DOCUMENT MESONS

ID 174 542 SO 011 883

AUTHOR Harrell, Mary Ann Court in TITLE Equal Justice Under Law: The Supreme American Life. INSTITUTION Foundation of the Federal BarAssociation Washington, D.C. PUB DATA 75 NOTE 151p. AVAILABLE FFCM Foundation of the Federal BarAssociation, 1815 H Street, N.W. ,Washington, D.C. 20006 ($2.50)

EDFS PRICE MF01 Plus Postage. PC hot Availablefrom EDRS. DESCRIFICPS Constitutional History; *Constitutional Law;Court Doctrine; *Court Role; *Federal Courts;Federal Government; Government Role; Justice;Legal Problems; Secondary Education; *Supreme CourtLitigation; *United States History IDENTIFIERS *Supreme Court; United StatesConstitution

ABSTRACT The document descrites theestablishment, development, procedures, and some landmark casescf the U.S. Supreme Court. The objective is to explorethe history cf the court and tc explain its role in the American systemof government. The booklet is presented in fcut chapters. Thefirst chapter, entitled "A Heritage of Law," offers judicialbackground from the 1606 VirginiaCharter tc the Constitution and Bill ofRights. The seccrd chapter, whichforrs the valor part of the document,is entitled "Eecisiors for Liberty." It traces the court's growth of scopethrough precedent-setting decisions sigh as Chisholm v. Georgiain 1793, Marbury v.Madison in 18C3, McCulloch v. Maryland in1819, Gibbors v. Ogden in 1824, Dred Scott v. Sandford in 1857, Munn v.Illinois in 1877, Northern Securities v. United States in 1904,Adkins v. Children's Hospital in 1923, Brown v. Board of Educationin 1951, Gidecn v. Wainwright in 1963, and Roe v. Wade in 1973.Chief Justices and events are described historically in connectionwits the cases, from John Jay to Warren Burger, as the court's power asinterpreter of the Constitution grew. The third chapterdiscusses court procedures, staff dut-ies, the building, and theduties of the justices. Chapter IV offers a brief descriptionof the powers and limitationsof the federal court system, including contemporaryreforms and technical innovations. Ar index concludes thetookle'. (CK)

444*************************************4****************************** Fenroductions supplied by EDP P.re the best that canbe made from the original docomert. 1$1,41030**30#***#.41#20******************************************************* EQUAL JUSTICE UNDER LAW

THE SUPREME COURT IN AMERICAN LIFE

By MARY ANN HARRELL National Geographic Staff

"PERMISSION TO REPRODUCE THIS U.S. DEPARTMENT OF HEALTH. MATERIAL IN MICROFICHEONLY EDUCATION &WELFARE HAS BEEN GRANTED BY NATIONAL INSTITUTE OP EDUCATION 4;-Lri THIS DOCUMENT HASSEEN REPRO- DUCED EXACTLY AS RECEIVEDFROM THE PERSON OR ORGANIZATION *TING IT POINTS OF VIEWOR OPINIONS STATED DO NOT NECESSARILYREPRE- TO THE EDUCATIONAL RESOURCES SENT orro-cAL NATIONAL INSTITUTEOF EDUCATION POSITION OR POLICY INFORMATION CENTER(ERIC)."

THE FOUNDATION OF THE FEDERAL BAR ASSOCIATION

with the cooperation of the National Geographic Society

WASHINGTON. D. C. Copyright © 1965, 1975 by THE FOUNDATION OF THE FED- ERAL BAR ASSOCIATION. a nonprofit educationalfoundation chartered, %, Congress on August 24, 1954. Headquarters: 904 Feder., Nan Building. Washington, D. C. 20006

BOARD OF DIRECTORS Earl W. Kintner President William L. Ellis Vice President Marshall C. Gardner Secretary Bettin Stalling Treasurer Frederick R. Franklin Historian Warren E. Burger. Henry A. Dudley. Scott Hodes. Conrad D. Philos. C. Normand Poirier. Bernard G. Segal. Paul E. Treusch Advisers: Ralph E. Becker. Lawrence R. Caru- so. Charles Fahy, Paul H. Gantt. John H. Grosvenor. A. S. Harzenstein. Gilbert Jaco- bus. Thomas D. Lambros, Alfred P. Murrah. George S.Prugh, Jr..Marguerite Rawalt, Joseph F. Spaniol. Jr.. F. Trowbridge vom Baur. Counsel: Kenneth H. Liles sokiranY smutbelow the American eagle distinguishes the Seal of the Produced as a public service Supreme Court of the United States. by the National Geographic Society Justices ordered the emblem at their Melvin M. Payne President Melville Bell Grosvenor Editor-in-Chief third meeting, on February 3, 1790. Its designers adapted the Great Seal Prepared by the Special Publications Division of the United States, adding the star STAFF FOR THIS BOOK W s y m b o l l t e t h e Constitution's grant Melvin NI. Payne Editorial Director of judicial power to "one Supreme Editor Robert L. Breeden Court." The Clerk of the Court Donald J. Crump Associate Editor Philip B. Silcott Senior Editor affixes the Seal to official papers EDITORIAL STAFF: Jules B. Billard. Bruce Brander. judgments, mandates, and wets. Abigail T. Brett. Thomas Canby. Jr.. Dorothy Corson. Barbara Coulter. Richard M. Crum. Johanna G. Far- ren, Barbara J. Hall. Carolyn Matt. GeraldineLinder. Margaret C. Shaw. 0. Mac White. Peggy D. Winston STAFF FOR THIRD EDITION: Merrill Windsor.Manag- ing Editor; David R. Bridge. Picture Editor; Jane D'Alelio. Design; Susan Burns. Research; Mary G. CONTENTS Burns. Jane H. Buxton. Stephanie S. Cooke. Marta Isabel Coons. Suzanne J. Jacobson. Marilyn L. Wilbur. Linda M. Yee. Staff Assistants Foreword S PRODUCTION AND PRINTING: Robert W. Messer.Pro- duction Manager; George V. White. Assistant Pro- duction Manager; Raja D. Murshed. Nancy W. Glaser. 6 June 1.. Graham, Production Assistants: John R. A Heritage of Law Metcaffe, James R. Whitney. Engraving and Printing Third Edition Decisions for Liberty 15 Library of Congress Catalog Card Number 74-15417

OVERLEAP: James Earle Fraser's "Contemplationof Justice" sits brooding before the main west entrance Within the Court Today 115 Of the Court. ENDPAPERS: One hundred Justices have served on the The Federal Court System 144 Supreme Court since its birth in 1790. The rows of pictures running horizontally present the jurists, with terms of service, in the order of taking the oath. Aster- Index 15',) isks indicate the 15 Chief Justices. John Rutledge was named Chief Justice by a recess appointment in 1 795 and served briefly, but the Senate 'ejected him when it reconvened.

OVIV1.1141/, SOUPS I CM11,110al N I f 130.111M V1.101,04111110041 0000 IS. 11.01.41110f COMM. CO,WIlle Foreword

REVERED AND ABUSEDasnoother We hope this story of the Court will be court has ever been, least known of part of that debate, which began almost as the great institutions of the United soon as the Justices started hearing cases. States, the Supreme Court holds a unique Although we believe lawyers will enjoy it, power in the American system of govern- itis not written especially for them. and ment----a unique place in the American story. legal technicalities are not its theme. To tell that story and to explain that pow- The theme is a national adventure. Its er. the Foundation of the Federal Bar As- episodes are crises and struggles and con- sociation is publishing this book. flicts. Its setting is a continent and beyond George Washington said that "the due and a few small rooms. administration of justice is the firmest pillar To present this story, Dr. Melville Bell of good Government." The Foundation Grosvenor, Editor-in-Chief, and Dr. Mel- works to improve that administration, par- vin M. Payne, President, have generously ticularly in the federal courts. It acts,for shared the resources of the National Geo- the Federal Bar Association, whose 13,600 graphic Society with the Foundation; and members have served or now serve as attor- we are happy to thank them for their help. neys or judges for the national government. In this project, they and their staff col- Believing that each citizen must be the leagues have performed a great service to final judge of good government, it has the Nation. planned this book to serve the public. Members of our Foundation have selected When the First Congress was debating a landmark cases and reviewed both text and bill to establish a federal court system, one pictures which follow. The Foundation as- Representative from New Hampshire ex- sumes full responsibility for the contents of pected it to "give great disgust." He could the volume, which we are proud to sponsor. see no reason for a national judiciary, "un- With publication of thisedition,the lessit be to plague mankind." His fears Foundation welcomes a new organization have not materialized. Today this system that has joined us in encouraging public has begun an unprecedented effort at self- interest in the Court: The Supreme Court improvement and innovation: and this book Historical Society, whose specific purpose includes a report on that program of change. is to preserve and extend knowledge and Most people never enter the federalappreciation of the history of the Court courts, either as parties to a lawsuit or and the Nation's judicial system. members of a jurynot even as spectators. For everyone who has worked on this They think of the courts as strange and re- book and for everyone who reads it. we mote if they think of them at all. And they hope it will mean a new devotion to the believe, with some validity, that the law is a ideals of the Constitution, to the purposes hramble patch of technicalities and strange which have been the special trust of the iords. They might reasonably expe 'T tht'f Supreme Court"to form a more perfect Supreme Court to be the most remote olitlt. Union, establish Justice ... and secure the far from =everyday affairs. And yet it is not; Blessings of Liberty to ourselves and our it is "supreme." but still very close to the Posterity." And we hope it will mean a new lives and activities of all Americans. pride in law as our way of using freedom. From day to day the headlines announce its decisions, the editorials praise and de- EARL W. KINTNER nounce them. and citizens wrangle about President. The Foundati,,n them in law schools and living rooms. of the Federal Bar Association

5

of the English tradition. But no English judge can say from the bench, as an American judge may say: "The law on thebooks says thus-and- so; but in spite of the fact that the legislature passedit in due form, this law is voidit is unconstitutional and therefore no law at all." The English constitution has remained unwritten; it was, and still is, a mass of precedents, and of rules drawn from them. But inAmerica the colonists got used to something else: the idea of one written agreement as the basis of government. In 1606 a charter from King James Ioutlined a plan of government for settlers in Virginia.Before the Pilgrims landed in 1620, they drew up the Mayflower Compact for themselves,with a solemn promise to make and obey "just and equal Laws" for the general good. Royal and proprietary colonies alike had their written charters.

Fr HE COLONISTS came to think of these documents as sharing the 1 sanctity of natural law, the supremacy of natural rights, the solidar- ity of human society. They were thinking of their charters as we think of our Constitution. Increasingly, many colonists came to regard Parlia- ment's laws on colonial affairs as unjust, even tyrannical. They appealed to the principles of a higher law, which could nullify even Actsof Par- liament. Finally, they appealed to armsthey fought the Revolution. War brought victory; peace brought trouble. America's first consti- tution, the "Articles of Confederation and perpetual Union," set up a "firm league of friendship," a government so simple it didn't work. Each state kept its "sovereignty, freedom and independence," and every power not expressly given to Congress. That Congress one housein which each state had one vote, had to rely on the states for soldiers of money or law enforcement. Often the statesdidn't cooperate. Distressed, George Washington saw that the country had "thirteen heads, or one head without competent powers." John Jay warned in 1783 that Europe watched "with jealousy, and jealousy is seldom idle"weakness at home might tempt assault from abroad. The states squabbled among themselves over trade; in 1786 James Madison wrote gloomily to Thomas Jefferson about the "present anarchy of our com- merce." Protests grew sharper, until Congress reluctantly called for a convention to meet in Philadelphia in May, 1787, "for the sole and express purpose of revising the Articles of Confederation." The delegates straggled in, elected Washington to preside, and with great courage and good sense disobeyed their instructions.They went to work to create 4 new government"a national government ... con- sisting of a supreme Legislative, Executive and Judiciary." Their splen- did disobedience produced the Constitution of the United States. It was no'I the Articles they revised, it was the future. They invented something new, a plan for power the world had never seen before, an intricate system with both the states andthe central government dealing directly with the people. After long angry debates they compromised on a new kind of Con- gress, with two houses. After more wrangles they accepted theidea of an executive, a President. Without any argument at allthe delegates

THE LAW, WHEREIN, AS IN A MAGIC MIRROR,we see reflected not only our own lives." noted (Myer Wendell Holmes. Jr.. "but thelives of till men that have been!" Visitors stand at the threshold of the Nation's citadel of law. the Supreme Court. The dome of the Capitol rises in the west. SCN!'C) M G S ftAliOMAL G(OGnAINIC PHOFOGRAPHIN Jostrm 9 accepted the proposal for a Supreme Court.ber 15,1791, the Bill of Rights was in force. They agreed on the kinds of cases courts of Now a "more perfect Union" replaced the United States should try; when they the faltering "league of friendship," and the disagreed over details for the lower courts,new nation began its great experiment of they left the matter up to the new Congress. liberty under the law. In time, the Supreme Soberly, for a long time, they thought Court became the interpreter of the supreme about the most important problem of all. law of the landnot because the delegates The country's simple government under the provided that it must, but because things Articles had not worked well. Now the dele- worked out that way. gates were offering a complicated arrange- Associate Justice William J. Brennan, Jr., ment with many more points to quarrelsays: "... the Founding Fathers knew bet- aboutwho should make the final decisionter than to pin down their descendants too in disputes about the Constitution'? closely. Enduring principles rather than petty details were what they sought to write TO THIS QUESTION the delegatesdown. Thus it is that the Constitution does gave no final answer. But they adopted not take the form of a litany of specifics." a sentence to make an answer possible: And so disputes over its meaning have **This Constitution, and the Laws of the continued. But Chief Justice John Marshall United States which shall be made in Pur-declared: "It is emphatically the province suance thereof... shall be the Supreme Lawand duty of the judiciary department to say of the Land...." what the law is." He warned: "We must Angry debates and even brawls accom- never forget that it is a constitution we are panied the immediate question: Should theexpounding ... intended to endure for ages people accept this new system? Patrick to come, and consequently, to ba adapted to Henry spoke the fears of many when hethe various crises of human affairs." cried, It squints towards monarchy. Your Charles Evans Hughes, who would be- President may easily become King." come Chief Justice himself, stated the And where was a bill of tights? Most ofCourt's responsibility more bluntly in 190'1 the states had one in their own constitutions, We are under a Constitution, but the Con- and saw dangers in a document that failedstitution is what the judges say it is." to provide a, list of liberties. Pamphlets came So the Judges find its words "loaded," as thick and fast. Some cried: Associate Justice Byron R. White says to- That the convention in grew fury day. For more than a century the Court has Have taken away the trial by jury: been deciding cases that twine about a sin- That liberty of press is gone. gle statement, Congress shall have the pow- We shall he hang'd. each mothers son.... er to regulate commerce among the several For months the issue was uncertain, be-states. On four simple words, "due process cause nine of the original 13 states had toof law," the Court has written volumes. ratify the Constitution before it would be- Still, in dealing with constitutional prob- come law. But by June 21,1788, the ninthlems, the Court is free to change its mind. New Hampshirehad acted. Justices have overruled their predecessors In the First Congress, James Madison and themselves, to correct a decision in the led in drafting amendments to protect thelight of experience. They sit as -a kind of freedom and rights of the people: the statesConstitutional Convention in continuous approved them promptly. and, by Decem-session," said Woodrow Wilson. Their

RARE INFORMAL PORTRAIT shows members of thv Court in the paneled and pilastered East Conference Room. From left: Associate Justices Harry A. Blackmun. Potter Stewart. Lewis F. Powell. Jr.. Thurgood Marshall, William H. Rehnquist. Byron R. White. William 0. Douglas. Chief Justice Warren E. Burger. Associate Justice William J. Brennan. Jr. Scrupulous in observing the proprieties of their office. the Justices seldom pose so casually. Rembrandt Peale famous "porthole portrait" of Chief Justice John Marshall hangs above them. 1 9 koflir S01111,S, .111,, M 116101/011.(C, S .r"

changing views have helped make the Con- Wilson tried to liberalize its membership: stitution meet the needs of each successive and Franklin D. Roosevelt proposed to generation. But again and again they have 'reorganize' it, stirred tip wrath and controversy. You feel this timeless epic when you stand Before he became Associate Justice, in the empty Courtroom today. Here the Robert I I. Jackson pointed out that Supreme voices of famous lawyers seem to come out Court Justices (Jeri% e their offices from the of the stillnessJohn Quincy Adams. for- favor of Presidential appoilitment and Sen- midable and old: Henry Clay. taking a pinch ate confirmation. \ml they are "subject to from the Judges' snuffbox: Daniel Webster, an undefined. unlimited. and unreviewable in his legendary tribute to his alma mater. ongressional power of impeachment.... Dartmouth"a small college. and yet there .ertainlx so dependent an institution would are those who love it.'' excite no fars.. Here is great dramaa Dred Scott case And vet. he said. "this Court has repeat- inflaming the passions of a nation. And an edly overruled and thwarted both the Con- attorney. mortally ill, who left a hospital gress and the Fs xecutive. It has been in angry bed to address the Court, then mustered collision with the most dynamic and popular strength to write thanking the Justices for Presidents in our histon.. Jefferson retali- their courtesy before he died the next day. ated with impeachment: Jackson denied Here is intense emotionJustice ,fames Ithe ( owl's Iauthority: Abraham Lincoln M. Wayne during the Civil War years speak- disobexed a r tof the Chief Justice.... ing for the Union when his state and his NATIONAL POST

THUNDEROUS ORATOR, lawyer Da, argued the Dartmouth College case the Supreme Court and won a lanch sion that protected private property encouraged growth of business corp in all branches of commerce and in When the Justices decided this ca were performing the con'inuing fun lerthe Courtto interpret the Constitu to and to define the law of the land. ief Every citizen has been affected bj )se of the Court since the ear& days of Republic. "It passes on his property he reputation, his life, his all," said C/i, he Justice John Marshall, who heard tI ci- Dartmouth College case. he Residents of Hanover, New Hamp ity stroll before Dartmouth Hall in this ks drawing (above left). When the state all turn Dartmouth from a privately CP', z.h college into a state university, the cc sefiled suit and retained Webster. who: ment became legend. "The question ng this," he contended: "Shall our state 's- ture be allowed to take that which is id own .'..?" No, said the Supreme Col ofit held for the first time that a chant leincorporation is a contract which no has constitutional power to impair.

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, #.67., , 4:Ming 11 Decisions for Liberty

WHFNEVER JUDGES. lawyers. sylvania. James Iredell of North Carolina. and legal scholars gather and the and John Rutledge of South Carolina. All talk turns to the Constitution and had helped establish the Constitution. thk !nen who made it the law we live by. one But only three of the Judges had reached n.. inevitably enters the conversation: New York. a temporary capital city, in 1790, John Marshall of Virginia. when the Court convened for the first time. "My gift of John Marshall to the people Required by law to sit twice a year. it began of the United States was the proudest act ofits first term with a crowded courtroom and my life." said John Adams. the second Pres- an empty docket. Appeals from lower tri- ident. years after hie left office. bunals came slowly: for its first three years Adams not only chose Marshall for Chiefthe Court had almost no business at all. Justice in 180 I. he forced a reluctant Senate Spectators at early sessions admired "the to confirm the appointment. He had every elegance, gravity and neatness" of Justices' right to he proud. robes. But when Cushing walked along New Marshall asserted the Court's mightiest York streets in the full-bottom professional power and dignity in its first great crisis. His wig of an English judge. little boys trailed decisions set the course for a bold venture after him and a sailor called, "My eye! What a new republic's voyage to greatness a wig!" Cushing never wore it again. among the nations of the world. Those de- In 1791, the Court joined Congress and cisions. and many that followed, mirror thethe President at Philadelphia: it heard dis- history of the Supreme Court and. indeed.cussions of lawyers' qualifications, but little of the Republic itself. At the Court today else. Still. other duties exhausted the Justic- Justices and others still speak of Marshall es. The Judiciary Act of 1789 required them as the "great Chief.- to journey twice a year to distant parts of The Constitution called for a Supremethe country and preside over circuit courts. Court and a federal judiciary. but leftit For decades they would grumble. and hope to Congress to spell out the details. Con-Congress would change this system: but gress did so in the Judiciary Act of 1789. Congress meant to keep them aware of Connecticut's Oliver Ellsworthlater to local opinion and state law. serve four years as Chief Justiceled the Stagecoaches jolted the Justices from city drafting in committee. Thi law created 13 to city. Sometimes they spent 19 hours a district courts, with one judge apiece. and day on the road. North of Boston and in the three circuit courts, eastern, middle, south- South, roads turned into trails. Justice Ire- ern. Ahuve these it set the Supreme Court.dell, struggling around the Carolinas and with a Chief Justice and five Associates.Georgia on circuit. and hurrying to Phila- For thefirstChief Justice. Presidentdelphia twice a year as well, led the life of a Washington picked John Jay. New York-traveling posthoy. Finding his duties "in a born statesman and diplomat. The Presi-degree intolerable.- Jay almost r ned. dent weighed sectional jealousies and per- Congress relented a little in 1793: one cir- sonal ability in selecting Associate Justices cuit trip a year would be enough. John Blair of Virginia. William Cyshing Sensitive issues appeared in some of the of Massachusetts. James Wilson of ' nn- Court's first cases. Its decision in Chisholm

FIIMT OIFFICIAL RECORD ofthe Court iontaint an error in thelirft bt- --the word -Judie .4utliortie% thini. the (Ifni.. fa ifivisa,hufett% man. intertd it hecitufe the highett trihunal in hi %lute- Hat the "Supreme Judicial Court.' The National .4rchices. cuttodian vtii4.1 pollen. hat lent this API times!tit the CourtJi,r puhlir &whit. 1,.t. t '` , 15 v. Georgia shocked the country. During the Revolution. Georgia had seized property from men loyal to the Crown. With a pre- Revolution claim on such an estate, two South Carolinians asked the Court to hear their suit against Georgia. It agreed, saying the Constitution gave it power to try such cases. But when the day for argument came in 1793. Georgia's lawyers did not appear. The Court gave its decision anyway, in favor of the South Carolinians. Georgia raged: other states took alarm. They were trying to untangle finances still snarled from the war. If they had to pay old debts to "Tories" they might be ruined. They adopted the Eleventh Amendment. forbidding any federal court to try a law- suit against a state by citizens of some other state. Thus the people overruled the Su- FIRST CHIEF JUSTICE,John Jay opened preme Court for the" first time, and estab- the initial session of the Supreme Court lished a far-reaching precedent of their own. on February 1, 1790. President George They would give the ultimate decision on Washington had named the 43-year-old constitutional disputes. New York lawyer to head the highest War between Britain and France brought tribunal in the land after Congress had two more t -sic precedents. President Wash- set the number of Justices at six in 1789. ington was working desperately to keep the -He was remarkable for strong United States neutral and safe; he sent the reasoning powers, comprehensive views. Court 29 questions on international law indefatigable application, and uncommon and treaties, and begged for advice. The firmness of mind.- said one of Jay's Justices politely but flatly refused to help. friends. The Federalist statesman set Under the Constitution, they said, they lasting standards of judicial excellence could not share executive powers and du- during five years of service as Chief ties. or issue advisory opinions. Justice. Jay's Court established an all- To this day, the Supreme Court will not important precedent by refusing to advise give advice; it speaks only on the specific the President on matters of taw; to this cases that come before it. day, the Court speaks only on specific But by its decision in Glass v. Sloop cases that come before it for review. Betsy, in 1794. the Court did defend neutral At Washington's request. Jay. still rights and national dignity. Chief Justice, embarked upon a famous Defying the President's neutrality proc- diplomatic mission to Great Britain in lamation, French privateers were bringing 1794 to settle quarrels over British captured ships into American ports. There troops in the Northwest and private French consuls decided if the ships were to debts to British creditors. The treaty be kept as lawful prize. that Jay negotiated preserved the peace Betsy, Swedish-owned, had American when war might well have destroyed the cargo aboard when the French raider Citi- new Nation. zen Genet caught her at sea and took her to Jay resigned as Chief Justice in 1705 Baltimore. Alexander S. Glass, owner of a and became Governor of New York, serving share of the cargo. filed suit for his goods. for two terms. His tenure on the bench but the district court in Maryland ruled that launched a tratfitton of high-minded it could not even hear such cases. dignity that continues to distinguish With the prestige of the country at stake. the Supreme Court. the government quickly appealed to the ei lid POI ItIA%1-111 R, / t reading. AdjouN:.:cl. ),,r4 ( it\ 110115,.11h,Ili %, Pit, et IPIL: rrl Ihr \t/p', n1,( 111511, tit Ilhcr,Iff'd On fii7I'lt.:-NIE COUIZT Of till 1.1.nitcd Statel, lit, se .,P 4:1i"1hr ty A Ihr1. L PI tide 1:rowt,1 Ihror. p :It. to " "" "NO 4 ," re 1(r.11 pip:a liiter .tilorilm the flutiewi:s.adjumned SIP. I%iPill I1,11,1Pf:: 01,III*1 t, rf?) t.:1 01:5 lily oneelt..:k. plc I fol. 11 11 .sint1 rte., ,irt,1 Chief julticeof 4o-,1 1,01\ Or,h,1r. hill limt. If, W41 l'o1 is, 'ft rtit 5, "Ion% lit'tt' Call:' ' am1 The 1-ion. Jamul Militant (,'n! PI I,,r11 cried IP! zIppcoredc-1 the bmich. 1 IP, 'fill! (Alm ! Ci Tu.. C. at 'Ii,' 1!.eildriy.,..!

