Ruminations, 19 VTBJ, Summer 2019-#12

Authorby Paul S. Gillies, Esq.
PositionVol. 45 2 Pg. 12


Vol. 45 No. 2 Pg. 12

Vermont Bar Journal

Summer, 2019

Politics and the Court

by Paul S. Gillies, Esq.

On November 18, 1944, President Franklin D. Roosevelt attended a cocktail party in Burlington. William Hassett, who traveled with FDR for several years, reported that Stella Pratt Moulton, the wife of Vermont’s Chief Justice, told the president, “although her husband was a ‘morbid’ (new descriptive adjective) Republican, she had voted for the President; also to tell him that the wives of the old-line Republican members of the faculty of the University of Vermont all had voted for him.”1 Hassett’s memoirs were published in 1960. Chief Justice Moulton died in 1949, and may never have known what his wife told the President.

The private lives of justices are none of our business, but all the same it is hard not to focus on the idea of a “morbid Republican.” Did Mrs. Moulton reveal something about the Chief? Would his political philosophy show in his decisions on the court? There are plenty of decisions to choose from. Moulton served 30 years as a judge, seven as a Superior Court Judge, 23 on the Supreme Court, and nearly eleven of those years as Chief Justice. He authored more than 100 decisions as Chief, more than 160 as an Associate Justice.2 Are his political opinions reflected in this body of work?

Chief Justice John G. Roberts, Jr. said recently, “There are no Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their best to do equal right to those appearing before them.”3 But some judges are conservative and some are liberal and some are progressive. These biases are political, even if they are detached from any political party platform. Let’s investigate.4

Standard of Review

We begin by defining terms. As a Republican, Sherman Moulton was not alone. Every Governor from 1854 to 1962, when Phil Hoff became the first Democrat to be elected to the high office, was a Republican. Vermont was Republican. There were factions within the Republican Party, a conservative wing and a progressive wing, but Vermont progressivism was very unlike the progressivism of 2019. And the Republican Party of the thirties and forties was not like the party or its positions today. The natural fiscal conservatism of state leaders was hardened by the two world wars and the depression. FDR won every state in the nation in the election of 1936 except Maine and Vermont.5 He never won Vermont in four presidential elections.6

The Republican Party of the 1940s was not purely conservative. It was the first major party to endorse an equal rights amendment for women in its platform, in 1940. But it was opposed to the Democrats’ attempts to concentrate power in the federal government, consequently limiting the powers of states and interfering in private commerce, setting minimum wages and hours, fixing prices, and regulating the workplace.

“Morbid” in this context is more challenging. An online dictionary defines it as “characterized by or appealing to an abnormal and unhealthy interest in disturbing and unpleasant subjects, especially death and disease.” Synonyms include “ghoulish, macabre, gruesome, grotesque, ghastly,” and “unwholesome.”[7] As applied to politics, the term has an obvious pejorative meaning. Arthur Schlesinger, Jr. labeled Richard Nixon a morbid Republican, in Kennedy or Nixon: Does It Make a Difference? (1960).8 The first use in a Vermont paper came in 1886, when the editor of the Argus and Patriot, a Democratic newspaper published in Montpelier, commented, “This record of the administration for paying the debts of the government is a most satisfactory and enviable one, and abundantly demonstrates the economic ability and tendency of a thoroughly Democratic government. Those morbid Republicans, renters who have prophesized financial ruin to the government by a Democratic administration, are invited to consider those facts and figures.”9

Perhaps Mrs. Moulton intended it to mean “dedicated” or “determined” (but not “rabid”), connoting a political philosophy that was unsusceptible to change. We can only imagine the discussions that must have occurred at the Moulton home during the era of the New Deal, the U.S. Supreme Court’s repudiation of its programs, and the threat of enlarging the highest court in the land to overcome that conservative opposition to FDR’s efforts to introduce “socialist” programs and expand the reach of the federal government.10

“Morbid” wasn’t easy, but how about “conservative”? The political dividing line between conservative and liberal or progressive judges is reflected in several ways, including the relative deference to the legislature in reviewing acts for their constitutionality, and a consequent reluctance to exercise judicial review to undo what the legislature has enacted. “Activist” judges are more likely to invalidate legislation on such grounds.11 In criminal law, a conservative judge may be less likely to recognize the privacy rights of landowners in the investigation of crime, less likely to extend constitutional protections against unlawful search and seizure, less willing to dismiss prosecutions on the dividing line between words taken down after Miranda warnings than before. To a conservative, “judicial legislation” is anathema.

