Judging and Personality: What Does a Judge’s Biography Tell Us?
Justice Stevens modeled for cupid sculptures... Justice Douglas’ mother told her son he was no good… Not only was Justice Scalia an only child, he was the only offspring of his generation.
What difference do these – or any of the other biographical facts that make up a judge’s life – have to do with what kind a job he or she does on the High Court?
To address this question, the NYU Law Forum invited nationally prominent journalists, Joan Biskupic and Jeffrey Rosen, both of whom have written judicial biographies, and NYU Law Professor and former Supreme Court Law Clerk, Norman Dorsen to a Forum Conversation moderated by Vice Dean, Professor of Law and Author, Barry Friedman.
Joan Biskupic: How much does a Judge’s biography influence his or her judicical opinions? It’s not determinative in my mind, but it’s influential.
Let me mention a few things about Justice Scalia. As some of you know, he grew up in a first generation Sicilian home. His father came here from Palermo when he was 15 and did not know any English when he arrived. He was reluctant to speak with anyone until he had mastered the language. But he mastered it so well, he went on to get a PhD at Columbia in Romance Languages and taught at Brooklyn College for thirty years. Justice Scalia’s mother was quite a student herself though she only finished high school. Justice Scalia was an only child, born seven years into the marriage And, not only was he an only child, he was an only child he was the only offspring of his generation. You can imagine that this only child who had no cousins quickly became the center of attention. I think you see that even today.
Having come from a family that placed strong emphasis on excellence, Scalia went to Xavier Military School, an all boys school. He graduated first in his class there, and then graduated first in his class from Georgetown and went onto Harvard Law School.
His father was quite studious, always had his nose in a book and didn't abide any silliness. His mother's family, on the other side, was a great family of story tellers -- the patriarch in that family actually ran off with a woman, left Trenton where Scalia was growing up, ran off with the woman from New York and Scalia's surviving aunt and some of his kids and wife told me that there was a lot of tension between the two core families. The point is here's a man who -- in his daily personal life -- feels quite comfortable with tension and actually generates it quite often.
On the professional side, Scalia’s judicial opinions reflect much of his Executive Branch experience -- and his hostility towards Congress.
Scalia cut his teeth in Washington in the Ford and Nixon administrations in the Watergate Era. I found this great letter from the then Deputy Attorney General Larry Silverman. It was written to his son who, we now know as DC Circuit Judge Silverman, a few weeks before the indictment of Nixon's top aids in 1974. The letter says, "People high in the administration and high in the White House staff seem to be frantically looking to get out." Well, of course they were all worried about going down with the ship! But here's a 38 year old Scalia yearning to move up to a position of more responsibility. Fortunately for him, he got the position of Assistant to Attorney General spot for the Office of Legal Council just as Nixon was leaving. He ended up actually being confirmed by the Senate on Gerald Ford's watch in August of 1974. As you all remember, Nixon had to resign on August 8, 1974.
Scalia’s first assignment involved the question of who owns the Watergate tapes and other materials that were from the secret taping system and, again, he wrote a memo that favored the executive. Congress reversed this. At this critical post-Watergate time, there was a lot of struggle between the Executive and Legislative Branch. Scalia was a happy spokesman for the Administration and happily testified before the late Father Robert Drinan, the late Senator Edmund Muskie, in favor of Executive privilege. I think we definitely see traces of his early support for a strong executive it in his opinions now.
This post-Watergate era really matched the kind of person Scalia was then, and is now. His political savvy, natural combativeness and allegiance to the Executive were ideally suited for this time. And his authoritarian on the bench rooted in this rule oriented father who, as I said, taught Romance languages but also was a textualist who did a lot of translations and in keeping with his upbringing fostered this concern for the erosion of the Executive Branch and encroachments on the Presidency. When I went back and read what he wrote in his concurring opinion in Citizens United, I saw a certain attitude toward Congress that has emerged in many of his opinions.
Jeffrey Rosen: Personality matters, but it is hard to describe exactly how it matters. Joan identified two different aspects of personality. I want to argue that life experience is important but ultimately it’s less important than your relationship with your mommy and daddy.
