The Supreme Court, part 1

From 1990 until 1992 and from 2001-03, he was the Sullivan & Cromwell Research Professor; from 1994-97 the E. James Kelly Research Professor; and from 1999-2001 the Class of 1963 Research Professor. He has held visiting appointments at New York Law School, William & Mary School of Law, Brooklyn Law School, Arizona College of Law, the London School of Economics and Political Science, and Harvard Law School. He has been a Guggenheim Fellow, and twice a senior fellow of the National Endowment for the Humanities. He is a fellow of the American Academy of Arts & Sciences, a fellow of the Society of American Historians, and a member of the American Law Institute. He received the Roger and Madeleine Traynor Faculty Achievement Award in 2008.

White’s 14 published books have won numerous honors and awards. These include final listing for the Pulitzer Prize in history, the Silver Gavel Award from the American Bar Association, the James Willard Hurst Prize from the Law & Society Association, the Littleton-Griswold Prize from the American Historical Association, the Scribes Award and the Association of American Law Schools’ Triennial Coif Award. White’s books have garnered 15 such honors and awards since 1976.

White was editor of the Studies in Legal History series for the North Carolina Press from 1980-85, and advisor on law manuscripts for Oxford University Press from 1986-96. He was on the editorial board of the Virginia Quarterly Review from 1980-2002. He has served on the Commission for Undergraduate Education in Law and the Humanities, and has taught summer humanities seminars for lawyers and judges under the auspices of the National Endowment for the Humanities.

White has delivered several endowed lectures, including the inaugural John Marshall Lecture, sponsored by the Boston Bar Association; the inaugural Jerome Hall Lecture at Hastings College of Law; the Swinford Lecture, sponsored by the University of Kentucky School of Law and the Kentucky Bar Association; the Keck Lecture at Amherst College, the Rosenthal Lectures at Northwestern University School of Law; the Neesima Lectures at Doshisha University, Japan; the Fulton Lecture at the University of Chicago School of Law and the Knowlton Distinguished Lecture at the University of South Carolina School of Law. His most recent lecture was the 2010 Hendricks Law and History Lecture at Washington & Lee Law School.

White’s 1996 book, Creating the National Pastime: Baseball Transforms Itself, 1903-1953, reflects his life-long participation and interest in athletics. He lettered in four sports in college, formerly coached the Charlottesville High School girls soccer team, and has won a number of state- and citywide tournaments in doubles squash.

He was twice a senior fellow at the National Endowment for the Humanities, a Guggenheim Fellow, a fellow at the Society of American Historians and a member of the American Law Institute. Professor White is the author of 14 books and numerous articles on law and legal history. He has won an impressive number of awards and honors including a final listing for the Pulitzer Prize in History. His many books include History and the Constitution, Collected Essays, The Constitution and the New Deal and The Marshall Court and Cultural Change, 1815 to 1835. Welcome, Professor White.

Edward White: Thank you.

Jan Paynter: Whether reading or watching national news these recent days and most especially after this 2010 interim election for governor, House and Senate, one thing catches our attention, the ongoing national conversation among both the American people and their Representatives concerning the pros and cons of state versus federal government. How large a footprint should our national government have? When is an overarching protection necessary to assure our rights and privileges? And when might that protection constitute an encroachment on civil liberty? Most of us have an opinion to offer the debate and as it turned out, our founders most particularly did. Our previous two part program with Dr. White’s colleague Professor Frederick Schauer focused our attention on constitutional amendments, what they are and the ways in which they affect our lives as Americans. Today, under Professor White’s learned and able guidance we should like to explore with you an overview of the history of the court, the Supreme Court, taking particular notice of a seminal and transformative moment in its development, the Marshall Court. So, since so much of our national conversation is reflecting concern with our constitutional and judicial roots and as we all know we’ve added two new members to the Court, let’s have a look in the review mirror which is the early days of our republic. Welcome again, Professor White.

Edward White: Thank you.

Jan Paynter: Let’s begin with the first mention of the Supreme Court, Article III of the Constitution, what Alexander Hamilton would call ‘the least dangerous branch of the federal government’. For some, a debatable point to be sure. Start if you would, Professor, by describing the range and responsibilities of the Supreme Court as enumerated by Article III.

