Summer of SCOTUS 2: Interpersonal Relationships

Show Notes

Aughie and Nia discuss the interpersonal relationships of Justices of the US Supreme Court. From friendships to enemies, some of the more interesting relationships are revealed.

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Announcer: Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.

N. Rodgers: Hey, Aughie.

J. Aughenbaugh: Morning, Nia. How are you?

N. Rodgers: I'm good. How are you?

J. Aughenbaugh: I'm fine. Thank you.

N. Rodgers: I'm excited.

J. Aughenbaugh: Why are you excited, Nia?

N. Rodgers: Because this is another summer of SCOTUS. Except we're not talking about cases most of this summer. We're going to do a wrap up towards the end of the summer of the big happenings, which maybe a two-parter, folks, because there's been a lot of happenings. But really, this summer, we're actually talking about the justices. Today's episode, we're going to do the personal interplay, but we're also going to talk about the myths of merit and the diversity and lots of other things about the justices themselves, because in previous summer of SCOTUS, we did all cases. If you're listening to this and you're going, "Oh, man. They're going to go through a bunch of cases again," and you don't like that, nope, we're saving you from that. We will warn you, in the last two episodes, so stop listening if you don't want to hear about all the cases.

J. Aughenbaugh: Yeah. We're like going behind the curtain with a lot of these episodes. Once again, a nice wizard of Oz reference. Let's see how many podcast episodes where we can actually make that reference.

N. Rodgers: Challenge taken.

J. Aughenbaugh: We're going behind the curve. We're whatever your preferred metaphor, we're lifting up the veil. We're going in and looking at some things you may have wondered about the court and that's what we're going to do with this series of summer of SCOTUS episodes.

N. Rodgers: So my first question to you, or my first statement to you is, so the justices all adore each other. They all get along. They love each other. Everything is fabulous. End of discussion.

J. Aughenbaugh: Not quite.

N. Rodgers: Aughie made notes and we're going to get into some of the more personal relationships with individuals. But he has a phrase in here that some of FDR's appointments did not get along personally or professionally and were referred to as, and I quote, "nine scorpions in a bottle."

J. Aughenbaugh: Yes.

N. Rodgers: I love that image. First of all, who the heck could get nine scorpions in a bottle, that's dangerous to start with. Well done you, FDR. But also, it's a perfect image because they really are in a very small, very apparent like there's no hiding the justices when they're sitting on bonk. When they're sitting up there together. There's no hiding if they don't like each other. There's no hiding if there's interpersonal difficulties because they are right up there together.

J. Aughenbaugh: It is a unique work situation.

N. Rodgers: Yes.

J. Aughenbaugh: It's been described a lot of different ways.

N. Rodgers: That's an excellent point. There's nothing like it.

J. Aughenbaugh: There is nothing like it. Because federal judges are living longer and are serving longer, some of these justices on the Supreme Court are working together for 15, 20, 25 years. It is almost like a marriage. They are together so long and as you pointed out, Nia, on one hand, a lot of their work is behind closed doors. On the other hand, they have a very public aspect to their work when they all assume the bench and have oral arguments and then when they published their opinions. It's very easy for us to go ahead and say, well, I don't know what's going on behind closed doors, but it doesn't look like this justice and that justice is getting along. But some of them do. But we've had situations where they didn't and you mentioned one of the classic ones to where the assumption was that because FDR, by the time he died in office, his fourth term as president, he had essentially picked all nine of the justices. He had promoted one of the sitting justices to chief but the other eight, he had picked. The assumption was because FDR had picked them, they would all get along and they didn't.

N. Rodgers: Well, you regularly say on this podcast and listeners have heard this many times. These people had been told they are the smartest people in the room for their entire life and then all of a sudden, they get on the Supreme Court and somebody says, you being here all right.

J. Aughenbaugh: For some cases, the justices are openly dismissive of one another.

N. Rodgers: Right. Then they must be that you go from being the highest of the high to being just another chuckle ahead among nine, thing.

J. Aughenbaugh: Unlike the rest of us, Nia, who have at times suffered great defeats in our life. Personally, professionally, a lot of these justices never have. When you get on a body to where you're just one of nine votes and you can't convince most of them to think like you do, you're ill-prepared.

N. Rodgers: Most of these justices as they were coming through law school, could probably talk circles around their colleagues.

J. Aughenbaugh: Oh, my goodness.

N. Rodgers: You know what I mean? Like they were used to winning in terms of moot and all that other stuff. They were used to and then they get on the court and somebody listens politely and then says, "Huh," and then moves on. You're like, "Wait, what do you mean, 'huh'?" and they're like, "Yeah, I don't agree." That's got to be very hard. In my job, there are nine of us. We're like a little Supreme Court except we're nothing like a Supreme Court. But if I suddenly took a dislike which by the way, it's not going to happen. I adore my colleagues. But if I suddenly took a disliking to this group of people, I could get another job, leave VCU or leave from within VCU, go to another part of VCU or whatever. There is no escape from the Supreme Court. Once you're there, you can't say, I'd like to transfer to the Supreme Court of France. It doesn't work that way. Your choice is die or retire.

