Westward expansion, preappointment politics, and the making of the Southern slaveholding Supreme Court

Studies in American Political Development

Volumn 24, Issue 1, 2010, Pages 90-120

  Crowe, Justin ^a  

^a WILLIAMS COLLEGE   (United States)

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EID: 77958609037     PISSN: 0898588X     EISSN: 14698692     Source Type: Journal    
DOI: 10.1017/S0898588X09990101     Document Type: Article

References (337)

1. Of recent academic vintage, see Henry J. Abraham, Justices, Presidents, and Senators: A History of U.S. Supreme Court Appointments from Washington to Bush II, 5th ed. (Lanham, MD: Rowman and Littlefield, 2008);
2. Michael Comiskey, Seeking Justices: The Judging of Supreme Court Nominees (Lawrence,: University Press of Kansas, 2004);
3. Richard Davis, Electing Justice: Fixing the Supreme Court Nomination Process (Oxford: Oxford University Press, 2005);
4. Christopher L. Eisgruber, The Next Justice: Repairing the Supreme Court Appointments Process (Princeton, NJ: Princeton University Press, 2007);
5. Christine L. Nemacheck, Strategic Selection: Presidential Nomination of Supreme Court Justices from Herbert Hoover through George W. Bush (Charlottesville: University of Virginia Press, 2007);
6. Mark Silverstein, Judicious Choices: The Politics of Supreme Court Confirmations, 2nd ed. (New York: W.W. Norton, 2007);
7. David Alistair Yalof, Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees (Chicago, IL: University of Chicago Press, 1999).
8. Yalof, Pursuit of Justices, viii, emphasizes that the appointment process is about more than simply confirmation, that it actually involves "a seamless web" of both nomination and confirmation. I agree that the process is about more than simply confirmation but contend that, at least in certain cases, it has a third stage as well, one that is temporally prior to both nomination and confirmation.
9. While I recognize that this phenomenon might also include the politics surrounding justices' retirement decisions (which are obviously only preappointment politics in the sense that they precede subsequent appointments), my focus here is elsewhere, not least since the retirement question- particularly as it relates to "strategic departures"-has already been the focus of much work. See, for example, David N. Atkinson, Leaving the Bench: Supreme Court Justices at the End (Lawrence: University Press of Kansas, 1999);
10. James F. Spriggs II and Paul J. Wahlbeck, "Calling It Quits: Strategic Retirement on the Federal Courts of Appeals, 1893-1991," Political Research Quarterly 48 (1995): 573-97;
11. Peverill Squire, "Politics and Personal Factors in Retirement from the United States Supreme Court," Political Behavior 10 (1998): 180- 90;
12. Artemus Ward, Deciding to Leave: The Politics of Retirement from the Supreme Court (Albany: State University of New York Press, 2003).
13. On the general subject, see, among others, Howard Gillman, "How Political Parties Can Use the Courts to Advance Their Agendas: Federal Courts in the United States, 1875-1891," American Political Science Review 96 (2002): 511-24;
14. Howard Gillman, "Party Politics and Constitutional Change: The Political Origins of Liberal Judicial Activism," in The Supreme Court and American Political Development, eds. Ronald Kahn and Ken I. Kersch (Lawrence: University Press of Kansas, 2006), 138-68;
15. Mark A. Graber, "The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary," Studies in American Political Development 7 (1993): 35-73, 46-50;
16. Mark A. Graber, "Federalist or Friends of Adams: The Marshall Court and Party Politics," Studies in American Political Development 12 (1998): 229-66;
17. Keith E. Whittington, "Presidential Challenges to Judicial Supremacy and the Politics of Constitutional Meaning," Polity 33 (2001): 365-95;
18. Keith E. Whittington, "'Interpose Your Friendly Hand': Political Supports for the Exercise of Judicial Review by the United States Supreme Court," American Political Science Review 96 (2005): 583-96;
19. Keith E. Whittington, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (Princeton, NJ: Princeton University Press, 2007).
20. But see Justin Crowe, "The Forging of Judicial Autonomy: Political Entrepreneurship and the Reforms of William Howard Taft," The Journal of Politics 69 (2007): 73-87.
21. 41 U.S. 539 (1842) (nullifying a state "personal liberty law" as in conflict with the federal Fugitive Slave Act of 1793).
22. 60 U.S. 393 (1857) (declaring that no descendant of a slave could ever be a citizen and striking down the Missouri Compromise as beyond congressional authority to regulate the territories).
23. 62 U.S. 506 (1859) (denying the right of state courts to obstruct enforcement of federal judicial business, including that pursuant to the Fugitive Slave Act of 1850).
24. I do not mean to imply that antebellum judicial power was politically constructed such that the Court became wholly pro-slavery, only that it was done so in a manner that effectively guaranteed that the Court would be majority pro-slavery.
25. To avoid confusion, I should note thatmy primary aim here is to explain institutional changes rather than jurisprudential ones.
26. For political histories focusing on various aspects of the period, see Sean Wilentz, The Rise of American Democracy: Jefferson to Lincoln (New York: W.W. Norton & Company, 2005) (on the consolidation of democratic norms and practices);
27. Charles Sellers, The Market Revolution (New York: Oxford University Press, 1991) (on the development of a capitalist economy);
28. WilliamW. Freehling, Road to Disunion: Volume I-Secessionists at Bay, 1776 - 1854 (New York: Oxford University Press, 1990) (on slavery, the South, and the seeds of secession);
29. Merrill D. Peterson, The Great Triumvirate: Webster, Clay, and Calhoun (New York: Oxford University Press, 1987) (on three influential legislators and regional leaders);
30. Michael F. Holt, The Rise and Fall of the American Whig Party: Jacksonian Politics and the Onset of the Civil War (New York: Oxford University Press, 1999) (on party politics and the development of an anti-Jacksonian coalition).
31. For the previous generation of historical scholarship on this period, see George Dangerfield, The Era of Good Feelings (New York: Harcourt, Brace and Company, 1952);
32. George Dangerfield, The Awakening of American Nationalism, 1815-1828 (New York: Harper & Row, 1965);
33. Arthur M. Schlesinger, Jr., The Age of Jackson (Boston: Little, Brown and Company, 1945).
34. The following states were admitted in this period: Louisiana (1812), Indiana (1816), Mississippi (1817), Illinois (1818), Alabama (1819), Maine (1820), Missouri (1821), Arkansas (1836), Michigan (1837), Florida (1845), Texas (1845), Iowa (1846), and Wisconsin (1848)
35. "Circuit-riding" was the practice of having Supreme Court justices join district court judges in hearing circuit court cases. A function of the fact that the landmark Judiciary Act of 1789 had established three tiers of courts but provided for only two sets of judges, this arrangement, which required arduous and timeconsuming travel and placed justices in the uncomfortable position of being forced to hear appeals of their own decisions, was an unremitting source of judicial aggravation from its establishment in the early republic through its effective abolition in the Gilded Age.
36. Although the Judiciary Acts of both 1801 and 1802 organized the federal judiciary into six circuits, the two acts differed in the precise arrangement of those circuits. Under both acts, two circuits (First and Second) were allotted to New England states and two (Third and Fourth) to mid-Atlantic states, but where the 1801 act provided for one Southern circuit (Fifth) and one Western circuit (Sixth), the 1802 act provided for two Southern circuits (Fifth and Sixth). The 1802 act accomplished this by shifting Delaware from the Third Circuit to the Fourth, Virginia from the Fourth to the Fifth, and South Carolina and Georgia from the Fifth to the Sixth. The 1802 act also excluded Maine, which was then still part of Massachusetts but had nonetheless been included in the First Circuit (along with New Hampshire, Massachusetts, and Rhode Island) by the 1801 act, from the system.
37. Courts of this type would prove common through the beginning of the Civil War, largely for territories that had district courts but had yet to be incorporated into the circuit system. See Erwin C. Surrency, History of the Federal Courts (Dobbs Ferry, NY: Oceana Publications, 2002), 36.
38. 2 Stat. 420 (February 24, 1807).
39. 16 Annals of Cong. 46 (1807).
