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The first Court-packing plan

SCOTUSblog is delighted to partner with the Supreme Court Historical Society to provide a look back at important events in the Court’s history.  Our first collaboration comes from Timothy S. Huebner, the L. Palmer Brown Professor of Interdisciplinary Humanities and Chair of the Department of History at Rhodes College; Professor Huebner is also the Associate Editor of the Journal of Supreme Court History.

One hundred fifty years ago this spring, in 1863, a tenth Justice assumed his duties on the Supreme Court.  The appointment of Stephen J. Field of California, a pro-Union Democrat nominated by President Lincoln, came in the midst of a largely partisan attempt to reshape the Court during the Civil War.

The Constitution does not specify the number of Supreme Court Justices.  Initially, Congress provided for a six-Justice Court, but the expansion of the country and the addition of new federal judicial circuits prompted an increase in the Court’s membership.  In 1807 Congress added a new circuit and a new Justice and in 1837 provided for two additional circuits and Justices.  At the time, the Justices served double duty as both federal circuit judges and Justices of the Supreme Court.  Enduring the hardships of early nineteenth-century travel, they spent the majority of their time on circuit, away from the nation’s capital.

The connection between geographical circuits and the work of the Justices meant that the Justices were typically nominated from these circuits.  So, when the Court added additional circuits in 1837 from the area then known as the Old Southwest (Tennessee, Louisiana, Alabama, Mississippi), Tennessean John Catron and Alabamian John McKinley filled the new positions.

Once the Judiciary Act of 1837 had established the size of the Court at nine Justices, it stayed there for the next two-and-a-half decades.

But when the Civil War came, the Supreme Court stood at the center of controversy.  The Court’s pro-slavery Dred Scott decision of 1857, followed by the election in 1860 of the Republican Lincoln — who had made his name as a vocal opponent of the decision – meant that the Court found itself in the political crosshairs.

A rapid succession of vacancies on the Court after Dred Scott gave Lincoln the opportunity to reshape the Court.  In the midst of war, Lincoln sought to appoint Justices who would further the federal war aims of preserving the Union and ending slavery.

The like-minded Republican Congress, meanwhile, sought to re-draw the boundaries of the federal circuits.  In the summer of 1862, Congress squeezed all the Justices from southern slaveholding states into two circuits (previously, the slave states had been spread across five), to legitimate the appointment of northern Justices and reduce southern influence on the Court.

In March 1863, Congress went further, creating an additional circuit and thus an additional seat on  the Supreme Court.  The move was both pragmatic and political.  The rapid increase of the population of California during the previous decade had generated a flurry of complicated cases pertaining to western land titles – so a new circuit judge was needed – but the addition of another Justice would certainly aid Lincoln and the Republicans in prosecuting the war.

The legislation came just as the Court was considering a major challenge to Lincoln’s blockade of southern ports.  In a five-to-four decision handed down right before Field began his duties, the Court upheld the blockade and handed Lincoln a major victory.  By adding a Justice, the Republican Congress reminded the Court at a critical time that it had the power to affect its membership.

Republican efforts to adjust the Court to accommodate political realities did not end there.  In 1866, just after the war ended, Congress enacted legislation reducing the Court’s size by attrition to seven, thereby preventing President Andrew Johnson – a fierce opponent of congressional Reconstruction plans – from nominating any Justices.  Again, passage of the act did not stem entirely from politics.  Chief Justice Salmon P. Chase particularly championed the measure, which he hoped would spur Congress to increase the Justices’ salaries.  (It didn’t – not immediately, anyway.)  Nevertheless, Republicans continued  to try to ensure the constitutionality of their post-war blueprint for the nation.

Three years later, with Johnson out of office, Congress returned the size of the Court to nine Justices, where it has remained ever since.

Between 1862 and 1869, Congress thus re-arranged the federal circuits to curb southern influence, added a tenth Justice to uphold Union war policies, and reduced the size of the Court to thwart an antagonistic president.  Taken together, these measures constituted a mostly partisan attempt to shape the structure and personnel of the Supreme Court:  the first Court-packing plan.


Recommended reading: 

Timothy S. Huebner, The Taney Court:  Justices, Ruling Legacy (2003); Brian McGinty, Lincoln and the Court (2008); David M. Silver, Lincoln’s Supreme Court (orig. pub., 1956, republished, 1998).



Recommended Citation: Timothy Huebner, The first Court-packing plan, SCOTUSblog (Jul. 3, 2013, 1:37 PM),