John Marshall – The Intelligent Collector Magazine

To borrow a phrase, Chief Justice Roberts looked like he came directly from central casting

A photograph of Chief Justice John G. Roberts Jr. and Associate Justice John Paul Stevens, taken following Roberts’ oath-taking and signed by both on the mat, went to auction in May 2017.

By Jim O’Neal

At noon on Sept. 12, 2005, I was glued to the TV to watch the start of the Senate Judiciary Committee. Chairman Arlen Specter gaveled the committee to order to consider the nomination of Judge John Glover Roberts Jr. as Chief Justice of the Supreme Court. Day one included Judge Roberts’ introduction of his family and friends in attendance, followed by four short speeches by prominent senators advocating for his confirmation. This abbreviated session was to accommodate the short attention spans of Roberts’ two young children. The meeting was adjourned for the day with the formal occasion to resume the following morning.

As an amateur connoisseur of great speeches and the courtroom drama that testimony in front of Congress can engender, I was impatient for the next day. I was not disappointed. Judge Roberts, dressed in a black suit and starched white shirt and tie (but without his customary gold cuff links) looked like he was out of central casting. He assumed his seat after the customary swearing-in ritual. However, what was strikingly different was the starkness. The table where he sat and made his opening statement was devoid of items. Not a single note, pen or even a glass of water. One man sitting all alone looking up at 18 senators (nearly half of them partisan enemies hoping to derail his career), while he looked totally relaxed, confident and alert.

Devoid of any speeches or even cue cards, he politely thanked several and transitioned to his Indiana roots, referring to “the limitless fields punctuated only by a silo or barn.” It evoked an image of Middle America that effortlessly transported the entire committee back to their own memories of growing up. It was a flawless finesse that allowed him to exclude any reference to his life in the exclusive Long Beach community on Lake Michigan or his selective education at La Lumiere, a college prep school where a jacket and tie were required for classes and the dining hall. He graduated No. 1 in his class in 1973 and was the school’s first Harvard-bound student. Naturally, he graduated from Harvard summa cum laude in 1976, and graduated magna cum laude from Harvard Law.

He would let others plump his resume, while he edited himself down to a plainspoken, modest Midwesterner. Janet Malcolm commented in The New Yorker: “Watching Roberts on television was like watching one of the radiantly wholesome heroes that Jimmy Stewart and Henry Fonda played. It was out of the question that such a man be denied a place on the Supreme Court.”

Roberts was aware of the value of including a vivid metaphor, quotable line or a phrase to memorialize the event and he picked a good one. “Judges are like umpires. Umpires don’t make the rules, they apply them. The role of a judge and an umpire is critical. They make sure everyone plays by the rules, but it is a limited role. Nobody ever went to a ballgame to see the umpire.” That is now a common definition often used when needed.

It was a twist of fate that John Roberts was being interviewed for Chief Justice. On July 19, 2005, President Bush had nominated him to fill the vacancy created by the retirement of Justice Sandra Day O’Connor. While this nomination was still pending, on Sept. 3 Chief Justice William H. Rehnquist died from thyroid cancer. During the process of selecting Justice O’Conner’s replacement, Bush had solicited the opinion of several young lawyers in the White House. One was Brett Kavanaugh, who had been nominated to the D.C. Circuit Court of Appeals. Kavanaugh told him that both Roberts and Samuel Alito would be solid choices, but the tiebreaker would be who was most capable of convincing their colleagues through persuasion and strategic thinking. On this basis, Roberts was clearly the best.

After the Hurricane Katrina disaster that August, President Bush had no appetite for controversy. Reports on Judge Roberts’ interviews in the Senate were going so well that he changed Roberts’ nomination to Chief Justice. That would delay the O’Conner replacement for several months and the court would have to operate with only eight members. This was fortunate, since a highly unqualified Harriet Miers, who worked for Bush in the White House, was the lead candidate to replace O’Conner … and with more time to consider her credentials, saner heads prevailed.

The next three days of hearings offered an exquisite buffet for addicts like me. It started with a round of 10 minutes per senator and it was mildly amusing when Senator Joe Biden’s pontificating took so long that he ran out of time before asking a single question. Judge Roberts displayed remarkable intellect – and a wry sense of humor – when discussing important Supreme Court cases. When Senator Lindsey Graham of South Carolina asked Roberts what he would like future historians to say about him, Roberts joked: “I’d like for them to start by saying, ‘He was confirmed!’”