40. Federalists had suffered a consistent and precipitous fall in popularity since 1800, but the Ninth Congress (1805-1807) represented the largest Democrat-Republican majority to that point-twenty seats in the Senate (27-7) and eighty-six seats in the House (114-28). The incoming Tenth Congress (1807- 1809) marked a slight increase to twenty-two seats in the Senate (28-6) and ninety seats in the House (116-26). On the Federalist Party after the "Revolution of 1800," see David Hackett Fischer, The Revolution in American Conservatism: The Federalist Party in the Era of Jeffersonian Democracy (New York: Harper & Row, 1965);
41. Shaw Livermore, Jr., The Twilight of Federalism: The Disintegration of the Federalist Party, 1815-1830 (Princeton, NJ: Princeton University Press, 1962).
42. 16 Annals of Cong. 46 (1807).
43. 16 Annals of Cong. 499 (1807). Fifty-three members of the House-more than one-third of the entire chamber-did not vote on the bill. Of the seven nay votes, five (James M. Garnett, David Meriwether, John Randolph, Richard Stanford, David R. Williams) were Democrat-Republicans from the South, one (Joseph Stanton) was a Democrat-Republican from Rhode Island, and one (Benjamin Tallmadge) was a Federalist from Connecticut.
44. Between 1789, when the circuit system was established, and 1807, three states-original colonies North Carolina and Rhode Island (which had delayed ratifying the Constitution) as well as Vermont (which was carved out of existing portions of New York and New Hampshire)-had joined the Union, but, perhaps because they were each part of the original American landmass and geographically surrounded by states already included in a circuit, all three were immediately incorporated into the circuit system. 1 Stat. 126 (June 4, 1790) (North Carolina);
45. 1 Stat. 128 (June 23, 1790) (Rhode Island);
46. 1 Stat. 197 (March 3, 1791) (Vermont).
47. See Felix Frankfurter and James M. Landis, The Business of the Supreme Court: A Study in the Federal Judicial System (New York: Macmillan, 1928), 34: "Thus began the periodic increase in the membership of the Supreme Court as the territorial needs of the country for more circuits were met."
48. 1 Stat. 333 (March 2, 1793).
49. Explaining this feature, Frankfurter and Landis, The Business of the Supreme Court, 34 n94, write that the "necessity of bringing into the Supreme Court a member familiar with the land law of the Western states was keenly felt."
50. 2 Stat. 244 (March 3, 1803).
51. It is not even clear that Congress possessed the constitutional authority to do so. After all, since the Constitution does clearly forbid individuals "who shall not, when elected, be an Inhabitant of that State in which he shall be chosen" from serving in either the House (Article I, Section 2) or the Senate (Article I, Section 3), one might reasonably interpret the absence of such qualifications for Supreme Court justices to suggest not only that no such qualifications existed but also that none could be added except through a constitutional amendment.
52. Indeed, histories of the appointment process suggest that, for every vacancy in the first half of the nineteenth century, presidents considered themselves sufficiently bound by this expectation that they only even considered appointing individuals from the geographically appropriate region. See, in passim, Abraham, Justices, Presidents, and Senators;
53. Charles Warren, The Supreme Court in United States History, Volume One, 1789 - 1835 (Boston: Little, Brown and Company, 1926);
54. Charles Warren, The Supreme Court in United States History, Volume Two, 1836-1918 (Boston: Little, Brown and Company, 1926).
55. Within a month of admission to the Union in 1820, Maine was immediately made part of the First Circuit. 3 Stat. 554 (March 30, 1820).
56. 3 Stat. 390 (March 3, 1817) (Indiana);
57. 3 Stat. 413 (April 3, 1818) (Mississippi);
58. 3 Stat. 502 (March 3, 1819) (Illinois);
59. 3 Stat. 564 (April 21, 1820) (Alabama);
60. 3 Stat. 653 (March 16, 1822) (Missouri).
61. Cf. Frankfurter and Landis, The Business of the Supreme Court, 34: "New territory brings new judicial needs coincident with a rise in the volume of judicial business in the old districts and circuits."
62. The embargo controversy (at least as it concerned the judiciary) arose when one of Jefferson's own appointments to the Court, William Johnson, declared the president's specific instructions regarding enforcement of the Embargo Act of 1808, 2 Stat. 499 (April 25, 1808), unsupported by the original statute in Ex Parte Gilchrist, 5 Hughes 1 (1808). Johnson's decision, issued while riding circuit in staunchly Jeffersonian South Carolina, sparked widespread Democrat-Republican outrage, Federalist joy, and hostile recriminations from those legislators who had expected Johnson to serve as a bulwark of Jeffersonianism on an otherwise Federalist-dominated Court. While Johnson and the Jefferson administration publicly debated the validity and force of Johnson's decision, however, Massachusetts district judge (and committed Federalist) John Davis upheld the constitutionality of Jefferson's embargo, viewed by many Federalists (especially those in New England) as the most odious of Democrat-Republican policies, with a capacious construction of congressional powers in United States v. The Brigantine William, 28 Fed Cas. 622 (1808). Although the embargo was sustained, its enforcement was severely impeded-and its effectiveness weakened-by a slate of judicial decisions dismissing indictments for obstruction and denying the force of state laws designed to aid enforcement in federal courts. These obstacles helped to prompt Democrat-Republicans to pass the Enforcement Act of 1809, 2 Stat. 506 (January 9, 1809). For a recap of the entire episode, see Warren, The Supreme Court in United States History, Volume One, 324-356
63. 10 U.S. 87 (1810) (striking down a Georgia law repealing a fraudulent land sale approved by a corrupt previous legislature as a violation of the Contracts Clause). Contrary to popular belief, Fletcher was not the first instance in which the Court struck down a state law-that distinction goes to Ware v. Hylton, 3 U.S. 199 (1796)-but the first instance in which it did so on constitutional grounds. Ware invalidated a state law because it conflicted with a federal treaty rather than a constitutional provision. The Court also considered a constitutional challenge to a state law in Calder v. Bull, 3 U.S. 386 (1798), but ultimately upheld the statute.
64. Warren, The Supreme Court in United States History, Volume One, 426-431 (referring to more than twenty cases in which the Supreme Court upheld the non-intercourse acts necessary for the conduct of "Mr. Madison's War");
65. Surrency, History of the Federal Courts, 138-139
66. 17 U.S. 316 (1819) (affirming congressional authority to establish the Bank of the United States and rejecting Maryland's contention that a state could tax an organ of the national government).
67. 17 U.S. 122 (1819) (nullifying state bankruptcy laws that retroactively applied to contracts made prior to their enactment).
68. 17 U.S. 518 (1819) (extending the protection of the Contracts Clause to a corporate charter).
69. 22 U.S. 1 (1824) (invalidating a New York steamboat licensing law as inconsistent with congressional legislation).
70. Notable exceptions include the federal judiciary denying common law jurisdiction over criminal offenses in United States v. Hudson and Goodwin, 11 U.S. 32 (1812), and United States v. Coolidge, 14 U.S. 415 (1816), as well as restricting the ability of corporations to sue in federal court in Bank of United States v. Deveaux, 9 U.S. 61 (1809).
71. 14 U.S. 304 (1816).
72. 19 U.S. 264 (1821).
73. Warren, The Supreme Court in United States History, Volume One, 449.
74. Martin originated when the Virginia legislature voided a loyalist land grant and transferred a tract of property back to the state. When the original landholder appealed, the Court, in Fairfax's Devisee v. Hunter's Lessee, 11 U.S. 603 (1813), declared that he was entitled to the land, but Virginia Court of Appeals judge Spencer Roane refused to obey the higher court's ruling. In his own defense, Roane-a close ally of Jefferson and long-time rival of Marshall-simply claimed that Section 25 was unconstitutional and that, as a result, the Supreme Court had no legitimate authority over the case at hand. Taking direct aim at the defiance by a lower court and an inferior judge, Justice Joseph Story's opinion in Martin flatly rejected Roane's claims. Not only was Section 25 constitutional, Story asserted, but, even if it did impugn state sovereignty (as Roane contended), the goal of protecting federal sovereignty and supremacy trumped. Cohens, decided five years later, entertained the issue once more, with the Court-this time through Chief Justice John Marshall, who had recused himself in Martin- again declaring that Section 25 was legitimate and that the federal courts could indeed exercise jurisdiction over state court decisions. On Marshall's tactics in Cohens, see Mark A. Graber, "The Passive-Aggressive Virtues: Cohens v. Virginia and the Problematic Establishment of Judicial Review," Constitutional Commentary 12 (1995): 67-93.
