wives, children husbands: supporting roles...wives, children...husbands: supporting roles clare...

Wives, Children . . . Husbands:Supporting Roles

CLARE CUSHMAN∗

In 1965, Hugo L. Black asked his wife, Elizabeth, to host a dinner party. The purpose:to help him persuade Carolyn Agger, wife of Washington attorney Abe Fortas, to allow herhusband to accept President Lyndon B. Johnson’s offer of a seat on the Supreme Court. A taxlawyer at the same firm as Fortas, Agger was displeased that the move would mean a big cutin his salary; she thought he should spend a few more years in his lucrative private practicebefore becoming a judge. After all, he was only fifty-five. Elizabeth Black described the tenseoccasion in a diary entry:

We had invited Carol and Abe Fortasfor dinner in answer to an SOS by[Justice] Bill Douglas, saying theywere having a serious crisis aboutAbe’s going on the Court. Caroltold me they had several big thingsgoing that now had to be given up[improvements to their house inGeorgetown], that they can’t live onthe small Court salary and may haveto give up their new home. LaterHugo talked to Carol in that dearstraightforward way of his. I wasalmost in tears at the things he wassaying and it did have a great soften-ing effect on Carol, I could tell. Hetold how he had deliberately chosenpublic service; how invaluable his

first wife’s role was in his work; howunproductive he was in the yearswhen he was alone; and, bless him,how much he was able to do after hemarried me. How a man needs a wife,in short. Carol asked indignantlyif he was suggesting that she giveup her law practice which was herlife, and Hugo said “Certainly not.”And as to whether Abe would haveto sit out of some cases becauseof Carol’s involvement, they wereonly a minute percent of cases. I dobelieve Hugo’s advice helped. Theystayed until after midnight.1

Fortas relented to the pressure and letJohnson nominate him a few months later.

WIVES, CHILDREN . . . HUSBANDS 265

Agger continued her legal career as a sought-after tax law specialist and became the fam-ily’s principal breadwinner. She cut a colorfulfigure in Washington, driving around in her1953 Rolls Royce and smoking cigars. But sherefused to speak to President Johnson, a closefriend, for months after her husband’s appoint-ment. Her “life had been ruined,”2 she said.

Being the wife or, since 1981, husband ofa Justice has always entailed some sacrificeand certain constraints. So has being the childof a Justice. While family members may haveenjoyed privileged lives and a high social statusin the nation’s capital, that is not the wholestory. A historic examination of the changingrole of the Supreme Court spouse and firsthandanecdotes by Justices’ children help illuminatethe important but often thankless supportingrole that family members have played in thedevelopment of the Supreme Court.

In the early decades of the Court, theJustices boarded together during the SupremeCourt Term while their wives and children re-mained in their hometowns. These separationswere exacerbated by the requirements of rid-ing circuit, and the Justices often struggled tobalance work duties with taking care of theirfamilies. In the 1790s, Hannah Iredell sufferedmore than most Supreme Court wives dur-ing her husband’s absences because she waspainfully shy. As long as the Iredells remainedin their cozy hometown of Edenton, North Car-olina, where Hannah was surrounded by fam-ily and old friends, her shyness was not a prob-lem. Unlike most Justices, however, JamesIredell moved his family to the capital after hisappointment to the Court in 1790, probably fortwo reasons. First, the climate was thought tobe healthier in New York and Philadelphia thanin Edenton, where malaria was endemic. In ad-dition, Iredell most likely believed the rumorsthat Congress would soon abolish the systemof circuit riding, in which case he would neverhave to leave Hannah alone if they lived in thecapital.

Circuit riding, of course, was not abol-ished, and Hannah was on her own in thecapital for long months at a time, expected

to participate in the elaborate social rituals ofthe new federal government—attending recep-tions and paying and receiving social calls, or“visits.” This would have been near torturefor someone who described herself as “almostas helpless as a Child amongst Strangers,”3

and sometimes it all became too muchfor her. Hannah wrote to her circuit-ridinghusband:

I have made no visits. I could not pre-vail on myself to run about the townalone after people whom I had neverseen & whom I did not care if I [ever]saw again. It is impossible for youto make a fashionable woman of me& therefore the best thing you can dowith me I think will be to set me downin Edenton again where I shouldhave nothing to do but attend to myChildren & make perhaps three orfour visits in the year, what a dread-ful situation that would be for a finelady, but to me there could be nothingmore delightful.4

Eventually, after three years in the capital,the Iredells returned to North Carolina. ButIredell still spent many months on the road,during which he fretted about how Hannahand the children were faring in Edenton’s un-healthy climate. Two years after their moveback home, Iredell was still trying to persuadehis wife (unsuccessfully) to consider a returnto Philadelphia:

I am perfectly well, but extremelymortified to find that the Senate havebroken up without a Chief Justice be-ing appointed, as I have too muchreason to fear that owing to that cir-cumstance it will be unavoidable forme to have some Circuit duty to per-form this fall . . . I will at all eventsgo home from the Supreme Court ifI can stay but a fortnight—but howdistressing is this situation? It almostdistracts me. Were you & our dearChildren anywhere in this part of theCountry I should not regard it in the

266 JOURNAL OF SUPREME COURT HISTORY

least—But as it is, it affects me be-yond all expression.

The state of our business is nowsuch that I am persuaded it will bevery seldom that any Judge can stay athome a whole Circuit, so that I musteither resign or we must have in viewsome residence near Philadelphia,I don’t care how retired, or how cheapit is. The account of your long con-tinued ill health has given me greatpain, and I am very apprehensiveyou will suffer relapses during theSummer My anxiety about you andthe Children embitters every enjoy-ment of life. Tho’ I receive the great-est possible distinction and kindnesseverywhere, and experience marksof approbation of my public con-duct highly flattering, yet I constantlytremble at the danger you and ourdear Children may be in without myknowing it in a climate I have so muchreason to dread.5

Justice William Cushing routinelybrought his wife, Hannah Cushing, alongon his travels and even had his one-horseshay outfitted with special receptacles forthe books she read to him during their trips.Although often in frail health, Julia AnnWashington also insisted on accompanyingher husband, Justice Bushrod Washington.While the Cushings and Washingtons werethus spared the anxiety caused by long sep-arations, the travel was nonetheless arduousand undignified. Writing to a relative, HannahCushing described herself and her husbandas “traveling machines [with] no abidingplace in every sense of the word.”6 And ina chatty letter to her friend Abigail Adams,Mrs. Cushing recounted their difficulty inmerely trying to get across the Hudson Riverat a time when New York City was the site ofa yellow fever outbreak:

We have been roving to & from,since we had the pleasure of meetingyou. . . . To avoid N. York we crossed

White plains to Dobb’s ferry . . . & af-ter staying there two nights withoutbeing able to cross, the wind contin-uing very high we went up 20 milesfurther to Kings ferry . . . where theriver is not so wide & the boats better& after waiting there also two nightswe safely passed the ferry, rejoicingas though we had been released fromprison.7

Not coincidentally, Hannah Cushing andJulia Ann Washington were the only Justices’wives in the Court’s early decades who werechildless; the others generally had to stay hometo look after their families and household af-fairs. Some of these women may have enjoyedthe relative independence they had as a resultof their husbands’ absences. Chief Justice Jay’swife Sarah—who had six children to tend to—teased her husband when he was riding circuitin 1790: “We make out very well. Aint youa little fearful of the consequences of leavingme so long sole mistress?”8 But even Mrs. Jayhad her moments of anxiety and distress abouthow her husband was faring on the road. Inone letter, at the close of a litany of illnessesafflicting the family at home, she wrote to herhusband:

