Recovering a "Lost" Story Using Oral History: The United States Supreme Court's Historic Green v. New Kent County, Virginia, Decision

Abstract In 1965, New Kent County, located just east of Richmond,Virginia, became the setting for the one of the most importantschool desegregation cases since Brown v. Board of Education.Ten years after the U.S. Supreme Court declared "separate butequal" unconstitutional, both public schools in New Kent, theGeorge W. Watkins School for blacks and the New Kent Schoolfor whites, remained segregated. In 1965, however, local blacksand the Virginia State NAACP initiated a legal challenge tosegregated schools, hoping to initiate desegregation where theprocess had yet to begin and to accelerate the process in areaswhere token desegregation was the norm. In 1968, the U.S. SupremeCourt decision in Charles C. Green v. the School Board of NewKent County forced New Kent County and localities across thestate and nation to fulfill the promise of Brown. While thecase has been part of the court records since it was decidedin 1968, it has remained largely unknown to the general publicand many scholars of the era. This article is an attempt touse the tool of oral history to present the people and the storybehind Green v. New Kent County and to add another piece tothe puzzle that was school desegregation in this country.     

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 Judicial Bookshelf

"In law, also, men make a difference," ¹ counseled Felix Frankfurter the year before his appointment to the Supreme Court. Frankfurter highlighted one of the three critical components of judicial decision-making in constitutional law: alongside the text of the Constitution itself and the cases that pose various questions for decision are the women and men who answer those questions. Those answers, as Frankfurter believed, are invariably influenced by the values Justices bring with them to the Bench. Yet he was expressing no newfound truth, but an awareness that had been apparent for a long time. "Impressed with a conviction that the true administration of justice is the firmest pillar of good government," President George Washington wrote future Attorney General Edmund Randolph in 1789, "I have considered the first arrangement of the judicial department as essential to the happiness of our country and the stability of its political system." To be sure, the Court's role in the political system was unclear, but Washington realized the impact the Court might have in the young Republic. This required, he told Randolph, "the selection of the fittest characters to expound the laws and dispense justice." ² And as he filled the six seats Congress had authorized for the Supreme Court, the first President made sure that each nominee was a strong supporter of the new Constitution.     

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.     

National League of Cities and the Ephemeral Nature of Significant Supreme Court Cases

For many years, I taught third‐year law students at the Dickinson School of Law (Penn State's law school now, a private institution then) a seminar entitled “The Constitution.” For a semester we would seek to get to know the document through a careful reading of it, along with some of the works that those who wrote the Constitution would have read and some that they wrote, various essays by legal scholars and political scientists, and various Supreme Court cases. The goal was to get these budding young attorneys to try to determine what, if any, relationship there might be between what the Constitution says and what we now say it says.     

The Exception That Defines the Rule: Marshall's Marbury Strategy and the Development of Supreme Court Doctrine

Analyzing the development of the European Court of Justice (ECJ), Laurence Helfer and Anne-Marie Slaughter argue that in the early years of the court, ECJ justices "borrowed a leaf from Chief Justice John Marshall's book, edging principles forward while deciding for those most likely to oppose them in practice."¹ The most famous example of this paradox in Marshall's jurisprudence can be found, of course, in his seminal opinion in Marbury v. Madison. While asserting the right of the judicial branch to nullify legislation it deemed unconstitutional, Marshall used an implausible construction of the jurisdictional powers given to the Supreme Court in Article III of the Constitution² to deny the petitioner the remedy to which Marshall claimed he was otherwise entitled. While Marbury is generally portrayed as the fountainhead of judicial review in the United States (and therefore in liberal democracies in general), as Mark Graber points out, the decision was in fact a "strategic judicial retreat…in the face of threats by executive…power."³ In order to assert the power of judicial review, in other words, Marshall had to refrain from applying it in the case in question.     

May It Please the Court? The Solicitor General's Not‐So‐“Special” Relationship: Archibald Cox and the 1963–1964 Reapportionment Cases

Forty-two years ago, the Warren Court decided the jurisprudential progeny of Baker v. Carr . ¹ Six cases, headed by Reynolds v. Sims , ² continued to remake the legal landscape of legislative apportionment using the "one person, one vote" principle. For President John F. Kennedy's Solicitor General, Archibald Cox, the Reynolds decisions were dangerous. He feared they would precipitate a constitutional crisis that would underscore why Justice Felix Frankfurter, his mentor, had urged his judicial colleagues to avoid entangling their institution in the "political thicket" of legislative apportionment.     

