'Abraham Lincoln and the Supreme Court': The 2009 Sir David Williams Lecture - John G Roberts Jnr

Chief Justice I need he said Lord Chief Justice ladies and gentlemen it gives me great pleasure to welcome everyone present to the lecture in the series which have been held in Cambridge in honor of Sir David Williams Sir David is present as you'd expect and so is John Noland and Michael Russ both of whom have been generous benefactors of these series of lectures and we are very grateful to them each of these lectures has been given by a hugely distinguished legal figure together those lectures are a testimony of how highly the legal world regards Sir David however the lecture tonight is an extraordinary event even by the standards of those previous lectures like the previous lectures there being it's being held in honor of Sir David in the tradition the lecture is being held as a part of the celebrations for the eighth anniversary of the founding of this great University then it's been given by the Chief Justice of the United States on the subject of Abraham Lincoln whose bicentenary it is and the other aspect of the lecture is that President and the Supreme Court in the very year in which there is to be a new Supreme Court of the United Kingdom and it's going to open its doors for the first time as the final Court of Appeal of the United Kingdom this October although this may not be immediately apparent there are links between the events which I - which are just referred like Cambridge University our legal system can trace its history over eight hundred years but the until this year it has apparently developed successfully without the need for a Supreme Court the Younger system of the United States has led the common law world industry in demonstrating what a Supreme Court can contribute the explanation for the recent constitutional changes which have taken place in this country which in turn resulted in the creation of our Supreme Court could be said to be the developments which have taken place in our administrative law over the recent periods and which resulted in judicial review undoubtedly becoming perhaps one might say an irritant to successive governments and thus a catalyst for change identifying the commencement of those developments is difficult but personally for me and possibly also for David Williams they are linked to the Justice ourselves review of administrative law in 1978 I mentioned that review in particular because it was the first time I had the privilege and I so regarded it of meeting and getting to know David he or was already at that time one of our foremost administrative lawyers well whilst I was about to become a newly appointed High Court judge but I did share with David his enthusiasm for administrative law and indeed I was inspired by his example as a administer raw has developed so has the stature of Sir David he's now a legal institution around the world as an example just last year he was the fulcrum of a remarkably successful conference income in Hong Kong convened by this university and the Chinese University of Hong Kong like this event that event was also choreographer by Christopher Forsythe and I would like to pay credit to him for what a remarkable contribution he made first at Oxford and now in this university in the field to which I've referred David in addition to being a regular visitor to Hong Kong was a regular visitor to many other parts of the world and there are many in the audience who have made the journey to be here in honor of Sir David one of the ways in which he became an institution in the United States worthy of anglo-american legal exchanges and those are our exchanges which fed our interest in public law and constitutional law which at that time was quite a barren area in still in the United Kingdom and the series of these lectures have come from jurisdictions as far as away as New Zealand and they've also been at least two other lecturers from the United States Supreme Court they were to give the lectures because of their esteem in which their intern held to held Sir David today we have the most senior judge in the United States talking on the relationship between the United States Supreme Court and the president such a relationship and a president such a relationship is you have lessons for us in respect of our Supreme Court and by a coincidence I haven't heard any comment about this before our new court is has outside it a statute of Abraham Lincoln its presence there was not without controversy I'm happy to say not because anyone thought there shouldn't be a statute of that President to mark the completion of a hundred years of peace among the english-speaking people but there which statute should be chosen should it be the one for which the sculptor George Barnard was responsible or should it be the one created by another sculptor saying Saint Gaudens this come to controversy was not of the same dimension or of the same importance has the controversy over whether there should be a Supreme Court of the United Kingdom or whether the House of Lords should remain the home of our most senior court at the time of the Constitution reform act 2005 there was as it proceeded through Parliament many matters on which there was not entirely you name unanimity among politicians and the judiciary and one of those were certainly whether the Supreme Court should be created many of the Law Lords were relaxed to depart from the Law Lords corridor they welcomed the opportunity that their close proximity to the legislature gave them to be involved in the development of the law and opportunity which many members of the House of Lords political nor legislative chambers the late legislative chamber were also welcomed it was pointed out that the separation of the different arms of government had never been part of our tradition it was also pointed out that before the president United States Supreme Court went to its magnificent business building there had been a in fact a presence of that August Court in Congress today there is no longer controversy over the presence of an Abraham Lincoln outside the new Supreme Court I hope that the time will soon come when the same can be said about the presence of the Supreme Court in Parliament the position of the Supreme Court and government should not be a matter of controversy and we are fortunate that the Chief Justice of the United States who was born as recently as 1955 and became Chief Justice in 2005 has already been immersed not only in that country's u judicial system but also in the workings of government he'd been a law clerk after he'd left Harvard with the great distinction first of all obtaining an a B come Lord em and then obtaining a deed DJ Mag come Lord and was that the correct answer yes he used a law clerk to two very distinguished judges one was judge friendly and the other was associate justice rehnquist before he became chief justice his immediate superior he had been special assistant to the Attorney General associate counsel to President Reagan White House Counsel and principal deputy SEC a Solicitor General in the US Department of Justice in that capacity I understood that he argued 39 different cases before the Supreme Court and the statistics show that he won 25 of them appearing as I did for this country's government for five years I wish I could claim I had the similar statistics but this was the time of law Denning and he had other views the Chief Justice has also been the judge on the Court of Appeals for the DC Circuit the court in the United States were steals with by far the majority of what we would call public law or