Swayne, Noah H. (1804–1884)

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SWAYNE, NOAH H. (1804–1884)

Noah Haynes Swayne was the first of President abraham lincoln's five Supreme Court appointees. Geography, antislavery credentials, and support for the Union constituted Lincoln's chief criteria when he made his first appointments to the Court. Swayne fulfilled these qualifications.

Because of his hostility to slavery, Swayne left his native Virginia and in 1823 moved to Ohio, where he served in the state legislature. In 1830 President andrew jackson named him United States Attorney. During the next several decades, he continued his active political career, and he appeared as counsel in a number of fugitive slavery cases. In 1855, he joined the fledgling Republican party and became a leading figure in the Ohio group. His close friend, Justice john mclean, had suggested Swayne as his successor. When McLean died early in 1861, Swayne quickly marshaled support from leading Ohio Republicans; Lincoln appointed him in January 1862.

On the Supreme Court, Swayne enthusiastically supported the administration, approving of Lincoln's blockade of southern ports in the prize cases (1862), upholding the Legal Tender Act of 1862 in Roosevelt v. Meyer (1863), and sustaining military trials in ex parte vallandigham (1864). After the war, in ex parte milligan (1866), he joined the Court's minority faction which declined to discuss the question of congressionally authorized military tribunals.

During reconstruction, Swayne again demonstrated consistent support for the congressional Republican program. For example, he dissented in the test oath cases (1867), and he voted to decline jurisdiction in the unreported case of Mississippi v. Stanton (1868), when the Court divided evenly on whether to take another case that might have decided the fate of the Reconstruction program. Perhaps Swayne's clearest deference to congressional determination of Reconstruction was expressed in his dissent in texas v. white (1869). He rejected the majority fiction that Texas was not out of the Union and insisted that Texas's relationship to the Union must be determined by Congress. Swayne recognized that the fourteenth amendment had been designed in part to benefit the freedmen, as evidenced by his vote in strauder v. west virginia (1880), striking down racial discrimination in jury selection. Yet he repeatedly supported the Court's narrow construction of the fifteenth amendment, thus limiting black voting rights.

After the civil war, Swayne continued to back Republican programs. He dissented when the majority struck down the legal tender laws in 1870, but the next year he joined the new majority that reversed that decision. (See legal tender cases.) A decade later, just before his retirement, Swayne delivered the Court's opinion in springer v. united states (1881) upholding the Civil War income tax. He impressively rejected arguments that the tax confiscated property without due process of law and that it was a direct tax, and therefore need not be apportioned among the states according to population. That decision subsequently was temporarily overruled in pollock v. farmer ' s loan and trust (1895), but Swayne's opinion generally is regarded as the more historically valid.

In its time, Swayne's opinion in gelpcke v. city of dubuque (1864) had enormous influence. Speaking for the Court, Swayne held that a state court could invalidate a lawfully controlled municipal bonding arrangement. The decision left countless municipalities responsible for maintaining railroad financing, despite popular protests against the practice as well as deceitful activities on the part of the railroads. Later, Swayne joined joseph p. bradley, stephen j. field, and salmon p. chase in dissent in the slaughterhouse cases (1873). Swayne's dissent lacked the elaborate rhetoric and logic of the Bradley and Field dissents, but he invoked the same mystical faith in the sanctity of property.

Swayne ranks as an ordinary Justice, not greatly appreciated even in his own time. His colleagues disapproved of his aggressive campaigning for the Chief Justiceship in 1864 and 1873, and he remained on the bench long after his physical and mental capacities had noticeably declined. He wrote few major opinions in his two decades on the bench.

Stanley I. Kutler


Fairman, Charles 1939 Mr. Justice Miller and the Supreme Court, 1862–1890. Cambridge, Mass.: Harvard University Press.

Gillette, William 1969 Noah H. Swayne. In Leon Friedman and Fred L. Israel, eds., The Justices of the Supreme Court, Vol. 2:789–1010. New York: Chelsea House.