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Packing the Supreme Court


ISSUE:  Spring 1986

There is no reason in the world why a president should not pack the Court—appoint people to the Court who are sympathetic to his political and philosophical principles.” So Justice William Rehnquist answered Democratic charges that the 1984 reelection of President Ronald Reagan could change the direction of Supreme Court policymaking. Because justices serve for life, they furnish a president with historic opportunities to influence the direction of national policy well beyond his own term.

The myth occasionally circulates that appointments should be made strictly on merit. But the reality is that every appointment is political. Merit competes with other political considerations, such as personal and ideological compatibility, the forces of support or opposition within Congress and the White House, and demands for representative appointments based on geography, religion, race, gender, and ethnicity.

Packing the Court has come to mean not merely filling the bench with political associates and ideological kin, but accommodating demands for other kinds of symbolic political representation. Just as some people maintain that merit rather than political favoritism should govern appointments, there are those, like Justice Harlan F. Stone, who lament that “the view has come to prevail that in addition to political considerations, considerations of race, religion and sectional interests should influence the appointment.” Yet neither merit nor representative factors such as geography, religion, race, and gender prove controlling. Instead, they are merely competing political considerations in presidential attempts to pack the Court.

President George Washington initiated the practice of appointing only ideological kin to the Court. When Thomas Jefferson won the election in 1800, President John Adams wanted to ensure the preservation of Federalist philosophy in the national government and appointed Secretary of State John Marshall as chief justice. It fell to Andrew Jackson in 1835 to appoint Marshall’s successor, and he immediately turned to his longtime supporter and Secretary of Treasury Roger B. Taney. Likewise, President Abraham Lincoln appointed his Secretary of Treasury Salmon Chase to fill Taney’s seat in 1864.

Presidents invariably let the swing of elections control appointments and make little effort to balance the Court by crossing party lines. The party affiliation of those who have served on the Court largely reflects that of their presidential benefactors: 13 Federalists, one Whig, eight Democratic-Republicans, 38 Republicans, and 42 Democrats.

Only one Democratic president has crossed party lines to fill a vacancy on the Court, Stone, a Republican, had been elevated to chief justice by Franklin D. Roosevelt. But after FDR filled eight seats with Democrats and died in the spring of 1945, President Harry Truman faced considerable pressure to name a Republican to the seat of retiring Justice Owen Roberts. Although the selection of Republican Senator Harold Burton was inspired by political pressure, Truman was perfectly comfortable with his appointment since they had been close friends for more than a decade.

Republican presidents have more frequently named Democrats but only when politically expedient or as a reward for personal and ideological compatibility. The first crossover appointment was made by President John Tyler, a nominal Whig. After several rejections of earlier nominees, he named Democrat Samuel Nelson in 1845 just before Democratic President James Polk took office. Elected by a minority of the popular vote, President Lincoln appointed California’s Stephen Field as a gesture to Northern and Western Democrats in an effort to broaden political support. Benjamin Harrison was defeated for reelection in 1892 and named Howell Jackson within days of the inauguration of Democratic President Grover Cleveland. President William Taft elevated Justice Edward White to chief justice and appointed his friend and ideological kin, Horace Lurton. His other Democratic appointee, Joseph Lamar, was the only pure crossover to achieve political balance within the Court. Presidents Warren Harding and Dwight Eisenhower appointed Pierce Butler and William J. Brennan, Jr., because of their Catholic affiliation and reportedly conservative views. Lewis Powell, a Democratic-Republican from Virginia, was likewise named for his conservative and “strict constructionist” views by Richard Nixon.

Geography used to figure prominently in appointments. During the founding period, geographical representation was considered crucial to establishing the legitimacy of the Court and the national government. Congress encouraged geographical diversity by requiring the justices to ride circuit. From the appointment of John Rutledge from South Carolina in 1789 until the retirement of Hugo Black in 1971, with the exception of the Reconstruction decade of 1866—1876, there was always a Southerner on the bench. Until 1867 the sixth seat was reserved as the “Southern seat.” Until Benjamin Cardozo’s appointment in 1932 the third seat was reserved for New Englanders.

As the country expanded westward, presidents were inclined to give representation to new states and regions. After the Civil War, the influx of immigrants and gradual nationalization of the country diminished the importance of geographical factors. Congress’s elimination of circuit riding in 1891 reinforced the declining influence of geography. A few appointments in this century turned on geography, but they were exceptional. President Taft selected Willis Van Devanter from Wyoming in 1910 because he was determined to have a Westerner on the Court. After he became chief justice, Taft continued to lobby Presidents Harding and Calvin Coolidge on the need for geographical balance on the Court.

