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Abstracting and indexed or absrr;.lcrcd in the America: and Life; CatchWOld; EBSCO Abstracts; lnfoTrac Custom: InfoTrac OncFilc; ]STOR; Pcrllldicals & Books, SUPREME OURT 1ST 0 R CAL SOCIETY
HONORARY CHAIRMAN William H. (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 , 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. His John his heirs executors and family sometimes has been called the family forever,,,3 When William was thirteen, his fa both his father and his ther purchased from Ruth Randall on 124 JOURNAL OF SUPREME COURT HISTORY Associate Justice William Cushing (above) was born Cushing did not marry until 1774, when he was into a family of judges: both his father and grandfa forty-two years old. Hannah Phillips Cushing (above) ther had been justices of the Royal Superior Court of regularly accompanied him on circuit to ease his Judicature, the highest Court in the Massachusetts loneliness. Bay Colony. Cushing's family owned slaves, but it is unclear whether his own personal servant, Prince was now thirty years of age Warden, was a slave or servant. and an established member of the bar. He re turned from Pownalborough to pur 1745, negro man named Jonathan ... to chased in fee hold as a Servant for Life" for £120.4 In later Scituate's New and manied years, Cushing himself retained a ser Hannah Phillips of Middletown, Connecticut. vant, Prince whose status-servant or He never Jived on the frontier, as sJave--was not entirely clear. on circuit he visited various from Harvard frontier courts. shortly after his nineteenth birthday.s He spent In 1772 Governor Thomas Hutchinson ap a year as preceptor of the Roxbury Grammar pointed to succeed his father as read law in the office of Boston attor tice of the Court of Judicature. The ney Jeremy and was admitted to the timing of the appointment propelled bar in February 1755. He into the vortex ofthe controversy over payment an office in Plymouth and for the next five salaries. The Townsend Act of 1767 years before the provincial courts. He had shifted payment of provincial governors' then moved his practice to the frontier town of salaries from to Crown, to Pownal borough Dresden) in the district them risk of retaliation by the of Maine, on October I, I cial assemblies. This had caused great discon II issued him his first judicial com tent in and the rumor that the of probate of Lincoln Crown now proposed also to pay the salaries year, he was pro- of the judges of the Superior Court and also made ajustice ofthe peace, intense protest. 7 and in 1762 he was called to the degree of The controversy on through 1773 barrister.6 and into 1774. at which time the WILLIAM CUSHING AND THE STRUGG AGAINST SLAVERY 125 assembly demanded that the judges declare election held under the Constitution, and themselves one way or the other on the is the election of sue. Cushing elected to take his salary from named one of the five Associate Jus the assembly. This critical to his career, tices of the Supreme Court. for he was the only one ofall the In duties as a Supreme Court the to be to the Superior Justice included sitting on circuit with one or Court of Judicature following the American another of the district judges for that circuit, Revolution. often at remote locations. In one important re ofthe administration ofjus spect, contrived frequently to ease the tice the of the colony loneliness, if not the of riding from the mother country raised the fundamen tal issue of how the courts should be con him. Riding in a stituted and by whom. A independent two black horses, and attended his servant referred back to the Charter of Prince Warden, Justice and Mrs. Cushing cov 1692 to find this On October ered the miles together. Detailed accounts no 1775, the Great and General Court ofthe State but from bits of corre of Massachusetts Bay,8 to act un continued the der the authority of that charter, appointed arrangement throughout his career. and four others to constitute a new served as a member of the Court Court of Judicature for the State. for almost twenty-one years. On March 4, and until his appointment to the 1793, he administered the oath of office to Supreme Court, Cushing served first as a jus President Washington for his second term, tice and then as of the Chief Justice then absent from the Court ofJudicature and its successor court, the and on Wednesday, 4, 1801 Judicial Court, established under the he administered to John Marshall the latter's Massachusetts constitution of 1780. oath of office as Chief Justice of the United played an active role in States. tenure on the Court ended the adoption of the 1780 constitution. In 1777 with his death on 13, 1810. and 1778, a legislative convention had drawn up a form ofconstitution that the people over whelmingly primarily because the Cushing and Slavery instrument had not been adopted by popular Rutland District convention and did not contain a bill of rights. May 4,1754 The General Court by authorizing a BILL OF SALE Convention for the of a Constitution ofGovernment for the State of Massachusetts Sold this day to Mr. James Cushing served as one of Scituate's dele Caldwell of said the gates to the convention in 1779 and 1780 and County of Worcester & Province of then secure its adoption charging , a certain on the deficiencies of charter man named Mingo, about twenty based government and the merits of the new Years of and also one constitution. wench named about 19 Years In 1787, was named vice with child Quaco, about nine dent ofthe state convention that considered and months old-all sound & well for ratified the Federal Constitution. He supported the sum of One Hundred & adoption, was elected one of Massachusetts' Pounds, lawful money, RECD. To ten presidential electors in the first my full satisfaction: which Negroes, 126 JOURNAL OF COURT HISTORY Ithe do warrant & defend assault and Thus commenced the se all claims whatsoever as ries of actions, witness my hand. and pleas to the lC~I:'ldLU Commonwealth v. a criminal prose In presence of: Zedekiah Stone cution against Jennison for his assault and bat- IN. Morray Copy examined of Walker. 10 John Caldwell Attest. The justice of the peace declined to take Jos jurisdiction over Walker's suit and referred Quark Walker thus upon the pages of the matter to the Worcester Court of Com American as a chattel, not a man. mon Pleas for hearing at the June 1781 sitting. James Caldwell died intestate in 1763. Un Jennison shifted the focus of the der Massachusetts his widow Isabell and action refusing to join issue on Walker's plea his minor children divided his estate. l:::.Iy agree of assault. Instead, he entered a so-called plea ment between Mrs. Caldwell and John Murray, in bar that Walker was his slave. II This forced guardian for the Caldwells' minor children, Walker to file a replication that he Walker was included in the widow's portion. was a free man and not Jennison's slave. for if Isabell still owned Walker when she married Walker was Jennison's Nathaniel Jennison and continued thereafter duct arguably constituted restraint to hold him as her slave. her death and of an slave. Jennison in I Jennison claimed to succeed her as also counterattacked the Caldwells-whom he Walker's lawful owner. Walker claimed that to be the chief source of James Caldwell had his difficulty-by commencing a civil action upon his reaching them for £1000 for having had repeated the enticed away his servant, Walker.12 Note the band's death. Jennison, either disbe behind Jennison's His lieved the promise or declined to honor it, and in bar to Walker's writ shifted attention away the years rolled by with no in Quark's from his own actions and onto Walker's status. status. His writ the as Sometime early in 1781, when Walker serted only that Walker was his servant. Thus was about twenty-eight, he left Jennison's he avoided in either case to his as farm and went to work for James Caldwell'5 sault upon Walker, the original point at issue. John (who had witnessed the bill of Jennison was represented by able advo and Seth. A few days later Jennison, ac cates in this apparently minor dispute over the by a group of his came right to the services of a black farm laborer. 