In
all his Supreme Court appointments Lincoln was cautious to appoint men
to the Court who were fully sympathetic with the measures his
administration devised to win the war, and who gave no indication that
they would oppose the policies, often clearly unconstitutional, which
Lincoln considered necessary.
Bernhard Thuersam, Chairman
North Carolina War Between the States Sesquicentennial Commission
"The Official Website of the North Carolina WBTS Sesquicentennial"
The Supreme Court Removed as a Factor
“The
[Lincoln] administration would await no debacle, no breath-taking
defeat at the hands of the Supreme Court. It could ill-afford such a
calamity. It would move to make such a defeat less likely [and] it would
be folly to permit Supreme Court decisions to add to the travail.
President
Lincoln and the Republicans were now to decide, concerning the size of
the Supreme Court, that the number “ten” was much more convenient than
the number “nine.” Under the leadership of Representative James F.
Wilson the committee on the judiciary reported to the house a bill to
create a tenth circuit . . . [meaning] a tenth Justice. It was prudence
that dictated a packed Court in order to strengthen the position of
those Justices who would view with favor the acts that the
administration deemed necessary.
Admittedly
this was a moderate packing of the Court, but the tenth Justice in
addition to the three other Lincoln appointees and other friendly
Justices on the bench would provide an adequate margin of safety. So it
was in the same days that the Prize Cases were being considered by the
Court that Congress went about the task of creating . . . a tenth
Justice. The Court could not fail to see the implications.
To
pack it just at this time was a sharp warning that its size, its
powers, and its role rested upon the will of the Congress and the
President. There was no delay [in the appointment]. The Senate, deeming
that swift action was necessary, passed the bill the same day that it
took up consideration of it.
Keep[ing]
the power of the Court “right.” That was the strongest motivation for
adding a tenth justice . . . during the Civil War. Senator Garrett Davis
of Kentucky stated on the floor of the Senate on January 14, 1868, that
the Radicals forced the creation of the tenth justiceship.
The
power of the government to defend itself would be questioned again
before the Supreme Court, and a tenth Justice would at least make
certain “that questions of the power of government to suppress
rebellion would not come before a Court too hopelessly weighted on the
side of the old-line Democratic view of public policy.” The Supreme
Court had to be removed as a factor potentially dangerous to the Union.
A Congress and a President that had experience the debacles of 1862
would not stand idly by to experience disaster at the hands of the
Supreme Court.”
(Lincoln’s Supreme Court, David M. Silver, University of Illinois Press, 1998, pp. 84-88)
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