A Performance Problem with a Consensus Solution

As the lack of real debate or controversy over it suggests, the Judiciary Act of 1807 was a pragmatic response to the immediate problems posed by the exclusion of three states from the circuit system. These problems—the distant and inefficient administration of justice in the frontier, restricted appellate options for Western citizens, a growing number of direct appeals to the Supreme Court—were not subject to judicial resolution. Whatever powers John Marshall may have invented, consolidated, or exercised in the early part of his tenure as Chief Justice of the United States, he could not expand the circuit system to include the Western states, and he could not fix the structurally based workload problems created by Western expansion. Instead, the task was a legislative one, and legislators had salient motivations to reform the system. Particularly in the West, where the complicated nature of land deeds and titles—and the battles between absentee landholders and resident settlers over them—was a constant agitation, citizens needed judges to resolve disputes and maintain a sense of order. District judges, especially when there was only one per state, were regarded as less capable of performing this function on their own than when joined by circuit-riding Supreme Court justices, who were more knowledgeable about the law, more skilled in educating citizens, and more respected as agents of the central government.Footnote ¹⁷ Furthermore, to the extent that a well-functioning judicial system was an issue about which citizens cared, judicial reform was a type of constituent service that might strengthen legislators' popularity in their respective districts.

Far from the concerns of partisanship, the desire for a well-functioning judicial system was consistent across different groups of legislators. Whether noble or self-interested, Democrat-Republicans and FederalistsFootnote ¹⁸ alike had incentives to alleviate the problems that plagued Western justice and irritated Western citizens. Moreover, aside from the fact that the proposed reform—the creation of a seventh circuit for the West and a seventh seat on the Supreme Court for a Westerner—offered Thomas Jefferson an additional Supreme Court appointment, it neither disproportionately favored one party or population (except the West) over another nor fundamentally transformed the judicial system as it then existed. As a result, it was relatively easy for Democrat-Republicans and Federalists to agree on both the need for reform and the type of reform that would rectify existing problems. With fairly widespread consensus about the benefits of expanding the circuit system to the West, political opposition was minimal; with minimal opposition, there were no obstacles in the path of reform. Accordingly, regarding the reform as a simple, straightforward solution to a concrete problem of judicial performance, neither chamber gave the bill any more than cursory attention before passing it, the Senate without a recorded voteFootnote ¹⁹ and the House by a margin of seventy-five votes (82–7).Footnote ²⁰ Because it was the first time the circuit system needed to be modified to incorporate states that would not naturally fit into existing circuits,Footnote ²¹ simply expanding the system by creating a new circuit and a new Supreme Court justice to ride that circuit was a reasonable idea. It was also, however, an idea with potential ramifications of which Congress seemed completely unaware.

A New Model for Judicial Reform

As the first instance in which a new circuit and a new justice were added simultaneously, the Judiciary Act of 1807 not only integrated the Western states into the circuit system and expanded the Supreme Court beyond its original 1789 size but also established a model for future reform.Footnote ²² This model had two crucial features. The first was a connection between the circuit system and the Supreme Court—or, more precisely, between the number of circuits and the number of Supreme Court justices. Such a connection was not unprecedented, but neither was it clearly established by constitutional text or political practice. For example, by simultaneously constituting a Court of six justices and requiring the attendance of two of those justices at circuit courts in each of the nation's three judicial circuits, the Judiciary Act of 1789 drew a de facto parallel between the number of circuits and the number of justices—at least until the circuit-riding reform of 1793 required only one justice to sit on each circuit court.Footnote ²³ Similarly, with the repeal of the Judiciary Act of 1801 having resurrected circuit-riding and returned the Court to a six-member body, Democrat-Republicans chose to preserve the Federalist idea of six circuits in the Judiciary Act of 1802, thus guaranteeing one justice for each of the nation's six circuits. Precisely because Democrat-Republicans sought to return the judiciary to a slightly modified form of the pre-1801 system, however, it was not clear whether the parallel between circuits and justices established by the 1802 act was meant as a prescription for future action or a reactionary move to reclaim the previous status quo. With the Judiciary Act of 1807, then, the Democrat-Republican Congress affirmed and strengthened the 1802 parallel.

The second feature, prompted by the explicit statement in the Judiciary Act of 1807 that the newly created vacancy on the Court be filled by an individual that would “reside in the seventh circuit,”Footnote ²⁴ required the president to heed concerns about geographical representation when choosing new justices. Congress had raised the matter of residency twice before—allotting circuit assignments based on the residence of the justices in the Judiciary Act of 1802 and again in an amendment to that act in 1803Footnote ²⁵—but it had never explicitly required that an appointed justice hail from a specific state or region.Footnote ²⁶ And, even though the statutory basis for this requirement applied only to the Seventh Circuit justice, once Thomas Jefferson obeyed it by appointing Kentuckian Thomas Todd to the new seat, the pressure exerted via senators chosen by state legislatures on future presidents made geographic representation for other circuits the expectation for other Supreme Court appointments.Footnote ²⁷ (See Table 1 for circuit organization and Supreme Court representation following the Judiciary Act of 1807.)

Table 1.

Circuit Organization and Supreme Court Representation—Judiciary Act of 1807

Note: There was no Third Circuit justice until 1830 due to John Adams's appointment of Virginian Bushrod Washington to replace Pennsylvanian James Wilson in 1799—a geographically “inappropriate” appointment before the post–1807 norm of geographic representation was established.

The effect of these two features on the future of the Supreme Court was twofold. First, by tying population growth to Supreme Court growth such that, provided the former continued, the latter was effectively required to keep pace with it, the connection between circuits and justices infused political considerations about new judicial appointments into an issue that had previously been dictated by apolitical performance concerns. Without such an arrangement, the circuit system could have evolved routinely, uncontroversially, and without broader ramifications for the Court. Under the system inaugurated by the Judiciary Act of 1807, however, circuit reform occurred rarely and only in exceptional circumstances because such reform held the potential for exploitation by a partisan coalition looking to gain new seats on the Court. In that way, the system did not recalibrate the natural partisan politics surrounding appointments so much as it forced their emergence on issues where such politics would have otherwise been absent, a development that greatly increased the stakes of, made perpetual the debates over, and substantially delayed success in changing the size of the Court.

Second, the fact that new states required new circuits, that new circuits required new justices, and, that those new justices were—as a result of the norm of geographically representative appointments—expected to come from one of the new states in the new circuit meant that the composition of the Court was inextricably tied to the politics of regionalism and statehood admission. Which territories were admitted to the Union when and how they—together with existing states—were organized once included in the circuit system suggested who could be appointed to the Court and, in turn, what type of body the Court was likely to be. While this practice of geographically representative appointments was, with the exception of Jefferson's appointment of Todd pursuant to the Judiciary Act of 1807 itself, an informal norm rather than a statutory rule, it nonetheless operated with both consistency and force, successfully limiting the appointment options for and constraining the appointment preferences of presidents for more than five decades. Moreover, with North, South, and West sufficiently divergent in terms of policy preferences and preferred way of life, disparate regional views on the proper scope of federal judicial power should not have been surprising. And just as justices from New Hampshire, Georgia, and Ohio were likely to differ about the place of judicial power in American democracy, so too were they likely to differ about the ends to which—about the policies for which—such power should be used. Thus, to the extent that individuals from different corners of the rapidly expanding nation were influenced by local or regional concerns and values, sectionalism and territorial expansion shaped not only the makeup but also the jurisprudence of the nineteenth-century Court.

