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 Supreme Court, Separation of Powers, and the Protection of Individual Rights during Periods of War or National Security Emergency

To paraphrase Lincoln, there is little that I could say on the history of the Supreme Court's handling of civil-liberties issues during periods of war or national emergency that could add or detract from the truly masterly job Chief Justice William Rehnquist has already done in All the Laws But One . ¹ I highly recommend that book to any who have not yet read it. Because the Chief Justice has provided such an outstanding overview of the subject, I shall depart a bit from what I might otherwise have said on this topic.     

Oversimplifying the Supreme Court

I cannot tell you what a pleasure it is to be at the Supreme Court Historical Society. Of course, the Supreme Court is fortunate to have a Chief Justice who is also Chief Historian. I have read each of Chief Justice Rehnquist's books on the Court, and they are engagingly written narratives filled with a love and knowledge of this institution. The Chief Justice is steeped in the folklore of this remarkable Court as few have ever been. This is just one reason those of us throughout the federal judiciary admire and love the Chief. He has shown kindness to me ever since I was a young law clerk for Justice Lewis Powell. I don't know if it's appropriate or not to dedicate a speech, but I am going to do so anyway. This speech is for him.     

The Original Justice Roberts

The Supreme Court had rarely, if ever, seen a fight quite like the one over the farewell letter to a departing Justice. It started routinely enough in the summer of 1955, when Chief Justice Harlan Fiske Stone drafted a letter of farewell to Justice Owen J. Roberts, who had suddenly resigned after fifteen eventful years on the Court. The six-sentence missive went first to the Senior Associate Justice, Hugo L. Black, to be signed and passed along to his Brethren.     

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     

Remembering Rehnquist

William Hubbs Rehnquist spent the last thirty-three years of his life as a member of the U.S. Supreme Court, fifteen as an Associate Justice and eighteen as Chief Justice. I met Bill when I was a freshman at Stanford in 1946. He was attending Stanford and working part time as a "hasher" at my dormitory during the evening meal. He amazed all of the young women by carrying such heavy loads of dishes on his tray. Perhaps that is how he learned to carry all those heavy loads in all of the years that followed. He was tall and good-looking, and he had a sharp sense of humor.     

The Conflict between the Chief Justice and the Chief Executive: Ex parte Merryman

Rarely does the clash of ideas on the scope of governmental authority get reduced to a direct conflict between leaders of the branches of government. However, early in the Civil War period, the Chief Executive and the Chief Justice confronted each other in a direct fashion. The stakes were high, because the issues related to the conflict between national security and personal liberty.     

The Four Good Dissenters in Pollock

The overall theme of this lecture series is great dissenters. This contribution to the series is on the dissenters in the 1895 case of Pollock v. Farmers' Trust & Loan Co. In Pollock, the Supreme Court decided, by a vote of 5–4, that the 1894 federal income tax was unconstitutional. The four dissenters—Justice Henry Brown of Michigan, Justice John Marshall Harlan of Kentucky, Justice Howell Jackson of Tennessee, and future Chief Justice Edward D. White—would have upheld the tax.     

INNOVATION IN THE ADMINISTRATION OF JUSTICE, 1969-1981: AN OVERVIEW

Innovation in judicial administration has proceeded slowly for many reasons. The attitudes of judges not-inclined by training toward management, the tradition of Judicial independence, and the separation of powers are examined as contributing factors inhibiting judicial modernization. Federal Judicial reform has defended historically upon the leadership of a Chief Justine of the United State? willing to use the office to dramatize and promote the issues. The most recent period of dramatic change in judicial administration, from 1969-1981, is reviewed with a focus upon the strategies for change employed by Chief Justice Warren E, Burger.     

The Judicial Bookshelf

The year 2005 will remain notable in Supreme Court history. A nearly unprecedented period of stability in the Court's membership came to an end. The nation witnessed the appointment of a new Chief Justice, and, for the first time since 1971, a President and the Senate confronted the momentous responsibilities of two simultaneous vacancies to fill.     

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.     

Duty and Justice at "Every Man's Door": The Grand Jury Charges of Chief Justice John Jay, 1790–1794

"It is the Fortune of few to chuse their Situation—it is the Duty & Interest of all to accommodate themselves to the one which Providence chuses for them." ¹ So said John Jay, Chief Justice of the United States. Duty was paramount in the lives of Jay and many of his contemporaries of the founding generation.     

The Flag Salute Cases Reconsidered

First, my very warmest thanks to the Supreme Court Historical Society for inviting me, to Chief Justice Roberts for his most gracious introduction (which I can only hope will not be retracted silently by the time I finish), and to all of you for coming inside on a glorious spring day to listen to an old professor talk about constitutional law.     

