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Chase, Salmon Portland

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Birth: January 13, 1808, Cornish, New Hampshire.

Education: Dartmouth College, 1826.

Official Positions: U.S. senator, 1849–1855, 1861; governor of Ohio, 1856–1860; secretary of the Treasury, 1861–1864.

Supreme Court Service: Nominated chief justice by President Abraham Lincoln, December 6, 1864, to replace Chief Justice Roger B. Taney, who had died; confirmed by the Senate, December 6, 1864, by a voice vote; took judicial oath December 15, 1864; served until May 7, 1873; replaced by Morrison R. Waite, appointed by President Ulysses S. Grant.

Death: May 7, 1873, New York City.


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Salmon Portland Chase
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Salmon Portland Chase

One of ten children born to a New Hampshire farmer-legislator, Chase moved to Ohio in 1820 with his uncle, an Episcopal bishop, three years after his father's death left the family impoverished. He graduated Phi Beta Kappa from Dartmouth College in 1826, briefly considered a career in the ministry, but instead studied law—and politics—in Washington, D.C., as an apprentice to Attorney General William Wirt. Admitted to the bar in Cincinnati, he established a successful practice and then involved himself in various reform causes, especially temperance and antislavery. By the 1840s Chase's earnest but radical views on slavery and his legal efforts on behalf of runaways earned him the label “Attorney General for the Runaway Negroes.”

Although active in Whig and then Liberty Party politics from the 1830s, Chase did not hold public office until 1849. The compromise choice of the state legislature for U.S. senator from Ohio, once in Washington Chase opposed the Kansas-Nebraska Act and participated in the anti-Nebraska movements that led to formation of the Republican Party. Chase returned to Ohio in 1855 and won two terms as governor before gaining election again to the Senate, this time as a Republican. An unsuccessful candidate for the Republican presidential nomination in 1860, he joined the Lincoln administration as secretary of the Treasury and skillfully managed wartime finances. He resigned abruptly from the cabinet in 1864 and considered running against the president, but eventually declined to do so. After the election, Lincoln fulfilled earlier promises to Radical Republicans by nominating Chase to succeed Roger B. Taney, who had died two months before, as chief justice.

Chase's staunch opposition to slavery and his alliance with congressional radicals caused concern among political conservatives, but the new chief justice steered a moderate course. He was, in truth, a one-issue radical. He emphasized the national character of freedom and insisted on equality before the law for all citizens: the Declaration of Independence, the Constitution's general welfare provision, and the Bill of Rights contained individual rights that the nation should protect in the states. On other issues, especially fiscal and monetary matters, Chase held conservative views. A states' rights nationalist, he believed the federal government, although supreme, had no permanent role in state affairs so long as states treated equally all residents engaged in lawful pursuits. Above all, Chase was pragmatic: law, like politics, required compromise. His pragmatism served him well on the Court.

Few men have become chief justice with a more thorough grounding in the art of governing, and Chase needed these political skills because he assumed leadership of a weakened Court struggling to regain its stature as an equal branch of government. The self-inflicted wound of Dred Scott v. Sandford (1857) had damaged the Court's reputation, and the emergencies of war had shifted power decisively to the president and Congress. At first, the opportunities to restore the balance appeared meager. Trivial issues crowded the docket, much to the dismay of the activist Chase. Missing were the momentous race-centered concerns that occupied the attention of Congress and the president. Also absent were important issues about the nature of a reconstructed Union and its impact on prewar understandings of federal-state power.

This state of affairs changed quickly beginning in 1865. Although few decisions during Chase's tenure addressed matters of race, questions about Reconstruction loomed large on the Court's agenda. Also important were economic and social issues given impetus by the Civil War, issues that reflected the nation's nascent transformation from an agrarian to an industrial power. Led by Chase, the justices took advantage of the cases before them. By 1867 the Court had seized a far greater share of federal power than had seemed possible a scant three years earlier. By the time of Chase's death in 1873, the Court had regained near equality with the legislative and executive branches, at times aggressively extending its authority to review state and national actions. Symbolic of this renewed authority was the Court's invalidation of congressional statutes. Before 1865 only two acts of Congress had ever been declared unconstitutional; by 1873 the total was twelve, seven of them since 1869.

