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William H. Rehnquist:
Reflections on the History and Future of the Supreme Court of the
United States (Williamsburg, Va., June 16, 2000)
Thank you Judge Edwards for your kind introduction. It is a
pleasure to be with you this morning. I have been asked to speak to
you today about my reflections on the history and future of the
Supreme Court of the United States. It is, of course, a topic that is
far too broad to cover in the 30 minutes I am scheduled to speak this
morning. One way to narrow the scope of such a review, however -- and
I think an instructive way to reflect on the Court's history -- is to
examine some of the significant crises the Court has faced. Most have
involved in one way or another challenges to its independence by one
of the political branches of the federal government. And if indeed our
past is prologue, such a review may also serve as a basis for
predicting the Court's future and the challenges it may encounter.
A review of the early years in the Supreme Court's history reveals
that simply because we had a written constitution, which in Article
III vested the judicial power in the Supreme Court by name, did not
mean that that Court was instantly catapulted to co-equal status with
the executive and legislative branches. Quite the contrary, its
independence and authority took years to develop. Justice Robert
Jackson, writing about the Supreme Court half a century ago 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....
The description may have been slightly exaggerated to get the
attention of the reader, but there is a great deal of truth in it.
Indeed, the Supreme Court got off to a very slow start, deciding
only about sixty cases in the first ten years of its existence. Our
first Chief Justice, John Jay, was appointed a special ambassador to
England by President George Washington -- while serving as Chief
Justice -- to negotiate an important treaty establishing the relations
between the newly independent United States and its former colonial
ruler. 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 business. When
Jay did return, he discovered that he had been elected Governor of the
State of New York in absentia -- imagine something like that
happening now! -- and resigned from the Supreme Court to accept the
governorship.
The insignificance of the early Supreme Court is further
demonstrated by the fact that, in the construction of the nation's
capital, no one thought to provide a chamber for the High Court. When
the seat of government was moved from its temporary home in
Philadelphia to Washington in 1800, the Supreme Court had to be housed
in an undignified room in the basement beneath the Senate chamber.
At this same time, a watershed Presidential election -- sometimes
referred to as the Second American Revolution -- took place. John
Adams was defeated for re-election by Thomas Jefferson in November of
1800, but remained in office as a "lame duck" until March 1801. During
the "lame duck" period before Jefferson was inaugurated, Adams
appointed John Marshall Chief Justice of the United States. (The
nomination was especially galling to Jefferson; despite the fact that
Marshall was a fellow Virginian and his distant cousin, Jefferson
referred to the fourth Chief Justice as "that gloomy malignity.")
During his stewardship, Marshall would provide the Court with the
vision, energy, and leadership which both Jay and his successor Chief
Justice Oliver Ellsworth had lacked.
Marshall's authorship in 1803 of the Court's opinion in Marbury
v. Madison, interpreting the language of the Constitution to find
an implicit power of judicial review for the Supreme Court, was a
stroke of genius. That case, of course, is the fountainhead of all of
our constitutional law today. It arose because the "lame duck"
Federalist Congress had during its last days enacted the Judiciary Act
of 1801, which created numerous new federal judgeships and equally
numerous minor magistrate positions -- including one to which William
Marbury had been nominated and confirmed.
When Jefferson's Secretary of State James Madison refused to
deliver Marbury's commission, Marbury sought a writ of mandamus from
the Supreme Court under a provision authorizing the Court to issue
such writs. Marshall wrote for the Court that the Commission should
have been delivered to Marbury, but he then found that the Court was
powerless to issue a writ of mandamus because Congress' attempt to
provide the Court with that authority was unconstitutional. Marshall
for the Court thereby firmly established the power of judicial review,
but avoided a showdown with the President that they were apt to have
lost. In effect, they had their cake and ate it too. Marshall served
as Chief Justice for thirty-four years, and in that time 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 United States Constitution. If it can
be said that the Supreme Court is, in the familiar phrase, the
lengthened shadow of any man, it is that of John Marshall.
The first attack on the independence of the Court arose out of an
incident which occurred just a few months after the decision in
Marbury. Jefferson and his supporters had been especially offended
by the lame duck Federalist Congress' enactment of the Judiciary Act
of 1801. Jefferson wrote to a friend that "the Federalists have
retired into the judiciary as a stronghold . . . and from that battery
all the works of Republicanism are to be beaten down and erased." The
Jeffersonian Congress lost little time in repealing the Judiciary Act
of 1801, and thereby turning out of office some of the "Midnight
Judges" whose Commissions had been delivered.
