In the 1860s, President Abraham Lincoln worked with fellow Republicans to shape the Court to carry out his party’s anti-slavery and pro-Union agenda. It was an age in which the court was unabashedly a “partisan creature,” in historian Rachel Shelden’s words.
Justice John Catron had advised Democrat James K. Polk’s 1844 presidential campaign, and Justice John McLean was a serial presidential contender in a black robe. And in the 1860s, Republican leaders would change the number of justices and the political balance of the Court to ensure their party’s dominance of its direction.
Overhauling the Court
When Lincoln became president in 1861, seven Southern states had already seceded from the Union, yet half of the Supreme Court justices were Southerners, including Chief Justice Roger B. Taney of Maryland. One other Southern member had died in 1860, without replacement. All were Democratic appointees.
The Court was “the last stronghold of Southern power,” according to one Northern editor. Five sitting justices were among the court’s 7-2 majority in the racist 1857 Dred Scott v. Sandford ruling, in which Taney wrote that Black people were “so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit.”
Some Republicans declared it “the duty of the Republican Party to reorganize the Federal Court and reverse that decision, which … disgraces the judicial department of the Federal Government.”
After Lincoln called in April, 1861 for 75,000 volunteers to put down the Southern rebellion, four more states seceded. So did Justice John Archibald Campbell of Georgia, who resigned on April 30.
Chief Justice Taney helped the Confederacy when he tried to restrain the president’s power. In May 1861, he issued a writ of habeas corpus in Ex Parte Merryman declaring that the president couldn’t arbitrarily detain citizens suspected of aiding the Confederacy. Lincoln ignored the ruling.
Remaking the Court
To counter the court’s southern bloc, Republican leaders used judicial appointments to protect the president’s power to fight the Civil War. The Lincoln administration was also looking ahead to Reconstruction and a governing Republican majority.
Nine months into his term, Lincoln declared that “the country generally has outgrown our present judicial system,” which since 1837 had comprised nine federal court jurisdictions, or “circuits.” Supreme Court justices rode the circuit, presiding over those federal courts.
Republicans passed the Judiciary Act of 1862, overhauling the federal court system by collapsing federal circuits in the South from five to three while expanding circuits in the North from four to six. The old ninth circuit, for example, included just Arkansas and Mississippi. The new ninth included Missouri, Kansas, Iowa and Minnesota instead. Arkansas became part of the sixth, and Mississippi, the fifth.