Judicial Leaking Nineteenth Century Style

Mark A. Graber is Regent Professor at the University of Maryland.

James Buchanan’s inaugural address urged fellow Americans to allow the Supreme Court to resolve controversies over the status of slavery in American territories.  Anticipating the claim made one hundred and thirty years later in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) that “the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division,” Buchanan declared that whether Congress could ban human bondage in the west was “a judicial question, which legitimately belongs to the Supreme Court of the United States.”  He continued, “[t]o their decision, in common with all good citizens, I shall cheerfully submit.”   In 1857 as in 1973 and in 1992, more centrist politicians were eager to have constitutional controversies settled by the Supreme Court rather than have political hot potatoes debated extensively in the elected branches of government.  Buchanan’s first inaugural address was also rooted in a second commonality with the contemporary abortion debate.  Just as Justice Samuel Alito’s majority opinion in Dobbs v. Jackson Women’s Health Organization was leaked to Politico, so Justice James Catron leaked the Dred Scott v. Sandford (1857) opinion to Buchanan.  When Buchanan asserted that the constitutional status of slavery in American territories should be settled by courts, he knew the justices in a few days would announce a decision holding that Congress had no power to ban human bondage in the western regions. 

Catron leaked the impending Dred Scott decision because he was concerned that the judicial line-up might appear overly sectional.  When Buchanan was preparing his inaugural address, only the five justices from the slave states were sure votes to declare that slaveholders had a due process or other kind of constitutional right to bring their human chattel into American territories.  Justice Samuel Nelson of New York was planning to concur on choice of law grounds.  Justices Benjamin Curtis of Massachusetts and John McLean of Ohio were busy writing dissents.  This left Justice Robert Grier of Pennsylvania, a Democrat with close ties to Buchanan.  Catron reached out to Buchanan to see if Grier could be induced to join the majority so as to give the result in Dred Scott at least the veneer of bisectionality.  After informing Buchanan that many justices favored declaring that Congress had no power to ban slavery in the territories, the Associate Justice of the Supreme Court asked the President of the United States, “[w]ill you drop Grier a line, saying how necessary it is–& how good the opportunity is, to settle the agitation by an affirmative decision of the Supreme Court, the one way or the other.”

Buchanan was agreeable.  He immediately wrote his fellow Pennsylvanian urging Grier to sign up for the majority’s result, even if he could not fully endorse the majority’s logic.  Grier responded favorably.  Grier gave Buchanan’s letter to Chief Justice Roger Taney and Justice James Wayne, and then informed Buchanan that the president had his vote. Grier wrote Buchanan, “On conversation with the chief justice I have agreed to concur with him.”  This created more than a mere majority for striking down the Missouri Compromise.  Grier noted, “[t]here will be six if not seven (perhaps Nelson will remain neutral) who will decide the compromise law of 1820 to be of non-effect.”  The Justice from Pennsylvania, after further prodding from Catron and Buchanan, kept his word.  Grier’s three sentence concurring opinion in Dred Scott declared, “I . . . concur with the opinion of the court as delivered by the Chief Justice, that the act of Congress of 6th March, 1820,” the ban in Missouri Compromise on human bondage in territories north of the 36° 30′ line, “is unconstitutional and void.”

Catron’s behavior was less shocking in the nineteenth century than the leak of the Alito opinion has been in the twenty-first century.  Many Supreme Court justices were intimately involved in electoral politics.  Justice McLean spent his time on the bench attempting to run for the presidency.  Catron was a close political advisor to Presidents James K. Polk and Buchanan.  The standard for judicial ethics was lower.  John Marshall participated in Marbury v. Madison (1803), even though as Secretary of State under John Adams (at the same time he was Chief Justice), Marshall failed to deliver the judicial commission to William Marbury that initiated the Marbury litigation.  Marshall did recuse himself from Hunter v. Martin’s Lessee (1816) because he had financial interests in the property that was the subject of litigation.  Ted White, however, observes that the petitioner’s brief in that case appears to have been in Marshall’s handwriting and that all the judges on the Court at the time would have recognized the author.

