off the leash

We have on the Supreme Court today two justices whose confirmation hearings were dominated by seemingly credible accusations of sexual abuse. One apparently spent part of his elite education experience with his fly unzipped. The other, who has been on the court for some time now, is best known for going years without asking a single question of the cases being presented. Surely we have lowered the bar in terms of the caliber of individuals named to don the judicial robes of the country’s highest court. But after a little research I found that the likes of Brett Kavanaugh and Clarence Thomas still have a long way to go before they can be mentioned on the same list as this group of racists, anti-Semites and underachievers.

The Useless

John Rutledge

John Rutledge was a South Carolinian with a successful law practice and considerable wealth. He was the first independent governor of South Carolina, attended the Continental Congress and later the Philadelphia Convention of 1787 where the Constitution was written.

Rutledge was a slave owner who at one time owned 60 slaves. As an attorney in private practice he twice defended individuals accused of abusing slaves. His influence has been cited by some historians as the reason the Continental Congress chose not to abolish slavery.

George Washington appointed him to the first U.S. Supreme Court in February 1790. I’d be happy to tell you about his voting record or the opinions he wrote, but neither exist. Partly due to illness he never attended a single session before resigning from the court in March 1791. He left to become Chief Justice of South Carolina.

Rutledge’s disinterest in his first Supreme Court gig didn’t dissuade him from entreating Washington to appoint him U.S. Supreme Court Chief Justice after the first chief justice, John Jay, left the court. Washington did. But since the Senate was in recess Washington gave Rutledge a “recess appointment.” By the time Congress came back into session Rutledge had worn out his welcome in the capital after making a speech vehemently criticizing the Jay Treaty which established peace with England and set up a trade agreement. Amidst concerns about his deteriorating mental health and rumors of alcohol abuse, the Senate, although dominated by the Federalists, the party of Washington, voted down his nomination by a 14-10 vote. Distraught, Rutledge attempted suicide by jumping off a bridge. Guess who saved him? Two slaves pulled his sorry ass out of the river.

The John Rutledge legacy as Chief Justice? The shortest term of any Chief Justice and the first Supreme Court nomination to be rejected by the Senate.

The Racist

Roger B. Taney

If you’ve ever wondered why slavery lasted so long in the United States, why it took a Civil War to end it, look no further than the fifth Chief Justice of the Supreme Court Roger B. Taney. In 1857, the Taney court delivered what is widely considered the worst Supreme Court decision ever. The court ruled against Dred Scott, an enslaved Black man in Missouri who had sued to free himself, his wife and two daughters, based on his time living in Illinois as a free man.

It was not enough for Taney to deny basic human rights to this man, he had to elaborate further, writing the majority opinion, a defense and justification of slavery. In that opinion, he wrote that Blacks are “regarded as beings of an inferior order, altogether unfit to associate with the white race … and so far inferior, that they had no rights which the white man was bound to respect.”

Taney had been brought up in a wealthy slave-holding Maryland family. He reportedly emancipated his own slaves and granted pensions to those too old to work. That appears to be a brief sliver of enlightenment from much earlier in his career. Taney was a supporter of Andrew Jackson (who gets prominent mention in my list of the country’s worst presidents). Jackson tried to repay Taney by nominating him to be Secretary of the Treasury in 1834. Instead,Taney turned out to be the first Cabinet nomination in U.S. history to be rejected by the Senate. A year later, Jackson tried again, nominating him to a Supreme Court vacancy. The Senate let the session expire without ever voting on the nomination, thus killing it. But after an election changed the makeup of the Senate, Jackson again nominated Taney, this time to be chief justice, and it was approved.

Taney served as chief justice from 1836 to 1864. At that point karma caught up with him. He died pretty much penniless on the day that his home state officially abolished slavery.

There are some legal historians who have some good things to say about Taney’s Supreme Court tenure aside from the Dred Scott case. Personally I can find little in the way of positive thoughts about a man who so negatively impacted so many lives because of his blatant racism. I tend to agree with Massachusetts Senator Charles Summer who, after the House passed a bill to fund a bust of Taney, commented: “I speak what cannot be denied when I declare that the opinion of the chief justice in the case of Dred Scott was more thoroughly abominable than anything of the kind in the history of courts. Judicial baseness reached its lowest point on that occasion.”