J. Aughenbaugh: Yes.

N. Rodgers: You either wield yourself to death or you retire and you just quit because there's no other place for you to go. No Supreme Court justice, am I correct? Has ever said, just put me back on the federal bench?

J. Aughenbaugh: None of them have ever done that. None.

N. Rodgers: I think the closest one you're going to mention way later, one of the loners left earlier than probably was necessary because they were driving him bonkers and we'll get to that at a later podcast. But yeah, there's no quitting. It's this or nothing.

J. Aughenbaugh: It is an unusual work situation and because of the career path, when you get there, it can be extremely difficult. The first thing is it is monastery like, because the court historically has prided itself on speaking through the words of its opinion. It's very unusual to have very popular justices in the public consciousness, like we saw with Ginsburg and Scalia. If you get on the Supreme Court, you basically know that whatever aspirations you may have had politically, socially, etc, it ends there. Because again, that's the pinnacle for most of them, what they have been attempting to do with their professional lives.

N. Rodgers: You have a note in here that the most of the cases are decided 908,172, which means that your name is just one of seven listed on the bottom of the cake. You don't stand out, beyond the current justices. If you asked me to name an additional 10 justices, I'm not sure I could do it. I could probably name you five or six of the chiefs, because it's usually known as the Burger Court or the Warren Court or the Rehnquist court. I can name those and I could name your beloved Byron White because you've mentioned your beloved Byron White many times.

J. Aughenbaugh: Yes.

N. Rodgers: But I couldn't take him out of the lineup if I was required.

J. Aughenbaugh: Yeah. We may remember the first.

N. Rodgers: My beloved Sandra Day, the first woman.

J. Aughenbaugh: Who was the first woman? Who was the first African-American? Who was the first Hispanic justice? We can remember the first, but most of them are nameless and faceless for most Americans.

N. Rodgers: Right. They prefer it that way.

J. Aughenbaugh: Most of the justices do want that.

N. Rodgers: Faded into the group. The group decided and my name is part of the group.

J. Aughenbaugh: But when you're on that group, not everything is peachy. Not everything is great.

N. Rodgers: Let's start with good before we go to bad because you and I have a tendency to go negative.

J. Aughenbaugh: Yes.

N. Rodgers: Let's talk about the good first.

J. Aughenbaugh: Well, I mean, you can probably identify one of the most fascinating friendships on the court and it was of recent vintage.

N. Rodgers: Ginsburg and Scalia.

J. Aughenbaugh: Yes. You could not, individuals both in terms of personality, ideology, but they got along fabulously.

N. Rodgers: Physically.

J. Aughenbaugh: Yes.

N. Rodgers: Antonin Scalia was not a small man. He liked to eat. He was a healthy substantive person and Ruth Bader Ginsburg was tiny. She was tiny and thin. She was strong because she went to the gym every day. Like everything about them seemed to be opposite and yet they regularly went to the opera. They regularly drunk wine together.

J. Aughenbaugh: Their families spent New Year's Eves together. They did stuff with their spouses together.

N. Rodgers: Makes me happy.

J. Aughenbaugh: Then they both credit each other for improving the quality of their work and their professional experience. Scalia said a number of times. Scalia even recommended to somebody in the Obama administration, you guys should pick Elena Kagan to serve on the court because he thought so highly of her as solicitor general. He liked people who challenged him and Ruth Bader Ginsburg challenged him and likewise, Ruth Bader Ginsburg said, "He has a stinker. He rules completely opposite the way I do, but he made me a better writer and a better thinker as a justice." Just absolutely fabulous.

N. Rodgers: I would argue that Scalia is somewhat like you in that he really likes his female colleagues. He likes the differences in the way that men and women think and the way they approach problems. It's always fascinating to hear someone who has a different experience than you.

J. Aughenbaugh: You've heard this from me when we haven't been recording. I can trace it back to the fact that for most of my young life, I grew up with women. I have two sisters. I have a strong mom, I have a strong grandmother. They all think differently than I do. They perceive the world differently and they always called me out. I was just absolutely fascinated because they thought differently than I did and I loved it.

N. Rodgers: I get the feeling Scalia was like that.

J. Aughenbaugh: Yeah. He enjoyed it. We have other examples. I mentioned Justice Elena Kagan. She sits on the core, currently right beside Alito.

N. Rodgers: How is that arranged? J Rob sits in the middle, right?

J. Aughenbaugh: Yes, and then on each side of him are the two most senior Associate Justices. On one side would be Clarence Thomas, and on the other side would be Stephen Breyer. Then they basically fan out by tenure. Right now, Kagan can sits beside Alito.

N. Rodgers: Do they move around or do they always sit in the same spot?

J. Aughenbaugh: Well, yeah, they move around as you get new justices.

N. Rodgers: Right. But when you don't get new justices, if you're a static cord.

J. Aughenbaugh: Yes, you end up sitting beside somebody for a long period of time.

N. Rodgers: Okay. You will sit next to Alito until one of them retires from the bench or there's a new person that shuffles everybody?