13 upon Walker alone, plowing the Caldwells' Walker and the Caldwells likewise were well fields. Jennison and one of his friends set rprm"OPr,!P,cj' their Levi Lincoln and upon thrashed him and locked Caleb were two of the most eminent him in an out-building until he could conve lawyers in the state. 14 Thus, the was be removed to Jennison's farm, which conducted on both sides. Both matters, Walker's plea of trespass When Walker failed to return that against Jennison and Jennison's of tres the Caldwells went looking for him. pass on the case the Caldwells, went to cated released him from trial before the Worcester Court of Common brought him to their home, and Pleas the first week of the June 1781 him from Jennison. They also induced him court term. The court consisted to lodge with the local iustice of the peace none of whom was a a of trespass against Jennison for In Walker v. WILLIAM CUSHING AND THE STRUGGLE AGAINST SLAVERY 127 Eminent attorneys Levi Lincoln (left) and Caleb Strong (right) represented slave Quark Walker and farmer John Caldwell in their suit claiming that Caldwell's brother, James, had promised Walker his freedom upon reaching maturity. When James Caldwell's widow died in 1173, her second husband, Nathaniel Jennison, forced Walker to continue as his slave. the jury returned a verdict that "the said Quark ably having failed to file with the is a & not the proper court certain common papers that were of the Defendant" and assessed available. The Caldwells, however, £50 for the assault and plus costs. their vigorously. Whereas In Jennison v. Caldwell the "[found] the at trial Lincoln had the court to find that Defendants guilty in manner & form as the Walker had been manumitted Plaintiff in his declaration has (that of his former owners, on is, that the CaJdwells had unlawfully solicited the much broader con Walker to leave Jennison's service and em travened both the law of nature and the law and had of that Walker therefore could not be Jennison from and awarded Jennison's since Jennison's sole Jennison £25 The two decisions are basis for Walker's services was his not in conflict: Walker could have assertion that he owned Walker as his been bound to serve Jennison under a contract Walker likewise was not Jennison's servant. l6 of service not have been his slave. Each The order entered by the Circuit Court counsel having secured a result favorable to records verdict for the but his client, the remained offers no '"'''}''''''''' unresolved. Both Jennison and the Caldwells noticed [A ]nd now the parties appear, and the their to the next Worcester Circuit case, after a full hearing was commit of the Judicial to be held in ted to a sworn to law At that sitting a new jury would to try the same; who returned their be called and the would be tried Verdict therein upon Oath, that is to lS de novo. say, "find the Appellants not guilty in Jennison's was his manner and form as the appellee in skilled and experienced counsel unaccount his declaration has [sic]." 128 JOURNAL OF SUPREME COURT HISTORY At the same sitting, Robert Treat Paine, at His ""IJ"-,,,.au general of the Conunonwealth, secured ever could not have been an indictment against Jennison for beating and not had parents been slave- Walker. This case-Commonwealth owners, but himself had for years en v. Jennisoll-was tried before Chief Justice joyed the services of Prince his black and the full beneh in 1783. It is this coach-driver and attendant. Worse criminal final chapter in the four years Paine had felt com litany to write that Warden that Walker case. you denied to to All four Judicial Court justices that you still claim him as were in Worcester for the April 1783 to make those pay who circuit court term at which Paine's indictment is your slave or he is a freeman of Jennison at last came to trial. All three as unless you him a proper manumission in sociate the course of a an action will be carried David and James SuI Iivan-had sat on to next court so that if he be yr slave you may Caldwell v. Jennison two years previouslv and have an opportunity to prove it. "til Paine had heard both Lincoln's could have felt no great confidence that the ery violated natural law and the jury verdict Chief Justice would particularly be Jennison's award against the to charge for the CommonwealthI9 Caldwells. The attorney thus might According to Cushing's case notes,20 reasonably have them to question Paine's prosecution re-plowed much of the any defense by Jennison based on his right ground covered two years III as Walker's owner to beat and imprison his Jennison v. Caldwell. slave. Some evidence was of the government to prove that the former master & mistress of Quaco had promised him his freedom on his attaining the age of 25 years which period had without his actually liberated. then charged the jury that The defense set up in this case ... is founded on the assumed proposi tion that slavery had been by Jaw 22 established in this province: ••. , It is true ... that slavery had been considered by some of the province laws as actually existing among us: but no where do we find it expressly established .... Sentiments more favorable to the natural rights of mankind ... led the framers of our Constitution of Robert Treat Paine (pictured), Attorney General of lPnr__mr which the people of the Commonwealth, secured an indictment against Jennison for beating and confining Walker after he this Commonwealth have solemnly ran away to work for John Caldwell. bound themselves to each other-to WILLIAM CUSHING AND THE AGAI NST SLAVERY 129 declare--that all men are born free and usage treated constitutions political doc and equal; and that every uments for the governance of a polity, to be is entitled to libertJ4 and to have it tprlnrptpli and the legisla the laws as well as his ture, not as sets of rules that created rights life and properly. In without and duties a court could enforce. resorting to implication in constru for deemed the Virginia Constitu the is as tion of 1776 to be on a par with other ,",U'v,",'U('H'Y abolished as it can be by tive measures and thus subject to legislative of and revision; and as he was a draftsman wholly incompatible and of that instrument, his views were accorded to its existence. weight.27 determination The Court are therefore fully of in 1783 that the Massachusetts constitution opinion that perpetual servitude can was law that his Court was emlpoweirea