Team SCOTUS! 9 Action Hero Supreme Court Justices

By Steve Klepper (Twitter: @MDAppeal)

Maryland Court of Appeals Judge Glenn T. Harrell, Jr. likes his movie references. The first time I had dinner with him, he regaled the table with a lively discussion of The Expendables 2 – a cartoonish testosterone-fest featuring a collection of past-their-prime action stars. (Disclosure: I never saw the first one and made it through only 15 minutes of the second.) The Expendables 3 arrives this summer, and, at least judging by the posters, it looks simply awful. In honor of Expendables 3, and of Judge Harrell completing his term as Chair of the MSBA Section of Litigation, I proudly present my list of nine action-hero Supreme Court justices.

The arbitrary and capricious rules are as follows:

• There can only be one chief.
• Because all nine current justices are compis mentis, and therefore not past their primes, only retired or deceased justices are eligible.
• Greatness as a justice is relevant but not the focus.
• The inquiry turns on how the justice’s biography fits with a cartoonish action-hero narrative.
• Because everything at the Supreme Court goes by seniority, the justices are listed in reverse order of appointment, with the Chief automatically No. 1.

#9. Sandra Day O’Connor
Action Hero Avatar: Katniss Everdeen, The Hunger Games

Okay, maybe it’s obvious to pick America’s current top action heroine as the avatar for the only woman eligible for this list of former justices. But, like the “District 12” born-and-raised star of the popular teenage-death-match franchise, Sandra Day O’Connor also grew up on the geographic fringes, on a ranch in El Paso, Texas. There she had a pet bobcat. No, seriously. A bobcat. O’Connor drove by age 7 and was proficient with a rifle by age 8. It’s not at all hard to imagine her wielding a bow and arrow or rescuing perpetual dude in distress Peeta Mellark.

#8. Thurgood Marshall
Action Hero Avatar: Roger Murtaugh, Lethal Weapon

Remember Lethal Weapon 2, in which Mel Gibson and Danny Glover fought evil apartheid-era South Africans who had diplomatic immunity? Remember how Danny Glover was cranky the whole time, and then he shot the bad guy right through his ID and said that immunity had “just been revoked”? Yeah, that basically sums up Thurgood Marshall’s years with the NAACP Legal Defense Fund.

Marshall, like Glover’s Murtaugh, was known for cranky remarks, particularly about his age. Justice Lewis Powell would greet him by saying, “Good morning, Thurgood,” and Marshall would respond “What’s so good about it?” An aging Marshall told his clerks, “If I die, prop me up and keep voting!” Declining to participate in a 1987 reenactment of the Constitutional Convention, Marshall said he’d need to wear knickers and serve tea.

Also, Danny Glover just played Thurgood Marshall in an HBO original movie. This one’s a gimme.

#7. Byron “Whizzer” White
Action Hero Avatar: Johnny Utah, Point Break

Like Johnny Utah, Byron White was an All-American football player who went to law school. Both ran from their past. White, wanting to be taken seriously as a lawyer and judge, loathed the “Whizzer” nickname. Johnny Utah needed to hide his status as an F-B-I AGENT [*NSFW video*] while he infiltrated a gang of surfing bank robbers. But White’s resume put Johnny Utah’s to shame. He was a Rhodes Scholar who led the NFL in rushing. He gave up football to enlist with the Navy in World War II. He earned two Bronze Stars. As a senior citizen, he dominated pickup basketball games with the SCOTUS clerks. There’s no way to leave White off this list.

#6. Robert H. Jackson
Action Hero Avatar: Indiana Jones, Raiders of the Lost Ark

Indiana Jones hated Nazis. Robert Jackson prosecuted Nazis. In 1945, President Truman appointed Jackson chief prosecutor in the Nuremburg trials of Nazi war criminals. Today’s justices won’t allow video of their proceedings. Jackson’s Nazi prosecutions are on YouTube.

Jackson, like Indy, had no problem standing up to authority. In Korematsu v. United States (1944), everyone expected Franklin Roosevelt’s former solicitor general to uphold the World War II relocation and detention of Japanese-Americans. A majority, including famed civil libertarians such as Harlan Stone, Hugo Black, and William Douglas, voted to uphold the program as a wartime measure. Jackson, in dissent, called the decision a “loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”

Indiana Jones also knew a thing or two about a loaded weapon.

#5. William O. Douglas
Action Hero Avatar: Jake Sully, Avatar

Just Google “William Douglas hiking” and return here when you’ve read through the on-point hits. I’ll wait here.

Are you back? I managed to watch the entire movie Avatar while you were gone.

If any justice would choose to have his consciousness transferred to a 10-foot-tall alien body to fight the industrial destruction of the environment, William Douglas would definitely be the one. In fact, we can’t rule out that this didn’t happen.

Douglas, concurring in Sierra Club v. Morton (1972), expressed his belief that “valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life” should have standing to sue in environmental cases. “The voice of the inanimate object,” Douglas wrote, “should not be stilled.” So there you have him: our first Na’vi justice.

#4. Oliver Wendell Holmes, Jr.
Action Hero Avatar: Bill Munny, Unforgiven

This group needs an antihero, and Oliver Wendell Holmes fits the bill. Holmes infamously declared that “[t]hree generations of imbeciles are enough” in affirming the forced sterilization of an allegedly feeble-minded (but really just traumatized from sexual abuse) young woman in Buck v. Bell (1927). That decision very nearly disqualifies him, but it’s important to remember that the decision was unanimous – meaning that, yes, both Louis Brandeis and Harlan Stone signed onto that opinion.