The appointment of Wiley Rutledge in 1943 illustrates how little geography influences appointments to the modern Court. From FDR’s first appointment in 1937, Iowa law school Dean Rutledge was mentioned as a possible nominee because he was a Westerner. In 1936 before his own appointment to the high bench, Senator Hugo Black recommended him “as possible material for the Supreme Court.” But in 1939 even Black supported the president’s decision to pass over Rutledge; for “many circumstances combine to make Felix Frankfurter the only possible nominee at this time, and the balancing of the Court geographically ought to be held back till the next vacancy occurs.” Rutledge and geography were repeatedly pushed aside until FDR’s last appointment to the Court. Even then FDR had other reasons for the appointment. Justice Felix Frankfurter had made a pest of himself lobbying for the appointment of Judge Learned Hand, and Roosevelt set his mind against him. During a dinner conversation, Justice William Douglas recalls FDR saying, “Well this time your Brother Frankfurter has overplayed his hand.” He then asked, “Well, in what respect?” The president responded, “Nineteen people have seen me or called me saying that I must appoint Learned Hand. By God, I am not going to do it.” Later that evening Irving Brant, a St. Louis newspaper editor and friend of the president, came by to urge Rutledge’s nomination as he had done many times before. This time, FDR agreed, “That’s my man.”

Rutledge’s appointment shows that geography is not insurmountable. When the justice from the deep South, Hugo Black, was still on the bench, Clement Haynesworth of South Carolina and Harold Carswell of Florida were nominated. Nixon claimed Southerners “deserve representation on the Court.” But, after the Senate refused to confirm both, Nixon named Harry Blackmun from Minnesota even though his earlier appointee, Warren Burger, was from that same state. Blackmun was a conservative Republican and best man at Burger’s wedding. Burger had recommended his appointment, and in their first years on the Court together the two were known as “the Minnesota Twins.” Geography also did not dissuade Reagan from appointing Rehnquist’s former Stanford law school classmate, Sandra Day O’Connor, though both were from Arizona. Geographical diversity remains important in the selection of lower federal appellate court judges; balance is sought based on population, caseload, and the number of judges from different states within a circuit. But geographical representation on the Court is less compelling: only 31 states have been represented by the 102 members of the Court. More than half came from seven states—13 from New York, ten from Ohio; eight from Massachusetts; six each from Pennsylvania, Tennessee, and Virginia; and five from Kentucky.

II

Religion, race, and gender have historically been barriers rather than bases for appointments to the Court. The overwhelming majority (91) of the 102 justices has come from established Protestant religions: 54 from old-line faiths— Episcopalian, Unitarian, Congregationalist, and Quaker— and 37 from others, such as Baptist, Methodist, Lutheran, and Disciples of Christ. The remaining eleven include six Catholics and five Jews.

Religion has political symbolism but played little role in judicial selection until the 20th century. The so-called “Catholic seat” and “Jewish seat” were created accidentally rather than by presidential efforts to give the Court religious balance. Representation, of course, is purely symbolic. Catholics and Jews do not have well-defined positions, for example, on statutory interpretation. Nor does the appointment of a Catholic or a Jew guarantee that the views of each faith will be reflected in the voting of representative justices. Brennan, a Catholic, did not heed Church teachings when voting in Roe v. Wade (1973) to uphold a woman’s rights to obtain an abortion. Religious and racial considerations, moreover, appear “highly indefensible and dangerous” to the extent that more qualified individuals are passed over. Frankfurter contended that such considerations, are “not only irrelevant for appointments to the bench, but mischievously irrelevant— that to appoint men on the score of race and religion [is] playing with fire.”

The first Catholic, Chief Justice Roger Taney, was appointed in 1835, but religion had little to do with Jackson’s selection of his friend and advisor. Thirty years after Taney’s death the next Catholic was named. Edward White was appointed in 1894, but again religion played little role, though in 1910 President Taft was urged to promote him to chief justice because he “is a democrat, a Catholic, and is from the South.” From White’s appointment until 1949 there was always one, and usually two, Catholics on the Court: Joseph McKenna served from 1898 to 1925, Pierce Butler from 1922 to 1939, and Frank Murphy from 1940 to 1949. For more than 30 years (from 1894 to 1925) there were two Catholics on the bench, even though Catholics lacked the political influence they later assumed in the New Deal coalition. Roosevelt rewarded Catholic supporters with an unprecedented number of lower federal court judgeships, but he did not do the same with his appointments to the Court. When Murphy died in 1949, Truman did not feel compelled to appoint another Catholic. None sat on the high bench until Eisenhower’s appointment of Brennan in 1956. Devoted to bipartisanship, Eisenhower wanted “a very good Catholic, even a conservative Democrat” in order to “show that we mean our declaration that the Court should be nonpartisan.”