to inter- no be tolerated in our govern and enforce-and that it was supreme law ment; and that can only be for which a prior could feited some criminal conduct or not survive-was both innovative and signifi relinquished personal consent or cant. One ofthe earliest assertions in American contract. of these critical constitutional ,",VII",",;; • .:> and of the rule of law they imply, The whole course of this sug MarbUfY v. Madison by twenty gests numerous questions. Why did years. the Cal dwells take such an interest in Walker? Cushing's is also noteworthy for Why did Jennison permit his appeal to be de- its anticipation of one of Chief Justice Roger and for several years thereafter seek Taney's principal arguments in Dred SCOlt.28 relief from the On what grounds, Walker and Dred Scott both raised the and ;;w,.:>uam did the circuit question of whether the institution of slav court jury reverse Jennison's award of dam ery could be reconciled with declarations of ages against the Caldwells? Why did Attorney universal Cushing ruled that by recog General Paine secure an indictment in their constitution Jennison for an assault resolved ble with slavery, the people of Massachusetts had abolished the institution. Taney stood argument on its head, He acknowl that the Declaration as did Jennison re serted that all men were created tain Sprague to defend him against this pros natural right to liberty, and that ecution? All are the scope of this those But whereas paper. that the universality of the reliance on the Massachusetts further of the constitution as law that his court might and enforce merits attention. nied the universality ofthe The Framers Two centuries of Supreme Court adjudication were all men of honor. Some of them owned have established in our jurisprudence and all of them knew that the prac that a constitution is that as law tice was an established institution in several is subject to interpretation and enforcement by of the states. They could not honorably have the courts, and that it is supreme superior the Declaration and the Bill of Rights both to traditional and to ordinary had they understood to be included 26 enactments. None of these propo !J"ot'!Jl\;'", to whom those sitions was settled law at that time. Tradition 130 JOURNAL OF SUPREME COURT H have intended that those rights not be extended The matter soon came to the atten to Athcans.29 tion of South Carolina Governor Benjamin Shortly after resolving Commonwealth v. Guerard, who to Massachusetts Jennison, Cushing became embroiled in an Governor John Hancock that Massachusetts's other controversy arising out of the "peculiar policy of slaves institution" of slavery-this time with seri South Carolina slaves to desert the service of ous political ramifications. Two Massachusetts their masters and flee northward. He charac cruisers a British ship carrying . terized the action in the terms as slaves seized by British troops from sev an affront to the and eral South Carolina plantations and took the dence of South Carolina. Hancock there to Boston. The slaves were interned upon submitted the matter to ofthe on Governor's where were kept Judicial Court for an at state expense. The Massachusetts Board of War notified the South Carolina congres respondence over to the that the slaves were safe in Cushing and prepared an opinion and upon ofseveral of of the justices in the form of a letter to Gover the owners the General Court a resolu nor Hancock dated December 20. 1783. tion allowing the slaves to be reclaimed, pro Sir, vided the owners reimbursed the state for its and them. When .. After hearing council one Hasstord, an ofthe owners, appeared both sides, for & agst the in Boston to claim the they refused to of ye Commitment (w ch ye Course return with him. He then caused them to be of law obliges the Court to decide arraigned before Justice of the Peace Thomas upon) there appeared to be no law Craft on a deserted their mas of this State, and we don't find there ters and unlawfully refused to return to service. ever was one, warranting a commit Craft commirted the to and or ment to prison by a Justice of peace dered them held for their proper masters. in Such case ....[T]hey were conse On or about I several at quently obliged to liberate them upon torneys who had learned ofthe slaves' confine motion for that purpose. ment secured from the Judicial Court If a man has a right to the Service writs ofhabeas corpus,30 which evi of who deserts his dence for and their continued confine undoubtedly, he has a to take ment was taken. Hassford oresented nothinQ in him up and carry him home to Ser favor of Craft's mittimus vice again; which has always been that the slaves had deserted their masters' ser the case here, without any Sanction vice and refused to return. The court from the magistrate ....Whether any announced that there were no statutes authoriz person had a right to the service of ing a justice of the peace to commit persons to those Negroes, & might take them up, jail on these grounds and ordered the slaves re was clearly a question the Court had leased immediately. Hassford could nei nothing to do with. A simple deter ther compel the continued confinement of the mination that a magistrate had done slaves nor force them to return with him to what he had no warrant by law to their masters' service. he aban do, we are not sensible, is against doned his mission, returned to South any resolve or ordinance ofCongress, and wrote a lengthy and bitter complaint to or ye Confederation of ye United the state legislature detailing the failure of his States....We are, with ye grt estm, mission31 yr most obet servts. 34 WILLIAM CUSHING AND THE STRUGGLE AGAINST SLAVERY 131 The Governor of South Carolina complained to Massachusetts Governor John Hancock (left) that his state's policy of manumitting slaves encour aged South Carolina slaves to desert the service of their masters and flee northward-an affront to the sovereignty and independence of South Carolina. Shown above are slaves in Beaufort, South Carolina in a photograph taken in 1862. and had an elaborate and fully devel slave and Massachusetts, the high est court of which had just determined that the state had abolished the institution. The first step was to define as narrowly as possible the question Governor Guerard's let . ter: did Massachusetts law empower a justice of the peace to jail a person to be an slave? Cushing concluded it did not. A justice's powers were limited to those conferred law. Massachusetts had neither a The letter undertakes the difficult task slave code nor a for im of accommodating within the of prisoning slaves. Therefore, the im thirteen sovereign states the conflict of laws prisonment of these slaves was ultra vires and between South Carolina, which unlawfuL 132 JOURNAL OF SUPREME COURT HISTORY Cushing emphasized the limited ef spects the accommodation reflected in the fect of this ruling by opining fUliher that Fugitive Slave clauses of the Northwest Massachusetts law likewise would not inter Ordinance and the Constitution. The Confed fere with a slaveowner's privately exercising eration could endure half slave and half free his right of propeliy in his slaves. This right so long as each half respected the laws of the did not require judicial enforcement: the mas other. Slavery was abolished in Massachusetts, ter "has a right to take (his slave) up and but that abolition did not affect the status of carry him home to service again; which has al . South Carolina slaves who escaped or were ways been the case here, without any Sanction taken from service imposed upon them in from the magistrate.,,36 Cushing's jurispru South Carolina pursuant to South Carolina dence at this point seems internally inconsis law. Thus, a South Carolina master had a tent. In Commonwealth v. Jennison, he had common-law right to recover his property instructed the jury that the Massachusetts con a right Justice Story subsequently asserted in stitution prohibited slavery and thus freed any Prigg v. Pennsylvallia. 