Supreme Court Season, Part 8

Thomas Todd, Robert Trimble, John McLean, Noah Swayne, Stanley Matthews, David Brewer, Charles Hughes, John Clarke, George Sutherland, Stanley Reed, Charles Whittaker, Byron White, Ruth Bader Ginsburg

Thomas Todd, Robert Trimble, John McLean, Noah Swayne, Stanley Matthews, David Brewer, Charles Hughes, John Clarke, George Sutherland, Stanley Reed, Charles Whittaker, Byron White, Ruth Bader Ginsburg

In 1807 the supreme Court was increased to seven justices, in order to make an odd number. Thomas Jefferson filled this new seat with Thomas Todd (1765-1826), who took office on March 3 and stayed until his death.

Thomas Todd was born in northern coastal Virginia. He fought for six months in the Revolution, then attended Washington and Lee University, graduating in 1783. He studied law and surveying and moved to the far west of Virginia, in what would become the state of Kentucky. He was chief clerk to the Kentucky Court of Appeals from 1789 to 1801, when he became a judge of that Court, and Chief Justice from 1806.

Todd’s expertise was in land and survey law. In almost 20 years on the Supreme Court he wrote only 14 opinions. The most important was a ruling in the 1824 case of Riggs v. Taylor, in which Todd found a copy of a document used as evidence should only be admissible if the original document is lost or destroyed.

Todd died at his home in Frankfort, Ky., in February 1826. At his death he owned a lot of land around Frankfort, valued at about $70,000 – about $1.4 million in today’s money.

Robert Trimble (1776-1828) replaced Todd on May 9, 1826, the only Supreme Court appointment of John Quincy Adams. He served until he died two years later.

Robert Trimble was born in Berkeley County, Virginia (now West Virginia), and moved to Kentucky when he was 3. He studied at a law school in Lebanon, Ohio, and passed the Kentucky bar in 1803. He was elected to the Kentucky state legislature for a term in 1803, then appointed to the Kentucky Court of Appeals in 1808, returning to private practice in 1810. He was appointed US Attorney for the District of Kentucky in 1813, then a judge of the federal District Court for the District of Kentucky in 1817.

Trimble wrote the majority opinion in the 1827 case of Ogden v. Saunders, which ruled that the federal government did not hold the exclusive right to pass laws concerning bankruptcy. The case is notable because it’s the only constitutional case in Chief Justice Marshall’s tenure that he dissented upon. This is made more notable still by considering that Trimble almost always sided with Marshall on every other case.

Trimble died suddenly of a “bilious fever” (an old-timey name for any fever accompanied by gastrointestinal distress) at his home in Paris, Ky., in August 1828. A county in Kentucky was named after him.

Andrew Jackson decided to fill the sudden vacancy with JQA’s outgoing Postmaster-General, John McLean (1785-1861), after he declined appointments as Secretary of the Navy and Secretary of the Treasury. McLean joined the Supreme Court on March 7, 1829, and stayed until he died.

John McLean was born in northern New Jersey and lived as a child in Virginia and Kentucky before his family settled in Ridgeville, Ohio. He passed the Ohio bar in 1807 and founded a newspaper in nearby Lebanon. He served as a US Congressman from 1813 to 1816, as a judge of the Ohio Supreme Court from 1816 to 1822, as the federal Commissioner of the General Land Office from 1822 to 1823, and as Postmaster-General from 1823 to 1829, in the cabinets of James Monroe and John Quincy Adams.

McLean stayed politically active on the Court, but with fluid loyalty; he started as a Jacksonian Democrat, then became an Anti-Jacksonian Democrat, an Anti-Masonic, a Whig, a Free Soiler, and finally ended up as a Republican. He sought (and lost) the Republican presidential nomination in 1856 and 1860. McLean was a fervent abolitionist and was the other dissenter (besides Benjamin Curtis) in the case of Dred Scott v. Sanford. McLean’s most important decision on the Court was his majority opinion in the case of Wheaton v. Peters in 1834, which established that copyright on published works exists as created by Congressional copyright law, rather than as a naturally existing right protected by common law.

McLean died in Cincinnati in March 1861. His son Nathaniel was a Union brigadier-general in the Civil War, serving at the Second Battle of Bull Run and at Chancellorsville.

Abraham Lincoln replaced McLean with Noah Swayne (1804-1884) on January 24, 1862, and served for nearly 20 years. He is the only Quaker to serve on the Supreme Court.

Noah Haynes Swayne was born in Virginia and studied medicine until his teacher died, then read law instead and passed the bar in 1823. He became an abolitionist and left the slave state of Virginia for the free state of Ohio, setting up practice in Coshocton, but moving to Columbus in 1830 when Andrew Jackson appointed him US Attorney for the District of Ohio. He was sent by the governor of Ohio to Washington in 1835 to mediate the increasingly violent border dispute between Ohio and Michigan, now known as the Toledo War. Swayne was elected to the Ohio legislature in 1836 and was an early national organizer of the Republican Party.

