Judging What Justices Do Off the Bench

Russell R. Wheeler

Editor's Note: A similar version of this article appeared as a review essay in the Michigan Law Review, Vol. 81. pp. 931-945, 1983. The editors asked the author to revise the review for publication in this journal.

Throughout its history, members of the Supreme Court have engaged in various politically significant activities in addition to deciding cases and explaining those decisions. My goal in this brief article is to consider the arguments supporting and discouraging such extrajudicial behavior, with reference to specific instances of such behavior throughout the Court's history.

Briefly, what are the various kinds of extrajudicial activity of interest to us as students of the Supreme Court? First are duties that Justices perform ex officio--such as the Chief Justice's service, pursuant to statute, as a member of the Board of the Smithsonian Institution[1] or as the presiding officer of the Judicial Conference of the United States[2] or of the Board of the Federal Judicial Center.[3] Somewhat akin to these specific ex officio designations are statutory requirements that a commission include a certain number of federal judges, without specifically designating the judges; Congress has required that the United States Sentencing Commission include at least three federal judges,[4] a requirement that the Supreme Court has said is consistent with the Constitution.[5]

Second, Justices have accepted personal appointments to official government posts, usually temporary ones. Chief Justice Earl Warren, for example, accepted President Johnson's request that he chair the commission that investigated the assassination of President Kennedy.

Third, Justices have engaged in all kinds of informal political and governmental activity, such as providing advice to Presidents and members of Congress, to candidates for those offices, and, in general, participating in the political affairs of the day. Bruce Murphy's 1982 book documenting the off-the-bench and out-of-the-limelight lobbying by Justices Brandeis and Frankfurter[6]shocked casual observers by revealing more extensive activity than most people assumed is the case.

One might first ask why Justices should engage in extrajudicial activities. There are several conceivable benefits from various kinds of extrajudicial behavior, benefits that I summarize here and then discuss in more detail. First, the role of judges in political society may give them unique attributes to bring to other aspects of public policy. At a different level, they bring the special knowledge and perspective of those who have "been there" to debates over how our judicial institutions should be administered and who should be judges. In addition, judges have likely developed perspectives and some degree of political acumen before their appointments that could be put to extrajudicial service. And, by a similar token, an occasional extrajudicial role might maintain the breadth of a judge's perspectives and inform the judicial mind.

To many, these statements do nothing but illuminate the threats that extrajudicial activity poses to the judicial function. That activity may, by example, deprive judges of the time and energy they need to decide cases fairly and explain their decisions clearly. Extrajudicial contact with a matter may inhibit the impartial consideration of that matter in the context of litigation. Similarly, the desire to stay in the graces of a President who could bestow the favor of an extrajudicial activity might prevent their considering other matters impartially. Finally, regardless of whether an extrajudicial activity affects judicial behavior, it may create doubt--an ambiguity--in the minds of those who must have confidence that judges will be fair, those without whose confidence the judicial fiat stands in danger of disrespect.

Ajudication, especially constitutional ajudication, requires judges to participate in political society in a special way, applying fundamental norms to resolve controversial fact situations. This experience, building on judges' pre-judicial experiences, arguably creates a unique political perspective and even political skills that might well be of value to the resolution of matters outside case-or-controversy fora. This view was held much more widely in the founding period than it is now. Many then agreed with George Mason, who told the constitutional convention that the judges' "habit and practice of considering laws in their true principles, and in all their consequences," laid a strong case that "further use be made of the Judges, of giving aid in preventing every improper law."[7] In fact, John Jay's major contribution as Chief Justice was to show the dangers of too heavy a reliance on "further use" of judges as commission members and presidential advisers.[8]

Despite Jay's efforts, Presidents and Congress have continually called upon members of the Court for additional service, as when Justice Jackson took on the job of chief Am en-can prosecutor at the Nuremberg trials. One of Jackson's colleagues at Nuremberg justified Jackson's role in a blunt, if possibly self-serving, fashion: Fourth Circuit Court of Appeals Judge John Parker proclaimed that Jackson's mission was justified because there are occasionally calls "for a judge to do something for his country which no one but a judge can do so well."[9]

