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 Development of the Supreme Court Practice of Calling for the Views of the Solicitor General

"When the Supreme Court invites you, that's the equivalent of a royal command. An invitation from the Supreme Court just can't be rejected." ¹ The guest most frequently invited to the Supreme Court is the Solicitor General. Even before the practice of the Supreme Court calling for the views of the Solicitor General process developed, the Court occasionally invited the Solicitor General to participate as amicus in important cases by submitting a brief and/or participating in oral arguments before the Court. ² As then–Solicitor General Simon E. Sobeloff remarked to then–Attorney General Herbert Brownell in a 1954 letter about the landmark school desegregation cases, "The Supreme Court has expressly extended an invitation to the United States to participate in the reargument. While this by no means compels participation, such an invitation is not to be lightly declined." ³     

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     

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     

Pioneer Life on the Bay of Quinte: an Evaluation of Genealogical Source Data in the Study of Migration

The movement of people, goods, and ideas into new frontiers is one of the most important and prevalent themes in Canadian historiography.¹ For all that emphasis, however, the literature on the historical demography of the Canadian frontier does little to address the dynamics of frontier migration at the family level or to draw out the contributions of successive generations of pioneer families to the movement of the frontier itself. The difficulty of obtaining data is an obvious explanation, although a few recent studies have shown the usefulness of such sources as church registers, newspapers, residence histories, and naturalization records.² The purpose of the present essay is to draw further attention to the value of this approach by focusing on a specific Ontario example - a volume entitled Pioneer Life on the Bay of Quinte. ³ This book was published in 1904 and it contains data which permit the nineteenth-century migrations of some Bay of Quinte families and their descendants to be traced.     

(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     

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.     

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     

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 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.     

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 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.     

A Foot in Each Sphere: Christine Frederick and Early Twentieth-Century Advertising

The American advertiser has taught the American housewife to think constructively of her job.¹
Christine Frederick, 1929
As we enter the twenty-first century, Martha Stewart's web page proclaims her multi-million-dollar company, Martha Stewart Living Omnimedia, to be a "leading creator of original'how to'content and related products for homemakers and other consumers."² Over the last 20 years, Stewart's enterprise, which targets primarily women consumers, has grown from a television show to an empire that includes books, magazines, radio broadcasts, a newspaper column, and Martha Stewart product lines sold in retail stores, through catalogs, and over the Internet.     

CAREERS FOR GEOGRAPHERS: THE CASE OF ONTARIO 1953 TO 1972

T he employment prospects for graduates in different disciplines have recently been the focus of attention for many pessimists.¹ Surveys relating to this problem have been made in a number of countries over the past few years.² In Canada, the Canadian Association of Geographers established a Careers Committee in 1970, under the chairmanship of Professor R. Paquette. The initial task of the committee was to survey the fields of employment into which graduates have moved in the past.     

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.     

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.     

Joseph P. Bradley's Journey: The Meaning of Privileges and Immunities

Justice Joseph P. Bradley of New Jersey will forever be remembered as the judge who in 1883 cruelly scorned black rights in the Civil Rights Cases . ¹ Yet Bradley's position that year marked the end of a journey that had started in a quite different place. Thirteen years before, when he first joined the Court, Bradley had read Fourteenth Amendment protections of citizens' rights expansively, believing that "it is possible that those who framed the [Fourteenth Amendment] were not themselves aware of the far reaching character of its terms." In 1870 and 1871, Bradley wrote that the Fourteenth Amendment's Privileges and Immunities Clause reached "social evils … never before prohibited" and represented a commitment to " fundamental " or "sacred" rights of citizenship that stood outside the political process and "cannot be abridged by any state." ² By 1883, however, Bradley had turned away from such views. In the Civil Rights Cases , he wrote that nothing in the Thirteenth or Fourteenth Amendments countenanced a law against segregation. Blacks, he said, must take "the rank of mere citizen" and cease "to be the special favorite of the laws." ³     

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.     

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     

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.