November 30, 1804 – U.S. Supreme Court Justice Samuel Chase Goes on Trial for Impeachment

Samuel Chase, born in Maryland in 1741, studied law in Annapolis and was admitted to the bar in 1761. In 1762, he was expelled from the Forensic Club, an Annapolis debating society, for “extremely irregular and indecent” behavior (which turns out to have involved unkind comments employing “impious language” to fellow members). Nevertheless, two years later he was elected to the Maryland General Assembly where he served for twenty years.

From 1774 to 1776, Chase was a member of the Annapolis Convention; represented Maryland at the Continental Congress; was re-elected in 1776; and signed the United States Declaration of Independence. He remained in the Continental Congress until 1778. Once again, however, he got into trouble, this time by using insider information gained through his position in Congress to try to corner the market for flour. According to his biography, he had a “burning desire for wealth and [by such means] a secure place within the gentry.” But this desire often led to unwise financial speculations. He did not get returned to the Continental Congress.

There must have been a dearth of untainted men to serve the public, however, because in 1788, Chase was appointed Chief justice of the District Criminal Court in Baltimore and served until 1796. In 1791, he became Chief Justice of the Maryland General Court, again serving until 1796. On January 26, 1796, President George Washington appointed Chase as an associate justice of the Supreme Court of the United States. Chase served on the Court until his death on June 19, 1811.

Associate Justice of the United States Supreme Court Samuel Chase, In office January 27, 1796 – June 19, 1811

Associate Justice of the United States Supreme Court Samuel Chase, In office January 27, 1796 – June 19, 1811

President Thomas Jefferson tried to have Chase impeached, as part of Jefferson’s plan to reduce Federalist influence on the Supreme Court. The eight articles of impeachment served on Chase all related to Chase’s work as a trial judge in lower circuit courts. (In that era, Supreme Court justices had the added duty of serving as individuals on circuit courts, a practice that was ended in the late 19th century.) The Jeffersonian Republicans-controlled United States Senate began the impeachment trial of Chase in early 1805, with Jefferson’s relative John Randolph of Virginia leading the prosecution.

The heart of the allegations was that political bias had informed Chase’s behavior. Chase argued that his actions were, on the contrary, motivated by adherence to precedent, judicial duty to restrain advocates from improper statements of law, and considerations of judicial efficiency.

The Senate voted to acquit Chase of all charges on March 1, 1805. He is the only U.S. Supreme Court justice to have been impeached.

Review of “The Court and the World: American Law and the New Global Realities” by Justice Stephen Breyer

This is a consistently interesting book, much more so than one would have expected from the reviews in major papers following its initial release.


The book is about conflict of laws, first between the judicial and political branches of the American government, and then between the laws of the U.S. and the laws in the rest of the world. None of the conflicts arise from simple problems. The law rarely provides a black-and-white line, which is of course why so many cases need to be adjudicated, and why the courts so often have split decisions.

In the U.S., there have often been challenges to exercises of executive power by the President. How does the Court decide if the President has overstepped the limits of the Constitution? In previous eras, the Court was reluctant to decide: the President, after all, is privy to a host of considerations, including secret intelligence, treaties, and sub rosa agreements with other governments about which the Court does not and cannot know. In recent years, however, the Court has jumped into the fray, especially with cases arising out of the capture and trial of international terrorists in general, and the prison in Guantanamo in particular. Cases involving terrorists are especially interesting because most precedent involving the use of extraordinary powers by the executive pertains to specific, time-limited wars. In modern times, the war of terror is constant and threats diffuse. How then should executive power be contained or at least balanced?

Then there are the many cases arising out of the globalization of the economy. As Breyer observes about commerce:

“…national markets are now so interconnected and integrated that the most ordinary commercial transactions can involve a host of different activities and entities across the globe.”

How, for example, are American laws to be applied with respect to companies which have operations, sales, manufacturing, and distribution spread around the globe, and can be owned by holding companies in the U.S. or abroad, or may have labor outsourced in the U.S. or abroad, or may import parts and components from anywhere? What about the case of shoddy goods made in, say, Belgium for an American company and shipped to the U.S. on a ship manufactured in the Netherlands but owned by the United Kingdom? Or what about securities fraud committed by a holding company overseas that owns an American company? Or a conspiracy that takes place over the internet? If there is a perceived infringement of the law at any stage in the process at any location, who can be found libel and in which country’s courts? And how might the ruling of one country’s courts affect international relations?


