Opinion | This Is How to Put the Supreme Court in Its Place
“For the Chief Justice,” Walter Stahr explains in Salmon P. Chase: Lincoln’s Vital Rival, “the Milligan case only partially related to recent events in Indiana; it was also about the reach of federal violence in the violent present. Chase was aware that the state civil courts in many parts of the South offered no protection to black people; only the military courts would punish whites for crimes against blacks.”
Republicans in Congress, still battling Johnson for control of Reconstruction policy, were outraged. The Chicago Tribune spoke for many Republicans when it said that decision — along with another affecting the ability of Congress and states to require an oath of allegiance, or “test,” from ex-Confederates serving in public capacity wanted to serve – a “deliberate” decision shows the Supreme Court’s purpose to usurp the government’s legislative powers to defeat the will of the loyal men of this nation in the interests of a rebellion crushed by military might.”
The solution to this problem, The Tribune wrote, was simple: “We believe the time has come for Congress to pass legislation that requires the approval of three-fourths or at least two-thirds of the entire Bank to materially oppose.” the constitutionality of every act of Congress.”
Republicans took note of the argument. In 1868, while Congress awaited the court’s decision on another case, Ex parte McCardle, which might undermine its military reconstruction policy, the House debated a bill which, according to The New York Herald, “would require a two-thirds approval of all members, necessary to make a determination contrary to the validity of a United States law.”
Democrats condemned the bill as one of the “most serious” of all “revolutionary measures presented to the last or current Congress designed to undermine and destroy the country’s institutions.” If Congress could overrule the “premeditated judgment of the United States Supreme Court,” said Illinois Representative Samuel S. Marshall, as recorded by The New York Times, “then a despotism would be established, not of one man, but of one.” Oligarchy or a mob, elected by the people but seizing power that neither the constitution nor the people gave them.”
Rep. John Bingham of Ohio, a 14th Amendment author and Republican, disagreed. “It would be a sad day for the American institutions and for the sacred cause of Republican governments if any tribunal in this country, created by the will of the people, stands above the power of the people.” The Supreme Court, he continued Referring to his decision in Dred Scott v. Sandford, “had disgraced not only himself as a tribunal of justice, but mankind when he dared, from his high seat of justice, the terrible blasphemy that men are.” , either in this country or in any other country whose rights white men are not required to respect.”
The law passed the House and Senate but was never enacted. President Johnson simply refused. In February, the House of Representatives voted overwhelmingly to impeach Johnson, who was eventually acquitted by a single vote in the Senate. After that, as far as I can tell, Republicans in Congress made no further effort to push the issue.