Journal of Supreme Court History SUPREME COURT HISTORICAL SOCIETY

WARREN E. BURGER Chief Justice 1969-1986 Journal of Supreme Court History

PUBLICA TIONS COMMITTEE E. Barrett Prettyman, Jr. Chairman Donald B. Ayer Louis R. Cohen Charles Cooper

Kenneth S. Geller James J. Kilpatrick Melvin I. Urofsky

BOARD OF EDITORS Melvin I. U rofsky, Chairman

HennanBelz Craig Joyce David O'Brien David J. Bodenhamer Laura Kalman Michael Parrish Kermit Hall MaevaMarcus Philippa Strum

MANAGING EDITOR

Clare Cushman

CONSULTING EDITORS

Kathleen Shurtleff Patricia R. Evans

James J. Kilpatrick

Jennifer M. Lowe DavidT.Pride Supreme Court Historical Society

Board of Trustees

Honorary Chairman William H. Rehnquist

Honorary Trustees Harry A. Blackmun Byron R. White

Chairman President DwightD.Opperman Leon Silverman Vice Presidents Vincente. Burke,lr. Frank e. Jones Dorothy Tapper Goldman E. Barrett Prettyman, Jr.

Secretary Treasurer Virginia Warren Daly Sheldon S. Cohen

Trustees

George R. Adams KennethS. Geller Stephen W. Nealon Victor Battaglia FrankB. Gilbert Gordon O. Pehrson Helman Belz John D. Gordan III Leon Polsky Barbara A. Black Geoffreye. Hazard, Jr. Charles B. Renfrew HugoL. Black,lr. Judith Ri chards Hope Wi II iamB radford Reynolds Vera Brown Ruth lnsel John R. Ri sher, Jr. Wade Burger WilliamE. Jackson Harvey Ri shikof Patricia Dwinnell Butler Robb M. Jones WilliamP. Rogers Benjamin R. Ci viletti JamesJ. Kilpatrick Jonathan e. Rose Andrew M. Coats Peter A. Knowles Jerold S. Solovy William T. Coleman, Jr. Philip Allen Lacovara Kenneth Starr F. Elwood Davis Ralph l. Lancaster, Jr. Cathleen Douglas Stone George Didden III JeromeB. Libin Agnes N. Williams Charlton Dietz Maureen E. Mahoney W. Foster Wollen John T. Dolan Howard T. Markey Jamese.Duff Mrs. Thurgood Marshall Robert E. J uceam William Edlund Thurgood Marshall , Jr. General Counsel Johne.Elam Vincent L. McKusick JamesD.Ellis Francis J. McNamara, Jr. David T. Pride Thomas W. Evans Joseph R. Moderow Executive Director Wayne Fisher James W. Morris, III Kathleen Shurtleff CharlesO.Galvin John M. Nannes Assistant Director General Statement

TheSupreme Court Historical Society is a private non-profit organization, incorporated in the District of Columbia in 1974. The Society is dedicated to the collection and preservation of the history of the Supreme Court of the United States. The Society seeks to accomplish its mission by supporting historical research, collecting antiques and artifacts relating to the Court's history, and publishing books and other materials which increase public awareness of the Court's contribution to our nation's rich constitutional heritage. Since 1975, the Society has been publishing a Quarterly newsletter, distributed to its membership, which contains short historical pieces on the Court and articles detailing the Society's programs and activities. In 1976, the Society began publishing an annual collection of scholarly articles on the Court's history entitled the Yearbook, which was renamed the Journal of Supreme Court History in 1990 and became a semi-annual publication in 1996. The Society initiated the Documentary History of the Supreme Courtofthe United States, 1789-1800 in 1977 with a matching grant from the National Historical Publications and Records Commission (NHPRC). The Supreme Court became a cosponsor in 1979. Since that time the project has completed five of its expected eight volumes, with a sixth volume to be published in 1998. The Society also copubl ishes Equal Justice Under Law, a I 65-page illustrated history ofthe Court, in cooperation with the National Geographic Society. In 1986 the Society cosponsored the 300-pageIllustrated History ofthe Supreme Court of the United States. It sponsored the publication of the United States Supreme CourtIndex to Opinions in 1981, and funded a ten-year update of that volume that was published in 1994. The Society has also developed a collection of illustrated biographies of the Supreme Court Justices which was published in cooperation with Congressional Quarterly, Inc., in 1993. This 588 page book includes biographies of all 108 Supreme Court Justices and features numerous rare photographs and other illustrations. Now in its second edition, it is titled The Supreme Court Justices: Illustrated Biographies, 1789-1995. 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 substantially to the completion 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 mi Ilion 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 colloquia to further public understanding of the Court and its history. The Society ends 1998 with approximately 5,000 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 Executive Committee, the latter of which is principally responsible for policy decisions and for supervising the Society's permanent staff. R~quests for additional information should be directed to the Society's headquarters at 111 SecondStreet,N.E., Washington, D.C. 20002, Tel. (202) 543-0400, orto the Society's website at www.supremecourthistory.org.

he Society has been determined eligible to receive tax deductible gifts under Section 501 (c) (3) under lhelnternal Revenue Code. Journal of Supreme Court History 1998, Vol. II

Introduction Page Melvin I. Urofsky

Letter to the Editor Milton C. Handler

Articles

"Presenting the Case of the United States As It Should Be": The Solicitor General in Historical Context Seth P. Waxman 3

Constitutional Change in the United Kingdom: British Solutions to Universal Problems Alexander Andrew Mackay /niine 26

Supreme Court LawClerk, 1957-1958,A Reminiscence Alan C. Kohn 40

Wheaton v. Greenleaf A (Story) Tal e of Three Reporters Stephen R. McAllister 53

Race, Marriage, and the Supreme Court from Pace v. Alabama ( 1883) to Loving v. Virginia ( 1967) Peter Wallenstein 65

Antitrust and Baseball: Stealing Holmes Kevin D. McDonald 88

Justice Levi Woodbury: A Reputational Study William D. Bader, Roy M. Mersky 129

Beyond the Bottom Line: The Value of Judicial Biography Melvin I. Urofsky 143

Judicial Bookshelf D. Grier Stephenson, Jr. 157

Contributors 182

Photo Credits 183

Copyright 1998, by The Supreme Court Histori cal Society I 1 I Second Street, N.E. Was hington, D.C., 20002 ISBN 0-914785-17-6 Introduction Melvin I. Urofsky Chairman, Board of Editors

'fhis issue of the Journal of Supreme Court on the historic functions and role of his office, History is the last in the old format Starti ng in and the other by Lord Irvine, the Lord High 1999, the Journal will publish three times a year, Chancellor of England, on how constitutional providing our readers with a greater wealth of change in Great Britain operates. material on the history of the Supreme Court, Justices and cases are the meat and pota­ and scholars a larger venue in which to publish toes of Supreme Court history (with out indi­ their work, For this expansion we happily ac­ cating which is the meat), and here we have knowledge the response of our readers to the both. William Bader and Roy Mersky take a efforts we have made over the past few years stab at rehabilitating the reputation of Levi to upgrade the quality of the Journal, and to Woodbury, and the reader will draw his or her secure a broader variety of materials, Our goal own conclusion as to how successful they are. is to become the premier publication dealing In my piece, I suggest that judicial biography is with the history of the Supreme Court, and to a more important element of judicial history than make this publication part of the larger educa­ some scholars are willing to credit. tional mission which is the primary purpose of In terms of cases, we have both real deci­ the Supreme Court Historical Society, sions as well as ones that might have been. This issue showcases the large variety of After the exciting 1998 baseball season (yes, materials which we now get on a regular basis, scholars, lawyers and judges also follow the Two articles in an earlier issue on the landmark national pastime), we should recall that base­ case of Euclid v, Ambler Realty (1926) elicited ball is no stranger to the Court, and that one of a letter from Milton Handler recalling his expe­ the great exemptions to antitrust law was rience with that case as a clerk to Mr. Justice forged, not in Congress, but by the judiciary. Stone. We have another reminiscence, by Alan We can also see how the Justices handled one Kohn, of his year as a clerk, albeit a generation of the most delicate and explosive issues of the later. time, miscegenation, in Peter Wallenstein's ex­ Lectures, which often provide the basis for ploration of the Court's decisions from 1883 to our articles, contributed two important its landmark ruling in Loving v. Virginia (1967). one by the Solicitor General, Seth P. Waxman, And in a bit of whimsey based on history, Stephen McAllister looks at the politics involv­ Court. ing the old institution of Court Reporter. Thank you all, contributors and readers, for Finally, to remind us that both the quantity helping us to grow. We believe the Journal of and quality of writing on the Court's history Supreme Court History serves a useful and has expanded, Grier Stephenson, after recuper­ unique function, and all of us here are dedi­ ating from marrying off his daughter, wrote his cated to making that work a success. usual insightful study of recent works on the Letter to the Editor

Editor's Note: In the 1997 volume, second with Van Devanter, McReynolds and Butler issue, we carried two articles on the landmark dissenting, and Taft in the unusual role of as­ case ofVillage ofEuclid v, Ambler Realty Com­ sociating himself with the three liberal Justices. pany, 272 US 365 (1926), one by Garrett Sutherland was a facile writer and his opinion Power on the advocacy in the case, and the was quite impressive, other by Michael A, Wolf on the holding and Somehow or other, I met James its importance, One ofour longtime members Metzenbaum. I can't recall the precise circum­ and loyal readers, Professor Emeritus Ali/ton stances, but what I do recall was that he was a Handler, remembered the case well, and he "Nervous Nellie" and that I served as a "Fa­ wrote the following to the two authors, It is ther Confessor." What disturbed him was that reprinted here with Professor Handler s kind early in the week in which his case was sched­ permission, Sadly, he did not live to see his uled for hearing, a western lawyer, dressed in letter in print. Professor Handler passed away cowboy clothes, argued before the Court. Taft in November 1998. chastised him for his costume and said the Court rules required that counsel wear a vest. April 8, 1998 Apparently, the rest of his costume did not call for censure. Metzenbaum was wearing a five-button Gentlemen: jacket with a military cut. Not even an x-ray I read with the greatest interest the articles machine could discover that he was not wear­ which each of you wrote about The Vii/age of ing a vest. He took Taft's admonition quite Euclid v. Ambler Realty Co" decided by the seriously and debated whether or not he should Supreme Court in 1926. return to CI.eveland to pick up a vest or whether In the 1926 Term, I served as law clerk to he should buy one in one of Washington's de­ Justice Stone. The Euclid case was one of the partment stores. I reassured him that his black most interesting appeals that the Court handled suit with a jacket that covered his shirt would that Term. 1 started work in September 1926, fully satisfy the Court's sartorial requirements. and Sutherland's opinion in the Euclid case He kept after me, day and night, to be sure that came down in the fall of that year. This was a my advice was correct. I told him that I could period when the Lochner case dominated the not poll the Justices or initiate a conversation thinking of the Four Horsemen as well as of with Chief Justice Taft, but I was satisfied and Chief Justice Taft. I anticipated that the Four I sought to satisfy him that my advice was Horsemen plus Taft would hold municipal zon­ sound. In the course of these discussions, he ing unconstitutional. It came as a surprise when told me all about the loss of his wife and his Sutherland joined Holmes, Brandeis and Stone, visit to the cemetery three to four times a week. 2 JOURNAL 1998, VOL. 2

Having lost a very beloved wife recently, and ited time allotted to counsel for the presenta­ not having visited the cemetery since her burial, tion of his case. Baker was magnificent and, in I think now and thought then that this fussi­ my opinion, ranked with such extraordinary ness about visiting a grave was not the normal appellate counsel as John W. Davis, Charles reaction to the loss of a spouse. Evans Hughes when at the bar, Wild Bill I now come to the oral argument. To me, Donovan, and others enjoying the fame that a it was quite a disaster. Metzenbaum spent a skillful appellate advocate obtains through ex­ substantial part of his limited time in denounc­ perience. ing the trial judge who had been a partner of I rooted for the ultimate decision, which Newton D. Baker and was appointed to the came as a welcome surprise. It was very rare court through Baker's assistance, Baker then that Sutherland abandoned the others in the being Secretary of War in the Wilson Cabinet. Four Horseman group, and it was even rarer It was a total waste of time to attack the trial for Taft to abandon his cohorts. Then and now judge in an important case before the Supreme it seemed to me that if zoning were not per­ Court. I could never understand what he sought missible, virtually no legislation designed to to accomplish by this personal attack, the is­ advance the collective good could be sustained. sue in the case being the constitutionality of This is one of the rare occasions where the zoning. Whether or not the trial judge was in­ Court split as it did, with Taft and Sutherland fluenced by his relationship to Baker was really joining my boss, Brandeis, and Holmes. of no moment. The Court was not going to re­ I thought that this anecdotal epistle might verse on that ground alone and the importance be of interest to both of you and I send you my of the appeal was to get a determination on the warmest regard for the enjoyment I derived from legality of zoning. Having argued in my lifetime your articles. many appeals before the Supreme Court, state appellate courts and in virtually all of the Courts Sincerely, of Appeal of the various circuits, I know that this was poor advocacy and a waste of the lim- Milton Handler IIPresenting the Case of the United States As It Should Be": The Solicitor General in Historical Context

Seth P. Waxman*

Some sixty years ago, a letter found its way tant traditions of deference to all three branches. into the United States mail addressed simply, The Solicitor General is of course an Ex­ "The Celestial General, Washington, D.C." The ecutive Branch officer, reporting to the Attor­ Postmaster apparently had no trouble discern­ ney General, and ultimately to the President, in ing to whom it should be delivered. It went to whom our Constitution vests all of the Execu­ Robert H. Jackson, then Solicitor General of the tive power of the United States. Yet as the of­ United States. l ficer charged with, among other things, repre­ Now neither Justice Jackson nor any of senting the interests of the United States in the my other predecessors, I am sure, had preten­ Supreme Court, the Solicitor General has im­ sions of other-worldliness. But we have all been portant responsibilities to the other branches fortunate indeed to have been able to serve in of government as well. As a result, by long what Thurgood Marshall called "the best job tradition the Solicitor General has been ac­ I've ever had."2 For the office of Solicitor Gen­ corded a large degree of independence. eral of the United States is a wonderful and To the Congress, Solicitors General have unique creation. long assumed the responsibility, except in rare The Solicitor General is the only officer of instances, of defending the constitutionality the United States required by statute to be of enactments, so long as a defense can rea­ "learned in the law."3 He is one of only two sonably be made.5 With respect to the Supreme people (the other being the Vice President) with Court, the Solicitor General has often been called fonnal offices in two branches of government.4 "the Tenth Justice."6 But alas, although the And perhaps more than any other position in Solicitor General gets to participate in a great government, the Solicitor General has impor- many Supreme Court cases, he does not get a 4 JOURNAL 1998, VOL. 2

vote (although in some important cases he may courts and state courts, to decide when the feel that he could really use one). No, the So­ United States should appeal a case it has lost, licitor General's special relationship to the Court when it should file a brief amicus curiae, and is not one of privilege, but of duty-to respect when the United States should intervene to and honor the principle of stare decisis, to ex­ defend the constitutionality of an Act of Con­ ercise restraint in invoking the Court's jurisdic­ gress. Ultimately, it is the responsibility of the tion, and to be absolutely scrupulous in every Solicitor General to ensure that the United representation he makes. As one of my prede­ States speaks in court with a single voice-a cessors, Simon Sobeloff, once described the voice that speaks on behalf of the rule of law. mission of the office: How this position-this marvelous cre­ ation-came to be, and how it developed, is The Solicitor General is not a neutral, the subject of this lecture. But at best I will be he is an advocate; but an advocate only partially successful, for the Office has a for a client whose business is not long, rich history that, in many respects, is not merely to prevail in the instant case. well documented . Much of the collected his­ My client's chief business is not to tory consists of anecdotal accounts of discrete achieve victory, but to establish jus­ events and individuals8-and almost none of it tice.7 covers the origins and early development of So what does the Solicitor General do, and the Office. I propose to focus on three early how did the office come to be? As for the developments that shaped the Solicitor "what," for the past fifty years or so, the Solici­ General's authority over litigation on behalf of tor General has had two principal functions: to the United States. First, I will briefly discuss represent the United States in the Supreme the problems and historical forces that led to Court and, with respect to the lower federal the creation of the Office of Solicitor General

Simon E. Sobeloff was named Solicitor General in 1954 and served until 1956. He once described his function with these words: "The Solicitor General is not a neutral, he is an advocate; but an advocate for a client whose business is not merely to prevail in the instant case. My client's chief business is not to achieve victory, but to establish justice." THE SOLICITOR GENERAL 5 and the Department of Justice in 1870. Sec­ no assistance, but his salary was set at $1,500, ond, I will summarize the formative experi­ one-half the rate of the other Cabinet officers, ences of the early Solicitors General in con­ with the clear expectation that his would be a solidating control over government litigation. part-time job only and that he could more than And third, I will point out the important part make up the pay differential from his private played by the Supreme Court in securing this cl ients.12 As President Washington advised consolidation of authority. Edmund Randolph, seeking to persuade him to accept the position as the first Attorney Gen­ Early Experiences of the eral, while the salary was low, "the Station would Attorneys General confer pre-eminence on its possessor, and pro­ cure for him a decided preference of Profes­ The First Congress established four Cabi­ sional employment."13 In other words, being net positions to assist the President. With re­ Attorney General would be highly advanta­ spect to one of those four, the position of At­ geous to what we now know as "business de­ torney General, the Judiciary Act of 1789 pro­ velopment." vided: Experience soon provided Randolph with a more colorful description of his part-time sta­ tus. In 1790 he described himself as "a sort of [T]here shall ... be appointed a . . . mongrel between the State and U.S.; called an person, learned in the law, to act as officer of some rank under the latter, and yet attorney-general for the United thrust out to get a livelihood in the forrner."14 States, . . . whose duty it shall be to That description proved apt; indeed, in the cel­ prosecute and conduct all suits in the ebrated Hayburn:s Case, Randolph appeared Supreme Court in which the United in the Supreme Court acting on behalf of the States shall be concerned, and to give United Stales in his official capacity as Attor­ his advice and opinion upon questions ney General. IS When the Court declined to rec­ of law when required by the Presi­ ognize his pmticipation ex officio, Randolph dent of the United States, or when re­ simply switched hats and was allowed to pro­ quested by the heads of any of the de­ ceed as private counsel for William Hayburn.16 partments, touching any matters that It did not take Randolph long to recognize may concern their departments9 several deficiencies in the original structure of his office. In December 1791 he wrote a long Although given broad authority over the letter to President Washington protesting that legal affairs of the country, the Attorney Gen­ the current conditions made it impossible for eral-unlike his fellow Cabinet officers-did him properly to discharge his duties. He recom­ not preside over an executive department. mended that the Attorney General be autho­ Rather, the Judiciary Act of J 789 created only rized to represent the United States in the lower the Office of the Attorney General. There was courts, that he be given control and supervi­ no provision for a Department of Justice or sion of the district attorneys, and that he be even for subsidiary officers or clerical staff provided with at least one clerk to assist him in to assist the Attorney General in his duties. lO transcribing his opinions. 17 Although the Act also created United States Of particular significance given the cur­ district attorneys to conduct the government's rent duties of the Solicitor General, Randolph legal business in the lower courts, it did not described the need to supervise and coordi­ authorize the Attorney General to supervise nate the litigation of the government. From "the those legal officers. iJ want of a fixed relation between the attorneys Not only was the Attorney General given of the districts and the Attorney General," 6 JOURNAL 1998, VOl. 2

a bill was drafted to enact his su ggestions. But in what would become a distressing pattern for efforts to reform the government's legal work, Congress did not pass the bill despite favor­ able committee action. 19 Over the ensuing eight decades, incremental changes were en­ acted, but Congress consistently refused to re­ solve the larger structural concerns raised by Randolph and his successors?O The fai lu re of Congress to reform and co­ ordinate the government's legal business is rather puzzling, and apparently did not ret1ect any lack of interest or effort by the Executive. In 1814, for example, President Madison ech­ oed Attorney General Randolph's reform rec­ ommendations by urging Congress to extend the powers and duties of the Attorney Gen­ eral, to increase his salary to that of other Cabi­ net officers, to provide fitting office space, In 1854 Attorney General Caleb Cushing supplies, and support, and to give him control (below) wrote to President Franklin Pierce over the district attorneys; but to no avail. 21 (above) assuring him that as President he had the authority to consolidate control of In 1829 President Jackson made similar the government's litigation in the hands of recommendations, adding that the Attorney the Attorney General. Pierce forwarded the General should also have authority to super- letter to Congress, which took no action on the matter. Finally, Pierce was forced to issue an executive order. It was little heeded.

Randolph explained:

the United States may be deeply af­ fected by various proceedings in the inferior courts, which no appeal can rectify. The peculiar duty of the At­ torney General calls upon him to watch over these cases; ... [but] his best exertions can not be too often repeated, to oppose the danger of a schism. 18

Randolph therefore requested authority to su­ pervise the work of the district attorneys and to halIDonize cont1icting interpretations of law among them. President Washington immediately for­ warded Randolph's letter to Congress, where THE SOLICITOR GENERAL 7 vise and manage all suits involving revenue and the President may undoubtedly, in the other Treasury matters.22 Congress responded performance of his constitutional to President Jackson's message with a bill "to duty, instruct the Attorney General to fe-organize the establishment of the Attorney gi ve his direct personal attention to General, and erect it into an Executive Depart­ legal concerns of the United States ment" The bill proposed to make the Attor­ [in courts other than the Supreme ney General the head of the Law Department Court] when the interests of the Gov­ and authorized him to superintend all suits in ernment seem to the President to re­ which the United States was a party.23 quire this.29 Senator Daniel Webster, however, led the opposition to the bill. According to Webster, If the Attorney General could be directed per­ the measure would "tum [the Attorney Gen­ sonally to take over litigation, why would the eral] into a half accountant, a half lawyer, a half President lack authority to instruct him to su­ clerk-in fine, a half of every thing, and not pervise litigation conducted by other officers much of any thing."24 Rather, Webster argued, subordinate to the President? But instead of the Attorney General "should be engaged in issuing such an instruction, President Pierce studying his books oflaw," without distraction forwarded Cushing's letter to Congress with a from such minor matters as tax colJection.25 request for legislation.30 Only when Congress Webster, therefore, proposed a bill to create a failed to act did he issue an executive order Solicitor of the Treasury with authority over all attempting to consolidate a modicum of con­ Treasury suits and authOlity to provide rules trol in the Attorney General. But Pierce's order for the district attorneys to follow in to met with substantial resistance within the Ex­ all civil litigation in which the United States ecutive Branch itself and had little practical ef­ 16 was a party. Webster's bill was enacted. fect. 31 As an experienced advocate before the It may be that Presidents other than Pierce Supreme Court, Webster should have known did not feel themselves free to order their At­ better than to promote the further torneys General to supervise the legal work balkanization of the federal government's con­ of officers in other Departments because trol over its litigation. But the issue arose in by statute Congress had frequently, and per­ the context of a struggle by the National Re­ haps haphazardly, conferred authority to con­ publicans to find a suitable leader to succeed trol litigation in other federal officers. In John Quincy Adams, who had been swamped 1820, for example, Congress had authorized by Jackson in the 1828 election, and Webster an agent of the Comptroller of the Treasury to sought that mantle. The need to consolidate oversee the government's legal efforts to en­ control over the government's litigation may force tax and revenue laws-including the thus have fallen hostage to presidential ambi­ power to direct the district attorneys in those tionsY Other Presidents revived Jackson's re­ cases.32 Neither the Comptroller nor his agent quests, but Congress continued to show little were required to have had any legal training, interest.l8 and the agent was considered a relatively low­ Why, then, didn't the President simply is­ level accounting officer.33 Thus, Congress cre­ sue an executive order directing the Attorney ated the anomalous situation of subjecting the General to assume primacy over government district attorneys, at least in part, to the direc­ litigation? The President, after all, has plenary tion and control of a non-legal officer, while authority under Article II to ensure that the laws the chief legal officer of the government­ be "faithfully executed." In 1854 Attorney the Attorney General-had little or no author­ General Caleb Cushing told President Pierce ity over them at al1. 34 that 8 JOURNAL 1998, VOL. 2

As discussed, Congress superseded that legal services. Indeed, it was not uncommon arrangement in 1830 by creating the position for a single non-governmental attorney dur­ of Solicitor of the Treasury, with authority "to ing this period to receive a higher average an­ instruct the district attorneys ... in all matters nual income from the government than the and proceedings, appertaining to suits [in the Attorney General himself.44 All told, between district and circuit courts] in which the United 1864 and 1869 the United States spent well States is a party, or interested."35 With that pre­ over $700,000 procuring outside legal ser­ cedent, other department heads began clam­ vices.45 oring for their own legal staffs and control over their own litigation.36 In 1836 Congress The Birth of the Department of passed a law requiring district attorneys to Justice and the follow instructions of the auditor of the Post Office of Solicitor General Office DepartmentY By the eve of the Civil War, every major department had its own le­ By 1867 the size of these expenditures fo ­ gal officer. 38 cused Congress's attention once again on pro­ The exigencies of the Civil War laid bare posals for reforming how the government con­ the deficiencies of this uncoordinated legal ducted litigation on its own behalf. In Decem­ structure. In August 1861 Congress finally en­ ber of that year the Senate passed a resolution acted a law giving the Attorney General con­ requesting the Attorney General to provide in­ trol over the United States district attorneys formation and his views on the need for re­ and marshals.39 Yet much of the significance form .46 of th at refonTI was undermined when, four days Attorney General Henry Stanbery's reply later, Congress passed another Act providing is an important key to understanding the ori­ that the authority of the Solicitor of the Trea­ gins and development of the Solicitor sury was not to be affected.40 To complicate General 's Office. "As to the mere administra­ matters even further, Congress passed a law in tive business of the office [of the Attorney 1867 requiring the Commissioner of Internal General] the present force is sufficient," Revenue to establish regulations for the guid­ Stanbery declared, "but as to the proper duties ance of United States district attorneys.41 of the Attorney General, especially in the The law giving the Attorney General con­ preparation and argument of cases before the trol over the district attorneys also authorized Supreme Court. . . and the preparation of opin­ the Attorney General to retain outside coun­ ions on questions of law refeITed to him, some sel to assist the district attorneys. Due to the provision is absolutely necessary to enable him immense increase in Civil War-related gov­ properly to discharge his duties. After much ernment litigation, almost immediately the reflection," Stanbery proposed, "it seems to number of outside counsel retained to repre­ me that this want may best be supplied by the sent the United States exceeded the number appointment of a solicitor general. With such of all commissioned law officers in the fed­ an assistant, the necessity of employing spe­ eral government.42 In the six-year period be­ cial counsel in the argument of cases in the ginning in 1861, when Congress authorized the Supreme Court of the United States would be hiring of outside attorneys, the Attorney Gen­ in a great measure, if not altogether, dispensed eral paid nearly $50,000 for outside counsel with."47 Stanbery further added that he believed to assist in the preparation and argument of the various law officers of the other Depart­ government cases in the Supreme Court ments and the Court of Claims should be trans­ alone.43 In addition, the solicitors of the vari­ ferred to the Attorney General's Office "so ous departments and the district attorneys were that it may be made the law department of the spending ever-increasing amounts on outside government, and thereby secure uniformity of THE SOLICITOR GENERAL 9

Attorney General Hen ry Stanbery wrote a letter to the Senate in 1867 containing one of the first references in an American legislative docu­ ment to the term "Solicitor General." He was replying to questions about whether his office was sufficiently staffed, how much money had been spent on nongovernment attorneys to argue the government's cases before the Supreme Court, and whether all of the govern­ ment's lawyers should be brought under the direction of the Attorney General.

decision, of superintendence, and of official introduced a measure to establish a "depart­ responsi bi lity, "48 ment of justice," lenckes' proposal was re­ Stanbery's letter appears to contain one ferred not to the Judiciary Committee but to of the first references in an American legisla­ the Committee on Retrenchment, a joint body tive document to the term "Solicitor Gen­ of the two Houses charged with finding ways 53 eral. "49 And his vision of the duties of that po­ of reducing government expenditures. Thus, sition-to assist in the preparation and argu­ by 1868 three separate congressional com­ ment of Supreme Court cases and the prepa­ mittees were examining proposals to consoli­ ration of legal opinions for the Attorney Gen­ date and place under the direction of the At­ eral-tracks very closely with the actual work torney General the legal business of the gov­ of the early Solicitors General.50 Interestingly, ernment. 54 it also mirrors the very responsibilities given The House Judiciary Committee acted to the Attorney General himself in the 1789 first. On February 19, 1868, Representative Judiciary Act.51 Lawrence reported out his bill to establish a While the Senate Judiciary Committee kept "law department" that contained features ulti­ the subject under advisement without further mately enacted in 1870, including: the creation action, the House of Representatives was also of a department to handle legal affairs with the considering legal reform. Even before the Sen­ Attorney General at its head; a position of So­ ate had requested information, Representative licitor General to assist the Attorney General; William Lawrence of Ohio, Chairman of the the transfer to the new department of solici­ House Judiciary Committee, had directed a simi­ tors and assistant solicitors then in the other lar inquiry into the creation of a "law depart­ departments; a requirement that the Attorney ment" headed by the Attorney General and General approve all government legal opin­ composed of the various department solicitors ions; and a prohibition on the hiring of out­ and district attorneys.52 Shortly thereafter, Rep­ side counsel to represent the United States.55 resentative Thomas Jenckes of Rhode Island Before could act, however, the im- 10 JOURNAL 1998, VOl. 2

immediately overwhelmed the district attor­ neys, and Congress quickly restored that au­ thority.59 Finally, on February 25, 1870, Represen­ tative Jenckes reported from the Commjttee on Retrenchment a bill "to establish a Depart­ ment of Justice," which embodied the ideas of both Lawrence and Jenckes.60 Proponents of the bill emphasized the multiplicity of con­ flicting legal opinions given by the law offic­ ers in the several departments and the ever­ increasing expenditures for outside counsel­ what one Senator contemptuously referred to as "the sporadic system of paying fees to per­ sons . . . who may be called departmental fa­ peachment trial of President Johnson derailed vorites."61 Representative Jenckes explained Chairman Lawrence's bil1. 56 the overriding aim of this legislation as creat­ Congress did enact some piece-meal re­ ing "a unity of decision, a unity of jurispru­ fonns. In June 1868 it authorized the Attor­ dence .. . in the executive law of the United ney General to control all government litiga­ States," and it was for thi s purpose that the bill tion in the Court of Claims and provided two "propose[d] that all the law officers therein Assistant Attorneys General, together with ad­ provjded for shall be subordin ate to one ditional clerical staff, to assist him.57In March head."62 Of the new office of Solicitor Gen­ 1869, as a retrenchment measure, Congress eral, Representative Jenckes had this to say: repealed the authority of the Attorney Gen­ eral to employ outside counsel to aid the dis­ We propose to create . .. a new of­ trict attorneys.58 But the volume of litigation ficer, to be called the solicitor gen-

Representative William Lawrence of Ohio (right), chairman of the House Judiciary Committee, made inquiries in 1867 into creating a "law department" headed by the Attorney General and composed of district attorneys and solicitors from the various departments of government. Shortly thereafter, Representative Thomas Jenckes of Rhode Island (above), introduced a similar measure to the Committee of Retrenchment, a joint body of the House and Senate charged with reducing government spending. Jenckes' bill was signed into law in 1870, and created the Office of the Solicitor General. THE SOLICITOR GENERAL 11

eral of the United States, part of for the previous four years as United States dis­ whose duty it shall be to try these trict attorney for the district of Kentucky. Dur­ cases in whatever courts they may ing his tenure as district attorney, Bristow had arise. We propose to have a man of made a name for himself as one of the most sufficient learning, ability, and expe­ aggressive and successful prosecutors of Ku rience that he can be sent to New Or­ Klux Klan cases, obtaining twenty-nine con­ leans or to New York, or into any victions for various crimes under the civil rights court wherever the Government has acts, including a capital sentence for murder.67 any interest in litigation, and there The 1870 Act created extravagant expec­ present the case of the United States tations for the Office of Solicitor General. 6 as it should be presented. ) Was the Solicitor General to write the legal opinions, to handle the Supreme Court litiga­ tion, and to ride circuit, supervising the The bill was passed by both houses and government's most sensitive litigation? Was signed into law by President Grant on June 22, he to be the Attorney General's surrogate, sub­ 1870.64 Section 2 provided: stituting for him during his many absences? No one person could perform all those tasks. That there shall be in said Department And so it fell to Bristow and the new Attorney an officer learned in the law, to assist General, Amos T. Ackerman of Georgia, to de­ the Attorney-General in the perfor­ termine which duties would actually be per­ mance of his duties, to be called the formed by the Solicitor General and which solicitor-general, and who, in case of would not. a vacancy in the office of Attorney­ One of the early imperatives was to con­ General, or in his absence or disabil­ solidate: the Act of 1870, after all , was a re­ ity, shaJl have power to exercise all the trenchment measure. Which legal officers and duties of that office.65 their clerks from other Departments should be absorbed into the new Department of Jus­ Curiously, with the creation of the Office tice and which could be dispensed with? Ap­ of Solicitor General, the requirement originally parently, one particular clerk stood out. Con­ set out in the 1789 Judiciary Act-that the At­ gress had eliminated a position for a third­ torney General be "learned in the law"-was class clerk, and the Treasury Solicitor recom­ dispensed with, and no longer appears in the mended that "Mr. Walt Whitman is the clerk statutes.66 of this class who can be discharged with least detriment to the public service."68 Thus was one of this country's great creative spirits un­ The Early Solicitors General: bound from the demands of government ser­ Defining the Office vice.69 President Grant was serious about reform­ The new Solicitor General took little time ing the conduct of the government's legal busi­ in establishing primacy over the government's ness-particularly in the Reconstruction Supreme Court docket. As Bristow prepared South-and his first appointment as Solicitor for his first oral argument in United States v. General reflected that seriousness. In October Hodson,70 his former law partner John Marshall 1870 he nominated Benjamin Helm Bristow Harlan, still practicing in Kentucky, wrote that of Kentucky to be the first Solicitor General of this appointment would give him an opportu­ the United States. Bristow was a renowned law­ nity for "brilliant distinction."7] Another col­ yer, a loyal Republican, and an ardent propo­ league advised: "Look upward and onward nent of civil rights for blacks, who had served trusting to your God-to Justice and Right- 12 JOURNAL 1998, VOL. 2

Benjamin Bristow. a Republican from Kentucky. became the first Solicitor General in 1870. He had served for four years as United States district attorney from his state and had championed the civil rights of blacks by successfully prosecuting twenty-nine Ku Klux Klan cases. in your conflicts before finite judges and all mately seven cases were argued that Term by will be well."72 the Attorney General and/or the Assistant At­ Bristow was indeed a success in the Su­ torneys General without Bristow's participation. preme Court, and his presence quickly obvi­ The following year, Solicitor General Bristow ated the need to hire private attorneys to repre­ argued twenty-seven Supreme Court cases­ sent the United States in that Court. During seven alone, five with the Attorney General, the December 1869 Tenn, the last one with­ and fifteen with the Assistant Attorneys Gen­ out a Solicitor General, private counsel argued eral. 15 cases on behalf of the United States.73 Dur­ Bristow's successor, Samuel Field ing Bristow's first Tenn, they appeared in only Phillips of North Carolina, another accom­ two cases, and in his second Tenn, one. By the plished federal civil rights prosecutor,76 con­ third Term, the December 1872 Term, the tinued in that vein. During the 1873 Term, government's Supreme Court litigation was Phillips' first full Term as Solicitor General, being handled exclusively by its own attor­ he argued eighteen cases before the Supreme neys.74 Court--eleven solo and seven in conjunction Bristow did not take over completely, by with the Attorney General. During Phillips' re­ any means. Both the Attorney General and the markable twelve-year tenure as Solicitor Gen­ Assistant Attorneys General handled cases be­ eral-under four different Republican Presi­ fore the Court, and continued to do so for some dents and six Attorneys General-the number time.75 During the December 1870 Tenn, Solici­ of cases argued by Attorneys General de­ tor General Bristow presented arguments in thir­ clined.77 And Phillips' skill as an oral advo­ teen cases-three alone, five together with cate inspires us to this day. As a distinguished Attorney General Ackennan, and five others contemporary recalled: with Assistant Attorneys General. Approxi- THE SOLICITOR GENERAL 13

His habit was to discard the minor jf nothing had been done in its prepa­ points of a case, and address himself ration, and making voluminous notes to the great questions upon which and memoranda. But when he came [the Court's] decision ought to rest; to speak he would never make any fur­ and then he was so candid in stating ther use of these than the posture of the position of his opponents and the the case demanded; and if he thought facts appearing in the record, and so the case had been sufficiently argued lucid and strong in his argument, that by his would add but a few he commanded the entire confidence, remarks on one or two of the most as well as the respect, of the Court.7g vilal points. The judgment he thus showed in arguing the important questions and leaving the others In so doing, Phillips was again carrying alone, and never unnecessarily taking on a tradition set by Benjamin Bristow. As a up the time of the overworked judges, tract written about Bristow's life in connec­ was one reason why he was so great a tion with his much anticipated bid for the Re­ favorite with them, and was always pUblican presidential nomination in 1876 de­ listened to with respectful attention.79 scribed: What President Grant and his successors One marked characteristic of Mr. wanted in a Solicitor General-and what they Bristow's arguments was an absence got-were advocates of the first order. of all attempt at display. He The Solicitors General did not, however, thoroughly prepared himself, going completely fulfill one litigation function Con­ over every case in which he did not gress had contemplated--conducting impor­ make the brief, with as much care as tant government litigation around the country.gO

When the time came to decide which legal officers and their clerks should be moved to the new Department of Justice and which should be fired, a particularly notable third-class clerk, poet Walt Whitman, was singled out for termination. A few years earlier he had been recommended for termination on the ground that he lacked the requisite moral character for public service-as evidenced by the views he expressed in Leaves of Grass. At that time, supporters helped him obtain a job in the Attorney General's office. 14 JOURNAL 1998, VOL. 2

The early Solicitors General did participate in The responsibility to prepare legal opin­ some important matters in the lower courts. ions was likewise very demanding-to the One of Bristow's first assignments as Solici­ point that, by the 1930s Congress was required tor General, for example, was to monitor the to create a new Senate-confirmed position, district court trial in Ex parte Walton, in which Assistant Solicitor General (later renamed As­ twenty-eight persons were indicted under the sistant Attorney General for Legal Counsel), Enforcement Act8l for killing a Negro in Mon­ to handle it. 90 One interesting exercise of that roe County, Mississippi.82 The defendants had function focused on a burning issue of the early petitioned for a writ of habeas corpus, alleg­ twentieth century-the meaning of the term ing that they were being held illegally because "whisky." The Secretary of Agriculture had des­ the Enforcement Act exceeded Congress's au­ ignated certain products as "whisky," which thority under the Fourteenth Amendment.s3 made them subject to federal taxation. The dis­ When Bristow arrived in Oxford, Mississippi, tillers complained noisily-so much so that near the close of the trial, tensions were high President Taft, himself a former Solicitor Gen­ and order was being maintained by a full com­ eral, referred the issue to his own Solicitor pany of United States infantry and a cavalry General, Lloyd W. Bowers, for a legal opin­ brigade. 84 The case ended successfully, with ion. 9l Taft obviously felt that a matter of such the district court confirming (at least for the overriding importance could be entrusted only time being)85 that the Enforcement Act was a to an officer "learned in the law." After hear­ valid exercise of Congress's authority under ing testimony that fills 2,365 pages, "[a] volu­ the Fourteenth Amendment.86 minous mass of documentary evidence," and But overall, there were simply too many extensive briefs and argument by multiple other responsibilities for any Solicitor Gen­ counsel, Solicitor General Bowers entered a eral to be much of a circuit rider. In addition lengthy and detailed report on the meaning of to his Supreme Court responsibilities, the the term.92 Solicitor General was required both to substi­ Lest one think that perhaps this might not tute for the Attorney General in the latter's have been the most productive use of a Solici­ absence and also to issue legal opinions to the tor General's time, the story does not end there. President, the Attorney General, and the other When the distillers took exception to Bow­ department heads on a range of statutory and ers' conclusions, President Taft himself con­ constitutional issues, and to the United States ducted a hearing in the White House.93 Ironi­ district attorneys and marshals in particular cally, President Taft went even further than his casesY As to the former responsibility, the Solicitor General in adopting the broadest exigencies of Reconstruction politics often definition of '~ whisky" and directed that the required the Attorney General to travel for ex­ regulatory agencies use his construction of the tended periods from Washington, D.C. 88 And, applicable statutes.94 Thus do we learn an im­ as the era was also characterized by a rapid portant lesson that Solicitors General try to turnover in Attorneys General (recall that So­ impart to their client agencies: on appeal, licitor General Phillips served under six dif­ things can always get worse. ferent Attorneys General), the early Solicitors Returning to Benjamin Bristow, and most General frequently served as the Acting At­ relevant to the theme of this lecture, Bristow's torney General. 89 Attendance at Cabinet meet­ nonlitigation duties did not prevent him from ings and other functions required of the At­ devoting his attention to what is perhaps the torney General, and responsibility for all of most significant function performed by So­ the administrative duties of a Cabinet Secre­ licitors General to this day: determining and tary, occupied a very considerable portion of harmonizing the litigation position of the the time of the early Solicitors General. United States in courts across the country. THE SOLICITOR GENERAL 15

Bristow's successor, Samuel Field Phillips of North Carolina, had a background similar to Bristow's when he became the second Solicitor General in 1873. A renowned advocate before the Court, who served as Solicitor General for a record twelve years, Phillips' best-known case was his representation of Homer Plessy in Plessy v. Ferguson (1896), a-case. he argued after leaving the Solicitor General's office.

Bristow began the practice of reviewing each and independent authority to direct the district case in which the government received an ad­ attorneys in the handling of such cases.97 The verse decision in a lower court to determine Solicitor of the Treasury took the position that whether the case should be appealed. "If his the unrepealed laws protected his control over decision was to appeal," one early biographer Treasury Iitigation.98 Before long, the Solici­ of Bristow wrote, "it was his job to decide how tor of the Navy and the Examiner of Claims in best to defend the cause of the Government."95 the Department of State adopted similar posi­ Thus, some eighty years after Attorney Gen­ tions.99 eral Randolph first bemoaned the inability to Despite the Attorney General's vigorous coordinate the government's legal positions protests,100 Congress made no attempt to in the lower courts, a sustained and system­ clarify the issue and, in fact, took actions that atic attempt was finally made to supervise and further muddied the waters. In 1872 it created harmonize the government's appellate litiga­ legal positions in the Interior and Post Office tion. 96 Departments that were nominally called As­ But decades of bureaucratic inertia and sistant Attorneys General but that reported to institutional jealousy were not easily over­ the heads of those Departments. 101 Even worse, come. The greatest obstacle to effective con­ when Congress passed the Revised Statutes a solidation was the fact that, although the 1870 few years later, it reenacted, probably inadvert­ Department of Justice Act reflected an obvi­ ently, all of the old statutes giving duties and ous intent to centralize control over the authority to the solicitors of the other depart­ government's litigation in the Department of ments-further bolstering their assertions of Justice, Congress had failed to repeal its ear­ independence. 102 lier statutes creating the Jaw officers of the other departments and gi ving them allegiance The Supreme Court to the Rescue to their department heads. The Commissioner of Internal Revenue, for example, resisted the Fortunately, the seeming ambivalence of Attorney General's stl'pervision and asserted Congress was not shared by the Supreme Court, that, under his original statute, he still retained which played a key role in consolidating the unfettered control over internal revenue cases government's litigation. The Justices were no 16 JOURNAL 1998, VOL. 2 doubt frustrated indeed to be subjected to a grounds. First, Congress had vested supervi­ succession of attorneys who ostensibly spoke sory authority in the Attorney General over on behalf of the United States, but who took the government's litigation, and that authority inconsistent and ill-considered positions on in turn had been delegated to the Solicitor Gen­ questions of federal law. And when the Jus­ eral. And second, when Congress created the tices had opportunities to do something about office of Attorney General in 1789, it was pre­ it, they did. sumed to have been aware that the English In 1867 the Supreme Court held, in a case Attorney General possessed absolute con­ called The Gray Jacket, that where the United trol over governmental litigation, so the Court States appeared through the Attorney General assumed that Congress similarly intended to or his representative, no counsel could be heard confer that same authority on the American At­ taking a conflicting position on behalf of an­ torney General. Thus, under the Court's rea­ other department of the government. I03 Two soning, the Attorney General had-and had years later, in the Confiscation Cases, in an always had-supervisory authority over the opinion written by Justice Nathan Clifford, him­ government's litigation, even in the lower self a former Attorney General, the Supreme courts, unless a statute placed a specific duty Court expanded this rule and held that the At­ elsewhere. IDS torney General had control over-including the San Jacinto was in many ways the culmi­ power to dismiss-any action brought in the nation of an effort begun by Edmund Randolph name of, or for the benefit of, the United States in his 1791 letter to President Washington. in any court.I04 Likewise, in the 1878 case of After decades of legislative efforts by Presi­ United States v. Throckmorton, the Supreme dents and Attorneys General, the primacy of Court upheld the Attorney General's conten­ the Attorney General's authority over the con­ tion that a suit by the United States or any of duct of federal litigation-and the responsi­ its agencies to set aside a patent to land could bility of the Solicitor General to supervise that only be brought by or at the direction of the litigation-was largely secured. Attorney General. lOs Occasionally, even to this day, questions The capstone of this line of authol;ty was still arise-particularly with respect to rep­ United States v. San Jacinto Tin CO., I06 argued resentation of the so-called " independent" for the United States by Solicitor General George agencies of the United States. As times Jenks and decided in 1888. The Attorney Gen­ change, and new agencies are created, the dia­ eral had brought an action to set aside a land lectic between an independent agency's desire patent allegedly obtained by fraud, but the de­ to advance its mandate and the overriding need fendant argued that the Attorney General had for the government to speak with one voice no express authority, statutory or constitu­ continues-with understandable centrifugal tional, to commence a suit in the name of the tendencies on the agencies' part. On balance, United States to set aside a patent or other the Supreme Court appears to remain strongly solemn instrument. Echoing earlier positions convinced of the desirability of a centripetal taken by past Presidents and Attorneys Gen­ counterweight. Earlier this decade, for ex­ eral,107 the Court reasoned that authority over ample, in FEC v. NRA Political Victory Fund, such litigation must exist somewhere; that the Court held that the Federal Election Com­ some officer of the government must decide mission lacked authority independent of the what cases are appropriate for the government Solicitor General to petition for certiorari to bring; and that the appropriate officer is the even in actions brought under the very statute Attorney General, or h.is statutory delegate, the the FEC was created to administer. ,o9 Ulti­ Solicitor General. mately, of course, the power to allocate liti­ The Court based that holding on two gating authority belongs to Congress and the THE SOLICITOR GENERAL 17

President. Still, particularly given the modern devote enough time to review the opinions, inclination to create Executive Branch agen­ form followed function and the position was cies that are "independent" of the President, it restyled Assistant Attorney General, where it is wise to remember the very substantial ben­ remains today.I)1 The situation that provoked efits in retaining approval authority central­ this transfer was perhaps best epitomized in ized in the Solicitor General-so that when the front-page article of The New York Times the United States speaks, it is with a voice that on December I I, 1935, recounting Solicitor has considered, and reflects, the interests of General Stanley F. Reed's physical collapse the whole United States. from exhaustion during the second day of his oral argument before the Supreme Court in de­ Conclusion fense of successive pieces of New Deal leg­ islation. 112 In the nearly thirteen decades since the Since the early 1950s, relief from non­ Office of the Solicitor General was created, litigation res ponsibilities has left modern­ its core litigation functions have largely re­ day Solicitors General free to concentrate on mained the same. During October Term 1997, the "interest of the United States" with respect for example, the Solicitor General handled ap­ to litigation. That concept is elusive, and it is proximately 2,800 cases before the Supreme often difficult to discern just what position the Court. The Office filed thirty petitions for a interest of the United States supports. But so writ of certiorari and participated in oral ar­ long as Solicitors General apply the principle gument in seventy-five percent of the cases best articulated by my predecessor Frederick the Court heard on the merits. During that Lehmann-that "[t]he United States wins its same one-year period, the Solicitor General point whenever justice is done its citizens in decided whether to authorize appeal or to ap­ the courts"ll3- and so long as Solicitors Gen­ pear as an intervenor or amicus curiae in over eral maintain fidelity to the rule of law, it will 2,300 cases, covering subjects as varied as the continue to be true, as Francis Biddle wrote activities of the government he represents. following his tenure in the Office, that "[t]he The nonIitigation duties of the early So­ Solicitor General has no master to serve ex­ licitors General are largely gone-and that ab­ cept his country." 114 sence may be, after all, one of the principal charms of the position. Since creation of the Endnotes office of Deputy Attorney General in 1953, the * This article is the printed version ofa lecture Solicitor General has largely been relieved of delivered at the Supreme Court Historical the administrative and policy functions he ear­ Society's Annual Meeting on June 1, 1998. The li er performed. 110 The other non litigation re­ author gratefully acknowledges the assistance sponsibility of the early Solicitors General­ of David B. Salmons, a Bristow Fellow in the writing legal opinions for the President and Office of the Solicitor General during October C. the other Departments-was assigned else­ Term 1997, and David Frederick, an Assistant to the Solicitor General. where even earlier. By the 1930s, the press of litigation-particularly in the Supreme Coult-had pushed the opinion-writing func­ I Eugene C. Gerhart, America's Advocate: Robert H. Jack­ son 143 ( 1958); Lincoln Caplan, The Tenth Justice: The tion of the Solicitor General to the very back Solicitor General and the Rule of Law 171 ( 1987). burner. In 1933 Congress created a new posi­ 2 Caplan, supra note I. at 261. tion, Assistant Solicitor General, to assume 3 Act of June 22. 1870, ch . 150. § 2. 16 Stat. 162. principal responsibility for preparation of le­ 4 In addition to bi s offices in the Department of J us­ gal opinions, but after several years in which ti ce. the Solicitor General has a working office in the Su­ the Solicitor General himself was unable to preme Court building, located on the main floor in close 18 JOURNAL 1998, VOL. 2

proximity to the courtroom. Cummings & McFarland, supra note 10, at 19 & n.37; > See, e.g., 8 Op. Off. legaL Counsel 183, 193-99 (1984); 40 Easby-Smith, Edmund Randolph, supra note 10, at419.

Op. Att'y Gen. 158 (1942); 39 Op. Att'y Gen. II (1937); 14 Easby-Smith, Edmund Randolph, supra note 10, at420; 38 Op. Att'y Gen. 252 (1935); 38 Op. All' y Gen. 136 Henry Barrett Learned, The President's Cabinet 159 (1934); 36 Op. Att'y Gen. 21 (1929); 31 Op. Atl'y Gen. (19/2); Rex E. Lee, "Lawyering in the Supreme Court: 475,476 (1919). The Role of the Solicitor General," 21 Loy. L.A . L. Rev.

6 See Caplan, supra note I, at 3. 1059,1061 (1988). 15 7 Simon E. Sobeloff, "Attorney for the Government: 2 U.S. (2 Dall.) 409 (1792). At issue was the constitution­ The Work of the Solicitor General's Office," 41 A.B.A. ality of the Invalid Pensions Act of 1792, which required J. 229, 229 (Mar. 1955). the circuit courts to receive the applications of invalid vet­ 8 Among the more comprehensive analyses are Caplan, erans of the Revolutionary War and to certify to the Secre­ supra note I; "Symposium: The Role and Function of tary of War their opinions on the appLications. Many of the the United States Solicitor General," 21 Loy. L.A. L. circuit judges and justices believed the act to be unconsti­ Rev. 1047 (1988); and Rebecca Mae Salokar, The So­ tutionaL because it conferred upon the courts a nonjudicial licitor General: The Politics of Law (1992). function. v,'hen the application of William Hayburn, an

9 Act of Sept. 24, 1789, ch. 20, § 35, I Stat. 73, 93. invalid veteran, came before a panel of judges in Pennsyl­ That the Attorney General's first enumerated duty has vania composed of Justices WiLson and Blair and District always been to represent the United States in the Supreme Judge Peters, the judges refused to take any action. For a Court underscores the Attorney General's close connec­ thorough treatment of Hayburn s Case and its subsequent, tion with Article III courts. This connection becomes even if not misguided, impact on the Court, see Maeva Marcus more pronounced when one considers that in the original & Robert Teir, "Hay burn's Case: A Misinterpretation of bill of the Judiciary Act introduced in the Senate, the Precedent," L988 Wis. L. Rev. 527.

Attorney General was to be appointed by the Supreme 16 See I The Documentary History of the Supreme Court, and the district attorneys by the district courts, rather Court of the United States, 1789·1800206 (Maeva than by the President. See 4 The Documentary History of Marcus & James R. Perry eds. , 1985). After hearing the Supreme Court ofthe United States, 1789·1800 106- Randolph's argument in his capacity as Hayburn's coun­ 07 (Maeva Marcus & James R. Perry eds., 1992); Charles sel, the Court concluded it . would hold the motion un­ Warren , New Light on the History of the Federal Judiciary der advisement until the next Term-by which time, it Act of 1789, 37 Harv. L. Rev. 49, 108-09 (1924). For a discus­ turned out, Congress had revised the underlying stat­ sion of the brief legislative history regarding the change, ute, making resolution of the case unnecessary. Id. ; 2 see Susan L. Bloch, '"The Early Role of the Attorney Gen­ U.S. (2 Dall .) at 409-10. eral in Our Constitutional Scheme: In the Beginning There 17 Letter from Edmund Randolph to George Washing­ was Pragmatism," L989 Duke L.J. 561,570-72 & n.33. ton (Dec. 28, 1791), reprinted in I American State

10 As a result, all of the Attorney General's opinions, let­ Papers (Misc.) 45-46 (1834); see Easby-Smith, Edmund ters, and briefs had to be written out in hi s own hand, or by Randolph, supra note 10, at 424-25; Key, supra note 10, at staff provided at his own expense. See Homer Cummings & 176.

Carl McFarland, Federal Justice: Chapters in the History 18 American State Papers, supra note l7, at 45-46; of Justice and the Federal Executive, 154-58 (1937); Janles see 2 Annals of Congo 1765-66 (1791); Easby-Smith, S. Easby-Smith, "Edmund Randolph-Trail Blazer," 12 J. Edmund Randolph, supra note 10, at 425. Bar Ass '/I D. C. 415,419 (1945) (hereinafter cited as Easby­ 19 See Report from ~ep. Lawrence (Jan. 18, 1792), reprinted Smith, Edmund Randolph); SeweU Key, 'The Legal Work of in I American State Papers (misc.) 46 (1834); 3 Annals of the Federal Government,"25 Va. L. Rev. 165,175-76(1938). Congo 329-31 (1792); see also Bloch, supra note 9, at 585- Moreover, because Congress had not even thought it nec­ 89; Easby-Smith, Edmund Randolph, supra note 10, at 425: essary to provide the Attorney General with office space, Key. supra note 10, at 176-79. for years the Attorney General served as an absentee, com­ 20 Indeed, twenty-seven years passed before Congress. in ing to the seat of government only when called on specific 1818. finally gave the Attorney General a clerk and made business. See James S. Easby-Smith, The Department of some provision for office space. See Act of Apr. 20. 1818. Justice: Its History and Functions 8 (1904) (hereinafter ch. 87 , § 6. 3 Stal. 445, 447. The following year, Congress cited as Easby-Smith, Department of Justice). provided a small contingent fund of $500 for such essen­

II Act of Sept. 24, 1789, ch. 20, § 35, I Stal. 73,92-93. tials as stationery. fuel, and "a boy to attend the menial 12Id.; see Cummings & McFarland, supra note 10, at 19; duties." Se e Act of Mar. 3, 1819. ch. 54. 3 Stal. 496, 500; Easby-Smith, Department of Justice, supra note 10, at 5. Cummings & McFarland. supra note 10, at 80-81 . ISS-56;

13 Letter from George Washington to Edmund Randolph Easby-Smith, Department of Justice. supra note lO. at 10. (Sept. 28, 1789), reprinted in 30 Writings of George It took sixty-two years before the Attorney General's sal­ Washington 418-19 (John C. Fitzpatrick ed., 1939); see ary was made comparable to those of other Cabinet offic- THE SOLICITOR GENERAL 19

ers, see Act of Mar. 3, 1853, ch. 97, § 4, 10 Stat. 189, 212; 10, at 152,218.

Easby-Smith, Department of Justice, supra note 10, at 15, 32 Act of May 15, 1820, ch. 107, § 1,3 Stat. 592, 592. Prior to and seventy years before Congress gave the Attorney Gen­ this time, the power to institute such suits had been lodged eral supervision and control over the district attorneys, see in the Comptroller of the Treasury, see Act of Mar. 3, 1797, Act of Aug. 2, 1861, ch. 37, 12 Stat. 285, 285-86; ch. 20, §§ 1,3, 1 Stat. 512, 514-15; see also Key, supra Cummings & McFarland, supra note 10, at 142,218,491; note 10, at 177. Bloch, supra note 9, at 618-20. 336 Cong. Deb. 322-24; Key, supra note 10, at 177. A simi­

21 See I A Compilation of the Messages and Papers of lar situation arose in the Post Office Department. In rec­ the Presidents, 1789-1897577-78 (James D. Richardson ommending the bill to create the Department of Justice in ed., 1897). 1870, Representative Will iam Lawrence of Ohio lamented

22 2 A Compilation of the Messages and Papers of that "[t]he Auditor of the Post Office Department, in charge the Presidents, 1789-1897 453-54 (James D. of the prosecution of mill I depredations-immense in num­ Richardson ed., 1897). ber and importance as they are-and controlling them

23 6 Cong. Deb. 276, 276 (1830). throughout the country, is merely a fourth-class clerk. He " Id. For a discussion of Jackson's proposal, and gives opinions and directions, and has compiled and pub­ Webster's successful opposition, see Key, supra note lished the Post Office laws without the aid of or the accu­ 10, at 177-79; Cummings & McFarland, supra note racy to be secured by the profounder attainments and riper 10, at 144-46. skill of the Attorney General." Cong. Globe, 41st Cong.,

25 6 Cong. Deb. 276, 277. 2d Sess., 3038 (1870).

26 Act of May 29, 1830, ch. 153,4 Stat. 414, 414. 34 See Key, supra note 10, at 177. The amount of Although President Jackson signed Webster's bill in to litigation directed by the agent was significant. By law, he nonetheless remained unsatisfied with the struc­ 1828 he was overseeing more than 3,000 pending cases. ture of the government's legal work. In his second See lOp. Att'y Gen. 694 (1824); Cummings & McFarland, annual message to Congress, he stated, "I am convinced supra note 10, at 144. Needless to say, th is situation was in that the public interest would be greatly promoted by giv­ need of reform. See Jd.; Key, supra note 10, at 177. ing [the Attorney General] the general superintendence of It is not entirely fair to say that Congress did nothing the various law agents of the Government, and of all law in the face of frequent requests by the Executive to reform proceedings, whether civil orcriminal, in which the United and consolidate the legal work of the government in the States may be interested." 2 A Compilation of the Mes­ decades prior to the Civil War. As early as 1824, the Attor­ sages and Papers of the Presidents 1789-1897 500, 527 ney General was given control over litigation involving (James D. Richardson ed. (897). land claims arising out of the Louisiana Purchase, and he n On Webster and Adams, see generally Samuel Flagg was charged with instructing the district attorneys in such Bemis, John Quincy Adams and the Union 150- litigation and wi th deciding which adverse district court 51,155-57,289-90,311 (1956). rulings to appeaL Act of May 26, 1824, ch. 173, § 9, 4 Stat. 'B For example, in his first annual message on December 2, 52,55; 6 Op. Att'y Gen., supra note 29, at 337. In 1852 1845, President James Polk called attention to the need to Congress gave the Attorney General supervisory author­ place the Attorney General on the same footing as the ity over a large body of suits dealing with land claims in heads of the executive departments. 4 A Compilation ofthe California and directed the Attorney General to review the Messages and Papers of tile Presidents, 1789-1897 385 transcripts of cases decided by the corrunission charged (James D. Richardson ed. 1897); see also Cummings & with adjudicating the claims to determine which cases McFarland, supra note 10, at 147-48; Key, supra note 10, at should be appealed to the district courts and to the Su­ 180. Shortly thereafter bills were introduced in both the preme Court. See Act of Mar. 3, 1851, ch. 41,9 Stat. 631; Act House and Senate, the latter under the sponsorship of of Aug. 31,1852,ch. 108, § 12, 10 Stat. 76, 99. Describing former Attorney General John M. Berrien, to implement those responsibilities to the President and to Congress, Polk's proposals. Most notably, the bills would have made Attorney General Cushing stated in 1854 that "[tJhis branch it the duty of the Solicitor of the Treasury "to act in subor­ of business ... involves responsible present relations to, dination to the Attorney General. " Opposition arose and, and ultimate management of, a large number of suits of the as with previous proposals, the bill was tabled. Cummings highest importance and interest, and therefore constitutes & McFarland, supra note 10, at 148 (citing Cong. Globe, one of the most onerous of the present occupations of the XV613,873,881, 1130-31, I 134(1845)). Attorney GeneraL" 6 Op. Att'y Gen., supra note 29, at 338. 2960p. Att'yGen. 326, 335 (1854). And in 1853 Congress finally set the salary of the Attorney

30 See H.R. Exec. Doc. No. 95, 33d Cong., 1st Sess. General on a par with that of the heads of the executive (1854). departments. Act of Mar. 3, 1853, ch. 97, § 4, 10 Stat. 189,

11 See Exec. Order No. 1855-17-2(July 16, I 855)(Orderof 212; see also Easby-Smith, Department of Justice, supra President Pierce); Cummings & McFarland, supra note note 10, at 15. 20 JOURNAL 1998, VOL. 2

JS Act of May 29, 1830, ch. 153, § 5. 4 Stat. 414,415. See dollars annually for extra-official fees to counsel." !d. at supra note 26 and accompanyi ng text. 3065. 36 See Cummings & McFarland, supra note 10, at 220- " Among other things, the Senate wanted to know 22. Key, supra note 10. at 179. whether the staff of the Attorney General's Office was

37 Act of July 2. 1836, ch. 270, § 16.5 Stat. 80, 83. sufficient; what amounts had been spent securing nongov­

J8 By the outbreak of the Civil War, the law officers of the ernmental attorneys to represent the govemment's inter­ United States, other than the district attorneys, were the ests in the Supreme Court and for similar counsel to assist Attorney General, the Solicitor of the Treasury, the Solici­ the district attorneys; and whether the solicitors and law torof the Court of Claims, and the Assistant Attorney Gen­ clerks in the various departments and the Court of Claims eral. Soon would be added the Solicitor and Naval Judge could be di spensed with and their duties placed under the Advocate General, Solicitor for the War Department, Post direction of the Attorney General, "so as to bring all the Office Solicitor, Assistant Solicitor for the Treasury, So­ law officers of the Govemment under one head, with sav­ licitor of Internal Revenue, and Solicitor for the Depart­ ing of expense and benefit to the public service." Congo ment of State. See Congo Globe, 41 st Cong., 2d Sess .. 3035 Globe , 40lh Cong., 2d Sess., 196 (1867); see also (1870); Cummings & McFarland, supra note 10. at 221- Cummings & McFarland. supra note 10. at 222. 22. 4' S. Exec. Doc. No. 40-13, at 2 (1867 ).

19 Act of Aug. 2, 1861 , ch. 37, 12 Stat. 285. 4. !d.

'0 Act of Aug. 6, 1861, ch. 65 , 12 Stat. 327; see also Act of 4. As is the case of the Attorney General, the position Mar.3, 1863, ch. 76, § 13. 12 Stat. 737, 741 ; see Cummings & is of English origin. Sir William Holdsworth explai ns McFarland, supra note 10, at 218-19. that by 1509 the position of the King's solicitor was 4'ActofMar.2.1867,ch.169.§3,14Stat.471,471-72. well entrenched. 6 A History of English Law 462- " Congo Globe, 41st Cong., 2d Sess .. 3035 (1870). Repre­ 63 (1924). Like hi s counterpart in private practice, sentative Lawrence of Ohio. one of the original sponsors the King's solicitor was inferior to the King's attorney of the 1870 Department of Justice Act, explained the growth and served as a general assistant to the attorney in the in the expenditures for outside counsel as follows: handling of the King's legal bu siness. {d. at 463, 469- 70. Indeed, beginning in 1530, it became the custom Under various laws, and sometimes, perhaps, on the change of law officers to make the King's so­ without any very definite law, a practice has licitor the King's attorney. {d. al 463. By the seven­ grown up largely since 1860 of giving em­ teenth century, the Kin g's attorney and solicitor were ployment to counsel for the Government in the only officials authorized to initiate legal proceed­ almost every conceivable capacity and under ings on behalf of the Crown, and they were given a great variety of circumstances-to counsel direction over the King's lesser law officers. {d. at who are not officers of the Government, nor 47 1-73 . They also became important political , as well amenable as such. Under appropriations for as legal, counselors to the crown, but the basic role of collecting the revenues, and other general the King's solicitor-to assist the King's attorney in purposes, very large fees have been paid for fulfilling hi s important legal responsibilities-has re­ services which could have been performed by mained unchanged. !d. proper law officers al much less ex pense. so See infra notes 70-92 and accompanying text. 51 See supra notes 9- 18 and accompanying text. !d. at 3038 " Congo Globe, 40th Cong., 2d Sess., 153 (1867).

4J H.R. Exec. Doc. No. 40-198. at 3-4 (1868). Notably, the 53 Congo Globe, 40th Cong., 2d Sess., 934 (1868). average annual expenditure for outside counsel in Supreme "See id. at 196,934, 1116, 127 I -73, 1633, 1860.2480 (1868); Court cases during this period was greater than the $7,500 Congo Globe, 41 st Cong., 2d Sess., 3035 ( 1870). For a gen­ annual income originally set for the Solicitor General. eral description of these legislative efforts, see Cummings See ActofJune22, 1870, ch . 150,§ 10, 16 Stat. 162. 163. & McFarland, supra note 10, at 223.