Shortly after the repeal of this legislation, while giving a charge
to the federal grand jury sitting in Baltimore, Maryland, one of the
Justices of the Supreme Court of the United States, Samuel Chase of
Maryland, sharply criticized Congress for repealing the Judiciary Act
of 1801, and also criticized some pending changes in the Maryland
Constitution that would have enlarged the franchise. Chase's comments
to the grand jury led to his impeachment trial and, ultimately, to the
establishment of what I believe is the second cornerstone of judicial
authority in the United States - and that is that federal judges may
not be removed for their judicial acts. When Jefferson learned of
Justice Chase's charge to the grand jury, he was quick to write in
complaint to one of his party leaders in the House of Representatives,
Joseph Nicholson.
The House of Representatives investigated several possible charges
and voted to impeach Chase. The articles of impeachment included not
merely Chase's charge to the Baltimore grand jury, but also charges
that he had shown an unacceptable degree of partiality in presiding
over the federal court trials of two individuals - John Fries and
James Callender -- who were strong critics of the Adams
administration.
The cast of characters which assembled for the Senate trial of
Samuel Chase in February 1805 was an interesting one. Aaron Burr,
Vice-President of the United States and President of the Senate, would
preside over the Chase trial. He was short of stature, erect, with
piercing black eyes. He himself was a fugitive from Justice at this
time. During the preceding summer he had shot and killed Alexander
Hamilton in a duel at Weehawken, New Jersey, and indictments had been
issued against him both in that state and in New York. This fact
caused one contemporary wag to remark that whereas in most courts the
murderer is arraigned before the judge, in this court the judge was
arraigned before the murderer! But none of this seemed to interfere in
any way with the elegant bearing of the Vice President as he made
ready to officiate at the trial.
Samuel Chase, who stood to lose his office as an Associate Justice
of the Supreme Court of the United States 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 in one's case.
The presentation of evidence against Chase before the Senate took
ten full days, and more than fifty witnesses testified. Judged from
the perspective of history, the charges against Justice Chase with
respect to the trial of John Fries for treason did not amount to much.
The charges against him in connection with the trial of James
Callender were a mishmash of minor claims of error mixed with serious
charges of bias and partisanship. Justice Chase's charge to the
Baltimore grand jury had been something of a political harangue, but
other judges of that time had similarly indulged themselves.
The first roll call in the Senate was on the charges growing out of
the Fries trial, and on this count the vote was sixteen to convict,
and eighteen to acquit. All nine Federalist Senators had voted to
acquit, and they were joined by nine of the twenty-five Republicans.
On the next series of counts, growing out of the Callender trial,
there was a simple majority of eighteen to sixteen to convict, 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
Republicans came the closest to success: nineteen Senators voted to
convict, and fifteen voted to acquit -- not a two-thirds majority.
The significance of the outcome of the Chase impeachment trial
cannot be overstated. The vote represented a judgment that impeachment
should not be used to remove a judge for conduct in the course of his
judicial duties. The important precedent set by Chase's acquittal has
governed the removal by impeachment of federal judges from that day to
this: a judge's judicial acts may not serve as the basis for
impeachment -- only acts amounting to "high crimes and misdemeanors"
can serve as the basis for removing a judge.
The next serious challenge to the Supreme Court came shortly after
the Civil War. The Court at that time was already laboring under a
cloud because of the ill-starred decision in Dred Scott v.
Sanford, rendered a few years before the outbreak of the Civil
War. The Court's holding in the Dred Scott case in 1857, by the
way, was the first time the Court had found an act of Congress
unconstitutional since the Court identified its power to do so 54
years earlier in Marbury v. Madison. In Dred Scott, the
Court held that that part of the Missouri Compromise enacted by
Congress in 1820 which forbade slavery in territories north of a
particular latitude was unconstitutional.
While the Marbury and Dred Scott opinions are alike
in that they both invalidated an act of Congress, in other significant
respects they are totally different. The section of the Judiciary Act
of 1789 which was struck down in Marbury dealt with the
original jurisdiction of the Supreme Court: an esoteric subject which
was of little or no interest to laymen, and, indeed, to most lawyers.
By contrast, the question of whether slavery should be allowed in the
territories had been vigorously and widely debated in Congress and in
the country for decades, resulting in the Missouri Compromise of 1820
and the Kansas-Nebraska Act of 1854. Northern public opinion was
outraged by the Dred Scott decision. In the well-chosen words
of a later Chief Justice, Charles Evans Hughes, the Dred Scott
case was a "self-inflicted wound" from which it took the Court at
least a generation to recover.
Chief Justice Taney did little to enhance his reputation with Union
sympathizers when, sitting as a Circuit Judge in the United States
Circuit Court in Baltimore in 1861, he came into direct conflict with
President Lincoln in the case of Ex parte Merryman. In that
case, Merryman had been arrested by the military for aiding the
Confederacy. He was imprisoned in Fort McHenry and obtained a writ of
habeas corpus from Chief Justice Taney. When the officer in charge of
Merryman refused to obey the writ, stating that the President had
suspended the writ of habeas corpus for public safety, Taney filed an
opinion holding that President Lincoln's suspension of the writ
violated the Constitution.
