Out of Order

by Sandra Day O'Connor

  President Reagan also appointed Antonin Scalia and Anthony Kennedy as Associate Justices, in 1986 and 1988, respectively. Both continue to sit on the Court. Indeed, of the ten Justices who have been appointed since my own confirmation, only Justice David Souter, who was appointed by President George H. W. Bush in 1990, and I have retired.

  The others all remain active. Clarence Thomas, appointed in 1991 by President George H. W. Bush, replaced Justice Marshall. Ruth Bader Ginsburg and Stephen Breyer, appointed by President Bill Clinton in 1993 and 1994, respectively, replaced Justice White and Justice Blackmun. Both Justice Thomas and Justice Ginsburg were, at the time of their nominations, federal judges on the U.S. Court of Appeals for the District of Columbia Circuit. Justice Breyer, meanwhile, had been Chief Judge of the First Circuit and based in Boston, Massachusetts.

  What followed was a remarkable eleven-year stretch during which there were no changes of personnel on the Court. Justice Breyer remained the junior justice for those eleven years. In 2005, however, the nation saw a rapid succession of new vacancies and nominations to the Court. President George W. Bush appointed John G. Roberts and Samuel Alito to serve as Chief Justice and Associate Justice, in 2005 and 2006, respectively, filling the vacancies left by Rehnquist and myself. Harriet Miers, a Texan woman then serving as the White House Counsel, was initially nominated to the position that Justice Alito would eventually fill. President Bush, however, withdrew Miers’s nomination at her request before the Senate Judiciary Committee even began deliberating.

  Most recently, President Barack Obama appointed two more female Justices, Sonia Sotomayor and Elena Kagan, in 2009 and 2010, respectively, following the retirements of Souter and Stevens.

  As of this writing, there have been 112 Justices who were confirmed and actually served on the Court. By contrast, 27 Supreme Court nominations have failed. Of those 27, the Senate formally rejected 11, postponed 3, tabled 5, and took no action in 4. The remaining 4 nominations were withdrawn by the President.17

  There are no legal or constitutional requirements for a federal judge or justice, although today it would be highly unlikely that a President would nominate a federal jurist who had no law degree and no experience as a lawyer or judge. The last Justices of the Supreme Court who did not have a law degree were Justice Robert Jackson and Justice Stanley Reed, both appointed by President Franklin Roosevelt.

  Indeed, the current norm is to appoint individuals who have previous experience as federal judges. Although a majority of the Justices through the Court’s history had no prior judicial experience, eight of the nine current members have previously served as judges on a federal court of appeals. Prior to Justice Kagan’s recent appointment, I was the last Justice not to come from a federal court of appeals, although Justice Souter served only briefly on the First Circuit before his elevation to the Supreme Court. I had served as a state court judge in Arizona prior to my appointment; Justice Kagan had served most recently as dean of Harvard Law School and U.S. Solicitor General before becoming Associate Justice of the Supreme Court.

  New Justices come and go, but the judicial appointment process has become a fixture of our nation’s governance. Whether on the outside or the inside, it is always fascinating to see how the selection of the nine members of the Court contributes to and shapes the development of the law.

  A HOUSE IS NOT A HOME

  The Journey to One First Street

  ON FRIDAY, SEPTEMBER 25, 1981, THE DAY OF MY INVESTITURE as a Supreme Court Justice, I walked out of the Court and descended the wide marble steps with Chief Justice Warren Burger for the first time. Those grandly proportioned bronze doors and marble stairway are the iconic images of the Supreme Court. They have graced many a postcard and book cover. Yet many people do not realize that it took 145 years for the Supreme Court to get there. During those years the Court was a virtual nomad, having several different homes before finally ending up at One First Street, in our nation’s capital.

