In 1836 Congress approved the increase of the Supreme Court from seven to nine justices. The junior of these two new justices was John McKinley (1780-1852), appointed on April 22, 1837, by Martin van Buren.
John McKinley was born in northern Virginia and moved to Kentucky as a baby. He passed the Kentucky bar in 1800 and practiced in Louisville and Frankfort before moving to Huntsville, Alabama, in 1819. He served for a while in the state assembly before serving as a US Senator from 1826 to 1831, and again from March to April of 1837.
McKinley’s service consisted of 14 years of competent yet entirely unremarkable service. He died in the summer of 1852 in Louisville.
Millard Fillmore, his term nearly over, selected a number of candidates for the empty seat, none of which panned out. One of the men who refused Fillmore’s offer, Judah S. Benjamin of Louisiana, would have been the first Jew on the Supreme Court had he accepted. (Benjamin’s life is fairly incredible as it was: he served as Secretary of State in the Confederate government, and after the Civil War he moved to England and became a barrister of the Queen’s Counsel.) The seat stayed vacant until March 23, 1853, when president Franklin Pierce appointed John A. Campbell (1811-1889).
John Archibald Campbell was born in northern Georgia and was a child prodigy, graduating from the University of Georgia at 14. He enrolled at West Point, but dropped out when his father died. (Campbell was at West Point around Christmas of 1826, during which time there was a massive fracas known as the Eggnog Riot, for which 20 cadets were court-martialed and nine were expelled. Campbell was involved with the riot, but not charged, as was future Confederate president Jefferson Davis. Future Confederate general Robert E. Lee was at West Point at the time as well, and testified at the court-martial hearings.) Campbell was admitted to the Georgia bar at the age of 18, and later moved to Montgomery, Alabama, before settling in Mobile in 1839 to practice law and serve intermittently in the state legislature. He became a colonel of the US Army in 1836 by serving under Gen. Winfield “Old Fuss and Feathers” Scott in the Second Creek War, which forcibly removed the Muscogee Creek Natives from Alabama and deported them to Oklahoma.
Campbell did little on the Supreme Court. He resigned on April 30, 1861, upon learning of the attack on Ft. Sumter, and returned to Alabama. He served as Assistant Secretary of War to the Confederate government from 1862 to 1865, and was imprisoned for 6 months in Georgia after the Confederate capital at Richmond fell to Union forces. After the war he practiced law in New Orleans, and died in the spring of 1889 in Baltimore.
Abe Lincoln replaced Campbell with David Davis (1815-1886), a close friend and colleague, on October 17, 1862. He served until he was elected to the Senate in 1877. He is the only judge of the Supreme Court with no recorded religious affiliation.
David Davis was born to a rich family in Maryland and went to Kenyon College and to Yale, graduating in 1835. He then moved to Bloomingdale, Illinois, to practice law. He was a judge of the Illinois 8th Circuit from 1848 to 1862, was a delegate to the 1860 Republican National Convention, and was Lincoln’s campaign manager during the 1860 election.
On the Court, Davis wrote the majority opinion in 1866’s Ex parte Milligan, which found that military courts could not try civilians if civil courts are available. Politically, Davis was an Independent, although he tried and failed to receive the Liberal Republican Party presidential nomination in 1872.
In 1876 disputes over results in several states led to a tie in the election for President. A bill was passed to appoint a deciding commission composed of five members each from the House, Senate and Supreme Court; it would also have 7 Democrats, 7 Republicans, and Davis, the Independent. The Democrat-controlled legislature of Illinois, hoping to curry favour, elected Davis to the Senate. It backfired, however, since Davis resigned from both the Court and the commission and was replaced by a Republican justice, resulting in Republican Rutherford Hayes winning by a vote of 8 to 7.
Davis served one term in the Senate, from 1877 to 1883. He was also president pro tempore of the Senate from 1881 to 1883, during which time he was next in line to the presidency, if anything were to happen to President Chester Arthur (until 1967, if the vice-president assumed the presidency, as Arthur did after James Garfield’s assassination, the vice-presidency stayed vacant until the next election).
