Why Are Some Supreme Court Justices Rated as "Failures"?

by Robert W. Langran


In a book that was published in 1978 entitled The First One Hundred Justices: Statistical Studies on the Supreme Court of the United States (Hamden, Conn.: Shoe String Press [Archon Books]), Albert P. Blaustein and Roy M. Mersky put forth a list of our justices who had served on the Court from 1789 until 1969. In so doing, they grouped them into five categories: great (12 justices), near great (15), average (55), below average (6), and failures (8). Their ratings were based upon evaluations supplied by sixty-five reputable academicians in the area of judicial process. Upon careful examination, it would seem that some of the eight rated as "failures" were dealt with more severely than they deserved, perhaps due, in part, to a bias on the part of some of the evaluators.

In point of time, the furthest that these eight go back is the early part of the twentieth century through the New Deal era, as three of the eight just happen to be three of the "Four Horsemen" who consistently voted against New Deal measures. Is that pure coincidence, or does it perhaps reflect some "liberal" bias on the part of some of the evaluators? A look at their records should help.

Willis Van Devanter served on the Court from 1910-1937. Such a long tenure would lead one to think that Van Devanter would have authored a fair amount of majority, concurring, and dissenting opinions. That he did not is probably one of the reasons he was rated as a failure. He only wrote one concurring opinion and four dissents, and even his majority opinions were sparse. He authored fewer of them than any of his contemporaries, only two of note. One was in the 1912 case entitled the Second Employers' Liability Cases, 223 U.S. 1, in which he upheld the 1908 Federal Employers' Liability Act, making common carriers in interstate commerce liable for the injuries of their workers while they were directly engaged in interstate commerce (an earlier law had been struck down for not making that distinction). The other was in the 1927 case of McGrain v. Daugherty, 273 U.S. 135, in which he upheld the right of the Senate to arrest a person who had failed to honor a subpoena to testify concerning an investigation of the Department of Justice. Van Devanter concluded that the investigation was for a legitimate legislative purpose and, therefore, the Senate had acted properly. If measured by opinions authored, the evaluators of Justice Van Devanter would be correct. However, it seems that Justice Van Devanter was strong during the conferences when the justices discuss and vote on the cases. He allied himself with Taft when Taft became Chief Justice (Taft had appointed Van Devanter to the Court), and he left a lot of the opinion writing to Justice Sutherland, who was the intellectual leader of the conservatives and the only one of the "Four Horsemen" not to be rated a failure (he was rated a "near great"). Therefore, when one looks at total contribution to the Court, it would seem that Van Devanter should not have been rated a failure.

The second of the "Four Horsemen" to be called a failure was James C. McReynolds, who served from 1914-1941. McReynolds did author numerous opinions and dissents, so his rating seems to have been based on the fact that he was the Court's ultra-conservative and on his anti-Semitic feelings which he openly displayed to his Jewish colleagues Brandeis, Cardozo, and Frankfurter. Among his noteworthy opinions were Adams v. Tanner; 244 U.S. 590 (1917), in which he threw out a Washington law which made it illegal to charge someone a fee for helping them get employment. He felt this would put employment agencies out of business without the social justification for it. In Federal Trade Commission v. Gratz, 253 U.S. 421 (1920), McReynolds overturned an F. T. C. order against an unfair trade practice, stating that it was the Court which had the final say in these matters and that he did not find an unfair trade practice in this instance. Similarly, in Federal Trade Commission v. Curtis Publishing Company, 260 U.S. 568 (1923), he again overturned the Commission, finding that the facts as presented by the F T. C. were not supported by evidence. Also in 1923, in Meyer v. Nebraska, 262 U.S. 390, he overturned a Nebraska law which forbade the teaching of modern foreign languages in their elementary schools. He felt the law took away the liberty of parents to educate their children as they saw fit. Likewise, in Pierce v. Society of Sisters, 268 U.S. 510 (1925), he overturned an Oregon law which required all children between eight and sixteen years of age to attend public schools. He used the same reasoning as in the Meyer case as well as the related reason that the law took away the property rights of the private schools. In Ashton v. Cameron County Water District, 298 U.S. 513 (1936), he threw out the federal Municipal Bankruptcy Act of 1934 which had allowed subdivisions of states to file voluntary bankruptcy petitions. Although the state had the final say, he still felt the law invaded state finances and state sovereignty. His last notable opinion was in McCarroll v. Dixie Greyhound Lines, 309 U.S. 176 (1940), and he threw out an Arkansas law which said that any vehicle coming into the state with more than twenty gallons of gasoline had to pay the state gas tax on the excess. He said this was a tax on interstate commerce.

