Another clerk-related first happened in 1962, when Justice Bryon White was appointed to the Supreme Court. It was the first time that a person who had previously served as a clerk on the Supreme Court became a Justice of that same court.29 Of course, that has happened several times since then. Chief Justice Rehnquist clerked for Justice Robert Jackson. Justice Stevens clerked for Justice Wiley Rutledge. And Justice Stephen Breyer clerked for Justice Arthur Goldberg.30 But perhaps the culmination of this trend came with Chief Justice John Roberts. He was the first Supreme Court Justice to take the seat of a Justice for whom he had clerked, Chief Justice William Rehnquist.
Portrait of Belva Lockwood, circa 1880. (Photograph Credit 12.2)
NOT ALL OUR IMPORTANT firsts have been about Justices and law clerks. Belva Lockwood was a widow and a young mother who moved to Washington, D.C., at the end of the Civil War. She was also a lawyer, and her work supported her family. When she applied for admission to the bar of the Supreme Court in 1876, her application was denied with the following statement: “By the uniform practice of this court, from its organization to the present time, and by the fair construction of its rules, none but men are admitted to practice before it as attorneys and counselors.… The court does not feel called upon to make a change, until such a change is required by statute.”31
Another person might have taken that denial as a rejection. Belva Lockwood chose to take it as advice. She lobbied Congress relentlessly to pass that statute, and she succeeded. Three years after the Supreme Court refused to allow women to practice in its hallowed halls, President Rutherford B. Hayes signed a bill into law that allowed women to practice before any federal court. On March 3, 1879, Belva Lockwood became the first woman admitted to practice before the Supreme Court.32 Shortly thereafter, she made history a second time when she represented Caroline Kaiser in Kaiser v. Stickney, and became the first woman to argue before the Supreme Court.33
RELIGIOUS DIVERSITY WAS ALSO a long time coming to the Court. At first, all of the Justices were Protestants. The first Catholic was appointed to the Supreme Court in 1836—it was Chief Justice Roger Brooke Taney. Historians have found no evidence that Taney’s Catholicism was a factor to President Andrew Jackson, who nominated him. The most important thing to Jackson was that Taney was a loyal Jacksonian. And although there was some criticism in the media of Taney’s Catholicism, those who were opposed to his nomination seem to have been more concerned about Taney’s support for Jackson than his faith.34 The second Catholic wasn’t appointed until almost sixty years later, but since then there has always been at least one Catholic on the Supreme Court.35 Indeed, today there are six, another first.
Associate Justice Louis D. Brandeis. (Photograph Credit 12.3)
It was not until 1916 that the Court had its first Jewish Justice, Louis Brandeis. Anti-Semitism was a force in American politics at the time, but there are different accounts about how much that had to do with the very heated opposition to Brandeis’s nomination. Brandeis was well known as the “People’s Lawyer.” He was a strong critic of big business, and a strong defender of Congress’s constitutional power to pass socioeconomic legislation, which was a hotly contested issue at the time. Brandeis’s confirmation hearings were long and heated—though Brandeis followed them from afar. He did not attend, because it did not become customary for a nominee to attend his own confirmation hearings until Felix Frankfurter did so twenty-three years later.36
A FEW YEARS AFTER Frankfurter left the Court, the Court received its first African American Justice—the remarkable Thurgood Marshall. Justice Marshall was an important figure long before he was on the Court, of course, because he helped litigate cases like Brown v. Board of Education, and bring an end to de jure segregation in this country. But he also had a tremendous influence on the Court because of the special perspective he brought with him. His was the eye of a lawyer who saw the deepest wounds in the social fabric, and who used the law to help heal them. And he brought the things he had seen, the world as he knew it, into our oral arguments and conference meetings. He knew as well as anyone that, as Justice Frankfurter once wrote, the Court “should not be ignorant as judge of what we know as men.”37
I asked him once how he managed to avoid becoming despondent from the injustices he saw. Instead of responding directly, he told me about the time he and his mentor, Charles Hamilton Houston, the vice dean at Howard University School of Law, traveled to Loudoun County, Virginia, to help a man on trial for his life. George Crawford had been indicted by an all-white grand jury of murdering a white woman from a well-to-do Virginia family, as well as her white maid. Despite their defense challenge to the exclusion of African Americans from the jury, Crawford was convicted of murder by an all-white jury and sentenced to life. “You know something is wrong with the government’s case,” Justice Marshall told me, “when a Negro only gets life for murdering a white woman.”
After the trial, Justice Marshall said, the media asked if Crawford planned an appeal based on the exclusion of African Americans from the jury. “Crawford asked, ‘Mr. Houston, I got life this time and if I have another trial, could they kill me the next time?’ Charlie Houston told him yes. So Crawford told Charlie: ‘Tell them the defendant rests.’
