TBA Law Blog

Posted by: Sam Elliott on Apr 27, 2011

Journal Issue Date: Mar 2011

Journal Name: March 2011 - Vol. 47, No. 3

Tennessee can claim six men who have sat on the nation’s highest court: John Catron, Howell Jackson, Horace Lurton, James McReynolds, Edward Terry Sanford and Abe Fortas. Only New York (17), Ohio (10), Massachusetts (8) and Virginia (8) can claim more, although Pennsylvania also has had six. While Tennessee is well-represented numerically, it is difficult for the Volunteer State to claim that its sons have truly distinguished themselves on the court. There are various reasons for this lack of distinction. Three served no more than four years as a justice. Howell Jackson was a former senator who sat only two years before his death in 1895, and was ill with tuberculosis for most of his short tenure. While Horace Lurton had a distinguished career before his appointment, he wrote no significant opinions while on the court. And many today still remember the controversy that surrounded Abe Fortas during his brief time on the supreme bench.

A native of Knoxville, Terry Sanford might be familiar to modern readers as the prosecutor in the contempt trial held in the Supreme Court against the Hamilton County sheriff who conspired in the death of Ed Johnson, the murdered accused rapist. Sanford ascended to the court from the United States District Court for the Eastern and Middle Districts of Tennessee. He served seven years and wrote the monumental opinion in Gitlow v. New York, which first suggested that the Fourteenth Amendment incorporated the Bill of Rights. Yet, he was often overshadowed by the massive bulk of his close friend, former president and Chief Justice William Howard Taft, to the point that when they died on the same day in 1930, Taft’s death stole the spotlight from Sanford’s. John Catron was appointed by Andrew Jackson during Old Hickory’s last day as president from a seat on the Tennessee Supreme Court, and served the longest tenure for a Tennessean, 28 years. A strong advocate of states’ rights, Catron wrote a concurrence to Chief Justice Roger Taney’s momentous Dred Scott v. Sanford decision, yet decided to keep his allegiance with the Union when Tennessee joined the Confederacy in 1861. This caused angry secessionists to suggest that he should leave Nashville in the fall of that year. When federal authority was reestablished in Nashville, Catron got some payback when he returned and presided over the indictments of prominent rebels.

The quirkiest of the Tennessee justices was James Clark McReynolds. McReynolds was appointed by President Woodrow Wilson in 1914 as a replacement for Lurton, and served with Sanford during the latter’s entire tenure on the court, the only time that there was more than one Tennessean on the Supreme Court. McReynolds was notorious for his outrageous anti-Semitism and misogyny, yet was also known for his early decisions expanding the concept of liberty and his kindness to children. As the attorney general of the United States, he was known as a liberal “trust buster,” yet he became one of the “Four Horsemen” who resisted Franklin D. Roosevelt’s New Deal legislation.

McReynolds was not only rude beyond comprehension to the Jewish members of the court — Louis Brandeis, Benjamin Cardozo and Felix Frankfurter — but he managed to antagonize a number of other members such as Chief Justice Taft and Harlan Fisk Stone. One member, Justice John H. Clarke, supposedly resigned because of McReynolds’ nastiness to him. McReynolds even was threatened with expulsion from his golf club because of “discourtesy”, and two other members of the court transferred to another club because he “got disagreeable beyond their endurance.” Conversely, McReynolds was “extremely charitable” to the pages that worked at the court, entertained at his home in a very agreeable manner, and openly wept at the funeral of Justice Oliver Wendell Holmes’s wife. Understandably not well liked, he died in 1946 without a friend or family member at his bedside, but left a sizable bequest to charity.

Hopefully, a member of the Tennessee Bar reading this column will one day ascend to the United States Supreme Court. Calling on the experience of Tennesseans past, we can wish him or her Fortas’s political influence, Catron’s longevity of service, the great opportunity to make law that Sanford had with Gitlow v. New York, Lurton’s distinguished career, better health than Jackson, and a much, much mellower life than that of James Clark McReynolds.