Statesmanship: When a Supreme Court Chief Justice Is More Than a Chief Justice
Justices of the Supreme Court are by definition both politicians and public servants. Chief justices share these characteristics but are also imbued with a special aura of authority. Their special position in the Court itself often seems like more than it is, but most of the men who have sat in the chief’s chair have gotten there because they have a special relationship with the president who appointed them, and therein lies the source of much of their prestige. This exalted position often comes with a price, as presidents are known to call in favors, requiring chief justices to serve two roles — and two masters — simultaneously. The results of such divided loyalties have seldom improved the standing of the chief justice or of the Court he heads.
John Jay as chief justice and diplomat
Before John Jay became the Court’s first chief justice, he had had a brilliant career as a diplomat. His first foray into mediation occurred in 1773, when at the age of 28 he served as secretary to the Royal Boundary Commission, assigned to mediating a boundary dispute between New York and New Jersey. The following year, he was a member of the New York Committee of Correspondence, whose job it was to maintain good relations with Mother England. In 1779, Congress appointed him minister to Spain, and in 1782, he was sent to assist John Adams and Benjamin Franklin in formulating the Treaty of Paris, which ended the Revolutionary War. Jay’s insistence that England recognize his country as the “United States,” rather than as its former colonies, trading off America’s insistence that England surrender control of Canada, helped bring all the signatories to the table. When he returned in triumph to American shores in 1784, Jay was named secretary of foreign affairs for the Confederation, a post he held until 1789.
Jay, who had grown increasingly skeptical about the viability of a confederation of states, authored three of the Federalist Papers, which were essentially public relations pieces promoting federalism. When the newly elected George Washington offered Jay the position of chief justice, Jay eagerly accepted. His expectations that he would be able to use his new position to ensure the supremacy of federal law were disappointed, however. Little business actually came before the Court, and the burden of circuit riding only added to the Court’s poor morale.
Jay grew bored and impatient. Convinced of the Court’s ineffectiveness, he jumped at Washington’s offer, in 1794, to serve as envoy extraordinaire, sailing to England to negotiate a variety of monetary disputes that lingered in the wake of the Treaty of Paris. The Jay Treaty, which exchanged American trading rights in the West Indies for England’s withdrawal from their remaining North American military outposts, probably prevented another war. The agreement was also highly controversial, managing to alienate both Southern Republicans, who bore the brunt of Jay’s financial settlement, and Federalists like Washington himself. The Senate, which finally ratified the Jay Treaty after months of debate, had cause to remember the heated debate about Jay’s appointment as Washington’s envoy. One proposal circulated at the time maintained that “to permit Judges of the Supreme Court to hold at the same time any other office of employment emanating from and holden at the pleasure of the Executive is contrary to the spirit of the Constitution and as tending to expose them to the influence of the Executive, is mischievous and impolitic.”
Fortunately, while Jay was away in England doing the president’s business, he had been elected governor of New York. Everyone was relieved when he handed in his resignation as chief justice before becoming his state’s chief executive.
Earl Warren and the Warren Commission Report
After the assassination of John F. Kennedy in Dallas in 1963 prompted national debate about who actually killed the president, Lyndon B. Johnson set up a commission to investigate the circumstances surrounding the murder. Chief Justice Earl Warren was asked to head the commission, and to his everlasting unhappiness, he agreed to do so. Warren’s instincts told him not to breach the separation of powers, but like so many others, he found himself no match for Johnson’s powers of persuasion.
Inevitably, the commission became known as the Warren Commission and its final report as the Warren Report. The investigation, which lasted almost a year, took testimony from 552 witnesses and 10 federal agencies and took place almost entirely behind closed doors. Warren was not an active participant in these proceedings, but he did help shape the commission’s final report. Chief among its findings was that there was no conspiracy — either foreign or domestic — to kill the president. Lee Harvey Oswald was declared the lone gunman, and his assassin, Jack Ruby, was found to have no connection to either Kennedy or Oswald.
When it was published in1964, the Warren Report not only failed to settle the controversy surrounding the Kennedy assassination, it also raised even more questions. The Commission, which had not had complete access to the relevant FBI and CIA files, was itself accused of conspiring in a whitewash. Warren himself was unhappy not just with the inconclusiveness of the commission’s findings, but also with the dissension among its members. As nominal head of the group of politicians and public figures who constituted the investigating committee, Warren was blamed for its shortcomings. Allegations of Communist sympathies that had led to previous impeachment efforts aimed at the Chief Justice came back to haunt him. Public dissatisfaction with the Warren Report led, in 1979, to a congressional investigation of the investigation. By that time, Warren was in his grave, remembered for the revolution in individual rights that occurred under his watch at the Supreme Court — and by the nagging suspicion of government collusion still connected with his mistaken venture outside the judicial realm.