Read this note first. These sketches were written for a casebook and the version we have stops at Justice Kagan. Four members of the Court that is deciding your cases — Gorsuch, Kavanaugh, Barrett and Jackson — are not in it, and several Justices shown here as living have since died or retired. The four Justices appointed since 2010 is the supplement that closes that gap; read the two together, and treat a date in either as something to check rather than something to cite.
A second caution, and it is the more important one. This text was recovered by optical character recognition from a scan. I corrected every error I could find — including one wrong reporter volume — but OCR fails silently, and the errors that survive proofreading are exactly the ones that look plausible: a digit in a citation, a year, a name. Do not quote this document, and do not cite it. Use it the way it was meant to be used: to get a feel for who these people were before you read what they wrote. When you need the fact, go to the Federal Judicial Center's directory, which is free, authoritative, and a work of the United States government.
The brief sketches that follow are designed to offer at least some sense of the background, persona, and intellectual style of the justices who have had the greatest impact on modern constitutional law. Because they are no substitute for serious biography, we have frequently suggested additional sources for further investigation. On less significant justices, see Currie, The Most Insignificant Justice: A Preliminary Inquiry, 50 U. Chi. L. Rev. 466 (1983); Easterbrook, The Most Insignificant Justice: Further Evidence, 50 U. Chi. L. Rev. 481 (1983).
Samuel A. Alito, Jr. (1950– )
The son of two school teachers (his father went on to become New Jersey’s first Director of the Office of Legislative Services), Justice Alito graduated from Princeton and then from Yale Law School where he served as an editor of the Yale Law Journal. He served as an assistant to the United States Solicitor General and Deputy Assistant to the Attorney General before becoming the United States Attorney for the District of New Jersey. He developed the reputation of a tough but fair prosecutor and was known especially for his efforts directed against drug trafficking and organized crime. Before his Supreme Court appointment in 2006, he served for sixteen years as a judge on the United States Court of Appeals for the Third Circuit.
Hugo L. Black (1886–1971)
In 1937, President Roosevelt chose Hugo Black to fill the first available vacancy on the Court. A southern progressive who had defended the rights of labor organizers and investigated police brutality before coming to Washington, Black served in the U.S. Senate for ten years
Prior to his appointment. As a senator, he strongly defended New Deal programs, including Roosevelt’s “Court-packing” plan. Shortly after his confirmation he Pecame the subject of controversy when it was revealed that he had belonged to the Ku Klux Klan for two years in the 1920s. The controversy subsided after Black, ‘n a dramatic radio address, admitted his prior membership, but added that he lad resigned many years before and would comment no further. As a justice, Black was known for his insistence on what he claimed to be literal enforcement
°F constitutional guarantees, especially the first amendment guarantee of free
Wii speech. Although frequently characterized as an “activist” because of his willingness to subject to intensive review legislation that arguably violated express constitutional provisions, Black himself thought that literalism was necessary to confine judicial power. Thus, his insistence that the fourteenth amendment incorporated and made applicable to the states the guarantees of the first eight amendments was premised in part on his belief that any other approach would leave justices free to read their own values into the Constitution. See Adamson v. California, 332 U.S. 46 (1947). Consistent with this view, in cases such as Griswold v. Connecticut, 381 U.S. 479 (1965), Black rejected the notion that the Constitution contained general guarantees of “privacy” or “natural rights” beyond those expressly articulated in the text. See R. Newman, Hugo Black: A Biography (1994); G. Dunne, Hugo Black and the Judicial Revolution (1977).
Harry A. Blackmun (1908–1999)
Harry Blackmun was President Nixon’s third choice to fill the seat vacated when Abe Fortas resigned in 1970. After failing to secure confirmation of Clement Haynsworth of South Carolina and G. Harrold Carswell of Florida, Nixon announced that the Senate “as it is presently constituted” would not confirm a southerner and turned to Blackmun, a judge on the Eighth Circuit Court of Appeals. A boyhood friend of Chief Justice Burger, Blackmun was quickly dubbed “the Minnesota ‘T’win” by the press. During his early years on the Court, he regularly voted with the chief justice. Later Fe distanced himself from the Court’s conservative bloc and increasingly joined Justices Marshall and Brennan in dissent. Blackmun is best known for his majority opinion in Roe v. Wade, 410 U.S. 113 (1973), upholding the constitutional right of women to decide for themselves whether to have an abortion. It has been suggested that the opinion was influenced by Blackmun’s experience before joining the Court as house counsel for the Mayo Clinic, where he frequently advised doctors and defended their right to make medical judgments.
Joseph P. Bradley (1813–1892)
The oldest of eleven children, Joseph Bradley was raised in poverty on a small farm. As a lawyer, he specialized in corporate and commercial law and represented several railroads. A Whig before the Civil War, Bradley was an avid supporter of the Union cause and became identified with the radical wing of the Republican Party in the postwar period. His appointment to the Court by President Grant in 1870 was later the subject of controversy because it made possible the reversal of the Court’s earlier decision involving the validity of the Civil War legal tender acts. Compare Hepburn v. Griswold, 75 U.S. (8 Wall.) 603 (1870) with The Legal Tender Cases, 79 U.S, (12 Wall.) 457 (1871). As a justice, Bradley supported the power of Congress to regulate the interstate movement of goods, even if the regulation limited state authority. His dissent in The Slaughter-House Cases, §3 U.S. (16 Wall.) 36 (1873), also showed a willingness to read the newly enacted fourteenth amendment as an important expansion of federal authority. In 1877, Bradley was a last-minute substitute on the electoral commission established to resolve the disputed presidential election of 1876. With the commission deadlocked seven to seven, Bradley cast the deciding vote to make Rutherford B. Hayes the President. See G. White, The American Judicial Tradition ch. 4 (1976); airman, Mr. Justice Bradley, in A. Dunham and P. Kurland, Mr. Justice 65-93 (1956).
Louis D. Brandeis (1856–1941)
The son of Jewish immigrants from
Bohemia, Louis Brandeis successfully practiced Jaw in Boston for forty years before his nomination to the Court. Although he became wealthy from his practice, Brandeis preferred to live simply, setting a ceiling on personal expenditures of one-fifth of his income. Even after his appointment to the Court, he provided financial support for the work of his proteges, one of whom was Felix Frankfurter. He devoted himself to a host of public causes. He defended municipal control of Boston’s subway system, opposed monopolistic practices of the New Haven Railroad, arbitrated labor disputes in New York’s garment industry, and argued in support of the constitutionality of state maximum hour and minimum wage statutes. His nomination to the Court by President Wilson in 1916 sparked heated opposition, including protests from seven ex-presidents of the American Bar Association. During his long tenure on the Court, Brandeis insisted on respect for jurisdictional and procedural limitations on the Court’s power. His distrust of large and powerful institutions, and of dogmatic adherence to the received wisdom, led him to support the constitutional authority of the states to experiment with unconventional social and economic theories, He also frequently dissented from the Court’s conservative majority when it blocked efforts of the federal government to intervene in the economy. Some of his most eloquent opinions, however, were written in defense of limits on governmental power when civil liberties were at issue. His famous concurring opinion in Whitney v. California, 274 U.S, 357 (1927), argued for freedom of expression on the ground that “it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.” And in Olmstead v. United States, 277 U.S. 438 (1928), Brandeis dissented from the Court’s refusal to condemn wiretapping, noting that “[o]ur Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.” See L. Paper, Brandeis (1983); M. Urofsky, Louis B. Brandeis and the Progressive Tradition (1981).
