Justice Stevens on Oath-Taking and Dolley Madison

Supreme Court Justice John Paul Stevens rarely makes public appearances in D.C. outside the Court, but he made an exception Thursday, speaking before a large crowd at the Newseum's Knight Center. He even made a bit of news, revealing that if he had his druthers, new Supreme Court justices from now on would be sworn in at the Court, not at the White House, to symbolize the Court's independence.

Stevens, 88, was at the Newseum to moderate a discussion on the 1803 landmark decision Marbury v. Madison with panelists Clifford Sloan, his former law clerk and currently a partner at Skadden, Arps, Slate, Meagher & Flom, and David McKean, staff director of the Senate Foreign Relations Committee. Sloan and McKean are authors of a new book on the ruling, called The Great Decision: Jefferson, Adams, Marshall and the Battle for the Supreme Court. 

It was clear that Stevens was there not only to support his former clerk, but also to convey his enthusiasm for Marbury v. Madison, which first established the power of the Supreme Court to declare acts of Congress unconstitutional. In brief opening remarks, Stevens said that in his first year at Northwestern Law School in 1945, his professor Nathaniel Nathanson had students spend six or seven weeks on Marbury, studying it from all angles. "That was the beginning of my legal career."

Stevens made another interesting personal aside to accentuate the importance of separation of powers which the Marbury decision has come to symbolize. Stevens recalled that when he joined the Court in 1975, President Gerald Ford, who had appointed him, came to the Supreme Court for the oath-taking. Six years later President Ronald Reagan did the same for the swearing-in of Sandra Day O'Connor. But then, Stevens said, the trend went the other way, with justices traveling to the White House for at least one of the oaths of office they take.

It was far preferable, Stevens said, when Presidents would come to the Court, because when the ritual is over, "the justice is on his or her own" at the Court, separate from the President who made the appointment. "I was troubled by the incorrect symbolism" when justices were sworn in at the White House, and did not attend, Stevens said. (Stevens did not mention it, but he did attend -- and presided over -- the 2005 swearing-in at the White House of Chief Justice John Roberts Jr., but that was under different circumstances. After the death of Chief Justice William Rehnquist, the oath-giving duty fell to Stevens as the senior associate justice.)

 

Stevens concluded with the hope that in the future, new appointees to the Court will be sworn in at the Court, to underscore the "very separate status" of the justices. President Obama, take note.

Then Stevens played the role of avuncular moderator, tossing out subjects for the panelists to discuss and settling back to listen attentively. Not all of the topics he suggested were dry or esoteric. Stevens asked the authors to discuss the "romantic interest" a politician at the time had in Dolley Madison, the wife of President James Madison, the respondent in the case. Sloan warmed to the subject, which is mentioned in the book. It was Gouverneur Morris, senator from New York and an author of parts of the Constitution, who would note ambiguously in his diary that he has "passed the evening" with Dolley Madison.

The event was co-sponsored by the Supreme Court Fellows Program Alumni Association, whose president, Ronald Collins, is a scholar at the First Amendment Center at the Newseum. In introducing Stevens, Collins praised his "steadfast commitment to liberty," noting that in his career on the Court, Stevens has written 112 opinions on freedom of expression issues -- 24 of them in the majority. (Photos by Diego Radzinschi.)

Comments

[Eric Lindblom]

I would go further than Justice Stevens and suggest that Supreme Court justices also should not attend such events as the State of the Union speeches of Presidents, much less White House dinners and the like.

I doubt that Supreme Court justices (or any judges) can remove contemporary political considerations, events and personalities from influencing their decisions. But keeping the members of the Supreme Court (and other courts) as separate from current legislative and administrative efforts, events, and office holders -- other than in formal court proceedings --- the more independent the courts and their decisions are likely to be.