Out of Order

by Sandra Day O'Connor

  Some years later, Justice Thomas, who also took to the basketball court on occasion, broke a leg. He walked around in a cast. When Justice Kennedy asked Justice White, “Byron, did you do that to him?” Justice White disclaimed responsibility: “If it had been me, both his legs would have been in a cast.”

  Justices at President Bill Clinton’s second inauguration, in 1997. (Photograph Credit 9.2)

  A sense of humor is a valuable commodity in any occupation, and it certainly is appreciated in the hallowed halls of the Supreme Court of the United States.

  LARGER-THAN-LIFE JUSTICES

  IF YOU VISIT THE GROUND FLOOR OF THE SUPREME COURT BUILDING, you will find the halls adorned with a bit of art—mostly portraits of departed associate justices. Many of the portraits you will find there are unfamiliar—all of them men, who have served the country on the Court, usually with honor, but whom history has all but forgotten. Others, however, are unforgettable. In this chapter are written “portraits” of four Justices who were larger-than-life: Justices Stephen Field, Oliver Wendell Holmes Jr., James McReynolds, and William O. Douglas.

  These are not necessarily the greatest jurists the Court has known, though Holmes certainly falls in that category. Instead, they are men whose personalities were so big that they have made their mark on history by sheer force of character. And the character of at least one of them may seem more shadow than light. But whatever judgment history has passed on them, it is worth knowing about each of these men.

  They came from the Northeast, the South, and the far West, and their tenures on the Court spanned the century from the Civil War to the Vietnam War. Each was shaped by, and shaped, his times and circumstances. And each reveals that the judge is more than his jurisprudence. Underneath their robes, so to speak, the Justices of the Supreme Court are real, often quite unique, people. With all the current focus on judges’ so-called ideologies, it is worth remembering that a judge’s personal history and character also matter—for they can do a great deal to enrich or impoverish our courts.

  Formal half-length portrait photograph of Justice Stephen J. Field in his robes, circa 1890. (Photograph Credit 10.1)

  JUSTICE STEPHEN J. FIELD was a genuine pioneer. His rise to the Supreme Court began with the gold rush of 1849. That year, at the age of thirty-three, Field left his legal practice in New York City to make his fortune in California. Within a year of his arrival in the Golden State, Field had helped to establish the frontier town of Marysville, near the gold fields in the foothills of the Sierra Nevada. He was soon elected justice of the peace, and it was during his brief tenure in that office that he got his first taste of judging.

  One account tells how Field presided over a trial involving a dispute about rights to a mining claim. For lack of a courtroom, the trial was held in a local saloon and gambling house. After the jury ruled for the plaintiff, the lawyer for the defendants denounced the jury and said that he would “advise his Clients to resist that verdict at the point of the knife and the knife to the hilt.” The jury foreman drew a pistol, but Field intervened. Field reportedly took a bowie knife from his pocket and placed it between his teeth, then drew a pistol and placed it within six inches of the offending lawyer’s head. “Eat those words, damn you, or I’ll send you to hell,” Fields said, and the offending counsel gulped and said, “I eat.” With that, court was adjourned.1 The tale may be tall, but the portrait of frontier justice rings true.

  Field was soon elected to a term in the California Assembly, but the state legislature wasn’t much more civilized than Field’s bar-side courtroom. Field later recounted that more than two-thirds of the thirty-six assemblymen never appeared unarmed, and that it was not unheard-of for a legislator to brandish a pistol to emphasize a point in debate. In 1857, Field was elected to the three-member California Supreme Court, where he served for six years. But even here, violence was never distant. David S. Terry, one of Field’s fellow justices and a lifelong nemesis, was forced to step down after shooting a leading political adversary to death in a duel.

  In 1863, Congress expanded the number of Justices on the U.S. Supreme Court to ten. President Lincoln nominated Field to the tenth seat, informally designated for a representative of the western states. In 1869 Congress returned the Court to its present size of nine. But Field remained on the Court and served for a remarkable thirty-four years, stepping down at last in 1897.

  Field’s jurisprudence marked him as a friend of business, an opponent of expansive federal regulation, and a strong advocate of states’ rights. He pioneered the notion that the Due Process Clause of the Fourteenth Amendment provides a substantive restriction on government regulation of business, and that the Constitution protects liberty of contract and the right to pursue one’s trade. For instance, Field disagreed with the majority of the Court in a decision upholding the Illinois legislature’s right to fix maximum storage rates charged by grain elevators and public warehouses and to require licenses to operate such facilities. Writing in dissent, Field declared: “I deny the power of any legislature under our government to fix the price which anyone shall receive for his property of any kind.”2 “If the power can be exercised as to one article,” he warned, “it may as to all articles, and the prices of every thing, from a calico gown to a city mansion, may be subject to legislative direction.”3 Although he advocated these principles most often in dissent, ironically his views came to prevail almost immediately after his retirement. For the first four decades of the twentieth century, the theory of economic rights Field pioneered held sway in the nation’s high court, as the Court invalidated various federal and state laws that regulated business and labor.

