Five Chiefs Read online

  As our tenth chief justice, Taft is entitled to the credit for two important changes in the work of the Court. He persuaded Congress to adopt the Judiciary Act of 1925, which reduced the categories of cases in which the Supreme Court must hear every appeal, and he argued successfully for the construction of the beautiful building located just east of the Capitol, where the Court is now located.

  Before the completion of our “marble palace,” in 1935, the justices met in several locations within the Capitol. From 1810 to 1860, the justices convened in a small, windowless, but attractive courtroom designed by Benjamin Latrobe. The architect of the Capitol has preserved this courtroom, now known as the Old Supreme Court Chamber, and before presidential inaugurations, the justices meet in that historic courtroom to don their robes. In 1860, the Court moved into the Senate’s original chamber, now known as the Old Senate Chamber, which the Senate had that year outgrown with the admission of new states into the Union. But the justices did not have individual offices in the Capitol. Indeed, until 1935, the justices did most of their work at their homes—which is why Nat Nathanson delivered his first memos to Justice Brandeis by slipping them under his front door. Chief Justice Taft correctly concluded that they could work more efficiently in new quarters. He was also correct in thinking that the practice of arguing judicial cases in the Capitol was somewhat inconsistent with the constitutional separation of the powers of the three branches of government. Unfortunately, Taft died in 1930 before the magnificent building the Court now occupies was completed.

  It was during Taft’s tenure that Justice James McReynolds, often considered a reactionary, wrote two important opinions broadly interpreting the term liberty as used in the Fourteenth Amendment. In Meyer v. Nebraska (1923), the Court overturned Robert Meyer’s conviction for teaching the German language to high school students. In Pierce v. Society of Sisters (1925), the Court sustained a challenge by parochial and private schools to an Oregon statute requiring children to attend public schools. In both cases, the Court held that the state laws in question were invalid as they were deprivations of liberty protected by the due process clause of the Fourteenth Amendment.

  Justice Brandeis built on these and other similar decisions involving the meaning of the word liberty in his concurrence in a 1927 free-speech case known as Whitney v. California. It was his reasoning concerning the existence and importance of the substantive content of the due process clause that qualifies his opinion as the most significant one released during Taft’s tenure as chief justice. I shall quote an excerpt:

  Despite arguments to the contrary which had seemed to me persuasive, it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure. Thus all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States. The right of free speech, the right to teach and the right of assembly are, of course, fundamental rights…. These may not be denied or abridged…. Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty.

  In 1910, well before becoming chief justice and while still president of the United States, Taft nominated Charles Evans Hughes to be an associate justice. Six years later Hughes became the Republican candidate for president and resigned from the Court; he was narrowly defeated by Woodrow Wilson. Hughes served as secretary of state under Presidents Harding and Coolidge, and in 1930, when Taft retired, President Hoover nominated him to the position of chief justice. During both of his periods of service on the Court, he was regarded as a brilliant lawyer and an especially able jurist. I am sure that Bill Rehnquist thought of him as the predecessor whom he most wanted to emulate.

  Hughes’s tenure as chief began during the Great Depression and included the first two terms of Franklin Delano Roosevelt’s presidency. Immediately after FDR took office, Congress enacted a number of far-reaching statutes, several of which the Supreme Court declared unconstitutional. Hughes wrote the Court opinion in A.L.A. Schechter Poultry Corp. v. United States (1935), which held the National Industrial Recovery Act of 1933—a major piece of FDR’s economic program—unconstitutional. But he dissented in other cases striking down laws that FDR had championed.

  The Court’s decisions during the first few years of the New Deal created what FDR regarded as a constitutional crisis. In 1937, Roosevelt responded by proposing a Court-packing plan that would have enabled him to enlarge the Court by appointing as many additional justices as the number then on the Court who had served for at least ten years and were at least seventy years old, provided that the total membership did not exceed fifteen. Presumably, the fifteen-justice limit was chosen because six members of the Court were over seventy.

  In his message to Congress supporting the proposal, the president argued that the Court was behind in its work and implied that judges over seventy were so “aged and infirm” that they could not carry their share of the load. Hughes did not then—and I do not now—find that argument persuasive. In March, he responded with a letter to the chairman of the Senate Judiciary Committee explaining that the Court was fully abreast of its work and that in his opinion an increase in the number of justices would impair its efficiency. In June, the Judiciary Committee issued its report recommending rejection of the proposal as a “needless, futile, and utterly dangerous abandonment of constitutional principle.”

  Shortly before that report was issued, Hughes announced his opinion for the Court upholding the constitutionality of a major piece of economic legislation that Roosevelt had lobbied hard to have enacted: the National Labor Relations Act. That decision suggested that the constitutional crisis that precipitated the Court-packing plan was not as severe as FDR believed.

