Centennial Crisis- the Disputed Election of 1876

by William H Rehnquist

  He later became the state’s Chief Justice at a difficult time; New York City was occupied by British troops after the Battle of Brooklyn in the summer of 1776, and other parts of the state were controlled by England. Jay went on to serve briefly as president of the Continental Congress, as its minister to Spain, and as one of the negotiators of the Treaty of Paris which ended the Revolutionary War in 1783. He was named Secretary of Foreign Affairs in the next year and served in that post until the ratification of the Constitution in 1789. He played an important part in persuading the New York State legislature to ratify that document, which it did by the narrow margin of three votes.

  Washington appointed Jay Chief Justice of the newly created United States Supreme Court in 1789, and the Court met for the first time early in 1790. There were few appeals for the Court to hear, and so most of the justices’ time was spent “riding circuit”—sitting as a trial judge in different cities within the geographical area assigned to them.

  Disputes between Great Britain and the United States came to the forefront during Washington’s second term. The British had never relinquished their forts in the area of the Great Lakes, and their naval vessels continued to “impress” American seamen for service in the Royal Navy. On the other hand, British and Loyalist creditors whose rights were protected by the Treaty of Paris were given the runaround when they sought relief against American debtors. In 1794, Washington asked Jay to serve as a special envoy to Great Britain in order to settle these disputes.

  Jay by no means wanted this appointment. Because of the deep division in the country between those who preferred negotiation and those who preferred war, he believed that no emissary could negotiate a treaty without seriously damaging his reputation and career. Yet the United States was in no position to wage war successfully against Great Britain; it had no navy and scarcely any army. Jay wrote to his wife:

  No appointment ever operated more unpleasantly upon me; but the public considerations which were urged, and the manner in which it was pressed, strongly impressed me with a conviction that to refuse it would be to desert my duty for the sake of my ease and domestic concerns and comforts. 2

  Interestingly enough, he does not mention the effect that his absence on such a mission might have on the Supreme Court. He accepted the post and was in England for a year. The treaty he negotiated settled some, but not all, of the disputes between the two countries. Great Britain agreed to abandon her western posts in 1796 but refused compensation for their present occupancy. She also granted very limited access for American commercial shipping to the British West Indies, which had been a mainstay of American commerce before the Revolution. Britain refused to budge on the impressment of American seamen, but commissions were appointed to adjudicate private claims of Americans against Britain, and private claims of British citizens against the United States.

  The Jay Treaty aroused a storm of criticism when its provisions were published in the United States. Jay was burned in effigy by angry crowds of Jeffersonian Republicans, and the treaty was criticized by some Federalists as well. But most historians have come to regard it as the best that could be had for the United States.

  Upon Jay’s return from England, he was elected Governor of New York and resigned the Chief Justiceship to accept that office. This choice on his part must be viewed in the light of the times in which he acted. Less than a decade after its creation, the Supreme Court had gotten off to a very slow start. It decided on the average of ten cases each year in its first decade of existence. When Jay resigned the Chief Justiceship, the Court was not generally regarded as a truly coequal branch of a tripartite federal government. It achieved that status under Chief Justice John Marshall, who served from 1801 to 1835.

  Jay served six years as Governor of New York and lived for nearly thirty more. Upon his resignation as Chief Justice, Washington nominated John Rutledge of South Carolina to succeed him. Ironically, and unfortunately for Rutledge, he had made a speech in his home state denouncing the Jay Treaty; the Federalist-dominated Senate refused to confirm him in December 1795, so he served for only a few months under a recess appointment.

  Washington then nominated Oliver Ellsworth of Connecticut. He, too, would be sent on a foreign mission while holding that office—by John Adams, who succeeded Washington in 1797. Adams named Ellsworth as one of a three-man delegation to go to Paris and negotiate an end to the “undeclared war” between France and the United States. Like Jay, he was gone for a year and does not seem to have been greatly missed by his colleagues on the Court. In the fall of 1800 he fell ill in Paris and sent his resignation to President Adams.