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.45515 federalcourts would decide American thought it too favorable to Britain. Feeling claims, the Justices ruled. Europe heard this still ran high in 1796 as the Court reviewed decision: and the United States became, as the case ofWore v. Hylton.Many British Washington hoped. -more respectable." subjects had claims against Americans from contracts made before the Revolution; some OLD DEBTS AND GRUDGES were states had canceled these by law, but treaty troubling relations between the United provisions required 'heir payment. States and Great Britain. President Wash- In his only argument before the Supreme ington sent Chief Justice Jay to London as Court, John Marshall defended a Virginia a special minister to settle the quarrels, and law abolishing payments to British credi- Jay negotiated a treaty. When he returned tors: he lost. A treaty of the United States New York elected him Governor. and he must override the law of any state, ruled the resigned from the Court. Justices. When the Nation pledges its word, To succeed him Washington chose John it must keep faithand the Nation speaks Rutledge: the Senate rejected the nomi- with one voice, not with 13. n3t with 50. nation. Patrick Henry. low an old man, But two raucous choruses were shouting declined to serve. ant; Oliver Ellsworth abuse at each other when the Court met at became Chief Justice. Philadelphia for the last time, in August,

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-4 !1- 1800. The government was moving to a they had nothing but distrust for Britain. new site by the Potomac, where no one had During John Adams's term as President, even planned a judiciary building. In 1801 the French insulted the administration from Congress loaned the Court a little ground- abroad and the Republicans criticized it at floor room it:the unfinished Capitol;it home. Federalists had run the new govern- crowded the Justices for seven years. ment from the first. They feared attacks Caanging capitals was easier than chang- on themselves as attacks on the new Consti- ing the government. With vast excitement, tution. Hearing French accents in every the people were tussling with an issue the critical sentence, they passed the Sedition Constitution ignored; painfully. nervously, Act of 1798. they were working out a two-party system. This law endangered anyone who spread Against the Federalists, "the good, the "false, scandalous and malicious" words wise, and the rich," the party of Washington against the government or its officers, to and Adams, stood the admirers of Vice "bring them . .. into contempt or disrepute." President Thomas Jefferson"the Man of It would expire with Adams's term of office the People." Calling themselves Republi- on March 3, 1801. cans, the Jeffersonians wanted to give the "Finding fault with men in office was people more of a voice in government: they already an old American custom," writes praised the ideals of the French Revolution, one historian; "indeed, it had become an

FRENCH FRIGATEL'Embuscade sails past the Battery of New York City in this contemporary engraving. During President Washington's Administration, French raiders roamed off American coasts, seized merchant ships, and took them into port for French consul!: decide if they were laitful prize. This practice defied the authorio! of the United States and its right to maintain neutrality in the war between France and Britain. When the French privateer Citizen Genet (below left) captured a Swedish ship with American cargo, a federal district judge held that his court had no jur!sdiction in the matter. By its 1794 decision in the case Glass v. Sloop Betsy, the Supreme Court declared that American courts would decide all cases within the American domain.

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essential part of the pursuit of happiness.' Supreme Court Justices presided at trial! on circuit and sent Republican journalist! to jail for sedition. But the Republicans kep on eriitciiing. and shouting "Tyranny!' I he Federalists answered with furious crie! ofI reason!.. In the ISM) elections the "I tick Jaw Federalists were routed"Nlad Tom" Jef Person would he President. his follower, would control ( -tmgress.

iloomth. theFederalists hopedt ha judges could sae the Constitution Iron these "radicals." Chief Justice Fllswort1 was ailing. he resigned. Ja refused to serv gam. So Adams ge his Secretary of State 11 =--

rm. ,,p94 «AGM/ S5 ,1001,1 IIMD UPPER ,.,. dl, to the Supreme Court. In e lame-duck Federalists passed ice the C'ourt's membership to Justice for a Republican Pres- 0). Abolishing circuit duties for and providing other reforms, up new circuit courts with 16 his quickly made his appoint- amous "midnight judges." ,ne Republican from Ksmtucky s's tacticsthe last effort of the insidious and turbulent faction ,graced our political annals." ,Ink his oath of office on March hout precedents and with pas- high. the Presidency and the Congress passed for the first timefrom one party to another. And somecitizens were afraid th;.,t. the judiciary was in mortaldanger. Soon after his Inauguration.Jefferson wrote that the Federalists had "retreatedinto the judici- ary as a stronghold.the tenure of which renders it difficult to dislodge them." But the Republicans repealedthe lame-duck Judiciary Act. while horrified Federalistslament- ed.the Constitution has received awound it cannot long survive." andthe angels of destruc- tion ... are making haste." Meanwhile. William Marbury ofWashington went straight to the SupremeCourt. looking for a commission as justice of the peace forthe Dis- trict of Columbia. Adams hadappointed 42 such officials. the Senate franticallyconfirmed them. and Adams sat at his desk untillate on his last night in office to sign theircommissions. Then a messenger rushed the papers tothe State Depart-

..HILLS, VALLEYS,morasses and waters said Thomas Jefferson of the site chosen for Washington, here depicted in 1800. Stone bridge (center) spans Rock Creek near Georgetown tleTh. In background atright rises Jenkins Hilt where the Capitol standstoday. The .Senate and the !louse shared theold Mirth Wing I below). first structure of theCapitol, with the Supreme Court. Ilere the JUAtieA met invarious rooms front 1801 until1935. During the early years when constructiondisplaced the Judges. they had to meet in nearby homes.

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I'M \Lit still ak.1111g .ts Secretary. him. If' the Court denied Marbury's right to h. the gi eat seal of the I 'lined States. his commission. Jefferson could claim a c Lontihaon some of the commissions party victory. Either way. the Court's pres- mulch ei ed. Marbury 's among them. tigeand perhaps its membersmust fall. I )et:e in he I 1801, Marbury applied to Marshall found an escape From this di- milt rot a writ tif 111,11nlarrIlls ordering lemma. He announced the decision on Feb- s \Lutist'''. the new Secretary of State. ruary 24. and proclaimed the most distinc- ehinthisL'ollilltissitm.I he Court tive power of the Supreme Court. the power d to hear the casea hold action, for to declare an Act of Congress unconstitu- rtA;tssa%int.:. the Justices "must fall- tional. Point by point he analyied the case. rnpeachment I hentheRepublican Did Marburg have it legal right to his com- re passed a law ,topping the ( ourt's mission? Ye.. Would a w tit of mandamus m, for14 monthsanother threat. enforce his right'.' Yes. Could the Court the Justices finally sat again in I802, issue the w rit? No. heard argument in Marburv's ongre,s had said it could. in theiudiciary he ( mitt ordered Madison to produce Act of 1 789. It had given the Court an origi- onmussion. he could simply ignore the nal jurisdiction in such casespower to try

. Pit:suit:1uJefferson would defend them for the first time. liut. said Marshall triumphantly, the Constitution defined the Court's original jurisdiction and Congress could not change it by law. Therefore that se.,:tion of the law was void. The Court had issued such writs before, but Marshall ignored the fact. Hedeclared for all time the supremacy of theConstitu- tion over any conflicting law. Other judges had said as much, but Marshall added: "It is, emphatically, the province and duty of the judicial department, to say what the law is." In renouncing a minor jurisdiction he as- serted a great one, perhaps the greatest in the long annals of the law. The Supreme Court's power as interpreter of the Consti- tution rests on this precedent to this day. A few days after the decision in Marbury v. Madison, the Courtamazed the Jeffer- sonians again. They had passed a Judiciary Act of their own, restoring theCourt's old membership and circuit duties. The Justices ruled that it was constitutional, andfor a while talk of impeachment died down.

0Y EZ! OYEZ! OYEZ! ...the grand inquest of the nation is ex hibiting'to the Senate ... articles of impeachmentagainst Samuel Chase, Associate Justice...."The Supreme Court was on trial; if Chase fell, Marshall might be next. Feared as a "ringleader of mobs, afoul mouthed and inflaming son of discord" when he led the Sons of Liberty in 1765, Chase "was forever getting into some ... unnecessary squabble" as aJudge 40 years later. He campaigned openly for Adams. On circuit he tried Republicanswithout mercy. In 1803 he told aBaltimore grand jury that "modern doctrines" of"equal liberty and equal rights" were sinkingthe he pr Constitution "into a mobocracy, the worst were of all popular governments." deed His enemies saw their chance. The House high of Representatives voted to bringhim he- that fore the Senate for trial. charging thathis Re partisan behaviorin and out of court noke amounted to "high ('rimes and Misdemean- to pr ors" tinder the Constitution. Mart Vice President Aaron Burr had arranged law a special gallery for ladieswhen the "grand ney inquest" opened on February 4. 1805.Burr shall had killed Alexander Hamilton in aduel At and New Jersey wanted him formurder; but and t 26 25 "III. Ill %I A 111.4, ..pftsN SS 11,1I MUNI theil sit Iht Pt tibt /11 Si,t Si,I., lee,ee IN eeteb rN ( Iqu7 1,1t SW tillti 1,1t shit di rot,' rife WItit ptit fttt, I,,, ,ItIt101:1151": OttIP.stt I,ti hh II priii laim% theimperial poIlVer1 III the 'e ..I h1111 %/at% hall. if/1,#144444.11 leg' flat porton! 04 "flit 4a ( .1ala lairtell the hIrl I ill% II.{:11 pre4 /i1:4' (44

4. !la 14 1111% (1414 helped mold the I hams II? , 1'1011% Chase on MarchI. Jefferson called im-anyway. since "our jurisdiction is so vast peachment of Justices "a farce which willthat it must be raining somewhere." not be tried again." and he was right. Congress expanded that domain in 1807, For all his differences with the Republi-creating a new circuit for Kentucky, Ten- cans. John Marshall was no son of discord. nessee, and Ohio. and adding a seat to the Born in a log cabin near Germantown. Vir-Court. Jefferson appointed Thomas Todd, ginia. in 1755. he grew up near the frontier.who had helped create the State of Kentucky with some tutoring for an education. Heout of his native Virginia. fought as an officer in the Revolution. al- most freezing at Valley Forge. I FE IN WASHINGTON went on peace- After the war he practiced law, and be-1-4 fully for months during the War of 1812. came the leading Federalist of his state. As"Mrs. Madison and a train of ladies" visited a young attorney and an aging Chief Justice.the Supreme Court one day in early 1814, he was sloppily dressed and wonderfully in-just as William Pinkney of Maryland, one of forms'it of court. fond of spending hours the country's most celebrated lawyers. was with friends in taverns, law offices, andending an argument: "he recommenced, drawing rooms. Even in his sixties. Mar-went over the same ground, using fewer shall was still one of the best quoits playersarguments, but scattering more flowers." in Virginia. Rudely interrupting such diversions, the When the Court met in Washington. theBritish arrived in August and burned the Justices stayed in a boardinghousethe trSpCapitol. Congress found shelter in the make- was too long, the session too short for theirshift "Brick Capitol" where the Supreme wives to accompany themand Marshall'sCourt Building stands today. geniality brightened their off-duty hours. The Court. forced to shift for itself, met Justice Joseph Story handed down a tale for a while in a house on Pennsylvania Ave- still told at the Court. On rainy days thenue. Then it got temporary space in the Judges would enliventheir conferences Capitol. In I 819 it returned to its own semi- with wine: on other days Marshall might circular room below the Senate Chamber. say. -Brother Story. step to the window and "A stranger might traverse the dark ave- see if it doesn't look like rain." If the sunnues of the Capitol for a week." reported a was shining. N1arshall would order wine visitor from New York. "without finding the

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.1111.14,14,1,I. OfI 1144.1, 9 29 remote corner in which Justice is adminis- tered to the American Republic...." Strangers traversing the Republic had other troubles. "I passed away my 20- dollar note of the rotten bank of Harmony. Pennsylvania. for five dollars only." a dis- gusted traveler complained at Vincennes. Indiana. State-chartered banks, private banks, towns, sawmills, counterfeitersall issued notes freely. -Engravings." a Scots- man called them: no law required anyone to accept them at face value as legal tender. Everyone suffered from this chaos. Congress had chartered the second Bank of the United States in 1816 to establish a sound national currency. to issue notes it would redeem in gold or silver. By law, the government owned a fifth of the Bank's stock and ..med a fifth of its directors: pri- vate investors had the rest. Unscrupulous characters got control of the Bank and mis- managed its affairs. In the South and West. where "engrav- ings" flourished, the Bank's branches made bad loans until the home office at Philadel- phia issued new orders in August, 1818: Call in those loans. don't accept any pay- ments but gold and silver or our own notes. Panic spread. Local banks demanded pay- ment on their own loans, and refused to ex- tend credit: people scrambled for money they couldn't find: land went for a song at sheriffs' auctions: shops closed: men who lost their last five dollars said bitterly. "the Bank's saved and the people are ruined." State legislators decided to drive the Bank's branches out of their domain. Mary- land passed a tax law giving the Baltimore

JUDGE ON TRIAL: .S.timue/ Chow (seated in fOreground) hears Representative John Rumhilph of Virginia accuse him o/ -high Crimes and Misdemeanors.- The House impeached Chase. an outspoken Federalist. in /805. after he used the bench o/ a circuit court to de .e Je9er.%onian ideals of "equal rights." When the .Senate acquitted Chase. Republicans gave up the idea of removing Federalist judges h'. .such proceedings. C011gICA.% has /WITT used iteon.stitut ii ttttt powers o/ impeachment against any taller Justice u/. the .Supreme Court. s 1001, /1141 M111. VA, . 30 31 branch its choice: pay up handsomely or peacefully." Because the Union is "em- give up and leave. The branch ignored it. phatically, and truly, a government of the Maryland sued the cashier, James McCul- people." it must prevail over the states. To loch, and won in its own courts. McCullochspecific powers of Congress, the Constitu- took his casethat is. the Bank'sto the tion adds power to make all laws "necessary Supreme Court. where argument began onand proper" for carrying them into effect. February 22. I 81 9. Marshall invoked "letter and spirit" to Splendid in his blue coat with big brass give that clause its meaning: "Let the end buttons. Daniel Webster spoke for the Bank be legitimate, let it be within the scope of Congress has power to charter it: Mary- the constitution," and Congress may use land has no power to tax it. for the power to "all means which are appropriate ... which tax involves a power to destroy: and never. are not prohibited." So the Bank was con- under the Constitution. may the states tax stitutional: no state might tax it. Maryland's the Union into destruction. law was "unconstitutional and void." LutherMartin.Maryland'sAttorney The Court's ruling settled the conflict General. argued for his state. Where does of law but not the political fight over the the Constitution say Congress has power to Bank's power and states' rights. Virginia's create a national bank? he asked. Nowhere! legislature made a "most solemn protest" he thundered. It lists specific powers. and against the decision in McCulloch v. Mar - making banks is not one of them. Mr. Web- land: Ohio officials took money by force ster says it implies such a power. Nonsense! from one Bank branch. Not until President For the Court, Marshall defined the con-Andrew Jackson vetoed the Bank's rechar- troversy:"a sovereign state denies theter did that controversy die down. obligation, of a law ... of the Union." An States' rights against the powers of the "awful" question. but "it must he decidedUnionthe issue became more explosive

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33 BITTER PARTNERS:Aaron Ogden (left) sued Thomas Gibbons over steamboat shipping rights in New York's harbor (below), claiming exclusive rights under state law. But Gibbons insisted that an Act of Congress permitted his steamboats to enter: and the Supreme Court ruled in his favor. Former Justice Arthur Goldberg hus said: "In Gibbons v. Ogden, Marshall gave the classic interpretation of the Constitution's commerce clause, which made the United States a common market."

K HISTORICAL SOCIETY (UPPER LIFTI, COU TEST WILLIAM L. HOPKINS,14. (UPPI

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-DEVIL IN ASAWMILL'. cried one startled rustic as Fulton's steamboat plied the Hudson River.

Missouri's proposed constitution and states' rights in general. Now what had been a trivial criminal case took on political importance at a time of major crisis. Appearing for the Cohens were two of the country's most famous attorneys. David B. Ogden and William Pinkney. Ogden flatly denied the sovereignty of any state. Pinkney asserted that if any case involves federal law. federal courts must give the final decision. or the Union is "a delusion and a mockery!" Congress adopted a new compromise on statehood for Missouri: and Marshall gave an uncompromising ruling on Cohens v. Virginia. The Court would hear the case: it existed to resolve such "clashings" of state and Union power. to keep the national government from becoming "a mere shadow." Insisting on the power of his Court. the Chief Justice boldly met the 4 threat of secession and the claims of state sovereignty: he upheld the Union as the supreme government of the whole American people. Then the Court heard argument on the merits of the case. and affirmed the sentence of the Norfolk court. The Cohens lost S 100their fineand costs.

SOUTHERNERS FUMED at Marshall's stand in the Cohens' case. But in 1824. for once. a Marshall ruling met popular acclaim. Huzzas from the wharves greeted the steamboat United States as she chuffed tri- umphantly into New York harbor, her crew firing a salute, her passengers "exulting in the decision of the United States Supreme Court.- That case was Gib- bons v. Ogden. Robert Fulton successfully demonstrated a steam- powered vessel on the Seine at Paris in 1803. With his . 37 "INTEREST OF THE PUBLIC must ...always be regarded as the main object" of charters, said Roger B. Taney. As Chief Justice he wrote this view into law in settling a controversy over two bridges at Boston. Proprietors of the Charles River toll bridge (right), under state charter, claimed Massachusetts could not let another company open a competing bridge nearby. In this clash of private rights and CAUSEWAY OF CONTROVERSY:Charles state powers, a new voice at the River Bridge in 1789 ran from the find of Supreme Court spoke fiv the Prince Street in Boston (filreground) to old community. In 1835, President Andrew Jackson had na Taney, his former Attorney General, to partner, Robert R. Livingston, he held an succeed Marshall as Chief Justice. exclusive right from New York's legislature including Taney lacked ornate eloquence, to run steamboats on state waters, but his hollow. Ims voice and earnest New York harbor and the Hudson River. In delivery added clarity and 1 807 their steamer splashed up the Hudson into their persuasiveness to his statements. to Albany: soon money flowed His defiant stand on citizens' pockets. Anyone else who wanted to run rights during the Civil War brought steamboats on those waters had to pay them him public scorn. for the privilege: some Albany men attacked In the bridge case, his first the monopoly in state courts, and lost. important opinion, Taney ruled In 18.11 the territorial legislature in New that the state had power to Orleans gave the partners a monopoly on approve construction of the much- the Nlississippi. Now they controlled the needed Warren Bridge to serve two greatest ports in the country. at law allowing its the people. This decision (Charles New Jersey passed River Bridge v. Warren Bridge) citizens to seize steamboats owned by New spanned a gap between established Yorkers: other states enacted monopolies property rights and changing needs. and countermeasures untilthe innocent 378 1- 7

NEW ',ORB PUBLIC LI (LEFT, AND GOODSPEED'S BOOK SHOP Charlestown, Massachusetts. The bridge. Despite predictions that strong tidal then considered a remarkable engineering currents or floating ice `could collapse feat, stretched 1,503 fret on 75 oak piers. the span, it stood more than a century. side-wheeler was turning into a battleship.ruary 4. 1824: Ogden's attorneys quoted Meanwhile three men of property went established law and precedents for two days. into business. then into rages. then into But Marshall avoided shoals of precedents court. Robert Livingston's brother Johnand veering winds of state laws to set his bought rights in New York bay: then he sub-course by the Constitutionthe clause giv- let his waters to former Governor Aaron ing Congress power to regulate commerce Ogden of New Jersey. a quarrelsome law- among the states. For the first time the Court yer. Ogden took a partner. Thomas Gib- defined these words: in them Marshall found bons. equally stubborn and hot-tempered. vast new currents of national strength. Soon these three were suing one another in More than buying and selling, he pro- New York courts. claimed. commerce is intercourse among Under an old Act of Congress. Gibbons nations and states: it includes navigation. had licensed two steamboats for the national For all this rich activity Congress may make coasting trade. and now he invoked this rules: if its rules collide with state restric- federal law to get a suit against Ogden be- tions the latter must sink. New York's law fore the Supreme Court. went down before an Act of Congress. i :`dies crowded lawyers to hear the case. State monopolies could not scuttle ships Daniel Wt-iy.:er spoke for Gibbons on Feb- "propelled by the agency of fire." Steam- 38 39 '11111111k, '-'-r

boats would be as free as vessels "wafted on their voyage by the winds." With monopolies swept away, steamboat trade spread fast and freely. Soon, by that precedent, steam cars on rails spread across state lines, across the continent. Marshall watched, as changes came and went. "We must never forget," he had said, "that it is a constitution we are expounding .... aconstitution, intended to endure for ages to come, and consequently, to be adapt- -. ed to the various crises of human affairs." -Cs:7 - - ...- ::::ft."::'`,..N. His actions made his words unforgettable. tom_ ` ar .= ....2 When Marshall gave the Presidential oath to his cousin Thomas Jefferson in 1801, the Supreme Court was a fortress under attack. It had become a shrine when he gave the oath to Andrew Jackson in 1829. New crises arose during Jackson's Ad- ministration. Marshall carried on his work, concerned for the country's future but not for his failing health. Jay had resigned after five years, Ellsworth after four: Marshall served from 1801 until his death in 1835. When he took the judicial oath the public f*, hardly noticed: when he died the Nation mourned him. "There was something irre- sistibly winning about him," said the Rich- mond Enquirer. And Niles' Register, which had long denounced his decisions, said, "Next to WASHINGTON, only, did he possess the reverence and homage of the heart of the American people." 40 9 BLOODSHED IN THE SENATE:South About Marshall's successor, a New York Carolina Representative Preston Brooks journal sputtered: "The pure ermine of the flails Senator Charles Sumner of Mas- Supreme Court is sullied by the appointment sachusetts after Sumner has unleashed of that political hack, Roger B. Taney." an antislavery speech insulting Brooks's Daniel Webster confided, "Judge Story.... cousin, Senator Andrew Pickens Butler of thinks the Supreme Court is gone, and I South Carolina. The attack echoed a crisis think so too." The Senate debated the nom- in /856: Would Kansas vote to be a free ination for almost three months. or slave state? Although the Supreme Born in Maryland in 1777, Taney attend- Court tried to resolve the slavery issue, ed Dickinson College, read law, and plunged passions exploded into civil war. into Federalist politics. While other lawyers took pride in oratory, he spoke simply in low tones that convinced juries. Invoking freedom of speech, Taney won "WHIRLWIND OF MURDER,"wrote poet acquittal in 1819 for a Methodist preacher John Greenleaf Whittier of the Marais des whose sermon on national sins provoked Cygnes massacre. Near the Kansas border, the charge of trying to stir up slave rebellion. proslavery riders shoot settlers who would Suspicious of the Bank of the United vote for a free state in a fair election.

