In 1848, Supreme Court Justice John McLean was touted as a potential presidential candidate for the newly organized Free Soil Party. Although Justice McLean harbored presidential ambitions throughout his career on the Court (1829–61), he withdrew from contention on July 28. By that time, former president Martin Van Buren had emerged as the leading candidate for the nomination. In a brief withdrawal letter published in several newspapers, however, McLean stressed his affinity with the central plank of the party’s platform: the prohibition of slavery in territory the United States had recently acquired from Mexico.

In taking this stance, McLean was weighing in on the most contentious issue of his time. Just ten days before McLean wrote his letter, the Senate had passed a controversial bill known as the Clayton Compromise. That proposed law would have assigned the question of whether the California and New Mexico territories should be slave or free soil to the Supreme Court. Although the bill later failed in the House of Representatives, broader questions over the expansion or restriction of slavery continued to dominate the politics of late-antebellum America. These clashes led to the transformation of the political party system in the mid-1850s, and lingering tensions from their uneasy resolution contributed to America’s descent into civil war. McLean’s decision to step beyond his judicial role and wade into such treacherous waters raised important questions about judges’ ability to comment publicly on controversial issues, particularly when those issues were likely to come before their courts.

This was not the first time that Justice McLean, a former congressman and cabinet member, had made provocative statements. Like many Americans concerned about slavery’s influence on the national government, McLean had publicly opposed the annexation of Texas and the invasion of Mexico. He was also critical of the conduct of the war that followed. These statements, along with antislavery remarks McLean had made in judicial opinions, made him attractive to the loose coalition of abolitionists and disaffected Democrats and Whigs that made up the short-lived Free Soil Party. But McLean’s outspokenness also fueled complaints that he was electioneering from the bench.

McLean’s letter on slavery in the territories was of a different nature to his earlier political forays, however, and it elicited a more strident response from proslavery politicians. Unlike his criticisms of military matters, the letter addressed a question likely to come before the Supreme Court. Indeed, the missive alluded to the possibility that the Clayton Compromise could bring the expansion or restriction of slavery to bear “upon my position on the bench ….” Nevertheless, he attempted to apply his interpretation of existing law to debates over the powers of Congress and territorial legislatures regarding slavery’s spread. “Resting upon the principles of the constitution, as they have been judicially settled,” McLean insisted, “the free states, by moderation, vigilance and firmness, may prevent the extension of slavery to the free territory lately annexed.” For McLean, “without the sanction of law, slavery could no more exist in the territory than a man can breathe without air.” A territorial legislature, he reasoned, “can exercise no power which is not conferred on it by act of congress.” In the absence of such legislation, the territories were presumptively free soil. And so, McLean intimated, they should remain.

McLean’s letter raised eyebrows among proslavery politicians when it was published, but it became a point of genuine controversy after the election. In January 1849, U.S. Senator Henry Foote of Mississippi raised McLean’s views during Senate debates on a seemingly unrelated issue: government officials’ franking privileges. Senator Foote rose during the debate to object to judges using the privilege to send official mail without postage fees. Pointing to McLean’s free soil letter and his earlier criticisms of the Mexican-American War, Foote protested that McLean would use the franking privilege to make further incendiary political statements.

Foote’s objections had less to do with the franking privilege than with discrediting McLean’s stance on slavery. He did so in strong terms. McLean, Foote argued, “had committed the most grievous sin of which a judge can be guilty” by presuming to “adjudicate a question before it had been yet submitted to him for decision, and which he well knew was more than likely to be presented for decision in the court where he sits ….” Foote claimed that McLean had improperly attempted to decide—in a handful of lines dashed off for newspaper consumption—a “grave, momentous, and perplexed question [that] had engaged the attention of both Houses of Congress for months ….” In doing so, McLean had “declared his opinion in favor of the North against the South[,] . . . thus unfitting himself wholly to sit hereafter for the adjudication of the matter in controversy, and . . . extinguishing all hope of adjustment, such had been sanguinely anticipated, by the Supreme Court of the Union, of which he is unfortunately one of the judges.” Foote concluded that “the conduct of McLean, as a political letter-writer, is unworthy of the bench, discreditable to the country, and wholly indefensible; and I venture to predict that not one of all the learned Senators here convened . . . will evince so little self-respect as to utter a single word in his vindication.”

