Congress Attacks the Supreme Court

Most Civil War era students know that a Radical Republican Congress took control of Southern Reconstruction by obtaining a near veto-proof majority against President Andrew Johnson. Since Johnson considered the congressional plan to be unconstitutional, the infant GOP wanted him removed from office so that he could not interfere.

As explained in an earlier post, the Republicans settled on impeachment as their methodology. They accused Johnson of violating a law intended to prevent him from replacing one of his own cabinet members without approval of the Republican-controlled Senate. The Senate trial fell one vote short of the two-thirds majority required to remove (convict) the President. Johnson’s successor, Ulysses Grant, complained about the law and it was repealed about twenty years after adoption.

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Fewer Civil War era students, however, realize that the Republican Congress also took shots at the Supreme Court. Congress was prepared to run roughshod over both of the other two federal government branches in order to impose its will. They wanted Reconstruction arranged in a manner that insured a sizable new voting bloc for their Party even if their plan was unconstitutional. In an act that makes present-day Republicans look generous, they passed the 1866 Judicial Circuits Act in order to deny President Johnson the opportunity to replace Supreme Court justices.

This was accomplished by temporarily permitting the court’s size to number as few as seven justices. Johnson would not be allowed to nominate a replacement unless the number of justices fell to six. Shortly after Republican Ulysses Grant succeeded President Johnson, Congress passed an act that set the Supreme Court at nine justices.

In 1868 Congress passed a law that did not permit appeals to the Supreme Court from lower federal courts where habeas corpus was at issue. The court had already ruled that individuals could not be tried in military courts if civilian courts were operating in the region. But Congress wanted to be able to prosecute Southerners in the military districts of the South without permitting them to transfer the case to a civilian court. The 1868 law prevented the accused from appealing to the Supreme Court under a writ of habeas corpus to have the case shifted to a civilian court.  Based on prior rulings, the Supreme Court would almost certainly granted such an appeal.

No single federal government branch ever again dominated the other two as did the Radical Republican Congresses of the Johnson era and first Grant administration. Fearing further congressional restraints, the court failed to review cases that might anger Republicans. It was mostly irrelevant on such matters until the Democratic Party gained strength in the 1874 elections.

My Civil War Books

Lee’s Lost Dispatch and Other Civil War Controversies
Trading With the Enemy
Co. Aytch: Illustrated and Annotated

To be released in May and available for pre-order: The Confederacy at Flood Tide

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