Swayne, who had defended fugitive slaves, had gotten his place on the Court on John McLean’s advice, and great things were expected of him. In that light, Swayne was a disappointment. He rarely wrote opinions and did nothing of great importance except write the majority opinion in 1881’s Springer v. United States, upholding (temporarily) the federal income tax instituted in 1864.

Swayne lobbied and failed twice to be elevated to Chief Justice, being passed over in favour of Salmon Chase and Morrison Waite. Swayne became feeble in his old age and was pressured into retirement by president Rutherford Hayes, which Swayne did in January 1881, on the condition that he could choose his successor. Swayne moved back to Ohio, died in NYC in June 1884, and was buried in Georgetown, DC. His son, Wager Swayne, was a major-general of the Union Army, awarded the Medal of Honor for actions at the 2nd Battle of Corinth (Mississippi, 1862) and military governor of Alabama during Reconstruction.

Swayne’s choice as his successor was fellow Ohio attorney Stanley Matthews (1824-1889), who was appointed on May 12, 1881 and served until his death. He was the only Supreme Court appointee of president James Garfield.

Thomas Stanley Matthews was born in Cincinnati, went to Kenyon, practiced law in Tennessee from 1840 to 1845, returned to Ohio and edited the Cincinnati Herald from 1846 to 1848, served as clerk to the Ohio House of Representatives, as an Ohio state senator from 1856 to 1857, as US Attorney for Southern Ohio from 1858 to 1861, and as a lieutenant-colonel of the Union Army during the Civil War, ran for Congress and lost in 1876, and served as a US Senator from 1877 to 1879.

The most important decision of Matthews’s career was the majority opinion in Yick Wo v. Hopkins in 1886. It concerned a city ordinance in San Francisco forbidding laundries in wooden houses without a permit, which was used to discriminate against the Chinese. Matthews found that a law with non-biased wording, but a biased application, still violated the 14th Amendment, an embryonic forerunner to the civil rights era some 70 years later.

Matthews died in DC in March 1889. Most of his papers are in the Rutherford Hayes Presidential Library in Fremont, Ohio.

Benjamin Harrison then nominated David Brewer (1837-1910) to the Supreme Court. He was sworn in on December 18, 1889, and served until he died. His uncle was fellow Justice Stephen J. Field.

David Josiah Brewer was born in Smyrna, in the Ottoman Empire (now Izmir, Turkey), to missionaries teaching Ionian Greeks. They returned to America in 1838, settling in Connecticut, and Brewer attended Wesleyan University, Yale, and Albany Law School. After graduating the latter in 1858, Brewer went to practice law in Kansas City, then went to Colorado to find gold, then returned empty-handed to Leavenworth, Kansas, where he was appointed Commissioner of the Leavenworth Federal Circuit Court in 1861. He was a judge of the Probate and Criminal Court of Leavenworth from 1862 to 1865, of the First Judicial District of Kansas from 1865 to 1869, of the Kansas Supreme Court from 1870 to 1884, and of the US Court of Appeals for the 8th Circuit from 1884 to 1889.

Brewer was an active, productive, influential, and surprisingly liberal judge. He fought for minority rights and women’s labour protections (he wrote the opinion for Muller v. Oregon in 1908), struck down restrictions on property rights, and contributed significantly to the doctrine of substantive due process. He likely would have dissented in the case of Plessy v. Ferguson, but his daughter had died at the same time as the trial, and so abstained from the decision. His writings underlined the basis of American common law in the tenets of Christianity, and would often write that America was “a Christian nation”.

Brewer died in March of 1910 in Washington. He was buried in Lansing, Kansas.

Brewer’s successor was Charles Hughes (1862-1948), from October 10, 1910, to June 10, 1916. He would later become Chief Justice; go back to Part 2 for his bio.

After Hughes came John Clarke (1857-1945), who was appointed after the seat was refused by Attorney-General Thomas Gregory. Clarke was sworn in on July 24, 1916, and served until September 18, 1922.

John Hessin Clarke was born in New Lisbon, Ohio, went to Western Reserve College in Cleveland, articled under his father and passed the Ohio bar in 1878. He moved to Youngstown in 1880, where he co-owned a local newspaper and was active in local politics as a reform-minded Democrat. Clarke moved to Cleveland in 1897, and became general counsel to the New York, Chicago and St. Louis Railroad. He ran for the Senate and lost in 1903, then was appointed as a judge for the U.S. District Court for the Northern District of Ohio in 1914, serving until 1916.