With decisions about judicial structure suddenly decisions about the composition and jurisprudence of the Supreme Court, about the force and reach of judicial power, and about the battle between Northern abolition and Southern slavery, circuit organization was transformed from a mundane procedural matter into a substantive issue about the shape of national government and the future of national politics. The Supreme Court did not require expansion at any point in the first four decades of the nineteenth century—the size of the Court caused no problems of judicial performance; the circuit system, however, did require reform and, once the two features were connected, it meant that Supreme Court expansion was inevitable because circuit system reform was inevitable. The only question that remained was one of timing; the only matters left to be determined were when exactly reform would occur and who exactly would stand to benefit from it. As we shall see, the link between circuits and justices—embedded in the framework established by the Judiciary Act of 1807 and inescapable unless and until that framework was jettisoned—dictated the answer to that question, not only making substantial judicial reform in the 1820s and 1830s exceedingly difficult and extremely rare but also delaying it until the potential for exploitation was especially ripe.

A Factionalized Party and a Multiplicity of Interests

As the dichotomy between Hamiltonianism and Jeffersonianism collapsed and the Democrat-Republican Party fractured in the 1810s,Footnote ⁴⁷ the distinct motivations for judicial reform multiplied. Indeed, even during an era conventionally known as one of the most ideologically unified and uncontested in American history, three different segments of the Democrat-Republican coalition—proto-Whig “National Republicans,” proto-Jacksonian “Old Republicans,” and Westerners—were each motivated to pursue a different type of judicial reform for a different reason (see Table 2). The existence of three distinct (and, to a great extent, mutually exclusive) reform agendas meant not only that the so-called “era of good feelings” might more appropriately be labeled the “era of mixed feelings”Footnote ⁴⁸ but also that judicial reform during that era stood as a contested and precarious project, impeded by the clash of interests and constrained by the presence of substantial political opposition.

Table 2.

Judicial Reform Agendas in the Era of Mixed Feelings

First, National Republicans—a combination of Federalists who were disenchanted with the radical secessionist talk at the Hartford Convention and Democrat-Republicans who were increasingly dissatisfied with the party's focus on agrarian economic developmentFootnote ⁴⁹—sought to resurrect the system established by the Judiciary Act of 1801, which they reasoned was repealed “not from an objection to its structure, but to the mode of its execution.”Footnote ⁵⁰ Acting primarily to satisfy performance goals jeopardized by increasing caseloads, National Republicans considered the 1801 system—the establishment of an entirely new tier of circuit courts, the appointment of separate circuit judges to staff such courts, the elimination of circuit-riding, and a reduction in the size of the Court from seven members to five—the sweeping change necessary to remedy the continual defects in the administration of justice.Footnote ⁵¹ As early as 1816, Madison, in his eighth annual message to Congress, cited “the accruing business which necessarily swells the duties of the Federal courts” and the “great and widening space within which justice is to be dispensed” as reasons to consider “the expediency of a remodification of the judiciary establishment.”Footnote ⁵² Specifically, he urged “a relief from itinerary fatigues” (circuit-riding) for Supreme Court justicesFootnote ⁵³ and “a more convenient organization of the subordinate tribunals.” Eight years later, Monroe agreed with his predecessor, drawing attention to the effect of territorial expansion on the judicial system and calling again for the abolition of circuit-riding:

For National Republicans, then, the plan to replace circuit-riding justices with an entirely new tier of circuit court judges solved two performance problems: it allowed the justices to focus on their growing docket in Washington, and it staffed regional circuit courts with judges whose sole duty would be to dispatch judicial business in those courts. Both of these developments, of course, promised to consolidate national judicial power in ways that skeptics of the federal judiciary were likely to find objectionable.Footnote ⁵⁵

Second, Old Republicans—that is to say, those who had not been converted to the need for a strong executive by the pressure of war and those who opposed both the rechartering of the Bank of the United States and the Tariff of 1816—pursued a variety of restrictive reform measures, including the removal of judges by a vote of both houses of Congress,Footnote ⁵⁶ an age limit for federal judges,Footnote ⁵⁷ restricting admiralty jurisdiction,Footnote ⁵⁸ requiring a supermajority of the Court to nullify a state or federal law,Footnote ⁵⁹ increasing the size of the quorum needed for Supreme Court business,Footnote ⁶⁰ allowing appeals to the Senate in cases where a state was a party,Footnote ⁶¹ demanding individual seriatim opinions from each judge (rather than an official “opinion of the Court,” as became the custom under Marshall),Footnote ⁶² and, most significantly, repealing the Court's appellate jurisdiction over state court decisions as provided by Section 25 of the Judiciary Act of 1789.Footnote ⁶³ Seeking to advance their own policy interests and stunt those of National Republicans, Old Republicans viewed these court-curbing measures as powerful tools to bring judges under stricter political control and limit the reach of federal judicial authority generally.

Third, Westerners in both the House and the Senate, some of whom were either National Republicans or Old Republicans, desired to continue along the path established by the Judiciary Act of 1807 by increasing the number of circuits—and, in turn, the number of Supreme Court justices—from seven to ten. Deeming the way the existing circuit system excluded the six newest Western states and combined the other three into one unmanageable circuit “essentially inadequate”Footnote ⁶⁴ as well as the cause of “great vexation and distress,”Footnote ⁶⁵ Westerners—particularly Kentuckians Henry Clay, Richard Buckner, and Richard Johnson—saw the possibility of integrating their states and constituents into the circuit system as a means of satisfying both political and performance goals.Footnote ⁶⁶ In terms of politics, Westerners, believing that “the principle of representation was not more important in legislation itself, than in the administration of justice,”Footnote ⁶⁷ longed for “their due representation in the Supreme Court”Footnote ⁶⁸ and in the judicial system more broadly. Such representation was important because it both offered access to circuit-riding justices who might gain exposure to (and knowledge of) the laws and customs of Western communitiesFootnote ⁶⁹ and—provided continued presidential obedience to the norm of geographically representative appointments—presented an opportunity for additional Western justices to shape the jurisprudence of the Court.

In terms of performance, inclusion in the circuit system promised more efficient administration of justice for citizens. Additional Western circuits, for instance, offered the possibility of reducing the burden on the Seventh Circuit, which was sufficiently large in areaFootnote ⁷⁰ and sufficiently heavy in workloadFootnote ⁷¹ stemming from complicated litigation involving titles to Western landsFootnote ⁷² that it was perpetually backed up and delayed in issuing judgments.Footnote ⁷³ Similarly, as “memorials” (formal written complaints and pleas for action) from various Western states illustrated, the lack of a circuit court (and the presence of only a district judge exercising circuit court jurisdiction) caused manifold problems in criminal and civil cases alike.Footnote ⁷⁴ Among such problems were the fact that, if the district judge was forced to recuse himself or was otherwise unable to hear a case, the only recourse was to plead for a hearing in a neighboring circuit court, a tactic which seldom worked,Footnote ⁷⁵ and the fact that, if litigants disagreed with the judgment of the district judge, the only option was a costly appeal to the Supreme Court.Footnote ⁷⁶ Regarding their states and constituents as “deprived of those immunities which every other section of our confederacy has the felicity to share,”Footnote ⁷⁷ and with “not a case of more crying injustice to be found in the Union,”Footnote ⁷⁸ Western leaders considered it “time, high time, that something should be done”Footnote ⁷⁹ about their exclusion from the circuit system.

