Justices Seeking the Presidency

Justices Seeking the Presidency ALLEN SHARP The separation of powers in the Constitution of the United States has never been abso­ lute in either theory or practice. This is especially true in the quest for public office. At least one President, William Howard Taft, aspired to be a Supreme Court Justice. Several Supreme Court Justices seriously considered becoming President. These are a few stories about those ambitions. Flirting with the Federalists, 1812 In 1812, a strong antiwar sentiment existed in the United States, especially in New England. Federalists called it an offensive war, sure to ruin America. Joseph Story expressed con­ cern that “leading Federalists meditate a sev­ erance of the Union.”1 Southern Federalist James McHenry of Maryland argued that only a change of administration could save the country. Another Marylander, former Secre­ tary ofthe Navy Benjamin Stoddert, suggested that Chief Justice John Marshall, a promi­ nent Federalist, should run for President. He wrote, “Marshall is a man in whom the Feder­ alists may confide—perhaps he is the man for crisis.”2 Stoddert was not the only Federalist to support Marshall’s candidacy; many powerful members of Congress hoped he would run for President. Within days after Stoddert’s public procla­ mation, Marshall wrote privately to Robert Smith of Maryland, who had just been dis­ missed as Secretary of State by President James Madison. Smith had engaged in a pub­ lic antiwar effort and had expressed admira­ tion for Marshall’s presidential qualifications. When Smith sent Marshall a copy ofan attack he made on his former allies in the Madison administration, Marshall replied: Although I have for several years forborn to intermingle with those ques­ tions which agitate and excite the feelings of party, it is impossible that I could be inattentive to pass­ ing events, or an unconcerned ob­ server of them. [But a]s they have increased in their importance, the in­ terest, which as an American I must take in them, has also increased; and the declaration of war has appeared to me, as it has to you, to be one of those portentous acts which ought to concentrate on itselfthe efforts of all those who can take an active part in JUSTICES SEEKING THE PRESIDENCY 287 Had Chief Justice Marshall chosen to be the Federalist party’s standard-bearer in the 1812 election, he might have fared better than De Witt Clinton (right), the Peace party candidate backed by the Federalists. James Madison (left) beat Clinton 128 to 89, but Marshall’s biographer believes that if the Chief Justice had entered the race, he might have prevailed over Madison. rescuing their country from the ruin it threatens. All minor considerations should be waived; the lines of subdivision be­ tween parties, if not absolutely ef­ faced, should at least be covered for a time; and the great division between the friends of peace & the advocates of war ought alone to remain. It is an object ofsuch magnitude as to give to almost every other, comparative in­ significance; and all who wish peace ought to unite in the means which may facilitate its attainment, what­ ever may have been their differences of opinion on other points.3 This letter from Marshall to Smith, sent on July 27, 1812, is described by one of the ChiefJustice’s biographers, Albert Beveridge, as one of “the longest and most unreserved he ever wrote.” Beveridge concludes that “the Chief Justice of the United States was at that very moment not only in close sympathy with the peace party, but was actually encourag­ ing that party in its efforts to end the war.”4 A later biographer, Leonard Baker, goes fur­ ther, stating that the letter was a “declara­ tion of his readiness to become a presidential candidate.”5 Most recently, however, Canadian historian Jean Edward Smith has brushed aside any interest that Marshall may have had in the 1812 Federalist presidential nomination.6 Marshall’s conduct and writings seem to in­ dicate a very temporary and transitory temp­ tation, which he soon put aside. If indeed a presidential bug had bitten Marshall, it did not cause any serious infection. Marshall’s competition would have been the politically cunning DeWitt Clinton, a...

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