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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

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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. the Court ruled that the federal union was of than the of the individual states. The 1859 Ableman v. from moral controversy, and law, and has endured as a pronouncement on the need for continuity and stability in uncertain times. The Ableman decision remains not a of the states. It was a decision wrought in re­ constant and sal ient reminder of this nation's action by one group of citizens hell-bent on most trying time, but also a the destruction of another's "peculiar" institu­ of both the confrontational elements and the tion that sought to circumvent a Supreme Court fragile nature of America's political system. decision. Throughout the past 150 years, it has The principle upon which it was the endured as the most blunt statement sovereignty of a central had been mental hierarchy within the American a controversial topic of contention since the while providing an eloquent rationale for the Constitutional Convention in 1 when del­ subordination of state governments to a cen­ egates pursued the goal ofa strong central gov­ tralized authority. Yet only through a metic­ ernment that did not encroach upon the power ulous examination of the circumstances from 102 JOURNAL OF SUPREME COURT HISTORY which it was wrought can the of that the as "the organ of the the Ableman decision be established, Constitution," had the duty not to "take any other short method ofdoing what the Constitu­ a National Definition tion has chosen. , . should be done in another of Sovereignty manner.,,6 It was his contention that though the federal government was from the Once the thirteen colonies had de­ of the states, that alone did not re­ clared their independence from Great Britain quire the states to defer to that in 1776, there arose the daunting task of unit- When the Court asserted its right ofjudi­ these states under a cial review with its decision in the 1803 case of But the newly indepen­ v, Madison, the equilibrium of dual dent Americans did not want to merely re- as delineated by the Chisholm de­ a tyrant with a native-born ver­ cision, was disturbed, As interpreted by Chief sion oftheir own design, or to allow more pop­ Justice 10hn Marshall, Article III § 2 ulous states to hold the lion's share of politi­ the Court final jurisdiction in "all Cases, in law cal clout over the smaller states, The nation's and equity, under this Constitution."7 In first constitution, the Articles of Confedera­ 1810, in the case ofFletcher Ii, Peck. the Court tion, was the initial attempt at achieving this declared an act of the goal. Under its ture unconstitutional. In his opinion, Chief Justice Marshall reasoned that was localized; but, as a unity, it failed. Under the The validity of this act, to Alexander Hamilton, "There is scarcely any well be doubte~ were thing that can wound the or the power. But character of an independent nation which we do not ,,3 Throughout the summer unconnected, sovereign power, of from twelve of the thirteen on whose no other restric­ states met in Philadelphia to draft a new consti­ tions are than may be found tution that centralized power, in its own Constitution, She is of also allowed the states to retain their a empire; she is a member ofthe American union; and that union has a Four years after the Constitution's ratifi­ Constitution the supremacy of which the Suoreme Court initiated a deter- all acknowledge, and which limits to the ofthe several with its first critical case, states, which none can claim a In a 4-1 decision, the to pass. the review of state The Court's decision in the 1812 case statutes established by the 1810 Fletcher v, United States v, Hudson and Goodwin asserted Peck decision, determined that the Consti­ that "All other Courts created by the tution vested "a in the Government possess no but what Court over a state, that there may be var­ is them the power that creates them, ious actions of the states which are to be and can be vested with none but what the annulled."4 to the majority opin­ power ceded to the Government will ion's author, Justice James "Govern­ authorize them to con fer. ,,9 in Martin ment itself would be if a pleasure to v, Hunter's Lessee (l 16), iO the Court estab­ obey or transgress with impunity should be lished its jurisdiction over appeals from state substituted in the place of a sanction to its courts, Justice Joseph OPIl1­ laws,"s In rebuttal, Justice lames Iredell ar­ ion reiected the dual sovereignty argument and CULMINATION OF FEDERAL SOVEREIGNTY 103

alist essay #59: " [E]very government ought to contain in itself the means of its own preservation.,,)3 Each of these Supreme Court decisions sparked a wave of protest in the South. In a letter to Judge Spencer Roane in 1819, ex-President Thomas Jefferson angrily proclaimed that "The Constitution, on this hy­ pothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.,,14 In hi s 1833 book, Commentaries on the Constitution of the United States, Associate Justice Joseph Story argued that the Supreme Court was the exclusive interpreter of federal law, and that its assessments were "obligatory and conclusive upon all the departments of the federal goverrunent, and upon the whole peo­ ple, so far as their rights and duties are derived from, or affected by that constitution.,,15 Al­ though Justice Story did not specifically cite Article III § 2-"The judicial Power shall ex­ tend to all Cases .. . under this Constitution"­ Justice William Johnson explained federalist ideology 16 in his majority opinion in United States v. Hudson and his writings implied it. A claim of such au­ Goodwin, when he said that "Certain implied powers thority, however, was not unusual for members must necessarily result to our Courts of Justice from the nature of their institution." of the Marshall Court. Federalist ideology, as stated by Justice William Johnson in his ma­ jority opinion in United States v. Hudson and Goodwin, maintained that "Certain implied insisted that the authority to interpret the Con­ powers must necessarily result to our Courts of stitution rested solely with the federal Supreme justice from the nature of their institution.,,17 Court. In his Federalist essay #78, Hamilton had pre­ With the 1819 case of McCullough v. viously argued that such a final authority was Maryland, II the Marshall Court interpreted the necessary result ofa constitutional govern­ the Necessary and Proper Clause as a grant ment "[t]o avoid an arbitrary discretion in the of federal power to the legislature branch that [state] courts. ,, 18 allowed for action in unforeseen crises. Tn tan­ Under Marshall's leadership, the Court dem, Marshall's opinion also confirmed state had systematically built a framework for its ju­ deference to federal jurisdiction. Cohens v. risdictional sovereignty and asserted its role as Virginia ( 1821)12 was one of several cases a power player equal to the legislative and ex­ that challenged the McCullough decision; yet ecutive branches. In Democracy in America, the effort proved futile. Tn his majority opin­ Alexis de Tocqueville was intrigued by this ion, Marshall reasserted that a political ad­ reverence and commented that ministration empowered by the people had the right to preserve itself; thus, if a govern­ The peace, the prosperity, and the ment lacked the necessary means to enforce very existence ofthe Union are vested its laws, its impotence dictated its eventual ex­ in the hands of seven Federal judges. tinction. This line of speculation was similar Without them the Constitution would to Hamilton's, as evidenced in his Feder­ be a dead letter. 19 102 JOURNAL OF SUPREME COURT HISTORY which it was wrought can the importance of that the as "the organ of d1e the A bleman decision be established. Constitution," had the duty not to "take any other short method what the Constitu­ Towards a National Definition tion has chosen ... should be done in another of Sovereignty manner. It was his contention that though the federal government was from the Once the colonies had de- of the states, that alone did not re­ from Great Britain quire the states to defer to that government. in 1776, there arose the daunting task of unit­ When the Court asserted its ing these separate, sovereign states under a cial review with its decision in the 1803 case of But the indepen­ MnrhllnJ Madison, the equilibrium of dual dent Americans did not want to re- as delineated the Chisholm de- a foreign tyrant with a native-born ver­ was disturbed. As interpreted by Chief sion of their own or to allow more pop­ Justice John Article !II § ulous states to hold the lion's share of the Court final jurisdiction in "all in law cal clout over the smaller states. The nation'8 and underthis Constitution. In first constitution, the Articles of Confedera­ 1810. in the case ofFletcher v. Peck, the Court was the initial attempt at this declared an act of the state legisJa­ 2 Under its a precarious union ture unconstitutional. In his majority opinion, was created in which political administration Chief Justice Marshall reasoned that was as a catalyst for national unity, it failed. Under the of this act, to Alexander Hamilton, "There is scarcely any well be doubted, were or degrade the power. But character of an Georgia cannot be viewed as a sin­ do not power, of 1787, on whose no other restric­ states met in to draft a new consti­ tions are imposed than may be found tution that specifically centralized power, yet in its own Constitution. She of also allowed the states to retain their regional a empire; she is a member ofthe autonomy. American and that union has a Four years after the Constitution '8 ratifi­ Constitution the supremacy of which cation, the Court initiated a deter­ all and which mined push toward federal over limits to the legislatures ofthe several states, which began with its first critical case, states, which none can claim a right s Chisholm v. GeOtgia. In a 4~ I decision, the to pass. Court, anticipating the review of state The Court's decision in the 1812 case statutes established the 1810 Fletcher v. United States v. Hudson and Goodwin asserted Peck determined that the Consti­ that "All other Courts created the tution vested "a jurisdiction in the Supreme Government possess no but what Court over a state, that there may be var­ is them by the power that creates them, ious actions of the states which are to be and can be vested with none but what the annulJed."4 to the majority power ceded to the Government will ion's author, Justice James Wilson, "Govern­ authorize them to confer.,,9 Later, in Martin ment itself would be useless, if a to v. Hunter S Lessee (1816), I 0 the Court estab­ obey or transgress with should be lished its substituted in the place of a sanction to its opm­ laws."s In rebuttal, Justice James Iredell ar­ ion CULMINATION OF FEDERAL SOVEREIGNTY 103

alist essay #59: "[E]very government ought to contain in itself the means of its own preservation.,, 13 Each of these Supreme Court decisions sparked a wave of protest in the South. In a letter to Judge Spencer Roane in 1819, ex-President Thomas Jefferson angrily proclaimed that "The Constitution, on this hy­ pothesis, is a mere thing ofwax in the hands of the judiciary, which they may twist and shape into any form they please."14 In his 1833 book, Commentaries on the Constitution oj the United States, Associate Justice Joseph Story argued that the Supreme Court was the exclusive interpreter of federal law, and that its assessments were "obligatory and conclusive upon all the departments of the federal government, and upon the whole peo­ ple, so far as their rights and duties are derived from, or affected by that constitution.,,15 Al­ though Justice Story did not specifically cite Article III § 2-"The judicial Power shall ex­ tend to all Cases ... under this Constitution"­ Justice William Johnson explained federalist ideology in his majority opinion in United States v. Hudson and his writings implied it. 16 A claim of such au­ Goodwin, when he said that "Certain implied powers thority, however, was not unusual for members must necessarily result to our Courts of Justice from the nature of their institution." of the Marshall Court. Federalist ideology, as stated by Justice William Johnson in his ma­ jority opinion in United States v. Hudson and Goodwin , maintained that "Certain implied insisted that the authority to interpret the Con­ powers must necessarily result to our Courts of stitution rested solely with the federal Supreme justice from the nature of their institution."17 Court. In his Federalist essay #78, Hamilton had pre­ With the 1819 case of McCullough v. viously argued tbat such a final authority was Maryland, II the Marshall Court interpreted the necessary result ofa constitutional govern­ the Necessary and Proper Clause as a grant ment "[t]o avoid an arbitrary discretion in the of federal power to the legislature branch that [state] courts." 18 allowed for action in unforeseen crises. In tan­ Under Marshall's leadership, the Court dem, Marshall's opinion also confirmed state had systematically built a framework for its ju­ deference to federal jurisdiction. Cohens v. risdictional sovereignty and asserted its role as Virginia (1821) 12 was one of several cases a power player equal to the legislative and ex­ that challenged the McCullough decision; yet ecutive branches. In Democracy in America, the effort proved futile. In his majority opin­ Alexis de Tocqueville was intrigued by this ion, Marshall reasserted that a political ad­ reverence and commented that ministration empowered by the people had the right to preserve itself; thus, if a govern­ The peace, the prosperity, and the ment lacked the necessary means to enforce very existence ofthe Union are vested its laws, its impotence dictated its eventual ex­ in the hands of seven Federal judges. tinction. This line of speculation was similar Without them the Constitution would to Hamilton's, as evidenced in his Feder­ be a dead letter. 19 104 JOURNAL OF SUPREME COURT HISTORY

It was a popular affirmation that the Marshal I Court had achieved its goal of nationalism-a federal union based upon an of the Massachusetts established code of Jaw. What was left for Marshall's successor, Brooke was to define the of state gov­ ernmental authority within the context of a centralized

Comity and the Pursuit of Equilibrium Constitution had only inferred a pro­ If John Marshall had established a work­ tection to the human-chattel issue, such as the able status as the states had then it was broad powers to do what was in their who redefined it as being dependent upon best interest and, thus, comity was not an iSSlle. two competing As Aves \-vas not the first case of its kind Taney utilized due process to the means decided in a state court over the issue of with the ends of social re­ its were It was a sponsibility. In doing so, he preserved the na­ demonstration of a perilolls crevasse that had tional istic of his revered over on sectionalized moral cessor by them. Tanev endeavored issues. As this divide legal cases that to create a balance between two entities in demanded decisions between legal which coexisted within spheres and moral conduct rose from the states--cases of influence."2o This tenuous re­ that eventually came under the purview of the lied upon in which the federal Supreme Court of the United States. government refrained from overextending its 25 the Taney Court power in state matters and, in turn, state enti­ ties fully enforced federal laws. tion over the slave trade; it also empow­ By the time took his seat on the ered both federal authorities to and Court in 1835, such deference had way the states to police such trade. The following to confrontation between federal and state year, the Court stated in Prigg v. governments; thprpff'lrf' (I that all state laws that impeded enforce­ the buying and ment ofthe Fugitive Slave Clause were un con­ and its impact upon comity between sepa­ for it had "constituted a fund amen­ rate were intentionally without adoption of which the left ambiguous. the Marshall era, the Union could not have been formed."26 That Court, in Gibbons v. (1824),2] had em­ same year, in v. 27 the Court con­ interstate and firmed the power of the federal judiciary to commerce--one ofthree decisions that execute established general rules embodied

the sDecial status of slaves as in judicial nrp("P.1p even if those principles in the 1825 An/elope were contrary to the decisions of state courts. the slave trade as Associate Justice Levi in his ma- Jonty for the Court in Jones v. Van usage and acquiescence. 28 asserted that all federal laws must be the 1836 Massachusetts court case Common­ enforced and that wealth v. Aves set a that was followed citizens under the authority of the Constitu­ by other northern states and made it difficult hon were bound to the law, even CULMINATION OF FEDERAL SOVEREIGNTY 105

As legal cases that demanded decisions between legal precedent and moral conduct rose from the states, the Supreme Court reaffirmed federal jurisdiction over slavery and the rights of states to enforce fugitive slave laws. doing so conflicted with their moral con­ and must science. In Strader v. Graham,29 the rationale based upon tenets of the Court reaffirmed the Jones decision by refus­ document itself. ing to grant runaway slaves their freedom and for its biased restating the sovereignty over a state's citizens the majority decision in the 1857 and their chattel property under the sanction of case Scott \1, was necessarily based federal law. Thus, in the two decades to upon a body of both philosophical trea­ Ableman v. Booth, the Taney Court had estab­ precedent. Upon close exami­ lished a vast precedent that the federal nation of the decision, it becomes obvious that government at the center of American ChiefJustice based his majority opinion tics. It was this legacy, coupled with the con­ upon a body of precedent and both stitutional protections of Article IV § 2, that state and federal statutes as they stood at the Taney drew upon when he rendered his deci­ time. sions in both the Dred Scott and the Ableman The first issue was one of property-in cases. human chattel. In his Second Trea­ tise of Government, John Locke maintained that "(I]n Governments the Laws regulate the The Taney Court and the of and the possession of land Dred Scott is determined by positive constitutions.,,3o In Stare decisis~translated from the Latin as "let Locke's though property had value in the decision stand"-is the basis for our sys­ and of it was within a social framework tem of When any court, from that the of value was determined. the county level to the is­ In his Federalist essay Hamilton echoed sues a mling, it becomes a this concept when he wrote that it was the ture essential of the government to

for "the protection of nrrmprn; ]06 JOURNAL OF SUPREME COURT HISTORY

the Constitutional Convention slave owner James Madison argued for an eventual abatement of the slave trade. Virginia tion owner George Mason made a forceful to an end to the practice: "As nations can­ not be rewarded or punished in the next world must be in this."34 New York's John

the south­ ern states, on were made implicit within its text. One of those compro­ mises was the Fugitive Slave Clause ofArticle IV § 2, which was at the heart of several Court decisions regarding chattel orooertv and comity issues. The Taney Court stated in 1847 that a In his majority opinion for the Court in Jones v. Van fugitive-slave law was "not to the Zandt (1847), Associate Justice Levi Woodbury as· Constitution.,,35 Even several states in serted that all federal laws must be enforced by sub­ ordinate jurisdictions, and that citizens under the thelnion found to be offensive "in authority of the Constitution were bound to uphold of civilization and the law, even if doing so conflicted with their moral conscience. refinement has penetrated," in rare cases did they refuse to abide federal even if they did so in An excellent exam- sometimes the course of was the 1835 New York case of Jack justice.,,31 Likewise, James Madison asserted Martin, which involved a runaway slave who in his Federalist essay #54 that "Slaves are was reclaimed by his owner. New considered as property, not as persons .. , [and] York had been among first states to abolish therefore to be in estimates of slavery, and its supreme court had ruled that the taxation which are founded on property."J2 Fugitive Slave Law was unconstitutional, its Taney made reference to this axiom in his ma­ court nonetheless declared that the Jack, jority opinion in Scott: was to be returned to his master in Louisiana, Therefore, in neither federal nor It is it would seem, to be­ territorial the authority lieve that the men of the slave- to prohibit states, who took so large a The ChiefJustice viewed the Scoll case as the Constitution of a legitimate ofcitizenship. As by Taney, just as federal and state power existed within separate or of influence. so too did citizenship.

of those who trusted and con­ of fided in them,33 which a State may confer Cnder the Articles of Confederation, the reg­ within its own and the rights of ulation of human-chattel slavery had been left as a member ofthe Union. to the sole discretion of the states. During It does not by any means follow, CULMINATION OF FEDERAL SOVEREIGNTY 107

because he has all the and the Supreme Court, decided upon similar lines, ileges of a citizen of a that he that would have a more effect upon must be a citizen ofthe United States. American jurisprudence. He may have all ofthe and A State Challenge not be entitled to the to Federal Sovereignty ofa citizen in any other State. The Supreme Court's 1859 decision in Able­ each of the states had constructed a man v. Booth was the final link in this chain of events that led to the of civil war. more stringent legal code of for blacks than for whites. Its trenchant assertion offederal jurisdictional Pennsylvania, and North Carolina had al­ sovereignty over state courts was the realiza­ lowed blacks the voting franchise-a prac­ tion of the anti-Federalist warning of seventy tice of such as South years prior: that the federal government, under the aegis of the Court, would usurp Carolina, Arkansas, and had denied free blacks citizenship The Chief Jus­ the power from the states and claim original jurisdiction for themselves.42 Because the de­ tice also referred to the fact that states such as Massachusetts, and New at the expense of the Hampshire, which accorded full of the central gov­ rights to free blacks, enforced inflexible laws ernment, the southern states were appalled by that effectively restricted interaction with it; and because it whites on every level of social contact. within the of the as well as In addition, noted that to fore, Attorney General Caleb fused to issue as they were not rM'''O", ",Pri fined by the Constitution. because Dred Scott had not been recognized as a citi­ zen by either or social standard, Taney surmised that all blacks could "claim none of the and which [the Constitution] for and secures to citi­ zens of the United States. Reaction to the Court's decision was im­ mediate. Boston's Zion sHerald and W",·ol"":Jf1n Journal proclaimed that 'The oligarchs of bolder and bolder, more and more In New Orleans, the Dail)J Picayune asserted the Court had provided '"the sanction ofestablished law, and the guarantees of the for all that the South has insisted upon in the recent struggles.,,4o What had resulted in lieu of this decision, according to President Franklin Pierce, was "a sectional in the counseling hatred and aJ I In his 1857 opinion in Dred Scott v. Sandford, Chief and which threatens at this Justice Taney noted that a year earlier, Attorney Gen­ eral Caleb Cushing (above) had refused to issue pass­ moment to rock the Union to the centre.,,41 ports to "persons of color" for they were not recog­ But it was another slavery-related ruling nized as citizens as defined by the Constitution. 108 JOURNAL OF E COURT HISTORY northern abolitionists condemned it Two years the Court's decision in Scott v. ecution of Booth was had a wave ofdissent from ever-hostile the defiance of the Wisconsin supreme court, constituent regions over its contention that which left him at liberty in defiance of the could not be denied to its lawful federal court's edicts and to thwart a owner. Thus, the entire country was federal review by ordering its clerk not to re­ to human-chattel slavery. Free-soil states re­ turn the federal writ oferror issued by the US. acted bv swiftly enacting Supreme Court "In the ofresistance by the states to federal authority," wrote historian David M. Potter in I "few acts ofdefiance such acts Ull\.,Vll"" have approached this one, which involved nul­ course open to states hostile to lification in a form that even John C. Calhoun dermine the decision. The had not advocated. for a volatile, sectionalized \Vhen oral arguments were !~rp~pnt;>{j equivalent of a lit match in a fore the Taney Court on arsenaL Ableman's case Booth and the federal In 1843, Justice John McLean had warned case against the Wisconsin supreme court were that "If convictions ... of what is or unified under one which was issued wrong, are to be substituted as a rule of action on March 7.46 ChiefJustice unal11mous in disregard ofthe law, we shall soon be without opinion condemned the Wisconsin supreme law and without On March II, court as having "subvert[ed] the very foun­ 1854, as the debates over the Kansas-Nebraska dations of this ,,47 In a clear re­

Act were raging in the House of k'pnrpcpr,_ pudiation of his earlier a crowd led abolitionist newspa­ he asserted that the per editor Sherman M. Booth broke into a Court was Milwaukee jail and released slave Joshua power exercised in this illstance has Glover, who was never been reserved to the states, no offense who was being held on a warrant issued from the laws of the United States can be punished the District Court of United had es­ by their own without the permission S. Garland of and according to the judgment of the Courts Missouri, two years of the State.,,48 With all the Justices in agree­ in a gristmillllear ment, the Court stated categorically that the had both invoked the Constitution for the uniformity of 1850 and filed a compWlU judicial nr",.,-.","I",,,t which would be ruined if missioner Winfield Smith in who, the states claimed over federal in turn, issued the warrant for Glover's arrest. diction. in the specific matter of Booth obtained a writ of habeus corpus slave Joshua Glover and the resulting from Justice A. D. Smith of the Wisconsin the Wisconsin supreme court did not supreme court that asserted Glover "was re­ possess the to circumvent federal laws strained of his and that the 1850 and edicts: "There can be no such thing as Fugitive Slave law was unconstitutional.44 unless it is conferred by a When with the Federal Mar­ or and if the shal Stephen V R. Ableman refused to release and Courts of Wisconsin possess the jurisdic­ Glover, on the that he was being prop- tion claim, they derive it either from the held in federal and thus could not United States or the State."49 be released through a state court order. After In defense ofthis statement, first and fore­ in Glover's escape, Booth and his ac­ most was the Supremacy Clause of Article VI, were arrested tried, and convicted which was either referred to or quoted CULMINATION OF FEDERAL SOVEREIGNTY 109

In 1854, a crowd led by abolitionist newspaper editor Sherman M, Booth (left) broke into a Milwaukee jail and released slave Joshua Glover (right), who was neVer recaptured. Held on a warrant issued from the district court, Glover had escaped from his owner, Benjamin $, Garland of Missouri, two years prior and had found work in a gristmill near Racine, Wisconsin, Invoking the Fugitive Slave Act of 1850, Garland got a warrant issued for Glover's arrest Booth, in turn, obtained a writ of habeus corpus {see above} that asserted Glover "was restrained of his liberty" and that the 1850 Fugitive Slave law was unconstitutional. 110 JOURNAL OF SUPREME COURT HISTORY on several occasions within the text. At the the prisoner is within its territorial heart of the case was the Wisconsin supreme limits; and it is very certain that the court's assertion that the 1850 Fugitive Slave State courts would not always agree Law under which Glover's return had been in opinion; and it would often hap­ mandated was not applicable to enforcement pen, that an act which was admitted by the states. The implications of such a rela­ to be an offence, and justly punished, tionship between federal and state courts, and in one State, would be regarded as in­ among the state courts themselves, was not lost nocent, and indeed as praiseworthy, on Chief Justice Taney: in another. 5o [1]f the power is possessed by the Wisconsin's challenge to federal authority was Supreme Court of the State of alarmingly similar to that of South Carolina Wisconsin, it must belong equally to during the Nullification Crisis of 1832, in every other State in the Union, when which the state legislature voided a national

The Supreme Court held that the Wisconsin State Supreme Court had overstepped its le­ gal authority when it refused to prosecute those who had, by force, freed Glover from cus­ tody. Pictured is a drawing of ,. T.I T.H SWi\ .M P . a runaway slave. CULMINATION OF FEDERAL SOVEREIGNTY 111 tariff under the premise that it was indepen­ state legislation in Fletcher v. Peck (1810) dent to do what it deemed necessary to its self­ and United States v. Hartman and Goodman survival. Not only did Taney confirm that the (1812), and interpreted by Taney as "justly re­ statute was "fully authorized by the Consti­ garded as indispensable, not merely to main­ tution of the United States," but he also ar­ tain the supremacy of the laws of the United gued that Glover had been released within the States, but also to guard the States from any en­ limits ofstate sovereignty against the property croachment upon their reserved rights by the rights of his owner, the latter of which were General Government. ,,55 The precedent for the fully protected under the force of federal law, Court's majority opinion was wholly consistent as stated by Scott v. Sandford. 51 Therefore, the with Abelman, in that it was "the duty of this Wisconsin supreme court had overstepped its court, when exercising its appellate power, to legal authority when it refused to prosecute show plainly the grave errors into which the those who had, by force, freed Glover from State court has fallen, and the consequences to custody. which they would inevitably lead."56 Taney ar­ A concurrent constitutional principle gued that "[I]f such controversies were left to cited by Taney within the text was the Nec­ arbitrament ofphysical force, our government, essary and Proper Clause of Article I § 8, state and national, would soon cease to be in which Congress had seen fit to "carry Governments of law, and revolutions by force into execution the powers vested in the judi­ would take the place of courts of justice and cial department.,,52 By doing so, the Supreme judicial decisions.,,57 To reinforce this point, Court had been empowered to exercise its au­ the Court reasserted the primary premise of its thority as it deemed useful within the confines majority opinion in Jones v. Van Zandt (1847): ofthe law. In tandem, the Court contended that that citizens under the Constitution must obey habeas corpus, embodied in Amendments III the law, even if doing so was counter to their through VII, was also essential to the main­ personal conscience. Within the text of the tenance of the established hierarchy between Ableman decision itself, Taney stated this state and federal courts. "No State judge or premise as follows: court, after they are judicially informed that the Now it certainly can be no humilia­ party is imprisoned under the authority of the tion to the citizen ofa republic to yield United States," Chief Justice Taney asserted, ready obedience to the laws adminis­ "has any right to interfere with him, or to re­ tered by constituted authorities. On quire him to be brought before them.,,53 the contrary, it is among his first and At the heart of the Court's assertion of highest duties as a citizen, because definitive authority over constitutional mat­ free government cannot exist without ters was ChiefJustice Taney's reading ofArti­ it. 58 cle Ill, in which judicial power included over­ sight of "every legislative act of Congress, Chief Justice Roger Brooke Taney had whether it be made within the limits of its begun his public life as a close advisor to delegated powers, or be an assumption of President Andrew Jackson and had assumed power beyond the grants in the Constitution.,,54 the Jacksonian premise of shared power be­ The uniformity of law being indispensable tween federal and state governments. Th.rough­ for effective and efficient government in a out his career on the Bench, h.e sought to cre­ multitiered system, by necessity one arbitra­ ate a union in which both federal and state tor had to possess the final authority-which governments worked concurrently, with sep­ the Framers placed in the judiciary. In turn, arate, yet defined roles that complemented the Court's guarantee of such authority was one another. As demonstrated by the Ableman judicial review, first asserted in Marbury v. decision, Taney ultimately concluded that a Madison (1803), redefined as applicable to balance could not be ascertained between these 112 JOURNAL OF SUPREME COURT HISTORY two entities that the to jurisdictional An excel­ spheres of influence" was unworkable, lent example of its impact on federal jurispru­ A forceful assertion of federal dence was Tarble s Case ( the Court had thus been forced: We are sensible that we have extended era! versus state supremacy, Edward I arble, an the examination of these decisions I soldier who had enlisted in the beyond the limits by any in­ armed forces while still a minor under a false trinsic in the questions. But name and without his father'S consent, was the decisions in question were made incarcerated in Madison, Wisconsin. On Au­ by the tribunal ofthe gust 10, 1869, a court commissioner for Dane State; and when a court so elevated in Wisconsin issued a writ ofhabeus cor­ its position has a judg­ pus at the behest of Tarble's who had ment which, ifit could be maintained, the federal government with would subvert the very foundations of his son "confined and restrained of his lib­ this it seemed to be the and therefore maintained that he "was duty of this court, when exercising entitled to the custody, care, and ser­ its appellate power, to show plainly vices ofhis son ,,,62 The case was before the grave errors into which the State the Court in April 1870, and the Court handed court has fallen. and the conse­ down its decision in March 1872, In his ma­ quences to which would in­ Justice Stephen 1. Field cited evitably lead,59 Abfeman several times throughout his text. In the Court reinforced the Wisconsin that federal and state gov­ supreme court had ernments are "distinct and indenendent" and view of the jurisdiction lawfully "restricted in their spheres of exercise."6o Such circumstances warranted not of each other, and supreme within only a definitive statement ofsovereignty from spheres,"63 the body, but fully defined justification of that a century later, in rounger v, declaration, In this trenchant statement-the Harris (1971), the Court ruled that there was of the decision itself-Chief Justice jurisdiction based upon be­ As a defen­ tween federal and state dant who had not been indicted or arrested dicial process, whatever form It may assume, could not be blocked on the basis can have any lawful outside the limits prosecution, John Harris, Jf. was ofthe whom it Los Attorney Evell is and an attempt to enforce it beyond with a violation of the California these boundaries is less than lawless vioience,,,61 Act, which prohibited "any doctrine or advocating, or aiding and the commission of a crime,,,64 Harris claimed Application of the Ableman Decision the act was unconstitutional because it violated has since been his under the First Amendment. In his the Thirteenth, Fourteenth, and Fif­ majority opinion, Justice Hugo Black cited the teenth the Ableman decision has Ableman decision when he wrote that the Court remained relevant. Its bold and con­ "[does] notthink this allegation, even if true, is fident statement of federal government ascen­ sufficient to the equitable jurisdiction of dancy has been utilized in a variety all the federal courts into play to enjoin a pending of which were in need of a clarification with state prosecution. ,,65 CULMINATION OF FEDERAL SOVEREIGNTY 113

These decisions have reinforced Chief notion that federal and of in- but that in all cases the states answerto the federal government. Because the Ableman more so than any other opinion of the Court, sustained this relationship through a combination ofsound reason and unanimous ofthe it has remained a stable benchmark in an of the Constitution. It is also the reason why, a after his Justice Felix Frank- Taney: intellectual power of his opinions and their enduring contribu­ tion to a workable adjustment ofthe theoretical distribution of authority between two govern­ ments for a peopJe place second only to Marshall in the constitutional history of our Chief Justice Roger B. Taney skillfully developed the notion that federal and state authority inhabited sep­ arate spheres of influence, but that in all cases the Conclusion states answered to the federal government. The unique nature of the American national character is that citizens were loyal to both Finally, Associate Justice Sandra Day their state and to the central union, born out O'Connor, within her concurring opinion in of the need of mutual protection; but estab­ Brockett v. Inc (1985), <::VrYlmlf'tr-v of authority between these wrote that: was a most arduous task. At the Court has long that outset of the nineteenth cenhlry, the Marshall concerns for and federalism Court the of the consti­ may federal courts to abstain tution and Jaws of the United so far as from deciding federal constitutional they can be by judicial authority.,,69 issues that are entwined with the in- By redefining the roles of federal and state of state law. 66 governments and disallowing any and all chal­ lenges to that jurisdictional relationship, Roger The case involved a First Amendment chal­ Brooke Taney completed the work of the Federalists. This he did with the doctrine of scheme crimi­ federal in Ableman v. Booth. nal and civil penalties for those who deal with obscenity or prostitution. In the view of those who challenged the ENDNOTES strict regulation indecent and offensive !62 us. (21 How.) 506 (1859). materials was too vague to be applicable. The 2The Rev. John Witherspoon of New Jersey-a signer United States Court of reversed the of the Declaration of fndependence- -conveyed his law on these grounds. When the fidence in the Articles of Confederation, in that they were "the present enlightened state ofmen 's minds" Quoted by Court overturned the it was the Able- Thomas Jefferson in Thomas Jefferson: Writings, ed. man decision that provided the necessary Merrill D. Peterson (New York: Library of America, foundation for the Court's decision. 1984).29. 114 JOURNAL OF SUPREME COURT HISTORY