In sum, National Republicans longed to abolish circuit-riding and establish a new tier of circuit court judges, Old Republicans hoped to cabin the exercise of judicial power with any number of court-curbing measures, and Westerners sought the extension of the circuit system to the new states. Such divergent positions on judicial reform, especially those of the National Republicans and Old Republicans, were largely a function of divergent opinions about the Supreme Court and judicial nationalism. For National Republicans like Madison and Monroe—presidents who had, after all, appointed like-minded individuals to the Marshall CourtFootnote ⁸⁰—cases like Martin, McCulloch, Cohens, and Gibbons were consistent with their moderate mercantile and thoroughly nationalist policy preferences; for Old Republicans, they were simply proof that judicial power had run amok; for Westerners, they were at best tangential to the structural problems that plagued the judiciary. Accordingly, National Republicans provided the justices with “the political space necessary” to develop constitutional meaning as they saw fit,Footnote ⁸¹ demonstrated a willingness to empower them further,Footnote ⁸² and attended to their institutional needsFootnote ⁸³; Old Republicans helped orchestrate a series of congressional and state attacks on various facets of the Court's authority; and Westerners, though irked by the Court's invalidation of state laws protecting settlers in land disputesFootnote ⁸⁴ and nullification of state laws that allowed repayment of debts in paper money rather than exclusively gold and silver,Footnote ⁸⁵ continued to push for reform that might actually ameliorate the ills of the existing system.

Webster, Van Buren, and Bicameral Stalemate

Although the divergent interests of National Republicans, Old Republicans, and Westerners offered a range of reform options (and a range of opinions about the Supreme Court) in the mid-1820s,Footnote ⁸⁶ the debate over judicial reform largely focused on the Western plan for three new circuits and three new justices, perhaps because Westerners held the greatest personal stake and thus pressed both the issue and their preferred resolution of it continuously. Urging caution against the Western-sponsored planFootnote ⁸⁷ were assorted non-Westerners—particularly conservative National Republicans from the South—who favored the abolition of circuit-riding, questioned the causes of the caseload increase in the West,Footnote ⁸⁸ objected to the idea of “judicial representation,”Footnote ⁸⁹ and opposed the idea of a large CourtFootnote ⁹⁰ filled with Western justices who might overrule precedents friendly to National Republicans.Footnote ⁹¹ In favor of the reform were Westerners and their allies, who saw new circuits (and new justices to attend to those circuits) as the quickest way for the West to gain substantial influence in the federal judiciary and, by extension, in American politics more generally.

Chief among these allies was Massachusetts Representative Daniel Webster,Footnote ⁹² chairman of the House Judiciary Committee and a leader of what would ultimately become the Whig Party. Though more nationalist than most Western legislators, Webster nonetheless abandoned his previous support of a plan to abolish circuit-ridingFootnote ⁹³ in favor of the plan for Western expansion of the circuit system.Footnote ⁹⁴ His conversion represented tactical calculations about appointment and sectional politics. First, since the Western plan would result in three new Court vacancies to be filled by John Quincy Adams, it presented an opportunity to cement the Marshall Court's judicial nationalism for years to come. Second, recognizing that the “close union … between the Southern Atlantic and the Western States” had caused “the East much mischief,” Webster agreed with his friend Jeremiah Mason that a “union of sentiment between the East and the West … ought to be carefully cultivated.”Footnote ⁹⁵ With an influential member and former advocate of abolishing circuit-riding now leading the charge, the Western plan for three new circuits and three new justices earned easy passage in the House (132–59) in 1826.

Unfortunately for Webster and Westerners, however, bicameralism stunted the drive for reform. When the Webster-sponsored bill crossed the Capitol, it was received by New York's Martin Van Buren, chairman of the Senate Judiciary Committee (and future architect of the Democratic Party), who “reported two seemingly harmless amendments.”Footnote ⁹⁶ The first amendment made a slight alteration to the composition of circuits as proposed by the House, shifting Missouri from the House-proposed Seventh Circuit to the Eighth Circuit and returning Ohio from the House's Eighth Circuit back to the Seventh Circuit.Footnote ⁹⁷ The second amendment established an 1807-style residency requirement, mandating that each justice reside in the circuit to which he was assigned and thus explicitly continuing the tradition of geographically representative appointments. The full Senate accepted both amendments (32–4)Footnote ⁹⁸ and, after a week of debate, the entire bill (31–8), but the divergent House and Senate versions of the reform necessitated a compromise that did not emerge. Instead, the House rejected the Senate's amendments, the Senate reiterated its amendments, the House requested a conference, and the Senate refused, prompting Webster to wonder aloud on the House floor whether one chamber had ever before refused to conference with the other.Footnote ⁹⁹ With no clear end in sight and Ohio representatives displeased with the Senate plan because it combined the two largest Western states (Ohio and Kentucky) in one circuit, the House ultimately voted to postpone the reform bill indefinitely.Footnote ¹⁰⁰

The story of judicial reform in the 1820s, then, is a story about how reform did not occur. That story, however, is less about partisanship and more about geography than it might first appear. Indeed, even though the failure to reach a mutually agreeable reform bill was a failure of bicameralism, and even though the two chambers were controlled by different wings of the fraying Democrat-Republican coalition, the stalemate was not solely (or even mostly) caused by differences between Webster's proto-Whigs and Van Buren's proto-Jacksonians. Although it is true that the structure established by the Judiciary Act of 1807 implicated the disparate political goals of the two groups within the otherwise uncontentious performance issue of circuit expansion, it was actually the demands of Westerners and the constraints of geographic representation that prevented reform.

Obviously, on some level, Webster and Van Buren were jockeying over whether proto-Whigs or proto-Jacksonians would benefit from the appointments associated with expansion of the circuit system, but both leaders seemed more than willing to cooperate on what partisan politics would suggest was the most important and most controversial issue—the number of new Supreme Court seats—and both were limited in what they wished to do by geographic forces and considerations. While Webster certainly hoped to secure the vacancies for Adams, both he and Adams actually preferred two new seats on the Court instead of three—actually preferred fewer seats to more—in order to avoid the potential of tie votes on a Court with an even number of justices.Footnote ¹⁰¹ Acknowledging that his opponents “did not wish to give so many important appointments to the President,”Footnote ¹⁰² Webster expressed willingness to pass a bill authorizing only two new seats, but the majority of his committee, especially Western representatives John C. Wright of Ohio and James Clark of Kentucky, insisted on three so that two (instead of one) could be allotted to wholly Western circuits.Footnote ¹⁰³ For his part, Van Buren, while predictably loathe to place one-third of the seats on the Court in the hands of an opposition president that had won the White House under questionable terms,Footnote ¹⁰⁴ seemed prepared either to give Adams two appointments or to agree to the circuit composition proposed by Webster's committee but reluctant to yield on both the number of justices and the organization of circuits.

