Demographics of the Supreme Court of the United States
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The demographics of the Supreme Court of the United States encompass the gender, ethnicity, and religious, geographic, and economic backgrounds of the 112 justices appointed to the Supreme Court. Certain of these characteristics have been raised as an issue since the Court was established in 1789. For its first 180 years, justices were almost always white male Protestants. Prior to the 20th century, a few Roman Catholics were appointed, but concerns about diversity of the Court were mainly in terms of geographic diversity, to represent all geographic regions of the country, as opposed to ethnic, religious, or gender diversity. The 20th century saw the first appointment of a Jewish justice (Louis Brandeis, 1916), an African-American (Thurgood Marshall, 1967), an Italian-American (Antonin Scalia, 1986), and a woman (Sandra Day O'Connor, 1981). The 21st century saw the first appointment of a Hispanic justice (Sonia Sotomayor, 2009; if Benjamin Cardozo is excluded).
In spite of the interest in the Court's demographics and the symbolism accompanying the inevitably political appointment process, and the views of some commentators that no demographic considerations should arise in the selection process, the gender, race, educational background or religious views of the justices has played little role in their jurisprudence. For example, the two African-American justices had similar personal backgrounds at the time of their appointments, yet their opinions reflected radically different judicial philosophies; William Brennan and Antonin Scalia shared Catholic faith and a Harvard Law School education, but shared little in the way of jurisprudential philosophies. The court's first two female justices voted together no more often than with their male colleagues, and historian Thomas R. Marshall writes that no particular "female perspective" can be discerned from their opinions.
- 1 Geographic background
- 2 Ethnicity
- 3 Gender
- 4 Marital status and sexual orientation
- 5 Religion
- 6 Age
- 7 Educational background
- 8 Professional background
- 9 Economic background
- 10 See also
- 11 Notes
- 12 References
- 13 External links
For most of the existence of the Court, geographic diversity has been a key concern of presidents in choosing justices to appoint. This was prompted in part by the early practice of Supreme Court justices also "riding circuit"—individually hearing cases in different regions of the country. In 1789, the United States was divided into judicial circuits, and from that time until 1891, Supreme Court justices also acted as judges within those individual circuits. George Washington was careful to make appointments "with no two justices serving at the same time hailing from the same state". Abraham Lincoln broke with this tradition during the Civil War, and "by the late 1880s presidents disregarded it with increasing frequency".
Although the importance of regionalism declined, it still arose from time to time. For example, in appointing Benjamin Cardozo in 1929, President Hoover was as concerned about the controversy over having three New York justices on the Court as he was about having two Jewish justices. David M. O'Brien notes that "[f]rom the appointment of John Rutledge from South Carolina in 1789 until the retirement of Hugo Black [from Alabama] in 1971, with the exception of the Reconstruction decade of 1866–1876, there was always a southerner on the bench. Until 1867, the sixth seat was reserved as the 'southern seat'. Until Cardozo's appointment in 1932, the third seat was reserved for New Englanders." The westward expansion of the U.S. led to concerns that the western states should be represented on the Court as well, which purportedly prompted William Howard Taft to make his 1910 appointment of Willis Van Devanter of Wyoming.
However, geographic balance has not been raised as a concern since the 1970s, when Nixon attempted to employ a "Southern strategy", hoping to secure support from Southern states by nominating judges from the region. Nixon unsuccessfully nominated Southerners Clement Haynsworth of South Carolina and G. Harrold Carswell of Georgia, before finally succeeding with the nomination of Harry Blackmun of Minnesota.
As of 2010[update], the Court has a majority from the Northeastern United States, with seven justices coming from states to the north and east of Washington, D.C.. The remaining two justices come from Georgia and California, respectively. There is some dispute, however, in determining which state a Justice may be from. Because many nominees are appointed Judges who live in districts other than their hometown or home state, geographic diversity has become harder to calculate. Chief Justice John Roberts, for example, was born in New York, but moved to Indiana at the age of five, where he grew up. After law school, Roberts worked in Washington, D.C. while living in Maryland. Thus, three states may claim that he is a Justice from that state. Regional diversity was raised in the context of a 2010 vacancy on the Court, created by the retirement of John Paul Stevens, who had been appointed from the midwestern Seventh Circuit, leaving the Court with all but one Justice having been appointed from states on the East Coast.
Despite the efforts to achieve geographic balance, nineteen states have never produced a Supreme Court Justice. Some states have been over-represented (although partly because there were fewer states from which early justices could be appointed), with New York producing fifteen justices, Ohio producing ten, Massachusetts nine, Virginia eight, six each from Pennsylvania and Tennessee, and five from Kentucky, Maryland, and New Jersey. A handful of justices were born outside the United States, mostly from among the earliest justices on the Court. These included James Wilson, born in Fife, Scotland; James Iredell, born in Lewes, England; and William Paterson, born in County Antrim, Ireland. Justice David Josiah Brewer was born farthest from the U.S., in Smyrna, Asia Minor, (now İzmir, Turkey). George Sutherland was born in Buckinghamshire, England. The last foreign-born Justice, and the only one of these for whom English was a second language, was Felix Frankfurter, born in Vienna, Austria. It should be noted that the Constitution imposes no citizenship requirement on federal judges.
All Supreme Court justices were Caucasians of European heritage until the appointment of Thurgood Marshall, the first African American Justice, in 1967. Since then, only two other non-white Justices have been appointed, Marshall's African-American successor, Clarence Thomas in 1991, and Sonia Sotomayor in 2009.
