Extrajudicial activities

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 BritishBritish background to U.S. judiciary parliamentary system. In this scheme of government, there is no separation of powers. The executive, the prime minister, is the leader of the legislature’s lower house, the House of Commons, and the highest court, the House of Lords, is the upper house of Parliament. It was common for the justices, or Law Lords, to serve in legislative and executive capacities. This tradition survived the American Revolution and the establishment of constitutional government in the United States. During the Constitutional Convention of 1787, James Madison proposed a council of revision, in which the president and “a convenient number of the National Judiciary” would review statutes enacted by Congress and veto them if they were repugnant to the Constitution. The convention rejected the proposal and gave the veto to the president alone. In Canada and other countries based on the British parliamentary model, it is common for justices of the highest court to perform extrajudicial functions such as giving advisory opinions to the chief executive and serving on commissions of inquiry. The U.S. presidential system of government, based on the separation of powers, makes such assignments problematic for justices of the Supreme Court.

Early Rejection of Nonjudicial Duties

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[case]Hayburn’s Case[Hayburn’s Case] (1792), five of the six justices refused to perform duties imposed on the federal courts by an act of Congress. The law required U.S. circuit courts (consisting of district and Supreme Court justices riding circuit) to hear disability claims by Revolutionary War veterans and to make recommendations to the secretary of war. The secretary, however, could modify or reject the judges’ recommendations. In their letters to President George Washington, the justices pointed out that the act imposed nonjudicial duties on the courts and was, therefore, unconstitutional.

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.

Diplomatic Appointments

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 JayJay, John accepted a presidential appointment as envoy to Great Britain. He negotiated Jay’s Treaty, which resolved disputes between the two countries over unpaid debts. He did not resign his position as chief justice until 1795, when he was elected governor of New York. Oliver Ellsworth, also while serving as chief justice, accepted a diplomatic appointment from President Washington in 1799. He negotiated an end to the undeclared war with France.

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.

Commissions of Inquiry

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. BurgerBurger, Warren E. rather low as a leader of the Court but give him high marks for his administrative work. He enjoyed his extrajudicial roles more than his strictly judicial duties of resolving constitutional disputes and helping the justices reach consensus on difficult issues of doctrine.

Private Activities

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 StoryStory, Joseph was an adviser to President James Madison and to members of Congress. He even provided drafts of legislation he wanted Congress to adopt. One of the most notorious examples of such advice was a letter written by Justice John Catron to President James Buchanan, in which Catron informed the president of the Court’s decision in Dred Scott v. Sandford (1857) before it was made public. President Lyndon B. Johnson relied on Justice Abe Fortas for counsel on a variety of issues. Several justices, including John McLean, Salmon P. Chase, and Charles Evans Hughes, have sought the presidency. Hughes resigned, however, before accepting the Republican presidential nomination in 1916.

The greatest scandal involving a justice’s extrajudicial private acts led to the resignation of Justice FortasFortas, Abe in 1969. Fortas was not only an adviser to President Johnson but also the recipient of a high fee for giving a law school lecture and, most damning of all, of payments from a private foundation established by Louis Wolfson, a former client and businessperson indicted for federal crimes. Questions of propriety were also raised regarding Associate Justice Louis D. Brandeis’sBrandeis, Louis D. extrajudicial activities. Brandeis attempted to influence U.S. domestic and foreign policy by financially supporting Felix Frankfurter, an adviser to President Franklin D. Roosevelt. Some of the issues of importance to Brandeis, a Progressive, were likely to come before the Court. The Brandeis-Frankfurter-Roosevelt connection was unknown at the time, however, so the justice was able to maintain the appearance of open-mindedness and impartiality.

Criticisms of Extrajudicial Activities

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[case]Youngstown Sheet and Tube Co. v. Sawyer[Youngstown Sheet and Tube Co. v. Sawyer] (1952), in which the Court ordered President Truman to return the steel mills he had nationalized in order to prevent a strike, and United States v. Eichman[case]Eichman, United States v.[Eichman, United States v.] (1990), in which the Court invalidated the Flag Protection Act of 1989 as an infringement on freedom of expression. For the Court to be an effective check on the executive and legislative branches, it must maintain its distance from Congress and the president. The salariesSalaries;justices and benefits of Supreme Court justices rose to the point where justices no longer need to be involved in questionable business dealings. The attention of the media also increased to a point where it is nearly impossible for justices to engage in the kind of clandestine lobbying in which Justices Story and Brandeis were involved.

Further Reading

  • 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.

Advisory opinions

British Law Lords

Chief justice

Fortas, Abe

Hayburn’s Case

Judicial codes and rules

Supreme Court of Canada

Warren, Earl

Washington, George