28 Sept 2020
I hear in the news absurdly false claims: that it is not “legitimate” for Trump to nominate someone now to the Supreme Court.
Note: win or lose in the November election, and presuming he remains alive for a few more months, D J Trump remains our President at least until 20 January 2021—win or lose the election, he holds the office and all of its powers, prerogatives, and duties under law at least until 20 January 2021, and longer if he wins the election.
That no few members of the Supreme Court were nominated and place on the Court right at the end of a President’s term seems to escape folks in the media and other partisans.
Consider just one case. In November 1800, V-P Thomas Jefferson defeated then President John Adams for President. Adams was a Federalist; Jefferson the founder of the “Republican Party” (which became the “Democratic-Republican party,” and then the “Democratic Party,” as it is known today.
Adams was defeated, but his coup promoted Federalist interests for about 35 years. Just before leaving office, Adams appointed his Secretary of State, John Marshall, to be Chief Justice of the Supreme Court. That appointment was made on 20 Jan 1801, and Marshall was confirmed and began serving as Chief Justice a week later, 27 Jan 1801. He remained Secretary of State as well, until Adams’ term as President ended, and Jefferson was inaugurated as our 3rd President on March 4, 1801.
So Marshall was nominated for Chief Justice and confirmed under a defeated President, at the end of his term. Never read that Jefferson claimed it was “illegitimate,” because Adams remained President until the day Jefferson was inaugurated.
The consequences were enormous for our history. Chief Justice Marshall wrote the opinion for Marbury v Madison in Feb 1803. In that decision, Marshall did what was NOT explicit in the Constitution: he used the Supreme Court to declare an act of Congress illegal under the Constitution. There is no such power given to the Supreme Court in the Constitution; this was a major political coup in our history: the Supreme Court made itself supreme over acts of Congress.
Such is the legacy of Adams post-defeat appointment of John Marshall as Chief Justice. I think that he served about 35 years—the longest serving Chief Justice in our history, and probably the most consequential. He was succeeded in that office by Roger Tawney of Maryland, who wrote the dreadful Dred Scott decision of 1857—the case that drew Lincoln back into politics: blacks can be property, but they are not and cannot be “persons” under the law. Quoting Lincoln’s great Second Inaugural of 1865, “And the war came.”
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