Excerpts for Out of Order : Stories from the History of the Supreme Court
Historic Intersections of the President
and the Supreme Court
The role of the judicial branch in our system of government differs markedly from that of the executive branch. Each shoulders substantial powers and obligations under the Constitution. Whereas the Executive enforces the law, however, the Supreme Court interprets the law and has no power to command obedience or appropriate funds to enforce its orders. Whereas the President is elected by the people and serves for limited terms, federal judges are appointed by the President with the advice and consent of the Senate and serve for life. Whereas the Executive reflects the political will of the majority, the judiciary is designed to check assertions of power by the political branches. It thus comes as little surprise that throughout history, the Executive and the Supreme Court have intersected, overlapped, and even clashed.
A story is told that William Howard Taft once found himself stranded at a small country railroad station. Informed that the express train would stop only for a large group of passengers, Taft wired the conductor: "Stop at Hicksville. Large party waiting to catch train." When the train stopped, Taft boarded, alone. He then turned to the confused conductor. "You can go on ahead," he declared. "I am the large party."
We laugh at that story because we remember that Mr. Taft, at his heaviest, tipped the scales at over three hundred pounds. But as the twenty-seventh President of the United States and the tenth Chief Justice of the United States, he also was the only person ever to have tipped the scales by holding both of those incredibly "large" offices--experiencing firsthand the responsibility of heading two of the most significant institutions in the free world. His time in these two roles put him on two different sides of the same constitutional coin.
Indeed, our remarkable Constitution recognizes the individual "largeness" of these governmental bodies while acknowledging that their relative strengths will at times coexist, at times collide, and nearly always manage to carry out the will of the majority while safeguarding the rights of the minority. A look at the dynamic between these two institutions speaks volumes about the genius of our Constitution.
To find an example of the judiciary and the presidency surviving the collision of two larger-than-life personalities, we need not travel very far into the early days of our republic. Second cousins John Marshall and Thomas Jefferson were anything but the kissing kind. Indeed, their relationship was privately nasty and publicly only slightly better. Their exchanges--well documented, but not well-mannered--planted the seeds for an all-out war over the proper role of the judiciary vis-à-vis the other branches of government, and set the trajectory of constitutional law as we know it today.
Jefferson almost was not our third president, coming to the post only after the House of Representatives broke an electoral tie vote in his race with Aaron Burr. Marshall almost was not our fourth Chief Justice, receiving the nomination from John Adams only after first choice John Jay declined reappointment. But once fate brought them to their respective positions of authority in 1801, Jefferson and Marshall came to blows in ways that put even today's climate of political acrimony to shame.
Early in his administration, Jefferson attempted to have Marshall impeached. He accused him of "irregular and censurable" behavior.1 In Marshall's hands, Jefferson lamented, "the law is nothing more than an ambiguous text, to be explained by his sophistry into any meaning which may subserve his personal malice."2 He spoke vehemently of his bitter disappointment in his own appointees to the Supreme Court, calling them "lazy" and weak for not standing up to the "crafty chief judge."3
Marshall, in turn, labeled Jefferson "totally unfit" for the presidency.4
Jefferson called the Chief Justice a man "of lax lounging manners?.?.?.?and a profound hypocrisy."5 Over time, these two actors played out a rather hateful drama, rooted in personal animus and fundamental disagreement as to the proper role of government and the appropriate balance between the judicial and executive branches.
History teaches us that it was Marshall's decision in Marbury v. Madison that permanently legitimated and strengthened the Supreme Court and that gave the Chief Justice his least obvious but perhaps greatest victory over the President. Many say that that case, which came to stand for the authority of the Court to review the acts of the political branches, might as well have been captioned Marshall v. Jefferson.
Here is what happened. In the watershed 1800 election, Marshall's Federalist Party lost control of the executive and the legislative branches to Jefferson's Republicans, and in an effort to retain some presence in government, the Federalists decided to pack the Court before they left office. President Adams appointed Marshall, then the secretary of state, as Chief Justice, and Congress passed a number of pieces of legislation to restructure the court system and provide the lame-duck Senate and outgoing President Adams with many new positions to fill. Adams filled them--or thought he did--through a series of midnight appointments.