Yet for all its asser-tiveness, a cautious moderation was the dominant tone on the Chase Court. The justices reflected the uncertainties and divisions of the Reconstruction era, when Congress and president vied for the power to set conditions for the rebellious states' reentry into the Union. They also sat during a gradual shift from an instrumentalist to a formalist conception of law. Antebellum jurists and commentators had accepted the state legislatures' right to use law as an instrument of social and economic policy, even if it meant abandoning precedent or modifying rights, especially property rights. Although permissive instrumentalism was still the norm in 1865, Civil War experiences tempered its thrust. Not only did war aims emphasize individual and minority rights, but the conflict also spurred the creation of a national market and raised constitutional questions about the role of state legislatures in the regulation of business and interstate commerce. Legal theorists increasingly promoted formalism, or an emphasis on formal legal procedures and judicial review, as a means of protecting many kinds of individual rights from legislative interference, including property rights of the corporation, recognized in law as an artificial person. Taken as a whole, the Chase Court's decisions reflected these various conflicts, serving as a bridge between two political and constitutional eras.

Before the Chase Court, no group of justices had ever been as politically oriented as this one. Each justice maintained close political connections outside the Court. More important, the associate justices generally held conceptions of national power different from the Republican Congress, which took an expansive view of its constitutional authority. Three justices—Robert C. Grier, Nathan Clifford, and Samuel Nelson—were holdover appointees of prosouthern Democratic presidents before the war, and these justices clung to a narrow view of federal constitutional power. Two others—John Catron, who died in 1865, and James Wayne—had been appointed by Andrew Jackson and shared his states' rights nationalism. Even most of the justices appointed by Lincoln held more conservative views than Congress, especially its radical Republican bloc. The headstrong Stephen J. Field was a “War Democrat” who supported the Union but held an antimajoritarian, laissez-faire conception of federal power in peacetime. Lincoln's friend and political ally, David Davis, was a moderate Republican who ultimately left the party over the impeachment of Andrew Johnson. Only Noah Swayne and Samuel Miller, together with Chase, were initially sympathetic to the arguments of congressional radicals that the federal government could override state power to achieve Reconstruction policies or that Congress's authority in these matters was greater than the president's.

As chief justice, Chase faced several challenges: managing the Court's affairs so as not to create factions among his colleagues; claiming an independent role for the Court in the struggle between Congress and president over Reconstruction; addressing the changed nature of federal-state relations that resulted from the Civil War; securing the rights of all citizens as promised by the Union victory; and helping the Court to reconcile the constitutional problems posed by the new industrial economy and the shift in law from instrumentalism toward formalism. In all five areas, his political skills proved useful.

Chase was foremost a politician, even while serving as the nation's highest judicial officer. He neither hid his interest in politics nor severed his political connections. So strong was his attachment that, in 1868, he actively considered another bid for the Republican presidential nomination. His political experience and connections were not unmixed blessings, however, because his deeply felt commitment to equal rights for black Americans was often at odds with majority public sentiment. Also, at times an aloof and formal personal manner blunted his effectiveness as a conciliator. Still, it is questionable whether a less-experienced chief justice could have maneuvered the Court successfully through the politically charged postwar climate.

The dominant issues before the Court during Chase's tenure concerned the scope of national power. Many of the cases, though not all, addressed the constitutionality of wartime and Reconstruction measures. At first—and on an issue that arose from prewar actions—the Court proceeded quietly, extending legal doctrines from the Taney era that upheld national power, while in the process creating doctrines that increased options for the justices. The pivotal case involved bond litigation from Iowa. In Gelpcke v. Dubuque (1863), the Court greatly expanded its review power over state court judgments by requiring Iowa to honor municipal bonds that the Iowa Supreme Court had held to be invalid. The decision was popular with creditors. When combined with the Taney Court's ruling in Swift v. Tyson (1842), it allowed federal courts through the 1930s to oversee municipal debts, contracts, and tort liability, among other matters. For Chase, the case sustained the nation's authority in terms reminiscent of his predecessor's views, especially later when the chief justice joined the majority in upholding Taney's innovative use of the Court's mandamus power to compel Iowa's compliance with its decision. It also justified federal judicial restraints on state excesses, an issue that arose often during Reconstruction.

