Lewis F. Powell, Jr.

(Editor's Note: The following was an address delivered by Justice Powell at the banquet of the American College of Trial Lawyers. New Orleans, August 8, 1981.)

The news at the Supreme Court, of special interest to every lawyer, is the retirement of Justice Stewart and the appointment of Sandra Day O'Connor as his successor. Potter Stewart was on the Court for 23 years, during a period of vast changes in our society and the world. During his service, decisions were made that profoundly affected and–in some instances–accelerated these changes.

Potter Stewart, when interviewed by the press, identified the qualifications of a good judge: a high degree of legal competency, a judicial temperament, and–of course–character and diligence. He personified these characteristics. He was a gifted lawyer, had a unique capacity for detachment, and certainly possessed the character and diligence of the ideal judge. He also was a thoughtful and generous colleague, with a high sense of institutional responsibility He will be greatly missed.

A change in the composition of the Court prompts one to wonder how a particular lawyer happens to be chosen. Apart from "luck," what does history teach?

Professor Alpheus Mason–distinguished scholar and Supreme Court historian–has written:

Two of Dr. Mason's statements are historical facts. The nomination and confirmation of Justices are in the hands of elected politicians. The Constitution so provides. It also is true that "controversial political objectives" often have motivated the nomination by a President, as well as the action of the Senate.

But has the Supreme Court, as Dr. Mason states, "always consisted largely of politicians"? The statement can be read in different ways. Were Justices chosen primarily because they were successful politicians? If so, did their political views persist and influence their decisions?

The answer to the last question is clear. The Justices with the most impeccable political credentials rarely have remained loyal supporters of the political goals of the Presidents who appointed them. This fact is a tribute to the institutional independence of the Court, and largely accounts for the public respect and support that the Court has enjoyed for most of its nearly two centuries of existence.

It is less clear, however, that Justices have been chosen primarily because of political prominence. As this audience is composed of eminent practicing lawyers, I thought it might be of interest to explore this question.

I could talk about the present Court. But this would be a one sentence speech. None of us could claim any fame or skill as a politician–not even in influencing each other.

I turn, therefore, to history and take as a Gallup Poll sample the 14 Chief Justices who preceded the present Chief. Were they, as Dr. Mason suggests, primarily politicians, and chosen for this reason? I necessarily characterize their careers briefly

The first three Chief Justices–Jay, Rutledge and Ellsworth–hold prominent places in our history not because of their brief services as Chief Justice, but because each was a lawyer and also a political leader of great prestige during the Revolutionary Era.

John Marshall, on the other hand, was too young to play a comparable role in achieving independence and establishing our country He came to the Bar in my City of Richmond in 1783, and soon established a reputation as a litigation lawyer.

Like most Virginia lawyers at the time, Marshall also was active in politics. Yet, he declined positions as Attorney General of the United States, Minister to France, Supreme Court Associate Justice, and Secretary of War. He remained primarily a practicing lawyer until he became Secretary of State under President Adams.

His leadership at the Virginia Bar is documented in our records. In the decade of the 1790's, he argued 113 cases before the Virginia Court of Appeals. Although Marshall dressed slovenly, and was not eloquent, the power of his knowledge and force of his personality won him great respect. Beveridge, in his famed biography, states that Marshall was on one side or the other in almost every important case in Richmond.[2]

Roger Taney, who succeeded Marshall in 1836, also made his reputation initially as a successful lawyer in Maryland, enjoying an extensive practice in both state and federal courts. He argued several cases in the Supreme Court, and was co-counsel with Daniel Webster in at least one case.[3] He was on the losing side in Brown v. Maryland, a major Commerce Clause case.[4] Active support for President Jackson led this prominent lawyer to his appointment as Attorney General of the United States and later as Chief Justice.[5]

Salmon P. Chase was named by Lincoln in 1864 to succeed Taney Little need be said about Chase. He made his career in politics, and can be classified neither as a prominent lawyer nor as an admired Chief Justice.

