By Will Giles.
In late 2000, the Supreme Court issued a 5-4 decision in Bush v. Gore, finding that there was not enough time to recount the ballots in West Palm Beach and Counties in a Constitutional way by the December 18th meeting of the Electoral College. This decision effectively gave George W. Bush Florida’s electoral votes and the Presidency, despite losing the nationwide popular vote.
Pundits heavily criticized the Court’s decision for its alleged political undertones in its decisions. They argued that the Court should not involve itself in political decisions at all, only deciding cases based on their adherence to the Constitution. They cited the fact that the five most conservative Justices on the Court (William Rehnquist, Antonin Scalia, Clarence Thomas, Sandra Day O’Connor, and Anthony Kennedy) voted for the result that would ensure the presidency for Bush, the candidate of the conservative Republican Party, while the Court’s more liberal members (John Paul Stevens, David Souter, Stephen Breyer, and Ruth Bader Ginsburg) took the opposite stance.
Given how Justices are placed upon the Court, it is, however, not surprising that their opinions have political undertones. Justices must be nominated by the President and confirmed by the Senate, both of which are political entities seeking likeminded Justices. Since Justices have lifetime appointments, a Presidential appointment has the potential to affect national political discourse for decades after his or her Administration ends. And when the nomination comes in a first term, it often becomes an important issue in a reelection campaign. Thus, it would make no political sense for the President to nominate a Justice who did not share a similar political ideology.
Politics also comes from the judicial candidates. Samuel Chase signed the Declaration of Independence; William Paterson, John Rutledge, and Oliver Ellsworth singed the Constitution; and James Wilson signed both documents.
77 of 122 Supreme Court Justices have held elective office or an executive appointment. These positions cover a wide range of the political spectrum, from local offices, such as Mayor of Detroit (Frank Murphy Murphy) and member of the City Council of Cincinnati (Potter Stewart), to national offices such as President (William Taft) and Senator (Hugo Black). Robert Jackson was even the Chief Prosecutor for the United States at the Nuremburg Trials. George Shiras, Jr. was the only Justice to not hold any legislative, executive, or judicial office, though he was a highly successful lawyer.
These “Supreme Politicians” each achieved distinction in their own right, but three deserve special recognition:
William Howard Taft, “The Chief”: There is an apocryphal story that sums up William Taft’s political career nicely. President Theodore Roosevelt invited then-Secretary Taft and his wife Helen, to dinner at the White House one evening. After pleasantries and dinner, Roosevelt says, “I sense a great man in the room, but I don’t know what his future holds. On one hand, I can see the presidency. On the other, I see the Supreme Court. What do you see?” Simultaneously, Helen said, “The Presidency,” while William said, “The Court.”
President turned out to be entirely correct. After serving as Governor-General of the Philippines and Secretary of War in the Roosevelt Administration, Taft was chosen by Roosevelt to be his successor as Chief Executive (President). He easily beat William Jennings Bryan in the 1908 election, but soon ran afoul of his old mentor during his term. After losing the Republican nomination to Taft in 1912, Roosevelt walked out of the Republican Convention and started the Progressive (“Bull Moose”) Party. The split in the Republican Party allowed Woodrow Wilson to capture the White House in 1912. Taft’s lifelong dream was fulfilled in 1921, when President Warren Harding appointed him as Chief Justice following Edward White’s death. He served until his death in 1930. Not only does Taft have the distinction of being the only person to lead both the Executive and Judicial branches, he also appointed his Chief Justice predecessor (Edward White) and successor (Charles Evans Hughes) to the Court.
Charles Evans Hughes, “The Two-Termer”: Charles Evans Hughes defeated media William Randolph Hearst in the New York Gubernatorial race in 1906, after gaining notice as a progressive investigative attorney. “The Reform Governor of New York” later received an offer to run as Vice President with Taft on the Republican ticket of 1908, which he refused. Hughes would not, however, refuse when Taft called upon him again in 1910, this time with the offer of an appointment to the Court as an Associate Justice.
As mentioned earlier, the Republican Party had split in 1912 into two separate parties, the Republican Party and the Progressive Party. In order to bring the party back together to better challenge to Wilson in his 1916 reelection bid, a candidate was needed who had the bona fides to satisfy both wings of the Party and had stayed above the fray in 1912. Hughes, having been on the Court and out of elective politics since 1910, satisfied both criteria. On July 21, 1916, he resigned from the Court and accepted the Republican Party’s nomination for President. Known as “The Bearded Iceberg” for his noted facial hair and cool attitude towards the press on the campaign trail, Hughes came within a hair, 3800 Californian votes to be precise, of defeating Wilson. Hughes would go on to serve as Secretary of State in the Harding Administration, and, with the death of Chief Justice Taft in 1930, President Herbert Hoover appointed him as Chief Justice. After guiding the Court through President Franklin D. Roosevelt’s “Court-Packing” attempt and supervising the Court’s move into its own building, Hughes resigned in 1941 as the only person to serve two separate stints on the Court.
James Byrnes, “The Politician’s Politician”: An appointment to the Supreme Court would be the crowning achievement of most people’s lives. However, to James Byrnes, it was merely one of many stops on a career path that led him to be one of the few people to ever hold high positions in all three branches of the federal government. Byrnes represented South Carolina in the House of Representatives from 1911 to 1925 and the Senate from 1931 to 1941. In the Senate he was a major supporter of FDR and the New Deal, working closely with the Administration to pass the legislation needed to fight the Great Depression. The President rewarded his loyal supporter with an appointment to the Court in 1941, despite never attending high school or law school.
His term lasted a mere 15 months, as he resigned in 1942 in order to lead the Office of Economic Stabilization. He was soon also made the head of the Office of War Mobilization. Deridingly called “Assistant President” by Congressmen and pundits alike, Byrnes seemed like the logical choice to get the vice-presidential nomination at the 1944 Democratic National Convention. To his dismay, FDR did not actively campaign for him, and the nomination went to Harry Truman. The possible bitterness did not prevent Byrnes from accepting now-President Truman’s offer of Secretary of State, serving from 1945 to 1947 at the beginning of the Cold War. Proving that old politicians never cease campaigning, he sought and won the South Carolina Gubernatorial election 1951, serving a single four-year term.
Times have changed on the Court. Only one of the Justices who contributed to the Court’s opinion in Bush v. Gore had previously held elective office: Sandra Day O’Connor, who served three terms in the Arizona State Senate. Considering the careers of most of the Justices in the Court’s history, this is a stark departure from the norm. Thus, the Court’s background is shifting from predominately political to solely judicial, which the Court’s detractors would applaud. Just as the Pendleton Act of 1883 professionalized the Civil Service by removing the political aspect in the selection process, the appointment of career judges removes the possibility of overt political involvement.
However, just because one does not run for office does not mean that one does not hold political convictions. Thus, as long as the President holds the power to appoint Justices, and the Senate has the power to confirm them, Justices will continue to allow their political beliefs to color their judicial opinions. Now, there will just be no legislation sponsored, nor stump speeches. As Chief Justice Hughes once said, “At the constitutional level where we work, ninety percent of any decision is emotional. The rational part of us supplies the reasons for supporting our predilections.”