“Oh! my dear Mr. Jay should you toobe unwell & be absent from me, & Ideprived of the satisfaction & conso-lation of attending you how wretchedshould I be! . . . Oh my dear Mr. Jayhow I long to see you.”9

Chief Justice John Marshall and his wife,Polly, also maintained a strong union de-spite their frequent physical separation. Thecommuter aspect of their marriage was com-pounded by the fact that Polly Marshall suf-fered nervous disorders and could not leavetheir Richmond, Virginia, home. At Polly’sdeath in 1831 after forty-nine years of mar-riage, John nonetheless reflected on the criti-cal support she had given him: “Her judgmentwas so sound and so safe that I have often re-lied upon it in situations of some perplexity. Ido not remember ever to have regretted the


adoption of her opinion. I have sometimesregretted its rejection.”10 Marshall’s friendJoseph Story sadly conveyed to his own sup-portive wife, Sarah, the depth of Marshall’sgrief and loneliness:

On going into the Chief Justice’sroom this morning, I found him intears. . . . I saw at once that he hadbeen shedding tears over the mem-ory of his own wife, and he has saidto me several times during the term,that the moment he relaxes from busi-ness he feels exceedingly depressed,and rarely goes through a night with-out weeping over his departed wife.She must have been a very extraordi-nary woman so to have attached him,and I think he is the most extraordi-nary man I ever saw, for the depth andtenderness of his feelings.11

Mary Willis Ambler (Polly) and John Marshall raisedsix children to adulthood in their modest Richmondhome. Although Polly suffered from chronic illnessand was housebound, she served as an advisor to herhusband; he mourned her death after forty-nine yearsof marriage with these words: “her judgment was sosound and so safe that I have often relied upon it insituations of some perplexity. I do not remember everto have regretted the adoption of her opinion. I havesometimes regretted its rejection.”

In 1830, Justice John McLean, whohad been serving as Postmaster General inWashington before his Court appointment,opted out of the group boardinghouse arrange-ment and chose to live with his wife, Rebecca,instead. As the city of Washington developedmore pleasantly and the Supreme Court’s Termlengthened, other Justices began bringing theirfamilies to the nation’s capital. Wives weretossed into the social whirl and expected toperform. This meant receiving and returningdaytime social calls, and attending and host-ing formal dinners in the evening—all whilenavigating the elaborate rules of protocol thatgoverned polite society.

The arrival of the Court each year markedthe beginning of Washington’s social season.Each Justice paid a formal social call to all theJustices more senior to him and to all mem-bers of the Cabinet. These calls were then re-ciprocated. There was very little of the formalseparation between the Justices and membersof the political branches (or the Justices andmembers of the Supreme Court bar) that thereis today. According to nineteenth-century pro-tocol, Supreme Court Justices ranked aboveCabinet officials in the social pyramid: theywere on par with U.S. Senators (although theorder of precedence between a Senator and aJustice was the subject of much controversy),just one rung below the President.

Arriving from Keokuk, Iowa, ElizaMiller, the wife of Justice Samuel F. Miller(1862–1890), threw herself into the role ofWashington socialite. She immersed herself inthe rules of protocol governing the Justices andfully leveraged the prestige of her husband’s ti-tle. According to one society reporter:

Mrs. Miller, a matronly lady, bear-ing a feminine resemblance to herhusband, is held in high esteemamong the ladies of the Courtcircle as the authority on the socialetiquette which attaches to their po-sition in fashionable life. The Jus-tice being the senior member of the


Court, in this respect even out-datingthe Chief Justice, is recognized as thepatriarch of the body, and Mrs. Milleris the acknowledged referee and um-pire on all social questions.12

Another reported:

Mrs. Justice Miller . . . assisted by hergrand-daughter . . . gives elegant din-ners, not only to the Supreme Court,but other distinguished people at theCapital. She is a charming host-ess. Her residence is in the best oftaste, and in all her surroundings,there are many marks of luxuriousrefinement. . . . Justice Miller has ab-stracted hours, but is full of life andfun when wakened up in society. Thenation owes them all a world of grat-itude for their purity of character

on the Supreme Bench . . . [The Jus-tices] all stand high in Washington,making no dinner or reception quitecomplete, without one or more of theSupreme Bench and their families.13

But Eliza Miller may have been too so-cially ambitious. When Miller sought to be el-evated to Chief Justice, his brother-in-law fret-ted: “I am afraid his wife will hurt him. . . . Sheis ambitious, imprudent & unscrupulous.”14

Miller was indeed passed over, and Eliza’s starfaded as the city of Washington began attract-ing the newly rich and she was no longer ableto entertain in style on a judicial paycheck.

Malvina Harlan, wife of Kentuckian JohnMarshall Harlan (1877–1911), was unques-tionably an asset to him. She did her duty byreceiving visitors at home on Mondays, thedesignated day for Supreme Court wives tohost. This meant providing an elaborate spread

Malvina Harlan, wife of JohnMarshall Harlan (pictured here ontheir wedding day in 1856), receivedvisitors at home on Mondays, the des-ignated day for Supreme Court wivesto host, and provided an eleganttea service for hundreds of callers.Her Northern background—she wasfrom Indiana—and abhorrence ofslavery influenced her husband, aKentuckian.


for tea and music for dancing—often for asmany as three hundred callers. But she alsostepped beyond the hostess role to play a highlysymbolic hand in inspiring John to write theSupreme Court’s most famous dissent. Un-beknownst to her husband, Malvina had ne-glected to make good on a promise to a friendto give away Harlan’s heirloom inkstand—theone that Chief Justice Roger B. Taney had usedin 1857 to write the Court’s ignominious deci-sion in Dred Scott. Almost forty years later,Justice Harlan wrestled with his dissent inPlessy v. Ferguson—an 1896 decision in whichthe other Justices reaffirmed the notion thatblacks and whites were not equal, thus provid-ing the legal justification for segregation thatwould endure for six decades. Malvina sneak-ily brought out the tainted inkstand to help himformulate his lone dissent. She described theploy in her memoirs:

His dissent (which many lawyers con-sider to have been one of his great-est opinions) cost him several monthsof absorbing labour—his interest andanxiety often disturbing his sleep.Many times he would get up in themiddle of the night, in order to jotdown some thought or paragraphwhich he feared might elude him inthe morning. It was a trying time forhim. In point of years, he was muchthe youngest man on the Bench; andstanding alone, as he did in regard toa decision which the whole countrywas anxiously awaiting, he felt that,on a question of such far-reachingimportance, he must speak, not onlyforcibly but wisely.

In the preparation of his dissentingopinion, he had reached a stage whenhis thoughts refused to flow easily. Heseemed to be in a quagmire of logic,precedent and law. Sunday morningcame, and as the plan which had oc-curred to me, in my wakeful hours ofthe night before, had to be put into

action during his absence from thehouse, I told him that I would not goto church with him that day. Nothingever kept him from church.

As soon as he had left the house,I found the long-hidden Taney ink-stand, gave it a good cleaning andpolishing, and filled it with ink. Thentaking all the other ink-wells from hisstudy table, I put that historic, and in-spiring inkstand directly before hispad of paper; and, as I looked at it,Taney’s inkstand seemed to say to me,“I will help him.”

