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Justice Robert Jackson of the Supreme Court, for whom I once clerked, wrote a book about the Court half a century ago, in which he said,
[a]s created, the Supreme Court seemed too anemic to endure a long contest for power. . . . Yet in spite of its apparent vulnerable position, this Court has repeatedly overruled and thwarted both the Congress and the Executive. It has been in angry collision with the most dynamic and popular Presidents in our history. . . .
This description may have been slightly shaded to get the attention of the reader, but there is a great deal of truth in it. From time to time, commencing soon after this nation’s birth, our co-equal branches of government have bristled at the idea of an independent judiciary, and their hostility has often been directed at the United States Supreme Court, the most visible embodiment of that independence.
The Supreme Court got off to a very slow start, deciding some 60 cases in its first 10 years. Its first chief justice, John Jay, was appointed a special ambassador to England by President George Washington to negotiate what ultimately became the Jay Treaty. He left the United States in the spring of 1794 and did not return until the summer of 1795. There is no evidence that his absence in any way handicapped the Supreme Court from doing its work. When Jay returned, he learned that he had been elected governor of the state of New York in absentia (imagine that), and he resigned from the Supreme Court to accept the governorship.
Jay’s successor, Oliver Ellsworth, had a remarkably similar experience. John Adams, who succeeded Washington as president, sent him on a mission to France to try to bring about an end to the undeclared war between the two countries. Ellsworth became ill while in Paris, and in December of 1800, he submitted his resignation to President John Adams.
By then, Adams had become the first lame duck president of the United States. He was defeated by Thomas Jefferson in November 1800, but he remained in office until March 1801. The election of 1800 is referred to by many American historians as the second American Revolution. The Federalists, led by George Washington, Alexander Hamilton, and John Adams, had governed the nation for the first 12 years of its existence. They believed, as Hamilton put it, that the country should be governed by the “rich, the able, and the well born.” They preferred England to France as an ally of the United States. Thomas Jefferson and his party, on the other hand, believed in an agrarian democracy and favored France as an ally over England. In the election of 1800, Jefferson and his party took control of the presidency and both houses of Congress from the Federalists. During this lame duck period, Adams appointed John Marshall as chief justice of the Supreme Court of the United States, setting the stage for the assertion by the Court of its constitutional role.
The Leadership of John Marshall
Marshall provided the vision, the energy, and the leadership for the Court that both Jay and Ellsworth had lacked. John Marshall was born in 1755, about 50 miles west of present-day Washington, D.C., on what was then the Virginia frontier of European settlement. By the time he was 25 years old, he had served as a captain of a line artillery company in the American Revolution and fought in the battles of Monmouth and Brandywine (both British victories). He had suffered long with George Washington’s troops through the terrible winter of 1778 at Valley Forge. He would say that this experience led him to think of the United States as his country and Congress as his government—a sentiment quite remarkable for a Virginian at that time.
After his military service, Marshall returned to Richmond, Virginia, and took up the practice of law. He had only six months of formal education altogether, but, in those days, you did not need any more. He developed a successful law practice and was elected successively to the Virginia legislature and then to the United States Congress. At the time of his appointment, he was serving as secretary of state for President John Adams.
Two years after he became chief justice (in 1803), Marshall wrote the Court’s watershed opinion in the case of Marbury v. Madison. That decision held that because our written Constitution limited the authority of each of the three branches of the federal government, the federal courts had the power to declare an act of Congress unconstitutional and void if Congress had exceeded its authority in passing it. This was a truly novel and audacious judgment. It is the fountainhead of all American constitutional law. This power of judicial review enunciated by Marshall for the Court sowed the seeds of the Court’s authority to strike down executive and legislative acts that were contrary to some provision of the Constitution. It also sowed the seeds of the inevitable political controversies that will attend such a court.
Marshall served as chief justice for 34 years, and in that time, he changed the Supreme Court from little more than a common-law court of last resort to a powerful and respected partner in the three-part system of government contemplated by the Constitution. If it may be said that the Supreme Court is, in the familiar phrase, the lengthened shadow of any man, that man is surely John Marshall.