75. The Documentary History of the Supreme Court of the United States, 1789 - 1800, Volume 4-Organizing the Federal Judiciary: Legislation and Commentaries, ed. Maeva Marcus (New York: Columbia University Press, 1992), 295 [emphasis added].
76. For a summary of these occasional attempts, see Frankfurter and Landis, The Business of the Supreme Court, 35 n98. Justice Joseph Story and Daniel Webster had attempted to motivate landmark reform in 1816-with the former drafting, and the latter proposing, a bill that would have given circuit courts the "full sweep of judicial power contained in the Constitution"-but it went nowhere (36). See also Robert V. Remini, Daniel Webster: The Man and His Time (New York: W.W. Norton & Company, 1997), 213. In addition, it was during this period that Congress began what would become a century-long project of regulating the terms of federal courts, passing multiple statutes specifying the time and place of court proceedings during each legislative session. Congress had passed a handful of such statutes in the 1790s, but, as the judicial system expanded throughout the nineteenth century, they became a consistent feature of judicial reform. See, for instance, 2 Stat. 815 (March 3, 1813) (concerning the district of New York);
77. 3 Stat. 411 (March 19, 1818) (concerning the district of Virginia);
78. 4 Stat. 186 (May 20, 1826) (concerning the district of North Carolina).
79. See, for example, 2 Cong. Deb. 1142 (1826) (Daniel Webster) ("The necessity of some reform in the Judicial establishment of the country, has been presented to every Congress, and every session of Congress, since the peace of 1815.")
80. Cf. Frankfurter and Landis, The Business of the Supreme Court, 41-42, noting that the "need for judicial organization was recognized by all parties" but referring to substantial disagreement about the "methods by which judicial organization should be kept abreast of national development."
81. See Graber, "Federalist or Friends of Adams: The Marshall Court and Party Politics," 232, arguing that the importance of the Hamiltonian-Jeffersonian divide-a divide that had, in one way or another, structured American politics and society for over two decades-broke down in the 1810s, when the "American political universe disintegrated and was reconstituted." On the factionalized nature of the Democrat-Republican Party generally
82. see Richard E. Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic (New York: Oxford University Press, 1971).
83. Cf. Wilentz, The Rise of American Democracy, 181-217, examining the period as an "era of bad feelings."
84. The Rise of American Democracy, Ibid., 141-78. On the rise of the "National Republicans," see Dangerfield, The Awakening of American Nationalism;
85. Livermore, The Twilight of Federalism;
86. William Nisbet Chambers, Political Parties in a New Nation: The American Experience, 1776 - 1809 (New York: Oxford University Press, 1963), 191-208;
87. Richard Hofstadter, The Idea of a Party System: The Rise of Legitimate Opposition in the United States, 1780 - 1840 (Berkeley: University of California Press, 1969), 170-211.
88. 2 Cong. Deb. 1128 (1826) (Charles F. Mercer).
89. A similar plan, though without a reduction in the size of the Court, had passed the Senate in 1819, but the House did not act on the bill. Curtis Nettels, "The Mississippi Valley and the Federal Judiciary, 1807-1837," The Mississippi Valley Historical Review 12 (1925): 202-226
90. James Madison, Eighth Annual Message to Congress (December 3, 1816).
91. See also 1 Cong. Deb. 535 (1825) (James Barbour) (referring to the "impossibility of men, advanced in years, being able to undertake a journey of two or three thousand miles" while riding circuit);
92. 1 Cong. Deb. 534 (1825) (James Barbour) (noting that the abolition of circuit-riding would allow the justices "full time to deliberate on the important causes which necessarily came before them").
93. James Monroe, Eighth Annual Message to Congress (December 7, 1824).
94. Indeed, they promised to do what the much-maligned Federalist Judiciary Act of 1801 would have done if not repealed by Democrat-Republicans just over a year after its passage.
95. 20 Annals of Cong. 480 (1809).
96. 20 Annals of Cong. 479-480 (1809).
97. 38 Annals of Cong. 44-47 (1821).
98. 42 Annals of Cong. 2635-2648 (1824);
99. 1 Cong. Deb. 365-371 (1825);
100. 2 Cong. Deb. 1119-1149 (1826).
101. 22 Annals of Cong. 961-962 (1811);
102. 2 Cong. Deb. 1119-1149 (1826).
103. David P. Currie, The Constitution in Congress: The Jeffersonians, 1801-1829 (Chicago: University of Chicago Press, 2001), 335.
104. Warren, The Supreme Court in United States History, Volume One, 653.
105. Charles Warren, "Legislative and Judicial Attacks on the Supreme Court of the United States-A History of the Twenty-Fifth Section of the Judiciary Act," American Law Review 47 (1913): 1;
106. Warren, The Supreme Court in United States History, Volume One, 554-59, 633-34, 653, 663. Although the provision had sparked little debate in the First Congress, and despite the fact that it had been the basis of the Court's jurisdiction in sixteen separate cases prior to 1816, Section 25 was viewed as particularly noxious in the South, largely because it subjected state court decisions on matters of state law to review by justices of the federal Supreme Court.
107. Cf. William M. Wiecek, "Murdock v. Memphis: Section 25 of the Judiciary Act of 1789 and Judicial Federalism," in Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789, ed. Maeva Marcus (New York: Oxford University Press, 1992), 223-47, 225, referring to antebellum fears that Section 25 would make the Supreme Court the "principal agency promoting power drain out of the states."
108. 1 Cong. Deb. 369 (1825) (Daniel Webster).
109. 42 Annals of Cong. 575 (Isham Talbot).
110. It was also seen as a way to fulfill the explicit words in congressional acts authorizing or declaring statehood, which often ended with a comment indicating that the state in question was admitted to the Union upon the same or equal footing as the original states in all respects whatsoever. See, for example, 2 Stat. 641 (February 20, 1811) (authorizing Louisiana statehood). For similar arguments about the importance of equal status to regional pride, see 2 Cong. Deb. 1009 (1826) (Edward Livingston) ("We desire it, sir, because we are States! entitled to equality! the most perfect equality with the oldest, the most populous, the most influential, the best represented State among the first thirteen of the Union! Rights, privileges, honors, burthens [sic], duties, every thing, by the structure of our Government, must be participated in by every member of it, on the broadest principle of equality");
111. 2 Cong. Deb. 1002 (1826) (Richard A. Buckner) ("Do not these six States contribute their due proportion to meet the expenditures of the Government? and have not they, and all the Western states, most valiantly and magnanimously defended the rights of our common country?")
112. 1 Cong. Deb. 370 (1825) (Henry Clay). See also 2 Cong. Deb. 1002 (1826) (Richard A. Buckner) (regarding the exclusion of Western states from the circuit system as equivalent to telling those states "that they may send delegates to Congress who may present their petitions and explain their grievances, but that they shall be entitled to no vote.")
113. 1 Cong. Deb. 528 (1825) (Richard M. Johnson).
114. 1 Cong. Deb. 529 (1825) (Richard M. Johnson) (supporting circuit-riding as a way for the justices both to escape the politically corrupting influence of the capital and to "mingle with those whom they serve, and learn the manners, habits, and feelings of the people");
115. 1 Cong. Deb. 370 (1825) (Henry Clay) ("In the present state of things, the Judges of the Supreme Court know as little about the local laws of some of the Western and Southern states, as if they did not belong to the confederacy"). Through Monroe's first term, Westerners supported the abolition of circuit-riding, but after judicial decisions they believed reflected the justices' ignorance about and indifference to the concerns of the West, those feelings essentially vanished. Nettels, "The Mississippi Valley and the Federal Judiciary," 210-11, 217.
116. It was reported to be so large that Justice Thomas Todd simply excluded Tennessee from his circuit-riding schedule altogether. See 31 Annals of Cong. 419 (1817) (Thomas Claiborne) ("The time of the judge was so divided that it made it impossible for him to devote the necessary time to the court in Tennessee"). There is also some belief that Seventh Circuit duties may have been sufficiently arduous so as to accelerate Todd's death. Warren, The Supreme Court in United States History, Volume One, 301.