So, here’s the argument—and this is a new argument by the way, so I’m happy to abandon it—lets think about Justice Stevens for a moment. I had the pleasure, the honor, of interviewing him in 2007 and was struck by the degree to which his life experience influenced some simple aspects of his judicial philosophy.
Stevens was appointed to the Court because he was the lead investigator in a corruption case in Chicago in 1969. The case involved a Judge alleged to have thrown a case in exchange for a bribe. Based on this experience, Stevens began to believe in the importance of government neutrality. If you look at his decisions, this belief in the importance of government neutrality connects his decisions on arts and gerrymandering, voting rights, and Clinton vs. Jones.
Another central experience in his life involves his having grown up as the son of the owner of the Stevens Hotel, one of the fanciest hotels in Chicago. There are bronze statues in the Stevens, which is now a Hilton, of cupids and they’re modeled on Stevens and his younger brother. Very fine looking statues, they are.
Stevens experienced a big trauma in his early years. His father, who he loved, was accused of corruption and was convicted. The conviction was overturned on the grounds that it was without merit. But Stevens took from that experience a fear about the way that the criminal justice system can go wrong, a concern about the unjustly accused, and, as a result, has voted for criminal defendants more than any other judge on the Rehnquist and Robert Court.
A final life experience that very much influenced Stevens was his service in World War II. He was a code breaker. He analyzed intercepted messages suggesting General Yamamoto flight patterns, and, as a result Yamamoto was assassinated Stevens knew of Yamamoto, who was friends with many American officers and he felt that there was a great difference between a targeted, premeditative assassination and a trial in which people might or might not be convicted. As a result, he became much more skeptical about the death penalty and concerned about fair procedures and he traces that concern back to that experience.
So there are three was in which Stevens’ life experiences influenced his judicial philosophy. But not everyone reacts to life experiences in the same way.
Think about war service—on the one hand you have people like Chief Justice Marshall, for him the war was central to his life, like Justice Stevens he said, “After war I came to see America as my country, my Congress and my government.” By contrast, there are other Justices who served in war and took a very different lesson from it. William O. Douglas served in the kind of ROTC camp briefly, but long enough to get buried in Arlington Cemetery. Far from being a sort-of patriot in the Stevens-Marshall mode, he was a narcissistic self-centered Justice who spent most of his time running for President. He wanted to be President, as his friend Tommy Corcoran said “more than Don Quixote wanted Dulcinea”. And he kept running. Why did he keep running for president in a way that undermined his Judicial decisions—and Norman I know you’re going to defend him, I’m being mean here—but Douglas was more concerned about his political ambitions than about the Court. Well, this came from this Oedipal ritual that he had with his mother who sat him down before he went to bed every night when he was young and told him he could never be as good as his father, but, might be as smart; then she recited a Scottish poem and told him he had to be President. Hello! Calling Dr. Freud!
So what does this mean about the next Justice? Obama said he wanted someone with political savvy. The nominee doesn’t have to be a politician but someone who can win over Kennedy and operate well behind the scenes. There are different kinds of politicians; some are more successful than other based partly on their upbringing and temperaments. There are failed politicians like Salmon Chase or Fred Vinson who were flawed because of their personality conflicts. Chase was always running for President and Vinson was too much of a crony of Truman. Or successful politicians like Warren and O’Conner who really took from their legislative experiences the ability to get along with people and bring the different sides together. For these reasons, I hope that all the people busily vetting the next Justice look not only at their plans, personal lives, marital histories, and all the big issues that arise during confirmation hearings, but also look very closely at their relationship with mommy and daddy.
Norman Dorsen: I’ve written about several Supreme Court Justices, including my former boss, Justice Harlan, Chief Justice Wong, Justices Black, Douglas and Brennan. My interest in the subject got serious when a former colleague and I organized a national conference on judicial biographies in May 1995. It was a large conference and many prominent biographers of Supreme Court Justices were present.