The vast majority of white justices have been of Northern European and Western European descent. Up to the 1980s, only six justices of "central, eastern, or southern European derivation" had been appointed, of which five "were of Germanic background, which includes Austrian, German-Bohemian, and Swiss origins (John Catron, Samuel F. Miller, Louis Brandeis, Felix Frankfurter, and Warren Burger), while one justice was of Iberian descent (Benjamin N. Cardozo)." Justice Antonin Scalia (appointed in 1986) and Justice Samuel Alito (appointed in 2006) are the first justices of Italian descent to be appointed to the Supreme Court. Cardozo, appointed to the Court in 1932, was the first Justice known to have non-northern European ancestry.
African American justices
The first African American appointed to the Court was Thurgood Marshall, appointed by Lyndon B. Johnson in 1967. The second was Clarence Thomas, appointed by George H. W. Bush to succeed Marshall in 1991.
Johnson appointed Marshall to the Supreme Court following the retirement of Justice Tom C. Clark, saying that this was "the right thing to do, the right time to do it, the right man and the right place." Marshall was confirmed as an Associate Justice by a Senate vote of 69–11 on August 31, 1967. Johnson confidently predicted to one biographer, Doris Kearns Goodwin, that a lot of black baby boys would be named "Thurgood" in honor of this choice (in fact, Kearns's research of birth records in New York and Boston indicates that Johnson's prophecy did not come true).
Bush initially wanted to nominate Thomas to replace William Brennan, who stepped down in 1990, but he then decided that Thomas had not yet had enough experience as a judge after only months on the federal bench. Bush therefore nominated New Hampshire Supreme Court judge David Souter instead. The selection of Thomas to instead replace Marshall preserved the existing racial composition of the court.
No African-American candidate was given serious consideration for appointment to the Supreme Court until the election of John F. Kennedy, who weighed the possibility of appointing William H. Hastie of the United States Court of Appeals for the Third Circuit. Hastie had been the first African-American elevated to a Court of Appeals when Harry S. Truman had so appointed him in 1949, and by the time of the Kennedy Administration, it was widely anticipated that Hastie might be appointed to the Supreme Court. That Kennedy gave serious consideration to making this appointment "represented the first time in American history that an African American was an actual contender for the high court".
Hispanic and Latino justices
The words "Latino" and "Hispanic" are sometimes given distinct meanings, with "Latino" referring to persons of Latin American descent, and "Hispanic" referring to persons having an ancestry, language or culture traceable to Spain or to the Iberian Peninsula as a whole, although the term "Lusitanic" usually refers to persons having an ancestry, language or culture traceable to Portugal specifically.
Sonia Sotomayor—nominated by President Barack Obama on May 26, 2009, and sworn in on August 8—is the first Supreme Court Justice of Latin American descent. Born in New York City of Puerto Rican parents, she has been known to refer to herself as a "Nuyorican". Sotomayor is also generally regarded as the first Hispanic justice, although some sources claim that this distinction belongs to former Justice Benjamin N. Cardozo.
It has been claimed that "only since the George H. W. Bush administration have Hispanic candidates received serious consideration from presidents in the selection process", and that Emilio M. Garza (considered for the vacancy eventually given to Clarence Thomas) was the first Hispanic judge for whom such an appointment was contemplated. Subsequently, Bill Clinton was reported by several sources to have considered José A. Cabranes for a Supreme Court nomination on both occasions when a Court vacancy opened during the Clinton presidency. The possibility of a Hispanic Justice returned during the George W. Bush Presidency, with various reports suggesting that Emilio Garza, Alberto Gonzales, and Consuelo M. Callahan were under consideration for the vacancy left by the retirement of Sandra Day O'Connor. O'Connor's seat eventually went to Samuel Alito, however. Speculation about a Hispanic nomination arose again after the election of Barack Obama. In 2009, Obama appointed Sonia Sotomayor, a woman of Puerto Rican descent, to be the first unequivocally Hispanic Justice. Both the National Association of Latino Elected and Appointed Officials and the Hispanic National Bar Association count Sotomayor as the first Hispanic justice.
Some historians contend that Cardozo—a Sephardic Jew believed to be of distant Portuguese descent—should also be counted as the first Hispanic Justice. Schmidhauser wrote in 1979 that "[a]mong the large ethnic groupings of European origin which have never been represented upon the Supreme Court are the Italians, Southern Slavs, and Hispanic Americans." The National Hispanic Center for Advanced Studies and Policy Analysis wrote in 1982 that the Supreme Court "has never had an Hispanic Justice", and the Hispanic American Almanac similarly reported in 1996 that "no Hispanic has yet sat on the U.S. Supreme Court". However, Segal and Spaeth state: "Though it is often claimed that no Hispanics have served on the Court, it is not clear why Benjamin Cardozo, a Sephardic Jew of Spanish heritage, should not count." They identify a number of other sources that present conflicting views as to Cardozo's ethnicity, with one simply labeling him "Iberian." In 2007, the Dictionary of Latino Civil Rights History also listed Cardozo as "the first Hispanic named to the Supreme Court of the United States."
The nomination of Sonia Sotomayor, widely described in media accounts as the first Hispanic nominee, drew more attention to the question of Cardozo's ethnicity. Cardozo biographer Andrew Kaufman questioned the usage of the term "hispanic" during Cardozo's lifetime, commenting: "Well, I think he regarded himself as Sephardic Jew whose ancestors came from the Iberian Peninsula." However, "no one has ever firmly established that the family's roots were, in fact, in Portugal". It has also been asserted that Cardozo himself "confessed in 1937 that his family preserved neither the Spanish language nor Iberian cultural traditions". By contrast, Cardozo was noted to have made his own translations of authoritative legal works written in French and German.
