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 Connally, who was also injured, evolved into what has been dubbed the “single bullet” theory. The Commission found that the first bullet that struck President Kennedy entered his upper back, exited through his neck, then struck Governor Connally, who was sitting in front of the President, entered just below Connally’s right armpit, exited his right chest, struck and shattered his right wrist, and ended up in his left thigh.
The existence of a 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 report, Chief Justice Warren refused to respond or defend it, simply telling his staff that it spoke for itself. In 1967, according to a Gallup poll, 60 percent of Americans doubted that Oswald was the lone gunman in Dallas.
In September 1976, the House Select Committee on Assassinations was established to investigate the murders of President Kennedy and the Reverend Martin Luther King, Jr. The committee’s report on the Kennedy assassination confirmed the conclusions of the Warren Commission that President Kennedy was struck by two shots fired by Oswald from the Texas School Book Depository building and that the second shot killed him. It concluded, however, that President Kennedy “was probably assassinated as a result of a conspiracy,” that the Warren Commission was too definitive in its findings, and that it failed adequately to investigate the possibility of a conspiracy.
IF WE STEP back to review the examples of Supreme Court justices performing extrajudicial duties, they are obviously different as to the time at which they occurred, the nature of the assignment, and the effect that the assignment would have 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 3 or 4 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 moment, Fuller’s acceptance of the Venezuela Boundary arbitration seems debatable. He was appointed by the President of Venezuela, so it might have been diplomatically difficult to refuse. Fuller spent an entire summer at the task, but it was while the Court was in recess; the result of the arbitration was not apt to be controversial in the United States. One suspects that by the time Fuller turned down McKinley’s request to serve on the Peace Commission, he already had second thoughts about the Venezuela arbitration. And he was surely right in declining that appointment.
Owen Roberts’ service on the Pearl Harbor Commission required that he miss one of the seven monthly argument sessions which take place during the 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 at Pearl Harbor 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 extrajudicial task in modern times; he missed an entire 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 here that was not present 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 desired the position 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 its work would be the subject of violent and prolonged criticism from the party against whom it ruled. 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. Members of the Court, if not the Court itself, would participate in a decision that had enormous political consequences.
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 rather this cup had 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. In the view of this author, in accepting membership on the Commission, they did the right thing.
Notes
CHAPTER ONE
1. Quoted in Russell F. Weigley, ed., Philadelphia (New York, London: W. W. Norton, 1982), p. 466.
2. Paul Leland Haworth, The Hayes-Tilden Election (Indianapolis: Bobbs-Merrill Co., 1906), p. 5.
3. Jean Edward Smith, Grant (New York: Simon & Schuster, 2001), p. 548.
4. William Harlan Hale, Horace Greeley (New York: Harper & Brothers, 1950), p. 337.
5. Geoffrey Perret, Ulysses S. Grant (New York: Random House, 1997), p. 421.
6. But finally, in their 1896 convention, the Democrats would nominate William Jennings Bryan for President on a platform calling for unlimited coinage of silver—another inflationary device—thereby parting company not only with the Republicans, but with the just-concluding presidency of Democrat Grover Cleveland.
7. Smith, p. 586.
CHAPTER TWO
1. Ari Hoogenboom, Rutherford B. Hayes (Lawrence: University Press of Kansas, 1995), p. 106.
2. Ibid., p. 117.
3. Ibid., pp. 187–88.
4. Congressional Globe, April 30, 1866, p. 2299.
5. Dictionary of American Biography, vol. XIII, p. 264.
6. Official Proceedings of the Republican National Convention, 1876, p. 296.
7. Chicago Times, June 16, 1876.
8. Hoogenboom, pp. 264–65.
CHAPTER THREE
1. Alexander Clarence Flick, Samuel Jones Tilden (Port Washington, N.Y.: Kennikat Press, 1963), p. 6.
2. Ibid., p. 5.
3. Donald B. Cole, Martin Van Buren and the American Political System (Princeton, N.J.: Princeton University Press, 1984), p. 369.
4. Biddle to Herman Cope, Biddle Correspondence, p. 256, quoted in Arthur M. Schlesinger, Jr., The Age of Jackson (Boston: Little, Brown & Co., 1946), p. 211.
5. Cole, p. 370.
6. Flick, p. 55.
7. Ibid., pp. 108–9.
8. Ibid., p. 130.
9. Ibid., p. 179.
CHAPTER FOUR
1. John Bigelow, ed., Letters and Literary Memorials of Samuel J. Tilden, vol. 2 (Port Washington, N.Y.: Kennikat Press, 1971), p. 439.
2. Quoted in Arthur M. Schlesinger, Jr., ed., History of American Presidential Elections, 1789–1968, vol. 4 (New York: Chelsea House Publishers, 1985), p. 1445.
CHAPTER FIVE
1. Quoted in Haworth, p. 45.
2. Ibid., p. 46.
3. Hoogenboom, p. 278.
4. Haworth, p. 318.
5. Ibid., p. 74.
6. Ibid., p. 76.
7. Ibid., pp. 85–86.
8. Quoted in James Ford Rhodes, History of the United States, vol. VII (Norwood, Mass.: Norwood Press, 1906), p. 231.
9. Ibid., pp. 241–43.
CHAPTER SIX
1. Quoted in Haworth, p. 200.
2. Milton Harlow Northrup, “The Inner History of the Origin and Formation of the Electoral Commission of 1877,” XL Century, 1901, pp. 927, 928.