3Essay # 15 in Alexander Hamilton, James Madison, and 26Prigg v. Pennsylvania, 41 US. 611 (1842). John Jay, TIle Federalist, ed. Benjamin Wright Fletcher 2741 US. (16 Pet.) I (1842). (Cambridge: Harvard University Press, 1961), 156. 2846 US. (5 How.) 215 (1847). 4Chisholm v. Geo/gia, 2 US. (2 Oal.)419, 420--421 (1793). 2951 US. (10 How.) 82 (1851). 5Ibid.,422. 30John Locke, Two Treatises of Government, ed. Pe­ 6Ibid.,433. ter Laslett (Cambridge, UK: Cambridge University Press, 7US. Constitution, Art. III, § 2. 1960),320. SFletcher v. Peck, 10 US. (6 Cranch) 87 (1810). 31Essay #70, The Federalist, 451. 9Uniled Siaies v. Hudson and Goodwin, 11 US. (7 Cranch) 32Essay #54, The Federalist, 370. 32,33 (1812). 33ScOII v. Sandford, 60 US. (19 How.) 417 (1857). 1014 US. (I Wheat.) 304 (1816). 34Quoted in Richard B. Morris, Witnesses at the Cre­ 1117 US. (4 Wheat.) 316 (1819). ation: Hamilton, Madison, Jay, and the Constitu­ 1219 US. (6 Wheat.) 264 (1821). tion (New York: Holt, Rinchart, and Winston, 1985), 13Essay #59, The Federalist, 394. 215. 14Thomas Jefferson to Spencer Roane, 6 September 1819, 35Jones v. Van Zandl, 46 US. (5 How.)215, 229 (1847). in The Writings of Thomas Jefferson, ed. Albert Ellery 36Jack v. Marlin, 14 Wend. 507, 532 (NY 1835). Bergh (Washington, DC: The Thomas Jefferson Memorial 37ScOII,405. Fund, 1904), 15:213. 38Ibid., 404. 15Joseph Story, Commentaries on the Constitution of 39"'1 he Late Decision of the Supreme Court of the United the United States (Boston: Hillard, Gray and Company, States," Zion~' Herald and Wesleyan Journal, 18 March 1833), I :357 (sec. 383). 1857,2. 16US. Constitution, Art. III § 2. 40"Citizenship," New Orleans Daily Picayune, 21 March 17Uniled Slaies v. Hudson and Goodwin, 34. 1857,1. 18Essay #78 in The Federalist, 496. Within the text of 41"President Pierce at Home," Nevv York Daily Times, 3 his 1821 Cohens opinion, Chief Justice Marshall agreed October 1856, 1. with this approach: "[A] constitution is framed for ages to 42"Essays by The Impartial Examiner," Letter to the come, and is designed to approach immortality as nearly Virginia Independent Chronicle, 27 February 1788; as human institutions can approach it. Its course cannot al­ reprinted in The Complete Anti-Federalist, ed. Herbert ways be tranquil. It is exposed to storms and tempests, and 1. Storing (Chicago: University of Chicago Press, 1981), its framers must be unwise statesmen indeed, if they have 5: 182. not provided it, as far as its nature will permit, with the 43Jones v. Van Zandl, 13 Fed. Cas. 1047, 1048 (C.C.O. means of self-preservation from the perils it may be des­ Ohio, 1843). tined to encounter." Cohens v. Virginia, 19 US. (6 Wheat) 44Background information culled from Ableman v. Boolh; 264, 387 (1821). Uniled States v. BOOlh, 62 US. (2 I How.) 507-508 (1859). 19A1exis De Tocqueville, Democracy in America, 450avid M. Potter, The Impending Crisis, 1848--1861 ed. Henry Reeve (New York: Vintage Books, 1990), (New York: Harper & Row Publishers, 1976), 295. I: 151. 46Jbid.,507-14. 20The Chief Justice proclaimed this doctrine in his ma­ 47Ableman,525. jority opinion for the 1837 case Charles River Bridge v. 48Ibid., 5I 4-15. Taney made reference to this ideology Warren Bridge: "[T]he object and end ofall government is within the text of the majority opinion: "And although the to promote the happiness and prosperity ofthe community State of Wisconsin is sovereign within its territorial lim­ by which it is established, and it can never be assumed that its to a certain extent, yet that sovereignty is limited and the government intended to diminish its power of accom­ restricted by the Constitution of the United States. And plishing the end for which it was created." Charles River the powers of the General Government, and of the State, Bridge v. Warren Bridge, 36 US. (II Pet.) 420, 547 (1837). although both exist and are exercised within the same 2122 US. (9 Wheat.) 1(1824). territorial limits, are yet separate and distinct sovereign­ 22The Taney Court reaffirmed the Gibbons stance with ties, acting separately and independently of each other, its decisions in New York v. Miln, 36 US. (II Pet.) within their respective spheres." Ibid., 516. 102 (1837), The License Cases 46 US. (5 How.) 504 49Ibid. The issue of initial contention was whether a state (1847), and The Passenger Cases 48 0. S. (7 How.) 283 court had the right to "supersede and annul the proceedings (1849). of a commissioner ofthe United States." More serious was 23The Anlelope, 23 US. (10 Wheat.) 66,115 (1825). the second charge: that the Wisconsin state supreme court 24CommonweaIlh v. Aves, 18 Pick. (35 Mass.) 193, 215 had exercised authority over the proceed ings andjudgment (1836). of a district court that was beyond its sphere of influence. 2540 US. (15 Pet.) 449 (1841). Ibid., 513. CULMINATION OF FEDERAL SOVEREIGNTY 115

SOlbid., 515. 62Tarble:~ Case, 80 U.S. (13 WaiL) (1872). Slfbid.,526. 63Ibid., 407. In tandem, the Court questioned "[w]hcther 52Ibid., 521. any judicial officer of a State has jurisdiction to issue a 5Jlbid., 524. writ of haben, corpus, or to continue proceedings under 54/bid.,520. the writ when issued, for the discharge of a person held 55lbid, The ChiefJustice added that urAls the Constitution under the authority, or claim and color of the authOrity, of is the fundamental and supreme law, if it appears that an Ihe United States, by an officer oflhat government." Ibid" act of Congress is not pursuant to and within the limits 402, of the power assigned to the Federal Government, it is 64Califorma Penal Code §§11400 and 11401, quoted in the duty of the courts of the United States to declare it Younger Harris,401 U.S. 37 (197l). unconstitutional and void." 6s/bid.,42. 56Ibid,,326, 66Brockell v. Spokane Arcades. Inc., 472 U,S. 491, 508 57/bid., 521. ( 1985). 58Ibid" 525. 67 Ibid., 493. S9/bid" 68Quoled in Bernard Schwartz, A History ofthe Supreme GO/bid. Court (New York: Oxford University Press, 1993), 104. 6t/bid,524, 69Cohens, Presidents as Supreme Court Advocates: Before and After th White House

Prologue

men who took the oath also appeared before the Court of the United States advocates. From Senator John Adams at the outset ofthe Marshall Court to Richard M. Nixon the mark of the Warren Presidents before the Court on such varied and important topics as land scandals in the at home and on the seas, the authority ofmilitary commissions over civilians the Civil as an aftermath of the Alaskan and the sensitive intersection between the to personal privacy and a free press. Here, briefly, are stories of men knows as Presidents performing as appellate lawyers and oral advocates before the nation's highest court.

John Quincy Adams: Senator­ that employment, with legislation removing Lawyer-Diplomat-Congressman job appointments from judges' purview and them at the disposal of the President. As a young man, John Adams was ad­ So Adams was out of work except for a small mitted to practice law but grew bored with law practice and a part-time teaching position it and performed diplomatic chores for the at Harvard. He could now start a political ca­ Washington and Adams administrations in the reer of his own. I 1790s. Judge John Davis of the U.S. district Adams was eiected to the U.S. Senate by court in Massachusetts then named Adams the Massachusetts legislature in 1802, but the Commissioner of Bankruptcy, Senate did not convene until March 4, 1803. By federal employee with a regular the time he arrived at the Capitol, space had fi­ coming of the Jefferson administration ended nally been found in that crowded building for PRESIDENTS AS SUPREME COURT ADVOCATES 117 the Supreme Court of the United States, and nent Jeffersonian lawyer from Maryland. Adams became a regular spectator at its ses­ Adams' opponent, once again, was Martin, sions. The Courtroom was only a few steps the great "Federalist Bulldog" from Maryland. from the Senate chamber, and Adams was On February 25, 1804, Chief Justice Marshall inspired to be admitted to practice before the ruled in favor of Head and Amory, Adams' Supreme Court. clients, and remanded for new trial. After ar­ Adams made his debut before the guing his first two cases before the Supreme Supreme Court early in his Senate term. On Court with mixed results, Adams wrote to a February 23 and 24, 1804, Senator Adams friend, "1 have never witnessed a collection of argued before the Supreme Court in Church such powerful legal oratory as at this session v. Hubbarl,2 a case from the federal circuit of the Supreme Court.,,4 court in Massachusetts involving a maritime Later in life, Adams would say harsh insurance policy excluding coverage for il­ things about President Jefferson,s but during Iicit trade with the Portuguese in Brazil. De­ his single partial term in the Senate, he sup­ spite Adams' best efforts, Chief Justice John ported the President's embargo and efforts to Marshall remanded the case on a techni­ purchase Louisiana. Senator Adams' pro-em­ cal point for trial in order to authenti­ bargo stance did not endear him to his fed­ cate certain edicts of Portugal. Adams' sea­ eralist constituency and the Massachusetts soned opponents in this case were Luther legislature took the unusual act of, in effect, Mm1in and Richard Stockton. In the same terminating his term before he had served 1804 term, Adams argued Head and Amory its full six years. Adams' Senate stint thus v. Providence Insurance Co} a case from ended prematurely on June 8, 1808, by resig­ the federal circuit court in Rhode Island. nation. Historian Allan Nevins described it as a His co-counsel was John T. Mason, a promi­ "rebuke";

Senator John Quincy Adams (left) found himself opposing counsel to Luther Martin (right) in several cases he argued before the Supreme Court. Martin, known as the "Federalist Bulldog," was a frequent advocate who had effectively represented Maryland at the Constitutional Convention in 1787. 118 JOURNAL OF SUPREME COURT HISTORY

Adams's term as Senator was to ex~ Massachusetts,~ who ruled for Peck. Adams ar­ March 4, 1809. By his gued the before the Supreme Court on successor so many months before it March 2, 1809,from II :00 A.M. t04:00 was necessary to do so, the Mas­ Federalist Congressma from South sachusetts administered a Robert Goodloe Harper, was co-counseL stinging and rebuke to him. posing counsel was Luther Martin, argu­ The ing for Fletcher. found Adams "dull and tedious."9 him to resign forthwith. A few after the arguments in The son ofJohn Adams lost his office Adams wrote in his memoirs about for supporting Thomas Jefferson!6 the This morning the ChiefJustice read a Former Senator Adams' next written opinion in the case ofFletcher before the Supreme Court was delivered in v. Peck. The of the circuit Long's Tavern on Hill, near the present court was reversed for a defect in the location of the Court building, on pleadings. With regard to the merits 9, 1809. The case, Hope Insurance of the case, the Chief Justice added at Providence v, Boardman and that, circumstances as the Pope/ again came from the federal circuit court are, only five judges attended, court in Rhode but this time Adams there were difficulties which would the insurance company. His op~ have orevented them from any ponent in was Jared an ex­ at this term had the pleadings perienced advocate who had been a mem­ been correct; the court the more read­ ber of the Constitutional Convention of 1787 forbore and who would become the unsuccessful vice­ of the presidential candidate of the Federalist not but see that at the time when the in its last gasp. The case itself is of little con­ covenants were made the parties had sequence, although Adams' own notes and at notice of the acts covenanted least two indicate that he was un­ that this was not to be taken as part prepared for questions relating to diversity of of the clerk's opinion, but as a mo­ tive why they llad thought proper not to get one at this term; I then re­ quired whether the court had formed endeavor, Fletcher v. an opinion upon the issue made upon was a major case involving the notorious land­ the special to which be an­ fraud controversy in the western area of Geor­ swered that on that and the of gia called Yazoo now in the that the opinion Adams represented John Peck of who of the court had been the de­ had ourchased land in Yazoo provided fendant they would have given it. I 0 legislature in 1794. Geor­ soon rescinded the authorization for the Adams' memoirs also describe going to James Yazoo land grants, and Robert Fletcher of Madison's from the a "friendly Court in the two-hour lunch break from oral argument: diversity of jurisdiction, dragging March 4. Going up to the Capitol, r the federal judiciary into the southern land met Mr. Quincy, who was on his way The litigation came before Associate to to get a passage to Justice William Cushing, sitting on circuit in Baltimore. The court met at the usual PRESIDENTS AS SUPREME COURT ADVOCATES 119

hour, and sat until twelve. Mr. \'lartin Adams' experience arguing before the continued his argument until that Court did not contribute to his re­ and then until two. luctance to a on the high I went to the and witness­ Bench. When Justice Cushing died on Septem­ ed the inauguration of Mr. Madison ber 13, 1810, President Madison to as President ofthe United States. The him first with Levi Lincoln and then House was very much and with Alexander both without success. its appearance very magnificent. He Madison then nominated Adams for that seat made a very short speech, in a tone on the Court, and the Senate at once of voice so low that he could not be all without his after which the. official oath Adams turned down the was administered to him the Chief­ "1 am also, and al­ Justice of the United the four ways shall be, too much of a political other Judges of the Supreme Court for So the Court appoint­ being present and in their robes. Af­ ment went to who had suc­ ter the ceremony was over I went to ceeded him as counsel in Fletcher v. Peck I3 pay the visit ofcustom. The company The time lag between death and the was received at Mr. Madison's house; appointment was severely extended by he not yet removed to the the time required to word to and from President's house. Mr. Jefferson was Adams in Russia. among the visitors. The Court had adjourned until two o'clock. I there­ Old Man Eloquent Back to the Court fore returned to them at that hour. Mr. Martin closed the argument in Adams served as President from 1825 to the cause of Fletcher and Peck; after to Andrew Jackson in the era ofthe com­ which the Court I came mon man. He was elected to the US. House of home to dinner, and in the ",pnrp,,,p"""'"''''~Q in 1830, and his 18 years of went with the ladies to a ball at service there represent the best use in honor of the new Presi­ ever made of the talents of an ex-President. dent. The crowd was excessive-the He became known as a Conscience a heat and the entertain­ group from New that was ment bad. Mr, Jefferson was there. slavery before the Civil War. About midnight the ball broke Up,ll Adams was on virtually every issue, and was indifferent to or per­ The case was set over for fUriher ar­ sonal criticism. His last gasp on the floor ofthe gument in 1810, resulting in Chief Justice House in February 1848 14 was in to Marshall's landmark decision to the rea­ the of medals to certain officers who of Marbury v. Madison to state had served in the Mexican War. (Adams, along way of the Contract Clause. with and Abraham nmNe\/er. James Madison had offered­ Lincoln, had opposed the Mexican War.) He and Adams had also vigorously and continuously the Minister to as gag rule that prevented anti­ counsel for Peck. He was replaced filed in the House of Massachusetts. Adams would not ap­ pear in any US. courtroom again until 1841, when he made a comeback nent of (described ist lawyers Lewis and Roger Sherman 120 JOURNAL OF SUPREME COURT HISTORY

Baldwin to hire him in 1841 to argue before the Supreme Court on behalfofthe Amistad muti­ neers. These Africans had been taken as slaves bound for Cuba, but along the way their charis­ matic leaders and eventually the ship was taken into near Island, New York. The Africans were taken into custody In where proceedings were held before US. District

Smith sitting on circuit. Some of the Africans were indicted a federal grand in Connecticut on of and murder. Justice Thompson and convened the federal circuit court, ruled that there was no over the crimes that took on the high seas in a foreign-owned and dismissed all crim­ inal charges. At the same the circuit court also considered two writs of habeas cor­ Former President John Quincy Adams argued the pus to release aU the Africans from fed era I cus­ Amistad case before the Supreme Court in 184l. tody. Justice Thompson declined to release the A vociferous opponent of slavery, he eloquently rea· soned that the slaveholders, not the African muti· Africans because were subject to neers, were the criminals. Pictured is Joseph Cin· ble claims that were before the US. quel, leader of the revolt aboard the Spanish slave District Court in Connecticut. Judson ship. heard these claims in January 1840 and or­ dered the Africans returned to their African homeland. 1841, the case was be­ This gave Adams more time to worry about fore the Supreme Court by virtue of the ap­ his performance. In his diary he prayed, peal of US. William Holabird, no "I implore the mercy of Almightv God so to doubt at the instance of the Van Buren control my temper, to and administration,lS The principal architect ofthe to give me utterance, that I may prove myself case in Connecticut was Baldwin, the in every respect equal to the task."16 He later son of Sherman, a member of the "I walked to the Capitol with a thor­ Constitutional Convention from Connecticut. bewildered bewildered as to Adams visited the Africans on a trip between leave me but fervent prayer, that pres­ Massachusetts and Washington o.c. and met ence of mind may not utterly fail me at the trial their leader. His memoirs indicate that he was I am about to go through."I? with them and their cause. His memoirs indicate that he was greatly The case came up for at the time concerned about the precedental value of two William Henrv Harrison and John were mid-1820s decisions ofthe Court in- on March 4, 1841 In those slaves from a called The Ante­ lengthy were heard in a sin- lope. Those cases had been Francis case and often ran for days. Adams Scott on behalf of the Africans under for the better part of the first but Asso­ the of the American Coloniza­ ciate Justice Philip Barbour died that and tion Key's principal tenet was that the anmment was oostooned until March 3. the free blacks from the slave shiDs should be PRESIDENTS E COURT 121 returned to their native Africa. Adams con­ Africa, in pursuance of the act of the ferred with about the of the 3rd of March 1819; as to this, Antelope precedent, having been involved in it ought to be reversed: and that the the incident first as Secretary of State and later said negroes be declared to be free, as President. 18 But by 1841, Adams had a dif­ and be dismissed from the custody of ferent political agenda. He was incensed that the Court, and go without 19 Martin Van Buren, in an effort to be re-elected Only Justice Baldwin dissented. No as would to the southern Adams nominee was on the Court in 1841.20 interests in his own When Adams up the of the an adverse decision made eral court in Connecticut. Thompson was generally known as to slavery, Judge Judson was not, and distinctly uninterested in the Africans. his decision in favor of the Africans had come Adams even tried to get some legislation as something of a through to assist in the return of There is no verbatim of Adams' the Africans, but did not succeed. Finally, in argument, but he published his own written November, a group of American missionaries document-undoubtedly corrected-which is escorted 35 ofthe Africans on a ship from New extensive. The case was for the United York to Sierra Leone. States Attorney General Gilpin. reasoned that nrl'1,ttprpt1 docu­ mentation that the Africans were slave prop- should be Historian Hudson Parsons describes Adams' eloquent If one llaIJU',Il~,U to stumble onto an obscure argument: Marshall Court in Williams v. 21 Then came with a wither­ it would appear to be of little import Read­ ing attack on the Van Buren admin­ ing the very tedious description of the contro­ istration and the minister's versy would add to that impression. The case charge that the Africans were robbers involved I acres ofland in Lincoln County, and "Who were the merchan­ and the interests of the Norris and dise and who were the robbers'?" he Williams families. Yet if one gets the I I asked. technicalities of and early ofthe the merchan­ dise were the robbers and the robbers societal were the merchandise. The merchan­ western Tennessee. It was dise was rescued out of its own hands, what and the robbers were rescued out of over land titles in western the hands of the robbers. struck at the heart of Jacksonian dominance of Tennessee politics. Justice P. decision in the case In 1784, homesteader Ezekiel Norris narrowly concluded: made a land claim in a public record called Upon the our opinion is, that the Taker of western land, but the mar- the decree of the Circuit Court, af­ of the document stated "detained for non­ that of the District Court, payment. The land was then a of North to be except so far as but in 1789 the state ceded its west­ it directs the negroes to be delivered to the United States of Amer­ to the to be transported to the to land titles 122 JOURNAL OF SUPREME COURT HISTORY

where the entries had been made accordmg to A person holding a later warrant who law. That western became the state of had improved land could be evicted as a squat­ 'Itmnessee in 1796. In 1803, the states ofKorth ter. Congressman Davy Crockett weighed in Carolina and Tennessee made a compact that bills to ceded to Tennessee the power to grant and pro­ cupants of the land and to nrp,_p,'nnt tect titles to all claims of land lying in the state land rights to But, alas, he left the that had previously been reserved North went west, and died at the Alamo Carolina. Three years later, ceded before the bills became law. Norris to Tennessee all of the rights it retained in the legislature ofTennessee to pass a special act western but at the same time drew to orotect his land title, but the special statute a north/south line across the state and lim­ in conflict with the ited the collection of warrants to lands east Section 25 of the Judi- of the line. Between J794 and 1815, Act of 1789. a series of federal statutes with The Norris case attracted the participation the process the title to particular of celebrity counsel. The interests of Oliver lands. Williams in Norris's 1 acres were rep­ Limiting the area for the collection resented by Tennessee Congressman James of certificates and land warrants to Knox along with Thomas Hart east Tennessee only did not work. So west then a United States Senator from Missouri. Tennessee was opened up for that purpose, and Polk was a star in the House of Rep­ the seeds were sown for a major political battle. where he was principally known Bad records and speculation in warrants were the political water for Andrew Jackson. Also associated with Jackson, Benton had been a resident of Tennessee before mov­

for five consecutive tenns between 1820 and 1850. the interest was John Eaton, then a Senator from Tennessee and later Sec­ retary of War. He was married to Peggy who became a cause ceh!bre dur­ one of the Jackson administration's scan­ dals. Eaton's co-counsel was Hugh Lawson White, a Senator from Tennessee who had succeeded Jackson, in the Senate and often led the anti-Jackson faction. It would be hard to find four more powerfully politi­ cians as counsel in this obscure land case from and their presence in Norris says more about the political and eco­ nomic issues underlying the case than the pub­ lished decision of the Court might indicate. James Polk's only appearance before the Court oc­ The case was argued I J and 12, curred in 1827, when he represented a Tennessee 1827. On the first day, Eaton led off for the homesteader in a complex and political case involv­ ing land titles. At the ttme, Polk was representing plaintiffs, followed by Polk for the defen­ Tennessee in the U.S. House of Representatives. dants. The next day, Benton for the PRESIDENTS AS SUPREME COURT ADVOCATES 123

ident of the United States for a single term from 1845 to 1849. He never appeared before the Supreme Court again.

Abraham Lincoln: A One-Term Illinois Congressman Argues

Thanks to the scholarship ofG. Cullom Davis at the Lincoln Legal Papers Project, we now know much about Lincoln's activities as a lawyer between 1836 and 1861. In his re­ cent book, Lincoln, David Herbert Donald also gives a good and insightful general analy­ sis of Lincoln's lawyering talents, particularly as a courtroom litigator. 23 Lincoln tried hun­ dreds ofjury cases, argued many cases before the supreme court of Illinois, and presented many cases in the federal courts in Spring­ field and Chicago. During the time Lincoln practiced law, Illinois was in a federal cir­ Representative Abraham Lincoln argued a minor case cuit with Indiana, Ohio, and Michigan, and before the Supreme Court in 1849. His name is as­ sociated with four others, but his participation was John McLean of Ohio was the Supreme Court probably minimal. Justice riding that circuit. Lincoln and McLean came to know each other well. In fact, Lincoln defendants, with White closing for the plain­ was employed in the patent case of the Cyrus tiffs. The arguments focused on highly tech­ McCormick reaper, originally filed in Chicago nical land-law questions. One question that but then transferred by Justice McLean for trial attracted the Supreme Court's attention was in Cincinnati24 Lincoln followed the case to whether the special act of the Tennessee leg­ Cincinnati, but was treated badly by other co­ islature in favor of Norris's land claims vio­ counsel, including seasoned advocate Edwin lated the Contract Clause, after the fashion of McMaster Stanton and patent lawyer George Fletcher v. Peck. That issue was raised by Chief Harding. Stanton froze Lincoln out of discus­ Justice John Marshall, but was summarily dis­ sions about the reaper case and would not allow missed. Marshall, for all the Court, decided him to participate. that it did not have jurisdiction in the land con­ Lincoln served a single term as a Whig troversy and sent the case back to the supreme in the U.S. House of Representatives, from court of Tennessee. 1847 to \849. While in Washington, he ar­ In spite ofthe celebrity status of the coun­ gued a land-title case, William Lewis v. Thomas sel, the case settled nothing of the western Lewis,25 at the time of President Taylor's in­ Tennessee land controversy. As Polk's biogra­ auguration. Lincoln was admitted to practice pher asserts, "[T]his Tennessee land question before the Supreme Court on March 7, 1849, was revived from time to time by both Polk and the day of the argument, which continued on 'Davy' Crockett, and was one of the rocks on March 8. Chief Justice Roger B. Taney rul .1 which the Jackson party in Tennessee would against Lincoln in Lewis on a technical issue split into fragments.,,22 Polk later served as of the statute of limitations under the law of Speaker of the House for two terms, briefly Illinois, speaking for the entire Court except as governor of Tennessee, and then as Pres­ Justice McLean, who dissented. (One of the 124 JOURNAL OF SUPREME COURT HISTORY

Act of 1789 was is no evidence ofany serious He who had acted in the case while served with distinction in the Union Armv. be­ on the circuit court of 26 could came a breveted and in the Court.) Lincoln the Civil War was elected to the US. House McLean for the of where he stayed until he can preSidential nomination in 1856. There is became President in 1881. no evidence that decision contributed In to the coolness between the Chief Justice and Lineoln in the late 1850s and earlv I 860s, but it could not have helped their Re­ cent scholarship gives Lincoln good for his competence in his only ap­ commission and convicted pearance before the Court. was sentenced to death Although he did not again argue before for involvement in a to release and arm the Court. Lincoln was hired in four other Confederate so could partici­ in the invasion oflndiana. Garfield's co­ counsels were a successful New dest brother of 'tpnn{'11 when an Amer­ the Supreme Court who remained in the case. ican commander burned the town during the McDonald had been attorney of Indi­ War of 1812. later permitted the ex­ ana and was later to serve in the US. Senate. A pelled inhabitants to reclaim their land. fellow Disciole of Christ, Smith had served as filed an to do so. One argument was General and of State in the that had made a similar claim under Buchanan administration, and had remained the same federal statute for land in Detroit to both the Union and the Democratic and was not entitled to "double-dip. Lincoln's name got associated with the case on a printed Garfield was admitted to practice before argument for that Lincoln did the Court at the outset of the week- not prepare. Salmon P. Chase argued the case long in Ex parle Milligan. 30 He ar­ against and lost. Lincoln planned to after Field, most ofone on a argue more cases before the Court, historical of the uses of military com­ but the presidential nomination and election in missions and martial law since 1322. His COI1­ 1860 drew his focus instead. clusion is worth

Your decision will mark an era in James A. Garfield: at Top American The and final Of all the subjects of this James A. settlement of this great will

Garfield is the O'rp·"jp

however formidable, without destroy­ P. Chase, also from Ohio, who described him ing the bulwarks of law, can, by the as a "young, brilliant, and rising public man." might of its armed millions, preserve Garfield and Chase played chess, which brings and defend both nationality and lib­ to mind Chief Justice Fred Vinson and Presi­ erty. Victories on the field were of dent Harry S Truman playing poker together a priceless value, for they plucked the century later.32 life of the Republic out of the hands The Court unanimously agreed that of its enemies; but Milligan should be released from the Ohio Peace hath her victories State Penitentiary, where he had been heJd No less renowned than war; since late 1864 under the decision of a 12­ and if the protection of law shall, by member Union Army military commission your decision, be extended over every acting in Indianapolis. However, the Court di­ acre ofour peaceful territory, you will vided 4 to 4 on the reason. Justice David Davis, have rendered the great decision of Lincoln's long-time friend and campaign the century.31 manager, wrote the better-known opinion, holding that the use of military commis­ The government was represented by At­ sions involving civilians and certain offenses torney General James Speed, Henry Stanbery, in places outside of the military battle area and the colorful and somewhat infamous where state and federal courts were func­ Benjamin F. Butler of Massachusetts, an erst­ tioning was a violation of the Due Process while general in the Un ion Army. Garfield en­ Clause of the Fifth Amendment. Davis was joyed the good will of Chief Justice Salmon joined by Justices Field, Samuel Nelson, and

In 1866 Congressman James A. Garfield was one of several counsel who represented Lambdin P. Milligan (left), a civilian sentenced to death for his involvement in a plot to release and arm Confederate prisoners so they could participate in the invasion of Indiana. Garfield (right) spent most of his argument on a historical analysis of the uses of military commissions and martial law since 1322. 126 JOURNAL OF SUPREME COURT HISTORY

Nathan Clifford. Chief Justice Chase to 1880 in the Court after A1illigan. that Milligan should be released, on the ground Garfield at that \"'Ullgl <;;~:, citizens to mili­ some of the best Supreme wartime but had not Court advocates of the time, including: the proper authorization in this case. Chase was aforementioned David Dudley Field: Ebenezer joined by Justices James Moore Wayne, Noah Rockwood Hoar, then and Samuel F. Milier. Lincoln's Court United H. the first Miner, and a United Chase-were thus divided on the issue. from Indiana and one­ Although Garfield's arguments time of the House; and Solicitor Gen­ the case had a eral Samuel F. Phillips.35 Milligan, now Some ofthe cases Garfield appealed were cal as a and a traitor. while others touched on He was later portrayed as such in a civil trial tant legal and historic events. In 1869, he rep­ for that he his ac­ resented a landowner in Bennett v. Hunter,36 cusers. Milligan was Thomas a War property tax that A. Hendricks, the future Vice President, while Congress had The act his accusers were by Indianapo­ provided that if the tax was not paid, the prop­ lis lawyer and future President Benjamin erty was to forfeiture and sale by the Harrison. In his final argument in that civil United States. The Court found for trial in May 1871, Harrison labeled Milligan Garfield's client, determining that the tender an unqualified traitor.)} of the full amount of taxes, penal ty, and inter­ These facts a real est to the tax sale must be by dilemma for Garfield, and he had to make the United States-which rendered forfeiture peace with the Radical Republicans in his con­ in any later sale of the property bv the United district in Ohio. On this, his States null and void. pher states: In Henderson's DistillelJJ Spirils,37 the United States a forfeiture action Garfield might be with be­ and seized spirits purchased Henderson's traying his but no one could from a bonded warehouse because the taxes accuse him of selling out He never imposed on the production of had not made a cent out of the been paid by the The United States case, even though his clients in­ maintained this forfeiture action and seizure cluded some of the wealthiest men in of spirits Henderson's having made a Indiana. From time to whenever lawful of the from a bonded he was strapped for he would warehouse. The Court Garfield's ar­ dun Milligan and his friends for pay­ gument, which was based on old and obscure ment, but his were common-law concepts. The Henderson sease The however, was more drew a dissent from Chief Justice Waite and valuable than any fee. Garfield had Justices Field and Miller. won an as a con­ Notwithstanding Garfield's deep religious stitutional lawyer if properly and church on at least two occasions he managed, could nourish a lucrative the Baltimore and Potomac Rail­ careeL 34 road Company against the Trustees ofthe Sixth The of Garfield's is Church. In 1 the case in­ borne out in the 13 cases of which were volved a jury verdict of$ll ,500 by the church printed an!Ul11ents) that he handled from 1866 the railroad for resulting from PRESIDENTS AS SUPREME COURT ADVOCATES 127

the company's use of a road in front of the fraud by the agent on the company. The other church property.38 The highest court in the Dis­ insurance case involved both New York Life trict of Columbia upheld, and the issue came Insurance Company and Manhattan Life Insur­ before the Supreme Court, where the church ance Company43 for policies issued before the argued that it was without jurisdiction to en­ Civil War. Garfield represented the insurance tertain the appeal. Garfield argued for the rail­ companies in an appeal from the federal circuit road that the Court did have jurisdiction pur­ court in Mississippi. The Supreme Court, in an suant to an act ofCongress. The Court denied important decision for the insurance industry the church's motion to dismiss on that basis. ofthe time, determined that an action could not Garfield was next hired by the railroad in a be maintained for the amount assured on a life­ case where the church sought compensation insurance policy forfeited for nonpayment of for injuries resulting from the railroad's use of the premium, even though the war prevented a depot building near a church and the running the insured from making the payment. How­ of trains to and from it. 39 The railroad argued ever, the Court did find that the purchaser of that the assessment ofdamages was not autho­ the policy had a right to the equitable value of rized by law, and the Court, on a procedural the policy with interest from the close of the technicality, declined to examine the question war. of the assessment of damages. Less successfully, Garfield represented an In a case from the Indiana circuit court, employee of the Government Printing Office Garfield represented thc appellant in Putnam seeking additional compensation under a res­ v. Day, this time against the railroad.4o Put­ olution of Congress that went into effect in nam had obtaincd ajudgment against a railroad 1867. The Court of Claims had granted addi­ company in Floyd County, Indiana. Garfield tional compensation to the employee, named was able to preserve that judgment before Allison, but the Supreme Court reversed,44 the Supreme Court. In a case from Michigan, determining that Allison and other employ­ Garfield was hired by a township that wanted to ees were not covered under the resolution and issue bonds for the construction of a railroad. would therefore have to forfeit the additional The federal court in Michigan disallowed it, compensation. and the Supreme Court upheld. Justices Miller Another of Garfield's cases pertained to and Davis dissented in favor ofGarfield 's posi­ the location of the county seat of Mahoning tion. Although it was argued under the Michi­ County in Ohio, which had been changed from gan state constitution, this case, Pine Grove v. the small town of Canfield to Youngstown. In Talcott,4! may have been an early glimpse of spite of Garfield's best efforts, arguing under substantive due process. the Contract Clause, the Supreme Court would In 1876, Garfield was involved in two in­ not wade into this local fight.45 Similarly, surance cases. In Hoffman v. John Hancock in Potts v. Chumasero,46 Garfield represented Mutual Life Ins. Co. ,42 he represented Freder­ the Governor, secretary and marshal of the ick Hoffman's widow in an attempt to enforce Montana Territory against certain citizens, a premium collected by an agent for a life­ most of whom lived in or around Helena and insurance policy. The facts in this case surely were attempting to move the territorial capi­ made a man as serious as Garfield smile. Here, tal from Virginia City to Helena. After a state the agent, instead of collecting cash for the election on the subject, the Supreme Court of premium, received a horse worth $400. The Montana Territory issued a mandate requiring Supreme Court was not amused, however, and a recount in two ofthe counties in that territory, ruled that life insurance is primarily a cash because the vote showed a majority against re­ business and that the acceptance ofthe horse in moval of the seat. After the recount, the vote Iieu ofcash amounted to an ultra vires act and a showed a majority in favor of the removal. 128 JOURNAL OF SUPREME COURT HISTORY

Garfield represented the Governor, secretary. and marshal of the Montana Territory against citizens attempting to move the territorial capital from Virginia City to Helena (pictured) in 1876.