administrative law cases he also for a substantial period was in private practice and again during that period he appeared before the Supreme Court said what a perfect preparation for the high office he now hurls Chief Justice we welcome you to give us your insight into the relations between President Abraham Lincoln and the Supreme Court thank you thank you very much thank you thank you Lord wolf for that generous introduction and thank you all for that very warm welcome I am honored by the invitation to deliver the Sir David Williams lecture which has attracted so many distinguished speakers over the past eight years I am reminded of the American general who early in his career as an officer vowed that he would not accept any honor that he had not earned he later found it necessary to revise his thinking and vowed not to accept any honor that someone had not earned now I appear before you this afternoon in that spirit someone must have earned this honor and I am happy to accept it I feel especially privileged to deliver the lecture this year which of course marks the a hundredth anniversary of the founding of this University I understand that this great institution had its beginnings eight hundred years ago when scholars migrated to Cambridge to escape the hostile townspeople of another place today when I look out at the University's remarkable buildings and resources and consider the school's rich heritage I'm reminded that as so often in history the foresight and wisdom of a few yield so much the University that began so humbly eight centuries ago now possesses world-renowned halls and well-stocked libraries but its stature is one of the world's great institutions continues to reside in those individuals who provide leadership scholarship and service to the community this lecture series honors one of those individuals sir david williams who has earned well-deserved praise both as an inspiring academic administrator and a distinguished professor this university has doubtless benefited greatly from Sir William service as Vice Chancellor who also happens to be learned in English law now in my country the path to leadership including the office of president is often through the discipline of the law in this year as Cambridge celebrates it eight eight hundredth anniversary the 800th anniversary of its founding the United States celebrates the bicentennial of the birth of Abraham Lincoln who one historian has described as quote more than any other chief executive in the nation's history a lawyerly president we celebrate the anniversary of Lincoln's birth not because he was a great lawyer he was not but because but because he was a great leader I believe however that his success is a leader far beyond what any of his contemporaries could have imagined was in large part because his life as a leader was grounded in law now in recognition of Sir David's contributions to both leadership and the law I would like to offer some reflections on Abraham Lincoln the lawyer and his relationship to the Supreme Court when I first visited London I was surprised to find as Lord Wolfe has noted a larger-than-life statue of Abraham Lincoln at Westminster the statue was presented in 1920 as a gift of the American people to the British people in recognition of a century of peace between our two nations it was our way of saying that we regarded that business of the burning of the White House in 1814 as water under the bridge now in accepting the statue Prime Minister Lloyd George said and I quote I am not sure that you and America realized the extent to which Lincoln is also our possession and our pride in his life he was a great American he is an American no longer he is one of those giant figures of whom there are very few in history who lose their nationality in death Abraham Lincoln belongs to the common people of every land now Lincoln's lineage has been traced to English settlers who arrived in Massachusetts during the 17th century but Lincoln in his youth could not have been more removed from British influence he was born in Kentucky two uneducated farmers unlike George Washington John Adams and other members of the American founders generation who were born British subjects and lived within a British dominated world Lincoln was the product of the American frontier he grew up in the parsley settled but quickly growing states of Kentucky Illinois and my home state of Indiana America's founding generation idealistically saw the unexplored West as a land of unbounded potential but the promise and possibility could not have been so obvious to young Lincoln he described himself as quote a strange friendless uneducated penniless boy Lincoln emerged from the frontier into public life almost entirely through his own initiative he stood out as a young man and not just because he was six feet four inches tall one of his biographers described him as quote rail-thin with elongated arms and huge feet and recounted that he flapped around like some enormous immature bird when he walked but if he was an odd duck he was a brilliant one who obtained an education largely by educating himself in 1837 he gained admission to the bar good moral character was then is now a prerequisite to admission but in that place in time it was pretty much the only one and hard enough to find but in any event Lincoln threw diligence and Industry became a respected Illinois lawyer in 1846 he came to Washington as a congressional representative but he returned to his law practice in Illinois after one term in 1858 he lost a hotly contested bid for the Senate against the then renowned Stephen Douglas but his debates with Douglass brought him to national attention two years later he obtained the Republican nomination for president and fulfilled Walt Whitman's call for a new quality of leadership he became the first president born outside the original thirteen states at a time when the nation teetered on the verge of disintegration Lincoln thrust into the role of a wartime president won re-election in 1864 but was assassinated tragically within six weeks of his inauguration and within a week of general robert e lee's surrender at Appomattox which effectively ended the civil war now in the course of his career Lincoln saw the Supreme Court from three different perspectives as a private attorney Lincoln appeared before the court as an advocate as a candidate for the Senate his campaign turned on criticism of the courts controversial decision in Dred Scott versus Sanford and as President Lincoln found himself subjected to the constitutional constraint of Supreme Court judicial review and at the same time he exercised his constitutional power to nominate and appoint individuals to serve on the court in each of those instances Lincoln's contemporaries might have readily concluded that Lincoln was not particularly successful in his dealings with the court but in each encounter with the court he displayed what we have come to regard as Lincolnesque virtues that illustrate why he is so widely admired among Americans where Lincoln grew up in Indiana there was no clearly marked path to the Supreme Court Lincoln's biographers recount that he first developed an interest in the law as a teenager by traveling to the much more modest courthouse in Boonville Indiana to watch civil and criminal trials in small Western communities of that sort the local courtroom was one of the few sources of entertainment a Lincoln eventually decided to pursue law as a vocation and like many lawyers of the early 19th century he took his lessons from Blackstone but Lincoln did not come to Blackstone Blackstone came to him before