Chief Justice of the Supreme Court of the United States John Roberts delivers the Seventh Annual Barbara K. Olson Memorial Lecture to The Federalist Society.
On September 11, 2001, at the age of 45 and at the height of her professional and personal life, Barbara Olson was murdered in the terrorist attacks against the United States as a passenger on the hijacked American Airlines flight that was flown into the Pentagon. The Federalist Society established this annual lecture in Barbara's memory because of her enormous contributions as an active member, supporter, and volunteer leader. Solicitor General Theodore B. Olson delivered the first lecture in November 2001. The lecture series continued in following years with other notable individuals- The Federalist Society
Eugene B. Meyer
Eugene B. Meyer's is President of The Federalist Society.
Chief Justice John G. Roberts
John G. Roberts, Jr., Chief Justice of the United States, was born in Buffalo, New York, January 27, 1955. He received an A.B. from Harvard College in 1976 and a J.D. from Harvard Law School in 1979.
He served as a law clerk for Henry J. Friendly of the United States Court of Appeals for the Second Circuit from 1979-1980 and as a law clerk for then Associate Justice William H. Rehnquist of the Supreme Court of the United States during the 1980 Term.
He was Special Assistant to the Attorney General, U.S. Department of Justice from 1981-1982, Associate Counsel to President Ronald Reagan, White House Counsel's Office from 1982-1986, and Principal Deputy Solicitor General, U.S. Department of Justice from 1989-1993.
From 1986-1989 and 1993-2003, he practiced law in Washington, D.C. He was appointed to the United States Court of Appeals for the District of Columbia Circuit in 2003.
President George W. Bush nominated him as Chief Justice of the United States, and he took his seat on September 29, 2005.
Good evening. I'm Eugene Meyer, President of the Federal Society and IThank you. I wanna welcome you all to the Seventh Annual Barbara Olson MemorialLecture. Earlier this month, I visit the Pentagon 9/11 Memorial. It's a painful refresherin what we have lost and on a personal basis, seeing the name Barbara K. Olson on theplaque was especially poignant. The memorial this memorial lecture series started asmany of you know with Ted Olson's inaugural lecture which reminded us of what itmeans to be an American and how our legal tradition is a critical part of our identity asAmericans. Lawyers are at their best when they recognized this connection between lawand our American identity. Both Ted and Barbara understood this connection. We wantthe lecture series to remind lawyers of it so that they foster legal principles that advancedindividual freedom, personal responsibility, and rule or law. We're also delighted todayto have with us not only Ted and his wife, Lady but also his mother and his stepfather.Thank you all again.Ted's inaugural lecture was followed by Kenneth Starr, Judge Robert Bork, Justice Scalia,Judge Randall and Vice-President Cheney. Actually, we are very pleased by thedistinguished lecturers we have had and even more pleased to have the honor of hostingthe Chief Justice today. This conference that we're having this weekend and this lectureseries both focus partially on what is special about America. One of the things that isunique is the system of carefully separated powers. In his hearings, Chief Justice Robertsdiscuss the roles of judiciary under that system as being one of an umpire. It is not thathe lacks the ability or the willingness to take strong positions. As one who has argued 39cases before the Supreme Court, he has done that often and usually with great success.Of course, sometimes the circumstances have been difficult or challenging. He wasfamously asked if one case he had lost nine to nothing and why that had been result andresponded there have been only nine justices. As a Harvard Law School graduate andclerk for Justice Renquist on the Supreme Court in addition to his extensive experience inthe Solicitors General office and at Hogan & Hartson, he has sterling credentials andmuch experience in taking such strong positions. Indeed, he was widely thought to be theleading Supreme Court advocate of his generation when he was elevated to the first courtof appeals and then the Supreme Court. But he has now taken on a different role. As anyserious sports fan will attest, the role of an umpire is a critical one but thankless. A judgewill decide cases from time to time where not only many of us in this room won't like theresult but often that good judge won't like it either. But if the decision is correct, theproblem is with congress or perhaps occasionally we don't like something in theconstitution. Those are political problems. His task is to make sure that the pitch just alittle bit outside is not call the strike just the pitcher is likable or has a heart renderingstory. I am honored to introduce to you a man who is well-suited by experience,judgment ability, and temperament to call them as he sees them which is all that can beasked. The Chief Justice of the United States, the honorable John Roberts.Thank you. Thank you very much. I appreciate it. Thank you very much. Thank youfor that very warm welcome and thank you Eugene for that generous introduction. I amvery pleased to be here among friends, old and new to deliver the