In a recent article in the Journal of Supreme Court History, Franz Jantzen seeks to debunk an often repeated story — Justice James McReynolds’s refusal to participate in the Supreme Court’s annual photograph in 1924 because he would not sit next to Justice Louis Brandeis, who was Jewish, as seniority would dictate.
Jantzen begins with basic logistics of the myth, often assumed but actually incorrect, that demonstrate the impossibility of the story. The first is the simple fact that there is no annual photograph of Supreme Court Justices. Although there have been exceptions that Kantzen notes, he reports, “[f]rom the start the justices have, at first by happenstance and then by tradition, generally gathered together for this purpose only once between changes on the Bench.” The Justices did gather in 1923 for a photograph after the confirmation of Justice Edward Sanford and again in March 1925 after the arrival of Justice Harlan Stone, but 1924 did not require a new photograph.
The myth’s second error is the assumption that seniority would place McReynolds and Brandeis next to one another. While it is true that McReynolds immediately preceded Brandeis in seniority, the conventional photographic arrangement for Justices did not place the two men next to one other. The 1923 picture features the Justices in opposite rows, whereas in 1925 they sat on opposite ends of the first row. Other situations dictate different arrangements. A photograph of the Justices present at President Calvin Coolidge’s address to a Joint Session of Congress on February 22, 1927, features both men seated next to one another, as tradition would dictate.
Jantzen locates the story’s genesis with Alpheus Mason’s 1965 biography, William Howard Taft: Chief Justice. In this work, Mason cites from a letter written by McReynolds to Taft in March 1924, in which he wrote, “I have absolutely refused to go through the bore of picture-taking again until there is a change in the Court and maybe not then.” In his article, Jantzen reproduces the entire letter, as well as Taft’s response, which makes it clear that the correspondence did not contain references either to Brandeis or to anti-Semitism more generally. Rather, as Jantzen elaborates, McReynolds takes issue with sitting for a photograph with a certain photography studio after the Court had already taken photographs with two other studios in its current composition (already a breach of the norm).
Jantzen does reference multiple reports from McReynolds’s contemporaries suggesting that the man was indeed “rude, cantankerous, intolerant and prejudiced,” and does not mean to excuse such shortcomings. He does however suggest that posterity “take the measure of the man by using those things that he actually said and did… not by using myth or innuendo.” On that score, Jantzen reports McReynolds showed up for all ten scheduled photographic sittings during his tenure on the bench and never disrupted the traditional seating arrangement (which three times called for a Jewish Justice to stand directly behind him, although never at his side). Jantzen closes by referring to another story about McReynolds – his refusal to attend Justice Felix Frankfurter’s swearing-in with the purported comment, “My God, another Jew on the Court!” Maybe McReynolds said that, maybe not, but Jantzen has determined from the Supreme Court Journal for the October Term 1938 that he showed up. McReynolds may have had his unsavory attributes, but least on verifiable matters of history, Jantzen (and the Supreme Court Historical Society more generally) hope to set the record straight.