44. Eisenhower, Vinson, and Warren

The last Chief Justice appointed by a Democratic President died unexpectedly 70 years ago last Friday. What happened next had monumental ramifications for the Court—and the country

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

Every Monday morning, I’ll be offering an update on goings-on at the Court; a longer introduction to the Court’s history, current work, or key players; and some Court-related trivia. If you’re enjoying the newsletter, I hope that you’ll consider sharing it with your networks (and subscribing if you don’t already):

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On the Docket

The Court made a decent amount of news last week, including an otherwise housekeeping-heavy Order List that included a four-page “statement” from Justice Alito about why he was not going to recuse from a case in which one of the lead lawyers is also one of his regular “interviewers” in the Wall Street Journal. My own view, for what it’s worth (and hey, you subscribed!) is that Alito is ultimately correct that his recusal is not required here, but his statement doesn’t actually engage with the real argument for recusal—which has as much to do with the substance of his interviews with Rivkin as with their existence. Put another way, contra Alito’s statement, the issue is not that the justice gave an interview to a lawyer with business before the Court. It’s that he gave two politically charged interviews to a lawyer who has a politically charged case before the Court (and is also in the middle of another political imbroglio involving the Court, representing Leonard Leo before the Senate Judiciary Committee). That’s not a conflict requiring recusal in my book, but it’s also not a great look for the Court (or Alito).

The Court also released the November argument calendar, the centerpiece of which is almost certainly Rahimi—the major Second Amendment case that, among other things, I wrote about back in February. More generally, the real point to flag is that the Court is hearing only seven arguments across six argument days, meaning that five argument slots are “open” (and that’s without regard to the afternoon argument slot, which the Court has used in the not-so-distant past to hold three arguments in day). The justices aren’t remotely close to done filling their calendar for the upcoming Term, but here’s a pretty significant data point for how empty at least the front half of it is.

Speaking of, I also wanted to flag three cert. petitions filed on Friday. The first two are petitions from the federal government and Danco Laboratories in the mifepristone case, asking the justices to take up the Fifth Circuit’s merits ruling from last month (Chris Geidner has more on them here). Notably, these petitions were filed well ahead of their deadline—reflecting the government’s and Danco’s hope that the Court will take up and resolve the case during its upcoming Term, i.e., by June 2024. (Without expediting the briefing, the effective deadline for granting a case and hearing it in the same Term is for the cert.-stage briefing, including any response, to be complete by mid-January.)

I’m biased about the third one, captioned Martinez v. United States, because I’m counsel of record for the petitioners. In a nutshell, the petition is about the justices’ 2020 ruling in Ramos v. Louisiana, which held that criminal defendants in state courts (and not just federal courts) have a constitutional right to have any conviction be unanimous. The only criminal courts left in the country that permit non-unanimous convictions are military courts. And on behalf of 16 servicemembers appealing their convictions by court-martial, we’re asking the Court to resolve whether that practice survives Ramos. In June, the Court of Appeals for the Armed Forces said “yes.” We disagree, but also argue that it’s incumbent upon the Court to resolve the matter one way or the other.

There’s nothing obvious on the Court’s public radar for the upcoming week; the “Long Conference” (at which the justices consider all of the cert. petitions and other miscellaneous matters that have piled up over the summer) is two weeks from tomorrow, with the beginning of the October 2023 Term coming the following Monday.

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The One First Long Read: The Death of Chief Justice Vinson

The topic for this week’s “Long Read” was prompted by last Friday’s macabre anniversary—the 70th anniversary of the sudden death, at the age of 63, of Chief Justice Fred Vinson, on the eve of the Court’s (monumental) October 1953 Term. Although a number of justices have died in office (see the trivia from the January 16 issue), Vinson’s death has long stood out as an especially visible history-altering moment for the Court, perhaps in part because of Justice Frankfurter’s schadenfreude-y quip that it was “the first solid piece of evidence I’ve ever had that there really is a God.”¹

Chief Justice Vinson swearing in President Eisenhower on January 20, 1953

Frankfurter was responding, at least in part, to lingering resentment over the Court’s messy disposition of the last-minute attempts by Julius and Ethel Rosenberg to block their executions, a mess he blamed largely on Vinson. (As Professor Brad Snyder notes in his fantastic new Frankfurter biography, Vinson’s much-belated separate opinion in Rosenberg was his last on the Court.) But Frankfurter was also focused on the desegregation cases, which had been initially argued in December 1952. When no clear consensus emerged at Conference, he had persuaded his colleagues to order the cases to be held over and re-argued during the October 1953 Term, and those arguments were fast approaching by September.

There’s quite a lot of debate (nicely summarized in Professor Carlton Larson’s counterfactual take on what would have happened if Vinson hadn’t died) about whether Vinson, a native Kentuckian (and Southern Democrat) would have voted to desegregate public schools. Larson makes a persuasive case that Vinson might well have ended up so voting; the issue is whether he also would have been able to produce a unanimous decision in which all nine justices spoke with one voice—an aspect of Brown that has long been viewed as very significant to its public acceptance. Larson thinks it’s more likely than not; I’m less persuaded. The Rosenberg episode (and others) had left many both inside and outside the Court skeptical of Vinson’s ability to persuade his colleagues of much of anything.

