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Five Chiefs

Little, Brown and Company

I

The First Twelve Chiefs

ARTICLE III OF THE Constitution provides that the judicial power of the United States shall be vested in one Supreme Court and in such “inferior” courts as Congress shall from time to time ordain and establish. In 1789 Congress enacted the first Judiciary Act, which formally created a Supreme Court, composed of six judges, and a network of inferior courts. George Washington appointed all of the members of the Court who served during his two terms as president. Though the office of the chief justice has come to be perhaps the most exclusive of federal posts—only fourteen have been appointed since Washington left office, while forty-three chief executives have followed his tenure—Washington had the opportunity to appoint this nation’s first three chief justices—John Jay, John Rutledge, and Oliver Ellsworth.

John Jay, who served from 1789 to 1795, was one of the authors of the Federalist Papers—the pamphlets that advocated ratification of the Constitution when they were written and that still provide guidance to judges interpreting that fundamental document today. Under Jay’s leadership the Court rejected a request made by President Washington that it provide the executive branch with advisory opinions about the meanings of treaties, the laws of nations, and federal rules of law. In the Court’s view, the Constitution drew lines separating the three departments of government, and that argued against having judges of the national court of last resort give advice to the executive. Jay’s determination that advisory opinions would exceed the limits of the power to decide “cases and controversies” conferred on federal judges by Article III of the Constitution has been steadfastly followed throughout our history.

The most important case decided during Jay’s tenure as chief was Chisholm v. Georgia (1793). The transaction that gave rise to the litigation occurred during the Revolutionary War: Georgia’s purchase in 1777 of over $169,000 worth of supplies for troops quartered near Savannah. The South Carolina merchant who made the sale died before collecting the purchase price, but his executor—a man named Chisholm—filed suit against the State of Georgia to collect the debt. The question presented to the Supreme Court was whether a federal court had jurisdiction over a suit brought by a South Carolina resident against the sovereign State of Georgia.

By a vote of four to one, the five sitting justices concluded that the state was subject to suit in a federal forum. Each member of the Court wrote a separate opinion explaining his views. The majority necessarily held that jurisdiction had not only been conferred by Congress in the Judiciary Act but also was consistent with the provision in Article III extending federal judicial power to controversies “between a State and Citizens of another State.” They rejected the argument that the English common-law doctrine of sovereign immunity provided the state with a defense to Chisholm’s claim.

Justice James Iredell dissented. While he did not question Congress’s power to change the common-law rule that prevented private citizens from suing unconsenting sovereigns, he did not believe that Congress had done so by enacting the Judiciary Act. Chief Justice Jay, however, addressed the more basic question—whether the common-law rule should exist in our newly formed government. In his opinion, he explained that in the democratic United States, there was no place for sovereign immunity. The doctrine was rooted in the feudal idea that the prince is the sovereign and that the people are merely his subjects. But in America, the people are sovereign. Unlike English subjects, “the citizens of America are equal as fellow citizens and as joint tenants in the sovereignty.”

The Chisholm decision was not welcomed by states saddled with debts and threatened with insolvency. On February 20, 1793, two days after the Court decided the case, Massachusetts congressman Theodore Sedgwick proposed an amendment to the Constitution that would have deprived all federal courts of jurisdiction over any suit in which a state was named as a defendant. Instead of acting on that proposal, critics of Chisholm drafted, and two years later obtained ratification of, the Eleventh Amendment. That amendment eliminated the out-of-state residence of the plaintiff as a basis for federal jurisdiction in an action against a state, but it actually said nothing about the common-law doctrine of sovereign immunity. Nor did its text prohibit (or indeed even mention) suits brought against a state by its own citizens to enforce rights created by federal law. Nevertheless, as I shall explain in my chapter about Chief Justice Rehnquist, in later years it would provide the states with immunities that would have surprised John Jay.

In 1795, which happened to be the year the Eleventh Amendment was ratified, John Jay resigned his position as chief justice to become governor of New York. President Washington nominated John Rutledge of South Carolina to replace him. While Rutledge had been a respected delegate to the Constitutional Convention in 1787, his career on the federal bench is noteworthy for its brevity.