NEW YORK IWOLIC LI RUT) 140 "BEYOND ENE MISSISSIPPI." LIBRARY Or CONGRESS

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"ATROCIOUS DECISION"cries a poster in Philadelphia. where abohuonists shouted th;?' rage and disgust over the mai-mile of the .S'uprenrc (,sin's most famous case Dred Scott v. Sandfor(I). '1:'1e Dred Scott sued for his liberty, insisting that a sojourn on free toil in Illinois and Wisconsin Territory entitled him to he free. In 1857. the Supreme Court rejected his claim. Chief .;astii.e Taney said no Negro imild he a citizen with constitutional rights to bring suit. his opinion wounded the Court's prestige in the North. jOr it insisted that Congress had no power to limit the espansi aaa of slavery. Northern papers bristled pith moral indignation; said one editorial, It the people obey this decision. they disobey God.-

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WISPY AND BENT,Chief Justice Taney administers the Presidential oath of office to James Buchanan in /857. In his Inaugural Address, Buchanan said the question of territorial slavery would be speedily and finally settled.' by the Supreme Court. Instead, Taney's 'Wing on Scott only sped the Civil War.

"HEAP 0.TROUBLE,"said Scott of his decade-long lawsuit. After the Supreme Court denied Scott free- dom, his owner released him from bondage. News paper pictures him with wife and daughters. timing Missouri citizenship. Scott sued ord for his freedom in the federal court Louis. Sanford's lawyers argued that could not be a citizen because he was 'e and a Negro. The court ruled against May 15. 1854. ngress passed the Kansas-Nebraska wo weeks later, opening more of the to slavery by repealing the Missouri womise line.Furious northerners d its author. Stephen A. Douglas. in . OnJuly 4. abolitionist William Lloyd son publicly burned a copy of the Con - on, crying. "So perish all compromises iyranny.-- hting broke out in Kansas and made xpansion of slavery the issue in the Presidential campaign. won by James inan. The Supreme Court heard argu- in DredSeott v. Sandford in February. reached the end of its term. then heard lent again in December. then the whole country had heard of Scott. "The Court. in trying this case. If on trial:- said the New York Courier. February. 1857. a majority of the Jus- agreed to follow precedent and say le ruling of the highest state court was -that Scott was a slave under state I. 4.1 elwe,04,. .h.,...iMt, W 4404101e04/10. II.. 151V4 OW, a( ow tislid 1000 Om MP Mono*. WWI it N.4r 1... In rt 4416401 hew U. 11(7) Xe. 63..0-VOL. IV.] NEW YORK. SATURDAY. JUNE 27. 1857. Vann I CUM,.

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AMID FLYING STONESand bullets the first Civil War victims fall during a riot in Baltimore in 1861. Southern .sympathizers attacked the 6th Massachusetts Regiment. killing tits soldiers. Loyal Unionists (left) guarded the office of the city's pr,tvost marshal against the mob. The military (arrested citi::ens suspected of dishayalt, rebellion, or treason including John Merrynum. a prominent figure in Baltimore. in Merryman's behalf Chief Justice Taney sent Lincoln a sharp official protest denying that the President had constitutional power au, suspend the protection of law, especially the writ of habeas corpus, in any emergency whatsoever. , .L 411110V"'

was 1858: Lincoln was ci A. Douglas for a Senate s ing the Supreme Court's Douglas defended the Scott's case as the pronc highest tribunal on earth:. objections to it. "From the no appeal this side of H One decision settles c Lincoln: it does not even less the future of the cou Douglas won the Senat lost the race for the Pr( Republicans came to pol Chief Justice Taney adn of office to Lincoln. Ma heard him disclaim "any Court." But Lincoln war the policy of the Goverr questions affecting the w be irrevocably fixed by Supreme Court, the instal inordinarylitigation... have ceased to be their a That day the first twine ate States of America fle house at Montgomery. Al Secession divided the Justice John A. Campb

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lenging S: ephen disunion wrong, resigned and went sad and challeng-home to Alabama. Justice James Moo ling on slavery. Wayne of Georgia. last survivor of Ma :cision in Dred shall's Court. remained: until his death cement of "the 1867. he voted to sustain all the war mea spice of his own ures the Court passed judgment on. lecision there is Justice John Catron, over 70. hurried yen," he cried. to uphold the laws of the United States ( case, retorted his secessionist circuit. Tennessee had ma( tle the law, still a military pact with the Confederacy win y. he got to Nashville. Dodging rebel force eat: in 1860 he he reached St. Louis and held court ther Jency, and the When he returned to Nashville a citizen r with Lincoln. committee drove him out of his home. istered the oath In Maryland. part of Taney's circui 4, 1861. and many favored the Union. some the Sout ,sault upon the Washington's only railroad to the north ra I solemnly: "if through Baltimore. where an angry crow ent, upon vital mobbed troops hurrying to defend the cal e people. is to ital. Lincoln told the Army to suspend U !visions of the writ of habeas corpus and establish marti they are made. rule. if necessary, to keep Maryland sal e people will The military jailed citizens on mere su rulers picion: troops arrested John Merryman II rthe Confeder- taking part in the Baltimore riot and blov over the state- ing up railroad bridges. Locked up in Fo ama. McHenry. he applied for a writ of habea ipreme Court. corpusa court order for proof that a pri: who thought oner is lawfully confined. FAM( Dune the A south

GUNS BLAZING,Union ships (above) chase a southern (below prepares to fire a warning shot across the bow Lincoln had blockaded southern ports. Owners of captt that the Union sea harrier was unlattfid. brought suit to that until Congress voted a declaration of war. Lincoln a bloc( ade. But in the Prize Cases, the Supreme Court had to fight the war, it said, "without waiting for Conga

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".." . V .110VIFIroOPPU ttttt Only in "Rebellion or Invasion" when Resignation and death left three seats "the public safety may require it" may the vacant at the Supreme Court. Lincoln ap- privilege of habeas corpus be suspended, pointed Noah H. Swayne of Ohio, Samuel says the Constitution. F. Miller of Iowa, and his old friend from Hurrying toBaltimore, Chief Justice Illinois, David Davis. But no one knew Taney issued a writ to Gen. George Cad- what the Court would do when it heard the walader: Bring Merryman to court and ex- Prize Cases in 1863. plain his arrest. The general sent a letter Before calling Congress into special ses- he had to consult the President. Taney or- sion, Lincoln had authorized martial rule in dered a marshal to seize the general; but a Maryland, called for volunteers, pledged sentry barred the marshal from Fort Mc- government credit for huge sums, and pro- Henry. The Chief Justice challenged the claimed a blockade of southern ports. To President's right to take legislative and meet the crisis of war, the President swept judicial power, calling on him to uphold the into the realm of legislative power like an law and the courts. invading general.Four merchant ships, Lincoln did not reply; Congress upheld seized under Lincoln's blockade orders and him. But when the emergency had passed, condemned as prize, carried his measures the government quietly brought Merryman's before the Supreme Court. case to a federal court; later still, it quietly The owners brought suit for the vessels let him go free. and cargo, arguing that war alone warrants

"GUILTY!" ruled this Civil War military commission that tried Lambdin P. Milligan, an Indiana lawyer, for conspiring to overthrow the government of the Union. A civilian, he demanded jury trial in a federal court.

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1.1 INDI NIST011oCAL SOCollY 100VIND floilT) elq a blockade and only Congress may declare Chief Justice Taney died, aged 87, in war: they denied that Lincoln's emergency October. 1864. Lincoln's Attorney General powers had any reality in constitutional law. Edward Bates wrote that his "great error" If the Court upheld the blockade as ain the Dred Scott case should not forever legal war measure. England and France "tarnish his otherwise well earned fame." might recognize the Confederacy: if it did And not long after Taney's death, victory not, the government would have to pay for the Union brought vindication of his huge damages for captured ships, and other defiant stand for the rule of law. war measures would be in question. Either Army authorities had arrested Lambdin decision would endanger the Union. P. Milligan of Indiana, a civilian, tried him Justice Robert C. Grier spoke for him-before a military commission, convicted self. Wayne. and Lincoln's three appointees: him of conspiring to overthrow the govern- The President had to meet the war as "itment, and sentenced him to hang. With presented itself, without waiting for Con- Milligan's petition for a writ of habeas cor- gress to baptize it with a name": and rebel- pus, the Supreme Court considered the lion did not make the South a sovereign na-problem of military power over civilians. tion. Four dissenters said the conflict was the During "thelate wicked Rebellion," President's "personal war" until Congress Lincoln had authorized such military tri- recognized the insurrection onJuly 13. 1861. bunals. But, said the Justices, the federal But the prairie lawyer had won his case.courts in Indiana were always open to try

In 1866, the Supreme Court (Ex parte Milligan) held that no military tribunal could try civilians where federal courts were "open and ready to try them" because the Constitution protects "all classes of men. at all times, and under all circumstances."

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TREACHEROUS COPPERHEADS,members of a northern political faction that sought Civil War peace at any price, threaten the Union in this 1863 cartoon from Harper's Weekly. A southern sympa- thizer, Milligan plotted with other Copperheads to raid state and U. S. arsenals for a supply of weapons, free captured Confederate soldiers from northern prison camps, arm them, and send them back to fight for the South again.

- LAST SUPREME COURT CHAMBERin the Capitol receives a famous advocate, retired Justice Stanley Reed, who in /965 shows his grandchildren, Walter and Harriet Reed, where the Court met from 1860 to 1935. "1 was admitted to practice before the Supreme Court on April 4, /924," he recalls. "The first important case 1 argued for the government as Solicitor General was here in this room." As do all Solicitors General, he performed the duty of deciding which lower court decisions the government would appeal to the Court, what legal stand the government would adopt, and who would argue for the U.S. Reed joined the Court as an Associate Justice in 1938, and served until 1957. Below, in 1888, Chief Justice Morrison R. Waite presides over a Court session in this same room, the old Senate Chamber, sketched for Harper's Weekly.

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cases like Milligan's. Therefore, under the in 1863, and Lincoln appo Constitution, no military courts could try Field of California. To su them; and, however shocking the charges, 1864, he chose Salmon P. the defendants kept their rights under law. Ambitious and able, Cha: At liberty again, Milligan sued the mili- for defending runaway sla tary for false imprisonment, and a jury term in the Senate and two awarded him damagesfive dollars. Ohio when Lincoln named I the Treasury in1861.It HAT a potato hole of a place, this!" finance, Chase grappled w A westem lawyer, seeing the Court's more than $1,000,000 a da first-floor room in the Capitol in1859, radical new tax on income. thought the Justices should be "got up above national banks. But plans ground" for some fresh air and daylight. In notes, the famous "greenba December, 1860, they finally moved to their War or no war. he thought, new courtroom, the old Senate Chamber. forbade such paper money. With 12 rooms for their officials and records, Lincoln sent Chase a n they had more space than ever before. bother himself about the C Congress added a tenth seat to the Court have that sacred instruml

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IMPEACHED PRESIDENTAndrew Johnson faced Radical Republicans' charges of "high Crimes and Misdemeanors" for ordering Edwin M. Stanton dismissed as Secretary of War. Chief Justice Chase (below) swears in Senator Ben Wade as impeachment court member. If Johnson had been convicted, Wade, as President pro tem of the Senate. would have succeeded him us Chief Executive.

"FEAR NOT...to acquit him." urged lawyer Henry Smithery (standing, left) for President Johnson at his impeachment trial in /868. Here Smithery addresses Chief Justice Chase (on dais). As prosecutors. Managers for the house of Representatives sit at I right. Former Associate Justice Benjamin R. Curtis (seated, center of table at left) argued that Johnson had not violated the Tenure of Office Act, which restricted removal of cabinet officers. and that the Act itself was invalid. Johnson escaped conviction by one vote. In 1926 the Supreme Court said the Act had been 5 3 unonsthillionaL L.

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LI OF CONGRESS (UPPER LEFT) AND FRANK LESLIE'S ILLUSTRATED NEWSPAPER tes citizenship Legal Tender Act of 1862 and the Nation's fringements; in money. Justice Wayne had died: when the racial limits on remaining Judges discussed the case they divided four to four, as sharply as the rest came President of the country. Chase was one of those who the number ofopposed the law. If you had promised in Jat long last 1861 to pay a debt in gold. he said, you could tem. not force greenbacks on your creditor: Con- gress could not impair such contracts. ed with carpet- Then Grier, aged and sadl y feeble, changed Klansmen, the his vote so that Chase spoke for a majority. o the splendors Somewhat awkwardly, the Chief Justice Age. Wartimestruck down in 1870 the law he had reluc- debtors likedtantly defended at the Treasury. and Chase and Dissenting. Justice Miller insisted: Con- ter themselvesgress had all the powers it needed to fight a .stitution. war. including power to change the currency, trivate lawsuit. Although the Court's decision applied to :hallenging the contracts made before February 25. 1862. 55 1"'"'Pu.11.4- Mt. r--

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it implied that greenbacks iii!g,ht not be valid packed the for later conwacts. It called in question more liked greent than .)350.0011.000 in greenbacks. The gov- versing itsel ernment fretted. A Boston newspaper pro- After the! tested bitterly against "the country's beingA Ne7o gu mangled and slaughtered. while the Su- to the Suprc preme Court is making experiment uponfuneral. Asii the laws of currency.- a moment of Grier had resigned: (i rant named William Chief Justin Strong and Joseph P. Bradley to the Court. They wanted to hear argument in other legal FOR CHI tender cases: astonished lawyers heard the ate conf Justices argue furiously on the bench about Morrison R. reopening the money question. After hear- spectable.t ing the new cases in1871. the two new Ohio lacked Justices joined the three dissenters of Hep- Marshall or burn to overrule that decision. "1 am gett Strong announced that the Legal Tender Waite wrote Act was constitutional: it helped pay for theington. By I war. it saved the Nation. Bradley. concur-decision in t ring. went further: Under the monetary it thoroughl pov,er. Congress could provide for paper Corn in money even in peacetime emergenciesaprairie fire c view the Court accepted 13 years later. roads were Angry editors charged that Grant had that farmer! II1111--

Ltit 1()0 fine for illegal storage itese laws stood. they argued. perty would be wrecked. stices found all these laws valid. the} thought community rights !i corporation rights. "For us the one of power." said Waite: when perty affects the community. the constitutional power to protect by law. for the common good. Munn & Scott had virtual mo- grainso Illinois could exer- ler to regulate them. ;signed a modest role to the I must assume that a legislature 'acts. they must accept the legis- .he exclusive judge" of when to ory laws and what to say in them. oads contended that only Con- regulate their trade: Waite ruled ongress did. the states were free n their own borders. Fork Herald said: "either the !Id govern the railroads. or the mild govern the people. The Su- 57 preme Court has come to the rescue...."of the Court that decided Munn v. Illinois But Justice Field. dissenting. called the in 1877. only Field survived. decisions "subversive of the rights of pri- When the Court decided its first antitrust vate property." And his dissent would be-case, the government lost its suit against come the majority opinion in later decisions. a company controlling some 98 percent of The railroads had rushed beyond state all sugar refined in the United States. The borders and laws. and Congress took auction. Court conceded that the trust had a mo- It passed the Interstate Commerce Act innopoly on making "a necessary of life" but 1887. the Sherman Anti-Trust Act in 1890. denied that it had a direct effect on inter- Other lawsnational and stateto regulate state commerce. This ruling left the Sher- business and working conditions followed man Act weak, the trusts as strong as ever. as time went by. But time proved that the In another case, the Court seemed to ig- legislatures were not to he the "exclusive nore the needs of labor. Federal judges. judge. The Supreme Court began to set under the Sherman Act, had issued a sweep- new limits on state power, although it did ing injunction against union leaders of the not flatly overrule the Granger decisions. Pullman strike in 1894. Jailed for contempt .I he Court also checked Congressional of court, Eugene V. Delis applied to the power. In 1895. a depression year. critics Supreme Court for a writ of habeas corpus; charged that the Court let property rights the Justices denied it unanimously. govern law. Waite had died. Melville W. In a third case. the Court heard argument huller had succeeded him as Chief Justice; on a new federal income tax law. which took 5x ;. 5 7 WAREHOUSES OF GRA

(;come ahtiVe (lie rhical:o Rii tlunrr ivnored MI 1871 lair that earheil high r and radwav 11 Wink %tale' %lied.I he S'apret (.1Innn v. lllinro Nate power to rev:ditto -alfe reel 'tali a publit

CHAMPION OF FA Granke It (ike% 'irrupt rollout Ilaril-ha by hni opprerred r r,arehoare rater. ha. the Granve to wrorivr and trvht Ili two percent of all incomes over $4,000. Famous lawyers prophesied communism. anarchy. and despotism if the law survived. With one Justice ill, the rest divided four to four on most of the law's provisions. After reargument. a five- to-four vote made the entire law unconstitutional. Bluntly, the dissenters called this decision "the most disastrous blow ever struck at the constitutional power of Congress." "a surrender of the taxing power to the mon- eyed class." John Marshall Harlan (whose grandson of the same name was to serve on the Court in the 20th century) spoke out so sharply that the New York Sun called his "tone and language more appropriate to a stump address." On the stump, William Jennings Bryan said the Court stood with the rich against the poor: other political figures took up the charge. And in 1913 the Sixteenth Amendment made the income tax constitutional after all.

UNDER THE CIVIL RIGHTS ACT of 1875. one of the last Reconstruction laws, Negro citizens brought cases before the Court, protesting their exclusion from a hotel dining room in Topeka. an opera house in New York, the dress circle of a San Francisco theater, the ladies' car on a train. In 1883. eight Justices held the act unconstitu- tional. The Fourteenth Amendment. they said, only gave Congress power over state action: if private citizens dis- criminated among one another. Congress could do nothing about it. Harlan of Kentucky, the Court's only southerner. wrote a fighting 36-page dissent.

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11* 5 8 59 "TREADMILLof uninterrupted work,- said Chief Justice Morrison R. Waite, as the overworked Supreme Court of the 1880's found cases piling up faster than it could hear them. With a four-year backlog on their hands, the Justices welcomed an 1891 law creating the circuit courts of appeals to settle routine lawsuits.

To enforce segregation by color, southern states began passing Jim Crow laws, to re- quire equal but separate passenger cars on trains. Homer Adolph Plessy challenged the Louisiana '-iw in 1892. and took his case to the Supi cme Court. Its opinion cited many state precedents to show the "rea- sonableness" of such laws, and found noth- 4r ing to stamp "the colored race with a badge of inferiority." Harlan dissented again. "Our Constitutioniscolor-blind." he wrote. "In respect of civil rights, all citizens sr are equal before the law." Still, the separate- but-equal doctrine of Plessy v. Ferguson .011A/IP controlled the law for years. C4Se THE SPANISH-AMERICAN WAR ."-""6V:1--:e. gave the United States several heroes, including Col. Theodore Roosevelt: many islands, including Puerto Rico and the Phil- ippines; and one baffling question: Does the Constitution follow the flag? Across the American West. it always had; pioneers took their citizenship with them, and new states joined the Union as equals. he explained, thefacts werediffi These new islandsseparate by ocean, These companies conspired to fix p alien by cultureseemed unfit for self- said.Taft, before they agreed with thei government or statehood. But the Consti--comers in. 3.6 states to deliver shipmei tution said nothing about colonies of subjuct pipe; therefore they were within inte peoples, unequal before the law. commerce and the power of Congress. In the famous "Insular Cases" the Su- fixing restrained trade as surely as pip( preme Court worked out a constitutional tained oil, and Congress had passe status for the new possessions; in effect and Anti-Trust 'Act to release trade. Free by necessity, the Court made law as it went prise. Taft insisted, meant free compel along. Spectacular as the subject was, the When the Supreme Court affirmed Justices were doing the duty of every judge. ruling, other judges had a new precede applying the generalities of law to the de-follow and the Sherman Act a new vii mands of the specific case. Energy personified, Theodore Roo! Cast-ironpipe and constitutional law became President after William McKie bent in the hands of Circuit Judge William assassination, and faced what he calle Howard Taft in 1898, as he carefully dis- "absolutely vital question"whethe tinguished the ease of the Addyston Com- United States Government had the p pany and other pipe manufacturers from the to control the giant corporations of the sugar-trustcase.Inthepresentcase. Money personified. the magnificent

6 0 .) Morgan dominated final Pacific and other railroai dollar U. S. Steel Corporti J. Hill had the Great Ni Harriman. with his Sou Union Pacific routes and dard Oil, had challenged for control of a railroad i After a fight that wrecl ket, the three agreed t( They organized a t..oldinl Jersey corporation calle rides. and leaned Lick t nopoly on transportation Roosevelt ordered the to enforce the Shermtsn A the Supreme Court thei that only New Jersey cot Jersey corporation. that were not within inte;stal federal attorneys filed suit under the Sher- Joseph Lochner had a bakery in Utica, man Act. After 15 months of testimony thatand New York fined him $20 for overwork- filled 2I printed volumes, federal judges ining Frank Couverette. For a second offense, St. Louis ordered the oil trust broken up.he drew $50 in fines or 50 days in jail. His When the Supreme Court reviewed thecase reached the Court in 1905. case, it affirmed the order but altered the States, ruled Justice Rufus W. Peckham, law. Congress. said Chief Justice Edwardmust not pass such laws. "mere meddle- Douglass White. only meant the law tosome interferences" to keep grown men punish "unreasonable" restraint of trade.from taking care of themselves. States have The "rule of reason" became a rule of law.a "police power" to protect the public, but they may not limit such individual rights as UN REASON AB I. E. unnecessary andliberty of contract: A worker must be free to arbitrary," a violation of liberty undermake his own contract with his employer. the Fourteenth Amendmentthus five mem- Justice Harlan dissented, citing evidence bers of the Supreme Court held a New York that bakers suffered eye and lung troubles, law unconstitutional. This law said bakersthat New York might protect their health. must not work more than 10 hours a day orAnd Oliver Wendell Holmes, who had 60 hours a week. joined the Court in 1902, dissented sepa-

ESERVE COLLECTION met Witnight In committee matters.s. tic order some minor seek aallpassed upon New the the f al Of LXVir Cady JIM.CROW not% SITEDSTATEISother: Sur M sicTHE t ()dice resld-trues.° Cot UT the recta. straw:vs and cert eteney Atear sturb- Wilhite theCourt and Statute Leghelatatre gatnst theLoutish's* Enratalt 'sep- Sem andother litaltruattrAtuat 1011111ra of the arate Carafor voted Male prom .f No. DIsteks. meth- Stipreme par' nod- MayIS.Theby Jus- der Washington.In anopinion readconstitution- erns Court todaysustained the requir- way. the at .ndrewtier Mown.the lawIn Louisianato pro- ality of that State cut-attend Jer oflug therailroads of white and Ins w. Judge cars for no inter-yo.ten srIngvide separate There wasthe case "NEXT CAR!" c: conductor directs caseored passengers,feature in Incl. It Is state.commerce which the a Negro family. motioning them eek. railroad upon to easePies- 0111110 theLon the giving rise Louisianatee toa"Colored Only" coach. dent occurredPet gusonKa0t saw e vs. 14operated whollythe. Louisiana's Jim Crow'Lawforbade C31.COSTI. WAS AT the lay..sof l on today State. to Smtes The,11.. blacks to sit tvith whirs my) court.within themany ofthe of 1 h.s gross of that bythe analogyof,.0,tilti ,rang aopinion states and of many trains. Attorney Albion Loargie should of Congtees, of set,-,;rom the laws establishment races h wit,61. (above) argued for limner Adolph statesrequiring of two . fur ,:hlidren statute t rate sc laws. the ttrthk..Pluk, Messy. a Negro who tested the law and other competeney oinf waswithinexereising thecolt e by entering a forbidden c'oac'h. But MU', question Legislature, The judg- ate... \Louisiana of the State.Court of State E the Supreme Court's decision in kg.. podee powerSupreme her to the mentof thewas thereforeupheld. III* Messy v. Ferguson proved the upholding law announetd a veryover ha t Os . M. JusticeHarlan that hesawLegi temperofthe1890's:Races could fine 1 dissent saying such laws.In p ad vigorous In all but mischief no powerInbut be segregatedifequal facilities 711;1, nothing of the cas en- his view regu:ste the c, u 0se' In right toupon thebasis were prtvided (left). For decades hov theland hadcivil rights reasons- Pri Joyment of be just LB to Col after this detishm. itsfitmous se bid It wouldsaid. for states of race.proper. he tosti, Avow . pie and separate cars 16 "separate but equal" doctrine lawsrequiring and [WWII- T,VolTi pass for Catholic.of thoseof " remained a rule of law. ',,,,,;be furnished t for descendants of 'Annf` ants. or and those TM/.DA, 1.0015111411 do.* Teutonicsac 11 1005.11.11 it I /ti. 1!, .011145IIII e el MC,. fil rately, to say that "a constitution is not in-sible lawyer for Oregon's case. Joseph H. tended to embody a particular economicChoate of New York turned it down; he theory," that laws might rest on "novel and didn't see why a "big husky Irishwoman even shocking" ideas and be constitutional.should not work more than ten hours if she Oregon had passed a law to keep womenso desired." A famous corporation lawyer from working more than 10 hours a day inin Boston acceptedLouis D. Brandeis. factories and laundries. Curt Muller, owner Studying Peckham's opinion in the Loch- of a laundry in Portland, Oregon, was con- ner case, Brandeis considered its reference victed of breaking it; he fought his convic-to "common knowledge" that baking was a tion through state courts to the Supremehealthy trade. Boldly and shrewdly, he de- Court, relying on Peckham's opinion invoted only two pages of his brief to legal Lochner v. New York. He also claimed thatpoints; 100 cited facts from doctors, health the Oregon statute could not meet the Con-officers, and factory inspectors to show that stitution's demand for "due process of law."overworked women fell ill, turned to drink. Historically, that had meant "a fair trial." bore sickly childrenand then neglected them. But judges were using it to protect property No one had ever submitted such a brief from laws they found unreasonable. to the Court. But the Justices accepted One reform group wanted the best pos-it, and praised him for it in their unani- "WHY NOT LET ME IN?"asks Cuba in a 1902 cartoon. "Puerto Rico is inside." Acquiring both islands from Spain in /898. the United States gave sovereignty to Cuba. It kept Puerto Rico; the island's canefields (below) produced quarrels among sugar growers and a lawsuit over American tariff duties on Jiffeign goods. When the Supreme Court reviewed this case in 1901, it held that tariffs did not apply to U.S. possessions. Such suits posed the question: How does the Constitution apply to unfi ireseen problems does it Mimc the flag? In these "Insular Cases," the Court declared that the Constitution would protect liberty anywhere under the Stars and Stripes. and would give Congress power to govern the new "American empire."

