Alito’s Wrong. Attacks on the Supreme Court Are Nothing New

Responding to accusations that members of the US Supreme Court have committed serious ethical lapses, Justice Samuel Alito complained to the Wall Street Journal April 28 that the accusations were unfair. “[T]his kind of concerted attack on the court and on individual justices,” he asserted, was “new during my lifetime.”

His effort to portray these recent criticisms of the justices as unprecedented, however, starkly contrasts with the actual history of the Supreme Court, which has long been a lightning rod in American life.

From its earliest years, Supreme Court justices were singled out for harsh criticism. After negotiating a treaty with Great Britain in 1794, Chief Justice John Jay returned home to find his countrymen furiously denouncing him. The protests were so widespread that Jay joked he could have ridden his horse at night from Boston to Philadelphia with only the light of the burning effigies showing him the way.

A decade later, Justice Samuel Chase, a fiery Federalist known for partisan rhetoric, was impeached by the House of Representatives. And so it went.

As the Supreme Court became more prominent in the twentieth century, attacks on justices were even more commonplace. When a conservative majority struck down New Deal agricultural supports in 1936, for instance, farmers in Iowa hanged life-sized effigies of the six justices responsible.

Even if Alito is only concerned with attacks on the court and individual justices “during [his] lifetime”—that is, since 1950—there are countless examples.

The Warren Court, quite famously, stood as a regular target for conservatives who were outraged by its liberal rulings on civil rights and criminal rights. Its landmark ruling in the school desegregation case of Brown v. Board of Education was met by a segregationist campaign of “massive resistance” against the decision.

In 1956, 19 senators and 77 members of the House issued the “Southern Manifesto” which denounced the Brown ruling as illegitimate and claimed the unanimous members of the Supreme Court “undertook to exercise their naked judicial power and substituted their personal political and social ideas for the established law of the land.”

Attacks on the Warren Court, in whole or in part, only accelerated from there. “Cries of alarm are not restricted to the South,” argued Representative Owen Lattimer in 1960. “They come from every part of the United States. Curb the Supreme Court. Abolish the Supreme Court. Impeach the justices of the Supreme Court.”

When the Supreme Court struck down state-mandated prayers in public schools in 1962, Justice Hugo Black, the author of the opinion, received enough angry mail to fill 10 archival boxes. “One woman condemned Hugo to Hell,” his wife remembered. A chastened Black called the deluge of denunciations “a real education.”

As the Warren Court moved to establish protections for criminals and criminal suspects with a series of landmark cases in the mid-1960s, the assaults on it picked up in speed and intensity. The John Birch Society erected hundreds of billboards across the country that implored Americans to “Save Our Republic! Impeach Earl Warren.”

While Chief Justice Warren was never impeached, two other members of that court came close.

Republicans accused Justice Abe Fortas, whom close friend President Lyndon B. Johnson had tapped to succeed Warren as chief, of ethical misconduct for accepting a $15,000 fee for speaking engagements at a university. When Senate conservatives mounted a filibuster against his nomination for chief justice, Fortas asked Johnson to withdraw his name.

His opponents continued to press the attack, however, seizing on another revelation that Fortas had also agreed to a lifetime stipend of $20,000 a year for offering unspecified advice to Wall Street financier Louis Wolfson. When they threatened to launch an impeachment proceeding in 1969, Fortas resigned from the court entirely.

Justice William O. Douglas—who had already confronted calls for impeachment in 1953 for issuing a temporary stay in the execution case of Julius and Ethel Rosenberg—faced a similar effort in 1970. Douglas, strapped for money after several costly divorces, had taken on an aggressive schedule of speaking and writing engagements.

Seeing similarities to Fortas’ financial improprieties, House Minority Leader Gerald Ford led the case to impeach Douglas and remove him from the bench as well. In a 1970 address, Ford cited the canon of ethics of the American Bar Association: “A judge should not accept inconsistent duties; nor incur obligations, pecuniary or otherwise, which will in any way interfere or appear to interfere with his devotion to the expeditious and proper administration of his official function.”

A judge’s “personal behavior,” Ford quoted, “should be beyond reproach.” At his urging, the House launched an impeachment inquiry into Douglas, but ultimately abandoned it without a public vote.

Three years later, with the landmark abortion rights ruling in Roe v. Wade, critics lambasted the court once again. A Catholic leader denounced the decision as a “terrifying use of judicial power,” while parish flags flew at half-mast in mourning.

Justice Harry Blackmun, author of the opinion, found protesters with picket signs outside his public events. At a commencement address in Pennsylvania, a pro-life organization furious at “the wholesale slaughter of unborn infants now taking place as a result of the court opinion by Justice Blackmun” paraded with infant-sized coffins.

Samuel Alito, who was at this time a Catholic student at Yale Law School, surely must remember at least this bit of history from his own lifetime.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Kevin M. Kruse is a professor of history at Princeton University.

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