Most United States Supreme Court Justices Have Lacked Prior Judicial Experience

Posted on Categories Federal Law & Legal System, Legal History, Public, U.S. Supreme Court

In response to my earlier post about Chief Justices of the United States Supreme Court who were also the Court’s senior justice in terms of years of service, Nick Zales posed the question as to whether the late William Rehnquist was the only Chief Justice to have had no prior judicial experience before becoming a member of the Supreme Court. (While Rehnquist had served for 13 years as an Associate Justice of the Supreme Court before being elevated to the Chief position, that was his only prior judicial experience.)

As it turns out, Rehnquist shared a lack of prior judicial experience with a majority of the men who have held the nation’s highest judicial office. Altogether, nine, or slightly more than half, of the 17 men who have held the position of Chief Justice were appointed without prior judicial experience.

Moreover, of the eight who had previously been judges, several had very limited judicial experience. Edward White, for example, had served for only a single year on a state court, and that had been fourteen years prior to his appointment to the United States Supreme Court. The judicial service of the first Chief Justice, John Jay, constituted two years as the Chief Justice of the New York Supreme Court a decade before his appointment as the U. S. Supreme Court. The current Chief Justice, John Roberts, served for only two years and three months as a federal judge before his elevation to the Supreme Court in 2005.

While prior judicial experience appears to have become a prerequisite for a Supreme Court appointment in our own time, historically, there clearly was no such requirement. None of the men appointed Chief Justice in the 19th century (Marshall, Taney, Chase, Waite, and Fuller) possessed any prior judicial experience, and only four of the eight appointed in the 20th century (White, Taft, Vinson, and Burger) had previously served as judges at any level below the Supreme Court.

Moreover, other than the three who were promoted from the ranks of Associate Justices (White, Stone, and Rehnquist), only three Chief Justices (Rutledge, Burger, and Roberts) were sitting judges at the time that they were appointed Chief Justice, and one of them, John Rutledge, had his appointment rejected by the Senate, requiring him to step down after less than six months in office.

Several of the best known Chief Justices—John Marshall, Roger Taney, Charles Evans Hughes, and Earl Warren—had no prior judicial experience at all before their appointment to the Supreme Court, but this lack of time on the bench did not work to deny them entry into the pantheon of great Supreme Court justices.

The following chart summarizes the prior judicial experiences, or lack thereof, of the 17 Chief Justices.

 

John Jay (1789-1795) –former Chief Justice of the New York Supreme Court.

John Rutledge (1795-1975)—member of the South Carolina Court of Chancery, the South Carolina Court of Pleas, and prior service on the United States Supreme Court.

Oliver Ellsworth (1796-1800) – member of the Connecticut Superior Court.

John Marshall (1801-1835) – no prior judicial experience.

Roger Taney (1835-1864) – no prior judicial experience.

Salmon Chase (1864-1873) – no prior judicial experience.

Morrison Waite (1974-1888) – no prior judicial experience (declined appt. to the Ohio Supreme Court).

Melville Fuller (1888-1910) – no prior judicial experience.

Edward White (1910-1921) – served one year on the Louisiana Supreme Court before being appointed an Associate Justice of the United States Supreme Court in 1894.

William Howard Taft (1921-1930) – member of the Ohio Superior Court and the U.S. Sixth Circuit Court of Appeals, in addition to a four-year stint as President of the United States.

Charles Evans Hughes (1930-1941) – no prior judicial experience before his appointment to the Supreme Court in 1910. Resigned to run for President of the United States in 1916. Reappointed, 1930.

Harlan Fiske Stone (1941-1945) – no prior judicial experience.

Fred Vinson (1946-1953) – served on the United States Circuit Court for the District of Columbia.

Earl Warren (1953-1969) – no prior judicial experience.

Warren Burger (1969-1986) – served on the United States Circuit Court of Appeals for the District of Columbia.

William Rehnquist (1986-2005) – no prior judicial experience other than years as Associate Justice.

John Roberts (2005- ) — served on the United States Circuit Court of Appeals for the District of Columbia.

 

3 thoughts on “Most United States Supreme Court Justices Have Lacked Prior Judicial Experience”

  1. Thank you, Gordon. This is a fascinating article. By coincidence, or not, our current Chief Justice was a law clerk for William Rehnquist. He was nominated for the D.C. Circuit by George H. W. Bush in 1992, but no vote was ever held when Bush lost the election and the nomination expired.

    There is, or at least should be, a place or two on the U.S. Supreme Court for lawyers without judicial experience. William O. Douglas and Thurgood Marshall are examples of excellent justices with no prior judicial experience. Neither ever became Chief Justice.

  2. Over the years, have not the federal courts “overstepped” their jurisdiction by becoming “activist” jurists, i.e., reading into the constitution what Our Founding Fathers would have never intended Our Constitution to mean? Making such controversial decisions as banning the pledge of allegiance, prayer in school, the wholescale murdering of unborn babies (abortion), “granting” same sex marriage the same rights as the “traditional” meaning of marriage as between a man and a woman? The High Court has recently struck down “affirmative action” that a previous High Court said was the law of the land. My point being, when the High Court says that the Constitution “evolves” it removes a “fixed point” of a moral compass that must remain fixed in stone; if not, right becomes wrong, and wrong becomes right. Please do not think I am some radical, ultra-right-wing (or left-wing) idealogue, I am far from that! Remember the Dred Scott decision that said “…negroes are only 3/5th a person.” Surely they would not hold that today!

  3. No they wouldn’t, because new precedent was set by the Civil Rights Act of 1866 and more importantly by the Fourteenth Amendment to the Constitution at a time when people like you were asking how the Constitution can “evolve” when that removes a “fixed point” of a moral compass that must remain fixed in stone, since then right becomes wrong, and wrong becomes right; well, slavery was legally considered right back then, so you’re basically siding with slave owners here. Times change. So stop using quotation marks around every other word and actually consider that maybe you’re on the wrong side of history.

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