Obviously the degree to which judges can contribute extrajudicially as judges will vary with the task at hand and with the judge performing it. A desire to grace an important mission with an ornament of impartiality is not enough to justify involving judges in the task. For example, having Justices serve on the commission to resolve the disputed presidential election of 1876 appears, in retrospect, to have been a poor idea. Given the venality of the age, and the Court's still-incomplete recuperation from the Dred Scott wound, it was unlikely that the Justices' service could have helped resolve challenged election results at the end of the Reconstruction Era. The problem is captured in a Southern newspaper's editorial hope that "if Justice Bradley could withstand the party pressure that reached him [to sustain Reconstruction legislation on the Bench], there does not appear to be any reasonable grounds for supposing that he will succumb to such pressure" on the commission.[10] I have serious doubts, for a contemporary example, that the Supreme Court Justices should be directed to set congressional salaries, despite the assertions by two members of the Senate leadership in 1982 that a constitutional amendment to that end would be the "wisest and most apolitical delegation of such compensation setting authority...."[11]

Few, however, would contest the basic assumption behind Canon 4B of the American Bar Association's Code of Judicial Conduct. The canon permits judges to write and lecture on the administration of justice, to appear before or consult with governmental bodies or officials on matters concerning the administration of justice, and to serve as members or directors of judicial improvement organizations. In these matters, asserts the commentary, a judge "is in a unique position to contribute," and it encourages judges to do so as their time permits.[12] Procedural rule-making benefits from their involvement.[13] Their advice on jurisdictional matters, for which Alexander Bickel claimed they are "uniquely expert,"[14] is similarly beneficial. Even though judges are hardly infallible in shaping judicial administration policies, and although they certainly do not reflect all the perspectives that need to be brought to bear on the process, surely they should be heard.

Judges have also been active participants in the process of choosing other judges. Frankfurter, for example, developed a particular view of criteria that should--and that should not--govern judicial selection;[15] it would be surprising to find a judge who has not. Judges know, in a way that others cannot, what the judicial office entails, what qualities it needs most, and what kinds of individuals would be appropriate for it. "Merit selection commissions for state judicial nominations often include judges as members. In Missouri, where the system has been most rigorously probed, Watson and Downing report that of all the commissioners, "the judges...have evidenced the greatest variety of perspectives on judicial selection."[16] They bring the lawyer's knowledge to the task, but without attendant bar rivalries, and they surely have a special insight into what the job of judging entails. As with judicial administration innovations, sitting judges' perspectives on judicial selection are limited and hardly apolitical, and there are risks, described below, to their involvement. But there are benefits as well.

Judicial-related attributes aside, individuals who manage to get appointed to the bench, especially the highest bench in the land, presumably bring to their chambers more than legal experience and perspective. Almost by definition, they have been actively involved in the affairs of the day. Forbidding all extrajudicial service would, by definition, deprive the nation of benefits of those personal attributes.

Forbidding extrajudicial activity is, in a sense, at odds with the democratic notion that political society benefits from the participation of its members. Justice Douglas once expressed something of this view. In 1939, the Supreme Court decided O'Malley v. Woodrough,[17] upholding the constitutionality of legislation subjecting federal judges to the income tax.

"As I entered my vote in the docket book," Douglas claimed,

Douglas's assertion of cause and effect is somewhat disingenuous: even without O'Malley, one suspects, he would have decided to "register and vote;...fight to raise the level of the [Yakima] public schools [and] become immersed in conservation, opposing river pollution, advocating wildlife protection, and the like... [and] travel and speak out on foreign affairs."[19]

To say that we have no assurance that Justices' activities off the Bench will produce "contributions" is to miss the point entirely. We would not think of requiring such assurances before sanctioning the political activities of any non-judge.[20] Brandeis's role in turning the direction of the New Deal, or Frankfurter's in affecting American foreign policy,[21] would not have unanimously been labeled "contributions" at the time, nor would they today. The test of the propriety of their action is not the degree of approval on the merits, but the costs, if any, to the Court-- and to the system of justice generally--of Supreme Court Justices' acting extrajudicially.

