Choosing a Chief Justice: Lincoln, Law, and Racial Equality

Lincoln and ChaseChase administering Lincoln's second oath of office. (Photo: Harper's Weekly)

The appointment of any Supreme Court justice, especially the chief justice, reflects the issues and political trends of the day. But Abraham Lincoln’s appointment of Salmon Chase as chief justice in December 1864 did more than just reflect trends; it encapsulated the meaning of the Civil War and served as proof that the America that emerged from the Civil War was very different than the one that entered it.

When Lincoln ran for president in 1860, the Supreme Court was a crucial issue. In 1857, it had handed down the Dred Scott decision, which claimed that black Americans had no rights a white man was bound to respect. This decision made Chief Justice Roger Taney a hero to southerners and a villain to Republicans. Republican Senator John P. Hale of New Hampshire introduced legislation asking the Judiciary Committee to examine “the expediency and propriety of abolishing the present Supreme Court…and establishing instead thereof another Supreme Court.”

Hale’s plan was not viable, of course, and in any case, Lincoln’s victory meant that he would eventually get to appoint five new justices: three to succeed two who died (Peter Daniel in 1860 and John McLean in 1861) and one who resigned to join the Confederacy (John Campbell). For the appointments, Republicans rejiggered the circuits for which justices were responsible, and expected Lincoln to follow the tradition of seeking appointees from within those circuits. He did, naming Noah Swayne of Ohio, Samuel Miller of Iowa, and David Davis of Illinois to the court. The addition of a tenth justice to represent the newly created western circuit led to Californian Stephen Field’s selection in 1863.

But Lincoln’s four appointees by 1864 remained a minority, and Republicans saw the chief justiceship as the symbolic and substantive crux of the court. They openly hoped that Taney, aged, ailing and constantly claiming to be dying, would fulfill his own prophecy. He obliged them on October 12, 1864, less than a month before Lincoln’s reelection.

While the jockeying for the position began long before Taney’s death and gained steam afterward, one possible appointee outshone the others: Chase, who had been Lincoln’s secretary of the treasury. Although Lincoln had appreciated Chase’s support in the 1858 Senate election and the presidential race, and admired his dedication to the antislavery cause, Chase’s constant battles with Lincoln and conniving for power had done nothing to endear him to the president. Chase had repeatedly threatened to resign from the treasury when he didn’t get his way, and finally, to his shock, Lincoln accepted his resignation on June 30, 1864.

When Taney died, Chase’s fellow radical Republicans began lobbying Lincoln on his behalf. Senator Charles Sumner of Massachusetts told Lincoln, “Our new Chief Justice must believe in Liberty and be inspired by it,” a reminder that Chase had articulated the idea of “freedom national, slavery sectional” that had been so important to the Republican Party’s development.

Lincoln took no personal pleasure in appointing Chase. According to one account, Lincoln said that he would have preferred to swallow his elk horn chair. But Lincoln grasped the meaning of the chief justiceship and why Chase should have it. Lincoln told Representative George Boutwell of Massachusetts, “we cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it. Therefore we must take a man whose opinions are known.” Chase had supported the end of slavery and the establishment of civil rights, as well as Lincoln’s use of presidential power on their behalf, and Republicans could reasonably expect that as chief justice, he would uphold these fundamental Republican values.

As often happens with judicial appointees, though, they wind up addressing different issues than expected when they were chosen, or address them differently than the president who selected them would have preferred. The civil rights issues that Lincoln and other Republicans thought would matter to Chase’s chief justiceship wound up the subject of fights between Andrew Johnson and a Republican Congress that culminated in an impeachment trial over which Chase presided – and for which he received criticism from Republicans for his fairness. During Chase’s nine years on the Court, he spent more time ruling on the military and economic policies of the Lincoln administration than on civil rights.

But Chase’s appointment reflected a crucial change. The chief justice he succeeded had written that a black man had no rights that a white man was bound to respect. Chase was an intellectual father of the Republican Party and an advocate of universal suffrage. For those who debate whether the Civil War really was the second American revolution, Chase’s appointment suggests the answer.

About the Author

Michael Green

Michael Green is an associate professor of history at UNLV. In 2015, the University of Nevada Press will publish his Nevada: A History of the Silver State. He also is the author of Lincoln and the Election of 1860 (Southern Illinois University Press) and other works on the nineteenth century and the American West.

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  1. While only incidental to your article, there’s a personally ironic aspect of that Boutwell account. Chase had supported the issuing of “legal tenders” (paper money) while he was Secretary of the Treasury, and according to Boutwell Lincoln cited that as one of Chase’s “known opinions.” However, once he became Chief Justice, Chase ruled AGAINST the Constitutionality of legal tender in Hepburn v. Griswold (1870). And who was the Secretary of the Treasury who had to cope with the problems this caused to the nation’s currency? Boutwell.

    1. Brian, I appreciate you commenting on the article, and I wish I’d thought of that, because it’s a TERRIFIC historical tidbit–and in some ways less incidental and more important than a lot of people would realize. I did my dissertation on Republican ideology during the Civil War and found that party members wrestled with how their views changed, and had to change, when they were in power (and that’s relevant today, if you think about it, from George W. Bush the compassionate conservative to Barack Obama the foe of dubious foreign adventures). Chase certainly struggled at times with adapting, given his ideological baggage (a lot of it was good baggage) as a onetime Democrat who was less willing on some issues than, say, Lincoln and Seward, as old Whigs, to go along with the idea of more expansive federal power.

      1. OK, I just realized how cool it is that historians are going to get to chat on this site. You two are both nineteenth-century political types I never thought to introduce. And now we get to watch you compare notes in public!

        And let me throw in here (as political type myself) that I’m not sure Chase had many principles except the bedrock one that Chase was #1. At least no principles with regard to financial policy; I guess I can concede that he cared about equal rights. He was one of the most opportunistic politicians going, and that’s saying something.

      2. Glad you liked the anecdote.
        By the way, the picture you see here of me is of me portraying Boutwell in his house, now the Groton (Massachusetts) Historical Society’s headquarters.
        Boutwell also had to change his views when he became Secretary of the Treasury, and his re-emission of legal tender notes sent Congressional Republicans into fits. I had not thought about that in the broader context you provide, so my thanks in turn!

  2. I’ll bet Boutwell was incensed! And now I wonder if the money issue was the one Lincoln and Boutwell were talking about, although Boutwell was an abolitionist too, wasn’t he?

    1. Correct on both counts. Boutwell rarely spoke ill of the dead, so his condemnation of Chase is terse: “he abandoned the Republican Party . . . and . . . he abandoned his own policy . . . in regard to the legal tender currency.” (Reminiscences, vol 2., p. 29)

      Boutwell often took his anecdotes from letters he sent his family during the Civil War, and his daughter tended to preserve letters that referred to Lincoln. So I have to wonder if that anecdote is in a letter at the Groton Historical Society. As I did some work for them this year, maybe they’ll check into it for me.

  3. I’d have to agree with Heather on Chase, with a caveat: he really did oppose slavery and support civil rights. He was principled in his opinions, but he would work with anybody to get himself ahead, including the Know-Nothings, which Lincoln and Seward, the supposedly less principled political types, wouldn’t do. It’s interesting to think about the other candidates for chief justice, too. Deep down, I think Lincoln wanted to appoint Montgomery Blair. Blair was an old Democrat and the family went back that way after the war, but he had enough Jacksonianism in him that he could have gone either way on these issues.

    And, Brian, it’s great to meet you!

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