June 12, 2009
To hear both critics and defenders talk about the fitness of Judge Sonia Sotomayor for the Supreme Court, you’d think the most successful Supreme Court justices had been warm, collegial consensus-builders. But history tells a different story. Measured by their lasting impact on Constitution and country, many of the greatest justices have been irascible, socially distant, personally isolated, arrogant or even downright mean.
Stephen J. Field, appointed by Lincoln, once insulted a woman’s romantic past so outrageously from the bench that her husband later attacked him on a train — and was shot dead by Field’s bodyguard. Louis D. Brandeis was famously distant: one of his law clerks recounted working until the small hours of the morning on a challenging opinion; as he slid his draft under the justice’s door, silent fingers pulled it through, with no human acknowledgment of the joint effort.
Oliver Wendell Holmes Jr. could be charming when he wanted — he especially enjoyed conversation with beautiful, titled women — but he could be brutally dismissive as well. He notoriously approved of sterilizing a woman believed to have a low intelligence because, he said, “three generations of imbeciles are enough.”
Anyone’s list of today’s justices with a chance at greatness would include Antonin Scalia, yet this brilliant jurist once called Justice Sandra Day O’Connor’s view in an important abortion case “irrational” and “not to be taken seriously” — and that was just what he put in writing.
But four justices in particular, all nominees of President Franklin D. Roosevelt who sat together on the bench, formed the best example of how personal friction can fuel constitutional importance, and of how the roots of greatness may be found in difficult personalities.
The epitome of a great justice with a rough character was William O. Douglas, the liberal who found the right to privacy in the “penumbras” and “emanations” of the Bill of Rights, and thus paved the way for landmark decisions on abortion and gay rights. Douglas was an egotist who barely spoke to his colleagues, loved to vote alone, and once said that his law clerks were “the lowest form of human life.” His personal life was a mess: his divorce in 1953 was the first ever for a sitting justice; he soon followed it up with the second and then the third (each of his four wives was younger and blonder than the previous one). It has never been said better of anyone that he loved humanity and hated people.
Yet Douglas’s extraordinary accomplishment in securing autonomy as a constitutional guarantee can be traced in no small part to his (perhaps somewhat unhinged) search for personal fulfillment. And his early advocacy of environmentalism had much to do with his fondness for spending his time out of doors — alone.
Serving alongside Douglas was another great liberal, Hugo Black, who began his political career by joining the Ku Klux Klan and relying in part on its extensive organization to get himself elected a senator from Alabama. Black then concealed his membership while in Washington, never mentioning it even to Roosevelt. As a sitting senator he was confirmed to the court in less than a week, so by the time the story of his Klan membership became public, he was already in (black) robes.
Soon after, the Klan connection was reported and, pressed by public outrage, Black went on national radio and explained with repulsive precision that “some of my best and most intimate friends are Catholics and Jews,” while among his friends were “many members of the colored race.” When some press outlets — including this newspaper — continued to mention his past, Black’s strong sense of Southern honor was offended, and he bore a grudge for decades.
In the long run, though, it was precisely Black’s desire to absolve himself of the taint of racism that helped him to become a staunch advocate of civil rights. Going back to the original meaning of the 14th Amendment’s equal protection clause, he insisted that separate could never be equal. As the most stalwart supporter of this position on the court, he pushed hard for desegregation by judicial fiat — even though he knew the South would fight the decision tooth and nail.
Douglas and Black’s particular nemesis was Felix Frankfurter, the liberal law professor turned conservative justice who also had plenty of trouble getting along with his colleagues. Frankfurter thought Douglas was deciding cases to help his vice presidential aspirations, which were live both in 1944 and 1948; he privately called Douglas “the most cynical, shamelessly amoral character I’ve ever known.” Douglas, meanwhile, thought Frankfurter was an unbearable pedant. Instead of speaking to the other justices in their conference, Frankfurter lectured them. Douglas, with characteristic wit, said that Frankfurter’s harangues lasted exactly 50 minutes — the length of a class at Harvard Law School.
The other justices indeed often found Frankfurter overbearing and backbiting. He repeatedly referred to his scholarly accomplishments and to as-yet-unwritten books that he claimed, rather doubtfully, to have in his head. Frankfurter’s greatness, though, grew from his same self-aggrandizing and professorial character. Having developed the theory of judicial restraint while at Harvard, he refused to deviate from it even though his fellow liberals became a majority and began infusing a new spirit of activism in the law. Frankfurter found himself almost glorying in the fact that he had alienated his former allies, and found himself often in dissent, like his two great heroes, Holmes and Brandeis.
Frankfurter’s main ally, loosely aligned with him against Black and Douglas, was Robert Jackson, the founder of the “pragmatic” school of constitutional jurisprudence. Plagued by ambition, Jackson took a year off from the court after World War II to serve as the chief American prosecutor at the Nuremberg trials, where he had a lasting impact on the development of international humanitarian law. Yet after he lost his chance to be chief justice — Black communicated to President Harry Truman that he and Douglas would resign if Jackson got the job, and Truman named Fred Vinson instead — Jackson went over the edge. He wrote an open letter, reprinted widely in the press, revealing secret details of the justices’ conferences and accusing Black of maneuvering to help a former law partner in a case that had come before the court.
While the sometimes vicious personal differences among Roosevelt’s appointees may have been unseemly, there is no doubt that personality honed each man’s constitutional worldview, which in combination influenced the nation for good. And ultimately the four were able to come together in Brown v. Board of Education, putting aside deep disagreement when all understood that unity was paramount to achieve desegregation.
But the lesson of their careers — one we should remember before pontificating about what personality Judge Sotomayor “ought” to have — is that great justices need independence and a fierce commitment to constitutional principle. These characteristics can coexist happily with a wide range of personalities, not all of them clubbable. In the end, to be a great justice you don’t need a judicial temperament.
Noah Feldman, a professor at Harvard Law School, is writing a book on the Supreme Court appointees of Franklin D. Roosevelt.