Flashback, November 1874: GOP Midterm Losses Sound Uncertain Trumpet for Civil Rights

Stunned and staggered by the midterm elections, the Republican Party wrestled 150 years ago this month with what to do after losing control of the House of Representatives for the first time since before the Civil War.

Its solution—failing to enforce civil-rights measures that they themselves had enacted—was the opening note in a retreat from the Reconstruction program that President Ulysses S. Grant (pictured) had championed in the defeated Confederate states.

Their surrender would be formalized in the controversial Compromise of 1877 that enabled them to hold onto the White House for Rutherford B. Hayes at the price of withdrawing federal troops from the South.

The surprising magnitude of the GOP losses—"the greatest reversal of partisan alignments in the entire nineteenth century,” according to prominent Reconstruction historian Eric Foner—will feel uncannily familiar to Democrats this month: thinner margins of victory in regions they once won going away, and outright losses in other places considered party strongholds.

Dissatisfaction spread rapidly with the so-called Radical Republican faction, just as moderate Democrats have been heaping scorn on the “woke” segment of their party in the wake of Kamala Harris’ loss of the Presidency to Donald Trump.

Yet the 1874 Republicans, like the 2024 Democrats, fell victim to larger forces with often interlocking impacts on the electorate.

Midterm elections in Presidents’ second terms have been nicknamed “the six-year itch” because of voters’ unease with the party in power. 

The most significant of such losses have, in the case of 1874 as well as 1918, 1938, and 1966, abruptly curtailed reform eras. These epitomized the down points in what the late historian Arthur Schlesinger Jr. called “the cycles of American history.”

The 1874 midterms were particularly consequential, though, because they spelled the premature end of a biracial coalition that redefined the nature of citizenship, expanded voting rights, and sought to increase economic opportunity—with especially significant achievements in passing the Fourteenth and Fifteenth Amendments.

But southern whites rebelled at African-Americans gaining the right to vote and, even more so, winning public office. Despite President Grant’s crackdowns on the Ku Klux Klan, fraud, intimidation, and domestic terrorism had become openly practiced, even institutionalized.

The midterms—which converted the party’s 110-vote margin in the House into a Democratic majority of sixty seats, while giving the Democrats a net gain of 10 seats in the Senate— concluded an awful year for the Republicans and for the freedmen they had made it a point to protect:

*The Panic of 1873 (which I discussed in this prior post) carried over into the next year, resulting in reduced state budgets and lower tax rates, private contractors who leased convicts (the start of the “chain gang” system), and slashed funding for the public schools that had been a major achievement of biracial legislatures.

*Grant’s veto of an “inflation bill,” which had been passed by Congress to mitigate the impact of the depression, gave the Democrats a wedge among eastern immigrants and western farmers.

*The “Sanborn incident,” involving private collection of taxes and excises, engulfed Treasury Secretary William Richardson in scandal and solidified the Grant cabinet’s reputation for corruption.

*The July 1874 collapse of the Freedman’s Bank, with operations promoted by the federal government but assets not regulated or guaranteed by it, depleted the wealth of thousands of African-Americans, left them distrustful of the private sector in the long term, and fueled specious white racist claims that blacks were too ignorant and financially feckless to be trusted with state fiscal responsibility.

*The 1873 Colfax Massacre in Louisiana, precipitated by the contested gubernatorial election the year before, set off a firestorm of fraud, intimidation, and domestic terrorism by Democrats—as well as tensions among competing Republican factions— in southern states in 1874, most notably through the White League paramilitary organization that, in perpetrating violence against black officeholders and their white allies, effectively overthrew the governments of Louisiana and Alabama.

* Before the Civil War, white Northerners who went south to own, build, or manage slave plantations suffered little or no obloquy from their new neighbors. Now, however, because of their political alliance with blacks, they were stigmatized as “carpetbaggers” and, through the “Mississippi Plan”—devised in 1874 and implemented the following year—forced them either to switch from the Republicans to Democrats or leave the state.

When a political party loses its will, it runs the risk of losing its way—and that is exactly the situation in which the Republicans found themselves in the aftermath of the midterms.

The Radical Republicans, the party faction that had most zealously pursued racial equality and sought to enforce it in the South through the use of federal troops, increasingly lost favor with a Northern public that, with its minimal goals for the Civil War achieved (the end of slavery, restoration of the union), had no desire for racial equality.