  In fact, the first sessions of the Supreme Court were not in Washington, D.C., at all. They were in New York. The Merchants Exchange Building, in what is now the financial district of New York City, was the site of the very first courtroom of the Supreme Court. After John Jay took the oath as the first Chief Justice on October 19, 1789, he called the Court to assemble in the Exchange Building on February 1, 1790. The Exchange, located at the intersection of Broad and Water streets, was a brick building owned by the city of New York.1 The space upstairs was occupied by tenants who maintained a “coffee-room,” sold imported goods, and conducted exhibitions and meetings.2

  The Old Royal Exchange Building, circa late 1700s. (Photograph Credit 3.1)

  The Court’s early sessions in the Exchange were brief and uneventful. The Justices did not have any cases on their docket. Indeed, not a single case was filed in the year 1790, though the number climbed to a remarkable two in 1791 and five in 1792.3 Instead, the sessions were devoted to selecting officers of the Court, settling on the official seals of the Court and the Courts of Appeals, passing rules, and admitting members to the bar.4 Justice Rutledge did not even attend the first few sessions.5

  The lack of a significant workload was probably for the best. It must have been hard to get much accomplished while the Court had no permanent home. No one had thought to build the Supreme Court a permanent physical structure, most likely because no one knew for sure at the time what would become of this institution.

  * * *

  THINGS STARTED LOOKING UP when in that year, 1792, Congress passed the Residence Act, which identified a district on the Potomac River “not exceeding ten miles square” as the permanent seat of the federal government starting in 1800, and designated Philadelphia as the interim capital.6 When Philadelphia became the seat of government from December 1790, the Court moved there, too.

  The Court’s second home became Independence Hall in Philadelphia, then known as the State House. Independence Hall, located on Chestnut Street between Fifth and Sixth Streets, was where the Declaration of Independence and the United States Constitution were debated and adopted. For the February 1791 Term, the Court met for only two days. A group of Philadelphia lawyers escorted Chief Justice Jay and Justices William Cushing, James Wilson, and James Iredell to the State House to take their seats on the bench in a room on the first floor.7

  The accommodations were an improvement, but far from ideal. The courtroom was just a forty-foot square featuring three large windows, and it was unheated.8 The Justices also had some “roommates”—they shared space with the state supreme court and the federal circuit court. To say that quarters were tight is an understatement. The Pennsylvania House of Representatives met right across the hallway. The United States Congress convened a mere hundred feet away. President Washington, meanwhile, lived one block away, a short distance off Sixth Street.9

  The former Supreme Court Room in Independence Hall. (Photograph Credit 3.2)

  The Pennsylvania State House (Independence Hall), circa 1898. (Photograph Credit 3.3)

  In August 1791, the Court moved to a space on the first floor of the newly constructed City Hall, at the northeast corner of the State House Square. Although the Justices met for just three days that August, they ended up staying at City Hall for nine years.10 The Court again shared the room, this time with the mayor’s court. When the work of the two courts overlapped, it was reportedly the Supreme Court that had to find an alternative venue!

  * * *

  THE COURT ONCE AGAIN found itself homeless when the capital finally moved to Washington, D.C., in 1800. Congress lent the Supreme Court space in the new Capitol Building, as part of what was expected to be a temporary arrangement. The Justices initially convened in a committee room in the Capitol. After the British set fire to the Capitol in the War of 1812, the Court relocated briefly to a private home.

  The Court later returned to the Capitol Building and, from 1819 until 1860, settled in what is now known as the Old Supreme Court Chamber. From that chamber, the Justices issued
such landmark decisions as Gibbons v. Ogden, which held that the Commerce Clause of the Constitution confers on Congress a broad power to regulate interstate commerce, and the infamous Dred Scott v. Sandford, which ruled that slaves were not citizens and not protected by the Constitution.

  In 1860, the Court moved upstairs into a chamber that had been vacated by the Senate. Designed by architect Benjamin Latrobe, the semicircular, two-story chamber featured an umbrella vault ceiling. This was the Court’s home until 1935. The Justices, however, were still dependent on the Senate for library and office space and many of them continued to maintain offices at home, where their clerks and secretaries worked.11

  The Old Supreme Court Chamber in the U. S. Capitol. (Photograph Credit 3.4)

  IT WAS CHIEF JUSTICE William Howard Taft who, in 1925, formed the vision for the current Supreme Court Building. Taft wished for an edifice that would serve as a testament to the judiciary’s dignity and independence as a separate and coequal branch. With his executive experience as President and his connections, he succeeded in lobbying Congress to pass an act in 1928 providing for a Supreme Court Building Commission, and in getting himself appointed to chair it. Taft commissioned his friend, renowned architect Cass Gilbert, for the job. Gilbert had attained prominence earlier in his career with the design of Minnesota’s state capitol in 1898, called “the most influential model of neo-classicism among capitols built after the Civil War.”12 The Supreme Court Building was Gilbert’s last great commission. On the day he got the job, Gilbert wrote in his journal: “Thus opens a new chapter in my career and at 70 years of age I am now to undertake to carry through the most important and notable work of my life.”