As in the Ohio county seat case, the and in 1884, President of Court sidesteooed the issue. throwing out the the United States. He lost narrowlv in 1888 case on the basis of a statute that required the Harrison, but did not return to amount in controversy to be more than $1 ,000. he established himself with The Supreme Court held that none of the gov­ the & MacVeagh law ernmental officials were at risk of losing any firm in New York City, where he mainly . the Court was without did office work and mediation and became to hear the case. friendly with J. Pierpoint Morgan and other It is interesting to note that for a brieftime wealthy clients of. the firm. He was not a in 1872, Garfield and Benjamin Harrison were but was "of counsel." Cleveland ar­ on record as counsel in the same case. gued one minor case before the Court for history, Garfield's of the United States in 1891. In doing so, tions on the House floor prevented any direct he became the first former President to ar­ confrontation between these two future Presi­ gue before members of the Court-in this dents in the Courtroom 47 A victim of assassi­ case, Chief Justice Melville Fuller and Justice nation, Garfield would serve only six months Lucius C. Lamar- whom he had himself as President in 1881. appointed. The case was of no importance, Grover Cleveland: Between Presidencies involving a bond issue in the city of Grover Cleveland commenced his political ca­ New OrJeans.48 Cleveland aooeared for John reer in Buffalo, New York as sheriff. became & who were holders of PRESIDENTS AS SUPREME COURT ADVOCATES 129

Grover Cleveland argued one minor case before the Su!nreme President argued before Justices he had appointed, two appointees, Chief Justice Melville W. Fuller and Justice Lucius Q, C. lamar, both voted against his arguments. certain warrants. Justice David Benjamin Harrison: Lawyer-Senator Brewer wrote an extended but Justice John Marshall Harlan dissented at In The Harrisons, Ross F. Jr. out­ length, with Chief Justice Fuller and Justice lines how a remarkable transformation oc­ Lamar joining the dissent Pressure to side curfed during four gelner'atlol of the Harrison with the President who appointed them was The first "The thus not an obstacle for the Cleveland ap­ " was a of the aristocratic, slave- pointees. Justice Billings Brown had owning plantation society of the James and recused himself, so the vote was 5-3. In- a membcr of the Con­ Cleveland was in corre­ tin ental of the Declaration with Chief Justice Fuller and gave ofIndepcndencc, and the Governor ofVirginia ex comment to Fuller about the case's as the War of was coming aftermath 49 But the press made no to an end. The younger son, William lar issue of the fact that for the first time in Harrison, was governor of the [ndiana history, a former President had a case a war hero of sorts, and-for as a before a Supreme Court that in­ of the United States. cluded members he had appointed, if William son, John Scott Harrison, the case had been import, the notion of was a member of the House of Repre­ a conflict ofinterest would have been sentatives from Ohio in the mid-J century. raised, But Harrison's son, the second 130 JOURNAL OF SUPREME COURT HISTORY

Former President Benjamin Harrison (left) represented Lambdin Milligan's accusers-not before the Supreme Court, but in an Indiana common-law damage case. Thomas A. Hendricks (right), a powerful Democratic lawyer who had served in the Indiana legislature and in both Houses of the U.S. Congress, represented Milligan. Harrison and Hendricks were simultaneously opposing each other in a case before the Supreme Court involving an injunction requested by the taxpayers of New Albany, Indiana

was unlike his politically money damages for a violation of the US. oriented forbears. He was a man of his craft­ Constitution. As such, it was first,5o lawyering. The trial occurred in May 1871, receiving Harrison studied law in Cincinnati in the massive media coverage, including verbatim office of Bellamy a former Whig Con­ reporting of on the front pages of gressman. He "kept his nose to the grindstone, the leading newspapers. The case which pleased Storer, who pJayed a role went to the jury on the before Dec­ in forming Harrison's talents similar to oration Day, \1ay 1871. The the one Stephen T. exercised with young jury deliberated all night, a verdict at Abraham Lincoln. In the 1860 election, run­ II :00 A.M. After a two-week trial and massive ning as a Republican, Harrison was elected to numbers ofwitnesses and evidence, the verdict the office ofthe Court of for Milligan was $5.00 and costs, a Indiana, then a statewide, elected office. The ofthe transcript indicates that Milligan job provided no compensation never collected either. money could be made printing and While Harrison and Hendricks were con- official reports. The in a federal courtroom in ted to engage in the they were also so in the Harrison became a first-rate ofthe United States. In New Albany v.

resigned his and enlisted in the Union Hendricks the ,aAuaV<:;1 when war broke out during his first term. Albany, Like Garfield, Harrison was also involved interest on bonds issued to construct a railroad. in the case of the Indiana Harrison New The US. who was tried in 1864 for antiwar activities Circuit Court in Indiana had issued an and sentenced to death by a commis­ tion requested by the The sion. After the Supreme Court unanimously them. Thus, ordered to be set free, he returned to in his first case before the his Indiana home pro se, filed nation's court. Harrison's next case, Burke v. Smilh, in­ based upon common-law volved subscribers to stock in a railroad corpo­ rest and false imprisonment. The defendants ration in Indiana and whether the railroad could in the case included the 12 be held liable for amounts in excess of the sian members, witnesses against and face amount oftheir subscription. The railroad such prominent persons as former Indiana gov­ had become insolvent and wanted to require ernorOliver P. Morton, now a US. Senator, and the stock subscribers to pay more. Harrison former Chief of Staff of the Ulysses S. for the railroad; the subscribers were Grant, now the President of the United States. rpC"ntc'£i by Indiana Michael The case was transferred to the US. Circuit Court in Indianapolis, where Judge Thomas Presidents were opposing counsel in the same Drummond of Chicago presided over the trial. case; however, as noted above, Garfield did not Milligan was by a "'A'

Democratic lal;vyer, Thomas A. Hendricks, Harrison had another interesting VIJ'VV"Ov" who had served in the Indiana and in v. Indianapolis. 52 David Turpie, in both Houses ohhe United States who would later defeat Harrison in his reelec­ President "General" Harrison tion bid for the US. Senate in 1 was op­ he was referred to the Court and other posing counsel and prevailed over Harrison in to lead the defense of this case, which this case also. In ChiefJustice Waite really became a civil-rights trial, c1aim­ ruled that a general 132 JOURNAL SUPREME COURT HISTORY statute did not violate the Clause of Court the decision of the federal cir­ the Fifth Amendment. cuit court in Indiana. Harrison was elected by the indiana Gen­ In 1884, Harrison Dimpfal v. Ohio eral to the U.S. Senate in early 188 J. and Mississippi Railroad 56 in which he He received a note from Judge Thomas Drum­ represented the Farmers Loan and Trust Com­ mond "[ don't like to see a laWYer like pany as an appellee. The case involved an equi­ you leave his and go into table action by a small of stockhold­ The Supreme Court was housed in the ers and a question ofultra vires. The Supreme and Senator Harrison was present in the Court­ Court held that the stock­ room when the landmark civil rights cases of holders had to exhaust all means to obtain re­ 1883 were decided. He strongly with dress oftheir grievances within the corporation the decision and said so in a later to a and that they had not done so. racially mixed audience in the Second Baptist Near the end of his one term in the Sen­ Church. Notwithstanding his Virginia origins, ate, Harrison argued Smith v. and Jew­ Harrison took the view of the Radical Repub­ ell v. Kniszht,58 two cases that were combined licans at the time on issues of race and recon­ for argument and decision. Harrison was struction. He endorsed the Civil Rights Act of Joseph E. former US. I would strongly sup- Senator from Indiana. Both cases involved mi­ federal to the voting nor debtor/creditor issues. Justice wrote of southern blacks under the Fifteenth an opinion dismissing these which had Amendment. been brought by Harrison. As Senator, Harrison continued to prac­ Harrison's biographer charac­ tice law, and he six cases before terizes Harrison's extraordinary ability in the Supreme Court. In Evansville Bank v. the years before his presidency: Britton,53 he was by Hendricks, during the period from 1854 who appeared for the with Harrison the of for Britton. Justice Samuel F. Miller wrote office and strenuous the in favor of Harrison's Harrison had remained interest with Chief Justice Waite, Joseph P. first and foremost a He had . and Horace Miller grown in ability until he ruled that under Indiana statute, the taxation was recognized as one of the ablest of national bank shares without permitting of his time.59 their owner to deduct the amount of bona Harrison served as President for one term, fide indebtedness from their assessed value from 1889 to 1893. was a discrimination forbidden an act of

.::Iwvprinp' Ex-President Two years later, Harrison's arguments pre­ vailed again in Warren v. 54 a case involv­ The most visible activity in which Harrison the foreclosure of two railroad mortgages, "1l1"'d~~C;U as a after his and in Indiana Southern R. Co. v. Liverpool, to act as chief counsel for the of and Globe Ins. Co. 55 In that case, Venezuela in a boundary dispute with British Samuel 1. Tilden (the Democratic presidential Guiana in South America. He took a hard­ candidate in 1876) was trustee for the issuance nosed attitude in fixing the fee with the of a million and a half dollars in bonds held Venezuelan upon and by the insurance company. The is­ receiving a retainer of $20,000 and quarterly sue had to do with and Chief Jus­ payments of $1 0,000 until the Arbitration Tri­ tice Waite wrote the opinion for a unanimous bunal in Paris rendered its decision in 1899. PRESIDENTS AS SUPREME COURT ADVOCATES 133

In all, he earned an $80,000 fee. Harrison appearing before a Supreme Court to which took an active role in developing the factual he had appointed members. Perhaps Harrison's record, which then was followed by lengthy talents as a lawyer were so generally recog­ oral arguments before the tribunal. That tri­ nized as to stave off any negative comment. bunal included two American judges, Chief Indeed, in 1896 a one-paragraph story ap­ Justice Fuller and Justice Brewer (the latter ap­ peared on the front page of The New York Times pointed to the Supreme Court by Harrison in confirming Harrison's reputation as a top 1890), and was chaired by a Russian judge. advocate: The conclusion to this enormous effort was At the last meeting of the Indiana a final argument lasting 25 hours and span­ Tax Commissioners, it was voted to ning five days. Much to the consternation of secure, if possible, the services of Harrison and his legal entourage, the tri­ ex-President Harrison to make an ar­ bunal ruled in favor of the British contentions. gument in the Supreme Court in be­ Harrison may have been correct that the de­ half of the State of Indiana to enforce cision was driven by European power politics payment oftaxes assessed against the rather than international law. 6o expressed companies. The Commis­ An objective view of Harrison's perfor­ sioners learned that he would not ap­ mance as a lawyer on this international stage pear for a fee of less than $5,000. is offered by Willard L. King, biographer to In the California Irrigation cases, Chief Justice Fuller. His separate chapter on he received $10,000. His largest fee this international boundary dispute as it fi­ was received two years ago from nally played out in Paris describes Harrison the Indianapolis Street Railway. It as "probably the ablest lawyer ever to be Presi­ was $25,000. In the Morrison will dent." This conclusion is supported by a state­ case, at Richmond, Ind., he received ment by Roland Gray, who was Fuller's secre­ $19,00062 tary in Paris: The cases Harrison argued so lucratively dur­ I never heard him argue in Washing­ ing this post-Presidential period were: Fall­ ton and he did not appear very well in brook Irrigation District v. Bradley,63 Tregea Paris. But my uncle [Justice Horace v. Modesto Irrigation District,64 Forsyth v. Gray1once said to me that in his opin­ City of Hammond, 65 City Ry. Co. v. Citi­ ion, the four ablest counsels who ar­ zens State Railroad Co.,66 Magoun v. Illi­ gued before him in Washington were nois Trust & Savings Bank,67 and Sawyer v. Mr. James Carter, Mr. Joseph Choate, Kochersperger. 68 Fallbrook was argued the Mr. John Johnson of Philadelphia, same day as Tregea. 69 Harrison's opponent in and President Harrison.61 these companion California irrigation cases Ex-President Harrison also argued six was one ofthe great lawyers ofthe time, Joseph cases before the Supreme Court between 18% H. Choate. The cases involved the taking of and 1898. At that time, the Court included Jus­ private property for public use, as well as a tices Brewer, Brown, and George Shiras, all due process issue about how property could nominated by Harrison. (A fourth appointee, be included in a local improvement district. Howell E. Jackson, had died in 1895 .) The Harrison was well paid and prevailed in these pages of The New York Times during this pe­ landmark cases, which were crucial in the de­ riod contain numerous references to Harrison's velopment and regulation of water resources lawyering activities, but, as with former Pres­ in the West. ident Cleveland, no question was raised in the The City ofHammond case came from the press about the propriety of an ex-President federal court in Indianapolis and had to do with 134 JOURNAL OF SUPREME COURT HISTORY

In 1897, Harrison argued a case before the Supreme Court on behalf of the Citizens Street Railroad Company, which sought to operate a railroad on the streets of Indianapolis where it had constructed its tracks. Harrison earned $25,000 for his services, a substantial sum in those days. a ofArticle Section 4 ofthe Consti­ In Magoun, Harrison the con­ tution and the guarantee of a Republican form stitutionality of an Illinois inheritance tax law of government. The Court decided under the Equal Protection Clause of the Four­ that a state let a court determine munic­ teenth Amendment, a $5,000 fee. The ipal boundaries without running afoul of the Court majority his argument on the Constitution. ground that the state prescribed different treat­ The Citizens case was on March 16 ment for lineal relations, collateral and 17, 1897. PhilanderC. later Attor­ and unrelated persons, in propor­ ney General, with Harrison for the ap­ tionate burden of tax as the amount of benefit pellee. The case involved the op­ increases. The Sawyer case an un­ eration, and maintenance ofa streetcar system successful effort bv a Cook Illinois in the city of Indianapolis and concerned the tax collector to remove to the Court authority of a Citizens Street Railroad Com­ of the United States a state court case involv­ pany to operate a railroad on the streets where a defendant who it had constructed its tracks. There was a ques­ to pay taxes. In I Harrison ap­ tion of the of an ordjnance to that ef­ in extended litigation over the will of fect. In a somewhat complicated Har­ James L. Morrison, a wealthy banker in Rich- rison'8 arguments The economic in­ Indiana, and earned a $25,000 fee. terests were substantial and, as the Times Writing in 1916, in his three-volume he earned $25,000 for his services. Courts and Lawyers of Indiana, Indiana PRESIDENTS AS SUPREME COURT ADVOCATES 135

Court Justice Leander Monks said against Canadian and British nationals har­ of Harrison: "As a lawyer, in its broad and best the abundant seals of that area. Their sense, he was considered second to no one in ships were taken into Alaskan America."70 In My Memories Years federal courts and forfeited. The position of (I M. U.S. of State James G. Blaine was that Senator and political nmx/i"r'h()1 the United States had all of the authority in appraisal: "General Harrison was far the the Sea that Russia had even ablest and lawyer among our Pres­ though that had not been spelled out idents .... He retired from like many ically in the (Historians say that Se- of our a poor man. ward was too anxious to get the treaty After he entered at once upon the before the deal fell through to sort out the ofhis profession ofthe law and almost became as one of the The British authorities to do leaders of the American Bar."71 an end run arollnd diplomatic by into the Supreme Court in an ad­ case involving the W P Sayward, a William Howard Taft: Fresh from Ohio Canadian sailing schooner in the seal William Howard Taft was part of the trade and owned by a British citizen. It had knit political of Ohio Governor been seized a United States revenue cut­ B. Foraker that to carry the ter, and the federal court in Alaska had for­ state to make Benjamin Harrison President feited and condemned it. The British and Cana­ in the 1888 election. The organization pro­ Court advo­ vided Taft a judgeship on the Ohio them along Court in Cincinnati. Not yet 30, he was "'-'<"''''''''', Sir John In January 1890, Orlow W. Chapman, the United States, the Solicitor General ofthe United States, died. General William Miller's Foraker personally lobbied President Harrison name is also listed. Miller's health was for Taft to be successor. Taft arrived ile and it is unlikely he a role in this by train the following month to take up his du­ advocacy. the cases before the Choate advanced a writ of prohibition to a bundle ofother undermine the exercise of admiralty administrative and statutory responsibilities,12 tion by the U.S. courts in Alaska. Taft coun­ Taft's many biographies different that the "to a court numbers of cases he handled while Solicitor General. Henry F. he "'"",...,,"nt upon a between it 18, but Herbert S. power, made while diplomatic 27. Thirty-six on, should be denied." have been found, and there were sev­ Court 73 Chief Justice eral pairs of cases handled together. The exact Fuller wrote the I 892 opinion; Justice Field number of oral arguments is not known, but it alone dissented without The Taft ar­ is certain that Taft had hands-on involvement and the Fuller opinion advanced in all of them and that at least two are of con­ lines that were further developed by Justice siderable note. Sutherland in Curtiss-Wright 45 years When William H. Seward the later. 74 treaty for the ofAlaska in I Taft was a man, and he soon became was a failure to define the exact boundaries involved with another man by the of the Bering Sea. As a disputes arose name ofThomas Brackett Reed 75 ofMaine. In 136 JOURNAL OF SUPREME COURT HISTORY

1889, Reed had the of the was for members to refuse to Republican caucus in the U.S. House of answer the roll call and thus a quorum resentatives to put him, rather than the very for the dispatch of legislative business. popular William McKinley ofOhio, forward as ently, both parties, when out of power, used Although Taft and Reed were similar some version of this tactic. When Reed be- in physical structure, they were vastly differ­ he did a frontal assault on this ent in temperament. Both were brilliant, to be by merely having the Clerk note as sure. But the largely stopped there. those members ofthe House who were Reed was sarcasti refused to answer roll and at times mean-spirited. He was highly lit­ call. That erate and as follows: the most to serve as Speaker in the Taft was always On the demand of any or considered affable and lovable. These two big at the suggestion of the the men were thrown in an interestil names of members sufficient to make Court case in 1891, while Taft was a quorum in the hall of the house Solicitor General. who do not vote shall be noted by Before the advent of "Czar" Reed'8 the clerk and recorded in the journal, a tactic used in the House of and reported to the Soeaker with the

House of Representatives Speaker Tom Reed (above) squashed the practice of members refusing to answer roll call to prevent a quorum for the dispatch of legislative business by having the Clerk note them present anyway. As Solicitor General, William Howard Taft argued the government's position when the Supreme Court reviewed this practice in 1891. PRESIDENTS AS SUPREME COURT ADVOCATES 137

names ofthe members voting, and be the greatest lawyers of the time, including the counted and announced in determin­ aforementioned Choate, Elihu Root, Joseph E. ing the presence of a quorum to do McDonald ofIndiana, a former U.S. and Attor­ business. ney General who had been counsel the Milli­ The rule came under review before the gan case, and the colorful Benjamin F. Butler, Supreme Court under an act adopted on May who at one time or another belonged to all ma­ 9, 1890 classifying worsted cloth as woolens. jor political parties and some minor ones. One of the two issues raised was the way the In 1890, the Supreme Court reviewed two .Speaker had counted a quorum. The importer cases on the same day regarding age at the time contested the constitutionality of the act on the of enlistment in the Army. One of them in­ ground that it was not passed by a quorum volved a l7-year-old who lied about his age within the meaning of the Constitution. On by claiming he was 21 and thereafter deserted. February 29, 1892, Justice Brewer, speaking The Supreme Court held that the contract of for a unanimous Court, ruled that because the enlistment did not relieve him from any obli­ Journal recorded that a majority was present, gation to the Army.78 In the other case, Taft and under the Constitution a majority consti­ again represented the United States against a tuted a quorum, then a majority ofthat quorum man who said he was 28 when he joined the had voted in favor of the act. 76 Since the act Army but was really 35 . Again, the opinion fo­ had been legally passed in the House, Reed's cused on the enlistment contract. In this case, a rule and practice were valid. A close read­ court-martial decision was held to be final and ing of Brewer's opinion, however, reveals that the civil courts permitted review only to ensure Reed's action in counting a quorum in 1890 proper jurisdiction. The Court held that the en­ was not the issue before the Court. Instead, listment occurred as soon as the man took the it was the validity of the rule by which the oath, and that that was when his status changed 79 Speaker was authorized to count a quorum that from civilian to soldier. was tested. In any case, the delaying tactic of President Harrison signed the Evarts Act breaking a quorum was given a decent judicial in 1891, which created a permanent set of in­ burial. termediate federal appeals courts. Among the It has already been recounted how, when cases in which Solicitor General Taft was in­ young John Quincy Adams was in the U.S. volved were early decisions under the Evarts Senate and observed the Marshall Court in ac­ Act with regard to the constitutional jurisdic­ tion, he was in awe. Not so with Taft. He wrote tion of the intermediate appellate courts, as to his father: weI! as the problems ofvenue in crimes that can occur in more than one district or state. Taft ar­ I have difficulty in holding the at­ gued for the President's authority to suspend an tention of the court. They seem to Alaskan territorial judge appointed under Ar­ think when I begin to talk that that ticle I ofthe Constitution,80 raised questions as is a good chance to read all the let­ to who could be tried on an Indian reservation ters that have been waiting for them, for murder;81 and tackled the political ramifi­ to eat lunch, and to devote their atten­ cations ofChinese immigration in the last part tion to correcting proof[s], and other of the 19th century.82 matters that have been delayed until Taft was appointed to the Sixth Circuit my speech. However, I expect to gain in 1892. Thus, in 1909, he became the only a good deal ofpractice in addressing a President of the United States to have served lot ofmummies and experience in not as a federal judge before taking office. After being overcome by circumstances.77 his unhappy presidency, Taft taught constitu­ Solicitor General Taft had the opportu­ tional law at Yale. To avoid any conflict of in­ nity to appear as an adversary against some of terest for the federal judges he had appointed as 138 JOURNAL OF S COURT HISTORY

After Richard Nixon was defeated for governor in 1962, he was considered washed up as a politician, so he came to New York to practice law. Although Nixon narrowly lost the Time, Inc. case before the Supreme Court in 1966, his performance earned him the respect of the Jus­ tices, the press, and the legal community.

President, Taft refused to take on any represen­ When he came to New York in late tation in any federal court. He was obviously 1963, after Warner-Hudnut chairman more sensitive on this than either of Elmer Bobst for his name his predecessors, Harrison and Cleveland, nei­ to be placed at the head of a presti­ ther ofwhom had about before judges they had was Judge Taft badly wanted the Supreme Court nomination that President William McKenna in 1898. While as a Nixon took McKenna on the Court to on the case that would become Inc. v. eventually serve with Chief Justice Taft when Hill86 and argued it on before he was finally to the Court Pres­ the Supreme Court This was his only argu­ ident Warren in 1921 Taft had the ment before any court Nixon took distinction of three weeks away from in the graduate from law schooL 84 1966 congressional elections and devoted him­ self to preparing for the oral Harold Richard M. Nixon on the Way Back R. Medina, .If. of Cravath, Swaine & Moore After his disastrous defeat for gover­ argued for Time, Inc. the son of a nor of California in 1962. Richard M. Nixon federal and himself a veteran Court advocate, was a formidable op­ New York firm Nixon, counseL The case was in many ways a and Alexander. William Safire sets the stage to New York Times v. 87 in for Nixon's triD east: which the Court made it increasinglv difficult DENTS AS SU E COURT ADVOCATES 139 for political celebrities, and oth­ E. as Chief Justice in 1969, he would ers similarly situated to bring defamation suits also speak publicly about the against the press by establishing actual malice. 1 have also had another The facts of the case are as follows. On at this Court. In 11, three escaped convicts ber of the I had taken over a home in a suburb of Phi lade 1­ occasions before the phia, James and Elizabeth Hill and of the United States. their five children hostage for 19 hours. No harm was done or later claimed, but the Mr. Chief received sensationalized coverage in the na­ one ordeal which is more challeng­ tional press. Elizabeth Hill found the ing than a Presidential press con­ hard to bear. The Hill family moved to Con­ ference, and that is to appear be­ necticut and denied con- fore the Court of the United from public view. All was States.8H I But Nixon's

JV\.fWfUW Hours that a won 111 family held hostage by escaped convicts. Life MacKenzie wrote in The Washington Post that described the playas a re-enactment of the Hill his presentation was "one of the better oral ar­ and included photographs guments of the year.,,89 According to his of their suburban Philadelphia home. But this raphers, Justice Abe Fortas offered high was inconsistent with the realities and that Nixon had done so of the Hill and the well. He termed the Nixon argument "one of Joseph Hayes, denied that he had the best he had heard since he had based it on the Hills' ordeal. In his the been on the Court" and opined that the fuulre convicts acted brutally, President could become "one ofthe advo­ and sexually harassing the This dis­ cates of our times." Even Anthony Lewis was tortion caused the Hills and they complimentary of the Nixon style, if not the took action by hiring future President substance of his argument.90 In a brief Nixon. tucked away on page 20, The New York Times The fact that the HiUs were not self­ characterized Nixon's professional demeanor celebrities but the victims of notori­ before the Court as ous criminal activity made their case appeal- an seldom used to describe him in to Nixon. Safire a further motive any context and one that is at odds with his for Nixon's taking on the Hills as clients: he own of the event. At lunch after could argue a legal with the the Brethren surprise his private beliefs in the process, prove Nixon was. his competence as a real-life lawyer. The case When the Court met in there had an issue ready-made for Nixon's predispo­ to be a disposition in favor of the sitions regarding the excesses ofthe free press, led by Justice Fortas and Chief Justice when one recalls the late-night "fi­ Earl supported Justices nal" news conference after h is de­ John Marshall Harlan, Potter Stewart and Tom feat in 1962. The intersection between the free Clark. Had this majority the Hills would press and privacy consumed Nixon. have won. But the to get a After the oral argument, Nixon wrote a at odds 2,500-word, self-critical memo about his per­ with the absolutist view of the First Amend­ formance. At the ceremony inducting Warren ment long held by Justices L. Black and 140 JOURNAL Of E COURT HISTORY

At Nixon's inauguration in 1969, Justices Black, Douglas, and Harlan were seated behind the President at right. Black (whose face is immediately to the right of Nixon) was the moving spirit behind the majority that had voted against the future President's arguments in the Time, Inc. case. Douglas joined the majority; Harlan concurred in part and dissented in part.

