The Wild West: Justice Field, Sex and Scandal, A Foiled Assassination and Murder

Historically, U.S. Supreme Court Justices have avoided drama. A bookish group, given to tranquility and docility, the Justices mark their time in the quiet of elegant court chambers, deciding cases and writing opinions. There is, however, an exception to this institutional serenity—the Terry Affair—one that captured the attention of the country and the citizenry’s lurid interest in sex, scandal, and murder.

In the summer of 1889, Justice Stephen Field, an iconic 19th Century conservative jurist, who sat on Supreme Court for 34 years and had a knack for arousing hostility and alienating colleagues, found himself at the center of the most wild, violent and dramatic moment in the Court’s history. Field, who had moved West from Connecticut in 1849 as part of the California Gold Rush, was known for brandishing a bowie knife and pistol and wading into controversies. While in California, he practiced law and distinguished himself at the Bar and in state politics. In 1857, he was was elected to the California Supreme Court and served for six years. In 1863, President Abraham Lincoln appointed Field to the Supreme Court.

The Terry Affair emerged from the context of a judicial opinion and the anger that it inspired. Field had sat on the California bench with David S. Terry. Terry had married a woman, Sarah Hill. When a lawsuit involving a contested previous marriage of Mrs. Terry came before Field, who was sitting on the Ninth Circuit, he rendered an opinion that invalidated the former marriage and provided an extended history of her less than spectacular past. With this pronouncement, Mrs. Terry leaped from her seat and accused Field of being bribed to rule against her. Field ordered her removed from the courtroom. Mr. Terry, Field’s former colleague on the California court, proceeded to knock down a marshal and pulled a knife. The Terrys, who had made threats against Field’s life, were sentenced to jail for contempt of court.

In August of 1889, shortly before the Terrys were to be released from jail, Justice Field was returning to California to sit on the Ninth Circuit. Field was advised to defer the trip, but he declared he would not be deterred by a “ruffian” who “made threats to his body.” The U.S. Attorney General arranged for Justice Field’s security by appointing David Neagle to be his bodyguard. Field, accompanied by Neagle, was traveling by train from Los Angeles to San Francisco. As it happened, the Terrys were on the same train. While eating breakfast, Field and Neagle and Mr. and Mrs. Terry saw one another. Field sat at a table between the Terry’s table and the door. An encounter seemed inevitable. Upon seeing Justice Field, Mrs. Terry walked past the Field Table and left the dining car. Within a few minutes, Mr. Terry walked to Field’s table and struck the Justice in the face, twice. Neagle, believing Terry was drawing a knife, jumped from his seat, yelled, “Stop, stop,” and shot Terry two times, killing him. Mrs. Terry returned to the dining car while carrying a satchel with a gun and found her husband dead.

Mrs. Terry filed a complaint, charging Field and Neagle with the murder of her husband. Justice Field was arrested but released shortly after the U.S. Attorney General had put pressure on local authorities. This sensational story captured newspaper headlines and captivated the nation. A Supreme Court Justice had never been arrested and, for that matter, had never been involved in scandal, let alone embroiled in a murder case. And, it should be noted, no Justice, as far as we know, has ever been targeted for assassination. Neagle was charged by the State of California with murder, but he was protected from state prosecution on grounds of justifiable homicide after the case reached the Supreme Court on a Writ of Habeas Corpus.

Justice Field, known by friends and colleagues for his stubbornness, self-righteousness, and vindictiveness, refused to let the incident lie. A year later, a California journalist who had written a somewhat generous account of Terry’s life, was nominated by President Benjamin Harrison to serve as Register of the U.S. Land Office in San Francisco. When Field learned of this nomination, he exercised his influence to force its withdrawal. One of Field’s contemporaries observed, “When Field hates, he hates for keeps.”

Justice John Rutledge: A George Washington Favorite and Founding Era Juggernaut

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John Rutledge of South Carolina, a founding era titan who held virtually every important political office and judicial post from the pre-Revolutionary years through the Constitutional Convention, was one of George Washington’s favorites and easily fulfilled the first President’s seven criteria for an appointment to the first U.S. Supreme Court. Had it not been for President Washington’s interest in naming John Jay as the Court’s first Chief Justice, as a means of honoring the key State of New York, whose ratification of the Constitution had proved so decisive, he would have appointed Rutledge, which the South Carolinian and his supporters craved.

Washington’s admiration for Rutledge dated to their strategic consultation during the Revolutionary War when Washington served as Commander in Chief of the continental army and Rutledge as his state’s Commander in Chief. Washington, who adhered to his criteria more predictably than his successors, saw in Rutledge’s distinguished career a man who fit his yardstick for service on the nation’s High Tribunal. Washington sought support and advocacy for the Constitution, distinguished service in the Revolution, active participation in the civic life of a state or the nation and prior judicial service. He sought, as well, “favorable reputation with his fellows” or personal ties to Washington himself, geographic suitability and love for the nation. To Washington, the most important of these factors was advocacy of the Constitution.

Rutledge was born into a wealthy family in 1739, educated by his father, a physician, until his death in 1750, and then by an Anglican minister. He read law before enrolling in the Middle Temple in London, in 1754. He became a member of the English bar in 1760 and then returned to South Carolina in 1761, when he opened a law office and was elected to the colonial assembly, in which he served until the Revolution. His law practice, among the most lucrative in the province, enabled him to purchase 30,000 acres. Like John Adams in Massachusetts, Rutledge believed in the right of defense for all classes, and he represented indigents who were charged with serious crimes.

Rutledge was widely admired throughout South Carolina, which led to election to national office. He was elected in 1765 to the Stamp Act Congress in New York, where he chaired the committee that drafted the petition to Parliament for the restoration of Americans’ rights. He was elected to the First Continental Congress in 1774, but he was reluctant to support measures that he believed would lead to war. A year later, he was elected to the Second Continental Congress and changed his mind about the growing tensions with England. He rejected parliamentary control over the colonies and supported the establishment of independent states and the measures that would place America on a war footing. He played a leading role in drafting the South Carolina Constitution of 1776 and was elected by the state assembly as its president and commander-in-chief. His service to South Carolina included stints as governor and election to Congress.

