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Show Sent vs. Supreme Court An Ancient Feud I By ELMO SCOTT WATSON ?nM the nation-wide furore over President Roose- It's plan for judicial reform, including the so-laUed so-laUed "packing" of the Supreme court, one might fqsume that all this were something new in our Lstory. But the fact is that the issue of President r supreme court is an ancient feud which began luring the earliest days of the republic and has !amed up at one time or another during the last entury and a quarter. There is a curious analogy between the first of nces and the latest. The first was back in 1800 ias JeSerson was elected President as the can-the can-the Republican party (the ancestor of the present fc riarty) and was preparing to give the country I f n f i f ill fcew Deal" admin-Ifter admin-Ifter eight years of ie Federalists, days the Supreme sisted of a chief !,j five associate rovidcd for under ary act of 1789 o prescribed the A cartoon in Frank Leslie's Weekly printed at the time of Grant's alleged "packing" of the Supreme court. fight on the Supreme court. The Republicans declared that the court should have declared the Sedition act unconstitutional as a violation of free speech. Jefferson first proposed to declare it null and void in a message to congress. con-gress. Finally, however, he just decided not to enforce it against offenders arrested before the expiration ex-piration of the act on March 3, 1801 and to pardon prisoners then in jail for violating it. But his followers were not content con-tent with this example of the Chief Executive taking upon himself him-self the function of the Supreme court. They had been enraged by the stump speeches delivered by Federalist judges when instructing in-structing juries and they were especially bitter against Justice Samuel Chase of the Supreme court who had been especially severe in denounoing Republican principles from the bench. "The modern doctrines . . . that all men in a state of society are entitled to enjoy equal liberties and equal rights" he had said, "will . . . certainly and rapidly destroy all security to personal liberty" this from a man who, as a delegate to the Continental Congress from Maryland, had signed the Declaration of Independence! Inde-pendence! A Vote to Impeach. The house of representatives voted his impeachment and John Quincy Adams said that it "unquestionably "un-questionably intended to pave the way for another prosecution which would have swept the judicial judi-cial bench clean at a stroke." "Now we have caught the whale, let us have an eye to the shoal" said Jefferson, indicating that Adams' change was a valid one. But in the senate, where the impeachment im-peachment trial was held, the Federalists were strong enough with their nine senators out of the total membership of 34 to For it was during this period that John Marshall, with his interpretations inter-pretations of the Constitution, increased in-creased the authority of the judiciary judi-ciary and elevated the Supreme court to the prestige which it has enjoyed ever since. In the celebrated cele-brated Marbury vs. Madison case in 1803 he laid down for the first time in the name of the entire en-tire court the doctrine that the judges have the power to declare an act of congress null and void when, in their opinion, it violates the Constitution. Jefferson Views With Alarm. This doctrine caused consternation consterna-tion among Jefferson and his supporters. sup-porters. Exclaimed the President: "If that idea is sound, then indeed in-deed is our Constitution a complete com-plete felo de se (legally a suicide). sui-cide). For, intending to establish three departments, co-ordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others, and to that one too, which is unelect-ed unelect-ed by and independent of the nation . . . The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary judi-ciary which they may twist and shape in any form they please . . . A judiciary independent of a king or executive alone is a good thing; but independent of the will of the nation is a solecism, at least in a republican government." govern-ment." But Marshall's idea prevailed pre-vailed and in this first feud be- the age of seventy years and serving 10 years on the federal bench could do so with pay. This bill would have permitted President Grant to make only one appointment to the Supreme court since the membership had not fallen below eight since the passage of the 18G6 act. When it became effective In December, Decem-ber, 18C9, the Supreme court was engaged in deliberating oft the legal tender cases. The first conference con-ference of the court on the case resulted in a four to four decision. deci-sion. Grier suddenly shifted his position, after an inconsistency was pointed out to him, and the court ruled five to three adversely on the legal tender acts. Rejecting His Own "Baby". One of the Justices who voted against the act was Chief Justice Chase. As secretary of the treasury treas-ury in Lincoln's cabinet he had inaugurated the policy of issuing paper money and now as Chief Justice he held that his own "financial "fi-nancial baby" was illegal 1 On December 15, 1869 Grier submitted his resignation to take effect on February 1. Meanwhile President Grant nominated Eben-ezer Eben-ezer Hoar, his attorney general, to one of the Supreme cdurt vacancies. va-cancies. But he was rejected by the senate before the legal tender tend-er decision became known. Grant also named Edwin M. Stanton, his secretary of war, to Justice Grier's place but Stanton died four days after the nomination was sent to the senate. On February 7, 1870, as the Su- X MARSHALL d jurisdiction of the It also provided for :uit courts to be held ; ear, each composed ustices of the Su-iurt Su-iurt sitting with one ourt judge, and for al district courts, embers of the Su-urt Su-urt protested against :cuit riding duties, ; of representatives an investigation of ! tion. f'rJ w- n A 4M tween the President and the Supreme Su-preme court, the latter was completely com-pletely victorious. In 1837 two more justices were added to the Supreme court. Soon after Lincoln lecame President there were three vacancies in the Supreme court two resulting from death and a third from the resignation of a Southern sympathizer. sym-pathizer. At first