Chief Justice Rehnquist, Justice O’Connor, Justice Scalia, and John O’Connor waiting for President George W. Bush’s first inauguration in 2001. (Photograph Credit 1.4)
The U.S. Congress adopted the Authorization for the Use of Military Force (AUMF), which gave President George W. Bush the authority to use military force against the entities responsible for the attacks. It also gave the President authority to prevent future terrorist attacks. Using this law, the President sent U.S. troops to Afghanistan to wage war against al-Qaeda and the Taliban. The President also set up a detention center at the U.S. naval base in Guantánamo Bay, Cuba, and established protocols to try the detainees. These actions prompted several major Supreme Court decisions on the scope of the Executive’s power in prosecuting the War on Terror.
In Hamdi v. Rumsfeld, the first of these cases, the Supreme Court considered the case of Yaser Hamdi, an American-born citizen who was captured on a battlefield in Afghanistan. He was brought back to the United States and designated an “enemy combatant.” Hamdi’s father filed a lawsuit contending that his son should be permitted to challenge this designation.
In June 2004, the Court, in an opinion I authored, held that “a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the government’s factual assertions before a neutral decisionmaker.”13 The government had argued that the separation of powers required that the courts play a far more limited role in reviewing discretionary judgments of the executive branch. The Court, however, viewed that position as sweeping aside the judiciary’s essential role in maintaining the “delicate balance of governance.”14 A “state of war,” we concluded, “is not a blank check for the President when it comes to rights of the Nation’s citizens.”15
In Hamdan v. Rumsfeld, the Court considered the permissibility of the military tribunals set up by the President to try detainees, and the limited rights available in such proceedings. The Court determined that Congress had authorized the Executive to try suspected terrorists in military tribunals in only exceptional circumstances. However, the Court set the standard procedural rules of courts-martial as the baseline to be used in such trials, rather than the more limited rights the government had provided. While the administration may be permitted to change or adapt those rules, it must demonstrate that using the standard courts-martial rules would be impracticable. Four members of the Court in Hamdan also indicated that the proposed military tribunals violated Article 3 of the Geneva Conventions, which requires that criminal sentences be issued by “a regularly constituted court affording all the judicial guarantees recognized as indispensable by civilized peoples.”16
After the Supreme Court decided Hamdan, Congress passed the Military Commissions Act (MCA), which some believed repealed all the federal courts’ jurisdiction over the claims of those who have been designated enemy combatants. As a result of the MCA, lower-court habeas corpus challenges filed by prisoners at Guantánamo questioning their detainment were dismissed for lack of jurisdiction.
In Boumediene v. Bush, the Supreme Court held that the United States’ exercise of authority over Guantánamo gave the detainees a constitutional right to bring their habeas corpus claims in federal district courts. The Court also held that the procedures authorized under the Military Commissions Act, which called for military tribunals to look into the detention of the Guantánamo detainees, were not an adequate substitute for habeas. As the Court explained, “[t]he laws and Constitution are designed to survive, and remain in force, even in extraordinary times. Liberty and security can be reconciled; and in our system, they are reconciled within the framework of the law.”17
What the War on Terror cases illustrate is the vigorous interchange between our branches of government. The interchange is ongoing, with many difficult questions unanswered. But the courts have played a vibrant role in imposing core principles of liberty upon the critical enterprise of national security. In a sense, democracy has been the fulcrum of the balance; the structure of our government has provided the mechanism of mediation.
WHEN THE FOUNDERS CRAFTED the masterful Constitution that survives to this day, could they have imagined the drama of these stories? Could they have anticipated the human dynamics and battles of will that would pepper the centuries to come and change the course of history in such fascinating ways? Perhaps. Certainly, at a minimum, they 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 powers, and the courts in the precarious role of reviewing the President’s acts. They knew, because common sense dictates as much, that institutions that are large in power and large in their impact inevitably have run-ins that are large in scale and large in their ultimate consequences.