Finally, it may be that extrajudicial activity can also work to the advantage of the judicial process itself. Justice Douglas offered a stronger reason for exercising his "first-class citizenship" than his status as a taxpayer, a reason captured in his rather cavalier assertion that a "man or woman who becomes a Justice should try to stay alive; a lifetime diet of the law alone turns most judges into dull, dry husks."[22]

Then-Associate Justice Rehnquist treated a tangential aspect of this question in explaining his refusal to disqualify himself from the Court's reconsideration of Laird v. Tatum[23] because of his involvement as an executive department official in matters before the Court. Apart from his specific involvement with the matter was the contention, as he summarized it, "that I should disqualify myself because I have previously expressed in public an understanding of the law on the question of the constitutionality of governmental surveillance." Rehnquist's response serves as a reminder that Justices of the Supreme Court are drawn from the legal political community in part because they are among its more prominent members. He noted numerous Justices who, before they went on the Bench, played roles in matters that presented themselves to the Court in the case-or-controversy context, and reasoned that it

The question remains whether certain kinds of extrajudicial activities might similarly enhance a Justice's work on the Court. Judging in a democracy is a vital process, and the nation has some interest in knowing that its judges are not permanently cut off from the juices that flow through society. Moreover, it may be that Justices see the opportunity for such involvement as an advantage. The reaction of one of Brandeis's law clerks, J. Willard Hurst, to Murphy's book on Brandeis and Frankfurter is instructive: "The Supreme Court deals with matters of important public policy," and thus, he said, "[y]ou want people sophisticated in the affairs of the country, not the naive or simpleminded...."[25] To seek extrajudicial outlets may be a natural inclination of the kind of people appointed to the Court. Brandeis and Frankfurter, one suspects, may have seriously reconsidered joining the Court if all extrajudicial involvement could, somehow, have been proscribed. They would have been different persons, at least, frustrated by the proscription. Would the nation have benefited from either of those possibilities?

In O’Malley, the case that Justice Douglas claimed liberated him from a life beyond the purple curtain, Justice Frankfurter wrote that judges' "particular function in government does not generate an immunity from sharing with their fellow citizens the material burden of the government whose Constitution and laws they are charged with administering."[26] Judges do have a "particular function in government," which takes precedence over any other function. The benefits that extrajudicial activities may bring to American political life must be weighed against the burdens those activities may impose on that particular function.

Weighing those burdens, to be sure, requires a profound judgment. It also requires, much more than commentators have been willing to acknowledge, answers to basically empirical questions, i.e., questions of fact that can, in principle at least, be proved wrong. We are short on facts and long on suspicions about the consequences of extrajudicial activities.

The facts needed to inform our judgment are of various types. Some can come only from the judges and those who work directly with them. For example, what is the impact of extrajudicial activity on judges' time demands and work habits? Although there have been some efforts to measure how judges spend their time, there has been no focus on extrajudicial activities' impact on their judicial work and such a focus would surely be seriously blurred.[27] Our sense of the costs that discrete extrajudicial activities may extract is likely to derive largely from specific examples. Chief Justice Warren, for instance, insisted that he would not give up his judicial duties during the investigation of the Kennedy assassination. After he left office, he told a television interviewer that he "would run back and forth between [the Court and the commission offices across the street]. I don't believe I left my work before midnight any night for ten months."[28] What the impact of the extra burden was on his Supreme Court activities one can only surmise.

Justice Frankfurter's extrajudicial work also had an impact on his Court work. During Frankfurter's pre-and early-World War II involvement in all manner of foreign policy matters, his rate of opinion production did not decline, evidently because he delegated a larger share of his judicial work to his law clerks during the period from 1941 to 1943 than he did before or after it. Save for those years, Frankfurter himself prepared the initial drafts for his judicial opinions. From 1941 to 1943, however, his law clerk did so in every case but one.[29] Although any difference in the final product has evidently eluded observers of the Court, the shift in work patterns was arguably an abdication of judicial responsibility to pursue extrajudicial goals. But what of the benefits--if that is what they were--that the arrangement allowed, especially since, if Murphy is to be believed, Frankfurter may have influenced some important events in ways in which others could not?

A judge's judicial administration work--in which the judicial perspective is essential but not sufficient--presents this matter of costs and benefits in sharper contrast. We accept as elementary the normative proposition that each judge should dispose of the cases before him or her as fairly, quickly, and economically as possible. Such case disposition may not be achievable simply if each judge tries hard to do so. The administrative and organizational arts --securing resources, devising procedures, promoting cooperation, and assessing what works--are necessary to the objective, surely, in any large court system, and judges must perform them. The administration of justice is a systemic need that may deserve a judge's time at the expense of prompt attention to an individual case or set of cases.

