Supreme Court justices have voted against their appointing presidents
Would Donald Trump's nominees vote against him? History suggests yes, writes Barbara Perry
As judicial cases involving former President Donald Trump inevitably hurtle toward the U.S. Supreme Court, speculation abounds about whether his three appointees — Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — would vote against him in any of these disputes the court might agree to hear. Their predecessors’ votes countering appointing presidents’ interests offer current justices examples of how they might do so.
In the renowned 1803 case, Marbury v. Madison, Chief Justice John Marshall led the Supreme Court in blocking President John Adams’ last-minute nomination of William Marbury to be a justice of the peace for Washington, D.C. Although Marshall countered the very president who named him to the Court’s center chair, he simultaneously established the power of judicial review for the nation’s highest tribunal. Marshall earned the label “The Great Chief Justice” for his skillful acquisition of power over his 34-year tenure.
An associate justice, David Davis, nominated by President Abraham Lincoln, led a majority of the Supreme Court in voiding his appointing president’s Civil War military commissions. Davis argued in Ex parte Milligan (1866) that such tribunals had tried civilians unconstitutionally for conspiracy against the Union in Indiana, where civil courts were open during the rebellion. Three other Lincoln appointees, including the chief justice, Salmon P. Chase, joined in the judgment. Perhaps it’s easier for jurists to vote against the president who named them to the court if he is deceased.
President Theodore Roosevelt was still very much alive and in office when his Supreme Court nominee, Justice Oliver Wendell Holmes Jr., deviated from T.R.’s progressive desire to trust-bust. Upon hearing that Holmes had dissented from the Supreme Court’s 1904 Northern Securities Company decision to break up a railroad monopoly, Roosevelt sputtered, “Out of a banana I could carve a firmer backbone!”
T.R.’s cousin, Franklin Roosevelt, won in the high court’s decision upholding his executive order, which led to the internment of Japanese Americans in “relocation camps,” without individualized determination of guilt during World War II (Korematsu v. U.S.). F.D.R. had named eight of the nine justices by 1944, and six supported his exclusion order in the aftermath of Pearl Harbor. But two of Franklin Roosevelt’s appointees, former Attorneys General Frank Murphy and Robert Jackson, issued vigorous dissents against “this legalization of racism,” as Murphy put it. “Guilt is personal and not inheritable,” Jackson declared.