Cartoon by Guernsey Le Pelley, 1974. It shows President Nixon holding on to audiotapes while being flung off a seesaw marked “Executive Privilege.” The catapult is powered by a gavel marked “Supreme Court.” (Photograph Credit 1.5)
But they also trusted that, in times of trial, their balanced system of government would provide an even larger perspective. They knew that the people of their fledgling nation could be counted on to choose their leaders wisely, and that those chosen could be counted on to respect the roles set forth for them.
As we face the challenges of today, we can find great hope in the dignity with which the presidency and the judiciary have emerged from even the rockiest episodes of the past. No doubt one hundred years from now Americans will recognize that the tasks before this generation were also large. But I believe they will conclude that we, like our forebears, were strong enough to meet them.
THE CALL TO SERVE
Judicial Appointments
ONE OF THE MORE INTERESTING EVENTS IN OUR NATION’S governance is the selection of a new Justice for the Supreme Court. Our Constitution, in Article II, Section 2, provides that the President has power, with the advice and consent of the Senate, to appoint judges of the Supreme Court.
Every President, except William Henry Harrison, Zachary Taylor, and Jimmy Carter, has had an opportunity to appoint at least one Justice. In 1866, President Andrew Johnson nominated Henry Stanbery to fill a vacancy, but Congress renounced the vacancy by eliminating the seat. President Johnson never got a second chance to fill a Court vacancy. President Washington, on the other hand, nominated eleven Justices. President Andrew Jackson appointed six, including Roger Taney, and Franklin Roosevelt appointed nine, including Robert Jackson.
Every President making appointments has tried to appoint people who were politically acceptable to the President himself. However, a few Presidents later came to regret one or more of their appointments, while others would come to celebrate their appointments as among their proudest achievements.
President Ronald Reagan and Justice Sandra Day O’Connor in 1981. (Photograph Credit 2.1)
Take President John Adams. A principal part of Adams’s legacy as President was the appointment of John Marshall, who served as Chief Justice for more than thirty-four years. Marshall became known as “the Great Chief Justice.” Many of the fundamental legal questions about the Constitution were decided by the so-called Marshall Court. As we have seen, Marshall’s opinion in Marbury v. Madison1 established the principle, which was not spelled out expressly in the Constitution, that the Court had the power to determine the constitutionality of laws passed by Congress. His opinion for the Court in McCulloch v. Maryland,2 meanwhile, affirmed the supremacy of the Constitution and made clear that the federal government derives its power directly from the people rather than from the states. President Adams himself once said, “My gift of John Marshall to the people of the United States was the proudest act of my life.” Today, a large bronze statue of John Marshall is prominently featured on the ground floor of the Supreme Court as an homage to his important contributions.
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bsp; Portrait of James Madison. (Photograph Credit 2.2)
Or consider President James Madison, our fourth President, who selected Joseph Story of Massachusetts as his pick for the Court. Story served as a Justice from 1811 to 1845. Though he was only thirty-two when appointed to his seat—making him the youngest Supreme Court Justice in history—Story earned a place alongside Marshall, his colleague and close friend, as one of the greatest Justices of the Court.
Story became a Justice at a time when the American constitutional system was in its infancy, and he was instrumental in establishing a robust role for the federal courts in preserving that system envisioned by the Founding Fathers. Story’s influence, moreover, extended to far-reaching areas of the law. He promoted the notion of a uniform commercial system and helped develop admiralty law, patent law, and equity jurisprudence.
Story also left an enormous legacy of constitutional scholarship. His comprehensive treatise on the U.S. Constitution, Commentaries on the Constitution of the United States, is one of the seminal sources of historical information on early American jurisprudence and remains a crucial source of historical information on the early days of our constitutional system.