Perhaps the most frequently asserted cost of judges' extrajudicial activity is bias-- the inability to do justice because an extrajudicial contact creates a partiality to one side that affects the judge's decision. What of it when judges are asked to decide questions on the bench that bear a relatively distinct relationship to matters that they touched off the bench, perhaps in a lecture, perhaps in an informal consultation with a government official? The late Alexander Bickel took up an aspect of this question during Senate Judiciary Committee hearings in the wake of Justice Fortas's resignation:

Here we have some clear questions about how human beings behave. Was Bickel right, for example, in the basic message of his hyperbolic assertion that "[n]othing is more persuasive to ourselves than our own published prose"?[31]

Answers to that question have been consistently intuitive, perhaps reflecting larger policy objectives. English judges in the eighteenth century justified their practice of giving advisory opinions with the claim that they could change their minds "without difficulty"[32]if arguments at bar showed an earlier advisory opinion to be in error. Vermont Congressman Israel Smith told his colleagues in 1802 that "nothing gives [a judge] greater pleasure than to have it in his power to correct an error, which he may discover in a former opinion."[33] Smith, though, was arguing for abolition of the separate circuit courts created by the Federalist Judiciary Act of 1801,[34] one effect of which would be to restore the Justices' dual service as circuit judges. The Justices themselves, however, had never wanted the onerous burden of traveling about the circuits. Ten years earlier, in making their case, they told Congress that

Justice Blair put the question when the Court reviewed a circuit court's decisions. He recused himself but announced that he held "the impressions which my mind first received," adding parenthetically, however, that he did not know if those impressions persisted "whether through the force of truth, or from the difficulty of changing opinions, once deliberately formed."[36]

It takes nothing from the eloquence of the phrasing-- nor the sincerity of the writers--to observe that the debate has not come very far in almost 200 years. Is our knowledge--not suspicion, but knowledge--about the factors that may create extrajudicial bias much more today than it was in the eighteenth century?

The ways in which extrajudicial activity might warp a judge or Justice are varied. Impartial decision making might be frustrated by prior contact with an issue off the bench. It is certainly well established that Justices are able to keep separate their judgment of the legal merits of a specific enactment from their general view of its policy objectives. Murphy, for example, showed that Justice Brandeis's votes in various cases testing economic regulatory statutes could not be foretold by his lobbying activities with respect to the statutes.[37]

There are, though, other threats to judicial impartiality than simply the judge's desire to cling to positions already espoused. A judge might want to please those in a position to award opportunities for extrajudicial service. In fact, the major objection to the first serious instance of a Justice's extrajudicial service--Jay's serving as ambassador to Great Britain--was not that he would be unable to decide cases fairly because of any diplomatic contacts with litigated issues. Rather it was that Justices would decide cases as the President wished in order to earn prestigious extrajudicial appointments.[38] The same thought shows itself in Frankfurter's opposition to judges who run for office from the Bench, namely Douglas. Douglas's votes on cases, Frankfurter feared, were determined by "whether they might help or hurt his chances for the Presidency." He was "'writing for a different constituency."[39]

Others might respond that these are wrong questions; regardless of whether Justices actually become tainted, the citizenry will perceive the judges as biased, and the Court will lose the public support essential to acceptance of its decisions.

Those who worry about public opinion, however, sometimes assume a level of public knowledge well beyond what the evidence justifies. Murphy, for example, asserts that in the early twentieth century "a forgiving public [had] recently acquiesced for the first time in over forty years to a close advisory relationship between a Supreme Court Justice [William Moody] and a President [Theodore Roosevelt]."[40] The evidence suggests, though, that the public knows little of the Justices or what they do on the Bench, and it is likely that the public knows less of extrajudicial activities, even when publicly reported. In short, the public could not "forgive" Mode’s relationship with Roosevelt because it probably had no clue that there was any relationship.

