Ashton Embry and the Supreme Court Leak Scandap

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HONORARY CHAIRMAN William H. Rehnquist HONORARY TRUSTEE Byron R. Whire CHAIRMAN Dwight D. Opperman PRESIDENT Leo n Silverman VI CE PRESIDENTS Vincent C. Burke, Jr. Dorothy Tapper Goldman Frank C. Jones E. Barrett Pretryman. Jr. SECRETARY Virginia Warren Daly TREASURER Sheldon S. Cohen

TRUSTEES George R. Adams Charles O. Galvin Gordon O. Pehrson Peter G. Angelos Kenneth S. Geller Leo n Polsky E. Osborne Ayscue, Jr. Frank B. Gilbert Harry M. R.easone r Vi ctor Bartaglia James L. Goldman Charles B. R.en frew Herman Belz Joh n D. Gordan, JJJ William Bradford Re ynolds Barbara A. Black Geoffrey C. Haza rd , Jr. S311 y Rider Hugo L. Black, Jr. Jud ith Richards H ope C~ro l A. Risher Frank Boardman Ruth lnsel Harvey Rishikof V er~ Brown Robb M. Jones Jona th an C. Rose Wade Burger James J. Kilpa tri ck Jerold S. Solovy Patricia Dwinnell Buder Peter A. Know les Kenneth Starr Benjamin R. Civillmi Philip Allen La covara Cathleen Douglas Stone Andrew M. Coo rs Gene W. Lafi tte Seth P. \Vaxman William T. Coleman, .Ir. Ralph I. Lancas ter, Jr. Agnes N. Willi ams Chades J. Cooper Je rome B. Libin Li vely Wilson F. Elwood Davis Maureen E. Mahoney W. Foster \Vollen George Didden JJJ H oward T. Markey Charlron Dietz Mrs. Thurgood Marshall John T . Dolan Thurgood Marshall, Jr. Robert E. Ju ceam James C. Duff Vincenr L. McK usick General CO" rISel Willi am Edlund Francis J. McNamara, J r. John C. EI;1I11 Josep h R. ModCI'ow David T. Pride James D. EJlis James W. Morris, III Execu ti ve Di reelor Migue l A. Esrrada John M. Nannes Kathleen Shurtleff Thomas W. Evans Srephen W. N ea lon Assislant Direelor Wayne Fisher James B. O'Hara JOURNAL OF SUPREME COURT HISTORY

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THE SUPREME COURT HISTORICAL SOCIETY is a private non-profit organization, incorporated in the District of Columbia in '974. The Society is dedicated to the collection and preservation of the history of the Supreme Court of the United States. The Society seeks to accomplisn its mission by supporting historical research, collecting antiques and artifacts relating to the Court's history, and publisning books and other materials that increase public awareness of the Court's contribution to our nation's 'rich constitutional heritage. Since '975, the Society has been publishing a Quarterly newsletter, distributed to its membership, which contains short historical pieces o n the Court and articles detailing the Society's programs and activities. In '976, the Society began publishing an annual collec tion of scholarly articles on the Court's history entitled the Yearbook, which was renamed the Journal oj Supreme Court History in 1990 and became a trimester publication in '999, The Society initiated the Documentary History of the Supreme Court of the United States, 1789-1800 in [977 with a matching grant from the National Historical Publications and Records Commission (NHPRC). The Supreme Court became a cospon sor in 1979. Since that time the project has completed six volumes. The Society has also copublished severa l books with CQ Pmss. The Supreme Court Justices: Illustrated Biographies, 1789-1995 is a 588-page book that was developed by the Society and features biographies of all /08 Justices, as well as rare photographs and other illustrations. In 2000, the Society cosponsored the publication of We the Students: Supreme Court Cases for and About Students, a high school textbook written by Jamin B. Raskin. Also in 2000, the Society copublished Supreme Court Decisions and Women's Rights: Milestones to Equality, a guide to gender law cases developed by the Society for use by high school students and undergraduates. In addition to its research/ publications projects, the Society is now cooperating with the Federal Judicial Center on a pilot oral history project on the Supreme Court. The Society is also conducting an active acquisitions program, which has contributed substan tially to the complerion of the Court's permanent collection of busts and portraits, as well as period furnishings, private papers, and other artifacts and memorabilia relating to the Court's history. These materials are incorporated into displays prepared by the Court Curator's Office for the benefit of the Court's one million annual visitors. The Society also funds outside research, awards cash prizes to promote scholarship on the Court, and sponsors or cosponsors various lecture series and other educational col loquia to further public understanding of the Court and its history. The Society has approximately 5, 100 members whose financial support and volunteer participation in the Society's standing and ad hoc committees enables the organization to function. These committees report to an elected Board of Trustees and an Executi ve Committee, the latter of which is principally responsible for policy decisions and for supervising the Society's permanent staff. Requests for additional information should be directed to the Society's headquarters at 224 East Capitol Street. NE, Washington, D .C. 20003, telephone (202) 543-0400, or to the Society's website at www.supremecourthistory.org.

The Society h(l s bee n dncrmincd eligible ro recelve t:1X d cdllcrible gifts under sccrion 50 1 (c) (J ) under rhe Inrcrn:ll Revenue Code. JOURNAl OF SUPREME COURT HISTORY

zooz, v o l, z7, no . I

I NTRODUCTION Melvin l. UroJsky v

ARTICLES

The Supreme Court in the Nineteenth Century William H. Rehnquisl

The Clerk, the Thief, His Life as a Baker: Ashton Embry and the Supreme Court Leak Sca ndal

Jolm B. OW(I1S

Human D ig niry and the Claim of Meaning: Atheni an Tragic Drama and Supreme Court Opinions Jam es Boyd White 45

The Judi cial Bookshelf D . Grier Slephenson, Jr.

Review of Edward A. Purcell , J c, Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of Federal Courts in T wentieth-CentUlJ America Melvin l. UroJsky

CONTRIBUTORS

PHOTO CREDITS

Readers who start at the beginning of of America's best-known amateur historians, each issue will know that a recurring theme in the Chief Justice of the United States, who in my introductions is how the contents of this his lecture to the Society'S Annual Meeting Journal never fail to amaze and instruct me as looked at what is one of the truly great consti to the innumerable aspects of history they il tutional transformations in American history, lustrate. When many of us were in college, the evolution of the Supreme Court from a graduate school or law school, the history of "second-class partner" in the scheme of gov the Court was essentially the history of its ernment to what we believe the Framers truly major decisions, with an occasional anecdote envisioned, a judicial system as one of the thrown in about Holmes or Brandeis or Black. co-equal branches of a tri-partite system. We never analyzed cases for their literary Chief Justice Rehnquist's concluding anec content, only for their jurisprudential argu dote-about Theodore Roosevelt, Oliver ments; in fact, I believe the general assump Wendell Holmes, Jr., and the Insular Cases tion among most of my professors was that should serve all of us as a useful reminder the only stylist ever to have served on the about the transitory nature of certain "great" Court was Oliver Wendell Holmes, Jr., and issues. that too often his style merely masked a defi James Boyd White gives us a most un ciency in legal analysis. Moreover, once we usual article, one that found me searching had read a case, we rarely, if ever, looked be back in my memory to my Humanities I yond the date of the holding. Oh, yes, the In course at Columbia, in an effort (not alto come Tax Cases spawned a constitutional gether successful, I might \ldd) to recall what I amendment, but no one taught-nor did we had learned about Greek drama. And if my ask-what happened to laundry-owner Curt law and history professors never analyzed Mu Iler after he lost his case. cases for their literary content, then I can as We feature in this issue an article by one sure you as well that my literature teachers

v vi JOURNAL OF SUPREME COURT HISTORY never even considered using a law case in a leak, and where a clerk was suspected of their courses. having been the culprit. In terms of literature, there have been Finally, we have reviews of books abollt several best-selling mystery novels about Su the Court. Grier Stephenson weighs in with preme Court clerks; the murders they get in another well-written and considered evalua volved in, and the dire results of their leaking tion of current books, and I have added an word of future decisions. But in the more than essay review on a case that every law student a century since some members of the Court confronts, but whose message and continuing began using clerks, there would appear to impact is rarely understood. have been nary a leak from Chambers. We are Again, it is a rich feast, and we invite you most grateful to John B. Owens for unearthing to enjoy! one of the very few examples when there was The Supreme Court in the Nineteenth Century*

WILLIAM H. REHNQUIST

At the beginning of the nineteenth century, we find a Court which has not yet found its role, and whose principal impact is deciding which litigant wins in a particular lawsuit. Chief Justice John Marshall, appointed in 1801, changes that; he and his successor, Roger B. Taney, are the dominant figures in the Courts over which they preside. From 1801 until 1864--sixty-three years-the nation had only two Chief Justices; during the same time, it had fifteen presidents. In the latter part of the nineteenth century, the Chief Justices are less dominant and influential, sharing their authority with several notable Associate Justices. By the end of the century, the Court is beginning to wrestle with the many problems facing the nation after a little more than a century of existence. Today, the federal judiciary, headed by about six per year, because there was so little the Supreme Court, is regarded as a co-equal business to do. The Justices met in the na branch of the federal government, along with tional capital for only a few weeks each year. Congress and the Executive Branch. But in They spent the rest of their time riding circuit the first decade of the new republic-from and sitting as trial judges in their respective 1790 to 1800- the judiciary was very much a circuits, from Portsmouth, New Hampshire to junior partner. The Supreme Court's pres Savannah, Georgia. ent-day status is due in large part to John Mar John Jay, the first Chief Justice, was a shall, who served as Chief Justice for rather elegant New Yorker. He was appointed thirty-four years, from 1801 until 1835. by George Washington in 1789. In the East During the first decade of the new repub and West conference rooms at the Supreme lic, the Supreme Court got off to a very slow Court, there are portraits of each of these early start. It decided a total of sixty cases in this Chief Justices, and only Jay is shown wearing ten-year period-not sixty cases per year, but a red robe. He had held most of the important 2 JOURNAL OF SUPREME COURT HISTORY

In the decade after the Supreme Court came into existence, it decided a total of sixty cases-about six per year-because there was so little business at hand. However, the Justices kept busy sitting as trial judges in their respective circuits. To fulfill their obligations on circuit, they had to endure bumpy stagecoach rides, hazardous conditions, and long stretches away from their families.

positions in the state government of New John Adams, who succeeded George Wash York, and was half English and half Dutch ington. He left for France in the fall of 1799, just the right combination for political success and fell ill while there. He submitted his resig in New York at that time. nation to President Adams in December 1800. In 1794, Washington decided that he Thomas Jefferson had defeated John needed a special ambassador to go to the Adams in the presidential election of 1800, Court of St. James and negotiate with Great but in those days the term of the outgoing presi Britain various disputes that had come up as a dent expired not on January 20, as it does today, result of the Treaty of Paris of 1783, which but on March 4, and the terms of members of had ended the Revolutionary War. He picked Congress were similarly longer. Thus, for sev John Jay. Jay sailed for England in the spring eral months after they knew the outcome of the of 1794, and did not return until the summer election, John Adams and the Federalists con of 1795. There is no indication that he was tinued to control the Presidency and both houses greatly missed in the work of the Supreme of Congress. Court during this time. When he returned, he Adams first wanted to reappoint John Jay found that he had been elected Governor of as Chief Justice, but Jay declined. Adams ulti New York in absentia, and resigned the Chief mately chose as Ellsworth's successor John Justiceship to assume what he regarded as the Marshall, a Virginia Federalist of considerably more important job. different stripe than Jefferson. In his "Autobio The next Chief Justice who actually graphical Sketch," Marshall recounted the cir served was Oliver Ellsworth of Connecticut, cumstances of his appointment: who had been a delegate to the Constitutional Convention and the chairman of the Senate When I waited on the President with Judiciary Committee in the First Congress. Mr. Jay's letter declining the ap But Ellsworth, too, was selected for a special pointment he said thoughtfully mission-this time to France-by President "Who shall I nominate now"? I re- THE SUPREME COURT IN THE NINETEENTH CENTURY 3

This striking robe was worn by the first Chief Justice, John Jay. An elegant New Yorker, Jay negotiated the Treaty of Paris with Great Britain in 1783 while still a member of the Supreme Court.

plied that I could not tell, as I sup Confirmation hearings in those days not being posed that his objection to Judge what they are today, Marshall was quickly [Paterson] remained. He said in a de confirmed by the Senate on January 27, 180 I. cided tone "I shall not nominate To illu strate the low estate of the Su him." After a moment's hesitation, preme Court at this time, the federal govern he said, "I believe J must nominate ment was in the process of moving from Phil you." adelphia, which had been the capital for ten 4 JOURNAL OF SUPREME COURT HISTORY

The Supreme Court had such low stature in the early nineteenth century that when the government moved from Philadelphia to Washington, DC, no provision was made for housing the Court. At the last minute, a base ment room was set aside in the new Capitol building (pictured), where the Supreme Court sat for eight years. years, to the new capital of Washington in the company of artillery in the Battles of District of Columbia. The White House Brandywine and Monmouth during the Rev then called the President's House-was fin olutionary War. He had also suffered through ished, and John Adams was the first president the terrible winter at Valley Forge with to occupy it. The Capitol building had been George Washington and the rest of the Conti constructed on Capitol Hill, and was ready for nental troops. It was this experience that led Congress, though it was not nearly the build him to remark that he looked upon "America ing we know today as the Capitol. But no pro as my country, and Congress as my govern vision whatever had been made for housing ment." This is not an unusual sentiment the Supreme Court. Finally, at the last minute, today, to be sure, but quite an unusual senti a room in the basement of the Capitol was set ment for a Virginian at that time. aside for the third branch. The Court would sit After mustering out of the service, Mar in that rather undistinguished environment for shall studied law very briefly, attending the eight years. lectures of George Wythe in Williamsburg, John Marshall was born in the Blue and was admitted to the Virginia Bar. In 1782 Ridge foothills of Virginia, about fifty miles he was elected to the Virginia legislature, west of present-day Washington. He had serving for two years before he resigned to re very little formal education. However, by the turn to his law practice. He was again elected time he reached twenty-five years of age, he to the Virginia legislature in 1787, where, de had served as a captain commanding a line spite the tide of Anti-Federalist sentiment in THE SUPREME COURT IN THE NINETEENTH CENTURY 5

Virginia, he was an ardent supporter of ratifi pointment as Chief Justice he was serving as cation of the Constitution. Adams' Secretary of State. He was much During the next several years, Marshall better known as a politician than as a legal continued in the Virginia assembly and with scholar. his law practice. He turned down President When he became Chief Justice in 1801 , Washington's offer to become Attorney Gen the Supreme Court of the United States was eral, but in 1797 agreed to President Adams' very much like other courts of last resort, fi request that he serve as a member of a delega nally deciding cases between litigants but oth tion sent to France to resolve the mounting erwise contributing very little to the manner in tensions between the two countries. This epi which the country was governed. Marshall's sode, of course, came to be known as "the principal claim to fame as Chief Justice XYZ Affair." though by no means his only one-is his After returning to Richmond, Marshall authoring the Court's opinion in the famous agreed to run for Congress at the urging of case of Marbury v. Madison. When it was de George Washington. During Marshall's elec cided in 1803, two years after he became tion campaign, President Adams offered him Chief Justice, he turned what otherwise would a seat as Associate Justice of the Supreme have been an obscure case into the fountain Court. Marshall declined and Bushrod Wash head of all of our present-day constitutional ington, President Washi ngton's nephew, was law. appointed instead. Marshall was elected to The case arose out of a suit by William Congress in 1799, and at the time of his ap- Marbury, who had been nominated and con firmed as a Justice of the Peace in the District of Columbia, against James Madison, whom Thomas Jefferson had appointed as his Secre tary of State. Although Marbury had been nominated and confirmed, his commission had not been issued by the time of the change in administration, and James Madison refused to issue it. Marbury contended that once he had been nominated by the president and confirmed by the Senate, the issuance of his commission was simply a ministerial task for the Secretary of State who had no choice but to issue it. He brought an original action in the Supreme Court, relying on a provision of the Judiciary Act of 1789 that said that the Supreme Court could issue writs of mandamus to any federal official where appropriate; he said that James Madison was a public official, which no one The Supreme Court did not contribute much to the denied, and that a writ of mandamus-a rec manner in which the country was governed-it ognized judicial writ available to require pub merely decided cases between litigants-until John lic officials to perform their duty-was appro Marshall became Chief Justice in 1801. Marshall's celebrated decision in Marbury v. Madison (1803) priate in his case. established the principle of judicial review, signifi Marshall's opinion for the Court is di cantly bolstering the Supreme Court's authority. Pic tured is William Marbury, whose commission to be vided into several parts. He first addresses the Justice of the Peace was at issue in the case. question of whether one nominated and con- 6 JOURNAL OF SUPREME COURT HISTORY firmed by the Senate is entitled to recei ve his people in those states, and the courts have al commission without further ado, so to speak. ways had the final say in interpreting the He concludes quite reasonably that Marbury provisions of a written agreement. Therefore, is entitled to his commission, and goes on to it is the federal courts, and particularly the Su say that if Marbury has this right, surely the preme Court, which is the ultimate arbiter of law must afford him a remedy. And, says the meaning of the Constitution. The Court Marshall, that remedy is a writ of mandamus, ruled that the federal judiciary had the author which exists just for this purpose. ity and responsibility to strike down those But now comes the hidden-ball play. The laws that violate the Constitution. next question Marshall asks in his opinion is The opinion in Marbury v. Madison is a whether it is proper for the Supreme Court to remarkable example of judicial statesmanship. issue a writ of mandamus in this case. He The Court says that Marbury is entitled to his agrees with Marbury that Congress in the Ju commission, and Madison is wrong to with diciary Act of 1789 authorized the Supreme hold it. It says that this is the sort of ministerial COUi1 to issue writs in such a case. But wait a duty of a public official such as Madison that minute, he says: Look at Article III of the can be enforced by a writ of mandamus. But it Constitution. It says that the original jurisdic concludes by saying that Congress-in grant tion of the Supreme Court- that is, cases that ing the Supreme Court the power to issue a writ may be brought in the Supreme Court in the of mandamus in a case like this-has run afoul first instance, without ever having gone to an of the original jurisdiction provision of the Su other court-is limited to lawsuits between preme Court contained in Article III of the the states and lawsuits involving ambassadors Constitution. Madison and Jefferson are ver and other foreign ministers. Clearly this suit is bally chastised, but it turns out that there is not within the original jurisdiction provided nothing that the Supreme Court can do about it by Article III of the Constitution. because Congress tried to give the Supreme So, Marshall goes on to say, we have an Court more authority than the Constitution act of Congress saying the Supreme Court would permit. The doctrine of judicial re may do a particular thing, and the Constitu view-the authority of federal courts to de tion saying it may not. What is a. court then to clare legislative acts unconstitutional-is es do under a system like ours? Marshall says tablished, but in such a self-denying way that it that, unlike the British Parliament, which is is the Court's authority that is cut back. supreme, no branch of the federal govern During the thirty-four years he served as ment-whether it is the legislative, the execu Chief Justice, Marshall wrote most of the im tive, or the judiciary-is supreme. The Con portant opinions that the Court decided. In stitution is supreme, because it has been Gibbons v. Ogden, decided in J 824, he wrote adopted by the people in the various states, the opinion adopting a broad construction of and it delegates particular powers to each of the power of Congress under its authority to the three branches. If any of these three regulate interstate commerce contained in Ar branches may exceed their delegated author ticle I of the Constitution. In the Dartmouth ity, the whole idea of a written constitution is College case, he gave a generous interpreta meaningless. So the Constitution must prevail tion to the prohibition in the Constitution over an act of Congress that is inconsistent against state impairment of the obligation of with the Constitution. contract. One cannot name all of the signifi But who will have the final say as to what cant opinions authored by Marshall. Suffice it the Constitution means in a situation like this? to say that by the time of Marshall's death in Marshall says that the Constitution is a written 1835, the Supreme Court was a fuJI partner in agreement among the severa] states and the the federal government. THE SUPREME COURT IN THE NINETEENTH CENTURY 7

What was the secret of John Marshal\' s during their few weeks in Washington. If it success? It was not that he was "present at the were raining, they would have a glass of wine creation," because he was not; he was not the with dinner. They looked forward to this rit first Chief Justice, but the fourth. John Jay and ual, and one day were expressing regret that Oliver Ellsworth were both able jurists by the the weather outside was fair and sunny. But standards of their time, but neither of them Marshall said "somewhere in our broad juris had the vision of constitutional government diction it must surely be raining," and from that Marshall did. then on they had a glass of wine with dinner Marshall was certainly no more "learned every day. in the law" than his colleagues on the Court, One occasionally hears the expression and there were probably several of those who that an institution is the lengthened shadow of would have been thought more learned than an individual. It may be ri sky to suggest that he was. He also faced a built-in headwind any institution which has endured for two hun against his views for the first twenty-four dred ten years, the way the Supreme Court of years of his tenure as Chief Justice: during the United States has, could be the lengthened this period the "Virginia dynasty" of presi shadow of anyone individual; but surely there dents-Thomas Jefferson, James Madison, is only one individual who coul.d possibly and James Monroe-were in office, and these qualify for this distinction, and that individual presidents had quite a different view of the re is John Marshall. After his retirement from the lationship between the federal and state gov Presidency, John Adams said that "the proud ernments than Marshall did. But the Justices est act of my life was the gift of John Marshall they appointed tended eventually to side with to the people of the United States." Marshall, rather than to express the views of At the time of Marshall's death, Andrew the Virginia dynasty. Surely exhibit A in this Jackson was serving his second term as Presi category is Joseph Story of Massachusetts, dent of the United States. He appointed his who was appointed by James Madison in loyal lieutenant Roger B. Taney of Maryland 1811 but became Marshall's right bower dur to succeed Marshall as Chief Justice. Taney ing his long tenure on the Court. had a first-rate legal mind and was a clear, I think Marshall's success arose from forceful writer. Like Marshall, he did not be several sources. He had a remarkable ability lieve in legal learning for its own sake, and he to reason from general principles, such as realized that constitutional law required not those set forth in the Constitution, to conclu only legal analysis, but also vision and com sions based on those principles. And in a day mon sense. The Taney Court, over which he when legal writing was obscured and be presided for twenty-eight years, was less na fogged with technical jargon, he was able to tional ist in its orientation than was the Mar write clearly and cogently. shall Court. The principal doctrines of the But--every bit as important-I think Marshall Court remained in place, but they Marshall probably had an outgoing personal were tempered by a greater will ingness to up ity and was very well liked by those he moved hold state authority. In the Charles River among. Here his service in the military proba Bridge case, for instance, decided in 1837, the bly made him a more engaging personality Court, in an opinion by Taney, limited the than someone who had simply drafted writs of scope of the earlier Marshall Court decision in replevin for hi s entire adult career. The famil the Dartmouth College case, saying that im iar story of the dinner ritual when the Justices plied covenants would not be read into state were in Washington perhaps illustrates thi s contracts for purposes of the impairment of point. The Justices all stayed at the same the Contracts Clause. In Cooley v. The Board boarding house, and had their meals together of Wardens, the Court held that some activi- 8 JOURNAL OF SUPREME COURT HISTORY

The monopoly of this chartered toll bridge, built in the 1780s to link Boston with Cambridge, Massachusetts, was later challenged by a rival bridge. The result was a landmark Supreme Court decision, Charles River Bridge v. Warren Bridge (1837), in which the Taney Court established the modern doctrine on contracts.

ties, even though within the scope of congres pointed several new Justices to the Court sional authority over commerce, could none whose opinions would have little in common theless be regulated by the states until with those of Taney. But one of them, Samuel Congress had acted. There were dissents on F. Miller, left this memento of his feeling for both ends of this case; Justice John McLean of the aged Chief Justice: Ohio would accord no such power to the States, and Justice Daniel of Virginia-surely When I came to Washington, I had one of the most extreme champions of states' never looked upon the face of Judge rights ever to sit on tile Court-would have al Taney, but I knew of him. I remem lowed the state regulation even though it was bered that he had attempted to throt contrary to an act of Congress. tle the Bank of the United States, and Taney's long and otherwise admirable I hated him for it. I remembered that career is, unfortunately, marred by his opin he took his seat upon the Bench, as J ion in the ill-starred Dred Scott case, in which beJjeved, in reward for what he had he opined that even free blacks could not be done in that connection, and I hated citizens for purposes of diversity jurisdiction, him for that. He had been the chief and that Congress lacked the constitutional spokesman of the Court in the Dred authority to ban slavery in territories that had Scott case, and 1 hated him for that. not yet been admitted as states. Charles Evans But from my first acquaintance with Hughes rightly described the Dred Scott deci him I realized that these feelings to sion as a "self-inflicted wound" from which it ward him were but the suggestions of took the Court at least a generation to re the worse elements of our nature; for cover. before the first [T]erm of my service Towards the end of Taney's tenure, in the Court had passed I more than Abraham Lincoln became president and ap- liked him; J loved him. And after all THE SUPREME COURT IN THE NINETEENTH CENTURY 9

President Abraham Lincoln chose former Secretary of the Treasury Salmon P. Chase (above) to be Chief Jus tice in 1864 because he expected him to uphold the measures the government had taken to finance the Civil War by making paper money legal tender. Lincoln's fears that Chase would be unable to relinquish his presi dential ambitions proved well founded. 10 JOURNAL OF SUPREME COURT HISTORY

that has been said of that great, good the presidency never left him. He authorized man, I stand always ready to say th at the submission of his name as a presidential conscience was his guide and sense candidate to the Republican convention in of duty his principle. 1868, and when that convention turned to U. S. Grant, he authorized the submission of Taney was in his mid-eighties, and his name to the Democratic convention. There looked feeble, when he swore in Abraham he actually received a few votes before losing Lincoln as president in 1861 . But he contin to Horatio Seymour of New York, who in turn ued to serve as Chief Justice until his death in lost the election to Grant. In 1872, Chase j 864. His long tenure prompted Ben Wade, an made inquiries not only of th e Republican abolitionist Senator from Ohio, to remark that convention, but also of the Liberal Republican he had prayed every night during the Bu convention in Cincinnati, a small splinter chanan administration that Chief Justice group of the party. Neither one was interested . Taney's life might be spared until a new presi Salmon Chase was not a great Chief Jus dent could appoint a successor. But eventually tice, and from his time until the end of the the Senator worried that he had overdone it, nineteenth century, the COUIt would be as because Taney lived well into the next admin much influenced by several of its abler Asso istration as well. Actually, Taney remained on ciate Justices as by its Chief Justice. Three of the job because he needed the income to sup these come to mind. port himself; at that time, no provision was Samuel Freeman Miller, already men made for pensions for federal judges. tioned, was born in the bluegrass country of Lincoln now had an oppoItunity to ap Kentucky in 1816. For ten years he practiced point a successor, and he pondered several medicine, but then tired of hi s work as a doc different choices. Finally, in an act that epito tor, studying law while continuing to practice mizes his absolute magnanimity, he nomi medicine. He was admitted to practice in Ken nated hi s former Secretary of the Treasury, tucky in 1847, but three years later moved to Salmon P. Chase. While in th at office, Chase Keokuk, Iowa, because he wanted to live in a had committed the unpardonable si n of seek free state rather than in a slave state. He be ing to wrest the Republican nomination away came active in Republican politics and played from Lincoln by use of the extensive patron a patt in securing Iowa's votes for Lincoln in age of the Treasury Department. Lincoln 1860. Lincoln appointed him to the Supreme chose him because he thought he would vote Court in 1862. to uphold the Greenback Laws, passed during Stephen J. Field was born in Connecticut the Civil War to make paper money legal ten in 18 j 6, and grew up as one of nine children, der in order to finance the war. But he added a several of whom were to achieve fame. His cautionary note-Chase would be a good older brother, David Dudley Field, was a Chief Justice if he could just give up his presi New York lawyer who obtained prominence dential ambitions. by drafting the Field Code, which codified For most men, the Chief Justiceship the common law in New York and was would have been enough, but not for Salmon adopted in other states. Another brother, P. Chase. He was an able man, a devoted foe Cyrus Field, laid the transatlantic cable from of slavery, but an egotist through and through. Ireland to Newfoundland in 1866. Field One of his detractors said that there were four began the practi ce of law with his brother in persons, rather than three, in his trinity. Dur New York in 1841 , but contracted the ing hi s rather brief tenure on the Court, from well-known "gold fever" in 1849 and jour 1864 until his death in 1873, his ambition for neyed to California by means of the Isthmus THE SUPREME COURT IN THE NINETEENTH CENTURY 11

Justice Samuel F. Miller (left) wrote for a bare majority in the Slaughterhouse Cases (1873), narrowly con struing the Fourteenth Amendment to apply only to the newly freed slaves. In a dissent, Justice Stephen B. Field (right) protested that if that were so then the Amendment was "a vain and idle enactment" that accom plished nothing. Field's broader view ultimately prevailed with the Court. of Panama. He became active in California The third of this triumvirate of Associate politics and legal affairs, serving as Chief lustices was loseph P. Bradley. He was born lustice of the state supreme court before Lin in upstate New York near Albany, the oldest coln appointed him to the Supreme Court of of 12 chi ldren of a subsistence farmer. De the United States in 1863. ciding that he needed some formal education, After the Civil War, cases began reaching he dressed in a homespun suit and walked the Supreme Court involving the Civil War from near Albany to Rutgers University "on amendments to the Constitution-the Thir the banks of the old Raritan" in New lersey teenth, Fourteenth, and Fifteenth Amend a distance of about two hundred miles. He got ments. The first important case of this kind to his education, studied for the bar, and suc be decided was the so-called Slaughterhouse cessfully practiced law in New lersey. He cases in 1873. lustice Miller wrote for a ma was known as a "railroad lawyer" because of jority of five, giving the Fourteenth Amend his clients, and was appointed to the Supreme ment a narrow construction and saying that it Court by President Grant in 1870. He was doubtful that it would have any applica authored the opinion of the Supreme Court in tion to individuals other than the newly freed the Civil Rights Cases, one of its more impor slaves. lustice Field wrote in dissent that if tant decisions of this era, saying that the this were so it was "a vain and idle enactment" Fourteenth Amendment applied only to gov that accomplished nothing. Though Field lost ernment discrimination, and that Congress this round, it was his broader view of the could not prohibit merely private discrimina FOUIteenth Amendment, rather than Miller's tion. narrow one, th at would ultimately prevail Chief lustice Chase's presidential ambi with the Court. tions were not the only ones among members 12 JOURNAL OF SUPREME COURT HISTORY

To the delight of Puerto Rico's sugar growers, the Supreme Court held in 1901 that tariffs on foreign goods did not apply to U.S. possessions . This 1902 cartoon shows Cuba , a former U.S. possession that had since been granted sovereignty, asking to be accorded similar status. Suits involving America's territories posed the question: "Does the Constitution follow the flag?" of the Court at this time. Stephen Field wanted its Justices were named to a fifteen-member to be considered for the Democratic presiden commission which would in effect have the tial nomination on at least one occasion, and final say as to how votes from the disputed David Davis had always been more interested states were to be counted. Two known Repub in politics than in law. Lincoln had practiced licans and two known Democrats on the Court before Davis when the latter was a state court were easily agreed upon, but the fifth member judge of a circuit in downstate []]inois, and from the Court, whose vote would obviously when Lincoln became president, he appointed be decisive, was harder to pick. One proposal Davis to the Court. Davi s wrote the Court's that gathered considerable support in Con opinion in the famous case of Ex Parte gress was to pick the Justice by lot. Tilden, Milligan, where the Court held that persons who was on the whole a rather cold and calcu not in the military could not be tried before a lating individual, balked at this, and in one of military commission so long as the civil hi s rare bons mots said that he might lose the courts were open. presidency, but he would not raffle fo r it. In the disputed election of 1876, in which Finally, Davis-who, although a Republican Rutherford B . Hayes, the Republican, and appointee, had shown considerable independ Samuel Tilden, th e Democrat, vied for the of ence in his views-was chosen. He had re fice, the Supreme Court was drawn into the ceived some votes for president at the Liberal controversy, not as a body, but because five of Republican Convention in Cincinnati in 1872 THE SUPREME COURT IN THE NINETEENTH CENTURY 13

and was hoping for a spot on one of the tickets the Supreme Court was caused by the retire in 1880. But just as the commission was about ment of Horace Gray of Massachusetts. Sena to begin its deliberations, the llJinois legisla tor Henry Cabot Lodge of Massachusetts ture elected Davis a Senator from that state, urged him to appoint Oliver Wendell Holmes, and he resigned from the Court to take his seat Jr., then Chief Justice of the Supreme Judicial in the Senate. After much consternation, Court of Massachusetts. Roosevelt demurred Bradley was chosen by the other four Justices until Lodge could assure him that Holmes was . as the most impartial, and was thereby put in sound on the "Insular Cases." This incident il an impossible position. If he were to vote with lustrates the transience of constitutional doc the Democrats in a way that would seat trine. Surely not one law student in fifty could Tilden, he would of course be applauded for say what the "Insular Cases" were, and I dare his impartiality and his independence. But if say the same is true of most readers. But they he were to vote in a way that would seat were very important to the President at the Hayes, he would be denounced as simply a turn of the century. The United States had de partisan tool. He did vote to seat Hayes, and feated Spain in the Spanish American War, was accordingly denounced, with little, if any, had acquired Puerto Rico and the Philippine justification. Isl ands as possessions, and had acquired a In 1896, the Court, in an opinion by Jus temporary mandate to govern in Cuba. The tice Henry B. Brown of Michigan, ruled in question was whether the Constitution fol Plessy v. Ferguson that the Equal Protection lowed the flag; could Philippine citizens fa Clause of the Fourteenth Amendment was not miliar only with the civil law system demand offended if a state provided separate facilities a right to jury trial ? These questions have long for whites and blacks so long as they were since either been solved or disappeared, just equal. This decision ratified the Jim Crow re as many of the questions that now perplex this gime in the South, and was overruled more Court will meet a similar fate a century from than fifty years later in Brown v. Board of Ed now. ucation. Miller died in 1890, Bradley in 1892. Field lived until 1899, and his last years at the Court were not happy ones. ENDNOTES

In 190 I, Theodore Roosevelt succeeded 'This article is an adaptation of the Supreme Court His William McKinley when the latter was assas torical Society's Annual Lecture delivered by the Chief sinated in Buffalo. His first appointment to Ju stice on June 4, 200 I. The Clerk, the Th ief, H is Life as a Baker: Ashton Embry and the Supreme Court Leak ScandaP

JOHN B. OWENS

On December 16, 1919, Ashton Fox Embry, law clerk to Supreme Court Justice Joseph McKenna, abruptly resigned from the position he had held for almost nine years. His explana tion? His fledgling bakery business required his undivided attention. Newspapers that morning hinted at a different reason: Embry resigned because he had conspired with at least three indi viduals to use inside knowledge of upcoming U.S. Supreme Court decisions to profit on Wall Street.2 A grand jury returned an indictment against Embry and his associates a few months later, and Embry's argument that he had committed no crime ultimately reached the Supreme Court, the very institution he was accused of betraying. Despite the sensational headlines and fierce legal battle arising from his indictment, the United States Attorney quietly dismissed Embry's case in 1929, almost ten years after the story had broken. Few Court scholars have ever heard of Embry, and the memory of Embry, much like the case against him, has disappeared with time. 3 This article unravels the "Supreme Court Leak Case" by reconstructing what happened almost eighty years ago.