117. 2 Cong. Deb. 1016 (1826) (Ralph I. Ingersoll) ("Kentucky, we are told, has six hundred cases annually commenced in the Federal Courts;
118. Ohio has four hundred;
119. Tennessee has now three hundred and twenty suits undecided;
120. and the dockets of the Federal Courts in Indiana, Illinois, and Missouri, are so lumbered up as to call loudly for relief. Does any thing like this mass of business exist in the Atlantic States, where the Judicial system acts freely and unembarrassed?").
121. Nettels, "The Mississippi Valley and the Federal Judiciary," 203.
122. Indeed, according to a table presented by Ohio Representative John C.Wright, approximately 1,700 suits were filed each year in the Seventh Circuit. The next highest number of suits filed in one circuit was 130 in the First Circuit;
123. the first six circuits combined received fewer than 600 suits. In other words, the Seventh Circuit received more than ten times the number of suits annually as any other circuit and nearly three times the number of all suits as all six other circuits combined. 2 Cong. Deb. 1047 (1826) (John C. Wright).
124. Nettels, "The Mississippi Valley and the Federal Judiciary," 206-208
125. 2 Cong. Deb. 1042 (1826) (John C. Wright).
126. 2 Cong. Deb. 1011 (1826) (Edward Livingston);
127. 2 Cong. Deb. 413 (1826) (Martin Van Buren). Moreover, there was apparently some concern that district judges were "not men of the highest honor, nor had they the capacity to make a correct decision in an intricate case," the consequence of which was a judicial system lacking "the confidence of the people." 1 Cong. Deb. 586 (1825) (William Kelly).
128. 1 Cong. Deb. 527 (1825) (Richard M. Johnson).
129. 1 Cong. Deb. 370 (1825) (Henry Clay).
130. 1 Cong. Deb. 528 (1825) (Richard M. Johnson).
131. Madison's appointment of the young Joseph Story in 1810, for instance, came over vocal objections from those who thought the death of William Cushing offered an opportunity to rein in the Court that would be wasted on a moderate New Englander like Story. Monroe went even further, nearly appointing strong Federalist James Kent in 1823 before settling on Kent's protégé, New York judge Smith Thompson, instead. Even Thomas Jefferson, from whose ideology Madison and Monroe broke but whom both still considered their mentor, nominated as justices three men- William Johnson, Henry Brockholst Livingston, and Thomas Todd-from the moderate wing of the Democrat-Republican Party. Combined with John Marshall and Adams appointee Bushrod Washington, these justices anchored the Court's nationalism. See Graber, "Federalist or Friends of Adams," 242;
132. Warren, The Supreme Court in United States History, Volume One, 415-419
133. Graber, "Federalist or Friends of Adams," 248.
134. For example, when the New England states defied the embargo and obstructed the war effort, Congress included provisions in the Non-Intercourse Act of 1815, 3 Stat. 195 (February 4, 1815), and the Collection of Duties Act of 1815, 3 Stat. 231 (March 3, 1815), allowing for removal of suits against federal officers from state to federal court. Such provisions, which would later serve as a model for the Nullification and Civil War removal statutes, protected customs officials and duty collectors from local hostility and biased prosecutions by state courts opposed to the substance of the federal law those officials were charged with enforcing, but they expired naturally on their own and did not effect any lasting change in the character of judicial power.
135. In the 1810s alone, National Republicans extended the power to issue injunctions in circuit court cases to district court judges, 2 Stat. 418 (February 13, 1807);
136. provided for circuit judges to perform the duties of district judges when the latter were unable to do so, 2 Stat. 534 (March 2, 1809);
137. established new judges in understaffed locations, 2 Stat. 563 (March 2, 1810), 2 Stat. 719 (April 29, 1812), 3 Stat. 95 (January 27, 1814);
138. granted circuit courts jurisdiction over patent cases, 3 Stat. 481 (February 15, 1819);
139. and furnished the Supreme Court with a paid court reporter, 3 Stat. 276 (March 3, 1817). This latter development made the justices' opinions more broadly accessible to both lawyers and citizens and subsequently diminished the importance of newspapers (and unreliable, highly impressionistic reports) in shaping public opinion about the Court. See Warren, The Supreme Court in United States History, Volume One, 455.
140. For John Marshall's approval of the idea of a paid Court reporter, see American State Papers: Miscellaneous 2: 419-420
141. See, for example, Green v. Biddle, 21 U.S. 1 (1823) (striking down Kentucky's occupancy law as a violation of an earlier compact between Kentucky and Virginia that was protected by the Contracts Clause).
142. Nettels, "The Mississippi Valley and the Federal Judiciary," 217.
143. A fourth alternative, raised from time to time but never with much support among legislators, proposed the addition of two circuit courts in the West and two circuit judges who would exercise authority equivalent to Supreme Court justices without creating a new circuit or a new seat on the Court. A slight variant of this plan effectively designated the new circuit judges as "backup" justices in case there was a vacancy on the Court. Since neither plan offered the West the judicial representation it desired, both were wholeheartedly opposed by Westerners.
144. 42 Annals of Cong. 576 (1824) (James Barbour) (reminding his colleagues that it was "much more easy to adopt than to get rid of any new judiciary system which might be adopted");
145. 2 Cong. Deb. 1136 (1826) (Dudley Marvin) (cautioning legislators that "what shall be done to-day cannot be revoked to-morrow" and hoping that any reform be "the result of cool deliberation").
146. 2 Cong. Deb. 1127 (1826) (Charles F. Mercer) ("sudden augmentation of business in the Courts of the seventh Circuit, did not arise from the alleged defects of the present Judicial System of the United States, but from transient causes, either multiplying the claims of non-residents, of the Bank of the United States, and of merchants of the East;
147. or from a course of legislation which induced the plaintiff to prefer the Federal to the State Courts").
148. 2 Cong. Deb. 1137 (1826) (Dudley Marvin) ("This Court, sir, is the common property of the whole American People. It belongs not exclusively to the West or to the East, the North or the South");
149. 2 Cong. Deb. 976 (1826) (Alfred H. Powell) ("Judges should have no political opinions or sectional feelings. Like the emblem they represent, they ought to be blind to the party or sectional policy or views of the Government under which they administer the laws").
150. 2 Cong. Deb. 1130 (1826) (Charles F. Mercer) ("Seven Judges, and more especially five, will perform the duties of an Appellate Court, in much shorter time than ten");
151. 2 Cong. Deb. 1139 (1826) (Dudley Marvin) ("But what is the system of the bill? To meet the increase of business in the inferior Courts, it increases the number, not of the inferior, but of the Supreme Court judges;
152. it makes the Supreme Court subordinate and secondary, and burthens [sic] it with a number of Judges confessedly too large for its own business, that they may attend to the business of Courts below!").
153. Cf. Nettels, "The Mississippi Valley and the Federal Judiciary," 217, noting that calls for judicial representation caused "many Easterners of conservative cast of mind to believe that one purpose of enlarging the Court was to add enough western judges for reversing its recent anti-Western decisions." 92.Webster's first stint in Congress was as a representative from New Hampshire from 1813-1817;
154. after six years practicing law, he returned to the House as a member of the Massachusetts delegation in 1823, serving two terms before moving to the Senate in 1827.
155. After conferring with Justice Joseph Story, Webster himself proposed a bill to this effect in 1824, 42 Annals of Cong. 2617 (1824). On Webster's consultation and friendship with Story
156. see Remini, Daniel Webster, 213-14, 257.
157. 2 Cong. Deb. 877 (1826) (Daniel Webster): ". . . [B]ut then, whether it be desirable, upon the whole, to withdraw the Judges of the Supreme Court from the Circuits, and to confine their labors entirely to the sessions at Washington, is a question which has most deeply occupied my reflections, and in regard to which I am free to confess, some change has been wrought in my opinion."
158. Cf. Letter from Jeremiah Mason to Daniel Webster (4 February 1826), quoted in George Ticknor Curtis, Life of Daniel Webster, Volume One, 4th edition (New York: D. Appelton, 1872), 264.
