Not long after John F. Kennedy moved into the White House, the new president found himself with a vacancy to fill on the Supreme Court.
On March 30, 1962, Kennedy nominated Byron White for that spot; and just 12 days later, by a simple voice vote, the Senate confirmed JFK’s choice. Speaking of White (the first and to date the last Coloradan on the Supreme Court), the president quite correctly said of the Fort Collins native who grew up in Wellington, “His character, experience and intellectual force qualify him superbly for service on the Nation’s highest tribunal He has excelled in everything he has attempted.”
Of course, while White’s impressive résumé included leading the University of Colorado football team to an undefeated season in 1937 and a Hall of Fame professional career with the Pittsburg Steelers and the Detroit Lions, it contained no hint whatsoever of judicial experience. The only bench he knew before becoming a Supreme Court justice at the age of 45 had to do with sports, not the law. Now, there may have been newspapers in Colorado back then questioning White’s blank slate on this front. After all, as a recent editorial in this newspaper asked concerning the nomination of Elena Kagan to the Court: “Great mind, but is she qualified?”
The problem, it seems, is that her impressive experience “does not include her ever having been a judge – a gaping hole for someone who now aspires to be a high court justice.” Unfortunately for this argument, the “gaping hole” theory highlighted has no validity whether one is talking about Kagan, White, who served on the Court until 1993, or Chief Justice William Rehnquist – all three of whom were named to Court from positions in the Justice Department. In fact, the evidence that we have tends to support a quite opposite conclusion: that if you want a potentially great justice then find someone who has never been a judge.
Over the years, numerous ratings of Supreme Court justices have appeared. There is, not surprisingly, some variation when it comes to where a justice shows up in the rankings. At the same time, however, there is considerable consensus as to which members of the Court fall into the category of being great. When you refer to the core list of the 12 great justices, you discover that 10 of the 12 (that’s 83.3 per cent) spent no time on the legal bench prior to joining the Court.
On that list of great justices (including chief justices) who had never been a judge, there are names ranging from John Marshall, John Marshall Harlan I and Earl Warren to Felix Frankfurter, Louis Brandeis, Hugo Black and Joseph Story (who, like William Johnson, joined the Court when he was 32-years old). If you want to find previous judicial experience, then you need to look at the list of below-average justices and outright failures on the Court rather than the roster of its leading lights.
Should you find this strange, all you have to do is recall Chief Justice Marshall’s words in the 1819 case McCulloch v. Maryland. “In considering this question, then, we must never forget,” the man still called The Great Chief Justice noted, “that it is a constitution we are expounding a constitution intended to endure for the ages to come, and, consequently, to be adapted to the various crises of human affair.”
That is the fundamental truth that has enabled our constitutional system to endure. The Constitution is not a narrow statute to be interpreted by narrow minds, but rather a framework in our ongoing search for principled and practical answers to the most challenging questions of governance. And when it comes to judging the document, the lack of previous judicial experience is anything but “a gaping hole.”
Norman Provizer is a professor of political science at Metro State where he teaches Constitutional Law. He is co-editor of Leaders of the Pack: Polls and Case Studies of Great Supreme Court Justices and Great Justices of the U.S. Supreme Court. EDITOR’S NOTE: This is an online-only column and has not been edited.