The latter issue proved a particularly thorny question of geographic politics, with the Ohio representatives demanding that Ohio (the most populous Western state) and Kentucky (the most politically powerful Western state, on account of leaders like Henry Clay) be placed in different circuits.Footnote ¹⁰⁵ Far from disagreeing with the Ohio delegation, Webster actively desired to facilitate the appointment of an Ohioan—Adams's Postmaster General, John McLean—to one of the proposed new seats on the Court.Footnote ¹⁰⁶ Unfortunately for both the Ohio representatives and Webster, though, Ohio, as part of the Seventh Circuit, was already represented on the Court by Kentuckian Robert Trimble. For Webster, McLean's prospective appointment promised twin benefits. On the level of partisan strength, it delicately removed an individual who was increasingly suspected to possess strong Jacksonian tendenciesFootnote ¹⁰⁷ from one of the central organs for distributing patronage,Footnote ¹⁰⁸ and it did so without alienating potential supporters in the West generally or McLean's important home state of Ohio specifically.Footnote ¹⁰⁹ On the level of personal advancement, it allowed Adams to name more moderate Jacksonian Representative Samuel Ingham of Pennsylvania—the chair of the Committee on the Post Office and Post Roads and a potential Speaker of the HouseFootnote ¹¹⁰—as McLean's replacement in the Postmaster General's Office, thus helping to clear the field for Webster himself to become Speaker.Footnote ¹¹¹ In order both to satisfy the Ohio delegation's wishes and to overcome the geographic restrictions forbidding McLean's appointment to the Court (thus serving his party as well as his own career advancement), Webster attempted to divorce Ohio from Kentucky, a tactic that prompted Van Buren to amend the bill not only to keep the two states together but also explicitly to require circuit residency (so as to prevent Webster and Adams from disregarding the post–1807 norm of geographically representative appointments and appointing McLean anyway).Footnote ¹¹²

The intensity and complexity of this “subterranean maneuvering”Footnote ¹¹³ suggests that the failure to build the judiciary in the 1820s was not because there was a lack of “powerful, concentrated economic, political, or social interest[s]”Footnote ¹¹⁴ but, rather, because there were too many. Chief among them, it seems, was the emergence of the West and the desire of both parties to court the region's support. Geography was not sole, supreme, and absolute in this episode; there were, of course, partisan imperatives at work. Yet even as Webster and Van Buren may have sought to do what was best for their respective coalitions, the extent to which they were able to accomplish purely partisan motivations was complicated, compromised, and constricted by the influence of the rapidly growing (in population and, thus, in potential political importance as well) West on national politics. Indeed, the actions of both Webster and Van Buren reflect a delicate balance between defeating the partisan opposition and not alienating Western constituencies. By emphasizing the Western desire for circuit expansion (as opposed to the old Federalist-National Republican desire to abolish circuit-riding) and carefully considering how best to manage the popular (but politically dangerous) Westerner McLean, all while remaining open to a compromise with Van Buren's proto-Jacksonians that Westerners might oppose, Webster was perpetually looking for ways to benefit (or, at least, avoid actively antagonizing) both proto-Whigs and Westerners. By first expressing conditional willingness to add new (Western) circuits and new (Western) justices to the Court but later introducing amendments that ultimately killed the reform bill, Van Buren was simultaneously able to triumph over Webster and maintain to Western allies that he had tried to extend the circuit system to their states. The link between circuits and justices and the norm of geographically representative appointments—both products of the Judiciary Act of 1807—had made judicial reform potentially transformative and undoubtedly controversial, but the addition of a veto point independent of partisanship threatened to paralyze the task entirely. Absent a significant event to alter the political environment or a strategic political entrepreneur to navigate the landmines within it, the constraints imposed by the changing sectional politics of antebellum America, by the clash of proto-Whig and proto-Jacksonian political goals, and by the structure of the 1807 system poisoned any real chance of compromise.

The Failure of the 1820s

With much argument but little action, the debate over judicial reform in the early to mid-1820s thus “spent itself in talk.”Footnote ¹¹⁵ By the time John Quincy Adams declared in his third annual message to Congress in 1827 that “the extension of the judicial administration of the Federal Government” to the newly admitted states was a subject “of deep interest to the whole Union,”Footnote ¹¹⁶ even the “talk” had virtually disappeared. Indeed, before Andrew Jackson's election to the presidency in 1828, Congress took three remedial and largely uncontroversial measures to deal with specific problems of judicial administrationFootnote ¹¹⁷—lengthening the session of the Supreme Court by one month,Footnote ¹¹⁸ establishing procedures for taking evidence and issuing subpoenas,Footnote ¹¹⁹ and applying the forms of judicial procedure established in the Judiciary Act of 1789 to all states admitted sinceFootnote ¹²⁰—but the opportunity for an overhaul, extension, or reorganization of the entire system had evidently passed. Although the pressure placed on the existing system by territorial expansion, on the one hand, and the convergence between the National Republican administrations of Madison, Monroe, and Adams, and the nationalist impulses of Marshall, Story, and their Court brethren, on the other hand, had made substantial reform seem promising for almost a decade, landmark reform found itself doomed by the structural rigidity of the 1807 system.

The failure of reformers to overcome that structural rigidity during the 1820s meant that the judicial system continued to disintegrate under the weight of a growing caseload and the area of a growing nation. The defects of the 1810s and 1820s did not disappear on their own; in fact, they grew worse, and Westerners—having begged for full inclusion in the circuit system for two decades—grew more dissatisfied. Within a decade, the West would finally gain the circuits it long demanded, but the failure to reform the federal judiciary before the Jacksonian ascent meant that the resulting reform would occur at the expense rather than benefit of the nationalist, Northern, and abolitionist interests that appeared so close to victory in 1826.

The Politics of Prospective Appointments

Having reclaimed the White House in 1828, Democrats were eager to reward supporters and entrench their policy preferences in the judiciary by creating new Court vacancies for Andrew Jackson to fill with Democratic partisans. Jackson himself was a strong supporter of reform, urging legislators to act on the matter in three of his first four annual messages to Congress. In each address, he emphasized the inequity of excluding the West from the benefits of the circuit system, questioned why reform had yet to occur, and exhorted Congress to act. In 1829, he called the organization of the judiciary a “subject of high importance” and encouraged Congress to “extend the circuit courts equally throughout the different parts of the Union.”Footnote ¹²⁵ Two years later, he reminded legislators that the new states “demand circuit courts as a matter not of concession, but of right.”Footnote ¹²⁶ “If the existing system be a good one,” he asked in 1832, “why should it not be extended? If it be a bad one, why is it suffered to exist?”Footnote ¹²⁷ As a Westerner himself,Footnote ¹²⁸ Jackson desired reform for the West whether or not it meant additional Court appointments,Footnote ¹²⁹ but he preferred a reform plan that would allow him to pack the Court with like-minded Democrats.

After all, additional Democratic appointees on the Court likely meant more pro-Jacksonian and fewer anti-Jacksonian judicial decisions. With ostensibly pro-Jacksonian decisions in Willson v. Blackbird Creek Marsh Company,Footnote ¹³⁰Providence Bank v. Billings,Footnote ¹³¹ and Barron v. Baltimore,Footnote ¹³² it was clear that Jackson's defeat of Adams—and the concomitant realization by Marshall Court justices that they were no longer supported by the dominant coalition—had brought the golden age of John Marshall and judicial nationalism to an “abrupt halt,”Footnote ¹³³ but Democrats desired to solidify a true Jacksonian majority. Indeed, far from the impression given by Jackson's hostile (and almost certainly apocryphal) response to the Supreme Court's decision in Worcester v. Georgia Footnote ¹³⁴—“John Marshall has made his decision, now let him enforce it”—Jacksonians, who lacked a firm view on any public policy issue except Indian removal (hence Jackson's opposition to Worcester), did not oppose judicial power per se.Footnote ¹³⁵ They had never mentioned restricting federal jurisdiction in their national party platforms, and, once in office, they did not cooperate in the aggressive and repeated attempts to curb judicial power.Footnote ¹³⁶ In fact, during the Nullification Crisis,Footnote ¹³⁷ Jacksonians empowered the judiciary by passing the Force Act of 1833Footnote ¹³⁸ to overcome Southern defiance of the Tariff Acts of 1828 (the “Tariff of Abominations”) and 1832. Although the proximate goal was to suppress state uprising, the willingness to use the judiciary in the propagation of Jacksonian policy aims demonstrates that Jackson and his allies were hardly opposed to the exercise of judicial power or the enhancement of judicial capacity. Jacksonians did, however, object to instances where such power was used to expand or consolidate the power of the federal government. More concerned with limiting national power than with empowering states,Footnote ¹³⁹ Jacksonians imagined a small sphere of federal authority trumping a larger sphere of state authority. To the extent that they could shift the balance of power on the Court—either by replacing existing National Republican justices with Democratic appointees or by creating new seats to be filled by a Democratic president—the Jacksonian vision of limited federal government could be implemented more quickly.