I. The Clerk earned a law degree at night from George town University.6 On January 16, 1905, A. The Early Years Embry accepted a position as copyist for the Ashton Fox Embry was born in Justice Department.7 He moved up quickly, Hopkinsville, Kentucky, on February 21, becoming a clerk on July 3, 1905 (at a yearly 1883.4 The third son of ten children in the salary of $900),8 a stenographer on October wealthy family of Wallace and Minerva 21, 1905,9 and a confidential clerk by De Embry, Ashton left home at the age of six cember 22, 1905. 10 By June 23, 1908, his teen for Washington, DC5 and eventually stint as a confidential clerk at the Justice THE CLERK, THE THIEF, HIS LIFE AS A BAKER IS

Department was over: he had resigned to ac day differed significantly from the modern cept a position as "stenographer," or law law clerk. Justice Horace Gray hired and paid clerk, with newly appointed District Court for the first Supreme Court law clerk in 1882, Judge Edward T. Sanford in Tennessee. 11 and Congress began funding law clerks in Embry earned $1,500 a year accompanying 1886.18 As their title suggests, the steno Sanford "whenever necessary to terms of graphic clerks, or "secretaries," performed court at various cities," 12 and he apparently mostly clerical tasks, including typing and en . appreciated his time with the judge: in a let suring payment of the Justices' personal bills . ter to a former associate, he said that he Some of the early clerks, like their modern "like[d) the change [to clerking for Judge counterparts, helped draft opinions, but oth Sanford) very much."1 3 Not only did he grow ers, including Justice McKenna's, had no role professionally, but also personally: during his in opinion writing. 19 However, all of the time with Sanford, Embry met and married clerks, including Embry, had access to the his wife, Grace Frost, a student at the Univer opinions before the public did. As Dean sity of Tennessee. 14 He disdained, however, Acheson, who clerked for Justice Brandeis the criminal element that often dominated during the 1919 and 1920 Terms, described: Judge Sanford's docket, as he described to Each Justice in those days had a his former associate: docket book. ... At the bottom of The Judge and] have just returned each page, in tabular form for voting from Greeneville, where he held purposes at the Court's weekly Sat court for four days last week. Most urday conference, were the names of of the cases were criminal, illicit dis the Justices and, after each, columns tilling and so forth, and the defen marked "Aff[irm)," "Rev [erse)," dants presented on the whole a piti "Dism[iss)," and-a larger space able spectacle, ignorant, low-browed "Remarks." One of the joys of being cusses, who undoubtedly will be a law clerk was to open the book on better off in jail than at large. IS Saturday afternoon and learn weeks ahead of the country what our mas By October 1909, Embry had left Judge ters had done. 2o Sanford's chambers and returned to Washing ton to serve as a stenographer for the Solicitor Embry enjoyed almost nine years with GeneraL 16 Less than eighteen months later, Justice McKenna, but on December 16, 1919, Embry replaced James Cecil Hooe, who had it all came to an abrupt end. That morning, died, as Justice McKenna's sole stenographic several newspapers ran front-page stories al clerk. 17 Embry had ascended to this position leging that someone had leaked the results of by the age of twenty-seven. Less than nine a decision, United States v. Southern Pacific years later, however, newspaper articles, edi Railroad, 21 to a group of Wall Street specula torials, and even a judge would criticize this tors.22 In Southern Pacific, the United States golden boy, all believing that he would be attempted to cancel the railroad's land patent better off in jail than at large, much like the because the railroad had made false represen "ignorant, low-browed cusses" the young tations in its application for the land. The Embry had condemned earlier. Court agreed with the United States and can celed the railroad's patent,2J and the price of B. The Court Southern Pacific's stock feU as a result of the While scholars disagree as to the exact COUlt'S holding,24 According to the newspa role that law clerks play today, all would pers, the speculators knew of the Court's deci agree that the stenographic clerk of Embry's sion in advance and sold the stock shOit hours 16 JOURNAL OF SUPREME COURT HISTORY

Ashton Embry resigned his posi tion as a clerk at the Justice Department in 1908 to become law clerk to newly appointed Dis trict Court Judge Edward T. San ford of Tennessee (pictured). He left Sanford (who was later appointed to the Supreme Court) and returned to Washington, DC , where he eventually became law clerk to Justice Joseph McKenna.

before the decision became public, turning a so many ways- which has meant to small profit.25 Later that day, in a handwritten me more than I can tell. letter, Embry tendered hi s resignation: Yours sincerely, My dear Mr. Justi ce McKenna: Ashton F. Embry26

Justice McKenna responded the same day: By reason of my bakery business having expanded to such an extent as The within resignation is accepted to to require practically all of my time, take effect this day with regrets for I feel that in justice to your work, and the necessity. my health, I ought not to try to con Joseph McKenna tinue as your secretary-for it seems Asso. Justice27 impossible for me to do my full duty to both places. While Embry's career as a clerk may have I therefore beg to tender to you ended that day, hi s life as a full-time baker my resignation as your Law Clerk, had begun. So had his place as the centerpiece effective tod ay. of a scandal that would grab headlines, in In resigning my position, I de volve a young Bureau of Investigation attor sire to express to you my due appre ney named J. Edgar Hoover, and eventually ciation of your helpful ness to me in reach the Supreme Court. THE CLERK, THE THIEF, HIS LIFE AS A BAKER 17

After clerking for Justice McKenna for nine years, Embry (pictured here in 1932 with a Mrs. V. Eugenia Plaxton) abruptly quit in December 1919. He blamed the expansion of his bakery business in his resignation letter, but he probably stepped down after leaking the results of the Supreme Court's decision in a railroad case to his speculator friends so they could sell the company's stock short and make a profit. 18 JOURNAL OF SUPREME COURT HISTORY

orderly processes of the most sacred II. The Thief American political institution, the United A. The Break States Supreme Court, has been frustrated by While the Clerk of the Court, James publicity information furnished to the Gov Maher, denied that inside information came ernment by the International News Service."3o from his office, and Justice Brandeis refused On November 20, 19J9, almost a month comment,28 the newspapers were abuzz that before the scandal hit the front pages, Pew vis someone on the inside had leaked upcoming ited Chief Justice Edward White at his home results of cases to a group of speculators. and revealed that a friend of Pew's had been in Leading the journalistic charge was Marlen E. vited to participate in a scheme to profit on Wall Pew, editor and news manager of the Interna Street with inside Court information. According tional News Service, part of William to Pew, the Chief had difficulty digesting such Randolph Hearst's media empire. For the next news. After expressing disbelief "'that such a two weeks, Pew provided readers with daily thing could happen,'" the Chief Justice "was at updates on the progress of the investigation, one time so [aJffected by his emotion concern always scooping his rival papers.29 Yet Pew ing the alleged imposition on his COUlt that he was more than an aggressive reporter cover wept." After three days of consultations with ing a hot story; he was an integral part of it. As Justice McKenna, Chief Justice White notified Pew boasted when he first publicly broke the the Justice Department that Pew's story war scandal: "An audacious scheme of a coterie of ranted further investigation.3 l Washington speculators to inteIfere with the That task initially fell into the hands of Assistant Attorney General Charles B. Ames, who was Acting Attorney General due to the illness of Attorney General A. Mitchell Palmer. 32 Ames arranged for Captain Frank Burke of the Bureau of Investigation to visit Pew at his home, and Burke learned that John C. Hammond, a friend of Pew's, was the in formant. 33 Hammond, who had worked for Pew and several newspapers,34 relayed the following tale.

B. The Scheme 1. Dancing with the Devil. Hammond's introduction to the scheme came via his long time associate Aaron Rachofsky, who had also worked for Pew at one time.35 A New Yorker, Rachofsky had spent some time in Washington and had become good friends with Major E. Millard Mayer, former assistant

Marlen E. Pew, editor and news manager of the Inter to the chief of the Army's Surplus Property national News Service, which was part owned by Wil Division. After World War I, Rachofsky and liam Randolph Hearst, broke the leak story and then Mayer formed the Federal Supply Company doggedly pursued it. Pew revealed that a month before the scandal hit the newspapers one of his to resell surplus property.36 In the midd Ie of friends had been invited to participate in a scheme to October 1919, Rachofsky met Barnett Moses, profit on Wall Street with inside Court information, an attorney who shared an office with Mayer and Pew made Chief Justice Edward Douglass White aware of the potential jeopardy. at the Munsey Building in Washington, DC. A THE CLERK, THE THIEF, HIS LIFE AS A BAKER 19

few weeks later, Moses called Rachofsky and ing, Rachofsky openly confirmed what pitched him several business deals. One in Moses had been suggesting: volving surplus ships intrigued him. Rachofsky called hi s friend Hammond3? and Moses and Mayer can get the real set up a meeting at Hammond's apartment to goods. They have a strong connec discuss financing3 8 tion and the best part of it is that this Hammond, Rachofsky, and Moses briefly is not a case of bunk on their part. . discussed the ship-selling scheme, but the con They can make good in advance and versation quickly shifted to the stock market. are willing to prove that they can Moses wanted to know if Hammond still make good. r will have a list of cases played the market and whether Hammond had in advance. I will get them Friday, invested heavily in whiskeY. He also wanted Saturday, or Sunday-the Supreme to know if " it would help me [Hammond] any Court meets at noon. Look in the ifI knew in advance what the government was Washington Post of the following going to do .. . . He wanted to know if I still Tuesday and you will see that the chummed around with some ofthe plungers of cases come down as Moses reports Wall Street. He suggested that Bernard Baruch them. 43 had made millions and why could not other folks take advantage of inside dope?"39 While Hammond initially did not buy into the Hammond admitted that he knew Baruch, the scheme. After all, this was not the first time he legendary Wall Street financier who had been had heard a rumor about Court leaks.44 But accused in 1917 of benefiting from inside in Rachofsky persisted, and on Thursday, No formation gained through his close connection vember 14, 1919, he provided Hammond with with the Wilson administration,40 Hammond a list of upcoming cases, and promised that refused to acknowledge any insider trading on one of them would be decided soon. The list Baruch's part. "That's right, protect your was remarkably accurate, correctly predicting friends," Moses replied. "That's the kind of a the outcome of s ix of seven cases45 The only man I like. A man who will stick and will not case the list got wrong, South Coast Steam run OUt."41 ship Co. v. Rudbach,46 was one in which Jus Hammond had indeed invested heavily tice McKenna dissented. in whiskey, and Hamilton v. Kentucky Dis On Sunday, November 17, 1919, tillers & Warehouse CO.,42 the pending Rachofsky took the next step: he told "wet-dry" Supreme Court case, particularly Hammond that the Court would hand down its interested him. In the "wet-dry" case, the opinion in United States v. Southern Pacific Court would decide whether the Wartime the next day and that he would share the Prohibition Act of 1918, which prohibited Court's decision with Hammond before its the sale of distilled spirits for beverage pur public announcement. "Get in touch with poses after June 30,1919, was constitutional. some of your Wall Street friends and they wi II A decision upholding the act would finan carry you," Rachofsky recommended. He said cially wipe out those like Hammond with that Hammond would meet a man named large investments in whiskey. If the Court Graves at a brokerage house the next morning struck down the act, then Hammond would before the Court's decision became public. hit the jackpot. Moses knew this and hinted The once skeptical Hammond was becoming at a deal. In exchange for the "dope" on up a believer. Unlike the wild rumors of the past, coming cases, including the wet-dry case, this one seemed real.4? Hammond would arrange the financing for It wa~ now Monday morning, November Moses's ship-sel ling scheme. After the meet- 18, 19 j 9, at 8:30 a.m., the day the Court would 20 JOURNAL OF SUPREME COURT HISTORY hand down its decision in Southern Pacific. As SURE part of our government that promised, Rachofsky called Hammond and told should be respected in every detail. him that the Court would rule against Southern From boyhood days, I have held the Pacific, meaning that the United States would Supreme Court in the greatest awe; I ; recover large tracts of land from the railroad, surrounded it with all the glory and thus driving down the price of the stock. deepest respect and confidence. This Hammond phoned several friends and told them was one branch of the government about the upcoming Southern Pacific decision, which could not, would not, ever go but he did not personally trade upon the informa wrong.58 tion.48 A few hours later, the Court proved Rachofsky correct. In an opinion by Justice After wrestling for two days with what Van Devanter, the Supreme Court reversed the to do, Hammond decided that he would not Ninth Circuit in favor of the government,49 "destroy [his) faith in the Supreme Court, by and the stock price fell almost ten percent by being a party directly or indirectly in using the end of the day.50 Hammond soon learned advance information."59 So he "would not that the man named Graves had provided the have the mental fight over again," Hammond information to Moses, and that the information decided "to burn all bridges" and tell his had come from the Justice Department.51 Ra friend Marlen Pew about the scandal. "I just chofsky then provided Hammond with a list of wanted to remove any temptation on my part five pending cases that would affect the stock of taking advantage at a later date of in side market when decided. While Wall Street was data. I knew if I told anyone, it would then always filled with rumors about leaks, Ham remove my chance of playing the market."60 mond knew that this was different: "[T)his In other words, once the cat was out of the was a case of getting real information. "52 bag, Hammond's greed could not force it 2. A Crisis of Conscience? Real infonna back in. 6 / tion meant real money, which Hammond 3. Undercover. Pew and Hammond dis needed. Accustomed to great wealth, he had cussed "the horror of it al.I and [they) both lost most of it in recent years "[t)hrough ill agreed that the facts should be laid before the ness and a combination of domestic and war Supreme Court," which Pew did shortly there affairs,"53 including the disintegration of hi s after.62 Hammond met with Justice Depart marriage.54 Hammond claimed that he had ac ment officials, and aJl agreed that Hammond cess to more inside government information should continue speaking with Moses, the at "than most an y man in N. Y. "55 He boasted of torney who first suggested that they could knowing "the tipster gang in Washington," as profit from in side Court information, to ferret well as the "Wall Street agents."56 While he out the full scope of the conspiracy. At this insisted that he never profited from any of this point, however, Hammond knew very little knowledge, he admitted that this time was dif about the source of the leak. He knew that the ferent. "As I had never taken a dishonest dol information reached Moses from the Justice lar, it was not much of a fight to decide that I Department, and that someone named Graves would not take advantage of the wet and dry was somehow involved, but nothing more. decision, but I was tempted to play the market He quickly learned the answer to these on other information."57 But another concern questions. With Pew paying his expenses, weighed on Hammond's mind-his respect Hammond soon met Moses at the Munsey for the Court: Building. While they awaited the arrival of Mayer, the army veteran turned surplus gov It so happens that I have always held ernment property entrepreneur, Moses told the Supreme Court as the ONE Hammond "[flor years and years-some ten THE CLERK, THE THIEF, HIS LIFE AS A BAKER 21

that evening and asked if Graves, who got "the dope" from his inside source at the Court, worked for the Department of Justice. "Sure. Didn't you know that?" answered Mayer. "Why, Moses told me he had given you all the dope. That's the trouble with Moses, he is too careful. .. . [B]ut I'm a gambler-I will take a chance. That's the only way we can get by in this world."65 Mayer also thought that Moses should let Hammond "meet the private secre tary of the Supreme Court Judge. You should know him .... [T]hat as you know is the way Moses gets the dope."66 Notes from the inves tigation listed the then-current "secretaries" for the Court: Acheson, Byrne, Day, Embry, Kiefer, Simpson, Stonier, Widdifield, and Morrison.67 Hammond, however, still could not identify the specific secretary who was

The defendants in the leak scandal assembled a leaking information to Graves. crack legal defense team that included Frank Hogan, At the direction of Pew, Chief William J. the founder of Washington, DC firm Hogan & Flynn of the Bureau of Investigation, and oth Hartson. ers, Hammond continued to press for more in formation . Rachofsky, who introduced Ham years I have been in touch with a man who can mond to the conspiracy, claimed that he had get the inside dope from the Supreme Court . ... dirt on Mayer, the surplus property entrepre My friend Graves is in close touch and we do neur, which would keep Mayer in check. not take any chance. We are sure before we Mayer, in turn, said that Moses, the attorney, move." Moses then promised information on had the goods on Graves. And when Moses several upcoming cases, including the wet-dry and Mayer were not collecting dirt on one an decision, but cautioned Hammond that they other, they had, according to Hammond, should not "go off half-cocked .... It will pay "only one topic of discussion--easy money us to devote all our time to the one case." What and women. Not once during the days I was was Moses's ultimate goal? "[T]o prove to one with them, did they ever utter one construc man with enough money that we are not guess tive sentence or give vent to one clean ing-then make the big bet."63 thought. It was graft, wine, and women Mayer arrived and met Hammond for the ALL THE TIME."68 first time. They briefly discussed the Federal Yet Hammond continued to wade Supply Company, the outfit Mayer used to re through this den of iniquity to get to the truth. sell surplus government property, but the con On December 2, 1919, the conspirators got versation quickly shifted to the Supreme word from their inside source that the Court Court. "Let us prove to you our data is cor would hand down its anticipated wet-dry de rect-let us prove it in advance," Mayer sug cision the next day. They wanted to meet with gested. "You should be satisfied now after the Hammond, but they normally "shied when [Southern Pacific] case and the other cases they found four walls about them" because of you have, but I suppose we must prove to your eavesdropping fears.69 Hammond forced the principals."64 issue by pretending he was ill, even calling for Hammond accompanied Mayer to dinner a doctor and nurse. Because his "illness" pre- 22 JOURNAL OF SUPREME COURT HISTORY vented an outdoor meeting, Mayer visited crazy, was a bug and a fellow that was dream Hammond at his room in the New Willard ing, and there could not be any leak from the Hotel. They discussed financing the Supreme Court."76 "We can take it to a half "cleanup" in the upcoming wet-dry case, and dozen other men who will back us just as hard Hammond boasteCI of having a credit line suf as your principal is backing us," they fired ficient to make a big hit: he was ready for back.?7 While they did not clean up as they twenty thousand shares. "[TJhis is serious," had hoped and were angry at each other, all Mayer said. Hammond agreed: "Let's be cold agreed that they would try once more to make blooded about this."70 Mayer, who chided the big hit. Hammond gave them one more Moses for being overly careful, should have week. Otherwise, "the deal is off."78 heeded his partner's ad vice: Underneath the 4. All Good Things . .. On Saturday, De hot-water bottles and pillows propping up cember 13, 1919, Moses received the magic Hammond lay a dictagraph that recorded their words from his contact at the Justice Depart entire conversation71 ment: the wet-dry decision would come down The wet-dry decision did not come down the following Monday, and the Court would on December 3, the next day, but Moses got uphold the restriction on the sale of liquor. word from his source that the Court would an Moses contacted Hammond with the good nounce the decision on Monday, December 8. news so Hammond's principal could make the The leak team planned to go to New York and "clean up" they had been awaiting for so long. "clean up ," something the Justice Department The conspirators planned to meet Monday did not want to happen. So when the conspira morning, December 15, in New York and sell tors met at the New York brokerage house on their liquor stocks short before the Court's Monday morning, Hammond failed to appear. noontime announcement of the decision. As did the Court, which again did not an Yet, when Monday morning rolled nounce its decision in the wet-dry case.72 That around, Hammond was nowhere to be seen, night, Moses, Mayer, and Rachofsky met with and Rachofsky's phone calls to him went un Hammond at his apartment and demanded to answered. Finally, Hammond showed up at know why he did not show that morning. The Rachofsky's hotel room door, told him a con stench from the room answered their ques spiracy to corrupt public officials had been ex tion: Hammond was hung over. "If you take posed, and that federal officials would soon ar another drink I am going to get up and shoot rive at the hotel and arrest Moses.?9 The Court you. You make me sick," one of them said.?3 announced its decision later that day,80 and Of course, this was not the case. Hammond the price of United States Food Products' had pretended he was hung over, splashing stock, heavily tied to distilled spirits, dropped whiskey on his clothes, the sheets, and all eight points in eight minutes after the decision over the room to justify his absence that became public.8i" The game was over, but it morning.?4 And again, a dictagraph recorded had ended with Hammond never learning the their conversation. actual identity of the law clerk responsible for Hammond spewed his own venom, upset the leak. 82 that the Court still had not issued an opinion in the case. "I told you in the beginning and all c. The Other Investigation the way through that we could not guarantee 1. The inquisition. The Justice Depart that the decisions would be down on a specific ment, however, thought it knew the source. day ... . One of the judges may get a head When Hammond told the Department on Sat ache," Moses explained.75 Hammond threat urday, December 13, that the decision was ened that his money man would pullout of the due the following Monday, the Department deal: "My principal called me a sort of liar, decided it could wait no longer. On the after- THE CLERK, THE THIEF, HIS LIFE AS A BAKER 23

A young J. Edgar Hoover (pictured) was assigned to investigate the allegations of John Craig Hammond, a con fidential government informant who identified the perpetrators of the Supreme Court leak to the Justice Department. noon of Sunday, December 14, Assistant At try , including the "Fertilizer Trust" litigation torney General Ames asked Chief Flynn, Cap in Tennessee with Edward Sanford before tain Burke, and Assistant Attorney General Sanford became a judge (and Embry's Frank Davis, Graves's boss, to meet him at boss).87 According to Pew, Graves "was very the Justice Department. After discussing the fond of outdoor sports and often went hunting case amongst themselves, they sent for with his department superiors who held him in Graves. high esteem."88 Born on April 26, 1877,83 James Har Graves aJTived at Assistant Attorney Gen wood Graves began his Justice Department eral Ames' office, and the interrogation began. career as a confidential clerk with the Justice Ames told Graves that the Department had Department on June I, 1903,84 and, like heard that he had given Moses inside informa Embry, rose quickly within the department. tion about upcoming Supreme Court decisions, Promoted to appointment clerk on October 8, and that Graves had profited on the sale of 1903, he notarized Embry's oath of office Southern Pacific stock on November 17, 1919, when Embry began as a copyist for the Justice the same day the Court handed down its deci Department.85 The Department promoted sion in that case. Most important to the inves Graves to assistant attorney in the Antitrust tigation, Ames told Graves the Department al Bureau by July 1, 1905, and special assistant ready knew the source of his inside to the Attorney General by November 27, information-Ashton Embry.89 1907.86 He worked on cases around the coun- Graves admitted that he had known 24 JOURNAL OF SUPREME COURT HISTORY

Moses for years, first meeting him when and Graves, but he excitedly denied any in Moses was in Washington for a Supreme volvement in a speculation scheme. The Court case involving the Mississippi River,9o investigators asked Embry about his actions and becoming better friends when Moses on Sunday, November 16, 1919, the day be moved to the Capitol permanently. He also fore the Court handed down its Southern Pa admitted that on Sunday, November 16, 1919, cific decision. According to Embry, he ac the night before the Court announced its deci companied his wife Grace and Mr. and Mrs. sion in Southern Pacific, he took the midnight Mahlon Kiefer to his bakery, where they met train from Washington, DC to New York Graves.97 Grace and the Kiefers left the bak City. The following morning, hours prior to ery for the Kiefers' home, leaving Embry the Court's release of Southern Pacific, he alone with Graves. Graves proceeded to ask sold five hundred shares of Southern Pacific Embry for money that the bakery owed him, short at a profit of three dollars per share. 91 He and Embry gave Graves $4,000 in checks and then spent Monday night in Moses's hotel $1,000 in Liberty Bonds.98 He said he had no room92 As for Embry, Graves acknowledged idea why Graves needed the money, and that they had been close friends for several Graves repaid it a few days later-with an years and were partners in a bakery busi extra $600. Embry claimed he could not re ness.93 But Graves denied that he ever gave or member why Graves paid him an extra $600, received any inside information about upcom but he would record it as a bakery transaction, ing Court decisions. His explanation for his as he had no personal interest in it. After timely speculation? Embry gave Graves the money, Embry met his wife at the Kiefers' home, and Mahlon [H]is reason for making this specula told him that the Court would announce the tion was that Moses had told him that Southern Pacific decision the next day99 he had studied the case and had Embry acknowledged that the circum reached the conclusion that the Court stances-Graves taking $5,000 from him, would decide against the railroad, traveling on a midnight train to New York, that this decision would depress the selling Southern Pacific stock short only stock, and that even if it did not he hours before the Court announced its deci thought it was a safe speculation; and sion, and then a few days later returning the that he (Moses) had guaranteed him money plus $600--were "very suspicious as (Graves) against loss.94 against him and that probably they were suffi Yet, Graves did not explain why Moses cient to convict him, but that notwithstanding would be so generous as to guarantee him those circumstances he was entirely innocent against any loss he suffered,95 nor why he de in the matter." 100 cided to sell the stock short only hours before A couple of days later, Graves returned to the Court announced its decision. the Department, this time with Moses. Moses Exactly why the Department suspected admitted that Graves shared a hotel room with Embry is unclear. One likely explanation is him the night after the Soufhern Pacific deci that after Hammond tipped off the Bureau sion, that he told Graves to speculate on about Graves, connecting Graves to Embry Southern Pacific, and that he introduced was easy because of their joint bakery busi Graves to Alfred Howe, the stockbroker who ness. Whatever the reason, they tested their took Graves's order. However, according to hypothesis later that Sunday afternoon. Ames Moses, his intimate knowledge of Southern called Justice McKenna, who sent Embry to Pacific came not from an inside source, but meet with Ames and company.96 from his careful study of the case, which al Embry admitted that he knew both Moses lowed him to predict its outcome accurately. THE CLERK, THE THIEF, HIS LIFE AS A BAKER 25

When asked if he had read the briefs, Moses Because he was a "commercial expert," responded that he had read only the record. Mayer explained, he traveled to New York to Assistant Attorney General Ames then asked "analyze a proposition that Hammond and Moses for a general statement about the case, Moses were working on,"107 presumably the including the questions involved and the deci plan to sell surplus ships. While meeting with sion of the Court. Moses's answers did not Hammond and Moses, they discussed Mo impress Ames: "It was at once apparent that ses's scheme to guess in advance upcoming his knowledge of the case was very vague and Supreme Court decisions. As an attorney, general, and he became very much confused Moses assured Mayer that after careful study and requested everyone to leave the room but he had a sixty percent chance of correctly pre me-which they did."lOI dicting the Court's decisions. lOS According to With the room empty, Moses asked what Mayer, it was Moses's prediction, and not "in would happen to him, and whether any laws side information," that led him to sell Southern were broken. Ames warned Moses that, at the Pacific short. In any case, he had little faith in very least, he faced disbarment and that crimi Moses's prognostication; he claimed to have nal charges were possible. Despite this warn played the stock both long and short that day. ing, Moses admitted that he had not "studied" Despite this innocent explanation, Mayer let slip the cases, and confirmed what Hammond had that he was suspicious of Hammond. Mayer told been saying all along: that "he had gotten his his inquisitors that he warned Moses that "[i]f 1 information about [Southern Pacific] from wanted to catch you I would do just like Graves; that he had also gotten information Hammond is doing." "What made you think from Graves about a number of other Moses would be caught? What was he doing cases."102 wrong?" they asked. "[N]othing," Mayer re Ames then called the others back into the plied, "except that his actions just made me room and repeated Moses's story. His head think that was what he was trying to do, that he hanging, Moses was too embarrassed to look was trying to catch him." 109 any of them in the face. 103 Furious, Graves 2. The Investigation Ends. By the end of called Moses a liar and demanded that he pro December 1919, the Department had the evi vide the times, places, and cases in which dence it believed necessary to wrap up the Graves allegedly had provided him with in case. Attorney Moses had admitted his in side information. Moses equivocated, unable volvement in the scheme and was begging for to implicate Graves with him present. But mercy. Army veteran Mayer had traded once Ames sent Graves away, "Moses admit Southern Pacific hours before the Court re ted in the presence of all the balance of what leased its decision, had strong links to Moses, he had previously said." 104 and had let slip his suspicions about A few days later, it was Mayer's turn. 105 Hammond. Justice Department attorney According to Mayer, he met Moses through Graves had received five thousand dollars the Federal Supply Company and admitted they from Embry the night before the COUlt an had adjoining offices in the Munsey Building. nounced its Southern Pacific decision, had He also knew Graves, but said that he had never met with Moses and Mayer the next morning, seen him prior to November 16, 1919, the day had sold the stock ShOlt, and had spent the fol the Court handed down its Southern Pacific de lowing night in Moses's hotel room. Law cision. Most importantly, he acknowledged clerk Embry, the key to the case, had had playing Southern Pacific stock ShOlt that same ample access to confidential materials, as day, but had an innocent explanation. Mayer de Acheson described,llo and had received six scribed himself as a commercial expert, or one hundred dollars from Graves only days after "who told another how to run his business."106 the COUlt handed down Southern Pacific. And 26 JOURNAL OF SUPREME COURT HISTORY the dictagraph recordings, as well as Moses's [the] opinions locked Up. "1 15 Embry also de inability to explain the very basics about the scribed the conference Jist that featured the case, shattered their "prediction" alibi. votes for upcoming opinions that mysteriously On December 29, 1919, Pew, relying traveled from the Chief Justice's library to upon his own inside information, told his McKenna's library. 116 Embry claimed that he readers that the Bureau's investigation was did not want to "stir up a sensation" with his "about finished."111 That same day, Assistant leak allegations, but out of fear of a possible Attorney General Ames announced that the indictment, he thought it was "only fair to Justice Department would submit the case to himself' to show that someone else was re the grand jury with an eye towards an indict sponsible. 11 7 Ultimately, he was never given ment. 112 Embry was now a step closer to the chance to tell his side of the story. sharing a cell with those " ignorant, The grand jury's investigation continued, low-browed cusses" he had denounced a few and Embry again visited Assistant Attorney years earlier. General Ames on March 15, 1920. He told Ames that he had met with both Chief Justice White and Justice McKenna. liB According to III. His Life as a Baker Embry, Justice McKenna hoped that the grand A. The Investigation Continues jury would not indict his former clerk, and the Embry began his new life as a full-time Chief Justice changed his attitude toward him baker as the grand jury began its investigation once Embry had related his side of the story. into his former life as a law clerk. While the Embry reiterated his hope that the grand jury grand jury heard the testimony of several wit not indict him, and reminded Ames that, if in nesses, including Ames, Hammond, and dicted, he would "indicate how information Rachofsky, 11 3 Embry wanted to tell the grand relative to decisions might escape." Ames re jurors his side of the story. On January 21, sponded to Embry's veiled threat: 1920, after meeting with Justice McKenna The circumstances against you are that morning, Embry visited Ames at the Jus very strong; for instance, you saw tice Department."4 Embry explained that Graves Sunday afternoon. At the time while he was confident that no jury would you saw him you knew what the deci find him guilty, he wanted to avoid the embar sion was going to be. You gave him rassment of an indictment. He could do this by $5,000 in funds. He went to New detailing other leak sources to the grand ju York and speculated in this palticular rors, thereby proving his innocence. For ex security in connection with Moses, ample, Embry claimed that information from who was making a business of deal Justice Brandeis's library made it to the White ing in securities affected by Supreme House, where persons other than the President Court decisions. That in the course of would see it. When Ames pressed Embry for two weeks or so he returned the more information about this "White House" money he made for you ... approxi leak, Embry declined to go into detail, but mately half of his earnings. I 19 hinted he would do so at a later time. Embry also recalled an incident in Justice Embry reluctantly agreed with Ames's review McReynolds's rooms at the Shoreham hotel, of the facts and admitted for the first time that where he saw an opinion lying on a table in the when he met with Graves at their bakery on very room that the hotel visitors had just toured. Sunday, November 17, 1919-the day before Reid, Justice McReynolds's now deceased sec the COUIt announced its decision in Southern retary, took the opinion, locked it in a drawer, Pacific-he had known what the Court would and told Embry "he had difficulty in keeping hold. More important to Ames, Embry ac- THE CLERK, THE THIEF, HIS LIFE AS A BAKER 27