In 1853 President Millard Fillmore offered a position to Judah Benjamin, but he wanted to stay in the Senate. Not until President Woodrow Wilson’s appointment of Brandeis in 1916 did the Court acquire its first Jewish justice. Opposition was not necessarily anti-Semitic but largely based on antagonism toward Brandeis’ progressive legal views and reform politics. Seven prior ABA presidents—including William Howard Taft—proclaimed that Brandeis “is not a fit person to be a member of the Supreme Court of the United States.” After Brandeis was named, there developed a Jewish seat expectation. With the confirmation of Cardozo in 1932 and then with his replacement Frankfurter, two Jewish justices sat on the Court until Brandeis retired in 1939. When Frankfurter stepped down in 1962, the Jewish factor mattered, and President John F. Kennedy named Arthur Goldberg, his secretary of labor. Three years later President Lyndon Johnson persuaded Goldberg to become ambassador to the United Nations, and his vacancy was filled by the president’s friend, Abe Fortas. Since Fortas’ resignation in 1969, no other Jew has sat on the Court.

Although politicially symbolic, religious representation on the Court never amounted to a quota system. Catholics and Jews were more often selected because of personal and ideological compatibility with the president. “There is no such thing as a “Jewish seat,”” Goldberg observed, though his religion was a factor that Johnson considered when coaxing him to leave the Court. “The question of whether or not this appointee should be Jewish concerns me,” Attorney General Nicholas Katzenbach told the president:

I think most Jews share with me the feeling that you should not seek a Jewish appointment for the “Jewish seat” on the Court. It is somewhat offensive to think of religion as a qualification, and you will recall that after Mr. Justice Murphy’s death there was not a Catholic on the Court for a period of eight years. At the same time, I think it undesirable for there to be no Jews on the Court for too long a period and I think it would be desirable if a Jew were appointed to the Court before 1968 . . . . On balance, I think, if you appoint a Jew he should be so outstanding as to be selected clearly on his own merits as an individual.

Johnson was intent on naming Fortas, regardless of his religion. The two had known each other since the New Deal, and in 1964 LBJ had unsuccessfully urged Fortas to become attorney general. Fortas also initially declined appointment to the Court because, as he explained to the president, “I want a few more years of activity.” Johnson persisted, and Fortas finally reluctantly agreed to enter the marble temple.

“The time has come” for the appointment of a black to the Court, Johnson’s advisors told him in 1967. The symbolism of appointing a black was never lost on the president, nor had LBJ’s commitment to appointing Thurgood Marshall ever waned. As director of the NAACP Counsel of Legal Defense and Education Fund, Marshall gained national recognition arguing the landmark school desegregation case, Brown v. Board of Education (1954). In 1961, Kennedy named him to the court of appeals for the second circuit. Subsequently, Johnson convinced him to give up the judgeship and become his solicitor general. LBJ wanted “that image, number one” of a black solicitor general, recalls Marshall. The president told him at the time, “You know this has nothing to do with any Supreme Court appointment. I want that distinctly understood. There’s no quid pro here at all. You do your job. If you don’t do it, you go out. If you do it, you stay here. And that’s all there is to it.” That, of course, was not all there was to it. The solicitor generalship offers experience in representing the government before the Court and a strategic basis for elevation to the high bench. As Cornelius Vanderbilt, Jr. recognized, when congratulating the president on the appointment, “This is great news! Also it is very clever politics.”

Marshall was not the first black to be seriously considered for the Court. Twenty years earlier rumors had circulated that William Hastie might be named. Dean of Howard University Law School and later a court of appeals judge, Hastie was given more serious consideration during the Kennedy administration. Attorney General Robert Kennedy recalled that Hastie was his first choice for the vacancy eventually filled by Byron White. Kennedy talked with both Earl Warren and William Douglas about the nomination. Warren “was violently opposed to having Hastie on the Court,” according to Kennedy. “He’s not a liberal, and he’ll be opposed to all the measures that we are interested in, and he would just be completely unsatisfactory,” “Hastie is a very fine person,” Douglas observed, but “he is sort of a pedestrian type of person, very conservative.” Based on merit, presidential advisor Jim Rowe and others argued that Hastie deserved the appointment, since he was “much more of a legal scholar than Marshall.” But the Kennedys decided against the nomination. They had just suffered defeat of their proposed Department of Housing and Urban Development due to the “political error” of announcing that, if the department were established, Robert Weaver would be named as secretary and become the first black cabinet member. Such opposition to the naming of blacks to prominent government posts reinforced Johnson’s commitment to appoint Marshall. There were other leading blacks, but Johnson felt that Marshall had paid his political dues.

Political pressure for the appointment of a woman built for decades and escalated in the 1970’s with the battle over adopting the Equal Rights Amendment to the Constitution. During the Truman administration, respected federal court of appeals Judge Florence Allen was mentioned for an appointment. Later Johnson was urged to consider Barbara Jordan or Sarah Hughes, among other women. Nixon also considered nominating a woman. But he claimed “that in general the women judges and lawyers qualified to be nominated for the Supreme Court were too liberal to meet the strict constructionist criterion” he had set for his appointees. In fact, Nixon submitted the name of Judge Mildred Little to the ABA judiciary committee in 1971, but she was unanimously ranked “not qualified.” Ford’s advisors compiled a list of more than 20 women attorneys and judges—including Sandra Day O’Connor—for possible nomination to the vacancy created by the retirement of Douglas.

