Chase Court (1864–1873)

• Author: William M. Wiecek
• Pages: 337-342

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The decade of SALMON P. CHASE'S tenure as CHIEF JUSTICE of the United States was one of the more turbulent in the

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history of the Supreme Court. Laboring under the cloud of hostility engendered by DRED SCOTT V. SANDFORD (1857), hurt by partisan attacks from without and divisions within, staggering under loads of new business, the Chase Court nevertheless managed to absorb and consolidate sweeping new jurisdictional grants to the federal courts and to render some momentous decisions.

The Chase Court displayed an unusual continuity of personnel, which was offset by political and ideological heterogeneity. Of the nine men Chase joined on his accession (the Court in 1864 was composed of ten members), seven served throughout all or nearly all his brief tenure. But this largely continuous body was divided within itself by party and ideological differences. JOHN CATRON, who died in 1865, JAMES M. WAYNE, who died in 1867, and ROBERT C. GRIER, who suffered a deterioration in his faculties that caused his brethren to force him to resign in 1870, were Democrats. NATHAN CLIFFORD, an appointee of President JAMES BUCHANAN, and STEPHEN J. FIELD were also Democrats, the latter a War Democrat. SAMUEL F. MILLER, DAVID DAVIS, and JOSEPH P. BRADLEY were Republicans. Chase himself was an ex-Democrat who had helped form the Republican party in 1854, but he drifted back to the Democratic party after the war and coveted its presidential nomination. WILLIAM STRONG, Grier's replacement, and NOAH SWAYNE were also Democrats who turned Republican before the war. Like the Chief Justice, Davis never successfully shook off political ambitions; he accepted and then rejected the Labor Reform party's nomination for the presidency in 1872. From 1870, Republicans dominated the Court, which had long been controlled by Democrats.

The work of the Supreme Court changed greatly during Chase's tenure. In 1862 and 1866, Congress realigned the federal circuits, so as to reduce the influence of the southern states, which under the Judiciary Act of 1837 had five of the nine circuits. Under the Judiciary Act of 1866, the southern circuits were reduced to two. By the same statute, Congress reduced the size of the Court from ten to seven members, mainly to enhance the efficiency of its work, not to punish the Court or deprive President ANDREW JOHNSON of appointments to it. In 1869, Congress again raised the size of the Court to nine, where it has remained ever since. More significantly, the business of the Court expanded. By 1871, the number of cases docketed had doubled in comparison to the war years. This increase resulted in some measure from an extraordinary string of statutes enacted between 1863 and 1867 expanding the JURISDICTION OF THE FEDERAL COURTS in such matters as REMOVALOFCASES from state to federal courts, HABEAS CORPUS, claims against the United States, and BANKRUPTCY.

The Chase Court was not a mere passive, inert repository of augmented jurisdiction: it expanded its powers of JUDICIAL REVIEW to an extent unknown to earlier Courts. During Chase's brief tenure, the Court held eight federal statutes unconstitutional (as compared with only two in its entire prior history), and struck down state statutes in thirty-six cases (as compared with thirty-eight in its prior history). The attitude that produced this JUDICIAL ACTIVISM was expressed in private correspondence by Justice Davis, when he noted with satisfaction that the Court in EX PARTE MILLIGAN (1866) had not "toadied to the prevalent idea, that the legislative department of the government can override everything." This judicial activism not only presaged the Court's involvement in policy during the coming heyday of SUBSTANTIVE DUE PROCESS; it also plunged the Chase Court into some of the most hotly contested matters of its own time, especially those connected with RECONSTRUCTION. The Court also attracted the public eye because of the activities of two of its members: Chase's and Davis's availability as presidential candidates, and Chase's firm, impartial service in presiding over the United States SENATE as a court of IMPEACHMENT in the trial of Andrew Johnson.

The Chase Court is memorable for its decisions in four areas: Reconstruction, federal power (in matters not directly related to Reconstruction), state regulatory and tax power, and the impact of the FOURTEENTH AMENDMENT.

Nearly all the cases in which the Supreme Court disposed of Reconstruction issues were decided during Chase's tenure. The first issue to come up was the role of military commissions. In EX PARTE VALLANDIGHAM, decided in February 1864 (ten months before Chase's nomination), the Court refused to review the proceedings of a military commission, because the commission is not a court. But that did not settle the issue of the constitutional authority of military commissions. The matter came up again, at an inopportune time, in Ex parte Milligan, decided in December 1866. Milligan had been arrested, tried, convicted, and sentenced to be hanged by a military commission in Indiana in 1864 for paramilitary activities on behalf of the Confederacy. The Court unanimously ruled that his conviction was illegal because Indiana was not in a theater of war, because the civil courts were functioning and competent to try Milligan for TREASON, and because he was held in violation of the provisions of the HABEAS CORPUS ACT OF 1863. But the Court split, 5?4, over an OBITER DICTUM in Justice Davis's MAJORITY OPINION stating that the Congress could never authorize military commissions in areas outside the theater of operations where the civil courts were functioning. The Chief Justice, writing for the minority, declared that Congress did have the power to authorize commissions, based on the several WAR POWERS clauses of Article I, section 8, but that it had not done so; hence Milligan's trial was unauthorized.

Milligan created a furor in Congress and deeply implicated

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the Court in the politics of Reconstruction. Assuming that military commissions were essential to the conduct of Reconstruction, Democrats taunted Republicans that Milligan implied that they were unconstitutional, and hence that proposed Republican measures providing for military trials in the CIVIL RIGHTS ACT OF 1866 and FREEDMEN ' SBUREAU Act violated the Constitution. Taken together with subsequent decisions, Milligan caused Republicans some anxiety. But, as Justice Davis noted in private correspondence and as Illinois Republican LYMAN TRUMBULL stated on the floor of the Senate, the decision in reality had no application to the constitutional anomaly of Reconstruction in the South.

The Court next seemed to challenge congressional Reconstruction in the TEST OATH CASES, Ex parte Garland and...