Why Are There Nine Supreme Court Justices?

For absolutely no reason at all I thought we'd spend a little time talking about the Justices of the Supreme Court, specifically, why are there nine of them? 

The Constitution...well, the Constitution isn't a foolproof document. It's not, you know, the Bible. The Constitution doesn't address the rights of people of color, or women. As it relates to the function of the Supreme Court the Constitution doesn't even outline what the exact power of the Supreme Court would be, nor does it explain how the Judicial Branch should be organized, nor does it even set out how many justices should sit on the Supreme Court, their qualifications, age, experience, or even citizenship. The only reason there's a Chief Justice at all comes from Article 1 Section 3 in which it says, in reference to impeachment proceedings:

When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrent of two thirds of the members present. 

Like a lot of issues the United States would encounter - be it slavery or women's rights - if you look to the Constitution for guidance, you're likely to find that the Founding Fathers (in all their infinite wisdom) kicked the can down the road for someone else to deal with. The Constitution of the United States was ratified so as to replace the Articles of Confederation because, buddy, the Articles of Confederation sucked.

So when the Washington administration and the 1st Congress took office, figuring out the judiciary system was fairly important - the first bill to come before the Senate was "An Act to Establish the Judicial Courts of the United States," or Judiciary Act of 1789. It established the "structure and jurisdiction of the federal court system," as well as creating the office of the Attorney General. The basic system established with the Judiciary Act of 1789 is basically the same today, with a few changes here and there. We'll get into those in a minute.

The Judiciary Act of 1789 divided the country into 13 judicial districts (one for each state) which were then organized into an Eastern, Middle, and Southern District. Initially there was a Chief Justice and five Associate Justices. That makes six - two for each District. Until 1890 the Justices of the Supreme Court were obligated to "ride circuit" and hold court twice a year in each judicial district. What about 3-3 ties? Maeva Marcus, a research professor at George Washington University and the director of GWU's Institute for Constitutional History, said they weren't worried about that because they were all Federalists, anyway.

After declining Washington's offer to become his first Secretary of State, New York's John Jay accepted the position of Chief Justice of the Supreme Court hoping that the judicial branch would be on equal footing with the executive and legislative branches. The first real test was 1793's Chisholm v. Georgia. The State of Georgia had purchased supplies from South Carolina merchant Captain Robert Farquhar during the Revolutionary War, but later refused to pay because Farquhar was a British loyalist. After Farquhar died, Alexander Chisholm became executor of Farquhar's estate, and promptly sued the State of Georgia in the Supreme Court for the unpaid amount (this was A Thing at the time). Upon notice of the lawsuit, Georgia said it was immune from lawsuits because it was a sovereign state, and just...didn't show up. 

On its face, Georgia's was a preposterous argument. Article III Section 2 of the Constitution says federal courts can decided cases "between a State and citizens of another State." They ruled in Chisholm's favor, ordering Georgia to pay up. Remember that - at the time - there were two political parties: Federalists (like Alexander Hamilton and John Jay) and Anti-Federalists (like Thomas Jefferson and James Madison), whose entire platform was to support the opposite of whatever the Federalists wanted. As soon as the Supreme Court ruled against Georgia, it led to an outcry against the overreach of the federal government - precisely what the Anti-Federalists feared. Georgia still said they wouldn't pay. John Jay quit the Supreme Court to be the governor of New York, angry over the lack of respect for the judiciary as well as the demands of riding the circuit, given the transportation quality of late-18th century American roads. By 1795 Congress had passed and the states had ratified the 11th Amendment, which said the judicial branch's power doesn't extend to lawsuits brought against a State by a citizen of another state or foreign country. Congress neutered the Supreme Court...for a while.

There were three Chief Justices in the first eleven years of the Supreme Court from 1789-1800: Jay, John Rutledge (who lasted just over four months because he served in an interim capacity during a Congressional recess. When Congress returned from recess, the Senate didn't confirm him and his nomination was withdrawn. Nevertheless his four months count) and Oliver Ellsworth (who wrote the Judiciary Act of 1789). Ellsworth's term lasted the duration of the Adams administration, and retired because of "the gravel and the gout" in his kidneys.

This is where things get a little weird with the executive branch and the judiciary. Over the course of the campaign for the presidency in 1800, the incumbent Federalist John Adams and Secretary of State/OG Anti-Federalist (who by this point went by the Republicans) Thomas Jefferson waged a bitter war more reminiscent of recent political campaign history than what you would expect. 

The Federalists called Jefferson an "atheist in religion, and a fanatic in politics" (history doesn't repeat itself, but it does rhyme). Yale President Timothy Dwight said a Jefferson presidency would result in the Bible being "cast into a bonfire, our holy worship changed in a dance of Jacobin [frenzy], our wives and daughters dishonored, and our sons converted into the disciples of Voltaire...Murder, robbery, rape, adultery, and incest will be openly taught and practiced, the air will be rent with the cries of distress, the soil will be soaked with blood, the nation black with crimes."

Federalist newspapers warned prospective voters (i.e., White Dudes) with excessive use of All-Caps:

Shall I continue in allegiance to GOD - AND A RELIGIOUS PRESIDENT; or impiously declare for JEFFERSON - AND NO GOD!

