The Judicial Bookshelf

Abstract

The Judicial Bookshelf DONALD GRIER STEPHENSON JR. Along with other horrific events, the year 2020 will remain haunting because of the covid-19 scourge with its widespread, upending, and enduring hardships and effects that, in reaching the Supreme Court, closed the building, caused the justices to announce decisions and opinions digitally, and in May for the first time necessitated oral arguments via tele-conferencing with real-time public audio streaming. Wholly unrelated to the virus, the nation had already witnessed an event akin to only three previous occasions in American history: the trial in the Sen­ ate chamber of a president of the United States following impeachment by the House of Representatives.1 The development called for application of one of the Constitution’s unequivocal provisions: “When the President ofthe United States is tried, the Chief Justice shall preside.”2 The single reference in the Constitution to the chief justice in the context of an impeachment trial offers a hint that while most of the Framers from the outset of the Convention of 1787 assumed the need for a national judiciary to correct what Alexander Hamilton in Federalist No. 12 described as a “circumstance which crowns the defects of the Confederation,” the document they crafted speaks only sparingly about the fed­ eral judiciary. As one finds in Articles I, II, and III, the words “supreme court” occur six times, “justice,” apart from “Chief Justice,” appears not once, and the word “judges” only three. Throughout their deliberations members of the convention seem nonetheless to have given some thought to the role a supreme judicial figure might play in the new political system. Even though neither the Virginia nor New Jersey plans—the two principal competing models introduced at the convention—specifically mentioned a chief justice, the former’s council of revision was to possess authority to invalidate state and national laws. That the council’s member­ ship included members of the national judi­ ciary suggested participation by a presiding judge.3 Furthermore, Connecticut delegate Oliver Ellsworth, who would have a large hand in drafting the Judiciary Act of 1789 and became the third chiefjustice, proposed that the new government contain a council consisting of department heads to assist the president, with the chiefjustice as a member. JUDICIAL BOOKSHELF 329 This, however, was an idea Elbridge Gerry opposed, believing that “[t]hese men will also be so taken up with other matters as to neglect their own proper duties.”4 The suggestion for what would be called a council of state reappeared in proposals by Pennsylvania’s Gouverneur Morris and South Carolina’s Charles Pinckney, with the chiefjustice being charged with recommending such alterations of and additions to the laws of the U.S. as may in his opinion be necessary to the due administration of Justice and such as may promote useful learning and inculcate sound morality throughout the Union.5 In their view, the chiefjustice would be the presiding officer of the council in the absence of the president. Yet their proposal failed to gain traction, thus eliminating what would have been a blending of the judicial with the executive function. Then some thir­ teen days before the convention adjourned, the Committee on Postponed Matters urged that the chief justice replace the vice presi­ dent (already designated as president of the Senate) in a situation where the president had been impeached and was on trial.6 After the title “chiefjustice” survived the final vote at the convention, the actual existence of the office awaited the discretion of Congress. Congress acted on September 24, 1789, declaring that “the supreme court of the United States shall consist of a chiefjustice and five associate justices,”7 and thereby shifting the initiative to the president who made his initial judicial nominations on the same day. Filling the Bench was a respon­ sibility George Washington took seriously, as he indicated three days later to Edmund Randolph,8 the first attorney general: “Im­ pressed with a conviction that the true ad­ ministration of justice is the firmest pillar of good government, I have considered the first arrangement of the judicial department as essential to the happiness of our country and the stability of its political system...