by Jack R. Johnson
Despite an adolescence filled with drunken debauchery, topped off with at least one attempted rape charge, Brett Kavanaugh may not be the worst Supreme Justice ever confirmed to that august institution. In fact, he may not even make the top five. Here, for your historical consideration, are the five worst justices in the Supreme Court’s history, based on their personal life, their legal decisions, and the overall negative impact their existence has had on our nation.
- Chief Justice Roger B. Taney
According to Ian Millhiser’s “Injustices: The Supreme Court’s History of Comforting the Comforted and Afflicting the Afflicted,” one of the worst Supreme Court justices ever was Chief Justice Roger B. Taney. It would be journalistic malpractice to exempt Taney from the list of poorest justices for one very important reason–he is the author of the worst decision ever handed down the by the U.S. Supreme Court: Dredd Scott.
Taney’s opinion seemed to be driven by a motivation to end the question of slavery once and for all — by ruling in favor of the shameful practice. In the opinion, he took an originalist approach to the question of whether Dred Scott became a free man once his “owners” brought him into a free state. The most quoted passage from the incredibly lengthy opinion? When discussing the founders’ view of “that unfortunate race,” Taney noted:
“They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.”
His opinion also invalidated the Missouri Compromise, even though the Court admitted that it had no jurisdiction to hear the case, since Scott was not a citizen. The ignominious ruling swept far beyond the question presented in that case to offer a philosophic defense of white supremacy and chattel slavery.
1) Justice Stephen Johnson Field
Next of our worst Supremes is Justice Stephen Johnson Field. On a personal ethical level, Field was probably worse than Taney, but his decisions were not as far reaching, nationally. As a sitting justice in 1880, Justice Stephen Johnson Field launched a dark horse bid for the Democratic Party’s presidential nomination. Claiming that “the chilling shadow of the empire” was descending upon the United States, Field fronted an anti-government campaign that, according to Millhiser, would “make all but the most strident modern day tea partiers blush.”
A rabid conservative, Field joined the Court’s pro-segregation decision in Plessy v. Ferguson, and he authored another opinion permitting former Confederate officials to practice law in federal court. Like modern day conservatives on the far right, he railed against anything smacking of government power to enact economic or business regulations. After Congress enacted a modest income tax on upper-income earners, Field complained that it was an “assault upon capital” which “will be but the stepping-stone to others, larger and more sweeping, till our political contests will become a war of the poor against the rich; a war constantly growing in intensity and bitterness.” A statement that sounds frighteningly prescient with regard to the anti social-safety net zealots in our current congress; and mildly insane with regard to everyone else.
2) Justice James Clark McReynolds
McReynolds was, in Time magazine’s words, “a savagely sarcastic, incredibly reactionary Puritan anti-Semite.” Additionally, McReynolds was just pure lazy. He often would not even open the briefs lawyers filed to prepare him to hear a case until hours before the case was argued, and he frequently spent just a few hours crafting opinions that would govern all other courts in the country. McReynolds was nasty. He labeled President Franklin Roosevelt “that crippled son-of-a-bitch . . . in the White House,” and shunned his own nephew after the boy woke him up by playing jazz music on the radio. McReynolds was a petty tyrant. He ordered his staff never to smoke tobacco even on their free time, and dictated where they were allowed to live. According to Millhiser, during his frequent duck hunting trips, Justice McReynolds would “bring along his longtime servant Harry Parker, and he would order Parker to wade through ice-cold water to retrieve the fallen animals in lieu of a bird dog.”
As you might guess, McReynolds was a raging sexist, and bigot. On the rare occasions when a woman argued a case before McReynolds’s Court, the justice would exclaim “I see the female is here” and walk out of the Courtroom. When Charles Hamilton Houston, the Harvard-educated black attorney argued before the Supreme Court, McReynolds turned his back on the Courtroom to signal his disapproval. McReynolds once warned one of his law clerks, who had grown close with Harry Parker, that the clerk “seem[ed] to forget that [Parker] is a negro.” He advised the clerk to “think of my wishes in this matter in your future relations with the darkies.”
After Justice Louis Brandeis, the first Jewish Supreme Court justice was confirmed, McReynolds refused to speak to him for three years. When McReynolds died in a hospital in 1946, some reports say that he had no friends or relatives nearby, and no Supreme Court justices attended his funeral.
- Justice Samuel Chase
It would be a major oversight not to include Justice Samuel Chase because he was the only Supreme Court justice to ever be impeached. Was he corrupt? Not really, but he was, according to the Professor Bernard Schwartz’s “A Book of Legal Lists,” a shamelessly partisan judge, who let his Federalist leanings openly influence his judicial decisions and conduct on the bench. He may very well be a harbinger of what we can expect from the unsolicited ramblings of Brett Kavanaugh. Chase would bemoan President Thomas Jefferson’s policies from the bench, and when he presided over trials brought under the Sedition Act of 1798, it was said that his “performance as a judge was almost indistinguishable from that of the prosecution.”
Chase’s partisan activities eventually led to his impeachment, although the Senate, mindful of the importance of an independent judiciary, voted to acquit the justice.
- Justice Clarence Thomas
Like Kavanaugh, Thomas was confirmed to the Supreme Court under the cloud of alleged unethical behavior. Unfortunately, his actions on the court have only served to confirm these original suspicions. His wife remains publically involved in deeply partisan conservatives causes; some of which have come before the Supreme Court, but Thomas has refused to recuse himself. In fact, seventy-four members of Congress signed a letter asking Justice Clarence Thomas to recuse himself from any ruling on the Affordable Care Act because of his wife’s work as a conservative activist and lobbyist, where she specifically agitated for the repeal of “Obamacare.”
He has also made a questionable decision not to report more than $500,000 in earnings from conservative groups which his wife earned. His response that “he didn’t understand how they were supposed to filed” is risible.
But even beyond these obvious ethical lapses, his legal decisions illuminate a distinctly partisan bias, coupled with pure laziness. He is the only current member of the Supreme Court who has explicitly embraced the reasoning of Lochner Era decisions striking down nationwide child labor laws and making similar attacks on federal power. Indeed, under the logic Thomas first laid out in a concurring opinion in United States v. Lopez, the federal minimum wage, overtime rules, anti-discrimination protections for workers, and even the national ban on whites-only lunch counters are all unconstitutional. These antiquated decisions don’t read as well thought out legal briefs, but rather, as if they are boiler plate recitations of the GOP stances on the American political landscapes.
In closing, remember that even though Brett Kavanaugh might be a vapidly partisan, overly privileged, alleged rapist wannabe, he will need to up his game if he wants to be one of the worst Justices on the United States Supreme Court. The competition is stiff. Although, we must admit, he appears to be off to a good start.