159. Nettels, "The Mississippi Valley and the Federal Judiciary," 222.
160. For Van Buren's amendments, see 2 Cong. Deb. 409 (1826).
161. The House bill grouped Kentucky and Missouri in the Seventh Circuit, and Ohio, Indiana, and Illinois in the Eighth Circuit;
162. the Senate bill combined Ohio and Kentucky in the Seventh Circuit, and Indiana, Illinois, and Missouri in the Eighth Circuit. Both plans added Tennessee, which had been joined with Kentucky and Ohio as part of the Seventh Circuit since 1807, to Alabama in the Ninth Circuit, and paired Louisiana and Mississippi in the Tenth Circuit.
163. Nettels, "The Mississippi Valley and the Federal Judiciary," 223, claims that Van Buren succeeded in sustaining the amendments by building a coalition of three groups-"the antiadministration senators of the South, the eastern conservatives who were opposed to tampering with the Supreme Court and perceived in the amendments the hope of defeating the bill, and the senators from the interested western states"-but only four senators, including both of Ohio's and one of Kentucky's, voted against the amendments, so it is difficult to draw any certain conclusions about voting patterns.
164. 2 Cong. Deb. 2602 (1826) (Daniel Webster).
165. Nettels, "The Mississippi Valley and the Federal Judiciary," 223. If necessary to pass the reform bill, Webster was willing to accede to the Senate amendments, but the defection of the Ohio representatives apparently foreclosed that possibility. See Letter from Daniel Webster to Jeremiah Mason (2 May 1826), quoted in Warren, The Supreme Court in United States History, Volume One, 683 n1: "If the Senate do not yield their amendment probably we shall agree to it."
166. Remini, Daniel Webster, 258.
167. See Letter from Daniel Webster to Joseph Story (8 May 1826)
168. quoted in Remini, Daniel Webster, 259 n29.
169. Remini, Daniel Webster, 258 n24.
170. In the 1824 presidential election, the infamous "corrupt bargain" between then-Secretary of State John Quincy Adams and Speaker of the House Henry Clay threw the Electoral College vote-and, thus, the presidency-to Adams over Jackson even though the latter had won the national popular vote.
171. Nettels, "The Mississippi Valley and the Federal Judiciary," 223.
172. For the details of this remarkable incident, I draw on Nettels, "The Mississippi Valley and the Federal Judiciary," 222- 23;
173. Warren, The Supreme Court in United States History, Volume One, 683;
174. Remini, Daniel Webster, 258-60;
175. Robert V. Remini, Martin Van Buren and the Making of the Democratic Party (New York: Columbia University Press, 1959), 114, 229 n1;
176. Frankfurter and Landis, The Business of the Supreme Court, 42.
177. Indeed, when McLean, who had remained on good terms with supporters of both Adams and Jackson during the 1828 election but soon came to be affiliated with the John C. Calhoun wing of the proto-Democrats, did make it to the Court in 1829, it was as a Jackson appointee. Jackson, however, was uneasy about placing someone as ideologically iconoclastic as McLean on the Court, ultimately doing so largely to remove a potential presidential rival from the electoral sphere. With McLean waging active campaigns for the presidency four times on four different party lines (including, finally, as a Republican) during his thirty-two years on the Court, Jackson's ploy did not work. Abraham, Justices, Presidents, and Senators, 78-79.
178. On patronage and the "clerical" bureaucracy, including the Post Office, during the first half of the nineteenth century, see Daniel P. Carpenter, The Forging of Bureaucratic Autonomy: Reputations, Networks, and Policy Innovation in Executive Agencies, 1862-1928 (Princeton, NJ: Princeton University Press, 2001), 37-64.
179. On the work of John McLean as Postmaster General and the role of the early Post Office in American society more generally, see Richard R. John, Spreading the News: The American Postal System from Franklin to Morse (Cambridge, MA: Harvard University Press, 1995).
180. On the transformation of the Post Office from the Civil War through the Progressive Era, see Carpenter, The Forging of Bureaucratic Autonomy, 65-178.
181. See Letter from Martin Van Buren to Benjamin F. Butler (15 May 1826)
182. quoted in Warren, The Supreme Court in United States History, Volume One, 683 n1: "The great object is to get McLean out of the Post Office which can only be effected by his promotion, as they dare not displace him." The general consensus of the era seemed to be that, even though McLean was untrustworthy, unpredictable, and self-serving, he was sufficiently popular in the West that politicians were careful not to offend him. Ohio Representative Thomas Corwin, for example, warned that any slight to McLean would "have the effect to rouse all his minions and the howl of prosecution would resound throughout the Union,"
183. quoted in Francis P. Weisenburger, The Life of John McLean: A Politician on the United States Supreme Court (Columbus: The Ohio State University Press, 1937), 61.
184. Jackson apparently weighed similar factors in eventually appointing McLean to the Court. See Abraham, Justices, Presidents, and Senators, 78-79.
185. Ingham would later become Jackson's first Secretary of the Treasury, only to resign after two years as part of the Petticoat Affair.
186. See Letter from Martin Van Buren to Benjamin F. Butler (15 May 1826)
187. quoted in Warren, The Supreme Court in United States History, Volume One, 683 n1: "It is also said that Ingham is to be made P. M. G. and Webster, Speaker. There may be some mistake about this latter part although I am not certain that there is." Nettels, "The Mississippi Valley and the Federal Judiciary," 222, states that McLean's move to the Court would enable, in succession, the Speaker of the House "to be advanced to the Cabinet" and Webster to "step into the speaker's chair," but Ingham, though a prominent member viewed as a potential Speaker, never actually served in that role. (Rather, the Speaker during the Nineteenth Congress (1825-1827) was Democrat-Republican John W. Taylor of New York, an ally of Adams.)
188. But see 2 Cong. Deb. 410 (1826) (Martin Van Buren) (claiming that he "was absent, on account of indisposition" when the amendment altering circuit composition "was discussed and decided in the committee" and that he had previously introduced a bill with the exact same circuit composition as proposed by the House). Van Buren's public statements, however, are contradicted by sentiments expressed in private correspondence. See Letter from Martin Van Buren to Benjamin F. Butler (15 May 1826)
189. quoted in Warren, The Supreme Court in United States History, Volume One, 683 n1: "There has been a great deal of shuffling on the part of Webster & Co. to let the Bill die in conference. This plan we have defeated by a pretty strong course. With characteristic Yankee craft, he has, though defeated in his main object, seized upon some clumsy expressions of Holmes (who reported the bill or rather amendment during my sickness) to hide the true ground of collision, the union of Kentucky and Ohio, by raising another question upon the form of the amendment. But, the matter is perfectly understood here. Unless they can have a Judge in Kentucky (who is already appointed) and one in Ohio also, they wish to defeat the bill, in hopes of getting a better one next year."
190. Nettels, "The Mississippi Valley and the Federal Judiciary," 224.
191. Frankfurter and Landis, The Business of the Supreme Court, 42.
192. Frankfurter and Landis, The Business of the Supreme Court, Ibid., 44.
193. John Quincy Adams, Third Annual Message to Congress (December 4, 1827).
194. In the midst of debates over judicial reorganization, Congress also passed the Crimes Act of 1824, which extended federal admiralty jurisdiction to crimes aboard American vessels in foreign waters. 4 Stat. 115 (March 3, 1825).
195. 4 Stat. 160 (May 4, 1826). As Frankfurter and Landis, The Business of the Supreme Court, 44, note, lengthening the Supreme Court's term both served as a "corrective for the arrears of cases" and decreased justices' circuit court attendance.
196. 4 Stat. 197 (January 24, 1827).
197. 4 Stat. 278 (May 19, 1828).
198. On Jackson's "reconstruction" of American politics, see Stephen Skowronek, The Politics Presidents Make: Leadership from John Adams to Bill Clinton (Cambridge, MA: Belknap Press, 1997), 130-154.
199. On the election of 1828 itself, see FlorenceWeston, The Presidential Election of 1828 (Washington, DC: The Ruddick Press, 1938).