Interestingly, Story, despite his reputation as a brilliant lawyer, had not been President Madison’s first choice for Justice. Madison’s first choice for a Justice was his own Attorney General, Levi Lincoln of Massachusetts. Lincoln was sixty-one years old and was losing his eyesight. He informed Madison that he did not want the appointment. President Madison ignored Lincoln’s response and made the appointment anyway, but Lincoln refused it. Madison then nominated Alexander Wolcott of Connecticut, but the Senate promptly rejected his nomination. Madison then selected John Quincy Adams, the son of John Adams, but Adams rejected the appointment on the grounds that he had too little legal background and too much political ambition. (In fact, he would later become our sixth President.)
President Madison presumably was then weary of trying to make successful appointments to the Court. He waited seven months before he finally nominated Story. Thomas Jefferson was strongly opposed to Story’s appointment, calling him a “pseudo-Republican,” a “political chameleon,” and an “independent political schemer.”3 Nevertheless, the Senate took only three days to confirm the Story appointment. And with that appointment, they elevated a legal giant who made innumerable contributions to the legal system over his lifetime.
For other early presidents, like President Washington, the appointment process was more of a mixed bag. Washington, as mentioned, sought to appoint men who were strong supporters of the Constitution, were reliable supporters of the Federalist cause, had service in the Revolution, were active in the political life of the nominee’s state, and were favorably regarded by the President or other well-known Federalists. But because Washington nominated such prominent statesmen, and the young Supreme Court was not yet the prominent institution that Chief Justice Marshall would make it, few of Washington’s nominees stayed for very long.
John Jay, selected by Washington as the Court’s first Chief Justice, was a New Yorker and had been influential in obtaining New York’s ratification of the Constitution. Despite his judicial office, however, he was sent to England to negotiate what would later be known as the Jay Treaty, which resolved various claims that America and England had against each other as a result of damages incurred during the Revolution. During his absence, Jay’s political prominence led him to be nominated and elected governor of New York without so much as a single campaign speech. On his return, he resigned as Chief Justice to assume his elected office; he thought the Supreme Court would never amount to much.
Jay was not the only Washington nominee to prefer other offices over Justice of the Supreme Court. John Rutledge was confirmed by the Senate as an Associate Justice, but despite his confirmation, Rutledge resigned before the Court actually sat in order to become Chief Justice of South Carolina. When John Jay resigned as Chief Justice, President Washington chose Rutledge again, this time to be the new Chief Justice of the United States. Ironically, perhaps, the Senate refused to confirm Rutledge for Jay’s seat as Chief Justice in large part because Rutledge had been an outspoken critic of the Jay Treaty.
The other men selected by President Washington for the original six-member Supreme Court were James Wilson of Pennsylvania, John Blair Jr. of Virginia, William Cushing of Massachusetts, and Robert Hanson Harrison of Maryland. Like Rutledge, Robert Harrison resigned soon after his confirmation as an Associate Justice to become chancellor of Maryland, an important judicial post. The last of the original Court members was James Iredell of North Carolina.
The Supreme Court had little to do in its early years. The burden of traveling to and from Court sittings, first in Philadelphia, then in New York City, and finally in Washington, D.C., was substantial. Like Chief Justice Jay, several Justices thought the Court would never be very significant. As a result the tenure of most was relatively brief. Only Justice Cushing stayed for a long time—twenty-one years.
Nevertheless, President Washington did have one of his appointments impeached. When Justice Blair resigned, President Washington selected Samuel Chase of Maryland to fill the vacancy. Chase, thought by many to be outspoken and acid-tongued, made many disparaging comments about Thomas Jefferson and the Republicans after he became a Justice, both before and after Jefferson became President. The House of Representatives impeached Justice Chase during Jefferson’s presidency, alleging he had committed “high crimes and misdemeanors.” The Senate did not find Chase guilty, by a small margin of four votes, but an important precedent had been established.