LIORARY OF CONGRESS (BELOW) MID PUCE. Li OF CONGRESS

*1(

mous decision to uphold the law of Oregon. son" for the bench. The Senate wrangled for "When an evil is a national evil, it must almcst five months before confirming him. he cured by a national remedy," cried Sena- Of all challenges to reform, child labor tor Albert J. Beveridge of Indiana. Reform- was the most poignant: "a subject for the ers were demanding change inpolitics,combined intelligence and massed morality business, society in general: in response,of American people to handle," said Sena- Congress was assuming a "police power"tor Beveridge. In 1916 Congress passed a for the whole country. law to keep goods made by child labor out Disturbed by reports of filthin meat- of interstate commerce. packing plants, it passed pure food and drug As a result, John Dagenham, less than 14, laws. Shocked by stories of the "white slave would lose his job in a textile mill in Char- trade," it passed the Mann Act. The Su-lotte, North Carolina. His brother, Reuben, preme Court upheld these laws, and others. not yet 16, would lose 12 hours of piece- But when President Woodrow Wilson work a week. nominated Brandeis for Associate Justice Their father asked the federal district in January. 1916. the New York Timescourt to enjoin the factory from obeying the thought the Court no place for "a striverlaw and United States Attorney William C. after changes." William Howard Taft and Hammer from enforcing it. As "a man of Joseph H. Choate called him "not a fit per-small means." with a large family, he com- 64 6 3 plained. he needed the boys' pay for their pre&riinently a case f "comfortable support and maintenance." cise of all its powers Their work was "altogether in the produc- Three Justices joir tion of manufactured goods" and had "noth- So did Congress: it p ing whatsoever" to do with commerce. on products of child When the district judge granted the in- Court decided that if junctions, the U. S. attorney appealed to alt y. not a tax. and he the Supreme Court. Five Justices thought tice William Howard that in enacting the Child Labor LIM Con- saying the Tenth Ame gress had usurped the powers of the states: lems like child labor I such laws might destroy the federal system. Not until 1941 did Legislation can begin where an evil be- child labor decisions gins, retorted Justice Holmes. dissenting. ers urged an amendmr If Congress chooses to prohibit trade in and called the Court "the product of ruined lives." the Court tore." They pointed should not outlaw its choice. He added: "I member of the Supre should have thought that if we were to intro- the collective power duce our own moral conceptions where in tives and ninety-six my opinion they do not belong, this was 100,000,000 people.' j Two months after Congress declared war ent danger" of -evils that Congress has a on Germany in April, 1917, it passed an right to prevent." Schenck was sentenced Espionage Act that punished attempts to to six months in jail. obstruct enlistment and discipline in the But Holmes and Brandeis dissented when armed forces. In 1918 it passed a Sedition the 1918 Sedition Act, and leaflets in Eng- Act so broadly worded that almost any crit-lish and Yiddish, came before them. Flung ical comment on the war or the government from a factory window to the New York might incur a fine of $10,000, or 20 years in streets on August 23, 1918, these papers prison, or both. summonedthe workers of the world" to Under the 1917 law, government attor-defend the Russian Revolution against neys filed almost 2,000 prosecutions, among despots. "P. S.," said some, We hate and themUnited States v.The Spirit of '76." despise German militarism more than do Only a handful of these cases reached the your hypocritical tyrants." In the district Supreme Court. Only after the Armistice court one defendant was acquitted; the rest did the Justices hear a case challenging the went to prison. w by the First Amendment guarantee of Reviewing law and the leaflets, Holmes free speech. remarked, "Congress certainly cannot for- Charles T. Schenck and other members bid all effort to change the mind of the coun- of the Socialist Party in Philadelphia were try." He saw no national danger in the convicted of conspiring to mail circulars to "usual tall talk- of "these poor and puny drafted men. In forbidding slavery, these anonymities." But he saw danger in persecu- leaflets said, the Thirteenth Amendment tion of opinions, fortime has upset many forbade the draft. fighting faiths" and the national good re- For a unanimous Court, Holmes wrote quires "free trade in ideas." To reach the that "in many places and in ordinary times" truth, people must weigh many opinions. the Socialists would be within their consti- That at any rate is the theory of our Con- tutional rights. But the Bill of Rights does stitution. It is an experiment, as all life is not protect words creating a "clear and pres- an experiment," Justice Holmes concluded.

TRUST-BUSTER- Theodore Roosevelt defies the goliaths of Wall Street. James J. Hill and J. P. Morgan, through a stock monopoly called Northern Securities. controlled rail- roads in the northwestern states; President Roosevelt ordered a suit a.gainst them under the Sherman Anti- trust Act. In 1904 the Supreme Court affirmed a lower court's Judgment breaking up the monopoly. This de- rision (Northern Securities v. (/.S.) was a victory for the public interest over the power of the trusts.

FRENZIED SELLING racks the stock market in the Punic o/' 1901 $vhen Morgan, Hill. and E. II. Harriman fought to a .stalemate Or control of railrgnul S hare s . Finally agreeing on a compromise. the three funned the Northern Securities (*ompany. UCA, LI Of CONGII1SS I L ET I AND AD AAAAA ION FROM NAPIER'S *1E11, 67 40 VP CU kkkkk

oft 114

ONE OF THE GREAT DISSENTERS, John Marshall Harlan won fame as a defender of democracy during 33 years as an Associate Justice, serving from 1877 to 1911. He protested sharply in the Standard Oil case, when the Court said that no companies may "unreasonably" restrain trade. The Sherman Act forbids "every" trust or combination in restraint of interstate commerce: Harlan thundered, "The Court has now read into the Act of Congress words which are not to be found there." Onetime Kentucky slaveowner, Harlan fought for the Union in the THE OCTOPUS:Standard Oil, first of the Civil War. Appointed to the Supreme great American trusts, came to symbolize Court by President Rutherford B. s'ealth and power running %Old, crushing Hayes, he carried on an ardent battle for civil rights. Dissenting in Plessy v. Ferguson, he "Any agitator who read these thirty-four wrote: "...in view of the Constitution, pages to a mob would not stir them to vio- in the eye of the law, there is in this lence, exceptpossibly against himself," country no superior, dominant, ruling decided one reader of Benjamin Gitlow's class of citizens.. .. The humblest is "Left Wing Manifesto." But when that the peer of the most powerful." pamphlet appeared in 1919, New York au- Good-humored and convivial, he thorities arrested Gitlow under the state's limited his disagreements to the criminal anarchy law. conference room, and enjoyed whist Gitlow applied to the Supreme Court. parties with fellow Justices. Oliver Seven Justices upheld his conviction and Wendell Holmes called him "the last the New York statute. But they assumed of the tobacco-spittin' judges." A for the first timethat freedom of speech friend said that Harlan retired at night and of the press, which the First Amend- with one hand on the Constitution ment protects from any Act of Congress, and the other on the Bible." are among the rights which the Fourteenth

6 7 68 met in the Hoop Spur church to plan ways of getting help from a lawyer. Armed white men attacked them: in the fight that followed, one white man was killed. News and rumors spread; armed posses hurried toElaine.Blacks were hunted down and shot. even women working cotton in the fields. On October I. Clinton Lee. a white man, was killed; Moore. Hicks, Knox, Coleman. and Hall were arrested for murder. The Governor asked the Army to restore order, and named a Committee of Seven to investigate the riots. When a lynch mob surrounded the jail, soldiers stood guard while the committee promised that the law would execute the five murderers. The mob waited to see what would happen. Two white men and several blacks swore later that the committee tortured blacks until they agreed to testify against the e prisoners. Indicted by a white grand jury for first-degree murder. the defendants faced in a white trial jury on November 3; a threat- ening crowd filled the courthouse and the 0 streets outside. In 45 minutes the trial was denee over; in two or three minutes the jury gave with its verdict: "Guilty." sled. From the affidavits presented to the Court. Holmes concluded.if any prisoner by any chance had been acquitted by a jury lent he could not have escaped the mob." mes All appeals in the state courts had failed. Normally, federal courts will not inter- fere with the courts of any state on matters ies. of state law. But. warned Holmes. ifthe whole proceeding is a mask"if "an irre- rs sistible wave of public passion" sweeps the prisoners through the courts "to the fatal in end"then nothing can prevent the Su- preme Court "from securing to the peti- tioners their constitutional rights." Thelfistrict judge should have examined the facts for himself. Holmes ruled, to see if the story in Moore's petition was true and if the state had not given its prisoners a fair trial. Moore v. Dempsey went back for the district judge to hear. Eventually. ail five defendants went free: so did nearly a hundred other blacks ar- rested during the riots. Federal fudges had a new precedent. citizens a new safeguard. Justice may wear a blindfold, ruled the Supreme Court. but not a mask. 7j 7Z 'T HE NEW HA reports for he thi.s cartoon 'motional evil 1400'x. Workt in the warm pinning aeon

r

74 Because state law provided a death penalty, it required the court to ap- point one or two defense lawyers. At the arraignment. the judge told all seven members of the county bar to serve. Six made excuses. In three trials, completed in three days. jurors found eight defendants guilty: they could not agree on Roy Wright. one of the youngest. The eight were sentenced to death. Of these nine, the oldest might have reached 21: one was crippled. one nearly blind: each signed his name by "X""his mark." All swore they were innocent. On appeal. Alabama's highest court ordered a new hearing for little Eugene Williams: but it upheld the other proceedings. When a petition in the name of Ozie Powell reached the Supreme Court. seven Justices agreed that no lawyer had helped the defendants at the trials. Justice George Suther- land wrote the Court's opinion. Fac- ing a possible death sentence. unable to hire a lawyer. too young or igno- rant or dull to defend himselfsuch a defendant has a constitutional right to counsel. and his counsel must fight for him. Sutherland said. Sent back for retrial, the cases went on. Norris v. Alabama reached the Supreme Court in 1935: Chief Justice Hughes ruled that because qualified Negroes did not serve on jury duty in those counties, the trials had been unconstitutional. "We still have the right to secede!" retorted one southern official. Again the prisoners stoodtrial.Finally Alabama dropped rape charges against some: others were paroled: one escaped. The Supreme Court's rulings stood if a defendant lacks a lawyer and a fairly chosen jury. the Constitution can help him. And the Constitution forbids any state's prosecuting attorneys to use evidence they know is false: the Court announced this in 1935, when FILM EPICor espionage? The case of The Spirit of '76 arose like almost 2,000 others when the 1917 Espionage Act endangered freedom of speech during the feverish days of World War 1. Poster at right announces the premiere of '76 in Los Angeles. The 12-reel photoplay portrayed events of the American Revolution clashes between patriots and English and signing of the Declaration of Independence. Federal prosecutors charged that the film's producer. Robert Goldstein. a suspected German sympathizer, tried to arouse hatred between America and her World War I ally, England, by inserting scenes showing British soldiers committing atrocities in the Revolutionary War. Officials seized the film and Goldstein was convicted (United States v.The Spirit of '76"). Under a new law, the 1918 Sedition Act, similar cases in the lower courts fur 7-1. threatened freedom 0, speech. Only after the Armistice did the Supreme Court review a scant number of these cases; Goldstein's was not among them. His movie script survives in the Library of Congress. out the film is lost. Weeks of intensive search uncovered these rare photo- graphs made during the filming and owned by Charles E. Tobernzan, a Los Angeles resident. who invested money in the 1917 extravaganza. U(S r,111011M

7,5 CLUNE'S AUDITORIU that gave each circuit a court of America the 140,110_0g of as adventuress appeals with power to make a or Americo been WIlch wsIiyou prefer? final decision in a great many cases. This law also ended the a 0 " Justices' trips on circuit duty. Before long the Supreme Court was keeping up with its sched- ules. But as new laws regulated 111101100111, business and working condi- At 0011? tions, and suitschallenging SIMMS Mallotsret sato- eseds earn these laws reached the courts, Whirse Uwe remssaso .4311estretbirylv141 overloadeddocketsplagued tbIt Is Sksa Me- the Justices again.

NMI= Toseear After Fuller's death in July, Vier. 141011 minireloMiroAwe dall,-211111 1910, President Taft broke tra- Nam :s-ski. sasess Ns. mt. dition by naming an Associate ACCOMPANIED BY BY SPECIAL SYMPHONY Justice, Edward Douglass ORCHESTRA-40 ARTISTS ! White, for Chief.

LOS NGILIS flu's When White died in1921, President Harding made Taft Tom Mooney had spent nearly 20 years Chief Justice, the only former Chief Execu- "behind the bars of a California prison. tive ever to hold the highest judicial office. To rally support for a stronger Army and Taft was vastly delighted, for the Chief Navy, San Franciscans organized a huge Justiceship, not the Presidency, had always parade for "Preparedness Day," July 22, been the honor he wanted most. 1916. As the marchers set out, a bomb ex- Considering the clogged machinery of ploded; 10 victims died, 40 were injured. the federal courts, where the caseload was Mooney, known as a friend of anarchists rising again, Taft remarked: "A rich man and a labor radical, was convicted of first- can stand the delay ... but the poor man degree murder; soon it appeared that the always suffers." The new Chief Justice set chief witness against him had lied under out to improve the whole federal judiciary. oath. President Wilson persuaded the Gov- He planned the Conference of Senior Cir- ernor of California to commute the death cuit Court Judges, a source of many reforms sentence to life imprisonment. For years in judicial practice. The law establishing the labor called Mooney a martyr to injustice. conference permitted judges of one area Finally (gooney's lawyers applied to the to help elsewhere on courts swamped with Supreme Court for a writ of habeas corpus, work. Then Taft broke tradition to lobby and won a new rulingif a state uses per- for the "Judges' Bill," passed in 1925. jured witnesses, knowing that they lie,it By limiting the right of appeal, this law violates the Fourteenth Amendment's guar- let the Supreme Court devote its attention antee of due process of law; it must provide to constitutional issues and important ques- ways to set aside such tainted convictions. tions of federal law. In most cases since The case went back to the state. In 1939 1925, the parties ask permission be heard; Governor Culbert Olson granted Mooney the Justices grant or den'it at discretion. a pardon; free. he was almost forgotten. Before gaining freedom to choose cases, the Court astonished the country in 1923 by "JUSTICE DELAYED is justice denied" a choice of precedents to decide Adkins v. the Supreme Court saw this in 1887, Childrn's Hospital. In the majority opinion, when it was almost four years behind in its Justice Sutherland returned to the "meddle- work. Appealing to the public, ChiefJustice some interferences" doctrine of Lochner v. Waite sought "relief for the people against Nett. York. the bakery case of 1905. the tedious and oppressive delays" of fed- Congress had passed a law to guarantee eral justice. In 1891 Congress passed a law minimum wages for women and children

77 NairTONE P1/111.1C 1.1

working in the District of Columbia. A ti r.4 children's hospital attacked the law: the The RevolutionaryAge case reached the Supreme Court. Five Jus- Ilkywal se oho laftrastiori Comaries Sisagl. tices agreed that the law violated the due 0.4 00.

process clause of the Fifth Amendment and In This how: the sight to liberty of contract. Sutherland WIWingConvention, hinted that since women had won the right ManifesinandProgram to vote they were legally equal to men, so Congress should not single them out for special protection. "It will need more than the Nineteenth Amendment to convince me that there are no differences between men and women," Holmes retorted. dissenting. "or that legis- lation cannot take those differences into account." On the "dogma" of liberty of con- tract. he remarked: "pretty much all law consists in forbidding men to do some things

that they want to do,and contract is no more 'nasal&ANA!. exempt from law than other acts." Taft also dissented. He had always sup- posed. he said, that Lochner had been over- ruled by later decisions: and. he added. poor COMMUNIST CANDIDATES, WilliamZ. workers cannot meet an employer on an Foster (left) and his running mate Benjamin equal level of choice. Gitlow lost miserably in the 1928 Presidential But Arizona. Arkansas. and New York racP. In 1925 the Supreme Court had upheld saw their minimum-wage laws go down a New York conviction of Gitlow for under theAdkinsprecedent. publishing the "Left Wing Manifesto." This Justice Sutherland always believed that ponderous article, calling workers to rise judges were the best guardians of liberty. against capitalism, appeared in The Chosen for learning. ability. and impartiality, Revolutionary Age (above). judges were safer guides than any other men. Courts were wiser than crowds. "I am an optimist in all things." Suther- land said once. He felt sure that evolution's universal laws were making the world bet- ter, that meddlesome legislation could only bring trouble. Often he spoke for the famous "four horsemen"himself, Pierce Butler. James C. McReynolds. and Willis Van Devanter. With them and one other Justice. Sutherland could say what laws were valid. By 1930 Harvard Professor Felix Frank- furter took stock: "Since 1920 the Court has invalidated .:lore legislation than in fifty years preceding." When Taft retired that year. President Hoover wanted Charles Evans Hught-s for Chief Justice. Debating the appointn. cot. one Senator accused the Justices of "fixing policies for the people when they should leave that to Congress." another called the Court "the economic dictator in the United States." But the Senate

unttto rens 11111111NATIONAL 79 78 confirmed Hughes for Chief, and Owen J. Court decided the case of Leo Nebbia. New Roberts for Associate a few months later. York's milk-control board had fixed the law- Nicknamed the "roving Justices." Hughes ful price of milk at nine Cents a quart; the and Roberts sometimes joined the "fourstate had convicted Nebbia, a Rochester horsemen." sometimes joined three Judges grocer, of selling two quarts and a five-cent more willing to accept laws however med- loaf of bread for only 18 cents. Nebbia had dlesome. These three were Brandeis, Harlan appealed. Justice Roberts wrote the ma- Fiske Stone. and Holmes until he retired in jority opinion, upholding the New York law; 1932. Benjamin N. Cardozo succeeded him, he went beyond the 1887 decision in the and often voted with Brandeis and Stone. Granger cases to declare that a state may regulate any business whatever when the WHEN THE STOCK MARKET col- public good requires it. The "four horsemen" lapsed in 1929 and the American econ- dissented: but Roosevelt's New Dealers be- omy headed toward ruin. President Hoover gan to hope their economic program might called for emergency measures. The states win the Supreme Court's approval after all. tried to cope with the general disaster. They were wrong. Considering a New Before long. cases on their new laws began Deal law for the first time, in January, 1935. to reach the Supreme Court. Franklin D. the Court held that one part of the National Roosevelt won the 1932 Presidential elec- Industrial Recovery Act gave the President tion. and by June. 1933. Congress had too much lawmaking power. passed 15 major laws for national remedies. The Court did sustain the policy of reduc- Almost 20.000,000 people depended on ing the dollar's value in gold. But a five-to- federal Mier by 1934. when the Supremefour decision in May made a railroad pen- O. S. ARMY TROOPS guard Negroes rounded up near Elaine, Arkansas, after racial violence broke out in the autumn of /9/9. Black sharecroppers had felt w hite landlords were cheating them. Local authorities feared subsequent riots mere the beginning of a mass-murder plot.

aiNIMI=MEM. sion law unconstitutional, Then all nine Justices vetoed a law to relieve farm debtors, and killed the National Recovery Administration: F.D.R. denounced their "horse-and-buggy" definition of interstate commerce. While the Court moved into its splendid new build- ing, criticism of its decisions grew sharper and angrier. The whole federal judiciary came under attack as dis- trict courts issuedover a two-year periodsome I ,600 injunctions to keep Acts of Congress from being enforced. But the Court seemed to ignore the clamor. Farming lay outside Congressional power, said six Justices in 1936: they called the Agricultural Adjust- , ment Act invalid for dealing with state problems. Brandeis and ('ardozo joined Stone in a scathing dis- sent: "Courts are not the only agency ... that must be assumed to have capacity to govern." But two de- cisions that followed denied power to both the federal and the state governments. In a law to strengthen the chaotic soft coal industry Itrtoft,t and help the almost starving miners. Congress had kitty SCENE OF VIOLENCE: Mack .sharecroppers air grievances in Hoop .Spur church near Elaine. White 'nen park nearby. Suddenly gunfire explodes into the Massacr. Frank Aloore and other blacks were sentenced to die .1Or murder. 11w .Supreme Court considered their claim that mob domination barred JUir trial. and returned the case to a .federal court .1Or investigation (oore v. Dernmey). Eventually. all defendants went free. t. 0 81 dealt with prices in one section, with work- to name an additional Justice when one aged ing conditions and wages in another. If the 70 did not resign, until the Court should courts held one section invalid, the other have 15 members. (Six were already over might survive. When a test case came up, 70; Brandeis was 80.) Roosevelt said the seven coal-mining states urged the Court Court needed help to keep up with its work. to uphold the Act, but five Justices called Even staunch New Dealers boggled at the whole law unconstitutional for trying to this plan; it incurred criticism as sharp as cure "local evils"state problems. any the Court had ever provoked. Chief Then they threw out a New York law thatJustice Hughes calmly pointed out that the set minimum wages for women and children: Court was keeping up with its work. And in they said states could not regulate matters angry editorials and thousands of letters to of individual liberty. Congress the public protested the very idea By forbidding Congress and the states to of "packing" the Court. act, Stone confided bitterly to his sister, the Before the President revealed his plan, Court had apparently "tied Uncle Sam up five Justices had already voted to sustain a in a hard knot." state minimum-wage law in a case from That November Roosevelt won reelection Washington; on March 29, the Court an- by a margin of ten million votes; Democrats nounced that the law was constitutional. won more than three-fourths of the seats in On April 12, Chief Justice Hughes read Congress. The people had spoken. Yet the the majority opinion inNational Labor laws their representatives passr.l mightRelations Board v. Jones & Laughlin Steel stand or fall by five or six votes in the Su- Corporation. It upheld the Wagner Act, the preme Court. Roosevelt, aware that Con- first federal law to regulate disputes between gress had changed the number of Justices capital and labor. Hughes gave interstate six times since 1789, sent a plan for court commerce a definition broader than the reform to the Senate on February 5, 1937. Jones & Laughlin domainmines in Min- Emphasizing the limited vision of "older nesota, quarries in West Virginia, steam- men," Roosevelt asked Congress for power ships on the Great Lakes. Although the case

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VIDERVI0013 1.111001100 et turned on a union dispute at one plant in and Exchange Commission. Attorney Gen- Pennsylvania, he said, a company-wide dis- eral Frank Murphy came to the bench in pute would paralyze interstate commerce. 1940: Senator James F. Byrnes of South Congress could prevent such evils and pro- Carolina, in 1941. tect union rights. When Hughes retired that year, Roosevelt Under these two rulings, Congress and made Stone Chief Justice and gave his seat the states were free to exercise powers the as Associate to Attorney General Robert Court had denied just a year before. Stub- H. Jackson. How the "new Court" would bornly the "four horsemen" dissented. But meet old problems soon became clear. Van Devanter announced that he would Congress passed the Fair Labor Stand- retire. By autumn the fight over the Court ards Act in 1938. It banned child labor, reg- was a thing of the past. ulated hours, and set minimum wages-25 As Lincoln said in 1861. the people would cents an hourin interstate commerce. rule themselves: they would decide vital United States. v. Darby Lumber Co.brought questions of national policy. But, as firmlythe law before the Court in 1941. as Lincoln himself, they disclaimed "any If the Justices followed the child-labor assault upon the Court." In one of the Su-decisions of 1918 and 1922, they would preme Court's greatest crises, the people veto the law: but all nine called it valid. chose to sustain its power and dignity. But new problems tested the Court as it was defining civil liberties. Danger from CHANGED dramatically abroad made the case for patriotism and DMMONSinthe "constitutional revolution" offreedom in America more urgent: in the 1937. So did the Court when President"blood purge" of 1934, Adolf Hitler had Roosevelt made appointments at last. announced, "I became the supreme judge In1937 he named Senator Hugo L. of the German people." Black: in 1938. Solicitor General Stanley Under God's law, the Commandments in Reed: in 1939. Felix Frankfurter and Wil- the Book of Exodus, members of Jehovah's

I m O. Dough's. Chairman of the Securities Witnesses refuse to salute a flag.