44 See COllg. Globe, 41 st Cong., 2d Sess., 3038 ( 1870). 5S Congo Globe. 40th Cong., 2d Sess .• 1271-73 (1868). 4' !d. at 3035. The obvious pote nti al for waste and '6 See Cummings & McFarland. supra note 10. at 223. abuse in this system caused Representative Lawrence 57 Act of June 25.1868. eh. 71 . § 5. 15 Stat. 75,75-76. to describe the bill to create the Department of Justice ,. Act of Mar. 3, 1869. c h. 121. 15 Stat. 283, 294. as "a measure of economy" des igned to "reduce ex­ 59 See Cummings & McFarland. supra note 10, at 224. penditures for legal services to th e Government and 60 Congo Globe. 41st Cong .. 2d Sess .. 1568 (1870). put an end to a system which might be perverted to pur­ Although Lawrence disagreed with certain minor as­ poses of favoritism." !d. at 3038. Indeed, Representative pects of the bill-for example, he preferred calling the Lawrence predicted that the 1870 Act would "save the un­ new departmenl the "law department"- he gave it hi s full necessary expenditure of more than one hundred thousand support. See id. at 3039. THE SOLICITOR GENERAL 21

61 /d. at 4490. Kentucky repealed the testimonial bar in January 1872, 62 Id. at 3036. shortly before the Supreme Court handed down its deci­

63 Id. at 3035. Jenckes further explained that "[o]ne of sion in Blyew. See Goldstein, supra at 563; Ross A. Webb, the objects of this bill is to establish a staff of law officers Benjamin Helm Bristow: Border State Politician 82-85 sufficiently numerous and of sufficient ability to transact (1969). Some modicum of justice was eventually imposed this law business of the Government in all parts of the on the culprits. Kennard was convicted of the murders in United States." Id. state court in 1876 and sentenced to life imprisonment. He

64 Act of June 22, 1870, ch. 150, 16 Stat. 162. The served approximately nine years in prison before being Office of the Solicitor General of the United States pardoned by the governor on the ground of poor health. and the Department of Justice came into formal exist­ See Goldstein, supra, at 564 n.358. Blyew's first trial, in ence on July I of that year. Id, § 19, 16 Stat. at 165. 1873, resulted in a hung jury. He escaped before he could 65 Id. § 2, 16 Stal. at 162. be retried and remained free for seventeen years, until he

66 See id. § I, 16 Stat. at 162; Rev. Stat. §§ 346, 347 was found and convicted of the murders in 1890. Although (1878); 28 U.S.c. § 503 (1994); see al.so Charles Fahy, sentenced to life imprisonment, Blyew served less than six "The Office of the Solicitor General," 28 A.B.A. J. 20, years in prison before receiving a pardon from the Demo­ 22 (1942). cratic acting governor of Kentucky, who expressed doubts

61 III Dictionary of American Biography 55 (1929). about the evidence used to convict Blyew. See id. at 563- One case from Bristow's days as district attorney is of 66. particular note. In the fall of 1869, Bristow secured 68 Letter from Secretary Wilson to Attorney General the murder convictions of two white men, John Blyew Williams (June 30, 1874), quoted in Cummings & and George Kennard, for the brutal murder of a black McFarland, supra note 10, at 228 n.27. Whitman had fami Iy. Bristow brought the case in federal court under actually been in poor health for some time and for at a section of the Civil Rights Act of 1866, Act of Apr. least a year prior to his discharge had employed a 9, 1866, ch, 31, § 3, 14 Stat. at 27, which gave federal substitute to fulfill his duties to the Department. See courts jurisdiction over "all causes, civil and criminal, generally George Rice Carpenter, Walt Whitman affecting persons who are denied or cannot enforce in 116-138 (1924). the courts or judicial tribunals of the State. . where 69 On June 30, 1874, Attorney General George H. Wil­ they may be," any of the rights granted by the act, liams wrote Whitman that hi s service would be termi­ including the rights to "give evidence" and to have nated as of July 1, 1874, although shortly thereafter "full and equal benefit of all laws and proceedings for the Attorney General granted Whitman two months' the security of person and property, as is enjoyed by pay, which was customary in such circumstances. See white citizens." Id. § I, 14 Stat. at 27. Bristow brought Gay Wilson Allen, The Solitary Singer: A Critical the murder charges in federal court because all of the Biography of Walt Whitman, 461 (1967). This witnesses to the murder were black, and Kentucky law was not the first time Whitman was faced with dis­ prohibited blacks from testifying against white defen­ charge from public employment. In May 1865 Presi­ dants. See Robert D. Goldstein, "Blyew: Variations on dent Andrew Johnson's newly appointed Secretary of a Jurisdictional Theme," 41 Stan. L. Rev. 469 (J 989). the Interior, James Harlan, issued a circular to the The defendants were found guilty of murder and bureau heads in the department asking them to report sentenced to death. They appealed to the Supreme on the "loyalty" of each of the employees under him, Court, arguing that the district court lacked jurisdic­ and also "whether there are any whose fidelity to duty tion over what was in essence a state murder trial. When or moral character is such as to justify an immediate dis­ the Supreme Court took up their claim, Benjamin Bristow, pensation of their services." Id. at 344 (quoting a New York now the newly appointed Solicitor General, together with Herald article dated May 31, 1865). Word apparently got Attorney General Amos T. Ackerman, presented the case back to Harlan of Whitman's authorship of Leaves of Grass, for the government. The Supreme Court held that the so­ which was by then in its third edition. Harlan, a devout called "affecting jurisdiction" of the act only applied to Methodist from Iowa, apparently concluded that Whitman cases in which the affected persons were the actual parties failed his test for "moral character" and abruptly sent to the case. Blyew v. United Siales, 80 U.S. (13 Wall.) 581 , Whitman a notice dated June 30, 1865, informing him that 594 (1872). This excluded the impact on the black witnesses, hi s services would be "dispensed with from and after this mostly surviving family members, and it also excluded the date." Id. at 345. With the aid of William O'Connor, a promi­ victims, since "[mJanifestly the act refers to persons in nent Washingtonian and loyal supporter of Whitman, and existence." Id. at594. Thus, the Court held that the district Assistant Attorney General J. Hubley Ashton, it was ar­ court lacked jurisdiction and vacated the convictions. ranged instead for Whitman to be transferred to a position Bristow's efforts, however, were not entirely in vain. as a clerk in the Attorney General's Office. The entire epi­ Due in part to Bristow's tenacity in pursuing the issue, sode received moderate press coverage, with one paper 22 JOURNAL 1998, VOL. 2

wryly commenting that Whitman "now occupies a desk in Wendell Holmes Devise: History of the Supreme Court the Attorney General's office, where we suppose they are of the United States, 21-24, 35, 504-05 (1987); Webb, not so particular about morals." Id. at 347 (quoting July 12, supra note 67, at 128,131,267-73.

1865, editorial in the Eagle). 80 See supra text accompanying note 63,

70 77 U.S. (10 WaiL) 395 ( 1870). 81 Act of May 31, 1870,ch. 114, 16 Stat. 140,

71 Letter from John M . Harlan to Bristow (Nov. 16, 81 See Webb, supra note 67, at 88; James Wilford 1870), quoted in Webb, supra note 67, at 74. Garner, Reconstruction in Mississippi. 351-352 n Letter from W.A. Meriwether to Bristow (Nov. 18, (I 90 I)

1870), quoted in Webb, supra note 67, at 74. Justice 8J Because of the constitutional issues presented, a se­ Noah Swayne's opinion for the Court accepted the lect committee created by Congress to investigate abuses new Solicitor General's position that ignorance can of the Ku Klux Klan, the Joint Select Committee to never be the basis of a legal right in its entirety. See Inquire into the Condition of Affairs in the Late Insur­ Hodson, 77 U.S . (10 Wall .) at 409. rectionary States, would later desc ribe the case as "[tJhe

7J These figures are derived from the counsel notations first important trial in the United States under the in the early published cases, and are less than conclu­ enforcement act," S. Rep. No, 42-41, at 936 (1872), sive because special counsel for the government were and the Committee included the entirety of the trial apparently not consistently designated. See Lee, su­ transcript, minus argument by counsel, in its report, pra note 14, at 1065 & n.20. See id, at 936-87,

74 See Lee, supra note 14, at 1066. 84 See Webb, supra note 67, at 88; Cummings &

75 Indeed, it was not until the 19205 that the Solicitor McFarland, supra note 10, at 235-36 .

General 's name began appearing on all of the • 5 The Supreme Court later struck down portions of government's briefs to the Supreme Court. See id. the Enforcement Act in United Slates v. Reese, 92

76 Phillips served as Assistant District Attorney in 1871 U.S. 214 ( 1876), and narrowly construed other por­ and 1872 at Raleigh, North Carolina, During this time, tions of the Act in United Slates v. Cruikshank, 92 he oversaw the prosecution of several important Klan U.S. 542 (1876). Both cases were argued for the gov­ cases, See "R.H. Battle, Obituary of Samuel Field ernment by Solicitor General Phillips and Attorney Phillips, LL.D.," I N.C.J.L 22, 27 (1904); see also General Williams.

Robert D. Miller, "Samuel Field Phillips: The Odyssey 86 Webb, supra note 67, at 88; Garner, supra note 82, of a Southern Dissenter," 58 N.c. Hist. Rev. 263, 275 at 351-52. Despite such victories, Klan convictions (1981 ) were difficult to obtain. Between the problems of packed

77 From a search of WESTLAW's database, for ex­ juries and perjured testimony, the district attorneys ample, in 1873 Attorney General Williams appears to complained of their inability to secure convictions, have participated in ten oral arguments; however, in despite the numerous indictments they fi led. See id, ; none of these did he argue solo. Attorney General H.R. Exec. Doc. No. 42-268, at 30-41 ( 1872), Bristow Charles Devens, who held office between 1877 and wrote to another district attorney facing similar chal ­ 1881, participated in nine arguments during his entire lenges: "The higher the social standing and character tenure. And Attorney General Benjamin H. Brewster, of the convicted party, the more important is a vigor­ who served between 1881 and 1885, when both he and ous prosecution and prompt execution of judgment." Phillips resigned, appears to have argued only two Letter from Bristow to D.H, Starbuck (Oct. 2, 1871), cases as Attorney General. Subsequent Attorneys Gen­ quoted in Webb, supra note 67, at 92; see also Cummings eral were often more involved in Supreme Court matters. & McFarland, supra note 10, at 237, 7' Battle, supra note 76, at 26-27. Phillips is perhaps best 87 Section 4 of the 1870 Department of Justice Act known for an argument that he presented after leaving the provided: Solicitor General's Office. In 1896 he helped represent Homer Plessy in Pless), v, Ferguson, 163 U.S. 537 (1896). Interest­ That questions of law submitted to the Attor­ ingly, the only vote Phillips got in Pless), was from Justice ney-General for hi s opinion, except questions John Man;hall Harlan, Benjamin Bristow's fonmer Kentucky involving a construction of the Constitution . law partner. . . may be by him referred to such of his subor­

79 Some Facts about the Life and Public Services dinates as he may deem appropriate, . , ,and if of Benjamin Helm Bristow of Kentucky 21-22 the opinion given by such officer shall be ap­ (1876), Bristow Papers, Library of Congress. In fact, proved by the Attorney-General, such ap­ Bristow served the Supreme Court with such distinc­ proval so indorsed thereon shall give the opin­ tion that his name was often mentioned to fill the ion the same force and effect as belong to the vacancy of Associate or Chief Ju stice. See Charles Fainman, opinions of the AtlOrney-General. Reconstruction and Reunion, 1864-68; 7 The Oliver THE SOLICITOR GENERAL 23

Act of June 22,1870, ch. 150, § 4,16 Slat. 162,162. The the Post-Office Department in post-office cases; by the Attorneys General, particularly during Solicitor General Commissioner of Customs in custom cases; by the Com­ Phillips's tenure, increasingly took advantage of this pro­ missioner of Pensions in pension cases; by the Commis­ vision to assign opinion-writing responsibilities to the So­ sioner of Indian Affairs in cases relating to Indians; and so licitorGeneraL See, e.g., 15 Op. Att'y Gen. 49 1-665 (1875- on." !d.

1878); 14 Op. Att'y Gen. 585-684 (1872-1874); 13 Op. 9S Id. at 6 ("It was probably the purpose of Congress An 'y Gen. 572-73 (1870), 588-9 1 (1871); see also Webb, that the distribution of business in the Department of supra note 67, at 73-74. Justice should be made by the Attorney General in his " As Bristow's biograpby reflects, drawing upon his let­ discretion, but the laws, mostly of long Slanding, wh ich ters during the period, Attorney General Ackerman's fre­ impose specific duties upon the Solicitor of the Trea­ quent and long absences from the Capital placed a consid­ sury, interfere with such discretionary distribution.") erable weight on the Solicitor General. See Webb, supra 1872 AIf'y Gen. Ann. Rep. 16. After reminding Con­ note 67, at 86, 90, 92, 94. gress that the Department of Justice Act had trans­

89 See, e.g., 17 Op. Att'y Gen. 240-50 (1881); 15 Op. ferred the Solicitor of the Treasury, the Solicitor of AlI'y Gen. 28-35, 106-09 (1875-J876); 13 Op. Au'y Internal Revenue, the Naval Solicitor, and the exam­ Gen. 440-66 (1871). iner of claims in the Department of State to the Jus­ See Act of June 16, 1933, ch. 101, § 16, 48 Stat. tice Department, Attorney General Will iams com­ 283, 307-08; Reorg. Plan No.2 of 1950, §§ 3, 4, 64 plained that "the act implies, and is so construed by Stat. 1261, 1261. the heads of the different Departments, that their

91 Proceedings Before and By Direction of the Presi­ duties are to be the same as they were before the trans­ dent Concerning the Meaning of the Term "Whisky" fer was made, and that their practical relations to the 1243-60 (1909) (report of Solicitor General Bowers). Departments to wh ich they were attached before said ld. at 1244. act was passed remained unchanged." Id. He concluded 93 ld. at 1265-1325 (hearing before President Taft on that "[wJhile these officers are nominally subjected to distillers' exceptions to Solicitor General Bowers' re­ the control of this Department, they are attached to port). Also present at President Taft's hearing was the and exclusively perfonn duties assigned to them by the Attorney General, George W. Wickersham, and the heads of other Departments. Obviously, this is an ar­ Secretary of Agriculture, James Wilson. Before hear­ rangement which not only creates a divided jurisdic­ ing argument on the distillers' exceptions, President tion, but produces confusion in the transaction of the Taft noted the novelty of such a proceeding, stating public business." !d. that "1 want to say that it is not usual for the Presi­ 100 See 1871 All) Gell. Atm. Rep. 5-6; 1872 AIl'y Gell. dent, I think, to give hearings of this sort." ld. at Ann. Rep, 16. Attorney General Williams in 1872 1266. secured the introduction into the House of a bill to put ., See Nancy Y. Baker, Connicting Loyalties: Law an end to the remaining divisions of authority in his and PoJitics in the Attorney General's Office, department and strongly urged passage of the measure 1789-1990 14 (1992); Cummings and McFarland, su­ in his annual reports to Congress in 1872 and 1873, pra note 10, at 513. see 1872 AII'y Get!, Ann. Rep. 16; 873 Ann Rep, Webb, supra note 67, at 74. Unfortunately, we have Au'y Gen, 18, but to no avail. not been able to locate in the National Archives the origi­ 10, Act of June 8, J 872, ch. 335, § 3,17 Stat. 283, 284; 1872 nal sources on which Webb relied for that statement. All) Gen Ann. Rep. 16.

96 Although the Attorney General was given formal super­ 102 See Key, supra note 10, at 185. Those statutory visory authority over the district attorneys as early as 1861, impediments to creating a unified legal apparatus were the press of the Attorney General's other work, the inad­ exacerbated by Congress's failure to provide adequate equacy of his budget and staff, and confusion over the quarters for the new Department of Justice. In his overlapping authority of the Solicitor of the Treasury and annual report to Congress, less than six months after other departmental officers made it impossible for the At­ the creation of the Department, Attorney General torney General to exert control over the district attorneys Ackerman complained that "the offices of this De­ in all but the most important of cases. See Cummjngs & partment are dispersed in five buildings, some of them McFarland, supra nOte to, at 219-20. at a considerable distance from the others." 1870 AII'y 9' 1871 All 'y Gen. Ann. Rep. 5 .. [n requesting that Congress Gen. Ann. Rep. L The departmental solicitors were "destroy the exception which is now supposed to exist in left in their old offices in close proximity to their internal revenue cases," Attorney General Ackerman, quite department heads, with whom they continued their accurately it turned out, warned that "[tJhe theory upon prior allegiances with little or no regard for the consolida­ which such control is retained, if consistently applied, tion Congress envisioned in the Department of Justice Act. would make district attorneys controllable by an officer of Even the Attorney General and the Solicitor General did 24 JOURNAL 1998, VOL. 2

not share the same office building. Attorney General Office in the early I 930s, he was called upon to draft opin­ Ackerman warned that "[u]ntil a building sufficient for all ions for the Attorney General on important subjects with of them shall be provided, the purpose of Congress to little or no oversight by the Sol icitor General , who was too bring under one direction all the law officers of the Execu­ busy with the press of Supreme Court litigation to review ti ve Departments wi II not be thoroughly accomplished." the drafts. ld. The following year showed some improvements. Because of the number and significance of these The officers of the Justice Department not previously opinions of the Attorney General, and related affiliated with other executive departments all moved matters, I became concerned. It seemed to me into three floors of the Freedman's Savings Bank build­ that the work was both adequate in volume ing on Pennsylvania Avenue at Fifteenth Street, where and of such importance that it should not be they remained until 1899. But these offices, too, were handled by a young lawyer in the Solicitor less than ideal. The space was crowded, there was often General's office. In particular, 1 felt that these no heat , and the sewer beneath the building caused foul drafts of opinions, and other policy matters, air to permeate the building, especially in hot weather. should be the responsibility of an officer ap­ See 1871 AII'y Gen. Ann. Rep. 4 ; Cummings & pointed by the President a fter confirmation McFarland, supra note 10, at 228. And because of a by the Senate. Since it was clear that the So­ shortage of space, the department solicitors were again licitor General did not have time available to left in their former locations. By the time of his 187 J handle these matters himself, I recommended report to Congress, "[t]he want of sufficient accom­ that a new office should be established, and modations in one building," together with the intransi­ that the new officer should have the title of gence o f the solicitors, had forced Attorney General Assistant Solicitor General, nominated by the Ackerman to lower hi s expectations. I 87 I All 'y Gen. President, and confirmed by the Senate. Such Ann. Rep. 5. "As long as this physical difficulty pre­ a statute was enacted. vented th e literal execution of the law," Ackerman wrote, "it was thought unwise to put other Depart­ Erwin N. Griswold, Ould Fields, New Corne: The ments to inconvenience by disturbing the practical Personal Memoirs of a Twentieth Century Law­ relations previous ly existing between these officers yer 101 (1992). and the heads of those Departments. But an effort has 112 "Reed in Collapse; AAA Cases Halted," The New been made by frequent conference to approach as near York Times, Dec. 11 , 1935, at I, 9. The article begins as possible to the execution of the intention of Con­ with the heading "Federal Pleader is Taken III in Midst gress, expressed in the law." 1871 AII 'y Gen. Ann. Rep. of New Hail of Questions by Judges" and describes the 4. [d. incident as follows: 103 72 U.S. (5 Wall.) 370 (1867).

104 74 U.S. (7 Wall.) 454 (1869) Bringing to a dramatic halt the second 105 98 U.S . 61 (1878). day of argument in the Supreme Court on the 106 125 U.S. 273 (1888). constitutionality of the Agricultural Adjust­

107 Indeed, there are marked parallels between the ment Act and the Bankhead Cotton Control Court's reasoning in Sail Jacinto Till and Attorney Gen­ Law, Solicitor General Stanley Reed faltered this eral Randolph's arguments in Hayburn S Case, For a dis­ afternoon andsat down, physically unable to con­ cussion of Randolph's arguments, see Marcus & Teir, su­ tinue. pra note 15, at535-41 ; Cummings & McFarland. supra note His collapse as he defended the Bankhead 10, at27-28. act was in the midst of a barrage of technical lOS San Jacinto, 125 U,S. at 278-88. questions from the nine judges ...

109 513 U.S. 88 (1994). liD See Reorg. Plan NO . 4 of 1953, § 1, 3 C.F.R. 1026 [d. at I. The article explains that as Reed attempted to (1949-1953), reprinted in 67 Stat. 636, codified as argue "that the case was a non-adversary one and that amended at 28 U.S.c. § 508 (1994). there was nothing in the record to show opposition

III See Act of June 16, 1933, § 1648 Stat. 283, 307- between the plaintiff and the defendant or an effort to 08; Reorg. Plan No. 2 of 1950, §§ 3, 4, 3 C.F.R. 1002, tryout the iss ue[,] .. raj hail of questions followed 1003 (1949-1953), reprinted in 5 U.S.c. app. at 1468 from Justices Hughes, M cReynolds, Butler, Van (1994), and in 64 Stat. 1261, 1261; see also supra Devanter and Roberts, all asking Mr. Reed why he note 90 and accompanying text. In his memoirs, former So­ alleged the record to be non-adversary when both sides li citorGeneral Erwin Griswold describes hi s surprise in dis­ said that it was not and whether the contention was based covering that, as a young attorney in the Solicitor General 's on both sides stipulating certain allegations." ld. at 9. As THE SOLICITOR GEI\lERAl 25

Reed struggled with this "nest of questions," Chief Justice litigation during this period placed immense pressure on Hughes, broke "in one crisp sentence" declared that the office and no doubt left little or no room for the Solicitor "[tJhe court does not desire to hear you further on that General's nonlitigation-related duties. As the The New York point." /d. Times put it, "Court officers and representatives of the De­ Then, as Reed began to make an additional point about partment of Justice explained that the Solicitor General the record and was again faced with a barrage of hosti le was suffering from extreme weakness caused by the strain questions from the Justices, he "immediately paled and of the major cases he had prepared and argued." Jd. said in a low voice: 'j must beg the court's indulgence, but III Lehmann's poignant words have been inscribed on the I am too ill to proceed further. '" Jd. Reed's face, we are wall of the Attorney General's rotunda in the United States told, "was ashen and he showed signs of utter exhaustion." Department of Justice building. See Brady v. Maryland, [d. at I. 373 U.S. 83, 87 n.2 (l963)(quoting Solicitor General Simon Of course, the repeated prospect of defending New Sobeloff, in turn paraphrasing Lehmann); James L. Cooper, Deal legislation before the Hughes Court may have "The Solicitor General and the Evolution of Activism," 65 been enough to make any advocate feel faint. But the Ind. LJ 675,676 n,8 (1990); Caplan, supra note I, at 17, magnitude of the Solicitor General's Supreme Coun 114 Francis Biddle, In Brief Authority 98 (1962). Constitutional Change in the United Kingdom: British Solutions to Universal Problems

Alexander Andrew Mackay Irvine

Universal Problems Chief Justice Charles Evans Hughes famous!: remarked that "[t]he Constitution is whateve All legal systems have to confront the way the judges say it is." More recently it has beeJ individuals and governments interrelate. In said that "the obverse is true as well: if th, countries that maintain democracy and uphold judges are not prepared to speak for it, a con the rule of law, attachment to these fundamen­ stitution is nothing." I can assure you that OJ tal values must find expression in the constitu­ our side of the Atlantic we are well aware tha tional framework that regulates the relationship Marbury v. Madison is not merely of historic a between the individual and the state. The significance. We know that the Supreme COllI United States of America stands as a preemi­ has in the last few months reaffirmed that th. nent example of a society that has striven to Constitution is superior and paramount la\\ order its constitutional arrangements in this whose protections cannot be impaired by shift way. My theme is the importance of securing ing legislative majorities. It is this commitmen this objective by means sensitive to national to the Constitution that explains, more than an: political and legal cultures. other factor, the ample protections that nO\ In the United States this task was begun inhere in the relationship between the Unite. by those who came together, over 200 years States' institutions of government and Ameri ago, in Philadelphia, to draft the text of the Con­ can citizens. stitution. However, the Framers of the Consti­ The incidents of that relationship, dictate, tution must share the credit for its success with by the demands of democracy and the rule 0 the way it has been interpreted and applied by law, are numerous. Foremost must be the pro the Supreme Court of the United States. Former tection of fundamental rights; the accountabil BRITISH SOLUTIONS 27 ity of, and public participation in, the govern­ Similarly, there exists broad recognition that mental process; and an ethos of open govern­ it is necessary to dismantle the culture of se­ ment that acknowledges that true democracy crecy that has so often enveloped government. is incompatible with an unthinking culture of In 1982, Australia, Canada and New Zealand institutional secrecy. all moved to enact legislation to create public That these objectives are pursued in the rights of access to official information. United States is apparent beyond doubt. The human rights guarantees in the federal and state British Solutions Constitutions; the federal structure itself that locates government closer to the governed; It is a strong ambition to fashion solutions and the freedom of information legislation that to these fundamental problems that underlies has been adopted both at national and state lev­ the constitutional changes we are now carry­ els demonstrate, in the clearest terms, a con­ ing into effect in the United Kingdom. Since cern to imbue relationships between citizen its election to office, just over twelve months and state with characteristics based firmly on ago, the new British Government has embarked democracy and the rule of law. on a comprehensive program of constitutional The pursuit of these goals is not, of renewal as a major political priority. My cen­ course, the exclusive preserve of the United tral point this evening is that, although the im­ States. In the sphere of human rights, many petus for these reforms is a set of problems transnational agreements demonstrate inter­ universal in character, the solutions being national recognition of the high value given to adopted in the United Kingdom are, of neces­ respect for fundamental rights. The Universal sity, tailored to the particular needs of the Brit­ Declaration of Human Rights is a distinctive ish constitution. Let me try to substantiate this example, in this, the year of its fiftieth anni­ argument by reference to the Government's versary. The International Charter on Civi I and proposals to enhance human rights protection Political Rights, and the European Convention in the United Kingdom. I begin, however, by on Human Rights, are important, too, as is the offering two other examples that illustrate my legal system of the European Union. In its thesis. short history it has developed its own doctrine I have already spoken of the way in which of fundamental rights. National legal orders federal arrangements-as those of the United also increasingly recognize the need to uphold States-promote governmental accountability human rights. This is witnessed by the adop­ and public participation in the governmental tion of the Canadian Charter of Rights and process by locating that process closer to the Freedoms in 1982 and the New Zealand Bill people. The same objective informs the United of Rights Act in 1990, as well as by the asser­ Kingdom Government's proposals to create tion by the Australian High Court of a juris­ devolved legislatures in Scotland and Wales­ diction to review primary legislation that in­ proposals approved by referendums in those terferes with basic rights. countries last summer. Similarly our plans for As with human rights, so too with the other a strategic authority for London, led by an necessary ingredients of a proper relationship elected mayor, were approved by Londoners between the individual and the state. Through as recently as May 7, 1998, that demonstrates their federal arrangements, many legal systems the continuing support for our constitutional enhance the accountability of and public par­ reforms. In the longer term, if there is a local ticipation in the business of government. The demand for it, we propose to devolve power to importance of this policy is also recognized the English Regions. And a central element of in the legal order of the European Union, find­ the peace agreement, recently reached in North­ ing expression in the principle of subsidiary. ern Ireland, will be a local Assembly, substan- 28 JOURNAL 1998, VOL 2

tially a hybrid of the Scottish and Welsh pat­ have competence to infringe fundamental terns of devolution, which will also be put to a rights. fn contrast to the Scottish Parliament, referendum later this month. however, the Welsh Assembly will have no At present, all primary legislative power power to enact primary legislation; rather, it resides in the Westminster Parliament. Scot­ will serve an executive function, exercising the land and Wales are administered by executive executive powers previously exercised by the departments that are accountable to that Par­ Secretary of State for Wales, so providing a liament. Following referendums in 1997, the more transparent and democratic framework Government is promoting legislation to create for the government of Wales. a Scottish Parliament and a Welsh Assembly Only by adopting this pragmatic approach whose members will be directly elected by the has it been possible to fashion a devolution people of Scotland and Wales. In tum, these scheme appropriate to the special circum­ arrangements will provide a more democratic stances of each part of the United Kingdom. framework for the government of those parts The same point can be made about free­ of the Union. dom of information. Before publishing its pro­ I know that the British are often accused posals, the Government considered the regimes of not understanding what "federalism" means, that operate in other countries-the United perhaps something as elusive as British theo­ States, Canada, Australia, and New Zealand. ries of Parliamentary sovereignty. However, I Although this eomparative analysis was illumi­ do not think our constitutional reform program nating, it was appreciated that a unique ap­ heralds a federal structure for the United King­ proach would be needed in the UK, to take ac­ dom in the United States sense. Although a count of the particular circumstances of the strictly federal approach has been adopted suc­ British legal system. For instance, there pres­ cessfully in many countries, it would not be ently exists in Britain a nonstatutory freedom right for Britain. The needs of the various parts of information regime (much weaker than the of the Union differ. It is the diversity of the new statutory framework that is being con­ countries that make up the United Kingdom structed). No other country, in developing statu­ that constitutes one of its greatest strengths. tory rights of access to official information, has This is reflected in the system of devolution had to do so against this kind of background. It that is planned. Rather than imposing a pure has also been necessary to consider all the federal structure on the UK as a whole, varying many existing statutory provisions giving rights degrees and types of power will be devolved to of access to personal information, as well as different parts ofthe Union in light oftheir needs those that restrict disclosure of official infor­ and desires. It is for this reason that the reform mation on, for example, national security packages planned for Scotland and Wales are grounds. fundamentally different. The Scottish legal sys­ So, the development of the new freedom tem is already substantially independent of that of information system illustrates that, although of England and Wales. This tradition will be the United Kingdom legal order is highly re­ built upon by the new Scottish Parliament, that ceptive to fresh ideas through processes of will have the power to pursue a distinctive leg­ cross-fertilization-we have recognized that ul­ islative agenda for Scotland over an extensive timately we must respond to universal prob­ range, including the law, economic develop­ lems by cultivating domestic solutions suitable ment, industrial assistance, universities, train­ to national conditions, rather than simply trans­ ing, transport, the police, and the prosecution planting approaches favoured elsewhere. system. However, in spite of this broad compe­ Nowhere is this plainer than in the area of tence, fundamental human rights are "ring human rights protection. fenced." The new Scottish Parliament will not BRITISH SOLUTIONS 29

Alexander Andrew Mackay Irvine is the Lord High a--.ceIlor of Great Britain and a member of the Cabinet who, asa peer, sits in the House of Lords. His title, Lord Irvine of Lairg, is taken from the village in Lairg in Scotland where many of his forebears were born.

Protecting Fundamental European legislation and the indigenous doc­ Rights trine of fundamental rights developed by the Community Court. Introduction: The Problem and the Solution Although they lack any comprehensive human rights jurisdiction, the contribution of It is well known that the United Kingdom the British courts has been central to the pro­ today is without a systematic human rights re­ tection of individuals' rights in the United gime. So the protections of human rights in Kingdom. In limited areas, the judges have Britain today are the fmit of a number of dif­ been able to develop common law rights to ferent legislative and judicial initiatives. safeguard against legislative and executive In certain contexts, Parliament has encroachment, relying on basic postulates of stepped in to provide a statutory framework a democracy under the rule oflaw, for example, for the protection of human rights, sometimes the existence of courts and the necessity of borrowing ideas from elsewhere. For example, access to justice. More generally, the courts British legislation on gender and race equal­ have considerably enhanced their powers of ity was modelled on State antidiscrimination judicial review in recent decades. They have legislation, introduced in the aftermath of the begun to scrutinize a broader range of Second World War, starting with the State of decisionmaking powers, holding that all gov­ New York, followed closely by Massachusetts ernmental functions are in principle amenable and then Pennsylvania. The law of the Euro­ to review, irrespective of the legal source of pean Union also plays an important part in the the power in question. Also, the courts have field of human rights both in terms of trans- dispensed with a range of technical fetters that 30 JOURNAL 1998, VOl. 2

previously limited their jurisdiction, for ex­ first time, provide the United Kingdom with a ample by relaxing the standing requirements modern charter of fundamental rights, en­ and boldly resisting occasional legislative at­ forceable in national courts. The rights that the tempts to curtail judicial scrutiny of execu­ Bill enshrines are those defined by the Euro­ tive action. Although the British courts are pean Convention on Human Rjghts. Mecha­ constrained by the doctrine of Parliamentary nisms will be established that aim to ensure sovereignty from reviewing primary legisla­ the compatibility of new legislation with these tion itself, their supervisory powers neverthe­ rights. The courts will be directed to interpret less contribute substantially to human rights all legislation as being consistent with the Con­ protection in two key ways. First, by impos­ vention so far as is possible, and, where this is ing requirements of fairness and rationality on truly interpretively impossible, the higher public decisionmakers,judicial review ensures courts will be given a unique competence to that individuals are not subjected to arbitrary declare a provision of an Act of Parliament treatment by those entrusted with governmen­ incompatible with the Convention. Moreover, tal power. Secondly, the courts subject execu­ public authorities will be placed under an en­ tive action that impacts on fundamental rights tirely new obligation to act in a way that does to particularly thoroughgoing scrutiny. not violate human rights. Notwithstanding these advances, United Not only will the Human Rights Bill sub­ Kingdom law is undoubtedly deficient. Let me stantially enhance the protection and profile of outline some of the main problems. First, Brit­ fundamental rights in Britain, it will also resolve ish law possesses no statute that systematically an historic anomaly that is of more than aca­ sets out citizens' rights. Second, there exists demic relevance. The UK played an important no obligation on governmental and other pub­ part in drafting the European Convention on lic authorities to respect substantive human Human Rights. It was among the first group of rights. While our courts have taken account of countries to sign the Convention. It was the the European Convention on Human Rights in very first State to ratify it, in March 1951 . In certain limited contexts, they are ultimately spite of this, the aberrant position has been powerless to apply the Convention in the face reached that the United Kingdom is virtually of a clear infringement of fundamental rights the only state party to the Convention that has where statute sanctions what has been done. failed to give proper effect to it in domestic More generally, the UK lacks a legal culture law. This has arisen through a combination of of rights: for instance, no institutional proce­ the British duellist tradition, according to which dure exists that seeks to ensure that new legis­ international treaties become part of domestic lation confonns to human rights nonns. law only through legislative incorporation; and The fonner Prime Minister, John Major, the long standing unwillingness of successive in a major speech opposing a Bill of Rights for governments within our separation of powers Britain, famously declared, "We have no need to legislate to confer "excessive" powers on of a Bill of Rights because we have freedom." the judiciary at the expense of an elected Par­ While it is true that British citizens have a re­ liament. This has disadvantaged the British sidual freedom to do that which is not prohib­ people by requiring them to vindicate their ited by law, Mr. Major overlooked the capacity human rights not in their own courts but be­ of Acts of Parliament to invade basic human fore the European Commission and Court in . rights. His claim also gave away an enervating Strasbourg. In tum, this has imposed consid­ insularity. erable expense and delay on litigants, and has It is precisely for these reasons that the new tended to insulate Britain from the culture of British government has introduced into Par­ fundamental rights that the Convention regime liament a Human Rjghts Bill. It will , for the has developed. The enactment of the Human BRITISH SOLUTIONS 31

Rights Bill wi ll change th is position radically dicial review of legislation in the US, that it by giving effect in national law to the human may appear paradoxical from the American rights guaranteed by the European Convention. perspective even to countenance the enactment I began by underlining the significance of of a bill of rights without even attempting for­ infusing the relationship between the individual mally to entrench it. and the state with values based on democracy However, a British approach based on and the rule of law, whilst taking account of strict entrenchment would overlook the reali­ the nuances of national legal systems. The ties of our Constitution. It would be anathema Human Rights Bill secures these dual objec­ to the political and legal culture of the United tives by combining the well known and well Kingdom under which ultimate sovereignty proven principles of our constitutional democ­ rests with Parliament. That is why the govern­ racy with modernity, harnessing both in its ment has instead adopted a model that accom­ quest to fashion a regime of fundamental rights modates the sovereignty principle. protection in harmony with our British politi­ The need to find a solution sensitive to cal and culture. Thus, the Bill fully re­ domestic circumstances has been recognized spects the principle of Parliamentary sover­ elsewhere, too, as can be seen from the diver­ eignty and, as a result, will not require the gent approaches to rights protection that oper­ courts radically to reinvent their role by adju­ ate in different legal systems. So, in its recent dicating on the validity of legislation. How­ human rights legislation, New Zealand favored ever, as well as respecting these well proven an essentially interpretive approach, that has principles of the British Constitution, the proved successful and appropriate to that legal government's proposals are equally consistent culture. In contrast, the Canadian model con­ with a series of more modern trends in British fers greater powers on the judges by "allowing public law particularly the shift to­ them to strike down unconstitutional legisla­ ward a more substantive conception of the rule tion, while preserving the ultimate power of of law; a greater awareness of the relevance of the legislature to infringe the Charter of Rights rights-based adjudication; and the increasing and Freedoms where this is thought necessary. receptiveness of United Kingdom law to the The American system is, of course, different influences of other legal systems. again, assigning full supremacy to the Consti­ Let me set out these ideas in a little more tution by denying to the legislative branch any detail, beginning with the way in which the power to override, other than by amendment. Human Rights Bill reconciles its objectives It is therefore clear that a broad spectrum with the fundamental principle of the sover­ of solutions may be adopted to uphold funda­ eignty of Parliament. mental rights. Each country must embrace an approach appropriate to its own circumstances. Maintaining Constitutional The American model, providing for judicial Tradition: review of legislation, and motivated substan­ tially by considerations arising from the fed­ Parliamentary Sovereignty in a eral structure of the United States, would be Rights-Sensitive Environment unsuited to Britain with its long history ofleg­ The omnicompetence of the British Par­ islative supremacy and its nonfederal arrange­ liament has long been regarded as the corner­ ments. stone of the UK's constitutional structure. This unequivocal commitment to the ulti­ However, many commentators have argued mate sovereignty of Parliament will not, how­ that Parliamentary supremacy is inconsistent ever, reduce the efficacy of the new British with the effective protection of human rights. human rights system in practice. The want of I recognize, because of the importance of ju- any jurisdiction to strike down incompatible 32 JOURNAL 1998, VOL. 2

Lord Irvine chatted wilhJusticeSarxh DayO'Connor and Justice Stephen G. Breyer afterdel~ ing the National Heritage lecture. At left, Solicitor General Waxman (whose article ap­ pears on pages 3- 25) wans to have a word with him.

primary legislation will not, in the vast major­ tion is the reception of European Union law ity of cases, impair the ability of the courts to into United Kingdom law. It is an axiom ofEu­ ensure that the executive and other public au­ ropean Union law that it must take priority over thorities exercise their discretionary and rule­ any inconsistent national provision. This re­ making powers consistently with human rights. quirement is normally met simply by interpret­ Also, although the sovereignty of Parliament ing national legislation as being consistent with is preserved, the Human Rights Bill will im­ Community law. In the Fa ctortame litigation, pact significantly on how it is exercised in prac­ however, the British courts were presented with tice. In particular, a declaration by a higher an irreconcilable conflict between United J(jng­ court that British law is incompatible with the dom legislation and European Union law. The European Convention is likely to create im­ national legislation provided that fishing ves­ mense political pressure to amend the offend­ sels could only be registered as British, so gain­ ing legislation to secure in national law the ing the right to exploit the United J(jngdom fish­ protection of the relevant right. The Bill en­ ing quota, if " a genuine and substantial con­ courages corrective action by providing a "fast­ nection with the United Kingdom" could be track" procedure for that purpose. Also, the Bill demonstrated. It was argued that this require­ will require ministers, when introducing new ment conflicted with certain guarantees set out legislation, to state to Parliament whether it is in the Treaty of Rome, such as the right not to compatible with the European Convention. be discriminated against on grounds of nation­ Parliament will, no doubt, scrutinize closely ality and the right of individuals and businesses any draft legislation that risks infringing hu­ to establish themselves anywhere in the Com­ man rights. So, while the ultimate sovereignty munity. After receiving guidance from the Eu­ of Parliament is undisturbed by the Human ropean Court of Justice, it was held that an En­ Rights Bill, that sovereignty will in future have glish court could disapply national legislation to be exercised within an environment highly that conflicted with Community law. However, sensitive to fundamental rights. this does not impair the ultimate sovereignty of There are clear precedents for this ap­ Parliament, because, in giving effect in this way proach, by which constitutional innovation is to Community law, the courts are simply heed­ reconciled with the ultimate sovereignty of the ing Parliament's intention-as expressed in British Parliament. The most striking illustra- the legislation that facilitated British member- BRITISH SOLUTIONS 33 ship of the Community-that European law ciple. The Human Rights Bill disproves that. should take priority. This creative solution was Its capacity to harness both constitutional prin­ inspired by the fact that the Treaty of Rome ciple and the new ethos of public law is its makes it a requirement of Community mem­ defining characteristic. This is the single most bership that European law should be accorded important factor that will ensure its success priority over mlmicipallaw. Moreover, it is well in forging a politically acceptable system of recognized that Parliament's ultimate sover­ rights protection in hannony with British po­ eignty remains undisturbed, since it is unques­ litical and legal structure. tioned that it may enact legislation to with­ draw the UK from the European Union. Building on the Common Law's This reconciliation of constitutional in­ Commitment to Fundamental Rights novation with the orthodox theory of sover­ eignty is also apparent in the human rights I have already referred to the common sphere. For example, although the courts have law's commitment to fundamental rights. Its expressed a particularly strong commitment respect for liberty has a long history. Neither to the common law right of access to the the absence of a written catalogue of rights courts, they have emphasised that respect for nor the doctrine of parliamentary sovereignty parliamentary sovereignty dictates that this has made British judges impotent to protect right is enforced only by interpretive means. fundamental rights. The courts have shown par­ The same kind of accommodation can be dis­ ticular confidence in recent years in the field cerned in the vindication of procedural values of access to justice, applying a strong pre­ by way of judicial review. The ultra vires doc­ sumption that Parliament does not intend to trine, that is the foundation of the review ju­ interfere with the citizen's right of access to risdiction, provides that those values must ul­ the courts. Thus, when the previous govern­ timately be related to, and therefore recon­ ment sought to increase significantly the court ciled with, the sovereign will of Parliament. fees that must be paid by intending litigants, it Thus, the first strength of the Human was held that this measure was unlawful be­ Rights Bill is its ability to accommodate fully cause of its considerable adverse impact on the axiom of parliamentary sovereignty. In the right of access to justice. Notwithstand­ doing so, it draws on the long-established prac­ ing its essentially interpretive character, this tice in English public law of reconciling con­ approach secures a high degree of protection stitutional innovation with established prin­ for those rights to which it applies. Precisely ciple. the same point can be made in relation to the procedural rights that are safeguarded by way The Human Rights Bill and the of judicial review. New Public Law Culture in Britain It is therefore apparent that the contribu­ tion of the Human Rights Bill will be to Introduction strengthen and enlarge an already existing edi­ The Human Rights Bill is equally in tune fice of rights protection in English law, the with a series of contemporary strands in pub­ foundations of that are to be found in the com­ lic law thinking that favour a shift towards mon law itself. In this way the I-[uman Rights rights-based adjudication. Some believe there Bill is wholly in tune with the current nature of exists an unbridgeable divide between these public law in the UK, given that both the Bill's more novel aspects of British public law and objective of promoting rights and its interpre­ its traditions, so that a modem regime of rights tive methodology are already, and increasingly, protection can be achieved only at the expense embraced by the courts. of discarding established constitutional prin- 34 JOURNAL 1998, VOl. 2

Changing Conceptions of the limits of this approach. An example concerned Rule of law with the right of freedom of expression is il­ The growing confidence of the judiciary lustrative. Some years ago, the government is­ in articulating and enforcing a limited cata­ sued regulations imposing restrictions on the logue of common law rights can be related to broadcasting of interviews with representa­ a broader development in English public law. tives of particular terrorist organizations. The It has long been recognized that the rule of impact of the regulations was relatively mi­ law is a fundamental aspect of the unwritten nor, effectively prohibiting only live interviews British Constitution. The Victorian jurist, with these individuals. Still, it was alleged, in Albert Venn Dicey, famously wrote that the judicial review proceedings, that these regu­ rule of law is one of "the two principles that lations improperly interfered with freedom of pervade the whole of the English constitution." expression. The House of Lords refused to The other, of course, is the doctrine of parlia­ deal directly with the substantive question mentary sovereignty. whether this interference was justifiable or The rapid development in recent decades proportionate to the goverrunent's objective. of the High Court's supervisory jurisdiction Apart from asking whether the adoption of the reflects a growing judicial awareness of the regulation was manifestly irrational or per­ need to vindicate the rule of law by imposing verse- a test that is very hard to satisfy-the standards of legality on public authorities. court focused exclusively on the propriety of However, while British judges have steadily the decisionmaking procedure that had led to extended the procedural rights that individu­ the adoption of the regulation. als enjoy as they interact with the state, this This example demonstrates that, at the has not been matched by the development of a heart of the human rights debate in the UK, jurisdiction to check executive action for com­ lies a paradox. Undoubtedly there is a ground pliance with substantive human rights norms. swell of enthusiasm for the protection of fun­ There are some signs that this position is damental rights under a more substantive con­ slowly changing. In a number of lectures and ception of the rule of law. Nevertheless, the articles, senior members of the judiciary have courts consistently hold back from giving full displayed their appetite for a shift in British effect to this trend, preferring instead to per­ public law away from exclusively procedural petuate an almost exclusively procedural ap­ concerns and towards an adjudicative approach proach to the rule of law. Thus, in spite of the that also upholds substantive rights. It is clear widespread recognition in judicial and other that this desire is born of a wish to give effect circles of the importance of upholding funda­ to a conception of the rule of law that has both mental rights, English courts still possess no procedural and substantive dimensions. Thus, comprehensive jurisdiction capable of secur­ the judges have called for the incorporation of ing this objective in substantive terms. the European Convention on Human Rights The reason for this paradox lies in the un­ into British law, and, in the meantime, the rec­ certainties of the unwritten British constitu­ ognition of a more developed indigenous ju­ tional order. The United States Constitution risdiction to uphold human rights. guarantees to citizens that certain fundamental This extracurial discourse has to some rights are paramount, beyond even the reach extent been given practical effect through the of the legislative branch. The existence of such courts' willingness to subject to particular! y an explicit catalogue of rights carries with it, intensive scrutiny executive action that is al­ as Chief Justice Marshall recognized almost 200 leged to have interfered with fundamental years ago, important implications for the judi­ rights. cial function. In particular, it is recognized as However, it is important to appreciate the conferring on the courts a constitutional war- BRITISH SOLUTIONS 35

rant to vindicate these rights through judicial is what our Human Rights Bill does. review. The exercise of this jurisdiction by the The success of the U.S. Constitution in Supreme Court is often the subject of public delivering a developed system of human rights debate and even controversy. Crucially, how­ protection I am sure, because it supplies ever, the Constitution provides a focal point individuals and the courts with a catalogue of for discussion and is the benchmark against rights that has a consensual basis and provides which the legitimacy of the Court's develop­ the jUdiciary with the constitutional warrant it ment of American public law can be evaluated. needs to uphold those rights. Those charac­ In contrast, the disparate and largely un­ teristics also underlie the new rights protec­ written character of the British Constitution tion that will be instituted in the United King­ makes it harder to delineate the respective dom. It is the Human Rights Bill that will re­ functions of the different branches of govern­ solve the paradox to which I referred earlier ment. It is this problem with which the judges and that has hitherto stunted the development are grappling in relation to human rights. Al­ of a proper human rights jurisdiction in Brit­ though they clearly wish to give effect to a ain. The Bill will harness the growing trend substantive theory of the rule of law by afford­ towards human rights protection and a substan­ ing direct protection to fundamental rights, the tive conception of the rule of law, while giv­ courts are ultimately deterred from doing so ing democratic impetus to that development. by a concern to avoid transgressing the bounds Against this background, the courts will be able of their allotted constitutional province. to begin the important task of forging a sub­ Judicial adoption of a substantive theory stantive rights-based jurispmdence without any of the rule oflaw would involve a much greater fear of exceeding their proper constitutional exercise of power by the courts. The judges province. would become exposed to the charge of claim­ ing for themselves a jurisdiction that is not Changing Conceptions of the Judicial properly theirs. The attendant increase in the Function intensity of review would at least raise the spectre of improper judicial interference with Thus far, I have explained how the Human executive functions. And judicial detern1ina­ Rights Bill, while respecting constitutional prin­ tion of which rights are sufficiently fundamen­ ciple, also intersects with more contemporary tal to qualify for legal protection would cre­ features of British public law, such as the de­ ate the appearance of judicial Jaw-making in velopment of common law rights and the move­ the sphere allocated to an elected Parliament. ment towards a more substantive notion of the These considerations have led me, in the rule oflaw. I would like to mention two further past, to argue that "it is the constitutional im­ aspects of public law thinking that the Human perative of judicial self-restraint that must in­ Rights Bill embraces. Let me begin by saying form judicial decisionmaking in [English] pub­ something about changing conceptions of the lic law." In the United Kingdom-unlike the judicial function. United States-the three branches of govern­ It would be misleading to suggest that a ment are not equal and coordinate: it ulti­ concern for civil liberties is the exclusive pre­ mately, Parliament that is the senior partner. serve ofthe modern judiciary in Britain. In Dr. It is for this reason that, if, as I think: it must, Bonham's Case in 1603, Chief Justice Coke the judiciary is to set about the task of pro­ argued that "when an act of parliament is tecting substantive rights, the content of those against common right and reason, or repug­ rights and the nature ofthe courts' function in nant ... , the common law will control it, and upholding them, must be "crystallized in a adjudge such act to be void." Although this democratically validated Bill of Rights." That case predates the constitutional settlement that 36 JOURNAL 1998, VOL. 2

affinned the sovereignty of Parliament and ognition from the decision of the majority in therefore does not fonn part of the modem Liverside v. Anderson. In 1979, the House of law, it nevertheless serves to illustrate that the Lords acknowledged that the decision in protection of fundamental values has tradition­ Liverside v. Anderson was simply wrong. Be­ ally been viewed in England as an aspect of ginning in the 1960s, the judges started to re­ the judicial function . discover constitutionalism as part of their func­ It is fair to say, however, that the extent to tion. This renaissance, seen principally in the which the judges have felt obliged to speak up field of judicial review, has been described in for these values has varied considerably over colorful language by Mr. Justice Sedley. Speak­ time. The history of English administrative law ing extrajudicially, he has remarked that by the in the twentieth century is the litmus paper of early 1980s, "the courts were waiting with re­ this phenomenon. During the earlier part of fined instruments of torture for ministers and the century the judges often attached little departments ... who took their public law obli­ weight to protecting the rights ofthe individual. gations cavalierly." A classic example is the decision of the House English law is not, of course, unique in of Lords in Liversidge v. Anderson in 1941. witnessing alterations across time in the con­ The Secretary of State was empowered to make ception of the judicial function, as the juris­ an order detaining any person whom he had prudence of the U.S. Supreme Court demon­ reasonable cause to believe was, in some way, strates. It is hardly necessary to mention the a threat to public safety or national security. rejection of the old, "separate but equal" doc­ The majority of the court held that, provided trine, of Plessy v. Ferguson by the Supreme the Minister had acted in good faith, they could Court in Brown v. Board of Education. What enquire no further into the propriety of his ac­ may have changed between 1896 and 1954 was tion. In particular, it was said that the court not the concept of equal protection, but per­ could not detennine whether the detention or­ haps rather a change in the conception of the der was, in fact,justified on objective grounds. judicial function and the Court's perception It was only Lord Atkin, in his historic dissent­ and understanding of the requirements for the ing speech, who spoke up for the protection practical implementation of equal protection. of liberty as an important component of the In the United Kingdom, we are traditionally judicial function. I quote: more wedded to the concept of stare decisis. But the Supreme Court of the United States In this country, amid the clash of is prepared to depart from prior decisions anns, the laws are not silent. They when adherence to them involves a collision may be changed, but they speak the with principle that is "intrinsically sounder, and same language in war as in peace. It verified by experience." has always been one of the pillars of Britain and America are not alone in hav­ freedom, one of the principles of lib­ ing experienced, particularly during the latter erty for which on recent authority we part of this century, the "constitutionalization" are now fighting, that the judges are of the judicial function. It is the massive ex­ no respecters of persons and stand pansion of the administrative state that, more between the subject and any at­ than any other factor, has prompted the judges tempted encroachments on this lib­ to reassess their constitutional role. As the com­ erty by the executive, alert to see that parative lawyer Mauro Cappelletti has ob­ any coercive action is justified in law. served, the courts in many jurisdictions are "becoming themselves the 'third giant' to con­ Fortunately, the attitude of the English trol the mastodon legislator and the leviathan courts has since changed almost beyond rec- administrator." BRITISH SOLUTIONS 37

It is this emerging view of the judicial Union has been a major catalyst. The UK was function with which the British human rights required, as a condition of membership, to re­ legislation not only intersects but also legiti­ ceive Community law into its national legal mates. The United States Constitution per­ system. However, the impact of this "incom­ mits-and requires-American courts to rec­ ing tide"-as Lord Denning, the former Mas­ ognize that duties of a constitutional charac­ ter of the Rolls, once famously referred to Eu­ ter inform the nature of their judicial func­ ropean Law-has been felt not only in areas tion. United Kingdom law has hitherto pos­ governed directly by Community law: it has sessed no analogue. It is the Human Rights Bill also exerted a more general, indirect influence that will capture the current zeitgeist of Brit­ on national law. In a number of important de­ ish public law favoring the constitution­ cisions~ea li ng with issues as diverse as the alization of the judicial function. By confer- liability of the Crown to be restrained by in­ democratic legitimacy upon this develop­ junction and the interpretation of ambiguous ment, the new legislation will allow the judges national legislation-the indirect influence of to fulfill a stronger constitutional role in a European law on the development of domes­ wholly constitutional way. tic law has been clear. And it is not only the Human Rights Bill This more outward-looking attitude of the that will contribute to this process. The other English courts is to be seen in other areas, too. constitutional reforms that I outlined earlier will For instance, they are increasingly willing to have similar consequences. Thus, it is the look to other national legal orders to help them courts, through their judicial review jurisdic­ resolve hard cases. There are also some indi­ tion, that will have the last word on freedom of cations that the English courts are beginning information. Moreover, the devolution of gov­ to refer more readily to international law, both ernmental power will confer on the British ju­ customary and conventional. This is particu­ diciary a wholly new function of a constitu­ larly true of international human rights law. tional character, si nce it is the judicial system Thus, despite its unincorporated status, the that wil l bear ultimate responsibility for ensur­ European Convention on Human Rights has ing that the Scottish Parliament does not trans­ exerted an indirect influence on the jurispru­ gress the bounds of its legislative competence. dence of domestic courts in the UK, that have Ofcourse, the American courts have, since used it to guide their development of the com­ the inception of the federal Constitution, exer­ mon law and as an aid to the construction of cised this kind of function by resolving demar­ ambiguous legislation. cation disputes between Congress and the state It is within this context that the issue of legislatures. By conferring on UK courts an human rights has now taken center stage in analogous jurisdiction, the devolution regime public law discourse in the UK. As British pub­ will contribute to the further constitution­ lic la'wyers increasingly look at the experiences ahzation of the judicial function in Britain. of other legal systems, they become more acutely aware of the shortcomings of their do­ The Trend Toward Cross-fertilization mestic law in the field of human rights. of legal Norms Against this background, it is appropriate The final trend in UK public law that I that the institution of a British system of fun­ mention is this: the increasingly outward-look­ damental rights protection is to involve re­ ing attitude of the courts. In recent years, En­ course to the European Convention on Human glish law has grown more receptive to the in­ Rights, an international human rights instru­ fluences of other legal orders, both domestic ment. By adopting this solution, the Human and transnational. Rights Bill once again intersects with an im­ British membership of the European portant aspect of modem thinking in British 38 JOURNAL 1998, VOL. 2 public law. Now, more than ever, it is apparent rights before British courts. In these ways, the that the British legal system exists within a relationship between the individual and the broader European-and, ultimately, intema­ state wiJi acquire a new, constitutional dimen­ tional-<:ommunity of legal families. Just as sion. It will be imbued, far more than ever be­ English law has long exerted important and fore, with values-based on democracy and the valuable influences on other legal orders, so rule of law-that the British Constitution has it is increasingly recognized that other legal traditionally championed. orders are a rich source of inspiration for En­ It is axiomatic that this process of renewal glish courts. Crucially, however, this perme­ will take full account of the contours-ancient ation of English law is to occur through the and modem- that shape the landscape of Brit­ subtle influences of cross-fertilization, rather ish public law. Thus, the Human Rights Bill ac­ than by crudely transplanting into English law commodates both the constitutional orthodoxy a regime that is unsuited to its political and of parliamentary sovereignty and the series of legal culture. contemporary, rights-oriented trends in public law thinking that I have identified this evening. Conclusion Far from being an uneasy compromise, this ac­ commodation that the Bill achieves is its fore­ Professor Ronald Dworkin recently wrote most strength. It is the means without which it that: would not have happened. By placing principle and modernity side by side in harness, the Hu­ Great Britain was once a fortress for man Rights Bill ensures a catholic approach freedom. It claimed the great philoso­ that will lead to the strongest possible founda­ phers of liberty-Milton and Locke tion for a uniquely British regime ofhtunan rights and Paine and Mill. lts legal tradition protection. is irradiated with liberal ideas: that The importance of adopting an approach people accused of crime are presumed of this kind should not be underestimated. It is to be innocent, that no one owns widely known that Canada's Bill of Rights, another's conscience, that a man's passed in 1960, largely failed to achieve any home is his castle, that speech is the genuine constitutional status. Neither the Ca­ first liberty because it is central to all nadian Supreme Court nor the federal govern­ the rest. ment displayed the enthusiasm that is neces­ sary to ensure the success of a human rights The program of constitutional reform now regime. As Professor Harry Arthurs observed being undertaken in the United Kingdom wiJi some years ago, "Only when [a] Bill [of Rights] provide a modem institutional framework ca­ begins to command the loyalty of individuals­ pable of giving contemporary effect to this will its aspirations be translated into reality." proud libertarian tradition. I began by observ­ This reality was realized by Canada through ing that all legal systems must confront the re­ the Charter of Rights and Freedoms that it lationship between the individual and the state. adopted in 1982, by which time the political and It is precisely that issue that is tackled by the legal culture was ready to receive a human current reforms of the British constitution. In­ rights regime. Similar factors help to explain the dividuals willa<;quire.a legal right of access to success that the New Zealand Bill of Rights official information. Government itself will has enjoyed since its inception in 1990. As the become more accessible through the devolu­ New Zealand commentator Paul Rishworth ob­ tion of executive and, where appropriate, leg­ serves, the enactment of the Bill "coincided with islative power. British citizens will, at long last, a spring tide of judicial enthusiasm for the en­ be empowered to vindicate their fundamental forcement of fundamental rights and control of BRITISH SOLUTIOI\IS 39 governmental power." bear the heat of the day in this collective en­ These experiences are of great relevance deavour. The task that now lies before the Brit­ to Britain as it renews its own constitution. They ish judiciary is one that was begun by the Jus­ underscore the importance of achieving a syn­ tices of the Supreme Court of the United States thesis between political and culture and over 200 years ago. The magnitude of the task the measures by which the constitution is re­ appears from the many fraught and courageous formed. The foundations of this synthesis are decisions the Supreme Court has taken during established by the capacity of the Human its history. I am confident that the British Rights Bill to harness both the strengths of our courts will rise to the challenge they now face democratic principles and the new ideologies with wisdom and enthusia.<;m. In doing so, how­ of British public law. ever, they will do well to look to the long ex­ I fully acknowledge, however, that the in­ perience of the American courts and the im­ stitution of a new human rights regime is a pressive body of jurisprudence that they have hugely complex undertaking. While the char­ amassed in the field of human rights. acteristics ofthe Human Rights Bill that I have Still, in discharging their new constitutional discussed this evening provide an excellent duties, the ultimate task of the British courts starting point, much work remains to be done. will be to bu ild on the foundations laid by Par­ The proofofthis as with every pudding will be liament in the Human Rights Bill, by upholding in the eating. Politicians, public servants, law­ human rights in a manner appropriate to our yers, and citizens all have their distinct roles national political and legal culture. This will be to play to ensure that a new culture of respect their contribution to the development of a for fundamental rights comes to pervade all uniquely British solution to this most universal our public authorities, including the courts, and of issues-the proper balance of power and extends throughout the whole of our society. between the individual and the state in a It is, though, the judges who will probably democracy under the rule of Jaw. Supreme Court Law Clerk, 1957-1958 A Reminiscence

Alan C. Kahn

Thursday, January 31, 1957, was a nor­ Constitution were amended to permit more tha mal news day. President Eisenhower defended two terms. his Secretary of Defense, Charles E. "Choo In sports, Lew Hoad, the world' s be! Choo" Wilson, for commenting that the Na­ amateur tennis player, did not have a hernJ tional Guard was a haven for draft dodgers ated disc, just low back strain . In basketbal during the Korean War. Ike disapproved of the the Knicks were in first place, one and a ha statement. Wilson was "short-cutting and mak­ games ahead of Philadelphia, after beatin ing a very . .. unwise statement without stop­ Rochester, 92 to 80. ping to think what it meant." The guardsmen The stock market had a good day. Th were not slackers. Wilson, I recall, made un­ Dow Jones was up over 3 points to close, wise statements fairly often. 480.53 on a volume of 1,950,000 shares. Bi Ike was also defending his Secretary of business was looking for secretaries at $60 State, John Foster Dulles, for allegedly ruptur­ week to start. In Detroit, the big three car mam ing our traditional alliances with Great Britain facturers were turning out lots of cars stylize and France during the abortive attempt by the with large rear fins . A new car cost $2,10( latter to retake the Suez Canal in the Fall of unless you wanted to pay for extras such a 1956. No, the President said, he had "no rea­ power steering, power brakes, heater, air cor Son whatsoever to change his opinion that John ditioning, defroster and a radio, in which cas Foster Dulles was the best Secretary of State the price went up to $3,000. Ford was bus he had ever known." He went on to add, in with its plans to come out with its brand nel response to a question, that this was his last concept in automobiles, the Edsel, sched ule term and he would not run again, even if the to be in the showrooms in October. THE LAW CLERK 41

On Broadway, Rosalind Russell was in Chief Justice Earl Warren. After all, he had Auntie Marne, Paul Muni was in Inherit the three law clerks, rather than the usual two, and Wind and Rex Harrison and Julie Andrews were I increased my chances by 50% by applying to in My Fair Lady. If you wanted to buy new him. My applications were mailed in Novem­ clothes, Bergdorf's had some nice frocks for ber and shortly thereafter I received a polite $100, and Saks Fifth Avenue had men 's suits personal rejection from Justice Clark. But I for $60, dress shirts for $5.95 and ties for $4. heard nothing from the Chief Justice. Too busy, In Washington, the Honorable Stanley F. I thought, and the whole idea was ridiculous Reed announced his retirement as a Justice of anyhow. November, December and January the Supreme Court of the United States. That rolled by and still no letter of rejection. I made was the news that was going to affect my life. I plans to return to St. Louis. was in the Army in Germany and totally un­ With the announcement at the end of Janu­ aware, and somewhat uncaring, about what was ary of Justice Reed's resignation, speculation happening in the States. I rarely read the Stars about his successor was immediate. Among and Stripes, the Army overseas newspaper, and those mentioned was Charles E . it contained very little news anyway. Whittaker from Kansas City. Judge Whittaker I was a "short-timer" and was headed had been appointed to the Federal Court of home in early April to practice law with my Appeals for the Eighth Circuit by President father in St. Louis. My wife, Joanne, was dis­ Eisenhower and had been on that court only appointed. Two years before, when we thought since June 22,1956. Before that, he served on I would be stationed in Washington, D.C., she the federal district court in Kansas City for two had applied and was accepted for admission to years. His booster was Roy Roberts, publisher Catholic University's graduate drama school of the Kansas City Star. Roberts was a close which had a famous and charismatic chairman, friend of the President and a charter member Father Hartke. I was sent to Germany. She was of the Republican "Draft Eisenhower" move­ told that her admission could be deferred for ment of 1952. On February 28, 1957, Attor­ the two years I was in Germany, but I had no ney General Herbert Brownell called Judge plans to go to Washington after the Army. Af­ Whittaker and told him that he would be the ter all, what would I do there while she was in nominee for the Supreme Court vacancy. Presi­ school? dent Eisenhower made the formal announce­ Not to worry, she said. I could apply for a ment on March 2. clerkship to a Justice of the Supreme Court of Chief Justice Warren had not seleeted me the United States. She was being a little naive, as one of his law clerks, but he had remembered I thought. Those jobs were reserved for the best my application. When Judge Whittaker was law students from Harvard, Yale and Colum­ nominated, the Chief asked him if he had a law bia. I graduated from a second-tier school, clerk and the Judge replied in the negative. The Washington University in S1. Louis. No, she Chief gave him my application and told him that reminded me, my constitutional law professor, I had come highly recommended by a distin­ Charles Fairman, a national legal figure who guished constitutional law professor, Charles was using our school as a weigh station on his Fairman, and by Dean Milton Green and Chan­ academic journey to Harvard, had told me that cellor Ethan Shepley of Washington Univer­ I should apply. sity. He also noted that I would be available at Dutifully, I prepared my application, or I the beginning of April, about the time it was should say my applications. Justice Tom C. expected that Judge Whittaker would assume Clark was the Justice assigned to the federal the Supreme Court Bench. While Whittaker did circuit court headquartered in St. Louis, and so not know Fairman, he did know both the Dean one application went to him. The other went to and the Chancellor. 42 JOURNAL 1998, VOL. 2

On March 25,1957, Judge Whittaker be­ that the Court review the case (a petition for a came a Justice of the Supreme Court, and a few writ of certiorari) and type a summary so that days later I received a letter from him inviting the Justice could review the matter quickly. Sec­ me to come in for an interview. The Jetter came ond, we needed to review all the briefs filed in as a total shock. I did not know Justice Whittaker the cases the Court had agreed to review and or that he had been appointed to the Supreme type a summary of the briefs. The third task Court or how he came to be in possession of consisted of helping the Justice in any way he my clerkship application. On April 6, Joanne wished in the drafting of opinions. Typing and I flew home to the United States on Slick turned out to be the most useful course I had Airways, a military air transport contractor. On taken at high school in University City, Mis­ April 8, I was discharged from the Army and souri, a suburb of St. Louis. Essentially, my picked up my new Volkswagen beetle, which I life became reading and typing, reading and had shipped ahead. On April 9, I presented typing, reading and typing. myself for the interview. While I was working on cases in which I was both terrified and awestruck. How my Justice was participating, decisions were could this be happening? His chambers were being handed down in cases in which Whittaker huge, as was his desk. Whittaker was a slight, took no part but which were affecting the en­ wiry individual and seemed much too small for tire Court. On May 5,1957, the Court decided his vast office and desk. I felt I was not ready Konigsberg v. State Bar and Schware v. Board for the interview. I had studied no constitutional ofBar Examiners. Konigsberg passed the Cali­ law for two years and had forgotten much of fornia bar examination but because he refused what I had learned. I had dragged along with to answer questions as to whether he was or me to Germany a text, Corwin on Constitutional ever had been a member of the Communist law, and I had crammed for my interview by Party, he was denied admission to the bar. devouring that book. But because the book was Schware told the New Mexico bar committee published in 1954, there was a three-year gap in that he had once been a member of the Young my knowledge. Communist League and had been in and out of I need not have worried. The Justice asked the Communist Party in the 1930s but quit per­ me a few questions about myself and said he manently in 1940. He was denied admission needed help in his new job. Then he asked me to the New Mexico bar. The Supreme Court when I could start. I said tomorrow and he said held that both had been denied due process of that would be fine. End of interview. Thus, with law because these circumstances failed to show lightening-like suddenness, I became the ben­ that either was disloyal or not of good moral eficiary of an incredible chain of serendipitous character. coincidences. On June 3, in Jencks v. United Stales, the When I arrived for work on April to, I Court reversed Jencks' conviction for falsely was briefed by Manley O. ("Lee") Hudson, swearing that he was not a member of the Com­ who had been one of Justice Reed's law clerks, munist Party because the government failed to but who had agreed to stay on with Justice produce FBI reports of conversations it had Whittaker until his second law clerk was cho­ with two government witnesses for use by sen and in place. Lee explained to me that while Jencks' attorney in cross-examination. Then, a law clerk' s duties varied from Justice to Jus­ two weeks later, the Court handed down Yates tice, we basically were going to do three jobs v. United States, Service v. Dulles, Watkins v. for the Justice, aJl of which required typing United States and Sweezy v. New Hampshire. skills. In Yates, the Court reversed the defendant's First, we had to read all the applications by conviction of a conspiracy to advocate and the losing party in the court below requesting teach the violent overthrow of the government. THE LAW CLERK 43

In Service, the Court held that there was no Hoover's library. The Attorney General of New basis in the evidence to find that Service was Hampshire opined that the decisions had set or had been a member of the Communist the country back twenty-five years in the Cold or to have any reasonable doubt about his loy­ War with the Soviet Union. The minority leader alty. ofthe United States House of Representatives, Watkins and Sweezy involved, respec­ Republican Joe Martin, lamented the crippling tively, the proper scope offederal and state of Congress' ability to investigate for the pur­ islative inquiries. Watkins' conviction of con­ pose of enacting needed legislation. tempt of Congress for refusal to testify w herher How could loyal American Justices of the certain persons were members of the Commu­ Supreme Court of the United States give such nist Party was reversed because the inquiry was aid and comfort to the enemy? David outside the scope of the investigating Lawrence, editor of U.S. News & World Re­ committee's authority. Sweezy's conviction of port, was ready to suggest the answer in the contempt of the state legislature was reversed July 12 issue of the The problem lie because his refusal to answer questions about with the "ghost writers," the eighteen law clerks whether he advocated "Marxism" or believed to the Justices. This "second team" was hav­ in Communism, or questions about his alleged ing far too much influence on the nine old men. prior contacts with communists, was justified The article paid lip service to the fact that the since the New Hampshire legislative commit­ law clerks were mainly typing factual memo­ tee asking the questions had exceeded the randa for the Justices to read before they made proper scope of its power of inquiry. up their own minds about cases. The clear mes­ There was a public outcry about all these sage, however, was that these young persons "pro-communist" decisions. Editorials sug­ were too influential in the decision-making gested legislation to prevent accused Commu­ process and in writing the opinions of the nists from poring over documents in 1. Edgar Court

