Centennial Crisis- the Disputed Election of 1876

by William H Rehnquist

  A more reasonable school of critics faults the military command in Washington for having itself failed—in the face of an intercepted Japanese cable instructing Japan’s emissaries in Washington to break diplomatic relations, and its embassy to burn all documents—to immediately warn the commanders in Pearl Harbor of the sharply increased likelihood of war—not at some time in the near future, but now. An Army board investigating Pearl Harbor several years later concluded that “[General George Marshall failed] to get to General Short on the evening of December 6th and the early morning of December 7th, the critical information indicating an almost immediate break with Japan, though there was ample time to have accomplished this.” 6

  That the Roberts Commission, including four high-ranking military officers in its membership of five, and deliberating during the weeks immediately following Pearl Harbor, would thus criticize the Army Chief of Staff was unlikely, to say the least. But the very summary nature of the clean bill of health given to the Washington brass by paragraph 11 of the report, quoted above, saying that “due to conditions beyond the control of anyone concerned the delivery of this urgent message was delayed,” does not seem to have been the subject of any careful investigation by the Commission and probably should have been omitted.

  Justice Roberts did not sit during the Supreme Court’s argument session in January 1942. Harlan F. Stone, who had become Chief Justice six months earlier, expressed his irritation at Roberts’ absence and at Justice James F. Byrnes’ spending time at the White House consulting on wartime economic planning. He wrote his son:

  I am struggling along with the work of the Court as best I can, with one and a half men away. . . . Roberts has returned from Hawaii, but I think he is still busy preparing his report. I am hoping that we shall get him back on the job soon.7

  It was to be a bad year for Stone. In June he would read in the press of Associate Justice Frank Murphy’s receiving a commission as a lieutenant colonel in the Army, and there would soon be complaints from members of Congress as to the legality of Murphy’s holding two federal positions. A month later, he would confront the issue of extrajudicial duties directly. Roosevelt asked him to conduct an inquiry into the problem of rubber production for the war effort. The need for such an inquiry was prompted by a politically charged dispute both within the administration and in Congress as to the best way to produce synthetic rubber. Stone replied to the President three days later:

  Dear Mr. President:

  I have your letter of the 17th inst. Personal and patriotic considerations alike afford powerful incentives for my wish to comply with your request that I assist you in arriving at some solution of the pending rubber problem. But most anxious, not to say painful, reflection has led me to the conclusion that I cannot rightly yield to my desire to render for you a service which as a private citizen I should not only feel bound to do but one which I should undertake with zeal and enthusiasm. . . .

  A judge, and especially the Chief Justice, cannot engage in political debate or make public defense of his acts. When his action is judicial he may always rely upon the support of the defined record upon which his action is based and of the opinion in which he and his associates unite as stating the ground of decision. But when he participates in the action of the executive or legislative departments of government he is without those supports. He exposes himself to attack and indeed invites it, which because of his peculiar situation inevitably impairs his value as a judge and the appropriate influence of his office.

  We must not forget that it is the judgment of history that two of my predecessors, Jay and Ellsworth, failed in the obligations of their office and impaired their legitimate influence by participation in executive action in the negotiation of treaties. True, they repaired their mistake in part by resigning their commissions before returning to their judicial duties, but it is not by mere chance that every Chief Justice since has confined his activities strictly to the performance of his judicial duties. . . .

  Finally, in October 1942, Justice Byrnes resigned from the Court to devote all of his time to the newly created post of director of economic stabilization. Stone, seldom effusive in his praise, wrote, “I am sorry to lose you from the Court, but I’m glad you can make up your mind whether you want to be a judge or something else.”

  LESS THAN three years later, the issue of Supreme Court justices taking on extrajudicial duties presented itself in as sharp a focus as can be imagined. Roosevelt died at Warm Springs, Georgia, on April 12, 1945. He was succeeded by his Vice President, Harry S Truman. The allies in Europe were sweeping to victory—V-E Day was less than a month away. In late April, Truman asked Supreme Court Associate Justice Robert Jackson to take on the job of chief U.S. prosecutor before an international tribunal to try high German officials accused of war crimes. Within days, Jackson accepted the position with conditions which proved satisfactory to the President. By an executive order dated May 2, Truman appointed Jackson as chief prosecutor.

  Robert H. Jackson was born in 1892 and grew up in Jamestown, New York. He was active in the state Democratic Party and, as a result, became a friend of Roosevelt. After Roosevelt became President in 1933, he brought Jackson to Washington as general counsel to the then Bureau of Internal Revenue. Jackson rose rapidly in the executive hierarchy, serving as assistant attorney general in the Anti-Trust Division of the Justice Department, as solicitor general, and finally as Attorney General. When Roosevelt elevated Stone to the Chief Justiceship in 1941, he appointed Jackson as an associate justice.

  Jackson took on an enormous responsibility, not just as an advocate before the tribunal, but also as a de facto ambassador and as administrator. There had never been such a tribunal before. The United States would prosecute—and judge—along with its wartime allies Britain, Russia, and France. Agreement as to which country would do what, and when, had to be negotiated. A sizable and highly competent staff had to be assembled on short notice, to depart for war-torn Europe for an indefinite period of time.