Embry's bakery business was so successful that it expanded into seven chain bakeries in the Washington area . Despite his prominence as a businessman, Embry (seated between his wife Grace and daughter Estelle) asked his son Lloyd (standing at right) to scatter his ashes on the Supreme Court's grounds. A prominent Wash ington, DC portrait artist, Lloyd Embry fulfilled his father's wish after his death in 1965. knowledged "that the circumstances against Code.121 The memorandum relied heavil y him seemed to be very strong."120 upon Haas v. Henkel,l22 in w hich the Su preme Court upheld the ind ictment of a De B. A Case of ... What? partment of Agriculture statistician who J. The Theory. The Securities and Ex leaked upcoming crop reports to speculators. change Commission Act of 1934 prohibits an According to the indictment in Haas, the re insider from mi sappropriating in formation lease of these reports defrauded the United and benefiting financiall y from it, and a law States by "defeating, obstructing, and impair clerk today likely would face stiff criminal ing it in the exercise of its governmental func penalties for intentionally leaking inside in tion in the regular and official duty of publicly formati on to speculators. But Embry had been promulgating fair, impartial and accurate re a full -time baker for almost fifteen years by ports concerning the cotton crop." The Court the time Congress passed the Act, so federal agreed: prosecutors in J 919 faced a tricky question. Although all would agree that what Embry The statute is broad enough in its and th e others allegedly did was ethically terms to include any conspiracy for wrong, was it actually illegal? the purpose of impairing, obstruct A Justice Department memorandum ing, or defeating the lawful function dated December 5, 1919 argued that the con of any department of Govern spirators violated Section 37 of the Crimin al ment. .. . [A]ny conspiracy which is 28 JOURNAL OF SUPREME COURT HISTORY

calculated to obstruct or impair [the indictment began by outlining the Court's Department of Agriculture's] effi "custom and practice" of delivering its judg ciency and destroy the value of its ments at designated times "so that aU the citi operations and repOlts as fair, impar zens of the United States ... might and did tial and reasonably accurate, would have and enjoy equal opportunity to be in be to defraud the United States by formed and know, at the same time, of the dis depriving it of its lawful right and position and decision of appeals and causes duty of promulgating or diffusing the pending before the said court. ... "126 Inter information so officially acquired in fering with this "custom and practice" im the way and at the time required by paired the "right and privilege of the said law or departmental regulation. 123 United States to have the said decisions and judgments of the said court so delivered, In other words, the government had a "prop given, rendered, and announced in the manner erty right" in announcing its crop reports in a hereinbefore set forth .... " 127 certain manner, and the premature release of The indictment described Embry's duties this information defrauded the government of as a law clerk, which included "aiding and as this right. sisting [Justice McKenna] to perform the con The same principle was arguably true fidential business and functions of his office, here. By leaking and then trading upon inter and in doing and performing clerical and con nal Court information, Embry and his co-con fidential services for the said Justice in con spirators deprived the Court of the right to an nection therewith."128 The indictment then set nounce its decisions at the customary time. out the scheme. Embry, having access to up One potentially important difference, how coming decisions, leaked that information to ever, was that the Court's practice of an Graves, Moses, and Mayer "privately and in nouncing decisions at a designated time was advance of the official decision and an just that: a practice, not a " law or departmen nouncement thereof. ... "129 Graves, Moses, tal regulation." The memorandum recognized, and Mayer knew of Embry'S responsi bilities then discounted, this possible conflict with and the Court's "custom and practice" of an Haas: "It is evident, however, that by 'regula nouncing decisions at a designated time and tions' [in Haas] is meant simply the customs place. The four then set out to "cheat and de and usage of the Department." Satisfied that fraud" the United States by speculating on the the government could overcome this hurdle, New York Stock Exchange. The scheme the memorandum then examined the Court' s brought "into question the privacy and sanc relevant customs. While "[t]he rules of the tity of the deliberations of said court, and tlie Court do not seem to bear directly upon the integrity and efficiency of its Justices and of subject, ... they evidently contemplate that ficials." 130 the matter is not to be made public except in The indic tment then focused specifically the way specified therein through formal ac upon the events surrounding the Southern Pa tion of the Court itself."124 The government cific decision. It detailed how Embry leaked then proceeded with the Haas theory in pursu the decision to Graves on November J 6 and ing an indictment against Embry, Graves, how Graves, Moses, and Mayer then sold 500 Moses, and Mayer. shares of the stock short the next day at a 2. The indictment. The grand jury bought profit of $1,412.50. To complete the deal, the government's theory. Breaking a three Graves paid Embry $600, "contrary to the month silence concerning the case, an indict form of the statute in such case made and pro ment against Embry, Graves, Moses, and vided, and against the peace and government Mayer was unsealed on April I, 1920. 125 The of the said United States."I.ll On April I, THE CLERK, THE THIEF, HIS LIFE AS A BAKER 29

Justice McKenna's increasing senility may have provided Embry with the perfect setting to carry out his scheme. The close relationship between McKenna (right) and Chief Justice White (left) may also have caused White to overlook some of his friend's flaws. 30 JOURNAL OF SUPREME COURT HISTORY

1920-soon after the indictment was un this high trust, for his own gain is en sealed-Embry and Graves each posted a gaged in a wicked enterprise that $2,000 bond; Moses and Mayer did the same must in every possible way be the next day. 132 checked. 136 3. Demurrerl and a Ruling. While A few weeks later, Judge Siddons agreed Moses, Embry, and Graves remained silent , with Hapgood. Much like the government's Mayer declared that he was innocent, "as December 5, 1919 memorandum had done, everyone will know when the case is Judge Siddons relied heavily upon the Su tried." 133 It was his lawyer's job, however, to preme Court' s decision in Haas II. Henke/,m make sure that the case never got that far. Pew quoting the same language as had the govern reported that "[a] terrific legal battle is ex ment' s memorandum. The question, for Judge pected to grow out of the indictments. The de Siddons, was whether the acts alleged in the fendants have announced an imposing array indictment fell within the statute' s scope. of legal talent to appear for them at the Judge Siddons answered with an emphatic tri al."134 This pre-OJ. "Dream Team" in yes, concluding: cluded Frank Hogan (founder of the Washing ton, DC powerhouse law firm Hogan and It is common knowledge that from Hartson) for Moses, Arthur Peter for Mayer, the earliest period of the hi story of and the law firm of Douglas, Obear, and the Court, the determinations Douglas for Embry and Graves. Filing coordi reached by it were only to be re nated demurrers, each lawyer targeted the in vealed and an nounced in open court dictment's most glaring weakness: even if the at such times as it should determine, facts alleged were true, a conspiracy to violate and that until such public announce a "custom and practice" of the Court, without ment, no hint even of the character more, was not a conspiracy to violate any law and scope of the conclusions of the United States. 135 reached, should be revealed . . .. Initially assigned to Judge Gould, the Were it otherwise, what opportuni case was reassigned to Judge Siddons after ties would be presented, not merely Judge Gould's death. The reClssignment de to litigate, but to others, to take layed the case significantly, with the Govern undue advantage of advance infor ment and the Dream Team submitting briefs mation as to how particular causes in June 1921 , more than a year after the grand were going to be determined; what jury returned the indictment against Embry serious political consequences might and hi s associates. A waiting Judge Siddons's not result from such disclosures; ruling, influential columnist Norman Hap what grave international complica good wrote: tions even might not ensue if some employees of the United States, as One of the most admirable things signed for service to the Court, about our Supreme Court is the suc should betray unannounced determi cess with which its secrets have been nations of the tribunal? Every judge, kept. . . . To break down this stan every lawyer, indeed every intelli dard is a very serious offense, what gent citizen, knows that any other ever may be the legal technicalities course than that pursued by the Court about whether or not it constitutes in in the an nouncement of its judg law a fraud against the United ments wou ld be fraught with great States . ... The employe[e] who un danger to the orderly course of jus dertakes to break down this tradition, tice. 138 THE CLERK, THE THIEF, HIS LIFE AS A BAKER 31

A few weeks later, the Court of Appeals that agreement into effect they for the Di strict of Columbia refused to review would violate a long-established Judge Siddons's opinion,139 leaving Embry "custom and practice" of the court. with only one place to go: the Supreme Court That violation would have been the of the United States, the very institution he result of their very improper and was accused of betraying. entirely censurable preagreement. Could it be sa id, however, that they . C. Back in the U.S.S.C. had thereby illegally conspired to de I. The Petition. On October 24, 1921 , the fraud the United States of a right in Dream Team jointly filed a fifty-eight-page violation of Section 37 of the Crimi nal Code? 14 3 petition for writ of certiorari on behalf of Embry, Graves, Moses, and Mayer, present This case, according to the petitioners, was no ing the following question: "Does an agree different: Embry and the others might have vi ment to violate a custom and practice of hav olated the Court's "custom and practice," but ing deci sions of the Supreme Court . . . no more. As the petition made clear in its clos announced in a certain manner constitute a ing paragraph: conspiracy to defraud the United States under Section 37 of the Criminal CodeTI40 To If, as a matter of fact, the defendants prove it did not, the defendants had to di stin [profited from in side information], guish Haas v. Henkel, the case that the Ju stice then all must admit that their conduct Department and Judge Siddons had found so was deserving of severe censure. But seductive. it is a different thing to pronounce The Dream Team's main argument was censure and to voice condemnation that, unlike in Haas, "{t}here is aLLeged no of a tlagrant breach of propriety from rule of the court which, had one been promul construing that breach into a crimi gated, would have had the force and effect of nal offense against the statutory law law, No regulation issued by the court, no of the land .144 order ever made by it, nothing that would bind its members or its employees is attempted to 2. The Response. The government's be set forth,"141 With no rule or regulation in seven-page Brief in Opposition, filed on No place, the defendants could not "conceive vember 25,1921, focu sed primarily upon the how the United States could be deprived of case's procedural posture. Because the gov anything either having a pecuniary value or ernment had not yet tried Embry and the oth having relation to the performance of any of ers, there was no pressing need for the Court its governmental functions." 142 The petition to grant the petition and review the case. If the ers then offered the following hypothetical: defendants were convicted after trial, the Court at that point could review these same is It is the custom and practice of the sues in a later petition. If they were found not United States Supreme Court, mani guilty, then there would be nothing for the festly for the purpose of maintaining Court to review. 145 In addition, while the case an entirely proper show of respect presented novel iss ues, they were not the type and dignity in its presence, to require upon which the lower courts disagreed (or persons entering the court-room to even di scussed), nor were they "of general in remove their hats .... Suppose two terest to the public." 146 As for the merits of or more men outside the court-room Embry's argument, the Government re agreed to enter with their hats on and sponded in only twenty-seven words: "The keep them on. When they carried sufficiency of the indictment, which is the 32 JOURNAL OF SUPREME COURT HISTORY sole question raised by the petitioners, is man D. The Problem with Hammond ifestly within the doctrine of Haas v. Henkel, 1. A Meeting with Mayer. From the out and therefore without merit." 147 set, the department knew that Hammond had 3. The Ruling. On December 5, 1921, the his problems as a witness, including the fol Supreme Court denied Embry's petition.148 lowing: his link to the world of "tipsters," his How the Justices voted in the case is un admission that he leaked the Southern Pacific known, and the standard order declining re decision to his friends on Wall Street, and the view does not indicate if any of the Justices, fact that what he did for a living was less such as Justice McKenna, recused themselves than clear. Even Hammond knew of the de from the case-or if the Court relied upon the partment's concerns. In his memorandum de "rule of necessity" to justify reviewing tailing his undercover investigation, Hammond Embry's petition. 149 Whatever the Court's speculated that Chief Flynn, "if put to the acid reasons, Embry, Graves, Moses, and Mayer test, [may] say J was a bit f1ighty. " IS4 But now knew that the diplomacy phase of the Hammond promised that if he could get case was over, and it was time to prepare for Moses, Mayer, and Graves into the same war with the government at trial. room with him, "J can convince you before r 4. Not with a Bang . .. But the war be am finished with them, that they OlD tween the department and the Dream Team STEAL THE INFORMA nON FROM THE was never fought. The government dismissed SUPREME COURT."ISS He never got that the indictment on November 20, 1929, ten chance. years after the alleged violations occurred, de A conversation between Hammond and spite United States Attorney John Laskey's Mayer on May 4, 1920 did little to boost the assurance to Assistant Attorney General department's confidence in their informant. Ames in May 1920 that the trial would com According to Hammond, Mayer boasted of in mence as soon as possible, ISO and an October side sources at the Justice Department who 5, 1922 promise to E. Bright Wilson, an asso told him that the department had serious reser ciate of Moses's, that the case would be tried vations about the case. Mayer told Hammond "at the earliest practicable date." lSI The de that the department would "present none of partment's official files remain eerily quiet on your evidence at the trial unless they can back the subject, containing no notes or memo it up by witnesses. The government does not randa explaining why the U.S. Attorney dis care for you; doles] not think you did much of missed the case. The district court's docket a job and a lot of the D. of 1. men are busy sheet is equally unrevealing. After Judge knocking yoU."IS6 Mayer claimed that power Siddons's ruling upholding the indictment in ful men, including Senator James Hamilton June 1921, only two entries remain: Graves Lewis ofJllinois, ls7 were ready to back Mayer paying for a $500 bond almost five years later, and his fellow defendants, and that one named on March 23, 1926, and the government's dis Tumulty " hates you and he has given our side missal of the case in November 1929.1.12 The some good stuff against you," and would tes newspapers-and even Pew-stopped writ tify against Hammond at any trial. IS8 Tumulty ing about the case. 15 3 was none other than Joseph Tumulty, secre The question, then, is why the department tary to President Woodrow Wilson and ac dismissed the case despite its strong evidence cused by some of running the country during and its battle in the courts to uphold the indict Wilson's prolonged illness. 1.19 In earliercorre ment. Although it is impossible to be certain spondence, Hammond had boasted of work of the reason, it appears that serious cracks ing well with Tumulty;160 either he lied or had begun to appear in the foundation of the something since went wrong. government's "mountain of evidence." On May 6, 1920, Ames assured Hammond THE CLERK, THE THIEF, HIS LIFE AS A BAKER 33

that Mayer's comments were "rid icuJous,"161 Department leaks, illegal sales of phenol but that same day he asked United States At overseas and rifles to Pancho Villa, and so on, torney Laskey when the trial would com but rarely provided any useful information. mence1 62 The department surely anticipated Hoover summarized each scandal, including personal attacks di screditing the rat Ham the Supreme Court leak case, and analyzed mond, commonplace in any criminal triaJ, and exactly what useful information Hammond took them into account when deciding had provided the Government. In words eerily whether to bring the case. However, the de similar to descriptions of the future FBI direc pal1ment apparently did not know about his tor himself, Hoover concluded that Hammond mental instability and his incredible history of was involvement in similar schemes. a great bluffer, toots hi s own horn 2. Hoover and Hammond. 163 In its March continuous ly, is a man of violent 23, 1918 issue, the Saturday Evening Post ran likes and dislikes and very vindic a story called "German Poison," in which the tive, nourishing grudges against per author, Isaac Marcosson, critic ized Ameri sons for a long time who may have cans who received money from German pro done something to him to which he pagandists during World War 1. 164 Although takes exception. In some ways he is not specifically named, Hammond was one of eccentric almost to the point of lack Marcosson's targets, having accepted money ing good mental balance. 168 from a German agent, Von Rintelen. In a fash ion similar to what he told investigators about Hoover concluded that, save for the Supreme the Supreme Court leak case, Hammond in Court leak, "[a]ll other matters in which sisted a1l along that he accepted the money be [Hammond] took part either failed to materi cause he was working undercover to expose a alize into anything at all or else hi s connec great German threat, and not because he be tions with the case was [sic] mere ly inciden longed to a German conspiracy. 165 Outraged tal."1 69 by the Post article, Hammond sued the Post 3. Secret Agent Man. A review of and Marcosson for libel later th at year. The Hammond's MID files confirms Hoover's litigation dragged on for a few yea rs, and on conclusions.17o During World War I, Ham February 5, 1921, Marcosson asked the Jus mond served as a zone captain for the Ameri tice Department to turn over anything it had can Protective League, a private investigation on Hammond. The department acceded to the force that searched for German sympathizers request l66 and assigned the task to a young as and performed other " patriotic" tasks. 171 After sistant, John Edgar Hoover. Better known as receiving a strong recommendation from 1. Edgar,167 Hoover reviewed Hammond's Marlen Pew, 172 Hammond served for one Military Intelligence Division (MID) files, the month with MID in 1918, but was let go. His department's case files, and other Bureau of reviewer urged MID never to hire him again, Investigation files, and al so spoke with hi s writing in ink on the bottom of his evalu ation "confidential informant" to pre pare a compre that "[h]e should be put on the black li st for a hensive report on Hammond's life. commission."173 John Craig Hammond was born in Cadiz, Yet, Hammond persisted. In letter after Ohio, on April 21, 1876. He had a long career letter, he begged to work for MID, but with no in the newspaper business, which is where he success.J74 Hi s break came, ironically, met Marlen Pew. As Hoover detailed in hi s re through the Supreme Court leak investigation. port, Hammond always boasted of being " in Riding the wave of his successful tips (which the know" about several allegedly ongoing even Hoover admitted were useful), 175 scandals, including White House and State Hammond convinced General Churchill of 34 JOURNAL OF SUPREME COURT HISTORY

MiD on December 30,1919 to hire him as an By 1921, Hammond, according to Hoover, undercover agent to investigate Moses's and was "broken in spirit, health and purse."186 A Mayer's Federal Supply Company, the firm newspaper reporter wrote MID in 1923 th at that Mayer used to sell surplus property. Hammond was boasting of his time as No. Churchill agreed to pay Hammond's related 113, wanting to verify his story.1 87 MiD re expenses, but no salary.176 As Agent "No. fu sed to comment, 18S but it did return Ge neral 113," Hammond took his new job so seriously Churchill, the man who hired Hammond, to that he begged MID to ensure that his name his prewar rank of Major of Coast Artillery, not appear in the newspapers after the grand and sent him "on an extended tour of inspec jury returned the indictment against Embry tion of Military Attaches abroad."1 89 and the others, for any publicity would com According to fa mily lore, Hammond re promise his undercover work. 177 turned to work for a newspaper as a cartoon As No. 113, Hammond dropped the Federal ist. He sketched a cartoon about AI Capone Supply Company investigation and focused that Scarface did not find so funny, leading primarily upon the sale of a milita ry chemical Capone to kidnap Hammond's son, John compound called phenol to overseas powers, in Hope Hammond. Fortunately, the boy was cluding Japan. 178 He investigated several gov eventually returned unharmed. 190 The family ernment officials and important public fi gures, broke all ties with Hammond, and his son including Bernard Baruch, the man he had ear even changed his name to Richard Hal lier called a friend . The Bamch phase of the in Iiday.1 91 Hammond' s mental problems con vestigation ended when General Churchill made tinued, and he never had the chance to con clear th at "no course of action which would even front Embry, Graves, Mayer, and Moses to resemble an investigation of Mr. Baruch would prove to his many doubters and the world that be tolerated." 179 No. 113's phenol-related ef his story, the sensational "Supreme Court leak forts did little to impress MID, who, on April scandal," was tme. 20, 1920, ordered him to end his investiga tion.lso However, Hammond continued hi s E. What Happened? undercover activities as No. 113, refusing to The mountain of evidence against Embry step down until he heard from Churchill per and the others in 1920 looked like a molehill sonally.181 Even after he received Churchill 's by December 1921 , when the Supre me Court letter affirming that MID no longer needed hi s denied certiorari in Embry's criminal case. services,182 Hammond would not give up. In a The government's key witness, Hammond, series of progressi vely rambling letters pep proved incredibly unreliable and unstabl e, pered with paranoia, Hammond begged Chur and it is doubtful the department wished to chill to retain his services and accused several rely so heavily upon such a lightweight, espe military officials of conspiling to silence him to cially after reading Hoover's report. Even if protect their own nefarious dealings. In one let Hammond had been mentally stable, hi s un ter, Hammond accused an MID agent of de clear role in the scheme would have permitted stroying key evidence that would vindicate his talented defense counsel to impeach his credi claims.ls3 In another, he warned Churchill to bility. For example, Hammond admitted that "[c]heck M.LD. at every possible turn ; don' t he leaked the information about Southern Pa back any statement some of the M.I.D. men cific to friends before he began cooperating make-they are just as bad as a heap of the with the Government's investigation, show outsiders."184 While Hammond eventually ing very little of the "deepest respect" he stopped writing, he ne ver relinquished hi s cl aimed he had for the Court. While defense MiD identification badge, despite repeated re counsel may have had difficulty proving that quests for its return. ISS Hammond directly benefited financially from THE CLERK, THE THIEF, HIS LIFE AS A BAKER 35 inside information, it would be an easy spec their side, while the government had attorneys ter to raise. And, if one believes Mayer, public cum investigators who wrote contradictory re figures such as Joseph Tumulty would im ports months after th e alleged incidents oc peach Hammond' s credibility further at trial. curred. The key "witness" aside from Talented defense counsel like Frank Hogan Hammond, Assistant Attorney General Ames, could have shredded Hammond on the stand, had left the Department by April 1921 . 193 Ac both by punching holes in his story and by cording to Mayer, the Justice Department permitting him to exaggerate about his inside would not proceed without witnesses to back connections to such a degree that no juror up Hammond's story. Considering that the de would believe him. partment had no such witnesses other than Although the department conducted its their own former attorneys, and that own investigation that corroborated much of Hammond's former and future actions called what Hammond told them, it also made some his own credibility into serious doubt, it is key mistakes that defense counsel could have quite likely that the department dismissed the easily exploited at trial. For example, depart case because it did not think it could win at ment personnel interviewed all four co-con trial. Knowing that Embry conspired to leak spirators in the middle of December 1919. decisions to Graves was one thing; proving it However, Ames and the others did not write beyond a reasonable doubt to twelve jurors most of the reports of those interviews until was quite another. May 1920, more than five months later. Con sidering that these reports came after the F. Life Goes On ... grand jury had indicted Embry and the others, True to his word, Embry left the Court to defense counsel (assuming they could get focus on his new bakery. With his brother their hands on them) could easily attack the Barton Stone Embry, a recent World War I reports' validity as being influenced by the Army veteran, as his paI1ner, 194 Ashton very indictment the government sought. started his "Barker Original System of Bak These reports also had several inconsistencies eries" at 3112 14th Street, NW, Washington, among them, further indicating their lack of DC in 1919. 195 Barton and "Bobo," as Ash accuracy. The case files were not much better; ton's family called him, J96 named their busi Hoover thought them " most incomplete" after ness after an oven developed by William his review .192 Even if the reports had been un Barker. The bakery specialized in salt-rising available to defense counsel, the di screpan bread "from an old Kentucky recipe" and the cies suggest that the government witnesses Pierce Mill Loaf, or "bread baked from grain would have been easy targets for cross-exami ground on stones at Pierce Mill in Rock Creek nation. On top of this, the department had to Park."197 An advertisement for the Bakery sell a jury on a legal theory that was less than touted its "salt rising, gluten, whole wheat clear. Breads" and its "special rates on Rolls for Or While there was solid circumstantial evi ganizations." 198 dence (Embry giving money to Graves the Being "very entrepreneuria l,"1 99 Embry night before the decision came down, the had his finger in several business pies. He dictagraph recordings, and so forth), the served as the secretary and treasurer of the jury's verdict ultimately could turn upon who Seaboard Animated Sign Company In it believed: an unstable and seedy Hammond 1927,200 president of the United States versus golden boy Embry, Justice Department Wrench Manufacturing Company in 1927,201 attorney Graves, respectable lawyer Moses, checker for the Farm Credit Administration in and Army veteran turned businessman Mayer. 1934,202 and secretary-treasurer for Cleve's The co-conspirators had public figures on Cafeteria in 1935.203 But the bakery was his 36 JOURNAL OF SUPREME COURT HISTORY bread and butter, expanding to three locations newspaper reports of "tipsters," "i nsiders," in Washington, DC by 1923.204 That number "information guys," or simply "vultures" also rose to four locations by 1934,205 and by the support Hammond's story. According to Pew, time Ashton and Barton retired in 1950, it had these inside traders grown to seven bakeries in the Washington infest the hotels and the corridors of and Silver Spring area206 He had no further buildings. They are to be found brushes with the law, and with hi s wife Grace, wherever there is an important con he had four children (Lloyd, Ashton Jr. , ference going on or where some Wallace MacKenzie, and Estelle), and several news of national importance is liabl e grandchildren and great-grandchildren. Yet to break. They endeavor to make hi s very successful busi ness and family life friends with newspaper correspon apparently could not fill the void left by his dents and others whom they think resignation from the Court. Soon after Embry might have some of that precious passed away in 1965, hi s son Lloyd, a promi commodity, "inside information."209 nent portrait artist from Washington, DC, ful filled one of hi s father's la st req uests. Tales of insider trading influenced pas "Carried out under the cover of darkness," sage of the modern securities laws, and the Lloyd scattered his father's ashes on the high profile "peace leak" investigations in Court's grounds.207 volving Baruch and Tumulty allegedly using inside information from the White House strongly suggest that the public was well IV. Guilty as Charged? aware of insider trading, even if Baruch and Embry was not the first clerk alleged to Tumulty did not engage in the practice. If have leaked upcoming opinions. In the story these "vultures" were swarming the streets of that broke the scandal, Pew quoted a conver Washington, DC in 1919, as Pew suggested, sation with Chief Justice White at length. then one can perhaps understand how the Devastated by Pew's news, White related the young Embry, wishing to fin ance hi s bakery following tale: and support hi s family, might fall prey . Despite Pew's seemingly thorough re There have been many rumors of porting, it a ll came from Hammond's mouth, leaks in the past, but I have investi which leads us to Hammond's tale. Hammond gated them and all but one were dis filled hi s reports with gripping detail and dev proved. ili sh quotations, and they read like suspense In that instance an unfortunate novels. This is not surprising, considering man was tempted and fell. He was a Hammond's experience in the publishing minor attache of the court. That man world.2 l o He could take simple facts and was brought face to face with the weave them into stories of intrigue and mys President of the United States at the tery. Yet the incredible detail in his reports White House and made to confess cuts against, rather than SUPPOltS, his story . his awful guilt. A few days later he People rarely speak as they do in Hammond's died under mysterious cIrcum reports, and the repolts come across more as stances.208 vivid imagination than hard information. Assuming Chief Justice White's story is true Hammond's constant involvement in similar (and that Pew, a Hearst employee trying to controversies (involving the White House, the sell newspapers, correctly reported it), it gives State Dep3ltment, German spies, and Pancho credence to Hammond's tale; if it happened Villa), hi s boastful nature, and hi s apparent once, it could happen again. Contemporary mental in stability call hi s credibi Iity into seri - THE CLERK, THE THIEF, HIS LIFE AS A BAKER 37

ous doubt. It is little wonder that Hoover dis ties as Justice. According to Taft, for at least liked Hammond so much. two years, McKenna " was not able to do hard, Yet, despite all of Hammond's flaws, sustained mental work" and his "mental grasp Hoover sti ll thought he was telling the truth was by no means such as it had been."212 In about the Supreme Court leak scandal, and I fact, the situation became so bad that Taft agree. Even if one ignores everything called a meeti ng of the other seven Justices, Hammond said, Embry's actions, along with and all concurred that McKenna could no lon those of hi s associates, speak louder than ger "command his mental energies for such a Hammond's words. If one believes Ames, sustained effort as to make his opinions wor Embry admitted that, on the night before thy of hi s own record or for the Court. "213 Taft Southern Pacific was handed down, he knew met with McKenna's doctor and family, and what the decision would be, met with Graves, eventually convinced McKenna to retire.214 and gave him $5,000. He also acknowledged Assuming that McKenna's faculties began to that he received that amount back plus $600 slip while Embry still clerked for him, that shortly thereafter. Graves admitted to travel would have given Embry, McKenna's sole ing to New York on the midnight train after clerk, ample opportunity for mischief, espe receiving the money from Embry, and meet cially with the docket book that Acheson de ing with Moses that morning. Moses's "edu scribed. cated guess" explanation collapsed under Although this evidence might not have close scrutiny, and the admitted business rela persuaded a jury to convict Embry beyond a tionships between Moses, Mayer, and reasonable doubt (some of it surfacing long Rachofsky only add credence to Hammond's after any trial would have occurred), it con tale. The li st of cases Rachofsky gave to vinces me that Embry leaked upcoming Court Hammond was pelfect, save the one case in decisions to Graves, Moses, and Mayer. Too which Justice McKenna dissented. The many independent pieces of evidence point in dictagraph record ings, though they do not im hi s direction, and he never adequately ex plicate Embry directly, corroborate the gov plained them all away. In any case, Embry ernment's version of what happened. And, fi never looked back; his bakery busi ness nally, Embry guit the job he had loved for boomed while Hammond's life fell apart nine years the day after Ames and the others completely. interviewed him. An innocent man would Ultimately, we will never know exactly have fought harder to keep his job, especially what happened in the fall of 1919, and whether considering Embry's request that his son Embry was a devious con man or merely a Lloyd scatter his ashes on the Court's dupe. The players in this story are all dead, and grounds. much of the evidence long gone. In our mod It is important to note that Justice ern culture of leaks and scandal, it is amazing McKenna's increasing senility provided that a story as sensational as Embry's has van Embry with the perfect setting to carry out ished from the Court's memory, much like the such a scheme. Chief Justice White and Jus case against him. Hopefully what happened in tice McKenna were very c1ose,211 and it is 1919 will no longer remain forgotten. quite possible that White overlooked some of McKenna's flaws. But Chief Justice White died on May 19, 1921 and was succeeded by former President William Howard Taft. ENDNOTES While Taft admired McKenna' s effort and in I A version of thi s article ori ginally appeared in the 2000 tegrity, he became increasingly distressed Northwestern University Law Review, vol. 95, no. I. over McKenna's inab.ility to carry out his du- 2 See Marlen E. Pew, "Secret Service Hunts Court 38 JOURNAL OF SUPREME COURT HISTORY