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     

Australia's decision to initiate Whaling in the Antarctic: winning the case versus resolving the dispute

On May 31, 2010, Australia instituted proceedings before the International Court of Justice in the case of Whaling in the Antarctic (Australia v. Japan). Although Australian politicians had for some time threatened such a course of action, the decision to proceed with international litigation took many observers by surprise, most basically because Japan appeared to be in a strong legal position and the risks associated with the case appeared greater than Australia's prospects for success. This article examines the background to the whaling dispute and suggests two ways in which litigation in the World Court may contribute to resolution of the dispute no matter the legal outcome of the case.     

Text and Tradition: Justice Scalia’s Consistent Application of His Original Public Meaning Approach to Separation of Powers

In this article, I argue that Scalia consistently and objectively applied his original public meaning approach to preserve separation of powers, ruling both for and against the legislative, executive, and judicial branches when the text and traditional understanding of the Constitution required it. I focus, in particular, on his opinions in Morrison v. Olson (1988), Printz v. United States (1997), Lujan v. Defenders of Wildlife (1992), and Plaut v. Spendthrift Farms (1995), in which he defended executive power and judicial power from congressional encroachments; NLRB v. Noel Canning (2014) and Zivotofsky v. Kerry (2015), in which he defended congressional power from executive overreach; Young v. United States ex rel. Vuitton (1987) and Hein v. Freedom from Religion Foundation (2007), in which he sought to rein in judicial power; and in Talk America v. Bell Telephone Company (2011) and Perez v. Mortgage Bankers Association (2015), in which he sought to reassert judicial power that the Supreme Court in general and he in particular had previously relinquished.     

The 'Haves' and the 'Have Nots': An Empirical Study of the Rational Actor and Party Capability Hypotheses in the High Court 1948–99

The High Court has always played an important political and social role. However, recent debate over implied rights in the Constitution has brought judicial power into focus, making it an important topic for assessment. One framework that has been used to test judicial power in Canadian, English and United States appeal courts is the notion of party capability theory. This paper analyses reported and unreported decisions of the High Court since 1948 in light of party capability theory. It attempts to identify what impact (if any) both the experience and resources of the litigants has had on which parties win and lose on appeal over an extended period. The main conclusion is that there is little evidence to support the thesis that stronger parties persistently come out ahead.     

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 Public Response to Controversial Supreme Court Decisions: The Insular Cases

In the Insular Cases, the Supreme Court established a new category of areas and persons coming under the sovereignty of the United States. Added to (1) the member states of the Union and (2) the existing territories (and states to be), was (3) territory "belonging to" the United States, but not a part of it. Justice Edward White proposed this doctrine—that territories were of two types, "incorporated" territories, those fit to be states, and non-incorporated territories, to be the property of the United States—in his concurring opinion in Downes v. Bidwell . ¹ Congress could govern these latter territories as it wished, subject to "fundamental" protections under the Constitution, those protecting individual liberties rather than those granting political participation.     

(Un)Doing Constitutionalism: The Cases of Liu Xiaobo and Xu Zhiyong

Based on the cases of Liu Xiaobo and Xu Zhiyong, this article reviews the Court judgments and discussions about the criminal charges of “inciting subversion of state power” and “disrupting public order” used against Liu Xiaobo and Xu Zhiyong respectively. Through a review of the discourses of Chinese legal scholars surrounding the two cases, we focus on the conflicting arguments regarding the Chinese Constitution and the Constitutional right to freedom of expression. This article concludes with an analysis of the political meaning of the two cases by revisiting the debate about the implementation of a Constitutional review and by reflecting upon the political contention between the government’s recent re-ideologisation of the Constitution and the growing calls of Chinese citizens who advocate Constitutionalism as a proxy for political reform.     

The Judicial Bookshelf

A persistent reality of constitutional government in the United States from practically the beginning of the Republic has been the close link between the Constitution itself and the Supreme Court. Oddly, this link derives more from the Constitution's impact on the American political system than from what the Constitution itself actually says or contains. True, Article III included cases “arising under this Constitution” in describing the proper reach of the federal judicial power, and Article VI specified that “[t]his Constitution and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made under the authority of the United States, shall be the supreme Law of the Land … ” ¹ But the document not only provided scant means for enforcing that supremacy, but also failed even to specify how this “supreme Law” should be interpreted. It soon became clear, however that the task of interpretation would fall upon the Supreme Court, as illustrated by Chisholm v. Georgia. ² In the face of assurances made by Alexander Hamilton, James Madison, John Marshall, and others during the ratification debates in 1787–1788 that a state could not, without its consent, be made a defendant in the federal courts by a citizen of another state, ³ the Justices in 1793 construed the language in Article III conferring the federal judicial power in suits “Between a State and Citizens of another State” to encompass a suit brought by a South Carolinian against the State of Georgia. The uproar that ensued prompted swift ratification of the Eleventh Amendment, which reversed the Court's first excursion into the realm of constitutional interpretation. Despite this rebuke, it was only a short time before Chief Justice Marshall insisted that the judicial power encompassed the authority “to say what the law is.” ⁴ Thus, from the assumed role of expounding of the Constitution evolved the companion duty of guarding it as well.     

