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Remarks of the Chief Justice
University of Virginia School of Law

Abraham Distinguished Lecture
April 11, 2003

It is a special pleasure to deliver the Henry Abraham Lecture this evening. Before I went to law school I was a political science major, and at that time one of the recognized sub-specialties in political science was constitutional law. Political scientists have provided information and insights into the workings of the Supreme Court that complement books by lawyers on that subject. Legal academics tend to emphasize the legal doctrines, while political scientists tend to explore the workings of the system, and the people who man it. Henry Abraham's recent book Justices, Presidents and Senators is a splendid example of the latter type of work -- as he puts it in his preface, "a mini-history of the Supreme Court."

This evening I propose to give you a "mini mini" history of just one aspect of that institution -- the extra-judicial activities undertaken by various Supreme Court Justices. I am currently working on a book about the disputed election of 1876, in which Rutherford Hayes was the Republican candidate, and Samuel Tilden was the Democratic candidate. That election was, for practical purposes, resolved by an Electoral Commission created by Congress, which included ten members of Congress and five Supreme Court Justices. The service on this Commission by five members of the Court was probably as important an extra-judicial activity as has ever been undertaken by the Court's members. But in reading about it my curiosity was also aroused about other instances of such extra-judicial activity.

To many of you here, the most familiar example of extra-judicial activity of a Supreme Court Justice is probably Chief Justice Earl Warren's service on the commission that investigated the assassination of President Kennedy. But the practice of Supreme Court Justices serving in extra-judicial capacities began with John Jay, the very first Chief Justice.

In 1794, five years after Jay was appointed Chief Justice, President Washington asked him to serve as a Special Envoy to Great Britain to negotiate various disputes that had come up as a result of the Treaty of Paris. Jay was by no means desirous of this appointment and wrote to his wife:

"No appointment ever operated more unpleasantly upon me; but the public considerations which were urged, and the manner in which it was pressed, strongly impressed me with a conviction that to refuse it would be to desert my duty for the sake of my ease and domestic concerns and comforts."

It is interesting, though not surprising, that Jay does not mention the effect that his absence on such a mission might have on the Supreme Court. At that time, the Court heard an average of only six cases a year and most of the Justices' time was spent "riding circuit" -- sitting as a trial judge in different cities within the geographical area assigned to them.

Jay spent a year in England, and there is no indication that he was missed in the work of the Supreme Court. The treaty he negotiated aroused a storm of criticism when its provisions were published in the United States. But most historians have come to regard it as the best that could be had from the point of view of the United States. Upon Jay's return from England, he discovered that he had been elected Governor of New York in absentia, and resigned the Chief Justiceship to accept what he regarded as the more important office.

Upon Jay's resignation, Washington nominated John Rutledge of South Carolina to succeed him. Ironically, and unfortunately for Rutledge, he had publicly denounced the Jay Treaty in his home state of South Carolina. The Federalist dominated Senate refused to confirm him in December 1795, so he served only for a few months under a recess appointment.

Washington then nominated Oliver Ellsworth of Connecticut to be Chief Justice. He, too, would be sent on a foreign mission while holding that office -- by John Adams, who succeeded George Washington in 1797. Adams named Ellsworth as one of a three-man delegation to go to Paris and negotiate an end to the "undeclared war" between France and the United States. Like Jay, he was gone for a year, and does not seem to have been greatly missed by his colleagues on the Court. He fell ill in Paris in the fall of 1800 and sent his resignation to President Adams.

Nearly eight decades later, five Supreme Court Justices would serve on the Electoral Commission created to decide the disputed Presidential election of 1876.

The Republican Presidential candidate was Rutherford B. Hayes of Ohio; the Democratic candidate was Samuel Tilden of New York. As we all know from the disputed election of 2000, the magic number of electoral votes is now 270. Then it was 185. On the evening of election day, it appeared that Tilden had won. But quick thinking by some Republican functionaries put the result in doubt. Checking the returns carefully, it appeared that if Hayes carried the Pacific Coast states as expected, Tilden was assured of only 184, and not 185 votes. The Republicans issued a statement declaring Hayes the winner and then went to work in the three southern states where the vote was uncertain: South Carolina, Florida and Louisiana.

