Good evening. I'm Eugene Meyer, President of the Federal Society and I Thank you. I wanna welcome you all to the Seventh Annual Barbara Olson Memorial Lecture. Earlier this month, I visit the Pentagon 9/11 Memorial. It's a painful refresher in what we have lost and on a personal basis, seeing the name Barbara K. Olson on the plaque was especially poignant. The memorial this memorial lecture series started as many of you know with Ted Olson's inaugural lecture which reminded us of what it means to be an American and how our legal tradition is a critical part of our identity as Americans. Lawyers are at their best when they recognized this connection between law and our American identity. Both Ted and Barbara understood this connection. We want the lecture series to remind lawyers of it so that they foster legal principles that advanced individual freedom, personal responsibility, and rule or law. We're also delighted today to 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 the distinguished lecturers we have had and even more pleased to have the honor of hosting the Chief Justice today. This conference that we're having this weekend and this lecture series both focus partially on what is special about America. One of the things that is unique is the system of carefully separated powers. In his hearings, Chief Justice Roberts discuss the roles of judiciary under that system as being one of an umpire. It is not that he lacks the ability or the willingness to take strong positions. As one who has argued 39 cases 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 was famously asked if one case he had lost nine to nothing and why that had been result and responded there have been only nine justices. As a Harvard Law School graduate and clerk for Justice Renquist on the Supreme Court in addition to his extensive experience in the Solicitors General office and at Hogan & Hartson, he has sterling credentials and much experience in taking such strong positions. Indeed, he was widely thought to be the leading Supreme Court advocate of his generation when he was elevated to the first court of appeals and then the Supreme Court. But he has now taken on a different role. As any serious sports fan will attest, the role of an umpire is a critical one but thankless. A judge will decide cases from time to time where not only many of us in this room won't like the result but often that good judge won't like it either. But if the decision is correct, the problem is with congress or perhaps occasionally we don't like something in the constitution. Those are political problems. His task is to make sure that the pitch just a little bit outside is not call the strike just the pitcher is likable or has a heart rendering story. 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 be asked. 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 you for that very warm welcome and thank you Eugene for that generous introduction. I am very pleased to be here among friends, old and new to deliver the Seventh Annual Barbara Olson Lecture. Barbara was a good friend and I consider it an honor to deliver the lecture named after her. Whenever I think of Barbara, my first reaction is to smile. I suspect that is true of many of those who knew her and what a testament that is to her life. Despite the horror and 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 the courage of our own. The Barbara Olson Lecture Series is dedicated to two distinctly American 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 foremost statement of principles that constrain government and preserve liberty. For that reason I've decided to speak a little bit this evening about James Madison. I figured the subject was a safe bet for this audience. Madison after all was the Father of Our Constitution, the Father of the Bill of Rights, the author of more than one third of the federalist papers and or course, the guy on the society's ties. No one wrote more persuasively than James Madison in Federalist 39 and Federalist 51 in defense of the separation of powers including the importance of an independent life tenure judiciary in the constitution scheme. Tonight, I would like to talk briefly about an aspect of Madison that typically receives little attention, his judicial appointments as the nation's fourth President to the Supreme Court. Madison's biographers have given his two judicial appointments to the court relatively brief treatment. For example, Ralph Ketcham's 600 plus page biography of Madison 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's perhaps good reason why Madison biographers have not focused on this aspect of Madison's presidency. Madison himself was preoccupied with other issues. When Chief Justice Marshall administered the presidential oath to Madison on March 4, 1809, the pressing issues were matters of war and peace. The United States had attempted to maintain its neutrality in the on-going conflict between Britain and France through an unpopular and unsuccessful trade embargo. President Madison was immediately consumed as chief executive with the same foreign affairs issues that had occupied him when he was Jefferson's secretary of state. You will recall that Madison's predecessor as secretary of state had been Marshall himself and that Marshall had left some unfinished state department business for Madison to take care of including the delivery of some commissions. Now one can easily imagine Chief Justice Marshall telling President Madison 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 that court six years