I was on the look-out for his re-turn, and met him at the front door.In as cheery a voice as I couldmuster (for I was beginning to feelsomewhat conscience-stricken as Irecalled those “evasive answers” ofseveral months before), I said to him:“I have put a bit of inspiration onyour study table. I believe it is justwhat you need and I am sure it willhelp you.” He was full of curios-ity, which I refused to gratify. Assoon as possible he went to his study.His eye lighting upon the little ink-stand, he came running down to myroom to ask where in the world I hadfound it. With mingled shame andjoy I then “’fessed up,” telling himhow I had secretly hidden the ink-stand . . . because I knew how muchhe prized and loved it, and felt sure itought really not to go out of his pos-session. He laughed over my naughtyact and freely forgave it.15

The inkstand did prove inspirational to Har-lan’s dissent. After dipping his pen in it hewrote the visionary words: “Our Constitutionis color blind, and neither knows nor toleratesclasses among citizens.” In doing so, he madea small scratch at undoing the stain of DredScott on the Court and on the nation. Accord-ing to Malvina:


The memory of the historic part thatTaney’s inkstand had played in theDred Scott decision, in temporar-ily tightening the shackles of slav-ery upon the negro race in the ante-bellum days, seemed, that morning,to act like magic in clarifying myhusband’s thoughts in regard to thelaw that had been intended by [Sena-tor Charles] Sumner to protect the re-cently emancipated slaves in the en-joyment of equal “civil rights.” Hispen fairly flew on that day and, withthe running start he then got, he soonfinished his dissent.

It was, I think, a bit of “poeticjustice” that the small inkstand inwhich Taney’s pen had dipped whenhe wrote that famous (or rather in-famous) sentence in which he saidthat “a black man had no rights whicha white man was bound to respect,”should have furnished the ink for adecision in which the black man’sclaim to equal civil rights was aspowerfully, and even passionately as-serted, as it was in my husband’s dis-senting opinion in the famous “CivilRights” case.16

As the twentieth century arrived, SupremeCourt wives and their husbands continued toenjoy a high social status in the nation’s capi-tal, dining at the White House, with membersof Congress, and with foreign ambassadors.In 1906, Justice David J. Brewer expresseddoubts that his friend and bench-mate HenryBillings Brown would retire as promised at ageseventy because Supreme Court “wives cut animportant figure, and of course they are alwaysopposed to it [their husbands retiring].”17

The growing sophistication of the cityof Washington rendered the social duties ofa Supreme Court wife increasingly elaborate.By 1926, Milton Handler, a law clerk to Jus-tice Harlan Fiske Stone, viewed these ritualsas excessive:

It was customary in that era inWashington for visitors to leave cardswhen making a call. Mrs. [Agnes]Stone, for example, would go outsome days in her chauffeured car withas many as 20 to 30 cards. She woulddrive to the embassies, to the homesof the Supreme Court Justices andCabinet Secretaries, and to the WhiteHouse. The chauffeur would hand theStones’ card to the Butler of the es-tablishment. Similarly, visitors woulddrive up to the Stones and deposittheir cards, just to show that they weremaintaining social relations betweendinner parties, which the Stones at-tended practically every night.18

Another Stone clerk, Warner W. Gard-ner, confirmed that the pace had not abateda decade later:

The Stones in 1934–1935 carriedthrough an appalling social calendar.My impression at the time was thatthey dined in company every nightof the week, month in and monthout. The cost was not too great, sinceboth were completely temperate andnever left later than ten-thirty. But,neither then nor now, was the regimeunderstandable to me. Stone, how-ever, was a good conversational-ist and enjoyed it, and Mrs. Stoneseemed, too, to find a real pleasurein the social life of Washington. 19

But not all Justices’ wives played thegame. Dean Acheson, Louis D. Brandeis’law clerk from 1919 to 1921, noted that theBrandeises did not attend many social func-tions. Alice Brandeis kept their social lifemore low-key, welcoming visitors from herhusband’s coterie of progressives in a modestand intimate way.

The Brandeises’ “at home” was pur-poseful and austere. The hostess,erect on a black horsehair sofa,presided at the tea table. Above her,


A clerk to Justice Harlan Fiske Stone in the 1930s recalled that the Stones had a relentless social life: “Myimpression at the time was that they dined in company every night of the week, month in and month out. Thecost was not too great, since both were completely temperate and never left later than ten-thirty.” Pictured areSupreme Court wives Winifred Reed, Antoinette Hughes, Agnes Stone, and Elizabeth Roberts at a breakfasthonoring the First Lady, Eleanor Roosevelt, in 1938.

an engraved tiger couchant, gaz-ing off over pretty dreary country,evoked depressing memories of ourdentist’s waiting room. Two femaleacolytes, often my wife and anotherconscripted pupil of Mrs. Brandeis’sweekly seminar on child education,assisted her. The current law clerkpresented new-comers. This done,disciples gathered in a semicirclearound the Justice. For the most partthey were young and with spouses—lawyers in government and out, writ-ers, conservationists from Agricul-ture and Interior, frustrated regulatorsof utilities or monopolies, and, often,pilgrims to this shrine.20

And what of Justices who were unmar-ried? Thrice-widowed Chief Justice SalmonP. Chase (1864–1873) relied on his charmingand talented daughter, Kate, to serve as his so-cial escort and hostess. She delighted in therole and was the toast of the town. When shemarried a wealthy Senator, William Sprague,the couple decided to live with her father inhis Washington home, where they entertainedlavishly. Although the Spragues spent morethan six months of the year in William’s homestate of Rhode Island, the Senator paid for theexpansion and upkeep of Chase’s house, andfor his servants. This was a relief to the ChiefJustice, who had a hard time reciprocating themany elegant dinners he was invited to withoutstraining his modest budget.


Thrice-widowed Chief JusticeSalmon P. Chase relied on hischarming and talented daughter,Kate, to serve as his social escortand hostess. She delighted inthe role and was the toast of thenation’s capital. When she marrieda wealthy Rhode Island Senator,William Sprague, the coupledecided to live with her father inhis Washington home, where theyentertained lavishly.

Unfortunately, Sprague, a heavy drinker,also had a nasty streak. He sat on the Sen-ate Appropriations Committee and was in theposition to vote for a badly needed salary aug-mentation for the Justices. In 1866, Chasefound himself in the position of lobbying hisown son-in-law:

No judge can now live and payhis travelling expenses on hissalary . . . Its amount practically is notas large as it was at the organizationof the Government. That of the Chief

Justice should be at least 12,000 andthat of each Associate 10,000.”21

The Committee did raise the salaries, butonly to $8,000 (Associate Justices) and $8,500(Chief Justice). The higher figures originallyrequested had failed to pass by a single Sen-ate vote—Sprague’s. Kate divorced him soonafter.

Lifelong bachelor James C. McReynolds(1914–1941) resorted to pressing his clerksinto taking on some of the social duties of awife. According to John Knox, his clerk in the


1936 Term, the irascible Justice found it tire-some to explain how the calling-card systemworked—training he had to give every timehe broke in a new clerk. A flat card meant itwas delivered by a chauffeur; if the corner wasbent then the sender had delivered it in person.Justice McReynolds informed his clerk:

When all these people leave their call-ing cards for me here at 2400 [myapartment], it is then up to me to de-cide which cards I wish to acknowl-edge. Most of them will be ignored,as I haven’t the time or the inclina-tion to meet many people. The cardswhich have been acknowledged canbe kept in a small pile, but the oth-ers thrown away. And my card willalmost always be sent flat—meaningthat it should be delivered by Harry[Parker, his butler/chauffeur] and notby me, or else sent through the mail.I very seldom make a special trip toleave my calling card in person withanyone.22

Unfortunately for Knox, he served as aclerk during the high-profile Court-packingepisode, when President Franklin D. Rooseveltproposed a plan to add new Justices to theCourt because it had been striking down hisNew Deal legislation. Snaring a Justice forone of her dinner parties was at the top ofevery Washington hostess’s list that year, asthe Court was so much in the spotlight. Knoxwas saddled with extra work even though theJustice chose to decline these invitations:

I soon realized that McReynolds wasindeed serious about the Washing-ton practice of receiving and send-ing calling cards. This was no mat-ter which could be treated lightly, atleast with him. And once his cardwas received, the family he had ac-knowledged was then free to in-vite the Justice to teas, dinners, re-ceptions, and the like. However, heoften declined such invitations after

the Court-packing controversy burstso unexpectedly upon the nation inFebruary 1937.23

The Depression and World War II putan end to these frenetic social traditions.Chief Justice Charles Evans Hughes’s daugh-ter, Elizabeth, reported that her mother hadfound home-based receptions burdensome inthe 1930s and was relieved when the customended:

Those were the days of receptions—not cocktail parties, but afternoonteas. Wives of Cabinet officers andof other officials were “at home” onvarious days of the week. For exam-ple, Mondays were reserved for theSupreme Court ladies, Wednesdaysfor the Cabinet wives, Fridays for theembassies and legations, etc. In ad-dition, the official wives in all cate-gories often paid calls on others andleft calling cards. Such practices for-tunately were abandoned during theSecond World War. Not only werethose elegant teas costly; they weretime-consuming and tiring.24

In the postwar era, ethical standardsevolved to the point that judges were generallyexpected to distance themselves from mem-bers of the legislative and executive branchesto maintain impartiality. By the 1960s, thesocial obligations of a Supreme Court Jus-tice’s wife were consequently more subdued.Dorothy Goldberg, who had been a Cabinetwife prior to her husband Arthur’s appoint-ment to the Supreme Court in 1962, comparedthe two roles:

Formal social life on the Court wasquieter than on the Cabinet. Jus-tices and their wives are not ex-pected to reciprocate invitations ex-tended to them by others, nor dothey very often accept invitationsother than from their private friends.We had, however, become friendlywith some of the ambassadors, and


we continued to receive invitationsfrom them and from some membersof the Cabinet. We rarely acceptedThursday evening invitations, how-ever—conference was on Friday; andwe declined others if they brought thetotal number of our evenings out tomore than one or two a week. . . .

The Supreme Court is the onlyplace in the government where wivesand family are accorded a specialcourtesy and regarded as a group. Ofcourse, it is easier when only ninepersons are involved. The Congresshas a wives’ gallery, to be sure, andthe President’s family has the firstrow in the family section on openingof Congress occasions, but the Ex-ecutive, to my knowledge, makes noprovision for the inclusion of fam-ily during work hours and probablywould prefer that wives remain athome, to emerge for picture-takingpurposes only. Early in the Nixon ad-ministration, there was an effort toshow how wives were included in abriefing with their husbands, but thatlaudable effort seemed to collapse al-most immediately.

On the Court, whenever a case isbeing argued, there is always room forCourt wives in the family pews. Thereis also a dining room where theymay gather for luncheons, though of-ficially it is a place for entertainingvisiting foreign jurists or for intimateceremonial events, such as the pre-sentation of a portrait by members ofa Judge’s family.

I had not known about the familypews and was surprised to learn fromNina Warren [wife of the Chief Jus-tice] that a wife was expected to bethere when her husband delivered animportant opinion. Perhaps only Ninaexpected that. “Dorothy, we haven’tbeen seeing you lately.” When I

looked as puzzled as I felt, she ex-plained that the wives often appearedfor Monday morning opinions, par-ticularly if their husbands were mak-ing important contributions. I hadthought that Arthur could surely de-liver himself of an opinion withoutmy presence. I had never been es-sential previously, though I had al-ways been present at his steel hear-ings [Goldberg had been Secretary ofLabor], and at conventions and vari-ous meetings, but that was becausehe invited me, not because I was ex-pected.25

Josephine Powell apparently slipped up on thisetiquette as well. Her husband, Justice Lewis F.Powell, Jr., recalled that she received a gentleteasing from his colleague not long after hejoined the Court in 1972:

There is [a] custom, that we[Mrs. Powell and I] violated the firsttime I handed down an opinion. Thewife of a justice delivering an opinionis expected to be present in the court-room and to be seated in a particularplace. I got the word and I advised Joand she showed up about 15 minuteslate, which is not unusual in the Pow-ell family. She immediately receiveda note from Justice Potter Stewart,sent there by one of the pages, say-ing “You just missed your husband’sgreatest opinion.”26

Although spouses hold a permanent ring-side seat in the section of the Courtroomreserved for family members, few, otherthan Elizabeth Black and Dorothy Goldberg,have recorded eyewitness accounts. Instead,Supreme Court wives and husbands haveprized discretion. In her memoir, DorothyGoldberg recalled being struck by the em-phasis wives placed on this value—and bythe courteous manner in which their husbandstreated them:


[T]here is a courtliness in [the Jus-tices’] bearing toward their wives,an observance of old-fashioned man-ners, at least in their publicly visiblerelationships. One almost never seesa Justice walking several feet aheadof a wife who is breathlessly tryingto walk alongside him as he rushesto talk to another Justice or lawyer.Only rarely does one see a Justiceskillfully ignoring a wife or anotherJustice’s wife after the first routine ar-rival kiss. I saw the Justices and theirwives through rose-colored glasses,I suppose, glimpsing only affection,devotion, loving kindness, with ev-eryone trying to avoid the slightestbit of gossip.27

In addition to being discreet, SupremeCourt spouses have been expected to preservethe dignity of the institution by behaving withdecorum. Hugo L. Black, who served on theSupreme Court from 1937 to 1971, made a lit-tle speech to this effect when he proposed tohis second wife, Elizabeth, in 1957. He madeit clear that the Court would always be his firstlove and that, to honor the institution, her be-havior must always be beyond reproach. Sherecorded in her diary his visit to her house topop the question:

He took me by both my hands andsat me down on the sofa next tohim. Hugo Black did not speak ofmarriage. He spoke of love and theSupreme Court. “Who knows whatlove is?” Hugo asked me musingly.“It is a chemical blend of hormones,happiness, and harmony,” he went onto say. “But I have a prior love af-fair for almost twenty years now withan institution. It is with the SupremeCourt. I have a tremendous respectfor the prestige of the Court. Wehave to act on so many controversialmatters and we are bound to makesome people mad at every decision

we make. Therefore, in my personallife I have had to be like Caesar’swife: above reproach. I have to knowthat the woman I marry is a one-manwoman. The woman I marry will bearound extremely attractive intellec-tual men. I am seventy-one years old.You are twenty-two years youngerthan I. In another five or ten yearsyou may not find me as attractive asyou do now. If that were to happenand you wanted a divorce, I wouldgive you one. But I think it wouldfinish me and hurt the prestige of theCourt.”28

Elizabeth Black proved to be a support-ive wife and a useful sounding board whenher husband was wrestling with difficult cases.Apparently, Justice Black was partial to noc-turnal discussions:

Almost invariably, on an opinion hethinks to be very important, Hugoawakens in the middle of the nightthinking about it. Soon he pulls thechain to turn on the light. “Darling,”he says to me, “are you awake?” Bythat time I am, of course, fully awake.“I am bothered about a case.” “Tellme about it,” I say. “Well this is whatit is all about . . . ” Then he recountsin detail and with passion the horri-ble injustice being perpetrated on aperson because of his brethren’s fail-ure to see it his way. “I will have towrite it on very narrow grounds if Iwant to get a Court,” he says, nam-ing those he has with him and thoseagainst.

