Remarks of the Chief Justice William H. Rehnquist
Historical Society of the District of Columbia Circuit
200th Anniversary of the Federal Courts of the District of Columbia
March 9, 2001

Thank you [Chief Judge Edwards]. I am pleased to be here today to celebrate the 200th anniversary of the federal courts of the District of Columbia.

The federal courts of the District of Columbia have heard their share of notable cases. The Pentagon Papers case presided over by Judge Gesell in 1971, and the Watergate cases heard by Judge Sirica a couple of years later, are ones that took place within living memory of a good part of this audience. For that reason, I will concentrate on some lesser known cases a little further back in the history of these courts.

The federal courts of the District of Columbia have a very rich history. When the Circuit Court of the District of Columbia was established in 1801, it consisted of a chief judge and two associate judges. The first judges to serve were Chief Judge William Kilty of Maryland and Associate Judges James Marshall and William Cranch. James Marshall was of course Chief Justice John Marshall's brother. William Cranch's first cousin was John Quincy Adams. Cranch served as a member of the Circuit Court for an almost unimaginable 54 years. During that time he also reported the decisions of the Supreme Court of the United States found in Volumes 5 to 13 of the U. S. Reports, as well as the decisions of the Circuit Court of the District of Columbia in Volumes 1 to 5, D. C. Reports.

Surely one of the most notorious cases heard by the federal courts in the District of Columbia was the 1859 murder trial of Congressman Daniel E. Sickles of New York. Sickles was tried before Judge Thomas H. Crawford for the murder of then-U.S. Attorney for the District of Columbia, Philip Barton Key. Key's father was Francis Scott Key and his uncle was Chief Justice Taney. Although Key was a widower with four young children, he was apparently something of a lothario, and became involved with Sickles' wife after meeting her at President Buchanan's inauguration.

Unbeknownst to Barton Key, Sickles discovered the romance. On the afternoon of Sunday, February 27, 1859, Sickles was looking out of his house onto Lafayette Park, when he saw Key walking by. Sickles followed Key to the corner of Pennsylvania Avenue and Madison Place, where he approached the unsuspecting Key, accused him of destroying his home and family, and began shooting. The first shot missed but two others hit the mark, killing Key.

Key's killing preoccupied the public, with one New York newspaper noting that the "tragedy is the absorbing topic of conversation, the never-tiring subject of eager and fierce discussion." Without the internet, cable news or even the radio, people followed the events in newspapers and magazines of the day. But, perhaps like today's coverage of sensational trials, Frank Leslie's Illustrated Newspaper explained that "the newspapers seize hold of the slightest rumor to form a paragraph, which is eagerly devoured by millions of readers."

Sickles was indicted on March 24 and his trial began on April 4. After selecting five jurors on the 4th, on April 5th the court went through a panel of 75 potential jurors, finding only two additional who were qualified to serve. Seventy were discharged because they had formed opinions of the case and could not give a fair verdict.

The government was represented by the new U.S. Attorney, Robert E. Ould. Sickles was represented by Edwin M. Stanton. The courtroom was packed with spectators, many of whom had to stand on tiptoe to catch a glimpse of the proceedings. After the first day of the trial, the Marshal rearranged the courtroom to make more space for members of the bar and the press. The trial lasted for twenty-one days. Despite the lengthy trial, the jury deliberated for barely over an hour before coming back with a verdict of not guilty. This was apparently no surprise -- an article in the March 12, 1859, edition of Harper's Weekly concluded that Sickles would have been justified in killing the man who seduced his wife, and predicted that no jury in the United States would convict him even of manslaughter. Sickles was reportedly carried out of the courtroom by his admirers.

Sickles went on to serve in the Army of the Potomac, fighting at Antietam and seeing action as a general officer at Gettysburg, where he lost a leg. He lived until 1914, one of the last surviving generals of the Civil War. Edwin M. Stanton became Abraham Lincoln's Secretary of War in early 1862. He was later appointed to the Supreme Court of the United States by President Ulysses S. Grant, but died before he could be sworn in.