taking up the law Lincoln ran a small store where he bought and sold goods as an accommodation to a settler who was moving farther west he agreed to buy an old barrel filled with discarded items Lincoln later told how he emptied emptied the barrel and found buried at the bottom a complete edition of Blackstone's commentaries in short Lincoln found Blackstone by literally scraping the bottom of a barrel and that discovery launched his legal career like almost every lawyer in America of that era Lincoln did not attend college or law school he read legal treatises and apprenticed with other lawyers relying on self education and an extraordinary memory Lincoln once said that he had a mind like steel it was difficult to make a mark on it but once a mark was etched into it it was hard to remove he was not only self educated but continuously self educating mastering books as he acquired them ever increasing his eclectic canon Lincoln was born in the same year as Gladstone and Tennyson and on the same day as Charles Darwin and he had a special attraction to British authors and poets including Thomas Grey Shakespeare and Lord Byron he savored learning but his modest frontier upbringing also taught him how to communicate with jurors regardless of class or education he grew up in communities where people were already isolated in so many ways and they simply could not afford to be insular with each other he probably learned early in life the value of taking careful measure of friends and neighbors and getting to the heart of their concerns this skill not only enabled him to make a case understandable to jurors but also to allow allowed him to find a basis for compromise and to achieve settlement wherever possible on one renowned occasion a client asked Lincoln to represent him to recover five dollars that he had loaned to a neighbor Lincoln told the man that the cost of the suit would exceed the $5 and he should drop it but the man said he wanted to teach the debtor a lesson so Lincoln agreed to handle the matter and said his fee would be $10 payable in advance Lincoln then gave the debtor $5 with which to repay what he owed and kept the rest Lincoln never traveled to England but given his sociable nature his keen intellect and his good sense of humor he would have been good company at one of the great English Inns of Court including the one that shares his name Lincoln though is an unlikely descendant of that Inns reputed namesake Henry delacey 3rd Earl of Lincoln and he surely lacked any aristocratic airs on one occasion Lincoln met an English aristocrat who expressed astonishment that Americans shined their own shoes Lincoln replied with gentlemen in England not do that the Englishman answered certainly not Lincoln's response then whose shoes do they shine in any event like many American litigators of his day Lincoln's career took him to a different sort of in Lincoln matured in his profession by traveling on circuit with judges as they went from County Courthouse to County Courthouse judges set out on circuit as soon as the winter thaw made the roads passable and lawyers followed in their wake sharing lodging with a rough crowd in the town taverns as a result of his circuit riding Lincoln soon developed a widespread reputation among his contemporaries as one of the best jury lawyers in Illinois he was extraordinarily industrious in a span of 24 years he handled more than 5000 cases and appeared more than 200 times before the Illinois Supreme Court Lincoln has the reputation as a trial lawyer whose homespun nature won over the uneducated juries but the record of his one appearance before the Supreme Court of the United States shows that he was also a sophisticated appellate attorney who could present technical arguments to a learning bench Lincoln's appearance as an advocate before the Supreme Court grew out of an exceedingly technical dispute bearing the name Louis against Louis the plaintiff had purchased a tract of land but was ejected from a portion of it because of a defect in the title the plaintiff sued the seller for damages but the seller had died and the administrator of the seller's estate whom Lincoln represented argued that a state statute of limitations barred the suit the statute of limitations however had an exception that would extend the time period for filing the suit while the plaintiff was out of state now this already sounds like an exam question but there is more the state legislature had repealed the exception and the narrow question before the Supreme Court was the effect of the repeal did the statute of limitations run from the date that the cause of action accrued in which case the limitation period had run and Lincoln's client would win or did it run from the date of the repeal of the exception in which case the suit was timely and the action against Lincoln's client could proceed now a transcript of Lincoln's argument does not exist but at the Supreme Court we have in our collection Lincoln's handwritten notes for this case the Lincoln was serving his one term in Congress at the time it was quite common for members of Congress to go down to the basement of the Congress building where the Supreme Court's at Lincoln did not approach his argument as a politician or in any way casually his notes reveal and organized an analytical mind a lawyers mind Lincoln methodically set down the relevant dates of the land dispute he laid out the structure of his argument and he listed with case descriptions the relevant Supreme Court Authority even more interesting however was the portion of his notes dealing with his argument on the interpretation of the statute of limitation and setting out his statutory construction argument Lincoln first wrote in an impeccable handwriting examined nature and objects of acts of limitation but he then crossed that out and replaced it with the note examined the statute itself its language and its provisions as the taking effect he underscored the word language now some of my colleagues might cite that change is evidence that Lincoln like Paul and the road to Damascus underwent a life-changing conversion to textualism but I think it more likely that Lincoln was simply a pragmatic advocate he examined the available arguments and concluded that a textual argument would most likely advance his clients case but even if that was his best argument it was not good enough the court in an opinion authored by my unfortunate predecessor Chief Justice tani ruled against Lincoln's client Tawney relied not on the statutes text but on the objects and purposes of the statute this would not be the last time that Lincoln and Chief Justice tani would find themselves at odds Lincoln did win the vote of justice McLain who urged in dissent the Chief Justice Tawny's decision effectively overruled controlling precedent and this would not be Lincoln's last encounter with justice McLane either so Lincoln like many very good lawyers lost his one and only case before the supreme the case was of course not of great public importance then or now but the case reveals Lincoln's character as a lawyer he was a disciplined craftsman who took great pride in his work regardless of whether the stakes were great or small he was unsuccessful in securing the desired result but he did not fail for lack of effort or ability he represented his client with zeal and conviction and at least as can be judged from his notes and the work that went into him then he demonstrated the diligence clarity of thought and good judgment that distinguishes great lawyers on both sides of the Atlantic now Lincoln came to national attention because of his campaign