Plessy versus Lochner: The Berea College Case

Legal scholars and historians have often claimed to find intellectual affinities between the U.S. Supreme Court's notorious opinions in Plessy v. Ferguson and Lochner v. New York. In Plessy, the Court upheld a law requiring private railroads to enforce segregation, while in Lochner the Court invalidated a maximum hours law for bakers. Bruce Ackerman asserts that Plessy had its intellectual roots "in the laissez-faire theories expressed one decade later in cases like Lochner." In support of his thesis, Ackerman relies onthe Plessy Court's statement that if the two races are to mingle, it must be "the result of natural affinities, a mutual appreciation of each other's merits and a voluntary consent of individuals." Brook Thomas also blames the Plessy ruling on laissez-faire ideology. He argues that laissez-faire theory led the Court to seek to encourage the "natural" forces of segregation.     

The Judicial Bookshelf

Decisions by the Supreme Court that are accorded "landmark" status are chiefly remembered for their holdings and effects. Such cases are also typically linked to a particular era of judicial history, as Marbury v. Madison ¹ was to the Marshall Court and Jefferson's presidency, as Youngstown Sheet & Tube Co. v. Sawyer ² was to the Vinson Court and Truman's presidency, and as Miranda v. Arizona ³ was to the Warren Court and the tumultuous 1960s. But probably only serious students of the Court will recall that Marbury was decided in 1803, Youngstown in 1952, and Miranda in 1966. And fewer still will know, without first consulting a reference, that Marbury came down on February 24, the Steel Seizure Case on June 2, and Miranda on June 13. Scholars typically associate decisions with years, not the day of the month.     

Legal Challenges to Presidential Policies on the Use of Military Force

A review of legal challenges to the use of military force, from the Vietnam War era to the Gulf War, demonstrates a judicial unwillingness to constrain presidential policymaking. In most of these cases, the judiciary has ruled the legal challenge nonjusticiable. In the first post-Cold War challenge , Dellums v. Bush, the United States District Court for the District of Columbia issued the equivalent of a declaratory judgment. Arguably, this is the only practical judicial response to the presidential use of force, but it does little more than redirect the policy conflict from the courts to Congress. The rule of law remains a weak reed in efforts to constrain presidential policymaking on the use of military force.     

Separation of Powers in Australia

This article argues that the nature and character of separation of powers in Australia has been fundamentally shaped and defined by the High Court, which chose a Blackstonian, common law conception of separation of judicial powers in preference to the principles elaborated in The Federalist and articulated in the American Constitution. But the Court's recent jurisprudence, including its admission that it makes the law, has presented unprecedented theoretical and political challenges to the concept of separation of judicial power in Australia, including a transformation in the role of the attorneygeneral, the creation of new institutions and a move towards an American conception of checks and balances. Thus this article suggests that the Court continues to exercise a profound influence on the formulation of separation of powers in Australia.     

The Judicial Bookshelf

Americans were reminded last January 20, as they are every four years, of the central moment at the Inauguration: the swearing in of the president. In this republican rite, the new or continuing chief executive publicly subordinates himself to the fundamental law of the land. As the Constitution dictates, "[b]efore he enters on the Execution of his Office, he shall take the following Oath or Affirmation: 'I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.'" ¹ Justices of the Supreme Court, other federal judges, legislators and officials, as well as state officeholders, likewise govern only upon making a similar pledge. "Senators and Representatives … , and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution." ² And for added emphasis, protection, and insurance, the Constitution crowns itself, national statutes, and treaties as "the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." ³ Parallel drama unfolds in other venues too. In the half century since all nominees to the Supreme Court have routinely appeared before the Senate Judiciary Committee, it would be difficult to find an example of a would-be Justice who, through one combination of words or another, did not promise senators that she or he would faithfully interpret and apply the Constitution.