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Life Before the Court
Generation Gaps
Length of Service
Features

All of President Washington's appointees were lawyers, and no president has deviated from this precedent. Legal education has changed radically over the years, however. Until the mid-nineteenth century, it was traditional for aspiring lawyers to study privately in a law office until they had learned the law sufficiently to pass the bar. There were no law schools as such in the early years, although some universities had courses in law. John Marshall attended a course of law lectures at William and Mary College in the 1770s. Two of the earliest justices, John Rutledge and John Blair, received their legal education in England, at the Inns of Court. Frank Murphy, on the Court from 1940 to 1949, also studied there. Three justices, Henry Baldwin, Levi Woodbury, and Ward Hunt, attended law lectures by Federalist judge Tapping Reeve in Lichtfield, Connecticut.

The first justice to receive a law degree from an American university was Benjamin Curtis, who was graduated from Harvard in 1832. It was not until 1957 that the Supreme Court was composed entirely of law school graduates. Before that, many had attended law school but had not received degrees. The last justice never to have attended law school was James F. Byrnes, who served from 1941 to 1942. The son of poor Irish immigrants, Byrnes was not even a high school graduate. He left school at the age of fourteen, worked as a law clerk, and eventually became a court stenographer. Reading law in his spare time, Byrnes passed the bar at the age of twenty-four. The last justice not to have a law degree was Stanley F. Reed, who served from 1938 to 1957. He attended both the University of Virginia and Columbia law schools, but received no law degree.

The justices of today not only received their law degrees, but also nearly all of them attended a handful of Ivy League schools, led by Harvard and Yale. In 2009 only Justice John Paul Stevens, a graduate of Northwestern, did not hail from an Ivy League law school. Among his colleagues, four graduated from the Harvard Law School, and three from Yale. The other, Ruth Bader Ginsburg, attended Harvard Law, but finished her studies at Columbia.

Life Before the Court

Most justices were politicians or judges before coming to the Supreme Court. In fact, only one justice, George Shiras Jr., had never engaged in political or judicial activities before his appointment. Until the mid-twentieth century, most justices had a background in politics, either as candidates or as an appointed officeholder. Since then, most members of the Court have had professional experience as lawyers or judges, and political experience is rare. When Justice Sandra Day O'Connor retired in 2006, she was the last of the sitting justices to have been elected to a political office, having served in the Arizona state legislature.

All except two of President Washington's appointees had state judicial experience. Washington believed such experience was important for justices of the new federal court. But not until 1826 was a federal judge appointed to the Court. Robert Trimble had served nine years as a U.S. district judge before being elevated to the Supreme Court.

Even after Trimble's appointment, judges with federal judicial experience continued to be a rarity on the Court. By 1880 only two other federal judges, Philip P. Barbour in 1836 and Peter V. Daniel in 1841, had been selected. After 1880, when federal circuit judge William Woods was appointed, the pace picked up, and federal judicial experience became a more important criterion for appointment to the Supreme Court. When Chief Justice William H. Rehnquist led the Court in the 1990s, he was its only member not to have served as a judge prior his appointment.

Many justices had political careers, serving in Congress, as governors, or as members of a cabinet. One president, William Taft, was later appointed to the Court, as chief justice, in 1921. As of 1995, a fourth of all justices, twenty-seven, had served in Congress before their elevation to the Court. An additional six justices sat in the Continental Congress in the 1770s or 1780s.

The first justice with congressional background was William Paterson, who had served in the Senate from 1789 to 1790. Chief Justice John Marshall was the first justice with cabinet experience, having held the post of secretary of state from 1800 to 1801. Only a few justices have come directly from Congress to the Court: Rep. James Wayne in 1835; and Sens. John McKinley in 1837, Levi Woodbury in 1846, Edward White in 1894, Hugo L. Black in 1937, and Harold H. Burton in 1945.

The Senate traditionally has confirmed its own members without much debate. But in January 1853, when lame-duck president Millard Fillmore nominated Whig senator George Badger of North Carolina to the Court, the Democratic Senate postponed the nomination until the close of the congressional session in March, giving the new Democratic president, Franklin Pierce, the chance to nominate his own man. The postponement of Badger's nomination was a polite way of defeating a colleague's nomination, avoiding an outright rejection.

Senator White's nomination came about after a bitter quarrel between President Grover Cleveland and Sen. David B. Hill of New York resulted in the Senate's rejection of two Cleveland nominees from New York. Cleveland then turned to the Senate for one of its own members—Edward White—and that body quickly approved him. (See “Senatorial Courtesy,” pp. 891–892.)

