The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
There was a time when multiple members of the Supreme Court had beards or mustaches. By my count, the Court hit peak-facial hair in 1868, when seven of the nine Justices had some form of facial hair. Only Chief Justice Chase and Justice Nathan Clifford bucked the trend.
A close runner-up is the Taft Court in 1923. I count five members with facial hair. Chief Justice Taft gave Justice Holmes a run for his mustache.
In the modern era, facial hair has largely faded. Looking through the group photos of the Warren Court, and on, I see mostly bare faces. Justices Marshall and Thomas had mustaches. And, for a period, Justice Rehnquist had forgettable sideburns. (As they say, if you remember the 70s you weren't there!)
According to my non-scientific research, only one Justice in the modern era had a beard on the bench--Justice Scalia circa 1996. This was big news in the day. The Associated Press published the story titled, "To beard or not to beard: That's [the] question. Scalia causes a stir when he shows up on first day of term with facial hair."
It wasn't doctor-assisted suicide or the future of affirmative action that caught the attention of Supreme Court watchers on the opening of the 1996-97 term Monday. It was the beard adorning Justice Antonin Scalia's normally clean-shaven face, and it left them wondering, will he shave it?
Promptly at 10 a.m. when the nine Justices walked through the backdrop curtains and took their seats, all eyes were upon Scalia. Over the summer recess, he grew a beard. He became the first justice since Charles Evans Hughes, the chief justice from 1930 to 1941, to sport a beard.
And a beaut it is. Not vaguely 1920s like Hughes' dropping mustache and parted beard and not a full Paul Bunyan, like some others in the old days.
This was a beard, black-and-white speckled, that came down from the sideburns, across the chin and up the other side.
To beard or not to beard, that was the question.
It's the hottest question in the building, Maryellen Toughill, Scalia's longtime secretary, said with a laugh.
Two bearded federal judges nominated to the Supreme Court never made it through the Senate confirmation process. Robert Bork's nomination was voted down by the Senate in 1987, and Douglas Ginsburg asked that his nomination be withdrawn that year following reports that he had smoked marijuana while a law professor. [JB: Technically, Ginsburg was never formally nominated, so there was nothing to withdraw.]
In 2015, the Green Bag published a letter from Ira Brad Matetsky of New York, that highlighted a remarkable fact--the Supreme Court journal recorded Scalia's beard!
The fact that someone, even a Supreme Court justice, varied his personal appearance for a year or less might ordinarily pass unnoticed. But in this instance, the most official of the Court's records decree that attention must be paid. For more than a century, the Supreme Court has maintained a Journal as its official record of the business of each term, including a prefatory table of contents listing significant events of the term. For many years, preparing these Journal entries was the responsibility of the late Deputy Clerk Francis Lorson, who "included what he call[ed] 'discretionary' items that people will want to remember in the future."13 And in the Journal for October Term 1996, it is memorialized for posterity: "Scalia, J. Wore beard during the Term."14 A listing of bearded justices that omits this fact is, I fear, subject to a facial challenge.
Yes, it is really in the OT 1996 Journal at page iii. Brennan died, Clinton was inaugurated, and Scalia had a beard--the important stuff!
Scalia lost the beard at the start of the October 1997 term.
A quarter century later, another Justice has joined the bearded club--at least during the Sumer recess. As Howard Bashman pointed out, Justice Alito has grown a beard. Alito spoke at the Notre Dame Religious Liberty Summit in Rome. I think the inchoate beard can best be described as a work-in-progress. But who am I to give follicular advice? (I am getting a new headshot next week.)
Here are a few different angles of Justice Alito's scraggly scruff.
Neither Alito nor Scalia (Scalito?) can hold a candle to Chief Justice Hughes.
For those interested, I transcribed Alito's remarks here.
Update: Howard Bashman pointed out that Justice Gorsuch grew a pandemic beard in 2020!
Justice Gorsuch debuts a pandemic beard on Constitution Day pic.twitter.com/v6U1i5p0a4
— Adam Liptak (@adamliptak) September 17, 2020
That fact did not make the Supreme Court journal, as no oral arguments were in person.
Also, in 2015, Chief Justice Roberts promised he would not grow a beard:
He also made two lighthearted promises. He will not run for president, he said, and he will not grow a beard.
His subject was Chief Justice Charles Evans Hughes, who rejoined the court in 1930 after a glittering career in public life. Hughes had been governor of New York, an associate justice of the court, the Republican nominee for president (losing narrowly to Woodrow Wilson), secretary of state and a Wall Street lawyer who argued more than 50 cases in the court.
"He was an important public figure," Chief Justice Roberts said. "The beard helped. He looked like God."
He did make one concluding commitment. "I'm not going to grow a beard," he said.