10 Most Divisive Supreme Court Justices in History

By Brandon Christensen  |   Real Clear History

On Sept. 26, 1789, all six of George Washington’s nominations for Supreme Court justices were confirmed by the United States Senate, which marked the beginning of the judicial branch of the newly implemented federal government.

While the judicial branch is supposed to be the least democratic and least political of the branches of government, an element of democracy still influences the courts and controversy has followed the judiciary since its founding in 1789.

In honor of divisive politics, a feature of the American system, here are the 10 most divisive Supreme Court justices in American history:

Brandeisl.jpg10. Louis Brandeis (1916-39). The first Jew to sit on the Supreme Court, Brandeis courted controversy due not only to his ethnic heritage (anti-Semitism in the United States was rife during his lifetime), but also because of his activism in the name of progressive causes. Brandeis went after railroad companies and fought for labor protections. He was a proponent of Zionism and of American entry into World War I. It is perhaps not surprising that Brandeis was nominated to the Supreme Court by Woodrow Wilson. So hostile was the reception to Brandeis’ nomination to the Court that, for the first time in American history, a public hearing was convened. Brandeis represented progressive politics for more than two decades on the court, and was instrumental in laying the groundwork for not only more protections for free speech, but also the creation of the Federal Reserve banking system (viewed then as a necessary correction to the inequality that had been produced by “unregulated” banking) and the federalization of wage and labor protections.

Roger B. Taney - Brady-Handy.jpg9. Roger Taney (1836-64). Taney rose up the political ranks as Andrew Jackson’s right-hand man. Jackson tried to get him on the Supreme Court in 1835 but his nomination was rejected by anti-Jacksonian Whigs in the Senate. After the Whigs were swept away in the 1836 election campaign, Jackson renominated Taney, but this time for the position of Chief Justice, and he was confirmed 21-15 after a bitter debate in the Senate. The Taney court is responsible for the Dred Scott case that tore the fledgling republic apart, and for helping Jackson abolish the national bank. Taney and Lincoln clashed often, too, as Taney ruled that Lincoln’s suspension of habeas corpus was unconstitutional, but Taney never did go home during the Civil War and served out his term as Chief Justice until his death in 1864. He holds the second-longest tenure of any Chief Justice.

Clarence Thomas official SCOTUS portrait.jpg8. Clarence Thomas (1991-present). Clarence Thomas, the most conservative member of the court today, is well known for the hostile hearing he had to go through in order to be a Supreme Court justice. Check out this 1991 essay in the New York Times on his hearing [https://www.nytimes.com/1991/10/20/opinion/op-ed-race-gender-and-liberal-fallacies.html]. The second African-American to sit on the Supreme Court, Thomas is a quiet, towering figure who has been known to break with established orthodoxy if he thinks such orthodoxy goes against the constitution. Nothing could be more divisive than a man of principle sitting on the world’s most powerful bench.

Thomas Todd SCOTUS.jpg7. Thomas Todd (1807-26). Thomas Todd was appointed to the Supreme Court by Thomas Jefferson and has been labelled as the most insignificant justice in the history of the court. Not exactly divisive, but still, that’s got to hurt.

John Rutledge.jpg6. John Rutledge (1795). An original member of Washington’s inaugural Supreme Court, Rutledge stepped down from his position as a federal justice in order to serve as the Chief Justice of the State of South Carolina. In the early days of the republic, a spot on the federal Supreme Court was not as prestigious or important as a position in one’s home state. John Jay, for example, was America’s first Chief Justice, and he resigned his position in order to be governor of New York. Rutledge was selected by Washington to replace Jay as Chief Justice of the federal court, but a controversial speech attacking the recently-signed Jay Treaty with Great Britain doomed his appointment. (Remember that in 1795 there was a north-south split along geopolitical lines, as southerners wanted closer ties with France, and northerners wanted closer ties with Great Britain.) Rutledge became the first, and only, Supreme Court justice to be removed involuntarily by a Senate intervention. His short tenure was also the first time the Senate rejected a SCOTUS appointment. After a failed suicide attempt, Rutledge retired from the public eye and died on his plantation in 1800.