The Utterly Obnoxious

James Clark McReynolds

James Clark McReynolds served on the Supreme Court from 1914 to 1941. Born in Kentucky, he had practiced law in Tennessee where he had a reputation for antitrust litigation. He served as assistant attorney general under Teddy Roosevelt and Woodrow Wilson (himself a flagrant racist) named him attorney general in 1913. One year later Wilson nominated him for the Supreme Court.

McReynolds’ voting record is mostly known for his opposition to everything that involved the New Deal. He is said to have referred to Franklin Roosevelt as that “crippled son-of-bitch.” He voted to strike down the Tennessee Valley Authority, the Social Security Act, the National Industrial Recovery Act, the Agricultural Adjustment Act and the Bituminous Coal Conservation Act, among others, often writing the dissenting opinion in these cases. 

But more than his voting record, it is McReynolds abhorrent personality that puts him on this list. He combined a general nastiness with virulent bigotry which he directed at Jews, Blacks and women alike. There are any number of instances that confirm Chief Justice William Howard Taft’s characterization of McReynolds as “fuller of prejudice than any man I have ever known.”

When Louis Brandeis became the first Jewish Supreme Court Justice, McReynolds refused to speak to him, refused to sign any opinion that he wrote and would leave the room when Brandeis spoke. When Herbert Hoover nominated another Jewish man to the court, Benjamin Cardozo, McReynolds read a newspaper while Cardozo was being sworn in. He did not attend a memorial service when Cardozo passed away and also skipped Felix Frankfurter’s swearing-in ceremony. 

During a case involving the desegregation of the University of Missouri Law School, McReynolds turned his chair to face the other way when the prominent Black attorney Charles Hamilton Houston presented his case. He would frequently leave the bench on those rare occasions when a female attorney was being heard.

Not surprisingly, few seemed to mourn McReynolds passing in 1946. Certainly not his Supreme Court colleagues who unanimously chose to bypass his funeral. 

The Clueless

Charles E. Whittaker

You have to admire the occasional Supreme Court justice whose vote can’t be counted on by any voting bloc or political party, the justice who seems to take each case on its merits and make a decision based on the arguments presented. In the late 50’s and early 60’s, the swing vote on the Earl Warren court was Charles E. Whittaker. Was Whittaker the kind of open-minded jurist who can fill this role. No, it seems more likely it was because he was, in the words of NYU professor Bernard Schwartz, “the dumbest justice ever appointed.” Schwartz is not alone in that view. Another highly-regarded expert on the Supreme Court, University of Vermont professor Howard Ball called  Whittaker “an “extremely weak, vacillating justice” who was “courted by the two cliques on the court because his vote was generally up in the air and typically went to the group that made the last, but not necessarily the best, argument.”

Whittaker was not a child of privilege, like so many other Supreme Court justices. He grew up on a farm in Missouri.  He quit high school to work on his family farm. After becoming interested in law he eventually worked his way through University of Missouri Law School. Whittaker was nominated to the Supreme Court by Dwight Eisenhower. He served on the court from 1957 to 1962.

On the court he demonstrated no particular judicial philosophy. It all came to a head in 1962 when the court was hearing the case of Baker v. Carr. This case involved a challenge by Baker and other residents of Tennessee of the way legislative districts were apportioned. The court issued a landmark ruling that courts had jurisdiction on this issue. That is a ruling that is particularly relevant today as there have recently been court rulings requiring states to correct inappropriately gerrymandered legislative districts. How did Whittaker vote in this important case? He didn’t. He had a nervous breakdown while hearing the case and took Chief Justice Earl Warren’s advice and resigned.

After leaving the court Whittaker became general counsel at GM. In his later years he was heard from mainly as a critic of the civil rights movement, of Martin Luther King Jr. and of the tactic of nonviolent civil disobedience.

(Photos from the Library of Congress public domain digital collection.)