Precedent and Personnel: When the Justices Change so Does the Constitution
Readers of this blog know that I am a harsh critic of the Roberts Court (to say the least). The current GOP justices have dramatically altered the constitutional law of abortion, affirmative action, gun control, separation of powers, free speech and free exercise, among many others, in a short period of time. Partisanship is a much more important factor to the Roberts Court than fidelity to precedent, text, or history, and it is not close.
The Court's utter disregard for prior cases, however, has long been a feature of Supreme Court decision-making. Constitutional law changes substantially in this country when the justices’ politics and values change, and often for no other reason. The Supreme Court has never been an institution that puts law in any form above the justices' aggregate policy preferences.
This disregard of prior law is not a 21st-century problem. A dramatic story rarely told that unfolded more than 150 years ago reveals the true character of the Supreme Court. It is a story not taught in most constitutional law classes or discussed at legal conferences. But it should be.
On February 25, 1862, Congress passed the Legal Tender Act, which made paper money legal tender to pay private debts. Prior to that law, gold and silver were used for this purpose. The dramatic change was strongly supported by Secretary of the Treasury Salmon Chase because of the North’s desperate financial situation. The North had to pay for the Civil War, and the government was almost out of money.
After the government printed paper money, debtors could pay pre-existing obligations with these new “greenbacks” instead of gold or silver, which helped debtors but harmed creditors as the paper money’s value depreciated. As years passed, more greenbacks were printed by the federal government to wage the Civil War. By the time the constitutionality of the Legal Tender Act reached the Supreme Court in 1870, Samuel Chase was now the Chief Justice. He probably should have recused himself from deciding on the validity of a law he worked so hard to pass but he did not take himself off the case. The justices' questionable ethics practices are not a new problem.
Although it might seem obvious today that Congress has the power to make paper money legal tender, the issue sharply divided the country at the time.
The Court’s first decision on the question held that Congress acted unconstitutionally. By a four-to-three vote in Hepburn v. Griswold, the Court, in an opinion ironically authored by Chief Justice Chase, held that Congress did not have the power to make paper money legal tender for debts existing prior to 1862, the year the law was passed. The majority held that there was no express provision in the Constitution authorizing Congress to make paper money legal tender (the Constitution only mentions “coin”). Moreover, because many of Congress’s enumerated powers involve money, the justices said that it would prove too much to say that Congress had the implied power to make paper money legal tender. The Court also found that the Act was inconsistent with the “spirit” of the Constitution in that it interfered with pre-existing contracts. The dissenting Justices disagreed vehemently with just about every aspect of the decision.
The Court handed down Hepburn on February 7, 1870. That day there happened to be two vacancies on the Court. Almost a year earlier, the Republican Congress had increased the size of the Supreme Court to nine (Congress had altered the number of justices several times for partisan reasons prior to settling on nine). President Grant nominated two new Justices on the very same day that Hepburn was announced (it appears the Administration was told of the result prior to its publication. Leaks are not new either). It is likely the timing was not coincidental.
Eventually, William Strong and Joseph Bradley were confirmed, giving the Republicans a majority on the Court. It was widely known that Grant would only nominate men who would affirm the Legal Tender Act. Opposition to the Hepburn decision was likely a litmus test for any nominee, just as opposition to abortion rights was a litmus test for President Trump.
Before discussing what happened next, it is necessary to pause and consider the importance of the Hepburn decision. A legal commentator writing in 1929 said that the Hepburn case was “argued and reargued by numerous and distinguished counsel. It is probable that never in the history of the Court has any question been more thoroughly considered before decision.” The case was not only important for its specific result, but it was a major statement on the limited powers of Congress. Much of the Court’s rationale was inconsistent with Chief Justice John Marshall’s pro-congressional reasoning in his landmark opinion in McCulloch v. Maryland.
The result in Hepburn was short lived. Just over one year later, the two newly confirmed Republican justices joined the three dissenters in Hepburn and reversed the decision in Knox v. Lee. The majority relied on the government's need to raise money to fight the war and on a much broader view of Congress’s implied powers. Those were the same arguments that were expressly rejected by the justices only fifteen months earlier. The Court reversed itself on one of the most important and hotly debated questions it ever had to decide for no other reason than the people on the Court changed.
The commentators who favored the first decision did not hide their contempt for its reversal. The New York World newspaper said the following: "The decision provokes the indignant contempt of thinking men. It is generally regarded, not as the solemn adjudication of an upright and impartial tribunal, but as a base compliance with Executive instructions by creatures of the President placed upon the Bench to carry out his intentions." Of course, similar language was used by many critics of the Dobbs decision, which overturned Roe v. Wade.
This disregard of precedent by the Court has continued ever since in numerous areas of constitutional law, which often changes solely because the people on the Court change. That pattern is obviously true today but was also true in 1871, when the Court overturned one of the most important decisions in American history after only one year simply because the justices changed. As I’ve said many times on this blog, stealing from Richard Posner, if changing judges changes law, do we even know what law is?
When it comes to the Supreme Court, that thorny jurisprudential thicket is not a 21st-century problem but an old one built into the institution by its structure and traditions. Without due respect for precedent, the justices are essentially free to change the law whenever a majority desires to do so. It is one of many reasons that the Supreme Court of the United States does not act like a real court, and its justices do not act like real judges. It is well past time that the American people understand that reality, as the Legal Tender Cases starkly revealed so long ago.
