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CCIIla Arlirlef,rsl. O"iinc AbSlmelS; Worldwu/c Po/ilual Snetll{ Abslracls. SUPREME OURT I TORICAL SOCIETY

HONORARY CHAIRMAN John G, Jr, HONORARY TRUSTEE (HAIRMAN EMERITUS (HAIRMAN Silverman PRESIDENT Frank C. VICE PRESIDENTS Vincent C. III Dorothy Goldman E. Barrett Jr.

SECRETARY TREASURER Cohen

TRUSTEES

R, Adams Leon J. Bruce Alverson Allen Hill M. Reasoner Perer G, Bernard Manha Barnerr Herman Bdz A. Black C. Rose L. Black. Jr. Teresa Wynn fU"ClJ,OnlUU'1l Brennan Allen Lacovar;) Richard A, Schneider Brinkmann Parricia Dwinncll Edmund N. II

R, Moderow Esrrada Michael Mane Davrd Frederick Lucas Morel Charles GalVin Charles Kennerh Geller W Morris. III Frank B. Gilbert Nannes L. Goldman David T. Pride D. Gordan, III Roberr J. Jr. Ted Olsen Frank Gundlach David Onorato Asmtal1/ Dim/or Robert Gwinn Carrer G. JOURNAL OF UPREM RT HIS o

2007 vol. 32 no. 2

PUBLICATIONS (OMMITTEE B. O'Hara, CiJaim1fll1 Donald B. Ayer Louis R. Cohen Lucas Morel Luther T Munford David O'Brien Carter G. Phillips E. Barrett Prettyman, Jr. Teresa Michael Russ D. Grier .11.

BOARD OF EDITORS Melvin L ChairmaJ1 Herman Belz David J. Bodenhamer

David O'Bnen Michael Parrish LA. Powe, Jr. Sandra VanBurkleo

MAN AGIN G EDIT 0 R Clare Cushman

Bbckwrll Publishing, Boston. M""och,,,,·/ o,rord. UK GENERAL STATEMENT

The Society. a private non-profiL orgamzation, is dedicated to the collenton and preservation of the hIstory of the Supreme Court of the Umted States. Incorporated m the District of Columbia in 1974, it was founded by Chief Justice \Varren E. Burger, who served as ItS first honorary chatrman. The SOCiety accomplishes its miSSion by condllCtlng educational programs, supporrmg his[O[!cal research, publishing books, journals, and ciccrronic matcnals, and by collening amiqucs and arTifacts related to the Court's his[Ory. These acrivities and others increase the public's awareness of the Court's comribmions

[0 our nation's rich constitlltional heutage. The Society maimallls an ongomg educational outreach program deSIgned to expand Americans' lInderstandmg of the Supreme Court, the COr1StitU[ion and the judicial branch. The Society cosponsors Streer Law Inc.'s summer institU[e, which trains secondary school teachers to educate their students abom the Court and the Constitution. It also sponsors an annual lecture series at the Supreme Court as well as occasIonal public lectures around the country. The Sociery maintains lts own educational website and cosponsors Landmarkcascs.org, a website that provides cml'lculum support to teachers about Ilnportant Supreme Court cases. In terms of publtcations, rhe Soctety dismbmes a Q'tarleriy newslerter wits nwmbers containing shorr hlstoncal pieces on the Coun and articles describing rhe Society's programs and activities. Ir also publishes the Journal of Supreme Court History, a scholarly collection of articles and book reviews, which appears in March, July and November. The Socicry awards cash prizes to students and established scholars to promore scholarship. The Soctery lIliriated the Documentary History of the Supreme Court of the United States,

'789-1800 m '977 with ,1 matching grant from the National Historical Publications and Records Commission

(NHPRC). The project seeks [0 reconsrl'uct an accurate record of rhe development of the federal judiciary In the formative decade between 1789 and 1800 because records from this pct'lod are often fragmentary, incomplete, or nllSslllg. The Supreme COlI[t became a cosponsor 1Il 1979; since then the proJtcr has completed seven out of the eight vol.umes. An oral hisw[y program in which formcr Solicitors General, former Arromeys General, and retired Justices are interviewed is another research project sponsored by rhe Sociery. The Society maintains ;[ publlcarions program thar has developed several generallllteresr books: The Supreme Court Justices: Illustrated Biographies 1789-1995 (1995), shorr dlusrratcd biographies of the 108 Supreme Court Decisions and Women's Rights: Milestones to Equality (2000), a guide to gender law cases; \Ve the Students: Supreme Court Cases for and About High School Students (2000), a high schoolrextbook writtcn by Jamll1 B. R~skll1; and Black White and Brown: The Landmark School Desegregation Case in Retrospect (2004), a collection of essays ro mark rhe 50th anl1lversary of the Brown case. The Society is also conducting an aerive acquisitions program, which has substantially contributed to the compielion of the Court's permanenr coiIec[!on of busts and portral[s. as well as penod furnishings, privarc papers, and other arrifacrs and memorabilia relating ro rhe COllrt's history. These materials are incorporated mto exhibitions prepared by the Court Curator's Office for the benefit of the COlin's one million annual visitors. The SOCiery has approximately 5.700 members whose financial supporr and volunreer partiCipation In the Society's standing and ad hoc committees enables the organization to function. These committees report (0 an elected Boatd of Trustees and an Executive Committee, the latter of which is principally responsible For policy dccisions and for supervising the Sociery's permanent staff. Requesrs for addinonailnformation should be dllycted to the Society's headquarters at 224 East Cap[(01 Streer, N.E., Washington, D.c. 20003, relephone 543-0400, or (0 the Society's websire at ww\V,supremccourthis(Ory.org.

nrC Socil'f)' has bccn determined eligible (Q fCC('lV(' ClX dcduC[lbk glfrS unckr s('crion S01 of rhe Intcrr.al Revenue Code. JOURNAl OF s REME Co THIS OR

200 vol. n

INTRODUCTION Melvin I v

ARTiClES: Dissents and Dissenters: Their Rale in Supreme (ourt History

In Defense of "Public Reason": COUf[ William Johnson Sandra F VanBllrklco Il5

The Dred Scott Dissents: Curtis, Lincoln, and the Publ ic Mind

Lucas E Morel J33

The Dissents Marshall Harlan I

Lil1da 15 2

The Four Good In Pollock

Calvin H. 162

Chief Justice Taft and Dissents: Down with the Brandeis BricfS! JOllathan Lurie 178

The JudiCIal D. Grier .l/Wllt'llIon J9°

(ONTRIBUTORS 209

ILLUSTRATIONS 2.10

. by at House Introduction Melvin I. Urofsky

Dissent occupies a very important role always on target. But he set an example, and in the history of the Supreme Court. While subsequent Justices have accepted it as a matter the majority holding is the law of the land­ of course: that if they do not agree with all­ even ifby a bare 5-4 vote-we know that in a or even part-of the majority ruling, they are significant number of cases, it is the rule es­ free, not only to vote against it, but to explain poused by the dissenters that will ultimately why. be accepted as the proper constitutional inter­ Some members of the Court did not value pretation. To take but one example, while the dissent, and none less so than Chief Jus­ majority holding in Plessy v. Ferguson (1896) tice William Howard Taft, who during his gave judicial imprimatur to racial segregation, decade on the Bench fought valiantly to "mass in the final analysis the eloquent dissent by the Court." As Jonathan Lurie points out, Taft Justice John Marshall Harlan I-that the "con­ believed that the rulings of the Court would stitution is color-blind"-carried the day. Sim­ have greater impact and influence if they had ilarly, the dissents by Justices Oliver Wendell the backing of the entire Bench. While he of­ Holmes, Jr. , and Louis D. Brandeis in Olm­ ten succeeded, the frequent dissents ofHolmes stead v. United States (1928) led to the Court's and Brandeis, joined by Harlan Fiske Stone, adoption of the rule that wire-tapping did in­ vexed him enormously. No doubt his frustra­ deed constitute a search, and that under the tion would have been even greater if he had Fourth Amendment it required a prior warrant. lived long enough to see practically all of the In this series, we are interested as much dissenters' opinions adopted by later Courts. in the dissenters as in the dissents. For exam­ Two of the most famous nineteenth­ ple, Sandra VanBurkleo looks at the career of century cases, Dred Scott v. Sanford (1857) and William Johnson, often characterized as the the Income Tax Cases (1894 and 1895), are no­ first dissenter. Johnson, when viewed in the table for the results they spawned. Dred Scott is context of the Marshall Court, often appears often given credit for triggering the Civil War, to be a loose cannon, and his dissents are not while the public outcry over the Tax Cases led

v vi JOURNAL OF SUPREME COURT HISTORY to the adoption ofthe Sixteenth Amendment in Amendment's Equal Protection Clause, we 1913. Lucas Morel and Calvin Johnson note have come to have a much greater respect for that the Court was far from united in these him, not only as a man, but as a judge, and a cases, and that the dissents not only helped good part of this new look at Harlan has been to fuel public outrage but also set in motion the work of Linda Przybyzewski. events to overturn the findings. After studying these articles, our readers Had this series been presented a genera­ will understand why dissent has been so impor­ tion ago, it is unlikely that we would have been tant, and why the dissenters··-no matter how all that interested in the views ofJohn Marshall badly outnumbered they may be in a particular Harlan 1. But ever since Brown v. Board of case-all share, to a greater or lesser extent, Education (1954), in which the Court adopted Mr. Justice Brandeis's explanation of why he his views on the meaning of the Fourteenth dissented: "My faith in time is great." In Defense of "Public Reason": Supreme Court Justice William Johnson

SANDRA F. VANBURKl,EO*

For those of us who gravitate toward rebels and upstarts, Supreme Court Justice William Johnson has uncommon appeal, if only because he was the first member of the federal Bench to kick up his heels in a sustained, effective, and deliberate way. In 1954, Johnson's only biographer, Donald Morgan, proclaimed him "the first dissenter,"i a force for democratization in the style of Thomas Jefferson and Andrew Jackson, the man who persuaded Chief Justice John Marshall to compromise on the question of unitary opinions and institutionalize (if not applaud) publication of concurring or dissenting departures from the majority's official reasoning. However we decide to characterize him, it only when and why judicial dissent began, but is fair to say that, of all the notoriously head­ what we have gained and lost over two cen­ strong Associate Justices, Johnson is the least turies, and what, if anything, we might want well known. We might justify another look on to reclaim fTOm the federal judiciary's rapidly that ground alone. But there are other, better receding past. reasons for reconsideration. Johnson's career We begin with basic questions: Who was serves as a window into the earliest decades of William Johnson') In what sense was he a federal practice, when institutions were half­ dissenter') Was he the instrumentalist vari­ formed and when renegades could reasonably ety associated, rightly or wrongly, with the hope to shape future developments. Because likes of William Douglas and John Marshall his professional life spanned two formative Harlan I? An ideologue interested mainly in eras in the nation's past----the age ofrevolution advancing the fortunes of political parties and the early national period, coincident with and leaders? Was he merely a "crank," as the rise of a recognizably modern Supreme nineteenth-century Americans sometimes put Court-we are given an opportunity to step it? How would Johnson himself want us to back from our own moment and consider, not characterize his contributions? And why have 116 JOURNAL OF SUPREME COURT HISTORY

I chosen a title with an anachronistic phrase By the mid-l from legal philoso­ talent in the young start the younger Johnson's career. After leav­ biography, a number ing Princeton, he entered an III about the "first dissenter" remain Charleston with and Feder­ unanswered. When scholars consider Johnson alist Charles Cotesworth at aiL he appears as a brilliant Johnson had allied himself with Jeffersonian of Thomas Jefferson or Jackson, an its i II-humored thorn in Marshall's side. and a radical strains, the Charleston Re­ man driven vanity or vendetta. To publican Society. At the same time. he sided some extent, these are mischaracterizations. It with Federalists on financial and is more accurate, and perhaps more interest­ ment questions5 In 1793, he to describe Johnson as an unreconstructed Carolina bar. A scant year more or less Anti-Federalist (or oppositionist), at the same moment that John Jay decided to rather than as a political or con­ abandon the Supreme Court in frustration and stitutional modernist. But critics also are right disgust, Johnson married Sarah Bennett, the to sometimes for the wrong reasons­ sister of Thomas Bennett, a future governor that Johnson's view of courts and constitutions of South Carolina. He also assumed an elec­ differed from Marshall's. His con­ tive seat in the state Ultimately, the Court history thus were couple parented eight children, six of whom both anachronistic and innovative. survived; they also adopted two from In many William Johnson's his­ Santo Domingo. By age 30, Johnson boasted torical moment is now a several terms as a state as its infused with oolitical and constitutional mean- a budding law

two after Christmas in I I, the favorite son of Sarah nomination at and William Johnson. The senior an astonishingly young age to the Court of blacksmith Common Pleas, or Constitutional Court, where and to amass an im­ he supported governmental intervention in the pressive fortune before his late-life death. His project of economic growth and mar­ son attended the of New ket integration 6 Princeton, then under the Why such attention to circumstance? As ofGeorge Witherspoon, where he studied gen­ Oliver Wendell Holmes once said in a long, tlemanly arts and sciences in for contemplative essay about John Marshall, "It law study. He joined soci­ is most idle to take a man apart from the cir­ eties to hone his writing skills and excelled in cumstances which, in fact, were his .... A great Latin translation. As colonial resistance strate­ man represents ... a strategic point in the cam- gies yielded to calls for and. fi­ of history, and part of his greatness con­ nally, to war, Johnson's father sists in his there.,,7 It matters greatly lines in South Carolina-a decision that led to that William Johnson came to public service wartime detention in Florida and the through the Age of the Democratic exile. These were in the elder Johnson's Revolution. The swirl of revolutionary talk, a words, of "dark and ame­ climate ofwatchfulness, heated discussions of liorated by the justice of the American cause in pubs and open-air and the generosity of friends 4 formed an essential part of his WILLIAM JOHNSON 117

could one predict what might develop through experience-the source of a neighborhood's customary constitution. Who had foreseen, af­ ter all, that British North America might one day stand partly on its own experiences of constitutionalism and declare independence? As John Dickinson explained in 1787, "It was not Reason that discovered the singular & ad­ mirable mechanism of the English Constitu­ tion. It was not Reason that discovered or ever could have discovered the odd & [i.e., the mys­ terious form or symbol] in the eye ofthose who are governed by reason .... Accidents proba­ bly produced these discoveries, and experience has given a sanction to them." Serendipity and social re-enactment, in other words, formed an essential part of what David Konig calls an William Johnson, the Court's first great di ssenter, is "historical process of constitutionaJism."9 overdue for a modern biography. To make matters more complex, Ameri­ cans continued to be dependent on Europeans for critical manufactures well into the new cen­ political and legal education. As late as 180 I, tury, and to suffer mightily from unrelenting when Marshall assumed the post of Chief Jus­ capital and labor scarcity. Hence, the Feder­ tice, very little of consequence was truly set­ alist (and, by 1800-01, the Republican) lead­ tled; only a handful of controversies about the ership's keen interest in free trade, domestic workings of government in a federated repub­ manufactures, the cost oflabor, and public sup­ lic had been resolved. The problem of the port for internal improvements, without which era, moreover, was tyranny in its many forms: commerce would f1ounder. In 1803, Jefferson's where to look for it, whether experimental po­ dazzling burst ofexecutive energy doubled the litical and constitutional structures might pre­ nation's physical size, but at the cost of yet vent or control it, whether the new empire more political and cultural instability. would inevitably fall prey to one kind or an­ Finally, common-law constitutional prac­ other as the decades advanced.8 tice was a muddle ofinherited and "local" prac­ Ofparticular relevance is the way in which tices. In Britain, as in many of its colonies, Johnson and other early national Americans members ofthe bar moved from court to court, associated civic participation with constitu­ not identified fundamentally with particular tionalism. English habits ofmind had not evap­ institutions. The English constitution lacked orated with independence, and part of that firm boundaries; that is to say, it was partly legacy was a tendency to conceive of human written, partly customary, a mixture ofancient action as if embedded in a fabric of time, and modern elements (including certain acts of accumulating gradually into "history," which Parliament, so that the constitution could and concept lay at the heart of "constitutional­ did mutate). Law courts' dependence on the ism." Nothing was more frightening than the King-in-Parliament also provided legitimacy prospect of establishing a polity without cul­ and authority; departmental government, the tural memory; the nation's Framers did not notion that powers ought to be separated, rep­ have in mind a Constitution of decontextual­ resented a theoretical alternative to the English ized, inward-turning words and phrases. Nor way well into the J780s. Patriots of '76 shed 118 JOURNAL OF SUPREME COURT HISTORY their English skins gradually: architectures of Iives), and how to be self-governing but neither mind, a lifetime ofloyalty to the Crown, vener­ anarchic nor venaL particularly within legisla­ ation of the ancient constitution, a deep-seated tive bodies. need for visible signs of public power-all For Johnson, as for other early Ameri­ of these factors persisted, even as institutions, can liberals, the fact of a popular sovereign doctrines, and procedures mutated. As Jeffer­ functioned as a basic article of political and son told Madison in March, 1789, "The rising constitutional faith. Indeed, virtually all of race are all republicans. [But we] were edu­ Johnson's struggles as a jurist had to do cated in royalism: no wonder if some of us with his awareness of government's depen­ retain that idolatry still."IO dency on the popular will-a will known Federal courts also stood on unsteady to be fallible, particularly in the short run. ground, viewed with immense suspicion in the Ordinary people "spoke" politically through states, in too many respects unprecedented, ejected assemblies; judges provided guidance, tainted with the strong odor of aristocracy. rules of decision, and legal interpretation, Only seven years before Johnson's arrival in but not "law" itself, unless legislators--or, the federal city, Congress had all too easily in the case of federal courts, state legisla­ adopted a constitutional amendment depriving tures and courts---had not yet articulated a Justices of the power to force states to appear rule. 13 Hence, it was essential that individu­ in federal courtrooms. II Marshall had scored als, whether ordinary citizens or public offi­ an improbable victory against JefTerson in the cials, maintain independence and avoid falling case of the midnight judges, 12 thereby assert­ under the sway of tyrants. Thus, Johnson's ing the Supreme Court's obligation to defend conception of republican "constitutions"-his constitutionalism against corruption. But ev­ view of where the people deposited their con­ eryone knew that the Court's ability to function ceptions of justice and good government­ as more than an appellate tribunal depended was multi-faceted, porous, outward-turning, as much upon political acquiescence as upon deeply social-a variant of English practice. Marshall's intellectual and personal attributes. How, then, should Americans organize a In the end, the Court's ability to extricate it­ republic rooted in popular sovereignty? Such self from the morass into which it had fallen questions pressed particularly hard after 1798, in the I 790s would be determined by its abil­ when an untested general government nearly ity to embody the notion of an apolitical rule collapsed under the weight of partisanship of law and develop bodies of doctrine with and rhetorical violence. As with the Anti­ which state legislators, the executive branch, Federalists, Johnson was caught on the horns and the sovereign people might be willing to of a dilemma: In Herbert Storing's words, if the comply. Antis "could not consistently hold to the doc­ All of this makes a point: In the sum­ trine of state supremacy because they admitted mer of 1787, when Madison and others met it would lead to anarchy," neither could they to resolve a looming publ ic crisis in Phi ladel­ accept "national supremacy because it would phia, William Johnson was a 14-year-old lad lead to centralized tyranny.,,14 Johnson's faith in knee breeches. That is an impressionable in well-made legIslation, particularly at the age. And post-revolutionary upheaval contin­ national level, may well have reflected resid­ ued well into the nineteenth century. Noth­ ual attachments to Parliamentary forms, which ing shaped Johnson's habits of mind more had been retained in Carolina. But evidence on powerfully than the experience of revolution the point is sparse. and related attempts to figure out how to We do know that Johnson came to Pres­ protect neighborhoods from federal encroach­ ident Jefferson's attention in 1804 as a likely ment, how to outwit historical process (which successor to Alfred Moore in part because of associated republ ics with fragility and S11011 his youth (better-establ ished men too often said WILLIAM JOHNSON 119

no) and his emerging reputation for sound re­ reporters sometimes had trouble distinguish­ publican principles and courage under fire. ing between concurrences and dissents: Some Jefferson had in mind the federal opinions involved a little of while oth­ wings, and Johnson seemed to have ers were written so coyly that clerical error what it might take, And so, in summer of 1804, might be forgiven, 17 Raw numbers might sug­ Jefferson's commission arrived in Charleston, gest as well that Johnson a steady stream of all three varieties throughout his career, and that dissents form a minor part of the 23 percent of 162 opin­ ions, But appearances are In the years between 1805 and 183 I, when John­ older man, He in in Hawkins in August 1804 and remained for twenty-nine v, two of his major- of the most tumultuous and formative years Ity opJlllOns be called major cases in the Court's tenure that coincided v, Hudson and Goodwin in 1812, and, eight almost perfectly with Marshall's, At the same years Mechanics Bank of Alexandria time, he advanced a I career in fits and v, Bank of 18 Indeed, when these starts (most notably with a multivolume biog­ cases are viewed en masse, it is hard to es­ raphy of General Nathaneal Greene of revo­ cape the that Marshall was in ISIS and published to bury his under an avalanche of a few years for arcane admiralty, and insurance cases, horticultural The concurrences, in contrast, while fewer connections with and business interests include several moments in in South Carolina, them, l'vfartin v, On the Johnson produced an im­ Hunter pressive body of majority opinions, concur­ (I and Columbian Insurance rences, and dissents-over 2,000 pages in v. Catlett (1 19 The dissents---even if we modern format. From the outset, he assumed eliminate a few as mislabeled-look a lot the role of contrarian, During his first visit like an judicial hit parade (for exam­ to Savannah as a circuit court judge in 1805, ple, Fletcher v, Peck, Fai!lax~' Devisee v, for he refrained from delivering the Hunter s Green v, Biddle, Osborn v, charge and in­ the Bank the United Stales, Bank the United Slates v, Planter s Bank

uc,.au,c"" Johnson delivered a number second cluster in the years before I to Marshall's and Story's-the first in 1805 currences and dissents accumulate after that (Lambert Lessee v, Paine) and the last in 1833 year. before his death from In stylistic and forensic terms, Johnson's the effects of botched jaw surgery,15 He al so opinions speak volumes about his altitudes, published ten concurrences-the first in I values, and intellectual Scholars the last in IS30-and thirty-eight dissents, be­ complain about Johnson's many detours into with Ex parte Bollman in lS07 and with hearing in 1833,16 pedantic, The are tours actually illustrate an do not include decisions to which Johnson valued commonsense Johnson court tual and doctrinal accuracy, solid 120 JOURNAL OF SUPREME COURT HISTORY and full disclosure of the circumstances of tions? the Justice is eharacterized almost the case-in his own writing and in every­ universally as a loyal, even Jeffer­ one else's. When subjected to anvthing less. he sonian to a lesser extent, a could be Jacksonian Democrat). These associations, in courts dealt in matters-among turn, pose as explanation for his obstreperous truth and the determination of rights. Noth­ behavior. Jefferson. after all, put him on the justice so as inaccu­ that he would rate or fraudulent accounts of law or facts. He rein in the Chief Justice. Kent T\ewmyer is not particularly despised sloth and duplicity. Time alone-nor is he describ- and he berated his brethren for erect­ Johnson simply as "that assiduous ing verbal or technical for skid- Jefferson ian. ,,24 over dubious circumstances that might Second, historians have divided Johnson's have altered the case, for disregarding rules career into an warm- of rhetoric, for getting the faets wrong or fail- up ending in about 1819, followed to eatch errors in printed an which Johnson sup­ unguarded letter to posedly capitulated to institutional pressure, about stupidity, and cowardice on Marshall's demand for doctrinal Marshall's Bench. On another occasion. his and some accounts) Marshall's charm. Dur­ these years, the Court did battle with state reportage in a minor case forced the legislators over (to a few examples) debtor viously to insert a detailed defense state nullification of federal of his headnote.21 law, authority to eharter a national the I Johnson was bank, and executive powers. The im­ cantankerous. One of Marshall's biographers is one of a Jeffersonian thought that the absence of "an embittered finally, Johnson bloc" to the of is said to have a conversion ex­ Johnson, who might have "headed such a bloc. perience in about 1822, coincident with an In wisdom, and firmness of char­ with Jefferson over the merits of he wrote, "Johnson had few peers on he re­ Court. But Johnson lacked eitherto please ofpersonality and temperament Jefferson or because he saw clearlv that the that so well Marshall for his task. ,022 25 Most famously, the South Carolinian ac­ cused Marshall of complicity in Fletcher v. Johnson's Peck, wherein the Court invalidated an act review, of the fraudu­ a modern yardstick. lent land grants as a violation of the Contract of Donald distin­ Clause--even though he agreed that guished constitutional scholar E.S. Corwin commended the book to readers "interested in the history of... distinctive American in­ In one of his milder sentences, Johnson noted stitutions" such as "judicial review and COI1­ that he had been "very unwilling to stitutionallaw. And, of eourse, Johnson did to the decision of this cause at all" beeause it make contributions, bore upon the face of it, of We find multiDle defenses inter­ a mere feigned case."n state commerce powers, the division of Temperament what have scholars powers between nation and states, interpreta­ made of Johnson's writing and motiva­ tions of important points in law, and WILLIAM JOHNSON 121

Johnson married Sarah Bennett, whose brother Thomas was governor of South Carolina. Pictured is the gov­ ernor's house in Charleston. scattered advice to students of American In­ creeds while writing his dian land title, banking, and insurance. But. of dissents? course, he falls short When repu­ We with Johnson's "",t","","... for tation depends on permanent contributions to separate whether in concurrence or doctrine, too much about Johnson was opposi­ in dissent-the trait, before all that tionist or dyspeptic, and too little survived as has earned him a place in the pantheon of precedent. Court dissenters and the trait that his­ All of these characterizations are deeply torians associate most firmly with his if because fail to take choices. Scholars regularly note both to account of what Johnson said, partic­ strength on the Bench and to leave his own intellectual imprint on the Mar­ shall with the Johnson's political tomary of seriatim Jefferson's Republicans and, somewhat later, of a unifying "opinion of the with Jackson's Iy in set­ initially by seniority that Mar­ tings where available alternatives shall himself most often wrote the opinions) radical democracy and then by assignment. Other Justices were in Johnson's words, "discretion to record from do- was he a man," as early Americans used that term? Did he seek mainly to advance out, and as Johnson himself noted in 122 JOURNAL OF SUPREME COURT HISTORY

with a significant con­ for ordinary men to in small sequence of this was to "free those in the end liberty as well a Justices who declined to publicize their con­ citizen's to currences or dissents from ac- the dustbin. He thus reaffirmed his aversion countable for their votes. ,,28 to and blind partisanship­ At issue is motivation. Why did Johnson including, we might lock-step insist upon his own words into the Jeffersonianism, record? Did he do so to please Jefferson- Silences volumes. Johnson did not particularly after I say that he ceived a islative power and reminding Johnson of the merits of seriatim He did not indicate agreement with and urging him to begin submitting Jefferson's assessment of the result in Cohens them in each and every case? A pointed letter in or any other case-remember that Johnson had October 1822 and the better-known been an economic Federalist in had of December 1822 surely lend always looked to for 111 conclusion. Here and elsewhere. Jefferson elo­ building an economic nation, and had sup- quently laid out reasons why Johnson ought the chartering ofthe Second Bank ofthe to toeing the why he should not United States, Such choices explain have succumbed to Marshallian pressure why Jackson wanted little to do with him. He ticularly in Cohens \I, ), state did not to dissent more To in the submit a opinion, moreover, is only ought to to go on record with a be forced--or permitted--to out their rea­ concurrence or note. perhaps a dissent. On sons as individuals30 Johnson told Jefferson this score, historians have been remarkably that he agreed finding "dissent" in the very idea of and would begin his own separa teness. 32 at once, He agreed that Marshall's Other for Johnson's behav­ for secrecy and anonymity enCOUf­ ior are not hard to find. On the one hand, sloth. he was called on the carpet by Yet Johnson's response, while clearly Jefferson-the man who had appointed him to compatible with Jefferson's agenda, was un­ the Bench. leader ofthe Republican remarkable in other He could with which he was and a man who Jefferson without his own could recommend him to presses a likely behavior. In Jefferson had blessed what author for histories of political Johnson was doing and would continue to do. the revolution and for biographies of To say the least, the Justice was no stranger figures. Jefferson was not to be antag­ to opinions. He had filed them many onized. times before the with On the other each time exolaining that he had a Jefferson's prompting to be what his ment and education dictated-a revolutionary continued and intensified oppositionist, a man incapable into the last half of his career. His opinions of surviving under another man's wing and on the South Carolina bench had all been unwilling to sanction consolidationism for delivered seriatim: the Jay Court had followed no good reason. Jefferson and Johnson Johnson undoubtedly about the merits of seri­ . the threat atim and Marshall's anti-republican to revolutionary idealism that Federalism still tendencies. But Johnson '8 many separate opin­ insidious tendency. for whether concurring or dissenting, WILLIAM JOHNSON 123 invariably with a reminder that he acted in supported centralized would not order to be his own man, to be heard in his tolerate a general grant of from tax­ own to be accountable to readers then ation or proseclItion for an "immense monied and later as himself and not as part of a col­ of all in its lectivity. To modern eyes, these are rhetorical path?5 All of these decisions were in In circles, with Johnson's behavior in South Car­ such statements olina, where he took the Federalist ber of the loyal side in economic matters. I he sycophantism. had repeatedly Moreover, Johnson's behavior weakens the case both for partisanship and for that deeply partisan peri­ odization of Johnson's career. Examples are men, he theorized, would too numerous to list. Johnson plainly sup­ never find their way to Washington City. ported state power wherever he could~that is, Virginia's fieri­ wherever it did not the union or crit­ Roane~were ical economic and diplomatic interests. But not amused. were they apt to forgive he had not hesitated to take on Jefferson or Johnson for with :Y1arshall in Cohens, state nor had he hesitated to side to which Roane also responded with with Marshall when he he was blind rage. But Johnson plunged on. A few or loose cannon than a months after he lent suppOl1 in the 80­ 1798, Madisonian called Steamboat Gibbons v. Ogden,37 four years after his part because he defied orders of the collector III been en- the port of Charleston, as time, a planned taken by Attorney General slave rebellion led by a free black, Denmark and Jefferson, by pronouncing South Carolinians brutally put down executive control of maritime trade an overex­ the mounted summary trials, and ex­ tension of constitutional powers. By 1818-19, ecuted the perpetrators; state legislators then Johnson sided with the enemy. He a statute requiring the jailing ofall free onto Marshall's opinion in Dartmouth black sailors in Charleston harbor. To this, cir­ v. Woodward (181 agreeing that state cuit court William Johnson could not latures were not free to alter the terms of old accede: in Elkison v. Deiiesseline,38 he inval­ this case, a royal grant idated the largely on the ground that it Dartmouth He agreed with Mar­ invaded exclusive right to shall in McCulloch v. (181 the interstate commerce. South Carolina defied source of one of Marshall's best-known state the of auton­ papers, states' right to taxes on Johnson as a traitor to the cause the assets of the Second Bank of the United autonomy; even Marshall crit­ States on the ground that the elastic c1ause­ icized Johnson for providing ammunition to and responsibility for a those who would "roast the Judicial stable currency~reached at least far enough to federal judges in a federal chartering ofa national bank. entirely of thorny States He also support for the Second Bank Also in 1822, with President Monroe's argu­ in his otherwise stringent dissent in Osborn ments in support of the constitutionality of v. Bank ofthe United States (1824), the Cumberland Road project in hand, Johnson that while the American people supported champions of a genuinely national 124 JOURNAL OF SUPREME COURT HI

and canals: the commerce the West erupted in a series of challenges to extended to road­ the fabric in Ken­ and toll collection.4o most fa­ tucky, Tennessee, Missouri, and other emerg­ in 1831-33. Johnson refused to defend states. There, to a few examples, Relief and Anti-Relief passed an ar­ to signal ray of debtor-relief laws kind expressly anti-unionism and forbidden in the federal constitution), estab­ to ensure on the southern circuit. lished "debtor banks" that issued bills ofcredit Additional reasons can be found for John­ of the sort en­ son's suooosed betraval of the acted revised bank taxation statutes aimed sin­ cause. in that important handful at the Second Bank of the United of letters to he said that he had not revoked dozens of bank charters with­ felt free to express his own views in 181 out evidence of fraud or breach of charter so great were pressures of the day: His tenure debtors and creditors alike without on the Court. he wrote confidingly, had not a meaningful remedy), eliminated debtors' been a "bed of roses." But he also mildly chal­ and-in the case lenged Jefferson's of the law as it ap­ the terms ofthe plied to Cohens. 41 good historians of 1792 (by which are not permitted to read too much into a hand­ came a with new, occupying ful of letters. We will never know claimant statutes. Kentucky went so far as to what Johnson told other We disestablish the original state court of can too, that letters to Monticello were means ofan ordinary statute, and to erect in more apt to survive-and to be more carefully its place a pro-relief court staffed with "party crafted~than those sent elsewhere. ifonly be­ cause they were more to be published in newspapers. A at the political land­ out of the scape also provides for John- Tennesseans. and Missourians undertook son's behavior-a 182 many ofthese in the name ofJefferso­ had become a minefield nian they refused to for Jeffersonians and Federalists alike. federal marshals when they arrived with sub­ In a perfect world, Johnson have en­ poenas; were behaving, for all the world, trusted much broader authority to like Jacobins. states. after 1819, evidence mounted of always a believer in moral turpitude and tyranny in and tors' to express the will of the municipal courts. As early as 1816. Johnson public·· of what Rawls has worried aloud about the lack of "moderation" called in courtrooms: the when confronted with irrational state and " as when Kentuckians tossed decisions. should be ready to sacrifice "the federal marshals bodily out ofthe state of opinion to the public welfare" and ture, posted at the door, and threatened either remand or reverse.42 A few years later, to reconsider statehood, Eastern newspapers western assemblies openly rebelled a9.ainst na­ dutifully reoorted all of these shenanigans. as tional authority, increasing did litigants into federal courtrooms to supporting state energy. with land and debt cases, determined to save The specter of nullification and place and face. It is also worth in other did not emerge as a serious in this context, that Andrew Jackson took on threat with the more famous nullification a good many old Relief Men-among them controversy. In the wake of the Panic of 1819, William Barrv and Amos Kendall--and that WILLIAM JOHNSON 125