Sometimes this unwinds him,sometimes not. If he doesn’t feel hecan go to sleep, he says, “Now it’sthree o’clock in the morning andI have just got to be fresh for theConference tomorrow. I need sleep.What do you think I ought to do?”Then I suggest, “Why don’t you take


a little bourbon to make you sleepy?”(Hugo is terribly inhibited about tak-ing liquor and usually wants me to bethe one to suggest it.) And so he poursa splash of bourbon on ice, fills theglass with water, and soon is soundasleep. The next morning he awakensas bright and clear-minded as can be,and he approaches the day with hisusual eager zest for life and vast goodhumor.29

Elizabeth Black also enjoyed helping tolook after each year’s new crop of clerks by oc-casionally hosting them in her home. A clerkto Byron R. White (1962–1993) recalls thatthe Justice’s wife, Marion, similarly adopted anurturing role: “White took a proprietary in-terest in her husband’s law clerks—recordingmarriages and births, encouraging the unmar-ried to settle down, and offering advice onthe proper balance between career and fam-ily.”30 To enhance clerks’ year-long stay inthe nation’s capital, many wives have orga-nized sightseeing expeditions for them. DottieBlackmun, for example, arranged for clerks tovisit the FBI and the White House, and sheaccompanied them to see the cherry blossomsevery spring.

Wives have traditionally had to treadcarefully when participating in public life,as even volunteer activities could potentiallypose a conflict of interest for the Justice.If such a conflict were to occur, the Jus-tice may decide he should disqualify himself,leaving only eight Court members to decidethe case and introducing the possibility of astalemate. To drive home the point, ArthurGoldberg once admonished his wife: “Lis-ten, Do[rothy], when I took the oath of of-fice, whether you know it or not, you did too.Get it?”31 For Dorothy, the hardest part of be-ing a Supreme Court wife was being told torestrict her involvement in political activismand having to turn down all but a few char-ity organizations that sought her help. NinaWarren, the Chief Justice’s wife, told her that

she supported the Salvation Army in part be-cause it was a safe choice. One incident inparticular made Dorothy realize her position:

The code was brought home to mepersonally in November 1962, on theoccasion of the Thanksgiving Dayfootball match between a predomi-nantly black Washington high schooland a predominantly white school. Afracas ensued that went beyond anyusual team competitiveness and wasthe first of the bitter racial clasheserupting publicly; It was, at least, thefirst of which I was aware. I thoughtit important to call Charles Horsky,Presidential Assistant for the Dis-trict of Columbia, to tell him that itwas a sign that something had bet-ter be done quickly to alleviate risingtensions. He agreed. It occurred tome to invite the high school superin-tendent, the administrative staff, andMr. Henley of the Urban Service, thenewly funded school-volunteer pro-gram, to meet with Mr. Horsky andthe others to discuss what the schoolscould do to avoid similar situationsand what the private sector and gov-ernment might do to help. I unthink-ingly sent out invitations to a meet-ing in the wives’ dining room of theCourt, since I had always had full per-mission from Arthur to do so in theDepartment of Labor.

When I phoned Nina Warren [theChief Justice’s wife] to invite her,she said, “Have you talked withMrs. McHugh?” (Mrs. Margaret K.McHugh was secretary to the Chief.)I said no, I hadn’t thought to in-vite her. Nina said nothing further,but that evening, at a dinner at theembassy of Israel, the Chief cameup to me and said earnestly, whilewagging his index finger, “Dorothy,Mrs. McHugh tells me you’re


John O’Connor (right) became the first Supreme Court husband in 1981. He was joined by Martin Gins-burg (left) in 1993. A talented chef, Ginsburg relished taking his turn cooking for Supreme Court spouseluncheons. “Aware that one aspect of a spouse’s job is to bind in an institution defined by differences, heseemed eager to do his part,” recalls Cathleen Douglas Stone, widow of Justice William O. Douglas.

planning on inviting school officialsto the Court. That is impermissi-ble. Arthur would have to disqual-ify himself if a case arose involv-ing the schools.” I was vexed withmy obtuseness at having to learn thehard way all the fundamental factsof everyday life. A person of my ageshould not have been that naı̈ve, I re-alized, and now again I was marchinginto new areas without first havingthought to ask about directions.32

Many contemporary Justices now arriveat the Court with spouses, like Carolyn Agger,who have careers of their own. Conflict-of-interest concerns, particularly for wives andhusbands working in the legal profession or inpolitics, are increasingly an issue. A spouse’sjob may also engender conflicts of interest inmore indirect ways as well. For example, in1997, Martin Ginsburg, a prominent tax lawyer

and professor at Georgetown University LawCenter, ordered his broker to sell all the stocksin his individual retirement account so that hiswife, Justice Ruth Bader Ginsburg, would nothave to worry about disqualifying herself whena company in the account was represented ina case before the Supreme Court. He had ear-lier sold the couple’s jointly held stocks whenhis wife became an appellate court judge.33

Despite these limitations, Martin Ginsburgdismissed any notion of personal sacrifice be-cause of his wife’s career: “I have been sup-portive of my wife since the beginning of time,and she has been supportive of me. It’s not sac-rifice; it’s family.”34 Indeed, Martin, who diedin 2010, took over responsibility early in themarriage for preparing meals both for fam-ily suppers and for the gourmet dinners theyhosted. On one occasion he may even havetried to be too supportive. When Ruth joinedthe Court in 1991, Martin decided to devisea unique response system to relieve his wife


from the burden of answering the daily floodof correspondence that came her way. JusticeGinsburg humorously described this attemptto protect her:

During my first months on the CourtI received, week after week, as I stilldo, literally hundreds of letters—nowadays increasingly fedexes,faxes, and emails—requesting allmanner of responses. Brought upunder instructions that plates mustbe cleaned and communicationsanswered, I was drowning in corre-spondence despite the best efforts ofmy resourceful secretaries to containthe flood.

Early in 1994, Justice Scalia andI traveled to India for a judicial ex-change. In my absence, my spousetested his conviction that my mailcould be handled more efficiently. Hevisited chambers, checked the incom-ing correspondence, grouped the re-quests into a dozen or so categories,and devised an all-purpose responsefor my secretaries’ signature. When Ireturned, he gave me the form, whichto this day, he regards as a model ofutility and grace. I will read a fewparts of the letter my husband com-posed. You may judge for yourself itsusefulness and grace.

“You recently wrote Justice Gins-burg. She would respond personallyif she could, but (as Frederick toldMabel in Gilbert & Sullivan’s Piratesof Penzance) she is not able. Incom-ing mail reached flood levels monthsago and shows no sign of receding. Tohelp the Justice stay above water, wehave endeavored to explain why shecannot do what you have asked herto do. Please refer to the paragraphbelow with the caption that best fitsyour request.

“Favorite Recipes. The Justice wasexpelled from the kitchen nearly

three decades ago by her food-lovingchildren. She no longer cooks and theone recipe from her youth, tuna fishcasserole, is nobody’s favorite.

“Photograph. Justice Ginsburg isflattered, indeed amazed, by the num-ber of requests for her photograph.She is now 61 years of age ah, thosewere the days!—and understandablykeeps no supply.

“Are We Related? The birth namesof the Justice’s parents are Bader andAmster. Many who bear those nameshave written, giving details of ori-gin and immigration. While the in-formation is engrossing, you and sheprobably are not related within anyreasonable degree of consanguinity.Justice Ginsburg knows, or knew, allof the issue of all in her family fortu-nate enough to make their way to theU.S.A.”

I will spare you my husband’sthoughts on Fund-raising, SchoolProjects, Congratulatory Letters,Document Requests, Sundry Invita-tions, and proceed to one last cate-gory:

“May I Visit? If you are any of theJustice’s four grandchildren and wishto visit, she will be overjoyed. If youare a writer or researcher and wantto observe the work of Chambers, theanswer is ‘no.’ Confidentiality reallymatters in this workplace.”

