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Congress decided first to fix
The number of justices at six
Congress planned on a change to five
But the six remained very much alive
Six high judges supreme as heaven
Then Jefferson added a number seven
Seven high judges all in a line
Two more added and that made nine
Nine high judges were sitting
When Latham made them an even ten
Ten high judges, very sedate
When Congress got through
There were only eight
Eight high judges looked resigned
President Grant brought the number back to nine
Would a justice feel like a packed sardine
If that number was raised to say, fifteen?
Thus spoke Sandra Day O’Connor, the first woman ever to serve on the Supreme Court of the United States, during her inaugural visit to Hyde Park, about the continually metamorphosing nature of the high court, whose number “is engraved neither in stone nor in the Constitution.”
O’Connor was in town not just to amuse the assembled with her ability to recite verse, but to deliver the keynote address at the second annual conference sponsored by the 12 national presidential libraries, their respective foundations and the National Archives, on Sunday, Nov. 12 and Monday, Nov. 13.
The nattily attired crew of eggheads — mostly archivists, historians and presidential librarians with a few stray senators, journalists and ambassadors thrown in for good measure — nearly filled a room at the FDR Presidential Library for the opening session of “The Presidency and the Supreme Court,” the theme of the conference.
Attendees not already intimate with the history of the Supreme Court and the tireless machinations between the executive and legislative branches of government were soon apprised of the historic and epic battles between the two branches. In fact, said several panelists, it was fitting that the conference was taking place at Hyde Park, the site of the first presidential library begun by Franklin Delano Roosevelt, who had achieved historical notoriety in 1937 with his court-packing scheme, a topic addressed during the first panel, “Presidents Hoover and Roosevelt and the 1930s Supreme Court.”
For those unfamiliar with FDR’s proposal to reorganize the judiciary, here – in the tiniest of an acorn shell – is a synopsis of what took place. In his first term FDR sought with his New Deal to breathe new life into a country in economic free-fall due to the Great Depression. The Supreme Court, dominated by Republican-appointed justices, began shooting down his attempts by ruling his New Deal laws unconstitutional. After nixing both the Railroad Retirement Act of 1934 and the National Industrial Recovery Act of 1933, they decided to fully brine the president by ruling the Agricultural Adjustment Act of 1933 unconstitutional.
While he had to take it sitting down, the president certainly wasn’t passive. Giddy with victory in his second term, FDR threw down the gauntlet and decided take on the “Nine Old Men.”
“What is my proposal?” the president asked rhetorically during his March 9, 1937 Fireside Chat. “It is simply this: whenever a judge or justice of any federal court has reached the age of 70 and does not avail himself of the opportunity to retire on a pension, a new member shall be appointed by the president then in office, with the approval, as required by the Constitution, of the Senate of the United States.”
At the time, six of the nine Supreme Court Justices were age 70 or older, and FDR undiplomatically suggested that: “This plan will save our national Constitution from hardening of the judicial arteries.” Perhaps. Those more uncharitably disposed also believed it to be a fairly naked power grab.
Was that so wrong? Apparently the Senate thought so, and essentially slapped FDR down. But the older justices did eventually retire and the youngest, Owen J. Roberts, who formerly played the role of thorn in the lion’s paw, switched allegiances — an act now referred to by pithy historians as “the switch in time that saved nine.” The court that repeatedly voted against him 5 to 4 began approving his legislation by the same slim margin. But the real victory, argue historians, is that FDR’s play for power had served as instructive for future presidents, none of whom have since attempted such a forthright grab at controlling the judiciary.
Bill and Ed’s excellent … altercation?
While scholars may agree on the events of 1937, two panelists got into a hot and heavy discussion of what it all meant during the opening session.
What FDR managed to do, said panelist William E. Leuchtenberg, the William Rand Kenan Jr. professor of history emeritus at University of North Carolina at Chapel Hill, was stage no less than a constitutional revolution. The concern now, he said, is to see how far the present-day Supreme Court will go in rolling back that constitutional revolution of 1937 and invalidate acts of Congress.
His colleague, G. Edward White, the David and Mary Harrison Distinguished Professor of Law and a professor at University of Virginia, argued that while many believe the Supreme Court justices to be human actors, capable of partisanship and responding to political pressure without the sort of accountability that politicians have, nothing could be further from the truth. White maintains that justices spend time deliberating, discussing cases in a collegial fashion and making decisions based on precedence and what message they wish to send to future courts. He dismissed those who believe justices could be politically motivated as “attitudinalists,” a term with which Leuchtenberg took great umbrage, leading to a heated – or hopefully as impassioned as academics can get in public – exchange. Leuchtenberg admitted that he’s been called a “born-again New Dealer,” but was unwilling to accept the title of “attitudinalist.”
