Supremes Gone Wild 

by Jack R. Johnson 05.2023

When considering Supreme Court scandals, Clarence Thomas’ hanging with conservative billionaire Harlan Crow and getting a free rental for his mom and luxurious vacations is bad, certainly. According to Pro Publica, if Thomas had chartered the plane and the 162-foot yacht himself, the total cost of just one of the trips could have exceeded $500,000.  Additionally, Clarence Thomas said he didn’t understand that he needed to declare these gifts, which—for  a Supreme Court justice –doesn’t  pass the smell test. All this is bad, but historically not the worst. Not by a long shot.  

As scandals go, you might say our highest court was borne in the stench of the didie. Justice John Rutledge, one of our first Supreme Court justices, was ejected from his position after he gave a ranting speech suggesting he would prefer that George Washington die instead of signing the Jay Treaty with England. The Senate ousted him in December 1795, which Rutledge responded to by attempting suicide. John Adams wrote that they had to revoke his post because of his "accelerated and increased Disorder of the Mind." In fairness, Rutledge’s wife had just died, and Adams noted this probably affected the judge’s discernment. 

Justice James Clark McReynolds who served on the court from 1914 to 1941 had no such excuse. After he died in 1946, not a single other living current or former justice attended his funeral. A vocal anti-Semite, McReynold’s also hated African Americans, Germans, and women. According to Robert Longley from A&M Univeristy, whenever Jewish Justice Louis Brandeis spoke, McReynolds would leave the room. Of Jews, he once declared, “For 4,000 years the Lord tried to make something out of Hebrews, then gave it up as impossible and turned them out to prey on mankind in general—like fleas on the dog.” He would often refer to African Americans as “ignorant,” possessing “but a small capacity for radical improvement.” And in the rare event a woman attorney appeared to argue a case before the court, McReynolds would exclaim, “I see the female is here again,” before grandly gathering his robe and leaving the bench.

Then there’s Justice Hugo Black, a Ku Klux Klan Leader who later disavowed the white robes. On October 1, 1937, less than two months after taking his seat on the court, Justice Black was forced to give a nationwide radio address to explain his history. “I did join the Klan. I later resigned.,” he said, but, as late as 1965, Black was complaining that "unfortunately there are some who think that Negroes should have special privileges under the law." Those "special privileges”? Voting.

The closest we have to the Thomas scandal is probably Justice Abe Fortas Appointed to the Supreme Court by President Lyndon Johnson in 1965, Fortas had already faced serious allegations of improperly helping LBJ’s political career while serving on the highest court in the land. His former law partner Paul Porter set up a gig for Fortas to teach summer school at American University. That probably wouldn’t have been especially controversial, except Fortas’s salary wasn’t paid by American University. Rather former Arnold & Porter clients, many of whom had cases potentially heading to the Supreme Court, paid the summer school salary to Fortas. 

Fortas remained on the Supreme Court for another year until another financial scandal sunk his career.  In January 1969, Life magazine discovered that a financier named Louis Wolfson, who was indicted for securities fraud, had entered an agreement to pay Fortas $20,000 a year for life for "consultation" on his securities fraud case.  Justice Fortas returned the money but his reputation was ruined. Though he always denied taking Wolfson’s money, Abe Fortas became the first and so far only Supreme Court justice to resign under threat of impeachment on May 15, 1969.

Yet, the worst scandal in SCOTUS history is the one that really isn’t considered a scandal at all, the establishment of so-called corporate personhood.

We can thank U.S. Senator Roscoe Conkling and Supreme Court Justice Stephen J. Field for this non-scandal scandal. Conkling helped draft the 14th Amendment and he argued to the Supreme Court in San Mateo County v. Southern Pacific Rail Road that the 14th Amendment is not limited to natural persons. In 1882, he produced a journal that seemed to show that the Joint Congressional Committee that drafted the amendment vacillated between using “citizen” and “person” and the drafters chose person specifically to cover corporations. But according to historian Howard Jay Graham, “[t]his part of Conkling’s argument was a deliberate, brazen forgery.”

In a recent podcasts, Historian Heather Cox Richardson points out “That [Conkling’s interpretation] was ridiculous. That was absolutely not on the table [for congress]. But because Conkling put it forward, Justice Field started to rely on it, and he doesn’t say so explicitly until later on in that decade. But the two of them working together established the idea that due process established in the 14th Amendment was not just designed to cover the rights of individuals in the states that were suffering under the legal restrictions put on Black Americans after the Civil War, but that in fact it was designed to protect corporations.”

A powerful speaker, Field influenced other members of the court to accept this interpretation, many of whom had railroad ties. The court never specifically ruled on the concept. Only an informal headnote to the Supreme Court case, Santa Clara County v. Southern Pacific Rail Road, suggests their thinking. “The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.”

Later cases uncritically cited the headnote as if it had been part of the case. From the railroad through Citizens United to the Hobby Lobby decision in which corporate monoliths can now exercise ‘free speech’ and ‘religious choice’ despite having none of the vulnerabilities of a human, much less a ‘soul.’ 

Field remained on the Supreme Court until Dec. 1, 1897 and died two years later, likely senile. By then the power of corporations had come to rule the United States. Technically, Field died with only $65,000 in assets, but his forgery inspired interpretation of the 14th Amendment caused far more damage than any personal scandals might have.