United States Supreme Court
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Marshall never would have served on the Supreme Court under Schumer’s rules

Noemie Emery of the Washington Examiner reminds us about an importance piece of U.S. Supreme Court history.

Senate Democratic Leader Charles Schumer, D-N.Y., seems to have been in a strange frame of mind since Donald Trump nominated Justice Amy Coney Barrett to the Supreme Court late in September. He should be happy he wasn’t around in 1801, when John Adams, having already lost re-election after one term in office, named his ally John Marshall as Chief Justice. Not only that, but he did it so that a lame-duck Senate would confirm him. Adams then left town without notice under cover of darkness in what can be only described as a huff, so as to avoid his rival’s inauguration.

By Schumer’s standard, Adams acted illegally, and with great consequence. For the thirty-four years that he lived while in office, Marshall upheld in the era of Jefferson the ideas and ideals of John Jay, Alexander Hamilton, Gouverneur Morris and even George Washington about the power and sway of the national government, its primacy over all the state governments, and the executive ‘energy’ so admired by Hamilton. Those ideas remained intact for use in the Civil War era, when they were so badly needed and the margin for error was small. …

… Presidents facing such emergencies, and handling them under Marshall’s distant guidance, would come to include Abraham Lincoln in the Civil War and Franklin D. Roosevelt in the Great Depression.

We have had many reasons over the years to be grateful for what Schumer would probably call John Adams’s “illegitimate” seizure of power, which was considerably less “legitimate” than what Trump and McConnell are doing right now. In 1801, John Adams was the lamest of ducks, having been defeated already before he made the nomination. Adams actually defied an election result; in Trump’s case, the election hasn’t happened.

Mitch Kokai / Senior Political Analyst

Mitch Kokai is senior political analyst for the John Locke Foundation. He joined JLF in December 2005 as director of communications. That followed more than four years as chie...

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