Rutledge was a heavyweight in the Constitutional Convention, among the most influential of the leaders in Philadelphia. He was appointed chair of the Committee of Detail, which began writing the first draft of the Constitution on July 26, 1787. Along the way, Rutledge introduced a motion to add the Supremacy Clause –Article VI—to the Constitution, which declared federal laws superior to state laws. He lent his voice to the group that advocated the appellate authority of the U.S. Supreme Court over state court decisions, which reinforced the Supremacy Clause and promoted the all-important uniformity of constitutional interpretation. He was also an advocate of judicial review, which gave federal courts the authority to review and declare unconstitutional the laws enacted by Congress and the actions of the president, power which he believed integral to the doctrine of checks and balances. And Rutledge echoed the unanimous view of the Convention, that the executive should not have the power of “war and peace.” The constitutional authority to initiate military hostilities on behalf of the nation would be vested by Article 1 of the Constitution in Congress, not the presidency.

Rutledge was disappointed that Washington had not named him Chief Justice of the Supreme Court in 1789. Although appointed Senior Justice, Rutledge suffered from ailing health and resented the arduous strain of riding circuit to preside over federal trials. He resigned from the Court in 1791 to assume the chief justiceship of South Carolina. In 1795, when John Jay resigned as Chief Justice of the U.S. Supreme Court to become Governor of New York, Rutledge beseeched Washington to name him as Jay’s successor. Washington was happy to oblige Rutledge’s wish and placed him on the Court as a recess appointment, which he held for four months. However, the Senate rejected Rutledge’s nomination later that year because of his emphatic denunciation of Jay’s Treaty.

The rejection, his wife’s death in 1792, declining health, financial bankruptcy and the loss of his reputation, sent him into a depression and odd behavior that led friends to question his mental stability. He tried, unsuccessfully, to drown himself in the Ashley River and lived the remainder of his life in virtual solitude in Charleston until his death in 1800.

Government By Judiciary: The Four Horsemen, In The Saddle, Expert Influence and Thwart New Deal Programs

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The remarkable influence of the Four Horsemen, as demonstrated by their success in thwarting on constitutional grounds President Franklin D. Roosevelt’s New Deal plans to resuscitate an economy brought to its knees by the Great Depression, reminds us of the capacity, for better or worse, of the Supreme Court to rewrite Alexander Hamilton’s modest description of the judiciary as the “least dangerous branch.” The pitched battle between the Four Horsemen—Willis Van Devanter, James McReynolds, George Sutherland and Pierce Butler—and President Roosevelt on the question of whether the Constitution empowered extensive governmental intervention to regulate a free market economy in a way that surpassed previous efforts, represented a historic contest for authority to shape and control the course of American governance. The spectre of “government by judiciary” had been brought center stage.

In his First Inaugural Address, President Roosevelt said that if the country was to rise from the abyss into which the economy had sunk, that it “must move as a trained and loyal army willing to sacrifice for the good of a common discipline, because without such discipline no progress is made, no leadership becomes effective.” But Roosevelt faced a wall. The Supreme Court’s resistance to governmental power to legislate relief could not be breached. While none of the Four Horsemen was destined to appear on the list of “great” Justices, it was an exaggeration to characterize them as failures.

As a unit, the Horsemen were successful in resisting change. Justice Van Devanter, the first of the four Horsemen, found writing terribly difficult, and he could barely crank out five opinions a year. Yet, he arrived at the Court’s conference with well-developed ideas and effective arguments, indicating an ability to secure support from his colleagues before any writing was required. Justice McReynolds, whom President William Howard Taft called, “Old Mac,” as if he were an avuncular figure, congenial and collegial, when, in fact, he was offensive and unfriendly, was not one to cobble together votes on the basis of charm and good will, but he was a zealot, displaying a single-mindedness that energized the other Horsemen. Justice Butler did not always adhere to the principles of decorum during argument, but he was reliable, resolute and firm. Justice Sutherland, the leading intellectual member of the Four Horsemen, had a knack for clothing his reactionary views with contrived rhetoric from the American founding that bestowed on his positions the pillars of tradition and wisdom. The Horsemen were united in a way that was unrivaled by any other bloc of Justices in our history. They gathered on Friday nights to strategize about the arguments and tactics that they would employ at the Court’s Saturday morning conferences.

The Four Horsemen believed that the Constitution was not intended to change with time and that its prohibitions on governmental regulation of the economy were permanent. Accordingly, citizens could transact their business without governmental interference. These positions, essentially 19th Century judicial glosses on the Constitution, were a product of judicial innovation, or judicial adaptation to prevailing social views and economic doctrines at the time, since nothing in the constitutional text supported them. This became a serious problem for the Four Horsemen. If they could accept judicial gloss from the 19th Century, grounded on judicial adaptation of the Constitution to the needs of the times, why couldn’t they accept New Deal adaptations, widely viewed as critical to the renewal of the nation? The Horsemen were trapped. They couldn’t very well embrace innovative judging and judicial gloss in an earlier era but reject it in their own. There were no intellectual premises to justify such inconsistency.

When the Court, led by the Four Horsemen, rejected the exercise of national power to maintain fair industrial and labor standards, and all federal aid to agriculture, as well as regulation of mining and manufacturing and the use of the taxing and spending powers to promote the general welfare, it appeared that Congress was, and should be, rendered impotent to lift the country from the depths of the Depression. If there was doubt about the Horsemen’s jurisprudence, it was swept away when the Court held that there was no power in either the states or the federal government to enact a minimum wage law. The denial of authority to create a floor beneath the feet of American workers insured their continued poverty and misery. The Court was clear: no governmental power existed to meet the urgent needs of the 20th Century community.

President Roosevelt, among many critics, laid bare the threat posed by this jurisprudence. “We have reached the point as a nation,” Roosevelt declared, “where we must take action to save the Constitution from the Court.” Roosevelt’s answer was his “Court-packing” plan of February 5, 1937. Although vulnerable to criticism and unpopular in Congress and throughout the nation, it nevertheless moved the Court to change its mind about the meaning of the Constitution and its adaptability to the crises of the times. The view that the Constitution could be adapted to the urgent needs confronting the nation marked the decline of the Horsemen’s influence. We turn next week to the Court’s change, what one contemporaneous commentator described as “the switch in time that saved nine.”

Chief Justice Oliver Ellsworth: Impeccable Pedigree for a Supreme Court Appointment

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President George Washington’s nomination in 1796 of Oliver Ellsworth to serve as the third Chief Justice of the U.S. Supreme Court was met with universal approval. Ellsworth boasted a record of experience that few then, and none since, could match. Above all, Ellsworth was a genuine heavyweight in the Constitutional Convention, among a handful of delegates who spoke frequently and authoritatively and played a key role in shaping the final version of the Constitution that the American people ratified in 1787-1788.

