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Abstracting and Indexing The contents of this Journal are indexed or abstracted in the following: ABC-Clio; Aca­ demic Search Premier; America: History and Life; Cambridge SCientific Abstracts Worldwide Political Science Abstracts; Catch Word; EBSCO Academic Search Premier; EBSCO Legal Collection ; Historical Abstracts; Index to Legal Periodicals and Books; InfoTrac Custom; InfoTrac OneFile; Ingenta ; Inter­ national Political Science Abstracts; JSTOR; LegalTrac; Online Computer Library Center ArticleFirst; Online Computer Libraty Center Index to Legal Periodicals & Books; and Sociological Abstracts. SUPREME OUR T ISTORJCAL SOCIETY

CHAIRMAN EMERITUS D. CHAIRMAN Leon Silverman PRESIDENT Frank C. VICE PRESIDUlTS Vincmc C. Burke, III

Je. I. LanG1S ter, Jr, SECRETARY Wdrrcn Daly TREASURER Sheldon S, Cohen

TRUSTHS R, Adams A.E. DIck Howard Bernard J, Bruce Alverson Frank G, Charles B, Renfrew Peter G, Robb M. Wdham Bradford Martha Barnett Herman Bdz Barbara Black Allen LlCovara L Black, Jr. KathleCr1 McCree LeWIS Sckulow Frank Boardman B, Libin Richard A, Schneider Brennan DaVId Scorr Edmund N, II Andrew M, Coats Kenneth Scan: Charks J, Scone l'v1.chacl A. Walter Seeb P. vVaxman Diddcn III N. WilIiams C. Duff Wilson Wilham Edlund Michael Mone W Foster 'Wollen D. Illis Lucas Morel Donald A. btrada Charlc> David Frederick W Morns, JII Ch,lrlrs 0. Galvin M, Nanncs General Counsel Fmnk B, Gilbert Rick 0, David T Pride L, Goldman B, O'Hara Executive Director D. Gordan, III Ted Olsen Kathleen Shurrleff Frank Gundlach David Onorato Assistant DireClor Robert A, Gwinn Caner G, Heineman Leon Allen Hill M, Reasoner JOURNAL OF SUPREME COURT HISTORY

2005 vol. 30 no.

PUBLICATIONS COMMITTEE James B. O'Hara, Chairman Donald B. Ayer Louis R. Cohen Lucas Morel Lurher T. Munford David O'Brien Carter G. Phillips E. I)arrett Prettyman, Jr. Teresa Roseborough Michael Russ D. Grier Stephenson, J r. Melvin 1. Urofsky

BOARD OF EDITORS Melvin 1. Urofsky, Chainl1an H er man Belz David J. I)odenhamcr Kermit Hall Craig Joyce Laura Kalman David O'Brien Michael Parrish L.A. Powe, Jr.

MANAGING EDITOR Clare Cushman

Bbckwrll PubJishing. Bo"fOJl. 'i\ L1!'~( hU~C I b & O.\"f~ II"(:L UK GENERAL STATEMENT

the eoIlecrion and of the Columbld 111 [97+ it was founded by chairman.

educational outreach program rl,'''(!n~'' Court. the Constitution and cosponsors school tC;lCh('rs ro educate thcll" srudcms about

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seeks (0 reconstruct an accurate record the the form,ltivc dCGllle between 1789 ;md [800 because records

intc.rviewcd is program [hat has Illustrated Biographies 178'11995 JUVL~Hl~ Court Decisions and Women's Rights: Milestones to to law cases; We the Students: Comt Cases for and About School Students a Raskin; and Black White and Brown: The Landmar:k School collecrion to the of [he Browl1

collection of busts and and other artifacrs and memorabilia to rhe Court's These matcnals arc by the Come Curator's Office for [he benefit of rhe one

5,700 members JOURNAl OF UP c U HIS OR

200" vol. 30, no,

INTRODUCTION MelvilJ L v

ARTI(LES

The Public to Controversiril COLlrt Decisions: The Insular Cases

Bartholomew H. 197

Harlan's Lectures at

Terrorism and H;Jbe3s Comus: A Morad FakUllli

Blrised c of the Comt of the UnIted Strites

Albert rm:vrCllcc

The (he

271

The Bookshelf D

CONTRIBUTORS 30 3

PHOTO CREDITS

2005, by t)DDfrmal1 }-[OUSC ·Introduction Melvin 1. Urofsky

The articles in this issue cover a wide va­ a world power and joined other Western nations riety of but no more so than any of the in holding overseas territories as IJU~"':;:S:SJ!\)Il;>, recent Terms ofthe Court Matters of a~ry wn foreign policy, habeas corpus, patent and how we would treat those territories and their the like were on the Court's docket in the Octo­ under the Constitution. This not ber 2004 and no doubt some future editor just a matter it would affect how ofthis Journal will be those cases. laws for the governance of The first article some truth in ad­ those territories and how the President would on my A book that] am direct their administration. The Court contains forty essays on the response to a particularly important role in this de­ controversial Supreme Court decisions, start- bate, because in the end the Insular Cases did with M 'Culloch v. lvfaryland (1819) and with McConnell v. Federal Election cared about this issue. Commission (2003). This book aims to show We are to be abJe to this the Court's decisions in a wider perspective on the by Bartholomew Sparrow ofthe than that of the law itself. These decisions do University of Texas. have an impact, even if that impact is not al­ There have been only a few law profes­ ways as dramatic as, for the strik­ Court. One thinks down of in Brown v. Board Story and Felix Frankfurter. Education ( The decisions of the Court But many Justices right down to the affect public policy and the public's percep­ have done some as part of their ex- tion of that policy. make people think activities. For some, it is restricted about--and often they to the summers when the Court is not in ses­ may have held on issues. At the turn sion, but in older Justices often taught ofthe last century, as the United States became during the time when the Court sat One of

v vi JOURNAL OF SUPREME COURT HISTORY

the most famous of these law was W::;dgUC:'. That is why, he a dissent is al­ the first Justice John Marshall Harlan. As we ways "respectfully submitted." There have, of know from Linda Pr7\lh\;~7PUI~1< wonderful course, been some famous feuds on the biography, this meant a great deal to such as those between Felix Frankfurter and Harlan. Andrew Novak's article gives us a far William O. but there have not better idea of what Harlan and how he been viewed that udiees on the Bench. The The war on terror has raised a whole host ofquestions, some of which have already con­ fronted the Court and many that will him out of the Cabinet. Albert Lawrence pro­ have to be resolved bv the judiciary. vides us with a new, por­ But the Court writes on a blank slate. By trail of McReynolds, who served on the Court its nature, the Court looks to related Y"·"'''''.'''o", from 1914to 1941 to see how prior Courts have dealt, ifnot with Patent law is an area that, 1 must admit, the same then with related matters. In has always confounded me, desDite the fact Morad Fakhimi's we get a careful ex­ ploration of the judiciary's earlier experiences Like admi­ in this area. While certainly not as of a for the Fakhimi's article not only reminds us that in terms of the a keen legal mind but also an of there is rarely anything totally new under the science and far that of the sun, and we need to understand how constitu­ ordinary person. The Constitution for tional issues have out in other and and so it is not of our ing that such cases come before the Fortunately for the Court and its members Court. We are fortunate that in Timothy relations among the Justices B. Oyk we have someone who is able to ex­ for the most been A few press the intricacies of patent law--and how years ago, in a group ofhigh school the Justices interoreted it--in a manner which Justice Thomas noted that the debates we can understand and appreciate. within the Court are often heated-and rightly but not Grier so, because important are involved. "Judicial Bookshelf" us an But these no matter how intense, are idea ofsome ofthe many books that have come carried out in an air of civility, because the out recentlv on the Court and its members. Justices know that there will be other issues this issue of the Journal them on which they will have to work as presents a feast. I you will all enioy it. The Public Response to Controversial Supreme Cou Decisions: The Insular Cases

BARTHOLOM H.

In the Insular Court established a new category of areas and persons coming under the ofthe United States. Added to (I) the member states ofthe Union and (2) the territories (and states to was (3) to" United but not a part of it. Justice Edward White proposed doctrine~lhat territories were of two types, those fit to be states, and to be the property of the United States-in his in Downes v. Bidwell.' could govern these latter territories as it subject to "fundamental" protections under the Constitution, those protecting individual liberties rather than those political participation. Only a handful of the some In­ found that could tax trade between sular Cases decided between 190 I and 1922 Puerto Rico and the states. Puerto Rico was the lion's sbare ofpopular and schol­ thus not a of the United States for tariff arly reaction, and it is to those that we turn. purposes--contrary to the Clause. In De Lima v. tbe Chief Justice :vielvi lie Fuller and Justice John Court beld that Puerto Rico was part of tbe Marshall Harlan dissented vigorously on the United States for the purpose of tbe Unifor- grounds that once new was of Clause. The under orders from the United the Constitution applied in the White House, could not collect duties on full. imports from Puerto Rico since Puerto Rico In Dooley v. United decided six had been annexed to tbc United States ac­ months later, a of the Court held that could tax goods from with Spain. In Downes v. the states to Puerto Rico. Neither the Unifor­ which was decided the samc the Court mity Clause nor the Constitution's prohibition 198 JOURNAL OF SUPREME COURT HISTORY

In the early twentieth century, the Supreme Court heard a series of cases debating whether Puerto Rico, which had just been annexed from Spain, was part of the United States for tariff purposes. Above is a residential street in San Juan. of taxes on exports applied, once Congress Puerto Ricans, though U.S. citizens under the acted under its authority under the Territory 1917 Jones Act and with a fully organized ter­ Clausc. And in Fourteen Diamond Rings,4 ritorial government, were not guaranteed jury the Supreme Court ruled that Congress could trial. not tax trade between the Philippines and the The U.S. government had always implic­ states, since the Philippines were also anncxed itly had plenary power over its territories by by the terms of the 1899 Treaty of Paris. All virtue of its authority to hold territories as four cases of 190 I were five-to-four decisions. territories and to delay their admission as In Hawaii v. Mankichi,5 the Court ruled states virtually indefinitely, to dispose of the that Hawaiian rcsidents were not entitled to land within the territories, and to set territo­ jury trial, despite the fact that the Newlands rial boundaries. With the Insular Cases and Resolution had annexed Hawaii shortly after with the United States' acquisition of Puerto hostilities had ended with Spain. And in Dorr Rico, the Philippines, and Guam after the v. United States6 the Court ruled that Philip­ Spanish-American War--each densely popu­ pine residents, too, could be denied jury trial, lated by non-white inhabitants-however, the despite the annexation and the fact that the Is­ Court made Congress's power explicit. The lands had an organized government (as ofJuly U.S. Constitution did not operate ex proprio I, 1902); the Philippines were still "unincor­ vigore-that is, by its own force. porated." Alaska, though, was incorporated, The Insular Cases provoked intense re­ despite Alaska's absence of a territorial gov­ actions. The Supreme Court reached its deci­ ernment and minimal population (Rassmussen sions issued in the Insular Cases of 190 I "after 7 v. United States ). Finally, the Supreme Court one of the most spirited discussions ever held ruled unanimously in Balzac v. Porto Rico8 that within the sacred circle of the Supreme Court INSULAR CASES 199

This cartoon shows a U.S. Cuba's sugar trade with the United Stales, an allusion to Puerto Rico's trade benefits

to the mcnt. to numbers mentous issues has been or and of the nation to come before the tribunal of last resort for arbitrament, and ev­ for the Court to meet is noon, but ery man who was fortunate before that time arrived the little to access to the chamber dur­ elliptical chamber was jammed with the delivery of the opinions ap­ every phase that he was one oflife at the national and long of the most tremendous events in the lines people stretched in both nation's life. 10 directions from the doors down the corridors of the great And once the Court announced its tol Building. The colored bailiffs at "Nothing else was talked of at the the door had all they could do to national capital to-day but the triumph of the hold the anxious on the out­ government."j 1 side in and thus protect the The "President and the Cabinet officers solemn dignity of thc august tribunal were elated over their victory, they from being shocked. The bare have never doubted that the decision would rumor that the court would render be in favor of the government.,,12 As for­ its decision in the insular test suits mer Attorney General John (who had was sufficient to create an interest the eases for the U.S. among all sorts and conditions of "It was a complete victory for the 200 JOURNAL OF SUPREME COURT HISTORY

"Now, boys, be good and when you have learned your lessons you may join the senior class." government, . , . I do not think that any case ever came before the Court involv­ to for Porto 109 interests than these cases, and in the Rico and the Philippines, and settles sense, the gained a com­ once and for all that the United States " And as Solicitor General John Richards "They sustain to the fullest ex­ tent the so-called insular policy ofthe adminis­ tration. The government now has the sanction Sen. Foraker further explained the of the Court for these is­ Court's decisions: lands as their needs ,,13 What the Court decided was that Sen. Foraker ofOhio, the author of while we were Porto Rico, the explained: prior to the ratification of the ofpeace, it was The decision is a vindica­ our and was tion ofthe position held military, and all that was done in the INSULAR CASES 201

Poor old Constitution-"Phew! 'It's a merry time I'll have now, following the flag!'"

nature of a military necessity and Porto Rico after the ratification of valid on that account; that from and the treaty of peace and prior to after the ratification of the treaty of April 12, 1900, when Congress first peace it was no longer foreign but legislated, were illegally collected, domestic territory within the mean­ however, not because Congress was ing of our tariff laws according to without constitutional power to im­ which tariff duties can be collected pose such duties on importations only on importations from foreign from Porto Rico, but because dur­ countries, and that consequently the ing that period Congress had not so duties collected on imports from legislated. 202 JOURNAL OF SUPREME COURT HISTORY

"Which is in and which is out?"

The third proposition decided bv the insular to theil' court and the one of supreme rQcn~~hm> necessities. tance was that Porto Rico a ter­ oHhe L nired States is not a part Jn the House of Representatives, ofthe United but only Charles Grosvenor of "the recognized to the United spokesman of the administration" as the that it is, therefore, within the consti­ New York Tribune described him, stated that tutional power "the insular test cases sustained all of the Islate with respect to it contentions and arguments of the Republican imposition of tariff duties as it may members of the House and Senate concerning see fit, and that Congress having so all questions which were discussed and voted ted on upon in Now there is to visions of that law are valid and to be do but to go ahead and "15 Joseph upheld and enforced; In other Cannon of the chairman of the the effect of the decision is that the Committee on Appropriations, too: Constitution does not follow the "It appears to me that the court did just the and that Congress has plenary power proper thing. If has not the right under the constitution to govern our to legislate for the by the INSULAR CASES 203

United then the United States has no thirteen states first set up to the ,,16 for themselves. .. The architect ofthe United States' insular We must make our territo­ policy, of War Elihu Root, agreed: ries what we have made of our ac­ "Unquestionably the decision of the court sus­ quired territories heretofore. We have tains the theories and the policy met our race and adopted the administration in conducting some have the affairs of the islands since the but not ratification of the Paris Treaty. The uphold­ the American mind to conquer. What ing of the Foraker act we must avoid is ANY ATTEMPT had the power to AT IMPERIALISM. We want NO ited by the contingencies of the constitution."17 dered President's Hearst's San Francisco be nJled statesmen's saw the decisions as restric­ tent sons. We want our new posses- power, preventing "a Pres­ to be TAUGHT TO GOVERN ident the powers of a dictator": THEMSELVES. That is a continua­ In the return of the duties tion ofthe American which has collected on Porto Rican products be­ from Manhattan to the fore the passage of the Foraker act, the court reduced the President once That was and for all to his proper position as fired in the and before we the head of a republic governed by had incurred any of the troubles we written laws. By putting Porto Rico have suffered from the to ap­ and the Philippines on the same foot­ to our new ing with other territories, the decision deprived the Porto Ricans and the Filipinos of the feeling that they were But the decision of the discriminated against and treated as Court has cleared the last snags out inferior races. At the same time, by of the road of expansion without i8 conceding to Congress large discre­ powers in dealing with the ter­ ritories, subject to the constitutional guarantees of civil liberty, the court Still others saw the Supreme Court's de­ made it possible to for each cIsions as an endorsement of in accordance with S. Boutwell, a former congressman, needs, and so smoothed the US. and US. senator, way for expansion.. . as well as of Anti­

On November, 16, 1898, before the treaty of Paris had been ratified, the editor of the Examiner telegraphed from San Francisco to the New York .Journal: sian shall be justified by further ''''',",'''''''F­ opinion, there will then remain nO "EXPANSION WITHOUT IMPERI­ cle to the transformation of this ALISM has been the policy and the an empire, with unlimited powers to practice of the United Stales since and with unlimited power to 204 JOURNAL OF SUPREME COURT HISTORY

The New York Herald, for its part, consis­ Denver Post wrote, too, that the "epoch tently opposed the Administration's policies: making" Downes decision "at onc fell swoop" brought the United States "into the ownership In the most important of the insular of colonies and putting us into the rank of cases decided yesterday and the 1110st the land-grabbing nations of Europe. We are momentous opinion rendered since now following the footsteps of England, not the foundation of the goverrunent in planting colonies as it did in Australia, but the Unitcd States Supreme Court by in conquering and ruling unwilling alien races a bare majority of one holds that at it did in India and incidcntally exploiting the constitution is supreme only in them." The Post concluded: the States, and that a million square miles, or one-fourth of the national No pronouncement of the supreme domain , and ten million people are court since Chief Justice Taney's de­ subject to no law but the will of cision in the Dred Scott case is likely Congress.... to provoke more widespread discus­ sion, and none which has been ren­ It can hardly bc said that either the dered since the days of Marshall is Court or the country is to be congrat­ likely to have a tithe ofits wide reach­ ulated on a decision which four of its ing consequcnces. But colonies are members say ' overthrows the basis of now part of the possessions of the our constitutional law and asserts that United States; they must go through the States, and not the people, created a period of probation more or less, the government. ,20 if not indefinitely, prolonged before The next day the Herald wrote ofthe " lack they rise to the dignity ofstatehood or of unanimity," "vulnerability," and "inherent even reach the equivocal position of weakness" of the Supreme Court's decision: territories.... Therefore the question no longer is whether or not the con­ No decision ofmore far reaching con­ stitution follows the flag, whether we sequence has ever been rendered by shall have colonies, but what methods the United States Supreme Court than congress shall adopt to government that in the Downes case, and no great them--only this and nothing more. 22 constitutional opinion ofthat tribunal has rested on a basis more insecure. It Probably the most famous response was is not only opposcd by the largest mi­ Mr. Dooley's comment: "No matther whether nority of which the Court is capable, th ' constitution follows th' flag or not, th' who declare through the ChiefJustice supreme coort follows th' iliction retums."23 that it 'overthrows the basis of our McKinley, after all , had been reelected in constitutional law,' but even the ma­ a landslide against William Jennings Bryan jority, while coinciding in the conclu­ in November 1900, just months before the sion, could not agree in the reasoning Supreme Court issued its decisions. by which it was reached. In view ofall Subsequent public responses were just as these considerations and the fact that divided. Eugene Stevenson, the outgoing pres­ the majority that rendered the opin­ ident of the New Jersey Bar Association, en­ ion may be turned into a minority by dorsed Justice Brown's position. the accession ofthe next new member "The Constitution of the United States ... to the Bench, how long can the judg­ expresses the will and is maintained by the ment withstand the onslaught which force ofthe inhabitants ofthe forty-five States its own weakness will invite in the of the Union," Stevenson argued, and "it future?21 neither expresses the will nor is it maintained INSULAR 205 by the force of the inhabitants of the Dis­ is made a part of the United trict of Columbia or of the territories of States. Until such action is taken New Mexico and or of Porto the territory remains sub­ the Sandwich Islands or the Philippine to the jurisdiction of the United Islands." Stevenson held that "all the territories but does not become a of the United and the limitations upon the power are those pro­ cal servitude to the inhabitants ofthe hibitions of the Constitution which States who compose the politic and go to the very root of the power of who of themselves have the power to enact and ,,26 re-enact and alter and amend from time to time the supreme law of the land which governs so But Charles E. Littlefielc4 a former con­ much of the land as the sees fit to gressman, was less sanguine. "The Insular include within the operation of his law."24 Cases, in the manner in which the results were Stevenson warned: reachec4 the of the and the of inconsistent views expressed the If the of these learned different members of the court, are, r believe, Justices are right and no distinction without parallel in history," Little­ can be drawn between Porto Rico on field wrote in the Harvard Law Review.27 The the one hand and the Philippine Is­ political scientist John W. Burgess was sim­ lands and possible slices ofChina and ilarly critical. "The in the Downes Africa on the other, this would be the case is ... nothing but an bit of patch­ result: The treaty-making power com­ work:' he wrote. "[ts purpose is to satisfy a of the President and certain demand of fancied could effect the addition of ency in the work of millions ofChinamen to the cit­ based upon the narrowest of the United all of exped iency. "2~ whom would become voters upon es­ Nor did the cases settle as sev­ 25 a residence in any State eral editors pointed out. "The decision ... will probably emphasize and rather than L. S. Rowe, though, a later pres­ settled the political issue:;; from the ac­ ident of the American Academy of Political and Social favored Justice White's " wrote the St. argument. Louis The New York Herald, too, found that "Amid the conflict and confu­ His views evidence of a desire sion ofso many opinions it is not easy to define to formulate a at once sim­ the limitations or the scope of what the Court pIe and intelligible. Whether has decided. But it is plain that vital issues we agree or with his conclu­ are still unsettled and left to future discussion sions they furnish a clear and definite rule by which the political organs of Record cautioned: "The the their con- of the Imperialists" over the Court's decisions are "rather premature. What is clear is that a mutilated Constitution does follow the to them com­ shall have determined to the

enactment or by On December 2, 1901, the Court issued its in a rule contained in a decisions in the two delayed cases, Fourteen treaty of such acquired ter­ v. United States, and v INSULAR 205

the force of the inhabitants of the Dis­ is made a part of the United trict of Columbia or of the territories of States. Until such action is taken by New Mexico and or of Porto the territory remains sub- the Sandwich [slands or the Philippine to the of the United Islands." Stevenson held that the territories of the United States, including the District of and the only limitations upon occupy a position the power of are those pro­ cal servitude to the inhabitants ofthe forty-five hibitions of the Constitution which States who compose the great politic and go to the very root of the power of who ofthemselves have the power to enact and r.""y,c..oo ,,26 re-enact and alter and amend from time to time the supreme law of the land which governs so But Charles E. rTt?"H'lrt a former con­ much of the land as the sees fit to gressman, was less "The Insular include within the operation of his law."24 in the manner in which the results were Stevenson warned: reached, the of the resu Its, and the variety of inconsistent views expressed by the If the minority of these learned different members of the court, are, I believe, Justices are right and no distinction without parallel in ourjudicial history," Little­ can be drawn between Porto Rico on field wrote in the Harvard Law Review.27 The the one hand and the Philippine Is­ political scientist John W. lands and possible slices ofChina and i1arly critical. "The Africa on the other, this would be the but an result: The treaty-making power com­ of the President and could elTcct the addition of millions ofChinamen to the cit­ of the United States, all of whom would become voters upon es­ Nor did the cases settle matters, as sev­ a residence in any State. out. "The decision .. will and ralher L. S. Rowe, though, a latl:r pres­ ident of the American of Political and Social favored Justice White's LOllis too, found that "Amid the conflict and confu­ His views evidence of a desire sion ofso it is not easy to define to formulate a principle at once sim­ the limitations or the scope of what the Court and intelligible. Whether has decided. But it is plain that vital issues we agree or with his conclu­ are still unsettled and left to future discussion sions furnish a clear and definite and determination."JO And the Philadelphia rule by which the political organs of Record cautioned: 'The the may guide their con­ of the over the Court's decisions duct in with are "rather What is clear is that territory. The a mutilated Constitution does follow the flag tion as laid down to them com­ until shall have determined to the plete power over such territory until, by express enactment or by On December 2, 1901, the Court issued its

IP"('PI"('P in a rule contained in a cases, Fourteen treaty of such acquired ter­ Diamond Rings v and v. 206 JOURNAL OF SUPREME COURT HISTORY

United States. "Politically, and in respect to forces the chiefjustice and his three colleagues its broad measures of policy, the Exccutive to become again the dissenting minority. By Department of the Government is sustained another vote of 5 to 4 the court holds that such by the decision of the court," the New York a tax is not an export tax and is therefore con­ Times wrote. "It is not sustained in its con­ stitutional." tention, and it was not sustained in that con­ Chief Justice Fuller, his three colleagues, tention in the Porto Rico cases, that it had and Justice Brown "made short work" of the power to levy and collect duties under mili­ point that the status oflhe United States in the tary administration without the legislative au­ Philippines was different from that in Puerto thority ofCongress. It made no differcnce that Rico "because in the former an insurrection our occupation of Porto Rico was unresisted, was still going on," the Record-Herald re­ while a great insurrection made our occupation ported. The Court's decisions at once meant ofthe Philippines costly and troublesome. For "a government defeat" in the Philippine tariff the purposes ofthis decision, cession and pos­ case and "a decided victory for the McKINLEY session arc held to be identical." The Times administration" in Dooley, thanks to the "ac­ pointed out, too, "The reasoning and deci­ robatic Justice BROWN .,,33 sion are identical with those of the De Lima Rep. Grosvenor, though, bel ieved that the case ... but it is plainly intimated by the Court Court's rulings in the Fourteen Diamond Rings that the principle of the Downes cases must and Dooley cases resolved matters: control so soon as Congress authorizes the col­ The decisions, taken together and lection of duties on Philippine merchandise." added to the decisions of last spring, At the same time, the Dooley decision "again fully sustain all the points insisted confirms the constitutionality of the Foraker upon by the Ways and Means Com­ act and lays down once more the principle that mittee of the House of Representa­ our new territorial possessions are not a part tives, and which became the posi­ ofthe United States within the revenue clauses tion of the Republicans in Congress of the Constitution. The judicial branch of the and the Administration. The net re­ Government has in all the insular cases sus­ sult of the whole business is that by tained the policy of the Executive branch."32 the treaty of Paris we acquired the is­ The Chicago Record-Herald of Decem­ lands without terms and with no stip­ ber 3, 1901, commented more pointedly on ulations controlling this Government the cases: "To-day Justice Brown was again the in its relation to the new possessions. pivot in still another most important case--one That while the treaty terminated the of greater importance, so far as the future is sovereignty of Spain and made the concerned, than the Philippine case. This was territory the property of the United the Dooley case, in which the constitutional­ States, yet it placed no limitations ity of the Foraker act was attacked, not upon upon the power of Congress to leg­ the ground that Porto Rico was 'a part of the islate on the new territory as it might United States,' but on the ground that the tax deem wise and for the best interest of levied at San Juan on goods going from the the islands .... The Supreme Court, United States into Porto Rico was in violation after these great contests have ended, ofthat clause ofthe Constitution declaring that placed the court where Webster and 'no tax or duty shall be levied on articles ex­ Burton and Lincoln and the Republi­ ported from any state.' The paper added: "But can platform of 1860 placed it.34 here Justice Brown joins forces with Justices Gray, Shiras, White and McKenna, whom he Senator John Spooner, author of the could not agree with in the Philippine case, and Philippine resolution and a Senate leader, INSULAR 207 commented that the two decisions "certainly men of excellent personal establish the proposition that but this no more excuses them than levy a tariff for the benefit and the same conditions excused the var­ the Philippine upon articles go- ious upright and honorable men who from the United States to the took in the wicked folly ofseces­ and from the sion in 1860 and 1861. States. The decisions Now I should like to know that for action by in devising Holmes was in entire sympathy with a system of taxation which will for our that is with our views and the support of the Philippine its mine and Judge ... I should schools, etc. hold as The Philadelphia ble wrong to the nation ifI should the Record had a daily circulation of over in his place any man who was not ab­ 180,000 newspapers in the nation's third sane and sound on the great largest city at the time-despaired of the national policies for which we stand Court's the "learned Justices of the 37 111 life. Court .. do not agree among and the of the United while bow­ promptly reassured the President that ing to the determination of the Court, can­ Holmes was safe on expansion and a Re­ not be to understand the why and publican. Then, in 1903, Roosevelt ap- wheretofore. William Day in the of Justice With both cases decided by "a bare ma- Shiras, another appointment he thought to be of one" and with the bitter differences sound on these issues. among politicians and the over the Just a few months Court issued its United States' island the outcome decision in Hawaii Mankichi. "The Con- of any future Insular Cases was thrown into not extended over Hawaii doubt when Justice Horace Gray announced his retirement. President Roosevelt wrote his "nor were local laws Sen. Cabot Lodge, about the or the Hawai­ on the Bench: ians would have been left without any kind of

The Court, But what was the effect of the who have ... upheld the policies of sion embodied in the Newlands res­ President olution which Hawaiian laws not ~Vll"'i''-''','. have rendered to the Constitution shall re­ a service to mankind and to this main in force? Did that involve the nation. The minority so elimination of all laws that were con- as to lack but one vote of be­ to the Constitution? This is re­ stood for such ally the with which the court dealt, and it answered it in the upon the that it in doing efficient and honorable cannot be assumed that work for the national and for Congress intended a construction that would have been attended by so much in Porto Rico and the inconvenience. The doubt they have pm;sesseo conclusion is open to motives and without doubt they are cords with common sense....38 208 JOURNAL OF COURT HISTORY