Thomas Jefferson - or, rather, James Callender (who is responsible for spilling the beans about Jefferson and Sally Hemings), a friendly newspaper editor, fired back by saying that Adams had a "hideous hermaphroditical character which as neither the force and firmness of a man, nor the gentleness and sensibility of a woman." Devastating. The election of 1800 is deserving of a separate post. Basically, Jefferson and his proposed vice president Aaron Burr tied in the electoral college. After some shenanigans from Aaron Burr, Alexander Hamilton convinced his fellow Federalists that it was better to give their vote to a Jefferson, who at least was somewhat consistent and seemed to believe in something, rather than Burr, the guy who (wait for it) "would do anything to get his hands on power." 

By December 1800 Adams didn't know who would be president, but he knew it wouldn't be him. he was trying to find a new Chief Justice of the Supreme Court to replace Ellsworth. Congress was soon to debate reducing the number of Supreme Court Justices from the six that Washington had set to five, in order to avoid ties, and Adams thought it improper to nominate a sixth member of the Supreme Court while Congress was debating such a bill. He nominated Secretary of State John Marshall, mainly so that Jefferson wouldn't get to do it. The Senate wasn't happy, as it was a surprise nomination, but they didn't have much time before the Jefferson Administration was running the show, and figured that even a bad Federalist was still better than a Jeffersonian Republican. John Marshall was confirmed as Chief Justice on February 4, 1801. They still did not know who would be president, but for a month (the inauguration was then on March 4) Marshall served both as Adams' Secretary of State and Chief Justice of the Supreme Court.

On February 17, 1801 Jefferson prevailed over Burr on the 36th ballot. Burr would be Jefferson's vice president for the next four years which was likely extremely awkward. John Adams finished 3rd. He and his son John Quincy Adams would be the only one-term presidents until 1840. 

While Adams peacefully left office after such a bitter campaign, he and the Federalists did do one thing that would eventually give the Supreme Court the power John Jay so desperately desired: they installed as many Federalist judges as they could until the day of Jefferson's inauguration, which Adams did not stay to attend, so as to place a check on the Jefferson Administration.

On March 2, 1801 - two days before Jefferson's inauguration - Adams submitted 42 judicial appointments to the Senate, which they confirmed on March 3, with Jefferson's inauguration on March 4. When Jefferson saw the commissions for these "Midnight Judges" (or Midnight Appointments) he told his Secretary of State (and future president) James Madison to simply not deliver the commissions to four of the intended judges. Later that month Jefferson wrote Henry Knox [edited for clarity]:

This outrage on decency shall not have its effect, except in the life appointments which are irremovable, but as to the others I consider the nominations as nullities & will not view the persons appointed as even candidates for their office, much less as possessing it by any title meriting respect.

One of these commission-rich but appointment-poor judges was named Stephon William Marbury, appointed to be the Justice of the Peace in Washington, D.C. When Marbury did not receive his commission, he appealed to the Supreme Court, led by...Chief Justice - and Adams' Secretary of State - John Marshall. Marbury v. Madison, which was handed down on February 24, 1803, is the first truly landmark case in Supreme Court history. 

Marshall decided, through some actually brilliant legal analysis, that the Supreme Court's power was too narrow under the powers vested by the Constitution to decide the fate of Marbury's appointment. I'll turn it over to Kent State:

The Constitution, [Marshall] concluded, allowed the Supreme Court 'original jurisdiction' in only a limited number of specified situations, and they did not include the kind of order Marbury asked for. Since Marbury was only following the guidelines of a provision of the Judiciary Act of 1789, Marshall concluded that this provision was unconstitutional. 

Jefferson was pissed, but Marshall's ruling didn't give anything for Jefferson to punch at, since the Court itself was refusing to grant the power under the Judiciary Act. Marbury v. Madison also established the precedent of Judicial Review - in which the Supreme Court now had the power to rule laws passed by Congress as unconstitutional. 

In a clap-back by Jefferson's Republicans, they impeached Supreme Court Justice Samuel Chase in 1805 for politicizing his seat on the bench, "tending to prostitute the high judicial character with which he was invested, to the low purpose of an electioneering partizan," having continually referred to Jefferson and the Republicans as atheists. The Senate, which consisted of 25 Jeffersonian Republicans and nine Federalists, acquitted Chase - because being combative isn't necessarily treason - and he remained on the Supreme Court until his death in 1811. Regular reminder that successfully impeaching anyone is hard, and that's on purpose. 

After Marbury v. Madison and the acquittal of Samuel Chase, finally the Supreme Court was on equal footing with the other branches of government. That was a very long aside, but it's important to know how the Supreme Court was elevated from a branch that Georgia could just drop like 3rd Period French to being the Scissors in Governmental Rock, Paper, Scissors. 

Anyhow, the number of Supreme Court justices changed six times before 1869. One of those times was another lame-duck Adams/Federalist attempt to reduce the power of Jefferson with the Judiciary Act of 1801, which reduced the number of Supreme Court justices from six to five...beginning with the next vacancy meaning that Jefferson would have to wait for two vacancies before he could nominate a Republican. Petty af. That act was repealed almost immediately, returning the number of justices to six. 