Questions fell into a regular rhythm and Roberts answered them almost effortlessly. In addition to his education and experience, the “Murder Boards” – the phrase used for pre-hearing rehearsals – must have really fine-tuned every aspect of what was anticipated. Even today, prospective nominees study the tapes of his hearing as part of their preparation. I got the feeling he was being polite to a bunch of partisan senators (all lawyers) without acting too condescending.

Senator Chuck Schumer of New York became so frustrated at one point he said, “Why don’t we just concede John Roberts is the smartest guy in the room.” In another memorable exchange, Schumer complained, “You agree we should be finding out your philosophy, and method of legal reasoning, modesty, stability, but when we try to find out what modesty and stability mean, what your philosophy means, we don’t get any answers. It’s as if I asked you what kind of movies you like. Tell me two or three good movies and you say, ‘I like movies with good acting. I like movies with good directing. I like movies with good cinema photography.’ And I ask, no, give me an example of a good movie, you don’t name one. I say, give me an example of a bad movie, you won’t name one, and I ask you if you like Casablanca, and you respond by saying lots of people like Casablanca.”

Senator Specter started to cut Schumer when Roberts interrupted, “I’ll be very succinct. First, Doctor Zhivago, and North by Northwest.” Yes, there was laughter in the room.

Roberts made it out of the Judiciary Committee on a vote of 13-5 as Democrats found creative excuses to vote no. Then it was on to the full Senate, where he was confirmed 78-22. The 50-year-old Roberts became the youngest Chief Justice since 1801, when the venerable John Marshall (46) was selected.

The Chief Justice is mentioned only once in the Constitution, but not in Article 3, which establishes the judiciary. It is in Article 1, covering Congress, and it says the Chief Justice presides over the Senate during any impeachment of the president (Article 1 Section 3 Clause 6).

The framers vested the Senate with the “sole power to try impeachment” for several reasons. First, they believed senators would be better educated, more virtuous and more high-minded than members of the House. Secondly, it was to avoid the possible conflict of interest of a vice president presiding over the removal of the one official standing between him and the presidency. Of our 45 presidents and 17 Chief Justices, only Andrew Johnson and Bill Clinton have been impeached, with Samuel Chase and William Reinquist presiding over their trials. Both were acquitted.

Intelligent Collector blogger JIM O’NEAL is an avid collector and history buff. He is president and CEO of Frito-Lay International [retired] and earlier served as chair and CEO of PepsiCo Restaurants International [KFC Pizza Hut and Taco Bell].

Yes, Presidential Elections Have Consequences

Chief Justice of the Supreme Court John Marshall is featured on this Fr. 375 Serial Number One $20 1891 Treasury Note, which sold for $114,000 at an April 2018 Heritage auction.

By Jim O’Neal

In theory, there is no mystery or debate regarding the intention of the Founding Fathers in the selection of members to serve on the Supreme Court.

The Constitution crisply explains, in the second paragraph of Article II, Section 2, that the president shall nominate, and by and with the advice and consent of the Senate, shall appoint judges of the Supreme Court. This provision means exactly what it says and is unchanged by any modifications since its adoption. That includes a simple majority vote of the Senate to grant such consent, to reject or refuse to take action on the presidential nominee.

One idea discussed, but not acted upon, was Benjamin Franklin’s explanation of the Scottish mode of appointment “in which the nomination proceeded from the lawyers, who always selected the ablest of the profession in order to get rid of him, and share his practice among themselves” – a uniquely clever way to eliminate superior competition.

What has changed is the adoption of the “nuclear option” in 2017, which invoked cloture to end filibustering in the Judicial Committee and forced a vote of the committee either up or down on making their recommendation to the full Senate. House Majority Leader Harry Reid had used it to great effect for all legislation that he allowed to the floor while the Democrats were in the majority. Republicans expanded it to include Supreme Court nominees after they regained the majority in 2016. Neil Gorsuch was elected to the Supreme Court under this new rule with a 54-45 Senate vote, picking up three anxious Democrat votes in the process. It’s widely assumed that current nominee Judge Brent Kavanaugh will be elected to the Supreme Court following a similar path since his opponents appear helpless to stop him.

