YEARBOOK 1978 SUPREME COURT HISTORICAL SOCIETY ROGER B. TANEY Fifth Chief Justice, 1835-1864 YEARBOOK 1978 SUPREME COURT HISTORICAL SOCIETY OFFICERS Chief Justice Warren E. Burger, Honorary Chairman Robert T. Stevens, Chairman Elizabeth Hughes Gossett, President EDITOR William F. Swindler EDITORIAL ASSISTANT Mary Beth O'Brien The Supreme Court Historical Society BOARD OF TRUSTEES Chief Justice Warren E. Burger Honorary Chairman Robert T. Stevens Elizabeth Hughes Gossett Chairman President Vice-Presidents Earl W. Kinter Whitney North Seymour William P. Rogers Fred M. Vinson, Jr. Mrs. Hugo L. Black, Secretary Vincent C. Burke, J r., Treasurer Mrs. David Acheson David L. Kreeger Ralph E. Becker Sol M. Linowitz Herbert Brownell Richard A. Moore Gwendolyn D. Cafritz David A. Morse Howland Chase Alice L. O'Donnell William T. Coleman, J r. Melvin M. Payne Charles T. Duncan Harvey T. Reid Patricia Collins Dwinnell Fred Schwengel Newell W. Ellison Bernard G. Segal Paul A. Freund William F. Swindler Erwin N. Griswold Obert C. Tanner Lita Annenberg Hazen Hobart Taylor, Jr. Joseph H. Hennage Mrs. Earl Warren Linwood Holton J. Albert Woll Nicholas deB. Katzenbach Francis R. Kirkham Rowland F. Kirks William H. Press, Executive Director Mary Beth O'Brien, Ass't to the Executive Director Richard B. Pilkinton, Ass't Treasurer INTRODUCTION This, our second year, has proven to be one of substantial progress and I greet all our members, with the hope that we can double and perhaps triple your number by the spring of 1978. We had our second annual meeting and dinner, May 19, and then about three weeks later our beloved Chairman, Tom C. Clark, suddenly died. Not only have I lost a personal family friend of many years standing, but during the past two years of sharing the endeavor of launching this fledgling Society, he has given me and us all wise counsel, guidance, leadership and support, from which we benefited greatly. As we mourn his loss, I can think of no better way in which to adequately express our own feelings than to have published in Yearbook 1978 for your perusal the magnificent tributes made to him by the Chief Justice and his son, Ramsey Clark, at the memorial service held on June 22 at the National Presbyterian Church in Washington, D. C. It was probably one of the most tender and therefore touching services of its kind I have ever at­ tended and thus so appropriate for "Justice Tom." Elizabeth Hughes Gossett President YEARBOOK 1978 Supreme Court Historical Society In Memoriam: Tom C. Clark As the Court Remembers Him 2 Eulogy by the Hon. Warren E. Burger 3 Eulogy by the Hon. Ramsey Clark 5 My Father the Chief Justice 7 Lauson H. Stone The Trials of Aaron Burr 18 William F. Swindler Documentary Films on the Supreme Court 25 Yankee From Georgia 31 Thomas E. Baynes PORTFOLIO: The Court Under Chief Justice Taney 43 Niles Register and the Supreme Court 50 Jeffrey Morris The Case of the Missing Bodies 61 Eberhard P. Deutsch The Unconstitutional Conviction of "Baby" 68 E. Barrett Prettyman, Jr. Customs, Courtesies and Ceremonies 79 Charles Henry Butler Congress versus the Court 91 Robert W. Langran The Miracle of the Constitution 97 C. Waller Barrett DEPARTMENTS De Minimis, or, Judicial Potpourri 103 The Supreme Court in Current Literature 113 Res Gestae: The Society in 1977 121 Contributors 126 Acknowledgments 127 Copyright, 1977, by the Supreme Court Historical Society, 1511 K Street, N. W., Washing­ ton, D. C. 20005. In Memoriam Tom C. Clark 1899-1977 Through the ages men have dreamed of and struggled toward the concept that nothing on earth is more sacred than human personality-that there is in the human soul a place which is inviolate, where no government or man may enter. But not until it became a part of our Declaration of Independence did this great concept of inalienable rights take on reality. Here for 171 years it has thundered forth its message to freedom-loving peoples everywhere. The recognition and declaration that there are God-given rights-so inalienable-in­ still in man constant faith and hope, provide him with a Court of Appeals that is never closed-a law beyond the law-beyond the jurists-beyond the law makers. There is a higher law than mere man-made law. Tom C. Clark February 14, 1948 2 TOM C. CLARK As the Court Remembers Him At the time of his death, Tom Clark's judges than any other Justice in the history colleagues on the Supreme Court each issued of the Supreme Court of the United States." a statement, the excerpts from which fittingly MR. JUSTICE REHNQUIST: "I, along with complement the eulogies of the Chief Justice the rest of the bench and bar of this country, and the