As the United States expanded west, however, it increased the number of circuit courts. In 1837 the number of district circuit courts were expanded, which resulted in Andrew Jackson nominating two additional Justices. By 1857 there were nine circuit courts, meaning there were nine Supreme Court Justices. Who establishes the number of these particular courts? Congress. In 1863 a 10th court was added to cover California/Oregon and, frustrated over Dred Scott v. Sandford, Lincoln added a 10th Supreme Court justice to ensure an anti-slavery majority. After Lincoln was assassinated and the extremely problematic Andrew Johnson had already vetoed the Civil Rights Act of 1866, Congress reduced the number of Supreme Court justices to seven in an effort to make sure he couldn't fill a vacant seat. With the passage of the Judiciary Act of 1869, the number of Supreme Court justices was increased from Johnson's seven back to nine, including one Chief Justice, as a gift to President Ulysses S. Grant. Nine Supreme Court Justices has been the number ever since, though there were some challenges.

By the 1930s the Supreme Court was extremely Republican, which wasn't exactly what President Franklin D. Roosevelt was looking for when he was trying to get New Deal legislation passed. Four of the nine members of the Supreme Court: Pierce Butler (confirmed 1922), James McReynolds (confirmed 1914), George Sutherland (confirmed 1922), and Willis Van Deventer (confirmed 1903) - straight-up hated the New Deal. Known as the Four Horsemen, they gained a majority when the Herbert Hoover-appointed Owen Roberts, in his Age 60 season was the youngest of that particular iteration of the Supreme Court, started to vote with the elder statesmen to make a conservative majority on the Court, started to invalidate key pieces of FDR's New Deal. Chief Justice Charles Evans Hughes was the Secretary of State for Republican presidents Warren G. Harding and Herbert Hoover, struck down an impressive amount of New Deal legislation - including a minimum wage for women and children, for God's sake. 

Roosevelt was tired of it. Thanks to the vagaries of the Constitution he didn't need an amendment to change the composition of the Supreme Court but he did need Congress. The 75th Congress (1937-1939) enjoyed a Democratic super-majority thanks to the popularity of FDR and the New Deal. In February 1937, emboldened at the outset of a 2nd term as president, FDR proposed adding an additional Justice for any Supreme Court justice over the age of 70. That number, at the time, would bring six additional Justices to the Supreme Court - of his choosing - resulting in a Supreme Court of 15 members. This was FDR's infamous Court-Packing Scheme. Eventually FDR backed down after two justices upheld the National Labor Relations Act and the Social Security Act, but that was the last major effort to change the very structure of the Supreme Court. 

I know we all like to think that this country is based on hallowed traditions, but one of those traditions is the petty tinkering with institutions based on how it benefits the party in power in that particular instance. That said, the precedent for an equal number of Supreme Court Justices for every district court has long been established. And right now? There are 12 regional circuits.

The Black Tom Munitions Explosion

Black Tom Island - a man-made island named after a "dark-skinned fisherman" who lived there - stood next to Liberty Island in New York City Harbor. It was the site of a rock of the same name which had proved costly to the shipping industry, so engineers used literal New York City trash to build up an island around the rock. By 1880, it was a 25-acre plot of land with a causeway and railroad to turn Black Tom Island into an important piece of New York City's economy. In an 11-year period from 1905 to 1916, the Lehigh Valley Railroad - which ran from Buffalo, through eastern Pennsylvania, then on into New York - used more trash to expand Black Tom Island before it was annexed by Jersey City. There was a mile-long pier with a depot and storage warehouses that also served as a munitions (military weapons and whatnot) depot. 

Tensions between the United States and Germany were rising...over Mexico. When Francisco Madero took power of Mexico in 1911, the United States approved. When Madero was assassinated in 1913, Victoriano Huerta took power. The US opposed Huerta, but Germany supported him basically to get a naval base out of the deal. Things escalated when the United States shelled Veracruz to stop a delivery of German weapons to Huerta, and had just simmered down between Germany and the United States when Austrian Archduke Franz Ferdinand was assassinated in Sarajevo, sparking World War 1. 

Weird things started happening in the United States. A DuPont powder factory exploded in Pompton Lakes, New Jersey in August 1914 - just weeks after Franz Ferdinand's assassination. Two months later a bomb went off at the Detwiller and Street fireworks factory in Jersey City, killing four.  The Roebling Works, an important cable factory in Trenton, burned down in January 1915. Boats were found sabotaged. But who was behind it?

Problematic as it seems now, American munitions companies could sell their stuff to whoever they wanted. However, as World War I erupted across Europe, the United Kingdom ran a blockade across the Atlantic in an attempt to cripple Germany. Despite the United States' official position of neutrality (Germany was the second-largest source of immigrants to the United States) in 1914, the US would only sell munitions to the Allied Powers of the United Kingdom, France, and Russia (it wasn't the Soviet Union until a few years later), mainly because the Allies were willing to pay, and the United States was in debt prior to World War 1 and out of debt by the end of it.

The Germans complained because how you gonna be neutral and then sell tons of weapons and ammunitions to only one side of a war? The United States shrugged their shoulders because cash ruled everything around them. The collective shoulder shrug of the United States was a direct cause of Germany issuing in February 1915 "unrestricted submarine warfare" against any ship - neutrals included - who were sailing to Great Britain. Germany placed a warning in American newspapers telling them that, if they sailed for Great Britain, they were at risk. Around the same time, Germany confirmed its previous authorization for military attaché in Washington - Franz Von Papen - to begin sabotage operations against "every kind of factory supplying munitions of war." Von Papen had served in the German Embassy in Mexico during the revolution, and spent most of his time forging documents for Germans in America to get through the blockade back to Germany. He also spent some time working with activists from India in California to acquire American weapons for a possible revolution. But Von Papen was a trained diplomat, not a spy, and he couldn't get much of anything done. 