Following Lincoln's assassination at Ford's Theater, in April 1865, Secretary Stanton determined that those charged with conspiring to murder him should be tried by a military commission, rather than in the ordinary civil courts. Eight of the charged conspirators were tried before a military commission headed by Major General David Hunter, who had been a prominent fighter for the Union during the Civil War. The Commission heard testimony during May and June of 1865, and in early July found several of the defendants guilty of conspiracy and sentenced them to hang. One of these defendants was Mary Surratt, who was the first woman in the United States so sentenced. She had kept a boarding house where the conspirators met, and was unflatteringly described by the New York Times as "fair, fat, and forty."

On July 5, President Andrew Johnson ordered Mary Surratt and others convicted of conspiracy for the assassination of Lincoln to be executed on July 7. In the early morning hours of July 7, Surratt's lawyers -- Frederick Aiken and John Clampitt -- went to the home of Justice Andrew Wylie (of what was then known as the Supreme Court of the District of Columbia) to apply for a writ of habeas corpus. They argued that in time of peace civilians could not be tried before a military commission -- an argument that would be sustained by the Supreme Court of the United States in the famous case of Ex Parte Milligan the following year. Justice Wylie's home was near present-day Thomas Circle. Aiken and Clampitt woke Justice Wylie, who came to the door in his pajamas. Justice Wylie read their request and then reportedly said he would give them his decision after he discussed it with Mrs. Wylie. When Justice Wylie returned, he issued the writ, making it returnable that morning at 10:00 a.m. The writ was signed at 3:00 a.m.

In the courtroom at 10:00, the Marshal informed Justice Wylie that at 8:30 that morning he had served the writ on General Hancock, who had custody of Mrs. Surratt. Justice Wylie noted that the writ had been properly served but General Hancock had failed to obey the court's order. Justice Wylie explained that his court, up against the power of the military, was essentially powerless to enforce its order.

If there be a disposition on the part of the military power to respect the authority of the civil courts, they will respect the writ which has already been served; if on the other hand it is their determination to treat the authority of this court with contempt, in this matter they have the power, and will treat with equal contempt any other process which the court might order. The court therefore must submit to the supreme physical power which now holds the custody of petitioner, and declines to issue an attachment or to make any other order in this case.

Just then, General Hancock and Attorney General James Speed arrived and announced that President Johnson had suspended the writ of habeas corpus "in such cases as this." Justice Wylie then explained that the writ of habeas corpus was "dear and sacred to every lover of liberty" and "indispensable to the protection of citizens," but noted that the Court's jurisdiction "yields to the suspension of the writ" by the President. Mary Surratt was executed that afternoon.

In 1913, another dramatic trial was held in the federal court -- the perjury trial of two Riggs Bank executives. The administration of President Wilson had conducted a very public investigation of the Riggs National Bank. Believing that the investigation was a political vendetta designed to put the bank out of business, the bank brought suit seeking to enjoin the government from continuing the investigation. The government hired Louis D. Brandeis as special counsel to defend against the suit.

Before the court could decide the bank's request for an injunction, the government brought perjury charges against C. C. Glover, the President of Riggs and W. J. Flather, the Vice President of Riggs, alleging that they had submitted a false affidavit in the course of the injunction proceeding. At trial, the defendants, represented by Frank Hogan, called as character witnesses William Howard Taft and Theodore Roosevelt. Former President Taft testified for half an hour, keeping the judge and the lawyers laughing nearly the entire time. Taft explained that he first met Mr. Glover when serving as Solicitor General, but noted that he did not see much of Mr. Glover socially then because the Solicitor General "does not have much money." He also testified to having lost $2,000 investing in Mount Pleasant, saying that "I always look for that money when I go out that way. I try to see it if I can."

A little over a week later, former President Roosevelt testified. When he first entered the courtroom, shouts of enthusiasm echoed through the courtroom and down the hall. Roosevelt also proved an entertaining witness, at one point testifying that he did not discuss politics much with Mr. Glover, but knew "that in 1912 he was for either Mr. Wilson or Mr. Taft. I knew he was against me." Even the jury broke into laughter at this remark. It was reported that after Roosevelt concluded his testimony he walked in front of the jury box, shook his finger at the jurors and told them that he expected them to do the right thing. The jurors apparently took Roosevelt's admonition to heart, deliberating for less than ten minutes before acquitting the defendants.

Another case that caused some fireworks several decades later was Land v. Dollar, a case that lasted for some seven years before it was finally settled. The Supreme Court's opinion in the case is often cited for the rather mundane proposition that if a judgment would "expend itself on the public treasury," it is a suit against the sovereign. But the interesting part of the Dollar case unfolded years after that decision.

