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Presidential War Powers
Reconstruction and Review
Gold or Greenbacks?

The Civil War decade brought the Supreme Court to a new low in public esteem. It was, as Swisher explains, “not merely because it had handed down the Scott decision but because the rule of law as interpreted by the judiciary had given way to a rage for unrestricted exercise of power—which seemed to flare with even greater violence once the battlefields were stilled. There could be a restoration of the prestige of the judiciary only with restoration of respect for the rule of law.” [111]

During the last years of Chief Justice Taney′s tenure and that of his successor, Chief Justice Salmon Portland Chase, the Court underwent considerable change. It moved into a new courtroom, grew to ten members and then shrank to eight, gained five new members—including the new chief justice—and found itself addressing extremely sensitive questions of executive power. In mid-1860 Justice Daniel died, and his seat remained empty for almost two years. Late in his term, President Buchanan named his former attorney general and secretary of state, Jeremiah S. Black, to fill Daniel′s seat, but in February 1861 political opposition within both parties led to the rejection of Black′s nomination, 26–25.

The Civil War broke out in April. That same month Justice McLean died, and Justice Campbell resigned when Alabama, his home state, seceded. President Abraham Lincoln therefore had three seats to fill as soon as he reached the White House. In January 1862 he selected Noah Haynes Swayne, an Ohio attorney, to fill the McLean seat. In July 1862 Lincoln filled Daniel′s seat by naming Samuel Freeman Miller of Iowa, the only justice trained in medicine as well as law. To the third seat Lincoln named his close friend and political adviser David Davis of Illinois. In March 1863 Congress added a tenth seat to the Court, giving Lincoln a fourth appointment. To that new seat he named Stephen Johnson Field, chief justice of the California Supreme Court.

When the Court gathered for its December 1860 term, it met in a new courtroom. After four decades in the basement under the Senate chamber, the Court moved upstairs. The new wings of the Capitol housing the Senate and House had been completed, and the old Senate chamber was refurbished for the Court at a cost of $25,000. The Court met in this room for the next seventy-five years, until it moved into its own building. In 1861 the Court got a new reporter. Benjamin Howard had resigned to run a losing race for Maryland governor. He was followed by Jeremiah Black, Buchanan′s unsuccessful nominee for the Daniel seat. Black served for only two years, resigning in 1863 to resume his private law practice. He was succeeded in 1864 by John William Wallace of Pennsylvania.

The Court in 1865. From left: Court Clerk Daniel W. Middleton, Justices David Davis, Noah H. Swayne, Robert C. Grier, James M. Wayne, Chief Justice Salmon P. Chase, Justices Samuel Nelson, Nathan Clifford, Samuel F. Miller, Stephen J. Field. (Source: Library of Congress.)

Presidential War Powers

The Civil War began in April 1861. Congress was not in session and did not meet until midsummer. In the interim President Lincoln called for troops, imposed a blockade on southern ports, and in some circumstances authorized military commanders to suspend the writ of habeas corpus. These actions were the most dramatic expansion of executive power in the nation′s history to that point, and not surprisingly they were challenged as exceeding the president′s constitutional authority. Chief Justice Taney was among the first to declare Lincoln′s actions unconstitutional. In May, the month after war had broken out, a military commander in Baltimore refused to comply with Taney′s order—issued as a circuit judge, not a Supreme Court justice—to produce in court one John Merryman, a civilian imprisoned by the Union army for his anti-Union activities. The commander cited, as grounds for his refusal, Lincoln′s instructions allowing him to suspend the privilege of the writ of habeas corpus, the instrument used to inquire into the reasons justifying an individual′s detention by government authority. Taney responded with an opinion, which he sent to Lincoln himself, declaring that only Congress could suspend this privilege and that Lincoln′s actions were unconstitutional. If such authority can be “usurped by the military power the people of the United States are no longer living under a government of laws, but every citizen holds his life, liberty, and property at the will and pleasure of the army officer in whose military district he may happen to be found.” [112] Lincoln, undeterred, continued to insist that emergency conditions required the exercise of extraordinary power. Five years later, after Taney and Lincoln were dead, the Supreme Court, in Ex parte Milligan (1866) confirmed Taney′s position. [113]

The legality of Lincoln′s blockade of southern ports was the major war issue resolved by the Court during the fighting. The Prize Cases (1863) were decided in favor of presidential power, although only by a 5–4 vote. [114] Had the vote gone the other way, all of Lincoln′s wartime actions would have been called into question, seriously undermining his ability to lead the nation in the conflict. The majority upheld the president′s power to institute the blockade even before Congress officially had authorized such an action.

