{"id":41536,"date":"2020-10-17T09:00:37","date_gmt":"2020-10-17T16:00:37","guid":{"rendered":"https:\/\/www.politicsplus.org\/blog\/?p=41536"},"modified":"2020-10-17T05:13:14","modified_gmt":"2020-10-17T12:13:14","slug":"everyday-erinyes-236","status":"publish","type":"post","link":"https:\/\/www.politicsplus.org\/blog\/2020\/10\/17\/everyday-erinyes-236\/","title":{"rendered":"Everyday Erinyes #236"},"content":{"rendered":"

Experts in autocracies have pointed out that it is, unfortunately, easy to slip into normalizing the tyrant, hence it is important to hang on to outrage. These incidents which seem to call for the efforts of the Greek Furies (Erinyes) to come and deal with them will, I hope, help with that. As a reminder, though no one really knows how many there were supposed to be, the three names we have are Alecto<\/span><\/strong>, Megaera<\/strong><\/span>, and Tisiphone<\/span><\/strong>. These roughly translate as “unceasing,” “grudging,” and “vengeful destruction.”<\/p>\n

It’s no secret and should be no surprise to anyone here that I don’y think we should be talking about “packing the court” but rather about “UNpacking the court,” and I’m glad and grateful that Senator Schumer and Speaker Pelosi are heading toward phrasing it this way (“packing the courts is something Republicans do” – Speaker Pelosi.) So I’m not crazy about this title. But the content here is highly educational, and definitely thought provoking.
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Packing the Court: Amid national crises, Lincoln and his Republicans remade the Supreme Court to fit their agenda<\/h1>\n
The 9-member Chase Court in 1867, dominated by Northern Republicans.
\nAlexander Gardner\/The U.S. Supreme Court<\/a><\/span><\/figcaption><\/figure>\n

Calvin Schermerhorn<\/a>, Arizona State University<\/a><\/em><\/p>\n

As a political battle over the Supreme Court\u2019s direction rages in Washington with President Donald Trump\u2019s nomination of Amy Coney Barrett, history shows that political contests over the ideological slant of the Court are nothing new.<\/p>\n

In the 1860s, President Abraham Lincoln worked with fellow Republicans to shape the Court to carry out his party\u2019s anti-slavery and pro-Union agenda. It was an age in which the court was unabashedly a \u201cpartisan creature<\/a>,\u201d in historian Rachel Shelden\u2019s words.<\/p>\n

Justice John Catron had advised Democrat James K. Polk\u2019s 1844 presidential campaign, and Justice John McLean was a serial presidential contender in a black robe. And in the 1860s, Republican leaders would change the number of justices and the political balance of the Court to ensure their party\u2019s dominance of its direction.<\/p>\n

Overhauling the Court<\/h2>\n

When Lincoln became president in 1861, seven Southern states had already seceded from the Union<\/a>, yet half of the Supreme Court justices were Southerners, including Chief Justice Roger B. Taney of Maryland. One other Southern member had died in 1860, without replacement. All were Democratic appointees.<\/p>\n

The Court was \u201cthe last stronghold of Southern power<\/a>,\u201d according to one Northern editor. Five sitting justices were among the court\u2019s 7-2 majority in the racist 1857 Dred Scott v. Sandford ruling, in which Taney wrote<\/a> that Black people were \u201cso far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit.\u201d<\/p>\n

Some Republicans declared<\/a> it \u201cthe duty of the Republican Party to reorganize the Federal Court and reverse that decision, which \u2026 disgraces the judicial department of the Federal Government.\u201d<\/p>\n

After Lincoln called in April, 1861 for 75,000 volunteers to put down the Southern rebellion, four more states seceded. So did Justice John Archibald Campbell of Georgia, who resigned on April 30.<\/p>\n