JUDICIAL ARCHITECT, William Howard Taft, tenth Chief Justice, streamlined the Nation's system of legal review. At his persuasion, Congress passed the "Judges' Bill" in 1925. This stripped the Supreme Court of routine cases, leaving Justices free to hear only suits that involved major constitutional questions and problems of ftderal law. He won another victory when Congress provided funds for the first Supreme Court Building. With the Justices in 1929 (left), Taft studies architect Cass Gilbert's model. When the cornerstone was laid in 1932, Chief Justice Charles Evans Hughes said of Taft, who had died two years before: "This building is the result of his intelligent persistence." Taft realized a lifelong ambition when President Harding appointed him Chief Justice in 1921. Taft later wrote, "... the court ... next to my wife and children, is the nearest thing to my heart in life." Before becoming Chief Justice, he served as the twenty- seventh Presidentthe only man to hold both offices. ,1,-AW

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MM,110 44444 IMMORitOMM t4.0111 MID t LAM BEWILDERED BLACKBLACK YOUTHSwalk under guard of state militia toward the Jackson Cou.nty .01101"- courthouse at Scottsboro, Alabama. Charged with assaulting two white women, the defendants stood their first trial in 1931 when 19-year-old Ruby Rates (lell. on witness stand) said the Negroes had attacked her and a friend. At a later A trial in 1933 she swore that her original story was a he. but her repentant testimonyWed to

-As. convince the jury. She later led a demonstration the White /louse in an appeal for the freedom Ai*4 of she nine Negroes.

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MDR WORLD IRD4111 I. MOWN RDYNERS .4.1 When Lillian and Williani Gobitas (misspelled "Gobi- tis" in the record). aged 12 and 10 in 1935, refused to join classmates in saluting the Stars and Stripes, the Board of Education in Minersville. Pennsylvania, decided to expel them for "insubordination." With help from other Witnesses and the American Civil Liberties Union, their father sought relief in the federal courts. The district court and the circuit court of appeals granted it. In 1940 the school board turned to the Supreme Court. Considering the right of local authorities to settle local problems. tight Justices v )tee-"hold the school board's "secular regulation." Jwiti.. ..kfurter wrote the ma- jority opinion. He told Ju..o . r that his private idea "of liberty and toleration a... sense" favored the Gobitas family, but he believed that judges should defer to the actions of the people's elected representatives. Hitter's armies had stabbed into France when Frank- furter announced the Court's ruling on June 3.1940; Stone read his dissent with obvious emotion, insisting that the Constitution nupq preserve "freedom of mind and spirit." Law re view's criticized the Court for setting aside the

t 11A110 issue of religious freedom. Jehovah's Witnesses suffered violent :ittacks around the country: many states expelled childrisi from school for not saluting the flag. scrTsaono BOYS wah lawyer Sam Leibowitz, who later ri.nr!e a famous Ne%4. It "A fudge. fii% frilAterly de- rive fiwused iiitention ern PHI (hr Alabama ,r:,11 where eiKhi PI the defendant% tt er: WO le to death in .ht electric chair.I he spotlight of the Scottquirli rases fell On HavItrnid Pattervon i Leihiositz andhi% shirrd that qualified Negroc% had heeh barred from wry duty, and claimed that the Youth% Izad been denied a Mir I' trio! (hr Supreme Court re- vi-rsed their convicthins. 41,ihiono tried them again. In a a Alahiona courtrinini oith r.rib,witz(opposite), Pottervon holds a hor%e%luie fo voint rick. It .Miled him. Ile was lour times tried and convicted of attacking two white kith. In ,#.18 he escaped prison and Wit% never recapturcd. We Virginia law required all schook to 'in this solemn hour we pledge our fullest teach "Americanism," and in 1942 the State coopena:on to you. Mr. President, and to Board of Education ordered all teachers our country.- said a telegram toPresident Jimd pupils tu salute the flag. A child who Roosevdt, December 7. 1941. from !.!le Jap- refused might be punished as a "delinquent.- anese American Citizens League. at news his parents might be fined or jailed. of the Japanese attack on Pearl Harbor. Walter Barnette and other Witnesses with By the spring, of 1942 such citi7er ;s were school-age children sued for a federt,i1 in-a vilified minority in their own country.In junction against these penalties: in 1943 the February the President signed Executive Supreme Court heard the case argued. Order 9066. authorizing the War Depart- On Flag Day, June 14. the Court 11'it1y ment to remove any and all persons"from overruled and repudiated the Gohitis military areas it might name: Congress ap- vision. For the majority. Justice Jackson proved in a law passed March 2 L The West- rejected the idea that a child's fonet! solute ern Defense Command ordered everyone would foster national unity. He singled out of Japanese ancestry to stay indoors from as a "fixed star in our constitutional con- p.m. to 6 a.m. In May the Army ordered stellation- this fact"no official, high or such persons to report for evacuation to petty.- can prescribe orthodoxy in politics. "relocation centers--detention camps. nationalism. or religion. for any citizen. Gordon K. 9irabayashi. a senior at the Justice Frankfurter still upheld the state's University of Washington. thought it was action against his own "purely personal- his duty as a citizen to disobey both these lying: "One who belongs to the most orders, to defend his constitutional rights. vilified and persecuted minority in history Convicted and sentenced to three months is not likely to he insensilvie to the freedoms in prison, he applied to the Supreme Court. guaranteed by our Constitution." Chief Justice Stone spoke for all nine in Junc .1943: the curfew was within the war power of the President and Congrc ss. Con- t'.1) 1,1tHTYli her labor, bent curring. Douglas wrote that the Court did thurtreNlettur% ,"_)tietttitt in '939. Chorwed not consider the wisdom of the order:Mur- ff air itirder for death% let it 1910 Prepared- phy insisted that the gov'ernment could take ness Att. hottfinnw. he escaped the wallow% such measures only in "great emergency.- If hen loch mill( at d he had been convicted on In Korentatsa v. United Slates, argued perjured testimony. In ly IN the Governor of in Octobir and decided on December 1$, California cottottutet; hi% %emend.' hi life 1944. Court upheld an Army order ban- in prison: 20 year% lair, he was pardoned. ishing, iNans of Japanese ancestry from , - the west coastadults, foster children in white homes, citizens "with as little as one- sixteenth Japanese blood.- Justice Black wrote the majority opinion, mentioning Toyosahuro Korematsu's unquestioned loyalty. Orders affecting one racial group are "immediately suspect.- saidBlack, but the Court would accept the order "as of the time it was made.- under the war power. Three Justices dissented. calling the order "a clear violation of Constitutionalrights.'' "utterly revolting among a free people.- That same ci. the Court unanimously ordered the Central Utah Relocatioi, (*enter to release Miss Nlitsuye Endo.The War Reloca'ion Authority had conceded she was loyal, law-abiding citizen. but it had not allewed her to leave the centerfreely.

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Ion the inirapetinright. tn.' rthelev%, he (11,plied10the 'onAti.fitton J, -hide use in %i .4111 ,001. 41,4 M.,. i s opinion warned that as pen-and-pencil st ,_--mmunity is not pow- and the Federal Br 6..oryhy eititeus. Federal Five nighis later. if habeas corpus in Thiel. Edward Kerli 1. -Loyalty is a limiter of bailer landed safely L!..- added Douglas. "not Florida. from anothi saboteurs damaged the FBI announced fOr FLiI hard President Roosev, .en -list...cr.. (.01. commission to try tl oi. ( ,1 Articles of War, an ontt order of Dowell to defend thi in-( Mt:. ihe!, had to defy (nation do,ing all iell.s.:Illt it:man-born. enemie'.. but the deft ri rtorned bd. ', fhei,clients. to disi tid sabo..1ge techPilltP.S :', col nn:ssion's leg:

:ht fOg on June I?. 194'. After two da s edged tow ar.: Ama- ing lawytrs for botl og I sIanti. to Lind Quirin tha-ongrc,s. in th es. in (ierman uniform. pro-.ided for cornmi, )n the beach the!: met an that the President I larafsman who pretended one: that the writs tor, about fishing. then The PresidAt an p. Armed, his patrol hur- that all the saboteu (:-boat diesels offshore. six executed. Two ti "F' and bombs, disguised with the FBI went I s-rn..t.SMILING31 1.-P0Nehhia. former gra:Tr of Rm.' New York, holds two bottles of 194.5 had more than t. lied in co- ne sold a for nine ents a quart darin,.se Great Depression. He sought rev:ew in the _Supreme Court after being ..00virted of breaking a .dat minimum- price law pen s,to protect the .Vrw York milk indugry in the face of damaging price wars. Precedents from the 1920'., suggested that the Court %trike down the law. in 1934 Jive Justices votedh sus- tain it av a reaonahle InellAure to promote the public weilare (Nebbia v. New York). ,Vehhia paid a five-dollar fine. The picture it right appeared in a newpaper reporting the outcome of his ease. for the picture taken fur 'his hook. ,Vehhia in 1965 a realtor in La% rega% made a vpecial journey to Rocheder. Ile died in June. 1974. Mdur !uum. hnuent, milts the %tore. lour tittle% a large but %till at the %wile location.

Initspuhlisht . .pinion the Supreme a natut Court discussed picceLients from l7X0 toThiel a recent years. And it set another precedent States.' nu proclamation from the White House nesses would close the doors of the Court. An"long a executive order would not annul its power what th to review wivernment actions under law. The Bridges and aluminum plants survived gave th the saboteurs' visit unharmed: a friend and ;5-aid for a father did not. From Werner Thiers days any in New York. watched by the FBI. came less del Cramer v. United Slates. For the first time public the Supreme ( ourt reviewed a conviction Cramer for treasor a live to-four vote d.:cided that Acts the conviction could not stand. treason Justice Jackson. for the majority. ex- ror the plained why. :he Constitution outlines the

law o most intricate crime in two sentenc- 11.1A°1nns!:la es -packed with controversy and difficulty,- stood tr he said. Treason against the United Stales of the si lies "Only in levt ing War against them. or in Witnes Ancring to their Enemies. giving them Aid son for and Comfort." Unless a person confesses he had I "in open Court- or two witnesses testify him try "to the same overt :let" of treason, he can- lenses f not he found guilty. these ac the jury that convicted Anthony Cramer. Flaupt8 a UNFIALEU "BLUE EAGLE, symbol of the National Recovery Administration (NBA,. rises above a delegation lief t, headed by New li,rk City's Mayor tiorellt, II. l_a Guardia. in cen- ter Juregruund. President Franklin I). Roosevelt vet up the ,NRA in

1933 under one of 111(1.% vweeping la. ever par.- :.d by Congress to regulate (ommerci among the states. As an emergency measu:. the RA attempted. through Ji'deral control. to promote the recovery of the ,Vation's industry. create work for the mass of Great l)e- prevvion foblevs, and provide purchasing power to drain the viirphis of food and manullietmea ipanlv piled up in warehouses throughout the cinintry. What hit ni:' wonders th( ,Vew 1)eal f ri gh ). cauvelll by a whirlwind decivion of the Suprl rue ('ours.

A:( TI)! 'I)US BROTHERS..eletror rleltt arse/ Alet Schechter. vlioul- LINGF.:RINC REMNANT OF NRA:A "Blur Eagle" der lawyer Joveph H..iler who poster (1,elow) peels away til the nand of an employee in the Commerce 1)eptironent. Wash- ;Ion their ueleb-ie : +Mi llie "sick (lin kc. .." a ington. 1).C. Until thi Court outlawed the deatholow to ti:. qA he t:ov- VR:I. industries that hail voluniarify tried to entmetti hit(! inihr the brother,. improve the economy by regulation of produc- ;ion and prh'-'s had displayed the "Eagle.- poultry dealer, in N./qv /or breakitt, the "I.ive Poultry Code" that tOviereil lair a ompetiti. In lion the brother had 4.,Ioncil tliat the RA was unlawhil, became (Ortgrevv improperly dele- gated too much 1, ..ivlative power to tilt' l'revidelit. In 1935 on a day BIM A .tlotrila v.the (Our, killed the .\ RA l'Selita-liter l'indtry v.1'. S. and ruled ligain.vt the .Iihritinstrution ai two other ,uportant case:. In deciviotiv that followed, the Court contilnied to vtrike (linen Rome; eh... minor ,Vew real levslation TED P.S5 1001.fieht 9i FIRESIDE CHAT:President Roosevelt defends his reorga- nization plan for the Supreme Court during an informal radio broadcast on March 9, 1937. In this retaliation to the Court's hostility toward his New Deal reform measures, Roosevelt labeled the Court a "third House of the Congress a super legislature." He urged listeners to "save the Constituaan from the Court and the Court from itself" His proposal, called "Court- packing" by the public. advocated more Judges. who would bring a **steady and continuing stream of new and younger blood" to the Court. CINL n service. Black warnedif he and power for Congress to say so. rt did not. To provide for justice in Its, said Black. Congress could give on to civilian courts by law. Air Force base in Oxfordshire. a sergeant's wife was saying she LI her husband the night befor.:. ons. thought the Air Force psy- he knew how she had grown up

I in a poor and broken home, how and squandered money and drank. :nt men to investigate: they found tnd's body. psychiatric and prcriatal care. she a hospital until a court-martial 1 her of premeditated murJer and her to life at hard labor. Flown merica inI 953. she bore her third feLieral prison for women. flirt of Military Appeals ordered a

:in 1955 doctors found her sane: Supreme Court agreed to hear that the Uniform Code of Mill- ce denied her constitutional rights trial under the Sixth Amendment. case they took another that raised legal issues. g under pressure as the term was he Court reached these cases and d the validity of military irials for pendents abroad. Warren. Black, CARTOONS PRO AND CONappeare,1 in news- papers when President Franklin D. Roosevelt tried to add sir Justice's who would favor his policies. From 1935 until 1937. the Supreme Court pictured below negated New Deal attempts to lift a depressed economy.

"NINE OLD MEN" OF1937; telt are (standing) Owen J. Roberts, rierce Butler, Harlan Fiske Stone, Benjamin N. Cardozo; (seated) Louis D. Brandeis, Willis J. Van Devanter, Chief Justice Charles Evans Hughes, James C. McReynolds, George Sutherland. ,r,/.113,/ /FM,/ C10.

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%VI 1..11%1ATII tar COLAS!' 1)1..(:ISII/V..-1 %ter/ .striAt. trigh0 IPI that. /,//ott ell a .triireau..,art rase ittralt.triq.latte.s Stec! Carporatam. Its plant in Aliquippa had fired 12 emplayee. %ripp,rted the .1teel It'l,rker% C,anniittt.e. a.1.0. union. It lien Ilse',turf nitheId the1 acfn'r Art. which fia.bids stall action by nianal.y.nrunt. Il ,wilered the it.whers reinstated. 1 he Catirt'.% action anhrined labar's rit:ht let IOW 101' the witopi 01. M choicr. ilia of first the ( refused In l'IMItlit 1.1 an election. WorAct% weal tal rt;,e. and itttrr. SIC 1111 Orke ) C(11, hall) )1 tar imam prefereme.

and Douglas noted dissent: Frankfurter. a -reservation- of opinion. Then, as it rarely does, the Court granted a petition for rehearing: inV57 six Justices agreed to reverse the decisions. Congress could not deprive cvilians of the safeguards(' in the Hill of Rights, Black insisted. LT the new ruling. courts-martial may not, r.,1 mothers. wives. or children or,erviceni 1 for crimes carrying a death Pehulty. Extending this rule in a series of ca the Court stop; et.' eft-martial trial of pendents for lesser LThmes. and of civil employees nail fitr :Hair.

MFANWHII F aOther long series of decisions. the Court was defining the constitutional rules for fair criminal , trials in ;fate courts. Fortured and whipped by deputy sheriffs. three men confessed to murder: in 1936 the Supreme Court found that their state. Nlis- sissi ppi. had denied there :ate process of law.

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LIKE FATHER LIKE SON AND DAUGHTER,William and Lillian Gobitas with their father, Walter, between them, believe as Jehovah's Witnesses that .,alutinv the flag is idolatry. Their _Muter charged that onspot ',P1' pledges of allegiance to die flag denied h1.1ha:Iren freedom of reli- gion, a bast(c on,tautional riglo 1940 the Court ruled against him, re fsising to he .,ta for the counery."

On trial. Mrs, Mapp off 'idence that a boarder had left the books. same ;Ind no forwarding ad- dress. The police did wt prove they had ever had any warrant. But Mrs. Mapp gut a prison sentence. Ohio's highest court upheld i:. Reviewing Mapp lir', the Supreme Court decided in 1961 to bar the c;.,,:s of every courtroomstate as well as federal"to evidence secured by official lawless- ness." The Fourth Amendment sets standards for search and seizure, said its opinion. and the Fourteenth requires judges to uphold them in every state of the Union, In closing the courtroom doors. the Justices guarded the doors of every home.

TO ()ITN all public-school doors to Negro children, without discrimination, the Supreme Court gave its decision in Brown v. Board of Education on May 17. 1954. Chief Justice Warren read the unanimous opinion: "... in the field of public education the doctrine of 'sepa- rate but equal' has no place." Inheriting this doctrine from Messy v. Ferguson, the Court first heard full argument on its place in public edu- c lion in 1938, when OF. Court 01 :-red Missouri to let a black j:n white students at the state's only law school. By 1951it had similarly applied the Messy doctrine in three other graduate-school cases. Oliver Brown of Topeka. Kansas. sued the city school hoard that year in behalf' of his eiht-year-old daughter

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FIGHTER Jr civil lib Gordo', K. !lin (right). teaches it chi Univervity of A Canada. A college 1942, hr military order that Japanese-Amyl register ,lior eruct relocation eel, claimed that the Art violated his riA U.S. citizen. His ply when the Sliplell lifirabayatilti v. Ir. that Ifte threat of and ith.ditge saticti military resit' colilitiitiotial Japanese-Americiin civil liberty, Dr. K. Ilirahayashi s a class at the Fry of Alberta in ollege senior in !fi.ed to obey er that required .e-Amrians to r evacuation to 'ion centers. lle the Army order I his riglas as a His plea failed Supreme Court hi v. I'. S.) held real of invasion sanctioned the ry restriction of Id rights among writ'an Y.

EIGHT NAZI SABOTEURS,foiled by FBI agents in their attempt to cripple IL S. industrial plants in 1942. faced trial by a military commission. Their lawyers, assigned by President Roosevelt. applied to the Supreme Court. claiming the commission was unlawfully appointed. But the Court upheld the commission under the powers of the President and Congress (Ex parte Quirin).

Linda Carol. She had to cross railroad yards T001.5 QV DESTRUCTICINtholPlirc w to catclukt_hus for a NegroschooL21___ teams of .four as shown above, landed from blocks away; her father wanted her in the U-boats, one team at Long Island. New York. white school only five blocks from home- the other south of Jacksonville. Florida. Each Three federal judges heard testimony on team brought ashore boxes of high explosives teachers, courses of study, buildings; they !below) that included TNT disguised as coal. heard lawyers for Brown and 12 other black incendiary pen-and-pencil sets, fuses, detona- parents argue that the Kansas law permit- tors, primers, and an assortment of meciumical ting segregation violated the Fourteenth and chemical timing devices. Coast Guardsmen Amendment. Finding the schools substan- discovered the New York seam's cache buried tially equal, the judges ruled against Brown: with Ger ..an io:forms in sand dunes. they said that Plessy controlled the case. Ten-year-old Harry Briggs, Jr., and 66 other black children had filed a similar suit, through their parents, against school author- ities in Clarendon County, South Carolina. The county was spending $395,000 for 2,375 white pupils, $282,000 for 6,531 black pupils. All the white students had desks: two black schools had no desks at all. Like the other school cases, this was a suit in equity: If someone suffers a wrong and the law provides no remedy, he may ask a court of equity for relief; for centuries such courts have had power to fashion spe- cial remedies to serve the ends of justice. The federal court that heard the Briggs case ordered Clarendon County to "equal- ize" its schools as soon as possible; but, nnCST,. G S 100 TWO ESCAPED EXECUTION:Dasch and Ernest Burger lost courage and expc red the sabotage plot to the FBI. Within 14 days of their landing all the saboteurs had been captured. The two informers were spared the electric chairthe fate of the other six. Below, Maj. Gen. Myron C. Cramer, Judge Advocate General of the War Department, holds a shovel used as evidence in the trial of the men.

GERMAN UNIFORM CAPcrowned the military dress worn by the saboteurs when they landed. Not until they changed into civilian clothes on the beach did the raiders become liable for espionage and the death sentence that conviction carried under the laws of war.

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.110,1111i111,001,1 nr 11/11,4411,1111011.10 11,0,10 R1, I% 101 PT 70TH AIR FORCE POLICEMANin Korea, Robert Toth (left) was honorably discharged from the service only to be arrested by the Air Force while working in a Pitt burgh steel plant in 1953. Charged in the di ath of a Korean civilian who had been shot by an Air sentry one night when Toth had been on guard duty, the former airman was flown back to Korea to face a military trial. Toth went free vhen the Supreme Court held that ex- servicemen may not be tried by court-martial for alleged service crimes (Toth v. Quarles). At right, he hugs his mother and sister on his return to the United States.