Ethnic groups that have never been represented
Many ethnic groups have never been represented on the Court. There has never been a Justice with any Asian, Native American, or Pacific Islander heritage, and no person having such a heritage was publicly considered for an appointment until the 21st century. Legal scholar Viet D. Dinh, of Vietnamese descent, was named as a potential George W. Bush nominee. During the presidency of Barack Obama, potential nominees have included Harold Hongju Koh, of Korean descent, and former Idaho attorney general Larry EchoHawk, a member of the Pawnee tribe.
Public opinion on ethnic diversity
Public opinion about ethnic diversity on the court "varies widely depending on the poll question's wording". For example, in two polls taken in 1991, one resulted in half of respondents agreeing that it was "important that there always be at least one black person" on the Court while the other had only 20% agreeing with that sentiment, and with 77% agreeing that "race should never be a factor in choosing Supreme Court justices". It is claimed that the Presidents who have appointed Justices to the Supreme Court in recent years have taken race and religion into account, causing it to be unrepresentative of the U.S. population in general. At the current time, no white Protestant serves on the Court, despite the fact that white Protestants are the largest single demographic group in the United States.
Of the 112 justices, 108 (96.4%) have been men. All Supreme Court justices were males until 1981, when Ronald Reagan fulfilled his 1980 campaign promise to place a woman on the Court, which he did with the appointment of Sandra Day O'Connor. O'Connor was later joined on the Court by Ruth Bader Ginsburg, appointed by Bill Clinton in 1993. After O'Connor retired in 2006, Ginsburg would be joined by Sonia Sotomayor and Elena Kagan, who were successfully appointed to the Court in 2009 and 2010, respectively, by Barack Obama. The only other woman to be nominated to the Court was Harriet Miers, whose nomination to succeed O'Connor by George W. Bush was withdrawn under fire.
Substantial public sentiment in support of appointment of a woman to the Supreme Court has been expressed since at least as early as 1930, when an editorial in the Christian Science Monitor encouraged Herbert Hoover to consider Ohio justice Florence E. Allen or assistant attorney general Mabel Walker Willebrandt. Franklin Delano Roosevelt later appointed Allen to the United States Court of Appeals for the Sixth Circuit—making her "one of the highest ranking female jurists in the world at that time". However, neither Roosevelt nor his successors over the following two decades gave strong consideration to female candidates for the Court. Harry Truman considered such an appointment, but was dissuaded by concerns raised by justices then serving that a woman on the Court "would inhibit their conference deliberations", which were marked by informality.
President Richard Nixon named Mildred Lillie, then serving on an Second District Court of Appeal of California, as a potential nominee to fill one of two vacancies on the Court in 1971. However, Lillie was quickly deemed unqualified by the American Bar Association, and no formal proceedings were ever set with respect to her potential nomination. Lewis Powell and William Rehnquist were then successfully nominated to fill those vacancies.
|Appointed by||Reason for
|O'Connor, Sandra DaySandra Day O'Connor||AZ||1930||living||1981||2006||Reagan||retirement|
|Ginsburg, Ruth BaderRuth Bader Ginsburg||NY||1933||living||1993||incumbent||Clinton||—|
|Sotomayor, SoniaSonia Sotomayor||NY||1954||living||2009||incumbent||Obama||—|
|Kagan, ElenaElena Kagan||NY||1960||living||2010||incumbent||Obama||—|
Public opinion on gender diversity
In 1991, a poll found that 53% of Americans felt it "important that there always be at least one woman" on the Court. However, when O'Connor stepped down from the court, leaving Justice Ginsburg as the lone remaining woman, only one in seven persons polled found it "essential that a woman be nominated to replace" O'Connor.
Marital status and sexual orientation
All but a handful of Supreme Court justices have been married. Frank Murphy, Benjamin Cardozo, and James McReynolds were all lifelong bachelors. In addition, retired justice David Souter, and current justice Elena Kagan, have never been married. William O. Douglas was the first Justice to divorce while on the Court, and also had the most marriages of any Justice, with four. Justice John Paul Stevens divorced his first wife in 1979, marrying his second wife later that year. Sonia Sotomayor, was the first female justice to be appointed as a single woman (she was divorced in 1983, well before her nomination in 2009).
Several justices have become widowers while on the bench. The 1792 death of Elizabeth Rutledge, wife of Justice John Rutledge, contributed to the mental health problems that led to the rejection of his recess appointment. Roger B. Taney survived his wife, Anne, by twenty years. Oliver Wendell Holmes, Jr. resolutely continued working on the Court for several years after the death of his wife. William Rehnquist was a widower for the last fourteen years of his service on the Court, his wife Natalie having died on October 17, 1991 after suffering from ovarian cancer. With the death of Martin D. Ginsburg in June 2010, Ruth Bader Ginsburg became the first woman to be widowed while serving on the Court.
With regards to sexual orientation, no Supreme Court Justice has identified themselves as anything other than heterosexual and, while the personal lives of several justices have attracted speculation, no incontrovertible evidence of a Justice's homosexuality has ever been uncovered.
However, there are grounds for questioning the heterosexuality of one unsuccessful Supreme Court nominee, G. Harrold Carswell, who was nominated by Richard Nixon in 1970 and was later arrested and convicted in 1976 of battery for making an "unnatural and lascivious" advance to a male police officer working undercover in a Florida men's room. Some therefore claim him as the first (and, thus far, only) gay or bisexual nominated to the Court. Nixon's White House Counsel, John Dean later wrote of Carswell that "[w]hile Richard Nixon was always looking for historical firsts, nominating a homosexual to the high court would not have been on his list".