William O. Douglas. The won little djJjJ;all~C, and Leonard indicate after it was over, did not enter into extended that Justice Black launched a ac­ self-critical Garment, Nixon's co­ tion, which eventually turned Justice Stewart counsel, said of the second argument, "Justice and led to a re-argument and finally to the re­ Black Nixon in a fierce ten-minute sult sought by the two senior members of the colloquy in which neither yielded an inch of Court. But Nixon did not seem to have his The case was scheduled for re-argument mind on the case during the on October 18. The before the second ar­ The decision divided the Warren Court gument, Black sent around an extended mem­ in an fashion. Nixon's orandum. Its tone, to Schwartz, was attracted the admiration and votes of Chief "unusually sharp" and a "key role" in Justice Warren along with Justices Fortas and changing the Court's decision. Schwartz adds, Clark. Justice Harlan concurred in part and dis­ "[I]t is not clear why the Alabaman [Black] sented in The historical displayed such a distaste for his new colleague dicates that the moving spirit in cOllect1l1g a [Fortas]." The memo is further described as was Justice Black, although Justice "an acerbic attack" and "sarcastic." William J. Brennan wrote for the The second two weeks no doubt Black's as senior Jus­ before the 1966 elections, in tice. Not which Nixon was daily for congres­ Justice sional candidates. While Nixon had received he also picked up generally favorable for his performance tice Stewart. In a conversa­ in the first argument, in his second argument he tion with Jolm Dean, Nixon later called the AS ... 1-....1­ COURT ADVOCATES 141

vote 5 to 3 obvious reference to the And Schwartz seems to argue that Supreme Harlan dissent93 Court doctrine is back toward the posi­ In 1989, Garment wrote a lengthy ar­ tion taken by Nixon in Hill. 97 ticle about the case in The New As for the client, the practical epilogue and Schwartz also into the back-channel was that Elizabeth Hill received a sub­ processes that contributed to the decision. stantial money settlement after the case was Schwartz included his in The Un­ returned to the New York courts. The sad published of the Warren was her suicide in 1971 an offshoot of his biography of Earl Warren. Hill remained a very sore point with Nixon. Garment's conclusion is revealing: Despite their many character differences and The of this struggle is that their being nearly two after all the speculation about how John Quincy Adams and Richard M. Nixon the Court would to Richard had one characteristic in common: they were Nixon, the IJv10V1IU both self-critical worriers. In ofhis termined the course of the Hill case Supreme Court argument in Amistad in 1841, was not toward Nixon Adams wrote in his diaries about his anxieties by any member of the Court. The over his ability to the African muti­ two Justices who had always de­ neers. Immediately after the Supreme Court tested Nixon's politics-Warren and handed down its decision, Adams worried Fortas-were unshakable defenders about getting the Africans home. Similarly, the of his in the Hill case. The memo written Nixon the night after his first central clash in Hill was be­ argument reveals that he fretted about the 94 tween Black and Abe Fortas. ity of his arguments and his ability to client. In May I Justice Fortas was dam­ Adams and Nixon belong to the very nar­ aged by a article disclosing his financial involvement with indicted stock manipulator row of men who served both as Pres­ idents of the United States and as advocates Louis E. Wolfson. The press scandal eventu­ before the Court of the United States ally forced him to leave the Court Table to Fortas believed until his death in six other who either would later oc­ 1982 that the press scandal was a for cupy the or had already served that his actions in Hill95 office before arguing before the court the Hill episode had a positive in the land. Adams and Nixon could further outcome for Nixon. One biographer states: boast that the cases they before the His homework, his his presen­ Supreme Court were of constitutional signifi­ and his commitment all im­ cance. James A. Garfield could also make that his law the claim for his participation in Other New York legal past or future Presidents the r"....Arl·Prc either minor or important in reference to issues ofthe time. But all the cases the case 5-4, Nixon from it the re- described above take on extra as ofhis fellow He proved occasions when men who were at one time what he already knew, that if he had chief executives of the nation served as ad­ devoted full time to his practice, vocates pleading for the Justices ofthe highest he would have been one oHhe best.96 court to be swayed by their arguments. 142 JOURNAL OF S COURT H

TABLE I Admissions of Presidents to the Supreme Court Bar

John Quincy Adams Admitted movant unknown. James Knox Polk Admitted movant unknown. Abraham Lincoln Admitted March 7, 1 on motion Mr. Lawrence. James Abram Garfield Admitted March 5, I on motion by Mr. Jeremiah S. Black. Benjamin :Harrison Admitted 28, 1881, on motion by Attorney General Charles Devens. ~tephen Grover Cleveland Admitted Mav I, I H. Garland. William Howard Taft Admitted March 3, I William Miller. Richard M. Nixon Admitted March \4, 1947, on motion by Fred N. Howser. June 1975.

Grover Cleveland and Harrison SIble)." The records of the Federal Circuit Court arc In both cases before Justices whom they Massachusetts Circuit Court Records, RT,Federal Records had while as President. It is Center, Boston. also C. Peter Magrath, Yazoo: Law and Politics in the New Republic (Brown University curious that the press apparently did not object Press, 1966), pp. 4-15. to this nor did the advocates them­ 9Nagcl. Adams, p. 183. selves seem troubled by of lOCharles Francis Adams. Memoirs, I. 543-544, March conflict of interest. In any case, there is no ev­ 11, 1809. See Fletcher '" Peck, 10 (6 Cranch) idence that the Justices felt compelled to vote (1810). The opinions of both March II, 1809 and March 16, 1810 are reported. in their favors. IINevins, Diary, p. 58. a more ethical climate as much as a deep re- 12NageL Adams, p. 199. for the fonner President Taft refused UFoI' full of Madison's efforts fill the CUShing to clients before any federal court, seat, see Henry Adams, History of the United States dur­ regardless of whether it held one of his own ing the First Administration of James Madison (Charles appointees. Scribner's Sons, 1890), Books and VI, p. 359-360. Madison also made the Story nomination over the strong ENDNOTES opposition of Thomas Jefferson. 14Nevins records his lasl moments as the final item in IPaul C. Nagel, John Quincy Adams (Alfred A. Knopf, Diary at p. 575: 1997), pp. 132-1 Richard Brookhiser. America's First Dynasty: The Adamses 1735-1918 (The Free Press, Adams served in the House till 21, 1848, 2002), p. 65-76. when he fatally stricken there. He was 2US. (2 Cranch) 187 (1804). seated at his desk, when neighboring member JUS. (2 (1804). 4Charies Francis Adams, cd. The Memoirs of John saw suddenly that he was in a state of convul­ Quincy Adams (3. P Lippincott & Co., 1874-1877), sion and, removed to a committee room, he died 1, p. 295, FeblU3ry 17, 1804. See also Jean Edward Smith, on Feb. 23. This record may fittingly terminate John Marshall: Definer of A Nation (Henry Holt, 1996), with his victory in rescinding the gag rule. p.342, 5l\'agel, Adams, p. 362. 15There has been beavy reliance on Amistad. See Fed­ 6AlIan l\'evins, ed. The Diary of John Quincy Adams eral Judicial Amistad, The Federal Courts and (Charles Scribner's Sons, 1951), p. 57. the Challenge 10 Slavery, http://www.fjc.gov/historyl 7US. (5 Cranch) 57 (1809). amistad. ns f. Bin 9 Fed Cases in Flelcher Peck (1807), there is Francis Adams, Memoirs, 10 358, October notation "(nowhere reported): (opinion not acces­ 1840. PRESIDENTS COURT 143

17Charles Francis Adams, Memoirs, 10: 2429, February 4089 U.S. (22 WaiL) 60 (l 22, 1841. 41 86 U.S. (19 WalL) 666 (1874). 1825 U.S. (12 Wheat) 546 (1827); 23 U.S. (10 Wheat) 66 4292 US. 161 (]876). In Garfield, Peskin refers to the (1825); 24 US. (II Wheat.) 743 (1826); John T. Noonan, receipt of legal fees of $5,000. In a memo to the author Jr, The Antelope (University of Cali fomi a Press, 1977). on 6/25/2002, he states that they were separate sums of Adams' concerns with the Antelope cases and his confer­ $1,500 from one insurance case and $3,500 for the second ences with Francis Scott Key run throughout his entries of case. January and February 1841. Adams met with Key on the 41New York Li!e Ins. v. Statham, 93 U.S. 24 (1876). subject on January J4, 184 L See Charles Adams, 44US v. Allison, 91 U.S. 303 (1876). Memoirs, 10: 396-397. 45Nevmm v. Commissioners, 100 US. 548 (1880). 1~40 US. (IS Pet.) 547, 51 (1841). The 4692 U.S. 358 (1876). Adams in the Supreme Court can be found in Hudson 47See Burke Smith, 390 ( For a brief John Quincy Adams (Madison House, 1998), overview, see Joseph Harmon, Garfield, The Lawyer, p.239. (Riverview Press, 1929). 20President Adams had appointed Robert Trimble, who 48Peake v. New Orleans, I U.S. 342 (1891). served only two years and died in 1828. 49Willard L King, Melville Weston Fuller, (The Macmil­ 217 U.S. (Curtis) 117 (1827). Ezekiel Norris appears to lan Company, 1950), p. 161-162. Allan Nevins, Grover have litigated on the same land before the Supreme Court Cleveland: A Study In Courage (Dodd, Mead & Co., of Errors and Appeals of Tennessee In Garner & Dickson 1934) does not mention Cleveland before the Supreme v. Norris, 9 Tenn. 62 (182 J). Court. 22Eugene McCormac, James K. Polk (University of sDSievers, Harrison, ch. 3, pp. 30-45. Chicago Press, (922), p. 12. 5178 U.S. 96 (1870). 23David Herbert Donald, Lincoln (Simon & Schuster, 52 103 U.S. 599 (1881). 1995). 53105 U.S. 322 (I 24Donald, Lincoln, pp. 185-J93. 54 108 U.S. 389 (1883). 2548 U.S. (7 How.) 776 (1849). 55 I 09 u.S. (1883). 26Lewis v. Broadwell, 15 Fed. 473 (Cir. D. III 1847). 56110 U.S. 209 (1884). 27Allen I. Spiegel, A. Lincoln, Esquire: A Shrewd, So­ 57123 U.S. 436 ( 1887). phisticated Lawyer in His Time (Mercer University 58123 U.S. 426 (i887). Press, 2002) p. 33. 59Reports orthe Benjamin Harris Memorial Commission 2&Rober/ Forsyth ,: John Reynolds el ai, 56 U.S. (15 How.) (U.S. Government Printing Otl'ice, 1941), Exhibit 2, The 358 (1854). Harrisons by Ross Lockridge Jr., p. 102. 29For a somewhat romantic view of Alexander Campbell, 60King, Fuller, ch. 19, pp. 249-261. see Louis Cochran, The Fool of God (College Press Pub­ 6lKing, Fuller, p. 258. lishing Co, 1985). 62"General Harrison's Big Fees," The New York Times, 307 I U.S. (4 WaiL) 2 (1867). December 1 1896, p. I. 31Joseph Harmon, Garfield, The Lawyer (Riverview 63164 U.S. 1 (1896). Press, 1929), pp. 4-5. 64 164 U.S. 179 (1896). 32John Niven, Salmon P. Chase, A Biography (Oxford 65 166 506 (1897). University Press, 1995), pp. 403-404. See also Albert 66166 (1897). Bushnell Hart, Salmon Portland Chase (Hollghton Mif­ 67 170 (1898). flin and Company, 1899), p. 68170 U.S. 303 (1898). 3JHarry J. Sievers, Benjamin Harrison: Hoosier States­ California irrigation cases caught attention of man (University Publishers, 1959), vol. 2, eh. 3, pp. 30­ The New York Times, October 13, 1895. 45. 70Leander 1. Monks, Courts and Lawyers of Indiana J4Alian Peskin, Garfield (The Kent State University Press, (Federal Publishing Co., Inc. 1916), VoL 2. p. 429. 1978), p. 273. 7lChauncey M. Depew, My Memories of Eighty Years 35Joh11 M. Taylor, Garfield of Ohio, The Available Man (Charles Scribner'S Sons, 1922), p. 140. (New York, 1970), p. II See also Niven, Chase, p. 404. 72Henry F Pringle, The Life and Times of William 3676 U.S. 326 (9 WaiL) (1870). Howard Taft (Farrar & Rinehart, Inc., 1939), I' 108-120. 3781 U.S.44 (14 WaiL) (872). Cooper, 138U.S.404(1891), 143 U.S. (1892). J8Baltimore and Potomac Railroad Company v. Trustees of arguments here are summarized in Pringle, Taft, I: Sixth 86 US. (19 WalL) 62 (1874). 17-18. 39Baltimore and Railroad Company v. Curtiss-Wright Export Corporation, 304 ofSixth Presbyterian Church, 91 U.S. (lOtto) 127 (1875). ([936). 144 JOURNAL OF SUPREME COURT HISTORY

75Samuel W McCall, The Life ofThomas Brackett Reed 89Leonard Garment, "Annals of Law: The Hill Case," The (Houghton M i fIl in Company, 1914), pp. 162-172; Richa rd Yorker, April l7, 1989, pp. B. Cheney and Lynne V Cheney, Kings of the Hill (Simon 90Anlhony Lewis, Make No Law (Random House, 1991), & Schuster, 1996), pp. 96-116. p. 88. "[TJhe Justices thought superior job." The 76US. " BaUiIl, 144 U.S. 1 (1892). FOrl3S comment is found in Bruce Allen Murphy, Forlas nPringle, Taft, I: 115. (William Morrow and Company, 1988), p. 230. Bernard 78Morrissey v. Perry, 137 US. 157 (1890). Schwartz, Super Chief: Earl Warren and His Supreme 79US. v. Grimley, 137 US. 147 (1890). Court, a Judicial Biography (NYU Press, 1983). pp. 80McAIlisier US., 140 US. 174 (1891). 643-{)48. James Fitzpatrick, senior partner at Arnold & 81Exparte Wilsoll, 141 US. 575 (1891). Porter in 2003, confirmed Ihe conversations with Fortas 82Wal1Shingv. Us., 140US.424(1891). in admiration of Nixon's performance in a 12i28f02 leIe, 8JPringle, Taft, 1.1 phonic interview with the author. 84Sometimes this distinction is given to Fuller, who at- 91Bernard Schwartz, The Unpublished Opinions of the Harvard School but did not graduate. See Warren Court (Oxford Press, 1985), ch. 8, pp. Clare Cushman, ed., The Supreme Court Justices: Il­ 240-303. lustrated Biographies, 2d ed. (Congressional Quarterly 92Leonard Garment, of Law: The Hill Case," The Press, 1995). p. 247. Taft did graduate from Cincinnati New Yorker, April 17, 1989,pp.90-IJO. Law School in 1880. Herbert S. DuffY, William Howard 93See Lewis, Make No Law, p. 188 for an account of the Taft (Minton, Balch & Co., 1930), p. 7. conversation with Dean. 85William Safire, Before the Fall (Doubleday & Co., 94Garment, "Annals of Law," p. 106. 1975), p. 21 95Garment, "Annals of Law," p. 107. U.S. 374 (1967). 96Stephen E. Ambrose, Nixon (Simon and Schuster 1989), U.S. 254 (1964). vol. 2, p. 82. 8spublic Papers of Presidents of the United States 1969 97Schwartz, Unpublished Opinions, p. 302. A 9/23/02 (U.S. Government Printing Office, 1971), June 1969, letter to author from Anthony Lewis now puts him as a no. respecter ofthe position taken by Nixon in Hill. Wilson, Brandeis, and the Supreme Court Nomination

MELVIN I. UROFSKY

In late January 1916, many readers of the New York World chuckled as they looked at Rollin Kirby's editorial cartoon entitled, "The Blow that Almost Killed Father." In the drawing, Kirby showed a Wall Street big-shot-one who looked a little like 1. P Morgan-prostrate in his desk chair, the ticker-tape machine broken and leaning against the desk, a picture of the New York Stock Exchange askew on the wall, and a newspaper dropped to the ground, its headline blaring "BRANDEIS FOR THE SUPREME COURT." The nomination of Louis Dembitz that remains at the core of our First Amend­ Brandeis of Boston to replace Joseph Rucker ment jurisprudence,2 put forth the proposition LamarofGeorgia triggered a four-month battle that the Constitution protected an individual waged before the Senate Judiciary Committee right to privacy,3 and limited the power of the and in the newspapers andjournals ofthe coun­ federal courts in an attempt to reinvigorate the try. For historians-and for many reformers of federal system.4 the time- Woodrow Wilson's appointment of We are, however, not concerned in this ar­ Brandeis to the nation's highest court consti­ ticle with Brandeis' enduring achievements on tutes one of the high points of the Progressive the Supreme Court, nor even with the bruising crusade and a major legacy of Wilson's New confirmation battle that took place before he Freedom. For constitutional scholars, Brandeis could take the oath of office.s Rather, we want has long been considered one of the most im­ to look at the reasons that President Wilson had portant persons to serve on the Court, the for making such a controversial appointment, Justice who--among other accomplishments as well as the reasons why Brandeis, who for in his twenty-three years on the bench-first so many years had been a fierce critic of the suggested that the Due Process Clause of the courts, decided to accept. I would like to sug­ Fourteenth Amendment shou ld incorporate the gest that, as in so many things in public life, liberties protected by the Bill ofRights, I artic­ we find here a mix of the overtly political and ulated a theory offree speech tied to citizenship the deeply personal. 146 JOURNAL OF SUPREME COURT HISTORY

The appointment of louis Dembitz Brandeis (left) to replace Joseph Rucker lamar (right) on the Supreme Court in 1916 marked a high point of the Progressive crusade but was a controversial move for President Woodrow Wilson.

* * * * * rallied behind Roosevelt's Bull Moose Party in 1912. For Wilson, the Brandeis appointment can The core of Wilson's original New Free­ be seen as a means not only of shoring up his dom had little that appealed to that group, other chances to be re-elected to the White House in than the reduction of tariffs embodied in the 1916, but also ofrewarding a loyal political ally 1913 Underwood Tariff. The establishment of and putting a man on the Court who fulfilled the federal reserve system constituted an im­ ideals that Wilson himself had once held to be portant step in creating a modern banking sys­ unattainable.6 tem needed to avert crises like the "bankers' Wilson had been elected by less than a panic" of 1907, but it did little to speak to the majority of the popular vote in 1912, although concerns of people such as Jane Addams of he had a comfortable margin in the Elec­ Hull House. The reform of the antitrust law in toral College.7 Had Theodore Roosevelt not the 1914 Clayton Act may have pleased some bolted from the Republican party in 1912, it labor leaders because of its supposed exemp­ is possible--even likely-that Wilson would tion of unions from antitrust prohibitions, but have lost to William Howard Taft. The coun­ critics like Robert M. LaFollette believed it did try was at peace and prosperous, two condi­ not go far enough in reining in the evils of big­ tions that usually favor an incumbent seek­ ness, while the creation of the Federal Trade ing re-election. In 1916, Theodore Roosevelt Commission struck many as playing into the had seemingly made his peace with the GOP, hands of business interests. With the outbreak which united behind the austere Charles Evans of war in Europe in August 1914, Wilson Hughes ofNew York, a successful reform gov­ allowed the Rayburn bill, which provided for ernor ofNew York who had resigned from the the regulation of the stock market, to die in the Court to run for the White House. For Wilson House rather than chance further disruption of to win the election, he had to gain the support the economy. The President announced that of those social-justice progressives who had the New Freedom had been completed, and THE SUPREME COURT NOMINATION 147 in many ways it was; but that did not bring ular vote in 1912; a reversion to normal vot­ him any applause from the former Bull Moose ing habits would make a Republican victory supporters. inevitable. The war issue-whether the United States To do this, Wilson would have to aban­ should join the Allies or stay neutral- split don the belief that the federal government both parties. But the Democrats were also in had no role to play in protecting underprivi­ disarray on the domestic front, and although leged or disadvantaged groups, the very peo­ the party controlled both houses of Congress, ple whose welfare concerned the independent its leaders proved unable to make headway on bloc. Wilson had already started down the road several seemingly minor proposals the Pres­ of greater federal involvement in the economy ident had suggested to them in conference.8 with the Federal Reserve and the Federal Trade Faced with this scenario the President made Commission Acts. In the spring of 1916, he two crucial decisions in January 1916. First, lost his indecision and helped push through in spite of the seeming confusion of views, Congress the Hollis-Bulkley Act to provide a majority of the American people favored federal underwriting of a rural farm cred­ preparedness in case the United States should its program, the Kern-McGillicuddy bill es­ have to go to war, but preferred that the nation tablishing a model workmen's compensation stay neutral. Second, the only hope for vic­ measure for federal employees, the Keating­ tory in the November elections lay in attract­ Owen child labor bill, a measure giving ing to the Democratic fold the large indepen­ the Philippines greater autonomy, and the dent bloc that had supported Roosevelt in 1912. LaFollette Seamen's Act. By the fall of 1916, Wilson had only polled 42 percent of the pop- the Democrats had enacted almost every

This 1912 cartoon shows the race to the White House with Wilson on a donkey and William Howard Taft on an ele­ phant being bitten by Theodore Roosevelt on a bull moose. Wilson was elected without a pop­ ular majority, but by a comfortable margin in the Electoral College . If Roo­ sevelt had not bolted from the Republican party, Wil­ son might have lost the election. 148 JOURNAL OF SUPREME COURT HISTORY

Wilson's New Freedom had little that appealed to the former Bull Moose supporters. The establish­ ment of the Federal Re­ serve System and the re­ form of antitrust laws pleased some, but in the eyes of progressives such as Senator Robert M. laFollette, they did not go far enough in challenging bigness. LaFollette (left) would praise the Brandeis nomination in 1916.

plank in the Pr{\OTP"" plat­ a affront to the masters of torm of 1912. tal as well as to conservative Republicans."9 More than any other measure, "If Mr. Wilson has a sense of humor the nomination of Louis D. Brandeis to the a Washington told former Court won Wilson sustained ap­ President "it must be working overtime from the independent As today. When Brandeis's nomination came in Wilson Arthur Link notes. the the Senate .... There nomination "was an open defiance of and wasn't any more excitement at the Capitol THE SUPREME COURT NOMINATION 149 when Congress the War * * * * * Resolution."lo Taft had coveted a There has been some debate as to who sug­ position on the Court, and for some reason gested to Wilson that Brandeis fill the vacancy Wilson might him. His com­ caused Lamar's deutb. In the ment is worth because it an excellent summary of conservative reaction to the appointment:

It is one of the deepest wounds that I eral Thomas W. have had as an American and a lover appoint Brandeis. after Lamar's of the Constitution and a believer in went to the White House and asked progressive conservatism, that such a if Wilson had of a successor. Wilson man as Brandeis could be put in the said that he had been to hear from Court, as I believe he is to be. He is a muckraker, an emotionalist for his own purposes, a pro- to ask you not to r""''''''',r! by jealousy, a a man to recommend Louis Brandeis for the who has certain ideals in his ima­ Court. reason is that he is one of gination, but who is utterly unscrupu­ the most nrr,an~'''''!p men in the United ,.",,...,, n" and in method in them, a and equal to man of infinite ... of great The fact of the matter is that Wilson tenacity of purpose, in my needed very little ''''''''TIr,hna known and trusted Brandeis as an advisor ever since ment, of much power for evil. II the 1912 The two men had first met responded as Wilson had at Wilson's summer home in Sea Girt, New would. Radical reformer Amos Wilson had asked Brandeis to meet Pinchot wrote to a leading with him in an effort to his re- nalist, Norman Hapgood, that it "took courage the antitrust and it had been & sense to make this & I take off Brandeis who had formulated the New my to the President." Pinchot went Freedom's philosophy regarding monopoly.2o on to note that the Brandeis appointment "will Bmndeis had campaigned for Wilson pull a strong oar for Wilson in Minn, S & out the Midwest, and had written a series N Dakota and other Roosevelt strongholds.,,12 of articles extolling the New Freedom over Senator Robert M. a maverick Re- Theodore Roosevelt's New Nationalism.21 hailed the and acknowl­ When the President had to choose between two the debt of the American to competing and contrary models for the Woodrow Wilson for making it. "In appoint- Federal Reserve System, it had been Brandeis Mr. Brandeis to the Bench Pres­ to whom he had turned.22 ident Wilson has rendered a public ser­ Wilson hud wanted to make Brandeis vice ... [It] is proof indisputable that when the a member of his Cabinet. But when ru­ President sees the is not afraid to follow mors circulated that Wilson intended to name it. Organized labor spoke with one voice Brandeis-an inveterate foe in praising the nomination, for Brandeis had pecially of monopoly-as been one of their most effective advocates. Wilson was inundated with protests from the The White House was inundated with sev­ business community, and he finally to eral hundred letters following the announce­ the advice ofColonel Edward M. House that he ment, the great of them not Brandeis into the cabinet. Brandeis, the appointment. 14 who had not any reward for his role in 150 JOURNAL SUPREME COURT HISTORY

Brandeis first met Wiison at the future President's summer home in Sea Girt, New Jersey, to which he was called to help Wilson tackle the antitrust prob­ lem. Brandeis became Wil­ son's advisor, campaigning for him throughout the Mid­ west and writing articles ex­ tolling the New Freedom over Roosevelt's New National­ ism. Above, Wilson accepts the Democratic presidential nomination at Sea Girt.

the remained 10yaiLo Wilson, a fact cause Brandeis had done what to Wilson had that the President greatly seemed the impossible-become a learned and On a admittedly more successful as well as an effective polit­ let me suggest that Wilson ical reformer. admired Brandeis as the he him­ he must have had Brandeis in mind self had once wanted to in an address he gave to the Gridiron Club in that it was an impossible dream. Wilson had Washington about six months after Brandeis wanted to go into and ill had been sworn in as an Associate Justice: his life had believed that law would be the road that would him there, But he and the law The ofcoJd were a mismatched pair from the start, and in constitutional argument, is gone, a letter to his Wilson concluded that thank God. We do not now discuss without a private income, he would never be so much what the Constitution of the able to devote his life to To earn a suf­ United States is as what the consti­ ficient living through the law, however, would tution human nature what the preclude his into politics. "The law is essential constitution of human so- more than ever before a jealous mistress," he is, and we know in our hearts and jf a man "is to make a that if we ever find a or a time at the bar he must be a lawyer and nothing where the Constitution of the United else . ... But he cannot be both a learned States is contrary to the constitution and a profound and of human nature and human we have got to the Constitu­ make the law a means One might tion of the United States. The Consti­ speculate that Wilson had found him­ tution, like the Sabbath, was made for self drawn to Brandeis thirty years later be- man and not man for the Constitution. THE SUPREME COURT NOMINATION 151

* * * * Let us turn now to and ask he not only accepted the offer of a seat on the court, but then so hard to en­ sure his nomination. His initial comment to his brother-that feeling is rather-'Go it husband, Go it bear' with as 'inter­ ested "-must be taken with a rather grain of salt. I would suggest that Brandeis saw the

nomination to the '''''II! <'·llllO cation not only of his Zionist activities as well. His activity the confirmation fight-hidden from the pub­ lic but now well known to him the opportunity to defend his often un­ orthodox practice of the law. A seat on the nation's court would him a fo­ rum not only to preach but to the message he had been articulating for more than a decade: that the law had to reflect and take into account the realities of modern Attorney General Thomas Watts Gregory recom­ mended that Wilson appoint Brandeis because of the life, Massachusetts lawyer's progressivism and because Brandeis was far from a and might Gregory considered him "equal to the best in learning and ability." better be considered a Burkean a person who believed that in order to the best of the past, one had to adapt as cir­ [ have known of some judges who cumstances change. There is no how­ did not that. I have known of ever, that he stood as one of the reformers of the era, a fact recog­ the Constitution was a strait jacket nized by friend and foe alike. His opposition to into which the life of the nation must and monopoly in particular, be whether it could be with '" '""":I I\1t:: itc"lcSJa'llUlll. his role a true regard to the laws of life or affair, and his success not. But judges of that sort have now in the courts to approve reform legis­ to be led to a back seat lation all made him an anathema in the eyes with all for their years and of the conservatives. Brandeis certainly rec­ their lack of information, taken care ognized that in him to the of until pass unnoticed from the Wilson was reaching out to the and stage. And men must be put forward in on the opposition to him, he whose whole comprehension is that wrote that h[T]he that has come up shows law is subservient to life and not life clearly that my instinct that I could not afford to 25 to law decline was correct. It would have been, in ef­

In that last sentence, he indeed summed up ti"~""'r"" ('f the forces. Dur­ much of what Brandeis had been for ing the four-month over the two decades. forces from every camp rallied in 152 JOURNAL SUPREME COURT HISTORY his behalf, and in doing so vindicated Wilson's strategy. the The nomination also silenced many of Brandeis' opponents within the Jewish com­ _ unethical in his munity. In 1913, Jacob Schiffand other Jewish law 30 Since Brandeis could not ap­ bankers had opposed Brandeis receiving a pear in person to rebut these he Cabinet mainly because they per­ his defense in the hands of his law ceived him as an antibusiness Edward Francis McClennan. who would deal because he was not a "Tf'nr,.,<:e'n with the and those of the way Oscar Straus, >Jvvl\.UU ist Norman Hapgood. who would handle the in Theodore Roosevelt's administration, had pre~s. been. in 1914, Brandeis had taken over After a year in St. Brandeis had leadership of the American Zionist movement 1879 with his and turned it from a marginal club into a major Samuel force in American Jewish life. He had also be­ gun the American Jewish as a direct challenge to the hegemony that the American Jewish Committee had at that time. The led by Schiff and Louis While the firm never had the oatromu!e of the Marshall, believed Zionism to be inimical to old-line Boston and business estab­ the demands of American since it counted among its clients such one could not be loyal both to the United States newer firms as Filene Store and and to a movement that aimed at a the hotelier Howard Johnson. While the firm Jewish nation in Palestine.28 Brandeis had re­ did many ofthe usual sponded what the philosopher those who hire Horace Kallen later tenned "cultural plural­ "would rather have clients than be ism," and also by the Zionist of ,,31 Brandeis often grilled prospective a democratic state in Palestine with and even clients on their traditional American ideals. He argued that to ascertain whether were, by his stan­ "Jews were reason of their tradition and in the If so, he would be a pow­ their character peculiarly fitted for the attain­ erful advocate for their cause; if not, he would ideals." This led him to urge them to and to do the thing. not only Zion­ And if he did become an by all re­ but welding the two to­ ports he was extremely effective and more than ." he a little ruthless. In litigation, Bran­ "we must be better Jews; and to be better deis preferred to think of himself as "counsel we must become Zionists."29 The nomination to the rather than an advocate for confirmed Brandeis' argument. Af­ one particular side, and by gaining the trust ter how much better an American could one of all was often able to effect a set­ be if the President of the United States named tlement satisfactory to all concerned. When that person to the engaged by the Interstate Commerce Com­ The second reasoning in­ mission to assist it in the so-called Advanced volves the manner in which he conducted his Rate Hearings. Brandeis saw himself in this law In those days, nominees same 1 ~VUll::'Cl to the situation-and did not themselves attend Senate confirma­ thus who believed he tion Rather, the committee members had been look after their inter­ heard from people sUDPorting the nomination ests. While there is no that Brandeis THE SU ECOU NOMINATION 153

M+"rn",tc.rI to live up to his own ethical stan­ fact to make the see that the at least one scholar has suggested that had even at that these practices A","r~t"rm",rI a few weeks before the bounds legal behavior. Wilson named him to the Brandeis gave As a number of those who had either lost Bar Association in to Brandeis or felt had been betrayed out his belief that the law had him in his role as counsel to the situation testi­ not and castigated the fied before the Senate Judiciary Committee, conservatives for their blindness:37 Brandeis analyzed their testimony in his Political as well as economic and Boston office, His secretaries would bring social sciences noted these revoJu­ in the files from those cases to refresh [in the economy his memory, and he would then dictate a rebuttal to the charges and send the unwritten or them~sometimes five or six letters a day~to as from legislation~ McClennen in Washington. McClennen deaf and blind to them. would then arrange to have this material en­ Courts continued to tered as rebuttal. While Brandeis' unortho­ arisen social needs. dox many people. in the end the committee could find in them that him from the Court ual and of the sacredness of well be summed scien­ up in a comment later made Mr. Justice tific half-truths like "The survival Sutherland about Brandeis: how I detest of the translated into that man's ideas. But he is one of the greatest meant "The devil take the technical I have ever known."34 hindmost," were erected by judicial Finally, I would suggest that Brandeis saw sanction into a moral law. Where the Court as a where he coul d statutes to the new act as a judge in the way that he had been social spirit were constitu­ urging judges themselves to act for nearly a tional, imbued with the re­ decade. Brandeis was part of the movement in lentless of of­ American law known as ten construed them away. Where any dence," of which Roscoe Pound and Oliver doubt as to the of Wendell Jr., were the best-known the­ oretical and Brandeis courts all too frequently declared the acts void.... law has every­ where a behind the bound by a set of facts of life. cases went back to the I

It placed t'lrr,t'lprhf at the center of It is very likely that Wilson saw a copy of this its logic, and utilized the notion of a to talk, since Brandeis' charge that contract as a barrier to reform ofany had not kept pace with social sort. This "classical "as William Wiecek echoed in the President's remarks has termed it,35 was oblivious to few months later and quoted earlier. the changes that industrialization had wrought Brandeis had attacked the judiciary as in the economy, the polity, and the blind to social reality. The nomination would The great triumph of the Brandeis brief in him the chance to explain what the law Muller v. Oregon was that it fact upon should be-not as an outside but from 154 JOURNAL OF SUPREME COURT HISTORY

~e\\...

