Justice Jackson and the Second Flag‐Salute Case: Reason and Passion in Opinion‐Writing

In 1943, the Supreme Court handed down West Virginia State Board of Education v. Barnette. ¹ With Justice Robert H. Jackson writing for the six‐Justice majority, the Court upheld the First Amendment right of Jehovah's Witnesses schoolchildren to refuse to salute the flag or recite the Pledge of Allegiance, state‐imposed obligations that the children and their parents contended were acts of idolatry that violated biblical commands. Judge Richard A. Posner has said that Justice Jackson's effort “may be the most eloquent majority opinion in the history of the Supreme Court.” ²     

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 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 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.     

Lincoln and Chief Justice Taney

Abraham Lincoln and Chief Justice Roger B. Taney may have met only twice—in 1849, when Lincoln made an oral argument before the Supreme Court, and in 1861, when Chief Justice Taney administered the presidential oath of office to Lincoln. The two men's roles in American history are inextricably bound nonetheless, as I will attempt to demonstrate in this essay.     

Democracy in Justice Kennedy's America: Reading Obergefell with Tocqueville

Justice Anthony Kennedy cites Alexis de Tocqueville in support of the majority opinion in Obergefell v. Hodges. But Kennedy's citation leaves much out of Tocqueville's original text. Looking at what Kennedy erases in his quotation of Tocqueville indicates some of the broader cultural and historic erasures that are present in the Obergefell decision (and in the Supreme Court's latter-day treatment of marriage and the family in general). Standing Obergefell next to Tocqueville yields suggestive possibilities for evaluating the evolution of recent Supreme Court jurisprudence—and recent American political thought, more generally speaking—on questions of marriage and family. Specifically, reading Obergefell with Tocqueville reveals the intellectual and political weakness of the contemporary Supreme Court.     

JURY DECISION MAKING MODELS AND THE SUPREME COURT: THE JURY CASES FROM WILLIAMS v. FLORIDA TO BALLEW v. GEORGIA*

This article analyzes recent U.S. Supreme Court decisions in cases relating to the size and unanimity of juries as an example of the use (and abuse) of social science by the Court in the realm of policy analysis. The four cases reviewed “cast an unflattering light on the U.S. Supreme Court's ability to integrate social science findings into public law.”     

Constructing British Authority in Australasia: Charles Cooper and the Legal Status of Aborigines in the South Australian Supreme Court,c. 1840–60

In 1840 the South Australian judge Charles Cooper wrote an opinion in which he suggested that Aborigines who had not been in contact with British settlers were not within the jurisdiction of the Supreme Court. The resulting controversy led the Colonial Office to clarify its view on the subjecthood of Aborigines within the colony and the colonial courts' jurisdiction over all subjects in the colony. The criminal jurisdiction of the Supreme Court over Aborigines became politically important because it raised wider questions of imperial authority and colonial policy. By placing Cooper's views in a broader Australasian perspective, the formation of Colonial Office policy and the distinctions between legal categories that informed that policy may be better appreciated. Cooper continued to question the general application of Supreme Court jurisdiction to Aborigines into the late 1840s. This caused a clash with Lieutenant-Governor Robe, who felt that any weakness in the formal authority or jurisdiction of the courts threatened the ability of the government to implement effective policies.     

Embodied spaces: religion,sex and nationalism in public and in court: a response to Sallie A. Marston

In response to Sallie Marston, this paper reads her case study in terms of religion and nationalism in order to explore the ways that culture is implicated in the state. To comprehend fully the contradictory decisions of the Massachusetts Supreme Judicial Court and the U.S. Supreme Court with regard to a lesbian and gay contingent in the Boston St. Patrick's Day Parade, it is necessary to interpret the decisions in light of the Protestant-inspired seperation of speech and action in the U.S. Constitution. This separation allows both Courts to disembody speech and separate it from the spatial context of action, which creates opposing decisions that do not adequately address the issues at hand. Understanding the role of religious nationalsim allows us to see how the final decision of U.S. Supreme Court enforces Protestant sexual regulation in the guise of protecting freedom.     