  NEARLY EIGHT DECADES passed between the time of Ellsworth’s resignation and the service of the five Supreme Court justices on the Electoral Commission in 1877. Twenty years after that, Chief Justice Melville W. Fuller was asked on two occasions to serve in an extrajudicial office.

  Fuller was born in 1833 and lived until he was a young adult in Augusta, Maine. He then pulled up stakes and headed west for the raw, bustling city of Chicago. The city was growing by leaps and bounds because of its location at the foot of Lake Michigan; it would eventually become the center of the largest railroad network in the country.

  Fuller took up the practice of law, and in time rose to the top of the Chicago bar. He was also active in Democratic politics, serving a term in the legislature and as a delegate to a state constitutional convention. It was this party activity which lead to his acquaintance with Grover Cleveland of New York. During Cleveland’s first term as President, Chief Justice Waite died in the spring of 1888, and Cleveland nominated Fuller to succeed him.

  Fuller had not been in uniform in the Civil War, and during his one term in the Illinois legislature he joined with other Democrats in opposing some of the war measures proposed by Richard Yates, the Republican Governor. As a result, a number of Republican senators stood against his confirmation as Chief Justice twenty-five years later. They printed a pamphlet which concluded:

  The records of the Illinois legislature of 1863 are black with Mr. Fuller’s unworthy and unpatriotic conduct. . . . They cannot be answered by fond exclamations about “Mel Fuller” or that he was a Douglas man or that “Maine cannot produce copperheads.” . . . Let us hope that no Senator . . . whether he calls himself a Democrat or Republican will tolerate a copperhead as Chief Justice of the United States.3

  Nearly four months after his nomination, the Senate confirmed Fuller by a vote of 41 to 20.

  The Court over which Fuller presided was a markedly different institution from that of John Jay’s time. Instead of deciding ten cases per year, it was reviewing 200 to 300 cases annually and still falling steadily behind in its docket. A case might wait as long as three years to be decided. This congestion was alleviated by the enactment of the Circuit Court of Appeals Act of 1891, which created intermediate federal courts of appeals in different parts of the country. But the Court still had to decide upwards of 200 cases every year. And it was in this context that the Venezuela Boundary Dispute arose in 1896.

  The boundary between British Guiana and Venezuela had been contested for a number of years. But President Cleveland invoked the Monroe Doctrine to pressure Great Britain into entering an agreement to arbitrate the dispute. Under the treaty thus negotiated, one of the arbitrators was to be designated by the President of Venezuela, one by the justices of the United States Supreme Court, and two by the British Privy Council; these four were to select a fifth member of the tribunal. The President of Venezuela appointed Fuller, and the Supreme Court selected Associate Justice David J. Brewer, a nephew of Stephen J. Field. Frederick DeMartins, a Russian jurist, was chosen as the fifth member of the panel. But Fuller would regret his acceptance of the appointment when the volumes of evidence submitted to the tribunal poured in. That body was originally scheduled to meet in Paris in the middle of the October 1898 term of the Supreme Court, but Fuller wrote to his English counterparts that neither he nor Justice Brewer could possibly go to Europe before th
e Court adjourned in the late spring. And so they would both spend the summer of 1899 abroad.

  At roughly the same time, the Spanish-American War broke out. The United States had long sympathized with the Cubans, who were harshly treated by their Spanish overlords. In early 1898, the U.S. battleship Maine was blown up in Havana Harbor. Suspicion that the blast had been intentionally caused by Spanish officials fueled war fever in the United States to cries of “Remember the Maine.” Congress declared war in March 1898, but the war was short-lived. The U.S. Army in Cuba, and the U.S. Navy there and in the Philippines, completely crushed the Spanish armed forces. In August, President William McKinley, who had succeeded Cleveland in the previous year, sent Fuller the following telegram at his summer home in Sorrento, Maine:

  IT WOULD GIVE ME SPECIAL PLEASURE IF YOU WOULD PERMIT ME TO CONSIDER YOU FOR MEMBERSHIP ON THE PEACE COMMISSION. WIRE ANSWER. WILLIAM MCKINLEY.