The vote made clear the importance of Lincoln′s appointments to the Court. The majority consisted of his first three nominees—Swayne, Miller, and Davis—plus Wayne and Grier, who wrote the majority opinion. Dissenting were Taney, Nelson, Catron, and Clifford. Having resolved that critical question, the Court retreated to a position of restraint in dealing with issues of war. In the December 1863 term, Taney′s last, the Court held that it lacked jurisdiction to hear a challenge to the use of paper money as legal tender—necessary to finance the war—or over a petition of habeas corpus ordering military officials to justify their detention of a civilian. [115] Within six years, the Court reversed both holdings.

In October 1864, as the war neared its end, Chief Justice Taney died. He was eighty-seven years old and had served the nation as its chief justice for twenty-eight years. President Lincoln wished to name a man who would back the administration on the critical issues of emancipation—another exercise of extraordinary presidential powers that lacked any clear base in the Constitution—and legal tender. Congress had passed laws making paper money legal tender, in place of gold, to enable the Union to finance its war effort. Lincoln chose Salmon Chase, a potential political rival who had, nevertheless, served until mid-1864 as secretary of the Treasury. After his reelection in 1864, Lincoln nominated Chase as chief justice. Chase, fifty-six, was confirmed and seated as the Court began its December 1864 term.

“Never again would there be a term wherein so few questions of importance were answered as in that of 1864–65,” writes historian Charles Fairman. [116] The next term, however, raised another facet of the Merryman issue that had confronted Taney five years earlier: May a president in wartime replace the nation′s civilian courts with courts-martial, to which civilians as well as military personnel are subject? In April 1866 the Supreme Court answered this question with an emphatic no—just as Taney had. The justices were unanimous in holding that Lincoln had acted illegally when he instituted trial by military commission for civilians in areas not engaged in the war and where the civil courts continued to function. [117] The Court divided 5–4 on whether Congress and the president acting together could replace civilian justice with courts-martial in such areas.

The Court′s full opinions in Ex parte Milligan were not released until December 1866—eight months after the decision. The majority opinion was written by Lincoln′s friend, Justice Davis, who warned, as Taney had, that suspension of constitutional guarantees during wartime would lead to despotism. The ruling and the opinions provoked harsh criticism in Congress, where they were viewed as evidence that the Court would—at its first opportunity—hold unconstitutional the military regimes imposed by Congress upon the defeated South as its Reconstruction program.

Congressional criticism took a variety of forms—proposals for impeachment of the justices in the majority, “reorganization” of the Court through the addition of new seats, curtailment of the Court′s appellate jurisdiction, and the requirement that the Court be unanimous on constitutional rulings. In fact, the Court did undergo some reorganization at this point, due, however, more to the unpopularity of President Andrew Johnson than to the Court′s rulings. In May 1865 Justice Catron died after twenty-eight years on the bench, the last of which he had spent in virtual exile from his southern home. Johnson′s April 1866 nomination of his close friend, Attorney General Henry Stanbery, died after the Senate abolished the vacant seat and reduced the size of the Court to eight by providing that Catron′s seat and the next one becoming vacant not be filled. In mid-1867 Justice Wayne, the Court′s other southern member, died after thirty-two years on the bench. He was the last of the Jackson justices; his service had spanned the Taney era. His seat was not filled, and the Court was now eight members.

Reconstruction and Review

The apprehension of the Reconstruction architects was heightened early in 1867 when the Court struck down an act of Congress requiring persons wishing to practice law before the federal courts to take a “test oath” affirming their loyalty, past and present, to the Union. Augustus H. Garland, a noted Supreme Court advocate who had served in the Confederate government, challenged this requirement. A similar state law also was challenged. In Ex parte Garland and Cummings v. Missouri, known as the Test Oath Cases (1867), the Court held the state and federal oaths unconstitutional, in violation of the bans on ex post facto laws and bills of attainder. [118] The only Lincoln justice voting with the majority against the oaths was Field, who apparently was persuaded by the arguments of his brother, David Dudley Field, who had argued one of the cases before the Court.

After Milligan and the Test Oath Cases, however, the Supreme Court showed no stomach for battle with Congress on the overall issue of Reconstruction. In the 1867 term—only months after the Garland case—the Court unanimously refused Mississippi′s request that it order President Johnson to stop enforcing the Reconstruction Acts. Such an order, the Court held in Mississippi v. Johnson (1867) was outside its power and its jurisdiction. [119] In 1868, however, a southern editor named William McCardle asked the Court to order his release through a writ of habeas corpus to military authorities in Mississippi. This case brought to a peak the concern of Reconstruction advocates in Congress. McCardle was being held for trial by a military commission on charges that his anti-Reconstruction articles were impeding the process of “reconstructing” the South. The Court heard arguments the first week of March 1868, just as the Senate opened its impeachment trial of President Johnson. Three days after the Court had taken McCardle′s case under advisement, Congress revoked its jurisdiction over such cases. Johnson vetoed the bill. It was immediately repassed over his veto.

