President Abraham Lincoln Orders the Appointment of a United States Supreme Court Justice, Likely the Only Appointment Order to the Nation’s Highest Court to Have Reached the Market in Decades

Bates has docketed the document, noting that he complied: a letter from President to Attorney General, with handwriting from both, ordering a Supreme Court nomination

Just deaccessioned by a major private collection, where it had remained for almost three decades; Miller is the only physician ever to serve on the United States Supreme Court

In the entire history of the United States, there have been only 112 persons to serve in the coveted position of justice of the U.S. Supreme Court. Abraham Lincoln appointed five of these. He first named Noah Swayne of Ohio as Associate Justice; Swayne thus became the first Republican elevated to the high court. He satisfied Lincoln’s criteria for appointment: commitment to the Union, slavery opponent (he had represented fugitive slaves in court), and geographically correct. Swayne is most famous for his majority opinion in Springer vs United States, which upheld the Federal income tax of 1864 used to fund the war. In 1862 Lincoln named his old Illinois friend David Davis as Associate Justice. Davis became famous for writing one of the most profound decisions in the Supreme Court history, Ex Parte Milligan. In that post-war decision, the Court set aside the death sentence imposed during the Civil War by a military commission upon a civilian found guilty of inciting insurrection. The Court held that since the civil courts were freely in operation, the trial of a civilian by a military tribunal was unconstitutional. In 1863 Lincoln selected Stephen Field, a pro-Union Democrat and a Westerner, to fill the open Supreme Court slot of Associate Justice. Field was one of the pioneers of the concept of substantive due process – the notion that the due process protected by the 14th Amendment applied not merely to procedures but to the substance of laws as well. He served for 34 years. Lincoln made his final Supreme Court appointment in 1864, when he named his Secretary of the Treasury, Salmon Chase, as Chief Justice. This placated the Radical wing of the Republican Party, and indeed one of Chase’s first acts as Chief Justice was to admit John Rock as the first African-American attorney to argue cases before the Supreme Court. He later held that the U.S. Constitution provided for a permanent union, composed of indestructible states. These men constitute appointments number one, three, four and five.

In July 1862 Lincoln had an opportunity to make his second Supreme Court appointment. He determined to name Samuel Freeman Miller as Associate Justice. Miller earned a medical degree in 1838 and practiced medicine for a decade. He remains the only physician ever to serve on the United States Supreme Court. He was, like Lincoln, a transplanted Kentuckian; an opponent of slavery and a Whig, he had removed to Iowa to find a more congenial place from which to oppose slavery. Miller was the first Justice born west of the Appalachians, and the first to live west of the Mississippi. His reputation was so high that Miller was confirmed unanimously in half an hour after the Senate received notice of his nomination. As a justice, his opinions strongly favored Lincoln’s positions, and he upheld Lincoln’s wartime suspension of habeas corpus and trials by military commission. Later, Miller held that the Federal government had broad authority to act to protect black voters from violence by the Ku Klux Klan and other private groups. He also supported the use of broad Federal power under the Commerce Clause as over-riding state regulations. In 1876, he served on the electoral commission that awarded the disputed electoral votes to the Rutherford B. Hayes. Justice Miller served for 28 years and participated in some 5,000 cases. He wrote the opinions on 600 of them, more opinions than any other Supreme Court Justice, leading future Chief Justice William Rehnquist to describe him as “very likely the dominant figure” on the Court in his time.

This is the original of Lincoln’s order to Attorney General Edward Bates to prepare the nomination for Miller. It has just been deaccessioned by an institution, where it had been ensconced for almost three decades. Autograph Order Signed as President, on “Executive Mansion, Washington” letterhead, July 16, 1862, to Bates. “Sir: Please send me nominations, of Samuel F. Miller, of Iowa, as a Justice of the Supreme Court, for the Circuit in which Iowa is included; and of Trigg (you have his first name) for District Judge in Tennessee. Yours truly, A. Lincoln”. Bates’ docket appears on the verso. Bates provided the nomination Lincoln requested that same day, whereupon Lincoln sent it to the Senate. It stated, “I nominate Samuel F. Miller of Iowa to be Associate Justice of the Supreme Court of the United States.”

It was, of course, as common as not for Lincoln to order appointments of more than one man at a time. Some years back we saw the order to appoint George G. Meade, later the hero of Gettysburg, a general in the Army of the Potomac; his was one of six names. Connally Findlay Trigg, who shared this letter with Miller, was a Virginia Whig who moved to Tennessee. During the secession crisis of 1861, he remained a steadfast supporter of the Union. Here Lincoln named him to the U.S. District Judgeship for Tennessee in replacement of a judge who had joined the Confederate judiciary.  Trigg was confirmed by the U.S. Senate the next day, July 17, and received his commission the same day. He served until his death in 1880.

Back in the early 1990s, the Raab Collection identified and acquired Grover Cleveland’s vellum appointment document of Rufus Peckham as Associate Justice of the U.S. Supreme Court. That remains the sole appointment document to reach the market in at least 40 years. While neither a presidential appointment order nor document, one other Supreme Court-related piece surfaced and merits mention. In 1793, President George Washington appointed Thomas Johnson an Associate Justice of the U.S. Supreme Court. Washington’s Secretary of State, Thomas Jefferson, wrote Johnson on Washington’s behalf to inform him of the appointment. The Raab Collection handled that as well.