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.     

The Arlington Cemetery Case: A Court and a Nation Divided

Seventeen years after the Confederate general Robert E. Lee surrendered at Appomattox, his eldest son won a sweeping victory over the federal government in the United States Supreme Court. On December 4, 1882, the Supreme Court upheld a federal trial court's ruling that the United States government's claim of title to Arlington National Cemetery rested on an invalid tax sale. The Justices thus affirmed the lower court's verdict that George Washington Custis Lee (“Custis Lee”), eldest son of Mary and Robert E. Lee, held legal title to Arlington. The Supreme Court also upheld the lower court's decision to permit Custis Lee to bring suit against the government officers who occupied Arlington. On the latter point, the Justices split 5 to 4, with a majority ruling for Custis Lee. The outcome of United States v. Lee, commonly known as the Arlington case, made it clear that the Lee family, and not the United States government, owned Arlington.     

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.     

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 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     

A Falling Out: The Relationship Between Oliver Wendell Holmes and Theodore Roosevelt

Theodore Roosevelt is often credited with founding and shaping the modern American presidency. With his appointment of Oliver Wendell Holmes to the Supreme Court of the United States, Roosevelt also set in motion a force that would transform the judiciary. However, it did not go as Roosevelt had planned. Holmes' refusal to conform to Roosevelt's desires in Northern Securities Co. v. United States demonstrated that Holmes was his own man and not Roosevelt's instrument. The decision brought an abrupt halt to what had been becoming a close friendship between the two men. Over the years the rift deepened. The bitterness that grew between them reflected more than a difference of opinion over law and economic principles; it reflected the type of disillusionment that comes only when a friend fails to live up to expectations.     

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.     

President Jefferson's Three Appointments to the Supreme Court of the United States: 1804, 1807, and 1807

In endeavoring to set the stage for an examination and analysis of Mr. Jefferson's three appointments to the Supreme Court of the United States, a summary glance into those of his two predecessors, George Washington and John Adams, both Federalists, is apposite.     

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 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     

The Dred Scott Dissents: McLean,Curtis, Lincoln,and the Public Mind

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Joining the Court: Pierce Butler

In a four‐year span beginning in the summer of 1921, five new members took their seats on the Supreme Court, and three of those men—the middle three—arrived on the Bench within four months of each other. The first of the five was William Howard Taft, who, upon the death of Edward Douglass White, was named Chief Justice of the United States by President Warren G. Harding. Minnesota corporate lawyer Pierce Butler wrote Taft a genial letter, extending his congratulations and best wishes. “I felicitate you because it is an honor to any man to be chosen to that, the most exalted position in the world, and because no one who is qualified to discharge the duties of the office can fail to rejoice in attaining it. But the country is to be congratulated much more than you are.” ¹     

The Judicial Bookshelf

Americans were reminded last January 20, as they are every four years, of the central moment at the Inauguration: the swearing in of the president. In this republican rite, the new or continuing chief executive publicly subordinates himself to the fundamental law of the land. As the Constitution dictates, "[b]efore he enters on the Execution of his Office, he shall take the following Oath or Affirmation: 'I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.'" ¹ Justices of the Supreme Court, other federal judges, legislators and officials, as well as state officeholders, likewise govern only upon making a similar pledge. "Senators and Representatives … , and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution." ² And for added emphasis, protection, and insurance, the Constitution crowns itself, national statutes, and treaties as "the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." ³ Parallel drama unfolds in other venues too. In the half century since all nominees to the Supreme Court have routinely appeared before the Senate Judiciary Committee, it would be difficult to find an example of a would-be Justice who, through one combination of words or another, did not promise senators that she or he would faithfully interpret and apply the Constitution.     

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     

Louis D. Brandeis: Advocate Before and On the Bench

On January 3, 1916, members of the Chicago Bar Association listened attentively as one of the country's best-known attorneys and reformers rose to speak to them. No one in the audience, not even their guest of honor, knew that within a few days the President of the United States would nominate him to become a member of the United States Supreme Court. In his speech that day, Louis Dembitz Brandeis spelled out his views on the problems confronting law in a rapidly changing society, and placed much of the blame for social unrest and popular disrespect for the law on judges who refused to recognize the economic and social developments taking place all around them:     

The Right to Mobility: The Production of Mobility in the Courtroom

This paper considers the way mobility has been given meaning by decisions in the United States Supreme Court. It argues that in four key decisions the Court constructed a de facto “right to mobility” by linking mobility to notions of citizenship. The paper suggests that these cases illustrate the importance of considering how mobilities are given meaning in particular contexts and how these meanings are framed within notions of mobility as an essential human freedom. The paper is framed by discussions of mobility, rights and citizenship and concludes with a discussion of the role of othering in the production of mobility‐as‐citizenship.     

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.     

Church and Empire: Free-Church Ecclesiology in a Global Era

Abstract

Jesus was cruelly executed as the alleged "king of the Jews" because of his efforts for grassroots religious renewal and resistance to Roman rule in Palestine through local religious-political elites. By the fourth century CE, however, Christianity had become the official religion of the Roman imperium. An ambiguous account of both resisting and supporting imperialism has shaped all church history. Today the United States of America is widely recognized as the central power in a new global empire.     

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.