Justice Sandra Day O'Connor: The Framers' "First Woman"

Sandra Day O'Connor's appointment to the Supreme Court was a historic stride in American women's slow but determined march towards full equality. At our nation's birth, Abigail Adams urged her husband and other members of the Continental Congress to "Remember the Ladies" in their new government. ¹ "We know better than to repeal our Masculine systems," John Adams replied only half jokingly. ² More than two centuries would pass before a woman donned Supreme Court robes to help interpret the United States Constitution.     

Textual Corruption in the Civil Rights Cases

The Civil Rights Cases ¹ do not quite rival Plessy v. Ferguson ² for notoriety as the decision that most clearly confirmed the failure of Reconstruction and the rise of Jim Crow. Yet the Civil Rights Cases did far more than Plessy to limit federal power to address the continuing consequences of slavery. They declared unconstitutional the Civil Rights Act of 1875 insofar as it prohibited discrimination in public accommodations operated by private parties. Congress passed that act under its powers to enforce the Thirteenth and Fourteenth Amendments, but the Court held the act unconstitutional on the ground that private discrimination was neither a badge or incident of slavery under the Thirteenth Amendment nor a manifestation of state action under the Fourteenth. Although the Court's holding under the Thirteenth Amendment was effectively overruled by the Warren Court, ³ its holding under the Fourteenth Amendment continues to be influential, supporting a decision of the Rehnquist Court striking down the Violence Against Women Act. ⁴     

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.     

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     

Thomas Jefferson and the American Indian Nations: Native American Sovereignty and the Marshall Court

The Cherokee Removal Cases — Cherokee Nation v. Georgia ¹ and Worcester v. Georgia ² —stand as the dramatic last act of the Marshall Court era. Thomas Jefferson was long dead by the time of the removal of the American Indians from the land north and south of the Ohio River. Yet in many ways the Cherokee Removal Cases that bedeviled Marshall in his final years on the Court were Jefferson's revenge, the first bitter fruits of policies adopted during his presidency that created the political and legal environment for the Indian Removal Act of 1830 and the Cherokee Nation litigation itself. This Jeffersonian legacy is ironic, given that Jefferson as a scholar, diplomat, and Secretary of State was an ardent supporter of Indian sovereignty and eventual citizenship. Yet these views were subordinated during his presidency to concerns of what we would term "national security," to preserve the Union, and to advance the interests and needs of his political party.     

(Re)introducing Wiley Rutledge

With the rarest of exceptions, when Supreme Court Justices leave the Court, they are soon all but forgotten. ¹ Constitutional law is unrelentingly presentist, so closely intertwined with politics and society that sitting (or recently departed) Justices necessarily speak to the issues more directly than those from another era. If that were not enough, being forgotten is virtually inevitable for those whose careers are short. One of those men was Wiley Rutledge who served from February 1943 until his death at age 55 from a cerebral hemorrhage, six and a half years later. Until John M. Ferren's recently published and marvelously researched Salt of the Earth, Conscience of the Court , ² Rutledge even lacked a true biography. ³ That has been a shame, because the two dominant themes of Ferren's book show that Rutledge is worth knowing: He was a good man and a good judge. Indeed, on what probably was the most fractious Court in American history, ⁴ Rutledge was the sole member both personally liked and intellectually respected by every other member. ⁵     

Contesting Commerce: Gibbons v. Ogden, Steam Power, and Social Change

The U.S. Supreme Court case Gibbons v. Ogden (1824) ¹ represents one of the most significant yet least understood cases in the history of American jurisprudence. Most accounts depict the case as a constitutional showdown between former New Jersey Governor Aaron Ogden and his estranged business partner, a Georgian businessman and planter named Thomas Gibbons. Ogden charged Gibbons with operating a steamboat on the Hudson River in violation of the Fulton–Livingston Steamboat monopoly that controlled steam travel in the state of New York. In March 1824, Chief Justice John Marshall ruled for the Supreme Court that Gibbons' federal coasting license trumped a state grant issued to Ogden by the Fulton–Livingston syndicate. ²     

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     

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.     