My secretaries, you will not be sur-prised to learn, vetoed my husband’sletter, and in the ensuing years theyhave managed to cope with the mailflood through measures more sympa-thique.35

Being the child of a Supreme Court Jus-tice can also be a complex proposition. It hasits privileges, but also its responsibilities. Inthe early decades of the Court, children, liketheir mother, had to endure long separations


Elizabeth Hughes (shown here atage 9) enjoyed the privileges of be-ing the daughter of a Supreme CourtJustice when her father was ap-pointed in 1910, but also learneddiscretion. “Although father neverdiscussed cases pending before theCourt, of course, he occasionally ex-pressed a confidential opinion oncurrent events; but he always cau-tioned us with the remark: ‘This isnot to be repeated to anyone.”’

from their father when he left for a SupremeCourt session or to ride circuit. When ChiefJustice Oliver Ellsworth embarked in 1797 onthe 1,800-mile Southern circuit encompass-ing North Carolina, South Carolina and Geor-gia, he made a promise to his son back inConnecticut:

Daddy is going about a thousandmiles further off, where the orangesgrow—and he will begin to comehome & come as fast as he can, andwill bring some oranges.36

Charles Evans Hughes’s daughter, Elizabeth,said she greatly enjoyed the privileges of be-ing the daughter of a Justice when he was ap-pointed in 1910. She learned, however, to becircumspect about any remarks she overheard:

I remember well the rides in mother’selectric automobile to take father tothe Court and often call for him there.

During that period I began to realizethat my family was different and Ifelt a compelling need to do the bestI could so as not to “let father down.”There was no mention of this at home;but my brother, sisters, and I just felt itand carried on as best we could. . . . Iwas allowed to join the family at din-ner at an unusually early age, becausemy parents realized that otherwise Iwould be alone. Thus I was fortunateenough to be allowed to listen andabsorb when guests came; and dis-tinguished ones some of them were!Children were “seen and not heard”in those days, and to me that seemedan advantage. I wouldn’t have ven-tured a remark in any event, but Ilistened carefully and tried to under-stand what I heard. Although fathernever discussed cases pending before


the Court, of course, he occasionallyexpressed a confidential opinion oncurrent events; but he always cau-tioned us with the remark: “This isnot to be repeated to anyone.” Wenever did and were benefited by thatearly training.37

Children can also be an important pipelineof information to the Justices by keeping themabreast of what is going on outside the Court’smarble pillars. Sometimes, though, even so-licited advice from children can be burden-some. Justice Harry A. Blackmun’s youngestdaughter, Susan, remembers advising her fa-ther on the issue of abortion in 1972 before hewrote the Court’s opinion in Roe v. Wade. Itwas a long way from the “seen and not heard”days of Elizabeth Hughes:

All three of us girls happened tobe in Washington soon after Justice[Warren] Burger had assigned theopinion to Dad. During a family din-ner, Dad brought up the issue. “Whatare your views on abortion?” he askedthe four women at his table. Mom’sanswer was slightly to the right ofcenter. She promoted choice but withsome restrictions. Sally’s reply wascarefully thought out and middle ofthe road, the route she has taken allher life. Lucky girl. Nancy, a Rad-cliffe and Harvard graduate, soundedoff with an intellectually leftish opin-ion. I had not yet emerged from myhippie phase and spouted out a far-to-the-left, shake-the-old-man-up re-sponse. Dad put down his fork mid-bite and pushed down his chair. “Ithink I’ll go lie down,” he said. “I’mgetting a headache.”38

Having a parent on the Supreme Courtcan impact a child’s career path. ElizabethHughes’s older brother, Charles, found thisout the hard way when he was serving as So-licitor General in the 1930s. His father hadstepped down from the Court in 1916 to run,

unsuccessfully, for President on the Republi-can ticket. Facing a vacancy upon the death ofChief Justice William H. Taft, President Her-bert Hoover was advised that he should offerthe seat to Hughes senior, now a New Yorklawyer, as a courtesy. The assumption was thathe would not accept the offer, as going on theBench meant that his son would have to resignas Solicitor General to avoid a conflict of in-terest. The hope was that Hoover then couldpromote Associate Justice Harlan Fiske Stoneto the center chair and appoint Learned Hand,a New York judge of enormous talent and na-tional reputation, to fill Stone’s seat. This didnot work out as planned.

Joseph P. Cotton, Acting Secretary ofState and an old and trusted friend of PresidentHoover’s, told his friend, Harvard law schoolprofessor Felix Frankfurter, the inside story onthis father/son incident. A year later, Frank-furter related Cotton’s account to FrederickBernays Weiner, his former student. Weinerrelays it here:

News of the impending Taft retire-ment reached the president whileMr. Cotton was with him. The latterimmediately said, in substance—andthe conversations that follow are, nec-essarily, given in substance—“Thatprovides you with a great opportu-nity, Mr. President. Now you can pro-mote Justice Stone to be Chief jus-tice.” Justice Stone was not only amember of Hoover’s medicine ballcabinet [his work-out group] thatmet daily on the White House lawnat 7:30 A.M., but Justice and Mrs.Stone had long been close friends ofthe Hoovers, an intimacy reflectedin their Sunday evening suppers to-gether over many years. “And then,”continued Cotton, “you can appointJudge Learned Hand to fill Stone’splace, and thus put on the SupremeCourt the most distinguished judgeon the bench today.”


The President had his doubts.“[Promoting Associate Justice Stone]would be fine, very fine. But I feelI must offer the chief Justiceship toGovernor Hughes. As a former Jus-tice there can be no question of hisqualifications, and I feel so greatlyobliged to him for that splendidspeech he made for me on the Sundaybefore the election that it would beunforgivable ingratitude on my partnot to offer him this position.”

“But Mr. President,” said Cot-ton, “Hughes can’t take it. His sonCharles, Jr., is your Solicitor General,and in that job he handles all govern-ment litigation before the SupremeCourt. That comes to about 40 per-cent of all the cases there. Conse-quently, if the father is Chief Justice,the son can’t be Solicitor General.That means that Governor Hugheswon’t accept. “Well,” said the Pres-ident “if he won’t, that solves ourproblem. Then I can promote Stoneand appoint your friend Hand. But,since the public knows Hughes andnot Hand, it would be fine to an-nounce that I had offered the post toHughes before appointing Stone andHand. So I really must make the offerto Hughes.”

Which he proceeded to do, over thetelephone . . .

And then—here I quote Cottonas related by Frankfurter, this timeverbatim—“The son-of-a-bitch nevereven thought of his son!” For Hughesaccepted then and there.39

When this story came out, Hoover deniedit. The President even wrote to Hughes directlyto contradict it. Frankfurter later retracted thepart about Hughes accepting the offer withouthesitation over the telephone and Hoover crit-icizing Hughes for not having given his son asecond thought. Apparently, two conservative

Justices already had been sent up to New Yorkto sound out whether Hughes would take theChief’s job, if offered. Hughes thus had beenafforded plenty of time to think over the offerand consult with his son before accepting.