In 1980 Reagan made a campaign promise to appoint a woman. Less than a year later he fulfilled that pledge by naming Sandra Day O’Connor. In May 1981 Justice Potter Stewart privately told the president that he would retire at the end of the Term. A two-month search concluded with a woman who shared Reagan’s view that “the role of the courts is to interpret the law, not to enact new law by judicial fiat.” O’Connor had risen through the ranks of Republican politics, from assistant state attorney general, to the Arizona state senate, where she was majority leader, and to a state appellate court judgeship. Her nomination was supported by both senators from Arizona and Chief Justice Burger and Justice Rehnquist. Democratic Representative Morris Udall endorsed her nomination as “about as moderate a Republican as you’ll ever find being appointed by Reagan.” And the president of the National Organization for Women, Eleanor Smeal, claimed “a major victory for women’s rights.”

Religion, race and gender are politically symbolic and largely reflect changes in the electorate. In the future, such considerations are likely to compete with expectations for more ethnic representation on the Court—for the appointment of an Italian, Hispanic, or Asian. Still, they will remain less important than personal and ideological compatibility in presidential attempts to pack the Court.

III

The presidential impulse to pack the Court with politically compatible justices is irresistible. The “tendency to choose a known, rather than an unknown evil,” as Justice Harlan Fiske Stone put it, “can never be eliminated from the practical administration of government.” Yet, Court packing depends on the politics of the possible—on presidential prestige and political expediency. The politics of packing the Court are well illustrated by the appointments made by Presidents Roosevelt, Truman, Eisenhower, and Nixon.

With the exception of George Washington, no president has had more opportunities to pack the Court than Franklin Roosevelt. He made eight appointments and elevated Justice Stone to the chief justiceship. Although Nixon later achieved remarkable success in remolding the Court in his own image with his four appointments, Roosevelt succeeded more than any other president in packing the Court. Moreover, perhaps no other president before Nixon had as great a contempt for the Court. Nixon vehemently opposed the “liberal jurisprudence” of the Warren Court and named only those who he believed shared his “strict constructionist” philosophy. Roosevelt attacked the conservative economic politics of the Court in the 1930’s for thwarting the country’s recovery from the Great Depression.

During FDR’s first term, the Court invalidated most of the early New Deal program. Yet the president had no opportunity to fill a seat on the bench. After his landslide reelection in 1936, Roosevelt proposed judicial reforms allowing him to expand the size of the Court to 15 by appointing a new member for every justice over 70 years of age. In the spring of 1937 when the Senate Judiciary Committee was debating his “Court-packing plan,” the Court abruptly upheld major pieces of New Deal legislation. The Court had been badly divided five to four in striking down progressive New Deal measures. Sutherland, McReynolds, Butler, and Van Devanter—the “Four Horseman”—voted together against economic legislation, while Stone and Cardozo followed Brandeis in supporting progressive economic legislation. Hughes and Roberts were the “swing votes,” with the latter more conservative justice casting the crucial fifth vote to strike down FDR’s programs. Roberts then changed his mind. In March he abandoned the Four Horsemen in West Coast Hotel Co. v. Parrish (1937) to uphold Washington state’s minimum-wage law. Two weeks later, in National Labor Relations Board v. Jones & Laughlin Steel Corporation (1937), he again switched sides to affirm a major piece of New Deal legislation, the National Labor Relations Act. The Court’s “switch-in-time-that-saved-nine” was widely speculated to have been due to FDR’s Court-packing plan. But even though the rulings did not come down until the spring, Roberts had switched his vote at a conference in December 1936, two months before FDR announced his plan. The reversal of the Court’s position nonetheless contributed to the Senate Judiciary’s rejection of FDR’s proposal in May. Then Willis Van Devanter—one of the president’s staunchest opponents—told the president that he would resign at the end of the term. FDR had the first of eight appointments in the next six years to infuse his own political philosophy into the Court. While his plan to enlarge the size of the Court failed, FDR eventually succeeded in packing the Court.

The president was angry at the Senate for defeating his plan to enlarge the Court and at the Court for destroying his program for recovery. For his first appointment, FDR chose Senator Hugo Black, who had led the unsuccessful fight for the Court-packing plan. Roosevelt, recalls Justice Robert Jackson, wanted to “humiliate [the Senate and the Court] at a single stroke by naming Black.” Only in extraordinary circumstances would the Senate refuse to confirm one of its own. “The Senate would have to swallow hard and approve,” Jackson observed. “The Court would be humiliated by having to accept one of its most bitter and unfair critics and one completely alien to the judicial tradition.”