As Ron Chernow noted in his biography Grant, the stinging setback his party was dealt at the polls meant that the new congressional Democratic majority, flashing its investigative powers, “turned a glaring searchlight on executive departments to ferret out corruption, a tactic used to discredit the administration on Reconstruction.” The new House Democratic committee chairs were now also empowered to stall additional pro-civil rights measures by the administration.

With his energy increasingly spent on combating this Congressional mischief and his anxiety rising that the Republicans would be punished further at the polls, President Grant now hesitated to employ federal troops on an indefinite basis against marauding Southern whites lest he be accused of “bayonet rule.”

With this backlash unpunished, Southern Democrats were well-launched on their program of “Redemption” of state governments from Republican rule. They were further aided by a Supreme Court that interpreted the 14^th Amendment broadly in one direction (defining corporations as “persons”) while narrowly construing its civil-rights protections for African-Americans.

It is well-known that, despite losing the popular vote, Republicans retained the White House in the 1876 election with a deal that secured an Electoral College victory in exchange for ending occupation of the Southern states. 

Yet corruption existed on the Democratic side, too, in a campaign of violence that further loosened Republican control of the Southern states.

“Time would reveal that 1874 inaugurated a new era in national politics,” writes Foner, “although one of stalemate rather than Democratic ascendancy.” With control of Congress split between the two parties, little important could get done in the next couple of decades.

As the ancillary rewards of an industrial economy beckoned, Republicans doffed their mantle as the rights-protecting “party of Lincoln” in favor of becoming the electoral home of Gilded Age robber barons.

Lacking the right to vote, blacks also were unable to gain patronage jobs that might have provided a ladder into the middle class, as well as informal welfare to cushion their losses in economic reversals.

The end of Reconstruction marked the dawn of legalized “Jim Crow” segregation—most entrenched politically in the South, but even economically in the North. It also gave rise to a disgraceful school of historiography that greatly exaggerated the failings of the Republican-led Southern governments in Reconstruction.

It would take W.E.B. DuBois’ 1935 masterful reassessment of the post-Civil War period, Black Reconstruction in America, 1860-1880, and especially the revisionist historians who more assiduously investigated the period beginning 20 years later, before the successes and failures of these governments could be more fairly weighed.

The residue of the failure to achieve genuine racial equality, however, continues to poison American politics, stymieing economic progress and encouraging extremism.

This Day in Civil War History (Death of James Longstreet, Lee’s ‘Old War Horse’—and a Scapegoat for Rebel Defeat)

Jan. 2, 1904— Lieutenant General James Longstreet died six days short of his 83^rd birthday in Gainesville, GA.  Acclaimed as one of the South’s best and bravest commanders during the Civil War, he ended up ostracized afterward by many comrades-in-arms for non-military reasons like joining the Republican Party, supporting the rights of freed slaves, and writing a defensive memoir in the postwar period.

So strong was the animus against him that the Daughters of the Confederacy voted not to send flowers to his funeral, and it was not until 2005 that he was honored with a statue at Gettysburg—and even then, its organizers stated, it was for his actions during the battle rather than his postwar conduct.

As Nikki Haley’s controversial comments last week about the cause of the Civil War indicate, Americans remain deeply divided about the conflict. And in the last century and a half, few figures have sparked as much division as Longstreet.

Advocates for “The Lost Cause”—the argument that the Confederacy’s role in the war was just and heroic—may have tried to plant disbelief that the conflict resulted from slavery, but they had no doubt that Longstreet had played a crucial role in the South’s eventual loss by carrying out Robert E. Lee’s orders on the third day at Gettysburg with insufficient vigor.

Yet the negative comments about Longstreet emerged overwhelmingly after the guns fell silent rather than before—indeed, Robert E. Lee referred to him affectionately as “my old war horse.”

From First Manassas to Appomattox, Longstreet served in all but one (Chancellorsville) of the major campaigns of the Army of Northern Virginia.

While not as aggressive as Lee’s other corps commander in the first two years of the war, Stonewall Jackson, the bluff, broad-shouldered Longstreet was arguably steadier and more consistent. 