But Jefferson fought back. When he took office as President, he refused to deliver the commissions of some of the Adams appointees. When William Marbury, an appointed judge who didn't get his commission, sought a court order compelling the administration to deliver his commission, the case made its way to the Supreme Court.
Chief Justice Marshall, to the surprise of many, denied the order that would have forced his nemesis Jefferson to issue the judicial commissions. That might have seemed like a victory for the new President.
But the "victory" that Marshall handed to Jefferson came with a silver lining for the Court and for himself. Marshall and the Court denied the order to grant Marbury's commission on the grounds that the part of the Judiciary Act of 1789 that had given the Supreme Court the power to issue such orders was contrary to the Constitution.
Writing for a unanimous Court in 1803, Marshall declared "that courts, as well as other departments, are bound by [the Constitution]" and, more important, that it is "emphatically the province and duty of the judicial department" to say what the Constitution means.6
In one fell swoop, Marshall gave up a small power that Congress had conferred upon the Court and took in exchange an even larger, overarching power--to examine and decide the ultimate constitutionality of all acts of Congress that one challenged in Court. Despite the vehement disagreement of his cousin Thomas Jefferson, this bold assertion by John Marshall about the power of the Court has survived as the final and official answer to this day. Today, portraits of Marbury and Madison hang in the Justices' private dining room in the Supreme Court--an ongoing reminder of how the Court established its role as a coequal branch.
The lessons to be learned from the story of Jefferson and Marshall are many. It is the story of a government that develops and evolves, that grows and changes, over time. It is the story of large institutions competing and accommodating and evolving in ways that may both amaze and alarm us. Perhaps even more significant, it is a story that begins a distinctively human thread that is woven throughout all of the Court's history: The judiciary and the presidency are inhabited by real people, with real emotions, real foibles, and a very real--if sometimes conflicting--commitment to doing what is right.
A second historic moment of interaction between the presidency and the judiciary stars President Abraham Lincoln and Chief Justice Roger Brooke Taney. It represents one of the only times a sitting president has deliberately defied a direct court order.
In the early days of the Civil War, the fragile American nation faced serious threats from within. The Southern states had broken away, and European powers were poised to intervene, to divide the young nation permanently into Union and Confederacy. The war posed another sort of danger--a danger less obvious, perhaps, than columns of soldiers marching through the countryside but far more insidious to a nation "conceived in Liberty." It was the danger that a government at war might use its extraordinary powers to stamp out political opposition. In April 1861, a trainload of Union soldiers passed through Baltimore en route to Washington, summoned to man the defensive fortifications around the capital. They were greeted by an angry mob of Southern sympathizers and had to fight their way across Baltimore to reach the station where their train to Washington was waiting. Later that night, local authorities who favored the South sabotaged the bridges and telegraph lines connecting Baltimore and Washington. Their story was that they feared the soldiers might return and seek revenge for the riot, but their actions endangered the Union by cutting off the two critical cities.
With Congress out of session, President Lincoln found himself alone in the capital with the rebel army closing in from the south and an apparent insurrection brewing to the north. Taking action as commander in chief, he directed local military leaders to secure the railroad line from Washington to Philadelphia, and allowed them to suspend "habeas corpus" in that pursuit. Sometimes called the "Great Writ," habeas corpus is the relief that a prisoner requests from a court when they are seeking release from unlawful detention. Thus, by suspending the writ, Lincoln was effectively permitting the Union army to arrest civilians without a warrant, without probable cause, without a speedy jury trial--indeed, without any process at all. Mr. John Merryman, a member of the Maryland legislature who had been recruiting rebel soldiers, was arrested by a Union general under this scheme, and hauled off to Fort McHenry in Baltimore Harbor.