the new President Presi-dent did not seem to be in a hurry to fill the vacancies. But with cases challenging the preme court was announcing us adverse decision in the legal tender cases, Grant sent to the senate the names of William Strong of Pennsylvania and Joseph Jos-eph P. Bradley of New York for the two vacancies on the court. It was this coincidence, plus the subsequent events which gave rise to charges that Grant had "packed" the court to get a reversal re-versal of the legal-tender decision. deci-sion. Four days after the confirmation con-firmation of Strong and Bradley, Attorney General Hoar moved for argument of two other legal-tender cases and the earlier decision finally was reversed by a five-to-four vote on May 1, 1871, Strong and Bradley voting with the previous pre-vious minority. Although Grant has been charged with deliberately "packing" "pack-ing" the court, historians gen- Randolph, Washing-ney-general, conducted ported against the cir-g cir-g duty, so in 1793 confided con-fided that only one jus-Mend jus-Mend each circuit, thus fx justices available for !ing duty. Although this the situation somewhat rked a hardship on the .Jtn H99 President John ;ain brought the matter ngress. The result was d judiciary act, passed iry 13, 1301 which elim-tirely elim-tirely circuit riding by of the Supreme court, new circuit judges for cuits and expanded the the federal courts to 1 constitutional limit. It ided that after the next a member of the Su- urt, the membership of 1 should not be more ' tepublicans Protest. iately the Republicans i terrific uproar. They !ie bill an attempt by ; "alists, who had lost the : -J and congress in the 1 1300, to entrench them- "ly within the judiciary, ' in the provision for the membership of the J court to five. Sixty-nine- Justice William Cushing or health and not ex- we. If he didn't, Jeffer- :r the provisions of this ; would not be able to ' successor, thus keep-, keep-, membership of the court ederalist. the next 13 days, ;nttothe senate nominate nomina-te new judgeships. l.Tn almost entirely g the Federalists and ' FwmJr purely Political ZSaich 2 the senate tl ulhe last name of tr "ed them becuse t btlr.c.onwissions were sLi -ms on the last s trm in office. ."?iter Jefferson was tarshau POlf1Cal enemy. 'f;! state and fc ief Sent had ap- Ionian,,, e Allen ! admi ' Passed d""ng ration t0 re- lfdit Us altas of Re- SAMUEL CHASE prevent the necessary two-thirds vote for Chase's removal. Although defeated in their attempt at-tempt to oust Chase, the Republicans Repub-licans moved at once to repeal the odious "Midnight Judges bill" of March 13, 1801 and thus get rid of the new district judges appointed ap-pointed by Adams. Of course, the Federalist senators raved against this "assault upon the judiciary." They declared that judges were entitled to a life tenure and that the repeal of the law would wreck the Constitution. But the Republican Repub-lican majority nevertheless repealed re-pealed the law on March 8, 1802, thus guaranteeing six judges on the Supreme court bench. Then, ironically enough, the Supreme court, composed almost entirely of Federalist judges, upheld the constitutionality of the repeal act which had the effect of restoring the much disliked circuit riding system. Incidentally, Justice Cushing did not die, as had been expected. He continued to serve until 1810, so Jefferson did not have an opportunity then to appoint ap-point a justice. His opportunity did not come until 1807. In that year the demand de-mand for another circuit in the rapidly-growing new West led to the establishment of one comprising compris-ing Kentucky, Tennessee and Ohio and the addition of a seventh sev-enth associate justice on the Supreme Su-preme court bench. Then Jefferson Jeffer-son had an opportunity to appoint three justices, two for vacancies and one for the newly-created associate as-sociate justiceship. But he soon found himself balked by his own appointees. One of them, Justice William Johnson, rebuked him for his embargo acts and the others joined with Chief Justice Marshall in strengthening the federal government in opposition to Jefersonian ideals- North's blockade of boutnern ports coming up, it seemed advisable ad-visable to do so. Then on March 3, 1863 congress added Oregon to California to form the tenth circuit and provide an additional justice for the Supreme court. Three days later Lincoln appointed ap-pointed Stephen J. Field to the new post and on that day the court upheld the legality of the federal government's blockade. It is not clear whether there was any connection between the doubt over what the court's decision would be in this case and the appointment of the tenth justice. But as it turned out, Field's vote wasn't needed. For the court, by a five to four vote, upheld the government. Then in 1864 Chief Justice Roger Brooke Taney died and Lincoln named Salmon P. Chase, his secretary of treasury, as Taney's Ta-ney's successor. This appointment appoint-ment had an interesting aftermath. after-math. In 1866 the number of justices was reduced to eight. In April, 1869, the house passed a bill providing pro-viding for a ninth. It had origi-Sly origi-Sly included in this bill a provision pro-vision similar to that proposed by President Roosevelt for the apartment ap-artment of additional justices for incumbents over seventy nf ace This was inspired S p"rt by to- f-t that Justice Grier, then seventy-six years old, SastaafecblectmenUJ, lv as well as physically. In the fall of 18C9 the other justices of S court sent lo Grter a suggestion sugges-tion that he should retire. The senate, however, refused to ,,!r in the house proposal for CStment of additional judges 8PS Ts compromise it was pro-8 pro-8 - id that any federal judge who wfshed to reflre after reach SALMON P. CHASE erally absolve him from that charge. They point out that Grant had no advance knowledge of the nature of the decision, and that, since virtually every state court (except Kentucky) and every prominent Republican lawyer held the view that the legal-tender legal-tender act was constitutional it would have been impossible for the President to find any state iudfie or any lawyer of his own iarty who differed from Strong and Bradley in the view which they later expressed on the Supreme Su-preme bench. e Western Newspaper Union. |