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.     

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.     

The Judicial Bookshelf

Change at the Supreme Court may be most visible and frequent in the progression of statutory and constitutional questions the Justices resolve collectively, but it may also be equally highlighted by an individual Justice's decision. This reality became plainly apparent in a letter that Justice John Paul Stevens sent to the White House on April 9, 2010, just eleven days shy of his 90^th birthday: “My dear Mr. President: Having concluded that it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court's next Term, I shall retire from regular active service as an Associate Justice … effective the next day after the Court rises for the summer recess this year.” ¹ His statement was dated almost a year after Justice David Souter dispatched a similar notice to President Obama on May 1, 2009, announcing his intention to leave the Bench. Thus, for the fifth time in as many years, the machinery of executive nomination and senatorial advice and consent for the High Court churned again.     

The "Lone Dissenter"

The tenure of Associate Justice—and later Chief Justice—William H. Rehnquist on the Supreme Court spanned more than three decades. Despite his public importance, he was a quite private man. During his time on the Court, relatively few accounts appeared of what life was like inside the Rehnquist chambers, especially during his years as an Associate Justice. In the aftermath of his death last fall, former clerks have begun to reminisce about what it was like to clerk for him.     

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     

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 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.     

The Judicial Bookshelf

Standard nomenclature in Supreme Court literature contrasts the "old Court" and the "new Court" (or, sometimes, the "modern Court"). By most accounts, the dividing line between the two falls during the years 1937–1940, when the nation witnessed a judicial and constitutional revolution. The proverbial "irresistible force" (in the form of President Franklin Roosevelt's New Deal program to cope with the Great Depression) met the "immovable object" (in the guise of the Supreme Court under the leadership of Chief Justice Charles Evans Hughes that, for a short time, stymied many of the President's initiatives). The result was Roosevelt's audacious assault on the Court through the Court-packing plan and the hasty change of mind by Hughes and Justice Owen J. Roberts that gave Roosevelt the five sure votes he needed so that his agenda could receive the constitutional stamp of approval. This flip-flop was promptly followed by the Court's adoption of a new agenda for itself, one that elevated civil liberties into a preferred position in the hierarchy of constitutional values and demoted property interests, which heretofore had been accorded heightened judicial protection.     

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 Judicial and Ancient Game: James Wilson,John Marshall Harlan,and the Beginnings of Golf at the Supreme Court

Golf has a long history at the Supreme Court simply as an entertaining pastime for some of its members. Yet the Justices' interest in the sport can also be viewed as a reflection of the evolving work and culture of the institution and of the nation it serves. This article revisits a few early developments involving the first golfer on the Court (Justice James Wilson), the first golf enthusiast (the first Justice John Marshall Harlan), and the first golfing majority (October Term 1906).     

“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.     

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     

Antonin Scalia and the Dilemma of Constitutional Originalism

Antonin Scalia has had a very significant and healthy impact on the way people talk about American constitutional law. Thanks largely to Justice Scalia’s forceful and eloquent voice, originalism is now so respectable that even those who seek to advance an aggressive and progressive “living constitution” frequently find it prudent to pose as expositors of the Constitution’s original meaning. Scalia’s substantial effect on the terms of debate in constitutional law, however, is not likely to be matched by a comparable influence on the future of the law itself. Apart from political realities that affect appointments to the Court, originalism faces obstacles that have deep historical roots. This essay explores those obstacles before considering two examples that suggest why Scalia’s originalism is unlikely to make a decisive contribution to the reformation in constitutional law that he sought.     

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 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.     

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.     

The Clerk, the Thief, His Life as a Baker: Ashton Embry and the Supreme Court Leak Scandal

On December 16, 1919, Ashton Fox Embry, law clerk to Supreme Court Justice Joseph McKenna, abruptly resigned from the position he had held for almost nine years. His explanation? His fledgling bakery business required his undivided attention. Newspapers that morning hinted at a different reason: Embry resigned because he had conspired with at least three individuals to use inside knowledge of upcoming U.S. Supreme Court decisions to profit on Wall Street.2 A grand jury returned an indictment against Embry and his associates a few months later, and Embry’s argument that he had committed no crime ultimately reached the Supreme Court, the very institution he was accused of betraying. Despite the sensational headlines and fierce legal battle arising from his indictment, the United States Attorney quietly dismissed Embry’s case in 1929, almost ten years after the story had broken. Few Court scholars have ever heard of Embry, and the memory of Embry, much like the case against him, has disappeared with time.3 This article unravels the “Supreme Court Leak Case” by reconstructing what happened almost eighty years ago.     

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.     

Justice Harlan's “Great Betrayal”? A Reconsideration of Cumming v. Richmond County Board of Education

In 1899 the Supreme Court of the United States decided the case of Joseph W. Cumming, James S. Harper, and John C. Ladeveze v. The County Board of Education of Richmond County, State of Georgia. The litigation arose after the all-white Richmond County School Board closed Ware High School, a segregated, tax-supported, all-black high school in the City of Augusta, GA. The plaintiffs did not seek integration of the Augusta Public Schools. They did not lodge a complaint regarding the separation by race of children in the primary grades. They did not attempt to compel the board to provide a high school for blacks. Their demand was for injunctive relief that would force the closing of the white high school through the withholding of tax support until the black high school was reopened. This approach succeeded in the trial court but failed in the Georgia Supreme Court. In an opinion written by Justice John Marshall Harlan, the Justice who had just three years before asserted that the constitution was color-blind, the Supreme Court of the United States sustained the ruling of the Georgia Supreme Court denying the request for injunctive relief. Ware High School was not reopened.     

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