President Lincoln Fills a Supreme Court Vacancy

On October 15, 1864, the

Quincy
Daily Whig

informed readers that, “Washington dispatches of the 13th
have just reached us announcing the death of” Roger B. Taney, Chief Justice of
the United States, at age 87. Election Day was November 8, and President
Abraham Lincoln was standing for reelection. Adams County, with the nation,
awaited news of what action, if any, he would take to nominate Taney’s
successor.

Taney, appointed chief justice by
President Andrew Jackson, had served on the Court since 1836. Readers probably associated him most closely
with his majority opinion in the Dred
Scott

case of 1857, a
decision denounced by the

Whig.

Taney
had articulated two controversial holdings: first, the very offensive statement
that a slave could never be recognized as a citizen entitled to petition a
federal court for his freedom and, second, that Congress lacked the
constitutional authority to prohibit slavery in territories not yet admitted as
states (such as Kansas and Nebraska).

On March 31, 1857 the

Quincy Daily

Whig

, commenting on
the decision, had condemned the “slavery oligarchy” which “has its hand now
upon the Government from the highest to its lowest official. All men do its
behest.” When Lincoln and Stephen A. Douglas debated in Quincy on October 13,
1858, Lincoln had expressed his party’s criticism of the decision: “We
do not propose to be bound by it as a political rule in that way, because we
think it lays the foundation not merely of enlarging and spreading out what we
consider an evil, but it lays the foundation for spreading that evil into the
States themselves. We propose so resisting it as to have it reversed if we can,
and a new judicial rule established upon this subject.”

Taney and Lincoln met on March 4, 1861 as the chief justice administered
the constitutional oath to the new president. Certainly Taney knew that Lincoln
was referring to the Dred Scott
case when the president said in his Inaugural Address that the “candid citizen must confess that if the policy of the
Government upon vital questions affecting the whole people is to be irrevocably
fixed by decisions of the Supreme Court, the instant they are made in ordinary
litigation between parties in personal actions the people will have ceased to
be their own rulers, having to that extent practically resigned their
Government into the hands of that eminent tribunal.”

In short, Lincoln told Taney and
all those present, the Court’s decision had expropriated legislative/executive
powers to establish public policy, which the Constitution had invested
exclusively in Congress and the Presidency.

Within weeks Lincoln and Taney
clashed. Opponents of Lincoln in Maryland
were impeding movement of Union troops by blowing up railroad bridges. Lincoln
suspended the constitutional right to a writ of habeas corpus and authorized
Army commanders to arrest and imprison saboteurs. The lawyers for one detainee,
John Merryman, in a questionable tactic, applied directly to Taney in
Washington, requesting him to order that the military justify its confinement
of their client.

On May 27, 1861, the

Quincy Daily
Whig

reported that, “John Merryman, a wealthy and respectable citizen of
Baltimore County, was arrested last night by Government officers, charged with
burning the bridges on the North Central Road. He was taken to Fort McHenry. It
is understood he acted by authority of the Mayor and police commissioner.”

Taney conducted a hearing in
Baltimore, then, acting without the other Supreme Court justices, eventually
ordered the Army to bring Merryman to a court hearing. Lincoln ignored the
order, and the military continued to hold Merryman for about six weeks. A
civilian grand jury indicted him for treason, but he posted bail and Taney
refused to set his criminal case for trial. Merryman suffered no further legal
consequences.

With Taney’s death, Lincoln had an
extraordinary opportunity. By April, 1863 he had appointed Noah Swayne, Samuel
Miller, David Davis of Bloomington Illinois, and Stephen Field to the Court.
Taney’s vacant position allowed Lincoln not only to appoint a fifth jurist (and
the last needed to assure a Lincoln majority on the nine-member bench), but
also to name a new chief justice whose authority could change the direction of
a tribunal dominated by almost thirty years of appointees chosen by Democratic
presidents. As a former Whig and the first Republican president, Lincoln surely
understood the political significance of this moment.

Lincoln, however, was more than a
masterful politician. In his Illinois legal practice, he had been one of the
best constitutional lawyers in the United States. Perhaps, like the Quincy
Daily

Whig

, he recognized some merit in Taney’s earlier work. When
illness threatened Taney’s life in 1855, the paper had republished a New York
dispatch saying, “Under the most favorable circumstances, in the nature of
things, that his connection with the Supreme Court cannot be very prolonged;
but come when the separation may, it will be attended with deep regret by the
public, and by a sense of serious loss to the highest tribunal know to our
laws.”

Lincoln refrained from naming
Taney’s successor in the 28 days before Election Day. In the Electoral College,
Lincoln carried every state except Kentucky and Delaware. On December 6, 1864, he nominated a former
political rival and esteemed ally of abolitionists and of the Radical
Republicans who had long considered Lincoln too cautious, Salmon P. Chase. The
Senate confirmed Chase the same day. (Regular Senate Judiciary Committee
hearings before a Senate vote on Supreme Court nominees did not begin until
1955)

As Chief Justice, Chase presided over
the Senate impeachment trial of Lincoln’s successor, Andrew Johnson, who
escaped conviction and removal from office by one vote. By ratification of the
13th Amendment in 1865, the United States abolished slavery and
declared that all persons born in this country, without exception, were
citizens, thereby nullifying Taney’s ruling in the Dred Scott case.

SOURCES

Basler, Roy P., editor,

The Collected Works of
Abraham Lincoln, “

”, III, pp.245, 255 (1953).

Basler, Roy P.,
editor, ibid., “First Inaugural Address—Final Text, March 4, 1861,” IV, 262–71.

“By Telegraph—Morning
Dispaches—From Baltimore”,

Quincy Daily Whig

, May 27, 1861, p. 2

“Death
of Chief Justice Taney”,

Quincy Daily Whig

, October 15, 1864, p. 2.

“Illness of Chief Justice
Taney”,

Quincy Daily Whig

, December 31, 1855, p. 2.

“Perversion
of Truth”,

Quincy Daily Whig,

March 31, 1857, p.2.

.

,
60 U.S. 393 (1857); (the name of the respondent owner of Dred Scott was misspelled
by the Court reporter and should have been “Sanford”.)

Stone, Geoffrey R., “Understanding Supreme Court
Confirmations”,

The Supreme Court Review,

(January 2011), pp. 381-467