Chief Justice Roger B. Taney administering the oath of office to Abraham Lincoln in 1861. (Photograph Credit 2.3)
Chief Justice Taney died in 1864. The selection of a replacement as Chief Justice was challenging for Lincoln. He ultimately selected Samuel Chase, who had run against Lincoln for the presidency and continued to have political ambitions. Chase’s nomination was promptly confirmed, eliminating one of Lincoln’s political rivals, but giving the country one of its more distinguished Chief Justices. Indeed, when Lincoln’s successor, Andrew Johnson, was impeached by the House and tried by the Senate as a result of political fissures in the wake of the Civil War, Chief Justice Chase skillfully presided over the impeachment trial. In the end, the Senate vote was only one short of convicting Johnson.
For the remainder of the nineteenth century, few if any Supreme Court nominations or nominees would prove worthy of an important place in American history textbooks, with the lone exception of John Marshall Harlan of Kentucky. Named for the great Chief Justice, Harlan was nominated by President Rutherford B. Hayes and served thirty-four years. He distinguished himself on the Supreme Court as “the Great Dissenter,” issuing solo dissents from the Court’s majority in two of the most critical cases of his tenure. In 1883, he authored a strident dissenting opinion in the Civil Rights Cases, which held that federal civil rights legislation enacted in the wake of the Civil War was unconstitutional. And in 1896, Harlan was the lone dissenter in Plessy v. Ferguson, which upheld the old doctrine of “separate but equal” that allowed racial segregation in public schools and facilities. Harlan famously wrote: “Our Constitution is color-blind and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.” Those words would be proven right when Plessy was overruled by Brown v. Board of Education more than forty years after Harlan’s death.
The next nominations of note belonged to President Theodore Roosevelt, who succeeded to the presidency in 1901 when President William McKinley died in office. President Roosevelt wrote: “I should hold myself as guilty of an irreparable wrong to the nation if I should put [on the Court] any man who was not absolutely sane and sound on the great national policies for which we stand in public life.”6 Roosevelt considered geographic origins unimportant. He made three appointments: Oliver Wendell Holmes Jr., William H. Moody, and William R. Day.
Chief Justice William Howard Taft, circa 1920s. (Photograph Credit 2.4)
Holmes, discussed further in Larger-Than-Life Justices, is consistently ranked as one of our country’s great Justices. Suffice it to say here that he did not confuse constitutionality with wisdom. He said that “when the people … want to do something that I can’t find anything in the Constitution expressly forbidding them to do, I say, whether I like it or not, ‘Goddamit, let ’em do it.’ ”7
William Howard Taft, a Roosevelt protégé who succeeded Roosevelt as President, was able to appoint five Justices and elevate another to Chief Justice during his single four-year term. Taft chose his appointees with great care, based on intellect and judicial experience. He chose Horace H. Lurton, a professor at Vanderbilt Law School and judge on the U.S. Court of Appeals for the Sixth Circuit, and then Charles Evans Hughes, governor of New York. Lurton’s appointment surprised some observers because he was a Democrat. Soon after, Chief Justice Melville Fuller died and Taft had that position to fill. He had indicated to Hughes in a letter that he would consider appointing Hughes as Chief Justice if it became vacant. After waiting over six months, Taft finally nominated Justice Edward Douglas White as Chief Justice. In making that appointment, Taft let it be known that “there is nothing I would have loved more than being Chief Justice of the United States. I cannot help seeing the irony in the fact that I, who desire that office so much, should now be signing the commission of another man.”8
Taft also appointed Willis Van Devanter of Wyoming, who was a judge on the Eighth Circuit, and Joseph Rucker Lamar of Georgia, who had once served on the Georgia Supreme Court. His final appointment was that of Mahlon Pitney, a former New Jersey congressman and judge.
In 1912, President Taft failed to win reelection. His successor, Woodrow Wilson, served eight years. He made three appointments to the Court: Louis D. Brandeis, John H. Clarke, and James C. McReynolds.
