A Clerk's View

One enduring challenge of being a law clerk for Justice Stevens was trying to prove, at least to yourself, that the Justice actually needed a clerk. He could do it all himself—and he frequently did. It wasn't just the fact that he drafted his own opinions, although that was definitely part of it. (What exactly do you say as a young, recent lawschool graduate when he gives you his polished and carefully conceived draft?“Good effort, Justice, I think you’re coming along nicely”?) And it wasn't just the fact that he would read the same mountain of briefs as you and then come up with an insight that nobody had seen and that irrevocably turned the case on its side for all concerned, including the lawyers and the other Justices.     

Tribute to Justice Souter

When the U.S. Supreme Court Justices took their seats at the beginning of the 2009 Term, the Bench looked different. Gone from the Bench, after nineteen years, was David H. Souter. He returned to his home in New Hampshire, a state he likes enormously. Justice Souter will be missed by his former colleagues and by advocates before the Court, by legal scholars nationwide and by all who follow the Court's work and activities.     

The Judicial Bookshelf

The death of Justice Byron R. White on April 15, 2002, occasioned numerous assessments, as had happened when he retired in 1993. From his perspective, he was the accidental jurist. "Well, I never wanted to be a judge," he confessed to a reporter in a rare interview in 1999. "I said to the president I would give it a try." White's "try" lasted thirty-one years, among the longest tenures of twentieth-century Justices. Yet many appraisals of White passed over a critical point: the Supreme Court in 1993 was a very different institution from the one he joined in 1962. This was true beyond the obvious changes in personnel. No one on the bench in 1962 was still sitting when White retired. In 1962, Ruth Bader Ginsburg, who succeeded him, was only four years out of Harvard Law School and was completing a year as a research associate at Columbia University Law School prior to joining the professorate at Rutgers in Newark.     

The Chief I Knew

Chief Justice William Hubbs Rehnquist died with his boots on. Those boots came each from his native Wisconsin and his adopted Arizona, and he loved them both. He worked until the end, but the enormous importance of his work did not detract from his other interests and talents, and it cannot begin to reflect his personality. This essay does not address his jurisprudence; rather, it is a collection of some personal memories that describe an admirable character whom I, and nearly everyone else, found to be most enjoyable company. Bill Rehnquist was one of the most thoughtful, considerate people I've ever known. He was a humble man with great good humor, and he was, to the very end, a man of surprises.     

Tribute to John Paul Stevens

Justice Stevens is supposed to be older than I am, but the evidence is mixed. I remember one morning back in June of 2009, for example, when he and I happened to get to work at just the same time. I was in a suit, but John was still in tennis shorts, after one of his four weekly singles matches at 7:00 a.m. (He usually arrived in civvies.) I asked him, how’d the game go. There was a little victory leap. “I really beat him.” John's a player.     

Reminiscences of the Solicitor General's Office

A few years ago Danielle Stern suggested to her grandfather that as the oldest member of the family, he ought to put down his memories of both the family and of his law practice. Stern did, and in it he describes various members of the family, and how he came to go to Harvard Law School, graduating in 1932 during the Great Depression. Although he had been an editor of the Harvard Law Review and graduated magna cum laude, the major New York firms passed him by because he was a Jew. He did manage to get a job with a small law firm at $25 a week, and about a year later went to Washington to join the New Deal. We are pleased to present that part of Mr. Stern s memoirs that deals with his years in the Justice Department and then in the Solicitor General s office.     

Machiavelli’s passions

In his years as Florentine Secretary, Machiavelli repeatedly faced the problem of interpreting the gestures and words of statesmen that were masters of deception. The strategy he developed to uncover these statesmen’s intentions was based on the analysis of human passions, on uncovering the fundamental trait that defined a man’s character. I apply Machiavelli’s strategy of interpretation to Machiavelli himself and uncover the irreconcilable disconnect which shaped his personal tragedy. On one hand, he related to his objects of desire by entirely abandoning himself to them, regardless of how unachievable they were. On the other, to obtain these objects of desire his analytical mind developed strategies which took pride in their adherence to what he called the “effectual truth of the matter.” His incapacity to reconsider his objectives in light of the means at his disposal and his tendency to transfer all of himself into his objectives determined Machiavelli’s successes and failures. He repeatedly failed when he had to set his own goals, or when he approached a problem with empathy. He succeeded when he was given precise and limited objectives and when he understood that he did not share the goals of those he was studying.     