The visibility of the Supreme Court is not easy to measure, but probably it is lower than might be inferred from popular opinion polls that appear in the press--based on forced-choice responses to questions about which people may in fact have no information. Walter Murphy and Joseph Tanenhaus set about the task of measuring the Court's visibility in the 1960s, and found that, in 1964 and in 1966, less than half their respondents even attempted to answer "an open-ended question seeking to learn what the Supreme Court in Washington has done that you have disliked.., liked...?"[41] To a question about the Supreme Court's constitutional role, less than 40 percent could give answers that could be coded according to one of ten broad functions--e.g., "interpret the Constitution," or "settle basic questions." Furthermore, this survey was conducted in a period of heightened and presumably visible Supreme Court activity. On the other hand, as Murphy and Tanenhaus note, open-ended questions may underestimate visibility because people have difficulty remembering what they do know. Moreover, visibility increased with education.[42]

Nevertheless, it is hard to ignore the results of a Washington Post national survey in 1989 in which over half the respondents could name the judge who appears on a popular daytime television program but only nine percent could identify the Chief Justice of the United States. [43] Given these measures of visibility of the Court, one can wonder how many people have any knowledge--much less any views-- about a Justice's speech, lecture, or visit with the President. There is, though, another consideration. Even if John 0. Citizen is unaware of what the Justices do--on or off the Bench--the Court does have a constituency of those who follow public events, and, more particularly, of various segments of the legal community. That constituency's attitude toward the Court probably influences the Court's effectiveness, by setting a climate of trust, or distrust, regarding the Court's ability to reach its decisions free from the pressure of improper influence. A controversial matter off the Bench--regardless of whether it affects judicial performance--creates an ambiguity, a doubt, that a Justice can have a partisan position on one issue (in, for example, a speech off the Bench) but maintain a dispassionate, neutral position on the Bench on another issue. This doubt is possible even if the two sets of issues are completely distinct for the judge, and probable if they are not.

When Brandeis voted to sustain the Agricultural Adjustment Act after lobbying against it,[44] he may have committed a serious error just the same, simply by threatening a judicial rebuke to the Act. As Murphy wisely observes, Brandeis's action may have led the officials with whom he consulted to believe that they had persuaded a Justice how to vote in a case.[45] What would be the effect, for another example, on trust in the Court if it were known that one of its members was lobbying actively for the appointment of certain individuals to the Bench? There is presumably a limit to how much of this kind of ambiguity the Court's constituency will tolerate before it begins to discount the authority of the judicial fiat.

The implications of this speculation, however, tend to becloud what the speculation is about, viz., empirical questions. How, in fact, does extrajudicial activity affect the Justices' work on the Bench--their ability to decide cases without prejudice--or public confidence in the Court? I do not pretend that we have the methodological tools to answer those questions, but I think we would elevate the debate if we recognized the kinds of questions they are.