The Canadian-Pacific Railroad crosses the St. Croix River at Vanceboro, Maine and St. Croix, New Brunswick. On February 2, 1915 Werner Horn, an officer in the German Reserves was ordered from his job managing a coffee plantation in Guatemala to go to Maine and help sabotage the bridge, which was being used to transport food and supplies to St. John, New Brunswick, bound for the Allied front, and other bridges on the Maine-New Brunswick border. The saboteurs met up in Portland, Maine and decided that due to the cold (30-below temperatures) and wind, the plan should be scrapped. Horn didn't make it to that conspirator meeting and, instead of bailing like everyone else, he checked into a Vanceboro hotel on February 1 before taking a briefcase filled with dynamite to the bridge. He waited for hours in the cold before placing the suitcase on the Canadian side of the bridge and lighting the fuse with his cigar. The bomb did enough damage to blow out windows in both Vanceboro and St. Croix and when the German returned to his hotel, suffering from frostbite, the police had already been called. Horn surrendered in his uniform so as not to be accused of being a spy - a capital offense. The bridge was out of commission for about a day, Horn spent 30 days in jail. A reporter asked Horn how much he was paid, to which he responded in a heavy accent, "I did not blow up the bridge for money. I am a soldier, not a mercenary. I acted for the good of the Fatherland!" Horn snitched on Von Papen real quick.

In May 1915, the Lusitania was torpedoed and sank in 15 minutes off the coast of Ireland (I highly recommend Erik Larsen's "Dead Wake" on this subject). That German attack on the Lusitania, a passenger ship secretly modified to deliver war materials, killed 1,195 people including 128 Americans and re-heightened tensions between Germany and the United States. The United States' government, thanks to diplomatic immunity, could not arrest Von Papen and instead requested that Von Papen be recalled, to which Germany acquiesced. (Von Papen would later go on to naively assume he could hold power and keep the newly-formed Nazi Party in check, thus facilitating the rise of Adolf Hitler).

Germany replaced Von Papen in April 1915 with Capt. Franz Von Rintelen, an English-speaking aristocratic naval captain with a Swiss passport and a ton of dirty tricks up his sleeve, ordered to carry out a coordinated sabotage operation in the United States. He knew about as much about clandestine operations as Von Papen did, but had some creativity about him and decided to go all-in on it because, as a member of the New York Yacht Club, he knew Manhattan society. Dude had five aliases. Von Rintelen got his funding directly from Berlin and operated independently. Before departing for the United States, Von Rintelen told Admiral Alfred Von Tirpitz, "I'll buy what I can and blow up what I can't."

Germany was still trading with the United States, and Von Rintelen used the 80-ish German ships hanging out in New York harbor as a new network of problems for the United States. One of the ships' workrooms became a bomb factory. Von Rintelen convinced a German chemist in New Jersey to build cigar-shaped firebombs and allegedly used Irish dockworkers to place them on ships bound for Europe. The "pencil bombs," as they were known, could be timed to detonate days after their placement on the ships.

At this time the United States didn't have much of a national intelligence service. Though the Secret Service was founded in 1865, they were basically told to just watch the president and...counterfeiters. That changed a bit in 1915. The Secret Service didn't find Von Rintelen, but they did manage to steal a briefcase from a New York City streetcar in July belonging to German Interior Minister Heinrich Albert. In the briefcase, the Secret Service found documents related to the sabotage of American munitions plants, as well as documentation related to what is now known as the Great Phenol Plot.

Phenol is a major precursor compound in organic chemistry that could be used to make the salicylic acid used to make aspirin, as well as picric acid - a highly-explosive compound. Thomas Edison also used phenol to make his "Diamond Disc" phonograph records. By the time World War 1 was underway, Great Britain was using phenol almost exclusively for the war effort, severely reducing the amount available for export. Supply-and-demand rules went into effect and the price of phenol skyrocketed. German manufacturer Bayer had to drastically cut production of aspirin right at the time that the patent for aspirin was expiring. Bayer was undergoing a rebranding in advance of the expectation of expiration, and they were not happy about the supply chain. Counterfeiters, Canadian manufacturers, and smugglers tried to make up the demand for phenol, but it wasn't enough. Thomas Edison built a factory in Pennsylvania to produce it. Hugo Schweitzer, a Bayer employee-turned-agent for the German Interior Ministry, set up a front where he bought as much phenol as he possibly could from Edison to send on to Germany. When Edison found out what was happening, he tried to cover it up, but that only made it worse when the New York World - an anti-German newspaper - ran an explosive (haha) story on the plot. Edison tried to make amends and repair the damage to his reputation when it came out that he had basically supplied the German government with enough phenol to produce 4.5 million pounds of explosives. 

Von Rintelen was recalled to Berlin. A decoded message tipped off the British on his way through the English Channel, and he got detained. The Swiss passport threw them off for a bit, but he was quick to chirp that he was an enemy officer. By late 1915 Von Papen got expelled from the United States. When his ship was detained he claimed diplomatic immunity, which the British interpreted as not extending to his luggage, where they found a whole handful of incriminating documents. The British shared these documents with the United States, hoping to nudge them towards joining the war against Germany. Von Rintelen was arrested and spent three years in a jail in Atlanta.

