Host
If our guest of honor has often defied the odds, so too, she has resisted those who would put a label on her judicial philosophy for labels for cans, not coalition builders. for 23 years, she has demonstrated a rugged individualism reminiscent of the Arizona frontier of her girlhood belonging to no quick or ideological camp, as committed to the separation of powers as Publius as suspicious of judge made war as homes. officiating at a wedding in 1931. Justice Benjamin Cardozo's spoke of quote, three grades mysteries in the lives of mortal beings, the mystery of birth at the beginning, the mystery of death at the end, and greater than either the mystery of love. Everything that is most precious in life is a form of love. Art is a form of love, if it be Noble. Labor is a form of love, if it be worthy. Thought is a form of love, it be inspired the art of jurisprudence, the labor of legal interpretation, the thought of a lifetime devoted to justice in the spirit of Cardozo, and the tradition of homes. It is no mystery by the Center for the Study of the presidency, should present the 2004 police award to Justice Sandra Day O'Connor, whose wall the wall is inseparable from her passion for justice. Congratulations.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
That was quite an introduction. I wish the Cowboys could have heard that. Back at the lazy BR Richard Norton Smith is a wonderful historian and john and i were first privileged to meet him at the Ronald Reagan library. And it's fun to hear him speak but I don't like listening about myself. Now, David Abshire, my friend, that's very good to be here. He visited me a good many months ago to see if this night might be possible. And I'm glad it is, and Leo daily. We've enjoyed some wonderful times together as well. And it's a pleasure to see such a wonderful group of fellows that this Center for the Study of the presidency has assembled. It absolutely is the way to go to look to the future and to assemble these extraordinarily talented young people. So it's a great honor to be here, and to receive this fine, Publius award. And I particularly appreciate the willingness of an institution dedicated to the study of the executive branch to recognize a member of the judicial branch. Many many of the most remarkable events in the history of each of these branches of government involved the its intersection with the other. As I consider this honor and the thoughts I wanted to share with you this evening. I couldn't help but think of one particular historic figure of node, William Howard Taft. A story is told that Mr. Taft once found himself stranded at a small country railroad station. He was told that the express train would stop only for a large group of passengers. Taft wired the conductor stop at Hicksville, large party waiting to catch train. When the trains and stop Taft boarded alone, he then turned to the confused conductor, you can go on ahead, he declared, I am the large party. We laugh at that story because we remember that Taft that is heaviest tip the scales at over 300 pounds. But as the 27th President of the United States, and as the 10th, Chief Justice of the United States, he also was the only person ever to tip the scales by holding both of those incredibly large offices, experiencing firsthand the large responsibility of heading two of the most significant institutions in the free world, his time and these two roles put them on two different sides of the same constitutional coin.

Indeed, our remarkable constitution recognizes the individual largeness of these governmental bodies while acknowledging that their relative strengths will at times coexist, at times collide, and nearly always managed to carry out the will of the majority, while safeguarding the rights of minority. I would like to take a little time tonight to reflect on some moments in history, in which these two large institutions with large constitutional obligations have intersected, overlapped and even clashed. A look at the dynamic between the two speaks volumes about the genius of our Constitution. First, Jefferson and Marshall. To find an example of the judiciary and the presidency surviving the collision of two larger than life personalities. We don't have to travel very far into the early days of our republic. second cousins, john Marshall and Thomas Jefferson, were anything but the kissing kind. Indeed, their relationship was privately nasty, and publicly only slightly better. Their exchanges well documented, but not well mannered. Playing this seeds for an all out war on the proper role of the judiciary visa be the other branches of government and set the trajectory of constitutional law as we know it today. Thomas Jefferson almost was not our third president coming to the post, only after the House of Representatives broken electoral tie boat in his race with Aaron Berger.

John Marshall almost was not our fourth Chief Justice receiving the nomination from President John Adams only after the first choice, John Jay, declined reappointment. But one state brought them to their respective positions of authority. Jefferson and Marshall came to blows in ways that put even today's climate of political acrimony to shame. Early in his administration, Jefferson attempted to have Marshall impeached. He accused him of irregular and central behavior in Marshall's hands. Jefferson said the law is nothing more than an ambiguous text to be explained by his sophistry into any meaning which may some serve his personal malice.

