From Fuller to Stone - Chief Justices I Have Known

Felix Frankfurter


(Note: In May 1953 -- while Chief Justice Vinson was still in office -- Mr. Justice Frankfurter gave this informal talk to the law students at the University of Virginia. It appeared in the November 1953 issue of the Virginia Law Review and is reprinted here, with permission of the board of editors of the journal, in slightly abridged form. -Ed.)

The five Chief Justices of whom I'll speak are Fuller, White, Taft, Hughes, and Stone. But, of course, in order that what I say may have something more than merely episodic significance, a few preliminary remarks ought to be made.

The one judicial figure whom even the least informed knows of in the history of the United States is the great Chief Justice John Marshall, of your commonwealth. It is an interesting fact that although for practical purposes, for essential purposes, the history of our constitutional law almost begins with him, and the history of that Supreme Court of the United States significantly begins with him, he was the fourth Chief Justice. His predecessors–three predecessors–all had very short tenure.

Then came the great John Marshall. I should say the three greatest Chief Justices we've had were John Marshall, Roger Taney, and Charles E. Hughes. It is an interesting thing that the first two of these between them, and in immediate succession, served for almost one half of the 164 years the show has been going. I mention the duration of their service–Marshall's and Taney's; Marshall from 1801 to 1834, thirty-three years; and Taney from '34 to '64 because the length of time during which a Chief Justice presides over the Court has, of course, a great deal to do with his place in history. Time is one of the most important factors in the realization of a man's potentialities.

Coming to the Chief Justices whom I've seen, whom I've seen in action, about whom professionally I may be allowed to have some judgment, let me come down to 1888 when Grover Cleveland appointed a man who was not known generally to the country at all. I suppose Melville Weston Fuller was a man about whom there was nothing in what newspapermen call the morgues of the leading newspapers in the country. He had no record to speak of, except a professional one. His appointment is an illustration, a striking illustration, of the contingencies of life. And I think he–and I shall speak of others–illustrates the importance of not having a fixed, specific ambition in life. The chances of realizing a specific ambition, the laws of chance, are so much against you, that, if I may say so, I do not think any of you should harbor an ambition to become Chief Justice of the United States. The likelihood that you will realize it – I don't know what the mathematicians, if there be any in this audience, would say–is worth nothing, and the likelihood that you will have an embittered life is very considerable. The thing to do is to have ambition in a certain direction but not to fix it on a point of arrival, an ambition going to purpose in life and not to the particular form in which that purpose is to be attained.

When Chief Justice Waite died, if a poll had been taken among lawyers and judges to determine the choice of a successor, I don't suppose a single vote would have been cast for Melville W. Fuller, certainly outside Chicago. Indeed, he was not Grover Cleveland's first choice. It was widely believed that a man named Edward J. Phelps of Vermont would become Chief Justice. He was a leader of the bar. He was an eminent man. He'd been Minister to Great Britain. But 1888 was a time when the so-called Irish vote mattered more than it has mattered in more recent years. Edward J. Phelps, as has been true of other ministers and ambassadors to Great Britain, made some speeches in England in which he said some nice things, believe it or not, about the British people. Patrick Collins, a Democratic leader, the then mayor of Boston, felt that that wouldn't do. A man who says nice things about the British can't possibly make a good Chief Justice of the United States. And since Patrick Collins was a powerful influence in the Democratic party, he advised President Cleveland that if he sent Phelp's name to the Senate, the chances of confirmation might (not be very bright. Phelps's name was not sent to the Senate.

Melville Fuller was a Vermonter by birth, educated in Bowdoin and the Harvard Law School. As a young man, after a little political activity in Augusta, Maine, he tried his luck in the beckoning West. He went to Chicago, where he was very active as a Democrat. In that way it chanced that Grover Cleveland came to know him, and knowing him to respect him. After some maneuvering, Cleveland named Fuller, to the great surprise of the press of the country, and even of the profession. Fuller was confirmed, but with a very large vote in opposition. One of the opponents of confirmation was Senator Hoar of Massachusetts, then on the powerful Judiciary Committee, who afterwards did the handsome thing by saying how wrong he had been, just as in our day Senator Norris, who had opposed the confirmation of Harlan F. Stone, later publicly expressed his regret.