The Justices heard attorneys for the Ne- groes contending that discrimination by. race violated the Fourteenth Amerdment, and attorneys for the states insisting it did not. In June, 1953, the Court ordered a re- argument, inviting the Attorney General of the United States to take part. If historical evidence could show how Congress and the ratifying states meant the Fourteenth Amendment to affect public schools, the Justices wanted to hear it. They also want--d rgumen one "Cain's own equity powers. They heard it in December. The Justices found history conclusive on lack one point: Public education has gained im- rule portance and scope since 1868. On other alid. poilits history was uncertain, the Justices itin concluded. They ruled that segregation in the public schools deprives children of "the tal- equal protection of the laws guaranteed by 'ard the Fourteenth Amendment." are. The May 1954 rulings affected 21 states lund and the District of Columbia. But the Jus- :red tices did not order specific changes at once. ools They gave all the states affected a chance to the be heard in yet another argument, this one re- on appropriate remedies. Some states filed briefs: Oklahoma ex- ded plained that it would have to rewrite its taA ien- laws; North Carolina and Florida included ,rief long reports on public opinion. :red On May 31, 1955, the Chief Justice again tged spoke for a unanimous Court. The cases :ack would go back to the lower courts: these urts would review the work of local officials fac- ises ing the problem of unprecedented change. In the 12 fat volumes of record, the Jus- tices read one plaintiff's testimony. Telling )1 whole soul and represental "the only way legislature Kt our children a year in s d they come up was giving he official corn- for 18,000 : "We think the Althougt latient efforts ofcases on v more than their in state prii tto prejudices." a case on 1 1946. "Cr' presentation is'idealthief ists were saying warned: fec 960's, voters in Neverthe the same thing. phis. Tenni makers to Con- voters !res. of course: Carr, Secre :rsa minority They asked re. People had in the state cities, but elec- The Tenn ed. districts she tive spoke for so each nu for 33.155. In represent al lercent of the But the Gu y of the state's reapportion /02 OlieselON op COROCCTIOMO CORRESPONDENCEREGULATIONS WNICM COCO NOT C ffffffWI MAIL WILL NOT asORLI letter-We I 113 z II" and writtenow or skle only. ant to Gamed 3 sheets letter. Cillgettga. No.1 -- Only 31 lettere sub week, mud bs 'Aped at the does at mem Lod It rated piper, do not orpowools Lines. Your complete nose letters. people, sieritmery or net semime s ~Iowa to your assoer, wiser, WU- slaaps. Marrs from other jtrisoa mem of the Waste. Cell to addressed in the complete wtth your complats tams andaddress In the No. 3 -- All Maws mustto placed in lower let cornerat earelogo, cable, sad prime meeddr met Ilesatborisad packages MU DIdestroyed. ewer lett corner. eatlioal a Package Permit. No. 3 -- Do not smog eay packageswritten In laglish only. character will to delivered only Ifmaned No. 4 -- Letters Met bepompidets. and mompapers at reputable No. 5 -- "sobs. saegatteek maw detect tram the pelellalet. Orders map,In the imnate's complete palace No. 4 -- btu My must to sentIn the form at Pastel limey

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9;i PLEA OF A PAUPER: Clarence Earl Gideon (far right) signs copies of Gideon's Trumpet, the story of a case that heralded new hope for destitute defendants. Charged with breaking into a poolroom, penniless when brought to trial, Gideon asked the court to appoint counsel. But the judge refused. saying that Florida law provided indigent defendants with counsel only if they faced the possibility of the death sentence. Convicted. Gideon spent hours in the prison library consulting law books. Then he penciled the petition (left) asking the Supreme Court to hear his case. The Court appointed attorney Abe Fortas ( below) to represent him. In / 963, it decided Gideon had been denied a fair trial. adding that every state must proviik counsel to an indigent prisoner charged with a felony (Gideon v.Widniright). Later. in a retrial. his lawyer won (Ica:tidal Jar Gideon.

Wher Carr, Ill Justices districts States; setting that mil matter f Justice If a state

rF than anc districts protectic "debase court fa In Mt case bac decide. E states vo courts ft. NA/IONAL 4f0G114NIC NOtOGNANIFIN NONInt r 4153011 (C) N G BRIAN LANCEI. TOPOILCAPITAL-JOUI LESSONS IN EQUALITY:When a white public school turned away Linda Brown (left, later Mrs. Charles D. Smith, of Topeka, Kansas), her father contended that segregated public schools could not provide equal opportunities. Such discrimination infringed his daughter's constitutional rights, he claimed. The resulting case became the most famous in modern Court history. In /954, unanimously overruling the "separate but equal" decision of the /896 Plessy v. Ferguson case, the Court shed new light on the "equal protection of the laws" provision of the Fourteenth Amendment. In public systems, the Court concluded: "Separate educa- tional facilities are inherently unequal" (Brown v. Board of Education). This ruling affected 2/ states with segregated schoolrooms such as the one at right. It also spurred a revolution in the legal status of Negroes in all avenues of life. In /975, because of this decision, sixth-grader Charles and fifth-grader Kimberly attend desegregated neighbor- hood schools with classrooms like the one below. A case from tionment befor Congressional Alabama-api rejected three r taining the lov for a state legi population, the tion. the Court geographic, his In these cas Eisenhower ha his grandfather might prefer to ing than popular should respect districts, he fou to take action:

MIGHTY "Al.ence upon us, our parents, As superviso New York law, room prayer in public schools, as set forth in Almighty God security" in dan *prayer to local cluding the boa' 1OLFF. BLACK STAR anal appor- a 1964 that pop trict judges state. Sus- new rules e based on in popula- .ts valid for done. (President the Court that a state in lawmak- I the Court igressional for courts with him. it depend- ;ings upon try." tion under this class- o place in r children. ence, that the "best ndel their ted it, in- i voted in

107 1958 for the prayer to open each school day. Court took Engel v. Vitale for review; it let Some parents objected: they feared that religious groups and the Regents file special if government may regulate or require any briefs as amici curiae, "friends of the court." religious practice in a public school it gains The briefs outlined the controversy. power over matters that should be free. For Engel: Americans have been a de- The classroom ceremony offended fami- vout people: but to study their history is one lies who were Jewish. Unitarian. members thing, to worship God is another. By com- of the Society for Ethical Culture. and non- posing and instituting a prayer, the 13 Re- believers. Steven I. Engel and four other gentsall laymen and state officialshad parents asked a New York court to order taken on the work of clergymen. James the prayer discontinued. New York's con- Madison had dered "that the Civil Magis- stitution and the Nation's forbid any "es- trate is a competent Judge of Religious truths tablishment of religion" by law, they insisted. or that he may employ Religion as an engine William J. Vitale, Jr., and other board of Civil policy. The first is an arrogant pre- members replied that the prayer gave moral tention ... the second., an unhallowed per- training for good citizenship. On request, version of the means of salvation." On these they said. am, child would be excused. grounds, Engel said, the First Amendment By adopting the Regents' prayer, schools forbids Congress tc, establish religion, the did not prefer or teach religion. New York Fourteenth forbids the states. courts held: but schools must not compel For Jewish groups: Prayer can never be any child to pray. In 1961 the Supreme "nonsectarian." Differences inits forms

UNCONSTITUTIONAL ACT OF FAITH:Grade-school students begin the day with a prayer. Nest. Kirk residents claimed that when state officials composed a school prayer they trespassed on the icligious gum maces of tlw First Amendment. Emphasizing separation of church and ___state...the-Scipreine-Coarvin-I-962 oullawed-state-prayers-in-public:schnidr(Erigelmj-Vifille).

dce iii OPPOSED TO BIBLE READING and recitation of the Lord's Prayer as daily rituals in public schools, Edward Schempp (left) and his family charged that these practices amounted to establishment of ;eligeo:: by the state. In 1963 the Court held both of the religious observances unconstitutional in public schools. and words go to the essence of faith; no governmental official has constitutional power to enter this realm. For the Regents: As far as separation of church and state permits, schools must be moral and spiritual guides against threats from "an atheistic way of life," from rising delinquency and crime. For Vitale and the board: Public schools should not have to give up "any recognitioneven on a voluntary basisof the existence of a Divine Being." _ For parents agreeing with the-board:-No group should "force all others to conform to their views" and demand "the total and compulsory elimination of God's name from our schools." Justice Black gave the Supreme Court's opinion in June 1962: A "solemn avowal of divine faith," the Re- gents' prayer was indeed religiousand unconstitutional, because the authors of the Constitution thought religion "too personal, too sacred, too holy," for any civil magis- tratetosanction. No government should compose 11,18 109 official prayers for Americans to recite. 1901 Dissenting. Justice Stewart thought the decision denied children the chance to share "the spiritual heritage of cur Nation." When lawyersfor two other school boards appeared in 1963. they praised the ruling in Engel v. Vitale but insisted that it did not apply to their cases. In their schools officialprayers had no place, although pupils read the Holy Bible and recited the Lord's Prayer every day unless parents 43.000 VOTERS 43.000norms wanted them excused. 7 .4 REPORSINTAIIVIS mlREPRE304701VEI Professedatheists.Mrs. Madalyn E. Murray of Baltimore and her son William aims ow ran &amain Unequal voting challenged the school exercises for favor- rights is Tennessee cast a Court case. In ing belief over nonbelief. Mr. and Mrs. 1901 eight counties had as many people as Edward L. Schempp of Abington. Pennsyl- Memphis and elected nearly the same number vania. wanted to teach their children Uni- of representatives. By 1930 Memphis' popu- tarianbeliefs without"contradictory" lation equaled that tl2I counties. Under the practices at school. As taxpayers and par- state constitution the city should have gained ents of students, they had standing to sue. more repre ientadves, but did not: so the rand Reviewing these two cases, the Supreme vote counted almost low times as much as the Court declared again that no state may pre- urban. Reviewing city voters' complaint that scribe religious ceremonies in its schools. this denied them equal protection of the that the Constitution stands between the laws, the Cows in 1962 held that fidget official and the altar. should hear and decide such claims under the Fourteenth Amendment Maker v. Carr). The PUBLIC ANGER over the Supreme late Chkf Justke Earl Warren looked back Court's powers and decisions ran high upon this as the most important and injbential in Marshall's day and in Taney's. Charles single decision in his 16 years on the cots". It Evans Hughes saw a third great crisis. Not opened the way to enunciation (in Perseids v. so long ago, billboards and bumper stickers Skutt) qf the "one person, one vase" principle called for Congress to impeach Earl War- and its enforcement by court order in many ren: attacks on the Court still smolder and related cases across the Notion. occasionally flare. Such turmoil comes when the Nation confronts new difficulties and new dangers, 1950 as well as new notions of what freedom means. The Justices review a critical case arising under the Constitution. as citizens debate the issuesitinvolves. Then the Court rules on questions affectingand diviiingthe whole people. The people judge the Court's opinion for themselves: inevitably they disagree. Critics have accused the Court of pamper- ing Communists and criminals. Southerners have denounced its rulings on race and civil rights: fresh protest has come from north- ern metropolises. divided into white sub- urbs and inner-city ghettos.Legislators have debated constitutional amendments 313,000 VOWS MAW VOTES 7U3 1111.011Masmves 31 107111 tromves to overrule the Court on reapportionment. I (i9 1 reasonably related to maternal health. Finally, for the stage after "viability," the state may prohibit abortion unless the mother's health is endangered. Dissenting, Justice White called this decision an "extravagant exercise of the power of judicial review." In the majority opinion, Justice Blackmun acknowledged the Supreme Court's full aware- ness "of the deep and seemingly absolute convictions that the subject inspires." Both landmark decisions came after the Court considered long and careful amicus briefs on what happens to the prosperous and to the poor, the many and the minorities. Both left the Justices di- vided. Both provoked bitter controversy among citizens. As both turn on questions that trouble the spirit, both raise issues that will come before the Court againunder a Consti- tution made, as Justice Holmes once noted, "for people of funda- mentally differing views." While it remains the supreme law of the land, Americans will argue about its checks and balances of power, its guarantees of liberty. No case presents these themes more clearly than United States. Petitioner, v. Richard M. Nixon, President of the United States. argued and decided in the summer of 1974. Felony charges had been lodged against former advisers of the White House; the President himself faced impeachment. Only by impeachment, argue.] his counsel, could the law apply to him. When the prose- cutor of the felony charges tried to obtain evidence in Mr. Nixon's possession, the President claimed solute privilege to keep from the courts anything he chose hhold. As in John Marshall's day, the Justices agreed to review a case of great import and political delicacywith the two key prece- dents rulings by Marshall himself. Sitting on circuit in the trial of Aaron Burr for treason, Marshall had held that a President "may be ... required to produce any paper in his possession," although a judge might agree that some papers contain matter unfit for public disclosure. And of course there was Marbury's case. Now a unanimous Court ruled that the President must obey a judge's order to provide evidence needed for fair trial of those accused: executive privilege, in this instance, must yield to due process of law.

LONG AS the Supreme Court remains the living voice of ASthe Constitution. it will have to say what the law is. This is "the very essence of judicial duty." by John Marshall's own definition. Other citizens will have to speak, with the Justices, to defend the principle James Madison proclaimed: "While we assert for ourselves a freedom ... we cannot deny an equal free- dom to those whose minds have not yet yielded to the evidence which has convinced us." For the Supreme Court alone cannot 'sustain the heritage of equal justice under law. Although the Court symbolizes the judicial power of the United States in action, it shares its highest duty with everyone who loves liberty. And, as Abraham Lincoln asked in 1861. "Why should there not be a patient confidence in the ultimate justice of the people?" ir) 113 va Within the Court Today

66 TH 0 UG HT t hey would, well, talk Latin Charles Evans Hughes on October 13, or something." The visitor had heard 1932, when he joined President Herbert argurunt at the Supreme Court for the Hoover in laying the cornerstone of the first time, in U. S. v.Nixon.On another oc- new Supreme Court Building. In those days casion, a hig;-.-school girl reported "shock" many had cause to doubt his words; since that a black-robed Justice could rock com- 1929 the country had been sinking &leper fortably in his high-backed chair and actu- into the Great Depression. ally laugh out loud. And a family on a sum- Five months later the Chief Justice ad- mer tour, admiring the Great Hall outside ministered the Presidential oath to Frank - the Courtroom, noticed a white-haired man !in Delano Roosevelt. By October 7, 1935, in a blue business suit: Chief Justice War- when the Supreme Court convened fir the ren E. Burger, who paused in his errand to first time inits new home, the national shake hands and welcome them. mood was less desperate. "Our remoteness." says the Chief Jus- Nations and empires have vanished since tice, "is a result, not an objective; it's just those days; but the Republic, though em- that we're so busy...." battled or distraught in a tumultuous world, To its majestic setting and moments ofhas endured. So has its faith, a stubborn sheer ritual, the Supreme Court brings its one. So has the Supreme Court, surviving distinctive manner of working in public its epic collision with F.D.R. and more than b..) listening ..o one lawyer at a time and ask- one onslaught in recent years. ing tough questions. Its atmosphere mingles Gleaming bone-white and austere among informality with dramatic tension. In a cityits distinguished neighbors on Capitol Hill, of bureaucrak.i, it keeps the directness of a its stately facade evoking the long glory of group of nine. It cherishes its courtesies. ancient Rome, the Supreme Court Building Pleasant-spoken guides convey this mood imposes a mood of decorum. Nothing less when they explain the Courtroom to mem- than a bedrock issue such as U. S. v.Nixon bers of the public. No, there's no jury; there or the question of the death penalty brings are no witnesses; the Justices don't needout spectators to crowd the white plaza them because they review the record ofbeforeitand shout encouragement to what happened in some other court. counsel as they enterand even then the The guide points out the sculptured mar-sense of order strikes observers. ble frieze overhead: to your right, on the That aura of formality is no accident. south wall, great lawgivers of the pre- When architect Cass Gilbert submitted Christian era; to your left, those of Chris-his design in May 1929, he planned "a build- tian times. A note of pride enters his voice ing of dignity and importance suitable ... as he indicates the panel over the mainfor the permanent home of the Supreme entrance, the one the Justices face: PowersCourt of the United States." Gilbert had of EvilCorruption, Deceitoffset bybeen chosen by a commission led by Chief Powers of GoodSecurity. Charity, Peace,Justice William Howard Taft. Associates with Justice flanked by Wisdom and Truth. were Cass Gilbert, Jr.. and John R. Rock- "The Republic endures and this is theart, with executive supervision by David symbol of its faith." So spoke ChiefJustice Lynn, Architect of the Capitol.

WITH PRACTICED COURTESY,a staff member explains details of the Courtroom to visitors from the Justices' chairs of varying styles, chosen for individual comfort, to the ceiling's motif of lotus blossoms. emblems of endurance. In the frieze above the bench, the central figures symbolize the power of government and the majesty of the law. . I t11611. a 11.111. .1111,01 41.,4111.140, 4 t) 115 114 JOSIO. ISM

Into the building the architects put about sparkle in the sun. And since 1973, new three million dollars' worth of marble. Forlighting, new paint, and new gilding have the exterior walls alone a thousand freight- brought the ceiling to a brilliance time had car loads of flawless stone came from Ver- dimmed since its installation. montincluding a single 250-ton slab des- Neither Taft nor the architect lived to tined for sculptor James E. Fraser's allegor- see their dream building completed. Taft ical figures at the entrance. died in 1930, Gilbert four years later. Georgia marble was chosen for the outer Not everyone liked the new building. As- walls of four courtyards that divide the sociate Justice Harlan Fiske Stone, who building into a cross-shaped center core later became Chief, at first called it "almost and a gallery of offices and corridors. Nearly bombastically pretentious ... wholly inap- square, the resulting structure is 92 feet propriate for a quiet group of old boys such high and stretches 385 feet on its longest as the Supreme Court." One of the old boys side. The interior walls are faced withsaid he and his brethren would be "nine Alabama marble. black beetles in the Temple of Karnak." Opposite the formal entrance, at the east Anotherundoubtedly thinking of exotic end of the aptly named Great Hall, is the pomp rather than domestic party symbols Court Chamber proper-82 by 91 feet, with remarked that the Justices ought to enter a coffered ceiling 44 feet high. Gilbert it riding on elephants. walled this imposing room with Ivory Vein Such t.omments suggest how different marble from Spain. For the 24 massive men have regarded their own remarkable columns he insisted on marble of a particu- positions of power, prestige, and responsi- larly delicate tint, called Silver Gray or bility in the life of the Nation. Off the bench Light Sienna Old Convent, from the Mon- thei: successors show a similar concern tarrenti quarry in Italy. An expert made a to keep a sense of human perspective in special trip to the quarry to gee whether it theirmarble temple. As Chief Justice would be possible to remove such huge Burger has said, "This is a select company chunks as the plans demanded. not because we are all-knowing, but From Italy the rough stone went to a firm because we were selected and we are here." of marble finishers in Knoxville, Tennessee, The President appoints Justices with the who dressed and honed the blocks into 72 advice and consent of the Senate, which slightly tapered cylinders,11feet in cir- takes its duty soberly. Since 1789 the Sen- cumference at the widest. Three sections ate has rejected roughly one out of five for- went into each 30-foot column, topped by mal nominations, and argued others at an Ionic capital. length. For a solid reason: As one Justice Darker marble from Italy and Africasays, "Once we're here, they can't fire us." gives color to the floor, and against this rare Article III of the Constitution provides stone the room gains richness from its fit- that theJ ustices, and all other federal judges, tings: tones of red in carpet and upholstery hold their offices "during good Behaviour." and heavy draperies. highly polished luster(And while they serve, their pay cannot be insolid Honduras mahogany, gleamingcut.) They may resign at any time, or retire bronze lattice-work in gates to the side cor- when eligible. Once confirmed, however, ridors.Beyond the windows, fountainsthey may be removedin accordance with

TRIUMPHS OF MANKINDin developing u just I society blazon the bronze doors at the main west entrance. Eight relief panels trace the growth of law from ancient Greece and Rome to the young United States. Each door weighs 61/2 tons. and slides into a wall recess when opened. Tortoises (left). chosen as symbols of righteousness and longevity. support bronze lamp standards in the foyer. MUM . 116 II f , _ ---r- 0'),-;- Ir Ttit17 for ;r -7

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Article II- -only h!, "Impeachment for. and Conviction !reason, Bribery, or other high Crimes and Misde- meanors.- In effect, theserve for life. Never in the Na- tion's histor % hasJustice left the bench convicted. When he takes his oath to uphold the Constitution and dons his rohc. a Justice can enjoy an almost Olympian detachment Members of the ( hurt shun much of Wash- ington's sacra; life. and tind it prudent to keep relation- ships kk oh legislators and Presidents courteous but at arm's length. Of course. the Court , budget must he supported before ( ongress. and codes of judicial con- ductin cc Justices to cypress their vievs on matters affecting the administration of the judicial system. But by the %et.% nature of ht. position. a Justice escapes the pres- slues and tensions that ye v many public servants: the alders or requests bond tither officials. the demands from constituents,thetactfulor ham-handed approaches om I 'MI% sts. At the ( curt t he strongest pressure takes a subtle loran, felt in the mind or cow. ...ience. Associate Justice .I. Brennanlr., has detinekl it as the aware- ness of fallible human being. "that their hest may not he equal to the challenge." single close case eiterts its pressure. A rising case- 10,111 hetOitetp. H.I he pressure makes for an air of aloof- ness. ,har IN part discipline. pant illusion. \, C.1 Nt name ( ourt :linking ourselves. says one ofits members .1 hid.- is the single eeeption. )(ou feel like .,1% nig ill" %%hen %oil meet them in the hall.- t. (unwell! 1t.itr Menihefbut in fact 4. 4111St ICe iii hief .1ustice- Icm.ains the standard greeting.

