Actions undertaken by Supreme Court justices, usually at the command of the president or Congress, that are outside the scope of their judicial function of hearing and deciding cases.
From the earliest days of the Supreme Court, justices have served in a variety of official capacities beyond their strictly judicial duties. The practice was always controversial and became less common after Earl Warren’s term as chief justice of the United States. The four principal criticisms of accepting such appointments from Congress or the president are that these appointments reduce the efficiency of the Court, may place justices in a conflict of interest, may weaken public respect for the judiciary, and violate the principle of separation of powers. Justices sometimes engage in questionable extrajudicial activities on their own volition, such as campaigning for the presidency or serving as a legal or political consultant. Business dealings may easily violate the code of judicial conduct that the justices swear to uphold. Judges must not only be honest, they must appear to be above reproach.
During the colonial period, Americans lived under the British
In two early cases, the Court asserted its independence of Congress and the president by refusing to engage in extrajudicial activities. In Hayburn’s Case
In July, 1793, President Washington requested advice from the Court on whether the United States could remain neutral in the war between Great Britain and France under the 1778 treaty between the United States and France. In August, the justices of the Court replied in a letter to the president that they could not give advisory opinions. The constitution made the judiciary a separate and independent branch of government. Its opinions on matters of law must be final and unreviewable by the executive and legislative departments. In essence, the president was asking the court to perform the duties of the attorney general, the executive officer entrusted with proffering advice to the president on matters of law, advice that the president could always ignore.
Although the Court twice refused extrajudicial assignments in the 1790’s, individual justices were not so scrupulous. In 1794 while still holding the office of chief justice of the United States, John Jay
Associate Justices Samuel Nelson and John A. Campbell accepted appointments as mediators in the conflict between the North and South in an unsuccessful attempt to avoid civil war. In 1871 President Ulysses S. Grant appointed Justice Nelson as a U.S. representative to the Alabama Claims Commission. The commission arbitrated U.S. claims against Great Britain arising from its support for the Confederacy during the Civil War. Five Supreme Court justices received appointments to the Electoral Commission that resolved the disputed presidential election of 1876, awarding the presidency to the Republican candidate, Rutherford B. Hayes.
Chief Justice Melville W. Fuller and Justice David J. Brewer served as arbitrators in a boundary dispute between Venezuela and British Guiana. Associate Justice John Marshall Harlan accepted an appointment as arbitrator in a conflict over fur seals. Justice William R. Day in the 1920’s served on the American-German War Claims Commission. Chief Justice Charles Evans Hughes served as chairman of a tribunal authorized to settle a dispute over the border between Guatemala and Honduras. Justice Willis Van Devanter served as an arbitrator in a conflict between the United States and Great Britain over British seizure of a U.S. vessel. Justice Owen J. Roberts accepted an appointment to a commission to hear claims against the United States from Mexico.
In addition to appointments to diplomatic posts, Court justices have received presidential commissions to conduct investigations of controversial or embarrassing public events. Justice Henry Baldwin, associate justice from 1830 to 1844, participated in an investigation of General Andrew Jackson’s military campaign against the Seminole Indians. President Franklin D. Roosevelt appointed Justice Owen J. Roberts to a commission to investigate the Japanese surprise attack on Pearl Harbor. President Lyndon B. Johnson persuaded Chief Justice Earl Warren to chair the commission investigating the assassination of John F. Kennedy.
Justice Stephen J. Field served as a member of a California commission to revise the state’s statutes. In 1911 Justice Charles Evans Hughes served as a commissioner empowered to set postal rates. President Harry S Truman tapped Justice Robert H. Jackson to serve as chief U.S. prosecutor in the Nuremberg War Trials following the Allied victory in World War II.
The chief justice has several nonjudicial obligations. By statute, the chief justice serves as chairman of the National Gallery of Art’s Board of Trustees and as chancellor of the Smithsonian Institute’s Board of Regents. The chief justice also chairs the Judicial Conference of the United States, the body responsible for the administration of the federal courts. Most commentators rank Chief Justice Warren E. Burger
Not all extrajudicial activities are the result of congressional statutes or presidential appointments. The justices engage in many off-the-bench activities on their own initiatives. The ones that lead to controversy typically involve conflicts of interest or breaches of the expectation of impartiality. Several justices have served as advisers to members of Congress and the president. Justice Joseph Story
The greatest scandal involving a justice’s extrajudicial private acts led to the resignation of Justice Fortas
When justices leave the bench, even temporarily, they impair the efficiency of the Court. Justice Robert H. Jackson was away from the Court for more than a year. Several chief justices, including Edward D. White, William H. Taft, and Harlan Fiske Stone, have complained that taking justices away from their judicial tasks slows down the processing of cases.
The Court runs a risk when its justices agree to serve on extrajudicial commissions. The public may perceive their work as biased and politically motivated. This perception can lead to a loss of public respect for the Court. The 1876 Electoral Commission was criticized for voting along strict party lines. The task placed the justices in a conflict of interest, and they did not appear to be impartial. The Roberts Commission exonerated the Roosevelt administration of responsibility for the surprise attack on U.S. forces at Pearl Harbor and placed the blame on the military commanders in Hawaii. The Warren Commission concluded that assassin Lee Harvey Oswald acted alone. The commission’s findings were attacked as soon as they were released, and criticism continued to grow as additional evidence and theories arose.
Extrajudicial activities became increasingly questionable. As the caseload of the Court increased, the demands of the office have reached the point where justices have little time for work outside their judicial duties. In the twentieth century, the Court grew bolder and struck down dozens of congressional statutes and presidential actions. Examples include Youngstown Sheet and Tube Co. v. Sawyer
Russell Wheeler provides a good overview of the early Court’s efforts to claim its independence in “Extrajudicial Activities of the Early Supreme Court,” Supreme Court Review (1973): 123-158. One of the justices who strongly opposed taking justices from the bench to serve on commissions and tribunals was Harlan Fiske Stone, who is the subject of Alpheus Thomas Mason’s Harlan Fiske Stone: Pillar of the Law (New York: Viking Press, 1956). Bruce Allen Murphy revealed the full extent of Justice Brandeis’s efforts to influence U.S. domestic and foreign policy in The Brandeis-Frankfurter Connection (Garden City, N.Y.: Anchor Books, 1983). He also documents the extrajudicial activities of Justice Fortas in Fortas: The Rise and Ruin of a Supreme Court Justice (New York: W. Morrow, 1988). A good account of Chief Justice Warren’s reluctance to chair the Kennedy assassination commission can be found in Bernard Schwartz’s Super Chief: Earl Warren and His Supreme Court: A Judicial Biography (New York: New York University Press, 1983). Eugene Gerhart’s America’s Advocate: Robert H. Jackson (Indianapolis, Ind.: Bobbs-Merrill, 1958) contains an account of Jackson’s service as chief prosecutor at the Nuremberg War Trials.
British Law Lords
Judicial codes and rules
Supreme Court of Canada