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Justices on the Move

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Posted by Emily Gadek on Wed Nov 06 2013

Being a Supreme Court justice used to be a part-time job. When they weren’t hearing cases in the capital, the justices worked as circuit court judges traveling as much as 10,000 miles a year.

It was partly a matter of efficiency, said Professor Jim O’Hara, from the Supreme Court Historical Society.

“In those days,” he said, “the lower courts were just getting organized and there weren’t very many appeals. It was almost like Congress decided, we have to give Supreme Court Justices something to do.”

He says this system meant the justices could act as emissaries of the new federal government, teaching the country how the federal system worked, and it helped the justices learn state law.

Things were set up differently back then. In the early days of the United States, federal courtrooms, came to you, and judges, government attorneys and private lawyers all traveled together from town to town to hold trials.

Harper’s Weekly in the 1800s showed the misery of circuit-riding

Harper’s Weekly in the 1800s showed the misery of circuit-riding

Starting in 1790, each Supreme Court justice was assigned a circuit of several states, and spent most of the year traveling around to hear cases there. He spent the rest of the year back in the capital, hearing appeals that made it to the Supreme Court. For Congress, it was a win-win situation, because—among other reasons–it saved money, since the justices essentially did two jobs, but only got paid for one. But for the justices, the practice was sheer misery. There are a lot of stories about how difficult it was to travel.

Chief Justice John Marshall, appointed in 1801 by John Adams, was once traveling by carriage on his circuit when the wheels broke. The carriage turned over, fracturing Marshall’s collar bone.

Justice Samuel Chase –popularly known as ‘Old Bacon Face’ and the only justice ever to be impeached,–had to cross the Susquehanna river to get from Baltimore to Wilmington, Delaware. One time, traveling in the winter, he slipped on the raft that was to take him across.. He fell into the river, and had to be fished out.

Justice Stephen Johnson Field, who was appointed to the Supreme Court by Abraham Lincoln in 1863 and known for a coat he had designed with extra-large pockets, to carry two pistols in—was expected to go from Washington, D.C. to California to hear cases He’d catch a boat, usually in Baltimore, sail down to Panama, cross Panama, initially by burro, then sail up the California Coast to San Francisco.

But travel wasn’t the only inconvenience. Justices could be away from home for more than six months at a time. They earned a lot less than they would have as lawyers in private practice, and they were expected to pay out of pocket for their travel.

Not surprisingly, Congress and the Supreme Court spent much of the 19th century arguing about circuit-riding. Justices frequently petitioned Congress to end the practice, or at the very least, to pay their travel expenses. But Congress refused. In 1848, an Ohio senator told the Senate:

They had better not separate the judges for an hour from circuit duties, and direct intercourse with the people of the State. That is the only feature in the system which connects them with the nation; and if that be struck out, the striking out of the court will follow as naturally as the snuffing of a candle issues in darkness.

It’s a very different scenario from today’s justices, who barely seem to exist outside the Supreme Court building.

Florida lawyer Bruce Rogow, who has argued before the Supreme Court 11 times over the last 40 years or so, said he’s only occasionally met justices socially. Once in awhile, he used to see Justice Blackmun eating breakfast in the Supreme Court cafeteria before a case.

But he thinks justices should be distant, so you don’t see their human flaws.

“I like them sitting up in their black robes and so you have this idealized picture of them,” he said.

“It probably is not so accurate, but like any kind of fantasy, better to keep it a fantasy.”

In the days of circuit-riding, justices were anything but distant. Justices and lawyers on the circuit traveled and ate together; they shared rooms, sometimes even beds. Not surprisingly, they also formed close friendships.

Abraham Lincoln, for example, met one of his closest friends, a judge named David Davis as a circuit-riding lawyer in Illinois. When Lincoln became President, he nominated Davis to the Supreme Court, where he served for 14 years.

But that intimacy could also created problems, or it would have by today’s standards, anyway. For example, a justice wasn’t expected to recuse himself from Supreme Court cases that came up through his circuit, even if he heard an earlier appeal on the case or when a lawyer he knew from the road argued before the court.

Today, there are rules about when a justice should exclude him or herself from a case, because of a conflict of interest. And when they don’t, sometimes people complain.

In 2004, then-Vice President Dick Cheney flew Justice Scalia to Louisiana on Air Force 2, for a duck-hunting trip. There was a public outcry when Scalia later decided not to recuse himself from a case where Cheney was a defendant, and Scalia ended up writing a 21-page memo defending his decision.

Tony Mauro, a reporter who has been covering the Supreme Court since the late 1970s, says today’s justices sometimes take that separation too far, sealing themselves off in an antiquated world without email or newspapers. Even in their own field of law, justices sometimes feel removed from the real world.

Chief Justice John Marshall, left, is shown chatting in a tavern while out riding on the circuit

Chief Justice John Marshall, left, is shown chatting in a tavern while out riding on the circuit

“We also often hear from practicing lawyers, that the justices don’t really have much understanding of the legal process at the grassroots level or at the local courthouse,” Mauro said. “They don’t understand what it’s like to be a police officer who has to figure out how to conduct a proper search and what not to do. So they’re not very practically oriented people.”

And while we might not want them on the campaign trail, or Facebook, Mauro thinks being so far from the public eye hurts their credibility. “They represent at least one branch of government and right now they’re pretty invisible,” he said. “As a result, I think the public knows very little about the judiciary. I think it’s an important part of democracy, it’s a form of accountability to make them more visible, to make them accessible to the public.”

Congress finally ended the practice of circuit-riding judges in the early 1900s when the Supreme Court found itself with a backlog of several years’ worth of cases, and Congress decided being a Supreme Court justice was a full-time job.

But you can still see vestiges of circuit-riding in today’s legal system. The second-highest appeals court—the one right below the Supreme Court–is still divided into regional circuits, and just like in the early days of the country, each Supreme Court justice is assigned a circuit. Some retired justices, like Sandra Day O’Connor and David Souter, still occasionally hear cases in their old assigned districts.

Fortunately for them, they don’t have to ride a donkey to get there, and the taxpayers pick up the tab.

Also read:

Letters from John Marshall to his wife

SCOTUS historical society