Rumor has it that BHO may break with tradition in making his first Supreme Court pick. He could nominate an African-American or Hispanic woman, or he could find someone who no pundit has on the short list. The justice he’s replacing, David Souter, came out of nowhere back in 1990—but he wasn’t unlikely enough to crack our list of the most surprising Supreme Court justices in history.
5. William Brennan (Served 1956-1990)
Surprise Factor: Catholic Democrats from New Jersey and Republican Presidents don’t typically see eye-to-eye.
Presidential Rationale: It was politics pure and simple—President Eisenhower was looking to curry favor with Northeastern voters in his bid for re-election that same year.
Legacy: Brennan proved to be one of the most influential liberal justices in the Court’s history; he voted with the majority in Roe v. Wade and wrote several opinions defending free speech. Eisenhower later admitted his selection had been a mistake, though Brennan’s liberal views arguably helped fuel conservative electoral turnout in the decades ahead.
4. Edward White (1894-1921)
Surprise Factor: A Louisiana native, White had served in the Confederate Army for two years before being captured by Union troops and held as a prisoner of war.
Presidential Rationale: President Grover Cleveland appointed White to the Court in as a compromise pick after his top two choices—both Northerners from New York—couldn’t get through Senate confirmations.
Legacy: White served on the Court for three decades and sided with the majority opinion in Plessy v. Ferguson that upheld segregation.
3. Tom C. Clark (1949-1967)
Surprise Factor: Can you imagine Jay Bybee—the author of the torture memo used by the Bush administration—on the Supreme Court? There’s precedent: during World War II, Clark served as the Justice Department’s civilian coordinator of the Japanese internment in California.
Presidential Rationale: Clark was a close friend of President Harry Truman.
Legacy: Truman called Clark’s appointment his “biggest mistake,” but not for the his role in the internment. As Truman put it, “It isn’t so much that he’s a bad man. It’s just that he’s such a dumb son of a bitch.” That’s probably the best that can be said of Bybee, too.
2. James McReynolds (1914-1941)
Surprise Factor: McReynolds, a testy Southerner, had a knack for irritating or offending all who came in contact with him. Presidential Rationale: McReynolds is the quintessential example of the annoying, disruptive co-worker getting “kicked upstairs” by management. President Woodrow Wilson appointed him as Attorney General in 1913, and, when McReynolds proved that he did not play well with others in the administration, Wilson appointed him to the Court the following year. Legacy: For almost three decades, McReynolds was a reliably intolerant voice on the Court. An open anti-Semite and misogynist, he often refused to speak or listen to Louis Brandeis, the first Jew appointed to the Court, and he would frequently abandon the bench when a woman lawyer came before the Court to present a case. But, we do haveMcReynolds’ intolerance to thank for the no smoking policy in the Supreme Court building.
1. Hugo Black (1937-1971)
Surprise Factor: Because the inaptly named Justice Black joined the Ku Klux Klan while an aspiring young politician in Alabama (a move he later justified by saying “I would have joined any group if it helped get me votes”).
Presidential Rationale: While in the Senate, Black had been a loyal supporter of FDR’s New Deal. When FDR nominated Black for the Court in 1937, Black’s Klan membership was merely a rumor, and the Senate, despite reservations, voted to confirm him. Black was hastily sworn in two days later before the KKK connection was confirmed by an ambitious reporter the following month.
Legacy: Black enjoyed one of the longest tenures on the court and later penned the Court’s majority opinion in Korematsu v. United States, validating FDR’s interment of Japanese Americans.