Next problem: Once the US expelled those "diplomats," they didn't know where to continue the investigation. The NYPD had to take the case and had a hard time working with New Jersey authorities and any other agency tasked with figuring out just what, exactly, was happening. Eventually, they realized that, in order to catch German saboteurs, you needed German-speaking friendlies. After spending countless nights in dockside bars, the ship bombings largely stopped.

There were about 2,000,000 pounds of ammunition - three-quarters of the total American munitions output - stored at Black Tom Island, including 100,000 pounds of TNT and 417 fuses on a barge docked there, all waiting to get shipped to the Allied front. The barge with all the TNT was there so as not to have to pay a $25 fee in New York City. 

Just after midnight on July 30, 1916 guards noticed small fires on Pier 7. Some took off, fearing an explosion, others called the Jersey City Fire Department. At 2:08am, it exploded. Just over 30 minutes later there was a second, smaller explosion. The first explosion was absolutely massive, lifting Jersey City Fire Chief Roger Boyle out of his boots and into the air, the result of a detonation wave that traveled 24,000 feet per second. A police driver told the New York Times:

The things were red-hot when they fell, and we had a lively time keeping out of their way. All at once, everything turned black. The last thing I knew, I was lifted up and thrown away. When I came to, it was raining steel and bricks and shells and shrapnel.

Fragments from the explosion lodged in the Statue of Liberty, shrapnel popping the rivets on the statue's extended right arm, and the torch has been closed to the public ever since. Over a mile away, the clock tower of the Jersey Journal building was hit by debris, stopping its clock at 2:12am. The blast was felt as far  as Philadelphia - 90 miles away. Windows were broken as far as 25 miles away. The stained-glass windows at St. Patrick's Cathedral in Jersey City were shattered. The explosion cracked the wall of the Jersey City City Hall. It shook the Brooklyn Bridge. The blast shook the PATH system under the river connecting Jersey City and lower Manhattan. Cemeteries in Jersey City had tombstones knocked over, and vaults "jolted askew."

People in Maryland woke up thinking it was an earthquake, which is understandable considering that the explosion registered between a 5.0 and a 5.5 on the Richter scale. For comparison, when the North Tower of the World Trade Center collapsed on 9/11, it registered as a 2.3. Immigrants awaiting processing at Ellis Island had to be evacuated. Debris rained down for two hours. Fort Wood, which was on Liberty Island, had a 4" thick door at its main entrance wrenched off its hinges. The next morning, when the smoke literally cleared, four people were killed (including a 10-week old baby who had been thrown from his crib). Damage was estimated at $20 million, nearly half a billion dollars today. adjusting for inflation.

Attention turned to the cause of the explosion itself. Was it just an unfortunate accident, or was there something more sinister to suspect? At the scene, there was only confusion. Three Lehigh Valley Railroad Company officials were arrested for manslaughter. Two guards who had lit oil-burning smudge pots to keep mosquitos away were questioned for hours by officials trying to determine if the smudge pots were the cause of the explosions. Figuring that the pots were too far away to have been the cause, the incident was initially designated as an accident. 

But all of these "accidents" started to fit a pattern. Count Johann Von Bernstorff was a longtime German diplomat, and was appointed as German Ambassador to the United States in 1908. Raised in London, Von Bernstorff spoke fluent English and was married to Jeanne Luckemeyer, an American raised in French private schools. Days after Franz Ferdinand was killed, Von Bernstorff was recalled to Berlin and inducted into the German intelligence service. He returned with $150 million from the German government to spend on his disruption/terror campaign. 

Why didn't Wilson raise hell? 1916 was an election year, and his campaign slogan for crying out loud was "He Kept Us Out Of War." You can't go to war if your whole campaign is "He Kept Us Out Of War." In March 1916 a German U-Boat torpedoed the French passenger steamer Sussex in the English Channel, apparently thinking that it was a British ship laying underwater mines, killing 50. On April 19, 1916 Wilson addressed Congress, saying that if Germany didn't immediately stop unrestricted submarine warfare, the United States would sever diplomatic relations. U.S. Ambassador to Germany James W. Gerard spoke to Kaiser Wilhelm on May 1 to complain about Germany's penchant for treating any ship around Great Britain as fair game. Kaiser Wilhelm complained about the United States supplying Germany's enemies with munitions. In the end Kaiser Wilhelm didn't want to risk adding the United States to Germany's list of official enemies and three days later, and six months before the election, the United States and Germany agreed to the Sussex Pledge, in which Germany agreed to stop the unrestricted submarine warfare. War was averted, for now, but Gerard was skeptical that the Germans would hold up their end of the Sussex Pledge, writing a letter to the State Department that Germany would resume unrestricted submarine warfare by Fall 1916 at the earliest, and January/February 1917 at the latest.

In April 1916 the United States indicted Von Papen and Von Rintelen for their involvement in a plot to blow up Canada's Welland Canal, a major shipping lane near Niagara Falls. Assistant US District Attorney Roger B. Wood noted that it was a break in precedent to indict a foreign diplomat but said:

I suppose he was immune so long as he was military attaché, but he is not the military attaché now. We are breaking a precedent, no doubt, for I do not know of any similar instance where a man in Von Papen's position has been indicted in this country. However, I do not see where there is any reason why he should be protected after he ceases to hold the position that made him immune from arrest.