J. Aughenbaugh: Yeah, because she may end up on the left of Roberts and Alito, ends up still staying on the right. But nevertheless, they've been sitting beside each other for a little while now. A number of Supreme Court reporters have commented they really like sparring with one another. Like he will get done asking a question and Kagan will just start smiling or she will go ahead and make a pithy response to a lawyer, and Alito can barely contain himself because he wants to go ahead and jump in. That's the thing you hope is going to go on with Supreme Court justices during oral arguments.

N. Rodgers: That it is lighthearted in the sense of it's playing off each other as opposed to, I feel the need to cut you off at the knees. Like that's the one you don't want. You don't want people who are brutal with each other, which we are going to get to eventually.

J. Aughenbaugh: Sotomayor has said, in a number of public speeches, she absolutely loves Clarence Thomas. Thinks he is one of the nicest individuals she has ever worked where encountered in real life.

N. Rodgers: Isn't he one of the few who is very friendly with the staff as well as?

J. Aughenbaugh: Yeah.

N. Rodgers: It's not a slam against the other justices but in the world of justices, the higher you go as a justice, the less you have to do with the janitorial staff, the less you have to do with the secretary pool, the less you have to do with what I think of is the classified staff that keep a courthouse running. You don't have as much to do with those people because you have your one or two clerks and you have your one court reporter that's always with you. I guess I've heard that rumor has it that he is.

J. Aughenbaugh: He knows everybody's name. From the lowliest janitor to the marshal of the court, he knows everybody. Says hi to everybody. Historically, and this is one of my favorite anecdotes about the Supreme Court. In the late 1950s through the early 1970s, two Supreme Court justices on the opposite end of the ideological spectrum ended up becoming such close friends that on their latter years on the court, as their health began to fail, they took care of each other. I'm talking about the second Justice Harlan and Justice Hugo Black. They could not have been any different, any more different, Nia. Harlan grew up, he was an elite. His grandfather served on the Supreme Court. He was an elite. He was educated in the Ivy Leagues, was a Rhodes scholar, he was a corporate Wall Street Attorney. Had his arm twisted by the Eisenhower administration to become a federal judge.

N. Rodgers: Because that was quite the pay cut.

J. Aughenbaugh: A huge pay cut. He was a frequent dissenter on the Warren Court. Hugo Black, on the other hand, never finished law school. He got a certificate of attending the University of Alabama. He was a former member of the KKK. He was a New Deal Democrat from the state of Alabama. You want to talk about being unusual?

N. Rodgers: Yeah.

J. Aughenbaugh: But he became the intellectual architect of the Warren Court revolution, and they became very good friends. At the end of their time on the court, as they both were beginning to fail physically, they took care of one another. I just loved those stories.

N. Rodgers: That's so nice.

J. Aughenbaugh: I love how when one of your faves, Sandra Day O'Connor was appointed to the Supreme Court, Lewis Powell, again, you want to talk about different individuals, they were similar in terms of their jurisprudence. Both of them were moderate conservatives. But Lewis Powell was born and raised in Richmond, Virginia. He was a certain gentleman. Sandra Day O'Connor was born and raised on a farm in West Texas. She was a farmer's daughter, she was a cattle rancher. She went to Stanford. She couldn't get a job out of law school. Lewis Powell never had to worry about getting a job. But when she got confirmed to sit on the Supreme Court, Lewis Powell took her under his wing and explained how the court operated, helped her when she began to get criticized from both liberals and conservatives on the court. Because Lewis Powell had been criticized by both liberals and conservatives on the court for being a moderate, for being a swing voter. I absolutely loved their relationship. She was devastated when he retired, and then when he eventually died, she was just devastated.

N. Rodgers: Now, in terms of romance, romance is not a thing on the Court. Most of justices are married, some of them multiple times, which we will get to in a moment. But this is not Peyton Place up and they're only nine people. You are probably not going to do the whole affair having failed.

J. Aughenbaugh: No.

N. Rodgers: We haven't really gotten a lot of that in terms of, okay, let me back up by saying the other two branches are not necessarily known for their fidelity meritory. But that's not a thing at the Supreme Court. Part of that is they're older and wiser and smarter. They know this is a tiny pool, and forgive my language, peeing in it is a terrible idea. That's part of it. The part of it is they come to the court with mostly stable relationships and that's people who are used to being married to a judge and know how about.

J. Aughenbaugh: Their spouses have freed them up to have that kind of singular focus to succeed the way they have. Ginsburg gave her husband, Martin, a whole bunch of credit. Scalia was just like, my wife ran our house. She made it easy for me to be a judge. That was a huge house because they had nine kids.

N. Rodgers: I love that Catholic upbringing.

J. Aughenbaugh: You would see a lot of that.

N. Rodgers: Did Sandra Day O'Connor date?

J. Aughenbaugh: When she was in law school at Stanford, she went out on two dates with another law school student, William Rehnquist.

N. Rodgers: That would be for anybody paying attention with the scorecard, Chief Justice William Rehnquist.

J. Aughenbaugh: But after a couple of dates, she made it very clear that she wasn't interested in him. Then started dating somebody else and she ended up marrying him, John O'Connor. But then when she was being considered by the Reagan administration for a vacancy on the Supreme Court, William Rehnquist, to his credit, made it known to the Reagan administration that he thought that she would be an excellent justice. Because the Rehnquist and the O'Connor's had known each other socially in the Arizona politics, conservative world and they got along fabulously.

