In the next week or so, the Supreme Court will be ruling on whether parts or all of Barack Obama’s Patient Protection and Affordable Care Act, specifically the mandate on making people buy health insurance, is constitutional or not. This will have a major affect on the President’s prestige and political agenda, as this health care reform law is the President’s major achievement on domestic affairs. This is not the first time, however, that the President and the Supreme Court has clashed. James F. Simon, a Martin Professor of Law and Dean Emeritus at New York Law School, has written three books about different times in history where the Executive Office and the Supreme Court have had clashes over the limits of the federal government. His three books, What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States, Lincoln and Chief Justice Taney: Slavery, Secession, and the President’s War Powers, and FDR and Chief Justice Hughes: The President, the Supreme Court, and the Epic Battle Over the New Deal describe three periods in which a strong President and an equally strong Chief Justice clashed over the limits of the Presidency and the Supreme Court. I’m reading FDR and Chief Justice Hughes right now, and hope to read the other books soon.
What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States describes the struggle between President Thomas Jefferson and Supreme Court Chief Justice John Marshall over the constitutional relationship between the executive and judicial branches of government. Thomas Jefferson was the third President of the United States and he was a Republican who strongly believed in the power of state governments as a checks and balance to the power of federal government. John Marshall was a strong federalist who served as Chief Justice from 1801 to 1835. In Supreme Court decisions like Marbury vs. Madison, Fletcher vs. Peck, McCulloch vs. Maryland and Cohens vs. Virginia, Marshall enforced the Supreme Court’s right of judicial review, gave the Supreme Court the right to strike down state laws as unconstitutional, and affirmed federal supremacy over the states. Though Jefferson and Marshall were first cousins, their philosophical difference led to bitter conflicts over the meaning of the constitution. Joseph Ellis, an eminent historian, wrote in a review of the book for the New York Times Book Review
Simon hits his stride once Jefferson ascends to the presidency, in 1801, and Marshall, the mightiest of the ”midnight judges” appointed by the lame-duck President Adams, begins his long career as chief justice of the United States. The discussion of the landmark decision Marbury v. Madison, which established the principle of judicial review, shows Marshall as the master of what Jefferson called ”twistifications,” meaning arguments that circle back to do their greatest damage to Jefferson’s cause while claiming to defend it. The chapter on the impeachment trial of Justice Samuel Chase, another defeat for Jefferson, is a model of narrative history written by someone who knows the law. (The Chase trial became an important precedent during the Clinton impeachment trial because of the lofty standard it set for ”high crimes and misdemeanors.”) The tour de force is Simon’s chapter on the treason trial of Aaron Burr, the best brief version I have read. Hollywood could have a field day with this story, which features a supremely confident, if thoroughly conspiratorial, Burr; an obsessed Jefferson, hellbent on sending Burr to the gallows; and a laconic, slightly mischievous Marshall, determined to deny Jefferson the prize. Marshall’s ”not guilty” decision not only freed Burr, it also made treason difficult to use as a political weapon. And it established clear limits on executive privilege that eventually came back to haunt Richard Nixon during Watergate.
Marshall, in effect, won every major battle, chiefly because his more expansive view of the Constitution as a binding contract among the American people had the future on its side, a destiny clinched by the defeat of the Confederacy in the Civil War…
Abraham Lincoln once said that America was founded on a proposition (i.e., ”We hold these truths . . .”), and Jefferson wrote it. More accurately, it was founded on an argument about what that proposition means. You could also say it was founded on an argument between 1776 and 1787 as the seminal moments of the American republic. Or you could say that it was founded on a disagreement over whether the term ”United States” was a singular or plural noun. The beauty of the dialogue between Jefferson and Marshall is that it contained all these renditions. The chief virtue of ”What Kind of Nation,” no small achievement, is to recover that dialogue in all its messy grandeur.
