SCOTUS Justices -- Some Random Facts

In the course of working on a project on judicial biographies I came across the random fact that of 114 SCOTUS justices, only 18 have been from west of the Mississippi (with the potential addition of one or more of the three Minnesotans, depending on precisely where they lived). The first trans-Mississippian justice was Iowa's Samuel Miller, appointed by Lincoln in 1862, followed closely by California's Stephen Field in 1863. At the beginning of the 20th century there had only been four justices from west of the Mississippi, and they did not reach double digits until Earl Warren was appointed in 1953. The pace has since picked up a bit, with four of the last fifteen justices coming from California, Arizona, or Colorado (and seven of the last twenty eight from the trans-Mississippi West).

While we are on the subject, the first justice from west of the Appalachians was Kentucky's Thomas Todd in 1807, and the first from the former Northwest Territories was Ohio's John McLean in 1830. It was not until the Lincoln administration that there was more than a single sitting justice from the "West" (by any definition), and he appointed five: Miller (Iowa), Field (California), Noah Swayne (Ohio), David Davis (Illinois), and Salmon Chase (Ohio).

After the Civil War, the first justice from the former Confederacy was William Burnham Wood, appointed from Georgia by President Hayes in 1881. But Wood was a transplant from Ohio, and he had been a Union general during the war. The first true southerner was L.Q.C. Lamar of Mississippi -- a former Confederate officer and a drafter of Mississippi's ordinance of secession --  appointed by Grover Cleveland in 1888.

Among the many Federalists, Democrats, and Republicans, there was only one Whig justice, Benjamin Robbins Curtis of Boston, who dissented in the Dred Scott case and soon afterward resigned in protest. He was also the first justice with a law degree, from Harvard, of course (Robert Jackson was the last justice without one, with one year of law school and having read law with his uncle ). Curtis was one of only seven justices from Massachusetts, which seems like too few, given the existence of a "Massachusetts seat" in the early years of the Republic, until you realize that William Cushing and Joseph Story served for a successive 56 years (1789-1845). Most of the Massachusetts justices have been long-tenured, with a current combined total of 161 years and counting.

There have been 16 justice from New York (counting Thurgood Marshall, who had worked mostly from a New York office, and had served on the Second Circuit, but was solicitor general when appointed), including four at the same time (Scalia, Ginsburg, Sotomayor, and Kagan), and another five from New Jersey.

Of seventeen chief justices, nine were confirmed either unanimously or by acclamation, Earl Warren most recently. Warren had initially been a recess appointment, as was William Rutledge, appointed by George Washington as the second chief. Rutledge, however, was not confirmed, and served for only 138 days. Ten associate justices were initially recess appointments -- most recently William Brennan -- all of whom were subsequently confirmed.

There is necessarily some judgment involved here. William O. Douglas, for example, spent much of his youth in Washington State, but I did not include him as a westerner because his professional life, from which he was appointed to the Court, was in the East. I did include William Rehnquist, who was appointed while living in Virginia and working in Nixon's DOJ, because of his association with Arizona; I included Warren Burger among the three "potentials," even though he was appointed while living in Virginia and serving on the D.C. Circuit, because of his close association with Minnesota. This stuff ain't science.

Comments

[anon]

Interesting! What conclusions do you draw from this data?

[John Q. Barrett]

Thanks, Steve. Despite lore to the contrary, Robert H. Jackson did have a complete law school education. In Sept. 1911, he transferred into Albany Law School, a two-year LL.B. program, after an apprenticeship year, for which ALS gave him credit. In the 1911-12 academic year, Jackson took the courses and starred as an ALS “senior.” Then, in spring 1912, to his surprise, ALS denied him and two classmates their degrees, discriminating against their youth (they were not yet 21). In 1941, chagrined, ALS gave then-U.S. Attorney General Jackson his degree, retroactive to 1912. Details are in this article: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=744111.

BTW, I’m not sure if you counted Jackson as a New Yorker, which he became in boyhood. But he was born in Warren County, PA, in 1892, which was still wild then and had been officially “West” (as in the Western Reserve) when his ancestors settled there around 1800.

I’d count Douglas as a westerner, because he was born in MN. Plus that was how he styled himself. And being “western” was key to him getting western Senator support for his 1939 appointment.

The first Rutledge was John, not William.

Back to exam-grading. Best, John

[Steve L.]

Thanks for the corrections, John. My understanding was that Jackson received a "certificate of completion" rather than a diploma, but you would know better than I. Don't know how I got Rutledge's name wrong. Yes, I counted Jackson as New Yorker.

Douglas was a westerner in his youth, and thereafter by temperament, but he lived in the east -- New York (Columbia), Connecticut (Yale), and Washington (SEC) for most of his adult life before joining the Court, so I did not include him among the western justices. Okay, so I made the opposite call on Rehnquist. Like I said, it ain't science.

[Dave Garrow]

I would concur with John that WOD should be categorized as a Westerner. Just think of the title of his autobiography...

[Steve L.]

Adding Douglas to the westerners only changes the total to 19 from 18, so the imbalance remains. To this day, there have been only two justices from California, despite its growing dominance in national politics.

But let me point out that the title of WOD's autobiography is Go East *Young* Man, which is precisely what happened. Douglas went east in his early 20s and pretty much stayed there -- Columbia, Yale, SEC -- until he was named to the Court.