Hugo Black's 1937 nomination was surrounded by controversy. Sen. Joseph T. Robinson of Arkansas, the Senate majority leader who had led the fight for President Franklin D. Roosevelt's so-called Court-packing plan, was expected to get the nomination, but he died suddenly. Roosevelt picked Black, one of the few southern senators other than Robinson who had championed the president in the Court battle. Black's support of the controversial bill—plus what some felt was his general lack of qualifications for the Supreme Court—led to a brief but acrimonious fight over his nomination. After he was confirmed, publicity grew over his onetime membership in the Ku Klux Klan, and charges were made that he was still a member. In a nationwide radio address, Black denied having any racial or religious intolerance and defused the criticism.

The last Supreme Court appointee with any previous congressional service was Sherman Minton in 1949. He had served as a U.S. senator from Indiana from 1935 to 1941, then was appointed to a circuit court of appeals judgeship. Since Justice Black's retirement in 1971, no Supreme Court member has had any congressional experience.

John Adams appointed his secretary of state, John Marshall, to the Court, and twenty-two other cabinet members have become justices, thirteen of them appointed while still serving in their posts. Heading the list of cabinet positions that led to Supreme Court seats is U.S. attorney general. Nine attorneys general, including seven incumbents, have been appointed to the Court. Next come secretaries of the Treasury (four), secretaries of state (three), and secretaries of the Navy (three). One postmaster general, one secretary of the interior, one secretary of war, and one secretary of labor have been appointed to the Court.

The appointment of incumbent attorneys general was largely a twentieth-century phenomenon, at least for the first half; six of the seven appointments occurred after 1900. The other occurred in 1897, when President William McKinley appointed his attorney general, Joseph McKenna. The twentieth-century incumbents named to the Court were William H. Moody, appointed by Theodore Roosevelt in 1906; James C. McReynolds (Wilson, 1914); Harlan Fiske Stone (Coolidge, 1925); Frank Murphy (Franklin Roosevelt, 1940); Robert H. Jackson (Roosevelt, 1941); and Tom C. Clark (Truman, 1949).

During the nineteenth century two men who had served as attorney general were elevated to the Supreme Court, but after their cabinet service. They were Roger B. Taney, appointed chief justice by President Andrew Jackson in 1835, after serving as Jackson's attorney general from 1831 to 1833, and Nathan Clifford, appointed to the Court by President James Buchanan in 1857 after service as James K. Polk's attorney general from 1846 to 1848. The last justice with cabinet experience was Clark, who served on the Court from 1949 to 1967.

The noncabinet post of solicitor general in the Justice Department also has been a stepping stone to the Court. Five justices—William Taft, Charles Evans Hughes, Stanley Reed, Robert Jackson, and Thurgood Marshall—had served as the government's advocate before the Court before their appointments.

Six justices had served as governor of their state. The first was William Paterson, governor of New Jersey from 1790 to 1793. The most recent—and the most famous—was California governor Earl Warren, appointed chief justice by President Eisenhower in 1953. Warren had a long political career behind him, having served as attorney general of California before winning three terms as governor. In 1948 he was the Republican nominee for vice president and ran a brief campaign for the presidential nomination in 1952.

Charles Evans Hughes of New York was appointed to the Court by President Taft in 1910. Hughes was a reform governor who had conducted investigations into fraudulent insurance practices in New York before being elected governor in 1906. He left the Court in 1916 to run for president on the Republican ticket, losing narrowly to Woodrow Wilson. Later he served as secretary of state under Harding and Coolidge and returned to the Court in 1930 as chief justice, appointed by President Hoover.

The three other former governors appointed to the Court were Levi Woodbury of New Hampshire in 1846 (governor, 1823–1824), Salmon P. Chase of Ohio in 1864 (governor, 1856–1860), and Frank Murphy of Michigan in 1940 (governor, 1937–1939). One chief justice, John Jay, left the Court to become governor of New York.

James Byrnes followed Jay's path, leaving the Court in 1942, after only sixteen months in the post, for other positions in federal and state government, the last of which was that of governor of South Carolina, an office he held from 1951 to 1955.

Generation Gaps

The age at which justices join the Court varies widely. Oldest at the time of his initial appointment was Horace H. Lurton, who was sixty-five when he went on the Court in 1910. Two chief justices were older than that when they achieved their office, but they had previously served on the Court: in 1941 Stone was sixty-eight, and in 1930 Hughes was sixty-seven.

