When U.S. District Court judge Gerhard A. Gesell passed away from liver cancer in February 1993, Ruth Bader Ginsburg reached out to his widow, Peggy Gesell, immediately. “I count it my great good fortune to have spent time in his fine company,” the then U.S. Court of Appeals judge wrote. “May you continue in life and health as he would have wished,” she concluded.[1]
Judge Gesell’s jurisprudence paralleled that of Ginsburg’s so a personal connection between the two seems obvious but based on her history hardly unusual. During her thirteen years on the federal court, Ginsburg earned a widely acknowledged reputation for collegiality with more conservative members of the judiciary. Her opinions tended toward moderation and she often voted more frequently with Republican appointed judges than her fellow Democrat appointees, particularly in “criminal matters,” observed Jeffrey Brandon Morris in his history of the D.C. Circuit.[2] When nominated for the Supreme Court by Bill Clinton just a few months later in June, her friendships with more conservative jurists raised red flags for critics on the left: “some feminist leaders fret[ed] privately that the president was making a mistake,” noted legal expert Linda Greenhouse in her obituary for Ginsburg.[3]
In hindsight, such worries proved unfounded as Ginsburg blazed a trail for women’s rights as no other justice had while also forging a well-known bond with her fellow justice and arch conservative, Anton Scalia. Their friendship became the gold standard for such relationships; the equivalent to a million buddy cop movies but this one on the nation’s highest tribunal.
Yet, Ginsburg and Scalia’s example, though perhaps the most famous, was hardly the first. Due in part to the job’s unique responsibilities and pressures, especially for those occupying positions on the higher courts, one discovers a level of collegiality between Justices on the Supreme Court as well as between the justices and their colleagues on the inferior courts.
In 1979, Bob Woodward and Scott Armstrong released The Brethren, the first book to explore in depth the internal workings of possibly one of the least transparent institutions of the nation’s three branches of government: The Supreme Court. The book depicted life on the Court as a continuing battle of personalities and ideologies, most notably the apparent widespread disapproval of Chief Justice Warren Burger by several of his colleagues.
According to the authors, nearly every justice on the Burger Court either had a personal grudge with the chief justice or viewed him with some level of disregard. Justice William J. Brennan disparaged Burger in front of his clerks; Potter Stewart thought him superficial and without substance; Powell believed him to be “grossly inadequate” as a legal thinker; Thurgood Marshall purposely discomforted Burger by greeting him with noted informality: “What’s shakin’, Chiefy baby?”; William H. Rehnquist who shared many of the chief justice’s legal opinions viewed Burger’s concern for “appearance and formality” with great mirth [4]
Admittedly, over the years, critics have picked apart the book for its sensationalistic approach to the court and its clerk driven narrative. At the time, members of the Court bristled at the coverage. “The problem is that millions of laymen now have a distorted impression of the Court based on the Sixty Minutes program and the most extensive commercial and media promotion I have ever seen given a book,” Justice Lewis Powell wrote New York Times journalist Anthony Lewis. “It will be regrettable indeed if public confidence in the Court is impaired.”[5] In his 2019 memoir, John Paul Stevens critiqued the book for its attempt to “quote the justices’ inner unexpressed thoughts,” and even read aloud the one passage that discussed his part in the 1975 term to great laughter.[6]
As Stevens noted, however, the Court today is a much more transparent, and diverse, institution than it was in the late 1970s. The former in part due to the research by scholars of justices’ papers, including many held in the Manuscript Division at the Library of Congress, 24 from the twentieth and twenty first centuries alone, including one of the most recent justices to retire from the Court, John Paul Stevens.
The new term with the addition of Justice Amy Coney Barrett offers the opportunity to reflect on past relationships between members on the Court as perhaps a means to think about those developing among its current justices while providing further context, a corrective even, to Woodward and Armstrong’s depiction of an institution riven by personality differences.