Another issue is delegation. The laws must have standards to be enforceable; without them, whatever action is taken is arbitrary and indefensible. This idea has defeated many laws at the federal and state levels, on separation of powers grounds, where the legislature has improperly ceded to the executive the power to make quasi-judicial decisions or quasi-legislative rules or ordinances, with undefined discretion.

Conservative judges share a strong belief in precedents. What has been decided should not be easily overturned. They favor property rights, are likely to find unconstitutional takings, and prize Article 2 (compensation for taking private property for public purposes) over Article 5 (police power).

Categorizing judges and justices by these criteria is risky. Louis Peck was a conservative, as shown by his dissents. But trying to classify other judges and justices often defesus. Decisions are based on precedent, statute, the constitution, and legal ideas, under specific facts, and there is usually little room for discretion.12

How can we really know Sherman Roberts Moulton? We have his decisions, and we have a few other facts. We know he was born in Burlington in the house that John Dewey lived in before him. His father was a banker who owned a stock farm in Randolph that made “butter of great perfection,” that won a gold medal at the Paris Exposition of 1889 and another at the 1893 Chicago World’s Fair.[13] We know Sherman Moulton promised 30 Revolutionary War era drums to the Vermont Historical Society in 1915.14 We have his book, The Boorn Mystery (1937), a defense of the Vermont Supreme Court’s actions in the murder convictions of two brothers accused of killing another, notorious in Vermont judicial history for the arrival of the victim shortly before one of the brothers was to be hanged.15 Moulton was a graduate of Harvard Law School. In a book published to honor the graduates of the school, he included his score on the bar exam (95.28, to be precise) in his biography.[16] As Reporter of Decisions, he was the one to remove the synopsis of attorneys’ arguments from Vermont Reports, a long-standing practice of the court. These details tell us nothing about his politics or his judicial views. If there are revelations of a conservative temperament, they would appear in the opinions of the court that he authored, and those he joined.

Sherman Moulton’s years on the court saw many changes and challenges for Vermonters and the world, including the 1927 food, the 1929 Wall Street Crash and the depression that followed, prohibition, and World War II. In his years as a judge or justice, women were given the right to vote and serve on juries, motor vehicles replaced horses, radio became omnipresent, and FDR brought on the New Deal. The first federal laws that Roosevelt sponsored to respond to the depression were struck down by the Supreme Court. These decisions defined conservative judicial thinking.

Judicial Review

FDR was frustrated by the rulings of the Supreme Court that threatened to undo the work his administration had done to respond to the depression. The New Deal and the recovery were threatened. His answer was to expand the court, which nearly came to pass, had Justice Owen Roberts not changed his position and begun voting with the court’s more liberal members (the “switch in time saved nine”).17

During the mid to late 1930s, this judicial crisis would have been a subject no justice or judge could ignore. It would have been talked about over a justice’s dinner table and in the chambers of the court in every state, including Vermont. Everyone watched as the Supreme Court of the United States struck down elements of the New Deal, including acts for debtor relief, a poultry code, a price fixing law for agricultural products, a tax on coal, and a law regulating the hours women and children could work.18

During Sherman Moulton’s years on the Vermont Supreme Court (1926-1949), his court exercised judicial review seven times to void acts or statutes, four of them based on Section 5 of the constitution, the separation of powers clause. Struck were a local ordinance requiring high fees for a junk dealer license that raised revenue and allowed trustees to grant licenses on their sole discretion; a junk dealer’s19 ordinance that gave total discretion to the village trustees where a junk yard may be located;20 a statute requiring the Supreme Court to...

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