  Fuller first wired, and then wrote McKinley in detail of his reasons for declining:

  My Dear Mr. President:

  Your telegram of yesterday came during my absence and I did not receive it until later in the afternoon. This led to haste in my reply and I answered as I did partly from a feeling that perhaps it might be a duty to accept if you thought fit to tender the appointment and partly out of my personal regard for you if perchance you were embarrassed as to a choice. But on reflection I became absolutely convinced that the path of duty laid distinctly the other way and accordingly telegraphed you this morning. I would have done so last night but the office was closed.

  I am as you are aware one of the arbitrators under the Anglo-Venezuelan treaty and although the hearing will doubtless not be had until next summer, either Mr. Justice Brewer or myself or both of us may be compelled to go over to Paris in February to attend the organization of the tribunal. At the time I assented to the wish that I should accept the position it seemed best that I should do so but I have become satisfied since that I was mistaken in the view that I then entertained.

  My duty to the country lies in the discharge of my duty to the Court over which I preside and the labors of the Court are, as you know arduous and many matters of detail necessarily devolve upon the Chief Justice. Nothing but some imperative exigency ought to be allowed to interfere in any way with the conduct of the business that we are appointed to perform and I am quite sure that the Chief Justice should not take on any additional burden....4

  Fuller’s reasons, it may be noted, were quite different from those advanced by Jay a century earlier. Fuller rightly anticipated no harm to his reputation in serving on the Venezuela Boundary Commission, whose actions were of little interest to most of his countrymen. The Peace Commission’s work, ending the Spanish-American War, was of course of more interest to them, but negotiating a treaty with a badly beaten enemy carried few of the risks that Jay’s parley with Great Britain carried for him. Fuller’s concern was entirely for the work of the Court, which he felt would suffer if his time were spent elsewhere. The role of the Chief Justice at the end of the nineteenth century was much more demanding than a century earlier.

  NOT UNTIL the mid-twentieth century was a member of the Supreme Court again called upon to undertake a significant extrajudicial mission, and this time the issue at hand was the United States’ preparedness for World War II. In July 1941, Japan announced that it had assumed a protectorate over all of what was then French Indo-China. President Franklin D. Roosevelt then froze Japan’s assets in the United States, and Britain and the Netherlands did the same, cutting off Japan’s purchases of oil, rubber, and scrap iron. In October, the Japanese cabinet, headed by Prince Konoye, who wished to conciliate the Allies, fell. He was succeeded by Hideki Tojo, representing the more aggressive views of the Japanese military. Negotiations were then opened between Japan and the United States, but the parties were so far apart that there was no real hope of a successful conclusion.

  On November 27, the top Army and Navy officials in Washington sent messages to General Walter Short, the Army commander in Hawaii, and Admiral Husband E. Kimmel, the Navy commander there. These messages related that negotiations between the United States and Japan were going nowhere, and Japanese military attacks against the Philippines, Thailand, or the Kra Peninsula were expected because of the movements of Japanese troops and naval task forces.

  The measures taken in response to this warning would become a matter of controversy. On November 26, a Japanese task force consisting of 2 battleships, 2 heavy cruisers, 11 destroyers, and 6 aircraft carriers carrying over 400 planes started from its staging area in the Kurile Islands off Japan for its destination: the U.S. naval base at Pearl Harbor in Hawaii. At 7:55 a.m. on December 7, the Japanese planes bombed and torpedoed U.S. planes and battleships located there.

  More than 2,000 American troops and civilians were killed in the raid, 140 planes destroyed on the ground, 2 battleships sunk, and 4 others damaged. In his radio broadcast the following day asking Congress for a declaration of war, President Roosevelt referred to December 7 as a “date that would live in infamy.”

  The response of the American public in the immediate aftermath of the attack on Pearl Harbor was outrage against Japan mixed with dismay at the lack of preparedness of the United States forces at Pearl Harbor and in the Philippines. Senator Robert Taft of Ohio, a leader of the isolationist wing of the Republican Party, called for a congressional investigation of the situation, and several of his colleagues joined him. Roosevelt was alarmed by the prospect of such an inquiry; release of the cable traffic would alert the Japanese to the fact that the United States had broken the Japanese code, and any open-ended probe could provide fodder for his political opponents in the 1942 elections.