against Steven a Douglas for a seat in the United States Senate the central issue of that election was slavery Lincoln had long believed that slavery was morally wrong but he saw legal and practical impediments to its immediate abolition he believed that slavery could be put on a course of eventual extinction if Congress refused to allow slavery in the western territories that in the future would become States Douglass by contrast was untroubled by the moral question and had voted as a senator to allow new states to choose for themselves whether to allow slavery during the Senate race the Supreme Court weighed in on this volatile issue through its decision in Dred Scott versus Sanford the greatest inflicted self-inflicted wound on the court Dred Scott was a slave who brought suit in state court claiming that his servitude was extinguished as a matter of state law because his owner had taken him to federally owned territory where slavery was unlawful the state courts rejected that suit and stopped and brought a federal suit pursuing his claim the Supreme Court could have decided the case on a number of narrow grounds instead the court used the case as a vehicle to rule broadly as a matter of constitutional law that Congress lacked the power to prohibit slavery in the territories Chief Justice tani wrote the majority opinion over the strong dissents of justices MacLean and Curtis tardy believed that the Supreme Court could resolve the political issue of the era by the citing it in the judicial arena as a constitutional question placing it beyond the reach of the political process instead of course the court's decision created a public uproar slaveholders extolled it while abolitionists declared that it was in the words of one editorial entitled to just as much moral weight as would be the judgment of a majority of those congregated in any Washington Barbara tawny had in fact deepened the public division over slavery and placed the nation on a course toward civil war now Lincoln's opponent Stephen Douglas was quick to embrace the Dred Scott decision as a political weapon and he publicly challenged his Republican opponents including Lincoln to accept the court's ruling as the law of the land Lincoln responded in a way that would be removed remarkable today he did not rush to the podium to deliver a quotable soundbite nor did he huddle with political handlers to determine what he should think rather Lincoln went to the Illinois Supreme Court's law library and studied the issue personally examining the court's decision and the relevant legal authorities and historical materials he was after all a lawyer and it was a legal document at the center of the dispute two weeks later after two weeks of study he made a public appearance and explained in the scholarly address why he thought the Dred Scott decision was wrong Lincoln's public statement demonstrated the same craftsmanship that he had applied as a lawyer on behalf of a private client in Lewis against Lewis he first described the court's ruling and expressed his respect for the court and its authority to render conclusive decisions he then explained why I thought the court was wrong he noted that the court had the power to overrule its decisions and he urged the court to do so in the Dred Scott case in the future now under Lincoln's analysis he basically contended that the Dred Scott decision rested on a fundamental mistake of historical fact Chief Justice tani had concluded that America's founders had intended to extend the rights they embraced in the Declaration of Independence and the Constitution only two persons of European origin a Lincoln responded that this conclusion was inconsistent with the broadly frame words that the founders chose the logic of the rights they espoused and much of the founding generations actual practices Lincoln placed special emphasis on the Declaration of Independence and its statement of inalienable rights which he embraced as continuing inspiration or as he said in his speech progressive improvement in the condition of all men everywhere in Lincoln's view tawnie's crabbed view treated the declaration as having no continuing importance as if it were again from the words of his speech old wadding left to rot on the battlefield after the victory was won just as lincoln the lawyer was a craftsman lincoln the candidate was a statesman the Court's Dred Scott decision had caused a national outpouring of emotion and invective but Lincoln unlike countless others at the time responded with restraint he did not rush to condemn the court for political gain nor did he engage in hyperbole or on hominem attacks on the courts members instead he exercised individual and informed judgment he thought carefully about the issue before responding with his own rigorous analysis his criticism of the Court's Dred Scott decision was perceptive principled and scholarly now the framers views on slavery and its relation to the Constitution is a matter of course of considerable debate Lincoln's analysis after all was a piece of advocacy but his study highlighted the central flaw in Tawny's opinion the conclusion that Congress lacked power to regulate in the area because the Constitution removed the issue from the political realm Lincoln's analysis of course was a product of its time and it contained oft cited passages that fell short of realizing the principles of racial equality that we embrace today but it was an impressive response to Douglass's challenge and Lincoln continued to expand on his reasoning and an additional historical detail in later speeches the Court did not take up Lincoln's invitation to reconsider its decision and Lincoln ultimate and lost his bid in the race for the Senate but Lincoln demonstrated that he was a national candidate of calm judgment strong intellect and deep convictions two years later in a deeply divided nation he won nomination an election to the office of President of the United States Abraham Lincoln had run for president as the candidate of the new Republican Party formed only six years earlier before that time Lincoln had been a member of our Whig party which had formed in the 1830s in opposition to the policies of President Andrew Jackson the Whigs favored federal support of western expansion and the party took a very broad view of the United States Constitution grant of power to the federal government including the power to create a National Bank and undertake excuse me internal improvements such as the construction of roads and canals President Lincoln as a Republican brought to the White House the constitutional vision of a strong federal government that he had embraced as a Whig even the primary issue of the day even if the primary issue of the day slavery were not present Lincoln would likely have found himself at odds with the Supreme Court of 1860 that court consisted largely of Jacksonian important appointees including Andrew Jackson's former attorney general chief justice tawny the court of the era apart from the issue of slavery took a far narrow view of the Constitution's grant of federal power the issue of slavery was of course not merely present but dominant it was threatening the survival of the nation now as historians have recounted President Lincoln's objective from the beginning was to preserve the Union he faced a daunting challenge in this respect the population was divided not only on the fundamental question of slavery which split the nation north and south but also on the more theoretical but fervently debated issue of whether individual states were entitled to sever their constitutional bond with other states and secede