former Attorney General which fol­ can attest to the fact that if ever a man's low on the next pages. career embodied the counsel of Theodore THE CHIEF JU STICE : "He was unique in Roosevelt's that 'every man owes some time the annals of this Court and the judiciary, to the improvement of his profession,' it was in that he took all problems of the judicial Tom Clark's." process as his personal burden . .. His work MR. J USTICE STEVENS: "He earned the re­ to improve the system will be his personal spect, admiration and affection of the entire monument." federal judiciary by his evenhanded, per­ MR. JUSTICE BRENNAN: "His great distinc­ ceptive and tireless participation in our day tion as a judge is the reflection of his convic­ to day work." tion that it is wrong to live life without some MR. JU STICE DOUGLAS (Ret.): "Mrs. deep deep and abiding social commitment." Douglas and I . greatly admired Tom MR. JUSTICE STEWART: "The lawyers and Clark for the stand he always took on the judges of our country will long remember independence of the judiciary and his will­ Tom Clark for his tireless devotion to the ingness to face every issue in turbulent times fair administration of federal justice." as well as in peaceful days no matter how MR. JUSTICE WHITE: "This Texan, a re­ difficult and bothersome they were." markable mixture of practicality and ideal­ ism, with a talent for getting things done but getting them done better, was unfailingly cheerful, optimistic and generous." MR. JUSTICE MARSHALL: "Tom Clark is also to be remembered as the first Attorney General of the United States to file a brief amicus curiae in a civil rights case. This act was doubly important because it was the first brief by an Attorney General in support of civil rights, and it was ordered by a man from Texas." MR. JUSTICE BLACKMUN: "Mr. Justice Clark ... was a superb ambassador, in the literal meaning of that term, from the Court to lawyers everywhere ..." MR. JUSTICE POWELL: "It is likely that Mr. Justice Clark was known personally and ad­ Characteristic informal picture of Mr. lustice Clark, complete with smile and mired by more lawyers, law professors and bow tie. YEARBOOK 1978 3 Tom Clark Eulogies Chief Justice Warren E. Burger He brought to it a vast experience in the practice of law and in the administration of Tom Clark is at once a very easy and justice. But perhaps even more important very difficult man to talk about-difficult than the experience was the standing and in the sense that the facets and ranges of his respect he had with the federal judges of judicial activity were so broad that no brief this country. That enabled him to secure the ceremony would permit appropriate treat­ acceptance of this new institution from fed­ ment. In the traditional Court announce­ eral judges, and he gave it standing and ment made from the bench on the Monday credibility in something less than the two following his death, we alluded to his long years in which he served as its director and career in the law beginning in Texas as a until he was required at age seventy, under practitioner, then as a career lawyer in the the law, to retire from that position. No other Department of Justice, and the only one who person in America-lawyer, judge, or pro­ had ever moved from the career service to fessor-could have given that center its the high post of attorney general of the standing and credibility as Tom Clark was United States. He served with great distinc­ able to do in two short years. tion in the office of attorney general, and Then he returned to sitting on the courts after that was appointed a Justice of the of appeals and sometimes the district courts Supreme Court of the United States. by assignment, and sat on the courts of all He retired from the Court at age sixty­ eleven circuits, something no other judge has seven, still at the peak of his powers, in done in the history of this country. order to permit the appointment of his son To all his work-as a lawyer, as attorney Ramsey as attorney general of the United general, and on the bench-he brought a States. He took great pride in Ramsey in wonderful blend of common sense and com­ two respects: first, in the fact that his son passion. He had a firm belief that law was succeeded to the office he had once held, not an end, but only a tool and that prin­ and second, in Ramsey's exemplary perform­ ciples alone, however noble or great, were ance in that high office. empty abstractions unless they were provided When he retired in 1967, Tom Clark was with the wheels for delivery of the meaning then at a point most men or women would of those principles to the people.