In 1789, Rutledge had been one of Washington’s first appointees to the Supreme Court. Although that appointment was confirmed by the Senate—as the Constitution requires for all Article III judges—Rutledge did not decide a case as a federal judge at that time because before he could do so, he chose instead to accept the position of chief justice of the South Carolina Supreme Court. When Jay resigned, in the summer of 1795, Washington named Rutledge to replace him by means of a recess appointment—a temporary appointment during which the appointee may serve in office without Senate approval. An unpopular speech, in which Rutledge criticized a treaty that John Jay had negotiated, plus concerns about his mental health persuaded the Senate to reject his nomination. History treats him as the second chief justice—and his portrait that hangs in the Court today assumes that he is entitled to that designation—but, as I shall explain in my chapter about Earl Warren, I am not persuaded that the president has the authority to confer judicial power on a nominee who has not been confirmed by the Senate. No more need be said about his tenure.

Oliver Ellsworth of Connecticut then became our third chief justice. He served from 1796 until his resignation took effect, on December 15, 1800. He had previously been both a delegate to the Constitutional Convention, where he made speeches favoring the abolition of slavery, and a United States senator. Perhaps his most notable contribution as chief justice was his initiation of the practice of having one justice write a single opinion explaining the Court’s decision, replacing the custom followed in Chisholm, in which each of the justices expressed his individual views in a separate statement. Ever since, the Court has followed Ellsworth’s practice whenever a majority can agree on the proper disposition of a case.

In 1775, before the Declaration of Independence was signed, nineteen-year-old John Marshall joined a group of Virginia militiamen that was called into action by Colonel Patrick Henry, commander of Virginia’s provisional army, and engaged in combat with British troops. He served as an officer under George Washington at Valley Forge during the bitter winter of 1777–1778. His martial accomplishments were followed by distinguished work in the private practice of law, as a member of the Virginia convention that voted to ratify the Constitution, as a United States congressman from Virginia, and as a diplomat. While those credentials clearly qualified him to become our fourth chief justice, it was his work once in that office that made him our Court’s greatest leader.

Appointed by John Adams in 1801, Marshall served until 1835. Decades after Marshall’s death, Oliver Wendell Holmes—another universally lauded jurist and veteran of another foundational American war, that between the states—had this to say about Marshall: “If American law were to be represented by a single figure, skeptic and worshipper alike would agree without dispute that the figure could be one alone, and that one, John Marshall.”

The quantity of Marshall’s judicial output is impressive: he participated in over one thousand cases and authored more than five hundred Court opinions. But it is the quality of his work that commanded the admiration of his peers and successors. Most famous are his opinions in Marbury v. Madison (1803), McCulloch v. Maryland (1819), and Gibbons v. Ogden (1824).

Marbury was the first case in which the Court held an act of Congress to be unconstitutional. William Marbury had been named a justice of the peace in the final days of John Adams’s presidency, his appointment had been confirmed by the Senate, and the secretary of state (who, not insignificantly, happened to be John Marshall—a fact that would have disqualified Marshall from participating in the case under today’s recusal standards) had signed his commission—but had not delivered it—before Thomas Jefferson took office as the third president of the United States. When James Madison, the new secretary of state, refused to deliver the commission, Marbury filed a lawsuit in the United States Supreme Court invoking the Court’s original jurisdiction and asking it to issue a writ of mandamus commanding Madison to do so. (Mandamus is an extraordinary writ that judges may use to order a defendant to perform a clear public duty when no other remedy is available.)

More than a year elapsed before Chief Justice Marshall announced his opinion for a unanimous Court. He concluded that Marbury had a right to receive his commission, and that the Judiciary Act enacted by Congress intended to give the Supreme Court the authority to issue a writ of mandamus commanding Madison to deliver it. But then, in what might be described as a surprise ending, he concluded that the statute authorizing the Court to issue the writ was unconstitutional. The case is famous primarily for establishing the Court’s authority to declare an act of Congress unconstitutional. For me, the case has always been puzzling because I have never found satisfying Marshall’s explication of why the statute was unconstitutional.