earlier and since issuing its decision in Marbury versus Madison, the court was managing its own affairs quite well. Madison might even have heeded that advice. He did not share Jefferson's overt hostility towards the marshall court. As a matter of principle, Madison recognized the need for a strong and independent judiciary. As a republican, he of course had differences with Marshall's nationalist vision but the differences in historic perspective were principled and measured. As Professor Gordon would point it our in his recent book, Revolutionary Characters, part of Madison's nationalist vision was a greater appreciation than many of his fellow republicans of the role of the Supreme Court. Now on a personal level, Madison and Marshall were friendly. Madison did not share Jefferson's abiding suspicion of Marshall. That suspicion is best captured in the advice that Jefferson gave to one of Marshall's judicial colleagues. Jefferson said and I quote, "When conversing with Marshall, I never admit anything. So sure you admit any position to be good, no matter how remote from the conclusion he seeks to establish, you are gone. So great is his sophistry that you must never 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's confidence in Marshall. Together, Marshall and Madison had actively advocated ratification of the constitution at the Virginia Convention and Madison defer to Marshall for the presentation and defense of Article 3. For his part Marshall, had watched Madison successfully respond to Patrick Henry soaring oratory through fastidious preparation and careful logic. Marshall later stated "If I were called upon to say who of all 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 the Supreme Court some 18 months after his inauguration. Associate Justice William Cushing of Massachusetts who had turn down President Washington's nomination as Chief Justice in 1796 because of, as he put it, his infirm and declining state of health had long outlived his own prognosis. He nevertheless did pass away on September 13, 1810 and Madison faced the task of choosing a successor. By all accounts the matter started out poorly. Former President Jefferson and Chief Justice Marshall called, the great llama of the mountain, promptly weighed in on the matter from Monticello issuing highly partisan advice. Custom and the obligations of circuit riding at the time called for a nominee from New England. But Jefferson held deep suspicions about New England lawyers and his views were further tainted by New England's opposition to his unsuccessful embargo. Jefferson urge Madison to replace Cushing from among the New England republicans who strongly supported Jefferson's trade restrictions. That list however was bound to be short. New England remained the Federalist strong hold and even many of New England's Republicans had opposed the embargo which was wildly wildly and widely unpopular in New England. Jefferson also appeared to harbor suspicions about another matter, the Supreme Court's decision five months earlier in Fletcher versus Peck. Fletcher like Marbury is of course a landmark decision. It confirmed the court's authority to strike down state statutes as unconstitutional. In a characteristically deft opinion Marshall concluded that a Georgia statue 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. A scandal that pitied Georgia against land claimants including both Northern Land companies who demanded the benefit of their bargain and third parties who had purchased land from those companies. Just to review the facts very briefly, in 1795, Georgia legislators sold 35 million acres of present day Alabama and Mississippi, very cheaply, to Northern Land Speculators at about 1 ½ cents per acre. Now many of those speculators promptly resold the land to third parties. Georgia's title to the land was debatable and the individual legislators profited handsomely from the sale. The rascals where thrown out of course in the next election and the subsequent legislature rescinded the sale. This precipitated the vigorous public debate and then as it would now, the inevitable law suits. In 1801, President Jefferson had appointed Madison, his secretary of the treasury Albert Gallatin and his attorney general Levi Lincoln to a commission to recommend a solution. They proposed a complex compromise that was basically a federal bailout. Georgia would cede the Yazu lands to the United States in exchange for a payment. The United States would partially compensate the purchasers and the United States would hold the land for the creation of future states. Congress however was unwilling to act on that proposal and the litigation went forward. Jefferson had no sympathy for the Northern Land companies and he viewed Marshall's decision overruling the Georgia's statue and reviving their claims as yet another example of judicial arrogance. Now many of the potential Supreme Court nominees from New England had connection to the land purchasers in the Fletcher litigation. In Jefferson's words, they were all infected with Yazuism. An affliction that nowadays turns up only at scrabble championship. Jefferson first encourage Madison to replace Cushing with his forme attorney general Levi Lincoln who'd serve with Madison on this Yazu commission. But the elderly Lincoln who was nearly blind from cataracts resisted. Marshall nominated Madison nominated him anyway. And the senate promptly confirmed him in January 1811 but Lincoln steadfastly refused to serve. Madison next turned to Alexander Wollcott, a Federal Revenue collector in