Representing the younger generation, Justices William Johnson and Joseph Story were only thirty-two when they were appointed in 1804 and 1811, respectively. Story was younger than Johnson by about a month.

Only two other justices were under forty when appointed: Bushrod Washington, nephew of the president, was thirty-six when appointed in 1798, and James Iredell was thirty-eight when appointed in 1790. Iredell also was the youngest justice to die on the Court—forty-eight when he died in 1799. The youngest twentieth-century justice was William O. Douglas, who was forty when appointed in 1939. Clarence Thomas was forty-three when he joined the Court in 1991.

The oldest justice to serve was Oliver Wendell Holmes Jr., who retired at ninety in 1932. Justice Stevens, born in 1920, became the second oldest justice in 2007 when he surpassed Chief Justice Taney, who was eighty-seven when he died in 1864. Chief Justice Rehnquist was eighty when he died in 2005. All the other justices who had served past the age of eighty retired from the bench and did not die in office. They were Harry Blackmun, eighty-five when he retired; William Brennan, eighty-four; Thurgood Marshall, eighty-three; Louis Brandeis and Gabriel Duvall, both eighty-two; Joseph McKenna and Stephen Field, both eighty-one; and Samuel Nelson, eighty.

The youngest member to leave the Court was Benjamin Curtis, who resigned in 1857 at forty-seven. Others who left the Court before the age of fifty were Justices Iredell, dead at forty-eight, Alfred Moore, who retired at forty-eight, and John Jay and John Campbell, who retired at forty-nine. Jay also holds the record for number of years survived after leaving the Court—thirty-four. James Byrnes lived twenty-nine years after resigning from the Court in 1942.

Length of Service

Length of service on the Court has varied greatly, from fifteen months to thirty-six years. Byrnes served the shortest time; he was confirmed by the Senate on June 12, 1941, and resigned on October 3, 1942, to become director of the World War II Office of Economic Stabilization. Justice Thomas Johnson, who served from 1791 to 1793, was on the Court only sixteen months. Although he resigned because of ill health, he lived another twenty-six years, dying at the age of eighty-seven.

In January 1974 Justice Douglas broke the record for service on the Court, held since December 1897 by Stephen Field, who had served thirty-four years and nine months when he resigned. Douglas served until November 1975, resigning after thirty-six years and seven months. Chief Justice Marshall established the first longevity record by serving for thirty-four years and five months between 1801 and 1835. That record held until Field broke it in 1897. Justice Stevens had served thirty-four years as of December 2009. Other justices who served thirty years or longer include Black (thirty-four years, one month), Brennan (thirty-three years, nine months), Rehnquist (thirty-three years, nine months), the first John Marshall Harlan and Joseph Story (thirty-three years each), James Wayne (thirty-two years), Byron R. White (thirty-one years, two months), John McLean (thirty-one years), and Bushrod Washington and William Johnson (thirty years each).

Four or five years is usually the longest the Court goes without a change in justices, but from 1994 to 2005, the Court's membership remained the same. On the other hand, so many changes occurred on the Court during the long terms of Black and Douglas that they each served with more than a quarter of the Court's entire membership throughout its history. But there was one other lengthy period—twelve years—when the Court's membership remained intact. That was from 1811, when Joseph Story was confirmed, to 1823, when Justice Henry Brockholst Livingston died.

Long service sometimes leads to questions of disability as justices age and are no longer capable of carrying a full share of the work. By early 1870 Justice Robert C. Grier was nearly seventy-six. His mental and physical powers were obviously impaired, and he often seemed confused and feeble. Grier complied when a committee of his fellow justices approached him to urge his resignation. He died eight months later.

Justice Field was among those urging Grier's retirement. Ironically, a quarter of a century later, Field found himself in the same position as Grier. His powers had visibly declined, and he was frequently absent from the Court. The other justices finally began hinting strongly that Field should resign. But Field insisted on staying on long enough to break Chief Justice Marshall's record for length of service.

In 1880 the Court was manned by an especially infirm set of justices; three of the nine—Ward Hunt, Nathan Clifford, and Noah Swayne—were incapacitated. Hunt had suffered a paralytic stroke in 1879 and took no further part in Court proceedings, but he refused to resign because he was not eligible for a full pension under the law then in effect. Finally, after three years, Congress passed a special law exempting Hunt from the terms of the pension law and granting him retirement at full pay if he would resign from the Court within thirty days of enactment of the exemption. Hunt resigned the same day.