Lincoln and Chief Justice Taney: Slavery, Secession, and the President’s War Powers examines the clash between President Abraham Lincoln and Chief Justice Roger Taney over the powers that were bestowed to the President by the war powers in the Constitution. Both men strongly hated slavery, but Lincoln had a more expansive view of the powers of the federal government while Taney strongly emphasized its limits and the powers of the states. Though Taney opposed slavery and eventually freed his own slaves, he also believed that the Constitution gave the federal government no power to restrict the spread of slavery and this led to the infamous Dred Scott vs. Sanford decision of 1851. Lincoln believed that the Constitition gave the Presidency and the federal government implied powers in extraordinary times like the Civil War. In his inaugural address, Lincoln said:
But no organic law can ever be framed with a provision specifically applicable to every question which may occur in practical administration. No foresight can anticipate nor any document of reasonable length contain express provisions for all possible questions. Shall fugitives from labor be surrendered by national or by State authority? The Constitution does not expressly say. May Congress prohibit slavery in the Territories? The Constitution does not expressly say. Must Congress protect slavery in the Territories? The Constitution does not expressly say.
David Walsdstreicher wrote in a February 4, 2007 review for the Boston Globe
Taney, a devout Catholic Marylander who saw slavery as evil, had a gift for making compelling legal arguments. He helped Andrew Jackson attack the Bank of the United States on constitutional grounds, only to be turned down by an angry Senate for the post of Treasury secretary. But the Democrats won the Senate and Marshall died, enabling Taney to be confirmed as the new chief justice. The tide seemed to have turned against judicial supremacy and the national government.
Taney shocked and delighted his critics by refusing to lead a judicial revolution against Marshall’s nationalism. By the 1850s he was revered as a non partisan defender of the Constitution. That very reverence for the process of constitutional adjudication set the aging jurist on his collision course with Lincoln. Simon artfully paints Lincoln as a young lawyer from Illinois looking for a good case. Brilliant and passionate when he believed in his clients, Lincoln represented a Kentucky slaveholder who liked to bring his slaves back and forth from his farms on both sides of the Ohio River, until several ran away. He lost the case. As a congressman, Lincoln vainly demanded that the pro- war and proslavery Polk administration name the exact spot where Mexican forces had supposedly crossed the Rio Grande and attacked — earning himself the nickname “Spotty.” Only in 1854, with the Kansas-Nebraska crisis, did Lincoln find a fight worthy of his gift for conceding every point but the crucial one. He began to argue that slavery in the new territories went against the intentions of the Founding Fathers and could be legally excluded.
Taney argued nearly the opposite: The founders had made slavery the law of the land and its regulation a state matter. Had he been a pure states-righter or a party hack, though, he would not have wanted the Supreme Court to even hear a fugitive slave case like Dred Scott. Precisely because he wanted to preserve the Union as he saw it, Taney tortured the historical evidence in his famous declaration that blacks could never be citizens and had no rights. But Simon does not stop there. He follows the story into the Civil War, when Lincoln magnified the war powers of the presidency to save the Union and the Constitution from those he saw as its enemies. Taney, ailing and impoverished, stayed on the bench and vainly tried to save the states, and his Maryland friends, from the long arm of Lincoln’s law. War, he argued, does not change the constitutional limits of the federal government. In 1864, Lincoln went to his funeral — and a few weeks later appointed his Treasury secretary, the abolitionist Salmon P. Chase, to Taney’s seat on the court.
FDR and Chief Justice Hughes: The President, the Supreme Court, and the Epic Battle Over the New Deal describes the fight between Franklin Delano Roosevelt and Chief Justice Charles Evans Hughes over the constitutionality of the New Deal programs and Roosevelt’s subsequent attempt to pack the Supreme Court. Roosevelt’s New Deal programs were bringing relief to people suffering through a fifth year of the Great Depression, when the Supreme Court began to rule various statutes of the New Deal unconstitutional. In frustration, Roosevelt tried to pack the Supreme Court with justices more amenable to his political programs. In the prologue, James Simon wrote three paragraphs that sum up the book and says why this history is still important:
In official Washington, only the U.S. Supreme Court appeared immune to FDR’s spirit. The Hughes Court was anchored by four ideological conservatives intractably opposed to Roosevelt’s New Deal. The Court’s liberal wing was led by Justice Louis Brandeis, supported by Associate Justices Benjamin Cardozo and Harlan Fiske Stone.