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NATIONAL 4t04PAIT nErotviER 01' DEcIstoNs Henry Putzel..1r.. supervises publication of I Reports. the otfleial record of the Court'v work. Secret rulings and -cla. have found no place in the procedure% of the government's judicial bra,

Formality in the Courtroom and the pub- season: "This place lished opinion pays homage to tradition: sure cooker and it "my Brother Douglas" or "my Brotherof men.- Marshall'' or "my dissenting Broths.:rs." It Even after the sir also emphasises the public scope of issues Court schedule for that set the Justices quarreling in print, po- tions follow them litely and from the heart. That dignity gains study. In reality the talue IA hen the Court considers a question as delicate as the. bus,i.ng of schoolchildren MORE THAN between suburb, and inner citywhich. work dailyit because the majority found no constitu-Building. Among tional iolation in the existing situation, it Court appoints to e foreclosed for the Detroit area in the case tinning of its affairs: announced on July 2.c.I 974. of Decisions, the ! I Cllsi011 s rises at the Court as its For all professioi term progresses. By statute the term begins Michael Rodak. Jr. on the first Mondat in October. By custom the link between th it ends when the work is done. normally by world outside. He a. hiltI. Spring brings the notorious end-of- a rising flow of pal term crunch.Justice Brennan tells of takirg agenda as they chef up an end-of-term disagreement with the the incoming cases. late Justice Hugo Black. who said of the InI 941t he Cou cases; in 1973, it had 5,065. To deal with by a 1967 case, In re Gault. (The petitioner the growing workload and prevent a back- misspells it "Gualt," but he has chosen the log, the Court has increased staff assistance case in point.) and intlwary to what many consider the The Clerk's staff separates these from limit. Justice William H. Rehnquist talks the paid cases, noticing changes in passing: with unmistakable repugnance of the possi- "Isllw we're getting women's lib cases, bility that any case might get "anything less electronic bugging cases." Staff routine than the best attention from any one of the digests them all, summarizing the legal nine." Of the 1973 case total, more than arguments. half came from the poorin forma pauperis The Clerk also receives lawyers' applica- people unable to pay the costs. Of such tions for admission to the Supreme Court cases, about 27 percent are from inmates of barsome 5,000 a year. He schedules the prisons, claiming some violation of rights. introductions of candidates appearing in Mr. Rodak pulls samples from a si;M in person; and after the Chief Justice has a room full of files. A convict in Texas es- greeted them, the Clerk swears them in as caped the death penalty under the Court's members of this bar. decision in Furman v. Georgia, he sends a As administrator and business manager, motion, carefully lettered out by hand, for a the Marshal, Frank M. Hepler, is respon- new trial. A young man in Wyomingar- sible for personnel and financial matters, rested at 17 for auto theftclaims he was including payrolls and bills, and for supplies. denied due process of law, specifically the He coordinates ceremoniesmemorial ser- protection the Court extended to juveniles vices for a deceased Justice, a successor's

MUCH ADMIRED BUT SELDOM USEDstairs spiral through five floors. Two elliptical staircases, closed to the public, fascinate visitors. Despite such showpieces, the building cost nearly $94,000 less than the $9,740,000 appropriated for it. MAMMAL GEOGRAPHIC PHOTOGRAPHER JOSEPH 1, SCHERSCHEL N.G.S,

,, MIIMONS, SlOSNISINIC MOSOf. PPPPPP JSIPOSa SIMI, 4) c % installation. He directs the Court's police for opinion-writing, with two weeks of "sit- force.He arrangesaccommodation of tings" for Monday-through-Wednesday ar- dignitaries and other visitors, and is the gument of cases. huilding superintendent. Spectators are admitted as seats become When the Court is not sitting. visitors see available. the two beautiful spiral staircases as well U. S. v. Nixon would have jammed the as the Courtroom and Great Hall. BronzeCourtroom many times over just with gates and oak harriers close off the corri- VIP's, but the Justices insisted on keeping dors leading to the Justices' chambers on some space for the public, first come first the main floor. served, as usual. On the ground floor. special exhihits All visitors must check coats, attache ha% e hecorue an extra attraction for visitors cases, umbrellas, cameras. The Marshal in recent '.ears. and his aides m. politely find clothes too New colors relic% e the austerity of mar- informal for a Court session. They discour- ble( ireen plants in the corridors and flow- age the presence of smali children"Oh, s in the court%ards are a protect of Chief younger than about six." says a police Justice Burger. Gold and deep red replace officer. "But the young ones behave: they institution -pale -green in the renovated cafe- seem to catch the atmosphere.- to la. which is open to the public but re- Constantly during a session the aisles are scr%es militia% time for the Court staff in patrolled to see that no one breaks the rules the interest of efficiency A snack bar sup- by sketchingpermitted only in the press plements the cafeteria. section) or whispering or.asofficially 'sums who want to see the Court at described, expressing "favor or disfavor" work shoulll check its schedule in advance. at arguments or opinions. .401%it alternates two weeks of recess, 1 he Marshal has jurisdiction over Court *-).) IN HIS ROLE AS LEADERof the third branch AMERICANAfrom the Supreme Court's past of government, the Chief Justice confers often goes on display: The Court's first Curator. with its key officials as well as with officers of Catherine Hetos, prepares an exhibit of the Supreme Court: from left, the Marshal. architect's sketches, sculptural studies. and Frank M. Hepler: the Clerk, Michael Rodak, plans for the majestic building. Chief Justice Jr.; the Reporter of Decisions. Henry Putzel. Burger discovered a plaster model of the Jr.; the Librarian. Edward G. Hudon. At the building in a storage room in 1969 and Chief Justice's right sits his secretary. Mary concluded that such memorabilia belong in Burns: at his left. Administrative Assistant areas open to the public. Now, portraits and Mark W. Cannon, with Rowland F. Kirks, busts of former Justices enhance the corridors. Director of the Administrative Office of the while documents and such prized relics as U.S. Courts. and Judge Alfred P. Murrah. John Marshall's courtroom chair occupy the .second Director of the Federal Judicial Center. ground-floor exhibit area.

pages. whom he appoints. In years past, all the pages were chosen when they were high-school freshmen. Since 1973. however. night law students have been among the young men at.- women selected. Linda Carlton was the first of these. While Court is in session, the pages wait alertly on small straight chairs behind the bench. They move smoothly and swiftly to pass notes from Justice to Justice. They may disappear behind the red draperies to deliver a message, to fill a water glass at one of two fountains on the rear wall, or to ob- tain reference material from the library. They may have unusual errands, as Justice OPENING FORMALITIES link the Harry A. Blackmun recalls from his first current day to the past. The Marshal day on this benchJune 9, 1970: or Deputy Marshal acts as Crier. A few "I had taken my seat, and was examining minutes before 10 am., Crier and Clerk, things. I pulled open a drawer in the bench,formally dressed in cutaways, go to their and found some cough drops. And a copy ofdesks below the ends of the high bench. the Constitution, stamped '0. W. Holmes' Pencils, pens, papers, and briefs are waiting and signed by Justice Frankfurter, a suc-at each Justice's place. cessor in this seat. The Marshal brought me At their tables, attorneys glance over a Bible to signpresented by thefirst notes or confer softly. A young man may Justice Harlan and signed by all the Justices fidget slightly, smoothing hair that falls to since. Suddenly Byron White was leaning his collar, while a veteran checks his watch. over to me, whispering. 'Harry! Harry.Seconds will count, for today each counsel where's your spittoon?' He snapped ahas only 30 minutesunless he or she has a fingersoftlyfor a page. 'Get the Justicevery unusual case. his spittoon!' Meanwhile, the Justices themselves, sum- Today the spittoons serve as wastepapermoned by buzzer, have gathered in their baskets. Before each chair at the four coun- conference room. Each shakes hands with sel tables lie white goose-quill pens. neatlyall the others, even if they were chatting a crossed: many lawyers appear before thefew minutes earlier. Chief Justice Fuller in- Court only once. and gladly take the quillsstituted this unvarying custom as a sign that home as souvenirs. Snuliboxes, once indis-"harmony of aims if not of views is the pensable, vanished long ago, along with Court's guiding principle." Then they don arguments that lasted for hours and soared their black robes and assemble behind the to splendid heights of oratory. red velvet draperies. IZ6 127 Promptly at 10 the Crier brings down his At the Chief Justice's immediate right gavel. Everyone rises instantly as he in- sits the senior Associate, William Orville tones: "The Honorable, the Chief Justice Douglas, the "hiking man" who completed and the Associate Justices of the Supreme 36 years of service on April 17, 1975. No Court of the United States!" Justice in history has served longer. A Even on routine days these moments colleague says, "Nobody knows the cases never lose their drama. It rises to throat- of those 36 years like Bill Douglas!" drying intensity on occasions when great Appointed by Roosevelt in 1939, he has issues are in the balance. written the story of his early life in a notable Simultaneously. as the Crier speaks, the autobiography, Go East, Young Man, and nine Justices stride through openings in the given his own vivid account of practicing curtains and move to their places. The Crier law in New York City and Yakima, Wash- chants his call for silence: "Oyez! Oyez!! ington, teaching at Columbia and Yale, Oyez!!!" From the centuries that Anglo- chairing the Securities and Exchange Com- Norman or "law French" was the language mission, and acquiring his celebrated zeal of English courts, the word for "Hear ye!".for conservation and for outdoor life. survives. At the Chief's left sits William Joseph Steady-voiced, the Crier continues: "All Brennan, Jr., formerly a judge of the New persons having business before the Honor- Jersey Supreme Court, a Democrat ap- able. the Supreme Court of the Unitedpointed by Republican President Eisen- States, are admonished to draw near and hower in 1956. give their attention, for the Court is now sit- To Douglas's right: Potter Stewart, of ting. God save the United States and this Ohio. former judge of the Court of Appeals Honorable Court!" for theSixthCircuit, youngest federal The gavel falls again. The Justices and judge in the country when appointed at 39, all others take their seats. Visitors unac- named to this Court by Eisenhower in 1 958. quainted with the Court can check identi- Thurgood Marshall. born in Baltimore, fications against a card-size seating chart.judge of the Court of Appeals for the Sec- (As men who, for their power. get remark- ond Circuit from 1961 to 1965, Solicitor ably little publicity. Justices sometimes go General from 1965 to 1967. and named to unrecognized for coffee in the cafeteria.) the Supreme Court by President Lyndon B. On their high bench the Justices suggest Johnson in 1967. the variety of American life: men of differ- Lewis F. Powell, Jr.. Virginian, in pri- ing backgrounds and philosophies, temper- vate practice in Richmond from 1932 until aments and accents. 1971 (except for war service, 1942 to 1946), In the center sits Chief Justice Burger. a coming to this Court in 1972 by President native of Minnesota. a lawyer in private Nixon's appointment with a long record of practice there for 21 years. Assistant At- leadership in legal circles. torney General of the United States for From the ChiefJ ustice's left, after Justice three years. a judge of the Court of Appeals Brennan: Byron Raymond White of Colo- for the District of Columbia from 1956 to rado. former Deputy Attorney General. 1969. He came to this Court in June 1969. appointed to the Court in 1962 by Presi- appointed by President Nixon. dent John F. Kennedy. Seniority determines the seating of the H Irry A. Blackmun. in practice in Min- eightAssociate Justices, alternating be- nesota for 16 years, counsel to the Mayo tween the Chief's right and his left. (For the organizations for a decade, judge of the ordering from a spectator's vantage point. Eighth Circuit Court of Appeals from 1959 see page1 12.1 to 1970. named to this Court by Nixon.

IVSER COURTYARD.one of four. offerA a springtime setting /*ormlidday break enjoyed by law clerks and secretaries, messengers and pages, with !snacks available .from carry-out facilities on the ground floor. "YOU Nee," says one of the Court's miff members,this place is something More than nine 11verpowering presences.- I .AA. n 111 --/ . .

ddr William H. Rehnquist, born in Milwau- kee, a lawyer in Phoenix from 1953 to 1969. Assistant Attorney General until1971, taking his seat here on the same day in 1972 as Justice Powell, also a Nixon appointee. Though muted by the occasion, individu- ality shows clearly as the Justices begin their work. Usually, as the first item of busi- ness, the Court admits attorneys to its bar. Then, if an opinion is ready for release, the Chief Justice calls for it, and its author an- nounces it. A dissenter may speak for those Justices who disagree: "... we think the Court muddies the waters further... we would affirm the judgment below...." Probably many visitors expect the pro- ceedings to be solemn, almost holy, but be- yond laymen's understanding. "Oh, some cases are extemely technical." remarks Justice Stewart disarmingly, "tax or patent cases, and I wouldn't understand them if I hadn't done the homework. But many of them anybody can comprehendthe capital punishment cases, for instance. And our procedure's simpler than other courts' more informal." Argument is easier for all to follow since the Justices approved a change in the shape of their bench. "I remember when I used to argue cases here." a senior lawyer recalls. "I would get two questions at once, from opposite ends of the benchthe Justices couldn't see or hear each other." In 1972, at the suggestion of the Chief Justice, the bench was altered to its present shape, with two wings each set at an 18-degree angle, a form that has been widely used in Ameri- can courts since the mid-1950's. Even the technical cases can stir alert attention as the lawyer begins"Mr. Chief Justice, and may it please the Court... " and developshis theme"... insurance companies are entitled to justice like any- body else...." The questions start. Res- onant. low-pitched queries from Justice Rehnquist:Tidewater-Richmondinflec- tions as Justice Powell says, "I don't want to interrupt your argument, but...." Justice Stewart leans forward, cheek on right hand: "I've heard it, and read it, and perhaps even written it many times Justice White rocks briskly, swings for- ward to press a line of questions, stirs a I 30 CRAFTSMANSHIPand style concern specialists behind the scenes. In the carpentry shop, Edward F. Douglas (left) and Frank Howarth build a Justice's chair; the shop produces custom furniture for the Court, such as finely worked bookcases in the library. Below, Ted Ateherson trims the hair of Barrett McGurn, the Court's public information officer.

.1 in a statute: "... the Congress my things that 1 wonder at...." distraction on a fine spring day: breaks off in midsentence. ducking ibing and swatting with both hands p? a heeland Justice White sym- : "les very dangerous here." veiled ruefulness a lawyer remarks. ny time is running short": or the Istice may offer a gentle reminder. !I. you are now using up your re- ne." Or the other way around: "We en much of your time with our ques- 'onstitution r "all Cases thlie Minis- , Court sits s no appeal. s are tiled t sheer hulk pia in 1952

133 over water from the Colorado River, the Court appointed a special master in chan- cery, George I. Haight of Chicago, to take evidenceandmakerecommendations. Haight died in1955; his successor was Simon H. Rifkind of New York City. Fro 1956 to 1958, Rifkind heard 106 witnes111 aiiti took depositions from 234 others. The completed trial record covered more than 26,000 pages. Briefs and other docu- ments filed by the states took about 4,000 more. Rifkind's own report, 135,000 words, went to the Court in January 1961. The Jus- tices heard 16 hours of oral argument in the fall of 1961, six hours more in November 1962. The Court's decision, in 1963, fa- vored Arizona. More numerous, but mercifully shorter, are cases from state courts. If any state tribunal decides a federal question and the litigant has no further remedy within the state, the Supreme Court may consider it. Most commonroughly two-thirds of the totalare requests for review of deci- sions of federal appellate or district courts. "Most of the time," observes a Justice, "it's the rights of someone we'd never meet...." The great majority of cases reach the Supreme Court as result of its granting petitions for writs of certiorari, from the Latincertiorarivolurnus, meaning "we wish to he informed." Normally the "writ of cert" says in effect to an appellate court, "Send us this case you decided recently." In very rare in- stances a writ of certiorari before judgment says, "Send us this case you haven't de- cided yet." As in U..5. v. Nixon, it enables the Court to act with maximum speed in unusual cases of great public importance. But "each case has supreme importance to the people involved," as Justice Stewart observes, and the number of petitions filed rises from year to year. Justice Brennan noted an increase of 75 percent in his first seven years with the Court. Filings went from 2,185 in the 1961 term to 3,643 in 1971 and 4,640 in 1973. Deciding which cases to decide is a load in itself. Each Justice determines how he will vote on each certiorari petition, usually with the help of a law clerk's memorandum. Since 1972, five Justices have been utilizinga 134 34 "cert pool" system, open to any Justice who wishes to join. Clerks from their chambers take turns writing a "pool memo" on a batch of petitions. This memo circu- lates among the fiveBurger. White, Black- mun, Powell, Rehnquistand each can use a clerk of his own staff for further research. The other four Justices prefer a memo from their own clerks or read the petition itself. Roughly 70 percent of all petitions reach the end of the road on the vote at this stage, without further discussion. Of the cases remaining, the Justices screen the problems closelyby a process that they explain freely in outline. They meet on Wednesdays and Fridays during term time in a conference room as secret as any in the government. In a capital full of classified matters, and full of leaks, the Courtkeepsprivatemattersprivate. Despitethespeculationsof reporters, details of discussion and voting are simply not revealed. No outsider enters the room during con- ference. The junior Associate Justice acts as doorman and messenger, sending for reference material, for in-tance, and re- ceiving it at the door. Five minutes before conference time, 9:30 or 10 a.m., a buzzer summons the Justices. They exchange their ritual hand- shakes and settle down at their long table. The Chief sits at the east end, the senior Associate at the west. Before each Justice is a copy of the day's DRAFTI agenda. Each decides for himself when he escapes should disqualify himself from taking any reserve( part in a case. The Chief opens the discussion, sum- marizing each case. The senior Associate Para speaks next, and comment passes down the tight c( line.Voting follows the same order ofitythi seniority. To qualify for review, a case must ing as get at least four votes. age ncie Counsel then submit their briefs andcourts. records so each Justice receives a set two record; or three weeks before argument. From these public; the Justices often make bench memos that record. highlight facts and points of law and ques- lished, tions for the lawyers. Minute ( "I wonder," muses Justice Blackmun,in the "if we always remember how much power have th we exercise just in our questioning.") with an 136 processn. Criticismespecially on such only to the Justices and their law clerks but highly charged issues as abortion. obscenity. also to members of the Supreme Court bar, and the death penaltyranging fromrea- members of the Senate and House.gov- soned analysis to rage. "Dear Sir: Youare a ernment attorneys. andby special skunk!" quotes one Justice wryly. "Name- arrangementvisiting scholars and jour- calling." says another, rather sadly. "comes nalists who cover the Court regularly. with the job.- Professioeal writers themselves. Justices By statute the Chief Justice's duties ex- spend hours of hard work on draft opinions. tend well beyond the Court and his position When an author is satisfied with his docu- as its presiding officer. He is also responsi- ment. he sends it to the print shop, which ble for the administrative leadership of the works under rigidsecuri:..rules on the federal judicial system. He is chairman ofground floor. Often. on getting his proofs, theJudicial Conference of theUnited the writer finds his work has only begun. States, a 'board of trustees" for the federal He circulates copies. numbered for securi- courts. He supervises the Federal Judicial ty. for the reactions of his colleagues. Center with its programs of research and Constantly the Justices exchange com- education. and the Administrative Office ofments, by memo or at the lunch table. To the United States Courts. "housekeeper" discuss ideas and wording by telephone. and statistician for the system. And he serves as chancellor of the Smithsonian Institution, and chairman of the hoard of the National Gallery of Art. His perqui- sites. accordingly. include four law clerks. extra secretarial help. and a governme it car with chauffeur. In 1972. for the first time. the Chief Justice acquired an Administrative Assist- ant. Mark W. Cannon. to help meet respon- sibilities and needs of the federalcourt system. The Court has also gained two Legal Officers. or staff counsel: James Ginty and Susan Cioltz.. Ginty defines the role as one with "no formality to ithelp- img the Court or any Justice any waywe k:an with legal and judicial detail." Whenever a Justice calls for legalor historical references, he has the help of Edward (i. Hudon. librarian and officer of the ('nun. and his staff of 14. Theseexperts provide research materials froma library of more than 210.0410 sulumes, acce.sible not

"ORM P %PER% Of (he a 1Pnirrelif e /10/111/ n01140/441, rnrnfoo hrief--an out the e%' return Irian hinton a f radar in the regular fer Herr the% determine to hre h faev to two ern. to hat deer wont to hand don nonierent e e lent Alt in Wright ditrthate% Nei. hr nil! leave then the Judgel f ante hul the /14,711,r .4 1,,, 11111' lobo in or out nirficaVe% al hed0q,r, to tategisard the ahcolute privacy of the ( onrrt.% l'oonftdentral dice It 4 it. )11 III 1 3 7 they use a private line that does not go visions are in handa master proof of each through the switchboard. Draft dissents finished opinion goes down for printing. On may prompt revisions or change votes. the day of release, final copies go to the even enough to create a new mikjority. Clerk for safekeeping. and to the Reporter Moments of diversion lighten the routine: of Decisions: Henry Putzel, Jr.. with a staff tabletenniswithclerks:forJustices of nine, writes headnotesshort analytical Stewart, Rehnquist. and the Chief, carol- summaries of the opinions. He also super- singing at the Court's Christmas party; for vises publication of United States Reports, Justice White. a star athlete who earned hisofficial record of the Court's work. way through Yale Law School as a profes- In the press room. reporters wait swap- sional halfback, basketball in the Court'sping shop talk over coffee in throwaway small gym. cups: "... this crazy lawyer ..." "That the Special duties interrupt the routine. Each upstate sludge case?" ... "Notworth member of the Court has jurisdiction over getting excited aboutrights for women one or more of the I I federal judicial cir-...""... Congressionalaction ...""I cuits. As Circuit Justice he may issue in-stand with Marshall and Douglas." junctions. grant bail, stay an execution. Public information officer Barrett Mc- But finallywhen all cot rections and re- Gurn distributes the journalists' copies

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138 JUSTICES of the Supreme Court in 1975, these nine members complete a list of /00 Judges who have served since 1790. From left: seated, Associate Justices Potter Stewart. William 0. Douglas: Chief Justice Warren E. Burger: Associate Justices William J. Brennan, Jr.. Byron R. White: standing. Associate Justices Lewis F. Powell. Jr.. Thurgood Marshall, Harry A. Blackmun. William H. Rehnquist. Nominated by the President and confirmed by the Senate. the Justices hold office during "good Behaviour--Pr life or until retirement.

saw fit. absolute privilege to withhold his records. Briefs in his behalf cited the Con- stitution's separation of powers. Briefs for the United States stressed the unique posi- tion of Special Prosecutor Leon Jaworski, the historic duties of the courts, the Con- stitution's structure of checks and balances. Because the Supreme Court called for argument on technical issues of jurisdiction and procedure. these took on interest far beyond the ordinary. They might fore- shadow the decision that would resolve a constitutional crisisor reveala crisis beyond the peaceful ways of law. "Nothing happened." said one bemused spectator after the three hours of argument on July 8. -It was so ... ordinary." re- marked another. The Court's formal ritual and informal manner had not varied. Texas drawl in his voice. Mr. Jaworski declared that ..... boiled down, this case really presents one fundamental issue: Who is to he the arbiter of what the Constitution says?" The President was making himself GS the sole judge: he "may be right in how he reads the Constitution. But he may also be :h wrong.- Id Justice Stewart. matter-of-factly: "Well. le then. this Court will tell him so." .s. More than one a minute. questions came from the bench. n- Justice Douglas saw at "the heart of to this case" the rights of defendants in a k- criminal trial. The President's advocate. :d James D. St.Clair. urged the Court to a- avoid matters pending in impeachment: Justice Brennan commented dryly. "Any m decision of this Court has ripples.- ie JusticeIiirshall pressed Mr. St. Clair to 1 4 0 141 concede that the case was one for this lighted Courtroom beyond, quietly register Court's decision; no one asked bluntly if their names. the President would obey its order. Justice Powell, even-toned, forced the issue of ON A GRAY and muggy July 24, a tense absolute privilege and secrecy: Even ina crowd, assembled on short notice, filled criminal conspiracy? Yes, said the Presi- the Court Chamber. As the hands of the dent's lawyer. "even if it's criminal." clock inched pastI I, the cry of "Oyez!" Seasoned lawyers do not escape tension rang out. On this occasion the gravity of the here. Once Mr. St. Clair with a slip of theopening never altered: Justices and pages tongue asked the court to uphold Judge alike sat impassive. With somber dignity Sirica: and Mr. Jaworski, in his effectively the Chief Justice took note of the death "of low-key argument, momentarily overlooked our beloved colleague." the fact that he represented Judge Sirica's Then he went on to announce the opinion position. he had written for a unanimous court. "Nar- Only 30, but experienced in this Court-row." some commentators called the deci- room, assistant prosecutor Philip A. Laco-sion later. It was, in ruling that here the vara contributed a more formal eloquence: President's privilege must yield to the de- '... this President is not in a position to mands of a fair trial. "Broad," others called claim... privilege.... These conversations it.It was, in reaffirming "what was said in ... were in furtherance of a criminal con-Marburg against Madison"that it is "em- spiracy to defraud the United States phatically the province and the duty" of this Surely no charge more sensational had ever Court "to say what the law is." For 17 come before the Court. minutes the summary moved gravely on. Then he discussed with the ChiefJustice, "Accordingly, the judgment under review is as if in a seminar, the fundamental prece- affirmed." The gavel fell. dent: Murhury v. Madison. "A sledgehammer decision." one news- At 1:04 p.m. the Chief J ustice closed the man called it that night. session: "Thank you. Mr. St. Clair. Thank On August 9 President Nixon resigned. you, Mr. Jaworski and Mr. Lacovara. The publication of three conversations "The case is submitted." from the disputed 64 had brought his term The crowd streamed out into the sun: to an end. At noon that day the Chief Jus- more than 1.500 had obtained at least a five- tice administered the oath of office to the minute share of the occasiona law profes- new President, Gerald R. Ford. sor, a Japanese reporter, a nun, a girl with Observers abroad commented that the tan shoulders bared by a sunback dress, a entire episode not only reinforced the rule white youth with bushy Afro haircut,a of law in the United States but also en- middle-aged black man in a cream-colored hanced the position of the judiciary in other business suit. Headlines took up the issues: countries. Few events in a long history have "Shun (kite Case. St. (lair Asks" or "Ja- underlined so sharply the Court's role as worski: Constitution Is in Peril." The Na- guardian of the Constitution. tion waited. Interviewed outside the Court on the day Death claimed Earl Warren, retired Chief of decision, a tourist from Waco, Texas, Justice, on the night of July 9: the Court told a television reporter that if the Supreme paid him a tribute without precedent. His Court says it, it's the law. On such assent casket, flag-covered. was placedin the rests the paradox of America, as President Great Hall to lie in repose, his chair near it. Ford has stated: NIemhers of his profession and of the public "Our great republic is a government of came, to pause at the bier, gaze at the laws and not of men. Here the people rule."