Reflecting his preference for defensive warfare, his network of trenches, fieldworks, and artillery at the Battle of Fredericksburg, for instance, produced so many Federal casualties that it led to Lee’s famous remark, “It is well that war is so terrible, or we should grow too fond of it.”

In May 1864, Longstreet was mistakenly fired on by his own men near the start of the Battle of the Wilderness. Had he died from his wound, as Jackson had done in a similar incident near the same spot the year before, he would have joined Stonewall in the Valhalla of Confederate martyrs.  

Instead, while he could not assist Lee for five months in this critical campaign, he survived, albeit with a right arm paralyzed for life. 

To his own surprise as much as anyone else’s, this diehard who had strongly urged his commander not to surrender at Appomattox started to soften towards the North when he saw Ulysses Grant’s generous peace terms.

Subsequently, in advocating that Southerners should cooperate with the victorious North in rebuilding the region, defending former slaves from threats to their lives and rights, and questioning the ongoing deification of Lee and Jackson, Longstreet was reviled as a traitor—or, in the parlance of the time, a Southern “scalawag” who collaborated with Northern “carpetbaggers” in inflicting a vengeful peace and African-American leaders on whites.

Several factors led to the disaffection that so many Southerners began to feel for Longstreet:

*A June 1867 letter to the New Orleans Times, in which Longstreet advocated obedience to recent Reconstruction legislation—and even join the Republican Party—as a Union victory meant the issues that had divided the country previously were now settled. (See Patrick Young’s Nov. 2019 post from “The Reconstruction Era” blog for the text of the letter, as well as contemporary responses to it.)

*His nomination by his old friend Grant, whom he supported for President in 1868, to be the Surveyor of Customs for the Port of New Orleans, a political appointment seen as being to his advantage.

*His leadership of the biracial Louisiana militia and the New Orleans Metropolitan Police—service that came to an end when these forces were overwhelmed in a September 1874 insurrection by thousands of white supremacists at the “Battle of Liberty Place,” requiring federal troop intervention.

* General Jubal Early and William Pendleton, Lee’s artillery chief, castigated Longstreet in the 1870s for not launching a dawn attack on the Union at Gettysburg on the second day of battle. With Lee dead and no other proof available, the charge shouldn’t have stuck (particularly since Early and Pendleton had their own reasons for deflecting attention from their failures during the battle). But with his two critics not letting go—and with Longstreet himself increasingly resentful of how the reputations of Lee and Jackson were being exalted at his expense—the “old war horse” responded in a flurry of charges and countercharges, first in periodicals, then when he was 75 in an 800-page memoir that his enemies mined for inaccuracies and self-serving charges of his own.

For years, the Early-Pendleton side was supported by the likes of Douglas Southall Freeman in his Pulitzer Prize-winning biography of Lee. Only in the 1950s and 1960s did revisionist historians begin to look more critically at Early, Pendleton, and to a lesser extent, Lee.

In the last 40 years, biographers such as William Garrett Piston, Jeffrey Wert, and Cory Pfarr have offered more balanced appraisals of Longstreet’s military record, absolving him of charges of incompetence at Gettysburg and accepting that he was right in strongly urging Lee not to make the last disastrous assault on Day 3. 

This past fall, Univ. of Virginia historian Elizabeth Varon rendered an additional service to scholarship with Longstreet: The Confederate General Who Defied the South, which concentrates more on his postwar career than his service with the Army of Northern Virginia. In the process, it explains how prior misjudgments of Longstreet were based more on politics than on documentation or the context of events.  

But in the court of public opinion, Longstreet may have received significant support less from academic studies than from a 1974 novel. Michael Shaara’s account of the turning point of the war, The Killer Angels, won the Pulitzer Prize for Fiction, was adapted into the 1993 film Gettysburg, and inspired Shaara’s son Jeff to write other novels about the war in which Longstreet figured.

The Killer Angels and Gettysburg have led many readers to reevaluate conclusions about Longstreet that had seemed settled for nearly a century. They argued more convincingly for the general than he was able to do for the last three decades of his life.

Flashback, April 1871: President Grant Strikes at KKK

With violence aimed at suppressing African-American voting rights rising alarmingly in the South, Ulysses Grant signed the Ku Klux Klan Act, giving the President a weapon to stamp out the first major domestic terrorist organization after the Civil War.

