Legal Features
Book Review: Unknown Justices of the United States Supreme Court
Reviewed by Robert Luther III
August 4, 2011
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UNKNOWN JUSTICES OF THE UNITED STATES SUPREME COURT (William S. Hein & Co., Inc. 2011) By William D. Bader and Hon. Frank J. Will |
A 2010 study by FindLaw, "the most popular legal information website,"[1] revealed that "nearly two-thirds of Americans cannot name any members of the U.S. Supreme Court."[2] In view of the fact that this survey was limited to current Justices on the Court, it is not hard to imagine how far off the public radar the 16 individuals covered by Bader & Williams's most recent excursion into U.S. Supreme Court history, UNKNOWN JUSTICES OF THE UNITED STATES SUPREME COURT, must be. As someone who follows the current Court regularly, and who has exerted a "good faith effort" to become familiar with the Court's members of yester-year, I confess that I had only heard of 5 of the 16 individuals covered--all 5 of whom served on the Court in the 20th century. Yet even in obscurity, certain Justices' careers appear more noteworthy than other equally-obscure counterparts for a variety of reasons, such as the historical sequence resulting in their appointment, the President who appointed the Justice, and whether or not the nation was at war during the appointment (or, whether a vacancy on the Court resulted because of a resignation, as was the case of John A. Campbell, discussed in Chapter VIII). This book review will emphasize the group of notable "unknown" Justices Bader & Williams recount in their most recent compilation of U.S. Supreme Court history.
Unknown commences with a brief vignette of the South Carolinian Justice William Johnson. An appointee of Thomas Jefferson, Johnson became known as "the first great Court dissenter." This is noteworthy because, prior to Johnson's arrival, dissents were infrequent on the Marshall Court. Thomas Todd of Kentucky, Jefferson's third appointee to the Court, is discussed thereafter. Todd is "known" for being a veteran of inclusion in compilations like Unknown, and was previously dubbed one of the two "most insignificant Justices" by Judge Easterbook[3] and Professor Currie[4] in a series of articles in the University of Chicago Law Review. Todd's title is well-deserved in view of the fact that he wrote only 14 opinions in his 19 years on the Court.
In their chapter on Todd, (since there was admittedly little case law to discuss given that he wrote less than one opinion per year), Bader & Williams first broach the topic of "riding circuit," which is not a topic of significant discussion in the 21st century since members of the Court are no longer required to do so. However, until late into the 1800s, Justices of Court not only heard cases in Washington, D.C., but also sat as what would be considered U.S. District Court judges in the handful of states under the umbrellas of their native circuits. Thus, Bader & Williams's discussion of Todd's diligence in this responsibility serves as a two-fold reminder of just how "frontier" this nation was in the early 1800s and the level of commitment the early members of the Court were required to maintain in order to assure that there was access to the judiciary in their native jurisdictions.
As Bader & Williams move beyond the founding era and emerge into the Civil War, the authors cover two Civil War-era Justices--one from the North and the other from the South--whose stories are both well-worth repeating. John A. Campbell of Alabama's journey to the Court commenced in a fashion surely alien to the modern Supreme Court confirmation process, when sitting Justices Catron and Curtis delivered letters to President Franklin Pierce urging Campbell's appointment to the Court. Campbell was confirmed, but resigned in 1861 when his native Alabama seceded from the Union. He accepted office in the Confederate administration and was one of the high-ranking Confederate officials imprisoned at the end of the war--that was, until two sitting Justices again came to his aid and secured his release. He returned to private practice, establishing himself in New Orleans, where he would eventually represent New Orleans butchers in the Slaughterhouse Cases, a seminal case that, while wrongly decided against Campbell's clients' interests, continues to adorn constitutional law textbooks today. David Davis, on the other-hand, was a Northerner. As a trial Judge on the Illinois circuit, Judge Davis regularly presided over cases Abraham Lincoln was litigating. As a circuit Judge, Davis traveled throughout Illinois and Lincoln, as a circuit litigator, had occasion to practice in front of Judge Davis throughout Illinois as well. Through their frequent interaction the two became well-acquainted and when Lincoln declared his candidacy for President, Judge Davis resigned from the bench and led his campaign. Lincoln eventually appointed Davis to the Supreme Court. Despite his friendship with Lincoln, one of Davis's most significant opinions, Ex Parte Milligan, suggested that Lincoln violated the Constitution by suspending the writ of habeas corpus. Milligan, of course, was decided after the Civil War had concluded. Davis ultimately resigned from the Court and was elected to the U.S. Senate and remains the only Justice ever to have done so. As a legislator, he advocated for the creation of circuit courts of appeal--versions of the contemporary U.S. Courts of Appeal--so that Justices of the high Court could reduce their time on the road and focus on their work on the high Court.
Bader & Williams also include a fair share of anecdotes, particularly with respect to the 20th century Justices discussed, and these human-interest stories are frequently the most memorable aspect of each vignette. In describing Pierce Butler's penchant for avoiding the public spotlight, they write that "one of Butler's sons recalled that his father... [when editing] his opinions... struck any statement that might be quotable." Another anecdote recalls that Stanley Reed originally intended to issue a dissent in Brown v. Bd. of Education, but even his law clerk balked at the idea and Reed was ultimately persuaded to join Chief Justice Warren's unanimous opinion striking down the practice of "separate but equal." Finally, the authors note in their chapter on Harold H. Burton that in 1954 the Supreme Court law clerks voted him the Justice they would most want to preside over their own case if they were ever subjected to suit.
In sum, the strength of Bader & Williams's collection of vignettes is its ability to comfortably orient the reader back in time and remind him how different and cumbersome the practice of law was in the bygone eras of the Justices discussed. The authors' compilation also reminds us that the Justices of the founding era and particularly the 19th century were individuals of diverse talents. A great number of the "unknown" Justices discussed herein served in all three branches of government and/or dedicated their entire lives to public service. In an era where politics and law are particularly driven by ego, this compilation serves as both a refreshing and calming antidote to politics as usual. However, consistent with its namesake, this compilation also serves as a stark and chilling reminder that even the legacies of great patriots are frequently left unremembered.
*Robert Luther III is a Rutherford Institute affiliate attorney with the law firm of Knicely & Associates in Williamsburg, Virginia.
[1] http://www.prnewswire.com/news-releases/two-thirds-of-americans-cant-name-any-us-supreme-court-justices-says-new-findlawcom-survey-95298909.html (last accessed July 31, 2011)
[2] Id.
[3] Frank H. Easterbrook " The Most Insignificant Justice: Further Evidence" The University of Chicago Law Review, Vol. 50, No. 2, Fiftieth Anniversary Issue (Spring, 1983), pp. 481-503
[4] David P. Currie, "The Most Insignificant Justice: A Preliminary Inquiry." The University of Chicago Law Review, Vol. 50, No. 2, Fiftieth Anniversary Issue (Spring, 1983), pp. 466-480