Among McReynolds' more notable dissents were, first of all, the one in Myers v. United States, 272 U.S. 52, (1926), in which the Court upheld the right of a President to remove a postmaster without the approval of Congress. McReynolds felt that subordinate executive officials could be subject to Congress for their removal, an opinion also expressed by Brandeis in a separate dissent. In Nebbia v. New York, 291 U.S. 502 (1934), McReynolds wrote the dissent for the four conservatives from a decision which allowed a state to set up a milk control board with the power to fix maximum and minimum prices. He felt the majority was changing the concept of due process of law due to emergency situations. That was not his concept of how the Constitution should evolve. His most scathing dissent, however, came the following year in which he again spoke for the four conservatives in the so-called Gold Cases: Norman v. Baltimore and Ohio Railroad Co. and United States v. Bankers Trust Co., 294 U.S. 240, Nortz v. United States, 294 U.S. 317, and Perry v. United States, 294 U.S. 330. In these cases, the Court upheld the government nullifying the gold clause in private and public contracts except for government bonds, but even in the latter case there could be no suit as the damages were only nominal. McReynolds felt this went far beyond the scope of congressional power. Finally, in N.L.R.B. v. Friedman-Harry Marks Clothing Co., 301 U.S. 58 (1937), McReynolds disagreed with the Court's holding that a small manufacturer fell under the federal government's jurisdiction because it belonged to an industry which was interstate in character. He felt the Court was allowing the government to invade the powers of the states.

From the above sample of cases, it is clear that Justice McReynolds authored some important opinions and dissents, all of them conservative in nature. That alone should not label him a failure. The verdict just might be proper if considering this ultra-conservatism with his inability to blend with the other justices in a body which is supposed to be collegial (reasonable people can differ reasonably, but an unreasonable person cannot) was the cause of his being rated a failure.

The third of the "Four Horsemen" to be called a failure was Pierce Butler, who served from 1922-1939. Butler, like McReynolds, was the epitome of ultra-conservatism, and that alone seems to be the reason for his rating. He did not author too many significant majority opinions, but he did write several dissents. Among his majority opinions was Terrace v. Thompson, 263 U.S. 1973 (1923), in which he upheld a state law prohibiting aliens who were ineligible for citizenship (mostly Japanese farmers, as these laws were passed by a number of Western states) from owning or leasing farmland. Another was Jay Burns Baking Co. v. Bryan, 264 U.S. 504(1924), in which he threw out a Nebraska law which had set standard weights for bread. Butler felt that since the law was a difficult one with which to practically comply, it was a violation of due process of law. Finally, in Weaver v. Palmer Bros. Co., 270 U.S. 402 (1926), he threw out a Pennsylvania law which forbade the use of a mix of old and new wool in the making of mattresses. Butler felt that the mixture could be disinfected and thus would not be unhealthy, making the law an arbitrary one and therefore a denial of due process of law.

Of more import were several of Justice Butler's dissents. In Olmstead v. United States, 279 U.S. 849 (1928), the Court ruled wiretapping constitutional since it was neither a search nor a seizure. The normally conservative Butler felt the majority guilty of misreading the Fourth Amendment, thinking that, had there been telephones at the time of its writing, wiretapping would have been included in the Fourth Amendment's restriction. In Near v. Minnesota, 283 U.S. 697 (1931), Butler led the Four Horsemen in dissent from a decision which threw out a law that allowed a state to stop the publication of newspapers printing items considered scandalous, malicious, defamatory, or obscene. Butler felt that such items did not deserve the protection of freedom of the press. In Powell v. Alabama, 287 U.S. 45(1932), the Court held that a state must allow a person counsel in criminal cases (this was one of the famous Scottsboro cases), but Butler, speaking for himself and McReynolds, did not see any due process of law violation in this case. In Senn v. Tile Layers Union, 301 U.S. 468 (1937), Butler again spoke for the Four Horsemen in their dissent from a decision upholding a Wisconsin law legalizing peaceful picketing. Although agreeing that picketing sometimes might be constitutional, Butler looked at the facts in this particular case and decided otherwise, for in this case the union had tried to stop the employer from laying tile in his own place. This, he concluded, was a denial of due process of law. Butler's final notable dissent was in Coleman v. Miller; 307 U.S. 433 (1939), in which the Court held that it is up to Congress as to what is a reasonable time for a state to ratify an amendment to the United States Constitution. Butler, speaking for himself and McReynolds, thought that the question was one that the courts could answer, and in this case he would have disallowed Kansas' ratification of the Child Labor Amendment (which never did get the requisite number of votes to be adopted as part of the Constitution).