200. On the election of 1824 and the possibility of a "corrupt bargain" between Adams and Speaker of the House Henry Clay, see Robert V. Remini, The Election of Andrew Jackson (Philadelphia, PA: J.B. Lippincott Company, 1963), 11-29;
201. Jeffrey A. Jenkins and Brian R. Sala, "The Spatial Theory of Voting and the Presidential Election of 1824," American Journal of Political Science 42 (1998): 1157-1179
202. One important point of convergence between Whigs and Jacksonian Democrats during this era was the desire to keep the issue of slavery out of the national political arena. See, for example, Graber, "The Nonmajoritarian Difficulty," 46-50.
203. Frankfurter and Landis, The Business of the Supreme Court, 44.
204. Andrew Jackson, First Annual Message to Congress (December 8, 1829).
205. Andrew Jackson, Third Annual Message to Congress (December 6, 1831).
206. Andrew Jackson, Fourth Annual Message to Congress (December 4, 1832).
207. Though born and raised in South Carolina, Jackson spent most of his adult life in Tennessee.
208. See Jackson, First Annual Message to Congress ("If an extension of the circuit court system to those States which do not now enjoy its benefits should be determined upon, it would of course be necessary to revise the present arrangement of the circuits;
209. and even if that system should not be enlarged, such a revision is recommended.")
210. 27 U.S. 245 (1829) (upholding state regulation of commerce as a valid exercise of police power).
211. 29 U.S. 514 (1830) (strictly construing a corporate charter to allow state taxation of banks).
212. 32 U.S. 243 (1833) (limiting the application of the Bill of Rights to federal government action).
213. Graber, "Federalist or Friends of Adams," 262. This supports the idea that the Court "has seldom lagged far behind or forged far ahead of America."
214. See Robert G. McCloskey, The American Supreme Court, 4th ed., rev. by Sanford Levinson (Chicago, IL: University of Chicago Press, 2005), 247.
215. 31 U.S. 515 (1832) (striking down a Georgia law allowing prosecution of Cherokee Indians on the grounds that only the federal government could regulate intercourse between American citizens and Indian nations).
216. I draw here on Mark A. Graber, "The Jacksonian Origins of Chase Court Activism," Journal of Supreme Court History 25 (2000): 17-39;
217. Mark A. Graber, "The Jacksonian Makings of the Taney Court," unpublished article, manuscript available at SSRN: http://papers.ssrn.com/sol3/ papers.cfm?abstract-id=842184 (last accessed 20 December 2009).
218. See Mark A. Graber, "James Buchanan as Savior? Judicial Power, Political Fragmentation, and the Failed 1831 Repeal of Section 25," unpublished article, manuscript available at SSRN: http://papers.ssrn.com/sol3/ papers.cfm?abstract-id=1356075 (last accessed 20 December 2009).
219. On the constitutional dimensions of the tariff dispute and nullification crisis, see Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning (Cambridge, MA: Harvard University Press, 1999), 72-112.
220. 4 Stat. 632 (March 2, 1833). The legislation, which is sometimes referred to as the Bloody Bill Act, granted Jackson the authority to close ports and harbors, expanded the jurisdiction of the federal courts over cases arising under the Tariff Acts, and broadened the causes for which federal officers could remove cases from state to federal courts. Much like the predecessor removal statutes during the embargo and the War of 1812 and the successor removal statutes during the CivilWar and Reconstruction, the Force Act assisted the enforcement of unpopular federal action in recalcitrant states by protecting federal marshals and collectors against biased or overzealous prosecution by state officials. For the extensive debate over the bill, see 9 Cong. Deb. 243-462 (1833).
221. Jacksonians were not ardent states' rights advocates;
222. while they were committed to a limited central government, they firmly believed the federal government was supreme within the limits of its power and were emphatic that state actors could not interfere with national policymaking.
223. Letter from Andrew Jackson to Roger Taney (25 June 1834)
224. quoted in Samuel Tyler, Memoir of Roger Brooke Taney (Baltimore, MD: John Murphy & Co, 1872), 222-223
225. Indeed, Jackson's orders were sufficiently controversial that two previous Treasury Secretaries-Samuel D. Ingham and Louis McLane-had refused to implement them. Ultimately, Jackson replaced McLane with Taney, who served a recess appointment as Acting Treasury Secretary for nine months before resigning when Congress refused to confirm him to the position on a permanent basis.
226. On the Whig response to Taney's nomination, seeWarren, The Supreme Court in United States History, Volume One, 798-800.
227. Atkinson, Leaving the Bench, 28. See also Irving Dillard, "Gabriel Duvall," in The Justices of the United States Supreme Court 1789-1969: Their Lives and Major Opinions, Volume I, eds. Leon Friedman and Fred L. Israel (New York: Chelsea House, 1969), 419-29, 427;
228. Ward, Deciding to Leave, 60.
229. 11 Cong. Deb. 287-288 (1835) (Theodore Frelinghuysen).
230. Interestingly, Frelinghuysen himself was from New Jersey, so his plan effectively diminished the chances that a resident of his state would be appointed to a vacancy on the Court and reduced the amount of time spent in New Jersey by the justice assigned to its circuit. His willingness to do this, then, suggests the depth of enmity Whigs felt toward Taney.
231. In turn, Duvall's Fourth Circuit responsibilities would revert to the Third Circuit justice, Henry Baldwin of Pennsylvania, who was said (perhaps surprisingly, perhaps falsely) to "most cheerfully accept the proposed delegation of more extended duties." 11 Cong. Deb. 288 (1835) (Theodore Frelinghuysen).
232. Daniel Webster, having moved from the House to the Senate in 1827, privately confirmed that this was at least a welcome consequence, if not an explicit goal, of the Whigs' consolidation plan. See Letter from DanielWebster to Jeremiah Mason (1 February 1835), quoted inWarren, The Supreme Court in United States History, Volume One, 800 n2: "Mr. Taney's case is not yet decided. A movement is contemplated to annex Delaware and Maryland to Judge Baldwin's Circuit and make a Circuit in the West for the Judge now to be appointed. If we could get rid of Mr. Taney on this ground, well and good;
233. if not, it [Taney's confirmation] will be a close vote."
234. In contrast to the closely divided Senate, Jacksonians in the House outnumbered the anti-Jacksonian coalition of National Republicans, Anti-Masonics, and Nullifiers by fifty-nine seats (136-77) in the Twenty-First Congress, thirty-nine seats (126-87) in the Twenty-Second Congress, and forty-six seats (143-97) in the Twenty-Third Congress.
235. Among the alternatives considered were expanding the 1807 system, reviving the disgraced 1801 system, appointing a handful of circuit judges who would be elevated to the Supreme Court in the event of a vacancy, and staffing circuit courts exclusively with district judges. Frankfurter and Landis, The Business of the Supreme Court, 46.
236. 6 Cong. Deb. 540-605 (1830).
237. Andrew Jackson, Sixth Annual Message to Congress (December 1, 1834).
238. The Senate of the Twenty-Fourth Congress was actually evenly divided (26-26), but, with Vice President Martin Van Buren breaking ties, officially Jacksonian.
239. 11 Cong. Deb. 288 (1835) (Theodore Frelinghuysen).
240. 11 Cong. Deb. 288 (1835) (Theodore Frelinghuysen). Ibid.
241. 11 Cong. Deb. 288 (1835) (Theodore Frelinghuysen). Ibid.
242. Since Westerners had objected to the idea of two circuits (and two justices) in 1826, it should be no surprise that they strongly objected to the idea of one circuit (and one justice) in 1835.
243. 11 Cong. Deb. 584 (1835) (Thomas Hart Benton).
244. 11 Cong. Deb. 585 (1835) (Thomas Hart Benton). See also 11 Cong. Deb. 589-590 (1835) (George M. Bibb).
245. 11 Cong. Deb. 584 (1835) (Thomas Hart Benton) ("It is the first time in the history of the American Senate, of a bill having been framed, making provision for three entire States, without consultation with the six Senators of those States").
246. 11 Cong. Deb. 584-585 (1835) (Thomas Hart Benton).
247. 11 Cong. Deb. 585 (1835) (Thomas Hart Benton).
248. 11 Cong. Deb. 585-586 (1835) (Thomas Hart Benton).
249. For a summary of the surrounding politics, including Jackson's broken promise to appoint another man to Duvall's seat, see Warren, The Supreme Court in United States History, Volume One, 797-820.
250. 11 Cong. Deb. 587-588 (1835) (Alexander Porter).