As President Obama once explained, in not too subtle fashion, “Elections have consequences.”

It now seems clear that the Founding Fathers did not foresee that political parties would gradually increase their influence and that partisan considerations of the Senate would become more prominent than experience, wisdom and merit. This was magnified in the current effort to stymie a nomination when the opposition announced they would oppose any candidate the Chief Executive chose. Period. It may not seem reasonable on a literal basis, but it has gradually become routine and will only get worse (if that’s still possible).

It may astonish some to learn that no legal or constitutional requirements for a federal judgeship exist. President Roosevelt appointed James F. Byrnes as an associate justice in 1941 and his admission to practice was by “reading law.” This is an obsolete custom now – Byrnes was the last to benefit – that proceeded modern institutions that specialize in law exclusively. In Byrnes’ case, it’s not clear that he even had a high school diploma. But he was a governor and member of Congress. He resigned 15 months later (the second shortest tenure) in order to become head of the Office of Economic Stabilization and was a trusted FDR advisor who many assumed would replace Vice President Henry Wallace as FDR’s running mate in 1944. That honor went to the little-known, high-school educated Harry Truman, who would assume the presidency the following year when FDR died suddenly.

Thomas Jefferson never dreamed the Supreme Court would become more than just a necessary evil to help balance the government in minor legal proceedings and would be more than astonished that they now are the final arbiter of what is or isn’t constitutional. The idea that six judges (who didn’t even have a dedicated building) would be considered equal to the president and Congress would have been anathema to him.

However, that was before he met ex-Secretary of State John Marshall when he became Chief Justice of the Supreme Court and started the court’s long journey to final arbiter of the Constitution when he ruled on Marbury v. Madison in 1803. There was a new sheriff in town and the next 40 years witnessed the transformation of the court to the pinnacle of legal power. They even have their own building thanks to President William Howard Taft, who died two years before it was complete. Someday, Netflix will persuade them to livestream their public discussions for all of us to watch, although I personally prefer C-SPAN to eliminate the mindless talking heads that pollute cable television.

Intelligent Collector blogger JIM O’NEAL is an avid collector and history buff. He is president and CEO of Frito-Lay International [retired] and earlier served as chair and CEO of PepsiCo Restaurants International [KFC Pizza Hut and Taco Bell].

How Far Will We Go In Amending American History?

A collection of items related to the dedication of the Washington Monument went to auction in May 2011.

By Jim O’Neal

Four years ago, George Clooney, Matt Damon and Bill Murray starred in a movie titled The Monuments Men, about a group of almost 400 specialists who were commissioned to try and retrieve monuments, manuscripts and artwork that had been looted in World War II.

The Germans were especially infamous for this and literally shipped long strings of railroad cars from all over Europe to German generals in Berlin. While they occupied Paris, they almost stripped the city of its fabled art collections by the world’s greatest artists. Small stashes of hidden art hoards are still being discovered yet today.

In the United States, another generation of anti-slavery groups are doing the exact opposite: lobbying to have statues and monuments removed, destroyed or relocated to obscure museums to gather dust out of the public eyes. Civil War flags and memorabilia on display were among the first to disappear, followed by Southern generals and others associated with the war. Now, streets and schools are being renamed. Slavery has understandably been the reason for the zeal to erase the past, but it sometimes appears the effort is slowly moving up the food chain.

More prominent names like President Woodrow Wilson have been targeted and for several years Princeton University has been protested because of the way it still honors Wilson, asserting he was a Virginia racist. Last year, Yale removed John C. Calhoun’s name from one of its residential colleges because he was one of the more vocal advocates of slavery, opening the path to the Civil War by supporting states’ rights to decide the slavery issue in South Carolina (which is an unquestionable fact). Dallas finally got around to removing some prominent Robert E. Lee statues, although one of the forklifts broke in the process.

Personally, I don’t object to any of this, especially if it helps to reunite America. So many different things seem to end up dividing us even further and this only weakens the United States (“United we stand, divided we fall”).

However, I hope to still be around if (when?) we erase Thomas Jefferson from the Declaration of Independence and are only left with George Washington and his extensive slavery practices (John Adams did not own slaves and Massachusetts was probably the first state to outlaw it).