·Leak ... • Washington Times. December 16.19 19, at 1-2, I.lLetter from A sh ton Fox Embry to Mr. Sorinborger I reponing th at the Depa rtment of Ju stice had interviewed (June 28. 1908) (on file with th e National Archi ves. Ap "a Secretary of one of the members of the Supreme pointment Papers for Departmental Position s. RG 60. Court" rhe day before the Court handed down its decision Stack Area 230. Row 3 1, Companment 13. Shelf 6, B ox in Hamilt on v. Kentucky Distillers & Warehouse Co .. 2S I 74). U.S. 146 ( 1919), co mmon ly known as the "wet-dry" case; 14See id. ; "Obituary, Mrs. G. F. Embry, Widow of Owner " Rumor of 'L eaks' in COlIrt Rulings Is und er Inquiry." of Area Bakery ." Washington Evening Star. February 4. Washington Evening Slar. December 16, 1919, at 29. re 1969, at B4. porting that a minor court "allache" denied any invol ve 15Le tt er from Ashton Fo x Embry to Mr. Sori nborger, ment wit h the affair. supra note 13. l For exa mple, the onl y published biog rap hy of Justice 16See Appointment Pape rs for Depa rtm ental Po si ti ons (on McKenna makes no ment ion of Embry, de sp ite the sca n fil e with th e Nati onal Archives, RG 60 , Stack Area 230. da l and Embry' s long term of serv ice . See Matthew Row 3 1. Compart ment 13. Shelf 6, Box 87). Embry's McDevitt. Joseph McKenna: Associate Justice of the obituary in the Washington Evening Slar stat es that he United States ( 1946). Neither do the biograph ies of "served as sec retary to the So licitor General and Attorney Chief Justice Edward While. a key player in Embry's Genera l during the Theodore Roo seve lt ad ministrati on. case . mention Embry. See Gerard Hagema nn , The Man He laler wa con fidenti al secretary to Supreme Court Ju s on the Bench: A Story of Chief Justice Edward ti ces Josep h McKenna and Edward T. Sa nford." "Obitu Douglas White ( 1962); Robert B. Highsaw, Edward ary, Embry," supra note 4. Close, but not quite. Embry Douglas White: Defender of the Conservative Faith worked for the Anorney General during Rooseve lt's ad (1981); Marie Carolyn Klinkhamer, Edward Douglas ministrati on, then worked for Judge Sanford. He returned White: Chief Justice of The United States ( 1943). Nor to Was hington to wo rk for th e Solicitor General during does the mo st recent look at th e Coun du rin g Embry's the Taft Admi ni strati on and then moved on to the Su service mention the sca ndal. See Walter F. Prall . Jr. , The preme Court. where he clerk ed for Ju stice McKenna. Supreme Court under Edward Douglass White 1910- 17See Correspondence on Appointment of Stenographic 1921 ( 1999). Dean Acheson, who clerked at the Court Clerks, 188 1- 193 1 & 1939-40 (on file with the Nati onal when the scandal broke. makes no mention of the affair in Arch ives, RG 267. Stack Area 17E4, Row 8. Compart hi s book recounting hi s term s of service. See Dean ment 23 , She lf I , Box I ). Hooe served as Ju sti ce Acheso n. Morning and Noon ( 1965). M cKenna's first ste nographic clerk frol11 M arc h I . 1898 4See "Obituary. Ashton F. Embry, Lawyer, Former Gov until his death . Embry took over for Hooe on Janu ary 6, ernment Aide," Wa shington Evening Star, Nove mber 8. 1911. See id. 1965, at C4 [hereinafter "Obituary, Embry" ]. 18See Ches ter A. Newland . " Perso nal Ass istants to Su 5See e- mail from Ashton F. Embry to David Garrow I preme Court Ju stices: The L aw Cl erks." 40 Or. L. ReI'. (Aug. 21. 1998 ) (on file with au thor); e-ma il from As hton 299.3 10 ( 196 1). F. Embry to John Owen s I (Sept. 20. 1999) (on file with 19See id. at 3 11 -12. author). Ashton F. Embry is A shton Fox Embry's grand 2oAcheso n. supra note 3, at 85. son. 2125 1 U.S. 1 ( 19 19). 6See "Obituary, Embry," supra note 4. Georgetown Uni 22 See " Alleged 'Leaks' in Supreme Court." New York versity has no reco rd of Ash ton Embry, but th e sc hool's Tilli es. Dece mber 16. 19 19, at I ; "Leak on W et Deci sion records from that era are inco mplete . It does have records Being Probed Here," Wa shington Herald, Dece mber 16. of As hton Fox Embry, Jr. . Embry's son, who left the 19 19, at I; '''Leak' Rumor Probed," Washington Post, School of Foreign Service for disciplinary reasons. December 16, 19 19, at 5; Pew. supra nOle 2; " Rumor of 7See Appointment Papers for Department al Positions (on 'Leaks' in Court Rulmgs Is under Inquiry." supra note 2. file with the Na ti ona l Archi ves. RG 60. Stack Area 230, 21See Southern Pacific, 2S I U.S. at 15 . Row 3 1. Compartment 13. Shelf 2. Box 63 ). 24 See Pew, sllpra note 2, at 2 (reporting that South ern Pa sSee Appointment Papers fo r Depart ment al Pos itions (on cific stock fell almost 10 perce nt the day the Court an file with the National Archives, RG 60. St ac k Area 230, nounced its decision). Row 3 1. Comparlment 13 . She lf6. Box 74). 25See id. One of the Senate Repons written in conj unc 9See id. tion with the Sec urities and Exchange Commission Act of 10 See id. 1934 described "short selling" this way: IISee Stenograph er Files for Jud ge Edward T. Sanford Short se lling is a device whe reby the speculator (on file with the National Archi ves. RG 60, Stack Area se lls stock which he does not own. anticipati ng th at the 23 0. Box 11 16) price will decline and th at he will thereby be enabled to 12 1d. "cover". [sic] or make delivery of the stock so ld, by pur- THE CLERK, THE THIEF, HIS LIFE AS A BAKER 39

chas in g it at the Jesser price. If the decline materia lizes, RG 60, Stack Area 230, Row 7, Compartment 33, Shelf?, th e short se ller realizes as a profit the differentia l between Box 3369, Straight Numeric File No. 208944 [hereinafter th e sa les price and th e lower purcha se or covering price. File No. 208944]). (S Rep. No. 73-1 455, at 50 [1934]) 33See id. Apparently, the Ju stice Department did not react For an in -depth review of selling stock sho rt in the as quickly as Pew had wished, leading Pew to threaten by pre-1934 Act era, see id. at 50-54. the end of November 1919 to take the case to the Senate if 2~ Lelter from Ashton Fox Embry to Joseph McKenna, the department did not take prompt action. See Memo Associate Justice. Supreme Court of th e United States, 1- randum transcription of phone message to Frank Burke, 2 (December 16, 19 19) (on file with the Nntional Ar Department of Justice (Nov. 26, 1919) (on fi le wi th the chives, RG 267, Stack Area 17E4, Row 8, Compartment National Archi ves, File No. 208944, supra note 32) (mes 73, Shel f I , Box I ). sage of " Mr. Pugh "). 17Lelter from Joseph McKenna, Associate Justice, Su 34See Memorandum from J. Edgar Hoover, Attorney, De preme Court of the United States, to A shton Fox Embry, partment of Ju stice, on John Cra ig Hammond (May 3, 2 (December 16, 1919) (on file' wi th the National Ar 192 1) (on file with the National Archi ves, RG 60, Stack chives, RG 267, Stack Area 17E4, Row 8, Compartment Area 230, Row 7, Compartment 36, Shelf 6, Straight Nu 73, She lf I , Box I). When Justice McKenna penned this merica l File No. 2 14214). respon se , he knew that Embry's legal troubles, and not 35See Memorandum from Aaron Rachofsky I (December the bakery, were the tru e rea son for his now former 24, J 919) (on file with the National Archives, File No. clerk's resignation. See text accompanying note 96 infra._ 208944, supra note 32). See also Letter from Marlen 2RSee " Publicity Hampers 'Leak' In vestigation," New Pew, Editor and General Manager, International News York Times, December )7, 1919, at 10; "Rumor of Service, to Judge C. B. Ames (December 26, 1919) (on 'Leaks' in Court Rulings ] s under Inquiry," supra note 2, file wi th the National Archives, File No. 208944, supra at 29; "S upreme Court ' Leak ' Is Denied," Wa shington note 32). Post, Decem ber 17, J9J9, at 3. 36See Memorandum from Aaron Rachofsky, s'upro note 19See "Ch icago Scene of Leak Investiga tiolJ ," Washing 35, at 1. Before that time, Mayer had severa l posi tions , ton Times, Dece mber 27, 1919, at 2; " D.C. Clean-Up including head of garbage disposal. See id. M ay Follow 'Leak' Probe," Washington. Times, Decem 37Exactly when this' co nversa tion occurred is unclear. ber 17 , 1919, at I; " Four Give Bond in 'Leak' Ca se," According to Rachofsky, it happened about two weeks Wo shillgton Times, Apr. 2, 1920, at 3; " Leak Probe to after the middle of October 19 19. See iri. According to Continue," Washington Times, December 3 1, 1919. at 3; Hammond, it took place after November 10, 19 J 9. See " Leak Traced to Supreme Court Aide," Wa shington Memorandum prepared by J. C. Hammond J (December Ti mes, December 20, 19 19. at I; "May In vol ve Chicago 28, 1919) (on file with the Nat ional Archives, File No. Trader in Leak Probe," Washington. Times, December 26, 208944, supra note 32) (memorandum prepared at the re 1919, at 1; Pew, supra note 2; "Probe of Court Leak ques t of Judge Ames in connection with the Supreme Nears End," Washil1glOJ! Times, December 29, 19 19, at 2; Court matter). "Scope of 'Leak' Probe Broadened," Wash.ingfOn Times, 38See Memorandum prepa red by J. C. Hammond , Slfpra December 18, 1919, at I ; "Seek D.C. M an Who Phoned note 37 , at I. Hammond and Rachofsky disagreed as to ' Leak ' Tip," Washington Times, December 19, 1919, at J; when Rachofsky lea rned of the leak sc heme. Rachofsky "Supreme Court 'Leak' Evidence Is Given to Laskey," sa id th at he learned of the sc heme the sa me time as Washin gton Times, Dece mber 30, 1919, at I; "S upreme Hammond did; see M emorandum from Aaron Court Leak Probe Yields Results," Wa sh.ington Tim es, Rachofsky, supra note 35, at 1-2. Hammond alleged that December 23 , 1919, at I ; "Trail I s Warm in Lea k Probe, " Rachofsky knew about the scheme long before he did; see Washington Times, Dece mber 22, 19 19, at I. While other Memorandum from J. C. Hammond in rep ly to Aaron papers covered the leak scanda l (see ,wpra note 28 ), none Rachofsky's statement (December 26, (919) (on file lVi th did with the vigor of Pew and the Wa shington Times. the National Archives, File No. 208944, supra note 32). 3O Pew , ILfpra note 2, at I. Both th e New York Times and 39Memorandum prepared by J. C. Hammond, supra note an internal Ju stice Department memoran dum confirm 37 , at I. Pew' s imporram ro le in the case. See sources cited supra 40Baruc h defended himself aga inst these charges at a con note 22 , inji-o note 33. gressional hearing and emerged un scathed . For a com 31See Pew, supra note 2, at 2. prehen sive biography of Baruch's life, including the 3~See Memorandum from Judge C. B. Ames, Ass istan t to "peace note leak" investi gation, see James Grant, Ber the Attorney General, Department of Ju stice, entitled nard Baruch: The Adventures of a Wall Street Leg " Memorandum Relative to the Supreme Court Leak Mat end (1983) at 141- 155. ter" I (May 6, 1920) (on file with th e National Archives , 41Memorandum prepared by 1. C. Hammond, supra note 40 JOURNAL OF SUPREME COURT HISTORY

37, at 2. Oddly, only a few mon ths later, Hammond in 5~ !d . This reverence for the Court fails to ex plain wh y vestigated his " friend ," Baruch, for illega l sa les of Phe Hammond ad mittedly leaked th e South ern Pacific deci nol. See infra notes 178-185 and accompanying te xt. sion to his friends. See supra note 48 and accompanying 4225 1 U.S. 146 ( 1919). text. 43See M emorandum prepared by J.e. Hammond , supra 59 1d. note 37, at 2-3 (emphasis added). Again, Rac hofsky de 6U /d. at 5-{i. nied he ever made these comments. See M emorandum 61 He to ld Pew of the scanda l, but initially left out from Aaron Rac hofsky, supra note 35. Rachofsky's involvem ent because he "was willing to give 44See id. There is some evidence suggesting that one of him a chance." !d. at 6. In his report on Hammond , Hoo th ose prior rumors was tru e. See infra tex t accompanying ver highl ighted Hammond's selective memory concern note 208. ing Rac hofsky as an example of his unreliabi lity. See 45Someone, presumably a government inves tiga tor, cop M emorandum from J. Edgar Hoover. supra note 34, at 4- ied this list onto Department of Ju stice letterhead. See 5. This omission also did not please Pew . See Letter Inves tiga tor's notes (on fi le w ith the National Archive s, from Marlen Pew to Judge e. B . Ames, supra note 35. File No. 208944, supra note 32). The six cases on the 62 M emorandum prepared by J. e. Hammond, supra note list for which the outco me was correctly predicted are: 37, at 6. McClaskey v. Tobin, 252 U.S. 107 (1920); New York 6J/d. at 7. CenTral Railroad Co. v. Biall c, 250 U .S. 596 ( 1919): 64 !d. at 9. UniTed SlaTes v. Board of COIllIJJ 'n of Osage COUllt)', 65 1d. at 10. 25 1 U.S. 128 (19 19); Balle II. Comm'rs of Marion 66 ld. at 12. COUllty, 25 1 U.S. 134 ( 1919): Sullivan v. City of Shreve 67See Inves tigator's notes, supra note 45. The "Acheson" port, 25 1 U.S. 169 ( 1919); and Schall II. Camors, 25 1 ment ioned is Dean Acheso n.

U .S. 239 ( 1919). Oddly, th e Court decided New York 6~ Memo r a ndum prepared by J. e. Hammond, supra note Central Railroad Co. on November 10, 1919, a week be 37, at 14. fore Rachofsky allegedly gave the list of cases to 69' 'Trail I s Warm in Leak Probe," supra note 29, at I . Hammond. 7UTransc ript of notes taken from conversa tions in Room 4625 1 U.S. 519, 523 (l920). 939, New Willard Hotel , Washington, D .e., MID File 47Memorandum prepared by J.e. Ham mond, supra note 996 1-3684, at 1-2 (on fi le with the Nati onal A rchives). 37, at 3. 71 See id. : see also ''Trail Is W arm in Leak Probe," supra 4~ A ccording to Hammond's memoran dum. " I did not note 29, at I . Oddly, these dictagraph tran scripts are not then, now or will [ ever profit one penn y" fro 111 the SOllth i n the case file, but in Hammond's M ilitary Intelligence ern Pacific information. /d. at 4. Di vision file. 49See Southern Pacific, 25 1 U.S. I . n It is unknown whether the Department as ked the Court 50 See Pew, supra note 2, at 2. to delay th e announcement of irs decision. Sl At this point, Hammond did not know th at Graves and 73Transcript of conversa tion between Ham mond, M oses. the Justice Departmen t source were one and the sa me. and Mayer at Hammond's apartment. December 8, J 9 l9. See M emorandum prepared by J. e. Hammond , supra MID File 996 1-3684, at 7 (on file with the National Ar note 37, at 4. chives). The transc ript of this conversation does not iden 52See id. ti fy the speakers. 53 1d. 74See ''Trail Is Warm in Leak Probe." supra note 29. 54 See Memorandum from J. Edgar Hoover on John Craig Rachofsky claimed th at he knew Ham mond was not Hammond , "upro note 34, at I . According to Heller drunk. bu t played along. See M emorandum from Aaron Halliday, the granddaughter of Hammond, her grandpar Rachofsky. supra note 35, at 3. ents never reconciled their differences. See Te lephone in 75Transcript of conversa tion between Hammond, M oses , terview with Heller Halliday (Sept. II , 1999). and Mayer at Hammond's apart ment , supra note 73. at J. 55 M emorandum prepared by J. e. Hammond, supra note I presume this is Moses explaining the situ ation in light of 37, at 2. his earlier conversations with Hammond. 5fi ld. Hammond agai n bragged that he knew " a great 761d. number of Washington men who are in the tipping busi 77 Id. at 2. ness: that I know th at now and then men do get real infor 7s ld. at 5. mati on and use it to their personal advantage or give it to 79See Memorandum from Aaron Rachofsky, SIIpm note th ei r clients." Id. ar 7. However, even an old pro like 35, at 3-4.

Hammond thought it imposs ible that someone was "cor 8USee Hamilton 1'. KellTUcky Distillers & Warehousl! Co., rupting the Su preme Cour1 .'· rd. 25 1 U.S. 146 ( 1919). 571d. at 5. ~ISee Pew, supra note 2. THE CLERK, THE THIEF, HIS LIFE AS A BAKER 41

82See Memor~ndum from Judge C. B. Ames, sLlpra note 32, at3. Embry Inter admitted that he knew the ho lding of 32, at 2. Southern Pacific prior to meeting with Graves at the bak 8'See Appointment Pape rs for Departmental Positions (on ery. See text accompanying note 123 infra. file with the National Archives, RG 60, Stack Area 230, IOC) Memorandum from Judge C. B. Ames, supra note 32, at Row 3 1, Compart men t 13, Shelf 2, Box 87). 3. A ss istant Attorney General Ames also wanted to speak M4See Appointment Papers for Departmen tal Posi ti ons (on with John Embry, Ash ton's brother, on December 15, file with th e Na tional Archives , RG 60, Stac k Area 230, 1919, but John' s bu sy lec turing sc hed ule (which included Row 31, Compartmen t 13, Shelf 2. Box 63). a talk with some ru bber manufacturers) prevented a meet

8~See id. ing that day. See Leller from John Embry to M r. Ames 86See Appointmen t Papers for Departmental Positions, (December 15, 19 19) (on file with the National Archives, supra note 13. Fi le No. 208944. supra note 32). It is unknown whether in 87See United States v. Virginia-Carolina Chem. Co., 163 ves tigators met with John Embry at a later date. F. 66 (M .D. Ten n. 1908). Sanford beca me a federal dis IOIMemorandum from Judge C. B. Ames, supra note 32, trict j udge in 1908. Because of the no(n inati on by Presi at 8. dent Harding. Judge Sanford became Justice Sa nford in 102 /d. 1923. I03See Su pplemental memoranda from R. P. Stewart as to RX"Four Give Bond in 'Leak' Case," SLlpra note 29. Supreme Court Leak M atter 2 (May 29, J920) (on file ~9See Memora ndum from Judge C. B. Ames, supra note w ith th e National Archives, File No. 208944, supra note 32, at 3. 32). YO I re ly on Ames's memorandum for thi s information, but I04Memorandum from Judge C. B. Ames, supra note 32, his recol lection diverged from Davis's on this point. Ac at 9. cording to Davis, Graves said that he first met Moses in I05This meeting took place between Mayer, Burke, Davis, Mississippi while working on an overtlow case in which and Assi stant Attorney Ge neral Robert Stewal1. Ass is Moses repre sented the clai mants. See SuppJementa l tant Attorney General A mes wa not pre sent. memoranda from Frank Davis, Jr., entitled " As to Su H16St!e Supplemental memoranda from R. P. Stewart, preme Court Leak Matter" I (May 7, 1920) (on file with supra note 103, at 4. the National A rch ives, File No. 208944 , supra note 32). I07 /d. Accordi ng to Pew, Graves met M oses in Tennessee while 108 /d. at 3-4. working on the Mississ ippi overflow case . See "Four I09Jd. at 4. Give Bond in 'Leak' Case," supra note 29, at 3. I I OSee Acheson, supra note J, at 85 . 91See Memorandum from Ju dge C. B. A mes, supra note (11"Probe of Court Leak Nears End," supra note 29, at 2. 32, at 3. 112See "Supreme Court ' Leak' Evidence Is Given to 92Set! Supplemental memoranda from Frank Davis, Jr. , Laskey," supra note 29, at I. supra note 90. at 2. Davis's recollection of the co nversa IUThe witnesses who presented testimony to the grand ti on differs from Ames's. According to Ames, Graves j ury included Ames, Stewart (the Assis tant A llorney Gen admitted spending Sund ay night as well in Moses's hotel era l who int erviewed Mayer), Joseph J. McCann, room. See Memorandum from Judge C. B. Ames , sLlpra Rac hofsky, Howe (the stockbroker), Kiefer (the law clerk nOte 32, at 3. who met with Embry th e night before the Court ao 9.1See M emorandum from Judge C. B. Ames, supra note nounced its decision in SO llthem Pacific), and Ham mond. 32, at 4. McCann 's role in the case is unclear. 94 /d. II4See M emorandum of conversa tion with Mr. Em bry 9~See id. from C. B. Ames (Jan. 2 1, 1920) (on file with th e Na 96Considering that all thi s happe ned the day before ti onal Arch ives, Fi le No. 208944, supra note 32). It is Embry tendered his resigna ti on, Justice Mc Kenna mu st hard to believe that Embry, a sopbisticated lawyer, would have known that the bakery was not the real reason for his meet with law enforcement without counsel, but he ap law clerk 's exit. parently did so on at least three separate occasions. 97Mahlon Kiefer served as law clerk to Justice Van IlsSee id. at 1-2. Devanter. He went on to work at the Ju sti ce Department, 116See id. at 2. Apparently, thi s " Ji st" is different from th e becoming an expert in Prohibition law . See George Ken book that Acheso n described. See supra te xt accompany nedy, "The Depa rtment Says Good-by to Kief," Washing ing note 28. fUn Tim es, May 2, 1951. II7Mem orandul11 of conversation with Mr. Embry from 9RAccording to Dav is, Embry did not mention the Liberty C. B. Ames, supra note 11 4. Bonds during this initial meeting. See Supplemen tal J 18See M emorand um of conversa tion with Mr. Embry memoranda from Frank Da vis, Jr., supra nOte 90, at 2. from C. B. Ames (Mar. IS, 1920) (on tile with the Na 99See Memorandum from Judge C. B. Ames, supra note tional Archi ves, File No. 208944, supra note 32). 42 JOURNAL OF SUPREME COURT HISTORY

11 91d. at 2, 482 (Brewer, J.• concurring); id. at 483 (McKenna, J,. 12old, Wh at Embry did not know was that the grand j ury concurring). had already returned its indictment agai nst him, See infra 142Petition for certiora ri . supra note 140, al 52, note 125, 14 l /d. at 53. 121See M emorandum flsm Herron to Jud ge Ames (De IMld, at 61. ce mber 5, 1919) (on file with th e National Archives, File 14;See Brief in Opposi ti on. at 2-7, Embry v. United No, 208944, supra note 32), Slates, 257 U.S. 655 (1921) (No, 59 3), 122 2 16 U,S, 462 ( 1910), 1"61d. al 2 (qooting Field v. Uniled States, 205 U,S, 292. 12lld, at 478-80, 296 [ 1907)), 124 Memorandum from Herron to Jud ge Ames, supra note 1

ence in his application to the MID, claiming to have However, it does not appear th at J. Edgar's cousin John known him for fifteen years. See List of references for had any involvement in thi s case. John Craig Hammond (on file with the National Ar 168 Memorandum from J. Edgar Hoover on John Craig chives, MID File No. 9961-3684). Hammond, supra note 34, at I. Pew reported on a couple of occasions that the in 1691d. at 9. vestigation was focusing Oll a Chicago connection. Sec 170This is not surpri sing, considering that Hoover copied "Chicago Scene of Leak [nvestigation," supra note 29; much of hi s report directly from the reports of others. For "May [nvolve Chicago Trader in Leak Probe." supra note example. Hoover's lin e that Hammond "is a great bluffer, 29. Apparently, nothing came of thi s phase of the investi toots hi s own horn continuously" reads very much like gation. Hunter Marston's 1918 MID report, which states that 158Lelter from J. C. Hammond to Judge C.B. Ames. supra Hammond "is a great bluff. toots hi s own horn inces note 156. santly." Mem orandum from Major Hunter S. Marston to 15~For a comprehensive biography of Tumulty, see John Chief of th e Military Intelligence Division (Aug. 17, M. Blum, Joe Tumulty and the Wilson Era ( 1969). 1918) (on t,le with the National Archives. MID File Like Bernard Baruch, Tumulty was accused , but ulti 9961-3684). mately cleared, of profiting from the "peace note leak." 171For an in-depth look at the American Protective Id. at 122- 129. League, see Joan M. Jensen, The Price of Vigilance 16(JSee Memorandum from Hunter S. Marston about John (1968). The Justice Department disbanded the league C. Hamm ond (Aug. 18, 1918) (on file with the National soon after the end of World War l. See id. at 240- 256. Archives, MID File 9961-3684). I72See Memorandum from Marlen Pew to Colonel Chur InlLelter froll) Judge C. B. Ames to Mr. 1. C. Hammond chill (July 8, 191 8) (on tile with the National Archives, (May 6, 1920) (on file with the National Archives, File MID File 9961-3684). No. 208944, supra note 32). m Memorandum from Major Hunter S. Marston to Chief 162S ee Letter from Judge C. B. Ames to Mr. John Laskey of the Military Intelligence Division, supra note 170. (May 6. 1920) (on lile with the National Archives, File 174Why Hammond craved a position with MID is unclear. No. 208944, supra note 32). Hoover specu lated that Hammond wanted to work for 16JThe MID files on John Hammond are far more thor MID to win back hi s wife. See Memorandum from J. ough than the files on Embry and the others. A truly mys Edgar Hoover on John Craig Hammond, supra note 34 , at terious man. Hammond deserves his own article. l. lMlsaac Ma rcosson, "German Poi son," Saturday Evening 17SSee id. at 4. POS!, March 23, 1918, at 17 ,8 1, 84. According to the ar 176 See Letter from General Churchill to John Craig ticle, the German sympathizer (Hammond) would flash Hammond (December 30, J 919) (on file with the Na the letterheads of public figures to suggest they were on tional Archives, MID File 9961-3684). close terms. However, these letterheads later turned out 177See Memorandum from J. C. Hammond to Major Pe to be nothing more than routine form letters. Hoover also ters (on file with the National Archives, MID File reported that Hammond often used this personal puffery 9961-3684). Apparently, MID heeded his request. scheme. See Memorandum from J. Edgar Hoover on Hammond's name does not appear in any of the newspa John Craig Hammond, supra note 34, at 9. per repo rts about the scandal. 105See Memorandum from J. Edgar Hoover on John Craig I7RPhenol is a compound derived from coa l tar and is used Hammond, supra note 34, at 7-8. as a disinfectant and antiseptic. 166See Letter from R. P. Stewart to Francis G. Caffey 179Memorandum to MUI3 from General Churchill (Mar. (Feb. 21,1921) (on file with the National Archives, Fil e 19, 1920) (on file with the National Archives, MID File No. 208944, supra note 32). 996 1- 3684) 167 Long-time FBI director J. Edgar Hoover had a cousin 180See Letter from Edmund A. Buchanan to Mr. J. C. who also worked at the Justice Department named John Hammond (Apr. 20, 1920) (on file with the National Ar Edgar Hoover. [n fact, John Edgar started at the Depart chives, MID File 9961-3684). ment before J. Edgar did, and even clerked at the Su I~JSee Telegram from 113 to Colonel Arthur G. Campbell preme Court with Embry for a while . See Richard Gid (Apr. 23,1920) (on file with the National Arch ives, MID Powers, Secrecy and Power: The Life of J. Edgar File 9961-3684). Hoover (1988) at 160; Anthony Summers, Official and 182S ee Letter from General <;hurchill to John C. Confidential: The Secret Life of J. Edgar Hoover Hammond (Apr. 26, 1920) (on file with the National Ar ( 1993) at 27; Appointment Papers for Departmental Posi chi ves, MID File 9961-3(84). tions 1850--191 3, Law CJerks & Administrative Offices 18.1See Letter from J. C. Hammond to General Churchill 1909-1913 (o n file at the National Archives, RG 60, (Ma y 12, 1920) (on file with the National Archives, MID Stack 23(), Row 3 1, Compartment 13, Shelf 7, Box 99). File 9961-3684). 44 JOURNAL OF SUPREME COURT HISTORY

IR4Leller fro m J. C. Hammond to General C hurchill (May way. See E-mail from Ashton F. Embry to David 24, 1920) (on file with the National Archives, MID File Garrow, supra note 5. 9961-3684) 200See City Directo ri es of the United States, Washington, IR5See Lelle r from Major lames L. Collins to Mr. J. C. DC, 1926. Hammond (Feb. 12, 1921) (on fil e with the National Ar 20l See City Directories of the United States, Washington, c hi ves, MID File 996:1-3684); Lette r from A. B . Coxe to DC, 1927. Mr. l . C. Hammond (June 5, 1920) (on fi le with the Na 202See City DireClories of the United States, Washington, tional Archi ves, MID File 9961-3684). DC, 1934. 186Memorandum from l . Edgar Hoover on John Craig 20JSee City Di rectories of the United States, Washington, Hammond, supra note 34, at 9. DC, 1935. 1 ~7See Memorandum about request for inform ati on about 204See City Di rectories of the United States, Washington, J. C. Hammond (Nov. 1,1923) (on file with the National DC, 1923. Arc hives, MID File 9961-3684). 205See City Directories of the United States, Washington, IS~See Memorandum from W . K. Naylor to th e Assistant DC, 1934. and Chie f Clerk, War Department (Nov. 2, 1923) (on file 206See Obitu ary, supra note 194. with the Nati o nal Archives, MI D File 996 1-3684). l07E-mail from Ashton F. Embry to David Garrow, supra IS9Memorandum fro m J. Edgar Hoover on John Craig note 5. Interestingly, Lloyd scattered Ashton's ashes on Hammond, supra note 34, at 6. the grounds of the current Court, which is not where Ash 1905ee Telephone interview with He ll er Hall iday, gmnd ton physically clerked. The currenl Court building was daughter of John Craig Hammond (Sept. I I, 1999); Tele comple ted in 1935: from 1860 until then. the old Senate phone interview with Manhew Weir, great-grand son of chamber in the Capitol housed the Supre me Court. See Jo l1n Craig Hammond (Sept. I I, 1999). The Oxford Companion to the Supreme Court of the 19lIncidenLally, Richard Halliday went on to become a United States (Kermit L. Hall, ed., 1992) at 102 [herein prominent Broadway producer who married Mary Martin after Oxford Companion to Court). of Peler Pan and Sourh Pacific fame. Mallin was also the 2USPew, supra note 2, at 2 (quOling Chief Justice Edward mother o f Larry Hagman, "l .R. Ewing" of te levision's White). Pew again related this story two weeks later: " Dallas." See Mary Martin, My Heart Belongs ( 1976). "There has never been ... but one other case where a leak Fo r Mary Martin's brief description o f John Hammond , in the decisions of the Supreme Court o r the United States see id. at 98-99. was suspected. In that case the culprit turned out to be a 192Memorandum from J. Edgar Hoover on John Craig minor attache of the court. ... [That case) was rollo wed Hammond, supra note 34, at 4. by swift retribution." See " Leak Probe to Continue," 1935ee id. supra note 29, at 3; see also "Four Are Indicted fo r Court 1945ee "Obituary" for Barton Stone Embry, Washingrol1 'Leak,'" slIpra note 38, at 2 ("The secretary to one of the Times, June 12, 1956, at A 16. Apparently, Graves's in justi ces was reported to be giving o ut advance informa volvement with the bakery e nded when the scandal broke. ti on regarding decisions about fifteen years ago, but the 195C ity Di rectories of the Un ited Slates, Washington, DC, charges were never s ubstantiated and no action was ever 1920. Over the years, the exact name of hi s bus iness Lake n" ). changed, but always included Barker. These names in 2()l)" D.C. Clean-Up M ay Follow ' Leak' Probe," supra cluded Barker Original System of Bakeri es. Bark er Origi note 29, at 15. nal System Bakery, Barker Bakeries, Inc., and Barker 2IUSee Memorandum from J. Edgar Hoover on John Craig Bake Shops, Inc. Ha mmond, supra note 34, at 1. I96See E-mail from Ashton F. Embry to David Garrow, 11i See Pratt, supra note 3, at 18. supra note 5. 212 William Howard Taft, Confidenti al Memorandum 1,5 1970biruary, supra note 194. (No v. 10, 1924) (on file with author). 198(; it y Directories of the United States, Washington, DC, 21 31d. at 2. 1934. 114See id. at 6--7. McKenna resigned on January 5, 1925. 199 Hi s grandson, Ashton F. Embry, described him this See Oxford Companion to Court, supra note 207, at 986. Human Dignity and the Claim of Meaning: Athenian Tragic Drama and Supreme Court Opinions

