Choosing a Chief Justice: Lincoln, Law, and Racial Equality
The appointment of any Supreme Court justice, especially the chief justice, reflects the issues and political trends of the day. But Abraham Lincoln’s appointment of Salmon Chase as chief justice in December 1864 did more than just reflect trends; it encapsulated the meaning of the Civil War and served as proof that the America that emerged from the Civil War was very different than the one that entered it.
When Lincoln ran for president in 1860, the Supreme Court was a crucial issue. In 1857, it had handed down the Dred Scott decision, which claimed that black Americans had no rights a white man was bound to respect. This decision made Chief Justice Roger Taney a hero to southerners and a villain to Republicans. Republican Senator John P. Hale of New Hampshire introduced legislation asking the Judiciary Committee to examine “the expediency and propriety of abolishing the present Supreme Court…and establishing instead thereof another Supreme Court.”
Hale’s plan was not viable, of course, and in any case, Lincoln’s victory meant that he would eventually get to appoint five new justices: three to succeed two who died (Peter Daniel in 1860 and John McLean in 1861) and one who resigned to join the Confederacy (John Campbell). For the appointments, Republicans rejiggered the circuits for which justices were responsible, and expected Lincoln to follow the tradition of seeking appointees from within those circuits. He did, naming Noah Swayne of Ohio, Samuel Miller of Iowa, and David Davis of Illinois to the court. The addition of a tenth justice to represent the newly created western circuit led to Californian Stephen Field’s selection in 1863.
But Lincoln’s four appointees by 1864 remained a minority, and Republicans saw the chief justiceship as the symbolic and substantive crux of the court. They openly hoped that Taney, aged, ailing and constantly claiming to be dying, would fulfill his own prophecy. He obliged them on October 12, 1864, less than a month before Lincoln’s reelection.
While the jockeying for the position began long before Taney’s death and gained steam afterward, one possible appointee outshone the others: Chase, who had been Lincoln’s secretary of the treasury. Although Lincoln had appreciated Chase’s support in the 1858 Senate election and the presidential race, and admired his dedication to the antislavery cause, Chase’s constant battles with Lincoln and conniving for power had done nothing to endear him to the president. Chase had repeatedly threatened to resign from the treasury when he didn’t get his way, and finally, to his shock, Lincoln accepted his resignation on June 30, 1864.
When Taney died, Chase’s fellow radical Republicans began lobbying Lincoln on his behalf. Senator Charles Sumner of Massachusetts told Lincoln, “Our new Chief Justice must believe in Liberty and be inspired by it,” a reminder that Chase had articulated the idea of “freedom national, slavery sectional” that had been so important to the Republican Party’s development.
Lincoln took no personal pleasure in appointing Chase. According to one account, Lincoln said that he would have preferred to swallow his elk horn chair. But Lincoln grasped the meaning of the chief justiceship and why Chase should have it. Lincoln told Representative George Boutwell of Massachusetts, “we cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it. Therefore we must take a man whose opinions are known.” Chase had supported the end of slavery and the establishment of civil rights, as well as Lincoln’s use of presidential power on their behalf, and Republicans could reasonably expect that as chief justice, he would uphold these fundamental Republican values.
As often happens with judicial appointees, though, they wind up addressing different issues than expected when they were chosen, or address them differently than the president who selected them would have preferred. The civil rights issues that Lincoln and other Republicans thought would matter to Chase’s chief justiceship wound up the subject of fights between Andrew Johnson and a Republican Congress that culminated in an impeachment trial over which Chase presided – and for which he received criticism from Republicans for his fairness. During Chase’s nine years on the Court, he spent more time ruling on the military and economic policies of the Lincoln administration than on civil rights.
But Chase’s appointment reflected a crucial change. The chief justice he succeeded had written that a black man had no rights that a white man was bound to respect. Chase was an intellectual father of the Republican Party and an advocate of universal suffrage. For those who debate whether the Civil War really was the second American revolution, Chase’s appointment suggests the answer.
About the Author: Michael Green is an associate professor of history at UNLV. In 2015, the University of Nevada Press will publish his Nevada: A History of the Silver State. He also is the author of Lincoln and the Election of 1860 (Southern Illinois University Press) and other works on the nineteenth century and the American West.