Seventh AnnualBarbara Olson Lecture.Barbara was a good friend and I consider it an honor to deliver the lecture named afterher. Whenever I think of Barbara, my first reaction is to smile. I suspect that is true ofmany of those who knew her and what a testament that is to her life. Despite the horrorand savagery that took her from us, her life shines through and triumphs over that evil.Barbara brought courage to her convictions and she inspires each of us to have thecourage of our own. The Barbara Olson Lecture Series is dedicated to two distinctlyAmerican ideals that Barbara held dear, limited government and the spirit of freedom.The Federalist Society quite properly looks to the constitution as our nation's foremoststatement of principles that constrain government and preserve liberty. For that reasonI've decided to speak a little bit this evening about James Madison. I figured the subjectwas a safe bet for this audience. Madison after all was the Father of Our Constitution, theFather of the Bill of Rights, the author of more than one third of the federalist papers andor course, the guy on the society's ties. No one wrote more persuasively than James Madisonin Federalist 39 and Federalist 51 in defense of the separation of powers including theimportance of an independent life tenure judiciary in the constitution scheme.Tonight, I would like to talk briefly about an aspect of Madison that typically receiveslittle attention, his judicial appointments as the nation's fourth President to the SupremeCourt. Madison's biographers have given his two judicial appointments to the courtrelatively brief treatment. For example, Ralph Ketcham's 600 plus page biography ofMadison makes no mention at all of his Supreme Court selections. An Irving Brant's six-volume biography of Madison devotes fewer than six pages to the matter. Now, there'sperhaps good reason why Madison biographers have not focused on this aspect ofMadison's presidency. Madison himself was preoccupied with other issues. When ChiefJustice Marshall administered the presidential oath to Madison on March 4, 1809, thepressing issues were matters of war and peace. The United States had attempted tomaintain its neutrality in the on-going conflict between Britain and France through anunpopular and unsuccessful trade embargo. President Madison was immediatelyconsumed as chief executive with the same foreign affairs issues that had occupied himwhen he was Jefferson's secretary of state. You will recall that Madison's predecessor assecretary of state had been Marshall himself and that Marshall had left some unfinishedstate department business for Madison to take care of including the delivery of somecommissions. Now one can easily imagine Chief Justice Marshall telling PresidentMadison at his inauguration that he need not concern himself with the Supreme Court.After all, Marshall could point out that Madison had been a successful litigant in thatcourt six years earlier and since issuing its decision in Marbury versus Madison, thecourt was managing its own affairs quite well. Madison might even have heeded thatadvice. He did not share Jefferson's overt hostility towards the marshall court. As a matter ofprinciple, Madison recognized the need for a strong and independent judiciary.As a republican, he of course had differences with Marshall's nationalist vision but thedifferences in historic perspective were principled and measured. As Professor Gordonwould point it our in his recent book, Revolutionary Characters, part of Madison'snationalist vision was a greater appreciation than many of his fellow republicans of therole of the Supreme Court. Now on a personal level, Madison and Marshall werefriendly. Madison did not share Jefferson's abiding suspicion of Marshall. Thatsuspicion is best captured in the advice that Jefferson gave to one of Marshall's judicialcolleagues. Jefferson said and I quote, "When conversing with Marshall, I never admitanything. So sure you admit any position to be good, no matter how remote from theconclusion he seeks to establish, you are gone. So great is his sophistry that you mustnever give him an affirmative answer or you will be force to grant his conclusion. Why,if he were to asked me if it were daylight or not, I'd reply "Sir, I do not know. I can't tell."We have some advocates like that before the court these days. Now, Jefferson's advice,which sounds a lot like a Miranda warning, stands in sharp contrast to Madison'sconfidence in Marshall. Together, Marshall and Madison had actively advocatedratification of the constitution at the Virginia Convention and Madison defer to Marshallfor the presentation and defense of Article 3. For his part Marshall, had watchedMadison successfully respond to Patrick Henry soaring oratory through fastidiouspreparation and careful logic. Marshall later stated "If I were called upon to say who ofall the men I have known had the greatest power to convince, I should perhaps say, Mr. Madison.Now, whether he to or not, President Madison did need to turn his attention to theSupreme Court some 18 months after his inauguration. Associate Justice WilliamCushing of Massachusetts who had turn down President Washington's nomination asChief Justice in 1796 because of, as he put it, his infirm and declining state of health hadlong outlived his own prognosis. He nevertheless did pass away on September 13, 1810and