The New York World on 5 June 1903 reacted This is not a new doctrine. It more was enunciated three years ago in the Philippine cases, where the tar­ By the usual vote of five to four iff was solely in contention.... The the Court ... has decided doctrine that the Constitution is not that the Constitution did not follow for the States, but for all of the Fed­ the eral territory, was [John with Calhoun a little over of the territorial gov­ ago,. [who] invented the theory In ernment. it is affirmed that order to claim for all of the the creature is tllan the cre­ public domain, and ... the ator.. . It is as if a Council of Court in the Dred Scott decision held Ministers by the Czar of that he was right. ... That decision Russia should annex a territory and has been overturned not the then decide whether or not the Czar's courts, but by the trend ofevents. Or­ authority should have any standing we think that trial in it. a nght, and for most ofus it We owe respect to is not a natural right, but only a guar­ the Suoreme but when the antee to those who live in the Supreme Court makes a decision by various States or specifically a majority of one, with the Chief­ to inhabitants of some of the Territo­ Justice and somc of his ablest asso­ ries. The Supreme Court has decided ciates in the it is permissible in accordance with the law and the to doubt whether the is the facts of the case. Trial final voice of boon _ 40 from this de­ inherent in the flag cIsion is of Chief-Justice Fuller and Justices Brewer Evening News and Tele­ and Peckham-beyond question four Uf'fl-UIlU Buffalo was the eighth ofthe strongest justices on the bench. in the United States at the time-also sup­ Of the Brown, ported the opinion: White, McKenna, Holmes and Oay­ it is said that Justice McKenna is cer­ The method of trial by jury, as es­ not the strongest member ofthe tablished in and is founded in common sense after of ways ofdistribut­ was adopted, and that he and Jus­ tice Holmes are the newest recruits to formed after an experience of ages the bench.39 in that the cannot be worked among the half-civilized races. The A year the Supreme Court issued its Court of the United States decision in Dorr v. United States. has held that the jury system to the Inquirer of June 2, does not attach to our control of the Court: the Philiooines until Congress estab­ decided that the Constitution does not of its own force penetrate into the common sense view that one any country covered by the American is constrained to wonder how there INSULAR CASES 209

could be a contrary opinion in the system, as ... in the Hawaiian Court. and nullify all the other guaran­ tees of personal and liberty. It On the side of the prevailing may set up despotism in the adminis­ opinion the Court shows a tration and even in the gov­ to reach solid in the ernment itself42 of the Constitution that the has power to make rules and tions for the territory of the C nited "The plain lesson" of Dorr, David K. States without limit within the Watson, a former Ohio congressman, wrote in ordinary of life, liberty the American Law Review, "is that the Consti­ and property secured by that instru­ tution applies to ceded territory which has been ment. The doctrine that the Consti­ incorporated into the Cnited but it does tution follows the is perfectly not apply to territory which has been annexed true, but in the limited sense that but not incorporated into the United States.,,43 Congress has power over territories In Rassmussen v. Watson as soon as the is raised in them the issue "carne before the Court for a last permanently. The Court is time."44 settling down to bedrock on The Rassmussen decision attracted almost terri torial 41 no response, though, and neither did the last of the Insular Balzac v. Porto The New York Herald on the same Rico. But as the noted international saw otherwise. "NO TRIAL BY JURY IN Frederic Coudert wrote in 1926-and it was THE PHILIPPINES;' read its news headline, Coudert, who with his associates in Coud­ with smaller headlines running ert had argued for the plaintiffs in beneath: "Supreme Court Holds That Right De Lima. Downes, and Hmvaii v. Manltichi Was Withheld on Account of In- Rassmussen established that Alaska was in­ ofthe , "OPfNION CALLED corporated, even though it had no ~",~""._ DANGEROUS"; and "Justice Harlan Says It Is territorial government; Alaskan citizens were an Amendment to the Constitution Judicial therefore jury trial. "It was not, Construction.'" As the Herald commented in in Balzac v. Porto its editorial: Coudert wrote, "that an opinion a unani­ The constitutional doctrine affirmed mous court unequivocally adopted the incor­ ofthe court in this poration doctrine as part of our constitutional insular cases is that law."45 the constitution does not apply to the Although the Insular Cases were highly nation's outlying unless controversial at the turn of the twentieth and until so de­ century---every bit as controversial as the c1ares. Of course authority to make Dred Scott decision to some contemporary such declaration carries authOlity to observers-interest in the cases faded away, withhold it. This puts above except among Puerto Ricans. Hence the ab­ the constitution throughout a sence for some time of the Insular Cases from of the national domain. It con­ almost all constitutional law casebooks. And cedes to that body supreme power to if the Insular Cases have attracted notice from govern at will not only the in­ of Justice J uslice sular but any that may be and Chief Justice Fuller, and from a handful hereafter acquired. Congress under of legal few others have paid no­ this ruling may, for abolish tice. recent scholarship by Sanford 210 JOURNAL OF SUPREME COURT HISTORY

Levinson, Efren Rivera Ramos, T. Alexan­ 29SI. LOLlis Posl-Di,palcil, 2X May 190 I . der Alcinikoff, Gerald Neuman, Rogers Smith, JOThe New York Herald, 29 May 190 I. Sarah Cleveland, E. Robert Statham, and the J IPhiiadelpili" Record, 28 May 190 I . J2New York Times, 3 December 190 I . contributors to Christina Duffy Burnett and 33 lhid. Burke Marshall's edited volume, Domestic in 34San Francisco Exarninel; 4 December 1901. a Foreign Sense (2001),46 have helped to put 351hid. the Insular Cases back into the legal canon. J6Phiiadeiphia Record, 3 December 190 I. J7Theodore Roosevelt to Henry Cabot Lodge, 10 July 1902, Selections from the Correspondence ofTheodore ENDNOTES Roosevelt and Henry Cabot Lodge, Henry Cabot Lodge and Charles F. Redmond, eds., 2 vols., New York : Da Capo IDownes v. Bidwell, 182 U.S. 244 (1901). Press, 1971, 1:518-19. 2De Lima v. Bidwell, 182 US. 1 (190 1). 38Philadelphia Inquirer, 4 June 1903, JDooley v. Uniled Slales, 183 US. 15 1 (1901). 39New York World, 5 June 1903. 4Fourleen Diamond Rings v. Uniled Slales, 183 US. 176 40Phiiadeiphia Inquirer, 2 June 1904. (1901). 4 I BuJJalo Evening News and Telegraph, I June 1904. SHawaii v. Mankichi, 190 U.S. 197 (1903). 42New lork Herald, I June 1904, 6Dorr v. Uniled Slales, 195 US. 138 (1904). 43David K. Watson, "Acquisition and Government of 7Rassmuss en v. Uniled Slales, 197 US. 516 (1905). National Domain," 41 American Law Review 239, 253 SEalzae v. PorIa Rico, 258 US. 298 ( 1922). ( 1907). 9BufJaia Evening News and Telegraph, 28 May 190 I. 44lbid. IONew Yark Daily Tribune, 28 May 1901. 45Frederic R. Coudert, "The Evolution of the Doctrine of I I Chicaga Reconl-Herald, 28 May 190 I. Territorial Incorporation," 26 Columhia Law Revie\\' 823, 12 Wrlshillgloll Posl, 28 May 190I. 842---44, 847 (1926). I JNew York Daily Tribune, 28 May 190 I. 46See Sanford Levinson, "Why the Canon Should Be Ex­ 14lbid. panded to It The Insular Cases and the Saga of American ISlbid. Expansionism 17 COllslilLilional CommenllllY 241 (2000); 16San Francisco Examiner, 29 May 190 I. Efren Rivera Ramos, The Legal Construction of Identity: 17New York Daily Tribune, 28 May 190 I. The Judicial and Social Legacy of American Colonial­ I ~Sa n f-i-an cisco Examiner, 29 May 190 I. ism in Puerto Rico (Washington, D. C.: American Psycho­ 19Nell' York Daily Tribune, 29 May 190 I. logical Association, 200 I); T. Alexander AleinikotT, Sem­ 20Ne", York Herald, 28 May 190 I. blences of Sovereignty: The Constitution, the State, 21/bid., 29 May 1901. and American Citizenship (Cambridge: Harvard Uni­ 22 Denver Pasl, 28 May 190 I. versity Press, 2002); Gerald Neuman, Strangers to the 2J Finley Peter Dunne, Mr. Dooley's Opinions, New York: Constitution: Immigrants, Borders, and Fundamen­ R.H. Russell, 1901,26. tal Law (Princeton: Princeton University Press, 1996); 24 Eugene Stevenson, "The Relation of the Nation to Its Rogers M, Smith, Civic Ideals: Conflicting Visions of Dependencies," 36 American Law Review 366, at 374, Citizenship in U.S. History (New Haven: Yale Univer­ 375 (1902); emphasis in original. sity Press, 1997); Sarah H. Cleveland, "Powers Inherent 2S lhid.,385. in Sovereignty: Indians, Aliens, Territories, and the Nine­ 2 ~L.S. Rowe, "The Supreme Court and the Insular Cases," teenth Century Origins of Plenary Power over Foreign Af­ 5 Annals ofthe American Academy ojPolitical and Social fairs," Texas Law Review 81 No. 1(2002), 1-284; E. Robert Science 226, 248---49. Statham, Colonial Constitutionalism: The Tyranny of 27Charies E. Littlefield, "The Insular Tariff Cases in the United States' Offshore Territorial Policy and Rela­ Supreme Court," 15 Harvard Law Review 168, 170 (190 I). tions (Lanham, Md.: Lexington Books, 2002); Christina 28 John W. Burgess, "The Decisions of the Supreme Court Duffy Burnett and Burke Marshall, eds., Foreign in a Do­ in the Insular Cases," 16 Political Science Quarterly 486, mestic Sense: Puerto Rico, American Expansion, and 504 (1901). the Constitution (Durham: Duke Univers ity Press, 200 I), Courtroom to Classroom: Justice Harlan Lectu at George Washin on U IveII ity Law School

Al\DRE\V NOVAK

John Marshall Harlan had a success[ullegal career as an Associate Justice ofthe Court that spanned thirty-three years, from 1877 to 191 I, one of the terms in history. For twenty-one ofthose years on the Court he also distinguished himselfas a of constitutional law at Washington ,vith his on the Bench and on the Associate Justice David 1. about cvery subject: torts, law, commercial and his constitutional law. Justice Harlan began his teaching career Professor Harlan's prema­ at Columbian (renamed ture retirement from Washington in 1904) in 1889. It was the of the A New School of Jurisprudence and Diplomacy Reconstruction tumultuous It was meant to be a class The sopho­ college. In his mores planned on a ruckus brcak­ tenure, with the ing up a meeting ofthe freshman the first meticulously constructed a

prominent institution from very I shaping ll1 the school so that his lengthy shadow is thrce lecture halls in the building, still visible. But his sw.;cessors would across the first floor with scats that promise and their anda feet in the 212 JOURNAL OF SUPREME COURT HISTORY

twirls his baton." Although the student tried to wrestle away, he found himself helpless un­ der Justice Harlan's strong grip, bound by a "physical restraining order of the court." The Justice directed the sophomores to disperse, and this time they obeyed his injunction.' fn 1902, Jurisprudence Hall, where the freshman class meeting continued uninter­ rupted, was a newly-built, state-of-the-art fa­ cility within the School ofLaw and Diplomacy. It housed both the law school, the oldest in the District of Columbia, rechristened in 1865 af­ ter several unsuccessful births earlier in the century, and the graduate School of Jurispru­ dence and Diplomacy, which had opcned with great fanfare in 1898. Most professors, in­ cluding Justices Brewer and Harlan, taught both law students and diplomacy students. The School of Jurisprudence and Diplomacy, envisioned as a training facility for the diplo­ mats and Foreign Service officials of the United States, was the final wish of the late James Clark Welling was an eminent scholar who ably led George Washington University (then named President Welling. His successor, the Baptist Colombian College) in the late nineteenth century and Reverend Benaiah L. Whitman, whose short built it into a respected institution. term at the close of the nineteenth century is otherwise unremarkable, oversaw the building air. As the mob ofsophomores charged toward and opening ofthe new School. The timing was the main door of the Hall, they accidentally excellent: war with Spain was imminent and caught the sixty-nine-year-old Justice Harlan the United States' heretofore isolationist for­ off-guard. Harlan's height and build were leg­ eign policy was collapsing. The School would endary, and at six foot six he towered over the remain popular throughout its twelve-year hi s­ students, a vigorous and active golfer in excel­ tory, but it ran such an enormous deficit that it lent health. jeopardized the entire institution2 As soon as the large Kentucky jurist re­ Justices Harlan and Brewer both spoke alized the situation, he shouted in a loud, au­ at the opening ceremony of the School of thoritative tone, "Stop this; stop this at once, Jurisprudence and Diplomacy: Brewer as the or I'll have you all arrested!" His booming first of several guest speakers, Harlan as the voice startled the sophomores and they re­ last. The assembled audience included US. treated momentarily, frustrated in their attempt President William McKinley and Canadian to have a little fun at the freshmen's ex pense. Prime Minister Sir Wilfrid Laurier, as well The rowdy sophomores immediately began a as a host of di gnitaries, diplomats, and of­ second assault on the freshman meeting and ficials. "God has made big bodies to carry Justice Harlan responded with a "plan ofcom­ bi g souls," said President Whitman in in­ pulsory arbitration," as the Washington Times troducing Harlan to the podium. After the called it, reaching over the heads of the sopho­ rapturous applause died down, Whitman con­ mores and seizi ng the leader of the mob by the tinued: "There, I knew you would know who I coat collar. Harlan dragged the student back, meant without mentioning any name." Harlan "twirling him about, much as a bandmaster spoke on the importance of the Constitutional COURTROOM TO CLASSROOM 213

Welling's final act was to oversee the construction of Jurisprudence Hall a state-oHhe·art facility within the School of Law and Diplomacy, in 1902. It housed both the School, the oldest in the District of Columbia, rechristened in 1865 after several unsuccessful births earlier in the School of jurisprudence and Diplomacy, which had opened with great fanfare in including Harlan, taught both law students and diplomacy students. lawyer to American society; "as usual his University by making the institution's informal utterances were as he al­ affiliation a formal one, that ways the Constitution of the United it could attract money and endowment from States above all things," The Post sources. But the gamble did not pay For the School many citizens off and the affiliation was discontin­ "In such an institution as this ued. Whitman in an effort Washington may feel pride," a Post to secure support for the in editorial read 4 The new School's had and his beloved School of Diplomacy in par­ made the pages of nearly every to look for creative avenues for paper around the country, the mission fundraising. upon which the school embarked. He turned to the Washington Memorial Association, an organization foun­ ded in 1898 to raise money for the building Fundraising Efforts of a national university named after the first The School's most vocilerous was u.s. President. The was Columbian University Trustee and prominent Columbian would change its name Washington Charles Willis to the Washington and the who would succeed Rev. Whitman as Memorial Association would help raise money dent in 1902. Whitman had attempted to sal­ for the institution, the embodiment of General vagethe financial situation ofthe stipulation in his will 214 JOURNAL OF SUPREME COURT HISTORY shares of canal stock for the establishment of The situation did not The a uniwrsitv in the District ofColumbia. of Arts and Sciences and the School the Washington of Diplomacy still ran tremendous deficits in was l)Om, or, more accurately, 1904, while Medicine, and espe­ with the approval of the U.S. dally Law ran The next year, it to re-charter the institution that had only Diplomacy that continued to run a received its first congressional chmter in 1R21 but the shortfall was growing ever lan:!er /i'om renewed in 1873 as year to year. By I it was cleur Ihal reorga­ Columbian Justice Brewer gave thc nization was neeessarY'l\iecdham's address at the George Washington the School of Diplomucy. could not survive. first commencement in the winter Almostallunitsofthc University were celebrated on George Washington's deficits by the end or the decade.') Euch suc­ Brewer summcd up the hope and an­ cessive year the budget grew redder; Nccdhum that many felt in fulfill ing the dream "warned his Board [or Trustees] about incur­ of a He spoke of the glo­ ring debts, but kept on spending:'lo Disaster rious road thaI lay ahead. "George loomcd ahead. the testator, the of the United Slates the executor, the a uni­ Harlan's Lectures its domicile the District, its field oftoil the reach of its ever-increasing Harlan's regular Tuesday influcnce and the boundaries of space constitutional law were and time. Thc student nc\vspapcr most notably the one at the "Justice Brewer was cheered to the echo when semester on the decisions of ('hief he concluded his address. Few onlookers re­ whose name Harlan alized at the time that there was an additional shared. J J he many courses: do­ barrier in the future besides the mcstic relations, commercial law of ev­ "boundaries and time": the lack ofan torts, property, and, in the School of endowment. conflict of Harlan was most the renowned for his most ardent consti­ for the institution's tutional Jaw. He did not hesitate to discuss in future, In the law school ran an the classroom the contentious enormous and the Corcoran that he himself had dealt with as a jurist or that Scientific Schoo! and the Graduate School were now before the Supreme Court. The ap­ ran modest surpluses, the of the Constitution to the citizens of and Sciences und the School of acquired territories of Hawaii, the and Diplomacy ran deficits so and Puerto Rico, was a favorite that the surpluses created by the smaller units Harlan's experience was palpable, and were entirely swallowed Up7 The treasurer of the benefit to law students of participating the University the dire situation to in actual cases before an actual judge was the Board of Trustees: "For a number of years incalculable. the University has been run at a par­ Many of Professor Harlan's lecture notes tially by reason as the fact that two of our from his law classes are still extant, as the schools are weak in expen­ Justice planned to retire and write a sive to operate. He added, "From a busi­ textbook. He never did retire, remaining an ac­ ness standpoint this loss cannot be sustained tive member of the Court until his death in many years without serious embarrassment to 19 1, and the textbook remained an un­ the entire institution."g The was in fulfilled dream. He left behind his notes on the red. the historv of the Constitution, an assorted COURTROOM TO CLASSROOM 215 collection of exams, and pages ofthe Hawaiian Professor Harlan told torn out of law books with his notes scrawled his students: "The decisive question in this case in the as well as excerpts ofstate con­ was consistently with the Constitu­ stitutions, papers written his and tion ofthe United Mankicki could of bis own opinions and dissents. be tried in Hawaii for an infamous crime and collection of material an in- be sentenced to imprisonment ... after all the into the classroom life of Jus­ and of Hawaii had been ac­ tice Harlan, His course on constitutional law started Harlan's lecture notes from his commer­ with the of the document and the lives cial law classes have survived as well. His of the drafters, "We the of the United and are evident in his States," is penned at the ofhis notes, discussion on commerce the several underlined twice, with the word "Preamble" " the constitutional provision granting scrawled next to it. His first lectures each the to interstate com­ semester included discllssions of the Consti­ merce. "It is the power to that is, to tutional the Articles of Confed­ nrp",'rihp the rule by which commerce is to be eration of 178], and the powers to " he wrote. "This power, like all otb­ the states and to the federal government. His ers vested in IS in itself, lectures analyzed the role each institution of may be exercised to its utmost extent, and ae­ machine as a no limitations, otber than are pre­ by the processes that al­ scribed in the constitution."l6 Harlan's sense lowed the government to function effectively of humor was always when be and in accordance with the enumerated would read one of his sole dissenting in the Constitution. he would pause for a moment and then His exams were and add: "But of course I was wrong,"l7 "Whllt does interstate commerce The Columbiun Call, embrace?" he asked his students. "Define in the Illte I "What is to con­ Harlan:" law courses, "In viction of treason'!" "What is meant lure hall he to a ..:ertain extent, at his evidence?" "State far the paper wrote, "His and well

to Il man of power. His voice is resonant and not 'flat and itable' to the ear, When he delivers himself of process a conviction his seem to close over tricl the words as steel bars would not and declarations of war, them apart"l8 Some of his noles individual Harlan more than a prominent have also survived: DOlT United Slates 'with a successful career. He was also a unique United States (190 Delma a Wbig in the mold of and dozens ofothers. When a fellow Kentuckian, dis­ Civil War brought a col­ sents ill hand. For a discussion of Dorr Harlan joined the the history as the " with a xenophobic, anti­ izens ofthe He remained loyal to the sent to the Union and served as attorney gen­ eral and after the Civil War. 216 JOURNAL SUPREME COU HISTORY

he became a the extent that their busy lives would allow. twice ran for governor of Kentucky, Harlan occasionally participated as a judge of I was President Rutherford the law school, public debate 21 B. Haves to the US. Supreme Court. 19 forums Justice a slight man Harlan lectured to our class of who looked likc Harlan's physical opposite, two hundred members," one student later re­ wrote book reviews for the student newspaper called. "The spontaneity of the that on works related to the procedures and his­ marked the beginning and close of ofthe Supreme Court.22 a former was sufficient evidence of the ap­ probate judge, Kansas Court justice, the members had of him. The stu­ and circuit court judge, was, like Harlan, an dent remembered the Justice's confidence and independent voice on the Court. Brewer's sincerity when a student asked a question to recounts: "Of all the members of which Harlan did not know the answer: Harlan the Court during the Justice that he would look into the ques­ Fuller era, Harlan entered the most dissents, tion and reply definitively in the next class 283. Brewer was second with 219."23 session.2o "In his lectures all corporation law to Columbian students he is always accorded the most attention, and the classes are Brewer in the Classroom out to a man," the student newspaper wrote Both Justices Harlan and Brewer participated of Professor who also interna­ in university life outside of the classroom. to tional law to both Jaw and diolomacY students

The Columbian Call, the student newspaper pub­ lished in the late 18905, wrote of Justice Harlan's legendary law courses: "In the lecture hall he is, to a certain extent, at his best." Justice Harlan is pictured posing by a mirror. COURTROOM TO CLASSROOM 217

Justice David J, Brewer Oeft) also taught of courses at the law school. (right) wa s out of town, Brewer sUbstituted in his constitutional law class, Justice Brewer and Jus­ tice Harlan are pictured strolling near George Washington UrHVer!Urv. and occasionally took ovcr for Harlan's Consti­ Guiana in South added a real-life el­ tulional law class when his was out ement to his coursework in the law school. of town 24 "The is not one that The two Justices also a man much there but and tobaci.:o around the little humor to it, and yet he tells at times a pal though Brewer latcr resumed. Justice Harlan story that seems to fix the conclusion in your joked with his law school students that smok­ mind better than and tobacco were not is a true wit," the paper "conducive to the development of legal acu­ eyes twinkle when he tells a 25 Brewer men," the student newspaper "1 may enjoyed finding the students' be wrong, of course I am wrong, the other questions He once reflected that in the majority, but that is my it was "a satisfaction to ... be able to do them opinion."27 Whether it was on the law or on how to be Harlan had sat on the Bench for Harlan felt as much at home in more than twelve years before Brewer was ap­ the halls of education as he did in the halls of and would outlive Brewer by a year He did not know the great distress the the younger Justice was as future would bring, either for him or for the as Harlan. Brewer had the most life of which he was a part. judicial appointment of any of the Harlan's Son to the Rescue? rlP""'"",,, in international as president of the commission to arbitrate the The University in desperation border dispute between VencLucla and British over its lack of 218 JOURNAL OF SUPREME COURT HISTORY

With the school's finances in dire straits, Justice Harlan ar­ ranged for George Washington University to hire his eldest son, Dr. Richard Daven­ port Harlan, as its fundraiser. Pictured here, the Justice (left) poses with Richard (right) and their wives on the steps of Lake Forest College, of which the younger Har­ lan served as president for a short time.

Harlan for rescue. Harlan recommended that Princeton Theological Seminary in 1886, and they appoint his eldest son, Dr. Richard would serve both the First Presbyterian Church Davenport Harlan, to direct a fundraising ini­ in New York City and the Third Presbyterian tiative to guarantee the institution's survival. Church in Rochester, New York. Richard alone among Justice Harlan's three Of all the qualities that Richard inherited sons had chosen against a profession in the from his father, perhaps the most profound was law. The family was devoutly Presbyterian, and his liberalism, hi s devotion to a socially just, the Justice was supportive of his oldest son's egalitarian philosophy. He also remained close decision to become a minister. Harlan "consid­ to his Princeton colleagues; Princeton Univer­ ered the clergy's spiritual leadership ofthe peo­ sity Trustee Cyrus McCormick, who made his ple as important to civic virtue as the work of fortune in t.he agriculture sector, was also at liberty loving lawyers.,,28 All three sons grad­ the time the president ofthe Board ofTrustees uated from Princeton, but Richard was vale­ of Lake Forest College in Chicago, a college dictorian while the younger two, James and with Presbyterian roots. McCormick and his John Maynard, graduated only with difficulty all ies were seeking someone who shared their and prodding from their father. Richard was liberal conception of education to place in ordained a minister after his graduation from the presidency of Lake Forest. The Reverend COURTROOM TO CLASSROOM 219

Harlan seemed like natural choice. Mc­ wrote. Harlan will receive "world-wide honor Cormick and his were also deter­ as a factor in the of a of Princeton national in the capital of the United States.',31 The French ambassador liberal in that the endowment Richard Harlan came to the Lake Forest "The George determined to break the cannot hesitate and hold the elite fraternities had over the social has no choice-it will become famous and life of the student body. His efforts to force the be of use to the country as a nursery of fraternities to vacate their statesmen, and Such and move to campus, as well as the building visions. When of a hall to accommodate all male stu­ fulfilled, however, the faced resistance from the sons of benefactors turned These efforts, "conceived as a way of away schoo!. the promoting a kinship of col most dedicated stuck in motive and effect" and In the fall of I Richard Harlan re­ on those were met with hostility. vealed to the Board of Trustees the reasons President Harlan had difficulties with the fac­ the job. Of course, the tasks he per­ too: in 1905, the popular head of the formed in did not match his expe­ Department went so far as to resign his but the position "offered possibi lities of and his In indefinite usefulness here in near of Harlan's to become a pro- Disappointed with his unsuccessful ef­ forts to implement his reformist agenda at Lake Richard in December 1906. mark, turn­ rng a with elite dents living in on scholarship on campus, into a fully residential institution. Later ofLake received a poor sevenmce Forest would follow Harlan's lead. Forest Col and was tory has vindicated Richard Harlan's at wife's inheritance; he was the time his separation from the school was and did not hesitate to use his father's bitter. Thanks to his connections. not unemployed: he would be head Harlan also laid out his plan for of the Washington University Move­ the ultimate goal: ment," as President Needham's efforts to raise of the School of Jurisprudence much-needed funds were called, at the univer­ and Diplomacy in 1905 the School sity where his father and his brother of Politics and Diplomacy and in 1907 the James Harlan and cousin James Cleveland re­ of the Political both reo[­ ceived la\-v to historian reflect an attempt to balance the Yarbrough, "the hand in the budget of the department). Harlan's school's choice was hope was pinned on a piece of The students were welcoming of the Gallinger-Boutell Amendment Dr. Harlan: "The is most fortunate to the Morrill Acts of I which In the assistance of one so well nally land to be sold to raise funds fitted for this " the student newspaper for in each of the states. The 220 JOURNAL OF SUPREME COURT HISTORY

Gallinger-BouteJ] Amendment would extend independent of either George Washington or the scope of the Morrill Act to the District of Howard Universities, the two schools at the Columbia, and designate George Washington time seeking Morrill funds. Richard Harlan's University as the benefactor. dedication to the cause was praiseworthy, but Harlan deeply invested time and energy to he devoted a great deal of time and effort to get the Gallinger-Boutell Amendment passed, something that achieved poor results. He did personally lobbying members of Congress to manage to collect $1 ,000 from 1. P. Morgan and return to the District of Columbia the taxes other donations from alumni and prominent in­ paid by its citizenry on par with the resi­ dividuals, but these hardly covered the costs of dents of Maryland and Virginia, across the Harlan's setbacks, let alone operating expenses border. There were several obvious problems for the institution. with the Amendment's application to George And setbacks there were: the Gallinger­ Washington University. First, the CoLumbian Boutell Amendment would have provided University had attempted to reconstitute itself $40,000 to the George Washington Univer­ as a sectarian Baptist institution from 1898 sity for the first year, $45,000 the second to 1904, an initiative that resoundingly failed. year, and $50,000 each year thereafter, a sum Second, the University was, by tradition, a which surely would have saved the school. The whites-only institution, rejectillg its first black Amendment died with the end ofthe congres­ applicant in 1899. Thir(~ the law school still sional session, and there was little hope for prohibited women from enrolling. A sectar­ its revival after the financial situation of the ian, exclusive school was ineligible to apply University became public. Decades later, the for Morrill Act funds , and Richard Harlan and Morrill Act would be extended to Washing­ President Needham went to great lengths to ton, DC, but with the University of the Dis­ prove that the new 1904 Congressional Charter trict ofColul11bia as the recipient offunds, not was nonsectarian in nature, even prohibiting a George Washington. The failure ofthe Amend­ majority of the Board of Trustees from repre­ ment in Congress sealed the University's fate senting a single religious denomination. Still, as the first decade of the twentieth century the fact that not all of the District's citizens came to close: catastrophe was now certain. would be able to make use of the Morrill Act The University could no longer assure faculty funds hampered the institution's efforts to ap­ tenure and pensions, even for those professors ply for recognition. who had served the school faithfully for years. The student newspaper repeatedly ran ed­ The Trustees were forced to sell the property itorials urging the passage of the Amendment, donated by the George Washington Memorial noting that even Hawaii and Puerto Rico, two Association in 1904; in response, the Memo­ newly acquired territories, received funds un­ rial Association cancelled its promise with the der the Morrill Act. "The District has a just University to raise $250,000. Perhaps it was for and equitable claim for the appropriation; and the best: at the time the agreement was made in George Washington University has an equally 1904, the Association had only raised $\6,000. just and equitable claim to be designated as Many wondered if the ini tiative to rename the a depository for the District," the students school after the first president and the idea to wrote34 The bill passed the Senate unani­ start a college for training diplomats and politi­ mously and passed a House committee, but the cians had been mistakes. opponents ofthe Amendment, led by President The forced retirement of several pro­ Edmund James of the University of Illinois fessors caused the Andrew Carnegie Foun­ and the Association of State Universities, lob­ dation for the Advancement of Teaching to bied Congress instead to designate funds for revoke its donations to the University, a par­ a new university in the District of Columbia, ticular blow to Richard Harlan who had 220 JOURNAL OF SUPREME COURT HISTORY

Amendment would extend iUl;;pl:llUCm of either lJeorge washmgton or the scope the Morrill Act to District of the two schools at the Morrill funds. Richard Harlan's the cause was but he devoted a deal of time and effort to tbat achieved poor results, He did members of manage to collect $1,000 from lP. and return to the District of Columbia otheroonalions from alumni and prominent in- on par "vith the resi­ but these covered the costs of ano across the setbacks, let alone operating expenses several obvious institution. with the Amenomenl's And setbacks there were: the Boutell Washington Univer­ year, $45,000 the second year, and each year a sum which surelv would have saved thc schooL The Amendment died with the end of the congres­ :;ional and there was little for the financial situation of the became ie, Decades lalcr. the Morrill Act would be extended to President Needham went to ton, DC but with the Cniver:.,!tv of the Dls­ prove that the new 1904 trier ofColumbia offunds, not was nonsectarian in nature, even The failure ofLhe Amend­ of the Board of Trustees fate

