The people made the Constitution, and the people can unmake it. It is the creature of their own will, and lives only by their will.
—John Marshall (September 24, 1755 – July 6, 1835)
Wrangling for Justices of the Supreme Court
That was then (January 31, 1801 – July 6, 1835)
On January 31, 1801 John Marshall was nominated to be Chief Justice of the United States by President John Adams (1735–1826), who served as President from March 4, 1797 until March 4, 1801. Adams had lost the bitterly contested 1800 election to Thomas Jefferson. Not only had Adams lost his bid to be re-elected to second term as President, but his Federalist Party had been soundly defeated in the Congress. Adams knew that Jefferson’s Democratic Republican Party would reverse many of the policies the Federalists had enacted. In its final days in power, the Federalist Congress passed the Judiciary Act of 1801, which reduced the number of Supreme Court Justices from six of five, this change to become effective upon the next vacancy to occur. In other words, the next vacancy would not be filled. The strategy was to deny Jefferson the ability to appoint a new judge to the Supreme Court until two vacancies took place. The act also created new circuit courts. In his last nineteen days in office Adams nominated sixteen circuit court judges, all quickly approved by the Congress. All of these offices were abolished when the Judiciary Act of 1801 was repealed by the Democratic Republican Congress on July 1, 1802, and most of the judges that Adams had appointed therefore lost their positions.
Although the attempts of the outgoing second President of the United States to hobble the incoming third President ultimately failed, the appointment of Chief Justice John Marshall endured. He served as Chief Justice during the last month of Adams’s presidency and continued to serve as Chief Justice during the presidencies of Thomas Jefferson, James Madison, James Monroe, John Quincy Adams and Andrew Jackson, making him the longest-serving Chief Justice in the history of the United States. During his tenure as Chief Justice, the judicial branch of government gained considerable influence and truly became a third branch of government on an equal footing with the executive and legislative branches. Sitting on the bench at a time when the fledgeling nation was still trying to work out the balance of power between the individual States and the central government—a difficult and complex process that continues to this day—Chief Justice Marshall’s tendency was to favor the power of the central Federal government over the sovereignty of the individual States. He wrote:
No trace is to be found in the Constitution of an intention to create a dependence of the Government of the Union on those of the States, for the execution of the great powers assigned to it. Its means are adequate to its ends, and on those means alone was it expected to rely for the accomplishment of its ends.
February 5, 1937
The number of Justices on the United States Supreme Court is not specified in the Constitution of the United States. As was noted above, during the first two presidencies, there were six justices on the Supreme Court. After the Federalists had lost both the presidential and congressional elections of 1800 but before their successors could be sworn into office, they passed legislation reducing the number of justices to five so that if one of the sitting justices were to leave the bench at some point in the future, no replacement would be appointed. That legislation was overturned a year later, so there never was a time when the number of justices fell below six. Since 1869 there have been nine justices, one Chief Justice and eight Associate Justices. That tradition was challenged when President Franklin Delano Roosevelt announced on February 5, 1937 a plan to expand the number of justices on the Supreme Court to fifteen. During the two years before that, the Supreme Court had struck down several pieces of legislation that were part of Roosevelt’s New Deal. Having just won re-election by a landslide victory in 1936, Roosevelt proposed giving all Supreme Court justices over the age of 70 the option to retire with a full salary. If a justice over the age of 70 were to refuse the offer, then the plan stipulated that the elder justice would be given an assistant who would have full voting rights on every decision coming before the Court. Not only did most Republicans oppose the scheme, but many Democrats in Congress saw this plan as an illegitimate attempt to stack the court in favor of the executive branch, a move that could set a dangerous precedent. In July 1937 the United States Senate voted against Roosevelt’s reorganization proposal by a vote of 70 to 22. As it turned out, two justices on the Supreme Court unexpectedly switched to the liberal side in two key cases that had come to the Court, one case contesting the National Labor Relations Act and the other a case contesting the Social Security Act. Even without restructuring the Supreme Court, during his twelve years in office, President Franklin D. Roosevelt appointed eight new justices (Associate Justices Hugo Black, Stanley F. Reed, Felix Frankfurter, William O. Douglas, Frank Murphy, James F. Byrnes, Robert H. Jackson, and Wiley Blount Rutledge) and promoted one Associate Justice, Harlan Fiske Stone, to Chief Justice. Associate Justice William O. Douglas, who was sworn in on April 15, 1939, served until his retirement on November 12, 1975. He had served under Presidents Franklin Roosevelt, Truman, Eisenhower, Kennedy, Johnson, Nixon and Ford and holds the record for both the longest tenure of any Supreme Court Justice and the most decisions of anyone who has served on the Court. A staunch environmentalist who served on the Board of Directors of the Sierra Club, Associate Justice Douglas also strongly opposed the war in Vietnam and thus earned a reputation as one of the most liberal justices in the history of the Supreme Court. In a dissenting opinion he wrote in the case Sierra Club v. Morton, 405 U.S. 727 (1972)
Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes. The corporation sole—a creature of ecclesiastical law—is an acceptable adversary and large fortunes ride on its cases …. So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes—fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it.
This is now (2016–17)
As the final days of President John Adams’s first and only term in office shows, Presidents who care about preserving their legacies may use nominations to the Supreme Court or to lower federal courts to achieve that end. Adams, one of the Founding Fathers of the United States, set a precedent of rather aggressive manipulation of the Judicial branch after he had been defeated in his bid for re-election. Although few Presidents have been quite so bold as Adams, most Presidents since 1800 have at the very least exercised their Constitutional duty to nominate Supreme Court justices in ways designed to increase the odds that their legacies will stand up in future Supreme Court contests.
President Barack Obama nominated two women to the Supreme Court, Associate Justices Sonia Sotomayo in 2009 and Elena Kagan in 2010, both of whom were confirmed by substantial margins in the United States Senate. On March 16, 2016, he nominated Merrick Garland to fill the vacancy left by the death of Associate Justice Antonin Scalia. The Republican-dominated Senate, however, did not give Judge Garland so much as a hearing and pledged not to hold a vote on Judge Garland or any other nomination to Supreme Court that President Obama might make during an election year. If Presidents can use machinations to tilt the Supreme Court in their favor, so can the United States Senate.
What remains to be seen is whether the newly inaugurated 45th President and the Republican-controlled Congress will strive to nominate and confirm a Supreme Court Justice that holds to the standard of impartiality articulated by John Marshall in Osborn v. Bank of the United States in 1824:
Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the Court to follow it. Judicial power is never exericised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law.