The Invisible Dance: The Supreme Court and the Press

Abstract

In America, Tocqueville writes, men were born equal; they did not have to become so.¹ But he is not unaware of the radical democratic character of the American revolution of which Gordon Wood has reminded us.² Prior to 1776, Tocqueville observes, the democratic principle was “far from dominating the government of society.” It was the Revolution that made it “the law of laws.” “The war was fought and victory obtained in its name” (1:1, ch. 4. 59).     

Many Voices,One Court: The Origin and Role of Dissent in the Supreme Court

E pluribus unum—out of many, one—is the phrase emblazoned on the Seal of the United States, which refers to the notion that a single American voice emerges from the many diverse groups that constitute the nation. The legislative and executive branches of government often act as one voice through legislative bills and executive acts, aggregating diverse interests that reflect the national will. The notion of e pluribus unum, however, is not often applied to the judiciary, a branch of government the members of which are viewed, not as outlets for the will of the people, but as gatekeepers of the rule of law. But while the Supreme Court may not speak directly for the people, its opinions speak to the people, and the methods used by the Justices to express those opinions have revealed changes in the conception of the Court's voice throughout history.     

The Journalist as Historian: Anthony Lewis, Civil Liberties, and the Supreme Court

The genesis of the column that Anthony Lewis wrote for The New York Times between 1969 and 2001 was a red face—not Lewis's, but that of Arthur Ochs Sulzberger. The Times ' publisher offered Lewis the column as a consolation prize after outgoing executive editor James Reston mistakenly informed Lewis that the job of deputy to A. M. Rosenthal, the new executive editor, was open and that Lewis was a logical candidate. ¹     

Explaining Supreme Court Policymaking in Civil Rights: The Influence of the Solicitor General, 1953–2002

What factors explain Supreme Court policymaking in civil rights cases? Despite the importance of this question of law and policy, few empirical studies have explored the problem on the area of racial and ethnic discrimination. This study seeks to fill this gap by assessing the importance of the solicitor general, the federal government's representative before the Supreme Court, as a litigant and in the filings of amicus curiae briefs. The findings confirm that the solicitor general's presence in civil rights cases does matter when explaining whether the Supreme Court reaches a liberal or conservative outcome. This research demonstrates the significance of executive‐judicial interaction in explaining Supreme Court policymaking in civil rights cases.     

The Supreme Court and the Interstate Slave Trade: A Study in Evasion, Anarchy, and Extremism

Opponents of slavery often argued that the federal government possessed the constitutional authority to outlaw the interstate slave trade. At its founding in 1833, the American Anti‐Slavery Society declared that Congress “has a right, and is solemnly bound, to suppress the domestic slave trade between the several States.” The idea had been endorsed earlier, during the Missouri controversy of 1819–1820, by both John Jay and Daniel Webster. Later on, in the 1840s and 1850s, it was supported by such prominent politicians as John Quincy Adams, Salmon P. Chase, and Charles Sumner. Defenders of slavery were, of course, horrified by the suggestion that the South's peculiar institution might be attacked in this way, and they vehemently denied that the Constitution permitted any such action. The prolonged debate over the issue focused on two key provisions of the Constitution. One was the Commerce Clause (Article I, Section 8, Clause 3), which says that Congress has the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The other was the 1808 Clause (Article I, Section 9, Clause 1), which says that the “Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight.” Abolitionists held that the Constitution sanctioned congressional interference in the domestic slave trade both generally, by virtue of the Commerce Clause, and specifically, by virtue of the 1808 Clause. They argued that since slaves were routinely bought and sold, they obviously were articles of commerce, and therefore Congress had unlimited authority over interstate slave trafficking. Furthermore, they said, the words “migration or importation” in the 1808 Clause meant that as of January 1, 1808 Congress had acquired the right not only to ban the importation of slaves, but also to prohibit their migration from one state to another. Defenders of slavery replied that Congress could not interfere in property rights and that the power to regulate commerce did not include the power to destroy it. They also said that the word “migration” in the 1808 Clause referred, not to the domestic movement of slaves, but to the entry into the United States of white immigrants from abroad. ¹