Finally, there is the somewhat bizarre existence of the Alien Tort Statute, enacted by Congress in 1789 and giving federal district courts original jurisdiction “of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Although the statute was mostly ignored for the first two hundred years after its passage, since 1980 it has gotten new life, which has opened a whole new international can of worms.

Breyer also argues that the need for courts to understand technical as well as legal dimensions of the world and how other laws intersect with our own is increasingly critical. There are a number of international courts now in operation, but their success depends on the cooperation of nations which agree to hold their judgments binding. The United States, for example, is not one of the 122 nations agreeing to abide by the findings of the International Criminal Court (ICC). The United States is a party to the treaty that created the International Court of Justice (ICJ), but as one legal scholar notes (Sean D. Murphy, The United States and the International Court of Justice: Coping with Antinomies in THE UNITED STATES AND INTERNATIONAL COURTS AND TRIBUNALS (Cesare Romano, ed., 2008):

Since 1946, the United States has had an uneasy relationship with the International Court of Justice (ICJ or World Court or Court). On the one hand, the United States embraces the rule of law within its own society and, in principle, within the international system of states. The United States has been and remains an active participant in cases before the Court, appearing before it several times, more than any other state, even in recent years. On the other hand, the United States has never been willing to submit itself to the plenary authority of the Court, and has typically reacted negatively to decisions by the Court that are adverse to U.S. interests.”

Breyer discusses several instances in which the ICJ has ruled against the U.S. and the cases have gone to the Supreme Court for a determination of whether foreign courts – “created pursuant to a treaty ratified by the United States” – can issue judgments that are binding within the United States. It’s probably not a surprise that the Court has ruled (particularly in Iguarta-De La Rosa v. United States, 417 F. 3d 145, 150 (1st cir. 2005) the U.S. need not follow ICJ decisions in matters of domestic law unless a provision in a treaty ratified by the Senate is made into a domestic law by the House. However, this caveat applies to only some treaties – it’s all very complicated; the Court must decide if the caveat applies on a case-by-case basis. But obviously, most nations, especially the U.S., don’t want to give up judicial sovereignty.

Justice Breyer

Justice Breyer

Nevertheless, Breyer’s point is that increasingly foreign law and foreign considerations will impact law in the U.S. and influence decisions of the Supreme Court. The Court should extend its range of legal and practical reference. One would think this conclusion is so obvious as to be absurd, but in fact, there are several members of the current Court who are opposed to taking anything into consideration besides domestic concerns. One wonders how they can even think about the complicated cases that now come before the Court with this attitude. Most notably, Justice Breyer has often sparred with Justice Scalia on this subject. Moreover, as Breyer reports, in 2004, 74 members of Congress sponsored legislation stating:

…that judicial determinations regarding the meaning of the laws of the United States should not be based in whole or in part on judgments, laws, or pronouncements of foreign institutions unless such foreign judgments, laws, or pronouncements . . . inform an understanding of the original meaning of the laws of the United States.” (H.R. Res. 568, 108th Cong., 2004)

Where does this resistance come from? Mostly, it stems from political conservatives, who resent, for example, the tendency of most of the rest of the Western world to reject the death penalty, to recognize same-sex relationships, and to have stricter laws about access to guns.

One can only hope that the rule of reason will return to all branches of the U.S. Government, but unfortunately, it is beginning to look more and more unlikely.

Evaluation: Breyer provides an excellent analysis of the facts and issues at stake for each case he discusses, helping readers to understand just how complex the law can be. He presents both sides of the decisions fairly, whether he was in agreement or not, and makes a very good case for the need for increasing knowledge of world law by jurists.

Rating: 4/5

Hardback published by Alfred A. Knopf, a division of Penguin Random House LLC, 2015

Audio Book Run time: 12 hrs, 38 mins. Available as an unabridged digital download from Penguin Random House Audio (2015)

A Note on the Audio Production:

Breyer reads his book well, but employs a number of pronunciation anomalies.