Davis died in Bloomington in June 1886. At the time of his death he was the largest private landowner in Illinois.
Rutherford Hayes, fresh off his win, replaced Davis with John Marshall Harlan I (1833-1911), who took office on November 29, 1877. He was the grandfather of John Marshall Harlan II, another Supreme Court justice.
John Marshall Harlan I was born near Danville, Kentucky, and went to law school at Transylvania University. He served as adjutant general of Kentucky from 1851 to 1859, starting as a Whig and later joining the Know-Nothings before supporting the Constitutional Union Party during the 1860 election. He was an anti-secessionist and served as a colonel in the 10th Kentucky Infantry until resigning to take care of his family in 1863. He was elected Attorney-General of Kentucky later that year, serving until 1865. He joined the Republicans in 1868 and practiced law in Louisville.
Harlan loved being on the Supreme Court, got along well with his benchmates and did good work, supplementing his income by teaching law at Columbian Law School (now part of George Washington University). He was the only justice to dissent from Plessy v. Ferguson, and also dissented from Lochner v. New York. He was called “the Great Dissenter”.
Harlan died in October 1911 in Washington after 33 years of service, the sixth-longest tenure in Supreme Court history.
Mahlon Pitney (1858-1924) joined the Court on March 13, 1912, to replace Harlan. Pitney was one of two justices (with Willis Van Devanter) to be appointed by William Howard Taft as President and serve under him as Chief Justice.
Mahlon Pitney was born in Morristown, New Jersey, and graduated from Rutgers in 1879. He served as a Republican Congressman from 1895 to 1899, as a New Jersey state senator from 1898 to 1901, an associate justice of the New Jersey Supreme Court from 1901 to 1908, and Chancellor of the New Jersey Supreme Court from 1908 to 1912.
Pitney was a social Darwinist, libertarian and believer in substantive due process. His most important decision was the court opinion for 1917’s New York Central Railroad Co. v. White, which ruled that employers could be held liable for workplace injuries regardless of fault.
Pitney resigned from the Supreme Court in 1922 after suffering a stroke. He died in DC in December 1924. his great-grandson was Christopher Reeve, the best Superman.
Edward T. Sanford (1865-1930) was appointed on January 29, 1923, and served a little over 7 years.
Edward Terry Sanford was born in Knoxville, Tennessee. He graduated from the University of Tennessee in 1883, and from Harvard Law School in 1889, then practiced in Knoxville and lectured at UTennessee School of Law from 1898 to 1907. He served as US Assistant Attorney-General from 1907 to 1908, where he was the lead prosecutor in 1907’s United States v. Shipp, the Supreme Court’s only criminal trial. (Guilty!) He sat as a judge of the US District Court for the Middle and Eastern Districts of Tennessee from 1908 to 1923.
Sanford was a decidedly conservative justice, frequently siding with Chief Justice Taft. He wrote 130 opinions in his time on the Supreme Court, the most important being the majority opinion in Gitlow v. New York in 1925. It upheld a state ban on anarchist literature, but it also implied that the 14th Amendment obliged states to comply with some sections of the Bill of Rights. This was the birth of the doctrine of incorporation, without which the Civil Rights Era wouldn’t have happened.
Sanford died of kidney failure on March 8, 1930, a few hours before William Howard Taft died. He was buried in Knoxville.
Herbert Hoover nominated North Carolina’s John J. Parker to the vacancy; however, his nomination was opposed by labour groups, and was defeated in the Senate. Hoover then filled the spot with Owen Roberts (1875-1955) on May 20, 1930. Throughout World War II he was the only Republican appointee on the Supreme Court.
Owen Josephus Roberts was born in Philadelphia and graduated at the top of his class from UPenn Law School in 1898. He was an assistant DA in Philly and was appointed by Calvin Coolidge to investigate the Teapot Dome Scandal in 1923, leading to the conviction and imprisonment of Secretary of the Interior Albert Fall for bribe-taking. Roberts then returned to private practice until 1930.