Within a few months after the Marbury decision, Samuel Chase, one of the justices of the Supreme Court, gave a charge to a grand jury sitting in Baltimore, Maryland, sharply criticizing the new Congress for repealing a law passed by the lame duck Federalist Congress, and also criticized some pending changes in the Maryland constitution that would have enlarged the electoral franchise. When Jefferson learned of this charge, he was quick to write the following letter to one of his party leaders in the House of Representatives, Joseph Nicholson:
Ought this seditious and official act on the principles of our Constitution, and on the proceedings of a State, to go unpunished? And to whom so pointedly as yourself will the public look for the necessary measures? I ask these questions for your consideration, for myself it is better that I should not interfere.
The First Challenge to the Court
With this letter, Jefferson set in motion the forces that would represent the first of several challenges to the Supreme Court that have occurred throughout American history. The Constitution provides that civil officers, including judges, may be impeached for “high crimes and misdemeanors.” Impeachment is to be by the House of Representatives, and trial of the impeachment is to be before the Senate. A majority of two-thirds of the senators is required to convict, and upon conviction, the official is removed from office.
The House of Representatives first investigated possible charges against Chase and then voted to impeach him. The articles of impeachment included not merely Chase’s charge to the Baltimore grand jury, but also charges that he had shown a high degree of partiality in presiding over the trials of John Fries in Philadelphia and of James Callender in Richmond during the year 1800.
When Chase’s trial before the Senate opened on February 4, 1805, in the raw new capital of Washington, D.C., interest naturally focused on the principals in the forthcoming drama. The vice president of the United States and presiding officer of the Senate was Aaron Burr. Burr was a small, dapper man with piercing black eyes and an elegant bearing that belied the fact that, although he was the presiding officer of the impeachment court, he himself was a fugitive from justice. During the preceding summer in Weehawken, New Jersey, Burr had killed another one of the United States’ founding fathers, Alexander Hamilton, in a duel. Indictments against Burr for murder were outstanding, leading one wag to remark that, although in most courts the murderer was arraigned before the judge, in this court the judge was arraigned before the murderer.
Samuel Chase, who stood to lose his office as an associate justice of the Supreme Court if convicted by the Senate, was more than six feet tall and correspondingly broad; his complexion was brownish-red in color, earning him the nickname of Old Bacon Face. He was hearty, gruff, and sarcastic; one would rather have him as a dinner companion than as a judge presiding over one’s case.
Chase had a distinguished and successful career at the bar and, in 1791, became chief judge of the Maryland general court. In 1796, George Washington appointed him to the Supreme Court of the United States. His legal ability was recognized by all, but his impetuous nature made him something of a stormy petrel. Joseph Story described him as the “living image” of Samuel Johnson, “in person, in manners, in unwieldy strength, and severity of reproof, in real tenderness of heart; and above all in intellect.”
Chase’s principal counsel defending him against the charges brought by the House of Representatives was his longtime friend Luther Martin. Martin was one of the great lawyers in American history and also one of the great iconoclasts of the American bar. He was the first attorney general of Maryland and served in that office for more than 20 years. He was a member of the Continental Congress, a member of the constitutional convention, and, for a while, a state judge in Maryland. He had a marked weakness for the bottle, but, at least in the short run, intoxication did not seem to impair his performance in court. He was described by American historian Henry Adams as “the rollicking, witty, audacious Attorney-General of Maryland . . . drunken, generous, slovenly, grand bull-dog of Federalism . . . the notorious reprobate genius.”
The presentation of evidence before the Senate took 10 full days, and more than 50 witnesses testified. The charges against Chase with respect to the trial of John Fries for treason did not, judged from the perspective of history, amount to much. The charges against him in connection with the trial of James Callender were a mishmash in which minor claims of error were mixed together with serious charges of bias and partisanship. Chase’s charge to the Baltimore grand jury was something of a political harangue, but other judges of that time similarly indulged themselves.