The Crédit Mobilier Scandal and the Supreme Court: Corporate Power, Corporate Person, and Government Control in the Mid-nineteenth Century

In 1867, Francis Train, a powerful director of the Union Pacific Railroad, devised a surefire way to make some money. Train established a trust company, Crédit Mobilier of America, which was completely owned by a small group of directors of the Union Pacific. The group soon became known as the Pacific Railroad Ring. Because they controlled the board of directors of the Union Pacific, the ring was able to award building contracts to Crédit Mobilier, giving wildly favorable terms and paying exorbitant prices for the work. They used this scheme to siphon money out of the Union Pacific and into the coffers of their own company. In actuality, the primary function of the Crédit Mobilier Company was to shift money—money that came from the U.S. Treasury and the pockets of the Union Pacific's minor shareholders. As railroad reformer Charles Frances Adams Jr. put it, "They receive money into one hand as a corporation, and pay it out into the other as a contractor." The profit they kept for themselves. ¹     

FDR, Lewis Douglas, and the, Raw Deal

"Despite my emotions, I could not refuse the responsibility which has been offered; for in times like these, even more so than in times of war, individuals cease to be significant. Only the common welfare is important," explained Lewis Douglas in 1933 as he accepted President-elect Franklin Delano Roosevelt's offer of the position of director of the budget.¹ Douglas came to his post with a strong sense of obligation—he was certain the United States was in a "critical condition," and the only solution to the devastating depression lay in balancing the budget.² Roosevelt seemingly agreed with Douglas. Newspapers reported that the young budget director would "make his mark in the Roosevelt administration" and "be at the heart of things." Journalists argued that Roosevelt's appointment was an "indication that Roosevelt means business in his promise to reduce government costs."³     

History Declassified: The Perils and Promise of CIA Documents

After a grueling confirmation hearing in late 1991, Robert Gates, the director of central intelligence, convened a CIA Task Force on Openness. It recommended that the agency begin to declassify documents that had previously been withheld from the public.¹ Within the CIA, a Historical Review Board was instructed to "make significant historical information available to the public without damage to the national security interests of the United States."² In the fall of 1992, with great fanfare, the CIA released the first batch of the promised intelligence material–112 documents on the Cuban missile crisis. In the fall of 1993 many of the intelligence estimates on the former Soviet Union were declassified, and thousands of pages of material on the JFK assassination were sent to the National Archives in the wake of public pressure for disclosure generated by Oliver Stone's film JFK.     

Supreme Court Activism in Economic Policy in the Waning Days of the New Deal: Interpreting the Fair Labor Standards Act, 1941–1946

Students of the Supreme Court universally agree that it made a dramatic shift in 1937. First, in West Coast Hotel Company v. Parrish, ¹ it retreated from the unbridled use of the Fourteenth Amendment's Due Process Clause to invalidate state economic regulatory legislation. Then, in National Labor Relations Board v. Jones and Laughlin Steel Corporation , ² the Justices widened the reach of congressional power under the Commerce Clause. This looser reading of the Commerce Clause was solidified in 1941 with United States v. Darby Lumber Company ³ and Wickard v. Filburn. ⁴ So decisive were these cases in dividing what went before from what came afterward that Bernard Schwartz has said, "The 1937 reversal marked the accession of what may be considered the second Hughes Court—so different was its jurisprudence from that of the Hughes Court that had preceded it." ⁵ Whereas the defining jurisprudence of the former had been close supervision of economic policy, the latter refused to second guess the economic wisdom of congressional (and state) regulatory initiatives. Alpheus T. Mason summarized Justice Harlan Fisk Stone's approach, which was indicative of the entire Court of this era, as one that would not say that "no economic legislation would ever violate constitutional restraints, [but that] … in this area the court's role would be strictly confined." ⁶ Confirming this approach, between 1937 and 1957 the Supreme Court struck down only four federal statutes as unconstitutional, none of which were economic in nature. ⁷     

Get Your Tongue out of My Mouth 'Cause I'm Kissin' You Goodbye: The Politics of Ideas