William J. Brennan, Jr. (1906–1997)
After graduating from Harvard Law School, William Brennan returned to his native Newark, where he joined a prominent law firm and specialized in labor law. As his practice grew, Brennan, a devoted family man, resented the demands it made on his time and accepted an appointment on the New Jersey Superior Court in order to lessen his workload. Brennan attracted attention as an efficient and fair-minded judge and was elevated to the New Jersey Supreme Court in 1952. President Eisenhower appointed him to the Supreme Court in 1956. The appointment was criticized at the time as “political” on the ground that the nomination of a Catholic Democrat on the eve of the 1956 presidential election was intended to win votes. Once on the Court, Justice Brennan firmly established himself as a leader of the liberal wing. He authored important opinions in the areas of free expression, criminal procedure, and reapportionment. Often credited with providing critical behind-the-scenes leadership during the Warren Court years, Brennan went on to play a significant role — although more often as a dissenter, lamenting what he believed to be the evisceration of Warren Court precedents — as the political complexion of the Court shifted in the 1970s and 1980s. Brennan’s Si , Spirit is perhaps best captured in his celebration in New York ‘Times v. van, 376 U.S. 255 (1964), of “our profound national commitment to
1€ principle that debate on public issues should be uninhibited, robust, and Wide-open ?
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Stephen G. Breyer (1938– )
Prior to his appointment to the Supreme Court, Stephen Breyer had compiled a distinguished record as a legal academic and in all three branches of the federal government. Educated at Oxford and Harvard Law School, he served as law clerk to Justice Arthur Goldberg and in the Justice Department before returning to Harvard to teach. During leaves of absence, he worked for Watergate Special Counsel Archibald Cox and served as chief counsel to the Senate Judiciary Committee. In 1980, President Carter named him to the U.S. Court of Appeals. As chief judge of the First Circuit, Breyer gained a reputation for his ability to forge consensus and to write opinions that were clear, concise, and trenchant. An expert on administrative law and an author of important works about risk assessment, Breyer has most often voted with the Court’s “liberal” bloc, although his interest in government regulation of the new technologies has sometimes fed him to reject first amendment challenges to such regulation. He is known for his pragmatism, his erudition, and his willingness to rethink old ideas.
Warren E. Burger (1907–1995)
The son of financially hard-pressed parents, Warren Burger attended college and law school at night while selling life insurance during the day, After a he entered private practice and assisted Harold Stassen in his unsuccessful bid for the Republican presidential nomination in 1948. In 1953, he came to Washington to serve as assistant attorney general for the Civil Division of the Justice Department. While in that post, he attracted public attention by defending the government’s dismissal of John F. Peters for disloyalty after Solicitor General Sobeloff refused to argue the case on grounds of conscience. Shortly thereafter President Eisenhower appointed him to the U.S. Court of Appeals for the District of Columbia Circuit. His tenure on that court was marked by sharp clashes with the court’s liberal majority, especially over criminal justice issues. In 1969, President Nixon named Burger chief justice to replace Karl Warren. A strong advocate of “strict construction” and a “plain meaning” approach to statutory and constitutional interpretation, Burger firmly identified himself with the Court’s conservative wing and often voted to limit Warren Court decisions. But he also authored important opinions upholding the right of trial judges to order busing as a remedy for school segregation, interpreting federal civil rights statutes as imposing an “effects” test for employment discrimination, and upholding the right of the press to remain free of prior restraints in covering criminal trials. Burger wrote for a unanimous Court in United States v. Nixon, 418 U.S. 683 (1974), upholding the subpoena for the Watergate tapes, which a few days later resulted in President Nixon’s resignation. The Court’s legacy under his leadership is much disputed, with some seeing continuity with the Warren Court years and others claiming that he began a period of substantial retrenchment. See FE, Maltz, The Chief Justiceship of Warren Burger, 1969-1989 (2000).
Benjamin N. Cardozo (1870–1938)
The son of a ‘Tammany Hall judge who was implicated in the Boss ‘Tweed scandal and resigned, rather than face impeachment, Benjamin Cardozo began his judicial career by narrowly defeating a Tammany candidate for a position on the New York Supreme Court. Shortly thereafter he was appointed to the New York Court of Appeals, where he served for eighteen years, during the last six of which he was chief judge. Cardozo is probably best remembered for his skill as a state common law judge. He was responsible for making the New York Court of Appeals the most respected state court in the country, and his judicial writings and lectures were immensely influential. Upon Justice Holmes’s retirement, President Hoover was inundated with requests that Cardozo be elevated to the Supreme Court. But there were already two New Yorkers and one Jew serving on the Court, and Hoover resisted. Only when Justice Stone offered to resign to make way for Cardozo did the President relent. Cardozo was a bachelor who had very few friends and lived for most of his life with his unmarried sister. Called “the hermit philosopher” by some, Cardozo was remembered by others for “the strangely compelling power of [his] reticent, sensitive almost mystical personality.” See R. Posner, Cardozo, A Study in Reputation (1990); G. Hellman, Benjamin N, Cardozo (1940).
William O. Douglas (1898–1980)
Widely regarded as one of the most brilliant, eccentric, and independent persons to serve on the Court, William Douglas sat as an associate justice for thirty-six years, seven months — longer than any other justice. Born in poverty in Minnesota, he spent his early years in Yakima, Washington. Although financially hard pressed, he managed to go east to study law at Columbia Law School, where he taught before joining the Yale faculty in 1929. President Roosevelt named him to the newly created Securities and Exchange Commission in 1934, and Douglas became its chairman in 1937. Roosevelt nominated him to be an associate justice in 1939. Douglas’s early opinions gave little hint of the controversy that would surround him in later years. Indeed, Roosevelt came close to choosing him as his running mate in 1944 — a decision that would have made him President on Roosevelt’s death a year later. In subsequent years, however, Douglas’s controversial statements both on and off the bench, his strong support for unpopular political causes, and his unconventional lifestyle (he was married four times) stirred up a whirlwind of political controversy. Congress twice began impeachment proceedings against him, although neither effort came close to success. A prodigiously rapid worker, Douglas often ridiculed his colleagues for complaining about the Court’s workload. By his own account, he once assisted a colleague a had fallen behind in his work by ghostwriting a majority opinion that responded to his own dissent. He often finished his work for the term early and retreated to his nearly inaccessible summer home in Yakima, to which lawyers were forced to trek when emergency matters arose. Critics claimed that his opinions showed the signs of haste; admirers emphasized the forceful, direct manner in which he cut through legal doctrine to reach the core issue in a case. His opinions were marked by a fierce commitment to individual rights and distrust of government power. See B. Murphy, Wild Bill: The Legend and Life of William O. Douglas (2003); W. Douglas, The Court Years 1939-1975 (1980); W. Douglas, Go East Young Man (1974); V. Countryman, Douglas of the Supreme Court (1959).