Thomas Jefferson and John Marshall: What Kind of Constitution Shall We Have?

Although they were third cousins once removed—both descended from William Randolph of Turkey Island, one of the first settlers in Virginia—John Marshall and Thomas Jefferson had little familial affection for one another. During the disputed contest of 1800, the future Chief Justice felt "almost insuperable objection" to the man who eventually become the third President, declaring him "totally unfit for the chief magistracy of a nation which cannot indulge these prejudices without sustaining deep personal injury." ¹ For his part, Jefferson reciprocated, and his cousin became the embodiment of all he despised in the judiciary. He wrote of Marshall as a man of "lax lounging manners … and a profound hypocrisy." 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.     

"The Defendant Has Seemed to Live a Charmed Life": Hopt v. Utah: Territorial Justice, The Supreme Court of the United States, and Late Nineteenth-Century Death Penalty Jurisprudence

On March 7, 1887, the Supreme Court of the United States decided Fred Hopt's fourth appeal to that Court. The Utah Territory murderer's conviction had been reversed three times over seven years-his "charmed life"-but this time both his luck and his legal argument had run out: his fourth conviction was upheld. Justice Stephen J. Field dismissed Hopt's four major claims: that several members of the jury were improperly seated in spite of bias; that a doctor's evidence of cause of death was beyond the scope of his expertise; that the trial judge's "reasonable doubt" jury instruction was inadequate; and that the prosecutor's reference to the "many times the case had been before the courts" was prejudicial. Five months later, on August 11, Hopt was executed by a firing squad in the yard of the Utah Penitentiary. Hopt was only one of over two thousand convicted criminals, mostly murderers, who were legally executed in the United States in the two decades between 1880 and 1900. However, his defense team of court-appointed Salt Lake City lawyers had kept him alive for seven years. During that time he had four jury trials, four appeals to the Supreme Court of Utah Territory, and four appeals to the Supreme Court of the United States. He is the only death penalty litigant ever to be the subject of four full opinions of the Supreme Court of the United States.     

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     

J.S. Marais,a great South African historian: a personal re-assessment

This article is a personal assessment aimed to establish J.S. Marais’s legacy. It is written in the light of the insights I gained as I interacted with him as an undergraduate and honours student (starting in 1949), as a research student, and finally as a departmental colleague over a period of ten years or so. It begins with my experience of his teaching. He was a poor lecturer, especially to large classes. This improved with smaller classes. He came into his own in the honours year. He was a specialist in South African history as a case study in the colonial era, from the seventeenth to the nineteenth century. Marais was excellent as a supervisor of postgraduate research from honours to doctoral level, empathetic and patient in handling his students’ needs. A further feature of his honours teaching was his development of a course in historical method and philosophy of history. Next, the article covers Marais’s preparation for an academic career, first at UCT and then at Oxford, leading in both cases to BA and honours degrees. Then his studies culminated in his doctoral thesis on the colonisation of New Zealand. This enabled him by 1927 to become a lecturer at UCT, a post he held until he moved to Wits as a senior lecturer in 1937. Marais’s high reputation rested mainly on his books. The article continues with an assessment of each of these, including their reception by his colleagues. The article ends with an appraisal of Marais’s qualities. Poor as an administrator, he was outstanding as a head of department at the intellectual level and also as a leader of the joint campaign of the University of the Witwatersrand (Wits) and UCT against the imposition of apartheid on the universities.     

Courtroom to Classroom: Justice Harlan's Lectures at George Washington University Law School

John Marshall Harlan had a singularly successful legal career as an Associate Justice of the Supreme Court that spanned thirty-three years, from 1877 to 1911, one of the longest terms in history. For twenty-one of those years on the Court he also distinguished himself as a professor of constitutional law at George Washington University. Along with his colleague on the Bench and on the faculty, Associate Justice David J. Brewer, Harlan carried a full course load, teaching just about every subject: evidence, torts, property law, corporation law, commercial law, international law, and his specialty, constitutional law.     