N. Rodgers: But that's the closest we come to any sort romance.

J. Aughenbaugh: Yes.

N. Rodgers: Say a very early romance, but that's not a thing we see on the court. Even though we see good friends, we don't see good friends the way they refer to them in the other branches. That person is just my good friend.

J. Aughenbaugh: Nobody ever alleged that Ruth Bader Ginsburg in Antonin Scalia, anything more than a friendship.

N. Rodgers: I just wanted to clear that up because of all the salacious rumors, that in fact is not one of the ones that work. More salacious are what we're getting to now, which are the people who I'm going to say gently disliked each other. Would you say gently disliked or would you say something a little stronger?

J. Aughenbaugh: I would say something a little bit stronger but this is a family podcast. Probably the biggest, probably the most hated, the tested evil justice.

N. Rodgers: These aren't personal relationships in the sense that a lot of people disliked these people. We've had, I'm assuming, personal one-on-one.

J. Aughenbaugh: We will get to some of the personal one-on-ones. But probably, the most detested Supreme Court Justice was Justice McReynolds. He was appointed to the court in the 19 teens by Woodrow Wilson. By the way, as a progressive, but he gets on the court and he became a member of the conservative wing of the court. But what he was most noted for was he was a vehement anti-Semite. There were a couple of reported instances where he refused to sit for the Supreme Court group photo because two of his colleagues were Jews. Were talking about Justices Brandeis and Cardozo.

N. Rodgers: Brandeis who a college is named for.

J. Aughenbaugh: Yes.

N. Rodgers: Cardozo who many things are named for. These are highly respected.

J. Aughenbaugh: Their qualifications as justices, as legal talents, beyond the pale.

N. Rodgers: My opinion, and I read that in your notes and my first thought was then he shouldn't be a Supreme Court justice. Because if his views of his Jews colleagues, who he knew we're brilliant, he had to know right by reading their work, he had to know. If he wouldn't sit next to them in a photo how can any Jew before the court expect to get fair treatment from him? You said something interesting to me when I fusted you before we, because sometimes, by the way, listeners, I fusted Aughie before we start recording, and he's very patient with me.

J. Aughenbaugh: Well, no, rightfully so. But at that time, views about Jews in the United States were not as evolved as they are today. To give you a sense of this, Nia, you know, you just mentioned Louis Brandeis. Louis Brandeis, when he was nominated by Woodrow Wilson, his confirmation hearing was one of the most protracted for that day and time because there were members of the United States Senate who were openly against Jews. They're like, we can't have a Jew on our Supreme Court.

N. Rodgers: You pointed out something very smart, which I would like to because you reminded me I would like to remind listeners. This is 1914.

J. Aughenbaugh: Yes.

N. Rodgers: I'm viewing that through a 2022 lens of that guy should have been booted off the court.

J. Aughenbaugh: He should have never been considered.

N. Rodgers: As soon as he started acting like a dark face, that should have been the end of that. But that's the problem with non historians looking at historical things. I am not a historian, and so I have a tendency to view things through my current lens, which is, you can't serve because you have unreasonable views. In 1914.

J. Aughenbaugh: His views were not unreasonable in the society.

N. Rodgers: They were common.

J. Aughenbaugh: Yeah, there were common. Which is not to say that was correct. But I mean, understand too, that the United States government led by President Franklin Delano Roosevelt was well aware of what the Nazis were doing to the Jews in the 1830s. Basically, did not lift a finger to help them.

N. Rodgers: Right. That's their problem, not our problem. That's a global problem.

J. Aughenbaugh: Didn't even raise the immigration numbers of Jews who wanted to leave Germany, Poland, Austria, etc.

N. Rodgers: Well, and we returned refugee ship.

J. Aughenbaugh: Yes. The history of the United States treatment of outsiders of minorities has been despicable for most of the country's history. For a long period of time, there was a bias against having Catholics on the Supreme Court because they were open. The question was, would they be faithful to the law or would they be faithful to the Pope?

N. Rodgers: Which was the same question raised by Jew about JFK. We're going to talk about that when we talk about diversity on the court. The things is how we got a more diverse religious set of folks on the court. But I have to say your final point about him makes me happy. Isn't that terrible? I am a terrible human because it makes me happy that when he died, none of us went to his funeral?

J. Aughenbaugh: Yes. When Nick Reynolds died and he died just a few years after he retired from the Supreme Court, no member of the court showed up to his funeral.

N. Rodgers: I'm petty and that makes me happy. Sorry listeners.

J. Aughenbaugh: But that's highly unusual because again.

N. Rodgers: You feel obligated to go if you've served with people for many years.

J. Aughenbaugh: Again, in that unique work situation, even those justices that you may have fought with, they have probably earned your respect because they have been trying to do the same difficult job as you have been over a number of years. Nobody wanted to go.

N. Rodgers: I think they all turned up at Scalia's funeral, Even though he had at one point or another lacerated most of them in his opinions. I think they went because they respected that he stood up for himself and he stood up for what he believed and he was consistent. I'm petty that I'm so small inside that I'm like none of them went to his funeral. He got what he deserved, there you go.