Speculation has been recorded about the sexual orientation of a few justices who were lifelong bachelors but no unambiguous evidence exists proving that they were gay. Perhaps the greatest body of circumstantial evidence surrounds Justice Frank Murphy, who was dogged by "[r]umors of homosexuality [...] all his adult life".
For more than 40 years, Edward G. Kemp was Frank Murphy's devoted, trusted companion. Like Murphy, Kemp was a lifelong bachelor. From college until Murphy's death, the pair found creative ways to work and live together. [...] When Murphy appeared to have the better future in politics, Kemp stepped into a supportive, secondary role.
As well as Murphy's close relationship with Kemp, Murphy's biographer, historian Sidney Fine, found in Murphy's personal papers a letter that "if the words mean what they say, refers to a homosexual encounter some years earlier between Murphy and the writer." However, the letter's veracity cannot be confirmed and a review of all the evidence led Fine to conclude that he "could not stick his neck out and say [Murphy] was gay".
Speculation has also surrounded Benjamin Cardozo, who led a celibate life. The fact that he was unmarried and was personally tutored by the writer Horatio Alger (who had been accused of inappropriate sexual relations with young boys) led some of Cardozo's biographers to insinuate that Cardozo was a homosexual, but no real evidence exists to corroborate this possibility. Constitutional law scholar Jeffrey Rosen noted in a New York Times Book Review of Richard Polenberg's book on Cardozo:
Polenberg describes Cardozo's lifelong devotion to his older sister Nell, with whom he lived in New York until her death in 1929. When asked why he had never married, Cardozo replied, quietly and sadly, I never could give Nellie the second place in my life. Polenberg suggests that friends may have stressed Cardozo's devotion to his sister to discourage rumors that he was sexually dysfunctional, or had an unusually low sexual drive or was homosexual. But he produces no evidence to support any of these possibilities, except to note that friends, in describing Cardozo, used words like beautiful, exquisite, sensitive or delicate.
Andrew Kaufman, author of Cardozo, a biography published in 2000, notes that "Although one cannot be absolutely certain, it seems highly likely that Cardozo lived a celibate life". Judge Learned Hand is quoted in the book as saying about Cardozo: "He [had] no trace of homosexuality anyway".
More recently, when David Souter was nominated to the Court, "conservative groups expressed concern to the White House... that the president's bachelor nominee might conceivably be a homosexual". Similar questions were raised regarding the sexual orientation of Elena Kagan. However, no evidence was ever produced regarding Souter's sexual orientation, and Kagan's heterosexuality was attested by colleagues familiar with her dating history.
When the Supreme Court was established in 1789, the first members came from among the ranks of the Founding Fathers and were almost uniformly Protestant. Of the 112 justices who have been appointed to the court, 91 have been from various Protestant denominations, 12 have been Catholics (one other Justice, Sherman Minton, converted to Catholicism after leaving the Court), eight have been Jewish and one, David Davis, had no known religious affiliation. Three of the 17 chief justices have been Catholics, and one Jewish Justice, Abe Fortas, was unsuccessfully nominated to be Chief Justice.
The table below shows the religious affiliation of each of the justices sitting as of 2013[update]:
|Name||Religion||Appt. by||On the Court since|
|Roberts, JohnJohn Roberts (Chief Justice)||Roman Catholic||G.W. Bush||2005|
|Scalia, AntoninAntonin Scalia||Roman Catholic||Reagan||1986|
|Kennedy, AnthonyAnthony Kennedy||Roman Catholic||Reagan||1988|
|Thomas, ClarenceClarence Thomas||Roman Catholic||G.H.W. Bush||1991|
|Ginsburg, Ruth BaderRuth Bader Ginsburg||Jewish||Clinton||1993|
|Breyer, StephenStephen Breyer||Jewish||Clinton||1994|
|Alito, SamuelSamuel Alito||Roman Catholic||G.W. Bush||2006|
|Sotomayor, SoniaSonia Sotomayor||Roman Catholic||Obama||2009|
|Kagan, ElenaElena Kagan||Jewish||Obama||2010|
Most Supreme Court justices have been from various Protestant denominations, and these have included 33 Episcopalians, 18 Presbyterians, nine Unitarians, five Methodists, three Baptists, and lone representatives of various other denominations. William Rehnquist was the Court's only Lutheran; Noah Swayne was a Quaker. Some 15 Protestant justices did not adhere to a particular denomination. Notably, the Baptist church and other evangelical churches have been underrepresented on the Court, relative to the population of the United States. So-called mainline Protestant churches have been overrepresented.
Roman Catholic justices
The first Roman Catholic Justice, Roger B. Taney, was appointed Chief Justice in 1836 by Andrew Jackson. The second, Edward Douglass White, was appointed as an Associate Justice in 1894, but also went on to become Chief Justice. Joseph McKenna was appointed in 1898, placing two Catholics on the Court until White's death in 1921. This period marked the beginning of an inconsistently observed "tradition" of having a "Catholic seat" on the court.[dead link]
Other Catholic justices included Pierce Butler (appointed 1923) and Frank Murphy (appointed 1940). Some accounts note that Sherman Minton, appointed in 1949, was also a Catholic; however, during his time on the Court he was a Protestant, though his wife's Catholic faith was noted at the time in relation to the notion of a "Catholic seat". Minton joined his wife's Catholic faith in 1961, five years after he retired from the Court. Minton was succeeded by a Catholic, however, when President Eisenhower appointed William J. Brennan to that seat. In fact, Eisenhower intently sought to appoint a Catholic to the Court—in part because there had been no Catholic Justice since Murphy's death in 1949, and in part because Eisenhower was directly lobbied by Cardinal Francis Spellman of the Archdiocese of New York to make such an appointment. Brennan was then the lone Catholic Justice until the appointment of Antonin Scalia in 1986, and Anthony Kennedy in 1988.