Kendall wrote the bulk ofJackson's ve­ agreement with dutifully incorpo­ the charter of the Second Bank of the rated into the state in I In United States, Small wonder that Johnson's re- which framers Virginia with Jackson was cordial at best. land claimants' surveys To what extent, then, did Johnson ex­ which they could ",,,,,,,,,,,,,,p a political and jurisprudential con­ years, the at com­ version after 1822 in response to Jefferson's mon law for land warrants). On advice? That how much of Johnson's be­ the other hand, Jeffersonian legislators in Ken­ havior can be attributed to his f'I'l','p(mt'l tucky had invited confrontations with Virginia with and how much to other factors? land claimants. Could Johnson lend support to The record permits us to say that Johnson's de­ such a project in the name of Jeffersonian Re­ cision to his Brethren between 1819 publicanism? not. And so he submitted and 1822 had to do with the cases at informed by beliefs and that antedated his letters to Jefferson, Finally, we need to deal with Johnson's but insisting that the behavior after 1822-23, perhaps Court ought not to peg its ruling to the fed­ with his concurrence in Green v. one eral Contract Clause. Why incur the wrath of of those hybrid opinions that included ele­ states Why give the ments of dissent and concurrence,45 Here, of permanently cut1ailing a state's we see Johnson struggling with allegiances. right to determine land titles, or to say what On the one he knew that Kentuck­ its public might mean') The Con­ aimed to unsettle lawful tract Clause had been beyond recog­ to land with additions nition. There were other ways to rein in state in I to the state's systcm of occupying legislatures and to provide that had them, principles of and com­ every intention of mon law. Marshall's court could never reduce

Born in Charleston, Johnson was educated at Princeton before returning to his hometown to serve as a legal apprentice to Charles Cotesworth Pinckney. Pictured is a view of the river from the city. 126 JOURNAL OF SUPREME COURT HISTORY

a sovereIgn state to a condition of "hopeless tellces expressing both and renewed imbecil ity.,,46 worry about the inroads of consolidationism Thereafter, Johnson registered distress and monarchism~this with concerted more than once about the Court's and attempts, as in 1798, to suppress dissent and Iy its muscular reliance on this or that control the historical record. Johnson and Jef­ clause in the federa I when other ferson that republicans should act to se­ solutions-legal, as well or cure the papers of leading men, to them out better. of these outcries appear in con­ of Federalist Madison could be trusted currences offered in the name of accountabil­ to write a history of but not Hamil­ ity. On one ton, we have a Justice that the in light of the currency of nullification doc- Anti-Federalist fear of tyranny was he took pains to say, in response to argu­ manifest. What better evidence than the shred- ments that rei ied only on the Seventh that had long since "set­ shall '5 silencing of of whether the Bill 0 f For all of these reasons. the revolution­ Five ary turned to the of in a long, dissent in separate with a vengeance, v, Saunders, 10hnson lambasted his for the rest of his career··typicallv. as he put support doctrine would for what he called a "suicidal" income tax im­ at issue was posed by officials in his home town, so that of judicial powers, his corruption of constitutional texts, the Court's not be misunderstood or '-:rpnrpcpntpr1 ~'50 eagerness to assume Marshall's were the rules of the game in economic in the way that the Alien and Sedition Acts its supposed to proper balances had been tyrannical. If Federalists succeeded, 'vvithin federalism. We should take Johnson at the republic was his word: He did he not to be a Jefferson told Johnson in I "but

but to be an independent J ?'-Jote that the issue was man, to stand tall against misinformation, bad memory, history, control of the mas­ or the occasional cabal. Republican ter narrative--the heart and soul of a judges ought never to hide behind one self-constitution. What we forget cannot be re­ precedents to be nuanced; one could claimed or reactivated. ?'-Jot only did a man trust "the to find the rule in multiple have to for himself, but he also was to conserve "truth. Hence the flurry Johnson's pursuits ofsmall notes appended to Johnson's opinions, Historians tie those efforts to his the reports. In career on the Bench-but they should. One of the reasons for that protracted conversa­ tion with Jefferson was the fact of the ab- Ex Post Facto Clause, which he was sure had The American Review and other been misconstrued in Calder 8ull52 Why panned it for its pedantry (a true crit­ the note? Said a due respect and imbalance (this was for my learned " he aimed to to accuse Johnson of Anti-Federalist sym­ "show that have not proved the pathies). Historians have skidded over long, because had misconstrued "the parts of florid paragraphs. floods of anguished sen­ of which it is composed." He explored WILLIAM JOHNSON 127

Latin and English prepositions, quot­ his colleagues' for undue reliance on and expansion offederal constitutional clauses he wrote, was "owed to the when state constitutions or statutes or leg­ lic in the discharge of my duties. islative history-or remand to lower courts~ What about the suggestion that we should might serve as well. In Johnson remember Johnson primarily as a contributor concurred in part but also dissented in part, to the internal culture of the Court­ because he saw no need to tether the deci­ its procedures, its sion to the Contract Clause, Why not invali­ Justice who would have denounced what we date the act simply "on the reason have come to call the "cult of the Constitu­ a which will its sanctification and laws even on the Marshall's man who butted heads with John Marshal! time to the reach of and again, not about to do the Contract Clause struck him as both un­ It is instructive to about overzealous misconstructions offederal note that, in the law-minded Marshall judicial power and unreasonable (read "anti­ rested his decision on "principles ... common republican" and unfaithful) constructions of to our free institutions," whereas Johnson was constitutional What would he say to content with the less law-bound "reason and Corwin's suggestion that he contributed pri­ nature of In response to the Court's marily to central bodies and in Green v, Biddle (1821 ~23), Johnson were announced that, while he could not dis­ we to call him the "first agree with the he deplored an ullnec­ itor of Harlan and essary resort to the Contract Clause, For openers, few members of the early cannon when a would as well? Court were more distrustful than Johnson of This is not to say that Johnson the Court- and Constitution-centered culture or distrusted law, or, for that matter, that Marshall aimed to create--in no small part that he did not support the of because Johnson did not believe that "constitu­ federal power. On the contrary, he was a keen tion" ceased at the of parchment folios. capable of outflanking even Marshall "Constitutions" embodied not only the con­ on legal detail, particularly in admi­ vention's distillation of "public reason," but and real property cases. And, Iy also the utterances ofthe people when after I he came to think of those utterances were lawful and moral. To instrument for stable economic say that Johnson throughout his career, he power grant or ofimplied review pow­ to federal courts in cases in which ers is to understate the situation. Pro­ bodies possessed constitutional au­ vided the union itselfor the rule oflaw were not And, sometimes, as if at stake, he wherever possible to rea­ he refused to say unequivocally that a writ­ son, not from mountains of published judicial ten constitution per se was sufficient opinions, but from commonsense principles, for exercises of political power. In his view, state and precepts of natural the written constitution mattered, not because it was sufficient or best but be­ constitutional cause it contained a particularly rich lode of perhaps with his information about what the people in m,,!pr,nrnpnt The Fletcher v. idea that a Justice's 128 JOURNAL OF SUPREME COURT H that clause the Supreme Court on a modern judicial dissent collision course with the public was unthink­ able because it debased republicanism's popu­ lems in almost purely lar straying from the domain of law. We distin­ supported guish regularly between and consti­ that benefited "the pub­ tutional solutions; Johnson insisted that the lic"; it mattered little to him if individual political realm was where the in the pro­ most directly about legal fundamentals. Pol­ did not involve itics, in other words, In rtetCl1er, when, in his view, com­ with "constitution," to the extent that the ut­ mercial men took advantage of an all-too­ terances of the resounded pi iant misrepresentation, or most clearly in the polity Who could the emasculation of self-rule. Nor did it mat- to discern the sovereign voice in se­ cret judicial enclaves? Introverted reliance on one's own rarified meanings to the exclusion Johnson ofpopular meanings arrogance and in economic illegitimacy. as the undertaken did not do It is fairly clear that modern characteri­ to the rule of law, zations of him would have unsettled Johnson. lie and did not benefit the few at the His was an inclusive, porous concep­ expense of the many could mean a few tion both of the Justices' role in states to the exclusion ofthe rest ofthe and of what counted as Were these the choices of a man who when the nation and its courts were threat­ of himself as a "modern" ened directly did he step back from this expan­ if that term more comfortably-though never the landscape of law and formal constitutions. Were he siuing on the Court per se-to twenty-first-century Supreme Court, he would professionalism per se-than to the cause of be formulating opinions for each and every republicanism. The idea Marshall's case while castigating his Brethren for their and that one one's life obsessive noodl ing in minutiae, their secret over to defending the interests ofthe Court and conferences, their failure to take account of its productions held little The was newspaper editorials. Independent men, we to stand tall against tyranny. Johnson even held can hear him saying, speak for themselves; his ground against and he had little never do they hide behind other men. to do with Jackson's growing army of Therein lay the strengths and limits of men," many of whom would have fallen on Johnson's Way. He was a denizen of the late swords for their leader. He took on his home a man unwilling to look state repeatedly; and, while he owned forward for fear of losing sight of where he was no disunionist, risking home and repu­ he had been. historian Joyce Appleby, tation to defeat nullification. "Americans in the 1780s had constitutions­ We return to the Was a baker's dozen of them--but not a culture William Johnson the "first dissenter"? Yes, of constitutionalism. Such a culture devel­ and no. We perhaps should think of him as an at the time of his death in unwitting progenitor of a tradition of which it had not overtaken William 10hn­ he not because courts, no less than legis­ he disaDProved of disputation, but because gave voice to the collective wisdom WILLIAM JOHNSON 129

The Justices of the Marshall Court held winter sessions at Long's Tavern in 1808, four years after William Johnson was appointed. The tavern is the left one of what was called Carroll Row; the site on First street is now occupied by the Library of Congress. of the people, so as those views did not like Johnson saw himseJf as an the rule of lavv. were free oppositionist, a man against the incre­ information about the people's in­ mental advances of tyrannical forces of every tentions from many 59 philosophy, newspapers, Over time, Johnson has been on the losing state judicial decisions-so as utter­ side, a witness to the incremental erasure-for ances comported with ofjustice. To better or worse~of alternative ways of think­ cI imb inside constitutional texts was to about American constitutionalism. close doors and windows on the extraconstitu­ puts it this way: the celebra­ tiona I authors of social compacts. With Madi­ tion of sovereignty in America, the son, Johnson did not imagine that the Consti­ were restrained once the Con­ tution could mean whatever states it stitution was ratified. . a national mean. Rather, he insisted on consulta­ government continued to tion and deference wherever possible, and due open-ended goal. We speak of regard for the sovereign power, the source of the government in 1787 as though there was one's authority as This frame of mind only one way to do it, which is. .. [a] owes as much to the middling Anti-Federalists of the Federalists. There were alternatives to use Saul Cornell's useful term) and En­ the one from Philadelphia. Johnson

as to Jeffersonian "CI;JUlJlI.... a1 would say, in that there were alterna­ Johnson and many of his comrades gravitated every step of the way, to John Marshall'S to Jeffersonian societies because were consolidation ism. "The ofAntifederal­ more to their principles than were " Appleby adds, "at ... factions. But anti-party sentiment of the Constitution arose as much as anything nrF'\I?nIF'11 slavish attachment to from their at the roads not taken. Much WILLIAM JOHNSON 129

The Justices of the Marshall Court held winter sessions at long's Tavern in 1808, four years after William Johnson was appointed. The tavern is the left one of what was called Carroll Row; the site on First street is now occupied by the library of Congress. of the so long as those views did not like ,pT1~pr':rm Johnson saw himseJfas an the rule of law. were free oppositionist, a man pitted against the incre­ information about the people's in­ forces of every tentions from many 59 philosophy, newspapers, legislative orclceled­ Over state judicial decisions-so as utter­ side, a witness to the incremental erasure-for ances with ofjustice, To better or worse~of alternative ways of think­ climb inside constitutional texts was to about American constitutional ism, close doors and windows on the extraconstitu­ puts it this way: "Despite the celebra­ tional authors of social compacts. With Madi­ tion of popular sovereignty in America, the son, Johnson did not imagine that the Consti­ were restrained once the Con­ tution could mean whatever states it stitution was ratified,. mean. Rather, he insisted on consulta­ government tion and deference wherever and due open-ended goal. We regard for the sovereign power, the source of the government in 1787 as though there was one's authority as This frame of mind only one way to do it, which is ., legacy owes as much to the middling Anti-Federalists of the Federalists. There were alternatives to use Saul Cornell's useful term) and En- the one from Philadelphia, Johnson Whigs as to Jeffersonian Republicans, would say, in that there were alterna­ Johnson and many of his comrades gravitated every step of the way, to John Marshall's to Jeffersonian societies because they were consolidation ism. "The ofAntifederal­ more to their than were iSIS," "al. , . factions. But anti-party sentiment of the Constitution arose as much as anything nr~'\Jpntp'n slavish attachment to from their at the roads not taken, Much 130 JOURNAL OF SUPREME COURT HISTORY

Jess coherent than the the Antifed­ Shapiro, Bonnie Speck, and for readings of eralists nonetheless articulated a defense of and conversations about the essay, Hall (Ph.D. can­ that serves to remind us of a dif­ didate, Wayne University) provided expert research assistance in gathering, printing. and organizing Johnson's ferentAmerican politIcal tradition, a tradition many opinions. bristling with "possibilities.,,6o lDonald Morgan, Justice William Johnson, the First By 1 as both Johnson and Mar­ Dissente!': The Career and Constitutional Philosophy shall entered old age and as Jacksonian democ­ of a Jeffersonian Judge (Columbia, SC: University of racy swept the nation with the force of a South Carolina Prcss. 1954), secular revival, Johnson settled more 2John Rawls, Political Liberalism (~ew York: Columbia University Press, 1993),216 fT, fortably into 3Typicaliy, historians touch on Johnson only while writ- he had friends on the about something Ex.amples are legion. Jackson. To be sure, the President had little G, Edward White, The Marshal! Court and Cultural time for Johnson-his voluminous Change, 1815-1835, abridged ed. (New York: Oxford n(mrlence contains little more than a note University Prc~~, 1991),3, 176,293-94, 302,350-51; R. Kent Newmyer, John Marshall and the Heroic Age that Johnson was interested of the Supreme Court (Baton Rouge, LSU Pres" in literary fame and so could not be trusted to 200 I), 404-6, 437-438, J

G. Magrath, )1.1200 as he understood 64,70, and passim; Richard Ellis, TheJeffersoniall Crisis that term, but also constitutional bal­ (New York: Norton, 1971), 238-41. fresh biography of Johnson is long overdue. ances between nation and states, and 4Qlloled in Morgan, Justice William Johnson, pp. 13-1 legislators, rulers and ruled. Had he lived, he 14, would have been inconsolable at the prospect Jeffersonian Crisis, of Civil War-evidence, after alL of the utter Jeffersonian 239; Morgan, Justice William col of "public reason." Johl1sol1, 70livcr Wendell Holmes, "Some Remarks on John Mar­ To modern eyes, Johnson's views some­ shall," in Mark Wolfe Howe, James Bradley times seem oddly even naIve. His Tha)'er, Oliver Wendell Homes, and Felix Fral1kfurter dyspepsia stood in the way of lasting fame on John Marshall (Chicago: University ofChicago and wide circles offriendship: Johnson admit­ [967), 130-3 I. ted more than once to an loneliness61 BFor springboards into a huge literature see two claSSIC We too, about whether he works, Gordon Wood, Creation of the American Re­ public (l\ew York Norton, 1969). and Bernard Bailyn, should occupy the throne of First Great The Jdeological Origins of the American Revolution Dissenter. But William Johnson was a (Cambridge, MA Belknap Press of Harvard Univer­ brave and devoted sworn sity Press, 1992). On tyranny, see Marc W and intellectual or rhetori­ KIllman, Beyond Authority lll1d Liberty: State Consti­ tution Making in Revolufionary America (Chapel Hill, 62 a defender of the people's NC: University ofNorrh Carolina 1996), rule of law, a patriot to stand in the 9John Dickinson, qlloted in David Konig, "Constitutional wind powerful, corruptible public offi­ Contexts," in Sandra VanBurkleo, al., Constitu­ cials. 1n 2007, Americans might benefit from tionalism and American Culture: Writil1g the New renewed with such a man. Constitutional History KS: University of Kansas, 2002), 21, to William Johnson, March 4, 1823, in Thomas Jenerson Pa­ ENDNOTES pers, Series I Correspondence, American Mell1­ ory Collection, Library of Congress, availaMe at http:// arlicle originated one of tbe 2006 memory.loc.gov! all1i11eml collections! jefl'erson_papersl man lectures, delivered at the U.S. Supreme Court on May index,html (last visited May 2007) (hereafter AMC)

2, 2006, The wishes to thank ("[Much was known to him] and not (0 another, and 1\,1are Kruman, Janinc Lanza, Roberl 110 one knows everything, It the sum of individual WILLIAM JOHNSON 131

[knowledgeJ which to up the whole truth, and to ing that the decision obvious fraud); WWrVlllrW give an [sic] correct thru' future time, then do Insurance Co. v Le ROJ ai, I I U.s, 26 (! 812) (against not, dear Sir, withhold your stock of information.."). hair-splitting and inattention to case al hand); Dunlop IOThomas JetTerson to James Madison, August 1789, v, Munme, II u.s. (1812) (railing against obfusca­ in Thomas Jefferson Papers, AMC tion of facts and "the cloud of pleading"); The Aeolus, liOn the embarrassing E.leventh Amendment, Clyde 16 US, 392 (1818) (deploring the artifice and greed ofa E.. Jacobs, The Eleventh Amendment and Sovereign port collector); Gelstoll v. Noy/, 16 US 246 \ 1818) (tac­ Immunity (Westport, CT: Greenwood Press. 1(72). itly accusing Story of making the case into something it 12Marbury 137(1803).Seealso Cat/ell, 25 US E. Nelson, Marhlll:V v, Madison: TheOrigins and Legacy (1827), 397 part; on one issue, his of .Judicial Review (Lawrence, KS: University of leagues had "misapprehended the case, the question, and Kansas, 2000) the doctrine on which it turns"); Polk:, Lessee v. I3These sentiments appear often. for a variation, John­ 18 US 293 (refusing permit fraud to pass in the son's dissent in Daly:S Lessee I'. James, 21 U.S. 495 (1823), The Mar), amI Susan, 14 U.S. 46 (deploring misuse 61, claiming that the Court might disregard a single deci­ idence); Russel v. Transylvania Unil'ersily, 14 US 432 sion ofa Pennsylvania tribunal. (1816) (deploring misuse of history); and The William HHerben J Sloring, What the Antifederalists Were For King, 15 U.s, 148 (impatiently railing against collusion). (Chicago of Chicago Press, 1981), Other examples l5Lambert:~ 7 US 97 ( 805); Nichols 22W Melville Chief Justice John Marshall: A Fearson, US 103 (1833) Reappraisal (IthJca' Cornell University 1956), 16Ex parle Bollman, 8 U.S. 75 (1807); parle Tobws 184. H{lIkins, 28 US. 193 (1833); Cf. the compilation in Mor­ 2JFlercher v. ,10 US 87, 147-48 (1810) (Johnson, gan, William Johnson, Lexis and Wcsllaw yielded enu' dissenting). meratlons radically unlike Morgan's; careful examination 24K Kent Newmyer, The Supreme Court Under Mar­ ofthe opinions confirms the accuracy of the new numbers. shall and Taney (New York: Thomas Crowell, 1968),51 17For onc particularly ripe example, see HepiJurn and Dun­ 25For one such tremment, see Sandra F VanBurkleo, das 1'. al,9 US 262 (1809) (Johnson either "William Johnson," in Kermit Hall, et ai, Oxford Marshall apparently Companion to the Supreme Court of the United States, 2d ed. (New York: Oxford University Press, 20(6), whd1 has to do with the implementation of new pr(lCC(JU1'CS) 1hereby renounce. 18Hawkins Lessee, 30 US, 457 (1831): United 26Morgan, ,Justice William Johnson. Siaies v. Hudson and Goodwill, II US, (1812); Me­ 27Johnson to December 10, 1822, in Thomas chanics Bank ofAlexandria v Bank o/Co/umbia, I U.s. Jefferson Papers, AMC 326 (1820), 28G. Edward White, The Marshall Court and Cultural 19Marlin Hunter's Lessee, 14 US, 304 (1816); Gibbons Change, abridged ed. (NY: McMillan, 1988), US I (1824); Columbian Com- 29 19 U.S. 264 (1821). U.S. 383 ( 827). 10 US, 87 (1810); Jefferson Papers, A MC Majority II US 603 ( 813); opinions, among other faults, "save trou­ Oshorn v, the Bank oflhe Uniled Statee., ble of developing their opinion methodically, and even of 22 US. (1824); Bank o{the United States v, Planters making lip an opinion at all," thus damaging the Court's Bank ofGemgia, 22 US 904 (1824); Ogden v Saunders, credibility by casting doubt on the tntelligence ofjudges, 25 US. 13,297 (1827); Shanks v, Dupont, 28 US. 242 31lnterestingly, in his correspondence with Johnson, Jef­ (1830); v. Missouri, 29 U.S. 410 ( 1830); Cherokee ferson wanled Johnson to return to the practices of the na­ Nation v Georgia, 30 US. I (1831). tion's "primitive court"-meanmgJay's. Thomas Jefferson 2lWilham Johnson to Thomas Jefferson, December 10, to William Johnson, June 12, 1823, 1n Thomas Jefferson Jefferson AMC (disparaging the AMC (HI have heard it often noticed, and always Among the approbation, some will be en­ in which Johnson took issue, pomtedly and at length, to follow it occasionally, and in time it may be with error, duplicity, dishonesty, or sloppiness are these telt by aiL as duty, and the sound ofille primitive Lombert:~ Lessee v. Paine, 7 U.S. 97 (1805) (calling for court be again restored Why should not every judge, be clarity, common sense, attention to the mind ofa testator): asked his opinion, and give it from the bench, :)"). Yeaton v Balik ofAlexandria, 9 US. 49 (1809) (denounc­ 32Johnson to Jefferson, December 10, 1822, in Thomas sloppy language in a law's preamble sufficient to deny Jefferson Papers, MvlC right); Pime v. Tilrner, 9 US. 154 (1809) (insist­ U.S. 18 (1819) 132 JOURNAL SUPREME COURT HISTORY

17 US 316 (1819). December 10, I in Thomas Jefferson Pa­ 35Bank oftlle United States, 22 US 738 (1924) 873. pel's, AMC

3GAs one example variation on these themes, however, 52Sulleriee MUllltewsol1, 27 U.s. 380 (1829); CaldEr !'. Humphrey Fullerton el ui. v. BUS, 26 US. 604 (1828), Bull, 3 US. 386 (1798), m which Johnson refused to reverse a lower court decision 53Saller/ee, 27 al416 n. (a), that benefited the Bank ofthe United States because doing 54F1elcher l' 10 U.S, 87,143 (1810), would compromise state ofcounterfeit notes. 55Flelchel; 10 U.S. 143 ff. For commentary, R. Kent US, 1 (1824), Newmyer, John Marshall and the Heroic Age of the 388 F Cas, 493 (1823). Supreme Court (Baton LA: LSU Press, 200 I), wQlloled in N. Stites, John Marshall: Defender 1-33. For the see C. Peter Magrath, of the Constitution (Boston: Little Brown, I). 145. Yazoo, Law and Politics in the New Republic: The 400n the road, Maurice Baxter, The Steamboat Case of Fletcher v, Peck (New York: NortOI1 and Co., Monopoly: Gibbons v, Ogden, 1824 (NY: Knopf, 1972), 1967). 56Fletcher, 10 U.S. at 139, 143. For this observation, 41Johnson to Jefferson, 10, 1822, in Thomas Robert K. Faulkner, The ,Jurisprudence of John Jefferson Papers, r\MC Marshall (Princeton: Princeton University Press, J968), 42Mal'lil1 Lessee, 14 U.S 304, 365 (1816) 18. (Johnson concurring). S7Joyce Appleby, Liberalism and Republicanism in the 43For example, the defendant in Green Biddie was not Historical Imagination (Cambridge: Harvard Umversity a rich man, but a yeoman farmer with share of bank Press, 212, stock and a herd of sheep. Cornell. The Other Founders: Anti-Federalism 440n the Kentucky crisis such rulings as Green Bid­ and the Dissenting Tradition in America, 1788-J828 die, see Sandra F VanBurkleo, "'That Our True Republi­ (Chapel Hill, NC: University of North Carolina Press, can Principles Might Not Wither' Relief Crisis in 1999),85. Appalachia," Ph.D, Dissertation, University ofMinnesota, 59Jefferson regularly the word "oppositIon" to 1989. scribe his group of followers, his "[lany." U.S. 1,95(1823). to Johnson, June 12, 1823. in Thomas Papers, 46Green v. Biddle, 21 U.S. 1 (1823), I AMC: 47[essl!c ofEdward Livings/on (II. v. John Moore el aI, 60Appleby, Liberalism and Republicanism, 219, 221. 32 U.S. 469, I J 61 Sometimes he attrihuted a of isolation to political 4~Ogde/1 v, Suunders, US. 213, 297 (1827). estrangement, as when he told Thomas Jefferson that 49The longest, anguished expression of Johnson '5 had passed "half-century" and begun "to feel pain at partisan criticism ofhis \York can found among the Men present Day" But too, makes long letter to Jefferson of December 10, 1822, in a point: Johnson defined himself anachronistically-the Thomas Jefferson Papers, AMC, the topic recurs. of revolution, the enemy of tyranny, not of his own But, on history and its inevitahle distortion at the hands of Johnson to JeHersofl, December 10, 1822, in Thomas anti-republicans, particularly Federalists, see the long Jefferson Papers, AMC. sages in Johnson to Jefferson, April 1 I, 1823, in Thomas 620n this point, of JefTerson Papers. AMC. in complete agreement. Jefferson to Johnson, 50P/owden Weston el ul .. v. Citv Council ojCharies/oll, 27 June in Thomas Jefferson AMC ("Laws U.S. 470 ( 1829) are made of ordinary understanding, and should paraphrased Jefferson on December 10, 1822 therefore be construed by the ordinary of common ("...party hatred may but never dies"). Johnson to "). The Dred Scott Dissents: McLean, Curtis, Lincoln, and the Public Mind

LUCAS E. MOREL

Then what is necessary for the nationalization of It is the next Dred Scott decision. Abraham Lincoln, 1858

The Supreme Court of the United States is not the power in this world. Frederick Douglass, 1857

Late in his Supreme Court career, Justice of Missouri and therefore could not sue a citi­ Thurgood Marshall a perennial question zen of another state to bring the case into fed­ to potential Jaw clerks: "Do you like writing eral court. Why? Because he was black and dissents? [f you don't, this is not the of­ a descendant of slaves: to fice for you. The two dissents in the most blacks "are not included, and were not in­ notorious Court case in American tended to be under the word 'citizens' history, Dred Scott v. John FA. if in the Constitution, and can therefore claim one considers only their length, appear to have none of the rights and which that been written with relish; the day after instrument provides for and secures to citi­ Chief Justice B. Taney read his opin­ zens of the United States. claimed ion for the Court in Dred Scott v. Sandford, that in the eyes of "the civilized portion of Justices John McLean and Benjamin Curtis the white race" during the era, blacks read their five hours to do "had no rights which the white man was bound so. to respect."4 In addition, held that the B. 1820 Missouri read audible voice the opinion of the constitutional exercise of power ruled that Scott was not a citizen which is prohibited the Fifth Amendment 134 JOURNAL OF SU EME COU HISTORY from depriving any person of let us fill out the facts of the without due process of law. case. Who was Dred Scott? He was a slave who cision in Dred Scott marked the second first sued for his freedom and that of his wife, time the court had overturned a federal in 1846 law. The great debate over this latter cen­ with his master John ters on the Court's decision to go on to discuss surgeon, in the free state the substantive merits ofthe case, for de­ of Wisconsin termined that Scott was not a citizen under the as well as mar­ Constitution, then neither the Court ried in Wisconsin with his master's permission, nor the federal circuit court had to before to the slave state ofMissouri, hear the case. The case should have been dis­ Why was Scott John Sanford9 in the missed and Scott would have remained a slave U.S. Court? He was doing so because under the J 852 Missouri Court deci­ several at the state and lower federal sion in Scott v. Emerson. This was the argument court level to secure his freedom had produced Justice Samuel Nelson offered when he was mixed results due to technicalities and cross­ Also, his "ownership" passed from pressure from influen­ John Emerson to his wife Irene Emerson, who tial Southerners behind the scenes eventually turned the case and control of Scott steered a majority of the Court to have Chief over to her brother John Sanford, a citizen of Justice Taney write the official More New York. claiming citizenship as a Mis­ on Taney later. Now for the loyal souri resident, asserted jurisdiction by the fed­ Abraham Lincoln called the case "an as­ eral courts under the Diversity of Citizenship tonisher in history" Clause of the U.S. Constitution. 10 his nemesis We turn now to the dissents and dissenters. sion should be viewed as set­ Appointed to the Supreme Court by Andrew tled "a of sacredness John McLean served as Associate that has never been before thrown around any Justice from 1830 to 1861, dying one month af­ other decision.,,6 The stirred up ter Lincoln's inauguration. Called "The Politi­ the Dred an occa­ cian on the Supreme Court," McLean sion for the the role a kind of of the Court in the nation's gov­ around from ernance: Iy, what extent should perch upon which to roost, be- any of its decisions become "the as a Jacksonian Democrat and end- rule" for the other federal branches of gov­ I J A antislav­ ernment and therewith the American ery man from Ohio, he was the lone dis­ While commentators across the spec­ senter in the 1842 case of trum, north and south of the Mason-Dixon vania, which ruled that in with their affirmations or acted by states, as opposed to were of the Dred ScO/l rul it was uncollstitutional. 12 former and wannabe Senator McLean's dissent in Dred Scott ran Lincoln who drew from Justice Curtis's dis­ five pages-the third in the sent to set the terms of publ ic debate over case, Unlike Justice the future of in America-which to think Sanford's chal of the Court's Lincoln's mind was all about the future of risdiction was before them, because Scott had So let us consider Lincoln an won at the lower court level diction question. In particular, McLean noted clude his "dissent" in our consideration of the that Sanford did not claim that Scott could not case. sue in federal court because he was a as THE DRED SCOTT DISSENTS 135

Dred Scott was a slave who first sued for his freedom and that of his wife and two daugh­ ters in 1846 on the ba­ sis of residing with his master John Emerson, a military surgeon, in the free state of Illi­ nois and free territory of Wisconsin (present­ day Minnesota). Scott and his family were set free in 1857 through a purchase by a son of Peter Blow, Scott's first owner. Scott died a year later of tuberculosis.

this would the Court to "embrace the en­ if the and defendant were, as the Con­ tire merits of the case": Specifically, was Scott stitution states, "citizens of different states." a slave or a free man') Instead, Sanford wanted McLean then outlined six issues he would the case thrown out from the outset on the basis examine to decide the case, beginning with that the circuit court did not have "the ofslavery." He believed that slav­ to hear the case because Scott could not be a ery existed "only by positive law" and slood citizen of Missouri due to three criteria: "he "without foundation in the law of nature or the a negro of African his ancestors unwritten and common law." This meant it was were of pure African and were "limited to the range of the laws under which it into this country and sold as negro slaves. McLean argued that the Court could assume, for the sake of argument, that Scott was a cit­ where no laws it izen without prejudicing the outcome of the this weakened the case for in­ case, because Scott would still have to "assert cluding slavery as the kind of owed his claims to freedom" before the Court But protection under the Fifth Amendment's Due to aSSllme he was a slave on the Process Clause 14_a point Curlis in question would be "decisive of his fate": The his dissent. COllrt would have to dismiss the case for want The second issue was "the relation which ofjurisdiction, for they could only hear the case the Federal Government bears to in the 136 JOURNAL OF SUPREME COURT HISTORY