Disputes, for example, are DIS-putes rather than dis-PUTES. He says de-CADE rather than DEC-ade. These may just be regionalisms. Justice Breyer has trouble saying “integral” but so do I. (Let’s get rid of that word!) But the most jarring is the most surprising: his pronunciation of amicus curiae. This is a Latin phrase meaning “friend of the court” which refers to briefs filed by interested outsiders in a legal case. I have always heard one of two pronunciations of “amicus,” either as uh-MEE-kuss or AM-uh-kuss, the first being more common. I was astounded to hear Breyer say “a-MY-cus,” I thought I must have been wrong all these years, and looked it up. I found a most humorous article by language guru William Safire commenting on this very tendency of Breyer’s. He writes:

Tony Mauro, who watches the Supreme Court with a legal-eagle eye for Legal Times, noted that Justice Stephen Breyer has his own pronunciation. ‘During arguments Jan. 15 in Lambrix v. Singletary,’ wrote Mauro, ‘Breyer said ‘a-MY-cus’ so many times that the hapless lawyer before him, solo practitioner Matthew Lawry, adopted the same, clearly incorrect pronunciation just to be accommodating.’ The reporter checked with Prof. William McCarthy of the Greek and Latin department of Catholic University, who agreed that Breyer’s pronunciation was, to say the least, nonstandard; the professor preferred ‘AH-me-kous.'”

Safire went on to say that he then consulted Bryan Garner, the editor of the Dictionary of Modern Legal Usage and the seventh edition of Black’s Law Dictionary. Garner told him:

‘Justice Breyer has adopted an Anglo-Latin pronunciation. . . ‘It will make any Latin teacher apoplectic. But it has English and American history behind it, and that, in the end, matters more than how Cicero might have mouthed the phrase.’”

At any rate, at track 46, Breyer switches to ah-ME-kous. By track 49, however, he is back to ah-MY-cus.

Screen Shot 2015-11-08 at 7.06.15 AM

November 15, 1811 – Nomination of Supreme Court Justice Joseph Story

On this day in history, Joseph Story was nominated by President James Madison to take the Supreme Court seat vacated by William Cushing. (He was the longest-serving of the Court’s original members, sitting on the bench for 21 years.) Story was confirmed by the United States Senate, and received his commission on November 18, 1811. At age 32, he was the youngest person ever appointed to the Court.

Associate Justice of the United States Supreme Court Joseph Story, in office November 18, 1811 – September 10, 1845

Associate Justice of the United States Supreme Court Joseph Story, in office November 18, 1811 – September 10, 1845

Story was born in Marblehead, Massachusetts. He went to Harvard, where he graduated second in his class, and practiced law in Salem, Massachusetts, from 1801 to 1811. Politically, he was a member of Jefferson’s Republican-Democrat Party, and so Madison assumed he was appointing an ally when he nominated Story to the Supreme Court in 1811.

Much to the chagrin of Jefferson and Madison, however, Story aligned himself with Jefferson’s nemesis, Chief Justice John Marshall, just as their other appointments had done.

In his later years of his career on the Supreme Court, Justice Story was the author of two of the Court’s most important decisions related to slavery. Though personally opposed to slavery, Story believed the Constitution recognized and legitimized the institution. Nevertheless, he tried to construct his decisions in ways that might aid the cause of abolition.

The 1841 Amistad case (40 U.S. 518; 10 L. Ed. 826) stemmed from a 1839 incident in which Spanish slave traders had forcibly taken more than 500 captured Africans to Spanish-ruled Cuba. Spanish law prohibited the transportation of African slaves to Cuba. But Spanish officials in Cuba largely ignored that law; there was much money to be made in Cuba for the provision of labor for sugar planters.

At a slave sale in Havana, some of these slaves were purchased and transferred to the schooner Amistad for delivery at plantations along the coast of Cuba. But the slaves revolted, took over the ship, and tried to go back to Africa. They stopped at Long Island Sound in New York to get provisions. A U.S. Navy brig learned of the situation and took custody of the Amistad, requesting a hearing. The case moved up through the courts, reaching the Supreme Court in 1841.

1840 engraving depicting the Amistad revolt

1840 engraving depicting the Amistad revolt

Justice Story, speaking for the Court, declared that the men on the Amistad were seized illegally in violation of the laws and treaties of Spain. They were not slaves; they were “kidnapped Africans.” Moreover, “… in no sense could they possibly intend to import themselves here, as slaves, or for sale as slaves.” Thus, he declared them free, to be dismissed from the custody of the Court without delay.

