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November I I I Electronic Access This lO11mal is av,lilable online InluSr::"iUt, Vi'-;lt to se~rch the "rricles ilnd for table of COf1tcf1tS email ab·r,. volumcs arc "vailable may be obtained from PeriodicaL ServIce 5899, Email: CanJdi~n address to 350 Mam St .. Malden, MA 02148-5020. Phone: 78 I -338-8532. This )Ollrll"l on paper, absrLlCrcd in rhc Crnh'r Arl/t/rF!1·sl; O,dill(, SUPREME COU R T HI S TORICAL SOCIET Y HONORARY CHAIRMAN John G. Roberts, Jr., Chief Ju stice HONORARY TRUSTEE Sandra Da y O'Connor, Associate Justice-Retired CHAIRMAN EMERITUS Dwight D . Opperman CHAIRMAN Leon Silverman PRESIDENT EMERITUS Frank C. Jones PRESIDENT Ralph 1. Lancaster, Jt. VICE PRESIDENTS Vincent C. Burke, III Dorothy Tapper Goldman Mrs. Thurgood Marshall E. Ba rrett Pre[[yman, Jr. SECRETARY Gregory P. Joseph TREASURER Sheldon S. Cohen TRUSTEES George R. Adams Phillip J. Kessler Sa ll y Rider J. Bruce Alverson Augusr P. Klein Jonarhan C. Rose Perer G. Angelos Philip Allen Lacovara T eresa Wynn Roseborough Marrha Barncrr Jerome B. Libin Ri chord A Schneider David J. Beck Roben A. Lonerga n Barry F. Schwarrz Max W. Berger Joan Luk ey Jay A Seku low Nancy Bren nan Maureen E. Mahoney Nico le K. Seligmm Berh S. Brinkmann Gregory J. Maier Kelly J. Shakelford Nonnan M. Brorhers, Jr. Thurgood Marshall, Jr. Ka nnon K. Shanmuga m Leo nora Burger Timo rh y Mayopo ulos Sreven R. Shap iro Paul D. Clement Teri McClure Jero ld S. Solovy Charles J.Cooper Lee I. Mille r Ke nneth W. Starr Michae l A. Cooper Jeffrey P. Minear Marhew D. Sraver Harlan R. Crow Thomas Monaghan Mrs. Porrer Stewarr John J. Dal ron Michael E. Mone Carhl een Douglas Stone Drew S. Days, III Lucas Morel Mikel L. Srom Charles W. Douglas Charles Morgan Den ni s R. Suplee James C. Duff James W. Morris, III Larry Thompson Miguel A. Estrada James Mudd Sr. Seth P. Waxman Dav id Frederick John M. Na nnes Dan K. Webb Foster Friess Rick D. Nydegger W. W ayne Wirhers Gregory S. Ga llopoulos James B. O'Hara 'vV . Foster Wollen Ke nn erh S. Ge ller Theodore B. Olson Donald Wrighr Frank B. Gilberr Brian B. O'Neill Robert E. Ju ceam James L. Goldma n David Onorato Cmtr"ai Counsel Frank N. Gundlach Carter G. Phillips Wi ll iam J. Haynes, II Leo n Polsky Da vid T. Pride Benjamin Heineman James W . Quinn Exu"t;v, Director AE. Dick Howa rd Harry M. Reasoner Kath leen Shurtleff Robb M. Jones Bernard Reese Assistallt Director Brad S. Karp Charles B. Renfrew JOURNAl OF SUPREME C OUR T H ISTOR Y 200 9 VOL. 34 NO·3 PUBLICATIONS COMMITTEE James B. O'Hara, Chairmall Donald B. Ayer Louis R. Cohen Lucas Morel Luther T. Munford [).lVid O'Brim Carter G. Phillips E. Barrett Prettyman, Jr. Michael Russ D. C::;ricr Stephenson, Jr. Melvin 1. Urofsky BOARD Of EDITORS Mclvlll 1. Urofsky, Chainnan Herman Belz DavId J. Bodenhamer Cralg Joyce David O'Brien Michael Pamsh L.A. Powe, Jr. Sandra VanBurkleo MANAGING EDITOR Clare Cushman GENERAL STATEMENT of the J( was founded by educational outreach program co Court, the Constltucion and the judIcial branch, The cosponsors Street Law Inc,'s summer insCltute, which trains school teachers to educate their scudents about the Come the Consricution. Ie also sponsors an annual [ccrute series at the Court as well as The mamtains its own educattona'! webs.ite and about important h),-llIlll'nr'HV History of the .'",I1l·l'rT1P grant from the National Historical Publications and of the federal are often '-'LlfnCH'C Court Decisions and Women's Rights: Milestones to law We the Students: Supreme Court Cases for and About School Students school textbook written by B, Raskin; and Black White and Brown: The Landmark School Case in Retrospect a collection of essays to mark the 50th anniversary of the Brown rmllton annual viSlwrs. The has members whose finanCIal and volunteer the standing and ad hoc comminecs enables the onCY"!117"r1"!1 to function. These committees report to an elected Board of T [ustees and an Executive Committee, ri,e of whlch is deCISIOns and for the permanent staff. for additional information should be dIrected to the Street. N.E., D.C. 20003, JOURNAl OF SUPREME C OURT HISTORY 2009, vol. 34, no. INTRODUCTION Melvin 1. Urofsky v ARTICLES Merryman and Milligan (and McCardle) John Yoo 243 Swift and Erie: The Trials of an Ephemeral Landmark Case A. F"c),tr 261 The Flag Salute Cases Reconsidered Richard Morgan 275 \Vhy Dennis v. United States is a Landmark Case Michal R. Belknap National League o{Cities and the Ephemeral Nature ofSignificant Supreme Court Cases