Leaking was sufficiently common that Buchanan does not appear to have thought his request to Catron highly unusual or dubious.  The justices regularly corresponded with other political actors, informing them of where the court stood on the issues of the day.  The New York Times, tipped apparently by McLean, published the outcome in several major cases a week or so before the announcement was made public.  Catron began his correspondence with Buchanan by noting that the year before judicial opinions had been leaked to the New York Tribune.  Although Catron did not name the culprit, Curtis was the most probable leaker.  Buchanan, Catron, and Grier did indicate some sensitivity to leaking, but they clearly agreed that leaking was a legitimate means of putting pressure on a wavering judge to take a firm stand on a hotly contested issue.

The Prize Cases highlights how justices were no more discrete during the Civil War.  As both Brian McGinty and David Silver detail in terrific books on constitutional politics during the Lincoln Administration, Supreme Court justices during the arguments over the constitutionality of the blockade privately cheered on, complemented, and advised the lawyers for their preferred side. Catron assured James Carlisle, who represented blockade runners, that he had at least three votes for striking down the blockade. Justice Noah Swayne after the first day of oral argument informed Attorney General Edward Bates that the government’s presentation was a failure and he revealed information about the private deliberations of the Court. The government’s presentation improved to the point where Grier, a crucial swing vote, informed the lawyers defending the constitutionality of the blockade that they had “settled that question; there is nothing more to say about it.”  No one appeared to think this unusual.  Most of the justices had been corresponding with friends and their private expressions were publicly known.

Grier was no more discrete after the Civil War than during that conflagration.  At a church service, he informed Senator Orville Browning of Illinois that the Supreme Court would declare unconstitutional the Lincoln Administration’s effort to use military commissions to try civilians.  Other justices appear also to have leaked.  By the time the Supreme Court issued an opinion in Ex parte Milligan (1866) declaring those tribunals unconstitutional, the result was well known, if not the reasoning.  Lest crucial figures not understand the implications that Milligan had for martial law in the South, the justices in their “private” correspondence informed political friends about their thoughts and the thoughts of their brethren on that subject.  Congress passed the Repealer Act of 1868 confident that a Supreme Court majority in Ex parte McCardle (1868) was prepared to strike down martial law in the former confederacy.

Justices such as Catron and Grier were quite casual about their leaks.  No member of the court that decided The Prize Cases thought informing counsel of their voting plans or advising counsel on their argument was injudicious.  Rather, this appears to be commonplace in the first two-thirds of the nineteenth century.  Courts were staffed with persons who were politically active, the judges remained politically active while on the court, and part of that political activity was informing political friends of what was happening inside the Court.  Their behavior on the bench might be shocking by contemporary standards, although contemporary Supreme Court leaks are more common than publicly acknowledged, but Grier, Catron and others acted within the judicial norm during the mid-nineteenth century.  Some discretion was advisable, but only some.

The Republic did not fall, teeter, or even flinch when justices leaked information.  The impact of leaking was considerably to the right of the decimal point.  Leak or no leak, Democrats were thrilled that the Supreme Court was willing to take the lead resolving whether Congress could ban slavery in the territories.  Abraham Lincoln did not need evidence of the correspondence between Buchanan, Catron and Grier to claim a conspiracy to nationalize slavery between Democratic elected officials and Democrats on the Supreme Court during his debates with Stephen Douglas.  The judicial leaks in the Prize Cases confirmed what many of the justices had been saying about the blockade in their capacity as federal circuit judges and in their private correspondence (which was often public).  The leaks in Milligan gave some members of Congress a little more time to think about how to operate Reconstruction with a Supreme Court not fond of martial rule.

This history suggests that the leak of the majority opinion in Dobbs is far more analogous to a leak of the NCAA basketball tournament brackets than a leak of sensitive national security information.  There was a serious breach of confidence. A big media show was ruined, whether that show be “Selection Sunday” or “Last Opinion Day in June.”  Nevertheless, no vital secrets were revealed.  Alito’s opinion looks like every other opinion he has ever written on major subjects.  There are no surprises.  The justices can continue to discuss the merits and demerits of that opinion unabated.  At most, the general public learned in the beginning of May what they would have otherwise learned at the end of June.  Just as the real issue in Dred Scott is that Grier voted to grant slaveholders a right to bring their human property into the territories, so the issue in Dobbs is whether the justices will uphold or violate fundamental constitutional and human rights by declaring that states are constitutionally empowered to prohibit abortion.

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