The closing arguments to the Senate began on February 20, 1805, and, in the oral tradition of that time, lasted several days. On March 1, the Senate convened to vote on the counts against Chase; Senator Uriah Tracy of Connecticut was brought into the chamber on a stretcher in order to cast his vote.
Because the names of the senators were called individually on each of the eight counts, the roll call took some time. At this time, there were 25 Jeffersonian Republicans and nine Federalists in the Senate, and it was clear that if the senators voted along party lines, the necessary two-thirds vote to convict Chase could be had.
The first roll call was on the charges growing out of the Fries trial, and on this count, the vote was 16 to convict and 18 to acquit. All nine Federalist senators voted to acquit, and they were joined by nine of the 25 Jeffersonian Republicans. On the next series of counts, growing out of the Callender trial, there was a majority of 18 to 16 for conviction, but the two-thirds rule was, of course, not satisfied. The final vote was on the charge to the Baltimore grand jury, and on this count, the managers came the closest to success: Nineteen senators voted to convict, and 15 voted to acquit. But this was still not a two-thirds majority.
After the roll call, the vice president rose and read the votes on each count, then recited these portentous words: “It, therefore, becomes my duty to declare that Samuel Chase, Esquire, stands acquitted of all the Articles exhibited by the House of Representatives against him. . . .”
The significance of the outcome of the Chase trial cannot be overstated. Although the Jeffersonian Republicans had expounded grandiose theories about impeachment being a method by which the judiciary could be brought into line with prevailing political views, the case against Chase was tried on a basis of specific allegations of judicial misconduct. Nearly every act charged against him had been done in the discharge of his judicial office. His behavior during the Callender trial was a good deal worse than most historians seem to realize, and the refusal of six of the Republican senators to vote to convict even on this count surely cannot have been intended to condone Chase’s acts. Instead, it represented a judgment that impeachment should not be used to remove a judge for conduct in the exercise of his judicial duties. The political precedent set by Chase’s acquittal has governed the use of impeachment to remove federal judges from that day to this: A judge’s judicial acts may not serve as a basis for impeachment.
After the acquittal of Justice Chase, the Supreme Court sailed in relatively untroubled waters for the next half-century of its existence. But that period of calm ended abruptly when it handed down the ill-starred decision in the Dred Scott case in 1857. The Court there held that Congress had no authority to exclude the institution of slavery from federal territories that had not yet been admitted to the Union as states. The decision aroused the wrath of the north on the eve of the Civil War, and the Court labored under a cloud for more than a decade after that. In 1868, shortly after the end of the Civil War, a hostile Congress cut off the Court’s jurisdiction to hear and decide a case that had already been argued and submitted, fearing that the Court would invalidate some of the provisions of the Carthaginian peace imposed upon the states that had tried to secede.
The Conflict with FDR
The Supreme Court eventually won back public respect but also settled on a judicial doctrine that would bring it into conflict with the progressives and social reformers in the United States. This conflict came to a head during the administration of President Franklin Delano Roosevelt, immediately after his overwhelming election to the second of the four terms to which he would be chosen as president.
The Supreme Court was not an issue in the 1936 presidential election, but it proved to have been very much upon Franklin Roosevelt’s mind because of some decisions it had rendered during his first term as president. He had been elected to his first term in 1932, in the depths of the Great Depression, and he and his advisors were determined to do something—whatever it took—to try to move the country back to prosperity. During a period known as the hundred days in 1933, Roosevelt had sent to Congress a list of must-legislation, as it was called, because he insisted that Congress pass it virtually as it was submitted by the administration. First came the National Industrial Recovery Act, which contemplated that each industry in the country would devise a code of price setting and wage setting that would restore price and wage levels. Then came the Agricultural Adjustment Act, which was designed to provide relief for the farmers: The federal government would support minimum prices for their products, and they would be paid for agreeing to hold down farm production. Then came the so-called Hot Oil Act, which forbade the shipment in interstate commerce of oil that had been produced in violation of state production limitations. All of these measures and more were dutifully—nay, subserviently—enacted by a Congress overwhelmingly controlled by Roosevelt’s Democratic Party.