The law clerks of the October 1957 Term posed in front of the Supreme Court building. Each of the Justices was invited to have lunch during the year with the eighteen clerks in their lunch­ room. 44 JOURNAL 1998, VOL. 2

The article went on to suggest that there murder, only first degree murder. The court of were two problems with the clerks that could appeals agreed and remanded the case for a explain this spate of "Red" decisions. First, they new trial with orders to the trial judge to sub­ had no security clearance. After aJl, it was "fun­ rrilt the case only on first degree murder. The damental" that there should be no reasonable trial judge complied and this time Green was doubt about their loyalty to avoid their doing convicted of first degree murder and was sen­ unimaginable damage to national security, yet tenced to death in the electric chair. the American public had no assurance what­ Green again appealed, this time contend­ soever that they were not providing false in­ ing that his constitutional right not to be sub­ formation to the Justices in crucial security jected to double jeopardy had been violated. cases. The second degree murder conviction implied Second, were these young men experienced an acquittal of the first degree murder since lawyers? Indeed, were they even lawyers? The the jury had had an opportunity to convict him article contained two pages of mug shots of of first degree murder and had declined. The the clerks. Instead of numbers across the bot­ second trial for first degree murder, therefore, tom of each picture, there was the law clerk's made him walk the plank twice after his first name, home town, law school and whether he success and therefore entailed double jeopardy. was a member of the bar. Fully one-third had The court of appeals disagreed. There was earned the opprobrium, "Not a Member of the a case directly in point, Trono v. United States, Bar." Fortunately, I had made the grade. I had which clearly held that a conviction of a lesser been lucky enough to have taken and passed included charge did not imply an acquittal of the Missouri Bar just before I went into the the greater offense. The defendant could there­ Anny. fore be retried for murder in the first degree. At the Court, life went on as usual. I re­ The Supreme Court agreed to review the mained busy reading and typing. The Chief case and it was argued shortly after Justice Justice was described in the same magazine Whittaker ascended the Bench. Green's attor­ issue as not being "disturbed or ruffled by the ney pointed out that about half of the state su­ reaction in Congress and in the country" to the preme courts that had considered the identical Court's latest decisions. My Justice was issue had decided that the bar against double unfazed. He had a predicament of his own that jeopardy applied. The government relied on manifested itself that Spring with the case of Trono. Green v. United States. After oral argument, Whittaker was un­ Everett Green was sixty-three years old and sure. He had been put on the Court by a con­ had apparently set fire to the apartment in servative President, Dwight D. Eisenhower, Washington, D.C., where he and his eighty­ and the Justice was committed to the doctrine one-year-old femaJe companion were living. She of stare decisis, meaning that a judge would died in the fire but he did not. Green was in­ be bound by a prior decision to provide conti­ dicted for first degree murder, which carried a nuity to the law and respect for the integrity of mandatory death penalty. At his trial, the jury the judiciaJ process. found Green guilty of second degree murder On the other hand, the defendant faced rather than first degree murder, perhaps be­ certain death by electrocution. When Justice cause the jury felt sorry for him and was un­ Whittaker had been a federal district judge, he willing to sentence him to death. Green's law­ had sentenced a man to death, and it continued yers appealed on the ground that the trial court to trouble him a great deal. Fundamentally, he had erred in subrriltting an instruction perrrUt­ was a dirt farmer from the plains of Kansas ting a second degree murder conviction be­ who had moved to Kansas City when he was cause there was no evidence of second degree seventeen and, in true Horatio Alger fashion, THE LAW CLERK 45

The son of a dirt fanner, Justice Charies E. Whittaker wor1c:ed his way up from night law school to become a top trial lawyer. The author believes that the Justice's lack of educational background pre­ vented him from developing a judicial philosophy. Although Whittaker felt more comfortable with the conservatives, he sometimes provided the crucial fifth vote in cases upholding individual rights over the rights of government. had worked his way up from night law school of the law and explained in intricate detail why to become a top-notch trial lawyer in one of the history of the DoubJe Jeopardy Clause and the most prestigious firms in town. Somewhat the weight of legal authority required a rever­ amazingly, he had risen from a district court sal. Justice Frankfurter then weighed in with judge to a Supreme Court Justice in less than an equally long and compelling argument ex­ three years - a meteoric rise that led Justice plaining why history and precedent required Felix Frankfurter to quip that the Supreme Court an affirmation of the death sentence. Justice could get a judge from the district court faster Douglas said simply, "I agree with Hugo." Jus­ than it could get a case. The Justice could not tice Burton said he agreed with Felix as did forget his humble origins and it troubled him Justices Clark and Harlan. Justice Brennan was that this poor, elderly man might be executed. with Justice Black. So the vote was 4-4 when Every Friday the Court held a private con­ it came time for my Justice to voice his opin­ ference attended only by the nine Justices. Each ion. He said he could not make up his mind and case argued that week was debated and a vote asked that the case be discussed again the fol­ taken. Justice Whittaker always wrote incred­ lowing Friday. ibly complete notes of those meetings and At each Conference until the end of the when he emerged from the Conference on the Term, Justice Whittaker continued to announce Friday that Green's case was debated, 1 eagerly that he was unsure. 1 had written the memo­ borrowed his Conference book. The notes re­ randum about the case and had recommended vealed that the Chief Justice said it was not that the case be reversed, but the Justice was fair to try Green twice for "murder first" and he not influenced by this young inexperienced law would therefore reverse. Justice Hugo L. Black clerk, even if 1 was a member of the bar. Fi­ agreed and then went into a long dissertation nally, on June 25, the last day of the Term, an 46 2 order was entered that the case was "restored same time that he began law school. He felt to the calendar for re-argument." inadequate because his academic qualifications That summer the Justice went back to did not measure up to those of his Brethren. At Kansas City for a rest. At his direction, I did his core, he was probably a Libertarian. A raw­ more research and gave the case more thought. boned f31mer from nr.rthf',,,af'I'1l I seht him another memorandum discussing a strong distrust law and state cases raising the same a conservative on economic issues. If a man iSSUe. When the Justice returned to Washing­ owned a business he should be allowed to run ton,he announced that he had made up his it any way he pleased, I n the area of individual mind: Green had been subjected to double jeop- rights he caught in and his conviction should be reversed. the governmental web. In his first years on the The opinion by Justice Holmes to the contrary Court, that outlook found him siding with the in Trono v. United States was not in point be­ Four Framers in though he cause it arose in the Philippine Islands with a felt more comfortable with the conservatives, of law. Never mind that Jus- especially Justice Harlan, whom made it clear in his opinion that he described as one Of "God's anointed souls." he was deciding the case as if it had misen in Justice Whittaker provided a the United States and that American federal the October 1957 Term of Court in Moore v. common law applied. The case was reargued, Michigan in which the Court held that a young, but a decision to reverse had already been made. uneducated black man had not knowingly Justice Black wrote the 5-4 opinion and com­ waived his right to the benefit of counseL And plied with Justice Whittaker's request that Trono in a series of three cases involving the ques­ not be ovelTuled by stating in his opinion that tion whether the government could strip a per­ Trono was not quite in point because it arose son of his United States citizenship, Justice in a peculiar factual setting in the Philippines Whittaker was on the li beral side in all of them. under long established Spanish legal proce­ In Perez v. Brownell, the Court held, that dures alien to United States jurisprudence. a person could lose his citizenship by voting And so a pattern was established fo r a in a foreign election. Justice Whittaker joined number of cases that were argued during the the Chief Justice and Justices Black and Dou­ year and a half that I was with the Justice. There glas in dissent. In Trop v. Dulles, he sided with were four liberals and four conservatives on Warren, Black, Douglas and Brennan to strike the Court. Justices Black and Douglas had been down a section of the Nationality Act of 1940, carrying the liberal torch for years, often alone which provided that a wartime deserter and outvoted 7-2. Now they had two allies, be stripped of his citizenship. And in Nishikawa Chief Justice Warren and Justice William J. v. Dulles, the Four Framers, plus Justices Brennan. They were Eisenhower appointees Whittaker, Frankfurter and Burton, held that the and there were rumors in the press that the government had failed to prove that Nishikawa's President was unhappy with both appoint­ service in the Japanese anny was voluntary and ments. The clerks nicknamed the four liberal that therefore he had been improperly stripped Justices the "Four Framers" [of the Constitu­ of his citizenship. tion] because they often could find a fifth to Besides having no peace of mind because agree with them. Whittaker was a good candi­ he perceived himself as the Supreme Court date for that fifth vote in cases upholding indi­ where the vote divided along liberal-conser­ vidual rights over the rights of government. vative lines, Justice Whittaker was personally The Justice had no educational back­ unhappy, as was his wife. They both loved ground to assist him in developing a judicial Kansas City and missed their friends back philosophy. He completed high school at the horne. The Justice had enjoyed being a lawyer THE LAW CLERK 47 and then a federal trial judge for two years. conservatism and also the Congress, which had Then, for nine months, he was a federal appel­ that day given him a difficult time when he late judge, a job that he disliked because he asked for $25,000 to pigeon-proof the portico missed the excitement and interaction with trial in front of the Courthouse where lawyers, liti­ lawyers and jurors. gants and touIists were being bombarded daily. After work, he would drive me to my bus A congressional committee had been un­ his maroon Cadillac, an automobile that friendly, and the Chief joked that if he had source of great joy to him. One sum­ asked for $25,000,000 instead of $25,000, the in 1957, as he pulled up to the curb to committee would have undoubtedly voted him drop me off, the valve on one of his tires the money with great enthusiasm. off and the tire went flat. It was rush The Chief and Justice Frankfurter did not hoUr and unbearably hot. I we call a get along well. Frankfurter seemed to have little service station. "We'll fix this ourselves," he respect for the Chief's intellect and the Chief as I stood there, totally embarrassed. apparently had a minimal regard for While we were changing the tire he confided Frankfurter's strict attention to procedure. In had "sold himself down the river for a Payne v. Arkansas, was convicted of pot of porridge." He should, he said, never have murder and sentenced to death. But his trial left the trial court bench where he could inter­ was flawed because a coerced confession had act with the real people of the world. He seemed been received in evidence. The Supreme Court to quit right then and there. Just a bad decided to review the decision of the Supreme day at the office, I thought at the time. But it Court of Arkansas with a view toward revers­ was more than that. He was not just unhappy. ing. At the Conference after oral argument, He was distraught and in serious emotional however, Justice Frankfurter pointed out that distress. the Court should not have taken the case in the At the Court, the other Justices were aware first place because at trial and on appeal, of his condition and were sympathetic. They Payne's lawyer, while arguing that the confes­ would come by and cheer him up, but also, in­ sion was coerced, had not that the use cidentally and not uncommonly, to lobby him of a coerced confession violated the federal for their particular point of view in one case or constitution, only that it violated the state con­ another. Sometimes they would come by and stitution. Under well-settled and au­ say hello to me and my fellow law clerk, Ken thority, a litigant in a coerced confession case Dam, who had replaced Lee Hudson. Between was obliged to cite the federal Due Process those congenial visits and their guest appear­ Clause of the Fourteenth Amendment to the ances at the law clerks' lunch room, I came to United States Constitution so that there was a realize that, like Justice Whittaker, they were federal issue for decision. But Payne's lawyer also quite human. had not done so. Justice Frankfurter therefore On one occasion, Justice Douglas visited argued that the case should be dismissed in Whittaker while he was having difficulty wIit- the Supreme Court and the death penalty per­ the majority opinion in United States v. mitted to stand. Hvass. Douglas offered to help and a short The Chief was upset. How could the Court time later he sent over two key sentences that allow an electrocution when all the Whittaker adopted as his own. The opinion was that the confession was coerced and the adopted by the Court, 8-1. Ironically, it was trial was therefore flawed. The Court should Justice who filed the sole dissent. not dedde matters of life and death based on The Chief Justice dropped by one day. He technicalities and procedural niceties. Frank­ sat on a table in our law clerks' office and lam­ furter stood his ground. They were not dealing basted the American Bar Association for its with niceties or technicalities. The Constitu- 48 JOURNAL 1998, VOL. 2

At one point in the argument section of the brief, Payne's lawyer had argued that the con­ fession was coerced and had cited several cases, all decided by Arkansas state courts, except one, which turned out to be a federal case in which a confession had been held to be co­ erced under federal law. Justice Whittaker ad­ vised the other Justices, and they unanimously agreed that a federal question had therefore been properly raised. Justice Whittaker wrote the opinion holding the confession coerced and ordering a new trial. Not one word was men­ tioned concerning whether Payne's lawyer had properly raised the federal question. Another incident occurred that involved somewhat of a role reversal for these two ju­ dicial strongmen, Warren and Frankfurter. Luis Caritativo was sentenced to die in the Califor­ nia gas chamber. Under California law, a per­ son could not be executed if insane at the time tion was adopted on the basis of federalism. of the execution. Luis claimed he was insane, The states had jurisdiction over state matters but the warden of the penitentiary refused to and the federal government, including the Su­ preme Court, could not intervene unless there was a federal question. And here there was no federal question raised. A spirited argument ensued among the Justices. Everyone agreed that the confession was coerced but everyone also agreed that the federal question apparently had not been prop­ erly raised. A compromise was reached. Un­ der Justice Whittaker's direction, the Clerk of the Court would write to the Clerk of the Ar­ kansas Supreme Court and obtain the entire state court file, including all the briefs written when the case was argued in the Supreme Court of Arkansas. If there was any reference in Payne's briefs to the federal constitution, di­ rectly or indirectly, the Court would be satis­ fied that a federal question had been raised, and Justice Whittaker would write the deci­ sion reversing the conviction. Otherwise, the Justices would meet again to decide what to do. A few days later the Arkansas briefs were delivered to our chambers by the clerk. I opened the package and read Payne's briefs. THE LAW CLERK 49

Alan C. Kohn (op­ posite page, upper left) and Ken Dam (opposite page, bottom right' both clerked for Whit­ taker during the 1957 Term. Celia Barrett (right) was the Justice's secre­ tary. Justice Whit­ taker's advice to the author on fin­ ishing his clerk­ ship was uGet in a pocket, Alan." By that he meant join a law firm with a good trial practice.

initiate proceedings to determine Luis' sanity. The Chief Justice was stung. Perhaps he State law gave the warden the authority to felt uncomfortable defending a questionable, refuse a hearing on the matter if he felt there and rigidly formal, result, while Frankfurter was no cause to believe Luis was insane. Judi­ spoke passionately about due process and fun­ cial proceedings followed and the case even­ damental justice. Also, the Chief's home state tually came to the Supreme Court on the ques­ of California was being criticized. Warren had tion of whether the warden had an absolute been Governor and Attorney General of the constitutional duty to initiate a sanity hearing state and he believed that California was a before going forward with the execution. The leader in the humane treatment of prisoners. Court decided, 6-3, that the California law al­ He could not remain silent. He launched into a lowing the warden to refuse a hearing was con­ rebuttal from the Bench, something that was stitutional and that Luis could therefore be ex­ entirely unheard of and stunningly unprec­ ecuted. edented. The majority had announced its deci­ A majority of the Court decided not to sion and the dissenters had announced theirs. write an opinion but simply to announce the There was no such thing as a rebuttal. But the decision by reading a one line order in open Chief was not about to follow protocol. He said court. The Chief Justice made the announce­ that the criticism of his home state was unjus­ ment on Monday, the usual day for handing tified and that California's penal system was down decisions. Justice Frankfurter then modern and humane, not barbaric. launched into a biting oral dissent from the Frankfurter was furious. He literally spun Bench. California, he said, had a procedure that around in his chair. The Chief had no right to shocked the conscience and was intolerable in issue a rebuttal. It breached fundamental tradi­ a civilized society. It was profoundly abhor­ tions of the Court. After the Court rent to execute an insane man and Luis was when the law clerks had lunch together, entitled to a hearing on the question of his san­ Frankfurter's clerks said that the Justice had ity. The State of California would have on its returned to his chambers in a tizzy. conscience a barbaric execution. The Justice It happened that on that same day Justice was a great orator and made a compelling ar­ Whittaker was having a late afternoon cock­ gument worthy of the finest of trial lawyers. tail party. He had invited a number of people 50 JOURNAL 1998, VOL. 2 including all of the Justices and his two law tices would simply answer questions from the clerks. This would be the first time the Chief clerks as they were asked. Justice Frankfurter and Justice Frankfurter would be seeing each waited until all eighteen questions had been other after the brouhaha. I made sure I was on asked, and he then proceeded to answer them, time so that I could watch to see what hap­ pretty much in the order asked. It was a little pened. The Chief arrived and was his usual, bit like trial lawyers who memorize the names ebullient, friendly self. I began to wonder if of prospective jurors and then, without the jury Justice Frankfurter would show. He reportedly list before them, call the prospective jurors by did not attend social events because his wife name when they are questioning them about was an invalid and otherwise in poor health their qualifications to serve as jurors. and thus could not accompany him. But after a Justice Burton was suffering from while, the Justice did indeed arrive. As he Parkinson's disease, but was gracious enough walked into the middle of the living room, the to have lunch with us. He told us about the Chief seized the occasion. He shook Justice varied nature of his law practice in Cleveland, Frankfurter's hand energetically, gave him a Ohio. One clerk noted that the Justice did not huge Earl Warren "Hello, how are you, Felix," indicate that he had defended any criminal and then put his big ann around the diminu­ cases. The Justice replied that he had not tive Justice. Frankfurter politely returned the wanted to get into the criminal practice because hello and smiled. The Chief was a politician he did not like the clientele. I had not previ­ with a capital "P." ously thought much about that. I had enjoyed Justice Black would occasionally eat lunch studying criminal law procedure in Jaw school at the public cafeteria in the courthouse and and thought I might be happy as a criminal when any of the law clerks saw him going defense lawyer. Now I was not so sure. through the line, would jockey for a posi­ When Justice Douglas carne to lunch, he tion behind him, thereby earning an invitation indicated that President Roosevelt had wanted to sit with him. On one such occasion, a fellow him to be his running mate in the election of law clerk asked him if it was really true that he 1944. If that had happened, he would have had once been a member of the Ku Klux Klan. become President in 1945 when Roosevelt I was shocked by the question because I did died. When a law clerk asked him how he not know that indeed it was well known that would have selected a Justice of the Supreme he had once been a member and also because Court if he had become President, he said the of the seeming impertinence of the question. answer was easy. He would have appointed But Justice Black did not seem offended. He persons who would vote the way he wanted smiled, and in his southern drawl, replied that, them to vote. yes, when he was young and running for of­ Justice was undoubtedly the most fice in Alabama, he had joined the Klan. He gracious Justice on the Court. He even had all added that he would have joined B'nai B'rith the clerks, along with the Justices, to his home and the Knights of Columbus also if they would for a smaJl cocktail buffet. And his wife was have admitted him. even more gracious than he. I had been told In all, there were eighteen law clerks. The about southern hospitality, but now I was able Chief had three law clerks, Justice Douglas to enjoy it first-hand. had one, and the remaining Justices had two Justice Harlan was decent, honorable and apiece. The clerks had lunch together in their caring, besides being a fine Judge. There was own lunch room, and each Justice joined us no apparent guile to the man. When he called once a year. When Justice Frankfurter arrived, upon my Justice, it was because he cared about he played a little trick to show off his intel­ him, and not just about his vote. When the law lect and his professorial skills. Usually the Jus- clerks had a softbaII game Covington THE LAW CLERK 51

& Burling, the biggest law firm in Washing­ Life as a law clerk was more than just read­ ton, he showed up and pitched one inning ing and typing, It was also a lot of fun. Among dressed in his bow tie and felt hat. the eighteen law clerks were a hard core of Justice Brennan took his seat on the Su­ jolly jocks who loved sports. This led to a num­ preme Court only a few months before Jus­ ber of touch football and softball games on tice Whittaker, Little did any of the law clerks the Mall, and also basketball games on "the know that he would become one of the great­ one court above the Supreme Court"- the bas­ est of all Supreme Court Justices, I first met ketball court located above the Supreme Court him casually and briefly in a group during the courtroom. Spring of 1957, but did not see him again until Jon Newman was Wan-en's chieflaw clerk three months later when I took an infrequent and was in charge of inviting guests for lunch ride on the Justices' elevator. As I got in, he in the law clerk' s lunchroom. One guest was was standing there alone and quickly said, "Hi, Senator John F. Kennedy of Massachusetts who Alan, how are you?" I was totally nonplused, proved to be engaging, charming, rather sub­ How could he have remembered me') How dued and quite unassuming. Senator Wayne could he know my first name? How could he Morse of Oregon showed up with his waxed be so friendly? Certainly, that personal warmth mustache and unabashed liberalism, Former and disarming congeniality, plus his keen mind Secretary of State Dean Acheson attended and and old-fashioned hard work, helped make him opined that John Foster Dulles, the current such an extremely able and effective Justice Secretary of State, had at least one good at­ who was able to Court majorities for tribute: "Give Foster ajob to do and he will do constitutional points in which he strongly be­ it." Attorney General William Rogers encour­ lieved, aged us to become trial lawyers because so few

Justice John Marshall Harlan pitched for the Supreme Court law clerks in their game against Covington & Burling in the Spring of 1957. Whittaker described Harlan to the author as one of "God's anointed souls." 52 JOURNAL 1998, VOL 2 lawyers really wanted to try a case. 1. Lee the length of the sentences and by adding a short Rankin, the Solicitor General, was pleasant, final paragraph that, I felt, clarified the ratio­ quiet and a little bit dull. nale of the opinion. Mostly, the clerks spent their lunchroom The next morning I arrived at work early time talking about sports and about the cases and left the opinion on his desk. A short time that were being argued or opinions that had later he came into the office and said the revi­ been written but had not yet been filed. Justice sions were excellent. "Send it to the printer," Whittaker asked me and his other clerk, Ken he said. Whittaker was a kind, gentle person Dam, to read and comment on a draft of his who would not do harm to anyone, and he ob­ dissenting and concuning opinion in Byrd v. viously felt badly about this uncharacteristic Blue Ridge. After he read it, Ken asked me, outburst. At lunch, after the opinion had been "What are you going to do about this? It can­ distributed, the law clerks had no comments, not be circulated as it is. We'll get crucified at and I had in print the only paragraph I ever the lunch table." The sentences were way too authored for the Justice. long and there was no pithy explanation of how By August 1958, it was time for me to re­ the Justice had come to his conclusion. Since I turn to St. Louis. I had read thousands of cer­ had written the memorandum for the case, I tiorari petitions and briefs and typed many agreed, at Ken's insistence, to discuss the mat­ hundreds of memoranda. I was "clerked out." ter with the Justice. I wanted to practice law with my father, who "How did you like it?" the Justice asked. was dying of cancer, although still trying cases. "Ken and I think maybe it could use a little Justice Whittaker wished me well but gave me work," I mumbled. The Justice became quite some good advice - which I did not fully ap­ angry. He picked up the opinion and threw it preciate at the time. "Get in a pocket, Alan," he at me across his gigantic desk. "If you think said. By that he meant that I ought to go to a you can do better, take a crack at it and have it law fInn with a good trial practice. He cautioned back by tomorrow morning," he shouted so me that there were a lot of good lawyers starv­ loud that Celia Barrett, his secretary, could hear ing to death in Kansas City because they were it in the next room. Shaken, I slinked back to the not in a pocket. I eventually took that advice, office I shared with Ken and told him what had and I also took with me a memorable and trea­ happened. I edited the opinion by cutting down sured law-clerking experience. Wheaton v. Greenleaf*: A (Story) Tale of Three Reporters

Stephen R. McAllister

*33 u.s. (8 Green.) 420 (1834). For reasons that est days, often there were no written opinions, become apparent below, this is a fictional case and certainly the Court's decisions were not citation and case name. widely available nor easily accessible even to the bar, much less to the public. From an insti­ tutional standpoint, the regular and comprehen­ I. Introduction sive reporting of the Supreme Court's deci­ In the realm of American constitutional sions, along with the practice of issuing writ­ law, no institution is more important than the ten opinions in most, if not all, of its cases, Supreme Court of the United States. The were critical developments in establishing a Court's decisions interpreting the Constitution coherent body of constitutional law. Primarily are the law of the land. They are studied and responsible for the practice of the Supreme dissected by lawyers and scholars, praised and Court issuing written opinions were prominent disparaged by the press, and perhaps often not figures such as Chief Justice John Marshall and understood by the general publ ic. Although Justice Joseph Story. Playing perhaps just as millions of Americans probably have never important a role, however, were some of the read a Supreme Court opinion, it is not for lack prominent lawyers who served as the report­ of access. Law libraries and many other public ers of those opinions, men such as Henry libraries possess the volumes of the United Wheaton and, to a lesser degree, Simon States Reports, and the opinions are available Greenleaf. through computer databases and even on the Wheaton and Greenleaf were two of the Internet. most important and influential reporters of ju­ It was not always so. In the Court's earli- dicial decisions during the early years of the 54 JOURNAL 1998, VOL. 2

, .

1/ • II· [ .., (.". I ' " II ..... , I/. 'j , II· , Simon Greenleaf (below) was appointed to be Reporter of the Maine Supreme Court in 1820, a position he held until 1832 when he was named to the Royall Professorship at Harvard Law School (above). Justice Joseph Story was instrumental in Harvard's decision to hire the prominent Maine lawyer, and the two of them oversaw t he law school's rise to prominence.

American republic. Wheaton was the third re­ Story, Wheaton, and Greenleaf were all three porter of decisions for the Supreme Court, members of a loosely knit group of lawyers while Greenleaf was the first reporter of the who were actively promoting the formal and Maine Supreme Court. The two men never accessible reporting of judicial decisions in the squared off in a court battle, however, and there 1810s and I 820s. In this day and age, in which is no such case as Wheaton v. Greenleaf the Federal Reporters are now on their third Instead, the two Supreme Court Report­ ers who battled over the copyright to reported Supreme Court opinions were Wheaton and Richard Peters, Jr., the fourth Supreme COUJ1 Reporter. In their famous dispute, Wheaton v. Peters,1 the Supreme Court established that the copyright to opinions of the Court belongs not to the individual reporter who is responsible for pu bli shing them but to the people of the United States. Less well-known is that, but for a matter of two weeks in the fall of 1826, Simon Greenleaf might perhaps have been pitted against Henry Wheaton in the epic battle over the rights to Supreme Court opinions. It is well documented that Justice Story was perhaps the decisive factor in the hiring of Wheaton as the CO UJ1 'S third reporter in 1815, and that he maintained a close relationship with Wheaton throughout the reporter's tenure. TALE OF THREE REPORTERS 55 series, with volumes numbering in the thou­ tunity by a mere two-week delay in expressing sands, and the United States Reports volumes his interest in the position to Justice Story. number in excess of five hundred, it may be This commentary will examine difficult to imagine the case reporting situation Greenleaf's background, his relationship with during the early years of the Supreme Court's Justice Story, and their mutual interest in the history. At the beginning of the nineteenth cen­ formal, regular, thorough, and accessible re­ tury, a regular, methodical, consistent, and thor­ porting of court decisions. Their goal was to ough system of case reporting simply did not develop the law as a science, to enhance its exist in any American jurisdiction. The Su- stature and prestige, as well as perhaps their Court of the United States was no ex­ own. They viewed the reporting of decisions ception, Justice Story, however, actively sought as a critical component in achieving that goal. to irnprove the situation when he joined the Although it is speculation, an argument can be Indeed, he was perhaps the critical early made that when Greenleaf lost out to Peters, champion of regular, thorough, and who by all available evidence appears to have of Supreme Court dec i- been more interested in turning a profit than producing scholarly reports or achieving any Thus, when Wheaton made clear in 1826 other higher purpose, the Supreme Court soon resign the position of Su- missed a golden opportunity to enhance its liPnn,-tpr it was not surprising that stature and promote its decisions in a the highly respected reporter of the sional and dignified fashion. Court since 1820 and good This essay will also briefly recount the friend of Justice Story, should seek Story's replacement of Wheaton by Peters, and support in securing the position of Supreme Greenleaf's missed opportunity. The purpose Comi Reporter, which was filled by a vote of of this discussion is to place Greenleaf's Octo­ the Justices. chance, and perhaps by ber 7, 1826, letter to Story in historical context. virtue of the delay in communications between The commentary concludes by following up Washington and Maine, Richard Peters, Jr., on post-1826 developments in the careers of contacted Story first and ultimately succeeded Greenleaf, Wheaton, and Peters. Although he Wheaton to become the fOLllih Reporter of the lost out to Peters, it appears that Greenleaf's Supreme Court of the United States, with professional life suffered little for the missed Greenleaf narrowly missing out. opportunity of becoming the Supreme COLlli Greenleaf contacted Story by letter dated Reporter in 1826. The Court itself, however, may October 7, 1826, expressing interest in the have been the ultimate loser in this story, at Reporter position. That letter, which is the gen­ least from an institutional perspective. esis for this commentary, is published for the first time below. Unfortunately for Greenleaf, Simon Greenleaf and and to the dismay of Story, Peters already had Story successfully solicited Story's support for his A. Simon GreenleaP candidacy for Reporter by a letter dated Sep­ tember 22, 1826. It is clear from Justice Story's Simon Greenleaf was born on December letter responding to Greenleaf's inquiry,2 that 5, 1783, in Newburyport, Massachusetts, a had Greenleaf contacted Story first, he un­ town in which his ancestors had first settled in doubtedly would have had Story's critically 1635. When Greenleaf was seven, his family important support for the Reporter position. moved to New Gloucester, Maine, but Thus, one of the premier, if not the preeminent, Greenleaf remained in Newburyport with his legal reporters of the early nineteenth century grandfather to take advantage of the superior missed perhaps his grandest reporting oppor- educational opportunities available there. In 56 JOURNAL 1998, VOL. 2

Newburyport, he received a classical education sor, Greenleaf was the chief academic officer in the Latin School, which he attended until of the law school and, according to the cata­ he was sixteen. logue. gave "instruction in the common law, In 1801, Greenleaf entered the law office and all other juridical studies."5 In 1848, per­ of Ezekiel Whitman (who later served as the haps due to failing health, Greenleaf resigned Chief Justice of the Maine Supreme Court and was appointed an emeritus professor. He (1841-1848)). He was admitted to the bar in died suddenly in Cambridge on October 6, 1806 and thereafter engaged in the private prac­ 1853. tice of law. In 1816, Greenleaf, who was allied with the Federalist Party, ran unsuccessfully for B. Justice Story and Simon Greenleaf the Massachusetts Senate. In 1818, he relocated to Portland, Maine. Apparently, Justice Joseph Story and Following Maine's admission to the Union Simon Greenleaf first became acquainted in as a atate, Greenleaf was appointed the first 1819, when Story was riding circuit and hear­ Reporter for the Maine Supreme Court in 1820. ing cases in Portland, Maine. Their earliest Greenleaf in 1820 also was elected a member correspondence apparently began in connec­ of the first Maine legislature and served one tion with Greenleaf's efforts to compile and term. He held the Reporter position until 1832. publish an annotated edition of Henry Hobart's In addition to his reporter duties. he continued Reports (1671),6 and a work titled A Collection to practice law and is reported to have had one of Cases OverruJed, Denied, Doubted or Lim­ of the largest practices of any member of the ited in Their Application (1821).1 It appears that bar in the State of Maine during the time he Justice Story did not inspire Greenleaf's initial was Reporter. interest in the reporting of court decisions but In 1833, on the strong recommendation of that, rather, Greenleaf had an independent in­ Justice Story, Greenleaf was named to the terest that coincided with Story's interests and Royall Professorship at the Harvard Law that Story actively encouraged and supported. School. At the time, he may have been the most Once Greenleaf assumed the position of prominent and well-known member of the the first Reporter for the Maine Supreme Court Maine bar. Greenleaf quickly became an ac­ in 1820, and perhaps even in 1819 when he tive and prominent member of the Harvard law reported some of Story's circuit court deci­ faculty. Along with Story, he is considered one sions, he became a member of an unofficial of the leading forces behind the Harvard Law group, led by Justice Story, which strove to School's rise to prominence. Upon Story's promote and improve the reporting of court death in 1845, Greenleaf assumed the Dane Pro­ decisions.s This group included, or eventually fessorship, which Justice Story had held from would include, Chief Justice John Marshall; its inception. Justice Story; Justice Bushrod Washington; While on the Harvard faculty, Greenleaf Philadelphia federal circuit judge Joseph continued to engage in private practice at least Hopkinson; treatise authors Nathan Dane; occasionally, including appearing before the James Kent; David Hoffman; Timothy Walker, Supreme Court of the United States. At the and Peter DuPonceau; and court reporters time, the professional salary he received from Henry Wheaton, William Johnson, Richard Pe­ Harvard was too small to sustain his large farn­ ters, Jr., John Gallison, William Mason, and ily.4 Greenleaf published a number of works, Simon Greenleaf.9 the best known of which is A Treatise on the The group's goals were to further "the Law of Evidence, volumes I (1842),2 (1846), publication and dissemination of judicial opin­ and 3 (1853), a significant work in nineteenth­ ions; encourage the production of digests, col­ century legal scholarship. As Royall Profes- lections of documents, and treatises; secure TALE OF THREE REPORTERS 57 judgeships, reporterships, and professorships Wheaton soon would be resigning the Supreme for persons committed to the scientific study Court Reporter position, Greenleaf was of law; and write unsigned reviews of each emboldened to approach Story about the pos­ other's published works."10 As one historian sibility of succeeding Wheaton. puts it, "[flor Story and Greenleaf, compiling digests of English cases, repolting state judi­ cial decisions, writing treatises, giving lectures, III. A Missed Opportunity and deciding cases were all pursuits of one A. Simon Greenleaf's letter devoted to legal science."ll Moreover, "Story, Apparently encouraged by Justice Story's Greenleaf, and their juristic associates were effusive praise of his reporting efforts for the claiming the authority to articulate the prevail­ State of Maine, Simon Greenleaf wrote the fol­ ing rules and doctrines and to formulate the lowing letter to Story in October 1826,20 inquir­ principal legal issues of their times. They were ing whether Story might support him for the creating and publicizing their interpretations of position of Supreme Court Reporter if Henry American law, and in the process enhancing Wheaton were to resign: their own authority and the image of the their profession." 12 Portland Oct. 7, 1826 Story actively cultivated the friendship of those who reported his Supreme Court and cir­ cuit court decisions. Apparently, Story and My Dear Sir, Henry Wheaton, the third Supreme Court Re­ Since you mentioned at Wiscasset the porter (1816-1827) who published twelve vol­ probability of Mr. Wheaton's appointment to umes of the United States Reports, 13 were very the office of District Judge of New York, it close. During Wheaton's first few years as has occurred to me that with the aid of friends Reporter, Story nimself frequently wrote the I might possibly hope to succeed him in that of commentary or notes to accompany his own Reporter. And your past kindness emboldens and other reported decisions of the Supreme me to ask that in the event of such a vacancy, Court, although that fact was not disclosed in if there are no stronger claims, you would men­ the Reports themselves. 14 Moreover, from tion my name to the President as a candidate 1815-1817, Story proposed, drafted, and pro­ for the office If any other application, in moted legislation that would establish the Re­ your judgment, would be useful, I shall esteem porter as a salaried official of the Court, rather it an additional favor if you would take the than essentially an independent operator. 15 The trouble to suggest it. measure finally passed Congress in 1817, pro­ The brief in the case of Williams v. Reed viding Wheaton with an annual salary of will be forwarded as soon as Mr. Orr returns $1,000. 16 Story and Wheaton's close relation­ from Augusta Court. ship apparently was the cause of some friction I am, Dear Sir, between Story and at least one rival on the Very respectfully truly Bench, namely Justice William JohnsonY Your obliged and faithful But the most impressive and distinguished legal scholar, and "(p]erhaps the most impor­ Simon Greenleaf (Signed) tant to Story of all the reporters he cultivated was Simon Greenleaf ...."18 Story repeatedly The fact that Greenleaf's letter was too praised Greenleaf's efforts in producing the late has been documented previously. A full Maine Reports, even encouraging him to title two weeks earlier, Richard Peters, Jr.,21 had them "Greenleaf's Reports."'9 Thus, it was no written to Story (and most of the other Jus­ surprise that, upon hearing rumors in 1826 that tices) soliciting his support for Peters suc- 58 JOURNAL 1998, VOL. 2

was actively recruiting Greenleaf for the position, or simply mentioned Wheaton's situ­ ation in casual communication. is not known. The letter from Greenleaf and Story's pained response both suggest the latter, although it would not be difficult to imagine Story pur­ posefully planting a seed in Greenleaf's mind by casually commenting that Wheaton was unhappy and desired to leave the Reporter po­ sition. Second, Greenleaf apparently misunder­ stood the process by which a new Reporter would be selected, although given the circum­ stances he can hardly be faulted. Greenleaf's letter indicates that he thought the position in­ volved presidential appointment, which it does not and never has. Rather, the Reporter (prob­ ably correctly) has been perceived as a mem­ Justice Story was very close to Henry Wheaton, ber of the judicial branch. Lacking the Article labove) the third Supreme Court Reporter 11816- 18271, and often wrote the commentary to accom­ III status of a federal judge, a position that pany his and other Justices' reported decisions. would require presidential appointment and Senate confirmation, the Reporter has never ceeding Wheaton as Supreme Court Re­ been so formally selected. (Had Greenleaf been porter. Story responded positively a few days correct in his belief, the President in office in later, thereby precluding him from support­ 1826 was John Quincy Adams.) The actual se­ ing Greenleaf after receiving the Maine lection process, at least in hiring Wheaton and reporter's subsequent enquiry regarding the subsequent Reporters in the nineteenth cen­ position. This situation apparently pained Story, tury,27 involved a simple vote among the Jus­ who assured Greenleaf that the choice between tices. Thus, though apparently unknown to Peters and Greenleaf easily would have been Greenleaf, his direct solicitation of Story was in fal;or of Greenleaf had Story known of his precisely the manner in which to seek the po­ interest.24 Story also appears to have promised sition. Greenleaf that he would seek to compensate Third, the case to which Greenleaf refers. him for this missed opportunity in some way Williams v. Reed, is a Maine case that Story in the future. 25 decided as circuit justice in 1824. The case is in essence a legal malpractice case involving B. A Few Observations about the an alleged conflict of interest that the attor­ letter ney-defendant did not disclose to his client, the plaintiff. Greenleafhimself appears to have Greenleaf's letter contains several inter­ represented the plaintiff (the former client), esting features. First, it appears that Story him­ along with William Mason (another member self may have tipped Greenleaf off to the pos­ of Story's unofficial group promoting the re­ sibility that Wheaton would resign in order to porting of decisions and legal science). The take a position as a federal judge. Although case is reported, and by none other than Will­ the judgeship for Wheaton did not materialize iam Mason.28 Although such relationships in 1826, he was appointed to the position of among the attorneys, the judge deciding the Minister to Denmark in 1827.26 Whether Story case, and the reporter of decisions would no TALE OF THREE REPORTERS 59 doubt raise eyebrows today,29 it appears that setts had granted a charter to Harvard Univer­ Story showed no favoritism for his friends and sity. To compensate Harvard for effectively los­ allies in this particular case. Indeed, he ulti­ ing the ferry service charter, Massachusetts mately dismissed the claim of Greenleaf & (which had chartered the Charles River Bridge, Mason's client30 too) required that an annual payment be made to Harvard from the Charles River Bridge's rev­ IV. Postscript enues. Some years later, Massachusetts char­ tered a second bridge virtually alongside the A. Simon Greenleaf Charles River Bridge. Unlike the Charles River Greenleaf's professional career was hardly Bridge, which was a toll bridge and was char­ eclipsed when he missed the opportunity to tered to be so until approximately 1856 (later succeed Wheaton as the Supreme Court Re­ extended by thirty the Warren Bridge porter. Indeed, Justice Story made good on his - as the competitor bridge was to be known promise to remember Greenleaf "in better sea­ - was to be toll free when the costs of con- son." In 1829, Greenleaf informed Story that struction had been recovered or, in any event, he was relinquishing his position as the reporter not more than six years after it was built. of the decisions of the Maine Supreme Court Not surprisingly, the Charles River Bridge and he inquired of Story whether the Supreme Company sued the Warren Company, arguing Court Reporter's position might again become that the State of Massachusetts effectively had available.31 At that time, Story assured abrogated its charter with the Charles River Greenleaf that it was possible Peters might not Bridge Company in violation of the be Reporter much longer. Constitution's Contract Clause, and seeking Three years later, however, with Peters a restraining order against construction of the finnly entrenched as the Reporter, Story wrote Warren Bridge. Unsuccessful in the Massachu­ to Greenleaf to infonn him of "events" setts state courts, the Charles River Bridge that might bring Greenleaf "back to Massachu­ Company appealed to the Supreme Court of setts,"3) These "events," as it turned out, were the United States, which heard arguments in the death in 1833 of John Ashmun, one of the case in 1831, Due to a combination of judi­ Story's colleagues on the Harvard Law faculty cial vacancies, absences, and disagreements, and the holder of the Royall Professorship. At however, the case went undecided for six more the urging of, and with the strong support of years, a situation Chief Justice Rehnquist would Story, Greenleaf was elected to the Royall Pro­ never tolerate today. fessorship in April 1833.34 Greenleaf held the Finally, in 1837, the case was reargued position until he took emeritus status in 1848. before the Supreme Court. The Charles River He and Story remained close friends and pro­ Bridge Company retained Daniel Webster to fessional colleagues until Story's death in make its case,38 and the Warren Company hired 1845,35 none other than Simon Greenleaf to defend it,39 Not all of Greenleaf s professional accom­ Justice Story, who throughout the was plishments following his unsuccessful bid to a member of the Harvard Law faculty, partici­ succeed Wheaton were in the realm of pated fully in the case and decision, and obvi­ academia. Perhaps most notably, he repre­ ously was an important vote on the Court. Story sented the Warren Company in a suit brought apparently was greatly impressed by the per­ against it by the Charles River Bridge Com­ formances of the two prominent advocates, pany,36 The Charles River Bridge opened in 1786, both of whom he counted as good friends. connecting Boston and Charlestown. It essen­ Ultimately, Story voted for Daniel tially replaced a ferry service that previously Webster's client, the Charles River Bridge Com­ existed and for which the State of Massachu- pany, and indirectly thus for Harvard, too, which 60 JOURNAL 1998, VOL. 2 stood to lose its annual payment from the moved to condense and sununarize all of the Charles River Bridge Company if the suit was volumes of the Supreme Court Reports lost. In Charles River Bridge v. Warren through 1827 - including Wheaton's volumes Bridge, 36 U.S. (11 Pet.) 420 (1837), Story to make them cheaper and thus more widely was on the short end of the decision, however, available (and not by coincidence to make which came out 5-2 in favor of the Warren more money for himself). Although in a fore­ Company. Chief Justice Taney wrote the opin­ word Peters expressly disavowed any intent ion for the Court, and established the impor­ to do harm to his predecessors' work product tant propositions that State charters will be or to detract from the desirability of Wheaton's strictly construed against the recipient, and that volumes,4} sales of the Wheaton volumes the Contract Clause will not be as plummeted when the Peters condensed version a significant restraint on the states' ability to became available at a fraction of the original act for the public welfare. The Court applied cost of genuine Wheaton volumes. Peters' ac­ these principles to rule in the Warren ti vity did not initially provoke much of a reac­ Company's favor, even though the new legis­ tion from Wheaton, who apparently was con­ lation had a clear and adverse effect on the fident that the mere threat of a lawsuit would contract the State of Massachusetts had with make Peters back down. When that prediction the Charles River Bridge Company. Story was proved wholly incorrect, an infuriated relegated to a majestic, learned dissent of more Wheaton took a leave of absence from his than 31,000 words that is almost fifty percent position in Denmark and returned to Phila­ longer than the other opinions in the case com­ delphia where he and his publisher filed suit bined:o against Peters, seeking a permanent injunc­ tion against the sale of the condensed vol­ B. Henry Wheaton & umes and requesting an accounting of the Richard Peters, Jr. profits Peters made from the sales of those In the end, Greenleaf probably fared bet­ volumes.44 ter than either Wheaton or Peters after 1826. After some delay, the federal circuit court As mentioned previously, Wheaton never ob­ in Philadelphia dismissed Wheaton's suit,45 The tained the judicial positions he had sought, in­ judge who dismissed the case was none other cluding a federal judgeship or a seat on the than Joseph Hopkinson, Story's friend and a Supreme Court itself. Instead, he settled for the member of the Justice's unofficial group pro­ post of Minister to Denmark. Nor did Peters moting the reporting of judicial decisions. In ever manage to make the Supreme Court another interesting coincidence, or perhaps an Reporter's position as profitable as he prob­ illustration of the close-knit nature of the fed­ ably hoped when he actively campaigned for eral Bench and Bar in the 1830s, Hopkinson the position in 1826 and eventually obtained it had assumed the federal circuit court position in 1827. Indeed, he may not have done even as previously held by Peters' father. well as Wheaton had during his tenure," al­ Wheaton appealed to the Supreme Court though in part his lack of financial success was and was represented by Elijah Paine and Daniel due to congressional rejection of his efforts to Webster. The Court upheld Peters' circuit court establish a subscription for 1,250 victory in all significant respects in 1834.46 The copies of each volume of his reports.42 Supreme Court's decision in Wheaton v. Pe­ But Wheaton was not done with the Su­ ters established bedrock principles of Ameri­ preme Court in 1827. Rather, he and Peters can copyright Jaw. These principles include that were to sq uare off in one of the classic cases of (I) the federal authority over copyright law, as the first half of the nineteenth century. After embodied in Article T, §8, is supreme over assuming the Reporter 's position, Peters copyright protection under state common Jaw, TALE OF THREE REPORTERS 61

(2) federal statutory copyright Jaw therefore supplants state common law, and (3) the copy­ right to the Supreme Court's written opinions belongs to the American people, not to any in­ dividual Supreme Court Reporter.47 The Wheaton v. Peters decision prompted Wheaton, who proved to be a most ungracious loser, to lambaste publicly both Chief Justice Marshall and Justice Story.48 Although some factual questions remained to be decided, such as whether Peters had infringed on Wheaton's potential copyright of Wheaton's abstracts of the Court's opinions, the litigation dragged on for so long that both Wheaton and Peters died before its conclusion. Their estates finally settled the litigation in 1850 for $400.49 Wheaton's fortunes changed for the bet­ ter, however, following the Court's decision. He returned to Europe, published a well re­ Simon Greenleaf's letter to Justice Story arrived spected work on international law, and even­ too late to persuade himto support his nomination tually became the minister to Prussia.50 After for Court Reporter. Richard Peters, Jr., (above) had twenty years in diplomatic service, he returned already solicited Story and the other Justices and had managedtoobtain a commibnentfrom Story to to the United States in 1847 and was prepar­ support his candidacy. ing notes for a lectureship at Harvard when he died in 1848.51 Although Peters essentially won his copy­ move angered Story who considered resign­ right battle with Wheaton, he, like Wheaton, ing over the incident, but ultimately let it ended his association with the Supreme Court pass. 53 on an ignominious basis. Apparently lacking the strength of Wheaton's intellect, scholarly C. An Opportunity Lost? inclinations, or attention to detail (and appar­ ently not receiving the assistance from Story Although it is necessarily speculation, a that had so benefitted Wheaton's reports and plausible argument can be made that the Su­ upon which Wheaton had so heavily relied), preme Court as an institution suffered by never neither the Justices nor the bar ever regarded having Simon Greenleaf serve as one of its Peters' reports as highly as Wheaton's. Even­ Reporters during a critical period in establish­ tually, Peters lost the confidence of most of ing the Court's legitimacy. The events follow­ the Justices. As many of the Justices who had ing the selection of Peters in 1827, as well as selected him in ] 827 were replaced on the other available evidence, strongly support such Bench in the 1830s, he ultimately found him­ an argument. Greenleaf's extensive and lauded self with little support among the Justices, experience as the Reporter for the Maine Su­ except for Justice Story who remained loyal preme Court prior to Wheaton's departure to Peters to the end. While Story was absent from the Supreme Court gave him more than from the Court in 1843, a majority of the Jus­ adequate training for the position. Moreover, tices summarily dismissed Peters and hired unlike Peters, he was an accomplished private Benjamin Howard as the fifth Reporter of the lawyer, in addition to performing his reporter Supreme Court of the United States.52 The duties. Peters' main qualification, on the other 62 JOURNAL 1998. VOL. 2

hand, appears to have been the fact that his fa­ I t is no mean honor to America that ther was a federal judge in Philadelphia at the her schools of jurisprudence have pro­ time Wheaton resigned. duced two of the first writers and best Greenleaf also appears to have had schol­ esteemed legal authorities of this cen­ arly talents that Peters simply did not possess. tury - the great and good man, Judge Story apparently recognized Greenleaf's talent Story, and his worthy and eminent as­ very quickly, repeatedly praising Greenleaf's sociate Professor Greenleaf. Upon the work for the Maine Supreme Court and caus- existing Law of Evidence (by one writer to observe that "[p]erhaps the Greenleaf), more light has shone from most important to Story of all the reporters the New World than from all the law­ he cultivated was Simon Greenleaf ...."54 In­ yers who adorn the courts of Europe,56 deed, Greenleaf's three-volume Treatise on the Law of Evidence, published from 1842- A well-known mid-nineteenth century 1853, earned him national and international bookseller, John Livingston, recognized the stature as a scholar. For example, in tes­ importance of Greenleaf s scholarship when he timonials included in one of Greenleaf's final compiled a catalogue of legal works that be­ works,55 he was praised in the following terms: longed in the library of any American lawyer57 Because the complete list was relatively ex­ Author of a treatise on the law pensive at the time, Livingston also developed of evidence, which has become a a shorter subset of the absolutely essential classic in the hands of the profession works.58 The works of Justice Joseph Story are which he adorns, and teacher in one found in abundance. Also found are the publi­ of the Law Seminaries which do cations of Story's Harvard colleague, Simon honor to our country in the eyes of Greenleaf, the first great American evidence Europe, he brings rare qualifications expert.59 As for Richard Peters, Jr., no glowing for the task he assumes. testimonials appear to exist. Although he ap­ parently was a capable Reporter, and in some * * * * rp~,,,p,..t~ quite enterprising, he never garnered the respect accorded to his or It is the production of an able and Greenleaf. In 1826, Peters was well-connected. profound lawyer, a man who has grown He had for several years reported decisions of gr[e]y in the halls of justice and the his father (a federal judge in Philadelphia) and schools of jurisprudence; a writer of the decisions of Bushrod Washington as a Circuit highest authority on legal subjects, Justice. He also could count himself among whose life has been spent in weighing Story's circle of friends and professional col­ testimony and sifting evidence, and leagues who generally supported the promo­ whose published opinions on the rules tion of law as a science, including the of evidence are received as authorita­ ing of decisions. And Peters did, after all, tive in all the English and American tri­ quickly obtain Story's support in his success­ bunals; for fourteen years the highly ful quest to become the fourth Supreme Court respected colleague of the late Mr. Jus­ Reporter. Nonetheless, his ignoble firing by the tice Story, and also the honored head of Justices in 1843 suggest, he was not without the most distinguished and prosperous faults. school of English law in the world. In the end, Simon Greenleaf probably fared better and accomplished as much or more than :I< * * * any Supreme Court Reporter of his era, includ­ ing Wheaton and Peters. Had Greenleaf become TALE OF THREE REPORTERS 63

the Supreme Court's fo urth Reporter, perhaps S White, supra note 6, at 105. the Court of the 1830s and 1840s would have 9 /d. Examples of this brotherhood include Hopki nson's appointment to a federal circuit court judgeship in Phi la­ acquired even greater stature, or perhaps its delphia on the strong recommendation of Story, see J. Story opinions and official reports would have been to J. Hopki nson, Mar. 8, 1826, in Joseph Hopkinson Pa­ even more respected and desired by the prac­ pers, Hi storical Society of Pennsylvania (cited in G. Ed­ ticing bar and the nation . We will never know. ward White, supra note 6, at 105 n. 125), and Dane's cre­ ati on of a chaired professorship in law at Harvard on the *A uthor's Note: This research was supported condition that Story occupy the chai r. See William W. Story, Life and Letters of Joseph Story, Vol. II, at 1-7. in parI by the General Research Fund of the 10 White, supra note 6, at 105 . For a comprehensive review University of Kansas. The author thanks of the development of the Supreme Court Reporter posi­ Michael H. Hoeflich, Dean, John H. and John tion from its beginning through the term of Richard Peters, M. Kane Professor of Law, and Courtesy Jr., and the reporting of Supreme Court decisions, see Craig Prof essor of History, University of Kansas Joyce, "The Ri se of the Su preme Court Reporter: An Insti ­ tutional Perspective on Marshall Court Ascendancy," 83 School of Law, and Martin S. Flaherty, Mich. L. Rev. 129 1 ( 1985). For a more lighthearted discu s­ Professor, Fordham School of Law, for sion of the personalities and work of the early Supreme reviewing and providing suggestions on an Court Reporters, see Gerald T. Dunne, "Proprietors-Some­ earlier draft of this commentary. Th e author times Predators: Early Court Reporters," Supreme Court also gratefully acknowledges the research Histo ri cal Society, Yearbook / 976, 6 1. assistance of Holly Pauling. " White, supra note 6, at 108. " /d.

IJ Joyce, supra note 10, at 1292 n. 7. . Endnotes " /d. at 1333-37 . 15 /d. at 1342-46. '33 U.S. (8 Pel.) 59 1 ( 1834). I. /d. at 1347.

' J. Story to S. Greenleaf, Oct. 10, 1826, Simon Greenl eaf 17 Dav id T. Pride, "Joseph Story" in The Supreme Papers, Harv ard Law School Library (quoted and cited in Court Justices, Illustrated Biographies, 1789- G . Edward W hi te, Oliver Wendell Holmes Devise 1995, at 89 (Clare Cush man, ed., 2d ed. 1995); White, History of the Supreme Court of the United supra note 6, at 393-95. States: The Marshall Court and Cultural 18 White, supra note 6, at 106. Change, ]815-35, Vol. 3-4, p. 107 n. 137 ( 1988». 19 /d. at 107.

J The following brief biographical sketch of Sim on 20 The leiter is now in the Uni versity of Kansas School of Greenleaf is drawn from three sources : The National Law Library.

Cyclopaedia of American Biography, Vol. VII , 360-61 21 Peters was th e son of a dis tinguished Philadelphia fed ­ ( 1897); Dictionary of American Biography, Vol. VII, eral judge and had been engaged in reponing decisions, 583-84 (Johnson & Malone, eds. 1946); Who Was Who in cluding those of hi s father and of Bushrod Washi ngton In America 1607-1896, p. 218 (1963). Professor Alfred as a circuit justice, fo r several years prior to 1826. White, S. Konefsky , of the State University of New York at Bu f­ supra note 6, at 404. falo School of Law, is currently at work on a biography " R. Peters, Jr., to J. Story, Sept. 22, 1826, Ric hard of Greenleaf. Peters Papers, Hi s torica l Society of Pennsylvania , Harvard Law School Association, Centennial History (ci ted in White, supra nOle 6, at 405 n. 101). of the Harvard Law School 1817-1917, at 70 (1918). 23 J. Story to R. Peters, Jr., Sept. 25, 1826, Richard 5 Printed in "Law Institution of Harvard University," Peters Papers, Historical Society of Pennsylvania 11 Am. Jllr. & L. Mag. 259, 260 (Jan. 1834). (ci ted in White, supra note 6, at 405 n. 102).

• G. Edward White, Olive r Wendell Holmes Devise 24 White, supra note 6, at 405 and n. 103; Joyce, supra History of the Supreme Court of the United note 10, at 1355 n. 388. States: The Marshall Court and C ultural 25 Story closed hi s letter responding to Greenleaf with Change, 1815-35, Vol. 3-4, p. 106 and nn . 131-133 th e suggestion that "I will remember you hereafter in ( 19 88). better season." J. Story to S. Greenl eaf, OCI. 10, 1826 7 Charles Warren , History of the Harvard Law (cited in White, supra note 6, at 107). School, Vol. I, p. 481 (1908); R. Kent Newmyer, Supreme 2. Joyce, supra note 10, at 1350. Court Justice Joseph Story: Statesman of the Old Repub­ 27 There apparently is no record of the manner in which the lic 260 (1985). first and second Supreme Court Reporters (Alexander 64 JOURNAL 1998, VOL. 2

James Dallas and William Cranch, respectively) assumed ful Arts, by securing for limited Times to Authors and In­ the position. See id. at 1307 ("it seems most likely that ventors the exclusive Right to their respective Writings Cranch, like Dallas, appointed himself to report the deci­ and Discoveries," U.S. Const., ar!.l, §8, and Congress did sions of the Court"). enact federal copyright statutes, enforcing copyright pro­ ,. 29 Fed. Cas. 1386, n. I (1824) [3 Mason 405]. tection appears to have been a serious problem in the first

29 This combination of relationships and the potential con­ half of the nineteenth century. Interestingly, in 1836. not flicts of interest pale in comparison to the conflicts that long after the decision in WhealOn v. Pelers. British author appear to have been ignored in Charles River Bridge v. Harriet Martineau wrote to her "dear kind friend," Justice Warren Bridge, 36 U.S. (II Pet.) 420 (1837), discussed be­ Joseph Story, imploring him to use his "influence" to per­ low. suade Congress to pass stronger copyright laws, espe­

)0 29 Fed. Cas. at 1394. cially to protect British authors from Ameri can publishers

)I White, supra note 6, at 107. "cutting up" their works for sale. Martineau's letter of No­ )21d. vember 8, 1836, to Story concerning the state of American )) Id. copyright laws is housed in the manuscript coll ection of

)4 Id. at 107-08; Gerald T. Dunne, Justice Joseph the Spencer Research Library at the University of Kansas.

Story and the Rise of the Supreme Court 320 48 Dunne, supra note 34, at 326-27; Joyce, supra note 10, at ( 1970). 1390; White, supra note 6, at 422-23.

35 See, e.g., Newmyer, supra note 7, at 260-62 (describ­ 49 Joyce, supra note 10, at 1385. ing their relationship as prominent members of the 50 Dunne, supra note 10, at 66. Harvard Law Faculty). 51 Id.

36 For a more complete description of Charles River 52 White, supra note 6, at 426. Bridge v. Warren Bridge, 36 U.S . ( II Pet.) 420 ( 1837), 5) Dunne, supra note 10, at 66.

and the surrounding circumstances, see Dunne, supra 54 White, supra note 6, at 106.

note 34, at 357-63. 55 Late in his life, Greenleaf undertook a very different, if

17 Art. I, § 10 ("No State shall ... pass any ... Law not bizarre, project: to examine the "Testimony of impairing the obligation of Contracts .... "). the Evangelists" (by which he was referring to Mat­

38 See Charles River Bridge v. Warren Bridge, 36 U.S. thew, Mark, Luke and John) and "the tri al of Jesus" in (II Pel.) 420, 514 (1837). the li ght of modern rules of evidence, apparently for 39 Id. at 461. the purpose of ascertaining whether or not the stories

40 For a detailed discussion of the case and Justice Story' s and events related in the Gospels are proved by the dissenting opinion, see James McClellan, Joseph Story "evidence." See Simon Greenleaf, The Testimony of and the American Constitution 215-226 (1971), and the Evangelists Ch. I, §3 ("The present design, how­ Newmyer, supra note 7, at 225-235. ever, is not to enter upon any general examination of

41 Joyce, supra note I 0, at 1362 (suggesting that Peters the evidences of Christianity, but to confine the in­ probably netted under $1 ,500 per year, less profit than quiry to the testimony of the Four Evangelists, bring­ Wheaton turned even in some of hi s worst years). ing their narratives to the tests to which other evi­ 42 1d. at 1362-65; White, supra note 6, at4 13-14. dence is subjected in human tribunals.").

43 See Dunne, supra note 34, at 325. 56 See Teslimonials contained in Simon Greenleaf, Tesli­

44 Wheaton's predecessors, Alexander James Dallas and mony of the Evangelisls (Soney & Sage, 1903). William Cranch, were never parties to any litigation 57 See M.H. Hoeflich, "Legal History and the History against Peters. Dallas had died in 1817, and no one as­ of the Book: variations on a Theme," 46 U. Kan. L. serting any interest in Dallas' volumes ever contacted Rev. 415,426-28 (1998) (d iscussing John Livingston, Peters. Joyce, supra note 10, at 1367 n. 428. Cranch Catalogue of Law Books Comprising a Catalogue of a agreed to settle without litigation in return for fifty Select Law Library Including the Dates and Prices of copies of the condensed reports. Id. at 1369. the Latest Editions of the Most Approved Works in

45 WhealOll v. Pelers, 29 Fed. Cas. 862 (C.C.E.D. Pa. 1832) Every Department of the Law, Carefully Revised and (No. 17,486). Corrected up to March, 1856 (New York, Livingston 46 Whealon v. Pelers, 33 U.S. (8 Pet.) 591 (1834). 1856».

47 Although the Constitution expressly grants Congress 58 Id. At 428-29 the power "(t]o promote the Progress of Science and use- 59 Id. at 429. Race, Marriage, and the Supreme Court from Pace v. Alabama (1883) to Loving v. Virginia (1967)

Peter Wallenstein

On June 12, 1967, Chief Justice Earl War­ in 1967-punctuated the Civil Rights move­ ren delivered the unanimous opinion of the Su­ ment. It brought to an end nearly three centu­ preme Court of the United States in a decision ries of the kind oflegislation that had made the that transfonned American law on interracial Lovings criminals in the first place. marriage. The Chief Justice began by observ­ What was the crime of interracial marriage, ing, "This case presents a constitutional ques­ of miscegenation? What related kinds of ques­ tion never [before] addressed by this Court." tions came to the Court before the Loving case The question before the Court was, he stated, did? How did the Court deal with such ques­ "whether a statutory scheme adopted by the tions? Before tagging along with the Lovings State ofVirginia to prevent marriages between to learn what we can from their nine-year odys­ persons solely on the basis of racial classifica­ sey through the state and federal courts, we tions violates the Equal Protection and Due will fust review a case from the 18805 and then, Process Clauses of the Fourteenth Amend­ more briefly, three cases from the mid-1950s and ment."l early 1960s. Though the Court dealt with four From time to time in the past, despite op­ related earlier cases, the Chief Justice was right portunities, the Supreme Court had declined to that the Court had never in fact ruled on the fac.e the question on which it now ruled. Never question of interracial marriage. It waited until before had it been prepared to render the deci­ 1967 to rule on that question. sion it now did. The story of the Lovings­ How and why did the Supreme Court avoid their travails at the hands of Virginia justice, the earlier opportunities? How and why did it their persistence through nine years of uncer­ rule in favor of the Lovings? tain marriage, and, finally, their fortunate timing 66 JOURNAL 1998, VOL. 2

Race, Sex, Marriage, and the afterwards, the Democratic Party retrieved Penitentiary power in Alabama, a different set of judges took the bench, and the counterrevolution pro­ The first case on race and marriage to duced new results in civil rights cases. This reach the Supreme Court came from Alabama context frames the postwar history of litiga­ only a few years after the Civil War and Re­ tion regarding the constitutionality of Alabama construction periods. The reasoning laws that threatened to make felons of both in the Supreme Court's decision in 1883 had partners in interracial relationships. its origins in a series of Alabama decisions Most of the postwar political events had dating from as early as 1868. not yet occurred when Thornton Ellis and Su­ In the late 1860s and the 1870s, the Ala­ san Bishop, a black man and a white woman, bama Supreme Court issued a wide range of went to trial in Lee County for violating rulings regarding laws that governed sexual Alabama's laws governing sexual relations. and marital relations between interracial part­ Unable to marry, they had managed to share ners. For people in Alabama at the time, that their lives the best they could under Alabama range of rulings could mean a deal of law. Yet, under Section 3598 of the Alabama uncertainty as to whether a wedding ceremony Code of 1867, people-if of the same race and might lead to marital bliss or to hard time in convicted of living "together in adultery, or for­ the state penitentiary. Looking back more than nication"-were to be fined at least $100, and a century later, it suggests the possibil ity, they could also be sentenced to as much as six though a slim one, that a different conclusion months in the county jailor at hard labor. A might have been reached to the debate at that second conviction "with the same person" sub­ time. It raises the question: Might the Supreme jected the offender to a minimum fine of$300 Court have overturned laws against interracial and a maximum imprisonment of twelve months, marriage long before the time of the Lovings? while an additional conviction, again "with the Alabama '8 first postwar constitutional same person," carried a mandatory sentence of convention directed that the legislature enact a two years, either in the penitentiary or at hard ban against interracial and the legis­ labor for the county. While Section 3598 cov­ lature did so as part of the state '8 Black Code. ered same-race couples who lived together out­ Countering such Black Codes across the South, side of marriage, Section 3602 covered interra­ Congress passed the Civil Rights Act of 1866, cial couples who lived together, of the substance of which it subsequently guar­ whether they were married. It mandated anteed in the Fourteenth Amendment, ratified onment, for a term of two to seven years each, in 1868. The Fourteenth Amendment offered of a white person and a "descendant of any protection against denials by state govern­ negro, to the third generation," if they "inter­ ments of "equal protection of the laws," "due marry or live in adultery or fornication with each process," and citizens' "privileges or immuni­ other."2 ties." In The Slaughterhouse Cases in 1873, A jury found Bishop and Ellis guilty of the Supreme Court construed very narrowly the violating Section 3602-and imposed a $100 "privileges or immunities" of citizens of the fine on each of them, as though they had been United States under that amendment. In the convicted under Section 3598. 3 No matter their meantime, Congress passed the Reconstruc­ race, they had received the lightest possible tion Acts in 1867 and gave black men in the penalty for the crime they stood convicted of. reconstructed states the right to vote; a bira­ They appealed their convictions. The Ala­ cial coalition of Republicans came to power in bama Supreme Court upheld the convictions Alabama; and the new electorate placed new but reversed the penalty. The court suggested judges on the state supreme court. Not long that the trial judge had believed Section 3602 to RACE AND MARRIAGE 67 violate the Civil Rights Act of 1866, and it re­ The Republican judge relied on the U.S. jected that premise. The federal law, Chief Jus­ Supreme Court's 1857 Dred Scott decision to tice A. 1. Walker wrote, "does not prohibit the bolster his interpretation of the law of free­ making of race and color a constituent of an dom as it contrasted with the law of slavery. offense, provided it does not lead to a discrimi­ Chief Justice Roger B. Taney, he noted, had nation in punishment." As for Section 3602, it stressed state laws banning marriage between "creates an offense, of which participation by blacks and whites to support the conclusion persons of different race is an element. To con­ that blacks were not citizens. As the Alabama stitute the offense, there must be not only crimi­ judge stated, "an inhabitant of a country, pro­ nal intercourse, but it must be by persons of scribed by its laws, approaches equality with different race." The Alabama statute, which the more favored population in proportion as outlawed interracial liaisons for both the white the proscription is removed." He applied that partner and the black one and then imposed notion to the statute at hand: "Dred Scott was identical sentences for infractions, met the stan­ not allowed to sue a citizen because he was dard required under the 1866 Civil Rights Act, not himself a citizen. One of the rights con­ according to the Alabama Supreme Court. ferred by citizenship, therefore, is that of su­ Thus the state supreme court upheld the ing any other citizen. The civil rights bill," Alabama law and sustained the convictions, declared Saffold, "now confers this right upon but it reversed the sentences and remanded the negro in express terms, as also the right to the case. What Thornton Ellis and Susan make and enforce contracts, amongst which Bishop each gained for their appeal was at least is that of marriage with any citizen capable of two years in prison rather than a $100 fine. They entering into that relation." Whatever the au­ would have fared better if they had not appealed thority of Congress to pass the Civil Rights their convictions--or iftheif case had come to Act in 1866, the Fourteenth Amendment en­ the Alabama Supreme Court on appeal just one shrined "its cardinal principle" in the federal term later than it did. The June term in 1868 was constitution. The second section of Article the last one before a new court was elected. One of Alabama's constitution of 1868, Jus­ The new Republican court began its work in tice Saffold continued, had "the same effect," 1869, By that time, too, the Fourteenth Amend­ for all citizens, it said, possessed "equal civil ment had been ratified. and political rights and public privileges,"6 Mr. The next miscegenation case to reach the Bums was ordered freed. Alabama Supreme Court developed in 1872 af­ Between 1868 and 1872, the Alabama Su­ ter a justice of the peace named Bums was in­ preme Court reversed direction on the state's dicted for presiding in Mobile over a wedding miscegenation laws; it did so again in the years of an interracial couple. When Burns appealed that followed. By 1875, the Republican inter­ his conviction, Justice Benjamin F. Saffold lude of Reconstruction had ended in Alabama, spoke for a court that viewed the miscegena­ and the state supreme court was again under tion laws in a very different light than the court the control of Democrats. In a series of cases, had four years earlier. The court now found between 1875 and 1877, the court overturned that Section 3602 violated both the state and Burns and perfected a new interpretation of the federal constitutions. "Marriage is a civil con­ law of freedom. The new interpretation endured tract," Justice Saffold wrote. "The same right for nearly a century. to make a contract as is enjoyed by white citi­ In the Barbour Circuit Court, a white man zens, means the right to make any contract named Ford and a black woman were tried, un­ which a white citizen may make. The law in­ der Section 3602, on the felony charge of"Jiv­ tended to destroy the distinctions of race and ing together in adultery or fornication" in an color in respect to the rights secured by it. "5 interracial relationship. They challenged the 68 JOURNAL 1998, VOL. 2

constitutionality of that statute, and they declared that it "should be overruled."7 pleaded not guilty. Yet they were convicted and The attorney general won a partial victory. sent to the penitentiary. They appealed to the The court stated that, "On the question in­ Alabama Supreme Court, where their lawyer, volved in this case, we can add nothing to the relying on the decision in Burns, argued: "The thorough discussion it received" in the Ellis legislature had no power to make an act[,] which decision. Yet the court professed to see no when committed by persons ofthe same race is "confl ict" between Ellis and Burns. "The latter only a misdemeanor, a felony when committed case involved only the validity of the statute by persons of different races." John W. A. prohibiting marriage between whites and blacks. Sanford, the Alabama attorney general in The validity of the statute prohibiting such per­ I 87S-as he had been in 1868 and 1872, when sons from living in adultery was not involved. he argued the state's side in the Ellis and Burns Marriage may be a natural and civil right, per­ cases-harked back to Ellis v. State. He insisted taining to all persons. Living in adultery is of­ that Section 3602 contravened neither the state fensive to alJ laws human and divine, and hu­ nor the federal constitutions. Relying on the man laws must impose punishments adequate U.S. Supreme Court's decision in The Slaugh­ to the enormity of the offence and its insult to terhouse Cases, he argued: "Every State has public decency."8 the right to regulate its domestic affairs, and to The court spoke in its decision in Ford v. adopt a domestic policy most conducive to the State as ifthe only question were whether "adul­ interest and welfare of its people." As far as the tery or fornication" should be a criminal of­ decision in Burns v. State was concerned, he fense. It chose to ignore the racial component.

