• Daniel Ethan Finneran

Of Too Much Import: Thoughts On The Supreme Court

July 2018

In a letter addressed to his regally named attorney general and dear friend Caesar A. Rodney (and I do mean regally named; that unassuming “A” squeezed in between his Caesarian first name and his Anglican last stood for none other than Augustus. All that the humble statesman from little Delaware lacked was an adoptive uncle of some posthumous repute, a summer month synonymous with his grand sobriquet, and a laurel wreath to wear on his head), Thomas Jefferson captured well the essence of American governance at the turn of the century. Government, though, still at that time, might’ve been too strong a word.

Rather an experiment than a government—as we might recognize it today—the young nation Jefferson oversaw was still in the process of feeling its way out. Crawling sufficed for walking, teething for chewing, and America’s growing pains were becoming more chronic than acute. I suppose in many ways, those same pains haven’t yet let go their grip. No doubt, to the ever-prescient Jefferson, this would’ve come to him as no surprise.

At the time of his correspondence with Caesar A. Rodney in 1809, the still relatively newly independent country was in the process of finding its stride. Though the gunpowder had long since dissipated over Trenton and the swords at Yorktown were re-sheathed, our post-colonial energies remained highly strung. Ours remained a country in whose veins the rush and pulse of revolution continued to beat. It was less post-traumatic stress than post-dramatic anxiety, having achieved one of modern history’s greatest military upsets against one of all of history’s greatest armies and looking with uncertainty toward the next strategic move.

Many Americans still looked askance at the Constitution and its appended Bill of Rights. The president seemed too much in appearance like a king—the Senate like an aristocratic caste. The economy at the time was somewhat anemic. Tariffs were high and output was low. The federal coffers knew well what the founders neglected in the heat of the battle—namely, that liberty comes at a cost. Not just in that of flesh, of blood, and of young men, but in that of coinage as well. Both needed recompense, but growth and investment was a hard commodity by which to come.

What’s more, hampering the potential for America’s economic prosperity were those importunate Brits. Trade, so far as their stockholders and financiers were concerned, seemed to have little suffered from the eight-year war. It quickly reverted to the old antebellum trend, still looked upon with envy by the second-rate powers of the continent (among them, France, Russia, and Spain) of commercial dominance on the high seas. This was especially true along the Canadian and American coasts. With long-established maritime companies protected by the crown and her imposingly large fleet (which remained surprisingly stout after having endured both American and European assaults from the Caribbean to the Mediterranean all at once), trade was a boon for her majesty and a burden to the rest. Stronger now as an imperial power than ever she was before, Britain controlled the sea lanes, the fisheries, the refineries, and all international commerce and trade. Her bond market was the most robust in the world, her credit the most ready and eager.

In post-colonial America, it was an altogether less prosperous tale. Conflicts with Native Americans remained a constant, as did the claustrophobia of having been so unnaturally citified in the east. Sensing his countrymen’s yearnings to stretch their limbs, Jefferson made a deal. For pennies on the dollar (four cents per acre, to be exact), he doubled the size of the country just like that. Perhaps his and Robert Livingston’s deal with Napoleon and Talleyrand was unconstitutional at heart, but we wink at the sin. After all, who among us today would dare turn our back on such a delicious and enticing bargain of a deal?

However naïve Jefferson may have been about the French Revolution (he likened its early “successes” as having been achieved with remarkably little “innocent blood”; he perhaps looked too forgivingly upon his kindred French), of one thing he was absolutely certain: he was not nor would he become an American Napoleon. Just as well, for the towering philosopher of Monticello was a far cry from the squat pugilist of the Corsican isle. Already with a reputation for being somewhat effete (his conduct as governor of Virginia at the outset of the American Revolution was so ignominious—or so the Federalist media had its readership believe—that it almost blocked his path to the presidency), Jefferson was unabashedly a man of belles-lettres rather than blood and iron.

But still, as president, he acknowledged the exigencies of the office. Time and circumstance might soon call upon him to drop his beloved Cicero and pick up Carl von Clausewitz instead. Of course, the latter wouldn’t publish his seminal work, On War, until after Jefferson’s death, but Clausewitz’s reputation as a military tactician par excellence was already secure. Knowing as much, Jefferson reflected on his own role as president and commander-in-chief of a still somewhat vulnerable nation. It was on thinking about this that he penned his note to that majestic federal employee, Caesar A. Rodney. In it, Jefferson captured his role and his perception of himself in the greater scheme of things when he said that, “in times of peace the people look most to their representatives; but in war, to the executive solely”.

