This morning’s Washington Post accused Abraham Lincoln of packing the Supreme Court. The Post said: “Lincoln definitely supported . . . court-packing. In 1863, he and Republicans in Congress passed a law to create a 10th Supreme Court seat for largely partisan reasons. All told, Lincoln appointed five justices in just four years and five weeks as president.”

Although some historians agree with the Post on this point, I do not. Since we are likely to have a debate, soon, about court-packing, we should look at Lincoln’s record more closely.

To understand the nineteenth-century Supreme Court, we have to understand that the justices had two roles: they were members of the Supreme Court, meeting in Washington, and they were circuit justices, assigned to geographic circuits, and expected to hold circuit court in each state in the circuit at least once a year. Chief Justice Roger Taney, for example, was assigned to the Fourth Circuit, which included his home state of Maryland as well as Delaware and Virginia. Each justice would hold circuit court (generally sitting with the district judge) in his assigned states during the months when the Supreme Court was not meeting in Washington.

It is also important to recall that, unlike the present federal circuit courts, which generally handle appeals from cases decided in the first instance in the federal district courts, the nineteenth century circuit courts were often trial courts. So the justices of the Supreme Court, while they were on circuit duty, had to handle the time-consuming and sometimes tedious work of presiding over trials.

When Lincoln became president, in March 1861, there was a vacancy on the Supreme Court, caused by the death of Peter Daniel, who had handled one of the southern circuits. One of Lincoln’s first actions as president was to ask that papers be prepared to nominate John Crittenden, senator from Kentucky, to the Supreme Court. Crittenden was not a Republican, and when word leaked that Lincoln was considering naming Crittenden to the Court, many Republicans opposed the idea. So Lincoln withdrew it, but his willingness to consider Crittenden shows that Lincoln was not interested in “packing” the Court with Republicans.

Two more vacancies on the Supreme Court opened in 1861: one because John Archibald Campbell resigned to go home to his native South and one because John McLean, the justice assigned to the circuit composed of Ohio, Indiana, Illinois and Michigan, died. Lincoln did not immediately nominate justices to replace Campbell and McLean, which again shows, in my view, how little Lincoln was interested in “packing” the Court.

President Lincoln’s main statement about the federal courts was in his December 1861 message to Congress. It is worth reading and considering closely.

Lincoln started:

“There are three vacancies on the bench of the Supreme Court—two by the decease of Justices Daniel and McLean and one by the resignation of Justice Campbell. I have so far forborne making nominations to fill these vacancies for reasons which I will now state. Two of the outgoing judges resided within the States now overrun by revolt, so that if successors were appointed in the same localities they could not now serve upon their circuits; and many of the most competent men there probably would not take the personal hazard of accepting to serve, even here, upon the Supreme bench. I have been unwilling to throw all the appointments northward, thus disabling myself from doing justice to the South on the return of peace; although I may remark that to transfer to the North one which has heretofore been in the South would not, with reference to territory and population, be unjust.”

Although there was a tradition that justices should reside in their circuits, nothing required this. So Lincoln was saying, here, that he was not willing to break the tradition by naming northern judges for southern circuits. He was also alluding to the way in which the slave states had more circuits than the free states even though the free states were more populous. There were four free state circuits, with a combined population in the 1860 census of about 16.6 million people. There were five slave state circuits, with a combined population including slaves of about 11.2 million people. Because justices were appointed on the basis of the circuits, the slave states had a five-to-four majority on the Supreme Court. This was an instance of what Chase and others denounced as the Slave Power, the control of the slaveowners over the federal government.

Lincoln continued:

“During the long and brilliant judicial career of Judge McLean his circuit grew into an empire altogether too large for any one judge to give the courts therein more than a nominal attendance—rising in population from 1,470,018 in 1830 to 6,151,405 in 1860.”

The seventh circuit, handled by McLean before his death, had indeed grown dramatically while he served on the Supreme Court, from 1829 to 1861. It was, as Lincoln said, utterly impossible for one justice to handle the volume of circuit court litigation in this circuit.

Lincoln continued:

“Besides this, the country generally has outgrown our present judicial system. If uniformity was at all intended, the system requires that all the States shall be accommodated with circuit courts, attended by Supreme judges, while, in fact, Wisconsin, Minnesota, Iowa, Kansas, Florida, Texas, California, and Oregon have never had any such courts. Nor can this well be remedied without a change in the system, because the adding of judges to the Supreme Court, enough for the accommodation of all parts of the country with circuit courts, would create a Court altogether too numerous for a judicial body of any sort. And the evil, if it be one, will increase as new States come into the Union. Circuit courts are useful or they are not useful. If useful, no State should be denied them; if not useful, no State should have them. Let them be provided for all or abolished as to all.”

This is perhaps the most important paragraph of the message, because Lincoln rejected the idea of creating enough additional justices to provide circuit justices for all the states not yet covered by the system. This is NOT the way in which a president, keen to pack the Court with additional justices, would have analyzed the problem.

Lincoln was right to include California on this list, because no Supreme Court justice was assigned to it, but California was a curious case, because it had a federal circuit court, with a single circuit judge, who resided in the state. If circuit courts with Supreme Court justices were useful, some means had to be devised of drawing circuits that would include California, at the time accessible only by way of a long voyage through Panama.

Lincoln continued:

“Three modifications occur to me, either of which, I think, would be an improvement upon our present system. Let the Supreme Court be of convenient number in every event; then, first, let the whole country be divided into circuits of convenient size, the Supreme judges to serve in a number of them corresponding to their own number, and independent circuit judges be provided for all the rest; or, secondly, let the Supreme judges be relieved from circuit duties and circuit judges provided for all the circuits; or, thirdly, dispense with circuit courts altogether, leaving the judicial functions wholly to the district courts and an independent Supreme Court.”