Other actions from 1864 and 1865 reveal the chief justice and his colleagues working in less-visible ways to restore the Court's credibility and to reassert its independence. One of Chase's first acts as chief was to admit a black attorney, John S. Rock of Massachusetts, into practice, the first so honored. Although not predictive of the Court's halting decisions on civil rights, the symbolism of an African American at work where the Dred Scott decision had been issued less than a decade earlier was a powerful restorative of public confidence. In another gesture, Chase ordered the clerk to list West Virginia as a state on the Court's docket, thereby confirming Lincoln's recognition of its wartime separation from Confederate Virginia. A more substantive action was Chase's brief opinion denying Supreme Court jurisdiction of appeals assigned to it by an 1855 statute establishing a federal court of appeals. The decision was only the fourth time that the Court had invalidated a federal law or a portion of it, and it foreshadowed the Court's later vigorous use of judicial review, yet avoided a confrontation with either Congress or the president.

The Court in 1866 and 1867 decided against congressional and state laws in three cases that directly involved Reconstruction, but not always with the full support of its chief. The first such case was Ex parte Milligan (1866), testing the constitutionality of an 1864 military trial and death sentence for an Indiana man convicted of disloyal activities in a state where civilian courts remained open. The justices held unanimously that the military had not followed the requirements of the 1863 Habeas Corpus Act requiring it to report civilian prisoners to the local federal district court. But Chase and three justices differed from the majority on the basic point of whether the judiciary could decide when a crisis justified the use of military courts. To the chief justice, this issue, like Reconstruction policy generally, was political, not legal; it was for Congress and the president to decide, not the courts.

The adverse implications of this decision for Reconstruction became clear a few months later in early 1867 with the Test Oath Cases (Ex parte Garland; Cummings v. Missouri). The justices concluded, 5–4, that the congressional and state loyalty oaths required of southern activists and sympathizers violated the Constitution's ban on ex post facto laws and bills of attainder. Chase joined in Miller's dissent. Although later calling the state oath “detestable,” Chase explained in an 1870 letter that he believed it safer not to interfere with a state's right to regulate its internal concerns. The chief justice was able to reconcile his support of radical Reconstruction with his advocacy of “freedom national,” the belief that the Constitution protected liberty for all citizens against state restraints. In this instance, the state had withheld the privileges of full civil participation from individuals who acted willfully against its interests. Chase was also concerned that the Test Oath Cases, when combined with Milligan, sharply diminished the ability of federal and state governments to prevent former rebels from controlling the governments of the reconstructed states.

Chase's support of congressional policies on Reconstruction stemmed from his belief, shared by the Radical Republicans, that the war had changed the American constitutional system. Nowhere was this change more evident than in the 1865 adoption of the Thirteenth Amendment. Although subsequent interpretations restricted its meaning to the elimination of slavery, Chase took a much broader interpretation in the circuit court case In re Turner (1867), when he upheld the Civil Rights Act of 1866 under the Thirteenth Amendment in the course of striking down an apprenticeship law for blacks. He clearly viewed the amendment as the triumph of the abolitionists' broader goal to nationalize the right to freedom. And the amendment also required Congress to enforce this open-ended right, which Chase defined in terms of the Declaration of Independence and Bill of Rights, a definition that suggested the equality of all citizens. Finally, it kept open, perhaps required, the possibility of black suffrage. The vote, Chase believed, gave all men, black and white, the ability to protect their and their neighbors' welfare.

In the Milligan and Test Oath Cases, the chief justice had balanced his support of congressional reconstruction with his desire to maintain the Court's independence as a coequal branch of government. Rather than challenge Congress, as a majority of his colleagues appeared ready to do—a challenge the Court was sure to lose—Chase argued that reconstructing the Union was a political rather than a judicial process. This pragmatic stance allowed the Court to avoid confrontation while preserving its authority to address future Reconstruction legislation.