Most press accounts at the time were extremely critical of Chief
Justice Taney. The New York Tribune wrote that "The Chief Justice
takes sides with traitors, throwing around them the sheltering
protection of the ermine." And the New York Times described Chief
Justice Taney's opinion as follows: "Too feeble to wield the sword
against the Constitution, too old and palsied and weak to march in the
ranks of rebellion and fight against the Union, he uses the powers of
his office to serve the cause of traitors." The Missouri Democrat
suggested that "If the Government will follow up the suspension of the
writ of habeas corpus with the dispension of . . . Taney, it will be a
good riddance for the country." He did receive some more favorable
press from those more sympathetic to the cause of civil liberties,
however.
It was at the beginning of the recovery from the Dred Scott
decision that the Court encountered a substantial challenge to its
authority from the radical element of the Republican Party which
gained control of both Houses of Congress in the election of 1866. The
following year Congress passed several "Reconstruction Acts," which
were sweeping pieces of legislation placing most of the southern
states under military government. Many observers thought that major
parts of the laws contained serious constitutional flaws.
Before the McCardle case, the Supreme Court had twice
avoided ruling on the constitutionality of the Reconstruction Acts by
dismissing suits on the ground that they raised political questions
over which the Court had no jurisdiction. However, the Court, by
virtue of a February 1867 statute which expanded the high Court's
jurisdiction to review denials of writs of habeas corpus, received a
direct appeal from one William H. McCardle. As a newspaper editor in
the southern state of Mississippi, McCardle used the publication to
criticize Reconstruction, as well as the military officers
administering it throughout the South. Eventually, his vituperative
editorials landed him in hot water. Arrested and held for trial by a
military tribunal, McCardle was charged with several crimes including
inciting insurrection and printing libelous statements. When
McCardle's habeas corpus petition in the federal circuit court in
Mississippi was denied, he appealed as a matter of right to the
Supreme Court under the law as it then existed.
Rumors abounded that the Supreme Court would use the McCardle
case to declare the Reconstruction Acts unconstitutional, and, in
fact, there is substantial evidence that sentiment on the Court
favored such an outcome. But, early in March of 1868 while the case
was being argued before the Supreme Court, Congress moved swiftly to
repeal the very legislation which gave the Court jurisdiction over the
case. The Court ultimately reviewed the effect of the repeal
legislation in April of 1869, and it unanimously upheld the repeal
measure and dismissed the case for lack of jurisdiction. In an opinion
written by Chief Justice Salmon P. Chase, the Court held that Article
III of the Constitution gave power to Congress to make exceptions to
the Supreme Court's appellate jurisdiction, and the Court could not
inquire into the motive with which Congress enacted such exceptions.
The prestige of the Supreme Court obviously did not fare well during
this encounter with the Reconstruction Congress. Undoubtedly, it could
have ruled differently in the McCardle case. What would have
been the outcome then is a matter of speculation; it may be that the
Court's apparent decision to live to fight another day was the best
conceivable one under the circumstances.
Almost seventy years later, the Supreme Court again came under
attack, this time from the President. In 1937 President Franklin
Delano Roosevelt was beginning his second term in the White House by
virtue of an overwhelming electoral victory in 1936 in which he won
the electoral vote in all but two states of the Union. The Supreme
Court was not an issue in that Presidential election, but the Court
was apparently very much on Franklin Roosevelt's mind because of
certain cases the Court had decided during Roosevelt's first term as
President.
In fact, during FDR's initial term, the Supreme Court had declared
unconstitutional the National Industrial Recovery Act, the
Agricultural Adjustment Act, and the so-called "Hot Oil Act" - one of
the centerpieces of his New Deal program to lift the country out of
the Great Depression. The Court had also ruled against the government
in several minor cases.
Confronted with such a crisis, President Roosevelt decided to take
action. In his view, the Court had become a roadblock to the
progressive reforms needed in the nation. Just as President Jefferson
had in 1801 trained his sights on the Federalist members of the
Supreme Court, Roosevelt planned to use his immense political
resources to bring the Court into step with the President and
Congress. In February 1937, Roosevelt summoned the members of his
cabinet and the Democratic leadership of both Houses of Congress to an
unusual meeting at the White House. There Roosevelt unveiled the
message he planned to send to Congress that day, recommending that the
Judicial Branch of the government be "reorganized". The message
proposed that for each member of the Supreme Court who was over
seventy years of age and did not elect to retire -- six of the nine
members of the Court were in that situation -- the President would be
empowered to appoint an additional Justice to the Court, thereby
enlarging the Court's membership to a total of fifteen. The true
reason for the plan, of course, was to enable the President to "pack"
the Court all at once, in such a way that New Deal social legislation
would no longer be threatened. But Roosevelt based his public argument
on the duplicitous premise that the older judges were unable to carry
a full share of the Court's workload and that the Court was falling
behind in its work. This reason was demonstrably false.