Connecticut who had vigorously supported Jefferson's embargo. Wollcott, an outspoken party operative satisfied Jefferson's criteria but he was wildly unpopular as revenue collectors tend to be. The senate soundly rejected him on February 13th, 1811 by a vote of nine in favor and 24 against. Now, at this point Madison began to retreat from Jefferson's partisan advice. He turned to a person from outside the ranks of solid Jeffersonian republicans. A person who had in fact 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 had bucked 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 also have a special kinship with John Quincy Adams. There is a in the office that chief justices had traditionally use of the conference room at the Supreme Court. There is a sofa that is the sofa on which John Quincy Adams died. He was on the floor of the house when he had a stroke. He was taken to this sofa and of course, at that time, the court met at the basement of the capitol. The sofa made its way there and moved over with the court in 1935. In any event, Madison had already displayed confidence in Adams by appointing him the President's Minister to Russia. Madison promptly nominated Adams to the Supreme Court 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 in St. Petersburg. The Senate promptly and unanimously confirmed Adams. But Adams, a consummate politician, had different plans. When the news reached him, he responded from St. Petersburg that he did not want the job. Adams who had presidential ambitions humbly wrote to Madison "I have long entertained a deep and serous distrust of my qualifications for a seat on the bench." Now Chief Justice Marshall who had been appointed chief justice by Adams's father concurred in Adams's self-evaluation. He told the confidant with reference to Adams that nothing is 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 lost his first nominee to physical infirmity, his second to resounding rejection, and his third to political 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 for lack 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 19th century. Albeit for very different reasons, Gabriel Duval and Joseph Storey. It happens that he made the joint nomination 196 years ago yesterday. And the senate confirmed them 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 Marylander Chase. As I noted earlier, geographic consideration played a very large role in Supreme Court nomination at the time. Duval had served both Jefferson and Madison as the comptroller of the treasury where he had earned Madison's confidence for comp competence. He gained his fame far more recently however as the subject of a Chicago Law School Academic Commentary. Professor David Curry who sadly passed away last month, suggested in the 50th anniversary of the University of Chicago Law Review, that Justice Duval was the least significant justice in the history of the Supreme Court. At least up until then. But but Justice Duval was not without his defenders on the Chicago faculty. Professor Curry's colleague Frank Easterbrook immediately rose to Duval's defense. He wrote a strongly worded rebuttal identifying several other justices that were even less significant. As Professor Easterbrook put it, he was not about to let Curry's choice stand "without serious consideration of candidates so shrouded in obscurity that they escaped proper attention even in the contest of insignificance. Now now, I am not going to enter into this titanic debate and I hesitate to even talk about Justice Duval for the 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 title may still be open. But I can't resist just a few words. Historians agree that Justice Duval was a warm and congenial colleague on the Marshall Court. A fellow justice described him as urbane and courteous with a gentle manner, firm integrity, independence and sound judgment. We don't know how much he participated in Marshall's Robust conference discussions but he did write several significant decisions involving non- constitutional issues. For example, the author of a biographical sketch, a full Duval biography has yet to be attempted, suggested that Duval's main contribution to the law maybe that he "Is the architect of the Federal rule that the ordinary practice of permitting first the debtor and alternatively the creditor to choose to which among competing obligations of payment should be applied did not pertain when different charities under distinct obligations were interested. At the court of course, that is known as the Duval rule. Now Justice Justice Duval contributed only two words to the court's publish constitutional 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 so carefully 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 no harm, then Justice Duval's reticence served the nation well, better than some of the pronouncements of other 19th century justices. Don't forget that the next Justice from Maryland, Roger Taney said too much rather than too little. Now, President Madison's other appointment, Joseph Storey found fame through more familiar means. Extraordinary talent in industry. Although only 32 years old, the youngest appointee in Supreme Court history, he was at the time already known as one of Massachusetts's most able lawyers. He recently been elected speaker of the Massachusetts House of Representatives and had previously served in congress as a republican representative for Massachusetts. They had those back then. Jefferson Jefferson had urge Madison not to appoint Storey because Storey had vocally opposed