It seems as if Justice Butler's rating as a failure was based entirely upon his conservative approach to cases before the Court. Perhaps he was insensitive to matters of civil liberties, but one wonders if that alone should be enough to brand him a failure as a justice.

After these three conservatives, the fourth justice in point of time to be called a failure was James F Byrnes. However, the one reason for that rating would seem to be the fact that Byrnes only served on the Court from 1941-42. It would be highly unlikely that anyone could make a mark on the Court in so brief a time. Surprisingly, he did manage to author one noteworthy opinion for the Court, and that was in the case of Edwards v. California, 314 U.S. 160 (1940). In it, a unanimous Court threw out a law which made it illegal to transport a person without money into the state. It was designed to halt the flow of "Okies" from the dust bowl, but Byrnes held the law to be an invasion of the federal government's power over interstate commerce. Although unanimous, four of the justices preferred a reason other than the one given by Byrnes. They felt the law abridged the privileges and immunities of United States citizenship, a violation of the Fourteenth Amendment.

Justice Byrnes, a close friend of President Franklin Roosevelt, accepted the position on the Court as a favor to him, and left in a year to take another job, also as a favor to Roosevelt. That he did not particularly like to be on the Court was known to many, but to call him a failure simply because of his short time on the Court seems quite unreasonable.
The next justice to be called a failure was Harold H. Burton, who was President Truman's first appointee and who served from 1945 -1958. The only apparent reason for his rating seems to be his mostly conservative stance and his small amount of opinions. His majority opinions included Henderson v. United States, 339 U.S. 816 (1950), in which he invalidated the practice of some Southern states of curtaining off a section of the dining car on railroads for the use of black persons. Burton found this to be in violation of the 1887 Interstate Commerce Act. Then came Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123 (1951), in which Burton struck down the Attorney General branding an organization as subversive in an arbitrary fashion. Justice Burton, being basically a conservative, did not invalidate President Truman's loyalty program. He merely felt that Truman's Executive Order did not authorize such an action. In Public Utilities Comm'n v. Pollak, 343 U.S. 451 (1952), Burton upheld the right of bus companies in the District of Columbia to play radio programs on their buses over the objection that it was an invasion of privacy and that it forced people to hear things against their will. (Burton's one exception here was if the companies were broadcasting government propaganda; that, he felt, would be a First Amendment violation). His other notable opinion was in Beilan v. Board of Educ., 357 U.S. 399 (1958), in which he upheld the firing of a Philadelphia teacher who had refused to answer questions both from his superintendent and before the House Un-American Activities Committee about Communist Party possible affiliation. Rather than being fired for disloyalty, he was fired for incompetence. Burton felt that the Board was justified in what it did and thus there was no violation of due process of law. Burton's only dissent of note came in Morgan v. Virginia, 328 U.S. 373 (1946), in which the Court threw out a Virginia law which mandated segregated interstate commerce buses. He felt that the states were best equipped to handle this issue, and that the majority opinion should also mean that all state laws which prohibited segregation by race in interstate commerce should also be invalidated due to the need for uniformity in interstate commerce.

It can be seen, therefore, that Justice Burton did not author a large number of formidable opinions, and that most, but not all, of those he did were conservative in nature, but that hardly calls for a rating of failure for his tenure on the Court.
The next justice to be called a failure was Chief Justice Fred M. Vinson, who served from 1946-1953. He is the only Chief Justice to be rated as such, and it seems to be based, once again, on his conservative opinions as well as his inability to unify his Court (a large number of 5-4 opinions occurred; these opinions, however, were on divisive issues and there were individuals on the Court who did not get along no matter who was Chief--Jackson and Black, for example).

