Presidents as Supreme Court Advocates: Before and After the White House

Abstract

Presidents as Supreme Court Advocates: Before and After the White House ALLEN SHARP Prologue Eight men who took the presidential oath also appeared before the Supreme Court of the United States as advocates. From SenatorJohn Quincy Adams at the outset ofthe Marshall Court to Richard M. Nixon during the high-water mark ofthe Warren Court, future and past Presidents have argued before the Supreme Court on suchvaried and important topics as land scandals in the South, slavery at home and on the high seas, the authority ofmilitary commissions over civilians during the Civil War, international disputes as an aftermath of the Alaskan Purchase, and the sensitive intersection between the right to personal privacy and a free press. Here, briefly, are stories of men history knows as Presidents performing as appellate lawyers and oral advocates before the nation’s highest court. John Quincy Adams: Senator— Lawyer—Diplomat—Congressman As a young man, John Quincy Adams was ad­ mitted to practice law but grew bored with it and performed diplomatic chores for the Washington and Adams administrations in the 1790s. Judge John Davis of the U.S. district court in Massachusetts then named Adams Commissioner of Bankruptcy, making him a federal employee with a regular paycheck. The coming of the Jefferson administration ended that employment, with legislation removing job appointments from judges’ purview and placing them at the disposal of the President. So Adams was out of work except for a small law practice and a part-time teaching position at Harvard. He could now start a political ca­ reer ofhis own.1 Adams was elected to the U.S. Senate by the Massachusetts legislature in 1802, but the Senate did not convene until March4,1803. By the time he arrived at the Capitol, space had fi­ nally been found in that crowded building for PRESIDENTS AS SUPREME COURT ADVOCATES 117 the Supreme Court of the United States, and Adams became a regular spectator at its ses­ sions. The Courtroom was only a few steps from the Senate chamber, and Adams was inspired to be admitted to practice before the Supreme Court. Adams made his debut before the Supreme Court early in his Senate term. On February 23 and 24, 1804, Senator Adams argued before the Supreme Court in Church v. Huhbart? a case from the federal circuit court in Massachusetts involving a maritime insurance policy excluding coverage for il­ licit trade with the Portuguese in Brazil. De­ spite Adams’ best efforts, Chief Justice John Marshall remanded the case on a techni­ cal point for trial in order to authenti­ cate certain edicts of Portugal. Adams’ sea­ soned opponents in this case were Luther Martin and Richard Stockton. In the same 1804 term, Adams argued Head and Amory v. Providence Insurance Co.? a case from the federal circuit court in Rhode Island. His co-counsel was John T. Mason, a promi­ nent Jeffersonian lawyer from Maryland. Adams’ opponent, once again, was Martin, the great “Federalist Bulldog” from Maryland. On February 25, 1804, ChiefJustice Marshall ruled in favor of Head and Amory, Adams’ clients, and remanded for new trial. After ar­ guing his first two cases before the Supreme Court with mixed results, Adams wrote to a friend, “I have never witnessed a collection of such powerful legal oratory as at this session of the Supreme Court.”4 Later in life, Adams would say harsh things about President Jefferson,5 but during his single partial term in the Senate, he sup­ ported the President’s embargo and efforts to purchase Louisiana. Senator Adams’ pro-em­ bargo stance did not endear him to his fed­ eralist constituency and the Massachusetts legislature took the unusual act of, in effect, terminating his term before he had served its full six years. Adams’ Senate stint thus ended prematurely on June 8, 1808, by resig­ nation. Historian Allan Nevins described it as a “rebuke”: Senator John Quincy Adams (left) found himself opposing counsel to Luther Martin (right) in several cases he argued before the Supreme Court. Martin, known as the “Federalist Bulldog,” was a frequent advocate who had effectively represented Maryland at the Constitutional Convention in 1787. 118 JOURNAL OF SUPREME COURT HISTORY Adams’s term as Senator...