from the union but that was not all Lincoln had to contend with an additional complication that was unknown to other 19th century leaders elsewhere in the the United States Constitution provided for a government of divided powers in which both executive and legislative actions could be checked by the courts through the power of judicial review the popular tension over slavery and the continuation of the Union combined with the institutional tension that results from divided governmental powers in any case produce something during Lincoln's presidency that really had no precedent Lincoln in deciding what actions to take to prevent his nation from dissolving found his actions subject to judicial review for conformity with a written constitution simply put the president continuously faced the prospect that the Supreme Court could decide suits that would call into question the scope of his authority as chief executive to preserve the nation's very identity this was an unprecedented state of affairs in the mid 19th century we in America have grown so accustomed to the role of judicial review of governmental action that we sometimes forget how extraordinary that distinctively American creation was 150 years ago consider just for a moment what was happening elsewhere in the world our closest national kin England shared our democratic principles and some elements of separated government powers but neither Queen Victoria nor law Lord Palmerston faced the prospect of judicial invalidation of executive action on the continent of Europe the governments of the mid 19th century remained largely authoritarian in France Napoleon the third had dissolved the French legislature and proclaimed the second Empire the courts were irrelevant to his rule in Germany Bismarck sought national unification through the blunt instrument of force judicial review of his actions was inconceivable the leaders of nations throughout the world may have felt limited in varying degrees by political constraints popular sentiments and foreign policy concerns but Lincoln alone faced the fact that his actions were subject to judicial review by the courts of his own government Lincoln responded by drawing strength from the document that both conferred his powers and confined them as the nation teetered on dissolution Lincoln's first inaugural address he used that address to invoke the sanctity of his oath to preserve protect and defend the Constitution he told those who favored secession that he as president could follow but one course stating you have no oh through din heaven to destroy the government while I have the most solemn one to preserve protect and defend it Lincoln saw not only the union of the states but also the government and its constitution as indivisible now a number of historians have argued that Lincoln was not a great constitutional law scholar but rather a pragmatist I think they are probably right he surely lacked the constitutional scholarship of James Madison or Joseph's story and he never acted without considering the practical consequences but Lincoln consciously embraced the Constitution as a workable scheme of government and he did not waver in his respect for the Supreme Court as an enduring and essential component of the American system when confronted with constitutional challenges he addressed the legal issues with the same analytical skills he demonstrated as a lawyer representing private clients and the same sense of individual responsibility that he had demonstrated in responding to the Dred Scott decision he accepted the Constitution's scheme of separation of powers including the constraint of judicial review as an essential element of the government that he swore to preserve protect and defend historians continue to debate whether Lincoln showed fully appropriate concern for constitutional limitations in particular instances but most would agree that in one of his boldest assertions of executive power the Emancipation Proclamation he demonstrated a keen sense of his obligation to observe those constraints even when they ran contrary to his moral convictions in the course of the Civil War Lincoln concluded that he had presidential power to free slaves but only because of his explicit authority as the military commander in chief during a time of hostilities his Proclamation freed only those slaves who were held in States or designated parts of states in rebellion at the time of the proclamation although Lincoln spoke out against slavery throughout his life he held firm to the view that full emancipation could be accomplished only through enactment of a constitutional amendment he pursued his moral convictions by giving full support to what became the Thirteenth Amendment categorically abolishing slavery throughout the nation that decision reflects some evolution in Lincoln's Whig based constitutional philosophy as well as an appreciation of the gravity of the issue in 1848 as a young Whig Lincoln had read the Constitution's provisions respecting internal improvements quite liberally and it found amendments unnecessary and unwise but the matured President Lincoln faced with the central issue of slavery considered a constitutional amendment imperative one of his contemporaries remarked that no piece of legislation during Lincoln's presidency received more of his attention than the Thirteenth Amendment now of course Lincoln's actions to preserve the Union placed him in regular conflict with Chief Justice tani who consistent with his Jacksonian perspective privately believed that the president had no constitutional authority to prevent States from seceding from the Union that difference of view extended to the disagreement that began with Tawny's decision in Lewis versus Lewis that it's sharpened with Tony's decision in Dred Scott and that reflected a more general philosophical divergence between Lincoln's Whig upbringing and Tawny's Jacksonian outlook nevertheless the historical record reflects that Lincoln did not allow those disagreements to become personal or to color his respect for the court as one scholar has noted if Lincoln was angered or chastised by Chief Justice Tawny's rulings he did not say so in any recorded conversation or letter I have come upon only one account of a face-to-face meeting between Lincoln and Tawni apart from Lincoln's appearance in the Lewis case and Tawny's administration of the oath at Lincoln's first inauguration in 1861 shortly before the inauguration president-elect Lincoln paid a courtesy call on the Chief Justice at the court notwithstanding the tension that must have existed between the two men Lincoln's aides described the meeting as affable and when the Chief Justice died in 1864 while the civil war still raged many of those who disagreed with Tony publicly rejoiced but Lincoln together with three of his cabinet members demonstrated his respect by attending tony's funeral service others in Lincoln's cabinet refused to go upon Tony's death Lincoln had the power to in duty and duty to appoint his successor and once again Lincoln demonstrated a distinctive aspect of his character many of Lincoln's friends and advisers sought the position including at least four of his cabinet ministers but eight weeks after Tony's death Lincoln denounced his choice of salmon P chase the choice surprised many in personality chase could not have been more different from Lincoln historians routinely described chase as rigid vain and humorless Chase had a brilliant mind but he was saddled with the relentless ambition to become president Chase had unsuccessfully opposed Lincoln for the Republican nomination in 1860 he reluctantly