_ STEPHEN J. FIELD (1816-1899); In 1863, Congress authorized an additional seat on the Court in part to assure a majority sympathetic to the Union Cause in the Civil War. President Lincoln named Stephen Field, a Democrat who had nonetheless staunchly opposed secession, to fill the seat. Field was part of an illustrious family: His brothers included a well-known politician and lawyer, * widely read author, and a famous entrepreneur; he served for the last seven years of its tenure on the Court with his nephew, Justice Brewer; Anita Whitney, the Gomins activist who gained notoriety in Whitney v. California, 274 U.S. 357 . ’«/), was his niece. Justice Field himself was personally involved in a landmark Supreme Court case. When his personal bodyguard killed former Chief Justice
Terry of the California Supreme Court, allegedly while defending Justice Field’s life, the ensuing litigation ended in In re Neagle, 135 U.S. 1 (1890). In light of the circumstances surrounding his appointment, it was ironic that, once on the Court, Field tended to defend the South in particular and state sovereignty in general against extension of federal power during the Reconstruction period. In the period before substantive due process secured majority support on the Court, Field sought to provide constitutional protection for business enterprises. His dissenting opinion in The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), for example, read the fourteenth amendment as providing significant protection to property rights and was an important precursor of Lochner v. New York, 198 U.S. 45 (1905). By the time of his retirement in 1897, Field had surpassed John Marshall’s record for length of service. See P. Kens, Justice Stephen Field: Shaping Liberty from the Gold Rush to the Gilded Age (1997); C. Swisher, Stephen J. Field: Craftsman of the Law (1930).
Abe Fortas (1910–1984)
Founder of the Washington law firm Amold, Fortas, and Porter, Abe Fortas provided behind-the-scenes advice to Democratic politicians for years before his appointment to the Court in 1965. As a young man, Fortas held a series of jobs in the Roosevelt administration, including undersecretary of the interior under Harold Ickes. After entering private practice, Fortas found time to defend victims of McCarthyism and to litigate several important civil rights cases, including Gideon v. Wainwright, 372 U.S. 335 (1963). In 1948, Fortas successfully represented Congressman Lyndon Johnson when his forty-eight-vote victory in the Democratic senatorial primary was challenged. (The election earned Johnson the nickname “Landslide Lyndon.”) Fortas Serie one of Johnson’s close friends, and when Justice Goldberg resigned to become United Nations ambassador, Johnson appointed him to the Court. In 1968, when Chief Justice Warren indicated that he intended to retire, Johnson chose Fortas as Warren’s successor. The nomination had long-term consequences that neither man could have foreseen. Republicans “a conservative Democrats charged Johnson with “cronyism” and ultimately forced him to withdraw the nomination, but not before it was revealed that Fortas had received $15,000 to teach a course at a local university while on the bench, The next year Life magazine revealed that Fortas had accepted and then returned $20,000 from a charitable foundation controlled by the family of an indicted stock manipulator. Although denying any wrongdoing, Fortas resigned from the Court. As a consequence, President Nixon was able to fill two vacancies early in his term, thereby helping to fulfill his campaign promise to “roll back” the Warren Court revolution. See L. Kalman, Abe Fortas: A Biography (1990); B. Murphy, Fortas: The Rise and Ruin of a Supreme Court Justice (1988).
Felix Frankfurter (1882–1965)
An immigrant from Austria, Felix Frankfurter grew up in poverty on New York’s lower east side. Before his appointment to the Court by President Roosevelt in 1939, he taught at the Harvard Law School, helped found The New Republic, served in a variety of public positions, and provided important, informal advice to Roosevelt in formulating the New Deal. Frankfurter’s scholarly writings contributed significantly to understanding of administrative law, labor law, and the relationship between federal and state courts. As a justice, Frankfurter’s career was marked by a preoccupation with problems of judicial legitimacy and self-restraint. He frequently clashed with Justices Douglas and Black, also Roosevelt appointees, over the “preferred position” of the first amendment and the incorporation doctrine. His concern over the countermajoritarian aspect of judicial review led him to argue for deference to legislative judgment in such landmark cases as Dennis v. United States, 341 U.S. 494 (1951), and Baker v. Carr, 369 U.S. 186 (1962). See Hirsch, The Enigma of Felix Frankfurter (1981); J. Lash, From the Diaries of Felix Frankfurter (1974); P. Kurland, Felix Frankfurter on the Supreme Court (1970); L. Baker, Felix Frankfurter (1969).
Ruth Bader Ginsburg (1933– )
When Ruth Bader Ginsburg graduated from law school, one of her mentors suggested to Justice Felix Frankfurter that he take her on as a law clerk. Despite Ginsburg’s brilliant law school record (earned while caring for an infant daughter), Justice Frankfurter told her sponsor that he just was not ready to hire a woman. Thirty-three years after this rebuff, Ginsburg assumed her seat on the Supreme Court. In the intervening years, Ginsburg gained fame as the first tenured woman professor at Columbia Law School: as the director of the Women’s Rights Project of the American Civil Liberties Union, where she won many pioneering victories in the legal battle against gender discrimination; and as a judge on the U.S. Court of Appeals for the District of Columbia Circuit. She has been called “the Thurgood Marshall of gender equality law” and is said to be “as responsible as any one person for legal advances that women made under the Equal Protection Clause.” A strong defender of abortion rights, she has nonetheless criticized Roe v. Wade for rejecting a narrower approach to the abortion question that might have “served to reduce rather than to fuel controversy.” On the bench, she has often sided with her “liberal” colleagues. She authored a strong dissent in Bush v. Gore and wrote for a divided Court that invalidated the Virginia Military Institute’s policy excluding women students.
John Marshall Harlan (1833–1911)
Although a slaveholder and a member of the southern aristocracy, John Harlan remained loyal to the Union during the Civil War and commanded a regiment of Kentucky volunteers in the Union forces. At a critical moment in the deadlocked Republican convention of 1876, Harlan threw the support of the Kentucky delegation behind Rutherford B. Hayes, who rewarded him a year later with an appointment to the Coutt. Before his appointment, Harlan opposed the postwar amendments ending slavery and guaranteeing equal rights for blacks. (He opposed Lincoln and supported Democrat John McClellan in the 1864 presidential election.) Once on the Court, however, he advocated a broad reading of these amendments. His famous dissenting opinions in The Civil Rights Cases, 109 U.S. 3 (1883), and Plessy v. Ferguson, 163 U.S. 537 (1896), argued for Congress’s power to defend the newly freed slaves from “private” discrimination and against the constitutionality of state-mandated separation of the races. It was in Plessy that Harlan declared that “[o}ur Constitution is color blind” and rightly predicted that “the judgment this day rendered will, in time, prove to be quite as pernicious as the decision … in the Dred Scott case,” Well known for his distinctive personal style, Harlan often delivered his Opinions extemporaneously in the fashion of an old-time Kentucky stump speech. Justice Holmes described him as “the last of the tobacco-spitting judges.” See F Latham, The Great Dissenter: John Marshall Harlan (1970).
