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     

Public Diplomacy in the U.S. Supreme Court: The Warren Years—Part I

The Prime Minister of the Republic of India, Jawaharlal Nehru, and his daughter, Mrs. Indira Gandhi, wandered down the hallway adorned with portraits of Justices in the U.S. Supreme Court building before entering the East Conference Room. There, they were warmly greeted by Chief Justice Earl Warren and his wife, Nina, who had been the Prime Minister's guests in New Delhi only four months earlier. In Washington, Nehru was the special guest of the Warrens, the first ruling head of state to be honored with a formal dinner at the Supreme Court. In attendance were a small but powerful delegation of Indian diplomats and most of the Justices and their wives. In the crisp evening of December 16, 1956, the temperature had dropped to 39 degrees, and the Prime Minister wore a black achkan, the South Asian coat that Americans came to call “a Nehru jacket,” adorned with his trademark red rose in the breast pocket and a white Congress cap. The Indian ladies dressed in striking saris, while the Western women wore long formal gowns.     

Supreme Court Declinations

Recently the nation has been awash in matters relating to the complex and sometimes mysterious processes governing the nomination and confirmation of Justices of the Supreme Court of the United States. But as our history abundantly shows, by no means every person offered a seat on the Court has decided to accept it.     

The History of the Per Curiam Opinion: Consensus and Individual Expression on the Supreme Court

Readers of Supreme Court opinions have become so accustomed in recent years to the multiple concurrences and dissents that accompany important opinions that it is difficult to recall that this is a relatively recent phenomenon. It is only in the past century that the Court's traditional balance of the institutional and the personal has shifted from an insistence on presenting what Learned Hand termed "monolithic solidarity" to the world. That insistence began with Chief Justice Marshall's determination that the Court should resolve its cases, not seriatim, with each Justice writing separately, but instead in a single, unified opinion. The resulting culture of the Court, one that discouraged both dissenting and concurring opinions as assaults on this unified front, persisted from Marshall's day into the 1930s.3 The Court in the nineteenth and early twentieth centuries thus deliberately submerged the idea of a personal voice in the fiction of a collective voice, one that spoke for the institution rather than for the Justice who served as its designated scribe.     

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.     

(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     

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.     

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 Buddha and the Bumblebee: The Saga of Stanley Reed and Felix Frankfurter

During the years since the first appointments of Justices to the Supreme Court in 1789, many interesting relationships have occurred between Justices. Some were amicable, but others involved animosity. No such long-Term relationship is more fascinating than the eighteen years Stanley Reed and Felix Frankfurter spent as Brethren. It featured neither consistent amicability nor animosity, but it is intriguing because it ran the gamut from admiration and respect through pettiness and condescension to frustration and serious annoyance. Nevertheless, Reed and Frankfurter probably were closer for a longer period than virtually any other two Associate Justices in the history of the Court. Moreover, the hundreds of letters, notes, and memoranda they exchanged must dwarf the output of any other two Justices.     

Myths of ancestry

This article examines the national significance of fifth‐century BC Greek sculpture and especially the so‐called Elgin Marbles. It examines the significance of these archaeological remains not for the Greek nation but for the British, and specifically the English, nation during the nineteenth century. The national significance of fifth‐century BC Greek art lies in its incorporation into nineteenth‐century debates concerning the identity of the English nation. At a time when physical appearance or race was accepted as an important and, indeed, determining component of the ‘self’ and a measure of collective belonging, Greek sculpture, which was primarily figural in its subject‐matter, came to be seen as an image of the English ‘self’. The belief in the Greek identity of the English caused a Greek revival in English life and art. In life, this revival took the form of care for the body and the imitation of the athletic practices of Greek youth through the practice of sport in English school and university education. It was thus that nineteenth‐century English youth turned itself into a work of art.     

