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(HAIRMAN EMERITUS Dwight D. (HAIRMAN Leon Silverman PRESIDENT Frank C. VICE PRESIDENTS Vincem C. Jr Goldman E. Barrett Jr. SECRETARY \Varren Daly TREASURER Sheldon S. Cohen TRUSTEES Robert A. Gwinn Bernard Reese C. Hazard, Jr. Charles B. Renfrew Richards \Villiam Bradford Ruth Insel Rider Robb M. Peter A. Knowles Allen Lacovara Gene W. Lafitte 1. Lancaster. Jr. LaSalle Leffal! Kenneth Starr B. Libin Cathleen Stone Warren Seth P. \Vaxman Maureen E. Mahoney N. Williams Mrs. Marshall Wilson Marshall. Jr. vV'. Foster Wollen Donald Wnght Vincent L. McKusick Francis J. McNamara, Jr. Trustees Emeritus Michael William T. Coleman. Jr. William EclIund J. James D. Ellis Michael Mone A. Estrada W. Morris. III \V'. Thomas Evans M. Nannes General Counsel Charles 0. Galvin W. Nealon Frank B. Gilbert James B. O'HarJ David T. Pride L. Goldman Deval Patrick Executive Director John D Gordan. III Leon Polsky Kathleen Shurtleff Frank CJ1Jndlach M. Reasoner Assistant Director JOURNAL OF SUPREME COURT HISTORY 2004 vol. 29 no. 2 PUBLICATIONS COMMITTEE E. Barrett Prettyman, J r. , Chairman D onald B. Ayer Louis R. Cohen Charles Cooper James J. Kilpatrick Lucas Morel David O'Brien Carter G. Phillips Teresa Rose borough Michael Russ D. Grier Stephenson, J r. Melvin 1. Urofsky BOARD OF EDITORS Melvin 1. Urofsky, Chairman H erman Belz David J. Bodenhamer Kermit Hall Craig Joyce Laura Kalman Maeva Marclls D avid O'Brien Michael Parrish EDITORIAL STAFF Clare Cushman, Managing Editor Patricia R . Evans, Rm archer Blackwl'UPu blishing, Bosro n, M :l.~s adl u s('tr.s & Oxford, UK GENERAL STATEMENT THE SUPREME COURT HJSTORlCAL SOClETY is a District of Columbia in The of the Court of the United States. The and awareness of the Court's conrributlOn to our nation's rich constitutional Since 1975, the has been publishing a newsletter, distributed to its mpmn,pr, on the Court and artides the programs and activities. In an annual coLlection of enmled the in [990 and became a trimester m 1999. The initiated the Documentary of the Court of the United States, grant from the National Hlstorical Publications and Records Court became a cosponsor in 1979, Slllce that time the several books with and features and other illustrations. In 2000. the of \Ve the Students: Supreme Comt Cases for and About Students, a Jam;n B. Raskm. Also in the Decisions and Women's Rights: Milestones to LAIUdJl!~Y for use by In addition to its with the Federal Center on a is also an active of the Court's permanent collection of busts and portraits, as weU papers, and other artifacts and memorabilia to the Court's These materials are Into by the Court Curator's Office for the benefit of the Come's one mrllion annual visitors. The also funds outside rcsearch, awards cash on the Court, and sponsors or cosponsors various lecture series and other educatIonal to further of the Court and its 5,000 members whose financial support and volunteer committees enables the to function. These committees report to an elected Board ofTrustees and an Executive Committee, the latter of which is for the permanent staff. D.C. 2.0003, The SOClelY has defcrmmcd e~igib:c to ,<IX 50! (c) (3) or the Infernal Rnenuc Code. JOURNAl OF Su M OUR ISTO y 2004. I. 29. no. 2 INTRODUCTION Melvin 1. v ARTIClES Unlikely William and the Dow11s 123 Will Provide": Lillian and Freedom James F Van Orden To Sit or Not to Sit: The Court of the United States and the Civil Rights Movement in the Upoer South Peler WalienSlrhl 1·j.5 and III LeWIS and the U!