Washington, who had known Ellsworth since the Revolutionary War and during his representation of Connecticut in the Continental Congress for six years, observed the intellectual powerhouse at work in the Philadelphia Convention throughout the summer of 1787. As President of the Constitutional Convention, Washington observed Ellsworth’s skillful negotiation of the Great Compromise that saved the proceedings from collapse, admired his leadership in crafting Article III of the Constitution—the Judiciary Article—and appreciated his espousal of the awesome power of judicial review, an American invention and major contribution to political science and law. Already regarded as one of the nation’s ablest attorneys, Ellsworth demonstrated anew his leadership in championing the separation of powers and checks in balances with the insertion of a judicial check on the legislative and executive branches, to ensure that they did not transgress their boundaries. Ellsworth’s credentials and qualifications to serve on the nation’s High Bench, based on his participation in the Convention alone, were undeniable.

They were further burnished by his effective leadership as a member of the U.S. Senate, at the time of his appointment. Ellsworth had been the principal author of the Judiciary Act of 1789, the first bill passed by the First Congress, and the most important judicial legislation in the nation’s history. The Judiciary Article of the Constitution was not self-executing. Without enactment of a statute, the Supreme Court and lower federal courts could not be called into existence. The 1789 Judiciary Act thus created the Supreme Court and set forth its jurisdiction. Ellsworth, along with William Paterson of New Jersey, who had been a delegate to the Convention and was destined for an appointment to the Supreme Court, were the key members of the Senate committee that drafted the bill. The principal draftsman was Ellsworth; indeed, the last drafts of the legislation were in his handwriting. One of his senatorial opponents declared, “this Vile Bill is a child of his.”

The Judiciary Act resolved the question of whether there should be inferior federal courts, in their favor. It established the federal judiciary, with a Supreme Court, consisting of six Justices, as the highest court in the land, as well as a two-tiered system of inferior courts, with district courts located in each state at the base, and three circuit courts organized into the eastern, the middle and the southern circuits, each composed of two Supreme Court Justices and a federal district judge. The federal courts were given limited jurisdiction. The jurisdiction of the Supreme Court was provided for in the form that it has retained ever since. Crucial to the authority of the federal courts and the subsequent history of the nation was that the Supreme Court was given appellate jurisdiction not only over the lower federal courts, but also under Section 25 of the Act, jurisdiction over state courts that involved federal questions. The Supreme Court’s power to review state court decisions is what has been called “the keystone of the whole arch of federal judicial power.” Without it, the Constitution would be left to the interpretations of 50 state supreme courts, plunging the nation into constitutional chaos and crisis.

Sen. Ellsworth’s appointment to the Court was a major loss to the Senate. “The appointment of the C.J.” John Adams wrote to his wife, Abigail, “was a wise Measure,” even though by it, “we loose the clearest head and most diligent hand we had in the Senate.”

At the time of his appointment to the Court, Ellsworth was 51 years old. A strong Federalist and devout Calvinist who studied theology before switching to the law, Ellsworth had distinguished himself as a young national leader at the Convention, with the likes of other “youngsters” such as James Madison and Alexander Hamilton, and much was expected of him when he became Chief Justice. But poor health, the relatively light calendar of the Court and his acceptance of a diplomatic assignment to France, while serving on the Court for a little more than three years, left him little time to shape the Court’s development, let alone become a distinguished Chief Justice. As Chief, he did try, without much success, to initiate the policy of the Supreme Court handing down per curiam opinions or single decisions, for the entire Court as opposed to the English practice of seriatim or separate opinions by individual justices.

While abroad as part of his diplomatic assignment to end the undeclared war with France (1798-1800), Ellsworth resigned the chief justiceship, citing ill health. The timing of his resignation was politically important to President John Adams, who appointed John Marshall, another staunch Federalist, to succeed Ellsworth. Ellsworth returned to Connecticut, where he lived for seven more years.

Defending the Old Constitutional Regime: The Four Horsemen Reject Government as a Relief Society

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The adage that the Supreme Court follows the election returns certainly did not apply to the Four Horsemen – Willis Van Devanter, George Sutherland, James McReynolds and Pierce Butler. President Franklin D. Roosevelt had earned landslide victories in the 1932 and 1936 presidential elections, but that was not discernible in the behavior of the four conservative Justices who were in control of the Supreme Court.  As he faced the most dire economic circumstances in United States history and the grim challenge of dispensing hope to a nation caught in the clutches of despair, Roosevelt intended through dramatic policies and programs to lift the country from the depths of the Great Depression by taking the federal government into the relief business. But not if the Four Horsemen had anything to say about it.

On the heels of his second landslide victory, as he prepared for his second inaugural address in January of 1937, President Roosevelt’s New Deal program had been shattered by the Supreme Court. On “Black Monday”—May 27, 1935—the Court struck down the heart of his efforts. In declaring the National Recovery Administration (NRA) unconstitutional, the Court by a 9-0 ruling, smashed the system of minimum wages, maximum hours and workers’ rights. In rapid succession, the Court struck down the Roosevelt Administration’s farm policy, manufacturing program, and a minimum wage law, which aimed to put a floor underneath the citizens whose economy had cratered. From 1933 to 1936, the Court was knocking down statutes at a historic rate. Justice Harlan Fiske Stone, who filed strong dissents from the Court’s rulings, complained that the Court was creating “new doctrine faster than he could absorb it.”

The Court’s new doctrines were resurrections of old doctrines, into which the Four Horsemen breathed life. The Court believed it was holding the line against radical efforts by Roosevelt to reorder the nation. The Horsemen sought to preserve the old regime—limited federal government, the sanctity of private property and economic laissez-faire. Thoroughly frustrated by the Court’s dismantling of New Deal programs, Roosevelt denounced the Justices and their “horse and buggy jurisprudence,” as “judicial tyranny.” If Roosevelt sought a dynamic interpretation of the Constitution adequate to the crisis of the times, the Horsemen viewed the Constitution as an unchanging document, worthy of preservation in the storm of change brought by the popular president.

The first of the Four Horsemen appointed to the Court was James McReynolds, whom President Woodrow Wilson elevated from his post as U.S. Attorney General to the High Tribunal in 1914. Wilson’s appointment of McReynolds reflected both his political aim of winning the Tennessean’s native state in the 1916 presidential election and the compelling need to remove him from the cabinet because of his offensive behavior. Wilson could not afford to dismiss McReynolds from the cabinet without alienating Tennessee voters, so he gave him a “promotion” to solve political and personal challenges. Once McReynolds arrived at the Court, he swiftly alienated fellow Justices because of his anti-semitism and nasty habit of spatting tobacco about, without concern to locate a spitoon.