J. Aughenbaugh: Again, I tried to remind my students of this. Don't be too hard because remember, they're humans too. The next one that I wanted to point out is Justice William O. Douglas, frequently referred to as Cowboy Bill because he was born and raised out west.

N. Rodgers: William O. Douglas looks like Oscar Douglas.

J. Aughenbaugh: Yes.

N. Rodgers: Is supposed to be O. Douglas with the Apostrophe?

J. Aughenbaugh: He was appointed to the Supreme Court by President Roosevelt.

N. Rodgers: It's okay to go ahead and say it, sorry, we're going to have a family cursing moment here, just bear with me.

J. Aughenbaugh: He was a pain in the butt. He was mercurial. He was smart. But there's quite a bit of evidence to suggest that he was disappointed that he was still on the Supreme Court the last roughly two decades he was on the court because at one point, he so desperately wanted to be nominated by the Democratic Party to be Roosevelt's vice president. Because Douglas harbored a desire to be president of the United States.

N. Rodgers: Okay.

J. Aughenbaugh: He sort of viewed being on the court as way station. Something that he would put up with until he could finally become president.

N. Rodgers: Wow. Where did he get that wrong? Can I just side note.

J. Aughenbaugh: Yes.

N. Rodgers: He had four wives.

J. Aughenbaugh: He had four wives. Yes.

N. Rodgers: I like that you have in here in your notes that two of them were much younger and former secretaries. When we were saying that romance has not happened at the Supreme Court, we mean romance between the justices. We don't mean potentially things like, I found a new secretary. She's delightful, I'll marry her or whatever. Because this is, probably has happened more than just him.

J. Aughenbaugh: Well, and this is a really good example of how times and morals change. Because we're recording a podcast episode in the era of Me Too.

N. Rodgers: Oh, my goodness.

J. Aughenbaugh: What goes on in the professional setting is greatly different that what went on in the 1940s, 50s, 60s, and well into the 1970s.

N. Rodgers: That's an excellent point.

J. Aughenbaugh: The heck for that matter, you could argue as recently as the 1990s.

N. Rodgers: That's an excellent point. Marrying your secretary back in the day.

J. Aughenbaugh: Was not unusual. Starting an affair with an employee that you obviously had power over was not unusual.

N. Rodgers: We've come a long way, baby.

J. Aughenbaugh: Yeah. Right. But he irritated his colleagues, he treated his clerks terribly. There were instances and multiple clerks have confirmed this. He would fire a clerk on a Friday, but he would expect them to come into work on Monday and when they didn't, he would get on the phone, and yell at them, asking them why they weren't at work, and this clerks would be like, but you've fired me on Friday and he was just like, I fire all my clerks. Get your blankity blank blank blank into the office because I have work for you to do.

N. Rodgers: Fired fired or am I not fired?

J. Aughenbaugh: He upset his colleagues so much because he frequently threatened to air the courts dirty laundry in public. He would threaten to write dissenting opinions explaining how the court actually processed the case. His colleagues would be like, "You can't do that. That's unacceptable behavior."

N. Rodgers: He was just an all around jerk?

J. Aughenbaugh: Yes. Probably the group that did not get along the most were the justices appointed by FDR. Again, the juxtaposition that four of these justices were appointed by FDR, and they just hated each other. They just could not stand each other personally, Nia.

N. Rodgers: These are the scorpions in the bottle.

J. Aughenbaugh: Yeah, these are the infamous scorpions in a bottle. So Douglas did not get along with his fellow nominee Robert Jackson or Felix Frankfurter. He thought Jackson didn't belong on the court, and he resented Felix Frankfurter, who was a Harvard Law professor, because Frankfurter was unwilling to be as liberal and as activist as Douglas. Frankfurter got on the nerves of basically all of his colleagues because he basically lectured them like he would his law students.

N. Rodgers: So he was condescending?

J. Aughenbaugh: Extremely.

N. Rodgers: Okay.

J. Aughenbaugh: He reserved his greatest condescension for Hugo Black, because Hugo Black never finished law school.

N. Rodgers: Well, I'm not surprised by that. I am not surprised that he would pull the elitist card of, I know more than you because I have graduated from a fancy schmancy law school and blah, blah, blah, blah. We see that today, we see that today with Harvard graduates versus, let's just say, I don't know, University of Richmond, that's not really a comparison but even that, they'll say, "Well, you just graduated from University of Richmond, I graduated from Harvard. To an elite school."

J. Aughenbaugh: You went to a state university, but I went to a private university, etc. We still see that elitism, but it was writ large at the Supreme Court, and it was made even more fascinating because the same president appointed all of these justices.

N. Rodgers: We're going to talk about that in our episode on the myth of merit.

J. Aughenbaugh: Yes.

N. Rodgers: We're touching on some themes now that we're going to come back in new episodes this summer.

J. Aughenbaugh: Robert Jackson got along with Frankfurter because they basically had the same judicial restraint perspective, but Jackson hated Black and Douglas, because he believed those two justices interceded with Truman when the Chief Justice position became vacant and scuttled Jackson's opportunity to become Chief Justice. Because there's quite a bit of historical evidence to suggest that when FDR appointed Jackson to the Supreme Court, FDR promised Jackson that the next time the Chief Justice position became vacant, FDR would promote him to be Chief Justice. Well, that did not happen when FDR was alive, it happened next when Truman became president. Truman picked somebody else, and Jackson was livid. Jackson was just like, "Okay, Black and Douglas must have gone to Truman and said, you can't appoint Jackson as Chief Justice."