Madison faced the task of choosing a successor. By all accounts the matter startedout poorly. Former President Jefferson and Chief Justice Marshall called, the great llamaof the mountain, promptly weighed in on the matter from Monticello issuing highlypartisan advice. Custom and the obligations of circuit riding at the time called fora nominee from New England. But Jefferson held deep suspicions about New Englandlawyers and his views were further tainted by New England's opposition to hisunsuccessful embargo. Jefferson urge Madison to replace Cushing from among the NewEngland republicans who strongly supported Jefferson's trade restrictions. That listhowever was bound to be short. New England remained the Federalist strong hold andeven many of New England's Republicans had opposed the embargo which was wildlywildly and widely unpopular in New England.Jefferson also appeared to harbor suspicions about another matter, the Supreme Court'sdecision five months earlier in Fletcher versus Peck. Fletcher like Marbury is of coursea landmark decision. It confirmed the court's authority to strike down state statutes asunconstitutional. In a characteristically deft opinion Marshall concluded that a Georgiastatue invalidating a prior Georgia legislatures corrupt sale of the so-called Yazu lands,embracing most of present day Alabama in Mississippi violated the contract clause.Jefferson and Madison had intimate familiarity with this long simmering scandal. Ascandal that pitied Georgia against land claimants including both Northern Landcompanies who demanded the benefit of their bargain and third parties who hadpurchased land from those companies.Just to review the facts very briefly, in 1795, Georgia legislators sold 35 million acres ofpresent day Alabama and Mississippi, very cheaply, to Northern Land Speculators atabout 1 ÃƒÆ’Ã¢â‚¬Å¡Ãƒâ€šÃ‚Â½ cents per acre. Now many of those speculators promptly resold the land tothird parties. Georgia's title to the land was debatable and the individual legislatorsprofited handsomely from the sale. The rascals where thrown out of course in the nextelection and the subsequent legislature rescinded the sale. This precipitated the vigorouspublic debate and then as it would now, the inevitable law suits.In 1801, President Jefferson had appointed Madison, his secretary of the treasury AlbertGallatin and his attorney general Levi Lincoln to a commission to recommend a solution.They proposed a complex compromise that was basically a federal bailout. Georgiawould cede the Yazu lands to the United States in exchange for a payment. The UnitedStates would partially compensate the purchasers and the United States would hold theland for the creation of future states. Congress however was unwilling to act on thatproposal and the litigation went forward.Jefferson had no sympathy for the Northern Land companies and he viewed Marshall'sdecision overruling the Georgia's statue and reviving their claims as yet another exampleof judicial arrogance. Now many of the potential Supreme Court nominees from NewEngland had connection to the land purchasers in the Fletcher litigation. In Jefferson'swords, they were all infected with Yazuism. An affliction that nowadays turns up only atscrabble championship.Jefferson first encourage Madison to replace Cushing with his forme attorney generalLevi Lincoln who'd serve with Madison on this Yazu commission. But the elderlyLincoln who was nearly blind from cataracts resisted. Marshall nominated Madisonnominated him anyway. And the senate promptly confirmed him in January 1811 butLincoln steadfastly refused to serve.Madison next turned to Alexander Wollcott, a Federal Revenue collector in Connecticutwho had vigorously supported Jefferson's embargo. Wollcott, an outspoken partyoperative satisfied Jefferson's criteria but he was wildly unpopular as revenue collectorstend to be. The senate soundly rejected him on February 13th, 1811 by a vote of nine infavor and 24 against.Now, at this point Madison began to retreat from Jefferson's partisan advice. He turnedto a person from outside the ranks of solid Jeffersonian republicans. A person who had infact been a Federalist but now as an independent who lean toward Republican principles,John Quincy Adams. Madison had developed a special kinship with Adams who hadbucked popular sentiments in Massachusetts and had supported the trade embargo.Now, if I could have just a moment for it aside, I should point out that chief justices alsohave a special kinship with John Quincy Adams. There is a in the office that chiefjustices had traditionally use of the conference room at the Supreme Court. There is asofa that is the sofa on which John Quincy Adams died. He was on the floor of the housewhen he had a stroke. He was taken to this sofa and of course, at that time, the court metat the basement of the capitol. The sofa made its way there and moved over with thecourt in 1935.In any event, Madison had already displayed confidence in Adams by appointing him thePresident's Minister to Russia. Madison promptly nominated Adams to the SupremeCourt on February 21, 1811, eight days after Wollcott's nomination was rejected.Madison did not wait for Adams's ascent. He was after all halfway around the world inSt. Petersburg. The Senate promptly and unanimously confirmed Adams. But Adams, aconsummate politician, had different plans. When the news