Beards at the Supreme Court

A hairy postscript to 'The Day I Met John Roberts...'

Among the favorable responses that I received to “The Day I Met John Roberts: How my escape from private practice led to a clerkship with Justice Scalia”

was an email from my friend Mark L. Evans about his own job interview decades ago with deputy solicitor general Larry Wallace. Mark’s entertaining story raises the broader matter of beards at the Supreme Court. Before turning to Mark’s story, I pose these trivia questions, which I answer at the end of this post:

1. Who was the most recent Supreme Court justice to sport a beard at oral argument in the courtroom?

2. Who was the most recent Supreme Court nominee to sport a beard at the time the Senate confirmed his nomination?

3. When did the Supreme Court have the most justices with beards?

* * *

Mark Evans has been retired for some years now, but experienced lawyers in D.C. will recognize him as a former name partner of the outstanding law firm then known as Kellogg, Huber, Hansen, Todd & Evans (the law firm where Neil Gorsuch was once a partner). Mark was one of the lawyers I most enjoyed working with when I worked in-house in the telecom industry, so I was pleased to hear from him. With his permission, here is his story:

Your Confirmation Tales email today reminded me of my own interview with Larry Wallace in early 1972. Like you, I had not clerked on the Supreme Court and had never argued an appeal. Even worse, unlike you I was sporting a full beard, at a time when that was still a rare thing to see on a lawyer. I don’t recall exactly what Larry said to me about my lack of qualifications, but I left the interview feeling wholly inadequate and assuming that the SG’s office would not pan out for me. I was therefore shocked when I received an offer from [Solicitor General and former Harvard law school dean] Erwin Griswold.

I learned later that, despite the negative energy that he generated during the interview, Larry was actually an advocate for me and was responsible for overcoming Griswold’s resistance to my candidacy. Griswold was concerned that the Court was not ready for a bearded government advocate, but Larry reminded him that his favorite Justice, Charles Evans Hughes, was famous for his distinguished beard. I was told that the Dean (as he insisted on being called) harrumphed his disapproval but ultimately relented. Maybe, as in my case, Larry was actually higher on you than he gave you any reason to believe.

A little over a year later, when Nixon infamously required all his appointees to tender pro forma resignations in advance of his second term, Griswold’s was accepted, to his great disappointment, and [Robert] Bork was named as his replacement. Bork showed up in the summer of 1973 with his own scraggly beard, and within six months nearly half of the Assistants had sprouted their own beards. But it was I, not Bork, who broke the modern beard barrier in the SG’s office.

* * *

Judge Bork’s beard was a matter of some controversy during the unsuccessful confirmation process on his Supreme Court nomination in 1987. To Bork’s amazement, Senator Orrin Hatch advised him to shave it off before the hearing. At the hearing itself, Democratic senator Howell Heflin even suggested that Bork’s beard was a sign that there was something strange about him and asked him “to give us an explanation relative to the beard.” Bork answered:

It's a very unromantic - it's a very unromantic explanation. In 1968-69 academic year, I was on sabbatical leave in England with my family. I was writing a book.

It was an antitrust book, and you may ask why I chose to write it in England. The answer is, the alternative was to write it in New Haven.

And I - we went on a canal boat trip. You drive it yourself along the canal and the family was in there. And the — in the bathroom, the sink was right against the wall, so when you tried to shave, unless you shaved with your left hand, I couldn't do it. And for about a week I didn't shave.

And by that time, my children had become fascinated with what was then the beginnings of a red beard, and they asked me to let it go.

And so I did. I grew a — I liked it much better when it was red, Senator. And I let it grow, and it kind of intrigued me and intrigued my children.

I’ve had it ever since.

Heflin replied: “There’s nothing wrong with it because there are a lot of bearded voters out there that I don't want to make mad.” (Heflin ended up voting against Bork.)

Judge Robert H. Bork in 1987

After the defeat of Bork’s nomination, President Reagan announced his intention to nominate another bearded D.C. Circuit judge, Douglas H. Ginsburg, to the empty seat. But Ginsburg withdrew his candidacy after admitting that he had smoked marijuana “once as a college student in the ’60s and then on a few occasions in the in the ’70s.” Reagan then nominated, and the Senate confirmed, the clean-shaven but, alas, woolly-headed Anthony Kennedy.

* * *

My answers to my trivia questions:

1. Antonin Scalia during the Court’s October 1996 term.

Per Josh Blackman, Justice Gorsuch was bearded on Constitution Day (September 17) in 2020. Oral arguments in the October 2020 term were done remotely because of the pandemic, so I do not know whether he retained his beard for any argument sessions.

2. Chief Justice Charles Evans Hughes, confirmed by a vote of 52 to 26 in 1930. (That at least is my best guess. I’m relying on Wikipedia’s photos of the justices.)

3. The Court’s first group portrait in 1867 shows six justices with beards: seated from left to right, David Davis (first), Noah H. Swayne (second), James M. Wayne (fourth), Samuel Nelson (sixth), Samuel F. Miller (eighth), and Stephen J. Field (ninth). The two without beards are Robert C. Grier and Chief Justice Salmon P. Chase.

(In his slightly different inquiry into which Court had the most justices with facial hair—beards or mustaches—Blackman answers with the 1868 Court. There were only eight justices on that Court, and my study of the photographic evidence reveals no more than three with beards.)