37 This was a purely pri slave in Massachusetts, and that Jennison's at vate right, however: state officers lacked any tempt to recover Quark Walker therefore con warrant to deploy state power in support of the stituted an assault. Here, however, he advised master. Governor Hancock that a South Carolina slave The solution is also consistent with Chief owner might come into the commonwealth Justice Shaw's decision in Commonwealth v. and recover his slave-the very act for which Aves.38 Cushing's acknowledgment of a slave Jennison had been charged and convicted. How owner's right to recover his escaped slave and can this be? take that slave out ofthe Commonwealth in no The reconciliation lies in the relation way implied any right to bring slaves into the ship of sovereign states within the Confedera state. Thus, the slaveowner's right was defen tion. Jennison and Walker were inhabitants of sive or protective only. Massachusetts. Jennison claimed Walker as his Finally, the solution reflects Cushing's personal property by inheritance from his wife. careful, pragmatic approach to his craft. Like Massachusetts law did not recognize slav Robert Bolt's Sir Thomas More, he perceived ery, however, and Walker therefore could not a society "planted thick with laws from coast be Jennison's property under Massachusetts to coast-man's laws, not God's," and believed law. Thus, Jennison had no right to recap that these laws protected the people against the ture Walker when Walker left him. The own arbitrary exercise of power. 39 Thus, the con ers of Jack Phillips and the other slaves taken stitutional provision that abolished slavery in in prize were inhabitants of South Carolina. Massachusetts meant exactly that-no more, The right of South Carolinians to own slaves no less. in South Carolina derived from South Carolina law, which recognized and enforced the insti Conclusion tution. Ownership of South Carolina property by South Carolinians, seized by act of war in During his remammg years on the bench, South Carolina and submitted to prize courtju Cushing never again officially opined on the risdiction in Massachusetts, would under prin issue of slavery. His participation in the strug ciples of comity be determined in accordance gle is therefore confined to his work as a with South Carolina law. 'rherefore, those own state supreme court jurist. In Commonwealth v. ers could recover their slaves in Massachusetts Jennison, he instructed the jury that slavery and required no magistrate's writ to do so. had been abolished in Massachusetts, and in Cushing's and Sargent's solution to the process established his court's authority to Hancock's dilemma anticipated in many re treat the Massachusetts constitution as law and WILLIAM CUSHING AND THE STRUGGLE AGAINST SLAVERY 133 and apply that law in the course of and fellow Virginian. Jean Edward Smith, John Marshall, 40 In his opinion to Definer of a Nation (New York: Henry Holt & Company, Governor Hancock, he 1996), p. 10, (hereafter Smith, John MarShall). 2 One Documentary History of the Supreme Court of abolition in Massachusetts and the retention the United States, 1789-1800 (1985), p. 759. Jay also had in other states within the Confeder been the Federalist candidate in the previous election, but ation. In the context of the nrl)t"'rt'J_r.n had been narrowly defeated. society in which he lived, his decisions were 3Sale of Phillis to John Cushing, March 6, 1732, Cushing both I iberal and The fai lure of other Family Papers, MHS. leaders to heed his wise example in no way 4Sale of Jonathan to John Cushing, May 26, 1745, Cush ing Family Papers, MHS. John had also purchased other detracts from the of his work. slaves prior to William's birth: a "negro man called Jo" in 1715 (sale of Jo to John Cushing, June 2,1715, Cushing *The author wishes to thank Randall Kennedy Family Papers, MHS), and some years previously a "negro of Harvard Law School for his helpful com woman named and called Judith" (sale of Judith to John ments on an earl ier draft of this article. Cushing, January 1701-02; William Cushing Papers, MHS). Either or both might still have been members of the Cushing household when William was born. SHe also received Master of Arts degrees from Harvard and Yale and, in 1785, an honorary Doctor of Laws de IChief Justice John Jay ofNew York and Associate Justices gree from Harvard. Letter from E. H. Tomkins, secn~ James Wilson of Pennsylvania, William Cushing of lary to the Secretary, Yale Umversity, to Massachusetts Massachusetts, John Blair, Jr. of Virginia, John Rutledge Supreme Judicial Court Chief Justice Arthur P. Rugg, of South Carolina, and James Iredell of North Carolina August 25, 1919, Cushing Scrapbook, voL JIf, p. 134, (nominated to succeed Robert Harrison of Maryland, William Cushing Papers, MHS; Harvard College Records who returned his commission prior the Court's mitial (Cambridge, MA), 11, pp. 31, Harvard University session). Corporation Records (Cambridge, MA), vol. III, pp. 234, Two of the five, Rutledge and Cushing, were subse 239. quently named Chief Justice in somewhat unusual cir 6John D. Cushing, "A Revolutionary Conservative: The cumstances: Rutledge because he served but was never Public Life of William Cushing 1732-1810," PhD. disser confirmed; Cushing because he was confirmed but never tation, Clark University, Worcester, Massachusetts (1960) served Rutledge resigned in J791 to become chiefjustice (hereafter cited as Cushing, "Life of WilHam Cushing"); of South Carolina's highest court On August 12, Arthur P Rugg, "William Cushing," 30 Yale LJ. 128-144 President Washington nominated him to succeed Jay. He ( 1920). served for four months as a recess appointee but was demed 7Payment by Crown did not mean payment from the Senate confirmation. The President then appointed Cush royal purse. Rather, the Crown the salaries and then ing Chief Justice. His appointment was confirmed by the funded them from taxes levied against the provincials. Senate and his commission duly issued, but after several Thus the judges-like the Royal Governor-would be paid days he declined the honor on grounds of ill health. The by the colonists but be beholden to the Crown. appointment then went 10 Oliver Ellsworth ofConnecticut 8The Massachusetts legislature is called the Great and See letter of Timothy Pickering, Department of State, to General Court, sometimes shortened to the General Court. William Cushing (photostat) dated January 27, 1796, en 9Caldwell v. Jennison (1781), records of the Supreme closing Cushing's commission as Chief Justice, William Judicial Court, case no. 153693, Suffolk County Court