Three of the Four Horsemen were brought to the Court by William Howard Taft, through his power of appointment as president and his power of persuasion, as a Republican titan and Chief Justice.  President Taft named Van Devanter, Chief Justice of Wyoming, a prominent railroad attorney, advocate of conservative political ideology and well-connected to powerful U.S. Senators, to the Court. He was the second of the Four Horsemen. As a Westerner, Van Devanter fulfilled Taft’s goal of geographical balance on the nation’s High Tribunal. Van Devanter’s work as a judge on the Eighth Circuit Court of Appeals reflected Taft’s interest in a Justice who exalted property rights.

Taft spoke to President Warren G. Harding in 1922 about appointing George Sutherland, a U.S. Senator from Utah, whose reputation as a conservative intellectual, particularly as a theorist on law and the judiciary, placed him atop the list of potential nominees. Harding had relied on Sutherland for close counsel during his 1920 presidential campaign and was pleased to have Taft’s support. Sutherland’s brand of conservatism reflected suspicion of majoritarian government and resistance to legislative solutions to social problems, as well as assertions of civil rights and liberties against the government, views that had been developed while reading the work of leading intellectual conservatives in the 1890s. Taft had written Sutherland that “our views are very much alike.”

While Sutherland was well-known, Harding’s next appointment, with the encouragement of Taft, was Pierce Butler of Minnesota. Butler’s three chief qualifications for a seat on the Court, at least as far as Taft was concerned, were his Catholicism and standing as a Democrat, which would enhance the representative nature of the Court, and his friendship with Taft. Butler had made no intellectual contributions to the world of law and had argued just one case before the Court. The two had become fast friends while working on an arbitration proceeding involving the acquisition of a railroad. They stayed at the same hotel and dined frequently together. Later, Taft wrote Butler to say he hoped one day to welcome him to the Court.

We turn next week to the Horsemen’s approach to interpreting the Constitution.

Long Reach of the Pardon Power: The Framers, Lincoln and Biden

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The intriguing President’s Day news that President Abraham Lincoln granted a pardon 160 years ago to President Joe Biden’s great-great-grandfather revived Americans’ fascination with the purpose, concerns, scope and history of this sweeping executive power.

Thanks to the good work of historian David J. Gerleman, we now know that President Lincoln pardoned Moises J. Robinette, a civilian hired as a veterinary surgeon for the Union army, who was court martialed on charges resulting from a brawl on the evening of March 21, 1864. Robinette was found guilty of inciting a “dangerous quarrel,” violating good order and military discipline. Robinette was sentenced to two years of incarceration at hard labor.

Robinette was saved by three army officers who knew him and petitioned Lincoln to grant a pardon. The three officers wrote that the sentence was too harsh. Robinette was “defending himself and cutting with a Penknife a Teamster much his superior in strength and Size, all under the impulse of the excitement of the moment.” This letter supported Robinette’s assertion of self-defense. It finished with a strong reminder that Robinette had been “ardent and influential” in opposing “traitors and their schemes to destroy the Government.”

The officers sent their petition to the newly elected U.S. Senator from the newly admitted state of West Virginia, who lent his voice in support and sent it along to Lincoln’s valued private secretary, John G. Nicolay. Nicolay, anticipating future protocol for pardon requests, forwarded the petition to the judge advocate general, asking for a report and recommendation for presidential review. Lincoln, who exalted constitutional government and legal process, read the report and persuaded by the arguments, issued a pardon to Robinette, writing, “Pardon for unexecuted part of punishment. A Lincoln. Sep. 1, 1864.” The War Department issued Special Orders No. 296, freeing Robinette from prison.

President Lincoln’s exercise of the pardon power was consistent with the aims and purposes of delegates at the Constitutional Convention, who designed the authority for the purpose of correcting miscarriages of justice. The pardon power, defined in Article II, section 2, provides that the President “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”

The pardon power entails broad discretionary authority for the president. The Framers of the Constitution, well aware of the availability of the pardon authority and its use in ancient Rome, fixed their gaze on the practice in England, as the starting point for their own design. The English monarchy had awarded pardons for centuries, sometimes to promote principles of law and justice, but often for less than meritorious reasons. Kings, notorious for their spendthrift ways, exhausted parliamentary funding– referred to as “gifts” to the king —and turned to debtor prisons for aid. The king offered prisoners an immediate release in return for a pledge to pay their debts later.

The monarchical abuse of the authority—pardons to aides and cronies who would shield the king for involvement in questionable acts—provided a cautionary lesson to America’s founders. The Framers’ greatest concern about vesting the pardon power in the executive, the Convention debates reveal, was that the president would pardon those who might aid his subversion of the Constitution and laws and thereby screen himself from judgment, accountability and punishment.

On September 10, 1787, George Mason of Virginia, echoed the concerns of members of the House of Commons a century earlier, who felt helpless to prevent monarchical abuse of the pardon power. Mason said of the presidential pardon power, “it may be sometimes exercised to screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt.”

A president who could commit crimes with the help of those whom he pardoned, the Framers understood, would place himself beyond the reach of accountability and, essentially, above the law. That was unacceptable to a generation committed to the rule of law.

Accordingly, the Framers took steps to curb that possibility. First, the president was made amenable to the law, like all other citizens. Second, a president who abused the pardon power, as Alexander Hamilton and other delegates explained, could be impeached. It is useful to recall that the Framers viewed the Impeachment Clause as a critical means for bringing an errant president to heel and preserving the Republic. Third, as Hamilton explained, delegates believed that the eyes of the nation would be upon the president when he exercised the pardon power, and that the fear of public scrutiny and scorn, as well as potential embarrassment, would restrain presidential actions.

Presidents have granted pardons for various reasons since the dawn of the Republic. The history of the pardon power, with some clear exceptions, reflects fairly careful judgments and judicious practice. Lincoln’s exercise of the pardoning authority, as seen in the cases of Moises Robinette and the roughly 200,000 confederates who received executive clemency as a means of restoring the Union, comported with the Framers’ expectations. We would do well, most Americans agree, if we had more presidents like Lincoln.

The Supreme Court at the Beginning: What to Wear?

