Another Justice's seat left vacant 27 months as Tyler & Polk each make 2 failed appointments
Borkery, Burgery & Fortasy Football, Part IV: Warren-Fortas-Burger-Haynesworth-Blackmun

1852-53 Justice Replacement Took 8 Months, 4 Failed Appointments, New President From Other Party

Because an opposition-controlled Senate declined to act on Whig President Fillmore's first nomination, then rejected the next two, made after the presidential election, Justice John McKinley, who had died July 19, 1852, was not replaced until March 24, 1853. Another appointee, James Buchanan, had withdrawn his name from consideration, so the man who was finally confirmed was the fifth nominee, nominated by the new Democratic President. (Source: "At least 14 Supreme Court justices have been confirmed during election years", by  on

How could they have rejected two later appointments while still having failed to act on the first one? The only explanation that makes sense would be that the first one, like an unpassed bill, expired when that two-year Congress ended, and the next two were made to the new Congress while Fillmore remained in office until March 4. Or maybe Fillmore just saw that the first one was going nowhere and went ahead and made another nomination.

The new Justice, John Archibald Campbell, had been involved in the great Christmas Eggnog Riot of 1826 at West Point, which also involved Jefferson DavisRobert E. Lee, and a formal reading of the Riot Act. (Lee was only an innocent witness, of course: He's said to be the only cadet never to receive a single demerit.)

Dissenting from an 1854 decision that corporations had the same citizenship as their shareholders, Campbell wrote, “a corporation is not a citizen. It may be an artificial person, a moral person, a judicial person, a legal entity, a faculty, an intangible, invisible being,” but “it certainly is not a citizen.” He complained that corporations' "revenues and establishments mock at the frugal and stinted conditions of state administration; their pretensions and demands are sovereign, admitting impatiently interference by state legislative authority.” In another dissent, he said states should be allowed to change the tax laws affecting a corporation because the earlier laws in place when a corporate charter was granted were not a contract with the corporation. He distinguished “between the statutes which create hopes, expectations, faculties, conditions, and those which form contracts.” Dissenting in another, very similar case, he complained that the majority's judicial activism was elevating both courts and corporations over the rightful powers of the states, their people, and their legislatures. He warned that overly-protected corporations “establish on the soil of every state a caste made up of combinations of men for the most part under the most favorable conditions in society,” eventually spawning “a new element of alienation and discord between the different classes of society and the introduction of a fresh cause of disturbance in our distracted political and social system.” They “display a love of power, a preference for corporate interests to moral or political principles or public duties, and an antagonism to individual freedom which have marked them as objects of jealousy in every epoch of their history.” The majority finally came around to Campbell's position on corporate taxes in an 1860 opinion he authored.

Campbell's opposition to corporate citizenship, and support of states' rights to regulate corporations, were consistent with his fears of Negro citizenship and support of states' rights generally. In the Dred Scott case, he issued a separate concurring opinion, because he so strongly favored states' rights, and feared federal granting of citizenship, that he said the Supreme Court did not have the power to decide about Dred Scott's citizenship. In support of the Court's decision, he argued that despite the Constitution’s Territories Clause (Article IV, Section 3), Congress had never had power to regulate slavery in the territories because the Constitution gave it no power to legislate about slavery at all, and Congress's only role in the territories was to organize the institutions of self-government by the people; and that deciding an issue like slavery violated future states' right to decide such issues just as freely as the older states had, and be "on an equal footing" with the original states. And Southern states would never have ratified a constitution that they thought gave the federal government this power. (Though the 1787 passage of the Northwest Ordinance seems to indicate otherwise.)

While "riding circuit" in the 5th Circuit, he squelched private "filibustering" invasions of Cuba and Nicaragua. He resigned in 1861 to take a job in the Confederate Government. After the war he was a prominent opponent of Reconstruction. He returned to the Court as a lawyer to argue unsuccessfully for an expansive reading of the 14th Amendment in the Slaughterhouse Cases -- opposing New Orleans's granting of a monopoly to a new central slaughterhouse, forcing all other butchers to do business with it or not at all -- and opposing Reconstruction efforts in several other cases.


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