N. Rodgers: Although it could just be the Truman knew and didn't want to do that.

J. Aughenbaugh: Well, Truman basic attitude was, I didn't make you that promise.

N. Rodgers: Exactly.

J. Aughenbaugh: My predecessor did.

N. Rodgers: My predecessor died before this position opened. I am not obligated.

J. Aughenbaugh: I'm not obligated. Jackson went public. He wrote an op-ed that got published in a bunch of newspapers. In the process, accused Hugo Black of conflict of interest, because Hugo Black participated in a case a couple of years earlier where one of the attorneys was Hugo Black's former law partner.

N. Rodgers: He didn't recuse himself.

J. Aughenbaugh: He didn't recuse himself and Jackson goes ahead and reports this.

N. Rodgers: Wow. Anybody who thinks that the court's dysfunctional now, I got news for you. It's significantly better than it has been in historical. Isn't this really though in part, a failure on the part of the Chief Justice to wrangle people and get them to be? I would think that some of that's leadership that you need to have somebody strong to say, I don't care if you disliked this person or not, you're not going to act like this in public.

J. Aughenbaugh: Most judicial politics scholars have identified Chief Justice leadership is an important variable in whether or not the justices will get along and perform effectively as a group. I keep on coming back to this and I apologize, listeners, but this is a small group organization that has a particular task. If they're not getting along personally, it can affect the organization's ability to do their work. Now, some chief justices, by pretty much every account, exhibited phenomenal leadership. For instance, John Marshall in the early 1800s, Charles Evan Hughes, he guided the Supreme Court during the Great Depression, during the New Deal. Earl Warren in the chord, in the 1950s and '60s, bounded together and lead the civil rights revolution on the court. Other Chief Justice, however, Harlan Fiske Stone, who actually was the Chief Justice for a good chunk of the time, where we are talking about the scorpions in a bottle. I mean, Harlan Fiske Stone. Some of their conference deliberations, Nia, lasted days.

N. Rodgers: He needed to talk to my boss about how to set an agenda if she can run an efficient meeting. I'm just saying, one of my great admirations for my bosses that we regularly meet and end meetings early or on time. We just don't go late very much anymore.

J. Aughenbaugh: For listeners, Nia and I are particularly, shall we say, sensitive.

N. Rodgers: I was going to say on fond, but yes, sensitive.

J. Aughenbaugh: To meetings being run efficiently and effectively.

N. Rodgers: Right. It's okay if we need to go over as long as there's a reason to go over.

J. Aughenbaugh: We're making substantive progress on whatever worst we are tackling but because we have so many meetings as academics, if they're not run well, our frustration goes up dramatically.

N. Rodgers: Then it makes you not want to show up for the next one and it just turns into a whole thing.

J. Aughenbaugh: Yes. Then personal animosities, flower and bloom. Another chief justice who gets really poor marks was Warren's successor, Chief Justice Warren Burger.

N. Rodgers: It's really bad to me, but it's Earl Warren Warren Burger.

J. Aughenbaugh: Yes.

N. Rodgers: You know what I mean?

J. Aughenbaugh: A lot of my students are like, his last name was Burger, I'm like, "Yes, stop the jokes, don't even let them."

N. Rodgers: There was also a Frankfurter. Move on.

J. Aughenbaugh: Yes. But you don't even have to like the chief justice's jurisprudence if they run the court well. A couple of good examples of this are Chief Justice William Howard Taft and also Justice Rehnquist. A lot of his liberal colleagues were like, we're not fans of his jurisprudence. But they were like he ran the court well.

N. Rodgers: They call that a tight ship. They run a tight ship.

J. Aughenbaugh: You wanted a tight ship. Conferences were short to the point we cover the case, we take the vote, we assign the opinion, we move on and he did something that I just absolutely love as a college professor. He actually came up with a spreadsheet that he would issue at the end of every month to all the justices that reported who had what majority opinions and what was the status of the opinion. Until they finished writing that majority opinion, they were precluded from receiving another majority opinion assignment.

N. Rodgers: Okay. You're going to write one at a time and you're going to get it done. You don't get to have four or five at a time.

J. Aughenbaugh: I love that.

N. Rodgers: I love a good spreadsheet. I have to admit.

J. Aughenbaugh: Why?

N. Rodgers: I have tendency to be like, what we could do, we could put that in the spreadsheet. That tends to be my way.

J. Aughenbaugh: Listeners. I can confirm because usually once or twice a year, Nia produces a spreadsheet of what episodes we have done, what episodes we have already planned, and what episodes we might want to do in the future. It is a very effective tool for this absent-minded professor. But there is one more category of justice that I want to mention.