The next two Chief Justices were distinguished private practitioners: Morrison Waite and Melville Fuller. Waite made his reputation as a litigation lawyer in Ohio. It is said that at the time (middle of the 19th century), Waite–like other western lawyers–spent much of his time riding circuit, usually on horseback and sometimes in wagons. Frequently the entire Ohio court, including lawyers and judges, traveled in a body, going from county to county.

Waite argued a great many cases in the Ohio Supreme Court, and his fame as an advocate spread well beyond the state. Apparently his performance as counsel in the Geneva Arbitration, following the War Between the States, attracted the favorable attention of President Grant, who appointed him Chief Justice in 1874.[6]

Melville Fuller succeeded Waite in 1888. He was an eminent Chicago lawyer, and argued at least one case in the Supreme Court during each term over a period of sixteen years. Fuller was the role model of a trial lawyer. Physically vigorous, with a flowing moustache and hair falling to his shoulders. He also was a powerful and well-read orator who often used quotations from classical and biblical literature.

Although never interested in holding public office himself, Fuller was active in Democratic politics, attending four National Democratic Conventions. This political activity, together with his fame as a lawyer, prompted President Cleveland to appoint him Chief Justice. Despite Fuller's eminence as a lawyer, he is not viewed as a great Chief Justice.

Edward Douglass White (Chief Justice 1910-1921) was another Chief Justice who first established a reputation as a talented and successful lawyer. He later served three years in the Senate, where he quickly became a leader. He was appointed an Associate Justice in 1894 by President Cleveland, apparently to serve the short-term political purposes of the President. Taft elevated White to the Chief Justiceship upon Fuller's death in 1910.

Historians seem divided as to why White, then aged 65, was chosen as Chief Justice over his colleague on the Court, Charles Evans Hughes, then aged 48. It is speculated, perhaps unfairly, that Taft preferred the older man in view of his own ambition to become Chief Justice following his Presidency In any event, it probably is fair to say that White was named Chief Justice primarily for political reasons, although he would have merited the appointment as a scholarly and successful lawyer.

Taft himself was named Chief Justice in 1921. In many ways, he was an ideal choice: magisterial in appearance (all 300 pounds!), and uniquely experienced in government. He could be viewed as a professional office holder, as he practiced law privately for less than two years.

His various offices did focus, for the most part' on the law, and seven years after admission to the Bar he became a Judge of the Superior Court of Cincinnati. He later served as Solicitor General of the United States, Judge of the U.S. Circuit Court of Appeals for the Sixth Circuit, Governor General of the Philippines, Secretary of War, and finally as President. Yet, his greatest ambition was realized when he became Chief Justice.

By contrast, if Charles Evans Hughes had held no public positions at all, he still would be remembered as one of this country's most gifted lawyers. He was a skilled litigator with an astonishing ability to master facts in new areas of the law. It is said that in one case he "learned the German language and the beet sugar industry from the ground up" to enable him to cross-examine German engineers appearing as expert witnesses.[7]

It was Hughes' awesome litigation ability that led to his appointment to several investigative positions, and by this route to the public offices which he graced with genuine distinction. It was Felix Frankfurter who once said: that to see Hughes "preside was like witnessing Toscanini lead an orchestra."[8]

Hughes will be remembered also for his critical role in defeating Roosevelt's "Court Packing Plan." As Hughes' opinions during the early thirties indicate, he could sympathize to some extent with Roosevelt's impatience with the Court, but wholly disagreed with a plan that could have undermined the independence of the Federal Judiciary Hughes' letter' to the Senate Judiciary Committee revealed the pretextual basis of the Court Packing Plan: the claim that efficiency required more Justices.