Then something happened which can only be described as a Godsend to conference organizers. Judge Richard Posner, who had written a small book about Justice Cardozo, was the first scheduled speaker. He took the occasion not to praise, but to condemn the judicial biography. He thoroughly trashed the entire genre. And in particular he rejected its usefulness in understanding the Justices and the Supreme Court. He began by dividing all biography -- including the judicial biography -- into four categories: those that cater to curiosity; those that are designed to debunk or glorify a person; those that he called scientific, by such-and-such a person, did so-and-so; and finally essentialist biographies which seek to reveal the inner or true person that is the essential self. He then went on to suggest that there were enormous, and in his view, usually insurmountable obstacles to biography in general.
Among other things he said, “Ideological biographies have an uneasy relation to truth. Essentialist biographies are incoherent because the essential self is a fiction—even if there is an essential self, it is far from clear that it generates whatever amount of subject interests us or insight into the subjects work product. And finally, like history, biography is plagued by the hindsight problem. We know how things have turned out, how our life has turned out, but we have no possible knowledge of how they would have turned out if something had been different.”
Posner went on to assert that the general problems of biography also exist in judicial biography and that there are additional problems that exist there.
1) Judicial biographies have a tendency to morph into histories of the Supreme Court.
2) Few Justices have had interesting lives.
Posner said that Oliver Wendell Holmes was the conspicuous exception. Most biographers are devoted to applauding the subject’s judicial philosophy. Most judicial biographies are written by and for lawyers who tend to be unduly deferential to judges. Lawyers are not usually trained or experienced to write a good biography. And finally, judicial biographies are typically costly because the authors could have written many useful law review articles and course studies over the same time.
Posner’s talk naturally made the conference a smashing success. Most vigorously disputed him, a few supported him or raised questions. Those who opposed him gave several examples of consistencies between a Justice’s life and his judicial views: Justice Lewis Brandies co-authored a leading article on the right to privacy in 1890 and as a Justice he wrote strong Fourth Amendment opinions glorifying the importance of personal privacy, although a different aspect of the right than his article discussed. Justice Felix Frankfurter is famous for philosophy of judicial restraint, he took activist liberal positions on academic freedom, he had been a law professor for most of his career, on the establishment laws supporting separation of church and state. As a Jew he was sensitive to the power and influence of the dominate Christian Religion, and on privacy as a disciple and close friend of Brandeis. Justice Tom Clark, a former U.S. Attorney General, almost always supported the U.S. government’s position, rather the case involved anti-trust law, national security, criminal law or something else. Justice Sandra Day O’Conner, a former State Legislator and State Judge, aggressively favored States in federalism cases although Bush v. Gore is a notable exception. And although for the first twenty years on the Court she was an experienced, extremely reliable member of the conservative block, led first by Chief Justice Burger and then by Chief Justice Rehnquist, she almost invariably supported the rights of women during this entire period.
But the evidence is not all on one side. Here are a few contrary examples of Justices who departed in later live from their earlier selves: Justice Hugo Black was a member of the Alabama Ku Klux Klan in the 1920s, now he became a—and maybe the—leading advocate for civil rights as a judge. Justice William O. Douglas was raised poor and had to overcome physical problems as a boy to out door exercise. During his judicial career, he strongly favored the rights of poor people and environmental causes. Justice Robert Jackson was a former Attorney General. Both he and former Attorney General Tom Clark were very close to their Presidents Roosevelt and Truman, who appointed Clark, and in that role supported broad Presidential power. Within a crucial war powers case, they voted to invalidate Truman’s seizure of the nations steel mills during the Korean War, rejecting the President’s claim of national security. Chief Justice Warren was a law and order governor of California and as California Attorney General he enthusiastically supported the removal of Japanese-Americans in California during World War II and containing them in camps in the interior. But Warren joined or wrote many liberal criminal justice opinions as well as many other liberal opinions during his tenor on the court. Incidentally, Warren apologized later while delivering a James Madison lecture at NYU Law School to the outrages against Japanese-Americans. Finally, Clarence Thomas, an African American and beneficiary of Affirmative Action throughout his life has opposed such programs as a Justice, not to mention his rejection of many other liberal positions. So perhaps the biographies of Justices are more difficult to pigeonhole than appears at first thought.
