On this day in 1972, Lewis Powell and William Rehnquist were sworn in as the 99th and 100th members of the Supreme Court.
They filled vacancies that had been created several months earlier when Justices Hugo Black and John Harlan retired. Both had fading health. Justice Black retired on September 17, 1971, and died just eight days later. Justice Harlan retired September 23, 1971; he died December 29, 1971.
President Richard Nixon nominated both Rehnquist and Powell on October 22, 1971. Nixon, who in his 1968 presidential campaign had been sharply critical of the Warren Court, had already replaced Warren with Warren Burger as Chief Justice. After two failed nominations, he installed Harry Blackmun as an Associate Justice, taking the seat left vacant when Abe Fortas resigned from the Court in 1969.
At the time of their appointments, Powell was a past president of the American Bar Association and one of the country’s leading corporate lawyers; Rehnquist was serving as an Assistant Attorney General in the Office of Legal Counsel. The Senate easily confirmed Powell on December 6, 1971, by a vote of 89 to 1. Rehnquist faced more opposition, most of it focused on his record as an outspoken and dedicated conservative. His paper trail included memoranda he had written as a law clerk to Justice Robert Jackson in the early 1950s in which he expressed skepticism toward civil rights claims. He was eventually confirmed on December 10 by a vote of 68 to 26.
Since they were both confirmed on the same day, who assumed the role of the Court’s junior justice? When two Justices join the Court on the same day, seniority is determined by age. Chief Justice Burger first administered the judicial oath to Powell, who was 64; Rehnquist, at 47, went second, and thereby became the most junior justice on the Court.
Justice Powell also started a new Supreme Court tradition on the day of his confirmation. Prior to taking his oath, he sat in the chair that Chief Justice John Marshall had used, located in front of the bench, below the Clerk of the Court’s desk. All succeeding Court appointees have followed this practice.
This post was drafted by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, and edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and ISCOTUS Co-Director Professor Christopher Schmidt.