Respect Even in Opposition
In his case history for National League of Cities v. Usery (OT 1975), only recently opened to the public with the passing of Justice Stevens, Brennan took Justice Rehnquist to task for an opinion that he believed to be so “devoid of logic and reasoning” that it might not hold the majority. Despite courting the other justices, Rehnquist’s opinion ultimately won the day earning a 5-4 majority. Regardless of their sharp legal disagreement, Brennan concluded cordially Rehnquist “had won, but I did get some satisfaction out of having given him a run for his money.”[7]
For his part, Rehnquist felt similarly. In correspondence to Brennan unrelated to the National League of Cities case, he reciprocated such feelings. “One of the most enjoyable aspects of my short tenure on the court has been the good fortune to sit next to you at brunch,” the future Chief Justice wrote. “I was somehow fearful when I came that disagreements about particular decisions might carry over to social intercourse, but the fact that I genuinely look forward to our conversations at lunch and elsewhere show how much I misjudged the situation.”[8]
Temper, Temper
As with any profession, tempers sometimes flared during particularly impactful cases such as in 1977’s Regents of the University of California v. Bakke which both limited and recognized affirmative action in college admissions. According to Brennan, Justice Harry A. Blackmun (HAB) became increasingly difficult. Blackmun had voted against granting cert initially. As the case continued, Blackmun’s clerks confided that the Justice grew “quite irritable whenever the subject of Bakke was raised.” He is so sensitive and independent that an overture from me was more likely to close his vote than to move the case forward,” Brennan wrote.[9]
Blackmun’s rancor in the case affected assignments. He confronted Brennan demanding to be given the opinion in Franks v. Delaware. Brennan believed Blackmun to have mishandled other cases during the same term and though reluctant to do so surrendered to Blackmun’s request. “I recognized that, if I irritated him on the eve of the Bakke conference I risked losing his vote. So in the end I relented, to the consternation of my clerks. HAB, however, was delighted.”
The two friends continued to joust over the case, Blackmun angry that Brennan had yet to complete an opinion in an earlier case, thereby withholding his vote in Bakke as punishment. “My Brethren were incredulous,” reflected Brennan. “One asked what the two cases had to do with each other, and WHR demonstrating his comic gifts, asked it was in fact that both cases began with ‘B.’ HAB softened slightly and announced he was working on a memo which would not be ready for at least two weeks.”[10] Though Blackmun’s outburst angered Brennan and the two argued several times during the case, the two justices remained close friends well after the Bakke decision.
Sometimes the Law Does Divide and Yet …
Blackmun’s colleagues chalked up Blackmun’s behavior in Bakke to a recent bout of illness, the very demanding work load required of a Supreme Court Justice and a Fordham law review article that had suggested the long period from argument to ruling in some recent cases was ““undoubtedly HAB’s fault.” For his part, Brennan chalked up Brennan’s outburst as simple “aberrations.”[11]
Of course, sometimes, prickly relationships on the Court do stem from legal positions. In biographies of Justice Sandra Day O’Connor, both Joan Biskupic and Evan Thomas depict the relationship between O’Connor and Harry Blackmun as frosty, if not distant.[12] Blackmun biographer, Linda Greenhouse, characterized Blackmun’s attitude toward O’Connor as one of wariness.[13] All three attributed whatever reservations the justice might have held toward his younger colleague as related to the possibility O’Connor might overturn Roe v. Wade, Blackmun’s most famous, and controversial, majority opinion.
Again, however, even under the weight of such pressures, Blackmun and O’Connor shared moments of levity. In 1987, due to the absence of senior justices, Blackmun served as chief justice for a day. Acting Chief Justice Blackmun suggested “obtaining a Court cat to chase down the mice and ‘Boris’ who, I am told, is the rat upstairs”, “striking some [cases] as too difficult to decide,” and “scheduling square dancing in the Great Hall.”[14] Justice O’Connor quickly endorsed Blackmun’s suggestions. “By all means sign me up for square dancing,” she wrote, adding, “And I might offer some suggestions on some of those cases too difficult to decide.”[15] A few years later, after exchanging photographs of a youthful Blackmun on horseback, O’Connor wrote to him with a tinge of nostalgia for her Arizona upbringing. “Life on a ranch seemed so normal to me growing up, now it is so distant, but the memories are special.” She concluded playfully, “Could you toss a lariat?”[16]
Even antagonists Burger and Brennan found moments of grace. In 1977, Brennan was diagnosed with cancer and underwent treatment in December of the same year.[17] Shortly after, Burger wrote Brennan quoting from Thomas Mallory’s fifteenth century work, Morte d’ Arthur: “More things are wrought by prayer than this world dreams of. For what are men better than sheep or goats living a blind life within the brain if knowing God, they life not hands in prayers for themselves and those who call them friend.” Prayer the Chief Justice wrote, brought “new confidence and courage to meet trials … it changes things – physical things, illnesses, troubles, attitudes of others.” If believing in biblical accounts of miracles made him simple than Burger admitted his simplicity. “I believe it because I have seen it happen and the past eight years must make you as simplistic as I am.”[18]
Sometimes older colleagues offered their younger peers professional advice. After the passing of Justice Hugo Black in late 1971, Brennan related several memories of his time with Black to Chief Justice Burger. In particular, Brennan recalled after a particularly stressful term during which “I blew my top about pressures to make a change in an opinion,” Black appeared on his office doorstep. Black “walked in, and peremptorily ordered me to leave the building and stay away for two or three days until I had recovered my cool,” Brennan wrote. “He remarked that this pressure cooker can beat the strongest of us and that the only way to beat it was to drop it when it got too hot. How right he was.”[19]
In the end, whatever the political or legal views of the various justices on the Court, excluding former members, there are only nine people in America that truly understand the experience. Anton Scalia and Ruth Bader Ginsburg represent the most well known example in recent history taking in operas and elephant rides in their free time while duking it out ideologically on the job, but it’s a trend that extends back decades and one that undoubtedly continues today.