Clarke hated being on the Supreme Court. He disliked the routine and the loss of the independence he had as a trial court judge. He and justice James McReynolds hated each other, even though Clarke got on well on a personal level with other justices, especially Willis Van Devanter and William Day. Clarke was a legal realist, and his votes often sided with Louis Brandeis and Oliver Wendell Holmes, Jr.

Clarke quit the Court in 1922 and spent his time campaigning to get America to join the League of Nations. He had supported former Secretary of War Newton Baker for Democratic presidential nominee in 1932, but was nevertheless very supportive of FDR and the New Deal. He went very deaf in his old age, moved to San Diego in 1931, and died there in March of 1945.

George Sutherland (1862-1942) was appointed to the Supreme Court on September 5, 1922, staying until January 1938. To date he is the only Mormon to serve on the Supreme Court, albeit a lapsed one.

George Sutherland was born in Buckinghamshire, England, to parents who converted to Mormonism and moved the family to Springville, Utah, in 1863, but left the LDS church several years later. George started working at the age of 12 to support his family, and saved up enough to enroll at Brigham Young Academy, graduating in 1881. He worked on the railways for a year before enrolling at University of Michigan Law School, passing the bar in 1883. He practiced law in Provo, then moved to Salt Lake City in 1893 and was elected to the 1st Utah State Senate as a Republican in 1896. He was a US congressman from 1901 to 1903 and a US Senator from 1905 to 1917.

Sutherland was considered the leader of the “Four Horsemen” who blocked FDR’s New Deal programs. He wrote the majority opinion declaring municipal zoning laws to be constitutional in 1926’s Village of Euclid, Ohio v. Ambler Realty Co., and the majority opinion in 1936 in United States v. Curtiss-Wright Export Corp., which determined the President’s powers in conducting foreign affairs were not entirely dependent on Congressional approval.

As the New Deal gained traction, Sutherland’s influence waned on the Court. He retired in January 1938 and died in Stockbridge, Mass., in July 1942.

Stanley Reed (1884-1980) served as Sutherland’s successor from January 27, 1938 to February 25, 1957. He was the last serving justice to have no formal law degree.

Stanley Forman Reed was born on New Year’s Eve 1884 in a small town in northern Kentucky, close to Bourbon County. he got a bachelor’s degree from Kentucky Wesleyan College in 1902, another bachelor’s from Yale in 1906, studied law at Columbia and the University of Virginia without graduating, and traveled to France in 1909 to audit classes at the Sorbonne. He passed the Kentucky bar in 1910, sat in the Kentucky General Assembly from 1913 to 1917, served as an Army officer in WWI, and returned to work as a corporate lawyer specializing in the agricultural industry. He raised prize-winning Holstein cattle in his spare time.

Reed’s facility with agricultural law brought him to the attention of the federal government and was appointed general counsel to the Federal Farm Board in 1929, serving until he was appointed as general counsel to the Reconstruction Finance Corporation in late 1932, where he co-created the Commodity Credit Corporation with RFC president Jesse Jones in 1933 and helped successfully defend the Roosevelt administration’s monetary policy. FDR appointed Reed Solicitor-General in 1935, where he was able to successfully argue the legality of New Deal reforms before the Supreme Court following the collapse of the “Four Horsemen” in 1936. While there, one of his employees was a man named Alger Hiss. Reed was later subpoenaed in 1949 to testify at Hiss’s espionage trial.

After joining the Court in 1938, Reed was soon joined by his mentor, Felix Frankfurter, and his protégé, Robert Jackson. Together they would form the core of the conservative wing of the Supreme Court through most of the 1940s and 1950s. His writing was praised by Earl Warren for its clarity and decisiveness, and on social matters was often a moderate and a swing vote, but did not believe in the doctrine of incorporation, and wrote the majority opinion in Adamson v. California in 1947. Reed was the last justice to be swayed by Earl Warren to join the unanimous verdict in Brown v. Board of Education (Reed had a sort of “big fish in a small pond” attitude to segregation, wherein he believed it would be easier for blacks to succeed in a more or less parallel all-black society, rather than having to compete in America at large.) Reed also wrote the majority opinion in 1944’s Smith v. Allwright, striking down a Texas law barring blacks from voting in primaries.

Reed retired in February 1957, at the age of 73. He occasionally served on lower courts on a temporary basis until his age, frailty and illness made him move into a nursing home on Long Island. He died in April 1980, at the age of 95, making him the longest-lived justice in Supreme Court history.

Charles Whittaker (1901-1973) became a Supreme Court justice on March 22, 1957, and served until 1962.