Justice Clifford also had suffered a stroke that prevented him from participating in Court activities. Clifford also refused to resign, hoping to live long enough for a Democratic president to name a successor. At the time, Clifford was the only Democrat left on the Court who had been named by a Democratic president. But he died while Republicans were still in power.

Justice Swayne's mental acuity was noticeably declining. He was persuaded to resign by President Hayes, with the promise that Swayne's friend and fellow Ohioan Stanley Matthews would be chosen as his successor.

The most recent case of a Court disability was that of Justice Douglas, who suffered a stroke in January 1975. At first, Douglas attempted to continue his duties, but in November he resigned, citing pain and physical disability.

Features

Catholic and Jewish Justices

When Samuel A. Alito Jr. took his seat in 2006, he created a new majority on the Court. For the first time, the majority faith among the justices was Catholic. President George W. Bush had chosen John G. Roberts Jr., a Catholic, to be chief justice. His second appointee, Alito, became the fifth Catholic among the nine justices. And when President Barack Obama made his first appointment in 2009, he chose Sonia Sotomayor, a Catholic, to replace Justice David H. Souter, an Episcopalian. When Sotomayor was sworn in, the Court had six Catholics, two Jews, and one Protestant.

Until the 1980s, however, it was all but assumed that the justices, with a few exceptions, would be Protestants. Of the 111 justices, only 18 did not have a Protestant background. The first break with Protestant tradition came in 1835 when President Andrew Jackson nominated Roger B. Taney, a Catholic, as chief justice. Taney's religion caused no controversy at the time; instead, his close alliance with Jackson, whom he served as attorney general and Treasury secretary, was an issue.

After Taney's death in 1864, it was thirty years before another Catholic was appointed. In that year President Grover Cleveland chose Edward D. White of Louisiana as associate justice. Sixteen years later President William Howard Taft made White chief justice. As with Taney, White's religion attracted no particular notice. Both Taney and White were from traditional Catholic areas of the country, and both had long been engaged in politics. In 1897 President William McKinley chose Joseph McKenna, his attorney general and a Catholic, as associate justice. In that appointment, geography was the overriding factor—McKenna came from California, the same state as his predecessor, Stephen J. Field.

Pierce Butler was the next Catholic appointee, named by Warren G. Harding in 1922. On Butler's death in late 1939, Franklin D. Roosevelt picked as his successor Frank Murphy, an Irish Catholic who had been mayor of Detroit, governor of Michigan, and was then serving as Roosevelt's attorney general. In 1949, when Murphy died, Harry S. Truman named a Protestant, Tom C. Clark. For the first time since 1894 there was no Catholic on the Court.

Of all Catholic appointments, that of William J. Brennan Jr. by President Dwight D. Eisenhower in 1956 attracted the most notice, although it was relatively noncontroversial. But it was an election year, and the Republicans were making a strong appeal to normally Democratic Catholic voters in the big cities. Some saw Brennan's appointment as part of that GOP strategy, although Eisenhower insisted it was an appointment made purely on merit.

President Ronald Reagan named two Catholics to the Court—Anthony M. Kennedy and Antonin Scalia. Their religious beliefs seemed significant only insofar as the Catholic church, like Reagan, steadfastly opposed abortion. The link between Catholicism and opposition to abortion was not automatic, however. Justice Brennan was one of the architects of the Roe v. Wade (1973) ruling and had steadily supported abortion rights.

Much more controversial than any of the Catholic nominees was Louis D. Brandeis, the first Jewish justice, named by Woodrow Wilson in 1916. Brandeis was already a figure of great controversy because of his progressive views on social and economic matters. Conservatives bitterly fought his nomination, raising an element of anti-Semitism. When Brandeis took his seat on the Court, Justice James McReynolds refused to speak to him for three years and once refused to sit next to him for a Court picture-taking session.

Herbert Hoover's nomination of Benjamin Cardozo in 1932 established a so-called Jewish seat on the Supreme Court. Justice Felix Frankfurter replaced Cardozo in 1939. He in turn was replaced by Justice Arthur J. Goldberg in 1962. And when Goldberg resigned his Court position to become U.S. ambassador to the United Nations, President Lyndon B. Johnson chose Abe Fortas to replace him. But with Justice Fortas's resignation in 1969, President Richard Nixon broke the tradition of a “Jewish” seat by choosing Harry A. Blackmun of Minnesota, a Protestant.

A quarter of a century then passed before the Court had another Jewish member and then, in quick succession, President Bill Clinton named two Jewish justices: Ruth Bader Ginsburg in 1993 and Stephen G. Breyer in 1994. Religion was not an issue for either of the nominees, both of whom were long-serving judges on lower federal courts.