--Eric Segall
The Court's utter disregard for prior cases, however, has long been a feature of Supreme Court decision-making. Constitutional law changes substantially in this country when the justices’ politics and values change, and often for no other reason. The Supreme Court has never been an institution that puts law in any form above the justices' aggregate policy preferences.
This disregard of prior law is not a 21st-century problem. A dramatic story rarely told that unfolded more than 150 years ago reveals the true character of the Supreme Court. It is a story not taught in most constitutional law classes or discussed at legal conferences. But it should be.
On February 25, 1862, Congress passed the Legal Tender Act, which made paper money legal tender to pay private debts. Prior to that law, gold and silver were used for this purpose. The dramatic change was strongly supported by Secretary of the Treasury Salmon Chase because of the North’s desperate financial situation. The North had to pay for the Civil War, and the government was almost out of money.
After the government printed paper money, debtors could pay pre-existing obligations with these new “greenbacks” instead of gold or silver, which helped debtors but harmed creditors as the paper money’s value depreciated. As years passed, more greenbacks were printed by the federal government to wage the Civil War. By the time the constitutionality of the Legal Tender Act reached the Supreme Court in 1870, Samuel Chase was now the Chief Justice. He probably should have recused himself from deciding on the validity of a law he worked so hard to pass but he did not take himself off the case. The justices' questionable ethics practices are not a new problem.
Although it might seem obvious today that Congress has the power to make paper money legal tender, the issue sharply divided the country at the time.
The Court’s first decision on the question held that Congress acted unconstitutionally. By a four-to-three vote in Hepburn v. Griswold, the Court, in an opinion ironically authored by Chief Justice Chase, held that Congress did not have the power to make paper money legal tender for debts existing prior to 1862, the year the law was passed. The majority held that there was no express provision in the Constitution authorizing Congress to make paper money legal tender (the Constitution only mentions “coin”). Moreover, because many of Congress’s enumerated powers involve money, the justices said that it would prove too much to say that Congress had the implied power to make paper money legal tender. The Court also found that the Act was inconsistent with the “spirit” of the Constitution in that it interfered with pre-existing contracts. The dissenting Justices disagreed vehemently with just about every aspect of the decision.
The Court handed down Hepburn on February 7, 1870. That day there happened to be two vacancies on the Court. Almost a year earlier, the Republican Congress had increased the size of the Supreme Court to nine (Congress had altered the number of justices several times for partisan reasons prior to settling on nine). President Grant nominated two new Justices on the very same day that Hepburn was announced (it appears the Administration was told of the result prior to its publication. Leaks are not new either). It is likely the timing was not coincidental.
Eventually, William Strong and Joseph Bradley were confirmed, giving the Republicans a majority on the Court. It was widely known that Grant would only nominate men who would affirm the Legal Tender Act. Opposition to the Hepburn decision was likely a litmus test for any nominee, just as opposition to abortion rights was a litmus test for President Trump.
Before discussing what happened next, it is necessary to pause and consider the importance of the Hepburn decision. A legal commentator writing in 1929 said that the Hepburn case was “argued and reargued by numerous and distinguished counsel. It is probable that never in the history of the Court has any question been more thoroughly considered before decision.” The case was not only important for its specific result, but it was a major statement on the limited powers of Congress. Much of the Court’s rationale was inconsistent with Chief Justice John Marshall’s pro-congressional reasoning in his landmark opinion in McCulloch v. Maryland.
The result in Hepburn was short lived. Just over one year later, the two newly confirmed Republican justices joined the three dissenters in Hepburn and reversed the decision in Knox v. Lee. The majority relied on the government's need to raise money to fight the war and on a much broader view of Congress’s implied powers. Those were the same arguments that were expressly rejected by the justices only fifteen months earlier. The Court reversed itself on one of the most important and hotly debated questions it ever had to decide for no other reason than the people on the Court changed.
The commentators who favored the first decision did not hide their contempt for its reversal. The New York World newspaper said the following: "The decision provokes the indignant contempt of thinking men. It is generally regarded, not as the solemn adjudication of an upright and impartial tribunal, but as a base compliance with Executive instructions by creatures of the President placed upon the Bench to carry out his intentions." Of course, similar language was used by many critics of the Dobbs decision, which overturned Roe v. Wade.
This disregard of precedent by the Court has continued ever since in numerous areas of constitutional law, which often changes solely because the people on the Court change. That pattern is obviously true today but was also true in 1871, when the Court overturned one of the most important decisions in American history after only one year simply because the justices changed. As I’ve said many times on this blog, stealing from Richard Posner, if changing judges changes law, do we even know what law is?
When it comes to the Supreme Court, that thorny jurisprudential thicket is not a 21st-century problem but an old one built into the institution by its structure and traditions. Without due respect for precedent, the justices are essentially free to change the law whenever a majority desires to do so. It is one of many reasons that the Supreme Court of the United States does not act like a real court, and its justices do not act like real judges. It is well past time that the American people understand that reality, as the Legal Tender Cases starkly revealed so long ago.
--Eric Segall