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The photos and images of U.S. Supreme Court Justices portraying earnest men and women wrestling with momentous legal issues and controversies, the resolution of which will shape American society, politics and the constitutional landscape, fairly capture the serious side of those seated on the nation’s High Tribunal. But that’s not the Justices’ only side. There is another.

In the beginning, indeed, on the first day that the Supreme Court of the United States convened —February 2, 1790 — the most important issue confronting the Justices was what to wear to work. Seriously.

As such, the Justices faced the same question that many of us contemplate as we approach our first day on the job—appropriate workplace attire. The issue was a controversial one that went beyond members of the Court. Alexander Hamilton, whose daily dress promoted sartorial splendor, suggested the English wig and gown. Thomas Jefferson, who differed with Hamilton on so many issues, was at odds with him on the question of judicial attire. Jefferson, given to dressing as though every day were Saturday, opposed both. He said, however, that if the gown was to be worn, “For Heaven’s sake, discard the monstrous wig which makes the English judges look like rats peeping through benches of oakum!”

As if to test the thesis, Justice William Cushing arrived in New York wearing an outdated judicial wig. Observers noted that the wig created excitement. A group of boys followed the Justice down the street. Cushing was oblivious to the commotion until a sailor confronted him and exclaimed, “My eye! What a wig!” At that point, an embarrassed Justice retreated to his lodgings and discarded the wig. Cushing never wore a wig again, and neither did any of the other Justices.

The Supreme Court first convened in the Royal Exchange, on Broad Street in New York City. Although the Justices did not wear wigs, they were nattily dressed in black and red robes, attire that impressed spectators and suggested gravity, elegance and neatness. The public approved.

The Court’s beginnings were hardly auspicious, despite its distinguished membership. The occasion was formal, and newspapers followed it closely, reporting all the details of the first meeting of the third branch of government. The Court lacked the stature and prestige that it would accrue through the years. Hamilton’s description of the judiciary as “the least dangerous branch,” was reflected in the disinterest of some offered an appointment to the Court, in the lack of organization and adequate staffing.

Only four of the six men that had been appointed by President George Washington, and quickly confirmed by the U.S Senate, showed up for the first meeting. Robert H. Harrison declined appointment, likely because he considered his position as Chancellor of Maryland to be more important than a seat on the U.S. Supreme Court. John Rutledge, although a member of the Supreme Court for its first three terms, attended only one session and soon resigned to accept the position of Chief Justice of South Carolina.

Little attention was paid to the organizational and administrative details and needs of the Court, at its first meeting and throughout its first Term in 1790. The Court had nothing to do except admit attorneys to its bar, and it shortly adjourned. It began as a court without an official reporter, litigants, a docket, appeals or decisions to make. For its first two years, it heard no cases and made no substantive decisions until 1793.

John Jay, the first Chief Justice of the Supreme Court, shed light on the beleaguered state of the Court in its early years. At the request of President Washington, Jay took leave from the Court and spent considerable time in England, negotiating what became known as the Jay Treaty (1794). After resigning from the Court in 1795, he was invited by President John Adams in 1800 to return to the Court, once again as Chief Justice, as successor to Oliver Ellsworth. When Jay was offered the position, he declined it because of the arduous responsibilities of riding circuit, but he also cited the Court’s lack of “energy, weight and dignity,” which he said were necessary to support the national government. And, he added, the Court lacked “public confidence and respect.” He returned to New York to become Governor.

Jay’s decision to pass on President Adams’s offer was the Supreme Court’s gain. Adams proceeded to nominate John Marshall, who became, and remains, the nation’s greatest Chief Justice. Marshall converted the Court into a truly co-equal branch of government and laid the foundation for it to become the authoritative interpreter of the Constitution.

It is difficult for us today to realize that, at the beginning, a seat on the Court was little more than an opportunity to complete a distinguished legal career. Even that, however, was not enough to secure the service of some strong and experienced attorneys. But the humble beginnings of the Court are a thing of the past. “Since Marshall’s time,” Justice Felix Frankfurter once wrote, “only a madman would resign the chief justiceship to become governor,” or for that matter, a state judge.

Today, the Supreme Court Justices flex their considerable judicial muscles to resolve the weightiest, and most contentious, legal issues of our time.

Freedom of the Press: The Essential Foundation of Democracy

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When the U.S. Supreme Court, in Richmond Newspapers v. Virginia (1980), in the words of Justice John Paul Stevens, “squarely held that the acquisition of newsworthy matter is entitled to constitutional protection,” it was protecting under the First Amendment’s Free Press Clause the essential foundation of our democracy.

The conception of the press as a pillar of strength for a free people who mean to govern themselves is as old as the republic itself. In 1765, in his acclaimed treatise, “A Dissertation on the Canon and Feudal Law,” a youthful John Adams wrote: “Liberty cannot be preserved without a general knowledge among the people, who have a right . . . and a desire to know; but besides this, they have a right, an indisputable, unalienable, indefeasible, divine right to that most dreaded and envied kind of knowledge, I mean of the characters and conduct of their rulers.”

Adams’s insistence that the “preservation of liberty” rests on the “general knowledge of the people,” represented the earliest version of our historic understanding of Freedom of the Press as the public’s right to know. What is it that “we the people have a right to know?” Adams answered: “that most dreaded and envied kind of knowledge, I mean of the characters and conduct of their rulers.”

Adams anticipated James Madison’s eloquent defense of freedom of the press which, in combination with freedom of speech, provided the essential protection for a republican system of government. The press, he believed, must have “the right of freely examining public characters and measures.” It is only through close study and reporting on the means and measures of governmental policies, programs and actions, Madison explained, that the “sovereign people” can be sufficiently informed. Without information supplied by the press, the people, lacking knowledge, would be limited in their ability to scrutinize, critique and criticize governmental programs and actions. Without such knowledge, self-government would be but a pretense.

Critically, this historical understanding of the foundational role that freedom of the press plays in safeguarding the republic transcends political, partisan and ideological lines. Justice George Sutherland, surely one of the most conservative members of the Supreme Court, echoed the words of Adams and Madison. In a 1936 case, Justice Sutherland wrote, “The people are entitled to full information in respect of the doings or misdoings of their government; informed public opinion is the most potent of all restraints upon misgovernment.”

The informing function of the press, what may be described as the checking value of the “Fourth Estate,” is indispensable to the maintenance of the republic. It has played a critical role, for example, in exposing governmental deceit in wartime—Vietnam and Iraq— and governmental efforts to suppress the truth, as seen in the Pentagon Papers Case (1971) and the Watergate Tapes Case (1974).