The Court then considered a new issue, the impact of the repeal of its jurisdiction on the pending case. In May the Senate acquitted President Johnson. In April 1869 the Court dismissed Ex parte McCardle, finding unanimously that once Congress revoked its jurisdiction over a category of cases, all it could do was dismiss all pending cases of that type. [120] The same day, in Texas v. White, the Court majority endorsed the view that as a matter of law the seceding states never had left the Union—that states had no power to secede—a moot point in 1869. [121] Justices Swayne, Grier, and Miller objected that the majority was endorsing a legal fiction and ignoring political reality.

Gold or Greenbacks?

To finance the war, Congress had passed the Legal Tender Acts, allowing the use of paper money to pay debts. These laws, which resulted in drastic change to the nation′s economic system, were challenged repeatedly in federal courts. In the December 1867 term, the Supreme Court heard a challenge in Hepburn v. Griswold. A second round of arguments took place in December 1868; one of the attorneys arguing in support of the acts was former justice Benjamin Curtis. The Court was expected to uphold the acts. After all, Chief Justice Chase had been secretary of the Treasury when they were approved. No decision, however, was announced during the December 1868 term.

The justices apparently did not reach a decision until November 1869, and even then their efforts were hampered by the vacillations of the aged Justice Grier, who voted in conference first to uphold the acts but then to strike them down. [122] The final vote was 5–3 against the Legal Tender Acts. [123] In the majority was Chief Justice Chase and Justices Nelson, Clifford, Field, and Grier.

Congress in 1869 provided that a justice might retire and continue to receive half his salary. In December—before the Court announced its decision in Hepburn v. Griswold—Justice Grier, seventy-six, was persuaded to retire, effective February 1, 1870. Six days after his resignation, on February 7, 1870, the Court announced that by a 4–3 vote it found the statutes unconstitutional. The majority held that the laws were inappropriate means for the exercise of the war powers, and as applied to debts contracted before the passage of the laws, they were a clear impairment of contract obligations. Justices Miller, Swayne, and Davis dissented.

Even as Chief Justice Chase was reading the opinion, the most effective Court-packing in the nation′s history was under way—or at least the best-timed appointments. After Ulysses S. Grant′s election as president in 1868, Congress increased the size of the Court to nine, giving Grant a new seat to fill. Grier′s decision to retire opened a second vacancy. Grant first chose Attorney General Ebenezer Hoar of Massachusetts for the new seat, but personal and political opposition was developing in the Senate. To smooth the way for Hoar′s confirmation, Grant nominated former secretary of war Edwin M. Stanton—the choice of most members of Congress—for Grier′s seat. Stanton was confirmed immediately, but died four days later. Hoar′s nomination was rejected, 33–24, on February 3, 1870. Four days later, Grant sent two more names to the Senate: Joseph P. Bradley of New Jersey, a railroad attorney and Grier′s personal choice, and William Strong of Pennsylvania, a state judge. Bradley and Strong were confirmed by votes of 46–9 and 46–11, respectively, and seated in March. Within weeks the Court announced that it would rehear the constitutional challenge to the Legal Tender Acts. The second of these cases, Knox v. Lee, was argued in the December 1870 term.

On May 1, 1871, fifteen months after Hepburn v. Griswold, the Court reversed itself. By a 5–4 vote, it overruled the earlier 4–3 vote. The majority upheld the Legal Tender Acts as a proper exercise of the power of Congress. [124] Justice Strong, who with Bradley converted the dissenters in Hepburn into the majority in Knox, wrote the opinion. The full opinions were not released until January of the following year. This abrupt about-face—so clearly the result of a change in the Court′s membership—damaged the public confidence that the Court had been slowly regaining after Scott and the war decade. It was, in the words of Charles Evans Hughes, the second of the Court′s self-inflicted wounds. There was no ground for attacking the honesty of the judges or for the suggestion that President Grant had attempted to pack the court,” Hughes writes. He adds, however, “Stability in judicial opinions is of no little importance in maintaining respect for the court′s work.” [125]


Changes in the Size of the Supreme Court


Act of Congress



Judiciary Act of 1789



Circuit Court Act of 1801



Repeal of Circuit Court Act of 1801



Judiciary Act of 1807



Congressional addition (1837)



Judiciary Act of 1863



Congressional reduction (1866)



Judiciary Act of 1869 [*]


[*] The Judiciary Act of 1869 mandates “That the Supreme Court of the United States shall hereafter consist of the Chief Justice of the United States and eight associate justices.”


Document Citation
1 David G. Savage, War and Recovery, 1861–1872, in Guide to the U.S. Supreme Court 23-26 (5th ed., 2011),
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