Although this eyewitness account is third-hand and suspect, the facts nonetheless re-main. Hughes did indeed take the Chief Jus-tice job, and his son resigned the Solic-itor Generalship—perhaps the most presti-gious job for a lawyer in America. Hughes,Jr., stepped down the day after his fatherwas sworn in and never held federal officeagain.40

A similar father/son episode occurred in1967, but in reverse. President Lyndon B.Johnson wanted to remove Truman appointeeTom C. Clark (1949–1967) from the Court sohe could fill the vacancy with his own pick.He seized on the idea of appointing RamseyClark, the Justice’s son, as Attorney General,to force a conflict of interest (the Court getsmany of its cases from the Department of Jus-tice). Ramsey tried to persuade the Presidentthat as Attorney General he would not be in-fluenced by his father, and vice versa. Unlikethe Solicitor General, who argues frequently,the Attorney General usually only presents onetoken case before the Court. Ramsey told Pres-ident Johnson that his father would not resignbecause, at age sixty-seven, Clark Sr. was atthe peak of his powers: “I felt that . . . my dad’scareer had been the great pride of our familyand that it was unthinkable that he would re-sign. I told him that and that was the extentof the discussion. It was a little comment thatwas made several times but I thought it wasunthinkable that he would resign.”41 He alsosaid it would be impolitic for Johnson to forcehim off the Court: “In the police communityand some other conservative areas Dad ranksawfully high. For you to replace him with aliberal would hurt you.”42 But, according toClark, Jr., Johnson was stubborn:

[I]f my judgment is that you becomeattorney general, [Tom Clark] would


Justice Tom Clark graciously gave up his seat on the Court in 1967 so that his son, Ramsey Clark (at left,being sworn in by his father as assistant attorney general), could serve as Attorney General. “He gave whatonce seemed to me too much: career, power, prestige—the work of a lifetime—cut off prematurely as heretired from the Supreme Court. He never discussed it,” recalled Ramsey Clark.

have to leave the Court. For no otherreason than the public appearance ofan old man sitting on his boy’s case.Every taxi driver in the country, he’dtell me that the old man couldn’tjudge fairly what his old boy is send-ing up [laughter].43

Much to Ramsey’s surprise, Justice Clark didresign in 1967, giving up his lifetime seat so hisson could serve what turned out to be two yearsas Attorney General. Still energetic, Clark ac-cepted invitations to sit on federal courts inall judicial circuits in the country to help withheavy caseloads. Ramsey Clark eulogized hisfather in 1977 with these words:

Tom Clark was a giver. He gave whatonce seemed to me too much: ca-

reer, power, prestige—the work of alifetime—cut off prematurely as heretired from the Supreme Court. Henever discussed it. He never evenmentioned it. Instead, he turned tothings like traffic courts and for threeyears he labored that the good peopleof this land brought before municipalcourts would see principle possessedthere, truth found and applied in theircases.44

But a son or daughter need not be atop government attorney to face conflicts ofinterest. For example, Eugene Scalia, oneof Justice Antonin Scalia’s nine children, iscurrently a labor-law specialist and a part-ner at a Washington law firm whose appellate


The children of Earl Warren (top left, in this 1937 photo) were used to the political spotlight having grownup in the California Governor’s mansion. But when their father later served as Chief Justice, Earl Warren, Jr.,(front row second from right) called it “[s]howdown time, a period of about 20 years when we would be forcedto defend or refute what the Supreme Court was doing. And it was terribly difficult—for regardless of politicalpersuasion or personal feelings, we, as individuals, had to take stands.”

lawyers often present cases before the Court.Federal law requires that, like other federaljudges, Justice Scalia would have to disqual-ify himself if the outcome of a case would“substantially” affect his son’s earnings. TheSupreme Court has issued a written policy thatJustices will remove themselves from caseswhen a relative is a partner in a firm han-dling the case, unless the firm has providedthe Court with “written assurances that in-come from Supreme Court litigation is, on apermanent basis, excluded from our relatives’partnership shares.” Eugene Scalia’s firm hassupplied such assurances to the Court. Accord-ingly, he receives a smaller paycheck than hislaw partners because his father sits on the HighBench.45

When a Justice’s decisions come undercriticism, his or her children are often af-

fected. After Hugo L. Black cast his vote todesegregate schools in 1954, he was so vili-fied in his native Alabama that his son had togive up his law practice in Birmingham andmove to Florida because he, too, was ostra-cized. Perhaps the most poignant descriptionof the complexities of having a parent on theSupreme Court comes from Chief Justice EarlWarren’s son, Earl, Jr. He and his five sib-lings found themselves being held account-able for the groundbreaking and controversialdirection their father’s Court was taking in the1950s and 1960s. Under Warren, the Courtoverturned precedents of earlier Courts andgreatly expanded constitutional rights for in-dividuals. According to Warren, Jr., living faraway from Washington did not insulate himfrom the repercussions of what was happeningon the Court at the time:


Then came my father’s appointmentto the Supreme Court, which wasa turning point in all our lives. Wewere basically adults at the time,so only our parents moved to theDistrict of Columbia. Now we wereseparated geographically. Now wewere no longer politically naive, butacutely aware of what my father hadbeen, what he had done, what he was,and what he believed in. But none ofus envisioned the controversy whichwould follow his appointment, northe impact on our individual liveswhich would result. We were then,and subsequently, politically divided;some Republicans, some Democrats,some Independents, some decidedlyliberal, others ultraconservative, andsome middle-of-the-roaders. In thisrespect, I am including an “expandedfamily” which includes spouses andtheir families, for our family has al-ways been deemed to include all in-volved in it. It should be emphasizedthat my mother was always apoliti-cal and that my father never tried toimpress any particular political phi-losophy on any family member.

Whereas we had previously feltsome focusing of the political spot-light upon us, this was Showdowntime, a period of about 20 yearswhen we would be forced to de-fend or refute what the SupremeCourt was doing. And it was terri-bly difficult—for regardless of po-litical persuasion or personal feel-ings, we, as individuals, had to takestands. There was a stigma to be-ing in the family and it took manystrange turns. Friends became ene-mies. Enemies became friends. And,in most cases, both became skeptics.We had to explain, disavow or sup-port, for the Court was one of themajor issues of our time. And this af-

fected our personal lives immensely.Yet through all of this, my fatherand mother remained the same asalways—stoic, serene, totally under-standing, and one-hundred-percentparents. And because of this, they be-came the greatest sources of earthlystrength that we had, as well as sym-bols of what we should strive to be.46

ENDNOTES∗Editor’s Note: This article is excerpted from Clare Cush-

man, Courtwatchers: Eyewitness Accounts in SupremeCourt History (Roman & Littlefield, 2011) and is

reprinted with permission.1Elizabeth Black, diary entry, March 1, 1965, reprinted in

Hugo L. Black and Elizabeth Black, Mr. Justice and Mrs.Black: The Memoirs of Hugo L. Black and ElizabethBlack (New York: Random House, 1986), 120–21.2In a phone conversation between Lyndon B. Johnson

and Mike Mansfield, July 30, 1965, President Johnson

mentions that Agger used this phrase. Citation #8415,

WH6507.09, LBJ Library, at http://whitehousetapes.net/

exhibit/lbjs-nomination-abe-fortas-supreme-court-july-

1965 (last visited Dec. 4, 2011). Apparently, Fortas even

asked the White House to delay his Senate nomination

hearings to give him time to persuade his wife to support

his nomination.3Letter from Hannah Iredell to James Iredell,

October 21, 1790, reprinted in Natalie Wexler, A MoreObedient Wife: A Novel of the Supreme Court (Wash-

ington, D.C.: Kalorama Press, 2006), 53. Thanks to Natalie

Wexler for her considerable help with this discussion of

Hannah Iredell.4Letter from Hannah Iredell to James Iredell, Novem-

ber 7, 1790, reprinted in Maeva Marcus, ed., The Docu-mentary History of the Supreme Court of the UnitedStates, 1789–1800, 8 vols. (New York: Columbia Univer-

sity Press, 1980–2009), 2:105.5Letter from James Iredell to Hannah Iredell, July 2, 1795,

reprinted in Marcus, Documentary History, 3:66.6Quoted in Old Scituate (Boston: Chief Justice Cushing

Chapter, Daughters of the American Revolution, 1921),

37.7Letter from Hannah Cushing to Abigail Adams, Octo-

ber 8, 1798, reprinted in Marcus, Documentary History,

3:296.8Letter from Sarah Jay to John Jay, May 15, 1790,

reprinted in Henry P. Johnston, ed., The Correspondenceand Public Papers of John Jay, 4 vols. (New York: Burt

Franklin, reprinted, 1970), 3:399.9Letter from Sarah Jay to John Jay, November 13, 1791,

reprinted in Selected Letters of John Jay and Sarah


Livingston Jay: Correspondence by or to the FirstChief Justice of the United States and His Wife, eds.