John Marshall Harlan (1899–1971)
The grandson of the first Justice Harlan, John Harlan was appointed to the Court by President Eisenhower in
- Before his appointment, Harlan spent a quarter of a century in practice with a prominent Wall Street law firm, served as chief counsel to the New York State Crime Commission, and sat briefly on the U.S. Court of Appeals for the Second Circuit. On the Court, Justice Harlan became the intellectual leader of the “conservative” wing, often dissenting from “activist” decisions during. the stewardship of Chief Justice Warren. He defended the values of federalism and never accepted the incorporation of the bill of rights against the states. Nor was he ever reconciled to the Court’s broad reading of the equal protection clause, especially when strict scrutiny was utilized to defend “fundamental” values. There was also a strong libertarian strain in Justice Harlan’s opinions, however. His belief in federalism and rejection of “judicial activism” did not prevent him from finding, for example, that the due process clause precluded the states from restricting the use of contraceptives by married couples. He also wrote for the Court in a series of important first amendment decisions, narrowly construing federal statutes prohibiting subversive advocacy and defending the right of a Vietnam War protestor to wear a jacket inscribed with the message “Fuck the Draft.” It was in the latter case that Harlan proclaimed that “one man’s vulgarity is another’s lyric.” During his tenure, Harlan was widely respected, even by opponents of his philosophy, for his thoroughness, candor, and civility. Although he often disagreed publicly with Justice Black, they were close friends in private. They were hospitalized together during their final illnesses and died within a short period of each other, See T. Yarbrough, John Marshall Harlan: Great Dissenter of the Warren Court (1992); D. Shapiro, The Evolution of a Judicial Philosophy: Selected Opinions and Papers of Justice
John M. Harlan (1969).
Oliver Wendell Holmes, Jr. (1841–1935)
Oliver Wendell
Holmes, the son of a famous poet and essayist, survived three wounds in the Civil War. He had already enjoyed a distinguished career as a practitioner, author, professor, and justice on the Supreme Judicial Court of Massachusetts before his appointment to the Supreme Court by President Roosevelt in 1902. Holmes, then sixty-two years old, seemed to be at the close of his career. A lifelong Republican, he was expected to be a loyal supporter of the President on the bench. Few could have anticipated that he would serve on the Court for twenty-nine years, that his tenure would be marked by a fierce independence, and that he would exercise virtually unparalleled influence over modern constitutional theory. Holmes is perhaps best remembered for his formulation of the “clear and present danger test” for subversive advocacy and his rejection of substantive due process as a limitation on state social and economic legislation. His judicial philosophy was marked by skepticism, particularism, and pragmatism. He doubted that general propositions decided particular cases or that broad value judgments could be objectively defended. He thought that the law was necessarily unconcerned with the thought processes of those it regulated, and that it had no independent existence apart from what people did in response to what judges said. For twenty-five years, he walked daily the two and one-half miles from his home to the Court, never missing a session. He finally retired at ninety years of age and died two days before his ninety-fourth birthday. See A. Alschuler, Law without Values: The Life, Work and Legacy of Justice Holmes (2000); G. White, Justice Oliver Wendell Holmes: Law and the Inner Self (1993); M. Howe, Justice Oliver Wendell Holmes: The Proving Years (1963); M. Howe, Justice Oliver Wendell Holmes: The Shaping Years (1957).
Charles Evans Hughes (1862–1948)
After defeating William Randolph Hearst for the governorship of New York, Charles Evans Hughes served as governor for one term and part of another until 1910, when President Taft appointed him to the Court. In 1916, Hughes resigned to run for the presidency on the Republican and Progressive tickets against Woodrow Wilson. On election eve, he went to bed thinking that he was President, but when the final returns were counted, he had lost by a scant twenty-three electoral votes. Hughes returned to New York law practice until President Harding appointed him secretary of state. In 1930, President Hoover returned Hughes to the Court, this time as chief justice. Hughes served as chief justice during the tumultuous eleven-year period when the Court blocked much of President Roosevelt’s New Deal, then survived a direct attack on its independence, and finally reconciled itself to the fundamental changes wrought by Roosevelt’s program. ‘Throughout this period, Hughes occupied a centrist position. Although closely identified with the conservative New York bar, he often joined the liberals on the Court who dissented from invalidation of social and economic legislation. But he also defended the institutional independence of the Court when it was attacked by President Roosevelt. At a crucial point in the “Court-packing” controversy, Hughes sent a letter to Senator Wheeler arguing that the Court was current in its work, and that the addition of new justices would create serious inefficiencies. Upon his retirement in 1941, Justice Frankfurter likened his leader- ship ability to that of “Toscanini lead{ing] an orchestra.” See M. Pusey, Charles Evans Hughes (1951).
Robert H. Jackson (1892–1954)
A skillful advocate and brilliant legal stylist, Robert Jackson rose quickly in the early Roosevelt administration, eventually becoming one of President Roosevelt’s closest advisors. After serving as counsel to the Internal Revenue Bureau, where he won a $750,000 judgment against former Treasury Secretary Andrew W. Mellon, Jackson served successively as assistant attorney general, solicitor general, and attorney general. President Roosevelt named him to the Supreme Court in 1941 to fill the seat vacated by Justice Stone when Stone was appointed chief justice. Jackson is perhaps best remembered for his graceful prose and his subtle and original efforts to articulate a coherent theory of separation of powers in his opinions in such cases as Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), and Korematsu v. United States, 323 U.S. 214 (1944). In 1945, while still on the Court, Jackson served as the chief U.S. prosecutor at the Nuremberg war crimes trial. This exposure to German fascism may have influenced Jackson’s subsequent approach to constitutional interpretation. Many of his later first amendment opinions, for example, were preoccupied with the attempt to draw a bright line between protected freedom of conscience and unprotected speech that threatened the public peace and order. Jackson’s willingness to permit government regulation of subversive or abusive advocacy in cases such as Dennis v. United States, 341 U.S. 494 (1951), and Terminiello v. Chicago, 337 U.S. ] (1949), brought him into sharp conflict with Justices Black and Douglas — conflict that was exacerbated by deteriorating personal relationships. When Chief Justice Stone died, it was reported that several justices threatened to resign if Jackson was elevated to the chief justiceship. Jackson never became chief justice, but remained on the Court until his death in 1954. See FE. Gerhart, America’s Advocate: Robert H. Jackson (1958); G. White, The American Judicial Tradition ch. 11 (1976).
Elena Kagan (1960– )
Named to the Supreme Court by Barack Obama in 2010, Elena Kagan is the first person nominated to the Court without judicial experience in almost forty years. After graduating magna cum laude from Harvard Law School, she clerked for Justice Thurgood Marshall, who nicknamed her “shorty” because of her 5’3” height. She then embarked on a distinguished academic career, first at the University of Chicago Law School and then at Harvard Law School, where she eventually became the first woman dean. For four years she served President Clinton as Associate White House Counsel, Deputy Assistant to the President for Domestic Policy, and Deputy Director of the Domestic Policy Council. In 2009, President Obama named her Solicitor General of the United States. Kagan is known for her powerful intellect, effective writing style, and puckish sense of humor.
