Out of Order

by Sandra Day O'Connor

  Other Justices have resigned to serve the U.S. government. In 1877, Justice David Davis resigned to become a U.S. senator.31 Justice Charles Evans Hughes resigned in 1916 to run for president on the Republican ticket; he lost the election, but was later reappointed and confirmed to the Court as Chief Justice in 1930.32

  Other Justices took on executive branch roles. Justice James F. Byrnes resigned in 1942 to become the director of the Office of Economic Stabilization.33 He became secretary of state under President Truman and was later governor of South Carolina.34 Justice Arthur Goldberg resigned in 1965 to become the U.S. ambassador to the United Nations.35

  Other Justices have resigned for personal reasons. For example, Justice Noah Swayne resigned in 1881 after extracting a promise from President Rutherford B. Hayes that he would appoint his friend Stanley Matthews to the Supreme Court seat Swayne was vacating. President Hayes followed through, as promised.36 Justice Tom C. Clark retired in 1967 to avoid possible conflicts of interest that might arise after his son, Ramsey Clark, was appointed U.S. Attorney General.37 I retired in 2006 in part to spend more time with my husband, John, who was in poor health.

  Not all of the personal reasons have been positive, however. As mentioned earlier, Justice Abe Fortas resigned in 1969 due to an ethics scandal.38 Life magazine published an article detailing financial ties between Justice Fortas and a financier who was indicted for fraud.39 Prior to the indictment but while a member of the Court, Justice Fortas agreed to serve as a consultant for a foundation started by the financier, and he received money in compensation.40 After the indictment, Justice Fortas returned the money, but a later Justice Department investigation revealed that the financier had agreed to pay Justice Fortas twenty thousand dollars per year for life and then the same amount annually to Justice Fortas’s wife.41 The results of the investigation were shared with the members of the Court, and Justice Fortas resigned on May 14, 1969.42

  MANY JUSTICES HAVE UNDERTAKEN significant nonjudicial and judicial activities after their retirement from the Court.

  On the nonjudicial side, some Justices have taken full-time jobs, and others have devoted themselves to particular causes. For example, Justice John H. Clarke resigned in 1922 to campaign “for U.S. participation in the League of Nations and other peace efforts.”43 Justice Owen Roberts resigned in 1945 and became the dean of the University of Pennsylvania Law School.44

  More recently, I have taken up the cause of promoting civics education in our nation’s schools. I have focused particularly on creating and promoting a website—www.icivics.org—that provides games and teaching plans for use in educating middle school students about the three branches of government. Justice Stevens has also been active since his retirement in June 2010. He has given a number of speeches and published a book in 2011, Five Chiefs, about his experiences serving alongside five Chief Justices of the Court.

  Other Justices, myself included, have undertaken other types of periodic government service, including, for example, speaking to foreign judges who visit the United States or traveling abroad to meet with lawyers and judges as the request of the U.S. Department of State.

  A number of Justices have undertaken additional judicial service by sitting on the U.S. Courts of Appeals and even presiding over trials in federal district court. Since the advent of the senior status provision in 1937, eleven retired Justices have sat by designation.45 Justices Willis Van Devanter—the first Justice to take senior status after the enactment of the 1937 act—and Justice Tom Clark both presided over trials in federal district court.46 Justice Clark presided over the trial of one case that went to the Supreme Court. The case, GTE Sylvania, Inc. v. Continental T.V., Inc.,47 involved antitrust law. The Supreme Court had considered and decided a legal question similar to that raised by the GTE Sylvania case in an earlier decision—one from which Justice Clark dissented.48 When he instructed the jury in the GTE Sylvania case, however, Justice Clark explained the law in a manner consistent with his prior dissenting views.49 The Ninth Circuit, sitting en banc—that is, the entire bench of judges, not just a three-judge panel—reversed him on appeal. Nevertheless, Justice Clark won out in the end when the Supreme Court granted certiorari on the case, overruled an earlier precedent, and ultimately vindicated Justice Clark’s view of the law.50