Edward White: Well, the Article really doesn’t say very much at all about either of those questions. It simply says there will be a Supreme Court. Indeed it provides that the lower federal courts will be established at the discretion of Congress so conceivably Congress could have not established any courts other—any federal courts other than the Supreme Court. Of course they did but the expectations for the court at the time of the framing I think are very uncertain and perhaps modest. In the first 10 years of the courts existence, it was a comparatively insignificant institution. It decided quite a small number of cases, it did not have a permanent home. It started off in New York, eventually did not have anything like the current chambers in Washington. The number—the Justices were primarily occupied with circuit riding in their respective regions. The time that the Court actually met in Washington when it became established under Marshall was four to six weeks in the year. So I think it was really up to the Court to propel itself into the national picture. The framers were not at all clear about what role it would play.

Jan Paynter: So the Justices and the Court discussed and established their own ground rules and really set the landscape for themselves?

Edward White: Well, of course, the Judiciary Act of 1789 provides the basis for the courts–the Constitution and the Judiciary Act provide the basis for the Court’s jurisdiction. By that I mean the way cases would be heard by the Court, the sorts of cases that would come to the Court. And during Marshall’s period there are principally two ways in which cases come to the Court. One is from the high courts of the states and the other is through—from the lower federal courts and both of those routes are provided in the Judiciary Act but there’s considerable leeway granted to the Court to develop and that’s one thing the Court does is it uses its ability to hear cases that are certified from the lower federal courts to entertain some important cases.

Jan Paynter: How many justices were originally on the Court and how did they arrive at that number? Who determined that?

Edward White: It—the—of course that’s provided initially and subsequently by statute, Congress provides the number of justices. They started out with a chief justice and five associates so there’s a six person court. A seventh justice is added in the Marshall Court period. The—that number remains seven basically up to the period before the Civil War.

Jan Paynter: Who was the first Supreme Court justice?

Edward White: Well, the—who was the first. The first chief justice…

Jan Paynter: Chief justice, hmm mm.

Edward White: …was John Jay. Now one of the things that’s interesting about the very early Court is there seems to have been an expectation that seniority would play an important role in the court and the way seniority was worked out was that the chief justice was the most senior, even if the chief justice had been subs—and there were three chief justices before Marshall—even if that chief justice was appointed later than some of the associate justices, the chief justice would be the most senior. The next most senior justice was done by appointment so the dates of the appointments of the early justices vary and their seniorities is pitched on the time they were appointed. Now interestingly enough, seniority is not just reflected in the designation of the various justices but in the opinion writing process. So in the very early Court, the Court delivers opinions in the form of unsigned small paragraphs deciding the case and then the justices render separate opinions beginning with the most junior justice and ending up with the opinion of the chief justice.

Jan Paynter: Okay.

Edward White: So seniority is controlling this process.

Jan Paynter: What types of cases did the Court take at the beginning, what areas were they concerned with?

Edward White: There are largely non-constitutional cases. There’s really only one major constitutional case in the 18th century, that’s Chisholm v. Georgia, a case involving the constitutionality of a provision of—well, it’s a problem that’s solved by the 11th Amendment. It has to do with the capacity of states to sue and be sued in the federal courts. Other than Chisholm v. Georgia, the cases are common law cases, admiralty cases and not particularly significant cases and most of the cases come to the Court from the lower federal courts, not from the states.

Jan Paynter: Okay. Let’s move and talk about our central focus today which is the Marbury Madison decision and first telling us a little bit about how did Adams come to appoint John Marshall, our fourth Chief Justice?

Edward White: After the 1800 election when it’s apparent that the Jefferson Republicans are going to win, Adams anticipates that the Jefferson—the Jeffersonians will change the composition of the federal courts because Jefferson has already developed a certain amount of hostility to the judiciary and so anticipating this, Adams decides to make a number of very late appointments to federal courts to, if you will, pack the courts with federalist sympathizers. This includes the Supreme Court. The then Chief Justice Oliver Ellsworth is in poor health and there’s a need for a successor and Adams is determined to make a nomination before he leaves term. Marshall, John Marshall is then Adams’s Secretary of State and Marshall is involved with the nomination process. He and Adams are having conversations. So Adams says, ‘What about—what about this…’ or Marshall would say, ‘What about this person?’ Adams says, ‘No, no, I don’t want him’. And ‘what about that person?’ ‘I don’t want him’. Marshall proposes about three candidates, Adams rejects all of them. There’s then a sort of pause and Adams says to Marshall, ‘I believe I will nominate you’. And Marshall doesn’t object. So—this is a very late appointment. This is right before Adams literally is succeeded by Jefferson. Marbury v. Madison is part of that story in an indirect way because what happens is when the Jefferson—Jeffersonians come into power there are—many of the judges in the federal courts are federalists and one of them is Samuel Chase. There is a practice by which judges when they sit on circuit—Supreme Court justices sitting on circuit—sometimes have grand jury proceedings and deliver charges to the grand jury in criminal cases. Chase delivers a couple of charges to grand juries that in the view of the Jeffersonians suggests that he’s deeply political and prejudiced.