The Federal oversight and intervention called for in the Ku Klux Klan Act (or, as it was formerly called, the Third Enforcement Act) was unprecedented, but so was the threat posed to American citizens in the former Confederacy during Reconstruction. 

If the issues surrounding this threat in the postbellum South—access to voting rights, a white-dominant party seeking to retain its entrenched privilege, and extremists resorting to new violent methods to check the rising power of African-Americans—sound familiar to contemporary readers, they should.

The remnants of the defeated slave states didn’t waste time trying to reconfigure their old social, political and economic order through new means of subjugating African-Americans. The Ku Klux Klan (KKK), founded in 1866 by Confederate Gen. Nathan Bedford Forrest, had evolved two years later from a fraternal order into a violent, secret one that, under white robes, hoods and the cover of night, sought to:

*whip freedmen who violated the code of white superiority (e.g., refusing to take off one’s hat in the presence of whites, interracial couples);

*kill African-Americans who exercised the right to vote, or their white Republican allies; and

*intimidate other members of these groups into silent compliance.

Passage of the 14^th and 15^th Amendments, ensuring “due process of law” and voting rights for all citizens, respectively, only increased the tempo of the violence, which reached highs especially before elections.

Two prior Enforcement Acts, adopted in 1870 and early 1871, authorized the appointment of election supervisors to counteract electoral fraud, bribery and intimidation of voters, and conspiracies to prevent the exercise of constitutional rights, and strengthened enforcement powers in large cities.

Initially, President Grant hoped this would be enough to curb the terror. Yet, as Congressional testimony revealed, violence continued, with witnesses reluctant to testify for fear of retaliation, Klansmen unwilling to inform on each other, and juries refusing to convict in those cases brought. 

Nor were politicians in the South able or often even willing to intervene: Democratic officeholders, if not KKK members, were often sympathetic to it, and Republican governors feared that using African-American troops would only start a race war.

Initial postwar legislation had left the prosecution of private criminal acts to local law enforcement. But with the new legislation, the federal government was stepping in.

To Democrats, the new legislation came to be nicknamed “The Force Acts”. In particular, they complained that the Ku Klux Klan Act authorized the suspension of habeas corpus—i.e., suspects would be arrested and held without bail—declarations of martial law, and the use of federal troops to arrest violators of the act and to break up “bands of disguised marauders.”

This portion of the legislation was the most legally and politically problematic. During the Civil War, Abraham Lincoln had suspended the writ of habeas corpus, arguing the move was necessary to quell the rebellion. 

Although the Supreme Court had been reluctant to deal with the issue while the war was raging, it ruled a year after its conclusion, in Ex parte Milligan, that the President did not have the authority to apply military tribunals to citizens when civil courts still operated. How much it would ignore the Grant Administration’s treatment of habeas corpus was uncertain.

Even members of Grant’s own party were not all behind the legislation. So-called “moderate Republicans” such as Lyman Trumbull expressed grave doubts about its constitutionality, and members of the President’s own Cabinet privately complained about listening to Attorney General Amos Akerman report frequently on KKK depredations in the South.

But those directly facing the terror argued that these were legal niceties and action must be taken. Grant was particularly careful to use his powers concerning habeas corpus sparingly, in only nine South Carolina counties. Yet, under Akerman’s aggressive and inspired leadership, other provisions in the legislation were used to the hilt, with federal grand juries bringing approximately 3,400 indictments against the KKK, resulting in more than 1,100 convictions.

Although Southerners saw Grant as doing too much in the South, Radical Republicans such as Sen. Charles Sumner believed that he had done too little, and very late even at that. But within the sphere the President had determined, he had moved decisively.

As historian James M. McPherson observed in Ordeal By Fire: The Civil War and Reconstruction: “The government’s vigorous action in 1871-1872 did bring at least temporary peace and order to large parts of the former Confederacy. As a consequence, the 1872 election was the fairest and most democratic presidential election in the South until 1968.”

With adverse Supreme Court decisions and the withdrawal of Federal troops from the South after the 1876 election, Southern whites were able increasingly to roll back the political and economic gains of freedmen.  

