VOLUME XXXIX NUMBER 3, 2017

42nd Annual Meeting June 5, 2017

Beautiful weather created the perfect setting for the editor for the Harvard Law Review. Upon completion Society’s 42nd Annual Meeting on June 5, 2017. Following of law school he clerked for Judges Harold Leventhal and the now time-honored schedule, the fi rst event of the day David L. Bazelon of the U.S. Court of Appeals for the was the Annual Lecture. It D.C. Circuit. Immediately was given in the Supreme afterwards he clerked for Court Chamber as it has Chief Justice Warren Burger been for two decades and during the Court’s 1980-81 was presented by President Term. Emeritus John Sexton of New In 1981 Sexton joined York University. President the faculty of the New York Sexton spoke on the subject University School of Law of Warren Burger, the Court and was named its Dean in and Society. As many 1988. He was appointed the members already know, the 15th President of New York

Supreme Court Historical [email protected] by Photos University in 2002 and held Society owes its existence the offi ce until 2016. to Chief Justice Warren President Sexton op- Burger. He saw the need for ened his presentation an organization that would commenting that he had be dedicated to protecting, enjoyed the privilege to preserving and exploring the clerk for three remarkable history of the Supreme Court judges: Judge Leventhal, and he played a fundamental Judge Bazelon and Chief role in the creation of the President Emeritus John Sexton discussed the contributions Justice Burger. He said that of Chief Justice Warren E. Burger during the Annual Lecture Society. It can truly be said on June 5, 2017. no one, including himself, that the Supreme Court would have predicted that he Historical Society would not would be chosen by Burger exist had it not been for Warren Burger. He served as the to serve as a clerk because he had been recommended by fi rst Honorary Chair and displayed a keen interest in our many of Burger’s sharpest critics. The process of selection activities and programs until his death. was somewhat short-circuited when Judge Leventhal died The Society’s then-President Gregory Joseph introduced prior to the fi nal selection and Sexton began clerking for John Sexton who was eminently qualifi ed to present the Judge Bazelon. Aware that the Chief Justice and Judge Annual Lecture for several reasons. First, he had clerked for Bazelon did not get along very well Sexton asked to have Chief Justice Burger, and second, for a life-time he has been his name removed from the potential clerk pool to create an teaching law and researching and writing on the Supreme opportunity for a more acceptable candidate. He was advised Court. The possessor of multiple degrees, Dr. Sexton’s law by a colleague that Chief Justice Burger should never be degree is from Harvard, where he served as Supreme Court stereotyped. Sexton was delighted and somewhat surprised 42nd Annual Meeting Continued on Page 3 A Letter from the President Cassius Clay (later known as Muhammad Ali), and Khaliah Ali, one of Mr. Ali’s daughters. Their presence made the This fall season has been evening even more meaningful. a busy one for the Society. I The Society’s newest publication will be available in early will start with the 2017 Leon December: Table for Nine: Supreme Court Food Traditions Silverman Lecture Series. As and Recipes. As it turns out, the well-known cliché,” when of the time I write, three of people meet, they eat,” can be applied even to the Justices the four programs in the series of the Supreme Court. The tradition of meals taken together have been presented. Built has been a part of the experience of the Justices since around the overall theme of the earliest days of the Court, and it continues to play an “Supreme Court Justices in important role in fostering camaraderie. The back page of Presidential Cabinets,” the this newsletter provides more information about the book, series has explored Justices and shows the cover artwork, which is an original drawing who also served as members created specifi cally for the book by noted courtroom artist of a Presidential Cabinet. Art Lien. The “icing on the cake” is a Foreword by Justice The fi rst lecture addressed Ruth Bader Ginsburg. In the center of this issue there is a two Justices whose names four-page color fl yer that illustrates other inviting items are writ large in the founding of our country: John Jay and available through the Society’s gift shop. To order the new John Marshall. Both Jay and Marshall served as Secretary cookbook (which is perfect for holiday gift-giving), or any of State for the new country. Professor Sai Prakash of the other gift items sold by the Society, please check the website, University of Virginia presented an engaging review of their www.supremecourtgifts.org, or telephone the gift shop directly experiences. The second speaker, Cynthia Nicoletti, also a at the