Cushing Scrapbook; and Cushing's response to the Presi house, Boston, MA. Note that in the Bill of Sale the child dent dated February 2, 1796, begging his leave to remain is named "Quaco," but that at various times he was called an Associate Justice, Photostat Collection, Massachusetts '''Quak,'' "Quarco," "Quack," "Quacko," "Quarko," and Historical Society (hereafter "MHS") Boston, MA. "Quork." [n the various court records his name is given In 1800Cushing was again considered for promotion to as "Quark." The record is silent as to where and when he Chief Justice. Ellsworth resigned that autumn, presenting acquired the surname "Walker." President Adams, who had lost his bid forre-election, with IO/bid. the opportunity of naming Ellsworth's successor. Adams I iJennison asserted that Isabell Caldwell, being possessed turned once again to Jay, but it was widely believed that Jay of Walker "as of her own proper negro slave," had mar would decline and that Cushing would then be nominated. ried Jennison, whereupon Jennison became possessed of Jay did decline, but Adams instead chose his Secretary Walker "as of his own proper negro slave." He "prayed of State, John Marshall, Thomas Jefferson's distant cousin judgment of the court if the said Quark to his said 134 JOURNAL OF SUPREME COURT HISTORY writ ought to be answered," Quark Walker Nathaniel 19Under Massachusetts practice, the Chief Justice de Jennisoll, Worcester Inferior Court of Common Pleas livered the Court's charge to the jury whenever he was (June 1781). present Sargent the Jury in Jennison v. Caldwell 12Nathaniel Jennison v. John Caldwell and Seth Caldwell, because Cushing was absent from the September 178 I Worcester Inferior Court ofCOmmO£1 (June 1781). Worcester term of the court. 13Jennison's attorneys were John Sprague (also sometimes 20Wiliiam Cushing, "Notes of Decided in the Su called Judge Sprague) and William Steams. Both perior and Supreme Judicial Courts of Massachusetts prominent advocates. At this Massachusetts still re from I to 1789," Bound Manuscript Collection 2141, tained the practice of calling the most prominent and dis pp, 50-51, Harvard Law School Library, Cambridge, MA tinguished members of the bar to the degree of barrister.' (hereafter cited as "Cushing Case Notes"). This was formalized 1782 by a statute authorizing the 2lCushing's hearing notes contain sketchy references to Supreme Judicial Court [0 confer this degree at its discre this evidence. William Cushing Papers, MHS. tion. On February 17, 1784, the last occasion upon which 22Although the people ofMassachusetts had declared their this degree was granted, Jotm Sprague was one of the at independence from Great Britain, organized state torneys so honored. government, and taken up arms to preserve their freedom, 14Both Lincoln and Strong had been members ofthe state used the colonial term "province." constitutional convention. Both were also to the 23Here Cushing used colonial term, "subject." bar barristers in 1784 together with Judge Sprague. 24Constitution of the Commonwealth of Massachusetts Both on to prominent political careers. Lincoln be (hereafter Massachusetts constitution), Part the First: "A came, successively, memberofCongress, Attorney Gen Declaration of Rights of the Inhabitants of Com eral of the United States under PresIdent Jefferson, and monwealth of Massachusetts": Lieutenant Governorofthe Commonwealth. Strong served Art. L Equality and Natural Rights of All Men. several terms as Governor. All men are born free and equal and have cer In I II, President Madison appointed Lincoln to suc tain natural, essential, and unalienable rights; ceed Cushing on the Supreme Courl Lincoln declined the among which may be reckoned the right ofen appointment because he was going blind, and the seat was joying and defending their lives and liberties, subsequently offered to Joseph Story. that acquiring, possessing, and protecting ISAt that time, the justices of the Supreme Judicial Court property; in fine, that ofseeking and obtaining trial and intermediate appellate judges on clrcuit and their safety and happiness. as appellate judges in Boston. j()Emory Washburn, "The Extinction of Slavery in Note the striking similanty to the Declaration oflndepen Massachusetts," Massachusetts Historical Society Pro dence and the Constitution of Virginia. ceedings, May 1 pp. 188-203; also printed In 25"Cushing Case Notes" (emphasis original). 4 M.H.S. Collections, 4th Series (Boston, .1888), pp. 26!'vfarbw:v v. Madison, 5 US. (I Cranch) 137, 177-78 46. The liming of the paper suggests it was written (1803) (Marshall, C..I.): "[A written constitution forms] the the Dred controversy, specifically to refute Chief fundamental and paramount law ofthe nation ... Ifan act Justice majority opinion and to support Justice legislature ... be in opposition to the constitution. Curtis's dissent. the constitution., and not such ordinary act, must govern the 17There is no record of how Warden came into Justice case ... "; Cooper v. Aaron, 358 US. I (1958) (unanimous Cushing's service. One writer suggests that Warden'S par opinion signed all nine Justices); Baker v Carr, 369 ents had been Cushing family although their names US. 186 (1962); Thompson v. Oklahoma, 487 U.S. 815 are not mentioned in surviving family papers. Henry (1988). Flanders, The Lives and Times of the Chief Justices of 27Smith, John Marshall, pp, 94-96; p, 560, n. 41. the Supreme Court of the United States, second series, BDred ScOIl v. Sandford, 60 U.S. (19 How) 393 (1857). (Philadelphia, 1858), p. 38. 29Dred ScOIl, 60 U.S. (19 How.) at 404-21. ISR. T Paine to Robert Luscombe, August 21, 1779, R. T 300ne of the writs for a man named Jack Phillips. The Paine Papers, MHS. There is no record of any contem names of the olhers no longer known. poraneous court action and, since Warden remained 3lCushing, Life of William Cushing, Cushing's service after Commonwealth 1'. Jennison, one 32Massachusetts and South Carolina were then both sig must conclude that Cushing either manumitted him forth natories to Articles of Confederation, adopted by with or sansfJed the attorney general that he already had "The United States of America in Assembled" been freed. Whether Warden been freed voluntarily November 15, 1777 and completely ratified March I, or under pressure, however, Paine's most reasonable as 178 L Article II ofthat instrument recited that "Each state sumption would have been that Cushing not opposed retains its sovereignty, freedom and independence, and to slavery. every Power, Jurisdiction and right, which is not by this WILLIAM CUSHING AND THE STRUGGLE AGAINST SLAVERY 135 confederation expressly delegated to the Unites States in where two members of the crew secured a writ of habeas Congress assembled." corpus, thlls causmg Lucas to be brought before Shaw< 33The Massachusetts constitution provided for such Once again, Shaw ruled that the slave was not a fugitive opmions. and therefore could not be confined in Massachusetts. Paul J4Copy of "Letter to Oovr Hancock, Deer 1783, respect Finkelman, An Imperfect Union: Slavery, Federalism, ing ye Liberation of certain Negroes in answer to cer and Comity (University of North Carolina Press, Chapel tain Sneers of his of South Carolina" from William Hill, 1981). Note the interesting parallels and contrasts be Cushing