The death of Ruth Bader Ginsburg, just six weeks before a presidential election, is a scenario out of nightmares. But in many ways, it only dramatizes a fundamental problem that has faced the country for years: the likelihood that the Supreme Court, dominated by extremely conservative justices for decades to come, will act as the far right’s major bulwark against democratic reform.
Faced with this prospect — and stung by the ruthlessness with which leading Republicans have pursued it — many liberals have come to support major judicial reforms, most of them modeled on Franklin D. Roosevelt’s plan to expand the court in the 1930s. Yet in some ways, the emphasis on FDR’s “court-packing” idea obscures a historical moment when progressives mounted an even more radical challenge to judicial supremacy: the antislavery struggle of the Civil War era.
In 1857 a Southern-majority Supreme Court ruled in Dred Scott v. Sandford that Scott had no legal right to bring suit in federal court — that, in Chief Justice Roger Taney’s famous words, colonial and US history showed that black Americans “had no rights which the white man was bound to respect.”
Equally inflammatory was the court’s ruling that Congress had no constitutional right to ban slave property in the federal territories. This decision outlawed the national platform of the antislavery Republican Party, which was premised on blocking slavery’s expansion to the West.
Slaveholders and their allies — including Democratic President James Buchanan and the overwhelmingly Democratic US Senate — embraced the decision as a final settlement of the slavery question. Taney had proclaimed Dred Scott “the law of the land,” and the ruling party in government agreed with him.
Abolitionists like Frederick Douglass, meanwhile, condemned the decision as the “judicial incarnation of wolfishness.” Yet they knew the problem of proslavery jurisprudence could not be solved by antislavery jurisprudence alone. “We can appeal from this hell-black judgment of the Supreme Court,” said Douglass, “to the court of common sense and common humanity.” The remedy for Dred Scott did not reside in a lawyer’s plea or a judge’s opinion, but in mass political struggle.
For the Republican Party, that struggle meant declaring political war on the idea of an all-powerful judiciary. After 1857 Republicans responded to Dred Scott, as the historian David Potter wrote, not with “an attack on the decision,” but “an attack on the court.”
“The Supreme Court of the United States,” announced the New-York Tribune, the largest Republican newspaper in the country, has “polluted its garments in the filth of pro-slavery politics. From this day forth it must stand . . . as a self-disgraced tribunal. And from this day forth it will be one of the great and leading aims of the people of the Free States to obliterate this shameful record and undo what has been done.”
But what could Republicans actually do? By 1858 the court contained five proslavery Southerners, three of their Northern Democratic “dough-faced” allies, and only one (moderately) antislavery justice, John McLean of Ohio. Some suggested immediate reforms, including the appointment of up to five new justices. “This Court is the citadel of Slavery,” reported one Cincinnati newspaper, “and Republicans intend to storm it.”
Probably the most popular idea — maybe even more radical, in its way, than court packing — was a plan to “reorganize” the entire federal judiciary on the basis of the circuit court population.
In 1858 William Seward introduced a bill of this kind, which would have created an instant and enduring free-state majority on the Supreme Court.
“The supreme court,” said Seward, “attempts to command the people of the United States to accept the principles that one man can own other men . . . The people of the United States never can, and they never will, accept principles so unconstitutional and so abhorrent . . . Let the court recede. Whether it recede or not, we shall reorganize the court, and thus reform its political sentiments and practices, and bring them into harmony with the constitution and with the laws of nature.”
Seward’s plan went nowhere in the Democratic Senate, but kept the national focus on the court as a bulwark of slavery. Ultimately, the most important Republican response was not any of the various technical reform proposals, but a concentrated political attack on the court’s authority as an elevated and impartial arbiter of the law.
Famously, both Seward and Abraham Lincoln accused the court of advancing a proslavery conspiracy: Chief Justice Taney had plotted with President Buchanan to craft a piece of legal “machinery” that would make slavery lawful everywhere. Republicans also denounced “superstitious worship” of the Supreme Court, mocking the “fulsome flattery” of life-tenured judges who, by virtue of their high position, somehow transcended mortal politics. In fact, they were just political appointees like any other.
The Tribune even published a general roast of the court, noting Taney’s “sinister expression,” and describing the dough-faced Justice Robert Grier as “a blonde of a rotund figure” whose “soft and rosy nature . . . succumbs under touch and returns into shape on its removal.” A judicial decision on slavery from the “fanatical” Justice John Campbell of Alabama, meanwhile, was “of no more value than the cawing of a raven. He is a middle-aged, middle-sized man, bald, and possessed of middling talents.”
Above all, the Republican assault struck at the fundamental power of the judiciary. The Supreme Court, they argued, had the authority to decide particular cases, but not to settle larger political disputes over the meaning of the Constitution.
Today, we call this power “judicial review,” but as scholars like Keith Whittington have argued, it really amounts to something much more like to “judicial supremacy,” and its roots are not legal or constitutional but themselves political. After Dred Scott, Republicans mounted a direct challenge to this power — perhaps the most aggressive popular attack on judicial supremacy in US history. “A Court makes a decision,” argued one New York legislator, “but does not make the law.”
Nor was this argument confined to the most self-consciously radical Republicans. Maine senator Hannibal Hamlin, Lincoln’s future vice president, offered a blanket rejection of the court’s authority to “decide a political question for us . . . We make the laws, they interpret them; but it is not for them to tell us . . . what is a political constitutional right of this body . . . Of all the despotisms on earth, a judicial despotism is the worst. It is a life estate.”
In 1858, Lincoln’s famous debates with Stephen Douglas turned on the Republican attack on judicial supremacy. Douglas, like other Democratic conservatives, accused Lincoln’s party of seeking “to destroy public confidence in the highest judicial tribunal on earth . . . From that decision there is no appeal this side of Heaven. Yet, Mr. Lincoln says he is going to reverse that decision. By what tribunal will he reverse it? Will he appeal to a mob? . . . Will he stir up strife and rebellion in the land, and overthrow the court by violence?”
Yet Lincoln persisted in rejecting judicial supremacy — and also the basic idea underlying it, that law somehow exists before or beyond politics, and thus it was illegitimate to resist the proslavery court through popular antislavery mobilization. “We do not propose to be bound by [Dred Scott] as a political rule,” he said. “We propose resisting it as to have it reversed if we can, and a new judicial rule established upon this subject.”
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.
In some ways, the Left today shares the position of antislavery forces in the 1850s. It confronts a rich, well-organized sect, whose commitment to property far exceeds its belief in democracy, and which has made the Supreme Court a citadel of reaction, under the banner of what Jedediah Purdy has called the “Bosses’ Constitution.”
Yet in a deeper sense the Right’s resort to judicial supremacy is not a sign of strength, but an admission of weakness: a beleaguered regime calls upon the authority of the court only to achieve what it cannot accomplish through electoral politics. The Bosses’ Constitution has no more chance of winning majority support today than the slaveholders’ agenda of the 1850s. It is, almost surely, the least popular wing of a larger conservative politics that has come to depend on minority rule.
To make this undemocratic project vulnerable, it must be made visible. It is not enough to question the decisions, the justices, or even the structure of the current court — we need to challenge, as Lincoln did, the foundation of its power to determine the law.