Landa M. Freeman. Louise V. North, and Janet M. Wedge

(Jefferson, N.C.: McFarland Co., Inc., 2005), 201.10John Marshall’s Eulogy of Polly Marshall, December

25, 1832, by John Marshall, reprinted in John Edward

Oster, ed., The Political and Economic Doctrines ofJohn Marshall (New York: The Neale Publishing Co.,

1914), 203.11Letter from Joseph Story to Sarah Story, March 4,

1832, reprinted in William W. Story, Life and Lettersof Joseph Story, 2 vols. (Boston: Little & Brown, 1851),

2:86–87.12Randolph Keim, Society in Washington: Its NotedMen, Accomplished Women, Established Customs andNotable Events (Washington, D.C.: Harrisburg (Pa.) Pub-

lishing, 1887), 122–24.13Mrs. E. N. Chapin, American Court Gossip; or, Lifeat the National Capitol (Marshalltown, Ia.: Chapin &

Harwell, 1887), 249.14William Pitt Ballinger, diary entry, October 14, 1871,

Box 2Q425, Briscoe Center for American History, Uni-

versity of Texas at Austin.15Malvina Harlan, Some Memories of a Long Life,1854–1911 (New York: Modern Library, 2002), 112–13.

Malvina says her husband worked “several months” on

the opinion, but it was argued in April and decided in

May. She also remarks that he was the “youngest man on

the Bench,” when David J. Brewer, Henry B. Brown, and

Edward Douglass White were younger. Thanks to Ross E.

Davies for pointing out these inaccuracies.16Id., 113–14.17Memoir of Henry Billings Brown, Late Justice of theSupreme Court of the United States, ed. Charles A. Kent

(New York: Deerfield & Co., 1915), 96.18Milton Handler and Michael Ruby, “Justice Cardozo:

One Ninth of the Supreme Court,” Yearbook of the

Supreme Court Historical Society, 1988, 54.19Warner W. Gardner, “Harlan Fiske Stone: The View

From Below,” Supreme Court Historical Society Quarterly

22, no. 2 (2001), 11.20Dean Acheson, Morning and Noon: A Memoir(Boston: Houghton Mifflin, 1965), 49–50.21Letter from Samuel Chase to William Sprague, July 25,

1866, Chase Collection, Historical Society of Pennsylva-

nia, quoted in Alice Hunt Sokoloff, Kate Chase for theDefense (New York: Dodd, Mead & Co., 1971), 191.22Dennis J. Hutchinson and David J. Garrow, eds., TheForgotten Memoir of John Knox: A Year in the Life of aSupreme Court Clerk in FDR’s Washington (Chicago:

University of Chicago Press, 2002), 105.23Id.24Elizabeth Hughes Gossett, “Charles Evans Hughes: My

Father the Chief Justice,” Yearbook of the Supreme Court

Historical Society 1976, 11.

25Dorothy Goldberg, Private View of a Public Life (New

York: Charterhouse, 1975), 140, 143.26Lewis F. Powell, Jr., “Impressions of a New Justice,”

Report of the Virginia Bar Association, 1972, 219.27Goldberg, Private View of a Public Life, 144. The

social role of Supreme Court Justices’ wives was

evidently still important enough in 1970 for Richard

Nixon to query Harry Blackmun about his wife’s

social adroitness when he was interviewing him for

the nomination. In an oral history interview, Blackmun

recalls this cryptic interchange with the President: “What

kind of a woman is Mrs. Blackmun?” “What do you

mean?” “She will be wooed by the Georgetown crowd,

can she withstand that kind of wooing?” “I said that

she could.” The Justice Harry A. Blackmun Oral His-

tory Project, quoted by Nina Totenberg, March, 8, 2004, at

www.npr.org/templates/story/story.php?storyId=1751391.28Elizabeth Black, diary entry, September 9, 1957,

reprinted in Black and Black, Mr. Justice and Mrs.Black, 85.29Elizabeth Black, diary entry August 10, 1965, reprinted

in id., 103–4.30Unidentified law clerk, quoted in Dennis J. Hutchin-

son, The Man Who Once Was Whizzer White: A Por-trait of Byron R. White (New York: Free Press, 1998),

438–39.31Goldberg, Private View of a Public Life, 154.32Id.33Gardiner Harris, “M.D. Ginsburg, 78, Dies; Lawyer and

Tax Expert,” New York Times, June 28, 2010.34Id.35Ruth Bader Ginsburg, “The Lighter Side of Life at the

United States Supreme Court,” speech, New England Law

School, March 13, 2009, available at Supreme Court of the

United States, Speeches, http://www.supremecourt.gov/

publicinfo/speeches/viewspeeches.aspx?Filename=sp_

03–13-09.html (last visited Dec. 4, 2011).36Postscript on a letter from Oliver Ellsworth to Abigail

Ellsworth, March 20, 1797, reprinted in Marcus, Docu-mentary History, 3:101.37Gossett, “Charles Evans Hughes,” 8.38Susan Blackmun recounted this episode at a dinner hon-

oring her father. Quoted in Linda Greenhouse, BecomingJustice Blackmun: Harry Blackmun’s Supreme CourtJourney (New York: Times Books, 2005), 83.39Eyewitness Joseph P. Cotton told the story to his friend

Felix Frankfurter, who told it to his former student

Frederick Bernays Wiener, who recounts it in “Justice

Hughes’ Appointment—The Cotton Story Reexamined,”

Yearbook of the Supreme Court Historical Society, 1981,

79–80. See also James M. Buchanan, “A Note on the ‘Joe

Cotton Story,’” Yearbook of the Supreme Court Historical

Society, 1981, 92–93, which emphasizes the relevance of

the visit to Hughes by Justices Willis Van Devanter and

Pierce Butler prior to the President’s phone call.


40He did hold one minor, temporary, public office in his

state before predeceasing his father.41Transcript, Ramsay Clark Oral History Interview I,

10/30/68, Internet Copy, Lyndon Baines Johnson Library,

18, available at http://www.lbjlib.utexas.edu/johnson/

archives.hom/oralhistory.hom/ClarkR/clark-r1.pdf (last

visited Dec. 4, 2011).42Phone conversation between Ramsey Clark and Lyndon

B. Johnson, 1/25/67, 8:22 p.m., tape no. K67.01, PNO: 6,

Lyndon Baines Johnson Library, Austin, Texas.43Id.44Ramsey Clark, “Tom Clark Eulogies,” Yearbook of the

Supreme Court Historical Society, 1978, 5–6.45See Tony Mauro, “For Scalia’s Son, Turning Away In-

come May Help Father Stay on Wal-Mart Case,” National

Law Journal, March 16, 2011.46Earl Warren, Jr., “My Father the Chief Justice,” Year-

book of the Supreme Court Historical Society, 1982, 9.

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