toll-free number (888)-539-4438. Professor at the University of Virginia, spoke about Salmon Now to the New Year that fast approaches. One of the P. Chase who served as Secretary of the Treasury under most important events scheduled for 2018 is the Society’s President Lincoln, prior to his appointment to the Court. Fourth New York Gala, which will be held on March You can read more about his activity in that capacity in the 14, 2018 in the Ballroom of the Plaza Hotel in New article on page 10 of this magazine. Reading the article will York City. On that occasion the Society will honor the convince you that Chase was not opposed to self-promotion! accomplishments of David Rubenstein, a noted champion of The third lecture moved to the 20th Century, as Professor historical preservation. The Galas have become an important John Q. Barrett discussed Robert H. Jackson’s service as source of funds that underwrite the costs involved with Attorney General under Franklin D. Roosevelt. Professor producing many of the educational programs conducted by Barrett explained the close association Jackson developed the Society. Information about the event is included on the with FDR that led to Jackson’s meteoric rise in public life. website. Please consider sponsoring a table for the event if The fourth and fi nal lecture in the series will be given on you have not done so already. If participation in the Gala Dec. 6 by Sidney M. Milkis of the University of Virginia is not convenient, please consider making a year-end gift Department of Politics, who will discuss James F. Byrnes and to the Society’s Annual Fund. These donations are also an FDR. Byrnes, in an unusual move, and at the request of the important element of fundraising to support our work. President, resigned from the Court to accept an appointment Your support of the Society’s work is greatly appreciated. as Director of Economic Stabilization. A forthcoming issue With your engagement, the coming year will be a great one. of the Journal of Supreme Court History will contain the text of these lectures, making them available to those who were unable to attend in person. Recently, the annual 2017 Frank C. Jones Reenactment re-envisioned the case of Cassius Clay v. United States. This famous case about conscientious objectors and the draft was explained by Thomas G. Krattenmaker, a retired academic Quarterly with extensive public service who set the historical stage for Published four times yearly in Spring, Summer, Fall, the oral argument. Attorneys Theodore Wells and Donald B. and Winter by the Supreme Court Historical Society, Ayer engaged in lively advocacy before Justice Sotomayor, 224 E. Capitol Street, N.E., Washington, D.C. 20003. Tel. who presided over the event. The next issue of this magazine (202) 543–0400, http://www.supremecourthistory.org. will review this event in detail, but in the interim, we thank Distributed to members of the Society, law libraries, the four principals. Each spent hours preparing for the interested individuals, and professional associations. reenactment, and that eff ort produced a memorable and Managing Editor Kathleen Shurtleff engaging evening. We were honored to have two family Advisory Editor James B. O’Hara members attend the presentation: Lonnie Ali, the widow of 2 42nd annual Meeting continued from Page 1 organization dedicated to collecting, preserving and furthering the history of the Court. To that end he asked a few associates with both legal and historical backgrounds to research what would be involved in creating such an organization. With the encouragement of Burger, these volunteers planned and created the Supreme Court Historical Society. Chief Justice Burger served as Honorary Chairman of the Board of the Society throughout his lifetime and took an active interest in the work of the organization. Through his encouragement, the newly created Society focused on developing publications and lecture opportunities and started an ambitious acquisition program to obtain through gift or purchase meaningful items of signifi cance to the history of the Court and the individuals who have served thereon. At the conclusion of his speech, Mr. Joseph thanked President Sexton for his thoughtful and insightful James B. Barnes (right) received the student Hughes-Gossett Award from the Chief Justice John G. Roberts Jr. presentation. Mr. Joseph then recognized Mrs. Leonora Burger, the widow of Chief Justice Burger’s son Wade, and when he was chosen. their daughter Andrea Barber, in the audience. Public perception of Chief Justice Burger was that he Following the lecture, tour guides provided by the Offi ce was aloof, but Sexton’s of the Curator of the Supreme experience taught him that Court conducted tours of the was also a misconception. building for members and Shortly after the Chief their guests. An earlier tour Justice had interviewed him opportunity was provided for the prospective