But the members of the Supreme Court sitting in the 1930s had been appointed by a series of presidents holding a philosophy that was quite different from Franklin Roosevelt’s. This Court had for 30 years been reading into our Constitution a doctrine of freedom of contract, which was hostile to social legislation, and had adopted a very limiting view of congressional authority under its power to regulate interstate commerce. During Roosevelt’s first term, it had declared unconstitutional first the Hot Oil Act, then the National Industrial Recovery Act, and then the Agricultural Adjustment Act. The Court also ruled against the government in a number of minor cases. Several of these decisions were handed down on the same day in 1935, which became known to New Dealers as Black Monday. The president was so outraged that he held an off-the-record press conference a few days later, in which he stated that the United States was the only nation in the world that was denied the authority to solve the social and economic problems produced by the Great Depression. He went on to say,
We thought we were solving it, and now it has been thrown straight in our faces and we have been relegated to the horse-and-buggy definition of interstate commerce.
After that outburst, Roosevelt bided his time until after his reelection in November 1936. In February 1937, he summoned the members of his cabinet and the Democratic leadership of both Houses of Congress to an unusual meeting at the White House. He there unveiled before them a message that he was sending to Congress that day, recommending that the judicial branch of the government be “reorganized,” as he put it. The crux of his proposal was that for each member of the Supreme Court who was over 70 years of age—six of the nine were of that vintage—and did not elect to retire, the president would be empowered to appoint an additional justice to the Court and thereby enlarge the Court’s membership up to a total of 15.
The true reason for the proposal, of course, was to enable the president to pack the Court all at once in such a way that it would no longer invalidate New Deal social legislation. But with a deviousness that was typical of him, the president based his public argument on the ground that the older judges were unable to carry a full share of the Court’s workload and the Court was falling behind in its work. This reason was transparently false.
The proposal astounded the Democratic leadership in Congress and the nation as a whole. But the first reaction of political observers was that Roosevelt would undoubtedly get what he wanted since the Democrats had a four-to-one margin in the House of Representatives, and of the 96-member Senate, only 16 were Republicans.
The chief justice of the Supreme Court at that time was Charles Evans Hughes, like Roosevelt, from New York. Hughes himself was no stranger to politics; he had been a reform governor of New York in the first decade of the 20th century and had been appointed to the Supreme Court as an associate justice in 1910. He resigned from that office in 1916 to accept the Republican nomination for president and run against Woodrow Wilson, narrowly losing to Wilson in the 1916 election. He had then held other public offices, including secretary of state, and developed a very lucrative private law practice until being appointed chief justice by President Hoover in 1930.
Felix Frankfurter, who knew them both well, said that either of them became the dominant personality in any room they entered. Franklin Roosevelt, having made an amazing recovery from a crippling polio attack while a young adult, had massive shoulders, a jutting jaw, and an air of self-assurance symbolized by his jaunty waving of a cigarette holder; he was a perfect subject for both friendly and hostile political cartoonists, and he was at the zenith of his powers.
Charles Evans Hughes was something above medium height with gray hair and a beard best described as Jovian. Central casting could not have produced a better image of a chief justice, and his presence matched his appearance. Here was a conflict that the press could relish, as it did.
Hughes and other associate justices were offered free time by the radio networks to speak about the president’s plan, which Roosevelt insisted on calling a reorganization plan, but opponents quickly dubbed a “Court-packing plan.” They wisely declined these offers and said nothing. But Hughes worked busily behind the scenes with Senator Burton Wheeler from Montana, a Democrat who agreed to lead the opposition to the bill.