Being said executive, and—as such—the nation’s commander-in-chief, Jefferson realized an important truth that every similarly constructed republic knows too well; the onus of a battle and the consequences of sons slain in its pursuit reside entirely at the top. It would be upon him that all eyes would fall should fighting erupt. On the other hand, the representatives, at all other peaceful and auspicious times, would enjoy the public’s attention, its castigation, and its acclaim.

But Jefferson’s was a peculiar case. For even in times of peace (and, save for a few pesky Berbers who spent their days harassing American ships off the Libyan coast, his two terms as president were a rather peaceful eight years), he above all others was looked upon with overwhelming esteem. Even amongst the heralded representatives, his light shone brightest at all times. There needn’t be a war for his clout to grow and for Americans to be enamored of him. He was, at a lithe six-foot-two with high cheeks, higher scruples, skeletons in closets, and an unforthcoming grin, the very image of Plato’s philosopher king, without scepter nor crown nor qualm for their lack.

Most tellingly of all, though, in examining his excerpted note to Rodney, is not that which he said about himself nor of Congress, but that which he left out. In his correspondence, there was one branch of government he neglected, and quite blatantly so. In the modern day, so different in so many ways from that of his, we’d think his omission a crime against the trinity—a sacrilegious sideswipe at those dour justices clothed in black. And though he wasn’t much one for religion, this exclusion of the judiciary from the tri-fold Executive and Legislative Branches couldn’t be taken as a venial sin. Surely it was a blasphemy, and as a blasphemy, quite below him.

But that’s just it. The judiciary was indeed below him—and he below the legislature. At least as prescribed by that sturdy Constitution he helped to inspire if not pen, and under whose ever-watchful eye he now governed, that’s how the grand design was planned. From the outset, the Judicial Branch was but an after-thought. Hardly did it even have a visible presence in Washington D.C, least of all in America at-large. Humbler origins for this now most-venerated branch of government weren’t known, as it got its start not in an office, around whose perimeter would eventually loom Corinthian columns and vaulting porticoes and groveling reporters, but in a cramped basement. Those earliest justices assigned to the cellars enjoyed none of the influence nor the prestige, let alone the leg room, that their contemporaries would enjoy today.

Cases brought before it were few. Of course, America wasn’t as litigious a society as today she’s become, but there was doubtless less urgency for redress by the court. Over and above, its raison d’être was narrowly confined. It was to arbitrate controversies between one state and its neighbor or its citizens therein. It was to decide on the constitutionality of congressional acts. Yet even these very decisions were often contestable, if not wholly ineffectual.

Andrew Jackson made this much clear, when after having signed the despicable Indian Removal Act in 1830, he proceeded to flout the court’s enjoinder against his genocidal decree. Chief Justice John Marshall certainly had his prerogative to decide the case—a fact not lost on Old Hickory—but that mattered little. The perpetrator of the Trail of Tears impudently scoffed at the court, knowing that to enforce its decision would require of it the inconceivable. He, not Marshall, had the sword and the army and thus, on their plight and with muzzles at their backs, the Native Americans trekked west.

Much to the court’s chagrin, Jackson had a point. It simply hadn’t the power—the supreme in Supreme Court, by which we know it today, didn’t yet exist. Nor would it until the implications of Marshall’s decision against Marbury finally settled in, but that would take time.

And time leads us always to the present. Fast forward to the here and now and see how things have changed. See how the Supreme Court reigns, as never before it did. See how it’s become incontrovertibly supreme when once it was weak. See how it, with its three terse sections of Article III, has leap-frogged those much more verbose Articles I and II. See how a generation of Americans breathlessly awaits the lifetime appointment of an unelected official. See how an oligarchy—a gerontocracy—takes in its hand a gavel and supplants our representation and our republic with a thrust and a decisive bang. A bang so penetrating it is, that even Jackson might sit up straight and listen. A sound so deafening, that even Jefferson would take heed. And upon heeding, he wouldn’t be so remiss as to leave out from his letters the Judiciary, the primus inter pares, the first among equals, the Supreme Court ever again. Still he, and Jackson, and all of us today know that the Supreme Court has become something it was never meant to be. Now, be it a time of peace or war, it’s not the people who look to the representative or the executive; it’s the justice who oversees us.

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