Roberts was a swing vote on the Court, and his leanings toward the opinions of justices McReynolds, Sutherland, Butler and Van Devanter agaist New Deal legislation frustrated FDR to the point where he planned to make a 15-seat Supreme Court stacked with liberal justices. Roberts’s 1937 switch to the liberal side in West Coast Hotel Co. v. Parrish legitimized minimum-wage legislation, ended the Lochner Era and put an end to FDR’s court-stacking plans, making Roberts’s decision “the switch in time that saved the Nine”. Roberts was also concerned with civil liberties: he dissented on Korematsu v. United States and wrote the majority opinion in 1938’s New Negro Alliance v. Sanitary Grocery Co., which safeguarded the right to boycotts based on discriminatory hiring practices.
While on the Court Roberts chaired two commissions, both named after him. The first, in 1942, studied America’s missteps before and during the attack on Pearl Harbor; and the second, in 1943, co-ordinated Allied efforts to preserve works of art and archival materials in war zones.
Roberts was disturbed by the result-oriented liberalism of the Court, and relations grew strained between him and his fellow justices. He resigned in July 1945 and served as Dean of UPenn Law School from 1948 to 1951. He died in the spring of 1955 at his farm in Chester County, Penn., after being ill for four months.
Harold Hitz Burton (1888-1964) was put on the Court on September 22, 1945, by Harry S Truman. He was the last sitting member of Congress to be appointed to the Supreme Court.
Harold Hitz Burton was born in Jamaica Plain, a suburb of Boston; his father, a dean at MIT, had went with Robert Peary on expeditions to the North Pole. Harold went to Bowdoin College in Maine and graduated from Harvard Law School in 1912. He worked as an attorney for power companies in Salt Lake City and Boise until World War I, when he saw action on the Western front as an infantry captain, earning the Belgian Croix de Guerre. Returning home, he practiced law in Cleveland and served as Mayor of Cleveland from 1936 to 1940. He was elected to the Senate in 1940 and became good friends with fellow Senator Harry Truman.
Burton’s style as a judge was dispassionate and even-handed. It was also uneventful. His most important contribution was his help in ensuring a unanimous verdict in Brown v. Board of Education.
Later in life Burton suffered from Parkinson’s Disease and he retired in October 1958. He died of kidney failure in DC in the fall of 1964.
Ike Eisenhower replaced Burton with Potter Stewart (1915-1985), who became a justice on October 14, 1958.
Potter Stewart was born while his parents were on vacation near Lansing, Michigan; he grew up in Cincinnati. He went to Yale (and was in the Skull and Crossbones) and graduated in 1937, then went to Yale Law School (with Gerald Ford and Byron White) and graduated in 1941. He served on oil tankers in the Naval Reserve in World War II and then practiced law and sat on the city council in Cincinnati. He was appointed to the US Court of Appeals for the 6th Circuit in 1954 to replace the late Judge Xenophon Hicks, and served until 1958.
Stewart sat firmly between extremes of ideology. He dissented on Griswold v. Connecticut based on his denial of a constitutional right to privacy, but called the contraceptive ban at the heart of the case “an uncommonly silly law”. He was in the majority for Furman v. Georgia, Gregg v. Georgia, and Roe v. Wade, but was the lone dissenter in the 1967 case of In re Gault, which extended Miranda rights to minors.
But Potter Stewart is best known far and wide for a line in his concurring opinion in the 1964 case of Jacobellis v. Ohio. At issue was whether a state government could ban the showing of a film it deemed obscene. Stewart found that the Constitution protected all forms of obscenity short of “hardcore pornography”. In trying to define hardcore pornography, he wrote, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.” Forever thereafter, “I know it when I see it” became synonymous with Potter Stewart and hardcore pornography. Stewart later admitted the opinion was judicially untenable, and recanted it in Miller v. California in 1973.