Jan Paynter: He ends up impeached, does he not?

Edward White: Right. He ends up being impeached and it is feared that the next step will be an effort to impeach Marshall himself or some other justice on the Supreme Court. Now at the same time that Adams makes these appointments to the Court, he makes appointments throughout the federal system and one of the sets of appointments he makes is to basically low level judges, justices of the peace in the District of Columbia and one of the persons that he appoints is a person named William Marbury. And in a kind of comical episode, Adams is signing all these commissions of judges, there’s a lot of commissions that Adams is sort of racing through, trying to get them all signed. The understanding is if the commission is signed, it—the person is entitled to—the new judge designate is entitled to the job, to the office. But then the commission has to be delivered to that judge. The responsibility of delivering the commission falls on the Secretary of State’s office, in short, on John Marshall and he doesn’t get around to delivering a number of these commissions before the Jeffersonians take office. One of the commissions that he doesn’t deliver is that of William Marbury. So Marbury v. Madison begins with that episode. The Jeffersonians come into power, Madison replaces Marshall as Secretary—James Madison replaces Marshall as Secretary of State. He has these undelivered commissions in his office and the Jeffersonians decided they’re just not going to deliver the commissions because they don’t want these appointments to take office. So they don’t and Marbury sues for his commission. He basically argues, ‘I’m entitled to the judgeship, the justice of the peace position, and these people are holding out on me, they’re not delivering the commission and I—‘. So he—he—he brings writ, the writ is called a writ of mandamus and the writ is to compel an officer, in this case Madison, to deliver the commission. And so the question is raised as to whether he can force the delivery of the commission or whether the decision to deliver or not deliver the commission, in other words the decision to appoint or not appoint a justice, is discretionary with the executive branch.

Jan Paynter: So this decision ends up cementing the power of judicial review? Is that the–

Edward White: Well, it does but in an artful manner. The case comes up to the Supreme Court and there really are three issues. The first issue is whether when Adams signed the commission did that vest a right in all the people who were the holders of the officers to that office. The second is whether the executive branch can change that because they have discretion. And the third is whether the Supreme Court is actually entitled to hear the case. And it’s the last part that Marshall cleverly converts into the principle of judicial review.

Jan Paynter: So in terms of judicial history, Professor, how does this decision and the decisions of the Marshall Court affect the focus of subsequent Supreme Courts? How does that change the manner in which the law is worked on?

Edward White: Well, it’s an absolutely—it’s an absolutely vital decision although it’s not fully understood as that at the time. It appears that to the extent there was a theory of constitutional interpretation by the various branches of government that inform the framers of the Constitution, it was that, yes, the Constitution needed to be interpreted but it wasn’t clear that the judiciary was the sole or even the dominate interpreter. The theory seems to have been something like all branches of government are equally entitled to interpret the Constitution and the question is whether this is an area within the province of those branches or not. And so the argument of the Jefferson administration in Marbury is, the decision to appoint an officer is in the discretion of the executive branch and so their control—their interpretation ought to control. What Marbury—what Marshall does in Marbury is say, ‘No. The—if this is a case in controversy as the Constitution prescribes in Article III, kitchen, then the judiciary has the power to interpret the meaning of the constitution within that and so even though he ends up saying eventually that the Supreme Court can’t hear this case, he claims the power to interpret the Constitution, to decide whether it can hear this.

Jan Paynter: I wish we had time today, because our time is short, to look at the different courts and how it developed but this case is so central I think it’s worth focusing there. How does a court, Professor, guard against ideology being in a factor of decision making? In the last chapter of your book The Marshall Court on Cultural Change you discuss this sort of dance, the nuances of change versus permanence and maintaining revolutionary principles and therefore flexibility and at the same time keeping stability.