  Sitting on the lower federal courts after retirement can be particularly interesting for Justices who were not federal judges prior to their service on the Supreme Court. For example, Justice Stanley Reed had been the Solicitor General prior to his appointment to the Supreme Court,51 but in retirement he sat regularly on the U.S. Court of Appeals for the District of Columbia Circuit, just down Capitol Hill from the Supreme Court.52 Similarly, Justice Harold H. Burton, who had been a senator prior to his appointment to the Court, sat on the D.C. Circuit from 1959 to 1962.53

  With my background in Arizona state government, I have found it particularly interesting to sit on the Courts of Appeals across the country. Participating in the operation of the various circuit courts has given me a better perspective on the work—and workload—of federal judges around the country. Each court has its own customs and ways of operating. And I have had the opportunity to meet so many interesting people from all walks of life along the way.

  Many of the Court’s more recently retired Justices have followed the practice of sitting by designation. Justice Potter Stewart, who was my predecessor on the Court, sat in several circuits after his retirement.54 Justice Lewis Powell, a native of Richmond, Virginia, routinely sat with the Fourth Circuit Court of Appeals, which hears cases there. Justice Byron White sat on a variety of circuit courts in the 1990s.55

  As of this writing, two of the three retired Justices currently sit on the circuit courts. Justice Souter sits often with the U.S. Court of Appeals for the First Circuit, in Boston, close to his native New Hampshire. I try to participate in sittings around three times a year. Thus far, I have sat on eleven of the thirteen Courts of Appeals around the country, with the only exceptions being the D.C. Circuit and the Federal Circuit, both of which are a bit more specialized than the numbered regional circuits.

  A JUSTICE’S DECISION TO leave the Court is often very difficult. The senior status provisions have made the decision somewhat easier by providing Justices with an obvious way to continue serving the courts and the government more broadly by sitting by designation. Justice Lewis Powell summed up the feeling of many retired Justices, including me, when he said, “[T]he longest day is the day I don’t have anything to do.”56 I have been blessed to stay busy with other important pursuits in the years since my retirement. And as I wrote to President George W. Bush in my letter relaying my decision to retire, I left the Court only with the utmost “respect for the integrity of the Court and its role under our Constitutional structure.”57

  SUPREME COURT “FIRSTS”

  ONE OF THE THINGS I AM ASKED ABOUT MOST FREQUENTLY when I give public lectures is how it was to be the First Woman on the Supreme Court—or the FWOTSC, as I like to call myself. Acronyms are very important in Washington, D.C. Everyone who is important has one. And I tell people that it was great to be the first to do something, but I didn’t want to be the last.

  I also believe that it is challenging to be a “first.” The first woman on the Court was carefully scrutinized by the press, the government, the lawyers, and the public. It is not always comfortable to be the object of so much attention. But the appointment of a woman to the Court opened countless doors to women all across the country. For that I am grateful. Nowadays, it is a thrill to look up at the bench during oral argument and see three women asking the inquisitive questions: Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan.

  Being so often referred to as a Supreme Court First naturally made me wonder about my predecessors. Although I was the first woman on the Supreme Court, there were many other firsts before me. So I decided to compile a list of important “Firsts” on the Supreme Court, and to try to learn a bit about what their experiences
could tell us about the institution and its evolution over the years.

  The four women Justices: Sandra Day O’Connor, Sonia Sotomayor, Ruth Bader Ginsburg, and Elena Kagan, circa 2010. (Photograph Credit 12.1)

  THE “FIRST” OF THE Firsts was, of course, John Jay, who was the first Chief Justice of the United States. Jay was born in New York in 1745 into a wealthy family.1 He attended King’s College (now Columbia University) at the tender age of fourteen,2 and decided to study law. He became a successful young lawyer, and later a prominent Whig leader. Jay also became an ardent advocate of American independence, and was at the center of the political action during the Revolutionary War. He was one of the youngest members of the First Continental Congress (at age twenty-eight), and held very important diplomatic positions during the war, including Minister to Spain.