As it transpired, Foote was mistaken. Though no senators sprang to McLean’s defense in the context of the franking privilege debate, the issue returned to the Senate floor after the remarks were widely reported as an “assault upon[,]” and an “excoriat[ion]” of, McLean’s integrity. McLean demanded an apology from Foote, which the senator refused to give in another floor speech criticizing McLean’s public statements. At this point, Senator Thomas Corwin of Ohio rebuked Foote for his critique of McLean. Judges, Corwin argued, did not forfeit their constitutional right to speak freely on major issues when they donned their robes. A standard that required judges to remain silent on any issue that might one day arrive before their courts would effectively strip them of this right. McLean, moreover, was simply stating the law as he understood it to have been established by earlier judicial decisions.

Corwin’s last argument likely did not pass muster. The majority opinion in Groves v. Slaughter (1841), the main case to which Corwin alluded in his defense of McLean, had pointedly avoided the question of free states’ and Congress’s power to stem the spread of slavery. Concurring opinions in that case, moreover, revealed deep rifts between justices regarding the interaction of state slave laws and federalism concerns. McLean’s concurrence stressed that each state had “a right to protect itself against the avarice and intrusion of the slave dealer, to guard its citizens against the inconveniences and dangers of a slave population.” Chief Justice Taney and Justice Henry Baldwin questioned that proposition in a proslavery counter-concurrence. McLean’s letter was broadly consistent with his own jurisprudence on the Supreme Court and the U.S. circuit courts in the Seventh Circuit, but it was far from clear that he was merely restating widely accepted judicial norms.

Nevertheless, Corwin’s other defenses of McLean’s statements were redolent of difficult questions posed by judges’ extrajudicial speech. On the one hand, there was a danger that a judge might appear to have prejudged a case that might come before him. But there could also be benefits to allowing judges the freedom to speak when their expertise might elevate a conversation. As a supportive newspaper argued:

If a favorite political error shall happen to be dispelled by the words of a [Supreme Court justice], we are much more ready to return him our thanks for his teaching, than to rebuke him for interfering with the matter, even though it may be beyond his province, and though it may be an error to which we had been addicted. . . . We would hail with delight, if the press could avail itself of the labors of every . . . judge in the land. Right and justice, we are sure, would be promoted by their mingling in the discussion of public topics, and error and crime would more rapidly be corrected and cured.

Questions about the propriety of judges speaking out in this way continued to arise occasionally in the decades that followed. The controversy surrounding McLean’s letter and his other remarks sometimes served as a touchstone in such debates. In this instance, however, the disagreement was dissipated rather than definitively resolved. Though Senator Corwin had accused Foote of laying the groundwork for a trumped-up impeachment movement against McLean, Foote denied such an agenda, and the dispute lost steam amid broader debates over the fate of the territories.

When the Supreme Court did eventually address the issue of the prohibition of slavery in the territories in Scott v. Sanford (1857), it adopted a far more limited view of Congress’s power than McLean had laid out in his letter. Chief Justice Taney’s opinion for the Court held that Congress’s power to “make all needful rules and regulations respecting” U.S. territories did not include a blanket power to ban slavery and that the Fifth Amendment’s Due Process Clause protected the property rights of slaveholders as they moved from slave states into free territories. The full meaning of these rulings remained a point of controversy until the Thirteenth Amendment (ratified in 1865) rendered it obsolete, though critics of Scott argued the decision threatened to all but nationalize the institution of slavery. McLean wrote a celebrated dissenting opinion sharply questioning Taney’s reasoning, arguing that Congress had always possessed, and had frequently used, the power to limit the spread of slavery into the territories. This position was very similar to the view he had urged in his earlier letter.

Winston Bowman, Associate Historian
For more information, contact history@fjc.gov

Related FJC Resources:
McLean’s entry in the Biographical Directory of Article III Federal Judges

Further Reading:
Finkelman, Paul. “John McLean: Moderate Abolitionist and Supreme Court Politician.” Vanderbilt Law Review 62, no. 2 (Mar. 2009): 519–566.

Swisher, Carl Brent. History of the Supreme Court of the United States. Vol, 5, The Taney Period, 1836–64. New York: MacMillan, 1974.