States." Simply put, "Slavery is emphatically inhabitants. McLean highlighted the North­ a State institution," and McLean observed that west Ordinance of 1787, first adopted by the the Constitution refers to it only in this light. Articles of Confederation Congress and then As a state institution, slavery within a given reaffirmed in 1789 by the Congress under the state could not be interfered with by the fed­ new Constitution, to show Congress's author­ eral government. The Fugitive Slave Clause ity to govern territory held on behalfofall the of the Constitution did require that a slave states. Among its provisions was the prohibi­ escaping from one state to another "be de­ tion of slavery throughout this territory. Alti­ livered up," but McLean noted that "slaves cle IV, Section 3, of the Constitution states that were referred to as persons, and in no other re­ "Congress shall have power to dispose of and spect are they considered in the Constitution." make all needful rules and regulations respect­ And to counter Taney's dubious assertion that ing the territory or other property belonging "the right of property in a slave is distinctly to the United States." In essence, until a ter­ and expressly affirmed in the Constitution,"15 ritory applies for statehood, what belongs to McLean pointed out that "James Madison .. a the nation should be governed by the national leading member in the Federal Convention, government. Therefore, Congress could pro­ was solicitous to guard the language of that vide a "temporary Government" of any fed­ instrument so as not to convey the idea that eral territory until states could be formed from there could be property in 111an.,,16 Prior to that territory. McLean qualified this author­ the ratification of the Thirteenth Amendment ity by arguing that Congress does not possess in 1865, the words "slave" and "slavery" ap­ "unlimited discretion": instead, it "is limited peared nowhere in the text of the Constitution. to means appropriate to the attainment of the Acknowledging that the new federal gov­ constitutional object," which in his mind did ernment "was not made especially for the col­ not include making "either white or black ored race," McLean observed that "many of men slaves."18 Reading the Constitution as them were citizens of tile New England States, "a practical instrument," McLean, like Curtis, and exercised, the rights of suffrage when the counseled "acquiescence under a settled con­ Constitution was adopted." This is a histori­ struction of the Constitution for sixty years," cal point that Justice Curtis elaborated upon at even if possibly "erroneous," and added that length. To refute Taney's opinion that slavery the Court should not control Congress's dis­ is a racial institution, McLean asked "[W]hy cretion in establishing the government for a confine our view to colored slavery? .. On terri tory. 19 the same principles, white men were made McLean's fourth issue was the "effect of slaves. All slavery has its origin in power, taking slaves into a new State or Territory, and is against right."17 This emphasis upon and so holding them, where slavery is pro­ might, rather than right, as the ground of all hibited." The short answer for McLean was slavery-this deliberate highlighting ofthe un­ "location, location, location." Citing the 1842 natural status of slavery (for whites as well as precedent of Prigg, he argued that a master blacks have been victims of the practice )-was who took his slave to a jurisdiction or loca­ McLean's way of restricting protection of the tion where slavery is not protected could not "peculiar institution" to its immediate locale. presume to have this form of property pro­ His third topic was the "power ofCongress tected by that jurisdiction. "Where no slav­ to establish Territorial Governments, and to ery exists, the presumption, without regard to prohibit the introduction of slavery therein." color, is in favor of freedom." Put differently, Territory ceded to the United States by Virginia McLean concluded from Prigg that "a slave is and other states required formal governance not property beyond the operation of the 10­ to prevent lawlessness and disorder among its cal law \vhich makes him such." Curtis would THE DRED DISSENTS 137 develop a similar argument. McLean added be called to give effect to the law of the free that a "slave is not a mere chattel. He bears State."23 McLean cited in detail the reasoning the of his Maker, and is amenable to ofthe Chief Justice Gamble, the laws ofGod and man, and he is destined to to conclude that Scott 1'. Emerson "overruled an endless existence."2o Why the hu­ the settled law for near . "Rights manity ofthe slave? To reinforce the presump­ sanctioned for tion of freedom over slavery-the one natu­ and cannot be ral and the other a product of local law. This is why McLean gave a list as declared, by a determination to counteract of court decisions from southern slaveholding the excitement the institution ofslavery states-and one from Missouri-to bolster his in the free States."24 He concluded his fourth claim ofthe slave's humanity and hence the pe­ point by out that Missouri had long culiar nature of his since made the common law of its statues; under the Constitution. because the common law includes "the Here McLean also derided claim principles ofinternational " this would dic­ that slaves could be taken into federal terri­ tate that a slave becomes a free man if he le­ "the same as a or any other gitimately finds himself in free territory. ,,21 He boldly announced that The fifth issue was whether or not a slave question ofjurisdiction, freed by residence in a free territory or state court, was decided by them reverted to if returned to a slave state "under the control of his master." McLean argued that slave states had "generally" con­ sidered slaves free whose masters took them to free states or territories to reside. He added that H[tJhis was the settled doctrine of the Supreme Court of Missouri," not to men­ of Missouri and that was as tion Virginia, Louisiana, and other property under the Fifth Amendment. Taking slave states. The principle he drew was that seriously on the question of comity: union ... [depends re­ thus permitted McLean to dismiss much specting the rights of each State." Slave everything else Taney uttered in his fifty-four­ states should continue to respect the laws of page free states as the latter operated to manumit five Missouri supreme court deci­ slaves that took up residence there will of sions to its most recent decision against their masters. If Illinois decided slav­ Scott in 1852, McLean demonstrated that the ery within its borders, and a slave became free state court had ruled since 1824 that a slave's by virtue of a master's residence there with residence in a free state acts as a de facto man­ his Missouri's laws should not umission. In particular, he that the 1836 the effect of Illinois's constitution if that said precedent of Rachel v. Walker, with facts quite slave then returned to Missouri. McLean found similar to those in Dred should be the another opportunity to dismiss substantive ar­ controlling legal This chain ofrul­ guments of when he was broken the 1852 case of Scott v. 1851 decision in Strader v. Graham as in which the Missouri supreme court to the Dred Scott case: "No ques­ ruled 2 to I in favor ofScott's master, tion was before the court in that case Dr. Emerson. Its there was that "when that And any on there is no act of manumission decreed to the any other point is obiter die/urn, and of no free State, the courts of the slave States cannot authority.,,25 138 JOURNAL OF PREME COURT HISTORY

McLean's sixth and last issue was whether Curtis'8 dissent was the of all the or not the decisions of the Missouri supreme Dred Scott opinions, court "on the before us" were bind- sixteen pages than opinion for on the US, Court. McLean stated the Court. Like Curtis with that the US. Supreme Court "follow[s] them the of jurisdiction: Did the federal where they a construction to the Stale courts have jurisdiction to hear the case at statutes." This went double for the Missouri all? As noted earlier, the question supreme court, their refusal to consider was raised at the outset because Scott claimed the a federal law and state constitution to be a citizen of one state (Missouri) had on Scott due to his residence in free areas a citizen of another state (John EA. Sanford of the United States, With "the ofa hu­ of New Article III, Section 2, of the man being" at McLean for the US. Constitution extends the judicial power legitimacy of the Court's consideration of the of the federal courts to claim of the Scott to freedom,26 McLean's dissent fendant, could establish that Scott was a the humanity of the circuit court would have to throw the case nents of the Dred Scott decision found Justice out for lack of jurisdiction, insofar as a slave Curtis'5 dissent a more refutation could not be a citizen and hence could not of Taney's opinion. Benjamin Robbins Curtis sue in federal court. But Curtis pointed out only served on the Court from 1851 to 1857, that Sanford never claimed that Scott was a He was a nationalist Whig from Massachusetts slave. Sanford plead that Scott was who was called "the slave-catcher be­ not a Missouri citizen because "he is a ne­ cause he supported the notorious 1850 Fugi­ gro of African descent, his ancestors were of tive Slave Act and the 1854 indictment of pure African blood, and were into this Massachusetts citizens who attempted to free country and sold as negro slaves." Curtis noted Anthony who was being held for re­ that "no cause is shown the plea why he is turn as an slaven His of the not so a citizen of the United States], ex­ Slave Act Jed fellow Whig and Pres­ cept his descent and the slavery of his ances­ ident Millard Fillmore to him to the tors," Here Curtis's reasoning in earnest, Court. not the national as he examined "who were citizens of the ure that McLean was, Curtis made headlines United States at the time of the adoption of the in his first term on the Supreme Court with Constitu tion. ,,}O his opinion in v. Board The short answer was, anyone who was a Wardens, which permittcd state of citizen of the United States under the nation's interstate commerce under the federal Consti­ first the Articles of Confedera­ tution's Commerce Clause. Curtis would go tion and Perpetual Union. Because the Articles on to greater fame for his dissent in the Dred did not empower the Confederation Congress Scott case. He heard the case despite the fact that his brother, George Ticknor argue the case for Scott. the Civil War, to be a citizen of any of the American Curtis would publish a of Lincoln's states was to be a citizen of the United States use of the war powers, the Emanci­ under the Articles ofConfederation. But under pation Proclamation. He later served as de­ this Confederation, to the adoption ofthe fense counsel for President Andrew Johnson US. Constitution in I did this include the latter's impeachment trial in 1868, free persons, descended from Africans held in CUl1is died in 1874. slavery"?}] Curtis answered: E DRED DI 139

Of this there can be no doubt. At history" of what whites dur­ the time of the ratification of the ing the American Revolutionary era thought Articles of all free about blacks: native-born inhabitants of the States They had for more than a century be­ of New of an inferior descended from associate with the white race, either in African were not only citizens social or political and so far of those but such of them as that they had no fights which had the other necessary qual ifications the white man was bound to respect; jJV00'-0':"-'J the franchise of """,C'tn"0 and that the negro might and terms with other citizens, lawfully be reduced to for his Chief Justice did not reply benefit. ... This opinion was at that to this and other claims of historical fact time fixed and universal in the civi­ Curtis, "It is diffi­ lized portion of the white race. It was cult at this day to realize the state of public regarded as an axiom in morals as in relation to that unfortunate race," well as in ... without doubt- he went on to infer from the for a moment the correctness of this opinion.33 not differed from Cur­ tis's more reliable historical account but also contradicted an opinion had given in his legal career, when in 1 18 he defended an abolitionist of in- slaves to riot: A hard to endure time... , It cannot be or sud­ denly removed. Yet while it contin­ ues it is a blot on our national char­ acter, and every real lover of freedom hopes that it will be ef­ fectually, though it must be gradually, wiped away; and looks for the means, which this necessary may be best attained. And un­ til it shall be accomplished: until the time shall come when we can without a to the in the Declaration of A strong antislavery man from Ohio, John McLean had every friend of humanity will seek to been the lone dissenter in the 1842 case of Prigg v. the chain of Pennsylvania, which held that fugitive slave laws en­ to the utmost of his power, acted by states~as opposed to Congress-were un­ constitutional. His dissent in Dred Scott insisted that the wretched condition ofthe slave. Congress had the power to exclude slavery from the territories and to liberate blacks voluntarily brought Thus Taney almost forty years into free states. before the Dred Scott decision-a time when 140 JOURNAL OF SUPREME COURT HISTORY he served as counsel to a protective society by its decisions. Given that Taney for free a time when he freed his own ruled that the circuit court did not have and a time when he read the Declaration diction to hear the case, he had no reason to as inconsistent with discuss its merits. Curtis America's institution. But in 1 ofconstitutional he that the words of the Declaration the peace and welfare of the country, is not, in "would seem to embrace the whole human my a fit to be thus reached.,,38 ... But it is too clear for dispute, that But because Scott was not shown to be a slave the enslaved African race were not intended to in Sanford's and hence Curtis con­ be and formed no part of the people sidered Scott to be a citizen entitled to have who framed and this decJaration."35 his day in federal court, Curtis thought that the Curtis disagreed with this reading of ''the circuit court had and so gave him­ of the Declaration and self permission to the merits of the the that in his case. "own opinion," he saw no inconsistency be­ Curtis then considered the central ques­ tween "these assertions of universal abstract tion: did Dred Scott's trip with his master from truths" and "their own individual opinions and slave state 'V1issouri to free state Illinois and acts." he did not think this free territory Wisconsin act as a man­ question was relevant to Scott's sta­ umission of Scott his prior to the tus; he was satisfied with "those substantial filing of the case? His answer took up about facts evinced the written Constitutions of two thirds ofhis dissent. For States and bv the notorious [i.e .. well under them": "in some of the came free In original thirteen free colored persons, and free tp""jtr\f'" upon many ra­ before and at the time of the formation of the tionales: state and federal court prece­ were citizens of those States."36 dents, the common law and law of Curtis went on to note that the word "white" the principle of comity states recog­ was considered and from use in the nize the validity of each other's governmen clause in the Articles of Confederation deal­ actions in a reciprocal fashion), Scott's mar­ ing with the and immunities" of riage with Sanford's consent, the consistent "free inhabitants" of the states. practice of congressional authority over fed­ tides of Confederation eral territories, and the inapplicability of the as citizens, and the Constitution that Fifth Amendment's due process to the Articles did to them or in slavcs, since they arc as their descendants of chattel only by municipal laws. which fluctuate argued that under the ex­ from state to state. cept for natura lizing "it is left Both Curtis and McLean released to each State to determine what free persons born within its limits shall be citizens of such and thereby be citizens the United did not allow the States."37 in Howard's Reports until Curtis then turned to the Curtis's request for a copy. A of Taney's dence between them proved of the 1820 Missouri Curtis suspecting that Taney delayed the pub­ called it an "assumption of authority" and "an lication of his opinion so he could exertion ofjudicial power [that] transcends the with additional arguments to Curtis's pub­ limits of the authority ofthe court as described Jished dissent-a suspicion that proved to be THE DRED DISSENTS 141 correct39 financial reasons as well as In short, "the framers of the Constitution in­ doubts about his usefulness "in the tended and the ultimate extinction of state of the court, Curtis resigned from the that institution.,,45 But within a of Court at the conclusion ofthe Term. the founding, cotton was well on its way to His dissent in Dred Scott v. to becoming and the 1 black slav­ be his swan song as a Supreme Court Justice. 4o ery was no tolerated out of Curtis's opinion was to but openly defended as "a goOd."46 be sold as a pamphlet and was said to have been Lincoln saw this of human equal­ carried around by Lincoln during his debates ity as the greatest threat to preserving Amer­ with the following year. ica's free institutions. "I think we have an ever A year before the Dred Scott growing interest in the free insti­ Lincoln wrote that the "question of at tutions of our country, he wrote in 1856. and the should be not only the to aid this process he thought citizens needed est \.,U\.""Vl but very the sole ques­ to "come to the rescue of this great nnc,hrr)p Whig and follower of ofequality. Lincoln'8 for free insti­ Lincoln had tutions to required a the new Republican party, which was then run- people-and it was his intention to the its first slate of national and nation recover this older way of thinking and he took time away from his law acting. extensively as a About a month after the Dred Scott tor for John Fremont in his home state of Illi­ opinion was officially published in Howard's nois. Two years earlier, with the passage ofthe Reports, Lincoln delivered a speech Kansas-Nebraska Lincoln wrote that its with of the Missouri aroused him as he had never been before."4! This J854 ing mentioned as the presumptive successor to law permitted the territories of Kansas and incumbent Senator Douglas48 His chief criti­ Nebraska to decide for themselves if slavery cism of as well as concerned would be allowed. Both were located north of the their reasoning might have on the the 36°30' parallel established the Missouri public especially regarding the defini­ Compromise of I 820 as an area where slavery ofself-government. Lincoln was "forever prohibited.,,42 But in 1854, under had to do fundamen­ the of Illinois Democratic Senator with "the individual rights which he believed included "black as well as theory sovereignty the settlers of either territory to de­ was "a mere deceitful pretense for the benefit cide the slavery question without interference of from Congress. As for Taney's opinion, Lincoln by This "principle of non-intervention by he would not discuss the merits of the with slavery in the States and Territo­ case in detail, satisfied that he "could no more ries" Lincoln could not abide. It represented on McLean and than [Dou­ a breach of national faith" regarding could on Taney."so Lincoln's principal the future of in America.44 Lincoln concern was what the nation's reaction to the believed the American Founders intended to decision would be. In other of what wean the nation permitting its use is a to those continuance in the short run in the states where who with it? When does a decision of it already existed, while adopting measures to the court become a nr~,,'p.rlP,nr binding on fu­ cut off its supply and restrict its expansion. ture cases? Lincoln several criteria 142 JOURNAL OF SUPREME COU HI for decisions: unanimity of tal line ofdefense future Court members, lack of partisan bias, the ex­ he called "a block to those who in of the legal community, steady prac­ after times seek to turn a free people historical rigor, and repeated affirmation back into the hateful oaths of desDotism," In In cases, not to mention the pub- other what the thinks about the

I<:;:,,,"C'1I'-'

He then took issue with what he called "our once Declaration" into "a mere "assumed historical " especially wreck" and ... shorn of its vi­ the Chief Justice's black Americans and and left without the out of the Declaration of and germ or even the of the individual the Constitution. Here he enlisted Curtis's dis- rights ofman in it."S) Or as Lincoln it in an refute bad To 1854 speech, "It shows that the has no the slave state of North very vivid impression that the negro is a hu­ free blacks to vote when man; and consequently has no idea that there the Constitution was ratified. Thus, blacks can be any moral question in legislating about were included as part of "the of the bim."s4 United States" who ordained and established Lincoln concluded his June 1857 the Constitution. Lincoln refuted his most sustained reflection on the Dred Scott Taney's that "the public estimate case, with the statement, "The of the black man is more favorable now than it cannot be read through a gold was in the oflhe Revolution. He Lincoln meant a $20 that "a lock of a hundred doomed the He implied that if the equal of the " all tending to negro were denied in the Dublle-DOlicY de­ make "the bate over the expansion of eternal.,,52 and Douglas did in their statements­ Lincoln saw this most then the future of in the United States ciation of the Declaration of would be determined simply by those who both and could make a profit from slavery. As Lincoln argue that the authors of that instru­ it in an 1854 speech against the Kansas­ ment did not intend to include negroes, Nebraska Act, "no right principle ofaction but the fact that did not at once, self-interest" would become the political order place them on an equality with the whites." of the day56 Numerical migbt under color of He hastened to point out that the authors of law, and not natural or civil right, would dictate the Declaration of "did not at the future of slavery and hence of freedom in once, or ever all America. white people on an equality with one or an­ A year after the Dred Scot! decision, other," adding that had no power to con­ Lincoln was nominated as "the first and only fer such a boon. They meant to de­ choice of the Republicans of lJ linois for the clare the right, so that the of it United States Senate, as the successor to might follow as fast as circumstances should A. Douglas."s7 He accepted the nom­ permit." Lincoln believed that the ination and that evening gave his famous of human equality, the of the Dec­ "House Divided" address. In that address, laration of Independence, was the fundamen­ Lincoln made a direct case against Douglas THE DISSENTS 143 as a standard-bearer for the free soil forces of Familiarize with the the West, for Douglas had drawn favorable no­ chains of are tice from northeastern Republicans who ap­ preparing your own limbs to wear precJated his efforts the them. Accustomed to trample on ton Constitution of Kansas as a democratic the rights of those around you, you 58 fraud Lincoln's address was a precursor to have lost the of your OWl1 the most famous election debates in American independence, and become the fit subjects of the first tyrant who rises. And let me tell you, all these for you if the institution-­ elections shall with some free states and some slave states­ Dred Scott decision and all future should dictate the future in the West­ decisions will be acquiesced ern territories and therewith preserve the union in by the 61 of the states. Lincoln with Douglas that preserving the Union was important, but he No one was more devoted to the rule oflaw than believed the Union had to be a certain kind Abraham Lincoln, but he never counseled his of union, devoted to a in order to be worth Orf'QPr\Jl it in 1854, bon of nripnf'nripn which meant its affir­ mation that "all men are created " He added, "If we do we shall not have saved the Union; but we sha! I have so saved it, as to make, and to it, forever worthy ofthe saving."s9 What, in Lincoln's mind, would not be worth A Union of American stiltes that no longer the universal basis of the rights of her citizens. Lincoln argued that was a cor­ it "tend[ed] to rub out the sentiment of liberty in the coun­ try, and to transform this Government into a of some other form."6o What is remarkable about this statement is Lincoln's observation that the American regime could undergo a radical transformation without a sin­ gle amendment to the U.S. Constitution being passed and ratified. To make an exception of the black man him from the Dec­ laration equality principle was to invite a future Arguing that Scott could be considered a citizen un­ on some other arbitrary basis. For der the Constitution, Benjamin Curtis's seventy-page Americans to that"liberty is the heritage dissent was popular enough to be sold as a pamphlet. of all men" was to plant "the seeds of It is said that Lincoln carried it with him during his de­ bates with Stephen Douglas the following year. Curtis tism around ... own doors." As Lincoln (pictured) resigned from the Supreme Court shortly it: after penning his dissent. 144 JOURNAL OF E COURT HISTORY fellow citizens to submit to their own govern­ to respect.,,68 Representing the free state ofllli­ ment with a quiet acquiescence.62 Douglas conceded that he did not think Lincoln believed that Douglas's the extent of through the popu­ their of the Kansas-Nebraska each to decide for whose gov­ ernments he explicitly asserted were founded Americans were heading toward a "upon the white basis."69 "crisis" over the future of slavery; they had Lincoln also worried that rep­ to address the issue once and for aiL "A house utation as a former Illinois supreme court divided against itself cannot stand," Lincoln and incumbent United States Senator observed; the nation could not "endure, perma­ would have a pernicious influence on the pub­ nently half slave and " The American lic mind: specifically, "to educate and mould Union would become one thing or the other. opinion, at least Northern opin­ This is why the of in the fed­ to not care whether is voted down eral territories took on such for or voted up." For to make its way even- the rest of the country. In the person of Dou- into the free states, all that was necessary Lincoln saw the of an American was to convince Northerners not to care about slaveocracy yet to come. it into the territories. No frontal as­ So, in his for the Senate, sault on freedom had to be made: Simply teach Lincoln used the Dred Scott decision to force citizens to be neutral about Douglas into a contradiction with the high about what court's ruling. Chief Justice had ruled that neither nor a territorial legisla­ ture had to ban in federal ter­ whereas believed that slavery way for in the courts. should be authorized or banned solely by lo­ Lincoln summed up the threat to freedom cal authority.64 Alluding to the Fifth Amend­ by the Dred SCali decision in his first ment's Due Process Clause, Tanev stated: "The debate with Douglas in August 1858: "[W]hat powers over person and of which we is necessary for the nationalization speak are not only not to Congress, It is simolv the next Dred Scoff decision. It is but are in express terms and they are for the Supreme Court to decide that forbidden to exercise them. He concludes no State under the Constitution can exclude it, that "if itself cannot do this-if it have decided that under the is the powers conferred on the Fed­ Constitution neither Congress nor the Territo­ eral Government-it will be we pre­ rial can do it. When that is decided sume, that it could not authorize a Territorial and acauiesced in. whole thing is done. I Government to exercise them. Lincoln ob­ the connection between "Under the Dred Scott decision, [Dou­ the Court's decision and the people's 'squatter sovereignty' out of cence to demonstrate how self-government op­ existence."66 emphasis upon those who But and did agree on one mind. "In this and like Unlike Lincoln and Justice who believed that "there is a difference be­ tween in a slave and .,,67 without it nothing can suc­ and Douglas thought that blacks were, he who moulds public sen­ in the words ofTaney, "so far inferior that they than he who enacts statutes had no rights which the white man was bound or pronounces decisions. He makes statutes THE DRED SCOTT DISSENTS 145

This pamphlet of Chief Justice Roger B. Taney's opinion in the case urges the curious citizen to "Read & Judge for Himself," 146 JOURNAL OF SUPREME COURT HISTORY and decisions or impossible to be and to in slaves upon a foun­ executed, Just what those statutes and deci­ dation that could not be threatened bvelected sions would be in the near future was forecast the in the election of I The northern Demf"lrrCl who nominated an election the outcome of which was set in refused to a federal slave motion the Dred Scott decision, code for the territories, Acknowledging the After the Dred Scotl case and Douglas's lack of consensus in the party over Dou­ defeat of Lincoln for the the Demo­ policy of sovereignty," that cratic faced notions of consti­ second resolution read: "That the tutional ways of with slavery: namely, Democratic party will abide by the decision of Southern slaveowners' demand for a federal the Suoreme Court of the United States upon slave code to guarantee the to hold what of Constitutional law." The they considered chattel slaves, in fed­ seventh and final resolution of the platform af­ eral territories versus Senator Douglas's pol­ firmed the ofthe U.S, Court icy of which was the to determine "the measure what­ heart of the 1854 Kansas-Nebraska Act and ever it may the Federal Consti­ the chief reason the P"IOIJUUll"aU came tution on the power of the Territorial upon the demise of the ture over the of the domestic attempt to hold which meant The went on to tr\(JPthpr at the 1860 say that any future decision of the Court on Southern the subject of "should be respected by delegates bolted and nominated their own can­ all good and enforced with prompt­ didates for office, In what some scholars ness and fidel ity every branch of the gen­ have called the first secession of 1860, a fac­ eral government.,,75 In short, as Lincoln said tion of southern Democrats left the national of Douglas's much vaunted for the high nominating convention and nominated the in­ court, "a decision of the court" to him should cumbent Vice John C- be "a 'Thus saith the Lord'" for the American of Kentucky, for President. Their Democratic citizenry.76 party platform was almost devoted to As for the protecting with its first resolution resolution of its ulating that "all citizens of the United States Scott case when it "That the new that the Constitution, of its own car­ ries Slavery into any or all of the Territories of the United is a heresy, at variance with the islation." Its second resolution asserted that of that instrument itself, with "to pro­ ous exposition, and with teet, when necessary, the and cial precedent; is revolutionary in its property in the Territories, these and subversive of the peace and of references to the rights of property included the country." Its eighth resolution added: "That ownership of slaves, and the obsession over the normal condition of all the of slavery in the Western territories was a di­ the United States is that of freedom, , . and we rect result of the controversy stirred up the deny the authority of of a territorial Dred Scott case. As one scholar summed it Je­ up, "Dred SCali was a convulsive effort of the existence to Slavery in any slave power, while its power to cut off United States:m The "secession" of South­ the slaverv question from the process ern Democrats the party and the THE DISSENTS 147

Republ the antislavery but non- people, is to be fixed by to victory that November. decisions of the Court, the the clearest sign of Dred Scot/'s instant they are in ordinary on the nation was Lincoln's allusion to the case in his First Address. At his as the nation's first to that can seven states had declared their extent, "secession" from the United States, elected a ernment, into the hands of that emi­ provisional and vice and nent tribunaJ.78 drawn up a constitution for the new Confed­ Lincoln argued for an active role for the peo­ eracy. And yet amidst the burgeoning crisis ple in a constitutional To do other­ of a divided Lincoln it nec­ wise would be to the government of the essary to consider how citizens should view decisions of the Court. After identi­ secession with anarchy and constitutional majority rule is "the true of a free Lincoln ad­ court's role in "con­ stitutional questions": national policy thus devel­ candid citizen must confess that oped out of a twofold conversation between if the policy of the government, upon the people and their rulers and between the vital the whole various branches of government. For

The Court had originally intended to restrain itself to confirming the Missouri lower court as having the final word on its own state law. but political events pressured the Justices to review the merits of the Dred Scott case. Pictured is the courthouse in St. Louis where the case was tried. 148 JOURNAL OF SUPREME COURT HISTORY

in his 1858 campaign for the Senate, Lincoln would open not just territories but every state stated in no uncertain terms how he would of the Union to slavery, Lincoln fought rhetor­ deal with the Dred Scoff decision: "If I were ically for the future of self-government. In a in Congress, and a vote should come up on few short years, this war of words over slavery a questitln whether slavery should be prohib­ and freedom became a Civil War that Lincoln ited in a new territory, in spite of that Dred would interpret as a challenge for Americans Scott decision, I would vote that it should."sO to "nobly save, or meanly lose, the last best, Lincoln never returned to Congress and so hope of earth." never got the chance to follow through on this pledge-at least not as a Senator. But he ful­ filled his pledge in his second year as Presi­ ENDNOTES dent, signing two laws prohibiting slavery in federal territory: the first (April 16) banned iHoward Ball, A Defiant Life: Thurgood Marshall and slavery in Washington, D.C. (with compensa­ the Persistence of Racism in America (New York: Crown tion to owners loyal to the Union), and the Publishers, Inc., 1998),354. second (June 19) banned slavery in all federal 2Dred Senti v. John FA. Sandfurd, 60 U.S. (19 How.) 393 (1857). Citations to this case wi II be frolll the Un lied Siaies territory. Reports. not HOH"ard:\· Reporls. All emphases in original In his December 1860 State of the Union unless otherwise noted. address, President Buchanan criticized those Jle!.404. who challenged "the correctness" of the Dred 41d 407. Scot! ruling "before the people." He implied SNelson, a northern Democrat, was originally assigned to write the opinion ofthe COlm···an opinion he proceeded to that political tempers flared needlessly because draft but ultimately submitted as a separate opinion after of public criticisms of the Supreme COUli­ Justice Jallles M. Wayne of Geol'gia persuaded a ma}or­ tempers set initially in motion by the long­ ity to have Chief Justice Taney write an official opinion standing "agitation of the slavery question," that would address all of the i,sucs raised. See Don E. especially by abolition societies.81 While Lin­ Fehrenbacher. The Dred Scali Case: Its Significance in coln agreed that some abolitionist rhetoric un­ American Law and Politics (New York: Oxford Univer­ sity Press, 1978).305-14. dermined the rule of law and respect for the 6Abraham Lincoln, '·Specch at Chicago, Illinois" (July 10, Constitution,82 he also believed that the gov­ J 858), in Roy P. Basler, ed., Collected Works of Abraham ernment ruled only by the consent of the gov­ Lincoln, 8 vols. (New Brunswick, N.J.: RutgCh Univcrsity erned. This meant that the governed had a duty Press, 1953),2 :495 (hereinafter cited as Collected Works; to watch their government to make sure it ruled emphases in original unless otherwise noted). "But Judge [Stephen] Douglas will have it that all hands Illust take according to their best interests. As he put it in this extraordinary decision, made under these extraordi­ his inaugural address, "While the people retain nary circumstances, and give their vote in Congress in their virtue, and vigilence [sic], no administra­ accordance with it. yield to it and ubey it in every possible tion, by any extreme of wickedness or folly, sense." Id. 2:496. can very seriously injure the government, in 7Abraham Lincoln, "Speech at Chicago, Illinois" (July 10. the short space of four years." 1858), in Collected Works, 2:495. 8For an exal11ination of the role Harriet Robinson played In his first formal debate with Stephen in filing her own suit for freedom and perhaps instigat­ Douglas in 1858, Abraham Lincoln confronted ing that of her husband as well. see Lea VanderVelde a heckler who had grown tired of Lincoln's and Sandhya Subramanian, "Mrs. Dred Scott," 106 Yale dwelling on the Dred Scott case. The heck­ Law Joumal 1033 (1997). Drcd Scott and his fnl11ilywere ler shouted, "Give us something besides Dred eventually set free on May 26, I~S7. through a purchase by a son of Peter Blow. Scott·s first owncr. This emanci­ ScoW" To which Lincoln responded, "Yes: no pation occurred by virtue of Irene Emerson's remarriage doubt you want to hear something that don't to a Massachusetts Republican Congressman, Dr. Calvin hurt."83 Convinced that public acceptance of Chafee. who was unaware that his new wife even owned the Court's decision would lead to another that the Scotts. Chafee gave up any legal rights to the Scott THE DRED SCOTT DISSENTS 149

family and transferred ownership to a Missouri resident, 29Benjamin Robbins Curtis, "Executive Power" (October Taylor Blow, so the Scotts could be freed. Scott died a year 1862), in Benjamin R. Curtis, ed., A Memoir of Ben­ later of tuberculosis on September 17, 1858, the 71" an­ jamin Robbins Curtis with Some of His Professional niversary of the adoption of the U.S. Constitution. Walter and Miscellaneous Writings, 2 vols. (Boston, Mass.: Lit­ Ehrlich, They Have No Rights: Dred Scott's Struggle tle, Brown, and Company, 1879), 2:306-35; Streichler, for Freedom (Westport, Conn.: Greenwood Press, 1979), Justice Curtis, ch. 6. 180-83 30Dred Scali, 558-72. 9Due to a clerical error, John Sanford's last name was mis­ 31/d. 572. spelled as "Sanctford" in the title of the case. 321d 572-73. IOArt. 111, Sec. 2, of the U.S. Constitution extends theju­ 33M 407. dictal power of the federal courts to disputes "between J4Cari Brent Swisher, Roger B, Taney (New York: The Citizens of different States." Macmillan Company, 1935), 97-98. I thank Harry V. IIFor a concise account of McLean's uniquely nonpartisan Jaffa for calling attention to Taney's reversal of opinion political activism, see Thomas E. Carney, "The Political in A New Birth of Freedom: Abraham Lincoln and the Judge: Justice John McLean's Pursuit of the Presidency," Coming of the Civil War (Lanbam, Md.: Rowman & lit­ III Ohio Hislon' (Summer-Autumn 2002), 121-44. tlefield Publishers, Inc., 2000), 2/9-21. See also Gregory 1241 U.S. 539 (1842) J. Wallace, "The Lawsuit That Started the Civil War," Civil 13Dred SCOII, 529. War Times (March/April 2006),49. 14/d. 535-36. )5Dred SCO/I, 410. 151d.451 3('1d. 575. 161d. 537. 37M 575-77. 17/d. 537-38. JR/d 588-90. IRCmiously, McLean does argue that should Congress 39Strcichler reports that "two surviving later drans contain deem not only slaves but also "free colored persons in­ several pages of the Chief Justice's handwritten additions jurious to the population of a free Territory, .. they have responding to both dissenters." Streichler, Justice Curtis, the power to prohibit them from becoming settlers in it." 147-48. See also Fehrenbacher, The Dred Scott Case, This he assertect "on the ground ofa sound national policy, 316-21. which is so clearly shown in our history by practical results 40;\ Memoir of Benjamin Robbins Curtis, 1:250-51; that it would seem no considerate inctividual can question Streichler, Justice Curtis, )45-48. it." Dred SCOII, 543. How this squares with the Privileges 41Abraham Lincoln, "Autobiography Written for John L. and Immunities Clause of Art. IV, Sec. 2, oflile Constitu­ Scripps" [c. June 1860], in Collected Works, 3:67. tion or the Fifth Amendment's Due Process Clause is left 42Transcript of Missouri Compromise (March 6, 1820), unsaid. Sec. 8. availahle at National Archives and Records 19Dred SCOlt, 538-47. Administration, "Our Documents", http://www.ourdocu 2o/d. 548-50. ments.gov/doc.php'7f1ash=tme&doc=22&page=transcript 21/d. 550. (last visited June 3, 2007) 224 Mo. 350 (1836). 43Kansas-Nebraska Act (May 30, 1854), Sees. 14 and 231d. 552-53 (quoting Dred Scotl v. Emerson, 15 Mo. 576, 32. available at The Avalon Project at Yale Law School, 586 (1852)) http://www.yale.edullawwebiavalon!kanneb.htm (last vis­ 24/d. 555-56. ited June 3, 2(07). 251d. 558-63 (referring to Sirader v. Graham, 51 U.S. 82 44Abraharn Lincoln, "Speech at Springfield, Illinois" (1851)) (June 26, 1857), in Collected Works, 2:405. 261d. 63. 45Abraham Lincoln, "Speech at Chicago, Illinois" (July 27For a recent examination ofCurtis's legal career, see Stu­ 10, 1858), in Collected Works, 2:492. art Streichler, Justice Curtis in the Civil War Era: At 46See, e.g., John C. Calhoun, "Speech on the Reception the Crossroads of American Constitutionalism (Char­ of Abolition Petitions" (February 6, 1837), in Ross M. lottesville: University of Virginia Press, 2005). For a brief Lence, ed., Union and Liberty: The Political Philoso­ account of Curtis's conservative Whig jurisprudence, see phy of,lohn C. Calhoun (Indianapolis, Ind.: Liberty Fund, Jake Lundberg's review of Streichler's book, "The Acci­ 1992),474: "I hold that in the present state of civilization, dental Abolitionist," Legal A//airs (March/April 2006), where two races of different origin, and distinguished by available at http://www.legalaffairs.org/issues/March­ color, and other physical differences, as well as intellec­ April-2006/review_Lundberg_marapr06.msp (last visited tual, are brought together, the relation now existing in the June 3, 2007). slavcholding States between the two, is, instead of an evil, 2R53 US. 299 (1852) a good-a positive good." 150 JOURNAL OF SUPREME COURT H

