for every Salmon Chase who is an abolitionists, there's a Steven Field who's a flat out racist who simply doesn't believe in succession. So part of it is the mere fact that people want something of the court today doesn't tell you what they're going to want tomorrow, which makes futures very, very hard to predict.

Rosen: [00:44:02] Tim, the last word in this fascinating discussion is to you, what for you are the historical and constitutional lessons of the fluctuations in the size of the Supreme Court between 1863 and 1869?

Huebner: [00:44:18] Well, it's true that there's this really interesting period of change that we've been talking about here from 1860 to 1869, and the size of the court changes and all the things we've been talking about. Um, what's interesting though, is that that was only possible because one party is in power and dominate everything. I mean, we sometimes forget the fact that in 1861, when the South, uh, secedes from the Union, those Southerners all go home and they're no longer in the Congress. And so basically what you have is the Republican Party dominant in the 39th Congress starting in 1861. Um, they're able to pass a whole host of measures. We've mentioned, you know, some of them already.

And the Republicans stay in power until 1875. And so for this whole period, they dominate both houses of Congress. Johnson is the only outlier. He had run with, with Lincoln on a National Union ticket in 1864, understanding that Johnson was a Unionist from Tennessee. He'd, he had been the only Southern member of the Senate not to resign a seat and to go back home. Lincoln called him an indispensable man in Tennessee. So there was a good political reason in 1864, when Lincoln was running for reelection, that he would run with Johnson. But Johnson after Lincoln's death turns out to be what really he had always been, which is a state's rights Democrat. And that puts him at odds with Congress.

But again, one party in Congress is dominant in both the House and the Senate, and that same party occupies the White House for the vast majority of this period from 1861 to 1875. And so that party is able to have its way. Since we're in a very much, uh, divided country now where one party is not the dominant party when it comes to public opinion, in any sense if we go back to the last several presidential elections, it is hard for us to imagine that such far reaching changes like what happened during the civil war, when it comes to the size of the US Supreme Court, it is hard to imagine any such changes happening now because we're so divided, uh, politically and one party doesn't rule in the same way that it did in this era from 1861, 1875.

Rosen: [00:46:59] Thank you so much, Mark Graber and Timothy Huebner for, uh, extraordinarily illuminating, nuanced and important discussion about the history of 19th century court-packing. I know that our listeners, uh, learned as much as I do, and I'm very grateful to both of you for illuminating and educating all of us. Mark, Tim, thank you so much for joining.

Graber: [00:47:23] Thank you.

Huebner: [00:47:24] Thank you, Jeff.

Rosen: [00:47:25] Today's show was engineered by Greg Sheckler and produced by Jackie McDermott. Research was provided by Grace Zandi and Lana Orrick. And please rate, review and subscribe to We The People on Apple Podcasts and recommend the show to friends, colleagues, or anyone anywhere who is hungry for constitutional illumination and debate. And always remember that we're a private nonprofit and we rely on the generosity and passioned engagement of people from across the country who are inspired by our a nonpartisan mission of constitutional education and debate.

You can support the mission by becoming a member of the constitutioncenter.org/membership, or give a donation of any amount to support our work, including this podcast and including those live constitutional classes at theconstitutioncenter.org/donate. On behalf of the National Constitution Center, I'm Jeffrey Rosen.

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