3. Quoted in Charles Warren, The Supreme Court in U.S. History, (Boston: Little, Brown & Co., 1923), vol. 3, p. 27.
4. Edward S. Corwin, “The Dred Scott Decision in the Light of Contemporary Legal Doctrine,” American Historical Review XVII (1911), quoted in Warren, The Supreme Court, vol. 3, pp. 38–39.
5. New York Times, October 14, 1964, quoted in Warren, The Supreme Court, vol. 3, p. 114.
6. C. Peter Magrath, Morrison R. Waite (New York: Macmillan Publishing Co., 1963), p. 282.
7. 8 Wall. 603.
8. 12 Wall. 457.
9. Quoted in Magrath, p. 6.
10. Ibid., p. 12.
11. Ibid., p. 2.
12. Willard L. King, Lincoln’s Manager (Cambridge, Mass.: Harvard University Press, 1960), p. 87.
13. Ibid., p. 141.
14. Quoted in King, p. 193.
15. Ibid., p. 201.
16. Ibid., p. 207.
17. Ibid., p. 258.
18. Ibid., p. 277.
CHAPTER SEVEN
1. Carl Brent Swisher, Stephen J. Field (Washington, D.C.: Brookings Institution, 1930), p. 2.
2. Ibid., pp. 116–17.
3. Ibid., p. 343.
4. Ibid., p. 348.
5. In Re Nagle, 135 U.S. 1, 75–76 (1890).
6. Swisher, pp. 125–26.
7. Quoted in Charles Fairman, History of the Supreme Court, vol. VII suppl. (New York: Macmillan Publishing Co., 1988), p. 252.
8. Ibid., p. 277.
9. Ibid., pp. 425–26.
10. Strauder v. West Virginia, 100 U.S. 303 (1879).
11. New York Sun, January 31, 1877, p. 1.
12. Quoted in Allison Dunham and Phillip B. Kurland, eds., Mr. Justice (Chicago: University of Chicago Press, 1956), p. 73.
13. Murray v. Hoboken Land Co., 59 U.S. 272 (1856); 18 How. 272.
14. The Civil Rights Cases, 109 U.S. 3 (1883).
CHAPTER EIGHT
1. Fairman, History of the Supreme Court, pp. 56–57.
2. Quoted in Fairman, History of the Supreme Court, p. 65.
3. Ibid., p. 80.
4. Proceedings of the Electoral Commission (Washington, D.C.: Government Printing Office, 1877), p. 1001.
5. Ibid., p. 1007.
6. Ibid., p. 1014.
7. Quoted in Fairman, History of the Supreme Court, p. 95.
8. Proceedings, p. 1058.
9. Fairman, History of the Supreme Court, p. 112.
10. Quoted in Haworth, p. 258.
11. Ibid., p. 282.
CHAPTER NINE
1. James B. Bryce, The American Commonwealth (London: Macmillan & Co., 1889), p. 1.
2. King, p. 293, n. 23.
3. Fairman, History of the Supreme Court, p. 38.
4. Quoted in Fairman, History of the Supreme Court, p. 123.
5. New York Sun, July 6, 1977.
6. Ibid., August 4, 1877.
7. Fairman, History of the Supreme Court, p. 131.
8. Ibid., p. 132.
9. Ibid., pp. 132–33.
10. Ibid., pp. 135–36.
11. Allan Nevins, Abram S. Hewitt (New York: Harper & Brothers, 1935).
12. Ibid., p. 323.
13. Ibid., pp. 367–68.
14. Ibid., p. 372.
CHAPTER TEN
1. Flick, p. 403.
2. Quoted in Flick, p. 396.
3. Ibid., p. 396.
4. Ibid., p. 412.
5. New York Herald, February 10, 1879, quoted in Flick, p. 432.
6. New York Times, April 21, 1880, quoted in Flick, p. 450.
7. Quoted in Flick, p. 454.
8. Henry James Abraham, Justices, Presidents, and Senators (Lanham, Md.: Rowman & Littlefield Publishers, 1999), app. A.
EPILOGUE
1. Quoted in Magrath, p. 288.
2. Quoted in George Pellew, John Jay (New York: Chelsea House Publishers, 1980), p. 268.
3. Quoted in Willard L. King, Melville Weston Fuller (New York: Macmillan Publishing Co., 1950), p. 116.
4. Ibid., pp. 246–47.
5. Executive Order No. 8983, 6 Fed. Reg. 6569 (1941).
6. Quoted in Robert B. Stinnett, Day of Deceit (New York: Free Press, 2000), p. 235.
7. Quoted in Alpheus Thomas Mason, Harlan Fiske Stone: Pillar of the Law (New York: Viking Press, 1956), p. 581.
1. Telford Taylor, The Anatomy of the Nuremberg Trials (New York: Alfred A. Knopf, 1992), p. 634.
2. Quoted in Eugene C. Gerhart, America’s Advocate: Robert H. Jackson (Indianapolis: Bobbs-Merrill Co., 1958), p. 440.
3. William O. Douglas, The Court Years (New York: Vintage Books, 1981), p. 28.
4. Quoted in Mason, p. 716.
5. Mason, p. 718.
6. Quoted in Gerhart, p. 441.
7. Earl Warren, The Memoirs of Earl Warren (Garden City, N.Y.: Doubleday & Co., 1977), p. 356.
8. Ibid., p. 358.
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