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S U Prem E Co U Rt Hi St O Ry 2003 VOL 28 NO . 2 JOU RNAL OF S U PR E M E CO U RT HI ST O RY 1059-4329 in March, and November by the Court Historical offices 350 Main Street, Malden, MA 02148, USA, and 9600 uarslngton 1-800-835-6770 Or 388-8200 or +441865 or +44 1865 381393 (-mail: sut)Scr.ro(aJl:>lackweJ Infurmation for Subscribers copy reguests, claims, ofaddress, and all other )cn"rrmcnr at the nearest Blackwell office addr",,," .:>uoscnpuon Rates for Volume 28, 2003 Institutional Premium Rate print to the current and all available The Americas $104, Rest of World £80; Print and onlIne-only are also available Issue Rates: Insntutions: The Amencas $38, Rest of World £29, Customers in Canada should add 7% GST to the Americas rate or UK and EU should add VAT 5% to the Rest of entitlement to access information and terms and conditions, visit institutions also avaIlable on our website, or on request from our customer service or + 1 781 388-8206 (US office') +44 (0)1865 251866 Keep up wlth new ~ Blackwell we'll send you E-mail Alerts V.#' books yout' field. ::>lgmng IIp IS easy. • choose whlch interests you, and we'll send you a message every other week • OR sdect which books and iournals you'd like to hear aDour, and when your mess;:}gcs Electronic Access Abstract information For information on full-text access, see ----~----~- -~----------~----~~-- Back Issues Back are available from the ng}C-l$SUe rate. mailed Standard Rate, to of world by Deutsche Post Global Mail, Canadian mail bl!cations mail agreement number 40573520. Postmaster: Send all address Court Blackwell Inc, 350 Main Street, Malden, MA 02148-50 I 8. All for the purposes of tesearch private or critiosm or reVIew, no part of this pUDllCanO[ reproduced, stored, transmitted in any form or by any means without "mvnaht holder, Authorization items for internal and by the holder for lIbraries and other users Convri"hr CIe,rance Center 222 Rosewood Drive, Danvers, MA 01923, USA in another work, Road, Oxford OX4 2DQ, UK, UK Email: ~~2:~~~~~~'~~I~=~~ visit the website at or contacr Matt Necker" Blackwell Sport Lane, PO Box 80, Willlston, VT 05495. Phone: 1-800-866-I 684 Fax: 802-864-7749. The contents of this arc indexed or abstracted in the America: Collection; Historical Abstracts; InfoTrac Custom; Info Trac OneFile; Online Center ArticleFirst; Online Periodicals & Books. SUPREME OUR ISTORICAL So lET Y HONORARY (HAIRMAN William H. CHAIRMAN EMERITUS D. CHAIRMAN Leon Silverman PRESIDENT Frank C. VICE PRESIDENTS Vlncenc C. Burke, Jr. Dororhy Tapper Goldman E. Barrett Prettyman, Jr. SECRETARY \Varren TR£ASURER Sheldon S. Cohen TRUSTEES R. Adams L. Goldman D. Gordan, III VIGor Roben A. GWInn Herman Belz C. Haz,ud, Jr. Barbara A. Black RIchards Hope B. Renfrew Hugo L. Black, Jr. Rurh InseJ vVillLlm Bradford Frank Boardman Robb M. Rider Vera Brown l Kilpatrick Carol A. Risher Wade Burger Peter A. Knowles Rishikof Pameia Dwinnel!. Buder AI len Laeovara R. Clvillmi Gene W. Lafitte Andrew M. Coars 1. Lancaster, fl'. William Jf. B. Libin Stone J. Maureen E. Seth Waxman F Elwood Howard T WillIams Didden III Mrs. Marshall Charlton Dirt? Marshall, Jr. \V Foster \Vo[[en JohnT Dolan R. McAllister C. Duff Vincenr L. McKusick Robert E. Jucca!11 William Edlund Francis J McNamara, Jr. Ceneral CDunsel James D. lllis Gregory MIchael Miguel A. Estrada Joseph R. ModerolY DaVId T. Pride Thomas W James W. Morris, III Executive Director Fisher John M. Nannes Karhleen Shurdeff Charles a. Galvin \V Nealon Assistant Director Frank B. B. O'Hara JOURNAL OF SUPREME COURT HISTORY 2003 vol. 2.8 no. 2. PUBLICATIONS COMMITTEE E. Barrett Prettyman, JL Chainnan Donald B. Ayer Louis R. Cohen Charles Cooper James J. Kilpatrick Lucas Morel David O'Brien Michael Russ MelvIn 1. Urofsky BOARD OF EDITORS J\·1elvin 1. Uro(sky, Chainllall Herman Bclz DavId J. Bodenhamer Kermit Hall CraIg Joyce Laura Kalman Maeva Marclls David O'Brien Michael ParrIsh EDITORIAL STAff Clare Cushman, Mal1aging Ed,lelr Patricia R. Evans, Rescarcher BI,lCk,.,,\"1I Put,ji,,11,n>;, Boston, ();.. j~'nL UK GENERAL STATEMENT THE SUPREME COURT HISTORICAL SOCIETY IS a pnvare non-profit orgamzation, in the District of Columbia In '974. The IS dedicated to the collcctlon and the Court of the United Scatts. its mISSion by suppotCIng historical r(search, and books and other materials that of the Court's contribution to our nation's nch constitutional has been pubilshmg a news.lettcr, short hiscorical pIeces on the Court and articles the an annual collection has also copublishcd several books WIth Illustrated Biographies, 1789-l995 is a of all 108 the Decisions and Women's Rights: Milestones to for usc by high