Ex-Justice Campbell: The Case of the Creative Advocate

Abstract

Ex-Justice Campbell: The Case of the Creative Advocate JONATHAN LURIE It can be argued that so-called appellatejudicial distinction sometimes results from a Justice basking in the positive reaction to a decision that may be based in part—or even in totality—on arguments raised by counsel. Ifthis is true, who, then, is the distinguished figure? The successful advocate is one who can persuade an appellate court as to the soundness of the position he or she takes. The Justice gets the credit, while the attorney gets the fee. But is there more to being a great advocate besides winning cases? This article examines aspects ofJohn Campbell’s career, in what may be called “the case of the creative advocate.” It will focus in particular on the greatest case he ever argued, the Slaughterhouse Cases,1 and will draw on the recent book I coauthored with Ronald Labbe.2 At the outset, it should be noted that John Campbell is one of the more unique jurists to serve on the Supreme Court. This is not due, however, to the fact that he resigned from the Court and laterreturnedto practice before it. A number of other Supreme Court Justices have taken such a step, and two may be mentioned here. Benjamin Curtis served with Campbell and, after his resignation, also went on to ar­ gue a great many cases before his old tribunal. Curtis, it might be noted, had been one of AndrewJohnson’s lawyers during his impeach­ ment trial, and later declined an appointment from this beleaguered chief executive to be his Attorney General. Closer to our own era, Abe Fortas immediately comes to mind.3 But John Campbell has four additional claims to uniqueness. In the first place, Cambell is the only Justice ever to resign because his state se­ ceded, although in 1861 the Court was heav­ ily Southern in judicial background as well as viewpoint. No other Justice followed suit, their Southern sympathies not withstanding. Further, Campbell is the only ex-Justice ever to be imprisoned by federal authorities for several months, and ultimately pardoned by a Chief Executive (in this case, Andrew Johnson). Also, he appears to be the only Jus­ tice to have attended West Point, even though he did not graduate. It is not the function of historians to speculate on “what-if’ types of 18 JOURNAL OF SUPREME COURT HISTORY questions, but one can only wonder what might have happened had Campbell followed a mili­ tary careerratherthan one in the law. Finally, he is apparently the only lawyer to have been ap­ pointed to the Court at the unanimous request of all the sitting Justices.4 Of course, from time to time many individual Justices have con­ ferred with the Chief Executive about a possi­ ble appointment, but for the entire Bench to join in a written request that one individual be selected is indeed unusual. Campbell’s nomination must be seen in the context of the futility and fiasco concern­ ing President Millard Fillmore’s three failed appointments. The second Vice President to succeed to high office because of an incum­ bent’s death, Fillmore had a difficult time deal­ ing with Congress, particularly the Senate. One of his Supreme Court nominations went to Senator Judah Benjamin, who declined. Benjamin later resigned from the Senate when his state, Louisiana, seceded. During the Civil MILLARD FILLMORE The last Whig to be President, Millard Fillmore had such a difficult relationship with the Democratcontrolled Senate that all three of the candidates he proposed to fill Justice John McKinley's seat were rejected. War, he filled several positions within Jefferson Davis’s Confederate Cabinet. When the Confederacy collapsed, he managed to flee to England, where he mastered British com­ mon law and became a distinguished barris­ ter. Another of Fillmore’s nominations failed to receive even Senate consideration, let alone a vote. The judicial seat was still open when Franklin Pierce took office in March 1853. One of the most consistent of the Northern dough­ faces to occupy the Presidency, Pierce readily acquiesced in the Court’s “request”—and the forty-one-year-old Campbell took his seat. He had received unanimous Senate confirmation. Campbell...