Supreme Court Season, Part 11

Joseph Bradley, George Shiras Jr., William R. Day, Pierce Butler, Frank Murphy, Tom C. Clark, Thurgood Marshall, Clarence Thomas

Joseph Bradley, George Shiras Jr., William R. Day, Pierce Butler, Frank Murphy, Tom C. Clark, Thurgood Marshall, Clarence Thomas

The last time a new seat was created on the Supreme Court was in 1869, when Congress bumped the number back up to nine after the hated Andrew Johnson left office. Ulysses Grant’s first choice for the new seat was Ebenezer Hoar, the Attorney-General; but Hoar’s stance against unregulated patronage in civil service hiring and his opposition to the impeachment of Andrew Johnson worked against him, and his nomination was defeated in the Senate in December 1869. Grant, on Hoar’s advice, then chose Joseph Bradley (1813-1892), who was approved and took office on March 21, 1870.

Joseph Philo Bradley was born in a small town near Albany and was given a loan by the local Dutch Reformed Church to study for the clergy at Rutgers; he switched to law instead and graduated in 1836. He was a school headmaster after graduation until a classmate persuaded him to read law under the Office of the Collector for the Port of Newark, and he passed the bar in 1839, striking out on his own to practice patent and railroad law in New Jersey and gained a nationwide reputation as a commercial litigator.

In his findings Bradley took a broad view of Congress’s power to regulate commerce, but a narrow interpretation of the 14th Amendment. He was responsible for bringing United States v. Cruikshank to the Supreme Court’s attention in 1875 (he joined Nathan Clifford’s dissent, which found the Bill of Rights also restricted individuals, but also moved to rescind the rioters’ indictments, on the grounds that the indictments were worded too vaguely)and also decided the case of In re Guiteau, in which Bradley denied a writ of habeas corpus (used to remove someone from unlawful detention) to Charles Guiteau, the man who assassinated James Garfield. Bradley was the justice who replaced David Davis on the 1876 election commission, thereby throwing the presidency to Rutherford Hayes.

Bradley became very sick, most likely of tuberculosis, and left the Court to recover in October of 1891. He died the following January.

George Shiras, Jr. (1832-1924) replaced Bradley on July 26, 1892. To date, Shiras is the only person to be elevated to the Supreme Court without any prior elective, governmental or judicial experience whatsoever.

George Shiras, Jr. was born in Pittsburgh and went to Ohio U and Yale. He dropped out of Yale Law School and practiced law in Dubuque, Iowa, for three years until 1858, when he returned to Pittsburgh. He became a bigwig on the legal scene in Pittsburgh over the next 34 years as a attorney for major industrial interests; his one small brush with politics came when he agreed to be one of Pennsylvania’s sinecural electors in the presidential election of 1888.

George Shiras wrote 259 opinions over 11 years on the Court. He was the swing vote in 1895’s Pollock v. Farmers’ Loan & Trust Co., which overturned the federal income tax.

Shiras submitted his resignation in February 1903, as he had promised himself he would only sit on the Court for 10 years. He lived for another 21 years, splitting his time between vacation homes in Florida and Michigan, and died of pneumonia in August 1924 at his home in Pittsburgh.

Theodore Roosevelt chose William R. Day (1849-1923) to replace Shiras, and he took his seat on March 2, 1903.

William Rufus Day, the son of a justice of the Ohio Supreme Court, was born in Ravenna, Ohio (near Akron) and graduated from UMichigan in 1870 before studying law for a year and settling in Canton, Ohio, to set up practice. From 1872 to 1897 he was a criminal and corporate lawyer and became friends with fellow Canton attorney William McKinley. Day was an advisor to McKinley during his campaigns for Congressman, Governor, and President, and McKinley appointed Day Assistant Secretary of State in 1897 and promoted him to Secretary of State in 1898, but Day resigned five months later to join the peace commission following the Spanish-American War. Day returned from the peace treaty’s signing in Paris in February 1899 and was appointed to the US Court of Appeals for the 6th Circuit.