"Speech at Kalamazoo, Michigan" Government (Lanham, Md,: Lexington Books, 2000), 1856), in Collected Works, 2:366, 23-44. 1857) called attention to 63For the definitive account of Lincoln-Douglas de­ describing him as "the successor bates of 1858, Harry V. Jaffa's seminal Crisis of the in the US, Senate." The Lincoln House Divided: An Interpretation of the Issues in the Chronology of the Ufe ofAbraham Lincoln, Lincoln-Douglas Debates (Seattle: University of Wash­ http://wwlV. stg, brown .edu/proj eets/l incol n/day. ph p ?yyyy ington Press, 1973: reprint Chicago: University of 857&mm=5&dd=21 (last visited June 3, 2007), Chicago Press, 1982). 49Abraham Lincoln, "Speech at Springfield, Illinois" 64 Douglas slaled the most famously in his reply (June 26, I in Collected Works, 2:407, 405, 399 to Lincoln at their second senatorial debate in Freeport, 501d. 400. Illinois: 51 fd. 402, 52fd. 403,404, It matters not what way the Supreme Court 53 fd. 405-7, may hereafter decide as to the abstract ques­ 54Abraham Lincoln, "Speech at Peoria, Illinois" (October tion whether slavery mayor may not go into territory under the constitution, people 16,1854), in Collected Works, I a 55Abraham Uncoln, "Speech at Springfield, Illinois" have the lawful to introduce il ex­ (June I in Collected Works, 2:409, clude it they please, for the that slav­ 56AbrahaHl Lincoln, al Ill1nois" (October day 16,1854), in Collected Works, 2:255: unless it is sllnnorteC! tions, cry they will who will by unfriendly

Stephen A. Douglas, "Second Debate with Stephen A. Douglas at Freeport, Illinois" (August 1858), in Col­ fluence In the 1V0rld--enables the enemies of lected Works, 3:51-,52, As Don Fehrenbacher points free institutions, with plausibility, to taunt us as out-and as Douglas hilllself declared in the Freeport hypocrites-,-<:auses the real friends of freedom debate-this was !lot the first time Douglas uttered this to doubt our sincerity, and especially because it sentiment about the power of local regulations to trump forces so many really good men amongst our­ external edicts, Nevertheless, Lincoln '5 raiSing the issue sci ves into an open war with the very funda­ early in the debates and reprising it in subsequent de­ mental principles of civil libcrty-'-<:riticising bates, as well as the following year after Douglas's reap, the Declaration of Independence, and insisting pointment to the US. Senate, thwarted Douglas's chances that there is no right principle of action but to keep the Democratic party unified North and South, selFinreresr. Southern Democrats, notwithstanding their states'-rights bona fides, now demanded a federal slave to 57Paul M, Angle, ed, Created Equal? The Complete sure protection of their slaves in federal territories, Most Lincoln-Douglas Debates of J858 The Uni­ Northern Democrats stuck by Douglas and his of versity of Chicago Press, 1958; Midway Reprint, 1985), local "popular sovereignty," which meant congressional I nonintervention slavery in 58See Kenneth M. Stampp, America in 1857: Nation gave Republicans on the Brink (New York: Oxford 1990), nominate a presidential candidate who could win in 289-322. with the electoral college votes of most all 59Abraham Lincoln, at (October of the free states, The antislavery but nonabolitionist Lin­ 16, 1854), in Collected Works, coln of Illinois fit this description, Don E, Fehrenbacher, 60Abraham Lincoln, "Speech at Prelude to Greatness: Lincoln in the 18505 (Stanford, 10, 1858), in Collected Works, 2:500, Calif.: Stanford University Press, 1962), eh, 6, 'The Fa­ 61Abraham LinCOln, "Speech at Edwardsville, Illinois" mOllS' Freeport Question, '" (September II, 1858), in Collected Works, 65Dred Scali, 450-51, 62For an examination of Lincoln's devotion to the rule 66Abraham Lincoln, '''A House Divided': Speech at of law, especially as presented in his 1838 Young Men's Springfield, Illinois" (June 16, 1858), in Collected Works, Lyceum Address entitled "The Perpetuation Our Po­ 2:464, litical Institutions," see Lucas E. Morel, Lincoln's Sa­ 67 Dl'ed Scalf, 451. cred Effort: Defining Religion's Role in American Self- 68!d, 407, TH E DRED SCOTT ENTS 151

A. Douglas, "Douglas at (July 17, ed, Created Equal?, 60. said more much in Dred Scoll: 'The Government the United cited a letter by Thomas Jefi'erson to support his more judi· States, [left] it altogether with the several States to deal cious view ofthe Court's authority. Jefferson observed that with this race, whether emancipated or not, each State "to conSider the judges as the ultimate arbiters of aII con­ may think justice, humanity, and the interests and safety stitutional questions" is "a very dangerous doctrine indeed or society, require," Dred Scali, 426, and one which would place us under the despotism of an 70Abraham Lincoln, '''1\ House Divided', Speech at oligarchy." This contradicted Justice James opin­ Illinois" (June 16, 1858), in Collected Works,

such a difference of opinion, that the peace and harmony ers sojourning in a free state was continuing to make its of the country required the settlement of them by judicial way through the New York courtS, See Lemmon v. The Pea· decision," Dred Scali, 454-55. Lincoln begged to differ, pie, 20 New York Reports 562 (1860), For a discussion of agreeing wilh Jefferson that the "Constitution has erected Lemmon, sec Paul Finkelman, Dred Scolf v. Sllm/jiJrd: A no such single tribunal." Thomas Jefferson, cited by Abra­ Brief History with Documents (Boston, Mass.' Bedford ham Lincoln in "Speech at Springfield, Illinois" (July 1 Books, 19897),47-49, 186, and his more lengthy examt· 1858), in Collected Works, 2:517. For an examination nation in An Imperfect Union: Slavery, Federalism, and lcfi'erson's view ofjudicial review, see John The Comity (Chapel Hill: University of North Carolina Press, Supreme Court and Constitutional Democracy I I), N.v.. Cornell 1984),78-86. For 72Abraham Lincoln, "First Debate with Stephen Dou· to ex.pect any branch of government to rule without public glas at Ottawa, Illinois" (August 21, 1858), in Collected comment, especially matters of the greatest moment, Works, is tantamount to "creating will in the community inde­ i3Donald Bruce Johnson, comp" National Party Plat· pendent of the majority," as Madison put it in the Fed­ forms: Volume 1,1840-1956 (Urbana: University of IIli· eralist Papers, James Madison, The Federalist Papers, nois Press, 1978), 1, ed, Clinlon Rossiter (New York: New American Library, 74.1affa, A New Birth of Freedom, 298. 196]; 2003 printing), No. 5] 320-2 J. Madison contin­ 75John500, comp, National Party Platforms, 30, ued: "This, at best, is but a precarious security; because 76Abraham Debate with A power as well glas Ottawa, Illinois" (August 21, 1858), in Collected the unjust views of the major the rightful interests of Works, 3:28, the minor party. and may possibly be turned against both 71 Johnson, comp" :'IIational Party Platforms, 3 parties." ld. 321. 78Abraham Lincoln, "first Inaugural Address ,final ~oAbraham Lincoln, "Speech at Chicago, Illinois" (July Text" (March 4,1861), in Collected Works, 4:268. Lin­ 10,1858), in Collected Works, 2:495. coin juxtaposed what called "the judgment of this great 81James Buchanan, 'The Annual Message of Decem~ tribunal, the American people" with "that eminelJt tri· ber 3, 1860," in George Ticknor Curtis, Life of James bunal" that is the Supreme Court, in an effort to show Buchanan: Fifteenth President of the United States, how the people for the (New York: Harper & 1883),2:340,338. common good. used his inaugural believe that the of slavery is founded as he had long other public on both injustice and policy; but tbat the promulgation to reinforce the expectation that the people play their of abolition doctnnes tends rather to increase than to abate part in American self·government. In lieu of a its evils," Abraham Lincoln Dan Stone], "Protest in Court that dispenses irrevocable and incontestable judg­ [llinois Legislature on Slavery" (March 3, 1837), in Col­ ments, he appealed to patient confidence in the ulti· lected Works, I: 75, mate justice of the people" as they express their political 83Abraham Lincoln, "First Debate with Stephen A. Dou­ wishes through illl branches oftile federal government. ld. glas at Ottawa, Illinois" (August 21, 1858), in Collected 4:270 Works, 3:29. The Dissents of John Marshall Harlan I

LINDA PRZYBYSZEWSKI*

I want to start by you two quotations. Both are from Harlan's famous dissent from Plessy v. Ferguson in 1 when the rest ofthe Justices held that itwas constitutional to segregate people according to their race. The first quotation is the second is not well-known-in fact, some of you may have never heard it before. Here is the first

[I]n the view of the his own racial and that of his tamlly 111 the eye ofthe order to achieve In that try no dominant how Justice Harlan, who came of citizens. There no caste here. and who owned Our Constitution color-blind and became the sole champion of neither knows nor tolerates classes on the US. Court at among citizens. the turn of the nineteenth And here is the second: Harlan was born in Kentucky in 1833. His mother was Eliza Harlan, the daughter of Every true man has ofrace, and farmers. His father was James Harlan, a Whig under appropriate conditions when politician, and state attorney general the rights of others, his before who owned some half a dozen who the law, are not to be it is his worked in the house and that sur­ 'ivilege to express such and to rounded it. James was allied with take such action based upon it as to him seems proper. When we speak of racial in the tion. ButJames Harlan was no racial radical. In century, we do not think a letter marked with blots and which of racial pride as but a barrier to the indicate how much care he took to compose it, achievement of that equality. But Harlan lived he once wrote during a campaign that in the nineteenth century, and he drew upon the man who called him an abolitionist "lies in DISSENTS OF JOHN MARSHALL HARLAN I 153 his throat. James did bring what were called a man should be in such a freedom suits-lawsuits brought on behalf of cruel business that, out to the who claimed to be unlawfully held in middle of the street and shak­ such suits actually confirmed ing his of in all other cases. Like James Harlan told himself "You are a damned scoundrel. Good that he was a righteous man and a benevolent l'doming. si!:" After thus re­ slaveholder. It was a belief that John Harlan lieved bis he shared, his way to the HOllse of All families have stories they stories that serve to the core values of their to a serious families, The one that the Harlan told it does seem a little short of about James-a we may have been the twentieth century-occurred one morning as he was walking to church with his now, aren't we? After it's easy to be one; son, This is the version ofthe story recorded in they But to the Harlan this story the memoirs ofJohn's wife, Malvina Shanklin showed how James Harlan could be a man Harlan: and a slaveholder-a in fact. Not does James condemn the slave trade, One Sunday morning, on his way to he condemns the brutalities of another slave­ church, he passed in the main street holder, Malvina Harlan concluded her story a company of slaves that were be­ with this comment: ing driven to the "Slave Market" in a neighboring town. The able-bodied To those who heard and saw him that men and women were chained to­ there was no of pro- gether, four abreast, proceeded by the in his Like some old old ones and the little "'pickanin­ Testament prophet he seemed to be nies," who walked unbound. down Heaven's maledictions This pitiful was in upon the whole institution of Slavery. charge of a brutish white man, be­ Like all stories that become legends by be­ longing to a class which in those told and retold, this one was surely shaped were called "Slave-drivers." '. Their over time, It was deliberately shaped to dis­ badge of office was a tance the Harlan family from slavery's cruel­ like whip made ofblack every ties. Notice how the slaves were being brought blow from which drew blood. to slave-market in a neighboring town, as The sigbt stirred my father-in-law though the Harlan's hometown ofFrankfort did to the of his nature. not have its own slave-market. Malvina sug­ He saw before him the awful that slave families were broken up only billties of an institution "the division of family estates"-that division estates, and the sale when white slaveholders died and their prop- involved the sep­ was sold or inherited-as though slave­ aration ofhusband and holders did not have the option their and children" . slaves in their as though Kentucky was father-in-law could do not a slave export state that sold to liberate the poor creatures then be­ young men and women down the river to cot­ fore but he was so filled with in- in the Deep South. The Harlans that anyone himself although they denied it in their 154 JOURNAL OF SUPREME COURT HISTORY

posed to have said th at he would like to have God on his side, but he must have Kentucky. But Lincoln had long been an anti-slavery man, and emancipation became a part of hi s larger strategy for winning the war. On Jan­ uary I, 1863, the Emancipation Proclamation officially declared free all slaves held in dis­ loyal territory. Harlan resigned his commis­ sion that year, in response to his father's death and the needs of the family law firm. Malv­ ina Harlan explains that in order to keep all the slaves in the family-since Eliza Harlan, Family lore has it that when James Harlan, father as a widow, was only entitled to one-third of of the Justice, passed a slave auction on his way to church one Sunday, he pointed his finger at a James's estates- Harlan pledged himself for slave-driver with a whip and said "You are a damned the value of these slaves and so became the scoundreL Good Morning, sir." owner, in effect, of eight human beings: Bob, Lewis, Hemy, Sarah, Jenny, Silva, Maria, and Ben. memories, bought and sold slaves for profit Harlan may not have resigned his com­ or convenience. mission out of di sgust with Lincoln's policies, We can recognize the fictional qualities but he made clear his opposition to Lincoln of thi s story and still appreciate the power it from then on. He campaigned against him held for Jo hn Harlan. When faced with the in 1864 and reminded hi s audiences in Ken­ most important political and moral dilemma tucky and Indiana that the war was fought of his life, James's son seems to have re­ for Union, not for emancipation. He com­ membered what his father's example taug ht plained of "the ruinous effects of such a vio­ him. lent change in our social system" and declared John Harlan faced that dilemma after the the Thirteenth Amendment, which freed the Civil War. When the war broke out, he had slaves, "a flagrant violation of the right ofsel f­ thought hi s duties clear. The Whig party had government." (The self-government of white fallen apart over the slavery question in the Kentuckians, ofcourse.) When Union General 1850s. John Harlan claimed allegiance with the John M . Palmer recruited male slaves after the Union party when the governor of Kentucky end of the war in order to free them and their tried to straddle the fence and declare Ken­ families, John Harlan was state attorney gen­ tucky " neutral." But local sentiment turned eral, and he had Palmer indicted for violating strongly towards Union when the Confederates the slave code of Kentucky in 1866. actually raided Kentucky. The state declared it­ Even as Harlan was arguing hopelessly self for Union, and Harlan, along with about for the Union as it was, white terrorism had 30,000 other men, joined the Union Army. He broken out in Kentucky. Around 10,000 white raised his own regiment of over 800 men, the Kentucky men had fought for the Confederacy. Tenth Kentucky Infantry, in the fall of 1861. Now they came home, and many ofthem were Like many white Kentuckians, Harlan fought angry. With the blessing of the Democratic for the Union as it was, with slavery still intact party, they formed into gangs called Regulators in the Southern states. And President Abraham or named after their leaders-Skagg's Men, Lincoln refused to make emancipation a war Rowzee's Band-and began working violence aim early on precisely because he did not want upon whites and blacks across state. The Freed­ to alienate the border states. Lincoln is sup­ man's Bureau report on Kentucky for I 867 lists THE DISSENTS OF JOHN MARSHALL HARLAN I 155 twenty eleven rapes, and 270 cases of badly maltreatment-and those are just the instances that someone was brave to and Margaret Blacks from Harlan's hA''YlP'rrmf'1 beaten in Jessem­ that white gangs rode over the 1868. side from county to cOllnty John Harlan faced a choice. The HarJans terror wherever they go, whipping, had always told themselves that they upheld the rule of law and the white supremacy that attacks in their law enshrined; they told themselves that their to Here are just a few of them: practice of white supremacy under slavery had Colored school hOllse burned in been benign, even benevolent. But in Kentucky December 1867 after the war, the rule of law meant a federal Samuel Davis mob in Har­ Constitution that had been amended under the 1868, leadership ofthe William Pierce hung mob in Chris­ defed that July 1868 women were soon to be citizens of the United Roger hung by mob in Brad­ States White supremacy no longer meant the July 1868 rule of law. The Democratic party Colored schools exhibition attacked a white supremacy that was clearly mob, July 1868 the benevolence of James Harlan.

Although the family has denied it, the Harlans bought and sold slaves for profit or convenience. But John and his father James were benevolent slaveholders who believed they were treating their slaves well. Pictured are typical slave quarters on a Kentucky farm. 154 JOURNAL E COURT HISTORY

to have said that he would like to have God on his side, but he must have Kentucky. But Lincoln had long been an anti-slavery man, and emancipation became a part of his strategy for the war. On Jan­ uary I, [863, the Proclamation declared free all slaves held in dis- Harlan his commis­ sion that year, in response to his father's death and the needs of the family law firm. Malv­ ina Harlan explains that in order to keep all the slaves in the Eliza Harlan, Family lore has it that when James Harlan, father as a widow, was only entitled to one-third of of the Justice, passed a slave auction on his way to church one Sunday, he pointed his finger at a James's estates-Harlan himself for slave-driver with a whip and said "You are a damned the value of these slaves and so became the scoundrel. Good Morning, sir." of human

Ben. memories, bought and sold slaves for profit Harlan may not have his com­ or convemence. mission out of disgust with Lincoln's policies, We can the fictional qualities but he made clear his opposition to Lincoln of this story and still the power it from then on. He him held for John Harlan. When faced with the in 1864 and reminded his audiences in Ken- most important and moral dilemma of his life, James's son seems to have re­ not for He com­ membered what his father's taught of "the ruinous effects of such a vio­ him. lent in our social system" and declared John Harlan faced that dilemma after the the Thirteenth Amendment, which freed the Civil War. When the war broke out, he had violation of the of self­ thought his duties clear. The Whig party had " (The self-government of white fallen apart over the in the Kentuckians, ofcourse.) When Union General J 850s. John Harlan claimed with the John M. Palmer recruited male slaves after the Union party when the governor of end of the war in order to free them and their tried to straddle the fence and declare Ken­ John Harlan was state atto rnpv "neutral." But local senti ment turned and he had Palmer indicted for towards Union when the Confederates the slave code of in 1866. raided Kentucky. The state declared it­ Even as Harlan was arguing self for and Harlan, with about for the Union as it was, white terrorism had 30,000 other men, joined the Union Army. He broken out in Kentucky. Around 10,000 white raised his own regiment of over 800 men, the Kentucky men had fought for the Tenth Infantry, in the fall of 1861. Now came and many of them were Like many white Kentuckians, Harlan fought angry. With the of the Democratic for the Union as it was, with sli II intact party, they formed into gangs cal led in the Southern states. And President Abraham or named after their Lincoln refused to make a war Rowzee's Band-and working violence aim on because he did not want upon whites and blacks across state. The Freed­ to alienate the border states. Lincoln is sup- man's Bureau reoort on Kentucky for I 867 lists E DISSENTS JOHN MARSHALL HARLAN I 155

murders, eleven rapes, and 270 cases of Silas Woodford, sixty, badly maltreatment-and those the instances beaten by disguised that someone was brave to report. Smith Curtis and Blacks from Harlan's hometown, re­ beaten in Jessem­ that white gangs rode over the country­ me 1868. from county to county John Harlan faced a choice. The HarJans terror wherever they go, ravishing had told themselves that they upheld and our people without provocation. the rule of law and the white supremacy that They listed attacks in their petition law told themselves that their to Congress: Here are just a few of them: of white supremacy under had Colored schoolhouse burned in bcen benign, even benevolent. But in December 1867 after the war, the rule of law meant a federal Samuel Davis hung mob in Har­ Constitution that had been amended under the 1868. of the Republican party. The law or­ William Pierce hung by mob in Chris­ dered that slavery be ended, and black men and tian, July 1868 women were soon to be citizens of the United George Roger mob in Brad- States. White supremacy no meant the July 1868 rule of law. The Democratic party Colored schools exhibition attacked a white supremacy that was clearly by July 1868 the benevolence James Harlan.

Although the family has denied it, the Harlans bought and sold slaves for profit or convenience. But John and his father James were benevolent slaveholders who believed they were treating their slaves well. Pictured are typical slave quarters on a Kentucky farm. 156 JOURNAL OF SUPREME COURT HISTORY

White supremacy now stood for the burning of explained that their unwillingness to actually schoolhouses, the murder of men, the beating use the word "slavery" in the Constitution was of women. How could a boy who remembered proof of their directive for the future genera­ his father's disgust at the brutality of a white tions: slavery had to be destroyed. slavedriver become a man who would join a Harlan even explained the Dred Scott political party that urged the murder of blacks case of 1857 as part of this plan. Actually, it in the dead of night? was a test case brought by antislavery people By 1868, Harlan made his choice. He be­ who wanted the Supreme Court to determine came a Republ ican and rode through the state whether or not a slave was made a free man denouncing white terrorists during his candi­ when he entered into a free territory. The result dacy for governor in 1871 and 1875. "These Ku was a decision that shocked many people; it de­ Klux are enemies of all order," he declared. clared, not only that Congress had no power to Anyone who opposed the exercise of black ban the spread of slavery into the territories, civil rights "is no friend of the law, is an enemy but also that a black man---even if free-had of our free institutions." no rights that a white man was bound to respect. Harlan acknowledged how he himselfhad Anti-slavery people found the decision changed: appalling at the time. But, looking back, Harlan made it into a crucial step towards It is true fellow-citizens that almost emancipation: the entire people of Kentucky, at one period in their history, were opposed I think I may say that that case was to freedom, citizenship and suffrage a work of special Providence to this of the colored race. It is true that 1 country, in that it laid the foundation was at one time in my life opposed ofa civil war, which, terrible as itwas, to conferring these privileges upon awful as it was in its consequences in the freedman, but I have lived long the loss of life and money, was in the enough to feel and declare, as I do end a blessing to this country in that this night, that the most perfect despo­ it rid us of the institution of African tism that ever existed on this earth was Slavery. the institution ofAfrican Slavery. I re­ (I should add that Harlan also thought the joice that it is gone! I rejoice that the Supreme Court itself a providential blessing). Sun ofAmerican Li berty does not this This is why Justice Harlan, who came to sit on day shine upon a single human slave the Supreme Court Bench in 1877, saw the un­ upon this continent! doing ofDred Scolt, both by the Civil War and In order to make sense of the metamor­ by the constitutional amendments that resulted phosis that the nation and he had undergone, from it, as so important to understanding the Harlan would come to see the chaos and hor­ meaning of citizenship for blacks. ror of the Civil War through the lens of a na­ When the Civil Rights Cases-the first tional mission. As he did with his own father, important decision on the Civil War amend­ Harlan downplayed the Founding Fathers' re­ ments---came before the Supreme Court in sponsibility for slavery. He lectured on con­ 1883, the Court had to determine whether stitutional law here in Washington. We have emancipation and black citizenship meant that a verbatim transcript of these lectures from the races could be segregated or excluded 1897-98 by two students who took them down by the owners of railroads, hotels, theaters, in shorthand and then typed them out. These and other public accommodations. The ma­ lectures portrayed such men as Jefferson and jority of the Court decided that neither the Washington as reluctant slaveholders. Harlan Thirteen Amendment's ban on slavery nor the THE DISSENTS OF JOHN MARSHALL HARLAN I 157

These stirrups were used by Harlan (pictured at right in uniform) when he served as a colone! in the Tenth Kentucky Infantry. He raised 800 men to fight for the Union in 1861 but, like most Kentuckians, he was fighting to retain a South with slavery. 158 JOURNAL OF SUPREME COURT HI

Fourteenth Amendment's against crimi nations such as and exclusion state action reached such private actions. Seg­ were allowed only because blacks held the sta­ and exclusion did not amount to slav­ ery, they reasoned. And the individuals who discriminations were owned these businesses could not be reached were raised to the status of citizen with the under an amendment that barred any state from Fourteenth Amendment. citizens of their privileges and im­ As r no one had raised the Dred SCali due process, or the equal protection case in the of the law. come from? The No one had raised the Dred Scolt case owned by Chief Justice in the But Harlan used it to penned the infamous words in the Dred Scott to the Civil War amendments, case. Justice Harlan had gotten it from the mar­ blacks--even if free-had been considered shal of the Court. He had almost lost it when part ofa slave race without that any white a descendant of Justice asked him if man was bound to before the Constitu­ she might have it. But Justice Harlan's wife one of Malvina-who "He values one Freedmen's Bureau official re­ it more than it is for any woman to in 1865 that Southern white men "still do"--hid it from him and claimed had no that the black idea where it had gone. That is, until she found her husband with his dissent in the Civil Rights Cases. He was the youngest mem­ ber of the Court and to find himself standing alone when the whole country was waiting to hear the outcome of the decision. She took the inkstand out of cleaned it, filled it, and left it on his desk "as a bit of inspiration." Justice Harlan quickly finished the dissent. Malvina considered it justice." When the Court held in the Civil Cases that private individuals discrimi­ nate against citizens on the basis of their race under the Fourteenth Amendment, it refused to rule on the question of whether the states themselves might be barred from such discrimination. A group of black men in New Orleans decided to find out whether such state action was prohibited. Thev decided to a v. Ferguson in 1896-to chal­ a Louisiana law that but separate accommodations" for the races. Harlan dissented alone. Justice Henry Brown explained for the Justice Brown, the author of the Plessy opinion, wrote that the state legislature had the right to discriminate Court majority that the law was constitutional against Homer Plessy in order "to act with reference because it did not touch civil rights, but only to the established usages, customs, and traditions of what he termed "social rights"-this, the people, and with a view to the promotion of their comfort, and the preservation of the public peace and the fact that it was state action and presumably good order." therefore "civil" by definition. Injustifying his THE DISSENTS OF JOHN MARSHALL HARLAN I 159

Justice Brown drew upon the very demanded a that was blind to race. that Harlan saw as overturned by the His next sentence was this: "But in the view of Civil War amendments. Brown wrote that the in the eye of the law, there determining the of is in this country no dominant ruling the Louisjana state "is at to class of citizens. There is no caste here. Our act with reference to the establ ished usages, Constitution is color-blind and neither knows customs and traditions of the and with nor tolerates classes among citizens." The pe­ a view to the promotion of their comfort, and culiar racial of whites was to express the preservation of the public peace and whatever racial superiority might claim order." by power. This was why whites Harlan dismissed all of Brown's prece­ damaged themselves by blacks. This dents as Those from before the is Harlan warned his Brethren that "the Civil War were irrelevant, and those after the destinies of the two races, in this are war "were made at a time when ... it would linked and the interests not have been safe to do justice to the black the common of alJ man; and when, so far was the rights of blacks shall not the seeds of race hate to be were race was practically, planted under the sanction of law. allow- the supreme law of the land." The Civil War the states to incorporate racial amendments had undone these be­ in the Supreme Court had cause undid the and discrimina­ national mission. It was a mission set out tion that Justice had upheld in Dred the one that the Civil War genera­ Scott. tion had taken one bloody further. It was We find Brown's references to "social a mission that made the United prejudices" and "racial " to be offen­ Ian '8 words, "a the rmln,'pccprl sive. Yet as Harlan developed his argument, he all lands in their himself appealed to white racial but in hopes for the American mission explain the the of He appealed to anger and sorrow with which Harlan wrote in as to uphold the achievements of the Plessy that Civil War and to fulfill the American mission. boast of the freedom This is what he said: "The white race deems our people above all other peo- itself to be the dominant race in this country. But it is difficult to recon­ And so it 111 in in ed­ cile that boast with a state of the in wealth, and in power." You law practically, puts the brand notice he called the white race dominant, not of servitude and degradation upon a superior. might account for this dom­ large class of our our ination, but Harlan held out the possibility of equals before the law. The thin dis- future so long as whites remained of "equal" accommodations for true to their nation's mission of human passengers in railroad coaches will I doubt not, wilt continue to be for not mislead anyone, nor atone for the if it remains true to its great wrong this day done. and holds fast to the of constitu­ tional (emphasis added).What made There are other decisions by Harlan­ white was not how looked, ones that are not celebrated-in which he did but how they behaved. not invoke the color-blind rule as he logically Anglo-Saxons had long told themselves should have. One involves the schools, ability to establish the other interracial Pace under the rule of Alabama let stand a state law thal pun­ ished mixed-race more than 160 JOURNAL OF SUPREME COURT HISTORY

When Harlan died in 1911, the African Methodist Episcopal Church (pictured) held a memorial service in his honor. Harlan had attended Frederick Douglass's funeral there in 1895. same-race adultery on the grounds that the Court's opinion refusing to close the white high black man and the white woman punished in school or to find any ill intent in what the board the case were punished equally. Harlan was had done. The situation here was not as clear part of a unanimous Court. The public school as it might appear. The public school system case was Cumming v. Richmond County Board mixed public and private funds at the time, and of Education, in 1899. The school board had there was a black private high school available closed a black high school in order to use that charged the same fees as the black public the money to keep open the black grammar high school had . school. Black parents sued to have the white Historians have pointed to these two de­ high school closed. Harlan handed down the cisions in order to prove that Harlan was a THE DISSENTS OF JOHN MARSHALL HARLAN I 161 hypocrite or a racist or simply that he made no sense. I would argue that Harlan's jurispru­ here and dence did make sense. ft grew out of his of his own history and the his­ trade, and are I am tory of his country. He built upon what he to say that if there is a black man who knew. The legend of James Harlan as the righ­ can get ahead of me, I will him teous slaveholder led his son to join the Re­ and and his progress party and to embrace the Civil War in life does not excite my envy. This amendments. As a white man, Justice Har­ world is for us and this lan learned to legal power in order to for us all. And prove the of his own racial legacy. whether he be That white could be lost white or there is room in this to act ethically, but it could also be lost lit- broad free land of ours, for all of us. through racial mixing. It is hard for us Harlan was to encourage his students to to understand what Harlan was share this sentiment with him. Better to copy a because we see racial as a barrier on Court Justice in his pursuit the road to legal equality. But to Harlan, it was than to act like some white loser who could not a bridge. That does not mean that the source a of his racial jurisprudence did not create When Harlan died in o.c. in cal problems for him. Harlan's failure to 1911 after some years of service on out in those two cases involving so-called so­ the African Methodist cial rights indicates that he did see the logical Church over on M Street held a difficulty. memorial service in his honor. This was the Despite these inconsistencies, church that Frederick had attended. Harlan stands out in the historical record. In a Harlan was one of the few whites who had period often dubbed the nadir of race relations walked into the church as part of Douglass's fu­ in America, when the number of l!1­ neral in 1895. The program for the creased every year, he was one of the few white Harlan service in 19 jihad the Justice's photo- people in power to insist that black Americans on the cover and below it the words "A had an unlimited potential, which they should True Friend of the " The service began be free to pursue. He once told his law students with Beethoven's "Upon the Death ofa Hero." this: looking back, we are quick to those in the past for not being as brave as You occasionally meet with a we tell ourselves we would have been, when, man,] as 1did about a year ago, who we have never faced such challenges never did an honest work in his (most of us, anyway). Whenever I have heard life, and who never earned the sa It that scholars complain that Harlan did not live he ate on his food .... This man was up to his color-blind Constitution, and that his disturbed at the failure to do so meant he was not much worth race would come into I have thought ofthe of contact with the Whites in this coun­ that AME church, and I have thought that they try. Well the white man who has probably knew what they were about. that has got his nature, who has for a hu­ *This lecture draws on Professor man because he is one, wher­ book The Republic to ever he sees that sort of man is John Marshall Harlan of North not much disturbed by the that Carol ina Press, 1999). The Four Good Dissenters in Pollock

CALVIN H. JOHNSON*

The overall theme ofthis lecture series is dissenters. This contribution to the series is on the dissenters in the 1895 case of Po!lock v. Farmers' Trust & Loan Co. In Pollock, the Court decided, bv a vote of 5-4, that the 1894 federal income tax was unconstitutional. The four dissenters~Justice Brown of Michigan, Justice John Marshall Harlan of Justice Howell Jackson of and future Chief Justice Edward D. White-would have upheld the tax. Dissenters "I not a direct tax 3 Under the established doc­ or, as Justice Jackson trine back to the time of the Founders, matsu, to the "moral apportionability was a necessary element of As to we have become the "direct tax." If was not reaSOl1­ This small slice of his- the tax was not direct. 4 The rationale for the line of cases with the most "cogency and force," said Joseph was to set­ that "no tax could be a direct one, in the sense of the constitution, which was not capable of ina! intent of the Constitution. to the rule Jaid down Under the Constitution, direct taxes have in the constitution. All four of the dissenters to be apportioned among the states popula­ said that the century of orecedents settled the tion. Originally, the formula was population issue 6 slaves at The in Pollock decided that the slaves was the original reason why ap­ income tax was a direct lax that failed for want portionment came into the Constitution. The of The believed that dissent and the majority in Pollock the function of allocation on whether the income tax was a direct tax. to prevent an assault on wealth, so The four dissenters in Po/lock would have plied the allocation followed case law. The Court In J 895, the had twice before held that an income tax was on land was a direct tax, and then decided that THE FOUR GOOD DISSENTERS IN POLLOCK 163 an income tax on rents from land was so tanta­ high in states where the objects of tax are rare. mount to a tax on land that it was also direct.! It could be even worse: If Kentucky has no In May, the Court returned to decide, to carriages, for example, then the state's entire kill the rest of the 1894 income tax. 8 quota would hover over the border waiting to The Sixteenth Amendment to the Consti­ pounce down upon the first fool with a carriage tution, ratified in 1913, now allows an income to drive across the state line. tax without apportionment, overriding Pollock Apportionment by population especially on the specific tax before it. The Court it­ victimizes poor states. Connecticut, for in­ sel f also retreated from Pollock. By the time stance, has roughly twice the per capita wealth, of the Sixteenth Amendment, the Court had income, or consumption that Mississippi has. 2l heJd that all the taxes that came before it were An apportioned federal tax on consumption, not direct taxes-sometimes quite creatively, income, or wealth would mean that Mississip­ but always distinguishing Pol/ock9 and what pians would have to pay tax at rates roughly it later called Pollock's "mistaken theory."lo twice as high as in Connecticut. The reason Still, Pollock is not quite dead. It is still used why poor Mississippi citizens would pay tax to support a narrow interpretation of the Six­ at twice the rates is that Mississippi is a poor teenth Amendment. ll It has been overruled state and has less tax base over which to spread on a separate issue, its holding that Congress its quota, whereas Connecticut is a rich state may not tax interest paid by state and mu­ and can spread its quota with low rates over nicipal borrowers,12 but it has not been ex­ a large base. When the tax base is uneven be­ pressly overruled on its aggressive application tween any two states, apportionment is a per­ of the apportionment requirement. There are verse rule, without positive justification. It can also people who like Pollock's tax-killing re­ serve only to kill the tax. sult, so you never can tell. In HFI/on, the Justices were Founding Fa­ thers who still walked on earth. Each of the Hylton Justices had contributed to the origi­ I. The Perversity of Apportionment nal debates on apportionment and direct tax: Apportionment of tax cries out for an expla­ Justice James Wilson,16 William Patterson,17 nation of what it is doing in a good neighbor­ Samuel Chase ls and James Iredell,19 with hood Iike the Constitution. When the per capita Chief Justice Oliver Ellsworth looking on 20 tax base is uneven between any two states, ap­ In Hylton, the Founders, sitting as Justices, portionment by population is perverse. Take, decided that the consequence rebutted the for example, a carriage tax, the subject of the premise that the tax on carriages was direct. Court's 1796 case Hylton v. United Stales, 13 No tax could be a direct one if it was not capa­ which started the line. Carriages require streets ble of being apportioned. and roads, and the Court hypothesized that Consistently, the reason why the Supreme New York might have ten times more carriages Court had held twice previously before Pol­ per capita than Virginia. 14 To meet apportion­ lock that the income tax was not direct is that ment under that assumption, tax rates would the rates would be draconian where income have to be ten times higher on a carriage in was sparse. 22 The four dissenters in Pollock Virginia than on a carriage in New York. There all cited the perversity of apportionment, each was never any reason why people in Virginia in his own way.23 should pay ten times higher tax rates on a car­ A killing requirement in the Constitu­ riage. A carriage tax was a common tax, 15 and tion is quite a historical puzzle. The Consti­ there is nothing especially suspect about it. tution overall is a tax document-a pro-tax The absurdity is forced by the rule of appor­ document-vvritten to give the federal govern­ tionment. Apportionment makes the rates very ment enough revenue to pay the war debts. 164 JOURNAL OF SUPREME COURT HISTORY

In April 1895, the Supreme Court decided that Congress could not tax income from mu­ nicipal bonds or rents from real estate, but they were divided 4-4 on the rest of the tax. The Washington Post cartoon said the little girl symbolizing the in­ come tax was "some­ what crippled." In May 1895, the Court re­ turned to the issue and dec ided 5-4 that the rest of the tax could not be separated from the unconstitutional parts and killed the whole tax.