Like Sherman Minton, Clarence Thomas was not a Catholic at the time he was appointed to the Court. Thomas was raised Catholic and briefly attended Conception Seminary College, a Roman Catholic seminary, but had joined the Protestant denomination of his wife after their marriage. At some point in the late 1990s, Thomas returned to Catholicism. In 2005, John Roberts became the third Catholic Chief Justice and the fourth Catholic on the Court. Shortly thereafter, Samuel Alito became the fifth on the Court, and the eleventh in the history of the Court. Alito's appointment gave the Court a Catholic majority for the first time in its history. Besides Thomas, at least one other Justice, James F. Byrnes, was raised as a Roman Catholic, but converted to a different branch of Christianity prior to serving on the Court.
In contrast to historical patterns, the Court has gone from having a "Catholic seat" to being what some have characterized as a "Catholic court." The reasons for that are subject to debate, and are a matter of intense public scrutiny. That the majority of the Court is now Catholic, and that the appointment of Catholics has become accepted, represents an historical 'sea change.' It has fostered accusations that the court has become "a Catholic boys club" (particularly as the Catholics chosen tend to be politically conservative) and calls for non-Catholics to be nominated.
In May 2009, President Barack Obama nominated a Catholic woman, Sonia Sotomayor, to replace retiring Justice David Souter. Her confirmation raised the number of Catholics on the Court to six, compared to three non-Catholics.
|Appointed by||Reason for
|Taney, Roger BrookeRoger Brooke Taney||MD||1777||1864||1836||1864||Jackson||death|
|White, Edward DouglassEdward Douglass White||LA||1845||1921||1894||1921||Cleveland (associate)
|McKenna, JosephJoseph McKenna||CA||1843||1926||1898||1925||McKinley||retirement|
|Butler, PiercePierce Butler||MN||1866||1939||1923||1939||Harding||death|
|Murphy, FrankFrank Murphy||MI||1890||1949||1940||1949||F. Roosevelt||death|
|Minton, ShermanSherman Minton||IN||1890||1965||1949||1956||Truman||death|
|Brennan, Jr., William JosephWilliam Joseph Brennan, Jr.||NJ||1906||1997||1956||1990||Eisenhower||death|
|Scalia, Antonin GregoryAntonin Gregory Scalia||VA||1936||living||1986||incumbent||Reagan||—|
|Kennedy, Anthony McLeodAnthony McLeod Kennedy||CA||1936||living||1988||incumbent||Reagan||—|
|Thomas, ClarenceClarence Thomas||GA||1948||living||1991||incumbent||G. H. W. Bush||—|
|Roberts, Jr., John GloverJohn Glover Roberts, Jr.||MD||1955||living||2005||incumbent||G. W. Bush||—|
|Alito, Samuel AnthonySamuel Anthony Alito||NJ||1950||living||2006||incumbent||G. W. Bush||—|
|Sotomayor, SoniaSonia Sotomayor||NY||1954||living||2009||incumbent||Obama||—|
In 1853, President Millard Fillmore offered to appoint Louisiana Senator Judah P. Benjamin to be the first Jewish Justice, and the New York Times reported (on February 15, 1853) that "if the President nominates Benjamin, the Democrats are determined to confirm him". However, Benjamin declined the offer, and ultimately became Secretary of State for the Confederacy during the Civil War. The first Jewish nominee, Louis Brandeis, was appointed in 1916, after a tumultuous hearing process. The 1932 appointment of Benjamin Cardozo raised mild controversy for placing two Jewish justices on the Court at the same time, although the appointment was widely lauded based on Cardozo's qualifications, and the Senate was unanimous in confirming Cardozo.
Brandeis was succeeded by Protestant William O. Douglas, but Cardozo was succeeded by another Jewish Justice, Felix Frankfurter. Negative reaction to the appointment of the early Jewish justices did not exclusively come from outside the Court. Justice James Clark McReynolds, a blatant anti-semite, refused to speak to Brandeis for three years following the latter's appointment and when Brandeis retired in 1939, did not sign the customary dedicatory letter sent to Court members on their retirement. During Benjamin Cardozo's swearing in ceremony McReynolds pointedly read a newspaper muttering "another one" and did not attend that of Felix Frankfurter, exclaiming "My God, another Jew on the Court!"