  Jackson made the first of several trips to Europe in late May to discuss preliminary matters. This was before the age of jet propulsion, and travel was by propeller plane. These planes could not cross the Atlantic Ocean without refueling. Thus a flight from Washington or New York to Paris, like Jackson’s, would stop first at Newfoundland, and then in the Azores, before the final leg to its destination. In Paris, agreements were duly negotiated among the Allies over the summer. Nuremberg, Germany, was designated as the place for the trials to be held.

  These trials began in late November 1945, and Jackson was the first to make an opening statement to the tribunal. He spoke for an entire day and won high praise from American reporters covering the event. Several months later, he undertook the principal cross-examination of Hermann Göring, the highest-ranking German official on trial. Press reviews of this effort were mixed. After all the evidence was in, in late July, Jackson also made the first of the closing speeches for the prosecution. On August 31, the tribunal recessed to consider the cases against the defendants. Its judgment was handed down a month later: of the twenty-two defendants, twelve were sentenced to hang, three to life imprisonment, four to terms ranging from ten to twenty years, and three were acquitted.

  Jackson understandably regarded his participation in the Nuremberg Trials as the crowning achievement of his career. Telford Taylor, one of the other U.S. prosecutors, evaluated Jackson’s performance there in these words:

  In concluding this discussion, I must recur to the unique and vital role played by Justice Jackson. He made mistakes and some bad ones, but there was much more to the Nuremberg case than legal disquisition or cross-examination. Two other things were vital: passion and eloquence. More than any other man of that period, Jackson worked and wrote with deep passion and spoke in winged words. There was no one else who could have done that half as well as he.8

  Criticism of the Nuremberg Trials focused on two issues. The first was whether a Supreme Court justice should participate as a prosecutor
in such a trial. The Republican-controlled Senate Judiciary Committee in 1947 opined

  that the practice of using federal judges for non-judicial activities is undesirable. The practice holds great danger of working in diminution of the prestige of the judiciary. It is a deterrent to the proper functioning of the judicial branch of the government.9

  The second issue was whether or not this sort of trial— not only the prosecutors, but also the judges coming from the victors—would be in fact if not in form a “kangaroo court.” But this criticism softened as the court amassed evidence of the evil intentions and deeds of many of the defendants, and also because three of the defendants were acquitted. Legal scholars also questioned whether the whole idea of such a trial where there was no existing body of law did not violate the principle embodied in the ex post facto prohibition in the United States Constitution. That provision requires that before criminal liability may attach to a person for a particular act, a law making the conduct criminal must have been on the books at the time he committed the act.

  Some of Jackson’s own colleagues joined in the criticism. Justice William O. Douglas (between Jackson and whom no love was lost) opined in memoirs published many years later:

  [Jackson] was gone a whole year, and in his absence we sat as an eight-man Court. I thought at the time he accepted the job that it was a gross violation of separation of powers to put a Justice in charge of an executive function. I thought, and I think Stone and Black agreed, that if Bob did that, he should resign. Moreover, some of us—particularly Stone, Black, Murphy and I—thought that the Nuremberg Trials were unconstitutional by American standards.10

  Whatever the merit of these objections, the Nuremberg Trials were surely superior to the summary court-martial proceedings favored by some members of the administration. In private, Stone was vituperative; writing to a longtime friend, he said:

  Jackson is away conducting his high-grade lynching party in Nuremberg. . . . I don’t mind what he does to the Nazis, but I hate to see the pretense that he is running a court and proceeding according to common law. This is a little too sanctimonious a fraud to meet my old-fashioned ideas.11

  Stone’s biographer, Altheus T. Mason, sums up Stone’s more considered view this way:

  For Stone, Justice Jackson’s participation in the Nuremberg Trials combined three major sources of irritation: this approval in principle of non-judicial work, strong objection to the trials on legal and political grounds, the inconvenience and increased burden of work entailed. Even if the Chief Justice had wholly approved the trials themselves, he would have disapproved Jackson’s role in them. If he had felt differently about the task in which Jackson was engaged, he might have been somewhat less annoyed by his colleague’s absence.12

  Stone’s criticism of Jackson’s taking the job of prosecutor has considerable justification. Jackson had been gone for one entire term of the Court, and his colleagues had to take up the slack by dividing up what would have been his share of the opinions. In any case in which the eight justices were equally divided, the Court had two alternatives, neither of which was attractive. It could simply hand down a one-sentence order announcing that the decision of the lower court was affirmed by an equally divided vote, an order which by custom says nothing about the governing law. The same issue, which presumably the Court thought important enough to review, would have to await decision until another case in which all nine members of the Court were present. The other alternative was to simply set the case down for reargument when the ninth justice returned.