Those who accuse Lincoln of “packing the Court” like to quote the first part of the second sentence—“let the Supreme Court be of convenient number.” They like to suggest that Lincoln was urging Congress to increase the size of the Court—as indeed some Republicans favored. But read in the context of the whole passage, it seems to me that Lincoln was suggesting that the size of the Court should not increase much beyond its current number, nine justices; or perhaps even diminish, if the justices were relieved (as he suggested) of circuit duties.

During early 1862, Congress worked on a bill to revise the circuit system. The bill did not increase the size of the Supreme Court; it simply devised new boundaries for the circuits, so that they were more nearly equal in size. In the process, Congress reduced the number of circuits for the slave states (from five to four) and increased the number for the free states (from four to five). The bill did not solve the “California problem,” however; California was not included on the list of new circuits. Lincoln signed the bill into law in July 1862.

While this bill was pending, Lincoln made his first Court nomination, naming Noah Swayne of Ohio in January 1862 to handle the circuit previously handled by McLean. After the bill passed, Lincoln made his second nomination, naming Samuel Miller in July 1862 to handle the circuit that had belonged to Daniel. And in December 1862, Lincoln made his third nomination, naming his good friend Judge David Davis to handle the new circuit that included Illinois.

On February 20, 1863, Milton Latham, a Democratic senator from California, introduced a bill to add a tenth circuit (composed of California and Oregon) to the circuit system and a tenth justice to the Court. Two days later, the Senate Judiciary Committee reported out a revised version of the bill. Two days later, without any debate whatsoever, the Senate approved the bill. A few days later, again without any debate whatsoever, the House approved the bill. Lincoln signed the bill into law on March 3, 1863, just before the end of the congressional session.

David Silver, in his excellent book on Lincoln and the Supreme Court, claims that the purpose of this bill was to make the Supreme Court “safe” for Lincoln’s wartime policies. But Silver cites only two bits of evidence for this “court-packing” purpose. One is a February 1863 letter from an Illinois constituent to Senator Lyman Trumbull, suggesting that some new states should be added while the Republicans controlled Congress, so as to “make a necessity for another judge and put in one that will be true and help keep the power of the Court right.” The other is a paragraph in the daily New York Times report from Washington, reporting that the bill was awaiting Lincoln’s signature, and that the new justice would add “one to the number which will speedily remove the control of the Supreme Court from the Taney School.”

If Lincoln and the Republican Congress were really “packing the Court” with this bill, it would not have been drafted and sponsored by a Democratic senator. There would have been Democratic objections as the bill passed through Congress, and there would have been Democratic comments in the press. I spent an hour today looking for press comments on the bill; I could not find any other than the snippet just quoted from the New York Times. (If anyone can find comments, I would be interested to see them, and will update this post.) The bill was simply viewed as not that important. And there is nothing in the Lincoln papers to suggest that he pushed the bill through Congress; his only “comments” on the issue were those quoted above, when he noted that there were effectively no circuit courts for California and Oregon.

Stanley Kutler, in his excellent book on the Supreme Court and Reconstruction, has following comments on this bill to add a tenth circuit.

“The most striking thing about the congressional plan to increase the Supreme Court to ten members was the total absence of debate in Congress. When, in 1937, Franklin D. Roosevelt proposed adding up to six new members to the Court, the Republican party, then in a position analogous to that of the Democrats in 1863, united and fought tenaciously against the bill, albeit with crucial support from disenchanted elements of the majority party. Curiously, the Democratic party in Congress remained quiescent in 1863. While the New York Times applauded the measure and acknowledged that the new member would “speedily remove the control of the Supreme Court from the Taney School,” Democratic newspapers, usually quick and vociferous in the response to Republican measures, withheld comment. Perhaps remembering that they, too, had adjusted the Court to party needs in 1801 and 1837, the Democrats found it expedient to remain silent.”

I have only two quibbles with Kutler’s paragraph. First, the sentence quoted from the Times was not in an editorial praising the bill; it was a single sentence in a report by a single reporter. Second, I do not think that the Democratic papers were silent because they recalled that Democrats had adjusted the Court in 1801 and 1837; they just did not view this bill as important.

A few days after the bill passed, Lincoln nominated Stephen Field of California for the new, tenth seat on the Supreme Court. The Senate confirmed Field and he started work, in what would prove one of the longest and greatest careers on the Court. The key point to bear in mind about Field, however, as we consider whether Lincoln packed the Supreme Court, is that Field was a Democrat. Lincoln had probably never met Stephen Field before he nominated him for the Court, but he knew his brother, the famous law reformer David Dudley Field, who was also a leading Democrat.

As the Post’s article noted, Lincoln made one more Court appointment in his four years as president; he appointed Salmon Chase as chief justice in December 1864. This, however, was hardly court-packing. Chief Justice Roger Taney died in October 1864 and Lincoln appointed a successor in December 1864. If he was keen to pack the Court, Lincoln would have nominated Taney’s replacement at once, in October 1864, as Charles Sumner, a leading Republican, urged him to do. But Lincoln waited, not because, as some have suggested, he thought the next president should appoint the next chief justice, but rather in order to consult with Congress and others about the best appointment.

In short: if people decide, after the election, to proceed with proposals to increase the size of the United States Supreme Court, in other words to “pack the Court,” they should not cite Abraham Lincoln to support the proposal. Lincoln was not a Court-packing president.

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