clerkship to members as well. The he called Sexton. The Chief Society is grateful to Curator Justice told Sexton that he Catherine Fitts and Director knew he was going through of Tours Nikki Peronace some very hard times, so he and other members of the wished to inform him without Curator’s staff for leading delay that he had been chosen the tours that day and for to serve as a clerk. Sexton their assistance throughout said that he never knew how the year. the Chief Justice learned that Mrs. Leonora Burger (left) and her daughter Andrea Barber The Annual Meeting of Sexton’s mother was battling visited with President Sexton following the Annual Lecture. the Board of Trustees was cancer, but he learned that the thoughtfulness Burger Photos by [email protected] demonstrated that day was very characteristic of the Chief Justice. Indeed, he and his fellow Burger clerks developed warm personal relationships with the Chief Justice during their service, relationships that continued long after the clerkships ended. Beyond his customary duties as Chief Justice, Burger cared deeply about the state of the legal profession in general and the judicial system. With an eye to improving the functionality of the Court system, he created an Institute for Court Management, and his involvement with the National Center for State Courts was unprecedented. His vision inspired the creation of the Supreme Court Fellows Program which now places fellows each year at the Supreme Court and three other agencies related to the judiciary. These innovations can be linked directly to Burger’s leadership and vision. Chief Justice Roberts with Professor Steven Brown (right) who Chief Justice Burger also sensed a need for an historical received the Hughes-Gossett Award. 3 42nd annual Meeting Continued on Page 4 42nd annual Meeting continued from Page 3 eff orts are focused on producing a Supreme Court cookbook containing recipes favored by Justices and their families throughout the Court’s history. It will also include anecdotal material about food traditions at the Court. Lectures and educational programs presented by the Society have also increased in number and variety since the Society was created. Trustee Kenneth Geller chaired the Program Committee for more than a decade. Although most of the programs are conducted in Washington D.C., a number have been produced in other areas of the country

Photos by [email protected] [email protected] by Photos on an occasional basis. These programs include the Leon Silverman Lecture Series, the Frank C. Jones Supreme Court Reenactments, The Summer Institute for Teachers, and the National Heritage Lecture as well as cooperative programs given in conjunction with other organizations. Beyond these activities, the Society provides signifi cant fi nancial support for the Supreme Court Fellows Program inspired by Chief Justice Burger. This program is administered by the Offi ce of the Counselor to the Chief Justice, and the Robert Anello (right) was congratulated by Chief Justice Rob- Society is very grateful to Jeff rey Minear, Counselor to the erts for his service as the National Membership Chair. Chief Justice for his oversight. Mr. Minear and the members convened at 6:30 PM by President Joseph. He was joined of his staff provide vital support to the Society throughout by Chair of the Board Ralph the year and contribute greatly Lancaster, Vice Presidents, to the success of the Society’s Dorothy Goldman and Chilton endeavors. Varner, Secretary Philip The Society also works with Kessler and General Counsel the Offi ce of the Curator of Bob Juceam. President Joseph the Court under the direction reported to the members of of Curator Catherine Fitts the Board of Trustees on the in pursuit of the Acquisitions activities of the Society during Program. Ms. Fitts works the past year, and referring closely with Vice President to some of the formative Dorothy Goldman who chairs activities and eff orts of the the Society’s Acquisitions Society. He prefaced his Committee. Together they remarks by referencing the work to identify and acquire lecture given by President items of signifi cance to the Emeritus Sexton. In that history of the Court. Acquired lecture, Sexton remarked that items become a part of the the Society had been founded The Chief Justice with Katie Recker who received an award permanent collection. Ms. through the leadership of for her membership work in Pennsylvania. Goldman is faithful and Chief Justice Burger. Indeed, diligent in this work and the records show the Society was created by a handful of shares her knowledge of and persons with a small number of members and on a shoestring experience with collecting in fi lling the role. She has been a budget. One of its fi rst and most enduring projects was the generous contributor to the Acquisitions Fund and has made publication of the Society’s Yearbook 1976. The Yearbook items of her personal collection