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YEARBOOK 1983 SUPREME COURT HISTORICAL SOCIETY WILLIAM HOWARD TAFf TENTH CHIEF JUSTICE, \92\-\930 YEARBOOK 1983 SUPREME COURT HISTORICAL SOCIETY OFFICERS Chief Justice Warren E. Burger, Honorary Chairman Fred Vinson, Chairman Linwood Holton, President EDITOR William F. Swindler ASSOCIATE EDITOR Jeffrey B. Morris ASSISTANT EDITORS David T. Pride Kathleen Shurtleff CONTRIBUTORS Loren P. Beth is a professor of political science at the University of Georgia and a member of the Society. James M. Buchanan is the associate editor for the Documentary History of the Su­ preme Court of the United States, /789-/800. George A. Christensen, a retired U.S. naval officer, and a student at the University of Maryland School of Law, is an amateur historian, and a member of the Society. Josiah M. Daniel, III is an attorney with the law firm of Underwood, Wilson , Berry, Stein & Johnson in Amarillo, Texas, a student of American legal history, and a member of the Society. John D. Gordan, III is a partner in the law firm of Lord, Day & Lord in New York City and a member of the Society. Rex Lee is the Solicitor General of the United States, and a former dean of Brigham Young University School of Law. Jeffrey Morris is the associate editor of the Yearbook and an assistant professor of political science at the University of Pennsylvania. James R. Perry is an editor of the DocumentGlY HistOlY of the Supreme Court of the United Slales, /789-/800. Merlo J. Pusey, a former editorial writer for the Washington Post, is the author of the Pulitzer Prize winning biography of Charles Evans Hughes. William F Swindler is the editor of the Yearbook and a professor emeritus at the Marshall-Wythe School of Law at the College of William and Mary. Melvin I. Urofsky is a professor of history at Virginia Commonwealth University. ACKNOWLEDGEMENT The Officers and Trustees of the Supreme Court Historical Society would like to thank the Charles Evans Hughes Memorial Foundation for its generous support of the publication of thi s Yearbook. YEARBOOK 1983 Supreme Court Historical Society In Memoriam: Abe Fortas 7 Rex Lee Admission to the Supreme Court Bar, 1790-1800: A Case Study of Institutional Change 10 James R. Perry and James M. Buchanan Here Lies the Supreme Court: Gravesites of the Justices 17 George A. Christensen The Trial of the Officers and Crew of the Schooner "Savannah" 31 John D. Gordan, III Roscoe Conkling and the Fourteenth Amendment 46 William F. Swindler Myth and Reality: The Supreme Court and Protective Legislation in the Progressive Era 53 Melvin I. Urofsky Justice Harlan and the Chief Justiceship, 1910 73 Loren P. Beth What Heaven Must Be Like: William Howard Taft as Chief Justice, 1921·30 80 Jeffrey B. Morris Justice Roberts' 1937 Turnaround 102 MerloJ. Pusey De Minimis, or, Judicial Potpourri "Chief Justice of the United States:" History and Historiography of the Title 109 Josiah M. Daniel, III Toward 1987: A "Pre-Constitutional" Law Case 113 William F. Swindler Copyright © 1983, by the Supreme Court Historical Society, III Second Street, N.E., Washington, D.C. 20002. The Supreme Court Historical Society BOARD OF TRUSTEES Chief Justice Warren E. Burger Honorary Chairman Fred M. Vinson, Jr. Linwood Holton Chairman President Vice Presidents Frank Gilbert Kenneth Rush David Lloyd Kreeger Melvin M. Payne Alice L. O' Donnell Virginia Warren Daly, Secretary Peter A. Knowles, Treasurer Trustees Ralph E. Becker Francis R. Kirkham Griffin B. Bell Sol M. Linowitz Mrs. Hugo L. Black Wade H. McCree, Jr. Vincent C. Burke, Jr. William Barnabas McHenry Gwendolyn D. Cafritz Richard A. Moore William T. Coleman, Jr. David A. Morse Charles T. Duncan Dwight D. Opperman Patricia Collins Dwinnell E. Barrett Prettyman, Jr. William T. Gossett Merlo J. Pusey Erwin N. Griswold William P. Rogers Lita Annenberg Hazen Fred Schwengel J. Roderick Heller, III Bernard G. Segal Jospeh H. Hennage Whitney North Seymour Stanley N. Katz William F. Swindler Bruce E. Kiernat Obert C. Tanner Earl W. Kintner J. Albert Woll Gary J. Aichele Executive Director In Memoriam ABE FORTAS 1910·1982 7 In Memoriam: Abe Fortas Rex Lee* Abe Fortas, Associate Justice of the Supreme academic record , he won a scholarship to the Court of the United States from 1965 to 1969 , Yale Law School , which he entered in 1930 at the died at his home in Washington, D. C. on AprilS, age of 20. 