It would seem to be relatively easy to change Mount Vernon or re-Washington, D.C., as the nation’s capital. But the Washington Monument may be an engineering nightmare. The Continental Congress proposed a monument to the Father of Our Country in 1783, even before the treaty conferring American independence was received. It was to honor his role as commander-in-chief during the Revolutionary War. But when Washington became president, he canceled it since he didn’t believe public money should be used for such honors. (If only that ethos was still around.)

But the idea for a monument resurfaced on the centennial of Washington’s birthday in 1832 (Washington died in 1799). A private group, the Washington National Monument Society – headed by Chief Justice John Marshall – was formed to solicit contributions. However, they were not sophisticated fundraisers since they limited gifts to $1 per person a year. (These were obviously very different times.) This restriction was exacerbated by the economic depression that gripped the country in 1832. This resulted in the cornerstone being delayed until July 4, 1848. An obscure congressman by the name of Abraham Lincoln was in the cheering crowd.

Even by the start of the Civil War 13 years later, the unsightly stump was still only 170 feet high, a far cry from the 600 feet originality projected. Mark Twain joined in the chorus of critics: “It has the aspect of a chimney with the top broken off … It is an eyesore to the people. It ought to be either pulled down or built up and finished,” Finally, President Ulysses S. Grant got Congress to appropriate the money and it was started again and ultimately opened in 1888. At the time, it was 555 feet tall and the tallest building in the world … a record that was eclipsed the following year when the Eiffel Tower was completed.

For me, it’s an impressive structure, with its sleek marble silhouette. I’m an admirer of the simplicity of plain, unadorned obelisks, since there are so few of them (only two in Maryland that I’m aware of). I realize others consider it on a par with a stalk of asparagus, but I’m proud to think of George Washington every time I see it.

Even so, if someday someone thinks it should be dismantled as the last symbol of a different period, they will be disappointed when they learn of all the other cities, highways, lakes, mountains and even a state that remain to go. Perhaps we can find a better use for all of that passion, energy and commitment and start rebuilding a crumbling infrastructure so in need of repairs. One can only hope.

U.S. Politics Has Rarely Seen a Character Like Aaron Burr

The signatures of Aaron Burr (above) and Alexander Hamilton sold for $2,500 at an April 2015 Heritage auction.

By Jim O’Neal

During the 1787 U.S. Constitutional Convention, there was a heated debate between delegates from southern and northern states over how to count slaves when determining a state’s population for both legislative representation and taxes. Finally, the “Three-Fifths Compromise” was reached, giving southern states one-third more seats in Congress and one-third more electoral votes than if slaves had been excluded.

In the presidential election of 1800, Vice President Thomas Jefferson and Aaron Burr were able to defeat incumbent President John Adams and Charles C. Pinckney due to this single factor. However, under Electoral College rules of the day, it took 36 votes in the House of Representatives to make Jefferson president and Burr vice president. This caused a major rift between the two men. Then the relationship really turned bitter after Burr killed Alexander Hamilton in a duel on July 11, 1804.

Burr was charged with murder in New York and New Jersey, but neither reached trial after courts overturned the grand jury indictment. Burr fled to Georgia, but returned to Washington, D.C., to complete his term as vice president and presided over the impeachment trial of Supreme Court Justice Samuel Chase. The Senate refused to convict Chase and he remains the only Justice of the Supreme Court to be impeached.

This was followed by a bizarre series of events involving Burr that included a suspected conspiracy to recruit a group of volunteers for a military expedition down the Mississippi River, provoke a war with Spain, hoping to split off some western states, and create a new inland empire. The expedition collapsed almost immediately and a co-conspirator of Burr betrayed him by sending alarming messages to President Jefferson. Convinced of Burr’s guilt, Jefferson ordered his arrest and he was taken into custody and treason charges were filed. Burr escaped, but was recaptured and taken to Virginia for trial.

In Richmond, they learned the electrifying news that Burr, former VP of the U.S., had been accused of treason and his trial would be held in their courthouse. The trial of such a prominent person attracted legal officials from a broad area. Chief Justice John Marshall was picked to preside over the trial and Burr’s defense lawyers included Edmund Randolph (U.S. Attorney General under George Washington) and Charles Lee, Attorney General for John Adams. The chief prosecutor was James Monroe’s son-in-law, George Hay.