Jonathan Alter, a senior editor at Newsweek, and Alan Brinkley, provost at Columbia University, also took part in the panel, and some minor pyrotechnics took place as well between Alter and White. While none of the panelists thought the court-packing bill was a good idea, the Bush vs. Gore ruling managed to get the two riled up.
White argued that Bush vs. Gore was “the poster child for attitudinalism.” The decision, he said, was one in a long tradition of other branches of government finding themselves in intractable positions and delegating the final decision to the court. Alter, who had been in Tallahassee in 2000 covering the recount, was disheartened by the Supreme Court’s ruling, and thought it strange that it didn’t allow the count to continue. Although Alter said he didn’t think the outcome would have gone differently even with the recount, he thought the court’s decision — made on a weekend — was an unnecessary and politically motivated intervention by the high court.
While clearly entertained and kept rapt by the nearly two-hour presentation on the 1937 court-packing plan, even geeks began to get restless and opt for a break, and there was a populist uprising of sorts as the perfectly-coiffed and somewhat stiff-jointed audience made their way to the corridor – despite the lack of a designated break on the official agenda – to scarf down sugary Halloween-size candy bars and gulp plastic cups of water to fortify themselves for the next round: “Shaping the Modern Court: Presidents Truman through Clinton.”
Hot mano a mano action … almost
Those still able to sit upright and focus on the panelists: Allen Weinstein, archivist of the United States; the feisty Ambassador C. Boyden Gray (who clerked for Justice Earl Warren, is the current U.S. representative to the European Union and formerly served as White House counsel to George H.W. Bush); professors Douglas Brinkley and Laura Kalman; and self-confessed college drop-out Nina Totenberg, who is more regularly known as the legal affairs correspondent for National Public Radio, were in for a treat.
After brief presentations by each of the panelists, giving us whirlwind tours through the history of the court and focusing on its changing nature, due in large part to the modern development of contentious confirmation hearings and political pressures (Kalman cited Justice Abe Fortas as being the beginning of the modern court; others thought the hearings surrounding Robert Bork’s nomination heralded the change — as well as introducing an obscene sounding verb — to be “borked” — into our lexicon), discussion focused on how candidates these days make it onto the court, given the rigorous federal vetting process and public hearings.
Totenberg pointed out that if a president doesn’t want to endure a painful nomination battle, it can be avoided, citing President William Clinton’s experience. He didn’t have any problem getting Ruth Bader Ginsberg or Stephen Breyer approved; he vetted both candidates through Republican Senator Orrin Hatch before nominating them.
And then it was 4:45 p.m., the sun was nearly down and it was time for another 10-minute break before the big show: the keynote address by retired Justice Sandra Day O’Connor, who professed that she didn’t have any idea what a keynote speech was and would simply talk about various points in history where the presidency and high court intersected.
Justice with a heart and a sense of humor
Undeterred by her humble preamble, O’Connor began by speaking extemporaneously of her childhood on a cattle ranch. She reflected on the irony of speaking at Hyde Park (given that the Southwestern cattle rancher stock that she came from were not given to thinking favorably of the Roosevelts), and remembered meeting Eleanor Roosevelt at a girls’ school she attended in El Paso.
“I remember to this day, waiting for Eleanor Roosevelt and that I did not dare tell my parents,” mused the justice. “Within 10 minutes she had charmed all these ignorant little girls, including this one. I will never forget that day. I’ve met very few people – Nelson Mandela, Eleanor Roosevelt – who immediately on meeting them, you know, they’re special.”
She then launched into her prepared speech, giving historical perspective to the struggle between the executive and legislative branches of the U.S. government, something she said “we’re seeing in our country right now to an extraordinary degree … It’s a remarkable time to be considering the issue of separation of powers and what it means in a time of stress or war.”
That brief reference to the current political climate was O’Connor’s only detour to the present. She chose, instead, to focus on the past.
An anecdote about William Howard Taft, a rare historical figure who had the distinction of serving both as president (the 27th) as well as chief justice (the 10th), set the mood for the speech, warming up the crowd that nearly doubled over in laughter at its telling. The story, as O’Connor told it, is that the rotund Taft, who tipped the scales upward of 300 pounds, was stranded at a small country railroad station. Told that the express train would stop only for a large group of passengers, Taft wired the conductor on the coming train: “Stop at Hicksville. Large party waiting to catch train.” When the conductor on the train looked confused at Taft standing alone, she said, he responded, “You can go ahead now. I am the large party.”