In the 1842 case Prigg v. Pennsylvania (41 U.S. (16 Pet.) 539, 1842), the majority opinion, again written by Justice Story, affirmed the constitutionality of the Fugitive Slave Act of 1793. Justice Story maintained that the fugitive slave clause was in fact essential to the formation of the Union, but only federal agents could enforce it. His decision seemed to say that on the one hand, states had no right to protect its free citizens from being kidnapped and enslaved. But on the other, states did not have any obligation to assist in the capture and return of fugitive slaves. The resulting uproar contributed to the insistence by the South of a new fugitive slave law, which they got in 1850, and which played a large role in precipitating the Civil War.


Story’s decisions also helped shaped early American commercial and admiralty law. Moreover, while sitting as a justice of the Supreme Court, he began teaching at Harvard Law School in 1829 and in 1833 published his Commentaries on the Constitution, which became an essential guide for American lawyers.

Story served on the Supreme Court until his death on September 10, 1845.

September 6, 1819 – Thomas Jefferson Calls the Constitution a Felo de Se

Thomas Jefferson was greatly opposed to a strong central government, believing that most power should reside with the states.  [At least, that was his belief until he was the President, and then his tune changed.]

He constantly harangued his friends and followers-on to promote his views on this matter, especially in regard to his attempts to emasculate the Supreme Court.

In Hite v. Fairfax, (4 Call 42, 1786), the U.S. Supreme Court overruled a decision of the Virginia Court of Appeals in an ejectment case that, inter alia, involved the interpretation of a treaty with Great Britain.  But egged on by Thomas Jefferson and echoing Jefferson’s words in his Kentucky Resolution, Judge Spencer Roane rejected the order of the Supreme Court declaring that “the appellate power of the Supreme Court does not extend to this Court.”

Spencer Roane

Spencer Roane

The losing party then appealed that ruling, and the case was once again before the Supreme Court, this time under the name Martin v. Hunter’s Lessee (14 U.S. 304, 1816).  

Once again, the Supreme Court ruled that it had power (if in a proper case) to overrule the highest court of a state. On March 20, 1816, Justice Story asserted in his decision for the Court:

The Constitution of the United States was ordained and established not by the States in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by “the people of the United States.” There can be no doubt that it was competent to the people to invest the general government with all the powers which they might deem proper and necessary, to extend or restrain these powers according to their own good pleasure, and to give them a paramount and supreme authority. 

… it is plain that the framers of the Constitution did contemplate that cases within the judicial cognizance of the United States not only might, but would, arise in the State courts in the exercise of their ordinary jurisdiction. With this view, the sixth article declares, that

This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

It is obvious that this obligation is imperative upon the State judges in their official, and not merely in their private, capacities. From the very nature of their judicial duties, they would be called upon to pronounce the law applicable to the case in judgment. They were not to decide merely according to the laws or Constitution of the State, but according to the Constitution, laws and treaties of the United States — “the supreme law of the land.

Nor can such a right be deemed to impair the independence of State judges. . . . In respect to the powers granted to the United States, they are not independent; they are expressly bound to obedience by the letter of the Constitution, and if they should unintentionally transcend their authority or misconstrue the Constitution, there is no more reason for giving their judgments an absolute and irresistible force than for giving it to the acts of the other coordinate departments of State sovereignty.”

Daguerreotype of Joseph Story, 1844

Daguerreotype of Joseph Story, 1844

It is important to note that the Court was not claiming the power to rule on all state court decisions. Its decision was based on subject matter jurisdiction. In Justice Story’s words:

It is the case, then, and not the court, that gives the jurisdiction….If State tribunals might exercise concurrent jurisdiction over all or some of the other classes of cases in the Constitution without control, then the appellate jurisdiction of the United States might, as to such cases, have no real existence, contrary to the manifest intent of the Constitution. Under such circumstances, to give effect to the judicial power, it must be construed to be exclusive, and this not only when the casus foederis should arise directly, but when it should arise incidentally in cases pending in State courts. This construction would abridge the jurisdiction of such Court far more than has been ever contemplated in any act of Congress.

It has been argued that such an appellate jurisdiction over State courts is inconsistent with the genius of our Governments, and the spirit of the Constitution. That the latter was never designed to act upon State sovereignties, but only upon the people, and that, if the power exists, it will materially impair the sovereignty of the States, and the independence of their courts. We cannot yield to the force of this reasoning; it assumes principles which we cannot admit, and draws conclusions to which we do not yield our assent.”

