The Chief Justice’s tale

Chief Justice Roberts delivered the Barbara K. Olson lecture to the Federalist Society this evening. His topic was the Supreme Court appointments of James Madison.
It was the perfect topic, if you think about it. Roberts obviously loves history (especially, I suspect, Supreme Court history), and the topic kept him well clear of direct commentary on the legal-political issues of today. As for the Federalist Society, it dotes on the Founding Fathers and above all James Madison, whose image appears on the Society’s tie. For my part, as witty and engaging as Roberts is, I’m pretty sure I’d enjoy hearing him speak about anything.
Madison placed two Justices on the Supreme Court — Joseph Story and Gabriel Duvall. The latter is considered by at least one scholar to be least significant Justice in our history, and Roberts vowed not to destroy that claim to fame by talking much about him. He noted, though, that Duvall’s entire constitutional jurisprudence consists of this statement in the Dartmouth College case: “I dissent.”
Story, by contrast, is one of the most consequential Justices in our history. Roberts focused on the tortured path that led Madison to nominate him. The vacancy arose when Justice Cushing died. In those days, Supreme Court Justices rode a circuit, so they were normally replaced by someone from the same part of the country. In Cushing’s case, this meant New England. But New England remained Federalist country (the party, not the society), and Madison’s party had few reliable allies there. Thomas Jefferson was determined that Madison, his political protege, nominate one of them. Madison obliged, nominating Levi Lincoln. Unfortunately, Lincoln was in poor health and even though the Senate confirmed him, he couldn’t serve.
Madison then nominated Alexander Wolcott, whom Jefferson favored due to his enthusiastic efforts as a customs official to enforce Jefferson’s unpopular trade embargo. The Senate enthusiastically voted not to confirm Wolcott.
Madison then turned to John Quincy Adams, about whom Jefferson was less enthusiastic. Adams was serving as ambassador to Russia. The Senate confirmed Adams before he knew he had been nominated. Adams declined to serve, claiming he was unfit. According to Roberts, the real reason was Adams’s political ambitions.
Finally, Madison nominated Story, over Jefferson’s objections. Madison hoped that the estimable Story, a Democrat, would serve as a counter-weight to the Federalist Chief Justice (and arch-enemy of Jefferson), John Marshall. But he also must have known, as Jefferson did, that Story was not a party hack and might well be an independent force.
Madison nonetheless nominated Story on the same day he nominated Duvall. The Senate confirmed both the next business day! Story, then 32 years old, would serve for 34 years. As Jefferson had feared, he and Marshall usually saw eye-to-eye.
Chief Justice Roberts’s tale, then, is of a president de-emphasizing his party’s core anti-statist ideology, rejecting any litmus test, and nominating a Justice who once in office reinforced, rather than combated, the Court’s prevailing nationalistic jurisprudence. This, Roberts suggested, was the price of having an independent judiciary under the separation of powers arrangement that Madison developed.
Roberts’s tale may not have warmed the heart of everyone in attendance, but I’m pretty sure all of us enjoyed his presentation, and I know we all learned something.
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