  Gilbert’s task was certainly not an easy one. There was some debate over where the Court should be located. President Herbert Hoover wished to have the building overlooking the Potomac River. Others suggested the current site of the Jefferson Memorial. But Chief Justice Taft persuaded Gilbert that a location closer to the main government offices would be most convenient. The Court was to be wedged on an irregular plot of land adjacent to both the Capitol and the Library of Congress. Lore has it that Gilbert asked where he would find the grassy hill on which he was to build the structure, only to be instructed to fit the structure in across the street.13

  The architectural dominance of the Capitol and Library of Congress posed a design conundrum. Gilbert was particularly concerned that the dome on the Library of Congress would interfere with the line of sight from the Court building. On one occasion, Gilbert reportedly suggested to Chief Justice Taft that the dome of the Library of Congress be removed!14

  To assert the Court’s presence, meanwhile, Gilbert designed an impressive, grand entrance. Thus Gilbert conceived of a plaza leading to forty-four marble steps and a main entrance framed by a double row of sixteen white marble, Corinthian columns.15 Above the 1,300-pound bronze doors is the inscription EQUAL JUSTICE UNDER LAW. The steps and inscription are intended to inspire visitors and Justices alike. On his nomination to the Supreme Court in 2005, Chief Justice John G. Roberts Jr. confessed, “I always got a lump in my throat whenever I walked up those marble steps to argue a case before the court, and I don’t think it was just from the nerves.”16

  Gilbert chose American materials for the construction but made an exception for the courtroom. Yet even the imported materials were finished in the United States. Vermont white marble formed the building’s exterior; Georgian and Alabaman marble were used in the main hall and courtyards. The wood in the offices was American quartered white oak. For the main chamber, meanwhile, Gilbert opted for veined Spanish ivory marble for the walls and a yellow and ivory marble for the columns.17 The new courtroom had 60 percent more floor area and 10 percent more seating than the Court’s chamber at the Capitol.18 It was flanked by twenty-four Ionic columns. At Chief Justice Taft’s insistence, Gilbert provided space for the press in front of the bench.19

  Sadly, Chief Justice Taft did not live to see work begin in 1931 on the building. He died in March 1930, five weeks after his retirement. At a ceremony in 1932, however, Taft’s successor as Chief Justice, Charles Evan Hughes, helped President Hoover lay the building’s cornerstone.20 Hughes deemed the new structure a testament to “permanence, not the permanence of stone and steel” but “to an imperishable ideal of liberty under law.”21 The construction costs totaled approximately $9 million.22

  The Court’s permanent home opened in the midst of the Great Depression in 1935. It garnered a mixed critical reception. Gilbert had conceived of his design as a “reaction against the silly modernist movement.”23 But Gilbert’s fellow architects deemed the building lacking in imagination, even if stylistically correct. Justice Louis Brandeis was said to have “detested the building” for its monumental pretensions. 24 One of Brandeis’s law clerks reported that the Justice “hated everything ‘Roman’ about Washington.”25

  The Court formally opened the October Term of 1935 in its new home. According to newspaper articles on October 7, 1935, Chief Justice Hughes uttered the first words in the courtroom: “Are there any admissions?”