The events giving rise to the case began when the Dollar Steamship Lines ran into financial trouble in the 1930s. Dollar borrowed a total of $7.5 million from the United States Maritime Commission, the last loan occurring in 1938. When the last loan was made, Dollar's stockholders turned over certificates representing 92 percent of Dollar's stock to the Commission and new certificates were issued in the name of the Commission. During World War II, Dollar's fortunes rose and the entire $7.5 million debt was repaid by 1945. The former Dollar stockholders then demanded the return of the stock shares, which they said had merely been pledged as collateral for the loans. The Commission refused, taking the position that the shares had been transferred outright to the Commission.

The Dollars brought suit in District Court seeking return of the shares. The District Court dismissed the suit as one against the United States that was barred by sovereign immunity. The Court of Appeals reversed, finding that a threshold question was whether the shares were ever property of the United States -- that is, was the transfer of shares in 1938 an outright transfer or a pledge of collateral for a loan. If the shares never belonged to the United States, then sovereign immunity would not come into play. It was this decision that was affirmed in the oft-cited 1947 Supreme Court decision.

After trial, the District Court found that the 1938 transaction was an outright transfer of shares and affirmed its earlier dismissal. On appeal, the Court of Appeals held that the transaction was a pledge and instructed the District Court to order the return of the shares. The Supreme Court denied certiorari. There were then some procedural skirmishes after the Maritime Commission was abolished and the Secretary of Commerce succeeded to possession of the disputed shares. On March 16, 1951, the District Court ordered Secretary of Commerce Charles Sawyer to endorse the shares and turn them over to the Dollars.

Secretary Sawyer turned the shares over to the Dollars on March 16, but refused to endorse them. Meanwhile, on March 12th, attorneys from the Department of Justice had filed a complaint on behalf of the United States in the Northern District of California asking that the United States be declared the lawful owner of the disputed stock and seeking to enjoin the Dollars from obtaining the disputed shares. The complaint stated that the United States considered the judgment of the Court of Appeals for the District of Columbia Circuit, holding that the 1938 transaction was a pledge, to be "a serious miscarriage of justice and for that reason has declined, by direction of the President, to acquiesce in it."

We can all well imagine the reaction of the Court of Appeals for the District of Columbia Circuit to the news that the United States had publicly declared its intention not to acquiesce in the court's judgment! On Friday April 6, 1951, the Court of Appeals heard argument on a motion by the Dollars for an order to show cause why Secretary Sawyer and others should not be held in contempt. It appears that Edward Hickey, a Department of Justice Attorney whose name appeared on the San Francisco case, told the court that the suit had been filed at the direction of President Truman. Judge Bennett Champ Clark was not impressed, telling Mr. Hickey, "If you have any idea that a letter from the President has any weight in this court you are mistaken. He has no more standing in this court than any other citizen. He has no right to influence litigation."

At the conclusion of the hearing, the court issued a rule to show cause why Secretary Sawyer, Deputy Attorney General Peyton Ford, Solicitor General Philip B. Perlman, Mr. Hickey, two other Department of Justice attorneys and several others were not in contempt. This was such an extraordinary action that the court issued an order the following week explaining the reasons for its action. The court eventually found Sawyer and the others in contempt, but they were saved from serving time in jail when Chief Justice Vinson granted a stay of the contempt citation pending the Supreme Court's consideration and disposition of a petition for certiorari, which the Court eventually granted.

Before the Supreme Court heard the case, the Dollars and the United States settled, agreeing to sell the disputed stock and split the proceeds fifty-fifty. In an interesting twist, Riggs Bank -- which thrived despite the alleged political vendetta which led to the perjury trial in which Presidents Taft and Roosevelt testified -- was designated as trustee of the Dollar stock pending its sale.

As the Dollar case was winding down, another case involving Secretary Sawyer -- a case that Acting Attorney General Philip Perlman said "may involve the very existence of this nation" -- was just beginning. On April 8, 1952, President Truman announced that he had ordered Secretary Sawyer to seize certain steel mills from their owners in order to avert a strike and keep the mills open. That evening, two of the steel companies' attorneys went to the home of District Court Judge Walter Bastian and asked him to issue a temporary restraining order to prohibit the President's seizure until a hearing could be held. Judge Bastian refused to consider the request until the government had a chance to be heard and so set a hearing for the next morning.