The proposal astounded the Democratic leadership in Congress and
the nation as a whole. Political observers thought that Roosevelt
would undoubtedly get what he wanted. The Democrats had a four to one
margin in the House of Representatives, and of the ninety-six members
of the Senate, only sixteen were Republicans.
The Chief Justice at that time was Charles Evans Hughes. Hughes and
the Associate Justices of the Court were offered free broadcast time
by the radio networks to speak about the President's plan, which
Roosevelt insisted on calling a "reorganization" plan while opponents
dubbed it a "Court-packing plan." The Justices wisely declined these
offers and said nothing. But Chief Justice Hughes worked busily behind
the scenes with Senator Burton Wheeler of Montana, a Democrat who
agreed to lead the opposition to the bill.
Chief Justice Hughes wrote a letter to Senator Wheeler, using very
telling statistics to show 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
President Roosevelt to switch to a franker justification: the Supreme
Court as presently constituted was frustrating the popular will by
invalidating needed social legislation.
The battle in the Senate lasted from March until July 1937. One
event after another damaged the plan's chances for enactment. That
spring, the Supreme Court handed down two decisions which upheld, by
the narrow vote of five to four, important pieces of Roosevelt's
social legislation. This was thereafter known as "the switch in time
that saved nine." Next, one of the oldest and most conservative
members of the Court, Willis Van Devanter, retired, giving the
President the opportunity to appoint a new member of the Court without
the need for the Court-packing plan. Eventually, public opinion began
to rally against Roosevelt's proposal.
Debate in the Senate on the bill began in early July, in the midst
of one of the worst heat waves in Washington history. A few days after
the debate began, the Democratic majority leader and floor leader for
the bill, Senator Joe Robinson of Arkansas, was found dead one morning
in his apartment. The Senate recessed in order to allow Senators to
take the train to Little Rock for Robinson's funeral.
Roosevelt realized he did not have the votes to pass the bill in
the Senate, and he agreed on 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 be deleted. Supporters of the Court-packing plan hoped to
effectuate this compromise by using such vague language that the
casual observer would not realize what was happening. They had almost
succeeded when Senator Hiram Johnson, a maverick Republican from the
State of California, who had opposed President Roosevelt's
Court-packing 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 persisted.
"The Supreme Court is out of the bill?" demanded Senator Johnson.
"The Supreme Court is out of the bill," finally acknowledged the
floor leader.
Hiram Johnson then exclaimed "Glory be to God!" and sat down. After
a momentary pause, as if by pre-arranged signal, the spectators'
galleries broke into applause. The President's Court-packing plan was
indeed dead.
Franklin Roosevelt lost the Court Packing battle, but he won the
war for control of the Supreme Court. He won it not by any novel
legislation, but by serving in office for more than twelve years, and
appointing eight of the nine Justices of the Court. In this way the
Constitution provides for ultimate responsibility of the Court to the
political branches of government.
Thus, we have seen during the course of American history of just
over two centuries a number of challenges to the Supreme Court's
authority, independence, and its decisions. Some, frankly, have been
ill-conceived and improper, and some have been attempted within the
framework of our Constitutional form of government. They range from
the effort in 1805 to remove Samuel Chase from the Court because of
the content of his rulings from the bench; to stripping the Court of
its jurisdiction to consider a particular case because the leaders in
Congress thought the Supreme Court would rule against the
constitutionality of a measure viewed by them as essential; to the
1937 effort of President Roosevelt to enlarge the size of the Court so
that he could immediately place six of his own appointees on it and
swing the ideological balance from conservative to liberal.
These incidents are to some extent an outgrowth of the tensions
built into our three branch system of government. To a very
significant degree these tensions are probably desirable and healthy
in maintaining a balance of power in our government. Ultimately, we
have had the good fortune that through our system of checks and
balances the independence of our Supreme Court and the federal
judiciary has been preserved when such conflicts have arisen. We have
seen that this in large part is dependent upon the public's respect
for the judiciary. For it was the United States Senate -- a political
body if there ever was one -- who stepped in and saved the
independence of the judiciary, both in the Chase trial in 1805 and in
Franklin Roosevelt's Court-packing plan in 1937.
I suspect the Court will continue to encounter challenges to its
independence and authority by the other branches of government because
of the design of our Constitutional system. The degree to which that
independence will be preserved will depend again in some measure on
the public's respect for the judiciary. Maintaining that respect and a
reserve of public goodwill, without becoming subservient to public
opinion, remains a challenge to the federal judiciary in the new
millennium.
Thank you for the opportunity to speak with you today.
Text from the U.S. Supreme Court Web page.
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