Legal Liberalism,Statutory Despotism and State Power in Early Twentieth-Century South Africa

This article is about the attempts by pre- and post-Union (1910) South African governments to create effective sedition laws, partly directly to curb specific political opponents, but also to license and focus state intelligence-gathering activities. Supreme Court judges' adherence to a rule-of-law formalism in a succession of court cases both hindered and encouraged these attempts. I am particularly interested in how the courts' imposition of more rigorous standards of performance in the production of evidence eventually exceeded the state's bureaucratic capability and undermined officials' confidence in the instrumental value of the rule of law, leading administrators to enact legislation to suppress their political adversaries without reference to the courts. The judges' stance in this history was not one of progressive or sudden capitulation to the lawmakers' and executive's will, as is sometimes argued, but notably consistent throughout.     

The Judicial and Ancient Game: James Wilson,John Marshall Harlan,and the Beginnings of Golf at the Supreme Court

Golf has a long history at the Supreme Court simply as an entertaining pastime for some of its members. Yet the Justices' interest in the sport can also be viewed as a reflection of the evolving work and culture of the institution and of the nation it serves. This article revisits a few early developments involving the first golfer on the Court (Justice James Wilson), the first golf enthusiast (the first Justice John Marshall Harlan), and the first golfing majority (October Term 1906).     

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     

John J. Parker and the Beginning of the Modern Confirmation Process

Ideological concerns' dominance of the Supreme Court confirmation process has certainly become routine, especially in the form of issue-driven interest groups' influence over the agenda for Senate debates. More significantly, the Senate normally focuses on what Laurence Tribe has called “the net impact of adding [a] candidate to the Court” ¹ in terms of steering the Court toward adherence to a particular judicial philosophy, such as originalism ² or pragmatism, ³ or toward a specific outlook on a given constitutional issue. And when the President nominates someone with prior judicial experience, the candidate's decisions, as well as his or her prior speeches or other public activities, become fair game as supposed indications of his or her fitness for service on the Court.     

Swift and Erie: The Trials of an Ephemeral Landmark Case

Like jazz improvisation, the meaning of Swift v. Tyson was elusive. ¹ Justice Joseph Story's 1842 opinion concerning an important commercial‐law issue arose from a jury trial. ² When the creditor plaintiff appealed, counsel for the winning debtor raised as a defense Section 34 of the 1789 Judiciary Act. The federal circuit court disagreed about the standing of commercial law under Section 34. Although profound conflicts otherwise divided nationalist and states'‐rights proponents, the Supreme Court endorsed Story's commercial‐law opinion unanimously. ³ New members of the Court and the increasing number of federal lower‐court judges steadily transformed the Swift doctrine; after the Civil War it agitated the federal judiciary, elite lawyers, and Congress. ⁴ Asserting contrary tenets of American constitutionalism, the Supreme Court overturned the ninety‐six‐year‐old precedent in Erie Railroad v. Tompkins (1938). ⁵ The Swift doctrine's resonance with changing times was forgotten. The Court and the legal profession established, transformed, and abandoned the doctrine though an adversarial process and judicial instrumentalism. Although the policy of each decision reflected its time, Story's opinion was more consistent with the federalism of the early Constitution than was Erie. ⁶     

Countering exclusion: the ‘St. Pats for all’ parade

The St. Patrick's Day parade in New York City has historically been a crucial site for annually reproducing narratives of Irishness through a very public performative ritual taking place on Fifth Avenue. However, in recent years controversy has surrounded this event, associated with the organizers' decision to ban self-identifying Irish homosexuals, a decision supported by the US Supreme Court. In response, a ‘counter-parade’ now takes place in the neighboring borough of Queens, which is beginning to mount a serious challenge to the more established ritual. Billed as the first all-inclusive St. Patrick's Day parade in the city's history, this ‘St. Pats for All’ parade articulates a very different narrative of Irishness than that paraded on Fifth Avenue. In this article I seek to examine this alternative event and the contested identity politics associated with Irishness in New York City, focusing primarily on the axes of nationalism and sexuality, and the role played by public space.     