joined Lincoln's Lincoln's cabinet as treasury secretary but he bridled throughout his tenure at holding a role subordinate to Lincoln Chase was regularly a source of discord in the cabinet aggrandizing himself at the expense of others it was a poorly kept secret the chase was quietly seeking to supplant Lincoln as the Republican candidate for president in 1864 Lincoln was aware of these efforts but he reacted with the musem n't rather than dismay Lincoln concluded that despite all chases political maneuvering chase was performing effectively as Secretary of the Treasury Lincoln privately confided to an aide that chases presidential ambition was as he put it like a horsefly on the neck of a plow horse it kept chaste lively about his work but there were limitations even to Lincoln's patience Chase regularly offered to resign his cabinet posts whenever he felt that Lincoln had slighted him in some minor way in the summer of 1864 Lincoln finally decided to take chase up on his offer he wrote to chase of all I have said in commendation of your ability and fidelity I have nothing to unsay and yet you and I have reached a point of mutual embarrassment in our official relation which it seems cannot be overcome or longer sustained consistently with the public service Chase was stunned he was no doubt deeply disappointed when the Republican Party reen Amin ated Lincoln as its presidential candidate so why did Lincoln nominate Salman Chase for chief justice six months later simply put Lincoln believed that in the end Chase was the most qualified person for the job Lincoln told his friends now I know meaner things about Chase than any of you can tell me but I am going to nominate him he explained I should despise myself if I allowed personal differences to affect my judgment of his fitness for the office of chief justice Lincoln made a point of disregarding personal animosities when important public interests were at stake having surmounted his humble origins and gone so far through his personal effort he had the self-confidence to set such matters aside indeed Chase was not the only cabinet member to criticize Lincoln when Lincoln was told that his abrasive Secretary of War Edwin Stanton had called him a damn fool Lincoln replied then I must be one for Stanton is nearly always right and generally says what he means now after Lincoln chose Chase for chief justice the president nevertheless continued to express one reservation Lincoln privately related mr. chase will make an excellent judge if he devotes himself exclusively to the duties of his office and doesn't meddle with politics but if he keeps on with the notion that he is destined to be President of the United States which in my judgment he will never be he will never acquire that fame and usefulness as Chief Justice which he would otherwise certainly attain unfortunately Lincoln's concerns were borne out after his death historians recount that Chase was a capable Chief Justice in many respects but he found the job tedious and continued to be distracted by his presidential ambitions while serving as chief justice chase sought to run against Ulysses Grant as the Democratic candidate in 1868 and 1872 but in each case he failed to wind the nomination as I stated at the outset Americans Revere Lincoln because of his success as president in preserving our union during its greatest crisis but in focusing on that towering achievement one can easily overlook the foundational elements of Lincoln's character shaped in significant measure by his legal calling Lincoln's relationship with the Supreme Court reveals some of those elements Lincoln as a private lawyer representing clients before the court was a skilled and diligent craftsman who believed that justice could be achieved through the rule of law Lincoln as a political candidate critical of the courts Dred Scott decision was a restrained and principled statesman who formulated his position through his own scholarly legal analysis rather than on the say-so of others and Lincoln as president charged with both respecting the role and securing the future of a coordinate branch of government was a tireless and resolute steward of the nation who dedicated his life quite literally to the preservation of constitutional government now in some respects what Lincoln revealed as a craftsman a statesman and a steward might seem rather pedestrian but the fact is that many great institutions on both sides of the Atlantic are founded on and sustained by simple virtues and in so many instances it is the absence of those simple virtues that lies at the heart of injustice perhaps that explains why as Prime Minister Lloyd George said Abraham Lincoln belongs to the common people of every land Lincoln's virtues are perhaps common but they are virtues that inspire the people of all nations founded on and sustained by the rule of law thank you very much for your kind attention professor if it's in the chairman of the faculty is in due course going to give her an appreciation of the wonderful lecture we've just heard pointing out as I believe that this evening President Lincoln has been fortunate in his biographer but can I say this the president the the Chief Justice is prepared to answer quick he's prepared to answer questions and I would ask you to make it questions and make the questions one ones which is appropriate for a person in the Chief Justice's office to answer because obviously for example he can't answer questions which would affect his position in relation to a case that is due to be heard in the Supreme Court and unless you're one of his law clerks you won't know what those cases are so then it creates that creates a difficulty in addition and I think this is an indication of the quality of the Chief Justice he is going to go next door where there is an overflow and answer questions there so I emphasize please keep your questions short so that the Chief Justice can do that as well so who's going to ask the first question I should you say in the overflow room I'll answer questions about pending cases well no I had been told you wouldn't be shy well it is historically unprecedented that my court currently has every member was a Federal Court of Appeals judge before coming on the Supreme Court that was normally not the case you go back to the 1950s you had Earl Warren governor Hugo black senator Felix Frankfurter only a professor by what I met some professors have also served as judges and they come up I didn't mean olia you know it and of course I'm hesitant with a vacancy coming up on the court to comment on the qualifications and I shouldn't be understood to do that in any way I certainly don't think it's a bar given the fact that throughout the courts history there have been such individuals but it's an interesting question that I think might benefit from study whether there's a reason we now have only former judges whether it reflects the fact that the court has become more lawyerly that disputes are presented more in in legal framework rather than as a branch in which you would expect the informed views of a governor or a senator or an academic who had not no judicial experience to play a significant role I'm not sure that's the case but it is an interesting phenomenon yes I do that every day you know the there was a great debate about the Bill of Rights and that amendment was a critical one to getting it adopted the concern on behalf of people who were strongest in favor of recognition of individual liberties was how can we possibly write them all down and there's this negative implications going to be drawn and the supporters of the bill write says