President Washington’s last appointment to the Court was Oliver Ellsworth of Connecticut, who was nominated and confirmed as Chief Justice after Jay resigned and the Senate rejected Rutledge. Ellsworth served only four years and resigned for ill health.
By the time Thomas Jefferson became President, he felt that he had work to do. All of the Justices were Federalists appointed by Washington and Adams, including Chief Justice John Marshall, whose presence was already being felt. Hoping to balance out their influence, Jefferson made three appointments to the Court, each a “Republican-Democrat.” His third appointment resulted from Congress’s enlargement of the Court to seven members.
Jefferson instituted a new procedure by asking every member of Congress to suggest the names of two people for consideration for the Supreme Court for the new vacancy. The resulting choices were William Johnson of South Carolina, Henry Brockholst Livingston of New York, and Thomas Todd of Kentucky. Jefferson had hoped that appointing these Republican-Democrats would curb the power of Chief Justice Marshall, but in that effort, he failed. His appointees generally went along with Marshall’s opinions. Later, in 1820, when he was out of office, Jefferson described the members of the Supreme Court as a “subtle corps of sappers and miners” consisting of a “crafty chief judge” and “lazy or timid associates.”4
Other than President Madison’s already-mentioned appointment of Justice Story, the next President who had a major influence on the Supreme Court’s history was Andrew Jackson. Jackson made six Supreme Court appointments, including John Marshall’s successor as Chief Justice, Roger Taney of Maryland. Jackson’s Supreme Court selections were largely driven by geography and political loyalty. One of his early appointments was John McLean, who had been postmaster general. While serving on the Court, McLean ran for President four times, each time for a different party and each time unsuccessfully.
Taney was widely regarded as an excellent Chief Justice, although he and the Supreme Court have been criticized for handing down the worst opinion in the Court’s history—“the Dred Scott decision” of 1857.5 The decision ruled that “the negro race” could not be citizens and that slaves were property of their masters. It further held that the Missouri Compromise, an 1820 agreement between proslavery and antislavery factions over the extension of slavery in the Western territories, was unconstitutional. The Dred Scott decision was thought to hasten the Civil
War, and it tarred Taney’s reputation. Congress refused to apportion the funds for a bust of Taney at the Supreme Court—to join those of the prior Chief Justices—until Taney’s successor had died, almost twenty years after Taney’s own death.
The worst luck in Supreme Court nominations, however, clearly belongs to the Whig Presidents. General William Henry Harrison, hero of the Battle of Tippecanoe, became our first Whig President in 1841. He was also the first President to make no Supreme Court nomination. It was perhaps his own fault, at least in part—his two-hour inaugural address on a very cold day gave him pneumonia and he died after thirty-one days in office. John Tyler succeeded Harrison and over approximately thirteen months, he made five Supreme Court nominations that failed to be confirmed. He succeeded with only one nomination, of Samuel Nelson of New York, who served almost thirty years.
President James Knox Polk, a Democrat, defeated Henry Clay in 1844 and successfully appointed Levi Woodbury to replace Justice Story and Robert Cooper Grier to replace Justice Henry Baldwin. Polk had twice offered Baldwin’s seat to future President James Buchanan, but Buchanan twice refused, perhaps wisely. After Polk’s term ended, Zachary Taylor retook the White House for the Whigs, only to become the second President to make no Supreme Court nominations when he died in office in 1850.
President Abraham Lincoln was the next President to have a major impact on the Court, filling five vacancies during his four years in office. His most impressive appointment was Samuel Freeman Miller of Iowa. He had both a medical and a law degree. He had strong support from the North and there was even a petition to Lincoln from 129 of 140 members of the House of Representatives urging selection of Miller for the Court. President Lincoln was pleased to make the nomination and the Senate confirmed it unanimously and immediately. Miller more than justified the confidence shown in his selection. Another noteworthy appointee by Lincoln was Stephen J. Field of California, a strong property rights advocate who is discussed in depth later in this book (see Larger-Than-Life Justices).
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