Extrajudicial Activities

Extrajudicial Activities The participation of justices in activities outside the normal duties of the judicial office has been an issue throughout the institutional life of the Supreme Court. Such extrajudicial activities have occurred in two broad subject matter categories. The first, and the focus of greatest scholarly as well as public interest, involves the acceptance of a position of national or international consequence that is clearly not within the scope of the regular duties of the judicial office. The second, which generally stimulates little interest outside of legal circles, involves private activities undertaken in addition to the regular duties of a justice. These public and private extrajudicial activities have often provoked distinct types of praise or criticism. But both have been the targets of one recurring attack. Put simply, any outside obligation may drain attention and energy that should be devoted to the significant burdens of the judicial office. This criticism has often been expressed by members of the Court and was stressed by Chief Justices William Howard Taft and Harlan Fiske Stone in the twentieth century.

The desirability and legitimacy of extrajudicial activities was debated occasionally at the Constitutional Convention of 1787. For future opponents of such activities, the convention's rejection of a proposal for the judicial sharing of presidential veto power over legislation was deemed definitive of the opinion of the framers of the Constitution. But a close examination of Convention opinion about judicial involvement in nonjudicial matters suggests considerable flexibility on the issue. James Madison proposed creation of a Council of Revision consisting of the president “and a convenient number of the National Judiciary” to review acts of Congress. Supporters of Madison argued that lawmaking would benefit from use of judicial ability. Some opponents, conversely, suggested that judges should not participate in policy making because judges lacked knowledge of public policy matters. Other opponents of the Council of Revision rejected formal judicial participation in what became the presidential veto, but supported ad hoc extrajudicial activities on the ground that judicial talent and legal ability would be valuable to the other branches.

Immediately after the adoption of the Constitution in 1789, Congress and the president assigned or recommended extrajudicial tasks for members of the Supreme Court. The first ten years of the Supreme Court was a seminal era regarding the theory and practice of extrajudicial activity. In theory, the principle of separation of powers would provide a clear definition. But in practice, the earliest justices did not make a definitive ruling on the issue despite the variety of interpretations given in Hayburn's Case (1792). Congress specified the judges of the federal circuit courts as the evaluators of injured Revolutionary War veterans' pension qualifications. Since, under the Judiciary Act of 1789, there were no separate circuit judges, the federal district judges and justices of the Supreme Court were to fulfill these responsibilities while on circuit court duty (see Circuit Riding). The statute required the circuit judges to examine not only the documents determining Revolutionary War military service but also the wounds to determine the seriousness of the injury, a duty not commonly deemed judicial. The findings were to be reported to the secretary of war who could review the determination of the circuit judges and send a report to Congress recommending rejection of the judges' findings. The subsequent letters from the judges of the three federal circuits declining to fulfill these tasks noted the nonjudicial nature of the duties, the lack of a constitutional basis for such assignment to the circuit judges, and the subjection of the judges' findings to review by a nonjudicial cabinet officer. The objections were grounded in separation of powers theory.

Despite this rejection, the earliest justices participated in a number of presidentially or congressionally requested extrajudicial tasks that were beyond the scope of judicially deciding cases or controversies. One 1790 law required judges to determine, after investigation, the validity of fine or forfeiture remission claims by persons guilty of unintentional customs violations. Like the rejected veterans' pension procedure, the judges were required by statute to report their findings to a Cabinet officer, in this instance the secretary of the treasury. Another 1790 law required judges to evaluate petitions from seamen regarding the safety of their ships. The judges were to designate maritime experts to examine the vessels and, on the basis of their report, determine whether the ships were fit to proceed on their intended voyage. A 1795 act placed the task of determining whether aliens met the naturalization requirements established by Congress upon the judges (see Alienage and Naturalization).