Eugene Hic.kok 30 3 The Judicial Bookshelf D. Crier Stephenson, 315 CONTRIBUTORS 332 ILLUSTRATIONS m Copyright 2009, by rhe Supreme Court Historical at 0p[Xl'man House 224 East Capitol Strfet, N.E. Washington, D.C 20003 ISBN 9781405199803 ISSN 1059-4329 Introduction Melvin I. Urofsky This issue carries the talks oflast spring's Swifty" was as bad as it has been de- lecture series on landmark cases that perhaps and whether Erie really made such a are less monumental than have thought. difference. Certainly all of these cases receive extensive The Salute Cases are a of treatment not in my but in most on the First Amendment, but the collections of constitutional cases. Perhaps it question is whether significantly is time to rethink and our five contrib­ how the Court viewed the religion and utors at the least us something to think clauses. The twei cases, as Richard about. shows, make a wonderful story-but is it the John Yoo has been in the news a great story or the impact that has been the more last- deal for his views on what Supreme Court in cases mean in terms of limits on presidential No one knows more about Dennis v. power in wartime. The three cases that he dis­ United States (1951) than my good friend cusses have Michel and so I have to sit up and strict limits on the ,,-,V'lllJlla.l pay attention when he says that the re­ Professor Yoo suggests that this may not. be mains and should be considered a what the cases-all dating from the Civil War landmark case. Here I think Mike does what era-mean every good teacher wants to He On my first in "Federal Courts" in law makes his students (readers) rethink some of school, the asked us what the case their assumptions. of Erie Railroad v. Tompkins (1938) meant, When National League and after several of us mumbled things about came down in 1976, many people there no federal common law, he then and its author, Justice William H. said in essence, the rest of the semester as begun the reversal of four decades would be devoted to seeing how Erie affects of tilting the constitutional balance against current federal-court jurisdiction. The ques­ the states in favor of the national govern­ tion that asks is whether "Old ment. But although would continue v vi JOURNAL OF SUPREME COURT HISTORY to a new constitutional federalism, Era" into the "Roberts Era" there National of Cities was soon reversed. wili no doubt be many more. Fortunately, we Eugene Hickok looks at the nature have the of Grier Stephenson to sort out of what, at the seemed a turning ooint in these books and to determine which ones are the Court's federalism worth our There have been a lot of books on the It is an this issue, and so, Court in recent years, and as we move from the as alwavs. enjoy! Merryman and Milligan (and McCardle) JOHNYOO* It has been said that only Jesus and have been the subject of more works than Abraham Lincoln. But that doesn't mean we shouldn't still trying to I am to be adding to that body of on the relationship between Lincoln, the Court, and the Civil War. The cases that I address here make up two- in Indiana, who was tried and sen­ thirds ofthe three "m"s ofthe Court's tence by a military commission-an old form encounter with the Civil War: Ex of ad hoc court established by com­ ryman, J 2 and manders for the trial of violations of the laws Card/e. All three case names bear the of war and the administration ID oc­ "ex because all three were brought on territory, behalfofcitizens detained the armed forces In these two cases, federal courts ordered ofthe Union, All three detainees release the release ofthe on the ground that under the ancient writ ofhabeas corpus, which the had exceeded its constitutional au­ the government to show the factual thority. Both opinions contained stirring lan­ and for detention to a guage about the vitality ofconstitutional judge, I will explain why the cases of the Civil even under the pressure of wartime and the War did not assume the landmark importance, need to maintain checks and balances on the their circumstances and ofa executive's powers. In Merryman, /VIIJ'rIl1IfT v. McCulloch v. IVlIlrUIIJ'IJ/ (as Chief or Brown v Board 4 bers) nr""''''~t",rl Merryman was a Maryland militia officer suspected Confederates in Maryland and re­ who had blown up railroad between fused to civilian authorities without D.C and the North and was train- the approval of Taney had ordered secessionist troops in the earliest of General George commander of the Civil War.
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