There is an irony in two of these appointments. Justice Louis Brandeis was the first Jewish Justice of the Supreme Court, and—with Justice Holmes—would distinguish himself as one of the great Justices and legal minds of his generation. Justice James McReynolds, on the other hand, would distinguish himself as a notorious racist, and he infamously refused even to speak to Justice Brandeis (and later, Justice Benjamin Cardozo, appointed by President Hoover) because of his anti-Semitism. He was a very disagreeable member of the Court and is poorly regarded to this day. He, too, is discussed later in this book.
Justice Brandeis’s nomination resulted in substantial opposition; he was known as “the People’s Lawyer” and his detractors described him as a radical, anticorporate crusader for social justice who lacked a judicial temperament. Nonetheless, Brandeis was eventually confirmed by a vote of 47 to 22, and served with distinction.
Warren G. Harding became President after Wilson, and former President Taft got his wish. Although Harding died in office after only two and a half years, he appointed four people to the Court, including Taft as Chief Justice, the position Taft had wanted above all others. Harding’s other appointments to the Court were George Sutherland, Edward T. Sanford, and Pierce Butler.
Taft was elated with his elevation to Chief Justice. He worked exceedingly hard on the Court, writing about 20 percent of all the opinions, persuading Congress to build a Supreme Court building, and coordinating the federal courts. Taft served nine effective years before he died in 1930.
President Calvin “Silent Cal” Coolidge succeeded Harding. The Coolidge campaign slogan was “The business of the United States is business.” It did not, however, include much work with the Supreme Court. President Coolidge appointed only one Justice, his Attorney General, Harlan Fiske Stone of New Hampshire. When Stone’s nomination drew some Senate criticism, he became the first Court nominee to appear in person before the Senate Judiciary Committee, where he responded exceedingly well to the questions and was easily confirmed. He proved to be very independent as an Associate Justice and often joined the dissenters, Holmes and Brandeis. Stone was eventually made Chief Justice by Franklin Delano Roosevelt.
President Coolidge was succeeded by President Herbert Hoover, another Republican. Although Hoover’s presidency was saddled by the stock market crash of 1929 and the Great Depression, he nominated three impressive Justices: Charles Evans Hughes as Chief Justice to succeed the terminally ill Chief Justice Taft, and Benjamin Cardozo and Owen J. Roberts as Associate Justices. He had nominated John J. Parker for Associate Justice but Parker was rejected by a narrow margin.
The Cardozo nomination was made on the retirement of Oliver Wendell Holmes. Cardozo was considered a liberal. He was strongly supported by the entire law school faculty of the University of Chicago and by the law school deans of Harvard, Yale, and Columbia, as well as powerful Senate Foreign Relations Committee chair William Borah. It was Justice Cardozo who authored the significant opinion for the Court in Palko v. Connecticut.9 That opinion clarified that the Due Process Clause of the Constitution protects only those rights that are “of the very essence of a scheme of ordered liberty” and held that the Court should therefore gradually apply portions of the Bill of Rights to the states, not just to the federal government.
Franklin Roosevelt, who succeeded Coolidge, served as President from 1933 to 1945, an unprecedented length of time that, of course, includes most of the Great Depression and World War II. He made nine nominations, second only to George Washington, and he left a lasting impact on the Court.
During Roosevelt’s first term as President, a majority of the Supreme Court found a number of his New Deal laws unconstitutional. As mentioned earlier,
Roosevelt was so disturbed by the Court’s actions that he sent to Congress a proposed bill that would give the President authority to appoint an additional Justice, up to a maximum of six, for every sitting member of the Court over the age of seventy. It would have allowed the Supreme Court to increase from nine to fifteen Justices.
The President’s arguments about the Supreme Court were disingenuous at best. He claimed the Court was overworked and that the Justices were physically incapable of doing their work. These claims were easily refuted. The Court was demonstrably up to date with its docket. Many lawyers and academics opposed the bill and it was defeated.
Perhaps also contributing to its defeat was the so-called “switch in time that saved nine.” In a 1937 case, West Coast Hotel Co. v. Parrish,10 Justice Owen Roberts unexpectedly voted with Chief Justice Hughes and Justices Brandeis, Cardozo, and Stone to uphold a state minimum wage law. Many commentators regarded Roberts’s vote as a sudden and calculated maneuver to thwart the pending court-packing plan.