  It is difficult not to sympathize with both Jackson’s and Stone’s views. Jackson, speaking to the New York State Bar Association in 1947, said that his Nuremberg role “was the supremely interesting and important work of my life and an experience which would be unique in the life of any lawyer.”13 One of Stone’s complaints was that he first learned of Jackson’s acceptance as prosecutor when it was announced by President Truman. One would think that Jackson would have at least consulted Stone before taking the job; not that Stone had any authority to forbid his taking it, but that advance notice would make it more palatable to Stone.

  IN THE PRESIDENTIAL ELECTION of 1952, Republican candidate Dwight D. Eisenhower defeated Adlai Stevenson, the Democratic candidate, ending twenty years of drought for his party. The next year Fred M. Vinson, who succeeded Harlan Stone as Chief Justice, died, and Eisenhower appointed Earl Warren of California to succeed him.

  Warren grew up in Bakersfield, California, and after graduating from law school at the University of California became the prosecuting attorney in Oakland. From that post, he was first elected attorney general of the state and then three times Governor of California. Warren had little experience as a practicing lawyer, and he came to the Court at a very difficult time. It was to hear the school desegregation case, Brown v. Board of Education, argued for the second time. The Court had been sharply divided after the first argument, but Warren throughout the term persuaded initially reluctant colleagues to make his opinion for the Court in the case unanimous. It held that legally enforced racial segregation in public schools violated the Equal Protection Clause of the United States Constitution.

  In 1960, Democratic presidential candidate John F. Kennedy narrowly defeated Republican candidate Richard Nixon. Kennedy was the first Roman Catholic and the second-youngest person to occupy the nation’s highest office. He and his attractive wife brought a sense of youth and élan to Washington. The nation was stunned when on November 22, 1963, he was assassinated while riding in a motorcade in Dallas. Lee Harvey Oswald was arrested the same day and charged with the crime. Grief turned to amazement when Oswald, being televised in the custody of the Dallas police, was shot and killed by a local bar owner named Jack Ruby. Rumors of all sorts began to fly.

  A week after the assassination, Chief Justice Warren was contacted by the deputy attorney general and the solicitor general to inquire if he would serve as chairman of a bipartisan commission that the new President, Lyndon B. Johnson, would create to investigate the assassination. Warren tells of his initial response in his Memoirs:

  I told them I thought the President was wise in having such a commission, but that I was not available for service on it. Because of past experiences of that kind in the history of the Court, we had discussed the propriety of taking on extrajudicial appointments and, although we had never voted on it, I was sure that every member of the Court was of the opinion that such appointments were not in its best interests. I told Katzenbach and Cox that I had more than once expressed myself to that effect for several reasons. First, it is not in the spirit of constitutional separation of powers to have a member of the Supreme Court serve on a presidential commission; second, it would distract a Justice from the work of the Court, which had a heavy docket; and, third, it was impossible to foresee what litigation such a commission might spawn, with resulting disqualification of the Justice from sitting in such cases.14

  Later the same day, Warren was summoned to the White House to have his arm twisted by Johnson. The President was successful. He said to the Chief Justice:

  “You were a soldier in World War I, but there was nothing you could do in that uniform comparable to what you can do for your country in this hour of trouble.” He then told me how serious were the rumors floating around the world. The gravity of the situation was such that it might lead us into war, he said, and, if so, it might be a nuclear war. . . . I then said, “Mr. President, if the situation is that serious, my personal views do not count. I will do it.”15

  The Warren Commission included a bipartisan group of well-known current or former public officials. The following September, the Commission produced an 888-page summary of its findings known as “the Warren Report.” The Commission concluded that Oswald acted alone in killing the President and that Ruby acted alone in killing Oswald.

  Although the Warren Report was supported by twenty-six volumes of evidence and testimony, from almost the moment it was issued it came under wide criticism from
a variety of sources. Hundreds of books and articles have attempted to prove that the Warren Commission got it wrong and that President Kennedy’s assassination was the result of a conspiracy. The alleged participants in the conspiracy range from the CIA and the FBI to anti-Castro Cuban groups to the Mafia. The 1991 movie JFK, loosely based upon New Orleans District Attorney Jim Garrison’s prosecution of Clay Shaw for conspiracy, promoted the theory that Shaw, who was a respected New Orleans businessman, David Ferrie, an airplane charter pilot, and Oswald were part of a conspiracy orchestrated by the military and the CIA.

  The Warren Commission concluded that Kennedy was struck by two bullets, both fired from above and behind the President. This conclusion was based in large part on the testimony of the doctors who treated him in Dallas and the doctors who performed the autopsy at the Bethesda Naval Medical Center. The Commission did not consider the autopsy X-rays and photographs (although Warren himself reviewed the photographs) because they planned to make all of the evidence reviewed by the Commission public and did not want to release gruesome photographs of the President. Much criticism of the Warren Commission was generated by its failure to use the photographs and X-rays to evaluate the testimony of the doctors. This failure was seen as either a purposeful cover-up or shoddy investigation. And the secrecy surrounding the autopsy photographs and X-rays fueled conspiracy theorists, with allegations of doctored photographs and X-rays still being made today.