Chase's success in winning support for this position can be seen in subsequent Reconstruction cases. In two 1867 decisions, Mississippi v. Johnson and Georgia v. Stanton, the chief justice led a unanimous Court in refusing to accept jurisdiction or rule on the constitutionality of the Reconstruction Acts of March 1867 establishing military governments in the former Confederate states. Chase, invoking the separation of powers principle in his opinion, recognized the impracticality of issuing an injunction against the president. More important, he wisely kept the Court from using a dubious opportunity to declare the Reconstruction Acts unconstitutional, which isolated it from the brewing conflict between the president and Congress over who would set the terms of Reconstruction.

The same pragmatic assessment of political realities governed the Court's action in subsequent Reconstruction cases during Chase's tenure. In Ex parte McCardle (1868), which occurred during and shortly after the impeachment of President Andrew Johnson, a Mississippi editor convicted of writing incendiary articles about Reconstruction questioned the authority of the Congress to establish military tribunals to try civilians. When Chase, speaking for the Court, concluded that it could hear McCardle's habeas corpus petition under an 1867 statute, Congress changed the law to prevent the justices from considering this challenge to its authority. A year later the justices unanimously dismissed McCardle's suit, although Chase's opinion emphasized the Court's general power of review.

As the Court considered these cases, Chase faced a different challenge, one that ultimately separated him from many of his former abolitionist colleagues. The House of Representatives impeached President Johnson for violating the Tenure of Office Act, a measure requiring the Senate to approve dismissals of any executive appointee it had confirmed. Chase, as chief justice, was the presiding officer at the trial in the Senate. For some time, Chase had been moving away from positions held by congressional radicals who wanted to use military government to ensure the proper reconstruction of southern states. Early in 1867 he questioned the legitimacy of continued military rule and refused to sit with the circuit court wherever military rule existed. By the summer of that year he openly advocated a less harsh policy toward the South. Although the Court under his leadership had avoided a direct confrontation with Congress, the McCardle case suggested that differences could not be submerged indefinitely.

Chase prepared diligently for his role as presiding judge, carefully studying the history and law of impeachment. He insisted that the Senate follow court rules and clashed frequently with a prosecution that often proceeded on political grounds. Twice overruled on important evidentiary matters, Chase nevertheless won much sympathy and support for his efforts to require the Senate to conduct itself as a judicial rather than a legislative body. The trial had another effect on the chief justice: it led to his decision to break with his fellow Republicans. After 1868, when he unsuccessfully pursued the Democratic presidential nomination, Chase was much less involved in partisan matters, even though his political interests and ambitions did not wane.

After McCardle, the Test Oath Cases, and the impeachment trial, Reconstruction issues faded from the Court's docket, at least for the remainder of Chase's tenure. A major exception was Texas v. White (1869), in which the reconstructed state government tried to recover bonds sold by the Confederate government to pay for the war effort. For the majority, Chase endorsed the theory of congressional reconstruction as expressed in the Reconstruction Acts of 1867, that the Constitution had created a nation, even as it had invested certain powers in the states: “The Constitution, in all its provisions,” he wrote, “looks to an indestructible Union, composed of indestructible states.” The rebellious states had forfeited their rights. Congress, under its constitutional power to guarantee republican governments, had the power to set the terms for their reentry to the Union. Significantly, Chase pointedly avoided ruling on the constitutionality of the Military Reconstruction Acts, following the Court's previous stance that reconstruction was a political question, not a judicial one.

Late in 1869 the Supreme Court faced another wartime issue, the constitutionality of the Legal Tender Act of 1862, in Hepburn v. Griswold, decided in February 1870. The act, which Chase had supported as a necessary expedient during his days at Treasury, had created a government-issued paper currency, “greenbacks,” to finance the war effort. This inflationary currency also could be used to retire debts incurred before 1862, even if the original contract called for repayment in specie, or gold and silver. The justices divided sharply over the case, with Chase leading a 5–4 majority in declaring the act unconstitutional as it applied to contracts made before the measure became law. The decision was highly controversial. Republicans bitterly condemned Chase for reversing his earlier position, and Democrats generally applauded. Critics especially feared that the Court would extend its ruling to contracts made subsequent to the 1862 law, thus disrupting financial markets.