South Carolina appeared to be legitimately Republican, but both Florida and Louisiana were extremely "iffy." On December 6th, the Hayes electors were declared the winners in Florida by over 900 votes. But an alternate slate of electors was returned for Tilden. Similar duplicate slates were reported from Louisiana and South Carolina.

The United States Senate at this time was controlled by Republicans, and the House of Representatives by Democrats. Since Congress was the ultimate authority for deciding who had been elected, both parties scrambled for advantage. Finally the plan which ultimately prevailed took shape: the appointment of an Electoral Commission.

A Republican Senate and a Democratic House could never have agreed on a joint commission of only their members which had the necessary uneven number to decide the question one way or the other. To the evenly divided members of Congress on the Commission there had to be added an uneven number of members from outside Congress. The Executive Branch, controlled by a Republican President, offered no hope of impartiality. So Congress turned towards the Third Branch -- the Supreme Court.

But it did so with great care. One of the first proposals was to name two Justices appointed by Republican Presidents, two by Democratic Presidents, and the fifth to be chosen by lot. Tilden strongly objected to this, and in doing so coined one of his rare bon mots. He said "I may lose the Presidency, but I will not raffle for it." The proposal finally adopted named two members of the Court who were Democrats -- Nathan Clifford and Stephen Field -- and two members who were Republicans -- Samuel Miller and William Strong. These four Justices would choose a fifth Justice and the tacit understanding was that it would be David Davis, regarded as a genuine political independent. When Davis refused to serve, the four named members chose Joseph Bradley, an appointee of President Grant who was the closest substitute for a political independent as could be had among the remaining members of the Court.

Field was the only one of the five Justices who wanted this assignment. And Bradley must have wished it least of all; before the Commission ever sat, he was regarded in the Democratic press as the "casting vote" among its fifteen members. If he voted with the Republicans, he would be condemned as a party hack, rather than an honest jurist. If he voted with the Democrats he would doubtless be praised as an independent arbiter, but denounced by all the elements of his own party which had placed him where he was.

Bradley appears to have studied the matter carefully, though there were largely false reports of his having been lobbied even as late as the night before the final vote. He ended up voting with the Republican majority to count the returns submitted in favor of Hayes in Louisiana, Florida, and South Carolina, and to disregard one vote on a return submitted from Oregon. Predictably, Bradley was excoriated by the Democratic press.

If the Commission's report was not rejected by Congress, Hayes would be elected by a plurality of one electoral vote -- 185 to 184. The Senate, controlled by Republicans, quickly accepted it. By now it was into late February, at a time in our constitutional history when the President was inaugurated on March 4th, rather than January 20th. Democrats in the House filibustered for several days trying to prevent the matter from coming to a vote, although however the vote came out would make no difference. Meanwhile southern Democrats in Congress were dealing with Hayes' lieutenants, suggesting a basis of compromise. If Hayes would withdraw federal troops where they remained in the south -- South Carolina and Louisiana -- they would support the selection of Hayes as President. Thus came about what is referred to as the Compromise of 1877. It was not until the early morning of March 2nd -- two days before inauguration day -- that the House finally voted and Hayes was declared elected.

Respected historians have criticized the members of the Supreme Court, and in particular Bradley, for participating in such an obviously political task as deciding the winner of a Presidential contest. But what was the alternative, so far as the nation was concerned? As I have noted, Congress itself could never hope to agree on a winner, split as it was between a Republican Senate and a Democratic House. Deep and bitter feelings were aroused in various parts of the country by the dispute, and there were threats of armed marches on Washington. If the participation of the Justices was the only realistic route to a peaceable solution, I think they may be commended, rather than criticized, for this service. They may have lowered the prestige of the Court, but they may also have saved the nation from an armed conflict.

Twenty years later, Chief Justice Melville W. Fuller would be asked to take on a different extra-judicial assignment. After the American victory in the Spanish American War, in August, 1898, President William McKinley sent Fuller the following telegram at his summer home in Sorrento, Maine:

"It would give me special pleasure if you would permit me to consider you for membership on the Peace Commission. Wire answer. William McKinley."