As part of Alabama's Black Code in the nineteenth century, the state enacted laws banning interra­ cial marriages-making them a misdemeanor beginning in 1852 and a felony following emancipa­ tion. This early engraving of the city of Montgomery shows African-American slaves toiling in the fields prior to the Civil War. RACE AND MARRIAGE 69

It displayed no effort directly to address the for the offense prohibited, in precisely the difference between a misdemeanor offense, same manner and to the same extent. There is with a $100 fine, and a felony conviction that no discrimination made in favor of the white carried at least two years' imprisonment. By person, either in the capacity to enter into such implication, the court ruled that "the enormity a relation, or in the penalty."11 of the offence" was greater if the adulterous Later that term, in another case, the court partners were of different races than if they also applied the new law offreedom to interra­ were of the same race. cial sex and marriage. Robert Hoover, a black In two cases in the December 1877 term, man, had married Betsey Litsey, a white woman, the court completed the counterrevolution that on March 6, 1875, in Talladega County, and the it had begun two years before. Like Ellis, but next year the grand jury indicted them for living unlike Ford, each involved the marriage of a together in "adultery or fornication." At the black man and a white woman. Having chosen conclusion of their trial, the judge instructed to distinguish between a statutory ban on in­ the jury "that the marriage shown in this case terracial marriage (which had been struck down was forbidden by law, is a nullity, and is no in Burns) and a similar ban on interracial adul­ protection to the who are guilty as tery or fornication (which it had upheld in Ford), charged in the indictment, if the evidence the court now threw out the distinction and shows, beyond a reasonable doubt, that Hoover upheld the statutes. is a negro man and Litsey a white woman, and Aaron Green married Julia Atkinson in that they have been cohabiting as husband and Butler County on July 13, 1876. They were wife." The jury saw no reasonable doubt. The soon indicted for violating Section 4189 of case was appealed to the Alabama Supreme the revised Alabama Code of 1876, which, Court, which upheld the trial court. The like its predecessor Section 3602, banned in­ Hoovers' "marriage being absolutely void, the terracial marriages and established greater offending parties must be treated as unmarried penalties for fornication and adultery in cases persons, and their sexual cohabitation as forni­ of interracial couples than when both partners cation within the statute."12 were of the same race. Julia Green's case would In Alabama, by 1878, nobody identified 9 reach the Alabama Supreme Court. as white could legally marry anyone identified Green pleaded not guilty to the charge, but as black. If such a marriage took place, the she did not dispute the facts. Judge John K. couple could be tried on the charge of living Henry instructed the jury that, "if they believed together without being married. If a couple liv­ the evidence, they must find the defendant ing together outside of marriage was interra­ guilty." The jury convicted her, and Judge cial, the charge was a felony. Both parties, if Henry sentenced her to two years in the peni­ convicted, would be sentenced to at least two tentiary. Citing the Burns decision, she ap­ years in the penitentiary. Between 1868 and pealed. Attorney General Sanford, as he had 1878, the state had developed a line of argu­ two years earlier in Ford, urged that Burns be ment defending such a legal environment overturned. 10 against attacks based on the Civil Rights Act Justice Amos R. Manning spoke for the of 1866 or the Fourteenth Amendment. court in a thoroughgoing rejection of the de­ Would the Supreme Court of the United cision made by "our immediate predecessors" States rule differently? in Burns. Returning to the court's line of ar­ gument in Ellis, he insisted that the Alabama Tony Pace and Mary Cox law "no more tolerates" interracial marriage on the partofa "white person" than ofa "negro Tony Pace and Mary Cox spent time to­ or mulatto." Each, he insisted, "is punishable gether near their homes in Clarke County, 70 JOURNAL 1998, VOl. 2 north of Mobile. They were not married, nor ute violated the privileges and immunities or could they marry each other under Alabama equal protection clauses of the Fourteenth law. Maybe they wished to marry each other Amendment. In the case of sexual relations, but knew that, under the law at that time and penalties for same-race infractions did not have place, they never could. Maybe they con­ to be the same as for interracial crimes, for the sciously attempted to avoid falling into a trap crime was not the same. The nature of the crime under the law so they chose not to share a was "determined by the opposite color of the home but, rather, visited from time to time and cohabiting parties. The punishment of each place to place. The law found them nonethe­ offending party, white and black, is precisely less. the same." Interracial cohabitationjeopardized In November 1881 the grand jury indicted "the highest interests of government and soci­ them under two provisions of the Alabama ety," for it could result in "the amalgamation of Code, one that prohibited a man and a woman the two races, producing a mongrel population from living together outside marriage, and one and a degraded civilization."15 that imposed a greater penalty if an interracial The court produced a series of precedents couple did so. When their case came to trial in supporting its approach to the case at hand. April 1882, Mary Jane Cox asked that her in­ Among them were recent decisions in Virginia, dictment be quashed on the basis that it named North Carolina, Texas, and Indiana, as welJ as Mary AIUl Cox. The court refused to let her off, the Alabama court's rulings in Ellis, Ford, so she, the white woman, like her black partner, Green, and Hoova Conspicuously missing was had to face the charges. They pled not guilty. mention of the Burns decision. Burns had van­ The court did not bother with the lesser charge ished without a trace, in the eyes of the couple's but went after them as an interracial couple. 13 lawyer as well as the state supreme court. Burns, After the evidence had been presented, the great aberration, never happened. It had no the defendants hoped to sway the outcome relevance, as became clear when the couple took with an instruction they urged the trial judge to their appeal to the Supreme Court of the United give the jury. Jurors should consider "where States. the parties each li ved, and with whom, and The couple's attorney, John R. Tompkins, where the adulterous acts took place, if they had no quarrel with Green, "on the intermar­ did in fact take place," and they should con­ riage of the races," which he declared to be sider, too, whether those acts "took place in a "good law" in his brief for the Supreme Court. house control led or occupied by either party or But he did object to Ellis and Ford as "bad law," were mere occasional acts of illic it intercourse for they entailed "unequal punishments mea­ in out of the way places."14 In short, the couple sured against different races according to denied that they lived together, and thus they color." He continued: "Marriage is a social could hardly have been living together "in adul­ blessing; adultery and fornication are social tery or fornication with each other," even if they evils." He conceded, however, that "marriage had a sexual relationship. is a social institution subject to the regulation The judge refused the instruction. The jury of the sovereign power of the State without convicted, and each defendant was sentenced violation of any provision of the Constitution." to a term of two years in the state penitentiary. Yet he objected that, according to the law un­ Pace and Cox discovered a virulent fonn of der which his clients had been convicted, "an "separate" as it related to "equal"-an equal ordinary misdemeanor is made a felony be­ punishment for failure to keep separate. cause one of the offending parties happened The couple appealed to the Alabama Su­ to be a negro." The Alabama law on interracial preme Court. Speaking for that court, Justice cohabitation had to fall, John R. Tompkins in­ Henderson M. Somerville denied that the stat- sisted, because, under the Fourteenth Amend- RACE AND MARRIAGE 71

WHAT MISCEGENATION IS!

WHAT W.B; AIU~ TO EXPEOT

Now that Mr. Lincoln is Re-elected.

,~v~'i OF CONGHt$'~~ This anti-Lincoln pamphlet at­ " tacking the President's views on ending slavery also shows how repugnant many white Americans considered miscegenation. The first case on race and marriage reached the Supreme Court in the 1880s; the Court upheld an anti­

IV :\I.LER '" II'ILLETI'f'. PC nT.l dHtR', miscegenation statute then and did not reverse itself until the 19605.

ment, it mandated "an illegal discrimination different races."17 between the offending party and others of his Noting that the couple's attorney had con­ own race who might commit a like offense ceded the ban on interracial marriage to be both with an Indian, a Chinese, a Corean or one of constitutional and wise, the attorney for the his own people."16 state, Henry Clay Tompkins, insisted that he The state would have none of the distinc­ indulged in two fallacies in his approach to the tion Tompkins insisted upon. Repeating the lan­ cohabitation law. First, there was "no discrimi­ guage of the act at issue, which equally nation against any race" and "no denial of any criminalized actions when an interracial privilege belonging to any citizen." No such couple "intermarry or live in adultery or for­ "privilege" as living in adultery or fornication nication with each other," the state's attorney "ever did or ever will exist," and the law im­ declared the purpose to be twofold: "First to posed equal punishments on both parties in an prevent the intermarriage'ofpersonsofthe two interracial couple. Second, the general law of races; and second, to prevent illicit inter­ sexual relations, the one related to same-race course between them, the end to be accom­ infractions, "refers and relates only to the plished by each prohibition being the same­ crime of adultery when committed by parties the prevention of the amalgamation of the two between whom marriage is not forbidden." 72 JOURNAL 1998, VOL. 2

Where marriage was forbidden, whether in fact, that "the right of the State" to outlaw mar­ terms of race or incest, the state imposed riages "between persons of different races, or greater penalties for "living together in adul­ even different religions, has been exercised and tery or fornication." '8 sustained." The state went farther, farther than The two sides argued over the application the truth could take it. "This question has never of The Slaughterhouse Cases. The couple's been before this court, but has been before sev­ lawyer claimed that, according to The Slaugh­ eral of the State courts and also several of the tel'house Cases, the Fourteenth Amendment lower courts of the United States, and in ev­ was designed to " reach precisely such cases ery instance the validity of such laws has been as the one at bar," where racial distinctions re­ upheld."21 But neither side was mentioning sulted in discrimination in the law. The state, Burns, and neither side was contesting the au­ for its part, appreciated the Slaughterhouse dis­ thority of the state to criminalize interracial mar­ tinction between state and federal citizenship, riage. The only question seemed to be whether insisted that many "privileges" remained the the Fourteenth Amendment permitted the state province of the state governments, and con­ to distinguish "criminal intimacy" between races cluded that "the regulation of marriage is purely from that by members of the same race. a power relating to internal police." Thus the Writing for a unanimous court, Justice state could argue that "the power to say who Stephen 1. Field rejected the argument that the may and who may not marry is one of the ordi­ Fourteenth Amendment's Equal Protection nary police powers of every government, re­ Clause offered a shield. Rather, he adopted the strained only by legislative discretion," and Alabama court's line of reasoning. Viewing the "the policy of the law has always been to pun­ two sections of the Alabama law, Justice Field ish acts of criminal intimacy between those who found them "entirely consistent" and in no way are forbidden to marry with greater severity than racially discriminatory. Each, he insisted in all where no such prohibition exists."'9 earnestness, dealt with a different offense. Sec­ The state laid out its arguments. First, each tion 4184 treated the races in an identical man­ state had the power, "unlimited except by legis­ ner, in that it "equally includes the offense when lative discretion," to declare "who of its citi­ the persons of the two sexes are both white zens may marry, when they may marry, and how and when they are both black." Section 4189 they may marry." Second, "the state's power to also treated the races in an identical manner, in forbid marriages between persons of different that it "applies the same punishment to both races carries with it the power to impose a offenders, the white and the black," in an inter­ greater punishment for acts of criminal intimacy racial relationship.22 between such persons than . . . for the same Section 4189, unlike 4184, the Court ruled, acts committed by persons between whom mar­ "prescribes a punishment for an offense which riage is not forbidden." Third, since the power can only be committed where the two sexes are to regulate marriages resides in the states, "for of different races. There is in neither section the protection of his rights in connection there­ any discrimination against either race." "In­ with, if there are any such, the citizen must look deed," wrote Justice Field, the offense against to the States." And fourth, "a law which pun­ which Section 4189 "is aimed cannot be com­ ishes persons of each race in the same manner mitted without involving persons of both races and to the same extent for its violation is not a in the same punishment. Whatever discrimina­ discrimination against either race, nor does it tion is made in the punishment prescribed in deny to any person the equal protection of the the two sections is directed against the offense laws."2o designated and not against the person of any The state claimed, as a matter of historical particular color or race." RACE AND MARRIAGE 73

The Supreme Court and Interracial Fourteenth Amendment by enacting laws re­ Marriage, 1880s-1910s quiring railroad facilities that were "equal, but separate," for the two races-wrote: "Laws for­ The nation's Court accepted the main bidding the intermarriage of the two races may lines of argument that supporters of the Ala­ be said in a technical sense to interfere with bama miscegenation laws had developed from the freedom of contract, and yet have been uni­ Ellis in 1868 to Hoover in 1877. By 1883, versally recognized as within the police power the aberration of Burns was already invisible of the State."24 to attorneys and judges, but it serves as a re­ Indicating no awareness of any exceptions minder to us, more than a century later, that to his generalization of universality, Justice the course of judicial history regarding laws Brown relied for his example of such deci­ against interracial marriage was not perhaps sions not on the Supreme Court's opinion in entirely inevitable-that the Lovings might Pace v. Alabama but, rather, on one ofthe lead­ have had an uneventful marriage, one into ing state court decisions on the subject, one which the law never intruded. Yet it is hard to from a northern state, Indiana. As Chief Jus­ see much likelihood that the Supreme Court tice Warren would suggest many years later, of the United States might have ruled differ­ Pace had not ruled directly on the constitu­ ently than it did in Pace. Justice John Marshall tionality of laws banning interracial marriage. Harlan did not dissent from the ruling in Pace, Yet in neither Pace nor Pfessy had the Court though he was the sole dissenter from the noted any difficulties with such laws. Court's narrow construction of the Fourteenth The matter of the constitutionality of mis­ Amendment in the Civil Rights Cases-de­ cegenation legislation came up again in cided in October 1883, just nine months after Buchanan v. Warley, a 1917 case in which the the Pace decision-and again in 1896 in Supreme Court deternlined that municipal zon­ Plessy v. FergusonY ing ordinances residential hous­ The Pace decision was understood, from ing patterns by race violated the Fourteenth the 1880s to the 1960s, as reflecting a valida­ Amendment. Proponents of the ordinances ar­ tion of state miscegenation laws. Yet only by gued that such regulations were just another implication had the ban against inten'acial mar- expression ofa state's police power, like other been addressed, as the state had argued segregation laws, and such "laws have existed for stiffer penalties for cohabitation if a couple for many years separating black from white in was prevented by state law from marrying. Re­ schools, in railroad cars[,] and in the matter of the Court had upheld the Alabama marrying." Opponents conceded that the issue and no southern state, for the next eight was closed in education, transportation, and decades, displayed any inclination to repeal marriage, but sought to distinguish hous­ such laws. The Supreme Court's 1883 deci­ ing as a separate issue, one that hinged on prop­ sion in Pace v. Alabama would have an even erty rights.25 more durable career in the American law of The Supreme Court adopted the oppo­ interracial sex and, by extension, marriage than nents' position, reasoning, and language and the 1896 decision in Plessy v. Ferguson would based its decision on "fundamental rights in have on segregated transportation and, by ex­ property." The Court observed that residential tension, education. separation "is said to be essential to the main­ In the Plessy case, the Court itself took tenance of the of the races," but it in­ occasion to comment on the constitutionality sisted: "The case presented here does not deal of miscegenation laws. Justice Henry Billings with an attempt to prohibit the amalgamation of Brown-making his way to a conclusion that the races."26 In Buchanan v. Warley, as in Pace, state legislatures did not necessarily violate the all sides operated from the premise that the 74 JOURNAL 1998, VOL. 2

laws against interracial marriage were safe ITom the Fourteenth Amendment. They differed on other matters before the Court. Laws again st interracial marriage vanished from the statute books in various states in the years to come, from Maryland and Indiana in the East to Utah and Oregon in the West. But­ until the Lovillg decision-they almost always did so as a result of action in the legislatures, not in the courts, and certainly not in the fed­ eral courts.

The Case of Linnie Jackson Some seventy years after Tony Pace went to tri al, a bl ack woman named Linnie Jackson was convicted for her miscegenous relation­ ship with a whi te man named A. C. Burcham. E. B. Haltom, Jr. , her lawyer, re lying on a long train of twentieth-century civil rights decisions from the Supreme Court of the United States,

Between 1868 and 1872, during the Reconstruction era, the Alabama Supreme Court under the leadership of Chief Justice Benjamin F. Saffold (top) reversed direction on the state's misce­ genation laws and held that blacks had the right to make and enforce contracts, including marriage contracts "with any citizen capable of entering into that relation." The drawing above shows Alabama's state capitol, which housed the Alabama Supreme Court until 1870. RACE AND MARRIAGE 75 challenged the proceeding on Fifth and Four­ son case. "It seems clear that the statute in­ teenth Amendment grounds. Nonetheless, the volved is unconstitutional," he wrote on No­ Alabama Court of Appeals (a twentieth-cen­ vember 3, 1954. And yet, he continued, "re­ tury appellate court below the Alabama Su­ view at the present time would probably in­ preme Court) surveyed the history of deci­ crease the tensions growing out of the school sions in miscegenation cases in the Alabama segregation cases and perhaps impede solu­ courts, declared that, after all, the nation's high tion to that problem, and therefore the COUlt court had affirmed the Pace decision, and may wish to defer action until a future time. noted that "the decisions ofthe [Alabama] Su­ Nevertheless, I believe that[,] since the depri­ preme Court shall govern the holdings and de­ vation of rights involved here has such seri­ cisions of this court." It upheld her convic­ ous consequences to the petitioner and others tion. similarly situated[,] review is probably war­ Jackson did not give up. She took her case ranted even though action might be postponed to the Alabama Supreme Court, which rebuffed until the school segregation problem is her as well, and then to the Supreme Court of solved."30 the United States. There she found that the Later that month, the Supreme Court Justices were by no means eager to push an dodged the bullet. It denied celtiorari. Three equal-rights agenda on the matter of miscege­ Justices had voted to hear the case: Hugo L. nation. Focused as they were on the school Black, William O. Douglas, and Earl Warren. But segregation cases that had been decided in five others voted not to: Harold H. Burton, Tom 1954, they recognized that, were they to take Clark, Felix Frankfurter, Sherman Minton, and on miscegenation, they might only in their Stanley F. Reed.J1 own way. Any decision that the Court might Seven decades had elapsed between Pace make on miscegenation could undermine their and Jackson, and nothing, it seemed, had stance in the school desegregation cases. The changed. The precedent of Pace, such as it was, first decision announced in Brown v. Board of remained intact. Linnie Jackson went to the Education came in May 1 the second, penitentiary. And the next year, while she was implementing decision came in May 1955. in prison, the court dodged another such case, Linnie Jackson's case came to the Court be­ one that came from Virginia. tween those two dates. 28 The Brown decision eventually led to a Ham Say Nairn decision overturning the laws against interra­ cial marriage, but in the short run it caused too On June 26, Ham Say Nairn, a Chi- much turmoil to have any such effect. Early nese sailor, married a white woman from Vir­ writers surmised that "these statutes are un­ ginia in Elizabeth City, North Carolina. That state, constitutional," yet "the Court, or at least some like Virginia, banned marriages between whites of its Justices, did not believe that airing this and blacks, but, unlike Virginia, it permitted inflammatory subject, oflittle practical signifi­ marriages between Caucasians and Asians. For cance, would be in the public interest while stri­ some months, the Naims made their home in dent opposition is being voiced to less contro­ Norfolk, Virginia. Then they separated. On Sep­ versial desegregation because it allegedly leads tember 30, 1953, Ruby Elaine Naim filed a peti­ to intermarriage."29 The papers of various Su­ tion seeking annulment on grounds of adul­ preme Court Justices make it clear that such tery, and if that effort failed, she asked that an speculations were exactly right. annulment be granted on the basis of Virginia's Harvey M. Grossman, law clerk to Justice ban on interracial marriages.32 William O. expressed his conflicted Floyd E. Kellam of the Portsmouth his boss on the Jack- Circuit Court knew an easy case when he saw 76 JOURNAL 1998, Val. 2

anteed to the States and safeguarded by that bastion of States' rights, somewhat battered perhaps but still a sturdy fortress in our fun­ damental law, the tenth section of the Bill of Ri gh ts ."3 5 What about Brown v. Board of Education and its incantation of the Equal Protection Clause? No problem, Justice Buchanan assured Virginia authorities. "No such claim for the in­ termarriage of the races could be supported; by no sort of valid reasoning could it be found to be a foundation of good citizenship or a right which must be made available to all on equal terms." He could find nothing in the U.S. Con­ stitution, he wrote, that would "prohibit the State from enacting legislation to preserve the racial integrity of its citizens, or which denies the power of the State to regulate the marriage relation so that it shall not have a mongrel breed When the case of Mary Jane Cox and Tony Pace, an interracial couple accused of liv­ of citizens." Rather than promote good citizen­ ing together, was decided by the Alabama ship, he suggested, "the obliteration of racial Supreme Court in 1882, Associate Justice plide" and "the corruption of blood" would Henderson M. Somerville labove) wrote that interracial cohabitation jeopardized "the "weaken or destroy the quality of its citizen­ highest interests of government and soci­ ship. " 36 ety," for it could result in "the amalgam­ Refusing to give up, Naim appealed to the ation of the two races, producing a mon­ grel population and a degraded civilization." Supreme Court ofthe United States. Unhappily for Naim, his case came to the Supreme Court only one year after Jackson, and the Court was one. Here was a marriage between a white per­ no more eager to confront the issue then than son and a nonwhite. The couple had gone to it had been the year before.37 North Carolina in order to evade the Virginia The Supreme Court neither accepted nor law, as much a crime as having had the cer­ refused the case. Rather, it sent the case back emony in Virginia. Of course the marriage was to Virginia. Claiming to have determined the void, and he granted the annulment Mrs. Naim record insufficiently clear or complete to ad­ sought. 33 dress the question Naim raised, it directed the It was Mr. Naim's tum to go to court. On Virginia Supreme Court of Appeals to remand the basis of his marriage to an American citi­ the case to Portsmouth for further proceed­ zen, he had applied for an immigrant visa, and ings. But Virginia's highest court refused to unless he remained married he could not hope cooperate with the federal court's request­ to be successful. His immigration attorney, or, rather, it acted to help the Court out of its David Carliner, mounted a test case in the Vir­ dilemma. It remonstrated that "the record be­ ginia Supreme Court. 34 fore the Circuit Court of the City of Ports­ Speaking for a unanimous court, Justice mouth was adequate for a decision of the is­ Archibald Chapman Buchanan relied on the sues presented to it. The record before this Tenth Amendment to fend off the Fourteenth. court was adequate for deciding the issues on "Regulation of the marriage relation," he in­ review.... The decree of the trial court and sisted, is "distinctly one of the rights guar- the decree of this court affirming it have be- RACE AND MARRIAGE 77 come final so far as these courts are con­ pleted the task in 1967. cerned." The Virginia statutes were sound. the The first of the 1960s cases was Naims' marriage was void. and the Virginia McLaughlin v. Florida. Dewey McLaughlin courts' decisions were final, said the court.38 and Connie Hoffman, after living for a few The Richmond Times-Dispatch published weeks in an efficiency apartment in Miami, an editorial about the standoff. While ac­ had been indicted under a Florida statute, Sec­ knowledging that the Virginia court had "used tion 798.05, that said: "Any negro man and some rather tart language in refusing to com­ white woman, or any white man and negro ply," it insisted nonetheless that "the Virginia woman, who are not married to each other, who court has not defied the nation's highest tribu­ shan habitually Jive in and occupy in the night­ nal." Rather, the paper noted. the state court time the same room shall each be punished by had simply declared that "it had no legal means imprisonment not exceeding twelve months, of conniving with the Federal court's order." or by fine not exceeding five hundred dollars." Noting "many" Virginians' "displeasure" with Convicted, they were each sentenced to thirty the Supreme Court's recent rulings on segre­ days and a $150 fine. When they appealed their gation, the editorial observed that those "many convictions, the Florida Supreme Court relied Virginians ... also applaud the Virginia court on the authority of Pace v. Alabama and up­ in rebuffing the Federal court's attempt to op­ held the trial court.4! erate in an area of State affairs over which it McLaughlin and Hoffman took their case has no jurisdiction."39 to the Supreme Court of the United States. Nairn took his case back to the Supreme There they objected, first, that they had been Court, but there it died. The nation's high court prevented from a defense that they had a com­ simply noted that the response of the Virginia mon-law marriage, for the trial judge had in­ Supreme Court "leaves the case devoid of a sisted that, as an interracial. couple, they had properly presented Federal question." The Vir­ no freedom to marry under Florida law. Second. ginia court had helped take the Supreme Court they argued that they were denied equal pro­ of the United States off the hook.40 Thus no tection of the laws, as they had been convicted judicial reconsideration took place by the Su­ under a statute that applied only to interracial preme Court in the 1950s regarding miscege­ couples. Finally, they contended that no con­ nation laws inAlabama, Virginia, or anywhere clusive evidence had been introduced to iden­ else. tify McLaughlin as being at least one-eighth of African ancestry, as would be necessary under FJorida law for the two convicts to be an inter­ Dewey McLaughlin and racial couple. Connie Hoffman A unanimous Court struck down their con­ In the 1960s, the Supreme Court of the victions, but it dealt only with one of the three United States displayed a new willingness to points, the issue of equal protection. The Court take on the issue of miscegenation. Recover­ objected that the conduct criminalized under ing from the paralysis it had suffered in the Section 798.05 related only to interracial mid-1950s, the Court now drove toward total couples. Writing for the Court, Justice Byron demolition of the structure of Jim Crow in R. White noted three elements of the couple's American public life-and thus in private life offense, "the (I) habitual occupation of a room as well. In the Pace decision eighty years at night, (2) by a Negro and a white person (3) before, the Court had unblinkingly upheld who are not married." The provision under Alabama's miscegenation law. In the 1950s, which they had been indicted and convicted, it had refused to deal with the question. The he observed, fell among several other sections Court began to confront it in 1964 and com- designed to "deal with adultery, lewd cohabi- 78 JOURNAL 1998, VOL. 2 tation and fornication," most of them "of gen­ Would the Court overturn the convictions eral application." But this particular provision on narrow grounds related solely to the law specified an interracial couple and, unlike any against interracial cohabitation, or would it of the others, "does not require proof of in­ rule more broadly to throw out all miscegena­ tercourse along with the other elements of the tion laws? Plaintiffs and the state alike had at­ crime. "43 tempted to tie together Florida's laws against The Court had to deal with the ancient interracial nonmarital cohabitation and inter­ legacy of Pace. As the Court now saw things, racial marriage, the plaintiffs on the basis that though, "Pace represents a limited view of the marriage was not an option available to them, Equal Protection Clause which has not with­ the state on the grounds that the "interracial stood analysis." The Court in 1883 had appar­ cohabitation law .. . is ancillary to and serves ently been untroubled that an Alabama law "did the same purpose as the miscegenation law it­ not reach other types of couples perfonning self." The Court insisted on untying the two the identical conduct" or by "the difference in bans: "We reject this [Florida's] argument, penalty established for the two offenses," one without reaching the question of the validity committed by a single-race couple and the other of the State's prohibition against interracial by a black-white couple.44 marriage or the soundness of the arguments Whatever may have been the situation in rooted in the history of the [Fourteenth] 1883, the Court in 1964 was deeply troubled by Amendment." Thus the Justices invalidated the such questions. White wrote: "The courts must statute under which the pair had been con­ reach and detennine the question whether the victed, but they did so, they took pains to make classifications drawn in a statute are reason­ explicit, "without expressing any views about able in light of its purpose-in this case, the state's prohibition of interracial marriage." whether there is an arbitrary or invidious dis­ In the case at hand, "the state police power . .. crimination between those classes covered by trenches upon the constitutionally protected Florida's cohabitation law and those excluded. freedom from invidious official discrimina­ That question is what Pace ignored and what tion based on race."47 must be faced here." As he explained, relying A unanimous Supreme Court ruled that a on such recent cases as Brown v. Board ofEdu­ state could not use a miscegenation statute to cation, "the central purpose of the Fourteenth prosecute an interracial pair for "habitually Amendment was to eliminate racial discrimina­ liv[ing] in and occupy[ing] in the nighttime the tion emanating from official sources in the same room." The Court rejected the use ofra­ States." Yet, "We deal here with a racial classi­ cial classification in this manner. Justice Potter fication embodied in a criminal statute."45 Stewart appeared to go farther- he seemed Other provisions of Chapter 798, Justice ready to overturn all miscegenation laws-in a White wrote, "neutral as to race," adequately concurring opinion in which Justice William O. expressed Florida's "general and strong state Douglas joined: "I cannot conceive of a valid policy against promiscuous conduct, whether legislative purpose ... which makes the color engaged in by those who are married, those of a person's skin the test of whether his con­ who may marry[,] or those who may not. These duct is a criminal offense." Perhaps that was provisions, if enforced, would reach illicit rela­ insufficiently clear? He restated his objection, tions of any kind and in this way protect the based on the Equal Protection Clause: "I think integrity of the marriage laws of the State, in­ it is simply not possible for a state law to be cluding what is claimed to be a valid ban on valid under our Constitution which makes the interracial marriage." No compelling state pur­ criminality of an act depend upon the race of pose, he wrote, could support the offending the actor. Discrimination of that kind is invidi­ law. 46 ous per se."48 RACE AND MARRIAGE 79

Mr. and Mrs. Richard Perry Loving were photographed in June 1967 after they leamed of their court victory against a Virginia law that had denied that they could marry. They had been awak­ ened in the middle of the night by policemen who arrested them for living as husband and wife in the state of Vir­ ginia.

Justice Harlan also found the interracial as "any negro man and white woman." cohabitation measure unconstitutional, but he Meantime, another miscegenation case thought McLaughlin "a very bad case" for was in the courts, in Virginia. This one involved overturning laws against interracial marriage.49 a "white man and negro woman," to use As late as 1964, it was not possible to obtain a Florida's language, two people who-like the decision-certainly not a unanimous deci­ Greens and the Hoovers in Alabama in the sion-in support of extending Brown that far. I 870s-had thought they had a marriage and Maybe the state's marriage law was per­ found they had a felony. missible under the Fourteenth Amendment, and maybe it was not. That question did not need The Supreme Court, Virginia, to be answered, the Court contended, to reach and the Lovings a conclusion in McLaughlin. Florida escaped a loss in its strategic gamble, and proponents of On July II, 1958, Caroline County change lost their opportunity to obtain a wider­ Commonwealth's Attorney Bernard Mahon ranging decision. The Court proved Jess timo­ obtained warrants for the arrest of Richard Lov­ rous than in the cases of Linnie Jackson and ing and "Mildred Jeter" each for a felony asso­ Ham Say Nairn, but it was clearly unprepared to ciated with their marriage on June 2 in Wash­ go all the way. ington, D.C. Three law officers took their flash­ McLaughlin was a crucial decision, in that lights into the Lovings' bedroom and awak­ the Supreme Court overturned the Pace prece­ ened them that July night. There they gathered dent on interracial cohabitation, and yet the up the couple, along with the incriminating evi­ Court sidestepped the central question. One dence that they were living together as hus­ might say that it had done little better in band and wife. 50 McLaughlin than it had in Pace. Dewey The Caroline County grand jury brought McLaughlin and Connie Hoffman still could indictments at its October tenn. At their trial on not marry under Florida law without subjecting January 6, J 959, the Lovings pled "not guilty" themselves to time in the penitentiary. If they at first and waived a jury triaL At the close of continued to live together in Florida as an un­ argument, they changed their pleas to "guilty," married couple, authorities could bring charges and Circuit Court Judge Leon M. Bazile sen­ against them for a sexual relationship outside tenced them to one year each in jail. But he marriage as "any man and woman" rather than suspended those sentences "for a period of 80 JOURNAL 1998, VOL. 2 twenty-five years"-all the way to the year eral government could not help the Lovings, 1984-provided that "both accused leave perhaps the American Civil Liberties Union Caroline County and the state of Virginia at could. The ACLU did. That organization had once and do not return together or at the same been pushing litigation since the late 1940s time to said county and state for a period of to rid the nation of miscegenation laws like twenty-five years."51 Virginia's.53 The offending parties could not live as And thus the case of the Lovings made its husband and wife in Virginia. The finite sus­ way back into the courts. While it did, the pension did not even mean that, after twenty­ Lovings returned home to the Caroline County five years, the Lovings could move back to Vir­ area, though they faced uncertainty there and ginia. One ofthem, it seemed, could live in Vir­ kept their Washington, D.C., sanctuary at the ginia with impunity. Or, after twenty-five years, ready. 54 both could live there separately. As matters ACLU member Bernard S. Cohen, a young stood in 1959, however, if they ever attempted lawyer practicing in Alexandria, Virginia, wel­ to live together in their native state, they faced comed an opportunity to take the case, and in trouble. If they were caught in Virginia at any­ November 1963 he returned to state court seek­ time during the next twenty-five years, they ing reconsideration of the convictions and sen­ would serve their suspended sentence. If they tences. He filed a motion in Caroline County lived together in Virginia after the twenty-five Circui t Court to set aside the original judgment. years had elapsed, they would face prosecu­ Cohen knew that he would have to be creative tion just as they had in 1958. to overturn a century's worth of adverse prece­ Richard Loving and Mildred Jeter, as the dents. Of course he would argue the Fourteenth court knew them in Virginia, moved to Wash­ Amendment's Equal Protection Clause to con­ ington, D.C., and resumed their identities as test the constitutionality of Virginia 's miscege­ Mr. and Mrs. Loving. There they lived at 1151 nation statutes. He argued, too, that the sus­ Neal Street Northeast with Mildred Loving's pended sentence "denies the right of marriage cousin, Alex Byrd, and his wife Laura. They which is a fundamental right of free men"; that had three children-Sidney, Donald, and the sentence constituted "cruel and unusual Peggy-though Mrs. Loving returned home to punishment" in violation of the Virginia Con­ Virginia for each birth.52 Either Mr. Loving or stitution; that it exceeded the "reasonable pe­ Mrs. Loving could visit Caroline County, but riod of suspension" permitted by Virginia law; they could not legally both do so at the same and that it constituted banishment and thus time. They had to make their home and find violated due process. 55 employment outside the state. This they con­ Judge Bazile was in no hurry to second­ tinued to do for more than four years. guess himself, so nothing happened. In mid- They began to contest their fate in 1963. 1964, another young attorney, Philip J. Mildred Loving wrote Robert F. Kennedy, At­ Hirschkop, joined Cohen in the case and, no torney General of the United States, for assis­ action having been taken on the petition in state tance. It was time, she felt, that her family move court, Cohen and Hirschkop began a class ac­ back home, and she had probably heard of a tion in October 1964 in U.S. District Court in the civil rights bill bobbing around in Congress, Eastern District of Virginia. 56 though the Civil Rights Act of 1964, when it Cohen and Hirschkop requested that a became law the next year, left marriage as the three-judge court convene to determine the con­ one remaining pillar of the structure of Jim Crow. stitutionality of Virginia's miscegenation stat­ The Justice Department redirected her let­ utes and to enjoin the enforcement of the ter to the National Capitol Area Civil Liberties Lovings' convictions under those laws. Pend­ Union with the suggestion that, though the fed- ing a decision by a three-judge panel, they re- RACE AND MARRIAGE 81 quested a temporary injunction against the en­ soon render a decision.60 forcement of those laws, which they said were The Lovings appealed Judge Bazile's de­ designed "solely for the purpose of keeping cision to Virginia's highest court. There, law­ the Negro people in the badges and bonds of yers for the state and the Lovings rehearsed slavery." Seeing no "irreparable hann" to the arguments that, both sides well knew, were Lovings in the meantime, District Judge John likely to be heard again at the Supreme Court D. Butzner, Jr. , rejected the motion. Then, with of the United States. In mounting one of their the federal panel due to meet soon, Judge arguments, Cohen and Hirschkop quoted from S Bazile finally brought the case back to trial. ) Perez v. Sharp , a 1948 California Supreme In January 1965, six years after the original Court decision against the constitutionality of proceedings, Judge Bazile presided at a hear­ miscegenation laws: "If the right to marry is a ing of the Lovings' petition to have his deci­ fundamental right, then it must be conceded sion set aside. In a written opinion, he rebut­ that an infringement of that right by means of ted each of the contentions that might have a racial restriction is an unlawful infringement forced a reconsideration of their guilt. Point­ of one's liberty." They went on to assert: "The ing back to an 1878 Virginia Supreme Court caprice of the politicians cannot be substituted decision, Kinney v. Commonwealth, he noted for the minds of the individual in what is man's that the Lovings' marriage was "absolutely void most personal and intimate decision. The er­ in Virginia," and that they could not "cohabit" ror of such legislation must immediately be there "without incurring repeated prosecu­ apparent to those in favor of miscegenation tions" for doing so. Referring to the Virginia statutes, if they stopped to consider their ab­ high court's decision in Nairn, he noted that horrence to a statute which commanded that marriage was "a subject which belongs to the 'al I marriages must be between persons of dif­ exclusive control of the States." As for mis­ ferent racial backgrounds. ", Such a statute, they cegenation statutes, he cited the federal pre­ claimed, would be no more " repugnant to the cedent in Pace as well as the Supreme Court's constitution"-and no less so--than the law denial of certiorari in Jackson even after under consideration. Something "so personal Brown v. Board of Education. 58 as the choice of a mate must be left to the in­ By way of conclusion, Judge Bazile dividuals involved," they argued; "race limita­ wrote: "Almighty God created the races white, tions are too unreasonable and arbitrary a ba­ black, yellow, malay and red, and he placed sis for the State to interfere."61 them on separate continents. And but for the The court largely adopted the brief of the interference with his arrangement[,] there state of Virginia as its opinion. On March 7, would be no cause for such maJTiages. The fact 1966, speaking for a unanimous court, Justice that he separated the races shows that he did Hatry Lee Carrico rejected the Lovings' claim not intend for the races to mix."59 that the decision in Nairn-having relied on Back in federal court, the office of the Vir­ Plessy, since overruled in Brown, and on Pace, ginia attorney general, Robert Y. Button, argued since overruled in McLaughlin-should not that the Virginia appellate court should first rule govern the case. In Brown, Carrico wrote, the in the case. The federal court agreed that the Supreme Court of the United States had ruled Lovings should exhaust their appeals in state that "in the field of public education, the doc­ court. District Judge Oren R. Lewis, for one, trine of 'separate but equal' has no place, but it wanted assurance, however, that, if the case had said nothing that might be construed as went to the Virginia Supreme Court, the central extending to marriage." Justice Carrico was able question would be directly faced there. And if to say that the nation's high court itself, in de­ the Virginia court failed to move promptly, the nying certiorari in the Jackson case "just six three-judge panel would resume jurisdiction and months" after Brown, had "indicated that the 82 JOURNAL 1998, VOL. 2

ACLU members Bernard Cohen and Philip J. Hirschkop (pictured in 1971) represented the Lovings in challenging Virginia's antimiscegenation statutes. Something "so personal as the choice of a mate," they argued, "must be left to the individuals involved." Hirschkop later married Suzi Park Thomas, a Korean-American woman who worked for House Speaker Carl Albert.

Brown decision does not have the effect upon it is entitled under the doctrine of stare deci­ miscegenation statutes which the defendants sis, we hold it to be binding upon us here."63 clai m for it." Carrico conc I uded that And yet Virginia's high court still had to McLaughlin had "detracted not one bit from address the way Judge Bazile had handled the the position asserted in the Naim opinion," for sentencing in the case when it was in trial court the Supreme Court had said in deciding that seven years before. Lawyers for the Lovings case that it did so "'without reaching the ques­ had objected that the suspended sentence was tion of the validity of [Florida's] prohibition in effect banishment and that, as the North Caro­ against interracial marriage. "'62 lina Supreme Court had declared in 1953, "A It was clear where Carrico was going: "Our sentence of banishment is undoubtedly void." one and only function in this instance is to Carrico differed. "Although the defendants determine whether, for sound judicial consider­ were, by the terms of the suspended sentences, ations, the Naim case should be reversed. To­ ordered to leave the state, their sentences did day, more than ten years since that decision not technically constitute banishment because was handed down by this court, a number of they were permitted to return to the state, pro­ states still have miscegenation statutes and yet vided they did not return together or at the there has been no new decision reflecting ad­ same time."64 Judge Bazile had nonetheless versely upon the validity of such statutes. We erred. find no sound judicial reason, therefore, to de­ The statute under which Bazile had sus­ part from our holding in the Naim case. Ac­ pended the sentence had as its purpose of­ cording that decision all ofthe weight to which fenders' "rehabilitation," said the court, and RACE AND MARRIAGE 83 the Lovings' real offense had been their "co­ "appears ripe for re view here." On December habitati on as man and wife" in Virginia. Thus 12, 1966, the Court agreed to hear the case. in­ Bazile should have related the suspension of dicating that interest in the question went be­ their sentences to their cohabitation "as man yond black-white marriages and the law, the and wife in this state," not their presence in Japanese American Citizens League submitted Virginia. The Virginia Supreme Court re­ a brief as friend of the court. Cohen and manded the case to circuit court in Caroline Hirschkop, in their brief, reviewed the history County, not to retry the case but merely for of Virginia's miscegenation statutes-going resentencing. Any suspension of sentence all the way back to the seventeenth century­ must be on "conditions not inconsistent with to characterize them as "relics of slavery" and, the views expressed in this opinion." As an at the same time,"expressions of modem day aside, Carrico noted that, "although it has not racism."67 been alluded to by either side," the statute In oral argument, on April 10, 1967, they called for "a sentence in the penitentiary, and conveyed the words of Richard Loving to sup­ not in jail. "65 port their argument. "Mr. Cohen, tell the Court The Lovings had exhausted their appeals [ love my wife, and it is just unfair that I can't in the Virginia courts. Their convictions re­ live with her in Vi rginia."68 mained intact. No matter what sentences the Two months later, on June 12, 1967, Chief Caroline County court might finally impose, Justice Earl Warren delivered the opinion of they would remain unable to do what they con­ the Supreme Court. 69 The Court rejected each tinued to desire to do, "cohabit as man and of the state's arguments as well as each of the wife" in Virginia. Perhaps they would go to the precedents on which it had drawn. Where the penitentiary. New terms of suspension might historical record, the judicial precedents, and permit them to visit Virginia together. Perhaps, the legal logic of the state's brief were incorpo­ in what might appear the most likely outcome, rated in the decision of the Virginia Supreme they could both live in Virginia, but not together. Court, those of the Lovings made their way Then, if they lived together, they faced once into the decision of the Supreme Court of the again-prosecution, conviction, and time in the United States. The decision of the Virginia ap­ penitentiary. pellate court in Naim to the contrary, the Tenth They appealed their case to the Supreme Amendment had to yield to the Fourteenth Court of the United States. Cohen and when it came to the claim of "exclusive state Hirschkop, in their jurisdictional statement to control" over the "regulation ofmarriage."7o the Court, pointed out why the case should be As for the narrow construction of the Four­ heard: "The elaborate legal structure of segre­ teenth Amendment, dependent as it was on the gation has been virtually obliterated with the state's reading of the intent ofthe Framers, the exception of the miscegenation Jaws." They Court harked back to its statement in Brown continued: "There are no laws more symbolic that the historical record was "inconclusive." of the Negro's relegation to second-class citi­ That Virginia's "miscegenation statutes pun­ zenship. Whether or not this Court has been ish equally both the wh ite and the Negro par­ wise to avoid this issue in the past, the time ticipants in an interracial marriage" could no has come to strike down these laws; they are longer pass muster. Should this Court "defer legalized racial prejudice, unsupported by rea­ to the wisdom of the state legislature" on this son or morals, and should not exist in a good matter? WalTen gave the back of the hand to society."66 the state '8 contenti on that "these statu tes Justice John Marshall Harlan's clerk should be upheld if there is any possible basis pointed out to him that the "miscegenation is­ for concluding that they serve a rational pur­ sue" had been "left open" in McLaughlin and pose." The burden of proof rested on the state, 84 JOURNAL 1998, VOL. 2 for "the fact of equal application does not im­ marry not be restricted by invidious racial dis­ munize the statute from the heavy burden of criminations. Under our Constitution, the free­ justification" required by the Fourteenth dom to marry, or not marry, a person of an­ Amendment, particularly when racial classifi­ other race resides with the individual and can­ cations appeared in criminal statutes. 71 That not be infringed by the State."74 test, already applied to interracial cohabitation Chief Justice Warren's final sentence put in McLaughlin, now applied to marriage as an end to the Lovings' banishment from Vir­ well. ginia and their odyssey through the courts. The Chief Justice declared that "we find "These convictions must be reversed."75 Not the racial classifications in these statutes re­ only could the Lovings live in Virginia with­ pugnant to the Fourteenth Amendment, even out fear of prosecution for their interracial assuming an even-handed state purpose to pro­ marriage, but laws similar to Virginia's fell in tect the 'integrity' of all races." Moreover, the fifteen other southern states as welL Court's recent decision in McLaughlin under­ The Supreme Court traveled a great dis­ cut the relevance of Pace. As Warren now put tance from Pace v. Alabama in 1883 to Lov­ it, "The clear and central purpose of the Four­ ing v. Virginia in 1967. The Lovings had te­ teenth Amendment was to eliminate all official nacity, the commitment to see their case state sources of invidious racial discrimination through. In addition, they had a compelling in the States." Quoting Justice Stewart's con­ case, able lawyers, and the good fOltune to take curring opinion in the McLaughlin case, in their case to the Supreme Court at an auspi­ which Justice Douglas had joined, the Chief cious time. Justice wrote: "Indeed, two members of this COUlt have already stated that they 'cannot Endnotes conceive of a valid legislative pillpose ... which makes the color of a person's skin the test of I Loving v. Virginia, 388 U.S. I 2 (1967). whether his conduct is a criminal offense."'72 2 Code of Alabama (1867). 689-70 (title I, ch. 5, arts. The Chief Justice was sure of the Court's 3598, 3602). .l Ellis v. Slate, 42 Ala. 525 (1868). recent history in civil rights cases. "We have 4 Ibid., 526. consistently denied the constitutionality of 5 Burns v Stale, 48 Ala. 195, 197 (1872). measures which restrict the rights of citizens 6 Ibid., 197-98; Dred Scolt v. Sandford, 60 U.S. (19 How.) on account of race. There can be no doubt that 393,408 (1857); Paul Finkelman, Dred Scott v. Sandford:A restricting the freedom to marry solely because Brief History with Documents (Boston: Bedford Books, of racial classifications violates the central 1997). 7 Ford v. Siale, 53 Ala. ISO, 151 (1875); The Slaughterhouse meaning of the Equal Protection Clause."73 Cases, 83 U.S. 36 (1873); Richard L. Aynes, "Constricting As for the Due Process Clause, the Chief the Law of Freedom: Justice Miller, the Fourteenth Amend­ Justice noted that "the freedom to marry has ment, and the Slaughter-House Cases," 70 Chicago-Kenl long been recognized as one of the vital per­ Law Review, 627-88 (1994). sonal rights essential to the orderly pursuit of S Ford v. Stale, 151. 9 Green v. Siale. 58 Ala. 190 (1878), 191. happiness by free men." He explained: "To deny 10 Ibid., 191 this fundamental freedom on so unsupportable II Ibid., 192. a basis as the racial classifications embodied in 12 Hoover v. State, 59 Ala. 57, 58-60 (J878). these statutes, classifications so directly sub­ Il Pace & Cox v. State, 69 Ala. 231 (1882); Transcript versive of the principle of equality at the heart of Recor(~ Pace v. Alabama (Record No. 908), 1-3. of the Fourteenth Amendment, is surely to de­ " Transcript of Record, 5. 15 Pace & Cox v. Slale, 232. prive all the State's citizens of liberty without 16 Brief for Appellant, 4-6. due process of law. The Fourteenth Amend­ 17 Brief for Appellee, 2-3. ment requires that the freedom of choice to " Ibid., 3. RACE AND MARRIAGE 85

19 Brief for Appellant, 2; Brief for Appellee, 6, 9, I I. 197 Va. 734, 735 (1956). See the caustic evaluation of

10 Brieffor Appellee, 15- 16. the Supreme Court's actions, Mark Tushnet, "The

11 ibid., 5,14. Warren Court as Hi story : An Interpretation," in

22 Pace v. Alabama, 106 US. 583, 584-85 (1883). For further Tushnet, ed., The Warren Court in Historical and analysis see David P Currie, The Constitution in the Su­ Political Perspective (Charlottesville: University preme Court:The First Hundred Years, 1789-1888 (Chi­ Press of Virginia, 1993), 5. cago: University of Chicago Press, 1985),387-90. J9 Richmond Times-Dispatch, 19 Jan. 1956: 12.

2J The Civil Righls Cases, 109 U.S. 3 (1883); Plessy v. 40 Naim v. Naim, 350 U.S. 985 (1956); Richmond Ferguson, 163 U.S. 537 (1896). Times-Dispalch, 13 Mar. 1956: 3. See Walter 24 Plessy v. Ferguson, 545, 547. Wadlington, "The Loving Case: Virginia's Anti-misce­ 25 Buchanan v. Warley, 245 US. 60(1917); Philip B. Kurland genation Statute in Historical Perspective" 52 Virginia and Gerhard Casper, eds., Landmark Briefs and Argu­ Law Review 1189, 1210-1 2 (1966) and Marty n, "Rac­ ments ofthe Supreme Court of the United States: Consti­ ism in the United States," 1231-38. tutional Law (Arlington, VA: University Publications of 41 McLaughlin v. Stale, 153 So.2d I (1963); McLaughlin America, 1975), 18: 36,76-77,130,158-60, 272-73, 436, 442. v. Florida, 379 U.S. 184, 187 (1964); The New York

16 Buchanan v. Warley, 79,81. Times, I Nov. 1963: 32 .

27 Jackson v. Siale, 37 Ala. App. 519, 52 1 (1954). 41 McLaughlin v. Florida, 187.

18 Jackson v. Stale, 260 Ala. 698 (1954); Jackson v. 4J Ibid, 186-87, 193-94. For greater detail and further Alabama, 348 U.S. 888 (1954); Brown v. Board of analysis, see Wadlington, "The Loving Case," 1219- Education, 347 US. 483 (1954); Brown v. Board of 22; Sohn, "Principle and Expediency," 94-107; Educalion, 349 U.S. 294 (1955). For more detailed Martyn, "Racism in the United States," 1268-79; and analysis see Chang Moon Sohn, "Principle and Expe­ David P Currie, The Constitution in the Supreme diency in Judicial Review: Miscegenation Cases in the Court: The Second Century, 1888-1986 (Chicago: Supreme Court" (Ph.D. diss., Columbia University, University of Chicago Press, 1990), 416.

1970),70-73, and Byron Curti Martyn, "Racism in 44 McLaughlin v. Florida, 188-89. the United States: A History of Anti-Miscegenation 45 Ibid. , 191-92. Legislation and Litigation" (Ph.D. diss., University of 46 Ibid, 196. Southern California, 1979), 1247-49. 47 Ibid., 195-96. 29 Jack Greenberg, Race Relations and American "Ibid., 198. Law (New York: Columbia University Press, 1959), 49 Tinsley E. Yarbrough, John Marshall Harlan: 345. See also Walter F. Murphy, Elements of Judi­ Great Dissenter of the Warren Court (New York: cial Strategy (Chicago: University of Chicago Press, Oxford University Press, 1992), 267-69.

1964), 192-93 50 Loving v. Commonweallh (Record No. 6163), Su­ 30 Justice William O. Douglas Papers, BOK 1156, Li­ preme COllrl of Appeals of Virginia, 2-4; interview brary of Congress. For a related observation that, given with Mildred D. Loving, 7 Jan. 1994. the furor in the South over Brown v. Board of Educa­ 51 Loving v. Commonweallh (Record No. 6163), 5-6. lion, "the last thing in the world the Justices wanted to 52 Phone interview with Mildred D. Loving, 7 Jan. deal with at that time was the question of interracial 1994; interview with Mildred D. Loving, 12 Aug. 1995; marriage," see Philip Elman, "The Solicitor General's Polk s Washinglon Cily Direclory (1962), 226, 950; Office, Justice Frankfurter, and Civil Rights Litiga­ "The Crime of Being Married," Life Magazine 60 (18 tion, 1946-1960: An Oral History," 100 Harvard Law Mar. 1966): 85-9 1. Review, 817, 845-47 (1987). 5J Richmond News Leader, 29 Oct. 1964: 21. At the 31 William O. Douglas Papers, Library of Congress; time, no Virginia ACLU affiliate yet existed.

Jackson v. Alabama, 348 U.S. 888 (J 954). 54 The Lovings are listed as late as 1967 as living at the J1 Naim v. Virginia, 350 U.S. 891 (1955); Naim v. home of Aiel' Byrd . Phone interview with Mildred D. Virginia, 350 US. 985 (1956); Sohn, "Principle and Loving, 7 Jan. 1994; Polks Washinglon City Directory Expediency," 73-94; Richmond Times-Dispatch, 7 Oct. (1967),827.

1954: 2; 19 Jan. 1956: I. 55 Interview with Bernard S. Cohen, 4 Jan. 1994; Mo­

JJ Richmond Times-Dispalch, 14 June 1955: 5. tion to Vacate Judgment and Set Aside Sentence, 6 34 Sohn, "Principle and El'pediency," 74-75. Nov. 1963, Loving v. Commonweallh (Record No.

35 Naim v. Naim, 197 Va. 80, 90 (1955). 6163),6-7.

J6 Ibid., 88. 56 Interview with Bernard S. Cohen, 4 Jan. 1994; phone

37 Bernard Schwartz, Super Chief: Earl Warren and interview with Philip J. Hirschkop, 18 Aug. 1994.

His Supreme Court-A Judicial Biography (New 57 Richmond News Leader, 28 Oct. 1964: 23, Oct.. York: New York University Press, 1983), 158-62. 1964 : 21 ; Th e New York Times, 29 Oct. 1964: 26, 29

38 Naim v. Naim, 350 U.S. 891 (1955); Naim v. Naim , Dec. 1964: 35. 86 JOURNAL 1998, VOL. 2

58 Opinion, Loving v, Commonwealth (Record No, 6 I 63), New York Tim es, 8 Mar. 1966: 26; 30 July 1966: 9; 13 Dec, 10-12; Kinney v Commomvealth, 7 I Va. (30 Gran.) 858 (1878). 1966: 40; Kurland and Casper, eds" Landmark Briefs and

59 Opinion, Loving v. Commonwealth (Record No. 6163), Arguments, 64: 763,

15. 68 Kurland and Casper, eds" Landmark Briefs and Argu­

60 Th e New York Times, 28 Jan. 1965: 14 ; 13 Feb. 1965: ments, 64: 97 I,

17. 69 Schwartz, Super Chief, 668-69; Ed Cray, Chief

6 1 Perez v, Sharp, 32 Cal. 2d. 711, 734-35(1948) (l. Justice: A Biography of Earl Warren (New York: Carter concurring); Loving v, Commonwealth (Record Simon and Schuster, 1997),449-54; Peggy Pascoe, "Misce­ No. 6163), 10. Regarding a series of cases that had genation Law, Court Cases, and Ideologies of 'Race' in developed the concept of privacy-a concept of cen­ Twentieth-Century America," Journal oj American His- tral importance in the Court's approach to marriage in 10lY 83 (June 1996): 44-69; Sohn, "Principle and Expedi­ Loving-see David 1. Garrow, Liberty and Sexual­ ency," 107-120; Martyn, "Racism in the United States," ity: The Right to Privacy and the Making of Roe 1298-1320; and Robert J, Sickels, Race, Marriage, and the v. Wade (New York : Macmillan, 1994), ch. 4. Law (Albuquerque: University of New Mexico Press, 1972), 62 Loving v. Virginia , 206 Va . 924, 926-29 (J 966). 1-3, 76-9J ,104-110,

63 Ibid" 929. 70 Laving v Virginia , 388 U,S, 1,7 (J 967),

64 Ibid, 930, 71 Ibid. , 8-9,

65 Ibid" 930-31. 72 Ibid" 10-12,

G6 Kurland and Casper, eds., Landmark Briefs and 7l Ibid" 11-12,

Arguments, 64: 787-88. 74 Ibid" 12 , " Nimetz to Harlan, 10 Oct. 1966, John Marshall Harlan " Ibid" 12 ; The New York Times, 13 June 1967: 1,28; Papers, Box 285, Mudd Library, Princeton University; The Richmond Times-Dispatch, 13 June 1967: 1, 4, RACE AND MARRIAGE 87 Table of Contents

I. Introduction 89 A. Brahmin Bashing 90 B. When Did He Lose His Fastball? 91

II. Antitrust in 1919 93 A. The Federal League 93 B. Federal Baseball: The Opinion 93

III. Antitrust in 1949 97 A. The Mexican League 97 B. Gardella's Helping Hand 98

IV. From Toolson to Flood 100 A. The Bait 101 B. The Switch 102 C. Strike Three 105

V. Wrong on the Facts 107 A. Primitive Baseball 107 1. The Black Sox Scandal 109 2. The Pitch That Killed 110 B. Postwar Bliss-and Broadcasting 112 C. The "Business" of Baseball 114

VI. Wrong on the Law 115 A. Whose Alternative Argument? 115 B. "Just The Smartest Guy Who Ever Lived" 118

VII. Stealing Holmes: Why Flood was Wrong 119

VIII. Conclusion 122 Antitrust and Baseball: Stealing Holmes

Kevin McDonald

I. Introduction this: It happens every spring. The perennial hopefulness of opening day leads to talk of LEVEL ONE: "Justice Holmes baseball, which these days means the business ruled that baseball was a sport, not a of baseball - dollars and contracts. And business." whether the latest topic is a labor dispute, al­ LEVEL TWO: "Justice Holmes held leged "collusion" by owners, or a franchise that personal services, like sports and considering a move to a new city, you eventu­ law and medicine, were not 'trade or ally find yourself explaining to someone - commerce' within the meaning ofthe rather sheepishly that baseball is "exempt" Sherman Act like manufacturing. That from the antitrust laws. view has been overruled by later In response to the incredulous question cases, but the exemption for baseball ("Just how did that happen?"), the customary remains." explanation is: "Well, the famous Justice Oliver Wendell Holmes, Jr. decided that baseball was exempt from the antitrust laws in a case called The truly dogged questioner points out Federal Baseball Club ofBaltimore v. National that Holmes retired some time ago. How can we

League of Projessionai Baseball Clubs, I and have a baseball exemption now, when the an­ it's still the law." If the questioner persists by nual salary for any pitcher who can win fifteen asking the basis for the Great Dissenter's edict, games is approaching the Gross National Prod­ the most common responses depend on one's uct of Guam? You might then explain that the level of antitrust expertise, but usually go like issue was not raised again in the courts until 90 JOURNAL 1998, VOl. 2 the late I 940s, when there were several more of the baseball exemption: cases challenging baseball's reserve clause on antitrust grounds. In fact, a Second Circuit [1]n Federal Baseball, Justice panel including Learned Hand held in 1949 that Holmes (very wise in many respects, an antitrust complaint against major league but not here) set forth a very limited baseball could not be dismissed on its face, view of interstate commerce .. . . because the plaintiff might prove that the ef­ Federal Baseball, which held that fect of radio, television, and other developments professional baseball was not in in­ had transformed the game into an enormous terstate commerce and thus not sub­ interstate business.2 ject to the federal antitrust laws, is When one of those cases finally reached still the law today, enshrined on the the Supreme Court in 1953, however, the Court throne of stare decisis by Flood v. did not agree with Judge Hand, holding in a per Kuhn , even though it was described curiam opinion that Holmes' decision in Fed­ by Justice Douglas in his dissent in eral Baseball would be followed "[ w]ithout re­ that case as "a derelict in the stream examination of the underlying issues."3 The of the law."s Supreme Court also made it clear that the rule of Federal Baseball would be strictly limited The reaction of others has ranged from to baseball, however, in a series of other deci­ thumping denouncement (Judge Jerome Frank sions during the 1950s refusing to apply the of the Second Circuit called the decision, and same exemption to professional boxing and I am not making this up, "an impotent football. ("Oh, so baseball is exempt, but foot­ zombi[e]"6) to gentle embarrassment on ball isn't. That makes sense.") Holmes' behalf (Judge Henry Friendly, also The ballplayers gave it one more try in the of the Second Circuit, " acknowledge[d] earl y 1970s when Curt Flood flatly refused to .. . that Federal Baseball was not one of Mr. be traded from St. Louis to Philadelphia and Justice Holmes' happiest days . . . ." 7) On the persuaded the Supreme Court to revisit the facts, one recent Holmes biographer calls issue. 4 However, Justice Blackmun, in a giddy Federal Baseball "remarkably myopic, al­ opinion that began with his listing eighty-eight most willfully ignorant of the nature of the of his favorite old-time ball players, pointed enterprise."8 On the law, Justice Douglas was out that Federal Baseball had never been over­ at his most dismissive when noting in Flood ruled, that those involved in professional base­ v. Kuhn that the "narrow, parochial view of ball had relied on their exemption from the commerce" reflected in Federal Baseball antitrust laws for fifty years, and that Congress could not survive the Court's "modern deci­ had failed to remove the exemption during that sions."9 time. Thus, he concluded, it was up to Con­ For still others, the Federal Baseball de­ gress, not the Supreme Court, to change the cision is only Count 1 in a wide-ranging in­ result in Federal Baseball. Congress has done dictment of Holmes' antitrust expertise. nothing, so the exemption remains. Holmes' dissent in Northern Securities Co. v. United States, IO has received similar fail­ ing marks. Hans Thorelli, the author of one of A. Brahmin Bashing antitrust's weightiest tomes (the copy in my Plainly, Federal Baseball has left the anti­ firm's library weighs a daunting 6.1 pounds), trust lawyer's Justice Holmes a rather be­ dismissed Holmes' opinion as follows: draggled figure. My colleague Joe Sims has provided a characteristically unvarnished sum­ Undoubtedly Holmes was one of mation of what I take to be the prevailing view the great justices of this century, but STEALING HOLMES 91

it is doubtful whether he would have earned that reputation had he not in later cases reached beyond the level of sophistication evidenced in this dissent."

