Courtwatchers by Clare Cushman

Author:Clare Cushman [Cushman, Clare]
Language: eng
Format: epub
Publisher: Rowman & Littlefield Publishers
Published: 2011-03-14T16:00:00+00:00

10

(Not So) Good Behavior

Discord and Feuds

In 1922 Oliver Wendell Holmes, Jr., took a break from a heated Conference discussion to write a note to Felix Frankfurter, then a law professor at Harvard. His missive concluded with these words: “I stepped out of a cloud of biting mosquitoes for a word of freedom with you. Now I go back to the swamp.”

Getting along with eight colleagues over long periods of time would be challenging in any small, tight-knit organization, but when weighty constitutional issues are at stake tension may be unavoidable. Sixty-five years after Holmes admitted to Frankfurter that he needed a breather, Harry A. Blackmun told a reporter that he, too, sought an occasional respite from his fellow Justices:

Well, I like to get away. As a matter of fact, I think I have to get away from Washington and this building, once in awhile, just to maintain my sanity. This is a very close intimate association that the nine of us have. We’re working constantly with each other under conditions of a certain amount of agreement, and a very definite amount of disagreement.

Relationships between Justices have tended toward polite respect, although there have been some important friendships as well. But the Supreme Court has also weathered some miserable periods of feuding among the Justices. These clashes have sometimes stemmed from ideological differences, but were exacerbated by the abrasive personalities and rude behavior of individual members. “Nothing is more distressing on any bench than the exhibition of a captious, impatient, querulous spirit,” admonished Charles Evans Hughes in 1927. “Independence does not mean cantankerousness and a judge may be a strong judge without being an impossible person.”

The first Justice to exhibit disruptive behavior on the bench, Samuel Chase, nearly got himself thrown off the Court in 1804. A pro-Federalist political firebrand, he was boorish and made insulting comments to Republican attorneys arguing before him. Chase was also unabashed at showing his irritation when counsel spoke too long or argued at length on the merits of a point which he considered already settled. On one occasion, Chase kept interrupting the speech of a prominent advocate, Jared Ingersoll, to tell him that the point was made and that he needn’t waste the Court’s time arguing it further. After Chase’s third interruption, an indignant Ingersoll simply abandoned his argument and sat down. According to a spectator in the Courtroom, Chief Justice Oliver Ellsworth expressed annoyance with Chase for his impertinence:

The Chief Justice had now borne with his Associate as long as respect for himself and the Court would allow; and taking out his snuff-box, and as his custom was, tapping it on the side preparatory to abstracting a pinch, said to Mr. Ingersoll, with an emphatic manner and meaning not misunderstood by his Associate, “The Court has expressed no opinion, Sir, upon these points, and when it does, you will hear it from the proper organ of the Court [i.e., the Chief Justice]. You will proceed, Sir, and I pledge you my

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