Chief Justice Taney helped the Confederacy when he tried to restrain<\/a> the president\u2019s power. In May 1861, he issued a writ of habeas corpus in Ex Parte Merryman<\/a> declaring that the president couldn\u2019t arbitrarily detain citizens suspected of aiding the Confederacy. Lincoln ignored the ruling.<\/p>\n

\"Chief
Chief Justice Roger Taney tried to limit Lincoln\u2019s powers in the Civil War.<\/span>
\nLibrary of Congress Prints and Photographs Division<\/a><\/span><\/figcaption><\/figure>\n

Remaking the Court<\/h2>\n

To counter the court\u2019s southern bloc, Republican leaders used judicial appointments to protect the president\u2019s power to fight the Civil War. The Lincoln administration was also looking ahead to Reconstruction and a governing Republican majority.<\/p>\n

Nine months into his term, Lincoln declared<\/a> that \u201cthe country generally has outgrown our present judicial system,\u201d which since 1837 had comprised nine federal court jurisdictions, or \u201ccircuits.\u201d Supreme Court justices rode the circuit<\/a>, presiding over those federal courts.<\/p>\n

Republicans passed the Judiciary Act of 1862, overhauling the federal court system by collapsing federal circuits<\/a> in the South from five to three while expanding circuits in the North from four to six. The old ninth circuit, for example, included just Arkansas and Mississippi. The new ninth included Missouri, Kansas, Iowa and Minnesota instead. Arkansas became part of the sixth, and Mississippi, the fifth.<\/p>\n

In 1862, after Campbell\u2019s resignation and McLean\u2019s death, Lincoln filled three open Supreme Court seats with loyal Republicans Noah H. Swayne<\/a> of Ohio, Samuel Freeman Miller of Iowa<\/a> and David Davis of Illinois<\/a>. The high court now had three Republicans and three Southerners.<\/p>\n

The 1863 Prize cases<\/a> tested whether Republicans had managed to secure a friendly court. At issue was whether the Union could seize American ships sailing into blockaded Confederate ports. In a 5-4 ruling, the high court \u2013 including all three Lincoln appointees \u2013 said yes.<\/p>\n

Congressional Republicans spied a way to expand the court while solving what amounted to a geopolitical judicial problem. In 1863, Congress created a new tenth circuit by adding Oregon<\/a>, which had become a state in 1859, to California\u2019s circuit. The Tenth Circuit Act also added a tenth Supreme Court justice. Lincoln elevated pro-Union Democrat Stephen Field<\/a> to that seat.<\/p>\n

And after Chief Justice Taney died in 1864, Lincoln selected his political rival, Treasury Secretary Salmon P. Chase<\/a>, an architect of national monetary policy, to replace him. With Chase, Lincoln succeeded in creating a pro-administration high court.<\/p>\n

Unpacking the Court<\/h2>\n

After Lincoln\u2019s assassination in April 1865, President Andrew Johnson of Tennessee<\/a>, who succeeded him, soon began undoing Lincoln\u2019s achievements. He was a Unionist Democrat given the vice presidency as an olive branch to the South. He rewarded that gesture in part by pardoning rank and file Confederates. Johnson also opposed civil rights for newly-freed African Americans.<\/p>\n

He also threatened to appoint like-minded judges. But the Republican-dominated Congress blocked Johnson from elevating unreconstructed Rebels to the high court. The Judicial Circuits Act of 1866<\/a> shrank the number of federal circuits to seven and held that no Supreme Court vacancies would be filled until just seven justices remained.<\/p>\n

The Philadelphia Evening Telegraph\u2019s Democratic editor sighed<\/a> that at least Republicans \u201ccannot pack the Supreme Court at this moment.\u201d<\/p>\n

\"Noah<\/a>
Lincoln appointed three<\/strong> Republicans to the Court in 1862, including then-Judge Noah H. Swayne.<\/span>
\nLibrary of Congress Brady-Handy Collection<\/a><\/span><\/figcaption><\/figure>\n