At Black’s confirmation hearings, rumors began to circulate that he had been a member of the Ku Klux Klan in the mid-1920’s—when the Klan was identified with populism and its membership reached a height of more than four million and virtually assured the election of Democrats in the deep South. When evidence showing Black’s prior Klan membership materialized after his confirmation, the revelation confirmed for many that the appointment had been an act of revenge. Roosevelt claimed “that he had not known of any Klan link when he appointed Black to the Court.” Black went on national radio to explain briefly, though not apologize for, his membership from 1922 to 1925 in the Klan. Despite the denial of knowledge of the KKK association, Roosevelt must have known. Black, moreover, left a note in his private papers to “correct for posterity any idea about Pres, Roosevelt’s having been fooled about my membership in the Klan.” As he recollected:

President Roosevelt, when I went up to lunch with him, told me that there was no reason for my worrying about having been a member of the Ku Klux Klan. He said that some of the best friends and supporters he had in the State of Georgia were strong members of that organization. He never in any way, by word or attitude, indicated any doubt about my having been in the Klan nor did he indicate any criticism of me for having been a member of that organization. The rumors and statements to the contrary are wrong.

Roosevelt’s subsequent appointments all turned on the ideological litmus test of support for the New Deal. When conservative Westerner George Sutherland retired in 1938, the president momentarily considered nominating another senator, either South Carolina’s James Byrnes, later appointed in 1941, or Indiana’s Sherman Minton, who was forced to await Truman’s selection in 1949, But he worried about taking too many supporters from the Senate. Attorney General Cummings urged the elevation of Solicitor General Stanley Reed. Reed was from Kentucky, and the president initially felt, “Well, McReynolds is from Kentucky, and Stanley will have to wait until McReynolds is no longer with us.” Cummings countered that McReynolds was “closely identified with New York City” due to his earlier law practice, and Reed’s record justified his nomination. Roosevelt agreed, “Tell Stanley to make himself so disagreeable to McReynolds that the latter will retire right away.”

Reed joined the Court in 1938, but McReynolds did not retire until 1941 and the pressure for an appointee from the West steadily grew. In 1938 Cardozo died. The vacancy would be hard to fill, for “Cardozo was not only a great Justice, but a great character, a great person and a great soul . . . held in reverence by multitudes of people and,” Cummings observed, “whoever followed him, no matter how good a man he might be would suffer by comparison.” Roosevelt long contemplated appointing Frankfurter to Brandeis’s seat. Anticipating “a terrible time getting Frankfurter confirmed,” he had earlier unsuccessfully urged Frankfurter to become solicitor general. “I want you on the Supreme Court, Felix, but I can’t appoint you out of the Harvard Law School. What will people say? “He’s a Red. He’s a professor. He’s had no judicial experience.” But I could appoint you to the Court from the Solicitor General’s office.” When Cardozo died, he at first told Frankfurter, “I’ve got to appoint a fellow west of the Mississippi—I promised the party leaders he’d be a Westerner the next time.” A number of Westerners were considered, but FDR found lesser-known candidates unacceptable. Frankfurter was appointed, despite criticism of having two Jews and an excessive number of justices from the Atlantic seaboard on the Court.

Geography did not dissuade Roosevelt from then filling Brandeis’s seat in 1939 with his Securities and Exchange Commission Chairman William O. Douglas. At first Senator Lewis Schwellenbach was considered, but opposition emerged from the other senator from the state of Washington. Frank Murphy had replaced Cummings as attorney general and urged the president to disregard pressure for a Westerner. “Members of the Supreme Court are not called upon nor expected to represent any single interest or group, area or class of persons,” Murphy insisted. “They speak for the country as a whole. Considerations of residential area or class, interest, creed or racial extraction ought therefore be subordinate if not entirely disregarded.” Brandeis had recommended Douglas. Born in Minnesota and raised in Yakima, Washington, Douglas claimed Connecticut as his legal residence because he had taught at Yale Law School before joining the SEC. There was accordingly opposition to naming another non-Westerner, but powerful Senate leaders like Idaho’s William Borah endorsed the nomination. And Douglas noted, “when Roosevelt named me he didn’t name me from the State of Washington, but he stuck to the record, and named me from Connecticut.”

When mid-Westerner Pierce Butler died in 1939, there was even greater pressure to appoint a Westerner and a Catholic. Butler was a Catholic, and Catholics were a crucial part of the New Deal coalition. Roosevelt settled on his Attorney General Murphy—a Catholic, affable “Irish mystic” and former governor of Michigan. Murphy’s mid-Western Catholic background, however, was only a politically useful rationalization. More important, morale within the Department of Justice was abysmally low. Murphy was not intellectually equipped to handle the position of attorney general. White House Press Secretary Stephen Early, among others, viewed him “as a complete washout.” His appointment was another example of the president’s lack of concern for the Court. Roosevelt was not unaware of Murphy’s faults. Assistant Attorney General Robert Jackson told him, “Mr. President, I don’t think that Mr. Murphy’s temperament is that of a judge.” His elevation to the Court was nevertheless politically opportune. The president explained to Jackson, “It’s the only way I can appoint you attorney general.”