.\01JI",1\jU':' denomination. decade of the twentieth century the fact that not all of the District's citizens came to close: was now certain, would be able to make use of the Morrill Act The University could no longer assure

funds hampered the institution's efforts to ap­ tenure and even for those no-r""OCA for recognition. who had served the school faithfully for years. The student newspaper The Trustees were forced to sell the property itorials the passage of the donated the Washington Memorial noting that even Hawaii and Puerto Rico, two Association in I in response, the Memo­ acquired received funds Ull­ rial Association cancelled its with the der the Morrill Act. 'The District has a University to raise $250,000, Perhaps itwas for and equitable claim for the and the best: at the time the was made in George Washington University has an equally I raised $16,000. just and equitable claim to be as Many wondered if the initiative to rename the a for the " the students school after the first president and the idea to wrote.34 The bill passed the Senate unani­ start a college for diplomats and and a House but the cians had been mistakes. opponents ofthe The forced retirement of several pro­ fessors caused the Andrew and the Association ofState Universities, lob­ bied instead to funds for revoke its donations to the a new university in the District of Columb ticular blow to Richard Harlan COURTROOM TO CLASSROOM 221

courted philanthropic The underwent tremendous reorga­ support while of Lake Forest Col- nization, Ernest G. Lorenzen became dean­ Each setback l:aused a round of reS~l!nla­ elect of the law school, though he did not last tions from the Board ofTrustees. "The of tor more than several months, Trustee the even of the Univer­ Snow was otlered the but he sity , The sad state refused it in favor of Admiral Charles Stock­ of the institution's financial structure was ton, an old Civil War veteran, who became the ninth Univer­ in November 1910. Snow's wife became ob­ had not been fond Justice Harlan, and she vious that President Needham was nm candid about Ihe state of the

Foundation in an to renew the relation- the institution "if it saved. she made with the benefactor. up attock on Justice Harlan: "You

George Washington Unillersity was forced to sell its law school (small building to the left of George Washington University) in 1910 in the wake of years of gross financial mismanagement and in the face of an investigation called for by Congress. Justice Harlan retired prematurely rather than take a considerable pay cut. you can for us, and remain with itself ifwe all consent to make the nec­ as as you feel that you can us the sacrifice."43 Justice Harlan's son John benefit ofthose lectures on Constitutional Law Harlan telegraphed his father from him not to until the letter he my own student days in the I Two put in the mail. John letter was later, Lorenzen sent Justice Harlan a letter rushed and severe: "I do not know any of the for a reduction in from $2,400 to details of the proposal made to you, or indeed $1,500: "We lament the of this step, whether any definite and has but we see no alternative. been " he wrote, "But 1 understand from of the University at that this may have Richard, .. that wished further and very been the most truthful statement uttered an to reduce your and even for administrator. the reduced amount you to be satisfied with Harlan could not the offer imme­ some as to payment. John he told Lorenzen and several other Maynard's is off the mark, his he needed time to think the propo­ father that the law department ran a surplus sition over, to reassess his financial situa­ and could afford to pay him: "I decidedly ob­ tion and to reconsider the satisfaction teaching your services at your time him. Still, one compensation, and tried to Harlan to "We cannot of what the law school lose you. It means too much. But you can see but also a part of what should go to the situation. The in a criti­ for the support of other cal state. But we believe that the law school can ments." The fact of the matter was, COURTROOM TO CLASSROOM 223 that there was no surplus. In fact, there was Noble who replaced Lorenzen as not even a law school anymore: the dean of law school in 1911, would turn University was the top two floors of around. Suffice it to say that there is the Masonic Temple in Washington, DC. no building named after Needham, but John Maynard Harlan his father to Stockton Hal has been the home refuse to take a cut in to demand that of the law school for more than the law school not support the finances of the years. administration in any way, and to But the insult inflicted on a senior mem­ be strict in making sure that the fol­ ber of the Court an administra­ lowed the letter of his contract. "It will not do at tionthatcontinuous~ mi~udgedand all to allow Snow or his termagant wife I resented the truth until it unraveled is surely think is crazy) to have the impression that he or one of the darker episodes IJ1 the Univer- the management (of which After Harlan's the he is the active and person) has pre­ law school students wrote a scribed the terms for your continuing in the law the student newspaper school," John wrote. "You may most renowned "rr'TP'OC" upon it that any yielding upon your part would institution: be seized upon by that crazy woman and her His cowed husband and a wrong face to put upon His it to others."44 Four Justice Harlan unique. issued his School will miss, may One board member regret at not know it, the stories by way Harlan's but noted that it was "both of illustration with which Justice for you to husband your Harlan enlivened the lecture hour, the " in from law school work. shots at the British Harlan shot back: "This is a mistake. health an institution-the kindly sarcasms, is and I had intended to continue my work apropos of smoking, tardi­ as Lecturer on Constitutional Law as as it ness, and other vices to which was possible to do so, or as long as the Univer­ sity wished my services. The work interested me and after twenty years ofser­ the rugged vice as Lecturer I had come to feel great inter­ and est in the future ofthe University," he replied 4s manners, the But Snow's letter, the forced of thought which made the students tion of Ricllard Harlan from his and like him. Justice Harlan the reduced had convinced him that he stands for old-fashioned Amer­ was no longer wanted. The new chairman of icanism. [ ...J the Board of John Bell was But we are not writing a eulogy.... blunt in his over We salute you, sir. Here's you the reduced salary: "It was merely a may be the next Chief Justice of the of the Law SchooL"46 Court.47 Washington nearly failed in 1910 because of singularly weak But a new generation of admin­ CONCLUSION with Admiral Stockton as President served without John Bell Both Charles Needham and Charles Stockton Lamer as Chairman of the Board, and Charles served for eight years at the helm ofthe George 224 JOURNAL OF SUPR E COURT HISTORY

But the two men cou Id not have been more different Needham a young, idealistic dreamer; Stockton was war veteran, a builder. Stockton meticu­

" The UniFer:,ifl' Hale/If!:!' March I. to a new home in on borrowed money, where the Budget Summary, Board of Trustees Minutes, as a testament to Stockton's resilience, still June 1R. 1902. survives today. On his watch, the specter of 8Rcport ofS.W Woodward, Treasurer. Board of Trustees Volume 6. June 1S, 1902. war became war and still he contin­ SumlTIaries, Board of Trllstees 'vEnutes, Vol­ to save, to defend the em bod- Nov 6, 1904, Oct 16, 1907, 1908.

microfilm. ilarl,m Papers, the institution's Harlan's legacy is not only in the courtroom; it is also in the class­ l4Harlan, John Marshall Dissent in Dorr v. Uniled Siales, 195 US 138 (1904). room: his commitment to teaching led him to 15See Harlan's lecture notes on Hmmii v. Mankichi, 190 carry a fult-time load as a orofessor while he US 197 (1903). Harlan Papers, Library of Congress. was a sitting member of the Court. l6Commerciai law nOles. Harlan Papers, Library of And an of Harlan's Congress. evidence of his commitment to the 17Almon C. Kellogg to Richard D. Harlan. May 27, 1930. Constitution of the United States. l8"Justice oflllc Kentucky Lawyer Now an "The work which I have Honored Member orlhe Supreme Court." Columbian lecturers in the has been a Call. (Vol I, No.8) 9, I labor o flove," Harlan later reflected .48 Perhaps 19Yarbrollgh, Tlllsley Judicial Enigma: The Fir-st Jus­ he received no in his ca­ tice Hal'lan. New York: Oxford University Prc"" 1995. reer than when a young student with bright, 2oAlmon C. Kellogg to Richard D. Harlan. May 27. 1930. Harlan Papers. University of Louisville. warm eyes ~l"First Public Debate." The Washington POSI. Nov. 24, Constitutional Jaw lectures one 1901. said: "Sometimes, I am not, 22"Book Reviews." The Universi()! Hatchel. Dccc'mber 21, as good an American as I should but after 1905.p.l. one of your talks the man doesn't live who can 23 Brodhead, Michael 1. David J. Brewer: The Life of a Supreme Court Justice, 1837-1910. Carbondale: South­ excel in honest love for my and her ern Illinois University j 994. p. 80. people."49 10, 1908 p. 5. Columbian ENDNOTES School on Corporation Law." Co/umlnan Call. (Vol. I. No. 10) Jan. 23, 1896. p. I l"Arbitration of Class Trouble At Columbian. Wash­26Brodhead, Op. Cit. p. 132. ing/on Times. October 23, 1902. "Stopped A 27"Law." The University Hulchel, Oct I 1908. Fight: Justice Harlan Overpowers Belligerent 2SPrzybyszcwski, Linda. The Republic According to Washington Pas!. October 24, 1902. John Marshall Hal'lan. Chapel Hill: University of North 2Kayser, Elmer Louis. Bricks tJ''illwu/ SIIVW: The E,'o­ Carolina Press, 1999. p. 199. IUlion of rhe George IVashil1glol1 Universily. New York: 29Schulze, Franz, Rosemal'Y Cowler, & Arthur Miller. 30 Appleton Century Crofts, 1971. Miles North: A History of Lake Forest College, Its COURTROOM TO CLASSROOM 225

Town and lis City of Chicago. Lake Forest, IL: 41Letter from WalterC. Forest College and University of Chicago 2000, 1910, Harlan Papers, Library of p,86, from E,G, Lorenz",n to 1M. Harlan, June 27, 1910, IOYarbrough, Op, Cit p, 206, Papers, Library of Congress, 31"D[' Richard D Harlan Conduct Campaign For 4JLetter from Clephane to 1M, Harlan, July l, for the Umversitv Hatchet, April 1910, Papers, Library of Congress, 11,1907, p, I. 44Letter from John Maynard Harlan to John Mar­

,1USScr;1fHl Writes of Encouragement to Dr. Harlan." shall Harlan, July 19, 1910, Harlan Papers, of The Ul1Iversity Hatchel, May 30, 1907. p, 6, Congress. JJLettcr from Richard Harlan to Board of Trustees, Board 45Letter from A,S. Browne to JM, Hari1m, July 26, 1910, of Trustees Minutes, Volume 6, Nov, 10, 1908, letter from J~L Harlan to A,S. Browne, Jllly )tEditoriaL Dec, J909, p, 4, 1910. 46Letter from J R Cit. p, [99. Harlan University )7Letter from John M, Harlan to Dean May 28, 1910, Papers, Cniversity Louisville, from Margaret Snow to John M. Harlan, 26, years, 1910-1 1, the Universi(l' changed its 1910, Harlan Papers, of Louisville, to The Washington 39Letter from E,G, Lon:nzen toJM 22, 1910, 4RLetterof John M, Harlan Richard Cobb, Jan, 9,1911. See also, ktter from JM, to Lorenzen, June Papers, Library of Congn):;s. 1910, Harlan Paper" Library of Congress 49"'!ustice Harlan: Sketch of the Kentucky Lawyer Now an 40Lettc'r from C Needham to J.M Harlan, 17, [909, Honored Mcmberofthc CS Supremc Court" Columbian Harlan UniverSity of Louisville, (VoL I, No, 8) Jan, 1896. Terrorism and Habeas Corpus: A Jurisdictional Escape

'OJ'I'V1.U' FAKHIMI

the events of September 11, Congress authorized the President to "use all nec­ essary and force those nations, or persons he determines planned, or aided the terrorist attacks ... or harbored such or persons."i grant of authority, a surfaees as to whether a person whom the President has determined to have olanned, authorized, committed or aided the attacks has an absolute habeas corpus for those held i """,,,,.,.,, With

Fundamentally sons can be divided into those which are ab­ national emergency. It is a fundamental propo­ solute and those which are where the sition that since the law is the final arbiter of "which every person's life and the courts of are so in their primary and strictest sense; such justice should at all times be open for redress as would belong to their persons in a of injuries2 In light of it vvould be illus­ state of nature, and which every man enti­ trative to examine the evolution of this conflict tled to enjoy whether out of over the making ofsuch determinations in trou­ These absol ute bled times. It should be noted at the outset that has that of course, would there is no other known method of any as to the legality of or of abridging man's natural free TERRORISM AND HABEAS CORPUS 227 but the or diminution of one as a "writ of " in that wherever it could or other of these important rights, the preser­ be shown that a be said to must be othen:vise

time of the celebrated constitutional eontro­ scventeeth the writ had out accusation eminence in constitutional whern notorious all In his urgument at the conference be­ convey the alarm of tween the Lords and Commons in I calls whole in law for any man that

natural­ the And in ::l.l­ or the execution of most every colonial without the consent of par- and IS ,,7 It should be noted and immunities were insisted upon. IS In Con- that the "original power of judicature, by the in I it was enacted that life, fundamental society, is III and were the , and that justice is not de­ to be free from governmental assault unless rived from the government or the courts, but virtue of law, as determined a court. 16 rather, are "the steward the public, to In in 1689, application was it to whom it is due."g made for a writ of habeas corpus to Judge a violation of this Dudley, who was later sued for arbi­ would neccssari Iy be effected by the trarily refused it. 17 In New York, in 1707, two false which the law has ministers were arrested on a war­ viewed as criminal and has also afforded rant from the Governor for without a license, and on bond and would preach no more were to civil action9 18 An was made to four writs available to remove this 10 but said "the and efficacious writ in all manner of is tiull of habeas COI"­ on the basis that the warrant un­

IL"'flU"If' "II This writ is described der which the were confined did not TERRORISM AND HABEAS CORPUS 227

but by the nat'm,f'nt or diminution of one as a "writ of " in that wherever it could the preser­ be shown that a was without be said cause, the writ could not be but ",.('""rVClTnH> of our civil immuni­ must be to every man or most extensive sense."4 otherwise restrained. even if order of the it simply his council. From the fifteenth cen­ as a the common

Im­

that

",-rmprhr at the

lease IWI'«'''I''-<: had and time of the celebrated constitutional versies of the seventeeth thc \Hit had out aCCllsation or and ",y"n,,,,,,'.' in constitutional whern notorious an act Selden. in his argument the conference be- convey the alarm of the the Lords and Commons in 1628 calls whole ... but confinement ofthe per- in law for any m~1I1 that

are unknown or is public, a less and therefore a morc claimed to possess "allihe as long ago declared by statute, and immunities of frce the "pretended power of or dis- within the realm. or the execution of most every colonial without the consent of par­ and liament, is illegal."] It should bc noted and immunities were insisted upon,lS In Con­ that the "original power of judicature, necticllt, in 1650, it was enacted that life, fundamental is In and were the society at is not de­ rived from the or the courts, but virtue of law, as determined by a court. are "the steward of the public, to In in I application was it to whom it is due."g made for a writ of habeas corpus to Accordingly, a violation of this who was later sued for arbi- would be effected by the In New York, in 1707, two false imprisonment, which the law has always ministers were arrested on a war­ viewed as criminal and has also afforded rant fr0111 the Governor for without vate remedies to the party in the ac­ a license, and on refusing to bond and tual confinement and subjecting the offender that would preach no more were to a civil action.9 there been sent to prison. I~ An four writs available to remove this injury, 10 but :Ylompcsson, "the and efficacious writ in all manner in America, for a writ ofhabeas corpus, which of confinement, is that of hah/!{/s cor­ he granted the basis that the warrant un­ "II This writ is described der which the prisoners were confined did not 228 JOURNAL E COURT HISTORY

The drafters of the federal Constitution adopted a provision allowing for suspension of the privilege of the writ of habeas corpus in cases of rebellion and invasion if the public safety requires it. Within twenty years. the Senate sought to exercise the suspension power in response to the reported conspiracy of Colonel Aaron Burr. Burr is pictured dueling with Alexander Hamilton.

any offense. 19 In New in 1710, should have a man imprisoned on less Pin horne was denounced able in those, than in other emer­ bly for corruptly an let him be taken and retaken writ of habeas corpus, which was declared by while the the to be the "undoubted right and the government for privHege."2o .,n The provision that was The Articles of Confederation contained allowed for suspension of the no provision regarding the writ, and since they of the writ in cases of rebellion and inva­ had been found otherwise a con­ sion if the public safety requires it; and within vention was assembled at Philadelphia to re­ twenty years, the Senate sought to exercise the vise them. Of the many drafts proposed for the power in response to the ,."''''''-.''''' new Federal of Colonel Aaron Burr. Under the new Constitution, it was determined that the Supreme Court could son was among those of the opinion that the the writ. In I a case came before it writ should never be asking on one way ofa petition for writ of habeas corpus di- occasion, "Why the writ ofhabeas cor­ to the Court, by a confined in pus in insurrections and rebellions[?] ... [I]f the District ofColumbia, that his cause the public that the government of confinement be scrutinized and its legality TERRORISM AND HABEAS CORPUS 229

considered. 25 The noted that he had not been with any crime and was oppressive order behavior tor broken jail, it would have been no escape, for the marshal is not certain be contained in the warrant month the Court had considered case of a militia officer sued a the peace for into home to collect fines imposed a court-martial. The Court held that "a court martial has no over that a decision ofsuch a clearly without its

the officer are all trespassers. Court found itself again its habeas When Samuel Stacy, Jr. was arrested as a spy by mil­ itary order in the War of 1812, kept in confinement, and not informed of the cause of his arrest and deten­ tory 28 The case was tion, he petitioned the Supreme Court habeas relief by two n ..... """''',c of Judicature of New York for a writ of habeas cor· pus. But Morgan lewis commander of the of treason; and the troops of the United and to Whom the writ was directed, simply replied that was not in his custody. dent gone into an examination of the evidence upon which the commitment was o:r(HlI1tde,cl.. will to do that which court below

In June 181 Samuel a natural- born was arrested military similar to Wise kept in confinement, and not informed Court of New in favor of an­ of the cause of his arrest and detention 30 He other citizen who had an action for as­ petitioned the Court of Judicature of sault and battery as well as false New York for a writ of habeas corpus, which his military jailor, observed that none was granted and directed to Lewis, of the offenses under which the prisoner was commander of the of the United charged were by a court-martial. who simply returned "that the within-named The eourt further stated that the and the Samuel Jr., is not in my custody."'! This responsibility of the defendant must be gov­ was found evasive by the court, that erned the rules of "he ought to have stated, ifhe meant to excuse of and limited himself for the of the of such a court has neither jurisdiction of the the was not in his or power. The court went on to character­ ize the government's that was a spy and a traitor as irrelevant, that 230 JOURNAL OF SUPREME COURT HISTORY

James Kent served on the New York Supreme Court during the War of 1812 when many note­ worthy cases arose with regards to habeas juris­ diction. In Stacy, Kent expressly approved of habeas petitioners nam­ ing a respondent that had the power of control over them, rather than one simply having im­ mediate custody. of Louisiana considered a suspension of the from the ci ty38 After the repeal of martial law, writ. Unable to wait for their deliberation, Judge Hall summoned General Jackson to an­ General Jackson placed their city under mar­ swer for the contempt ofarresting a judge, and tied law, thereby placing in effect a practical fined him one thousand dollars. 39 suspension of the privilege of the writ.36 He Sh01ily after the outbreak of the Civil then proceeded to arrest for an alleged act of War, an application for the writ was made mutiny a member of the legislature, who sub­ and granted in the name of a Maryland resi­ sequently applied for and was granted a writ dent who was seized in his home by an armed of habeas corpus by Judge Hall of the United force and summarily imprisoned by military States Court.37 Considering obedience to the authority that subsequently refused to show writ as an interference with hisjurisdiction un­ obedience to the habeas corpus40 Chief Jus­ der martial law, the General ordered the arrest tice Taney was astounded by the government's of Judge Hall and directed that he be removed claim that not only was the President invested 232 JOURNAL

In lB62, the Court of Wisconsin heard cases from soldiers who had been arrested in a riot at Camp Randall, After consolation in the fact that the Supreme Court remedy any error it might commit, the state supreme court held that the President had no power to suspend the writ of habeas corpus and subject the citizens of Wisconsin. by martial law, to punishment by military commission for resisting enforcement of the draft.

before the Act of in all circuit court cases involv~ an exercise of original jurisdiction, where nri"oner was for an inquiry into the ofhis detention and remanded to the cus­ he was taken. the

habeas corpus and certiorari re­ view the decision of the circuit court and re~ lieve the from the restraint to which he was remanded.6o In I nine years after the decision of the Wisconsin supreme court in the U.S. Supreme Court considered whether state action of a circuit court in a habeas corpus cial officers should have jurisdiction to issue The Court maintained that any writs of habeas corpus and order the substantive of persons held under color ofauthority of the decide upon, its own jurisdiction, United States6J The Court held that the could be revisited in the Court on dicial power assumed in order to conduct a from its final judgment.s7 Two years habeas proceeding in state court with the Court held that, under to a federal prisoner has never been conferred the Act of March 27, I and the Judiciary on state judges by the United States. and since TERRORISM AND HABEAS CORPUS 233

the state,> themselves do nol have such a power there been no jurisdiction over the per­

Vvl";;""''-', state arc not authorized to son ohhe volunteer officer or the mat­ issue the writ federal A morc tcr of the charges the Court ex­ the di,,~ held that consent could confer no such ofslale a new class courts 10 issue the writ never within the of habeas corpus cases the rights of ofthe Framcrt' of the Conslitu­ persons ofChinese to enteror re-enter "in a arose in the federal 70 Gen­ ~ood ilie iliat the President was invested with any authority final adjudication In however, the COllrt narrowed the scope of habeas the inverse ofthat same that before a writ would is­ ficers in stale had to be satisfied that the pe­ a federal officer out a prima facie case71 dissent in case advocated the tradi­ tional scope of habeas out that it would be wrong to a party a that the court did not it that he could establish the and on habeas eorpus issued court of the U nlled for the Dis­ trict Columbia considered the distinction which he is and control in the context of held. habeas nrr\('p,'CII In In 190 I, the distinction between and control in the context of habeas n,·r,,"""~"_ ings was addressed in New York through a child case, where the party whose re­ that the place ofconfinement is not relevant to lease was sought was outside the state66 In a habeas all that matters is that someone statement to its holding, the New be found within the reach ofservice York court stated that if"the person whose re­ such that the power of the court he can be lease is is without the neverthe­ compelled to release his grasp.,,74 less, the court has to issue the writ In 1942, the Court considered the denial of if the facts show that the person to whom it filed in the District Court for the is directed may have the control of the person District ofColumbia for leave to file petitions confined, or may be able to the command for habeas corpus by the of the court by producing him of the commission under The year, the US. Supreme the authority of which they were to Court considered a challenge to the imprisonment and trial. 75 The acknowl­ tion of a court-martial by a petition for habeas that the had been corpus in federal court. c,x The Court held that of the the should be released since matter on the return, chose instead to consider had members of the volunteer army and determine whether the facts by the outside the of and if true, would release of the TERRORISM AND HABEAS CORPUS 233 the states themselves do not have such a power there having been no jurisdiction over the per­ to del egate, state courts are not authorized to son of the volunteer officer or the subject mat­ issue the writ as to federal prisoners.62 A more ter of the charges against him, the Court ex­ generous approach was submitted by the dis­ pressly held that consent could confer no such sent, claiming thaI a denial ofthe right ofstate jurisdiction.69 During this period, a new class courts to issue the writ was never within the of habeas corpus cases invol ving the rights of contemplation of the Framers of the Constitu­ persons ofCh inese ancestry to enter or re-enter tion and might amouot to a suspension "in a the country arosc in the federal system 70 Gen­ large class of cases."63 erally, they stood against the proposition that Having cstablished that state courts could the President was invested with any authority no longer inquire into the legality of federal to render or delegate final adjudication regard­ detentions by habeas proceedings, the Court, ing life or liberty. In Sing Tuck, howcver, the in 1890, reserved for the national government Court narrowed the scope of habeas jurisdic­ the inverse oflhat same power as to federal of­ tion by holding that before a writ would is­ ficers in state custody, upholding the release of sue, the court had to be satisfied that the pe­ a federal officer from state custody by a writ titioner could make out a prima facie case 71 of habeas corpus issued frol11 a U.S. Circuit The dissent in that case advocated the tradi­ Court.64 The reasoning submitted by the dis­ tional scope of habeas jurisdiction, pointing sent, however, claimed that "if a prisoner is in out that it would be wrong to deny a party a the custody of a state courf of competent ju­ hearing on the grounds that the court did not risdiction, nol illegally asserted, he cannot be believe it probable that he could establish the taken from that jurisdiclion and discharged on claim he made72 habeas corpus issued by n court of the United In 1938, the Court ofAppeals for the Dis­ States, simply because it is believed [there that] trict of Columbia considered the distinction he is nol guilty of the offence for which he is between custody and control in the context of held.,,65 habeas proceedings. 73 In considering whether In 190 I, the distinction between custody a writ may issue in an instance where the con­ and control in the context of habeas proceed­ finement occurred outside the territorial juris­ ings was addressed again in New York through diction ofthe issuing court, the D.C. court held a child custody case, where the party whose re­ that the place ofconfinement is not relevant to lease was sought was outside the state.66 In a habeas relief; all that matters is that someone statement peripheral to its holding, the New be found within the reach ofservice ofprocess York court stated that if"the person whose re­ such that "by the power of the court he can be lease is sought is without the State, neverthe­ compelled to release his grasp.,,74 less, the court has jurisdiction to issue the writ In 1942, the Court considered the denial of if the facts show that the person to whom it applications filed in the District Court for the is directed may have the control of the person District of Columbia for leave to file petitions confined, or may be able to obey the command for habeas corpus by plisoners challenging the of the court by producing him."67 jurisdiction of the military commission under The following year, the U.S. Supreme the authority of which they were subjected to Court considered a challenge to the jurisdic­ imprisonment and trial. 75 The Court, acknowl­ tion of a court-martial by a pctition for habeas edging that the customary procedure had been corpus in federal court.ug Thc Court held that to issue the writ and to hear and dispose of the the prisoner should be released since Congress matter on the return, chose instead to consider had placed members of the volunteer army and delermine whether the facts alleged by the outside the jurisdiction of courts-martial; and petition, if tme, would justify release of the 234 JOURNAL OF SUPREME COURT HISTORY

The Nazi saboteurs conceded that they had been off by German submarines under orders from the German High Command to commit acts of espionage, but pleaded that they had neither committed nor intended to carry out any such acts, raising questions of habeas corpus. This cartoon features a sea monster labeled "Nazi Saboteur" coming ashore in June 1942.

without the writ The Court taken the Court the In determined the commission would Walker. undoubtedly to try enemy bel­ During the two years, the Court for acts in violation of the laws of consistently held that imposition of should attach to the curfews and exclusion orders virtue of their status as enemy sons of Japanese ancestry were behind our defenses "in ble exercises of the war power, because the circumstances of the war afforded a substan­ tial basis for the military'S conclusion that purpose had not existed. The reasoning in persons of Japanese differ­ a further constriction of entiation from otbers.n As these various de­ military jurisdic­ nials of personal were virtue of the charge no issue of habeas jurisdiction arose until the that was tendered and of the peti­ government's activities tIOners to the government's deter­ Americans matured into internment and deten­ mination as to their status as saboteurs or spies. tion. In 1944, the Court considered a denial of This was a significant deoarture from the ap­ a writ of habeas corpus by a TERRORISM AND HABEAS CORPUS 235

The Court held consistently that imposi­ tion of military curfews and exclusion or- den. against of Japanese ancestry were exercises of the war power, but no issue of habeas jurisdiction arose until the government's activities concern­ ing Japanese Americans matured into in­ ternment and detention.