Anthony M. Kennedy (1936– )
President Reagan’s effort to fill the seat vacated by the retirement of Justice Powell, who was widely viewed as a “swing vote” on a number of important issues, sparked an extraordinary controversy about the future direction of the Supreme Court. His first nominee, Robert Bork, was defeated on the Senate floor after a long and bitter debate that pitted “originalists” against those who would treat the Constitution as incorporating values not directly derived from the text. His second nominee, Douglas Ginsburg, was forced to withdraw from consideration after it was revealed that he had used marijuana. In the wake of these events, the Senate greeted with relief the nomination of Anthony Kennedy, a relatively colorless and nonideological conservative. After graduating from Harvard Law School in 1961, Kennedy worked as a lawyer and lobbyist in California until his appointment to the Ninth Circuit by President Ford in 1975. Since joining the Supreme Coutt, he has most often voted with the “conservative” bloc. He criticized his colleagues for “trivializing constitutional adjudication” by engaging in a “jurisprudence of minutiae” in its enforcement of the establishment clause and for moving “from ‘separate but equal’ to ‘unequal but benign” in upholding an affirmative action plan. However, he joined some of his liberal colleagues when he twice cast the deciding vote to uphold the first amendment right of protestors to burn the American flag and disappointed some of his conservative supporters when he coauthored a joint opinion with Justices Souter and O’Connor declining to overrule Roe v. Wade, authored two opinions for the Court upholding the rights of homosexuals, and wrote for the Court to invalidate state-sponsored prayers at public school events.
John Marshall (1755–1835)
A century and a half after his death, John Marshall remains perhaps the most important single figure in American constitutional history. Born in a log cabin on the Virginia frontier, he served in the Continental Army during the Revolutionary War. After only the briefest formal instruction, he began the practice of law, specializing in the defense of Virginians against British creditors. Before entering public life, Marshall himself was constantly hounded by creditors. He wrote his five-volume biography of George Washington in an unsuccessful effort to raise money to pay off his debts. In 1799, Marshall entered the House of Representatives, and the following year he became secretary of state in the Adams administration, During his brief tenure, he signed and sealed, but failed to deliver, the famous commission nam- ing William Marbury justice of the peace for the District of Columbia. In 1800, Adams appointed Marshall chief justice after John Jay, the Court’s first chief justice, declined reappointment to the position. Marshall served for thirty-four years, participated in more than one thousand decisions, and wrote over five hundred opinions. He is best remembered for establishing the Court’s power to declare congressional statutes unconstitutional in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), although his contemporaries found the portion of Marbury asserting judicial control over presidential appointees much more controversial, But in some ways his refusal to invalidate a statute enacted pursuant to Congress’s powers in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), and his willingness to strike down state statutes interfering with federal powers or individual rights in such cases as McCulloch, Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824), and Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810), were even more influential on modern constitutional theory. In 1807, Marshall presided over the treason trial of former Vice President Aaron Burr. In the course of that trial, he signed the famous subpoena directing President Jefferson to produce various documents relevant to the trial —a precedent much cited over a century and a half later when Richard Nixon asserted “executive privilege” to resist a judicial subpoena. See L. Baker, John Marshall: A Life in the Law (1974); A. Beveridge, The Life of John Marshall (1916).
Thurgood Marshall (1908–1993)
The son of a primary school teacher and a club steward, Thurgood Marshall became the first African American to serve on the Court when he was appointed by President Johnson in 1967. But Marshall had already made an enduring mark on American legal history decades before his judicial career began. After graduating first in his class from Howard Law School, Marshall began his long involvement with the National Association for the Advancement of Colored People. For two decades, he traveled across the country coordinating the NAACP’s attack on segregation in housing, employment, voting, public accommodations, and, especially, education, His most famous victory during this period came in Brown v. Board of Education, 347 U.S. 483 (1954), where he successfully argued that segregated public education violated the equal protection clause. In 1961, President Kennedy nominated him to serve on the U.S. Court of Appeals for the Second Circuit. Although southern senators blocked his confirmation for a year, he finally assumed his seat, where he served until 1965, when President Johnson appointed him solicitor general. As a justice, Marshall was known primarily for his unstinting defense of racial and other minorities, his liberal interpretation of free speech and press guarantees, his “multi-tiered” theory of equal protection analysis, and his fervent opposition to capital punishment. See J. Williams, Thurgood Marshall: An American Revolutionary (1998); M. ‘Tushnet, Making Constitutional Law: Thurgood Marshall and the Supreme Court 1961-1991 (1997); M. Tushnet, Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1931-1961 (1994).
JAMES C. McREYNOLDS (1862-1946): Although remembered today primarily as one of the “four horsemen of reaction” who helped block Franklin Roosevelt’s New Deal, James McReynolds first came to public attention as a ee “trust buster” in the Theodore Roosevelt and Wilson administrations. of the year that he served as Wilson’s attorney general, he angered many members [of the Senate] and of the administration with his arrogance and ill-temper. President Wilson named him to the Court in 1914 largely to quiet the controversy. His judicial career was marked by an unyielding commitment to strict constructionism and conservative principles. His personal manner continued to alienate many of his colleagues. After The Gold Clause Cases were decided in 1935, he proclaimed, “Shame and humiliation are on us now. Moral and financial chaos may confidently be expected.” Chief Justice Taft remarked that McReynolds “has a continual grouch” and “seems to delight in making others uncomfortable.” Widely accused of anti-Semitism, McReynolds conspicuously failed to sign the letter of affection and regret drafted by his brethren on Justice Brandeis’s retirement from the Court.
Sandra Day O’Connor (1930– )
The first woman ever to serve on the Court, Sandra Day O’Connor was appointed by President Reagan in 1981. O’Connor was a classmate of Justice Rehnquist at the Stanford Law School, where she was an editor of the Stanford Law Review. Despite her outstanding academic achievements, O’Connor found it difficult to locate a job on graduation. When she applied to the firm in which future Attorney General William French Smith was a partner, she was offered the position of secretary. After briefly serving as deputy county attorney for San Mateo County in California, she worked as a civilian attorney for the army while her husband served his tour of duty. She then spent eight years as a mother, homemaker, and volunteer while her three children grew up. When she resumed her legal career, she became an assistant attorney general in Arizona. In 1970, she was elected to the Arizona senate and eventually became majority leader. She then served on the Superior Court for Maricopa County and the Arizona Court of Appeals. Perhaps more often than any other justice in the Court’s history, Justice O’Connor cast the deciding vote in important cases. She showed a preference for a balancing approach to constitutional law and case-by-case particularism — a stance that created conflict with Justice Scalia, who claims to favor a rule-based approach. She initially urged her colleagues to reconsider the Court’s analysis of the abortion question in Roe v. Wade, but later surprised many by coauthoring an important opinion preserving Roe’s central holding at a time when many thought it would be overruled. She wrote for a five-to-four majority to permit universities to utilize affirmative action programs to help achieve racial diversity and authored the majority opinion holding that the executive could not indefinitely hold “enemy combatants” without providing a procedure under which they could challenge their detention. Widely respected for her incisive and informed questioning at oral argument, O’Connor was known for her deference to the political branches of government, for her defense of federalism, and for her original approach to the problem of church-state relations. See $. O’Connor, Lazy B: Growing up on a Cattle Ranch in the American Southwest (2002); Comment, The Emerging Jurisprudence of Justice O’Connor, 52 U. Chi. L. Rev. 389 (1985),
Lewis F. Powell, Jr. (1907–1998)
Following his graduation from Harvard Law School, Lewis Powell returned to his native Virginia, where he joined one of Richmond’s most prestigious law firms. As president of the Richmond school board during a period of intense controversy concerning school desegregation, Powell gained a reputation as a racial moderate. Despite intense pressure rom those advocating “massive resistance,” he insisted on keeping the schools open. Powell was elected president of the American Bar Association in 1964. In that capacity, he worked to establish a legal services program within the Office of Economic Opportunity and spoke out against civil disobedience and “parental permissiveness.” In 1971, President Nixon fulfilled his promise to name a southerner to the Court by selecting Powell to fill the vacancy created by the resignation of Justice Black. A few years after his appointment, Powell seemed to speak for the South in his concurring opinion in Keyes v. School District, 413 U.S. 189 (1973), in which he argued that there was no significant legal distinction between northern and southern school segregation. Over time, Powell gained the reputation as an ad hoc “balancer,” often casting the critical “swing vote” in important decisions. In Regents of the University of California v. Bakke, 438 U.S. 265 (1978), Trimble v. Gordon, 430 U.S. 762 (1977), and Branzburg v. Hayes, 408 US. 665 (1972), for example, he controlled the disposition even though he was the only justice adopting his particular view of affirmative action, the rights of nonmarital children, wat press rights, respectively. See J. Jeffries, Justice Lewis F. Powell, Jr. (1994).
