Vermont Bar Journal, Vol. 40, No. 2 Vermont Bar Journal, Summer 2019 | Page 12

by Paul S. Gillies, Esq.
RUMINATIONS
Politics and the Court
On November 18, 1944, President Frank-
lin D. Roosevelt attended a cocktail party in
Burlington. William Hassett, who traveled
with FDR for several years, reported that
Stella Pratt Moulton, the wife of Vermont’s
Chief Justice, told the president, “although
her husband was a ‘morbid’ (new descrip-
tive adjective) Republican, she had voted
for the President; also to tell him that the
wives of the old-line Republican members
of the faculty of the University of Vermont
all had voted for him.” 1 Hassett’s mem-
oirs were published in 1960. Chief Justice
Moulton died in 1949, and may never have
known what his wife told the President.
The private lives of justices are none of
our business, but all the same it is hard not
to focus on the idea of a “morbid Repub-
lican.” Did Mrs. Moulton reveal something
about the Chief? Would his political phi-
losophy show in his decisions on the court?
There are plenty of decisions to choose
from. Moulton served 30 years as a judge,
seven as a Superior Court Judge, 23 on the
Supreme Court, and nearly eleven of those
years as Chief Justice. He authored more
than 100 decisions as Chief, more than 160
as an Associate Justice. 2 Are his political
opinions reflected in this body of work?
Chief Justice John G. Roberts, Jr. said
recently, “There are no Obama judges or
Trump judges, Bush judges or Clinton judg-
es. What we have is an extraordinary group
of dedicated judges doing their best to
do equal right to those appearing before
them.” 3 But some judges are conservative
and some are liberal and some are progres-
sive. These biases are political, even if they
are detached from any political party plat-
form. Let’s investigate. 4
Standard of Review
We begin by defining terms. As a Re-
publican, Sherman Moulton was not alone.
Every Governor from 1854 to 1962, when
Phil Hoff became the first Democrat to be
elected to the high office, was a Republi-
can. Vermont was Republican. There were
factions within the Republican Party, a con-
servative wing and a progressive wing, but
Vermont progressivism was very unlike the
progressivism of 2019. And the Republican
Party of the thirties and forties was not like
the party or its positions today. The natu-
ral fiscal conservatism of state leaders was
hardened by the two world wars and the
depression. FDR won every state in the na-
12
tion in the election of 1936 except Maine
and Vermont. 5 He never won Vermont in
four presidential elections. 6
The Republican Party of the 1940s was
not purely conservative. It was the first ma-
jor party to endorse an equal rights amend-
ment for women in its platform, in 1940.
But it was opposed to the Democrats’ at-
tempts to concentrate power in the fed-
eral government, consequently limiting
the powers of states and interfering in pri-
vate commerce, setting minimum wages
and hours, fixing prices, and regulating the
workplace.
“Morbid” in this context is more chal-
lenging. An online dictionary defines it as
“characterized by or appealing to an ab-
normal and unhealthy interest in disturb-
ing and unpleasant subjects, especial-
ly death and disease.” Synonyms include
“ghoulish, macabre, gruesome, grotesque,
ghastly,” and “unwholesome.” 7 As applied
to politics, the term has an obvious pejo-
rative meaning. Arthur Schlesinger, Jr. la-
beled Richard Nixon a morbid Republican,
in Kennedy or Nixon: Does It Make a Dif-
ference? (1960). 8 The first use in a Vermont
paper came in 1886, when the editor of the
Argus and Patriot, a Democratic newspa-
per published in Montpelier, commented,
“This record of the administration for pay-
ing the debts of the government is a most
satisfactory and enviable one, and abun-
dantly demonstrates the economic ability
and tendency of a thoroughly Democratic
government. Those morbid Republicans,
ranters who have prophesized financial ruin
to the government by a Democratic admin-
istration, are invited to consider those facts
and figures.” 9
Perhaps Mrs. Moulton intended it to
mean “dedicated” or “determined” (but
not “rabid”), connoting a political philoso-
phy that was unsusceptible to change. We
can only imagine the discussions that must
have occurred at the Moulton home during
the era of the New Deal, the U.S. Supreme
Court’s repudiation of its programs, and
the threat of enlarging the highest court in
the land to overcome that conservative op-
position to FDR’s efforts to introduce “so-
cialist” programs and expand the reach of
the federal government. 10
“Morbid” wasn’t easy, but how about
“conservative”? The political dividing line
between conservative and liberal or pro-
gressive judges is reflected in several ways,
including the relative deference to the leg-
THE VERMONT BAR JOURNAL • SUMMER 2019
islature in reviewing acts for their constitu-
tionality, and a consequent reluctance to
exercise judicial review to undo what the
legislature has enacted. “Activist” judges
are more likely to invalidate legislation on
such grounds. 11 In criminal law, a conserva-
tive judge may be less likely to recognize
the privacy rights of landowners in the in-
vestigation of crime, less likely to extend
constitutional protections against unlawful
search and seizure, less willing to dismiss
prosecutions on the dividing line between
words taken down after Miranda warnings
than before. To a conservative, “judicial
legislation” is anathema.
Another issue is delegation. The laws
must have standards to be enforceable;
without them, whatever action is taken is
arbitrary and indefensible. This idea has de-
feated many laws at the federal and state
levels, on separation of powers grounds,
where the legislature has improperly ceded
to the executive the power to make quasi-
judicial decisions or quasi-legislative rules
or ordinances, with undefined discretion.
Conservative judges share a strong be-
lief in precedents. What has been decid-
ed should not be easily overturned. They
favor property rights, are likely to find un-
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