How did Abraham Lincoln challenged a Supreme Court dominated by pro-slavery ideologues? Princeton historian Matthew Karp answers this question in his latest piece at Jacobin. Here is a taste:
Across the late 1850s, Lincoln argued that “the American people,” not the Supreme Court, were the true arbiters of the Constitution, and that the only way to defeat the proslavery judiciary was through mass political struggle. And after Lincoln and Hamlin were elected in 1860, the new president’s inaugural address articulated this view in perhaps the strongest language he ever used:
[I]f the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made . . . the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.
Once in power, Lincoln and congressional Republicans “reorganized” the federal judiciary and “packed” the court, adding an additional justice in 1863. More fundamentally, though, they simply ignored the proslavery precedents established in the 1850s. In June 1862, for instance, Congress passed and Lincoln signed a bill banning slavery from the federal territories — a direct violation of the majority ruling in Dred Scott. The court meekly acquiesced, recognizing that its political power was long since broken.
As the legal historian Charles Warren later lamented, Republicans’ popular assault on the court crippled the institution for more than a decade: “During neither the Civil War nor the period of Reconstruction,” Warren wrote, “did the Supreme Court play anything like its due role of supervision, with the result that during one period the military powers of the President underwent undue expansion, and during the other the legislative powers of Congress. The Court itself was conscious of its weakness. . . . The loss of confidence in the Court was due not merely to the Court’s decision but to the false and malignant criticisms and portrayals of the Court which were spread widely through the North by influential newspapers . . . .”
Warren’s point, in other words, is that the greatest democratic expansion in US political history — the era of emancipation and Reconstruction — demanded a direct political attack on the power of the Supreme Court. Nor is it a coincidence that the court, as it began to recover its strength in the 1870s, led the reactionary attack on this democratic project.
Drawing direct lessons from the past is a fool’s errand, but this history should remind us that judicial power — however grandly it may be imagined by friends and foes alike — is critically dependent on political currents.
Read the entire piece here. I am not a Lincoln scholar, but there seems little in Karp’s piece about the role the Civil War played in Lincoln’s ability to challenge the pro-slavery court.