  The President turned to Justice Owen Roberts to head an investigating commission. Roberts had been a highly successful Philadelphia lawyer, and the special prosecutor in the Teapot Dome Scandal in the mid-twenties; he was appointed to the Supreme Court by Herbert Hoover in 1930. Roosevelt issued an executive order on December 18 appointing Roberts as chairman and four senior military officers as members “to ascertain and report the facts relating to the attack made by Japanese armed forces upon the territory of Hawaii on December 7, 1941.

  The purposes of the required inquiry and report are to provide bases for sound decisions whether any derelictions of duty or errors of judgment on the part of the United States Army or Navy personnel contributed to such successes as were achieved by the enemy on the occasion....”5

  The Commission went to work immediately, meeting in Washington on December 18 through 20, on the last date leaving for Honolulu, where they arrived on December 22. A series of meetings was held at various places in Hawaii—over a period of three weeks. In mid-January, the members returned to Washington and held regular sessions for the next week. In all, the Commission examined nearly 150 witnesses and received numerous documents. All persons, military or civilian, who were thought to have knowledge of relevant events were subpoenaed. In addition, the Commission issued a public notice inviting all persons residing on Oahu who might have useful knowledge to appear, and a number did so. On January 23, the Commission submitted a twenty-one-page report to the President. The report is surprisingly readable for a government document. Its critical findings were these.

  First, in January 1941, just about the time that Admiral Kimmel and General Short assumed their respective commands in Hawaii, the Secretary of the Navy wrote the Secretary of War that increasing friction between Japan and the United States had prompted a review of security measures for the fleet while it was in Pearl Harbor. The letter pointed out that “if war eventuates with Japan, it is believed easily possible that hostilities would be instigated by a surprise attack on the fleet or the naval base at Pearl Harbor.” It urged coordination of Navy and Army efforts to ensure preparedness. Kimmel and Short each received a copy of the letter.

  Second, on November 24, 1941, the Chief of Naval Operations sent a message to Kimmel saying that the Navy Department thought a surprise aggr
essive movement by Japan in any direction, most likely on the Philippines or Guam, was a possibility.

  Third, on November 27 the Army Chief of Staff informed General Short that negotiations with Japan were ending, and that hostilities on its part were momentarily possible.

  Fourth, that same day, the Chief of Naval Operations sent a message to the Commander of the Pacific Fleet that Japan was expected to make an aggressive move within the next few days, and that an amphibious expedition against either the Philippines, Thailand, or the Kra Peninsula was likely.

  Fifth, Article XI of the Roberts Report stated:

  At about noon, eastern standard time (6:30 a.m. Honolulu time), December 7, an additional warning message, indicating an almost immediate break in relations between the United States and Japan, was dispatched by the Chief of Staff after conference with the Chief of Naval Operations, for the information of responsible Army and Navy commanders. Every effort was made to have the message reach Hawaii in the briefest possible time, but due to conditions beyond the control of anyone concerned the delivery of this urgent message was delayed until after the attack.

  The Commission found that the failure of Kimmel and Short to confer with each other about joint defense plans in the light of repeated warnings was a dereliction of duty. Each commander had committed errors of judgment in not recognizing the seriousness of the situation.

  Kimmel in particular—and after he died, his descendants— carried on a campaign to rehabilitate himself. He succeeded in getting the “dereliction of duty” changed to “errors of judgment.” But numerous other critics of the Roberts Commission Report have sought, not so much to vindicate Kimmel and Short, but to implicate the Washington high command, from the President on down. The more extreme of these critics seek to show that Roosevelt not only provoked the attack on Pearl Harbor, but actually welcomed it, and, indeed, perhaps had advance knowledge of it. That the measures taken by his administration in the summer of 1941 ended the hope of any reconciliation with Japan is doubtless true, but it is a big and unjustifiable leap from that proposition to the conclusion that FDR knew of the impending attack on Pearl Harbor and failed to alert the U.S. commanders in Hawaii.