January 31, 1938 – Stanley Reed Begins His Term as Associate Justice on the Supreme Court

Stanley Forman Reed, born in 1884 in Kentucky, attended law school but did not graduate. Nevertheless, he was admitted to the bar in 1910 and established a legal practice, becoming a well-known corporate attorney. He also became active in politics.

Stanley F. Reed

Starting in 1929, Reed was recruited as general counsel for agencies created to deal with the Great Depression. In 1935, Reed was appointed by President Franklin D. Roosevelt as the 23rd Solicitor General.

As a Congressional Research Service report on the Office of Solicitor General ( “From Solicitor General to Supreme Court Nominee: Responsibilities, History, and the Nomination of Elena Kagan,” by Susan Navarro Smelcer and Kenneth R. Thomas, 2010) notes:

The role of the Solicitor General is unique in the American legal system. Not only does the Solicitor General represent the interests of the United States government before the Court, but the office is also charged with assisting the Supreme Court in the exercise of its judicial function. . . . The Court relies on the Solicitor General to perform a ‘gatekeeping’ function by recommending for review only the most meritorious of the government’s cases and providing the highest quality arguments for the Court’s consideration. Through these actions, the Solicitor General seeks to convince the Supreme Court that the government’s position is the correct one. Although scholars disagree on the exact nature of the office’s influence, most of the time, the Solicitor General is successful in this task.”

As Solicitor General, Reed was at first unsuccessful in defending the constitutionality of New Deal economic regulations before the Supreme Court. Beginning in 1937, however, the Court’s jurisprudence on the constitutionality of federal economic regulation shifted, and the Court ruled to uphold important New Deal legislation. Soon thereafter, two Justices retired in the space of seven months. To fill the first vacancy, President Roosevelt nominated Hugo Black, who had been a strong supporter of the New Deal legislation during Roosevelt’s tenure in office. To fill the second vacancy, President Roosevelt turned to Stanley Reed.

Reed was nominated on January 15, 1938, and while the debate over Hugo Black was heated, Reed encountered very little opposition. He was confirmed unanimously on January 25, 1938.

Justice Stanley Reed

Reed was considered a moderate and often provided the critical fifth vote in split rulings. He authored more than 300 opinions, occasionally incurring the wrath of both liberals and conservatives. As The Washington Post noted, when the court ruled as unconstitutional requirements by some school boards that students salute the flag or recite prayers, Justice Reed dissented. Similarly, he held, in the minority, that the loyalty oaths and the questions from Congress were proper. On the other hand, he wrote the opinion finding that segregated seating was outlawed on buses traveling across state lines. Most important however was his stand on Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). Chief Justice Earl Warren, realizing how controversial the case would be for the public, wanted to avoid any dissents in the case. But Reed was the lone hold-out. Reportedly, Warren dissuaded him with the warning — “Stan, you’re all by yourself in this now.”

One of Reed’s law clerks, John Fassett, disputes the story about Warren making that remark to Reed. Fassett, in the paper “Supreme Court Law Clerks’ Recollection of Brown v. Board of Education,” observed:

Justice Reed had been much in favor of fairness for the Negro race. . . .but he just did not think that the Supreme Court ought to be doing this at the early stages. . . . Basically, Justice Reed was . . . looking for more time. In the conference, he said that Plessy probably has gone by its day and is no longer good law, but we need more time for things to occur. He was a great believer in time taking care of things.”

Fassett further explained that Reed was opposed to what he considered to be “the ruthless use of judicial power.”

In any event, Reed did end up joining the majority before a decision was issued.

Reed retired from the Supreme Court on February 25, 1957, after nineteen years of service. After retirement, he served briefly as Chairman of President Dwight D. Eisenhower’s Civil Rights Commission. He died on April 2, 1980, at the age of ninety-five.