Believing “[t]he society which is satisfied is lost,” as both governor of Massachusetts and president of the United States, Calvin Coolidge was an active and innovative administrator.¹

President Coolidge and Chief Justice Taft

As governor, Coolidge was tireless in promoting programs to help mothers and children and provide health care for the indigent. And he was certain his first duty was not to the taxpayers, the voters or the general citizenry. It was to the wards of the state. Thus he ferociously fought legislative attempts to reduce funding for the care of those with mental illness and children in state custody, innocents he called “too weak even to protest.”² He would write in his autobiography: “It is preeminently the province of government to protect the weak.”³

As the 30th president, the frugal Republican balanced budgets, slashed taxes, advocated for the civil rights of African Americans and women, and fought child labor.⁴ In 1928, he appointed the first woman to the federal bench, Judge Genevieve Cline.⁵ Coolidge was also swift and hands-on when dealing with crises and natural disasters, most notably the Great Mississippi River Flood of 1927 and the massive, deadly hurricane that slammed into Puerto Rico and Florida in 1928.⁶

Although quick to defend presidential prerogatives, Coolidge earned a reputation for integrity, humor and civility. He achieved this while saying little. He did say, “The words of the president have an enormous weight and ought not to be used indiscriminately.”⁷ “Silent Cal’s” silence was rooted in humility. He said, “It is a great advantage to a president, and a major source of safety to the country, for him to know he is not a great man.”⁸ Coolidge was also ready to forgive.

Forgiving Governance

Coolidge said of the pardon power: “There is an obligation to forgive but it does not extend to the unrepentant.”⁹ Over five and a half years in the White House, he frequently forgave: 1,691 grants of clemency, of which 773 were full pardons.¹⁰

The president sometimes exercised the power to save the cost of jailing the guilty who had served significant time and presented no danger. Often forgoing a complete pardon, he remitted or commuted sentences and occasionally issued unsought commutations.¹¹ Through commutation instead of pardon, Coolidge circumvented the principle that pardon had to be accepted to be effective. He was cunningly capable of doing this for purposes other than mercy or economy.¹²

In 1925, Coolidge commuted to time served the sentence of notorious gangster and jailhouse poet Gerald Chapman, known as “the Gentleman bandit.” The clemency allowed federal authorities to turn Chapman over to the state of Connecticut for trial and execution for the murder of a police officer committed during a brief escape from federal prison. Of course, Chapman asserted that the commutation was a form of pardon and ineffectual since it was refused. The federal court, however, held that there is no “right of incarceration” and the Supreme Court declined review.¹³ The Supreme Court subsequently rejected an acceptance requirement for commutations in 1927.¹⁴

Coolidge granted pardons for reasons of reconciliation and comprehensive justice too. In 1927, for example, he commuted to time served the prison sentence for mail fraud of Black civil rights activist Marcus Garvey. And he released the remaining World War I era Sedition Act violators convicted during Woodrow Wilson’s administration.¹⁵

Philip Grossman, Chicago liquor dealer

Judicial Humility

Perhaps President Coolidge’s most famous pardon, at least in legal circles, was his commutation of the criminal contempt of court conviction of Chicago liquor dealer Philip Grossman. The contempt citation was imposed for violation of a federal district court restraining order entered in furtherance of the Volstead Act that implemented Prohibition. He was fined $1,000 and sentenced to one-year imprisonment. The Court of Appeals for the Seventh Circuit affirmed the conviction.¹⁶

Grossman made two requests for a pardon to President Warren Harding. Both were denied. After Coolidge assumed the presidency on Harding’s sudden death in 1923, Grossman tried once again.¹⁷ In December 1923, Coolidge, a skilled lawyer who personally studied every application for clemency and doubted the wisdom of Prohibition, wrote across the bottom of Grossman’s renewed request: “I do not wish pardon. Fine should be paid and sentence commuted.”¹⁸ Grossman immediately paid the fine.¹⁹

Nonetheless, the district court judge and the U.S. attorney in Chicago felt that the president lacked such authority, denouncing it as a violation of separation of powers, contending the Constitution only grants the power to pardon “offenses against the United States.” They interpreted this constitutional clause as referring to federal criminal statutes alone.²⁰

It was further argued that the contempt power is an inherent power of courts indispensable to securing compliance with court orders. Therefore, it was reasoned that use of the pardon power in contempt proceedings would transfer judicial power to the president and undermine the judiciary’s ability to function.21 Hence, despite the clemency, Grossman remained incarcerated.²²

In December 1924, the Supreme Court granted a writ of habeas corpus. The attorney general himself, Harlan Fiske Stone, appeared for President Coolidge as amicus curiae (Coolidge would elevate Stone to the Supreme Court in 1925). In March 1925, Chief Justice William Howard Taft, wrote a unanimous opinion for the court. In an act of judicial humility, the decision accepted Stone’s position that the commutation was not a breach of separation of powers but, to the contrary, a valid exercise of checks and balances, a check upon the judicial branch.²³

