an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
A Justice who will Sustain Emancipation and Legal Tender
When Abraham Lincoln explained why he had nominated Salmon P. Chase, one of his political rivals, for Chief Justice in 1864, he explained that "we want a man who will sustain the Legal Tender Act and the Proclamation of Emancipation. We cannot ask a candidate what he would do; and if we did and he should answer, we should only despise him for it."
First, President Obama will pick someone who he thinks is likely not to cost him more political capital than necessary. Since the Democrats have a lot on their plates and this is an election year, this means a candidate who will be relatively easy to confirm.
Second, and equally important, President Obama will nominate someone who is likely to sustain the President's policies while he is in office, first, on the issues he cares about most at the time and, secondarily, the issues necessary to keep his political coalition together. In Lincoln's day this was the Emancipation Proclamation and the use of paper money as legal tender, each of which was subject to serious constitutional objections. Indeed, the Supreme Court struck down paper money in the first of the legal tender cases, Hepburn v. Griswold, only to uphold it a year later in the second legal tender case, Knox v. Lee. The constitutionality of the Emancipation Proclamation-- which freed blacks in rebel territory-- was only definitively settled with the Thirteenth Amendment in 1865 (banning slavery) and section 4 of the Fourteenth Amendment in 1868 (banning claims for emancipation).
Ironically, although Lincoln appointed Chase because he believed Chase would vote to uphold the legal tender act (Chase had been Treasury Secretary during the Lincoln Administration), after the war Chase ultimately voted to strike down the law in 1870. It is possible that Chase did so in part because he still thought he could become President in 1872, this time as a hard-money Democrat. It was not to be, however. Ulysses S. Grant nominated two Republicans, William Strong and Joseph Bradley, who voted to reverse Hepburn in Knox v. Lee. With enough appointments, the Republicans finally secured the legality of paper money. Presidents cannot be certain how their appointees will vote years after the fact. However, if they keep getting appointments, they can stock the courts with Justices who mostly view things their way, especially during their Presidency. Franklin Roosevelt wanted Justices who would uphold his New Deal programs. His appointees-- all nine of them-- did. Later they disagreed among themselves about civil rights issues. But that was not why Roosevelt appointed them.
What is the modern equivalent of emancipation and legal tender for President Obama? It would probably be, in no particular order, support for the constitutionality of the recently passed health care bill, preservation of Roe v. Wade (as modified by Casey), and support for robust (but not necessarily unilateral) Presidential power in surveillance, detention, military commission, rendition, and other war on terror issues. With a few notable exceptions, President Obama has adopted most of President Bush's war on terror policies, especially the versions during Bush's second term. At the same time, Congress has ratified many of these policies through legislation, including the FISA Amendments Act of 2008 and the Military Commissions Acts of 2006 and 2009. Obama wants all of these war on terror policies upheld. He doesn't want any trouble from his nominees on these issues. That is to say, he hopes for someone who will not be like Salmon Chase, who double-crossed him on legal tender. And because Supreme Court Justices today rarely have presidential ambitions, Obama is much more likely to get what he wants.
Who would be most likely to satisfy these criteria? One possibility would be someone who had served in the executive branch (and thus is predisposed to Presidential assertions of power) but is a also social liberal who believes in robust federal regulatory power. You do the math.