GERBER: John Adams’ Supreme Court

How a Founder’s idea protects us still

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The most powerful court in the world is now in session. The first Monday in October marks the beginning of a new term for the Supreme Court of the United States.

Thiswouldn’t have been possible without John Adams. Although the Supreme Court’s power typically is traced to the 1803 opinion of John Marshall in Marbury v. Madison that the court has the authority to void acts of the legislature and the executive that are inconsistent with the Constitution, there would have been no “great chief justice,” as Marshall is called, without Adams.

Of course, it was President John Adams who nominated Secretary of State John Marshall to the Supreme Court in 1801. But Adams‘ most significant contribution to the court’s power was not his ability to recognize a talented jurist when he saw one. Rather, it was his articulation, as the American founding’s most sophisticated thinker, of the political theory of an independent judiciary in a 1776 pamphlet, “Thoughts on Government,” published during the initial rush of state constitution-making.

The pamphlet - a clarion call for separation of powers written in response to Thomas Paine’s recommendation in “Common Sense” that all government power be vested in a unicameral legislature - was influential in a number of state constitutional conventions beyond Adams‘ home state of Massachusetts, including those in New Jersey, New York, North Carolina and Virginia. Adams argued in “Thoughts on Government” for a bicameral legislature: a representative assembly, “an exact portrait in miniature of the people at large,” and a smaller “council” chosen by the assembly and designed to “check and correct [the assembly’s] errors.” The executive should be chosen by the two houses of the legislature on an annual basis, and he should be endowed with the power to veto legislation. Most important of all, Adams explained the significance of an independent judiciary to any form of government dedicated to the preservation of liberty. He wrote:

“The dignity and stability of government in all its branches, the morals of the people, and every blessing of society depend so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checks upon that.”

Adams recommended that judges be “nominated and appointed by the governor, with the advice and consent of council.” However, he argued for more than merely making the judiciary a separate branch of government. He called for stable judicial compensation and tenure so long as judges behave well: “[T]hey should hold estates for life in their offices; or, in other words, their commissions should be during good behavior, and their salaries ascertained and established by law.” Adams also insisted that judges who misuse their offices should be impeached by the “house of representatives … before the governor and council” and, “if convicted, should be removed.”

Adams was serving as a diplomat in England during the framing of the federal Constitution of 1787. Although that Constitution excluded the executive from the impeachment process, it otherwise contained principles identical to Adams‘ proposal: The Supreme Court is a separate branch of government, the justices enjoy life tenure during good behavior, and their salaries cannot be diminished while they are in office. Without this political architecture created by Adams that guarantees judicial independence for Supreme Court justices, the United States never would have seen a John Marshall in 1803 or a John G. Roberts Jr. in 2010. After all, without judicial independence, no court could safely void an act of another branch. Bluntly stated, the risk to a judge who exercises judicial review when he or she is not independent of the executive and the legislature is either removal from the bench or a reduction in salary.

John Adams knew this, and so did the Framers who met in Philadelphia during the summer of 1787 when they wrote Adams‘ theory of judicial independence into Article III of the Constitution of the United States. Thanks to John Adams, the American people, under the watchful eye of the Supreme Court, are the freest people in the history of the world.

Scott D. Gerber is a law professor at Ohio Northern University. His book, “A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787,” will be published by Oxford University Press in March 2011.

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