1982. He was 71 years old, but even for a man Propitious circumstances and the relentless whose career had been so rich. so varied and so application of his remarkable ability made Yale fruitful , his death cannot be said to have come in the turning point of Fortas' life. He led his class the fullness of time. Only a few days before, he academically, was Editor-in-Chief of the Law had argued before the Supreme Court and neither Journal, and authored a brilliant student note at his appetite for work nor his powers showed any the direction of William O. Douglas, then a signs of diminishing. young Sterling Professor of Law, who would To recall the details of his life is to exhibit, as later call Fortas "my prize student" and who the historian Burckhardt said, only the " under­ would become an intimate friend for life. side of the tapestry": the knots and stitches, not Fortas was appointed assistant professor of the whole work. Abe Fortas was animated by a law upon his graduation in 1933 , but for the next warmth, a compassion, a profound gravity that four years his world had two centers, New Haven could be felt, that cannot be captured in words. and Washington. During summers and semesters but that made him who he was and whom we when he was not teaching. he worked at the Ag­ remember. ricultural Adjustment Administration at the be­ Abe Fortas was born in Memphis, Tennessee hest of two other Yale faculty members who had on June 19, 1910 . His Orthodox Jewish parents been drawn by the New Deal , Thurman Arnold had emigrated from England. His father was a and Wesley Sturges. In 1934, Fortas joined cabinetmaker who was also a sometime shop­ Douglas at the new Securities and Exchange keeper and jeweler. Abe was the youngest of five Commission as a consultant. He became an im­ children, and his family's modest circumstances portant collaborator with Douglas in the prepara­ dictated that any achievement he enjoyed would tion of a study of protective committees that led be self-made. He worked his way through high to major legislative revisions in reorganization school by playing the violin in a small dance proceedings under the Bankruptcy Act. Three band. The violin began as a source of pleasure. years after joining the Commission, Fortas left became a means of self-support along with part­ the Yale faculty. In the meantime, he had married time work in a shoe store, and remained a passion Carolyn Agger. She, too, became a brilliant stu­ throughout his life. His academic record led to a dent at the Yale Law School and after her gradua­ scholarship at Southwestern College, a Presby­ tion in 1933, began an outstanding career as a tax terian institution in Memphis. There he was pres­ lawyer that has continued to the present day. ident of the drama and debating clubs and leader In 1939, at the age of 29. Fortas became Gen­ of the school orchestra. With a near-perfect eral Counsel to the Bituminous Coal Division of the Department of the Interior. Two years later, he became Director of the Division of Power in the Department. In that capacity, he met a young * Reprinted from the Solicit or General 's remarks congressman named Lyndon B. Johnson, who before the Supreme Court of the United States during was interested in a proposed power project in his the Special Session in memory of Justice Fortas on December 13 , 1982. home state of Texas. The introduction led to a 8 YEARBOOK 1983 life-long friendship which included Fortas' rep­ was a landmark in the modern attempt to bring resentation of Johnson in the contested Texas into closer proximity legal rules and scientific Senatorial election of 1948. knowledge concerning insanity. Less than a dec­ Talented young men. of whom Fortas was one ade later. again by appointment of the court. he of the best. were able to rise quickly in the New convinced the Supreme Court that Clarence Earl Deal. In 1942 at the age of 32. Fortas became Gideon was entitled under the Constitution to a Under Secretary of the Interior. His legal abili­ lawyer to defend him in state court for a petty ties had been firmly established. ln the new post. offense. Both cases were constitutional water­ he demonstrated the judgment and force required sheds. to become a successful second in command to Abe Fortas was an advocate not only of the Secretary Harold Ickes. the self-styled cur­ powerful and the penniless. but also of the arts . If mudgeon of the Roosevelt administration. Fortas his professional passion was craftsmanship. his won Ickes' trust so quickly and to such a degree private passion was music and art. The two that he frequently substituted for the secretary at merged symbolically in the form of his desk at Cabinet meetings. the firm which was made from a Victorian grand With the declaration of war after Pearl Harbor. piano. He was an effective supporter of the Na­ the business of the Interior Department acquired tional Endowments for the Arts and for the new gravity. The Department was charged with Humanities. He arranged for Pablo Casals to administering the removal of Japanese Ameri­ play at the White House.

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