Old Paths to the Supreme Court
The way things were
In my previous post, I showed how the prevalence, and now utter dominance, of former federal appellate judges on the Supreme Court is a development since Richard Nixon’s presidency. In order to explore the reasons for this change, it’s helpful to examine the professional experience of Supreme Court appointees from 1900 up until Nixon.
(The very attentive reader might recall that I had anticipated using this post to address the possible reasons that underlie the rise of former federal appellate judges on the Court. But on reflection I realized that some more foundation should first be laid.)
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Some forty justices were appointed in the first seven decades of the 20th century. The only pattern I see in their professional experience before joining the Court is a hodgepodge.
The hodgepodge (with some double-counting) includes:
Six former United States senators: by year of appointment, Edward White (elevated to chief justice in 1910), George Sutherland (1922), Hugo Black (1937), James Byrnes (1941), Harold Burton (1945), and Sherman Minton (1949) (whose Senate career ended in 1941).
Ten senior Department of Justice officials:
Six United States attorneys general: William Moody (1906), James McReynolds (1914), Harlan Stone (1925), Frank Murphy (1940), Robert Jackson (1941), and Tom Clark (1949).
Three solicitors general: Stanley Reed (1938), Jackson (who was SG before he was AG), and Thurgood Marshall (1967).
Deputy Attorney General Byron White (1962).
Five state supreme court justices: Oliver Wendell Holmes Jr. (1902), Joseph Lamar (1911), Mahlon Pitney (1912), Benjamin Cardozo (1932), and William Brennan (1956). (Edward White had been a Louisiana supreme court justice before becoming senator.)
Three governors: Charles Evans Hughes (1910), Frank Murphy (who was governor of Michigan before becoming Attorney General), and Earl Warren (1953).
Federal appellate judges were often selected as justices during this period. There were seven who were directly elevated from a court of appeal: William Day (1903), Horace Lurton (1910), Willis Van Devanter (1911), Sherman Minton (1949), John M. Harlan II (1955), Charles Whittaker (1957), and Potter Stewart (1958). And there were three others who had been federal appellate judges earlier in their careers: William Howard Taft (1921), Fred Vinson (1946), and Thurgood Marshall (1967).
But while federal appellate judges were very much in the mix and arguably even the leading ingredient, their numbers—7 (or, if you prefer, 10) out of around 40—were not remotely like recent history. To borrow from my last post: Of the past 14 justices who have been appointed to the Court—beginning with Antonin Scalia in 1986—13 of them were serving on a federal court of appeals at the time of their appointment. In sharp contrast, in the 38 years between Van Devanter’s appointment and Sherman Minton’s, not a single one of the 24 justices was serving as a federal appellate judge when he was appointed.
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To further highlight the contrast:
No United States senator has been nominated to the Supreme Court in more than 75 years.
No United States attorney general has been nominated to the Court in more than 75 years.
Only one former state supreme court justice has been nominated to the Court since Brennan in 1956—David Souter, who had been on the New Hampshire supreme court before joining the First Circuit in 1990.
No former governor has been nominated to the Court in the past 70 years.
More broadly, it appears that roughly 2/3 of the 20th-century justices up to and including Earl Warren held (or in a couple of instances unsuccessfully ran for) elective office in federal or state government. Of the 28 justices since Earl Warren, none served in Congress, and I am aware of only one who held elective office in state government: Sandra Day O’Connor, who was a member of the Arizona senate for just over five years.
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Now we’re ready to turn in the next post to the possible reasons that underlie the dramatic shift to selecting federal appellate judges to serve on the Supreme Court.
I realize you are not going back to 1981, but Sandra Day O'Connor's background was odd for any era.
She had dated William Rehnquist at Stanford Law School (he proposed marriage; she declined), was a Deputy District Attorney in California; relocated back to Arizona when her husband left the military; became an Arizona state senator; and finally, a judge on the Arizona Court of Appeals, which sits below the Arizona Supreme Court.
There was no Harvard-Yale in her background. No impressive clerkships. No time in the Justice Department. No major political mentors (perhaps Barry Goldwater in the twilight of his career, though I don't know). So in many ways she may be the most improbable Supreme Court Justice any President appointed in the last century.
(I'd also note that William Rehnquist had been yanked out of obscurity as well, serving as head of the Office of Legal Counsel at the Justice Department when Nixon named him to the Court. Graduating first in his Stanford class and clerking for Justice Robert Jackson undoubtedly spoke to his legal mind).