Acquiescence in these tasks did not, however, extend to all congressionally or presidentially assigned tasks. Presidential requests for advice from the justices began with George Washington and have been repeated through two centuries. Two examples from Washington's era illustrate the complexity of the issue. Then as now, requests for advice from the justices about the problems of the federal judicial system poised no separation of powers problems. Thus, Washington's 1790 request for advice on the operation of the federal court system was answered readily with a critical appraisal including the accurate observation that judging at two interrelated court levels was “unfriendly to impartial justice.” Conversely, when Washington requested the justices to accept a role as permanent advisers on matters of international law, the justices declined on several grounds, separation of powers chief among them. The prospect of obligating future justices to this advisory role and the possibility that an advisory opinion would harden into an actual judicial position were also concerns. Notwithstanding the reservations clearly expressed in these early positions, Chief Justices John Jay and Oliver Ellsworth both accepted important diplomatic tasks that not only detracted from their regular judicial obligations but also thrust them, especially the former, into heated political controversy.

Beginning in the first decade of the Supreme Court, members of the Court were called upon to fill a wide range of ad hoc public positions of the Court. The most visible and controversial were the diplomatic missions of Chief Justices Jay and Ellsworth noted above. The rigors of transatlantic travel and the mission severely affected Ellsworth's health, leading to his retirement. Congress also imposed upon Jay duties as a sinking fund commissioner and as an inspector of coins minted by the United States, tasks he performed intermittently, indicating that judicial duties were paramount.

Chief Justice John Marshall was nominally engaged in these previously established ex officio duties, but was not called upon to engage in new tasks. Only three other justices participated in public missions prior to the Civil War. Associate Justice Henry Baldwin took part in an investigation of General Andrew Jackson's campaign against the Seminole Indians. On the eve of the Civil War, Justices Samuel Nelson and John Archibald Campbell served as intermediaries to the Confederacy to avert the outbreak of hostilities.

Public extrajudicial roles became more frequent after the Civil War. Appointed by President Ulysses S. Grant in 1871, Nelson served on a Geneva Commission to arbitrate U.S. claims against Great Britain for permitting the building and refitting of Confederate men‐of‐war. The selection of five Supreme Court members to the 1876 Electoral Commission that ultimately settled the Hayes‐Tilden presidential contest on strictly partisan lines did not enhance the Court's reputation. Justice Stephen J. Field was a member of a California Commission on the Revision of State Statutes. In the late nineteenth century, Chief Justice Melville W. Fuller and Justice David J. Brewer served as boundary arbitrators in a dispute between Venezuela and British Guiana and Justice John Marshall Harlan served as an arbitrator in the Fur Seal Arbitration proceedings. In 1911, Justice Charles Evans Hughes served on a commission to set second class postal rates. In the 1920s, Justice William R. Day served on an American‐German war claims commission. In 1930, Chief Justice Hughes chaired a special tribunal to settle a border dispute between Guatemala and Honduras. Willis Van Devanter was an arbitrator in an American‐British dispute over the seizure of the vessel I'm Alone. Justice Owen J. Roberts served on a Mexican claims commission and during World War II in the investigation of the Pearl Harbor preparedness issue. After the war, President Harry Truman appointed Justice Robert H. Jackson prosecutor in the Nuremberg War Trials. President Lyndon B. Johnson persuaded Chief Justice Earl Warren to chair the commission investigating the assassination of President John F. Kennedy. The enduring ex officio extrajudicial roles of the chief justice have been chairing the board of trustees of the National Gallery of Art and serving as chancellor of the Board of Regents of the Smithsonian Institution.

In contrast to the type of extrajudicial tasks assigned by congressional legislation or presidential assignments, a wide range of public and private activities have been generated by individual justices. These included the practice of providing advice to presidents or, occasionally, to members of Congress as well as outright lobbying efforts. Most examples of such activity were not publicly known and so did not stimulate adverse criticism. Several instances, however, did become public and aroused partisan or professional concerns. Early nineteenth‐century examples include Justice Joseph Story's communication to President Madison regarding the nationalization of state militia, William Johnson's lobbying efforts for improved harbor fortifications for Charleston, South Carolina, and Justice Thomas Todd's consultations with congressional war hawks. Joseph Story made extensive contacts with executive officials and members of Congress including Attorney General William Pinkney and Daniel Webster in order to push for judicial legislation and occasionally provided draft statutes to his legislative contacts. Many other members of the Court privately advised or consulted with presidents and members of Congress. Some, such as John Marshall, engaged in writing anonymous political letters to newspapers. Usually advice to presidents remained private but Justice John Catron's to President James Buchanan on the outcome of the Dred Scott decision became an open political issue as did Justice Abe Fortas's advice to President Lyndon B. Johnson on the Vietnam War, the Detroit riots, and other domestic issues.

