The nation’s highest tribunal is normally wedded to precedent. For the sake of the law’s stability and to maintain its own legitimacy, the Supreme Court tries to avoid decisions that would muddy legal interpretations if they changed every few years. The current controversy over the partisan political activities of Justice Clarence Thomas’s wife, Virginia, raises an intriguing query about another kind of precedent: whether spouses of past justices have engaged in questionable personal or professional behavior.
The modern era of Supreme Court nomination fights began with President Woodrow Wilson’s appointment of the first Jewish justice, Louis Brandeis, in 1916. His progressive ideals, combined with his religious affiliation, made him an obvious target for conservatives and anti-Semites. Known as “the People’s Lawyer,” he shared his liberal ideology with Alice Goldmark Brandeis, his wife, and her sister, Josephine, an activist in the National Consumers League.
Mrs. Brandeis continued championing progressive causes even after her husband’s appointment to the court. At their Washington home, they frequently convened salons where fellow liberals discussed public policy. In the 1924 presidential race, Alice Brandeis supported the candidacy of Wisconsin Sen. Robert La Follette, who headed what was considered a radical Progressive Party ticket. La Follette offered Justice Brandeis the vice presidential nomination, but he declined.
Mrs. Brandeis joined other liberal stalwarts, including her husband’s ally and future Supreme Court justice, Harvard Law professor Felix Frankfurter, in defending two Italian immigrant anarchists, Nicola Sacco and Bartolomeo Venzetti, accused of murder and armed robbery in Massachusetts. She provided Sacco’s family lodging in the Brandeis’s home near Boston. During America’s first Red Scare, supporting leftists was indeed a bold act.
Like Louis Brandeis, Hugo Black inherited an activist sister-in-law in marrying his first wife, Josephine. Her sister, Virginia Durr, would become a co-founder, along with Hugo, of the Southern Conference for Human Welfare (SCHW), established in 1938, the year that President Franklin Roosevelt named Black to the Supreme Court. The new justice attended the SCHW’s first meeting in Birmingham, Ala. The interracial organization advocated for social, economic and political equality for African Americans as a path toward moving the South forward. It disbanded a decade later as the second Red Scare commenced and targeted civil rights organizations. Virginia and her husband Clifford, a Roosevelt New Dealer and fellow progressive activist, maintained close ties to Justice and Mrs. Black, especially to support Josephine, who suffered from periodic bouts of depression, which may have led to her premature death in 1951.
Five years later, Justice Black married his secretary, Elizabeth DeMeritte. Although he was a widower, his marriage was somewhat scandalous in 1957 Washington because he was 71 and his new bride, a divorcée, was 49. The second Mrs. Black recalled that her husband discussed with her cases pending before the court, judicial opinions he was composing, and disagreements he had with his colleagues. He also told her that one of Justice Robert Jackson’s clerks, William Rehnquist, drafted a memo supporting the court’s 1896 “separate but equal” precedent during the justices’ deliberation of Brown v. Board of Education in 1954, which overturned racial segregation in public schools.
Mrs. Black was reluctant to raise this issue when President Ronald Reagan nominated Rehnquist for promotion from associate justice to chief justice in 1986. Although Justice Black had died in 1971, she worried that revealing his intimate conversations with her might resurrect the gossip surrounding their May-December romance. Justice William Douglas apparently harbored no such worries; he married four times, and his last two wives were college students when the courtships began. Critics, including Sen. Bob Dole, questioned Douglas’s moral character and “bad judgment from a matrimonial standpoint.”
More typical of Supreme Court marriages in the mid-20th century were those that reflected the era’s traditional societal norms. Like wives of Congress members, the justices’ spouses tended to devote themselves to charitable activities, promoting the arts, homemaking, and supporting their husbands’ careers. Several times a year, justices’ wives gathered for lunch in a room designated by the court as the “Ladies’ Dining Room.” Justice Tom Clark’s daughter recalls that her father was so careful about the integrity of the judicial process that he didn’t discuss cases with her mother, and he famously retired from the court when their son Ramsey became attorney general in 1967, to avoid a conflict of interest.
Civil rights advocate Thurgood Marshall replaced Clark, becoming the first Black Supreme Court justice. His first wife, Vivian, also a civil rights activist, had died nine years earlier, just after Marshall’s landmark victory as the NAACP’s lead counsel in the Brown case. Shortly after, he proposed to Cecelia Suyat, an NAACP stenographer, who shared his goals for achieving racial equality.
Initially, Cecelia rejected Marshall’s marriage proposal, fearing that her Filipino-Hawaiian heritage would make her seem a “foreigner” among Blacks and whites. She relented to his entreaties and left her job to marry Marshall and raise their two sons. When he entered government service, first as a U.S. appellate judge and then as solicitor general, and finally as a Supreme Court justice, Mrs. Marshall was careful to limit her friendships with civil rights advocates to avoid conflict of interest charges.
The 1960s ushered in a new era for Supreme Court spouses when Abe Fortas took his seat on the tribunal. His wife, Carolyn Agger, a former New Dealer and skilled lawyer in her own right, argued against his accepting the nomination, which meant a severe reduction in their household income as senior partners in the prestigious Washington firm of Arnold, Fortas and Porter.
Justice Black assured Fortas he would not have to recuse himself in cases because of Agger’s tax law practice, and, with President Lyndon Johnson twisting his arm, Fortas reluctantly accepted the nomination. Ironically, Justice Fortas’s ongoing advisory role with LBJ and receipt of money from a discredited financier forced him off the court in 1969.
The first two women nominees, Sandra Day O’Connor in 1981 and Ruth Bader Ginsburg in 1993, turned the gender model on its head. Their lawyer-husbands both supported — indeed advocated for — their respective appointments and continued to practice law in Washington after their wives made history by taking their seats at the pinnacle of the federal judiciary. Ginsburg was criticized for not recusing herself in cases involving her husband Marty’s law firm. The arrival of two male spouses at the tradition-bound court prompted the justices to rename the Ladies’ Dining Room for Natalie Cornell Rehnquist, the chief justice’s late wife.
Sometimes called the “Marble Temple,” the Supreme Court is anything but a monastery or convent, isolated from society’s mores. Its justices’ marriages and spouses have represented the political and social contours of their eras. Left, right and center positions on the ideological spectrum all have been represented on the bench and in the homes of Supreme Court justices.
Yet, no matter how these jurists interpret the Constitution, we should expect that they and their families support our founding document, the republic it created, and the processes that govern us. As the Supreme Court’s recent and unprecedented slide in public approval to 40 percent indicates, the tribunal would be well served to heed the observation of former Justice David Souter (a lifelong bachelor, by the way): “The power of the court is the power of trust earned — the trust of the American people.”
Barbara A. Perry is Presidential Studies director and Gerald L. Baliles Professor at the University of Virginia’s Miller Center. She served as a fellow at the U.S. Supreme Court in 1994-95. Follow her on Twitter @BarbaraPerryUVA.