He quite correctly identified a distinction of constitutional magnitude between cases, like Marbury’s, that invoke the Court’s original jurisdiction—that is, its jurisdiction to hear cases filed for the first time in the Supreme Court—and those invoking its appellate jurisdiction to review cases that had first been filed in a lower court. Unless Marbury’s suit properly invoked the Court’s original jurisdiction, the Court could not provide him with a remedy. While Article III of the Constitution authorizes original Supreme Court jurisdiction over any action against “public Ministers,” Marshall might reasonably have construed that phrase to refer only to foreign ministers and not to the American secretary of state. But instead of holding that the Court could not grant relief against Madison for that reason, Marshall stated that the Court could not issue a mandamus in Marbury’s case unless doing so could be characterized as an exercise of the Court’s appellate jurisdiction.

I have never understood why that premise led him to the conclusion that the statute that Congress had enacted was unconstitutional. Why would the statute not have been perfectly valid in cases in which the Court properly had original jurisdiction, such as a suit by a foreign ambassador seeking relief against the secretary of state? I suppose I should have figured out the answer to this puzzlement during my many sessions in Nat’s mystery hour.

There is nothing mysterious about Marshall’s opinions in McCulloch and Gibbons. In McCulloch, the Court upheld the power of Congress to establish a national bank and invalidated an attempt by the State of Maryland to tax the business of the bank. The first holding rested on an interpretation of the last paragraph of Article I, Section 8 of the Constitution, which provides that in addition to the specific powers enumerated in that section, Congress may “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” Prior to the Constitution, Marshall recalled, the states had been bound together solely by the Articles of Confederation, which extended only limited powers to the Continental Congress that then served as the national legislature. By contrast, Marshall famously wrote, the Constitution provided the federal government with much broader powers: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” The second conclusion—that Maryland could not tax the operations of the national bank—rested on what Marshall characterized as the “great principle” that “the constitution and laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective States, and cannot be controlled by them.” Because a state tax had the power to destroy a federal institution—in that case, the bank of the United States—the state tax had to give way.

The principle of federal supremacy also animated the Gibbons case. After receiving a federal license to engage in coastal trade, Thomas Gibbons sought to operate a steamboat service in the waters between Elizabethtown, New Jersey, and New York City. In an attempt to enforce monopoly privileges that the state had granted to Aaron Ogden, a New York court enjoined Gibbons’s activities. In his opinion for the Court, Marshall held that Gibbons’s federal license entitled him to an exemption from the New York laws. The opinion played an important role in the later development of rules that protect interstate commerce from burdens imposed by state laws even when Congress has not enacted any federal laws dealing specifically with the matter. (Cases that invalidate state laws that discriminate against out-of-state firms and thereby impede interstate commerce are often described as resting upon the “dormant” aspect of the commerce clause.)

While not as well known as Marbury, McCulloch, and Gibbons, Marshall’s opinion in Barron ex rel. Tiernan v. Mayor of Baltimore (1833) merits mention because it provided the answer to an important question about the original meaning of the first eight amendments to the Constitution, commonly described as the Bill of Rights. Marshall held that those amendments limit the powers of the federal government but place no limitations on the powers of the state governments.

Under that view, the Second Amendment’s protection of the right to keep and bear arms would prohibit Congress from interfering with a state’s regulation of its own militia but would allow the states complete freedom to regulate the possession and use of weapons. As a result, prior to the adoption of the Fourteenth Amendment, after the Civil War, individual citizens had to rely entirely on their own state constitutions as the sole source of protection against arbitrary state action.

Our fifth chief justice, Roger Taney, was appointed to that office by President Andrew Jackson in 1836 and served until his death, in 1864. He was the author of the majority opinion in the Dred Scott case—Dred Scott v. Sandford (1857)—which held that a slave did not become free when taken into a free state, that Congress could not bar slavery in a territory, and that African Americans could not be citizens of the United States or—for constitutional purposes—of their own states. The only good thing that can be said about that case is that Abraham Lincoln’s criticism of it in his famous debates with Stephen Douglas received nationwide attention and helped get him elected president of the United States.

