Feminism and Nationalism in China's War of Resistance against Japan

In November 1959, India's Prime Minister, Jawaharlal Nehru, turned seventy. Having led his country since Britain's departure from South Asia in August 1947, Nehru's seventieth birthday stimulated debates, both inside and outside the Indian subcontinent, on India's future in a post-Nehruvian world. In the early 1960s, with the Indian premier's health deteriorating and Sino-Indian relations under strain, British and US policymakers evidenced increasing concern with whom, or perhaps more pertinently, with what, forces would govern the world's largest democracy after Nehru. This article, which draws upon recently released British and US archival records, provides the first assessment of Western involvement in the struggle to succeed Nehru which occurred within India's ruling Congress Party between 1960 and 1964. Moreover, it offers insights into Anglo-American concern that Nehru's health adversely affected Indian policymaking; the involvement of foreign intelligence services in India's domestic politics; and the misplaced expectations of British and US officials that the appointment of Lal Bahadur Shastri as India's second Prime Minister, in May 1964, would herald the beginning of a new and more productive relationship between India and the West.     

The Life and Career of Justice Robert H. Jackson

Robert H. Jackson was one of the most influential Justices of the Supreme Court in the twentieth century. His tenure on the Court ran from 1941 to his death in 1954, and during that time he participated in landmark cases involving the programs implemented by Roosevelt's New Deal to rescue the country from Depression, having previously served the administration in other roles. He authored a memorable dissent in United States v. Korematsu, the notorious Japanese internment case. ¹ He is also remembered for the role he served as the chief American prosecutor before the International Military Tribunal that tried Nazi leaders after World War II. In some ways, Jackson's fierce independence and the lessons he learned growing up in a small town were the ideal training for the demands and competitiveness of the nation's highest Court. That Jackson's words and beliefs still have relevance in the twenty‐first century is evidenced by the fact that both recent Supreme Court appointees quoted him during the confirmation hearings. ² In this essay, I will examine how Jackson's life experiences influenced his legal career and informed his jurisprudence, and to what extent Jackson lived up to his own vision of the role of a Supreme Court Justice.     

The Arlington Cemetery Case: A Court and a Nation Divided

Seventeen years after the Confederate general Robert E. Lee surrendered at Appomattox, his eldest son won a sweeping victory over the federal government in the United States Supreme Court. On December 4, 1882, the Supreme Court upheld a federal trial court's ruling that the United States government's claim of title to Arlington National Cemetery rested on an invalid tax sale. The Justices thus affirmed the lower court's verdict that George Washington Custis Lee (“Custis Lee”), eldest son of Mary and Robert E. Lee, held legal title to Arlington. The Supreme Court also upheld the lower court's decision to permit Custis Lee to bring suit against the government officers who occupied Arlington. On the latter point, the Justices split 5 to 4, with a majority ruling for Custis Lee. The outcome of United States v. Lee, commonly known as the Arlington case, made it clear that the Lee family, and not the United States government, owned Arlington.     

The Judicial Bookshelf

A well‐established fact of American government is the unpredictability of vacancies on the U.S. Supreme Court. Representatives and Senators face voters every two and six years, respectively. A President serves for four years and may be reelected only once. Justices, however, do not sit for fixed terms and in effect enjoy life tenure. After his inauguration as the forty‐third president in January 2001, George W. Bush had no opportunity to make a High Court appointment until he was well into his second term when, on July 1, 2005, Justice Sandra Day O'Connor announced her intention to leave the Bench. ¹ By contrast, the forty‐fourth President encountered his first High Court vacancy much sooner, and in his first term, as Justice David Hackett Souter notified the Obama White House on May 1, 2009, of his intention to retire from “regular active service as a Justice” when the Court recessed for the summer. ²     

General Yamashita and Justice Rutledge

At 2:30 in the morning on February 23, 1946, in a small country village south of Manila in the Philippines, Japanese Lieutenant General Tomoyuki Yamashita was told, "It's time." Not three weeks after the U.S. Supreme Court had denied his request for review—with Justices Wiley Rutledge and Frank Murphy dissenting—General Yamashita, the "Tiger of Malaya," was hanged.     

Alberta’s Great Experiment in Senatorial Democracy

In 2014, the Supreme Court of Canada ruled that the unelected nature of the Senate is an inherent feature of Canadian parliamentary democracy and is a central pillar of the constitution. Members of the Upper House are appointed by the Governor General, acting on the advice of the Prime Minister. The decision taken by the Prime Minister is not subject to review by Parliament or the provincial legislative assemblies. Patronage appointments have given the Senate a reputation as a dumping ground for political friends and party insiders. In 1989, the province of Alberta enacted the Senatorial Selection Act, arguing that it would serve as a stepping stone for substantive reform to the Senate. The province has held four elections in which the people of the province have chosen senators-in-waiting. This article argues that the Court’s opinion in Reference re Senate Reform undermines the foundation upon which the provincial statute rests.     