William Temple: Christianity and the Life of Fellowship

Abstract

William Temple is best known for his contribution to the forging of a social consensus that resulted in the foundation of the post-war British welfare state following his untimely death in 1944 after only two years as Archbishop of Canterbury. Widely regarded as the most theologically gifted holder of that office since Anselm, his pioneering contribution to the elucidation of a methodology for Christian social ethics which emphasized the role of ‘Principles’ that should inform Christian social action and reflection reinvigorated the Church of his generation in the task of bringing to bear the Christian message on social problems. What is less well appreciated is how he was not only the spokesperson for the most advanced Christian witness in the inter-war years, but that he also provided a basis for Christian ethics that brought together the strengths of the Anglican incarnational theology stemming from F. D. Maurice with the British tradition of philosophical social idealism. Often moving from the circumference to the centre, he sought to relate philosophical questions and insights to the richness of the revelation of God in the person of Jesus Christ. He was as at home in this task as he was in leading a mission on a Blackpool beach and the British public loved him for it. He was, as Winston Churchill said at the time of his elevation to Canterbury, "the half-crown article in a penny bazaar."     

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.     

Newman and his Audiences: 1825–1845

This article examines Newman's communication with others in a variety of modes. It suggests there was a deliberate underlying theme of preaching in whatever he did, not only from the pulpit, where his skills were famous, but in virtually all his other forms of discourse, from letter-writing to his setting up of the "retreat" at Littlemore. He used whatever means were available, including marketing and journalism as well as scholarly work, to bring a concept of public witness to his mission. His social life, as evidenced in his generally scrupulously kept appointments diaries, is analysed to demonstrate that it too was part of his holistic approach. The suggestion is that Newman was much more aggressive and publicly aware than is generally recognized and that he combined an intense personal internalizing with active public performance in a wide range of spheres.     

“Spreading the Wealth”: Justice Tom C. Clark's Wide‐ranging Efforts to Open the Doors of the Law Clerk Ranks

Associate Justice Tom C. Clark retired from the Supreme Court at the conclusion of its 1966 term to avoid even the appearance of impropriety when his son, Ramsey, became the U.S. Attorney General. “I believe it would be best for me to retire,” Clark wrote one well‐wisher, “Litigants have enough problems without having a father‐son psychology to face. And while there is no actual conflict the potential is there and the appearance of justice is as important and effective as the real thing.” ¹ Clark had served on the Court eighteen years, and he began his retirement with a three‐month, state‐sponsored goodwill trip around the world, which was cut short when he contracted hepatitis in Thailand.     

Between Galen, Geddes, and the Gael: Arthur Brock, modernity, and medical humanism in early-twentieth-century Scotland

Arthur Brock (1879-1947) is generally remembered as the physician who treated poet Wilfred Owen for shell shock and as the translator of Galen and other ancient physicians. He was also a key figure in the early-twentieth-century humanist revival within medicine. Brock's interest in humanism, I argue, was inspired by a broader concern about modernity and by a desire to return medicine and society to the more harmonious, organic existence that he believed was characteristic of ancient Greece and could still be found among "primitive" peoples, such as the Scottish Gaels. This article explores Brock's anxieties about modernity and its relations to his interests in ancient and "primitive" peoples; to his medical thought and practice; to his interests in history, sociology, language, and translation; and to his involvement in the social and political life of Edinburgh and North Queensferry, where he moved in 1925. Crucially, it shows how all these interests and activities were influenced by Brock's mentor, Edinburgh polymath Patrick Geddes. The article concludes with a discussion of Brock's place in early-twentieth-century medical humanism.     

William O. Douglas Remembered: A Collective Memory by WOD's Law Clerks

William O. Douglas (WOD), who was the longest-serving Justice on the U.S. Supreme Court, was an Associate Justice from April 17, 1939 to November 19, 1975, and thereafter was a retired Justice until his death on January 19, 1980. During this period he employed fifty-four law clerks, one for each Term of the Court except for the 1950, 1967, and 1970 Terms, when he employed two clerks, and starting in the 1971 Term, when he had three clerks until his retirement. Forty-one of his law clerks are still alive, including his first law clerk, David Ginsburg, who at the age of 95 remains mentally and physically active and only recently “retired” from his law practice.