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Congress Has Refused To Confirm Supreme Court Justices Before, And Can Do It Again


In a recent article here at The Federalist, Ilya Shapiro explained that the Senate would be well within its rights to refuse to confirm any of Hillary Clinton’s Supreme Court nominees should she become president. The reaction on the Left was swift and hysterical. In the Huffington Post, legal affairs reporter Cristian Farias called the idea “the beginning of the end of the Supreme Court as we know it” and “unprecedented in American history.”

On the first point, reasonable people may disagree, but on the second Farias and other outraged lefties are completely wrong. Refusing to allow a president to appoint Supreme Court justices is not unprecedented, because Congress did that very thing in 1866. It was an unusual solution to an unusual situation, but it was also popular, constitutional, and arguably necessary for the survival of the republic.

Congress Versus the President

In 1866, a Republican Congress was contemplating the reconstruction of the defeated South after the Civil War. They had overwhelming majorities in both the House and Senate, but were obstructed by the president, Andrew Johnson. Elected vice president in 1864, Johnson, a former Democrat, acceded to the presidency after the assassination of Abraham Lincoln in April 1865.

Republicans were initially optimistic that Johnson would work with them to ensure their vision of a new, more equal order in the South, but he quickly dashed their hopes. Johnson pardoned almost all of the former rebels and sought to readmit the seceded states with no changes to their legal and political makeup other than abolishing slavery, which was mandated by the Thirteenth Amendment.

To Republicans in Congress, Johnson’s leniency looked to overturn the results of the war. Southern states were already enacting restrictions on former slaves’ voting and civil rights, and Republicans feared that the rapidly reassembled Union would place the erstwhile secessionists in an even stronger position than they had held before the war, while trampling on black Southerners’ new-won freedoms. They responded by passing their own reconstruction plan and, when Johnson vetoed their proposed laws, by voting to override him.

Controlling the Judiciary

There would be limits to what Congress could legislate, however, especially if Johnson were able to pack the Supreme Court with nominees who would find any Reconstruction law unconstitutional. Faced with the destruction of the gains won in the Civil War, Republicans acted.

In 1866, they proposed the Judicial Circuits Act, which passed the House 78-41 and was approved in the Senate on a voice vote. The act required that “no vacancy in the office of the office of associate justice of the supreme court shall be filled by appointment until the number of associate justices shall be reduced to six.” The Supreme Court, which then had ten seats (one of which was vacant) would be reduced with the death or retirement of each justice until it was down to six seats. Effectively, Congress ensured that Johnson would never have the opportunity to appoint a justice.

As historian Stanley Kutler noted in a 1966 journal article about the act, Johnson partisans at the time and for years thereafter characterized the move as partisan gamesmanship and a congressional attack on the foundations of the Supreme Court. (Sounds familiar, doesn’t it?) Although the act cancelled Johnson’s pending nomination of Henry Stanbery to the tenth seat, Johnson did not veto it, either because he knew it was constitutional or because he knew his veto would be overridden.

The reduction in the Supreme Court’s size may have been less controversial then than now because the number of seats used to vary more often. The Supreme Court as originally constituted in 1789 had six seats. It grew to seven in 1807, nine in 1837, and ten in 1863.

The number nine seems to modern court observers to have a talismanic significance, but it held no such magic to nineteenth-century Americans. Only when President Franklin Roosevelt tried to expand the Supreme Court in 1937 to overcome constitutional objections to the New Deal did the number become sacred in the public mind. But a nine-justice court is not required, either by the Constitution or by historical precedent.

It Worked Then, and Can Work Again

The Judicial Circuits Act of 1866 achieved its goals, at least in the short term. The Supreme Court was reduced to nine seats immediately, since one seat had been vacant since the death of Justice John Catron in 1865. In 1867, it shrunk to eight when Justice James Wayne died. By then, Congress was firmly in control of Reconstruction, and Johnson’s power was in decline. He was impeached the next year, and acquitted in the Senate by only one vote. The election of General Ulysses S. Grant to the presidency that year ensured that the project of reconstructing the South would go forward. The Judicial Circuits Act of 1866 was part of the reason for that success.

Some historians, including Kutler, have claimed non-partisan purposes for reducing the court’s size, citing congressional testimony that some Supreme Court justices considered a ten-man court too large and unwieldy. But that argument is belied by the fact that Congress passed a law expanding the court back to nine seats the minute Johnson left office. Once they were free of the threat of anti-Reconstruction justices being appointed, the other arguments about the court’s size faded away.

Congress in 1866 was concerned about an unpopular, reactionary president using the Supreme Court to restrict the people’s rights. In 2017, we will likely find ourselves with an unpopular, radical president who would love to use the court to do the same thing. Clinton has already explicitly called for reducing the people’s individual rights under the First and Second Amendments and for expanding the scope of federal power in other ways. Reducing the size of the Supreme Court is an extreme remedy, but not an unprecedented one and Congress would, indeed, be well within its rights to consider it.