Through The Legal Looking Glass--Hail To The Chief

I spent a major portion of my Monday watching the Sotomayor hearings before the Senate Judiciary Committee. As I approached near-apoplexy during the initial comments, I decided that I would calm my raging soul by writing something not directly related to the present circus. This column will be about three historic Chief Justices, two of whom are famous names, and one of whom is more famous for an infamous decision. So: Hail to the Chief (Justice, that is).

The Chief Justice of the Supreme Court is in many ways just another justice. Sometimes he writes the opinions, sometimes not. He may be in either the majority or the minority in any case, and may choose to write no opinion at all in a given case. But he is also the chief administrator of the court, and assigns cases and roles to the other justices as he sees fit. Most of all, he is the best-known public face of the highest court in the land.

Note: Lest anyone be offended by my use of the masculine pronoun for the Chief Justice, please be aware that I do so simply because there has been no female Chief Justice to date.

JOHN MARSHALL: Most Americans recognize his name. Many know he was involved in some very important Supreme Court cases in the early years of the Republic. But many also think he was our first Chief Justice. In fact, he was our fourth. The first was John Jay, a famous politician in his own day and a Founding Father. Jay was followed by John Rutledge and Oliver Ellsworth, neither exactly a household word.

Marshall was Chief Justice from 1801 to 1835, a term of thirty-four years. During that tenure, he set the tone for how the Supreme Court would operate for the next one hundred seventy-five years, established the doctrine of judicial review in all matters constitutional (the power to strike down Congressional acts and Executive actions), and took on the powers-that-be from his own Federalist Party and later the Jeffersonian Democratic-Republicans. He is by many standards the most important Chief Justice in American history.

Although one other justice spent more time on the Supreme Court, Marshall sat as Chief longer than any other. Virginian Marshall was a noted lawyer, state delegate in the Virginia legislature, and as the lead representative from Virginia was instrumental in the actions which resulted in the drafting and adoption of the Constitution. George Washington chose Marshall as his first Attorney General candidate, but Marshall rejected the offer. Marshall then became part of a three-person delegation to France. When the French refused to conduct diplomatic relations with America until bribes were paid, Marshall led the delegation in bold refusal (it was called the XYZ Affair). He returned to America as a hero, and Franco-American relations have been strained ever since.

Marshall subsequently served as a member of the House of Representatives after rejecting his first nomination to the Supreme Court (he said that he considered the Court insignificant). John Adams then nominated Marshall as Secretary of War, withdrew the nomination, and name him Secretary of State.

After some complicated legal and executive maneuvering at the end of his presidency, Adams again appointed Marshall to the Court in the wake of his "midnight appointments" scheme to preserve Federalists in office after the Jeffersonians had won the national election. A little-known fact is that Marshall served as both Secretary of State and Chief Justice at the same time until the expiration of Adams's term of office (from February through March of 1801). It is generally thought that he considered being Secretary of State as the more important position.

Marshall first changed the way the Court handed down decisions. Previously, the justices took a vote, then each wrote a separate opinion. Marshall altered that method so the the Court would simply issue an opinion on behalf of the Court, leaving other justices to concur, dissent, join, or some combination thereof. It means that from that point on, lawyers and appellate courts would cite "the Supreme Court Decision," rather than the opinions of the various justices. The decision itself was precedent, but lawyers could refer to the other opinions as reasons to diverge in a particular case (this is called "distinguishing the cases").

The Chief then took on the landmark of landmark cases: Marbury v. Madison. In a politically odd but legally sound decision, Marshall declared an Act of Congress which expanded the power of the federal judiciary to be an unlawful abuse of Congressional authority, and therefore unconstitutional. In other words, his decision actually blocked the expansion of the judiciary, his own branch of the government. The Supreme Court now took on the power to declare that after "judicial review," it was empowered by the Consitution to nullify acts of the other two branches of government. Thomas Jefferson was pleased that it put a knife in the Federalist Party, but appalled that the Court had performed what he considered to be tyrannical overstepping. Jefferson lamented that now "the Constitution is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please." At the Constitutional Convention Jefferson had called Article III (the Judicial Branch) a serious mistake, and after Marbury he continued to call the Supreme Court the most dangerous branch of government.