He spoke vehemently of his bitter disappointment in his own appointees to the Supreme Court, calling them lazy and weak for not standing up against the craft, the chief judge. Marshall in turn labeled Jefferson totally unfit for the presidency. Jefferson call that Chief Justice Amanda blacks lounging manners and a profound hypocrisy. Over time, these two actors played out a rather hateful drama rooted in personal animus and fundamental disagreement on the proper role of government and the appropriate balance between the judicial and the executive branches. History teaches us that it was marshals decision in Marbury v. Madison, a case that many say might as well have been captioned, Marshall versus Jefferson, that permanently legitimated and strengthen the Supreme Court.

And that gave the Chief Justice his least obvious but perhaps greatest victory over President Jefferson in the watershed 1800 election. Marshall's Federalist Party lost control of the executive and the legislative branches to Jefferson's Republicans, and in an effort to retain some presence and government decided the Federalists decided to pack the judiciary on their way out the door. President Adams appointed john Marshall then the secretary of state as Chief Justice, and Congress passed a number of pieces of legislation to restructure their court system and provide the lame duck senate and the outgoing president Adams with many new positions to fill. Adams fill them or thought he did through a series of midnight appointments. But Jefferson thought back when he took office, he refused to deliver the Commission's of some of the apple entities.

And when Mr. Marbury, an appointed judge who didn't get his commission, tried to get a court order compelling the administration to deliver it. The case made its way to the Supreme Court. Chief Justice Marshall to the surprise that many denied the order that would have forced his nemesis to issue that judicial commissions. But the victory he handed to Thomas Jefferson came with a silver lining for Marshall. The order was denied on the grounds that the part of the Judiciary Act that had given the supreme court the power to issue such orders violated the Constitution. Writing for a unanimous Court, Marshall declared [that] the Courts as well as other departments are bound by the Constitution. And more importantly, it is emphatically the province and duty of the judicial department to say what the Constitution means. Now in one fell swoop, Marshall gave up a small power that Congress had conferred on the Court and took in exchange a larger overarching power to examine the ultimate constitutionality of all acts of Congress challenged in court. Now despite the vehement disagreement of his cousin, Thomas Jefferson, this bold assertion by John Marshall has survived as the final and official answer to this day.

The lessons to be learned from the story of Jefferson and Marshall are too many to be recounted here. It's the story of a government that develops and grows and changes over time. It's the story of large institutions competing and accommodating in ways that amaze and alarmists. Perhaps even more significantly, it's a story that begins a distinctively human thread that we will see woven throughout all the episodes I'm going to mention tonight, the judiciary and the presidency, are inhabited by real people with real emotions, real foibles, and a very real, if sometimes conflicting commitment to doing what's right. A second historic moment of interaction between the presidency and the judiciary stars President Abraham Lincoln and Chief Justice Roger Taney.

To my knowledge, it represents the only time a sitting president has deliberately defied a direct court order. In the early days of the Civil War, the fragile American nation faced serious threats from within the southern states had broken away, the European powers were posed to intervene to divide the young nation permanently into union and Confederacy. The war post another sort of danger, a danger less obvious perhaps than columns of soldiers marching through the countryside, but more insidious. It was the danger that a government of war might use as its extraordinary powers to stamp out political opposition. In April 1869 1861, a train-load of Union soldiers passed through Baltimore on the way to Washington, DC. They were summoned to man the defensive fortifications around the Capitol, they were greeted by an angry mob of Southern sympathizers and they had to fight their way across Baltimore, to another train station where the train to Washington waited. Later that night, local authorities who favored the South burned the bridges and cut the telegraph lines between Baltimore and Washington, claiming that Union soldiers might come back looking for revenge after the riot. Congress was out of session. President Lincoln found himself in a capital city with a rebel army to itself and a secession-minded mob to ignore it. Invoking his power as commander-in-chief, he authorized local military leaders to suspend the writ of habeas corpus, all along the railroad line from Washington to Philadelphia. Essentially, this meant that the army could arrest civilians without getting a warrant from a court or without probable cause to believe a crime had been committed by the person arrested and without providing legal representation or a jury trial that the Constitution guarantees.