It was the idea of a Democratic Supreme Court legitimating precisely this Jacksonian vision that prompted Whigs to pursue a different type of judicial reform. Like Democrats, Whigs wanted to improve the administration of justice and satisfy Western demands for the extension of the circuit system. Yet, as much as they wanted to place Western states on equal judicial footing with their Eastern counterparts, Whigs also wished to prevent Andrew Jackson from remaking the Court in his own image. With the 1807 link between circuits and justices still in operation, however, decoupling the performance benefits of Western reform from the political advantage Democrats would gain from a slate of new judicial appointments required expanding the scope of the judicial system and the area covered by it without adding new circuits.

The January 1835 resignation of Justice Gabriel Duvall, a Maryland resident who was responsible for the Fourth Circuit, and Jackson's nomination of Roger Taney, also a Maryland resident, to replace Duvall provided both an opportunity and additional motivation for such a plan. Jackson had, for several years, desired to appoint Taney to the Court as repayment for his Cabinet service, once noting that he owed him “a debt of gratitude and regard which I have not the power to discharge.”Footnote ¹⁴⁰ Jackson's “debt” stemmed from Taney's loyalty first in advising the president (as Attorney General) to remove government deposits from the Bank of the United States and then subsequently in carrying out (as Acting Secretary of the Treasury) the president's controversial orders to do so,Footnote ¹⁴¹ two actions that gave rise to Whig accusations that Taney was merely a Jacksonian sycophant.Footnote ¹⁴² Regardless of the depth of Jackson's affection for Taney or Whig enmity toward him, the matter of his appointment to the Court had largely been moot while Duvall—a fellow Marylander—remained on the bench. Regarding himself as bound by the post–1807 norm of geographically representative appointments, and reluctant to be accused of pressuring an aged Supreme Court justice to leave the bench, Jackson maneuvered to facilitate Taney's appointment by gently inducing Duvall's retirement. Seizing upon the evidently widespread knowledge that Duvall, who had been deaf for quite some time and had grown increasingly infirm during the 1830s but had delayed his retirement almost a decade out of fear about who might be appointed to replace him, was quite fond of Taney, Jackson seemingly authorized a “careful” leak from the Court's clerk to Duvall that the president was ready to nominate Taney to replace him.Footnote ¹⁴³ Upon hearing the news, Duvall retired immediately.

Whether or not they were aware of the president's back-channel politicking to enable Taney's nomination, Whigs were determined to forestall the appointment and utilized circuit reorganization—or, more precisely, circuit consolidation—to accomplish the task. The Whig consolidation plan, offered by New Jersey Senator Theodore Frelinghuysen, proposed three changes.Footnote ¹⁴⁴ First, it would combine two Eastern circuits—the Third (New Jersey, Pennsylvania) and the Fourth (Delaware, Maryland)—into one circuit. Second, it would establish one new Western circuit to include Louisiana, Mississippi, Illinois, and Missouri. Third, it would annex Alabama to the existing Sixth Circuit (South Carolina, Georgia) and Indiana to the existing Seventh Circuit (Kentucky, Tennessee, Ohio).

Under this plan, all states then admitted to the Union would be incorporated in the circuit system and the vacancy created by Duvall's resignation would be filled with a justice from—and a justice who would ride circuit in—the new Western circuit. With this new circuit effectively replacing the old Fourth Circuit, the number of circuits would remain at seven and, thus, the number of seats on the Court would remain at seven as well. Delaware and Maryland would no longer receive their own justice; rather, they would share one with New JerseyFootnote ¹⁴⁵ and Pennsylvania.Footnote ¹⁴⁶ Thus, to the extent that Jackson felt bound by the norm of geographically representative appointments, the proposed fusion of the Third and Fourth Circuits effectively prohibited the appointment of a resident of New Jersey, Pennsylvania, Delaware, or Taney's home state of Maryland to the Court.Footnote ¹⁴⁷

In sum, Democrats and Whigs each sought judicial reform for both performance and political reasons. On the level of performance, the two parties agreed that the extension of the circuit system to the West and some level of Western representation on the Supreme Court was a necessity. On the level of politics, however, the two parties vigorously disagreed, with Democrats seeking additional Court vacancies for Jackson to fill and Whigs desperately working to thwart the creation of those vacancies. The prospect of additional Court vacancies and the possibility of a Court dominated by Jackson appointees thus dominated debates about judicial reform during the early to mid-1830s. To the extent that Democrats and Whigs expressed any concern about the actual mechanics of the rival reform plans—the number of new circuits or the arrangement of states within those circuits, for instance—they did so largely because such mechanics had potentially transformative effects for the character of the Supreme Court and the future of federal judicial power more generally.

The Whigs' Last Stab

Though Jackson encouraged judicial reform on multiple occasions in the early 1830s, a slim Democratic Senate edge (25–23) in the Twenty-First Congress (1829–1831), a deadlocked Senate (24–24) in the Twenty-Second Congress (1831–1833), and a Whig Senate majority (28–20) in the Twenty-Third Congress (1833–1835) meant that reform authorizing new Jacksonian appointments stood little chance of success.Footnote ¹⁴⁸ Indeed, though the Senate Judiciary Committee tackled the issue in 1829Footnote ¹⁴⁹ and the House debated a plan offered by Judiciary Committee Chairman James Buchanan in 1830,Footnote ¹⁵⁰ the closest Congress came to reform prior to the Twenty-Fourth Congress (1835–1837) was the Whig consolidation plan of February 1835. Offered during the lame-duck session of the Twenty-Third Congress, the plan was debated in the final month of the Whigs' Senate majority and represented their last attempt at forestalling pro-Jacksonian reform. Indeed, two months earlier, in the wake of the 1834 midterm elections, Jackson's sixth annual message suggested that judicial reform was likely to be on the agenda in the Twenty-Fourth Congress:

To Democrats, Jackson's forceful statement, issued on the first day of the lame-duck session, was a directive to resume the campaign for new vacancies once the Senate returned to Democratic handsFootnote ¹⁵²; to Whigs, it was a warning that their period of obstructing Democratic reform—and their possibilities for pursuing their own reform—was about to end. Knowing that they were about to be out of power and that Democrats were likely to succeed in packing the Court with new Jacksonian appointments, Whigs offered the consolidation plan as their last stab at judicial reform.