As for the KKK, it has reemerged three different times since then: in the decade after the 1916 film Birth of a Nation, when it broadened its terror campaigns to encompass Roman Catholics and Jews as well as blacks; in the midcentury civil-rights era, when it concentrated again largely on African-Americans; and in the last four years, as part of a larger nationalist movement that has grown 55%, according to a 2020 report from the Southern Poverty Law Center.

The Ku Klux Klan Act, while little enforced for much of the 20^th century, now forms Section 1983 of the United States Code and is the basis for federal civil rights lawsuits across the country, according to Nicholas Mosvick's blog post for the National Constitutional Center.

It has become even more relevant as the basis of a lawsuit against former President Donald Trump and ally Rudy Giuliani for allegedly conspiring with a pair of hate groups to storm the U.S. Capitol and block the Electoral College count in January.

Photo of the Day: A Black Reconstruction Senator’s Residence in Washington, DC

The striking property here—2010 R Street, Northwest—might look much like any other in DC’s elegant Dupont Circle neighborhood. But the marker outside indicates another story.

When I passed by while on vacation in November 2015, I never could have anticipated that the life and times of Blanche Kelso Bruce—born on this date in 1841—might possess even more relevance now than it did when I read the inscription explaining why his home had been selected as part of the African American Heritage Trail in our nation’s capital.

Bruce was one of the most striking figures in the Reconstruction Era, the post-Civil War period when freedmen sought greater economic opportunities and achieved fleeting political equality with whites. In an era of polarization, with racism and reaction ever-present threats to his gains and those of the base that propelled him to prominence, he was obliged to step carefully through multiple political minefields.

This past week, I saw a meme on Facebook questioning the need for Black History Month. The remarkable rise of Bruce—the second African American to serve in the U. S. Senate and the first to be elected to a full term—and his equally astonishing fall back into relative obscurity demonstrate that there might be more need for this collective commemoration than many Americans would care to admit.

A runaway slave from Virginia, fathered by his white master, Bruce made his way west of the Mississippi, where during the Civil War he taught black children in Kansas and Missouri. After the conflict he worked as a steamboat porter out of St. Louis, then moved down to Mississippi in hopes of finding more opportunity. His business sense proved acute, as he turned an abandoned cotton plantation into a thriving property over the next decade.

Large, imposing, and gifted with a strong voice, Bruce possessed a charisma that attracted the attention of the Republican Party. Soon he was accumulating political IOUs along with his real estate fortune, holding simultaneous Bolivar County offices as sheriff, tax collector and superintendent of education. With the help of Black Republicans and Gov. Adelbert Ames, Bruce was selected by the state legislature to serve a term in the U.S. Senate.

With both blacks and whites suffering in the economic collapse brought on by the Civil War, Bruce sought to work in the interests of both groups and forge a biracial electoral coalition. For whites, he advocated for internal improvements and financial incentives, including federal funding to control flooding and the creation of a channel and levee system for parts of the Mississippi’s edge. For blacks, he ardently promoted black servicemen, including pressing for integration of the armed forces.

But as an “aristocrat of color,” Bruce lost some favor with his African American base, and whites were not generally inclined toward him to begin with, even though even the likes of fellow Mississippian Lucius Q. C. Lamar, a former secessionist, acknowledged his intelligence and moderation. With Democratic forces gathering strength back at home in an attempt to suppress the African American vote, Bruce didn’t even try for a second term, stepping down in March 1881.

After several years of continuing participation in Mississippi politics, Bruce returned to the nation’s capital. serving as register of the U.S. Treasury and recorder of deeds for the District of Columbia. He and wife Josephine—the first black teacher in the Cleveland public schools and the daughter of a prominent mixed-race dentist before she wed the Senator—remained fixtures on the local social scene, living at their R Street property from 1890 to 1898.

Bruce’s career is a reminder of how far all Americans can rise when they are presented with adequate opportunities to match their own drive and ambition. It is also evidence of how those gains may be lost when powerfully entrenched forces mobilize to exploit fears of an uncertain new political and social environment.