[1] Ruth Bader Ginsburg to Peggy Gesell, letter, February 22, 1993, Gerhard A. Gesell Papers, Manuscript Division, Library of Congress
[2] Jeffrey Brandon Morris, Calmly to Poise the Scales of Justice: A History of the Courts of the District of Columbia Circuit (Durham, NC: Carolina Academic Press, 2001), 320.
[3] Linda Greenhouse, “Ruth Bader Ginsburg, Supreme Court’s Feminist Icon, is Dead at 87,” New York Times, September 18, 2020.
[4] Bob Woodward and Scott Armstrong, The Brethren: Inside the Supreme Court, New York: Simon and Schuster, 1979) 436, 380, 308, 324-5, 67.
[5] Lewis Powell to Anthony Lewis, letter, January 15, 1980, Anthony Lewis Papers, Manuscript Division, Library of Congress.
[6] John Paul Stevens, The Making of a Justice: Reflections of My First 94 Years (New York: Little, Brown, and Company, 2019), 177.
[7] William J. Brennan, “National League of Cities v. Usery,” Case Histories OT 1975, LXXXVI, LXXXV, William J. Brennan Papers, Manuscript Division, Library of Congress,
[8] William H. Rehnquist to William J. Brennan, letter, circa 1976-1977, William J. Brennan Papers, Manuscript Division, Library of Congress.
[9] William J. Brennan, “Regents of University of California v. Bakke,” Case Histories OT 1977, XXIX, XXXI, XXXI-XXXII, William J. Brennan Papers, Manuscript Division, Library of Congress.
[10] William J. Brennan, “Regents of University of California v. Bakke,” Case Histories OT 1977, XXXIV William J. Brennan Papers, Manuscript Division, Library of Congress.
[11] William J. Brennan, “Regents of University of California v. Bakke,” Case Histories OT 1977, XXIV, William J. Brennan Papers, Manuscript Division, Library of Congress.
[12] Joan Biskupic, Sandra Day O’Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice, (New York: Harper Collins, 2006); Evan Thomas, First: Sandra Day O’Connor, (New York: Random House, 2019).
[13] Linda Greenhouse, Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey, (New York: Henry Holt and Company, 2005).
[14] Harry A. Blackmun, Memorandum to the Conference, February 9, 1990, Harry A. Blackmun Papers, Library of Congress.
[15] Sandra Day O’Connor to Harry A. Blackmun, February 9, 1990, Harry A. Blackmun Papers, Manuscript Division, Library of Congress.
[16] Sandra Day O’Connor to Harry A. Blackmun, letter, October 17, 1994, Harry A. Blackmun Papers, Manuscript Division, Library of Congress.
[17] Seth Stern and Stephen Wermiel, Justice Brennan: Liberal Champion, (New York: Houghton Mifflin Harcourt, 2010), 449.
[18] William E. Burger to William J. Brennan, letter, December 28, 1977, William J. Brennan Papers, Manuscript Division, Library of Congress.
[19] Brennan to Burger, letter, April 17, 1972, William J. Brennan Papers, Manuscript Division, Library of Congress.