251. 11 Cong. Deb. 589 (1835) (John P. King).
252. 11 Cong. Deb. 590 (1835) (John Black).
253. 11 Cong. Deb. 591-592 (1835) (James Buchanan).
254. 11 Cong. Deb. 593 (1835) (Theodore Frelinghuysen).
255. 11 Cong. Deb. 594 (1835).
256. 11 Cong. Deb. 1647, 1649 (1835).
257. 11 Cong. Deb. 1646 (1835) (Benjamin Hardin).
258. 11 Cong. Deb. 1646 (1835) (Benjamin Hardin). Ibid.
259. 11 Cong. Deb. 1646 (1835) (Francis Thomas).
260. 11 Cong. Deb. 1654-1655 (1835) (Samuel Beardsley).
261. On the very same day, the Senate voted to postpone indefinitely Taney's nomination as Associate Justice;
262. it would confirm him as Chief Justice the following year.
263. 5 Stat. 176 (March 3, 1837).
264. Ohio remained in the Seventh Circuit, joined by Indiana, Illinois, and newly admitted Michigan;
265. Kentucky and Tennessee were moved from the Seventh Circuit to the Eighth Circuit, where they were joined by Missouri;
266. and Louisiana, Mississippi, Alabama, and Arkansas were established as the Ninth Circuit.
267. Although Adams's appointment was geographically "inappropriate" in the sense that it left the Court with two Fifth Circuit justices and no Third Circuit justice for three decades, it occurred before the 1807 norm of geographic representation was established.
268. For evidence that such changes did indeed occur, see Mayor of New York v. Miln, 36 U.S. 102 (1837) (upholding a state law ostensibly regulating interstate commerce as a constitutional exercise of the state's "police power" to protect the health, safety, and welfare of its citizens);
269. Charles River Bridge v. Warren Bridge, 36 U.S. 420 (1837) (narrowly construing a public charter so as to deny the existence of implied exclusive rights to a private corporation in favor of the public good).
270. See Nettels, "The Mississippi Valley and the Federal Judiciary," 225, referring to the Whigs' "hostility to allowing President Jackson to appoint the new judges and thereby determine the character of the Court for many years to come," especially so close to the 1836 election, which Whigs hoped would catapult them back into the White House.
271. It is also possible that Congress may have purposely delayed acting in the early to mid-1830s because the admission of three new states (Arkansas, Michigan, and Florida) seemed imminent. Nettels, "The Mississippi Valley and the Federal Judiciary,"Ibid., 224.
272. In terms of the actual legislative history of this landmark reform, there is little surviving record. Neither the Register of Debates nor the Congressional Globe nor the House and Senate journals indicate anything more than that the bill was proposed and passed quickly, with little deliberation in between. To the extent that biographies of the relevant actors (Jackson, Van Buren, Buchanan, Webster) mention judicial reform at all, they peculiarly omit discussion of the Judiciary Act of 1837, the one significant Jacksonian era reform that actually succeeded.
273. Given that Whigs (and their Federalist and National Republican predecessors) had been engaged in these sorts of political battles for years, cluelessness-which is often an explanation for how meaningful judicial reform is accomplished-seems unlikely in this instance. On the other hand, with the Whig decision to surrender looking foolish and nave in retrospect, it is not clear the extent to which the party's thinking should be treated as particularly astute.
274. Unfortunately, the scantiness of both primary and secondary literature on the subject-indeed, even the definitive history of the Whigs, Holt's nearly 1,000-page The Rise and Fall of the American Whig Party, lacks a single reference to either the reform or the debate surrounding it-forecloses the possibility of carefully and systematically adjudicating between these motivations.
275. Nettels, "The Mississippi Valley and the Federal Judiciary," 225.
276. Ironically, Whig political fortunes improved considerably not long after the passage of the Judiciary Act of 1837. Owing in part to the Panic of 1837, Whigs made gains in the 1838 midterm elections for both the House and Senate, even coming to control the House Judiciary Committee (as the minority party no less!) for a period in 1838-1839. Two years later, in a rematch of the 1836 presidential contest, Harrison defeated Van Buren, meaning that Whigs would have needed to delay only four more years-a period during which no other states were admitted-to have one of their own serve as president. Of course, since Harrison died exactly one month after he took office and his successor John Tyler repeatedly clashed with Whig leaders, the party controlled the presidency for only a brief moment.
277. See, for instance, Frederick Jackson Turner, The Frontier in American History (New York: H. Holt and Company, 1920), which includes Turner's famous essay, "The Significance of the Frontier in American History."
278. Frankfurter and Landis, The Business of the Supreme Court, 44 n23, also credit Buchanan with leading the charge against an 1831 attempt to repeal the perpetually controversial Section 25 of the Judiciary Act of 1789. For a deconstruction of that argument
279. see Graber, "James Buchanan as Savior?"
280. Though Frelinghuysen's consolidation plan was ultimately defeated, it was killed by the House rather than the Senate, so any "credit" for preventing it properly belongs with House Democrats rather than with Buchanan.
281. The slave states were Alabama, Arkansas, Delaware, Georgia, Kentucky, Louisiana, Maryland, Mississippi, Missouri, North Carolina, South Carolina, Tennessee, and Virginia;
282. the free states were Connecticut, Illinois, Indiana, Maine, Massachusetts, Michigan, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, and Vermont. By 1849, the additions of slave states Florida (1845) and Texas (1845) and free states Iowa (1846) and Wisconsin (1848) had raised the number of slave and free states to fifteen each.
283. The slave circuits were the Fourth (Delaware, Maryland), Fifth (North Carolina, Virginia), Sixth (Georgia, South Carolina), Eighth (Kentucky, Missouri, Tennessee), and Ninth (Alabama, Arkansas, Louisiana, Mississippi);
284. the free circuits were the First (Maine, Massachusetts, New Hampshire, Rhode Island), Second (Connecticut, New York, Vermont), Third (Pennsylvania, New Jersey), and Seventh (Illinois, Indiana, Michigan, Ohio).
285. Catron's confirmation actually occurred during the initial days of Van Buren's presidency, but his name was placed into nomination by Jackson, so he is usually considered a Jackson appointee. Jackson offered the second seat to former South Carolina Senator and Democratic vice presidential candidate William Smith, but Smith declined to serve. As a result, that seat was filled by Jackson's successor, Martin Van Buren, who chose Alabama Senator John McKinley.
286. Together with William Howard Taft, who appointed six justices in just his one term as president, Jackson trails only George Washington, who appointed eleven justices (including the first six all at once), and Franklin Roosevelt, who spread nine appointments over his three full terms in the White House. Abraham Lincoln and Dwight Eisenhower each appointed five justices.
287. In a flurry of reform during 1842, for example, Congress extended the judicial procedure established by the Judiciary Act of 1789 to all states admitted since 1828 (when Congress had last authorized such an updating), 5 Stat. 499 (August 1, 1842);
288. expanded the power of the Supreme Court to adopt rules governing lower court procedures regarding modes of discovery, admitting evidence, and issuing decrees, 5 Stat. 518 (August 23, 1842);
289. and empowered the Court to grant writs of habeas corpus to foreign citizens in American custody, 5 Stat. 539 (August, 29, 1842). For a summary of the extensive debate over this last bill and related issues, see David P. Currie, The Constitution in Congress: Descent into the Maelstrom, 1829-1861 (Chicago, IL: University of Chicago Press, 2005), 56-64.
290. Throughout the late 1830s and 1840s, there were a series of acts attending to the organization and structure of district courts. Some states were awarded new districts, others had their districts separated into divisions, still more gained new cities where court sessions would be held. Urged to act by local groups and citizens desiring cheaper and easier access to the administration of justice, Congress made these changes frequently but on a state-by-state basis. See Surrency, History of the Federal Courts, 65-70.
291. In 1845, Congress extended-without debate-federal admiralty jurisdiction to include lakes and navigable inland waters rather than just the high seas, 5 Stat. 726 (February 26, 1845). It was the constitutionality of this statute that the Court sustained in its controversial decision in The Propeller Genesee Chief v. Fitzhugh, 53 U.S. 443 (1851), which overruled the Court's earlier decision limiting admiralty jurisdiction to the "ebb and flow of the tide" in The Steamboat Thomas Jefferson, 23 U.S. 428 (1825).