Quote of the Day (David Blight, on America’s Two Rights Revolutions and Their Reverses)

“Today, Americans live in a country forged by Reconstruction and remade again by the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the profound social movements that forced their passage. Pluralism and equality were born and reborn in those two revolutions, which took place a century apart. But the events of recent years, especially during the Trump era, serve as a reminder that no change is necessarily permanent and no law can itself save protect Americans from their own worst impulses: racism, nativism, authoritarianism, greed. The past few years have revealed the potency of sheer grievance, whether born of genuine economic travail or ludicrous conspiracy theories. It should be clear to all now that history does not end and is not necessarily going to any particular place or bending in an inevitable arc toward justice or anything else.”—Yale historian David W. Blight, “The Reconstruction of America: Justice, Power, and the Civil War’s Unfinished Business,” Foreign Affairs, January/February 2021

(The image accompanying this post is an engraving of the Freedmen’s Bureau, a post-Civil War attempt to help millions of former black slaves and poor whites in the South.)

This Day in Reconstruction History (TR-Boosted Lynch Becomes 1st African-American Party Chair)

June 3, 1884—In a Republican National Convention mirroring the deep racial divisions of the nation, the delegates selected John R. Lynch of Mississippi—a three-term Congressman continually fighting white supremacy in the post-Civil War South—as Temporary Chairman. 

The title, though largely honorific, still represented the last time an African-American would be named a party chairman for the next hundred years—just as, at the same gathering, Lynch would become the only African American to deliver a keynote address at a national political convention until 1968.

At the convention, Lynch impressed two young politicos who became friends and would go on to lead the GOP at the start of the 20^th century, Theodore Roosevelt and Henry Cabot Lodge (a future President and Senate Majority Leader, respectively). 

Alarmed at the National Committee’s nomination of Arkansas’ Powell Clayton—a byword for corruption in his state—to the chairmanship, they had stayed up the night before, buttonholing delegates to switch their votes to Lynch. 

By nominating Lynch—and in persuading delegates to make the unprecedented move—TR, in his first appearance on the national stage, was already serving notice that he would not be bound by the normal partisan rules. (The story of that little-known convention fight is told by Jon Knokey’s Theodore Roosevelt and the Making of American Leadership.)

Son of an Irish immigrant overseer and a female slave, Lynch successfully managed a photographer’s studio, then invested in local real estate. 

Still just a decade and a half before, Lynch—then only in his early 20s—was a political star, rising successfully from a local justice of the peace to speaker of the Mississippi House of Representatives to Congressman. 

His increasing marginalization since then symbolized the larger fate of African-Americans in an America that had abandoned its Reconstruction experiment in postwar racial justice.

Throughout his six years in Congress, Lynch pushed for several important pieces of legislation, including:

*funds to reimburse a Natchez orphanage damaged in the war;

*appropriations to improve the shoreline of the Mississippi River;

*dividing the state into two judicial districts; 

*laws to reimburse depositors who lost money when the Freedmen’s Savings and Trust Company failed;

*appropriations for a National Board of Health; and 

*supporting the Civil Rights Bill of 1875.

In advocating for the Civil Rights Bill, Lynch was especially cogent. While denying any inclination on the part of African-Americans to mingle in the social life of whites, he still denounced the indignities heaped upon his race by segregated public accommodations and public transportation.

Systematic disenfranchisement of African-American voters meant that Lynch could not hold onto his congressional seat. Sometimes the methods were blunt: threats and killings of those who exercised the franchise, for instance. Other times it was more subtle, such as “grandfather clauses” forbidding the vote to anyone whose grandfather was not a citizen, or literacy or property tests administered inequitably between the races.

For the remaining half-century of his life, as white America retreated further from the struggle for civil rights for all, Lynch fought a rear-guard action. He had used words, in Congress and at the GOP convention, to advance the cause of African-Americans and their GOP allies, and from now on he would use words to puncture holes in the negative thinking of historians then taking hold.

Jim Crow legislation, aided by adverse Supreme Court decisions, continually eroded the gains won under dire circumstances by Lynch and other freedmen. By the time of his death in the late 1930s, African-Americans may have been plunged into the deepest heart of the abyss, as they could not enact even anti-lynching legislation. He was, in fact, working on a defense of Reconstruction at the time of his death.

The fate of Lynch and other freedmen are coming increasingly into the history books as a result of a new understanding of Reconstruction that flowered with the civil-rights movement approximately 60 years ago, demonstrated most recently by Stony the Road, Henry Louis Gates Jr.’s book-PBS documentary tie-in.