school students and In addicion to its active acquisitions program, which has contributed pcrmanenr collection of busts and well artifacts and memorabilia relating to the Court's 111 to by the Court Curator's Office for the benefit of the Comt's one million annual Visitors. The Society also funds outside research, awards cash on the Court, and sponsors or cosponsors various lecture scncs and other educational ro further public of the Court and its The Society has in the at 224 East website at The hccn JOURNAL OF SUPR M o HIS ORY 20 ,vol. 28, no. 2 INTRODUCTION Melvin L v ARTICLES "A More Perfect Union": Ableman v Booth and the Culmination of Federal 101 Presidents as Supreme Court Advocates: Before and After White House Allen 116 Wilson, the Court NomInation Melvin L 145 William Howard Taft and the Sandra O'CO/1lWj' The Buddl1a and the Bumblebee: The Reed and Felix Frankfurter FaSSeI/ 16 5 The That Dcflncs the Rule: Marshall's and of Court Doctrine S(OIl E Lemieux 197 CONTRIBUTORS 212 PHOTO CREDITS 2ll 2003, by rhe Court HisroricJi Jr Housc NE. ISf:lN O-I4785-32-X 10594329 Introduction Melvin I. Urofsky Those of us responsible for the contents This issue of the Journal once again of the Journal ofSupreme Court History have ranges across a wide spectrum of topics. Jus­ learned, much to our joy, that there appears to tice Sandra Day O'Connor gave the annuallec­ be no real limit on what can legitimately come ture at the Society's meeting last June, and her within the stated parameters of our mission­ topic is of great importance to students of the namely, to chronicle the history ofthe Supreme Court. Certainly no Chief Justice since John Court of the United States. We do not, of Marshall was as concerned about the Court course, run articles of doctrinal analysis, con­ speaking with one voice as William Howard sidering that area to be the purview of the Taft, a man once dismissed as inconsequential law reviews. Clearly, some doctrinal analysis is but who has been greatly redeemed by newer necessary when dealing with a court, but our scholarship that emphasizes hi s real skills at rule is that the historical aspects take prece­ leadership on the bench. dence to the doctrinal, always aware that the We have other articles in this issue on Jus­ two cannot be easily separated. tices, and this gives me a great deal of satis­ In making our selections, I am often re­ faction, since I have spent much of my pro­ minded of that wonderful quote from the leg­ fessional life dealing with biography. John D. endary Harvard law teacher, Thomas Reed Fassett, once a clerk to Justice Stanley Reed, Powell: "Ifyou think that you can think about a writes about the rather bizarre relationship be­ thing, inextricably attached to something else, tween his Justice and that great proselytizer, without thinking of the thing it is attached to, Felix Frankfurter. What is interesting is that then you have a legal mind." Those of us at the many new Justices, once they had been as­ lournal do have to think about connections. In saulted by Frankfurter, wanted as little as pos­ that way, at least, perhaps we can distinguish sible to do with him. But Reed seems to have between the legal and the editorial minds. taken it all in stride, and aside from Robert v vi JOURNAL SUPREME COURT HISTORY H. Jackson, may have had the best relationship Sharp's interest in this question led him to do with Frankfurter on the Court at that the and we are glad to publish the time. results. My article derives from a talk I was in­ The remaining two Michael 1. C. vited to at the Woodrow Wilson House on Ableman v. Booth and Scott E. in Washington. I am to the Lemieux's on v. Madison, me for me to rethink some of the issues back to my comments on doctrinal involved in that appointment. analysis and In both of these cases, of powers is, one of any effort to study the doctrine outside the con­ the favorite of teachers of both law and text of history-or vice versa-is clearly use­ political but what when past less. History and doctrine walk hand in hand or future Presidents appear as attorneys before through great cases, as they do through the the high court? And how well do they do? Allen pages of this Journal. "A More Perfect Union": Ableman v.. Booth and the Culmination of Federal Sovereignty J. TAYLOR Thesis The discourse over federal versus state jurisdiction was ingrained into American at the nation's It has been the ofour most historically significant rivalries-between Thomas Jefferson and Alexander Andrew Jackson and and Daniel Web­ ster and Robert this debate remains a contentious Court settled the on the eve ofAmerica's bloodiest conflagration.
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