The point about Fuller was, or rather is, that he was a lawyer, and a lawyer only. I need hardly tell this audience that to me being a lawyer, with the full implications of responsibility and opportunity that the word carries, in a society like ours, in a government of laws under a written Constitution, is a calling second to none. Melville Fuller had held no public office of any kind, unless you call being a member of a constitutional convention public office. He was a practicing lawyer. He was fifty-five years old when he was appointed to the Supreme Court, and he had not only had no judicial experience, he had had, as I have said, no official experience of any kind. I think Fuller was the only man, with the exception of his immediate predecessor, who came to the chief justiceship so wholly without a record in official public life.

At all events, Fuller came to the court as a man who had had wide experience at the bar, and, what is important, wide experience at the bar of the Supreme Court and with the kind of business that came before the Supreme Court in his day. He was a dapper little 'man. I remember vividly–I still remember–seeing him for the first time. I was a student at the Harvard Law School and he was president of the Harvard Alumni Association. He was introducing the speaker of the day, none other than William H. Taft, who had just returned from the Philippines to become Secretary of War. Fuller had silvery locks, more silvery and more–what shall I say–striking, because he was a little man, than the locks of the former Senator from Texas, Tom Connally. He was an extremely cultivated man, which is important. He read the classics. He was a student of history. He had felicity of speech.

Fuller came to a Court which wondered what this little man was going to do. There were titans, giants on the bench. They were powerful men, both in experience and in force of conviction, and powerful in physique, as it happened. For myself, I think all Justices of the Supreme Court should be strong, big, powerful-looking men! Certainly those whom he met there, who welcomed him courteously but not hopefully, were as I've described them. Believe it or not, there's ambition even in the breasts of men who sit on the Supreme Court of the United States. There's a good deal to be said for the proposal of Mr. Justice Roberts that no man should ever be appointed to the Chief Justiceship from the Court.

Fuller met on that Court at least four or five men of great stature. The senior among them was Samuel F. Miller, who had been appointed by Lincoln, and whose career, incidentally, is an exciting story of American life, because Miller started out as a physician, practiced medicine for ten-odd years, twelve-odd years, until he became a lawyer and in very quick order a Justice of the Supreme Court. He had great native ability, and he was a strong man. Fuller, if they had had the expression in those days, might have been called an egghead. He was a blue-blooded intellectual. The contrast was great. Then there was Harlan, a Kentuckian, six feet-three, a tobacco-chewing Kentuckian. You didn't have to come from Kentucky to chew tobacco in those days. They did it in Massachusetts. But Harlan was all Kentuckian. There was a smallish man whom I regard as one of the keenest, profoundest intellects that ever sat on that bench, Joseph Bradley of Jersey. And then there was Matthews of Ohio, and a six feet five or six inch giant from Massachusetts, Horace Gray. Those were the big men, the powerful men, the self-assured men, over whom Melville Fuller came to preside.

They looked upon him, as I've indicated, with doubt, suspicion, but he soon conquered them. He conquered them and they soon felt that the man who presided over them justly presided over them. He had gentle firmness. He had great courtesy. He had charm. He had lubricating humor. Justice Holmes was fond of telling a story. In his early days, he said, "I'm afraid my temper was a little short." And there could hardly be two men more different than Mr. Justice Holmes who wielded a rapier, and Mr. Justice Harlan, who wielded a battle-axe. A rapier and a battle-axe locked in combat are likely to beget difficulties for innocent bystanders. Justice Harlan, who was oratorical while Justice Holmes was pithy, said something that seemed not ultimate wisdom to Holmes. Justice Holmes said he then did something that isn't done in the conference room of the Supreme Court. Each man speaks in order and there are no interruptions, no cut-ins or cuts-in, whichever the plural is –because if you had that you would soon have a Donnybrook Fair instead of an orderly proceeding. But Holmes said, "I did lose my temper at something that Harlan said and sharply remarked, 'That won't wash. That won't wash.' "Tempers flared and something might have happened. But when Holmes said, "That won't wash," the silvery-haired, gentle, small, Chief Justice said, "Well, I'm scrubbing away. I'm scrubbing away."

