Most United States Supreme Court Justices Have Lacked Prior Judicial Experience

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.


This Post Has 11 Comments

  1. Nick Zales

    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.

    1. Igor Rivin

      Marshall was on the Second Circuit, Solicitor General, then SCOTUS.

      1. Ridley

        Maybe you should consider researching how many Justices ever had trial court experience. There is the embedded bias at major law schools that appellate court clerkships are better than trial court clerkships. SCOTUS in its present format has not a single Justice with any distinquished trial court experience.

  2. stephen chase

    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!

    1. John Paul Parks

      Your comments are a bit jumbled. First of all, the union survived the Civil War, but the 1787 Constitution did not. The war ended in 1865. By 1870, the 13th, 14th, and 15th amendments had been added to the Constitution, transferring a huge amount of power from the states to the federal government, and by default, to the federal judiciary, which has the power to interpret the Constitution, pursuant to Article III, Section 2, Clause 1. Phrases like “privileges and immunities,””due process of law,” and “equal protection of the law” are subject to interpretation, and those interpretations may change over time.

      As for the Dred Scott decision, it did not hold that slaves were three-fifths of a person. The Three Fifths Clause was in the original Constitution, as part of a formula to apportion taxes and representatives among the states. The free states wanted the slaves to count for taxes but not for representation. The slave states wanted them to count for representation but not for taxes. They compromised and agreed that they would be counted three-fifths for both purposes. Since slaves did not vote, counting them as a full person would have given a greater advantage to the slave states. In any event, the Three Fifths Clause had nothing to do with the human worth of a slave. As for the Dred Scott decision, it is outrageous. The Court held that it had no jurisdiction. At that point, it should have stopped talking. Instead, it wrote a 300+ page opinion explaining what it would rule if had jurisdiction. It falsified history, inflamed a nation, and accelerated the outbreak of civil war.

  3. Jon Daniels

    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.

  4. Steven Walker

    Regarding the number of justices on the Supreme Court; Is there any correlation between the number of justices and the amount of work that they are required to do?

    Would not the number of justices effect the number of cases?

    I do not mean this facetiously.

    1. Ed Blackwell

      Originally, yes.

      There were 6 SCOTUS justices.

      There were 3 Federal Courts of Appeal.

      Each Court of Appeal was formed from 2 SCOTUS justices and a third justice.

      In addition, Chief Justice Jay was ambassador to Britain.

  5. Diane Roffler

    I am looking for an answer to why are the judges there for life? In days past, people didn’t live as long as they can today. Also shouldn’t there be a minimum age when selected? If appointed at the age 40+, the judge could be on the court 40 some years. I think a beginning age and an age to retire is needed.

    1. Jon Melick

      Simple. Article III, Section 1.

      Changing things as you suggest would require a Constitutional amendment.

  6. Peter Philip

    There has been some commentary about the lack of legislative or executive experience of the current justices. The last one with either was Justice O’Connor. Who were the justices with either prior to O’Connor?

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