Roosevelt promised later to make Jackson chief justice if he accepted the attorney generalship. Jackson reluctantly agreed. In 1941 McReynolds retired, and Chief Justice Hughes informed the president that he would step down at the end of the term, FDR had the opportunity to fill two more seats and to appoint Jackson. Hughes suggested that the chief justiceship go to Stone. He had long aspired to the position and been disappointed because his friend President Hoover passed him over when appointing Hughes. Frankfurter preferred Jackson but agreed “Stone is senior and qualified professionally to be C.J.” He also told FDR that elevation of Stone—a Republican—would also inspire confidence in him “as a national and not a partisan President.” In July Senator Byrnes was named to McReynolds’ seat, Stone elevated to chief justice, and Jackson nominated as associate justice. When trying to mollify Jackson, the president explained that Stone was within a couple of years of retirement.

“I will have another chance at appointment of a Chief Justice, at which time you’d already be over there [in the Court] and would be familiar with the job.” At the moment the arrangement appeared politically advantageous: “one Republican for Chief Justice and two Democrats will not be too partisan.” Roosevelt, however, made his last appointment little over a year later. Byrnes was persuaded to leave the Court to become director of the Office of Economic Stabilization, and Rutledge got his seat on the Court.

Roosevelt’s appointments illustrate the importance of presidential prestige. FDR was able to overcome pressures imposed on other presidents for political, geographic, and religious representation on the Court. He turned a conservative Court into a liberal one and changed the direction of the Court’s policy-making. As a legacy of FDR’s liberalism, Black and Douglas remained on the Court until the 1970’s and helped forge the Warren Court’s rulings on school desegregation, reapportionment, and criminal procedure.

Chief Justice Stone’s death in 1946 presented a readymade controversy over a successor, but President Truman found a politically expedient solution. The Roosevelt Court had become badly divided. Black led the liberals—Reed, Douglas, Murphy, Rutledge, and Burton—against Jackson and Frankfurter, who tended to advance the basic conservativism of Roberts and Stone. The Black-Jackson disputes were deep-seated, ideological, and personal. When Stone died, senior Associate Justice Black temporarily assumed the responsibilities of chief justice. Long laboring under Roosevelt’s promise to make him chief justice, Jackson immediately became vindictive, convincing himself that his rival would be made chief justice. Unpersuaded by the president’s assurances that he had not talked with Black about the position, Jackson later released publicly a telegram sent to the chairman of the House and Senate Judiciary Committees attacking Black and airing the animosities within the Court.

Outraged by the Black-Jackson controversy, Truman lamented that “the Supreme Court has really made a mess of itself.” He decided to appoint his friend Fred Vinson. Roosevelt had appointed Vinson to the Court of Appeals for the District of Columbia in 1938 and later director of the Office of Economic Stabilization during World War II. In 1945 Truman successively made him Federal Loan Administrator, director of the Office of War Mobilization and Reconversion, and, finally, Secretary of the Treasury, Vinson was a loyal friend and experienced politician with “an uncanny knack of placating opposing minds.” That was precisely what Truman thought that Court needed: an outsider and proven negotiator rather than an insider and legal scholar. What the Court needed was someone to keep the justices in line. As William Rogers, Eisenhower’s deputy attorney general, later observed, “Fred Vinson would not have been on the Court but for the fact that he was a successful politician.”

The appointments of Chief Justices Earl Warren and Warren Burger both sprang from the 1952 Republican Convention. Why did Eisenhower appoint Warren? Douglas, among others, insisted that Vice President Nixon and California Senator William Knowland viewed Warren—an extremely popular governor with bipartisan support in California— as “an unorthodox, off-beat kind of Republican.” They “went to Eisenhower when Vinson died and urged that Eisenhower name Warren as Chief Justice because Nixon and Knowland wanted to get Warren out of the State of California so that they could take over the Republican machine.” It may well have been that Nixon and Knowland found the nomination fortuitous, but the story is too simple to be true. Shortly after the election in November 1952, Eisenhower indicated to Warren that he could have the “first vacancy” on the Court. Later, in the summer of 1953, he persuaded Warren to leave the governorship and become solicitor general so as to gain experience arguing cases before the Court. When Vinson died that summer, his job was immediately offered to Warren.

Eisenhower was committed to appointing Warren because he “was firmly convinced the prestige of the Supreme Court had suffered severely in prior years, and that the only way it could be restored was by the appointment to it of men of nationwide reputation, of integrity, competence in the law, and in statesmanship.” He also refused to appoint anyone over 64 years of age, and that barred several prominent jurists. As California’s favorite-son candidate for the presidency in 1952, Warren had “national stature” and, in Eisenhower’s opinion, “unimpeachable integrity,” “middle-of-the-road views,” and “a splendid record during his years of active law work” as state attorney general. “If the Republicans as a body should try to repudiate” his appointment, the president vowed, “I shall leave the Republican Party and try to organize an intelligent group of independents, no matter how small.”