Courting paper money<\/h2>\n

Republicans refused to consider nominating Johnson in 1868, picking General Ulysses S. Grant instead. He won, and after President Grant\u2019s inauguration, Congress passed the Circuit Judges Act of 1869<\/a>, raising back to nine the number of Supreme Court justices.<\/p>\n

Shortly after, Republicans faced a financial problem of their own making.<\/p>\n

Beginning in 1862, Congress had passed three Legal Tender Acts<\/a> \u2013 initially to help finance the war, authorizing debt payments using paper money not backed by gold or silver. Then-Treasury Secretary and current Chief Justice Salmon P. Chase had crafted the legislation.<\/p>\n

But in an 1870 case, Hepburn v. Griswold<\/a>, Chase reversed himself in a 4-3 decision, ruling the Legal Tender Acts unconstitutional. That threatened national monetary policy and Republicans\u2019 cozy relationship with industries reliant on government sponsorship.<\/p>\n

President Grant, preparing for Chase\u2019s ruling, was already working on a political solution. On the day of the Hepburn decision, he appointed two pro-paper-money Supreme Court nominees, William Strong of Pennsylvania<\/a> and Joseph P. Bradley of New York.<\/a> Comparing the Republican administration to \u201ca brokerage office,\u201d a Democratic newspaper howled that<\/a> \u201cthe attempt to pack the supreme court to secure a desired judicial decision \u2026 (has) brought shame and humiliation to an entire people.\u201d<\/p>\n

It also brought a Republican majority to the high court for the first time.<\/p>\n

Chief Justice Chase opposed revisiting the paper money issue. But the Supreme Court about-faced, ruling 5-4 in the 1871 cases Knox v. Lee and Parker v. Davis<\/a> that the government could indeed print paper money to pay debts. Chase died in 1873, and his successor Morrison Waite<\/a> championed the Republican pro-business agenda.<\/p>\n

Careful what you wish for<\/h2>\n

Republican transformation of the federal judiciary in the 1860s and 1870s served the party well in the Civil War and constructed a legal framework for a modernizing industrial economy.<\/p>\n

[Deep knowledge, daily.<\/em> Sign up for The Conversation\u2019s newsletter<\/a>.]<\/p>\n

But in the end Lincoln and Grant\u2019s high court appointments ended up being disastrous for civil rights. Justices Bradley, Miller, Strong and Waite tended to constrain civil rights protections like the Fourteenth Amendment, which guarantees equal protection of laws. Their rulings in United States v. Cruikshank<\/a> in 1876 and Civil Rights Cases<\/a> in 1883 both sounded the retreat on Black civil rights<\/a>.<\/p>\n

In remaking the court in Republicans\u2019 image, the party got what it wanted \u2013 but not what was needed to fulfill the promise of \u201ca new birth of freedom<\/a>.\u201d\"The<\/p>\n

Calvin Schermerhorn<\/a>, Professor of History, Arizona State University<\/a><\/em><\/p>\n

This article is republished from The Conversation<\/a> under a Creative Commons license. Read the original article<\/a>.<\/p>\n

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\nAlecto<\/span><\/strong>, Megaera<\/strong><\/span>, and Tisiphone<\/span><\/strong>, of course our issue at this point is not merely the Supreme Court, but all the lower federal coourts as well. There have been some mighty unqualified people pushed into positions where they have no business. At any level, I definitely would not, myself, put impeachment off the table. At SCOTUS, I believe we have two justices now (and will have three soon barring a miracle) who have pretty demonstrably lied at their confirmation hearings (and as much as I dislike him, Gorsuch is not one of them.) For obvious reasons, I’m not that conversant of the other benches, but that doesn’t mean there aren’t unqualified and vulnerable people there. In fact, there certainly are. I hope you ladies are willing to help find them and get them out to the maximum extent possible.<\/p>\n

The Furies and I will be back.<\/p>\n","protected":false},"excerpt":{"rendered":"

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