Marshall's other well-known decision was in the case of McCulloch v. Maryland. It sealed the concept of "federal supremacy." The case stood for two points. The states could not tax federal activity. And it found inherent authority (rather than express authority) in the Constitution for the Congress to create The Bank of the United States. Marshall issued many more important decisions during his long tenure on the Court, but most of them are of more interest to historians, lawyers, and constitutional scholars than they are the the average Joe. Marshall served throughout the presidencies of John Adams, Thomas Jefferson, James Madison, James Monroe, John Quincy Adams, and Andrew Jackson.

But one more case is interesting because it somewhat negates the image of Marshall as the patrician elitist and Andrew Jackson as the representative of the poor and oppressed. In one of his last major decisions, Marshall held that the State of Georgia had no constitutional right to expel its Cherokee residents. Jackson had a nearly psychotic dislike of native tribes, and had pushed for the Indian removal acts. Jackson's response to Marshall's decision was "John Marshall had made his decision, now let him enforce it." Jackson prevailed, and the Cherokee Nation was forced not only out of Georgia, but out of all the states and into the western territories where present-day Oklahoma is located. So many Cherokees died on the way, that the path is known today as "the trail of tears." It was the only time in American constitutional history in which naked presidential military power triumphed over the clear decision of the Supreme Court.

ROGER B. TANEY: Taney was Chief Justice from 1836 through the closing months of the Civil War in 1864. As a quick note before proceeding, I should point out that the Chief Justice's name is pronounced "Tawny." Taney had been a Federalist in his youth, but ultimately became a supporter of Andrew Jackson's nascent Democratic Party. He became a loyal Jacksonian machine politician. He served the President first as Attorney General and then Secretary of the Treasury. Much of Taney's life has been misread or distorted as the result of the pain that his biggest decision caused.

Taney was a believer in state's rights, but was also an unbending supporter of the Union. As his legal philosophy developed, he also became an opponent of slavery. He was a slave-owning resident of Maryland who freed his own slaves. As a prominent lawyer, he defended a Methodist minister who had been indicted for inciting slave insurrections, and stated on the record that "slavery is a blot on our national character."

But Taney's stand on state's rights, combined with the increasing militancy of the northern anti-slavery faction, led to a clash which would forever taint Taney's record. Increasingly, Taney saw the saber-rattling of the North as a threat not to slavery so much as a threat to sovereign state powers. That led him into being one of the first to call the growingly-militant abolitionist movement "northern aggression." When the inevitable clash finally occurred at the Supreme Court, Taney had expressed hopes that his decision would calm the waters between the North and South and end the violent clashes between the slaveholders and the abolitionists in the territories. The decision had exactly the opposite effect.

In Dred Scott v. Sandford, Taney ruled intemperately that the slaves were "that unfortunate race which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence and when the Constitution of the United States was framed and adopted." He further declared that slaves were "beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far unfit that they had no rights which the white man was bound to respect." Much historical evidence indicates that he wrote those words only to mollify the South so that he could segue into a state's right to free its slaves (or not) without federal interference. That led him further into the fatal mistake of supporting states' rights by declaring human beings to be tantamount to property, properly the subject of interstate rules regarding the theft or removal of property from one state to another.

Instead of having the effect planned, the South read it as a legitimization of slavery, and the North read it as a call to arms. What was an attempt at compromise ended up as the final explosion which led directly to the Civil War. The final irony which Taney would never be able to appreciate, is that on the day he died, his home state of Maryland freed its slaves.

EARL WARREN: The Chief Justice best known to living Americans, Warren was appointed by President Eisenhower in 1953 and served through the spring term of 1969, some of the most turbulent times in America since the Civil War. He had intended to retire earlier, but his replacement nominated by President Johnson, Abe Fortas, was caught up in a scandal, so Warren agreed to remain on the Court until a replacement could be confirmed the next year.

Earlier in his career, Warren had been widely regarded as a political and judicial conservative. After reaching the rank of lieutenant in the army during World War I, Warren went on to a legal career. He clerked for the California Stae Assembly Judiciary Committee, then served as assistant district attorney of Alameda County where he caught the attention of the powerful Republican publisher of The Oakland Tribune. He was appointed as district attorney, and was subsequently re-elected to the post for three further terms. He had a dual reputation as being very tough on crime and very authoritarian in his dealings with subordinates.

Warren became so famous and so popular, that in his run for California Attorney General in 1938, he was nominated by his own Republican Party, but also by the Progressive Party and the Democratic Party (California has had many strange election laws and stranger political parties over the years). Needless to say, he won. Warren continued his crusade against crime, including closing down the gambling ships which operated off the coast of California from San Diego to Santa Barbara.