Because of the overwhelming Democratic majority in the Senate, where the bill was first introduced, the original opponents in that body saw themselves as a corporal’s guard trying to buy time until public reaction to the bill could set in. Hughes wrote a letter to Wheeler, pointing out with very telling statistics that the Supreme Court was entirely abreast of its workload and could not possibly decide cases any faster than it was doing. This letter, presented to the Senate Judiciary Committee, demolished the original justification for the bill and caused Roosevelt to switch to a franker justification of it: The Supreme Court, as presently constituted, was frustrating the popular will by invalidating needed social legislation.
The father of the court-packing plan was Homer Cummings, Roosevelt’s attorney general. Cummings had worked his way up through the Connecticut Democratic Party’s ranks at a time when there were very few Democrats in that state. He eventually became a national Democratic committeeman from Connecticut. Then, in the 1920s, he served as the national chairman of the party. Although he had authored the court-packing plan in the fall of 1936, by February 1937, Cummings saw that the younger members of the Roosevelt administration had taken over the Court battle and had squeezed him out. When the Senate began debate on the court-packing bill in March, Cummings made one last radio speech in favor of the legislation and then escaped the political storm in Washington for a few weeks of sun, sand, and sea in Florida.
The battle in the Senate lasted from March until July 1937. One event after another occurred to hurt the plan’s chance of enactment. The Supreme Court handed down two decisions that spring in which it upheld, by a vote of five to four, important pieces of social legislation. Because the Court had only the previous year ruled the opposite way by a vote of five to four, these decisions were known as the switch in time that saved nine. Then, one of the oldest and most conservative members of the Court, Willis Van Devanter, elected to retire, giving Roosevelt one appointment without any need for the passage of the court-packing plan. And public opinion began to rally against the proposal.
In the late spring, Roosevelt agreed to a compromise whereby his new appointments would be limited to one per year, and debate on the bill began in the first week of July 1937. This was during one of the worst heat waves that had ever struck the United States and was before even public buildings were air-conditioned. The burden of debate was carried by Senator Joe Robinson of Arkansas, who was the Democratic majority leader and who himself hoped for a seat on the Court. At the end of the second day of the debate, he complained of chest pains and was found dead in his apartment across the street from the Capitol Building the next morning. The Senate recessed while senators boarded a funeral train going from Washington, D.C., to Little Rock, Arkansas. Vice President Garner, at Roosevelt’s request, polled senators on the train and advised Roosevelt that the bill’s chances of passage had died with Robinson.
Roosevelt agreed to a face-saving solution by which the bill, rather than being defeated in a floor vote, would be recommitted with a tacit understanding that the provisions relating to the Supreme Court would never again see the light of day. Supporters of the bill hoped to effectuate this result by the use of such vague language that it would not be apparent to the casual observer what was happening. They had almost succeeded when Senator Hiram Johnson, a maverick Republican from California who had opposed the president’s plan, asked whether the portion dealing with the Supreme Court was dead. At first, the floor leader tried to shunt his question aside, but the white-haired Californian would not accept this: “The Supreme Court is out of the bill?” demanded Senator Johnson. “The Supreme Court is out of the bill,” finally acknowledged the floor leader. Then Hiram Johnson exclaimed “Glory be to God!” and sat down. After a momentary pause, as if by prearranged signal, the spectator galleries broke into applause. The president’s plan was indeed dead.
President Franklin Roosevelt lost this battle in Congress, but he eventually won the war to change the judicial philosophy of the Supreme Court. He won it the way our Constitution envisions such wars being won—he served as president for slightly more than 12 years and, during that period of time, appointed seven associate justices and one chief justice. He was careful in picking nominees who he thought would repudiate the doctrines of the existing Court, and his choices did not disappoint him.
This tension that waxes and wanes among the judiciary, the executive branch, and the U.S. Congress does not represent a flaw in our constitutional framework, but instead reveals its genius. Through the conflicts I have described (and many others), the independence of the judiciary has endured, and our seemingly anemic Court, with no armies in its employ, continues to play its role.
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