Under the Articles of Confederation that pre­ Constitution proposed an amendment in the ceded the Constitution, Congress could raise state ratification conventions that would have funds only by requisitions upon the states. Af­ prevented federal use of direct tax, except ter the Revolutionary War ended, the states where a state failed to pay its quota of a stopped paying their quotas. The desperate requisition 25 The fight over the direct tax immediate need for the Constitution was to was the most fiercely contested issue in the give the federal government enough tax to pay ratification. In the darkest days of the rati­ enough of the war debts to restore the federal fication period, George Washington wrote to credit. We could stiff the veterans-immoral, Thomas Jefferson that he thought the direct but what are they going to do? We could stiff tax restriction was the amendment that the the suppliers-where were they going to go? Anti-Federalists "were demanding most stren­ We could stiff the French-their support had uously" and that it was also the only one of won the war, but they were now bankrupt and their amendments to which he had any seri­ could not lend again. But we could not stiff the ous objection."6 For their part, Anti-Federalists Dutch on the debts we owed them, because in said that "[t]o render the Congress safe and the next and inevitable war, the federal gov­ proper. ... take from it one power only: that ernment would need to borrow from the Dutch of direct taxation."n In the end, the Federal­ again24 A serious hobble on federal tax would ists prevailed and denied the Anti-Federalists have been inconsistent with the desperate pur­ restrictions on direct tax. pose for which the Constitution was adopted. The surprising thing about the debate over The proponents of the Constitution also direct tax is that neither side saw apportion­ fought bard for federal power to lay direct ment as a restriction, much less a killer re­ taxes. The Anti-Federalist opponents of the quirement. The federal power to lay direct E FOUR ...:...... ,..., 01 IN POLLOCK 165 tax had to be apportioned, but both sides to collection-now numbers over many the fight described the direct tax at issue as collected the new and wonderful technol­ "unrestricted." Anti-Federalist leader Patrick ogy of searches of told that "the clause before material.)] Both the you a power of direct taxation, un­ dissents in Pollock relied on a bounded and unlimited."28 New York Anti- sparse collection of historical materials. My Federalist leader John opposed the collection of"direct tax " samples supports the clause the general what he argument that the chain ofprece­ called the power direct taxes without dents before Pollock and the four dissenters restriction."29 Apportionment did not come in Pollock itself are true to the intent out of Anti-Federalist to direct tax, ofthe framers of the Constitution. Reasonable but was in place in the document when the apportionability is a necessary element of the Anti-Federalists decided to oppose all feder­ definition of"direct tax" in the original mean- ally decided direct tax. On the other side of the The reason why was never Alexander Hamilton oppo:;ea considered a hobble was that a tax was a di­ any restrictions on direct tax because emergen­ of an cies for more tax revenue "cannot be collection also provides fixedorbounded,evenin ,,30 Ifthe evidence that the majority explanation for ap­ Anti-Federalists had portionment has the function ofapportionment backward: that is, by popula­ tion was not written to protect wealth from tax, taxes? If Federalists had perceived direct tax but rather to reach the wealth of a state. to be dead already the then why would take the debate as seriously as A. "Direct Tax" Was Tax within they did? No one for or the Constitu­ Apportioned Requisition tion understood at the time that is a product of the was a killing Why? That is a tion system. Under the Articles of Confedera­ tion, were the way Congress historical puzzle, akin to asking the \.j"ne"uv. 32 from Sir Arthur Conan The Hound could raise revenue The requisition system of the Baskervilles: "Why did the hound not was an illegal assem­ bark?" Solution to the first leads imme­ for its clerks. diately into the second: What was the rationale beneath apportionment in the original War by telling each delegate to of the Constitution? What was return to their states and bring back some sol­ to diers and some money, so as to for in- IlCIIUCll"-'C, from the most powerful nation on earth.]) A requisition requires appor­ II. The Original tionment under some formula or other to de­ of Apportionment of Direct Tax termine a state's quota. We can get a better understanding ofthe histor­ The term "direct tax" was a neologism ical intent ofapportionment than was available coined not before the Constitution. I to the Pollock Court, because we can collect can find no references to "'direct tax" in the a better survey of the original sources. As a American published literature or letters be­ part of this overall project, I tried to figure fore the end of 1782. In 1781 and in what apportionment was about by back 1783, proposed that it be allowed its into the original debates and collecting illumi­ OWll tax, a tax on called references to '"'direct tax." My collec­ the impost.34 "Direct tax" originally meant a tion of of "direct butterfly tax that was not the Since the only 166 JOURNAL OF SUPREME COURT HISTORY alternative to the at the time was The failure of the proposal ulti­ 5itions, "direct tax" was a reference to a federal mately required the Constitution. Had Rhode requisitlon or to the state taxes that would be Island not vetoed the we would have used to a reqUIsItIon. limped along in confederation mode, without The 1781 proposal to give need for a national government or a new Con­ the stitution. As Hamilton put it, begat all states as an amendment to the Articles Convention."46 of Confederation. Rhode Island vetoed the Without the impost, the federal govern­ proposal. The rest of the country was ap­ ment would need to restore the federal credit palled by the veto. Rhode Island was said to reliance on requisitions, called direct taxes. have the lUlion more than the whole Ifwe do not employ the Hamilton told state was worth. ,,36 After the veto, Rhode New York in February 1787, "we must find Island was the other [resources] in direct taxation."47 It was of villainy,"38 that sister. ,,39 Accord­ clear to all that direct taxes were a terrible alter­ ing to the Noah Webster, Rhode native. A January 1783 very 111 my Island was that "little detestable corner of the said with the failure of the pro- Continent.,,40 the states would need to restore federal The was considered to be the credit "the irksome Task of imme­ best federal tax. It could be collected our of and direct Taxes upon their Citizens. ,,48 a few federal customs houses located only "Direct tax" would be difficult to in the deep-water ports. A federal impost said a December 1782 the earli­ would be hard to around because est in the sample, because the "country .. , has on the federal there was only one side hitherto known a tax to guard, the Atlantic.41 Merchants who paid necessary for the support of its own the impost could pass the tax onto ,,49 did not have who had the money and were money to pay direct taxes, Governeur Morris The was the "easi­ said, and if you "[s]eize and sell their est, most just, and most productive mode of ... you them into Revolts."so raising ... revenue;" James Wilson explained, Before the Constitution, "direct tax" re­ "because it is voluntary. No man is obliged to ferred to both the requisitions upon the states consume more [imports] than he pleases, and and the taxes that the states would each buys in proportion the state to pay their quota ofa tion. The price of the wrote two letters to one Jonathan with the tax, and the person is often not sen­ Trumball within a month in I in the sible of the Since most them as "direct were from Great Britain, moreover, an impost proportioned"sl and in the would have the considerable virtue, according them as "[d]rye, forced and di­ to Madison, of injuring Great Britain 43 The rect taxes .. on the bodies ofpeople" achieved would interfere with the internal police force of a tax collector."52 of the states the least of all federal taxes.44 inventory of "direct taxes" These were also mercantilist times, and IS nothll1g but a survey of all the various under mercanti list were state taxes that would be used to an considered the bane of the economy because Direct taxes were the state taxes other than an Iredell told North Carolina that while other states have of consequence, state legislature has no way of any considerable sums but by laying direct taxes."S4 Once imposts were THE FOUR GOOD DISSENTERS IN POLLOCK 167 not available, John Dawes told Massachusetts, "our only course was, to a direct taxation,,,S5 The was called the indirect tax, and else was a direct tax,57 The was the "external" tax, "Internal tax" and "di­ rect taxes" were synonyms58 The definition of"direct taxes" originally included excises and duties, because excises and duties are not The Constitution the power to du­ ties and excises if the rates are uniform59 In the text of the Constitution, is ap­ parently a for tax, The the federal govern­ ment the power to a stamp tax, but the crises had been one of the contrib­ utory causes of the Revolutionary so the drafters wanted to avoid the term60 "Excise" originally meant the "whiskey tax,,,61 but it was expanded in New tan taxes to luxuries and 62 frivolities Excises in New England were im­ The first decision in the I ncome Tax Case was split posed not on distilled liquor, but also on 4-4 because Justice Howell Jackson (pictured) was things such billiard tables, cards, on his deathbed at home in Tennessee. Jackson man­ aged a dramatic return to Washington by train to cast of course, chocolate, his vote because he felt it was essential that the full in the it is common to Court be present to settle the issue conclusively. In his dissent, Jackson called the Court's decision to in­ find references to direct tax that explicitly validate the tax "a disastrous blow" to the power of included excises and duties, Anti-Federalist Congress. Brutus conceded that the federal government might be the authority to the im­ portant cause and of the post, but he contested federal power over called the whiskey tax a direct tax 67 and as­ "direct taxes; these include sumed that the stamp tax would have to be on written on every we apportioned.68 eat, drink, or wear."63 "Consider the Under the Constitution, however, it be­ juries] to which this country may be subjected came impossible to apportion a federal ex- by excise direct taxation of every or duty The Constitution that " commanded Anti-Federalist the Impar­ direct taxes, and duties must have tial Examiner64 but the Virginia uniform rates throughout the country A tax islature should have the power of direct taxa­ that is will have different rates in tion, said Anti-Federalist Cato "if it different states, except under the impossible should ever be found necessary to curse this condition that the item taxed is held in each land with hateful excisemen. Excise taxes state precisely in proportion to and duties were internal taxes, and slaves at three-fifths. Apportioning to the the federal government the tax uniform rates, and uniform should have only external taxes66 Excises and rates prevent apportionment. the ratifica­ duties were also direct taxes beeause they were tion debates went on, it became more common part of the of state used to sat­ to see excises and duties explicitly excluded the mostim- from the meani ng of direct tax. 69 168 JOURNAL OF SUPREME COURT HISTORY

The inclusion of excise and duties in Opll110n in Pollock read "direct tax" and the later exclusion of excises the and duties from "direct taxes" show that appor­ was a necessary element ofa direct an attack upon accu­ tax under the meaning. Excises and . from the mere force of duties were direct taxes because numbers.,,7o Ifthat were a constitutional taxes a stale might use to satisfy it should be enforced. The purpose an apportIOned but they ceased to to wealth. however, which the majority be direct taxes when the uniform-rate require­ found, turns the original intent upside down. ment made apportionment impossible. All this In all the debates, population COLI nt­ happened without any special notice, but sim­ slaves at three-fifths was understood to be ply because direct tax implicitly meant appor­ the best measure of wealth available. tioned tax. Neither the Federalist proponents of tionment was written to reach the wealth of a the Constitution nor the Anti-Federalist oppo­ state, not to exempt wealth from tax. to be a bur­ densome or hound did not bark-because the debaters on both 1. UP""J.i"o Wealth sides carried in their known definition of The Articles of Confederation set a state's direct taxes the that all direct quota under a according to the va lue taxes would be ofland and within each state.7I portionmenl was tolerated within a document, Valuation of real estate proved impossible to the Constitution, written to restore the fed­ administer, because Congress had no eral credit because apportionment on Iy applied employees and no ability to ascertain the value where it was easy and proper. Under the orig­ of real estate for itself. States thought that inal understanding, other states cheated on the that were perverse. Under the a tax submitted. Valuation of land and improve­ ceased to be a "direct tax" when it ceased to be "contentions," among the statesn to switch apportionment away from real-estate values B. The Original Function of and over to Population was con­ Mandatory Apportionment sidered to be an estimate of wealth of the The second grand historical states that could be administered feasibly tax is the question of why was on the federal level. Population was not an required. If apportionment was not intended exact measure of but it was close to kill any tax, what constitutional value did it enough, given the to do any bet­ have? The searches in the 1780s archives our ter. At the Philadelphia constitutional conven­ butterfly collection-provide a solution to this tion in 1 James Wilson that in as wei I. Apportionment had Pennsylvania. it did not make much differ­ a purpose in the Constitution: tax ence as to whether state tax was slaves to But the tax would between cities and rural counties be rare, the consensus so that appor­ tion or by valuation. Nathaniel Gorham re­ tionment would yield only a modest ported the same for Massachusetts.75 So long Once slavery ended, the as migration was not people would tion ofapportionment of tax ended. The move to wealth, it was and "the pop­ nal bargain, however, tolerated never ulation and ferti lity in any tract of country direct tax again. wilJ [always] be proportioned to each other."76 THE FOUR GOOD DISSENTERS IN POLLOCK 169

Population and wealth were considered to be be considered still a formula for determin­ fair measures of each other.77 The Justices in wealth. For many, perhaps most of the who waived apportionment when it delegates, wealth should determine votes. 84 was not knew that population func­ population to measure wealth avoided tioned within apportionment as a measure of the need to determine whether people or prop­ wealth because three of the Justices on hand erty was the source of legitimacy as to votes. 78 had so argued in the rW'fTln,,' debates. As William Samuel Johnson of Connecticut it, wealth and population were each the " but 2. Taxing Slaves these "two resolved themselves into Slaves were counted at three-fifths in the 1783 one, population being the best measure of apportionment proposal of a hard- wealth. compromise over how much slaves The apparent consensLlS in the Conven­ contributed to the wealth ofa state. For tax pur­ the three-fifths ratio for con- poses, the North argued that the slaves worked however, over a long hours and through the winter and that recurrence of the bitter on what weight woman slaves worked in the to to slaves. When the issue was not tax, slaves contributed to wealth as least as much but rather power in the the motives as free people in the North and should of North and South were reversed and the sides be counted at 100 79 The South ar­ Llsed each others' previous 86 The that the wage rate in the South was South maintained that slaves should be half that in the slaves con- counted at 100 as free workers at half value80 Counting were counted in the North 87 The North would was like counting oxen, slaves at 100 both Southern wealth and the use to which it was put. S) The difficult com­ reached first in 1783 counted slaves never agree to such encouragement to the at both sides of slave trade as would be them any better. The 1783 proposal never became a ,,88 The ad­ law. but the three-fifths formula worked out mission of slaves into the Representation, he in 1783 was into the Constitution in 1787. into the Con- comes to this: that the inhabitant of and S.c. who goes to the Coast of Africa, and in defiance of voted by nine states to two to ap­ the most sacred laws of humanity votes in the by population, tears away his fellow creatures from counting slaves at three-fifths 83 the their dearest connections & vote would have been unanimous that them to the most cruel bondages, the small states of New and Delaware shall have more votes were out for a rule giving votes to in a Govt. instituted for each state, without to population. While 89 IJI;;;'... LlIJI of the of mankind showing the consensus, the vote was not bind­ ing, because it was in the Committee of the Whole for discussion only. In the Convention, Morris proposed that not Even when votes In Con­ only votes in the but also direct gress, the 1783 tax formula should probably taxes should be counting slaves at 170 JOURNAL OF SUPREME COURT HISTORY

Revolts."n Federal power over directtaxes also proved to be the single most popular target for opponents of the proposed Constitution, so the proponents of the Constitution took the posi­ tion that the new government would rarely use them. The government would need direct taxes in case of war, but in the ordinary cases, im­ posts would probably be sufficient93 Hamilton told Vermont that if it came into the Union, the natural course of things would exempt The purpose of apportionment of direct tax was to penalize slavery; it was adopted by the Founders to Vermont in ordinary times from direct taxes erect a bridge so that North and South could reach "on account of the difficulty of exercising in compromise over votes in Congress. so extensive a country.,,94 Congress would also undoubtedly use requisitions for direct taxes, three-fifths. It was his motion that was passed instead of its own taxes, if the states would and became part of the Constitution90 With just pay their quota 95 It was not that Congress a tax on slaves, the Southern incentive to en­ was required or expected to use direct taxes, slave more Africans would be reduced. Mor­ but only that if it did apportion a tax, it would ris's motion changed votes in the North. In have to include slaves in the apportionment comparison with the four-states-to-six defeat formula. on the issue of apportionment of congressional The overall bargain that slaves determined votes (counting slaves at three-fifths) only the apportionment of both votes and direct tax was day before, with a tax on slaves, Pennsylva­ a more Southern solution than the country as nia and Maryland changed their votes from a whole would have adopted. Three Northern "no" to "yes," and Massachusetts changed its states were absent when the bargain was struck: vote from "no" to divided. The compromise Rhode Island boycotted the Convention, New counting slaves at three-fifths in both votes York stomped out when it was clear that a real and apportionment of direct passed six states national government would be proposed, and to two, with two divided 91 The purpose of ap­ New Hampshire was irregular in attendance portionment ofdirect tax was, thus, to penalize and absent on July 12 when the deal was struck. slavery. Apportionment was adopted as a slav­ The absence of three Northern states turned ery issue to erect a bridge so that North and what would have been a Northern majority of South could reach compromise over votes in seven to six (New Hampshire, Massachusetts, Congress. Rhode island, Connecticut, New York, New The penalty imposed on the South from Jersey, and Pennsylvania versus Delaware, the apportionment ofdirect taxes was expected Maryland, Virginia, North and South Carolina, to be a light one. The North had already and Georgia) into a Southern majority of six voted overvvhelmingly for apportionment of to four. It would not be unreasonable to start Congress counting slaves at three-fifths early with a pro-Northern viewpoint and consider in the convention, so it did not need much of an slaves as indicators of wealth, included in the advantage from apportionment of tax to return tax base but not properly included in determin­ to the rule. Direct taxes were also unloved. The ing votes. The Southern Congressman whose author of apportionment of direct tax, Morris, voting power was increased by slaves did not himself said that the people did not have money represent the slaves. On June II, however, to pay direct taxes and that if you "[ s jeize the Convention had voted to include slaves and sell their effects, ... you push them into in votes, but not tax, and from that baseline, THE FOUR GOOD DISSENTERS IN POLLOCK 171 the apportionment rule for direct tax is ad­ her to death, it follows the richest man on earth verse to the South. In any event, apportion­ must be '"'''''.Hn''. ment of tax in its original IS a As John Adams put it, it must be made issue. clear that the numbers of were taken in the apportionment rule "as an index of the wealth of the state and not as of 3. The and tlte Rich Man taxation.,,96 The Founders found that a tax that Apportionment should also be read as was on pauper and rich man was "ab­ to reach property, rather than exempting it, be­ horrent to the of human nature, cause the founders abhorred a rule that would "a distressful tax, which would never be require the same amount of tax per person. If ,,98 "a tax injurious to the industri­ you do not know the history, then apportion­ ous poor" (Hamilton),99 and an "odious tax" ment by population sounds like a that 100 each person must pay the same amount of tax. within the apportionment for­ That is an extraordinary rule. Under it, the pau­ mula was intended to reach rather than per must pay the same amount of tax as the to protect wealth from assault. IfNew York was richest man on and the richest man can­ wealthier than other states, then under the in­ not be asked for a dollar more than the pauper tent of the clause, New York should pay more pays. If the little :v1atch Girl is from taxes. Ifthe majority in Pollock had understood tax because taking her last dollar would freeze that the Founders intended to reach wealth by

Once the specter of Populism had passed, the Republican party accepted the income tax as a normal way to raise revenue to payoff war debts and actively supported the Sixteenth Amendment in 1913. Pictured are income-tax filers in the 19205. 172 JOURNAL OF SUPREME COURT HISTORY

tax, rather than to exempt wealth, then it would charge accepted the income tax as a normal not have been the majority. way to raise revenue to payoff the war debts. Just eighteen percent of congressional Repub­ licans opposed the Sixteenth Amendment to III. Passing of the Specter allow an income tax, and only twenty-one Looking back, Oliver Wendell Holmes, Jr. percent of Republ icans opposed the income 106 judged that Pollock was an inappropriate over­ tax in 1913 once the amendment allowed it. reaction. "Twenty years ago," he said, "a vague Senator Nelson Aldridge, leader of the conser­ terror went over the earth and the word so­ vative wing of the party, advocated the Six­ cialism began to be heard. r thought and still teenth Amendment in 1909. He described the think that fear was translated into doctrines that income tax of 1894 as a proposition advocated had no proper place in the Constitution."lol only by "Populists or by others who sympa­ There is something to that. Pollock's attorney thized with them in a desire to redistribute the Joseph Choate harangued the Court, saying wealth of the United States."I07 But in 1909, that the tax was "communistic in its purposes he could say "Not now, I tilink."lo8 Republi­ and tendencies."lo2 Justice Stephen Field an­ can Senator Jacob Gallinger had described the nounced, apocalyptically, that the income tax income tax in 1894 as "inequitable, inquisito­ was but the first step in an intense and bit­ rial, and sectional," lil9 but in 1913, he could ter war of the poor against the rich.l03 Justice announce that "] never have brought myself to Brown, a conservative RepUblican, concluded believe tbat an income tax is an unjust tax, and his dissent by saying that today I cordially give my assent to the propo­ sition that ... an income tax is a very proper [eJven the specter of social ism is con­ mode ofraising revenue."1 10 jured up to frighten [C]ongress from The four dissenters to Pollock were con­ laying taxes upon the people in pro­ servatives, by any fair measure. A biographer portion to their ability to pay them. of Justice Brown describes him as a conserva­ It is certainly a strange commentary tive, against redistribution, and an adherent of upon the constitution of the United the fundamental laws of supply and demand States and upon a democratic govern­ and social Darwinism. I I I Justice White was a ment that [C]ongress has no power to staunch opponent of government interference lay a tax which is one of the main with business and "noxious" federal tax. 112 sources of revenue of nearly every Justice Jackson is described as a centrist, not civilized state. 104 much different from the rest of the Court. I 13 Once the threat ofWilliam Jennings Bryan And Justice Harlan is described as "firmly had passed, the Republican party changed its conservative" on the "sanctity ofproperty.,,1 14 mind about the income tax. The 1894 in­ 'rhere were no Socialists, Populists, or Bryan­ come tax invalidated by Pollock had been a ites on the Pol/oele Court, even among the wise party tax, supported by Democrats but op­ dissenters. posed by seventy-four percent of congres­ sional Republicans. l05 'rhe Democratic party ENDNOTES was blamed, however, for the economic col­ lapse that started with the Panic of J 893, and *1 have previously written on Pollock in "Fixing the Con­ after the 1894 election it became a distinctly stitutional Absurdity ofthe Apportionment of Direct Tax." 21 Cons!. Commen/my 2 (2004) and "Apportionment of minority party. Eventually, Bryan and the Pop­ Direct Taxes: The Foul-up in the Core of the Constitution," ulists stopped being perceived as such a threat. 7 William & MillY Bill alRighls j I (1998). and this paper Once the specter passed, the Republicans in draws freely from those articles. THE FOUR GOOD DISSENTERS I N POLLOCK 173

Short-form cites to documentary collections

Short Cite Full Cite

Annals Annals of (Joseph Gale, ed, I History Documentary History of the Ratification of the Constitution Jensen, John P. Kaminski & 1. Saladino ed., 24 vois. Elliot's Debates Debates in the Conventions of the Several States on the Adoption of the Federal Constitution (Jonathan Elliot 1907), 5 vols. Farrand's Records Records of the Federal Constitution of 1787 (Max Farrand rev. ed. 1937),4 vols. Citations are to Madison notes unless otherwise The Federalist The Federalist (Jacob E. Cooke 1961). Dates cited are to first appearance in New York newspapers. Hamilton Papers The Papers of Alexander Hamilton C. Syrett 1961-87),27 vols. JCC Journals of the Continental 1774-1789 (Worthington C. Ford et. al. ed., I 34 vols. Letters of the Letters of Delegates to Congress, 1774-1789 H. Smith et. al. I 25 vols. Madison Papers of James Madison (William T. Hutchinson & William M.E. Rachal eds., 1962-1991), 17 vols.

IDennis v. United Stales, US. 855, 881 (1966)(Black, 5Joseph Story, 1 Commentaries on the Constitution of 1. concurring and dissenting in part) (appealing to "future the United States 956 (Thomas Cooley ed., 4th historians"). also Shepard v. United States, 544 U.S. 1873), cited by MI'. Justice Harlan, dissenting I US, 13,26115 (2005) (Souter, J.) ("It is up future to show at 661 whether the dissent is good prophesy."). 6Justice White, 158 US. 706 (saying the majority over­ 2f(oremalsu v. United Stales, 323 US 214, 248 (Jackson, turns "settled construction of the Constitution, as applied 1.) (saying that "[t]he chief restraint upon those who in I00 years practIce"); Justice Harlan, id. at 662-63 the physical forces of the country. must their (saying the given too little to srare de­ responsibility to the political judgments of their cisis and the of a century); Justice Brown, id. at poraries and to the moral Judgments of history"). 690 ("These cases, conSIstent and undeviating as they are, 3Pacijic Ins, v, Soule, 74 US, 446 (1868); and extending over nearly a century of om national Springer v. United Slates, 102 US. to me to establish canon of interpretation which also Scholey v, Rew, 90 U.S, I, (saying, in it is now too late to overthrow, or even to question."); upholding an inhentance tax, that no Congress would dare Justice Jackson, id. at 689 (saying the "m my apportion an income tax). judgment, settle conclude the question now before the 41(V/lon v. Uniled Stales, 171,174 (1796) court, contrary to the present decision"). apportionment required only when reasonable); 7157 U.S. 429 ( 1895). id at 181 (Iredell, 1.) (saying Constitution contemplated 601 (1895). no tax as direct those that could be apportioned); taxes arc not direct (see discussion iei. at 179 (Patterson, J) ("A tax on if appor­ accompanying inJlu note 69). "Excise" originally meant tioned, would be oppressive and perniciolls"): Bank whiskey tax and similar taxes to encourage morality and v. Fenno, 75 US. (8 Wall.) 546 (1870); Scholey, 90 suppress vice (see dIscussion in text accompanying infra notes 61-62), but the term was expanded after Pollock 174 JOURNAL OF SU E COURT HISTORY

to allow tax on commodity trades (Nicol v, Am"s, j 73 ascertain the wealth of the several states can be devised." U.S, 509, 19 (1899), progressive estate tax (Knowl/on Ollver Ellsworth, Speech to the Federal Convention, July

1', Moore, 178 U.S, 41. 79 (1900», tax on corporate gross I 1787, I Fan'and's Records 594. tollsworth had voted receipts (Sprt'ckels Sugar Refining CO, I', McClain. 192 the carriage tax as Senator from Connecticut. 2 Annals U.S. 413 {J 904n, and tax on corporate income (Flint 120 (June 4, 1794): iel. at 849 (March 2, 1795). I'. Slone Tracy Co" 220 US. 107, 150 (1911 »). 211n 2001, Connecticut had per capita personal income of IOS/1lI1/01l v, BU/lic Mining Co., 240 U,S. 103, 113 (1916), almost $42,000 and Mississippi had per capita personal I I See. 'Erik M, Jensen, "The Taxing Power, the income of almost $22,000. 2002 US Census Depl, Sialis­ Amendment, and the Meaning of 'Incomes, Ilea/ Abstract of/he Unlled Siules, at 426. L. J 1057 (200 I), reprinted shortened 97 note 3. (2002) (arguing that apportionment should not Harlan, 158 U.S, at 674; Justice Brown. id. avoided by judicial construction of word 6RS-89 (apportionment result Gabinet & Ronald 1. Coffey, "The Implications public would cry oul against normc Concept of Income for Corporation-Shareholder 700 (tax on commodities not common Income Tax Systems." 27 Case HI Res, L. Rel'. 926 be "utterly frivolous and absurd"); Justice White, (1977) (argutng that apportionment shareholder at 713, tax on undistributed corporate earnings); John S, 24Calvin Johnson, Righteous Anger at the Wicked "The Merit In Conformity of Tax to Financial Account­ Slates: The Meaning of tile founders' Constitution 15­ ing," 50 Taxes 761,767-69 (1972) (arguing that prepaid 39 (2005) receipts are not taxable under the Constitution); Henry 01'­ 25See id. at 154-60, dower, "Revisiting Rea!Jzation: Accretion Taxation, the 26Letter from George Washington to Thomas Jefferson, Constitution, Macomber, and Mark to Market," 13 ~a. August 31, 1788, 30 Writings of George Washington Tax Rev. I (1993) (arguing that economic improvements 82-83 (John C. Fitzpatrick'$ 193\-44). achieved while avoiding incoming cash cannot taxed 27James i'v10nroe, Debates in the Virginia Ratification Con­ constitutionally as income), vention, June 10, 1788,9 Documentary History 1109. 12SoUlit Carolina v, Baker, 485 U,S, 505 (J 28Patrick Henry, Debate in the Virginia Ratification Con­ IJ3 US. 171 (1796). vention, June 5, 1787,3 Elliot's Debates 51 14} US. at 174 29John Lansing, Debates in New Ratification 154 The Law Practice of Alexander Hamilton 30()"''}02 Convention, June 28, 1788, Elliot's Debates 371 (Julius Goebel, Jr. & Joseph H. Smith provides a catalogue of state taxes on tion ConventIon. June 16See, e,g., James Wilson, 31Calvin H, Johnsol1, venti on, July 1i, I (arguing tilat population was measure of wealth, day before apportionment of direct lax adopted by the archives and a paean to what Convention), ploiting them. 17See, e.g, William Patterson, Speech to the Federal Con­ 32Articles ofCon fed erati 011, art. VIII, 19 JCC 17 (March vention, July 9, J787, I farrand's Records 561 (obJecting 1, (781), to giving federal power over direct tax and objecting to in­ 33See, e.g, Benjamin Franklin, Draft of Articles of Con­ cluding slaves in determining congressional votes), federation, Art. VI, July 21, I JCC 196 (saying that 18See, e.g.. Samuel Chase, Speech to the Continental all charges of war and general expenses shall be "defrayed Congress, July 12, 1776,4 Letters of the Delegates 438 out of a common Treasury supplied by each Colony" by (arguing that the number of inhabitants witbin the state is taxes laid under the Laws of each Colony); John Dicken­ a "tolerably good criterion of properly" for apportionment son, Draft of Articles ofConfedcration, article 12, June 17, of tax given the difficulties of valuation), 1776,4 Letters of the Delegates 250 (similar provision), 19See, e g., James Iredell, Debate in the North Carolina 34Resolution, 1781, J JCC II Resolution, April Ratification, July 1788,4 Elliot's Debates 146 (argu­ ing in favor of giving federal power over direct taxes), 35Jolmson, Righteous Anger, supm note 24, at 27, 20EIlsworth been appointed Chief Judge and presum­ 361rvin H, Polishook, Rhode Island and the Union, 1774­ ably supped but he did not hear 1795, 3t96 (1969) " Exchange Adviser the oral (Bostol1). Feb. I, 1786). vcntion, on the that tax was 37J.K. The Selling ofthe Constitutional Con­ voted into the Constitution, Ellsworth made the mo­ (1990) Massochusells Mer­ tion that population be used the basis of apportion­ ('lilT (1787)). ment, "unti I other rule that shall more accurately ,Sid. THE FOUR GOOD DISSENTERS IN POLLOCK 175