Thus, in Martin v. Hunter’s Lessee, the Supreme Court affirmed its authority to review state court decisions dealing with federal law, and to overturn state court decisions it adjudged in violation of the Constitution. 

Thomas Jefferson was incensed.  He later wrote to Judge Roane:

In denying the right they usurp of exclusively explaining the constitution, I go further than you do, if I understand rightly your quotation from the Federalist, of an opinion that “the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.” If this opinion be sound, then indeed is our constitution a complete felo de se. [Felo de Se – (Law) One who deliberately puts an end to his own existence]

…The constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please.  …  Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law …”

Thomas Jefferson

Thomas Jefferson

August 30, 1967 – Thurgood Marshall Confirmed As the First African-American Supreme Court Justice

On this day in history, Thurgood Marshall was confirmed as an Associate Justice by a Senate vote of 69–11. He was the 96th person to hold the position, and the first African American. He had been nominated to that office on June 13, 1967 by President Lyndon B. Johnson.

Thurgood Marshall in the Oval Office, 1967

Thurgood Marshall in the Oval Office, 1967

Marshall served on the Court for the next 24 years, compiling a liberal record that included strong support for Constitutional protection of individual rights, especially the rights of criminal suspects against the government.

Among his many law clerks were attorneys who went on to become judges themselves, such as Judge Douglas Ginsburg of the D.C. Circuit Court of Appeals; Judge Ralph Winter of the United States Court of Appeals for the Second Circuit; Supreme Court Justice Elena Kagan; as well as notable law professors and law school deans.

One former clerk of Marshall’s, Stephen Carter, who went on to become a law professor at Yale Law School, spoke in this short video about how Marshall would never say a bad word about anyone, even his segregationist opponents.

July 11, 1921 – William Howard Taft Sworn in as Chief Justice of the U.S. Supreme Court

On this day in history, William Howard Taft became the only person to serve as both U.S. President and Supreme Court Chief Justice.


Taft was the 27th President of the United States (1909–1913). Before becoming President, Taft served on the Superior Court of Cincinnati, as Solicitor General of the United States, and as a judge on the United States Court of Appeals for the Sixth Circuit. He also was appointed as Governor-General of the Philippines by President William McKinley and as Secretary of War by President Theodore Roosevelt.

Riding a wave of popular support for fellow Republican Roosevelt, Taft won his 1908 bid for the presidency but was defeated after one term.

After leaving office, Taft spent his time in academia, arbitration, and the pursuit of world peace through his self-founded League to Enforce Peace. In 1921, President Warren G. Harding appointed Taft Chief Justice of the United States. Taft served in this capacity until shortly before his death in 1930.

June 23, 1969 – Warren Burger Begins His Term as Chief Justice of the U.S. Supreme Court

On this day in history, Warren Burger took the oath as the 15th Chief Justice of the U.S. Supreme Court. Burger was appointed by President Richard Nixon to replace retiring Chief Justice Earl Warren. Warren had served as an assistant attorney general for President Dwight D. Eisenhower, who in 1956 appointed him to the District of Columbia Circuit of the U.S. Court of Appeals.

President Nixon with former Chief Justice Earl Warren and newly appointed Chief Justice Warren E. Burger

President Nixon with former Chief Justice Earl Warren and newly appointed Chief Justice Warren E. Burger

Earl Warren announced he was retiring while Lyndon Johnson was still President, but Nixon sent word to Congressional Republications to block any candidate named by Johnson so that Nixon could appoint the justice. Thus, Republicans successfully filibustered the nomination of Supreme Court Associate Justice Abe Fortas.

Nixon initially approached two other candidates, former Eisenhower attorney general Herbert Brownell and former GOP presidential candidate Thomas Dewey, but both of them turned down the job.

Widely-known as a conservative, Burger was a strong advocate of “strict construction” to the interpretation of the Constitution. He often tried to dampen some of the Warren Court’s more liberal decisions during his 17 year tenure on the court. But he authored the Court’s opinion upholding the right of trial judges to order busing as a remedy for school segregation, and he spoke for a unanimous Court upholding a subpeona for the Watergate tapes which resulted in President Nixon’s resignation. By the time he retired in 1986, he had become the longest serving chief justice of the 20th century. Burger died on June 25, 1995, and is buried at Arlington National Cemetery.



Get every new post delivered to your Inbox.

Join 94 other followers