  During his tenure on the Court, Field twice ran for President of the United States—in 1880 and 1884. In those days it was not unprecedented for a sitting Justice to run for political office, but it was still unusual. And there is little question that Field’s political aspirations influenced to a degree his performance on the bench. He actively used his pro–states’ rights opinions in civil rights cases, for example, to seek voter support in the South.

  Though Field found a place in the national political limelight, he never lost touch with his roots in California. During that era, Supreme Court Justices were still required to leave Washington, D.C., each year to ride circuit—that is, to sit with other judges on the lower federal courts in the region to which the Justice was assigned. Justice Field was assigned to the Ninth Circuit, which, as now, encompassed California and the rest of the far West. He logged thousands upon thousands of miles of travel each year to attend these duties. In 1889, a remarkable thing happened to Field while riding circuit.

  Four years earlier, Field had participated in a case in which Field’s old rival and former fellow California Supreme Court justice, David S. Terry, represented one of the parties. Field had sent Terry to jail for six months for contempt of court, and Terry publicly threatened retaliation. Four years later, while Field was riding circuit in California, Terry boarded the train on which Field was traveling. An altercation ensued, and Field’s bodyguard shot Terry dead. Both the bodyguard and Field were arrested, though they were ultimately released. Frontier justice, it seemed, had followed Stephen Field all the way to the Supreme Court of the United States.

  IN 1902, five years after Justice Field’s retirement, Oliver Wendell Holmes Jr. was appointed to the Supreme Court. Holmes was born the son of a prominent family in Cambridge, Massachusetts, far from the California gold fields. He grew up a “Boston Brahmin” who kept company with Ralph Waldo Emerson and other intellectual notables. Indeed, his father was himself a noted writer and physician. Holmes had his intellectual formation in the halls of Harvard and the Boston salons, and was one of the most erudite men ever to sit on the Supreme Court. But perhaps the most formative experience of Holmes’s early life was his service as an officer in the Union army during the Civil War. Holmes was seriously wounded four separate times during the course of the war, and scores of his close friends from Boston were killed. He
saw death on a gruesome scale and returned from the war with a deep sense of skepticism about human nature and the existence of firm truths. Yet he also retained an intense and virile passion for life.

  Much later in life Holmes gave a speech titled “The Soldier’s Faith,” which seemed to describe the war’s ambivalent imprint on him. He said: “I do not know what is true. I do not know the meaning of the universe. But in the midst of doubt, in the collapse of creeds, there is one thing I do not doubt, and that is that the faith is true … which leads a soldier to throw away his life in obedience to a blindly accepted duty, in a cause which he little understands, in a plan of campaign of which he has no notion, under tactics of which he does not see the use.”4 Those words endeared him to Theodore Roosevelt, who would one day appoint Holmes to the Supreme Court.

  After the war, Holmes attended Harvard Law School and practiced law in Boston. He brought his philosophical training to bear on the law and soon made his mark as a legal scholar by publishing a treatise called The Common Law. The common law is law developed by judges through court decisions, as opposed to law set forth by legislative statutes. Holmes’s book aspired to unify the different branches of the common law based on scientific principles. Though perhaps not wholly successful in that endeavor, Holmes helped pioneer an idea that was to revolutionize scholarly thinking about the law. He said, in essence, that law was not found, but rather made. Law, in other words, is what judges and courts do in exercising their power, and it is thus a product of historical, social, and political context. And since law is made, not found, Holmes urged conscious reform of the law to put it on a rational and scientific footing.

  Holmes was nominated to the Supreme Judicial Court of Massachusetts in 1882, where he served—first as Associate Justice and then as Chief Justice—for twenty years. He relished the work, which brought together the real-life grit of family law, property disputes, and criminal prosecutions with the great theoretical questions posed by the law. In 1902, President Theodore Roosevelt nominated him for the Supreme Court, where he was to sit as an Associate Justice for the next twenty-nine years.

  Perhaps Holmes’s greatest contribution to the Court’s jurisprudence was his insistence on judicial deference to the political branches in matters of economic regulation. Like those of Justice Fields before him, Holmes’s most famous opinions were written in dissent—though, ironically, Holmes fought against precisely the ideas that Justice Field had advocated. In its infamous 1905 decision in Lochner v. New York, the Supreme Court struck down a New York law that limited bakery workers’ hours to sixty per week, or ten hours per day. Echoing former Justice Field, the Court held this was an unconstitutional interference in the bakeries’ liberty to contract with their workers. Holmes issued a vigorous dissent, arguing that the Constitution did not enact any particular economic theory and that it was not the Court’s role to impose its policy preferences on the elected branches of government.