just a few weeks before his nomination, Brandeis gave a speec h to the Chicago Bar Association in which he spelled out his belief that the law had not kept pace with the times and castigated the conservatives for their blindness. Predictably, his appointment caused an uproar in the busi­ ness community, but it was also criticized by pro-business Jews and by those who thought Brandeis had behaved unethically as a lawyer because he put his own THAT DEANllEIS iH'PlIlt\T?l:lE\T beliefs before his client's ClltHW~ .w interest. within the sanctum itself. It was an opportunity friends here feel thathe is the one man he could not ignore38 to bring to the Court what it greatly needs in the way of strengthening. * * * * * It will doubtless be called some­ Shortly after the nomination was an­ thing of a political appointment, and nounced, Brandeis' wife Alice wrote to her there is some little of that in it, but brother-in-law that she had some misgivings: 39 the President himself told Louis that Louis has been such a "free man" all he wanted him in the Court because these years but as you suggested- of his high respect for and confidence his days of "knight-erranting" must in him. have, in the nature ofthings, been over before long. It is of course a great There were, indeed, all of these aspects opportunity for service and all our 111 the appointment~politics, serVIce, and SUPREME COURT NOMINATION 155

2Whitney v. Caiij(Jrnia, 274 U.S. 357, 372 (1927), Brandeis, concurring. 30imstead v. United Siales, 277 U.S. 438, 471 (1928), Brandeis, 1., dissenting. "Erie Railroad Co. Tompkins, 304 U.S. 64 (1938). 5The story of the confirmation has been told well in Alpheus Thomas Mason, Brandeis: A Free Man's Life (New York: Viking, 1946), chs. 30 and 31, and in A L Todd, Justice on Trial: The Case of Louis D. Brandeis York: McGraw-Hili, 1964}. might speculate that Wilson was also determined not to repeal the mistake he had made in puttll1g James C. McReynolds on the Court two years earlier. There is, however, no reference to McReynolds in the Wilson Papers for period. 7Thc Democratic Wilson polled 6,293,019 popular Theodore Roosevelt running as an independent garnered 4,1 19,507, Republican William Howard Taft (the incum­ bent) 3,484,956, and Eugene Debs, the Socialist candidate, received 901,873 votes. In the Electoral College, how­ ever, Taft received 8, Roosevelt 88, and Wilson the rest, 435. 8Arthur S. Link. Wilson: Confusion and Crises, 1915­ 1916 (Princeton, NJ: Princeton University Press, 1964), 321. Alice Brandeis had misgivings about her husband's 9Arthur S. Link, Woodrow Wilson and Ihe Progressive appointment to the Court, but she conceded to Era, 1910-1917 (New York: Harper & Brothers, 1954), her brother-in-law that Brandeis' '''days of knight­ 225. erranting' must have, in the nature of things, been over before long." IOGeorge 1. Karger to William Howard 'faft, 29 January 1916, quoted in Link. Wilson: Confusions and Crises, Alice Brandeis did not mention: 325. llTaft to Karger, I January 1916, id. self-justification on both sides. What we had 12Pinchot to Norman Hapgood, 29 January 1916, enclosed in late January 1916 was a confluence in Hapgood to Joseph Tumuity, I February 1916, in Arthur of the political and the personal. While there S. Link ai, cds.. The Papers of Woodrow Wilson (67 have been other nominations made for these vols., Princeton, NJ: Princeton University Press, 1966­ reasons, in this instance the confluence worked 1992).36:86. to the benefit not of Woodrow l3Robert M. La Follette, "Brandeis." La Follette:, lv/aga­ zine 8 (February 1916): 1-2. who was indeed re-elected in 1916 with the 14Woodrow Wilson Papers, Library of Congress, Wash­ Bull Moose DC, File VI, Box 522. Althollgh much has made of anti-Semitism opponents of the his life's work as a tion, in the letters to Wilson the minority that opposed a Zionist vindicated, but of the country as Brandeis barely mentioned his religion, They did be­ well. For in the end, the nation's constitutional lieve that he a radical. and tor that reason should not be on the COUl'l. William F Fitzgerald, a conser­ its concern for in­ vative Boston Democratic leader, did say that "the fact dividual liberties-would be strength­ that slimy fellow of this kind by his smoothness and ened through Brandeis' 23-year tenure on the intrigue, together with his Jewish instinct, can [be ap­ nation's highest COLIrt. pointed to the Court] should teach an object to true Americans Fitzgerald to Thomas Walsh, 29 January ENDNOTES 1916, quoted in Link, Wilson: Confusions and Crises, 325. I Gilbert k Minnesota, 254 U.S, 325, 334 Brandeis. I5William Kent to Woodrow Wilson, 27 January 1916, J., dissenting. Papers of Woodrow Wilson, 36: 19. 156 JOURNAL OF SUPREME COURT HISTORY

16Amos Pinchot to Woodrow Wilson, 27 January 1916, Jewish Problem, and How to Solve It 0!ew York: Zionist id.,23-24, Essays Publication Committee, 19(5), 17Norman Hapgood to Joseph Tumulty, 28 January 1916, 30Scc Commiaee on tbc Judiciary, Hearings 011 id,25-26, the Nomination of Louis D. Brandeis to be Associate 18William G, McAdoo, Crowded Years: The Remi­ Justice ofthe linited States Suprcmt' Court, M'h Cong" niscences of William G, MCAdoo (Boston: Houghton­ 1" (Washington, DC: Govcrnmcnl Printing OfTicc, Mifflin, 1931),342-343, 191 Ii), passim, 19Ray Stannard Baker, interview with Thomas W Gregory, 3lQuoted in Ernest Poole, "Foreword," in Louis [), Bran­ 14-15 March 1927, Ray Stannard Baker Papers, Library deis, Business-A Profession (Boston: Smail, Maynaru, of Congress, Washington, DC 19(4), ix, Ill, 20See Louis Brandeis to Alfred Brandeis, 29 August 32Clydc SpillcngcL "Elusive Advocate: Reconsidering 1912, in Melvin L Urofsky and David W Levy, eds" Brandeis as People's Lawyer," 105 Yall! LawJol/l'lwll447 Letters of Louis D, Brandeis (5 vols" Albany: State (1996), Cniversity of New York Press, 1971-1978), 2:660-661; 3'Thcse letters to McClcnnen can be found in Letters of Melvin I. Urofsky, "Wilson, Brandeis, and the Trust Issue, Louis D. Brandeis, 4:33,184, passim, 1912-1914," Mid-America 49 (1967): 118,141. Arthur 34Philippa Strum. Brandeis: Beyond Progressivism Link called Brandeis "the architect ofthe New Freedom," (Lawrence: Press of Kansas, 19(4), 21For Brandeis' role in the campaign, see Mason, JjWilliam ,'v1. Wiccck, The Lost World or Classical Le­ Brandeis, eh, gal Thought: Law and Ideology ill AlIlerica. 1886-1937 22Brandeis to Wilson, 14 June 1913, Letters of Louis D. (New York: Oxford Lnivcrsily Press, 19(8), Brandeis, 3: 113-115, 3r,Mulll!r F. Oregol1, 208 12 (1909), The decision, 23For business opposition, see, for example, edito­ along with the brief that Brandeis compiled with rial in the Bos/on of21 November 1912, warn­ of his sister-in-law, Josephine Goldmark. can be found in ing that naming BrandeiS the Cabinet would bring on Women in Industry ... (Nell' York: Consumers' League, widespread depression, For House's role, see Papers of 1908), Woodrow Wilson, 27:23, 61, 130, 137-138. See also Bran­ 37Louis D, Brandeis, "The Living Law," 10 Illinois Law deis to Alfred Brandeis, 2 March 1913, Letters of Louis ReFlew 461,463-464 (1916), D. Brandeis, 3:37, did he once on the Court. The "Brandeis brief" of 24Wilson to Ellen Axson, 30 October 1883, Papers of the appellant became Ihe Brandeis dissent, packed Woodrow Wilson, 2:501. facts to explain why the legislature had passed the law 25Address to Gridiron Club, 9 December 1916, quoted in and why the majority of his brethren were foolish to ig­ Link, Wilson: Confusions and Crises, 324, nore these faels, A good example his dissent in Jay 26Brandeis to Alfred Brandeis, 12 February 1916, Letters Burns Baking Co, v, Bryan, 264 U.S, 504, 517 (1924), in of Louis D, Brandeis, 4:54, which the dis,cnt endorsing a law regulating the size of 27/d. bread loaves was justi fied by, as some people have put it, 28See Melvin L Urofsky, American Zionism from Herzl more than one would ever wanl to know about the baking to the Holocaust (Garden City, NY: Anchor/Doubleday, business, 1975), chs, 4 and 5, 39Alice Brandeis to Alfred Brandeis, 31 January 1916, in 29Baltimore American, 16 September 1914; Brandeis, The Mason, Brandeis, 466, William Howard Taft and the Importance of Unanimity*

SANDRA O'CONNOR

This Term, the Historical Society has put on a wonderful series about the man who is as this Court's Chief Justice. Through his John Marshall secured tor this Court a role in shaping the nation's most important principles: racial equality, individual the meaning of and so many others. Learning more about John Marshall this Capitol to the White House on Inauguration Term has caused me to think about another 2 She was a difficult woman to refuse. Chief who deserves al­ on the other was an unpop­ most as much credit as Marshall for the Court's ular President. His bid for re-election was modern-day but does not otten receive so unsuccessful that he himself described his the recognition: William Howard Taft. of defeat as "not only a landslide but a tidal course, was remarkable even before he became wave and holocaust all rolled into one general ChiefJustice-but even the presidency did not cataclysm."} his failures as hold as much charm for Taft as did his eventual however, as chief executive of the Court Taft position on the Court. Mrs. Taft noted in her could only be considered a success. When he memoirs that "[N]ever did he cease to regard took over the job, he found a federal system a Supreme Court appointment as more overwhelmed with cases, the Supreme desirable than the "I Court's docket to be as much as five years be­ Mrs. Taft, disagreed. She loved hind and the other federal courts in First Lady, and was a one, at that. similarly dire straits.4 Taft, with his She was responsible for the cherry ence as an executive and his connections on a feat for which I am Hill, succeeded in the ap­ She also made a bit of of twenty-four additional federal on March 4, 1909 by becoming the first judges.s He also founded the to to accompany her husband from the the Judicial Conference of the United States, 158 JOURNAL SUPREME COU HISTORY

Helen Taft (pictured with her husband and son) be­ came the first Fi rst lady to accompany her hus­ band from the Capitol to the White House on In­ auguration Day. She pre­ ferred being the wife of a President to being that of a Chief Justice.

the job ofwhich it became to keep statistics on ofdecision for the various the work of federal courts and to re­ courts to pass on constitutional forms to the federal system functioning and other important questions."s Control over smoothly.6 its own docket allowed the Court to pass over Taft lessened the load on the Supreme lawsuits and more time on these Court successfully sorts of questions: pass a statute that would In keeping with his vision of the Court as control over its own docket by a player in issues of national Taft certiorari review for much of also lobbied to appropriate funds to what had previously been appel­ build the Supreme Court Building, a late jurisdiction.7 But Taft's concern for the whose grandeur matched Taft's sense Court went beyond he had of the significance of the business conducted a vision of the Court much grander than that therein 9 of a court of error justice for individ­ Chief Justices Taft and Marshall also ual As Taft saw it, individual placed value on keeping the Courts over received all the justice they through which unanimous. John Marshall the federal district courts and courts of ap- his Chief Justiceship by putting to an The Supreme Court's role was only "to end the English practice of seriatim opinions, THE IMPORTANCE OF UNANIMITY 159

Not only was Chief Jus­ tice William Howard Taft an effic ient administrator, but he pushed Congress to allow the Court to pass over ordinary lawsuits in order to concentrate on constitutional issues and uniformity of decision in the appellate courts.

where each Justice wrote ~pr'''r''tpl\! to Court for consensus did not his own view of the case,lO Marshall accom­ present the complete In order to main­ plished this writing the ofthe Court tain Justices on the Marshall Court himself: in his first four years on the also in opinions with which he wrote in all of the cases not decided per did not agree. Marshall began one of his rare curiam, save the two in which he did not dissents with a disclaimer: "I should now, as In these four years, there were is my custom, when I have the misfortune to no dissents and only one ~PT"lr"rp differ from this Court, silently in its opinion. I I opinion. Marshall his Court's ability to Thomas who was achieve thus: "The course of every at the outcomes reached tribunal must that the opinion imous Court, had another which is to be delivered as the opinion of the the Marshall Court's unanimity. Jefferson at­ court, is submitted to the consid­ tributed the Court's level of agreement not to eration of all the judges; and, if any part of Marshall's willingness to opinions to the reasoning must be disapproved, it must be reach consensus, but rather to the Chiefs so modified as to receive the approbation of overwhelming influence on the other Justices, before it can be delivered as the When the time came for President Madison to ofal1."12 Marshall's description ofa fill a vacancy on the Jefferson lamented: 160 JOURNAL OF SUPREME COURT HISTORY

"It will be difficult to find a character of firm­ should be in courts of ness enough to preserve his on last resort. 22 the same bench with Marshall."14 The Court led by Chief Justice Taft was These norms affected even Justices also remarkably cohesive: 84 percent of the Holmes and who, with Jus­ opinions of the Taft Court were unanimous. IS tice Stone, vexed Taft with their vigorous dis­ Taft did not approve ofdissents. believing that senting "[I]t more and its than merely to with the three was great enough to declare them record my individual dissent where it is better all "of course hopeless" when would not to have the law certain than to have it settled join the other six Justices in a case "to steady either way.,,16 Taft's concern with the the Court."24 But remarkably, even the "Great of the law had to do not only with the need for Dissenter" Holmes it was "useless and people to plan their lives and business trans­ undesirable, as a rule, to express dissent."25 actions around it; it also had to do with the Brandeis, too, that he could not "al­ of the institution itself. ways his to to Taft, "Most dissents elaborated, are a form himself when he felt he had been out of line of don't do any and only with his fellow Justices on too many recent weaken the of the Court."17 Accord- occasions.26 he asserted that he "would not think of At least some of the Taft Court's agree­ opposing the views ofmy brethren if there was ment, however, was due to the Chief Justice's a majority my own."18 In general, he efforts to keep it Taft kept to this only 20 dissents dur­ ofthe generalju­ 19 ing his nearly ten years on the Court. On dieial norm dissent~he was the chair the rare occasion when he did he was of the committee that drafted Canon 1927 But troubled it. He his dissent he also made many more efforts tar­ in Adkins v. Children s Hospital with a dis­ geted at his Court. One estimate has it that claimer: "1 to differ from the Court Taft was directly for suppressing in these cases. ,,20 at least 200 votes.28 Taft's of unanimity on the How did he do it? who did not Court was no doubt helped by norms ofthe day, have the jurisprudential talent ofMarshal I, was which generally disfavored dissent.21 Canon surely not able to keep the Court sim­ 19 of the code ofjudicial ethics in place at the ply by the force of his time stated that he used his influence over appointments to the Court to block those who he thought would "al­ It is of high that most certainly" be dissenters, such as Learned constituting a court of last resort Hand. 29 Taft made every effort to maintain a should use effort and self-restraint to personal with all ofhis promote of conclusion and so much so that Justice Holmes in 1925 re- the influence of judicial that before . have we gotten A judge should not with so little jangling and dissension. of opinion or value more Taft also used his power to ensure his individual reoutation than that the opinion writer would garner as many that of the court to which he should votes as Dossible for his view.3l be loyal. in case of conscien­ But unanimity did not end with tious difference ofopinion on funda­ op 111 IOn it was an ongoing strug- mental principle, Professor Robert who is THE IMPORTANCE OF UNANIMITY 161

PIERCE. BUT.t....E R.. LOU1'S D. CR.e.N D E:I ~ c..eop.G8 ~ UTHeR.LAND EUW1\RD T . ~l!.NFORO

W fL L1~ V~NDEVAN.'t.eR... dosEPH M':.KENNA OJN~ r-:loI.. ME::S dAMES c _ M ~ REYNoLDS

To suppress dissenting votes on the Court, Taft maintained good relations with his brethren and used his assignment power to assure that the opinion writer would garner as many votes as possible. The members of the Taft Court in 1925 are pictured above.

writing the Holmes Devise on the Taft Court, versial discussions unnecessary to the result. has uncovered the Court's original conference Taft himself omitted a lengthy discussion of books. He has found that 30 percent of the Congress's Commerce Clause power from one Taft Court's unanimous opinions required a opinion at the request of Justice Pierce Butler, Justice to change his conference vote in order commenting that although the removal meant a to achieve unanimity, and a further 12 percent "real sacrifice of personal preference," "[Ilt is required a Justice to side with the majority af­ the duty of us all to control our personal pref­ ter originally passing or registering a tentative erences to the main object of the Court, which vote.32 is to do effective justice.,,35 In part, these switches occurred because When methods of accommodation failed, the Justices ofthe Taft Court did what Marshall however, the Justices of the Taft Court were had aspired to do: achieve unanimity by care­ willing to sign onto unanimous opinions that fully crafting opinions to meet the concerns of contained statements of the law with which all of the Justices.33 Taft led this practice by they did not agree. Correspondence between example, holding up voting on a complicated the Justices shows that many oftheir votes were utility valuation case to allow Justice Brandeis changed only under protest. Justice Butler re­ to work through his concerns and then schedul­ sponded to a Holmes opinion thus: "I voted ing an entire day ofdiscussion on the matter.34 the other way and remain unconvinced, but dis­ Taft also encouraged the Justices to keep their senting clamor does not often appeal to me as opinions to bare essentials, avoiding contro­ useful. I shall acquiesce." Other Justices were 162 JOURNAL OF SUPREME COURT HISTORY

39 of the decisions were unani­ mous, and decided of one. The numbers have remained stable since. the statistical in some Court sounds a lot like the Court

the concerns ofas many ofour We

never heard express seriousness the view about which Justice Brennan used to that the most ski II for a Court Justice to have is the to "count to fiye. The statistical differences between the Taft Court and the

the extensive revision of in response to comments by other Justices. Unlike the Jus­ tices of the Taft Court, neither my nor I make a ofjoining with which we do not agree. While unanimity is Like many of the Justices, Pierce Butler acquiesced to signing onto a unanimous opinion to which he did most certainly a ofthe not agree because "dissenting clamor does not often it does not overwhelm our other goals. When appeal to me as useful." agreement cannot be each one of us takes the opportunity to make our more blunt Justice Brandeis concurred in an ment known, often forcefully. Rather "I think than following Taft's Canon 19, we I think, follow the practice recommended by a later Chief Justice, Charles Evans Hughes:

When can be obtained "Sorry, I cannot agree. without sacrifice of conviction, it Times have In the 1991-2000 commends the decision to only 44 percent of the Court's opinions public confidence. But unanimity were unanimous, with 19 decided by which merely formal, which IS only one vote. While these numbers do not in­ recorded at the expense of dicate the sort of political divisions of which conflicting is not desirable in a we are sometimes the current Court court of last resort, whatever may be has not achieved anywhere near the the effect upon public ooinion at the level ofconsensus by the Taft Court. In time38 that level of agreement did not last In the only a decade after Taft left the ironically, we owe our to bench, the statistics looked more modern­ dissent in such cases in Dart to Chief Justice E IMPORTANCE OF UNANIMITY 163

Taft. Taft's focus on unanimity was Brennan called motivated by a concern for the institutional future litigants and all those who must be gov­ of the Court. It naturally accom­ erned the law of the scope of the panied Taft's to transform the Court Court's opinion. from simply a higher appellate body to an ex­ most importantly, the dissent of national principle. Taft was as con­ plays role in those members of the cerned that the Court be a presence in public who with the Court's opinion the public mind as he was that it be a grand that their though ultimately not suc­ presence on Avenue. He rightly rec­ were at least understood and taken that too much seriously. The citizens of this nation are edu­ con­ cated and aware enough to understand that the fidence in the institution and its decisions. No questions that come before the Court doubt the same can be said of John have easy answers. The existence of dissent who was dedicated to the Court as embodies·-the a body justified in in our decisions. nized power ofjudiciaJ review. It is the success a very unsophisticated public could be of Taft and Marshall in the Court's duped into thinking the law on such contro­ that allows us the luxury of express­ versial issues as abortion ing our individual views and the of criminal defendants could be Although I believe that the Court ought as to engender no to be careful not to the nest egg our ment whatsoever. reolec,essors have left us, I am thankful that This function of dissent demonstrates one it is there to use when needed. Dissents can thing Chief Justice Taft may have missed: at play an important role in the future course of the existence of dissent can the law. One need look no further than Jus­ rather than the Court's tice Holmes' dissent in 40 or Justice a quote from Chief Justice Harlan's in v. 41 to see the useful: that can ultimately come from the ex­ [W]hat must ultimately sustain the pression of a minority view. In Harlan's Court in public confidence is the cha­ view in Plessy was so worth that racter and independence of the when the Court came around to it in are not there simply to Brown v. Board 42 Chief Justice decide cases, but to decide them as Warren went to great efforts to do so unani­ think they should be decided, and mously. and Lochner show us that what while it may be that they was once simply a powerful by cannot always agree, it is better that one individual may eventually become the law their should be main­ of the land. This is perhaps the most obvious tained and recognized than that una­ advantage of opinions. nimity should be secured through its There is value to dissent even ifit does not sacrifice.45 eventually carry the day. opinions can force the Justices in the majority to respond We should never lose sight of how to honing the Court's Karl table it is when the Court cannot find its way Llewellyn has referred to this function of dis­ to agreement. The Court must always sent with an idiom that particularly through all available means, to find grounds to the cowgirl in me: herd on the on which there can be genuine I majority."43 Dissents can also serve to limit the feel pride in the Court when we are able to is­ holding ofthe majority opinion--what Justice sue unanimous opinions in controversial cases, 164 JOURNAL OF SUPREME COU HISTORY

as we did this Term in a difficult case or two. IOPercival E. Jackson, Dissent in the Supreme Court 21 But when agreement is not oossible, I also feel (1969). pride when my and r are able to I lid. 12/d. at 22. disagree honestly and I admire J3BankojUniled Siaies v. Dandridge, 25 US. (12 WheaL) ChiefJustice Taft for his heroic efforts to 64,90 (1827) (Marshall, c.1., dissenting). his Court his flexibility and his 14Jackson, supra note 10, at 23. willingness to discuss cases repeatedly and at J5Post, supra note 7, at 1283. length until the Court could find 16/d. at 1311 171d. These efforts have contributed more 18Alpheus Thomas Mason, William Howard Taft: Chief to our Court than the other Taft gave us: Justice 223 (1964). more than this building, however grand. and J9AlpIJeu5 Thomas Mason, The Supreme Court from more than even the Taft to Warren 50 (1958). over our docket. I 20261 U.S. 525, 562 (1923) (Taft, C. .1., dissenting). setting an example for future Courts ofthe im­ 21 Post, supra note at 1284. 22Mason, supra note 18, at 219. portance 23See. e.g. Whilney I: CalijiJmia, 274 U.S. (1927); and for United Slales v. Schwimmer, 279 U.S. 644 (1929). necessary to enable us to 24Post, supra note 7, at 1326. tice of his own Court and when dis­ 25Jackson, supra note 10, 18. agreement is necessary. He truly was a great 26Ma50n, supra note )8, at 20 I, 27!d. at 19. Chief Justice. 28/d. 223, citing David 1. Danelski, "The Influence of the ChiefJustice inlhe Decisional Process ofthe Supreme *These remarks were delivered as the Court," unpublished paper, September 1963, p. 20, n. 122. Court Historical Society s Annual Lecture on 29fd.at171 June 3, 2002, 3D/d. at 199. 31fd at 12. ENDNOTES 32Post, supra note 7, at 1332-1333. Wd. 1301. I Donald F. Anderson, "Building '\Jational Consensus: The 34Mason, supra note 18, at 202. Career of William Howard Taft," 68 U. Cin. L. Rev. 323, 35fd., supra note 18, at 204 (diSCLIssing Sonitwy Dis/. of 328 (2000). Chicago v. Ul1/1ed Siales. 266 GS. 405 [1925]) 2Mrs. William Howard Taft, Recollections of Full Years 36Post. supm note 7, at 1340-·1341. (1914),at331-332. 37Anthony Lewis, "In Memoriam: William J. Brelman, 3Andersoll, supra note I, at 336. Jr.," 111 Harv. L Rev. 29, 32 (1997). 4Kenneth W. Starr, "William Howard Taft: The ChiefJus­ 38Charles Evans Hughes, The Supreme Court of the tice as Judicial Architect," 60 U. Cin. L. Rev. 963, 964 United States 67-68 (1928). (1992). 39Post, supra note 7, at 1356. 5/d at 965. 40 198 (.;.S. 45, 76 (190.5). 6fd. 41163 (.;,S. 537, 551 (1896). 7Robert Post, 'The Supreme Court Opinion as Institu­ 42349 U.S. 294 (1955). tional Practice: Dissent, Legal Scholarship and Decision­ 43Kar! Llewellyn, The Common Law Tradition: Decid­ making in the Taft Court," Minn. L. Rev. 1267, 1277 ing Appeals 26 (1960). (200 I). 44William 1. Brennan, Jr., "In Defense of Dissents," 37 SStarr, supra note 4, at 968. Hastings L. J 427,430 (1986). 9fd 4SHughes, supra note 38, at 67-68. The Buddha and the Bumblebee: The Saga of Stanley Reed and Felix Frankfurter

JOHN D. FASSETT

During the years since the first of Justices to the

many relationships have occurred between Justices. Some were aUlll..cClV' involved No such long-Term is more than the years Reed and Felix Frankfurter spent as Brethren. It featured neither consistent amicabil­ nor animosity, but it is because it ran the from admiration and through and condescension to frustration and serious annoyance. Reed and Frankfurter probably were closer for a longer period than any other two Associate of the Court. Moreover, the hundreds of notes, and memoranda must dwarf the output of any other two Justices. Stanley Forman Reed, the Solicitor Gen­ for their mutual devotion to the was Franklin Delano Roosevelt's sec­ Court as an institution and the fact that they ond to the Court, taking were both Reed and Frankfurter the judicial oath on January 31, 1938. 1 Felix had few characteristics in common. Reed was Frankfurter, the Harvard Law School nr"t"00',r tall and an occasional round of who had been an advisor to FDR since the Pres­ Frankfurter was somewhat ident's Term as governor of New York, was his and not athletic. Reed was born in ~el1nJCI\:V third taking the oath on 30, 1884 and 1939. Between then and 1957 when Reed Reed and Frankfurter oc­ born in cupied chambers a short stroll apart along the with his parents to America in 1894, Reed at­ corridor behind the courtroom in the tended private schools in Court building. before 166 JOURNAL OF SUPREME COURT HISTORY

Wesleyan Frankfurter attended a his reputation and particularly his lic school in New York City before at ence as counsel to a tobacco farmers' coopera­ the College of New York, from which he tive led to his invitation the federal gov­ graduated at the age of 19. Reed ernment. With the election ofFOR in as a attended Yale University, with its result of recommendations by several Demo­ class of 1906, and thereafter spent one year cratic Reed remained in the govern­ each at the law schools of the llniversity of ment and moved to the of Virginia, Columbia University, and the Uni­ counsel to the Reconstruction Finance versity of Paris in after a brief career ration (RFC), a Hoover creation that the New as a civil servant in New York City, Frankfurter Deal administration decided to retain. Reed's three years at Harvard Law contacts with Attorney General Homer Cum­ uating with its class of 1905. mings while at the RFC were ofparamount im­ Until he accepted the position of portance in Reed becoming Solicitor General counsel to the Federal Farm Board in Novem­ and then being selected by FDR for ber 1929, Herbert Hoover's ment to the Supreme Court. dency, Reed was a prominent and successful Harvard, Frankfurter spent a lawyer for almost two decades. He brief stint for a Wall Street firm. was an active Democrat and served two Terms He abandoned that career path to in his state ieQislature in his practice, but Henry Stimson in the United States Attor­ ney's office in New York When Pres­ ident William Howard Taft named Stimson of War, Frankfurter accompa­ nied Stimson to Washington, where he contacts, includ­ of FDR. Frankfurter returned to Harvard Law School in 1914 as a professor, and with several interruptions for further government service as well as other ac­ tivities, he continued to teach at Harvard until he joined the Court. The of Reed and Frank­ furter were fundamentally different. One of Reed's law clerks accurately described Reed as follows: uniformly cour­ teous, uniformly polite. Never dispu­ tatious. the of cour­ teously to somebody else's views about whatever, and what he wanted to do with a quiet smile, on the basis of the way he saw it. A Harvard biographer of Frankfurter, Profes­ In 1911, Frankfurter became assistant to Henry sor H. N. Hirsch, described him: Stimson {pictured} in the United States Attorney's of­ fice in New York City. When President William Howard was a vibrant person­ Taft named Stimson Secretary of War, Frankfurter accompanied him to Washington, where his mentor charming, warm, ener­ helped him make many important contacts. He had scores of SAGA OF STAN AND FELIX FRANKFURTER 167

Frankfurter returned to Harvard law School in 1914 as a professor, and, with several inhH'I'IJlntil!ln!: government service as well as other activities, he continued to teach at Harvard until he 1939.

friends whom he loved and who loved Relations Prior to Brotherhood including men prominent in the academy, and the legal Reed's relationship with Frankfurter antedated profession. Few men in the twentieth Frankfurter's appointment to the Court. While century have had the devoted loyalty Reed was counsel at the a serious of so many. dispute occurred between Henry Morgenthau But upon closer examination, and Dean Acheson in the Treasury Depart­ there is a darker side to his character ment, in Acheson '8 As as well. Other, less adjec­ a result, it was necessary to find new slots tives have been used to describe him: for Tommy Corcoran and Ben Cohen, two of nervous, arrogant, domineer- Frankfurter's who had been work­ His with out of Acheson's domain while published in I as members of FDR's "brain trust." Chairman phantic his more Jesse Jones and Reed were to cre­ published diaries reveal an obsessive ate for Corcoran and Cohen at the concern with the motives of his RFC so that could continue their activi­ dicial opponents mixed with high­ ties. It has been opined that Corcoran's transfer pitched anger at their behavior and back to the RFC to be a in dis­ doctrines. 4 guise for Frankfurter and his 168 JOURNAL OF SUPREME COURT HISTORY

Frankfurter selected Reed's clerks from among his students at Harvard law School for several Terms, until Reed began ignoring his advice. Pictured is a reunion of Reed clerks in 1963; the author of this article is standing fourth from the right.

scope to Corcoran's insatiable In addition to his influence in political interests and his uncanny ability to the Solicitor General's office by placement find and recruit other for the there of some of his ablest "happy hot dogs," administration."s Helen Gaylord, who subse­ Frankfurter also Reed accep­ became Reed's secretary and served ted-Frankfurter's advice with to in that throughout his tenure on the pending arguments and assistance in review- Court, served as secretary to Corcoran at the briefs to be fiJed for the government in RFC. She saw Frankfurter his many New Deal cases before the visits to Corcoran and Cohen and thus was ac­ Reed was well aware of Frankfurter's emi­ quainted with the former professor prior to his nence as a Harvard as well as of his arrival at the Court.6 close with both Justice Louis D. When Reed became Solicitor General in Brandeis and FDR. Reed's sources of I Frankfurter promptly advised him information Frankfurter were Reed's of his to assist in the office two sons. Both graduated from Harvard Law Among the able former . John in the class of 1934 and Harvard students selected on Frankfurter's rec­ Jr. in the class of 1938. ommendations to join the small staff were Paul On January 5, I Justice Freund, Hiss. and Charles Wvzanski. all Sutherland delivered to FDR a letter announc­ former law clerks. his intent to retire from the Court. While SAGA OF STANLEY R AND FELIX FRANKFURTER 169

This cartoon appeared on the editorial page of the New Orleans Item along with an editorial praising the nom· ination of Solicitor General Reed for the seat left vacant by retiring Justice George Sutherland. Some observers feared there would be Republican opposition to Reed's nomination, but his appointment was unanimously approved on January 25, 1938. 170 JOURNAL OF SUPREME COURT HISTORY