N. Rodgers: Now, can I preface this?

J. Aughenbaugh: Go ahead.

N. Rodgers: You are going to talk about, I'm going to steal your thunder little bit. You're going to talk about loners.

J. Aughenbaugh: Yes.

N. Rodgers: I want to make a note that these are loners on the court. The court of people who are already monkish and keep to themselves. Like this is not your disco court up in here where everybody's dancing and singing and it's a party. These are loners from that group.

J. Aughenbaugh: Yes.

N. Rodgers: I don't know that these would not be in some ways called the Unabombers.

J. Aughenbaugh: If they had not found their life's purpose that was considered productive and meaningful and valuable to society.

N. Rodgers: They'd be hermits. These are not loners, these are hermits.

J. Aughenbaugh: There are three, in particular, I want to go ahead and point out. One is the offer mentioned Justice David Souter. David Souter was appointed to the Supreme Court by Bush 41 from New Hampshire and he's a bachelor. He still is, he's still alive. But he so disliked Washington, DC and the attention he received as a Supreme Court justice that he retired during the Obama administration and he moved back to his family farm in New Hampshire. By all accounts, he was physically and mentally still very capable to do the job, but he just did not like DC. He didn't like the attention he received being on the court. He just liked being alone. Yes.

N. Rodgers: He's a loner. Well, just as a side note, I'm not going to save it. I disagree with not wanting to live in DC. I live in Richmond and Richmond is his largest city is I can handle. I think pretty much traffic-wise. I don't know if I could live in DC on any regular basis. I know for positive fact I could not live in New York or London or Calcutta and try to drive anywhere. Like I just wouldn't be able to. My nerves could not take that.

J. Aughenbaugh: As I've explained to my students, they said, you didn't remember David Souter was born and raised in New Hampshire on the family farm.

N. Rodgers: Right.

J. Aughenbaugh: He went to small, private Ivy League schools where he could just throw himself into his work. The fact that he had to move to Washington, DC and then join a group, an organization that at least once or twice a year just gets absolutely ripped by one political party or the other because of the Rowling's is not something that he had to enjoy. He's a small-town American.

N. Rodgers: Right. Well, the media all up in your grill trying to find out what's going on.

J. Aughenbaugh: Yes, the fact that he was unusual. A bachelor? Today? You know what the rumor mill was, and he resented it. He just absolutely resented it, he hated it.

N. Rodgers: Because his private life is his private life.

J. Aughenbaugh: Well, yes. He's a private New Englander. In some ways, he is a stereotype. The other two, I've already mentioned one, Robert Jackson.

N. Rodgers: Because everybody hated him.

J. Aughenbaugh: Well, but not everybody.

N. Rodgers: Yeah, not everybody.

J. Aughenbaugh: But he again was born and raised in Upstate New York, in a small town, Jamestown, New York. He had a successful solo practice as a lawyer before he became noticed in Democratic state politics by then-Governor Franklin Delano Roosevelt.

N. Rodgers: Well, do you think that some of his loneliness also came from when he was denied the chief justice position and he'd felt resentment over that? That might have driven him further into a, you know what? Screw you people.

J. Aughenbaugh: In various scholarly accounts, he openly questioned what good he did. Before he was chief justice, he was Solicitor General of the United States. He did that job so well that some of the justices of the Supreme Court said he should be solicitor general for life.

N. Rodgers: Okay.

J. Aughenbaugh: He was one of FDR's most trusted, if you will, lieutenants during the New Deal. He never took to Washington DC, never took to working with other people. He liked being a solo practitioner. Then the last loner. Sorry listeners, you're going to get a little bit of a feel about the subject of my dissertation, but Byron White. Byron White served on the courts for 30 years and by most accounts, never became good friends with any of his fellow justices. Some scholars say he was conservative, others say he was a New Deal Kennedy liberal, so he was hard to pigeonhole. My favorite description of him was he was a lawyer's judge, meaning he would issue votes and decisions to settle a particular case and then he would move on. One of the fastest writers on the court. He would push his clerks to get draft opinions out of his office within a week.

N. Rodgers: Whoa. Okay.

J. Aughenbaugh: Because he thought the court should actually hear more cases.

N. Rodgers: I'm with him.

J. Aughenbaugh: He thought the court should hear more cases. He was hard to type cast. Is he a liberal, is he a conservative? What is his jurisprudential philosophy? He was sometimes viewed as brusque. Just give me the answer. That's what he would say to his clerks, "Just give me the answer." He would say that to attorneys during cases. "What's your answer?" I'm like, "There is an appeal."

N. Rodgers: Then he was going to say, "Knowing you and hearing these things."

J. Aughenbaugh: Again, those types of figures struggle on a small group. Because again, you see each other so frequently. For easily eight and half, nine months out of the year, you're seeing the same people, you're reading their thoughts, you're taking votes with them over and over again. Being a loner, it's pretty difficult to go in and escape that.

