Tea at the White House

Traditions smooth our turbulent and chaotic lives. Read the following about a tradition that no longer exists, but should be reinstated in my not so humble opinion:

For the Jackson List:

On Monday, October 2, 1939, the Supreme Court of the United States began its new term.

The Justices—Chief Justice Charles Evans Hughes and Associate Justices James C. McReynolds, Harlan Fiske Stone, Owen J. Roberts, Hugo L. Black, Stanley Reed, Felix Frankfurter and William O. Douglas—took the bench at noon. Justice Pierce Butler, hospitalized with a bladder ailment, was absent.

The Court’s session lasted only twelve minutes. It admitted a number of attorneys to practice before it. The Solicitor General of the United States, Robert H. Jackson, moved the admissions of two of these attorneys, new Assistant Attorneys General Samuel O. Clark, Jr. (heading the Tax Division) and Francis M. Shea (heading the Claims Division). The second was personally meaningful to both Jackson and Shea—they were good friends from western New York, and Jackson had recruited Shea to the Department of Justice from his previous position as dean of The University of Buffalo School of Law.

During its session, the Court received a report on one substantive matter. Charles Warren, the Court-appointed special master handling a Texas-New Mexico-Colorado boundary dispute, told the Justices that he had nothing left to do in the matter because the states had agreed to the settlement that he recommended two years earlier. Following this report, the Court adjourned until the following Monday.

That brief session did not mark the end of the Supreme Court’s day. Late that afternoon, seven justices—Chief Justice Hughes and Justices Stone, Roberts, Black, Reed, Frankfurter and Douglas—went as a group to the White House. They were accompanied by Attorney General Frank Murphy and Solicitor General Jackson. The occasion was a visit, and tea, with President Franklin D. Roosevelt. The ailing Justice Butler and the Roosevelt-hating Justice McReynolds did not attend. For all who did, the visit was relaxed and enjoyable.

This 1939 White House visit marked the first time in four years that the Supreme Court made its then-traditional call to pay respects to the president at the start of the Court term. In 1936, 1937 and 1938, FDR had been absent from Washington on the first Monday in October. 1937 also had been the year of his Court-packing proposal, starting that February and continuing into the summer. Perhaps the resulting bruises, on both president and Court, were still there in Fall 1937, and even a year later.

The tradition of the President inviting the Justices to visit him in this fashion lapsed many years ago. On this first Monday, when the Supreme Court begins its new term and all wish it well, that lapse is something to remember and, in my view, to regret.

* * *

Professor John Q. Barrett

Professor of Law, St. John’s University, New York, NY

Elizabeth S. Lenna Fellow, Robert H. Jackson Center, Jamestown, NY

RGK

16 responses

  1. At the close of each state Court of Appeals argument here in my state, the judges come down off the bench, and shake hands with the lawyers and exchange some words with them before returning to their chambers. One of the judges even came back into the audience and shook my hand once, because they remembered me from a previous moot court argument. I was very touched by this gesture.

    No such tradition exists at the state Supreme Court level, and the difference in atmosphere is notable. Although the lawyers are generally treated very respectfully and kindly, it almost feels like there is a barrier between us and them.

    These are just the thoughts of a young law student, of course, but I think that traditions of collegiality have a place in law.

    -Southern Law Student

  2. Given the partisanship that now marks Supreme Court jurisprudence, that would be one strained social occasion. Which might be an argument in favor or reviving the practice.

  3. Are you in one of the states within the Fourth Circuit? The judges of U.S. Court of Appeals for the Fourth Circuit have a long-standing tradition of coming down from the bench after each oral argument to shake the hands of counsel.

  4. Mark,
    Yes, I am. I am in South Carolina. That would certainly explain where they got it from, since the S.C. Court of Appeals is a more recent creation than the Fourth Circuit.

  5. My favorite story about that lovely 4th Circuit tradition: A colleague had concluded his oral argument in a CJA felony matter that was, ahem, a bit of an uphill battle. As one of the judges shook his hand, the judge smiled broadly and drawled, “Nice try!”

  6. Judge:
    It was a more courtly (no pun intended) time when the culture supported such conduct. IMHO we presently need a change in the culture which would encourage congeniality even in the face of our differences. How do we do that? I’m not sure but I suggest we start small…which is why tea at the White House or a handshake after oral argument is probably worth its weight in gold.
    Robert

  7. I was struck by this line:
    “…the Roosevelt-hating Justice McReynolds did not attend.”

    Were Obama to reinstate the practice of tea and conversation, I wonder how many of the Supremes would decline to attend for like reasons?

  8. Justice McReynolds may have been the most disagreeable person ever to serve on the Supreme Court. He despised Jews; there is no group photograph for the 1924 Supreme Court term because under the customary practice of seating the justices with regard to seniority, he would have been seated next to Justice Brandeis. He consistently was rude not only to Justice Brandeis, but anyone else who was not white, male, Christian and conservative.

  9. mswales,

    Great question. Here is my uninformed answer: None. All would attend. Chief Justice Roberts would see to it.

    All the best.

    RGK

  10. My understanding is that McReynolds would not speak to Brandeis, and that if Brandeis was speaking in conference, McReynolds would leave the room–but that he would stand on the other side of a half-open door, so that he could hear. I suppose he was, in Chesterton’s phrase, “A very unclubbable man.”

  11. The Chief is working on a complex legacy that includes gay marriage, Obamacare and Citizens United. I’d love to be a fly on the wall when he tells Scalia he has to go up to the White House for tea and STFU.

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