292. Frankfurter and Landis, The Business of the Supreme Court, 48-52.
293. For a summary of these resolutions and bills, including proposals in 1848 to temporarily suspend circuit-riding for one or two years, see Ibid., 48 n162, 50 n164, 51 n169-70.
294. Erwin C. Surrency, "A History of Federal Courts," Missouri Law Review 28 (1963): 214, 221-222
295. Martin Van Buren, Third Annual Message to Congress (December 2, 1839) ("The number of terms to be held in each of the courts composing the ninth circuit, the distances between the places at which they sit and from thence to the seat of Government, are represented to be such as to render it impossible for the judge of that circuit to perform in a manner corresponding with the public exigencies his term and circuit duties").
296. 5 Stat. 507 (August 16, 1842).
297. By separating Mississippi from Alabama and Louisiana in the Fifth Circuit, the 1842 arrangement also marked the first time in history that all the states in one circuit were noncontiguous.
298. In sequence, John Tyler appointed Samuel Nelson to replace fellow New Yorker Smith Thompson as the Second Circuit justice in 1845;
299. James Polk named Levi Woodbury of New Hampshire to succeed Joseph Story of Massachusetts as the First Circuit justice in 1845 and tapped Robert Grier to replace fellow Pennsylvanian Henry Baldwin in 1846;
300. Millard Fillmore appointed Benjamin Curtis of Massachusetts to replace Woodbury in 1851;
301. Franklin Pierce selected Alabama's John Campbell to fill the Fifth Circuit seat of John McKinley, also of Alabama, in 1853;
302. and James Buchanan replaced Curtis with Maine's Nathan Clifford in 1858.
303. 5 Stat. 576 (June 17, 1844).
304. In 1800, Southerners represented 42 percent of the national population;
305. by 1840, they represented only 30 percent.
306. Eric Schickler, Disjointed Pluralism: Institutional Innovation and the Development of the U.S. Congress (Princeton, NJ: Princeton University Press, 2001);
307. Kathleen Thelen, "How Institutions Evolve: Insights from Comparative Historical Analysis," in Comparative Historical Analysis in the Social Sciences, eds. James Mahoney and Dietrich Rueschemeyer (Cambridge, UK: Cambridge University Press, 2002), 208-240
308. Given that Jackson seemed to care much less about ideology than he did about geography and loyalty when nominating Supreme Court justices, it is highly unlikely that he would have pursued such a desire. On Jackson's appointment criteria, see Abraham, Justices, Presidents, and Senators, 78;
309. Robert V. Remini, Andrew Jackson and the Course of American Democracy, 1833-1845, Volume III (New York: Harper & Row, 1984), 268.
310. Though, by that point, Congress had already effectively repealed the Missouri Compromise with the Kansas-Nebraska Act of 1854.
311. I fully acknowledge that the crudely dichotomous "pro-slavery" and "antislavery" labels may obscure as much as they explain. Indeed, because slavery jurisprudence involved a host of issues besides slavery proper, reducing all votes to merely an affirmation of or attack on the institution of slavery fails to capture the entirety (or, perhaps, even the vast majority) of the judicial and constitutional politics at play in slavery cases. That said, to the extent that the policy issue of greatest consequence and controversy during this era was the existence and extension of slavery, I do believe there is some value in thinking about the ways in which different holdings-and different justices' votes in favor of or against those holdings-served to buttress or erode the constitutional legitimacy of slavery in a general sense.
312. This is in sharp contrast to Justice Story, a devoted abolitionist who nonetheless broke with his regional (New England) preferences about slavery to author the Court's opinion in Prigg because he feared the effect of the alternative on the scope and force of national power more generally. Of course, even in striking down the Pennsylvania statute at hand, Story did not embrace the slaveholding argument as fully or forcefully as his colleagues, noting instead that nothing in the Fugitive Slave Clause explicitly compels state officers to enforce federal law. It was precisely this bit of judicial dicta that prompted a vigorous partial dissent from Chief Justice Taney and, somewhat later, a more aggressive protection of slaveholders' rights-and a more aggressive commitment of state action in support of those rights-in the controversial Fugitive Act of 1850, thereby making Story's subtle legal maneuver moot.
313. Of the seven states to enter the Union between the Judiciary Act of 1837 and the election of Abraham Lincoln, five- Iowa (1846), Wisconsin (1848), California (1850), Minnesota (1858), and Oregon (1859)-were free states and only two- Florida (1845) and Texas (1845)-were slave states.
314. 12 Stat. 576 (July 15, 1862). More precisely, the legislation established the First (Massachusetts, Maine, New Hampshire, Rhode Island), Second (Connecticut, New York, Vermont), Third (New Jersey, Pennsylvania), Seventh (Indiana, Ohio), and Eighth (Illinois, Michigan, Wisconsin) Circuits as free circuits;
315. the Fourth (Delaware, Maryland, North Carolina, Virginia), Fifth (Alabama, Florida, Georgia, Mississippi, South Carolina), and Sixth (Arkansas, Kentucky, Louisiana, Tennessee, Texas) Circuits as slave circuits;
316. and the Ninth Circuit (with free states Iowa, Kansas, and Minnesota and slave state Missouri) as a "mixed" circuit. Within seven months, however, the precise configuration of the three Midwestern circuits- the Seventh, Eighth, and Ninth-was altered twice, but the defining character of each circuit vis-à-vis slavery was unchanged.
317. 12 Stat. 794 (March 3, 1863). The Tenth Circuit brought California and Oregon-the former having only been served by an ad hoc California circuit created in 1855, the latter having been excluded from the system entirely since its admission to the Union in 1859-into the circuit system on equal terms;
318. Lincoln named pro-Union, antislavery Democrat Stephen Field of California to the newly created seat.
319. It is worth noting that, rather than limit the reach of the Court's power or authority, Republicans tried to make the exercise of that power and authority more receptive to their own (antislavery) policy interests;
320. rather than dismantle the post-1807 system of geographic representation that had yielded Jackson's Dixie Court, Republicans simply reappropriated it for the construction of Lincoln's Yankee Court.
321. See, among others, Walter Dean Burnham, Critical Elections and the Mainsprings of American Politics (New York: W.W. Norton & Company, 1970);
322. Ruth Berins Collier and David Collier, Shaping the Political Arena: Critical Junctures, the Labor Movement, and Regime Dynamics in Latin America (South Bend, IN: University of Notre Dame Press, 2002);
323. Karen Orren and Stephen Skowronek, The Search for American Political Development (Cambridge, UK: Cambridge University Press, 2004);
324. Paul Pierson, Politics in Time: History, Institutions, and Social Analysis (Princeton, NJ: Princeton University Press, 2004).
325. See, most notably, Richard Franklin Bensel, Yankee Leviathan: The Origins of Central State Authority in America, 1859- 1877 (Cambridge, UK: Cambridge University Press, 1990).
326. 16 Stat. 44 (April 10, 1869).
327. 26 Stat. 826 (March 3, 1891).
328. 36 Stat. 1087 (March 3, 1911).
329. Peter Bachrach and Morton S. Baratz, "Two Faces of Power," American Political Science Review 56 (1962): 947-952
330. Terry M. Moe, "The Politics of Bureaucratic Structure," in Can the Government Govern?, eds. John E. Chubb and Paul E. Peterson (Washington, DC: The Brookings Institution, 1989), 267- 329;
331. Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877-1920 (Cambridge, UK: Cambridge University Press, 1982).
332. For a notable exception, see Charles R. Shipan, Designing Judicial Review: Interest Groups, Congress, and Communications Policy (Ann Arbor: The University of Michigan Press, 1997).
333. 1 Stat. 73 (September 24, 1789).
334. 14 Stat. 385 (February 5, 1867).
335. 53 Stat. 1223 (August 7, 1939).
336. For an introduction to the idea in the context of a series of reforms in the 1920s, see Crowe, "The Forging of Judicial Autonomy."
337. For a fuller explication of the concept and detailed treatment of a series of institution-building episodes across American political development, see Justin Crowe, "Building the Judiciary: Law, Courts, and the Politics of Institutional Development" (PhD diss., Princeton University, 2007).