The other day I came across a column in the Oklahoma City Journal-Record by Tom Wolfe – not The Right Stuff’s author, but a civil litigator practicing in that metropolis. Mr. Wolfe’s column, occasioned by the recent swearing-in of Justice Elena Kagan, concerned a list of lesser-known but interesting facts about the Supreme Court of the United States.
For example, at the Court’s opening session in 1790, Justice William Cushing of Massachusetts showed up to take the bench wearing a powdered wig, of the kind that’s usual in British courtrooms to this day. This headgear he had always worn in Massachusetts when deciding cases. He was the only Justice to do so in Washington, however, and he quickly discarded the wig, but not before then-Secretary of State Thomas Jefferson irritably remarked: “”For heaven’s sake, discard the monstrous wig which makes English judges look like rats peeking through bunches of oakum.”
So far, so historically accurate. But then Mr. Wolfe muddies the waters a bit with this statement:
The president of the United States has the right to argue a case in front of the Supreme Court. The last to do so was Richard Nixon (Time Inc. v. Hill). He lost. Is there a correlation between Nixon’s eventual impeachment proceedings and his being the last president to exercise this power?
Well, there are several problems with this statement. It suggests, for one thing, that RN was serving as President when he argued this case. Not so. Time, Inc. v. Hill, 385 US 374, began with James Hill’s family being held hostage in their home, in the early 1950s, by several escaped convicts in the 1950s. In 1954 a writer named Joseph Hayes published a novel describing a somewhat similar situation (with some important differences, like the family being physically abused, which did not happen in the case of the Hills). This novel, The Desperate Hours, was adapted into a play that opened in New York early in 1955, and later in the year it became a Hollywood film starring Humphrey Bogart and Frederic March. (The movie was remade in 1990 with Anthony Hopkins, a few years before he played Nixon, and Mickey Rourke.)
Before the dramatized version of The Desperate Hours played in Manhattan, it opened in Philadelphia. Life magazine published an article about this production. Hayes and the play’s producers had been at pains to specify that the work was not based on the Hill family’s ordeal in any fashion, and that its characters had no real-life counterparts. But the Life article said the play was based on the Hills’s story. James Hill thereupon sued Time-Life, Inc, and over the course of a decade the case slowly wound its way in and out of the courtrooms. Finally, it reached the Supreme Court, in April 1966.
By then, the Hill family was using the services of Nixon, Mudge, Rose, Guthrie, & Alexander, a high-powered New York firm in which the former Vice-President had been a partner since shortly after his defeat in the California governor’s race in 1962. Richard Nixon decided to argue the case himself, and carefully prepared his brief with the assistance of the firm’s Leonard Garment. On April 27, he went before the high court and presented the case for the Hills. His argument was highly rated by those members of the legal community observing the proceedings. But, after a reargument in October, the Court decided 5-4 in Time Inc’s favor in January of the following year.
This was well before RN set aside the practice of law to seek the Presidency. So what Mr. Wolfe is saying is not very clear. The Constitution, as far as I recollect, gives the President of the United States no special power to argue a case before the Court, whether or not he or she is an attorney or, for that matter, a member of the Court’s bar. It is quite true that, following the traditions of Anglo-American law, any defendant in a case before the Court can elect to represent himself or herself, pro se. But that privilege is usually invoked (when it is, and that rarely) by criminal defendants without the means to hire counsel or disinclined to do so. So what Mr. Wolfe is talking about is still a mystery to me.
However, his bringing up RN’s appearance before the Court reminded me that I had long been aware that Lincoln, too, once argued and lost a case there when in private practice. But had there been others? So I did some checking.
It turns out that no less than eight Chief Executives, before and after their time in office, appeared as advocates before the Supreme Court. These are, in order:
John Quincy Adams. In 1841, the sixth President, by then a member of Congress, went before the Court to plead the case for freeing the Africans kidnapped into slavery who had taken over the vessel Amistad and killed its crew – and Adams, by skill of reasoning and force of eloquence, won their freedom. (This memorable scene was enacted, with Anthony Hopkins playing Adams, in Steven Spielberg’s film Amistad.)
James Knox Polk. The eleventh President once argued a case before the Court, before he reached the Presidency, though at this point I have no further information about it.
Abraham Lincoln. After declining to seek re-election upon the conclusion of his single term in the House, the future sixteenth President prepared to leave Washington to return to private practice in Springfield, Illinois. But before departing the city, he agreed to argue in Lewis for use of Longworth v. Lewis, a case concerning an arcane point of the Illinois statute of limitations. He spent two days before the Court, on March 7 and 8, 1849. Five days later, the Court decided against Lincoln’s client. He left for Illinois a week later.
James Abram Garfield. In 1866 the high court heard the still much-studied case of Ex parte Milligan, which involved several Confederate sympathizers who had been arrested and tried by military tribunals in the Midwest during the Civil War. Fifteen years before his inauguration as twentieth President and subsequent assassination, Garfield argued the case for Milligan and his fellow defendants. The Court decided their favor, concluding that while the Federal government had the authority to suspend habeas corpus in wartime, civilians could not be tried by military panels in states in which civil courts still functioned.
Grover Cleveland. Between his first and second terms, from 1889 to 1893, the twenty-second (and twenty-fourth) President appeared before the Court on several occasions, undeterred by the fact that he had appointed two of them (including the Chief Justice, Melville Fuller).
Benjamin Harrison. After his Presidency, the twenty-third Chief Executive also appeared before the Court, despite the fact that three of his appointees were on it.
William Howard Taft. As Benjamin Harrison’s Solicitor General from 1890 until 1893, the future twenty-seventh President, as part of his customary duties, argued many cases before the high court. But after leaving the Presidency in 1913, and before his appointment as Chief Justice in 1921, Taft (who appointed six Justices when in office) resisted appeals to take on cases as an attorney, and confined himself to teaching constitutional law at Yale.
And finally, as noted, Richard Nixon – the only President to argue a case before the Supreme Court during the twentieth century. He’s in some pretty select company.