Several justices have sought presidential nominations while on the Supreme Court. In the nineteenth century Justice John McLean and Chief Justice Salmon P. Chase both unsuccessfully pursued the presidency. The only justice actually to win a nomination, Justice Charles Evans Hughes, lost the general election but returned to the Court as chief justice. Hughes, however, had observed the proprieties and had resigned from the Court before running. Members of the Court have, on a number of occasions, sought to influence the selection of new members by recommendations to a president or by holding a seat until a president of their own party or ideological inclination took office. Republican Chief Justice Earl Warren's mode of resignation—an announced delay until President Johnson's selection of his successor—precipitated a firestorm of conservative and Republican resistance, in part because Warren provided an opportunity for a president of the opposite party to chose his successor when the Republican Party hoped for victory in 1968. President Johnson's nominee, Justice Abe Fortas, became the center of the most extensive reexamination of the propriety of extrajudicial activities in modern times. His presidential consultations noted above, his acceptance of a $15,000 fee for a law school seminar lecture, and his involvement in executive statutory proposals all contributed to his withdrawal as nominee. Subsequently, the disclosure of his financial relationship with the private foundation of indicted financier Louis W. Wolfson led to his resignation from the Supreme Court (see Fortas Resignation).

The disclosure of Fortas's financial arrangement with Wolfson underscores a dimension of extrajudicial activity that rarely receives media attention. This includes matters relating to personal finances or combined money earning. Joseph Story, for example, taught classes at Harvard University Law School and also served as a bank officer in Salem. Justice Samuel Blatchford edited and sold collections of decisions of the federal circuit on which he served in the nineteenth century.

One of the most interesting modern examples of extensive but discreet extrajudicial activity was that of Associate Justice Louis Brandeis. For more than two decades, Brandeis engaged in extensive efforts to guide American domestic policy toward the fulfillment of a number of progressive goals and to steer American foreign policy toward favorable responses to Zionist objectives. A number of biographers agreed that Brandeis's extrajudicial activities conducted through a surrogate, future justice Felix Frankfurter, violated the very institutional proprieties both justices publicly extolled. Brandeis privately financed Frankfurter for approximately two decades, facilitating a continuous effort to influence domestic and foreign policy occasionally in areas highly likely to come before the federal courts.

Extrajudicial activity, whether arising out of the private activities of individual justices or from congressional statutes or presidential appointments, raises two fundamental questions. Depending upon the circumstances, one question involves conflict of interest or conflict of principle. A justice may recuse himself if a real or potential conflict of interest is self‐defined or may, albeit rarely, be challenged by an attorney to step down. Conflicts of principle may occur where separation of powers issues are inherent in the situation. Appearance of potential conflict of interest or potential bias received attention in the nineteenth and early twentieth centuries because of the close association of some members of the Court, such as Stephen J. Field, with powerful corporate leaders. A more contemporary issue involves membership in private clubs that discriminate on the basis of race, ethnicity, religion, or gender.

The second question, noted earlier, has received increasing attention in the twentieth century when the overall caseload of the Supreme Court has steadily grown. Chief Justices Edward D. White, Taft, and Stone, expressed strong concern over the serious effect of taking justices away from the constant task of keeping up with the heavy caseload of the Court.

See also Judicial Ethics.

Bibliography

Walter J. Cibes, Jr., Extrajudicial Activities of the United States Supreme Court, 1790–1960 (Ph.D. diss., Princeton University, 1975).
Alpheus Thomas Mason , Proprieties, in Harlan Fiske Stone: Pillar of the Law (1956), pp. 698–722.
Bruce Allen Murphy , The Brandeis‐Frankfurter Connection (1982).
Russell Wheeler , Extrajudicial Activities of the Early Supreme Court, in 1973 Supreme Court Review, pp. 123–158.

John R. Schmidhauser