The controversy heightened when President Ulysses S. Grant appointed two new justices, William Strong and Joseph P. Bradley, both assumed to oppose the Hepburn decision, and the attorney general moved for a reconsideration of the case. The motion created a bitter dispute among the justices, with Chase pitted against Miller, the leader of the minority in the earlier case. Chase made every effort to keep the case from being reopened, but lost. A new 5–4 majority in the Legal Tender Cases (1871) held that the notes were valid for repayment of both prior and subsequent debts.

Chase's failing health—he suffered a series of strokes in 1870—limited his activities on the bench for the remainder of his term. Although his condition improved during 1872, he was never able to write effectively, his speech remained partially slurred, and his ability to lead the Court waned markedly. He closed his career by joining the dissent in the Slaughterhouse Cases (1873), announced three weeks before his death. His role was minor; he offered no separate opinion. But the case, which limited the scope of the Fourteenth Amendment and restricted the ability of the federal government to protect citizens against the states, offered the chief justice one last chance to reaffirm his belief in equal rights for blacks, a principle that he had promoted throughout his public life.

Chase was a worthy heir to the legacy of his pre-decessors, Marshall and Taney. The Court under his leadership substantially increased its jurisdiction, influence, and reputation. Chase helped the Court invigorate and extend judicial review, even though at times the justices appeared to differ with Congress over policy, not constitutionality, a result that foreshadowed the actions of subsequent Courts. Under Chase, the Court's Reconstruction decisions—or, more often, its nondecisions—placed the justices squarely in the middle of national politics. But the chief justice led his colleagues to exercise their newfound authority with discretion and always with a pragmatic and essentially conservative view to what was possible. This, indeed, was his greatest achievement and his greatest legacy as a jurist: he skillfully guided the Supreme Court through the trying years of Reconstruction to reclaim its place as a coequal branch of the federal government.

Bibliography

Important manuscript collections for Salmon Chase can be found at the Library of Congress and the Historical Society of Pennsylvania. Edward G. Bourne et al., eds., “Diary and Correspondence of Salmon P. Chase,” Annual Report of the American Historical Association, vol. 2 (1902), offers a valuable collection of several hundred Chase letters over his entire career. The best recent study is John Niven, Salmon P. Chase: A Biography (1995).

Charles Fairman, History of the Supreme Court of the United States, vol. 6, Reconstruction and Reunion, 1864–1888, part 1 (1971), provides an exhaustive but balanced treatment of the Supreme Court during Chase's tenure as chief justice. Harold M. Hyman and William M. Wiecek, Equal Justice Under Law, Constitutional Development, 1835–1875 (1982), constitutes a critical yet sympathetic analysis of Chase's role in Reconstruction issues, tying the Chase Court to the Taney Court, which preceded it, and the Waite Court, which followed. See also the various articles in the “Symposium on Salmon P. Chase and the Chase Court,” Northern Kentucky Law Review 21 (Fall 1993).

In regard to postwar issues, see also David F. Hughes, “Salmon P. Chase: Chief Justice,” Vanderbilt Law Review 18 (1965): 569, a careful portrait of Chase's leadership of the Court on the most important Reconstruction questions. Stanley I. Kutler, in Judicial Power and Reconstruction Politics (1968), convincingly argues that the Chase Court reasserted judicial independence during Reconstruction.

Noteworthy Opinions

Ex parte Milligan, 71 U.S. 2 (1866) (Concurrence)

Cummings v. Missouri, 71 U.S. 277 (1867)

Ex parte Garland, 71 U.S. 333 (1867)

Mississippi v. Johnson, 71 U.S. 475 (1867)

Ex parte McCardle, 73 U.S. 318 (1868); 74 U.S. 506 (1869)

Texas v. White, 74 U.S. 700 (1869)

Hepburn v. Griswold, 75 U.S. 603 (1870)

 

Document Citation
Chase, Salmon Portland, in Biographical Encyclopedia of the Supreme Court 125 (Melvin I. Urofsky ed., 2006), http://library.cqpress.com/scc/bioenc-427-18166-979138.
Document ID: bioenc-427-18166-979138
Document URL: http://library.cqpress.com/scc/bioenc-427-18166-979138