Edward White: Well, there are really two issues raised by what you said. The first is the question of to what extent ideology plays a role in judicial decision making. The second is whether in interpreting the Constitution judges should emphasize stability or change or both. First of all, unquestionably judges are human beings and judges have ideological presuppositions and those are to some extent bound to affect the decisions they make. But the role of judge emphasizes constraints on the ability of judges to impose their political or social views on the Constitution. So even where judges begin the exercise of interpreting the Constitution with ideological presuppositions, their constrained from saying openly, ‘I am advancing this interpretation of the Constitution because it accords with my ideology’. They have to look at other sorts of sources. Now with respect to stability and change, the Constitution as Marshall put it in a case was designed to be a document that endured over time. The idea is that the provisions are sketching out broad principles but the principles are going to be interpreted in new cases as they arise. So the question is always when you get a new controversy involving issues that the framers may not have anticipated and you have a constitutional provision, what should be the controlling guideline. Should we look back to the original intent and understanding of the provision of the framers in which case we run the risk of having constitutional interpretations frozen in time.

Jan Paynter: Well, I know from looking at your book that one of the things that Marshall believed in was judicial discretion but his idea of discretion was, as you say, guided by founding principles, it was not simply a strong political will on his part.

Edward White: He calls it at one point—he talks about judicial discretion—he says it’s a ‘mere legal discretion’.

Jan Paynter: Yes.

Edward White: And what he means by that is that there’s an obligation on the part of the judiciary to follow controlling legal principles and by discretion what he means is, judges have a range of interpretation of existing principles. They can help explain what they mean as applied to continuing cases. But other than that, they don’t have discretion to substitute, as he puts it, ‘their will for that of the law’.

Jan Paynter: Now how do you—president’s appoint justices and president’s have party loyalty’s points of views so how do you guard—for instance the last few courts in our history, the Berger Court, the Rehnquist Court, now the Roberts Court, are perceived as having particular ideological—they’re ideologically driven so—and they at time appear to be so would you say that the present court for instance, let’s just take the Roberts Court, would you say that that court strives for discretion within the range that Marshall outlined which is that is to adhere to the original constitutional principles, to keep political opinion out of it, or would you say over time the courts—and particularly looking at our court now—has drifted in one direction or the other?

Edward White: Well, as to the question of how much stability or how much change counts, individual justices on the Roberts Court differ on that.

Jan Paynter: Right.

Edward White: And Justice Breyer is an advocate of what’s called living constitution theory which is the idea that the Constitution needlessly has to change over time because you get new social and political contexts in which you make interpretations. Justice Thomas is of a different view. He’s an originalist, that is, he thinks that you sh—that what should be controlling is the interpretations of the framers. But I would not say that the Roberts Court or the Warren Court are compelled by ideology in the way we would think of let’s say political candidates as being. I think an important thing to emphasize is that all justices of the Supreme Court have to deal with precedent, have to deal with the text of the Constitution and they can’t—it’s just not open season for them to impose their ideologies.

Jan Paynter: Jefferson stated, on the eve of Marbury v. Madison, that ‘we are all Republicans, we are all Federalists’. In their book The Great Decision, authors Sloane and McKeen note that ‘in addition to their connections with one another to the cases, most of the key players, Marshall, Marbury, Madison and Jefferson—Marshall was a distant cousin of Jefferson—ended up posthumously related to one another through marriage over time proving Jefferson’s assertion correct on a metaphorical level “we are all Republicans, we are all Federals”.’ They note the unifying fabric for all Americans governed by law, our Constitution and our judiciary, even as we disagree with one another, something that is good to keep in mind after results of any election because we are all passionate in our points of view. Thus, when we look in the rearview mirror of the early days of our Republic, objects in the mirror are indeed closer than they may appear. Thank you again, Professor White, for guiding our discussion today. Thank you at home for listening to our conversation. We will be posting some Supreme Court history book selections on our website as well as a number of other selected readings related to our past and future programs so, take a look. We would like to hear from you with any and all questions, concerns and program ideas for Politics Matters. You can email us at info@politicsmatters.org. We air Tuesday and Saturday at 8:00 as well as selected additional times during the weekdays. Thank you. Thank you again, Professor, and until our next meeting, I’m Jan Paynter and this is Politics Matters.