Former Circuit Judge Robert Bork also has difficulty with Holmes in Northern Secu­ rities, not because he dissented (Judge Bork would have dissented too), but because he so clearly rejected Judge Bork's view of the original purpose of the Sherman Act.'2 Bork asserts instead that Holmes "mistook [Justice] Harlan's meaning" in the majority opinion, and thus simply raised some fundamental questions not unworthy of analysis, but irrelevant in Northern SecuritiesY When he had occasion to cite that dissent in an opinion of his own, Judge Bork characterized Holmes as "miscon­ struing the rule applied by the majority."'4 "Holmes was the greatest legal thinker and Obviously, this is heavyweight criticism. greatest judge in our history." '6 Compare these These are famous judges and accomplished sentiments to the derision heaped upon Fed­ antitrust experts; their disdain for Holmes' an­ eral Baseball (along with "zombie" and "der­ titrust opinions in general, and Federal Base­ elict," it has been tagged with the law's most ball in particular, is impressive. Placing the demeaning label : "limit[ed] ... to [its] reputation of the author and the baseball opin­ facts"'7), and the contrast is compelling. lfthis ion side-by-side, moreover, adds to the won­ critique is accurate, Federal Baseball repre­ derment. This is Holmes, after all. Despite the sents our most exalted judge at his lowest trendy deconstructions of recent years, moment. "Holmes remains the towering figure of American law."'s Those are the words of B. When Did He Lose His Fastball? antitrust's own towering figure, Richard A. Posner, who concludes his introduction to a Several springs ago, 1 set out to discover symposium on the 100th anniversary of The how this could have happened. How could Path of the Law with the observation that Holmes be so wrong? Did his weak hold on

Eight new ball parks, including Chicago's Wrigley Field (pictured above), were constructed in 1913. Coal magnate James Gilmore (top) had persuaded a group of tycoons to finance them in order to transform the Federal League from a minor league in the Midwest into a third major league. 92 JOURNAL 1998, VOL. 2 antitrust issues cause him to misapprehend the If that is not enough to make you uncom­ true interstate nature of professional baseball? fortable, consider this: Who is the antitrust Was he too old at eighty-one to see that big­ oracle cited for the proposition that Federal league baseball was an essential thread in the Baseball is a "derelict in the stream of the law"? American fabric, a cultural fixture embodying William o. Douglas. That is, the same Justice all the principles of healthy competition and who was responsible (along with Justice Black) sportsmanship that make it the quintessential for the theories of the 1960s that led to such national game? excesses as Von s Grocery,19 in which the Court At this point, something clicked. I had a blocked a grocery store merger in Los Angeles mental picture of Holmes sitting across from because the post-merger store would have had the mountainous first Justice Harlan discuss­ a five percent share of the market. The same ing the Northern Securities case, and saying: Justice who suggested that exclusive territo­ "Now, hang on there, J.M .; you're going too ries for paper routes might be illegal in Albrecht fast for me. Please repeat that last point." It v. Herald,2° a case generally perceived as a dis­ didn't quite work. Most of these critiques ac­ service both to the law of antitrust conspiracy knowledge that Holmes was brilliant in some and price fixing, and unanimously overruled by areas, but conclude that he was a dullard on the Supreme Court in 1997. 21 In other words, the question of antitrust. In other words, this is the "trees have standing" Bill Douglas,22 Holmes, master of the common law of unfair being widely quoted to bash Holmes on an competition and at the height of his powers antitrust issue. (And you thought the '69 Mets on the Massachusetts Supreme Judicial Court were surprising.) when the Sherman Act was passed in 1890,just That did it. I decided it was time to re-read did not get it. Sure, he got lucky on some First Federal Baseball, Toalson, and Flood v. Kuhn. Amendment cases, and was dead solid perfect They in tum led me to read some other things. on Lochner, but this antitrust stuff was too much The result was a historical romp that ultimately for him. focused on two of baseball's most fascinating Poor dumb Holmes. eras, some thirty years apart. The featured base­ And poor dumb Brandeis, too. The Fed­ ball personalities are larger than life, ranging eral Baseball decision was unanimous, after from Shoeless Joe Jackson and Babe Ruth to all. You are not as much to blame if you did Casey Stengel and Stan Musial. The same holds not write the opinion, but it can't be one of for the judges, from Holmes and Hand to your "happiest days" either. (Whether one Frankfurter and Douglas. Most of the journey praises or denounces Brandeis' responsibil­ consists of simply following the progress of ity for the Federal Trade Commission Act, he baseball in the antitrust courts from Federal is seldom accused of being a dull tool.) Poor Baseball in 1922 to Flood in 1972. With the dumb Chief Justice Taft, as well. Taft is re­ knowledge gained along the way, we can step vered by most antitrust historians, including back and ask whether the antitrust laws could Judge Bork, for his opinion while still a Cir­ be applied to professional baseball now with­ cuit Judge in the Addyston Pipe case l8--one out repudiating Federal Baseball. We may of the first decisions to make it clear that the find that the truth about the basebaJi "exemp­ Sherman Act had not unwittingly outlawed vir­ tion" and the conventional wisdom are some­ tually all commercial arrangements. Such a what different; as different as Ty Cobb and Joe prescient thinker must certainly have looked DiMaggio; as different as the telegraph and the back with shame on his vote in Federal Base­ television; as different as baseball in 1919 and ball if it is as bad as the conventional wisdom baseball in 1949. holds. STEALING HOLMES 93

II. Antitrust in 1919 Senators, could not match. Griffith boldly went to Chicago and asked Charley Comiskey A. The Federal League for the $10,000, on the grounds that Comiskey Since the predecessor of the current Na­ would not want the Big Train drawing crowds tional League was founded in 1876, several ri­ away from his cross-town White Sox. val leagues have sprung into existence. While Comiskey complied, and Johnson remained a most of these upstart leagues are gone, nearly Senator. After two reasonably successful sea­ all could be described as "successful," at least sons,26 the Federal League brought an antitrust for many of those who made and controlled the suit against all the National and American investments. The story of the Federal League League teams, which was heard by a federal fits comfortably within the general pattern: A judge with a name worthy of a power forward group of exceptionally wealthy men quickly in the NBA: Kenesaw Mountain Landis. Per­ fonned a to compete head-to-head with haps aUditioning for his future role as the National and American Leagues, easily baseball's first conunissioner, Landis simply sat lured many outstanding players with the prom­ on the caseY With the lawsuit standing still, ise of more money, and ultimately merged much and the over-supply of professional baseball of the new league and its assets with the exist­ failing to create its own demand in the mid- ing league for hefty compensation.23 191 Os, the Federal League suit was resolved by The Federal League was a minor league in the "Peace Agreement" reached in December the Midwest when coal magnate James A. 1915. The agreement required the defendants Gilmore became its president in 1913. He soon to assume $385,000 in Federal League players' persuaded a group of businessmen to convert contracts; it allowed Weeghman to buy the the Federal League into a third league. Chicago Cubs, and Phil Ball the St. Louis The group included cafeteria Charles Browns; it provided for substantial annual pay­ Weeghman (Chicago), oil tycoon Harry Sinclair ments to several of the Federal League owners (Newark), bakery executive Robert B. Ward over many years; and it transferred two of the (Brooklyll), and ice-and-fuel operator Phil Ball new Federal ball parks to organized baseball. (St. Louis).24 Eight new ball parks were erected The Federal Baseball Club of Baltimore in three months, one of which grew up to be would have none of this treaty. That club was Wrigley Field. therefore excluded from the settlement, and it Many top players were enticed away by filed the antitrust suit that became Federal the Federal League's offers of more money, Baseball. The case was tried in Washington, including Joe Tinker, Hal Chase, Mordecai D.C., during the spring of 1919. The jury came "Three Finger" Brown, and Eddie Plank back on April with a plaintiff's verdict for (baseball's winningest left-handed pitcher). $80,000, which was trebled as provided in the 28 For the National and American League play­ statute. In December 1920, however, the Court ers who did not jump, the resulting price wars of Appeals, "after an elaborate discussion, held for their services were fierce. For example, that the defendants were not within the Shennan Ty Cobb's salary doubled, and Tris Speaker Act."29 The plaintiff chose to stand on the received the stunning sum of$18,000 per year record and appeal directly to the Supreme to remain with the Boston Red SOX. 25 The caf­ Court. eteria king, Weeghman, was especially driven to buy Washington's Walter Johnson (who had B. Federal Baseball: The Opinion gone a mere 36-7 in 19 for his Chicago The opinion in Federal Baseball was clas­ Whales. His offer of a $16,000 salary and a sic Holmes; after describing the "nature of the $10,000 signing bonus was one that the finan­ business" of organized baseball, he set out his cially strapped Clark Griffith, owner of the legal analysis in a single, intense paragraph, 94 JOURNAL 1998, VOL. 2

After World War" the leader of the Mexican League. a wealthy busi­ nessman named Don Jorge Pasquel (left). decided to turn the tables on the American leagues by recruiting their best talent by offer­ ing exorbitant salaries. When Pasquel tried to lure the great Stan Musial from St. Louis (below. slid­ ing home>. however. he so rattled the U.S. leagues that the president of the Cardinals. Sam Breadon. flew to Mexico City and somehow per­ suaded him to quit making such wild offers. STEALING HOLMES 9S which I will quote momentarily in all its damn­ mere act of a person in allowing him­ ing brevity. In that paragraph, he first addressed self to be transported from one State the issue found conclusive by the Court of Ap­ to another, without any personal ef­ peals, that is, whether the interstate aspects of fort. 32 organized baseball were sufficient to bring it within the Sherman Act, or were merely "inci­ In other words, even if something is not com­ dental" to the concededly local exhibition it­ monly considered an item of commerce (e.g, self. This analysis had been established by the a person), it can affect interstate commerce sim­ Supreme Court in Hooper v. California.3° I say ply by its interstate transport. the baseball exhibition itself was "concededly" Holmes responded in a two and a half-page local because the plaintiff was careful not to opinion, the essence of which is this: argue in its brief to the Supreme Court that the game itself was interstate commerce: [J] The business is giving exhibitions of base ball, which are purely state The Court is not concerned with affairs. It is true that, in order to at­ whether the mere playing ofbasebalJ, tain for these exhibitions the great that is the act of the individual player, popularity that they have achieved, upon a baseball field in a particular competitions must be arranged be­ city, is by itself interstate com­ tween clubs from different cities and merce ... States. But the fact that in order to The question ... is whether the give the exhibitions the Leagues must business in which defendants were en­ induce free persons to cross state when the wrongs complained lines and must arrange and pay for of occurred, taken as an entirety, their doing so is not to change was interstate commerce ... the character ofthe business. Accord­ ing to the distinction insisted upon in Hooper v. Cal~rornia, 155 US. The plaintiff argued that, even if the exhibi­ 648, 655, the transport is a mere in­ tions were not interstate, the interstate travel cident, not the essential thing. [2] required to bring them about, as well as sev­ That to which it is incident, the exhi­ eral other interstate "incidents" (e.g., telegraph bition, although made for money reports, baseball and equipment contracts, would not be called trade or com­ etc.), demonstrated the interstate nature of or­ merce in the commonly accepted use ganized baseball. of those words. As it is put by the de­ In the remainder of the crucial paragraph, fendants, personal effort, not related Holmes responded to the argument made by to production, is not a subject of the plaintiff to counter the defendants' even commerce. That which in its consum­ broader assertion that "[p]ersonal effort, not mation is not commerce does not related to production, is not a subject of com­ become commerce among the States merce." That point is irrelevant, the plaintiff because the transportation that we had have mentioned takes place. To repeat the illustrations given by the Court . .. [W]e are not concerned with below, a firm of lawyers out any such question here. It may be a member to argue a case, or the passed by saying ... that interstate Chautauqua lecture bureau sending commerce may be created by the out lecturers, does not engage in such 96 JOURNAL 1998, VOl. 2

commerce because the lawyer or lec­ of baseball "would not be called trade or com­ turer goes to another State.)) merce as those terms were commonly under­ stood. ")5 As usual, the concepts are densely packed, the Nor is Professor White's reading new. Al­ pace is quick, and the prose is free ofpatroniz­ though Holmes' opinion was little noted when ing words of transition (e.g., "now I will tum it came out, a rash of commentary appeared as from Hooper v. California to consider the second series of cases culminating in the plaintiff's other argument .. ..") I have placed Supreme Court's 1953 Toalson decision moved a [I] and [2] in brackets to indicate the point at through the courts. In a typical description, the which he turns to consider the second argu­ Harvard Law Review had Holmes' opinion ment. Plainly, it is the second argument that has resting on dual grounds, holding that been the principal source of derision among baseball was a local enterprise un­ antitrust lawyers over the years. For its under­ changed in character by the elements lying assumption is the outdated notion that of interstate transportation incident to "services" should be treated differently under the exhibition, and that personal ef­ the antitrust laws than "manufactures." (Today, fort in the sport, since unrelated to the antitrust economist would point out-while production, was not a subject of com­ gesturing with an extinguished pipe-that one merce.)6 can measure the price elasticity of demand as effectively for legal services as for shoes.) When Learned Hand issued his 1949 opinion Thus, that second, or alternative, argument is in favor of a ballplayer named Danny Gardella, the one that rankles; those are the words from a commentator could not resist pointing out which Holmes fans avert their gaze. that Holmes' opinion required any successful If you think that describing Holmes' para­ antitrust plaintiff to jump through two separate graph as a two-part argument in the alternative hoops: is contrived, rest assured that it has been so construed as far as I am aware by every com­ mentator and Judge that has addressed the In order to bring "organized baseball " question. No less a student of Holmes than G. within the purview of [the antitrust] Edward White has written that the "critical para­ laws, two fundamental questions must graph" of Holmes' opinion be answered in the affirmative. (I) Is baseball an interstate activity? (2) Is made the following arguments in suc­ baseball trade or commerce?)7 cession .... The transport [in inter­ state commerce] was merely 'inci­ Since both questions must be resolved in the dental' to the exhibition. The exhibi­ plaintiff's favor, the author argued, giving a dif­ tion, in fact, could not be called 'trade ferent answer to the first question, as did or commerce' at all ....)4 Learned Hand in Gardella, is insufficient to change the result in Federal Baseball: He even describes the place in the paragraph where I have inserted a "[2]" as the "point .. . The rationale of the Federal [Base­ where Holmes sought to move on from his dis­ ball] case is that baseball is not trade cussion of ... interstate transportation" as in­ or commerce, and it is submitted that cidentally affecting commerce, in order to the court's decision would have been make the additional point that the exhibition quite the same had the facts shown STEALING HOLMES 97

that every ball park was located on a for being on other issues, that is, "a strikingly state line and the players had to pass modern figure who anticipated the temper of from one state to another as they ran an America which had not yet been bom."48 If from first to second base. 38 a deeper understanding of Federal Baseball can be found - or at least an understanding of The judges, too, strained to find a grace­ what went wrong it will be worth the effort ful exit for Holmes with the common under­ only if we keep our standards high. He must standing that Federal Baseball had "decided walk away under his own power or stand and that professional baseball was then neither take his medicine. This is Holmes, after all. 'commerce' nor' interstate. "'39 Justices like Sherman Minton40 and Felix Frankfurter41 til. Antitrust in 1949 would have accepted the result in Federal A. The Mexican League Baseball and applied it to other sports. Jus­ tices like William O. Douglas42 and William As America's soldiers returned triumphant Brennan43 would have overruled it outright. to home, hearth, and ballpark after World War Justices like Earl Warren44 and Tom Clark45 II, the next serious competitive threat to major ultimately persuaded their Brethren to accept league baseball was launched by five dazzling the holding of Federal Baseball but confine brothers named Pasquel: Don Jorge, Alfonso, it to a single sport. Yet none of these judges Ge rardo, Bernardo, and Mario. 49 They con­ questioned the prevailing reading of Holmes' trolled the Mexican League, which was eager opinion. Thus, when the Supreme Court last to expand and improve its image. The eldest considered the question in Flood v. Kuhn, sev­ brother, Don Jorge Pasquel, had a personal for­ eral Justices dissented, but none disputed Jus­ tune estimated at $30 million, and in 1946 he tice Blackmun's description of Federal Base­ decided that it would be interesting to have his ball as a dual holding that basebal l "was not league long drained of its best talent by 'trade or commerce in the commonly-accepted American teams - return the favor. There was use of those words' ... ; nor was it interstate, a collective gasp before the 1946 season when because the movement of ball clubs across Luis Olmo of the Dodgers announced that he state lines was merely ' incidental' to the busi­ had signed a three-year contract to play in ness.'746 Mexico for $40,000. 50 This is understandable. For Holmes does Despite the size of the offers, few of the address a two-part argument, and the "trade or early defectors were stars, or even players who commerce" aspect of the opinion has stood were breaking their contracts, and the Mexican as an enduring obstacle to those who would League threat was largely regarded as "a nui­ defend him. It has frustrated glib attempts to sance rather than a problem."51 Then three New let Holmes off the hook with nice debating York Giants under contract for I 946, including points or facile attempts to switch the burden starter George Hausmann, jumped to Mexico. of persuasion. (One could, for example, note Commissioner William "Happy" Chandler re­ that the trial cOUl1 had directed a verdict for sponded with a warning that those who did not the plaintiff, and argue that the verdict would report for the season would be su spended for have had to be reversed anyway.47) But that is a five years. Neither the players nor the Pasquels good thing; this mission is not for sycophants. desisted, however, and early in the season the The reputation of Federal Baseball is as tar­ Mexican League scored its finest catch to date nished as it is because Holmes is said to have by signing three S1. Louis Cardinals. Most no­ been wrong dismally wrong both on the table was pitcher Max Lanier, who had already law (antitrust) and on the facts (baseball). He won his first six starts. 52 fa iled to be precisely what he is given credit It was then that Don Jorge crossed the line. 98 JOURNAL 1998, VOL. 2

He went after Stan the Man. Stan Musial was After Breadon's meeting, two things com­ only twenty-five in 1946, and just back from a bined to end the competitive threat from the year in the Navy, but he had already proven that Mexican League. First, the Pasquels stopped he was "the National League's greatest player making wild offers. Second, most ofthe players and drawing card ...."53 In his first four sea­ who went to Mexico came back like a spiked sons, he led St. Louis to four pennants and volley ball, howling in protest over the condi­ three world championships; he won the bat­ tions in the Mexican "show."59 In all, only sev­ ting title in 1943 and placed second in 1944. enteen players broke their contracts in 1946. 60 He was an all-star twice, and in 1943 was voted But the legal threat had just begun, for the the league MVP. He would go on to play in ten circumstances of the Mexican League defec­ more all-star games and win two more MVP tions and blacklisting combined to create "an awards (1946 and 1948). He placed second in almost exact parallel to the Federal League MVP voting four more times, including 1957, controversy" of the teens. 61 And the returning the year he won his last batting title at age 36. 54 (and suspended) players had little choice but Beyond his talent on the field, however, Stan to sue; by 1948, Max Lanier was pitching in epitomized the postwar wholesomeness to Quebec and Mickey Owen was an auctioneer which professional baseball had so longingly in rural Missouri. Thus did the case of Danny aspired. As he was intensely courted by the Gardella, an undistinguished former outfielder Mexican League that spring, St. Louis papers for the New York Giants, who was then sup­ reported that the "apple-cheeked" father oftwo porting himself as a hospital orderly, come small boys and a baby girl was "moving his fam­ before the Second Circuit Court of Appeals. ily from a crowded hotel to a furnished bun­ galow in southwest St. Louis."55 B. Gardella's Helping Hand The Pasquels pursued Musial with pur­ pose. When he rebuffed their initial offers, they The opinion in Gardella v. Chandlet.u2 fits offered more, until the amount reported grew to well among the quirks and oddities that fre­ $130,000 for five years, with a $65,000 sign­ quent the history of baseball 's antitrust exemp­ ing bonus. Don Jorge must have thought he was tion. For one thing, the principal opinion - getting close, because he sent his brother coming first and announcing the judgment in Alfonso and player-manager Mickey Owen (for­ favor of the plaintiff - was the dissent by merly ofthe Dodgers) to St. Louis to close the Judge Chase. For another, one of the two sepa­ deal, and he announced to the fans at Vera Cruz rate majority opinions was authored by the bom­ that Musial was on the way.56 After a "long bastic Jerome Frank, who waited no longer than conference" in early June, however, Musial the first sentence to characterize Holmes' Fed­ turned them down again.57 eral Baseball opinion as an "impotent At that point, Sam Breadon, the President zombi[e]."63 And Judge Frank was only warm­ of the Cardinals, had had enough. He quickly ing up at that point; he would ultimately liken traveled to Mexico City to have his own "long the reserve clause to slavery, calling it "shock­ conference" with the Pasquels. Although ingly repugnant to moral principles that, at least Breadon's hope for complete secrecy was since the War Between the States, have been dashed when he ran into a vacationing Cleve­ basic in America."64 Those who would defend land sportswriter in the hotel lobby, precisely it (such as his Brother, Judge Chase, appar­ what transpired at the meeting remains a mys­ ently) must of necessity be "totalitarian­ tery. We only know that Don Jorge came out minded."65 and announced that he would no longer seek The other majority opinion was written by to lure players away from "my friend, Sam the seventy-seven-year-old judicial icon, Breadon."58 Learned Hand. Hand instantly focused on the STEALING HOLMES 99 obvious difference between professional base­ missed on its face) to declare the reserve clause baJJ in 1919 and 1949, to wit, the central role per se legal on the one hand (Judge Chase) and of broadcasting by radio and television. The a virtual violation ofthe Thirteenth Amendment business was no longer limited to giving exhi­ on the other (Judge Frank). Nonetheless, an bitions ofbaseball to patrons at a ballpark, Hand inunediate question arises from Hand's analy­ observed, but to viewers and listeners in other sis: what about the alternative argument in Fed­ states as well: eral Baseball? If, as Professor White and so many others have noted, Federal Baseball held [TJhe situation appears to me the same "that baseball was neither a of com- as that which would exist at a "baH merce nor an interstate activity,"68 how can the park" where a state line ran between result change simply by raising the level of in­ the diamond and the grandstand. Nor terstate activity until it is not incidental? can the arrangements between the de­ Doesn't the second argument considered by fendants and the companies be set Holmes mean that Federal Baseball would down as merely incidents of the busi­ have come out the same way even if the bleach­ ness, as were the interstate features ers had been in New Jersey? in Federal Baseball Club v. National Worse yet, Learned Hand did not even ad­ League, supra. On the contrary, they dress the issue. This is especially disturbing are part of the business itself, for that when contrasted with the opinion by Judge consists in giving public entertain­ Frank, who overcame the interstate commerce ments; the players are the actors, the point much as Judge Hand did, but then noted radio listeners and the television spec­ that Holmes' opinion "assigned as a further tators are the audiences.66 ground of its decision that the playing of games, although for profit, involved services, and that Far from an obstacle, Hand found the Federal services were not 'trade or commerce' .'>69 Judge Baseball opinion helpful in its recognition that Frank handled this "further ground" by argu- the "incidents" to the exhibition were inter­ that later decisions of the Supreme Court state in nature, even though insufficient then had "undeniably repudiated" this view, and that "to fix the business at large - with an in­ lower courts could therefore properly treat Fed­ terstate character." Thus, on remand, the issue eral Baseball as li mited to its first ground - at trial would be the "incidental" interstate aspects.70 But that reasoning compels the conclusion that Holmes was simply wrong on the second point and whether all the interstate activities of overruled sub silentio. This kind of anticipa­ the defendants those, which were tory overruling of the Supreme Court, more­ thought insufficient before, in con­ over, is a dangerous practice for a lower court, junction with broadcasting and tele­ as Judge Chase powerfully argued in his dis­ vision - together form a large enough sent. part of the business to impress upon As a judge, Learned Hand was a first-bal­ it an interstate character. lot hall-of-famer. Constitutional scholar Gerald Gunther has noted that "Hand is numbered Hand's next sentence concluded with an odd among a small group of truly great American note of frustration: "I do not know how to put judges of the twentieth century."71 What ex­ it in more definite terms."67 planation can there be for his failure to step That frustration may have come from see­ up to the controlling second argument, for his ing his two Brethren reach out (in a case that addressing only the easy and obvious point, and asked only whether a complaint should be dis- then expressing pique at his inability to resolve 100 JOURNAL 1998, VOl. 2 the issue in "more definite terms"? Did he ig­ enacted.76 nore the issue because he had too much respect The effect of Gardella was even more pro­ for Holmes to concede that Holmes had been nounced in the courts, where it generated a new wrong, or at least hopelessly archaic, in Fed­ supply of antitrust plaintiffs. When George Earl eral Baseball? Unless there is something more, Toolson sued the Yankees, for example, he had Gardella leads us to conclude that the only way not been blacklisted for going to Mexico; he to reach the right result in 1949 without ex­ was not even a Yankee. He had simply refused pressly rejecting Holmes in Federal Baseball, to accept a demotion from the Yankees' AAA even for the inimitable Leamed Hand, was to farm team in Newark to their Class AA farm cut ajurisprudential corner. team in Binghamton. And although virtually If so, Federal Baseball has claimed yet all lower courts facing antitrust attacks on pro­ another great judge as a victim. If so, Holmes fessional baseball quickly dismissed them on and his beleaguered opinion are in deeper than the authority of Federal Baseball,77 it was ever. Gardella that provided the essential "split" in Circuit Court authority and ultimately led to the IV. From Toalson to Flood Supreme Court's grant of certiorari in several cases, including Toalson v. New York Yankees, The repercussions of Danny Gardella's Inc. success were swi ft and dramatic, both for base­ The trial judge in Toalson had framed the baJJ and the antitrust laws. The Gardella deci­ issue as "whether the game of baseball is 'trade sion was issued on February 9, 1949, perhaps or commerce' within the meaning of the Anti­ to coincide with the opening of spring training. Trust Acts." He noted that Gardella was "[t]he Commissioner Chandler was suddenly inspired only decision directly challenging [the] present to "temper [ljustice with mercy," and issued a day validity" of Federal Baseball, but he was declaration of arrmesty for all Mexican contract entirely unimpressed jumpers for the 1949 season.72 Eight months later, during the 1949 World Series, the by the opinion of Judge Frank wherein Gardella case was settled for $60,000 - an act that seemed to close the chapter on the he assumes the role of crystal gazer Mexican League challenge to professional in attempting to determine in advance baseball. that the Supreme Court is going to .. . reverse the Federal Baseball The legal repercussions, however, were 78 more significant. First, Congress began to look Club case. into the affairs of baseball. The Subcommit­ tee on Study of Monopoly Power of the House Thus, the issue was clearly framed for the Su­ Judiciary Committee would issue a report in preme Court in Toalson, and it had three obvi­ 1952 concluding (unsurprisingly) that organized ous choices: (I) uphold the dismissal on the baseball was "intercity, intersectional, and in­ strength of Federal Baseball, as had every terstate."73 Accordingly, "with due consider­ lower court except the Second Circuit, (2) re­ ation of modern judicial interpretation of the verse the dismissal based on the reasoning of scope of the commerce clause," Congress could Learned Hand in Gardella, or (3) overrule Fed­ and should "legislate on the subject of profes­ eral Baseball for the reasons suggested by sional baseball."74 Many bills were introduced Judge Frank and others. But the Court took at that time and thereafter, which would have none of these courses. Instead, it took the first codified the holding in Federal Baseball by step in the greatest bait-and-switch scheme in providing an express exemption75 None were the history of the Supreme Court. STEALING HOLMES 101

Daniel Gardella. an undistinguished former outfielder for the New York Giants. was supporting himself as a hospital or­ derly when his case challenging the black­ listing of players who had joined the Mexi­ can League came before the Second Cir­ cuit Court of Appeals in 1949.

A. The Bait Well, now. You can stare at the Federal The Toalson decision was handed down Baseball opinion as long as you like, but there per curiam. In a single paragraph, shorter even is no suggestion - express or implied - that than the pivotal paragraph in Holmes' opinion, the Congress of 1890 intentionally excluded the Court noted that, due to Federal Baseball, baseball from the Sherman Act. The Toalson "the business has thus been left for thirty years Court seemed to imply that it had unearthed to develop, on the understanding that it was some previously unknown piece of legislative not subject to existing antitrust legislation." history, that may have gone like this: Thus, " if there are evi ls in this field which now warrant application to it of the antitrust laws it Senator Edwards: Surely the Sena­ should be by legislation." The paragraph - tor from Ohio does not suggest that and the opinion - then concluded with this this Anti-Monopoly law - this Ma­ stunning sentence: gna Carta of the working class - would be applied to the purveyors of Without re-examination of the under­ our beloved national pastime! (The lying issues, the judgments below are Louisville Colonels are white-hot, by affirmed on the authority of Federal the way.) Baseball Club of Baltimore v. Na­ Senator Sherman: Of course not, tional League of Professional Base­ Senator. ball Clubs, supra, so far as that de­ cision determines that Congress had no intention of including the business If such a passage exists, neither the author of of baseball within the scope of the Toalson nor anyone since has disclosed it. federal antitrust laws. 79 Indeed, the last sentence of Toalson reads 102 JOURNAL 1998, VOL. 2 like an oxymoron. How can one affirm Fed­ lower court's opinion), and that is where he eral Baseball "so far as that decision deter­ stumbled: mines that Congress had no intention of in­ cluding the business of baseball" within the Although counsel [in Federal Base­ Sherman Act, when that decision "deter­ balf] did argue that the activities of mined" no such thing? If that is the case, in the organized baseball, even if amount­ apt phrasing ofa contemporary law review ar­ ing to interstate commerce, did not ticle, "Toalson would then seem to reaffirm vio late the Sherman Act, the Court nothing."so significantly refrained from express­ Let us take some names here. The seven ing its opinion on that issue83 members of this per curiam majority were Earl Warren, Felix Frankfurter, Hugo L. Black, Will­ Justice Burton did not cite anything in Fed­ iam O. Douglas, Robert H. Jackson, Tom Clark, eral Baseball to support this view, nor could and Sherman Minton. This is arguably as pow­ he. For the notion that the Court "refrained erful a line-up as that of the 1995 Cleveland from expressing its opinion" on the alterna­ Indians, for whom the first baseman batted tive argument is hard to square with the actual eighthY As will become clear, however, not words Holmes used: "As it is put by the de­ even all of these Justices realized the import of fendants, personal effort, not related to pro­ that mischievous last sentence in Toalson. duction, is not a subject of commerce. " 84 Justice Burton,joined by Justice Reed, dis­ Holmes even chose to "repeat the illustrations sented in Toalson. He made short work of the given by the Court below" to show that law­ new notion that there had been any kind of yers and Chautauqua lecturers do not engage congressional exemption exclusively for base­ in commerce simply by going to another state ball: "The [Federal Baseball] Court did not to provide their services. state that even if the activities of organized Justice Burton elsewhere showed his lack baseball amounted to interstate trade or com­ of comfort with the second argument in Fed­ merce those activities were exempt from the eral Baseball with his references to the "mod­ Sherman Act." Relying heavily on the changes em" definition of commerce, and to the facts in baseball since Holmes had written, especially and circumstances of baseball "now." He even radio and television ("[r ]eceipts from these included a footnote with a string-cite to the media of interstate commerce were nonexistent cases that later rejected the restricted view of in 1929") and the elaborate system of minor commerce that prevailed in 1922 - the same leagues "throughout the United States, and cases relied on by Judge Frank in Gardella85 even in Canada, Mexico and Cuba," Justice This demonstrates, once again, the stubborn­ Burton pronounced it "a contradiction in terms ness of the alternative argument for those who to say that the defendants in the cases before would attempt to preserve Federal Baseball's us are not now engaged in interstate trade or reasoning while changing its result. Justice conunerce. " S2 Burton's heart was in the right place, but we Like Learned Hand, Justice Burton argued cannot evade the hard question by asserting­ that the result he sought was consistent with inaccurately - that Holmes evaded it. Federal Baseball, because that case did not foreclose the eventual ity that the interstate as­ B. The Switch pects of the business would someday become more than "incidental." Unlike Hand, however, No doubt because it finds no support in Justice Burton could not bring himself to ig­ the statute or in Federal Baseball, the Toalson nore the alternative "trade or commerce" ar­ Court's attempt to insert an express exclusion gument (it was, after all, the sole basis of the for baseball into the Sherman Act made no im- STEALING HOLMES 103

cedent another decision, also authored by Holmes only one year after Federal Baseball, concerning an interstate vaudeville circuit. In Hart v. B.F Keith Vaudeville Exchange,89 Holmes had applied precisely the same analy­ sis as in Federal Baseball, but because the Hart complaint had been dismissed without a trial for lack ofjurisdiction, the Supreme Court reversed and remanded it to the Southern Dis­ trict of New York on the ground that " what in general is incidental in some instances may rise to a magnitude that requires it to be considered independently."90 Chief Justice Warren there­ fore argued in Shubert that Federal Baseball and Toalson could not have intended an anti­ trust exemption for "every business based on the live presentation oflocal exhibitions." Ac­ cordingly, "[i]fthe Toalson holding is to be ex­ panded - or contracted - the appropriate rem­ The St. Louis Cardinals' decision to trade their edy lies with Congress."~1 star outfielder Curt Flood (pictured) to the Phila­ The defendants in International Boxing delphia Phillies was considered a tragedy by some, but did not raise a legal issue that would Club thought they had an even better case. For normally warrant Supreme Court review. None­ if the Court were drawing lines between dif­ theless, the Court agreed in 1972 to review baseball's antitrust exemption, thus affording ferent types of "live" exhibitions, surely it some Justices the opportunity to change their would agree that an athletic exhibition like box­ positions on the question. ing would be grouped with baseball rather than with a vaudeville act. Once again, however, pression on the lower courts. Instead, they re­ those litigants and the lower courts that agreed acted to the news that Federal Baseball would with them failed to recognize that Toalson had not be disturbed by dismissing challenges to tried to convert the reasoning of Federal Base­ all forms of exhibitions for entertainment that ball into an express exemption rather than an they found indistinguishable in principle from application of a general interstate commerce Federal Baseball. Thus, the very next Term, test. "Surely there is nothing in the Holmes the Court faced two such cases, one involving opinion in the [vaudeville] case," responded theatrical presentations booked in multi-state Chief Justice Warren in International Box­ theaters (Shubert) ,86 the other involving pro­ ing, "to suggest, even remotely, that the Court fessional boxing (International Boxing was drawing a line between athletic and non­ Club). Nl Both opinions were written by Chief athletic entertainment."92 Indeed, there was not Justice Warren, whose apparent mission was - which is precisely why the theater defen­ to emphasize that, "[i]n Federal dants in Shubert were so vexed about losing. Baseball, ... Justice Holmes was dealing with But what conclusion does that lead to? For the the business of baseball and nothing else." Chief Justice, it meant that the line had to be He explained, moreover, that Toalson was drawn even more arbitrarily, that is, between based on "a unique combination of circum­ baseball and all live exhibitions that were not stances," and was thus "a narrow application basebal1. 93 This is an argument that works only of the rule of stare decisis." 88 if one takes seriously the last sentence of In Shubert, moreover, the Court had as pre- Toalson, attributing the baseball exemption to 104 JOURNAL 1998, VOl. 2 congressional intent. exempt from the Sherman Act all "team sports," But not even everyone who voted for the which would include football. 97 p er curiam opinion in Toolson believed that. At this point, the Supreme Court appar­ Two of those Justices, Minton and Frankfurter, ently perceived a need to speak more plainly. dissented in the boxing case. Justice Minton The opinion of Justice Clark in Radovich v. relied on the alternative argument in Federal National Football League, therefore, an­ Baseball in its purest form: '''Personal effort, nounced that henceforth the rule of Federal not related to production, is not a subject of Baseball and Toolson would be confined "to commerce, ,,, whether interstate or not.94 In the facts there involved, i. e., the business of Toolson , he mistakenly thought, the Court had organized baseball." Justice Clark allowed "reaffirmed the holding" of Federal Base­ that the baseball exemption might be con­ balf.9 5 Because no one was arguing that box­ sidered "unrealistic, inconsistent, [and] ing matches were more like trade or com­ illogical, . .. [and] were we considering the merce than baseball games, he reasoned that question of baseball for the first time upon a the result had to be the same. Justice Frank­ clean slate we would have no doubts."98 The furter, on the other hand, dissented because Radovich Court was willing to live with that the holding in International Boxing made the mistake, but nothing more. Ultimately, the dis­ Court's "narrow" application of stare decisis tinction between baseball and other businesses in Toolson too, well, narrow: for which the lower courts had been searching came down to this and only this: "Federal Baseball held the business of baseball outside I cannot translate even the narrowest the scope of the Act. No other business claim­ conception of stare decisis into the ing the coverage of those cases has such an equivalent of writing into the Sherman adjudication."99 Law an exemption of baseball to the With Radovich, the "bait and switch" was exclusion of every other sport differ­ complete. Those courts and defendants lured ent not one legal jot or tittle from it. 96 by Toolson to apply Federal Baseball to a va­ riety of indistinguishable businesses had been In other words, the application of stare deci­ slapped down in every instance. Far from find­ sis should be based on a principle, even a nar­ ing a rationale that would change the result in row one, but not on the name of the game you Federal Baseball in the 1950s while preserv­ play. These dissents demonstrate that not even ing Holmes' reasoning, the Court had issued a those in the per curiam majority realized that series of rulings that seemed to make the re­ the final sentence of Toolson could possibly sult judicially untouchable while publicly ex­ be taken to mean what it said. posing Holrries' reasoning to even greater ridi­ And the lower courts still did not get it. cule. When an antitrust suit was brought against In retrospect, it is not hard to divine the the National Football League shortly thereaf­ plan that at least some of the Justices had in ter, the Ninth Circuit was sincerely perplexed. mind at the time of Toolson. No one could dis­ The court compared the results in Federal Base­ pute that refusing to apply the antitrust laws to ball and International Boxing, groping for a professional sports in the age of radio and tele­ principled distinction. Unable to use the level vision was, as Professor White puts it, "ab­ of interstate activity or the general category surd."loo Apparently recognizing that absurdity, of sports as the basis, the lightning bolt finally moreover, Congress had held extensive hear­ struck: baseball is a team sport, while boxing is ings and considered numerous bills in the an individual sport. Thus, the Ninth Circuit 1950s that would deal with the problem. At held that Federal Baseball and Toolson must one such hearing, Congress heard testimony STEALING HOLMES 105 from Casey Stengel, Ted Williams, Stan Musial, But Flood did provide the opportunity for some and Mickey Mantle. After Stengel offered a members of the Court to change their positions rambling, pages-long answer consisting of diz­ on the question - which itself may be the best zying double-talk, the room dissolved in laugh­ explanation for the grant of certiorari. ter when Mantle began by saying: "My views Justice Blackmun's opinion is memorable are just about the same as Casey's."IOI With for the opening section, subtitled "The Game," Congress on the verge of acting, the Toalson wherein he describes the early history of base­ Court must have found the following solution ball in the voice of a bedazzled schoolboy: "[t]he irresistible: instead of overruling Holmes and ensuing colorful days are well known."1 05 At seeming to betray the baseball powers that be, one point, he notes that there are "many names why not find a way to limit the exemption to [of old-time players] . . . that have provided tin­ baseball alone, so that no other sport or busi­ der for recaptured thrills" and he proceeds to ness could claim it, and then let Congress re­ list eighty-eight of them. At the end of the list, move the exemption for baseball? Then Fed­ he writes, without apparent irony: "The list eral Baseball would be neither overruled nor seems endless."106 Only two other Justices in problematical; it would be moot. the majority joined Part I of the opinion. Two things went wrong. First, Congress The lengthiest portion of Justice is Congress, and nothing happened. Second, Blackmun's opinion was his description of "The when your solution is based on the absolute Legal Background." This contained lettered fabrication of an express exemption for base­ paragraphs A through I, describing in detail ball, the chance of a result that seems intel­ the leading Supreme Court cases, the legal com­ lectually defensible depends inversely on how mentary on them, and the numerous congres­ often and how publicly you have to explain sional investigations of baseball. It was followed yourself. Which brings us to the third and fi­ by a brief, concluding section applying this nal time professional baseball was brought background to the case at hand. The decision before the Court on this issue, in Flood v. to reaffirm the rule of Federal Baseball and Kuhn .l02 Toalson was based on three principal points: (I) Congress has had the baseball "ex­ C. Strike Three emption" under consideration many times. It Perhaps the clearest indication that no one, has had the opportunity to overrule Holmes including the Supreme Court, found the state legislatively, but has not done so. Thus, by its of the law after Radovich remotely satisfying "positive inaction," Congress "has clearly is the decision to grant certiorari fourteen years evinced a desire not to disapprove [Federal later in Flood v. Kuhn . 103 Because, technically, Baseball and Toalson] legislatively." there was nothing "cert-worthy" about the case. (2) "[S]ince 1922, baseball .. . has been The question presented had been before the allowed to develop and to expand unhindered Court twice (and arguably five times) and there by federal legislative action." The Court has was no split in the Circuits to be resolved. And thus been concerned "about the confusion and while the St. Louis Cardinals' decision to trade the retroactivity problems that inevitably star outfielder Curt Flood to the Philadelphia would result with a judicial overturning of Phillies was no doubt important - even tragic Federal Baseball." This is yet another reason - to some, it was not a matter affecting na­ to prefer a legislative solution, which, "by its tional security or world peace. Indeed, all Jus­ nature, is only prospective in operation."J07 tice Blackmun could say in describing the de­ (3) Although the rule of Federal Base­ cision to hear the case was that the Court ball is "an anomaly" and "an aberration," it is "granted certiorari in order to look once again "an established one ... that has been with us at this troublesome and unusual situation."I04 now for haifa century." To reject it now, more- 106 JOURNAL 1998, VOL. 2

over, would require "withdrawing from the con­ currence, even though he expressly agreed with clusion as to congressional intent made in Justice Douglas's dissent on two points: that Toolson." The question was no longer whether Toolson was probably in error, and that the Federal Baseball was right or wrong, but who Court's reliance on "congressional inaction is should overrule it: "If there is any inconsis­ not a solid base" for refusing to correct a mis­ tency or illogic in all this, it is an inconsistency take. Nonetheless, he joined the majority's opin­ and illogic of long standing that is to be rem­ ion and result, but left these marching orders edied by the Congress and not by this Court."108 for the House and Senate members across the Justice Blackmun concluded his opinion street: by adopting and quoting in full the last sen­ tence of Toolson, and then adding these final [T]he least undesirable course now is words: to let the matter rest with Congress; it is time the Congress acted to solve And what the Court said in Federal the problem." 2 Baseball in 1922 and what it said in Toolson in 1953, we say again here in Since Flood, there has been 110 serious 1972; the remedy, if any is indicated, attempt to have the Court consider the ques­ is for congressional, and not judicial, tion for a fourth time. The various opinions in action. 109 Flood demonstrate, however, that the question for the Court by 1972 was no longer what Fed­ Justice Douglas's dissent was simply an eral Baseball actually meant, but how the mis­ updated version of Judge Frank's opinion in take that had been made should be corrected. Gardella. The principal difference was that his The "least undesirable" solution decreed was first sentence converted Federal Baseball congressional action. Yet, despite the virtual from a "zombie" to "a derelict in the stream injunction from Chief Justice Burger in his of the law." Otherwise, he echoed Judge Frank Flood concurrence, Congress has failed to re­ by pointing out that Holmes' "narrow, paro­ move the exemption for more than twenty-five chial view of commerce" had been repudiated years. by "the modem decisions" of the Court.I IO The So who is ultimately responsible for this interesting question was how Douglas would "troublesome and unusual situation"? There is handle his previous vote for the opinion in no doubt where the Radovich Court laid the Toolson . His answer came in a disarming foot­ blame: "But Federal Baseball held the busi­ note: ness of baseball outside the scope of the Act. No other business . . . has such an adjudica­ While I joined the Court's opinion in tion ."11 3 Nor is there doubt about Justice Toolson . . , I have lived to regret it; Blackmun's view: "It is an aberration that has and I would now correct what I be­ been with us now for half a century."114 Nor is lieve to be its fundamental error. III Justice Douglas hard to read: "In 1922 the Court had a narrow, parochial view of commerce," he Justice Brennanjoined Douglas in this dissent, wrote, while citing the "regret[ful)" decision in even though Brennan had dissented in Toolson only once, in a footnote. 11 5 For these Radovich on the ground that the rule of Justices, the problem, in all its aberrant glory, Toolson should apply not only to baseball but begins and ends with Holmes. to football as well. In his case, however, no To determine whether this historical judg­ explanation or expression of regret was pro­ ment is correct, it is time to return to our origi­ vided in Flood. nal question: could the antitrust laws have been Chief Justice Burger offered a brief con- applied to baseball in 1949 or thereafter with- STEALING HOLMES 107 out overruling Federal Baseball? By tracing the ity of the Supreme Court of the United States exemption all the way through to the decision to grasp the practical meaning" of organized in Flood, we have now accumulated the evi­ baseball's structure. In contrast, he argues, dence necessary to answer that question. For "[t]hose closest to baseball, and most directly the answer lies in understanding Federal Base­ affected by its decisions, knew full well that it ball the way Holmes understood it, and that is was a business, and a buyer's monopoly at something that no judge who has discussed the that."! 17 issue has managed to do no judge, that is, Among the statements for which Holmes except one. is revered, rather than ridiculed, is this: "It is most idle to take a man apart from the circum­ V. Wrong on the Facts stances which, in fact, were his."118 We will therefore attempt to place Holmes and Fed­ One thing that the progression from eral Baseball in context as a means of address­ Toolson to Flood makes plain is that Holmes' ing this critique. opinion has been battered and mocked much more for the alternative argument about "trade or commerce" than for the conclusion that the A. Primitive Baseball interstate aspects of the business were merely In evaluating the place of professional "incidental" to the game. This is because such baseball in the American culture when Federal a conclusion, even if wrong when made, is at Baseball was decided, two points should be least not immutable; it can change when the considered. The first, and less important, is that facts do. The presence of radio and television the game at that time was still quite primitive in the later cases, therefore, made it largely in many respects in comparison even to 1949. unnecessary to dwell on the first argument. When we hear the stories of the (now) famous But Holmes has not gone unscathed on players from that era, we tend to envision them that point by any means. Some have argued that playing in stadiums and circumstances essen­ Holmes was not only "sophistic" in his view tially as they exist now - the uniforms are a of trade or commerce, but "remarkably myo­ little baggier, perhaps, and we see things in black pic, almost willfuUy ignorant of the nature of' and white, rather than in color, but that's about I16 professional baseball. As Professor White it. Yet there were fundamental differences af­ asks rhetorically in his book, Creating the fecting everything from the rules (the spitball National Pastime, "How could anyone fairly was not banned until 1921), to the equipment characterize baseball games as 'purely state' (today, World Series announcers point out that or 'local' affairs?" There is the sense that the American and National Leagues have dif­ Holmes has let us down by failing to perceive ferent strike zones; in the teens, they used dif­ the cultural importance that baseball had, or ferent baseballsI19). Indeed, some of the most clearly would have, in America. In attempting basic trappings of the baseball "experience" to explain this myopia, Professor White finds were simply not yet born. in the decision of the D.C. Circuit in Federal Take the high-collared uniforms, for ex­ Baseball "the persistent belief that baseball ample. Not only did they lack the player's was not just a 'business,' but a 'game. '" names, they did not even have numbers. Nor were the starting lineups announced, because It was easy to think of buying a prod­ there were no sound systems. (John McGraw's uct as part of one's "business." It was remarks at his twenty-fifth anniversary cel­ much harder to think of watching a ebration on July 19, 1927, were not amplified, baseball game in the same manner. because the Polo Grounds did not have a Professor White finds "astonishing [the] inabil- speaker system until 1930. 12°) Accordingly, you 108 JOURNAL 1998, VOL. 2 could not tell the players even with a scorecard. sal. When the Federal League was wooing As for music, playing the Star-Spangled Ban­ Walter Johnson, he was a 36-game winner. ner was not traditional, but a recent innovation Smokey Joe Wood was 34-5 in 1912, for a win­ by one team, the Boston Red Sox, introduced ning percentage of .872. 129 The lowest earned in 1918 by its show-producer owner, Harry run average in history was recorded in 1914 Frazee. The famous tune, "Oh, Take Me Out by Dutch Leonard (1.0 I). To underscore the to The Ball Game," had been written in 1908, dominance of pitching in the teens, compare but the composer had never even seen a ball the 1915 rookie season statistics of Boston's game. 121 Babe Ruth with those of the Dodgers' Or take something as fundamental as the Fernando Valenzuela in 1981. Valenzuela's name of the team. In that era, the team name record was 13-7, with a 2.48 earned run aver­ was as variable as the whim of a local sports­ age. The Babe was better on both counts (18- writer. At the beginning of the teens, the Red 6 and 2.44), and batted .315 for good mea­ Sox were called the Pilgrims. 122 When four of sure. The result: Valenzuela won the Cy Young the Dodgers got married in the same year the Award and was named Rookie of the Year, while team became the "Bridegrooms." The Indians Ruth was not even carried on Boston's 1915 were known for several years as the Cleveland World Series roster. Given the dominance of "Naps" in honor oftheir player manager, Napo­ the pitchers, it is no surprise that the longest leon Lajoie. 123 When the Indians won the 1920 game in baseball history was played on May I, World Series, they defeated the Brooklyn "Rob­ 1920, - a less than riveting, 26-inning, I-I ins," then named for their own manager, Wilbert draw that was called on account of darkness. 130 Robinson. (Brooklyn's all-time low on the name Boring or not, there is no question that parade came in 1915 when the team was called professional baseball was poorly positioned the "Tip-Tops."124 Honestly.) to withstand the distraction and financial hard­ Of greater importance than the primitive ships inflicted by World War 1. In 1918, the trappings, however, is the second point: the owners agreed in July to shorten the season; health of professional baseball in 1919 was not the World Series was completed by September good. The teens had been baseball's most lack­ 11,131 and the owners promptly cut all players luster decade. Attendance had been dropping from their rosters to save on the balance of since the close pennant races of 1908 and 1909. salaries due (agreeing, of course, not to sign By 1915, one of baseball's early publications, each others' free agents). In 1919, the owners the Reach Guide, was speculating about the agreed again to shorten the season, delay reasons for professional baseball's general spring training, and trim each team's roster to malaise and the fans' waning interest. Among 21 players in order to save more money. 132 At­ the possible reasons given were "excessive tendance nosed up slightly in 1919, but the im­ player salaries" and "movies."125 provement was grudging and short-lived. One of the reasons not given was that the At that point, as the Federal Baseball ap­ game may have been getting a little boring. peal worked its way through the appeals court Baseball historian Bill James notes that the in 1920 and the Supreme Court in 1921, profes­ pitchers gained "control" beginning around sional baseball was traumatized by two addi­ 1913. 126 The team batting averages for the de­ tional events: The Black Sox scandal and the cade hovered around .250 and the most home death of Ray Chapman. runs hit in a year from 1909 to 1918 were twelve. 127 In fact, When Boston pitcher Babe Ruth hit 29 home runs in 1919, he broke the 1. The Black Sox Scandal American League record by thirteen.128 The pitchers' statistics were correspondingly colos- In 1919, players on the Chicago White Sox STEALING HOLMES 109 threw the World Series. The story of the scan­ played all-star baseball for the entire Series.138 dal has been chronicled most notably in Eliot That was enough to warrant expulsion in the Asinof's famous "Eight Men OUt."IJJ The mas­ view of Commissioner Landis, however, who termind was a New York gambler named correctly perceived the danger that this scan­ Arnold Rothstein. Eight White Sox players, dal presented for baseball. From his position who included Shoeless Joe Jackson, pitcher as owner, Comiskey decided that the best man­ Eddie Cicotte, and third baseman Buck agement of the problem would be for the play­ Weaver, were subsequently indicted and tried, ers to be banned, but acquitted of the criminal but all were acquitted. In the meantime, how­ charges. 1J9 During the trial, therefore, ever, former federal judge Kenesaw Mountain Jackson's written confession disappeared. A Landis was appointed baseball's first Commis­ few years later, when Jackson brought a civil sioner, and he banned all eight of the indicted suit against the White Sox, the confession players from organized baseball for life. IJ4 conveniently resurfaced in Comiskey's The story from the players' perspective lawyer's briefcase. was more pathetic than villainous. They were The timing of the scandal could not have manipulated by the gamblers during the scan­ been worse, as baseball struggled to right itself dal and manipulated by White Sox owner after the war. This conduct rubbed the public's Charles Comiskey afterward. Only two of the nose in organized baseball's worst-kept secret: players actually received any of the promised that it was badly corrupted by gambling. Gam­ bribe money - Jackson and Cicotte. IJ5 Cicotte blers had been present since the first league was thirty-five in 1919, but arguably the best had been established in the 1870s, and a major left-handed pitcher in baseball. He had none­ scandal involving the Louisville Club had been theless suffered the penury of his owner for exposed in 1876. Since then gambling had been years. In addition to paying him half of what unmentioned, but largely tolerated. In 1917 and other pitchers made, Comiskey had him pulled 1918, for example, first baseman Hal Chase from the starting rotation two years earlier af­ had repeatedly been caught soliciting others ter winning twenty-nine games, ostensibly to to throw games, but repeatedly let off.140 "rest" him for the World Series. In fact, how­ Asinoffnotes that "[b]y 1919, gamblers openly ever, Cicotte had an incentive clause that would boasted that they could control ball games as have paid him $10,000 for winning thirty readily as they controlled horse races."141 Pub­ games.136 By 1919, Cicotte knew he was too licity such as the Black Sox scandal tends to old to recoup the money he had lost in salary. injure an enterprise seeking to become the When Comiskey cut salaries in connection cultural cornerstone of American life. with the war-shortened season, Cicotte and And consider the timing in connection several other players agreed to the scam.137 with Federal Baseball. The rumors that the In recent years, there have been revision­ World Series had been thrown persisted ist attempts to clear Shoeless Joe Jackson of through the 1920 season, casting a cloud over the charges. One such attempt is found in the a close pennant race between the White Sox, movie, "Field of Dreams," in which the ghost of Indians, and Yankees. The indictments came the deeply Southern and deeply uneducated down dramatically in September of 1920, just as Shoe less Joe is played with perfect diction by the D.C. Circuit was preparing its opinion in New Yorker, Ray Liotta. All of these efforts Federal Baseball, which was issued in De­ are complicated by Joe's written confession cember. During the 1921 season, the last full at the time. Buck Weaver, on the other hand, season before the Supreme Court ruled in Fed­ protested his innocence for decades, and the eral Baseball, baseball news was overshadowed evidence supports his claim that he only lis­ as the Black Sox trial dragged on in June, July, tened to the plan without assent and thereafter and August. 142 Thus, even if the members of 110 JOURNAL 1998, VOL. 2

Ted Williams and Babe Ruth lIeftto right), two of baseball's greatest hitters, met for the first time in 1943 at Fenway Park. Many of baseball's most colorful and be­ loved characters, including Casey Stengel (opposite page, upper right) and Mickey Mantle (opposite page, lower right, run­ ning hamel. were called to testify before Congress on the antitrust exemption.

the unanimous Supreme Court in Federal Base­ the left ear, and Cleveland's rising star was dead ball were paying attention to baseball at this several hours later. time, they would doubtlessly have shared the The death of a young ballplayer would be assessment of this period advanced by Stephen devastating under any circumstances, but the Jay Gould: circumstances in this case- including the per­ sonalities of the two protagonists - height­ The game had been in trouble for sev­ ened the tragedy. In 1920, Ray Chapman was a eral years already. Attendance was in golden boy, well on his way to owning the town decline and rumors of fixing had of Cleveland. Young and classically good look­ caused injury before. The Black Sox ing, he was reputed to be the fastest man in Scandal seemed destined to ruin baseball. He was also an outstanding fielder baseball as a professional spo11 en­ who had been made the protege of Cleveland's tirely.143 already legendary player-manager, Tris Speaker. By all reports Ray was unerringly affable and charming. As the 1920 season got underway, 2. The Pitch That Killed144 moreover, he had just married the beautiful Only one major leaguer in the history of daughter of one of Cleveland's richest men. baseball has been killed by a pitch. His name The man who threw the pitch, Carl Mays, was Ray Chapman, and he played shortstop for was a different story. Mays had come to Bos­ the Cleveland Indians. On August 16, 1920, ton as a pitcher along with Babe Ruth in 1914 Cleveland played in New York during a crucial (they rode the same train together from Balti­ series in a tight pennant race. The Yankees' best more).145 By 1919, Mays had established him­ pitcher, Carl Mays, beaned Chapman behind self as one of the premier right-handed pitch- STEALING HOLMES 111 ers in the American League. He had an under­ handed delivery, snapping the ball from near his shoe tops at the release. Unlike Chapman, however, Mays was not considered charming. Although he apparently did not drink, smoke, or curse, he was such an unrelenting jerk that he was thoroughly disliked, even by his own team. His universal lack of popularity was so obvious that Mays would discuss it in inter­ views. Nor did Mays' conduct make his reputa­ tion a mystery. When Mays decided in mid- 1919 that the floundering Red Sox were not pro­ viding enough run support, he walked out on his team and his contract. Despite the suppos­ edly impregnable reserve clause, the ambitious owners of the Yankees quickly offered him an­ other contTact, which touched off a dispute so bitter that some owners threatened to dissolve the After several lawsuits, countersuits, year by Babe Ruth. and injunctions, the matter was finally settled Another reason Mays was unpopular was on the eve ofthe 1920 season. As a result, Mays that he beaned people. Despite his outstand­ stayed in New York, where he was rejoined that ing record, he was virtually always at the top 112 JOURNAL 1998, VOL. 2 of the list for hit batsmen.'46 When Chapman baseball's historical summit. Postwar America died, the Yankees' owner noted that " [i]t is un­ felt good about itself and even better about fortunate that it should have been Mays who baseball. The age of DiMaggio, Williams, and pitched the ball, too, because of the tremen­ Musial was in full flower. The American dous publicity he has already had."'47 As for League race in 1948 had been riveting, as Lou the pitch that hit Ray Chapman, the case Boudreau and Cleveland's incomparable pitch­ against Mays is necessarily circumstantial, but ing nan-owly edged the storied Yankees and the impressive. First, he was a low-ball pitcher, ever-tragic Red Sox. Those three teams alone who seemed to go high only when someone's drew more fans in 1948 than had the entire head was in the way. Second, he was fiercely, American League in 1920 .153 The following and justly, proud of his control (continually "Summer of '49"1 54 would become the stuff making the point to interviewers). Third, he of baseball legend, with the Yankees taking the was usually among the league leaders in few­ pennant from the Red Sox on the final day of est walks. '4 8 In fact, he still holds the record the season. That summer produced perhaps the for pitching the most innings (26) in a World finest moment for baseball's finest symbol, Series without allowing a walk. As if to en­ Joe DiMaggio. Due to a second, career-threat­ sure his place in history, Mays offered this as­ ening foot operation, he played for the first sessment of what happened: " It was the time that season in late June, in a crucial se­ umpire's fault."'49 ries against the Red Sox in Boston. Leading Chapman's death, followed one month the Yankees to a three-game sweep, Joe bat­ later by the Black Sox indictments, provided ted .455 (5 of II), with four home runs and grisly confirmation of the worst image of pro­ nine RBIs. As he rounded third on one fessional baseball and its participants. Re­ homenm, Casey Stengel came out of the dug­ garded as lower class ruffians, the players of out and bowed in the "we are not worthy" sa­ '55 the teens have been described by one of the lute. America agreed. That Yankees team preeminent baseball historians in crisp terms: commenced a run of five consecutive world " Shysters, con men, carpet baggers, drunks and championships that may never be duplicated. outright thieves."'50 Today, individual names do To take the pennant back in 1954, the Indians provide "tinder for recaptured thrills," in the had to win a record III games; the Yankees won a mere 103 Y6 words of Justice Blackmun, but the image of By 1949, baseball had not only a new gen­ the entire enterprise as shabby and probably eration of players, but a new generation of fans. corrupt would die hard, especially for the older That generation, moreover, followed the game generation. When Yogi Berra took up the game in a fundamentally different way than its pre­ decades later, his parents were ashamed. '51 decessors - by listening to the radio. It is dif­ Despite the exciting pennant race of 1920 ficult to overestimate the role of broadcast­ (Cleveland replaced Chapman with a minor ing in the rise of baseball (as well as other league shortstop named Joe Sewell, who is sports) in the American cultural conscious­ now in the Hall of Fame, and came back to win ness. In David Halberstam's words, " Radio the pennant and the World Series), attendance made the games and the players seem vastly dropped significantly in 1921.152 Professional more important, mythic even." Radio cover­ baseball was at its nadir. age began to define the game in the 1940s, but was still not universal. In 1946, New York sportscasters made their coverage comprehen­ B. Postwar Bliss-and Broadcasting sive, providing the first live broadcasts of away But tum now to February of 1949, when games.157 For baseball and radio, all the stars Gardella was decided, and we approach were in alignment: STEALING HOLMES 113

[R]adio as a prime instrument of stand that it is not the same for American audi­ sports communication, and Mel Allen ences to see a swing and a miss without hear­ as one of its foremost practitioners, ing " swing and a miss." Strictly speaking, ascended at the very moment that Joe broadcasting may not be part of the game, but DiMaggio did. 158 it is a principal reason why the game is part of us. Holmes and his Brethren did not have this By the end of the decade, television was perspective. As for broadcasting, although the not far behind. The first World Series games first experimental transmission fom a ballpark were televised in only five cities in 1947, occurred in August of 1921, the "incalculably when Gillette paid $175,000 for the rights. positive" impact of regular radio broadcasts 162 Fans did not have to own a T.V to see the was still more than a decade away. Most teams games; city taverns bought them and aggres­ did not broadcast even home games until the sively promoted televised sports as part of early 1930s, and "[a]s late as 1939 none of the their postwar strategy to resist the advent of New York clubs broadcast any of their (1) suburbia and (2) canned beer. By 1949, games."J 6J As for iconography, far from boast­ comedian Fred Allen asserted that the only ing an all-American hero like Joe DiMaggio, New Yorkers who had not watched television the era of Federal Baseball was symbolized by were children too young to frequent saloons. 159 the peerless and ruthless Tyrus R. Cobb. While For the 1949 Series, Gillette paid $800,000 he truly did dominate (in 1919, he won the bat­ for the television rights, and an estimated ten ting title for the eleventh time in twelve years), million watched. 160 his penchant for fighting, cheating, and beat­ In deciding whether Holmes failed to grasp ing up fans (he once kicked a hotel chamber­ the true (or at least imminent) nature ofprofes­ maid down a flight of stairs) left him generally sional baseball, we must keep in mind that despised. l64 At the end of one season, when broadcasting is not just the obvious reason Cobb was locked in a tight race for the batting that professional baseball games are today "in­ Cro\VTI with Napoleon Lajoie, an opposing man­ terstate." It is the reason that we now perceive ager pulled his infield back so that Lajoie could baseball and other professional sports as a ubiq­ "beat out" six bunts for infield hits. Cobb, be­ uitous, permeating cultural feature of everyday ing Cobb, won the title anyway. 165 life. Only with broadcasting can there be a col­ For the Justices who decided Federal lective American experience - from sea to shin­ Baseball, therefore, the game of baseball had ing sea - based on a single moment of a single a secure place in the culture as a means of lo­ game. Because of broadcasting, Bobby cal recreation - there were hundreds of ama­ Thompson's home run to win the pennant for teur leagues, virtually all contained within their the Giants in 1951 truly was a "Shot Heard home state l66 - but the enterprise known as 'Round The World"1 61 - or at least around organized baseball was more than arguably America. By the late 1940s, therefore, we can corrupt, declining, and possibly near extinc­ say that major league baseball had genuinely tion. Their mental image of baseball, if they become an experience that was not only seen had one, was likely to be the game in which Ty but heard. It is no accident that every movie Cobb, dusted off by a Carl Mays pitch aimed made about baseball, from 1949's "It Happens at his head, retaliated by pushing a bunt toward Every Spring" to the dopey (but fun) "Major first base and then spiking the covering Mays League," shows scenes of live baseball action so badly that he could not walk. 167 The Justices from the perspective of the play-by-play an­ may have been grateful that such a spectacle nouncer in the booth. The filmmakers under- had been witnessed only by a local audience. 114 JOURNAL 1998, VOL. 2

c. The "Business" of Baseball must be arranged between clubs from differ­ ent cities and States,"170 thereby granting the Those who are disappointed or embar­ plaintiff its point that the quality of the games rassed by Holmes' conclusion that the inter­ was directly affected by the out-of-state "iden­ state aspects of organized baseball at the time tity" of the opponent. of Federal Baseball were "incidental" do not But the fact remains that, when the game grasp the simplicity of the analysis of both with the out-of-state rival was actually played Holmes and the D.C. Circuit Court of Appeals. (i.e., produced and consumed), business was "Trade" and "commerce" were terms of art at being transacted on an interstate basis in only that time. To determine whether the defendant the most indirect and subtle way. When the baseball clubs were engaged in interstate trade Dodgers played the Redlegs in Cincinnati, for or commerce, the first step for the Court of example, the fans in Brooklyn could care Appeals was to determine just what it was that deeply, but they could not partake. The most the defendants were selling. This is what con­ they could do was to read of the results after temporary antitrust lawyers would call defin­ the fact in newspaper or telegraph reports. To ing the product market. The answer for both participate in any meaningful way in the "es­ courts was this: they were selling baseball sential" part of the business (the game), you games, or as Holmes put it "giving exhibitions had to be in Ohio. The only interstate aspect of base ball."'68 If the next question is whether of the "exhibition" itself was the implicit ef­ the game, from the first pitch to the last out, fect it would have on the importance of the was an interstate event or an intrastate event, games played in other states. In other words, it is hard to argue against the view that the game what happened in Ohio in May could make the was "local in its beginning and in its end."'69 game played in New York in September vastly The game - the relevant product - was pro­ more important and exciting. (As current fans duced and consumed in its entirety in one are painfully aware, this is a point that seems place, at one time, in one state. entirely lost on players today.) But, at least If we recognize how firmly this analysis until broadcasting was widely available, the focused on the actual experience of the fan "con­ September game in New York would still be a suming" the exhibition as it was exhibited, we "local" exhibition, consumed only by those will understand why so many have wrongly who were there. If one accepts any analysis suggested that Holmes' opinion ignored the that attempts to distinguish between the inci­ nature of this "business." For the Federal Base­ dental and the essential, the amount of genu­ ball opinion described the business inpreciseiy ine interstate commercial exchange that took the terms Holmes is claimed to have been un­ place in a baseball park in Holmes' day must able to grasp. He referred to organized baseball be below the line. as a "business" on five separate occasions in Accordingly, if your task in the spring of two and one-half pages. He noted that "the 1919 (as, say, trial counsel for the plaintiff in scheme requires constant traveling on the part Federal Basebalf) was to produce evidence of the clubs, which is provided for, controlled that the interstate aspects of producing this lo­ and disciplined by the [leagues]." He further cal exhibition were more than incidental, you noted that the traveling was interstate: "[T]hese were in trouble. In the 1970s Justice Douglas clubs ... play against one another in public ex­ would point out in Flood v. Kuhn that hibitions for money, one or another club cross­ "[b ]aseball is today big business that is pack­ ing a state line in order to make the meeting aged with beer, broadcasting and with other possible." Indeed, he even acknowledged that industries."171 But we know that broadcasting "to attain for these exhibitions the great popu­ was not part of the business when Federal larity that they have achieved, competitions Baseball was decided, and beer was illegal STEALING HOLMES 115

(ouch). (The Eighteenth Amendment was rati­ subject to any statutory imposition Congress fied on January 29, 1919, and the Volstead Act cares to impose.175 But the "house-that-jack­ was held constitutional in January 1920.) Could built" reasoning underlying that view, while you make it seem important to a court that the perhaps inevitable today with the revolution in balls, bats, and uniforms of the visiting team communication technology, has no more claim may have crossed a state line? (Not really.) If to intellectual rigor than the incidental effects the visiting team's equipment had been hi­ analysis, which at least was designed to pre­ jacked, would the game have been canceled? serve some distinction between interstate and (Doubtful.) local businesses. Thus, when Professor White The lawyers for the Federal Baseball finally asks in frustration how "anyone [could] plaintiffs seem to have understood the chal­ conclude, whatever the legal nomenclature, that lenge before them. In their brieftb the Supreme major league baseball teams were not engaged Court, therefore, they strenuously argued that in interstate commerce,"176 we see that he has the interstate aspects of baseball were not sim­ lost sight of the controlling issue. It was not ply important, but the heart of the enterprise. whether baseball was a business, or was a There was even a spiritual aspect: "The per­ monopsony (a "buyers' monopoly"), but sonality, so to speak, of each club in a league is whether that business should be characterized actually projected over state lines and becomes as intrastate rather than interstate. The plain­ mingled with that of clubs in all the other tiff in Federal Baseball knew that that was the States."172 The main activity of each club, ac­ issue, and argued it under the prevailing stan­ cording to the plaintiff, was not playing ball, dard. There was no request that the Court adopt but traveling. Thus, although the plaintiff a different analysis, much less overrule bind­ grudgingly admitted that each club had "a 10- ing Supreme Court precedent. cal legal habitat . . . it[was] primarily an ambu­ This is now, but that was then. Holmes latory organization."173 My favorite exposition was analyzing a record made in 1919 about the of this theme is as follows: nature of the business in 1914 and 1915. The broadcasting, front offices, and minor league [T]hroughout the playing season the structures of today did not exist. The issue in ball teams, their attendants and para­ Federal Baseball, everyone agreed, was phernalia, are in constant revolution whether this "popular" business was interstate around a pre-established circuit. or local. Everyone also agreed that the ques­ Their movement is only interrupted tion turned on the difference between inciden­ to the extent of p ermitting exhibi­ tal and non-incidental effects. That was pre­ tions of baseball to be given in the cisely the way in which Learned Hand, with the various cities.174 benefit of twenty-seven years of additional antitrust law, would frame the issue in 1949. In 1922, the answer was clear. Drat those interruptions. Holmes and his Brethren were unlikely to be moved by an ar­ VI. Wrong on the Law gument that made the game itself"incidental." A. Whose Alternative Argument? I suspect that what bothers most modem readers of Federal Baseball is Holmes' failure If Courts had construed the incidental ef­ to reject the incidental effects analysis alto­ fects analysis of Federal Baseball as the sole gether, overrule Hooper v. California sua ground of decision, both the opinion and its sponte, and declare (as the current Court might) holding would long ago have faded away. that any interstate aspect of any business, no Whether Holmes was right or wrong is imma­ matter how incidental, renders that business terial, the next court would have said, for the 116 JOURNAL 1998, VOl. 2 facts have changed, and under Federal Base­ result in Hart, coming only one year after ball that means the result must change as well. Federal Baseball. One is that the result turns Let us tum, then, to the alternative argument purely on the difference between the con­ on "trade or commerce," which has shown such cepts of "jurisdiction" and "cause of action." a sheer face to those who would attempt to Jurisdiction considers only whether the court help Holmes climb from the reputational hole has power to act on the controversy; cause dug by his baseball opinion. Very few have even of action considers whether the plaintiff has argued that finding baseball subject to the an­ a right to actual relief on the stated claim. l78 titrust laws today could be made consistent Recall that Federal Baseball came to the with Federal Baseball. Justice Burton tried Court after a full trial and verdict. In Hart, in his dissent in Toalson , but ultimately had to however, as in most all of the cases we have (I) mischaracterize Holmes' opinion and (2) discussed, the Court dismissed the complaint still cite the cases said to "repudiate" Holmes' ab initio on the ground that the antitrust laws view of interstate commerce. The only other confer no jurisdiction over baseball. Was person to make the effort, the great Learned Holmes saying in Hart that the plaintiff had Hand, seemed to leave his bat on his shoulder, a right to claim that the antitrust laws gov­ simply blinking as the hard issue went by. erned the dispute, even though the claim The beginning of wisdom here comes in would later have to be dismissed under Fed­ considering the other Holmes decision men­ eral Baseball as a matter of law? Or was he tioned above in the discussion of Us. v. leaving open the possibility that the plain­ Shubert. The case was called Hart v. B.F tiff in Hart could somehow prevail on the Keith Vaudeville Exchange. It involved an in­ merits? The first option seems overly for­ terstate vaudeville circuit and was decided in malistic, especially for Holmes. The second 1923, in the next Term after Federal Base­ seems flatly inconsistent with the alterna­ ball. On the facts, there was no obvious dis­ tive argument in Federal Baseball. tinction from Federal Baseball, just a dispute For Holmes, the distinction between ju­ over whether the "transportation of large quan­ risdiction and cause of action was real, but not tities of scenery, costumes and animals" was mindlessly formal. He had made the point ten "merely incidental" to the performance. The years earlier in The Fair v. Kohler Die & Spe­ District Court had dismissed the complaint on cialty CO. l79 The Fair was brought under the its face. Noting that "[t]he jurisdiction of the federal patent law, and Holmes defined juris­ District Court is the only matter to be consid­ diction as the "authority to decide the case ei­ ered on this appeal," Holmes reversed for a ther way." He also noted two ways in which a unanimous court. The issue was not whether complaint could be dismissed on a motion for the plaintiff ultimately would prevail on his lack of jurisdiction: (I) "if it should appear cause of action, but whether the antitrust laws that the plaintiff was not really relying on the applied at all: patent law," or (2) "if the claim of right were frivolous." In the latter instance, "the jurisdic­ tion would not be denied, except, possibly, in The bill was brought before the deci­ form." In other words, if it were clear that the sion of the Base Ball Club Case, and claim raised was not "a substantial claim un­ it may be that what in general is inci­ der an act of Congress," a federal court would dental in some instances may rise to not be required to engage in the charade oftak­ a magnitude that requires that it be ing jurisdiction where later dismissal was in­ considered independently.l J7 evitable. In The Fair, jurisdiction was proper because the claim advanced was "made in good There are several ways to interpret the faith and [was] not frivolous."l 8o STEALING HOLMES 117

merce as a matter of Jaw. Hart means that a plaintiff satisfying the"incidental" effects test potentially could win on the merits. But how can that result be squared with the alternative argument in Federal Baseball? Re­ call that Justice Minton began his dissent in International Boxing with these words:

To make a case under the Sherman Act, two things among others are es­ sential : (I) there must be trade or com­ merce; (2) such trade or commerce must be among the States. 183

No one on the Supreme Court has ever disputed this reading of Federal Baseball, which went on to be the express (and unchallenged) inter­ pretation of Justice Blackmun in Flood v. Kuhn. 184 If this reading is right, baseball's "per­ In finding antitrust jurisdiction over the sonal effort" will always be personal effort; vaudeville circuit in Hart, therefore, Holmes thus, it will never be trade or commerce. Was adhered to the distinction set forth in The Fair. Justice Minton just wrong? He agreed that the holding in Hart did not re­ He was, actually. He and many others mis­ pudiate those cases dismissing claims for want read Federal Baseball in a small way with large ofjurisdiction that were "absolutely devoid of consequences. Holmes did address a two-part merit."18 1 That was not the case in Hart, how­ alternative argument in Federal Baseball, but ever: it was an alternative argument that worked in

It is enough that we are not prepared to say that nothing can be extracted from this bill that falls under the act of Congress, or at least that the claim is not wholly frivolous. 182

Thus, Hart cannot be read to mean that the pJaintiffwould inevitably lose anyway because the local exhibition - consisting exclusively of "personal effort" - was not trade or com-

Ray Chapman (above I was the rising star of the Cleveland Indians in 1920 when he was killed by a pitch that struck him behind the left ear. The Yankees' best pitcher, the universally disliked Carl Mays (rightl, threw the ball, the only lethal pitch in the history of major league baseball. 118 JOURNAL 1998, VOL. 2 favor of the plaintiff, not the defendant; it gave to get to the point as quickly as he could. It is the plaintiff two chances to win, not to lose. hard to imagine that he would order his argu­ We can see the alternative argument Holmes ments in this way: "Let's see, one ground of was responding to by looking at the briefs be­ decision means that baseball by definition can fore the Supreme Court. The defendants in Fed­ never, ever be subject to the Sherman Law; the eral Baseball made the argument that personal other is a fact-intensive analysis requiring evi­ effort was not commerce, and the plaintiffhad dence of interstate aspects of the business and responded that the claim was irrelevant. a careful balancing to determine whether those Whether or not the personal effort involved in aspects are incidental or not. I guess I'll lead baseball was "an article of commerce," plain­ with the incidental balancing test." tiff argued, "interstate commerce may be cre­ Holmes was not wasting our time. The ated by the mere act of a person in allowing plaintiff could prevail by showing that the in­ himself to be transported from one State to an­ terstate aspects of the baseball business were other, without any personal effort."185 Holmes more than incidental. If so, the alternative ar­ was expressing his opinion on that argument gument rejected in Federal Baseball would in the second half of his dense paragraph in neither hinder the plainti ff nor save the defen­ Federal Baseball. dant. In fact, if the plaintiff did not raise the In doing so, Holmes recognized that the point, there is no reason why a COUlt who read plaintiff's argument had two parts: in addition Federal Baseball accurately would have to to arguing that the interstate "incidents" were address the alternative argument - at all. sufficient to stamp the whole business as inter­ state, plaintiff argued that crossing a state line B. "Just The Smartest Guy to engage in an activity that was not otherwise Who Ever Lived" trade or commerce was enough to "create" in­ terstate commerce. Wrong, said Holmes: "That In his justly famous lecture series on the which in its consummation is not commerce law of evidence, the late Irving Younger dis­ does not become commerce among the States cussed a session of the Practicing Law Insti­ because the transportation that we have men­ tute concerned with restating the law on Bur­ tioned takes place. "186 All this exchange estab­ dens of Proof and Presumptions. The issue had lishes is that the plaintiff had made its own for­ been studied for some time. When a proposal malistic argument - that crossing a state line was made to re-submit the issue to committee could change something that was not commerce for more fruitless debate, committee member at all into interstate commerce - and Holmes Learned Hand rose to oppose the effort. Paint­ rejected it. It is only because others have mis­ ing a verbal picture of the moment as only he read this passage as a pronouncement that could, Younger described the great judge's baseball could never be subject to the Sherman majestic ascent to address the room. "He Act that the subsequent mistakes of Toalson looked like God incarnate; he spoke like God and Flood v. Kuhn have loomed so large. incarnate - just the smartest guy who ever Understanding the alternative argument in lived _".187 Federal Baseball in this way explains a lot. Is it possible that Learned Hand saw what For one thing, it explains the result in favor of so many others missed? Ifhe read Holmes cor­ the vaudeville plaintiffs in Hart. For another, rectly, he could easily have decided Gardella it answers an obvious question that no judge exactly as he did - seeming to ignore the "al­ has ever posed, to wit, if baseball could never ternative" argument, and recognizing that the be trade or commerce, why did Holmes place advent of radio and television broadcasting had that argument second? We know that he was a fundamentally changed the calculus regarding practical guy who wrote standing up and tried the "incidental" interstate aspects of baseball. STEALING HOLMES 119

There are several reasons to think he had artists or actors and the costumes and parapher­ it right. First, the conventional wisdom that read nali a used by them is but incidental ofthe main Holmes' opinion as an alternative argument in purpose to entertain or act upon the vaudeville favor of the defendant was not yet firmly in stage."1 91The remaining members of the panel place. In fact, it was Gardella itself that occa­ were Charles Hough and Learned Hand . sioned a spate of commentary popularizing the To Learned Hand, therefore, the analysis fallacy, which continued to grow as more deci­ in Gardella was exceptionally straight-for­ sions applying the antitrust laws to professional ward. The controlling issue was whether the sports were handed down during the 1950s. interstate aspects of the business were inci­ With no clear consensus embracing the wrong dental. The facts had changed radically since interpretation, it is far less surprising that Hand 1922, principally due to the role of broadcast­ did not address what was then only the second ing. When he said "the players are the actors, ground for his concurring panel-member, the radio listeners and the television specta­ Jerome Frank. Second, Hand and Holmes knew tors are the audience,"'92 he was speaking in each other well, communicated during the pe­ terms equally applicable to Hart as to Fed­ riod in which Federal Baseball came down, eral Baseball. He was simply holding that the and conceivably could have discussed the con­ same trial that took place in Hart should take trolling issues. Hand had encountered Holmes place in Gardella. It would not occur to some­ on a train in June of 1918, and they began a one who saw the issue so plainly that there was lengthy exchange of correspondence, largely a need to address any "further ground" that on the First Amendment. ls8 In February of Judge Frank had discovered in Federal Base­ 1923 , during the Term following Federal ball, or to argue over the merits of the reserve Baseball, Holmes attended a meeting of the clause. He would not have felt it necessary to American Law Institute at which he saw Hand. labor peripheral arguments to which the re­ Holmes described the meeting in a letter to sponses were (to the smartest guy who ever Pollock, refeLTing to Hand as "a good U.S. lived) so obvious. This explains the odd note District Judge, whom I should like to see on of frustration in Hand's opinion; this explains our bench. "1 89 why Learned Hand simply did "not know how Third, and most important, Learned Hand to put it in more definite terms."193 was no stranger to this issue or to Holmes' analysis. Shortly after Holmes saw Hand in 1923, VII. Stealing Holmes: Why Flood two things happened. First, Hand was elevated Was Wrong to his seat on the Second Circuit, where he would remain until 1961. Second, the Supreme What has been discussed so far should Court handed down its decision in Hart v. B.F enable us to put in perspective - and to be Keith Vaudeville Exchange. As I noted above, more precise when we discuss - baseball's Hart had come to the Supreme Court from the "exemption" from the antitrust laws. There is Southern District of New York, to which it was no statutory exemption for baseball in the anti­ remanded. Upon completion of the subsequent trust laws. There is a judicially created exemp­ trial in Hart, the District Court found for the tion, but it did not originate with Federal Base­ defendants, "principally upon the [factual] ball. The Second Circuit's decision in Gardella determination .. . [that] the parties were [not] made the point; it could not have been much of engaged in interstate commerce."'90 The plain­ an exemption if the first circuit court to revisit tiff appealed again, and the Second Circuit af­ the issue in the 1940s found that it did not firmed in an opinion by Judge Manton. On the exi st. evidence submitted, the court concluded that It was the decision in Toalson that first cre­ "the transportation in interstate commerce of ated an exemption meant exclusively for base- 120 JOURNAL 1998, VOL. 2

ball and no other business. The attempt by the can thus begin sentences with the words: "One Toolson majority to attribute that exclusive ex­ hundred years ago, we held ... "), but we have emption to the actual intent of Congress, how­ had many, many Congresses - over one hun­ ever, was so baseless that no one took it seri­ dred at last count. At this writing, both houses ously. Thus, it took several years and several of Congress are controlled by the same party. more opinions before the message could sink Suppose that a differently constituted Congress in - even for some of the Justices in the passed a law in the 1970s, which was egre­ Toolson majority. And even after the Court put giously misinterpreted by the Supreme Court its foot down in Radovich, holding that not in the 1980s. Should today's Congress be per­ even football could have the same exemption mitted to carve that bad decision in stone by as baseball, certiorari was still granted in Flood considering a bill to disapprove the Court's v. Kuhn for the simple reason that the law on decision, and then failing to act? Or should a this question was embarrassing. President with a veto-proof minority be able to Given the state of things when Flood was achieve the same result? As often as not, we decided in 1972, however, is it not fair to say are grateful when Congress fails to act. It is that the ship had sailed? The Court missed its dangerous to attempt to ascribe discernible in­ chance, perhaps, to apply Holmes' opinion tent to such failures. properly in Toolson, and improved nothing by (2) The Court in Flood expressed its con­ its embrace of illogic and inconsistency in the cern about the "confusion and the retroactiv­ boxing and football cases, but how could that ity problems" that could come from changing be undone so much later in Flood? Surely, one the rules now, when baseball "has been allowed may argue, it will not help the Court's stature to develop and to expand unhindered" since with the legal community or the general public "1922. "195 The first problem with this ground is to add fickleness to long-standing error. one of logic. The Flood Court was, by its own But, wait a minute. Such sentiments im­ terms, dealing with an "anomaly" - that base­ plicitly accept the grounds put forth in Flood ball is exempt while other sports are not. But to justify the result. Ifwe look harder, however, why would football and boxing have relied on we will see that none of the three bases for the the rule of Federal Baseball over the years decision withstands scrutiny: any less? We would expect those sports not to (1) The first was Congress's "positive in­ have relied only ifthere were any basis to sus­ action" over the years, which the Court said pect that the exemption was exclusive to base­ "clearly evinced a desire not to disapprove" ball, and we know that that proposition did not the baseball exemption. The opinion in Flood, exist until it sprang fully formed from the last however, did not even respond to the ineluc­ sentence of Toolson. The Court nonetheless table argument on this point by the dissent in turned a deaf ear to any claims of reliance in the both Toolson and Flood: Congress had repeat­ boxing and football cases. On the other hand, if edly considered and failed to pass bills that, far we grant that assumption and say that other from "repealing" the exemption, would have sports would have known that only baseball was granted some or all of it to baseball. The fail­ exempt, the conundrum simply shifts: if other ure to pass an exemption is weak evidence of professional sports have never relied on an a specific intent to preserve it. antitrust exemption, they seem to have devel­ More fundamentally, however, the notion oped nicely. Why would it be so confusing and that subsequent congressional inaction should disruptive in 1972 to have baseball play by the cause the Court to avoid correcting its own same antitrust rules as football?196 mistakes is, as Justice Scalia has put it, "a ca­ Another fundamental flaw in this "retro­ nard." 194 Since the Constitution was ratified, we activity" concern is that its factual premise is have always had a single Supreme Court (which probably false. Prior to Toolson, just what was STEALING HOLMES 121 the expectation of organized baseball regard­ not apply to others similarly situated. That did ing its supposed antitrust immunity? In the late not happen until Shuster and international I 940s, a leading sportswriter, Lee Allen, was Boxing in 1954, and the point was not truly commissioned to write a history of baseball. driven home until Radovich was decided in The result, 100 Years of Baseball, was pub­ 1957. lished in 1950, after the Gardella decision, Thus, none of the grounds assigned in but before Toalson. From that perspective, Flood v. Kuhn stands up. What the opinion in Allen reached this conclusion about baseball's Flood reflects in every comer and crevice, more­ legal immunity: over, is the Court's perceived need to enlist Holmes in support of the result. To be persua­ In three quarters of a century, the va­ sive, in other words, the reasoning set out in lidity of the reserve clause has some­ Flood must be attributed to Holmes. Otherwise, times been affirmed in court, but usu­ the "retroactivity" and the "establ ished aber­ ally it has been denied. The issue is ration" arguments won't work. To sell the no­ not yet settled, and it is likely that tion of entrenched principles that could not be many additional lawsuits will be filed abandoned without disruption, "fifty years" and before it is.1 97 "half a century" sound properly dramatic. Thus, the opinion explicitly referred to the age of Federal Baseball no fewer than five times in During that same window of time - be­ its last three and one-half pages ("for half a tween Gardella and Toalson - Commissioner century," "since 1922," "half a century," "50 "Happy" Chandler testified before Congress in years after," "in 1922").200 Justice Douglas was 1951, offering a number of reasons for reinstat­ an unwitting ally in this effort, because his mis­ ing and granting amnesty to the Mexican play­ reading of Federal Baseba.ll as turning on the ers. His reason for settling the Gardella case, "trade or commerce" point also required that however, was simply this: " [T]he lawyers the clock be turned back to 1922 and all eyes thought we could not win the Gardella case."198 fixed on Holmes. (He understandably preferred (3) The final argument in Flood, based on that to even the mildest inspection of the opin­ the weight of judicial precedent discussing ion he joined in Toalson.) In contrast to five Federal Baseball, had two aspects. First, the decades, the nineteen years that had passed baseball exemption is an established "aberra­ since Toalson, or (more accurately) the fifteen tion" that "has been with us now for half a cen­ years since Radovich, would have sounded tury." Second, applying the antitrust laws to feeble. (Elvis has been dead for more than baseball now would require "withdrawing from twenty years, and I have unopened boxes in the conclusion as to congressional intent made the garage that are fifteen.) in Toolsoll." J99 Taking the easier point first, the The most egregious example offalsely en­ "conclusion as to congressional intent" in listing Federal Baseball to the result in Flood Toalson was a fabrication; no one has ever came in the final sentence, where the Court in­ tried to defend it, and it could hardly be de­ sisted that there be a congressional rather than scribed as time-honored. Flood provides no a judicial solution to the anachronistic base­ reason why "withdrawing" from that conclu­ ball exemption. That sentence makes the claim sion would be inappropriate from any juris­ that this stated preference for legislative ac­ prudential perspective. Turning to the first tion was "what the Court said in Federal Base­ point, the so-called "aberration" could hardly ball in 1922 and what it said in Toalson in be given a fifty-year pedigree. The baseball ex­ 1953." As to Federal Baseball, that statement emption became an aberration only when it is obviously false. There was no suggestion in became clear that the same exemption would Federal Baseball that Congress might choose 122 JOURNAL 1998, VOL. 2 to bring a business under the antitrust laws un­ Paley said in the eighteenth century - "who less and until it affected interstate commerce. can refute a sneer?"203 The last sentence in Flood was therefore I am not referring to the scholars and equally as unrooted in the words of Federal judges mentioned in this article, who (for bet­ Baseball as the last sentence in Toalson. Just ter or worse) thought thoroughly and hard as Toalson had tagged Holmes with an express about Federal Baseball. We are particularly congressional intent that did not exist, so Flood indebted to Professor White for his engross­ tagged him with a preference for congressional ing book on basebal1. 204 But for the general action that he did not mention. Both Toalson population of lawyers and (I love this term) and Flood were wrongly decided. Both have non-lawyers, Holmes' baseball opinion mer­ been caught stealing Holmes. its only condescension - the knowing snick­ ers of those who do not knOw. As we have seen, VIII. Conclusion moreover, Federal Baseball is scorned prin­ cipally for things that were not in the opinion, Soon after I began practicing law, I worked but later added by Toalson and Flood. with a colleague who was one of the legends of The alternative standard I propose - the the District ofColumbia bar, H. Chapman Rose. challenge, if you will - is the one so well Then in his mid-seventies, "Chappie" told fas­ articulated by Allan Bloom in an essay on cinating stories of his year as the last law clerk Shakespeare: to serve Oliver Wendell Holmes, Jr. At the time, Holmes was over ninety, and Chappie spent Every rule of objectivity requires that some of his time reading aloud to him. One day an author first be understood as he the selection was Lady Chatterly's Lover. Af­ understood himself; without that, the ter a time, however, Holmes raised his hand: work is nothing but what we make of "Sonny, we will not finish this book. Its dull­ it. 205 ness is unredeemed by its pornography."201 Another story Chappie would tell has also been chronicled by Holmes' biographers. It was And "we" have made a mess of Federal Base­ Holmes' description of Ralph Waldo Emerson, ball. Congress, as always, has legislation un­ upon reading a paper the very young Holmes der consideration to "repeal" the baseball ex­ had prepared as a critique of Plato. Emerson emption. While I expect any such bill to be writ­ had simply said: "When you strike at a king, ten in impenetrable prose, with several special­ you must kill him."202 This discussion of interest ornaments, my proposal would be Holmes' baseball opinion has been written with simple: the conviction that Emerson's words, if ever true, are sadly untrue today. Now, dismis­ No business, industry, service, or other siveness has replaced analysis. The popular commercial activity is exempt from the culture encourages us to feel intellectually su­ antitrust laws unless expressly so pro­ perior to those in the past who did not speak vided by act of Congress. The decision precisely in our words. It requires too much in Toalson v. New York Yankees is ex­ work to appreciate how those who came be­ pressly disapproved. fore us could take seriously concepts we now view as trite (like the difference between inter­ Note: The author is gratefulfor the support and state and local commerce). Thus, Holmes never help of his friends and colleagues, especially had a chance; he has been left to dangle in the Joe Sims, Don Ayer, Joe Migas, Feroz Moideen, wind not because anyone has understood him Dave Rutowski, Jana Crouse, and Marybeth fully in his terms, but because - as William McDonald. STEALING HOLMES 123

Author's Note players - bush-leaguers need not apply. We cannot have our federal courts clogged with This article was completed several Toledo Mud Hens bringing monopolization months before the end of the historic 1998 claims, after all .) baseball season - a year that featured the un­ As the commentary accompanying the thinkable seventy home runs of Mark statute, not to mention the text itself, makes McGwire and the overwhelming MYP season clear, this partial application of antitrust to of Sammy Sosa, as well as a perfect game and baseball is designed specifically to give the near-perfect season by the New York Yankees. players' union another bargaining chip in ne­ As if that were not enough history to make, gotiations with the owners. The idea is that , October of 1998 also brought the final pas­ when the negotiations get tough, the players sage and signing of Public Law 105-297, the can bring an antitrust suit to increase their le­ "Curt Flood Act of 1998." This Act works a verage. The tricky part is that the antitrust ex­ partial repeal of baseball 's antitrust exemption, emption for labor agreements protects the such that a major league player - and only a owners unless the union is decertified before major league player - may now file an anti­ the suit is brought (if there is no union, the trust suit. owners can' t claim the labor exemption).1 I regret to report that the Curt Flood Act Decertification is no small thing, and such a of 1998 is not as short as my legislative pro­ decision is obviously controlled by the union. posal. In fact, it is over 1,200 words long, add­ Thus, the relief granted by the Curt Flood Act ing a new Section 27 to the Clayton Act with can only redound to the benefit of the union no fewer than eighteen separate sections and because the union has effective control ove; subsections. The Act describes the purpose whether any major league player will ever suc­ of Section 27 as follows: cessfully invoke the "right" the statute pro­ It is the purpose of thi s legisla­ vides. In the meantime, all of the other poten­ tion to state that major league base­ tial plaintiffS - another owner, a competitive ball players are covered under the league, or a hapless minor-leaguer like our old antitrust laws (i.e. , that major league fr iend, George Toolson - are simply left out baseball players will have the same in the cold. rights under the antitrust laws as do The news stories, legislative reports, and other professional athletes, e.g., foot­ public statements occasioned by the Curt ball and basketball players), along Flood Act are peppered not only with the usual with a provision that makes it clear gaffes about Holmes and Federal BasebaLL that th e passage of this Act does not but also with novel historical propositions tha~ change the application of the antitrust are more than a little dubious. As to the gaffes, laws in any other context or with re­ the following is typical: spect to any other person or entity. The legislation reverses what PL. 105-297, Sec. 2. In other words, a Sen. Orrin Hatch, R-Utah, a chief major league player can now sue under the backer, called an "aberrant" 1922 Su­ antitrust laws, but the "exemption" is undis­ preme Court decision that exempted turbed with respect to such matters as team baseball labor relations from antitrust relocation, league expansion, and the minor laws on the grounds that it is a game 2 leagues. (The Act goes to nearly comical and not a business lengths of definition and loop-hole plugging to ensure that it applies only to major league As to revisionist history, both the Senate Re- 124 JOURNAL 1998, VOL. 2 port and the players association have pointed was invented by the last sentence of Toalson in to another benefit of this "repeal": preventing 1954, and was not rendered "aberrant" until the strikes.' In the view of hall-of-fame pitcher, boxing and football cases were decided later Jim Bunning, then a House member from Ken­ that decade. tucky, "the Curt Flood Act ... gets at 'the root The second proposition - that the exemp­ cause' of eight baseball strikes and stoppages tion has been the cause of strikes and work in 30 years."4 Finally, the White House state­ stoppages- is a bit of special pleading by the ment upon the signing of the bill spends most . players' union that naturally appealed to poli­ of its effort lauding the "courageous baseball ticians wishing to appear to be "doing some­ player and individual, the late Curt Flood, thing" about the 1994-95 baseball strike. whose enormous talents on the baseball dia­ When this argument found its way into the mond were matched by his courage off the Senate committee report of the "Major League field. . .. His bold stand set in motion the Baseball Reform Act of 1995," however, it was events that culminate in the bill [the President promptly refuted by the minority reports of has] signed into law."5 both Republicans and Democrats,7 which Let's take these points one at a time. First, pointed out that there is no historical evidence the notion that Holmes said baseball was ex­ for this alleged connection between strikes and empt because it is a "game," not a business, is antitrust. Take the record in baseball itself. so groundless that even Justice Blackmun spent Thomas Boswell has noted that the first "sig­ time debunking it in Flood v. Kuhn: nificant work stoppage" in baseball did not occur until 1981,8 The Committee Report does not suggest why the antitrust exemption, It should be noted that, contrary which the Report dates back to Holmes, took to what many believe, Holmes did sixty years to stop play. Then consider the call baseball a business; time and plethora of work stoppages in other, again those who have not troubled to non-exempt sports, such as the NHL and (as read the text of the decision have this is written) the NBA. Not even Jim claimed incorrectly that the court Bunning can explain how those crafty NFL said baseball was a sport and not a owners got away with using scab players (and business'" having the games count in the standings) dur­ ing a football strike, when the players had the As we have seen, moreover, Holmes did weapon of antitrust litigation available. not use the word "exempt," did not suggest that Turning to the White House's effusive baseball was different from any other sport "thank you" to Curt Flood for setting "in mo­ with respect to antitrust, and did not imply that tion the events that culminate[ d]" in the Curt his conclusion reached about the interstate na­ Flood Act of 1998, let us be clear. Curt Flood ture of the business could not change as soon was a fine man and a spectacular ballplayer. as the facts did. It should not be surprising He took a stand and, unlike many in our times, that, when Learned Hand reached exactly that accepted the full consequences. It neither conclusion in 1949, he did not even face the questions his courage nor demeans his argument that there was any special "exemp­ memory to suggest that Justice Blackmun's tion" for baseball. As we also saw, not even opinion in Flood v, Kuhn probably delayed any those closest to baseball in the early 1950s repeal of baseball's antitrust exemption - es­ thought they had any special exemption - or pecially the kind of partial appeal reflected in even a reasonable chance to overturn Learned the 1998 statute- by as much as a genera­ Hand's decision in Gardella. Rather, the base­ tion. ball "exemp'tion" discussed so blithely today In sum, I would draw two initial conclu- STEALING HOLMES 125 sions from consideration of the Curt Flood Act 1998. Thus, those who have announced in the of 1998. First, the Act could be a poster child press and in committee reports that the statute for the proposition that a subsequent Congress works "an explicit reversal"l0 of Federal Base­ should not be entrusted to repair judicial mis­ ball have not even read the statute they are cit­ takes in statutory construction. It has all the ing. Is that too much to ask? marks of bad legislation on it, from special in­ Of course it is. But take heart. The cases, terest pleading to unprincipled compromises the statutes, the words are there to be read and (one explanation for the exclusion of the mi­ understood by those who are unembarrassed nor leagues was that the Chairman of the House by accuracy for the sake of accuracy. Let us Judiciary Committee is a minor league fan who take solace in knowing that, even as the rea­ 9 wanted his favorite teams unaffected ). Far soning of Federal Baseball remains misun­ from removing Toolson's erroneous exemption derstood, its holding remains undisturbed. And of baseball from the antitrust laws, this Act if we are the only ones who know, that's OK works a small repeal of only arguable utility too. for those who need protection the least trans­ forming the rule of Toolson into a judicial ex­ Endnotes emption that inexplicably applies to some I 259 US. 200 (1922). Federal Baseball is "still the law" ballplayers, but not to others. despite the recent passage of the Curt Flood Act of 998, But such a result should not be surpris­ which purports to work a partial repeal of baseball's anti­ ing. We have been shown time and again that trust exemption. The new statute is discussed in the the people involved in the legislative process Author's Note at the end of this article, 2 Gardella v, Chandler. 172 F,2d 402 (2d Cir. 1949). simply cannot help themselves. They live in 3 1oolson v. New York Yankees, fnc., 346 US, 356, 357 the now. They pass (or fail to pass) legisla­ (1953). tion in response to the ability of current con­ 4 Flood v. Kuhn, 407 U.S, 258 (1972). stituents and interest groups to reward them , Joe Sims, Antitrust in the Health Care Field: in the appropriate political coin. It is chimeri­ The First Decade (1977-1 987), (unpublished manu­ cal to expect them simply to restore the origi­ script, on file with author). Before the Nat'l Health Lawyers Assoc. Tenth Annual Seminar on Antitrust in nal intent of a prior Congress to a statute that the Health Care Field (Jan. 29, 1987), a court has misread. If the correct answer to a 5 Gardella v. Chandler, 172 F2d 402, 409 (2d Cir. statutory question is "black," but a court 1949). wrongly reads it as "white," the legislature will 7 Salerno American League, 429 F.2d J 003, 1005 inevitably cure the mistake by enacting some (2d eir. 1970), cal, denied, 400 US, 100 I (1971). 8 G. Edward White, Creating the National Pastime shade of mottled gray. 70 (1996). The second (and highly satisfying) con­ 9 Flood v. Kuhn, 407 US. at 286. clusion I draw from the Curt Flood Act of 1998 10 193 U.S. 197,400 (l904). is that it provides unwitting support for my the­ I! Hans B. Thorelli, The Federal Antitrust Policy 474 (1955). sis here: that no "exemption" can be pinned 12 Robert H. Bork, The Antitrust Paradox 31 (J 978). 13 fd. on Holmes, and that you can "repeal" the ex­ 14 ROlhery Storage & Van Co. Alias Vim Lines, fnc., emption, in whole or in part, without rejecting 1986-1 Trade Cas. (CCH) '167,121 at 62,774 (1986). the reasoning of Federal Baseball. Congress IS Richard A. Posner, "Foreword: Holmes," 63 Brook has now illustrated the point by enacting a law L. Rev 7,7 (1997). for the purpose of repealing baseball's antitrust J6 lei. at 17. exemption that, by its terms, does not overrule 17 Radovich v. Nal'l. Footbali League, 352 U.S. 445, 451 (1957). Holmes' holding. The plaintiff before Holmes, " Bork, at 30 ("the Addyston opinion of 1898 you will recall, was the Federal Baseball Club may well have been the high water mark of rational anti­ of Baltimore, not a major league ballplayer and trust doctrine"). hence not affected by the Curt Flood Act of United States v. Von S Grocer;) Co, 384 U.S. 270 (1966). 126 JOURNAL 1998, VOL. 2

20 Albred1/ v. Herald Co., 390 U.S. 145 (1968) (Douglas, 52 Id. at 29 1-93. J., concurring). 53 Id. at 293.

21 Siale Oil v. Khan, 118 S. Ct. 275 (1997). 54 Bill James, The Bill .James Historical Baseball 22 Sierra Club v. Morton, 405 U.S. 727, 741 (1972) Abstract 570 (Villard 1988). (Douglas, 1. , dissenting). 55 "Musial calls 'Strike 3' on Pasquels," SI. Louis POSI­ 2J Lee Allen, 100 Years of Baseball 180-88 (1950). Dispatch, Jun. 7, 1946, at 8C.

Similar circumstances attended the birth of the Union 56 "Card Stars Not to Jump," NY Times, May 29, 1946. Association, id. at 74-83, the Player's (or Brother­ at 26:7. hood) League, id. at 103-14, the American Association, id. 57 "Musial Calls 'Strike 3' on Pasquels," SI. Louis Posl­ at 64-73, and of course the surviving American League, id Dispatch, Jun. 7, 1946, at 8C. at 142-51. See also Hy Turkin & S.c. Thompson, TheOffi­ 58 Allen, supra note 23, at 293. cial Encyclopedia of Baseball 16-20 (revised edition 1956). 59/d. at 294. 2' Bob Broeg & William 1. Miller, Jr., Baseball from a Differ­ 60 White, supra note 8, at 292. ent Angle 224 (1988); Turkin & Thompson, supra note 23, 61 Id at36. 62 Gardella v. Chandler, 172 F.2d 402 (2d Cir. 1949).

25Broeg & Miller, supra note 24, at 225. OJ 172 F.2d at 409.

26 See Notionol League of Prof'! Baseball Clubs v. Fed­ 64 Id. at 409. eral Baseball Club 0/ Baltimore, Inc. , 269 F. 681,682 (D.C. " ldat410. Cir.I920). "" Id at407, 408.

27 Roger I. Abrams, Legal Bases, Baseball and The Law at 67 1d at 407, 408. 55 (1998); Allen, supra note 23, at 185. 68 White, supra note 8, at 293-94 (emphasis added). 69 28 Federal Baseball Club 0/ Baltimore, Inc. I( Naliollal 172 F.2d at412. League 0/ Prol'1 Baseball Clubs, 259 U.S. 200, 208 7° ld. (1922); The New York Times, Apr. 13, 1919, at 21. 71 Gerald Gunther, Learned Hand, The Man and the

29 Federal Baseball, 259 U.S. at 208. .Judge, xv (1994).

30 155 U.S. 648 ( 1895). 72 Dan Abramson, "Baseball & the Court," ConstilU­

JI Federal Baseball, 259 U.S. at 20 I (emphasis added). tion, Vol. 4fNo. 3, at 74 (Fall 1992); see also Burt 32 Id. at 203. Solomon, The Baseball Timeline, 493 (1997).

JJ Id. at 208-209. 7J Toolson v. New York Yankees, 346 U.S. 356, 358 " White, supra note 8, at 79. (1953) (Burton, J. dissenting) (citing H.R. Rep. No. 35 Id at 79. 2002, "Impact of Antitust Laws on Organized Base­ 36 "The Supreme Court 1953 Term," 68 Harv. L. Rev. ball" 82d Cong., 2d Sess. 4, 5). 104, 136 (1954). 741d, 346 U.S. at 361 (emphasis added).

37 John Eckler, "Baseball - Sport or Conunerce?," 17 7j Flood v. Kuhn, 407 U.S. 258, 281 (1972).

U Chi. L. Rev. 56, 65 (1949). 76 See the Author's Note on the partial repeal in the 3S Id. at 66. Curt Flood Act of 1998, infra at p. ??

39 "Recent Cases," 105 U Pa. L. Rev. 110, III (1956). 77 Toolson, 101 F. Supp. 93,94 (S.D. Cal. 1951). ,0 Uniled Slates v. In/ 'I Boxing Club 0/ New York, Inc., 7. 101 F. Supp. at 94 , 95.

348 U.S. 236, 251 (1954) (Minton, J., dissenting). 79 346 U.S. at 357. "/d. at 248 (Frankfurter, 1., dissenting). 80 "Recent Cases," 105 U Pa. L. Rev. I 10, 1 12-13 n. 24

42 Flood v. Kuhn, 407 U.S. 258,286 (1972) (Douglas, (1956).

J., dissenting). 8 1 His name was Paul Sorrento.

43 Id. 82 346 U.S. at 360, 359 n. 3, 358, 358 (emphasis 44 United Slates v. Shuberl, 348 U.S. 222 (1954). added).

45 Radovich v. Nal'l Foolball League, 352 U.S. 445 SJ 346 U.S. at 360. ( 1957). •• 259 U.S. at 209.

'6 Flood v. Kuhn, 407 U.S. at 270 n.IO (quoting 2 Harold 85 346 U.S. at 361, at 358 and 365, 35811.2. Seymour, Baseball 420 (1971 ». so US v. Shubert, 348 U.S. 222 (1955). 47 White, supra note 8, at 71-72; NY. Times article, April 87 US v. Inlernational BOXing Club o/New York, In c., 348 12, 1919, p. 12, col. 2. U.S. 236 ( 1955).

48 Anthony 1. Sebok, "Introduction," 63 Brook. L. Rev. 1,3 "' ShuberJ, 348 U.S . at 228 (emphasis added), 229, 230. (1997). 89 Hal'l v. B.F Keith Vaudeville Exchange, 262 U.S. 271

49 Allen, supra note 23, at 291. (1923).

50ld. 90 262 U.S. at 274.

51 Id. at 291-92. 9 1 348 U.S. at 230. STEALING HOLMES 127

92 348 US. at 242-43. )4) Asinof, supra note 133, at 13. 9] Id. at 243. ,.2 Id. at 239 & 270.

".. 348 U.S . at 25 1. 14) Stephen Jay Gould, " Introduction," Asinof, Eight 95 Id. M en Out xvi ii ( 19 88). 96 348 U.S. at 250. 144 Sowell, supra note 122.

97 Radovich v. National Football League, 352 U.S . I4l Sowell, supra note 122 at 3. 445,447 (1957). 146 Id. at 20-21. 98 1d. at 451, 452. 147 1d. at 188.

99 352 U.S. at 452. 148 Id. at 20. '''' G.E. White, supra note 8, at 297. 149 Id. at \97. '" Abramson, supra note 72, at 74. 150 James, supra note 54 at 87.

102 Flood v. Kuhn, 407 US. 258 (1972). III David Halberstam, The Summer of'49at 80-81 ( 1989).

10)404 U.S. 880 (1971)(certiorari). III James, supra note 54 at 129.

104 407 U.S. at 269. Il) Compare Halberstam, supra note 15 1, at 12 with James, 10l /d. at 261. supra note 54, at 129. 106 1d. at 263. 154 Ha Iberstam supra n. 15 1.

107 fd. at 261, 258, 283 . III Solomon, supra note 72, at 494. 10s /d. at 282, 284 1l6 1d. at 548. 109 407 U.S . at 285. 117 Halberstam, supra note 15 /. at 23. Iiol d. at 286. 158 !d. at 150.

III Id. 159 Id. at 207. 11 2 1d. 160 !d. at 252.

II) 352 U.S. at 452. 161 Ray Robinson, The Home Run H eard 'Round 114 407 U.S. at 282. th e World (J 991). II I 407 U.S. at 286 & n. 1. 162 White, supra note 8, at 207.

11 6 G.E. White, supra, n. 8 at 70. 16) Id. at 206-07 & 218. 11 7 Id. at 82, 83, (emphasis added). 164 Sugar, supra note 130 , at 180. 11 8 Richard A. Posner, ed. The Essential Holmes at 16l fd. 207 ( 1992) (excerpt from address on John Marshall). 166 James, supra note 54, at 69 & 88; Shaughnessy, 119 Broeg & Miller, supra n. 24 at 15. supra note 128, at 2 1. 120 C harles C. Alexander, Jobn McGraw 2 (Viking 167 Sowell, supra note 122, at 21-22. J 988). 168 259 U.S. at 208. 121 Broeg & Miller, supra note 24, at 9. 169 269 F. at 685. 122 Mike Sowell. The Pitch That Killed 10 (1989). 170 259 U.S. at 208. I2J Id. at 69. 171 407 U.S. at 287 , 124 Solomon, supra note 72 at 202. 172 259 U.S. at 203. m James, supra note 54 at 101. 17) Id.

126 fd. at 86. 17< Id. at 204 (emphasis added). 127 Id. I7l See, e.g. , McLain v. Real Estate Bd., 444 U.S. 232 128 Dan Shaughnessy, The Curse of the Bambino 29 (1980), ( 1990). 176 White, supra note 8, at 8 1.

129 James, supra note 53 at 91 . )77 262 U.S. at 273-274. 130 B.R. Suga r, Baseball's 50 Greatest Games 177- '" Davis v. Passman, 442 U.S , 228, 239 n. 18 (1979) 78 (1986). (expla ini ng the difference between "jurisdicti on,"

III Solomon, supra note 72 at 222. "standing," "cause of acti on," and " relieP'). 1J2 1d. at225. 179 228 U.S.22(1913). Il) Eliot Asinof, Eight Men Out (1963). 180 Id. at 25-26. 114 Eight Men Out at 5. 181 262 U.S. at 274, III White, supra note 8, at 101-02. 182 Id. 136 Asinof, supra note 133, at 21-22. 18) 348 U.S. at 251 . 1J7 /d. at 16- 17. 184 407 US. at 270 n.1 O. "' G.E. White, supra note 8, at 105. I8l 259 US. at 203. 1l9 1d. at 95-96. 186 f d. at 209. 140 Solomon, supra note 72, at 219-20; Asinof, supra 1$7 Irving Younger, Basic Concepts (nThe Law of Evidence, note 130, at 14-15. Tape No. II, " Burdens of Proof and Presumptions" (Na- 128 JOURNAL 1998, VOL. 2

tio nallnstitute for Tria l Advocacy). Holmes and His Family 128 (1944) .

188 G.Edward White, Justice Oliver Wendell Holmes, Law 20) William Pa ley, The Principles of Moral and Political and tbe InnerSelf, 424-25 (1993). Philosophy, Vol. II , book V, ch. 9 (1785) . IS9 Holmes to Pollock (2/24/23), quoted in Richard A. Posner, 204 White, supra note 8. The Essential Holmes at 216- 17. 105 All an Bloom, "Political Philosophy and Poetry" (1964), 190 Harl v B. P. Keith, 12 F.2d 34 1, 344 (2d Cir. 1926). repri nted in Giants and Dwarfs: Essays 1960-1990 61 191I d. at 343. ( 1990). 192 172 F. 2d at 408. 19) Id. Endnotes (to Author's Note) 19' Johnson v. Tran sportation Agency, San/a Clara I See Brown v. Pro Football, Inc., 518 U.S. 231,250 (1996). Coun/y. California, 480 U.S. 616, 672 (1987) (Scalia, 2 J. Abrams, "Congress sends baseball an ti trust bill to presi­ J. , dissenting) ("vindication by congre ssional inaction dent" lAP wire story] October 7, 1998. is a canard"). ' E.g., S. Ross "Cl inton signs bi ll removing baseball anti­ '" 407 U.S. at 283. trust exemption for labor matters." [AP Wire story] Octo­ 196 Although it is beyond th e scope of thi s article, one ber 28, 1998. hi storical irony of the baseball "exemption" is the lack of ' M. Deibel , "U.S. Del etes Part of Baseba ll 's Antitrust Sta­ practical impact it has had, in la rge part due to the labor tus," Scripps Howard News Service, October 9, 1998. exemption from the antitrust laws . This is why, from iss ues ' Statement By the Presi dent , MZ Presswire, October 29 , of free agency to league organization, the various profes­ 1998. sional sports have such striking sim ilarities - and why 6F1oodv Kuhn , 407 U.S . 2S0 at 270 n.IOquoting H. Seymoill, more recent attempts by lower federal courts and state Baseball 420 (1971). courts to limit the reach of th e baseball exemption to the 1Report 104-231, Major League Ba seball Reform Act of reserve clause have had little practical effect as well. E.g., 1995, S.627, I 04th Congress, 2d Sess. (February 6, 1996) at Piazza v. Major League Baseball, 83 1 F. Supp. 420, 438 19 (Sen . Specter) & 26 (Sens. Brown and Feinstein). (E.D. Pa. 1993); Bullerwor/h v. Na/ional League ofProfes­ 'T. Boswell "NBA Steals Wrong Play From Baseball," Wash­ sional Baseball Clubs, 664 So. 2d 1021 (Sup. Ct. Fla. 1994). ing/on Post, Sports, at C I (November 6, 1998) . 197 Allen, supra note 23, at 72. 9"Baseball's Exem ption : Striking Ou t?" Co ngressional Quar/erly Weekly, August IS , 1998 at 2222 . 19' White, supra note 8, at 295 . I oSee. e.g. , Report No. lOS- I 18, Curt Flood Act of 1997, 199 407 U.S. at 284 . S.S3, I OSth Co ng. , 1st Sess. at 7 (October 29 , 1997) (Con­ 200 407 U.S . at 282-2 85 . gressional Budget Office Cost Estimate) ("Ifenacted, S.53 201 Rose family anecdote, as co nveyed to the author. would represent an expl ici t reversal of . .. Federal Base­ 101 Catheri ne D. Bowen, Yankee From Olympus, Justice ball"). Justice Levi Woodbury: A Reputational Study

William D. Bader Roy M. Mersky*

Justice Levi Woodbury served on the Su­ Resolves, defending the Madison administra­ preme Court from 1845 until his death in tion, and thereby displaying independence and 185l. i Although he was held in high esteem moderation in championing this controversial then, his reputation declined dramatically over point of view for New England.4 In 1816 Gov­ the years. Today he languishes in obscurity,2 ernor William Plumer appointed the twenty­ recalled only by keen Supreme COutt buffs. seven year old Woodbury to New Hampshire's We intend to trace this striking decline and highest court, calling him a "gentleman of tal­ offer ideas that help to explain it, as well as ents, science & legal requirements & of an explore some general implications for a bet­ irreproachable character."5 Although his ten­ ter understanding of the Supreme Court. In ure on the Superior Court of New Hampshire assessing his reputation, we will briefly ex­ is beyond the scope of this paper, it certainly amine his career and analyze his jurispruden­ was characterized by moderation and indepen­ tial impact and his extrajudicial scholarship. dence.6 Indeed, it is pertinent to note that Jus­ We will also examine contemporary descrip­ tice Samuel Bell was so favorably impressed tions of Woodbury, his obituaries, and relevant by h is younger colleague that he predicted legal scholarship about him over time. Woodbury's subsequent elevation to the Su­ Levi Woodbury was born on December preme Court of the United States.7 2, 1789, in Francestown, New Hampshire.3 Evi­ Independence, tempered by moderation, dence of his distinctive style and rising promi­ also seemed to characterize Woodbury's gu­ nence is abundant from his political and legal bernatorial career in New Hampshire. In 1823 years in the Granite State. At the time of the there was much bitter factionalism within the War of 1812 he authored The Hillsborough New Hampshire Democrat-Republican party. 130 JOURNAL 1998, VOL. 2

In that year its caucus chose General Samuel Dinsmoor as its candidate for governor. A group of insurgent Democrat-Republicans then held an irregular public convention and se­ lected Levi Woodbury as their nominee. Woodbury won the governorship by a land­ slide, displaying an ability to unite a coalition of diverse Democrat-Republicans and Feder­ alists 8 In his Inaugural Address, he displayed his independence and moderation and advocated an eclectic combination of Democrat-Repub­ lican and Federalist principles, including pri­ mary education and public higher education, promotion of agriculture, and manufacturing, acceptance of national funds for internal trans­ Governor William Plumer (above) appointed portation improvements, higher judicial sala­ Levi Woodbury, then twenty-seven, to the ries, limited judicial discretion, higher filing Superior Court of New Hampshire in 1816. fees for litigants, and more exacting standards of quality for jury duty.9 During his tenure as freedom.14 In the area of political philosophy, governor, the factional ism proved too much, Woodbury delivered lectures such as "Traits of even for Woodbury. By trying to bring the feud­ American Character" and "The Right and Duty ing parties together, he made himself the par­ of Forming Independent Individual Opinions," tial focus of their animosity and was not re­ while he sat on the Supreme Court. IS Arguably, elected. To his credit, however, Governor these lectures put Woodbury in a class with Woodbury was able to preserve the Democrat­ Abraham Lincoln and Daniel Webster, who Republican party against Federalist resurgence were contemporaneously delivering important and third party movements. 10 The electorate and addresses that continue to be of interest to the political elites duly rewarded him by elec­ scholars. 16 tion to the speakership of the New Hampshire In addition to his state service, Woodbury House. 11 held a number of federal posts: He was twice It is also pertinent to note that like his Su­ elected to the United States Senate from New preme Court predecessor, Justice Joseph Hampshire, served as Secretary of the Navy Story, Woodbury was an intellectual who emu­ under President Andrew Jackson, and as Sec­ lated the Ciceronian ideal of the broadly cul­ retary of the Treasury under both Jackson and tured lawyer.12 Early on he developed numer­ President Martin Van Buren.17 Indeed, accord­ ous cerebral avocations that he pursued ing to a major work edited by Dumas Malone, throughout his life. He especially enjoyed Jackson valued him for "his calm determina­ "[c Jollecting statistical and archaeological in­ tion, scholarship, and logic .. . ".18 During this formation, forming cabinets of specimens in time, he was a perennial presidential contender botany, conchology, mineralogy, and other and had earned the laudatory nickname "The branches of natural science, studying questions Rock of New England Democracy."19 connected with engineering, naval architecture, Woodbury's contemporary importance is par­ and the application of science to the useful ticu lady evidenced by the fact that the old Jack­ arts generally."I) Over the years he wrote and sonian establishment, led by former President spoke on such diverse topics as public educa­ Martin Van Buren and former Senator Thomas tion, science, women's rights, and religious Hart Benton, decided in 1851, just prior to A REPUTATIONAl STUDY 131

Woodbury's death, to choose him as their Presi­ adjudication, including the Contract Clause, dential nominee.20 the commerce power, slavery, the "Political It is indicative of his high legal reputation Question Doctrine," and admiralty jurisdic­ that Senator Levi Woodbury was selected in tion. It would appear from his record that he 1826 to give the Democratic response oppos­ was a leader of the Court, while also evi­ ing a judiciary bill that would have increased dencing a distinctive and early concern for the size of the Supreme Court from seven to individual liberties. ten Justices. 21 Woodbury was also chairman In Zones v. Van Zandt, the only major de­ of the Senate Commerce Committee, where cision on the constitutionally contentious is­ he undoubtedly gained a valuable perspective sue of slavery during this time, Woodbury, who on the difficult Commerce Clause issues that was only in his second year on the Supreme he later confronted on the Supreme Court.22 Court, was assigned to write the opinion for a As Secretary of the Navy, from 1831 to 1834, unanimous Court.28 Despite his personal op­ Woodbury restored efficiency to the Depart­ position to slavery, he upheld the "Fugitive ment and evidenced his usual work ethic by Slave Act of 1793."29 In a grand jury charge, personally inspecting all of the nation's mili­ Justice Woodbury said, "Nor is the question a tary shipyards.23 While Secretary of the Trea­ matter of doubt whether slavery is not gener­ sury from 1834 to 1840, Woodbury displayed ally wrong, since on that point, in New En­ his characteristic independence as one of the gland, there is probably only one opinion."JO few New Englanders who helped the Jackson In Van Zandt, he held that the Act was not un­ and Van Buren administrations close the Na­ constitutional since the Constitution explicitly tional Bank and establish an independent trea­ sanctioned slavery. He also rejected the sury system. Woodbury's argument that the appellant's claim that a right of property in man National Bank was no longer constitutional, violated natural law, if not the Constitution it­ because it failed to meet " necessary and self, thereby invalidating the Act.J1 Woodbury proper" criteria under contemporary condi­ led with reasoning that clearly stated the legal tions, was consistent with his later Supreme positivist approach to jurisprudence, writing: Court jurisprudence of positivist strict con­ struction tempered by moderation 24 Whatever may be the theoretical When Justice Story died in September of opinions of any as to the expediency 1845, President James Polk appointed of some of those compromises, or Woodbury to the Supreme Court in a recess of the right of property in persons nomination.25 The Senate confirmed him on which they recognize, this court has January 3, 1846, without a formal vote. 26 In no alternative, while they exist, but the above context, it is not surprising that his to stand by the constitution and laws appointment to the Supreme Court brought with fidelity to their duties and their forth great praise. The Boston Post, for ex­ oaths. Their path is a strait [sic] and ample, wrote glowingly that the nominee was narrow one, to go where that consti­ "a thorough American statesman and jurist, and tution and the laws lead, and not to a sagacious, sound, and always republican ex­ break both, by 32 traveling without pounder of the Constitution, .. .and above all a or beyond them.l2 faithful and fearless guardian there of the con­ stitutional rights of the States and the people."27 Contract rights cases were the most fre­ In his brief tenure on the Court, quently litigated cases during Woodbury's ten­ Woodbury authored some very important ure. In the eight Contract Clause cases in which opinions in the major areas of contemporary he sat, he wrote the Court's opinion in two, 132 JOURNAL 1998, VOl. 2

against the jurisprudential tide of the Jackso­ nian era. Specifically, such Jacksonian juris­ prudence, as exemplified by Taney and Daniel, was often characterized by an antimonopoly, antiprivi lege, and somewhat anti property cast of mind, whereby state power took priority over contractual obligation.J6 Woodbury ig­ nored such theory and honed in on the con­ crete particulars; to him, the bank's power to dispose of its notes was a matter of fact inher­ ent in the very definition of a bank, and could only be denied by the express limitation of its banking charter.37 Perhaps the most complicated issue fre­ quently presented to the mid-nineteenth cen­ tury Supreme Court involved the Commerce Clause. The Court was unable to resolve it in the License Cases and the Passenger Cases ,J8 and confusing concurring and dissenting opin­ ions abounded. In the License Cases the ques­ When President James Polk (above) appointed Levi Woodbury (below) to the Supreme Court tion before the Court was whether states could in 1846, the reaction of the press was favorable. regu late the importation of alcoholic bever­ As Secretary of the Treasury from 1834 to 1840, ages from other states and foreign countries. Woodbury had played a key role in closing the National Bank and in developing an independent In the Passenger Cases, the issue was whether treasury system. the imposition of a head tax on arriving aliens was a legitimate right of the states. filed written concurrences with the majority Essentially, the various opinions centered on in two, and signed the majority opinion with­ the nature of the commerce power itself as out written comment in four. JJ Woodbury dis­ played his leadership in this area by champi­ oning moderate, case-by-case determinations. For example, in Planters' Bank v. Sharp, Woodbury showed this characteristic concern for specific facts over general ideology by leading the Court over the dissenting voices of Chief Justice Roger B. Taney and Justice Peter Daniel, who favored a more extreme and doctrinaire states' rights position.J4 Woodbury found that an 1840 Mississippi statute, which forbade a state-chartered bank from transfer­ ring notes to other banks, as it had done previ­ ously under its charter, impaired the obliga­ tion of contract under Article 1, Section 10 of the United States Constitution.J5 In finding the State of Mississippi's action a violation of the contract clause, Woodbury was able to carry a majority of the Court with him, and thereby A REPUTATIONAL STUDY 133

In a series of cases, the Supreme Court debated whether the Commerce Clause intended the national government to retain power over commerce or whether that responsibility should lie primarily with the states. In the Passenger Cases, the issue was whether a head tax on arriving aliens, such as these Russian and Polish immigrants sailing into New York harbor, was a legitimate right of the states. either exclusively national in origin, or pri­ local, territorial, and detailed legis­ marily within the control of the several lation should vary in different States, states 39 Woodbury, in his first commerce and is better understood by each than clause opinion, a concurrence in the License by the general government . .. 40 Cases, found in favor of the state power, but started to innovate boldly by defining the Justice Woodbury's reasoning in his Li­ problem in terms of the subject matter of cense Cases concurrence, finally carried a ma­ regulation rather than the nature of the com­ j ority in Cooley v. Board of Wardens , decided, merce power itself. He wrote: shortly after his death, and marks a monumen­ tal shift in legal analysis at the Supreme Court. I admit, that, so far as regards the uni­ In fact, Woodbury's approach initiates the ma­ formity of a regulation reaching to jor movement from abstraction to a common all the States, the grant of commerce law emphasis on the particulars of context and power to cong ress must in these the modem weighing of competing interests cases, of course, be exclusive ... . But on a case-by-case basis. Professor Archibald there is much in connection with for­ Cox believes that in Cooley "attention is eign commerce which is local within shifted from a Newtonian focus on the source each State, convenient for its regula­ of an indivisible power to a thoroughly mod­ tion and Llseful to the public, to be ern, pragmatic concentration ...". Cox adds: acted on by each till the power is "I have never looked for earlier evidence of this abused or some course is taken by shift in constitutional thinking, but per-haps it Congress conflicting with it. ... This is Justice Woodbury's great contribution to the 134 JOURNAL 1998, VOl. 2 style of thinking in the U.S. Supreme rope around his neck, subject to be Court."42 A search of the case law fails to turn hung up by a military despot at the up such evidence, other than Woodbury's opin­ next lamp-post, under the sentence of ion, and thus confirms his great pioneering some drum-head court-martial contribution. Nevertheless, it is likely perti­ nent to Woodbury's future reputational decline As noted above, Justice Woodbury wrote that Justice Benjamin Curtis, who wrote and lectured extrajudicially on various schol­ Cooley, did not appropriately cite Woodbury arly topics. Such scholarship was unusual in in this most seminal commerce clause opin­ its day. Of those men who served with ion, thereby making it less likely that legal his­ Woodbury, including Chief Justice Taney and torians would subsequently credit him. Justices Daniel, John McKinley, John Catron, Woodbury displayed his independent, James Moore Wayne, John McLean, Samuel moderate, case-by-case judicial method, as Nelson, and Robert Grier, only Taney and well as a sensitivity to individual liberties that McLean evidence extrajudicial work product was unusual for his day, in Luther v. Borden.43 of any sort.48 With the exception of a short On June 25, 1842, a rival reform government biographical essay, published posthumously, in Rhode Islan~ led by Thomas W. Dorr, tried Taney's writings consist of a privately re­ to seize control of the Rhode Island arsenal printed judicial opinion, and some private let­ held by the regular state government. The lat­ ters published after his death. 49 McLean was ter had been elected pursuant to the original also a letter writer; his private letters were colonial charter, which had not been amended published posthumously.50 upon statehood. The Dorr Rebellion was The contents of Justice Woodbury's lec­ thwarted, and the regular charter government tures and extrajudicial writings, which can only placed Rhode Island under martial law, permit­ be accessed in rare book collections or on mi­ ting state officers to break into homes and crofiche, truly distinguish him from his peers. search them44 Chief Justice Taney, in his opin­ Specifically, Woodbury researched and articu­ ion for the Court, held that the issue of which lated concerns regarding the relationship be­ state government was legitimate was a politi­ tween the individual's liberties and the state cal question and was therefore outside the with particular reference to First Amendment Court's jurisdiction. Taney did not reach the freedoms, in an era when such topics were not constitutional question of the martial law dec­ often considered. 51 As Robert McCloskey de­ laration.45 Justice Woodbury, who agreed with scribed it, the Court was then centrally occu­ Taney on the political question doctrine, was pied with the nation-state relationship; in the the lone voice of dissent. Specifically, he found post-Civil War era constitutional law became the Rhode Island statute declaring martial law primarily concerned with the business-govern­ to be unconstitutional.46 In an opinion that is ment relationship; and only after 1937 did the precursive in its concern for individual liber­ Justices evidence great interest in the relation­ ties, Woodbury wrote of the statute: ship of the individual and his rights with the government. 52 It exposed the whole popula­ Characteristic of Justice Woodbury on tion ... to be seized, without warrant the subject is the following, which, although or oath, and their houses broken open displaying an unusual concern for the Taney and rifled .... By it, every citizen, in­ era, is an eloquent precursor oftwentieth-cen­ stead of reposing under the shield of tury constitutional preoccupation: known and fixed laws as to his lib­ erty, property, and life, exists with, a Libelty here [in the U.S.] also is not A REPUTATIONAL STUDY 135

partial in her influence, but a pervad­ ber 4, 1851 , death at age sixty-one. At the open­ ing principle, that electrifies every­ ing of the Supreme Court, shortly after thing. It is liberty of conscience and Woodbury's death, Attorney General John J. of occupation in social life as well Crittenden, Chief Justice Taney, and official as of government. It is not only lib­ representatives of the Bar eulogized him in erty of thought concerning religion glowing terms.55 Crittenden remarked, ironi­ or public affairs, which is contended cally as it happens, in light of Woodbury 's later for, and which it is difficult in any plunge into obscurity: "He has fallen in the country, however desired by tyranny, midst of his earthly honors; he has fallen as to overawe or suppress, - but it is all of us must fall, and left with us only his liberty of speech and the press, the fame, which is immortal."56 unlicensed printing (untrammeled by At the request of the city government of censorships) such as was advocated Portsmouth in New Hampshire, a eulogy for by that sturdy republican, Milton. it Justice Woodbury was composed by the submits to no restraints but those prominent Jacksonian legal figure Robert which should control all conduct in Rantoul, Jf. 57 Rantoul was a well-known re­ civil life, the moral impropriety former and the United States attorney for Mas­ of doing wrong, and the legalliabil­ sachusetts. 58 Although he was personally close ity to atone for it after committed. It to Woodbury, he strongly supported Van Buren is likewise liberty of action in all for President in 1843, and was characteristi­ things not conflicting with the previ­ cally independent of mind.59 He wrote of ous rights of others, - running Woodbury's tenure on the Supreme Court.: through every ramification of soci­ ety, secular or ecclesiastical, public We saw with astonishment, that he had or private. 53 no sooner taken his seat on the bench than he handled the abstruse distinc­ With respect to judicial reputation, tions of the law of patents, the meta­ Woodbury quickly gained the highest appro­ physics of legal science, like an old bation for his work on the Supreme Court. The practitioner. Through the vast com­ Boston Post's Wa shington correspondent pass of the questions originating in our wrote in February 1846: widespread navigation, and diversi­ fied commercial interests, he was Judge Woodbury is taking a com­ equally at home; while to the admin­ manding position on the Bench which istration of constitutional law, and the he dignifies and adorns, and the du­ examination of cases involving the ties and details of which seem as fa­ structure of the executive machinery miliar to him as if he had devoted his of the government, and its action in whole life to them. He had delivered any of its subordinate branches, he severa! opinions, this Term, distin­ brought an experience, which no guished for ability, clearness and other judge of that Court had ever sound law which have elicited warm enjoyed .... 60

commendations from all quarters. 54 Rantoul referred to Woodbury's as "the One indication of Justice Woodbury's prophetic eye of genius," and ironically stated popularity with his peers is the admiration ex­ that although the Justice was now in his tomb pressed in obituaries, following his Septem- he would be "leaving behind him a memory 136 JOURNAL 1998, VOL. 2

in the counsels of the party to which he was attached, and which will cause his name to be remembered in the po­ litical history of our country . Without possessing the highest order of intellect, Judge Woodbury had a large share of native shrewdness and unfailing quickness of political fore­ cast, a very retentive memory, and a more than common power of logical reasoning .... His style of writing was turgid and obscure, doing little justice 10 his acknowledged clear­ ness of intellect. (Emphasis added).6J

It is interesting to note the explicit criti­ cism of Justice Woodbury's writing style, which seems to be the main comment about Woodbury in many of today's accounts (see text below). It is also significant that the Tri­

When Thomas W. Dorr led an attempt to es­ bune, as a leading abolitionist newspaper, ac­ tablish a rival reform government in Rhode Is­ knowledged its political differences with land in 1842, he and his supporters tried un­ Woodbury. 64 It would appear that Woodbury's successfully to seize the state government's arsenal. Dorr's case eventually came before positivist jurisprudence, as applied to the sla­ the Supreme Court, and Chief Justice Taney very issues of his time, was a significant, if held that the issue of which state government not always explicit, factor in the decline of was legitimate was a political issue and out­ side the Supreme Court's jurisdiction. Justice his reputation over the years. Woodbury dissented, however, because he Reflective histories of Justice found Rhode Island's reliance on the imposi­ Woodbury's tenure on the Court, years after tion of martial law to squelch the rebellion to be unconstitutional. his death, indicate a renewed respect for his judicial contribution. In 1894, Charles Bell embalmed in the respect and affection of his published his invaluable reference work The fellow-men and the gratitude of his country."61 Bench and The Bar of New Hampshire65 Another obituary was more tempered in The sketch of Woodbury shows that he was its praise. It appeared in the Nellv York Tribune, still held in high esteem. Most significantly, run by the very partisan Horace Greeley, who Bell wrote, "The mental characteristics of frequently stood on the opposite side of the Judge Woodbury fitted him peculiarly to ad­ political fence from Woodbury.62 Tn fact, one minister the law." can perceive the seeds of some later criticism of Justice Woodbury: His calmness and poise, never stirred by feeling or bias; his even-tempered Although greatly differing from patience and desire to do exact jus­ him on vital points of national poli­ tice; his thoroughness, and detenni­ tics, we can not fail to recognize the nation to go to the bottom of the case energy of mind and steadfastness of before him, - these were qualities not character which gave him a high place only to make him a model judge, but A REPUTATIONAL STUDY 137

also, which is perhaps next in impor­ adds, in his own words, that Woodbury's " ... tance, to be recognized as such by the judicial opinions were often enormously community, and gave him his firm long."73 Swisher does at least hint at hold upon their confidence.66 Woodbury's influence in the seminal Cooley

case by stating u ••• on the subject ofthe com­ Charles Warren, who in his 1922 classic merce power Justice Curtis' position re­ The Supreme Court in United States His­ sembled that of Justice Woodbury as ex­ tory evidenced high regard for Woodbury as a pressed in the License Cases . ..."74 judge, quoted earlier laudatory descriptions,67 Professor David P. Currie in his The Con­ and only displayed reservations about his writ­ stitution in the Supreme Court: The First ing style. For example, Warren quoted a Hundred Years 1789-1880, quickly dis­ roughly contemporary source published missed Woodbury in the following manner: shortly after Woodbury's death: "Woodbury stayed only briefly and had little impact; he was unusually long-winded and rela­ He [Woodbury] has great talent for tively state-oriented in admiralty and contract cases."75 research, and his opinions are crowded with its results. As a In The Oxford Companion to the Su­ reasoner, he is cogent and accurate preme Court of the United States, published but not concise ... His decisions in 1992, it is interesting to note that would be the better for pruning and Woodbury's opinions in Jones v. Van Zandt thinning, but the growth is deeprooted and even in the Passenger Cases are ascribed and vigorous 68 to an enthusiasm for slavery, which the record does not support.76 Woodbury's seminal con­ tribution to the Cooley Doctrine is not men­ Furthermore, Warren accurately gave tioned. The relatively short entry concludes Woodbury credit for first developing the Com­ that Woodbury "possessed an acute legal mind, merce Clause "Cooley Doctrine," discussed but his brief tenure and his tendency to write above: "The doctrine, so laid down [by Justice overly long, convoluted opinions, compro­ Curtis] for the control of commerce was re­ mised his sojourn on the Supreme Court."77 ally the adoption of a rule first stated by a Professor Bernard Schwartz reached strong Democrat, Judge Woodbury, in the Pas­ much the same conclusion in his 1993 vol­ senger Cases."69 ume, Main Currents in American Legal As we approach the present, mention of Thought: Woodbury in the literature becomes much more brief and negative and often centers on his writing style. For example, in his 1964 bi­ Yet most of the outstanding judges ography of Woodbury's colleague, Justice toward mid-century were, like Story, Daniel, John Frank said of Daniel's weak style: holdovers from an earlier period. As "at his worst he was not as bad as Woodbury."7o they left the bench, they were re­ Professor Carl B. Swisher, in his Holmes placed by men plainly not of the Devise volume, The Taney Period 1836-64 same caliber, e.g., the replacement published in 1974, sums up Woodbury's pro­ of Story himself Levi Woodbwy fessional work with a quotation that originated in 1845. Except for Taney and Ben­ in Greeley'S New York Tribune obituary of the jamin R. Curtis, almost no one el­ Justice: 71 "His style of writing was turgid and evated to the bench between obscure, doing little justice to his acknowl­ Marshall s death and the Civil War edged clearness of intellect."72 Swisher then comes to mind as having made any 138 JOURNAL 1998, VOL. 2

real contribution to jurisprudence. 78 The main di stinction seems to be that Curtis (Emphasis added). dissented in the infamous pro-slavery opinion

in Dred Scott v. Sandford. 8) In present-day legal culture, the law review Similarly, Justices Wiley Rutledge and has become the most influential medium for Abe Fortas served relatively short tenns on the legal scholar. With the exception of the re­ the Court- six and four years, respectively. cent study by one of the present authors and Both of these men, like Curtis, but unlike his colleagues, not a single law review article Woodbury, have been rated as "near greats" in about Levi Woodbury or his jurisprudence has the Blaustein and Mersky surveys84 The key appeared.79 It is significant that Professor Rob­ again seems to be the liberal opinions these ert M. Spector, in a 1967 article on judicial "near greats" have authored and the high value biography in the American Journal of Legal of such in today's legal culture.8S In this re­ History, mentioned Woodbury as an over­ gard, Professor Laura Kalman, a lawyer, his­ looked justice who is particularly worthy of torian, and self-described political and legal biographical treatment. He wrote: "The source liberal,86 writes revealingly of Fortas, the sub­ material is extensive on Woodbury, and he is ject of her own very favorable biographyY deserving (and capable of) a solid biogra­ phy." 80 Fortas sometimes wrote draft opin­ Thus we see Levi Woodbury's judicial ions without legal citations in them, reputation progress from contemporary emi­ then ordered his clerks to 'decorate' nence to present-day obscurity. It is clear from them with the appropriate legalese. the evidence that his short tenure on the Su­ That did not mean that Fortas knew preme Court did not work in favor of a the supporting law was there. It meant longlasting fame. In addition, it is evident that that he considered law indetenninate Woodbury's dense and inelegant writing style and did not care about it much at all. as much as anything else has harmed his repu­ In his hands, realism licensed crude tation over the years. Perhaps with the passage instrumentalism. As one of Fortas' oftime, many law students, and possibly some biographers, I found his cavalier atti­ lawyers and legal scholars, have been daunted tude toward the rule of law surpris­ from even a cursory read of such turgid nine­ ing. Since I usually liked the results teenth-century prose. he reached and since historians ex­ Lurking beneath the surface in the aboli­ plain more than they di agnose, how­ tionist New York Tribune obituary, but becom­ ever, his approach and the Warren ing more explicit later on, is the pro-slavery Court's activism posed no political characterization of Levi Woodbury. The fact or professional problems for me.S8 that Woodbury, as a legal positivist, upheld laws that were conducive to slavery, does not help his reputation in a modem society that Indeed, with respect to the post-1937 rejects all indicia of that evil institution. It is Court, and especially the Warren era, the lib­ relevant that Woodbury's successor, Justice eral legal and political establishment was so Benjamin Curtis, spent nearly the same short enamored ofjudicial results that "no one cared" time on the Supreme Court and apparently that the Court's use of history was at times adopted Woodbury's reasoning when writing " inept and perverted."89 his Cooley opinion,s, but nevertheless has a Chief Justice John Marshall, who has en­ very high modem reputation, and has even been joyed much continuing coverage and high es­ rated as "near great," compared to Woodbury's teem from many of today's scholars is a spe­ "average," in a major poll of legal scholars82 cial case, because the ease of misinterpreting A REPUTATIONAL STUDY 139 his jurisprudence has obviated the need to nore him like Woodbury. Specifically, Marshall's subtle judicial method, combined with his holdings in favor of strong central government, have made him easy prey for the liberals. They have served their cause by misconstruing this early nineteenth century judge in their own twentieth-century image, as a results-oriented, big-government thinker.90 They thusly describe Marshall as a jurist motivated by belief in a strong federal government, who fashioned "his interpretation oflegal rules to fit a substantive outcome that he desired," and who was primarily concerned with reaching constitutional conclusions "to suit the political ends that he cherished."91 In fact, Charles Hobson, who has served as edi­ tor ofthe John Marshall Papers for nearly two decades, has persuasively shown the Great Former President Martin Van Buren (below) Chief Justice to be a principled, although and former Senator Thomas Hart Benton subtle, analogical legal thinker, who was not (above) decided to choose Woodbury as their presidential nominee in 1851, just prior especially concerned about substantive out­ to the Justice's death. Woodbury had previ­ comes, big government ones or otherwise.92 ously served as Secretary of the Treasury un­ It is relevant here that Professor Carl der Van Buren. Swisher has identified a type of reputational phenomenon based on the popularity of out­ comes in political culture, as generally perti­ nent to Supreme Court Justices: The favorable or unfavorable verdict which history renders with respect to a member of the Supreme Court, or perchance its complete neglect of him, may depend upon his possession of, and his instinctive surrender to, an intuitive perception oftrends in the law which will receive majority ap­ proval in the years to come. History, in other words, rewards and punishes judges like men in other walks oflife not only for their brilliance, their in­ dustry, and their integrity but for be­ ing right or wrong with right and wrong being determined by the code of the age of the historian. Here, as in other fie lds furthermore, a single act of "sinfulness" may cloak with obscurity a thick catalog of good deeds. 9J 140 JOURNAL 1998, VOL. 2

There is a somewhat disturbing trend to­ his writing style was somewhat dense, or that ward reevaluating literary and historical he was not explicitly credited in Cooley, and ures according to contemporary political and therefore not adequately covered in subse­ social standards, while ignoring their histori­ sources, should no longer cal context. The authors believe that Justice deter us. Furthermore, Justice Woodbury's Woodbury may be, in part, a victim of this present-day reputational obscurity is neces­ trend, as well as of some scholars' tendency sarily an indicator of a broader obscurity that to repeat published assessments rather than dims our knowledge and understanding of a examine primary sources. The fact that Jus­ whole era in Supreme Court jurisprudence. If tice Woodbury checked his personal opposi­ we are truly to appreciate Supreme Court his­ tion to slavery at the courthouse door in the tory and its implications good or bad - interest of legal positivism should not deter for today's jurisprudence, we must aggres­ us from studying and understanding, if not ad­ sively pursue primary sources in the study of miring, the life and thought of this very influ­ obscure, but important, Justices like Levi ential Justice. Woodbury. This is especially important because the biographical approach to Woodbury, or any *Authors' Note: The authors especially wish Justice, has implications far beyond the story to thank Justice Ruth Bader Ginsburgfor her of one judge's interesting or lackluster career. singular wisdom and her generosity in read­ John Frank accurately observed that "the ing and commenting on drafts of this piece. judge's biography is a peephole int:o an era."94 The authors also want to thank many others The tendency among scholars has been to for their comments and suggestions: Profes­ concentrate their biographical work on a few sor Henry J Abraham, the University of Vir­ justices such as Marshall, Holmes, Brandeis, ginia; Professor Archibald Cox. Harvard Black, Douglas, and Thurgood Marshall whose Law School; John P Frank, Esq., Lewis & careers are congenial to the aforementioned Roca (Phoenix, Arizona); Professor Gerald trend toward reevaluation regarding "correct" Gunther, Stanford Law School; Pearl Gong­ outcomes, to the relative exclusion of a Jus­ Bader, M.D.; Professor R. Kent Newmyer of tice like Woodbury.95 This has resulted in ma­ the University of Connecticut; Professors H. jor gaps in our understanding of the Supreme Douglas Laycock, Sanford V. Levinson, L.A. Court and constitutional law. Indeed, Profes­ (Scot) Powe, Jr., David M. Rabban, and sor Schwartz, in his assertion (above) regard­ Teresa R. Leclerq, The University of Texas ing the dearth of jurisprudential contributions School of Law; and Gwyn Anderson. between Marshall's death and the Civil War, Adrienne Diehl', David Gunn, Keith epitomizes this problem.96 Stiverson, and Michael Widener, The Univer­ This briefanalysis of Woodbury's life, his sity of Texas Jamail Center Legal Research. jurisprudential influence, including his antici­ The authors, however, are solely respon­ pation of future constitutional concerns, the sible for all the opinions expressed in this singularity and prescience of his extrajudicial article. scholarship, and his general impact on con­ temporaries, would seem to indicate that he Endnotes was a Justice of at least "near great" propor­ 97 tions. He is therefore worthy of careful at­ I William D. Bader, Henry 1. Abraham, James B. Staab, tention, in his own right, by scholars and prac­ "The Jurisprudence of Levi Woodbury," 18 Vermont Law titioners. The fact that his jurisprudence (or Review 261 (1994). 2 See ld. at 261-312. its results) does not always comport with our } Frank 0. Gatell, "Levi Woodbury," in 2 The Justices of current trends in outcome-"correctness," that the United States Supreme Court 1789-1978: Their Lives A REPUTATIONAL STUDY 141

and Major Opinions, (Leon Friedman and Fred L. Israel 32M at 231. eds.,) (New York: Chelsea HOllse, 1980) 843. 33 Planters' Bank v. Sharp, 47 U.S. (6 How.) 30.1 (\848);

4 Vincent J Capowski, "The Making of a Jacksonian Demo­ East Hartfimi v. Hanford Bridge Co., 51 U.S. (JO How.) 51 crat: Levi Woodbury, 1789-183" I (1966)( unpublished Ph.D. (1851); Cook v. Moflal, 46 US. (5 How.) 295 (1847) dissertation, Fordham University) 33. (Woodbury, 1, concurring); West River Bridge Co. v. Dix, 5 Supra note 3, at 844. 47 US. (6 How.) 507 ( 1848) (Woodbury, J, concurring);

6 See Supra note I, at 267-276. Butler v. Pennsylvania, 51 US. (10 How.) 402 (1851); 'Charles H. Bell, The Bench and Bar of New Hampshire Townsend v. Jemison, 50 US. (9 How.) 407 (1851); Woodruff (Cambridge, MA The Riverside Press, 1894) 82. v Trapnell,S I US. (10 How.) 190 (1850); Baltimore & SR.R note 4, at 125-128. v Nesbit, 51 U.S. (J 0 How.) 395 (1851). Levi Woodbury, "Message to the Legislamre of New )447 U.S. (6 How.) 301 (1848). Hampshire," in I Writings of Levi Woodbury (Charles )5/d. Woodbury ed.,)(Boston: Little, Brown & Co., 1852) 463. J6 Milton Cantor, "The Taney Court and Era," in 1 Encyclo­ '" Supra note4 J61-167,176. pedia ofthe American Judicial System, Robert.!. Janosik,

I) See at 176, 184. ed., (NY: Charles Scribner's Sons, 1987),61-62. " Robert A Ferguson, Law and Letters in American Cul­ Supra note 34, at 322. ture (Cambridge, MA: Harvard University Press, 1984) 65; )846 U.S. (5 How.) 504 (1847); 48 U.S. (7 How) 283 (1849). on the influence of Cicero's classical scholarship and life Id on early American legal culture in general, 74-76. 4°46 US. (5 How.) at 624 (Woodbury, Jr. concurring).