He presided with great gentle firmness. You couldn't but catch his own mood of courtesy. Counselors too sometimes lose their tempers, or, in the heat of argument, say things, and there was a subduing effect about Fuller. Soon these men, who looked at him out of the corner of their eyes, felt that they were in the presence of a Chief whom they could greatly respect. I have the authority of Mr. Justice Holmes, who sat under four chief justices in Massachusetts before he came down to Washington, and under three in Washington, that there never was a better presiding officer, or rather, more important in some ways, a better moderator inside the council chamber, than this quiet gentleman from Illinois.

Somehow or other the felicity of his pen, more of his tongue, but also his pen–if you will read a speech he made on the occasion of the centennial of the founding of this country, reported in 132 United States Reports–that charm which he had in occasional writings did not manifest itself, or he did not exert it, in his opinions. You cannot tell the quality or the importance of a man on the Supreme Court solely from his opinions. And so Fuller's opinions will give you nothing of his charming qualities. He's rather diffuse. He quotes too many cases. And generally he's not an opinion writer whom you read for literary enjoyment, though you can profitably read his non-judicial things for that purpose.

Fuller died in 1910, and the appointment of his successor is a most interesting episode in American history, because Fuller died shortly after President Taft had named Governor Hughes of New York as an Associate Justice. As a matter of fact, Hughes had not even taken his place, when, in the summer, shortly after he was named, Fuller died. In offering Governor Hughes the place on the Supreme Court, President Taft–a great admirer, not unnaturally of Hughes, who made the decisive campaign speech for Taft in 1904 at Youngstown, Ohio–Taft, with that charming exuberance, that charming forthrightness of his, indicated that Fuller can't live forever, and that, of course, he, Hughes, would be the natural choice of Taft for the chief justiceship. He indicated, as much as words can indicate, that he would name Hughes to be Chief Justice. Then, having doubtless re-read the letter after he signed it, he scribbled under it a postscript, being fully aware of his delightful and generous indiscretion, "Of course, I do not make this as a firm promise," or words to that effect. I'm not quoting accurately. Governor Hughes, in accepting the position, told the President that of course he was as free as a bird as far as the chief justiceship was concerned.

Well, a vacancy in the chief justiceship did occur six weeks after this exchange of letters, and everybody expected Hughes to be made Chief Justice. Hughes took his seat, and it must have been extremely embarrassing for the baby member of the Court to be the heir apparent to the vacant chief justiceship. Some of the older fellows must have had thoughts. In fact, they had more than thoughts. They didn't like the idea. You know, the notion of a freshman runs through life–younger brother,. younger sister, freshman at college, freshman on the Supreme Court.

By that time–1910-–the Court had completely changed. Of the men whom Fuller found when he went there in 1888 only one survived, and that was Harlan. There were very strong men on the Court in 1910. It would be a pathetic Court indeed if there weren't always at least some strong men on it. By 1910 there were some new strong men. When Hughes joined the court he found there in addition to Mr. Justice Harlan that nice bird-like creature with a beard, Mr. Justice McKenna of California. Holmes by that time was on and had been on for eight years. There was Mr. Justice White. There was a very strong man named Van Devanter. There was Mr. Justice Day, and there was Mr. Justice Lamar.

They didn't like the idea of having this untried New York governor, New York politician, become Chief Justice. They drew up a round robin to present to Taft, who had appointed some of them. They saw President Taft, I believe, and indicated that they didn't like to have their junior member made Chief Justice. Mr. Justice Holmes, with his characteristic high honor, refused to join this kind of protest. He was perfectly ready to have Hughes become Chief Justice.