Warren’s popularity and role in the 1952 Republican Convention impressed Eisenhower. But what happened at that convention also set the political stage for the eventual appointment of Warren Burger as chief justice. General Eisenhower and Senator Robert Taft (son of Justice William Taft) were leading contenders, though it remained uncertain right up to the convention who would win the nomination. Herbert Brownell, Eisenhower’s campaign manager, was convinced that his candidate could not win without the support of favorite-son candidates Warren of California and Harold Stassen of Minnesota. Just before the convention opened, a dispute arose over whether contested delegates could vote on their seating at the convention. If they were allowed to vote, Brownell believed, Taft would have the nomination. If they were denied, no candidate could win a majority on the first ballot, but Eisenhower’s chances of getting the nomination would be better. Brownell proposed and secured a “fair play” amendment to the rules of the convention, forbidding any contested delegate from voting, with the result that before the convention opened the Taft candidacy began to disintegrate. During negotiations over the “fair play” amendment Brownell and Stassen’s campaign manager, Warren Burger, came to know and admire each other. When it then looked as though Eisenhower could win the nomination on the first ballot if either the California or Minnesota delegations swung over, Burger and others urged Stassen to turn his delegates over to Eisenhower. Stassen “objected strenuously to it,” and his advisor Bernard Shanley recalls telling him “it was going to happen whether he liked it or not.” Toward the end of the first roll-call vote, Stassen released the Minnesota delegation to Eisenhower, giving him a first ballot nomination, while members of the California delegation continued to support Warren.

Warren’s “statesmanship” at the convention impressed Eisenhower and, since he had not turned over any of his delegates “there was no possibility of charging that his appointment was made as payment for a political debt.” Stassen and his advisors went into the Eisenhower-Nixon administration: Stassen as head of foreign aid, Shanley as special counsel to the president, and Burger as assistant attorney general under Attorney General Brownell. Burger further developed a warm friendship with Brownell and in 1956 was appointed to the prestigous Court of Appeals for the District of Columbia Circuit.

In 1969 President Nixon’s first choice to fill the seat of retiring Chief Justice Warren was Brownell. But, since Brownell “had been Eisenhower’s Attorney General in 1957 at the time of the Little Rock school crisis,” he concluded that confirmation would be difficult, for “many Southerners were still deeply embittered by his role in the use of federal troops to enforce integration.” Nixon’s Attorney General John Mitchell told Brownell that “confirmation would be messy,” and the latter withdrew from consideration. Nixon could not nominate Mitchell since that would open him to charges of “cronyism”—a charge that Republicans had just used to defeat Johnson’s effort to promote Fortas to chief justice. The battle over Fortas hurt the morale of the Court. Justice Potter Stewart, another Eisenhower appointee, told the president that under the circumstances it would be unwise for him to be elevated to the position. Nixon also thought about appointing former New York Governor Thomas E. Dewey, but he was too old. The president wanted someone who had judicial experience but was young enough to serve for at least ten years. Most importantly, he wanted someone who shared his own “strict constructionist” philosophy of constitutional interpretation. The president knew Burger from the days of the Eisenhower administration and had read his speeches on law and order. But Nixon was not close to Burger, and so his nomination would not raise charges of cronyism. After conferring with Mitchell, Brownell, and others, he named Burger as Warren’s successor.

Events set in motion by the 1952 Republican Convention, combined with perceived presidential compatibility and political expediency, made Warren and then Burger chief justice. Warren’s Court revolutionized constitutional law and American society: first, with the unanimous school desegregation ruling Brown v. Board of Education in 1954, later in 1962 with the ruling in Baker v. Carr announcing the reapportionment revolution guaranteeing equal voting rights, and with a series of rulings on criminal procedure that extended the rights of the accused. Eisenhower later called his appointment of Warren “the biggest damn-fooled mistake” he ever made. Nixon sought to rectify the mistake. Burger came to the Court with the agenda of reversing the “liberal jurisprudence” of the Warren Court and restoring “law and order.”

IV

“Whenever you put a man on the Supreme Court he ceases to be your friend. I’m sure of that.” Lamenting that “packing the Supreme Court simply can’t be done,” Truman confessed, “I’ve tried and it won’t work.” Like other disappointed presidents, Truman felt he misjudged his appointees. “Tom Clark was my biggest mistake. No question about it.” With characteristic bluntness, he expressed his disillusionment:

That damn fool from Texas that I first made Attorney General and then put on the Supreme Court. I don’t know what got into me. He was no damn good as Attorney General, and on the Supreme Court . . .it doesn’t seem possible, but he’s been even worse. He hasn’t made one right decision that I can think of. . . . It’s just that he’s such a dumb son of a bitch.