In the Shadow of Great Power Politics: Why Nehru Supported PRC's Admission to the Security Council

In early 1950s, India's Prime Minister, Jawaharlal Nehru turned down suggestions that India become a Security Council Permanent Member. As per suggestions, India would either take China's seat occupied by Republic of China (RoC) or become the sixth member alongside RoC. Nehru turned down these overtures arguing that People's Republic of China (PRC) should occupy China's seat at the Security Council. This study ascertains why India turned down apparently good offers and instead championed PRC's cause at a time when there existed marked political differences between them. While some have analyzed India's stand strictly in bilateral terms, this study casts the net wider. By closely examining Nehru's writings and correspondences, it argues that Nehru's support was based on his understanding of PRC and its position as a great power in international relations. Early twentieth-century developments had taught him that great powers that were ostracized became a source of instability. In an era that saw the unveiling of nuclear bombs, the cost of a dissatisfied PRC would be tragic. To stabilize the system, it was necessary to accommodate PRC within the Security Council and provide it with the veto. This would assuage PRC and check its revisionist tendencies.     

Tribute to Justice Souter

When the U.S. Supreme Court Justices took their seats at the beginning of the 2009 Term, the Bench looked different. Gone from the Bench, after nineteen years, was David H. Souter. He returned to his home in New Hampshire, a state he likes enormously. Justice Souter will be missed by his former colleagues and by advocates before the Court, by legal scholars nationwide and by all who follow the Court's work and activities.     

周恩来赴印度三次规劝十四世达赖喇嘛

西藏和平解放后,1956年4月成立了西藏自治区筹备委员会,着手进行民主改革。西藏上层分裂分子大为恐惧,在西康地区发动武装叛乱。1956年11月,印度邀请十四世达赖喇嘛参加释迦牟尼涅槃2500周年大会。国外敌对势力和流亡的西藏上层分裂分子包围达赖,鼓动"西藏独立",策反随行官员,致使达赖和随行官员思想混乱并滞留印度。1956年底,周恩来在访问印度期间与达赖进行了三次谈话,阐明了党的方针政策,教育随行官员和达赖的家人,争取印度总理尼赫鲁的支持,为达赖最终安全返回西藏起到了关键作用。     

The Judicial Bookshelf

“The good that Presidents do is often interred with their Administrations. It is their choice of Supreme Court Justices that lives after them.” ¹ This was the assessment offered by one leading opinion journal more than seven decades ago, after President Franklin D. Roosevelt nominated Professor Felix Frankfurter to the Supreme Court to fill the opening occasioned by the death of Justice Benjamin N. Cardozo. Because vacancies on the Court not only are infrequent but also occur at irregular intervals, the comment illustrates the reality that selection of Justices is among the most important and consequential responsibilities that fall to any chief executive.     

Herbert Brownell,Jr.: The “Hidden Hand”1 in the Selection of Earl Warren and the Government's Role in Brown v. Board of Education

There are, of course, many heroes behind the Supreme Court's most famous and, some would argue, most significant case of the 20^th Century: Brown v. Board of Education. ² Chief Justice Earl Warren wrote the decision and is credited with convincing the other Justices to make it unanimous. Thurgood Marshall and Robert L. Carter argued important aspects of the case for the NAACP and championed a legal strategy that brought it to the High Court. Few, however, would readily name Herbert Brownell, Jr. as one of the heroes. Yet, as Attorney General, Brownell was President Eisenhower's chief adviser on judicial appointments when he put Warren on the Court, and Brownell led the Justice Department in supporting the notion that segregation of public schools violated the Constitution.     

The fateful Indian recognition of West Germany, 1949

India’s recognition of West, but not East, Germany was the foundation of an inconsistent policy on Germany from India and many other non-aligned countries. It was the outcome of a lack of professionalism, indecisiveness, the pragmatic considerations of a junior Indian diplomat in Berlin, and the laconic approval of the anti-communist secretary-general of the Ministry of External Affairs, Girja Shankar Bajpai. Neither Prime Minister Jawaharlal Nehru nor his advisor V.K. Krishnan Menon were involved at all. Officials around Foreign Secretary K.P.S. Menon held that the GDR should also be recognised in due course, but did not exercise sufficient influence. India would stand by its decision for 23 years and thereby set an example for other non-aligned countries.     

