Judicial Behavior and Separation of Powers

As part of my review of constitutional customs, let’s talk about how our understanding of separation of powers with respect to the judiciary has changed over time.  Consider some examples:

1.  It used to be common for Supreme Court Justices to advise the White House on policy.  Many of them did so for FDR.  Abe Fortas did the same for Lyndon Johnson.  Today that would be seen as totally inappropriate.

2.  Many Justices used to lobby the President when a vacancy occurred and were sometimes actively consulted on who should go on the Court.  Chief Justice Taft played a major role in picking names for President Harding, and Chief Justice Hughes advised FDR to name Harlan Fiske Stone as his successor.  Maybe that still goes on through back channels, but to do so openly would be really frowned upon now.

3.  Sitting members of the Senate used to get appointed to the Court.  Not anymore.  That hasn’t happened since the 1940s.  Likewise, the Justices used to be considered as possible presidential and vice-presidential candidates.  (Hughes in 1916. Douglas in 1944, and so on.)  That would be hard to envision now too.

4.  The President used to invite the entire Court to the White House once a year for dinner.  Even this tradition died at some point (I’m not sure when), probably because even this sort of socializing looked bad.

None of these practices are essential for separation of powers or for an independent, non-partisan judiciary.  It is interesting, though, how they relate to our understanding of separation of powers.

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3 Responses

  1. Orin Kerr says:

    1. True, although that may be because recent Presidents have not appointed their close personal advisors to the Supreme Court.
    2. Was it in the open back then? (I have no idea — just curious.)
    3. I don’t know if it is so hard to imagine. I’ll bet that more than one sitting Justice could be a serious Presidential candidate if he wanted to be.
    4. The President still goes to the Court to swear in a new Justice, and pictures are generally taken of the ten of them hanging out; I haven’t seen any opposition to this.

  2. Gerard Magliocca says:


    I mean “open” in the sense that there is extensive written documentation of these contacts and it was well known in DC circles (though probably not in the popular press) in the 1920s and 1930s. Maybe the same thing goes on now, but I don’t think papers of the Justices who have served in the past fifty years shows that.

  3. A related topic is the State of the Union Address. For many years it has been very partisan with many applause opportunities for the President, among which the SC and the Joint Chiefs are silent. This looks very wrong– to see many applauding and some members silent (not to mention Justice Alito’s antics a few years ago.) Because the speech is partisan, neutral bodies like the SC and the Joint Chiefs should not attend.