I will refer to only one of Hughes' memorable opinions: his decision in NLRB v. Jones & Laughlin Steel Corp., 301 U.S. (1937). It was said by some at the time that the Court had reacted to political pressure. But even if this was partially true, Hughes, the consummate lawyer, offered a rationale that explained the consistency of the opinion with prior decisions. Above all, his opinion maintained the principle of judicial supremacy in constitutional adjudication. It therefore preserved, in a time of potential crisis, the Court's key role in our society.

I mention only briefly three of Hughes' successors. Each enjoyed a distinguished career. Yet none of them attained wide recognition as a private lawyer. Stone was an eminent professor and law school dean. Vinson became a national figure as an influential congressman and important public official, including service as Secretary of the Treasury. Earl Warren's record as State Attorney General and three-term Governor of California–not his undistinguished career as a lawyer[9]–propelled him to the level of a serious presidential candidate.

The purpose of this thumbnail sketch of our first fourteen Chief Justices[10] was to consider–however roughly–whether success at the Bar or success in politics led primarily to their appointments. Most of them attained success both as lawyers and politicians."[11] In view of the diversity in the careers of all of these fine Americans, any classification of them as primarily great lawyers or primarily successful politicians is, to a large extent, a speculative personal judgment. Nevertheless, I venture the following conclusions.

The first three Chief Justices were conspicuous leaders in both fields at a time when the ablest lawyers also dominated the Government. Stone, the scholar, also was unique.

Among the other Chief Justices, I think it fair to say that Chase, Taft, Vinson, Warren and possibly White attained distinction–and the Chief Justiceship–primarily through political office. In my view, Marshall, Taney, Waite, Fuller and Hughes, despite political activity and service, attained prominence initially as lawyers of wide reputation. They were not primarily politicians.

On the basis of my "sample" of the 14 Chief Justices, I would qualify Dr. Mason's generalization that the Court has "always consisted largely of politicians."" None was a stranger to politics. Yet, the paths that led to the Court were sufficiently different to foreclose such a broad generalization.

Nor can greatness on the Court be predicted by the path to its Bench. Compare, for example, a Marshall with a Warren, or a Brandeis with a Black.

I return, in conclusion, to another response made by Justice Stewart to questions from a reporter. When asked, in effect, whether his personal philosophy was conservative, Potter Stewart replied:

However one happens to become a Justice or Chief Justice of the Supreme Court, the institution itself, its unique responsibility under our system, and its tradition of independence, cause members of the Court to agree with Justice Stewart as to their first duty Once one is sworn in, he or she has a new allegiance that transcends all else: the Constitution of the United States.

Endnotes

1. A. Mason, The Supreme Court from Taft to Burger 283 (3d Enlarged ED. 1997).
2. Marshall argued only one case before the Supreme Court: Ware v. Hylton, 3 Dall. 199 (1796).
3. Etting v. United States, 11 Wheat, 59 (1826).
4. 12 Wheat, 419 (1827).
5. Taney is best known, of course, for his decision in the Dred Scott case. Despite the contemporary bitterness and tragic consequences generated by that decision, Charles Evans Hughes--with the perspective of History--described Taney as "a great Chief Justice."
6. Despite Waite's widespread fame as a successful lawyer, he never argued a case in the Supreme Court. He was not a politician in the ordinary sense of the term, although he served one brief term in the Ohio legislature, and chaired a Constitutional Convention that wrote a new Constitution for Ohio.
7. McElwain, "The Business of the Supreme Court as Conducted by Chief Justice Hughes," 63 Harv. L. Rev. 5, 8-9 (1949).
8. 3 Friedman & Israel, The Justices of the Supreme Court 1913 (1980).
9. See Schwartz, "the Judicial Lives of Earl Warren," XV Suffolk University Law Review 1, 2 (1981) ("There was no hint of greatness in the first phase of Warren's career.").
10. I do not mention my friend and colleague Chief Justice Warren E. Burger, as my story ends with former Chief Justices.
11. In fairness to Dr. Mason, I have quoted only one sentence from his scholarly book, and thus do not fairly present his thesis.