~rp,.r·"rp Pnina lA!;av 163 the First Draft Lewis as 177 The Lewis, Civil and the Sumeme Court 191 The Judicial Bookshelf D Grier F CONTRIBUTORS 226 PHOTO CREDITS 2004, by the Court Historical at House 224 East Street, N.E. nc. 20003 ISBN 0-914-785-35-4 ISSN 1059-4329 Introduction Melvin I. Urofsky Readers of this issue will note that there the .fournal for publication. For this ] thank are three articles devoted to a man who never them, as ] think the readers of the .fournal will sat on the Court, argued a case before as well. the or was even a to a suit that The other three articles came to us a the high court decided. Anthony variety of means and touch upon different as­ Lewis played a very important role in the his­ ofthe Court's history. Harry Downs sent tory of the Court, because he was the us his article about Justice William first reporter to cover the Court on a as part of a he has been about full-time basis. The stories he filed over more Justices and slavery. James Van Orden wrote than two decades about the Court for the New about Lillian Gobitas Klose for a book that] York Times not only made history, but also set a have edited on Americans who made constitu­ standard for all Court He is the tional history. He interviewed Mrs. Klose and Court reporter to have won a Pulitzer Prize for wrote a good article, but it was much too his his classic book, Gideon's Trumpet, for the space limits I had in the book. How­ is not only a model of a case but after ever, my hat as editor of this is never nearly four decades still widely used as a sup- far away, and I that in addition to In classes. the he was supposed to write, he pen a Lewis retired from full-time writing two lengthier one for the Journal, which he years ago, although he still contributes an oc­ consented to do. Finally, Peter Wallenstein and casional column. To mark that the I ran into one another at a meeting, and I American scheduled a asked him what he was on. Before session at its annual about him. Since I he told me, he said "You probably want some- knew all ofthe participants, I asked them-and for the don't The an­ r ..prt_~'" make their papers available to swer, was yes. The events he writes v vi JOURNAL OF SUPREME COURT HISTORY about in took dur­ OUf readers to be aware that to gIve us ing the time when Anthony Lewis covered the the sketches and reviews of a half-dozen or so Court. books, Grier must first go through the dozens All told, the meet the Journal's cri­ of books that appear each year on various as- teria in a broad manner to the ofthe Supreme Court and its It is ofthe Court and well written by a formidable task that he in addition both new and established scholars and eclectic to his regular duties as a teacher and scholar, in nature. And that is the condition of and one for which we are most grateful. on the Court today, as one can also tell by read­ Grier Steohenson's "Judicial Bookshelf." As usual, enjoy! ~ really going to miss getting steamed at Anthony Unlikely Abolitionist: William Cushing and the Struggle Against Slavery HARRY DOWNS* Introduction One of the differences between the federal Union established under the Constitution and the Confederation of States established under the Articles of Confederation is the creation under Article III of a judicial power of the United States and of a Supreme Court to exercise that power. to its power to determine the structure of that determined that the Court should consist of one Chief Justice and five Associate Justices, The six President Washington named to the Court l were members of the none achieved distinction reason of his service on the Court. Chief Justice for >-nc,,,,,",v, is best remembered for the treaty with England which bears his name; and when he in 1795 following his election as Governor of New local papers referred to his new office as "a promotion."2 William Cushing served far and away the (also named John) were justices of the of these original six: he in Court ofJudicature, the court his duties until his death in in the Massachusetts Bay Yet despite his having a half-century on His family also held slaves. The very week the provincial, state, and federal he is William was born his father John Mary little known nor long remembered. Thaxter £90 "for my woman servant or Cushing was born III slave named Phillis, to have and to hold ye sd Massachusetts on March I, the negro woman servant or slave to him ye sd son of John and Mary Cotton Cushing.