Taft appointed a member of the Court, a powerful member of the Court, Edward D. White of Louisiana. President Taft was glad to appoint–we are so much removed from 1910 in some ways–Taft found it appealing to appoint White as Chief Justice because White had been a Confederate. It wasn't until the 'eighties that a Confederate southerner had again been put on the Supreme Court. That was Lucius Quintus Cincinnatus Lamar of Mississippi. But to make a Confederate, an ex-Confederate–are Confederates ever "ex"?–Chief Justice was something that could contribute much, even then, so Taft thought, and I believe rightly, to the cohesion of our national life.

We shall never know what happened, but within twenty-four hours there was a change in the mind of Taft, and it was then that White became Chief Justice. There is the most absurd, and most absurdly contradictory, testimony of people who think they do know what happened. Within a half hour after Taft summoned Hughes, probably to tell him he was going to be Chief Justice, he cancelled the request that Hughes come. During that time something happened.

Anyhow, White was made Chief Justice. At the Saturday conference following the sending of White's name to the Senate, Hughes, the junior member of the Court, made what I am told was one of the most gracious speeches of welcome to the new Chief Justice, Edward D. White.

Now let me tell you about him. He looked the way a Justice of the Supreme Court should look, as I indicated a little while ago. He was tall and powerful. I think a jowl also helps a Justice of the Supreme Court. He had an impressive jowl. He came from Louisiana, as I've said. He was a drummer boy in the Confederacy, which had upon him a very important influence, dot only in life, but as a judge–a very profound influence. It is a very interesting thing, but Edward D. White, the Confederate drummer boy, was much more nationalistic, if that phrase carries the meaning I should like it to carry, was far more prone to find State action forbidden as an interference with federal power than was Holmes, the Union soldier, who went to his death with three bullets in his body. White was so impressed with the danger of divisiveness, with the danger of separatism, with the intensification of local interest in the disregard of the common national interest, that again and again and again he found that local action had exceeded the bounds of local authority, because it might weaken and endanger the bonds of national union. One of the most interesting things is the division between him and Holmes in specific instances, where White was, if we may use colloquial, inaccurate terms, for centralization and Holmes was for "States' rights."

By the time White came to be Chief Justice the Federal Government had gone in for regulation more and more. Hughes was on the Court, with great experience, as governor of New York, in regulating business. During White's tenure, Brandeis came on the Court, without any previous judicial experience, but with, I suppose, unparalleled experience in the domain of practical economics, with an understanding of the relations of business to society. Yet, though White came to the chief justiceship with full knowledge of the Court's business and with a strong hold on his colleagues, if anybody thought that merely because of that there'd be unanimity of opinion, there'd be a want of differences of course he was bound to be mistaken. And indeed, during White's tenure, the divisions became more and not fewer. But he was master of his job. There was something very impressive about him, both in appearance and otherwise. He was an impressive-looking person. He was also a great personality. He was a master of speech, though a master of too abundant speech. I should suppose, on the whole, his opinions, are models of how not to write a legal opinion. He made three words grow, usually, where there was appropriate room only for one.

The Court became more and more divided in opinion during his' period, not because of him, but because the issues became more contentious, the occasions for making broad decisions, broad rulings were fewer and matters became more and more, as Holmes early pointed out and for fifty years continued to point out, matters of degree.

White was Chief Justice only for ten years, and when he died an astonishing thing happened, unique in the history of this country and not likely to recur, at least as far as one can look ahead:–an ex-President of the United States became the Chief Justice of the United States. That was, of course, William H. Taft.