It is precisely because “we the people” cannot attend the seat of government—state or national— to listen to debates on the great issues of our time or attend important trials that carry great significance for our democracy and the future of the nation, that we depend upon a free and independent press to provide accurate coverage of newsworthy events. We are reminded of Madison’s fervent belief that the press must be free to “canvass the merits and measures of public men.”

The press is an indispensable representative of the people, a fourth estate. It is for this reason, as Justice Potter Stewart noted in the Pentagon Papers Case, that the press plays a vital checking role in national security matters, particularly because expansive claims of presidential power face little challenge from a quiescent Congress and a deferential judiciary. So, he wrote, “the only effective restraint upon executive policy and power . . .may lie in an enlightened citizenry—in an informed and critical public opinion. For this reason, it is perhaps here that a press that is alert, aware and free most vitally serves the purpose of the First Amendment. For without an informed and free press there cannot be an enlightened people.”

Freedom of the Press, Justice Hugo Black rightly said, was created for the governed, not the government. If an enlightened citizenry is integral to democracy, as a long line of American statesman, from Adams and Madison to Stewart and Black, have so declared, then the press must be not only free and unfettered but dedicated, energetic and aggressive in informing the American people. Madison, who was prone to romantic musings about the press, nevertheless captured its historic importance when he wrote in 1799: “To the press alone, chequered as it is with abuses, the world is indebted for all the triumphs which have been gained by reason and humanity over error and oppression.”

Landmark Ruling Gives Press and Public Access to Criminal Trials

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The First Amendment’s Free Press Clause, which Thomas Jefferson declared indispensable to republicanism, has long been regarded as the “people’s right to know.” Without knowledge of governmental programs, policies and practices, the people would have little ability to hold government accountable. The press, as Jefferson and the founders recognized, could provide the crucial informing function that would make self-government possible.

Historically speaking, protection of the informing function is precisely why the Supreme Court has protected the right of the press to publish what it knows, without restraint or penalty. What had always been missing in American constitutional law, however, was the declaration of the constitutional right of the press to gather newsworthy information. The Court had never squarely addressed the question of whether the First Amendment grants the press a right of access to the news.

That changed abruptly when the Court, in 1980, in a landmark case, Richmond Newspapers v. Virginia, recognized for the first time, in circumstances that seemed to pit the Sixth Amendment against the First Amendment, that the press enjoys a constitutional right to access important information.

The Court’s decision in Richmond Newspapers, which Justice John Paul Stevens characterized as a “watershed case,” followed a bizarre path, amidst dramatic circumstances, that marked a quick and confusing change in the Court’s jurisprudence.

Our story begins with the Court’s ruling in the 1979 case of Gannett Co. v. DePasquale. There, the trial court, over press objections, closed the courtroom to the press and the public during a pretrial hearing on a defense motion to suppress evidence in a sensational murder case. The judge acted, he explained, to prevent prejudice to a future jury, and emphasized that both the defense and prosecution agreed to the closing.

Justice Potter Stewart wrote the Court’s 5-4 opinion, which focused on the Sixth Amendment’s guarantee to an accused of a “public trial.” Justice Stewart held that the Sixth Amendment right applied only to the accused. “Members of the public have no constitutional right under the Sixth and Fourteenth Amendments to attend criminal trials.” Justice Harry Blackmun wrote a dissenting opinion, joined by three others, in which he argued that a pretrial suppression hearing may provide the public with its only opportunity to assess police behavior. In Seneca County, N.Y, where the hearing was held, no criminal cases proceeded to trial that year. Among the Justices, only Lewis Powell, who concurred, mentioned the First Amendment. He said that if it applied at all, the interests of the press would have to be balanced against the interest in protecting the jury.

The Court’s ruling in Gannett was met with an outcry against secret judicial proceedings. Judges around the country chose to close criminal trials. Chief Justice Burger, in a rare moment of public comment, told reporters that those judges had misunderstood the ruling, that it applied to “pretrial proceedings only.”

The Supreme Court was likely embarrassed. A year and a day after the Gannett decision, the Court, in Richmond Newspapers, had before it a propitious opportunity to correct itself. In Richmond, another sensational murder trial, defense counsel moved to close the courtroom. The prosecutor agreed and the judge granted the motion. The newspapers objected and appealed to the Supreme Court.

The Supreme Court, having just recently decided Gannett, was loath to reopen the Sixth Amendment issue. If it wished to overturn the judge’s ruling to close the courtroom, its only ground appeared to be the First Amendment. The problem in relying on that Amendment, however, lay in the fact that while the Court had rendered rulings to protect the right of the press to publish what it knows, it had never held that that the Amendment granted the press access to news. History was about to be made.

In Richmond Newspapers, the Court, in a 7-1 opinion, held that the closing of the courtroom had violated the First Amendment. Chief Justice Burger wrote a plurality opinion which sought to avoid the conclusion that the press might access everything including, perhaps, the Supreme Court’s conferences. Burger emphasized the Anglo-American tradition of open trials and joined that with the First Amendment principle of “freedom of communication on matters relating to the functioning of government.” Free speech, he said, “carries with it some freedom to listen.” At bottom, the First Amendment prohibited the closing of “courtroom doors which had long been open to the public at the time that amendment was adopted.”

In a concurring opinion, Justice Stevens drew the broader jurisprudential lesson of the ruling. For the first time, he emphasized, “the Court unequivocally holds that an arbitrary interference with access to important information is an abridgment of the freedoms of speech and of the press protected by the First Amendment.”

In a case that was portrayed at the outset as pitting Sixth Amendment values against First Amendment values, there was joy in realizing that the guarantee of a “public trial” is, in fact, facilitated by press access to courtroom proceedings. As Justice Hugo Black wrote in the seminal case of Bridges v. California (1941), “free speech and fair trial are two of the most cherished policies of our civilization, and it would be a trying task to choose between them.” Fortunately, we don’t very often have to try.

Justice Jackson at Nuremberg: A Historic but Controversial Role

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Justice Robert H. Jackson’s departure for Europe in September of 1945 to serve as chief prosecutor for the United States at the historic Nuremberg trials of Nazi war criminals annoyed some of his fellow Justices and heightened the internal tensions that gripped the Supreme Court. Jackson’s acceptance of an appointment by President Harry Truman to lead the prosecution affected the workload and decision-making of the Court and renewed a lingering debate on the wisdom and propriety of tasking Justices with non-judicial responsibilities.