  In 1784, Jay was named the first Secretary of Foreign Affairs, an office that later became Secretary of State. Although the Federalist Papers—a series of essays promoting the ratification of the Constitution—were published anonymously, it is known that Alexander Hamilton, James Madison, and John Jay were the authors. So valuable was Jay’s service to the new federal government that when George Washington was elected President, he reportedly told Jay he could have his pick of positions.3

  You know where this is leading, of course. Jay chose the position of Chief Justice of the United States, and the Senate confirmed him on September 24, 1789.4 Scholars say that he chose the position because the Court was, at the time, a political experiment. And the Court was essential to the success of the new government, because it had an important role to play in making the system of federalism work.5 It was crucial that it be led by someone with stature, someone who could lend legitimacy and prestige to the institution. Jay did exactly that. And to this day he is remembered more for his judicial statesmanship than for his judicial opinions.

  There was not much business for the Court in the early years, and Jay was appointed by the President as a special envoy to Great Britain. He was sent to try to clear up lingering problems with the British that were threatening to erupt into another war.6 Americans wanted compensation for goods and slaves seized by the British during the Revolutionary War and were angered by the continued British occupation of American frontier posts. The British had also created havoc for American shipping interests, preventing them from trading with certain British territories and seizing more than 250 U.S. ships in the Caribbean.7

  In time, Jay successfully negotiated what came to be called the Jay Treaty. He then returned to the United States, where, as mentioned, he learned that in his absence his friends had nominated him for governor of New York. What’s more, he was elected8—without any campaigning or fund-raising on his part.

  As a result, in 1795, Jay became the first Chief Justice to resign. He thought the Supreme Court would never amount to much. When he stepped down, President Washington nominated John Rutledge of South Carolina to the position—setting in motion the first confirmation battle over a Supreme Court Justice.9 The trouble began four days after Rutledge was nominated, when Rutledge deeply angered the Federalists—who controlled the Senate—with public criticism of the Jay Treaty. The treaty was quite unpopular at the time, because Jay had secured very little of what most Americans wanted and had given up a great deal, including commercial access to the British West Indies. In truth, most historians think that this was the best that the United States could do at the time, because the country had little bargaining power. The Senate thought the same thing and ratified the treaty despite popular uproar against it.

  Rutledge called the treaty a “prostitution of the dearest rights of free men,”10 even saying that he would rather George Washington die than he sign the Jay Treaty.11 This was probably another first—the first time that a nominee to the Supreme Court publicly wished for the death of the man who nominated him! One expects that it was also a Supreme Court “last.” Rutledge was attacked viciously for his speech and accused of being mentally unsound. And although he had already become a Justice through a recess appointment, when the nomination was put to the Senate (as it had to be, once they were back in session), Rutledge was rejected by that body in a close vote.12

  This first nomination battle presented the first conflict over the meaning of that part of the appointments clause of the Constitution, which says that Presidents shall appoint federal judges and Justices of the Supreme Court “by and with the Advice and Consent of the Senate.” The important legal question, of course, is what exactly “advice and consent” means, and how much of an active role the Senate should play in reviewing the qualifications or politics of judicial nominees. The fight over Rutledge’s nomination is an important example in part because many senators at the time had been involved in the drafting of the Constitution.13

  After Rutledge’s statements on the Jay Treaty, he was attacked as incompetent and insane. But his speech was the only real evidence of insanity that anyone cited. Some sources suggest that Rutledge was quite depressed at the time because of the recent loss of his wife.14 But private letters and accounts of the Senate deliberations at the time make it clear that, at least as far as the senators were concerned, it was the Jay Treaty that was on their minds, even if Rutledge’s sanity was on their lips.15

  It is clear that these early senators understood the Senate’s advice and consent power to be very robust. They thought that it permitted them to reject a candidate not only because he was objectively unqualified, but also because they found his political views extreme.16 It seems that this view still prevails today.