39Letter of James Madison to Edmund Randolph, Nov. 19, Yard Philadelphia, Oct. 6, l787, 13 Documentary His­ 1782, 5 Madison Papers 289. tory 342-43 (stating that although imposts would prob­ 4oNoah Webster, "America," New York Daily Advertiser, ably be sufficient, Congress needs the power of direct Dec. I, I 787,reprinted in 15 Documentary History201 taxes within in cases of emergency, and that there 41The Federalist No. 12, at 77, Nov, 27,1787 (Alexander is no reason to fear a direct tax than an impost); Hamilton). Alexander Hamilton, Speech to the New York Ratifica­ "2James Wilson, Debates in the Pennsylvania Ratification IJon COllvention, June 1788, 2 Elliot's Debates I Convention, December 4, 1787, Elliot's Debates 467. ("Possibly, in the advancement of commerce, the imposts 4JLetter of James Madison to Thomas Jefferson, New may increase slich a degree to render direct taxes York. Dec, 9th. 24 Letters of the Delegates 576. unnecessary, "), 440liver Ellsworth, Debate in the Connecticut Ratification 58Fedcral Farmer, Letter Ill, Oct 10, 1787, Documen­ Convention, Jan. 7, 1788, Elliot's Debates 193. tary History 35-36 (asking whether it was wise to vest letter from George Washington to James Warren. internal taxes, such as poll, land, excises, and duties in the Oct. 7, 1785, Papers of George Wasbington: Confed­ federal government, and sayulg that external tax, that eration Series 299-300 (W Abbot ed., 1994), impost duty 011 imported goods, was different); "The Ad­ 46Alexander Hamilton, Notes for Second Speech of July dress and Reasons of Dissent of the Minority of the Con­ J 7, t788 to New York Ratification Convention, Hamil­ vention of the State of Pennsylvania to their Constituents," ton Papers 173, Dec. 18, 1787, 15 Documentary History 30-31 (saying 47Alexander Hamilton, Speech to New York Assembly, that "the power of direct laxillion will further apply to Feb 15, 1787,4 Hamilton Papers 89, every individual as congress may tax cattle, trades, 48Lelter of Samuel Wharton to John Cook, 6, 1783, occupations, & to any amount. and every object of internal 19 Letters of tile Delegates 551, taxa/ion"); An Old Whig, VI, Philadelphia Indep. 49Letter Robert Livingston to Frances Dana, Philadel­ Gazelleer, Nov, 24, 1787, reprinled in 14 Documentary phia, December I 1782, 6 Tile Revolutionary Diplo­ History 218 (arguing that the trlle line between the powers matic Correspondence of tbe United States 147 (Francis of Congress and the several states is between internal and Wharton ed, 1888), external taxes); Letter from Thomas Jefferson to William 50Governeur Morris, Speech to the Federal Convention, CarmichaeJ, Dec, 25, 14 Papers of Thomas Jef­ Aug, 16, 1787,2 Farrand's Records 307, ferson 385 ("Many of the opposition wish to take from SILetter of Eliphalet Dyer to Jonathan Trumbull, Sr., Congress the power of internal taxation,"), March J 8, 1783,20 Letters oftile Delegates 45 (emphasis ,,9US, Const. An, r, § 8, cL L added), 60Luther Martin, "Genuine Information VI," BaIt, Md 52Letter of Eliphalet Dyer to Jonathan Trumbull, Sr, Gazelle, Jan, 15, reprinted in I 5 Documentary ms­ 1783,20 Letters of tbe Delegates 139, tory 374, 530liver Wolcott, Jr., Direct Taxes, HK DOC NO, 100-4 61Letter from Thomas Jefferson to Sarsfield, Apr. 3,1789, (1796), I American State Papers: Class III Finance 419 15 Papers of Thomas Jefferson 25 (Julian Boyd ed" (Walter Lowrie & Matthew S1. Clarke eds" 1832), 1958) (saying that excise in New England meant only the Iredell, Debate in the North Carolina Ratification whiskey tax): Letter from Alexander Hamilton to George Convention, July 28, 1788,4 Elliot's Debates 146, Washington, Aug, 18, 1792, 12 Hamilton Papers 235 (es­ 55John Dawes, Debate in the Massachusetts Ratification pousing an excise because "[tJhere is perhaps" ,no article Convention, January 18, 1788, Elliot's Debates 41 of more general and equal consumption than [whiskey],") 56Arthur St. Clair, Description of John Jay Report, 62 The Law Practice of Alexander Hamilton at 302 1786, 23 Letters of the Delegates 482 (saYing that Span­ (describing New England excises "for the Suppression of ish impost is "indirect tax by which the Spanish Immorality, Luxury and Extravagance"), Monarch draws :vtoney from the pockets of his Subjects"); 6J"Brutus V to People of the State of New York," Nov, "Cotmecticutensis, To the People of Connecticut," Am, 27, 1787, N YJ (Dec 13, 1787), reprinted in 14 Docu­ lvfercurv, Dec. 31, I reprinled in 3 Documentary mentary History 427. History 5 ("indirecl tax[ es, meaning] duties laid upon M"The Impartial Examiner I," Virginia fndependenl those foreign articles which imported and sold among Chronicle, March 5, l788, reprinled 8 Documentary us''), History 462, Madison, Debates in the Virginia Ratification "Cato Ulicensis," Virginia Independent Chronicle, Convention, June 11, 1788, 9 Documentary History OCL 17, 1787, reprinted in 8 Documentary History 75, 1146 that the Southern will bear more of 66Federal Farmer, Letter III, OcL 10, 1787, 14 Documen­ impost because they import more, but the tary History 35-36, ity will be lessened if Congress could impose "di­ 67James Madison, Speech to the House of Representatives, rect taxes"); James Wilson, Speech the State HOllse Dec. 1790, 14 Documentary lIistory of the First 176 JOURNAL OF SUPREME COURT HISTORY

Federal Congress 189, 190 (William C. diGiacomantonio 80Be njamin Harrison (Va .), Debate in the Continental et al. eds., 1995). Congress, July 12, 1776, 4 Letters of the Delegates 440; 68Letter from James Madison to Alexander Hamilton (Nov. Edward Clarke (N.J.), Debate in the Continental Congress, 19, 1789), 12 Madison Papers 450. March 27 , 1783,25 JCC 948 (1783); Report of the North 69See, e.g., Benjamin Gale, Speech Before Killingworth Carolina Congressional Delegates to Governor Alexander Town Meeting in Connecticut (Nov. 12, 1787), 3 Docu­ Martin, March 24 , 1783,20 Letters of the Delegates 90­ mentary History 424 (arguing that they will not only tax 91. "by duties, impost, and cxcise but to levy direct taxes upon 81Samuel Chase (Md.), Debate in the Continental you" ); Robert Dawes, Speech to the Massachusetts Ratifi­ Congress, July 12, 1776,4 Letters of the Delegates 439. cation Convention (Jan. 18, 1788),2 Elliot's Debates 42 82 25 JCC 952 (April 1,1783). (arguing that it is easier for Congress to resort to impost or 83Madison's Notes on Debates in the Federal Convention, excises than to tax wholly by direct taxes); Francis Dana. June II, 1787, I Farrand's Records 20 I. Speech to the Massachusetts Ratification Convention (Jan. 84See, e.g, Rufus King, Speech in the Federal Conven­ 18, 1788), 2 Elliot's Debates 42 (arguing that Congress tion, July 6, 1787, I Farrand's Records 541 , 562 (ar­ would not levy direct taxes unless imposts and excises guing that representation should follow property because were insufficient); Resolution adopted in Massachusetts property was the primary object of society); Pierce But­ Rati fica ti on Conventi on, Feb. 7. 1788. I Elliot's Debates ler, Speech in the Federal Convention, July 6, 1787, I 322-323 (recommendin g amendment "[t)hat Congress do Farrand's Records 542 (arguing that property was the not lay direct taxes but when the moneys ari sing from the only just measure of representation because it was the impost and excise are insufficient for the public exigen­ "great object of Govern [ men)t"). cies"); Resolution adopted in South Carolina Ratification 85Willial11 Samuel Johnson, Speech to the Federal Con­ Convention, May 23, I 788, I Elliot's Debates 325 (same): vention, July 12, 1787, I Farrand's Records 593. Samuel Spencer, Debate in the North Carolina Ratifica­ 86See, e.g, Eldrige Gerry, Debate in the Federal CO Ill'en­ tion Convention, July 26, 1788, 4 Elliot's Debates 75-76 tion, June II , 1787, I Farrand's Records 201 (asking (arguing that Congress might be allowed to lay imposts " [ w )hy then shd. the blacks, who were property in the and excises, but not direct taxes). South, be in the rule of representation more than the catt le 70 157 U.S. at 583. & horses of the North"). 71Article s ofConfederation, art. VI II, 19 JCC 217 (March 87See James Madison's Notes on Debates in the Federal I , 178 1) Convention, July II , 1787, I Farrand's Records 586-88. 72 Report ofthe North Carolina Congressional Delegates to 88 Governeur Morris, Speech to the Federal Convention, Governor Alexander Martin, Mar. 24 , 1783,20 Letters of July II , 1787, I Farrand's Records 588. the Delegates 90 (North Carolina delegates complaining 89G overneur Morris, Spcech to the Federal Convention, about Pennsylvania underappraisals). Aug. 8, 1787,2 Farrand's Records 222. Morris's com­ 73See James Madison, Debates in th e Continental plaint came in the debate over banning the slave trade, Congress, Mar. 27, 1783, 25 JCC 948 ("contentions"); after the taxation of slaves in apportionment of direct tax Nathaniel Gorham, Debates in the Continental Congress, had been settled, indicating that his irritation at including Mar. 27, 1783,25 JCC 948 ("clamors" in Massachusetts, slaves in representation had not been fully assuaged by especially since the war ended); Hylton v. United States, his tax proposal. See also Rufus King, id. at 220 (stren­ 3 U.S. (3 Dall.) 171, 178 (J 796) (Patterson, .I., concur­ uously objecting to including slavery in representation if ring) (stating that unequal contributions both engendered importation of slaves were not limited). discontent and fomented "jealousy"). 90See Governeur Morris, July 12, 1787, I Farrand's 74James Wilson, Speech to the Federal Convention. July Records 592-93. II, 1787, I Farrand's Records 587- 88. 91Cornpare I Farrand's Records 588 and 597. The two 75Jd. at 587. "no" votes, New Jersey and Delaware, were plausibly hold­ 76"The Landholder, Letter Xl," Conn. Courant. Mar. 10, ing out for eq ual votes per state, which became the rule 1788, reprinted in 16 Documentary History 368. for Senate, but only later with a July 16, 1787 vote. 2 77James Madison, Speech to the Federal Convention, July Farrand's Records 15 . II, 1787,2 Farrand's Records 585. 92Gove rn eur Morris, Speech to the Federal Convention, 78See supra notes 16, 18, and 20 (Wilson, Cha se, and Aug. 16. 1787,2 Farrand's Records 307. Ellsworth arguing that population was acceptable measure 93 James Wilson, Speech in the State House Yard, Philadel­ of wealth, given difficulties of alternatives). phia, Oct. 6, 1787, 13 Documentary History 342-43. 79See. e.g. , John Adams(Mass.), Debate in the Continental 94Lelter of Alexander Hamilton to Nathaniel Chipman. Congress, July 12 . 1776,4 Letters of the Delegates 439­ September 1788,25 Letters of the Delegates 397. 40; James Wilson (Pa.), July 12, 1776, 4 Letters of the 95 Letter from Roger Sherman and Oliver Ellsworth Delegates 440. to Samuel Huntington, Governor of Connecticut, Sept. THE FOUR GOOD 01 ENTERS IN POLLOCK 177

direct tax need not be 1., dissenting), would furnish its quota); The Federalist No, V Stewart, Income Tax and the (James Madison) (Jan, 26, I (Congress Realignment of the " Realignment in American would probably allow states to supply their by their Politics: Toward a Theory 266 A. Campbell and own Richard J. Tnlhng cds" 1980) 96John Adams (Mass.), Debate in the Continental I06!d. Congress, July 12, 1776,4 Letters of the Delegates 439, 10744 Cong Rec. 1536 (1909), 07Francis Dana, Debates in Massachusetts Ratifying Con­ 108M vention, Jan, 18, 1788,2 Elliot's Debates 43, IOY26 Cong ReG'. 3893 (1894), 9SNathaniei Gorham, Debate in the Massachusetts Ratifi­ 11050 Cong Rec. 3813 (1913) Convention, Jan. 25, 1788,2 Elliot's Debates 106, : IIJack Goldfarb, "Henry Billing Brown," 2 The Justices Hamilton, Report on the Subject of Manu­ ofthe United Stales Supreme Court (Leon Fnedtnan S, J791, 10 Hamilton Papers & Fred L. Israel, 112James F. Watts, Jr, "EdWin White," The Justices of the United Stales Supreme COllrt 813, IOIOliver Wendell Holmes, Jr., "Law and Couns," II.lRobert Stanley, Edmunds Jackson," The Speech the Harvard Law School Association of New Supreme COllrt Justices: A Biographical Dictionary York, Feb. 19, 1913, repnnled in The Mind and Faith of 255 (Melvm L Urofsky, 1994) . .Jllstice Holmes 390 (Max Lerner, ed, 1943), 114Louis Filler, "John M, Harlan," 2 The Jllstices of the 102 157 U.S, at 532. United States Supreme Court 630. Chief Justice Taft and Dissents: Down with the Brandeis Briefs!

JONATHAN LURIE

Introd uction In 2007, we celebrate the 150 th anniversary of William Taft's birth, and thus it is especially appropriate to reconsider some aspects of his career and contributions to this Court, which he revered over all others. Although they may not be aware of it, any visitor to the Supreme Court and to the "Great Hall," replete with its majesty and grandeur, immediately comes into contact with an example of these contributions: the building itself. Chief Justice Taft planned for it, pushed for it, persuaded the congressional leadership of its necessity, and personally selected its architect, Cass Gilbert. As his health failed in the late I 920s, he wrote to his daughter Helen on July 27, 1927, that "[w]hat I am praying for is that r can live and be on the Court. until we move in. But that is a good deal to hope fOr."1 Indeed it was: Taft did not live even to see ground broken for the building's construction. Yet, in a very real sense, the Court's majestic home is hi s most enduring monument. This paper does not propose to dwell ex­ when he considered whom to appoint as Chief tensively on Taft's life and career, although that Justice in 19 IO. For the first time in our his­ remains remarkable in scope: trial judge, solic­ tory, a President reached within the Court to itor general, circuit judge, Governor General of appoint a sitting Justice as Chief. 3 Taft se­ the Philippines, Secretary of War, President, lected a Democrat and former Confederate sol­ professor of law (Taft declined the presidency dier, Edward D. White. One high court Jus­ of his alma mater, Yale University, because he tice, Charles Evans Hughes, wasjust too young felt that it was not yet ready to welcome a Uni­ and too healthy! On the other hand, White­ tarian who declined to accept the divinity of like Hughes, a current member of the Court­ Christ), and Chief Justice 2 Nor will it detail was seventeen years older than Hughes and a his fascinating actuarial agonies as President, dozen years older than Taft himself. Given the CHI TAFT AND DISSENTS 179 vicissitudes of time, Taft hoped against hope still resonate with scholars of today. for that he yet become Chief Justice. With his angry comments on Henry Cabot sweep in 1920, what had seemed and Woodrow Wilson as the Senate de­

'IJV0"HV'," became quite probable. And when bated and doomed American in President Harding appointed him in 192], Taft the League of Nations during 1918 and 1919. have recalled what he had said earlier Taft faulted both mcn, who continued "to exalt about the judiciary: "llove judges and 1 love their personal and the saving of their courts. are my that on earth faces above the welfare oftile country and what we shall meet hereafter in heaven under the world."!! On November 3, 1919, he wrote a just God."4 Indeed, as Chief noted that whole world has suffered one observer, he seemed to be "one of the through the bitter personal van- of the world, a Buddha, and smallness of two men, Henry Cabot sweet. and Woodrow Wilson."!2 "As between Nor will this essay much time on the and Wilson there is very little differ­ well-known fact that Taft was ence, in my estimation.,,!3 "Wilson ... has just pie in girth as well as intellect. as much of vanity and egotism and a be minimal of the many comments of the welfare and that of the world about his size. One may note, however, pcr­ as has Lodge."!4 the most famous line in Secretary ofState Or consider his candor in 1920: "I am Elihu Root's response to Taft's report from the a good deal in my of country that his health was much and for better things when I consider the and he had been able to ride on horseback for mediocre men we have to vote for this year. I some twenty miles. In reply, Root telegraphed, much prefer to Cox [the Democratic "How is the Taft's response is less presidential But [Harding] falls so well known and reflects the self-deprecating far below the standard for Presidents wc like nature of the man: "Your cable inquiry about to form in our mind that it distresses me."!5 the condition of the horse ... was too good to Or his comments on his fellow Justice James keep, so I the dispatch and have been C. probably the most obnoxious made the in the local newspa­ member ofthe Court in its entire "The pers ever since. contemporaries com­ man on the Court who is least like a mented on the kindly and nature that is McReynolds. He is ... selfish to the last de­ Taft radiated. He was, quoted one of his closest gree, an able man, but fu Iler of prejudice than Gus Karger, "America's best liked any man I have known, and one who seems and best licked ,,8 Even lusticeDavid to delight in others uncomfortable. He Brewer could not resist observing that he had has no high sense of duty. He has a continual been informed that "Taft is the politest man and. . . seems to have less of a alive. I heard that he rose in a street car to the Court than anybody.,,16 and gave his seat to three ladies. He looked, Consider also Taft's assessment of wrote another observer, "like an American bi­ former Cabinet member Root: "[H]e has not son, a kind one."IO the ofleadership that Roosevelt had­ that is, he has not the courage and the instan­ taneous grasp of situation for leadership that Roosevelt had, but his of political But beneath this exterior Taft re­ and state issues was much more trustworthy vealed insights on men and events and wise and prudent. He was a most admirable of his time-at least to those f'Af·rpo".... 'nrip·nto complement to Roosevelt in the conduct of whom he tmsted. A few samples may serve to government, and it was only after Roosevelt round out this very brief introduction, and cut himself loose from Root's influence that he 180 JOURNAL OF SUPREME COURT HISTORY

Taft was appointed Governor Gen­ eral of the Philippines protectorate by President William McKinley in 1901 after helping to ensure a smooth tran­ sition from military to civilian govern­ ment in the aftermath of the Spanish­ American War. This photograph was taken in 1903, as Taft applied his considerable administrative skills to improving the island's economy and uniting its political factions. made the really great mistakes of his Iife."17 but that he thought being run over twice by Or Taft's perceptive insight into the differ­ [an] automobile was something that a man of ences between the distinguished federal judges 92 ought to avoid. He said it was not good for Learned and Augustus Hand: "Gus is not as him."2o bright and scintillating as Learned, but he has better judgment and on the whole is the safer II better judge-but both are good ." 18 Finally, we might offer two examples of This is the man who became Chief Justice in Taft's wry sense of humor, sometimes under­ June 1921 . His tenure lasted about eight and stated but frequently evident in his correspon­ a Ilalf years. He joined a Court noted during dence. Reporting to his daughter that Mrs. Taft the term of his predecessor for its occasion­ had attended a dinner at which she sat be­ ally intense internal frictions, a tribunal on tween President Coolidge ("Silent Cal") and which outstanding jurists such as Oliver Wen­ Justice McReynolds. Taft observed: "I don't dell Holmes, Jr. and Louis D. Brandeis had sat think that their company added to the excite­ along with conservatives such as Willis Van ment of the evening."19 Or his recollection Devanter and a truly disagreeable individual , that "Major Barker, of Mobile, a solid Repub­ McReynolds. To be sure, the Court under Chief lican who stood by me in two national con­ Justice White never reached the antagonistic ventions . .. called on me for advice. He is 92. level of the Bench in an eilrlier era. According I asked him how he was, because he looked to Charles Evans Hughes, the High Court in spry and alert, and he said he was all right, "the days of Joseph Bradley and John Marshall CHI JUSTICE TAFT AND DISSENTS 181

Harlan ... was a brutal court in personal re­ upon by Senator Robert La Follette, increased. lations. I heard shook fists at Published dissents provided ammunition for one another."Z! However, after one year and in the Inid even with Taft as Chief Justice, Holmes could write '<:__U,'nA along with dissented that his new Chief "is amiable and com­ more often than any other members of the fortable . . . continues a very Taft Court-noted that "the drive the presiding officer ... [H]e carries things Court had tended to reduce dissents.,,28 A with humor and is disinclined to put cases number of Taft's Van over-so we get work done. Brandeis con­ the one remaining Justice whom curred. go happily in the Conference as President he had named to the Court­ room with " he notedJ3 with agreed with their Chief that wherever some understandable envy, Felix Frankfurter ble, dissents to be suppressed. An ex- believed that Taft had the love and af­ influential and persuasive member fection of his in spite of his extremely low Yet throughout his tenure, dissents­ output of written opinions, Van Devanter was some of them heartfelt and described by Brandeis as a "Jesuit gen­ filed, even as his fellow Justices continuously eral. . . would have been the best ofCardi­ praised his How did Taft deal with naIs. He is ... on terms with every body, dissents? How did he to, and with what knows exactly what he wants & clouds over dif­ of success did minimize their num­ ficulties by fine phrases & deft language.,,29.)O ber? These are the questions on which the re­ With some frequency, Taft sent drafts ofopin­ mainder of this essay focuses. ions to Van Devanter before he circulated them At the outset, one should remember to the other Justices. It is mtprc'ot, to that while some of the dissents in Taft's a lesser extent, Brandeis followed the same Court-·such as those from Holmes or Brandeis~are still the fact is that Although levels of among the their can be As Pro­ Justices were high in the late nineteenth cen­ fessor Robert Post noted In 200I, between tury, the first part of Taft's the 1921 Term and the 1928 more tenure were even higher. Part of the rea­ than 1,550 were handed and son for this fact lies in the extent of percent of them were unanimous. Taft's Willingness to avoid dissent. Consider contrast, Post points to the Rehnquist the fact that in eight Terms (1921-29), he wrote Court between 1993 and with a twenty­ 249 for the Court and dissented in seven-percent rate of unanimity.26 To be sure, only seventeen, with just three written dissents enactment of the Certiorari Bill in 1925­ filed. But his reluctance to dissent pre­ a measure for which Taft had every to dated his tenure as Chief Justice. In his take major reduced the num­ years as a circuit Taft attained a similar ber of cases that the Court felt compelled record: 200 opinions for the court, and only to consider. Even so, the contrast is unusual. one dissent.3! Early in his tenure as ChiefJus­ Furthermore, to a much greater extent than tice, he offered his creed on elaborate dissents. today, members of the Taft Court "felt pre­ Essentially, "are a form of sumptively obligated to Court don'tdo any and only weaken the IWf'<:t.OP even if they with their content, of the Court. It is much more important what so as to preserve the influence and prestige the Court thinks than what anyone thinks."32 of the Court.,,27 How can this be his full explained? lnnrp~~pl1 "at least In 1921, Taft took the center seat even two hundred votes," so eager was he as opposition to recent court decisions, seized "to stand by the Court ... [rather] than 182 JOURNAL OF SUPREME COURT HISTORY to record my individual dissent where it is separately ... I think that what I said was plain better to have the law certain than to have it common sense.,,40 settled either way.,,33 For Taft, Holmes' all-too-typical com­ As Chief Justice, especially in his early ments demonstrated what was wrong with dis­ years at the center seat on the Bench, Taft sents that veered from a narrow focus-such as demonstrated patience, tact, forbearance, and his in Adkins-on a legal concept such as stare flexibility in bringing his colleagues to agree­ decisis. With increasing frequency he railed ment. Aided by Van Devanter, whose frequent against Holmes, who "has more interest in, and informal conversations with his Brethren were gives more attention to, his dissents than he quite influential, Taft willingly deleted parts of does to the opinions he writes for the Court, a draft opinion, changed its wording, or more which are very short and not very helpful."41 often silently concurred. As Chief Justice, Holmes commented that his pleasure in writ­ he exemplified a trait that he had apparently ing dissents was "that you can say just what you sometimes been unable to master as President: think, and don't have to cut out phrases to suit that in some instances, to get along, one needs the squeams ofyour brethren.,,42 Taft, however, to go along. Sometimes, he would reassign an was sometimes less inclined to blame Holmes opinion to another Justice, or-as happened than Brandeis who, Taft was convinced, had the on more than one occasion-take the insights elderly jurist totally under his thumb. "Holmes of a threatened dissent and turn them into an is so completely under the control of Brother opinion that ultimately commanded the votes Brandeis that it gives to Brandeis two votes of the entire Court. Brandeis later commented instead of one."43 Indeed, Holmes' "unsound" to Frankfurter that "if it is good enough for strictures on cOllstitutionallaw resulted in large Taft. it is good enough for us, they say-and a measure from "the influence which Brandeis natural sentiment. ,,34 has had on him."44 Taft even wrote to his son When it did become necessary for Taft to Robert that if his Court had followed Holmes, dissent-as, for example, in the famous mini­ "1 don't think we would have had much of a mum wages case in 1923, Adkins v. Children S constitution to deal with.,,45 Hospila/35-he focused heavily on stare deci­ Concerning Taft's strictures, one suspects sis. He examined past decisions dealing with that he objected as much to the tone and con­ hours and wages and concluded that the no­ tent of the dissents as to their constitutional torious Lochner decision of 1905 36 had been basis. Here, he had no doubt that Brandeis "overruled sub silentio." In other words, Taft's was most responsible for this failing. From the dissent was based more upon his desire for Ballinger-Pinchot controversy during his pres­ stability and consistency than on his belief idency, Taft retained unpleasant memories of that his close friend Justice George Suther­ Brandeis's skill as an articulate and aggressive land had been mistaken in his opinion for the advocate. Taft's other close friend on the Court, Court.37 Also dissenting, but by himself, Jus­ Justice Sutherland, had similar recollections: tice Holmes had dismissed liberty of contract "My, how I detest that man's ideas, but he is as outworn "dogma," and added among other one ofthe greatest technical lawyers I have ever points that "the criterion of constitutionality seen.,,46 Now Brandeis's colleague, Taft found is not whether we believe the law to be for that dissents from Brandeis bristled with in­ the public good."38 Taft wrote of his "inabil­ sights, facts, references to law review articles, ity to agree with some general observations and-worst ofall-footnotes. Taft had no brief in the forcible opinion" of Holmes39 For his for such a format. part, Holmes later recalled that "the C] and He was not alone in pointing to Brandeis's Sanford seemed to think r had said something apparent obsession with facts and data. "Pound dangerous or too broadL] so they dissented and I agreed yesterday," wrote Harold Laski to CHIEF JUSTICE TAFT AND DISSENTS 183

Holmes, even before Taft the Court, are of a different character."so In the "that if you could hint to Brandeis case (1926),51 which Taft considered a mag­ aren't to be written in the form of a num opus on his part, Brandeis's dissent ran to it would be a great relief to the world."47 forty-one pages, observed the irritated Chief, Holmes later wrote to Laski that "in considera­ "with an enormous number notes, tion age and moral infirm ities [Brandeis 1 and with citations without number. absolved me from facts for the vacation and al­ But Chief Justice Taft saw more to fear lowed me my sport with ideas."48 from Brandeis's dissents than mere length. The way "that cuss is loaded with facts on They threatened to undermine what Post has all manners aptly described not so much as a "norm ofcon­ sensus" as "a norm of some- of facts that Taft had painstakingly nurtured. and detailed analysis of issues that went far It was based on the of the Jus­ beyond the basic out of tices that while privately with in an opinion. each to a great extent "these differ­ not avoid writing an ences should be put aside so that the Court wishes to himself as if he were can present a united front to the " one an article for the Harvard Law Review. When that presented "the of monolithic soli­ that is not on his mind, he writes a very concise so necessary to the credibility of the and very satisfactory opinion, but his dissents Justices as they rendered judgment,54 Taft's

Taft (center) as Chief Justice, Oliver Wendell Holmes (second from right, seated) wrote that the new Chief "is amiable and comfortable, .. [He] continues a very agreeable presiding officer. , . [H]e carries things along with good humor and is disinclined to put cases over-so we get work done," 184 JOURNAL SUPREME COURT H

Court, Iy in the first four years of his fundamental rights of the individual.,,62 There tenure, worked within this framework to a great were, Taft believed, "certain beyond the extent. Dissenters such as Holmes and espe­ reach of experimentation. cially Brandeis realized that "there is a limit the Court always to be aware of the danger in to the freauency with which you can one's into your colleagues.55 With he wrote in a famous dissent after Taft's some canOor, Brandeis added that _ "we would the have an case own as to which we must let our minds be bold. you do not want to on a less The Chief Justice would have tant case."56 In other a kind ofjudicial felt more comfortable with the statement of horse-trading, while perhaps not so labeled, Justice Brewer in a 1905 decision. Brewer was indeed a But beyond a certain had written on behalf of a point, the norm of fractured. seems to have included Justice Holmes-that Towards the end of Taft's tenure, Holmes "the Constitution is a written instrument. As admitted that "} do not like made to ap­ such its does not alter. That which pear as a no doubt it meant when adopted, it means now. Being have dissented more than some because r a of powers to a government, its lan­ represent a minority on some very fundamen­ guage is general; and, as come in so­ tal questions, upon which both sides should cial and political life, it embraces in its grasp be heard."5? he had commented to all new conditions which are within the scope Laski that a dissent could him a chance of the powers in terms conferred, In other to react again to an earlier ease in which he while the powers granted do not unwillingly "and some day a dis­ from generation to Brandeis wrote that in to which they are in their nature is a clear how you decide, Moreover, Taft doubtless would have con­ so long as it is settled." But in "cases involv­ curred with his predecessor Justice White, ing the Federal where correction w110, writing in dissent, conceded that through legislative action is practically impos­ "the only purpose which an elaborate dissent sible, this Court has often overruled its earlier if any, is to weaken the effect decisions."59 Further, as he anmed in a draft opinion, and thus the Constitution "is a want ofconfidence in the conclusions ofcourts As such it is capable of last resort. Towards the end ofhis m possesses the it has en­ had the dured as the fundamental law ofan ever devel­ cajole, and ,'60 Taft refused the dissent nor did he possess the doctrinal flexibility man­ unless Brandeis deleted these sentences, which ifest in the first years ofhis term. his last full he did, writing to the Chief Justice that while Taft increasingly believed that he believed very strongly in what he had writ­ . Brandeis was ten, are not necessary and I am perfectly what White had noted earlier. to omit them."61 The incident repre­ For the the dissents of Bran­ sents an excellent examole of Post's norm of deis and Holmes in the famous Olmstead wire­ tapping case of 1928 proved the point In a case Brandeis believed and dealing with enforcement of the and parcel of constitutional inter­ laws, Taft wire-tapping by the Govern­ Taft was not so sure, what ment by a 5-4 vote, holding that that the central Post deseribes "as experimentation with the issue before the Court was simply the CHIEF JUSTICE TAFT AND DISSENTS 185

Five years into his eight-year Term as Chief Justice, Taft had already managed to foster a norm of consensus and reduce the number of dissents. Critical dissents by Brandeis (seated at right) threatened this harmony, however, and Taft grew increasingly irritated when Brandeis stuffed so many facts into his opinions that they resembled briefs.

of the practice, rather than the unsavory ethics crime against state law than when to involved in its application.67 As he wrote to the disregard of its own."69 his youngest son even before the decision was fn his dissent, Brandeis went into the "it has been a hard case to decide, ethics of It mattered not "that will doubtless awaken con­ the intmsion was in aid of law enforcement. demnation, but, .. I am strongly convinced it Experience should teach us to be most on is according to law. our to when the gov­ In a brief Holmes had written of ernment's purposes are beneficent. Men born two choices: one, detecting the criminals, and to freedom are naturally alert to repel inva­ two, that the government "should not itselffos­ sion of their liberty by evil-minded rulers. The ter and pay for other crimes when are greatest to liberty lurk in insidious the means by which the evidence is to be ob­ encroachment men of zeal. tained." For this eighty-eight-year-old but without understanding.,,7o Brandeis ended the case did not a difficult issue, "and his dissent with what Taft conceded to be elo­ for my part, 1 think it a Jess evil that some crim­ but condemned as regarding inals should escape than that the am;pnnmpnt an issue that was not before the Court: "fn a should play an part. ... f hardly think," government of laws, existence of the govern­ he "that the United States would appear ment will be if it fails to observe to greater advantage when for an odious the law Our government is the 186 JOURNAL OF SUPREME COURT HISTORY potent, the teacher. For good or a few months before he "that Hoover is a for ill, it teaches the whole people by its ex­ just as Stone and just as Bran­ If the o"vprnrYlPn deis is and just as Holmes is." "I don't becomes a think Hoover knows as much as he thinks he law; it invites every man to become a law unto does." But Taft was disillusioned himself; it invites To declare that in he had been the administration of the criminal law the end on the Court for only a few years, now "hungers justifies the means-to declare that the gov­ for the applause of the law-school ernment may commit crimes in order to secure and the admirers of Holmes. the conviction of a criminal--would More than Taft's illness and the resulting bring terrible retribution. Against that to nurture and encourage the norm cious doctrine this court should resolutely set ofacquiescence contributed to its decl ine. The its face."71 Chief Justice may not have comprehended the Having supposedly agreed to limit his dis­ of sent to the legal law as a continually Brandeis went "When we By the 1930s, the Brandeisian make a limitation we view oflaw was in the ascendant. Justices who think anyone would have done so but the law­ have subscribed to the less member of our Court. Even more galling norm or acqUIescence could now view a dissent to Taft was the fact that Brandeis had per­ in a more significant light as Charles Evans suaded Holmes to his original vote and put it, as "an appeal to the brooding dissent.72 "They went on principles spirit of the law, to the intelligence of a future completely unsustained bv the great mass of precedent," with Holmes reet the error into which the

to moral- believes the court to have been hptr"""ri Brandeis in his final para­ Post Doints to a growing call for flexibil­ to have to be held up as immoral by one who is full of tricks all the usual norms of "stability and firmness." the time."n If the norm of acquiescence broke down Far from pushing the norm of acquies­ as the Taft Court passed into history, the fact cence, in his last full year on the Court, Taft that it was in vogue for most of Taft's tenure the more mundane chal sim­ as Chief Justice is due, I think, not only to his of keeping a majority of his court so as traits mentioned but also to his unique to the Bolsheviki from con­ of his role as the Chief. troL He had no doubt as to their The tus Hand was not inaccurate when he wrote group included who "is of course to Taft late in 1929 that "[yJou have a certain Ilo[)el<:ss, as Holmes and a<; Stone is." All leadership in the Court that is enormously im­ Taft could hope for was that this "dissenting portantLl and I don't believe has ever existed of three" could be blocked with "our since the of Marshall himself With six to the Court" With any luck, the fu­ only a few months left to live, Taft ture would see the "continued life ofthe present enjoyed compared with John MarshalL .. to prevent disastrous reversals He harbored no illusion that his of our attitudes."74 Nor did Taft ions would ever receive the historical any reliance on President Hoover, even not afforded Marshall's great pro­ the age and health of several of the Justices nouncements. But he understood that Hand made new appointments to the Court a vir­ was notto hisjudicial craftsmanship, tual certaintv. "The truth is," he only but rather to his judicial leadership. CHIEF JUSTICE TAFT AND DISSENTS 187

Chief Justice Taft (third from left) and the Associate Justices admire architect Cass Gilbert's model for the new Supreme Court building in 1929. Taft not only persuaded Congress to fund the building, which would give the Supreme Court its own home for the first time, but also oversaw its planning. Sadly, he died before ground was broken.