  This position, reiterated in several of Holmes’s other dissents, is sometimes taken as a mark of Holmes’s support for economic and social regulation. But in fact, Holmes was a realist who believed that the struggle between capital and labor must be resolved politically or by interaction between the two. He was an elitist and no great friend of labor, but he did not think the courts should tip the scales one way or the other. And Holmes’s belief in judicial restraint found expression in cases with notoriously nonprogressive results as well. In Giles v. Harris, Holmes wrote that the Court would not strike down state election laws that disfranchised African Americans because, in the end, it lacked any power to restrict state action in this sphere. And Holmes famously upheld the states’ constitutional authority to compel the sterilization of mentally retarded persons, stating bluntly that “[t]hree generations of imbeciles are enough.”5

  Associate Justice Oliver Wendell Holmes Jr., circa 1902. (Photograph Credit 10.2)

  Holmes was one of the fastest and most eloquent writers in the history of the Supreme Court. For cases that were assigned Saturday, he had the opinion written by Monday or Tuesday and circulated by Wednesday. He prized brevity, which he thought conveyed ideas more powerfully: “The little snakes are the poisonous ones,” he once wrote to a friend.6 It has often been said that Holmes’s opinions are easy to read and difficult to understand. Though his reasoning was sometimes cryptic, Holmes’s brilliant prose made his opinions immortal.

  In upholding restrictions on speech discouraging workers from registering for the draft during World War I, Holmes wrote that “the character of every act depends upon the circumstances in which it is done.… The most stringent protection of free speech would not protect a man in falsely shouting fire in a crowded theater and causing a panic.”7 Yet two years later, Holmes offered up one of the most compelling defenses of free speech ever penned:

  [W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes can safely be carried out. That, at any rate, is the theory of our Constitution.8

  Holmes wanted to be, and ultimately was recognized as, the greatest legal thinker of his era. He had a remarkable personal intensity and a contagious passion for life, which did not wane with advancing years. The famous journalist Walter Lippmann described him as “a sage with the bearing of a cavalier; his presence is an incitement to high risks.… He wears wisdom like a gorgeous plume, and likes to tickle the sanctities between the ribs.”9 And author Henry James, a longtime friend, wrote of the sixty-two-year-old Holmes, “I have never seen anyone so unmodified through the years, who had equally lived.… Wendell has moved and moved like a full glass carried without spilling a drop.”10

  At eighty, Holmes wrote of his future, “ ‘Does the road lead uphill all the way? Yes—to the very end.’ And one must still take one’s chances.”11 He persevered on the Court until 1932, when he retired at the age of ninety. He died two years later. Like Justice Field before him, many of the positions he advocated in dissent came to prevail shortly after his death. His call for judicial deference to economic regulation ultimately carried the day, after the Court changed course in 1937 in the face of President Franklin Roosevelt’s court-packing plan. He is universally considered one of the greatest Justices of all time.

  JUSTICE JAMES MCREYNOLDS, by contrast, is commonly regarded as one of the worst justices ever to sit on the Supreme Court. While McReynolds is famous for his virulent opposition to the New Deal, his abysmal reputation stems mostly from his astonishingly mean and bigoted character.

  Born in 1862 in Kentucky and educated at Vanderbilt and the University of Virginia, McReynolds was a Southern gentleman of the old school. He was reared on his parents’ fundamentalist values and was rigid in his social and political views. “You can’t paint a white rose red,” he said of himself.12 He had a strong sense of personal honor and moral righteousness, and he appeared to consider those who disagreed with him to be either stupid or evil. That view of the world led to much conflict in McReynolds’s years as a Justice. As a friend of Justice McReynolds once said, “Men like … McReynolds are both stimulating and difficult: stimulating because we all need to be reminded of the importance of moral standards; and difficult because at any moment they may convert an argument into a fight.”13

  McReynolds practiced law in Nashville, Tennessee, for twenty years before going to Washington, D.C., in 1903 to become an assistant attorney general in the administration of President Theodore Roosevelt. McReynolds achieved great success in Theodore Roosevelt administration’s “trust-busting” campaign, and by the time he left government for private practice in 1912, he was widely—though inaccurately—considered a “liberal” and a “radical.” His reputation as a vigorous government antitrust lawyer gained him the attention
of Woodrow Wilson, and he was appointed Wilson’s Attorney General in 1913. But McReynolds’s acerbic character quickly made enemies in Congress and the administration. Wilson nominated McReynolds to the Supreme Court the following year, which some said was merely a ploy to get him out of the cabinet.

  Although Justice McReynolds sat on the Court for twenty-six years, his character made him ill-suited to the job. He had difficulty submitting to debate among equals and to the necessary restrictions on his freedom to advocate his views publicly. Referred to as “the rudest man in Washington,” he was abrasive both on and off the Court. He wrote comments such as “This makes me sick” on his colleagues’ circulating opinions—hardly a recipe for collegiality. He was a self-professed anti-Semite and behaved badly toward Justices Brandeis and Cardozo, who were Jewish. For instance, he once ostentatiously read a newspaper during Cardozo’s swearing-in ceremony. McReynolds was a lifetime bachelor who was apparently quite gallant in courting the ladies in Washington society. Though he put women on a social pedestal, he thought the notion of their participation in politics ridiculous. McReynolds was an unabashed racist and treated his black employees with a condescending paternalism. He infamously used his black valet, Harry Parker, as a human bird dog, requiring him to wade through icy water to fetch the ducks McReynolds shot when hunting.