“I still have mixed feelings about that case,” Justice Marshall added. “I just don’t believe that guy got a fair shake. But what are you going to do?” he asked. “There are only two choices in life: stop and go on. You tell me, what would you pick?” Thurgood taught us all that you go on, but that you cannot forget. You must learn from what you have seen and bring that knowledge to your practice of law and your practice as a judge. We will always be grateful for that example.
ANOTHER SUPREME COURT FIRST came in 1962, when Justice Byron White was nominated to the Supreme Court: He was the first Supreme Court Justice to ever lead the NFL in rushing in a rookie season. And I can safely predict that he will be the last. White, of course, was a marvelous athlete, and he is also responsible for another important first—he was the first Justice that we know to have played basketball on the Highest Court of the Land, which, as I mentioned earlier, is what we call the basketball court just above the courtroom in the Supreme Court building.
But White was not the first Supreme Court Justice to have been a professional athlete. That honor goes to the Justice who hired Byron White as a law clerk: Chief Justice Frederick Moore Vinson. Fred Vinson was a good baseball player. He once said—and he was apparently only half-joking—that the reason he did not more actively seek to play in the major leagues was that he could not get along with umpires.38 Maybe he became a Chief Justice by following that old saying “If you can’t beat ’em, join ’em.” In any case, Vinson did actually try out for the majors, although he kept it a secret for a long time—whether because he was a flop or because his mother hated the idea of him playing professional baseball, we will never know.39
Chief Justice Rehnquist and Justices O’Connor, Brennan, and White at Independence Hall, Philadelphia. (Photograph Credit 12.4)
Even though Vinson never made it to the big leagues, he did play semiprofessional ball—earning twenty-five dollars a game (fifty for double-headers!) while he was in college, playing for any little minor-league team that would hire him.40 His baseball skills also turned out to be handy even after he became a lawyer. During the first few years of his practice, when business was slow, he would earn some money on the side as a freelance baseball player. Budding lawyers should keep this lesson from Chief Justice Vinson in mind: diversify, diversify, diversify.
WE CAN LEARN A LOT from Supreme Court Firsts. And I am honored to have had the opportunity to be one of them.
APPENDIX A
The Declaration of Independence of the United States of America
This volume includes a copy of the Constitution of the United States because, ultimately, any collection of stories about the Supreme Court is a collection of stories about our Constitution. As our great Chief Justice John Marshall said: “We must never
forget that it is a Constitution we are expounding.” I carry a copy in my purse wherever I go. I am also including a copy of the Declaration of Independence because we need to remember that the story of our Constitution began with the brave decision of our Framers to reject government by a distant monarchy and to begin an experiment in securing life, liberty, and the pursuit of happiness through a constitutional democracy—a decision that continues to guide us today. The legacy of these documents is reflected in the experiences of the men and women who have served on the Supreme Court, but in the end, these texts remain the foundation for the stories of all of us who are Americans.
IN CONGRESS, JULY 4, 1776
The unanimous Declaration of the thirteen united States of America
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume, among the Powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,—That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.—Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.
He has refused his Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws of Naturalization of Foreigners; refusing to pass others to encourage their migration hither, and raising the conditions of new Appropriations of Lands.
He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary Powers.
He has made judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our People, and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the Civil Power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended legislation: For quartering large bodies of armed troops among us: For protecting them, by a mock Trial, from Punishment for any Murders which they should commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the world:
For imposing taxes on us without our Consent:
For depriving us, in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences:
For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:
For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us.
He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy of the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.
In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.
Nor have We been wanting in attention to our Brittish brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.
We, therefore, the Representatives of the United States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by the Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain,
is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the Protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.
Button Gwinnett
Lyman Hall
George Walton
William Hooper
Joseph Hewes
John Penn
Edward Rutledge
Thomas Heyward, Jr.
Thomas Lynch, Jr.
Arthur Middleton
John Hancock
Samuel Chase
William Paca
Thomas Stone
Charles Carroll of
Carrollton
George Wythe
Richard Henry Lee
Thomas Jefferson
Benjamin Harrison
Thomas Nelson, Jr.
Francis Lightfoot Lee
Carter Braxton
Robert Morris
Benjamin Rush
Benjamin Franklin
John Morton
George Clymer
James Smith
George Taylor
James Wilson
George Ross
Caesar Rodney
George Read
Thomas McKean
William Floyd
Philip Livingston
Francis Lewis
Lewis Morris
Richard Stockton
John Witherspoon
Francis Hopkinson
John Hart
Abraham Clark
Out of Order Page 15