In retrospect, Hand was correct. No other ages. It would lose its great character and be­ Chief not even has ever ac­ come feeble, if it were allowed to become complished what Taft did in the encrusted with narrow notions that ,,78 court-and this in barely years, not dominated the thinking of one oprlf'r>.h like Marshall's thirty four. It is in this context Has the norm passed, and that Taft's of the norm of has what Taft dreaded now become common­ cence should be seen and understood. Cer­ In at least one instance-the Brown v. tainly the modern Court still with Board o/Education case in 195479 -the fourth the place of dissent-an inherent component Justice to hold the center seat after Ear] of its function, and very much with us. Bran- Warren, used the techniques honed his pre­ deis's successor, Justiee William decessor to advantage to aid in arriving whom Post interestingly calls "perhaps the at an opinion that garnered nine votes. While, most consummate dissenter in the history of more than half a century later, there is some the Court"-]aid out the spin on criticism of Brown, no one will that its the norm of "For it is the Con­ was a great factor in whatever suc­ stitution which we have sworn to not cess it has enjoyed. 78 Nurturing a norm ofjudi­ some predecessor's of it ... The cial is not much in vogue today, Constitution was written for all time and all and indeed the tensions between the quest for 188 JOURNAL OF SUPR E COURT HI

legal certainty and the yearning for change can 14Ibid., December 7,1919. never be permanently resolved. The judicial IS/bid., August 23,1920, environment in which Taft functioned is long 16June 11, 1923, Manning Papers. Taft was, appar­ ently, very accurate in this assessment. also Al­ gone. But if we would know where we are, it is bert Lawrence, "Biased Justice: James McReynolds essential to know where we have been. Every of the Supreme Court the United " 30 Jour­ Chief Justice since Taft-and as of 2007 there nal of Supreme Court HistOf), 244-70 (2005). In 1926, have been seven of them-has had the oppor­ McReynolds wrote to Justice Harlan Stone, objecting to tunity to run that office with the tools and ad­ the time for a proposed Court photograph, "Do your ministrative accomplishments he left behind. spavined tellm out at an earlier hour." May 10, 1926, Har­ lan Fiske Stone Papers, Library of Congress. the Taft Court and the man him­ J7January 10, 1926. Manning Papers. self are the subjects of ongoing scholarly re­ "Ibid., June !927. Taft '5 commentsreflected the search. his tenure as ChiefJustice, well known in legal circles during the 1920s; that one one must consider the total picture: the man should quote Learned, but follow and his both administrative 19Ibid., January 17, 1926. "O/bid., October 1927. and as well as the decisions he llSee Jonathan Lurie, "Mr. Justice Bradley: wrote on behalf of the Court. Not menl," 16 Selon Hall Law Review 343, 374 (1986). one suspects that the result will be a mixed 22M ark D. Howe, ed. and Alger Hiss, abr., Holmes-Laski But for a former President who loved the law Letters: The Correspondence of Justice Oliver Wen­ and oroudlv confessed that "I love iudges and dell Holmes and Harold J. Laski. vol. I (New I love courts," Taft's of administrative Atheneum, 1963),424,339. 23Mdvin 1. Urofsky. "The Brandeis-Frankfurter Conver­ on the Court remains sations," 7 The Supreme Court Review 322 (1985). 24Post, "Prologue," 25. 25Landmark statements such as those in Gillow, Whil­ ney, and Olmstead immediately come to mind. Gillow

New York, 268 U.S. 652 (1925); Whitney l'. Cali/omia, I Helen Taft Manning Papers, Library of Congress. 274 US. 357 (1927); Olmslead v. Uniled Slates, 277 US. 2Taft's career as a whole wi II be in my forthcom­ 438 (1928). Strictly speaking, Brandeis and Holmes did ing biography. William Howard Taft and the Travails of not dissent in Whill1ey, as the opinion was unanimous. a Progressive Conservative. But Brandeis's statement was so critical of the Court's 3lt has happened only twice reasoning that in many ways it may be described as a 4Judith Anderson. William Howard Taft: An Inti­ dissent. See infra text accompanying notes 68 and 69 mate History (New York: w.w. Norton & Co., 1981). for further comments concerning Brandeis's dissent in 259. Olmstead. SINd 26Robert Post, "The Supreme Court Opinion as Institu­ 6QUOI(!d in Henry E Pringle, The Life and Times of tional Practice: Dissent, Legal Scholarship, and Decision­ William Howard Taft, vol. I (New York: Holt, Rinehart making in the Taft Court," 85 Minneso/a Law Review and Winston, 1939), 236. 1267,1283 (2001). 7Taft to Elihu Root, May 13, 1903, in Root Papers, Library 1274. of Congress, 1318. 'Gustave 1. Karger Papers, box I, folder 4, Cincinnati His­ 29lbid. torical Society. JIJUrofsky, 310. Van Devanter, added Brandeis, "is always 9Pringle, voL I, 334. helpful to everybody." IORobert Post, unpublished essay, "Prologue: Mr. Taft Thomas Mason, William Howard Taft: Takes Charge," p. 3, quoting William Allen White. I am Chief Justice (New York: Simon and Schuster, 1965). greatly indebted to Professor Post. the the Taft Court, for his kindness and """<'rmirv Court Opinion," 131 available to me much of his own Comt II Pringle, vol. 2, 949.

12November 3, 1919, Karger Papers. 1(; I U.S. (1905). IJlbid., November I 1,1919. 37Mason, 251. CHIEF JUSTICE TAFT AND DISSENTS 189

J8Adkins, 26 1 U.S . at 570 (Holmes, J. , dissenti ng). 68Taft to Charles Taft, June 21, 1928 , Charles Taft Papers, 39 Adkins, 26 1 U.S. at 567. Library of Congress. 40 Holmes-Las ki Letters, 356. 690lmslead, 277 U.S. at 470. 4lPost, "Supreme Court Opinion," 1292. 70Ibid.. 478-79. 4Zlbid. 71 Ibid. , 485. 4J Maso n, 22 0. 72 ln an earlier case, Brandeis had argued that the "Govern­ 44 Ibid. ment may not provoke or create a crime and then puni sh 45 1bid. the criminal, its creature." Brandeis dissented from the 46Phi lippa Strum, Louis D, Brandeis: Justice for the majority opini on by Holmes, whic h sus tained the govern­ People (Ca mbridge, MA : Harva rd Universi ty Press), ment's ac ti ons. Pe rhaps, as Taft impli ed, by the time of 302. Olmslead, Brandeis had persuaded Holmes that he wa s 47 Holmes- Laski Letters, 93. wron g. See Strum , p. 323 . 48 /bid. , 212 . 7J Mason , 228. 49Jbid., 353. 74 Ibid. , 294. 50Mason, 226. 75 Ibid.. 228 . Taft fo und Stone's apparent defect io n to the 51272 U.S. 52 (1926). Holmes-Brandeis view especiall y frustrat ing because he 52 lbid. had been a vigorous supporter of Stone's nomination. In­ 5JPost, "Supreme Court Opinion," 1344. deed, he even claimed much of the credit for Coolidge's 54 Ibid. decision to appoint Stone in [925. Stone, incide ntal ly, wa s 55 Ibid., 1345. the first judicia l nominee to appear before the Senate Ju­ 56Jbid. diciary Committee. 57Ibid., 134 4. 76 Post, "Supreme Co urt Opi nion," 1353. 58Holmes- Las ki Letters, 314. 77 Robert Post , "Judicial Management and Judicial Di s­ 5y post, "Supreme Cou rt Opinion," 135 1. interest: The Achievements and Peril s of Chi ef Justi ce 6OPost, "Supreme Cou rt Opinion," J352. William Howard Taft ," 23 Journal o/Supreme COli I'I His­ 61/bid. , 1353. lory 53 ( [ 998). (,Z lbid. 7S Post , "Supreme Court Opinion," 13 55. 6J Maso n, 293. 79 347 U.S. 483 ( 1954). 64NewSlaleiceCo., v. Liebman, 285 U.S. 262, 3 11 ( 1932). 800ne of the most interesting, provocative, and persuasive 65SoUlh Carolina v. United Siales, 199 U.S. 437,448-49 re-eva luations ofBrown is found in Derri ck Bell 's analysis, (J 905). Silent Covenants: BrowlI v. Board o/Edllcatioll and the 66 Post, "Su preme Cou rt Opinion," 1348 . Unfulfilled Hopes for Racial Reform (New York : Oxford 670lmsleod v. United Slales, 277 U.S. 438 (1928). University Press, 2004). The Judicial Bookshelf

D. GRIER STEPHENSON,

Citizens, elected officials, and scholars, and most readers ofthis the US. Supreme Court: that an abundance of literature in print form exists about this capstone institution of the third branch of one has only to conduct an online search in even a modest-sized or at one ofthe Internet-based bookstores to reveal hundreds of titles on virtuallv every aspect of the Court's work as well as the Justices who have sat on its Bench. Yet in contrast to this present-day cornu­ revealing. While it had been apparent copia ofperspective and information the fact since Marshall's that the Court was a that, with barely a handful of politically--not a tematic study of the Court institution, it had become of a century ago, as history, by the second decade of the twentieth cen­ science emerged as distinct proressIOnal aca­ tury (if any doubters that the Court demic Some readers may be sur­ had moved well beyond its initial dispute­ prised to learn that the first edition of so es­ resolution role and had become a maker of sential a mainstay of judicial history-­ public policy for uniform application across particularly for the the nation. Indeed, as Warren noted in the Court--as Charles Warren '5 The Supreme 1926 revised edition of The SUDreme Court Court in United States was not in United States his objective was to published until 1922. Warren's three-volume provide "a narrative ofa section ofour National itself a scant six years after history connected with the Court ... Senator Albert 1. four As words are but 'the skin ofa volumes ofThe Life ofJohn Marshall2 This so law cases as appear in the law reports was also about the same time that Edward S. are but the dry bones of very vital po­ Corwin to his seminal studies have lost of the origins of iudicial review3 The tim­ of the works of all three authors was an attempt to cases THE JUDICIAL BOOKSH 191 decided the Court itselffrom year to year in Justice to die in and has been routine its contemporary ,,4 the for each of his successors. "That he should de­ books of his day, Warren lamented the fact that velop any was not to "few published works" existed for "those who be expectation wish to view the Court and its decided cases, was not disappointed," remarked the American as living elements and factors in the Law Review soon after Chief Justice Morri­ course of the history of the United States," son Waite's death in March 1888. "Certain it is Aside from biography ofMarshall, that he left no great memorials of his there was little besides Gustavus His- as a the intluential journal continued. of the United States Supreme much in favor of the char­ which Warren described as written "from a acter of Chief Justice Waite to say that he was purely Socialistic perspective."s able to avoid the of any great deficien­ Of course, the deficiencies in the litera­ cies as a lawyer while occupying the seat of ture that Warren noted have long since been Chief Justice,"7 Because Waite was so corrected. While it would clearly be a colos­ identified with the decisions of his Court, the (and an to insist that faint ofthis "it-could-have-been-worse" on the Court can be traced appraisal would seem to be as much a commen­ it does not seem an excessive tary on the Court as a whole as it was on its overstatement to that Warren inspired late much of what followed. Historians, assessments and and students of in subsequent years substantial treatments in law reviews of both have to understand what the Court has Chief and Court became once done, not because of a client-centered neces­ the literature on the Court ex- sity to win cases, but because of the reason­ in the twentieth century. centered desire to comprehend the Court, as finds studies such as Samuel 1. Warren did, as a component in the political sys­ Chief Justice Stone and the Supreme tem and a force in the nation, More­ which was published in the year of Stone's over, have endeavored to move death (I The Burger Court by Vincent or beneath the "what" also to ex­ Bernard Schwartz's The plain decisions: that to probe the Bernard Schwartz's The Warren "why" as well. This double-barreled thrust ac­ The Warren Court in American PoJitics counts for much of the multidisciplinary char­ L.A. Jf.. Likewise, one would have ex­ acter of judicial studies today, The result of pected of the Rehn­ these labors has been a vast body that quist Court (1986-2005) to follow Rehnquist's into at least five groups: consti­ Chief Justiceship. After all, he was only the and period his­ third Chief to have been selected from the tory, or Justice-centered analyses, ranks ofsitting Associate Jlist ices, and his long case studies, and the process. Recent tenure ranked him fourth on the all-time list of books on the Court illustrate several of Chiefs, behind Marshall, B. Taney, and Melville W Fuller. At least one volume had Chief Justice William Rehn­ been part of the literature since 2000,9 and two quist's death in early 2005, there additional books were published within a year were probably few who were to find of his death. Indeed a third book arrived just instant evaluations of his Chief Justice­ as work on this review essay was com­ in the press. Such commentary, both pos­ pletion in 2007,10 itive and on Chiefs Edited former law clerk in 1835 with John Marshall, the first Chief M. Bradley of the Indiana University 192 JOURNAL OF SUPREME COURT HISTORY

Law School in Bloomington, The Rehnquist ond with the workings of the Court itself. Both Legacyll is a collection of eighteen essays by implicate leadership, a subject that is better as many authors examining various elements understood in the judicial context when one of the jurisprudential record of the Rehnquist recalls that the Chief Justice is primus inter Court, ranging from federalism and freedom pares-first among equals. 17 Yet, as the ad­ of speech to criminal justice and the right to ministrative head of the Court, the Chief Jus­ die. Besides an introductory chapter, the editor tice is officially "in charge" with respect to the contributed one ofthe essays. The "Foreword" eight Associate Justices only in a very limited is the handiwork of Linda Greenhouse of the sense. Reality reflects more the pares than the New York Times. In Bradley's view, the essays primus. While the Chief traditionally controls present a "legal biography" of Chief Justice the assignment of opinions, even that power Rehnquist in that they attempt to assess his applies only when he is in the majority. More­ legacy by analyzing his majority and dissent­ over, his vote in deciding cases is worth no ing opinions "in those areas of constitutional more than the vote of any of his colleagues. law in which Rehnquist is thought to have had Similarly, the Associate Justices are not ac­ the greatest impact."12 The book thus omits countable to the Chief Justice. They do not treatment of many legal topics on which Rehn­ work "for" him. There is no chain of com­ quist authored opinions, including even capi­ mand on the Bench. The Supreme Court is no tal punishment. "[W]hile on the winning side well-oiled machine, but rather seems to con­ of the battle over the constitutional ity of the sist of nine little law firms where each Justice death penalty," Rehnquist "did not author ma­ "is his own sovereign."18 A right to preside jor decisions" 13 on the subject and then found does not carry with it a right to prevail. Nor himselfon the losing side ofsome of the recent does it entitle a Chief to influence over "his" noteworthy rulings thereon, including cases af­ Court. "Being Chief Justice," as Justice Har­ fecting the death penalty for juveniles and the lan F. Stone is supposed to have laconically re­ retarded. 14 Thus, for Bradley, capital punish­ marked after observing William Howard Taft ment, though a WOJihy topic for discussion had at work for five years, "is a good deal like be­ space permitted, should not properly be con­ ing Dean of the law school-he does what the sidered a part of the Chief Justice's legacy. janitor is unable or unwilling to do."19 Nonetheless, in his introduction, Bradley does Nonetheless, even without the usual ac­ portray Rehnquist on a subject closely tied couterments of power, some Chief Justices to the death penalty, which was very much have been known as Court leaders. When ex­ part of the record of a Court that succeeded amined in the context of a small group such as in a "nearly complete reversal of the War­ the Supreme Court, leadership has both task ren Court's habeas corpus expansions [that] and social dimensions. Someone who excels severely restricted the opportunities for state in social leadership relieves tensions, encour­ criminal defendants to litigate violations of ages solidarity and agreement, attends to the their rights in federal court."J5 emotional needs ofcolleagues, and is often the Bradley suggests that Rehnquist's legacy best-liked member of the Bench20 And within be considered alongside two goals Rehnquist in the idea of task leadership are manage­ set for himself. The first was to "'call to a halt'" rial and intellectual considerations.21 A Chief some of the Warren Court rulings on criminal Justice as managerial leader keeps the Court justice. The second was to be "remembered as abreast of its docket, maintains a maximum a good administrator" by running a "relatively degree of Court unity, provides expeditious smoothly fUllctioning Court."16 The first deals direction of the judicial conference, and as­ with jurisprudence and public policy, the sec­ signs opinions thoughtfully and purposefully. THE JUDICIAL BOOKSH 193

As intellectual leader, a ChiefJustice presents on a case, Rehnquist could be very his views and is a source in a conclusion but was disinclined of ideas and doctrine. If one these cri­ toward "politicking his fellow Justices, pre­ teria to Bradley's Rehnquist can be ferring to confine his arguments to the logic said to have excelled at social leadership, to of the opinion he drafted. have superbly as Court manager, carried risks of back-firing, as and to have provided intel­ to have when Chief Justice lectual Warren drove "his fellow Minnesotan Rehnquist's skills as Harry Blackmun into the arms of were acknowledged even by his op­ the liberals. Neither was the Bench over on the Court," writes Bradley. "Thur­ which Rehnquist necessarily one that good Marshall deemed him a Chief would have been amenable to being Justice,' and Justice William Brennan de­ or wooed by the center chair. It was a Bench scribed him as 'the most all-around suc­ packed with talent. No one was in need oftutor­ cessful' chief he had known-including Earl ing on federal constitutional "as Chief Warren.,,22 attributes this success to Justice Warren is alleged to have done with personality, to fairness and pur­ Justice [William Brennan. "Had Rehn­ in assigning and to the tried to twist the arms of these discipline Rehnquist applied both during oral dent thinkers, he In arguments and in conference. In both he his status as a Chief Justice whose ran a "tight ship."23 In the latter, for "''''CUll,'''", written views were highly by his while allowing each Justice to state her or his colleagues. And those views derived from views in order of he "did not al­ three principles: "strict construction, low debate among the of the and federaJism."29 As then-Justice opinion explained in 1976, "It is almost im­ their minds, extended discussion was a waste possible. , , to conclude that the [Founding Fa­ of time."24 Outside of conference, as for lead- thers] intended the Constitution itself to sug­ his colleagues toward his own point ofview gest answers to the manifold that

Craig M. Bradley, a for­ mer Rehnquist clerk who now teaches at the I ndi­ ana University Law School in Bloomington, has edited a collection of essays titled The Rehnquist Legacy that examine how the Chief Jus­ tice accomplished his two main goals: to roll back what he believed were some of the excesses of the Warren Court, and to be a good ad­ ministrator. 194 JOURNAL SUPREME COURT HI they knew would confront succeeding gener­ ofWestern University.J9 Twelve vol­ ations. The Constitution that they drafted was umes on as many Chief have ap­ intended to endure indefinitely, but the rea­ peared to date.4o Still to be are those son for this well-founded hooe was the gen­ on the Court and the Marshall eral which national authority was Court. to Congress and the Presidency. These Like the other books in the Handbooks two branches were to provide the motive power volume adheres to a for­ within the federal which was in turn mat of two Part one con­ to coexist with the state governments; the el­ tains four substantive that examine: ements of a con­ (I) the Court in the context ofits times, includ­ stituency were looked to for the solution of the the circumstances the numerous and varied that the future ment of each Justice who served would bring."3o In other words, power particular period; (2) the individual Justices in the people through the elected not terms of their backgrounds and jurisprudence; with the courts. The Constitution did not make decisions; and the Court's "this Court (or the federal courts and impact. Drawing from a into a council of revision. and the Framers Court data set developed Pro­ "did not confer on this Court any authority to fessor Harold Soaeth of Michigan State Uni­ state laws which were felt to versity, part one is also rich in its be inimical to the Court's notion of the public presentation of decisions and patterns. interest."31 Part two, which consumes about one-quarter As effective an advocate as Rehnquist of the book, includes a of useful refer­ was, the Rehnquist Court still rendered ence materials that relate to personalities, such as homosex­ decisions, and events addressed in part school prayer, and one. affirmative from which While of obvious value to the academic Rehnquist and decisions where he community and the lost the votes of some co-Republicans Rehnquist Court, like entries in the on the Bench. Yet to blame these defeats is intended to reach a wider and more and/or defections on failures in audience as well. This seems would be "misguided," beneficially to distinguish the Court beJieves. 36 While no one knows how the Rehn­ Handbooks series from two others. The tomes legacy will fare in the published so far in the Holmes Devise History under Chief Justice John Supreme Court United States are seems convinced that it is "unlikely to be truly treasures for the expert but are hardly diminished."J7 written for the novice and pose a The Rehnquist Court by Kent State Uni­ political scientist Thomas R. recently conceived with Kathleen Hale of Auburn and United States Supreme under the gen­ Carl Snook ofMichigan State University listed eral editorship ofHerbert A. Johnson, is more as authors, is the second appraisal accessible-and modest in the of the late Chief Justice's tenure to have been Holmes Devise series and seems more com­ pubJ ished in 2006. It is also the most recent prehensive than the Handbooks series in terms Sunreme Court Handbooks series of the number of legal issues addressed.41 under the editor- The Handbooks in contrast, scientist Peter G. Renstrom a sharper focus on selected issues and a THE JUDICIAL BOOKSHELF 195 greater emphasis on individuals, context, and good Marshall respectively, were similarly impact. motivated 43 Despite these efforts by Repub­ Similar to Bradley's volume on the Rehn­ lican Presidents beginning with Nixon in quist legacy, the organizing question for Hens­ 1969, however, a consensus exists today that ley's study is "whether the US. Supreme Court the Court under Warren Burger (1969-1986) under the leadership of William Rehnquist en­ did not engage in a "conservative consti­ gaged in a conservative constitutional counter­ tutional revolution."44 Ironically, the Burger revolution by creating major new precedents Court unexpectedly engaged in its own vari­ supporting the government against claims of ety ofactivism, which, in certain categories­ individuals that their civil rights and liber­ privacy and abortion, establishment of reli­ ties had been violated.,,42 For anyone familiar gion, and gender discrimination-went well with the Court's history during the past four beyond Warren Court landmarks. Hence, given decades, Hensley's is an obvious question to the additional opportunities Republican Pres­ pose. Rehnquist's own nomination as Asso­ idents enjoyed to reshape the Bench after ciate Justice to fill the vacancy occasioned by Rehnquist became Chief Justice, the natu­ the retirement of Justice John Harlan in 1971 ral query is whether the Rehnquist Court followed assurances by presidential candidate (1986-2005) managed to accomplish the ju­ Richard Nixon in 1968 that he would build a risprudential change that eluded the Burger Supreme Court very much unlike the Warren Court. Court, then in its twilight years. As cxplained Hensley's answer is consistent with later in this essay, the Warren Court had be­ Bradley's and should give pause to any future come an election issue because of a series of President who believes that she or he may reori­ rulings between 1953 and 1968, particularly in ent the Supreme Court through discerning ap­ the arena ofcriminal justice, that had roi led the pointments. Rather than shifting constitutional political system-rulings that left virtually no law in a decidedly conservative direction, the aspect of life in America untouched. findings of The Rehnquist Court are that As events unfolded, Nixon was able to there was more continuity than change dur­ make four appointments to the Court during ing the Rehnquist years. While there was some his abbreviated presidency, each with the same movement in a conservative direction, those objective in mind. Aside from Rehnquist's changes were "moderately rather than radically appointment, there were Warren Burger's as conservative."45 Indeed, the Bench "created Chief Justice in 1969, Harry Blackmun's in several new liberal precedents that may prove 1970, and Lewis Powell's in 1971. President to be the most important legacy of the Rehn­ Gerald Ford named John Paul Stevens to take quist Court.,,46 Moreover, if one places the the place of liberal Justice William O. Douglas Rehnquist Court alongside the Burger Court, a in 1975. President Ronald Reagan's selection remarkably similar picture emerges. First, data of Sandra Day O'Connor in 1980, of An­ "show identical records in regard to civil rights tonin Scalia in 1986, of Rehnquist as Chief and liberties cases, with both Courts voting Justice in 1986, and of Anthony Kennedy 1iberally in 44 percent of the cases."47 Sec­ in 1988 particularly stemmed from a much ond just as the Burger Court refrained from publicized objective to advance a conserva­ overturning outright any decision of the War­ tive social agenda through judicial appoint­ ren Court, so the Rehnquist Court declined to ments. President George H.W. Bush's ap­ overturn any "major" Warren or Burger Court pointments of David Souter and Clarence decision,48 although both Courts made some­ Thomas in 1989 and 1990, to replace de­ times significant modifications to decisions by parted liberals William J. Brennan and Thur­ their predecessors49 196 JOU RNAL OF SUPREME COURT HISTORY

Two noteworthy books about Supreme Court clerks were published in 2006: Sorcerers' Apprentices, by political scientists Artemus Ward of Northern Illinois University and David Weiden of Illinois State University, and Courtiers of the Marble Palace, by political scientist Todd C. Peppers of Roanoke College. Pictured is Thomas Russell , the very first Supreme Court law clerk (to Horace Gray), in full curling regalia.

As to why shifts in constitutional law were ting President50 since Thomas lefferson 51 has nol more substantial, Hensley offers severa l encbuntered: judicial surprises. The positions possible explanations. The first is a phe­ taken in cases by a President's picks for Ihe nomenon Ihal virtually every Justice-appoin- Bench are someti mes substantia ll y at odds JUDICIAL BOOKSHELF 197 with presidential calculations. A Justice turns tice were former Court clerks. Justice out to be more liberal or conservative than was Stevens clerked for Justice Rutledge, Moreover, the effects ofsuch excur­ and Justice Stephen sions off the reservation are when clerk to Justice Arthur J. the Bench is already closely or when Felix Frankfurter not been reluctant to "hire a the membership of the Court is unusually sta­ woman" when her at Harvard Law ble for a relatively long period of both School had recommended her to Frankfurter of which situations in 1960;55 Justice Ruth Bader Ginsburg might the years. As a second well be on the list of former Court vacancies occurred after 992 clerks too. the Clinton Yet, even the of law the long-running series clerks at the long been ments that offered at least the a matter of the nature and more additional conservative extent of their role have not. As an ele­ the Court, in Hensley's assessment, "has his­ ment in the process the clerkship torically been in line with the views of the institution at the Court~what Justice Dou­ American public, and public opinion during glas once referred to as the "junior Supreme the Rehnquist era favored moderate policies been largely uncharted ter­ regarding the contentious issues the na­ ritory. because of the confidential­ tion," although the author does not explain why ity that accompanies a clerkship, this link between and say that as far as publicity is con- the instimtion is forbidden as well. principle of stare thus reducing the Ironically, it was Rehnquist himself likelihood that rulings would be as a young attorney in the 1950s, helped to pushed aside. the Court "felt turn one of the first spotlights on the need to rein in conservative lower-court at the Court. In a nationally circu­ judges who were to engage in radical lated he that the clerks had change in constimtional law." Yet the record too much influence and perhaps a ofthe Court does not determine the liberal bias into judicial decision 57 future for other Courts and other Justices, as The ignited by Rehnquist's arti­ the "battles of the culture wars continue to cle continued after he joined the Court with rage."54 of The Brethren by When President Bush named Bob Woodward and Scott in 1979 Roberts to the following the and Closed Chambers (I Edward death of Chief Justice Rehnquist, one a former clerk to Justice Blackmun. of background information that surfaced al­ With varying emphases and both most about the nominee was that books claimed that the clerks wielded too Roberts had once been a law clerk to Rehn­ much power within the Court, nei­ quist. With Court clerkships ther volume was scholarly in making among the most sought-after positions for re- its claims.59 In a class by itself remains The from the best law that Memoir of John Knox: A Year in Roberts among very select the Life of a Supreme Court Clerk in FDR's company. Rehnquist himself had once Washington (2002)60 This account of Knox '5 clerked for Justice Robert H. Jackson. More­ clerkship with Justice James C. McReynolds over, two of the new Chief Jus­ stands as a reminder to any nrr.<:nf'r clerk 198 JOURNAL OF SUPREME COURT HISTORY that one should be wary lest one's wishes be twenty-one clerks, also by Justice, who served granted. for two Terms instead of the usual one dur­ For a study of the clerk- ing the years between 1986 and institution was limited to a handful of 2002.66 The same authors reprint several in­ books. Law Clerks and the Judicial Pro­ ternaL Court documents relating to in­ cess (1 John Bilyeu and Robert Justice Blackmun's "Talking Points for S. Thomoson explored the use of clerks from Clerks" and Stephen of judges in California. H.W clerkship application letter to Chief Deciding to Decide (i 990) built on the Justice Warren in 1963.67 A addi­ work of Doris Marie Provine's Case Selection tion to either would have been the Law Clerk in the United States Code of Conduct, which was first issued in in the I although each book makes some refer­ process, and demonstrated that clerks played a ence to its contents. major role in the Court's case-selection pro­ the Code are publicly available, cess. Bradley 1. Best's Law Clerks, Sup­ pers notes that a copy lies with the port Personnel, and the Decline of Consen­ Marshall at the Library of sual Norms on the United States ~lInrpmp Both describe in detail the various methods 1935-1995 the Justices have over time to se­ of clerks in opinion-writing, the increase in lect their leading the reader to the con­ the number ofconcurring and OPIll­ clusion that landing a Supreme Court clerk- ions, and the formation of voting coalitions is doubtless the most difficult within the Court6J This short list has now sional hurdle any recent law school been by a ofrecent books, each ate can possibly encounter.69 Each volume of which makes a notable contribution to the presents data on ethnic and diversity judicial literature: Sorcerers' 62 as well the backgrounds of the clerks, political scientists Artemus Ward ofNorth­ information on both ern Illinois and David Weiden of "feeder" schools (those law schools educat­ Illinois State University, and Courtiers of the largest numbers ofclerks) and "feeder" the Marble Palace, Todd C. success rate in none of the authors has had expenence as one of their own clerks at the Supreme a Supreme Court Peppers clerked for Court). a United States district court in Nebraska The reader also discovers that the three and for a United States judge in authors employed a similar n1p,h{vir. a mail survey former clerks and in- One would be .rd-nressed to choose be­ person interviews with a few of them . tween these two new contributions. For any­ pers his research with an interview one interested in the either book stands with both Justice Scalia and Justice Stevens. on its own as a and amply documented As might be the documentation in source of information and a both books demonstrates a thorough famil­ investment of a reader's time. Because each with publ ished sources, including arti­ one contains at least some material lacking in cles and about former as well as a the the books should be read together substantial reliance on archival espe­ if possible. For Peppers includes as cially oral histories and the collected papers 4 a table the names of all of fonner Justices. Particularly in the surveys law clerks, by Justice, from 1882 to 2004. and interviews, the authors throughout seem Ward and Weiden orovide a table listing the to have discounted for any self-inflation THE JUDICIAL BOOKSHELF 199

the clerks of their own importance. "You the traditional "nr,rpr,tl model of an inappropriate idea of your own education, by which most In tance in the world for a year," Justice Stevens the United States had been trained since colo­ cautions, "and then out doing nial days. Garland's entreaties and foreclosures. After you there's a real that a ballooning letdown."7o Court led to the first Both volumes agree that credit for the clerkships-the Court of the late nineteenth of the institution goes to century was more cases than it ever Justice Horace the had Of, ever would and first Court Justice to hire a recent Weiden explain the creation of tbe institution law school as a clerk-in I at and the early role conceptualization ofthe clerk probably also the "first as a reflection of the US. or federal-to hire a law model of clerk his tenure on the Massachusetts and was not a response Supreme Court.,,71 was both the to the workload of the Court.,,77 As nator of the law and "the a "manifestation of the last of the ap­ tice to from law school and read prentice model in American law ... the clerk law as an ,,72 Gray's 1882 innova­ occupied a dualistic position-that of student tion received a boost from Attorney General as well as and clerical assistant. In Augustus H. who llsed the occasion the view ofWard and Weidcn, the arrival of the of his annual report in 1885 to recommend to clerk was more ofa "historical accident,,79 than Congress that "it would greatly facilitate the a conscious response to increased demands on business of the Supreme Court if each the Justices. was with a secretary or law "n,>th,"""'o~ there "is no '1U,~.;H'VI that the be a to be paid an annual to explain the of sufficient to obtain the requisite the institution of the clerk."8o whose duties shall be to assist in such cler­ growth consumes the bulk of both Com·tiers ical work as might be assigned to him The and Sorcerers' Apprentices. Peppers tracks labor of the court in that growth in terms of a series of evolution­ and preparing their ary "The Law Clerk as mense, and while heads of and is followed Senators have this assistance, I do not think tant," which then becomes "The Law Clerk as there is any of Firm Associate. For Ward and this court should not also have it. is a similar in which one guage leaves unclear whether Garland fore­ is succeeded by another. Law clerks as "sec­ saw the new assistant being a stenogra­ retaries" characterizes the period 1882-1918. a trained attorney, or some combination The years 1919-1941 find the clerks acting of both. In any event, Garland's that the as "research while be­ Justices needed help was successful. In 1886 tween 1942 and 1969 become "junior 'An,~r~M authorized the of and then "sorcerers' clerk for the after 1970. to Ward and Weiden's associate of the at not it was the third that one thousand six hundred dollars the number of clerks doubled from one to two each."74 per and during the latest that the Ward and Weiden believe it is significant third and fourth clerks for each Justice were that the law clerkship at about the statute at same time that law schools were beginning to the 200 JOURNAL OF SUPREME COU HISTORY

William H. Rehnquist (right) was photographed in the Supreme Court courtyard when he clerked for Robert H. Jackson. He is seated next to Harry Parker (messenger, left) and C. George Niebank, Jr. (co-clerk, center).