Charles Evans Whittaker was born on a farm in Kansas and dropped out of the 9th grade. He later took private lessons from a tutor and got into the Kansas City School of Law, graduating in 1924 and becoming a corporate lawyer in Kansas City, Missouri. He was appointed a judge of the US District Court for the Western District of Missouri in 1954 and a judge of the US Court of Appeals for the 8th Circuit in 1956.

Whittaker did not commit to a strict judicial philosophy and was a swing vote on the Court. he agonized for months over his decision in the 1962 case of Baker v. Carr, concerning judicial interference with legislative redistricting, and suffered a nervous breakdown. At Chief Justice Warren’s request, Whittaker resigned from the Court at the end of that March.

In 1965 Whittaker became chief counsel to General Motors. He was a harsh critic of the Civil Rights Act and of the Rev. Dr. Martin Luther King. Whittaker died in November 1973 of an abdominal aneurysm, in Kansas City.

Byron White (1917-2002) was appointed by JFK on April 16, 1962, and served until June 1993. He is the 12th longest-serving justice in Supreme Court history, and the only one from Colorado.

Byron Raymond White Was born in Ft. Collins, Colo., and grew up in nearby Wellington. He went to UColorado at Boulder on a football scholarship, playing halfback for the Colorado Buffaloes and was made an All-American before graduating in 1938. (It was on the Buffalos that White got the nickname “Whizzer”, a name he disliked.) After college he signed with the Pittsburgh Pirates (now the Steelers), leading the NFL in rushing yards in his rookie year before leaving the league for 2 years to study at Oxford on a Rhodes scholarship. He came back in 1940 to play 2 seasons with the Detroit Tigers, becoming the highest-paid player in the league ($15,000 in 1940, or $249,600 in 2013). He served in the Navy as an intelligence officer in WWII and was awarded two Bronze Stars. After the war White went to Yale Law School, graduated magna cum laude in 1946, and clerked for Chief Justice Fred Vinson for a year before returning to Denver to practice law. White was elected to the Football Hall of Fame in 1954 and used his celebrity to campaign for JFK in 1960, and was then appointed Deputy Attorney-General (RFK’s second-in-command).

White, praised by JFK’s administration for his sharpness and humility, wrote 994 opinions in his career on the Court. He lacked any strict judicial philosophy, taking narrow, factually-based views of cases and questioned attorneys fiercely. He was an opponent of substantive due process and was one of two dissenters (besides William Rehnquist) in Roe v. Wade. He preferred serving under Chief Justice Rehnquist; he claimed he wasn’t in Earl Warren’s “circle”.

After retiring White kept a set of chambers at the federal court house in Denver. He died of pneumonia in 2002. In 1966, the NFLPA created an annual award for charity work in his honour; coincidentally, the 2000 recipient, Baltimore Ravens defensive end Michael McCrary, had, as a child, crossed paths with Byron White by being involved in the 1976 Supreme Court case of Runyon v. McCrary, which abolished racial segregation in private schools.

Ruth Bader Ginsburg (1933-present), the second woman and the first Jewish woman on the Supreme Court, was appointed in 1993 by Bill Clinton and sworn in on August 10 that year.

Ruth Joan Bader was born in Brooklyn and grew up as a devout Reform Jew. She graduated from Cornell in 1954, then married Martin Ginsburg, a tax lawyer. Bader Ginsburg got into Harvard Law School, transferred to Columbia Law School and graduated in 1959, then clerked for a judge of the US District Court for the Southern District of New York after being turned down by Justice Felix Frankfurter for being a woman. From 1961 to 1963 she was a researcher for the Columbia Law School Project on International Procedure, where she learned Swedish in order to write a book. She taught law at Rutgers from 1963 to 1972, and at Columbia from 1972 to 1980. She was also general counsel to the ACLU from 1973 to 1978. Jimmy Carter appointed her to the US Court of Appeals for the DC Circuit in 1980.

In her Senate nomination hearings, Bader Ginsburg refused to answer a number of questions on controversial opinions, pointing instead to her judicial record as proof of her convictions, a tack which established a precedent among nominees. Bader Ginsburg is most senior of the liberal wing of the Court, and is well known for being pro-choice and pro-equality, and an opponent of any strictly textual interpretation of the Constitution; she also believes in the judiciary engaging with other branches of government to form policy, a move criticized as politicizing the Court. Despite the radical difference in policy and temperament between the two, Bader Ginsburg is personally closest with justice Antonin Scalia, and the two often go to the opera together.

Ruth Bader Ginsburg is currently the oldest sitting justice on the Supreme Court, and much speculation has been made about when she may retire. She overcame colon cancer in 1999 and was hospitalized twice in 2009, then her husband died in 2010; all these events were accompanied by unrealized predictions of her retirement. She herself has said she intends to retire at the age of 82 (in 2015) to coincide with the retirement age of the first male Jewish justice, Louis Brandeis.

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