Vinson 's first major opinion was in Shelley v. Kraemer; 334 U.S. 1(1948), in which he held that restrictive housing covenants, by which property owners (white) in a neighborhood would sign an agreement not to sell to blacks, were unenforceable in court, because if a court (being an arm of the state) upheld one of these covenants, it would mean that a state was giving blacks unequal protection of the laws, a violation of the Fourteenth Amendment. In American Communications Ass'n v. Douds, 339 U.S. 94 (1950), Vinson upheld a section of the Taft-Hartley Act which made officers of labor unions swear that they were not members of the Communist Party. He felt it a legitimate use of the federal power over interstate commerce to guard against strikes. Next came Sweatt v. Painter; 339 U.S. 629(1950), in which Vinson, speaking for a unanimous Court, ruled that a hastily created law school for blacks in Texas was not close to being equivalent to the University of Texas law school which would not allow blacks due to state law. Therefore, the state was guilty of a denial of equal protection of the laws. A similar case was McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950), and here Vinson ruled against Oklahoma's treatment of a black student who was in graduate school at the state university but was treated separately in that he had to sit in a special section of the class, have his own desk in the library and his own table in the dining hall, etc. Once more Vinson held this to be a denial of equal protection of the laws. In Feiner v. New York, 340 U.S. 315 (1951), Vinson upheld a breach of the peace conviction against a person who was addressing a crowd on the street and what he said disturbed the people (he was urging the blacks to stand up for their rights). Vinson felt that the police had acted properly to avoid an outbreak. In what was to be his last major opinion, and his most famous, Vinson upheld the Smith Act conviction of eleven leading members of the American Communist Party in Dennis v. United States, 341 U.S. 494 (1951). Vinson felt that the government had the right to move against subversive elements before it was too late and they had already begun their attempted takeover. Vinson 's only dissent of note occurred towards the end of his tenure, but it was an important one. The case was Youngstown Sheet and Tube Co. v. Sawyer; 343 U.S. 579 (1952), and in it the majority, including President Truman's appointees Burton and Tom Clark, ruled against the President's seizure of the steel industry to prevent a nationwide steel strike, holding that he did not possess the power to do so. Vinson disagreed, and in a dissent in which he was joined by another Truman appointee Sherman Minton as well as by Justice Reed, he argued that the president has the right to act when the country faces times of great crises, and with the conflict in Korea going on that was one of those times.

It would seem that the "experts" erred in ranking Fred Vinson as a failure. His decisions might have been on the conservative side except in the area of civil rights for blacks, and his Court was usually divided, but their ranking for him is not supported by the facts.

The next justice to be called a failure was the above-mentioned Sherman Minton, who served from 1949-1956. He joins Burton and Vinson in being Truman-appointed justices ranked as failures (only Clark escaped that fate--he was rated as "average"). Minton 's ranking might have more merit, as he wrote only one major opinion during his time on the Court, and even that was reversed fifteen years later. The case was Adler v. Board of Educ., 342 U.S. 485 (1952), and in it Minton upheld a New York law as constitutional which required the Board of Regents to publish a list, after due notice and hearing, of subversive organizations. Membership in any of those organizations afterwards meant disbarment of that person from teaching. Minton felt that there is no constitutional right to public employment, and that public school authorities must see to it that teachers are fit.

It would seem that Sherman Minton did little during his time on the Court, and he seemed to like practical politics more than he liked his time on the Court (he basically took the job as a favor to Truman, much like Byrnes and Roosevelt).
The last justice in point of time to be called a failure was Charles E. Whittaker, an Eisenhower appointee who served from 1957-1962. Unfortunately, he was never very comfortable on the Court, averaged even fewer opinions than had Van Devanter (and none of note), and retired to return to the corporate world.

In retrospect, it is harsh to label any one as a failure, and labeling anyone as anything is always subjective and arbitrary. When one looks at the record of these eight justices called failures, one must wonder at the criteria used by the evaluators. All were in this century, all were conservative. Does this, perhaps, show a liberal bias on the part of the evaluators, especially in behalf of both the New Deal and civil liberties? One must be careful when evaluating others not to inject one's own personal biases into the evaluation. However, since that is difficult to do (even the Justices themselves do it in deciding cases), perhaps the evaluation of justices by way of a rating system ought to be looked at with a jaundiced eye.