Attorney General Homer Cummings, Senator M. M. logan, and Stanley F. Reed smiled after Reed's brief confirmation nearings.

been president of the Harvard Law Review FDR ul­ later became publisher of the 110sl1, aCl~el)ited Cummings' strong recom­ Post), had the distinction of mendation and on 15 named Reed Reed and thereafter Frankfurter dur­ to the vacancy. Ten ing the second full Term on the Court. its The Harvard clerks gave Frankfurter an out debate or formal vote, confirmed the entree to Reed the communications. As one ofthem related dur­ To serve as his law clerk the bal­ ing an oral history interview: ance of the 1937 Tenn, Reed brought with him from the Solicitor General's office Harold Justice when he came to a Columbia Law School see Justice would come through who had served as Harlan Stone's clerk during my you see. That was a way of the 1936 Term of the Court But Frankfurter saying "hello" because he had been advised Reed that a successful Justice should my teacher and I had a pretty law clerks from with the result idea that he had been the cause of that John was chosen by Frankfurter my the job, you see ... I felt to serve Reed during the 1938 Term.8 There­ he was my sponsor. So he'd come for the next five Terms, each of Reed's through me and he would tell me a clerks was also from Harvard and was cho­ word or two, a kind ofmysterious hint sen upon the recommendation of Frankfurter. of the errand he was on .... It was Reed's third clerk, Philip Graham, who had clear he was to try THE SAGA OF STANLEY AND FELIX FRAN

at his confirmation appointing until after Attorney Cummings retired because, unlike Reed, the Harvard professor was considered too radical and Cummings worried that opposition to Frankfurter's nomination would hurt the President.

and persuade Justice Reed ofa the professor's other supporters was Justice ular point of view. He was Reed. 11 him.9 Just prior to his appointment, Frankfurter was in another project the Frankfurter's influence over the selection of Court. FOR's first Reed clerks continued for many Terms. 10 had the Court at the outset of the In contrast to the support that 1937 Term amid a furor over disclosure followed Reed's appointment, Frankfurter's re­ the press of his past membership in the Ku sulted in a tidal wave of FDR de­ Klux Klan. Even the "liberal" members of the his action to fill the vacancy caused by Court were concerned about the the death of Benjamin Cardozo until after the FOR asked the professor to attempt, retirement of since the Attorney his contacts on the Court, to calm the General had strongly the of cial waters. Additionally, Stone had contacted

Frankfurter made a determined effort to assist men and women who made up the but the Senator had little interest and quite likely as knowl­ in the ...... "f",,"',.. lessons or patience with his CU!SC<1.U1C in the history and pe rsonali ty. canoe of the Supreme Court as any his lack of success in "educating" living person. 1S Black, Frankfurter was convinced that when Hirsch emphasized that it was not only the new he took his seat on the Court he would be able Justice who anticipated immediate leadership easily to handle his other judicial colleagues. of the Court In The Enigma of Felix Frankfurter, Hirsch wrote: It was inevitable that Frankfurter in 1939 would think of himself as the Frankfurter was also convinced that intellectual leader of the Roosevelt he could easily handle his Court. Members ofthe White House Throughout his life circle expected him to dominate; that Frankfurter had excelled at was why he had been appointed. 16 nalia"-that process of flattering, helping, and need- The former was an anath­ which he was so proud. ema to Justices Pierce Butler and James C. In every previous environment-in McReynolds, the two survivors on the Court the White House, at Harvard, in of the conservative "four horsemen," and interper­ his efforts had been unsuccess­ sonal skills had won for him what he ful with Black and were not welcomed by wanted. 14 Justice Owen 1. Roberts. Thus, his courtships during the remainder of the 1938 Term and Foremost among those whom Frankfurter the ensuing two Terms were restricted to clearly expected to accept his leadership as he those with the Chief Justice plus Harlan Fiske joined the Court was Stanley Reed. Stone, Reed and the two new Justices who joined the Court during that period: William O. Courtship during Hughes' last Terms Douglas, replacing Brandeis, who retired less than two weeks after Frankfurter arrived; and Joseph Rauh, Frankfurter's first law clerk (in­ Frank Murphy, who replaced Butler in Febru­ herited from Cardozo), wrote regarding the ary 1940. As to the new appointees. Liva Baker professor's arrival: observed: When Frankfurter took his seat on the Frankfurter earned a reputation for Supreme Court in January 1939, it courting every new appointee that was widely assumed that he would be­ came to the Supreme Court. During come the dominant spirit and intellec­ that period when a new Justice was tual leader of the new liberal Court. adjusting to his new position, it was After all, he had been, in the words said that Frankfurter spent an inordi­ of Brandeis, "the most useful lawyer nate amount of time in the new man's in the United States"; defender of office and wrote an inordinate num­ Tom Mooney, of the alien victims of 1 ber of notes and memorandums. ? the Palmer Red Raids, of the striking miners of Bisbee, Arizona, of Sacco Like Black, Douglas and Murphy, in turn, and Vanzetti and too many others to quickly rebuffed Frankfurter's educational ef­ mention; probably the most influen­ forts. Douglas later described Frankfurter as tial advisor to President Roosevelt; "a proselytizer extraordinary [sic]" who, dur­ teacher and sponsor of many of the ing "every waking hour promoted the ideas THE SAGA OF STANLEY REED AND FELIX FRANKFU 173

Justice Frankfurter administered the oath of office to Secretary of the Navy Frank Knox in 1940 (above). That same year, Justice Reed swore in Robert H. Jackson (below) as Attorney General. 174 JOURNAL OF SUPREME COURT HISTORY

Even more than the other adult with his men­ resented well tors, Oliver Wendell and as relected Frankfurter's efforts. Stimson. All others were treated as various Frankfurter had had some serious t'i",Mrpp_ of students! before Murphy With the ,'Om!pIlI of the 1939 Term, and their Frankfurter accelerated the conveyance of led to antipathy, his communications to Murphy's re- Reed. An early one dated October 23 and ad­ that Murphy "hated" Frankfurter. i9 obviously followed Frankfurter had some success, nri,.""r_ up on a ofa case that had been In tie:ve:iOn1 a rela­ argued. The three-Dage dissertation If 1 understand your to retirement at the end of the No. itrelates to r.n,n..-.,,,t.,rU 1940 Term. A former Stone coercive action a state to achieve did not encourage a surrender of a federal right. I have but their relations were amicable. I believe and Stone's solo dissent at the end of the 1939 about this diffi­ you will let me tell why I think that the when lem that confronts us in No. 38 does recommended that Stone be not involve the difficulty you pose. promoted to Chief Justice upon the retirement The added that Reed "would be wor­ Terms Baron Parke who, you will after Frankfurter oc­ up his judgeship as a cupied his suite of offices down the hall from in the common law. This Reed, the junior Justice commenced pepper­ c!\

whom the instinct for work was as committee to study untarnished by any personal sensi­ certain government attor­ tiveness as is yours, but I have never neys, with Reed as chairman and Frankfurter known anyone in whom instinct was as one of the other seven members. The is­ more finely or more alive sues with respect to than in you. Therefore you never who had arouse in me any concern brought many lawyers into government ser­ that whatever conscientious response vice, opposed the inclusion of in the I may make to your will classified civil and Reed

be interpreted by you otherwise than Frankfurter's !-JV'''U'JH, with the result that the as the labors of co-workers in the committee divided 4-4. The end result was that vineyard.23 the report finally submitted to FDR merely pre­ Amazingly, despite this soliloquy, sented the Reed did not incorporate Frankfurter's points The 1940 Term the re­ in his opinion and Frankfurter did not file a election of FDR to his third Term, the an­ concurrence! nouncement of the retirement of Hughes Soon came a more Frankfurter in­ effective July 1, 1941, and the increased in­ structional communication, in which he di­ volvement of Frankfurter in the administra­ rected Reed to the treatise on the Commerce tion's war preparations. While Reed generally Clause he had authored. This was followed by voted with Frankfurter during the Term, Reed a letter did desert him in one case. In the case, Frankfurter wrote When I asked you whether you had an opinion for a five-Justice majority uphold­ read my little book on the Com­ ing the of an Illinois court to issue an merce I meant to imply not the enjoined a commentary on your opinion in union its members of their the Ford case, but on my views re­ Douglas joined a dissent­ garding the raised by rela­ but Reed filed his own tion of the states to the Commerce dissent. It was his first exposition Clause. I meant to indicate as a Justice of his philosophy regarding First that my conviction as to the necessity Amendment and it obviously did not ac­ for relates to the disposi­ cord with that of Frankfurter. Only eight Jus­ tion of variants of a particu­ tices """!-Jan.. u in the decision, because the lar case within a framework of gen­ Court was lC,llll.}\.IHH reduced as a result of eral ideas and not to a denial of the the retirement of the last of the for a philosophy re­ conservative bloc, on 1, 1941. As a state-nation relations under consequence, a number of cases were contin­ 24 the Commerce Clause ued for the Term. indication that through­ Reed enjoyed his con­ Increasing Friction during tacts with and Reed enthusiasti­ the Stone Age cally supported Frankfurter's opinion in the case. In addition to their contacts When the Court convened to commence hear­ work of the throughout the on October 13, 1941, Stone oc­ Term Reed and Frankfurter shared an the center seat, and Robert H. Jackson ment from FDR. executive order dated Jan­ and James F. Byrnes, Jr. occupied the two uary 31, 1 the President had a end With the Court at full 176 JOURNAL OF SUPREME COURT HISTORY strength, those cases in which the Court had Frankfurter continued his effort to obtain the been divided its prior Term were vote that would the outcome of the re-argued. Reed and Frankfurter ended up on 5-4 decision up to the day before the opposite sides of several of those cases. In a ion was handed down. He then wrote "That case involving the proper forum for a Fed­ you should think of Jetting Black's opinion eral Act suit by an in­ in the Contemnt cases-the opinion, not the jured out as your own makes me ion for a six-Justice majOlity and Frankfurter more sorrowful than I dare put into words.") I dissented. As to a group ofactions involving One commentator has opined that, in prevail- federal diversity jurisdiction, Frankfurter mar­ Black, rather than became the shaled a bare to hold that such juris­ leader of the Roosevelt Justices on matters of diction must be narrowly construed, and Reed constitutional lawn the Chief and Jack­ Another of letters followed Reed's son in advocating more liberal result.28 Reed declination to support Frankfurter in his chal­ also wrote a dissent for the lenge of a Douglas opinion. At one and Roberts from two decisions supported by Frankfurter wrote, "I would like to ask you Frankfurter the power of federal to read or reread in cold blood the follow- cases" that the former orofessor deemed to support his dissent. Shortly after the decision parent early in the Stone era even in the came down, still not having up, Frank­ field of federal in which Frank­ furter wrote: furter claimed great Reed was not prepared to follow silently. I know you will not think me moved Frankfurter made his effort dur­ by any motive in pass- the Term to garner Reed's vote inlirtages v. on to you the below California,3o and he became particularly irked from Learned Hand ... "I really think when he was unsuccessful. The case involved that the Pearce decision was unpar­ a constitutional to a state court's in­ donable ... These bozos don't seem vocation of its contempt power to Dunish la­ to me to the very basic bor leader for characteristic of their job, which is he had sent to the to keep some kind of coherence and bor the actions of a in a la­ in the body of rules which bor dispute. When Reed advised that he had must be applied a compli­ agreed to support Black's majority opinion re­ cated ,,33 contempt conviction, rather than Frankfurter's Frankfurter In addition to Hand as his that which is fundamental with me . Frankfurter often cited Holmes or is of no moment to you, namelv. that strik­ Brandeis as authorities supporting his ing down state action it uncon­ tions. One handwritten note dated "Mon­ stitutional entails a day began "As I gaze into a of judgment from that in letting state action fire and a serene mood steals into me, " He wrote in a I reflect on my talk with you late this after­ cation to "Dear Brother noon. ." and then added "The one you sarcastic references to Black's opinion, that must hear-and I shall not burden you further "Perhaps now you wiB reconsider whether the hereafter is that my views are not my queer are or were the convictions of' a and immunities. listing of Justices.34 THE SAGA OF STANLEY REED AND FELIX FRANKFURTER 177

Frankfurter often flaunted his academic only say that ifit was a brick, I should credentials to Reed, as in a letter in Decem­ expect you to heave a similar one into ber 1941 in which he stated: my window when occasion offers. I [T]he fact is that I am an academic deem it an exercise of the duties of friendship.J 8 and I have no excuse for being on this Court unless I remain so. By which Despite their judicial relationship, a cor­ r mean that Harvard paid me a high responding social relationship did not develop salary for the opportunity of under­ between the Reeds and the Frankfurters. The standing the problems covered by the Reeds did entertain the Frankfurters together phrase "judicial review" and genera­ with the Blacks prior to the ap­ tions of the ablest legal brains in the pointment, but thereafter saw each other country deprived me of any excuse socially only on those occasions which in­ for not having availed myself of that volved all or many members of the Court. opportunity. And not even so power­ Winifred Reed enjoyed and ful and agile a mind as that ofCharles ipated in Washington's vibrant social life; Evans Hughes could, under the pres­ Marion Frankfurter did not choose that course. sures which produced adjudication Reed's sons both confirmed that there was little and opinion writing, gain the thor­ intimacy between their father and Frankfurter ough and disinterested grasp of these away from the Court and that a major reason problems which twenty-five years was that Winifred neither liked nor trusted the of academic preoccupation with the former professor.39 35 problems should have left in one. Despite Reed's rebuffs and his time­ The not-so-subtle change in the Frank­ consuming activities for the war effort, Frank­ furter/Reed relationship that apparently sur­ furter did not entirely give up on his campaign faced with thcir dispute about the Bridges de­ to convert Reed during the war years. For ex­ cision undoubtedly was exacerbated by Reed's ample, again citing his academic background, increasing awareness ofcomments being made during the 1942 Term Frankfurter wrote the by his erstwhile friend to others, including following in reaction to Reed's joinder ofa dis­ Recd's law clerks. The situation led Douglas sent by Black to a Frankfurter opinion: "Were I to report that "Reed was so polite and gracious still at Cambridge I would be saddened to note as to be a foil to the agile, provocative Felix that you underwrote an opinion like Black's Frankfurter, who made great fun ofhim behind dissent in the ChenefY case."40 On New Year's his back, though never to his facc."J6 One of Eve 1942, Frankfurter sent a handwritten note Reed's law clerks rcportcd that Frankfurter had to Reed regarding Parker v. Brown,41 a pending described Reed to him as "[a] man who crawls Commerce Clause decision: from detail to detail.,,}7 I cannot rid myself of the conVIC­ In any event, during the Term, Reed's an­ tion that all your difficulties in the noyance apparcntly reached a point at which he Raisin case derives from your convic­ requested Frankfurter to desist from his con­ tion that such state controls of com­ tacts. That resulted in the following note to modities entering into interstate com­ Reed: merce are bad economics and bad I inferred from our talk last night that for the country ... You may be right I was to await your pleasure and not as a statesman-but its none of your bother you with any initiation of talk. danm business as ajudge construing But I do not want to appear not to the Sherman Law and the commerce talk about what you call a brick. I can c1ause.42 178 JOURNAL OF SUPREME COURT HISTORY

Despite a cordial judicial relationship, Frankfurter and Reed did not socialize off the Court. Winifred Reed (left with the Justice), who actively participated in Washington social life, did not like Frankfurter be­ cause she was convinced he had spoken out against Reed being promoted to Chief Justice. Marion Frank­ furter (below with her husband) was a recluse.

Reed had been because of his con- ofthe wide range offederal power over commerce, to join the Chiefs majority opinion upholding a state regulation. in reply to Frankfurter's note, Reed wrote New Year. But not from a statesman. I am a judge and to prove it in your way, I have up with the C.J. on raisins. Rutledge, another former SOl', joined the Court in 1943 to fill the vacancy created by departure to the executive branch. Frankfurter's exercise of his wiles with quickly more productive than they had with Douglas, and Murphy. A Frankfurter entry reads:

I told Reed that it is a good for him to realize all is not for the best in the best of worlds but that not to be in that that was to be expected these evangelical lads who confuses from him, that he is one of these men his personal desire to do good in the who fails to remember what Holmes world with the limits within which a 43 said it was the first duty of a civilized wise and humble must move. man not to that he is Further expounding on the proper function is one of of a judge, Frankfurter sent a long memo E SAGA OF STAN REED AND FRANKFU 179 entitled "Footnote about contain- portance in statutes them the following: not once but thrice. He that Reed do likewise. because it is so easy to make our limited ex­ perience with affairs the yardstick of furter occurred the final weeks of the constitutional power of govern­ the 1942 Term. a bloc consisting of ment, a Justice must have humility. the Douglas, Murphy, and Rut- That humility in not uncon­ vacated the Court's judgment in Jones v. arrogating to one's own no­ Opelika,46 in which Reed, during the prior tions of policy the commands of the had written a decision upholding or­ Constitution. dinances requiring members of the Jehovah's to gain Reed's vote in a case, Witnesses to obtain licenses to solici­ Frankfurter wrote, "It is the lot of professors tations. The bloc then, in a series of cases,47 to be often not understood 1 sup­ held unconstitutional under the First Amend­ pose that is why one of the boring habits into ment other ordinances which is repetitiveness. So let the ringing ofdoorbells to del iver me try again.',45 Another time he told Reed erature. Frankfurter Reed's vigorous that students at Harvard were taught the im­ dissent to these developments.

Frankfurter opposed the bloc of Justices supporting the first Amendment of Jehovah's Witnesses, and Reed supported frankfurter's position in a series of cases on the subject. Jehovah's Witnesses line up at mess tents outside a stadium convention in 1950. 180 JOURNAL OF SUPREME COURT HISTORY

Next, the same bloc plus JaCKSOn, on the minorities which stir kindred to 1943, handed down the decision in West those the ,,52 Stone then with­ //irniNin V. in which Frankfurter's drew the from Frankfurter and re­ 1939 in Gobitis was overruled. While assigned the opinion to Reed, Reed produced, Reed did not join Frankfurter's with from several of his one of dissent,49 he did support Frankfurter's the best-written ofhiS judicial career. tion. Rauh's memoir comments on this sem­ However, Frankfurter declined to support the inal event in Frankfurter's judicial career as opinion-although he concurred in the result. follows: While frequently Reed to sup- his positions, Frankfurter felt no com­ The chasm the salute cases pro­ to subscribe to Reed's opinions, as duced betwecn Frankfurter and the demonstrated by Allwright. In Frankfurter other liberals was far greater than often wrote or joined dissents to Reed's opin­ just the of his opinion. ions, and they were frequently on opposite Black became the leader of the lib­ sides when neither was On the final eral majority on the Court, evoking of tbe 1944 they had another eon­ Frankfurter references to his phalanx. frontation litigation involving Frankfurter even to This time the caseS3 involved the gov­ the motives of the others, ernment's effort to Bridges based on Black and Doug/as: his 1943 diaries, his having been a Communist when he entered find him to the country in 1920. Frankfurter ar­ that the deportation order should be sus­ tor, but Reed opinion re- one," "reck­ the order. less" ... For most of the until Reed and Frankfurter did Frankfurter's last years, the hard feel- eye-Io-eye continued. the administration '::; conduct oflhe war-cases the ,,,hAt,,,,,.,, lanal1ese on as caused Frankfurter to seethe. The case of Smith v. involved the claimed unconstitu­ United Slates. 55 That ease involved the gov­ of political nartv orimarv elections ernment's to cancel the in Texas. The Court of an admitted Communist and arose at a very claim only years time in the nation's warUme relations the decision. with Russia. Reed the revers- the Frankfurter both the dissent and sent a sarcastic letter the Chief the writing of a majority Reed of voting with the maioritv because of but on be- communicated to There were several bitter feuds on the Stone their consensus "that the Court's deci­ the final Terms of Stone'5 Chief bound to arouse bitter resentment, would As I recounted in New Deal be much less to stir ugly reactions if the Justice: news that the white orimarv is dead is broken to it, by a Southerner who has been Having alienated the chief justice, a Democrat and is not a member of one of by the soring of J945 Roberts was THE SAGA OF STANLEY REED AND FELIX FRANKFURTER 181

on cordial relations with few of the that, after leaving their spouses, they had ob­ brethren ... Murphy clearly was un­ tained divorce decrees in Nevada. The is­ on the Court and he particu­ sue was whether the Full Faith and Credit larly "hated" Felix Frankfurter ... As Clause North Carolina to recogruze for Frankfurter, he "had little regard the Nevada decrees. After much cogitation, for any of the members of the Axis, Reed concluded that Frankfurter had the bet­ or they for him." Douglas told a bi­ terofthe debate in holding that North Carolina ographer that "his break with Frank­ could refuse to the decrees based on furter dated from the Court's reversal findings that the defendants had never actu­ of Gobitis" and "nastiness" charac­ ally been domiciled in Nevada. The case is terized their relationship during the one of the few in which Frankfurter's efforts 1944 Term ... The most notorious with Reed bore fruit, and the switch entailed antagonists among the brethren prior an avalanche of correspondence between the to May 7, 1945, were Frankfurter chambers. Over the course of ten each and Black ... Amazingly, the person­ ofthe Justices wrote four letters arguing about ality conflict at the Court that ex­ ofthe opinion. Frankfurter de­ ploded into public view during the clined to add certain language and citations 1944 Term was none ofthe Reed, explaining: but rather a bitter confrontation be­ I am sorry I cannot do what you tween Justices Black and Jackson.57 wish .... I really do not mean to re­ sist any by my Brethren This charged atmosphere may well account for and especially by you. And I certainly the decrease during the period in confronta­ do not think this opinion is literarily tions between Reed and Frankfurter, as well inspired. as for Roberts' decision, though he was still But, I have really weighed on healthy, to resign on July 31,1945. the most delicate apothecary's scales The decision at the core of the Jackson! what I have said and what I have left Black dispute during the 1944 Tenn was Jewell unsaid and I know how sensitive all Ridge Corp v. Local 1167,58 a case involving of this is and what risks one runs by whether the Fair Labor Standards Act required greater explicitness than I have been payment to miners of portal-to-portal pay. As able to muster. 60 a result of a change of vote by Reed follow­ ing the conference, the miners, represented by Reed accepted this response and was with the Black's former law partner, were victorious. slim majority when the decision finally was Jackson, with Frankfurter's support, wrote a announced. biting dissent, but his outrage at what he con­ Harold H. Burton took the judicial oath sidered a devious and politically motivated to replace Roberts on October 1, 1945. Jack­ decision merely simmered during the 1945 son was absent throughout the 1945 Term. Term while he was prosecuting war crimes in Thus, there were only eight Justices sitting Nuremburg. on April 22, 1946 when Chief Justice Stone Change of a vote after conference was became ill while presiding at a Court session an unusual occurrence for Reed, but he did it and died later in the day. The unexpected va­ again at the close of the 1944 Term to sup­ cancy in the center seat became not only the port a majority opinion by Frankfurter. The occasion for the most flagrant public display notorious "migratory divorce" decision59 in­ of disharmony on the Court, but also, be­ volved convictions by North Carolina of a hind the scenes, the cause of a serious cool­ man and woman for bigamy, despite the fact ing of relations between Reed and Frankfurter. 182 JOURNAL OF SUPREME COURT HISTORY

William O. Douglas

The sweetening of the that had ;"')uurl:'!n Relations during the Vinson Era occurred with the Williams decision and a of correspondence dur­ Jackson was not the Justice aspiring to the 1945 sUlTuner recess was soured the center seat: Reed was also very interested events surrounding the aooointment of Stone's in the possibility, and Winifred be­ successor. lieved he should be Douglas states From the day of Stone's death until June 6, in his autobiography that "but for Frankfurter's when President S. Truman named machinations," Reed have been Chief Fred Vinson to be Stone's successor, the rumor Justice" and would have made a Chief. mills were rife with soeculation regarding the Winifred was convinced Frankfurter "pulled still in Europe, had long wires to keep Stanley from being named Chief to the center seat and was Justice."62 Her conviction cemented her an- disappointed that he was not selected. toward the former and was In his frustration, he released a statement re­ reflected in her husband's apparent determi­ sponding to that had appeared in the nation thereafter to deal at arm's length with press regarding him and excoriating Black's Frankfurter. The likelihood that the belief action in case. Even as Vinson was being confirmed, there were many calls the President for the or impeachments of both from considering Reed for the vacancy was ac­ Black and Jackson.61 curate is evidence of statements THE SAGA OF STANLEY AND FELIX FRANKFURTER 183 made by Frankfurter Reed. For ex­ And I, being young, said "Mr. Jus- ample, he characterized Reed as "largely (a] how can you Jet that man talk vegetable" in one of his letters to his to you that way." And Justice Reed, correspondent Learned Hand. He also looking a bit said "Well that Reed was minded."63 An en- you know, you have to understand that in Frankfurter's in 1946 also Frankfurter is a indicates his disdain for Winifred Reed. man and a little tP"r''''e'rrr,pnb with the other having received an in­ It is not clear what issue had caused the vitation to one of her social functions, the for­ confrontation overheard the clerk. It proba­ mer professor recorded: bly concerned the Court's decision in Ballard Went to a tea at the Reeds v. United States,66 the first case argued dur­ for Maxwell the autllOr the Term. Reed chose to join a majority opinion by that reversed lower court decisions and ordered dismissal of a federal­ court criminal indictment in which women had been systematically excluded from the bers and other people whom she could that returned the indictment. Frankfurter, with not possibly have known, but whom the support of the new Chief as weU as of she asked because that is the kind of Jackson and vehemently contended person she is, and they came because that the claim sustained by the majority was come if asked by a Justice of not properly before the Court. It was normal Court.64 for the former to become as aroused When the 1946 Term about issues of as he became for the first had a law clerk from Yale ing constitutional issues. Law School-a candidate not recommended Frankfurter's during the 1946 Term by Frankfurter, as seven ofthe candidate's pre­ records several conversations regarding the decessors had been. The significant difference new Chief, including this entry: that made with respect to Frankfurter's influ­ Reed me by his free talk by the recollection of that about Vinson. I say surprised me, be­ "1 never saw him ruffled cause Reed is usually on the band­ except once," when the clerk overheard wagon of he is usually for Frankfurter in Reed's office: the new It wasn't a conversation as on top. he knows Vinson of much as a lecture on the part ofFrank­ old and when Vinson's appointment furter to Justice Reed. And Frank­ was made he was very frank in his furter literally dressed Justice Reed ofVinson's down for something he had said or for the job. When I asked him what written or done on a of law. It Vinson was like, he replied "He wasn't a personal matter. He was, in like me, that he is less well­ to the Justice he didn't educated and has not had as many know what he was about and " I then "Well didn't understand this and he was didn't the President appoint treating Justice Reed almost like a which he replied "That's what I asked student of Frankfurter's. And J came in afterwards and Justice Reed was If Frankfurter's purpose in flushed and very upset. conversations was to drive a 184 JOURNAL OF SU E COURT HISTORY between the new Chief and it was defendant could not be compelled to be a wit­ not successful. Before 1946 ended, the Chief ness himself, it was for and Reed had a frank discussion about what a prosecutor to comment to the jury on the the Chief had perceived as Reed's failure of the defendant to testify. nism. Vinson inquired whether Reed "was who chose not to testify in order not to reveal opposing him in some cases because of the his prior criminal record, contended that the fact he had been appointed Chief Justice California procedure violated the Fourteenth instead of [Reed.]" Reed Amendment, since it the no­ of course, I'd hoped I self-incrimination clause of the Fifth Amend­ Chief Justice. Or it another way, I ment. Reed's five-Justice the would have been very if I had California and this time Black ex- but thereafter Reed confessed that "if I were on his of the Fourteenth not going to be I would rather Amendment. Even before circulation of ei­ have seen you appointed than anyone else."68 ther Reed's majority opinion or Black's An amicable and Frankfurter delivered to Reed a com­ ensued. munication advising how the Statistics for the 1946 and 1947 Terms should be written. He commented: confirm that, in Reed with Vin­ son and also with Burton more often than with There are statesmen, whom Neville Frankfurter. Even when Reed and Frankfurter Chamberlain best illustrates, who agreed as to seem to think that the way to concil­ reasoning. Reed's two most iate enemies is to lose friends. That ions during those Terms were odd notion has not been WhOlly unre­ situation. In Francis v. Resweber,o') Reed was flected even in the work ofthis Court. assigned to deal with the controversial con­ No matter what you wrote in stitutional from Louisiana's ing the claim that there was a de­ decision to a felon to a second visit nial of due process in the Adamson to its electric chair after it malfunctioned dur­ case, because of of im­ ing the first execution. When Reed munity from you circulated his draft could not win the support of Black & Douglas, and Jackson had voted Co. It is that you with Reed to affirm} and Burton his draft dis­ should wlite so as to be able to speak sent, Douglas switched his vote. Frankfurter for the Court. . . there is an opin­ sent Reed a ofthe which ion which has been accredited by time he labelled "a lulu."70 With only five votes and bv the recognition of the ablest remaining in the the Chief pleaded members of the it is the Twin­ with Frankfurter not to file a separate opin­ ing What is called for now is ion, but he insisted on so, with the re­ a firm and oithv reaffirmation ofthat sult that there was no opinion in the decision.72 case. Frankfurter chose this occasion to de­ liver a lecture on the Fourteenth Amendment to the ofthat PUUllUCU in the dissent, amendment that Black had been advocating. and while the Reed The debate on the incorporation theory the former could not resist adding a reached a with the decision in Adamson concurrence that asserted that Twining73 was v. I on the final day of the J946 "one of the in the history Term. Under California law, while a criminal of the Court" and refuted incorporation. 184 JOURNAL SUPREME COURT HISTORY

between the new Chief and it was defendant could not be ,,",UllljJCllCU not successful. Before 1946 the Chief ness against it was for and Reed had a frank discussion about what a prosecutor to comment to the jury on the the Chief had perceived as Reed's antago­ failure of the defendant to testify. Adamson, nism. Vinson inquired whether Reed "was who chose not to in order not to reveal him in some cases because of the his prior criminal contended that the fact he had been appointed Chief Justice California U\XUUIC violated the Fourteenth instead of [Reed.]" Reed Amendment, since it the no­ of course, I'd hoped I might be <1jJjJUIHlCU self-incrimination clause of the Fifth Amend­ Chief Justice. Or putting it another way, I ment Reed's five-Justice upheld the would have been very if I had California and this time Black ex- but thereafter Reed confessed that "if I were of the Fourteenth not to be appointee\, I would rather before circulation of ei­ have seen you appointed than anyone else,"68 ther Reed's or Black's dissent, An amicable and Frankfurter delivered to Reed a lengthy com­ ensued. munication how the majority opinion Statistics for the 1946 and 1947 Terms should be written. He commented: confirm that, in fact, Reed with Vin­ son and also with Burton more often than with There are statesmen, whom Neville Frankfurter. Even when Reed and Frankfurter Chamberlain best illustrates, who seem to think that the way to concil­ iate enemies is to lose friends. That odd notion has not been wholly unre­ situation, In Francis v. Kesweber flected even in the work ofthis Court. to deal with the controversial con­ No matter what you wrote in stitutional questions from Louisiana's the claim that there was a de­ decision to subject a felon to a second visit nial of due process in the Adamson to its electric chair after it malfunctioned dur­ case, because of disregard of im­ the first attempted execution. When Reed munity from self-incrimination, you circulated his draft (Vinson, Black, could not win the support of Black & Douglas, Frankfurter, and Jackson had voted Co. It is however, that you with Reed to affirm) and Burton his draft dis­ should write so as to be able to speak sent, Douglas switched his vote. Frankfurter for the Court, ,[I]f there is an opin­ sent Reed a ofthe dissent, which ion which has been accredited by time he labelled "a lulu. With five votes and by the of the ablest remaining in the the Chief pleaded members of the Court, it is the Twin- with Frankfurter not to file a opin­ What is cal led for now is ion, but he insisted on so, with the re­ a firm and pithy reaffirmation of that sult that there was no opinion in the decision.72 case, Frankfurter chose this occasion to de­ liver a lecture on the Fourteenth Amendment While Reed met the incorporation ar­ to challenge the "incorporation theory" of that that Black expounded in the amendment thal Black had been advocating. and while Frankfurter joined the Reed The debate on the incorporation theory with the decision in Adamson concurrence that asserted that v. Lau/orma" on the final day of the 1946 "one of the outstanding opinions in the Term. Under California law. while a criminal of the Court" and refuted E STANLEY REED AND fELIX fRAN 185

Reed's 1948 solo dissent in McCollum v. and that insight into it, which so often Board was probably the most

alUllV,,"<:;U of his judi­ of a child in the "'''''Il'H5'll, Illinois school relying on opmIOn the Establishment of Clause of the

m.'nti'TlI·'l1t obtained an order, which the Frankfurter considered his into the is- the Board of Ed­ ucation to terminate the of allowing leaders of various faiths to con­ instructions in school buildings once each week. Reed was alone in his on the "released-time" program, One event 949 created a common Frankfurter taunted him for not dilemma for Frankfurter and Reed: their par- in the trial of Hiss as charac- Hiss had been a favorite student Harvard and in 1935 had tian activities at his school with a "V,;,",U'U", note Reed a in the Solic- When Hiss was first in­ Please read this and then re-read it both and try to understand what it is them to tes­ to say. Unless you do understand the federal court trial in New York. the thought expressed in this let­ to ter, believe me you cannot understand Reed insisted that he would the real issues that underlie "released At the conclusion of the trial, includ­ time" problemsJ5 very brief by Frankfurter and the jury deadlocked and a mis­ On a subsequent occasion, Frankfurter ex­ trial was declared. Neither Justice was called to plained his inclination to critique Reed's writ- at the which resulted in a convic­ in such circumstances. "One aspect of the tion. The Hiss episode brought substantial crit­ of the habits formed in my Cam­ icism of the which particularly ran­ years is that to some of my brethren I kled who blamed Frankfurter for the feel free to make suggestions even as to opin­ ions in which I do not join."76 of Frankfurter's efforts to "educate" Frankfurter did not restrain himself from the final Terms of the J940s in­ nro,ce(]Urles in criminal cases, an area cases. In a disagreed and which with respect to of was much greater attention by the a of the Fair Labor Standards Court. When a including Frankfurter Frankfurter chided: ordered of a confession found to I should think that the fellow who by a jury on the was able to get away from that the confessor had not been presented Hughes & Co. in Erie Railroad v. "without unnecessary delay" before a Tompkins ought to be able to get away trate, Reed wrote a dissent decrying the ex­ even from a conclusion of his own, tension of the "McNabb rule" as unwarranted formed before he came to that fu II and inadvisable.79 In four other decisions an­ grip with the difficulties of a nounced on the final day of the 1948 186 JOURNAL OF SUPREME COURT HISTORY

Their participation as character witnesses in the trial of Alger Hiss (pictured leaving a courtroom with his wife in 1950) created a common dilemma for Reed and Frankfurter. Hiss had been a favorite student of Frankfurter's at Harvard; Reed had hired him in 1935 for a position at the Office of the Solicitor General.