Holmes is on the “hero” side of the ledger by virtue of his legendary First Amendment opinions, and for killing legal formalism the way that Clint Eastwood killed outlaws in Unforgiven. But neither Holmes nor Bill Munny thought much of humanity. Bill Munny confesses that “I’ve killed women and children. I’ve killed just about everything that walks or crawled at one time or another.” Holmes, whose service in the Civil War carved in him a misanthropic streak a mile wide, disdained the common man. But he thought that the people had every right to misgovern themselves. “[W]hen the people … want to do something that I can’t find anything in the Constitution expressly forbidding them to do, I say, whether I like it or not, ‘Goddammit, let ’em do it.’ ”

Like Holmes, who used a standing desk to promote concise writing, Clint Eastwood has a beef with chairs.

#3. John Marshall Harlan
Action Hero Avatar: John Connor, Terminator 2

Arnold Schwarzenegger’s T-800 told John Connor, “Come with me if you want to live.” Reading John Marshall Harlan’s dissents, it’s like a time traveler told him, “Listen to me if you want to appear on lists of great justices.” Harlan would be remembered if he had done nothing more than dissent when the rest of the Court gutted the Civil Rights Act of 1875. And, sure, Harlan was ahead of his time in announcing a theory of due process that bound the States to the Bill of Rights.

But what turns Harlan into a seer is his dissent from the ruling affirming “separate but equal” train accommodations in Plessy v. Ferguson (1896): “In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case.”

There are a few decisions that are off-limits in a constitutional debate. Just like how civilized political debate ends when one side compares another’s position to Hitler or Stalin – as soon as you compare your opponent’s theory to Dred Scott (slavery), Korematsu (Japanese internment), or Plessy v. Ferguson, you’re just not fighting fair.

Harlan may have been the only lawyer in America who actually foresaw that future when the Supreme Court decided Plessy in 1896. As Peter Irons notes in A People’s History of the Supreme Court, the Court issued 53 opinions the day it decided Plessy. “Three of these—dealing with the laws of contract, inheritance, and copyright—were reported on the front page of the New York Times. The editors relegated the Plessy decision to a third-page column on railroad news.”

Like Terminator 2, Harlan had a sequel.

#2. Lucius Quintus Cincinnatus Lamar II
Action Hero Avatar: Jonah Hex, Jonah Hex

It’s a little anticlimactic to turn to LQC Lamar after John Marshall Harlan. But, again, we’re going chronologically. Lamar typically shows up only on lists of justices with the greatest names or greatest facial hair. Fittingly, the most obscure justice on this list is paired with the most obscure hero on this list, Jonah Hex.

Here’s where I show my proclivities a bit. I’ve loved bad movies since the Joel Hodgson days of Mystery Science Theater 3000, and boy is Jonah Hex an enjoyably bad movie. As Keith Phipps wrote at the AV Club:

[T]he 81 minutes (including credits) of Jonah Hex footage that made it to the screen look like something assembled under a tight deadline, and possibly under the influence. One flashback makes three appearances. A fight scene with no dreamlike elements, apart from a sky tinted red in post-production, repeatedly appears as a dream sequence .… Jonah Hex is what happens when someone promises to deliver a releasable movie by a certain date, and then doesn’t.

Where was I? Oh, yeah, LGC Lamar. He was a Confederate officer who received a pardon, was elected to the House of Representatives, and became the first Southerner appointed to the Supreme Court after the Civil War. He appeared in JFK’s Profiles in Courage for numerous post-bellum acts of conciliation.

Jonah Hex? He was a former Confederate soldier, and Wikipedia has the following accurate summary of the end of the movie [spoiler alert! Just kidding: This movie is spoiled pretty much as soon as it begins.]: “President Grant rewards Jonah with a large sum of money, a full pardon, and offers him a job as Sheriff of the United States. Jonah declines, but assures the president that if they need him, they’ll be able to find him.”

Sheriff of the United States! Someone actually wrote that down and received a screenwriter credit.

#1. Salmon P. Chase
Action Hero Avatar: Professor X, X-Men

The X-Men’s mentor, Professor Charles Xavier, is a Martin Luther King, Jr.-type civil rights leader advocating for human-mutant harmony. Physically, the wheelchair-bound Xavier is not imposing. But he’s powerful. Most plots of X-Men movies involve a forced plot twist that takes him out of the action so the other heroes having something to do.

Now let’s take a look at Chief Justice Salmon P. Chase. An underappreciated historical figure, Chase was an abolitionist before it was cool. We’d all hope that, if we were lawyers back then, we’d have Chase’s courage. He defended runaway slaves in the 1840s. There was no money or glory in such work. He just did what was right.

Chase was one of Abraham Lincoln’s chief rivals, and he occasionally lapsed into comic-book-like schemes. As Lincoln’s Secretary of the Treasury, Chase printed his own portrait on the notes paid to Union soldiers, turning currency into campaign fliers for the 1864 election. Once Lincoln appointed Chase Chief Justice to get him out of the way – like a cheap plot device that gets Professor X out of the way – Chase brought his abolitionist view of civil rights to the Court.

Unfortunately, Chase’s physical ills cut his service short and prevented him from achieving greatness. He’d be remembered more if he was healthy enough to pen an opinion in Bradwell v. Illinois (1873). Eight Justices agreed in Bradwell that a state could constitutionally bar women from practicing law. Five justices thought the claim to be outside the scope of the Fourteenth Amendment. Three concurring justices, who thought that a key feature of the Fourteenth Amendment was to protect a man’s right to his labor, wrote the most sexist opinion in Supreme Court history. Chase dissented without an opinion, and he died shortly after.

That’s right – in 1873, the Chief Justice of the United States thought that the “equal protection of the laws” meant what it said: Women had an equal right to admission to the bar. He was a mere 98 years ahead of the curve. And for that, my friends, Chase is the Chief Justice who tops this list of heroes.