In those days, Justices of the Supreme Court were still "riding circuit"--literally riding their horses in circles around the country to sit as federal judges on lower courts in addition to their service on the Supreme Court. Accordingly, Merryman's plea for relief from detention was directed at his local circuit judge, who happened to be Chief Justice Taney. Taney was no friend of Lincoln's administration. Upon receiving Merryman's plea, he ordered Merryman's jailer at Fort McHenry to bring Merryman to the court, a command that is the essence of habeas corpus relief. (Habeas corpus literally translates as something like "present the body.") The commander refused, sending Taney an aide instead with the message that the President had authorized the colonel to suspend the Great Writ.
Taney was livid. He wrote an incendiary decision, holding that it was for Congress, and only Congress, to suspend the writ of habeas corpus. The President's job was only to see that the laws be "faithfully executed."7 He could not change the nation's laws to suit his interests, even in times of war.
Lincoln gave Taney no response until Congress reconvened a month later, on July 4. At that point, he let loose his own barrage of heated rhetoric, some of which still echoes to this day. Lincoln noted that the Confederacy had renounced the Constitution under which Taney had purported to invalidate the President's actions and argued that, had he not acted when he did, Washington would have fallen into Southern hands and there would have been no Congress to respond to the rebellion. He famously asked: "Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?"8
In any event, Congress retroactively approved Lincoln's decision to suspend the writ and Merryman was never released. Scholars remain divided on the question whether Lincoln had the power to act as he did under the Constitution's "Suspension Clause," which says only that habeas corpus shall not be suspended "except when in cases of rebellion or invasion the public safety may require it." Because it appears in the part of the Constitution that deals with Congress's powers, some say suspension is for Congress alone. On the other hand, because it appears to permit suspension "in cases of rebellion" and it is the President who never takes a recess and must always safeguard the nation as commander in chief, others say that Lincoln did only what the Constitution permits. This is not the place for me to offer my own views in that debate. Suffice it to say that Lincoln won the debate in his own day, especially because Congress itself eventually sided with him in March 1863. And to his immense credit, Lincoln did not use this express authorization from Congress to trample on the civil liberties that the writ of habeas corpus was meant to protect.
Recent historical studies have made clear that Lincoln never tried to suppress political dissent, and always understood that a democracy grows stronger by allowing the people to voice their opposition to government, even in the midst of war. He appreciated that the strength of the Union lay not only in force of arms but in the liberties that were guaranteed by the open, and sometimes heated, exchange of ideas. And he no doubt would have been pleased to know that, soon after his assassination and the conclusion of the war, his predictions that habeas corpus would quickly be reinstated came to pass. In his words, "what constitutes the bulwark of our own liberty and independence" is "not our frowning battlements, our bristling sea coasts, the guns of our war steamers, or the strength of our gallant and disciplined army," but rather "the love of liberty" and "the preservation of the spirit which prizes liberty as the heritage of men, in all lands, everywhere."9
In this way, what might otherwise be remembered as a clash between these two "large" historic figures can be seen as a moment of large respect for the rule of law by both the President and the Chief Justice. The constitutional debate sparked by Lincoln and Taney rages on even now. But we would do well to look beyond the conflict and to appreciate the character of the men behind the story. Their sincere, even if conflicting, examples of dedication to principle--and to the people of a struggling nation--loom large to this day.
A third, well-known account of the intersection between the large scopes of influence of the judiciary and the presidency is found in the story of President Franklin D. Roosevelt's Judiciary Reorganization Bill of 1937. Roosevelt's bill, more commonly known as the "court-packing plan," would have increased the number of Supreme Court Justices from nine to fifteen. Indeed, the current head count of nine is engraved neither in stone nor in the Constitution, and could very well have turned out differently had Roosevelt had his way.
President Roosevelt cited the heavy workload and advancing age of many of the Supreme Court's then-sitting Justices to justify his proposed increase in ranks. However, historians have long focused on what is widely believed to be the real reason for his plan: According to accepted wisdom, Roosevelt was more than a little annoyed at the current Justices. The Court had been giving a thumbs-down to so much of his "New Deal" legislation--various economic programs targeted at redressing the aftermath of the Great Depression.