JAMES BOYD WHITE

I am going to bring together what may seem at first to be two extremely different institu tions for the creation of public meaning, namely classical Athenian tragedy and the Supreme Court opinion. I My object is not so much to draw lines of similarity and distinction between them, as a cultural analyst might do, as to try to capture something of what I believe is centrally at work in both institutions, in fact essential to what each at its best achieves. I can frame it as a question: How is it that the best instances of each genre (for I will be talking only about the best) work to resist the ever-present impulse to trivialize human life and experience--certainly weJl known in our own era-and instead confer upon the individual, and his or her sufferings and struggles in the world, a kind of dignity? I think that something like this is in fact the core of the most important achievements of both institutions, and that in both cases it is simultaneously imaginative (or literary) and political in nature. I mean not to make an especially original Dickinson-somehow dignifies or exalts the or controversial point, but to call upon a fa human, marking out possibilities for signifi miliar and widespread intuition. I assume that cance in life, in our lives, that can serve as a we all sometimes have the feeling that what ground of hope in a universe full of confusion we are reading-or watching or hearing and suffering. We can't easily explain how it trivializes human experience, reducing it to happens, but in the first case we come away something unimportant or insignificant and somehow ashamed of being a human being, in stimulating a kind of cynicism or despair. But the second, proud and glad to belong to such a of course we also sometimes have the oppo species. site feeling, that the expression or action to Speaking of my own experience, and I which we are exposed-the Bach cantata, the hope yours too, at least some theatrical pro painting by Vermeer, the poem by Keats or ductions, and some Supreme Court opinions 46 JOURNAL OF SUPREME COURT HISTORY too, give me the second (and better) kind of performance of tragedy was a highly public response, and in this talk I want to explore and intensively competitive event which oc how and why that happens. r shall not summa curred in its full grandeur only once a year, al rize my conclusions now except to say that a the great festival of Dionysus. Only three dra large part of my attention will be on the way matists were permitted to compete; they were in which both the dramas and the opinions I chosen several months ahead of time, and shall examine imagine human beings as given that period in which to perfect the per speaking creatures-on what, that is, they formance of the four-play sequences they had make speech mean. This will lead me to sug submitted. What we might call "rehearsal" gest at the end what I mean as a major point, was no small or casual matter; it cost roughly that it is in our capacity for claiming meaning as much to train a chorus for a single set of for experience that our deepest dignity lies, plays as it did to keep a warship at sea for a and that it is in the denial of that capacity, and year, and rich men were called upon by the what it says about us, that the essence of state to bear this burden. The plays were per trivialization can be found. formed at the Theater of Dionysus, next to the Acropolis; they were then judged, by officials I shall begin with what I assume to be the or by the crowd, with prizes of great honor less familiar form, Greek drama, and then turn awarded for the best play, best actor, best cho to the law. rus, and so forth.2 First, some background. In Athens the The tragic theater was a cultural form , an

In Athens, the performance of tragedy was a highly public and intensely competitive event, which occurred in its full grandeur only once a year, at the great festival of Dionysus. It cost roughly as much to train a chorus for a single set of plays as it did to keep a warship for a year. The plays were performed at the Theater of Dionysus (pictured), next to the Acropolis. HUMAN DIGNITY AND THE CLAIM OF MEANING 47

occasion for the making of public and shared to persuade the gods to let him go-a terrible meaning, that had certain ways of working. crime that Clytemnestra will later invoke as a These were naturally realized differently by justification for her own terrible crime. Soon different playwrights and in different plays, after, a messenger arrives to describe the sack but running through this body of work there of Troy, in his vivid account bringing directly are three important strands that I would like to before the other characters within the play bring to your attention. As we shall later see, and before the audience in Athens, too-these these three strands, perhaps surprisingly, have remote and perilous happenings. analogues in some of the best opinions of the I wish to draw attention here to a rather Supreme Court. simple fact, namely, that the drama brings into the space we calJ the theater, and before the minds of the people of Athens, imagined Bringing the Remote Into the events that are distant in both time and place. Circle of Attention Thus the audience is here asked to imagine I shall begin with the great trilogy of Aes Mycenae at the time of the fall of Troy, Troy chylus called the Oresteia. The first play, the itself, the chain of mountain tops running Agamemnon, te.ll s the story of that hero's re from Troy to Mycenae, the sacrifice of turn to Mycenae from the Trojan War, and how Iphigenia ten years earlier, and so on.3 he is shamefully killed-in his bath-by his In an age of television, movies, newspa wife Clytemnestra and her lover Aegistheus; pers, and the Internet, it may be difficult to see the second play tells how her son Orestes, com this for the surprising and powedul cultural manded by Apollo to avenge this murder of his phenomenon it was, for we are besieged with father, kills his mother; the third brings on communications that invite us to imagine the stage in pursuit of Orestes the Eumenides, the remote and distant. But these plays took place dreadful furies who punish the shedding of in a different kind of world, one in which this kindred blood. Orestes finds refuge in Athens, was a real invention. In bringing on stage, and where he is tried for his act by a court and jury into the conscious imaginings of the people, established for the purpose. He is acquitted, for events that were remote in time and space, the he was acting under divine compulsion in the drama invited the audience to connect them form of explicit orders from Apollo. The tril selves to the distant. This was, I think, one of ogy thus ends with the establishment in Athens the central functions of the Athenian theater, of courts of justice; courts that will, in the fu and it had a perhaps surprising political and ture, break a chain of vengeance such as that ethical significance.4 which plagued the house of Atreus, and do so Think, for example, of another play by by imposing sanctions for homicide that them Aeschylus, The Persians. This tells the story selves do not occasion blood guilt. of the great naval battle at Salamis, at which The Agamemnon begins with a watchman the Athenians destroyed the Persian invaders. in Mycenae waiting, at dawn, for the beacon Writing ten years after the battle, Aeschylus of light that will announce the victory at locates the action of his play surprisingly in Troy-for Clytemnestra has arranged for fires Persia itself, where we see the royal women of to be lit on mountain top after mountain top, Persia awaiting news of the expedition. The to bring this news across the sea in a single audience sees these events, not from the point night. Next, the chorus, in a song about the of view of Athens, as a wonderful triumph, events that have led up to the present, tells but from the point of view of the Persian how Agamemnon, on his way to Troy ten women, for whom it is a di saster and with years earlier, his fleet held in harbor by ad whose suffering one must sympathize. Of verse winds, sacrificed his daughter Iphigenia course, the audience is really Athenian, so 48 JOURNAL OF SUPREME COURT HISTORY

The Persians tells the story of the great naval battle at Salamis in 480 B.C. at which the Athenians destroyed the Persian invaders. Aeschylus, who wrote the play ten years after the battle, chose to tell the tale from the point of view of the royal women of Persia awaiting news of the ill-fated expedition.

they actually see it both ways at once-they pride by the recognition of the terrible Joss it are forced to do so-and that double vision is brought to others. He is also telling the Athe a central part of the meaning of the play. nians that they should guard against the heady At the climax of Th.e Persians, a messen overconfidence that might otherwise naturally ger reports the story of the battle itself, to arise in them from the victory. In a real sense which he was an eyewitness-telling how the this play is thus a teaching play, teaching the Persians were tricked into rowing around the public something crucial about its moral situ island of Salamis all night, then penned into a ation, as the Oresteia taught it something narrow bay from which they could not escape. about its central institutions-in both cases, These events in fact took place just a few by bringing to awareness what is distant in miles away from Athens-the audience can time and space, and morally distant too. see the mountains of Salamis from their It is not just that the theater carries distant seats-which means that in this play, occur events before the consciousness of the people. ring in Athens but set in Persia, Athens itself It brings into the light of day facts-or forces is brought on stage, simultaneously into the or ideas or impulses-that are normally re~ imagined world of Persia and the real world of pressed or hidden: the reality of the experi Athens itself. The play thus makes Athens ence of the Persian women, for example, or of look at itself as it appears to others. the murdered Iphigenia, or the psychic and In setting the play up this way, Aeschylus moral forces represented by the FUlies in the is I think talking to his citizens about their Eumenides-monstrous deities who normally own world, simultaneously stimulating pride live out of sight, underground, so hideous in in their great victory and disciplining that the performance, says one account, that HUMAN DIGNITY AND THE CLAIM OF MEANING 49

women miscarried at the sight of them. Per especially the opinion of the Supreme Court haps the most famous example of this habit of of the United States. There are, of course, ob bringing on to the stage what in a deep sense vious differences between these forms of is felt to belong off it is the Oedipus Tyrannos speech and life, but I think there are also sig of Sophocles, where, as Freud helped us see, nificant parallels. What we call the Supreme some of the most profound and disturbing of Court is in an important sense not this build human psychological forces are brought di ing, nor the nine men and women who sit on rectly into the consciousness of the audience, the Court, nor even all those who have done as it contemplates Oedipus' violation of the so in the past, but an entity that exists primar central taboos against incest and parricide. ily in cultural and imaginative and political A particularly striking instance of this space. It is a public arena, bounded by its own impulse lies in the theater's treatment of structures and rules, one function of which is women. In the world of Athens, women had a to bring certain stories and the problems they legal and social position mainly as the posses present into public attention, not for the sake sions of men, whether fathers or husbands; of entertainment but in some sense for educa even in procreation they were imagined to tion or enlightenment. Likewise, it has its own contribute nothing to the child except a kind sense of time, in which the remote is brought of oven in which the male seed could grow; into the present. The time and space it creates and they themselves had no property and no and within which it works are in a sense of its civil rights. Yet by all three dramatists they own making; it is the Court itself that gives are represented on stage as psychological and significance and reality to these dimensions of moral actors who are in every sense (except its existence; and it does so in the form which power) the equal of men. It may be indeed that its great Chief Justice Marshall did much to such figures as Antigone and her sister invent, the opinion of the Court.6 Ismene, Phaedra, Medea, and Alcestis are the Like the ancient theater of Athens, the most deeply and fully realized women in Court is thus an institution for the making of Western literature until Shakespeare, perhaps shared and public meaning. What is more, it even Jane Austen. It is hard to know how fully shares the more particular feature I have just to explain this phenomenon, but I think it is described, for it too regularly brings into the another expression of the general impulse to circle of public attention events and people put on stage what is real but unseen-a part of and places that are normally overlooked or ex life that is normally excluded from the vision cluded or just not seen. This is in fact one of of the male citizens who made up most of the its central functions. audience.5 As a way of exploring how this works in In aJl of these ways the drama works as a a particular instance, I now turn to Cohen v. way of expanding and intensifying our sense California, a famous First Amendment case to of what it means to be human, making it pos which I shall refer throughout this article.? Its sible to pay attention to what we had not fully facts reflect the era of the Vietnam War, in seen before. This kind of drama is not merely cluding protests against it. The defendant, a kind of entertainment, but a major public Paul Robert Cohen, wore a jacket bearing the and political event, one of the purposes of words "Fuck the Draft" while walking down a which, at the hands of the three great geniuses corridor of the Los Angeles municipal court whose work we have, is educative and house. He was then arrested and convicted of transformative. violating a California penal statute that made it an offense to "maliciously and willfully dis I want now to turn from Athenian tragic turb the peace or quiet of any neighborhood or drama to the form we call the judicial opinion, person ... by ... offensive conduct." The de- 50 JOURNAL OF SUPREME COURT HISTORY

One of the central functions of the Supreme Court, like Athenian tragedy, is to bring to attention events and people that are normally overlooked or excluded. In this article, the author compares Cohen v. California (1971), a Supreme Court decision involving a Vietnam War draft protester, to Greek drama.

fendant engaged in no other conduct alleged served in the Los Angeles County Courthouse to disturb the peace. The state court imposed a in the corridor outside of division 20 of the penalty of thirty days in jail. The Supreme municipal court wearing a jacket bearing the Court, in an opinion by Justice Harlan, re words 'Fuck the Draft' which were plainly versed the conviction. visible."8 He thus quotes the language but dis The judicial process here brings into a tances himself from it. zone of public awareness material that is nor This is not the only way in which the re mally unseen, most obviously and dramati pressed or unknown is brought by the opinion cally, and perhaps a bit embarrassingly, in the in Cohen to a place where it can be seen and use of the word "fuck"-a word which, al thought about and responded to in a new and though known, I assume, to almost all English deeper way. Mr. Cohen' s story was from al speakers, is normally used only on certain most a ll other perspectives a trivial one, a kinds of occasions, with certain kinds of audi minor skirmish in the national war about the ence, and is definitely excluded from most war. He was not, so far as I know, otherwise formal discourse, certainly the discourse of an important person in the world, but just a the Supreme Court of the United States. Jus young man opposed to the draft. This was a tice Harlan marks the distance between this case of no political or public significance until term and the language of the Supreme the COUlt made it so, saying that despite the Court-and the decorous conversation he apparent triviality of the event the issues pre seeks to establish with hi s readers-by the sented here-presented, that is, by the law way he recites the facts of the case, not in hi s yers, and seen and articulated by the Court in own words but those of the California court: this very opinion-"are of no sma ll constitu "On April 26, 1968, the defendant was ob- tional significance."9 HUMAN DIGNITY AND THE CLAIM OF MEANING 51

This process-giving significance to the meaning of the Vietnam War. But the Jaw apparently insignificant- is a major part of cannot think in such terms; it must fashion it what the Court regularly does. Think, for ex self to meet the particularities of the case as ample, of a case like Powell v. Tex.as, 10 where these emerge in thought and argument. And an alcoholic pauper was thrown into jail over when the bright light of attention is focused night to sober up, to all the actors as minor on what we have not seen, or not seen clearly, and routine an event as occurs in police work; it almost always reveals a complexity and the Supreme Court made this the object of richness of significance that we had missed, learned, and contrasting, reflections on the thus putting in question, among other things, conditions upon which the state may punish our own prior habits of mind and imagination. conduct as criminal, especially conduct aris In the Cohen case, the large issue-that of the ing from disease, in a set of opinions that draft and the war itself- is, of course, on ev might have remade criminal law in this coun erybody's mind. What the law does here is try .11 In this case-as in every criminal proce take a tiny fragment of that larger story, this dure case, in nearly every First Amendment simple act of protest, and examine it not in the case, and throughollt the law, really- the un terms of the national political debate- prowar important is made important. This has its own or antiwar-but as a constitutional problem, political meaning, for it says that there is no to be analyzed, argued, and decided in the case too small, no person too insignificant, to terms establ ished by this branch of the law. be worthy of potential attention. Here and This means, as we shall soon see, that an es elsewhere the Court makes big law by attend sential part of the opinion will be a delineation ing to smaJi events. No one is excluded on of these terms, an account of the universe of principle. meaning established by the First Amendment When a dramatist invokes what is physi and tbe cases decided under it. ca lly or morally distant, we naturally ask what Like the drama, then, the opinion not he will make of it: what meaning will he claim only brings before us what is remote in time for the story of Iphigenia or the looting of and space but in doing so creates a world of Troy or the events at the Persian court? The imagination, simultaneously drawn from the answer will always lie in particularities of world we otherwise know and an alternative wri ting and performance. In the same way, to it. The idea in both cases is not to offer the when Mr. Cohen's story is brought into the audience an escape into fantasy, but to create theater of the courtroom, we ask what it will an imagined rea lity that can run against the be made to mean by the lawyers and by the "real world," both to test it and to be tested by Court, and this, too, is of necessity a highly it. In both forms, particularity is essential to particular matter, tied intimately to the facts the art; and in both forms, the created order is of the case. For, as every lawyer knows, we do at once final and tentative: final because it not and cannot know ahead of time the cluster reaches a conclusion, comes to an end; tenta of arguments on both sides by which the law tive because the rest of life continues, creating will work in a particular case, which the Court an ever-changing context that will challenge must in turn resolve, and which it will use and or confirm the imagined order in new and dif transform in its own opinion. ferent ways. This particularity requires a kind of atten tion , makes possible a kind of invention, dif Movement to Discovery by ferent from the kind of talk usual in political Dramatic Opposition or theoretical debate. What is happening in the Cohen case, from one perspective, is just Perhaps a more familiar feature of Greek another event in the long struggle over the tragedy is that it lives and works dramatically, 52 JOURNAL OF SUPREME COURT HISTORY by the interaction between different charac happen, about who these people are and ought ters speaking out of their respective situations to be. in different voices. This too was a real inven As the play often takes as its subject a fa tion, for the first forms of drama were purely miliar story from mythology or history, which choral performahces; at first one actor was is told in such a way as to reveal new possibil added to the chorus, then another, then, fi ities of meaning, so the hearing often begins nally, by Sophocles, the third. 12 with a set of preconceived ideas-in the par The opposition of character to character ties, judge, and lawyers alike-about the facts is so much the soul of what we think of as and their significance, about the law and its drama, then and now, that it is hard to appreci bearing upon them; these are tested and com ate the force and originality of the invention. plicated in argument and sometimes com Think, for example, of the opposition between pletely transformed. When the play and the Creon and Antigone over the relative author healing work well, they are both processes ity of the city's decrees and those of the time that carry us by the force of opposition from a less and unwritten laws that the young woman position defined by our pre-existing expecta invokes; or of the confrontation between tions into quite different and often surprising Orestes and the Furies at his trial for the mur terrain. This happens in Cohen itself: this is a der of Clytemnestra; or, in the play that bears case to the facts of which Jots of people, in her name, of the intense struggle between cluding judges and lawyers, would have Medea and Jason. Or, to shift nearer our own highly predictable responses, pro or con, and world, think of Shakespeare's Hamlel, which one of the functions of the opinion is to com can be seen as a set of antagonistic conversa plicate these responses, perhaps beyond rec tions between Hamlet and others-Gertrude ognition, by the discipline of the body of and Claudius and Polonius and Laertes and thought and law developed under the First Horatio-each defining somewhat differently Amendment. the meaning of the past they share and of con I shall not belabor this point of compari templated future action too. The question the son, which seems plain enough as it stands, play presents is, what kind of sense can be but wish to make a particular point about the made of a world defined by such contrasting way the law works in this respect. It is true possibilities of speech and meaning? that in Cohen, as usual in American law, the It is equally obvious that, with us at least, lawyers for the two sides create a drama of op the law works in a similar way: by the opposi position that the Court will in turn address. tion of character against character, plaintiff But notice that Cohen himself is not a partici against defendant, each representing a differ pant in this conversation. His original ent vision of the world-and of the law-and speech-the slogan on his jacket-is reported seeking to establish its own as the dominant by others, but he' himself has no opportunity to one. The central legal institution we call the say what it should be said to mean in the lan hearing works by a disciplined opposition that guage of the law. That is the task in the first is intended to lead, and sometimes does, to instance of the lawyers, then of the courts. deeper understanding, indeed, to the revela Unlike Orestes or Oedipus, Cohen is a real tion of central questions theretofore obscured flesh-and-blood person, with his own ways of by our ignorance, or by our habits of thought talking, his own vision of the meaning and and imagination. I] It is not simply that play perhaps the necessity of what he did, and none and trial work by opposition, but that the op of this is present in the legal argument, espe position leads the participants and the audi cialJ.y on appeal. ence to new discoveries, about what has hap The law thus provides a second language, pened and what it means, about what ought to into which the languages and experiences of HUMAN DIGNITY AND THE CLAIM OF MEANING 53

ordinary life must be translated. The people of porating this vulgarism within it, Justice the law will locate and define what happened Harlan perrorms, at the level of the text, just in the real world in these terms, placing what what he says the First Amendment requires of Cohen himself actually said and did in a larger society in places like the courthouse: the toler context, which will in turn do much to shape ation of what we normally exclude or sup the kind of meaning that can now be claimed press. for Cohen's words. The law is in this way a In thi s way, while protecting the speech cultural process, working on the raw material Justice Harlan di stances himself from it, de of life-the injury to the body or the psyche, fining himself and the Court as different from, the failed business, the broken m arriage, the indeed, opposed to, the values-the sense of vulgar words in the courthouse-to convert it self and other, the idea of public thinking and into something else, something of its own: the speaking-expressed by it. It is this di stance occasion for the assertion of a certain sort of that enables him credibly to say at one point meaning. It is a kind of translation. that the tol erance of "cacophony" required by One of the striking features of the opinion the First Amendment may be a sign of in Cohen, and one of its great merits, is that it strength , not weakness, in the society that is acknowledges this fact about itself: the differ capable of it. This is a message that he does ence between ordinary language and legal not merely articulate but perrorms or enacts language is not erased or elided, as it usually throughout the whole opinion, for he simulta is, but made inescapably prominent. In addi neously protects Cohen's speech and exem tion to the usual dramatic opposition between plifies ways of thinking and talking that are at the lawyers, there is thus another overt ten the other end of the spectrum. Do not imagine sion, between two registers of discourse and from thi s opinion that you might be well ad between the people who speak in these differ vised to use language like that on Mr. Cohen's ent ways: between Mr. Cohen, wearing his jacket in addressing the Supreme Court, or jacket with its blunt-spoken legend into the that to displ ay such a jacket in a courtroom municipal courthouse, and Justice Harlan, might be immune from sanction. speaking as he does in elaborate and sophisti It is important to notice in this First cated legal terms about that event. On one Amendment case that the kind of speech that side, we have the crude and simple phrase, a the opinion exemplifies and values in its own gesture of contempt and defiance that seems perrormance is not really "free speech," but to express the view that nothing else need be the opposite of that, highly regulated and con said, to claim that thi s is a wholly adequate re strained: by the principle of judicial authority, sponse to the issue of policy it addresses, in which requires serious attention to earlier deed the only proper response. On the other cases and to the tensions between them; by a side, we have a mind of great fastidiousness conception of excellence in legal thought, and care, defining, by the way it works which shapes the kind of attention Justice through the issues, a set of crucial cultural and Harlan gives to those cases; and by canons of social values: the values of learning, of bal civilized and rational discourse, including ance and comprehensiveness of mind, of grammar and syntax, which govern the forms human intelligence, of depth of understand of expression. It is, in fact, this very qual ity of ing. Nothing could seemingly be further from Harlan' s opinion that makes its protection of the mind exemplified in this elegant, com Cohen's s logan so significant and important: plex, civilized composition than the kind of it is protecting something very different from crude speech it protects. 14 And by creating in itself, and in doing so it defines the kind of hi s own voice a tone that respects ordinary toleration the First Amendment has at its cen canons of decency in expression, then incor- ter. Yet when it does so it recognizes, almost 54 JOURNAL OF SUPREME COURT HISTORY

The author argues that Justice John Marshall Harlan's opinion in Cohen simultaneously pro tected the draft protester's speech and exemplified ways of thinking and talking that were at the other end of the spectrum in terms of eloquence and decorum .

of necessity, that this other utterance has a expli cation, but otherwise inexpressible emo force and value which may be missing from tions as well," and goes on to add that the the opinion itself; indeed, it almost necessar Constitution should not be assumed to have i Iy suggests that there may be times when the little or no regard for this "emoti ve" function right response to a political situation is not which "may often be the more important ele more reason, not more civilization, but the ment of the overall message sought to be com kind of verbal gesture one cannot quite imag municated."15 When I hear this, I at least have ine Justice Harlan, as he defines himself here, the feeling that I am in the presence of hi ghly ever making. overformal speech, the workings of a mind For there are points in this opinion at that is at the moment constricted by its own which one might be less inclined to call commitments to a certain kind of thought. But Harlan's manner of speech "elegant" or "so this very fact has its dramatic and literary phisticated" than "stuffy" or "stilted"- as, for function, for it enacts for us what it might example, when he says that we should re mean to insist, as California wants to do, that member that human speech "conveys not only Cohen should be compelled to translate his ut ideas capable of relatively precise, detached terance into more formal and generally ac- HUMAN DIGNITY AND THE CLAIM OF MEANING 55 ceptable speech-this would make him sound up, a self-consciousness, an effort to imagine like me, Harlan is in effect saying, and it the whole world and oneself and others within would bleed what he says of all its life and it , to see one's story as a whole and among vigor. other stories. It is the full performance of a We can see now that the other impulse I gesture that is begun over and over in human mentioned, the bringing on stage of that experience, both in our own lives and on the which is unrecognized or alien or perhaps stage, but rarely taken to completion. taboo, is at work through the entire opinion. Harlan brings on this phrase, this moment, not Let me give two brief instances. In only to protect it, but to establish a dramatic Oedipus at Colonus, the blind and aged man tension with it, a tension that validates it as finds at last a home in the sanctuary of well as tolerates it. One is reminded of Shake Colonus on the edge of Attica. The townspeo speare's capacity to see the world from every ple in the chorus are afraid of him and wish to point of view, in this sense to humanize every drive him off; Creon, his brother in-law, monster. Even Caliban, the subhuman crea comes from Thebes to seize and bring him ture who tries to rape Miranda and destroy back to that city, to ensure that he will be bur Prospero, is given his moments of sympathy, ied there and thus confer on Thebes the bene and more than sympathy--of unique and fits which an oracle has promised to the place beautiful expression. that receives his body. Oedipus himself is filled with a sense of cost and loss, of his own status as an object of fear and taboo, but he Claiming Meaning for Experience also displays a remarkable serenity, an integ In addition to its way of imagining the rity of mind; and towards the end, in an argu distant and remote, and its way of working by ment with Creon, he surprisingly asserts his dramatic opposition, Greek tragedy has a third essential innocence. He looks back over his feature, harder to define than the others but no entire life and claims new meaning for it. He less important, not only for Athens but in its was, he says, the object of a divine decree consequences for the literary and dramatic from birth that he should do these unspeak imagination ever since. What I have in mind is able things-how, then, can it have been his a certain sort of speech in which a speaker fault? He did not know who it was he killed, looks back over his experience as a whole or who it was he was marrying; and when he and thus our experience too--seeking to find did kill he acted in self-defense. He has-and a meaning in it, to claim a meaning for it, and he knows it- violated the deepest of taboos such a meaning as will enable him or her to and is by this fact eternally marked; but he shape his or her future speech and conduct in a also sees that in another and deeper sense he is coherent and valuable way. innocent as well. The action of the play con Not all dramatic speech has this quality. firms this sense of his own deep innocence, in Much of it consists of simple response to two ways: first, in Theseus' expulsion of events, in the form of lamentation or the ex Creon and acceptance of Oedipus into the ter pression of joy or worry; some of it consists of ritory of Athens; then, in Oedipus' own apo denunciation, or manipulation, or planning, or theosis, his conversion by divine power on his the giving of orders-think of Creon speaking death into a kind of quasi-deity himself. to Antigone-or the pursuit of clarification, as Or consider the Ajax of 'Sophocles. The in Oedipus. All of these gestures can, of story here takes place during the Trojan War, course, be ways of giving meaning to experi just after the death of Achilles. The armor of ence, but they have not quite the quality I seek Achilles is given by the leaders, Agamemnon to define, which includes a kind of summing and Menelaus, not to Ajax, who is sure he de- 56 JOURNAL OF SUPREME COURT HISTORY

"Oh, Miserable am I" laments a blind Oedipus in this 1880 illustration. Like heroes of Greek tragedy, Supreme Court Justices struggle to claim that they can describe, explain, and justify their decisions in an appropriate way.

slaves of others, which will be horrible for serves this mark of honor, but to Odysseus, in themselves and a humiliation both to Ajax' what Ajax regards as an act of fraud . Filled parents, who are still alive, and to hi s own with fury and a sense of injury, Ajax sets forth memory. Ajax at first rejects her claim, but he at night to kill Odysseus and the two leaders, is in fact affected by what she says, and when the only response this man of war and honor he returns to the stage after a choral ode la can possibly imagine. Athena sees him do menting his decision, he speaks in a wholly this, and deludes him into thinking that a herd different way, not from inside his mi sery of of sheep and goats are the enemies he seeks; the moment but from outside, at an enormous he slaughters them, delighted at his revenge; distance, philosophical or religious in kind . but then he gradually returns to sanity, sur rounded by the corpses of these animals, a Strangely the long and countless laughingstock to the whole world, utterly hu drift of time miliated. The course for him is plain, and he Brings all things forth from dark faces it clearly and with characteristic cour ness into light, age: "It's a contemptible thing to want to live Then covers them once more. Noth forever ... Let a man nobly live or nobly ing so marvelous die." 16 The meaning of hi s situation is that he That man can say it surely will not should die and be done with it. be- Tecmessa, the woman with whom he Strong oath and iron intent come lives and by whom he has had his only son, crashing down. pleads with him not to end hi s life, for the mo My mood, which just before was ment he dies she and their son will become strong and rigid, HUMAN DIGNITY AND THE CLAIM OF MEANING 57