Taft became Chief Justice at the age of sixty-three, having been, as indicated, a notable judge, but having been out of the business of judging and out of touch with the Supreme Court, except for having filled four of its nine places, for twenty years. He was a very rusty lawyer indeed when he came to preside over the Court. He himself said, and he was very happy to say, with that generosity of his which politicians would do well to, but do not often, imitate, that whatever he did as Chief Justice was made possible by his great reliance on him whom he called his "lord chancellor," Mr. Justice Van Devanter. Mr. Justice Van Devanter is a man who plays an important role in the history of the Court, though you can't find it adequately reflected in the opinions written by him, because he wrote so few. But Van Devanter was a man of great experience. He'd been chief justice of Wyoming. He was then made a circuit judge, a United States circuit judge, and became a member of the Supreme Court in 1910. He had a very clear, lucid mind, the mind, should I say, of a great architect. He was a beautiful draftsman and an inventor of legal techniques who did much to bring about the reforms which, of course, were effectively accomplished by Taft as Chief Justice.

Taft's great claim, I think, in history will be as a law reformer. In the characteristic way of this country, various federal judges throughout the country were entirely autonomous; little independent sovereigns. Every judge had his own little principality. He was the boss within his district, and his own district was his only concern. A judge was a judge where he was, and although he may have had very little business, he couldn't be used in regions where the docket was congested. This, as you 'know was changed, and the change has been, of course, highly beneficial. An even more important reform for which Taft was effectively responsible was the legislation authorizing the Supreme Court to be master in its own household, which means that the business which comes to the Supreme Court is the business which the Supreme Court allows to come to it. No case can come up without prior permission, as it were, prior leave.

Taft was followed, of course, by Hughes. Now the last thing that Hughes ever expected to be after he left the Court in 1916 to run for the Presidency–I have ventured to say in print that I believe this was the one act of his life which he regretted–then became Secretary of State, then became a member of the World Court, and finally returned to the bar to, I suppose, as vast a practice as that of any man at the bar in our time, or at any time in the history of this country–the last thing Hughes expected to become was Chief Justice. He was, of course, to Hoover's great surprise, subject to severe attack when his name was sent in. He finally was confirmed though it was a nip and tuck business. He took his seat at the center of the Court, with a mastery, I suspect, unparalleled in the history of the Court, a mastery that derived from his experience, as diversified, as intense, as extensive, as any man ever brought to a seat on the Court, combined with a very powerful and acute mind that could mobilize these vast resources in the conduct of the business of the Court. There must be in this room lawyers who came before the Court when Chief Justice Hughes presided. To see him preside was like witnessing Toscanini lead an orchestra.

Aside from the power to assign the writing of opinions, which is his by custom and of which I shall speak, a Chief Justice has no authority that any other member of the Court hasn't. That really is an institution in which every man is his own sovereign. The Chief Justice is prim us inter pares. He presides. Somebody has to preside at a sitting of nine people, and he presides in Court and at conference. But Chief Justice Hughes radiated authority, not through any other quality than the intrinsic moral power which was his. He was master of the business. He could disembowel a brief and a record. He had an extraordinary memory and vast experience in the conduct of litigation, and of course he had been on the Court six years, from '10 to '16. And, he had intimate and warm relations with some of the men he found on the Court. He was a great admirer of that greatest mentality of all, that greatest intellect, in my judgment, who ever sat on the Court–I say intellect–Mr. Justice Holmes. He was an old friend at the bar of Mr. Justice Brandeis. He'd been one year in the Cabinet with Stone. So he not only felt at home in the courtroom, he felt at home with his colleagues.

I've often used a word which for me best expresses the atmosphere that Hughes generated; it was taut. Everything was taut. He infected and affected counsel that way. Everybody was better because of Toscanini Hughes, the leader of the orchestra. That was true of Cardozo, when he was chief judge of the New York Court of Appeals. One is told that the same men were somehow or other better when he was chief judge than they were the next day, after he had ceased to be chief judge. That's a common experience in life. One man is able to bring things out of you that are there, if they're evoked, if they're sufficiently stimulated, sufficiently directed. Chief Justice Hughes had that very great quality.