Frankfurter joined the bloc Douglas, with a dissertation in which Murphy, and Rutledge to reverse criminal con­ he cited an opinion by Learned Hand for "the victions in federal and state courts based on proper guiding considerations which I tried to determinations that a search had been illegal indicate, referred to the "humorless audac­ or a confession with Reed protest­ of the position with the majority's of the findings of to the and concluded that the lower courts80 "The application of the Fourth Amendment is Even prior to this of cases, Frank­ not a game."81 furter and Reed had engaged in a number of One of Reed's clerks related that Reed had debates on the subject ofsearches and seizures. once "Do you know why FeJix and J On one occasion, Frankfurter sent a letter decide these search and seizure cases differ­ that "A fair reading of our and explained: warrants, I the do not start with the When Felix was a young lewish boy to consider a limitation upon it" and up in Vienna and there would that Reed "consider the ofcertain be a knock on the door in the night it Reed in a could be a And if it was his analysis of those a could be same day. Frankfurter coming to take him away. When I THE SAGA OF STANLEY REED AND FELIX FRANKFURTER 187

was young J grew up in concurred in the opinion. But it was Kentucky, where my father was one like the proverbial pulling of teeth.84 of the citizens of the town. And I had a white pony and J used One of Reed's clerks the Term to fide the white pony down the main street. And I had curls then He used to drive Felix Frankfurter and as I the main intersection up the wa II ... Because Fel ix would there was a there and he come all hotted up and in to would hold up his hand to stop traffic talk with Reed and him by he would and to persuade him ofsomething pat me on my curls. When Fe­ or other. Felix would have seventeen lix thinks of he thinks of arguments and be like a ma­ the knock on the door in the night, chine gun and brandishing his and when I think it is of one stopping intellectual and his citations and traffic and patting my curlS.82 his rhetoric and While Reed ever walked down the grams. And it was like talking to a hall to Frankfurter's chambers and had no con­ Buddha. And I've watched this tacts with Frankfurter's clerks, the former pro­ pen so often and Felix was small, fessor continued to visit the Reed chambers around like a hornet or like a fairly often the detente of the Vinson whirling around the Buddha-like 85 era. Visits occurred even when Reed was not present, particularly during those less During the 1949 summer recess, both Terms when one of Reed's clerks was from Murphy and died Tru­ Harvard 83 Reed alerted his new clerks to the man wasted little time in appointing Tom likelihood of a Frankfurter visit to them early Clark and Sherman Minton to the vacancies. in the Term. As late as the 1953 whcn I These appointments, creating a new bloc ofthe shortly after 1 arrived at the Court and four Truman appointees Reed and often while Reed was still on vacation, Frankfurter altered the strolled into my office and introduced himself, of the Court as it to with a an action that was unnecessary. variety of Cold War cases. In virh13lly all of Frankfurter's visits to the Reed chambers those cases, Reed was with the group sup­ were never social visits-he had a mis­ porting powers. Reed and Frank­ sion. of the discussions be­ furter invariably disagreed in these cases, but came quite loud, because Frankfurter tended their most rpf"rnPlnt was in to his propositions by his the second Dennis case,86 an from the decibel level. A note from Frankfurter to Vin­ conviction of eleven leaders of the Commu­ son dated Apri I 1949, shows his typical nist for violation of the conspiracy pro­ vision ofthe Smith Act. From the outset, Reed I don't know how many times I have voted with Vinson, Burton, and Minton to af­ told to his face that while firm (Clark was disqualified, since he had been there is about him an aura of sweet Attorney General when the ~r""'p"," he is one of the most and he sent a note to the obstinate ofmen .... York v. Guaran­ a way of dealing with the defendants' lee Trust Company is a illustra­ contention that the trial had improperly tion. I talked with him about that case limited the issues submitted to the jury. New almost hours on end before he finally Deal Justice detailed what ensued: 188 JOURNAL OF SUPREME COURT HISTORY

When Justice Frankfurter was shown Reed in 1951 a copy of this note, he wrote an claims with respect to analysis of the suggestion which he Frankfurter returned a four- thus an ex- page memorandum extensive criti­ the case cisms that he credited to adviser, my law clerk." Reed made some of the between and circulated a redraft. He then re­ during their joint ceived a handwritten Frankfurter note. tenure on the Court. Between Febru­ "lfI can 1 wallt to you. But the difficulties ary 1 and March I eleven letters I've which to you may seem professo­ traveled between their offices debat­ rial or worse, are important to me." sometimes the inter- notes were scribbled on almost every page of of subversive activities the and Frankfurter included an addi­ and the First Amendment. Reed ad­ tional memo from his law clerk to "show you dressed his third response to the for­ the kind of law clerks the Harvard Law School mer attempted dissection sends me."S9 Reed's two law clerks at the time of his rationale of the case to "Dear were from Columbia and Yale. Plato" and Frankfurter with a the of further to obtain further critique, which closed "Pla­ Frankfurter's support of his opinion, Reed ter­ tonically yours. Finally on March minated the debate, and Frankfurter again filed I , Reed wrote a letter to the former a concurrence. professor "to complete the correspon­ Reed's files for this include a num­ dence." Frankfurter did not accept ber of short handwritten notes from Frank­ Reed's effort to conclude their debate. furter that do not their On March 1 he For one such note dated concluded ''I'm glad Cardozo is not here for new light on the 'nature of the judicial pro­ " and arguing that Reed's cess.'" A "Monday" note follow­ support for affirmation of the Dennis ing notice that Reed would support a result derived "from the fact that you opinion rather than a Frankfurter dissent with an answer instead of a "How often your week-end thoughts do not im­ " This verbal fi­ prove on your earlier wisdom. nally ended with a letter from Frank­ that no purpose would The emergence of what was often dubbed "in bits and "the Truman bloc': on the Court enabled Reed to in a number of religious freedom cases during the 19505, his sit­ in the case. uation from when Opelika was vacated and he was the sole dissenter in McCollum. Thus, Frankfurter did write his own opinion, which­ in J951, Reed wrote for the majority, which amazingly, in view of this background­ upheld the constitutionality of the so-called was a concurrence. Jackson also con- Green River declaring it a mis­ thus the final vote 6-2 for demeanor for any solicitor without invita­ affirmance. tion to enter to solicit orders for Frankfurter demonstrated that, even merchandise. 91 Reed relied on the commercial with Reed on a result, he aspect of solicitations by Jehovah's to both his and the 1943 "rp'{'f'>tlpnt~ his clerk's intellectual superiority. In response of Reed's first draft, THE SAGA STANLEY AND FRANKFURTER 189

Frankfhrter made a number of comments, in­ During the 1952 Term, Reed wrote pre­ cluding the foHowing: vailing opinions in four significant cases, and Frankfurter declined to join any of them. In On some page you say to Brown v. 96 which had been debated at the effect that all but a few people during the prior Term and studied by want to the family. Now re­ both Reed and Frankfurter during the summer ally! We not to lend recess, the Court proposed to clarify the role of ourselves to be made fun of The federal courts in the writ of habeas pages of the New Yorker do not need corpus to review state-court criminal proceed- to be by us .. Even to the Reed cir­ On page 19 in the first open para­ culated a memorandum his analy­ graph you say: "This Court has been sis, and several communications between the careful to assure every idea, etc. a fair Reed and Frankfurter chambers ensued. On the through speech and press." ofthe re-argument, Frankfurter distributed That's a pretty boast! We couldn't ofa lengthy study he had had completed possibly do that if we tried. by one ofhis clerks. At the a major­ ity supported Reed. The following Frank­ Reed by makjng changes in his re- furter distributed a

which led to a note from Frankfurter stat- to "Dear Brethren," {'C\''nrrIPnl'l all I will have to answer for All must come to an end and I I guess r can should not like to be unmindful ofthe you." fact that over milk is for Reed's greatest First Amendment triumph children, not for grown men. Still less of the period came in a case in which he did do I like to appear disloyal to those not write the majority opinion. In 1948, Reed wise men who taught me that when had been the sole dissenter in the decision a case is over it is over. But since a that outlawed an Illinois released-time pro­ case in this Court is not over until it gram. Sectarian groups, led by the Catholic is I am venturing to put on church, vigorously attacked the McCollum de­ paper what rdid not get around to say­ cision. During the 1951 the case of ing in discussion regard- Zorach v. presented a similar issue habeas corpus.97 with respect to a New York program, which differed from the one earlier condemned in For three additional months, memoranda and that the instruction occurred away redrafts were until Reed's from the educational facilities. With Clark and ion for the Court was finally released on Minton Murphy and and and BUiton with reconsideration of their on re­ also filed opinions, and Black and leased time by Vinson, Burton and Douglas-­ Douglas filed dissents. The former professor filed a statement that, he announced was "not a enthusiastic about Frankfurter opinion. To two ofReed 's and Jackson were left to join Black's dissent, nificant opinions, Frankfurter wrote a clearly which stated he saw "no difference denominated dissent98 and concurrence99 between the Illinois system and that of New The most confrontation be­ York here sustained."94 Reed's victory, which tween Reed and Frankfurter on these four Reed brought scorn from Frankfurter, resulted in opinions occurred with respect to Poulos v. many publication by a Je­ New 100 another Jehovah's Witness suit scholar of a volume entitled Justice Reed case. been denied a license to con­ and the First Amendment.95 duct religious services in a public park, Poulos 190 JOURNAL OF SUPREME COURT HISTORY proceeded to hold the services anyway and was ended when Dwight Eisenhower was elected in convicted of violating the ordinance. 1952. Accordingly, Ike's appointment of Earl The state court upheld the conviction, while the of much even though the license had been among the did not cause any fur­ denied: it was held that Poulos's proper course ther friction between Reed and Frankfurter. had been to seek review of the rather However, the entire Court's preoccupation with than to without a license. Reed's draft ilie ofilie opinion, which received the votes of the four cases and Frankfurter's focus on his "educa­ Truman and concluded tion" of Warren did somewhat limit the former that the ordinance as construed by the state of Reed during the court did not on the free exercise of 1953 Term. religion. By a series of memoranda to all of Frankfurter "courted Warren as he courted the Frankfurter first stated that he all new members of the Court," in "a regarded most of Reed's opinion to be "wholly short honeymoon ,,103 The most COITI­ gratuitous, since the issue of the biography of Warren provides de­ for a license had not been raised in the state tails of the Frankfurter campaign: courts. When Reed pointed out 111 Frankfurter, in particular, made the state-court opinion dealing with the valid- a massive effort to cultivate the new Chief Justice. He bombarded without changing his Warren with notes, position. Annoyed by the entire Reed articles, and even texts intended to distributed a brief memorandum to the confer­ inculcate the Frankfurter view. On ence stating, "If anyone makes two mistakes October 8, 1 for only in my draft opinion, may three days after Warren was sworn he has made a third. Finally, in Frankfurter sent him an article on the response to two further memos from Frank- work of a Chief Justice. Reed on the last one, "one A few days later, Frankfurter, more circulation from you and I am bound to that "a remark of yours the other win." Reed adhered to his draft and retained afternoon encourages me to send you his five votes, and Frankfurter filed another some more " sent Warren concurrence. 101 his 1927 The Business the 1952 Term, the necessity ."''''lfFI/IV Coul'l, as weJI as his later of resolving the pending school articles the conduct of the overshadowed all Court prorpf>rl Court's business. 104 Reed was studying and the and Frankf1ll1er was During the Term, Frankfurter cases to be scheduled for rather dined to support either of Reed's only than decisions. There is no Frankfurter dissented discussions between the two the 111 V. 105 Term regardinQ the cases. the constitutionality of the taxation a state of the property of an interstate air carrier, and he filed a opinion in the Radio Final Terms with Warren case involving Reed no longer had any aspiration to the center tion of a provision of the Taft-Hartley Act seat when Vinson suddenly died on about which there had been ber 8, 1953, and Frankfurter's days of even a among the circuit courts. 111 nei­ modicum of influence at the White House had ther case did Frankfurter engage in extended THE SAGA OF STANLEY REED AND FELIX FRANKFURTER 191

Frankfurter (second from left) had no influence over President Dwight D. Eisenhower (center), so the appoint­ ment of Earl Warren as Chief Justice in 1953 caused no further friction between Frankfurter and Reed (right). Frankfurter courted Warren as he did all new Justices, taking some of the heat off of Reed. written or oral debate with Reed. he 6 p.m. and was hurriedly to make his points in both cases through his notes in his docket book the Reed law clerk who, he and for and me surmised, had drafts of the opinions the developments during the session. for Reed. When the clerk, convinced that there Casually dressed in a bright orange­ was some merit in one ofthe professor's objec­ colored sweater, Justice Frankfurter in the latter lengthy walked into the room wishing to de­ to Reed that the bate further the outcome of a proce­ be modified, the Justice dural case in which Frankfurter had that he had six votes and no would be been on tile losing side. As soon as made "to humor Felix."lo7 the former While Frankfurter's visits to Reed's cham­ Reed bers were less he did make a few dur­ my advice on the vote and he had to the 1953 Term. The author had the exhila­ leave, since he and Mrs. Reed were an active due at a reception. Helen stood in in one of those Frankfurter missions. The in­ one doorway of the Justice's cham­ cident is recorded in a memoir as follows: bers and in the other hav­ Justice Reed had returned from the trouble containing their mirth be­ conference one near to cause the louder Frankfurter got, the 192 JOURNAL OF SUPREME COURT HISTORY

louder I responded. The "discussion" As a citizen of the Republic, even went on for some time before Justice more than as a colleague, I feel Frankfurter apparently concluded I gratitude for your share in what I was 108 believe to be a great good for our nation,I09 An article entitled "Mr. Justice Reed and in the 1986 The Reed replied: Court Historical So- Your note in to the Segregation detailed Reed's labors the 1953 cases was by me. While Term the school cases. there were many considerations that Aside from Reed's receiving from Frankfurter pointed to a dissent did not add and the long memorandum written up to a balance against the Court's by Alex a Frankfurter with re- to the intent of the drafters and rati· Reed's final two and a half Terms fiers of the Fourteenth Amendment, there was before his retirement on 1957, no overt interaction between Reed and Frank­ the Reed/Frankfurter relationship mellowed, furter the cases. Their only written and there were few confrontations. communications occurred subsequent to the the reasons were: Frankfurter's continued ef­ announcement by Warren of the decisions on forts at proselytizing, but with decreasing suc­ 17, 1954. Frankfurter's note of Mav cess, of Warren; the appointment of John read: Marshall Harlan, a more candidate does not record dangers for Frankfurter's philosophy, to re­ averted. I have no doubt that if the place Jackson, who died on October 9, I cases had reached de­ the abolition as of the end of the 1954 Term cision last Term there would have of the events been four Reed. Frankfurter campaigns; Jackson and Clark--and that Reed was seri­ several opinions for the majonty retirement upon reach­ view. That would have been catas- and thus had limited fur­ And if we had not had una­ ther tenure on now there would feeling have been more than one Cases note-the continued rebuff for the That would have of Frankfurter's lobbying efforts, One of been disastrous. Reed's clerks during his final Terms reported It to you much satis­ that Reed still "found Frankfurter faction to be able to say, as you have ,,110 To another, Reed com­ every right to say, "1 have done the mented that Frankfurter truly believed that any State some service." I am inclined to Justice who did not agree with him was either think, indeed I believe, in no stupid or dishonest. J II act since you have been on this Court A final for Frankfurter's less have you done the Republic a more persistent lobbying ofReed during these Terms service. I am not unaware of was even though were the hard this involved in the on oDDosite sides in contentious cases, Reed conscience of your mind and in the more often on the losing mind of your conscience. I am not with Frankfurter on the prevailing side. unaware, because all I have to do is Such was the situation during the 1954 Term look within. in a series of cases resistance THE SAGA Of STANLEY REED AND fELIX fRANKfU 193

When Frankfurter convinced Justices Warren, Clark, and Minton to switch sides in Toth v. Quarles, Reed's lengthy majority opinion was revised to be a dissent. Frankfurter gloated over his victory and returned the circulated dissent with pointed comments. Air Force Policeman Robert Toth (pictured hugging his mother and sister on his return from Korea) was freed when the Supreme Court held in 1955 that ex-servicemen may not be tried by court-martial for alleged service crimes.

members of the Jehovah's Witnesses to the to be done, as it were, incorpo­ military draft,112 a series of cases involv­ the past reference."116 Frankfurter's of witnesses before the House communication, which bore Un-American Activities Committee, [13 a submitted" as its closing, did not cause Reed death-sentence case in which the issue of dis­ to revise his opinion. crimination in the selection of Events the 1955 Term largely the trial was not raised until the appeal, 114 followed the same for and a case under Reed. In a case involving tbe Federal Tort the Federal Employee Loyalty Program. I IS Claims Act, 117 Frankfurter, with the support of Frankfurter could not resist a memo the wrote a virtually Reed's rationale for upholding the a 1952 Term Reed opinion from Loyalty Board in the latter case. He found which Frankfurter had dissented. In Toth v. the rationale "truly funny" and commented "[ J 18 the issue of whether a should think anybody who knows as much as civilian ex-serviceman could constitutionally you do about how regulations are signed by be subjected to trial a military court-martial, a President would be less confident than you what was believed to be a are that because there is a reference in some­ opinion written by Reed had to be converted thing a President in I that carries into a dissent when Frankfurter convinced with it the legal implication that he authorized the Chief, Clark, and Harlan to switch sides. 194 JOURNAL OF SUPREME COURT HISTORY

When Reed's lengthy revised to be a active, until not prior to his death on dissent, was Frankfurter promptly 1965. Reed and Frankfurter sel­ returned his copy to Reed many hand­ dom conversed and were not in com­ written comments munication with each other between Reed's re­ victory. The Term ended tirement and Frankfurter's death. The once pro­ Clark and Minton protesting an opinion, I 19 lific communications No longer did vigorously supported Frankfurter, which the former hustle down the hall ofthe the Federal marble lobbying. Minton retired for health reasons at the The question in the final analysis, does outset of the 1956 Term, and Reed chose to the ReedlFrankfurter have any rea I 25, 1957 as his date to com­ It appears to have had very lit­ mence retirement status. Along with the other tle effect on the outcome of decisions dur­ seven William J. its duration of years. who was named Ike to Minton-­ of which of the had the better Frankfurter letter to Reed of the substantive arguments during the many that concluded "We shall miss our official debates-a I do not address-it is also association with you, but our and to demonstrate any our best wishes for your happiness will al­ icant impact on the of the law. ways remain unchanged." Reed's response re­ Reed and his clerks provided a ready ferred to "the close personal be­ and, welcoming outlet for tween the members of the Court" and stated boundless energy and that he "would look forward to the continu­ ance of the close that have been nurtured. annoyance, it ap­ pears that both Justices were satisfaction and even some An Affair to Remember? their those Upon his new it seems that the real chambers in the front of the outside relationship is that it illuminated the brass gates that protect the area contain­ two very different but very interesting person­ ing chambers of active Justices. On occasion, alities and shed considerable additional light until the Reeds their m on the of the Court the Mayt10wer where they had resided a tumultuous and most important period. since first to to a retirement home on ENDNOTES the Justice received visits from a few of his former Brethren or attended sessions of the I See Fassett, New Deal Justice: The Life ofStanley Reed of Kentucky (1994) (hereafter NDJ). Court. In 1965, Reed traveled with a group of 2See Baker, Felix frankfurter (1969); Parrish, Felix Justices to Indiana for Minton's funeral. In re­ Frankfurter and His Times (1982); Thomas. Felix tirement, Reed outlived all other Justices: he Frankfurter: Scholar on the Bench (1960); Urofsky, died at ninety-five years of age on 2, Felix Frankfurter: Judicial Restraint and Individual 1980. Liberties (1991). 3Bayless Manning, Stanley Forman Reed Hislory Frankfurter remained on the Court for Collection, University of Kentucky, Lexington. KY (here­ five Terms beyond Reed's retirement, stepping after OHC). down on 1962 after his 4Hirsch, The Enigma of Felix Frankfurter 4-5 ( 1981) second stroke. He was an invalid, but still men- 5:'1lDJ 54. THE SAGA OF STANLEY REED AND FELIX FRANKFURTER 195

42~D.' 348. Court Terms commence on the first Monday 10 43Lash 205. October each year. 44NDJ 351. 8John Sapienza, OHC 45ND.J 359. 9David Schwanz, OHC 16 U,S. 584 (1942) ,OBcnnett Boskey, OHC 47Mlmlock v. Pennsylvania, 319 U.S. 105 (1943), Mar/in 204. v. Struthers, 19 U.S. 441 (1943). From tbe Diaries of Felix Frankfurter 67 (1975) 48319 US. (1943). I3Hirsch [40. 4YSee Dillard in Garra!y, Quarrels That Have Shaped the 14Hirsch 138. Constitution 303 (1987). 15Rauh, A Personalized History of the Supreme Court 50RaLlh 19-20. from Roosevelt to Bush (unpublished manuscript, 1990) Harlan Fiske Stone: Pillar of the Law 61 !6Hirsch 141. (J 956). iJBaker I. 53Bridges v. Wixon, 326 U.S. (1945).

°U(JU"Jas, The Court Years, 1939-197522 (1980) 54ND.J 327 et 19Fine, Frank Murphy: The Washington Years 257 55320 U.S 118 (1943) ( 1984). 5()H irsch 170 20Minersvilie School Dis/riel v. Gobilis, IOUS. 586 57NDJ 378-380. ( 1940). 5~325 U.S. 161 (1945) 21 The Brandeis/Frankfurter Connection 191 59 Williams v. Norlh Carolina, 325 US 226 (1945). ( 1982). 60NDJ 22NO,] 275-276. The in question was Neir/)o Co. v. 61NDJ 4LO. Bethlehem Corp., 308 165 (1939). 62Douglas 458. 2JHirsch J43. The case was Ford Ivl%r Co. v Beauchamp, 257,262. 308 U.S. JJ 1(1939) 6~Lash 295. 143-144. 6SAley Allan, OHC of the PreSIdent's Committee on Civil Service 6(,329 US. (1946). Improvement. House Document No. 118, n Jh Congress 67Lash I. (GPO 1941 68NDJ 418. 26Dril'ers Union v. Meadowmoor Daity, 12 U.S. u.s. 459 (1947). (1941). 70NDJ 721, n. See Wiecek, "Felix Frankfurter, Incor­ 27Baltimore & Ohio Railroad Kepner, U.S. 44 poration, and the Willie Francis "26 JSC Hisi. 53 (1941 ). (2001) for further regarding the evolution of 28/ndianapolis v. Cha.le Nalional Bank, 314 U.S. 63 decision. (1941). 71 332 U.S. 46 (1947). v. New l'()rk U.S 118 (1941). 72NOJ72I,n.16. 30314 U.S. 252 (1941). 73 Twining v. New Jersey, 211 U.S. (1908). llNDJ 314-317; Hirsch 157-159. U.S. 203 (1948). J1Simon, Tbe Antagonists: Hugo Black, Felix Frank­ 75NDJ 44 i. furler, and Civil Liberties in Modern America 126 76NDJ 734. The was Bailey v. Richardson, 341 U.S. (1989). 918 (1951). 161. The was Pearce v. Commissioner, 315 77 Bay Co. v. Aaron, 334 U.S. 446 (1948). US. 543 (1942). 78NO,J 435,723, n. 51. 34Recd Collection, Archives, University of Kentucky 79Ups/raw v. Uniled Siales, 335 U.S. 410 (1948). (hereafter Collection). SOLuslig v Uniled Slates, 338 US. 74 (1949); rfCllls v. J5Hirsch 159-160. This .Iettcr written during their dis­ Indiana, 338 49 (1949); Tarner v. Pennsvlvania, 338 pute regarding Bridges U.S. (1949); Harris v. Soulh Carolina, 338 U.S. 68 360ouglas, Go East, Young Man 459 (1974). ( 37Edwin Zimmerman, OBC 81 Frankfurter to Reed February 7, 1946, February 8, 1946, 3Rl'

84Hirsch 1 I04Schwartz, Super Chief 149 (1983), 8SManning, OHC 105347 US, 590 (1954), 86Denllis Uniled Stales, 341 US. 494 (1951), J06Radio Ollieers Union v. NLRB, US, 17 (1954). 87NDJ 500-501. J07Fassett, The Shaping Years: A Memoir or My Youth 88Gallegos v. Nebraska, 342 US, 55 (I I), and Education 141-142 (2000). 89NDJ 511, I08Memoir, 138, 90Collection. J09NDJ 91Breard Alexandria, 34 622 (1951), J IORoderick Hills, OHC 92NDJ IIINDJ584,

93343 US, 306 (1952). 112S/curel/a I'. Uniled Slales, 348 US. 385 (1955); 94NDJ 515-517, zales v Uniled Shiles. 348 U.S. 407 (1955): SII111110I1S v, 9SO'Brien, Justice Reed and the First Amendment: Thl" Uniled 348 U.s 397 (1956), Religion Clauses (1958), II3Emspak v. Uniled SIGleS, 349 U.S, J 90 (1 Quinn v. 96344 US. 443 (1953), Uniled Siales, 349 US (1955); Barf v United Sl!1les, 97NDJ 530, 349 US. 219 (1955), 9gUniled Stales v. 345 U.S. 22 (1953), 114 Williams v, Georgia, 349 US. (1955),

99Kedrof! I', SI. N,,:holas Calhedral, 344 US, 94 IISPelers Hobby, 349 U,S, 33 J (I 116NDJ 595, 100345 US. 395 (1953), 117!ndiol1 River Towing Co. v. Uniled Stales, 350 US, IOINDJ 61(1955). I02Brown E Board 01 Educalion, 347 US, 483 (1954); J 1 (1955).