Fuller first wired, and then wrote McKinley in detail of his reasons for declining:

"My Dear Mr. President:

* * *

"My duty to the country lies in the discharge of my duty to the Court over which I preside and the labors of the Court are, as you know, arduous and many matters of detail necessarily devolve upon the Chief Justice. Nothing but some imperative exigency ought to be allowed to interfere in any way with the conduct of the business that we are appointed to perform and I am quite sure that the Chief Justice should not take on any additional burden. . . ."

Fuller's reasons, it may be noted, were quite different from those advanced by Jay a century earlier. His concern was entirely for the work of the Court, which he felt would suffer if his time were spent elsewhere. The role of the Chief Justice at the end of the nineteenth century was much more demanding than was that role a century earlier.

During the 1940's, several extra-judicial assignments arose from World War II.

On November 26, 1941, a Japanese task force consisting of six aircraft carriers carrying over 400 planes, two battleships, two heavy cruisers, and 11 destroyers started from its staging area in the Kurile Islands for its destination: the U. S. Naval Base at Pearl Harbor in Hawaii. At 7:55 a.m. on December 7th the Japanese planes bombed and torpedoed U. S. planes and battleships located there.

Earlier, the top Army and Navy officials in Washington sent messages to General Walter Short, the Army Commander in Hawaii, and Admiral Husband E. Kimmel, the Navy Commander there. These messages related that negotiations between the United States and Japan were going nowhere, and that Japanese military attacks against the Philippines, Thailand, or the Kra Peninsula, were expected because of the movements of Japanese troops and naval task forces.

December 7, 1941 -- Pearl Harbor Day -- is a day on which almost every one of my generation remembers exactly what they were doing when they heard the news. I was at my girlfriend's house on a pleasantly sunny day -- a rarity for Wisconsin in December. The next day all of our high school was herded into the auditorium where we sat and listened to President Franklin Roosevelt's speech declaring that December 7 was a "date that would live in infamy," and asking Congress for a declaration of war against Japan.

More than 2000 American troops and civilians were killed in the raid, 140 planes destroyed on the ground, two battle ships sunk, and four others damaged. The response of the American public in the immediate aftermath of the attack on Pearl Harbor was outrage against Japan mixed with dismay at the lack of preparedness of the United States forces at Pearl Harbor and in the Philippines. Senator Robert Taft of Ohio, a leader of the isolationist wing of the Republican party, called for a congressional investigation of the situation, and several of his colleagues joined him. Roosevelt was alarmed by the prospect of such an investigation; release of the cable traffic would alert the Japanese to the fact that the United States had broken the Japanese code, and any open-ended investigation could provide fodder for his political opponents in the 1942 elections.

President Roosevelt wished to head off any Congressional investigation, and so created a Presidentially appointed Commission consisting of five persons. Associate Justice Owen Roberts of the Supreme Court was to be chairman, and the remaining members were senior military officers. Their charge was "to ascertain and report the facts relating to the attack made by Japanese armed forces upon the territory of Hawaii on December 7, 1941."

The Commission went to work immediately, meeting in Washington and Hawaii. In all, the Commission examined nearly 150 witnesses, and received numerous documents. On January 23, 1942, the Commission submitted a 21-page report to the President which was released in full to the public. The report is surprisingly readable for a government document.

The Commission found that Admiral Kimmel and General Short had been repeatedly warned of the possibility of a surprise Japanese attack, but had failed to work together to prepare an adequate plan of defense. The failure of Kimmel and Short to confer with one another about joint defense plans in the light of these warnings was found to be a dereliction of duty. Each commander had committed errors of judgment in not recognizing the seriousness of the situation.

Numerous critics of the report of the Roberts Commission have sought, not so much to vindicate Kimmel and Short, but to implicate the Washington high command, from the President on down. The more extreme of these critics seek to show that Roosevelt not only provoked the attack on Pearl Harbor, but actually welcomed it, and, indeed, perhaps had advance knowledge of it.

