Judicial Independence

• Author: Hon. William H. Rehnquist
• Position: The author was chief justice of the United States from 1986 to 2005. This article is an adaptation of a speech presented to the Tampa Bay chapter of the Federal Bar Association on December 11, 1999.
• Pages: 59-64

Published in Litigation, Volume 45, Number 3, Spring 2019. © 2019 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not

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Judicial

Independence

HON. WILLIAM H. REHNQUIST

The author was chief justice of the United States from 1986 to 2005. This article is an adaptation of a speech presented

to the Tampa Bay chapter of the Federal Bar Association on December 11, 1999.

Justice Robert Jackson of the Supreme Court, for whom I once

clerked, wrote a book about the Court half a century ago, in which

he said,

[a]s created, the Supreme Court seemed too anemic to endure

a long contest for power.... Yet in spite of its apparent vulner-

able position, this Court has repeatedly overruled and thwart-

ed both the Congress and the Executive. It has been in angry

collision with the most dynamic and popular Presidents in our

history....

This description may have been slightly shaded to get the

attention of the reader, but there is a great deal of truth in it.

From time to time, commencing soon after this nation’s birth,

our co-equal branches of government have bristled at the idea

of an independent judiciary, and their hostility has often been

directed at the United States Supreme Court, the most visible

embodiment of that independence.

The Supreme Court got off to a very slow start, deciding some

60 cases in its first 10 years. Its first chief justice, John Jay, was

appointed a special ambassador to England by President George

Washington to negotiate what ultimately became the Jay Treaty.

He left the United States in the spring of 1794 and did not return

until the summer of 1795. There is no evidence that his absence

in any way handicapped the Supreme Court from doing its work.

When Jay returned, he learned that he had been elected gover-

nor of the state of New York in absentia (imagine that), and he

resigned from the Supreme Court to accept the governorship.

Jay’s successor, Oliver Ellsworth, had a remarkably similar

experience. John Adams, who succeeded Washington as presi-

dent, sent him on a mission to France to try to bring about an

end to the undeclared war between the two countries. Ellsworth

became ill while in Paris, and in December of 1800, he submitted

his resignation to President John Adams.

By then, Adams had become the first lame duck president

of the United States. He was defeated by Thomas Jefferson in

November 1800, but he remained in office until March 1801. The

election of 1800 is referred to by many American historians as

the second American Revolution. The Federalists, led by George

Washington, Alexander Hamilton, and John Adams, had governed

the nation for the first 12 years of its existence. They believed,

as Hamilton put it, that the country should be governed by the

“rich, the able, and the well born.” They preferred England to

France as an ally of the United States. Thomas Jefferson and his

party, on the other hand, believed in an agrarian democracy and

favored France as an ally over England. In the election of 1800,

Jefferson and his party took control of the presidency and both

houses of Congress from the Federalists. During this lame duck

Originally published in our Winter 2001 issue.