Replacing Souter

Within the next few months, Barrack Obama will get to exercise the greatest domestic power any president ever has—the power to nominate a Supreme Court Justice. The greatness of that particular presidential power is, of course, merely a reflection of the awesome power of the Court itself. The moment of nomination is the ONLY time any other governmental agency has any impact whatsoever on the court or how it rules.
Nine men, appointed for life, who cannot be overruled, vetoed or set aside by any other branch of the federal government. The only other people to have had that kind of political power were the absolute monarchs of ancient Egypt and Babylon—or Eighteenth Century France and Russia.
Justice David Souter, by his four or five line letter of resignation, has set the nomination process in motion again. First, the President will nominate and then the Democratic Senate will either confirm the nomination—or reject it, which will start the process all over again.
Because the nomination and confirmation procedure is the ONLY moment when either Congress or the President can have any impact on the court or its future decisions, it will be taken very, very seriously by Republicans, Democrats, Senators and President. Because the stakes are so very high, it will probably be an acrimonious moment in our history. It often is.
How did nine justices get so much unchallenged power? It certainly wasn’t always this way. When the country started out in the 1790s, the court had so little respect that it was hard to find someone to sit. Those who did tended to resign after a few years and go do something useful. We had four Chief Justices in ten years.
John Adams, in one of his last acts as president, changed that forever. He got a fellow Federalist, John Marshall, approved as Chief Justice. The Federalists never held the Presidency again; they were cooked after 1812. But they had an enormous impact on the nation until John Marshall died in 1835, after 34 years on the bench.
(This alone, proves that the Supreme Court was, is and will continue to be fully as political a branch of government as Congress, the White House or a Chicago ward boss. If anyone ever tries to tell you otherwise, laugh.)
How did they get this power? It all started during the last 24 hours of the Adam’s presidency, during the night of March 3 and 4, 1801. Adams sat up all through the night madly scribbling appointments for Federalist Party federal judges.
At noon, on the 4th, Jefferson—a Democratic Republican—was president. He wasn’t happy at the prospect of an entire batch of judges from the opposition. The law at the time required that a judicial nomination be confirmed by the Secretary of State. Now there was a new Sec. State. He, James Madison, dumped all of Adam’s nominations in the round file.
One sore head sued. A fellow named William Marbury, who had been appointed Justice of the Peace in the District of Columbia, wanted his job—and he sued Madison to make him confirm it. The case wound its way through the federal courts until it reached Marshall’s bench in 1804. This gave Marshall a dilemma.
He really wanted to see fellow Federalist, Marbury, confirmed. He was also fully aware that the court had so little respect that Jefferson would probably have ignored him if he had demanded it. This might well have been a fatal blow to the court itself.
So Marshall wrote a very, very clever opinion. In brief: The court agrees that Mr. Marbury is fully entitled to be Justice of the Peace. Alas, the court has no power to satisfy his plea BECAUSE doing so would require the court to issue a “Writ of Mandamus”.
(If you are a parent you issue such writs several times a day: You will wash the dishes, you will go to bed on time, you will eat your beans, and so forth. They are demands that someone somewhere DO some specific act.)
And, added Marshall, for the court to issue a “Writ of Mandamus” would be UNCONSTITUTIONAL. Jefferson won, Marshall saved the court from humiliation. What no one noticed was that the original Judiciary Act of 1789—which created the Supreme Court—had EXPRESSLY AUTHORIZED the Supreme Court to issue such writs.
Marshall had asserted the right of the high court to declare any and all acts of Congress to be unconstitutional! Completely under the radar. This, very possibly, was the most important decision ever issued by the court. It established it as a political power with teeth.
It wasn’t totally smooth sailing from then on. As late as Andrew Jackson (1828-1836), a president could get away with sneering, “John Marshall has made his law; let him enforce it.” Jackson tended to shoot people who disagreed with him—so he got away with that.
But even Jackson recognized the new and irresistible power of the Supreme Court. To replace Marshall, he nominated Roger B.Taney as Chief Justice, a slave owning southerner, who spent twenty-eight years further expanding the power of the court—and became an articulate defender of slavery.
(Taney’s decisions—especially Dred Scott, where he wrote that Negroes had no rights the United States was bound to respect—are perhaps the last Supreme Court decisions to be overruled by an outside agency. It took an army and four horrific years of Civil War.)
From Appomattox on, only the court has dared overrule a previous decision of the court. FDR tried to pack the court (up to six more justices who would vote his way) in 1937. He failed on the issue—very much because nine smart, mostly Republican politicians on the bench began ruling in his favor. (Called by historians “The switch in time that saved nine”.)
Even absolute monarchs have to listen once in awhile. But Mr. Obama will soon begin the process that is the only sure way to influence the court. It should be interesting to watch.