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.