In a letter to Douglas, Truman further explained that he could not “see how a Court made up of so-called “Liberals” could do what that Court did to me” in Youngstown Sheet & Tube v. Sawyer (1952). Six members—including two of his appointees, Clark and Burton—held that he had exceeded his power by seizing steel mills in order to avert a nationwide strike that, he claimed, threatened the country’s war effort in Korea. Vinson and Minton, his other two appointees, dissented along with Reed. The ruling was Truman’s “Dred Scott decision.” He felt it “seriously hamstrung” the modern presidency.

Clark’s desertion was especially troubling since earlier as attorney general Clark had advised Truman that he had the power to deal with such emergencies. Yet that was not the first time that an appointee changed his mind on an important constitutional question after coming to the Court. Lincoln’s Secretary of the Treasury Salmon Chase wrote the Legal Tender Acts, which allowed the use of paper money to repay the Union’s debts incurred in the Civil War. But after his confirmation as chief justice, he struck them down in Hepburn v. Griswold (1870), and then dissented when a new majority overturned that decision a year later in the Legal Tender Cases (1871). Justice Jackson likewise reversed himself on a position he had taken as attorney general, explaining simply that, “The matter does not appear to me now as it appears to have appeared to me then.”

Like most presidents, Truman expected loyalty. Clark was considered part of Truman’s “official family,” and his sense of personal betrayal ran deeper than disagreement with Youngstown. In the fall of 1953 after Truman left office, Attorney General Brownell continued the 1952 Republican campaign attack against the Roosevelt-Truman administration for being soft on Communism. Brownell charged that Harry Dexter White, a former assistant under Secretary of the Treasury Vinson, was a Soviet spy. Brownell, countered Truman, “lied” and “fully embraced, for political advantage, McCarthyism.” The House Un-American Activities Committee subsequently subpoenaed Truman, and he refused to testify. Clark, who as attorney general had approved all White House appointments, not only refused to testify, but to defend publicly the president. In 1949, Justices Reed and Frankfurter testified as character witnesses in Alger Hiss’ trial for perjury and espionage. Frankfurter claimed it was his “duty” to testify for his former student and clerk to Justice Oliver Wendell Holmes. Other justices strongly objected to members of the Court appearing at trials or before congressional investigating committees. But Truman could not accept Clark’s refusal to stand up for him when Brownell issued his attack.

Justices frequently disappoint their presidential benefactors. Two years after joining the Court, Holmes disappointed President Theodore Roosevelt by voting against his administration’s antitrust policies. The president was prompted to observe that he “could carve out of a banana a Judge with more backbone than that!” Franklin Roosevelt “thought that Judge Frankfurter was going to be a flaming liberal, but he turned out in many areas to be a rank conservative.” Justice Clark also related how Eisenhower was “very much disturbed over Chief Justice Warren and Justice Brennan.” Byron White disappointed the Kennedys. Nixon was surprised when Burger voted in United States v. Nixon (1974) to deny his claim of executive privilege as a shield against turning over the “Watergate tapes.” And Blackmun undoubtedly also proved a disappointment because of his authorship of the ruling on abortion in Roe v. Wade.

Presidential efforts to pack the Court are only partially successful for a number of reasons. “Neither the president nor his appointee can foresee what issues will come before the Court during the tenure of the appointees,” Justice Rehnquist points out. “Even though they agree as to the proper resolution of [past or] current cases, they may well disagree as to future cases involving other questions when, as judges, they study briefs and hear arguments. Longevity of the appointees, or untimely deaths such as those of Justice Murphy and Justice Rutledge, may also frustrate a president’s expectations; so also may the personal antagonism developed between strong willed appointees of the same president.” Fundamentally, presidents are disappointed because they fail to understand “that the Supreme Court is an institution far more dominated by centrifugal forces, pushing towards individuality and independence, than it is by centripetal forces pulling for hierarchical ordering and institutional unity.”

There is no denying that presidents influence Supreme Court decision-making through their appointments. One or two appointments can make a crucial difference in the direction of Supreme Court policy-making. But life in the marble temple also frustrates presidential attempts to influence the Supreme Court. “The Court functions in a way,” Jackson concluded, “that is pleasing to an individualist.” Each justice gets to the Court “under his own steam” and, Douglas observed, becomes “a sovereign in his own right.” Unlike the presidency, the Court does not have a “mission.” Phrases like “the Court as an institution” and “the Court as a team,” Frankfurter concluded, amount to question-begging cliches. Each member serves justice in his or her own way. When Blackmun first arrived at the Court, for example, he voted almost 90 percent of the time with Burger, his old friend and fellow Nixon-appointee. But Blackman now votes on more than 70 percent of the cases with Brennan, the Court’s most liberal member. Justices change and react differently to life in the marble temple.

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