Despite clear political motivations—namely, preventing the creation of several new Supreme Court vacancies and foiling Jackson's appointment of Taney—on the part of the Whigs, Frelinghuysen offered performance arguments in favor of the consolidation plan. Emphasizing that it was the Whig fear of an unwieldy Court, more so than the prospect of a thoroughly Jacksonian Court, that served as the “great and serious obstacle … in the way of the claims of the West,” Frelinghuysen maintained that consolidation circumvented the “difficulties and dangers of enlarging the Court to the number that was desired.”Footnote ¹⁵³ Moreover, he claimed, the plan not only remained within the structure of the 1807 system but also had the capacity to serve as a long-term corrective to the problems posed by territorial expansion and statehood admission:

Avoiding any talk of Taney or the possibility of new Court seats, Frelinghuysen attempted to convince the Senate that he had succeeded where others failed. The consolidation plan, he argued, solved the problems of judicial structure with an eye toward both present and future as well as concessions to both Westerners who demanded judicial representation and non-Westerners who worried about a large and unruly Court. “A door is now opened,” he hopefully remarked, “by which all these dangers are avoided, and a full and healthful operation shall be given to our judicial system.”Footnote ¹⁵⁵

Westerners, however, saw more problems than solutions. Even setting aside their most visceral objection of all—that the consolidation plan would provide only one Western circuit (and only one Western justice)Footnote ¹⁵⁶—Westerners failed to see Frelinghuysen's plan as either a permanent solution or a quick fix. As one of the West's more prominent politicians, Missouri's Thomas Hart Benton, for instance, objected to the size of the new circuits under Frelinghuysen's plan:

With such a sprawling circuit area to cover and not much time to cover it, Benton sarcastically wondered if “the judge might, in his journeys south, be transported by one of those flights of wild geese which periodically emigrate from the north, if he could manage to have his car attached to them.”Footnote ¹⁵⁸ In addition, he complained that the senators from Indiana, Illinois, and Alabama—all states affected by Frelinghuysen's plan—were not consulted,Footnote ¹⁵⁹ that such an important measure was “brought up here during a short session, and at the eleventh hour,”Footnote ¹⁶⁰ and that the plan deprived Louisiana—with its French-inspired civil law system—of having a circuit justice who could understand its laws.Footnote ¹⁶¹ As an alternative, Benton proposed establishing a Southwestern circuit composed of Louisiana, Alabama, and Mississippi; adding an eighth justice to the Court; and waiting until the census of 1840 before attending to the other Western states.Footnote ¹⁶²

Understanding that the Whig plan was simply a convenient way of disrupting the president's pending nomination of Roger Taney to replace Duvall on the Court and eagerly awaiting their own return to the majority,Footnote ¹⁶³ non-Western Democrats in the Senate joined their Western colleagues in mobilization against consolidation. Whether genuine or simply masking their desire to create new seats that would be filled by Jackson, Southerners, in particular, were vociferous in their opposition: Louisiana's Alexander Porter seconded Benton's worry about the absence of a justice who understood Louisiana's civil law systemFootnote ¹⁶⁴; Alabama's John P. King preferred circuit organization to remain “permanent in character”Footnote ¹⁶⁵; Mississippi's John Black threatened to abstain voting for the appointment of judges until the West was fully included in the circuit system.Footnote ¹⁶⁶ Following his complaint with a suggestion, Pennsylvania's James Buchanan argued that the proposed Western circuit was “far too extensive” with too many court sessions “very remote from each other” and instead proposed adding one Western circuit and one Southwestern circuit for a total of nine.Footnote ¹⁶⁷

In response to Buchanan's plan, Frelinghuysen, fearing the effects of allowing Jackson to fill two new justiceships (in addition to Duvall's vacant seat) and still hoping to preempt Taney's appointment, promptly offered an amendment to fuse his idea for combining the Third and Fourth Circuits with Buchanan's plan for two new circuits.Footnote ¹⁶⁸ While still providing a circuit and justice for both the West and the Southwest, this revised plan would have reduced the number of circuits and justices from nine (under Buchanan's plan) to eight, limited Jackson to two (rather than three) new appointments, and prevented Taney's appointment. After passing the Senate with a surprisingly bipartisan 36–10 vote in late February 1835,Footnote ¹⁶⁹ the modified consolidation plan moved on to the House with precisely one week left in the Twenty-Third Congress. Following a short debate about whether the measure should be committed to the Judiciary Committee or the Committee of the Whole, the House opted for the latter,Footnote ¹⁷⁰ but the bill was not actually debated until March 3—the final day of the session—and, even then, the House was preoccupied with interchamber negotiations over an appropriations bill.Footnote ¹⁷¹ With substantial disagreement about the Senate plan—Kentucky Whig Benjamin Hardin wanted nine circuits rather than eight,Footnote ¹⁷² Maryland Democrat Francis Thomas referred to the merger of the Third and Fourth Circuits as a “monstrous injustice” against the people of his state,Footnote ¹⁷³ New York Democrat Samuel Beardsley suggested constituting his state as its own circuitFootnote ¹⁷⁴—and other matters in need of attention, the House simply tabled the reform bill, foreclosing yet another opportunity at substantial judicial reform.Footnote ¹⁷⁵

As in the 1820s, then, judicial reform in the early to mid-1830s was characterized by failure; as in the 1820s, the interaction of sectional politics, divided government, and the structure imposed by the Judiciary Act of 1807—a structure that divided reform coalitions between those who were members of the president's party and those who were members of the opposition party—was once again largely responsible for that failure. Seeking to capitalize on their lame-duck majority, Senate Whigs pushed a modified version of judicial reform that would have denied Jackson a handful of new appointments, but House Democrats, realizing that their compatriots would reclaim control of the Senate in just a few weeks, strategically delayed consideration of the Whig plan until the last day of the session before killing it. With Whigs in control of the lame-duck Senate in the Twenty-Third Congress, judicial reform that offered new judicial vacancies for Jackson to fill was improbable; with Democrats in control of the House and set to regain control of the Senate in the Twenty-Fourth Congress, judicial reform that did not offer new judicial vacancies for Jackson to fill was equally improbable. Not least because Westerners remained dissatisfied with their continued exclusion from the circuit system and their lack of adequate representation on the Supreme Court, Whigs and Democrats agreed about the desirability of extending the circuit system to the West, but until they could also agree about the desirability (or lack thereof) of consolidating the Jacksonian majority on the Supreme Court (or until one party controlled the White House and both houses of Congress and thus could overcome partisan disagreement while appealing to Westerners at the same time), judicial reform remained trapped within a debate about the politics of prospective appointments.

Consolidating the Jacksonian Judiciary

While the performance-oriented desire to fix the structural problems that had plagued the federal judiciary since the Jefferson administration was undoubtedly a factor in prompting judicial reform, legislators sought reform when they did because of political concerns. That is to say, while extending the circuit system to the excluded Western states was still on the minds of legislators, judicial reform was pursued in 1837 primarily because Democrats hoped to consolidate the Jacksonian takeover of the Supreme Court. The Court, after all, had gradually grown more Jacksonian during the 1830s as Jackson consistently replaced Federalist and National Republican justices with Democratic ones. Indeed, with four deaths (Robert Trimble in 1828, Bushrod Washington in 1829, William Johnson in 1834, and John Marshall in 1835) and one resignation (Gabriel Duvall in 1835) over the first seven years of his presidency, Jackson had the opportunity to fill five high court vacancies prior to the Judiciary Act of 1837.