reached him, he respondedfrom St. Petersburg that he did not want the job.Adams who had presidential ambitions humbly wrote to Madison "I have longentertained a deep and serous distrust of my qualifications for a seat on the bench." NowChief Justice Marshall who had been appointed chief justice by Adams's father concurredin Adams's self-evaluation. He told the confidant with reference to Adams that nothingis more to be deprecated than the transfer of party politics to the seat of justice.Now, President Madison by this point clearly faced an embarrassing situation. He had losthis first nominee to physical infirmity, his second to resounding rejection, and his third topolitical ambition. To complicate matters further, Associate Justice Chase died,creating a second vacancy and the Supreme Court was unable to sit for its 1811 term forlack of a quorum. Now at this point, Madison broke cleanly from Jefferson's guidance.He nominated two individuals who are now among the famous justices of the 19thcentury. Albeit for very different reasons, Gabriel Duval and Joseph Storey. It happensthat he made the joint nomination 196 years ago yesterday. And the senate confirmedthem both unanimously the next business day. That's right. The next business day.Gabrel Duval, a 59-year-old former judge from Maryland replaced fellow MarylanderChase. As I noted earlier, geographic consideration played a very large role in SupremeCourt nomination at the time. Duval had served both Jefferson and Madison as thecomptroller of the treasury where he had earned Madison's confidence for compcompetence. He gained his fame far more recently however as the subject of a ChicagoLaw School Academic Commentary. Professor David Curry who sadly passed away lastmonth, suggested in the 50th anniversary of the University of Chicago Law Review, thatJustice Duval was the least significant justice in the history of the Supreme Court. Atleast up until then. But but Justice Duval was not without his defenders on the Chicagofaculty. Professor Curry's colleague Frank Easterbrook immediately rose to Duval'sdefense. He wrote a strongly worded rebuttal identifying several other justices that wereeven less significant. As Professor Easterbrook put it, he was not about to let Curry'schoice stand "without serious consideration of candidates so shrouded in obscurity thatthey escaped proper attention even in the contest of insignificance. Now now, I am notgoing to enter into this titanic debate and I hesitate to even talk about Justice Duval forthe fear that I might elevate his significance and deprived him of the source of his fame.And I do realize that with only two years of service on the court, the balloting for the titlemay still be open. But I can't resist just a few words. Historians agree that Justice Duvalwas a warm and congenial colleague on the Marshall Court. A fellow justice describedhim as urbane and courteous with a gentle manner, firm integrity, independence andsound judgment. We don't know how much he participated in Marshall's Robustconference discussions but he did write several significant decisions involving non-constitutional issues. For example, the author of a biographical sketch, a full Duvalbiography has yet to be attempted, suggested that Duval's main contribution to the lawmaybe that he "Is the architect of the Federal rule that the ordinary practice of permittingfirst the debtor and alternatively the creditor to choose to which among competingobligations of payment should be applied did not pertain when different charities underdistinct obligations were interested. At the court of course, that is known as the Duvalrule. Now Justice Justice Duval contributed only two words to the court's publishconstitutional jurisprudence specifically I dissent in the Dartmouth College case.Now, I have to say I find this sort of brevity admirable. Duval chose trenchant words socarefully that even the great Chief Justice John Marshall chose to say nothing in reply.Now, finally I would add that if judges adhere to the medical profession adage, first do noharm, then Justice Duval's reticence served the nation well, better than some ofthe pronouncements of other 19th century justices. Don't forget that the next Justice fromMaryland, Roger Taney said too much rather than too little.Now, President Madison's other appointment, Joseph Storey found fame through morefamiliar means. Extraordinary talent in industry. Although only 32 years old, theyoungest appointee in Supreme Court history, he was at the time already known as one ofMassachusetts's most able lawyers. He recently been elected speaker of theMassachusetts House of Representatives and had previously served in congress as arepublican representative for Massachusetts. They had those back then.Jefferson Jefferson had urge Madison not to appoint Storey because Storey had vocallyopposed Jefferson's embargo. Jefferson wrote Madison that Storey was unquestionably aTory and too young. It seems likely that Jefferson also took no comfort in the fact thatStorey, together with John Quincy Adams had successfully represented the Northern landpurchasers in Fletcher versus Peck. Jefferson's views however had lost their hold onMadison and they failed to dissuade him from selecting Storey. Rather, after three failednominations, Madison now appeared to be guided by his own lights. He most likely sawin Storey a person of