Flashback, April 1869: Supreme Court Number of Justices Set at Nine

With a new President more amenable to its agenda in April 1869, the Radical Republicans who controlled Congress increased the number of Supreme Court justices to nine, a figure that has endured to the present, though not without some challenges.

From the inauguration of George Washington in 1789 to that of Ulysses S. Grant 80 years later, the number of justices changed six times. That shifting history was forgotten during the firestorm of controversy in 1937 when Franklin Roosevelt presented his “court-packing” scheme (i.e., appointing an “assistant” with full voting rights to any justice who would not retire after age 70).

The number of justices has become something of an issue again in recent weeks as Democratic Presidential candidates have floated proposals to “fix” the court. Frustrated over the shelved nomination of Barack Obama appointee Merrick Garland and Donald Trump’s successful placement of Neil Gorsuch and Brent Kavanagh on the high court, they have cast about for a solution that would counter potentially decades of right-wing domination of the judiciary.

Kamala Harris, Kirsten Gillibrand, and Elizabeth Warren all told Politico that they'd consider expanding the size of the Supreme Court. Pete Buttigieg, Mayor of South Bend, Ind., has presented the most concrete proposal for returning to something like bipartisan in the confirmation process, advocating giving Democrats and Republicans the same number of seats on the bench (5 each) with the combined 10 choosing another five among themselves.

Amid all this hullabaloo, it might be worthwhile revisiting another historically fraught period of Congressional-Supreme Court relations: the 1860s. Arguably, the dominant event of the decade—the Civil War—became, in the phrase of the time, an “irrepressible conflict” because of the high court’s divisive Dred Scott decision. 

The thought that Abraham Lincoln’s Southern successor in the White House, Andrew Johnson, might move the court toward postwar disenfranchisement of African-Americans led the Radicals in Congress to reduce the number of justices from 10 in 1863 till only six by 1866.

This meant that when the President did have someone in mind to fill a seat on the bench—former Ohio attorney general Henry Stanbery—the nomination was virtually dead on arrival, especially following the rumor that Stanbery had drafted the President’s veto of the Civil Rights Act.

It quickly became apparent, though, that by striking a blow against Johnson, the Radicals only impaired the overall functioning of the judicial system. For years, the justices, in addition to their regular court duties, were expected to serve as circuit judges within particular geographic jurisdictions. This had been a bone of contention for aging jurists dating back to the founding of the republic. (Indeed, John Jay, the first Chief Justice of the Supreme Court, refused reappointment to the bench because he did not want to deal with this again.)

By the 1860s, the admission of California to the Union, and the possibility of more states entering soon, meant that the justices would have to ride even longer distances than they had previously. 

And even without the greater demands made by this additional travel, the transformation of the republic had placed additional strains on the judicial system. Not only had the expansion in geography to the Pacific Ocean produced more litigation, but so did the consequent growth in business and in government itself, as the federal government created new powers to quell the far-flung rebellion that broke out in the Confederacy, as well as the counter-revolution that sought to deny the new class of freedmen their rights in the Reconstruction period.

All of this created such an untenable situation that a bipartisan consensus for reform actually developed. Senator Lyman Trumbull of Illinois was able to secure solid majorities among Republicans and Democrats in passing the bill. At one fell swoop, by adding an intermediate level of circuit courts between the Supreme Court and the district court and by boosting the Supreme Court number of justices to nine, the legislation was able to relieve pressure on the highest court in the land and ensure a greater federal presence in southern states that were resisting Reconstruction.

While Republicans played games with the court’s composition in the 1860s, Franklin Roosevelt was willing to do so at the start of his second term, in frustration over all the New Deal legislation that the high court held unconstitutional. It should be remembered, though, that even at the height of the President’s popularity, members of his own party were willing to stand up to him and make him back down in a humiliating defeat.

Three years ago, Republicans breached any possibility of a bipartisan approach to the confirmation process by refusing even to act on the nomination of Garland. They have now invited a furious reaction by Democrats.

On one point, the Democrats are correct: nothing in Article III of the Constitution sets out a specific number of justices. On the other hand, changes in the number of justices have served as a marker for the politicization of the high court—and, once the electoral tides have turned, can be used against the party that proposed the change in the first place.

(The image accompanying this post, taken in 1869, is believed to be the first photo of the justices of the Supreme Court.)