Chief Justice Stone is, of course, the antithesis, in the fate that was allotted to him, to Marshall and Taney and Fuller. If you're only Chief Justice for five years, as Stone was, even though you come to the chief justiceship after having been an Associate, the opportunities to capitalize on the moral opportunities that place gives you are necessarily very limited. Time plays a very important part. Stone came to the Court in '41. He'd been an Associate Justice since '25, been on the Court sixteen years. Before that he had been Attorney General, been a professor of law and dean of a law school, and an extensive practitioner in New York. He was familiar with the business of the Court. He was a very different personality from Hughes. Hughes was dynamic and efficient. That's a bad word to apply to Hughes, because it implies regimentation. It implies something disagreeble, at least to me. I don't like to have a man who is too efficient. He's likely to be not human enough. That wasn't true of Hughes. He simply was effective–not efficient, but effective. Stone was much more easy-going. The conference was more leisurely. The atmosphere was less taut, both in the courtroom and the conference room. It has been said that there wasn't free and easy talk in Hughes' day in the conference room. Nothing could be further from the truth. There was less wastefull talk. There was less repetitious talk. There was less foolish talk. You just didn't like to talk unless you were dead sure of your ground, because that gimlet mind of his was there ahead of you.

Stone was an "easy boss," as it were. Boss is the worst word to use with reference to the Chief Justice of the United States, because that's precisely what he isn't. Anybody who tried it wouldn't try it long. There is one function, however, that the Chief Justice has by virtue of being Chief Justice, other than being the administrator, presiding in open court and presiding at the conference and being the first man to lay open the problems before us–the cases that have been argued and the cases in which petitions have been filed. That other function is, I believe, the most important of all that pertains to the office of Chief Justice.

From Marshall's time in the Supreme Court the Chief Justice has designated the member of the Court who writes the opinion of the Court. As most of you know, we hear argument five days a week and on Saturday there's a conference. After everybody has had his say, beginning with the Chief Justice and following in order of seniority there is a formal vote. In order that the junior shouldn't be influenced, everybody having already expressed his view, the formal voting begins with the junior. How careful we are not to coerce anybody! After conference, in cases in which the Chief Justice is with the majority, as he is in most instances, he designates the member of the Court who is to write the opinion. If he is in the minority, then the next senior Justice does the assigning. So that in most of the cases the Chief Justice decides who is to speak for the Court. Of course, as for dissents and concurrences –that's for each member to choose for himself.

You can see the important function that rests with the Chief Justice in determining who should be the spokesman of the Court in expressing the decision reached, because the manner in which a case is stated, the grounds on which a decision is rested–one ground rather than another, or one ground rather than two grounds–how much is said and how it is said, what kind of phrasing will give least trouble in the future in a system of law in which as far as possible you are to decide the concrete issue and not embarrass the future too much–all these things matter a great deal. The deployment of his judicial force by the Chief Justice is his single most influential function. Some do that with ease. Some do it with great anguish. Some do it with great wisdom. Some have done it with less than great wisdom.

No Chief Justice, I believe, equaled Chief Justice Hughes in the skill and the wisdom and the disinterestedness with which he made his assignments. Some cases are more interesting than others, and it is the prerogative of the Chief Justice not only to be kindly and fair and generous in the distribution of cases, but also to appear to be so. The task calls for qualities of tact, of understanding, and for skill in the effective utilization of the particular qualities that are available. Should one man become a specialist in a subject? Or is it important not to place too much reliance on one man because he's a great authority in the field? Should you pick the man who will write in the narrowest possible way? Or should you take the chance of putting a few seeds in the earth for future flowering? Those are all very difficult, very delicate, very responsible questions.

What is essential for the discharge of functions that are almost too much, I think, for any nine mortal men, but have to be discharged by nine fallible creatures, what is essential is that you get men who bring to their task, first and foremost, humility and an understanding of the range of the problems and of their own inadequacy in dealing with them; disinterestedness, allegiance to nothing except search, amid tangled words, amid limited insights, loyalty and allegiance to nothing except the effort to find their path through precedent, through policy, through history, through their own gifts of insight to the best judgement that poor fallible creatures can arrive at in that most difficult of all tasks, the adjudication between man and man, between man and state, through reason called law.