Nationalism studies between methodological nationalism and orientalism: an alternative approach illustrated with the case of El Greco in Toledo,Spain

Methodological nationalism is still dominant in nationalism studies. When studying the construction of national identities, scholars generally limit their study to the borders of one nation‐state, while only paying attention to members of that particular nation. Implicitly, foreign actors and influences are left out of the picture. I will challenge this methodological nationalism with a case study, which demonstrates that the place of Toledo within the Spanish national imagination, and more particularly that of El Greco, the most important representative of the city's artistic heritage, was largely determined by foreigners. During the nineteenth century, El Greco was rediscovered primarily by foreign scholars and artists. Moreover, it would be the rise of international tourism in the early twentieth century that convinced Toledans to adopt El Greco as the city's main artistic icon. This case, thus, clearly shows that in nationalism studies methodological nationalism can be avoided by also including foreign actors.     

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.     

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.     

Many Voices,One Court: The Origin and Role of Dissent in the Supreme Court

E pluribus unum—out of many, one—is the phrase emblazoned on the Seal of the United States, which refers to the notion that a single American voice emerges from the many diverse groups that constitute the nation. The legislative and executive branches of government often act as one voice through legislative bills and executive acts, aggregating diverse interests that reflect the national will. The notion of e pluribus unum, however, is not often applied to the judiciary, a branch of government the members of which are viewed, not as outlets for the will of the people, but as gatekeepers of the rule of law. But while the Supreme Court may not speak directly for the people, its opinions speak to the people, and the methods used by the Justices to express those opinions have revealed changes in the conception of the Court's voice throughout history.     

The “Good Old #3 Club” Gets a New Member

It has been said that serving on the U.S. Supreme Court is like being a member of an exclusive club. Yet within this club, there are even more exclusive clubs that only a small number of Justices are permitted to join. These shadowy associations are unseen by the public, receive no publicity, and are not even known to the Justices who are excluded. The existence of these secretive organizations has recently been revealed through the release of Justice Harry Blackmun's papers at the Library of Congress. This article is the first serious attempt to research the existence, membership, and practices of these clandestine alliances. Ultimately, as with many High Court practices, these newly uncovered connections may be in need of reform, and I offer a number of solutions to define membership criteria and improve their functioning.     

Supreme Court Advocacy in the Early Nineteenth Century

The early nineteenth century was transformative of the Supreme Court's practices. Yet understanding those fundamental changes requires some appreciation of practice before the Court in the late eighteenth century, and the developments in the early nineteenth century produced changes in the Court's practices that are still felt today. In this first half-century or so of the Court's existence, more dramatic developments and changes occurred in oral argument practice than in any other period of the Court's history. ¹     

Oversimplifying the Supreme Court

I cannot tell you what a pleasure it is to be at the Supreme Court Historical Society. Of course, the Supreme Court is fortunate to have a Chief Justice who is also Chief Historian. I have read each of Chief Justice Rehnquist's books on the Court, and they are engagingly written narratives filled with a love and knowledge of this institution. The Chief Justice is steeped in the folklore of this remarkable Court as few have ever been. This is just one reason those of us throughout the federal judiciary admire and love the Chief. He has shown kindness to me ever since I was a young law clerk for Justice Lewis Powell. I don't know if it's appropriate or not to dedicate a speech, but I am going to do so anyway. This speech is for him.     

‘Supplicant Nationalism’ in Slovakia and Wales: Polyethnic Rights During the Nineteenth Century

During the nineteenth century, nationalists in Wales and Slovakia attempted to promote national goals by attempting to persuade English and Hungarian leaders to freely grant collective rights to the ‘subordinate’ nation. This strategy of ‘supplicant’ nationalism included effusive declarations of loyalty to the common state, exaggerated claims to moral superiority, and flattering comments about the ‘dominant’ nation. Supplicant nationalism closely resembles what Will Kymlicka called the struggle for ‘polyethnic rights’, but can still be seen as a form of nationalism.     

The geography and natural resources of Bolivia

This paper tries to show the main thread of Scottish national identity in the nineteenth century and how Scotland's close connection with the empire did not asuage Scottish desires to retain a national identity. The paper tries to illustrate that the interpretation of the union connection by the Scottish political classes was central to the understanding of Scotland as a nation during the period. Examples are also provided of the way in which the union could be questioned in this century, but this was with the caveat that this would necessarily be limited; for such was the extent to which national identity was played out on an imperial stage. Although Scots never lost sight of their distinctiveness, any extension of the critique of union would have ultimately worked against their ability to confidently display their identity as they did quite successfully in the nineteenth century.     

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.