well we'll put in this amendment saying don't draw that negative implication I was asked about that amendment at my confirmation hearings and of course there's very little to draw on we have not had I don't remember the last 9th amendment case we had I don't remember the the first ninth amendment case the court had it's it's not something that's come up and I I explained it I think it's the best view of it that rather than having different branches of government determining what specific rights are not enumerated and are preserved the ninth amendment simply reflects the truism that I don't know if it's a colloquial phrase over here but it is in the in the states that you know it's a free country and you have the right to do things you don't have to look to the Bill of Rights and say I can do this because the Bill of Rights says I can the general rule is it's a government of limited powers and you have the right to do as you will in the absence of specific legal restriction that's that's how I've read the 9th amendment I and every member on the Supreme Court more or less like the current system we think it's worked quite well but I think it was Lord wolf and I were having a conversation earlier in which my colleague the same question was posted in my colleague Justice Breyer and he made the point that the question of democratic legitimacy may be a more prominent one in our country and we are of course politically unaccountable we are not elected by the people we are not we don't run for office we can't generally be removed no justice has been by the Democratic democratically elected branches in our system that's an extraordinary fact it is the central issue that legal scholars in our system address how do you reconcile an unelected unaccountable judiciary with the power of judicial review with the Democratic notions at the center of our revolution and constitutional system being appointed by a politically elected and accountable president being confirmed by a politically elected and accountable Senate gives us at least that measure of legitimacy that that would be absent now it has regrettably I think in recent years made the process as you put it more more political you know that the confirmation hearings that we've seen recently including my own justice Alito's we're quite unlike what they used to be they're famous stories about justices being confirmed during a elevator ride with the chairman of the Judiciary Committee quite literally there's a historic I mean going back even even farther than James Madison nominated John Quincy Adams he was nominated in the morning and confirmed in the afternoon so quickly that their warrant wasn't time to notify him of even the nominees and as you probably know there hasn't been a Justice John Quincy Adams because when he found out he said I know interest in that I'm I'm going to run for president which which he did so I think our systems are different enough that you would expect there be different methods of appointment I think you're quite right that our system has become more politicized I think that's very unfortunate politics in the United States has become increasingly polarized and and there's a fair degree far greater degree of animosity between the different parties than existed before and those of us in the judiciary are very concerned that that will seep over into the judicial branch through for example the confirmation process hope that doesn't happen yes there is indeed well first our clerks do not have ideological positions second it is not the case there is a basketball court up there it's a dangerous place to be honest it's basically concrete with sort of linoleum tile over it we always have one or two clerks hobbling around on crutches I will tell you short story I don't know I suspect you don't follow American basketball but the two years ago the team from the University of Kansas won the national championship on a last literally last-second shot by fellow Mario chambers from very far away that went through and the team came to visit the court later that spring and we had a wonderful time and they of course had heard about the basketball court and went up there and were or you know threw off their suit jackets and had a great time but then the the team told asked mr. chambers to repeat the shot thinking he wouldn't be able to do it and he's quite confidently took the the ball stood at the spot on the floor took the shot which promptly hit the ceiling it's a it's a low ceiling and you do have to compensate for that when you play yes for so long and a quarter yeah well as you might imagine it was a little intimidating you're quite right the court had been together for the longest period in history as a nine-member court 11 years without any change and here I was coming in the youngest member coming in as the the chief justice coming in before people that I had argued before and you know there's quite a different relationship between the justices and the advocates one of the justices is justice Stevens was there when I was a law clerk so you can imagine I was a little concerned about how it would would work out and and I was very very impressed and quite moved frankly but during the first conference of the court a private conference where each of the members made it quite clear that that was not a problem for them and they referred to me as chief from the very beginning and you know that they didn't have to do that I think it reflected their view of the importance of the office not of me but it made my transition an extraordinarily easy one yes well I could answer it it's kind of pedestrian the administrative part I mean the fact of the matter is I have administrative duties basic things to getting the budget from Congress as head of the Judicial Conference managing disputes throughout the federal judiciary things of that sort I was not selected for the job because I had good managerial skills there's debate about why I was so but it wasn't because of that but you know it I'm getting better at it as the years go by and and and oh that's certainly the most difficult part another difficult part frankly I'm entering upon it will be as soon as I go back to work on Monday is is sort of keeping things running on time we have to get we have a term system all of our cases have to be done by the end of June if they're not and sometimes they've not been not since I've been there but sometimes they're not and then it's very much my fault and it's not easy to go to say a justice who was there when I was a law clerk and tell them you know let's go let's get this out and it certainly means that I have to have all my stuff done before I can do that so that that part of you know make sure we get things on done on time and certainly the administrative stuff have been the most difficult yes and having empathy and what would Lincoln's opinion be on well I I think I'd quite clearly shouldn't be commenting on the president's exercise of his constitutional responsibilities to nominate someone from the courts I think I think I just better not touch on that at all way in the back you know thank you for saying things are different now I appreciate the I don't know whether that's an accurate story or not I've also heard it but I will say this there's a fascinating story about the Court of Appeals for the District of Columbia at the time the court that I lay it served on for a couple of years it was had similar secessionist sympathies to the Supreme Court and it had adopted a practice of releasing Union soldiers from their enlistment at a time when you know the outcome of the Civil War was still very much