Potter Stewart retired in June 1981 to spend time with his grandchildren while he still had his health. He appeared in some PBS specials about the Constitution with CBS News veteran Fred Friendly, and Stewart died of a stroke while on vacation in New Hampshire in December 1985. soon thereafter, Watergate muckraker Bob Woodward revealed Stewart had been the primary source for The Brethren, Woodward’s book looking behind the scenes of the early Burger Court.
Sandra Day O’Connor (1930-present), the first female justice of the Supreme Court, was put there by Ronald Reagan on September 21, 1981. She served nearly 25 years, making her the longest-serving female justice (and 26th overall).
Sandra Day was born in El Paso and grew up on a cattle ranch in Arizona. She graduated from Stanford in 1950 and married John Jay O’Connor III, a lawyer, in December 1952, 6 months before graduating from Stanford Law School. She stayed in California and was an unpaid deputy county attorney in San Mateo (after over 40firms refused to hire her because she was a woman) before returning to Arizona to be the state Assistant Attorney-General from 1965 to 1969. She served in the state senate from 1969 to 1975 and was a judge of the Maricopa County (which includes Phoenix) Superior Court from 1975 to 1979 before being elevated to the Arizona State Court of Appeals.
Day O’Connor was a conservative justice, although a rightward shift in the Court made her the swing vote in the later years of her tenure (for example, she was the deciding vote in Bush v. Gore). She was furthest away, ideologically, from Clarence Thomas, and almost never joined to his opinions. she considered cases narrowly and aimed to avoid expanding law by herself, but joined the majority and wrote a concurring opinion condoning homosexual freedoms in Lawrence v. Texas.
Sandra Day O’Connor wrote a letter to the President on July 1, 2005, announcing her intent to resign, which she did on January 31, 2006. She was made the ceremonial Chancellor of the College of William and Mary from 2005 to 2012. She is currently a trustee of the Rockefeller Foundation and still hears cases as a substitute federal judge. Her husband died of Alzheimer’s in 2009.
George W. Bush’s initial replacement for Sandra Day O’Connor was John Roberts, but after William Rehnquist died it was changed so that Roberts would succeed Rehnquist as Chief Justice instead. Bush then put forward Harriet Miers, a Texan lawyer serving as White House Counsel;, her lack of qualifications caused such a stir that her candidacy was withdrawn on October 27, 2005. Then Samuel Alito (1950-present) was nominated on November 10, confirmed and sworn in on January 31, 2006.
Samuel Anthony Alito, Jr. was born in Trenton, New Jersey, and raised in its suburbs. He was in the Army ROTC while at Princeton , studied for a year in Italy, and upon graduating in 1972 was a commissioned officer in the US Army Signal Corps and placed in the Army Reserve. He was on active duty for the last four months of 1975 after he graduated from Yale Law School, and was honourably discharged in 1980 as a captain. He was Assistant US Attorney for New Jersey from 1977 to 1981, Assistant to the Solicitor-General from 1981 to 1985, and Deputy Assistant to the Attorney-General from 1985 to 1987, then was US Attorney for New Jersey from 1987 to 1990 before being appointed to the US Court of Appeals for the 3rd Circuit in 1990, serving until 2005. Concurrently, he was an adjunct professor at Seton Hall University Law School in Newark from 1999 to 2004.
Alito is a reliably libertarian conservative justice and frequently sides with Antonin Scalia and Clarence Thomas. He wrote a concurrence in the 2007 case of Morse v. Frederick in which he agreed that speech advocating drug use could be banned in public schools, he said that any such ban could not interfere with political free speech, such as debate on the legalization of medical marijuana. He was the sole dissenting vote in the 2011 case of Snyder v. Phelps, in which he believed that protests at funerals infringed on the rights of the grieving and could be subjected to prohibitions. He joined the majority in 2013’s Shelby County v. Holder in striking down section 4(b) of the Voting Rights Act for relying on data for determining racial prejudice that had been out of date for over 40 years, and dissented in National Federation of Independent Business v. Sebelius, United States v. Windsor and Hollingsworth v. Perry.