American who was "evacuated" from her home the commission that in Sacramento and subsequently detained in had military custody pursuant to Executive Order ,'''.''''',"'''., army, rather lhan No. 9066. 79 The Court viewed the not in an act, thut it determined amounted to a viola­ terms of the validity of the regulations them­ tion of the laws of war. gl The petitioner's pro­ but in terms of their applicability to the cedural did not convince the Court As such, it considered her habeas that due process of law applied to any person in light of the purpose of the regu­ accused of a crime by the United States. 82 A lations and ordered her unconditional release few weeks hons military commissions citizen.so From trials oftwo civilians with civil result in Endo turned on the fact that the reg­ ulations under which Endo was detained were to ferret out Japanese Americans who rather than civilian courts, were thus, the could not discharged. The detain her pursuant to those Court held that the term "martial as em- the same time concede that she was in the Hawaiian Organic Act84 and un­

In February 1946, the Court rPIf'C'fF'n der which the commissions operated, did not the "supplanting ofcourts by l11il­ of habeas corpus and tribllnals."85 236 JOURNAL OF SUPREME COURT HISTORY

1wo years the Court eon~idered the reach of a federal district court's habeas ju­ risdiction with regards to detained trict court that has territorial over the territorial of the dis­ person with power overthe immedi­ trict court but under the control of someone ate custodian. This was a remarkable opinion found within the court's service of process. in that oetition did not The Court held in light of certain statu­ tory 87 the dislrict court would not have jurisdiction to issue the writ if the tiOller was outside the court's territorial lim­ of where a rcsnOJnm~n be found. Sg Later that year, the Court consid­ termination of their should be made in a ered applications for leave to file court of the United and that any mea­ habeas corpus by a number of citizens and rcs­ the !?ovcrnment of the United idents of It denied habeas in on grounds that the tribunal that had sentenced the limitations in the Constitution. them was by General MacArthur in The next year, the Court his capacity as Commander of the so, the Court Allied Powers89 Satisfied that the tribunal that of the Courl of

re­ and sen tences. 'Iii "such trials year, on behalf of himself Hid and comfort to the , (b) that a resident en­ a custody in Germany emy alien would only be entitled to a judicial for writs of habeas corpus in to determine whether he was really an the District Court for the District of Columbia, alien enemy; and that a nonresident enemy the alien did not have any access to our courts. Furthermore, since the Court found no basis for the invocation of federal judicial power in misscd the action based on the authority of any it did not consider the issue as to and the Court of Appeals reversed. 91 which court would be for habeas The Court approached the issue proceedings an extraterritorially de­ whether the were tained petitioner9g entitled to the writ as a matter In a case arose that compelled the whether a federal jurisdictional statute could Court to the territoriality deny them the and (c) if were not it was though to have mandated in Ahrens. In deprived by the statute, in which court their pe­ so it stated that Ahrens no longer stood tilion would lie. Its answers were: that any for any broader than that the ap­ person who could show that their liberty had forum to entertain the applications of been denied in violation of the Constitution on Ellis Island would be the Eastern officials of the United States was entitled to District ofNew York, rather than the District of the that if a person had a to the Columbia99 The Court held that a literal read- writ, it could not be denied due to "an omis­ of 28 U.S.c. § required only that sion in a federal and the court issuing the writ over if a person is detained outside the custodian. and that as TERRORISM AND HABEAS CORPUS 237

reached by the court's service of process, the him, except by the lawful judgment of his peers or by the court could issue the writ even if the law 0 f the land"). was outside its territorial limits. loo 61d. at 131-32. 71d. at 138 (cjting I W. & M. 2 and further pointing Thus, it appears that somewhere along the out that "not only the substantial part, orjudicial decisions, way two views have as to of the law, but the formal or method of procced­ how one to view occasions on which the ing, cannot be altered but by parliament: for if once those government claims it nece",sary to detain indi­ outworks were would be no inlet all viduals without due process of law. The view body it is tille, may taken by the Court in v. lOl must proceed according to the old established form orthe Forrestal would extend habeas jurisdiction common law"). under authority of 8{d. at 257 (quoting Bracton, L tr. of where that de­ crealUs e.Y/ et eiec/lls. LlI jus/iliam iilcia! " for tention takes place. Since that view has been the propositlon regarding the king: (hat created soundly extraterritorial imprisonment and clec("d for this very purpose, in order that he render ju,tice to all). alone would seem to afford the President final 93 lei at 127 28. authority the life or liberty of any­ IOlcl at 128-30 (enumerating them as: the writ of main­ one who may find themselves detained in such prize, used when a prisoner was held for bailable offense a manner,I02 the writ de (Jelio el alia, used It would seem the right set prisoner charged with murder, the of circumstances, of the his­ toric efficacy of the writ" may become >"p"'/""muln originally a writ to to summary destruction. Under such "replevy" a man out ofprison, though almost entirely anti­ circumstances which are not entirely beyond quated by the is not unreasonable to wonder if even a remedial Act of Congress clerlclum, could, in the words Hallam to another; nal'eax cot(JUS ad satisfaciendum, used tor the intended effect ofthe habeas corpus statute removnl ofa him, ofCharles II, serve to "cut off abuses by which higher court for cxe<.:mion ofrhe judgment; Ilabeas corpus the lust of power, and the servile ad pmsequ(mdllm. II'¥li/icandlilfl. delihemndum, &c. used had impaired so fun­ to remove prisoner who is t,l prosecute or give testimony damental a in any court, or to be tricd in the jurisdiction where the events occurred; corpus ad/aciendum el recipien­ dum, issuing out of the courts of Westminster Hal! ENDNOTES command to the judge of an inferior court to produce body ofthe defendant sued therein, who to L J 15 224 18,2001) United States Armed persoll I Wilham Bbckstone, Commentaries 137 (quoting from detaming another, and commanding him to produce ofSir Coke's Institutes ofthe Laws of body ot'tlle prisoner with the day and cmnmpnlln" on Magna Carla at c. 39: H[AJnd bubject for injury done to him. . without dltlll. to do, submit 10. and receive, whatsoever the Juuge take his rem~dy by the course of the law, or court awarding such writ shall consider in that behalf"). and bavejustic,e and righl for the injury done to him, freely t2[d. at 133 without sale, ful iy withoul deniaL and speedily without t3! WIIltam S. Holdsworth, A Histol'Y ofEnglish Law (17 delay"J. Vols) (Jth Ed. Revised 1956) (190J) at 227. 1B lacksrone, sl/pra note 2, at I 19. J4] Rollin C Hurd, A Treatise 00 the Right of Personal 41d. at 125 Liberty and on the Writ of Habeas Corpus 92-93 (Oa Sid. at 130--3 I (citing Magna Curia at c. 39: "No freemen Capo Press 1972) (18l5). shall be taken or imprisoned or dissci,cd or exiled in 15 J Joseph Story. Commentaries on the Constitution of way destroyed, nor will we go upon him nor send upon the United States § 122. 238 JOURNAL OF E COURT HISTORY

16Hmcl.llIpru note 13, at it became onhe 509, "No man's life shall be taken away, opened to or good name shall be stained, no man', pCl',on shall be a motion was made for of the btll arrested, restrained, banished, dismembered nor any unworthy of consideration, which prevailed by a vote punished; no man shaH be deprived ofllis wife or children, of 113 to 19), no man '8 sball be taken aWay I\-orn hi 111, nor v, Humillon, 3 US, (3 Oal!.) 17, 18 (1795) (Wilson, any ways indamaged under color ofJawor counlen31WC of 1) authority, unless it be by virtue or equity ohome Burjiu'd, 7 US. (3 Cranch) 448, 449 1(1806) the established (MarshalL C),) (relating the case of John Burford, who, published"), having been arrested and brought before Judge Thompson. was committed to prison and required to right to dollars as a bond for his or the could be reku;,cd; the Columbia, upon 181d at 100, to jail, reducing the bond 191d, at 100-101 (relating that the warrarJt re­ 26!d, al452-53 (wmg Sir Edward formed 10 specify an offence, the prisoners were admitted tute at 52, 53), to bail, and the only one indicted of the charge was tried 27 Wise v, ~lll"('rs, 7 US, (3 Cranch) 336-37 (1806) and acquitted), (Marshall, (.1,), 201d, at 100, ?SEx pari" Bollman, 8 US (4 Crunch) 75, 93-101 (1807) 21/d, at 107-10 (citing I Elliot's Debates 375 and 2 El­ (Marshall, CJ,) (reviewing the question in light of the 14'h liot's Debates 108: A May 29 th draft from Mr. Pinkney section of the judiciary Act of September 24, 1789, I StaL provided. "[lor shall the privilege of the 81, stating in relevant part "that all the aforementioned be 'Suspendcd, c'ICept in of courts of the United States shull have power to issue any proposed writs, ,which may be necc,;sary for the exercise of their draft respective jurisdictions, and to the prinCiples and usugcs of law" and that of the justices of the supreme court, shall have power to grant writs ofhabeas corpus"; this construed by the Court to the power to grant writs to the indIvidual well), 29Id.at9J·100, 114, I Rutledge. believed the writ to 30Jn re Stacy, 10 John;;, (NY Sup. 0. 1813) conceive any circumstance that would warrant suspension (Kent, ell by the national government; another delegate, and also a 3lfd. at 331-34, future Supreme Court Justice, James Wilson, doubted tbat J2/d, at 33 J-34 (responding to the faulty return, the court and Ihat the issued an attachment and a copy of the opinion so that finally, the the shel~iffwould know to scrve the same, if General Morgan Lewis shall forthwith, upon service of a copy of muli,m ufGouverneur Morris and stated this rule upon him, the said Samuel Stacy, Jr., that, "the privilege ofthe writ ofhabeas corpus shall not be or shall cause him to brought" in obedience to the suspended, unless of rebellion or invasion, public safety it"), that Chief Justice Kent 223 Story, SUP"7 note 14, at 1 Jefferson's Correspondence 344) 2JHurd, supra note 13 at I 8 (citing Benton's Abr. how this a contentious issue 130 years later Debates 490, 504, 515: on January 1807, President during World War 11. Jefferson sent the Senate a message, reporting Colonel 34SIIIilh v, Shaw, Johns, 257, 265 (NY Sup, Cr. J 815), Burr's conspiracy, and complaining that one of the appre~ The defendant unsuccessfully argued that he had at least hended conspirators had bec;n reJca;;cd by habeas corpus; the authority to detain Shaw, conduct an investigation, and the Senalc: acted quickly, and passed a bill authorizing a then transfer him to civilian authorities to be charged with three-month suspension of the privilege in certain cases, treason, and thai this was vital to public safety. /d. at 260. and communicated Ihe of the bill "in confidence" 35Jd. at 265, to the House on the 26 'h, requesting their quick action; 36Hurd, 13 al 118, the House received the bill and message in secret 37Jd TERRORISM AND CORPUS 239

381d corpus throughout the coun­ J9M. The fine was latcr refunded by Congress. Id. 17 F. Cas. 144, 147 (CCD. Md that citizens of states op­ Circuit Justice) that courts was uninterrupted, and who arrested on general charges of President's authority, have the benefit son and confined on order that contained in the federal courts; and that t;VIUt:llC\~,no indication oflhe existence ofwimcsscs, or any other speciflCatlOn of the acts, which in the reasoning nished within twcnty days of the arrest, and subsequently of the officer may have constituted these crimes; subse­ the prisoners Inust be brought before the federal court for quently, the commanding offJcer refused to show obedi­ indictment or ence to the comt on grounds that he was duly authorizcu Wd. 107, 108-09. by President to suspend the writ). 53!d. at 118-19, 121-22, 124-26, 131 (similarly rcojeding 4lld. at 148 (stating that"no official notice has been given the rest of thc government's argument,: tli{' government to the courts ofjustice, or to the public, by proclamation argued that tribunal jurisdiction under the or otherwise, that the president claimed this power. for 1 and usages of Court hdd that thes" usages eould had supposed it to be one of thOse points of constitutional when the courts are open and law upon which then: no difference ofopinion ,. that that the privilcg~ of the could not be su,pended, exccpt by

emphatIcally the common law,

Court held that citizen oflndiana, ifhe had "conspired if no speci fic offence vI ere with bad men to the he punishable for it in him in the warrant ofcommitment, he was the courts of Indiana,. [W]hcl1 tried for offence [he] entitled to be forthwith " /d. at 150. cannot plead the rights of war . [I]fhc cannot enjoy the 451£1, al 151 {guoting Hallam's Constitutional History immunities attm:hing to prisoner or war, 19: "(1]1 is a common mistake that the statute of Car. \I how can be subject to their paim; and penalties'!"), enlarged in great degree our liberties .. [I]t introduced 541d, at J36 (eha,c, dh"cl1ting), This last holding no new principle, nor conferred any right .. [FJrol1l the was the ol1ly grounds on which four lustice, uissented. earliest records of the English law, no freeman could be Cl £x purtt! lOS detained in prison upon a criminal charge or con­ viction .. lTJhc stalHtc ofCar. II enacted. but to cut off the abuses by which the government's lust of power, andthc subtlety ofthe crown lawyers, had impaired so fundamcnl<11 ,1 pus or 46/d. at 153. v. Maffill, 47HunJ, supra note 13, writ of alleged without warrant by San Francisco that the supposed charge was the exclusive province illegal court-mar!!al). to a final Judgmcnt or order of any compdent coun of Stat. 385 criminal or civil jurisdictiun, nor based on any affidavit parle /cfcCardli!, 73 1..:.S. (6 Wall,) 318, 318, accusing him of any crime under or federal law, and 26 (1868) (Chase, c.J.) (explaining that the right of ap­ furthermore, that he had been illegally removed from the peal attached equally to all judgments of the circuit court county in which the alleged wrongdoing had taken place). and that the Act of 1867, 14 Stat. 385, "bnngs within the 491d. at 367, 373-76. babeas juri5diction of every court and of every Judge 50/d. at 371, 379. cry pos;:ible case of privation of liberty contrary to the 51Lx parle Milligun, 7J U.S. (4 Wall.) 2, 107, 132-34 National Constitution, treaties, or laws"; tilus, under the (11\66) (relating the ca,c of Lambdin Milligan, arrested "!{"l'I1r"~""', argulnent that tile Suprcme Court', appel­ and detained under aurhuri!y of the Act of Cungress of late jurisdiction only extends to judgmc'llts of the circuit March 3, I fl1l3, 12 Stat. 731, which had authorized sus­ court, rendered on appeal, as opposed to those 240 JOURNAL OF E COURT HISTORY

on original jurisdiction, then the petitioner in a ceeding a circuit court would have no

CoUrt, rejecting the Yelger, 75 US. (8 Wall) 85, J 03 (I ernment's argument that citiLcnship followed the p;.;renIS, C.1). maintained Ihal a child born in the United Statcs to im­ 61/11 re TiliNe, 80 U.S. (13 WaiL) 397, 402 (1872). A pe­ migrant parents residing here in a nnndiplomatic capacity tition for a writ of habeas corpus was granted by a court becomes a citizen of the United States, by virtue of the commi~sioner of Dane County, Wisconsin on behalf of an first Clause of the Fourteenth Amendment of the Consti­ military cus­ tution); Ex parte Fang Yim, 134 F 938, 941-42 (S.D.N.Y that the military lacked jurisdiction over 1905) (granting a writ of habeas <:o1'pus on behalf of two him due to the illegality of his enlistment; the grant of the children of Chinese denied entry to Ihe country upheld by the Wisconsin Supreme Court. ld. at by decision of the of Commerce and Labor, ing 194 U.S. 279,295 (1904) 409 (reversing the judgment of the Wiscon­ proposition that it not "within the sin supreme court, which had asserted the right of a state power of Congress to give ministerial officers a final ad­ court to inquire into the legality of detention under federal Judication oflhe to liberty, or to oust the courts from authority). the duty of inquiry respecting both law and facts"); 63Jd. at 4 J 2-13 (Chase, CL dissenting) (maintaining that Mooll Sing v. Uniled Siales, 158 US. 538, 548-50 (1895) was no doubt uflhe "right ofa court to inquire (denying a writ of habeas corpus on behalf of a merchant court upon habeas corpus," ofehinesc who was refused entry to the country by a customs official, for want of jurisdiction to the fact that 11" did not a statutory appeal of the deci­ of the

ing SWle:, Supreme COllrt Justice Field, who was arrested by a sher­ (Holmes, J.) (relating the case of thirty-two of iffin California for shooting former ChiefJustice Terry of Chine,e ancestry who were denied entry into the country the California supreme courL who was reportedly trying from Canada; whlie in detention, and awaiting deporta­ to kill Justice Field; the federal officer was ordered to be tion, without haVing appealed to the Secretary, a petition released from state custody by the US. Circuit Court on for habeas corpus was filed on their behalf, claiming they ground" that he was acting within the of his duties, to were natural-born citizens of the United States; Court winch no state criminal liability could attach; the Supreme held the writ should 110t have been grunted, that Court affirmed). entertained, at 76 (Lamar, C,J., dh;senting). The dis­ satisfied that the petitioner can make out federal government case ... [MJere did not have jurisdiction to fc(1<.;1'a I 0 fficer for but see id. at that alleged crime in that particular circumstance, it was consequently not empowered to release him from trial and c1aimlng to be a citizen cannot be prcsum"d to make him immune from liability to trial in that same cir­ and that the courts cannot deny a party on the cumstance. Id. at 99. grounds that they do not believe it probable that he could GoNew York ex. rei. Billolli v, lV, Y Juvenile AsylulII, 57 A.D establish the claim he makes). 383.383-86 (NY App. Div. 1901). 194 U.S. at 170 (Holmes, J.). 67/d. a1384. 194 U.S. at 173 (Brewer, Peckham, 1.1, 68McC/aughl)' v. Deming, 186 69McC/aughry, 186 US. 69-70 (I 902)(citing v. Allen, 100 F2d 717, 18 (~.C. Cir 1938) the Act of 1898, 1899, 30 Stat (considering an appeal from deny­ 977). in the 70Uniled Siales v. Wong Kim 169 US. 649,666--67, Court and fined S100 for public intoxication, which 675,694 (1898) (affirming the issuance of a writ of habeas she unable to pay, she 'Aas ""ntcnccd to spend sixty corpus on behalf of a person of Chinese ancestry, who al- days In the city Jail but was soon thereafter transported

Icged that he was a natural-born US. citizen and whom (0 a workhouse twenty miles outside the city; her petition TERRORISM AND HABEAS CORPUS 241

alleged that had not been drunk, but suffering from the ously ignored the thrust of Walker's holding to habeas ofa drug that had been administered to her without jurisdiction, her knowledge, and consequently, she had been unable to 77Quirin, 317 US, at 38, understand the charge or put forth a defense), 7xf-lirabayashi v. U.S, 320 U,S. 8 [,95-99, 100-02 (1943). 741d. (citing In Ja('/wJI1, 5 Mich. 417, 440 (Mich, The petitioner appealed from a conVIction for violation of 1867)); In re l:'mers()ll, 108 P,2d 866, 867-68 a curfew applicable only to people of Japanese ancestry, (Colo, 1(40) (holding extraterritorial detention no bar to Id, In affirming the conviction, it did not go without men­ habeas corpus if it appears that respondent is able to pro­ tion that "today the first time, so far as I am aware, duce the party, citing 29 CJ § 113) (emphasis added); that we have sustained a substantial restriction of the per­ Sadler, 18 S,E,2d 486, 486 (Ga, 1942) (holding sonal liberty of citiZens of the United States based upon that illegal detention exists where the "power ofcontrol is the accident of or ancestry," Id, at [I [, 114 (Mur­ phy, concurring) (pointing out that under this eurfe,,:, QUirin, 317 U.S, I, [8-25 ([942), Seven 70,000 men were arrested in the US" subjected to military jurisdiction, and tried a, spies and saboteurs, Id, The stipulated to the fact that they were High Command to commit of and that they were delivered to German submarine for that but that they had neither committed nor intended to carryollt any such acts at all, Id, at 38, As such, they argued that the basis for military jurisdictIon over their alleged of- became open to attack by habeas corpus in a court whose service of process could reach someone with power of control over them, Id, at 24, The military mission, c:xcrcisingjurisdiction over them for violations of the laws of war, IVa' convened by order of the President, the order for which slaled additionally that all such pris­ 1407, authoritcd nnd oners be denied aece's to the courts, Id, at 22-24, Their prescription of mi Iitary areas from whie h anyon\J trial before the commission continued to progr<.:ss their exduded or to anyone !Hight be confined, applications for leave to file petitions for habeas corpus penni"s ion to enter 01' leave being were denied by the district court, and subsequc'ntly filed, of W"r and then later in the along with petitions for certiorari to review the orderofthc War Relocation Authority, rd, at 28f>, 290, MilStlC district court in the US, Supreme Court, Id. at [8-24. The who detained at ,mch a localion, filed her petition lor Court met in Special Term, heard arguments of counsel, habeas corrlls, alleging that she was detained arbitrarily and two days later issued a per curiam opinion (in which and against ber will and that no charge had been made Justice Murphy did not participate) affirming the order her; the district court denied her petition on the the district court; it filed its full opinion three months later. ground, among others, that she had fa; led to exhaust her 761d. at 24 (citing Walker v. JOilll\(lrI, [2 U.S, 2R4 administrative reme-dies, Id, at 294, (J 941) in support of the procedural approach), Oddly 80Endo, 323 US. at 294, 297, 302. enough, the vicw taken by the Court in Walker with re­ 81in Yamm,hila, 327 US, 4-6, 13-[5, 26 (1946), The gards to habeas Jurisdiction language in question was from the Annex to the Fourth analogous to the one advocated by JlJstice Brewer in Hague Convention of J907, Article [ of which states that than the one employed The Court, in order for the members ofan armed force to be cOllsidered lawful combatants they must be commanded by for their subordinate". This was rf)'M'm{'ti the Court to impose a duty on the General to prevent by way, jected to cxammation, ,[T]hc Government's contention that his improbable and unbelievable can­ him an opportunity to ~upport them by evidence, fljt his right 10 /;elll'd," ld. at 286-87 sion were not able to be reviewed by the (empha:;is added), Note that the opimon in Quirin CUrl­ at [7,23. 242 JOURNAL OF SUPREME COURT HISTORY

82Yal1la.\/;il(/, 327 US. al 26- 28 (Murphy, J., di"cnling) (mamtaining that hostilities had ceased. pe­ tiltoner had voluntarily ",rrcildcreci, he was cntith:d "to be treated , instead, was a rush to trial. an improper charge, lack of denial of fundamcn­ tal rules of evidence, and summary death scntenu;; and further stating tbat a procedure is unworthy of the traditions ofour people"); id. at 41-42 (Rutledge, J., dis­ sl'nling) (maintaining that dne the termination of hos­ tilities, there no reason not to restore adherence to the 25 .. 1948, ch, 646, based on 451, "dllc process of law in the trial punishment of that federal district court judges shaJl, that is. of all men, whether citi/~ns, alien cnemi",s spective jurisdictions, have power to writs of habeas enemy belligm:nl,,"), corpus, .). o,'Dul1con v.l\l)halll)!I1oku,327 U.S. 304, !8,324 (1946) (relating that petitionCfs were separately convicted of civil crimes, emhezzlement and brawling, by military tribunak and subsequently filed pctltions Jilr habeas cor­ pm in the court, which in both cases ordered that or in\;)5ion; the prisoners be set free, and that the tribullal:> had omission that crmed outside their jurisdiction; the Court of Appeals for the"a~t the' "lil1th ('ireuit granted ",hould be construed, if certiorari). 174 at I 141. 153 85/)1111('(111, .1'27 U.S. at 324: cf at ]25 (Murphy, 1.. 95Eis<,nlroger, clllTing) (marntaining that the were forbidden the 174 F2d 983 8111 of Rights of the Constitution of tile United dismissalofa pns­ alone the marlial law terms of the Hawaiian Organic oners were sentenced by an tribunal, the de­ Act) tbe review of the courts ofthe 8C'Ahrens v. Clark. 335 181:\, 189 (1948) (relating that States). the petitioners were j 20 Germans held in l\\)W York by 96J0I1I1S011 v. 339 US. 763, 791 (1950) deportation order of the General, under authority (Jackson, J), derived from Presidential Proclamation 2655, 10 Fed, 776,777-79, ~N47, pursuant to the Alien Enemy Act of 1798, 50 US,C, ,)gjoI1llsull, at 790-91; § 21; the pd;1 ions writs of habeas corpus were filed 98 (Black, Douglas, and Burton, in the District Court for the Di~!rict alleging that they were "subJect respondent Attorney 87M (citing § 452, which provided against a Icderal in part that the of the Supreme quoting TLlcitus and the judges the Circuit Courts of Appeal, and of to maintain their greatness by justice the District Courts shall, within their respective JUriSdlC­ rathcr than violence") (internal quotation marks omit- tions, haw power grant writs of corpus, which also Burns y, Wilson. 346 U.S. I 153--55 the Court construed to necessitate the presence of the (Douglas and Black, J.3, dissenting) {maintain­ prisoner within thc district from which the writ ing that ifsomeone well within the Jurisdiction ofa mil­ itsl,), tribunal denied due process in the course of 8iiAhrens, 335 U.S. at 193; but id. at 195 {Rutledge, that trial, the trial would become "an empty rit­ Black, and Murphy, JJ., dissenting) (maintaining that if ual" and a petitioner should be afforded relief by habeas the Court" opinion "is or is to law ... it would corpus). seem that contraction of the writ's classic scope 99Bradcn v. 30lh JlldlCial Circuil COllrl o/Kl'" 410 US. and cxposition have taken place and much of its historic 484, 485-87, 495, 500 (1973) (considering whether the may have been destroyed"). lack of physical presence of the prisoner within the

89/-1imla jI, MacArthur, US. 197, 197 (I (per territorial jurisdiction of the district court and the curiam), guage In § 2241(8) "within their 9il/-lirola.331:\ at 197. speclive jurisdictions" would disqualify the district court TERRORISM AND HABEAS CORPUS 243

considering the petitioner's application; the case was Cl,len,fI'UJL!erJl. Forresl1I/, 174 F2d 961, 962-63, that of a petitioner, who, while serving a sentence in Al­ (D.e eil" 1949) abama, applied 10 a federal court in Kentucky for a writ 102Johnson EisClllmger, 339 US. 763, 77779, 784 corpus, a denial of his I'ight to a speedy ( 1950). trial and asking the court to order the respondent state 1033 Hallam, The Constitutional History of Eng­ court to grant him an immediate trial a several-year-old land I (8th. cd.) (John Murray, London (867). also indictment), bpar!eivlenyman. 17FCas. 144, I I (CCD,tv1d. 1861) LOoBmden .. 410 US. at 495. (No 9,487), Biased Justice: James C. McReynolds of the Supreme Court of the United States

ALBERT LAWRENCE

James Clark was a man who people of in most of them was to the court in the land-seems unthinkable reme Court in 1914 by President Woodrow How these Wilson, an example ofwhat is now known have colored the as "the Peter Principle." Wilson allegedly had "kicked to him out of the President's cabinet. l He served on the Court for 27 years, in bit­ terness in 1941. McReynolds is often called the BACKGROUND most conservative Justice who ever sat on the Court. That might be the only ever James Clark McReynolds was born on Febru­ that is only considered ary 3, I in Elkton, a sparsely by conservatives. Those of a differ­ mountain town near the Tennessee ent polltlcal bent called him a and His ethnic was Scot- one of the Court's "Four Horsemen. he came from a Presbyterian fam­ also labeled that joined the of Christ when from Pennsylvania and Vir­ ginia to His autocratic father, John less diverse, less politically correct era, Oliver McReynolds, was a physician who he was considered an and was referred to in Elkton as "The Pope" be­ generally odious man. A person so openly bi­ cause he believed himself infallible 4 Justice ased sitting on the bench-not to mention the McReynolds apparentlv inherited his father's BIASED JUSTICE 245 personality; the father was abo described as recreation was walks in the wOOdS. 17 In snobbish and S narrow he suff..:red from and walked his

how to use his In

10 the notion memory was not known until after education. "He jell that those who had his death.2o a for education would somehow find ",,"'''>lI(,f of the Old who de­ the means who were scribed himself as a conservative Democrat unsuccessful in the initiative to undertake it, strated an assistant to Senator to benefit .HI\~""'VII o f1elll1essee before and real estate busi­

a weak advocate who was and He taught at Vanderbilt law school for three independent and action in her years 2S Also on the was H.orace H. children. lo Her son had few close his hobby was the study of plants and birds. II In college, was known for his strict habits. He did not drink and wasn't interested in SpOrlS. 12 He first in his class of 100 from Vanderbilt win but ran on in 1882. He to convert to the owners of silver mines to threaten the worth of those who held He was but the race was a close one 29 A contradiction to his conserva­ tive, pro-business leanings, McReynolds made a name for himself in the field home. IS Tributes to Minor He did make it to of Some of when President Theodore its other famous alumni, including Robert F. Roosevelt appointed him assistant to the At­ torney General. After the Roosevelt adminis­ throughout the tration, he practiced law in New York but re­ there graduate turned to the Justice in 19tO. 3() to James C. He was recruited to help in the of the American Tobacco Com­ As a man, at s I pany. When the and the company more than six feet. His blue eyes were de­ un a settlement decree the following scribed as A slender man, he stood year, in anger, cJaim­ erect and carried himself He in the settlement was too favorable to the a voice. His favorite form of "Tobacco Trust. 246 JOURNAL COURT HISTORY

MCReynolds came to the attention of President Woodrow Wilson for his vigorous prosecution of the tobacco trust. Known as a "trust buster," McReynolds was appointed Attorney General in 1913.

His reputation as a "trust buster" even- Semitism toward Brandeis.J(l But his treatment won him the attention of President of Brandeis would not be so kind when the Woodrow Wilson, who named McReynolds two eventually sat on the Court for Attorncy General ofthe United States in 1913, years. after he had in another short stint of a brief tenure as the nation's chief law in New York. to his law enforcement McReynolds battled later Louis D. Brandeis, then a Boston with the Union Pacific who had been for the and Telegraph supported the nomination. Brandeis New York, New Haven and Hartford Railroad had met McReynolds during the tobacco trust Ironically, his career litigation. "I have the highest opinion of his led some to fear that he was a radical. 37 But his and character and should think the opposition to monopolies was, in fact, based country would indeed be fortunate to have him upon his conservative belief in competition38 fill the position of His interest in up the monopo­ deis wrote to another lies of the time was founded in a "fundamental McReynolds Brandeis wrote, "In de­ well as in his disl ike and distrust ciding upon you for Attorney General Pres­ McReynolds choice. Your record in trust quickly members of assure the that the President's "He was too wi Ube carried out promptly and efficiently, sometimes very blunt to prosper and business be freed at last."35 McReynolds in an of delicate relations such had not yet disolayed his feelings of anti- as constantlv surrounds the members of a BIASED JUSTICE 247

Not happy in his job, Attorney General McReynolds feuded with Treasury Se(~r"'ltarv William McAdoo (pictured) and only communicated with him through intermediaries.

but and abrasive acorps who the issue caused the President federal judges to influence their Wilson a charge he denied."41 He also Ollt and made enemies within the administration, A nominated him for the seat left vacant the feud with Treasury William G. death of Justice Lurton. was

McAdoo reached such proportions that they the first ofWilson's three "",JVJUU to the communicated only intermediaries Court. Wil.son had a of doubt" about in the White House,42 And it appears that his because of his McReynolds wasn't happy with the job. Wilson believed that McReynolds would After with him in December 1913, be a on the Court48 His roots in Brandeis wrote that the Attorney General the South may also have been a factor in his seemed "very tired and I think must look selection.49 back to the days of "43 In ran into staunch opposition Brandeis wrote that a from W. with McReynolds was "not exciting. "He is who led the attack from a cOllch on weary & 1 think almost wishes he were out the Senate floor. 50 There was doubt about of the But his controversy his 51 but he was backed as General involved a man who in ten he was accused of the Mann Act, was a vote of44 to 6, to a life­ which banned the of women time on the high court.52 1. across state lines for immoral purposes. Abraham calls him the first offive weak nom­ McReynolds was accused of the as a favor to the defendant's who was a high years of age, took the oath of office official. Nothing ever came of the scandal, 5,191454 248 JOURNAL OF SUPREME COU HI

inconsiderate and bitter nature. Hc the Court's cen­ member. He was ... fullcr of preju­ ... one others ul1comlorlable. He is a continual of

ticc. In I

tant case to another Justice. Having known him as a The third Chief McReynolds' lies, Brandeis nomination to Court But Brandeis came to view tenure, Charles Evans was the only him as a lazy and infantile Justice. member of the Court to whom McReynolds would defer68 who took the center chair on the bench in

ON THE BENCH One morn­ ing, as the Justices assembled in the In a room to line up to take the be­ came impatient because was late. He sent a messenger to the chambers of the "numerous and abrasive tardy justice. Trembling, the messenger bowed cies"S6 and "considerable and said, "Me the Chief Justice says an obstacle to teamwork who tried you should come at once and put on your robe. the patience of other JlIstices. He was gruff McReynolds snapped, "Tell the Chief Justice with the other Justices, both on the bench and that I do not work for him." He arrived to take during the conferences at which the mem­ the Bench with his bers of the Court discussed their cases; he did 30 minutes later69 not laugh or joke.59 Justice Oliver Wendell Throughout his tenure on the Holmes, Jr., who served with McReynolds refused to sit for from 1914 to 1932, called him "a savage, less a particular with all the irrational of a savage.,,60 When he retired, the Court was Brandeis eventually concluded that he was news that he would not lazy and, at acted like "an infantile himself to be photographed. moron."61 Former President William Howard refused to sit for a who took over as Chief Justice in 1921, in the Supreme Court had to be con­ wrote, "McReynolds has a domi­ structed from a photograph.71 BIASED JUSTICE 249

McReynolds did not like to be He even refused to all official portrait: This one, which hangs in the Supreme Court was painted from a photograph.