Notable witnesses included Andrew Jackson, a friend of Burr who thought Jefferson was maligning him and started picking fights with Jefferson’s friends – even challenging star witness General James Wilkerson to a duel. Wilkerson was the co-conspirator who provided the incriminating evidence to Jefferson.

The trial started on May 22, 1807, but despite all the intriguing circumstances, there was a lack of evidence as explicated by Judge Marshall and the jury declared the accused not guilty in September. Most observers conceded that the outcome was inevitable. However, Burr’s political career was finally ended and he left America on a self-imposed exile in Europe (presumably to escape his creditors!).

Only Four Presidents Never Appointed a Supreme Court Justice

An 1840 silk banner depicting William Henry Harrison realized $33,460 at a May 2010 Heritage auction.

By Jim O’Neal

When Donald Trump’s appointee fills the Supreme Court vacancy created by the death of Justice Antonin Scalia, the chief executive will escape from a small group of presidents who did not appoint a single nominee confirmed by the Senate. Trump’s pick will join the other 117 justices, 17 chief justices and four women who have served on the court.

Presidents without a Supreme Court appointee:

William Henry Harrison (1841) – Died only 31 days after being inaugurated.
Zachary Taylor (1849-50) – Died 16 months after inauguration.
Andrew Johnson (1865-69) – Victim of a hostile Congress that blocked several nominees.
Jimmy Carter (1977-81) – The only president to serve a full term with no vacancies during his four years in office.

It seems clear that the Founding Fathers did not spend a lot of time considering the importance of the Supreme Court as an equal branch of government. That would come later during the tenure of Chief Justice John Marshall, who many credit with providing the balance to ensure that our fragile democracy survived.

One example is there are no legal or constitutional requirements for a federal judgeship. There does exist an unwritten prerequisite to have practiced law or to have been a member of the bar, but it is not mandatory. As a matter of historical record, no non-lawyer has ever been a member of the Supreme Court – and it is a virtual certainty that none ever will.

And, although the methodology for judicial appointments was subject to intense debate, the criteria for such appointments was apparently not a matter of significance. Those few delegates who did raise the issue of criteria did so by assuming merit over favoritism. Congress also did not foresee the role political parties would very soon come to play in the appointment and confirmation process.

Only John Adams clearly anticipated the rise of political parties but, of course, he was not a member of the Constitutional Committee. He summarized it rather well: “Partisan considerations, rather than the fitness of the nominees, will often be the controlling consideration of the Senate in passing on nominations.”

I suspect they would all be disappointed by the dramatic, partisan “gotcha” grilling that nominees face today.

Personally, I would prefer the old process the Scots used to select Supreme Court justices. The nominations came from the lawyers, who invariably selected the most successful and talented members of the legal community. This effectively eliminated their most fierce competition, which then allowed them to solicit their best customers. The court would then truly be assured of getting the best-of-the best, while the profession competed for clientele.

Intelligent Collector blogger JIM O’NEAL is an avid collector and history buff. He is president and CEO of Frito-Lay International [retired] and earlier served as chairman and CEO of PepsiCo Restaurants International [KFC Pizza Hut and Taco Bell].

Jefferson Stretched Constitution to its Limit

By Jim O’Neal

Thomas Jefferson was 57 years old when he was sworn in as president on March 4, 1801, in a simple ceremony in Washington, D.C. He was the first president to take office in the new capital, then a city of 6,000, but without representation in Congress. In 1961, the 23rd Amendment to the Constitution granted the district one non-voting, at-large delegate to the House of Representatives and three electoral votes in presidential elections, but no representation in the U.S. Senate. In 1973, they were granted limited self-government, which includes a mayor and a city council with 13 elected members.

Since the passage of the amendment, the district’s three electoral votes have been cast for the Democratic Party’s presidential and vice presidential candidates in every election. They are bound by law to never have more electoral votes than a state (in this case Wyoming, which has three).

Denounced as a radical and atheist by his political opponents, Jefferson became the first leader of an opposition political party to wrest control of the national government from the party in power. Despite grim prophecies by the outgoing Federalists that the Constitution would be overthrown, he proved to the world the strength of the American republic and its democratic system. Jefferson believed the United States should remain an agrarian country of small farms and a national government that offered little interference in the lives of its citizens. He warned of the evils of large cities – with disease, poverty and centralized power that fostered corruption.