Frankfurter was followed by Arthur Goldberg and Abe Fortas, each of whom filled what became known as the "Jewish Seat". After Fortas resigned in 1969, he was replaced by Protestant Harry Blackmun. No Jewish justices were nominated thereafter until Ronald Reagan nominated Douglas H. Ginsburg in 1987, to fill the vacancy created by the retirement of Lewis F. Powell; however, this nomination was withdrawn, and the Court remained without any Jewish justices until 1993, when Ruth Bader Ginsburg (unrelated to Douglas Ginsburg) was appointed to replace Byron White. Ginsburg was followed in relatively quick succession by the appointment of Stephen Breyer, also Jewish, in 1994 to replace Harry Blackmun. In 2010, the confirmation of President Barack Obama's nomination of Elena Kagan to the Court ensured that three Jewish justices would serve simultaneously.
|Appointed by||Reason for
|Brandeis, LouisLouis Brandeis||KY||1856||1941||1916||1939||Wilson||death|
|Cardozo, Benjamin N.Benjamin N. Cardozo||NY||1870||1938||1932||1938||Hoover||death|
|Frankfurter, FelixFelix Frankfurter||NY||1882||1965||1939||1962||F. Roosevelt||death|
|Goldberg, ArthurArthur Goldberg||IL||1908||1990||1962||1965||Kennedy||resigned to become
|Fortas, AbeAbe Fortas||TN||1910||1982||1965||1969||L.B. Johnson||resignation|
|Ginsburg, Ruth BaderRuth Bader Ginsburg||NY||1933||living||1993||incumbent||Clinton||—|
|Breyer, StephenStephen Breyer||CA||1938||living||1994||incumbent||Clinton||—|
|Kagan, ElenaElena Kagan||NY||1960||living||2010||incumbent||Obama||—|
The shift to a non-Protestant majority, a Catholic majority, and a wholly non-Protestant Court
At the time of Breyer's appointment in 1994, there were two Roman Catholic justices, Antonin Scalia and Anthony Kennedy, and two Jewish justices, Stephen Breyer and Ruth Bader Ginsburg. Clarence Thomas, who had been raised as a Roman Catholic but had attended an Episcopal church after his marriage, returned to Catholicism later in the 1990s. At this point, the four remaining Protestant justices—Rehnquist, Stevens, O'Connor, and Souter—remained a plurality on the Court, but for the first time in the history of the Court, Protestants were no longer an absolute majority.
The first Catholic plurality on the Court occurred in 2005, when Chief Justice Rehnquist was succeeded in office by Chief Justice John Roberts, who became the fourth sitting Catholic Justice. On January 31, 2006, Samuel Alito became the fifth sitting Catholic Justice, and on August 6, 2009, Sonia Sotomayor became the sixth. By contrast, there has been only one Catholic U.S. President, John F. Kennedy (unrelated to Justice Kennedy), and one Catholic U.S. Vice President, Joe Biden, and there has never been a Jewish U.S. President or Vice President.
At the beginning of 2010, Justice John Paul Stevens was the sole remaining Protestant on the Court. In April 2010, Justice Stevens announced his retirement, effective as of the Court's 2010 summer recess. Upon Justice Stevens' retirement, which formally began on June 28, 2010, the Court lacked a Protestant member, marking the first time in its history that it was exclusively composed of Jewish and Catholic justices. The shift to a completely non-Protestant court occurred because President Ronald Reagan appointed mostly Catholics to the Court, because President George H.W. Bush appointed a Justice who converted back to Catholicism, and because Bill Clinton, George W. Bush, and Barack Obama appointed only non-Protestant justices.
This development has led to some comment. Law school professor Jeffrey Rosen wrote that "it's a fascinating truth that we've allowed religion to drop out of consideration on the Supreme Court, and right now, we have a Supreme Court that religiously at least, by no means looks like America".
Religions that have never been represented
A number of sizable religious groups have had no justices appointed from their group. These include Orthodox Christians, Mormons, Pentecostals, Muslims, Hindus, Buddhists, and Sikhs. George Sutherland has been described as a "lapsed Mormon" because he was raised in the LDS Church, his parents having immigrated to the United States during Sutherland's infancy to join that church. Sutherland's parents soon left the LDS Church and moved to Montana. Sutherland himself also disaffiliated with the faith, but remained in Utah and graduated from Brigham Young Academy in 1881, the only non-Mormon in his class. In 1975, Attorney General Edward H. Levi had listed Dallin H. Oaks, a Mormon who had clerked for Earl Warren and was then president of Brigham Young University, as a potential nominee for Gerald Ford. Ford "crossed Oaks's name off the list early on, noting in the margin that a member of the LDS Church might bring a 'confirmation fight'".
Nor has a person publicly known to be an atheist ever been appointed to the Court, although some justices have been noted as declining to engage in any manner of religious activity. As an adult, Benjamin Cardozo no longer practiced his faith and identified himself as an agnostic, though he remained proud of his Jewish heritage.
Unlike the offices of President, U.S. Representative, and U.S. Senator, there is no minimum age for Supreme Court justices set forth in the United States Constitution. However, justices tend to be appointed after having made significant achievements in law or politics, which excludes many young potential candidates from consideration. At the same time, justices appointed at too advanced an age will likely have short tenures on the Court.
The youngest justice ever appointed was Joseph Story, 32 at the time of his appointment in 1812; the oldest was Charles Evans Hughes, who was 67 at the time of his appointment as Chief Justice in 1930. (Hughes had previously been appointed to the Court as an associate justice in 1910, at the age of 48, but had resigned in 1916 to run for president.) Story went on to serve for 33 years, while Hughes served 11 years after his second appointment. The oldest justice at the time of his initial appointment was Horace Lurton, 65 at the time of his appointment in 1909. Lurton died after only four years on the Court. The oldest sitting justice to be elevated to Chief Justice was Hughes' successor, Harlan Fiske Stone, who was 68 at the time of his elevation in 1941. Stone died in 1946, only five years after his elevation.
