"Justice James Moore Wayne of Georgia, last survivor of Marshall’s Court, remained; until his death in 1867, he voted to sustain all the war measures the Court passed judgment on."
When Justice Stephen Johnson Field was appointed on May 20, 1863:
1. [MD] Roger Brooke TANEY (1836-1864)
2. [GA] James Moore WAYNE (1835-1867)
3. [TN] John CATRON [1837-1865]
4. [NY] Samuel NELSON [1845-1872)
5. [PA] Robert Cooper GRIER (1846-1870)
6. [ME] Nathan CLIFFORD (1858-1881)
7. [OH) Noah Haynes SWAYNE (1862-1881)
8. [IA] Samual Freeman MILLER (1862-1877)
9. [IL] David DAVIS (1862-1877)
The legislation of 1801 and 1802 had been the product of political infighting. The same was true in 1866, when Congress sought to deny President Andrew Johnson an opportunity to submit nominations for Court openings by providing that no vacancies were to be filled until the number of seats on the bench had been reduced to seven. As it turned out, the number never fell below eight. Meantime, in 1869, President Grant found a need to "pack" the Court, and Congress obliged by building the number back up to nine.
The reason for the "packing" was the Court's unreconstructed attitude toward the constitutionality of the Civil War legal tender acts, which had dealt with a financial emergency by making paper money ("greenbacks") acceptable on a parity with gold and silver in payment of certain obligations. A seven-judge Court held the law unconstitutional by a margin of 4-3, on February 4, 1870 (Hepburn v. Griswold, 8 Wall. 603). Grant, whose nominations for the two new positions authorized by Congress had been hanging fire, had his nominees (William Strong of Pennsylvania and Joseph Bradley of New Jersey) confirmed within a month following this first Legal Tender Case. Fifteen months later, on May 1, 1871, the two new jurists joined the former minority of three to form a 5-4 majority upholding the legislation in the Second Legal Tender Case (Knox v. Lee, 12 Wall. 457).