Justice Sherman Minton: A Bridge Between Eras

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In recent posts I discussed John McKinley, the only other U.S. Supreme Court justice besides Louis D. Brandeis to be buried in Louisville, grouping the two disparate men under the random accident of the geographic proximity of their last resting places.  If state lines are ignored, a third justice is also buried nearby, the gregarious New Albanian Sherman Minton, whose grave at Holy Trinity Catholic Cemetery lies just across the the Ohio River bridge that bears his name. (Credit to Jim Chen, who pointed out the Oyez created Google Maps page of SCOTUS death-places).  Minton is a balancing addition to the Kentuckiana trilogy, a solid hardworking and sensible jurist whose career avoided the dizzying heights of Brandeisian greatness and the spectacular lows of McKinleyesque inconsequentiality, landing squarely in the middle of most rankings.

Minton, a senatorial pal of Harry S. Truman who appointed him to the court in 1949, was the last member of the U.S. Congress to sit on the court. This is no obscure fact; since he left in 1956, only Sandra Day O’Connor, an Arizona state legislator, joined the Court with any experience in drafting laws, counting votes and trading favors to pass a law.  The woeful lack of practical experience has led many of the current court to expect laws to be drafted without error or ambiguity, and, when they don’t find this perfection, they are content to ignore obvious legislative intent.  Minton, a man with a high regard for the product of the popular branches, sought to find and vindicate the purpose of the legislature embodied in its laws.

Sherman Minton was the last of another breed of justice, at least according to a new paper on SSRN by Justin Crowe and Christopher Karpowitz, “Where Have You Gone, Sherman Minton? The Decline of the Short-Term Supreme Court Justice” (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=948813).  Crowe and Karpowitz discuss the historical role of “short-term” justices, men who served productively on the court but did not stay for decades.  They show that this was a common phenomenon in the 19th and early 20th centuries, but has been rare in the last half-century. 

When Sherm Minton left the court in 1956, he likely had little idea that an era was ending.  The age of poker-playing lawyer-legislators was over; the court would increasing become the province of law professors, Justice Department staff attorneys and corporate lawyers; all typically rotated through a federal lower court position before being seated on the high court.  Where they would sit … and sit … and sit …

UPDATE:

Federal judge and former congressman Abner J. Mikva was decrying this tendency in the lower federal bench back in the early 1980s: "Judicial Selection: Casting a Wider Net,"  62 Annals Am. Acad. Pol. & Soc. Sci. 125 (1982).