  In that same year Hughes assigned an important opinion dealing with the meaning of the word liberty in the Fourteenth Amendment to Benjamin Cardozo, a justice who had been appointed by President Herbert Hoover after a career on the New York Court of Appeals that had earned him a reputation as one of the country’s most learned and eloquent judges. In Palko v. Connecticut (1937), the Court held that a statute permitting the prosecutor to take an appeal to a state appellate court from a judgment of not guilty in a criminal case was constitutional, even though the double jeopardy clause of the Fifth Amendment would have prohibited a similar appeal in a federal case. It rejected the argument that the Fourteenth Amendment made every provision of the Bill of Rights that limits the power of the federal government a limit on state power as well. Instead, in Justice Cardozo’s words, it was only the particular amendments that “have been found to be implicit in the concept of ordered liberty” that were applicable to the states. In a series of later cases, the Court decided that most provisions of the Bill of Rights do apply to the states, but it has never incorporated them all en masse.

  Hughes continued to perform exemplary judicial work at the head of a nine-justice Court until his retirement, in 1941.

  Harlan F. Stone, our twelfth chief justice, was a scholar. He received a Phi Beta Kappa key when he graduated in 1894 from Amherst College, where Calvin Coolidge was a classmate. Stone next studied and then taught law at Columbia Law School; he began a thirteen-year stint as dean there in 1910. In the fall of 1922 he taught the course in personal property to a class that included William O. Douglas, who would later become a colleague on the Supreme Court. A year later he left Columbia to become a partner in a New York law firm. Coolidge, now president, then made him attorney general and, a year later, an associate justice of the Supreme Court. In 1941, after sixteen years as an associate justice, he was named chief justice by President Franklin Roosevelt.

  As an associate justice, Stone often joined Hughes, Brandeis, and Benjamin Cardozo in dissents from decisions striking down
New Deal legislation. There, as well as in majority opinions written when he was the chief, he interpreted the commerce clause broadly, as John Marshall had in his Gibbons opinion. A characteristic example was his opinion for a unanimous Court in United States v. California (1936), which held that Congress’s “plenary power to regulate commerce” applied equally to commercial activities of states and private individuals: “The state can no more deny the power if its exercise has been authorized by Congress than can an individual.” (Years later, in an opinion that was destined to be overruled, Justice Rehnquist characterized that statement as “simply wrong”; see National League of Cities v. Usery [1976].)

  Two of Stone’s many fine opinions merit special comment. In Minersville School Dist. v. Gobitis (1940), he alone dissented from the Court’s decision that two young children could be expelled from a public school because their unique religious beliefs made it impossible for them to salute the flag in conformance with district policy. He thought the majority’s reasoning inconsistent with earlier cases stressing “the importance of a searching judicial inquiry into the legislative judgment in situations where prejudice against discrete and insular minorities may tend to curtail the operation of those political processes ordinarily to be relied on to protect minorities.” The dissent is especially remarkable because in a similar case that was decided only three years later, the Court overruled the Gobitis case. Three of the justices who had joined the majority in that case—Black, Douglas, and Murphy—acknowledged that they had been mistaken and joined the overruling opinion written by Justice Jackson.

  Chief Justice Stone’s dissent in Girouard v. United States (1946) also arose out of an individual’s conscientious objection to a governmental requirement. Although willing to take an oath of allegiance to the United States in order to become a citizen, Girouard was unable to swear that he would take up arms in support of the country. The question was whether he could nevertheless qualify for citizenship. In earlier cases presenting the same issue, Stone had joined dissents from decisions holding that the applicant could not qualify for citizenship without taking the required oath. In the Girouard case, the majority decided to overrule those cases and adopt the views that Stone had previously endorsed. Stone, however, thought that the legislative history of proposed amendments to the statute that Congress had refused to enact demonstrated that Congress had rejected his interpretation. Although he still thought the law unwise, he believed he had a duty to accept what he understood to be the interpretation that Congress intended.

  Stone planned to explain his views in an oral announcement of his dissent in open court, but while Justice Douglas was reading the majority opinion, Stone suffered his fatal cerebral hemorrhage.

  Stone was unquestionably a great jurist and a great American. There were, however, two imperfections in his career that must be acknowledged. Though a thorough and brilliant scholar, he was an exceptionally poor presiding officer during the Court’s deliberations in conference, which sometimes consumed more than two days. And his two most significant wartime opinions—Ex parte Quirin, rejecting challenges to their death sentences by putative German saboteurs who had voluntarily surrendered to the FBI, and In re Yamashita, upholding a military tribunal’s death sentence imposed on a Japanese general because of atrocities committed by soldiers under his command—may have bent the rule of law in response to perceived military necessity. As Justice Antonin Scalia correctly observed of Ex parte Quirin in his fine dissenting opinion in Hamdi v. Rumsfeld (2004), “The [Quirin] case was not this Court’s finest hour.” And as my former boss Wiley Rutledge explained at length in his dissenting opinion, the Japanese general in Yamashita did not receive a fair trial.

  As a postscript to my brief comments about the first twelve leaders of the Supreme Court, I should add my opinion that five chiefs stand out as national leaders entitled to our highest respect: John Jay, John Marshall, William Howard Taft, Charles Evans Hughes, and Harlan F. Stone. I shall not try to answer the question whether all, or any, of the five chiefs I have known merit similar respect, but I hope the ensuing recollections may help others do so.