Now Mr. John Merryman, a mem--a member of the Maryland legislature who'd been recruiting rebel soldiers, was arrested by a Union general under this order, and hauled off to Fort McHenry in the harbor in Baltimore. This was when Supreme Court justices still rode the circuit, hopping on to their horses to serve as a Federal Circuit Judge around the country. When Merryman filed his request with his local Circuit Judge, he went to none other than Chief Justice Roger Taney. Taney was no friend of the Lincoln administration. And when he received Merryman's petition, he ordered the commander of Fort McHenry to bring Merryman to his court in Baltimore. Instead of complying, the commander sent back an aide with the message that the President had authorized the colonel to suspend the writ of habeas corpus. Now this, as you can imagine, incensed the Chief Justice. He wrote up a re opinion, saying that only Congress had the power to suspend habeas corpus. The President's job, he said, was merely to say that the laws were faithfully executed. President Lincoln did not publicly respond to Taney's opinion until Congress met a month later on the Fourth of July. Taking aim at Taney's assertion, he noted that in the Confederacy, the Constitution itself was being honored and was being ignored and that had he not acted when he did, Washington, DC would have fallen into Southern hands, and there would have been no Congress to act in response to the rebellion. He famously asked, "Are all the laws but one to go unexecuted, and the government itself go to pieces lest that one be violated?" So Mr. Merryman stayed in jail.

And scholars still debate whether President Lincoln had the authority to invoke the constitutional provision, suspending habeas corpus during the early days of the war. I'm not going to wade into the muddy waters of that debate. But it suffices to note that in March 9, 1863, Congress gave Lincoln express legislative authority to suspend the writ and remove any constitutional obstacle to the detention of enemy Southerners. To his immense credit, Lincoln did not use his authority to trample on the civil liberties that the writ of habeas corpus was meant to protect. Recent historical studies have indicated that he never tried to suppress political dissent. And he always understood that a democracy grows stronger by allowing the people to voice their opposition to government, even in the midst of war.

He appreciated that the strength of the Union lay not only in the force of arms, but in the liberties that were guaranteed by the open and sometimes heated exchange of ideas. He no doubt would have been pleased to know that soon after his assassination and the end of the war, his predictions that habeas corpus would be reinstated came to pass. In his words:

What constitutes the bulwark of our own liberty and independence is not our frowning battlements, our bristling sea coasts, the guns of our war steamers, or the strength of our gallant and disciplined army. But rather, it is the love of liberty, and the preservation of the spirit which prizes liberty as the heritage of man in all lands everywhere.

In this way, what might have been, what might otherwise be remembered as a clash between these two historic figures can be seen as a moment of large respect for the rule of law by, by, the President and Chief Justice.

That constitutional debate sparked by Lincoln and Taney continues even now. But I think we can do well to look beyond the complex and appreciate the character, the man behind the story. There are sincere, even if conflicting, examples of dedication to principle and to the people of a struggling nation loom large even today.

Now, a third, less well known account of the intersection between the scopes and the influence of the judiciary in the presidency, is in the story of President Franklin Roosevelt's court expansion plan. The current headcount of the justices on the Court is engraved neither in stone nor in the Constitution. There have been a lot of fluctuations in the number of justices in the history of our country, they ranged from five all the way up to 10. Back to nine after the Civil War. And along came President Roosevelt. He suggested an increase in their number from nine to what would have been 15. And a story of his have long focused on what's believed to be the real reason his plan. The real reason for his plan, he was very annoyed, frankly, that the justices kept finding some of his New Deal legislation unconstitutional. His proposal was to get Congress to pass a bill that would let them appoint a new justice every time a justice turned 70. It just so happened that at that time, six members of the court were over 70.

Finally, in this fight, a senator from Montana, Burton K. Wheeler, went to the Chief Justice of the US Supreme Court, Hughes, Chief Justice Hughes, who had kept silent on the dispute. And Wheeler got a letter from him. And Wheeler took that letter to the Senate Judiciary Committee and read it out loud. Wheeler said, "You could have heard a comma drop in the caucus room as I read that letter aloud." And, and Chief Justice Hughes struck down all the arguments offered by the President and his supporters, explaining how the Court was fully abreast of its work and was not rejecting important cases. And that an increase in the number of the justices would not promote efficiency, it would do just the opposite. In effect, the Chief Justice's argument carried the day. President Roosevelt's court-packing plan died soon after. And the Court survived what many viewed as one of the greatest crises of its history. And it emerged, I think, more keenly aware of its sometimes tenuous but always interesting relationship with the presidency.