However, as president, in his own words, he “stretched the Constitution till it cracked” by using presidential powers to double the size of the country, presumably to give people room to spread out and avoid dense urbanization (the Louisiana Purchase), and discharge major political appointees of his predecessor. Chief Justice John Marshall restrained him from applying the same principle to federal judges.

After suffering through the embarrassment of the Aaron Burr-Alexander Hamilton affair, he chose the elderly George Clinton for vice president in his second term, with the obvious intent to ensure a VP that was too old to succeed him. He then orchestrated the election of his old Virginia friend and Secretary of State James Madison to become the fourth president.

Refusing all pleas for a third term, he more than welcomed his pending retirement, writing “Never did a prisoner released from his chains feel such relief I shall in shaking off the shackles of power … I thank God for the opportunity of retiring from them without censure and carrying with me the most consoling proofs of public approbation.”

For his epitaph, he asked for “not a word more” about his time as vice president or president. After 17 years in retirement, his wish was granted and his cherished University of Virginia (which he founded) and the Declaration of Independence seem fitting memorials for this remarkably versatile man to which we all owe an eternal debt of gratitude.

Intelligent Collector blogger JIM O’NEAL is an avid collector and history buff. He is President and CEO of Frito-Lay International [retired] and earlier served as Chairman and CEO of PepsiCo Restaurants International [KFC Pizza Hut and Taco Bell].

As We Pay Tribute to Scalia, Let’s Recall Landmark Appointment Case

After he was defeated in the 1800 presidential election, John Adams retired to Massachusetts as a gentleman farmer. A letter he wrote and signed 13 years later realized $46,875 at an October 2014 Heritage Auction.

By Jim O’Neal

The landmark case known as Marbury vs. Madison arose after the bitter 1800 election when Vice President Thomas Jefferson defeated President John Adams, tied with and Aaron Burr and then eventually won when Alexander Hamilton swung the New York boys to him on the 36th ballot.

A bitter Adams made a last-minute attempt to pack the judiciary with Federalists by appointing 16 new circuit judges and 42 new Justices of the Peace for the District of Columbia. However, four of the new justices, including William Marbury, did not get their commissions before Adams’ last day in office.

Secretary of State James Madison refused to give the four men their commissions, so Marbury asked the Supreme Court to issue a writ of mandamus ordering Madison to do it. This put Chief Justice John Marshall (newly appointed by Adams) in a delicate situation. If the Supremes issued the writ, Madison might simply refuse and the Court had no means to enforce compliance.

Alternatively, if the Court did not, then he was risking surrendering judicial power to Jefferson and his Democratic-Republican Party (later to become the Democratic Party).

Marshall decided there was no middle ground and that left the choice of either declaring the Constitution to be superior and binding, or allowing the legislature to be an entity of unchecked power. Since the nation had established a written Constitution with fundamental principles to bind it in the future, it had to be both superior and binding law. And if the Constitution was the superior law, then an act “repugnant” must be invalid.

The decision was to discharge Marbury’s action because the Court did not have original jurisdiction, and the Judiciary Act of 1789, which Marbury argued was the basis of his petition, was unconstitutional. The Court found the Constitution specifically enumerated cases where the Court had both original and appellate jurisdiction. The Court also concluded a writ of mandamus was unconstitutional and void.

In more recent times, the Court has asserted a broad judicial review power and the role as the ultimate interpreter of the Constitution. Once a law is declared unconstitutional, the courts simply decline to enforce it. Judicial review was once controversial. Even Judge Learned Hand felt it was inconsistent with the separation of power. However, “Marbury” served to make the judiciary equal to the executive and legislative branches.

Most scholars and historians give full credit to Chief Justice Marshall for solidifying this principle of an equal tripartite government structure that has served us well for 200-plus years.

Author Harlow Giles Unger goes even further in his 2014 biography (John Marshall: The Chief Justice who Saved the Nation), where he claims Marshall turned into a bulwark against presidential and congressional tyranny and saved American Democracy.

I tend to disagree since the process for selecting members has been politicized to the point the Court seems to be simply an extension of which party controls the lever of power. I suspect we will have a chance to see this phenomenon several times in the next four to eight years as turnover increases.