No dipped sword more so, now has ness. We Jive amidst cycling emergences and lost its edge- withdrawals, dominances and submissions, of My speech is womanish for this which this event is only one. His humiliation woman's sake; is thus stripped of social and moral signifi And pity touches me for my wife cance and made a fact, a fact of nature, like and child ... death itself. This speech is, therefore, an answer to a So, he say s, he will go to the shore of the sea central question the play presents, which is and purify himself, hiding hi s sword in the how one can possibly live in a world in which sand. life is so utterly subject to chance, even mali From now on this will be my rul e: cious destruction. The answer is ultimately a Give way matter of voice and character, of imagination To Heaven and bow before the sons and speech. Ajax Ii ves in a world of uncer of Atreus. tainty and destruction; but he can see that and They are our rulers, they mu st be say it, and in doing this can see himself, not as obeyed. a unique heroic ego, but as part of a set of pro 1 must give way, as all dread cesses larger than he; and all this enables him strengths give way, to accept his life, and its conditions. 17 In turn and deference. Winter's hard-packed snow There is enacted in this speech an im Cedes to the fruitful summer; stub pulse that is perhaps first made part of the born night Western inheritance here in the tragic drama At last removes, for day's white of Greece: the impulse to stop, to sum up life steeds to shine. as a whole and to tlY to make sense of it, to claim a meaning for it; to try to imagine the The dread blast of the gale slackens world and oneself within it in such a way as to and gives make meaningful action possible-whether Peace to the sounding sea; and that action is the kind of sui cide upon which Sleep, strong jailer, Ajax first resolves, and later, perhaps still Tn time yields up his captive. Sha ll under the destructive spell of Athena, com not 1 mits, or whether it is the kind of life in con Learn place and wisdom? nection with others that he, in this speech, for This is an extraordinary speech. It represents a moment, imagines. an enormous shi ft of mind and feeling, from a What is more, this kind of speech is, I self-centered despair to an acceptance of his think, essential to the deepest contribution of lot, which is in turn based at least in part on a tragic drama, which is, as Hegel said, to give recognition of the claims and experience of dignity to human life by recognizing and en others. Ajax can now see Tecmessa, not acting the possibility that the human mind merely as a possession, but as a person with the self or soul-can maintain its integrity whose experience he can sympathize. His vir even, or especially, at the moment of its disso tue has so far been to be without pity; now he lution. 18 It is such an act of character and can pity. What is more, he now sees his pres imagination that enables O~dipu s to over ent defeat not as a sin gle, unique, and humili come and transform what he has done; that ating event, but as part of the larger order and enables Prometheus, chained to the rock, to process of the world, in which all dread and maintain a moral and psychological superior powerful things give way in the end: winter, ity to the Zeus who tortures him; and th at en and night, and storms, and sleep, and wakeful- ables Ajax, for a moment at least, to accept 58 JOURNAL OF SUPREME COURT HISTORY and live with the humiliation thrust upon him that is associated with speech, but speech it by fate and the gods. it is in the human capac self. 19 Likewise, it does not involve a statute ity for speech of a certain kind that human directed at the special need for decorous dignity most d~eply resides: speech that in speech and conduct in the courthouse or its vokes what is distant and remote and brings it precincts, but one of general applicability. before the mind, where it can provide material This means that no special deference is due and a point of view from which the culture, any judgment of the legislature as to the and the self, can be criticized; speech that proper control of speech in the halls of a moves, as th e play and trial both do, by oppo courthouse, for no such judgment has been sition and contrast into new perception and made.2o And, despite the sexual vulgarity of understanding; and speech, like that of Ajax the central term employed, this is not an ob or Oedipus, that seeks to sum up experience scenity case, for the expression is in no way and claim a meaning for it. erotic)1 Furthermore, the phrase in question does not qual ify as the sort of expression the To return once more to Cohen, I want Court has termed "fighting words," unpro now to suggest that in writing his opinion for tected by the First Amendment, for it was not the Court, as, in a sense, in any judicial opin a direct personal insult. Nor is a prohibition of ion of any real quality, Justice Harlan is ex this phrase justified by the fact that it was pressing very much the same impulse, in a dif forced upon "unwilling or unsuspecting view ferent context, that we saw at work in Ajax ers," as a "captive audience"; to justify sup and Oedipus: the desire to sum things up, to pression on such grounds, the government tell again the story of the past, to imagine the must show that "substantial privacy interests world and its people, all in ways that will are being invaded in an essentially intolerable make possible coherent speech, intelligible manner," which is not the case here.22 and appropriate action. For part of the duty of the Court is to say how this case should be Harlan thus runs through nearly the entire talked about in the language the Court has body of potentially relevant First Amendment made-in this instance, the language made in law, only to put it aside on the grounds that it cases decided under the First Amendment. To does not bear on the case before him. That is , do this, it must attend to the entire authorita he simultaneously admits the su rface rele tive past created by the Court and do so with vance of the arguments he states and denies the duty of resolving so far as it can the ten their real force in this case. He is here address sions it discovers within it, with the aim of as ing and resolving the sort of argumentative serting, for the moment, that justice has been opposition between lawyers 1 referred to ear done. It must use this language to make a lier, and it is important to say-although it claim both to coherent speech and to appropri would take too long for me to show that it is ate action. so-that none of the points he dismisses is How does Justice Harlan, speaking for without some merit, none of his own positions the Court in the Cohen case, attempt to do beyond argument. He recognizes what can be th ese things? Here is a brief outline of what said the other way, but is, at the same time, might be called the argumentative structure of exercising a power-the power of a lan his opinion. guage-shaper-to determine its scope and He begins a bit like a modernist painter basis and reach. sculpting out negative space by telling what, All this is, for him, a kind of brush-clear in his words, this case "does not present" (em ing that opens up what he regards as the real phasis in original). First, he says this is a case issue in the case, which is whether California in which the state seeks to punish, not conduct may "excise, as 'offensive conduct,' one par- HUMAN DIGNITY AND THE CLAIM OF MEANING S9 ticular scurrilous epithet from the public dis simply no principled way to distinguish be course." It cannot do so, he first says, on the tween this particular term and others. This theory advanced by the court below, namely view rests on an important understanding of that it is " inherently likely to cause a violent the nature of language, namely, that words reaction," for that is simply not the case23 cannot be sorted like peas or bolts, according However, there is a second theory supporting to size or weight. They have a life that is more the conviction, which in hi s view commands mysterious and multidimensional, more con more respect and attention: namely, that the text-dependent, than such a view would states may suppress this "unseemly expletive" allow. in an effort to "maintain what they regard as a Second- and central to the ultimate suitable level of discourse within the body meaning of the case-Harlan says that to politic."24 force a translation of Cohen's utterance into He begins his examination of this ques more socially presentable speech would strip tion at a highly general level, reimagining as it it of much of its signifIcance. For human were the first premises of the legal universe. speech, he says in a passage I quoted earlier, First, he says, we must make this judgment "conveys not only ideas capable of relatively with an understanding of the purpose of the precise, detached explication, but otherwise constitutional right of free expression: "It is inexpressible emotions as well"; and we can designed and intended to remove governmen not believe that the Constitution has "little or tal restraints from the arena of public discus no regard" for this "emotive function, which sion, putting the decision as to what views practically speaking, may often be the more shall be voiced largely in the hands of each of important element of the overall message us, in the hope that such freedom will ulti sought to be communicated ."29 And even if mately produce a more capable citizenry and this is not true, he thinks that it would be too more perfect polity, and in the belief that no facile to assume that one "can forbid particu other approach would comport with the prem lar words without also mnning a substantial ise of individual dignity and choice upon risk of suppressing ideas in the process."30 which our system rests."25 This is a lovely and economical statement, drawn from a more ex Note the tension here. First Harlan says tended one, the famous dissent of Justice that speech does more than express "ideas," Brandeis in Whitney v. California,26 to which and that what he calls its emotional content is Harlan makes reference. The result of this cmcial to its value; then he returns to the topic freedom, Harlan goes on to say, "may often of "ideas," saying that we cannot be confident appear to be verbal tumult, discord , and even that the suppression of vulgarity would not in offensive utterance."27 But these are side ef volve the suppression of "ideas," as though fects of what a broader debate enables us to ideas are the important things after all. He achieve, and "that the air may at times seem to thus reaffirms the distinction between ideas be filled with verbal cacophony is, in this and feelings he has just criticized; but the ear sense, not a sign of weakness, but of lier criticism-insisting on the value of emo strength."28 tive expression---continues to work, thus Then, in turning to the particulars of this transforming his point from its rather crude case, Harlan makes two central points. First statement about "ideas" to a .crucial recogni he says that the result contended for by the tion that our language about t'anguage is itself prosecution would confer "inherently bound inherently limited and constricting. What less" powers on the state. For if this word can unites his two perceptions, despite the ten be excised from public speech, where is the sions between them, is his sense that we can power to stop? What he means is that there is not be confident that we can know how the 60 JOURNAL OF SUPREME COURT HISTORY meaning of language works, certainly not so brought to the reading and criticism of any ju confident that we can inflict surgery on an ut dicial opinion. terance without running the risk of destroying its life. 1) To what extent does this This is the most important part of the opinion bring into the circle of public meaning of the Court's opinion: a sensitivity awareness persons or events or other to the fact that meaning and form are insepa material that are normally repressed, rable. It is a familiar truth of literary criticism ignored, or overlooked? Does it do that the meaning of a poem or a play or a this with the kind of particularity that novel, or any other work of art, lies not in any will bring to the surface something restatement of it into other terms-in any new and problematic, and thus be message or idea-but in its performance, in come the occasion for growth and the life and experience it creates for its audi change, both in our perceptions of ence or viewer. In adopting and performing the world and in the law? this position in the law, Harlan takes an enor 2) Does it work in an explicit mously significant step away from the view way by dramatic opposition and de that the First Amendment should be held to velopment (as opposed, for example, protect only speech that contributes to the to the deductive application of the marketplace of "ideas," and especially of po ory)? In particular, how far does the litical ideas. Of course Cohen's own speech is Court recognize that its own lan deeply political; but the way the Court imag guage of description, argument, and ines and resolves his case makes the amend conclusion has, as it were, a shadow ment reach much further, to the protection of version opposed to it, represented by art and perhaps-as one might wish to do in the losing side? For the Court does the case of Greek drama-to a dissolution of its job, not just by reasoning to a re the simple distinction between political and sult, but by recognizing the force and nonpolitical, as the opinion dissolves the dis reality of other views, other ways of tinction between ideas and feelings. imagining and speaking. And does There is thus this additional connection the Court find a way to create signifi between the opinion in Cohen v. California cant dramatic tensions within its own and the Greek dramas with which we began, opinion, as Harlan does with respect that Cohen provides a language and an author to what I have called the two regis ity for the protection of these plays and others ters of discourse reflected here? like them. It is not only itself a drama; it is a 3) Does the Court find a way to way of thinking about drama. sum up the Jaw and claim a meaning for it, and, if so, with what kind and In comparing the form of classic Greek degree of coherence? In a First tragedy and that of the Supreme Court opin Amendment case, for example, we ion, my hope has been to begin to establish a can ask whether the Court has a somewhat clearer sense of the ways in which workable view of the aims and prin they work as institutions for the making of ciples of that text, which in turn re collective meaning. One idea is that increased quires a view of the nature of human understanding of these matters might lead to speech, and of language itself; deeper criticism, and perhaps even to better whether it has a way of imagining performance of the judicial opinion. The three the Constitution as a whole, and the points of comparison made here, for example, roles of the various actors within it can be seen to generate questions that can be legislatures, juries, other courts, it- HUMAN DIGNITY AND THE CLAIM OF MEANING 61

self; whether it offers, in short, a way experience, our story-like that of Agamem of imagining this case and the law non-is necessarily incomplete. In this way it and the larger society that will enable is the function of art, and law too, to challenge it to reach a result which it can claim life at its imaginative center. to be just, not only in some technical To test out the depth and pervasiveness of way, but truly just. And in all three the human desire to discover a way to claim dimensions of meaning we shall be meaning for one's experience, imagine for the interested not only in the Court's ex moment that we could not claim meaning for plicit statements or arguments, but, our experience; that all our speech was reduc as I have tried to suggest with respect ible-as, indeed, certain strains of thought in to Harlan's opinion in Cohen v. Cali our own world would reduce it-to something fornia, in the meaning of the perfor called information. Under these conditions, mance enacted in the opinion itself. instead of what we call meaningful speech, we would send signals that communicated * * * * * particular desires or aversions, expressed a willingness or a refusal to engage in a course 1 think that the desire for meaning of the of conduct, and so on. We could make offers, kind that is reflected in the speeches of pay bills, get the car fixed, go to the hair Oedipus and Ajax is the deepest impulse from dresser, buy a suit, order a dinner, arrange for which literature comes, and that it lies at the sexual gratification, watch or play baseball, heart of our hopes when we approach a judi but we could not say what any of these things cial opinion, especially a Supreme Court means to us. We could not justify our deci opinion. But the impulse is even more general sions, or explain our preferences, we could than that, for we ourselves participate in it in only act on them; we could not engage in the our own lives and imaginations. Every human kind of conversation by which we discover being shares the desire to find a way of de who we are, what we desire, or should desire, scribing and claiming meaning for his or her what kind of life we live and want to live. Life experience-at the most general level, a way could go on as a series of exchanges, and ex of imagining the world, and herself (or him pression as a set of signals that make the ex self) and others within it, that will make possi changes possible. But such an existence ble coherent speech and valuable action, even would in the most important sense not be in the face of the deep uncertainties and injus human, for it would omit the most deeply tices life necessarily presents) 1 The process is human form of speech, which is the effort to never complete, for the future lines of the define our experience and claim a meaning for story we are telling are necessarily unknown it. Description, explanation, justification: to us; but we know that when they come they these are for us essential activities of mind will certainly, like the murder of Agamemnon and language. or the madness of Ajax, give new meaning to As we have seen, the form we call the what is past. As we do this, we work against opinion of the Supreme Court-like the two deep fears: that the story we shall then be drama-is a cultural institution that works to able to tell will have a meaning that is intoler teach the public: in part by bringing into the able to us-or no meaning at all. zone of collective attention that which is dis To discover shape and coherence and sig tant or remote, unseen and pmticular; in part nificance in a work of art-or law-presents by the way it works through dramatic opposi us with an acute form of this problem, for it si tion, with character poised against character, multaneously stimulates the desire for mean voice against voice; in part by the way it seeks ing of the kind I mean and reminds us that our to give meaning to the events thus examined, 62 JOURNAL OF SUPREME COURT HISTORY

locating them in a larger contex t and a larger mote from that one are also brought before the mind of story, running back in time and including, po the audience. ·Of co urse, there were other forms th at did 'omething like tenti all y, alJ the elements of its institutional this, espec ially the Odyssey, one of th e foundational tex ts memory. It does this in a language fashioned of this cullUre, which in vi ted the audience to imagine for the purpose, : in which th e Court-like both the wo rld of Odysseus and th en, through hi s Ajax or Oedipus-daims, or struggles to speeches about his travels, a world beyond that. But the claim, that it can describe, explain , and justify drama does thi s in il much more immed iate way , invi tin g its decision in an appropriate way, one that the aud ience to believe that what they are seeing and hearing in re al time, on this spring morning. are the will make possible coherent speech and eve nt s of long ago or far away. The Odyssey to ld of re meaningful action in th e future. And like the mote events: the drama acts them Oul. drama it has the potential, at least-in my 5For an acco unt of th e ways in which suc h characters can view, realized in cases like Cohen and many noneth eless be seen to se rve th e needs of a male-domi others, though not all - to enhance our sense nat ed culture, see Hele ne Foley. Female Acts in Gr eek of the dignity of human life and experience, in Tragedy (200 1). On the place of women in the th eater, see Literature in the Greek and Roman Worlds, O. resistance to those forces, in this and every Taplin, ed ., 127- 132 (2000). age, that would trivialize these things. 6That it is through the judicial opinion that the Court does ] n the judicial opin ion and the drama the se thi ngs is too obvious, I thi nk, for argumenl. Imagine, alike, we are thus exposed to imaginations for a moment, that it had been forbidden to write opi ni ons, that, at their best, confront the deep uncertain th at its judgments had to stand on their own, undefined and uninterpreted. This would destroy the possibi li ty of law as ties of the world, of language and the mind, we know il. Of co urse, a case matters in pa rt becau se of its but nonetheless create ord ers, in language, ou tcome, especia lly to th e parties: but to the res t of US thi s th at run against those uncertainties. But in outcome malters largely because of what it is made to each-the speech of Ajax, the play that bears mean , in the first insta nce by the Court th at decides it, th en hi s name, the opinion in Cohen-the order is by later Courts and comm entators. The case does not have tentative, temporary, soon to be replaced by a meaning automatically, that is, but is given meaning through th e opin ion that describe s, explain s, and justi fies others, or redefined as the context th at gives it the outco me. As a teache r once sai d to a writing class, meaning changes. ]n this way, both forms call '"The fact s do not speak for themselves. You have to speak upon us, as readers, to engage in our own ver for them." So too it is with the results reac hed by the Su sions of this fundamental activity of imagin a preme Co urt. It is the opinion that gives significance. For ti on an d language: Become a maker of order elaboration of ulis poi nt, see " What 's an Opinion For?" in my From Expectation to Experience: Essays on Law yourself, they tell us, become one who claims and Legal Education. chapter 4 (2000). meaning for our shared experience, or the 7403 U.S. 15 ( 197 1). One of the peculiarities of a First possibility will be lost. Amendment opinion is th at it is speech about speech, which mean s that the Court is always exemplifying' its own ve rsion of th e activity it is protecting (or not protect ing). This in lorn holds out the possibi lity of a tensio n, ENDNOTES productive or un produc ti ve, between the speec h of the citizen in ques tion and that of the Court . For the Court IThis paper was originally de livered as a lecture to the may talk aboul speech one way, yE t imply---or see m to Supreme Court Historica l Soc iety. 13 December 2000. imply-a very different sense of it, of its pos ibi lities and 2For a brief account, see the art icles on choreg ia and dangers, in its own performa nce. That will in fa ct be true ' Greek tragedy in The Oxford Classical Dictionary, 3rd hel·e . ed., S. Hornblower and A . Spawforth, 1538-1 542 SId. at 16. ( 1996). 9/d. at 15. Noti CE, too, as I said ea rl ier, th at the imagin ed ,'The way thi s works practica lly is that the audience is world in wh ich this story is placed reac hes far in space first as ked to imagine th at the space before it. the theater, and time al ike. In space, it reaches out to Los An geles is of a different time and pl ace. in thi s case Mycenae; and the county jail. to bring what happens th ere into the then , by speech and song. even ts in places and times re- ci rcle of public att en ti on that the Supreme Court defines. HUMAN DIGNITY AND THE CLAIM OF MEANING 63

And it reilches back in time, too, as we shall soon see, A thi rd reading is suggested by BemaI'd Knox, nam ely when the Court tries to explain its decision. as it mu st, in that the first part of the speech. quoted above. i s act ually a the terms and understandings estabJi shed by eilrlier deci so liloquy in which Ajax truly articulates his vision of the sions. Everything the Court has eve r done is of potential world; but thi s is not a vi sion that he accepts, quite the re relevan~e; that inheritance must be exam ined, th ough t verse of that. The language about reveren~ing the abo ut, and reorga ni zed into a system of thought that wi ll Atreidae, for exa mpl e. shows how impossible a~quie s gi ve appropriate and tol erabl e mea ning to the eve nts be cence woul cl be . The speec h in thi s way co nfirms hi s re fore it. solve to leave this impossib le li fe . See Bernard Knox. IU392 U.S. 5 J 4 (1968). Word and Action: Essays on the Ancient Theater " I ~ay "might ha ve" be~ause . in the event, the Court 134-141 ( 1979). For other views, see C. M . Bowra, backed away from the poss ibil iti e" opened up in Powell. Sophoclean Tragedy 39-46 (1944) and R. P. Nonetheless, th at ~ a se had rea l for~e in foc usi ng thought Winnington-Ingram, Sophocles : An Interpretation, on the problem of~ rimin a l respon sibi lity, ancl doing so in 46-55 ( 1980). a highly co nstructive way . These are all plau si bl e i nterpretations. none of them "See Aristotle, Poetics. IV: 10- 17 wi thout clifficulty. pre 'enling choices for the director and 11See Robert P. Burns. A Theory of the Trial ( 1999): actor. For my presen t purposes it is not necessary to try to Milner Ball. " The Play's the Thing: An Un sc ientific Re reso l ve the tensions among them, for they il ll involve the tl e~ t io n on Court s Under the Rubric of Thea ter." 28 SIIIII speaker summarizing a way of imagining th e whole worl d lord Lmv Review 8 1 (1975). ancl himse lf within it, whether this is done direc tl y, or '-I have spoken as though Cohen's gesture were simply a wi th an intention to deceivc, or as a way of discovering cru de vu lgarity. and the question were whether or not to how imposs ible for him the truth he is discovering ac tu tolerate it. T his is. in a sense, of course true, but there are al ly is. BUI I will say, for what it is wort h, that the idea also r espec t ~ in which his ulterilllce was in its own way that this speech is straight decept ion, though shared by hi ghly mannerecl. In a footnote, Ju stice Harlall explains many. see ms to me si mply wrong. that Cohen wen t into a courtroom where a trial was pro 18For an elaboration, see Michel le Gellrich. Tragedy and ~ee cl ing and , before he dicl so. took off hi, jacket and Theory: The Problem of Conflict since A ristotle fol cl ed it up SO thilt the slogan was not visible. Whatever ( 1988). his feelings may have been, from an objective point of 19This is not a se lf-evide ntly obvious proposition , for one view th is wa, an ac t of respec t for the court room and the might ea sily think the Constitution cou ld clraw a line be judi~ial process. A policeman present sugges ted th at the tween speec h Sil Y on a stree t corn er, or in a newspilper, cou rt hold him in ~on tempt, but the juclge se nsibly re and speech that takes the forms of sloga ns emblazoned on rused. 403 U.S. 15. 1911.3 (197 1). a jacket and dispJayed in il courthouse. Bu t that is actu " Id. at 26. al ly part of Harlan's poi nt, for in those cases the state iflAIl quotiltions from Ajax are from the translation by would be punishing the nWl1ller of speec h, not its con tent Joh n M oore, in Sop hocles, v. II, Da vid Grene. ed . or substa nce. which, if defined as a communication that ( 1957). opposes participation in the Vietnam War or th e military 17T his is, at least, what it looks like when the speec h is draft, is immune from suppress ion. The quest ion, th en. is give n, bu t shortly afterwarcls Ajax retires to the sea coast whether thi s is an approp (iate time, place, or manne r reg not to bury his sword, but to fall upon it. as a su icide. Js ulation. the s pee~ h qllote cl above. th en, all cl e~e pti o n , mea nt per ~{) Wh a t is more, there is no n oti~e in this statute that the haps to pl acate for the moment Te~me ss a and the choru s courthouse is il spec ial place , governed by s p e~ i il l rul es. of sailors from Salamis, his cou ntrymen? So so me take it, " No fa ir reading of tile ph mse, 'offens ive conduc t,' can but that would be odd in a person as utterly direc t il nd be said sufficie ntly to inform the ordinary person that dis forthright as Ajax is throughout. Yet how i. one. then. to tinct ions between certain locat ions are thereby crea ted." ex pl ain the suicide? One possibi lity, and in my view a 403 U.S. at 19. strong one, is that the su i~ide is the continuing work of 21 He puts this point ilS a question of fac t: " It cannot be Athena. (Soon a messenger will report the words of plausibly main tain ed that this vulgar allusion to the Se Calcha. the see r, that if Ajax can be kept safe wi thin his lective Serv ice System wou ld co njure up such psychic tent ror this one day . Athena will ha ras s him no more stimulation in anyone likely to be confronted with Co [lines 758-75<)) .) On thi s view, the speech is sincerely hen's cruclely defaced j acket." 1£1. ,at 20. meant when given; its intention is und one by the force of liThe phrase on Cohen's j_cket is not compilrable to " the Athena's curse. But thi s would reclu ce Ajax's 'uicicl e by rau cous emissio ns of ou nd tru cks" out side one's res i maki ng it in a se nse involuntary. And who cou ld imagine dence. for "those in the Los A nge les courthouse could him ac tu al ly su bmitting to Menel~u s and Agamemnon'! avoid further bombardment of th eir sensi bi li ties by sim- 64 JOURNAL OF SUPREME COURT HISTORY

ply averting their eyes." Id. at 2 1. Harl an concl udes that substan ti al numbers of citi zens are standing ready to this is no basis for suppression, especiall y where there is strike out physically at whoever may assault their sensi no evidence that "persons powerl ess to avoid appellant 's bilities" by such "execrati ons." There may be some peo cond uct did in fact object to it" (id. at 22) and where th e pl e " with such lawless and violent proclivit ies." but that legislature has not focused attention on the issues pre does not constitute a sufficient basis for the regulatio n of sented by the capti ve auditor. but " indiscriminately speech. To hold that it did would amount to th e "self- de sweeps within its prohibitions a ll 'offensive conduct' that feating proposition" th at to avoid ce nsorship by a " hypo 'disturbs any neighborhood or person'" (id). Here theti cal coterie of the violent and law less" the state may Harl an does find a way to g ive force to objections tha t impose that censorship itself. 403 U.S. at 23 . mi ght have been made to the statute 0 11 its face, but he 241d. does so not in an abstract way but in the context defined 2sld. at 24. by th e particulars of this case. T he statute may th us be 26274 U.S. 357, 372 (1927). valid in other cases, but not as applied to thi s conduct in 271d. at 24-25. th is case-at least not with out a showing of a legisl ati ve 28 /d. at 25. judgme nt made on the issues presented here. 291d. at 26. 23 M at 22-23. He makes this po int- in the first instance. )Old. at least-as a questi on of fac t. and finds th e government's JIFor a fu ll er expli cati on of this theme. see my recelll case wanting. "We have been shown no evidence that book. The Edge of Meaning (200J). The Judicial Bookshelf!

D. GRIER STEPHENSON, JR.

Almost anyone who can read would describe the Supreme Court of the United States as a legal body-an institution that says what the law is in the context of deciding cases. May the Court also be fairly described as a political institution? Even to pose the question rai ses eye brows, because Americans commonly use the word "political" to refer to partisan politics-that persistent struggle between organized groups called political parties to control public offices, public resources, and the nation's destiny. In this sense of the word, the federal courts are ex pected today to be "above politics," meaning that judges are supposed to refrain from publicly taking sides in elections, from otherwise jumping into the arena of electoral combat,2 or from deciding cases based on the popularity of the litigants.3 While democratic theory anticipates that elected officials will answer to the people, the ru Ie of law envisions something different: an abiding and even-handed application by the judiciary of the Constitution and statutes shaped by the people and their representatives. In a different sense of the word, however, Constitution, some critics opposed the new Americans should not be uncomfortable with government because of the political power the a Supreme Court that is "politicaL" As it re Court would possess. Assuming judicial re solves conflicts between litigants who dis view, Robert Yates claimed that Supreme agree over the correct meaning of a clause in Court judges would "enlarge the exercise of the Constitution or a provision in an act of their powers," to "effect ... an entire subver Congress, the Court unavoidably affects the sion of the legislative, exec.utive and judicial allocation of power. In this way, the Court has powers of the individual states," and "to been political practically from the beginning. mould the government, into almost any shape The Court is both "temple and forum."4 In they please."5 Chisholm v. Georgia's6 holding deed, in the debates over ratification of the in 1793 that states could be made party defen- 66 JOURNAL OF SUPREME COURT HISTORY dants in federal courts seemed to confirm Yates's suspicions, especially since it flew in the face of assurances to the contrary given during the ratification debates. Yet Chief Jus tice John Marshall's opinion in Marbury v. Madison7 at first glance appeared to be a self-effacing refutation of Yates's warnings, because the Court shunned a power over pub lic officials that Congress had proffered in the judiciary Act of 1789.8 However, the theoreti cal underpinnings of Marbury soon suggested otherwise, pointing to an influential role for the Court. Thomas Jefferson realized as much when the resignation of Justice Alfred Moore gave the third president his first opportunity to name someone to the Supreme Court. "The importance of filling this vacancy with a Re In 1830, Senator Robert Y. Hayne of South Carolina publican and a man of sufficient talents to be declared: "It is not my desire to excite prejudice useful, is obvious," advised Treasury secre against the Supreme Court. I object only to the tary Albert Gallatin in early 1804.9 assumption of political power by the Supreme Court." The nature of the Court's political role has The Court's political dimension became been the subject of debate in many recent books. too plain to overlook. "It is not my desire to excite prejudice against the Supreme Court:' South Carolinian Robert Hayne declared on Those rulings in turn may stimulate corrective the Senate floor in 1830. "I object only to the or complementary actions by both Congress assumption of political power by the Supreme and other parts of the political system. Sec Court. ... "10 This truth that so troubled ond, decisions clarify the boundaries of politi Hayne defined the Court's champions and cal authority, focu sing less on what may be critics. 'There are two p31ties in the United done than on who may do it or how it may be States, most decidedly opposed to each other, done. The Steel Seizure Case l 2 of 1952, after as to the rights, powers, and province of the all, turned not on whether government could Judiciary," Niles' Weekly Register had al cope with labor disruptions but on whether ready explained. "One party claims almost in President Harry Truman had exceeded his au fallibility for the judges, and would hedge thority and intruded into Congress's law-mak them round about in such a manner that they ing domain. In addition, the Legislative Veto cannot be reached by popular opinion at all, Case l:l of 1983 did not question government' s and ... the other would subject them to the authority to deport a particular individual, but vacillations of popular prejudice and seem challenged the method by which Congress de ingly require it of them to define and adminis creed deportation. Third, as has happened at ter the law, and interpret the constitution, ac least twelve times since 1800, the Court itself cording to the real or apparent expediency of may become an issue in presidential elections things." 11 because of unpopular rulings. Campaigns in The nature of the COUIt's political role in the last quarter century would have surely the intervening years has manifested itself in been altogether different without the Supreme at least four respects. First, its decisions shape Court's 1973 abortion decision,14 for in public policy by deciding what government stance. Finally, the Justices may directly national, state, or local-mayor may not do. touch the electoral process itself, as seen not THE JUDICIAL BOOKSHELF 67 only in the extraordinary circumstances of takes issue with virtually every prominent Su Bush v. Gore l 5 but routinely in cases on vot preme Court scholar of the past 65 years, ing rights, legislative districting, and cam including himself. 22 "[T]he transformative paign contributions. Because they partly dic status accorded to constitutional develop tate the ground rules of politics, rulings that ments that took place in the New Deal pe pol ice the electoral process affect the contest riod-the monolithic description of a 'consti for power in the most fundamental sense. Re tutional revolution' centering around the cent literature illustrates some of the richly Court-packing crisis-needs to be aban textured contours of the Court's political di doned." 23 The effect of making the New Deal mensions. "the epicenter of early twentieth-century con It may be difficult to think about the Su stitutional change [has] result[edJ in the tele preme Court in a political context without scoping and distorting of developments in thinking about the New Deal. The New Deal some doctrinal areas and the ignoring of de not only transformed public policy, the execu velopments in others . ... The New Deal needs tive and legislative branches, and public ex to be cabined in its own time." 24 A second and pectations about the role of government at all related objective is a demonstration that the levels, but also redefined the political party "durability" of this conviction "has been a system for at least a quarter century. And it function of the shared starting premises of its changed the Supreme Court. The Court ini narrators rather than the historical accuracy of tiall y resisted much of President Franklin its conclusions."25 Roosevelt's reform legislation and incurred His conclusion with respect to the second the President's wrath. After the election of objective is that the New Deal assumed "the 1936- which yielded, as one newspaper said, status of a defining moment" because it "coin "a roar in which cheers for the Supreme Court cided with the period when a behavioralist were drowned out"1 6 -the Bench became the theory of law, judging, and constitutional target of the most audacious attack any presi interpretation first became orthodoxy in dent had ever launched against the judiciary. American jurisprudence."26 According to be Though it failed of enactment, the Court havioralist theory, judges, like presidents and packing plan was like a political tsunami, up legislators, are political actors who make de ending the COUIt and constitutional law. cis ions based on ends they want to achieve. Within a short period of time, the Court not The ideal of rule of law is thus more fiction only accepted what had hitherto been unac than fact, in that the Constitution and statutes ceptable and thereby discarded a half-century have little meaning apart from the interpreta or more of jurisprudence, but shOitly reori tion grafted onto them by judges. The New ented itself toward a new-found solicitude for Deal seemingly validated this theory because nonproprietarian civil liberties and civil it witnessed "a defiant cl aim by a popular rights. According to the University of Vir president that the Supreme Court was nothing ginia's G. Edward White in The Constitution but a group of nine old men" and a changed and the New Deal, 17 this standard account of construction of the Constitution that " legiti the effects of the "switch in time that saved mated the welfare state."27 This view of hi s nine"1 8 is more "tale" 19 than truth. tory has had magnetic and continuing attrac Claiming charmingly and di sarmingly at tion because of a normative element, too: the outset only to "complicate"20 the convic history is employed "as a weapon for progres tion that the New Deal was the central event in sive change. "28 The theory refuses to take se twentieth-century American constitutional riously the older and alternative perception of development-a sort of judicial "High the Constitution as embodying fi xed princi Noon"2 1-White actually aims higher. He ples and of judges as guardians of those prin- 68 JOURNAL OF SUPREME COURT HISTORY

In G. Edward White's new book, The Constitution and the New Deal, the author seeks to diminish the notion that the New Deal period and the "monolithic description of a 'constitutional revolution' centering around the Court-packing crisis" were the epicenter of early twentieth-century constitutional change.

ciples. It is also responsible for the New gence of free speech as a value worthy of judi Deal-inspired practice of the "canonization cial protection and its link to bifurcated, as and demonization of judges"29 opposed to guardian, review. It is pursuit of the first objective that con The distinction between two kinds of ju sumes most of the volume. White has no quar dicial review figures prominently in the book. rel with viewing the New Deal as "America's Guardian review refers to the older approach first twentieth-century effort to respond defin in which Justices applied "essentialist"- that itively to some ... long-standing crises in so is, agreed-upon and widely taught--constitu cial relations. politics, economics. and intel tiona I values and engaged in "boundary prick lectual inquiry that stretched from at least the ing,"3 1 placing a statute on one side of the line 1880s through the 1930s."30 Rather. his quar of acceptability or the other. Differences rel is with the standard account, which he be among Justices in outcomes resulted not from l ieves exaggerates the impact of the New Deal disagreement over values but in the bound on the Court and constitutional interpretation. ary-pricking process. Bifurcated review. as He seeks to demonstrate that exaggeration by explained by behavioralist theory. results in exploring developments on three fronts: exec judicial deference to legislators in most cir utive discretion in foreign relations, the emer cumstances, with heightened scrutiny re gence of government by agencies and the served for policies that restrict certain pre creation of administrative law. and the emer- ferred civil liberties and civil rights .32 THE JUDICIAL BOOKSHELF 69