In 1864, President Lincoln selected Salmon P. Chase, a former rival in the 1860 presidential election and later Lincoln’s secretary of the treasury, to become the sixth “Chief Justice of the Supreme Court of the United States.” Perhaps motivated by the hope that he would one day be elected president, Chase assumed the more imposing title of “Chief Justice of the United States,” a title that Congress began to use in subsequent legislation and that has been used by all of Chase’s successors.

Like his immediate predecessor, Chase may be best known for his involvement in a dispute that arose out of the divisive legacy of slavery in the United States: He presided over the impeachment trial of President Andrew Johnson. In the wake of the Civil War and the assassination of President Lincoln, Johnson clashed repeatedly with the Republican majority in Congress, often over matters of race and Reconstruction. To protect the man Lincoln had appointed secretary of war (Edwin Stanton) from removal by Johnson, Congress passed the Tenure of Office Act, which required the president to obtain the consent of the Senate before making such a removal. When Johnson effectively defied Congress by removing Stanton without Senate consent, the House of Representatives impeached him, launching a Senate trial to determine whether he would be removed from office. There, Johnson contended that he had not technically violated the Tenure of Office Act because it protected officials only during the tenure of the president who appointed them. Once Lincoln died, Johnson argued, the act ceased to apply to Stanton. While Johnson failed to convince a majority of senators to take his side, his opponents could muster only thirty-five of the fifty-four available votes, one vote short of the “Concurrence of two thirds of the Members present” required for conviction by Article I, Section 3, paragraph 6 of the Constitution.

After Chase died, in 1873, President Ulysses Grant considered several potential successors, vacillated for six months, and finally nominated the successful Ohio lawyer Morrison Waite to become the seventh chief. Waite’s fourteen-year tenure is notable for two quite different reasons: It illustrates the heavy burden that work on the Court then entailed. And it encompasses decisions severely limiting federal protections for newly freed slaves that the framers of the Fourteenth Amendment had sought to provide.

While Waite was the chief, the Court decided 3,470 cases. Waite wrote 872 of the opinions disposing of those cases, a number that attests to the important role he played in efficiently discharging the Court’s responsibilities. He joined significant opinions written by colleagues construing the equal protection clause of the Fourteenth Amendment to prohibit the exclusion of African Americans from juries in criminal trials and protecting Chinese residents of San Francisco from discriminatory enforcement of an ordinance regulating laundries. But his own most significant opinion in the area—United States v. Cruikshank (1876)—can only be described as a disaster.

In the infamous Colfax massacre in Louisiana on Easter Sunday 1873, dozens of blacks were slaughtered by a band of white men, one of whom was William Cruikshank. Because state authorities did not punish the men for murder or any other state offense, the federal government indicted them for violating a statute enacted by Congress in 1870 that prohibited two or more persons from banding together to deprive their victims of rights protected by the federal Constitution. According to the indictment the defendants had intentionally deprived their victims of several federal rights, including the right to peaceable assembly protected by the First Amendment, the right to keep and bear arms protected by the Second Amendment, and the right to life and liberty protected by the Fourteenth Amendment. Cruikshank and two of his confederates were convicted in federal court, but the Supreme Court reversed. As Waite reasoned for the Court, the First and Second Amendment rights that the murderers had been convicted of violating merely limited the powers of the federal government, and the Fourteenth Amendment merely limited the powers of the states; none of the amendments prohibited the individual acts committed by the defendants. The unfortunate decision paved the way for continued racial violence and the enactment of state laws throughout the South that deprived blacks of full citizenship for decades.

Melville Fuller had been practicing law in Chicago for over thirty years when President Grover Cleveland selected him as our eighth chief. He initiated what I regard as an extremely important custom that all members of the Court still follow today. Before the beginning of an oral argument session, usually while donning his or her black robe, each justice greets every colleague with a handshake. That brief greeting confirms not only the personal friendships that all members of the Court share but also the more fundamental point that our common goals outweigh our individual differences.

