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     

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.     

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     

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.     

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.     

Military Curfew, Race-Based Internment, and Mr. Justice Rutledge

The story is well known. A few months after Pearl Harbor, a curfew was imposed on West Coast residents of Japanese ancestry, including American citizens. Then they were confined at internment camps around the country. This tragic episode continues to generate scrutiny, including three new books last year. ¹ But there is at least one story, as yet untold, that will be of particular interest to students of the Supreme Court. Why did Justice Wiley Rutledge, the Court's newest member, who was known for his unyielding allegiance to civil liberties, join the majority in allowing internment?     

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.     

Joining the Court: Pierce Butler

In a four‐year span beginning in the summer of 1921, five new members took their seats on the Supreme Court, and three of those men—the middle three—arrived on the Bench within four months of each other. The first of the five was William Howard Taft, who, upon the death of Edward Douglass White, was named Chief Justice of the United States by President Warren G. Harding. Minnesota corporate lawyer Pierce Butler wrote Taft a genial letter, extending his congratulations and best wishes. “I felicitate you because it is an honor to any man to be chosen to that, the most exalted position in the world, and because no one who is qualified to discharge the duties of the office can fail to rejoice in attaining it. But the country is to be congratulated much more than you are.” ¹     

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.     

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     

The Supreme Court in Times of Hot and Cold War: Learning from the Sounds of Silence for a War on Terrorism

Justice William J. Brennan once remarked that the Court has never fully developed a jurisprudence of national security. It is simply too episodic, he said. ¹ Our present Chief Justice would, it would seem, largely agree, though his own research shows some greater willingness for the Court to superintend—at least after the fact ² —the actions of the executive in times of war or similar crisis. My assignment in this essay was to ask the question slightly differently; namely, has the posture of the Court differed in times of hot or cold war, and if so, how has it differed? As will be evident momentarily, that question is less helpful to our present circumstance than it might seem. Why? Because, frankly, we are in neither a hot nor cold war, but something quite different ³ —something that has the potential to be not only hot, but blistering, and something which will likely never be fully appreciated as having gone truly cold.     

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.     

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.     

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.     

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     

Mapp v. Ohio Revisited: A Law Clerk's Diary

相似文献   

A New Standard of Review: Craig v. Boren and Brennan's “Heightened Scrutiny” Test in Historical Perspective

“To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” ¹ With this one statement, Justice William Brennan, Jr., writing for the majority in the 1976 Supreme Court case Craig v. Boren, ² both reversed the decision of the district court below and—more importantly—redefined the legal standard for equal protection in gender-discrimination cases. Brennan's statement encapsulated decades' worth of development and decisions under the Equal Protection Clause of the Fourteenth Amendment, which bars states from denying “to any person within [their] jurisdiction the equal protection of the laws,” ³ by creating what is now referred to as the “heightened scrutiny” ⁴ standard for judging equal protection legislation. Yet Brennan's creation of a new standard is quite striking, even when looked at in hindsight. How was Brennan able to create this standard of review, and where did it come from? Was this new step taken by the Justices under equal protection adjudication a mistake, or a necessary reality of the period? Through a close analysis of both the history of the Equal Protection Clause in its relation to gender legislation and the history of feminism during the 1960s and 1970s, the inevitability of Brennan's decision becomes clear. In fact, the creation of the heightened scrutiny standard was an inevitable outgrowth of two separate, yet fundamentally related progressions: the steps taken in the Court in its review of gender-discrimination cases in the years prior to Craig v. Boren; and the changes in society's relation to the feminist movement in the pre-1973 and post-1973 periods.     

Leaving Vietnam: Nixon,Kissinger and Ford, 1969–1975, Part two: January 1972–January 1973

Although anticipated, the North Vietnamese ‘Easter offensive’ against South Vietnam in 1972 created problems for the United States. Having reached a rapprochement with Communist China, President Nixon and his foreign policy adviser, Henry Kissinger, believed that the attack could have serious repercussions for their attempt to balance it with détente with the Soviet Union, not to mention the US's credibility as a Great Power. They also feared it would damage Nixon's prospects for re‐election in November 1972. Despite opposition from his Defense Secretary, Nixon renewed the bombing of North Vietnam which had been stopped by President Johnson in 1968. This helped to bring the North Vietnamese back to the conference table and after complex negotiations, a draft peace agreement was ready for initialling in October 1972. However, President Thieu of South Vietnam saw significant drawbacks in the agreement and refused to go along with it. The North Vietnamese chose to have one more attempt to win on the battlefield and President Nixon, who had scaled down the bombing when peace seemed closer and won a landslide victory in the presidential election, launched another eleven days of concentrated bombing raids on North Vietnam at the turn of the year. This led to the final agreement initialled on 23 January 1973, which President Thieu reluctantly acceded to. Thieu's reservations were justified, but Nixon realized that, despite his electoral victory, he could not count on the continued support of Congress and the American people for the war. Far from bringing ‘peace with honor in Vietnam and Southeast Asia’, the January agreement was a fig leaf to cover American withdrawal.     

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.     

Oral Advocacy and the Re-emergence of a Supreme Court Bar

Over the past generation, roughly the period since 1980, there has been a discernible professionalization among the advocates before the Supreme Court, to the extent that one can speak of the emergence of a real Supreme Court bar. Before defending that proposition, it is probably worth considering whether advocacy makes a difference—whether oral argument matters. My view after one year on the opposite side of the bench is the same as that expressed by no less a figure than Justice John Marshall Harlan—the second one—forty-nine years ago, after he completed his year on the Court of Appeals for the Second Circuit. ¹ Justice Harlan lamented what he saw as a growing tendency among the bar "to regard the oral argument as little more than a traditionally tolerated part of the appellate process," a chore "of little importance in the decision of appeals." ² This view, he said, was "greatly mistaken." ³ As Justice Harlan told the bar, "[Y]our oral argument on appeal is perhaps the most effective weapon you have got." ⁴