Each of the three fronts is significant, be is widely portrayed in the literature as the in cause the conventional account that White troduction of bifurcated review. In this seeks to discredit actually credits the New otherwise unimportant case, which upheld a Deal and the Court-packing plan with the congressional ban on interstate shipment of changes that occurred. Rather than bursting "filled milk,"36 Justice Harlan Fiske Stone forth in the I 930s, however, constitutional de wrote, "[R]egulatory legislation affecting or velopment driven by a modernity-inspired dinary commercial transaction.s is not to be consciousness33 had been underway for some pronounced unconstitutional unless in the time. The traditional account thus inaccu I ight of the facts made known or generally as rately compresses the changes (the effects) sumed it is of such a character as to preclude that occurred into a much briefer period and the assumption that it rests upon some ratio attributes them to the New Deal (the cause). nal basis within the knowledge and experi With respect to the first front, for example, ence of the legislators."37 To this statement "by the 1920s ... the constitutional jurispru was attached footnote number four, the three dence of foreign relations was no longer a re paragraphs of which contained three corre flection of the essential ist conceptions of con sponding ideas: that heightened scrutiny, not stitutional powers and limitations that had the general presumption of constitutionality, governed nineteenth-century foreign and do would nonetheless apply (I) where a statute mestic cases." By then, "jurisprudential stood counter to a "specific prOhibition of the space" existed for Justice George "Suther Constitution, such as those of the first ten land's extraconstitutional theory of national amendments . . . "; (2) where a statute re foreign relations power . . . to become en stricted "those political processes which can trenched. The result was the transformation of ordinarily be expected to bring about repeal of twentieth-century constitutional foreign rela undesirable legislation ... "; and (3) where a tions jurisprudence."J4 statute was directed at "particular religious ... With respect to the third front, bifurcated or national ... or racial minorities .... "38 review did not fully take on its familiar shape Most of the cases Stone cited within the until after World War II. Moreover, White footnote, however, were free speech cases maintains, it was not the product of the New dating from the 1920s and 1930s that related Deal and the Court-packing plan, but the out to the first and second paragraphs of the foot growth of earlier decisions on free speech note but that had nothing to do with the New where heightened scrutiny had taken hold Deal or the Court-packing plan (or, for that and a result, one should add, of the arrival matter, with the [hird paragraph of the foot after 1936 of new faces on the Bench for note, which called for special protection for whom bifurcated review had particular ap "discrete and insular minorities"). Moreover, peal. First, bifurcated review coped with the White argues, the statement of deferential re counter-majoritarian difficulty (the awkward view toward all commercial regulations was ness of unelected judges' invalidating laws hardly a widely shared assumption in 1938 enacted by the people's elected representa but "remained a controversial one."39 This tives) by deferring broadly to legislators on may partially explain why this part of Stone's economic matters (a posture likely to coincide opinion failed to command a majority of the in any event with the disposition of Roose full Court. Justices Cardozo and Reed did not velt-appointed Justices). Second, it reserved participate in the case at all; Justice Black ex judicial power for defense of (politically pro pressly declined to join the section of the gressive) values deemed essential to the main opinion containing the statement on deferen tenance of a democratic political system. tial review and footnote four; Justice Butler United States v. Carotene Products Co.35 only concun'ed in the result; and Justice 70 JOURNAL OF SUPREME COURT HISTORY

McReynolds dissented. That left only three White's critique, it will not be ignored. He has (Chief Justice Hughes and Justices Brandeis made a major contribution to intellectual, as and Roberts) who joined the opinion in its en well as judicial, history. The book is a com tirety. Four votes comprise a majority of pelling reminder that perception of the past is seven, but not of nine.40 Only one of Stone's partly a function of starting assumptions, that points---enhanced review where legislation accounts of events, when repeated again and "affected a textually grounded, incorporated again, have a way of losing sight of data that provision of the Constitution-was a common may not fit those assumptions, and that, in part of the discourse of constitutional juris constitutional history as in the natural sci prudence in 1938."41 Thus, the timing of the ences, orthodoxies may seem less certain but Carolene Products pronouncement---coming may also be understood more clearly when as it did in the year after the Court-packing subjected to reexamination. plan-is, for White, insignificant. Reexamination is the theme of Brown v. Nonetheless, there is some risk in Board of Education by Brown University's White's sweeping and contrarian venture. James T. Patterson 44 The book is the first in a First, in attempting to play up important de new series entitled "Pivotal Moments in velopments before and after the New Deal, American History," edited by historians the author may err in the other direction by David Hackett Fischer and James M . understating the impact of the Court-packing McPherson. Patterson's work sets a com scheme on the Court. Justice Owen 1. Roberts mendable standard for the volumes to come told a congressional committee in 1954 that and is an appropriate choice to lead the series: he had been "fully conscious of the tremen surely, if any Supreme Court decision qual i dous strain and threat to the existing court" fies as "pivotal," it would be Brown v. Board that the president's proposal posed.42 Second, of Educafion 45 The decision in Brown and as in his efforts to decompress events, White sociated cases affected the school systems of may go too far. There was an abrupt change in seventeen states and the District of Colum Commerce Clause jurisprudence and in appli bia,46 where racial segregation was required cation of the Due Process Clause to commer by law, and those of four states where segre cial regulations in 1937. Indeed, by 1937, the gation was permitted by local option. Viewed Court possessed two options for its future de more broadly, Brown undermined the legal cisions in these matters: it could make the foundations of the social structure of a great wholesale change that it did, or it could have part of the nation . moved piecemeal in that direction, lowering Nicely augmented by maps, tables, the bar of constitutionality without dropping it graphs and a six-page bibliographical essay to the ground altogether. Third, it is easy to and adequately documented by 24 pages of forget that the Court-packing plan was a lso notes, the book's 236 pages of text accom costly to FDR because it was one of the fac plish four goals. First is an account of the tors energizing an emerging conservative co Brown litigation itself and its aftermath, with alition in Congress that had all but been wiped emphasis on the Court's decision in 1954 out, or at least been driven into hiding, in (Brown I), the fashioning of a decree the fol 1936. Progress of the New Deal, as measured lowing year (Brown 1/),47 and the emergence by passage of reform bills, had ground to a of massive resistance in some southern states halt well before the nation went to war in De to implementation of Brown. Except for those cember 1941.43 thoroughly familiar with American politics in Yet the weight of scholarship White chal the late 1950s and early I 960s, the pervasive lenges dwalfs any risk of overstatement or un and virulent hostility to the COUIt in many derstatement here. Whether or not one accepts quarters and the degree of resistance depicted THE JUDICIAL BOOKSHELF 71

In his book Brown v. Board of Education, James T. Patterson asserts that even with some resegregation, public schools in the states of the old Confederacy remain the most racially inte grated in the nation, with public schools in the northeast and parts of the Midwest being the most raci ally segregated. Pic tured are Denver, Colorado students be ing bused to their newly integrated school in the 1970s.

in chapter five ("Southern Whites Fight such as an assessment of court-ordered bus Back") may take a contemporary audience by in g, designed to achieve racial balance, surprise. The su lphurous public statements by alongside the flight to the suburbs, not only by even respectable persons in positions of lead whites but some nonwhites as well. ership make most of the current Court's most Patterson's data highlight ironic re sults: even vociferous critics seem gentle by comparison. with some resegregation, public schools in the Significant compliance with Brown began states of the old Confederacy remain the most only in the wake of the Civil Rights Act of racially integrated in the nation, with public 1964 and the Elementary and Secondary Edu schools in the northeast and parts of the Mid cation Act of 1965, as well as restatements of west being the most racially segregated . Even Brown itself in decisions such as Griffin v. more daunting is exploration of the relation School Board of Prince Edward County, ship between racial integration and academic Green v. School Board of New Kent County, achievement. For this, Patterson draws and Swann v. Charlotte-Mecklenbu.rg Board heavily on various studies, although, at the of Education.48 Throughout, there is attention end, one is left with the sense that much more paid , not only to the major legal and political remains to be learned by way of cause and ef personalities involved, but also to the many fect. Probing such matters in turn raises the "ordinary people" who were litigants at a time equally difficult question, part normative and when a stand in fa vor of racial equality could part empirical, concerning the propriety and be both unpopular and downright dangerous. effectiveness of courts in fomenting social Second, the book carries the narrative change in a democracy. down to the very recent past, detailing th e me What is not reexamined is the strategic re andering path of Supreme Court decisions and lationship between efforts in the 1940s and related cultural developments from the I 950s on behaJ f of voting rights and struggles 1970s49 through the 1990s, including the phe to end legally imposed racial segregation in nomenon of "resegregation"50 and even the public schools. As late as John Kennedy's protest by about 1000 persons outside the Su presidency, the nomination of Brown counsel preme Court Building in 1998 concerning the Thurgood Marshall to the COUl1 of Appeals for scarcity of Supreme Court clerks of color5 ! the Second Circuit was contentious largely be Third, the book tackles some hard questions, cause African-Americans still lacked the vote, 72 JOURNAL OF SUPREME COURT HISTORY

Although Smith v. AI/wright (1944) invalidated the all-white primary a decade before Brown v. Board of Edu cation was handed down, racial discrimination persisted at the ballot box. However, as Patterson points out, the Legal Defense Fund redirected its efforts for civil rights toward school desegregation almost exclusively. Here, an African American votes in a primary election in Dunklin County, Missouri in 1942.

and hence political power, in many states de that developed in the wake of Brown was spite Marshall-orchestrated courtroom victo probably wholly unanticipated. Nevertheless, ries in cases such as Smith v. Allwright.52 Al had widespread racially unrestricted access to though it had invalidated the " white the polls been attained prior to Brown, imple primary"53 a decade before Brown came mentation of Brown would probably have en down, Allwright and similar decisions did not countered less resistance. There would surely come close to ending racial discrimination at have been fewer elected officials digging in the ballot box, as the need for voting rights their heels and engaging in a thorough pillory legislation in the mid-1960s (two decades ing of Brown and the Supreme Court. There after Allwright) made clear. However, by the mjght have been no "Southern Manifesto" is late 1940s, Marshall and the Legal Defense sued by 77 of the lOS Southern members of the Fund had red irected the focus of the drive fo r House and 19 of 22 senators from the Southern civil rights to segregated schools almost ex states that promised to use "all lawful means to clusively. This decision represented a depar bring about a reversal of this [Brown] decision ture from the earlier policy that divided re which is contrary to the Constitution . ... "54 sources between securing the vote and The question is worth considering, and there combating the multifarious forms of segrega seems to be a no more appropriate place for tion. This switch in strategy would seem to that consideration than a book reassessing the call for a reappraisal. The ex tent of opposition place of Brown in American life. THE JUDICIAL BOOKSHELF 73

Finally, the author offers a reconsidera of justice and equality that outshone contem- . tion of just how pivotal Brown has been in the porary goals [of] an ticommunism and past 47 years. At one extreme is the accolade material prosperity." Patterson also credits by 1. Harvie Wilkinson III that Brown was es Brown with helping to transform the Court it sential to the civil rights revolution and its self into a more activist body in pursu it of po achievements: "Very little could have been litically liberal objectives. This in turn stimu accomplished in mid-century America with lated a "larger ri ghts-consciousness" that out the Supreme Court. ... Brown may be the continues to influence "American law and most important political, social, and legal life."58 He finds most satisfying the observa event in America' s twentieth-century his tion by Legal Defense Fund litigator Jack tory."55 At the other is the nearly tragic de Greenberg: "Altogether, school desegregation spondency reflected by the 1993 statement of has been a story of conspicuous achieve Kenneth Clark (whose research in psychology ments, flawed by marked failures, the causes loomed large in the Brown litigation) that of which lie beyond the capacity of lawyers to Brown and related cases accomplished little: correct. Lawyers can do right, they can do "I am forced to face the likely possibility that good, but they have their limits. The rest of the United States will never rid itself of rac the job is up to society."59 ism and reach true integration. I look back and Measured by Patterson's assessment, few shudder at how naive we all were in our belief Supreme Court decisions are in the same in the steady progress racial minorities would league with Brown. Others, however, may be make through programs of litigation an d edu highly consequential and may roi I the politi cation .. . I am forced to recognize that my life cal process, even if they fall short of being de has, in fact, been a series of glorious de scribed as pivotal or epochal. One such sec feats."56 ond-tier case is Employment Division v. As one might anticipate, Patterson's eval Smith,60 the subject of Religious Freedom uation of the record falls between those of and Indian Rights by Washington State Uni Wilkinson and Clark, although he is closer to versity'S Carolyn N. Long.61 Her book is the the former than the latter. Changes in race re thirteenth volume to appear in the "Landmark lations since 1954, he says, "have been Law Cases & American Society" series, ed large."57 As to Brown's own role in what hap ited by Peter Charles Hoffer and N. E. H. pened, "[t]he answer to this question remains Hull. impossible to pin down. On the one hand, we Not only does the Smith decision stand as can agree that the decision did not quickly a landmark ruling on religious liberty, but it transform race relations in public education." has also provoked a continuing tug-of-war be Also needing qualification are claims that tween Congress and the Supreme Court over Brown ignited the "militant civil ri ghts move "the free exercise [of religion]" that the First ment of the I 960s." Because of other forces at Amendment protects. The decision has re work, that "seems in retrospect to have been newed debate over the degree to which consti highly likely by the 1960s," even without tutional interpretation is a shared enterprise, Brown. That said, Brown has had far more not a judicial monopoly. More narrowly con th an a bit part in the story of race relations in sidered, Long believes the case speaks also to the United States after Wodd War II. It "took the majority's treatment of the Native Ameri aim at the heart of constitutionally sanctioned can population. "The Indian plays much the Jim Crow-segregated public education." same role in our American society that the Patterson agrees with Simple Justice author Jews played in Germany," she approvingly Ri chard Kluger that Brown "enabled a quotes Felix Cohen. "Like the miner's canary, 'reconsecration of American ideals' -ideals the Indian marks the shift from fresh air to 74 JOURNAL OF SUPREME COURT HISTORY

poison gas in our political atmosphere; and are ordinarily, if not always, adherents of our treatment of Indians, even more than our more marginal religious groups. Mainstream treatment of other minorities marks the rise faiths, with ample communicants and re and fall of our democratic faith."62 sources, typically fare better in the arena of Th is well-researched and carefully nar majoritarian politics, as the third paragraph of rated study reconstructs events that ensued Justice Stone's Carolene Produc/s footnote when Galen Black and Alfred Smith were four recognized. With particular attention to, fired in 1983 and 1984, respectively, from and sympathy fOf , the plight and interests of their jobs as counselors at the Douglas County the respondents, Long abl y recounts the strat (Oregon) Council on Alcohol and Drug egies, factors, and risks in playas the case Abuse Prevention and Treatment facility be moved toward the Supreme Court of the cause they had ingested peyote in a sacrament United States. of the Native American Church. Oregon law Black and Smith presented the constitu classified peyote as an illegal drug and pro tional problem of religiously based exemp vided no exception for religious use. When tions from religiously neutral laws of general the state employment division denied their ap application. In 1878, the Supreme Court had plications for unemployment compensation ruled that in such situations law trumped because they had been appropriately dis faith,63 but in 1963 the Court held that faith charged for misconduct, Black and Smith could override law, unless government had a eventually filed suit in state court claiming a compelling interest in denying the faith-based violation of the Free Exercise Clause, insist exception.64 When the Oregon Supreme COUlt ing that their use of peyote was essential to the ruled in favor of the claim advanced by Black practice of their religion . Their case illustrates and Smith in 1988, the state successfully peti the observation that free exercise claimants tioned the Supreme Court of the United States

In her new book Religious Freedom and Indian Rights, Carolyn N. Long examines Employment Division v. Smith (1990), the landmark ruling that denied religious liberty claims arising from the ritualistic use of peyote. Pictured is a Crow Indian shaking a traditional peyote rattle during a prayer ceremony. THE JUDICIAL BOOKSHELF 75 for review. OS In 1990, the High Court ruled provide faith-based exemptions "to ensure against Black and Smith, construing the Free broadest support for religiou s exercise." Short Exercise Clause as embodying only a nondis of promoting religion, these would seem to be crimination principle, limiting its protections constitutionally acceptable. The question in to laws that targeted religious practice.66 Smith, after aU , had been whether such provi Within seven weeks, the Religious Free sions were constitutionally required. Such dom Restoration Act (RFRA), designed to re measures succeeded in four states in 1998, instate the 1963 interpretation of the Free Ex and as the book went to press at the end of ercise Clause, was introduced in the U.S. 1999 were pending in as many as nine oth House of Representatives. Backed by an un ers70 Then, at about the same time as Long's usu ally eclectic coalition of both liberal and book went to press (this reviewer can report), conservati ve interest groupsP it became law Congress attempted again to provide national in No vember 1993. Congress re asoned that its protection for religious practice by passing enforcement powers under section five of the the Religion Land Use and Institutionalized Fourteenth Amendment gave it the authority Persons Act. More modest in scope than to define the "liberty" th at the amendment RFRA, it became law on September 22, protected from interference by the states. 20007J As Religious Freedom and Indian Congress's understanding of that liberty, Rights demonstrates, the Supreme Court may however, contrasted sharply with the Court's, decide cases, but debate on the Constitution's and a test of RFRA 's constitutionality was meaning continues. soon underway. Individual Justices, not only judicial de A Texas church challenged application of cisions, may also ignite political controversy. a land use and hi storic preservation ordinance And controversy is part of the legacy of Jus that prevented renovation and enlargement of tice William O. Douglas, whose career on the a sanctu ary to accommodate a growing parish. Bench of more than thirty-six years and six Under RFRA, the city would need compelling months has awarded him the Court's longev justification to block construction; otherwise ity title.?2 Controversy around Douglas the project could proceed, and all the while stemmed not merely from hi s votes and opin the ordinance could still validly apply to non ions that announced unpopular positions on religious establi shments such as a Block behalf of unpopular litigants; other Justices buster Vi deo or a Wal-Mart. In 1997, the Su have acted similarly without generating such preme Court held in City of Boerne v. Flores68 las ting excitement. And it stemmed not only that Congress had exceeded its authority in from his presidential ambitions.?3 Rather, subjecting states to RFRA because the statute controversy swirled around Douglas because changed the meaning of the Free Exercise "through the fifties, sixties and into the seven Clause as set forth by the Court in Smith. ties, .. . Douglas . .. would speak out on every That decision , however, was not the end public issue that he considered vital to the na of the story of the checkered career of reli tional interest."74 During most of the Vietnam giously based exemptions. Political responses War, Douglas was the one member of the to City of Boerne took two forms. First, ac Court prepared to accept claims that the war cording to Long, Congress considered various was an illegal undertaking because it had devices, such as reli ance on the Commerce never been declared by Congress pursuant to Cl ause, in a proposed Religious Liberty Pro Article One of the Constitution. tection Act. It passed the House of Represen Moreover, controversy surrounding tatives in July 1999 only to die in the Senate. Douglas was compounded by his unconven The second respon se moved mainly at the tional lifestyle and success ion of wives. He state level to enact religious freedom actso9 to became the only twentieth-century Justice to 76 JOURNAL OF SUPREME COURT HISTORY be the subject of an investigation by the mid-twentieth century individual to the House of Representatives, preliminarily to twenty-first century. "The writings collected possible impeachment proceedings.7S here," 0' Fallon explains, "exhibit the range Douglas was also a world traveler, the author and power of this most extraordinary man. of thirty books on' legal and nonlegal topics, Lawyer, administrator, judge, civil libertarian, and an avid outdoorsman76 and conservation conservationist, student of international af ist; he was an environmentalist long before it fairs, but perhaps most persistently, son of the became fashionable to be "green."77 The na mountains, prairies, and streams of the Pacific tional hi storic park that preserves the C&O Northwest. From the top of those mountains, Canal along the Potomac River north of one can see a very long way. Douglas saw far Washington, DC, is lasting testimony to his ther' and deeper, than most."83 leadership and persistence.78 O' Fallon's biographical essay of Douglas For anyone first attracted to the study of precedes the five parts in which he has di the Supreme Court during the years of the vided the book: "At Home in the Mountains," Warren and very early Burger Courts, it may "New Deal Judge," "Civil Libertarian," "In be difficult to think of Douglas as a figure ternationalist," and "Conservationist." Only from history. He was a fixture on the Bench five of the volume's twenty-two selections are for so long. Because many issues that Douglas judicial opinions: Douglas's opinions for the engaged sti ll absorb the Court, he seems Court in Terminiello v. Chicago and Griswold nearly contemporary. But he can and should v. Connecticut and his dissenting opinions in now be deemed a figure from history. He left Beauharnais v. Illinois and Dennis v. United the Bench more than a quarter century ago, States84 appear in the third part; his dissenting and more than 100 volumes of the United opinion from Sierra Club v. Morton SS con States Reports have appeared since he last cludes the last part. All together, there are five sat.79 Roughly the same interval lies between excerpts from OJ Men and Mountains (1950), the first year of Woodrow Wilson's presi which remains Douglas's first and doubtless dency and FDR's appointment of Douglas to his most successful attempt at autobiography. the Bench as between Douglas's retirement There are three from both Go East, Young and the first year of George W. Bush's presi Man (1974) and The Court Years (1980), and dency. Most of the seniors graduating from two from My Wilderness (1960). Key to un college in 200 I were born a year before derstanding Douglas's views on the constitu Douglas's death in 1980. One wonders if tional right to privacy is an excerpt ('The Douglas has receded in scholarly interest as Right to Be Let Alone") from The Right ojthe well. More than two decades have elapsed People (1958),86 which contains a synopsis of since the most recent full-length biography of what he wrote seven years later in Griswold, Douglas was published,80 and a decade has including use of the word "penumbra."87 The passed since the last substantial book-length only notable omission is any selection from analysis of Douglas appeared.81 We the Judges (1956), which still stands as It is therefore both refreshing and gratify solid reflection by a sitting Justice on the judi ing to see publication of the imaginatively and cial function itself. beautifully titled Nature's Justice, edited by The tenures of Douglas and William H. the University of Oregon's James 0'Fallon.82 Rehnquist overlapped barely four years. Al Rather than a collection of essays about though considerable ideological distance sep Douglas, the book contains a selection of arated them,88 they were friends. The latter is Douglas's own writings spanning nearly apparent in a new edition of the Chief Jus thirty years. Nature's Justice should thus tice's book, The Supreme Court,89 first pub serve as a reintroduction of this important lished in 1987. As with the original edition, THE JUDICIAL BOOKSHELF 77

University of Oregon professor James O'Fallon has edited a collection of writings by William O. Douglas (above) titled Nature's Justice. O'Fallon describes Douglas as a u • • • son of the mountains, prairies, and streams of the Pacific Northwest. From the top of those mountains, one can see a very long way. Douglas saw farther, and deeper, than most."

The Supreme Court is part a history of the The first chapter tells of RehnqlJist' s arrival in Hi gh Court (through the end of the Warren Washington in early 1952 to become a law years), part a treasure of anecdotes, and part clerk to Justice Robert H. Jackson. Two chap an explanation of how the tribunal functions. ters describe, from a law clerk's perspective, And, to a degree, it is also a personal memoir. the famous Steel Seizure Case, with its repri- 78 JOURNAL OF SUPREME COURT HISTORY

mand to President Truman.9o Rehnquist con litical dimension, as one would expect from cludes that public opinion "played an appre someone who endured two stormy confirma ciable part in causing the ... Case to be tion battles, in 197 I and 1986, in the Senate. decided the way it was," noting generally that Of Roosevelt's Court-packing plan, "[sJuP Justices "are not able to ... isolate themselves porters ... were fond of saying that they had from public opinion" and that "it would prob lost the battle but they ultimately won the ably be unwise to try."9 1 It is apparent war. ... It is perhaps more accurate to say that throughout that Rehnquist loves history, that had [FDRl only exercised a little more pa he can spot humor in history as well as truth in tience, he could have shaped the character of humor, and that he knows how to tell a good the Supreme Court in the way that most strong story. presidents have tried to shape it, without at Douglas, for example, "was very much of tempting to restructure the institution itself."94 a maverick throughout his life," Rehnquist re Indeed, Rehnquist believes that the 1937 ex calls. "[Alt the Court conferences we some perience may have given the word "pack" its times had the impression that he was disap "highly pejorative connotation" in connection pointed to have other people agree with his with the Supreme Cou11. " It need not have views in a pallicular case, because he would such a connotation when used in this con therefore be unable to write a stinging dis text. ... Thus, a president who sets out to pack sent." He possessed "a brilliant legal mind, the Court does nothing more than seek to ap but by the time I came to know him as a col point people . . . who are sympathetic to his league I think he was somewhat bored with political or philosophical principles. There is the routine functions of the COUll." While the no reason in the world why a president should other Justices made an effort to complete not do this. "95 work before the first of July, "Douglas went These and other points would be interest us one better; he was a very rapid worker and ing in any author's book, but they are particu would invariably have his duties all done larly noteworthy in this one. They may pro sometime in early June. Then, without notifi vide clues into Rehnquist's thinking about the cation to anyone, he would simply leave judicial function. This is a rare opportunity. Washington for ... Goose Prairie, Washing No other person has written books specifi ton .... There was no phone at the Goose Prai cally about the Court and its Justices while rie home, and if Bill wanted to check in with holding the nation's highest judicial office the Coull he would go to a pay phone and this is Rehnquist's fourth .96 John Mar nearby ... ; but there was no way for any of shall's biography of George Washington ex us to communicate directly with him. I re plained Federalist principles of government.97 member his once telling Lewis Powell that William Howard Taft authored a book about had he only seen the latter's dissent in a case the president and published a volume of es that was handed down in the later part of June says on government before President Harding he would have joined the dissent rather than named him to the Court98 As Chief Justice, the majority opinion."92 Yet Douglas's mav Taft expounded in at least one book on the na erick style was costly. His "influence waned ture of American constitutional govern rather than waxed in the course of those years. ment99 The lectures of Charles Evans Hughes .. . [TJhe attention that he had once devoted to on the Court lOO remain a classic over seven the Court's work spread out to include other decades after publication, yet the book ap interests. He had the intellectual ability to peared twelve years after his resignation as all ow him to do the COUll'S work on a Associate Justice and two years before his ap part-time basis, but his reputation suffered."93 pointment as Chief. Chief Justice Stone left an Rehnquist is frank about the Court's po- abundance of papers to scholars, but no book. THE JUDICIAL BOOKSHELF 79

Chief Justice Warren' s short volume on dem Troubled Legacy (New York: Oxford Uni ocratic government appeared after his retire versity Press, 2001). Pp. xxx, 285. ISBN: ment, as did his memoirs.lol Chief Justice 0-19-512716- 1 (cloth). Burger made a large number of addresses (many of them published as articles), but REHNQUI ST. WILLIAM H. The Supreme authored no book on the Court in general. Court, new edition (New York: Alfred A. Thus, as with the first edition of Rehnquist's Kflopf, 2001). Pp. XI, 302. ISBN: book in 1987 (The Supreme Court: How It 0-375-40943-2 (cloth). Was, How It Is), Grand Inquests (1992), and All the Laws but One ( 1998), thi s new WHITE. G. EDIVARD. The Constitution and enlarged edition of the first-named is of and the New Deal (Cambridge, MA: Harva rd instant interest because of its author. University Press, 2000). Pp. x, 385. ISBN: Rehnquist's book and the others consid 0-674-00341 - 1 (cloth). ered in thi s essay point to the special place, blending both law and politics, that the Su preme Court has long had in the American po litical system. The Court is truly both temple ENDNOTES and forum. A century prior to Justi ce lThe aUlhor Ihank s James F, Van Orden, who read a drafl Douglas's retirement, President Ulysses of Ihi s essay and made helpful commenlS. Grant cast about for a new Chief Ju stice. ''The 2By contrasl, in slates with elected judiciaries, judges are Supreme Court of the United States is a frequenlly thrust inlo partisan combat by necessity. .l However, nineteenth-century American history offers unique institution," commented the Times of some examples of Ihe firsllwo tactics. Even in the twen London as it watched the process unfold. "No lielh century. Ju sli ce C harles Evans Hughes leff the other country possesses a tribunal endowed Bench to run for presidenl in 1916. and, as noted in more with such traflscefldeflt authority ."102 That ob delail below. Justice William O. Douglas had presidenlial servati on remains true and assures continued aspiralioos in Ihe j 940s and early 1950s. attention to the Third Branch. 4A lpheus Thomas Mason, "The Supreme Courl: Temple and Forum." 48 Yale Review 524 ( 1959), sYales. a New York judge, was one of Ihat state's three ************ ** **~:*** delegales to the convention. Unhappy with Ihe direction of the proceedings. he and fellow delegale (and Albany THE BOOKS SURVEYED IN THIS ARTICLE mayor) John Lansing left Ihe convenlion on July 10. ARE LISTED ALPHABETICALLY BY 1787, During the debates over ratification. Yates pub AUTHOR BELOW lished his crilicisms of the proposed Constitution in a se ries of leiters in the New York Journal and Weekly Regis ter. Three dealing with the judicial power appeared in LONG. CAROLYN N. Religious Freedom January, February. and Marc h of J 788; they were re and Indian Rights: The Case of Oregon v. printed as an appendix 10 Edward S. Corwin. Court Over Smith (Lawrence: Ufliversity Press of Kafl Constitution 23 j - 262 ( 1938). The phrases quoted here sas, 2000). Pp. xii, 317. ISBN: 0-7006-1064-2 come from pages 238 a nd 243, Yales's essays protnpled (paper). Alexander Hamilto n. (the only New York delegate 10 sign Ihe Constitulio n) to respond in The Federalist, especially in no. 78. O ' FAL LON. JAMES . ed. Nature's Justice: 62 U,S. (2 Dallas) 419 ( 1793). Writings of William O. Douglas (Corvallis: 75 U.S. (I Cranc h) 137 ( 1803). Oregon State University Press, 2000). Pp. x, 8Letter from James F. Van Orden t6 the author, October 3. 310. ISBN: 0-87071-482-1 (cloth). 2000. 9Quoted in Charles Warren . The Supreme Court in United States History. vo l. 1, 287 (rev. ed. 1926). PATTER SON. JAMES T Brown v. Board of lOQuoted in id., vo l. 1, 723 (emphasis added). Education: A Civil Rights Milestone and Its 1 Wiles' Weekly Reg ister, June 22, 1822, 266; qU Oled in 80 JOURNAL OF SUPREME COURT HISTORY

Donald Grier Stephenson, Jr., Campaigns and the 30White,6. Court: The U,S. Supreme Court in Presidential Elec 31/d., 36. tions 68 (J 999). )2Id.,1 29. 12YoungsTown SheeT & Tube Co. v. Sawyer, 343 U.S. 579 J3The "emergence of modernity in the twentieth cen tury" ( 1952). man ifested itself in an "attitude that elevates human 13/,.,unigraTiol1 and NaTuralizaTion Service v. Chadha, 462 agency, as di stinguished from potent ex ternal forces, to a U.S. 919 (1983). position of causal primacy in the universe, and thus takes 14 Roe v. Wade , 4 10 U.S. 113 ( 1973 ). for granted tha t hum ans are capable of co nt rolling thei r 15531 U.S. 98 (2000). environment and shaping thei r collec ti ve destinies." Id. , 16Quoted in Alpheus Thomas M a on and Donald Grier 5. Stephenson , Jr., American Constitutional Law: Intro 341d., 61 . Sut herland 's views, which he had been advocat ductory Essays and Selected Cases 24) (12th ed., in g for over two decades, found primary cxpres sion in his 1999) op inion for th e Court in U"iTed STaTes v. CUr/iss-WrighT 17G. Edward White, The Constitution and the New Deal ExporT Co/p., 299 U.S. 304 ( 1936). (2000) (here after ci ted as White). )5304 U.S. 144 (1938).

