Vermont Bar Journal, Vol. 40, No. 2 Vermont Bar Journal, Summer 2019 | Page 17

Was Sherman Moulton a morbid, Repub-
lican justice? The cases do not show it. He
may well have been a partisan in politics
at home, across the dinner table, but his
decisions show no infection of politics into
his work on the court. He was certainly a
conservative. This is seen in his constitu-
tional decisions, which focused largely on
separation of powers issues. He punished
acts of discretion without standards. Where
government action was challenged, he was
more likely than not to affirm what officials
have done than second-guess them in their
duties.
Lucky for us we do not insist on our judg-
es leaving their moral compasses at the
door of the courthouse. We do not want
men and women on the bench with no in-
terest in politics. We don’t want politics to
affect their reasoning, but far worse than a
judge with a conservative or liberal philos-
ophy is a judge with a blank mind, with no
interest in how the world works.
____________________
Paul S. Gillies, Esq., is a partner in the
Montpelier firm of Tarrant, Gillies & Rich-
ardson and is a regular contributor to the
Vermont Bar Journal. A collection of his
columns has been published under the ti-
tle of Uncommon Law, Ancient Roads, and
Other Ruminations on Vermont Legal His-
tory by the Vermont Historical Society. Paul
is also the author of The Law of the Hills: A
Judicial History of Vermont (© 2019, Ver-
mont Historical Society).
____________________
1
William Hassett, Off the Record with FDR:
1942-1945 (Rutgers, NJ: Rutgers University
Press, 2016), 236.
2
Sherman R. Moulton was born in New York
City on June 10, 1876, and moved to Ran-
dolph in 1890. He was educated at Randolph
High School, Dartmouth College (A.B., 1898),
and Harvard Law School (LL.B., 1901). He was
admitted to the Vermont bar in October 1901,
and located in Burlington in 1903. He served as
City Grand Juror, executive clerk to Governor
Charles W. Gates, reporter of decisions (1916-
1919), and was elected Chittenden County Sen-
ator. Shortly after taking office, he was elected
Superior Judge on February 1, 1919. He held
that office until appointment as Chief Superior
Judge on April 2, 1926. Governor Franklin Bill-
ings appointed him Associate Justice of the Su-
preme Court on November 1, 1926 upon the
resignation of Fred Butler. On September 23,
1938, following the death of George M. Powers,
Moulton was appointed Chief Justice by Gover-
nor George D. Aiken. He retired April 1, 1949.
He died on June 16, 1949.
3
“Chief Justice Defends Judicial Independence
After Trump Attacks ‘Obama Judge,’” New York
Times, November 21, 2018.
4
This essay is not interested in politics in the
selection of judges, which is a subject for anoth-
er day. Politics were involved in the elections of
judges in 1798 (called the Vergennes Slaughter-
house), 1801, 1813, and 1815. Later, the politics
of a judge mattered less. “In 1870, a vacancy oc-
curred on the supreme court bench. Mr. [Timo-
thy Parker] Redfield had always been a democrat
www.vtbar.org
in politics, but his fitness for the position was so
generally acknowledged that he was elected to
the place by a legislature overwhelmingly repub-
lican, and against numerous competitors.” B.F.
Fifield, “Timothy Parker Redfield,” Abby Maria
Hemenway, The History of Washington County
(Montpelier, Vt.: Vermont Watchman and State
Journal Press, 1882), 540.
Politics comes into courtrooms through
challenges to nominating processes and elec-
tion challenges. See Judd v. State, unreported
(2012). Defamation is another entry point. In
1901, E.M. Sutton was indicted for defaming the
Supreme Court. The report of the decision in-
cluded the offensive language: “There is no use
for a Democrat to bring anything to the supreme
court of Vermont where politics is involved, and
there is an unbroken line of just such procedure
for the last forty years.” State v. Sutton, 74 Vt. 12
(1901). The indictment was upheld on appeal.
5
“As goes Maine, so goes Vermont,” quipped
FDR’s campaign manager James Farley, mock-
ing the axiom that “As goes Maine, so goes the
nation,” popular in earlier elections. Columbia
Daily Spectator, 5 November 1936.
6
See Samuel B. Hand, The Star That Set: The
Vermont Republican Party, 1854-1974 (Lanham,
Ma.: Lexington Books, 2002).
7
www.dictionary.com/browse/morbid.
8
Andrew Burstein, Democracy’s Muse: How
Thomas Jefferson Became an FDR Liberal (Char-
lottesville, Va.: University of Virginia Press, 2015).
9
“Various Editorial Notes,” Argus and Patriot,
6 October 1886, 6.
10
The term “morbid” when associated with “Re-
publican” is an epithet that appeared in newspa-
pers as early as 1868, although the phrase rare-
ly appears in print in other sources. “We merely
commented upon a statement in the World that
a large amount of money was about to be sub-
scribed to compel the President’s acquittal, and
upon the current rumors that there were men
clamoring to be Republicans who were morbid
and sick with dissatisfied ambition.” “The States-
manship of Impeachment,” Daily Ohio states-
man, 13 May 1868, 2.
“The Albany Argus (dem.), reciting ‘the is-
sues before the county,’ asserts that the ‘whole
republican policy is merely a morbid method of
governmental action. The natural action is to
be attained by a return to healthy democratic
principles. The real issue before the county is,
whether these morbid and unhealthy republi-
can processes shall continue, to the exhaustion
and destruction of the vital forces, or whether
the government shall discharge its functions as
it founders designed.” “Personal Intelligence,”
The New York Herald, 15 February 1876, 4.
“And Thomas Sullivan, too, if it had been left
to the Sixth District it would never have been
patent to the citizens of New York that there
was such a thing as the morbid Republicans, the
canting fusion abomination and the so-called re-
former.” Howard Craig, “Manhattan and Bronx
News,” The Tammany Times, v. 18-19 1901-
1902, 9.
Political membership was not a permanent
characteristic of judges. Asahel Peck was origi-
nally a Democrat but changed his mind after be-
coming “strongly aroused by the aggressions of
the slave power, and after the formation of the
Free Democracy or Liberty party, he identified
himself with that, and was its candidate for Con-
gress in this district.” Later, he became a Repub-
lican. Burlington Free Press, 23 May 1879, 3.
11
Justice Louis Peck is the only member of the
Supreme Court to call its decisions “activist.”
He condemned the “runaway liberalism” of the
court. State v. Oakes, 157 Vt. 171, 184 (1991)
(“The majority opinion is additional evidence, if
any is needed at this point in time, that within
THE VERMONT BAR JOURNAL • SUMMER 2019
What have we learned?
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