In 19 years, Day wrote 439 opinions, but only 18 dissents. He was very anti-trust and a frequent supporter of breaking up monopolies. He wrote the court opinion in 1908’s Bobbs-Merrill Co. v. Straus, which established a rule for determining distribution rights in copyright law known as the “first-sale doctrine”; 1913’s Bauer & Cie. v. O’Donnell, which found that the creation of licensing agreements do not extend the length of patent rights; Weeks v. United States of 1914, which found that evidence collected by the federal government in violation of the 4th Amendment could be found inadmissible in court; and Buchanan v. Warley of 1917, which ruled municipal ordinances segregating neighbourhoods to be unconstitutional. Interestingly, records show that Day had a law clerk regularly come in to interrupt arguments in the case of Standard Sanitary Manufacturing Co. v. United States in 1912 with updates on the World Series. (The winners were the United States, which broke up a cartel of 49 plumbing-fixture companies known as the Bathtub Trust, and the Red Sox, which beat the Giants 4-2 in the 10th inning, in the 8th game of the series.)

Day retired in November 1922 and briefly served on a commission to adjudicate war claims against Germany, where his title was, bizarrely, “Umpire”. He died in July 1923 on Mackinac Island, in the mouth of Lake Michigan. He was buried in Canton.

Pierce Butler (1866-1939) was appointed to the Supreme court on December 21, 1922, by Warren Harding, and took office on January 2, 1923. He served for 16 years.

Pierce Butler was born to poor Irish immigrants in a log cabin in Minnesota. He went to Carleton College in Northfield, Minn., and passed the bar in 1888. He served as county attorney for Ramsey County (including St. Paul) from 1892 to 1898, and moved to Canada from 1912 to 1922 to practice railway law in Toronto.

Pierce Butler was one of the “Four Horsemen” who stymied the New Deal during the Depression. He believed in the doctrine of incorporation and was the lone dissenter in Palko v. Connecticut of 1937, which found that double jeopardy did not apply to the states, and the lone dissenter in 1928’s Buck v. Bell, which found that goverments had the right to sterilize the feeble-minded. (History would eventually prove him right on both counts.) He also dissented in 1928’s Olmstead v. United States, which upheld the legality of federal wiretapping.

Butler died in DC in November of 1939 and was buried in St. Paul.

Frank Murphy (1890-1949) was appointed to the Supreme Court on January 18, 1940. He was one of only five justices of the Supreme Court to never get married, the others being James McReynolds, Benjamin Cardozo, David Souter and Elena Kagan.

William Francis Murphy was born to an Irish family in Michigan, on the shores of Lake Huron northeast of Saginaw. He got an LLB from the University of Michigan in 1914, then studied law at Lincoln’s Inn in London and did graduate work at Trinity College, Dublin. He served in Germany as a Captain in World War I and came back to practice law in Detroit, and soon embarked on holding a string of public offices: First Assistant US Attorney for the Eastern District of Michigan from 1919 to 1923, judge of the Recorders’ Court of Detroit from 1923 to 1930, Mayor of Detroit from 1930 to 1933, and Governor-General of the Philippines from 1933 to 1935, a position abolished by the Tydings-McDuffie Act of 1934 and replaced by the transitional post of High Commissioner, in which Murphy served from 1935 to 1936; he was then governor of Michigan from 1937 to 1939 and Attorney-General from 1939 to 1940.

In the nine years Murphy was on the Court he wrote 199 opinions, 68 of them dissenting. He took an expansive view of civil liberties and was nicknamed “the Saint” by Felix Frankfurter for making decisions based on passion rather than reason. He dissented vehemently in Korematsu v. United States, calling it “the legalization of racism”. (That was actually the very first time the word “racism” was used in a Supreme Court opinion.) During World War II he served as an infantry officer at Ft. Benning, Ga., during recesses of the Court, while also serving as chairman of both the the National Committee against Nazi Persecution and Extermination of the Jews and of the Philippine War Relief Committee.

Murphy died of a coronary thrombosis in Detroit in July 1949. He was engaged to be married that August.

Tom C. Clark (1899-1977) joined the Supreme Court on August 19, 1949, and served for 18 years.

Thomas Campbell Clark was born in Dallas and served for a spell in the Texas National Guard during World War I before he got into UT Law, graduating in 1922 and practicing privately in Dallas until 1937, except for a period between 1927 and 1932 when he became the city’s civil DA. He joined the federal Justice Department in 1937 as a specialist in war risk litigation, co-ordinated the establishment of Japanese internment camps in 1942, became head of the Justice Department’s anti-trust division in 1943, headed its criminal division from 1943 to 1945, and served as Attorney-General from 1945 to 1949.