I do not know how many other courts follow that practice, though I can attest that such handshakes are not unique to the Supreme Court. I still remember the warmth of the greeting that Luther Swygert and Roger Kiley, two federal circuit judges appointed by a Democratic president, extended to their new Republican colleague before I went on the bench at the Seventh Circuit Court of Appeals in the fall of 1970 to hear my first oral argument. Past political differences become entirely irrelevant when a federal judge goes to work.

While Fuller was the chief, Congress enacted the Judiciary Act of 1891, which led to a significant decrease in the workload of the Supreme Court. The statute created a new layer of intermediate appellate courts, known as circuit courts of appeals, that came to handle most of the appeals from decisions of federal trial courts. As an example, the statute authorized the Court of Appeals for the Seventh Circuit (where I served from 1970 to 1975) to hear appeals from each of the federal trial courts in Wisconsin, Illinois, and Indiana. As a consequence of that important change, many of the appeals that had previously gone directly to the Supreme Court were addressed first—and often only—by the circuit courts.

Though its workload was diminished, the Court continued to hear four important categories of cases. First, while the statute eliminated the losing parties’ right to take an appeal to the Supreme Court in many federal cases, it gave them the right to file petitions for certiorari, often referred to as “certs.” As a matter of settled practice, if four justices are persuaded that a particular case merits further review and vote to grant cert, the Court will hear the case. Over the course of the twentieth century, these cases came to dominate the Supreme Court’s docket. Second, there is a category of cases—today relatively small—in which Congress has given the losing party a right to a direct Supreme Court review of federal trial court decisions. This so-called mandatory jurisdiction of the Court has changed from time to time since 1891. Cases challenging the constitutionality of campaign finance laws are an example. The appellant in such a case files a document known as a jurisdictional statement. Third, the Court has always had jurisdiction to review certain state supreme court decisions denying a litigant’s claim that his federal rights have been violated. Fourth, the Court’s original jurisdiction as defined by Article III—which has been most frequently invoked in controversies between states over their boundaries or their rights in interstate waters—was not affected by the 1891 act.

Lochner v. New York (1905) was the most important case decided during Fuller’s tenure as chief, which lasted from 1888 until 1910. A majority of five justices held that a New York statute prohibiting the employment of bakers for more than ten hours a day or sixty hours a week was unconstitutional because it interfered with the liberty of the employer and his employees to contract with one another. The case is famous because there is virtually universal agreement among judges and scholars that it was incorrectly decided. More important, it is the case in which Justice Oliver Wendell Holmes wrote the most influential dissenting opinion in the Court’s history.

The case raised a basic question about the meaning of the word liberty as it is used in the due process clause of the Fourteenth Amendment, which declares that no state shall “deprive any person of life, liberty, or property, without due process of law.” In a ten-page dissent joined by Justices Edward White and William Day, the first Justice John Harlan (grandfather of the second Justice John Harlan, whom President Dwight Eisenhower would appoint) explained in some detail why the statute was a reasonable regulation of liberty. Justice Holmes’s solo dissent contained just two paragraphs.

In the first paragraph Holmes explained that “a constitution is not intended to embody a particular economic theory” and that the “accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.” The second paragraph focused on the meaning of the word liberty without mentioning the justifications for the New York statute that the other dissenters had discussed at length. He wrote: “I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.”

I grappled with the meaning of Holmes’s dissent in one of the first cases that I confronted as a court of appeals judge: Fitzgerald v. Porter Memorial Hospital (1975). The case involved a claim by married couples that a hospital policy barring fathers from being present during the delivery of their babies deprived them of a substantive right protected by the Fourteenth Amendment. Before studying the case, I had assumed that the due process clause protects only a right to fair procedures before a state could deprive a citizen of life, liberty, or property—that that had been the real point of Holmes’s Lochner dissent. But a more careful study convinced me that Holmes did believe the clause protects some substantive rights that judges must identify in particular cases. The case therefore required us to decide whether the word liberty in the Fourteenth Amendment encompassed the substantive right that the parents had asserted. My good friend and colleague Judge Robert Sprecher was persuaded that it did. While I wrote the majority opinion concluding that the hospital regulation did not violate the Constitution, I was also convinced that the word liberty does protect some substantive rights that judges must identify in specific cases.