Fred M. Vinson's addition of a third clerk in and Vinson, the length of the dead list grew. S) 1946 prompted Second, the explosion in petitions for review­ especially in the 1960s-not meant that m at clerks spent much of their time on matters of the Court have driven in the c1erk­ certiorari but prompted creation of the "cert institution. For Chief Justice pool," whereby the labors ofclerks from differ­ introduction of the "dead list" en­ ent Chambers were combined and then shared. couraged Justices to their clerks to work After Justice Marshall's retirement for certiorari and in 1991, only Justice Stevens remained outside so-called "cert­ the cert poo1.84 Third, it was also in the years worthy" had been after 1942 that it became common for clerks for the Justices to review the rel­ routinely to prepare their Justices for oral argu­ atively small number of new that ment through the preparation of Bench memos arrived each with the Chief Justice pre­ that were themselves of the briefs on senting and them at conference the merits that had been filed by the for review. once it became the de­ in each case. Fourth, even so fault rule that review was denied if a case was dane a matter as in a Chief's on the dead list Justices had to be more fa­ assignment effectively involved the miliar with individual if they were to clerks more deeply in the business of be aware of those cases that merited resurrec­ opinions for their not tion or resuscitation. as the number of research for an opinion that the Justice would expanded dur­ draft. Hughes's custom had aoparentlv been of Harlan F. Stone one of not an THE JUDICIAL BOOKSH 201 who had an unfinished opinion still on his The authors of both books also ad­ desk. According to Justice recollec­ dress the central that former clerk tion, Chief Justice Warren introduced a policy William posed a half century ago: of opinion whereby each Justice influence.91 The findings of both studies are was expected to write approximately the same remarkably similar: that it is still the number of opinions. Similarly if a Justice had and not the after all, who vote in de- been case the last time, he cases. In "The "uU'M"-~ a simpler one the next time. effect of the evolution ofthe clerkship institu­ Equalization meant, however, that "Justices tion is that law clerks do not wield an inordinate who were accustomed to very few amount of influence."n For the cert opinions each term under Chief Justices Taft pool itself is an important device and Hughes, and in the years of Vinson's on what the clerks do. Because cert memo­ tenure, were expected to increase their randa are circulated among the Chambers of and turned to their clerks for help."85 Justices, a cert memo is poten­ Clerks for Justices who moved at a pace examinable by the clerks ofeight Cham­ were little affected by the but clerks bers and Justices. The for more methodical Justices "like Frankfurter that "intentional deception or and Reed found themselves writing virtually is quickly discovered."93 For Ward and Wei­ all their justices' ,,86 It was also af­ "clerks are neither merely surrogates nor ter 1940 that the "clerk developed. usurpers. Their role falls somewhere With the clerks and Justices all now working in between."94 As for decisions in the cases in the same the Justices found that the ofclerks were less their clerks could be useful resources of infor­ important to the than the more tra­ as well as informal "ambassadors,"88 ditional factors of the justices' developments in other Chambers tial philosophy, case facts, and prece­ and what other Justices be thinking. For dent." clerks are "most Ward and Weiden a the certiorari process, in memo written a clerk to Justice Powell con­ and substantive content ofopinions, as well as cerning possible "common ground" with Jus­ in the more ofopinion tice Brennan in what became the landmark Where clerks have less influence is in affirmative-action decision of 1978: Regents v. their justices' minds on the outcomes of 89 in which Brennan and Powell occu­ cases."95 Yet they that "a dan-

uwe"!;.,,",,, Iy important central both to the outcome of the case and to the im­ pact ofthe decision in higher-education circles Both volumes conclude with for over three decadesYo that ponder the future of the clerkship institu­ then, the cumulative effect of tion. True to the of their title, Ward and each of these changes has not to mmJ­ Weiden wonder whether "the clerks may find mize the role of the clerks, but rather to inte­ themselves unable to quell threats grate them more fully and more directly into to the Court's legitimacy that their institu­ the work of the Court. Most probably, nei­ tion has fostered."97 is confident that ther Justice Gray nor General Garland had any the Supreme Court "will remain a of what would become of the institu­ contested " What is less certain, tion they to spawn a little more than a he believes "is whether the clerkship expe­ century ago. each ofthe in rience will retain its as work­ the clerkship institution has also transformed loads increase and as the staffs of Chambers the Court. expand, distance between clerk 202 JOURNAL OF SUPREME COURT HISTORY and Justice, He fears that the memorableness to police in the station house might well have a of the experience will go the way determining effect later on what happened in of '''the Holmes the Black way with the courthouse, at seemed to be the facts, the Frankfurter vocabulary, the Brandeis premise ofEscobedo v, 107 where a bare ",99 be­ of five Justices suppressed a confes­ fore any scholar much attention to what sion after police denied the suspect's request to law clerks did, Justice Louis D. Brandeis~~ have his was waiting outside the who had a total of nineteen clerks 100 during for the his years on the Court- n,n,A}p'llt"r left police unclear remarked that "the reason tlle thinks so as to their constitutional obligations. much of the Justices of the On June 13, I the Supreme Courtclar­ that they are about the only people in ified its intentions. a 5-4 vote, Miranda ton who do their own work."101 In v. Arizona called for sweeping in po­ and Ward and Weiden lice oractices in federal law enforcement and one in every state of the Union. It remains Brandeis would be aghast. Yet it is difficult to bly the most criminal-law decision conceive of the contemporary Court ever rendered the Supreme Court in terms without a clerkship institution vastly of its on the political system, different from anything he Because interrogations without the pres­ As important as ence of counsel were inherently with Justice Jackson was in his ca­ reasoned Chief Justice Warren, confessions well still have been appointed to elicited under such conditions amounted to Court without it. Yet it seems un­ self-incrimination in violation of that Rehnquist would ever have secured the Fifth Amendment. This was true even if, a seat on the Court had the Court not rendered as in Ernesto Miranda's own interrogation. the the decision it did in Miranda v, 102 or confession seemed entirely very much like it. by traditional legal standards. 108 MiraJldu l03 is both the subject and the ti­ confessions would be admissible only if po­ tle of a dramatic and well-written case study lice had fully advised the to any Arizona attorney and published historical of certain particulars that nearly Gary L StUart. His book is an in­ look into the origins of a landmark decision and the of the judicial pro­ cess, from the house to the Supreme be used against him or her as Court. to have an attor~ At least since the Supreme Court ney present if she chose to answer questions. had overturned state convictions that were and (4) the offer of a court-appointed attorney based on coerced confessions. 105 the 1960s, if the was unable to retain one. some Justices wondered whether interroga­ Warren's opinion for the COUl1 took a tions--even those not third-degree dissents filed tactics-were coercive jf an ac~ but in cused person was shut up in a room with police present. to Gideon earlier in this v. Wainwright, 106 the Constitution required that essay, the decision, with other Warren an accused person be provided with counsel for Court rulings, also soon became caught up in triaL perhaps counsel should also be the presidential election of 1968. which fea­ for an interrogation. What a suspect might say tured a race among three candidates: E JUDICIAL BOOKSH 203

Vice President Hubert the Demo- ship a short time the "brilliant " .. ~,v"J"" II seemed made to order for the new President Alabama Governor the nom­ While Stuart's account steers clear inee of the newly formed American of the politics Miranda set in motion, it pro­ dent Both Nixon and Wallace built their vides the reader with a glimpse into the lives in part around attacks on the Court. of the accllsed persons and their victims in With Miranda now removed more than forty lvlironda and its cases, plus a look years into the some Americans might as well at some of the more notable aspects be surprised at the intensity of the of the For example, Stuart rhetoric that surrounded a Court de­ how particular counsel came to be initially as­ cision on criminal In words that he sociated with Ernesto Miranda's case. Stuart many times, Nixon maintained that credits Robert J. Arizona counsel to ''[s Jome of our courts have gone too far in the American Civil Liberties Union, with hav­ weakening the peace forces as the crim­ ing "found" the Miranda case, recog­ inal forces." Miranda nizing it as a "rare opportunity" to "advance he claimed that some decisions accounted in the cause for all-the as well part for "the 88 Corcoran's first to guide Miranda's Nixon from the Arizona Court was talked at length about his criteria for judi­ "the then up-and-coming Rex E. Lee,,113 of cial the Phoenix firm Salmon & he would consider would be "experience or Trask. Later Solicitor General in the in the field of criminal jus­ administration, Lee had clerked for Justice tice . . . abused in our deserve as ron White. Because that clerkship was still un­ much as the accused [and] any der "a kind of Supreme Court embargo," I 14 tice I would name would carry to the bench which barred Lee from before the and biding concern for these t"ro"ttpn "109 A Nixon Court would Corcoran turned to consti­ abandon the judicial activism that had been the tutional scholar-and former clerk to Justice hallmark ofthe Warren Court. H[N]ominees to L. Black-John P Frank of Lewis and the high court ... would be strict construction­ Roca. 115 Frank would hand Ie the briefs, with ists who saw their as interpreting law and duties at oral argument in the hands of partner not making law. would see themselves John In Stuart's view, "Frank was per­ as caretakers of the Constitution and servants haps the man for the job and, ofthe not with a free more than any other individual responsible for their social forces and polit­ the line ofreasoning that was to become known ,,110 as the Miranda doctrine. 16 concern over Frank predicated his brief on unrest associated with the Vietnam war, and what he called the "full of the Sixth other factors cost Democrats enough votes in that it made little sense enough states to reject the heir John­ "to establish an elaborate and costly system son's and to hand the White House of counsel, only to see that to Nixon. While Rehnquist lacked the national happens until it is too late to be effective." I 17 stature and visibility that would have made him Yet, ironically, it was during oral that a credible successor to ChiefJustice Warren in the link between the Sixth and Fifth Amend­ as a candidate for an Associate Justice- ments appeared. Solicitor General 204 JOURNAL OF SUPREME COURT HISTORY

Thurgood Marshall's presentation, Chief Jus­ the Omnibus Crime Control and Safe Streets tice Warren asked "facetiously if Marshall Act that Congress had passed in 1968, two meant to suggest that the Court overrule Es­ years after Miranda. The section attempted cobedo [v. Illinois]." '''No sir,' Marshall an­ to sidestep Miranda by allowing the use in swered promptly. 'I think Escobedo can fit federal court ofconfessions voluntarily given, into this case under the Fifth Amendment. even if they were not preceded by the pre­ I don't want to give support to the theory cise Miranda warnings. 124 Between 1968 and that ... Escobedo requires a lawyer be ap­ 1997, a succession of Attorneys General made pointed for an indigent at the police precinct on no use of Section 350 I, but a holding by the arrest. '" liS Th is "suggestion- made, it should Fourth Circuit Court of Appeals in 1999 125 be remembered, by the government's chieforal stipulated that because of 350 1, an unwarned advocate-that the Fifth Amendment, rather but nonetheless voluntary confession was ad­ than the Sixth Amendment, applied in this case missible. In an opinion for seven members of might not have been appreciated by the audi­ the Supreme Court, Chief Justice Rehnquist ence, for it was an audience focused on the was adamant that such confessions remained Sixth Amendment's right to counsel at the ac­ cusatory stage, not the yet-to-emerge right to remain silent in the police station." But "the idea wasn't lost on Chief Justice Warren,"119 who, of course, fashioned the opinion in Miranda. Then there was the matter of whether Mi­ randa would be applied retroactively, and, if so, how. A week after Miranda came down, the Court announced Johnson v. New Jer­ sey,12O which decreed that Miranda would ap­ ply to new trials beginning after June 13, rather than to interrogations occurring after that date. Thus, confessions already in hand for trials about to begin were inadmissible and, for pros­ ecutions in which a confession was absolutely essential, calamitous. The effect was unsettling and only fueled the political clamor that was al ready under way.121 There is also the matter of a question left answered by Warren's Miranda opinion, a question that went unanswered for some time- indeed, until deep into the Rehnquist years. Unclear from Warren's opinion was whether the bright-line rule l22 of the Miranda warnings was predicated on the Constitution or whether it merely embodied judicially crafted rules of evidence, stipulating the conditions A new book on the Miranda v. Arizona case exam­ under which a confession could be introduced ines the sweeping changes in police practices in fed­ at trial. The issue came to the forefront in erallaw enforcement that the decision generated. Mi­ 12J randa remains probably the most significant criminal­ 2000, in Dickerson v. United States. At is­ law decision ever rendered by the Supreme Court in sue was the constitutionality ofsection 350 I of terms of its impact on the political system. THE JUDICIAL BOOKSHELF 205 inadmissible. "We hold that i'y1iranda, a 2006). Pp. 392. ISBN: 0-52­ constitutional decision of this Court, may not 168366-1, paper. be in effect overruled an act of HENSLEY, THO:\lAS R. The Rehnquist and we decline to overrule l"vliranda ourselves. Court: Justices, Rulings, and Legacy (Santa We therefore hold that Miranda and its progeny CA: Pp. in this Court govern the admissibility of state­ 441. ISBN: ments made custodial PEPPERS, TODD C. Courtiers of the Mar­ both state and federal courts."126 ble Palace: The Rise and Influence of the that the Miranda rule was indeed Supreme Court Law Clerk (Stanford, CA: more than a prophylactic device to Stanford 2006). Pp. xvi, 310. deal with a criminal-justice problem, the Chief ISBN: paper. under the the STUART, GARY L. Miranda: The Story of member of the Court to do so- America's Right to Remain Silent of Arizona 2004). Pp. cation ofMiranda in 212. ISBN: 0-8165-231 cloth. but did this particular debate "to bed."127 AND DAVID L. WElDEN. Dickerson is thus consistent with the conclu­ Sorcerers' 100 Years of Law sions of and Hensley that with re­ Clerks at the United States Supreme Court spect to any contraction ofconstitutional (New York: New York University Press, the Rehnquist years, any such retro­ Pp.viii, 336. ISBN: 0-8147-9404-1, cloth, movements were fewer than many had hoped for or feared. 128 For the of persons ENDNOTES of a crime to remain silent a "fun­ IA revised in two volumes became damental value in American 1926. Charles Warren, The Supreme Court in United us, for no other rec- States History (rev. ed. 1926), the right of its citizens to tell gov­ 2Albnt J. Beveridge, The Life of John Marshall, 4 vols. (1916). ernment officials 'no' and make them abide 3Edward S. Corwin, "The Basic Doctrine of American by it. Whether we choose silence or choose Constitutional Law, 12 Michigan Law Review 247 (1914); to confess is not really the Knowing Corwin, The Doctrine of.Judicial Review: lis Legal and that we can choose one or the other is the Historical Basis and Other Essays (1914). Richard In upholding this we license our Loss, ed. Corwin on the Conslilulion (198]), vol. I, to protect all of us, innocent and 17-18, Corwin's work followed the path-breaking arti­ cle by Thayer, "The of alike."129 In its of the pro­ the American Doctrine ofConstitutional Law:­ cess through which and the by which Law Review 129 (1893), constitutional rights are 4Warren, Warren's poetic reference to "the skin Stuart's study of Miranda amounts to an en- of living thought" comes from a sentence in an opinion by and useful addition to Supreme Court Justice Oliver Wendell Holmes, Jr.. "A word IS not a crys­ tal, transparent and unchanged; it is the skin of a living literature. 13o thought and may vary greatly in color and content accord­ ing to the circumstances and the time in which it is used." Towne Eisner, 245 US. 418, 425 (1918). v. Alongside Warren's, THE BOOKS SURVEYED IN THIS lished at the relatively early date ARTICLE ARE LISTED see Warren, vol. I, ALPHABETICALLY BY AUTHOR BELOW "Death ofChiefJustice Waile," American Law 301, 303 ( 1888). BRADLEY, CRAIG M., ED. The Rehnquist 8Samuel 1. Konefsky, Chief Justice Stone and the Legacy (New York: Cambridge University Supreme Court (1946); Vincent Blasi, The Burger THE JUDICIAL BOOKSHELF 205 inadmissible. "We hold that lvfiranda, 2006). Pp. 392. ISBN: 0-52­ conslilulional decision of this Court, may not 168366-1, paper. be in effect overruled by an act of HENSLEY, THOMAS R. The and we decline to overrule Miranda ourselves. Court: Justices, We therefore hold that Miranda and its progeny Barbara, CA: in this Court govern the admissibility of state­ 441. ISBN: I ments made during custodial PEPPERS, TODD C. Courtiers of the Mar­ both state and federal courts."126 By ble Palace: The Rise and Influence of the that the bright-line Miranda rule was indeed Supreme Court Law Clerk (Stanford, CA: more than a prophylactic device to Stanford University 2006). Pp. 310. deal with a criminal-justice problem, the Chief ISBN: paper. under the the STUART, GARY L. Miranda: The Story of

v"'IJvvLvU member of the Court to do so-­ did not end all about cation ofMiranda in varying factual but did put this particular debate "to bed."127 WARD, WElDEN. Dickerson is thus consistent with the conclu­ Sorcerers' 100 Years of Law sions of Bradley and Hensley that with re­ Clerks at the United States Supreme COUl-t spect to any contraction ofconstitutional (New York: New York University Press, 2006). the Relmquist years, any such retro­ Pp.viii, 336, ISBN: 0-8147-9404-1, cloth. movements were fewer than many had hoped for or feared. 128 For the of persons ENDNOTES of a crime to remain silent a "fun­ IA revised in two volumes became available damental value in American 1926, Charles Warren, The Supreme Court in United us, for no other government rec~ States History cd. 1926), the right of its citizens to tell gov­ 2Alberl J. Beveridge, The Life of Jolm Marshall, 4 vols. (1916). ernment officials 'no' and make them abide .1Edward S. Corwin, "The Basic Doctrine of American by it. Whether we choose silence or choose ConslitutJonal Law, 12 Michigan Law Revielv 247 (J 914); to confess is not really the Knowing Corwin, The Doctrine of Judicial Review: Its Legal and that we can choose one or the other is the Historical Basis and Other Essays (i 914). Richard In upholding this we license our Loss, ed. Corwin on the Constitution (1981), vol. 1, to protect all of us, innocent and 8. Corwin's work followed the path-breaking arti­ cle by Thayer, "The Origin and alike.,,129 In its of the pro- Harvard by which constitutional rights are Stuart's study of A1iranda amounts to an en­ gaging and useful addition to Supreme Court literature. 130

THE BOOKS SURVEYED IN THIS ARTICLE ARE LISTED Warren, vol. 1,806-1 ALPHABETICALLY BY AUTHOR BELOW TNotes, "Death ofChiefJustice Waite," American Law 301,303 (1888) BRADLEY, CRAIG ED. The Rehnquist 8Samuel J. Konefsky, Chief ,Justice Stone and the Legacy (New York: University Supreme Court (1946); Vincent Blasi, The Burger 206 JOURNAL OF SUPREME COURT HISTORY

Court: The Counter-Revolution That Wasn't (1983); 39Sadly, Professor Renstrol11 lost his own battle with cancer Bernard Schwartz, The Burger Court: Counter­ in September 2006. revolution or Confirmation? (1998); Bernard Schwartz, 41rfhe author of this review essay contributed a volume to The Warren Court: A Retrospective (1996); L.A. Powe, the Supreme COliI'I I-/alldbooks series: The Waite Court: Jr., The Warren Court in American Politics (2000). Justices, Rulings, and Legacy (2003). 9Tinsley E. Yarbrough, The Rehnquist Court and the 4iThe most recent entry in the Johnson series is Michael Constitution (2000). R. Belknap, The Supreme Court Under Earl Warren IODavid L. Hudson, 11'" The Reilnquist COIII't: Under­ (2005). The most recent entry in the Hol!lles Devise series standing Its Impact and Legacy (2007). is William M. Wiecek, The Birth of the Modern Consti­ IICraig M. Bradley, ed., The Rehnquist Legacy (2006) tution: The United States Supreme Court, 1941-1953 (hereafter cited as Bradley). (2006). 12/d., 2. 42l-Iensley, xv. 13Id., 2. 4JHenry J. Abraham, Justices, Presidents, and Senators 14See Roper v. Simmons, 543 US. 551 (2005); AIkins v. (1999), 181,304--5. Vi/ginia, 536 US. 304 (2002). 44Hensley, xv. '5Bradley,3. 45Id., 318. :6Id. 46/d. 17 AJpheus Thomas Mason, "fhe Chief Justice of the 47/d., xvii. In statistical studies of the Court, character­ United States: Primus Inler Pares," J 7 Journal of Puh­izing the "direction" of a vote-that is, whether it is to lie Law 20. 21 (1968) be considered liberal or conservative-is somewhat arbi­ 18Felix Frankfurter, "Chief Justices I Have Known," 39 trary. A "liberal" vote in a case involving an individual Virginia Law Review 883, 901 (1953). right is usually defincd as a vote in favor of the individual 19A1pheus Thomas Mason, Harlan Fiske Stone: Pillar of and against the government, whereas a vote in favor of the the Law (1956),568. government is tagged as "conservative." Whcn property 20David Danielski, 'The Inlluence of the Chief Justice in rights are at issue, the labeling is reversed and rellects a the Decisional Process of the Supreme Court," in Walter post-New Deal slant. Accordingly, a vote in favor of the F. Murphy, C. Herman Pritchett, and Lee Epstein, eds., property right is considered conservative, while a vote in Courts, Judges, and Politics: An Introduction to the favor of the government is marked liberal. See Harold J. Judicial Process (5 'h ed., 2002), 663. Spaeth, "Justice Sandra Day O'Connor: An Asscssment," 21Robert G. Seddig, "John Marshall and the Origins of in D Grier Stephenson, Jr., ed., An Essential Safeguard: Supreme Court Leadership, Joul'I1al of Supreme COllrl Essays on the United States Supreme Court and Its HislOIY (1991), 63, 64. Justices (J 991), 84. 22Bradley,3. 4BId., xvii. The operative word in this characterization is 231d. "major" and is subject to several notable qualifications. 24[d. For example, Crl1lv/imi v. Washinglon, 541 U.S. 36 (2004), 251d., 3-4. overturned Ohio v Roherls, 448 U.S. 56 (1980), which had 26Id., 4. allowed the use of certain hearsay testimony over Con­ 271d. SCI" Kim Isaac Eisler, A Justice For All (1993), 103, frontation Clause objections. See Hensley, 320. Similarly, 139-40. in the realm of the death penalty Aikins v. Virginia, 536 lRBradley, 5 (emphasis in the original). US. 304 (2002), overturned PenrF v. Lynaugh, 492 U.S. 291d. 302 (I989),just as Roper v. Simmolls, 543 U.S. 551 (2005) 30Rchnquist, "The Notion of a Living Constitution," 54 overturned Sian/ore! v. Ke/ilucky, 492 U.S. 361 (1989). See Texas Law Review 693, 470 (1976), quoted in Bradley, Hensley, 320. 5. 49For example, with respect to the limitations placed on 3I Trimble v. Gordon, 430 US. 762, 778 (1977) (Rehnquist, government by the establishment elallse,,1goslil1i v. Fellon, .1., dissenting). 521 U.S. 203 (1997), represented a significant departure 32LaIVrence v. Texas, 539 US 558 (2003). from Aguilar v. Fe/Ion, 573 U.S. 402 (1985). 33Plal1ned Parenlhood of SoulheaSlern Pennsvivallia v. 500f the forty-three Presidents to date, four-William Casey, 505 US. 833 (1992). Henry Harrison, Zachary Taylor, Andrew Johnson. and 34Sal11a Fe Ind. School Dislriel v. Doe, 53 I U.S. 290 Jimmy Carter ..made no appointments to the Supreme (2000). Coun. Even James Garfield, who was President for only 35Gnilla v. Bo/ling('/', 539 U.S. 306 (2003). a few months before he was assassinated, was able to ]6Bradlcy,5. make one: Stanley Matthews in 1881. Garfield's nomina­ 17Hensley,7. tion ofMatthews succeeded. whereas President Rutherford 3~Thomas R. Hensley, The Rehnquist Court (2006) Hayes's nomination of Matthews had been pigeonholed by (hereafter cited as Hensley). the Senate. THE JUDICIAL BOOKSHELF 207

5JJefferson hoped th at William Johnson, hi s first appointee appears as a heading for the section on Supreme Court to the Supreme Cou rt , would assert hi s independence of law clerk s in Herman Schwa rtz, Decision (1996),48. the "domineering Chi ef Justi ce" (Marshall) Jefferson's 65 Peppers, 2 19-35. hopes we nt mainly unfulfilled. Benjamin F. Wri ght , " Fore­ 66Ward and Weiden, 47. wo rd," in Donald G. Morgan, Justice William Johnson: 67/d., 267,264. The First Dissenter (1954), v. 68 Peppers, 204 . 52President Clinton's appointment ofRlIth Bader Ginsburg 69Th rough 2002, some 1,736 ind ividual s cle rked at the to the Court in 1993, to fill the vacancy created by the re­ Supreme Court, wit h onl y 152 of them serving for longe r tirement of Ju sti ce Byron R. White, wa s the first Supreme than a single Term, although in the earlier years of the Court appointment by a Democratic President since Presi­ cle rk ship institution, some 12 clerks served for nine yea rs dent Lyndon Johnson's ap pointment ofThurgood Marshall or more. Ward and Weiden, 31. in 1967. 70Id., 19 . 53 Hensley, 321. 71 Peppers, 43. 541d. 72 Ward and Weiden, 29. 55Alpheus Thomas Mason and Donald Grier Stephenson, 73 Peppers,42. Jr. , American Constitutional Law: Introductory Essays 74 1d. Genera l Garland later aut hored a volume of memoirs and Selected Cases (1 4th ed., 2005), 17. that includes his olVn observations on the Supre me Court. 56 Bernard Schwartz, Decision: How the Supreme Court Augu stus H. Garland, Experience in the Supreme Court Decides Cases (1996), 48. of the United States (1898). 57 William H. Rehnquist, "Who Wri tes Decisions of th e 75See, e.g., Paul R. Baier, "The Law Clerk s: Profile of an Supreme Court?" u.s. News & World Repor/, Dec. 13 , Inst itution," 26 Vanderbilt Law Review 1132 ( 1973). 1957; Reh nqlli st, "Another View: Clerks Might 'Influ­ 76Compare the data in Feli x Frankfurter, and James M. ence' Some Actions." u.s. News & World Report, Feb. 21, Landis, The Business of the Supreme Court ( 1928),86, 1958 . See also Willi am D. Rogers, "Do Law Clerks Wield with Lee Epstein, Jeffrey A. Segal, Haro ld J. Spaeth, and Power in Supreme Court Cases?," u.s. News & World Re­Thomas G. Walker, The Supreme Court Compendium: port, Feb. 2 1, 1958 . Rogers had clerked for Justi ce Stanley Data, Decisions, Developments (2d ed . 1996), 71, and Reed. "2006 Year-End Report on the Federal Judic iary," 39 The 58Bob Woodwa rd and Scott Armstrong, The Brethren: Third Branch 1,4 (Jan. 2007). Inside the Supreme Court ( 1979); Edward Lazarus, 77 Ward and Weiden, 26. Closed Chambers: The Rise, Fall, and Future of the 78 Id., 29-30. Modern Supreme Court ( 1998). 79 Id. , 26 . 590n The Brethren, see D. Grier Stephenson, Book Re­ SOld. , 18 (e mpha sis in the original). view, 46 Brooklyn Law Review 373 (1980). 81 Ward and Weiden, 23. 60 Dennis J. Hutchinson and David J. Garrow, eds., The 82 Id.,37. Forgotten Memoir of John Knox: A Year in the Life R3Jd . of a Supreme Court Clerk in FOR's Washington 84 Id.,45. (2002). 85 Id., 42. 61.1 ohn Bilyeu Oakley and Robert S. Thompso n, Law 86Id.,43. Clerks and the Judicial Process (1980); Dori s Marie 87/d. Provines, Case Selection in the United States Supreme 881d. Court (1980); H. W. Perry, Deciding to Decide: Agenda 89438 U.S. 265 (1978). Setting in the United States Supreme Court (1990); 90 Ward and Weiden, 43-45. Bradley 1. Best, Law Clerks, Support Personnel, and 9JB eca use he organizes hi s book around a "principal the Decline of Consensual Norms on the United States agent" model, Peppers prefers the word "shirking" to "in­ Supreme Court, 1935-1995 (2003). fluence ." Peppers, 10, 12. 62 Artem us Ward and David L. Weiden, Sorcerers' Ap­ 92ld.,211. prentices (2006) (hereafier cited as Ward and Weiden). 93Id., 210. 63Todd C. Peppers, Courtiers of Ihe Marble Palace 94Ward and Weiden , 237-38. (2006) (hereafter cited as Peppers). 95 /d ., 24 1. 64 Th e titles of both books have respecta ble pedigrees. %Jd, 246. Ward and Weiden look to a 1779 poem by Johann Wolf­ Y7ld., 250. gang vo n Goethe for theirs (Wa rd and Wei den , 249), 98Peppers, 2J 2. whil e Peppers draws hi s from Baldassare Casti glione 'S 99Id., 212, quoting .Tohn P Frank , " Fred Vinson and th e The Book of the Courtier, written fi ve centuri es ago Chi ef Justiceship," 21 Universify o/Chicago Law Review (Peppers, 21 1). The term "Sorcerer's Ap pre n tic e~" also 224 ( 1954). 208 JOURNAL OF SUPREME COURT HISTORY

100Brandeis's clerks included such future notables as Dean 121The Court apparently learned a lesson from this retroac­ Acheson, Paul A. Freund, Henry 1. Friendly, Willard Hurst, tivity blunder. When Ul1ited Slates v. JYade required, to and David Riesman. Peppers, 220. 4, the presence of counsel at identification police lincups, IOIQuoted in Charles E. Wyzanski, Jr., Whereas-A the Court made clear that the ruling would apply only to Judge's Premises: Essays on Judgment Ethics and the identifications made after that date. 388 US. 2 I 8 (I 96h Law (1965),61. I22A "bright-line rule" a legal standard composed of 102384 US. 436 (1966). elements that are supposed to produce a consistent pat­ I03Gary L Stuart, Miranda (2004) (hereafter cited as Stu­ tern of application in later cases. Thus. with confes­ art). There were actually four cases joined together in Mi­ sions, the Miranc/a rule replaced the old voluntariness randa l' Arizona that were decided with a single opinion. test Besides Miranda, they include Vignera ,,< New York, WeSI­)23530 US. 427 (2000). over v. Ul1Ited Stales, and California l' Stewart. See 384 I24See Recent Statute, "Title II ofthe Omnibus Crime Con­ US< 436 (1966 l< The opmion was released on June 13, trol and Safe Streets Act of 1968," 82 Harvard LaI" Review 1966 It followed oral arguments delivered by ten lawyers J392 (1969). that lasted more than seven hours, spread over three days, 125UniledSwtes c Dic{(el:wl1, 166F 3d 667 Clr 1(99). all of which resulted in a transcript of about 280 pages< 126530 US. at 331 (emphasis addedJ Even though the four cases arc today all commonly re­ I27Stuart, 167. In Dickerson, Chief ferred to Miranda, it was the Stewart case that actually spoke for the Court. Justice Scalia, bore the lowest docket number< Stuart beheves that Mi- Thomas, dissented. the decision was known 12SBradley's volume includes Yale Kamisar: "Dickerson v. Ullited States: The Case That argument." Disappointed ,tfiranda's Critics

Contributors

Calvin H. Johnson is the Andrews & Kurth of A Political Companion to In­ Centennial Professor at the University ofTexas visible iWan and Lincoln's Sacred Effort: School Law. He is the author of Righteous Defining Role in American Self­ Anger at the Wicked States: The Meaning Government. oUhe Founders' Constitution. He has served as Chairman of the American Bar Association Linda Przybyszewski is an associate Tax Section Committee on Tax Structure and sor of at Notre Dame University. She and as Chairman ofthe Ameri­ is the author of The Republic According to can Association of Law Tax Section. John Marshall Harlan and the editor ofSome Memories of a Life, 1854-1911 by Jonathan Lurie is a of history at Malvina Shanklin Harlan. at Newark. He is the au­ thor of Arming Military Justice, volume 1; D. Grier Stephenson, Jr. is the Charles A. The Origins of the United States Court Dana ofgovernment at Franklin and of Military Appeals, Marsha!l He regularly contributes Military Justice, volume 2; The History of "The Judicial Bookshelf" to the Journal. the United States Court of Appeals for the Armed 1951-1980; with Ronald Sandra F. VanBurkleo is an associate pro­ The Slaughterhouse Cases: fessor of and of law Reconstruction, and the Fourteenth at State University. She is the author Amendment. of Belonging to the World: Women's Rights and American Constitutional Culture and Lucas E. Morel is an associate professor the editor of Constitutionalism and Amer­ of in Williams School of Commerce ican Culture: the New Constitu­ at and Lee He is tional History with Kermit L. Hall and Robert the author of Ellison and the Raft 1. Kaczorowski.

Corrections: On page 5 of volume 31, number 2, the length of time Justice Byron Whi te served on the Court was misstated. He served thirty-one years, from 1962 to J993. In Bennet article on Court declinations in volume 3 I number 3, John Scholfield's name was spelled Correspondingly, the photo on page 258 is not Scholfield, but General John McCallister Schofield. 210

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All images are courtesy of the Library ofCongress except Page 157 (top), Photograph by Parker Studio, Collection as noted below: of the Supreme Court of the United States Page 157 (below), Collection of tile Supreme Court of the United States Page 117, Artist Unknown, Collection of the Supreme Page 167, Photograh by Landy Studio, Collection of the Court of the United States Supreme Court of the United States Page 139, Photographer Collection of the Supreme Court Page 183, Photograph by Clinedinst Studio, Collection of of the United States the Supreme Court of the United States Page 143, Unknown, Etching by Albert Rosenthal, Col­ Page 185, Photograph by William H. Towles, Collection lection of the Supreme Court of the United States of the Supreme Court of the United States Page 145, Collection of the Supreme Court of the United Page J 88, Photograph by William Underwood & Under­ States wood, Collection ofthe Supreme COllrt ofthe United States Page 158, Photograph by Steve Pettaway, Collection ofthe Page 196, Courtesy ofTod Peppers Supreme Court of the United States Page 200, Photograph by Sam Daniels

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