The Supreme Court

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  • • From 1789 through the term ending last spring all but four Presidents have made appointments to the Supreme Court: William Henry Harrison, Zachary Taylor, Andrew Johnson, and Gerald Ford. Only Johnson was the victim of congressional interference to prevent him from doing so. Three vacancies occurred during his administration, but because of bitter conflict over control of Reconstruction, Congress in 1866 reduced the number of justices on the Court from ten to seven.
  • • George Washington made the greatest number of appointments—thirteen, including four Chief Justices—but only nine consented to serve. In this century Franklin Roosevelt appointed nine men, including one Chief Justice; Mr. Justice Douglas, who took his seat in 1939, is the last of Roosevelt’s appointees on the current Court.
  • • Although Presidents have traditionally appointed nominees from their own political parties to the federal judiciary as a whole—in this century the average is 92 per cent for all appointments—twelve Supreme Court justices have come from the opposition party. In this century President Eisenhower, a Republican, was the last executive to honor this nonpartisanship, with his appointment of Mr. Justice Brennan, a Democrat.

Membership on the Court is currently set at nine. The figure is determined by Congress and in the early years fluctuated with the ebb and flow of the Court’s business and prestige. The Judiciary Act of 1789 initially fixed the number at six. This was reduced to five in 1801 and then raised to six in 1802, to seven in 1807, to nine in 1837, and still further to its highest level, ten, in 1863. The membership was cut to seven in 1866. The current figure was established in 1869. In 1937 Franklin Roosevelt asked for authority to appoint an additional justice whenever an incumbent reached seventy and failed to retire—a courtpacking scheme that might have added as many as six members to the Court. The plan was rejected by the Senate Judiciary Committee after lengthy and bitter public hearings. The nine-member Court was most recently reaffirmed in the Judiciary Act of 1948.

Exactly one hundred men have served on the Court to date, fifteen of them as Chief Justice. No woman has ever been presented for appointment, and leading minority groups have generally been ignored. As a result the Court historically reflects a homogeneous profile much like that associated with the Presidency.

  • • With two exceptions all of the 100 justices have come from English or Northern European stock. Fifty-six are of English origin; 23, Scotch-Irish; 7, Cerman; 5, Irish; 4, French; 2, Dutch; and 1, Scandinavian. Benjamin Cardozo was descended from Sephardic Jews from Spain; Thurgood Marshall is thus far the Court’s only black, appointed in 1967.
  • • Six justices were born abroad. Three of these (James Wilson, James Iredell, and William Paterson) served on the early Court and were naturalized, like most of the Revolutionary generation, by the ratification of the Constitution. The other three served in this century. One, David Brewer, was born in Asia Minor to American parents. The remaining two were naturalized: George Sutherland (born in England) and Felix Frankfurter (born in Austria).
  • • The 100 justices were drawn from 31 states and the District of Columbia at the time of their appointments, but 8 states account for 58 of the total: New York, 13; Ohio, 9; Massachusetts, 8; Virginia, 7; Pennsylvania, 6; and 5 each from New Jersey, Kentucky, and Tennessee.
  • • In regional distribution New England and the Middle Atlantic states together have contributed 37 justices; the South, including the District of Columbia, 35; the Midwest, 21; the West, 7. On the current Court three members are from the West, three from the Midwest, two from the Middle Atlantic area, and one from the South.
  • • The Court records show 89 of the 100 justices as Protestants, the bulk of them Episcopalian (24), Presbyterian (19), or indicating no denomination (25). Six have been Roman Catholic—including two Chief Justices, Roger B. Taney and Edmund D. White—and five have been Jews. The current Court numbers eight Protestants and one Roman Catholic (Mr. Justice Brennan).
  • • All the justices have been lawyers, and most of them have attended college. Between 1789 and 1900 five were privately tutored, and four, including John Marshall, had no formal education of any kind. Of the 43 justices appointed in this century only James Byrnes did not attend college or law school. Like Marshall before him, Byrnes studied law on his own. He was admitted to the South Carolina bar in 1903.
  • • Four colleges—or their law schools—account for 42 justices: Harvard, 14; Yale, 12; Princeton, 9; and Columbia, 7. On the current Court, Harvard graduated 3; Yale, 2; and Columbia, Stanford, Howard, and St. Paul College of Law, 1 each.

The most striking feature in the Court’s membership—and perhaps the most surprising—is its historic lack of judicial experience. Nearly half (forty-seven) of the hundred justices had never served in a judicial role prior to their appointment to the Supreme Court. Of those with service on the state or federal bench only twenty-two had ten or more years of experience. Among the Chief Justices six had no prior court service, including John Marshall, Roger B. Taney, and Earl Warren. On the current Court, Chief Justice Burger and Associate Justices Stewart, Marshall, and Blackmun all served on the courts of appeals.