On all five occasions, Jackson followed Jefferson's precedent of geographic representation, though it was not always as simple as replacing the departing justice with an individual residing in the same circuit. Trimble, who had filled the “Kentucky seat” previously held by Thomas Todd, was replaced by former Postmaster General John McLean, a resident of Ohio, rather than Kentucky, but a resident of a Seventh Circuit state all the same. Washington, an Adams appointee whose time on the Court exceeded even that of Marshall's, was replaced by Pennsylvania's Henry Baldwin, a supporter of Jackson's 1828 presidential bid and a moderate politician whose appointment corrected a nearly three-decade-old geographic imbalance caused by the appointment of Virginia's Washington to replace Pennsylvania's James Wilson in 1799.Footnote ¹⁷⁸ Johnson, the justice who had defied Jefferson in the embargo dispute, was replaced by James Wayne, a congressman and former judge from Georgia. Marshall, the chief spokesman of the Court's nationalism, was replaced in the Court's center chair by Maryland's Roger Taney. Finally, Duvall, who had resigned (with some gentle encouragement from Jackson) due to deafness, and who Jackson had originally tried to replace with Taney only to have the Senate postpone consideration of the nomination (and attempt to eliminate the seat entirely), was replaced by Virginian Philip Barbour, a former Speaker of the House. Demonstrating the strength of the post-1807 norm of geographically representative appointments particularly clearly, Taney and Barbour arrived as a coupling, with Jackson, foiled in his first attempt to place Taney on the Court but determined to succeed on the second try, naming a Virginian (Barbour) to replace a Marylander (Duvall) in order to balance his simultaneous decision to name a Marylander (Taney) to replace a Virginian (Marshall).

With this gradual but consistent replacement of the Court's members, the later Marshall Court and then the Taney Court became more likely to limit the sphere of central government authority, carve out greater room for the exercise of state police power, and shift the emphasis of the Court's work from protecting individual property rights to providing for the welfare of the general community.Footnote ¹⁷⁹ Recognizing that Democratic justices could shape the constitutional landscape in a way that advanced their regime goals, Democrats were willing, eager, and suddenly able to guarantee that their appointees remained the majority, to extend the reach of Democratic ideology further into the future, and to make it virtually impossible for their Whig opponents (should they ever regain the majority) to balance the Court by adding more seats. Indeed, by converting a three-member majority (five Democrats out of seven justices) into a five-member majority (seven Democrats out of nine justices), Democrats hoped to ensure that the Court's decisions remained favorable to Jacksonian aims for a prolonged period of time.

Despite the renewed Democratic desire for reform, both pragmatic and political constraints plagued reform. Pragmatically, reform was inhibited by the fact that judicial organization was often left for the end of the legislative session or even the end of a particular Congress. Given the inevitable scramble in the closing days of a session to pass needed appropriations measures, conference over differing versions of bills, and send approved legislation to the president for his signature, the time and attention for judicial reform was limited. Politically, though the party system was still partly in flux, the Whigs had emerged as a potent minority party with a counterargument to Jacksonian and Democratic orthodoxy. With the two parties holding different policy positions on issues ranging from Indian removal to the Bank of the United States, they held different preferences about the types of judges that should be appointed to the Court. And, with the 1807 link between circuits and justices inextricably linking judicial reform to additional Court appointments, Whigs were hesitant to provide Jackson an opportunity to pack the Court with Democrats.Footnote ¹⁸⁰ Embroiled in the familiar politics of prospective appointments and against the backdrop of dwindling legislative time, judicial reform remained stalled until the final months of the Twenty-Fourth (1835–1837) Congress.Footnote ¹⁸¹

The Sudden Whig Surrender

When reform ultimately occurred on the last day of Jackson's presidency in 1837, it did so quietly rather than contentiously, with Democrats quickly pushing a bill through both houses of Congress and onto the president's desk with nary an obstacle or even a word of opposition from their Whig rivals.Footnote ¹⁸² While the historical record on Whig thinking about and intentions surrounding this episode is remarkably thin, it seems likely, given the Whig political outlook at the time, that some combination of three motivations—resignation, nobility, and strategyFootnote ¹⁸³—were instrumental in compelling the sudden Whig surrender.Footnote ¹⁸⁴

First, having lost control of the Senate in the 1834 midterm elections, there was, in a pragmatic sense, relatively little Whigs could do to obstruct Democratic will. Although Whigs could have engaged in dilatory techniques, the partisan balance was such that even delay would eventually be overcome, regardless of how much, how loudly, or how persuasively they resisted. Besides, by that point, Jackson had already appointed five of the seven justices—only Madison appointee Joseph Story and Monroe appointee Smith Thompson remained from the National Republican epoch—so “there no longer existed the fear that the addition of two new judges would change the complexion of the Court.”Footnote ¹⁸⁵ In other words, with or without new appointments, the direction of the Court seemed clear, and there was no longer anything Jackson's opponents could do to stop it. In this line of thinking, Whigs surrendered because there was no sense in fighting when they were almost certainly destined to lose anyway.

Second, with the prospect of Van Buren's defeat of William Henry Harrison in the presidential election of 1836 guaranteeing four more years of Democratic rule (thus dashing Whig hopes of filling any new justiceships themselves), there was some concern that expansion of the circuit system to the West could not be delayed until a Whig occupied the White House,Footnote ¹⁸⁶ a point brought into stark relief by the admission to the Union of Arkansas (in June 1836) and Michigan (in January 1837), the seventh and eighth states excluded from the circuit system. In the thirty years that had passed since the creation of the original Seventh Circuit, nine new states had been incorporated into the nation, but only Maine had fully been incorporated into the federal judicial system. In addition to emphasizing the legislative inaction of the 1820s and 1830s, the admission of new states underscored the fact that, though a solution had not yet been found, the problem would not soon go away—indeed, without action, it would only get worse. The previous years had witnessed massive growth in trade, finance, and transportation in the Western states; factories had been built, canals dug, crops planted.Footnote ¹⁸⁷ Yet while the need for the administration of justice inevitably grew, the apparatus for administering justice remained as it had been when the nation barely extended into Appalachia. The admission of new states, therefore, brought with it not only a reminder of past failures and renewed calls for reform but also a concrete increase in judicial business that could not be left unaddressed for much longer. In this line of thinking, Whigs surrendered because circuit disparities were sufficiently egregious and Western states sufficiently frustrated that they could not bear to stand in the way of much-needed and long-desired change simply because it would yield two new Supreme Court appointments for a Democratic president.

Third, with Western population steadily rising—increasing almost twelvefold since 1800, a period during which Northern population only tripled and Southern population barely doubled—and the recognition that a “union of sentiment” (as Webster phrased it in 1826) with the West would be desirable in various ways, Whigs no doubt saw strategic value in placating Western politicians. Whether because of the possibility of a Whig rebirth in Western states or because a friendly Western bloc could only serve to advantage the North vis-à-vis the South, Whigs may have seen serving Western interests (even if it also meant satisfying, at least on this particular issue, Democratic and Southern interests) as a short-term sacrifice for the potential of a long-term gain. In this line of thinking, Whigs surrendered because the costs of giving Jackson two new appointments in 1837 were considerably less than the costs of alienating Westerners when their support might be needed in larger battles for years to come.