available for display on was renamed the Journal of Supreme Court History in special occasions such as the Galas held in New York City. 1990. The original tradition of one volume per year was Under the leadership of President Justin Stanley, an expanded to three issues per year and it is now a well- endowment for the Society was created in the early 1980s. respected periodical adding signifi cantly to the scholarship The original goal was to raise $2.5 million. Over the years, on the Court. The Publications Committee currently chaired that fund has continued to grow through funds received from by Don Ayer has embarked on a series of special publications the minting of the John Marshall Commemorative Coin and in addition to the Journal, the most recent being the one- other sources. The substantial work necessary to obtain volume history of the federal judiciary. Current publications that coin was spearheaded by our current Chairman of the

4 Board Ralph Lancaster who worked tirelessly to obtain Photos by [email protected] the required support in Congress to authorize the minting of the coin. That tremendous eff ort, in which a number of other Trustees were also involved, produced approximately $2.6 million which essentially doubled the endowment fund. Careful investment has helped to increase the balance and the fund today approaches $11 million. Financial operations for the Society are carefully supervised by Treasurer Carter Phillips whose responsibilities dovetail with those of Investment Committee Chair George Adams. Development Committee Chair Robert Giuff ra spearheads the eff orts to obtain grant and other fi nancial support to underwrite the activities of the Society. He also served as the Chair of the 2016 Gala, an enormous undertaking in its own right. The Galas have become an essential part of the Society’s fundraising eff orts and Mr. Giuff ra will serve as Chair of the 2018 event. The Gift Shop on the ground fl oor of the Supreme Court building is another important aspect of the Society’s work. Careful oversight of Chief Justice Roberts presented an award to Society Vice the shop’s operation is provided by Vice President Vincent President Robert J. Giuffra, Jr., (right) for his support. C. Burke III. The shop off ers a variety of items including books about and authored by members of the Supreme Joseph asked Chief Justice Roberts and Mr. Anello to join Court and provides an important service to the hundreds of him at the podium to assist in recognizing the work of the thousands of visitors to the building each year. The shop is successful State Chairs. The following persons were present located in a beautifully-detailed space that was renovated to be recognized for achieving their goals for 2017 Fiscal in keeping with the design of the building, and Mr. Burke Year: Dale Amburn, Tennessee; Ed Harnden, Oregon; played a large role in bringing that to pass. John Houlihan, Connecticut; Randy Howry, Texas; Brian Membership recruitment is the focal point of much of the Jacobs, New York City, Katie Recker, Pennsylvania, and Society’s eff orts each year. Each year an annual membership John Tucker, Oklahoma. campaign is conducted under the direction of a National The next item of business was the election of Trustees and Chair. Robert Anello spearheaded this important work for Offi cers of the Society. Philip Kessler, Secretary and Chair the second year and he recruited leading lawyers across the of the Nominating Committee, presented the candidates country to assist in their home areas and states, thus spreading nominated for election. The fi rst nominees were candidates the outreach of the Society throughout the country. to be elected to an initial three-year term as a Trustee of the After the report on the progress of the past year, Mr. Society. Those nominated were: Paul Curnin, Greg Garre, and Gayle Wright. The Nominating Committee then presented a slate of candidates for election to an additional three-year term as a Trustee of the Society. Those nominated were: Robert Anello, Dennis Block, Norman Brothers, James R. Figliulo, David Frederick, James Gauch, William J. Haynes, Philip Kessler, Gregory Joseph, Robert Juceam, Christy Jones, Thomas Leighton, Joan Lukey, Mrs. Thurgood Marshall, Theodore Olson, John Quinn, Teresa Roseborough, Richard Schneider, Kenneth W. Starr, Jeff rey E. Stone, Theodore Ullyot, Paul Verkuil and David Weinstein. Candidates were presented for election as Offi cers and At-large Members of the Executive Committee for the term specifi ed: Chilton Varner, President for a three- year term; Vincent C. Burke III, Robert J. Giuff ra, Jr., and Mrs. Thurgood Marshall were nominated as Vice President for a three-year term; Philip Kessler, Secretary for a three-year term. Bart Dalton of the American College of Trial Lawyers (right) Those nominated for a one-year term as an At-large was recognized by Chief Justice Roberts. 