Bolling I'. Sharp, 347 US, 497 (1954) II')Cole Young, 351 U,S 536 (1956); NDJ 610-1. I03Baker 308, 120352 US, XIII-XIV The Exception That Defines the Rule: Marshall's Marbury Strategy and the Development of Supreme Court Doctrine

SCOTT LEMIEUX*

Introduction: Marbury v. Madison and the Fragile Development of Judicial Power

the development of the European Court of Justice Laurence Helfer and Anne-Marie argue that in the early years of the court, ECJ "borrowed a leaf from Chief Justice John Marshall's book, principles forward while for those most likely to oppose them in ,,1 The most famous example of this paradox in can be found, in his seminal opinion in v. Madison. ofthe judicial branch to nuLlify legislation it deemed unconstitutional, Marshall used an implausible construction of the jurisdictional powers to the Supreme Court in Article III of the to deny the the remedy to which Marshall claimed he was otherwise entitled. While A4arbury is generally as the fountainhead of judicial review in the United States (and therefore in liberal democracies in as Mark Graber points out, the decision was in fact a "strategic judicial retreat .. in the face ofthreats executive. . power. .,) In order to assert the power of judicial in other words, Marshall had to refrain from applying it in the case in question. This paradoxical combination of power­ ous branch,,4-the relative institutional weak­ claiming and self-restraint has been most ness of the courts, before the pow­ often explained by emphasizing--following ers of judicial review were well established.5 Alexander Hamilton's argument in Federalist The Marshall Court was unwilling to compel #78 that the courts were the "least the Jefferson government to appoint 198 JOURNAL OF SUPREME COURT HISTORY to his Marshall's con­ Strange Development of "Strict tention that Marbury was entitled to Scrutiny" Equal Protection Doctrine the commission~precisely because a writ of One of the most important doctrinal mandamus would have almost certainly been ments in contemporary Court doc­ flouted, the institutional weak­ trine is the of "strict ness of the judicial branch. Ironically, there­ to state racial classifications in in order to enable the Supreme Court to whether they are consistent with the Equal Pro­ nullify legislation for the first Marshall tection Clause of the Fourteenth Amendment. ultimately had to defer to the actions ofthe ex­ Unlike the doctrinal the application ecutive branch by to grant a judicial of which to the state tends to be fluid in differ­ ent contexts, the invocation of strict As the this almost means that the state action will in the ofjudicial review be held to be unconstitutional. As Justice may be applicable in other contexts in which Thurgood Marshall once remarked, 'l:SJtrJct m the judiciary is to assert power in fatal in fact. of this, many struggles with other political institutions and contemporary battles have been over actors. In addition, this paradox can be iden­ which categories should be cate­ tified in the of other important to which strict scrutiny must be applied. areas of US. Court de- the arguments of some Justices that the fact that the Court had become a 8 sexual 9 much more authoritative institution.6 An anal- III should be of the of important theories I and in the areas of free the Establ ishment national Clause, and the Equal Protection Clause of to strict scrutiny.13 While to obvious the Fourteenth Amendment demonstrates that limitations, this doctrine has not been a trivial Marshall's of the potential as the basis of cru­ power of the Court to nullify while refusing to this power 15 its logical applicability in the case in question The historical antecedent of the strict­ common one. Even after the scrutiny test can be seen in the famous Footnote Four to US. Carotene Products,16 in which Harlan Fiske Stone articulated what came to be known as the "preferred freedoms" doctrine. to sacrifice an individual case outcome in or­ While der to influence Supreme Court doctrine in the to rest on a "ra­ term. judges in these cases tional basis," he argued, other forms of legisla­ have often modified their opinions in response tion might face a to and deliberation with other Jus­ be­ There may be narrower scope for op­ havior. In addition to its eration of the of consti­ in a context, tutionality when legislation appears tern of doctrinal development is important be­ on its face to be within a cause it the of o;r";PfY;r prohibition of the Constitution, such elements in judicial as those of the first ten relationships both between the judiciary and which are deemed equally specific other branches and among the Justices of the when held to be embraced within Court as well, the Fourteenth ... [P]rejudice THE DEVELOPMENT OF SUPREME COURT DOCTRINE 199

In a concurring opin­ ion in Regents of Uni­ versity of California v. Bakke, Justice Thurgood Marshall jokingly defined strict scrutiny as "strict in theory, fatal in fact."

discrete and insular minorities may be the not as of­ condition, which tends seri­ ten as is struck down to curtail the operation of those state and federal economic regulation. IS While political processes ordinarily thought some FOR-era notably to be relied upon to protect minori­ Felix and which may call for a cor­ decades of activism by publicly respondingly more more general policy of judicial restraint, inquiry,17 followed Jus-

Stone's Carotene Products footnote reflected interpretive framework that would distinguish the attempt judges to rehabil­ economic regulation, which would be pre­ itate judicial activism in the shadow of the sumed to be constitutional, from Lochner era of judicial in which and civil-liberties cases, in which the courts 200 JOURNAL OF SU COURT HISTORY

Harlan Fiske Stone (pictured here with Chief Justice William Howard Taft) articulated what came to be known as the "preferred freedoms" doctrine in the famous Footnote Four to US v. Carotene Products. While legislation dealing with economic regulation would simply be required to rest on a "rational basis," he argued, other forms of legislation might face a heightened level of scrutiny.

would have a role in scrutinizing of Footnote Four would make the ex­ state 20 tension of strict scrutiny to affirmar.ive-action Stone's emphasis on the protection of programs highly as it would not "discrete and insular" minorities implied that be a interest being protected by the Court).22 Like the assertion ofjudicial review in Marbury, the provenance of the scrutiny. While the mi­ standard forces us to consider norities has tended to fall under the purview of the institutional constraints on the Supreme the Establishment and Free Exercise clauses of Court, in addition to its Dotentiai for the First Amendment,21 the ofracial as a check on minorities has been undertaken by Theone to the truism that the Supreme Court via the Equal Protection strict scrutiny is "fatal in fact" happens to be Clause ofthe Fourteenth Amendment. The de­ the infamous case in which the standard was standard in introduced: Korematsu v. US.23 The case was evaluation of racial classifications that are em­ the culmination of a series of cases that tested bedded with would seem the a extension of the of Carolene Products (although it should be noted that the American citizens after the United States THE DEVELOPMENT SUPREME COURT DOCTRI 201 joined World War II. The by a 6-3 ma­ a "discrete and insular" maJority, the Court jority (which included not only the sided with the state. As Justice Robert Jackson deferential Frankfurter but~dismayingly to noted in his it seemed to flagrantly many future observers-the civil liber­ contradict the idea that "if any fundamental tarians L. Black and William O. assumption underlies our it is that the former of whom wrote the majority guilt is personal and not inheritable." And upheld the forced uprooting and intern­ it was in Justice Black's majority opin­ ment of 24 to ion that Footnote Four's de facto extension into "immunize the military equal-protection doctrine occurred. Prior to es­ dicial review during the constitutionality of the intern­ the rest of the majority in the face ment, Black outlined the test: of the military allowing the Court's "It should be noted, to with, that all le­ traditional deference to the executive dur­ restrictions which curtail the civil lng wartime to of a single racial group are immediately sus­ violations. pect. That is not to say that all such restric­ Whatever the merits and demerits of the tions are unconstitutional. It is to say that courts decision, it certainly did not constitute a rec­ them to the most application of Footnote Four: faced Black embedded into law the idea with explicit discrimination against that racial classifications are suspect and are

Korematsu v. United States was the culmination of a series of cases that tested the constitutionality of various measures taken against people of Japanese decent-including American citizens-after the United States joined World War II. The Court upheld the forced uprooting and internment of Japanese Americans. allowing the Court's traditional deference to the executive during wartime to trump systematic civil-rights violations. 202 JOURNAL OF SUPREME COURT HISTORY subject to a much stricter scrutiny than eco­ evitable, Black was able to introduce the strict­ nomic regulation-while upholding a racialist scrutiny standard into constitutional law with executive action. a minimum ofpolitical risk. We will see a sim­ As with John Marshall's assertion ofjudi­ ilar form of strategic behavior in the develop­ cial power in Marbury, it is difficult to avoid ment ofEstablishment Clause and Free Speech the obvious internal contradiction in the ma­ doctrine. jority opinion. While it is, of course, as Black The second strategic consideration in­ argues, theoretically possible for a Justice sin­ volved the relationship between individual Jus­ cerely applying the strict-scrutiny standard to tices, as Black tried to enlarge his majority.27 see racial classifications as necessary in partic­ Justice Douglas initially circulated a dissent ular circumstances, the evidence presented by in Korematsu. Eager to get his erstwhile ally the state was strikingly weak. Stripped of the to join his opinion, Justice Black strengthened racist generalizations, the government's case the section of his opinion outlining the sus­ would essentially evaporate; the federal courts pect nature of racial classifications as part of notably failed to push the state to provide evi­ a series of otherwise trivial changes intended dence that would have been necessary if strict to persuade Douglas to join his opinion28 This scrutiny were genuinely required.26 Neither the type ofstrategic behavior represents a subset of written opinions nor the remaining records of Marshall's Marbury gambit: including an im­ the deliberations ofthe Justices in the majority portant doctrinal shift that reflects a Justice's reflect an emphasis on justifying racial classi­ preferred position may persuade them to sign fications. Instead, the contradiction is almost on to an otherwise unpalatable outcome. As certainly explained by strategic factors. we will see in the next section, similar strategic The presence of strategic considerations considerations affected Black's seminal Estab­ in Black's opinion is manifest in at least two lishment Clause opinion. crucial respects. First of all, Korematsu repre­ sents a definitive example of John Marshall's Another Brick in the Wall: Everson tactic of "edging principles forward while de­ and the Establishment Clause ciding for those most likely to oppose them in practice." Introducing a concept that would The first clause of the Bill of Rights is an ad­ have been hotly contested by many political ac­ monition that "Congress shall make no law re­ tors involves much less risk in a decision that specting an establishment ofreligion." In spite most of the people who would find the con­ of the importance of this clause-reflected not cept in question problematic would enthusias­ only in its place in the Constitution but in the tically support. Since most of the individuals importance of the relationship between reli­ and groups who would be most likely to op­ gion and the state generally-it lay largely dor­ pose the application of rigid scrutiny to racial mant before World War II. Between 1833 and classifications were also the least likely to op­ 1948, the Supreme Court decided only two pose judicial deference to the executive during Establishment Clause cases29 The deference a military conflict (and, of course, were likely shown by the Court during this time period re­ to be strong defenders ofinternment itself), this flected a narrow interpretation ofthe Establish­ particular strategic context is certainly present ment Clause. Rather than the clause being read in this case. The deference shown by the ju­ as requiring that religion and the state remain diciary to the executive in wartime is hardly distinct, autonomous spheres, state entangle­ unusual, and the Court was almost certainly ments with religion were generally considered reluctant (as was Marshall) to force a politi­ constitutional as long as they were not mani­ cal showdown it would have almost certainly fested in the creation of a national reli­ lost. Accepting the outcome of the case as in­ gion. 3D The protection of religious minorities THE DEVELOPMENT OF SUPREME COURT DOCTRINE 203

Justice Hugo L Black (shown here taping a segment with Eric Sevareidl strengthened the section of his majority opinion in Korematsu outlining the suspect nature of racial classifications as part of a series of otherwise trivial changes intended to persuade Justice William O. Douglas to join his opinion. foreshadowed in Carolene Products did even­ would structure the debate for both adherents emerge, but and opponents for decades to come: The decision that marked the new will- of the Court to stricter scrutiny The "establishment of religion" clauses of the clause ofthe First Amendment means was the landmark case at least this: Neither a state nor the ~auc(uw'n ofEwing Town- Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or one religion over another. Nei­ in Everson an ther can force nor influence a per­ logic of Footnote Four. The case concerned the son to go to or to remain away from constitutionality of subsidies given by a New church his wi II or force him to school board that subsidized the trans­ profess a belief or disbelief in any re­ costs of ligion. No person can be punished for dren to {including schools. or religious Following a detailed history of the disestab­ beliefs or disbeliefs, for church at­ lishment of in the U.S. and the bene­ tendance or non-attendance. No tax fits of secular Black defended an in any amount, nrptllt:!('m of the Establishment Clause that be levied to 204 JOURNAL OF SUPREME COURT HISTORY

Everson v. Board of Education of Ewing Township concerned the constitutionality of a school board subsidizing the transportation costs of parents who sent their children to private (including parochial) schools. Following a detailed history of the disestablishment of religion in the United States and the benefits of secular government, Justice Black upheld the subsidies.

actIvitIes or institutions, whatever and impregnable. We could not approve the they may be called, or whatever form slightest breach. New Jersey has not breached they may adopt to teach or practice it here." Again, having signaled a fundamental religion. Neither a state nor the Fed­ shift in doctrine, the outcome of the decision eral Government can, openly or se­ was more consistent (at least on its face) with cretly, participate in the affairs ofany the status quo ante than with the newly minted religious organizations or groups and analysis. vice versa. In the words of Jefferson, The apparent internal contradiction be­ the clause against establishment ofre­ tween Black's arguments and his holding was ligion by law was intended to erect immediately apparent to most observers ofthe "a wall o/separation between Church Court, including the dissenters. Despite its 5-4 and State. ,,32 decision, the Court agreed unanimously to an unusual degree with Black's underlying consti­ Conceiving of the Establishment Clause as re­ tutional analysis; the only disagreement was quiring a "wall of separation" represented a with respect to its applicability. To an even major shift injudicial doctrine, as well as send­ greater extent than with Korematsu , where the ing a clear signal that the Court would scruti­ strict-scrutiny analysis was essentially limited nize state entanglements much more carefully to a single concise paragraph, Black's major­ than they had in the past. In a final analogy ity, given the outcome, read more like a dissent. with Korematsu, however, the case had a coun­ As one scholar notes, "The opinion drew crit­ terintuitive punchline: "The First Amendment icism from all quarters. Black's rhetoric and has erected a wall between church and state," dicta contrasted too sharply with his conclu­ Black argued, and "That wall must be kept high sion and holding to satisfy anyone.,,33 While DEVELOPMENT OF SUPREME COURT DOCTRINE 20S

New text and in terms of in the with any number of Court----manifested itself In other cases as of the Establishment Clause, it is difficult to weJI. 39 persuasively argue that it was consistent with While the the that an "impregnable wall" exists between religious institutions and the state. cantly more complex than the uV;>e-'\.(J{ The best for this dis­ of strict to racial cJas­ tinction between dicta and holding is, sifications, Everson was nonetheless an ex­ a strategic one, like those that best tremely influential decision that significantly Marshall's decision in First of transformed the Court's jurisprudence. First of while the Court was' not constrained the decision incorporated the Establish­ an immediate external crisis-as it was ment Clause to apply the states. In ad­ In otherwise decisions such as dition, it paved the way for crucial future nul­ Korematsu, Schenck v. US.,34 and Dennis with v Us. faced some external such as those in v. and constraints nonetheless. The Court's interven­ v, Arkansas,41 and even future decisions (most tions in church/state issues are often extremely importantly in Lemon v. Kurtzman)42 that mod­ 36 and the vast number of contexts ified Black's rhetoric and grappJed and re­ in which theoretically unconstitutional entan­ to its implications, Like glements can persist makes the Court's abil­ therefore, Everson laid the groundwork for fu­ ity to ensure compliance limitedY The ture Court action that was more consistent with a change in course in the its than with its outcome, although upholding the practice, this development was and not unidirec­ it limited the potential scope of immediate re­ tional. sistance, In this respect, one can clearly recog­ nize Marshall's Marbury in Speech and "Clear Everson. Present Perhaps more important, were The most famous phrase in American free­ the individual-level choices made in made its first appearance the between Justices, in the decisions ofthe Court in Oliver to one ofBlack's the majority de­ Wendell Holmes' opinion in Schenck v, United cision went through several iterations, and the States: expansIve of the be­ tween church and state was added largely in The most protection of free response to Justice Jackson's circulated dis­ sents: "If he had not written it as he he fire in a theatre and said 'Bob Jackson would have, I made it as tight and gave them as little room to ma­ teet a man from an against neuver as [ could," . , . His he remarked uttering words that may have all the at the time, was to make it a victory.,,38 effect offorce. The question in every The allowed Black to the coali­ case is whether the words used are tion upholding the state action together, while used in such circumstances and are the development of the doctrine in of such a nature as to create a clear a more (but not entirely) libertarian direction. and danger that they wi II As Walter notes, Black's attentive­ bring about the substantive evils that ness to the uu,~w,,,,.~ context of his decisions- Congress has a to prevent. It is a both in terms of the external institutional con­ question and 206 JOURNAL OF SUPREME COU HI

The "clear and present danger" standard artic­ ulated by Justice Oliver Wendell Holmes in Schenck proved to be extremely influential, al­ though it was buried in the majority opinion because at the time it was not supported by a majority of the Justices. This 1918 cartoon shows Uncle Sam rounding up enemies of the United States after Congress im­ posed severe penalties on speech that interfered with the prosecution of World War I.

On its Holmes' to define standard was a distinctly more restrictive the scope of the state's of the state's ability to criminalize represented a radical for its potential effects than was the tra­ ing Supreme Court doctrine. ditional, common law "bad tendency" test. The before 1920, to demonstrate a "dear and re- dalH!er would, at least theoretically, force the strictions on the contenl of state to meet a much more specific burden to state broad powers to criminalize justify political speech. fell under wide such as "sedition" The "clear and present danger" test, how­ or "obscenity.,,45 Holmes' by con­ ever, was highly ambiguous in its development trast, clearly implied that restrictions on (in this sense, it is more comparable to Everson based on content alone could not be consis­ than Korematsu.) Most importantly, Holmes tent with the First Amendment.46 While the upheld the state's convictions in Schenck state had the right to punish the of well as in two more cases dealing with con­ speech (actual or potential), it could not restrict victions based on the Espionage Act of 1917, speech based purely on its content. Frohwerk v. US. 47 and Debs v. Us. ,48 in the specification of a "clear and oresent dan­ which he did not invoke the "clear and THE OF E COURT DOCTRINE 207

Schenck and Abrams.55 Another part of the In itself somewhat using lan­ puzzle, I guage that was inconsistent with the "bad ten- bility that Holmes was making a test but without overruling cision similar to that of Marshall in the existing standard. it is that Holmes was unaware Not until Holmes' dissent in Abrams v. of the internal contradictions between the dif­ United in 1919 did he sub­ ferent standards articulated within Schenck. stitute the "clear and As decisions suggest, there was for the bad-tendency standard and argue that no of the Court willing to apply the the free-speech fights of the defendant should "clear and present standard. By intro­ be upheld against the state. In his ducing it within a majority opinion, Holmes jurisprudence, it was not Abrams, that created a springboard from which he could at­ was ultimately the aberration. In a series ofdis­ tack future from his nrptprrp{; sents joined by Louis D. approach. While the upholding of convictions .V·'1np·TPY V. Us.,50 Pierce v. based on the Act at the height of and Gitlow v. NeH' took the Holmes was able to "clear and present lined in Schenck to its conclusion and refused to uphold decisions that con­ the "clear and present danger" victions that were not based on Im­ standard articulated in Schenck did prove to mediate threats to public order. be extremely influential. Most impoftantly for While Holmes implied in these seminal our purposes, the test was always used in a dissents that his jurisprudence on the issue was way consistent with its application in Abrams, ofa the Court was his not in Schenck. As David Rabban notes, from decision in Schenck-it is difficult to avoid the roughly 1930 until the conclusion that his arguments in Schenck and Court decisions on Abrams were fundamentally and present test" when speech, but The facts of Schenck and Abrams never invoked clear and danger in de­ are and it is First Amend­ sible to argue that the defendant in Schenck ment claims. 56 an immediate threat to the social the "clear and order. One way ofexplaining this difference is trans formative, in Holmes' ambiguous position on free sition on free speech was Holmes was not a staunch absolutist defender of First Amendment rights in the manner of William O. or Hugo L. Black. While of free Korematsu and to encourage the the text of which was more in­ that allowed to develop, he was not dicative of future Court than was sympathetic to libertarian its outcome. As Robert points claims. out, "[A]lthough the individual conviction Holmes' ambivalence toward the First was ... upheld, Holmes had scotched an old Amendment jurisprudence he articulated fol- and persistent idea that the of the Schenck reveals only part of the story. First Amendment was very narrow, and had As David points out, Holmes' committed the Court to an tions on free evolved over time, but ian formula for determining when may there is no evidence that changed between be ,,57 208 JOURNAL OF SUPREME COU HISTORY

This is not to say, however, that the "clear and standard was accepted Court's somewhat the Suoreme Court in the way that the strict- ofthis standard at the standard has or that it has con­ anal­ tinued to structure the oarameters of judicial ogous to Srhcn,rir further demonstrates conflict in the way that Everson's separation with Koremalsu and that the Court of church and state doctrine has. Some Jus- is often constrained of per­ such as Felix Frankfurter and the sec­ ceived national crisis or pop­ ond Justice John Marshall Harlan, consistently ular opinion. The advocated a less restrictive balancing stan­ Supreme Court these cases affirm, is dard more akin to the test58 Per- strongly affected by the institutional and polit­ more while the Everson and ical context of the Court. Korematsu doctrines were generally em­ braced-at least by the judges who favored Conclusion: Power, a strong role for the Court--civil and the Supreme Court libertarian Justices such as Black and Douglas that "the 'clear and present danger' While I doctrine should have no place in the inter­ of the First Amendment."59 The est, two Holmes/Brandeis version of clear and First of was pattern is Court overruled 1969 decision important new doctrines-such as, for exam­ dard survives to 111 ple, the right to in Griswold v. Con­ the that the Court has necticut61 and, of course, Marshall's adopted since then; Schenck a stan­ tation of the Necessary and Clause in dard for restrictions on freedom of AfcCulloch v. been devel­ speech that was more restrictive than the bad­ oped and applied in a more uniform manner.

tendency test but stoDDed short ofa libertarian Secondly, while I have used the Jiter­ approach. ature to identify the most important major ele­ A final point should be made about the ments of the strategic and institutional context major exception to in which the doctrines ofstrict separa­ of clear and present . Dennis v. United tion of church and state, and clear and present States. In this J951 case, Chief Justice Fred danger developed, it would take case Vinson, arguing that are squarely pre­ studies that are beyond the scope of this paper sented with the of the 'clear and to map out the context in which these doctrines present danger' test," used the test to sup­ were developed in greater detaiL port the conviction of Communist Party ac­ Nonetheless, the presence def­ tivists under the Smith Act of 1940. Over erence in the very inception of three "hard dissents cases"--doctrines commonly cited as exam- dissents three decades of judicial that the Douglas, the majority moves identified by scholars in tion of the Smith Act was consistent with the have remained relevant even as the "clear and present Court has gained legitimacy and authority. As for his part, argued for the more conventional the study ofthis tendency can be a worth­ post-Schenck interpretation: only way while addition to the burgeoning literature to affirm these convictions is to on judicial strategy that has developed from THE DEVELOPMENT OF SUPREME COURT DOCTRINE 209

Murphy's seminal work.63 Moreover, this pat­ live action programs. See Gillman and Clayton (1999). tern surely exists in other doctrinal areas as Current doctrine on the subj ect is fluid and fractured. In well: the appearance of substantive due pro­ general, affirmative action has occupied an "intermedi­ ate" scrutiny position along with gender, although several cess in Munn v. Illinois, for example, would Justices have advocated the application of strict scrutiny be a good candidate for further study within and may develop a majority. See Ball, Howard. 2000. The this framework. At any rate, the fact that sev­ Bakke Case: Race, Education, and Affirmative Action. eral important doctrines have been developed Lawrence: University Press of Kansas. before they have been applied provides further 12See Pyler v. Doe, 457 U.S. 202 ( 1982). 13For further discussion about the development of the evidence that, even in areas in which they ap­ Court's equal protection jurisprudence, as well as a tren­ pear most powerful, both the decision-making chant critique of its limitations, see McCann, Michael. of individual Justices and the powers of the 1989. "Equal Protection for Social Inequality: Race and Court as a whole operate within significant in­ Class in American Constitutional Ideology" in Judging stitutional constraints. the Constitution, edited by Michael McCann and Gerald Houseman. Glenview, IL: Scott Foresman/Little, Brown. 14347 U.S. 483 (1954). *Note: Winner 0/ the 2003 Hughes-Gossett ) 5388 U.S. I ( 1967). Student Essay Award. J63 04 U.S. 144 ( 1938). 17AIl quotes from Supreme Court cases are taken from ENDNOTES online archives at http://www.findlaw.com. 18See Gillman, Howard. 1993. The Constitution Be­ 1Helfer , Laurence R., and Anne-Marie Slaughter. 1997. sieged: The Rise and Demise of Lochner Era Police "Toward a Theory of Effective Supranational Adjudica­ Powers Jurisprudence. Durham, NC: Duke University tion." Yale La w Journal 107: 314-315. Press. 2For furt her elaborati on of this point, see McCloskey, 191 emphasize the "public" nature of Fraflkfurter's judi­ Robert G., and Sanford Levinson. 2000. The Ameri­ c ial restraint. Some scholars have argued that Frankfurter'S can Supreme Court, 3,d ed., rev. Chicago: University of professed judicial restrai nt was, in fact, mere ly a mask for Chicago Press, 25- 28. increasi ng ly conservative politics. See Spaeth, Harold .I., 3G raber, Mark A. 1999. "The Problematic Establi shment and Michael F. Altfeld. 1986. " Felix Frankfurter, Judicial ofJudicial Review" in The Supreme Court in American Activism, and Voting Conflict on the Warren Court" in Ju­ Politics, edited by Howard Gillman and Cornell C layton. dicial Connict and Consensus, edited by Sheldon Gold­ Lawrence: University Press of Kansas, 28 . man and Charles M. Lamb. Lexington: University Press of 4In Hamilton, Alexander, James Madison, and John Jay. Kentucky. For comparisons of the different paths taken by 1987. The Federalist Papers. London: Penguin, 437. Frankfurter and other progressives, see Simon, James F. 5See Epste in , Lee, and .lack Knight. 1998. The Choices 1989. The Antagonists: Hugo Black, Felix Frankfurter, Justices Make. Washington, DC: CQ Press; Graber and Civil Liberties in Modern America. New York: ( 1999); McCloskey and Levinson (2000). Simon and Schuster. 60f course, some political scientists have argued that 20See McCloskey and Levinson (2000), ch.7. the institu tional powers of the Court remain overstated. 21The landmark decision that anflounced the Court's in­ See, for example, Rosenberg, Gerald N. 199 I. The Hol­ creased willingness to defend religious minorities can be low Hope: Can Courts Bring about Social Change? found in Wesl Virginia Board ojEducatiol1 v. Barnette, 3 19 Chicago: University of Chicago. Dahl, Robert A. 1957. U.S. 624 ( 1943 ), in which the Court (over a dissent from "Decision-Making in a Democracy: The Supreme Court Frankfurter, whose own precedent was being overturned) as a National Policy-Maker." Journal of Public Law 6: protected the right s of Jehovah's Witnesses by nullifying 279-295. a statute th at called fo r compulsory fla g salutes for public 7Regents ofUniversity ofCalifornia v. Bakke, 483 U.S. , at schoolchildren. 362 . .I. Marshall concurring. 22For further elaborat ion of this point, see He! fer SSee, for example, Craig v. Boren, 429 U.S. 190 (1976), and Slaughter ( 1997), 273-391. Ely, John Hart. 1980. and U.S v. Virginia, 518 US. 515 ( 1996). Democracy a nd Distrust: A Theory of Judicial Re­ 9See, for example, Bowers v. Hardwick, 478 U.S. 186 view. Cambridge, M A: Harvard Uni versity Press, 170­ (1986), and Romer v. Evans, 517 U.S. 620 ( 1996). 172. IOSee San Antonio v. Rodriguez, 41 I U.S. I ( 1973). 23323 U.S. 214 (1944). liThe one possible exception from the app li cation ofstrict 24For a fu ll account, see Irons, Peter. 1993. Justice at scrutiny to racial categories is w ith respect to affirma­ War. Berkeley: University ofCalifornia Press. Rehnquist, 210 JOURNAL OF COURT HISTORY

William H, 1998, All the Laws but One: Civil Liberties 40370 U.S, 421 (1962). in Wartime, New York: Knopf, ciL 15, 4J393 u.s, 97 (1968), 25Newman, Roger K, 1997, Hugo Black: A Biography, 42403 U.S. 602, New York: Fordham University Press, 316, 43249 U.S. 47, 52. Emphasis added. Irons (1993); Iroos, Peter H. 1999, A People's His­ 440f course, while Barrol1 v, Baltimore, 32 U.S, 243 tory ofthe Supreme Court. New York: Viking, 357-361, (1833), was seen as being the controlling case on incorpo­ As Justice Jackson argued in his dissent, "How does the ration of the Bill of Rights, the Court also allowed scores Court know that these orders have a reasonable basis in of similar Slate laws to stand, The Free Speech Clause of necessity" No evidence whatever on that subject has been the First Amendment was nOt applied against the states taken by this or any other court, There is sharp contro­ until Fiske 1\ KolI.ws, 274 C,S. 380 (1927) (although, in to the credibility of the DeWitt report. So the such as Gilloll' c, New York, 268 (1925), and Gilbert v, Minnesola, 254 US, 325 (l920), but General DeWitt's own had implied that the First statement, untested by any cross-examination, that rctically be applied the he did was reasonable" For a qualified defense 45For a detailed account ofFirst Amendment jurisprudence aspects ofKorematsu-which remains nonetheless skepti­ prioflo 1920, see Rabban, David, 1981 'The cal that American citizens, at least, could been legally ment in Its Forgotten " Yale Law JOllrnal90: 514­ interned-see Rehnquist (1998), cil, 16, 595, 27Again, the analogy with Marshall is strong: Walter 46However, of the aforementioned categories, Holmes' Murphy titled the chapter in his seminal Elements of standard would apply only to "seditious" speech, as ob­ Judicial Strategy outlining the importance of Judicial scenity continued to not be considered "speech" protected leadership and strategic coalition-building "Marshalling by the First Amendment the Court" for good reason. See Murphy, Walter. 1964, 47 249 US, 204 (1919). Elements of Judicial Strategy, Chicago: University of 48249 US 211 (1919). Chicago Press, ch, 3, 49250 Cs. 616 (1919). 28Newman (1997), 316-318, 50251 CS, 47 (1920), 29Gedicks, Frederick Mark. 1992. m The Ox­ 51286 U.S. 510 (I ford Companion to the Supreme Court of the United 52268 US. 652 (1925). States, edited by Kermit Hall. York: Oxford, 71 53See, for example, Ragan, Fred, 1971, "Justice Oliver 30See Kauper, G, Religion and the Consti­ Wendell Holmes Chafee and tution. Baton Rouge: Louisiana Press. First Year."

Levy, Leonard, 1994, The Establishment Clause: Reli­ Journal of /WlLibertarianism. Berke­ recent example, ley: University of California Press, 108; Menand, Louis. 37Canon, Bradley, and Johnson, 199K Judicial 200 I The Metaphysical Club. New York: Farrar Straus, Politics: implementation impact, Washington, DC: and Giroux; and Alschuler, Albert W. 2()0f), Law without CQ Press, 64-65, Values: The Life, Work, and Legacy ofJustice Holmes 38Newman ( I 997), Chicago: of Chicago Press, 39Two of Murphy's are the "trap pass" Black 'The Free Speech Metamorphosis executed in US Bethlehem Steel, in which he used of.Mr. Jusllce Holmes," Hofitra Low Repi",,,, 97, narrow statutory construction to defer to Congress with­ 56Rabban (1983), 1205, out appearing to duck the issue, and the complex ne· 57McCIoskey and Levinson (2000), 115. gotiations involving opinion assignment and changes in SgSee Frankfurter's concurrence in Dennis v, US, 341 US, the affirmation of the Sherman Act. Murphy (1964) 45, 494 (1951), and Harlan's opinion in Barenbiatt v, US, 360 129-130. U.S. 109, THE DEVELOPMENT OF SUPREME COURT DOCTRINE 211

59The pbrase JS from Black's concurrence in Brandenberg 63Murphy (1964) See, for example, Epstein and Knight

II, US, 444, In his concurrence in the same case. ( 1998); and Maltzman, Forrest, James E Spriggs, and Paul Douglas expanded on this analysis, arguing that "[TJne line 1 Wahlbeck 1999, "Strategy and Judicial Choice: New between what is permissible and not subject to control and InstitutIOnalist Approaches to Supreme Court Decision­ what may be imperm issible and subject to regulation Making," in Supreme Court Decision-Making, edited is the line between ideas and over! aCls," by Cornell Clayton and Howard Gillman, Chicago: Uni­ U.S. 357 (1927). versity of Chicago.The importance of strategic behavior, 6)381 U.S. 479 (1965). moreover, not confined to explicitly 6217US. 16(1819). rational-choice analyses; McCann (J 999). 212

Contributors

John D. Fassett clerked for Justice Stanley Allen Sharp is a district court judge for the Reed during the 1953 Term. He is the author of northern district ofIndiana. New Deal Justice: The Life of Stanley Reed of Kentuckv (I Michael J. C. Taylor is an assistant profes­ sor ofHistory at Dickinson State University in Scott E. Lemieux is a doctoral candidate in North Dakota. political science at the of Washing­ ton. His article won the 2003 Melvin 1. Urofsky is chair of the Board of Prize for best student essay. Editors of the Journal Court His- He is the director of the Doctoral Pro­ Sandra O'Connor has been an Associate gram in Public and Administration at Justice since 1981. She delivered this paper as the Center for Public Policy at Virginia Com­ the Society's Annual Lecture in June 2002. monwealth University. 213

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All photos courtesy of the except Page 161, Collection oflhe United as noted below: States; Harris & Ewing Page I 09(all), State Historical of Page 168, Courtesy of John D. Wisconsin Page 171, Collection orthe of the United Page J J 0, State Historical of Wisconsin States; Harris & Ewing Page 125(both), Indiana Historical Society Page 182, Collection of the Supreme Court of the United Page 130(right and bottom), Indiana HistOrical States; Harris & Ewing Society Page 193, Wide World Page J 46(1eft), American Jewish Archives Page 20 I, Wide World Nazi Saboteurs on Trial A Military Tribunal and American law Louis Fisher "fisher's and account of the Court's decision in Ex reveals how the resisted wartime pressures and how they failed to protect fights by the constitution."~Michal R. Belknap, author of The VieLnam War 011 ThaI: The My Lai Massacre and Court Martial oj Lieutenallt "After 9111, American civil liberties seem to have entered an AllCe-in-Wonderland rabbit hole indefinite detentions and verdicts-so very as Fisher reminds us, to the wild from due process tbat characterized thiS famous 1942 -Robert Goldstein, author of Flar BurnilH! Clnd Free 200 pages, Cloth $29.95 Rehnquist Justice Understanding Court Dynamic Edited bv M. Maltz

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