On September 8, 1953, 73-year-old Fred M. Vinson succumbed to a massive heart attack. Vinson was the Chief Justice of the United States. His unexpected death caused a fury in legal and political circles — who would succeed him? A Democrat who served in Congress and as Secretary of the Treasury in the Roosevelt administration, Vinson was appointed by President Harry Truman. He succeeded another Democrat, Harlon Stone. Six years earlier, Stone met a similar fate as Vinson, dying unexpectedly after suffering a cerebral hemorrhage while on the bench. With Vinson’s sudden death the appointment of a new Chief Justice would fall to a Republican — Dwight D. Eisenhower.
In one of those “timing is everything moments,” Vinson’s appointment by Truman would be the last time the appointment of a Chief Justice would happen during a Democratic administration. The judicial stars have not aligned for a Democratic President to appoint a Chief Justice since Vinson’s appointment in 1946 — 72 years ago.
At the time of Vinson’s death, by all accounts the most important case of the century — Brown vs. Board of Education — was pending before the high court. The court would decide whether segregated schools would continue as a part of American life — would “separate but equal” remain the law of the land in the schools of the South?
From the inception of the Brown case, lawyers and plaintiffs were concerned as to whether Vinson, a native of Kentucky, would rule to strike down segregation in schools. Oral arguments had already been heard before the Vinson Court, but the case was continued for further arguments. Widely circulated rumors held that the justices were divided as to a ruling.
Then fate stepped in. Earl Warren became the Chief Justice.
While our most recent Chief Justices — Warren Burger, William Rehnquist and John Roberts — all came from the ranks of the judiciary, Warren, like Vinson before him, had no prior judicial experience. He started his legal career as the Alameda County prosecutor in his native California. He moved on to be the attorney general of the State of California and eventually was elected to three successive terms as Governor — the only California governor to hold that distinction. In 1948 Warren was the vice-presidential nominee of the Republican Party, running with New York Governor Thomas Dewey. He was a prominent figure in American political life.
In the 1952 presidential race, Warren was a strong contender for the top spot of the Republican ticket. At the very least it was anticipated that he would run for vice president on the ticket with Dwight D. Eisenhower. But in a series of backroom maneuvers, Warren’s fellow Californian, Richard Nixon, positioned himself to be Eisenhower’s vice-presidential pick. This did nothing to endear Warren to the Eisenhower/Nixon ticket — a grudge that Warren supposedly carried for the rest of his life.
But Eisenhower knew that he needed Warren and California to win the presidency. In exchange for Warren’s support, Eisenhower is said to have promised Warren the first seat on the United States Supreme Court. The problem for Eisenhower was that he had promised a seat on the high court — not the office of Chief Justice. But a promise is a promise and the position of Chief Justice was the first seat that opened.
Although there is some evidence that Eisenhower had first offered Vinson’s seat to Secretary of State John Foster Dulles, he ultimately kept his promise and nominated Warren. Ironically, Eisenhower is often quoted as saying that appointing Warren was the worst mistake he ever made.
Today we hear conservative pundits bemoaning the dangers of activist judges. Warren, never known as a great legal scholar, was the ultimate activist. He saw a problem, made a decision and then found the law to support his decision. It was Warren who brought a divided court together to reach a unanimous decision in the Brown case. Without Warren, it is likely that public education in the South would have continued on a segregated basis for another generation. Thanks to the Warren Court, indigent defendants were given lawyers; defendants received their constitutional rights at the time of their arrest; the police were told that they could not conduct arbitrary searches and the list goes on. Just about every aspect of criminal proceedings that we as Americans now take for granted came from the Warren court.
People growing up in the 60s will remember seeing “Impeach Earl Warren” bill boards, signs and buttons all over America. Those who wanted to impeach Earl Warren were calling for a return to the America of generations past where blacks were kept in their place and criminal defendants had few rights — give them a fair a trial and then hang them. The descendants and heirs of the “Impeach Earl Warren” folks are now wearing “Make America Great Again” hats — same message, different format.
Supreme Court appointments are all about timing. President Jimmy Carter served a full term without a single Supreme Court appointment. Ronald Reagan had three — one of which was Chief Justice William Rehnquist. The next four presidents, George H.W. Bush, Bill Clinton, George W. Bush and Barack Obama each had two appointments. Actually, Obama had a third appointment, but Congress refused to even have confirmation hearings. Assuming Trump’s current nominee is confirmed, Trump will have two appointments within his first two years. It’s all about timing.
The average length of service of an Associate Justice of the Supreme Court is 16 years.
The average age of the current justices is 67.12 years.
The oldest person to ever serve on the court was Oliver Wendell Holmes who retired at age 90, two months short of his 91st birthday.
Justice William O. Douglas was appointed by Franklin D. Roosevelt in 1939 and left during the presidency of Gerald Ford in 1975 — a total of 37 years and 211 days on the court — setting a record for the longest servicing justice.
Trump’s first appointee, Neil Gorsuch, at age 50, could easily surpass Douglas’s record.
Trump will surely select for his next appointment a sufficiently youthful and healthy person who could serve well into the latter part of the 21st century as he salivates over the possible death or resignation of other Supreme Court Justices. With Ruth Bader Ginsburg at age 85 and Steven Breyer at 79, his wish could come true.
If Democrats can delay the vote on Trump’s forthcoming nominee until after the mid-term election and voters go to the polls in November and rid the Senate of Trump’s legions of sycophants, Trump’s nominations could be blocked. Since both events are very unlikely, Trump will have a second appointee. Conservatives will control the court. And timing will again decide the future course of American jurisprudence under a Supreme Court.
C. Ellen Connally is a retired judge of the Cleveland Municipal Court. From 2010 to 2014 she served as the President of the Cuyahoga County Council. An avid reader and student of American history, she serves on the Board of the Ohio History Connection, is currently vice president of the Cuyahoga County Soldiers and Sailors Monument Commission and treasurer of the Cleveland Civil War Round Table. She holds degrees from BGSU, CSU and is all but dissertation for a PhD from the University of Akron.