  So whatever happened to poor Mr. Rutledge? Well, if he was not mentally unwell before the confirmation process, he apparently was afterward. Thirteen days after the Senate rejected his nomination, he tried to drown himself.17 He did not succeed, thanks to some passing Good Samaritans who rescued him. They got no thanks from Rutledge, who reportedly protested that “he had long been a Judge and knew no Law that forbid a man to take away his own life.”18

  A HUNDRED YEARS OR so later, there was another set of firsts in store for the Court. Each Justice hires four law clerks (although the Chief Justice is allowed to hire five). They are typically recent law graduates with distinguished academic records. They work for their Justice for one year, conducting research, writing memos, and sometimes assisting with the drafting of opinions.

  But Justices did not always have law clerks around to help out with their work. The position of the clerk was unknown to the American judiciary until it was introduced by Justice Horace Gray. Gray was something of a prodigy—he graduated from Harvard College at seventeen, and while at Harvard Law School he helped develop the case method for studying law.19 So it is perhaps no surprise that he was ahead of the curve in another respect, too. In 1882, he was the first Supreme Court Justice to hire a law clerk. Congress did not allocate any money for this position, so Justice Gray paid the clerk’s salary out of his own pocket. He had done the same thing when he was Chief Justice of the Supreme Judicial Court of Massachusetts.20

  A few years later, Congress began allocating money to pay the salary of one law clerk for each Justice.21 But it took several decades for the system as we know it today to take root. Before that, Justices typically hired local attorneys and kept them on as long as they could. It was not until 1974 that a Justice first hired four law clerks, which today is the norm. For a Washington bureaucracy, this is a remarkably slow growth!

  Although I was the first woman to sit on the Supreme Court, I like to remind myself that there were, in fact, women who blazed some of that trail before me. One was Lucile Lomen, who in 1944 became the first woman law clerk at the Supreme Court. She was a graduate of the University of Washington School of Law22 and was hired by Justice Douglas after he found himself unable to secure a qualified male clerk. World War II had depleted the ranks of law schools, and the professors who recommended clerks sent word to the Justice that they couldn’t find anyone they thought worthy of the position. Justice Douglas wrote back to one of
them and asked whether they also meant that they had no qualified women for the position. It turned out that they did, but apparently it had not occurred to them to recommend one.

  Douglas hired Lomen and later declared her to have “a fine mind and a firm foundation in the law.”23 Nonetheless, he did not hire another woman until nearly thirty years later, in 1972.24 In fact, none of the Justices hired another woman until 1966.25 The numbers have gone up slowly, but steadily, over the decades—from 0 percent in 1970, to 9 percent in 1980, to 24 percent in 1990, to 28 percent in 2000.26 In 2011, there were thirty-nine law clerks, and thirteen of them were women. That was about 33 percent women—still underrepresentation, because women now make up more than 50 percent of incoming law school classes, but far better than it used to be.

  In 1948, Justice Felix Frankfurter hired the first African American law clerk.27 The clerk was William T. Coleman Jr., who went on to a distinguished career at the NAACP and served in the cabinet of President Gerald Ford. Coleman had graduated magna cum laude from Harvard Law School, but no law firm in his hometown of Philadelphia would hire him. He eventually landed a job as a law clerk on the Third Circuit, and then worked for Frankfurter, but remarkably, after all of that, he still could not get a job at a firm in Philadelphia.28

  Justice Frankfurter was the first to break the color line for clerks, but ten years later, when Professor Albert Sacks of Harvard Law School urged him to hire Ruth Bader Ginsburg, he refused to break his tradition of hiring only male law clerks. This was despite the fact that Ruth had tied for first in her class at Columbia Law School. She later became the first tenured woman professor at her alma mater, and, of course, was the second woman appointed to the Supreme Court.