Chief Justice Hughes and his fellow Hoover appointee, Associate Justice Owen Roberts, held the balance of judicial power throughout the critical constitutional battles over New Deal legislation. By force of his commanding intellect and exemplary public service, Hughes was expected to lead the court. But in which direction? He sometimes appeared to split the differences between the two warring factions, writing eloquent majority opinions protecting civil liberties but frequently joining the Court’s conservatives in striking down New Deal statutes.
Roosevelt publicly derided the Court’s anti-New Deal decisions as relics of a bygone “horse and buggy” era. His criticisms did nothing to deter a Court majority that continued to declare one New Deal statute after another unconstitutional. Not even his triumphant landslide re-election appeared to influence the justices. Finally, in frustration and anger in early 1937, the president proposed a so-called reform plan that would allow him to appoint one new judge for every sitting justice seventy years of age or older. Because six justices were over seventy, including Hughes, the plan would have permitted FDR to stack the Court with new appointees favorable to the New Deal. His radical proposal raised two unsettling constitutional questions: Should a president be able to mold a Court to meet his political goals? And should ideologically driven justices be allowed to frustrate the popular will? Both questions are as relevant in the twenty-first century as they were in the Great Depression.
The questions that Simon asks in the last paragraph are relevant in light of the tensions between the Obama administration and the Roberts Supreme Court. The debate between liberals and progressives, who believe an activist federal government is necessary to help those suffering in this economic crisis, and fiscal conservatives and Tea Party members, who believe in a very limited federal intervention and have much more confidence in the free markets and local control, are echoing debates that Thomas Jefferson, John Marshall, Abraham Lincoln, Roger Taney, Franklin Roosevelt and Charles Evans Hughes had. The Tea Party are channeling the spirits of the Anti-Federalists, the Jeffersonian Republicans, the States Rights activists and the Barry Goldwater Republicans. Obama and the Democrats are in the spirit of the Federalists, the Radical Republicans of the Civil War era, and the New Dealers. This debate will never be resolved, and I think that’s a good thing for this country. As long as we respect the right of everyone’s freedom of speech, this debate will always invigorate our political discourse and inspire new activists, like the Tea Partiers, the Progressives, the Occupy Wall Street people, and many more in the future. One of the great things about the current book that I’m reading is though FDR and Hughes clashed with the New Deal and the court packing episode, it didn’t affect their friendship. They were able to respect the right of the other person to have a difference of opinion and they maintained great affection for each other. Simon would write:
Whatever enmity existed between Roosevelt and Hughes over the Court-packing plan had disappeared by 1939. Hughes denied that his relations with the president had ever been less than cordial. And Roosevelt, by the spring of 1939, had no reason to complain about the Chief Justice. The Supreme Court was no longer an obstacle to his legislative ambitions, which was more than he could say for rebellious conservative Democrats in Congress.
The friendly relations between Roosevelt and Hughes were vividly illustrated in June 1939, when the president prepared to welcome King George VI and Queen Elizabeth to Washington. Roosevelt had issued the invitation to the king in September 1938, at the height of the Munich crisis, as a goodwill gesture to solidify relations between the two nations. The president planned every detail of the royal couple’s visit, from the parade to the White House to the weekend menu at Hyde Park, which included hot dogs on the lawn. Chief Justice and Mrs. Hughes were invited to the state dinner, but Hughes, who was undergoing two days of medical tests, had to decline. Roosevelt personally called Antoinette Hughes to express his regrets that her husband could not attend. He urged her to attend the dinner without the Chief Justice and promised to seat her next to the king, if she did. She attended the dinner, and the president kept his promise.
A vimeo video of James F. Simon talking about Thomas Jefferson and James Marshall