In Defense of “Public Reason”: Supreme Court Justice William Johnson

For those of us who gravitate toward rebels and upstarts, Supreme Court Justice William Johnson has uncommon appeal, if only because he was the first member of the federal Bench to kick up his heels in a sustained, effective, and deliberate way. In 1954, Johnson's only biographer, Donald Morgan, proclaimed him “the first dissenter,” ¹ a force for democratization in the style of Thomas Jefferson and Andrew Jackson, the man who persuaded Chief Justice John Marshall to compromise on the question of unitary opinions and institutionalize (if not applaud) publication of concurring or dissenting departures from the majority's official reasoning.     

‘Never a Machine for Propaganda’? The Australian-American Fulbright Program and Australia's Cold War

Abstract

Some overlap in personnel between the Australian-American Fulbright board and those advising Menzies on anti-communist legislation and the 1951 referendum, including former Chief Justice J. G. Latham, raises questions about the politicisation of the Fulbright program over this period. A careful reconstruction of the Australian scheme's founding years reveals, however, that the program resisted becoming a simple instrument of Cold War foreign policy. This was thanks to careful groundwork laid by Evatt's Department of External Affairs, ensuring a measure of independence to the Australian board, and board member Latham's strategic defence of the program's educational goals when pressures were felt.     

William Howard Taft and the Importance of Unanimity

This Term, the Historical Society has put on a wonderful series about the man who is widely—and rightly—regarded as this Court's greatest Chief Justice. Through his recognition of the right of judicial review, John Marshall secured for this Court a role in shaping the nation's most important principles: racial equality, individual liberty, the meaning of democracy, and so many others.     

Property Rights versus "Public Necessity": A Perspective on Emergency Powers and the Supreme Court

Chief Justice Earl Warren once wrote that a free government is continuously "on trial for its life." ¹ And never are the foundations of constitutional liberties more fragile than in periods of emergency, when government invokes extraordinary powers. Invariably, emergency powers involve the immediate curtailment of some rights; at their extreme in martial law, they can warrant an entire suspension of normal civilian governmental functions, as well as full suspension of due-process guarantees. ² Once the constitutional fabric has been stretched to accommodate urgent public necessity in such situations, moreover, restoration to its earlier condition is not automatic or inevitable. On the contrary, as Justice Robert Jackson presciently warned, once the Supreme Court validates as constitutional the abridgement of essential rights during an emergency—and especially when the Court does so in relation to "the vague, undefined and undefinable 'war power'"—any principle that is thus articulated to justify such emergency action "then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need." ³     

Before Marbury: Hylton v. United States and the Origins of Judicial Review

Marbury v. Madison, decided in 1803, is famous for being the first case in which the Supreme Court asserted its power of judicial review. The typical American history textbook includes at least a few lines about how the Court, under the "Great Chief Justice," John Marshall, struck down part of the Judiciary Act of 1789 and claimed its authority to stand as the ultimate guardian of the Constitution.     

The History of the Per Curiam Opinion: Consensus and Individual Expression on the Supreme Court

Readers of Supreme Court opinions have become so accustomed in recent years to the multiple concurrences and dissents that accompany important opinions that it is difficult to recall that this is a relatively recent phenomenon. It is only in the past century that the Court's traditional balance of the institutional and the personal has shifted from an insistence on presenting what Learned Hand termed "monolithic solidarity" to the world. That insistence began with Chief Justice Marshall's determination that the Court should resolve its cases, not seriatim, with each Justice writing separately, but instead in a single, unified opinion. The resulting culture of the Court, one that discouraged both dissenting and concurring opinions as assaults on this unified front, persisted from Marshall's day into the 1930s.3 The Court in the nineteenth and early twentieth centuries thus deliberately submerged the idea of a personal voice in the fiction of a collective voice, one that spoke for the institution rather than for the Justice who served as its designated scribe.     

High Court Review 2009: Exit Kirby,Enter Consensus?

In its first full year under the leadership of Chief Justice Robert French, 2009 marked two key developments in the High Court: the retirement of Justice Michael Kirby and a shift to greater consensus amongst members of the bench. The first part of the Review analyses Kirby's contribution to Australian jurisprudence and asks whether lower rates of dissent can be attributed to his exit alone. The second part of the Review examines the key constitutional decisions handed down by the Court in 2009, which decided matters relating to the acquisition of property on ‘just terms’ in the Territories, the application of the Kable doctrine to preserve the separation of powers in the States and the source and scope of the Commonwealth's power to spend.