Clark was a conservative justice, and Truman later regretted appointing him. Nevertheless, he opposed segregation and later proved to be a crucial vote in expanding civil liberties in the Warren Court. he wrote the majority opinion in 1961’s Mapp v. Ohio, which used the incorporation doctrine to apply the rules on searches and seizures in the 4th Amendment to state law.

In 1967 Lyndon Johnson appointed Ramsey Clark, Tom C. Clark’s son, as Attorney-General. Tom C. Clark saw this as a conflict of interest and assumed senior status on June 12, effectively retiring. He served as a visiting judge to lesser federal courts and as a director of the Federal Judicial Center before he died in NYC in the summer of 1977.

Thurgood Marshall (1908-1993), the first black person – the first visible minority – to become a justice of the Supreme Court, the justice more revered than nearly any other member of the Supreme Court, was nominated by president Lyndon Johnson on June 12, 1967, was confirmed by the Senate by a vote of 69 to 11 on August 30, and was sworn in on October 2.

Thoroughgood Marshall (he changed it in second grade to make it easier to spell) was born in Baltimore and went to Lincoln University in Oxford, Penn., to become a dentist, and was suspended twice in his freshman year for hazing. He started getting serious about school and law after getting married in 1929, graduating from Lincoln and going to Howard University Law School in DC, graduating in 1933. In 1936 he set up private practice in Baltimore, and also started his work with the NAACP. He became chief counsel to the NAACP in 1940 and argued 32 cases before the Supreme Court in that role, of which he won 29, including Brown v. Board of Education. During this time he became friendly with FBI director J. Edgar Hoover and privately encouraged the FBI’s campaign to discredit maverick civil rights leader T.R.M. Howard. President Kennedy appointed Marshall to the US Court of Appeals for the 2nd Circuit in 1961 and President Johnson appointed him Solicitor-General in 1965, where he won 14 of the 19 cases he argued for the government before the Supreme Court.

Marshall was a liberal justice and a supporter of individual liberties, allying most often with William Brennan. He was very strongly opposed to the death penalty, voting against it at every opportunity. He wrote the decision for 1976’s TSC Industries, Inc. v. Northway, Inc., which set out a rubric used to this day in securities law concerning the materiality of false or misleading statements. He wrote a dissent arguing against hiring policies favouring veterans in Personnel Administrator of Massachusetts v. Feeney of 1979 because such policies would (at the time) be biased against women applicants.

Marshall retired in 1991 and died of heart failure at Bethesda in 1993. The Baltimore airport, the law school of Texas Southern University, the central office building for the federal court system in Washington, and the law library of the University of Maryland are named after him, and has a feast day (May 17) in the liturgical calendar of the Episcopal Church of America. his son, Thurgood Marshall Jr., is chairman of the Board of Governors of the US Postal Service.

Clarence Thomas (1948-present) was chosen by George Bush Sr. to replace Marshall and took his seat on October 23, 1991. His confirmation hearings were turned into tabloid fodder by the accusations of Anita Hill, a subordinate, who claimed Thomas sexually harassed her. Thomas was confirmed by a vote of 52 to 48.

Clarence Thomas was born in the small Gullah-speaking coastal town of Pin Point, Georgia, and grew up in Savannah. He attended the College of the Holy Cross in Worcester, Mass., and graduated from Yale Law School in 1974. He was an assistant attorney-general in Missouri from 1974 to 1977, starting in the criminal division and moving on to revenue and taxation. He eventually moved to Washington, DC, to head the Office of Civil Rights at the Department of Education from 1981 to 1982, then was chairman of the EEOC from 1982 to 1990 and a judge of the US Court of Appeals for the DC Circuit from 1990 to 1991.

Thomas, nicknamed “Scalia’s Shadow” for his frequent joining to Antonin Scalia’s opinions, is a conservative justice. He is in favour of interpreting the Constitution literally (also known as “strict construction”) and supports the principle of stare decisis. He interprets the 1st Amendment more broadly than almost any other justice, but interprets the 4th Amendment very narrowly. His decisions have limited federal use of the power to regulate interstate commerce; especially in his concurrences in 1995’s United States v. Lopez and in 2000’s United States v. Morrison, which limited that power strictly to actual economic activities.


And that is that, every justice ever to serve on the Supreme Court of the United States. As an addendum, I suggest you go here to find a very insightful look into the Court’s latest major cases, Fisher v. University of Texas (affirmative action), United States v. Windsor (gay marriage), and Shelby County v. Holder (the Voting Rights Act).


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