William H. Rehnquist (1924–2005)
After graduating from Stanford Law School, William Rehnquist came to Washington in 1952 to clerk for Associate Justice Robert Jackson. During his clerkship, he wrote a controversial memorandum for Justice Jackson supporting the constitutionality of “separate but equal” education for blacks. When the memorandum surfaced years later during Rehnquist’s confirmation hearings, he explained that it represented Jackson’s views and not his own. Following his clerkship, Rehnquist moved to Phoenix, Arizona, where he became involved in Republican politics. A strong supporter of Barry Goldwater, Rehnquist headed the Justice Department’s Office of Legal Counsel in the Nixon administration. President Nixon named him to the Court in 1971, and President Reagan named him chief justice in 1986. Chief Justice Rehnquist was known for his commitment to judicial restraint and majoritarianism. His opinions in the areas of equal protection, due process, and free speech consistently reflected a narrow construction of constitutional rights. For example, he would have limited strict scrutiny under the equal protection clause to cases involving racial discrimination. Unlike conservative justices of an earlier era, however, Rehnquist maintained the same deferential stance when reviewing state legislation arguably interfering with private markets and the free flow of commerce. See, e.g., his opinion for the Court in Posadas de Puerto Rico Associates y. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986), and his dissenting opinion in Kassel v. Consolidated Freightways Corp., 450 U.S. 662 (1981). Nonetheless, Rehnquist supported judicial intervention to protect the prerogatives of the states from federal interference and to place constitutional limits on affirmative action programs arguably discriminating in favor of racial minorities. ane Mr. Justice Rehnquist: A Preliminary View, 90 Harv. L. Rev. 293
John G. Roberts, Jr. (1955– )
Originally nominated by President George W. Bush to replace Justice O’Connor, John Roberts was renominated for the position of Chief Justice of the United States following the death of Chief Justice Rehnquist. Upon his confirmation in 2005, he became the third youngest chief justice in American history and the first justice to replace the justice for whom he had clerked. After graduating magna cum laude from Harvard Law School, Roberts served as a special assistant to the Attorney General, Associate Counsel to the President, and the Principal Deputy Solicitor General. He is one of the most experienced and successful Supreme Court advocates ever to have been appointed to the Court. While in government service, he argued thirty-nine cases before the Supreme Court, winning twenty-five of them. Upon leaving government, he became head of the appellate practice of a major Washington law firm, in which capacity he argued fourteen additional cases before the Court. In 2003, he became a judge on the United States Court of Appeals for the District of Columbia Circuit. Since becoming chief justice, he has spoken repeatedly in favor of having the Court decide cases narrowly and uniting behind a single majority opinion. Although he had suggested in his confirmation hearings that the Court should increase the number of merits cases it hears, the Court’s docket has remained low by historical standards.
Antonin Scalia (1936– )
The son of an Italian immigrant, Antonin Scalia was the first Italian American to be appointed to the Supreme Court. A former law professor and assistant attorney general, he earned a reputation as an intelligent, hardworking, and dedicated conservative while serving as a judge on the U.S. Court of Appeals for the District of Columbia Circuit. Since his elevation to the Supreme Court, Justice Scalia has become known for his forceful opposition to constitutional balancing tests and to reliance on nontextual sources of interpretation. This posture has most often led him to “conservative” outcomes. He is a strong defender of executive prerogatives and is perhaps the Court’s most vigorous opponent of affirmative action and abortion rights. ‘The same posture has occasionally led him to vote with the Court’s “liberals,” however, especially on free speech and search and seizure questions. In a concurring opinion concerning the status of “enemy combatants,” he went further than the majority by insisting that the Constitution did not grant the President authority to hold American citizens without trial. Some commentators consider him the Court’s most accomplished stylist, while others decry the effect of his sharply worded opinions on civility in constitutional discourse.
Sonia Sotomayor (1954– )
Justice Sotomayor is the daughter of a factory worker with a third grade education who died when she was nine and a nurse who raised her as a single mother. She grew up in a public housing project in the South Bronx. After graduating valedictorian of her high school Des she enrolled at Princeton, where she graduated summa cum laude and Yale Law School, where she was an editor of the Yale Law Journal. She served as a prosecutor and in private practice until she was appointed to the United States District Court by George H.W. Bush. In 1995, she issued a ruling that effectively ended the Major League Baseball strike, a decision that, according to a reporter for the Philadelphia Inquirer, caused her to join “the ranks of Joe DiMaggio, Willie Mays, Jackie Robinson, and Ted Williams.” In 1998, President Bill Clinton appointed her to the United States Court of Appeals for the Second Circuit, where she served as the first Latina on that court. Nominated by Barack Obama, she joined the Supreme Court in 2009. Since her elevation, Justice Sotomayor has generally voted with the Court’s liberal wing. She has become known for her probing questions at oral argument and her mastery of the record in complex cases. See Sonia Sotomayor, My Beloved World (2013).
David Hackett Souter (1939– )
Prior to his nomination to the Supreme Court by the first President Bush, David Souter was a virtual unknown. In his long career as a justice on the New Hampshire Supreme Court, a judge on the New Hampshire trial court, and New Hampshire’s attorney general, he seldom had occasion to express his views on contentious constitutional issues such as abortion and affirmative action. Indeed, some critics suggested that
President Bush, mindful of the searing controversy surrounding the nomination of Judge Bork, selected Souter principally because he lacked a “paper trail.” But although Souter had little experience in constitutional adjudication, he came to the Court with solid intellectual credentials. A Rhodes scholar and graduate of the Harvard Law School, he was praised by liberals and conservatives alike for his intelligence and fair-mindedness. The counsel for the New Hampshire State Democratic Party and president of the New Hampshire Bar Association characterized him as “an enormous intellectual” and “about 135 pounds — and about 120 pounds of brain.” Before his appointment, Justice Souter lived by himself in a ramshackle New Hampshire farmhouse laden with stacks of books. Friends said that he liked to work seven days a week, taking time out to hike and listen to classical music. As a justice, Souter is known for careful, lawyerlike opinions and his moderate, nonideological stance toward controversial constitutional issues.