She then began a rancorous tour of history, first dropping in on the troubled cousins John Marshall and Thomas Jefferson, whose relationship “planted the seeds of an all-out war between the judiciary and the other branches of government,” said O’Connor.
Jefferson used his presidency to try to have Chief Justice Marshall impeached. “Marshall, in turn, labeled Jefferson totally unfit for the presidency,” recounted O’Connor. The result of their contentious relationship was Marshall’s 1803 Marbury vs. Madison decision, which permanently strengthened the Supreme Court by establishing the importance of judicial review. Although on the face of the decision Marshall upheld Jefferson’s right to choose his own appointees to the courts, “the victory that he handed to Jefferson came with a silver lining to himself — the order was denied on the grounds that the part of the judiciary that had given the Supreme Court the power to give such commissions was contrary to the Constitution,” said O’Connor. “Writing for a unanimous court, Marshall declared that the courts, as well as other departments, are bound by the Constitution. More importantly, it is the duty of the judiciary to say what the constitution means.”
O’Connor then discussed President Abraham Lincoln and Chief Justice Roger Taney, and how they wrangled over a profoundly unsettling wartime exercise of presidential power. “To my knowledge,” she said darkly, “it represents one of only two times when a sitting president has defied a direct Supreme Court order.”
Set against the backdrop of the Civil War, Lincoln decided to suspend habeas corpus in 1861 after southern sympathizers in Baltimore attacked a train of Union soldiers and later burned bridges and cut telegraph lines between Baltimore and Washington, D.C. “Congress was out of session, and President Lincoln found himself in Washington with a rebel army to the south, and a secession-minded mob to the north,” said O’Connor. “Invoking his powers as commander in chief, he authorized local military leaders to suspend the writ of habeas corpus along the railroad line, from Washington, D.C., to Philadelphia, essentially what this meant was that the army could arrest civilians without getting a warrant for it, or without probable cause to believe a crime had been committed by the person arrested, and without providing a jury trial that the constitution guarantees.” Sound familiar?
Yet when Taney was called to hear the case of John Merriman, he wrote to Lincoln reminding him that only Congress had the right to suspend the writ of habeas corpus. Lincoln did not publicly respond to Taney’s opinion, but it began, said O’Connor, a Constitutional debate that continues to the present.
She then briefly mentioned FDR’s court-packing plan, covered more extensively in an earlier session, noting that he was not altogether paranoid in his belief that the court was out to get him. “In the 140 years between 1790 and 1930, the court had overruled only 60 acts of Congress, barely half an act a year,” said O’Connor. “But during President Roosevelt’s first term, the court held unconstitutional 12 laws, and some of those were the president’s favorites. On the aptly-named Black Monday, May 27, 1935, the Supreme Court struck down three pieces of legislation all at once.”
The next stop on her tour was what many consider to be the landmark case delineating the separation of powers. It took place in April, 1952, when President Harry Truman directed Secretary of Commerce Charles Sawyer to seize the steel mills during the Korean War in order to stop a nationwide labor strike that he believed would harm the war effort.
While his advisors had told Truman that the courts would not interfere with such a hot-button issue, “what happened was something much larger and produced a watershed Supreme Court decision on presidential power,” said O’Connor.
The decision began when Federal District Court Judge David Pine declared the seizure unconstitutional. Pine’s decision was the precursor to what would become Youngstown Sheet & Tube Co. vs. Sawyer, in which the Supreme Court echoed the district court’s review and concurred that the president had indeed exceeded his powers under the constitution.
As it turned out, O’Connor’s speech was the very definition of a keynote address. And its theme – that of conflicting institutions competing for power run by all-too-real human beings who somehow manage to wrangle correct decisions from mangled situations – ended on an upbeat note.
“The framers (of the Constitution) foresaw that there would be times of crisis – real and perceived, international and domestic, personal and political – and that these times would inevitably put the president in the boundary-pushing role of defining his own parameters, and the courts in the precarious role of reviewing the president’s acts,” said O’Connor. “But they also trusted the balanced system of government that they had created would, at the end of the day, provide a larger perspective … As we face the trials we do today – and we have some major ones – I think we can find hope in the dignity with which the presidents and the judiciary have emerged from even the rockiest episodes of the past and maybe when this subject is addressed again in a future presidential library seminar, it will be remembered at this time, the tasks before us are large, but it will also be remembered that we, like our forbearers, are probably strong enough to handle it.”
We can only hope.