In light of this, I will raise a few questions about Justice Stevens that biographers may or may not be able to answer. I believe Justice Stevens has written more solo dissents then any other Justice in recent times, and maybe ever. Why? Is this a reflection of that same concern for craft and of getting it right? Or are the solo dissents a reflection of an individualistic or even ornery nature that makes him unable to accept an otherwise unanimous decision. Second, how, if at all, is Stevens’ Judicial performance affected by his many years as a practicing lawyer, years which he often refers to privately as his more important professional experience. Third, in last Sunday’s New York Times, Linda Greenhouse, formally the paper’s Supreme Court correspondent, attributes Stevens’ change from a moderate-centrist, often on the conservative side of cases when he joined the Court in 1976, to his current status, in her words, “as the leader of the Court’s remaining liberals”. Greenhouse, and Stevens himself, attribute this evolution to his ability to learn on the job. But is this a sufficient explanation?
There are least two other notable examples of Republican appointees in the last years moving towards liberalism some years after joining the Court. I refer to Justice Black now, and less well known, Chief Justice Warren. Was learning on the job what happened to them? Or are there other explanations? And what exactly does ‘learning on the job’ mean? Finally, does Justice Stevens upper-class social background help answer these and other questions about his jurisprudence? He is one of relatively few patrician Justices of the 20th Century who include Oliver Wendell Holmes, William Howard Taft, Charles Evans Hughes, and John Marshall Harlan. Does class standing work in the same way for all of them? And how? –Does it provide extra self-confidence, or something else? Or is it irrelevant? Perhaps the biography on Justice Stevens will answer all of these.
Joan Biskupic: Like Jeff, I have been fortunate to interview Justice Stevens a couple times and have a lot of respect for him. When I talked to him recently, I asked him what he thought the next Justice should have. This was the week before he announced, but he talked about his own trial experience, and the fact that he was a regular lawyer. He talked about his having done legislative work. At one point, he also achieved the highest grades in Northwestern’s history. They changed their grading system, but for a long time he held this record. Given his very privileged background, the fact that he was secure with himself as a smart individual, made it easier for him to maneuver. Jeff and I have both observed Justices who come on as a little bit anxious about their standing. I said to Scalia the same week before Justice Stevens announced his retirement, “I thought you and Justice Stevens are a kind of match in legislative history and intellectual approach to law.’ And he said, “Yeah, I think he’s about my match. He might be as smart as me.”
Jeffrey Rosen: He talked to me about why he filed so many dissents and thought it came out of that commission of 1969 experience. The judge who was accused of throwing out the trial was on a case where there was a third judge who was going to dissent and expose the corruption. He was persuaded not to in the interest of collegiality and Stevens thought had he dissented the whole scandal would have been avoided. As a result, Stevens believes that whenever he disagrees with his colleagues he has a duty to say so.
Barry Friedman: Felix Frankfurter was this liberal activist who essentially became a spokesperson for Judicial restraint. Why? I have a theory about why that was which connects into Justice Scalia.
I always thought that Justice Frankfurter suffered from being not American enough. He was always conscious that he wasn't born here, and that he was Jewish, and had to overcome that, and, in his opinions he worked a little too hard to prove his 'Americanism'. I've often thought that Justice Scalia, at some level, though he's proud of his Italian-American heritage, suffers from that too and works a little too hard to defend the government and the status-quo on those terms?
Norman Dorsen: Interesting. I hope you'll forgive me for saying, I knew Justice Frankfurter very well. He arrived in this country age eleven not speaking a word of English. He was first in his class at Harvard Law all three years, about eight years later. People forget about Frankfurter that he, like Brandeis and Holmes, opposed an activist Supreme Court during the era of Lochner. Brandeis even went so far--and Frankfurter mimicked him--to say they regretted that the due process laws was ever within the Constitution--because it was being used in economic and social legislation by the four horsemen and there were others besides them. Frankfurter was a founder of the American Civil Liberties Union, was on the National Council of the American Civil Liberties Union. But, when he got on the Court he reverted to his former self. In the ACLU movement at the time was a man named Roger Baldwin, who was the principle organizer. After the Flag Salute Cases in which Frankfurter alone dissented, he went down and spoke to Frankfurter who he'd known for thirty-five years and said "Felix, we thought you were going to be the greatest liberal Justice in the history of the Supreme Court." Felix Frankfurter's answer to that was, "I guess none of you knew me well enough."