Judge Alexander Holtzoff presided at that hearing. The attorneys for the steel companies argued that the President lacked authority to seize the steel mills and so they were entitled to an injunction ordering the President to return the mills to the owners. The government attorneys instead focused upon equitable principles, arguing that the court should not even reach the question of the legality of the President's action because the companies had failed to demonstrate that they would be irreparably harmed by the seizure and that they had no adequate remedy at law. Relying upon these equitable arguments, Judge Holtzoff declined to issue the restraining order.

On April 24, Judge David A. Pine began hearings on the request for an injunction. Although the attorneys for the parties appeared to expect the court to focus on the equitable arguments, Judge Pine surprised them by inviting arguments on the constitutional question -- was the President authorized to seize the steel plants? Over two days of hearings, Assistant Attorney General Holmes Baldridge argued on behalf of the government that the President's power was not limited by the Constitution and in this instance could not be reviewed by the courts. Baldridge argued "that the President is accountable only to the country, and that the President's decisions are conclusive." The government's argument was on the whole scholarly if novel, and would not have attracted a great deal of attention had it not been made in such a high profile case. But at one point Baldridge claimed that the President had all of the authority enjoyed by King George, III, unless the Constitution had expressly taken it away from him; you can imagine how the press made hay with that statement.

On April 29, Judge Pine informed the court clerk that his opinion would be ready at 4:45 p.m. Five hundred copies of the opinion proved barely adequate for the crowd gathered at the court house. In a 15-page opinion, Judge Pine squarely rejected the government's absolute power argument and found that the President lacked authority to seize the steel mills. The importance of Judge Pine's decision was reflected on the front page of The Washington Post on April 30th. A rare double banner headline declared: COURT VOIDS STEEL PLANT SEIZURE; WORKERS BEGINNING TO WALK OUT. The Evening Star, in a phrase that is widely used today, praised Judge Pine for restoring "a rule of law in this country."

When I heard about Judge Pine's decision, I was frankly surprised. I had arrived in Washington in January 1952 to serve for a year and a half as a law clerk to Justice Robert H. Jackson of the Supreme Court. Along with my fellow law clerks, I had followed the Steel Seizure case closely since Judge Holtzoff's initial decision. Our general consensus was that because of the equitable arguments relating to irreparable injury, the court would not reach the issue of the constitutionality of the President's actions.

Judge Pine was a former U.S. Attorney and Democrat appointed to the District Court by President Roosevelt in 1940. Prior to the Steel Seizure case, Judge Pine's most notorious decision was as one of three judges who considered contempt of Congress charges against eight of the "Hollywood Ten." In that case, the eight were found guilty based on their refusal to tell the House Committee on Un-American Activities whether or not they were communists.

The day after Judge Pine issued his decision, the government sought and Judge Pine denied a stay. The government then sought a stay from the Court of Appeals, which set argument for 3:15 that afternoon. At the same time, the attorneys representing the government revealed their intention to apply to the Supreme Court to hear the appeal directly, bypassing the Court of Appeals. The government's decision to request this extraordinary form of review only added to the drama of the case. Now, rather than having the decision stayed for perhaps months before a review of the merits, it was possible that the Supreme Court might review the merits before the end of the current term.

Instead of the usual three-judge panel, all nine judges of the Court of Appeals sat to hear the government's application for a stay. The arguments lasted for nearly three hours until Chief Judge Harold Stephens announced that the court would retire to consider the government's motion. The court returned to the bench about 7:00 o'clock p.m., and voted five to four to grant a stay of Judge Pine's order, but only for 48 hours in order to allow the government to file its petition for certiorari.

The Supreme Court itself responded to the tempo of the case and granted certiorari, heard oral argument, and affirmed Judge Pine's ruling -- all before the middle of June.

I have mentioned only a few of the interesting and important cases which have been tried in the federal courts of the District of Columbia; there have been many more which have affected the interests of the nation as a whole. Beginning with Judges Kilty, Marshall, and Cranch in 1801, and continuing through those serving on the District Court and Court of Appeals today, these courts may be proud of their first 200 years.