He was not one of the Court's great sometimes hap- workhorses. Taft said that he was try- pen around to escape work" and took more time off and, than other justicesn Taft's biographer called McReynolds lived in a him addicted to vacations.,,73 thirteen-room Washington apartment at 2400 When he became bored during the 16th N.W., where he and his law clerks he would leave the table and re­ dirt most of their work, even after the new 74 tire to a soft chair in the conference 1'0001. He Court building in 1935. oftcn around when his crotchety nature, entertained season commenced. In 1925, he most often at Sunday-morning pan­ left the Court unannounced without handing in Iiber­ his opinion in a case. Taft was fu- he had wanted to announce the Court's Court conferences.8o Justice decision in the matter. McReynolds returned to McReynolds was often an escort for socially town with a few ducks. In 1929. McReynolds widows.sl He main­ asked the Chiefto deliver his for about the of "an imperious voice has called me out ;;2 He was of town. I don't think my sudden illness will 250 COURT HISTORY

McReynolds was a member of the Chevy ChasE! Club and played golf there with Justice William O. He was too slow at golf for Douglas, takin" his time putting and a great many shots. McRfl>1mnlc!s also refused others to play

there with got on a ba­ had nineteen Jaw clerks dur­ his time putting and a great many shots. And he refused to allow others to Ironically, Douglas, who is consid­ in his ered one of the most liberal Jew- married or clerks take in the same exclusive building in which he lived so as to be available to him at all times. they worked in the Justice's apartment, were not allowed to eat there or to remove their he was present, even in sultry In the days before air conditioning. If the Justice for dictum that he had written in his first called the and found a clerk unavail­ decision for the Court. Douglas invented a was fired 90 card game and named it after he McReynolds' demeanor on the it "Son of a Bit..:h. bench was a to the ~ ourt.,,91 He This was the kind of treatment that Court sometimes "took with mat­ other justices and appear- ters of and personal mannerism" by BIASED JUSTICE 251

Mahlon Pitney was one of the victims of his hatred; he "used to say the cmelest things" to Pitney, according to Justice Brandeis.97 He treated Justice John H. who took the bench in 1916, with such hatred that he is believed to have forced Clarke to retire in 1922. McReynolds had Clarke's first appointment as a federal district court and believed when he came to he should have become When that

nior with a vengeant.:c. Clarke was cowed by that he once asked that he wouldn't dare to do such a thing Clarke told Taft. 99 After his re­ tirement Clarke wrote to the former Presi­ McReYllolds expected Johll Clarke (pictured) to be his protege when he joined the Court in 1916. But dent who had appointed him: "McReynolds as Clarke showed independence, and McReynolds ha­ you know is the most on the rassed him to such a degree that he resigned in 1922. Court. There were many other which had bettcr not be set down in black and white before the Court.92 He heck­ led and sneered at Felix then a Harvard law and later a colleague self not called on to sacrifice what or health on the when Frankfurter and I may have lefl in a futile cases in of 19 1793 When F. odds. Rutherford appeared before the Court repre­ a Jehovah's Witness, McReynolds had the customary a "fit of this spiteful act "a fair sample of McReynolds' did this lady that was personal character and the erature for Jehovah's Witnesses not get a li­ with him."[OI cense? If she had only got a then she would not have had this problem. When In spite of the extent to which Jus­ Rutherford that "Jehovah's God" had tice endeavored to pro­ advised her not to a license, McReynolds tect the reputation and dignity of the slammed down the book that he was Court and demanded for it the honor stormed off the bench and did not return that he felt to be due it, his statements 94 from the bench and those included in His on the bench got no his detracted from the faith better treatment. \1cReynolds at every written Justice Harlan Fiske Stonc.

respect for the court of which he was the only member of the Court ever to display a member. 102 a marked anti-Semitism, refused to sign.,,1 I 1 Nonetheless, there was another side to the McReynolds routinely turned his back on man. He could be charitable to the Court's another Jewish justice, Benjamin Cardozo. I12 pages and tender toward childrenYlJ During Cardozo's swearing-in ceremony, he openly read a ncwspaper. muttering, "Anothcr It can be stated that he was, among onc.,,1 Ll He refused to attend .Justice Frank­ basis, furter's robing ceremony when he was named gracious, polite, gener­ to the Court in 1939. 114 He remarked, "My ous, humorous, and considerate; but God, another Jew on the Court." I15 This an­ to those not included in this group tipathy cven carricd over to the household or closely and compatibly associated staffs of the Justices. II (, Whcn Cardozo died with him in a in 1938 after sufTering a heart attack and McReynolds was an entirely differ­ stroke, McReynolds absented himselffrom the ent person. In truth, he was a different hench while the other justices expressed thcir man to different people. 104 sorrow. I Ii In his generally charitable disser­ tation on McReynolds, Stephen Tyree Early, .II"., has called the justice "poorly understood," BIGOTRY however. I I0 His "strong aversion" to Brandeis His most boorish behavior was reserved and Cardozo \vas "partly, at il'ast a matter of for the rncrnber~ of the Court who were the social and political philosophy for which lewish. his champion when they stoOd."1 10 But even this writer acknowl­ McReynolds was named Attorney General, edges, "His dislike of Justice FrankfUlier, was the longest suffering; they sat on the however, approximated that toward Justices Court together for 23 years. On January 28, Cardozo and Brandeis; and his characteriza­ 1916, shortly before Brandeis's appointment, tions of the former \overe often couched in lan­ he and McReynolds were at a dinner for guage approximating defamation."12o the President. 105 "Noting McReynolds's hos­ Henry Abraham has called McReynolds tility to Brandeis, Wilson took him by the a "confirmed misogynist,"12J although, of arm and sai(~ 'Permit me to introduce you coursc .. thcre were no women on the bench to Mr. Brandei~, your next colleague on the during McReynolds' time and few practicing Bench,,,I06 McReynolds refused to speak to at the Supreme Court bar. When a woman did Brandeis during their first three years on the appear before the high court, she got the cold and "practically never" addressed shoulder from McReynolds: he typically left him thereaftcr. I08 He refused to sit for the the Bench. ln Court's portrait in 1924 because it would have There were no African-American justices required him to sit next to Brandeis, so no por­ until long after McReynolds left the Court, trait ofthe members was taken that year. 109 Two but McReynolds exhibited his disdain for years earlier, he had refused to accompany the black attorneys. Jn 1938, Charles Houston, a Court on a ceremonial trip to Philadelphia. He Howard University law professor and men­ wrote Taft, "As you know, I am not always to tor to Thurgood Marshall, argued for the be found when there is a Hebrew aboard."IIO NAACP in a case involving the admission When Brandeis retired in 1939, McReynolds' of blacks to the State University of Missouri name was again conspicuously absent from School ofLaw. McReynolds turned his back to the Court's congratulatory proclamation. Houston and sat facing the curtain behind the "Mr. Justice McReynolds, who had been an bench throughout the black lawyer's argument. ideological opponent of LDB since 1916 and Robert L. Carter, then a Howard law student B JUSTICE 253 and later a federal judge, witnessed this dis­ tice McReynolds reflect the in some "Thus, , , my first view of the instances the of his personality. Court was its back on black Pungent language was characteris­ and of those written in dissent,,134 needs and the Court's There was a black barber in the courthouse and he strove to his named Gates, While a cut one concise. 135 few dicta found their way asked him, "Gates, tell me, where into his opinions, It was not, in his estimation, university in Washington, D.c.'?" the proper function of an appellate judge to Gates removed the cloth from his customer's indulge in philosophic but to de­ with replied, "Me clare the law for the am shocked that any justice would call a and the bar. He a There is a Negro ton, D.c. Its name is Howard we are very of it" decisions on substantive matters were bled some kind of apology, and Gates si slashing, or more offiland, , . and went back to work, 124 nearly and undiscriminating, In 1 the Justice was criticized for his McReynolds was not one to be reasoned with, remarks about "darkies" in cases before and he would listen least ofall to anything corn­ the Court 125 ing from Brandeis,,,137 Although he had no special training or McReynolds claimed fa- DECISIONS

If President Wilson to

and spokesman for constitutional exper­ is more familiar with the constitutional imentation and reform; his first appointment, tures of that branch our than he Justice McReynolds, was not willing is with the details and to that function. He soon proved Even in this arcane area of the to be the antithesis of pu;'nl',nl McReynolds was considered a Wilson believed, Taft One of his law clerks quotes Justice Stone as has set the ofad- to be referred to as "Wilson's mistake,,,129 In his twenty-seven years on the bench, with the most conservative members of the "never took a in accord Court "He viewed the Constitution an im­ with Wilson '$ views on any important regula­ of principles that should be in­ tory case:'uo as limitations on the exercise In the course of his career, few majority never wrote an of I per calen­ ion that reversed a judgment"141 "I feel as dar year. 131 were if not to have too in support of the or contract rights the Court who arc as of businesses. 132 He is bcttcr remembered for his those at the end of written by Jus­ first term on the Court, 254 JOURNAL OF SUPREME COU HISTORY

protection for union members from thaL the had used discrimination by their employers, quickly their dominant economic pause to Wilson about his first nominee to the Court. Two years later, he took another anti­ that a federal statute an eight-hour day for workers was unconstitutional. 143 In he voted with the to offive Justices in unconsti­ tutional a law in the District ucts to customers and dealers who would not of Columbia. agree to resell them at that the company In 1926, when he dissented with two oth­ had established. The company had been ac­ cused of records of recalcitrant deal­ ers in their vertical chain of distribution and "have of cutting them off as "undesirables" for seil­ to the Com1 and sacrifice almost ing below the company's resale to the of their own prices. The majority found that this violated pUblicity...." public policy: 'The system here disclosed nec­ as a trust-buster, essarily constitllteS a scheme which restrains could not be counted on to vote the natural flow ofcommerce and the freedom efforts to break of competition in the channels of interstate When the country's largest trade which it has been the purpose of all the were the defendants in these cases. Anti-Trust Acts to maintain."147 McReynolds often voted in their favor. but declined however, to take such a broad yiew he IIt:Uu\~11l1'l of the public policy against tions of smaller businesses. this was business practices. There was no contract fix- because the real purpose of the anti-trust Jaws prices, he noted. was always to clear the way for the com­ cabals of his work on white-collar crime: customers--to refuse to deal when The of and as it saw fit-and to announce tion of white-collar crime that future sales would be limited of white-collar criminals to those whose conduct met with its thcmselvcs for their own benefit The approval. ... Having the undoubted earliest white-collar crime laws were to sell to whom it will the antitrust acts of the late 1800s. should [Beech-Nut] be enjoined from These laws were in fact initiated and writing down the names ofdealers re- supported by the very businesses as undesirable customers? ... ostensibly regulated. prohibi­ And the exercise ofthis right does not tions against monopolies and become an unfair method of compe­ fixing were used by the robber barons tition merely because some dealers to stabilize the market and to make cannot obtain goods which they de­ the economy more Con­ and others may be deterred from 148 currently, these laws were also useful at reduced prices. for driving smaller out of was in the majority in 1923 business by denying them the use of when the Court heJd for the Curtis Publishing the same unethical and illegal tactics Co. The FTC had ordered the publisher BIASED JUSTICE 255 to desist from prices for sures this group of smaller businesses, He papers and with I saw als, partnerships and carefully developed to cutdown whom trained and normal competition in interstate trade who distributed the and commerce, Long by this McReynolds' concluded that the con­ purpose, associations in each tracts with the distributors created an agency have adooted relationship that was not covered the ents through which ton Act. and the creation hoped to defeat the policy of the of a monopoly were not involved, as the FTC law without themselves 10 had concluded, "The of compe­ punishment. , " It seems to me that to devote thcir time and knowledge of human nature attention to the principal's busi­ and of thc force of ness, to the exclusion of all where ought to permit no seriolls doubt con- appears, has long been recog­ the ultimate outcome of the nized as proper and practice," arrangements, 151 McReynolds wrote for the Court. "Effective

that traders have McReynolds wrote for the 1!1 freedom of action when their own 1926, when the Court found a violation of the affairs,"149 Shennan Act in an agreement between several McReynolds did not sanction such "free­ millwork manufacturers and their unions that dom of action" by combinations of smaller millwork credence to nOll-union Potter's contention that the anti-trust laws were from out-of-state co!mo!chtors. only to inhibit them, In 1924, the Court ruled in favor ofsmall corporations who state and intrastate commerce, he found. had founded a trade the Maple when the Western Meat Com- Flooring Association. Its twenty-two mem­ who seventy percent of the in the country, com­ FTC found a violation puted and distri buted costs and prices of their McReynolds upheld the action products, which the Justice Department argued the small firm, The FTC had ordered tended to create In The as­ Western to divest itselfofall capital the sociation constituted a combination in restraint ~~r,~~",,, of Nevada. Western ar- of in violation of the Sherman ac­ Act it only to to the the ma­ order the company to divest itself of all stock jority found no uniformity of for the in the company. Writing for the Court products sold by the members of the associa­ in the 1926 decision, McReynolds adopted a tion and no evidence to that had more liberal view of the intent of the statute used the association's statistics as the basis for than he had in Beech-Nut, He wrote, among them. The members had no intention to fix and their activities Without doubt the Commission may did not inevitably lead to that result the Court not go beyond the words ofthe statute said,JSO would have held olher­ construed, but they must be in this case and a similar one heard the read in the light of its general pur­ same he voiced the trust-buster's concern pose and with a view to effec­ for public policy mea­ tuate such plll'pose, Prcservation of 256 JOURNAL Of SUPREME COURT HISTORY

established was the great sion to take the end which the sought to se­ and cure.. , The purpose which the law­ makers entertained be than paper currency. The defeated the stock could be fur- tained the invalidation of the the competi­ the Dublk debts. dis­ tor'5 "r,;"po'tv sented frorn the Bench.16J "The Constitution as many of us have understood it, the Con­ stitution that has meant so is gone ... Horrible dishonesty I .. ,Shame and humilia­ McREYNOLDS AND THE NEW DEAL tion are upon US."164 "This is Nero at his But it was during Franklin Delano Roosevelt's worst," he exclaimed. "This New Deal that Justice McRevnolds estab­ too vitriolic for the formal record and was lished his the staunch opponent excised. of governmental power and social programs. Joined Justice Owen the Four He became one of the "Four Horsemen" on Horsemen blocked many ohhe New Deal pro­ the Court, with Justices Willis Van Devanter, grams the end of 1936. 166 When the Sutherland and Pierce ButlerJ54 The tides to tum and the Court reference was to the Four Horsemen of the the New Deal initiatives, Apocalypse-conquest, famine, and found himself in the minority. In 1 when death appearing in the Bible as personifi­ the Court upheld sections of the Social Secu­ cations of the evils of war. A novel and An two movies have carried the title.!S5 Learned Hand ofNew York referred to them as "the Four Mastiffs. McRevnolds became on the grounds that it took com­ the horsemen '8 pany without due process of Jaw and aggressive, and reac­ that, by providing funds to the states to induce tionary representative." 157 them to unemployment insurance ben­ He despised FDR.ls8 In the federal government was the Justice called the President "a " "ut­ with the rig:hls of the states to incompetent," and "bad and and welfare of its 111 Douglas, the Roosevelt nominee violation ofthe Tenth Amendment The had a held that the federal government was pro­ viding a motive for state action, not the President. it. 167 McRevnolds stronglv felt otherwise: The wondered about FOR's states should be "free to exercise governmental told the senior justice that he he would powers, not or prohibited, without in­ like Roosevelt, McReynOlds would snort and terierence by the federal government walk away. 160 "Roosevelt, for his part, found threats of measures or offers of se­ obnoxious. When in 1937 the ductive favors. the submitted his scheme to announced opens the way for he took 111 lation of this the fact that it was based on a similar nrA.... f'\C~ adventure, the door is open for nmnr.~~~ 111­ had advanced when he was attor­ auguration of others of like kind under which it can hardly be that the states will the "Gold Clauses Cases" came retain g:enuine indeDendence of action. And before the Court, challenging deci­ BIASED JUSTICE 257

After Justice Van Del/anter's retirement, the conservative on the Court weakened, and the Justices sustained a contract of the federal government's Tennessee Authority in 1937 with McReynolds alone in dissent.

as N)ntc'rn,nl by the Constitution becomes company was nol to federal ina1'lmuch it not involved in interstatc commerce, The ",,,,n,,,,,.'p involved were in the manufacture of cle for its involvement in matters which was a "local" operation, McReynolds of education, health and criminal that found, even though they worked with raw ma­ had been terials from outside the state and pro­ within the state's police powers, duced products outside the state, 172 In 1937, when the Court sustained con­ had never in any tract of the federal job actions that had an effect on the free flow was alone in ofcommerce outside the state. the Court sustained the constitutionality of Roosevelt's National the effect of intrastate trans­ Labor Relations establishing for the first actions upon interstate commerce is time in this country the of private such transactions main within the domain of state dissented in an power. If the commerce clause were the other "horsemen," Rely­ construed to reach all and upon the Court's decision Iwo years earlier transactions which could be said to Roosevelt's firs! attempt to create have an indirect effect upon inter­ a labor board,171 he concluded that the steel state commerce, the federal authority 258 JOURNAL OF SUPREME COURT H

Thc manllfacturlng employecs connec­ tion to interstate commerce remote and and so was the likc­ any strike in which and to "vitalize the All of engage commerce among the blood" courts." fhur the horsemen were than at the slales. that or­ older violated anti-trust statutes and Brandeis. The similar to one thai had pro- Gcneral in order to provide with commerce unless it can be said to exist substitutes for disabled during the Wil­ among the employees who became membcrs son admill i:;tration. of the union."175 This McReynolds McReynolds the notion that the He and the other "horsemen" met Constitution is a document and that at his home to develop a strategy its evolves over time. 176 If the Con­ to defeat the plan. Their favorcd approach was to have Justice Van Devanter resign in to be chanued, it should be done order to Roosevelt the opportunity to him and to strengthen his support on the nine-member Court IS5 McReynolds also Constitution, broke with protocol and publicly criticized the 186 This brought him considerable quently "from the of the : .. ".~~ ,,178 disapproval. He was called "Scrooge," and, in the press, "he was variously characterized as Justice used logic and a man of 'sheer of disposition' who established 'seemed to nurse a mankind', the 'Supreme Court's to support conclusions human , 'a tragic reached which ap- "Elsewhere he was described as He conservative', 'the narrowest, and laziest man on the bench', a 'man with a heart'. Time lvfof!ozine called him 'anti­ have semitic', rude', sarcas­ a social relevance and dimension to tic" 'incredibly reactionary', 'Puritanical', and which were initially sensitive 'prejudiced'. An unsigned article in Fortune and to which should be attributed to him a 'flauntingly sensitive. character. ,,·188 The Justice's Between January 1935 and June 1936, spondence became so hostile and Roosevelt's New Deal was challenged in that he withdrew to his study and spent time twelve crucial cases. McReynolds was the only every day burning letters in his 189 one of the nine Justices to vote against the ad­ The Court-packing plan but ministration in every case. 180 He wrote 146 dis­ Roosevelt got his way. In I Justice Van sents after J932. compared to only 164 in his Devanter left the Court and was replaced by the 259

NEW YORK HERALD TRI8UNE 61?eAr! t.\aw, ol-l~e HOIl A\.\, \D6ETI1fR

McReynolds W::IS vilified in the only oppose Rooseyelt's plan to the Court with aOtlltltfnal Justices,

19 the survivor of the Four Horsemen. () the time he left the Bench two years later, cases concerned the he held the record fbr the number of dissents contract of recorded a Justice. 1')1 terstate commerce and~wh

tenure, the business of

'n1r\T'''T'Yh' Court was business. It was not and other individual for ten or more years after he retired that the MCReynolds' votes were not often Court's attention shifted to ,,1."Y1""'"'' and ex- in favor of expanding civil and civil 260 JOURNAL OF SUPREME COURT HISTORY liberties. "His on-bench votes evinced no com­ of a corporation and its business or for the travails of that the rich were benevolent and efficient 1\13 Ll'VUl',"''' called Only one opinions for the majority of the Court is still read by law stu­ to choose the proper education for dents today, Pierce v. Society 0/ Sisters. The their children. McReynolds acknowledged the case involved an statute which state's right to regulate all schools but held that the comoulsorv education ofchildren between it schools. of Sisters was an interferes with the lib­ ration that cared for and educated and to direct the and education ofchil­ dren under their control. ... [R]ights

has 110 reasonable relation to some purpm;e within the competency of ment. The similar interests of a mil­ the State. The fundamental theory of Sd1001 were also joined in the case. 194 liberty upon which all governments this civil-liberties issue involved the civil in this Union repose excludes any

In McReynolds' one landmark opinion, Pierce II. Society of Sisters (1924), he upheld a challenge by an Oregon corporation that educated orphans in elementary and high schools to a state law requiring children between the ages of 8 and 16 to be educated in public schools on the ground that it impaired or destroyed the company's profits. BIASED JUSTICE 261

power of the State to stan­ well known that in a for­ dardize its children them to elgn seldom comes to one accept instruction from teach­ not instructed at an and ers only. The child is not the mere experience shows that this is not inju­ creature of the State; those who nur­ rious to the health, morals or under­ ture him and direct his have standing of the child.I~9 the right, coupled with the to recognize and prepare him for ad­ McReynolds was not so generous, how­ ditional obligations. J96 ever, 111 individual rights to citizens who had been accused of when the defendants were of color. He dis­ harm to their sented in one this rationale also fit Powell v. Alabama. the conservative of as the "Scottsboro state power and protecting business interests. ofthe Court held that seven black men It may also have been influenced his father's with the rape of two white girls were enti­ conviction that all education should be tled to counsel because they The Pierce decision cited and followed were illiterate, surrounded ~~.rt"'''V'.' and needed effective JUeyer v. State a assistance ofcounsel in order to guarantee their teacher challenged a War I statute fundamental due process of law. 2ol which prohibited the in any school of This a foreign to younger than high school. The teacher had been convicted of a German to a child to the Nebraska in similar vein when Supreme Court, the law was to pre­ COllrt a writ of habeas corpus 10 vent "foreigners, who llad taken residence blacks convicted of murder and sentenced to in this country" to think in their native lan­ death after a trial that had been guages and "to inculcate in them the ideas driven the threat of mob violence and had and sentiments to the best interests been administered both grand and of this country."19~ On behalfofthe majority, ries from which black;; had been held that the state ex­ excluded, The held that the district statute court erred to issue a federal writ

without a record as to the G.",.';'

aU'AlulaL", foun­ dation for that the pur­ und were then confined the child's health under sentences for the same and his mental activities. It is the affidavits of two white men--Jow villains 262 JOURNAL OF SUPR ECOU HI

to their own " the Jus­ of a the law said. A member tice wrote. Ifevery defendant of the KKK in Buffalo was convicted Ul1­ in federal courl der slatute. The held that the "another way has been added to list al­ law did not violate the and lm­ ready unfortunately long to prevent the Due Process Clause or The delays incident to enforce­ Protection Clause of the Four­ ment of our criminal laws have become a na­ teenth Amendment. m tional scandal and give serious alarm to those that there was no federal who obscrve.''205 neither the federal con­ It is difficult to find a single case in which stitution nor any federal statute had been men- McReynolds wrote an opinion the he said. The only mention of a federal rights of an African-American violation in the courts below was in the Appel­ An early decision. in which he which was not enough Court jurisdiction, said

v. United States, the i~sue was able-bodied resident whether defense counsel should be allowed to work a minimum of jurors about the pos­ the public roads and without compen­ of bias against blacks. The defendant sation unless they could afford to pay a substi­ was a black man accused of killing a white tute to perform the duty for them.206 officer. The trial judge would not per­ the decision docs not mention the race of the mit the questioning. The majority held that does not the issue in terms such questions must be allowed in order to en­ of race. it seems fair to conclude that these sure a fair trial: "We think that it would be "volunteer" road com­ of poor black men who either COli Idn 't afford to substitute or who found the pay for such labor attractive. The Thirteenth Amendment ifieation were barred. No surer way could be

constitute property taken in violation ofthe Due Process the Court in general: concluded. Solely because of the refusal of the even to the trial judge to propound an undis­ McReynolds closed question "relative to racial dissented in a New York case involving the Ku prejudice" (whatever that may Klux Klan. Against a Fourteenth Amendment we arc asked to upset a ap­ the Court upheld a state proved by the of both local any organization, ex- courts who, it is fair to presume, un­ labor and benevolent associations, to fjle derstand conditions in the District [of its rules and regulations Columbia] better than we do. and a roster of its membership with the Sec­ of State. Any person who joined an Nothing is revealed by the record association that had not complied was guilty which tends to show that any BIASED JUSTICE 263

Democratic and that, there was no to pass contest for election at all other than in the primaries215 But the statute was neutral on its he "The act now challenged 1J"~"'-'llll..,U there was room for reason­ withholds from any negro; it makes able doubt

Unhappily, the enforcement of our criminal Jaws is inef­ fective. Crimes of violence multi- walks Courts mental ought not to increase the difficul­ tained. "Their member:> are nO't state ties by theoretical pos­ they are chosen thO'se whO' compose the sibilities, It is their to deal party; they receive from the state."217 with matters actual and material; to While he that the state might promote order and not to hinder it to ensure "fair meth­ by excessive or by mag­ their members of is not really their in the selection of their nomi­ nees. there is nO' unlawful purpose, did vote with the citizens may create itical parties] at will and limit their as seems wise."2l8 in party pri­ The n~~"".· ..u the law violated the equal protection the Court held. a way around the Court's and the other "horsemen" ;OnY\I'W.rt"'/1 the new it wasn't the state that ited blacks from it nllowed the themselves to do The new statute left it to the them- to determine who was qualified to vote School of Law. Because the state had in their When the Democratic to arrange for the man, Lloyd Gaines. to be ed­ ucated in

tutional violation beeause there action. The Comt must either admit him to' law that the or O'ne for blacks within the the state and that the state had also eOIl­ "The white resident is utTorded cdu­ upon the the right to determine the negro resident hav­ This the sume is refused it there and must go O'utside the State to obtain it. That of official power," the is a denial of the equality of legal to the ofthe privilege which the State has that Texas was set up, and the provision for the of 264 JOURNAL Of SUPR E COURT HISTORY tuition fees in another State does not remove opportunities for IcgallllstnlctlOn; or the discri mi nation. dissent may break down the settled prac­ offers a contrary schools and remark that casts on Gaines' mo­ as indicated tives in the lawsuit "The State has damnify both races. the negro petitioner oppor­ In Gaines, he made it clear that he be­ ofJaw--ifperchance that is Iieved that the raees were better ofT separated. 1"I'(l--I,v paying his tuition In New Negro Alliance v. at some school of good Co., he made it clear that he thought that em­ The state had a interest in ployers were entitled to discriminate against its white citizens by barring blacks from blacks. The New Alliance was a char­ the law itable organization formed for the purpose of For a time Missouri has acted the interests of black it did upon the view that the best interest not engage in commerce. The Gro­ of her demands of cery Co. ran 255 stores. The alliance orga­ whites and negroes in schools. Un­ nized of one of its new stores in der the opinion just announced, rpre­ Washington, patrons to boycott sume she may abandon her law school the business because it refused to hire blacks as managers. The company sought an in­ junction the oicketin2:: the alliance

When the New Negro Alliance, a charitable organization tormed tor the purpose of advancing the interests of black citizens, organized a boycott of a grocery chain's new store because it refused to hire black managers, the Court upheld the Alliance's right to do so even though its members were not store employees. McReynolds made it clear in his dissent, however, that he thought that employers were entitled to discriminate against blacks. BIASED JUSTICE 265

that its activities were protected the be up to the Justice to determine whether he Norris-LaGuardia Labor Relations Act The or she would step aside. There is no majority ofthe Court agreed with the alliance. to which to and there is no The act in connec­ disciplinary to deter­ tion with a dispute over the terms and condi­ mine whether a Justice of the Court tions ofemployment, and this was such a dis­ acted in a biased manner. How would Justice pute, even though the were not em- McReynolds have felt about a motion to dis- or any individuals involved in compet­ him from a case? not itive commerce, if his views in Berger v. United States are any indication. It was intended that peaceful and 01'­ In dissemination ofinformation by those defined as persons interested in violations of the Act to a labor dispute "terms and have Kenesaw Mountain Landis of the conditions of employment" in an in­ federal district court for the Northern Dis­ dustry or a or a place of busi­ trict of llJinois removed from their cases on ness should be lawful, .. [and] those the basis of remarks that cast serious doubt a direct or indirect interest in on his impartiality. Landis such terms and conditions ofemploy­ his listeners to find anyone who had ever said ment should be at to advertise and disseminate facts and informa­ tion with ditions of fully to persuade others to concLlr in their vie\vs respecting an employer's 224

In his McReynolds called the by the black alliance "mobbish in­ terference with the individual's liberty of ac­ tion, , , , Under the tortured tributed to the

freedom if members of some other class, reli­ gion, race or color demand that he give them

DISQUALIFICATION? In a 1921 case involving three defendants of Ger· man and Austrian heritage charged with violations of the Act, district court Judge Kenesaw with sLIch Mountain (pictured) was accused of impartial· a himself ity for having made biased remarks against German from any case in which race or ethnic back- Americans, McReynolds. dissented from the majority's upholding of Landis's removal from the case, on the figured But ground that he was not prejudiced against the indio viduals themselves. but against a class of individuals. BIASED JUSTICE 265

that its activities were the be up to the Justice to determine whether he Norris-LaGuardia Labor Relations Act. The or she would step aside. There is no of the Court agreed with the all iance. authority to which to The act protects in connec­ independent tion with a dispute over the terms and condi­ Court tions of and this was such a dis­ acted in a biased manner. How would Justice pute, even though the were not em­ have felt about a motion to dis­ ployees or any individuals involved in qualify him from a case? Probably not itive commerce. ifhis views in Berger v. United States are any indication. It was intended that peaceful and or- In Berger, three defendants of German ofinformation by and Austrian those defined as persons interested in to a labor dispute have Kenesaw Mountain Landis of the federal district court for Northern Dis­ trict of Illinois removed from their on those the basis of remarks that cast serious doubt a direct or indirect interest in on his impartiality. Judge Landis challenged such terms and conditions his listeners to find anyone who had ever said ment should be at I to advertise and disseminate facts and informa­ with ditions of fully to persuade others to concur in an