and Nathaniel Peaslee Sargent to John Hancock, tween Cushing's rationale for denying state assistance to December20, 1783, William Cushing Papers, MHS (here a slaveowner seeking to recover hiS slave and the United after "Letter to Oovr Hancock"). States Supreme Court's rationale nearly two hundred years 35A generation later, Massachusetts Chief Justice Lemuel later for prohibiting slate assistance to a property owner Shaw followed the logic of Cushing and Sargent In seeking to enforce a restrictive deed covenant. Shelly v. the Potle~field and Fitzgerald cases. Commonwealth \!, Kraemer, 334 U.S. 1(1948). Patte/field, I WLJ (Mass.) 528 (1844) and 7 Monthly 36"Letter to Oovr Hancock." Law Reporter (Mass.) 256 (1844), concerned the brig I U.S. (16 Pet.) 539 (1842). For an excellent dis Carib, which arrived in Boston August 1844 bearing cussion of this opinion, see Paul Finkelman, "Prigg v. a slave passenger who had been placed on board in New Pennsylvania: CnderSlanding Justice Story's Proslavery Orleans for transportation to Cuba but had been denied Nationalism," I Journal ofSupreme Court History 51-64 entry< Shaw set him free on a writ of habeas corpus, on (1997). grounds that he was not a fugitive slave and therefore 3835 Mass. (18 Pick.) 193 (1836). could not be held in custody under federal law and that 39Robert Bolt, A Man For All Seasons (New York: Massachusetts law made no provision authorizing either Random House, Vintage Book Division, 1990), p. 66. his restraint or his forcible removal simply because he 40Letter, Jared Ingersoll to Charles Cushing, March 10, was a slave in Louislana< In Commonwealth v. Fitzgerald, 1798, quoting "Judge Cushing and Mr. Sedgwick" for 7 Monthly Law Reporter (Mass.) 379 (1844), the Chief the proposition that "the question whether under the Justice dealt with the case of Robert Lucas, slave present Constitution of the different States slavery could owned by Edward Fitzgerald, purser on board the Navy be said to exist ... had received a solemn decision in frigate Uniled Slates. A slave could not enlist, so Fitzgerald Massacl1usetts"· follow-up letter dated April 23; and re had secured Lucas's entry on the ship's muster roll as sponse, Cushing to Ingersoll, May I, providing a confused landsman and had arranged to have Lucas's wages paid to summary ofthe Jennisoll prosecution, all found in WiHiam himself. After two years alsea, the ship returned 10 Boston, Cushing Papers, MHS< "Jehovah Will Provide": Lillian Gobitas and Freedom of Religion JAMES F. VAN ORDEN* In 1935, Lillian Gobitas and her heard the words of Rutherford, the head of the Jehovah's Witness group the Watchtower on the radio in their kitchen, He Witnesses to refuse to salute the American since it amounted to the worship ofa false idol, which violated the law ofGod as set forth in the Bible, I Rutherford made reference to the courage of Witnesses in Germany who refused to salute Hitler in the face ofthe unbelievable oppressions of the Nazi and similarly called for American Witnesses to refuse to salute the flag, It was a message that struck a chord with Lillian Gobitas, Drawing on Rutherford's along Gobitas children were different from those ob with her exposure to Witness theology through that had come before however, her family and her own reading of the Bible, because they fought their all the Lillian Gobitas and her ten-year-old brother, way to the High Court refused to salute the flag at their At a very young age, Lillian Gobitas was public school in be drawn to the Jehovah's Witness 4 She cause they believed their forbade such later recollected: "Oh, that just really, really a demonstration, Their refusal led to their to me even I was years by the Minersville school old. , . I did go along with that in my board.2 in my own heart.,,5 One ofthe Witnesses' They were not the first Witnesses to refuse held beliefs was that saluting the flag to salute the flag and be would lead to eternal damnation. In Lillian would be against the of her classmates as Kansas in 1907, and three decades later it had morning. One can only imagine the immense been taken up in only 18 states. One hundred peer pressure on a child to con and children were known to have re form, In fact, at first the Gobitas children did fused for reasons to complv."} The feel pressured into LILLIAN GOBITAS AND FREEDOM OF ION 137 This handwritten note (above) by William Gobilas ex pressed the ten-year-old Jehovah's Witness's convic tions to the school board. The reasons Li Ilian Gob/las, his twelve-year-old sister, refused to salute the flag are in the handwritten nOle at left. the teacher would look my way, oh, up went my hand and my moved, you know ... 6 However Lillian and her brother found the courage to take the stand that believed their faith William refused to salute the flag on October 1935. Lillian was in spired to follow her brother's lead the next when she decided to remain seated the This drew the unwanted attention of her peers: "We.ll in class turned and looked. That of all .. . that ... But once I took my We felt strongly that the flag There were immediate ramifications was an emblem and that "",rTAren a ritual before an emblem would be a and her brother were nrn,rny,thl direct violation of the Second Com '"vu",.... '", "When I mandment. But that doesn't mean that 'Here comes Jeho I went to school and stopped salut vah!' and shower me with "8 ing. Oh, no! I was a real chicken. I The Minersville school board held a hear would saluting and then when ing on the Witness's salute refusal two 138 JOURNAL OF SUPREME COURT HISTORY Charles E. Roudabush (left), the superintendent of the Minersville School Board, expelled the Gobitas children for their refusal to participate in the flag salute ceremony at their school (below). LILLIAN GOBITAS AND FREEDOM OF RELIGION 139 weeks after the Gobitas children's initial stand. children were told they were still not welcome William wrote a letter to the school board, back in school pending an appeal to the U.S. stating: Supreme Court. That the Court would review the Gobitas I do not salute the flag because I have case was not a foregone conclusion. Li I!ian rec promised to do the will of God. That ollects that, "One time I asked in the legal de means I must not worship anything partment, I said, 'I would like to know why our out of harmony with God's law. In case was chosen.' They said, 'We don't know. ' the twentieth chapter of Exodus, it is It was just a fluke that they happened to pick stated "Thou shalt not make unto thee our case as a test case."ll Moreover, Justice any graven images nor bow down to Felix Frankfurter would refer in his opinion to them nor serve them." I do not salute the fact that in previous flag salute cases the the flag not because I do not love my Court had denied certiorari because the lower country but I love my country and courts had upheld the flag salute.l2 At least I love God more and must obey his four Justices felt there was sufficient need now commandments.9 to consider the case since the rights of the in But the superintendent of the school board, dividual had prevailed in the lower court. In Charles Roudabush, was not at all sympa effect, the lower court decisions pushed the thetic to the concerns of the Gobitas children, Supreme Court to weigh in fully on the issue. who he later stated