Chief Justice Harlan Fiske Stone was exasperated. Stone loathed extra-judicial assignments. He had declined President Truman’s recent invitation to lead a committee on traffic safety and believed Jackson’s participation at Nuremberg unworthy of a Supreme Court Justice because he viewed the trials as a “high-grade lynching party.”

The work of the Court was deeply affected by Jackson’s absence, which lasted for the entire 1945 Term. Important cases, unresolved by four-to-four votes, had to be carried over to the Court’s next Term. Justice Hugo Black, already at odds with Justice Jackson, was irate. His own workload increased as he wrote more majority opinions than his colleagues. Justice Horace Burton, appointed to the Court on October 1, 1945, complained in the spring of 1946 that there had not been a group picture of the Justices because “Justice Jackson has always been absent.”

For his part, Justice Jackson suggested remedies for the problems that his absence had caused. He offered to resign from the Supreme Court, but President Truman told him “No,” that Jackson should remain on the nation’s High Tribunal. At that point, Jackson told Chief Justice Stone that he would return to the Court to participate in some cases, but the Chief rejected the offer of a part-time Justice.

In his memoir, “The Supreme Court,” Chief Justice William Rehnquist, who clerked for Justice Jackson in 1952, recalled the controversy surrounding Jackson’s role at Nuremberg. Rehnquist observed that there was a feeling within the Court that “Jackson should not have left his duties at the Court for a full year unless he resigned the office; and also a sentiment that a sitting judge was not ideally cast in the role of a prosecutor.” For those reasons, Rehnquist concluded, he was, as Jackson’s clerk, “loathe” to raise the subject with the Justice. As it happened, however, an unconstrained graduate school friend of Rehnquist’s, upon meeting Justice Jackson, proceeded to ask about his experiences at Nuremberg. Jackson, according to Rehnquist, “proceeded with a very reasoned, often eloquent, defense of those prosecutions.”

President Harry Truman’s appointment of Justice Jackson in May of 1945 to serve as chief prosecutor for the United States at the Nuremberg trials represented a high point for both men in the historic effort, indeed, a defining moment in international justice, to apply the rule of law to those who rampaged throughout Europe and inflicted unprecedented misery and suffering on tens of millions of people.

Not everyone agreed that a trial of the Nazi monsters was warranted. England’s Prime Minister, Winston Churchill, for example, thought it sufficient to simply execute Nazi leaders and imprison others without trial. An alternative to that approach, one promoted by President Franklin D. Roosevelt at the Yalta Conference in February of 1945, was the novel application of the rule of law to hold Hitler and his Nazis accountable for their grotesque acts to show the world, and future leaders, that violation of International Law, including crimes against peace, crimes against humanity and aggressive war, among other heinous crimes, would come at a high price. The trials were meant as punishment, to be sure, but they also aimed to be a deterrent.

President Truman, long an admirer of Jackson, especially since his tenure as Attorney General, saw in the Justice, the only American ever to have held the posts of Solicitor General, Attorney General and Supreme Court Justice, a man of presidential timber. Truman believed that the demands of Nuremberg would shine a light on Jackson at his best—intelligent, articulate and decisive. Truman believed Jackson was the most qualified person to assemble the prosecutorial team, draft the historic indictment against the Nazis, lead the prosecution, cross-examine the Nazis and, above all, voice the hopes and goals of a shaken, but victorious civilized world, that a successful trial could deter the grave crimes that were committed in the name of racial purity and world domination.

Under Jackson’s leadership, the Allies convicted the leading Nazis who represented each dimension of the Third Reich. Beyond the convictions, Jackson’s team presented Nazi documents and other irrefutable evidence that, for the first time, publicly demonstrated the history of Hitler’s Germany and the Holocaust. Throughout his life, Jackson spoke and wrote frequently about his experiences at Nuremberg and considered it the most important work of his life.

Indeed, it was. In his capacity as chief prosecutor, Justice Jackson served the demands of history and truth.

“Blood Feud” Inside the Supreme Court on Question of Recusal

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Every now and again, the public displays an intense interest in the question of whether Supreme Court Justices ought to recuse themselves from a particular case because it appears that they have a conflict of interest that might prevent them from delivering an impartial ruling.

In 1816, Chief Justice John Marshall recused himself from participating in the landmark case, Martin v. Hunter’s Lessee, because he had a conflict of interest. The public was aware of his conflicts. He had appeared as counsel in an earlier phase of the case and had a financial interest in the property that was at issue. The decision, the Justices agreed, was Marshall’s alone, and he acted appropriately.

The Court’s historical understanding—and practice—of deferring the matter of recusal to individual Justices has stood the test of time. Only an individual Justice can decide, as a matter of conscience, after full appraisal of the relevant facts and factors, mindful of public perception on the crucial question of judicial impartiality, whether he or she should withdraw from the case.

But there was at least one moment in the Court’s history when a “blood feud” erupted between two Justices—Robert Jackson and Hugo Black—on the question of whether Black should recuse himself because of a potential conflict of interest. The acerbic argument spilled over to the rest of the Court, igniting among the strong and talented Justices partisan factions that, in the words of former Chief Justice William Rehnquist, left “a mark on future relationships.” The feud became the subject of newspaper commentary and Washington gossip.

In 1944 and 1945, two cases came before the Court involving the Fair Labor Standards Act on contracts between mine workers and their employers. The workers were represented in each case by Crompton Harris who, for a brief time, some 20 years before, had been Black’s law partner. The mine workers were successful in both cases, enjoying decisions that exceeded the collective bargaining agreements in the context of overtime benefits. Black voted with the majority. Jackson dissented on grounds that the decisions were overly broad and politically inspired.

The Jewel Ridge Corporation, the defeated party in the second case on a 5-4 vote, asserted its right under the Court’s rules, to petition the Justices for a rehearing, and claimed that Justice Black should have disqualified himself based on his connection to Harris. The Court rarely grants these petitions, and their denial is a matter of form. Chief Justice Harlan Fiske Stone might simply have drafted the usual order of denial but instead decided to draft a short opinion stating that the question of a Justice’s recusal is never open for consideration by the entire Court.

