divided Congress had passed the Indian Removal Act.[49] In the 1831 case of Cherokee Nation v. Georgia, the Court held that it lacked jurisdiction to hear the tribe’s case.[50] In 1832, however, the Court ruled in Worcester v. Georgia that Georgia did not have authority to extend its criminal laws over the Cherokee Nation.[51] The Court’s ability to compel the state to carry out its decision was limited, however, by the procedures set forth in the Judiciary Act of 1789. Contemporaries also speculated that the Court was leery of provoking Georgia at the same moment that South Carolina was claiming the power to nullify federal law.[52]
Following Chief Justice Marshall’s death in July 1835, President Jackson nominated as his successor Roger Brooke Taney, who had previously served as Jackson’s Attorney General and Treasury Secretary (the latter via a recess appointment which was subsequently rejected by the Whig-dominated Senate). Earlier in 1835, President Jackson had nominated Taney to an associate justiceship on the Court. At that time, the Senate had refused to confirm Taney based on his removal of deposits from the Bank of the United States at President Jackson’s direction.[53] Taney had removed the deposits following Jackson’s 1832 veto of the Bank’s recharter, in which Jackson had rejected the Court’s power to decide with finality the issue of the Bank’s constitutionality.[54] By 1836, Democrats had regained sufficient control of the Senate to confirm him.[55]
Contemporaries noted the interaction of politics with the structure of the federal courts and the size of the Supreme Court. Territorial expansion and regional affiliations were important factors with respect to these issues. By 1837, the Union comprised twenty-six states, nine of which had been admitted since the addition of the most recent circuit in 1807. Since then, the number of circuits and Justices had remained at seven. But residents of the six most recently added states increasingly demanded that their states be incorporated into circuits, rather than having district courts exercise both district- and circuit-court jurisdiction (and without ever being visited by a circuit-riding Justice).[56] Jackson was the first western president, and the West was an important piece of the Democratic political coalition. An increasingly widespread belief held that the Court should represent the regions of the nation. Relatedly, some observers felt that, for all its problems, circuit riding was valuable because it ensured that the Justices were exposed to the issues and debates on the periphery, and that Americans on the nation’s periphery felt connected to the center. Another view, however, held that the Court was already too large, and that the quest for regional balance was either not worth pursuing or doomed to failure.[57]
While these arguments over the structure of the federal judiciary were churning, the Court’s membership was shifting, in part due to deaths and retirements among the Justices and
