Stacking the Supreme Court Ain't Easy

Many partisans are either aghast or ecstatic that John Roberts and Samuel Alito have become the newest Supreme Court justices. Both men come with thin paper trails but conservative ideologies, and interest groups are calling this either manna from heaven or Armageddon, depending on whatever side you’re on.

The two justices represent more than two new faces. They represent the president’s efforts to remake the Supreme Court in his image and install at least two justices who meet with his views on how ideological justice is meted out in America. In fact, every president who makes a Supreme Court appointment tries to do the exact same thing.

What these presidents end up realizing is that picking the right judge that will perfectly meet their expectations is like picking the right person to be your spouse. You always think you’ve made the perfect choice, and sometimes you have, but you never know what someone will really be like five years down the road. Times change and people change, and what you thought was gospel five years ago you now regard as immaturity, if not outright idiocy. And just as big events like marriage, a new job and a new child make you see things differently, I would imagine being named one of the nine most powerful people in the government with a job for life gives Mr. Roberts and Mr. Alito a perspective that I can only imagine.

And that’s the main reason why handpicking justices is not like shooting judicial fish in a barrel. Many presidents have suddenly found that their perfect judicial soulmate either doesn’t have the ideology they expected or underwent an uncharacteristic change of heart upon assuming the bench. That’s why partisans shouldn’t be passing out champagne or hemlock with our new Supreme Court makeup. The Court’s decisions are maddeningly arbitrary depending on the strength of lawyers arguing the case and the legal merits and parameters of the case itself, all viewed by nine people who have disparate views of the Constitution.

Here’s a roundup of some twentieth century Supreme Court justices that came in with apparently rock-solid credentials and ideologies. Each President who selected them did so because they wanted to extend their respective beliefs and governing style to the Judiciary long after they were gone from office. Each President was extremely surprised and probably very unhappy with the way things turned out.

David Souter
Appointed By: George H.W. Bush
Track Record: Souter was one of the most recent “stealth” nominees who got the nomination because he didn’t have a paper trail or reputation. Smarting from the Robert Bork rejection, Republicans believed Souter was a solid conservative who would fly in under the radar.
Surprise!: A New Hampshire native, Souter was a Republican but actually retained the socially libertarian, independent streak typical to Northeastern Republicans. On abortion and the government’s right to seize private property, he has been giving Republican partisans angina since joining the Court.

Harry Blackmun
Appointed by: Richard Nixon
Track Record: A lifelong Republican and a background in tax-related cases helped Nixon after two previous nominees (Haynsworth and Carswell) fell through. He was also Chief Justice’s Warren Burger’s best friend and the two were called the “Minnesota Twins” because of their background and similar voting record.
Surprise!: Blackmun wrote the majority opinion in Roe v. Wade and became one of the court’s foremost liberals, championing gay rights, affirmative action and an anti-death penalty spokesman. By the end of his tenure, Burger was no longer speaking with the Twin who was best man at his wedding.

Oliver Wendell Holmes, Jr.
Appointed by: Theodore Roosevelt
Track Record: His father was a famous poet, and Holmes was one of the first judges to recognize the rights of trade unions and workers, and was known for balancing property rights with majority rule.
Surprise!: Holmes steadily relied on morality over due process, and endorsed sterilizing retarded adults with his words, “Three generations of imbeciles are enough.” He was extremely disparaging to lower class and minorities, and voted to weaken the Sherman Antitrust Act. Trustbusting Teddy was probably not amused.

Felix Frankfurter
Appointed by: Franklin Delano Roosevelt
Track Record: Founded the ACLU, tried to save Sacco and Vanzetti and one of America’s first Zionists. Also one of FDR’s closest advisors.
Surprise!: Frankfurter became the poster boy for judicial restraint, repeatedly voting against decisions that would limit the authority of the executive and legislative branches of government. Except for ending segregation, he repeatedly was in the minority on many of the progressive Warren court votes. He retired in 1962, unfortunately ruining the possibility of a Frankfurter/Burger Court.

Hugo Black
Appointed by: Franklin Delano Roosevelt
Track Record: Former KKK member who had never been a judge. Enough said?
Surprise!: The biggest surprise of all. Black served 34 years on the Supreme Court and became one of its most erudite members and intellectual powerhouses. Wrote majority opinions that championed civil rights and civil liberties, wrote eloquent decisions that denounced McCarthyism and his views on free speech and due process became court dogma, and are still practiced today.

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FDR’s Court Packing: No president was more blatant about stacking the Supreme Court than FDR. After the Court threw out much of his New Deal legislation in his first term, FDR called the institution “Nine old men waiting to die.” He introduced a bill that would allow him to appoint a new justice for each sitting justice that was over 70 (six of them at the time). The Democratic Party, including Roosevelt’s VP, attacked it as an abuse of presidential authority, and the bill went nowhere. But the older justices started retiring, and by the end of his tenure, FDR had appointed eight associate justices and one chief justice.