Clarence Thomas was an Episcopalian when named to the Court in 1991, but in 1996 he announced that he had returned to Catholicism, the faith of his youth. That personal decision made history: for the first time, a majority of the justices were not Protestant. Thomas, Scalia, and Kennedy were Catholic; Breyer and Ginsburg, Jewish.

Six Foreign–Born Justices

The Constitution does not require that Supreme Court justices be native-born Americans, and so presidents are free to name foreign-born persons to the Court. In all, six Supreme Court justices have been born outside the United States, one the son of an American missionary abroad. Of the remaining five, four were born in the British Isles. Only one—Felix Frankfurter—was born in a non-English-speaking country, Austria.

President George Washington appointed three of the foreign-born justices. The others were selected by Presidents Benjamin Harrison, Warren G. Harding, and Franklin D. Roosevelt.

The six justices born outside the United States are:

  • James Wilson, born on September 14, 1742, in Caskardy, Scotland. Wilson grew up in Scotland and was educated at St. Andrews University in preparation for a career in the ministry. But in 1765 he sailed for America, where he studied law and became a land speculator. A signer of the Declaration of Independence, Wilson also was a member of the 1787 Constitutional Convention and its Committee of Detail, which was responsible for writing the first draft of the Constitution. In 1789 President Washington appointed Wilson one of the original members of the Supreme Court.

  • James Iredell, born on October 5, 1751, in Lewes, England. Iredell was born into an old English family allegedly descended from Oliver Cromwell's son-in-law. Through family connections, Iredell received an appointment as colonial comptroller of customs at Edenton, North Carolina, at age seventeen. After six years he was promoted to collector of the port of Edenton. But Iredell identified with the colonial cause and resigned his job as collector in 1776. While serving in his colonial offices, Iredell studied law and began practice in 1770. By 1788 he had become a strong supporter of the new federal Constitution and worked for its ratification by North Carolina. President Washington appointed him a Supreme Court justice in 1790.

  • William Paterson, born on December 24, 1745, in County Antrim, Ireland. Paterson emigrated to America with his parents when he was two years old. He received his education at the College of New Jersey (now Princeton University) and then read law, opening his own law practice in 1769. Paterson was active in New Jersey affairs during the Revolutionary and Confederation periods, and he served as a delegate to the Constitutional Convention in 1787. He was a member of the First Senate from 1789 to 1790 and, as a member of the Judiciary Committee, helped to write the Judiciary Act of 1789. Later, he codified the laws of the state of New Jersey and, in association with Alexander Hamilton, laid out plans for the industrial city of Paterson. He was appointed to the Supreme Court by President Washington in 1793.

  • David Brewer, born on June 20, 1837, in Smyrna, Asia Minor, where his father was serving as a Congregational missionary. Brewer's mother was the sister of Justice Stephen J. Field and Cyrus W. Field, promoter of the first Atlantic cable. The family returned to the United States soon after Brewer's birth. Brewer sought his fortune in Kansas and spent most of his career in the Kansas court system and lower federal courts. He was appointed to the Supreme Court by President Benjamin Harrison in 1890.

  • George Sutherland, born on March 25, 1862, in Buckinghamshire, England. Sutherland's father converted to Mormonism about the time of George's birth and moved his family to the Utah Territory. Although the senior Sutherland soon deserted the Mormons, the family remained in Utah, where George was educated at Brigham Young Academy (now Brigham Young University). When Utah entered the Union as a state in 1896, Sutherland was elected to the state legislature. In 1900 he won a seat in the U.S. House and served two terms in the U.S. Senate (1905–1917) before being defeated for reelection. While in the Senate, he formed a close friendship with a fellow senator, Warren G. Harding of Ohio. When Harding became president, he appointed Sutherland to the Supreme Court.

  • Felix Frankfurter, born on November 15, 1882, in Vienna, Austria. Frankfurter came to the United States with his parents in 1894 and grew up in New York City's Lower East Side. He had a brilliant academic record at City College and Harvard Law School, after which he practiced law for a time in New York City. In 1914 he joined the Harvard Law faculty and remained there, with time out for government service during World War I, until his appointment to the Supreme Court by President Franklin D. Roosevelt in 1939.

 

Document Citation
2 David G. Savage, Justices' Characteristics, in Guide to the U.S. Supreme Court 1055-60 (5th ed., 2011), http://library.cqpress.com/scc/gct5v2-1180-57531-2237464.
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