Unlikely Abolitionist: William Cushing and the Struggle Against Slavery

One of the striking differences between the federal Union established under the Constitution and the Confederation of States established under the Articles of Confederation is the creation under Article III of a judicial power of the United States and of a Supreme Court to exercise that power. Acting pursuant to its power to determine the structure of that Court, Congress determined that the Court should consist of one Chief Justice and five Associate Justices. The six lawyers President Washington named to the Court ¹ were leading members of the bar, yet none achieved lasting distinction by reason of his service on the Court. Chief Justice Jay, for example, is best remembered for the treaty with England which bears his name; and when he resigned in 1795 following his election as Governor of New York, local papers referred to his new office as "a promotion." ²     

The Judicial Bookshelf

Change at the Supreme Court may be most visible and frequent in the progression of statutory and constitutional questions the Justices resolve collectively, but it may also be equally highlighted by an individual Justice's decision. This reality became plainly apparent in a letter that Justice John Paul Stevens sent to the White House on April 9, 2010, just eleven days shy of his 90^th birthday: “My dear Mr. President: Having concluded that it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court's next Term, I shall retire from regular active service as an Associate Justice … effective the next day after the Court rises for the summer recess this year.” ¹ His statement was dated almost a year after Justice David Souter dispatched a similar notice to President Obama on May 1, 2009, announcing his intention to leave the Bench. Thus, for the fifth time in as many years, the machinery of executive nomination and senatorial advice and consent for the High Court churned again.     

Justices Seeking the Presidency

The separation of powers in the Constitution of the United States has never been absolute in either theory or practice. This is especially true in the quest for public office. At least one President, William Howard Taft, aspired to be a Supreme Court Justice. Several Supreme Court Justices seriously considered becoming President. These are a few stories about those ambitions.     

Cooper v. Aaron (1958): A Hidden Story of Unanimity and Division

Contemporary and later commentators emphasized the Supreme Court's forceful affirmation of its own authority in Cooper v. Aaron (1958). The case was the Court's first significant test of states' rights opposition denying that Brown v. Board of Education (1954) (Brown I) and the Brown II (1955) decree permitting gradual implementation were legitimate constitutional law. Indeed, following the Court's announcement of Cooper v. Aaron in September 1958, Arkansas Governor Orval Faubus and his followers closed the very same Little Rock schools the Supreme Court had ordered desegregated. Black students' rights did not prevail until summer 1959. In Arkansas and elsewhere, defiance initially triumphed over the Supreme Court's self‐assertive power. ¹     

David Souter: A Clerk's View

Many former Supreme Court clerks describe their clerkship as the best job of their lives. David Souter's former clerks do too, though with what I believe is a greater than normal frequency. (As a former Souter clerk I confess to partiality.) But while Souter resembles other Justices in the devoted affection he inspires, he was in many other ways a very unusual presence at the Supreme Court.     

The Supreme Court in the Nineteenth Century

At the beginning of the nineteenth century, we find a Court which has not yet found its role, and whose principal impact is deciding which litigant wins in a particular lawsuit. Chief Justice John Marshall, appointed in 1801, changes that; he and his successor, Roger B. Taney, are the dominant figures in the Courts over which they preside. From 1801 until 1864-sixty-three years-the nation had only two Chief Justices; during the same time, it had fifteen presidents. In the latter part of the nineteenth century, the Chief Justices are less dominant and influential, sharing their authority with several notable Associate Justices. By the end of the century, the Court is beginning to wrestle with the many problems facing the nation after a little more than a century of existence.     

The Buddha and the Bumblebee: The Saga of Stanley Reed and Felix Frankfurter

During the years since the first appointments of Justices to the Supreme Court in 1789, many interesting relationships have occurred between Justices. Some were amicable, but others involved animosity. No such long-Term relationship is more fascinating than the eighteen years Stanley Reed and Felix Frankfurter spent as Brethren. It featured neither consistent amicability nor animosity, but it is intriguing because it ran the gamut from admiration and respect through pettiness and condescension to frustration and serious annoyance. Nevertheless, Reed and Frankfurter probably were closer for a longer period than virtually any other two Associate Justices in the history of the Court. Moreover, the hundreds of letters, notes, and memoranda they exchanged must dwarf the output of any other two Justices.     

The “Good Old #3 Club” Gets a New Member

It has been said that serving on the U.S. Supreme Court is like being a member of an exclusive club. Yet within this club, there are even more exclusive clubs that only a small number of Justices are permitted to join. These shadowy associations are unseen by the public, receive no publicity, and are not even known to the Justices who are excluded. The existence of these secretive organizations has recently been revealed through the release of Justice Harry Blackmun's papers at the Library of Congress. This article is the first serious attempt to research the existence, membership, and practices of these clandestine alliances. Ultimately, as with many High Court practices, these newly uncovered connections may be in need of reform, and I offer a number of solutions to define membership criteria and improve their functioning.