A more reasonable school of critics faults the military command in Washington for having itself failed, in the face of an intercepted Japanese cable instructing Japan's emissaries in Washington to break diplomatic relations, and its embassy to burn all documents, to immediately warn the commanders in Pearl Harbor of the sharply increased likelihood of war -- not at some time in the near future, but now.

That the Roberts Commission, including as it did four high-ranking military officers in its membership of five, and deliberating within weeks after Pearl Harbor, would criticize the military command in Washington was unlikely to say the least. But the very summary nature of the clean bill of health given to the Washington brass by the Report does not seem to have been the subject of any careful investigation by the Commission.

Roberts did not sit during the Supreme Court's argument session in January, 1942. Harlan F. Stone, who had become Chief Justice six months earlier, expressed his irritation at Roberts' absence and at Justice James F. Byrnes' spending time at the White House consulting on wartime economic planning. He wrote his son:

"I am struggling along with the work of the Court as best I can, with one and a half men away. . . . Roberts has returned from Hawaii, but I think he is still busy preparing his report. I am hoping that we shall get him back on the job soon."

It was to be a bad year for Stone. In June he would read in the press of Associate Justice Frank Murphy's receiving a commission as a Lieutenant Colonel in the Army, and he would soon receive complaints from members of Congress as to the legality of Murphy's holding two federal positions. A month later, he would confront the issue of extra-judicial duties directly. President Roosevelt asked him to conduct an inquiry into the problem of rubber production for the war effort. The need for such an inquiry was prompted by a politically charged dispute both within the administration and in Congress as to the best way to produce synthetic rubber. Stone replied somewhat effusively to the President three days later:

"Dear Mr. President:

. . . . Personal and patriotic considerations alike afford powerful incentives for my wish to comply with your request that I assist you in arriving at some solution of the pending rubber problem. But most anxious, not to say painful, reflection has led me to the conclusion that I cannot rightly yield to my desire to render for you a service which as a private citizen I should not only feel bound to do but one which I should undertake with zeal and enthusiasm. . . .

"A judge, and especially the Chief Justice, cannot engage in political debate or make public defense of his acts. When his action is judicial he may always rely upon the support of the defined record upon which his action is based and of the opinion in which he and his associates unite as stating the ground of decision. But when he participates in the action of the executive or legislative departments of government he is without those supports. He exposes himself to attack and indeed invites it, which because of his peculiar situation inevitably impairs his value as a judge and the appropriate influence of his office.

"We must not forget that it is the judgment of history that two of my predecessors, Jay and Ellsworth, failed in the obligations of their office and impaired their legitimate influence by participation in executive action in the negotiation of treaties. True, they repaired their mistake in part by resigning their commissions before returning to their judicial duties, but it is not by mere chance that every Chief Justice since has confined his activities strictly to the performance of his judicial duties. . . ."

Less than three years later, the issue of Supreme Court Justices taking on extra-judicial duties presented itself in as sharp a focus as can be imagined. Franklin Roosevelt died at Warm Springs, Georgia, on April 12, 1945. He was succeeded by his Vice President, Harry S Truman. The allies in Europe were sweeping to victory -- "VE" Day was less than a month away. In late April, Truman asked Associate Justice Robert H. Jackson of the Supreme Court to take on the job of Chief U. S. Prosecutor before an international tribunal to try high German officials accused of war crimes. Within days, Jackson wrote to the President accepting the position and by an executive order dated May 2nd, Truman appointed Jackson as Chief Prosecutor.

Jackson took on an enormous responsibility, not just as an advocate before the tribunal, but also as a de facto ambassador and administrator. There had never been such a tribunal before. The United States would prosecute -- and judge ?? along with its wartime allies Great Britain, Russia, and France. Agreement as to which country would do what, and when, had to be negotiated. A sizable and highly competent staff had to be assembled on short notice, to depart for war-torn Europe for an indefinite period of time.