  Fifty years later, I sat in that very courtroom as an Associate Justice of the Supreme Court. We commemorated the anniversary of the building’s opening. With Chief Justice Burger presiding, we held a special session in which former Solicitor General Erwin Griswold, Attorney General Edwin Meese, and the president of the American Bar Association, William Falsgraf, offered reflections on the Court’s journey over the last half century.26

  IN MAY 2010, SECURITY concerns led the Court to close the iconic front entrance to the public. Members of the public now enter the building through a security checkpoint on the plaza level. My colleagues, Justice Stephen Breyer and Justice Ruth Bader Ginsburg, issued a dissenting statement from that decision. The main entrance and front steps, they wrote, are “not only a means to, but also a metaphor for, access to the court itself.”27 They expressed “hope that the public will one day in the future be able to enter the Court’s Great Hall after passing under the famous words, ‘Equal Justice Under Law.’ ” I often think back to my first day walking down those marble steps, which Gilbert imbued with such grace and dignity, and hope the same. But whether seen up close or from afar, the structure of the Supreme Court at One First Street stands as a remarkable symbol of the institution’s endurance and journey from humble beginnings.

  General view of the west façade of the Supreme Court Building. (Photograph Credit 3.5)

  HUMBLE BEGINNINGS

  The First Decade of the United States Supreme Court

  ANYONE WHO SEES THE SUPREME COURT TODAY IN ALL ITS grandeur would be amazed to know its humble beginnings. The early years of the Court were a tumultuous struggle. It had no home, little money, and virtually no cases; it is a wonder it survived at all! Those humble beginnings, and how they were overcome, have helped shape our democracy.

  Article III of the Constitution established the Supreme Court, vesting the “judicial Power of the United States” in “one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”1 Congress had to flesh out the rest from these few words.

  The Judiciary Act of 1789 set the number of Justices at six.2 President Washington nominated John Jay of New York to be the Chief Justice3 and selected five Associate Justices: John Rutledge of South Carolina,4 James Wilson of Pennsylvania, William Cushing of Massachusetts,5 Robert H. Harrison of Maryland,6 and John Blair of Virginia.7 The six nominees were approved by the Senate just two days later.8 So far, so good. The initially smooth progress, however, proved short-lived. In a sign of what was to come, Justice Harrison resigned for health reasons before the first session even took place!9 Justice Iredell filled the vacancy left by Justice Harrison.10

  The Court was up and running, but it had very little to do. Congress provided that the Court would sit in session twice each year, with one session “commencing the first Monday of February, and the other the first Monday of August.”11 The first fo
ur Terms, from February 1790 to August 1791, were uneventful. No cases were argued during those Terms and the Justices merely convened for a few days to swear in clerks and lawyers. Justice Rutledge did not even attend for the first few Terms; although he arrived in New York in August 1790 intending to attend the Court meeting, he was incapacitated by gout.12

  The Court had no stable membership. Chief Justice John Jay resigned in 1795, after just six years of serving as the first Chief. Jay had two reasons for stepping down. First, he had had enough of “circuit-riding,” the early practice by which Supreme Court Justices were required by law to travel thousands of miles to serve on lower courts across the country. Second, Jay had learned, upon returning from his extended diplomatic trip to England, that his friends had nominated him to the governorship of New York and obtained his election.13

  After Jay resigned, President Washington then nominated Rutledge again to replace him.14 John Rutledge had been one of President Washington’s original six Justices, but frustrated by circuit-riding, the lack of activity on the Supreme Court, and being passed over for Chief Justice in favor of Jay, Rutledge had left the court in 1791 to become Chief Justice of the South Carolina Court of Common Pleas.15

  Rutledge’s second confirmation as Chief Justice did not go well. Rutledge was outspoken, perhaps too much so. In July 1795, probably before he received word of his appointment as Chief Justice, he attended a meeting in Charleston and joined other South Carolinians in attacking the Jay Treaty with Great Britain, which ensured, among other things, the withdrawal of the British Army from areas in the Northwest. He believed it was too generous to the British, and he delivered a vehement speech in opposition, reportedly stating that he “had rather the President should die than sign that puerile instrument” and that he “preferred war” to the treaty’s adoption.16 This caused treaty supporters to rally against his nomination.17 President Washington kept his word, however, and instructed the secretary of state to issue the commission. But this was a recess appointment; the Senate still had to approve Rutledge when it convened again in December. In December 1795, after much heated political debate and the spreading of rumors that Rutledge was insane, the Senate defeated Rutledge’s nomination by a vote of 14 to 10.18 This marked the first time that the Senate rejected a President’s recess appointment.