After reviewing the broad scope of the pardon power back to early English common law and the deliberations of the Framers, the chief justice rejected the catalog of perils predicted by the lower court:

Our Constitution confers the discretion on the highest officer in the nation in confidence that he will not abuse it. An abuse in pardoning contempts would certainly embarrass courts, but it is questionable how much more it would lessen their effectiveness than a wholesale pardon of other offenses. If we could conjure up in our minds a President willing to paralyze courts by pardoning all criminal contempts, why not a President ordering a general jail delivery?²⁴

 

 

Attorney General Harlan Fiske Stone

 

Selfless Governance

In a subsequent decision, the Supreme Court upheld the president’s power to remove executive branch officials without Senate approval.25 Taft later observed, “I never wrote an opinion that I felt to be so important in its effect.”²⁶

And Coolidge helped the judicial branch. At the request of the chief justice, the president assisted in “suppressing” a bill that would limit federal judges’ leeway in charging juries.²⁷ Furthermore, he eloquently defended the Supreme Court and lower federal courts from calls of Progressives to restrict their power to declare acts of Congress unconstitutional.²⁸

Gerald Chapman, gangster

Coolidge, moreover, in close collaboration with Taft, won enactment of the landmark “Judges’ Bill”²⁹ in 1925. It gave the Supreme Court extensive discretion concerning cases accepted for review and made the entire federal judicial system more efficient and accessible to more litigants and new kinds of litigation.³⁰ These reforms would allow the politically powerless and unpopular, after failing to realize their goals through the political process, to more easily seek redress in federal court, most notably during the Warren Court.

The Constitution controls and channels ambition and animosity between the branches of government through carefully crafted checks and balances: the Madisonian system that seeks to guard against the evil in human nature. Yet there is good in human nature too, and when that prevails, governance is even better. The productive amity between President Coolidge and Chief Justice Taft demonstrates that branches can, instead of confrontation or “turf wars,” cooperate with personal and institutional selflessness and humility in serving the common good and the constitutional order, an order of which Coolidge observed: “To live under the American Constitution is the greatest political privilege that was ever accorded the human race.”³¹ |||

This article is dedicated to Judge Robert A. Lanier of Memphis, who, like Calvin Coolidge, is a skilled lawyer of immense integrity, selfless public service and love of the law and history. Also, no one understands the 1920s better than Judge Lanier.

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RUSSELL FOWLER is director of litigation and advocacy at Legal Aid of East Tennessee (LAET), and since 1999 he has been adjunct professor of political science at the University of Tennessee at Chattanooga. He served as the law clerk to Chancellor C. Neal Small in Memphis and earned his law degree at the University of Memphis in 1987. Fowler has written many publications on law and legal history.

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NOTES

1. Calvin Coolidge, The Price of Freedom: Speeches and Addresses 196 (1924).

2. See Michael Dukakis, “He Led with Integrity” in Why Coolidge Matters 73, 75-76 (2010).

3. Calvin Coolidge, The Autobiography of Calvin Coolidge 175 (1929).

4. See Russell Fowler, “Calvin Coolidge” in Encyclopedia of the Jazz Age 146, 147 (James Ciment ed., 2008).

5. Judge Cline was appointed to the U.S. Customs Court.

6. See Eliot Kleinberg, Black Cloud: The Great Florida Hurricane of 1928 53, 55, 131 (2003).

7. Coolidge, Autobiography at 195.

8. Id. at 173.

9. Calvin Coolidge, Have Faith in Massachusetts 247 (1919).

10. U.S. Dept. of Justice statistics found at www.justice.gov/pardon/clemency-statistics.

11. Edward S. Corwin, The President: Office and Powers 182-83 (5th rev. ed., 1984).

12. Corwin, supra at note 132 at 184.

13. Id. at 183.

14. Biddle v. Perovich, 274 U.S. 480 (1927).

15. Fowler, Jazz Age at 147.

16. Ex Parte Grossman, 267 U.S. 87, 107 (1925).

17. See Russell Fowler, “Calvin Coolidge and the Supreme Court” in Journal of Supreme Court History 271, 288, Vol.25, No. 3 (2000).

18. Alpheus T. Mason, Harlan Fiske Stone: Pillar of the Law note 100 at 167 (1956).

19. Id.

20. See U.S. v. Grossman, 1 F.2d 941 (N.D. Ill. May 15, 1924).

21. See Id.

22. Ex Parte Grossman, 267 U.S. 87, 107 (1925); Corwin, note 132 at 184.

23. Mason, supra note 100 at 167-68.

24. Ex Parte Grossman, supra note 139 at 121.

25. Myers v. U.S., 272 U.S. 52 (1926).

26. Mason, supra note 100 at 222.

27. Fowler, Journal of Supreme Court History at 276.

28. See Id at 282-84.

29. The Judiciary Act of 1925.

30. Fowler, Journal of Supreme Court History at 276.

31. Calvin Coolidge, Address at the White House, Dec. 12, 1924 in Silent Cal’s Almanac 49 (David Pietrusza ed. (2008).