JudgeJMHarlan.jpg5. John Marshall Harlan (1877-1911). Not to be confused with his grandson, who bore his name and sat in his seat on the Supreme Court a generation later, John Marshall Harlan came to be known as the “Great Dissenter” during his 30-plus years on the Supreme Court. Appointed by Rutherford B. Hayes, Harlan was all over the map politically and ideologically. He was a member of six distinct political parties (in order): Whig, Know-Nothing, Opposition, Constitutional Union, Democrat and, finally, Republican. He opposed the secession of the slave states and also the Emancipation Proclamation, and fought for both equal rights for black Americans and the constitutionality of anti-miscegenation laws. Harlan was on the court for the notorious 1896 “separate but equal” decision that allowed Southern states to re-segregate black and white citizens, and he was the “1” in the 7-1 decision, arguing that segregation placed a “badge of servitude” on African-Americans. Harlan was simultaneously an anti-imperialist and anti-immigrant (and was especially harsh towards Chinese immigration), and his dissents in numerous cases involving territorial acquisition and complex issues of citizenship could easily be applied to any number of problems confronting the United States today.

Samuel Alito official photo.jpg4. Samuel Alito (2006-present). While it may seem ridiculous to put two sitting justices on this list, Alito’s place here is most assured, suggesting that Americans today really do live in one of the more divisive times in the republic’s history. This also suggests that the rule of law is currently robust, as Lincoln, Jackson, and FDR all went to extralegal lengths to achieve their goals, while Bush II, Obama, and Trump are relatively benign. Alito is one of the Court’s conservative members and usually votes that way.

NClifford.jpg3. Nathan Clifford (1858-81). Clifford was a New Hampshire “doughface,” a northerner with southern interests, who was confirmed with a 26-23 vote in 1858. His “southern interests” were actually more about interpreting the constitution in the most Madisonian way possible, which meant he often sided with Southerners when it came to legal cases about slavery. Clifford’s most notorious ruling is perhaps the one where he reasoned that “equality is not identity” in regards to a black woman sitting in a white part of a steamship. This laid the groundwork for the “separate but equal” doctrine that divided the country for generations after the Civil War. Clifford also abused the lifelong tenure of the court to stay on much longer than he needed to. In his mid 70s one of his colleagues on the court referred to him as a “babbling idiot” due to his old age, and a stroke further limited his ability to judge. However, he thought if he could hang on a little longer a Democrat might be voted into the office of presidency and then he could relinquish his position. Instead, he died in 1881 and Republican Chester A. Arthur put a GOP loyalist in his spot.

Thomas Stanley Matthews - Brady-Handy.jpg2. Stanley Matthews (1881-89). Matthews survived the narrowest Senate confirmation in American history when Senators voted 24-23 to confirm him. Matthews’ tense confirmation centered around a few different points of contention: Rutherford B. Hayes, a very unpopular president who was suspected of vote-rigging, first floated his name to the Senate and Matthews was not even considered by the senators. Then, James A. Garfield chose Matthews when he came to office a few short months later (both presidents were from Ohio, Matthews’ home state). To top it all off, Matthews, as attorney general, prosecuted an Ohioan for helping fugitive slaves, even though Matthews claimed to be an abolitionist. For senators in Reconstruction America, this kind of political expediency was a bridge too far.

HugoLaFayetteBlack.jpg1. Hugo Black (1937-71). Of all FDR’s SCOTUS appointees, Hugo Black was the worst of them, though of course any one of them could easily make this list. Black was a member of the Ku Klux Klan and an ardent New Dealer. Black was one of FDR’s court-packing picks who immediately began picking apart the due process protections upheld by the anti-New Deal court. Black was one of nine SCOTUS justices appointed by FDR, and he outlasted all of them save for one. During Black’s tenure, the wave of Progressivism and New Dealerism continued largely unabated, some of it good, some of it bad, but all of it divisive.

Further thoughts

Lucius Quintus Cincinnatus Lamar II - Brady-Handy.jpg

Lucius Quintus Cincinnatus Lamar II

How about this name: Lucius Quintus Cincinnatus Lamar II? He wasn’t a Roman senator, but rather one of the United States’ Supreme Court justices, and the first southerner to be appointed to the Supreme Court after the Civil War. To date, Lamar remains the only person from Mississippi to serve on the Supreme Court.

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