Novus Ordo Seclorum

Review in this Article
Michael H. Hunt. Ideology and U.S. Foreign Policy . New Haven: Yale University Press, 1987. xiv + 237 pp.     

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.     

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 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 Obscenity Bargain: Ralph Ginzburg for Fanny Hill

The next‐to‐the‐last witness at the July 1968 hearings on the nomination of Abe Fortas to replace Earl Warren as Chief Justice was James Clancy. Along with another attorney, Charles Keating, who would later gain infamy in the savings and loan scandal of the 1980s, Clancy appeared on behalf of Citizens for Decent Literature, an anti‐smut organization that had filed amicus briefs supporting censorship “as essential to the development of good family living” ¹ in the Supreme Court's important obscenity decisions. ² Clancy asserted that everyone should see the materials Fortas had held were entitled to First Amendment protection, and so he had assembled a thirty‐minute compilation of them for the Judiciary Committee's viewing.     

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.