in court proceedings had Lillian Gobitas traveled to hear the oral been "indoctrinated." Despite a plea by their argument of her case (in which the family father, Walter Gobitas, Lillian and William name was misspelled as "Gobitis") on April were expelled from school at the close of the 25 , I 940. She still remembers vividly: hearing. Walter decided to sue on behalf of his Mr. Joseph Rutherford, who was the children and found legal aid in the Jehovah's president of the Watchtower Soci Witness Watchtower Society. Rutherford, the ety ... argued the case at the Supreme group's president, secured initial victories for Court .. . It was packed first of all. the Gobitas family in the district court and the Mostly Witnesses, I'm sure. And the Third Circuit Court of Appeals. Both courts nine judges heard another case before concluded that the flag-salute rule infringed us. Some kind of corporate case and on the family's First Amendment right to free oh, there were interruptions, drop exercise of religion, as applied to the states ping pencils and paper and this and through the Fourteenth Amendment. Judge that and [the Justices were) inter Maris, who sat on both courts and whom rupting the lawyers ... Then, along Lillian recalls as "sweet," initially seemed to came Joseph Rutherford and he ar be their champion. He rejected Superintendent gued [our case) from the Bible stand Roudabush's notion that the Gobitas children point. And instead of all that shuf were indoctrinated by their parents. "He said," fling and interlllptions, there was not Lillian remembers, "from what I see of these a sound. It was so awesome .. . [H)e children, ... this is their perception . . . I really compared the Witness children to do think that we were not indoctrinated."lo He the three Hebrews that bowed down also rejected the school board's argument that before Nebuchadnezzar's image and the salute was not a religious act and that the were ready to be thrown into the compulsory salute was necessary to protect na fiery furnace. Biblical examples like tional freedom. But the school board was un that ... Everyone just paid rapt at willing to accept the ruling, and the Gobitas tention and that surely included 140 JOURNAL OF SUPREME COURT HISTORY me . .. And so we thought after that make the adjustment that we have because we had won in both courts, to make within the framework of well, it's a shoo-in. 13 present circumstances and those that This was not to be the case. Justice are clearly ahead of us .. . After all , Frankfurter wrote for the nearly unanimous despite some of the jurisprudential Court framing the question as one of national "real ists," a decision decides not cohesion versus the religious rights of the merely the particular case ... 16 Gobitas children. He ultimately sided with the . school board, based on his belief that regu Lillian Gobitas did have sympathy for lating the flag salute was within the purview what the flag stood for, especially in a time of permissible state action. He argued that of war: "This is a very sensitive thing, the "the courtroom is not the arena for debat flag salute, because when you think about how ing issues of educational policy . . . So to hold many people gave their lives for flag and coun would in effect make us the school board try and here we were not saluting."J7 Lillian for the country.,,14 Frankfurter reasoned that was not blind to the ultimate sacrifices that Jehovah's Witnesses should not take their com were made in the name of flag and country, plaints to court, but instead should have turned but she still felt that she should be granted a to their elected officials. The decision came as faith-based exemption from saluting, since her quite a shock to the Gobitas family, as Lillian religion required no less. recalled: Justice Harlan seemed to agree. He alone refused to join Frankfurter'S majority, instead One day mother and I were working taking the view that the Court must protect in the kitchen-we lived upstairs above the rights of "insular and discrete" minorities the grocery store. Bill was down help against the actions of majorities as set forth ing Dad downstairs and the news in his Footnote Four in the 1938 Carolene came on and they said, "In Wash Products decision. J8 "The Constitution," he ington today, it was decided by the wrote, "expresses more than the conviction of Supreme Court that the compulsory the people that democratic processes must be flag salute was correct." And it was preserved at all costs. It is also an expression of 8- 1 against us. We couldn't believe faith and a command that freedom ofmind and it. We were not prepared for that. We spirit must be preserved, which government just stood there in disbelief. . . . J5 must obey, if it is to adhere to that justice and The motives behind Justice Frankfurter's moderation without which no free government opinion can be gleaned from a letter he wrote to can exist." 19 Stone believed that it was the role Justice Harlan Fiske Stone, the lone dissenter, of the Court to protect the Lillian Gobitases trying to persuade him to join the majority. of the nation against majority-enacted laws The letter is dated May 27, 1940, around the that impinged upon their rights. Constitutional time the Gennan armies were moving west democracy demanded that they not simply be ward in Europe, and American involvement sent to the polls2o Stone recognized that leg was becoming increasingly likely. Frankfurter islative protection ofgroups like the Witnesses seemed to have these things in his mind as he did not offer them much recourse. wrote to his colleague on the Bench: In fact, the Witnesses were now more ex For time and circumstances are posed than ever. Lillian Gobitas described the surcly not irrelevant considerations time following her case as "open season on in resolving the conflicts that we Jehovah 's Witnesses.,,21 Newspapers carried have to resolve in this particular numerous accounts offire bombings, beatings, case . .. [C]ertainly it is relevant to and other acts of brutality against Witnesses LILLIAN GOBITAS AND FREEDOM OF RELIGION 141 across the country. There were even threats or other matters of opinion or force citizens to of violence the Gobitas gro confess word or act their faith therein."22 cery store in Minersville, although never Lillian Gobitas recalled a sense of materialized. when the Witnesses finally were victo Three years in West Virginia State rious: "Oh, we both won in the end. It was Board of Education v. Barnette, the Court our case either way ... We were thrilled. Ab reversed its decision the Witnesses. solutely thrilled. And you know, things Lillian Gobitas was in attendance for to wind down. Believe it or not, the oral argument. This against the dis cooled down. The rnobbings sent of Justice Frankfurter, the Court found wound down and everything got calm again. for the Witnesses not Kids went back to school. to salute the flag on free rather than religious freedom This remarkable Minersville v. A Personal about-face because Justices Hugo L. Legacy William O. Douglas, and Frank Murphy now vicwed their in the first case to Lillian Gobitas's legal struggle profoundly have been wrong and because newly arrived the course of her life. One might Justices Robelt H. Jackson and effects on the Gob also that the Gobitases should have pre itas family of their Supreme Court case vailed. In one of the most oft-cited statements would lasta Iifetime-a sad legacy ofthe faulty ever made by a member of the Justice of the time. But a review of Lillian's life Jackson wrote that "If there is any fixed star indicates the contrary. in our constitutional it is that no After being homeschooled for a short official, or petty, can prescribe what shall time, the Gobitas children received a be orthodox in religion, call from Paul Jones, who had read in the paper This store, which was operated by the Gobitas family in Minersville at the time of the case, was avoided by some of their customers after a local church organized a boycoH. "Business fell off quite II bit for several weeks and some of the customers never did come back," recalls lillian Gob/tas Klose. 