The subordination of the war justices to the president was all the more remarkable given their frequent petty bickering. Noah Feldman of Harvard Law School has described four of them—Hugo Black, William O. Douglas, Felix Frankfurter, and Robert Jackson—as “scorpions” whose venomous rivalries knew few bounds. Frankfurter, for example, is said to have privately described Douglas as one of the “two completely evil men I have ever met”—a description that, had he known of it, the freewheeling Douglas (who regarded Frankfurter as a pedantic prig) might have enjoyed.
These personal squabbles, fierce though they were, rarely surfaced in the Court’s opinions. A major exception concerned the issue of recusal—when a justice should be disqualified from hearing a case—which, then as now, was a matter that the Court found difficult to deal with. In a great many instances, according to Sloan, various justices vehemently disagreed with the refusal of one or more of the others to disqualify themselves. But the issue emerged publicly in only one case and even then in somewhat veiled terms.
That case was Jewell Ridge Coal Corporation v. Local No. 6167, United Mine Workers of America (1945). After a 5–4 decision in favor of the union, the losing corporation petitioned for reconsideration on the grounds that one of the justices in the majority, Black, should have been disqualified because the union’s lawyer not only had close and long-standing personal ties with him but had also been, it turned out, his personal lawyer. While the Court as a whole rejected the petition, Jackson, who felt strongly that Black should have been disqualified, wrote a concurrence stating that the only reason he was concurring was because the Court left recusal decisions to the individual justices. He then added:
It appears always to have been considered the responsibility of each Justice to determine for himself the propriety of withdrawing in any particular circumstances. Practice of the Justices over the years has not been uniform, and the diversity of attitudes to the question doubtless leads to some confusion as to what the bar may expect.
As Sloan notes, Black was furious at this passage, which he took to be a veiled reproach to his decision not to recuse himself. He retaliated a year later by successfully lobbying against Jackson’s rumored appointment as chief justice.
In his concurrence, Jackson also noted, “No statute prescribes grounds upon which a Justice of this Court may be disqualified.” In 1948, however (after the period covered in Sloan’s book), Congress passed what is now codified as section 455 of title 28 of the United States Code, which begins, “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”