Of the justices currently sitting, the youngest at time of appointment was Clarence Thomas, who was 43 years old at the time of his confirmation in 1991. As of the beginning of the 2010-11 term, Elena Kagan was the youngest justice sitting, at 50 years of age. The oldest person to have served on the Court was Oliver Wendell Holmes, Jr., who stepped down two months shy of his 91st birthday. John Paul Stevens, second only to Holmes, left the court in June 2010, two months after turning 90.
The average age of the Court as a whole fluctuates over time with the departure of older justices and the appointment of younger people to fill their seats. As of April 2009, the average age of the justices was 69 years. Just prior to the death of Chief Justice Rehnquist in September 2005, the average age was 71. After Sonia Sotomayor was appointed in August 2009, the average age at which current justices were appointed was about 53 years old.
The longest period of time in which one group of justices has served together occurred from August 3, 1994, when Stephen Breyer was appointed to replace the retired Harry Blackmun, to September 3, 2005, the death of Rehnquist, totaling 11 years and 31 days. From 1789 until 1970, justices served an average of 14.9 years. Those who have stepped down since 1970 have served an average of 25.6 years. The retirement age had jumped from an average of 68 pre-1970 to 79 for justices retiring post-1970. Between 1789 and 1970 there was a vacancy on the Court once every 1.91 years. In the next 34 years since the two appointments in 1971, there was a vacancy on average only once every 3.75 years. The typical one-term president has had one appointment opportunity instead of two.
Commentators have noted that advances in medical knowledge "have enormously increased the life expectancy of a mature person of an age likely to be considered for appointment to the Supreme Court". Combined with the reduction in responsibilities carried out by modern justices as compared to the early justices, this results in much longer potential terms of service. This has led to proposals such as imposing a mandatory retirement age for Supreme Court justices and predetermined term limits.
Although the Constitution imposes no educational background requirements for federal judges, the work of the Court involves complex questions of law—ranging from constitutional law to administrative law to admiralty law—and consequentially, a legal education has become a de facto prerequisite to appointment on the Supreme Court. Every person who has been nominated to the Court has been an attorney.
Before the advent of modern law schools in the United States, justices, like most attorneys of the time, completed their legal studies by "reading law" (studying under and acting as an apprentice to more experienced attorneys) rather than attend a formal program. The first Justice to be appointed who had attended an actual law school was Levi Woodbury, appointed to the Court in 1846. Woodbury had attended Tapping Reeve Law School in Litchfield, Connecticut, the most prestigious law school in the United States in that day, prior to his admission to the bar in 1812. However, Woodbury did not earn a law degree. Woodbury's successor on the Court, Benjamin Robbins Curtis, who received his law degree from Harvard Law School in 1832, and was appointed to the Court in 1851, was the first Justice to bear such a credential.
Associate Justice James F. Byrnes, whose short tenure lasted from June 1941 to October 1942, was the last Justice without a law degree to be appointed; Stanley Forman Reed, who served on the Court from 1938 to 1957, was the last sitting Justice from such a background. In total, of the 112 justices appointed to the Court, 47 have had law degrees, an additional 18 attended some law school but did not receive a degree, and 47 received their legal education without any law school attendance.
Not only have all justices been attorneys, nearly two thirds had previously been judges. As of 2010[update], eight of the nine sitting justices previously served as judges of the United States Courts of Appeals, while the most recent appointment, Justice Elena Kagan, served as Solicitor General, the attorney responsible for representing the federal government in cases before the Court. Few justices have a background as criminal defense lawyers, and Thurgood Marshall is reportedly the last justice to have had a client in a death penalty case.
Historically, justices have come from some tradition of public service; only George Shiras, Jr. had no such experience. Relatively few justices have been appointed from among members of Congress. Six were members of the United States Senate at the time of their appointment, while one was a sitting member of the House of Representatives. Six more had previously served in the Senate. Three have been sitting governors. Only one, William Howard Taft, had been President of the United States. The last justice to have held elected office was Sandra Day O'Connor, who was elected twice to the Arizona State Senate after being appointed there by the governor.
The economic profile of the typical Supreme Court Justice has been described as "upper-middle to high social status: reared in nonrural but not necessarily urban environment, member of a civic-minded, politically active, economically comfortable family". Charles A. Beard, in his An Economic Interpretation of the Constitution of the United States, profiled those among the justices who were also drafters of the Constitution.
James Wilson, Beard notes, "developed a lucrative practice at Carlisle" before becoming "one of the directors of the Bank of North America on its incorporation in 1781". A member of the Georgia Land Company, Wilson "held shares to the amount of at least one million acres". John Blair was "one of the most respectable men in Virginia, both on account of his Family as well as fortune". Another source notes that Blair "was a member of a prominent Virginia family. His father served on the Virginia Council and was for a time acting Royal governor. His granduncle, James Blair, was founder and first president of the College of William and Mary." John Rutledge was elected Governor of South Carolina at a time when the Constitution of that state set, as a qualification for the office, ownership of "a settled plantation or freehold ... of the value of at least ten thousand pounds currency, clear of debt". Oliver Ellsworth "rose rapidly to wealth and power in the bar of his native state" with "earnings... unrivalled in his own day and unexampled in the history of the colony", developing "a fortune which for the times and the country was quite uncommonly large". Bushrod Washington was the nephew of George Washington, who was at the time of the younger Washington's appointment the immediate past President of the United States and one of the wealthiest men in the country.
It has been noted that "[a]bout three-fifths of those named to the Supreme Court personally knew the President who nominated them". There have been exceptions to the typical portrait of justices growing up middle class or wealthy. For example, the family of Sherman Minton went through a period of impoverishment during his childhood, resulting from the disability of his father due to a heat stroke.