  II

  Chief Justice of the United States

  Chief Justice John G. Roberts Jr. is sworn in by Justice John Paul Stevens at the White House. Left to right: President George W. Bush, Chief Justice Roberts, Jane Sullivan Roberts, and Justice Stevens.

  ARTICLE II OF THE Constitution imposes at least three conditions on aspirants to the office of president of the United States. He or she must be a “natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution,… attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.” If these citizenship requirements were taken literally, to become president today, an individual would have to have been a citizen “at the time of the adoption of this Constitution” (that is, in 1788). I am confident that the framers did not expect us to adopt a literal interpretation of those words.

  But whether the Constitution intended to impose three qualifications or four for the president, it imposes none at all for the chief justice. The Constitution mentions the office but does not require that its occupant be a citizen, a lawyer, a voter, or even an adult. Article I mandates that “the Chief Justice shall preside” at any trial by the Senate of an impeachment of the president of the United States, but the office is not otherwise mentioned. And Article III protects the tenure and compensation of “Judges, both of the supreme and inferior Courts,” but without any special reference to the chief. Outside the context of impeachments, then, the Constitution treats all judges of the Supreme Court as equals.

  In practice, however, the chief justice is the first among these equals. Congress has recognized and legislated as much. One is not merely the chief justice of the Supreme Court but, as a matter of statute, “Chief Justice of the United States.” The chief justice receives a higher salary than an associate justice and has statutory duties that no other judge performs. In 1789, Congress appropriated five hundred dollars per year as compensation for the chief’s extra labors, an amount that may have been fair at the time. It is less clear that when Fred Vinson became chief justice, more than a century and a half later, his annual salary of $25,500 fairly compensated him for his additional duties in light of the $25,000 each that other members of the Court received. Nonetheless, the amount of the bonus that the chief justice received remained the same until Warren Burger succeeded Earl Warren in 1969.

  The relative value of the chief justice’s extra work has risen somewhat in intervening years. Chief Justice Roberts is now paid $223,500, nearly $10,000 more than the $213,900 that each of his colleagues receives. The comparative figures demonstrate that Congress assigns a much higher value to the judicial duties that all members of the Court share equally than it does to those unique to the chief. If their pay is the measure, then the nine justices are 96 percent equal, and the chief’s work differs by only 4 percent from that of his colleagues. In my judgment all federal judges are underpaid, but none more so than the chief.

  The chores for which the chief receives some 96 percent of his compensation are similar to those performed by each of his eight colleagues. The work of the entire Court generally falls into three categories: choosing which cases to decide; deciding those cases; and explaining those decisions. The cases that the Court is asked to decide are extremely numerous. Most of them are initiated by the filing of a petition for certiorari, which, as noted earlier, is a request for the Supreme Court to review a decision made by a federal court of appeals or the highest appellate court in a state. It takes four justices to grant such a petition; well over 98 percent of requests are denied unanimously.

  After deciding whether to hear a case initiated by a cert petition, the Court usually enters a simple order granting or denying the petition; the order expresses no view about the merits of the lower court’s decision. Jurisdictional statements, it will be recalled, also initiate some of the cases that the Cour
t is asked to decide. The Court may respond to such statements in several different ways. Most frequently it will enter an order noting probable jurisdiction, which means that the parties will then file written briefs and present an oral argument to the Court. If the case raises a substantial question but the Court is uncertain about its jurisdiction, it may enter a postpone order, which directs the parties to include in their briefs a discussion of the case’s jurisdictional issue as well as its merits. If the Court concludes that there is no merit to the appeal and that it should dispose of the case without further argument, it will enter one of three orders: in cases coming from state courts, it will simply affirm without further explanation; in cases coming from federal courts, it will either dismiss for want of jurisdiction, which means that no federal statute has authorized the Court to hear the case, or dismiss for want of a substantial federal question, which means that the case involves no significant issue of federal law. The vast majority of the papers filed in the Court relate to its function of choosing which cases to decide.

  After a cert petition is granted or the Court has noted probable jurisdiction of an appeal, the parties file written briefs, and an oral argument is held. Thereafter, in a conference attended only by the justices, the members of the Court discuss and vote on how the case should be decided. Usually, but not always, the decision made at conference determines the outcome.

  After the conference, the senior justice in the majority—most often the chief—assigns either himself or another justice in the majority the task of writing an opinion explaining the result. The author then prepares a draft that is circulated to all members of the Court. After receiving this draft, each justice suggests changes, prepares a dissent or a separate concurring opinion, or simply joins the circulating draft. Depending on the difficulty of the case, the process of explaining the decision may take days, weeks, or months. On rare occasions, the Court is unable to resolve all the issues in a case before the term ends (usually in late June or the first week in July) and orders the parties to file additional briefs and present a second oral argument in the next term, which, following a long tradition, begins on the first Monday in October.