The Kennedy Court: Left and Right of Center

Abstract

had an impact through the Court long after they had ceased to exist as a viable electoral political entity; and President Franklin D. Roosevelt was thwarted for nearly a decade by his predecessors' Court appointees. On the other hand, a President's appointees do not always reflect his political interests once they are on the Court. President Eisenhower, generally thought to be moderate and cautious, by his earlier appointments had created an activist Court which was considered in its approach to issues. By the end of Eisenhower's second term in office, however, the Court had become closely divided as a result of his last two appointments to the high tribunal.' In the 1960-61 term of the Supreme Court nearly a quarter of the decisions handed down had been decided by a five-to-four vote. Only about 20 percent of the cases were reported out unanimously by the nine men in black. There appeared to be two fairly cohesive blocs with a contingent of swing voters left over. On the side were Justices Black, Douglas, and Brennan, and Chief Justice Warren; in the conservative wing were Justices Frankfurter, Harlan, and Stewart. Justices Clark and Whittaker were floaters, but were normally considered conservatively inclined. Thus, on a large number of cases the votes of seven of the justices could be anticipated with some reliability; the two others seemed to be oriented to the right of center on the more controversial decisions. The 1961-62 term of the Court evinced somewhat more agreement, but still it was regarded as a divided Court. Any change in its composition could be critically important for several categories of judicial appeals. President John F. Kennedy had taken office in 1961. Any vacancy on the Court would give him the opportunity, as well as the responsibility, to alter the direction the Court was taking. The assumption was that Kennedy would attempt to restore vitality to the liberal wing of the Court when given a chance. It was expected that any vacancy would come from among the more aged justices, Black, Douglas or Frankfurter, who were also at the extremes of the Court factions. But on March 29, 1962, Associate Justice Charles Whittaker announced his retirement effective April 11, 1962. Whittaker had been ill and had been missing from the bench for the previous two weeks, but his illness was not thought to be serious. Having been appointed by President Eisenhower in 1957, at 61 Whittaker was actually one of the younger members of the Court, and his early retirement had not been generally anticipated. It was thus from the conservative