John Paul Stevens (1920– )
A graduate of Northwestern Law School, John Paul Stevens clerked for Justice Wiley B. Rutledge before joining a Chicago law firm specializing in antitrust work. He taught part-time at the University of Chicago and Northwestern Law Schools until his appointment to the Seventh Circuit Court of Appeals in 1970. Although a registered Republican, Justice Stevens was never active in partisan politics. President Ford elevated him to the Supreme Court in 1975. Stevens is known for his independence and an unwillingness to be bound by ti id formulas. He rejected the position that equal protection analysis can be ae to various “tiers” of review, for example, arguing that various factors must be weighed under the same standard in every case to ensure that the state has met its obligation to govern impartially. And in free speech cases Stevens staked out his own theory that fits comfortably within neither the traditional “liberal” nor the traditional “conservative” ideology. See, eg., Smith v. United States, 43] U.S. 291 (1977); Young v. American Mini Theatres, 427 U.S. 50 (1976).
Potter Stewart (1915–1985)
Son of the Republican mayor of Cincinnati, Potter Stewart became active in Ohio Republican politics at an early age. He was twice elected to the city council and served one term as vice mayor before President Eisenhower appointed him to the Sixth Circuit Court of Appeals in 1954. In 1958, Eisenhower elevated him to the Supreme Court, where he served until his retirement in 1981. Although his political background was conservative, Stewart occupied a centrist position on the Court. He frequently voted with the liberal justices on first amendment issues (an orientation perhaps influenced by his experience as editor of a student newspaper while at Yale), but with conservative justices on equal protection issues. On many questions, his position simply could not be predicted in advance, and he had little difficulty in changing his mind about views he had expressed in earlier opinions. Perhaps his most famous opinion was a concurrence in Jacobellis v. Ohio, 378 U.S. 184 (1964), in which he said of “hard core” pornography, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.” Although sometimes ridiculed, this statement in some ways summarized Stewart’s judicial philosophy, which tended to be particularistic, intuitive, and pragmatic.
Harlan Fiske Stone (1872–1946)
For twenty-five years, Harlan Fiske Stone practiced law with a Wall Street law firm and served as a professor and the dean of Columbia Law School. In 1924, President Coolidge appointed Stone, his old friend and classmate, to head a Department of Justice demoralized by the Teapot Dome scandal. A year later Coolidge appointed Stone to the Court. Although a Republican and moderate conservative, Stone sided with the wing of the Court willing to uphold New Deal programs during the great controversy that engulfed the Court in the early 1930s. In 1941, President Roosevelt elevated Stone to chief justice, an appointment that Archibald MacLeish called “the perfect word spoken at the perfect moment.” Justice Stone’s footnote 4 in United States v. Carolene Products, 304 U.S. 144 (1938), is doubtless the most famous footnote in constitutional law and has formed the basis of much of modern constitutional theory. During his twenty-one years on the bench, Stone occupied every seat from junior associate justice to senior associate justice to chief justice — a feat accomplished by no one else. He died “with his boots on” — stricken while reading a dissenting opinion from the bench in 1946. See A. Mason, Harlan Fiske Stone: A Pillar of the Law (1956); G. White, The American Judicial Tradition ch. 10 (1976); Dunham, Mr. Chief Justice Stone, in A. Dunham and P. Kurland, Mr. Justice 229-251 (1956).
Joseph Story (1779–1845)
Joseph Story was only thirty-two years old and had had no judicial experience when James Madison appointed him to the Court in 1811. Although a Republican, Story had strong nationalist sympathies and sided with John Marshall throughout much of his judicial career. His opinion in Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816), established the finality of the Court’s constitutional authority against the states. His nationalist inclinations were also reflected in Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842), which upheld the power of federal courts to create a national commercial law. As a circuit justice, Story was said to absorb “jurisdiction as a sponge took up water,” and some claimed that, “if a bucket of water were brought into his court with a corn cob floating in it, he would at once extend the admiralty jurisdiction of the United States over it.” A serious scholar, Story was elected to the Harvard Board of Overseers and played a key role in the founding of Harvard Law School. His Commentaries on the Constitution, published in 1833, was a classic of its time. On Marshall’s death in 1835, Story hoped to be nominated chief justice, but Andrew Jackson, who had called him “the most dangerous man in America,” named Roger Taney instead. Story was frequently in dissent during the nine years he sat on the Taney Court. See, e.g., Charles River Bridge v. Warren Bridge, 36 U.S. (11 Pet.) 420 (1837). Frustrated by the direction of the Court, which he saw as undermining the Marshall Court’s conception of the Constitution, he planned to resign in 1845, but fell ill and died before he could complete his unfinished business. See G. Dunne, Justice Joseph Story and the Rise of the Supreme Court (1970); K. Neumyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (1984).
George Sutherland (1862–1942)
A friend and close advisor to President Harding, George Sutherland was appointed to the Court in 1922. Before his appointment, he served in the U.S. Senate for twelve years, where he developed a reputation as an authority on constitutional questions and a conservative who nonetheless occasionally supported progressive causes. While on the Court, he was the intellectual leader of the conservative wing. He strongly objected ‘to ee what he considered the evisceration of the contract clause and vigorously opposed the constitutionality of minimum wage laws. See Home Building & Loan Association v. Blaisdell, 290 U.S. 398 ( 1934); Adkins v. Children’s Hospital, 261 U.S. 525 (1923). But his concern for the rights of individuals and broad reading of the due process clause also led him to write for the majority in Powell vy. Alabama, 287 U.S. 45 (1932), which reversed the conviction of the “Scottsboro Boys” and began the process of extending constitutionally based rules of criminal procedure to the states. See H. Arkes, The Return of George Sutherland: Restoring Jurisprudence of Natural Rights (1994); J. Paschal, Mr. Justice Sutherland: A Man against the State (1951). ;
William Howard Taft (1857–1930)
The only person to serve as both President and chief justice, William Howard ‘Taft’s career was marked by genial conservatism and a commitment to the institutional independence ak branch of the federal government. Taft served as secretary of war in Theodore Roosevelt’s administration and became one of Roosevelt’s closest advisors. With support from Roosevelt, he was elected President in 1908. Soon after his inauguration, however, he and Roosevelt split, and he lost his bid for reelection in 1912, when Roosevelt splintered the Republican vote by running as a third-party candidate. After leaving the presidency, Taft taught constitutional law at Yale University and served for a year as president of the American Bar Association. Along with several other former ABA presidents, ‘Taft fought to block Louis Rinsided’ nomination to the Court in 1916. President Harding named Taft chief justice in 1921. ‘Taft was responsible for passage of the Judiciary Act of 1925, which gave the Supreme Court effective control over its own appellate jurisdiction and for the appropriation of funds for construction of the present Supreme Court building. See A. Mason, William Howard Taft: Chief Justice (1964).
