Out of Order Read online

  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.

  Portrait of Chief Justice John Marshall. (Photograph Credit 1.1) Portrait of William Marbury. (Photograph Credit 1.2)

  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 Ma
rch 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.

  To be fair, Roosevelt wasn’t just imagining things. In the 140 years between 1790 and 1930, the Court had overruled only sixty acts of Congress. Yet during Roosevelt’s first term alone, 1933–37, the Court overruled twelve acts—and some of those were the President’s favorites! Among other laws, the Court struck down legislation including the National Industrial Recovery Act, the Railroad Retirement Act, and the Agricultural Adjustment Act. In fact, on the aptly named “Black Monday,” May 27, 1935, the Court struck down three pieces of legislation all at once. At that pace, President Roosevelt feared the Court would soon dismantle his New Deal reforms completely.

  His clever proposal was to get Congress to pass a bill that would let him appoint a new Justice every time a Justice turned seventy years old. Coincidentally (or not), six members of the Court were over seventy at the time. The plan, in other words, would have ensured the President various changes in the makeup of the Court.

  In the end, President Roosevelt’s court-packing plan failed to pass. The plan faced enormous public opposition because it was perceived as an effort to stack the Court with champions of his agenda and stifle its independence. A critical supporter of the legislation, moreover, Senate Majority Leader Joseph T. Robinson, unexpectedly died mere weeks into the Senate’s floor debate of the bill. The Senate voted to send the bill back to the Senate Judiciary Committee, and the bill was soon scrubbed of the provisions providing for additional Justices.

  And so the Court survived what many viewed as one of the greatest crises of its history. It emerged larger in influence, if not in numbers, and more keenly aware of its sometimes tenuous, but always interesting, relationship with the presidency.

  PERHAPS THE MOST SIGNIFICANT story to be told on this subject—at least in terms of the legal precedent with which it provided us—took place in April 1952, during the Korean War. It featured President Harry S. Truman, a steelworkers’ union, and Justice Robert Jackson. Justice Jackson had as a law clerk at the time a bright young lawyer by the name of William H. Rehnquist—the future Chief Justice.

  At this critical time in the Korean War effort, the steel industry and the United Steelworkers Union had reached an impasse in their negotiations. A looming strike by more than six hundred thousand workers threatened to cripple the production of weapons and, in Truman’s eyes, endanger American troops serving in Korea. Ever sympathetic to the steelworkers, President Truman had worked for months to prevent the strike, and he turned to his advisers for counsel. The recommendation? To seize the steel mills, forcing the companies and labor to return to the bargaining table and management to retract what Truman viewed as “outrageous” demands for regulatory approval of significant price-per-ton increases. The President took the advice. Just hours before the scheduled strike, in an impromptu press conference, he stared into the camera and announced on national television that he would order his secretary of commerce, Charles Sawyer, to take over the mills and keep them running.

  The President’s advisers, it turned out, had not counted on the courts entering the fray. Historical documents now tell us that they counseled him that the odds were low that the judiciary would involve itself in such a hot-button issue. They believed that the short-lived seizure would serve its designed purpose of nudging labor and management into more productive talks, and have no wider ramifications. What resulted was something much larger: an act that would forever impact the American presidency and a watershed Supreme Court decision defining the limits of presidential power.

  It began with Judge David Pine of the U.S. District Court for the District of Columbia. Judge Pine, to the surprise of the administration—and even the steel companies’ own lawyers—declared the seizure unconstitutional, saying there was “utter and complete lack of authoritative support” for a President’s seizure of private businesses. The U.S. Court of Appeals for the D.C. Circuit then entered a stay.

  Finally, the Supreme Court heard expedited arguments. The government emphasized that the President’s seizure was on sound historical footing, noting wartime government seizures of private property from the Revolutionary War and War of 1812 through Lincoln’s Emancipation Proclamation and World Wars I and II. The steel industry, on the other hand, argued that the President did not have any power to seize private property without express authorization from Congress.

  A blindfolded Justice in his judicial robes labeled “Supreme Court” holds a scale with his left hand. On the left scale is a rolled document labeled “U.S. Constitution” balanced against President Truman sitting on the right side. The side with the Constitution is obviously heavier. This cartoon refers to the Steel Seizure Case in 1952. (Photograph Credit 1.3)

  In its decision in Youngstown Sheet & Tube v. Sawyer,10 the Court echoed the district court’s rebuke of President Truman: He had, indeed, exceeded his powers under the Constitution. Writing for the majority, Justice Hugo Black rejected the administration’s argument that in a time of war, the President could exercise his emergency powers in so broad a fashion as to make them almost boundless.

  The most enduring opinion in the case, however, was the concurrence penned by Justice Jackson—an insightful exegesis of the issue of presidential powers. Justice Jackson endeavored to avoid drawing any rigid lines between Congress’s power and the President’s power. Instead, he provided a three-part framework for considering the relationship between presidential powers, congressional powers, and the Court’s level of deference. First, when the P
resident acts with Congress’s approval, the President’s power is at its zenith; in such cases, the judiciary will rarely push back on the President’s exercise of power. Second, when the President acts without congressional approval or disapproval, this represents a “twilight” area where the rigor of judicial review is heightened. Third, when the President acts amid congressional disapproval, his power is at its “lowest ebb,” and the Court will usually invalidate the action. In Justice Jackson’s view, President Truman was operating in this third category—in the face of congressional disapproval of his actions.

  Jackson’s concurrence became the true legacy of the Youngstown Sheet & Tube case. To this day, scholars and judges refer to his three-part framework to evaluate fundamental questions about the lawfulness of executive branch actions.

  Truman purportedly asked a top adviser to list on a single sheet of paper the reasons why the Court’s decision was wrong. The first line of the paper, we’re told, read as follows: “The Supreme Court substituted its judgment for that of the President as to the seriousness of the cessation of production of steel at this time.”11 When the President was invited to a dinner with the Justices, he reportedly went to the dinner armed with that list of wrongs.

  We will never know for certain whether Truman delivered that message to the Justices. It is rumored, however, that at the close of the dinner, he turned to Justice Black and quipped, “I don’t like your law, but this is mighty good bourbon.”12

  MORE RECENT EXAMPLES WHERE the President and Supreme Court have advanced very different perspectives on significant matters involve the War on Terror, which began in the aftermath of the September 11, 2001, attacks against the United States. Those attacks on American soil spawned not only fear and terror, but legislation—both in the United States and abroad—to combat terrorism and prevent future attacks.