We’ll never know, of course. But part of the story is not just Vinson’s untimely demise; it’s who replaced him. On October 2, President Eisenhower, making his first appointment to the Court since taking office in January, named California Governor Earl Warren as the Court’s 14th Chief Justice. Warren had been Governor Thomas Dewey’s running mate in 1948 when Dewey didn’t defeat Truman, and had thrown his own hat into the ring for the 1952 Republican presidential nomination. But Warren finished a distant third behind Eisenhower and Robert A. Taft. There’s at least some suggestion in various biographies that Warren threw his support behind Eisenhower at the 1952 Republican nominating convention (and worked thereafter to vigorously support the Eisenhower/Nixon ticket) in exchange for Eisenhower’s promise to appoint Warren to “the first seat” that opened on the Supreme Court. Whatever Eisenhower said or understood, Warren, at least, believed that he had been promised the seat. And 24 days after Vinson’s death, Eisenhower obliged.

So it was that Earl Warren, a liberal Republican from California, ended up taking over the Court’s middle seat while the Court was in the midst of deciding one of the most significant cases in its history. And the rest is just that. Warren worked feverishly behind the scenes to forge consensus in Brown, and was the author of the unanimous opinion for the Court holding that “separate is inherently unequal.” Thus was born the “Warren Court,” over which Warren would preside until resigning in 1969.

There’s a lot to take away from the Vinson/Eisenhower/Warren episode (and forests have been felled toward that end). For me, it stands out as a powerful reminder of three related points: First, that the Court’s fate (and, increasingly, the country’s) often turns on accidents of history instead of careful constitutional (or institutional) design. Second, that there’s a telling distinction between charges that the Court is political and charges that it is partisan. Warren was a liberal Republican appointed to the Court by a moderate Republican President who ended up presiding over (and helping to spearhead) the most liberal era in the Court’s history, and was able to do so at least in part by replacing the last Chief Justice (to this day) appointed by a Democratic President. The Court has always been political; but it sure seems to have helped promote public acceptance of its controversial rulings that the justices’ views didn’t so closely align with the policy preferences of the party of the President who appointed them.

Third, Warren’s effectiveness as Chief Justice had at least as much to do with his political acumen as with his beliefs—in an age in which a number of the justices had, at some point in their lives, held elected office. (Ironically, that included Vinson, who had served in the House of Representatives and had also been approached by President Truman about seeking the 1952 Democratic presidential nomination.) Say what you will about politicians, but there’s certainly at least some value in having judges with first-hand exposure to the political branches and the electoral process—not just to inform how they approach the substance of judicial decisionmaking, but also how they approach the institutional relationships that shape that process. Today, in contrast, it’s been 17 years since even a single justice had held elected office in a legislative or executive position (Justice O’Connor), and 14 years since a justice had been elected to any governmental office (Justice Souter).

Food for thought.

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SCOTUS Trivia: Recess Appointments and Article III

As noted above, President Eisenhower initially used a “recess appointment” to name Chief Justice Warren to the Supreme Court—because the Senate had adjourned its first session sine die on August 3, 1953, and was not expected to be back until the second session of the 83rd Congress began the following January. (The Constitution authorizes the president to unilaterally fill vacancies during such recesses through appointments that expire at the end of the next congressional session.)

To that point in the Court’s history, recess appointments of justices were unusual, but not unheard of (Warren was the tenth justice to be so appointed). But like recess appointments of lower federal court judges, they raise a strange constitutional problem: Article III guarantees that justices (and judges) shall hold their office during “good behavior.” But recess appointments expire at the end of the next congressional session. So what happens if a recess-appointed justice has not been formally nominated by the President and confirmed by the Senate before that deadline? Does their commission expire?

Based on the only case in which it ever happened to a justice—the Senate’s rejection of Chief Justice John Rutledge’s nomination in 1795—the answer is almost certainly “yes.”² Rutledge, who had been one of the original associate justices but resigned in 1791 to take over one of South Carolina’s intermediate state courts, was recess-appointed by President Washington in mid-1795 to succeed Chief Justice John Jay. But before the Senate came back that December, Rutledge gave a speech forcefully denouncing the Jay Treaty—which did not exactly sit well with his would-be confirmers. Instead, his nomination went down to defeat, 14-10—the first time the Senate rejected a Supreme Court nomination.³ Rutledge arguably could have continued to serve until the Senate session expired the following June, but he resigned on December 28, 1795.

Warren was the first of three justices President Eisenhower initially appointed through a recess appointment, along with Justice William Brennan and Justice Potter Stewart. But Stewart was the last justice to be so appointed (in October 1958), and the practice has also petered out with respect to lower-court judges. A lot of that may be because of the declining frequency (and length) of Senate recesses; but at least some of it may also be more prudential—the Senate in 1960 adopted a sense of the Senate resolution suggesting that the practice, to whatever extent it was constitutional notwithstanding Article III’s Good Behavior Clause, was just not a good idea.

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1. Even Frankfurter’s public statement about Vinson’s death dripped with indecorous snark, providing only that “Chief Justice Vinson’s death comes as a great shock to me.”

2. Rutledge is the only recess-appointed justice whose nomination was rejected by the Senate, but there have been a number of recess-appointed lower-court judges whose nominations were either formally rejected by the Senate or left to expire without approval—most recently Judge Charles Pickering’s recess appointment to the Fifth Circuit in 2004.

3. The Senate would not reject a Cabinet nominee until 1834—when it voted 28-18 to reject President Andrew Jackson’s nominee to be Secretary of the Treasury, Roger Brooke Taney. Now that’s trivia.