Justices

The History of the Supreme Court in Nine Justices: Reconstruction and Court Packing

6 min

Continuing our Oracle of Bacon-style journey through the history of the Supreme Court, we cover the years between 1863 to 1941. Part one can be found here, covering the Court’s first session in 1790 through the Civil War period.

4. Stephen Johnson Field (May 10, 1863 – December 1, 1897)

Stephen Johnson Field served with James Moore Wayne following his nomination by President Abraham Lincoln.

Field filled the 10th seat on the Supreme Court, one newly created by the Tenth Circuit Act of 1863. He was the only justice to hold this seat, as the Judicial Circuits Act of 1866 reduced the Court to seven justices via attrition, thereby preventing President Andrew Johnson from nominating any justices.

Field’s term on the Supreme Court is the second longest in history, although at the end he was “intermittently senile.” In his 34 years on the Court, Field weighed in on Plessy v. Ferguson, which upheld “separate but equal” segregation, and the Slaughter-House Cases, in which his dissent vigorously advocated for substantive due process.

Field recused himself from In re Neagle, which dealt with an assault he suffered in California where his bodyguard, U.S. Marshal David Neagle, shot the attacker (a former California Supreme Court justice with a grudge) dead, and was promptly arrested for murder. In re Neagle held that, when acting under their federal authority, federal officers are immune from prosecution by State governments.

Field retired on December 1, 1897, a few months after breaking Chief Justice John Marshall’s record, dying shortly thereafter.

5. Edward Douglass White (March 12, 1894 – May 19, 1921)

Prior to his Court tenure, Edward Douglass White sided with the Confederacy and served Louisiana as a U.S. Senator. President Grover Cleveland nominated him in 1894 as an Associate Justice, a position in which he served for 17 years, later becoming the first Associate to make a successful transition to Chief Justice after nomination by President William Taft.

White was also part of the majority in Plessy v. Ferguson. Other major decisions in his tenure included the Selective Draft Law Cases, which upheld the Selective Service Act of 1917 and conscription in the United States generally. The Court ruled that conscription did not violate the Thirteenth Amendment’s prohibition on involuntary servitude, nor the protections of the freedom of conscience enshrined in the First Amendment.

Regardless of White’s Confederate background and his Plessy ruling, he wrote a stirring opinion in Guinn & Beal v. United StatesThis case dealt with the Constitution of Oklahoma, which constructed exemptions to literacy tests for voting in such a way that illiterate whites could vote but illiterate blacks could not. The Court held such exemptions (but not literacy tests themselves) to be unconstitutional violations of the 15thAmendment.

Writing for the majority, White wrote of the provisions in Oklahoma’s constitution that:

It is true it contains no express words of an exclusion from the standard which it establishes of any person on account of race, color, or previous condition of servitude prohibited by the Fifteenth Amendment, but the standard itself inherently brings that result into existence, since it is based purely upon a period of time before the enactment of the Fifteenth Amendment, and makes that period the controlling and dominant test of the right of suffrage.

White served until his death in 1921 and was replaced by former President Taft, making White the only justice to be succeeded by the president who appointed him.

6. James Clark McReynolds (October 12, 1914 – January 31, 1941)

James Clark McReynolds served with White for nearly seven years after his nomination by Woodrow Wilson and 44-6 confirmation by the Senate. Most notable for his opposition to President Franklin Roosevelt’s New Deal legislation, McReynolds was classified as one of the “Four Horsemen,” the conservative members of the Court whose consistent opposition led to Roosevelt’s court-packing scheme. 

One of these cases was United States v. Butler, in which the Court found the federal government’s use of an exclusive tax on companies processing farm products to provide farming subsidies to be unconstitutional. The Court held the Agricultural Adjustment Act of 1933 “invades the reserved powers of the States,” that “regulation and control of agricultural production are beyond the powers delegated to the Federal Government,” and the “existence of a situation of national concern … cannot enable Congress to ignore the constitutional limitations upon its own powers and usurp those reserved to the States.”

After Justice Owen Roberts’ swing vote shifted to be more consisntently liberal, the Court’s decisions began to uphold Roosevelt’s New Deal legislation. This left McReynolds issuing blistering dissents, such as in Steward Machine Co. v. Collector, where the Court’s majority upheld the portions of the Social Security Act of 1935 which dealt with unemployment compensation. McReynolds quoted a veto letter from President Franklin Pierce in his dissent, including Pierce’s comment, “I cannot find any authority in the Constitution for making the Federal Government the great almoner of public charity throughout the United States.”

Rather than directly adding a certain number of seats to the Court to achieve his desired ideological makeup (as Democrats in 2020 flagged their intent to do) Roosevelt’s plan was more backhanded. For every justice who reached the age of 70 years and six months without retiring, Roosevelt’s plan would have allowed him to appoint a new justice, up to six total justices.

Roosevelt’s court-packing scheme was directly inspired by McReynolds’ writing, and not just in the latter’s opinions striking down his legislation. While serving as U.S. Attorney General, McReynolds proposed much the same plan, though only for lower courts.

Judges of United States courts, at the age of 70, after having served 10 years, may retire upon full pay. … I suggest an act providing when any judge of a Federal court below the Supreme Court fails to avail himself of the privilege of retiring now granted by law, that the President be required, with the advice and consent of the Senate, to appoint another judge, who shall preside over the affairs of the court and have precedence over the older one. This will insure at all times the presence of a judge sufficiently active to discharge promptly and adequately the duties of the court.

Ultimately, the plan was rejected by the American public and a Senate controlled by Roosevelt’s own party. The Senate Judiciary Committee reported the bill adversely, calling the plan “a needless, futile and utterly dangerous abandonment of constitutional principle … without precedent or justification.”

McReynolds retired from the Court on January 31, 1941, having served over 26 years.

The tenures of Field, White, and McReynolds covered nearly 80 years of American history. In their time on the Court, America saw the end of the Civil War, Reconstruction and the institution of Jim Crow laws in the South, and a lengthy fight over the constitutionality of New Deal policies and an attempt to pack the Court.

Although these fights happened more than 80 years ago, America is experiencing more partisan echoes of them today.

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This is part two of a three-part series on the history of the Supreme Court of the United States.

Part One: Foundation and Secession

Part Three: Penumbras and Stare Decisis

Image Credit: 

Left-Wikimedia Commons, Napoleon Sarony, public domain. Center-Wikimedia Commons, Frances Benjamin Johnston, public domain. Right-Wikimedia Commons, Library of Congress, Harris & Ewing, public domain.

Anders Koskinen

Anders Koskinen

Anders Koskinen is an Editorial Associate at Intellectual Takeout. He earned his BA from the University of Minnesota in December 2016 where he graduated with a double major in Journalism and Political Science.

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