Roger B. Taney (1777–1864)
Prior to his appointment as chief justice by President Jackson in 1835, Roger ‘Taney served as Jackson’s attorney general and secretary of the treasury. While serving in Jackson’s cabinet, he became enmeshed in the controversy surrounding the second Bank of the United States. As attorney general, Taney drafted Jackson’s message vetoing the bank’s recharter, and when the secretary of the treasury refused to withdraw federal funds from the Bank, Jackson named Taney to the post so that he could do so. But when Jackson submitted Taney’s name to the Senate for confirmation, he was defeated and forced to withdraw. Senate Whigs, who feared that ‘Taney was too radical, again blocked his nomination as associate justice in 1835. Shortly thereafter, however, he was successfully nominated to replace John Marshall as chief justice. ‘Taney’s career on the Court is overshadowed by his opinion in Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), widely viewed as one of the great legal and moral blunders in the Court’s history. The rest of his tenure, however, was marked by the cautious and careful use of judicial power. Contrary to the expectations of his contemporaries, he did not support the wholesale abandonment of the Marshall legacy. Instead, he steered a middle course between the extreme nationalism and extreme localism of his colleagues. But as the nation approached civil war, the ground in the middle became increasingly unstable, and Taney’s one spasmodic ms to end the nation’s agony over slavery by imposing a constitutional solution re ‘i Scott ended in a tragedy that permanently marred his reputation. See C. Swisher, Roger B. Taney (1935); G. White, The American Judicial Tradition ch. 3 (1976).
Clarence Thomas (1948– )
Born into grinding poverty in segregated coastal Georgia, Clarence Thomas became the second African American and one of the youngest justices to join the Court when he was appointed by President Bush in 1991. He was confirmed by the Senate to fill the seat vacated by the retirement of Thurgood Marshall after extraordinary confirmation hearings that opened with a moving account of his personal saga and closed with charges of sexual harassment leveled against him by Anita Hill who had worked with him at the Department of Education and the Equal Employment Opportunity Commission. A graduate of Yale Law School, he served as assistant secretary for civil rights at the Department of Education and chair of the Equal Employment Opportunity Commission in the Reagan administration. During his controversial seven-year stewardship of the EEOC, Thomas’s fierce opposition to affirmative action antagonized liberals and members of the civil rights community. In 1989, President Bush appointed Thomas to the U.S. Court of Appeals for the District of Columbia Circuit, where he served for fifteen months oe his elevation to the Supreme Court. Known as a staunch conservative, ‘Thomas’s extrajudicial writings suggest an interest in natural law asa basis for constitutional adjudication. Since joining the Court, he has written a series of distinctive dissents and concurrences, fen demonstrating a willingness to reject settled precedent in favor of his understanding of the constitutional text. On racial issues, he strongly opposes what he considers liberal condescension in the form of affirmative action and the assumption that majority black institutions are necessarily inferior. See K. Foskett, Judging Thomas: The Life and Times of Clarence Thomas (2004); A. Thomas, Clarence Thomas: A Biography (2001).
Willis Van Devanter (1859–1941)
A lawyer’s lawyer, William Van Devanter invariably sided with the conservative wing of the Court, but, unlike some of his colleagues, never resorted to divisive ideological rhetoric. Instead, he relied on his mastery of technical doctrine to become a “master of formulas that decided cases without creating precedents.” Van Devanter, who was active in Republican politics in Wyoming, came to Washington during the McKinley administration and was named to the Eighth Circuit Court of Appeals by Theodore Roosevelt. When President Taft nominated him to serve as an associate justice, William Jennings Bryan complained that he was “the judge that held that two railroads running parallel to each other for two thousand miles were not competing lines, one of the roads being that of Union Pacific,” one of Van Devanter’s former clients. It has been said that Van Devanter came to the Court “fully equipped with a lawyer’s understanding of federal jurisdiction, a frontiersman’s knowledge of Indian affairs, and a native hostility to governmental regulation.” His years on the Court were marked by a concern for technical jurisdictional questions and opposition to government intervention in all forms. His retirement in June 1937 gave Franklin Roosevelt his first appointment and helped defuse the crisis created by the Court’s opposition to the New Deal.
Earl Warren (1891–1974)
Both vilified and canonized during and since his tenure, Earl Warren presided as chief justice over one of the most tumultuous and portentous periods in the Court’s history. ‘The emotions that he aroused are hard to reconcile with his political stance, which was, essentially, centrist and pragmatic. As Republican governor of California, he denounced “communistic radicals” and supported the wartime order to forcibly evacuate Japanese Americans. (‘The Court subsequently upheld the constitutionality of the evacuation in
Korematsu v. United States, 323 U.S. 214 (1944).) In his later years as governor, however, he developed a reputation as a progressive and proposed state programs for prepaid medical insurance and liberal welfare benefits. In 1948, he ran for Vice President on the ticket headed by Thomas Dewey. In 1952, he mounted his own presidential effort. At the Republican convention, however, he threw his support behind Dwight Eisenhower. President Eisenhower repaid Warren by nominating him as chief justice in 1953 — a nomination Eisenhower later called “the biggest damn-fool mistake I ever made.” Perhaps Warren’s greatest accomplishment on the Court was his painstaking and successful effort to maintain a united front as the Court overturned the separate but equal doctrine in Brown v. Board of Education, 347 U.S. 873 (1954), and then confronted southern violence and intransigence. Warren himself believed that his opinion in Reynolds v. Sims, 377 U.S. 533 (1964), establishing the one person, one vote formula, was of greater significance. In the end, however, it may have been his opinions in the field of criminal procedure — especially Miranda v. Arizona, 384 U.S. 436 (1966) — that attracted the most controversy. This controversy tended to obscure the fact that there was a strong conservative and moralistic tone to many of Warren’s opinions. He opposed constitutional protection for “pornographic” literature, for example, and dissented in Shapiro v. Thompson, 394 U.S. 618 (1969), when the Court invalidated durational residency requirements for welfare recipients. Warren was distrustful of complex doctrinal argument. His opinions were thus marked by a confident, intuitively grounded insistence on fair play and fundamental justice. See B. Schwartz, Superchief (1983); E. Warren, The Memoirs of Earl Warren (1977); G. White, Earl Warren (1982).
Byron R. White (1917–2002)
An outstanding scholar-athlete, Byron
“Whizzer” White was first in his class,at the University of Colorado, a Rhodes scholar, and a professional football player with the Detroit Lions before beginning his legal career. White served in the navy during World War II and graduated from Yale Law School magna cum laude. After serving as law clerk to Chief Justice Fred Vinson, he returned to his native Colorado where he practiced with a prominent Denver law firm for fourteen years. A long-time friend of John I’. Kennedy, White headed Kennedy’s preconvention presidential campaign in Colorado in 1960 and subsequently became chairman of National Citizens for Kennedy. After the election, President Kennedy named him deputy attorney general and in 1962 elevated him to the Court. As a justice, White was known as a strong advocate of school desegregation and a defender of the rights of minorities. Although more ready than his colleagues to find legislation lacking ina “rational basis” when challenged under “low-level” equal protection review, 1 also criticized his colleagues for too aggressive use of substantive due process analysis. For example, joined only by Justice Rehnquist, White dissented in Roe v. Wade, 410 U.S. 113 (1973), which held that women have a constitutionally protected liberty interest in securing abortions. White opposed many of the bela Court decisions extending new protections to criminal defendants and The dap often voted to limit the scope of those holdings. See D. Hutchinson,
© Man Who Was Whizzer White: A Portrait of Justice Byron R. White (1998).
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