In his McReynolds called the by the black alliance "mobbish in­ terfcrcnce with the individual's of ac­ tion.... Under the tortured meaning now at­ tributed to the words 'labor dispute,' no

intolerable violations of his freedom if members of some other reli­ them

In a 1921 case involving three defendants of Ger­ DISQUALIFICATION? man and Austrian heritage charged with violations of the Act, district court Judge Kenesaw might ask a judge with such Mountain (pictured) was accused of impartial­ a himself ity for having made biased remarks against German from any case in which race or ethnic back- Americans. McReynolds dissented from the majority's upholding of Landis's removal from the case, on the in the But ground that he was not prejudiced against the indi­ viduals themselves but against a class of individuals. 266 JOURNAL OF SUPREME COURT HISTORY anything worse than he about "the Germans." THE END In their affidavits, they alleged that Landis In his last few years, it was thought that had declared, '''One must have a very judi­ McReynolds was holding on only so that cial mind, indeed, not to be prejudiced against Roosevelt could not name his successor228 In the German-Americans in this country. Their 1937, he refused to attend a dinner with the hearts are reeking with disloyalty. This defen­ Prcsident given annually for the Court, and, dant is the kind of a man that spreads this kind in 1939, he did not attend the Court's tra­ of propaganda, and it has been spread until ditional courtesy call to the President upon it has affected practically all the Germans in the opening of the session . When Roosevelt this eountry.,,>226 The majority ordered him was inaugurated for an unprecedented third removed from the case for violating the fed­ term, McReynolds promptly resigned . His let­ eral Judicial Code, which required a judge to ter to the President was only two sentences. "proceed no further" when an attorney filed On February 1, 1941, he left the Bench.m an affidavit alleging personal bias by the pre­ He was the last of the Four Horsemen 23o He siding judge and that another judge be desig­ acknowledged that he had considered leaving nated to continue with the case. McReynolds nine years earlier,23 J and he bitterly lamented dissented, arguing that the judicial code only that he had tried to protect the country but applied to bias againstan individual, nota class "any country that elects Roosevelt three times of like individuals: deserves no protection.,,232 He had earned a Defendants' affidavit discloses no reputation as "an American primitive, resi st­ adequate ground for believing that ing all or nearly all that was not as he had personal feeling existed against any known it. ...,,2 33 Upon McReynolds' retire­ one of them. The indicated prejudice ment, Chief Justice Charles Evans Hughes was towards certain malcvolents from proclaimed, Germany, a country then engaged Forthright, independent, maintaining in hunnish warfare and notoriously with strength and tenacity of co n­ encouraged by many of its natives, viction, his conceptions of constitu­ \ovho unhappily, had obtaiJled citizen­ tional right, he has served with dis­ ship here. The words attributed to the tinction upon this bench for upwards judge (I do not credit the affidavit's of twenty-six years and has left a deep accuracy) may be fairly construed as impression upon the jurisprudence of showing only deep detestation for all the Court. It is hoped that, rclicvcd of persons of German extraction who the burden of active service, he wiJl were at that time wickedly abusing long enjoy his accustomed vigor of privileges granted by our indulgent 14 body and mind .2. laws.... Intense dislike of a class th does not render the judge incapable McReynolds was two days shy of his 79 of administering complete justice to birthday.23s one of its members.227 Calvin P. Jones offers this analysis of the Perhaps. Unfortunately, the litigants, the Justice's long career. public at large and, possibly, not even the judge It is interesting to speculate on what himself can ever be sure that justice is rendered caused McReynolds, without ques­ free of prejudice when a litigant belongs to a tion a scholarly and gifted attorney, class that the judge dislikes so intensely. That to change from a progressive of the reasonable doubt about hi s impartiality is ex­ Theodore Roosevelt era and a liberal actly why the judge must recuse himself. of Woodrow Wilson 's time to an BIASED JUSTICE 267

arch-conservative during the New tion Army243 His bequests also benefited thc Deal period. Perhaps it was not he Kentucky Female Orphans School and Cen­ who changed but rather the spirit of tre College "to promote instruction of girls the age, and he was either unwilling in domestic affairs.,,244 His will revealed that or unable to change with it. Perhaps he had "adopted" thirty-three British children changing from the executive branch who were victims of the Nazi blitzes during to the judicial branch of government World War II 245 Before his death, he had cor­ gave him a different perspective of responded with and provided financial support the law. Perhaps as the liberal of yes­ for the children.246 terday, he became the conservative In a ceremony at the Court marking of today, and the reactionary of to­ McReynolds ' passing, Solicitor General Philip morrow. Perhaps he was simply not B. Perlman captured the essence of the cantan­ the right person at the right place at kerous and conservative Justice's role during a the right time. Perhaps his interpreta­ pivotal point in the nation's history. Perlman's tions of the Constitution were correct remarks could be taken as a tribute to princi­ and the so-called "reforms" brought ple or an indictment of recalcitrance: "It was about by New Deal legislation were not James Clark McReynolds who changed. It really pervcrsions of the law as it had was the times, the country, the prevailing con­ originally been intended and as it had stitutional views and the Supreme Court that always been interpreted previously. changed.,,247 Perhaps changing industrial and eco­ nomic conditions had made new legal interprctations inevitable and Ju stice McReynolds simply was unable to ENDNOTES understand or to accept these chang­ I Henry J. Abraham, Justices and Presidents: A Politi­ ing conditions 23ii ca l History of Appointments to the Supreme Court 176 (2d ed, 1985). r fhe Supreme Court Justices: Illustrated Biographies McReynolds died on August 24, 1946, 1789-1993 326 (Clare Cushman, ed ., 1993) [hereinafter at age 84, "alone and embittered" as he had Cu shman) . lived 237 Death came at Walter Reed Hospi­ 3Michael Allan Wolf, James Clark Mcreynolds in The tal in Washington, where he was being treated Supreme Court Justices: A Biographical Dictionary for stomach cancer, bronchopneumonia and 29 7 (Melvin I. Unl fsky, ed., 1994). 4Stephen Tyree I'arl y, Jr., James Clark McReynolds and a heart condition. 238 Announcing his passing the Judicial Process 24-27 (June I 954)(unpublishcd Ph.D. at the opening of the Court's term that fall , dissertati on, University of Virginia)(on file with the Al­ Chief Justice Fred Vinson declared, " He was a derman Library, University of Virginia) . vigorous, capable, determined, and forthright sCushman, supra note 2. member. His death brought to a close a dis­ 6[arly, supra note 4. 7Ca lvin P. Jones, Kentllcky's Irascible Conservative: tingui shed career and a life of devotion to Supreme Court Justice Jumes Clark Mcreynolds in 57 The duty.,,239 McReynolds was buried with hi s Filson Club Historical Q. 20, LI (Jan . 1983). 240 family in his Kentucky hometown No rep­ SEarly, supru note 4, at 29 . resentatives of the Court that he had served 9fd. at 3fi. for twenty-seven years attended the funeral, as IO/d. at 24-25 . was customary241 Known to have been fond 11Cushma n, supra note 2. 12fd. at 327. of children,242 he left the bulk of his estate 11/d. to charities, including $1 OO ,O()() to the Chil­ 14Early, supra note 4, at 43 6. dren's Hospital in Washington and to the Salva­ IS/d. at47. 268 JOURNAL OF SUPREME COURT HISTORY

James Clark i1.1{·ff,c'1!J1.nlf.'" 17. 17 Early, at 33 n. 18. loAlpheus Thomas Mason, William Howard Taft: Chief Justice 197 (6th cd. 19Cushman, supra note 2, at 330. 1993). supra note 4, at n. 6. at 205. at 400-01. at 211. "'2M at 22, 51. 68Abraham, supra note 198 n. 129. Bid. Biography Resource supm note 69DougIas, supra 110te 50, 19. L 70ld at 6. 2, at 327. supra note 4, at 80 n. 72qlloled il1 Mason, note 18. at 195, 73Jd. 74From the Diaries of Felix Frankfurter 241 (Joseph 28Jd. ed., 1975)[hereinaftcr UlsilJ. 29jd. Ul 1. 75Mason, supra note IS, at 216. 301d. at 49-50: Biography Resource (enter, supra note 16, 7Gquoled in id. at!. 77Lasb, supra note 74, at 10. Rc"ou[c~ Center, supra note 16, at I 78Doug]iI!;, supra 32[arly, SUfil'l1 note 4,01 79The Forgotten Memoir of John Knox; A Year ill the "Wolf, supm note 3; Philippa Strum, Louis 0, Bran­ Life of a Supreme Court Clerk in FOR's Washington deis: .Justice for the People 207 (1984). 38, J 46, (Dennis.l. Hut,ilinson and David 1. 1~3 Melvin I. Urofsky & Oavid W. Levy, Letters of Louis G,UTOW, eds. 2002) [hereinafter Hutchinson and Garrow). O. Brandds .\5 RDDouglas, silpra note 59, at 13-14. 35/d.at41. &1 HutehltlSOn and note 79. 13,21,90-9[, O('Strum, supm note 33. lOll. 146-48. 37Biography Resource Ccnter, supra note 16. S21d. at 105. "hlrly, slipra 4. at 94-95. 33DongJas, supra note 10. 39Abrahall1, SliPI'll nole I, at I 84M. at 13. 40Early, supra note at 71. S,1d at 14 41Biography Resource Center, supra note I S6Abmham, supra note I, at J77. 42fd. 87Dollglas, supm 59, 169. Urof:sky & Levy, suprll note 34, 224. s8Abrahal11, sapra 65, at 197 n. 128; Hutchinson and 44/d. at 259. Garrow, slIl'm note 79, at 9. 45Cushman, note 2, at 89Hutchll1son and Garrow, supra note 79, at 10. 46Abraham. supra note I, at 176; 3 Urofsky & Levy. supra 90Jd. at 12, 116,250, note 34. at 35-36 11. 9tAbraham, note 1. 47Robert Scigliano, The Supreme Court and the Pres­ supra note 4, at 130 (endnote omitted). idency 136 (I '.J71). 93La811, supra at 18. 48Abraham, supra note I, 175-76. 94DougJas, supra 59,. at 14. 49 /". at 174. 95Abraham, supra note 65, 5DEariy. supra 4. at 95. 96Cushman, supra note at 330. Slid. 97quoled in Bickel, supm note 56, S2Abraham, supra I. 9SMason, supra note 18, al [7. s31d at 42. 991d. 5{Early, supm note 4, at 95-96. IOlJfd. al 165-67, 55 Mason, supra Dote 18, 195. IOlquoled ill id. at 217. 56Alexander M. Bickel, The Unpublished Opinions of supra note 4, at 127-28 M!', Justice Brandeis 245 (1957). I03Douglas. supra S7Eady, SUpl'll note 4, at 80. 104 Early, supra notc 4, at 91-92. S8Mason, supra note at 215 (endnote omitted). !05Stru111. supra note 33, at 59WiJliam O. Douglas, The Court Years 1939-1975, The 1064 Ufofsky & Levy, supru note at 26 n. 3 Autobiogral>hy of William 0, Oouglas 13 (1980). (parenthetical attnbutlon omitted). 6Oqltoled /11 Bickel, supra note 56, at 204. IQ7Abra!1am, Slipi'll note 65. BIASED 269

Ion Urofs[,.'Y & .>utJl!I note 34, at 35-36 11. 2. loOMaple Flooring Ass 'n I', VIIi/I'd Slal<:" 268 U,S, 563 I09Abraham, SUpl'Cl note 65, (I 1lo'luoled ill id(jo(J{l1ole omilled) [Original source for at 587 (McReynolds, 1., disseming), this quote is Mason William Howard Taft: Chief Jus­ v, Brims, 272 U,S. 542 (1926), tice, 1965 source author used throughout 'If v Weslern Ivlem Co., U.S, the aniclc,] 559 (1926), 11l5Urofsky& 34,Ht611. I 54Wolf, at 298. I 55William Rose Benet, The Reader's Encyclopedia 360 (2d ed" 74, at 176

,\lII'{'(I note 79, 'It xix,

. I Hoarly, supra 110te I60Douglas, note 59, ' 191d. at 88, 1(1I Biography Resource Center. SII!!!'O notc 16, at 3, : '!lid at 90. 162Jethl'o K. Lieberman, The Evolving Constitution 12lAbmham, supm note I, 230 (1992)(endnote 0I1li1l0d).

. 22Jotle~. ",U/}f'lI note 7tat 161\Vol f, xI/pm note 3, at 299, mRobert L Carter, Fr<:!edoffl o/Associaliot{, JI1 Reason I 64quoled in Early. supra note 4, at 417, 422, and Passion: Justice Brennan's Enduring Inl1llence I65SaOHlei Hendel, Charles Evans Hughes and The 73 (E. Joshua Ro,c!1eWl1i and Bernard Schwartz, eds" Supreme Conrt 204 (19511(endnole omitted), 1997) 3, at 14-1 548,

1.. dissenting) note supra [6, at 3, 12liAIpheus Thomas Mason, The Supreme Court from v. JOI1(,.I' & Laughlin Steel Taft to Burger 41 (1979), Corp" 301 U.S. I, ( 1937). 129Douglas, SlIpl'Cl note 59, at I v, Unil('d Slates, 295 U.S, 495, LlOScigiiano, supm note 47, 55 S,C!, 837 (1935) 13 IEarly, supra note 4, at 97, I72Jol1es & Laughlin Steel, 57 S.C!, at 630--34 132Cushmal1, supra note 2, at 328. (McReynolds, 1., di:;senting) I 11 EarJy. supra note 4. at 99-100, 103-04, 173fd 57 S,C(. at 638. IHId, at 105. I 741d 57 S.Ct. at 639, 135fd. at 107-08, 175fd. 57 S.Ct. at 640, Ll6/d at 110. I )[,barly, supra note at I supra note 56, at 204, I77ld, at414-16 supra note 4, at 389, 178fd. at 406 In Mason, supra note 179M at 159. slipra note 157, l~uHutchinson and Garrow, supm note at supra note 4, at 101. 141Biography Resource Center, supra note 16. 104. 142quoled in Mason, supra note !8, 164 (endnote 1~3Hendel, supra note 165, at 249-50, omitted) I 84Early, supra note 4, at 134, 141Scig1iano, supru note 47, at 102 o. 18, 144Biography Resource Center, supra note 16, 1861d at 83, H'qu(!led in 5 Urofsky & Levy, supra note 34, at 239 I, I 871d, at 84-85 (footnotes omitted), 146Gary W. )'otter, Controversies in White-Collar I~~ld. (footnotes omitted), Crime 25 (2002}(endnotes omitted), I S')HlItchinson and Garrow, supra note 79, at I Trade Comm 'n v, Beech-NIII Pucking 257 U.S, suprCl note 165, at 306 n. 3. 441,42 S,C!, 150, 154-55 (1922). note 4, at 99. at 156 (McReynolds, V£fl.t)r,It11lm. supra note I, at 177, iTH,I{"itnl:im1< omitted) 193Dougla" supru note 59, at 163, Comm 'n " Curlis Puhh,hll1g 260 Society of Sisl('/',\', 268 U.S, 510, 210, 213 (1923). (1924). 270 JOURNAL OF SUPREME COURT HISTORY

19.1 Douglas, supra note 59, at 15 ; for a novel argument that 22 lid. 305 l;.S. at 353 (McReynolds, 1., di sscnting). Mc Reynolds and the other "horsemen" wcr~ " closet lib­ 222/d. erals" who supported " left-liberal agendas" in many low­ 223N('\\' Negro Alliance v. Sanilmy G/'{)('(!/)' Co., 303 U.S. profile cascs during their tenures, see C ushman, Barry, 552, 555--56 ( I 9JX). Th e Secret Lives of the FOllr Horsemen, 83 Va . L. Rev. 2241d. 303 U.S. at 562· 03. 559, 560-61 ( 1997). 2251d. 303 U.S. at 563-64 (McReynolds, 1. , dissenting) I 96Pierce, 268 U.S. at 534- 35. (footnote omitted). 197/d. 26K U.S. at 536. 226Berger v. Unil ed Slales, 255 U.S. 22,4 I S.Ct. 230, 23 I 198Meyer v. Slale o[Nebraska , 262 US. 390,43 S.Ct. 625, ( 1921 ). 626(1923), qlloting 107 Ncb. 657, 187 N.W. 100. 227 /d. 4 I S.Ct. at 236 (McReynolds, 1., di ssenting).

I 99 1d. 43 S.Ct at 628. 228Earl y, supra note 4, at 175-76. 20U Powel/ v. Alabama, 287 US. 4 5, 57-58 (1932). 229 Biography Resource Center, Slipi'll note 16, at 3. 20 lid. 287 U.S. at 68-69. 230Abraham, supra note I, at 20 I. 20 2L ie berman, sup'" note 162, at 469. 23 1Early, supra no te 4 , at 174. 20 }PolVel/ v. Alabama, 287 U.S. at 77. 2.12 Abraham, supra note I, at 227, citing 5 Supreme Court 204lvloore v. Dempsey, 261 US. 86,43 S.Ct. 265 ( 1923). Hi storical Society Q. 4 (Wi nter 1983). 205 1d. 43 S.Ct. at 267 (McReynolds, 1. , dissenting). 233 Bickel, supra note 56, at 244 . 206 Buller v. Peny, 240 U.S. 328, 36 S.Ct. 258 (19 16). 234 Retirement of M r. Justice McReynolds, 312 U.S . v 207!d. 36 SCt. at 259. (Feb. 3, 1941). 2081d. 36 S.Ct. at 259-60. 235 Biography Resource Center, supra note 16, 209New l'ork ex reI. B/yant v Zimmerman , 278 U.S. 63,49 at 3. S.Ct. 61 ( 1928). 236Jones, SUplV note 7, at 29- 30. 2101d. 49 S.O. at 66-68 (McReynolds, 1., d issenti ng). 237Abraham, supra note I, at 227. 2IJAldridge v. United Stales, 283 U.S. 308, 51 S.Ct. 470 238Hutchinson and Gnrrow, supra note 79, at 262- 63; Bi ­ 473 (193 1). ography Resource Center, supra note 16 , at 3. 212/d. 5 1 S.Ct. at 474 (McReynolds, 1., dissenting). 239Death of Mr. Justice McReynolds, 329 U.S . vii (Oct. 7, 2IJNixon v. Herndon, 273lJ.S. 536,47 S.Ct. 446 (1926). 1946). 2I4Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 487 (J 932). 240 Biog raphy Resource Center, supra note 16, at3. 215/d. 52 S.Ct. at488 (McReynolds, 1. , dissenting). 24lCushman, supra note 2, at 330. 216 1£1. 52 S.Ct . at 489. 242 Douglas, supra note 59. 2 17 1d. 52 S.Ct. at 490, 491 . 24 3Abraham, supra note I, at 227- 28. 2181d. 52 S.Ct. at491, 493. 244Bi ography Resource Center, supra note 16, at 3. 219 M 52 S.Ct. at493. 245 Abraham, supra note I, at 227. 220Missouri ex rei. Gain es v. Canada, 305 U.S. 337, 349­ 246 Wolf, supm note 3, at 299. 50 (1938). 247q uoled il1 Bickel, supra note 56. The Graver Tank Litigation in the S preme Court

TIMOTHY

that have tl1m function !md bar has thai effort This article will focus on an carlier era in law "in the process the in the 1949 Term of the Court-to see what lessons that present The second the process which it was decided. While thcrc foundation for the is a monumental of the Graver Tank Paul Janickc that in the

the terms of

decisional process of the "'""'-P'''P The Tank method and

fluxes, There to be little _jll.;'''JI\}''

more than five times thicker than methods and at rates more than five times as fast 5 In 1933 the inventors all 10 Union the parent company of relevance of Graver the Tank, it is ·,nllwrmr.<1 to look back at the en- erated more than six million dollars in vironmen! in which the case arose, and the for licensees 272 JOURNAL OF SUPREME COURT HISTORY

The Graver Tank patent was for a new welding method and companion welding fluxes--a significant invention. The discovery allowed for solid welds of plates more than five times thicker than previous methods and at rates more than five times as fast.

In 1933, the inventors of the patent assigned ali rights to Union Carbide, the parent company of Linde Air Products. By 1947, the patent was generating more than six million dollars in royalties yearly for Linde. Pictured is a Union Carbide plant in West Virginia. LITIGATION IN E SUPREME COURT 273

licensees for the Graver Tank patent included GM, Chrysler, Ford, the Army, and the Navy. It was used to make critical welds for U.S. military sh ips, I ncl ud log liberty such as this one, made on Mare Island, a naval shipyard, in 1942.

secure no benefit from the invention unless the four remaining claims were held to have infringed. Graver Tank was a materi­ The desire to compensate the patentee, given als that t1uxes from Lincoln Electric the ofthe invention, was no doubt in 1945 when influential in the outcome of the case. Lincoln and Graver The as to was that Northern District or "alkaline earth metal on 29 used which was not an alkaline There was thus no Iit­ of the of lIet claims. I(i In the interest the literal lan­ not describe the details of the over glmge ofthe claims: "We have used calcium si 1­ which can be found in the Janicke icatc and silicates of... manganese. . . the "[5 274 JOURNAL OF SUPR HISTORY

identi­ and result with that the silicate that no evidence wag intro­ line earth metal til lieates. that the 1}cclised On the Seventh Circuil overturned district

valid these four flux did Dot

Robert H. Jackson's rna· opinion in the first Graver Tank deci­ sion was cursory and routine, and it made no reference to the doc­ trine of equivalents. In an unusual move, the Court agreed to hear a re-argument the follow­ ing term. THE GRAVER TANK LITIGATION IN E SUPREME COURT 275 the length of the majority and the ab­ tant companion to literal infringement neces­ sence of dissent suggest that it was viewed as sary to adequately patent and and indeed it The opinion decided holding that the flux claims were un­ little of significance resolving the par­ der the doctrine of There was ticular case, devoting most ofthe discussion to no that the Court seven years ear­ the Court's reversal of the court of appeals on lier had questioned the doctrine's continued val idity issues. on the issue of Justices Hugo L. Black and William O. there was no mention of the doctrine Douglas dissented. Justice Douglas wrote a perhaps because the doctrine received short dissent asserting that the had cursory and rather belated treatment in the dedicated manganese silicate to the public parties' briefs. The failure to mention the doc­ when it disclosed the equivalent in the spec­ trine is curious the fact that ification and failed to claim it,,7 just seven years earlier, in Exhibit the dissent also noted that even wcre Court (which included Justice had the doctrine of equivalents a viable rule, it had been applied in this case be­ was consistent with the cause the flux had been statutory "that the patent shall disclosed in a describe the invention.'>27 As to infringement cannot cover claims of the four valid flux the sim­ 38 Justice Black's dissent was noted that the district court had found the longer, and Justice this Lincoln flux to be identical" to the Linde products and concluded that no cause for reversaL,,28 didal emasculation Justices Black wrotc a separate concurrence 40 Justice Black concluded directed solely to the issue of validity, which Justice Douglas In virtually every Court case the Court's involvement ends with the issuance of its opinion. Petitions for are often but are rarely The leading Court treatise identifies a hand­ ful of cases in which the Court has Graver Tank was one of cascs.:10 The case was argued in the next Term of Court and resulted known as the Graver Tcmk opinion was rendered in less than two months.3} it was "hort33 But time there was a vigorous dissent. And this time died and been rc­ the The doc- Justice Sherman Minion, had been rerHU(;ea Clark. Justice Minton did not lice Jackson.35 becau:it: had salon the Seventh Cin.:uit viewed the of the that had ruled in of the the doctrine of holder. 276 JOURNAL OF SUPREME COURT HISTORY

The main protagonists were Justices as thoroughly studied as Brown v. Board of Black, Douglas, Frankfurter and Jackson. Edw.;alioll,47 there is still unccrtainty and con­ Justice Black had, of course, bccn a Scnator troversy as to the details of what happc ned from Alabama, and a strong supporter of the within the Court. The problems of recon­ New Deal, wounded at the time of his ap­ struction are daunting. The rccords of some pointment by allegations ofmember~hip in the Justices, such as Justice Jackson, were not Klan.43 Douglas had been the Chairman of organized, to put it charitably, in a meticu­ the SEC, and again a strong supporter of the lous way. Other records were destroyed. For New DeaL44 Frankfurter had been a profes­ example, Justice Black before his death or­ sor at the Harvard Law School who had made dered the destruction ofhis conference notes48 himself unpopular with his colleagues by lec­ The rceords of Chief Justice Vinson and turing them at every opportunity and on ev­ Justice Reed are archived at the University of ery possible subject.45 Justice Potter Stewart Kentucky, which has been helpful in supply­ later would say that Justice Frankfurter"s lec­ ing copies of pertinent files. Thankfully, Jus­ tures at the Court's conference always lasted tice Burton kept careful conference notes and fifty minutcs-no more and no lcss-bccausc archived his confcrence agendas with some this was the Icngth of a lecture at the Harvard handwritten notations in the margin. Unfor­ Law School. And Jackson, Attorney General tunately, there is no recording of the rehear­ under Roosevelt, was now returned from his ing Nonetheless, based on what is stint as the chief United States prosecutor in available, the outlines of what happened are the war crimes trialsY' reasonably clear. It is not a simple matter to unpack what Lincoln and Graver Tank filed a petition happened at the Court with the pe­ for rehealing on March 12, 1949.49 While the tition for Even with respect to cases petition never mentioned the doctrine ofequiv­ its argument nccessarily repudiated the doctrine as a valid rule in patent law. 50 Lincoln asserted that the Court had erroneously treated the trial court's finding of infringement as a finding of fact when infringement rested in truth on a conclusion of law. 5I Lincoln noted that the trial court had relied exclusivclv and improperly on the in order to de­ termine whether Lincoln'5 flux infringed on the Linde patent, thereby rcading the cation il1to the claim.52 This, Lincoln argued, was directly contrary to the Court's ment that the "claims measure the Linde waived its right to file a response. likely believing there was little chance the Court would be interested in rehearing a case on four flux claims on which the district court, the Seventh Circuit, and the Supreme Court itself had were infringed.54 Unfortunately, there is no recording of the rehearing The was scheduled for conference on argument for Graver Tank. Thankfully, however, Jus· 2 and then again at three succeeding tice Harold H. Burton kept careful conference notes 5S and archived his conference agendas with some hand· conferences on April 16, 23 and 30. Justice written notations in the margin. Burton's notes record what happened. At the THE GRAVER TANK LITIGATION IN THE SUPREME COURT 277

April 2 conference a vote was apparently de­ At the April 30th conference the case was layed at the request of Justices Black and "held for further memo,"71 apparently a ref­ (curiously) Jackson because of concern about erence to the memorandum being prepared by the "infringement point."s(' At the next con­ Justice Jackson, which he eventually circulated ference a vote was taken57 Six members of on May 6th.72 Perhaps armed with Linde's be­ the court voted to deny the petition.58 Only lated response, Jackson's memorandum was a Black and Douglas voted to grant; and Rut­ detailed rejoinder to Justice Douglas. It went ledge abstained59 But again at the request of through several drafts, including a prelimi­ Black and Jackson, action was dcferred be­ nary review by Justice Frankfurter.n For the cause of concern "as to whether infringement first time, Jackson's memorandum addressed is properly settled.,,60 The case was passed the doctrine of equivalents in detail, citing the again on April 23rd-Justice Burton's con­ Court's 1853 decision in Winans v. Denmead ference notes record: "Hold for [Black] & as support for the doetrine.74 The memoran­ [Douglas]." dum started off gently enough, "[a] petition Shortly after the April 23 rd conference, for rehearing ... is supported by an opinion on April 27, Justice Douglas circulated his [presumably the draft Douglas dissent] which views to the Court.61 Douglas's views took requires careful consideration, and perhaps the form of a draft dissent from a presumed an opinion, to avoid mi sunderstanding ....,,75 denial of a rchearing.62 Douglas noted that Jackson noted that he had "not the slightest ob­ the important principle that "the claims mea­ jection" to reconsideration in order to address sure the grant" may have been violated by the the qucstion "which is inherent in the result" Court's initial opinion63 Douglas noted that laid down in the prior decision76 This civility the claims now he ld infringed were limited to was short lived, however. The memo immedi­ earth silicates and that the infringing product ately attacked the basis for the Douglas opin­ was not an earth silicate, although found to ion, taxing Black and Douglas for supporting have been "substantially identical in operation the original result and now questioning it. 77 and result" \-vith the claimed composition.64 Jackson continued his attack, observing that The opinion did not mention the doctrine of those calling for rehearing could do so "upon equivalents by name.65 Justice Douglas's opin­ the ground that they have now changed their ion also mentioned- almost as an afterthought-­ view and now believe that they were in er­ that it also appeared as though prior patents ror .. . or ... that they werc not aware of what anticipated the four nux claims as written.66 they were agrecing to ... . But it cannot be at­ On April 27 . .Justice Black agreed to join tributed to any inconsistency in this Court's Douglas's opinion.67 opinion .. . ifthe doctrine ofequivaJents i ' still Just two days after Douglas circulated his the law. ,,7R views to the rest of the Court, Linde, appar­ Jackson spent the remainder of the mem­ ently worried about the Court's delay. filed orandum reviewing the doctrine of equiva­ a belated response. os Unlike the petition, the lents and its role in determining infringemcnt April28lh response directly addressed the doc­ and not claim validity.79 Of the doctrine's trine ofequivalents, arguing that a valid patent lack of mention in hi s own opinion in the is entitled to a "range of equival e nt s."6~ Linde case, Jackson blandly stated, "the doctrine of supported the Court's prior decision by distin­ equivalents was so clearly exposed by tbe gui shing between claim construction, in which courts below that in absence of questioning reference to the specification could not be it ... I saw no occasion to prolong the opinion used to expand the claims, and infringement by by discussing matters amply covered ...."so equivalents, in which reference to the specifi­ Nonetheless, in concluding, Jackson con­ cation to understand equivalence was proper.70 ceded that "[t]his is a good case to review 278 JOURNAL OF SUPREME HISTORY

the doctrine ofequivalents, ifthe Court desires can draft the to do 80.,,81 claims to covel' the entire invention. On 7, the after Jackson's memo- the opin ion assumed that the Court voted five to three ualiol1 of the doctrine of equivalents was re­ with Murphy stare decisis without consideration ofwhether the 1853 Winans decision. on which had been eroded