42nd Annual Meeting Continued on Page 6 5 42nd annual Meeting continued from Page 5 member of the Board of Trustees were: Robert Anello, Cullen; Laurie Webb Daniel; David C. Frederick; Robert Charles J. Cooper, David G. Leitch, Teri P. McClure, J. Giuff ra, Jr.; Dorothy Tapper Goldman; William J. Jeff rey P. Minear, James W. Morris, Haynes, II; Gregory P. Joseph, III, John M. Nannes, James B. Joseph Hage Aaronson; Philip J. O’Hara, The Honorable Theodore Kessler; Ken Klukowski, Liberty B. Olson, The Honorable Leon Institute; Thomas C. Leighton, Polsky, Richard A. Schneider, and Thomson Reuters; Steven F. Molo, Seth P. Waxman. Molo Lamken; Gary P. Naftalis, Mr. Joseph resumed the podium Kramer Levin Naftalis & Frankel; and called for a motion to elect Michael H. Park; Jeff rey E. Stone, those nominated to the offi ces and McDermott Will & Emery; Chilton for the terms as indicated. A motion D. Varner, and Tal M. Weberg. was made to elect the nominees President Varner thanked all those as presented by the Nominating [email protected] by Photos who have given so generously of their Committee. The motion was time and funds to support the Society seconded. A vote was taken and the and the meeting was adjourned. nd Motion was carried. Mr. Joseph then The 42 Annual Reception was welcomed newly-elected President held in the East and West Conference Chilton Varner to the podium to Rooms. The Annual Dinner was held in conduct the awards ceremony. the Great Hall of the Court. President President Varner preceded the Emeritus Gregory Joseph welcomed awards recognition by paying tribute all present, and thanked Chief Justice to Gregory Joseph for the outstanding Roberts, the Honorary Chair of the leadership he has provided over the Society for sponsoring the event. He preceding six years. He has been then thanked the members of the Court an exemplary leader and under his who were present that evening: Chief Sandra Turley (right) who performed the Justice John G. Roberts, Jr., Justice direction the Society has achieved concert is shown with her daughter Ava many important goals. She noted that and her mother Michelle Dudley who ac- Clarence Thomas, Justice Samuel A. he became President at the time of companied the performance. Alito, Jr., Justice Ruth Bader Ginsburg, the economic depression. Faced with Justice Stephen G. Breyer and Justice the need to fi nd new funding or cut programs and activities, Sonia Sotomayor. Following the welcome, the Chief Justice he instituted the New York Gala which has become a very gave the traditional toast to the President of the United States. eff ective tool in fundraising. She gave other examples of his At the conclusion of dinner service, Annual Meeting Chair leadership, and ended by extending thanks to Mr. Joseph on Dorothy T. Goldman, gave special recognition and expressed behalf of the other Offi cers and Trustees as well as the entire thanks to Marshal Pamela Talkin and the members of her Society. She told those at the meeting that Mr. Joseph will staff who facilitated the events of the day. She observed that continue to be involved with the activities and operations of the members of the Marshal’s staff provide vital assistance the Society and will serve as President Emeritus. at every event the Society holds in the Supreme Court, and Mrs. Varner thanked Chief Justice Roberts for his support expressed thanks for all that is done to make these events as Honorary Chair of the Society and asked him to assist successful. in the awards ceremony recognizing special contributions. Ms. Goldman then introduced the after-dinner concert. The fi rst to be recognized were the Hughes-Gossett Prize Entertainment was provided by Ms. Sandra Turley. Ms. Winners for the year. The fi rst was James B. Barnes whose Turley began performing as a child and has performed article concerning Wickard v. Filburn and federal power was professionally throughout the country and abroad. She written while he was a law student, received the student performed the role of Cosette in Les Misérables on prize. The second was Professor Steven Brown of Auburn Broadway, reprising the role in China. Ms. Turley was University whose article The Girard Will Case and Twin accompanied by her mother, Michelle Dudley. Ms. Turley Landmarks of Supreme Court History received the senior presented a medley of Broadway show tunes that exhibited literary prize. the range of her musical skills and performance acumen. Her Mrs. Varner then recognized special supporters. Chief program included selections from Les Misérables, Phantom Justice Roberts assisted in handing out awards. Those of the Opera and Hamilton, among other shows, and she present to be recognized were: Robert J. Anello, Morvillo concluded the program with a moving rendition of “God Abramowitz Grand Iason and Anello; Bartholomew J. Bless America,” providing a patriotic and fi tting end to the Dalton, American College of Trial Lawyers; Richard evening.