As Attorney General in 1941, Warren ordered the internment of Japanese-Americans and Japanese aliens without any state or federal enabling legislation or court approval. He defended that decision throughout his public career, though he mentioned it as a regret in his autobiography after retirement. In 1942 and 1946, with the same all-party endorsements, Warren was elected governor of California. He was elected again in 1950, this time as the candidate of the Republican Party only. He was the only three-term governor in California history.

During his governorship, Warren continued his war on crime. In 1947, he signed a revision of the California Education Code which finally ended racial segregation in California schools. The act of the California legislature was in response to an earlier California Supreme Court ruling which declared segregation unconstitutional according to the California state constitution. It was an uncontroversial piece of legislation, and most people still considered Warren to be a conservative who was merely implementing the will of the people, the legislature, and the state court.

In 1952, Warren was still riding high and was considered a front-runner for the Republican nomination as President. After a meeting with Eisenhower, Warren threw his favorite-son California delegation to Eisenhower. It is commonly thought that Warren's appointment as Chief Justice was part of a deal to assure Eisenhower's nomination. Eisenhower was satisfied with the deal because he wanted a conservative Chief Justice, and Warren's record gave him no cause for pause.

Warren presided over many landmark Supreme Court decisions. Many are accepted as good law pushed forward by bad legal reasoning, liberal political thinking, and an all-new concept of "judicial activism." Conservatives describe the philosophy as a change from the traditional view that "if it isn't addressed in the Constitution, it doesn't exist" to "if it isn't in the Constitution, we'll put it there either by finding the hidden text which no previous court had discerned, or discovering "penumbras and emanations" which lead us to believe that the Founders meant for it to be there." Warren is believed to have supported many of these decisions after a liberal epiphany of some sort, but left the research, framing and publication of the opinions to others, particularly William O. Douglas (a Franklin Roosevelt holdover) and William J. Brennan (appointed by Eisenhower in 1956 as another "conservative" justice).

The crown of Warren's achievements is usually considered to be Brown v. Board of Education of Topeka, Kansas, which once and for all declared school school segregation to be unconstitutional. Although most people today agree that school segregation was unconstitutional, notable legal scholars point to the decision as the forerunner of many Warren Court decisions which reached the right result using the wrong legal reasoning. Instead of simply saying "the Constitution forbids invidious discrimination based on race, creed, color or national origin, the Court instead used the argument of NAACP lawyer Thurgood Marshall that "separate is inherently unequal (more a philosophy than a legal argument)." The decision can be seen as political activism rather than legal and constitutional work. Many consider it sloppy, allowing many further years of litigation over separation based on sex, geographical location, or simple ability. One of the purposes of carefully crafted rulings is they fend off future unrelated litigation. Poorly-reasoned or overly-broad decisions invite further litigation.

Other landmark decisions include Gideon v. Wainwright (requiring court-appointed counsel for indigent defendants regardless of the degree of the crime), Miranda v. Arizona (requiring a pro-forma recitation of basic constitutional rights to criminal defendants under arrest or the prime focus of a criminal investigation), and Loving v. Virginia (the final ruling banning laws forbidding inter-racial marriage). Between 1962and 1964, the Court also issued rulings which together established the "one man, one vote" rule nationwide (originally addressing voting rights based on property ownership and tax-paying status). In the 1965 case of Griswold v. Connecticut (a marital contraception case), the Court discovered a "right to privacy" which no previous court had ever found in or near the Constitution.

All three Chiefs had very interesting and very public histories prior to their confirmation to the Supreme Court. All had discernible judicial philosophies prior to their appointments, though Warren actually had never sat on the bench. They are only high-profile examples of one truism of judicial history. No matter how carefully reviewed, no matter what the prior record, and no matter what the political leanings of a candidate for the Supreme Court, the bets on future performance on the bench are regularly proven to be completely wrong. In fact, after his retirement, President Eisenhower is reputed to have declared that his appointment of Earl Warren to the Supreme Court "was the biggest damned-fool mistake I ever made." The combination of the status of the Court as the one which all other courts must follow and lifetime appointment leaves a justice free to take whatever stance he or she wants, including a complete reversal of their prior opinions and judicial philosophy. Many have done exactly that.