In addition, Justice Van Devanter decided to retire, which gave President Roosevelt his first Court appointment, that of Senator Hugo Black of Alabama. His other eight nominations were Stanley F. Reed, Felix Frankfurter, William O. Douglas, Frank Murphy, James F. Byrnes, Robert Jackson, Wiley Rutledge, and the elevation of Justice Harlan F. Stone to Chief Justice.
It was an entirely new Court. President Roosevelt sought assurance that judicial nominees would be loyal to his New Deal principles, libertarian in outlook, and supportive of his wartime aims. In all of that he succeeded. The Court met President Roosevelt’s expectations.
On April 12, 1945, First Lady Eleanor Roosevelt told Vice President Harry Truman that her husband had passed away. Although Truman was surprised to be taking over as President, he himself surprised many Americans by becoming a strong and impressive leader. When he had opportunities to appoint Justices to the Court he selected in each instance men who were his friends. There were four appointees: Harold H. Burton, a former U.S. Senate colleague; Fred Vinson, secretary of the Treasury; Tom C. Clark, the U.S. Attorney General; and Sherman Minton, fellow former senator. Vinson had held several government posts under Roosevelt and served as a member of Congress. When Chief Justice Stone died suddenly in 1946, President Truman selected Fred Vinson as the new Chief Justice. He served, rather unhappily, for about seven years. Reportedly, the Court at the time was racked by infighting, and Vinson found himself a poor fit for leadership.
Truman’s friendship with his nominees did not help him much in the most important case of his tenure as President. He was greatly disappointed when a majority of the Court, including Justice Clark, held that the President’s seizure of the steel mills during the Korean War was unconstitutional.
Dwight David Eisenhower was elected President on the Republican ticket in 1952. A popular president, he was reelected and made five appointments to the Court during his two terms. His first was the selection of a Chief Justice after Vinson died in September 1953. Earl Warren was governor of California, having served as an attorney and a public prosecutor before being elected to that position. He was confirmed as Chief Justice unanimously.
Warren had a great impact on the Court. In 1954, the Supreme Court decided Brown v. Board of Education,11 vindicating Harlan’s dissent in Plessy v. Ferguson and declaring a legal end to separate public schools for black and white students. It is said that Warren’s leadership contributed to the unanimity of the opinion in Brown, which proved important in the acceptance of that historic decision. President Eisenhower deserves some credit as well: There was considerable opposition to the efforts of the lower federal courts to implement Brown, and although President Eisenhower was probably not among its enthusiastic supporters, to his credit, in September 1957 he sent federal troops to Little Rock, Arkansas, to enforce the decision and enable African American students to enter the public schools in the face of Governor Orval Faubus’s strenuous efforts to prevent it.
Several other important cases were decided during Chief Justice Warren’s tenure. One was Reynolds v. Simms,12 which applied the principle of “one person, one vote” to state legislative districts. Another significant decision during Chief Justice Warren’s tenure was Miranda v. Arizona,13 which famously required that criminal defendants in custody be advised of their right to consult with an attorney and of other legal rights prior to being questioned.
When Justice Robert Jackson died in 1954, President Eisenhower appointed John Marshall Harlan II of New York, the grandson of the first Justice John Marshall Harlan. The third appointee was a Democrat from the New Jersey Supreme Court, William J. Brennan Jr.
Sometime later President Eisenhower was reportedly asked by a biographer if he had made any mistakes as President. He said, “Yes, two, and they are both sitting on the Supreme Court.”14 He was referring to Chief Justice Warren and Justice Brennan—both of whom proved far more liberal than he had anticipated.
President Eisenhower’s fourth appointment to the Court was that of Charles Evans Whittaker of Missouri, made upon the retirement of Stanley Reed. Eisenhower’s fifth and last appointment was Potter Stewart of Ohio, who had been serving on the U.S. Court of Appeals for the Sixth Circuit.