Jackson, and 84 The decision granting which issued on May 16, limited the issue 10 the of infringement ofthe four flux claims and argument on the applicability of the doctrine of equivalents.X5 the scope The reasons for the vote can haps that only intentional probably be from Justice Reed's ited. it did not resj'lol1d to the dissent's notes.86 Justice Reed was first concerned as suggestion that the disclosure of the equiva­ to whether the doctrine of point lent in the soecification constituted surrender. had becn oroncrlv raised. satis­ did not, as did he concluded: "I think disclosure in did not discuss the art covered the very equivalent now allowed. There may have been a number of rea­ sons for this lack

holding that the four flux claims were liter­ a ally infringed, his to con­ claims to ellcompass disclosures reflected in sider rehearing in his memorandum the snecification but not in the lamruage ofthe to the Court his claim that the opinion was in fact based on the doctrine of Jackson wished to avoid the once was Justice Jackson, open to arguments that would a ben; of the Court The different result and that would have enhanced did not do. the embarrassment. It is reasonable to assume that other members of the majority probably felt the same way. Second, the Graver Tank has a per­ that it creates; the evasion of the examination sonal quality to it. On the side ofthe dissenters, process that it and the failure of the one is left with the distinct that they doctrine to give adequate notice to the public enjoyed embarrassing Jackson of the patent's coverage. The opinion focused the sloppy quality of the on the benefits of the the dissenters' objective had been to did not discuss the argument that the about a thorough reexamination of the doctrine ofequivalents was unnecessary, given doctrine ofequivaients, it seems likelv that THE GRAVER TANK LITIGATION IN THE SUPREME COURT 279 would have waited for another case unencum­ That no doubt helped to make Jackson par­ bered by the baggage of an initial adverse de­ ticularly sensitive on the question of his ad­ cision by the Court. vancement within the Court to the position of The same was true on Jackson's side. For Chief Justice, which he much desired. When example, Frankfurter's response to Jackson's in 1946 Chief Justice Harlan Fiske Stone had memorandum stated, "Bob, Your memo on died (and Jackson was away in Nuremburg), Graver Tank petition for rehearing is a per­ Jackson hoped that he would be named as Chief fect piece of exquisite devastation. My decent Justice and believed that he had been promised nature thinks this will put an end to this fool­ the position by Roosevclt.92 He was not pro­ ish business-my meaner side hopes for public moted, and Jackson attributed his loss, prob­ exposure!,,89 And a note from Jackson's clerk ably unfairly, to Justice Black.93 Jackson re­ to the Justice stated "I think you have taken taliated by publicly attacking Black for sitting care of Douglas but Good.,,9o on a case involving his former law partner.94 It There was, in other words, a lack of col­ has been said that "[t]here was no doubt in any legiality in the discussion. The reasons for this one's mind that there was a war taking place are not difficult to discover. There was long­ on the Court during the 1940s and 1950s."95 standing personal animosity between Jackson As with any war there was collateral damage, (and Frankfurter) on the one hand and Black here to the decisional process. and Douglas on the other91 President Franklin A third and more significant difficulty D. Roosevelt had toyed with Jackson when he arose from the fact Jackson and Frankfurter initially appointed him to the Court in 1941. on the one hand and Black and Douglas on the

This picture reflects the composition of the Vinson Court the year that the second Graver Tank opinion was handed down. Justices Jackson (standing, second from left) and Frankfurter (seated at left) on the one hand, and Justices Black (seated, second from left) and Douglas (seated at right) on the other hand, had fundamen­ tally different views of patents. 280 JOURNAL OF S E HISTORY other hand had fundamentally different views judges ill fits them to dis­ of In the years before Graver the duties cast upon them by patent patent issues were an important component of ,,99 Justice Jackson's clerk at the the Court's doeket.96 A central issue was the James Marsh, confirmed that Jackson scope ofthe patent monopoly. This shared these concerns. I00 issue arose in a number of different contexts, the Court in Grm:er Tank received including antitrust; the patentability of poor assi::;tancc from the bar. The government lIlar was invited to file and did not file an am­ and obviousness. The in some cases icus brief. The the In others it was not. Where briefs were invalidated, Black and buried the issues among pages were almost always with the of technical material, concentrated heaVily on Frankfurter and Jackson sometimes validity during the initial and failed with Jackson in one case to highlight the doctrine of eauivalents as an patent that is valid is one which this Court has important issue on appeaL not been able 10 get its hands 011."'17 Not infre­ Some of the institutional problems re­ quently, when the Court upheld a Daten!. Black flected in Graver Tank have no modern and Douglas forcefully counterparts. We are unl to sec another more than eight Supreme Court rehearing in a easc, and thc Court and the the personal contliets within the Graver Tank Court are long gone. There is no indication that m()n{)p()lvwaS not a miscon­ the modern Supreme Court Justices are struction of tbe statute, but a misconstruction divided over the role ofoatents in a

institutional N""",,,~'h'n,"" This concern uboul institutionul petence extends to interest in and clerked for Justice and herbnd of the of one of his earlier clerks this nroblem with wlul! is now known coming into the Justice's chambers 'with a deference to ad­ smile on his Tht~ Ju~tice asked him with greater institutional he was smiJil1lz. and the clerk said that he had competence. WI That solution is nol available discovered th~lt the was recused in tohim for or ,mbstantive the clerk Ibr Chevron

Justice Frankfurter the oftile courts to address and decide patent cases: "It is an old observation that the training of as THE GRAVER TANK LITIGATION IN THE SUPR COU 281

for that the Court is IJld. at 199. rests with the Fed­ 14!d. eral Circuit, but also with the district courts, ['u.s. Patent No. 2,043,960, at [4] coLi, 11.62-65 (filed 9, 1935). the private bar, and the government as amicus. 16Unde Air Prod, 86 F Supp, at 199. In Graver Tank, the Court evidently did not 171d at 199-200. receive the assistance that it needed. There is ISLinde Air Prods. Co, Graver Tank & ivlfg. Co., 167 reason to think that the responsible entities to­ F2d 1,539 (7th Cir. 1948), better assistance. But, it is fair to 19/d 20M at 538-39. ask whether anyone of us has yet earned an 21 Petition for Writ of Certiorari, Graver Tank i'vtk. CO for the state of affairs fifty I'. Linde Air Prods. Co., 335 US. 810 (l948)(No. years after Graver Tank. Tank & Co. " Linde Air Prod.,. (. US. 810 (1948) (No. 48-185). 'This article is based on a speech at the Amer­ 23Graver & lvlFg. v. Linde Air ican Intellectual 271, 271 (1949); see ulso Justice William 0. Mid-Winter Institute on 2005. Conference :\fotes (Jan. 8,1949) (Container I O. Douglas, \1,lI1uscript Division, Library Note: The attempted reconstruction of the process by which the Court de­ cided Graver Tank would not have been pos­ 26See sible without the excellent work of my intern, 27Exhibil SUPI}!v Co. Palents Corp" 315 US. 126, 136 (1942). then a student at The George 2SGraver Cu, ~ 336 U.S, at Law SchooL who made 280-8! (Black, J, concurrIng). many contributions. The foremost ofthese was 30Grm'er Tank & Co. " Linde Air Produc/s 337 the libraries and review­ US 910 (1949). ing the papers ofthe Justices who sat on Graver ] I C/'CI\'er TUllk & Co, v, Linde Tank . U.S. 605 (l950).

.10'/'(/\'1''' Tall/; & ,\lfg ('0. v. Lilldc Ai,. Prods. Co., U.S.

605 (1950), udhering (In reh 336 US. 271 (1949). 2A SIz

178m\\'11 I', Board ofEducation, 347 U.S. 4X3 (1954). 72Mrl11<)l'al1dum for the Conference by Me Justice Jack­ ~"See Roger K. Newman, Hugo Black; A Biography 610 SOI1, Container 15, Stanley F. Reed, Public Policy (1994) (chronicling Justice's Blaek di,trus( of such con­ Archives, University of Kentucky, Lexington, Ky, Circu­ fidentiaL yet informal records as true representatives of lation notes on the back ofthe opinion date the circulated history), copies to May 6,1949. See, e,g., id, Marginalia by Justice 49Petitioners's Petition for Rehearing, Graver Ti:lIlk & Mig. Jaeborl at 1.

CO. I'. Linde Ai,' Protiuct\ Co" 339 US, 605 (1950) (No, 73See general/F ('omainer 158. Robert Houghwout Jack­ 49-2), At the time the petition for rehearing was filed, the son, Manusc:ript Division, Library ofCongress, Washing­ case was still referenced as Nos, J84- I 85 from the 1948 ton, D,C

October Term, but after the rehearing grant the case was 74See Jackson, supra note 72, at 4 (citing Winans I'. Del1­ renumbered to No.2 for the 1949 October Term, mead, 15 How, 330, 343 (1853)). Silld at 3-7, 7sld at 1, )lId at 6-7, '16M at 2, 52/d at 3, 77ld at2, S31d at 4-5, 7Sld, 54See Letter from John T Cahill (Attorney 1,)1' Respondent) '19M at 2-5. to the Clerk of Court, United States Supreme Courl (Apr. SOld, at 3-4, 28, 1(49), as/iJUl1d il1 Douglas, supm note 23, The letter 811d at 5, accompanied the belated Respondent's Answer to Petition 82S('e Douglas, supra note 23, for Rehearing, which was filed with the Court on April 83M 29,1949. 841d 55See ,lustice Burton's Conference Notl'S for April 2, 8SGraver Tunk & iY/fg. Co, v, Linde Air Products Co., 337 April 16, Apnl 23, April 30, and May 7, 1949, Justice US, 910 (1949), j-j,lroJd Burton, Conf"rencc Notes October Term 1948 861ustice Stanley E Reed, Marginalia attributed to Jus­ (Container 16(" ilarold Burian, lVlanuscript Division, Li­ tice Recd on Memorandum for the Conrerence by Justice brary orCongrc,s). Jackson (Container I J5, Stanley E Reed, Public Policy StSee id. at List I Sheet 2 (Apr. 2, 1949), Archives, University of Kentucky), Circulation notes on 57See id at List 2 Sheet 2 (Apr. 16, 1949) the back of the opinion date the circulated copies to May 5sld 6, 1949. s91d 87fd 601d. 88See Gmver Ti:1I11< & Mfg Co, v. Linde Ail' ProdLicts Co., GIS('e Justice William 0, Douglas, Opinion of Mr. Jus­ 339 US 605,608 (1950): see also Sallitur)' Refrigerator tice Douglas on Petition for Rehearing (Container 185, Co. v Win/crs, 280 US, 30,4 I -42 (1929) (finding infringe­ William 0, Douglas, Manuscript Division, Library of ment when accused product was substantially the same as Congress), Circulation notes on the back of the opinion the patented device), date the circulated COllies to April 27, 1949. See, ('g, id 89Note from Felix Frankfurter, Justice, United States Marginalia by Ju,lice Douglas at 2 (back), Supreme Court to Robert Jackson, Justice, United Stntes 62See iLl at 1-2, The opinion was never gil.en a final date or Supreme Court (Saturday) (Container 158, Robert Hough­ publicly reported at the time, presumably because Justice wout Jackson, Manuscript Division, Library "fCongress). Douglas garnered u rehearing j'lr the case. but its premises The note was dated only "Saturday," presumably the Sat­ would r~appeirr in Justices Black and Douglas's dis,ent, urday of May 7, the date or the cOllfcn:llee vote on from the final decision rehearing. (dSe~ id at I, 90Note from James M, Marsh, Clerk to Justice Robert 64fd at 2, H, Jackson, United States SuprelT\e Court, to Robert JL G5fd at 1-2, Jackson, Justice, United States Suprclllc' lOllrt (undated) 66/d al 2 ("[Manganese silicate] had probably been pre­ (Container 158, Robert Houghwout Jackson, Manuscript empted by prior patents."), Division, Library of Congress). (Referencing the Memo­ 67See id Marginalia by Justice Black at 2 (back) randum for the COnfL'fCnce),

6~Rcspondcnt's Answer (0 Petition for Rehearing, Gmvel' 9lSee. e,g, Abrahnl11, supra note 43, at 219; BALL, supra Tank & H~k Co. v. Lind~ Air Products Co., 339 US 605 note 45, at 146-47. (1950) (No. 49-2) 92Set! Ball, supra note 45, at 147-49, ()91d. at 3 93See iel. 70/d 9cl/d 71See Burton, sl/pra note 34, at Apr. 30, 1949 List 2 95Howard Ball & Phillip J Cooper, Of Power and Right Sheet j 87 (1992). THE GRAVER TANK LITIGATION IN THE SUPREME COURT 283

96The Court hea rd at least sixty cases dealing with wither 99Marconi Wireless Telegraph Co. a/America v. United patent validity or patent mi suse in the eight years preceding States, 320 U.S . I, 60 -6 1 (1943) (Frankfurter, J. , dissen t­ the second Graver Tank decis ion. See author file , 1940s ing) (majority opinion by Slone, c.J.). Patent Cases. IOOTelephone Interview wit h Jam es M. Marsh, Clerk

97Jungersel1 l( Ostby & Barton Co. , 335 U.S. 560, 572 to Ju stice Robert H. Jackso n 1948- 1949, United States ( 1949) (Jackson , J. , dissenting) (majority opinion by Supreme Court (Jan . 2 1, 2005). Reed, J.) . IOISee Chevron US. A" In c. v. Naruml Res. De! Co uncil, 98See author fi le, supra note 96. 467 U. S. 837, 844-45 (1984). The Judicial Bookshelf

D. STEPHENSON,

Americans were reminded last as they are every four years, of the central mo­ ment at the the in of the president. In this republican rite, the new or chief executive subordinates himself to the fundamental law of the land. As the Constitution dictates, he enters on the Execution of his Office, he shall take the following Oath or Affirmation: '1 do solemnly affirm) that I will execute the Office of President of the United and will to the best of my preserve, pro­ tect and defend the Constitution of United States. ",I Justices of the Court, other federal and as well as state officeholders, likewise govern only upon a similar "Senators and Representatives .. , and the Members of the several State Legislatures, and all executive and judicial both of the United States and of the several States, shall be bound by Oath or to support this Constitution. And for added and insurance, thc Constitution crowns national statutes, and treaties as "the supreme Law of the and the Judges in every State shall be bound any in the Constitution or Laws of any State to the notwithstanding. Parallel drama unfolds in other venues too. In the half century all nominees to the Court have routinely before the Senate Judiciary 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 interpret and the Constitution. These displays ot tealty pose an the words ofthe document they drafted. After what is "the Constitution" that is to all, had a framework, crafted construed, pro- conferred powers, and im­ and defend[ ed]"? What is meant by an to "this Constitution" that binds all executive,ju­ determine whether a strong government, ac­ dicia], and officers,) For the framers countable in various ways to the governed, Convention in the summer could exercise sufficient power over a ge­ have been ographical area without individ­ from ual libertv. A kev to the success of a ratified THE JUDICIAL BOOKSHELF 285

Constitution would therefore be adherence by teenth Amendment or the guarantee clause of all officials to what it contained. Future Chief Article IV; for instance) that the Supreme Court Justice John Jay "seemed to sugg st as much at has largely, if not entirely, neglected or for­ the New York ratifying convention" in Pough­ sworn, leaving them standing more as civic keepsie. "The meaning of the Constitution aspirations than as judicially enforceable le­ would involve 'no sophistry, no construction, gal principles9 Moreover, tension exists be­ no false glosses, but simple inferences from tween some provisions of the text. How does the obvious operation of things. ",4 one satisfy fully both the safeguards of free Intervening experience behveen that day exercise (freedom/or religion) and nonestab­ and ours, however, has made the answer more lishment (freedom/rom religion) that the First complex, so that, practically speaking, there Amendment guarantees? may be several constitutions operating at once, The Constitution may also encompass or at least contending views about what the more than the tcxt because judges may seek its Constitution is. That was undoubtedly true meaning apart from the text itself. One justice even by the time the Supreme Court handed may turn to the intent of those who drafted and down its decision in Gibbons v. Ogden,5 the ratified its provisions. Another might look to Steamboat Case, in 1824. From the perspec­ documents of the period that describe the kind tive of the beneficiaries of the monopoly that ofsystem the framers establ ished. Sti II another the state of New York had conferred, the Con­ may look to rulings by courts of other lands. lo stitution embodied only modest authority over One has only to consider the many shapes ju­ interstate commerce, while a competing vision dicially imposed on the due process clauses in more friendly to opponents of the monopoly the Fi fth and Fourteenth amendments to real­ contemplated a far grander power. "It has been ize that the Constitution is often much more said that these powers [of Congress] ought to than the sum of its parts. be construcd strictly. But why ought they to Even cListom seems to count at times be so construed?" asked Chief Justice John as part of the Constitution. "Long settled Marshall with a nod toward nationalism. "Is and established practice is a consideration there one sentence in the constitution which of great weight in a proper interpretation of gives countenance to this rule?" Instead, "the constitutional provisions," the Court noted in enlightened patriots who framed our Constitu­ the Pocket Veto Case in 1929. 11 Similarly, tion and the people who adopted it, must be in the Steel Seizure Case of 1952, Justice understood to have employed words in their Felix Frankfurter argued in a concurring opin­ natural sense, and to have intended what they ion that "a systematic, unbroken, executive have said.,,6 Such debates over the nature of practice, long pursued to the knowledge of the nation's fundamental charter, fueled by the Congress and never before questioned, en­ fact that the document is "one ofenumeration, gaged in by Presidents who have also sworn and not ofdefinition,,,7 may have led Woodrow to uphold the ConstitLition, making as it were Wi Ison to observe more than a halfcentury and such exercise of power part of the struc­ one civil war later that "a very wayward fortune ture of our government, may be treated as a had presided over the history of the Constitu­ gloss on the 'executive Power' vested in the tion, ... inasmuch as that great federal charter President. ..."12 Practice may not make per­ has been alternately violated by its friends and fect, but it may strengthen the case for its own defended by its enemies."s legitimacy. Aside from ditferenccs about construc­ So a macro or cosmic way of thinking of tion, the Constitution may also be less than its the Constitution is to consider it as the em­ text. There are, after all, parts of the text (the bodiment of the political system itself. This privileges and immunities clause of the Four­ presumably was what Woodrow Wilson had in 286 JOURNAL OF SUPREME COURT HISTORY mind in his commentary on American search and publication that is now into in the mid-J880s. "The Constitution in opera­ its third decade: The Documentary History " he wrote, "is a very different of the Court of the United States, thing from the Constitution of the books."1J 1789-1800. Much ofwhat contemporary read­ The future twenty-eighth American president ers know about the Court of the 17908 is (or was disheartened to find that the and wi II be) attributable or indirectly to the of executive promised and Documentary first six volumes21 promoted by Alexander Hamilton and at­ Students ofthe Court will therefore be pleased taineu several chief executives prior to to know that volume seven, under the general Grant had been and displaced of historian Maeva Marcus, has re­ by the dominance of commit­ appeared. The contents of this latest tees. The American "model [of] government installment relate almost to the is no longer conformable with its own the Court decided during 1796 and 1797. The nal oattern."15 Wilson contended. eighth and final volume in the now 111 shift of power had become so that will presumably focus on what re­ it seemed anachronistic to think of the pres­ mains: the cases decided in 1798, 1799, and ident any as an elected offi­ 1800. cial. in so far as his power of veto The primary of the Documen­ constitutes him a part of the legislature, the tary History President not be a per­ Court of the manent officer; the first official ofa it has endured. Until at civil !)crvice this era has been treated by writers as more whose sure series of merit­ of a prelude to a with the first act com­ clerk with Marshall's arrival in 180 I, Little wonder that a persists: conception, the Constitution is in a that Marshall was the first Chief Justice. Even stant state of metamorphosis, even the massive first volume of the Holmes De­ formal language of the document but vise History reserved three for little from decade to decade. Several recent the Court as such.2J Reasons of­ books about the Suoreme Court illustrate this ten cited for the routine inattention the pre­ chameleon of the American constitu­ Marshall oeriod has long received include a system. 17 turnover familiar with the of the Jl1 personnel, and a institu­ Court realizes that the Court of, say, tional identity. Of course the business of the the 18508 Court in its first from the Court of the J 790s. tends to what soon was to come. the record demonstrates that those Equally true is the fact that had very to do with the lems abounded. Follm.ving President of constitutional or six initial appointments, he and which there ,vere few. 18 change had President John Adams placed an additional more to do with the impact of personalities seven persons on the Court prior to the lat­ such as Joseph and ter's appointment of Marshall. And the com­ Brooke Taney and with the need for a "balallce­ bination of these two realities combined with wheel" 19 in the of an insti­ numerous and tutional persona. a persona would flicts between national and be one of the ofthe Marshall Such a comoarison is facilitated a vast re­ Court. That it took a while to appear should not THE JUDICIAL BOOKSHELF 287 be Of the three branches of gov­ list of newspapers and ernment, the one totals about 150 without some ofnational the Articles ofConfederation. To be than in first national constitution also lacked a sepa­ for other sources re!lcis like the rate but the per­ outline fbr II scavenger hun!. formed executive functions. What was novel soon after Connecti­ after In9 was the presence cut Senator Oliver Ellsworth became Chief to fre­

versus

Court Historical So­ with encouragement in its served credit tor this Chief Justice Warren and others custom Connecticut with which on the Court. and with additional from the new Chief would have been familiar,3o In various the has both am- demonstrated that the 1789~1800 merit on their own facilitated that Much life has been found be­ neath what hitherto had been a his­ torlcal record. When the author of this re­ view essay examined the first volume of the Documentary History two decades circuit duties arc taken into account, I ago,:'4 he noted a promise made editors Mar­ Goebel's of "abundance" cus and James R, that the set "will con­ seems accurate in terms of the of stitute a collection ofmaterials that no individ­ some ofthe work during 1796 and 1797, ual scholar could to Even February for with the final volume yet to be seen, that cis ions in both r/:21re v, has been more than fulfilled, What was true of United States. Most would volumes one through six remains true for vol­ cur with Marcus's conclusion that these de­ ume seven. valuable materials are cisions with Chisholm jJ, and for the first and for the first Calder as the most momentous of the time such materials are gmhered and entire decade,"'s Reflecting their importance, in one rYare v. and Hylton United States Julius Goebel called the firsl of the two they involved different ques­ years covered in volume seven "lhe Supreme the same Daniel Hylton, a merchant from Courfs first year of abundance,"26 That ap­ Richmond, Virginia, was a litigant in by certainly seems accurate in terms ofthe themselves consume some 300 pages in vol­ number of decisions, , volume seven ume seven, or about one-third of the malll introductory commentary and doc­ body of the book (excluding and uments to some 33 cases,27 To fer­ ret relevant source the editor and the only ease John Marshall ar- her associates combed not the expected Court, involved the manuscript collections but virtually every con- economically and politically sensitive issue of recovcry dcbts that Americans owed to British creditors, Although the had 288 JOURNAL Of HISTORY

In Hylton v. United States, tile first clear-cut instance in which the Supreme Court acknowledged an assumed of judicial review, Daniel Hylton claimed that a tax on carriages and other public conveyances that had imposed by Congress was a "direct tax" and so violated Ariicle I, Section

ended well over a decade the problem of international affairs by credibility to unpaid debts remained very much alive in the its covenants in situations where the national mid-1790s. Ware was decided amidst view confl icted with the ofa state. the uproar over the ratified in A contrary would have cast doubt on 1795, attempted to defuse tensions with Great whether the United States could truly main­ Britain over tain a foreign policy tor the whole without risk tration of estates of that it would be undermined one ofits a wartime statute enacted As man the thrust of na­ confiscated the debt and made pay­ tional power, Daniel was no more suc­ a lawful cessful in v. United States, the first clear-cut instance in which the United States Supreme Court Jated that creditors were to meet with no power impediments. For Hylton, Marshall contended reserved for Chief Justice Marshall's that the treaty could not revive in Marbury v. ivladison 36 a but the Supreme Court state to the jurisdiction of the federal courts In choosing the force of the under the in a suit brought by a citizen of another state, supremacy clause of Article VI over the au­ Chisholm v. Georgia, decided three years be­ thority of the Old Dominion's statute, the case fore Hylton, was the Court's first exercise of marked the High Court's first invalidation ofa constitutional interpretation, but state Jaw on federal grounds. The decision also Hylton's case review to shored up the central government's Dosition in the foreground because he claimed that a tax E JUDICIAL BOOKSH 289 on carriages and other public conveyances that fulsome notes during the other- had been imposed by was a "direct with no equally detailed record surviv­ tax" and so violated the ofArticle I, today could section 9, that direct taxes be not uni­ as Congress had but "in Propor­ us. tion to the Census or Enumeration herein be­ fore directed to be taken, The case Hylton and Alexander Hamilton and Charles fied an order of things that would typify con­ who had become Attorney General after tentious matters in later years: to Bradford's spoke for the United States. the tax on policy and constitutional grounds What is from the distance of more that had gone unheeded when en­ than two centuries is that im­ acted the law were received scant attention ments before the courts, at all ofIredell's Interested persons on both sidcs of the and whether the realized what was at stake. [is] the one that ever came before that Court," insisted Attorney General William Bradford, Jr. in a letter to tentious, mention and seemed to be assumed Alexander Hamilton, whom the United States all present. For on February 23, I to present its case in the the first of argument, Iredell recorded Court. is of the last not only these from remarks by counsel for that the act should be supported, but Hylton: the unanimous opinion of the to declare the thai will bear the public of An Act attorncy, John had secured a divided ruling in the circuit court Presumes it admitted. and advised Hylton to present no case to the Sentiments of the indi­ Justices but rather to let them as vidually. deemed best. Bradford realized the effect that incident to a limited a Court decision not based on full Constitution. 2. Whether Law unconstitutional & came the limits. 1795 Term. Law exceeds the At worse, on the ba­ sis of the 111 circuit com1 which then had become available in form. A short time General Lee ad­ soon relenlecL however and to dressed the same have the government hire eminent counsel to argue on his behalf, to avoid the situation the same position: where, as James Madison noted, there would be no appearance" but Two questions junior & unskilled I. Whether a Court of Justice can volunteers. declare an Act void. Justicc James Iredell did not If the Constitution could not In but he was one of three Justices who contraul the Laws the decided the tax ease,40 It is fortunate laturc a funda­ that he was Iredell took careful and mental Constitution. 290 JOURNAL OF HISTORY

6 Article, in pursuance of & in the re­ c ... rtlrm.',.,' Loan & Trust

2. Whether this Act be UIlWUSH­ ofttle tulionaL ..

On the Hamilton

Admits a Law inconsistent with the Constitution, void[.] Justice Melville Weston discounted the Power to be exercised with ll1odcration[.]46 who made what arguments In seriatim for what reasons and upon what authorities. Justices upheld the CDlltillWlI One suspects that had Fuller and the four eol­ tax, with the consensus his had at hand the rect taxes included only taxes on persons and edited materiaLs on HI'J­ land. Justice Samuel Chase to ton the Documentary History, dicial review few the Court might have spared itself words. Justice Iredell went to in from an instance ofwhat former Justice and fu­ his opinion to demonstrate way ofan arith­ ture Chief Justice Charles Evans Hughes later metical how unworkable and called "self-inflicted wounds."so tax would be. list included two other such sl ",I,;I,;CjJU;;;U the that wounds: Seau v, Sandford and the Legal the Court could have inval idated the statute had Tender 52 decisions which also had they found the tax to be direct. brought the "Court into disesteem."S] Ironi­ suppose for a moment that the "could cally, the Court over which Hughes presided in have" had been the aside the the 19305 contributed its own examples ofsuch of a contrary decision for fiscal "wounds" to the list54 The occasion ofcourse not section 13 of was the confrontation between the Court and would have been President Franklin Roosevelt that climaxed in enactment struck down the famous "Court-packing" in I Court Had that it the Constitution's sesquicentennial year. The would have been suoerfluous for Chief Jus­ circumstances of that and its results tice Marshall in are the of Fr'anklin D. Roosevelt and he did, a of the power. His the Transformation of the instead would have established the conflict be­ edited by political scientist Stephen K. Shaw of tween section 13 and Article Northwest Nazarene SCI­ that the Jatter entist William n Pederson of Louisiana State a footnote at University at Shreveport, and Rhode Island most in constitutional law texts. As for Hylton, Chief Justice Frank J Williams. 55 As volume because both sides conceded the of three in the ME Sharpe Library of Franklin there presumably would have n Roosevelt Studies, the book contains an in­ been no need for any Marbllrv-like dis­ troduction by Shaw plus ten scholarly essays course on the justification of judicial review. organized into three categories: "The That would have been delayed un­ Court: Image and Reality," "The Roosevelt til some occasion when a judicial negative of Court, Law, and Politics," and "Constitutional a statute stoked a political fire. Law as Applied to Politics: The Roosevelt THE JUDICIAL BOOKSHELF 291

Legacy." The collection derives from a confer­ be tamed, or was the "r"'~Hlpnt ence on "FOR After 50 Years" held a decade ing to refashion the Court into his own ago at editor Pederson's campus. The essays Historian James C. Duram of Wichita State leave little doubt that the years 1935-1940 University examines one part of this public amount to the most constitutionally opinion tug of war in his essay in Roosevelt period of twentieth-century American history. entitled "The Battle to Save the Court."(12 His The story should by now be familiar to is a study ofeditorial content during 1937 mORt. In the midst of the Great Depression, a of forty-six daily and weekly newspapers in

majority ofthe Court in a dozen deci­ n ...... "'''. home to Govcrnor Alf Landon who as sions found eleven ofthe president's New Deal the Republican presidential nominee in 1936 measures constitutionally defective at leas! in bested FOR only in Maine and Vermont. In part. Roosevelt saw himself not only as the the 1930s, newspapers were molders of agent ofthe particularly after his land­ opinion, sim­ slide reelection in I but "in a real gense an anointed of Providence."56 Accordingly radiO' was only the president felt to gave the coun­ to develop as a major news source in the mid­ try from that "Court of Melhuseiahs.. s7 who 1930s. Radio's was still on "had planted themselves squarely in the path events and entertainment,(d nnHm,",,, "58 l

One essay in Franklin D. Roosellelt and the Transformation of the Supreme Court studies the reaction of local newspapers to Roosevelt's Court reorganization plan and concludes that once the term "Court-packing" prevailed over, for example, "judicial reorganization," Roosevelt had lost the battle in the public's mind. Roosevelt is pictured defending the plan in a radio broadcast on March 9, 1937.