6 Frank C. Jones Reenactment Reconsiders Goesaert v. Cleary By Robert White*

Justice Ginsburg presided over the latest installment of they worked. the Frank C. Jones reenactment series at the Court on May1, The bartenders used the “moral protectionism” of 2017. The case reenacted was the Supreme Court appeal conservative Michiganders to their own advantage: all- of the Michigan barmaids complaint in Goesaert v. Cleary male occupations paid higher wages, and excluding women (1948). Goesaert marked the fi rst occasion on which the would naturally benefi t the men of the Bartenders’ Union. Court considered how discrimination against women violates Barmaids, especially those tending their own bars or those the equal protection clause of the Fourteenth Amendment. of their mothers, immediately recognized the injustice of the “That was 1948,” refl ected Justice Ginsburg: “How far we law and sued for an injunction. The law survived the review have come.” of the Michigan courts before attorney Anne Davidow Gregory Joseph welcomed guests to the Court for the agreed to champion a federal suit. Ms. Davidow, who had event and thanked Justice Ginsburg for assuming the role been fi red from a job for wearing a suff ragist button and had of the Court for the reenactment. In opening remarks, he been denied enrollment at her chosen law school because she noted that The Women’s was female, would later Bar Association for the Photos by [email protected] remember, “I was quite District of Columbia radical in the sense that had partnered with the I couldn’t see any reason Supreme Court Historical a woman couldn’t do Society in cosponsoring anything a man could do.” the event to celebrate After the District Court the Bar Association’s upheld the Michigan law Centennial. He called in a split decision, Ms. upon Association Pre- Davidow would become sident Ms. Lorie Masters the twenty-ninth woman who spoke briefl y on to argue a case before the behalf of the Association: Supreme Court. “In looking backward, The audience at the we hope to inspire all of reenactment signaled its you—current generations approval when Judge and future generations Millett concluded that of lawyers, as well—to Justice Ginsburg, a leading move forward and to Justice Ginsburg, shown at the Bench, presided over the reenactment fi gure in the history of follow our Founders’ of Goesaert v. Cleary. Deanne Maynard (left) presented for the appel- gender discrimation law, commitment to promote lants. would be “taking the role justice, to maintain the of all nine male justices” integrity of the profession, and to promote friendship among that evening. Marshal Pamela Talkin, the fi rst woman to serve all lawyers.” as Marshal of the Supreme Court, called the Court into session. Society Trustee Judge Patricia Millett, a Circuit Judge of Ms. Deanne Maynard, a Society Trustee, took the role of the Court of Appeals for the District of Columbia Circuit, Ms. Davidow representing the appellants. Ms. Maynard gave the audience some background of the Goesaert case. co-chairs the Appellate and Supreme Court Practice Group The “Drys” (those advocating temperance) had endured at Morrison Foerster, is a former Assistant to the Solicitor the repeal of Prohibition in 1933 and enacted temperance General, and has argued thirteen cases before the Court. laws in many states like Michigan, where a constitutional She argued, as Ms. Davidow had argued, that the Michigan amendment gave the Liquor Control Commission “complete law was repugnant to the Fourteenth Amendment because it control” of alcoholic beverage traffi c. Members of the all- arbitrarily discriminated between persons similarly situated male Bartenders’ Union sought to stay in the good graces of in relation to the purpose of the statute; namely, between the Commission by cultivating a clean image. Remarking that men and women who owned or tended bars and between “discrimination can make strange bedfellows,” Judge Millett barmaids and waitresses. Ms. Maynard neither argued that described how together Drys and bartenders successfully women have a constitutional right to be in bars nor argued pressured the legislature to make it illegal for women to tend that women pour liquor the same way men do—indeed, the bar in cities of more than 50,000 people, excepting licensed appellants had testifi ed that women make better bartenders barmaids whose father or husband owned the bar in which than men do. Ms. Maynard did not ask the Court to scrutinize 7 Frank C. Jones Reenactment Continued on Page 8 Frank C. Jones Reenactment Continued from Page 7 the classifi cation because it diff erentiated between men and women, but because it did not relate to the purpose of the Michigan law. She observed that identifying that purpose would be diffi cult because the legislature had off ered no reasoning in enacting the law. Judge Simons, of the District Court, had supposed, “If the court is able to perceive that there is some reasonable ground for making this classifi cation, aren’t our hands then tied so far as interfering with the operation of the state law?” Ms. Maynard relied on the law’s proviso for wives and daughters of bar owners to rule out every reasonable ground she could imagine, as Ms. Davidow had in 1948. She argued that the purpose of the law could not be to protect women from alcohol or the men who drink it because