In 2008, seven of the nine sitting justices were millionaires, and the remaining two were close to that level of wealth. Historian Howard Zinn, in his 1980 book A People's History of the United States, argues that the justices cannot be neutral between the rich and the poor, as they are almost always from the upper class. Chief Justice Roberts is the son of an executive with Bethlehem Steel; Justice Stevens was born into a wealthy Chicago family; and Justices Kennedy and Breyer both had fathers who were successful attorneys. Justices Alito and Scalia both had educated (and education-minded) parents: Scalia's father was a highly-educated college professor and Alito's father was a high school teacher before becoming "a long-time employee of the New Jersey state legislature". Only Justices Thomas and Sotomayor have been regarded as coming from a lower-class background. One authority states that "Thomas grew up in poverty. The Pin Point community he lived in lacked a sewage system and paved roads. Its inhabitants dwelled in destitution and earned but a few cents each day performing manual labor". The depth of Thomas' poverty has been disputed by suggestions of "ample evidence to suggest that Thomas enjoyed, by and large, a middle-class upbringing".
Beginning in 1979, the Ethics in Government Act of 1978 required federal officials, including the justices, to file annual disclosures of their income and assets. These disclosures provide a snapshot into the wealth of the justices, reported within broad ranges, from year to year since 1979. In the first such set of disclosures, only two justices were revealed to be millionaires: Potter Stewart and Lewis F. Powell, with Chief Justice Warren Burger coming in third with about $600,000 in holdings. The least wealthy Justice was Thurgood Marshall.
The 1982 report disclosed that newly appointed Justice Sandra Day O'Connor was a millionaire, and the second-wealthiest Justice on the Court (after Powell). The remaining justices listed assets in the range of tens of thousands to a few hundred-thousand, with the exception of Thurgood Marshall, who "reported no assets or investment income of more than $100". The 1985 report had the justices in relatively the same positions, while the 1992 report had O'Connor as the wealthiest member of the Court, with Stevens being the only other millionaire, most other justices reporting assets averaging around a half million dollars, and the two newest justices, Clarence Thomas and David Souter, reporting assets of at least $65,000.
The 2007 report was the first to reflect the holdings of John Roberts and Samuel Alito. Disclosures for that year indicated that Clarence Thomas and Anthony Kennedy were the only justices who were clearly not millionaires, although Thomas was reported to have signed a book deal worth over one million dollars. Other justices reported holdings within the following ranges:
|Justice||Lowest range||Highest range|
|John Paul Stevens||$1,100,000||$3,500,000|
|Ruth Bader Ginsburg||$5,000,000||$25,000,000|
The financial disclosures indicate that many of the justices have substantial stock holdings. This, in turn, has affected the business of the Court, as these holdings have led justices to recuse themselves from cases, occasionally with substantial impact. For example, in 2008, the recusal of John Roberts in one case, and Samuel Alito in another, resulted in each ending in a 4-4 split, which does not create a binding precedent. The Court was unable to decide another case in 2008 because four of the nine justices had conflicts, three arising from stock ownership in affected companies.
- List of United States Supreme Court Justices who also served in Congress
- List of Justices of the Supreme Court of the United States by education
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- See also Kreimendahl, Ilka (2002) Appointment and Nomination of Supreme Court Justices (Scholarly Paper, Advanced Seminar), Amerikanische Entwicklung im Spiegel ausgewählter Entscheidungen des Supreme Court, University of Kassel 32 pages.
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- Kermit Hall, James W. Ely, Joel B. Grossman, The Oxford Companion to the Supreme Court of the United States (2005), p. 710; all other foreign born justices were born in English-speaking countries, except Brewer, who moved from Turkey to the United States while still in his infancy.
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- Nina Totenberg, "Supreme Court May Soon Lack Protestant Justices," NPR, Heard on Morning Edition, April 7, 2010, found at NPR website and transcript found at NPR website. Cited by Sarah Pulliam Bailey, "The Post-Protestant Supreme Court: Christians weigh in on whether it matters that the high court will likely lack Protestant representation," Christianity Today, April 10, 2010, found at Christianity Today website. Also cited by "Does the U.S. Supreme Court need another Protestant?" USA Today, April 9, 2010, found at USA Today website. All accessed April 10, 2010.
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- Religious affiliation of Supreme Court justices Justice Sherman Minton converted to Catholicism after his retirement. James F. Byrnes was raised as Catholic, but became an Episcopalian before his confirmation as a Supreme Court Justice.
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- This individual was elevated from Associate Justice to Chief Justice. Unlike the inferior courts, the Chief Justice is separately nominated and subject to a separate confirmation process, regardless of whether or not (s)he is already an Associate Justice.
- Deaths in senior status seem to cause confusion. There are two types of retirement: in the first type, the justice resigns his appointment in return for a pension, and the "Reason Appointment Terminated" is marked as "retirement". In the second type of retirement, called senior status, the justice's appointment does not end. Instead, the justice accepts a reduced workload on an inferior court. For instance, Stanley F. Reed was frequently assigned to the Court of Claims when he was in senior status. As of 2006[update], every justice except Charles Evans Whittaker who has assumed senior status has died in it; in that case, the judge will have the "Reason Appointment Terminated" as "death", even though they retired from the court before they died.
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- The constitutionally of those portions of the Act requiring federal judges to disclose their income and assets were themselves challenged in a United States federal court, and were held to be constitutional. Duplantier v. United States, 606 F.2d 654 (5th Cir. 1979), cert. denied, 449 U.S. 1076 (1981).
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