Jefferson's embargo. Jefferson wrote Madison that Storey was unquestionably a Tory and too young. It seems likely that Jefferson also took no comfort in the fact that Storey, together with John Quincy Adams had successfully represented the Northern land purchasers in Fletcher versus Peck. Jefferson's views however had lost their hold on Madison and they failed to dissuade him from selecting Storey. Rather, after three failed nominations, Madison now appeared to be guided by his own lights. He most likely saw in Storey a person of merit and compatible outlook who would be confirmed. Storey's biographer suggest that Madison perceived that Storey was admirably qualified and saw a congeniality between his own and Storey's nationalism. Madison, a serious scholar who himself 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 at Harvard allegedly dowsing his head in cold water at night to maintain his attention. He was well versed in the classics, poetry, and history as well as Blackstone and cook. By the time of his appointment, he'd already written a well-received treaties on civil litigation and had developed expertise in commercial and maritime law. Storey had a prodigious memory and was a veritable walking library. Something the court needed since at the time of Storey's appointment, congress did not allow the court to use the library 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 intellectual counter weight to marshall the Federalist. But if Madison had expected that Storey would decide cases on the basis of party politics then he was surely misguided. Storey came to the court with a steadfast belief that the court was above and apart from the political fray. Storey repeatedly stated that law and politics were distinct and that he felt far more comfortable in the world of law. From early in his career, he has spoken of Law as a science in the sense that legal decision proceed from the consistent and rational application of principles set down in the constitution, statutes, and prior precedent. In that sense, Storey's views were aligned with the ideals that Madison had identified in federalist 39 and that Hamilton has eloquently expressed in Federalist 78. Far from being political adversary, Marshall and Storey understood that they were judicial colleagues and that they were engaged in a joint enterprise that's transcended party politics and regionalism. They share a common nationalist vision. In addition, their talents complimented each other. Marshall reasons somewhat instinctively while Storey relied on careful analysis of legal authorities. As Storey put it, when I examined a question, I go from headland to headland. Marshall has a compass, puts out to see and goes directly to the result. Now, despite their different approaches in navigation, Marshall and Storey during their nearly quarter of century of service together, most often arrived at the same place. Storey added another ingredient to the court's mixed that deserves mention. He wrote poetry while on the bench including verses inspired by the lawyers who argued before the court. Now, I think we have a very talented Supreme Court bar today. But I cannot say that they have inspired me to write poetry. Storey however offered this line of what 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 topic touch nor urge it's power too little or too much. Now of course not all advocates lived up to that standard. Storey offered this lines describing what he too often encountered with just enough learning to confuse. With just enough of temper to abuse, with just enough of genius when confessed, to urge the worst of passion's for the best. Now, I have to tell that Storey's poetry from the bench has not received literary acclaimed. But it does have a certain timeless quality among the justices and I'm quite certain that the lawyers who appeared before Storey told him it was brilliant. But poetry aside, there can be little dispute at Madison's appointment of Joseph Storey strengthens the Marshall court immeasurably. The process that lead to Storey's appointment perhaps reflects the truth about Madison. History records that Madison was often indecisive at the outset of a crisis, a quality that did not serve him well as President. But Madison always work steadily towards a solution. As one of Madison's close colleagues put it, Mr. Madison is slow in taking his ground but firm when the storm arises. Madison's initial reliance on Jefferson's advise deterred but did not prevent Madison from eventually selecting Storey as the best to the available candidates. Madison ultimately showed his good judgment in rejecting Jefferson's litmus test respecting a potential nominees attitude towards a prominent political issue of the day, the trade embargo and Madison wisely did not eliminate from consideration a lawyer who in representing clients had advocated positions 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 also focused on the nominees talent and record of accomplishments. The Marshall court that Madison help to shape played a critical role in directing the future of the Union. It decided landmark cases such as McCullough against Maryland, Martin versus Hunters Lessee and over Justice Duval dissent, Dartmouth College. Now those decisions were probably not all to President Madison's liking. Madison however was the architect of limited government and separated powers. He knew better than anyone that the principle of separated powers requires an independent judiciary. His appointment of Joseph Storey help ensure that we would have one.