Edward White was the first sitting justice to be elevated to higher office. A Civil War veteran who had fought in the Confederate army, he was appointed to the Court in 1894 by President Grover Cleveland and, after serving as an associate justice for sixteen years, named chief justice by President William Howard Taft in 1910. He served until his death in 1921 and was succeeded by the president who had appointed him chief.

Despite having fought on opposite sides in the Civil War, White and Justice Holmes reportedly became warm friends with great respect for each other while on the Court. In 1911, during White’s first year as chief justice, Holmes joined what have arguably become White’s two most famous opinions for the Court: Standard Oil Co. v. United States and United States v. American Tobacco Co. In them, the Court held that the combinations of former competitors in holding companies formed, respectively, by the Standard Oil Company and the American Tobacco Company violated the Sherman antitrust law. In reaching that result, White discussed at length the so-called rule of reason—the rule stating that only acts that unreasonably restrain trade violate federal antitrust laws.

As I explained in an opinion written shortly after I joined the Court, it was necessary to adopt such a rule because a literal reading of the text of the Sherman Act would have outlawed the entire body of private contract law. White’s opinions, coupled with an opinion by Charles Evans Hughes, a colleague of his who would later become the eleventh chief justice, broadly construed the commerce clause of the Constitution to authorize federal regulation of business activities that affect interstate commerce as well as activities that actually involve interstate transactions.

As was true of his predecessor, the most significant opinion announced during White’s tenure as chief was written by another justice. It was Justice Peckham who authored the Court’s opinion in Ex parte Young (1908), which rejected Minnesota’s sovereign immunity defense to a suit brought by a shareholder of a railroad claiming that newly enacted Minnesota statutes regulating railroad rates violated the federal Constitution. A federal district judge had entered an injunction against Young, the attorney general of Minnesota, forbidding him from enforcing the statutes. When the attorney general had nonetheless enforced the state law, the federal district judge had threatened to commit Young to federal custody for violating the injunction. Young then asked the U.S. Supreme Court to issue a writ of habeas corpus ending any such confinement. He argued that the Eleventh Amendment deprived the federal district court of jurisdiction to enjoin him from performing his official duties. The Court rejected his defense.

In an opinion joined by all his colleagues except Justice Harlan, Justice Peckham reasoned that because an unconstitutional state law is “void,” a state official who attempts to enforce such a law is acting as an individual rather than as a state official. The state, he reasoned, had no power to grant such a person “any immunity from responsibility to the supreme authority of the United States.”

The tenth chief justice, William Howard Taft, was one of the two top students in his class when he graduated from Yale in 1878. He became a member of the Yale Law School faculty after the end of his term as president of the United States. Before his election to the presidency, in 1908, he served as a federal judge on the Sixth Circuit Court of Appeals. In 1921, after being nominated by President Warren G. Harding, he became the first chief justice to have previously served as the judge of an inferior federal court. That fact is particularly remarkable because all but one of the current members of the Court are former federal circuit judges, and the one exception—Justice Kagan—had former federal judicial experience when she served as a law clerk to Justice Thurgood Marshall, in 1987. (She had also previously been solicitor general—often referred to as the tenth Supreme Court justice—and had been nominated, though not confirmed, for the seat on the U.S. Court of Appeals for the D.C. Circuit that future Chief Justice John Roberts came to occupy.)

As our tenth chief justice, Taft is entitled to the credit for two important changes in the work of the Court. He persuaded Congress to adopt the Judiciary Act of 1925, which reduced the categories of cases in which the Supreme Court must hear every appeal, and he argued successfully for the construction of the beautiful building located just east of the Capitol, where the Court is now located.