the law allowed women Judge Patricia Millett (left) of the U.S. Court of Appeals for the D. C. Circuit, to freely drink, sell, and serve alcohol however presented an historical overview of the case. Shown to the right is Marshal they pleased and did not require that any man Pamela Talkin, the current Marshal of the Court and to date, the only woman supervise a barmaid behind her husband’s to hold that office. bar. What purpose could the law reasonably Law Center, and has argued twenty-one cases before the promote by excluding the daughter of a female bar owner Court. The crowd became quieter as Mr. Englert laid out the from being a barmaid while allowing the daughter of a same defense that Mr. Shepherd had supplied, which Justice male bar owner to work as a barmaid? She concluded that Ginsburg summarized as “Anything goes. Anything the the true explanation, involved the economic interests of the legislature wants to do with regard to women’s occupations Bartenders’ Union, but the lower Court had refused to admit as long as someone could conceive of some basis for it— such speculation. that’s good enough. Anything goes.” Mr. Englert responded Mr. Roy Englert, Jr., stepped to the podium in the place of by saying that such “reasonable” justifi cation for his Mr. Edmund Shepherd to represent members of the Liquor argument could be found in the opinion of the District Court. Control Commission. Mr. Englert is an appellate litigator at, Mr. Englert commented, that “it is conceivable that the and co-founder of, Robbins Russell and a member of the Legislature was of the opinion that a grave social problem Society's Program Committee. He is a former Assistant to existed because of the presence of female bartenders in places the Solicitor General, and also is an Adjunct Professor at the where liquor was served in the larger cities of Michigan. It Appellate Litigation Clinic at the Georgetown University may have been the Legislature’s opinion that this problem would be mitigated to the vanishing point in those places where a male licensee was responsible for the condition and the decorum maintained in his establishment. It may have determined that the self-interest of male licensees in protecting the immediate members of their families would generally insure a more Photos by [email protected] [email protected] by Photos wholesome atmosphere in such establishments. The Legislature may also have considered the likelihood that a male licensee could provide protection for his wife or daughter that would be beyond the capacity of a woman The theme of the case was the right of women to tend bar. During the reception following the reenactment a female bartender assisted guests. licensee to provide for herself 8 or her daughter. who owned bars; the The power of the validity of the other Legislature to make classifi cations was special provision considered “beyond for the protection of question.” The de- women is not denied.” cision regarding ge- He further noted, nder classifi cations that the police power was so unremarkable of the state was so at the time that Justice broad that a law Ginsburg remembered, would survive if a “In the constitutional reasonable person law casebook used might have thought at the law school I that its classifi cations attended in the late could advance a 1950s, Goesaert v. legitimate purpose, Cleary was off ered as regardless of whether Deanne Maynard and Roy Englert, Jr. provided engaging arguments in the re- an illustration of the enactment. Ms. Maynard represented Goesaert and Mr. Englert represented the or not the legislature Liquor Control Commission. really had reasoned so Photos by [email protected] unwisely. Moreover, Mr. Englert reminded the Court that it had repeatedly upheld gender classifi cations and that traditionally courts had allowed legislatures to regulate the traffi c of alcohol-related occupations more restrictively than other occupations. At the conclusion of oral argument, Justice Ginsburg said, “I will not attempt to substitute a diff erent opinion for the one that the Court wrote in 1948. Instead, I will speak of the fate of the Court’s affi rmation in Goesaert that the legislature may, in Justice Frankfurter’s words, ‘draw a sharp line between the sexes.’” The Court upheld the Michigan law 6-3 in 1948, with the three dissenters Mr. Englert presents oral argument while Ms. Maynard confers with her objecting only to the discrimination against women colleague at counsel table.

Court’s retreat from the Lochner decision championing liberty of contract. Not a word was said in the casebook, or by my professor, about the blatant gender-based discrimination infecting the Michigan law.” Contemporary views aside, modern feminists may count the Goesaert plaintiffs among their trailblazers for having been the fi rst to argue before the Supreme Court that discrimination against women violates the Fourteenth Amendment. The Court would not subject gender discrimination to intermediate scrutiny until deciding Reed v. Reed (1971), by which point Congress would have already “largely outlawed gender-based occupational exclusions” with the Civil Rights Act of 1964, and the Michigan law that the Goesaert decision upheld was fully dismantled by 1956. Justice Ginsburg closed the evening observing that by 1995, women were 53.5% of the nation’s bartenders, and by 2012, 59.9%.