Lincoln and the Rebirth of Liberal Democracy

It is a privilege to speak in this, the house of the Supreme Court of the United States, of Abraham Lincoln, our supremely great President. His task, he said, was greater than George Washington's. In the United States’ gravest crisis and most terrible war, Lincoln saved the country, its democratic republic, and the republic's devotion to the equal rights of man. He did more than save. He renewed the republic and purified it of slavery.     

The Development of the Supreme Court Practice of Calling for the Views of the Solicitor General

"When the Supreme Court invites you, that's the equivalent of a royal command. An invitation from the Supreme Court just can't be rejected." ¹ The guest most frequently invited to the Supreme Court is the Solicitor General. Even before the practice of the Supreme Court calling for the views of the Solicitor General process developed, the Court occasionally invited the Solicitor General to participate as amicus in important cases by submitting a brief and/or participating in oral arguments before the Court. ² As then–Solicitor General Simon E. Sobeloff remarked to then–Attorney General Herbert Brownell in a 1954 letter about the landmark school desegregation cases, "The Supreme Court has expressly extended an invitation to the United States to participate in the reargument. While this by no means compels participation, such an invitation is not to be lightly declined." ³     

The Case of William Dick: Ransom County, North Dakota

In May 2009, a decision of the United States Supreme Court with North Dakota roots turned fifty years old. A case unique in the annals of the law, Dick v. New York Life Insurance Company ¹ still fascinates lawyers today. Factually, the case presented a strange question: could an experienced hunter accidentally shoot himself not once, but twice? Some of North Dakota's finest lawyers, including Philip Vogel, Donald Holand, and Norman Tenneson, aimed to get to the bottom of that matter. The judges were equally impressive: Judge Ronald Davies of the federal district court; Judge John Sanborn of the U.S. Court of Appeals for the Eighth Circuit; and Chief Justice Earl Warren and Justice Felix Frankfurter. Finally, as a matter of Supreme Court jurisprudence, Dick may have been the last time the High Court granted a petition for certiorari in a case that turned almost exclusively on questions of fact. In honor of its golden anniversary, this article recounts the captivating story of Dick v. New York Life.     

Attorney General Kennedy versus Solicitor General Cox: The Formulation of the Federal Government's Position in the Reapportionment Cases

In a recent article in this journal, “May It Please the Court? The Solicitor General's Not-So-‘Special' Relationship: Archibald Cox and the 1963–1964 Reapportionment Cases,” ¹ Helen J. Knowles shows how the Supreme Court went beyond the arguments of the Solicitor General, Archibald Cox, in establishing “one man, one vote” as the governing principle for the election of state legislators. In making this demonstration, Ms. Knowles also shows how Attorney General Robert Kennedy prevailed on Cox to support the plaintiffs in six reapportionment cases despite Cox's serious doubts about this position. ² In doing so, Ms. Knowles was more than generous in describing my small part in this story.     

A Transformed Triangle: Court, Congress, and Presidency in Civil Rights

The relative permeability of the three elements of a triangle-the Supreme Court, Congress, and the president-to civil rights interest groups has varied over time. For almost two decades after World War II, the Supreme Court was the groups' preferred arena because Congress was resistant and presidents could thus do little or were hesitant to act. For a brief time in the mid-1960s the president and Congress became supportive of civil rights groups' claims while the Court also remained accessible. Starting in the late 1960s executive and legislative support for civil rights moderated, with presidential support declining significantly in the 1980s. When the Supreme Court adopted that latter stance, Congress became the body through which to protect civil rights by reversing the Court's decisions. In this examination of the "transformed triangle" in civil rights policymaking, we look at this change over time and at "flip-flops" in litigation as one administration changes the position espoused by its predecessor, and we also give some attention to the Supreme Court's response to congressional reversal of its rulings.