The charges against Von Papen were dropped when he became Chancellor of Germany in 1932. He was forced to resign a year later in favor of Adolf Hitler. 

Out of about 18 million votes cast in the 1916 election, which was basically a referendum on the neutrality of the United States, Wilson won by about 600,000 votes - a 50.01-46.78 popular vote margin. The Electoral College count was 277-254, the 5th-narrowest Electoral College margin in US history. 

Michael Kristoff, a 23-year old Slovak immigrant with relatives in nearby Bayonne, New Jersey was suspected in the Black Tom Island explosion, with documentation that he set the initial fires for $500 along with two Germans - Lothat Witzke and Kurt Jahnke. Kristoff died in a Staten Island hospital in 1928. 

Theodore Wozniak went to work on January 11, 1917 at the Canadian Car & Foundry plant at the edge of the Meadowlands in Kingsland, New Jersey cleaning empty artillery shells using gasoline-soaked rags. This was his job. When a fire broke out among a pile of rags next to Wozniak, he tried to put it out using a clear liquid. Wozniak's boss found this suspicious - company policy was to put out fires with buckets of sand. The fire spread, thanks to the liquid and high winds. Soon the entire plant was engulfed in flames, the home of stockpiles of dynamite, TNT, and about half a million artillery shells. When the factory exploded, the ground shook from Yonkers to Staten Island. You could see the black cloud in midtown Manhattan. Wozniak also had a second job, getting paid $40/week from Frederick Hinsch, a German spymaster with a network of spies and saboteurs along the East Coast. Amazingly, no one out of the 1,400 people working at the plant that day was killed. Many literally slid up the frozen Hackensack River to safety in Secaucus.  

President Wilson's chief aide sent him a memo, warning him of an impending German offensive, "Mr. President, you have to worry that bridges are going to be blown up, skyscrapers are going to be attacked, and the New York City subways are going to be filled with 'germs.'"

German Foreign Minister Arthur Zimmermann sent a telegram to Heinrich Von Eckhardt, Germany's Minister to Mexico. The telegram told Von Eckhardt to offer the territory the United States gained in the Mexican-American War (which was shady as all get out) in exchange for helping Germany in World War 1. The Zimmermann Telegram was intercepted by the British and released on March 1, 1917. Four days later Woodrow Wilson was inaugurated for his 2nd term as president. It would have been three days later, but March 4 - Inauguration Day for presidents prior to the ratification of the 25th Amendment, was on a Sunday, so Wilson was privately sworn in by Chief Justice Edward White and his public inauguration was the day after. When Gerard's prediction proved correct - Germany announced the resumption of unrestricted submarine warfare on January 31, 1917 - combined with the emergence of the Zimmermann Telegram, Wilson could no longer justify keeping America out of war. 

Days after the United States declared war on Germany, yet another unexplained fire destroyed the Hercules Powder Company in Eddystone, Pennsylvania, killing over one hundred workers - most of them women and children. Theodore Wozniak, seemingly responsible for the fire in Kingsland, was working as a grocery store clerk in Manhattan's Lower East Side when he was arrested in 1942. The German government never claimed responsibility for any of the reportedly 43 attacks on American factories between 1915-1917. Why did the attacks essentially end in 1917? The U.S. had declared war in April by June Congress passed the Espionage Act, a sweeping "re-adjustment" of civil liberties in wartime, but did give legal basis to deport German agents and agitators. 

In 1921 Werner Horn - the lone ranger of the Vanceboro bridge plot - who had been sentenced to ten years in a New Brunswick prison, was deported to Germany. Classified as "insane," he actually was in the advanced stages of syphilis. That same year the Lehigh Valley Railroad - owners of Black Tom Island - brought charges of sabotage against the German government under the 1921 Treaty of Berlin. In 1939 the German-American Mixed Claims Commission ruled that Germany was, in fact, responsible for the sabotage at Black Tom Island and was ordered to pay $50 million in restitution. Of course, Hitler was just about to invade Poland, so that was the least of his concerns.

Johann Von Bernstorff died in exile in Geneva in 1939. By 1940, Franz Von Rintelen had rescinded his allegiance to the Nazi regime in order to help Great Britain, but admitted in an interview with the New York Times to having a network of 3,000 agents working for him in the United States during World War 1. In 1953 Germany agreed to pay $50 million to the United States and made its last payment in 1979.

Despite a long list of various accidents and explosions, the Black Tom Island explosion is considered to be the first terrorist attack on U.S. soil, one of the largest non-nuclear explosions to have ever occurred.

This Whole Big 25th Amendment Deal Type Thing

A few days ago Speaker of the House Nancy Pelosi announced that she was pursuing legislation that would allow Congress to intervene in the invocation of the 25th Amendment. This, she said, was not about removing President Trump (the election is 22 days away at the time of writing) but about giving Congress greater oversight of the White House. 

Regardless of the intention, let's talk about the 25th Amendment. 