Joan Biskupic: In terms of ethnic defensiveness, Justice Scalia really wanted to go to Princeton. He was born Trenton, but grew up in Queens and it was his dream to go to Princeton. He didn’t get in -- even though he was first in his class and he had gotten one of those fancy Navy Scholarships they had back in the old days which would have enabled him to get a free ride anywhere. He ended up at Georgetown for Undergrad. He said "I guess they just didn't want an Italian boy from Queens."
There were a couple other things he said during the course of my many interviews with him that suggested that he remembered what that was like. Remember, the Italians were one of the last sets of European immigrants to come over and his father came over, obviously, just as a teenager himself. So he grew up in a time when he was aware of some discrimination and during his hearings, believe it or not, when he was being pinned down about his views on Affirmative Action, he evoked his own Italian heritage and said, "If I somehow took a bad view of racial minorities it would be a form of self-hate." None of the Senators challenged him on that. I couldn't believe it. He was saying essentially, 'I'm close to a racial minority myself.' But Ed Hess and Ronald Reagan were enamored with his first-generation story and in a lot of ways it was the fact that he was Italian, and would be the first Italian on the Supreme Court, helped him get the position.
Barry Friedman: There are many examples of private lawyers who went on to serve on the Court. I wonder whether that makes sense – in light of what the Court does. Or, if it’s not such a good idea. Or whether, in fact, what the Court does, and the cases it takes reflects the fact that it doesn’t have a bench full of people who were ordinary lawyers in one sort of setting or another. Any sense of that?
Joan Biskupic: That’s true. There are so few of them up there, like Justice Stevens, who would have had to go done to a Court House and actually filed papers. Justice O’Conner also brought the legislative experience. But it does get them closer to things. Also, I think there is something to be said for what branch of government you are affiliated with when you were a government lawyer.
Justice Stevens said to me, “It’s very much minimized in my biography but I did work for,” I think it was, “the Senate Judiciary Committee on anti-trust issues”. And Justice Briar was certainly influenced by work he did for Senator Kennedy on Judiciary issues. They’re inside. They see how laws are made and, this, in turn, informs how they interpret the laws. But when you think about everything they rule on, you know, the big hot-shot constitutional issues that we like to write about isn’t the bread and butter of this Court. The bread and butter issues before this Court tends to involve things that will then affect the people who go to the Court Houses and actually file There’s some value in having your eyes open to that.
Norman Dorsen: Let me tell you about something Justice Harlan said to me when I was a law clerk—a long time ago, ’57-’58. Harlan said, “Now, we have a lot of people from different backgrounds here. We have people who are from state government like Brennan. We have people like Warren. We have people like Black and Frankfurter who were mostly academics. The main thing, in my opinion, for a good Court is variety, the inclusion of people from different backgrounds. Every one of those people bring something distinctive they talk about a case.” One of the dangers of the present situation is that the dominate part of the backgrounds of almost all the Justices is their time on the bench and that inures them, as Joan said, from being closer to the reality of what happens on the ground.
Jeffrey Rosen: That is a concern. But, when you think about what the missing element of ideological diversity on this Court, I think I would point to the fact that there’s not a single economic populous. William O. Douglas used to say: “I want to bend the law against the corporations and in favor of the environment.” This in part reflects the background of the Justices and suggests it is not just about being a lawyer or a judge, it’s what kind of law you practice. Most of the liberal and conservative Justices on the Roberts Court are quite pro-business and this reflects their backgrounds. Roberts represented the U.S. Chambers of Commerce while he was at Hogan & Hartson. Justice Breyer taught anti-trust at Harvard. Justice Ginsburg taught civil procedure. Stevens was an anti-trust lawyer, just as Justice Sotomayor was a corporate lawyer. There is not a single fire-breathing, Hugo Black or William O. Douglas guy who wants to do what President Obama said he hoped a Justice would do, which is to recognize the affect law has on real people, and, side with the powerless, not the powerful.
These remarks were adapted, with permission from the speakers, from an NYU Law Forum discussion on April 14, 2010.
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