During his brief term in office John F. Kennedy made two appointments to the Court: Byron R. White and Arthur J. Goldberg. They had both helped in his election campaign and the President knew them well. Byron White is notable as a true scholar athlete. He grew up in a small town in Colorado, worked in the fields and on a railroad, earned a Phi Beta Kappa key at the University of Colorado, and was an all-American football player. He played professional football for the Pittsburgh Steelers and later the Detroit Lions, and was a Rhodes Scholar. Like Kennedy, he had served in the navy as well. He was a very capable and independent Justice on the Court, and a wonderful colleague of mine, until his retirement in 1993.
Lyndon Johnson, who of course succeeded President Kennedy after Kennedy’s assassination in 1963, made four nominations to the Court, but succeeded with only two. The first was Abe Fortas, who was appointed after President Johnson persuaded Arthur Goldberg to retire from the Court to serve as ambassador to the United Nations. Fortas had helped Johnson as a lawyer as far back as seventeen years earlier in a very close Senate contest in Texas. Fortas served on the Court for four years.
In 1968, when Chief Justice Warren revealed his plans to retire, Johnson announced his intention to nominate Abe Fortas as Chief Justice and William Homer Thornberry for the Associate Justice position. The timing of all these announcements was unfortunate. After various disclosures of certain earnings of Abe Fortas and resulting negative press, Justice Fortas asked the President to withdraw his nomination as Chief Justice. Earl Warren remained as Chief Justice for another year, during which period Fortas made further financial disclosures. Fortas ultimately resigned from the Court.
In the meantime, Justice Tom Clark announced his retirement and President Johnson nominated Thurgood Marshall to be Clark’s replacement. Marshall would be the first African American to serve on the Court. President Johnson announced that the nomination was “the right thing to do, the right time to do it, the right man and the right place.”15 Marshall was best known for his work as chief counsel of the National Association for the Advancement of Colored People, in which role he successfully argued many civil rights cases in the Supreme Court, including Brown v. Board of Education.16 At the time of his nomination, Marshall was serving as President Johnson’s Solicitor General, representing the United States in litigation before the Supreme Court. Marshall was ultimately confirmed by the Senate by a vote of 69 to 11.
Richard Nixon took office in 1969 and appointed a total of four Supreme Court Justices: Warren Burger, Harry Blackmun, Lewis Powell, and William Rehnquist. All four were future colleagues of mine. Burger was the first in line. Then a judge on the U.S. Court of Appeals for the D.C. Circuit, Burger was appointed as Chief Justice in 1969 to replace Chief Justice Warren. Blackmun was nominated the following year and was c
onfirmed unanimously. Blackmun was a longtime friend of Burger; in fact, Burger had been Blackmun’s best man and had recommended him to fill the vacancy. In 1972, Powell and Rehnquist took their seats on the bench. President Nixon had nominated the two men on the same day—Powell, to replace Justice Black, and Rehnquist, to replace Justice Harlan. Powell, reluctant to leave private practice, had actually refused President Nixon’s request that he join the Court in 1969, but he was persuaded the second time around by the President and his Attorney General. Rehnquist had been working for the Nixon administration, heading the Office of Legal Counsel at the Justice Department. In 1986, he would be elevated to Chief Justice.
After Nixon’s resignation in 1974, Gerald Ford became President. Ford made just one appointment to the Supreme Court, John Paul Stevens in 1975. Justice Stevens, who had been serving on the U.S. Court of Appeals for the Seventh Circuit, sailed through the confirmation process. The Senate confirmed him unanimously. Interestingly, Stevens replaced the longest-serving Justice in the Court’s history, Justice Douglas, and went on to become the third-longest-serving Justice himself, with nearly thirty-five years on the Supreme Court bench.
Cartoon by Taylor Jones showing Justice O’Connor and the Reverend Jerry Falwell. (Photograph Credit 2.5)
My own nomination followed. President Ronald Reagan took office in January 1981. During his presidential campaign, Reagan had pledged to appoint the first woman to the Court and he soon got his chance when Justice Stewart announced his retirement. As the first female nominee for the position of Associate Justice, I was under an unrelenting media spotlight during my confirmation process. But I was confirmed unanimously by the Senate in September 1981 and went on to serve on the Court for the next twenty-five years.
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