Justice Taney came with the Dred Scott decision which was handed down on March 6, 1857. The details of this famous case are too well known to require review here. This decision by the court of last resort finally resulted in an appeal to arms which was destined to reverse the decree of the nation's highest court of law. The Civil War was now at hand, and it is remarkable and interesting that during the period covered by the War no echo of it was reflected from the Supreme Court. The only change that the War produced was in the resignation of Justice Campbell, who left the Bench to devote his efforts to the cause of the South.

In 1862, the Prize Cases arose, in which the Supreme Court upheld the President's right to institute a blockade. These decisions were of preeminent importance to the cause of the North. The President had appointed three new justicesSwayne, Miller, and Davis-whose selection made these decisions possible. The attitude of the Chief Justice was clearly indicated by his decision from the Circuit Bench in the Merryman case in which he denied the right of President Lincoln to suspend the Act of Habeas Corpus. But the career of Justice Taney was about at an end. He was unable to serve on the Bench during 1863, and in October of the following year he died. On the sixth of December, 1864, Chase was appointed to succeed him.

The new Chief Justice held views also at wide

variance to those of his predecessor. He held pronounced views in opposition to slavery, and in 1841 he became one of the leaders of the Liberty Party. The fact that many of his acts while Secretary of the Treasury during the early years of the War were unconstitutional, did not deter him as Chief Justice from reverting to principles of interpretation established by Marshall. The important case of The State of Texas v. White (discussed elsewhere in this book) is sufficient illustration of the influence of party action upon judicial opinion.

Political influence was held responsible for the reversal by the Supreme Court of the decision in the case of Hepburn v. Griswold, one of the Legal Tender Cases. This case was first argued in 1869, and on the seventh of February, 1870, the Court handed down its decision declaring the Legal Tender acts unconstitutional, and that Congress had no power to make mere promises to pay dollars a legal tender in the payment of debts. President Grant, Judge Hoar, his Attorney-General, and many prominent Republicans were opposed to the conclusion reached in this case. The Court at this time consisted of eight judges, the Chief Justice and seven associates. The Chief Justice (Chase) and four associates concurred, and three dissented from the opinion. By the provisions of an act of Congress which took effect on the first Monday in December, 1869, it was enacted that "the court should consist of a chief justice

and eight associates, and that, for the purpose of this act, there should be appointed an additional judge." Justice Grier, who had voted with the majority in this case, resigned February 1, 1870. President Grant, under the provisions of the judiciary act of 1869, appointed to the Supreme Bench Justices Strong and Bradley. When the case of Hepburn v. Griswold came up for rehearing, both of these new justices voted for reversal, which gave a majority of one. The Court and President Grant were severely criticized, but in later years the new decision has been more generally approved.

The Supreme Court remained comparatively free from party criticism from 1870 to the time it rendered the income tax decision in May, 1895. This decision was arrived at by a vote of five to four, and reversed the decision of 1880. The later decision was severely condemned by the Democratic and the Populist platforms of 1896. The Supreme Court was derided as the ally of the rich, and the defender of special privilege. There has been a growing tendency since that time to criticize the Court. Several reasons account for this condition. In the first place, the decisions of the Court are so often rendered by a divided Court, often by a five to four vote, and the diversity of grounds on which the various members have reached their diverging conclusions has suggested that the justices are prompted by party convictions rather than established and infallible guiding principles of law. Again, the decisions in the

Insular Cases and the decisions growing out of the Inter-State Commerce Act have carried loose construction to its ultimate limit. This has resulted in wide, popular criticism of the Court. The Democratic Platform of 1904 criticized the Court in this vigorous language: "It (the Republican party) forced strained and unnatural constructions upon statutes" by virtue of its control of the judiciary. Brooks Adams in his most recent book, offers this explanation for the increased criticism of our courts:

I

"Not only has constant judicial interference dislocated scientific legislation, but casting the judiciary into the vortex of civil faction has degraded it in the popular esteem. In fine, from the outset, the American bench, because it deals with the most fiercely contested of political issues, has been an instrument necessary to political success. Consequently, political parties have striven to control it, and therefore the bench has always had an avowed partisan bias. This avowed political or social bias, has, I infer, bred among the American people the conviction that justice is not administered indifferently to all men, wherefore the bench is not respected with us as, for instance, it is in Great Britain, where law and politics are sundered. Nor has the dissatisfaction engendered by these causes been concealed. On the contrary, it has found expression through a series of famous popular leaders from Thomas Jefferson to Theodore Roosevelt."

Theory of Social Revolutions (1913), P. 47.

The climax of opposition to the courts came in 1912, when the recall of judicial decisions1 became a national issue. This theory may be said to be the direct result of opposition to the doctrine that the courts have the power to declare a statute unconstitutional, a doctrine that has been upheld by the courts even from Colonial days, and was early accepted by the Supreme Court. The history of this doctrine will be traced in the following chapter, as it is fundamental to the later chapters of the book.

This theory is discussed in Chapter viii.