N. Rodgers: Well, this is eight hours a day?

J. Aughenbaugh: Yeah.

N. Rodgers: Five days a week. The business of the court is a job, which makes it both easier in some ways I imagine, but also a lot harder in that, I don't know that you, I'm going to venture out here on the limb and I know we need to wrap up, but you as a professor, your job is not 40 hours a week. Your job is, you teach, but you also have office hours and you're expected to check email even on the weekends because things are due on the weekends and students have questions and so it can be a consuming. One has to really draw the line in order to get work-life balance. I'm assuming that it's a lot in some ways similar for the justices. They don't really get to escape, because a lot of what they do is in their head. A lot of what they do is thinking, and thinking through a question. You know, that they don't just get to say, "It's six o'clock in the evening. Okay, I'm done thinking." That's not how that works. They're watching the episode of Law & Order and they're of course pulling into pardon saying, "Well, that's not legal." Because every lawyer I sit with who does Law & Order, they are like, "You can't do that." I'm like, "Don't ruin this for me, just let me enjoy it." But besides that, they're also in the back of their minds taking over the day's work and whether they've phrased things the way they want to phrase them precisely enough, or clear.

J. Aughenbaugh: How to go ahead and work out this complex legal question. How many times do they sit there, for instance, during one of their children's sporting events or concerts or they're at dinner?

N. Rodgers: They go, oh, oh, and they need to make a note right here.

J. Aughenbaugh: Their spouse or their child goes ahead and says, "Are you paying attention to me?" That's happened for me, where my daughter was saying, "Hey, daddy. Let's go for a bike ride," and we're on a bike ride and she'll go ahead and ask me a question. I'm like, "I'm sorry, Mackenzie, could you repeat the question?" Now, she doesn't know yet or hasn't figured out that I might actually be thinking about something that I want to get across to my students, but I haven't figured out how the best way to do it.

N. Rodgers: Because you always update your examples from semester to semester.

J. Aughenbaugh: Why is it that when I went ahead and presented X this semester, the students just didn't seem to get it, but in the past they did?

N. Rodgers: Right. How do I change that?

J. Aughenbaugh: How do I change that? Am I doing something wrong? etc. To your point, that's where the difficulty is with people who are loners. Is that, how do they go ahead and fit into a group where the work can be so consuming? You know this, Nia.

N. Rodgers: How do they don't lose themselves?

J. Aughenbaugh: Yeah, lose themselves. Because, you know this with me, come the beginning of July, I take five, six, weeks off and it's pretty difficult to find me.

N. Rodgers: Yeah. The only thing that's coming out of the podcast. A podcast, and you show for a kid from [inaudible]. But other than that, I've been friends with you now for several years, you disappear, and it's just a matter of, I send a text or like are you alive and you went back? Yes, and that's the extent of it because you're laying on the couch reading new books to incorporate into class, and watching new movies to incorporate into class and doing all those things that you do that let you recharge a little bit. I feel for some of these folks that because I can see what [inaudible] would say, "This pressure is unbelievable." They want to know me personally. He would have found that [inaudible] .

J. Aughenbaugh: Yes, yeah.

N. Rodgers: I'm assuming that your favorite Justices, Byron White and Robert Jackson, also probably would have found that a [inaudible]. You don't need to know me. What you need to do is look at my body of work. You don't need to know me personally, but we as people tend to want to know the personalities of the justice. We delight in the stories of Scalia and Ginsburg going to the airport together and getting slightly sloshed. We love that, we think that's marvelous because it humanizes them. But it also invades their privacy in a way that some people must be exhausting.

J. Aughenbaugh: Also, for listeners, we're talking about justices who, in many ways, were born of a different time.

N. Rodgers: Right. This is all pre-social media. The ones now must be under excruciating.

J. Aughenbaugh: Maybe some of them like it, but historically, most justices have not. Byron White grew up in Colorado on a farm. He went weeks without seeing anybody other than his family. Sandra Day O'Connor had probably more in common with [inaudible] than she did with many of the justices that she worked. These are people who, with some noted exceptions, don't gravitate towards a whole bunch of people knowing about their personal lives because that's not the era they grew up in.

N. Rodgers: Well, and it has no bearing on the jurisprudence.

J. Aughenbaugh: That's right.

N. Rodgers: For them, things that they have no bearing on the jurisprudence don't matter like this.

J. Aughenbaugh: They can be remarkably single-minded.

N. Rodgers: Right. That's our first episode in these interpersonal, loved and hated, and we may, as we talk about other things, also bring up whether they were loved or hated or not. We will be bringing out episodes on other things like the merit question. Which schools end up, which people end up on the Supreme Court? The diversity questions that we have, not only about race, but also about religion. We're looking forward to all that with you all. Thank you, Aughie. I'm looking forward to this with you because this is the stuff I'm really interested in about the core. I like the cases, don't get me wrong. But I'm also interested in the personalities. I'm interested in how those people come to be where they are.

J. Aughenbaugh: Well, and also to our listeners, we're going to do an episode about the final resting places.

N. Rodgers: Yes, some of those are going to surprise you.

J. Aughenbaugh: Because again, that doesn't get a lot of attention. I mean, we know about presidents, we know about seminal figures in the United States Congress. But for many of the justices, you'll be surprised to find out where their final resting places are, etc. We're going to take, again, I think the appropriate metaphor is, we're going to take a really deep dive behind the curtain and see what goes on with the Supreme Court.

N. Rodgers: We should call this series, Behind the Robe, SCOTUS Behind the Robe. Anyway. Thanks so much for listening, and we'll see you in the next episode.

J. Aughenbaugh: Thanks, Nia.

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