Guests enjoy the buffet following the reenactment. In the fore- *Robert White assists with Society publications and ground on the right are two Society members, Mark Schwim- membership work. mer behind Marcia Sowles (right) 9 Salmon P. Chase and John Marshall Portraits on U.S. Currency By Jeff Brueggeman*

Salmon P. Chase is well known as the sixth Chief Justice. smaller sized currency starting in 1928. Only a few hundred But his more enduring legacy may be as the man who started of these notes remain in the hands of private collectors, but the era of modern paper money in the United States. Prior some are in the collections of the Smithsonian Institution to his appointment to the Court, Chase served as Lincoln’s and the Federal Reserve Bank itself. Secretary of the Treasury and it was under his direction as The only other Chief Justice to appear on United States Secretary, that paper money was fi rst issued by the U.S. paper money was John Marshall, who also served as government. Secretary of State. John Marshall’s image appeared on the $20 Treasury Notes of 1890 and 1891. The 1890 note had a more ornate reverse, and the 1891 note was designed with a more open back design. The Society owns an example of the 1890 note thanks to the generosity of Jordan Cherrick. As with most design changes in United States currency, the switch from the ornate back to the open back was said to be done to thwart counterfeiting eff orts.

Images by Jeff Brueggeman Jeff Images by Treasury Notes were odd notes in United States monetary history in that they were redeemable for either Chief Justice John Marshall’s image appeared on the fi rst $500 bill gold or silver. There was much populist political pressure issued by the Federal Reserve system in 1918. to replace the gold standard with a bi-metallic standard of silver and gold. This would have increased the money Paper money had ended in hyperinfl ation in colonial times, supply, which would have been good for the silver industry when the only paper money was issued by individual banks and debtors, but bad for bankers who made loans. Marshall and municipalities. This led to many diffi culties because was the only fi gure on these notes who was not a Civil War notes had to be redeemed at the location of the issuer. Any era military fi gure or cabinet member. Marshall also was the note which was not strictly local was traded at a discount portrait for the fi rst $500 bill issued by the Federal Reserve because the reliability of a non-local bank was often diffi cult system in 1918. Roughly one hundred of these remain in to ascertain. Under Chase’s direction, the Treasury started to private hands today. produce the type of notes known as Legal Tender. These notes were obligations on the United States government rather than on any one bank. Chase placed his own portrait on the fi rst $1 bill made in the United States in 1862. Because smaller notes saw greater circulation than notes of larger denominations, his portrait became well known. An example of this note was donated by Jordan Cherrick to the Supreme Court Historical Society and is now in the collection. Before the Federal Reserve system was created in 1913, The reverse of the $500 bill featuring John Marshall’s portrait on the United States had several classes of paper money in the front contains an image of President Washington on horse- circulation. Some notes were backed by gold, some by back. silver and others still by the general assets of the United States. At present these variously named notes have been Notes Can be found online on our website at removed from circulation and all paper money is backed by www.supremecourthistory.org/publications/ under the the assets of the Federal Reserve system. Chase’s portrait Quarterly section. was also placed on the fi rst $10,000 Federal Reserve Note. These notes however were never in general circulation, but *Jeff Brueggeman received his PhD from the University were used primarily to transfer large amounts of money of Illinois at Urbana-Champaign. He is the membership between banks. None of these 1913 notes are privately secretary and librarian for the Society of Paper Money owned. Chase’s portrait remained on the $10,000 Federal Collectors. He is the proprietor of Action Currency and can Reserve Note when the United States moved to the modern be found at www.actioncurrency.com. 10 NEW SUPREME COURT HISTORICAL SOCIETY MEMBERSHIPS April 1, 2017 through June 30, 2017

ALABAMA Gregory G. Garre Walter Bush, Chatham Nancy Erickson, Brooklyn Howard Klein, Philadelphia Chris Lavorato, Austin Steven Brown, Auburn William S. Greenberg Edward D. McCarthy, Cambridge Benjamin Fischer, New York Frank A. Mayer III, Philadelphia Nicole LeClaire, Houston Thomas Summers Hale, Birmingham Sheila Slocum Hollis Abbye Meyer, Northampton Stanley H. Fischer, Great Neck Terri Pawelski, Philadelphia Harriet Miers, Dallas Daryl A. Libow Alan D. Rose, Boston Jeff rey M. Freedman, Buff alo David Richman, Philadelphia Victoria Palacios, Laredo ARIZONA James O. Rogers Hector Geribon, New York Jeff rey Rosen, Philadelphia Jessica Rader, Euless Heidi Bonfante, Phoenix Thomas G. Saunders MICHIGAN Daniel M. Gitner, New York Alicia Ross, New Milford Charles C. 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