Jackson made his first of several trips to Europe in late May to discuss preliminary matters. This was before the age of jet propulsion, and travel was by propeller plane. These planes could not cross the Atlantic Ocean without refueling. Thus a flight from Washington or New York to Paris, like Jackson's, would stop first at Stephenville, Newfoundland, and then at Santa Maria in the Azores, before the final leg to its destination. Agreements were duly negotiated among the allies over the summer. Nuremberg, Germany, was designated as the place for the trials to be held.

These trials began in late November, 1945, and Jackson was the first to make an opening statement to the tribunal. He spoke for an entire day, and won high praise from the American reporters covering the event. Several months later, he undertook the principal cross-examination of Herman Goering, the highest ranking German official on trial. Press reviews of this effort were mixed. After all of the evidence was in, in late July, Jackson also made the first of the closing speeches for the prosecution. On August 31st, the tribunal recessed to consider the cases against the defendants. Its judgment was handed down a month later: of the twenty-two defendants, twelve were sentenced to hang, three to life imprisonment, four to terms ranging from ten to twenty years, and three were acquitted. Jackson understandably regarded his participation in the Nuremberg Trials as the crowning achievement of his career.

Criticism of the Nuremberg Trials focused on two issues. The first was whether a Justice of the Supreme Court should participate as a prosecutor in such a trial. The second issue was whether or not this sort of trial -- not only the prosecutors, but also the judges -- coming from the victors, would be in fact, if not in form, a "kangaroo court." But this criticism softened as the Court amassed evidence of the evil intentions and deeds of many of the defendants, and also because three of the defendants were acquitted.

Some of Jackson's own colleagues joined in the criticism. Justice William O. Douglas (between Jackson and whom no love was lost) opined in memoirs published many years later:

"[Jackson] was gone a whole year, and in his absence we sat as an eight-man Court. I thought at the time he accepted the job that it was a gross violation of separation of powers to put a Justice in charge of an executive function. I thought, and I think Stone and Black agreed, that if Bob did that, he should resign. Moreover, some of us -- particularly Stone, Black, Murphy and I -- thought that the Nuremberg Trials were unconstitutional by American standards."

Whatever the merit of these objections, the Nuremberg Trials were surely superior to the summary court martial proceedings favored by some members of the administration. In private, Stone was vituperative; writing to a long-time friend, he said:

"Jackson is away conducting his high-grade lynching party in Nuremberg. . . . I don't mind what he does to the Nazis, but I hate to see the pretense that he is running a court and proceeding according to common law. This is a little too sanctimonious a fraud to meet my old-fashioned ideas."

Stone's biographer, Alpheus T. Mason, sums up Stone's more considered view this way:

"For Stone, Justice Jackson's participation in the Nuremberg Trials combined three major sources of irritation: disapproval in principle of non-judicial work, strong objection to the trials on legal and political grounds, the inconvenience and increased burden of work entailed. Even if the Chief Justice had wholly approved the trials themselves, he would have disapproved Jackson's role in them. If he had felt differently about the task in which Jackson was engaged, he might have been somewhat less annoyed by his colleague's absence."

It is difficult not to sympathize with either Jackson's or Stone's views. Jackson, speaking to the New York State Bar Association in 1947, said that his Nuremberg role "was the supremely interesting and important work of my life and an experience which would be unique in the life of any lawyer." One of Stone's complaints was that he first learned of Jackson's acceptance of the role of prosecutor when it was announced by President Truman. One would think that Jackson would have at least consulted Stone before accepting the job; not that Stone had any authority to forbid his taking it, but that advance notice would have made it more palatable to Stone even though he still disagreed.

In the Presidential election of 1952, Republican candidate Dwight D. Eisenhower defeated Adlai Stevenson, the Democratic candidate, ending twenty years of drought for his party. The next year Fred M. Vinson, who succeeded Harlan Stone as Chief Justice, died, and Eisenhower appointed Earl Warren of California to succeed him.

