Updated: Dec 4, 2020
The widespread expression of hopes, fears and predictions about the forthcoming votes and opinions of Justice Amy Coney Barrett reflect a practice as old as the republic itself. Since the beginning, mere mention of a prospective nominee to the High Court has inspired advice, counsel and warnings from the four corners of the nation.
In 1812, Thomas Jefferson issued a stark warning to his friend, President James Madison, who contemplated the nomination to the Court of Joseph Story, a Harvard Law School professor and eminent scholar. “He will out-Marshall, John Marshall,” Jefferson wrote, hoping that the prospect of yet another justice with strong nationalist views would save Madison from making a grievous error.
Madison was convinced that Jefferson was wrong. Justice Story, acclaimed by scholars as one of the nation’s greatest jurists, formed a close partnership with Chief Justice Marshall, provoking laments and regrets from Madison.
President Harry Truman, not one to mince words, expressed deep disappointment of his appointment of Tom Clark to the Supreme Court. He described Justice Clark as that “damn fool from Texas,” and the “biggest mistake” of his presidency.
History teaches us that the expectations of Justice Barrett on matters of constitutional interpretation, interaction with other members of the Court, and how she values the independence of the judiciary in a polarized era, may be more complex than we think. In fact, history tells us that presidents frequently are disappointed with the decisions and opinions of their nominees, thus foiling the goal of shaping and influencing the Court.
President Theodore Roosevelt was beside himself when his nominee, Justice Oliver Wendell Holmes, two years after joining the Court, voted against the administration’s anti-trust policies. Roosevelt told a press conference that he “could carve out of a banana a Judge with more backbone than that.” President Franklin D. Roosevelt expected that Justice Felix Frankfurter would be a “flaming liberal, but turned out in many areas to be a rank conservative.”
President Dwight D. Eisenhower could relate to Truman’s disappointment in the performance of Justice Clark. Ike believed that his nomination of California Gov. Earl Warren would bring to the Court a reliable conservative. However, Chief Justice Warren proceeded to lead what scholars have described as the “Warren Court Revolution,” a roughly 15- year period in which the Court overturned numerous precedents, including landmark rulings involving civil rights and liberties. Eisenhower characterized the nomination of Warren to the bench, as “the biggest damn mistake” of his presidency. He harbored similar regrets about his appointment of Justice William Brennan, whom many regard as the intellectual leader of the Warren Court.
The list of presidential disappointments in the behavior of their judicial nominees is long, certainly long enough to cast a shadow of doubt over the expectations surrounding any newly minted member of the Court, including Justice Barrett. Richard Nixon felt betrayed by Justice Harry Blackmun, whom Nixon believed would be a consistent conservative, but over the course of his career, Blackmun seemed to move to the “left” and became a leader of the progressive wing of the Court. Blackmun disagreed with that assessment of his career, insisting in an interview that he “hadn’t moved to the left; the rest of the Court, rather, had moved to the right.”
Ronald Reagan hoped that his nomination of the conservative Arizona Republican, Justice Sandra Day O’Connor, would guarantee the fifth, and decisive, vote to overturn Roe v. Wade. Justice O’Connor never met that expectation, which led a frustrated Justice Antonin Scalia, to dismiss her as “irrational.” Reagan was likewise disappointed in Justice Anthony Kennedy, who voted to uphold Roe. Kennedy, of course, disappointed many conservatives for voting for same-sex-marriage and, more generally, for upholding equal protection of the law for the LGBT community. George H. W. Bush expressed disappointment in Justice David Souter for upholding Roe.
Presidential efforts to shape the Court’s jurisprudence, history reveals, often have been unavailing. As Chief Justice Rehnquist explained, “Neither the President nor the appointee can foresee what issues will come before the Court during the tenure of the appointees.” Rehnquist added that even if the nominee “agrees” with previous decisions that she “may well disagree as to future cases involving other questions when, as judges, they study briefs and hear arguments.”
America will learn, soon enough, whether expressions of hope or protests of fear surrounding Justice Barrett’s prospective opinions and decisions prevail. But let us watch closely and determine if, over time, she produces a record that pleases or disappoints her benefactor.
David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.