The Supreme Court Justices at the Bar of Politics

I had the pleasure of reading Noah Feldman’s Scorpions this past weekend. It’s an entertaining book, and does a great job relating the judicial and political machinations of Justices Black, Douglas, Frankfurter, and Jackson. The judicial machinations are familiar, but I suspect that for many readers the  extent of the Justices’ direct and ongoing involvement in politics–and not only through their rulings–will come as a bit of a surprise, especially given the widespread hand-wringing about how today’s Court is “political.” However justified that hand-wringing may be, I doubt I’m alone in thinking it unimaginable that any of the current or recently retired Justices would use a seat on the Court as a stepping stone to some other political position. That said, I’m not entirely sure why.

Feldman focuses on the relationships among the Justices, but their direct, individual relationships with the political branches are just as striking and arguably no less important. Long after he was confirmed, Frankfurter kept up a more or less constant correspondence with President Roosevelt, advocating appointments and making political recommendations. Douglas harbored realistic presidential aspirations throughout the 1940s, and came within a hair of being the Democratic vice-presidential candidate in both 1944 and 1948. Jackson took a temporary leave from the Court to draft the London Charter of the International Military Tribunal, which set up the Nuremberg Trials, at which he then served as chief prosecutor. Black’s political aspirations were undoubtedly tempered by his Klan membership (which came to national light during his confirmation, though not early enough to scupper it), though Feldman reports that as late as 1948 Black briefly investigated whether he had enough support to muster a presidential run.

Nor were these four the only Justices who played an active role in politics at the time: Owen Roberts (he of the “switch in time”) headed up the commission investigating the attack on Pearl Harbor; Jimmy Byrnes left the Court to run the Economic Stabilization Office and went on to serve as Secretary of State and Governor of South Carolina; and Charles Evans Hughes resigned from the Court in 1916 to run for office–he lost the presidency, but wound up as Secretary of State–before returning almost fifteen years later as Chief Justice. I don’t count Taft, because he became Chief Justice after the White House.

Try as I might, I just can’t picture any of the current Justices playing such a direct and active role in politics either during or after their terms (“All the way with Elena K!”), and I gather that many others share my mental block (or naivete). In part, this must be a function of the particular interests and aptitudes of the current Justices, which in turn is arguably a reflection of the “professionalization” of the federal judiciary. This stands in contrast to the Roosevelt appointees: Black was a Senator, Jackson and Douglas were high-ranking officials who had eyes on the White House, and although Frankfurter never stood for elected office, he served in government and cultivated relationships with almost everyone of note in Washington. Those kinds of political backgrounds have become less common in recent decades, albeit not vanishingly so: Breyer’s service on the Senate Judiciary Committee comes to mind, as does Roberts’ service in the office of the White House Counsel. Among recent Justices, O’Connor served in the Arizona State Senate; Rehnquist was active in Republican Party Politics; and Lewis Powell served on the Richmond School Board throughout the 1950s (surely an important political position, given the time.) And of course some of the Justices maintain personal relationships with those in other branches – the Scalia-Cheney hunting trip comes to mind – though my sense is that there’s nothing akin to the Frankfurter-Roosevelt connection.

Besides the Justices’ backgrounds, what has changed that makes it so hard to imagine their having post-Court political careers, or even rendering other forms of government service while serving on the Court? Have we come to see them less as individual political actors, whatever our views of the Court itself as political? Has our doctrinal or political vision of separation of powers changed? Or has service on the Court simply become so powerful and prestigious that no one wants to give it up?

You may also like...

3 Responses

  1. Corin says:

    It’s interesting that the de-politicizing of the justices comes as confirmation hearings are increasingly politicized. Perhaps justices are less political before the bench so they can get confirmed and then after to avoid their opinions being attacked as displaying a perceived bias rather than legal judgment.

    It appears that having political justices with confirmation hearings focused on substance, as in the past, showed the idea that justices could separate their political opinions from their judicial judgment. However with more political confirmation hearings (and legal criteria already known due to professionalization of judiciary), the line is blurred and the idea that you can separate the person from the judge is the casualty.

  2. Heller's Guner says:

    Another answer to this might have to do with the increasing degree of specialization within both our society and law. I think it was more common in Frankfurter’s day for supreme court justices to have their main job experience working in areas other than constitutional law.

  3. TalkingHead says:

    I think too the more recent trend of seeking SCOTUS appointees from the U.S. Courts of Appeals has had some effect on the perception or the reality of less politically active justices. The jobs of Black, Frankfurter, Jackson, and Douglas immediately prior to their appointments to the SCOTUS were U.S. senator, HLS law professor, U.S. attorney general, and chairman of the SEC, respectively. It will be interesting to see whether Kagan looks more like these older justices than here colleagues.

    Were they nominated today, I doubt Black would be confirmed due to his KKK membership and question whether Douglas could have been either — especially if there was anything in his past like his post-confirmation attempted sexual assault of a flight attendant in chambers.