Court were it to be as a pawn of the the editors perceived as the president's sinister executive. intentions. Editorials in the second group stressed The Court's decision on April 12 in FDR's NL.R.B. v. Jones & ration,67 however, gave them some indication of the . edito­ the kind of rials tended to criticisms leveled that the ed­ Democrats and to muffle tions in order to cast the in ;)UF;f',v;)' that the Constitution was not the tisan Democrats who ques­ bedrock foundation it had hitherto seemed to tioned the wisdom or merits of the bill were be. So editors made the best of the situation portrayed as the Court for its tlexibility political careers for the to the decision as evidence that Not Chief Justice the Court was not hostile to all social cally timed letter ofMarch 22 undercut any need Court was abreast of its docket received con­ on the bench. Finally, siderable publicity as further evidence of what defeat and Justice Willis Van THE JUDICIAL BOOKSHELF 293

Devanter's retirement, the editors aimed their an approach to constitutional interprctation pens at newly appointed Justice Hugo L. Black. going back as far as I 88772~the show-us­ Particularly aftcr Black's Ku Klux Klan con­ why-this-infhngement-on-economic-liberty­ nection came to light in the fall of 1937, the way of discarded, editors condemned the president and called for not ITlerely relaxed. 73 the Justice's resignation. "The fact that Black But the constitutional revolution had (and had accepted Klan support and later resigned continues to have) a sccond dimension that was was cited as evidence of his political oppor­ independent of the first: the Court unveiled a tunism and lack ofcharacter.,,6R "No satisfac­ new set of constitutional values that would re­ tory speech is possible," exclaimed the lola place the old. An early clue was appended as Daily on October 2, after Black's fa­ a footnote to Stone's scntencc on the presump­ mOllS radio address on the matter. "Eithcr he tion of constitutionality in ('(/rolcnc Producfs. was not serious when he took the Klan oath or The footnote's threc paragraphs floated three he is not now. His character is painfully lacking corresponding cxceptions to the Court's ncwly in traits necessary to be ajustice.,,(,q professcd tolerance for majority ruJe, and all Overall, the essays in Roosevelt capture three pointed to invigorated judicial protection the change that occurred~both internally for nonproprietarian civil liberties and civil with Chief Justice Hughes and Justice Owen rights. Under the freshly acquired banner of J. Roberts, and externally because of the new self-restraint, property rights and state rights arrivals in addition to Black. The magnitude would be left to the ballot box. Judicial ac­ of what transpired probably exceeded even tivism old-style was dead; judicial activism Roosevelt's expectations. First, a majority of new-tityle was just around the corner. Thanks the soon revcaled that they had aban­ in no small measure to Roosevelt, the Court or more rlewrotc that accorded property and, to a lesser The second of Stone's ...."""1"".. sug­ extent, state prerogatives a preferred place in heightened the hierarchy of constitutional values, United "which those political processes Srates v. Carotene ProdUC!8 70 illustrated which can ordinarily the judicial metamorphosis that was under the of undesirable way. At issue was the of a Particularly since 1 when the Court first enactment banning the inter- ",'krn('.u!I",1,~prl forthrightly in Baker v. of "'filled milk" had that numerically unequal districts presented Fourteenth Amendment constitutionally legislation nt"C"Tn,,'nn.: have commercial transactions is nm to be pronounced unconstitutional unless in the light of the facts made known or the electoral process. This (Wilsoniun) alter­ generally assumed it is of ~llch a character as ation of the Constitution forms the basis of fo the that it rests upon The Supreme Court and Election some rational basis within the knowledge Richard L Hasen of and experience of the ,,71 In other School In Los the government would Court intervention in the political have to justify a regulation by process has become a feature of the the Justices of the need for its enactment. American poJitical HI; Reasonableness would be assumed from Between 1901 and 1960, the Justices the fact that a legislature had acted. Thus, decided with full opinion on average about THE JUDICIAL BOOKSHELF 293

Devanter's retirement, the editors aimed their an approach to constitutional interpretation pens at newly appointed Justice Hugo L. Black. going back as far as I show-us­ Particularly after Black's Ku Klux Klan con­ why -this- infringement-on -economic-liberty­ nection came to light in the fall of 1937, the is-necessary way of thinking was discarded, editors condemned the president and called for not merely relaxed 73 the Justice's resignation. "The fact that Black But the constitutional revolution had (and had accepted Klan support and later resigned continues to have) a second dimension that was was cited as evidence of his political oppor­ independent of the first: the Court unveiled a tunism and lack of character."68 "No satisfac­ new set of constitutional values that would re­ tory speech is possible," exclaimed the lola place the old. An early clue was appended as Daily Register on October 2, after Black's fa­ a footnote to Stone's sentence on the presump­ mous radio address on thc matter. "Either he tion of constitutionality in CUI'O/CI1C PmdllCls. was not serious when he took the Klan oath or The footnote's three paragraphs floated three he is not now. His character is painfully lacking corresponding exceptions to the Court's newly in traits necessary to be a justice.,,69 professed tolerance for majority rule, and all Overall, the essays in Roosevelt capture three pointed to invigorated judicial protection the change that occurred-both internally for nonproprietarian civil Iiberties and civil with Chief Justice Hughes and Justice Owen rights. Under the freshly acquired banner of J. Roberts, and externally because of the new self-restraint, property rights and state rights arrivals in addition to Black. The magnitude would be left to the ballot box. Judicial ac­ of what transpired probably exceeded even tivism old-style was dead; judicial activism Roosevelt's expectations. First, a majority of new-style was just around the corner. Thanks the justices soon revealed that they had aban­ in no small measure to the Court doned a half-century or more re\vrotc its that accorded propel'ty rights and to a lesser The second of Stone's sug­ extent, state prerogatives a preferred III heightened judicial scrutiny for laws the hierarchy of constitutional values. United "which those political States v. Cara/ene Products 70 illustrated which can to the judicial that was under the repeal way. At issue was the constitutionality of a Parlicularly since I when the Court first enactment banning the inter- acknowledged forthrightly in Bakel' v. of "filled milk" (which had that numerically districts Fourteenth Amendment In upholding the statute, Justice quc~tion. cases challenging constitutionally Stone explained, "... regulatory dubious election rules and have ordinary commercial transactions a on the Court's docket and have is not to be pronounced unconstitutional faciiifa teel mr

The qU;;;;:'LlUI at least with re- process that "'mth,,,,,,1 them is tainted or broken.

In Richard Hasen's new book, Election Law, he argues that in election law cases the Supreme Court should distinguish between two kinds of political equality rights: core and contested. In this picture, a first-time voter in 1942 is being shown how to use a ballot. THE JUDICIAL BOOKSHELF 295 however, finds process inadequate in believe in this principle, but many several ways. First, to say that courts should do not. Because the author does not intervene when there is a "political market as essential for leaves open the question of defini­ nrl'''''''''n",,'r,t and beeuuse no social tion and thus removes the very limits on consensliS about "PR" the is prop- dicial action that process is supposed deemed "contested." to supply. references to hide the own normative agenda which needs to be laid in the open; third, the does not address whal courls should do when choose to intervene, To and be-

and at of American democ­ least. be said for in the hands of the core of an individual not to be ex- accountable from the franchise becCluiie of race- with a key as­ a that took a century to be­ sumption. In election law the come a after its enshrinement in the Fif­ 9 Court l:ihould teenth Amendment after the Civil War. [ some of what Hasen deems the basic The first group has two of democratic (the quirements of democratic nmm,-,,,,,,pnt firsl source ofcore are not static but are Court must and constructed at their rools. At any are a "core" from "contested" ones, howevef_ consensus, core in turn means is task, difficullks that the Court must defend three but the distinction is critical for Hasen's pre­ scription forthe Court Where a involves a core political right, the Supreme Court "H6 The first prevents gov­ is on firm ground in a ernment "from with basic political rule" that makes it clear what policies treatment ofvotes and missible and what are not. That the au­ the Court should act m-PPtn,,,,t

"from to a poIitical ruIe" through unreasonable restrictions the abil­ that sketches only the outer limits of of people to into groups for able 92 This in turn leaves ample room ical aclion."87 for legislative bodies to expcriment with dif­ Contested rights in contrast are those ferent political structures and "[I]t which are for some but is up to or state and local which have not yet attained the status of near- with an initiative political into con­ tested areas. The Court generally should defer 296 JOURNAL OF SUPREME COURT HISTORY to such decisions, ifthe Court can be confident a number of instances between the that the legislature's intent is to foster nomination itselfand a Yote on confirmation in rather than engage ill "')3 the Senate have been ideological, rall- An unexpected bonus ofHasen's provoca­ and, by he shares uncertain as to the ultimate of fate of the nominee.'J7 Not surorisilH:dv. such as a way of illus­ controversy has much the value choices that Justices make. with the bulk materializing soon aiter one con­ for example, v. Board tentious nomination or another. Even the first is remembered as the first post­ edition of ], Abraham's classic Justices Baker in the Supreme Court to consider and Presidents98 was fortuitously published the connection between equality and shortly after the whirlwind years between 1968 wealth. In an by Justice William O. and 1972 that witnessed the failed nomina­ with Justices Black, John M. tion Justice Fortas to be Chief Justice, For­ and Potter Stewart in dissent, the Court struck tas's under the down poll tax as a condition for of Chief Justice Burger, the failed nomina­ state elections. Twenty-fourth tions of Clement F. Jr., ratified two years had and G. Harrold Carswell, and the easy ap­ taxes as a condition for Yot­ A. BIackmun and did at Lewis F. Jr., and the more labored one of William H. Rehnquist. as Associate Jus­ tices. Nominations during the next twenty-two unremarkable at the time. years produced a mixed pattern where con­ that the ca se side in 1965. burned. a pro-

then circulated to the per the insurmountable obstacleS that confronted curiam order. that there Robert Bork after Justice Powell retired. votes for affirmance. Black cir­ Conference ask­ treatment. Thomas's nomination to fill the sear held and Jus- Justice Marshall even more raucous than Bork's, but this time the nomina­

tion was (J') Compared to ' proceedings tor Ruth Bader terms of effects and Stephen G. to fill the vacancies cre­ litical the new ated therelirements ofJustiees Byron White appointment rivals the Court's and BIackmun. sailed thusiasm for eJection law cases. most from President Lyndon Johnson'5 Stevens, stormy nomination of Abe Fortas to succeed ways all have received considerable Justice Goldberg in 1965. the proceedings in treatment. 100 THE JUDICIAL BOOKSHELF 297

The process by which Justices are appointed to the Supreme Court is analyzed in a new book, Seeking Justices. Above, Chief Justice Fuller administers the oath of office to President McKinley in 1897.

Authored by political scientist Michael researched and engagingly written book is wcll Comiskey of Pennsylvania State University's positioned to become the standard reference Fayette Campus, Seeking Justices lOI revis­ during the next tcn years, a period that might its the judicial appointmcnt process. Yet, if well be marked by much turnover at the High the literature on the subjcct alrcady fills a Court. shelf, one might fairly ask what another vol­ Aside from some empirically descriptive ume could contribute. The rcadcr soon dis­ studies, Comiskey groups the bulk of mod­ covers that Comiskey's book is strategically ern literature on judicial appointments, in placed relative both to its predecessors and terms of whether the contemporary confir­ to the appointment process itself. Appearing mation process is good or bad, into two cat­ a full decade after Justice Blackmun's retire­ egories: the legalist school and the political ment, Seeking Justices benefits from previ­ school. The first objects to the "obsessive ous studies and offers brcadth, perspective, and scrutiny" given a nominee's "politicolegal fresh analysis of familiar and important events views by hostile senators, the news media, and trends. For such reasons, this thoroughly and the many interest groups .... Adherents 298 JOURNAL HISTORY of this school ... Icaders in workable

about coalitions across lines. 1(;4 The tiecond the increased number of senSitive that have found thcir way 011to the Court's docket. Each party's and its electoral have in turn become linked with the of those who sit on the John P. Frank observed the dawn ofthe modern Court'snow of"hot-button" institutional imbalallce in Justice u!h'<"·l'h" the have the ad- other individual in American the case ofnominees cal focus of the confirmation process is un­ school adherents are concerned about avoidable and. in Comiskey's view, proper. If of senators to nominees to reveal their views on constitutional ques­ tions. school adherents propose various reforms to make the Senate a

selection of nominees from either believes that advan­ tion of current realities of democratic over the it the pres­ itselL One start!'> with institutional and cultural ident who winnows the field and makes the changes that were in nomination·~-thcre is little reason to the 1965: the impact of the Seventeenth Amend­ Senate to abdicate a role that is has more or ment's decree for a popularly elected less consistently for the past 40 years. open confirmation which judicial As for trends, the author anticipates that a nominees attend and in which they answer greater burden will be on the presi­ questions: and, a television news industry that dent and the nominee to establish the latter's is hungry for and that has learned to "suitability for a scat on the Court. This de­ prosper on velopment is the most salutary-perhaps the To this mix must be added the convergence .. ""form of the normally well­ of two The first has been Court confirmation process the growth of defined in fo[." 107 with the pat­ reveals himselfas tern over much of the twentieth cen­ very much a small-d "democrat 'The pub­ tury. Each party, its delegations lic's of senators' ideological scrutiny included, now thrives by and being of nominees is evidence that Americans also responsive to its base. Gone is the day when understand both the undesirability of politi­ each major party had its own liberal, moder­ cal on the Court and the desirability ate, and conservative factions and when legis­ of democratic to nominees about lation nagged or failed dcnending on the skill of whom there are legitimate concerns about THE JUDICIAL BOOKSHELF 299 extremity. Perhaps in this instance those who Roosevelt and the Transformation of the are deeply interested by processes of Amer­ Supreme Court (Armonk , N.Y.: M. E. ican government should li sten to the usually Sharpe, 2004). Pp. 27 1. ISBN: 0-7656-1033-7, good sense of the American people."I08 Thus, paper. no president should be handed the prerogative of using the appointment of the elcctorally un­ accountable as a means of altering the course ENDNOTES of the nation. Yet a small -d democrat might IU.S. Constitution, Article II , section I, paragraph 8. then puzzle over the presidential options that 2/d ., Article VI , paragraph 3. remain in situations where the course of the 3/d. , Article VI , paragraph 2. nation has already beenjudicially altered. 4Alphcus Thomas Mason and Donald Grier Stephenson, Jr. , American Constitutional Law: rntroductory Essays As ifit were from a page in Congressional and Selected Cases ( 14th ed., 2005), 52. Government, the confirmation process has 522 U.S. (9 Wheaton) I (1824). been modified to reflect the ideologically en­ 6/d., I R7- 188. hanced role ofthe Supreme Court in the politi­ 7Id., 189. cal system. "Democratic institutions are never 8Woodrow Wil son, Congressional Government: A Study in American Politics (1885), I. done," reflected Wilson not long after writing 9W ith respect to the pri vileges and immun iti es clause in his book about Congress. "[T]hey are like li v­ the Fourteenth Amendment , however, see Saenz v. Roe, ing ti ssue- always a-making. It is a strenuous 526 U.S. 489 (1999). thing, this living the life of a free people."IU9 lOSee, for example, the exchange ofviews ofJusti ces An­ As the books appraised here have shown, that tonin Scalia and Stephen Breyer, as summarized in Charles observation by a future president encompasses Lane, "The COllrt Is Open for Di scussion," W!lshil/glo /l Post, January 14, 2005, A- I. the judiciary as well as other institutions of IIOka/logan. Metholt' (and other) Indian Trib e.l· v. UI/ite" American government. Slates, 279 U.S. 655, 689 (1929). 12 Youngstown Sheet & Tube Co. " Sa,, ~ ver, 343 U.S. 579, 610-611 (1952) (concurring op ini on). 13Wilson, Congressional Government 9-10. THE BOOKS SURVEYED IN THIS 14The Federalist, No. 70. ARTICLE ARE LISTED 15Wibon, Congressional Government 6. ALPHABETICALLY BY AUTHOR BELOW 16Id., 254. l7This quality is hardly confined to the judiciary. For a COMISKEY, MICIIAEL. Seeking Justices: current example, sec Nelson W. Polsby, How Congress The Judging of Supreme Court Nominees Evoh'cs: Social Bases of Institutional Change (2004). 18Aside from the jurisdictional change imposed (or c lar­ (Lawrence: University Press of Kansas, 2004). ified) by the Eleventh Amendment (179S), Congress re­ Pp. vii, 287. ISBN: 0-7006-\347-1, paper. duced from two to one the number of Justices needed to HASFN, RI CHARD L. The Supreme Court comprise a circuit court (Act ofMarch 2, 1793, I Stat. 333) and Election Law: Judging Equality from and temporarily eliminated circuit COtlJt duty for Supreme Bakel' v. Carr to Bush v. Gore (New York: Court Justices in 1801, only to reinstate circuit-riding in New York University Press, 2003). Pp. xi i, 225 . 1802 (Judiciary Act of 1801. 2 Stal. 89; Act of March 8, 1802,2 Stat. 132). Moreover, between 1789 and 11;69, ISBN: 0-8147-3659-9, cloth. Congress adjusted the Court's roster from six to five, frol11 MARC US. MAEVA, ED . The Documentary five to six, from six to seven, seven to nine, nine to ten, ten History of the Supreme Court of the United to seven, and seven to nine. D. Grier Steph enson, Jr. , "The States, 1789-1800. Volume Seven. Cases: Supreme Court in American Government, '. in Stephenson, 1796-1797. (New York: Columbia Uni ver­ An Essential Safeguard: Essays on the United States sity Press, 2003). Pp. xl iv, 983. ISBN: 0-231­ Supreme Court and Its Justices ( 1991),6. Even by the mid-1870s when Morrison R. Waite became ChiefJustice, clotb. 12646-8, the Court organizationally had much more in common with SHAW, ST lO l'llf, K., WILLI AM D. PEDERSON, the Marshall Court (1 801 - 1835) than with the Fulier Court A, D FRAN K L. WILLIAMS, EDS. Franklin D. ( 1888-1910) that followed the Waite Court. Donald Grier 300 JOURNAL COURT H

Stephcn.on, Jr., ~'Thc Waite Courl at the B~r of History," Both p~rlies, however, proceed 011 Ihe 81 Deliver University Law Review 449,461 (20()3), the fictitious tact tllat Hylton owned 125 charints, In truth he owned bill one, IVa, not bUI arranged itl such a it would The Constitution in the Supreme Court: The Fint Hundred Years 1739-1888

with suits volume seven continlles the sub­ yolume six that dealt will1 cases between }ilMarcus, voL

The Documentary History or the Supreme Court of the United States, 1789,,1800, Vol­ ume Seven, Cases: 1796--1797 (2003) Marclis 7), Martlls's scholarly include not on Iy tbe Court but the I110rC modern Court wei L See her Truman and the Steel Sdzure Case (1977), :"luliw; G\lcbcUr. Antecedents and Beginnings to 1801. Vol. of the O!i,r!' Wendell Holmes De\ise llistor), of Ihe SlIpl'eme CUllrt uf the (; n Ited Siaies ( 1971 ), COlin

Perry, cd,; .. The Doeu men­ hir), Hjstor~' ofthe Supreme Court oHhe United States, 1789-1800, 1(1985), 26Gocbcl, Antecedents and Beginnings 690, 27MJfcus. vol. 7. vii-xix, 4lJrcdcll's notes arc reprinted in Marcll', vol. 46S 490. 28ld.. xxxiii xliv, ,I1This line probably retcrs to statements made by Justices 29{d" of the Supreme Court in circuit court ,11' in otller contnl, }OWilJiam R, Casto. TheSupremeCourt in the Early Re­ supporting the power ofjudieial review, public: The Chief Justiceships of John Jay and Oli\er "'Marcus, 468, Ellsworth (1995),110. 44"6 Article" surely was a reference to the supremacy VI of the Constitution is surely in the beholder. Jus­ 473-474. tice lames Irede1l's bi0grapiJcr chapter entitled "Not a Time of Decisions," Willis (1895), On the firs! in ells":: P. Whichard, Jllstice James Iredell (2000), J 19, 429 (1895)]. the majority invalldated the 1894 (3 Dallas) 199 (J 796). tax as applied 10 income [,5, (3 Dall:ls) 171 (1796), a nonapporlioned direct tax, "Marcus, voL 2. Materials all 011\,1101111 [2 U.s. (2 Dal­ However, lustice Howell las) 419 (1793 l] are contained in volume five of the Doc­ illness, the bench split 4,-4 umentary lIistory: on Dallas) constifU!!Onally be applied prop­ (1798)] should appear in the concluding volume eight (sllch as stocks and bonds). hear­ U.S, (I (ranch) 137 (1803). t ourt rulcd 5 to 37 Act of June 5, 1794, I Stat The tax was imposed the tax, with luch,oll binbdf among uniformly acros, the states but varied according to the the dis:,cnters, This meant that of the four justices on particular conveyance, A basic twO,\\'hI;ei contraption was the first hearing had switched sides, As Charles Lvans at a rale of one dollar per year, whi Ie a fancy coach later recorded shortly before becoming Chic:f Jus­ was assessed ten dollars annually. Marcus, vol. 7,358, Ac­ "At the time, tbe most bitter attacks weI'''; made upon cording to Justice Iredell's biographer, the tax and penalty [George] Shiras, wbo popularly supposed to that Hylton owed totaled only dollars, far less than have been the one who changed his vote, He bore the jurisdictional threshold from circuit court. critlclsm wlth a calm dignity, is good reason to THEJU 301

the charge without foundation example, see Wesl Coas! Holel v, Parrish, 300 not the member of the Court whose (1937), decided March 29, 1937, and National La­ altered "Hughes, The Supreme Court Relations Board 1', Jones & Laughlin Steel CO/P" 30 I of the Vnited States (1928), 54, Euward S, Cor'Nin, the US, I (1937), decided April 12, 1937, The latter ruling late constitutional scholar at Princeton, agreed, be­ made clear lhal the Court's newfound tolerance for fed­ !ieving furthermore tbat Justice Horace Gray was the one eral power was not lirmted to large-scale industries such who had switched positions, Corwin's explanation, writ­ as steel. Chief Justice Hughes's opinion of the Court that ten some ll,rty-three years after Po/lock, bears repeating, decided Jones & Laughlin also upheld application of the "Gray for years, except for Bradley, the strongest na­ National Labor Relations Act to smaller concern" includ­ tionalist on the bench, ,Furthermore, Gray was an old­ ing a trailer company and a men', clothing manufacturer product ofthe Civil War, and notcspeciaHy v, Fruehauf Trailer Co, 301 US, 49 (1937), alert to the property question, , , , Also, Uray was a very NLRB c Friedman-Harry Marks Co" 301 learned man and great precedent judge, whereas the Pol­ 58 (i 937)]. lock played 'ducks and drakes' with the precedents. and Mmphy SlliCl,,',rhru; Cardozo, Brandeis, and Butler, that

Empire of the Air: The Men Who Made made by coun­ Radio (1991),160-185, in Justice Brown', dis'I.'nt in Pollock. 64Kansas ilselcdoral votes for 690; and in Ju,tlcc Edward Dougla,s White's Republican candidate Wendell Wilkie in the presidential U.s,at race of 1940, 49 158 U,S, at 626, 65Shaw, 66, 50Hughcs, The Supreme Court of the United States 66fd., 67, (l928},50. G7Se;:: note 60, 51 60 US. (19 Howard}393 (856), «"Shaw, 70-71, 52Knox and 79 US, (12 Wallace) 69id" 71, According to Duram, the lola neWS!)l!!)C!' had a 457 (1870), circulation of 2,94 Lid" 53Hughes, The Supreme Court of the United States 5!, US, 144 (1938), 54Alpheus The Supreme Court from !lId" 152 (emphasis added), I "S!cnlhen K, Shaw, William D, Pederson, and Frank 1 eds" Franklin D. Roosevelt and the Transfor­ mation of the Court (2004) as

and the Court: Reinter­ CUllrl-packirlg Episode of " 103 Political the Comt as all overseer ofeconomic regulation, compare Quarll!l'(1' 267, (1988), those rulings with Ulliled v. Darby, 312 US, 100 57William Lcu<:htcnburg, The Supreme Court Re­ (1941), and JVickard \' Filbwn, 317 US. [11 (1942) born: The Constitutionlll Revolution in the Age of Roo­ 74 304 US. at 152, fn. 4, sevelt (1995),85, Whether biblically referenced as a bench 75 369 US. 186 (1962), of Mcthuselahs (according to Metbusclah 76Richard L. Ha,en, The Supreme Court and Election Iived 969 years) or re furred to Old Men" (the Law (2003) (her0after cited as phrase bcc:amc the litk of a 17]d" I. authored by Drew Pearson and Rubert S, Allen in 1937), 78See figures I, I and 1.2 in id, 3. 79fd,,3,

8()Bush l: (jore, 53 I US. 98 (2000) SlJohn Han Ely, Democracy and Distrust (1980), I 17, Ely'sbook,

5. 831d,6-7, 302 JOURNAL OF SUPREME COURT HI

Bronnc:r, Baltle for Justice: How the Bork Nomina­ tion Shook America (1990); Stephen L. Carter, The Confirmation Mess (1994): John P frank, Clemen! Ha)'llsworth, the SCllate, and the Supreme Court (1991); Picking Federal Judges

Nominees {I 9(5); Robert A Question of Judg­ ment: The Fortas Case and thl: Stmggle for the Supremc Court ( Sllwr~tein_ Judicious Choices: The New J'olitics of Supreme Court Confir­ Donald Stephenson, Jr., The Right to Vote: Rights mations (1994); and David AlistairYalo[ Pursuit ofJus­ and Liberties Under the Law (2004). 85-iI7, 215-220. tices: Presidential Politics and the Selection ofSupreme 92Hasen, Court I"\ominees (1999). 9}1d., 12; see also id.• 101-137. 101 Michael Seeking Justices (2004) (hen:

93Hemy Abraham, Justices and Presidents: A Politi­ the contemporary Court and Comts ofan cal History of Appointments to the Supreme Court not merely in the /lumber ofpolitkally ,,,nshlVC ed., Second and third editions of Abraham's book but in the Vat iety of politically sensitive that now followed in 1985 All thre\.' Court's time >every tcrm. True, historically the published by Oxford Lniversity Press. More recciltly the COllrt has been 110 stranger to l'ontmvcrsy. For book hCCl111pdlllcd and by Rowman & Little- exampic, the Court thrust Itself into partisan politics in field Justices, Presidents, and Senators: A History 1857 by engaging Congel's,'s power over slavery in the of the U.S. Supreme Court Appointments fr-om Wash­ territories, and it frustrated a president and Congress in ington to Clinton (1999). 1935-1936 by denying them a choice of me all' in coping 99The Senate's vote to confirm Thomas on October 15, with the Great Depression. But in both situations, the ac­ 1991, was 52-48, one ofthe closest on record for a success­ tual number ofis'llcs involved very small. By COnlmst ful Supreme Cmlr! nominee. Only the approval of Stanley tOday, the list of sensitive issues populating the docket Matthews by vote of24-23 in 1881, also under highly un­ much longer. usunl circumstances, had generated n higher percentage of I06Comiskey, J93. Donald Grier SLCph,'nson, Jr., The Waite 107Id., 194. Court: Justices, Rulings, and Legacy (2003),30-3 1. losid. JOOAsidc from Abraham's Justices, Presidents, and I09Woodrow Wilson, An Old Master and Other Political Senators, Rnd Supremely Political, see Ethan Essays ( 1893), 116. 303

Contributors

Timothy B. Dyk is ajudgeon the United States former university Dr. Cloyd Heck Court of for the Federal Circuit. Marvin.

Morad Fakhimi is a law student at Texas Bartholomew Sparrow is an associate profes­ Wesleyan University School of Law. sor of government at the University of Texas, Austin. His essay in this issue of the Journal will also appear in Public Debate Over Con­ at troversial Supl'eme Court Decisions November 2005).

Andrew J. Novak is a former of D. Grier Stephenson, Jr. is the Charles A. the University Histor­ Dana Professor of Government at Franklin and the author of The Man and Marshall He regularly contributes Flannel Suit, a biography of "The Judicial Bookshelf" to the Journal. 304

Photo Credits

All images arc Il'om the Library of Congress except as Page 213, Courtesy of George Washington University listed below : Archives. Page 217. Courtesy of George Washington Universiiy Archives. Pagc 200, Philadelphia Record, May 28, 1901, p. 3. Page 222, Courtesy of George Washington Universit y Page 201, Denver Post, May 28.1901, p. I. Archi ves. Page 202, Philadelphia Record, December 3, 1901, Pagc 279, Office of the Curator, Supreme Court of the p. 3. United States.

Cover: President McKinley is shown here raising the flag over the Philippines in J900 while his political opponent, William Jennings Bryan, an "anti-imperialist," tries to chop it down. The annexation of new territories affected not only the presidential election but the Supreme Court, which was asked to rule on whether "the Constitution follows the flag" in the Insular Cases. The Case for Gay Rights From Bowers to Lawrence David A.J. Richards "Richards was the first major in American constitutional law to argue that consensual laws are unconstitutional, a quarter century before the Court in Lawrence decision, In this personal narrative, he presses the constitutional once more and argues that anti-gay s£atutes and rules are inconsistent with constitutional of .. An lITllClnrt,m and erudite book."-Williain N. Same-Sex From Sexual 256 pages, Cloth $29.95 Money and Free Speech Campaign In~lnc:e Reform the Courts Melvin I. concise, and highly readable finance reform and the leading matter. It is timely, useful for understanding the and debate over the "-David M. O'Brien, author of Storm Center: The Court in American Politics pages, Cloth $29.95

Lindmark Liw Ca._ and American Socieg Peter Charles Hoffer and N.I::.H. Hull. series editors The Slaughterhouse Cases Regulation, Fourteenth Amendment Abridged Edition Ronald M. Labbe and Jonathan Lurie style, a panorama of a key legal From their vivid description of the public health hazards nineteenth-century New Orleans to their superh the Court led ChiefJustice Chase, this is "-Journal of American Paper $15.95

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