I~White's sleuthing leads him to the conclusion that 36"Filled milk" was ordinary milk from which the butter Prince ton ' s Edward S. Corwin was the source of that fat had been removed, with palm oil or a similar fat sub often-quoted phrase. It appears in a lerrer Corwin wrotc stituted in its pl ace. to U.S. Attorney General Homer S. Cummings on May )7304 U.S. at 152 (e mphas is added). 19, 1937 , soon after the "switch," White, 3 19, n. 4. 38/d., at 152-153, n. 4. 19Id., 19. White refers to the standard accou nt throughout 39White, 162. as the "Court-packing tale." 40 1d , 351 , n. 107. 20ld. , I. 41 /d. , 163. 21For Court aficionados who may never have see n thi s 42Quoted in Mason and Stephenson, American Constitu one, the reference is to Fred Zinnemann's classic western tional Law 52. film of 1952, for which Gary Cooper received an Oscar. 43James T. Patterson, Congressional Conservatism and Cooper plays Will Kan e, a just-married small-town sher- the New Deal 165,325- 337 (1967). iff who is about to retire and sWrt a new life wi th his bride 44 James T. Patterson, Brown v. Board oJ Educatioll (Grace K el ly). The future is placed in doubt, however, (200 I ) (hereafter cited as Patterson). when Kane learn s that Frank MilicI' and other gun sl ingers 45347 U.S. 483 ( 1954). are to arrive on the train at high noon to settl e an old 46Bolling v. Sharpe, 347 U.S . 497 (1954). score. When deputies and townspeople desert him, Kane 47349 U.S . 294 (1955). stands alone in the showdown wi th Miller and his hench- 48377 U.S. 2 18 ( J964); 391 U.S 430 ( 1968); 402 U.S. men. (1971 ). 22White, 315-3 I 6, n. 4. In particular, White refers to his 49Contrary to th e statement in Patterson. 206, it wa s Jus The American Judicial Tradition 177- 178 ( 1st ed., tice Lewis Powell , not Ju stice Harry Blackmun, who "es 1976). pou sed" the argument "for racial diversi ty in higher edu 2)White. 310. cat ion" as a justification for affi rmative action in RegenTS 24 1d .. 9, 312. v. Bakke, 438 U.S. 265 (1978). Compare Powell's opi n 251d., I. ion, 438 U.S. at 311 - 324, with Blackmun's, 438 U.S. at 26Id., 308- 309. 402-408. 271d. , 309. 50See , for example, Board oJ EducaTion oJ Oklahoma Ci ly 28 /d .. 25. v. Do well, 498 U.S. 237 (199 1), and Freeman v. PillS, 503 29 Id., 269. The phrase is the title of Chapter nine. White U.S. 467 (1992). does not speak to the releva nce th at " the new 51P atterson , 2 11. institutionalism" migh t offer for understanding judicial 52 321 U.S. 649 ( 1944). decisionmaking during this period. It is a third approach ·))By barring blacks from voting in Democratic primaries that emphasizes th e influence of in st itutiona l factors. in stares where the Republican party wa s practically non apa rt from personal preferences and legal plinciples, on ex istent , thi s device effectively disfranchi sed blacks in lega l development. See Lee Epstein and Jack Knigh t, local, state, and congressi ona l election s. The Choices Justices Make (1998): Cornell W. Clayton 54"Declaration of Con stitutiona l Principles issued by 19 and Howard Gillman, ed s. , Supreme Court Deci- Senators and 77 Representatives or the Congress, " New sion-Making: New Institutionalist Approaches l'ork Tim es, March 12, 1956, p. 19. ( 1999). 55J. Harvie Wilkinson 11f, From Brown to Bakke: The THE JUDICIAL BOOKSHELF 81

Supreme Court and School Integration 1954-1978 3, 6 length of Chief Justice John Marshall 's tenure. See Clare (1979), Since 1984, Wilkinson has been a judge on the Cushman, The Supreme Court Justices: Illustrated United States Court of Appeals for the Fourth Circuil. He Biographies, 1789- 199353 1- 534 ( 1993), Born in 1898, became c hief judge in 1996, Douglas was named Sterling Professor of Law at Yale 56Quoted in Patterson, xx.ix, Uni versity at age 32, chairman of the Securities and Ex 5l ld" 220, change Commission at 38, and Associate Justice of the 5~ /d., 221-222, Ri chard Kluger's Simple Justice was Supreme Court at 40, published in 1976. See 0, G, Stephenson, Book Review, HDouglas was seriously considered for vice president in 13 Houston Low Review 108 1 ( 1976), 1944 (had he been chosen, he would have become presi 59 Patterson, 223, quoting Jack Greenberg, Crusaders in dent in 1945), craved the Democratic presidential nomi the Courts 40 I, Greenberg's book was reviewed in "The nation in 1948, was offered the vice presidential spot by Judicial Bookshelf' in the Journal ofSuprem e Court His President Harry Truman in 1948, and did not renounce lOry ( 1994), 158-160, presidential ambitions before 195 I, Douglas probably 60494 U.S, 872 ( 1990), As ex.plained in endnote 65 turned down Truman's 1948 invitation because he, like below, the case is someti mes referred to as Smith /I, man y others, thought Truman would lose the election. 61.Carolyn N, Long, Religious freedom and Indian l4James F. Simon, Independent Journey: The Life of Rights (2000) (hereafter cited as Long), William O. Douglas 275 (1980) (hereafter ci ted as 62Id" 3. Simon, Independent Journey), 63Reynolds v, United States, 98 U,S, 145 (1879), l5 Representative Gerald Ford, who as presjdent wou ld 64Sherbert v, Verner, 374 U,S, 398 (1963). name Douglas's successor in late 1975, led the drive for 65Employmellt Di vision v, Smith (Smith 1 1), 494 U.S, 872 the Justice's impeachment. U,S . House of Representa ( 1990), This was actuall y the case's second trip to the ti ves, Committee on the Judiciary, Associate Justice Wil High Courl. In Employment Division v, Smith (Smith f), liam 0, Douglas, Final Report by the Special Subcom 485 U,S, 660 (J988), the Court sidestepped a ruling on mittee on H, Res. 920, pursuant to H, Res, 93, a resolution the merits by remanding the case to the Oregon Supreme authorizing the commillee on the judiciary to conduct Court for a ruling on the legality of peyote within the studies and investigations relating to certain matters state, within its jurisdiction, 91 st Congress, 2nd session, 1970, 66The vote was 6 to 3 in favor of the state, although the l60ne anecdote about Douglas suggests that Washington Court split 5 to 4 on the question of the meaning of the state, where he retreated in the summer months, held Free Exercise Clause, Justice O'Connor concurred in the more allraction for him than his work in Washington, DC. result, holding that the denial of unemployment benefits In the spring of 1957, Douglas delivered the North Lec could be sustained under principle announced in Sherbert tures at Franklin and Marshall College, later published as v, Verner, However, the Court remained th oroughl y pre The Right of the People ( 1958), During hi s visit to the pared to protect religious practice against laws targeting campus, college president Dr. Theodore Distler escorted re li gion, even after Smith, This became clear when Douglas to the constitutio nal law class tau ght by an assis Church of the Lukumi Babal" Aye, Inc, v, City of Hialeoh, tant professor of political sc ience named John Vanderzell, 508 U,S , 520 ( 1993), struck down an ordinance outlawing Vanderzell, now retired, recalls arriving at class that day the killing of animals as part of a religious ritual. The or prepared wi th a li st of questions about the Court and con dinance prohibited almost nothing except religious prac stitutionallaw to pose to the Justice, Douglas's an swer to tice and so amounted, in Justi ce Kennedy's words, to a each one was a cryptic "yep" or "nope" Within a few "religious gerrymander." minutes Professor Vanderzell had exhausted his li st of 6lHowever, the People for the American Way is not, as questions without having drawn a single complete sen Long writes, an organization "from the right." See Long, te nce from the mouth of the visiting Justi ce, Fortunately, 203, President Distler asked Douglas about hiking in the 6H52 I U,S, 507 ( 1997), Northwest. Douglasjumped onto the question and talked 69Long, 270, without interruption-about hiking-for the remaining lO ld,27 1, forty minutes of c lass, l lpub, Law No, 106-274, 114 Stat. 803, 77 ln the words of scholar and Douglas acquaintance and 72Douglas took the judicial oath on April 17 , 1939, and sometime collaborator Walter F. Murphy, " Douglas's retired on November 12, 1975, follow ing a stroke on New personality fit no stereotypes, or perhaps it fit too many_ Year' s Eve, 1974, Douglas had surpassed the previous He was, as Sidney Davis, his closest fri end, put it, 'an in record holder, Justice Stephen J, Fi eld, who lOok the judi troverted and private man who led an active and public cial oath on May 20, 1863, and resigned on December I, life, a peaceful man who lived with conflict, and a quiet 1897, Field served barely long enough to exceed the man who would not hold hi s silence,' Doug las was the 82 JOURNAL OF SUPREME COURT HISTORY

dour Scot as well as the witty Celt; a workaholic on the ne atl y in focus if we fas hi oned a federal rule that allowed Coun. a relaxed, lu xuriating hiker and fisherman at play; environ mental issues to be liti gated . ' . in the name of the a meticulous craftsman writing on the law of securities or inanimate object about to be despoiled, defaced, or in monopolies, a careless composer of judicial opinions for vaded by roads and bulldozers, , , , [C loncern for protect public consumption; a , shrewd participant in domestic ing nature's equilibrium should lead to the conferral of politics; a simplistic, moralisti c commentator on interna standing upon environmental objects to sue for their own tional relations," Murphy. "The Constitution and the preservation," Id, . at 74 1-742 (di ssenting opin ion). Legacy of Justice William 0, Douglas," in D. Grier R6See endnote 75 above, Stephenson. Jr. , ed ,. An Essential Safeguard: Essays on R70 ' Fa ll on.2 11. the United States Supreme Court and Its Justices 104 R8 Henry J. Abraham, justices, Presidents, and Senators (1991) (citation omitted), 270-271 (1999). 7~The last of the photographs inserted between pages 216 89 William H, Rehnquist, The Supreme Court (new edi and 217 in Simon's Independent journey shows Cathy tion , 200 I), The Chief Ju stice refers 10 Douglas's sum Douglas unveiling a bu st of her hu sband , depicted appro mer horne in Goose Prairie, Washington, as a place pri ately in a hiker's open-collared shirt, alongside the "where my wife, Nan, and I once spent several delightful C&O Canal in 1977. days as guests of Bill and his wife, Cathy," Id., 226 , 79The last case in which Douglas participated appeared in 9Uld,. 151-192, volume 422 of the Reports, As of mid-200 I, the volume 01Id" 192, count has passed the 530 mark. 92 /d., 225- 226. 8oS ill1on , Independent journey, 9" d.,1 37 . RIStephen Wasby, ed" "He Shall Not Pass This Way 94 fd., 133 . Again": The Legacy of Justice William O. Douglas 95 Id, ,209, (1990) ; see also Howard Ball an d Phillip 1. Cooper, Of 96This count considers the two editions of The Supreme Power and Right: Hugo Black, William O. Douglas, Court as two books, and America's Constitutional Revolution ( 1992), 97The Life of George Washington, 5 vols, ( 1804-1 807). R"James O'Fallon, ed., Nature's justice (2000) (hereafter 9XOur Chief Magistrate and His Powers (1916); Popu ci ted as O'Fallon), lar Government (1913), 83 1d. , 18, 99 Liberty Under Law ( 1922), 1W337 U.S , 1(1949); 381 U.S, 479 ( 1965); 34 1 U.S, 494 looThe Supreme Court of the United States (1928), ( 1952) (dissenting opin ion ); 343 U,S, 250 ( 1952) (dis lUI A Republic, If You Can Keep It ( 1972): The Mem senting opinion). Griswold, the birth control case from oirs of Earl Warren ( 1977), Connecticut, announced a constitutional ri ght to privacy, I02Edilorial, January 21 , 1874, Quoted in Charles The ot her three are free speech cases. Fai rman, Reconstruction and Reunion 1864-88, Part R5405 U,S , 727 (1972), Douglas wrote: "The critica l Two 61, II. 187 ( 1987), question of 'standing' would be simplified and also put Review of Edward A. Purcell, Jr., Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of Federal Courts in Twentieth-Century America 1

MELVIN I. UROFSKY

One of my strongest memories of law school remains the first class in "Federal Courts." The teacher began by asking if anyone could explain the holding in Erie Railroad Co. v. Tompkins (1938)2 Several students raised their hands, and the answer was soon forthcoming. Federal courts were bound by the decisional rules of the state courts in the states in which they were located; there is no federal common law. "Very good," the teacher said. "If you know that, why are you taking this course')" Then he asked if anyone could tell him that time (the early 1980s) there seemed to be the holding of a case decided that same day, very little explanation in the various court de and also written by Justice Louis O. Brandeis, cisions we read as to Erie's applicability. Hinderlider v. La Plata River & Cherry Creek Now comes before us Edward A. Purcell, Ditch Co. (1938).3 We all looked around. This Jr. , professor of law at the New York Law was not a case anyone of us had ever heard of, School, whose book has justifiably been nor had it been mentioned in either the Con awarded the Supreme Court Historical Soci Law or Civil Procedure courses we had taken. ety's Erwin A. Griswold Award. There are "That case," our professor went on, "holds very few books r read, even ones I admire that there is a federal common law. And that greatly, which inspire me after I am finished is why you are taking this course." And so, for to say, "I wish I had written that book." But the next fourteen weeks, we tried to learn this is one of them, and scholars of the Court, when federal courts had jurisdiction, what de of federal jurisdiction, and of Brandeis will be cisional rules they had to follow, and when forever in Purcell's debt. Almost from the day Erie applied and when it did not, although at it came down, Erie has been one of those 84 JOURNAL OF SUPREME COURT HISTORY

"great" cases that have puzzled lawyers, law of "the laws of the several states," to mean professors, and judges-one might even say, that federal courts need only be bound by the especially judges. While Brandeis, with the " laws" of the states. They were free to ignore exception of his classic concurrence in Whit decisional rules, which were often part of ney v. California (1927),4 is not known for his state common law, and to create a separate eloquent style, for the most part hi s opinions federal common law when hearing commer are straightforward and-in what was one of cial questions. the cardinal rules of his jurisprudence-lim Since both the laws and the common law ited to the specific issue on which the case of states varied greatly, this meant that com hinged. His Erie opinion, however, is often mercial litigants could look around for a fed muddied, covers several grounds, and has a eral court whose rules would be most recep section of constitutional justification that for tive to their arguments. Despite the supposed decades even Brandeis's champions ignored, barrier that the Constitution had erected to considering it irrelevant and indeed embar limit federal court jurisdiction, it was not very rassing. What Purcell has done, mirabile hard, especiaJIy with judges sympathetic to dictu, is show that Brandeis knew exactly business interests, to meet the diversity of citi what he was doing, that the reasoning in the zenship criteria. As a result, state laws and case makes excellent sense, and that the mores cou ld be ignored. One of the most noto long-ignored constitutional section is not only rious abuses of this practice came when a understandable, but is at the heart of Kentucky taxicab firm went across the state Brandeis's argument. line, reincorporated in Tennessee, and then In case any of the lawyers in our reader went into federal court to secure an injunction ship have forgotten their own "Federal against a Kentucky competitor that had fol Courts" course or are a little rusty on their lowed Kentucky law.? The Supreme Court up constitutional history, here is a brief review. held the lower federal court, leading Holmes, In 1812, the Marshall Court in United States joined by Brandeis, to enter a vigorous dissent v. Hudson and Goodwin5 declared that federal in which Holmes termed the Swift decision common law jurisdiction did not exist in the "an unconstitutional assumption of powers by new nation. As the country's economy ex courts of the United States which no lapse of panded and firms began doing business in two time or respectable array of opinions should or more states, entrepreneurs began demand make us hesitate to correct."s ing legal consistency across state lines. The Most stories of what happened next rules of the market did not vary significantly merely indicate that Brandeis then went on a from state to state; why, then, should business crusade to overturn "Old Swifty," and have to work with a multitude of often con achieved his goal ten years later in Erie. In flicting legal rules? Justice Joseph P. Story, fact, as Purcell shows so well, the drive to who had never accepted the holding of Hud undo the Swift holding antedated Brandeis's son and Goodwin, sympathized with this appointment to the Court, and was carried on complaint, and through much of his career in both the Congress and in academia in the sought to achieve a uniformity of decisional decade between the taxicab case and Erie. rules in federal courts. In 1825 he managed to get Congress to pass a limited version of a * :1: * *" * federal criminal code. But his greatest triumph came in 1842 in Swift v. Tyson,6 when Purcell begins his story proper, not with he interpreted Section 34 of the judiciary Act the taxicab case, but with Justice David 1. of 1789, which required federal courts in trials Brewer and his notions of judicial primacy at common law to follow the decisional rules within the framework of the Constitution. REVIEW OF EDWARD A. PURCELL, JR. 85

In Black & White Taxicab Co. v. Brown & Yellow Taxicab Co. (1928). the Supreme Court permitted a Kentucky taxicab company to reincorporate in Tennessee in order to secure an injunction against a Kentucky competitor that followed Kentucky law. Since both the laws and the common law of states varied greatly. commercialliti gants could look around for a federal court whose rules would be most receptive to their arguments.

Most of us are familiar with the traditional eral courts primacy, not only over state courts tale of how courts in the late nineteenth and and legislatures, but also to some extent over early twentieth century allegedly defended Congress as well. business interests against Populist and Pro Granted, Brewer did not build this edifice gressive reforms. We now know. of course, from straw. During the latter part of the nine that the story is far more complicated than teenth century, federal courts had increasingly that. But, by focusing on the reform cases, ignored state court decisional rules and struck Purcell suggests that we miss the biggest story down state laws they believed threatened of the time, namely that "the most pervasive property rights. Brewer gave this movement and enduring achievement of that Court was an intellectual coherence. His work came to not political, social or economic. It was insti fruition in Ex parte Young in 1908. 10 In that tutional. The Court strengthened the power of "crowning achievement," the Court upheld the federal courts-albeit somewhat errati the ruling of a lower federal court enjoining cally and incompletely-to establish the pri the attorney general of Minnesota from en macy of the national judiciary in American forcing the state's rate regulations against a government."9 Brewer proved to have been railroad. According to Purcell, the case re the chief architect of the achievement, and it shaped federal law in four distinct areas. First, was he, building on the base Story laid down it authorized federal injunctions against in Swift. who elevated the importance of fed threatened state criminal prosecutions and eral common law, and in doing so gave fed- created the constitutional rationale for avoid- 86 JOURNAL OF SUPREME COURT HISTORY ing the limits imposed by the Eleventh of the Arkansas River before they flowed into Amendment. Second, it extended federal judi Kansas. Both states claimed common law cial authority by creating, "in effect, a doctrines of riparian rights, but Colorado put judge-made cause of action for injunctive re forward a version that it and other arid west lief." Third, a claim made under the Four ern states preferred. The Court thus had to de teenth Amendment could now be heard in fed cide which substantive common law applied eral courts without any allegation that state to the suit. What might have been a minor agents had in fact committed any type of com case suddenly took on major importance mon law tort. Finally, it created a new consti when the Roosevelt administration intervened tutional cause of action, and in doing so cir to protect its program to reclaim western lands cumvented the strictures of the "well-pleaded through the construction of dams and irriga complaint" rule, under which federal courts tion systems. The attorney general asked the could only hear cases in which plaintiffs Court to reject the claims of both states, and and plaintiffs alone-had to present properly instead to base its decision on "a new law of pleaded federal c1ai mS . 11 waters on interstate streams," a law that The activist nature of this decision could would be national in scope and grounded in not be hidden, and in fact the Court did not the Constitution. even try. What had been accomplished was Writing for a bare five-member majority, breathtaking. Story had basically intended to Brewer rejected the federal government's ar avoid the morass of conflicting state commer guments. fn one spectacular bit of reasoning, cial law and thus provide relief for the growing he noted that Article IIf gave the courts "all number of interstate business organizations, in the judicial power which th e new Nation was essence giving federal courts primacy over capable of exercising," but that it set strict state courts in a particular area. Brewer and his limits on the powers of Congress. Since the colleagues went much further. Under Young, Constitution reserved many powers to the federal courts had primacy, not only over state states, when a conflict arose between or courts in all areas, but over state legislatures as among those powers, only the judiciary had well, even in matters that had traditionally the necessary constitutional authority to inter been left to state government. Moreover, vene. As Purcell notes: where courts normally had to wait for a case or Kansas v. Colorado was a breathtak controversy to arise, Young provided a mecha ing performance, the work of a con ni sm where courts, with minimal help from ag stitutional virtuoso-indeed of a grieved parties, could initiate actions on their constitutional framer. In a single own. Most important, Young gave federal opinion Brewer denied the power of courts the power to define their own jurisdic the national legislative and executive tion, thus giving them primacy over the Con branches, elevated the federal judi gress to whom the Constitution had suppos ciary to a position of constitutional edly assigned responsibility for fixing the primacy over both Congress and the limits of federal court powers. This last issue, states, and carved out an important which was the least understood during the Pro area of conflict where the Court's in gressive Era, is, as we shall see, at the heart of terstate common law would reign Brandeis's constitutional arguments in Erie. free and unchecked. 14 To see how this jurisprudence played out, Purcell directs us to two cases, Kansas v. Col While Brewer was undoubtedly right that ri orado (1908)12 and In re Debs (1 895).13 In the parian rights on interstate waters had to be de first case, Kansas filed suit in the Supreme fined by a national power, he arrogated that Court to stop Colorado from diverting waters power to the courts, and did so through the re- REVIEW OF EDWARD A. PURCELL, JR. 87

In Kansas v. Colorado (1908), Kansas filed suit in the Supreme Court to stop Colorado from diverting waters of the Arkansas River (pictured) before they flowed into Kansas. Both states claimed common law doctrines of riparian rights, but Colorado put forward a version that it and other arid western states preferred. The Court thus had to decide which substantive common law applied to the suit, a decision that took on major signifi cance when the Roosevelt administration intervened to protect its program to reclaim western lands through the construction of dams and irrigation systems.

markable conceit of finding a great well of ju strike as an obstruction of interstate com dicial power in the Tenth Amendment. merce, and when Debs refused to call off the The Debs case involved the first impor strike he was jailed for contempt. tant use of an injunction in a labor dispute. In When Debs appealed his contempt con 1894, the employees of the Pullman Company viction as well as the use of the injunction to in Chicago went out on strike, and Eugene V. the Supreme Court, Brewer refused to invoke Debs led the members of the American Rail the Sherman Act but in stead used the opportu way Union outon a sympathy strike to support nity to decide the case "on the broader them. The strike soon spread and erupted into ground." He explored the powers of the fed violence, and the federal government, over the eral government relating to interstate com objections of Illinois governor John Peter merce, not only to specific· acts, but also to Altgeld, sent troops in to restore order and pro what may have been one of the first references tect the mails. A lower federal court then is to a "dormant" commerce power. While ac sued an injunction, based on the Sherman An knowledging that Congress had power to leg titrust Act, against the continuance of the islate in this area, he asked whether, in the ab- 88 JOURNAL OF SUPREME COURT HISTORY

Unlike its decision in Kansas, the Supreme Court's decision in In re Debs gave power to Congress-unless it went unexercised, in which case that power devolved to the courts. The Debs case involved the first important use of an injunction in a labor dispute-a strike by Pullman Palace Car Co. employees. Pictured is the 15th U.S. Infantry Company C, which President Grover Cleveland called in to help break up the railroad strike, posing beside a special Rock Island Railroad Patrol train .

sence of congressional action, the federal from a more diverse pool, in fact businessmen government was powerless to prevent the recognized that federal judges, far more than blocking of interstate commerce. Clearly that state judges, shared their view of property could not be so, and therefore if Congress did rights and laissez-faire. The judiciary stood as not act, then the courts could. a barrier between them and the demands of re In Debs, Congress had power, but if un formers at both the state and national levels, exercised it devolved to the courts; in Kansas, and under Swifl-as augmented and inter Congress had no power, and the Supreme preted by Brewer- federal courts could in es Court "had it all." It is this accretion of power sence ignore, not only state decisions, but in to the courts, not just the relatively simple many instances state law as well, and could doctrine of Swiji, that Brandeis and others at develop their own probusiness common law. tacked. The attack on judicial power came from a Of course, corporate interests and th e variety of sources. Reformers, both Populists corporate bar welcomed this accretion of and Progressives, saw the courts as enemies of power to the federal coul1s. Although they ar reform. States' rights proponents-and these gued th at federal courts protected them from were not limited to the South-also opposed "local prejudice" and had fairer juries drawn yet another augmentation of federal authority REVIEW OF EDWARD A. PURCELL, JR. 89 at the expense of the states. The most sus stitutional part of the Brandeis opinion and tained attack came from the intellectuals, led Purcell's analysis of it, because it clears up by Oliver Wendell Holmes, Jr., and later by many misconceptions about what Brandeis law professors such as Felix Frankfurter of actually meant and said. Harvard. Throughout the Progressive Era, re Brandeis had long wanted, not only to formers in Congress tried to get through bills overrule Swift, but also to undo what he saw Jimiting diversity jurisdiction, but to no avail, as the overreaching federal judicial power that although the effort began anew in the 1920s Brewer had created. When Erie came along, after the taxicab case and Holmes's biting dis he had his chance, and, like Brewer, he would sent. The first real victory of reformers came not allow such an opportunity go by. The con in 1931, when Congress enacted the Norris stitutional crisis of 1937 had changed the dy LaGuardia Act restricting the power of federal namics of the Court, both internally and courts to issue injunctions in labor disputes. vis-a-vis Congress. Moreover, the replace By then, the Depression had dissolved the ment of Willis Van Devanter and George public's faith in large corporations, and had Sutherland by Hugo Black and Stanley Reed replaced it with anger against big business's gave Brandeis a potential majority. In addi antilabor policies. But the public in general, tion, Benjamin Cardozo's absence due to ill while understanding the problem with labor ness supported Brandeis's cause; had Cardozo injunctions, really had no comprehension of been present, he would no doubt have argued the Swift doctrine, and conservative members for a continued nalTowing of Swift rather than of Congress opposed any dilution of judicial for its outright reversal. There is no question power, which they saw as a bulwark, not just that Brandeis the Progressive had his agenda, for business, but against wild-eyed reformers and he surely recognized by 1938 that, after as well . If change were to come, then, it would twenty-two Terms on the Court, he had little have to come from within. Louis D. Brandeis, time left. (In fact, he resigned the following now in his eighties, undertook that task as his February.) last great challenge on the Bench. Ever the teacher, Brandeis spent half of his Erie opinion detailing the mischievous re * * * '* * sults of Swift. Where Holmes, in the taxicab case, had objected primarily on intellectual Tn my opinion, Purcell's research and grounds to the notions of a general common analysis of the Brandeis opinion in Erie is a law, Brandeis the reformer pinpointed the minor classic. It is not, I am pleased to report, abuses he believed had flowed from the case, the dry-as-dust parsing that often passes for although he did so in as neutral a tone as pos legal analysis. Rather, this writing and sible. The Four Horsemen had been severely thought draws upon a large number of criticized for writing their personal opinions sources, including hitherto unused Court pa into law; as passionately as Brandeis believed pers of the Justices, a keen professional un that Swift needed to be overruled, he tried very derstanding of the legal and constitutional is hard to avoid making it sound as if this were sues involved, and a sure grasp of the his agenda and not that of the Court. historical context in which Brandeis managed The heart of Brandeis's opinion, how to bring a majority over to his view. Instead of ever, lay in its constitutional, architecture. Be summarizing Purcell's argument, let me urge cause its greatest impact involved forum all of you to, first, go back and read the article shopping and choice of law issues, most com Purcell wrote in the last issue of this Jour mentators have focused on those aspects and nal,15 and then read his book. have ignored the constitutional arguments. I do, however, want to talk about the con- When Brandeis termed Swift an "unconstitu- 90 JOURNAL OF SUPREME COURT HISTORY

tional" decision, many people did not under so forcefully is that the constitutional argu stand what that meant; Purcell's book has a ment is not irrelevant: it is at the heart of the fascinating section on how law professors and decision. judges-especially, Felix Frankfurter-ig There is much more to the book, but nored Brandeis's constitutional argument be Purcell's rendering of what happened to Erie cause they did not understand it. What Purcell after the war, the role of Henry M. Hart, Jr., in does, and brilliantly, is explicate that argu defining federal court jurisdiction, and how ment, and in order to do that, he creates the subsequent Courts-including those of Earl entire context of constitutional development Warren, Warren Burger, and William H. that followed from Brewer's opinions in Kan Rehnquist-have used the case would require sas v. Colorado and In re Debs. a separate review. However, as can be seen To Brandeis, the Constitution set up not from these comments, Purcell's book is not only a separation of powers but a balance of only about Erie; it is also about the jurispru powers as well, and it was clear to him (as it is dential and historical events that shaped that to most modern scholars) that the Framers had case, as well as the results in the six decades intended that Congress should be the prime since Brandeis wrote it. Anyone interested in agency of government. This did not mean that federal court jurisdiction should read this Congress overshadowed or could dominate book; anyone interested in the Supreme Court the other two branches, but that, in the delega and how it interacts with the larger society tion of powers, the Framers intended Con must read it. gress to have the lion's share as well as the initiative in setting policy. While in some areas the Court's authority correlated to that of the other two branches, and while it ruled ENDNOTES supreme within its designated domain, it IEdward A. Purcell, Jr., Brandeis and the Progressive could never assume primacy within the gov Constitution: Erie, the Judicial Power, and the Poli ernment ahead of Congress. Building upon tics of the Federal Courts in Twentieth-Century America. New Haven, CT: Yale University Press, 2000. Story's opinion, Brewer had done just tha~; x + 417 pp. Hereafter Puree", Brandeis and the Pro the Court had extended its power to make it gressive Constitution. self the prime branch of government, against 2304 U.S. 64 (1938) the clear intentions of the Founders, as well as 3304 U.S. 92 (1938). the very wording of the Constitution itself. 4274 U.S . 357. 373 (1927). 17 Cr 32 (1812) Why, then, if this is such an important 616 Pet. I (1842). concept, did Brandeis's followers on the 7Black & White Taxicab Co. v. Brown & Yellow Taxicab Bench as well as his advocates in the academy Co. 276 U.S. 5 I 8 (1928) . miss the point? Part of the fault belongs to SId. at 408. Brandeis, who wrote what is for him an un 9Purcel', Brandeis and the Progressive Constitution. characteristically obtuse opinion, one in 39. t0209 U.S. 123 (1908). which he violated several of the laws of con II Purcell, Brandeis and the Progressive Constitution, stitutional adjudication he set out so clearly in 42-43. Ashwander v. TVA (1936).'6 Because the re 12206 U.S. 46 (1907) at 65. sults fulfilled Progressive aspirations, and be 13 158 U.S. 564 (1895) cause judges, in applying Erie, had to concern 14Purcell , Brandeis and the Progressive Constitution, 59. themselves with the practicalities of 15Edward A. Purcell, Jr. , "Brandeis, Erie, and the New choice-of-Iaw rules, people either ignored the Deal 'Constitutional Revolution, '" Journal of Supreme constitutional aspects or dismissed them as ir Court History 26, no. 3 (200 I): 257-278. relevant. What Purcell shows so clearly and 16297 U.S. 288 (1936). 91

Contributors

John B. Owens wrote this article after he and Marshall College. He regularly contrib clerked for Justice Ruth Bader Ginsburg dur utes "The Judicial Bookshelf' to the Journal. ing the October 1997 Term and while he was an Associate Attorney General at the De Melvin I. Urorsky is chairman of the Board partment of Justice and an Associate at of Editors of the Journal of Supreme Courl O ' Melveny & Myers. He is now a District At His/ory and Director of the Doctoral Program torney in South Central California. The ideas in Public Policy and Administration at Vir expressed in this article are the author's and ginia Commonwealth University. do not reflect the views of the Department of Justice. James Boyd White is the Hart Wright Profes sor of Law at the University of Michigan William H. Rehnquist is the Chief Justice of School of Law, and a Professor of English and the United States. He delivered this paper as Adjunct Professor of Classical Studies at the the Society's Annual Lecture on June 4,2001. University of Michigan. He delivered this paper as a lecture in the Supreme Court on D. Grier Stephenson, Jr. is the Charles A. December 13,2000. Dana Professor of Government at Franklin 92

Photo Credits

All photos courtesy of the Library of Congress except as Page 5, The Maryland Hi storical Society noted below: Page 17 and 27, Courtesy John B. Owens Page 18, The New York Times Page 3, Collection of the Supreme Court of the United Page 21 , Courtesy of Hogan & Hartson States Pages 48, 85,87,89, Corbis

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