merit and compatible outlook who would be confirmed. Storey'sbiographer suggest that Madison perceived that Storey was admirably qualified and saw acongeniality between his own and Storey's nationalism. Madison, a serious scholar whohimself rose to prominence at an early age could easily see much to admire in Storey.Storey had a compulsive appetite for learning, relentlessly studying 14 hours a day atHarvard allegedly dowsing his head in cold water at night to maintain his attention. Hewas well versed in the classics, poetry, and history as well as Blackstone and cook. Bythe time of his appointment, he'd already written a well-received treaties on civillitigation and had developed expertise in commercial and maritime law. Storey had aprodigious memory and was a veritable walking library. Something the court neededsince at the time of Storey's appointment, congress did not allow the court to use thelibrary of congress. That I think was carrying the separation of powers too far. Now,Madison may have thought that Storey as a republican would provide an intellectualcounter weight to marshall the Federalist. But if Madison had expected that Storeywould decide cases on the basis of party politics then he was surely misguided. Storeycame to the court with a steadfast belief that the court was above and apart from thepolitical fray. Storey repeatedly stated that law and politics were distinct and that he feltfar more comfortable in the world of law. From early in his career, he has spoken of Lawas a science in the sense that legal decision proceed from the consistent and rationalapplication of principles set down in the constitution, statutes, and prior precedent. In thatsense, Storey's views were aligned with the ideals that Madison had identified infederalist 39 and that Hamilton has eloquently expressed in Federalist 78. Far from beingpolitical adversary, Marshall and Storey understood that they were judicial colleaguesand that they were engaged in a joint enterprise that's transcended party politics andregionalism. They share a common nationalist vision. In addition, their talentscomplimented each other. Marshall reasons somewhat instinctively while Storey reliedon careful analysis of legal authorities. As Storey put it, when I examined a question, Igo from headland to headland. Marshall has a compass, puts out to see and goes directlyto the result. Now, despite their different approaches in navigation, Marshall and Storeyduring their nearly quarter of century of service together, most often arrived at the sameplace. Storey added another ingredient to the court's mixed that deserves mention. Hewrote poetry while on the bench including verses inspired by the lawyers who arguedbefore the court. Now, I think we have a very talented Supreme Court bar today. But Icannot say that they have inspired me to write poetry. Storey however offered this line ofwhat he expected of advocates before the court. Begin with dignity, expound with grace.Each ground of reasoning in its time and place. Let order reign throughout each topictouch nor urge it's power too little or too much. Now of course not all advocates lived upto that standard. Storey offered this lines describing what he too often encountered withjust enough learning to confuse. With just enough of temper to abuse, with just enough ofgenius when confessed, to urge the worst of passion's for the best. Now, I have to tellthat Storey's poetry from the bench has not received literary acclaimed. But it does havea certain timeless quality among the justices and I'm quite certain that the lawyers whoappeared before Storey told him it was brilliant. But poetry aside, there can be littledispute at Madison's appointment of Joseph Storey strengthens the Marshall courtimmeasurably. The process that lead to Storey's appointment perhaps reflects the truthabout Madison. History records that Madison was often indecisive at the outset of acrisis, a quality that did not serve him well as President. But Madison always worksteadily towards a solution. As one of Madison's close colleagues put it, Mr. Madison isslow in taking his ground but firm when the storm arises. Madison's initial reliance onJefferson's advise deterred but did not prevent Madison from eventually selecting Storeyas the best to the available candidates. Madison ultimately showed his good judgment inrejecting Jefferson's litmus test respecting a potential nominees attitude towards aprominent political issue of the day, the trade embargo and Madison wisely did noteliminate from consideration a lawyer who in representing clients had advocatedpositions with which Madison disagreed in the Fletcher case. At the end of the day,Madison surely took account of the nominees general judicial philosophy but he alsofocused on the nominees talent and record of accomplishments. The Marshall court thatMadison help to shape played a critical role in directing the future of the Union. Itdecided landmark cases such as McCullough against Maryland, Martin versus HuntersLessee and over Justice Duval dissent, Dartmouth College.Now those decisions were probably not all to President Madison's liking. Madisonhowever was the architect of limited government and separated powers. He knew betterthan anyone that the principle of separated powers requires an independent judiciary. Hisappointment of Joseph Storey help ensure that we would have one.