Now, the most significant story, perhaps, on the subject, in terms of legal precedent, is what I saved for last. Coming from April 1952 during the Korean War, it features President Harry Truman, the Steel Workers Union, and Justice Robert Jackson, whom you might be interested to know had as a law clerk at the time, a bright young lawyer from Stanford by the name of William H. Rehnquist. Now at this critical time in the war effort, the steel industry and the union had reached an impasse in their negotiations. There was a strike projected by more than 600,000 workers, which would have crippled the production of weapons, and in Truman's eyes endangered American troops serving in Korea. And ever sympathetic to the steel workers, President Truman had worked for months to keep the strike at bay. And he turned to his advisors for counsel. The recommendation was to seize the steel mills, forcing the companies and the labor unions to return to the bargaining table, and management to retract what Truman thought were excessive demands for regulatory approval of price increases. The President decided to take the advice. And just hours before the scheduled strike, he called a press conference and he announced on national television, he was ordering his secretary of commerce to take over the steel mills and keep them running. The President's advisors, it turned out, had not counted on the courts getting into the fray.

We've learned from documents now available that his advisors said the odds were very slim that the judiciary would take such a hot-button issue, and that the short-lived seizure would serve its designated purpose and that things would move on. Well, it didn't happen that way. And the case began in United States District Court and the judge declared the seizure unconstitutional, saying there was utter and complete lack of authoritative support for a president's seizure of private businesses. The Court of Appeals entered a stay, and the Supreme Court heard expedited arguments. And in its decision in Youngstown Sheet & Tube v. Sawyer, it agreed with the district court that the President had exceeded his powers under the Constitution.

Writing for the majority, Justice Hugo Black rejected the government's argument that in a time of war, the President can exercise his emergency powers in so broad a fashion. But the most enduring opinion in the case was a concurring opinion written by Justice Robert Jackson, who wrote very insightfully on the issue of presidential powers, that has become the legacy of that case. According to recent writings on the case, Truman, who never liked to keep his feelings hidden, asked a top advisor to list on a sheet of paper the reasons why the Court's decision was wrong. And the President took that little slip of paper with him to a dinner party hosted by Justice Black in his home, in which all of the justices were present along with President Truman. And it was a sort of peace offering, Truman thought, to the beleaguered president. I mean, that a sort of peace offering the dinner was to Truman, and the first line of President Truman's paper, we're told, read as follows: "The Supreme Court substituted its judgment for that of the president as to the seriousness of the cessation of production of steel at this time." Now, we don't know whether Truman actually delivered that message. But we do know that at the conclusion of the dinner program, he turned to Justice Black and said, "I don't like your law. But this is mighty good bourbon."

Well, I've told you a lot of stories. And when the founders crafted the masterful Constitution that survives to this day, could they have imagined the drama of those stories you heard tonight? Could they have anticipated the human dynamics and the battles of will that would pepper the centuries to come and change the course of history in such fascinating ways? Perhaps they did. Certainly at a minimum, they foresaw that there would be times of crisis, real and perceived, international and domestic, personal and political. And that these times would inevitably put the president in the boundary, of pushing out the role of defining his own powers, and put the courts in the precarious role of reviewing the President's acts. They knew because common sense dictates as much, that institutions that are large in power and large in their impact, inevitably have run-ins that are large in scale and large in their ultimate consequences.

But they also trusted that in times of trial, their balanced system of government would provide an even larger perspective. They knew that the people of their young nation could be counted on to choose their leaders wisely, and that those chosen well could be counted on to respect the roles set out for them. So as we face the trials of today, and we certainly have them, we can find great hope in the dignity with which the presidency and the judiciary have emerged from even the rockiest episodes of the past. No doubt when this same speech is given 100 years from now, it will be remembered that the tasks before this generation were large, but I'm confident it will also be remembered that we, like our forebears, were strong enough to meet them. Thank you.