Warren grew up in Bakersfield, California, and after graduating from law school at the University of California became the prosecuting attorney in Oakland. From that post he was first elected Attorney General of the state, and then three times Governor of California. Warren had little experience as a practicing lawyer, and he came to the Court at a very difficult time. It was to hear the school desegregation cases, Brown v. Board of Education, argued for the second time. It had been sharply divided after the first argument, but Warren throughout the term persuaded initially reluctant colleagues to make his opinion for the Court in the case unanimous. It held that legally enforced racial segregation in public schools violated the Equal Protection Clause of the United States Constitution.

In 1960, Democratic Presidential candidate John F. Kennedy, Jr., narrowly defeated Republican candidate Richard Nixon. Kennedy was the first Roman Catholic and the second-youngest person to occupy the nation's highest office. He and his wife brought a sense of youth and elan to Washington. The nation was stunned when on November 22, 1963, he was assassinated while riding in a motorcade in Dallas. Lee Harvey Oswald was arrested the same day, and charged with the crime. The nation's grief turned to amazement when Oswald, being televised in the custody of the Dallas police, was shot and killed by a local bar owner named Jack Ruby. Rumors of all sorts began to fly.

A week after the assassination, Chief Justice Warren was contacted by the Deputy Attorney General, Nicholas Katzenbach, and the Solicitor General, Archibald Cox, to inquire if he would serve as Chairman of a bipartisan commission that the new President, Lyndon B. Johnson, would create to investigate the assassination. Warren tells of his initial response in his Memoirs:

"I told them I thought the President was wise in having such a commission, but that I was not available for service on it. Because of past experiences of that kind in the history of the Court, we had discussed the propriety of taking on extrajudicial appointments and, although we had never voted on it, I was sure that every member of the Court was of the opinion that such appointments were not in its best interests. I told Katzenbach and Cox that I had more than once expressed myself to that effect for several reasons. First, it is not in the spirit of constitutional separation of powers to have a member of the Supreme Court serve on a presidential commission; second, it would distract a Justice from the work of the Court, which had a heavy docket; and, third, it was impossible to foresee what litigation such a commission might spawn, with resulting disqualification of the Justice from sitting in such cases."

Later the same day, Warren was summoned to the White House to have his arm twisted by Johnson. The President was successful. He said to the Chief Justice:

"'You were a soldier in World War I, but there was nothing you could do in that uniform comparable to what you can do for your country in this hour of trouble.' He then told me how serious were the rumors floating around the world. The gravity of the situation was such that it might lead us into war, he said, and, if so, it might be a nuclear war. . . . I then said, 'Mr. President, if the situation is that serious, my personal views do not count. I will do it.'"

The Warren Commission included a bipartisan group of well-known, current or former public officials.

The following September, the Commission produced an 888-page summary of its findings known as "the Warren Report." The Commission concluded that Oswald acted alone in killing the President and that Ruby acted alone in killing Oswald.

Although the Warren Report was supported by 26 volumes of evidence and testimony, from almost the moment it was issued it came under wide criticism from a variety of sources. Hundreds of books and articles have attempted to prove that the Warren Commission got it wrong and that President Kennedy's assassination was the result of a conspiracy. The alleged participants in the conspiracy range from the C.I.A. and the F.B.I. to anti-Castro Cuban groups to the mafia.

The Warren Commission concluded that President Kennedy was struck by two bullets, both fired from above and behind the President. The Commission's conclusion that there was only one gunman and that there were only two bullets that struck the President and Texas Governor John Connolly, who was also injured, involved what has been dubbed the "magic bullet" theory. The Commission found that the first bullet that struck President Kennedy entered his upper back, exited through his neck, then struck Governor Connolly, who was sitting in front of the President, entered just below Connolly's right armpit, exited his right chest, struck and shattered his right wrist and ended up in his left thigh.

The existence of the Zapruder film, taken by amateur photographer Abraham Zapruder, reinforced skepticism in the Warren Commission's conclusions. The film shows the President's head being thrown backward as if a bullet had struck him in the front of the head. Added to this were the witnesses who claimed to have heard shots or seen a puff of smoke coming from the "grassy knoll" in front of the President.