U Hon. Robert Rantoul, Jr., Eulogy on the Hon. Levi 4l 53 U.S. (12 How) 299 (1852).

Woodbury (Portsmouth,N.H.: C W Brewster & Son, 1852) 42 Letter from Professor Archibald Cox of Harvard Law 38 School to William D. Bader, Esq., February J 0, 1997, on file J' See generally, Writings of Levi Woodbury, LL.D.: Politi­ with William D. Bader, Esq. cal, Judicial and Literary Vols. I and 3, (Charles L. 4) 48 US. (7 How.) 1(1849). Woodbu ry ed .• )(Boston: Little, Brown & Co., 1852). 44/d. \l See at Vol. 3217-33,233-47. !d. at 46-47;1d. at45.

]c, Supra note 12, at 305-317, 13-240; letter from Professor "fd. at68. Sanford Levinson of the University of Texas at Austin 47 Jd. at 62. School of Law to the authors, October 7, 1997, I, on file 48 fenton S. Martin and Robert U. Goehlert, The U.S. Su­ with the authors preme Court: A Bibliography (Washington, D.C: Con­ Supra note J, at 265. gressional QU3Iterly, 1990) vii-x. "William E. Smith, "Levi Woodbury" in Dumas Malone, Taney, "Chief Justice Taney;' 7 AlballY Law Journal ed., Dictionary ofAmerican Biography, (New York: Charles (January 4, 1873); Taney, Decision in the Merryman Case Scribner's Sons, 1936) VoL XX, 488. Upon the Writ of Habeas Corpus (Philadelphia: John

19 Supra note I, at 265·266, Letter from Thomas Hart Benton Campbell, 1862); Taney, "An Unpublished Letter by Roger to Isaac O. Barnes (September 29, 1851). B. Taney" 32 Maryland Historical Magazine (1937) 32: 20 Arthur M. Schlesinger, Jr. The Age of Jackson (Boston: 225-227; Taney, "Letter of Chief Justice Taney" 12 Mary­ Little, Brown and Company, 1945) 473-474. land Historical Society Proceedings (1873): 445-447; see " Levi Woodbury, "Judiciary of the United States," in also Samuel Tyler, Memoir of Roger Brooke Taney, LLD. Writings of Levi Woodbury, at41, 42. (Baltimore: John Murphy & Co., 1872) J 7-95. 22 Supra note J, at 281. 50 John McLean, Letters of John McLean to John Teesdale,

2J Charles L. Woodbury, "Levi Woodbury," in I Memorial William Salter, ed., (Oberlin, OH: Bibliotheca Sacra, 1899). Biographies oCt he New England Historic Genealogical 51 Supra note 14, at vo L 3, 191-247. Woodbury, as a Justice Society (Boston University Press, 1880) 295, 303. whose Judicial reputation, has completely waned, has ap­

14 H. R. Exec. Doc. No. 27, 23d Cong., 2d Sess. (1834). parently not generated enough interest to make his extraju­ note 3, at 845,850 dicial work more accessible. This inaccessibility has, of ,. Supra note I, at 285. course, only compounded hIS judicial obscurity. "Charles Warren, 2 The Supreme Court in United States 51 Robert G. McCloskey, TheAmerican Supreme Court History, rev. ed., (Boston: Little, Brown & Co., 1926) 145 (Chicago: University of ChIcago Press, 1960) 103-104, (quoting Boston Post, September 13, 1845). 181. 46 U. S. (5 How.) 215 ( 1847). 53 Supra note 14, at vol. 3, 218. /d; Levi Woodbury, "Charge on the Slavery Question," Supra note 27, at 226, n. 2, quoting from Boston Post, in Writings of Levi Woodbury, at 356. February 3, 1846. JQ ld "Proceedings in Relation to the Death of Judge 3l Supra note 28. Woodbury," 53 US. (12 How.) iii, (185 1); Crittenden, a Ken- 142 JOURNAL 1998, VOL. 2

tucky Whig, who supported compromise on slavery, served 78 Bernard Schwartz, Main Currents in American Legal as U.S. Attorney General (1841, 1850-1853) and U.S. Sena­ Thought (Durham: Carolina Academic Press, 1993)199.

tore 1817-1819, 1835-1841, 1842- J 848, J 855-1861 ).In 1828 he 79 George S. Grossman, ed., Legal Research: Historical was nominated by a lame duck President, John Quincy Foundations of the Electronic Age (NY: Oxford Uni­ Adams, for the Supreme Court of the United States, but the versity Press, 1994) 289, 300; Supra note I.

Democrdtic Senate killed the appointment. Encyclopedia of 80 Robert M. Spector, "Judicial Biography and the United theAmerican Constitution, Leonard Levy, Kenneth Karst, States Supreme Court," II American Journal ojLegal His­ Dennis Mahoney, eds. (N.Y.: MacMillan Publishing Co., tOI)1, 1, 13 (1967). 1986), Vol. 2, 523. 81 Supra note 41 .

;G Id. 82 Albert P Blaustein and Roy M. Mersk)" The First One 57 Supra note 13. Hundred Justices (Hamden, CT: Archon Books, 1978) 37-

58 Dumas Malone, editor, Dictionary of American Biogra­ 38.

phy (New York: Charles Scribner'S Sons, 1935) Vol. xv, 38 1- 8) 60 U.S. 9 How. 393 (1857). 382. 84 Supra note 86.

59 Donald B. Cole, Jacksonian Democracy in New Hamp­ s; See generally, Laura Kalman, The Strange Career of shire 1800-1851 (Cambridge: Harvard University Press, Legal Liberalism (New Haven: Yale University Press, 1996).

1970) 236. 86 Jd. at9 and 231.

W Supra note 13, at 30-31. 87 Laura Kalman, Abe Fortas: A Biography (New Haven: 61/d. at 35, at 33. Yale University Press, 1990).

62 "Greeley stamped it [Th e New York 1hbune] with his BR Supra note 85, at 46. individual and then hi ghly rddical views," supra note 61, at " !d. at 70; Id. at 70 quoting Charles A. Miller, The Su­ Vol. VII, 529. Specifically, these views were of the extreme preme Court and tbe Uses of History (Cambridge, MA: abolitionist variety. Supra note 61, at Vol. VII, 530. Harvard University Press, 1969) 6.

6) " Death of Judge Woodbury," New York Tribune, Sep­ 90 See, for example, Thomas C. Shevory, John Marshall's tember 6, 1851, at I . Law: Interpretation, Ideology, and Interest (Westport, CT:

64 Supra note 62. Greenwood Press, 1994); William M. Wiecek, Liberty Un­

65 Supra note 7. der Law: The Supreme Court in American Life (Balti­ 66 1d. at 83. more: Johns Hopkins University Press, 1988) 32-33; David 67 Supra note 54. P. Currie, The Constitution in the Supreme Court:, The "Supra note 27, at Vol. IJ , 203. First Hundred Years, 1789-1888 (Chicago: University of

69 Jd. at 238; see The Passenger Cases, 48 U.S. (7 How.) 283 Chicago Press, 1985) 89,196. at 557-559 (Woodbury, 1., dissenting). 91 /d. Shevory at 147 and 52.

70 John P Frank, Justice Daniel Dissenting (Cambridge: 92 See generally, Charles F. Hobson, The Great Chief Jus­ Harvard University Press, 1964) 274. tice: John Marshall and the Rule of Law (Lawrence, KN:

71 Carl B. Swisher, OliverWendeU Holmes Devise History University Press of Kansas, 1996).

of the Supreme Court of the United States: The Taney 9J Carl B. Swisher, "The Judge in Historical Perspective," 24 Period 1836-64 (NY: Macmillan Publishing Co., Inc., 1974). Indiana Law Journal 381 , 382 (1949).

72 Id. at p. 237. 94 John P. Frarlk, "I ngredients of Judicial Biography," 24

7l /d. Indiana La II' Journal 374, 375 (1949).

MId. at 405. 95 E.g., G. Edward White, 'The Canonization of Holmes and

7\ David P. Currie, The Constitution in the Supreme Court: Brandeis: Epistemology and Judicial Reputations," 70 New The First Hundred Years, 1789-1888 (Chicago: Univer­ York University Law Review, 576-621 (1995); FeliK Frank­ sity of Chicago Press, 1985) 280. furter wrote: "About most of the Justices we have only

76 Robert M. Ireland, " Levi Woodbury" in The Oxford mortuary estimates" quoted in Charles Fairman, "The Writ­ Companion to the Supreme Court of the United States ing of Judicial Biography -- A Symposium ," 24 Indiana Kermit Hall, ed., (N.Y.: Oxford University Press, 1992) LawJoumai, 363, 367 (1949). 937. 96 Supra note 78.

77/d. 97 Supra note 82. Beyond the Bottom Line: The Value of Judicial Biography

Melvin I. Urofsky

There is properly no history; only doctrines; one can hardly pick up a copy of any biography. law review without finding a study of "Justice X and the Development of the Law on Y." More­ -Walt Whitman over, studies of particular Justices have been The market in judicial biography appears around for much of this century, starting with to be booming, and in recent years we have the hagiographic multivolume The Life of witnessed not only the publication of long­ John Marshall by Albert 1. Beveridge.s T~en awaited biographies of Learned Hand and in 1946 modern judicial biography began when Hugo L. Black,1 but also impressive studies Alpheus Thomas Mason published Brandeis: of the first John Marshall Harlan, Abe Fortas, A Free Man's Life, and followed that up with Thurgood Marshall, and Lewis F. Poweil,2 The studies of William Howard Taft and Harlan interest in Holmes and Brandeis,3 despite the Fiske Stone.6 already extensive bookshelf space devoted to There are several reasons for the expo­ them, seems to increase rather than wane. The nential increase in the number of judicial bi­ promised study of William 1. Brennan, Jr., by ographies. Biography and autobiography have Stephen 1. Wermiel, is eagerly anticipated by always been popular forms of writing; the pub­ legal scholars. Even current members of the lic seems to want to know as much as possible Supreme Court of the United States are the about the powerful and famous, as witnessed subject of biographical studies4 by the recent best-selling status of Katherine Why so much activity in this area at this Graham's memoirs.7 Judges, however, have al­ time? There have always been studies of par­ ways been a reticent bunch, and we do not get ticular judges in relation to particular cases or much in the way of published reminiscence 144 JOURI\IAl 1998, VOL 2 from them. Stephen 1. Field did publish a mem­ tiently securing unanimity in Brown v. Board oir, but it dealt with his years in gold-rush Cal i­ of Education (1954) is well-known, and a per­ fornia and not with his tenure on the High fect ill ustration of how individual Justices can Court.s Charles Evans Hughes left a biographi­ affect the nation's affairs. Moreover, because cal fragment in his manuscripts that was not of decisions like Brown. Roe v. Wade, and the published until many years after his death. 9 In apportiorunent cases, we no longer consider the fact, the only Justice to discuss somewhat judiciary a less significant player than the ex­ openly his years on the Supreme Court, includ­ ecutive and the legislature in shaping the ing his colleagues and important cases, has nation's history. been the maverick William O. Douglas. lo From a scholar's viewpoint, perhaps the While the volumes sold well, his colleagues most important reason for the rise in judicial on the Bench frowned on the enterprise. biography is the material with which we now A second reason for the growth in inter­ work. There are no major paper collections est is that the American people, especially for the Justices of the eighteenth and nine­ since 1937, are far more aware of the impor­ teenth centuries, perhaps in part because they tance of the Court's rulings in their lives as believed the inner workings of the Court well as how individual Justices can affect should not be open to public scrutiny, that the those decisions. The story of Earl Warren pa- work of the Court should be found in, and only

In Alpheus Thomas Mason's Harlan Fiske Stone: Pillar of Law, published in 1956, the inner work­ ings of the Stone Court-including the fractious battles between Justices Hugo l. Black, William O. Douglas, and Felix Frankfurter-are laid bare. Distressed by Mason's depiction, Justice Frankfurter (pictured with his wife, Marion) felt vindicated for having prevented Mason from using Justice Louis D. Brandeis' papers for an earlier biography of Frankfurter's colleague and friend. VALUE OF JUDICIAL BIOGRAPHY 145 in, its published opinions. Then came Holmes treated in a favorable light, the fact remains and Brandeis, whose papers, especially the that Mason's book is the standard biographical latter's, opened a window into the inner sanc­ study of Stone, and whatever its faults, stands tum. Of course, thanks to Felix Frankfurter, as an enormous barrier to anyone contemplat­ these collections did not become available un­ ing a new study. til the 1980s, but the glimpses scholars received Those of us who either write judicial bi­ in Mark DeWolfe Howe's biographical vol­ ography or, for personal or professional rea­ umes of the younger Holmes, II and the analy­ sons read these volumes, are living in a won­ sis of Brandeis' unpublished opinions by derful time, when nearly every year brings one Alexander Bickel,12 whetted the appetites of the or more significant studies to our desks. But academic community. then one has to ask, "What do these studies Alpheus Thomas Mason, whom Brandeis tell us? What do we know after having read chose to write his biography, had access to the these volumes that we did not know before? vast array of pre-Court papers deposited in the And in terms of judicial analysis, do these vol­ University of Louisville Law Library. But umes add one scintilla to our understanding Frankfurter, who objected to Mason (for rea­ of major legal doctrines? Does knowing why l sons that are far from clear ), prevented Ma­ Holmes changed his mind between Schenck son from using the Court papers that Brandeis, and Abrams matter at all in understanding the at Frankfurter's urging, had deposited at the 'clear-and-present-danger' standard?" Harvard Law School under Frankfurter's con­ For those who work in this field, these trol. As a result, Mason's Brandeis, while are important questions, ones that we often ask quite strong up through the Court fight, is ourselves. In fact, all scholars at one time or pedestrian in its coverage of the Court years. another wonder if what they are doing has any One can see the reformer at work in Mason's extrinsic value, whether it makes any differ­ early chapters, but only the public face, the ence. For the most part we believe that even if U.S. Reports face, in that part of the book de­ our particular article or book is not in the voted to Brandeis' tenure on the Bench. Pulitzer prize category, at the least we are cre­ We get quite a different story with ating the building blocks from which other Mason's Harlan Fiske Stone: Pillar of the scholars will one day erect a proper edifice. Law, published in 1956. Frankfurter, then still a member of the Court, attacked the work and * * * * * saw it as a justification for having kept Mason out of the Brandeis materials. With access to The value of judicial biography was the the docket files, the internal memoranda, and theme of a major conference organized by Stone's personal correspondence, Mason re­ Norman Dorsen and Christopher L. Eisgruber constructed the inner workings of the Court at the New York University Law School in May during Stone's tenure, including the fractious 1995. It brought together some of the leading years when he occupied the center chair and judicial scholars in the country, and the vari­ had to deal with prima donnas such as Hugo ous papers and commentaries explored not Black, William O. Douglas, and of course, only the nature of judicial biography but its Frankfurter himself. value as well. 15 1. Woodford Howard, Jr., has described In the conference's opening paper it came Mason's Stone as the first modern judicial bi­ as something of a shock when Judge Richard ography, in that he tied together analysis of A. Posner called into question the whole value opinions and doctrine with personal history.14 of judicial biography as an academic enter­ While there has been some criticism that prise, and suggested that scholarly time could Stone manipulated Mason so that he wound up be better spent on other ventures. One of the 146 JOURNAL 1998, VOL. 2 leading lights of the Chicago school oflaw and nothing we know about the judge will help us economics, Posner suggested that "[i]n the time to understand how he or she reached a particu­ that Gerald Gunther took to write his SIS-page lar conclusion. "The spark of genius eludes the biography of Learned Hand ... he might have biographer's grasp."19 written twenty (or probably more) law review Posner, it should be added, does not want articles averaging forty pages, and conceivably us to throw up our hands in despair and simply the contribution to legal scholarship would have ignore judges; rather he suggests alternative been greater." 16 genres, such as brief Jives, studies that con­ Posner admi tted that there were other fine themselves to particular momentous years considerations in taking on the task of a judi­ or events, and interpretive essays. Indeed, this cial biography. "If Gunther got a kick out of is exactly what Posner himself had done in his writing the biography that he would not have study of Benjamin Cardozo; rather than attempt gotten from writing its weight in articles, as he a full-scale biography, he wrote a sparkling es­ must have thought when he embarked, this is say on why Cardozo enjoyed such a high repu­ something to be added into the cost-benefit cal­ tation among legal scholars and fellow ju­ culation."'7 rists.20 Of all the considerations that have gone In the discussion, I raised the question of into choosing to write a particular book or ar­ whether "the life affects the lawmaking," and ticle, "getting a kick" has certainly not figured suggested that "at least in the lives of Brandeis, high in my own "cost-benefit calculations," nor William O. Douglas, Felix Frankfurter, Earl has it for the colleagues with whom I have dis­ Warren, Roger Taney, and both Marshalls, it is cussed this matter. There is, of course, the de­ absolutely impossible to understand their le­ sire to explore and understand a particular is­ gal work without understanding the lives both sue or life, as well as the satisfaction of doing before and off the Court. To try to separate what one considers a good job, perhaps rein­ their judicial work from their lives, I think, is forced by positive reviews, strong sales, or just impossible." To my initial amazement, bestowal of prizes. Most of us, however, hope Posner responded that of course you could un­ that there will be a contribution to scholar­ derstand judicial opinions "without knowing ship, a few more bricks in the house of learn­ anything about [the judges'] lives; you can un­ ing. But the gravamen of Posner's charge is derstand Shakespeare or the Iliad without that the enterprise is not worth doing. knowing anything about the authors."21 We study great men and women to Jearn Putting aside for the moment the ques­ more about them, Posner notes, and this usu­ tion of whether any biography can catch the ally takes one of four forms-ideological, in essence of a person's life, this particular ex­ which the book reinforces certain beliefs; edi­ change highlights one of the critical differ­ fying, to provide modeJ s or antimodels of how ences between lawyer's history and historian's we should live our own lives; scientific, which history. Earlier in his talk Posner had said that attempt to explain why the subject acted as he "nothing in a lawyer's or legal scholar's train­ or she did; and essential, in which the writer ing and expelience equips him to write biog­ tries to get at the core being of the subject. '8 raphy." The primary use of judicial biography, All of them, however, fail , because "[t]he prin­ he went on to say, is "to illuminate the judicial cipal lesson that I take from the best, the most process," and by implication, only lawyers or thorough, the most impartial modem biogra­ judges had the necessary knowledge of the law phies about creative people whether in the arts to undertake that task, a task, however, for or sciences is precisely that of the disconnec­ which they were ill-fitted. tion of achievement from self." Since judging In essence, all you really needed to know is, in Posner's view, a creative process, then about any judicial opinion was what it said, the VALUE OF JUDICIAL BIOGRAPHY 147 bottom line of what the law is as a result of scheme. Moreover, there was nowhere in the that decision. Here one turns to a problem that opinion any reference to the Depression, or 1 and other historians who have gone to law the fact that the Agricultural Adjustment Act school after having taken our history degrees had been a creative and well-received effort have often noted, the ahistorical outlook of by the Roosevelt administration to alleviate practically the entire law school curriculum. farmers ' problems of over-production and low prices. To my amazement he responded that Law schools, even when they have histo­ the Depression had no relevance to the deci­ rians on the faculty, do not require legal his­ sion, that all that mattered was the result and tory as part of their curricula. They see their the analysis used. One can hardly imagine a job as training lawyers to know what the law is discussion of Butler in a constitutional his­ now. Clients do not want a disquisition on the tory course or a constitutional law course historical reasons why they can or cannot do taught by a political scientist that would have something, especially with the meter ticking ignored these external considerations. along at $200 or $300 an hour. They want the Judge Posner is far too sophisticated to bottom line, and much of law school educa­ assume that the Depression and the govern­ tion aims at that line. It is presentist- what is ment response to it had nothing to do with the the current law-and if you get some teachers Robert's opinion in Butler. But in many ways, who add a bit of historical information, that's his attack on the value of judicial biography nice but not crucial. Legal history courses are stems from the same basic reasoning. All a usually electives for those so minded or for lawyer needs to know is the bottom line-what third-year students needing a writing course does the law now say as a result of this par­ or a way to fill in their schedule until they ticular opinion. The fact that the opinion may graduate. When was the last time one saw a have been decided because of a Justice's long­ history question on the bar exam? standIng personal views (for example, Taney's The problem is that we historians do want views on slavery in Dred Scott or Brandeis' to know more than just the bottom line, and hosti lity to chain stores in Liggett v. Lee) or we believe that it makes an important differ­ because of the necessities of a nation at war ence in understanding the opinion. In the con­ (such as the World War II decisions regarding stitutional law course I took at the University Japanese relocation and the military trial of ofYirginia Law School the instructor was ana­ Nazi saboteurs) or because of growing social lyzing methods of analysis that judges used to pressure for change (such as the civil rights determine the law. He referred to Justice Rob­ decisions of the Warren Court or the gender erts' famous T-square comment in United cases of the Burger Court) by this line of rea­ States v. Butler in which he declared that the soning is irrelevant. If one takes this view, then only duty ajudge had in such cases was "to lay Judge Posner has it right-there is no value to the Article of the Constitution which is in­ judicial biography-or indeed any other his­ voked beside the statute which is challenged tory-since in the end it does not add one whit and to decide whether the latter squares with to our knowledge of the bottom line. the former." 22 The professor went on to say As an historian, I, of course, reject this this was a perfectly legitimate manner of con­ view, because I believe it does matter that we stitutional exegesis. know more about the judicial process than the My hand shot up and I rather heatedly bottom line. Ours is a nation of laws, and de­ noted that first of all, Roberts had done ex­ spite Bismarck's famous witticism that one actly the opposite of what he professed to do, should not inquire too closely into what goes since a long line of Commerce Clause and tax into making sausage or law, it is important that precedents easily supported the government we know how the interaction of various so- 148 JOURNAL 1998, VOL. 2 cial, economic, and political developments re­ House, helping their friend and patron, sults in changing the law. One would never, I Franklin D. Roosevelt, draft speeches and even believe, suggest that one could understand a legislation26 As Laura Kalman has shown in major piece of legislation merely by reading her biography of Abe Fortas, the extent of its provisions. One needs legislative history, a Fortas's involvement in politics may have knowledge of the political pressures at work played less of a role in his downfall than the on the bill, the effect that public opinion had fact of Lyndon Johnson's unpopularity and in moving the process forward, what pressure Fortas's identification with the liberal wing of groups supported and opposed the bill, and a the Warren Court.27 Holmes told us over a cen­ myriad of other considerations.23 tury ago that the life of the law has been expe­ Similarly, when a President undertakes a rience, not logic, and ever since the Realists major initiative, such as Nixon's opening to wrote more than seven decades ago we have China, no one would be foolish enough to say known that a number of non-legal factors have that all we need to know is that the two coun­ influenced why and how judges made law. tries have now signed an agreement, and the It is beyond cavil that upbringing, life ex­ sum total of useful knowledge is encapsulated periences, worldly and personal successes, and in the words of that agreement. One would failures all figure into how people act. If at want to know how the China gambit fit into times we rise above these considerations, for the broader scheme of world affairs that Nixon the most part our lives form a pattern, and it is and Kissinger had developed-indeed, one the job of biographers to seek out that pattern. would want to know quite a bit about Henry This brings us to the second and more diffi­ Kissinger and his role in these events; one cult question-Can a biographer really explain would also want to know how this affected U.S. why a Justice acts in a certain way? Judge relations with Taiwan, how the country re­ Posner is far from alone in doubting that this sponded, what political fallout the administra­ can be done. tion had to contend with, and how America's allies responded.24 * * * * * Why, then, should we be content with just the black-letter, bottom line of a judicial de­ First, let me admit that in many areas, all cision when we will not settle for that when the biographer can do is describe. We know, dealing with legislative or executive activi­ for example, how Holmes and Brandeis ties? The answer, some would say, is that the worked since we have the historical/anecdotal President and Congress are the political evidence of their clerks. Holmes worked at a branches of the government, and that in poli­ standing desk,since, he claimed, nothing tends tics we need to know all of the surrounding toward brevity more than stiffness in the knees, information. The Court, on the other hand, and he had a passion for keeping his opinions deals with the law, and it is only the law that no more than two printed pages long. matters. Brandeis' clerks would labor late at night to The last twenty or so years of legal schol­ finish a research assignment, and then show arship should have dispelled this simplistic up at five or six in the morning to slip the ma­ view of how courts function. We know, for ex­ terial under the door of the Justice's study, only ample, from Bruce Murphy's study of to feel the papers pulled through by a hand on Brandeis and Frankfurter's extrajudicial activi­ the other side. This is marvelous material about ties how much they and other Justices have how the two men worked, but it tells us little been involved in the political process.2) Dur­ about how they thought. ing World War II, Frarlk.furter, Douglas, and This, of course, as Judge Posner pointed Robert H. Jackson regularly visited the White out, is a complaint about every biography of a VALUE OF JUDICIAL BIOGRAPHY 149

"it sort of danced around in my mind." Fair enough. We may not learn how the internal mechanism actuall y functions, bu t there is a great gulf between saying that we can never unlock the secrets of the creative process and that judicial biography is a waste of time because all that matters is the final product, the printed decision. One can read Hamlet or the Iliad without knowing anything about Shakespeare or Homer; one can read the Virginia Military Institution case28 without knowing anything about Ruth Bader Ginsburg. But I believe that history in general, and judicial biography in particular, can give us a far more rounded understanding not only of palticular judges, but of the Supreme Court and the judicial function in the United States. Let me take but a few examples to show how knowledge of the Justices can enlarge our un­ derstanding of the past. creative person. In the case of the great ge­ In 1940 the Court handed down its deci­ niuses in our history, such as a Michelangelo sion in Minersville School District v. Gobitis. or a Shakespeare or a Mozart, we have gath­ in which an 8-1 majority held that the state ered a great deal of biographical infonnation could require school children to salute the flag, about them and have analyzed their art exten­ sively, but we still know little about their cre­ ative processes, how they each magnified and transformed their particular art. Even when wetalk to a modern writer or artist about how they come up with certain story ideas or artis­ tic concepts, they can often do little but stam­ mer that it "SOlt of just came" to them or that

Justice Oliver Wendell Holmes, Jr., defended German immigrant Rosika Schwimmer's pacifism in a high-minded manner when she was refused citizenship for her condemnation of World War I. But Justice Felix Frankfurter, who was born abroad and who, as a college student, witnessed with great excitement the naturalization of his father, saw his patriotic duty differently. When William Schneiderman (above) had his citzenship revoked in 1939 because of his ties to the Communist Party, Frankfurter explained at the Justices' Confer­ ence why he supported his government's ac­ tions against Schneiderman: "It is well-known that a convert is more zealous than one born to the faith." 150 JOURNAL 1998, VOl. 2 even though the act violated the religious be­ had little sympathy with those who, as he saw liefs of Jehovah's Witnesses. 29 Three years it, refused to meet their civic obligations. later, the Court reversed itself completely, and During oral argument of the Gobilis case he again by an 8-1 vote, held that the required sa­ had passed a note to Frank Murphy question­ lute violated the First Amendment. What had ing whether the framers of the Bill of happened? What would the bottom line read­ "would have thought that a requirement to sa­ ers make of this-the law in 1940 was no lute the flag violates the protection of ' the free longer the law in 19437 If one is to understand exercise of religion'?,,33 what had happened, the significance of these At about the time of the second flag sa­ cases, and in fact the law itself, then one has lute case, the Court heard a case in which the to understand the environment in which the government tried to denaturalize William cases were heard and the personal stoties of Schneiderman, a man who was obviously an the men who judged those cases. ideal citizen except for the fact that he sym­ The question of whether a state could pathized with the Communist Party.34 At the compel school children to salute the Ameri­ Conference, Frankfurter explained why he sup­ can flag had been an issue in twenty states be­ ported the government's efforts to strip tween 1935 and 1940, and had been the sub­ Schneiderman of his citizenship. The case, he ject of major litigation in seven. Prior to began, "arouses in me feelings that could not Gobitis the High Court had four times upheld be entertained by anyone else around this state eourt decisions validating compulsory table. It is well-known that a convert is more flag salute laws. Jehovah's Witnesses objected zealous than one born to the faith. None of to the salute because of their literal reading you has the experience that I have had with ref­ of Exodus 20:4-5, and equated the flag salute erence to American citizenship." He had been with bowing down to graven images. in college when his father received his natu­ Chief Justice Hughes assigned the opin­ ralization papers, "and I can assure you that for ion to Felix Frankfurter, already well-known months preceding, it was a matter of moment as an apostle of judicial restraint, and in draft­ in our fam ily life." For Frankfurter, "Ameri­ ing his opinion he framed the "precise" issue can citizenship implies entering upon a fel ­ in terms of the courts deferring to legislative lowship which binds people together by devo­ wisdom. "To the legislature no less than to tion to certain feelings and ideals summarized courts is committed the guardianship of deeply as a requirement that they be attached to the cherished liberties."31 Privately, he com­ principles of the Constitution."J5 mented that he believed the opinion would Frankfurter's patriotism, as he noted him­ preach "the true democratic faith of not rely­ self, went further than that of the native-born ing on the Court for the impossible task of American who took it as a matter of course. assuring a ... tolerant democracy," a task that Not for him the high-minded tolerance of the properly belonged to "the people and their rep­ Brahmin Holmes in defending Rosika resentatives."J2 The bottom line, then, is that Schwimmer's pacifism or the intellectual in­ the Court believed religious scruples took sec­ tensity of Brandeis insisting on Anita ond place to the state's desire to inculcate pa­ Whitney's right to utter unpopular ideas,36 triotic values. Rather, Frankfurter held an impassioned sense This does not tell us enough, and espe­ that all who did not feel as strongly about cially does not explain either the Court's turn­ America and its principles were somehow less around or Frankfurter's bitter and impassioned than loyal, and therefore not deserving of the dissent in the second case. A naturalized Constitution's protections. Some scholars, American who always took ideals of citizen­ such as Harry Hirsch and Robert Burt, have ship and patriotism very seriously, Frankfurter developed psychological explanations based VALUE OF JUDICIAL BIOGRAPHY 151 in part on Frankfurter's feelings of being an ness members, the apparent shift in Court sen­ outsider, overly grateful to the nation that took timent, and news of Hitler's "Final Solution" him and his family in, and unwilling to chal­ of the Jewish question in Europe, the Court lenge what he saw as its basic creeds. 37 While accepted another case dealing with the flag sa­ I have some difficulty with their overall use lutes in the October 1942 Term. Both the of psychology, there is no question that one American Bar Association Committee on the cannot understand why Frankfurter backed the Bill of Rights and the American Civil Liber­ government in all of the World War II cases ties Union, a rare tandem, filed amici briefs in (including the Japanese relocation) as well as support of the Witnesses. the Cold War cases (especially Dennis), with­ Stone, who had been the lone dissenter in out taking this background into account. 3S the first flag salute case, assigned the opinion But Frankfurter was not the only member to Jackson, who, although he rarely voted for of the Court, although perhaps the one whose minority rights against a public interest argu­ personal history gives us the clearest indica­ ment, this time joined the liberal bloc. In tors of his vote. If we do want to go beyond Jackson's original draft of the opinion, he re­ the bottom line then we have to note that in ferred to the attacks on the Witnesses, and de­ the time between the two flag salute cases the leted these lines at Chief Justice Stone's sug­ Court's membership changed significantly. The gestion because they "might well give the im­ liberal Wiley Rutledge replaced James E pression that our judgment of the ques­ Byrnes, Jr., and Robert H. Jackson joined the tion was affected by the disorders which had Court when Roosevelt elevated Stone to re­ followed the Gobitis decision. "41 Jackson place Hughes as Chief Justice. More impor­ wrote one of the most eloquent opinions of tantly, three members of the Court who had his judicial career, declaring that "if there is joined Frankfurter in GobWs abandoned him any fixed star in our constitutional constella­ in the subsequent Jehovah's Witnesses tion, it is that no official, high or petty, can cases-Hugo L. Black, Wi ll iam O. Douglas, prescribe what shall be orthodox in poliitcs, and Frank Murphy. nationalism, religion or other matters of opin­ When the Court convened in the fall of ion or force citizens to confess by word or 1940, Douglas told Frankfurter that Black was act their faith therein."42 having second thoughts about the Gobiris de­ Frankfi.lrter entered an impassioned and cision. "Has Black been reading the Constitu­ embittered dissent. Despite the fact that he be­ tion?" Frankfurter asked sarcastically. "No," longed to "the most vilified and persecuted Douglas responded, "he has been reading the minority in history" (one of Frankfurter'S rare newspapers." There Black-and everyone references to his religion), he shared the else-would have noted the Justice Framer's fears that "minorities may disrupt so­ Department's reports that in the weeks follow­ ciety." Frankfurter evidently had a difficult ing the decision, there had been hundreds of time framing his dissent, perhaps, as he told attacks on Witnesses, especially in small Jackson, "because it is credo and not research towns and rural areas, and the pattern would ... the expression of it is so recalcitrant."43 continue for another two years.39 Frankfurter believed his dissent to be an im­ The Witnesses came back before the Court portant document (as it most certainly was to with one case after another, all claiming that him), and it led him to an active extra-judicial the First Amendment's Free Exercise Clause campaign to publicize his views. He sent a protected them from state intervention in the copy to retired Chief Justice Hughes and sug­ pursuit of their particular beliefs, gradually gested to President Roosevelt that a copy be winning over a majority of the Court to their placed in the Hyde Park library. He wrote c1aims.40 In light of the spate of attacks on Wit- friends in the press such as Bruce Bliven of 152 JOURNAL 1998, VOL. 2 the New Republic and Frank Buxton of the public controversies from which the litigation Boston Herald, claiming that both Brandeis developed, and the public opinion of the time and Learned Hand had agreed with his Gobitis all help us to understand the opinion and the opinion.44 law better. If we can better understand Frankfurter in Moreover, the law is more thanjust a black light of the convert's zeal resulting from his letter, more than just a bottom line. Justice Americanization process, can we also discover Antonin Scalia, who, interestingly, does not why Stone dissented in the first case, and why believe in the value of legislative history when Black, Stone, and Murphy came around to his the Court engages in statutory interpretation, view within a year? With Stone the personal has written eloquently on the importance of record is not as clear, but we do know that in the dissent in constitutional law-making. The the late 1930s he began wrestling with the is­ dissent, he says, serves a critical function in a sue of whether individual liberties deserved democratic society and augments, rather than some form of heightened protection under the diminishes, the prestige of the Court. "When Constitution, an idea he first articulated in his history demonstrates that one of the Court's famous Carolene Products footnote. 45 Black decisions has been a truly horrendous mistake, and Douglas also had personal backgrounds it is comforting-and conducive of respect for that made them susceptible to the Free Exer­ the Court-to look back and realize that at cise claim of the Witnesses, and with them, it least some of the Justices saw this danger is a playing out of their later lives and intel­ clearly, and gave voice, often eloquent voice, lectual development that wiJl help us under­ to their concern."46 Scalia pointed out the first stand their actions. Justice Harlan's dissent in Plessy v. Ferguson as weJl as Justice Jackson's dissent in * * * * * Korematsu v. United States47 as examples of dissenting opinions which have eventually pre­ But Judge Posner's question still haunts vailed. us. Now that we know about Frankfurter's zeal­ Scalia could, of course, have listed doz­ ous patriotism, now that we know about the ens of such instances, especially the many dis­ inner divisions ofthe Court, does it make any sents by Holmes and Brandeis in the 1920s, difference? The bottom line remains the same, but the point he makes is that the bottom line or does it? is not enough, and beyond that, may be wrong. The wartime Witness decisions are the So we have to know more, and if we take some­ beginning of a long line of cases that wiJl even­ one like Brandeis we can perhaps better un­ tually flesh out the promise of free exercise derstand why his dissents had such an impact. of religion embodied in the First Amendment. Moreover, I would suggest that only if we While it is certainly legitimate to do a doctri­ study Brandeis' life can we reach this under­ nal analysis of that development, an analysis standing. of the "bottom lines" as it were, I believe we Born of an immigrant German-Jewish learn more and understand more, including the family in Louisville, Brandeis attended the bottom lines, if we have knowledge ofthe men Harvard Law School. After graduating in 1876, and women who pondered these cases and who, he went on to become not only one ofthe most sometimes painfully, came to particular con­ successful lawyers in the country, but also a clusions. Just as analyzing why Congress en­ leading Progressive reformer and friend and acted certain legislation or why a President advisor to Robert M. LaFollette and Woodrow adopted a particular policy helps us to under­ Wilson. The roots of Brandeis' judicial phi­ stand that legislation and policy better, so losophy go back well before 1916, when Wil­ knowing the history ofthe judges involved, the son named him to the Court. He was perhaps VALUE OF JUDICIAL BIOGRAPHY 153 the leading exemplar of so-called "sociologi­ form no measure could succeed without the cal jurisprudence," and when Holmes wrote necessary education of the public, so a law that that "[fJor the rational study of the law the lagged behind the times could never be changed black-letter man may be the man of the present, unless the people understood the need for re­ but the man of the future is the man of statis­ vision. Practically from the time he went on tics and the master of economics," he could to the Bench until his retirement, he sent out a well have had Brandeis in mind.48 steady stream of memos suggesting law re­ In many ways, the fact-laden dissenting view articles to educate the public and the pro­ opinions clearly laying out all the information fession about why a particular Court decision surrounding a case and the reasons for a legis­ was wrong, and he had the satisfaction in his lature adopting a particular law all hearken back own lifetime of seeing many of his dissents to Brandeis' own law practice as well as to his adopted, while others, especially on wiretap­ ground-breaking brief in the landmark case of ping and the right of privacy, would become Muller v. Oregon. 49 Moreover, Brandeis re­ the law of the land in the generation after his mained a reformer on the Court, and by this I death. do not mean his financial support of and en­ If there is one decision that begs to be couragement to Frankfurter in the 1920s and interpreted through the lens of judicial biog­ 1930s. Rather, he believed that just as in re- raphy, it is Brandeis' famous concurrence in

Justice louis D. Brandeis' concurring opinion in Whitney v. California (1927) is best under­ stood by examining the Massachusetts Justice's life and progressive ideals. His concurrence in that First Amendment case laid down the ideological and legal justifications for future free speech decisions. Brandeis is pictured driving his carriage with his wife Alice seated next to him. 154 JOURNAL 1998, VOL. 2

Whitney v. California, which has provided the ming up of all that Brandeis bel ieved in, how intellectual as well as legal justification for his views on the role of the individual to the constitutionally protected freedom of speech state, the duties of citizenship, the proper role in our times.50 Here, as Justice Scalia would of the state all of which he had expounded have noted, is a wrong opinion, one in which in different fora before-all come together the majority completely ignored the meaning in one magnificent whole.54 and purpose of the First Amendment's Speech If one asked Blasi or Strum what the bot­ Clause. Because Anita Whitney's attorneys had tom line of Whitney is, I think they would look not raised specific constitutional claims in the at you with a rather bemused puzzlement. The lower courts, Brandeis (with whom Holmes bottom line, in the way that Judge Posner said agreed) believed he could not dissent; instead we can comprehend ajudicial opinion without he entered a concurrence that completely de­ knowing anything about the author, would be stroyed the majority's reasoning and provided one-dimensional, totally lacking in texture or intellectual and historical justification for ex­ complexity, and meaningless in terms of un­ panding the right of Americans to think as they derstanding the relationship of law to society. please and to say what they think. In the end, this is the task that judicial bi­ To understand this opinion correctly, I ography can do best, to provide the reader, the would resort to two very different types of student, the scholar with the richness of tex­ works, neither of which could be described as ture that is the hal lmark of Jaw. Nearly a hun­ traditional judicial biography even though that dred years ago Brandeis summed up the dif­ is what they are. The first is the brilliant analy­ ference between a simple practitioner of the sis by Professor Vince Blasi, in which, as he law and a lawyer; the former knew the rules later explained, he decided that if he were to and applied them, while the latter understood understand what Brandeis meant, he would have not only the law, but all the facts that surround. to understand the sources from which he The law could only be understood if we knew wrote. So he literally went and read every one not just the bottom line, but how one got there, of the various citations in the Brandeis opin­ what the alternatives were, what choices had ion, not just the case cites but the historical to be made, and the men and women who made and philosophical pieces as well, including the those choices. I, for one, think Gerald Gunther various Greek sources that the Justice used. made the right choice. In doing so Blasi built up an intellectual por­ trait of a man to whom free thought, requiring Endnotes rigorous analysis and the unfettered expres­ 51 sion of ideas, became a civic obligation. I Gerald Gunther, Learned Hand:The Man and the Judge The other source is Philippa Strum's (Knopf, 1994); Roger K. Newman, Hugo Black: A Biogra­ Brandeis: Beyond Progressivism,52 which phy (Pantheon, 1994). is an in-depth examination of some of the is­ 2 Tinsley Yarbrough, Judicial Enigma: The First Justice sues that had first attTacted her to Brandeis, Harlan (Oxford University Press, 1995); Laura Kalman, Abe Fortas:A Biography (Yale University Press, 1990); Mark V and in which she presents one ofthe best over­ Tushnet, Making Constitutional Law: Thurgood Marshall all views of Brandeis and his philosophy.53 The and the Supreme COUI-t, 1961-1991 (Oxford University book ties together the various strands of his Press, 1997); and John Jefliies, Jr., Justice Lewis F. Powell, life, linking his Progressivism, his Zionism, Jr. (Scribner's, 1994). his legal philosophy to his personal philoso­ J See, among many others, G. Edward White,Justice Oliver WendeU Holmes: Law and the Inner Self(Oxford Univer­ phy of how a person ought to live and the re­ sity Press, 1993), and Philippa Strum, Brandeis: Beyond quirements of citizenship. Progressivism (University Press of Kansas, 1993).

She picks up from Blasi, and shows how 4 There have already been severa l books on Justice Brennan, the Whitney opinion is in many ways a sum- including Kim Isaac Eisler, A Justice for All (Simon & VALUE OF JUDICIAL BIOGRAPHY 155

Schuster, J 993) and W Wat Hopkins, Mr. Justice Brennan cago University of Chicago Press, 1990). and Freedom of Expression (Praeger, 1991), Works on cur­ 21 "Transcript [of Discussion]," 70 New York University rent sitting Justices include Donald E. Boles, Mr, Justice Law Review 556,562,572 (1995),

Rehnquist, Judicial Activist (Iowa State University Press, 22 United Stales" Brltler, 297 US, 1,62 (1936),

1987); Sue Davis, Justice Rehnquist and the Constitution 2J See, for ex,lmple, Daniel M, Bemmn, A Bill Becomes A (Princeton University Press, 1989); Nancy Maveety, Jus­ Law: Congress Enacts Civil Rights Legislation, 2d ed, tice Sandra Day O'Connor: Strategist on the Supreme (Macmillan, 1966). Court (Rowan & Littlefield, 1996); and Jane Mayer, Strange 24 Robert Litwak, Detente and the Nixon Doctrine: Ameri­ Justice: The Selling of Clarence Thomas (Houghton can Foreign Policy and the Pursuit of Stability, 1969-1976 Mifflin, 1994), (Cambridge University Press, 1984), and Rlchard C. 5 Albert J Beveridge, The Life of John Ylarshall (4 vols" Thornton, The Nixon-Kissinger Years: Reshaping 1916-1919)- America's Foreign Policy (Paragon House, 1989),

6 AlpheusT Mason, Brandeis: A Free Man's Life (Viking, Brucel\, Murphy, The Brandeis/FrankfurterConnec­ 1946); William Howard Taft: Chief Justice (Simon & tion (Oxford University Press, J 982). Schuster, 1964); and Harlan Fiske Stone: PilIlir ofthe Law 26 Melvin L Urofsky, Division and Discord:The Supreme (Vikmg, 1956), Court under Stone and Vinson, 1941-1953 (University of

7 Katharine Graham, Personal History (Knopf, 1997), South Carolina Press, 1997),47-48

'Stephen 1. Field, Personal Reminiscences of Early Days 2? Kalman, Fortas, 329 ff in California, with Other Sketches (1893), United Slates v. Virginia, 5 I 8 U.S, 5 [5 (1996). 29 9 David 1. Danelski and Joseph S. TuJchin, cds" The Auto­ 3 J 0 U.s. 586 (1940), The fol lowing section is based on my biographical Notes of Charles Evans Hughes (Harvard Urn­ discussion of these cases in Division and Discord, 106-12, versi ty Press, 1973). and the older but stiH useful David R. Manwaring, Render

10 Thc Douglas autobiography consists of three volumes, unto Caesar: The Flag-Salute Controve.-sy (UniverSIty of OrMen and .Mountains (Harper & Brothers, 1950); Go East, Chicago Press, 1962), which examines the cases in the lower Young EarlyYears (Random House, 1974); and courts as well as the High Court

The Court Years, 1939-1975 (Random House, 1980) .10 West Virginia Soard ofEducation ", Samelle, 319 US

'I Mark DeWolfe Howe, Justice Oliver Wendell Holmes: 624(1943).

The Shaping Years, 1841-1870 and Justice Oliver JI 3 10 U.s. at 600,

Wendel! Holmes: The Proving Years, 1870-1882 (Harvard 32 Quoted in AJpheus T. Mason, Security Through Free­ University Press, 1963), In addition, Howe published dom: American Political Thought and Practice (Cornell several volumes and articles of correspondence between University Press, J955),220, men such as Frederick Pollock and Harold Laski, Sidney Fine, Frank Murphy: The WaShington Years Bickel, Unpublished Opinions ofMr.Jus­ (University of Michigan Press, 1984), 185. tice Brandeis: The Supreme Court at Work (Harvard Uni­ Schneiderman I( UnitedSlales, 320 U.S, [9 (1943), versity Press, 1957), "Summary of discussion," Felix Frankfurter Papers, l3 Frankfurter to BrandeIS, 20 February 1940; Brandeis to Harvard Law School Library, Frankfurter,2J February 1940, in Melvin L Urofsky and 36 United Siaies v, Schwimmer, 279 US, 644, 653 (1929) David W Levy, eds" "Half Brother, Half Son": The Let­ (Holmes, J, dissenting); Whitney v, California, 274 US ters of Louis D.Brandeis to Felix Frankfurter (University 357,372 (1927) (BrandeIS, J, concurring), ofOkJahoma Press, 1991),627, is that Frank­ 31 H.N, Hirsch, The Enigma of Felix Frankfurter (Basic furter feared he could not control the independent Mason Books, 198 J); Robert A Burt, Two Jewish Justices: Out­ the way he believed he would be able to influence people casts in the Promised Land (University ofCalifomr3 Press, he personally chose for the task, 1988).

14 J Woodford Howard, Jr., and the Art "For a skillful application of psychological theory, see of Judicial Biography," 8 Constitutional Commentary 41 Richard Danzig, "Justice Frankfllrter's Opinions in the Flag (l991). Salute Cases: Blending Logic and Psychologic in Consti­ is The papers as well as transcripts of the disclIssions are tutional Decisionmaking," 36 Stanford Law Review 675 gathered in "Symposium: National Conference on Judicial (1984). Biography," 70 New York Univenity Law Review485 (1995), Fine, Murphy, 187,

II, Richard A, Posner, "Judicial Biography," 70 New York 40 L",""u:rmlV l'iew Hampshire, 3 15 U.S, 568 (1942); Jones 509 (1995). ", 3 J 6 U.s, 584 (1942); Murdock v, Pennsylvania, 3! 9 US, r05 (J 943); and Martin v, Struthers, 319 US, 14/ (1943), See Edward F Waite, "The Debt of Constitutional 191d. at 507-08, Law to Jehovah's Witnesses," 28 Minnesota Review

20 Richard A, Posner, Cardozo: A Study in Reputation (Chi- 209 (1944), 156 JOURI\IAL 1998, VOL. 2

41 Stone to Jackson, 31 March 1943, Harlan Fiske Stone 48 Oliver Wendell Holmes, "The Path of the Law," in Col­ Papers, Library of Congress. lected Legal Papers (Harcourt Brace, 1920), 167, J 87; for

42 West Vilginia Board a/Education v Barnette, 319 US. Brandeis' legal career see Melvin L Urofsky, A Mind of 624,642 (1943). One Piece: Brandeis and American Reform (Scribner's, "3M at 653 (Frankfurter, 1., dissenting); Frankfurter to Jack­ 1971),ch. ii. son, 4 June 1943, Frankfurter Papers. 49 208 U.S.4J2 (1908). "'Melvin L Urofsky, Felix Frankfurter: .Judicial Restraint 50 274 U.S. 357, 372 (1927) (Brandeis, 1., concuning). and Individual Libel'ties (fwayne, J 991),57. 51 Vincent Blasi, "The First Amendment and the Ideal of 45 United Stales v. Carolene Products Co , 304 US. 144, Civil Courage: The Brandeis Opinion in Whitne), v Califor­ 152-53 (1938). nia," 29 William and Mary Law Review 653 (1988).

46 Antonin Scalia, "The Dissenting Opinion," Journal oj 52 (University Press of Kansas, 1993).

Supreme Court HistOlY 33,35 (1994). 53 Nearly a decade earlier she had written a fo rmal biogra­

47 Plessy v Ferguson, 163 U.S. 537, 552 (1896) (Harlan, J, phy; Philippa Strum, Louis 0, Brandeis: .Justice for the dissenting); Korell/aisu v. United Slates, 323 U.S. 214,242 People (Harvard University Press, 1984).

(1944) (Jackson, 1., dissenting). 54 Brandeis: Beyond Progressivism, esp. 125-31. Judicial Bookshelf

D. Grier Stephenson, Jr.

Study of the Supreme Court today recog­ during the ratification debates, was hostilely nizes two elementary axioms. First, discourse received and precipitated ratification of the first on the Constitution does not proceed very far of only two amendments to the United States before encountering judicial decisions. Sec­ Constitution between adoption of the Bill of ond, analysis of judicial decisions encom­ Rights and the end of the Civil War, a period of passes the Justices who make them. The first seventy-four years. What is sometimes over­ has generally been more open Iy and widely ac­ looked, however, is that ratification of the Elev­ knowledged for a longer time than the second. enth Amendment, "far from impairing the logic Indeed, it has a long pedigree. of that decision, seems rather to confirm it."2 Thus, even prior to Marbury v. Madison,3 the The Constitution Construed Court's construction of the document was be­ Chisholm v. Georgia l is usually remem­ coming equated with the document itself. Ever bered as the Supreme Court's first, ifill-fated, since, the Constitution has been inextricably excursion into constitutional interpretation. linked to what the Supreme Court has said Voting 4 to I, the Justices held the state ofGeor­ about, and done with, the nation 's charter. View­ gia amenable to the jurisdiction of the newly ing the Constitution as ajuridical document­ established national judiciary and suable by a that is, one subject to construction as law in citizen of another state in federal court. Al­ the context of deciding cases-"invokes a though fully consistent with the text ofthe sec­ miracle," announced Professor Edward S. ond section of Article III, the holding, which Corwin. "It supposes a kind of transubstantia­ ran counter to assurances made by Alexander tion whereby the Court's opinion of the Con­ Hamilton, James Madison, and John Marshall stitution becomes the very body and blood of 158 JOURNAL 1998, VOL. 2 the Constitution."4 province of "an elitist enterprise" practiced by There may be no more vivid recent demon­ "Supreme Court Justices and lawyers and con­ stration of this identity between judicial deci­ stitutional law professors" with much of what sions and the Constitution than Thomas they write often "inaccessible and unintelligible Baker's engaging "The Most Wonderful to the average citizen." 'o When the Constitu­

Work .... "5 As most readers will recognize, the tion becomes news, Baker argues that commen­ title derives from the stunning appraisal6 of the tators and columnists do little to instruct citi­ United States Constitution that William zens in how to think about constitutional is­ Gladstone offered in 1878, between the first and sues, being more concerned with telling them second of what would be four terms as British what to think. What passes for constitutional prime minister. As all readers will discover, di scourse is reduced to sound bites, slogans, Baker's volume consists mainly of opinions headlines, and fifteen-second summaries. And from Supreme Court decisions, each selected the picture may even be gloomier: most Ameri­ for the purpose of "educat[ing] the enquiring cans seem to be blissfully unaware of, or unin­ reader about constitutional values and prin­ terested in, constitutional matters, except in the ciples ..." 7 And the number of selected deci­ case of an occasional high-profile, this-really­ sions exactly equals the number of essays com­ affects-me, issue. It is this state of affairs that prising The Federalist. One is hardly surprised, Baker wants to change. then, to read that the book is designed to Of course it is impossible to recreate accu­ "harken[] back to a previous era of our consti­ rately or even to imagine accurately the intel­ tutionallife."8 lectual climate of the founding era. Most prob­ Echoing Gladstone, Baker labels the Con­ ably the publicists on both the federalist and stitution "truly ... an object of wonder," one antifederalist sides in the debate over ratifica­ wOl1hy of study by all citizens, not just acade­ tion of the Constitution were more immediately micians, lawyers, and judges, or others who concerned with telling citizens what to think hold or aspire to public office. "There are no about the proposed plan of government than high priests or secret rituals in our democratic in instructing them how to think about it. They republic," the author writes. Yet study of the were political activists, not dwellers of ivory­ Constitution is not merely desirable but nec­ towers. Still, the political discourse of that time essary. "Ultimately, it is every citizen's re­ seems considerably more sophisticated when sponsibility to understand and to preserve our one places it alongside today's. constitutional form of govemment."9 This is Whatever the failings of professors, jour­ language ofa vintage (small-r) republican who nalists, and the public, Baker generally gives believes that much more than a scattering of high marks tothe Justices of the Supreme Court. civic virtue is essential to the continued health They "consistently have done more of the of the political system. needed civic education in the pages of the "The Most Wonderful Work ..." is there­ United States Reports, and have done it far fore a means to an end: " rational discourse" or better than either the press or the professor­ "a political dialogue engaged in by 'We the ate." 11 Indeed Baker might have said that with People'." Such discourse or dialogue is needed the vast possibilities of the Internet at hand, because "[t]oday's popular constitutional the Justices' opportunity for civic education rhetoric . . . often is sterile, even mindless, by today surpasses anything the nation hitherto comparison to that of the Framers." In con­ has witnessed. Any home or school connected trast to the formative period of American his­ to an Internet service provider has access, at tory when "constitutional law ... was under­ no additional charge, to the resources of a rea­ stood to be the duty and privilege of every sonably complete law library. The country and citizen," the subject has become the peculiar the Court have come a long way since the early THE JUDICIAL BOOKSHELF 159

Justices were said to use their grand jury charges on circuit to teach local citizens about the Constitution.12 This belief in the value of the Supreme Court's civic function explains the author's edi­ torial decision to include only Supreme Court opinions in hi s quest to elucidate "those im­ portant and fundamental principles on which our constitutional republic is based, the shared values of our polity."1 3 The result is salutary: a variegated display of the Constitution and American government as perceived by the Su­ preme Court. The price of that editorial deci­ sion is obvious: the exclusion of other, perhaps equally useful, sources. The eighty-five cases come from all pe­ riods of the Court's history, beginning with Chisholm v. Georgia (1793) and concluding with Romer v. Evans 14 ( 1996), but the empha­ sis is decidedly on the modem Bench. How­ Thomas Baker's new volume on the history of ever, the collection is not intended to yield a the Constitution as seen through selected Su­ preme Court decisions is titled "The Most W on­ constitutional law casebook. Indeed some derful Work ... ". The t itle is derived from the en­ casebook stapl es are noticeably absent. l > The thusiastic praise William Gladstone (above) gave the document in 1878, after the first of his four principal criterion for inclusion seems to have terms as prime minister of Great Britain. been not the hi storical or contemporary sig­ ni ficance of a particular decision but the rela­ cial biography and its kin, the period study. tive value of its opinion(s) as a teaching de­ Without studies on particular Justices, knowl­ vice alongside other worthy candidates com­ edge of the Supreme Court today would be peting for a place among the symbolic eighty­ woefully less than it is. The reason for this five. Neither is the volume a textbook in the should be plain. Biography is a window on the usual sense: the rigors of rededication presum­ Court. The reader perceives not only the de­ ab ly eschew spoonfeeding. Readers will have scription and relation of "the judge's personal­ to dig out most of the truths to be had on their ity, background, and belief system to his con­ own. The author's preface (or introduction) duct on the bench and impact on the law and and the five short essays that precede each of politics of his time,"' 6 as a biographer of Jus­ the five chapters total only fifty-eight of the tice Frank Murphy once observed, but insights volume's 676 pages of text. Nonetheless, even both into the minds and contributions of other readers already entirely familiar with all the Justices and into the decisionmaking process cases may delight in the insights that the au­ and other internal workings of the institution thor shares in those contributions. The result itself. is a vo lu me that is rich in civic potential for Ye t judicial biography as a literary phe­ constitutional neophyte and expert alike. nomenon largely originated onl y in the twen­ tieth century. Thomas Carlyle's remark about biography generally was particularly apt for a The Nineteenth Century Court long time when applied to the Court: "[A] well­ Reflection on the second elementary axiom written life is almost as rare as a well-spent quickly takes one to the importance of judi- one .. .. [T]here are certainly many more men 160 JOURNAL 1998, VOL. 2

whose history deserves to be recorded, than the role of judicial discretion exercised by in­ persons willing and able to record it."17 The dividual Justices, even if it allowed recogni­ few examples from the nineteenth century, tion of the leadership and legal dexterity pro­ while containing valuable source material, vided by figures such as Marshall or Chief Jus­ were, at least as measured by current standards, tice Roger 8. Taney. "Courts are mere instru­ usually (and hopelessly) even more uncritical ments of the law, and can will nothing," than biographies generally from that era of Marshall contended.20 But as the constitu­ other public figures. As biographer and U.S. tional business of the Court swelled and the Senator Albert Beveridge-himself as impact of its constitutional decisions became charmed by his subject as he was suspicious ever more apparent across a wide range of pub­ of his subject's opponents-observed in the lic policy after 1890, so did sensitivity to ju­ Preface to The Life of John Marshall in dicial review and the Court's political role also 1916, "Less is known of Marshall ... than of increase. 21 Pioneers in sociological jurispru­ any of the great Americans .. . . He appears to dence and then legal realism emphasized the us as a gigantic figure looming, indistinctly, discretion allowed each Justice to pick and out of the mists of the past, .. . seemingly with­ choose among competing interpretations and out any of those qualities that make historic policy outcomes. " [N)ever so much as in our personages intelligible to a living world of Ii v­ day," Frankfurter observed in 1932, " . . . has ing men."1 8 As late as 1932, Professor Felix there been such widespread and keen aware­ Frankfurter could observe that the "formal re­ ness of the essentially political functions ex­ moteness of their labors has largely conspired ercised by the Supreme Bench .... [J)udges to consign the Justices to the limbo of imper­ are the Constitution under which we live and sonality. From this fate only Marshall has been move and have our being."22 adequately rescued .... The Court's prestige There has been no turning back. The Su­ and American history both would be gainers preme Court has revealed itself as an institu­ by similar studies of other great judges."19 tion with parallels to the administrative and The presence or absence of biographical political dimensions ofthe presidency, combin­ criticality aside, any bibliography of the Su­ ing its function as the nation's preeminent le­ preme Court seventy-five years ago would have gal institution with the necessity of political fared poorly alongside a bibliography of the choice as it decides cases encrusted with some presidency in terms ofthe number of published of the most divisive issues of the day. There biographies. Biographies of American Presi­ should be little surprise, then, th at scholars dents soon followed establishment of the since the 1930s have turned to biography and presidency itself. And an explanation for similar studies as additional avenues to under­ this development goes well beyond whatever standing the Court. " In law, also, men make a fascination the reading public might have with difference"23 as, one hastens to add, do women. the office, or even beyond the obvious fact Recently published books continue to illustrate that the executive is the only branch headed by the difference that different Justices make. a single individual. As the first President, The Chief Justiceship of John Marshall, George Washington cast a mold for his succes­ 1801-1835 by Herbert A. Johnson24 is the third sors that called on them to fill not merely an in the series Chief Justiceships of the United administrative office but a political one too, in States Supreme Court, under Professor which the qualities, character, judgment, val­ Johnson's general editorship. Students of the ues, and talents of the occupant of that office Court will recognize Johnson's long identifica­ mattered. tion with his subject. With George L. Haskins, In contrast, the declaratory theory of law he was co-author of Foundations of Power, John dominant in the nineteenth century obscured Marshall, 1801-15, the second volume in the THE JUDICIAL BOOKSHELF 161