The seminal work of Derthick and Quirk (1985 ) argues that public policy changes when the intellectual debate of ideas establishes that policy options are legitimate and current policies are ineffective. ¹ Overlooked in their otherwise exceptional analysis is the role that country music plays in the politics of ideas. ² The thesis of this article is that country music is a crucial part of the politics of ideas, and, in fact, many policy debates are resolved in country music well before the intellectual community of policy analysts reaches a consensus. This article will recap some of the key policy debates in which country music set the agenda, ³ established the key policy alternatives, or resolved the policy debate and permitted the adoption of public policy ( Anderson, 1994 ). ⁴     

STRUCTURAL DIMENSIONS IN THE GEOGRAPHY OF LOCATIONAL CONFLICTS

L ocational c onflict is a frequent by-product of efforts to change the physical structure of man-made environments. Within the geography discipline, theoretical and empirical interests in the conflict basis of public and private decisions on the use of land were stimulated in the early 1970s by the work of Julian Wolpert and his associates.¹ The resolution of conflicts over the locations of specific activities is seen as an important means of allocating benefits among locations² and has led to considerable variations in the distribution of necessary services and amenities among residents of the city.³ Indeed, irrespective of overt evidences of conflict occurrence, David Harvey has characterized the land-use pattern itself as an important indicator of the socio-political rules which direct urban development.⁴     

Writing the First Draft of History: Anthony Lewis as Supreme Court Correspondent

The legendary Washington Bureau Chief and columnist of The New York Times , James Reston, with a push from Felix Frankfurter, decided that the paper of record would have its own correspondent specializing in the Supreme Court. ¹ With his eye for excellent young talent, ² Reston chose Anthony Lewis, already a Pulitzer-Prize winner before his thirtieth birthday, ³ and sent him to Harvard for the 1956–57 academic year as a Nieman Fellow to study law.     

Terrorism and Habeas Corpus: A Jurisdictional Escape

Following the events of September 11, Congress authorized the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks … or harbored such organizations or persons." ¹ Considering this surprising grant of authority, a question naturally surfaces as to whether a person whom the President has determined to have planned, authorized, committed or aided the attacks has an absolute right to challenge this determination in a judicial forum through habeas corpus proceedings, regardless of issues such as nationality, venue, next-friend standing for those held incommunicado, and jurisdictional barriers based on the place of imprisonment.     

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     

The distribution and morphometry of lakes and reservoirs in British Columbia: a provincial inventory

An inventory of provincial lakes and reservoirs has been developed to characterise and assess the distribution and morphometry of standing water bodies in British Columbia. In the province, there are over 241,500 lakes and reservoirs greater than 1,000 m ² in size. These water bodies cover 2.37 percent of the province area and contain an estimated 521 km ³ of water (312 km ³ in natural lakes and 209 km ³ in reservoirs). A hypsometric relation suitable for order-of-magnitude estimates of lake volume from lake area is presented. Based on the distribution and morphometric attributes of lakes, several distinctive limnologic regions were identified, including the northeastern Alberta Plateau (highest proportion of circular lakes), the southwestern Alberta Plateau (lowest lake density/coverage and highest proportion of irregularly shaped lakes) and the Milbanke Strandflat (highest density of lakes). Observed regional and scale-related patterns in lake distribution/morphometry appear to be largely related to geomorphic controls, particularly tectonic and glacial history. Large-scale hydrologic implications of these standing water bodies and potential ecosystem/water resource management applications of the provincial inventory are also discussed.     

NASA and the Decision to Build the Space Shuttle, 1969–72

T he technological prowess of the U nited S tates was symbolized by what became known as the space shuttle, which the National Aeronautics and Space Administration (NASA) began to work on in the late 1960s. With the shuttle program NASA planned to facilitate its aggressive space-exploration effort by providing low-cost, reusable transportation to and from Earth's orbit. NASA officials compared the space program's traditional use of expendable launch vehicles to throwing away a railroad locomotive after every train trip, whereas a reusable shuttle would offer cost-effective, routine access to space. Approval of the shuttle initiative required complex political maneuvering by NASA and its supporters between 1969 and 1972. The twists and turns in the approval process actually shaped the final direction that the shuttle program took, demonstrating the pitfalls of decision making by compromise and the challenges of managing large-scale technology programs within the federal government.¹