in doubt and they persisted in that despite Lincoln's efforts through his attorneys to stop it and as a result of it Lincoln sent military soldiers to the house of one of the judges and to surround one of the the courts where two others were meeting it was a three member Court prevented them from hearing cases they the one that confined to his house was able to get a note out to the others saying that he would stand at his post until he died very curiously and I said but I'm very old not quite sure what that meant but and then the Republican legislature at Lincoln's urging abolished that Court and I think the next day created a new Court called the Supreme Court of the District of Columbia that had exactly the same Authority in power except there was a staff by a Republican congressman from Pennsylvania Republican congressman from Illinois and the individual who was said to be the only person in Alexandria who had voted for Lincoln and so now that's an extraordinary I mean it's not far from that to the arrest of the chief justice but the he didn't take that step it confirms if I didn't make it explicit enough that Lincoln's relationship with the courts the Constitution was a multi-faceted multifaceted one yes how did he hope to but what did you see for the future of slavery most people at the time suspected that the extension and addition of new states would eventually lead to the abolition of slavery if only because slavery was not a viable institution in the West and the change in the balance of power in the Senate the houses new representatives new senators came on would seriously undermine that that's why it was such a divisive issue that's why you have familiar as the bloody Kansas which was was it going to be a slave or a free State and people went there to simply to change the makeup and the settlers were killing each other over it that I think was the main the main view that it was all would altered the balance of power in the in the in the nation yes well you're quite right about the scars and it's interesting the way it's been looked at I forget who it was but some authority you know the the issue of nation-building that we've been addressing in a number of areas in the world sites the reincorporation of the south is a successful example of nation-building because the south had transformed itself so much certainly no one knows Lincoln certainly I think would have taken a sympathetic isn't the right word he would have done everything he could to incorporate the south as readily as he could rather than continuing to view them as defeated enemy forces there is a number of things in his statements even before success that indicated he was not going to regard them as a hostile power but instead as fellow citizens who aired it's a fascinating debate about what happened radical reconstruction you know the sending of Union troops to stay there there are those who say they didn't go far enough and as a result you had the continuation of a difficult period in the south with obviously continuing discrimination and there are those who said they did too much that it led to a reaction against the federal power that wouldn't otherwise have been there I have to believe based on his personality his spirit his animating virtues that he would have taken a reincorporating the south yes we hold these truths to be self-evident I don't see how they can be self-evident only in North America that's not to say again that it's not a legal document it is an illegal document subject to interpretation this is not the French Declaration of the human rights it is not a United Nations document it's a legal document that carries certain limited MeetMe I mean yourself and recognize the First Amendment is not a doctrine that applies around the world I suspect I view you England's also a free country it doesn't have the First Amendment so is that a fundamental flaw in its view of human rights I I would suggest not but those who wrote the Declaration certainly viewed it as being based lar on natural law and their understanding of the rights of individuals and it's very important people looking back lose sight of the fact of what a dramatic action that was if the revolution had been unsuccessful every one of the people who signed that declaration whom we revere as our founding fathers would certainly have been hung and and they were willing to to risk that for beliefs it is very much a product of of the Enlightenment and all I can say is it continues to reflect our aspirations however short of reality it falls may be time for one more question yes suspending yes yes I mean there it's it's one of the more dramatic exercises of what he regarded as his more powers it's not entirely free from doubt but the the the constitutional grant of the authority to do that it I think most people were surprised with his view that it resided in the president my predecessor wrote a book about that it's entitled all the rights but one which meant that the elevation of that particular rights suspended by Lincoln he questioned either that should be elevated to such an extent that it meant that the Union would fail and all the other rights would be exhausted it's it's not a subject perfectly honest I've more or less exhausted my knowledge about Lincoln I have held nothing back I shared it it continues to be obviously hotly debated and as is the thing that's interesting about it I think from what I've looked at it's not at all apparent that it was in any sense necessary I think it may well have been an example where Lincoln himself got carried away as a lawyer with the dispute I doubt that it was necessary to achieve any significant war aim that then he had well thank you all very much I very much enjoyed the question you've been a very kind and gracious audience for which I'm grateful mr. Chief Justice on behalf of the more faculty and of our plethora of distinguished guests whom you've attracted here tonight and I thank you for doing us the honor of accepting the invitation to give the David Williams lecture and giving us the pleasure of actually turning up to do so I had of course intended to say a few words more than a few words on comparative constitutional history of the relationship between the judiciary the executive in England of the United States in the early years of the or the first part of the 19th century but you've been so generous with your time in answering questions that I will save that for another occasion but I hope I can be allowed one small footnote you graciously referred to Lincoln's English ancestry you didn't refer to the fact that he was of good East Anglian stock and he's really a local boy at heart were it not for the fact that a distant ancestor had quarreled with his brother about their father's will and had fled the country and emigrated to the United States we could expect that Lincoln would have been a good East Anglian boy himself and would probably have come to Cambridge he would then undoubtedly have become a respectable country parson he would have been remembered by people who read antiquarian literature that otherwise completely forgotten mr. Chief Justice thank you very much indeed for gracing us with your presence this evening you

Channel: Cambridge Law Faculty

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Keywords: Public Law, Centre for Public Law, CPL, Administrative Law, Constitutional Law, Constitution, United Kingdom (Country), Rule of Law, John G Roberts, Abraham Lincoln (US President), Supreme Court Of The United States (Court), John Roberts (Judge)

Id: fC-qDYvVHis

Length: 77min 23sec (4643 seconds)

Published: Mon Jun 23 2014