Oliver Wendell Holmes Devise History of sibiJity to announce them on decision day. The the Supreme Court of the United States.25 actual production of the opinions may have Timing of the publication of Johnson's most been a joint effort of all members ofthe Court," recent book falls close to that of The Great excepting dissenters.28 Chief Justice by Charles Hobson, noted in Similarly, Marshall's political astuteness this space last year. The two are nicely informed his awareness of the Court's relation­ complementary and should be read together. ship with Congress throughout his chief jus­ And the connections go further. Johnson and ticeship. For instance, Marshall was distressed Hobson, as well as Haskins, are or were edi­ over the threat posed to the Court by the at­ tors in the on-going publication of The Pa­ tempt to remove Justice Samuel Chase from pers of John Marshall. the Bench. Concern was so great that he shared Johnson's study of the Marshall Court in a letter to a colleague his willingness to al­ yields both the expected and the unexpected. low Congress the authority to overturn Supreme The reader finds much about Marshall the man Court decisions of which it disapproved in ex­ and the judge, illustrating that "[tjo write change for abandoning impeachment as a about Marshall after 1800 is to write about method of disciplining jurists who made un­ the Supreme Court, and, with only a few ex­ popular rulings. 29 Two decades later, misun­ ceptions ... , to write about the Supreme Court derstanding of the number of Justices actually in the first third of the nineteenth century is to voting to invalidate Kentucky land laws follow- write about John Marshall."26 There is the obligatory review of the Marshall Court's pro­ jection offederal judicial power and of its juris­ prudential handiwork in the realms of constitu­ tional, private, and international law. One also finds the usual emphasis on the Chief Justice's well-deserved reputation for leadership and on the precarious political situations in which the Court found itself from time to time during Marshall's long tenure. But there are some sur­ prises too, particularly in drawing the link be­ tween leadership and politics. Johnson speculates that introduction of the "opinion of the Court" was a device not me rely to allow the Court to speak clearly with one voice but, at least during Thomas Jefferson's presidency, to "protect individual members from identification with unpopular de­ cisions." The device was coupled with a se­ niority rule for determining who would deliver the opinion, and the Chief Justice, "by virtue of Chief Justice John Marshall was so distressed by his commission, was senior to all ofthe associ­ Congress's attempt to impeach Justice Samuel ate justices."27 Thus Johnson lays out the Chase (pictured) from the Court that he felt it would be better to give Congress the authority to strong possibi li ty "that Chief Justice Marshall overturn Supreme Court decisions in exchange for delivered an overwhelming number of opinions taking away its power to impeach Justices for un­ in the first decade of his chief justiceship not popular rulings. The impeachment attempt against Chase in 1805 failed; at his trial before the Senate because he wrote, or entirely agreed with, those the charges against him were shown to be politi­ opinions but rather because it was his respon- cally motivated calumny. 162 JOURNAL 1998, VOL. 2

When Abraham lincoln and Hannibal Hamlin won the 1860 election, the Supreme Court found itself identified with the losing side be­ cause its Ored Scott decision had declared il­ legitimate the organizing principle of the new Republican party: a congressional ban on sla­ very in the territories.

ing reargument in Green v. Biddle30 plunged is also an important resource for understand- the Court deeper into controversy. Not only the nature of the Court's business at that was the outcome of the case unacceptable in time. Data that Johnson presents go well be­ many quarters but it appeared that the 1823 yond that provided seventy years ago in the only a minority of classic study by Frankfurter and Landis32 critics then intro­ Thus one learns precisely the duced bills requiring a vote by a super-major­ ions filed by each Justice in ity ofthe Court before any state or federal stat­ Moreover, Johnson ute could be invalidated. The measures fell with data and commentary on the business of short of passage, but their failure was partly the circuit courts, the principal federal trial court due to the Court's adoption of a "four-judge in Marshall's day, comprised of a Supreme Court rule" dictating "that all constitutional decisions Justice sitting as circuit judge and a district be made by the affirmative vote of four judges judge. The circuit courts not only were the of the Court regardless of the lesser number local embodiment of federal judicial power but present at argument and decision date."31 The furnished the bulk of the appellate docket for Court's preemptive step was significant. Pas­ the Supreme CourtY And among the circuit sage of a corrective bill in Congress might well courts, a large number of appeals came from have been followed by other Court-curbing pro­ the District ofColumbia-~at least twenty per­ posals then pending, such as repeal of Section cent of the total appellate docket in twenty-one 25 of the Judiciary Act of 1789. of Marshall 's thirty-four years. Cases from state The Chief Justiceship of John Marshall judiciaries amounted to much less: in most years THE JUDICIAL BOOKSHELF 163 appeals from state supreme courts did not con­ losing side in the election and, for Taney and sume more than ten percent of the Court's ap­ some of the Associate Justices, of suspect loy­ pellate business. 34 alty to the union as well. Johnson's conclusions about Marshall The legal events that ensued through early and his Court seem entirely justified. Among Reconstmction are the subject of David Silver's many "professional legacies of a life well spent Lincoln's Supreme Court, happily reissued by in the service ofa beloved country . . . [n]o one the University of Illinois Press after its initial achievement predominates." Marshall defined publication over four decades ago.J8 Like his nation, ensuring "the future constitutional Johnson's study of the Marsha II Court, Silver's stmcture of the United States," even though vividly demonstrates the difference that indi­ later Courts modified or abandoned some of vidual Justices make for the Court, the Consti­ his rulings. Marshall defined the chief tution, and the nation. The title is apt for at justiceship and left such an imprint on that office least two reasons. First, between January 1862 that every subsequent Chief has been measured and December 1864, Lincoln was able to place alongside what he accomplished. Finally, five new faces on the High Court, including Marshall defined constitutional discourse. His Justice Stephen J. Field, who held the new tenth "mode of analyzing constitutional issues seat, and Chief Justice Salmon P. Chase. Upon provided American federal law with a precise Justice John Catron's death at the end of May vocabulary and a clear view of what the issues 1865-j ust weeks after Lincoln's assassina­ would be in defining the nature of the union" tion-Lincoln's appointees amounted to a ma­ all the while leaving room "for future jority of the Bench. Second, during Lincoln's interpretation and construction of his own presidency the Court blocked not a single ad­ decisions .. .. " 35 ministration wartime policy.39 The Court of Marshall's successor, Roger Yet neither result seem assured for Repub­ Brooke Taney, was initially spared much of the licans in 1861 and 1862. "No man ever prayed political turmoil that had beset the Marshall as I did that Taney might outlive James Bench. Indeed, for two decades, amid various Buchanan's term, and now I am afraid I have national political storms, the judicial waters re­ overdone it," jested Senator Benjamin Wade mained relatively calm. Compared to what had some months before Taney's death in 1864.40 been and what was to come, it was an "era of Everyone knew that as of Lincoln's inaugura­ good feelings" for the Supreme Court. By one tion on March 4, 1861 , the Supreme Court was a estimate, the Court's prestige had never been veritable time line of history. It included two higher as the 1850s began 3 6 Bitterness over Justices (Wayne and Taney) named by Andrew Taney's role in the Bank episode of 1832 had Jackson and one (Catron) named by Martin Van dissipated, as had congressional efforts to cur­ Buren. Justices Nelson, Grier, Campbell, and tail the High Court's appellate jurisdiction or Clifford had been named by John Tyler, James otherwise to restrict its power. This situation Polk, Franklin Pierce, and James Buchanan, re­ changed abruptly, however, in March 1857 with spectively.41 Republicans were so uncertain of decision in the Dred Scott case.37 Aside from being able to control the Court that creation of tying the hands of Congress in dealing with the tenth seat, Silver concludes, points to a the most divisive national issue of the day, the packed Court "-packed, albeit, to save it, to Court declared illegitimate the organizing prin­ save the Constitution, and to save the Union." ciple of the new Republican party: a congres­ The Court " had to be removed as a factor po­ sional ban on slavery in the territories. Upon tentially dangerous to the Union. A Congress Abraham Lincoln's victory in the presidential and a President that had experienced the [mili­ campaign of 1860 followed by secession and tary] debacles of 1862 would not stand idly by war, the Court found itself identified with the to experience disaster at the hands of the Su- 164 JOURNAL 1998, VOL. 2 preme COUli."42 Indeed, had the departures Wayne of Georgia were joined by all three Lin­ of Justices Daniel, McLean, and Campbell not coln appointees to date, Swayne, Miller, and occurred when they did in 1860 and 1861, it Davis. Chief Justice Taney and Justices seems entirely possible that the Court would Nelson, Catron, and Clifford dissented. have been enlarged even further. 43 Among those pleased by the outcome in The importance of the Lincoln appointees the Prize Cases was Treasury Secretary Salmon was underscored on March 10, 1863: the Court P. Chase, whom Lincoln picked as ChiefJustice decided the Prize Cases44 on the same day that two months after Taney's death and six months Field was confirmed. At issue was the legality after Chase had left the Cabinet. Oddly, the of Lincoln's unilateral blockade of southern middle ground taken by opinion of the Court ports from April 19 to July 13, 1861, at which on the blockade-written by Justice Grier of point Congress authorized the President to de­ the Dred Scott majority-would point the way clare that a state of emergency existed. The as Chase fashioned his own view on the con­ administration argued, and the Court agreed, stitutional status of Reconstruction and post­ that the executive could take steps to suppress war federalism. This seems plain from Harold an insurrection according to the rules of war Hyman's compact work in The Reconstruction without having to acknowledge the Confed­ Justice of Salmon P. Chase.48 The result is eracy as an independent nation. The Court thus probably the closest any book has come to took a middle position-that the war had the being a strictly judicial biography of the sixth characteristics of both a war between nations Chief Justice even though it explores in depth and a wholly internal conflict. In Sil ver's esti­ only a pair of cases: the obscure In Re Turner,49 mation, the decision was pivotal for the nation which Chase decided on circuit in Maryland in as well as the Couli and is the focal point of his 1867, and the landmark Texas v. White,50 de­ book: cided by the Supreme Court in 1869, The author places both cases in the con­ The Supreme Court could not text of Chase's entire life and uses both as door­ have been called upon to give a more ways into his constitutional and political momentous decision in relation to the thought. The objective is chaJlenging because war. An adverse decision by the Court of Chase's own complexities. More than most, concerning the legali ty of blockade Chase was driven by both ambition and prin­ .. , would reflect upon all acts Lincoln ciple, as another recent biographer of Chase had taken before the assembling of has explained, and it is difficult to discern which Congress on July 4 and upon pushed harder, "Political goals were never far Lincoln's concept of executive pow­ from his mind. Invariably they were not to be 45 ers in wartime. sought for their own sake but rather for the good ofthe country and for the highest of moral Instead, the decision "reinvigorated a na­ purposes, the freedom and equality of all man­ tion that had seen much tragedy and defeat for kind. Yet these lofty motives masked a thirst for two long years."46 A courtroom defeat for the office and power that was deeply ingrained in administration would have "shattered the mo­ his character. . ."51 As a lawyer in pre-war rale of the Union" and, by acknowledging the Ohio, he had been called "the Attorney Gen­ blockade of southem ports as an act of war eral for runaway slaves."52 Before and after his under international law, might well have en­ appointment to the Court, he craved the presi­ couraged foreign powers to recognize the Con­ dency. "As long as the Presidency is not federacy as a sovereign state. 47 But the reached, every thing else that he has obtained administration's victory was by the narrowest is as dust and ashes," observed his colleague of margins: Justices Grier of Pennsylvania and Justice Davis. 53 Ironically, both Turner and THE JUDICIAL BOOKSHELF 165

White combined to render Chase unacceptable a member of the Union and by inference Con­ to both parties as a presidential contender, even gress had no authority to impose a provisional had his health not failed by 1872. government on the people of Te xas. In Re Turner involved an attempt by Eliza­ In his opinion for the Court, Chase declared beth Turner, a young black woman, to be freed that the state legislature had acted illegally in from an apprenticeship contract with her former seceding and therefore in selling the bonds ovvner, Philemon Hambleton. Matyland law pre­ (even though non-war statutes and private con­ scribed differential conditions for blacks and tracts remained legal) and that the provisional whites in such circumstances, with the former (Reconstruction) government was the ri ghtful possessing fewer rights than the latter. Rely­ possessor of the bonds. Chase thus simulta­ ing on the Thirteenth Amendment and the Civil neously espoused Lincoln's theory (that se­ Rights Act of 1866 (the Fourteenth Amendment cession was illegal and so had never occurred was still a year away from ratification), Chase in law, that the Union was perpetual, and that held for Turner. Congress had assured all citi­ the rebellion had temporarily suspended zens "full and equal benefit of all laws and pro­ Texas's rights as a member of the Union) and, ceedings for the security of persons and prop­ without passing on the validity of any particu­ erty as is enjoyed by white citizens," and the lar Reconstruction statute, acknowledged state law violated that principle. Hyman em­ Congress's authority under the Guaranty Clause phasizes "Chase's deliberately inclusive defi­ of the Constitution to maintain provisional gov­ nition of' all persons' to mean black males and ernments in the southern states. Although re­ females, among responsible, mature parties to maining state-centered, federalism had been civil contracts, with independent capacity to changed by the war, the Thirteenth Amend­ commit themselves to whatever conditions of ment, and the Civil Rights Act because the na­ labor and wages they wished."54 Turner thus tional government was empowered to redefine clarified "in concrete, workaday terms the ways "the people of each state to include blacks."56 that the Thirteenth Amendment and the Civil For Hyman, Tilmer and White demonstrate Rights Act had altered federalism."55 The re­ the middle ground that Chase occupied in the cently emancipated population could hereafter debate over the meaning of the North's victory. seek protection in a federal forum for their rights Radical Republicans asserted that "losers in a against state discrimination. civil war lost everything." Accordingly, the Texas v. White was an action by the state defeated states and their white citizens had no to block payment of bonds to White and oth­ ri ghts, and Congress would have to remake ers who held them. Congress had transferred southern society. The opposing view, espoused the bonds to Texas in 1851 , payable to the state by white southerners and many Democrats or bearer and redeemable in 1864. After Texas elsewhere was that the war had been a con­ seceded, the state sold the bonds in 1862 to flict between two independent nations . obtain war supplies. The defense that the bond­ Union victory therefore " left non war private holders advanced in the Supreme Court was legal relationships, obligations, and rights un­ that the Justices lacked jurisdiction because disturbed,"57 with little new remedial power in Texas had left the Union and, after the Confed­ Congress. For Chase, the war indeed altered erate defeat in 1865, had not been restored as a federalism, leaving it "free but still essentially full-fledged member-state of the Union. At state-centered on ordinalY civi I relationships heart the case raised questions about seces­ and criminal justice yet with the federal rights sion, Reconstruction policy, and the nature of of the nation's citizens cloaked in the judicial the Union. If Texas had legally left the Union, protections" ofthe Thirteenth Amendment and then the actions of its legislature were also le­ civil rights legislation.58 On the assumption gal. If Texas had not seceded, then it was still that political support in the North for Recon- 166 JOURNAL 1998, VOL. 2

focus of Paul Kens' Stephen J. Field, the first comprehensive book-length study of the head­ strong Californian in nearly seventy years.60 Anyone curious about Chase's on-going pur­ suit of the presidency will be intrigued by the attempt by the Field family to place brother Stephen at the head of the Democratic ticket in 1880,61 only one small episode in a life packed with the sort of adventures and achievements that are denied to most. In his case, confidence and perseverance, assuaged by good fortune, were handsomely rewarded. Ifthere is a nine­ teenth-century member of the Court who is a fitting subject for a Steven Spielberg motion picture, it is surely Field. Lincoln's choice ofField for the new tenth seat derived not merely from the widespread political backing that David Dudley's brother enjoyed in both California and Washington but Had the retirements of Justices John A. Campbell (above), John McLean (opposite, from Field's strong loyalty to the Union. An bottom left) and Peter V. Daniel (opposite, authentic "forty-niner" (but no miner) and a upper right) not occurred when they did in 1860 Buchanan Democrat as late as 1860, Field "rep­ and 1861, Congress may have decided to "pack" the Court by adding an eleventh seat. resented the first bona fide instance of a presi­ The earlier creation of a tenth seat to cover dential crossing of major party lines to fill a the western circuit, which was filled by Cali­ Supreme Court vacancy."62 Surviving three fornian Stephen J. Field, had been, in a way, also an exercise in packing the Court with a Chief Justices (Taney, Chase, and Waite), Field Justice favorable to the Republican agenda sat until 1897 (nine years into Melville W. in time of war. Fuller's Chief Justiceship) and claimed the Court's longevity record until Justice William struction would soon wane, Chase's formula O. Douglas seized it in 1973. Noting doubts called for "individuals [to protect] their own about the authenticity of the story,63 Kens­ legal interests and constitutionalized rights presumably believing it too charming to leave through racially equalized access to the law's out of the body of the book-recounts the tale protections and through exercise of the bal­ about Justice Harlan's effort on behalf of col­ lot." He exhibited a profound and "almost na­ leagues in 1896 to encourage Field to retire by ive faith in the efficacy of such self-help by reminding him ofthe visit Field himselfhad paid free labor"59 -and, one might add, consider­ to Justice Grier in 1870 because of the latter's able confidence in the good faith of the fed­ mental decline. The story ends as Field bursts eral courts and state governments to make forth, "Yes! And a dirtier day's work I never did good on the new regime's promises of equal­ in my life!" Less in doubt than this event was ity. Field's desire to exceed Chief Justice Marshall's As Lincoln's Treasury secretary, Chase record and Field's aversion (because of a de­ corresponded regularly with prominent New cade-old grudge he carried against the Presi­ York attorney David Dudley Field, brother of dent) to giving Grover Cleveland the chance to Stephen 1. Field, the President's fourth appoin­ name his successor. As events unfolded, Field tee to the Supreme Court. Field's life, particu­ retired in December following President Will­ larly his service on the Supreme Court, is the iam McKinley's inauguration in March. THE JUDICIAL BOOKSHELF 167

Whatever the circumstances that dictated the timing of his departure, Field's long ca­ reer demonstrates the uncertainty that con­ fronts any president who tries to shape public policy through careful judicial selection. Election to the presidency does not guarantee knowledge of the future. The pressing judi­ cial issues of the mid-1860s were vastly dif­ ferent from those that emerged a decade later and dominated the Court's docket near the end of the century. The author uses Field's life as a vehicle to explore the struggle in the United States to de­ fine liberty in the last third of the nineteenth century. The struggle set the boundaries of American political and intellectual history for several decades: the views for which Field con­ tended and that prevailed in his day dominated law and political thought in this nation until the forms by grafting laissez-faire economIc 1930s. All of this is territory with which Kens is theory onto the Constitution, imparting mean­ thoroughly familiar. An earlier volume is effec­ ings to the Due Process and Commerce tively a sequel to this one.64 Clauses never intended by their Framers. Some Echoing clitics from the Progressive era, of Field's contemporaries accused him of har­ the traditional account among many histolians, boring a desire to protect entrenched privilege, legal scholars, and political scientists has been whether among the railroads or other power­ that Field was among a group of Supreme Court ful interests.6; It was none less than Justice Justices who opposed all manner of social re- Holmes, dissenting in Lochner v. New York eight years after Field's death, who declared that the case had been "decided upon an eco­ nomic theory which a large part of the coun­ try does not enteltain."66 A more recent ap­ proach has been to view the important juris­ prudential developments in the late nineteenth and early twentieth centuries as a product not of concerted efforts to thwart reform but as an outgrowth of the interactions between lin­ gering Jacksonian notions of liberty and the new real ities of expanding corporate power. Kens's study of Field springs from the latter. Kens believes that Field's "ideas about lib­ erty had roots in Jacksonian Democracy and antebellum free-labor theory." That hardly dif­ ferentiates Field from countless others who matured intellectually at about the same time, although far fewer could mix that background with experiences like Field's, where he partici­ pated in the literal transformation of California 168 JOURNAL 1998, VOL. 2

in barely more than a decade after the discov­ that reflected Field's values on free labor. "It ery of gold. These roots probably affected his was moving toward a definition of pol ice power reaction as "people with the same Jacksonian that restricted state authority to enact eco­ and free-labor roots split over the meaning of nomic regulation. It was defining the com­ liberty and the proper scope of govemment merce clause in a way that limited Congress' power."67 Initially, liberty and government power to interfere with business. And it had power were considered separate parts of a zero­ already made itself the final arbiter of the va­ sum game.68 To enlarge one was necessarily to lidity of rate regulation."72 And Field was contract the other. As private economic power closely identified with each of these doctri­ became ever more a facto r in people's lives in nal developments even if he was never recog­ the second half of the century, some concluded nized within the Court as a "leader." As he that govemment power could be employed (ex­ perceived the judicial function, he may have panded) to protect liberty. Others concluded had less in common with colleagues such as that the greater danger lurked within the ex­ Morrison R. Waite and Edward Douglass cesses of govemment that only tended to make White and more with successors such as Wil­ matters worse by protecting economic privi­ liam O. Douglas and William 1. Brelman, Jr. lege. Liberty was best achieved and retained by limiting the power to govem. A similar evo­ The Twentieth Century Court lution occurred in free-labor thinking, as an outgrowth of reaction to slavery and inden­ The judicial career of Benjamin Nathan tured service. Both were examples of the heavy Cardozo-first on the New York Court of Ap­ hand of government on the individual. Yet some peals (19 14- 1932) and then on the Supreme diverged from this strain, considering govem­ Court of the United States (1932-1 938)-falls ment power more benignly in light of the heavy between Field's and the modern judicial era, hand which economic power could lay upon and Cardozo is linked to both. First, the individua l, too. progressives objected to the jurisprudence of Kens's portrait of Field is that of the radi­ Justices like Field because it erected consti­ cal individualist who perceived government as tutional barriers to ref01111. On the Supreme a threat to, not a guardian of, liberty and then Court, Cardozo was usually aligned wi th col ­ wrote that perception into his constitutional leagues who voiced restraint, thus giving a jurisprudence. His dissents in The Slaugh­ green light to social refonn and animating suc­ terhouse Cases and Munn v. Illinois69 are cessors such as Frankfurter and the second symbolic of a career. They read more like the Harlan. Despite Cardozo's heart attack and handiwork of an advocate than a judge. Kens stroke in December 1937, and the resulting believes that Field seemed guided less by a extreme incapacity that persisted unti l his death philosophy and more by an agenda: the latter on July 9, 1938, he was nonetheless present being to view the Constitution through the lens for the initial stage of the "constitutional of his understanding of individual liberty. For revolution" that is the demarcation in which the author that makes Field less of a nineteenth­ progressive forces triumphed. His votes in century jurist and more of "a prototype fo r the most key New Deal cases make him very much [modern] activi st judge"70 Field was the first a part of that first stage. Justice "to deliberately use [sic] written con­ Had he been all owed a longer tenure, one curring and dissenting opinions to bu il d a body that extended well into the I 940s, would he have oflegal authority."71 By the time of his death in been a part of the second stage of that revolu­ 1899, two years after retirement, "the Court was tion? It was this second stage that witnessed polishing I iberty of contract doctrine into a tool the "new" Court's exchanging one set of pre­ that protected entrepreneurial liberty" in a way ferred values (liberty against government on THE JUDICIAL BOOKSHELF 169

indeed he seemed more associated with the "sociological jurisprudence" of Roscoe Pound and was critical of the realist movement for assigning too much importance to legal indeterminancy. Yet, Cardozo's own path­ breaking extra-curiam writings-in particular The Nature ofthe Judicial Process (1921)­ inspired much ofthe realist movement that put an indelible imprint on scholarly perception of the art of judging and helped to legitimize the overtly political role of the modem Court.75 Cardozo's life and its influence on his judi­ cial career are the subject of The World of Ben­ jamin Cardozo by Richard Polenberg, one of the first book-length studies of this significant figure in the last half century.76 Here is a man­ ageable, well-documented, engaging, pleasing­ to-read, and illuminating book that should have a large readership, from scholars of the Court to those with only a general interest in the his­ Leading New York attorney David Dudley Field was the brother of Justice Stephen J. Field, but he corre­ tory of the period and in the intellectual world sponded frequently with Chief Justice Salmon P. that Cardozo inhabited and helped to shape. Chase over judicial matters. He and the rest of the Field family conspired to place brother Stephen at The author is probing but properly respectful the head of the Democratic ticket in 1880, a political ofa great mind. Polenberg's reference to a later 90allon9 sought by his friend Chase as well. generation of judges could just as well be ap­ plied to his own treatment of Cardozo: "It is matters of economic regulation) with another rather a mark of Cardozo's stature that modern (liberty against government on matters involv­ courts, even when reversing him, have gone ing nonproprietarian issues in civil liberties out of their way to explain the considerations and civil rights). The last opinion he deliv­ which led them to adopt different rules."77 ered for the Court-in Palko v. Connecticut/J The book's thesis is suggested by the sub­ which argued strongly against applying many title: Personal Values and the Judicial Process. of the strictures of the Bill of Rights to the These personal values derived from Cardozo's states-suggests that he would not. Probably upbringing in the economically well-en­ Cardozo would have aligned himself instead sconced78 Sephardic Jewish community of New with, and perhaps led, Justices such as Stanley York City which some of Cardozo's ancestors Reed and Frankfurter. (This speculation of had joined prior to the American Revolution. course assumes that Frankfurter would have (Cardozo may be the only Supreme Court Jus­ been Roosevelt's choice for a different va­ tice to have been tutored as a child by Horatio cancy). Alger, Jr. 79 ) The author believes that the choices Second, Justices like Field provided the Cardozo made as ajudge "become understand­ evidence for legal realists who emphasized the able only when viewed as an expression of a role ofajudge's personal predilections in shap­ deeply rooted system of personal values"80 that ing the law. Cardozo hardly counted himself amounted to "a code of conduct."sl The deter­ among the thoroughgoing "realists" (or "neo­ minative role of values in Cardozo's decisions realists"74 as he called them in 1932) as that unfolds through Polenberg's examination of term was understood in the 1920s and 1930s- cases involving morality, sexuality, social or- 170 JOURNAL 1998, VOL. 2 der, religion, and criminality. In a volume that sible objections. One involves an unavoidable opens with a five-page prologue and concludes part of writing about Cardozo (but looms large with a sixteen-page epilogue, these subjects here), and the other concerns the author's occupy the bulk offour chapters in a six-chap­ methodology. ter book. There are only passing references to There is the matter of the missing papers. other areas of law-areas perhaps less appeal­ Without question Cardozo, who never married, ing to a contemporary audience-such as torts, was an intensely private person. He discour­ contracts, real property, wills and estates, and aged biographers and displayed dis­ workers' compensation, where Cardozo's opin­ pleasure even when complimentary statements ions influenced other courts and doubtless af­ about him appeared in print. Down to almost fected untold numbers of people. Polen berg's the day of his death, he and those closest to investigation yields discovery of "a middle him endeavored to guard his course between the extremes of toleration and (Even Chief Justice Hughes seems to have been repression .... So he took a liberal, facilitative denied knowledge of the full extent of his approach to issues of economic welfare, ... associate's last illness and the unl ikel y pros­ while taking a conservative, even restrictive, pects for a retum to the Bench.) After his death, stand in cases involving what he regarded as Judge Irving Lehman, a close friend from the immoral, harmful, or criminal behavior."82 New York Court of Appeals, is supposed to Without questi on, Po/en berg makes a valu­ have destroyed all of Cardozo's private papers able contribution to the literature on Cardozo. that had been left to bis custody, including some Whether readers agree that the author's enter­ believed to be "very intimate and personal." prise succeeds fully, however, depends on However, correspondence from Cardozo in the whether they are prepared to discount two pos- hands of others survived, as have additional

Paul Kens' new biography of Justice Field describes the exciting early years in California, where Field had gone to seek his fortune in the Gold Rush year of 1849. Instead of prospecting, however, he soon began practicing law and running for office. THE JUDICIAL BOOKSHELF 171 documents. "Taken together," writes lated distinctive (if divergent) theories of Polenberg, "they allow a portrait of the man, judging which provide a useful starting point however incomplete, to emerge."SJ The dif­ for any study of the Courts on which they ficulty of course is that if one is building an served. Both were exceedingly complex indi­ argument around the impact of one's upbring­ viduals. Yet in other ways the two were strik­ ing and of one's value system as an adult on ingly different. decisionmaking, the possibility exists that Cardozo's rearing in New York was far re­ some of what wi 1.1 probably remain forever un­ moved from Black's in post-Civil War Alabama. known might well alter conclusions regarding Black was largely self-taught; Cardozo enjoyed what is thought to be true. The gap would formal educational opportunities equal to the amount to a lesser drawback ' for a different best of his day. If an author a century later has kind of study, such as one that focused more difficulty comprehending Cardozo's "strongly on what was done instead of why it was done. moralistic outlook and his unusual sense of re­ Then there is the matter of selection. serve,"87 Black's upbringing may present an­ Cardozo's desire for privacy stemmed from his other challenge. Although he did not retire "unusual sense of reserve" which, along with from the Supreme Court until two years after "his strongly moralistic outlook," contributed the first American moon landing, Black's for­ to "some of the more striking aspects of his mative years must be faraway indeed from the personality.... "84 Upon leaving Columbia Law those of most people who write about the Court. School in 1891, he appears in Polen berg's eyes Probably few of them grew up in surroundings to have been excessively Victorian even by Vic­ so impoverished that the principal difference torian standards. It is Cardozo's moralism that between those who were relatively well off, as Polenberg finds such a powerful force in his Black's family was, and those who were not decisionmaking, especially in the way in which was the difference between having more or less Cardozo employed a "selective reading of both of very little. Few may have known first hand a the evidence and the precedents ...."85 And community where the social as well as the reli­ the author makes an excellent argument for its gious life revolved around the church and where application in those cases he selects for full for entertainment one went, as Black did, to the treatment. Yet selection entails exclusion in bi­ county courthouse or to a political rally. ography too. Cardozo wrote opinions in nearly It is hard to imagine Cardozo's campaign­ 700 cases, many on subjects either passed over ing for a U.S . Senate seat from New York. Black or only briefly noted by the author. Method­ conducted two successful ones and repre­ ologically that is not without risk. One won­ sented Alabama for ten years. Black's nearly ders whether the same appraisal of Cardozo thirty-four years of service on the Supreme would have emerged from more in-depth treat­ Court are among the longest, while Cardozo's ment of some of those subjects too. six are among the briefest. When he retired, Because of Polenberg's emphasis on a Black had sat with almost one-third of the total judge's values at work, readers will quickly spot membership of the Court since 1789. Including the irony. The image that emerges confirms the both Black and Reed (Cardozo's illness pre­ realists from whom Cardozo professed to dis­ vented him from actually sitting with the lat­ tance himself. He "had a genius for making it ter), Cardozo served with ten. Cardozo was seem as if the results he reached were logical, appointed by Herbert Hoover and died during inevitable, and legally unassai lable."86 the second term of his successor Roosevelt. Justice Hugo L. Black shared some of Black served the equivalent of eight and a half Cardozo's penchant for privacy, directing the presidential terms and survived the tenures of burning of his Court memoranda shortly before five Presidents. "Chiefjustices come and chief his death in 1971. Moreover, both men articu- justices go," Black could accurately say on his 172 JOURNAL 1998, VOl. 2

eighty-fifth birthday, having out-served four of most recent prior to Ball's being Roger K. them. 88 For Cardozo, Chief Justice Hughes Newman's in 1994. In space less than halfthe preceded him to the Court by two years and length of Newman 's, Ball attempts "to capture did not depart until nearly three years after all of [Black]. .. ," to provide "a clear portrait Cardozo's death. of a driven and private public person"96 with­ If Cardozo's career ended at the outset of out "getting into psychoanalysis of the the constitutional revolution of 1937, Black's, dead."97 With Black that goal may be elusive which began less than ten months before for any author, but Ball probably succeeds as Cardozo's death, was a full participant in its well as anyone to date, especially given his initial and successive even if he lived weaving into the text of many contemporane­ long enough to witness it outrun his jurispru­ ous statements and recollections about Black dence. If Cardozo was conciliatory and "in­ from those who worked and lived most closely stinctively sought to avoid dissension,"89 Black with him. The result is a volume that encour­ loved a battle. This, at least, is the picture of ages readers to draw their own conclusions Black that emerges from Howard Ball's Hugo L. about the Justice. Black90 The subtitle captures much of the While Newman's book is organized chro­ book's content: "Cold Steel Warrior." This vol­ nologically, Ball's is only partly SO.98 Chapters ume is not his first on the only twentieth-cen­ two through five carry the reader from Black's tury Supreme Court nominee from Alabama: Ball Alabama roots through his nomination and has authored or co-authored two othersYl confinnation to the Court and the controversy Black "hardly ever acted incautiously,"92 immediately afterward over his membership in contends the author. Accordingly, the first the Ku Klux Klan. The tenth and final chapter chapter opens with an account of the fuss details the circumstances of his retirement and stirred up by Black over the wording of the death, as well as an appraisal of the Justice's customary letter to be sent to Justice Owen 1. career. In between are discrete chapters ana­ Roberts upon his retirement in 1945. In "herd­ lyzing Black's views on the role of the Court, ing" his "collection offleas"93 or managing his federalism and free expression, and the Four­ "wild horses,"94 this stonn over the phraseol­ teenth Amendment and equal protection con­ ogy must have brought Chief Justice Stone troversies, plus a chapter entitled "Friends, nearly to tears. The result, Ball reports, was Enemies, and Legal 'Children,'" which contains that Roberts not only was denied the compli­ sununaries ofBlack's relationships with his prin­ mentary language that offended Black-spe­ cipaljudicial allies and adversaries, and his law cifically, regretting "that our association with clerks. Chapters with a heavy jurisprudential you in the daily work of the Court must now focus contain the right amount of doctrinal and come to an end" and "You have made fidelity case law background: beginners should not be to principle your guide to decision"-but re­ bewildered, and experts should not be bored. ceived no letter at all. As he would on other Each of the ten chapters proceeds through a occasions, Black had prevailed against those half dozen or more vignettes to illustrate vari­ (led by Frankfurter) who underestimated either ous themes, events, and developments. his abilities, tenacity, or both. The stakes may For Ball, Black's view of the Constitution have been small and Black's motives petty, but embodied "a vision about the future of the "Black, on this occasion standing with only American experiment in republicanism." Black's one ally, had won a small battle against some jurisprudence "was both literalist and absolut­ tough adversaries."95 ist in nature," and, win or lose, he "insisted that Black attracted scholarly interest during his judicial opponents grapple with his most of his Court years and has been the sub­ thoughts and respond to them, and to him." ject of a series of books since his death, the Foremost was his certainty about the "central- THE JUDICIAL BOOKSHELF 173

Richard Polenberg's recently published World of Benjamin Cardozo focuses on how the Justice's personal value system affected his judging. The author at­ tributes Benjamin Cardozo's strong moral sense to his upbringing in New York's Sephardic Jewish community, which had established itself prior to the American Revolution. ity of the Bill of Rights and its protection of its proper bounds, nor feared to carry it to the every person . .. against unlawful actions in fullest extent that duty required." 10 1 any governmental operation .... Another sig­ Justice Black and his pugnaciousness fig­ nificant legacy was his perception of the First ure prominently in Melvin 1. Urofsky's Divi­ Amendment as the foundation for all liber­ sion and Discord, 102 the fourth volume to date ties .. .. "99 Indeed, significant development in the series Chief Justiceships of the of the First Amendment occurred during United States Supreme Court. Like its com­ Black's tenure, and he had a major part in the panions, this one on the chief justiceships of handiwork, carried on after his death by oth­ Stone and Vinson (1941-1953) is a useful ad­ ers such as Justice Brennan. Black's starting dition to the literature of the Court. What­ point, derived from his Alabama years, was that ever the challenges the authors of the other freedom of the mind and freedom of expres­ three confronted, however, they were spared sion released the potential that produced hu­ one that Urofsky could not avoid. While ev­ man progress. Coupled with this sense of con­ ery Court since 1790 has exhibited some mea­ stitutional purpose was a wariness of "non­ sure of personality conflict and unpleasant­ elected federal judges exercising their power ness, the years between the Hughes and War­ of judicial review.. . ."100 Thus Ball's account ren Courts have the unenviable distinction of yields a paradox: one of the most activist of being the least collegial and most internally judges had a keen sense of constitutional lim­ vindictive. The feuding and back-bitting are its on judicial power. One suspects that Black now so well known because the behavior is so would have agreed with Chief Justice well documented: Justices of this period left Marshall's self-evaluation that he had "never a remarkable archival record to posterity. And sought to enlarge the judicial power beyond the remarkable thing about that remarkable 174 JOURNAL 1998, VOL 2

Justice Hugo L Black !left with wife Elizabeth) went head to head Chief Justice Harlan Fiske and Justice Felix Frank­ furter over the wording ofthe cus­ letter to be sent to Jus­ J. Roberts (oppos~e on his retirement in 1945. obj!ect~ldto a phrase regretting our association with you in daily work of the Court must come to an end" and another l'nrnr.lin".. ".hn,n him for having fidelity to principle your to decision." Ultimately, poor Roberts received no letter at all. record is that those who compiled it seemed service in Congress, on an appeals court, and generally unconcerned about how petty and in the cabinet, Vinson, even with his "hearty meanspirited much of it would appear, bonhomie,"lo5 could do no better, 106 Frankfurter in particular complicated re­ The Stone-Vinson years may be curious lationships. "There is an arrogance about [him] because of their "division and discord," but that is absent from the others, and this trait Urofsky believes that they are noteworthy had been present well before he went on the because they amounted to a transition or bench," the author observes. He "thought that link between the Hughes and Warren eras. A he knew best and, like Woodrow Wilson, latter-day Rip Van Winkle, falling asleep at the tended to personalize differences. It is an un­ Supreme Court in, say, 1935 and awaking in 1955, attractive characteristic in any person, but it would have been amazed at the transformation, is disastrous in a small community of nine and not only because of the nine unfamiliar people."IQJ But the blame for the ill-feeling faces on the Bench. The Court of 1935 was a cannot be placed entirely at his feet. "It takes property-centered institution on the eve of a two to make a fight," Cardozo once said about spectacular clash with the elected branches of the Court to Judge Learned Hand, 104 The chem­ government because it thwarted reform, The istry among Frankfurter, Black, Douglas, and Court of 1955 processed a docket nearly shorn Jackson, to name but four, was not good. of property rights disputes and had become Stone's deanship of the law faculty at Colum­ centered on civil liberties and civil rights, More­ bia had prepared him for this mixture no more over, it had just started down a decisional path than his years as Attorney General or his "ap­ that would again bring it into conflict with the prenticeship" in the Hughes Court. Despite elected branches-this time because it insti- THE JUDICIAL BOOKSHELF 175

di fferences among them over how far the Court should go in that direction and the im­ pact those differences have had on their suc­ cessors, no Bench since their day has evaded the responsibility the Stone-Vinson Courts assumed. Present on the Bench when Stone became Chief Justice, Justices Black, Douglas, Frank­ furter, and Jackson were still on the Court when Chief Justice Vinson died in 1953. Jackson would sit for another year, Frankfurter for an­ other nine, and Black and Douglas for an addi­ tional eighteen and twenty-two, respectively. It is at least arguable that their fractiousness would have delayed, derailed, or otherwise muted some of the momentous decisions yet to come in the next decade had Vinson died later or had President Eisenhower selected a new Chief in 1953 from the ranks of the side Jus­ gated reform. tices. In short, the "transitional" characteris­ Landmark decisions after 1953 would have tics of the 1941-1953 period could have merely been doctrinally and politically improbable had continued. Instead, the appointment of Earl the Supreme Court, prior to 1953, not con­ Warren brought a Chief to the Court who was summated the revolution of 1937. The Bench able to provide the social and managerial, if under Chief Justice Stone could have stopped not the intellectual, leadership absent in his with the first stage, by adopting a posture of two predecessors. Nearly three decades after procedural liberalism: removing constitu­ his retirement in 1969 and nearly a quarter­ tional barriers erected before 1937 to what­ century after his death in 1974, the nation con­ ever reform measures majoritarian politics tinues to contend with the unprecedented ad­ might enact. The Stone Court and the Vinson justments wrought by the Court during his six­ Court did more: both Benches, with varying teen years at the judicial helm. degrees of enthusiasm, gradually moved to­ Warren was a biographical subject even ward programmatic liberalism. A judicial before he left the Bench with Leo Katcher's hands-off for economic regulation would be Earl Warren and John D. Weaver's Warren accompanied by ajudicial hands-on in matters coming out in the same year. lOS The former such as racial or religious discrimination, to stressed his pre-Court years in California and ensure a liberal result. Dwarfing the interper­ his quest for the presidency; the latter lent sonal conflicts and constitutional debates that slightly less than half its length to his judicial mark the Court during this time was thus some­ service. In Earl Warren, G. Edward White, who thing more important: general agreement that clerked for the Chief Justice in his retirement, the role of the Court had changed fundamen­ portrayed the man through a series of episodes tally. Whatever the differences between Black and elements of his life, particularly after 1953 .109 and Frankfurter, for example, " both believed White's book was followed a year later by one the govenunent had the power to regulate the almost twice as long: Bernard Schwartz's Su­ economy, and above all, both believed that the per Chief, a judicial biography in the strict Supreme Court had the obligation to protect sense of the term in that it begins with his ar­ the rights ofindividuals."107 Notwithstanding rival at the Court. I 10 It was also one of the first 176 JOURNAL 1998, VOL 2

biography of , writer David Stebenne points out thatthe Justice did serve long enough to employ future Justice Stephen G. Breyer as a law clerk. to reveal the internal dynamics of Warren 's ten­ A bluff, outgoing politician, he ure, which yielded so many landmark rulings. appealed to millions-at the same Alongside these and other accounts of time hiding a private, inner man re­

Warren comes Ed Chief Justice. III If vealed to only a very few. Not a legal a volume ofjudicial biography can ever qualify scholar, he nonetheless led a legal for the hammock or the pool side, Cray has revolution .... This former prosecutor written it A journalism professor in Califor­ fashioned majorities in case after nia, the author has written nearly a dozen books case to protect the rights of the ac­ on a variety of subjects from General George cused .... One of the first local offi­ Marshall to bawdy songs. 1 Dividing itself cials secretly to amass files on sus­ almost equally between Warren's California pected subversives, he later led the and Washington years, Chief Justice is Cray's high court to a series of decisions that first book to focus on the Supreme Court. curtailed the Red Scare of the 1950s. With its brief paragraphs and short sentences ... He was in many ways old-fash­ its journalistic writing style seems closest to ioned in his values, even prudish. Yet Katcher's. In the quantity of information and this man voted to permit the publica­ number of insights about his subject that Cray tion of books and showing of motion shares with the reader, the book may be with­ pictures that provoked him to say he out parallel. These he gleans not only from would kill the man who showed such the expected manuscript collections, oral his­ material to his daughters. . . . With tories, and published sources, but from inter­ his appointment to the Supreme views with most of Warren's law clerks, fam­ Court ... , liberals groaned in dismay. ily members, and more than 100 other per­ ... Sixteen years later, conservatives sons. The result is a friendly and highly read­ cheered his resignation .... 115 able account of a major figure in modern American history. Cray has found his hero. JJ3 The story Cray tells is the unfolding of If Chief Justice has a thesis, it is that War­ those contradictions. The author is at his best ren was a man of contradictions, one who in describing Warren's relationships with "grew to meet the demands of each new job. "114 ures such as Lyndon B. Johnson and Richard THE JUDICIAL BOOKSHELF 177

Nixon, and in depicting situations or episodes, ing an at-large ambassadorship from President such as Warren's quest for the presidency, the Jimmy Carter in 1977-1978, during the re­ 1952 Republ ican National Convention, his maining twenty years of his life. One can only bulldog tenacity in 1953 that would not release speculate about the impact that Goldberg Eisenhower from his promise about the "first would have had on the Court and national poli­ vacancy" at the Supreme Court, and his over­ tics had he not resigned in 1965. Most di­ seeing the work of the commission in 1964 rectly, would Johnson have picked Abe Fortas to investigate the assassination of President or Thurgood Marshall to succeed retiring Jus­ John F Kennedy. He does very well at captur­ tice Tom Clark in 1967? ing the personal qualities that were surely re­ The well-crafted and thoughtful Arthur J. sponsible for Warren's success as a Court Goldberg by David Stebenne is the first biog­ leader. The book is often less satisfying in its raphy of the 94th Justice.ll s The amply docu­ description of judicial decisions. Sufficiently mented volume-the 382 pages of text are fol­ straightforward and workmanlike, the case pre­ lowed by 142 pages of notes-is actually three sentations seem intended to appeal to the gen­ books in one. There is first the expected por­ eral reader. Others will need to look elsewhere trayal of the man and his work, although for in-depth discussion of some of the major Stebenne's emphasis is more on the public than underlying jurisprudential controversies that the private aspects of Goldberg's life. But the beset the Court. private side is not altogether neglected. One With a handful of exceptions, most of the learns, for instance, that as a teenager in the Warren Court's major pronouncements on crimi­ 1920s, Goldberg worked as a vendor at nal justice, implementation of school integra­ Chicago's Wrigley Field, dispensing coffee from tion, legislative districting, religious freedom, a large urn that was strapped to his back and free speech, and privacy followed Frankfurter's that in pre-Prohibition days had been used to retirement and Kennedy's appointment of dispense beer. I1 9 Stebenne fully verifies Willard Arthur 1. Goldberg to replace him. Fourusually Wirtz's assessment of the man: "perpetual en­ sure votes (Warren, Black, Douglas, and ergy in constant motion leading to endless Brennan) for programmatic liberalism became achievement."1 2o five with Goldberg's arrival. I16 Although his Second, the book is labor history. Prior to appointment was eventful, his tenure was 1962, the bulk of Goldberg's public career had brief-{)nly about two years, ten months-mak­ been involved with labor law and policy, most ing his one of the shortest in Court history (but immediately as secretary of labor in the long enough to encompass the clerkship of one Kennedy administration. So Stebenne's ac­ current member ofthe Supreme Court, Justice count of Goldberg is set within a history of Stephen G. Breyer). Indeed, in this century, organized labor in the United States, especially only Justice James F. Byrnes, Jr. , had a more after the New Deal. Both the Goldberg story fleeting tenure. 117 Goldberg resigned in 1965 and the labor story make his positions in high­ after President Johnson persuaded him to suc­ profile Supreme Court cases entirely under­ ceed Adlai Stevenson as U.S. ambassador to standable, even though Goldberg's judicial ser­ the United Nations, and probably after vice occupies only a small part of the volume­ Goldberg thought he had some assurance from mainly covered in a single chapter of thirty-six Johnson for reappointment to the Bench once pages. the Vietnam problem had been settled by nego­ Finally, at a higher level of generality, tiation. Neither of course happened. After an Stebenne tells Goldberg's and labor's stories unsuccessful try for the governorship of New as part of "the rise and decline of a certain so­ York in 1970, Goldberg returned to law prac­ cial bargain, one that for all its problems re­ tice and assumed special public duties, includ- mains central to the political economy of this 178 JOURNAL 1998, VOL. 2 society and all the other highly industrialized THE BOOKS SURVEYED IN THIS market systems."121 So the book is also in­ ARTICLE ARE LISTED tellectual and political history. With ALPHABETICALLY BY AUTHOR Goldberg's help, this "bargain" emerged among BELOW organized labor, management, and the federal government after World War II. Most union B AKER , THOMAS E. "The Most Wonder­ leaders agreed to give up further efforts to ful Work. ..": Our Constitution Interpreted wrest control of basic business decisions from CSt. Paul, MN: West Publishing Co. , 1996) management, to demand wage increases that Pp. xliv, 706. were linked to increased profits and produc­ BALL, HOWARD. Hugo L. Black: Cold tivity (in place of a guaranteed wage), and to Steel Warrior (New York: Oxford University support the Truman administration and the Press, 1996). Pp. xiv, 305. Democratic party on containment and other CRAY, ED . Chief Justice: A Biography anti-communist policies. Corporations agreed of Earl Warren (New York: Simon & to accept unions, to accept labor's gains from Schuster, 1997). Pp. 603. the 19305 and early 1940s, to provide fringe HYMAN, HAROLD M. The Reconstruction benefits, and "to pursue investment and output Justice of Salmon P. Chase: In Re Turner and policies that helped promote high employment Texas l'. While (Lawrence: University Press of for union workers." For New Dealers, this Kansas, 1997). Pp. xi, 184. program "signaled a sea change in the intel­ J OHNSON, H ERBERT A. The Chief Justice­ lectual content of .. . liberalism."1 22 Stebenne ship of John Marshall, 1801-]835 (Columbia: then demonstrates the not entirely positive University of South Carolina Press, J 997). Pp. consequences this bargain entailed for labor xii,317. especially after the demise of the Cold War KENS, PAUL. Justice Stephen Field: Shap­ brought an end to any need for containment ing Liberty from the Gold Rush to the Gilded Goldberg "like so many other New Deal lib­ Age (Lawrence: University Press of Kansas, erals, had erred in assuming so confidently that 1997). pp. viii, 376. [the prosperity wrought by the bargain] would POLENBERG, RlCHARD. The World of Ben­ endure and expand indefi ni te ly during his own jamin Cardozo: Personal Values and the Judi­ lifetime."123 cial Process (Cambridge, MA: Harvard Uni­ Policies therefore have consequences, versity Press, 1997). Pp. xiv, 288. sometimes unintended. Whether those poli­ SILVER, DAVID M. Lincoln's Supreme Court cies arrive in the form of a labor agreement, (Urbana: University ofJlIinois Press, 1998; re is­ statute, or judicial decision, citizens are more sue of J 956 edition). Pp. viii, 272. likely to understand them by also understand­ STEBENNE,DAVlD L. Arthur J. Goldberg: ing the people who make them. With courts as New Deal Liberal (New York : Oxford Univer­ with other political institutions, that reality sity Press, 1996). Pp. viii , 539. places a heavy responsibility on the art ofbi­ UROFSKY, MELVfN L Division and Discord: ography. The Supreme Court under Stone and Vinson, 1941-1953 (Columbia: University of South ****** ********* ***** Carolina Press, J 997). Pp. xv, 298. THE JUDICIAL BOOKSHELF 179

Endnotes 21 Robert Lowry Clinton, Marbury v. Madison and Judi­ cial Review (1989), pp. 116-27 . I 2 u.s. (2 Dallas) 419 (1793). 11 Felix Frankfurter, ed., Mr. Justice Brandeis, p. v 2 Edward S. Corwin, "Establishment of Judicial Review," in (emphasis in the original). Richard Loss, ed., Corwin on the Constitution: Volume 13 Felix Frankfurter, Mr. Justice Holmes and the Supreme 1\\'0; The Judiciary (1987), pp. 71-72. This chapter origi­ Court (1939), p. 9. nally appeared as an article in two parts: 9 Michigan Law 24 Herbert A. Johnson, The Chief Justiceship of John Review 102-25 (1910), and 9 Michigan Law Re view 283 - Marshall, 1801-1835 (1997) (hereafter cited as Johnson). 316 (1911). 21 Published in 1981 . Ten vol umes in the Holmes Devise 35 U.S. (J Cranch) 137 (J 803). series have appeared to date. , Edward S. Corwin, quoted in Alpheus Thomas Mason 16 The observation was made by the author in connec­ and Do nald Grier Stephenson, Jr., American Consti­ tion with Hobson's The Great Chief Justice. See "The 'h tutional Law: Introductory Essays and Selected Cases, 8 Judicial Bookshelf," Journal oj Supreme COllrt HistOIY, ed. (1987), p. 3. vol. II (1997), p. 151. lThomas E. Baker, "The Most Wonderful Work... ": Our ,7Johnson, p. 100. Constitution Interpreted (1996) (hereafter cited as Baker). " Id., p. 102. 6 "As the British Constitution is the most subtile organism 29 William H. Rehnquist, Grand Inquests: The His­ which has proceeded from the womb and the long gesta­ toric Impeachments of Justice Samuel Chase tion of progressive history, so the American Constituton and President Andrew Johnson (1992), p. 126. is, so far as I can see, the most wonderful work ever struck 30 21 U.S . (8 Wheaton) I (1823). offat a given time by the brain and purpose of man ." Will­ 31 Johnson, p. 105 . iam E. Gladstone, "Kin Beyond Sea," 127 The North Ameri­ Jl Felix Frankfurter and James M . Landis, The Busi­ can Review 179, 185 (1878). ness of the Supreme Court ( 1928). Their concern 7 Baker, p. xiii. and focus were of course different from Johnson's. 8 Id. , p. xi. See especially pages I-55 and 299-307. 9 Id ., p. viii . 33 See especially the graphs in Appendix A and Appen­ 10 Id., pp. ix-x. dix B, in Johnson, following page 263. " Id. , p. xiii. 3' See especially Figure 4 in id., p. 114. 12 Charles Warren, 1 The Supreme Court in United 35 Jd., pp. 261-262. States History, rev. ed. (1926), pp. 58-59. 36 Warren, 2 The Supreme Court in United States 13 Baker, p. xi ii . History, p. 206. " 517 U.S . 620 (1996). J1 60 U.S. (19 Howard) 393 (1857). II Gibbons v. Ogden, 22 U.S. (9 Wheaton) I (1824); 38 David M. Silver, Lincoln's Supreme Court (1998; Cohens v. Virginia, 19 U.S. (6 Wheaton) 264 (1821); reissue of 1956 edition) (hereafter cited as Silver). Dartmouth College v. Woodward, 17 U.S. (4 Wheaton) 39 Sitting as ci rcuit judge, Chief Justice Taney did try to 518 (1819); CharLes River Bridge v. Warren Bridge, 36 thwart military detentions in areas where the civil U.S. (11 Peters) 420 (1837); ,HlInn v. !LLinois, 94 U.S . cour1s were functioning. See Ex parte Merryman, 17 113 (1877); and Wickard v. FiLburn , 317 U.S. I I I Fed . Cas. 144 (No. 9487) (CCMd., 1861). The U.S. (1942), to name but six. military and the Lincoln administration ignored the 16 1. Woodford Howard, Jr., "Judicial Biography and order. Silver concludes that Ex parle Milligan [71 U.S . the Behavioral Persuasion," 65 American PoliticaL (4Wallace) 2 (1866)] was a vindication of Taney's Science Review 704, 704-5 (1971). position in Merryman. See Silver, pp.223-236. J7 Thomas Carlyle, "Jean Paul Friedrich Richter," in I Milligan "demonstrates that Taney was not really Critical and Miscellaneous Essays (1897), p. 3. wrong when he challenged Lincoln's arbitrary arrests. " Albert J. Beveridge, I The Life of John Marshall Rather, he was indiscreet and untimely." Silver, p. ( 1916), p. V. 228. 19 Felix Frankfurter, ed., Mr. Jllstice Brandeis ( 1932), 40 Quoted in John G. Nicolay and John Hay, 9 Abraham p. vi. The operative word seems to be Frankfurter's Lincoln: A History (1886), p. 386. assessment of "adequately." He could have men­ 41 The ninth seat had remained vacant since the death tioned, but did not, important works such as The Life in May 1860 of Justice Daniel, also a Van Buren ap­ of Oliver Ellsworth by William Garrott Brown pointee. (1905) and Carl Brent Swisher'S nearly brand new 42 Silver, pp. 93, 88. Stephen J. Field: Craftsman of the Law ( 1930). 43 Jd., p. 118. 10 Osborn v. Bank, 22 U.S. (9 Wheaton) 738, 866 44 67 U.S. (2 Black) 635 ( 1863).

( 1824). 45 Silver, pp . 105-106. 180 JOURNAL 1998, VOl. 2

' 6 Id., p. 116. York State Bar Association.

" Id., p. 106. 15 One should be as careful with labels in scholarship as ,. Harold M . Hyman, The Reconstruction Justice in judging, as Cardozo himself admonished : "A fertile of Salmon P. Chase: III Re Tllrner and Texas v. While source of perversion in constitutional theory is the (l997)(hereaftercited as Hyman). tyranny of labels." Snyder v. Massachusells. 291 U. S. 49 24 Fed. Cas. 337 (No. 14, 247)(CC Md., 1867). 97, 114 (1934). lO 74 U.S . (7 Wallace) 700 (1869). 76 Richard Polen berg, The World of Benjamin Cardozo: 51 John Niven, Salmon P. Chase (1995), p. 5. No more Personal Values and the Judicial Process ( 1997) (here­ than a fifth of Niven's study is given over to Chase's Court after cited as Polenberg). years. 77 Id , p. 248. " Quoted in Robert Shnayerson, The Illustrated ,. Id., p. 14 .

History of the Supreme Court of the United States (1986), 79 Id., p. 23-24. p.123. 80 Id. , p. xii . lJ Quoted in Charles Fainnan, History of the Supreme Court 81 Id., p. 247 . of the United States; Volume VJ, Reconstruction and Re­ 82 Id. , p. 248. union, 1864-1888, Part One (1971), p. 1465. SJ Id., p. 5.

54 Hyman, p. 129. 8' Id. . p. 43. II Id., p. 131. " Id., p. 247. 56 Id., pp. 148-149. 86 Id.

57 ld., p. 101. 87 Id., p. 43 . l8 Id., p. 104. 88 The context of the statement was a comment on 19 Id., p. 156. leadership. Black continued, "Some have more influ­

60 Paul Kens, Justice Stephen Field: Shaping Lib­ ence than others. Some. . have more influence be­ erty from the Gold Rush to the Gilded Age (1997) cause they are better lawyers, some because they have (hereafter cited as Ken s). See the reference to Swisher's more ability to influence other people" Baltimore book, in note 19. Swisher'S biography of Field ap­ Sun , Feb. 28, 1971, p. I. peared just before the values that Field represented 89 Polen berg. , p. 171. were being pushed aside. 90 Howard Ball, Hugo L. Black: Cold Steel War­ 61 K ens, pp. 169-196. rior (J 996) (hereafter cited as Ball).

62 Henry J. Abraham. Justices and Presidents, 3d 9 1 The Vison and the Dream of Justice Hugo L. ed. (1992), p. 12 1. Black (1975); with Phillip J. Cooper, Of Power and 63 An endnote reveals the author'S belief that Charles Right: Hugo Black, William O. Douglas, and Alan Wright 's analysis of the tale proves it to be " in­ America's Constitutional Revolution (1992). accurate." Kens, p. 338, n. 103 . See Wright, " Au­ 92 Ball, p. 244. thenticity of 'A Dirtier Day 's Work' Quote In Ques­ 9J Quoted in Melvin I. Urofsky, "Conflict Among the tion," 13 Slipreme CalirI His/orical Society Quarterly Brethren," 1988 Duke Law Journal 7 1, 89 (1988). 6-7 (Winter 1990) . 9' Alpheus Thomas Mason, Harlan Fiske Stone .., Paul Kens, Judicial Power and Reform Politics: ( 1956), p. 580.

The Anatomy of Lochner v. New York (J 990). 9l Ball, pp. 13 , 15 .

6l Kens, p. 275. 96 Id. , p. 3 (emphasis in the original).

66 198 U. S. 45, 75 ( 1905). The five-Justice majority 97 Id., p. 246. in Lochn er inc luded Justice David Brewer (Field's 9S Immediately following the table of contents is a nephew). two-page chronology of Black's life. No biography

61 Kens. p. 7-8. should be without such a useful device. 68 William M . Wiecek, Liberty Under Law: The 99 Ball, p. 248.

Supreme Court in American Life (1988), p. 17. 100 Id. , p. 249. 69 83 US. (16 Wallace) 36 ( 1873) ; 94 U. S. 113 (1877). 10 1 Quoted in Beveridge, 4 The Life of John Marshall

10 Kens, p. 284. (1919), p. 522. " ld. , p. 10 . 102 Melvin I. Urofsky, Division and Discord: The 7l ld. , p. 265. Supreme Court under Stone and Vinson, 1941-

1J 302 U.S. 319 (1937). 1953 (1997) (herea fter cited as Urofsky).

74 Cardozo, "Jurisprudence," in Margaret E. Hall, ed., 10J ld., p. 35.

Selected Writings of Benjamin Nathan Cardozo 104 Quoted in Polenberg, p. 3.

(1947). pp. 10- I I. This essay consists of a lengthy 10l Bernard Schwartz. A History of the Supreme address Cardozo delivered in January 1932 to the New Court (1993), p. 253. THE JUDICIAL BOOKSHELF 181

106 Of course the Court's internal troubles did not go unno­ Super Chief" (train numbers seventeen and eighteen), that ticed in the press at the time. For example, upon Stone's operated between Chicago and Los Angeles in under forty death there were reports, apparently incorrect, in the news­ hours. Official Guide of Ihe Railways (Dec. 1964), pp. papers that Black and Douglas had informed President 672-673.

Truman that they would resign if Jackson, who wa s on III Ed Cray, Chief Justice: A Biography of Earl Warren leave at Nuremberg, were named Chief. Believ ing what (1 997) (hereafter cited as Cray). he read in the papers, Jackson castigated Black in a tele­ II I Ed Cray, General of the Army George C. Marshall: gram to the President and sent copies to members of Con­ Soldier and Statesman (1990); The Erotic Muse: Ameri­ gress and the media. Nonetheless, the press of the period can Bawdy Songs, 2d ed. (1992). was genera lly respectfu I of the Court and tended to print " ' The author's apparent fondness for hi s subject may far less than reporters probably knew. With the absen ce of explain the gratuitous comments about the present Chief reticence as th e rule in today 's med ia, one should ponder Justice that seem entirely out of place. Cray, p. 529. the consequences should si milar scorpion-like behavior 1I· 1d. ever aga in become routine. II ' Id., pp . 9-10. "" Urofsky, p. 263 . 11 6 A fter Goldberg's resignation in 1965, that fi fth lOS Leo Katcher, Earl Warren: A Political Biogra­ vote was typically supplied for four years by his re­ phy (1967); John D. Weaver, Warren: The Man, placement, Justice Abe Fortas. the Court, the Era (1967). Weaver's is well-docu­ " ' [n the nineteenth century, there seem to be but mented with notes; Katcher's is not. two-Robert Trimble and Howell E. Jackson-who

1(19 G. Ed ward White, Earl Warren: A Public Life served fewer months. ( 1982). li S David L. Stebenne, Arthur J. Goldberg: New

11 0 Bernard Schwartz, Super Chief: Earl Warren Deal Liberal (1996) (hereafter cited as Stebenne). and His Supreme Court-A Judicial Biography 11 9 !d. , p. 5.

( 1983). In Schwartz 's perspective, the possessive pro­ 110 Quoted in a statement by Justice Stephen Breyer on noun in the subtitle is the key word. Justi ce Brennan the book 's dus t jacket. was apparently the first to call Warren "Super Chief." One 12 1 Stebenne, p. I'll. supposes that the refere nce comes from the name of the '" Jd., p. 76. Sante Fe Railroad 's celebrated first-class streamliner, "The III Id., p. 382. 182

Contributors

William D. Bader is a visiting lecturer at Loui­ Stephen R. McAllister is associate professor siana State University at Shreveport, an adjunct of law at the University of Kansas. instructor at the University of Virginia, and a member of the Connecticut bar. Kevin D. McDonald is a partner at the Wash­ ington office of Jones, Day, Reavis & Pogue. Milton C. Handler was a professor at Columbia Law School and a partner in the New York law D. Grier Stephenson,Jr. is the Charles A. Dana firm of Kaye, Scholer, Fierman, Hays & Han­ Professor of Government at Franklin and dler. Marshall College. He regurlarly contributes "The Judicial Bookshelf" to the Journal. Alexander Andrew Mackay Irvine is the Lord High Chancellor of Great Britain. This paper Melvin I. Urofsky is professor of constitutional was originally delivered as the 1998 National law at Virginia Commonwealth University and Heritage Lecture. chairman of the Society's Board of Editors.

AJan C. Kohn is a trial lawyer in St. Louis. Peter Wallenstein is associate professor of history at Virginia Polytechnic Institute and Roy M. Mersky is WilJiam Stamps Farish Pro­ State University. fessor of Law and Director of Research at the Jamail Center for Legal Research, Tarlton Law Seth Waxman is the Solicitor General of the Library, The University of Texas at Austin United States. He delivered this paper at the School of Law. Society's Annual Meeting in June.

Corrections

We apologize for the following errors in the first volume of the 1998 Journal of Supreme Court History:

On page 120, the Justice identified as Charles Whittaker is in fact Sherman Minton. On page 156, the Justice sitting on the far left is Willis Van Devanter. On page 166, Herbert A. Johnson's correct title is Hollings Professor of Law at the University of South Carolina. 183 Photo Credits

Page 4, Corbis Page 94, bottom, Associated Press Page 6, left, Library ofCongress, LCUSZ62-4678 Page 10 I, National Baseball Library & Archive Page 6, right, Library of Congress, LCUSZ62- and Corbis 13014 Page 103, National Baseball Library & Archive Page 9, Library of Congress, LCUSZ62-4693 Page 110, Library of Congress, LCUSZ62-049733 Page 10, left, Library of Congress, LC-BH832- Page III, both, National Baseball Library & 937 Archive Page 10, right, Library of Congress, LCUSZ62- Page 117, top and bottom, National Baseball 053729 Library & Archive Page 12, Library ofCongress, LCUSZ62-051524 Page 130, Library of Congress Page 13, Library of Congress, LC-BH82-137 Page 132, left:, Library of Congress, LCUSZ62- Page 15, Library of Congress, LC-USZ62-37259 13011 Page 29, courtesy British Information Services Page 132, right, Collection ofthe Supreme Court Page 32, Collection of the Supreme Court His­ Historical Society torical Society Page 133, Library of Congress, LCUSZ62-38214 Pages 43 , 45, 48, 49, 51, photographs courtesy Page 136, Rhode Island Historical Society of Alan C. Kohn. Page 139, below, Library of Congress Page 54, below, Library of Congress, LCUSZ62- Page 139, above, Library of Congress, 42642 LCUSZ62-14734 Page 54, above, Harvard Law Art Collection Page 144, Library of Congress Page 58, Collection ofthe Supreme Court of the Page 149, top and bottom, Corbis United States Page 153, Library of Congress, LC-F80 1-12295 Page 61, Collection of the Supreme Court of the Page 159, Library of Congress LCUSZ62-7196 United States Page 161, Library of Congress Page 68, Library of Congress, LCUSZ62-33653 Page 162, Library ofCongress, LC-USZ62-37552 Page 71, Library of Congress, LCUSZ62-3250 I Pages 166 and 167, all Library of Congress Pages 74, 76, all courtesy Alabama Supreme Page 169, Library of Congress, LC-USZ62-70556 Court Page 170, Library of Congress, LC-USZ62-1406 Page 79, Corbis Page 173, Collection of the Supreme Court of Page 82, Corbis the United States Page 91, bottom, Library of Congress, LCUSZ62- Page 174, The Washington Post 111825 Page 175, Collection of the Supreme Court of Page 91 , top, National Baseball Library & the United States Archive Page I 76,Collection of the LBJ Library Page 94, top, Library of Congress

Cover: Collection of the Supreme Court of the United States ACKNOWLEDGEMENT

The Officers and Trustees of the Supreme Court Historical Society would like to thank the Charles Evans Hughes Foundation for its generous support of the publication of this Journal. N° E WIN PAP E R B A C K A "atter of Interpretation Federal Courts and the Law ANTONIN SCALIA Edited by Amy Gutmann "Love him or hate him (it's hard to imagine a neutral opinion), Scalia is a brilliant and engaging writer. This tantalizing short debate with his equal­ ly brilliant critics shows just how radical our most conservative justice is." · -San Francisco Chronicle "Scalia projects a sanguine humor through a robust prose enlivened by sly sallies against what he sees as the gaps in logic of the opposing camp." - The Wall Street Journal Paper $12.95 ISBN 0·691 -00400-5 Princeton University Press AT FINE BOOKSTORES OR CALL 800-777-4726 · HITP: //PUP.PRINCETON .EDU