Whether out of resignation, nobility, or strategy, the Whig surrender in early 1837 enabled landmark reform to overcome the multitude of pragmatic and political constraints upon it. Perhaps under different circumstances, an entrepreneur—a man like then-Senator James Buchanan, who was perhaps uniquely equipped with the knowledge, experience, reputation, affiliations, and networks to usher institutional transformation through a contested political environment—might have emerged to negotiate those constraints, but the two decades of failed reforms that preceded the Judiciary Act of 1837 meant that there were few new ideas to pursue and few new tactics with which to pursue them. Indeed, Buchanan himself had attempted reform on multiple occasionsFootnote ¹⁸⁸—actively campaigning for Webster's reform bill as a young House member in 1826, putting forth his own plan as House Judiciary Committee chairman in 1830, and then leading the charge against Frelinghuysen's consolidation plan as a senator in 1836—without much success.Footnote ¹⁸⁹ Though characterized by consensus about the need for improvements in the administration of justice, debates about judicial reform in the Jacksonian era were sufficiently replete with clashes over rival political goals that only the arrival of unified Democratic government, the slow erosion of Western patience, and the Whig realization that reform was either inevitable, necessary, or desirable were able to shatter the stalemate that had surrounded the subject for three decades.

Three Decades in the Making

The partisan alignment of both houses of Congress and the president—and the subsequent convergence of legislative and executive preferences about new Supreme Court vacancies—resulted in two new circuits, two new justices, and a wholesale reorganization of the circuit system. Three decades in the making, it was the most significant piece of judicial reform since the repealed Judiciary Act of 1801. Yet, in terms of lasting effects on the exercise of judicial power in antebellum America, the Judiciary Act of 1837 was important less because it extended the circuit system to the West than because it did so in a way that privileged not only Democratic interests but also Southern slaveholding ones heading into the sectional crises of the 1840s and 1850s.

Consider the following: of the twenty-six states in 1837 America, thirteen were slave states and thirteen free states,Footnote ¹⁹⁰ but of the nine circuits in the 1837 judicial system and the nine seats on the 1837 Supreme Court, five were allotted to slave states and four to free states (with one each of the slave and free circuits devoted to Western states).Footnote ¹⁹¹ (See Table 3 for circuit organization and Supreme Court representation following the Judiciary Act of 1837.) In fact, of virtually all the circuit arrangements considered in the 1820s and 1830s, the one implemented in 1837 was the single most favorable to slaveholding interests. The only scenario in which slave states would have fully composed more circuits was Daniel Webster's 1826 reform proposal. Under that plan, slave states would have fully composed six circuits, but, with the newly created seats set to be filled by John Quincy Adams, a president decidedly less concerned with Southern sensibilities than Andrew Jackson, the likely appointees may not have proved reliably pro-slavery.

Table 3.

Circuit Organization and Supreme Court Representation—Judiciary Act of 1837

* Indicates a Jackson—or, in the case of McKinley, a Van Buren—appointee.

Instead, with the statutory creation of the Court's eight and ninth seats occurring in 1837, Jackson was given the opportunity to fill the sixth and seventh high court vacancies of his presidency and to buttress the Court's existing Jacksonian majority with two Democratic—and, likely, pro-slavery—appointees. Though he was only able to fill one of these two new seats (appointing John Catron from his own home state of Tennessee),Footnote ¹⁹² Jackson's six appointments—the third-most of any president in American historyFootnote ¹⁹³—served a combined 138 years on the bench, with four of them lasting into the Civil War. Even with the Court's ninth seat still vacant, Jackson left office having appointed six of the Court's eight members. Viewed in these terms, it becomes clear that the Judiciary Act of 1837 marked more than the culmination of the long-standing campaign to reform the circuit system; indeed, it also marked the culmination of the Jacksonian reconstitution of the federal judiciary.

Rather than merely an instance of partisan entrenchment by Democrats, the Jacksonian reconstitution was enabled, first and foremost, by Westerners. It was Western insistence on three (as opposed to two) new justices for the Court and the placement of Ohio and Kentucky in separate circuits, not proto-Jacksonian resistance to granting new seats to Adams, that killed reform in 1826. It was Western opposition to the consolidation plan because it provided for only one additional Western circuit as much as or more than it was Democratic anger about the transparent Whig attempt to keep Taney off the Court that doomed reform in 1835. In both instances, the Western influence suggests that the preappointment politics of antebellum America were more forcefully driven by geography than partisanship, that the debates that occurred over judicial reform were not simply (or even mostly) a matter of one party against the other. By effectively exercising a veto in both 1826 and 1835, Westerners delayed reform until the point when Northern-sympathizing Whigs were no longer in power and no longer able to prevent Southern-sympathizing Democrats from simultaneously providing Westerners with the representation they desired and exploiting the system to their own advantage. Indeed, throughout this period, it is clear that Westerners, a powerful enough constituency to facilitate or forestall legislative action, were simply looking for the plan that promised them the greatest influence and most meaningful representation; as a result, they were willing to support either a Whig plan or a Democratic plan if it satisfied their desires and interests. While which plan (Northern or Southern) Westerners accepted mattered little to the West or its fortunes, the decision did have enormous ramifications for whether the system as a whole would benefit the North, as it later would under Lincoln, or the South, as it imminently would under Jackson.

Judicial reform did not end in 1837. Indeed, as the judicial system transitioned from seven circuits comprising seventeen states to nine circuits comprising twenty-six states, it required further institutional modification,Footnote ¹⁹⁴ administrative housekeeping,Footnote ¹⁹⁵ and sundry performance reforms.Footnote ¹⁹⁶ In response to an increase in both circuit and Supreme Court work and inevitable rumblings about the inadequacy of the existing system,Footnote ¹⁹⁷ legislators introduced resolutions about studying the judicial system and proposed bills to revise the circuit system further,Footnote ¹⁹⁸ but, as had been the case since 1801, circuit-riding endured. Congress did, however, make two remedial changes related to the practice. First, largely to appease Justice John McKinley (who had complained that the Ninth Circuit—Alabama, Arkansas, Louisiana, Mississippi—was too large for one justice to cover)Footnote ¹⁹⁹ and Martin Van Buren (whose third annual message to Congress suggested a remedy for the “great inequality in the amount of labor assigned to each judge”),Footnote ²⁰⁰ it redistributed the delicate circuit organization of states by shifting Fifth Circuit states Virginia and North Carolina into the Fourth and Sixth Circuits, respectively, and establishing Ninth Circuit states Alabama and Louisiana as the new Fifth Circuit.Footnote ²⁰¹ Although this rearrangement merely shifted the organization of states within wholly slave circuits and thus did nothing to alter the balance of power between free states and slave states in the circuit system more generally, it did leave the Court with two justices (Maryland's Roger Taney and Virginia's Peter Daniel) from the slaveholding Fourth Circuit and no justice from the slaveholding Ninth Circuit, thereby disturbing the post–1807 tradition of one justice—and one justice only—from each circuit.Footnote ²⁰² Each of the six subsequent appointments to the Court in the 1840s and 1850s, however, continued to respect the post–1807 norm by replacing each departing justice with a resident of a state from the same circuit,Footnote ²⁰³ thus perpetuating the Southern advantage in the Court's membership into the Civil War. Second, Congress required justices to attend only one term annually of each circuit court in their respective circuits and extended the Court's session by one month, thereby allowing the justices to spend more time disposing of the Court's many backlogged cases in the capital.Footnote ²⁰⁴ Both of these reforms addressed a concrete and specific problem—a geographically sprawling circuit or an overcrowded docket, for instance—but neither induced enduring changes in the character of federal judicial power. That character, of course, had been firmly established by the preappointment politics of the antebellum Supreme Court, and it was fundamentally Jacksonian, disproportionately Southern, and undeniably slaveholding.