By the time the 25th Amendment was approved by Congress in 1965 and ratified by the states two years later, eight presidents had passed away while in office, starting with William Henry Harrison in 1841. John Tyler assumed the presidency among much consternation from Congress including his own party who referred to Tyler as "His Accidency," and his own cabinet called him "Vice President Acting President," which is just a devastating level of disrespect. Tyler's succession set the precedent for the Vice Presidents of Zachary Taylor (ate too much fruit and milk), Abraham Lincoln (assassinated), James Garfield (assassinated), William McKinley (assassinated), Warren G. Harding (stroke), Franklin D. Roosevelt (brain hemorrhage), and John F. Kennedy (assassinated). 

But that line of succession didn't really cover what would happen if the President was alive, but incapacitated through illness or mental acuity, temporarily or permanently. James Garfield was in a coma for 80 days in 1881 before passing away from the effects of his assassin's bullet. Vice President Chester A. Arthur just sort of waited and tried to make it seem like he hadn't just stepped in as president. The line of succession also didn't account for what would happen if the President was unfit to serve but didn't want to relinquish power. That's what Congress started to debate in 1965.

The Presidential Succession Act of 1792 put the line of succession as such: Vice President - Senate president pro tempore (not the Senate Majority Leader) - Speaker of the House of Representatives. In 1886, five years after the assassination of James Garfield, Congress replaced the two congressional officials with cabinet officers, in the order of the date of creation of the individual agencies. No Senate President Pro Tempore had ever been president, members of Congress argued, but six Secretaries of State had been president.

The first real non-assassination/non-death Presidential succession crisis came in 1919 with Woodrow Wilson. 1919 came at the end of World War I but right in the middle of the global Spanish Flu pandemic (which started in Kansas). Wilson and his administration (and, to be fair/critical, so did most nations) straight up censored any talk of the flu epidemic that would end up killing between 50 and 100 million people worldwide. The 1918 Sedition Act basically made it illegal to criticize the government or the military, or say things to weaken the United States' position. Printing that x-number of soldiers were dying because of flu fell under that law. The censorship, both government-imposed and self-censorship, allowed the flu to spread more rapidly around the country and the rest of the world thanks to troop movements as well as countries at war not wanting to let their enemies know their weaknesses. Toxic masculinity, amirite? Historian/Author Carol R. Byerly:

[German General Erich] Ludendorff is famous for observing (flu outbreaks among soldiers) and saying, oh my God this is the end of the war. His soldiers are getting influenza and he doesn't want anybody to know, because then the French could attack him.

Anyway, I had taught for years that Woodrow Wilson died of a stroke. Verdict? MODERATELY TRUE. Wilson caught the Kansas Spanish Flu while negotiating the Treaty of Versailles in April 1919. His doctor told the press Wilson caught a cold from the spring rains in Paris. The Associated Press explicitly said it wasn't Spanish Flu. Wilson couldn't sit up, endured long bouts of violent coughing, and posted a 103-degree fever. Wilson was disoriented, certain that he was surrounded by French spies. Chief Usher Irwin Hoover:

We could but surmise that something queer was happening in his mind. One thing was certain: [Wilson] was never the same after this little spell of sickness. 

In November 1919 he suffered a stroke that left him paralyzed on his left side and partially blind. One year later was the presidential election. Rather than capitulate to the growing growls in the Senate by the Obstructionists over Wilson's League of Nations (led by Henry Cabot Lodge) Wilson's wife, Edith, (and Dr. Cary Grayson) hid Wilson's debilitating condition from the press and other members of Congress. Why? In part because there wasn't any real clear guidance on what happens if the President is alive, but cannot actually do his job. So Edith Wilson essentially was President. Senator Albert Fall - who would go on to have his own issues to deal with - blasted the Edith Wilson presidency as "a petticoat government." Nevertheless, Edith Wilson ran the Wilson Administration until March 1921.

When the 20th Amendment was ratified in 1933, it did two things: (1) to move inauguration day from March 4 to January to avoid a couple of extra months of a lame duck presidency, and also to hammer down that the Vice President takes over in the event that the President cannot fulfill his duties. Furthermore, Congress will pick the President if the President and Vice President cannot fulfill their duties.

Politics are personal, and personalities can drive politicians to create new policies. For instance, when Franklin Roosevelt passed away in 1945, VP Harry Truman was having a bourbon in Speaker of the House Sam Rayburn's office when he found out he was now president. With no Vice President in place, Senate president pro tempore Kenneth McKellar became Presiding Officer of the Senate. (Side note: McKellar represented Tennessee in Congress from 1917 - the first directly-elected Senator from Tennessee - until he lost a bid for a 7th term to Al Gore, Sr.). McKellar and Truman weren't exactly buddies. Truman lobbied to make the Speaker of the House - his buddy Rayburn - next in line over McKellar. In 1947, it worked.

In 1955 President Dwight D. Eisenhower had a heart attack in Denver. Continued heart issues as well as a mild stroke drove Eisenhower to write a letter to Vice President Richard Nixon instructing him on what to do should Eisenhower become incapacitated, giving Nixon the power to determine if Eisenhower could not fulfill the duties of the office of the President. You can't have some James Garfield situation in the middle of the Cold War where no one knows who is really president. Driven by fears over the ongoing Cold War with the Soviet Union as well as Eisenhower's health issues, Congress started to formulate ideas to clear up the line of succession after a proposal from the American Bar Association was put before Congress. Senator Estes Kefauver (D-TN) took up the cause of this issue, but he himself died in August 1963 after suffering a heart attack on the Senate floor.