1. 20 U.S.C. § 42.
2. 28 U.S.C. § 331.
3. 28 U.S.C. § 621 (a)(1).
4. 28 U.S.C. § 991 (1).
5. Mistretta v. U.S., 109 S. Ct. 647 (1989).
6. Murphy, The Brandeis/Frankfurter Connection: The Secret Political Activities of Two Supreme Court Justices, New York: Oxford University Press (1982).
7. 1 M. Farrand, The Records of the Federal Convention of 1787, at 78 (rev. ed. 1937). The convention of course rejected the specific objective that Mason was advocating, viz., a Council of Revision, with judicial membership.
8. Wheeler, "Extrajudicial Activities of the Early Supreme Court," 1973 Sup. Ct. Rev. 123.
9. Parker, "The Judicial Office of the United States," 23 N.Y.U. Law Q. Rev., 225, 237 (1948).
10. C. Woodward, Reunion and Reaction 154 (1951) (quoting the Louisville Courier-Journal, Jan. 22, 1877).
11. See proposed S.J. Res. 164, 97th Cong., 1^st Sess., 128 Cong. Rec. 4028 (1982), and statements by Senators Stevens and Baker, Id. at 4027-28.
12. Model Code of Judicial Conduct Canon 4B, & commentary (1990).
13. See the discussion, and the literature cited therein, in W. Brown, Federal Rulemaking: Problems and Possibilities (Federal Judicial Center 1981).
14. Nonjudicial Activities of Supreme Court Justices and Other Federal Judges: Hearings on S. 1097 and S. 2109 before the Subcomm. On Separation of Powers of the Senate Comm. On the Judiciary, 91^st Cong., 1^st Sess. 138 (1969) (statement of Alexander Bickel, Chancellor Kent Professor of Law and Legal History, Yale University) [hereinafter cited as Nonjudicial Activities Hearings].
15. Murphy, supra note 6 at 316-17.
16. R. Watson & R. Downing, The Politics of the Bench and the Bar, 337-38 (1969). The United States Judicial Conference's Committee on the Codes of Conduct has accepted "the premise that, as [federal] judicial selection processes become more institutionalized and with wider participation, judges have a responsibility [when asked specifically or by a general call for information] to communicate their recommendations and evaluations to the appointive authorities--the President and Senators--and their selection committees or commissions." Advisory Opinion No. 59, Apr. 16, 1979.
17. 307 U.S. 277 (1939).
18. W. Douglas, Go East, Young Man: The Early Years 466 (1974).
19. Id.
20. Murphy, supra note 6 at 185, 343.
21. Id. at 227, 282, 302.
22. Douglas, supra note 18, at 469.
23. 409 U.S. 824 (1972) (memorandum of Rehnquist, J.).
24. 409 U.S. at 835.
25. Margolick, "2 Justices' Friends Back Secret Role," New York Times, Feb. 21, 1982, sec. 1, at 27, col. 1.
26. O'Malley v. Woodrough, 307 U.S. 277, 282 (1939).
27. There have been few serious efforts to calculate how Justices allocate their time. One is Hart, "Foreword, The Time Chart of the Justices," 73 Harv. L. Rev. 84 (1959), partially updated in Baker and McFarland, "The Need for a New National Court," 100 Harv. L. Rev. 1400, Need for a New National Court," 100 Harv. L. Rev. 1400, 1401-04 (1987). Hart's study involved, by his admission, "guesswork in part," Id. at 84, and more than that, estimates expressed in averages, which say little about the capacity of nonfungible Justices to allocate their time. In any event, Hart's concern was not the amount of time drained away by extrajudicial activities. An analysis in 1972 of the United States Court of Appeals for the Third Circuit revealed that 40 percent of the judges' time was devoted to matters unrelated to cases--mainly court administration activity. The study could not say--it would have been imprudent to ask--what amount of time went to the full range of extrajudicial activities. See Federal Judicial Center, A Summary of the Third Circuit Time Study (Federal Judicial Center 1974).
28. Transcript of "A Conversation With Earl Warren," in Brandeis [University] Television Recollections, taped May 3, 1972, WGBH, Boston, p. 21. Quoted with permission of Dr. Abram L. Sachar.

Justice Hughes' arbitration of the Guatemala-Honduras boundary dispute, although successful, led him to counsel against similar assignments to Justices because of "the draft upon time and energies." The Autobiographical Notes of Charles Evans Hughes 167 (D. Danelski & J. Tulchin eds. 1973).

29. Murphy, supra note 6 at 273-75.
30. Nonjudicial Activities Hearings, supra note 14, at 142.
31. Id.
32. Sackville's case, 2 Edens Ch. 371-72 (1760).
33. 11 Annals of Congress 706 (1802). Federalist James Bayard saw it differently: To Assume a Justice would not "be gratified" by an affirmance of an earlier decision "is estimating the strength and purity of human nature upon a possible, but not on its ordinary scale." 11 Annals of Congress 618.
34. Act of Feb. 13, 1801, ch. 4, 2 Stat. 89 (1801.
35. Letter of the Justices to the Congress, Nov. 7, 1792, reprinted in 1 American State Papers 52.
36. Penhallow v. Doane, 3 U.S. (3 Dall.) 54 at 109 (1795).
37. See Murphy, supra note 6 at 54-55 and 142.
38. A Jeffersonian paper complained that it was necessary that Jay be in the country were he needed to preside over any impeachment proceedings, but also "that he should be above the bias which the honor and emoluments in the gift of the executive might create, . . ." Aurora General Advisor (Philadelphia), May 10, 1794.
39. Murphy, supra note 6 at 267.
40. Id. at 17.
41. Murphy & Tanenhaus, "Public Opinion and The United Sates Supreme Court," in Frontiers of Judicial Research 273, 276-77 (J. Grossman & J. Tanenhaus eds. 1969).
42. Murphy & Tanenhaus, supra, at 276-86. See also Tanenhaus & Murphy, "Patterns of Public Support for the Supreme Court: A Panel Study," 43 J. Pol 24, 29 (1981).
43. The Chief Justice's recognition was highest for all members of the Court except Justice O'Connor, who was named by about a fourth of the respondents. Morris, "Wapner v. Rehnquist: No Contest," Washington Post, June 23, 1989, A-21.
44. Murphy, supra note 6 at 142.
45. Id.