%%1%.E.5 0F. THEj('sticEs. vowned for a larmal entertainment. gather in the East Conference Room front left%,.ated. Alr%..tewart. 1)ouglaA. Mrs. Burger. Alrs. Brennan: standing. R,Itnqui%t. Blat.Arrut. .t1r%. ,tfarshall, ,tfrs. White. The Court's receptions and ,Jinnry honor Skiing:tithed men and wonten of the legal profession. .11, 1. Nie I .1 2 143 The Federal CourtSystem

44 t's the American way to say, 'There ought results count all the more in district courts to be a law!' And Congress passes a law because about nine-tenths of all federal on civil rights, or environmental pro- cases end at the trial level, without appeal. tection, or consumer protection. Common Only about 15 percent of defendants in sense alone will tell you, you'll nave more federal criminal cases actually go through lawsuits. a trial. Many other cases are settled by plea "Everyone wants instant justice." muses bargaining: The defendant's lawyer nego- District Judge Aubrey E. Robinson, Jr., tiates with the U. S. attorney for something "like instant therapy, or instant food. less than the stiffest possible charge, and "But as life gets more complex, legal rights the defendant pleads either guilty or nolo get more complex. And we're a complex contenders "I do not wish to contest it." people, of varied backgrounds. There will Judge Walter E. (Beef) Hoffman, who always he a time lag in the judicial resolu- presided in the case of Vice President Spiro tion of disputes." T. Agnew, points out that such bargaining is Comments on the "law explosion" of re- nothing new. "Lawyers have made discreet cent years come from many of the 400 approaches to other lawyers for years," he judges sitting in the federal judicial system'sobserves, but the realities of plea negotia- 94 district, or trial, courtswhere case fil- tion long went unacknowledged. That, he ings have doubled in 20 years. In fiscal 1974 says, permitted the double vice of invisible the district judges received 103.530 new proceedings and lack of candor. Now the civil cases and 39,754 new criminal cases.judge makes the proceedings a matter of The backlog exceeded 100,000. recordfor later use, if need be. With a greater burden than ever before, Appeals in the federal system have in- the federal judicial system has entered acreased, of course: nearly 4,000 in fiscal period of reform and innovation. 11. 1968 1960, more than 16,000 in 1974. The 11 Congress created a system of U. S. magis- courts of appeal sit to correct errors at the trates: in 1974 they handled nearly a quar- trial level or in administrative agencies, and ter of a million matters that district judges act in effect as regional Supreme Courts. would have had to deal with, such as pre- Here the number of judges varies, de- trial discovery proceedings. Experiments pending on caseload, from three in the First with videotape promise new and time-sav- Circuit to 15 in the Fifth. In each case, how- ing ways of taking testimony. Computerever, they work in panels of three or more: programs help judges and court clerks keep and the odds are, says Judge Ruggero J. track of their caseload, or improve the pro- Aldisert of the Third Circuit, that "the ju- cedure for calling jurors. dicial buck stops here." In the District of Columbia. ore unhappy Of 1.280 cases decided by his court in systems analyst spent a month cooling his fiscal 1972, the Supreme Court granted only heels in the jury lounge. Exasperated, he four petitions for review. "The Supreme offered to back up with computer tech-Court's always above us in theory," he niques a study the court had undertaken on says, "but in practice this is the highest juror utilization. Resulting reforms saved court you can get to by right." time for all concernedand money. From the public generally, the courts of Such measures are especially important appeal get little attention. "In some of the because no one wants apparent efficiency most controversial cases." Judge Aldisen at the price of injustice, and the painstaking remarks, "there's nobody present but the techniques of courtroom questioningtech- lawyers. and the press coverage tends to be niques that John Marshall would find fa-skimpy even on interesting cases. At the miliarsimply cannot be hurried beyond peak of Watergate. we held that the Presi- built-in limits. Fair procedure and sound dent may wiretap a foreign spy without a 144 14;i court order. The press slept through it.- CECIL LOCAMD.Ams ANION NEWS f;::St But law schools, he points out, act as a "far AV *. ,Aat highly critical public, and analyze appellate .a.416.74(.411 decisions "unmercifully."

As a source of self-analysis and research, ligtor, Ne,..111 the Federal Judicial Center has played an increasingly important role since Congress founded it in 1967. To the parlors of Volley Madison's old home on Lafayette Square in silos,. Washington. D. C., it brings judges from all over the country. They discuss more effec- tive ways of working with clerks or proba- r tion officers, or the painful topic of sentenc- ing. They share grievances and gripes. Seminars for newly appointed judges ease an awkward transition 1-All of a sudden," says one. "lawyers are afraid to ask you to lunch"). Experienced colleagues offer in- tensive lessons in how to manage complex civil cases or cope with unruly defendants. "I wish we had had this when I was new,- remarks a veteran. "I was scared to death to charge a jury.- All told, the centernow directed by NOVEL ISSUESpush a rising caseload higher. Judge Hoffmantrains about 2.000 per- In 1972 Sonia Yaco. 15 (above), aspired to sons a year. court staff as well as judges. the Ann Arbor, Michigan. school ?ward: she A similar center for state courts has be-fieught clear to the Supreme Court to put her gun work in Denver. Colorado: and more name on the ballot, although a minorand lost. than 40 states have created State-Federal Banning throwaway soft-drink and beer con- Judicial Councils. Since state courts may tainers. Oregon's 1972 "bottle bill" survived decide federal questions las in the case of challenge on constitutional grounds and in- Oregon's -bottle bill") and federal courts spired other state and federal laws designed to must deal with state law on occasion, these protect the environment and conserve' energy. councils have obvious value. And coordi- 11011fOr nation of the two systems can end the frus- tration of lawyers or jurors expected to be in two courts at the same time. Of the three coequal branches of the federal government, the judicial is by far the smallest. Its personnel numbered only about ROW in 1974: its budget hovers in the vicinity of 5300,000,000 a year, and runs about one-tenth of one percent of the federal total. Not Tiny sumsby government standards can payoff impressively. Chief Judge per Howard T. Markey of the Court of Cus- toms and Patent Appeals tells how his court brought itslagging docket current. The 14 y. t 1 4T IL TAKE THIS to the Supreme Court!" Furious, Bill Smith shouts this classic threat at John Jones as they argue the blame for a collision of Jones's expensive car and Smith's heavily-laden truck. But to reach evert the first rung of the three-level federal court system, their quarrel must qualify as a federal case. The Constitution and Acts of Congress prescribe what matters may come before U. S. courts. Others must be tried in state courts. If Smith and Jones live in different states and more than $10,000 is involveda federal district court can hear their dispute. Either Cases froui party, if unhappy with the outcome, may ask state courts review by a court of appeals. Despite his angry promise, Smith in all probability could take his case no further. "No litigant is entitled to more than two U. S. district courts chances, namely, to the original trial and to a with federal and local jurisdiction review," Chief Justice William Howard Tqft in the Canal Zone, told Congress in 1925. It wrote his view into Virgin Islands, Guam law with the "Judges' Bill." To reach the Supreme Court, cases must turn on principles of law, or constitutional issues, of far-reaching importance. Of incre than 4,000 petitions a year, the higher: court accepts about 400hearing argument on perhaps 180, deciding the rest without debate. Federal court' also review decisions of administrative agencies such as the Tax Court. the Federal Trade Commission, and the National Labor Relations Board. ALASKA Congress has created special, as well as Olte. regular, courts: The Court of Claims hears claims against Or 9 the United States. The Customs Court decides disputes over NEv4oA duties on imported goods. Its decisions may "MAR be appealed to the Court of Customs and Patent Appeals. The latter also reviews judgments of the Tariff Commission and of the Patent Office. Aug In the armed services, review normally ends in the Court of Military Appeals. Beyond this lies resort to a habeas corpus proceeding in a district court. Besides cases from federal courts, the Supreme Court may review decisions of state judges. when cases involve a federal question and litigants have no other remedy left. THE SUPREME COURT of the UNITED STATES

U. S. Courts of U.S. Court of Appeals Customs and Patent Appeals

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Boldface numerals indicate illustration references

Acts of Congress. held invalid 25. 27. bility 10, 40; supremacy 10. 26, 1 1 I; Goldberg, Arthur J. 36 47. 54. 59. XI, 82 Amendments: First 67, 68-9, 97, 108, Granger cases 56-9. 58-9, 80 Adams. John 15, 21.2. 24, 26, 27 110; Fourth 96. 97, 129, 134; Fifth Grant, Ulysses S. 55, 56 Adkins v. Children's Hospital 77. 79 79; Sixth 92; Eighth III; Tenth 65; "Greenbacks" 52, 55.6, 56.7 Aldisert. Ruggero J. 144. 148 Eleventh 16; Thirteenth 53, 67; Grier, Robert C. 51, 55. 56 Antitrust cases 58, 60.2, 66, 67. 68-9, Fourteenth 53, 55, 57, 59, 62, 68.9, 134 71, 77, 95. 97, 100, 102, 106, 108, Habeas corpus 46. 48, 50, 58. 71. 77, Associate Justices 15, 42; junior 136; 129, 134; Fifteenth 55; Sixteenth 59; 88, 92, 104 perquisites I37; senior 136 Nineteenth 79; see also Implied Hammer v. Dagenhart 64-5, 74-5, 83 powers. Interstate commerce, Harding, Warren 77, 78, 83 Baker v. Carr 103. 105, 110 Monetary power, Separation of pow- Harlan, John Marshall (1877-1911) 59, Bank of the United States 31.2. ers, War power 60, 61, 61, 62, 68, 127 33. 41-2; note 33 Counsel, right to 74, 95, 104-5 Harlan, John Marshall (1955.1971) 13, Barnette. Walter 86 Cramer, Maj. Gen. Myron C. 101 107 Bates. Ruby 73. 84 Cramer v. United States 89 Harriman. E. H. 61, 67 Bill of Rights 10, 67. 94, 129, 134 Currency 31,33, 52, 55.6, 56-7, 80 Haupt v. U.S. 88-9, 92, 100.1 Black. Hugo 1. 83, 86, 92, 94, 109, Curtis. Benjamin R. 47. 54 Hepburn v. Griswold 55, 56 III, 122 Hepler. Frank M. 121, 123, 126 Blackmun. Harry A. I1, III. 112, Dartmouth College 12, 12-13 Hetos, Catherine 127 113. 127, 128, 136, 137, 140 Davis, John F. 121, 125 Hill, James J. 61, 66 Bradley. Joseph P. 56. 61 Debs. Eugene V. 58, 78 Hirabayashi v. U.S. 86, 98, 99 Brandeis, Louis D. 63.4; 67, 69, 73, Doe v. Bolton I I I. 113 Hoffman. Walter E. 144. 145, 148 80-2, 93, 102 Douglas. Stephen A. 44. 48 Holmes, Oliver Wendell 6, 9, 62, 65, Brennan. William J., Jr. 10. II, 105. Douglas, William 0. II, 83, 86, 88, 89, 67-8. 69. 71, 72, 72, 79, 80. 113. 127 III, 112, 118, 122, 128. 134. 141. 94. III, 112, 128, 131, 139, 140, 141 Hoover. Herbert 79, 80. 112, 113 141 Dred Scott v. Sandford 12, 35, 42-3, Hudon, Edward G. 126, 138 Brown v. Board of Education 97, 43. 44. 47, 48, 51 Hughes, Charles Evans 10, 71, 74, 79, 100. 102.3. 106.7 Due process of law 10, 57, 63, 77. 79, 80, 82, 83, 93, 110, 115 Buchanan. James 44. 44, 47 94, 95, 104, 113, 123 Burger. Warren E. II, 1 1 1, 112, 115, Impeachment 12, 25-6, 29, 30.1, 53, 116. 126, 126, 127, 128, 130. 136, Eisenhower, Dwight D. 107, 126, 127. 54-5, 113, 118 139. 140, 143 129 Implied powers 31.2, 33 Butler. Pierce 69, 71. 79. 93 Elaine. Ark. 71.2, 80-1 Income tax 52, 58-9 Ellsworth. Oliver 15, 20. 22, 40 Insular Cases 60, 64-5 Cannon. Murk W. 126, 138 Endo, Mitsuye 86 Interstate commerce 10, 36, 39.40, 57, Capitol. U. S. 8, 21. 24, 29 Engel v. Vitale 107.10, 108 58, 60, 61, 64, 68. 81,82,83,91 Cardozo. Benjamin N. 80, 81. 93 Executive privilege 112, 113, 141. 143 Carton, John 48 Jackson, Andrew 12, 32,38,40,42 Certiorari 104, 134 Fair trial 71.4, 77. 81, 84, 85. 87. 94.7, Jackson, Robert H. 12, 83, 86, 89, 92, Charles River Bridge v. Warren Bridge 105 see also Due process of law 137 38.9, 42 Federal court system 144.9, 146-7 Japanese-Americans 86, 98-9 Chase, Salmon P. 52. 53, 54, 55, 55, Federal Judicial Center 138, 145. 148-9 Jaworski, Leon 112, 141, 143 56, 56 Federalists 16, 21-2, 24, 27. 29, 31.41 Jay. John 9, 15. 16, 18, 20, 22. 40; Chase. Samuel 26. 29, 31 Field. Stephen J. 52, 58. 61 mementos 23 Chief Justice 15, 53, 127, 138; per- Ford. Gerald R. 143 Jefferson, Thomas 12, 21. 22, 24, 25, quisites 138 Fortas, Abe 95, 105, 111 29, 40 Child labor 64-5, 745, 77, 82, 83 Foundation of the Federal Bar Jehovah's Witnesses 83, 85-6, 96.7 Chisholm v. Georgia 15.6 Association 4, 5 Jim Crow laws 60. 62-3 Choate. Joseph H. 63, 64 "Four horsemen" 79, 80, 83 Johnson. Andrew 53, 54 Circuit courts 15. IX, 22. 29, 42. 48. Frankfurter, Felix 79, 83, 85, 86, 94, Johnson, Lyndon B. 128 55. 77 103 "Judges' Bill" 77. 83, 146 CU,.t courts of appeals 60, 77, 85, Freedom of speech and press 10, 41, Judicial Conference, U.S. 138 147, 148 67-9. 71. 76, 134 Judiciary Act; of 178915. 18, 25. 27; Citizenship 43. 44, 47. 55. 60 Fuller. Melville W. 58. 77. 127 Jeffersonian 26; lame-duck Federalist Civil rights 59.6(1, 68, 110 Furman v. Georgia 111, 123 22. 24 Civil War 12, 38. 46-7, 48-53, 48-9, Jury trial 50, 50.1, 72, 74, 85, 89. 50-I Gault. In re 123 92, 130 Clark, Tom C. 149 Gibbons v. Ogden 36-7, 37-40 Justices: appointment and tenure 116-7; Clerk of the Court 15. 122-3. 126, 139,Gideon v. Wainwright 95-6, 104-5 number of 15. 16, 22, 26, 29. 42. 140 Gilbert. Cass 83, 115. 116 52 53 55 82. 92, 93, 111 Cohens v. Virginia 34-5, 37 Gitlow, Benjamin 68, 69, 79 Communist Party 69, 79. 129, 134 Glass v. Sloop Betsy 16. 21 Kansas 40.1, 44 Constitution, U. S. 9. 10, 15: adapta- Gohilis case 85-6. 96.7 Kennedy, John F. 128

15(1 Kirks. Rowland F. 126 Railroads 40, 56-8, 59, 61, 67, 80 -I 130.3. 141, 143; schedule 126; term Korematsu v. U. S. 86 Randolph, John 26, 30 122 Reapportionment 103, 105, 107, 108.9, Supreme Court, U. S.: early homes of: Labor 58, 77-9, 82.3, 86, 94-5 110 New York 15, 17; Philadelphia 17, Lacovara, Philip A. 143 Reconstruction 53, 55, 59 20. 22-3; Washington 24, 29-30, 52, Leibowitz, Sam 84, 85 Reed, Stanley 52-3, 83 53, 81 Liberty of contract 62, 71, 77, 79 Rehnquist, William H. I I, 123, 130, Supreme Court, U. S.: personnel 122, Lincoln, Abraham 12, 46. 47-8, 49, 50, 137, 139, 141 128; barber 132; cabinetmakers 132; 51, 52, 53. 83. 113 Religion: establishment of 107-10. conference clerk 138; curator 127; Lochner v. New York 62-3, 70-1, 72. 111; freedom of 83, 85-6, 96-7 information officer 132, 135, 139; 77, 79 Reporter of Decisions 122, 122, 126, law clerks 134, 136, 137; legal offi- 139 cers (staff counsel) 138: messengers McCulloch v. Maryland 31-2. 32-3 Republican Party 48 137: officers of the Court 122. 127; McGurn, Barrett 132, 135, 139 Republicans (Democrats. Jeffer- pages 120-1, 126 -7: physical thera- McReynolds. James C. 79, 93 sonians) 21, 22, 24, 26. 27, 31 pist 135; police 126, 133; seamstress Madison, James 9, 10, 25, 27, 108, Reynolds v. Sims 110 135; secretaries 137 113 Roberts, Owen J. 80, 93 Supreme Court Building 6-7; architect Mandamus, writ of 25 Robinson, Aubrey E., Jr. 144 83, 115; barber shop 132; cafeteria Mapp v. Ohio 95, 97 Rockart, John R. 114 126: carpentry shop 132; chambers Marhury v. Madison 24-6, 26-7, 143 Rodak, Michael. Jr. 122-3, 126 126, 130-1; conference rooms: pri- Markey. Howard T. 145 Roe v. Wade III, 113 vate 138-9, public I I, 142; corner- Marshal 121, 123, 126, I26, 127 Roosevelt, Franklin D. 12. 80. 81. stone laying 83, 115; Courtroom 114, Marshall. John 10, 11, 13. 15, I9, 20. 82, 83, 86, 88, 91. 92.3, 1(1(1, 116. bench 120.1, 130; courtyard, 22, 25. 26. 27. 28, 29, 29, 32. 36, 115. 128 inner 129; dimensions 116: doors, 37, 39, 40, 110, 113, 148 Roosevelt, Theodore 60-1, 67, 72 bronze 117; exercise room 135; Marshall, Thurgood I I, III, 112, 128. Rutledge, John 15, 20 exhibits 126, 127; Great Hall 118-9, 139, I40, 141, 143 143; gym 139: lamp standards 116; Merryman, John 46, 48, 50 St. Clair. James D. 112, 141, 143 libraries 124-5, 136-7, 138: marble Military trials 50-I, 51-2. 88, 92-4. Schechter Poultry Corp. v. U. S. 81, 116; model 82, 127; pressroom 135, 100, 101 90,91 139; print shop 138; staircase 123; Miller, Samuel F. 5(1, 55, 6I Schempp. Mr. and Mrs. Edward L. visitors 114, 115, 118-9, 126, 128, Milligan, Lambdin P. 51, 51, 52 109, 110 133 Minimum hours and wages 62-5. 70 -I, Schenck, Charles T. 67, 69 Supreme Court Historical Society 5 72, 73, 77, 78. 79, 81-3 Schools, public 85, 86, 96.7, 97. 100, Sutherland, George 74, 77, 79, 93 Missouri Compromise 34. 35. 44, 47 102, 106-7, 107.10, 108, 109, 122 Monetary power 56 Scott. Dred 42-3, 44. 45, 47 Taft. William Howard 60, 64, 65, 77. Mooney, Tom 77. 86, 87, 87 Scottsboro cases 73-4. 84-5 79. 82-3, 115. 116. 146 Moore v. Dempsey 71-2. 80-I Seal 4, 125 Tamm, Edward A. 149 Morgan, J. P. 60-1, 66 Search and seizure 96-7 Taney, Roger B. 38, 41-2. 43. 44, 46, Muller v. Oregon 63, 73 Sedition 21, 26, 76, 78 47, 48, 50. 51. 57 Munn v. Illinois 56-8. 58.9, 80 Segregation 59-60, 62-3, 97, 100. 1(12- Toth v. Quarks 92, 102, 103 Murphy. Frank 83, 86 3. 106-7, 122 Tourgee, Albion 62 Murrah, Alfred P. 127, 149 "Separate-hut-equal" doctrine 60, Treason 22, 89, 92, 118 Murray, Madalyn E. 109 62-3, 97, 106 Iruman, Harry S 120. 126 Separation of powers 141 Trusts 58, 60-2. 66, 68-9 NLRB v. Jones ct Laughlin Steel Sherman Anti-Trust Act 58. 60-2, Corp. 82, 94-5 67, 68, 134 U.S. v. Darby Lumber Co. 83 NRA 81, 90. 91 "Sick Chicken Case" 81, 90.1 U. S. v. Loew's, Inc. 134 Nazi saboteurs 88.9, 100-1 Slavery 34-5. 34-5, 40-1, 41, 42-3, 44, U. S. v. Nixon 112-3, 113. 115, 126. Near, J. M. 69, 71 45, 47-8, 53 134, 140-3 Nebhia v. New York 80, 88, 89 Smith, Mrs. Charles D. (Linda U.S. v. "The Spirit 4'76" 67. 76, 77 New Deal 80-3, 90.1. 92, 93. 113 Brown) 100. 106 Nixon, Richard M III, 112, 113. 128, Socialist Party 67, 78 Van Devanter, Willis J. 79, 83. 93 130. 141, 143 Solicitor General 52 Vinson, Fred M. 116, 138 Norris v. Alabama 74 Spanish-American War 60 Voting 55, 103, 105, 107, 110 Northern Securities v. U.S. 60-1. Stanbery, Henry 54 66, 67 Standard Oil 61, 68-9 Waite, Morrison R. 52, 56-8, 60 -I, 77 States' rights 28, 32, 35, 37 War power 57. 86 Ogden, Aaron 36, 39 Stewart, Potter I I, 96. 107, 110, III, Ware v. Ilylton 2(1 Oregon "bottle hill" 145. 145 112, 128. 131), 134, 139, 140, 141 Warren, Earl 92, 97, 110, 143 Stone. Harlan Fiske 80. 81, 82. 83. 85, Washington, George 9. 15. 16, 211. 21 "Packing" the Court 56, 82-3. 92-3 86. 93, 114, 116 Wayne, James M. 12. 48, 51, 55 Patterson. Haywood 84.5 Story, Joseph 29. 41 Webster. Daniel 12. 13, 32. 39.41 Peckham. Rufus W. 62. 63 Strong. William 56 White. Byron R. 10, II, 111. 111, 112, Perjury 77. 86, 87 Sumner. Charles 40 113, 128. 130. 132, 136. 137, 139, Messy v. Ferguson 60, 62-3, 68, 97, Supreme Court, U.S.: as interpreter of 141 98, 10(1. 102. 106 Constitution 7, 10, 13, 26. 27. 113. White. Edward Douglass 62, 77 Powell, Lewis F.. Jr. 11, 112, 128. 141, 143; criticism of 6, 12, 22, 24-6, Wilkins. Robert R. 121 130, 136. 137. 140, 141 35, 37, 4(1, 41, 53, 8(1 -2, 110-13, 138, Wilson, James 15 Prayer, classroom 107.9. 1104 reorganization plan (1937) 12. 82, 92 Wilson, Woodrow 10, 12, 64, 77 Price, Victoria 73 Supreme Court, U. S.: caseload 60-I, Wives of Justices 142 Prize Cases 48-9, 49. 511 77. 122-3. 134. 146, screening of World War 167. 76 Public interest 38. 42. 57, 59, 67, cases 134, 136; customs and pro- World War II86. 88-9, 98-101 69, 80 cedure: admission to its bar 123. 130. Putzel, Henry. Jr. 122, 126, 139 141); conference 136. 137. 138: de- Yaco. Sonia 145 cisions 122, 136-7: formalities 118. Quarles, Donald A. 92. 102 122: opening of Court 127-8: opin- p.VIr Quinn, Richard 88. 100 ions 137, 138-40; oral argument fORPC1111,04. .0CVIL LC. 111,1.11,10 I -;y 151 CECINGZ SIMI" Jr. Hos= 18924903

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