Amid the mounting criticism of the Warren Report, Chief Justice Warren refused to respond or defend the Report, simply telling his staff that the Report spoke for itself. In 1967, according to a Gallup Poll, 60% of Americans doubted that Oswald was the lone gunman in Dallas.

If we step back to review the examples of Supreme Court Justices performing extra-judicial duties, they were obviously different as to the time at which they occurred, the nature of the assignment, and the effect that the assignment had on the work of the Court. It would be unthinkable now for a Chief Justice to leave not only the Court, but the United States, for an entire year to undertake a diplomatic mission in a foreign country, as both Jay and Ellsworth did. But the Court was a totally different institution then than it was even a century later. And in a brand new nation of only three or four million people, there was much less choice available to the President than there would be at later times.

Passing over the Justices who served on the Electoral Commission of 1877 for the present, Chief Justice Fuller was surely right in declining appointment to the Peace Commission. Indeed, there were cases which would come before the Court involving construction of the Treaty drafted by the Peace Commission, which might have required Fuller to disqualify himself.

Owen Roberts' service on the Pearl Harbor Commission required that he miss one of the seven monthly argument sessions which take place during each annual term of the Court. The Commission served an important national purpose -- to examine as soon as possible whether the loss of life, ships, and planes might have been at least partially preventable. The work of the Commission could not have been postponed to the summer recess of the Court and still accomplish its desired purpose. The report was of great interest to the American people, and did generate controversy in later years.

Stone was obviously correct in declining Roosevelt's request to referee a politically charged dispute about how best to produce synthetic rubber. He had no special knowledge of the subject matter, and whatever his conclusion it would be politically attacked by one side or the other. As a sitting judge, he would not be in a position to publicly defend it.

Jackson's service as Chief U. S. Counsel at Nuremberg was the most harmful in its effect on the Court of any extra-judicial task in modern times; he missed an entire annual term of the Court. His stature as a jurist undoubtedly contributed to the success of the Nuremberg Trials; but over and above that this role was "right up his alley" -- the use of the spoken and written word -- in a way that it would not have been for his colleagues or most other judges. There was also an element present here and not in the other cases described: it was an advocate's dream! Earl Warren, for example, accepted the chairmanship of the Warren Commission only after extraordinary importuning from President Johnson; there is surely no reason to believe that he wanted the job. Jackson very much wanted the job he was offered; the temptation to which he succumbed was far greater than in the other cases. He accepted with alacrity, thereby recognizing the possibilities of the tendered position, but also showing little regard for the effect of his acceptance on his colleagues and on the Court itself.

Turning back now to the Justices who served on the Electoral Commission of 1877; should they have accepted this assignment? Even before the first meeting of the Commission, each one of them could surely see that the Commission's work would be the subject of violent and prolonged criticism from the party against whom it ruled. Members of the Court, if not the Court itself, would participate in a decision that had enormous political consequences. They would be deciding not just who was at fault at Pearl Harbor, or who assassinated John F. Kennedy; they would be deciding who would be the next President of the United States.

But the consequences of refusal would be equally momentous. Until Congress passed the law creating the Electoral Commission, realistic threats of violence -- of armed partisans marching on Washington -- were heard from several quarters. It was evident that Congress, divided as it was, could not resolve the dispute by itself. But because public opinion gradually came to prefer a negotiated settlement, Congress managed to enact a measure which was grudgingly accepted by most of the partisans on each side. The law expressly named four of the Justices who were to be members; if they refused, the law contained no authorization for selection of any alternates. The Commission would be a dead letter, and the country would be thrown back to some form of either violence or political Russian roulette.

Critics, including Earl Warren, have expressed the view that the Justices serving on the Electoral Commission demeaned the Court. But here one must be reminded of Lincoln's comment when he was accused of acting contrary to the Constitution: "Shall I save the Constitution, but lose the nation?" Four of the five Justices, according to Garfield, would have rather this cup passed from them, but the consequences of their refusal would have been grave, if not entirely foreseeable. They may have tarnished the reputation of the Court, but they may also have saved the nation from, if not widespread violence, a situation fraught with combustible uncertainty. I believe that in accepting membership on the Commission they did the right thing.

Thank you.



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