There were questions on November 22, 1963 as to whether or not Vice President Lyndon B. Johnson, riding two cars behind, was killed or injured in the assassination of President John F. Kennedy. Thanks to 170 years of shifting lines of succession, Congress had no real idea who would become president if both the president and vice president were unable, for whatever reason, to carry out the duties of the office. New York Times columnist James Reston:

Has the Congress prepared the presidency adequately for the possibilities of a violent age? Is the rule of presidential succession satisfactory for these days of human madness and scientific destruction?

Johnson had his own health issues, while Speaker of the House John McCormick was 71 years old and Senate president pro tempore Carl Hayden was 86. And so in January 1965 the Bayh-Cellar Resolutions in the House and Senate were brought forth recommending an amendment to the Constitution to clear the issue up. Congress debated points of both sweeping changes and semantics, focusing particularly on what was meant by an "inability" to carry out the duties of the office of the president, as well as wondering if they were creating a precedent where Congress could just decide to remove a sitting president. On July 6, 1965 the 25th Amendment was passed by Congress and sent to the states for ratification, which cleared the 75% mark in 1967. 

There are four clauses to the 25th Amendment:

Section 1: If the president dies or resigns, the Vice President takes over. 

Section 2: In the event that there is no Vice President (because he/she has ascended to the presidency), a majority vote in Congress appoints a Vice President.

Section 3: If the president tells the Senate president pro tempore and the Speaker of the House that he is unable to perform his presidential duties, the vice president become acting president until the original president notifies them in writing. The VP/acting president is not sworn in because the president keeps his designation and the right to return to office. 

This was invoked in 1973 when Vice President Spiro Agnew resigned after a bribery scandal came to light. Nixon had joked that Agnew was his own impeachment defense, since no one would impeach Nixon if it meant that Agnew would become president. Agnew worked a plea deal with federal prosecutors in which he would plead no contest to federal charges in exchange for paying $160,000 in back taxes (thanks to a loan from Frank Sinatra) and a $10,000 fine. Agnew resigned, paving the way for Nixon to appoint - with Congressional approval - House Republican leader Gerald Ford as his new Vice President. Ford would invoke Section 3 nine months later when Nixon resigned over the Watergate scandal, and made Nelson Rockefeller his vice president.

Section 4 is where it gets sticky: The Vice President and a majority of "a body of Congress" can declare in writing to the Senate president pro tempore and the Speaker of the House that the president cannot perform the duties of the office, and the vice president immediately becomes acting president. The president, then, can offer a written declaration to the contrary and resume the office...unless within four days the VP and a majority body of Congress declares in writing again that the president cannot perform his duties, upon which Congress will vote on it. Back to the Congressional debates of 1965, Virginia Representative Richard Poff said Section 4 should be invoked when the president was simply "unable or unwilling to make any rational decision." The American Bar Association's John D. Feerick, who suggested the 25th Amendment, wrote that "unpopularity, incompetence, impeachable conduct, poor judgment, and laziness did not constitute an 'inability'" within the framework of the Amendment. 

Section 4 has never been invoked, although the Reagan Administration came close on a couple of occasions. On March 30, 1981, less than three months after taking office, John Hinckley, Jr. shot President Reagan in an effort to - I kid you not - impress actress Jodie Foster. While Reagan was undergoing surgery, his administration prepared the paperwork to name VP George H.W. Bush president. The papers were never signed, against the advice of some members of Reagan's administration, members of Congress, and even Reagan's doctor. Stephen Knott, a professor of national security at the United States Naval War College, said that Reagan "came closer to dying than we were lead to believe at the time," and he thought the 25th Amendment should have been invoked in that instance, but they didn't "out of fear of upsetting the public, the markets, along with allies and adversaries."

Reagan White House Director of Communications David Gergen, on not signing the paperwork to invoke the 25th Amendment:

There is a very great reluctance to move on the Twenty-Fifth. Everyone is hesitant because in effect you are expressing less than full confidence in your chief executive. There is an overwhelming urge to convey a serene view to the world, and I think everybody in the room wanted to say, 'Hey, unless we are forced, we don't deal with that.

In 1987, as Reagan was dealing with the fallout from the Iran-Contra Affair, his staff complained that Reagan was acting "inattentive and inept" and raised the possibility of invoking Section 4 of the 25th Amendment. In Landslide: The Unmaking of the President, 1984-1988 journalists Jane Meyer and Doyle McManus reported from inside the White House:

[White House staff] told stories about how inattentive and inept the president was. He was lazy; he wasn't interested in the job. They said he wouldn't read the papers they gave him - even short position papers and documents. They said he wouldn't come over to work - all he wanted to do was to watch movies and television at the residence. 

Reagan's new Chief of Staff - Howard Baker, Jr. - hadn't been on the job very long when he asked how the White House was running after Iran-Contra and got this report back. Baker began to observe Reagan's behavior to see if it lined up with what he heard. Baker disagreed with the remarks on Reagan, and didn't pursue Section 4 action. 

The 25th Amendment exists to protect the democratically-elected president and, like the impeachment process, the difficulty of unseating a president is the point. But Congress' role in the 25th Amendment has been A Thing all the way back to 1792.