Before the completion of our “marble palace,” in 1935, the justices met in several locations within the Capitol. From 1810 to 1860, the justices convened in a small, windowless, but attractive courtroom designed by Benjamin Latrobe. The architect of the Capitol has preserved this courtroom, now known as the Old Supreme Court Chamber, and before presidential inaugurations, the justices meet in that historic courtroom to don their robes. In 1860, the Court moved into the Senate’s original chamber, now known as the Old Senate Chamber, which the Senate had that year outgrown with the admission of new states into the Union. But the justices did not have individual offices in the Capitol. Indeed, until 1935, the justices did most of their work at their homes—which is why Nat Nathanson delivered his first memos to Justice Brandeis by slipping them under his front door. Chief Justice Taft correctly concluded that they could work more efficiently in new quarters. He was also correct in thinking that the practice of arguing judicial cases in the Capitol was somewhat inconsistent with the constitutional separation of the powers of the three branches of government. Unfortunately, Taft died in 1930 before the magnificent building the Court now occupies was completed.

It was during Taft’s tenure that Justice James McReynolds, often considered a reactionary, wrote two important opinions broadly interpreting the term liberty as used in the Fourteenth Amendment. In Meyer v. Nebraska (1923), the Court overturned Robert Meyer’s conviction for teaching the German language to high school students. In Pierce v. Society of Sisters (1925), the Court sustained a challenge by parochial and private schools to an Oregon statute requiring children to attend public schools. In both cases, the Court held that the state laws in question were invalid as they were deprivations of liberty protected by the due process clause of the Fourteenth Amendment.

Justice Brandeis built on these and other similar decisions involving the meaning of the word liberty in his concurrence in a 1927 free-speech case known as Whitney v. California. It was his reasoning concerning the existence and importance of the substantive content of the due process clause that qualifies his opinion as the most significant one released during Taft’s tenure as chief justice. I shall quote an excerpt:

Despite arguments to the contrary which had seemed to me persuasive, it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure. Thus all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States. The right of free speech, the right to teach and the right of assembly are, of course, fundamental rights…. These may not be denied or abridged…. Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty.

In 1910, well before becoming chief justice and while still president of the United States, Taft nominated Charles Evans Hughes to be an associate justice. Six years later Hughes became the Republican candidate for president and resigned from the Court; he was narrowly defeated by Woodrow Wilson. Hughes served as secretary of state under Presidents Harding and Coolidge, and in 1930, when Taft retired, President Hoover nominated him to the position of chief justice. During both of his periods of service on the Court, he was regarded as a brilliant lawyer and an especially able jurist. I am sure that Bill Rehnquist thought of him as the predecessor whom he most wanted to emulate.

Hughes’s tenure as chief began during the Great Depression and included the first two terms of Franklin Delano Roosevelt’s presidency. Immediately after FDR took office, Congress enacted a number of far-reaching statutes, several of which the Supreme Court declared unconstitutional. Hughes wrote the Court opinion in A.L.A. Schechter Poultry Corp. v. United States (1935), which held the National Industrial Recovery Act of 1933—a major piece of FDR’s economic program—unconstitutional. But he dissented in other cases striking down laws that FDR had championed.

The Court’s decisions during the first few years of the New Deal created what FDR regarded as a constitutional crisis. In 1937, Roosevelt responded by proposing a Court-packing plan that would have enabled him to enlarge the Court by appointing as many additional justices as the number then on the Court who had served for at least ten years and were at least seventy years old, provided that the total membership did not exceed fifteen. Presumably, the fifteen-justice limit was chosen because six members of the Court were over seventy.

In his message to Congress supporting the proposal, the president argued that the Court was behind in its work and implied that judges over seventy were so “aged and infirm” that they could not carry their share of the load. Hughes did not then—and I do not now—find that argument persuasive. In March, he responded with a letter to the chairman of the Senate Judiciary Committee explaining that the Court was fully abreast of its work and that in his opinion an increase in the number of justices would impair its efficiency. In June, the Judiciary Committee issued its report recommending rejection of the proposal as a “needless, futile, and utterly dangerous abandonment of constitutional principle.”

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Excerpted from Five Chiefs by John Paul Stevens Copyright © 2011 by John Paul Stevens. Excerpted by permission.
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