None of the Justices wanted to grant the petition for a rehearing. Stone’s draft, however, set the stage for the Justices’ robust discussion in conference about recusal, against a backdrop of antagonisms that were revealed a year later—May 15, 1946—by a Washington newspaper columnist, Doris Fleeson, whose sources were inside the Court. Ms. Fleeson had referred to the rising tensions between Black and Jackson as a “blood feud,” principally because Black had viewed Jackson’s suggestion that he disqualify himself in the Jewel Ridge case as “an open and gratuitous insult, a slur upon his personal and judicial honor.”

Justice Jackson, serving as Chief Prosecutor at the Nuremberg Trials, received word of Fleeson’s column and immediately perceived that her sources were members of the Court eager to discredit his candidacy to succeed Stone as Chief Justice, a post that he coveted and felt entitled to based on promises from President Roosevelt. Roosevelt was deceased and President Harry Truman was under no moral obligation to honor any promises made by his predecessor.

Jackson prepared a public statement describing in detail his role in the Jewell Ridge recusal controversy. On June 10, 1946, four days after Truman appointed Fred Vinson to become Chief Justice, Jackson described Fleeson’s account as detrimental to the Court’s reputation for “nonpartisan and unbiased” decisions, declared insinuations of personal vendettas among the Justices were “utterly false” and insisted that his differences with Black involved questions not of “honor” but of “judgment as to sound judicial policy” in matters of disqualification.

Jackson explained that the discussion in conference surrounded the question of whether the Court should summarily dismiss the petition for a rehearing or cite its lack of power, as an institution, to pass on disqualification issues. Jackson acknowledged that he had in conference argued that the Court should discuss the recusal question, which triggered an angry response from Black, who stated that any such opinion “would amount to a declaration of war.” For their part, Jackson and Felix Frankfurter said they were unwilling to give “blind and unqualified approval” to Black’s participation in Jewell Ridge.

While the Court issued a formal rejection of the petition for rehearing, the conference discussion reveals that in any future discussion about recusal, some Justices may feel free to weigh in as a matter of protecting the integrity of the judiciary while others may retreat from declaring their views as a means of avoiding the storm that engulfed the Court in the Jewell Ridge controversy.

The guiding question should be: what best serves the Court’s reputation?

Justice Robert H. Jackson: Groomed for the Supreme Court

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Few nominees to the U.S. Supreme Court have been as well prepared, let us say, groomed, for a seat on the nation’s High Tribunal than Robert H. Jackson, who was appointed in 1941 by President Franklin D. Roosevelt.

Jackson’s remarkable career in his run up to joining the Court—brilliant New York attorney, intimate adviser to the nation’s most powerful leaders, history making stints as Solicitor General and Attorney General, legal architect of an international deal at the outset of World War II that proved critical in saving England—richly deserved the fulsome praise he received from American legends. Justice Louis Brandeis, remarking on Solicitor General Jackson’s dazzling performance before the Court, said he “should be Solicitor General for life.”

Jackson’s meteoric rise in the legal world began in Frewsburg, New York, where he graduated from high school in 1909. He apprenticed to two local lawyers and in 1911, he enrolled as a senior in the Albany Law School, which gave him credit for his experience in the law firms. He completed all the requirements for his degree, but the school could not confer it because he had not reached the age of 21. Known throughout his career for beautiful writing skills, observers attribute his literary flair to the fact that he spent just one, rather than three, years in law school.

Jackson was a dominating force in the courtroom and the western New York bar. One opponent called him “wickedly brilliant.” His clientele was diverse: a streetcar company, banks, striking labor union members, and occasional defendants accused of murder. His practice reflected his philosophical commitment to individualism and his temperament. He had embraced Emerson’s emphasis on self-reliance and self-help, which he believed the basis of character and success. He did not want to be compromised. Accordingly, none of his clients contributed more than five percent of his income. He sought financial independence which, he believed, was an essential asset for public service because it would relieve him from the fear and pressure of losing an office.

The year 1911, the same year that he enrolled in law school, was a turning point in Jackson’s life. An active Democrat, he took a trip to Albany, New York, and while there met Franklin D. Roosevelt, then a freshman state senator in the legislature. They developed a close friendship that deepened over the years. Roosevelt brought Jackson into the New Deal and provided him with a range of governmental opportunities and experiences, including important roles in what was then the Treasury Department’s Bureau of Revenue (now the IRS) and the tax division of the Justice Department. FDR recognized Jackson’s broad talents and soon he was tasked with speaking against the Supreme Court, corporations, and other opponents of the New Deal.

Jackson testified before the Senate on FDR’s difficulties with the Supreme Court, which had held a dozen New Deal programs unconstitutional and seemed to bear a personal animus toward Roosevelt shortly before FDR announced the Court-packing plan. Jackson became a well-known public figure and was viewed as an FDR favorite. Jackson joined the president’s poker games and cruises to the Bahamas and fit neatly into insider discussions about Washington and national politics. Jackson’s relationship with Roosevelt might well have been the only one in which he practiced deference.

Indeed, Roosevelt was grooming Jackson as his successor in the White House in 1940. The first step was to become New York’s Governor in 1938, but the powerful politicians who controlled Albany balked at a Jackson candidacy. As an alternative, FDR appointed Jackson to the post of Solicitor General, where he earned high praise from the Justices.

In 1940, Roosevelt appointed Jackson to be Attorney General. In this position, Jackson spent much of his time working on war-related issues. Jackson provided critical legal and political advice to FDR, who was searching for a way to meet Winston’s Churchill’s urgent pleas for help in the face of Germany’s relentless attacks on England’s navy. Churchill needed ships. Jackson located an old statute that could be utilized to forge a “Destroyers for Bases Agreement,” one authorizing FDR to trade 50 aging destroyers in exchange for 99-year leases on eight British bases in the Western Hemisphere. The trade was hailed as a win-win. FDR was praised for strengthening the continental defenses while keeping the United States out of the war which, at the time, was a demand of the non-interventionist Congress.

Jackson’s stock was steadily rising, and he was well-positioned to run for the presidency. But Jackson, concerned about the immediate future of America and the likelihood that the nation would be drawn into war, thought it better for FDR to seek an unprecedented third term, which he won in an electoral landslide.

In 1941, Roosevelt nominated Jackson to the Supreme Court. He easily won confirmation in the Senate. Jackson’s career on the Court, until his death in 1954, was marked by landmark opinions, interruption to serve as Chief Prosecutor at the Nuremberg Trials, as well as confrontations with Justice Hugo Black, which led to the most famous feud between two Justices in the history of the Court. Interestingly, it began with an argument about when Justices should disqualify themselves from hearing a case. We turn next week to those matters.