142 JOURNAL S COU HISTORY about their expulsions and had decided to open a school on his farm about 30 miles away from Minersville for those Witness children who had taken a stand against the flag salute and were expelled. Lillian recalls her time there: We were very welcome ... About a hundred acres they had .. , , had no Just the kitchen had were so clean and so loving and so hard working. It was in credible .. It was like "Little House " you know. It was aU in one room. It was very But there were differences between the educa tion Lillian received at the Witness school on the Jones Farm and her public school: It was much the same. It was standard. But I did miss the class discussions ... and more detailed class discussions. It didn't matter. The quality was alright. A lot was left to one's own which was a good for years to come. I learned to be self-taught in many 25 lillian Gobitas went on to work at the World Head quarters of Jehovah's Witnesses in Brooklyn. She met her husband, Erwin Klose, while attending a religious After the Barnette the Gobitas conference in Germany. Klose had refused to serve in children received a letter from the Minersville the German army because of his religious beliefs and School Board in etfect but to had been imprisoned in a concentration camp. Lillian, it was too little, too late. then she and had attended a local business She "Let it be. We didn't think that her role in the case played a pivotal role in about the morality of it or the fairness her She "[T]he ofthe ofit.ltdidn'! occur to us. We were too ,.,26 Watchtower at the time often said that that did In short, she and her brother William had gone lead him to consider me because so few on with their lives. were chosen. ,,29 Lillian's role in the case created other im Lillian's stay in New York led her to do portant opportunities. She wanted very much work in Europe, where she met to work at the of the Watchtower the man she would later marry. She was first in atatimewhen "didn't attracted to Erwin Klose because of his fine take girls much at all."27 Having been the plain singing voice. He spoke no English and she tiff in the case made it possible for her to go spoke no German, but they formed an imme and work there, at a place where she was sur diate bond. Erwin came to the United States rounded by "giants of faith."28 Lillian felt sure and attended missionary school in Ithaca, LILLIAN GOBITAS AND FREEDOM OF RELIGION 143 New York, where he learned English. He later She remembers her husband about this crossed paths with Lillian in brave doesn't mean you're not She attended missionary school as well, and scared."34 studied German. As newlyweds traveled Lillian "a wonderful life" with her to Vienna where Erwin was to do husband and their two who also had missionary work. "We had a marvelous time," the courage to take a stand the flag Lillian later recalled30 salute. Unlike their mother, suffered no and were able to finish their pub lic school educations-~a direct legacy of her Historic World War II Context for before them. 31 the Gobitas-Klose Union years after the Court ruled on her case, Lillian was asked if she still Lillian Gobitas's refusal to salute the flag took had hard feelings for school Superintendent on particular because of the time Charles Roudabush, who had held an unre period during which it occurred. America was lenting the Gobitas children so on the cusp of World War and patriotism many years before. She was high. It was not the time to show dis unity. As Lillian was embroiled in the We always thought, "Who knows?" salute controversy, German Witnesses were Because sometimes in the taking a stand the Nazi regime on the concentration camp would become other side ofthe Atlantic Ocean. Witnesses. would see all that any worldly government, refused to serve in and it would move them to take a the German armed and declined to stand. So, you know, we thought. .. towards Hitler one-armed "Heil some he will see the light, Hitler" salute), as so would be an act so to We didn't have any per of worship of a false God. Those who took sonal vendetta against him. 35 such a stand the German state, in cluding Lillian's future husband Erwin In short, in the face of Lillian were imprisoned, and forced into Gobitas retained an unwavering commitment concentration camps. As Lillian recalled, "Er to Witness Whether the onlnress win was in the concentration camp at the very came at the hand of a school board or a same time that I was Like both wife and husband his wife, Klose remained true to his faith for their ultimate transformation througllOut his ordeal, although the hardship to Witness ways. he suffered at the hands of the Nazis was far On balance, Lillian Gobitas Klose's more severe than the inconvenience his wife chance inclusion in the compulsory-flag-salute endured. drama affected her life for the better. Were it Lillian tells her husband's not for the case, she would not have gone to . work at the Headquarters, would not have gone His mother told me that when he was to and would not have met her hus led offto the concentration camp, she another champion of the Witness faith. said that she and her sister was watch- "Those things would not have happened oth from behind the curtain as they " she believes. "It the course led him away and my husband said of our lives. I call it the life. that he was silently It Where the Minersville School Board, with was very frightening to be taken on a the stamp of approval of the Court, train. had closed doors based on Lillian's rPI'PI(mSIV 144 JOURNAL OF SUPREME COURT HISTORY based refusal to salute the flag, her faith and II !d. led many new ones to open. 12 310 US. 586, 592 (1940), IJ Van Orden. 14 Minersville School Distriel v. Gobilis, 310 US. 586,598 ¥The author's thanks go to Donald Grier ( 1940). Jr., who read a draft of this essay 15Van Orden, and made helpful comments. in Alphells Mason and Donald Grier Stephenson, American Constitutional Law: lntrodllc tory Essays and Selected Cases (2002) al 562, ENDNOTES 17Van Orden. 18Uniled Stales v. Carolene Products Co" 304 US. I Specifically, Exodus 20: "Thou shalt not make unto thee 152, n.4 (1938). any graven images nor bow down to them nor serve them." 19 310 US, 586,606-07 (1940) (dissenting opinion), 2For a biographical discussion of the circumstances sur 201t almost seems as if Stone prophetically sensed en rounding the case during the J940s, see David Manwaring, slling backlash against Witnesses followed the announce Render Unto Caesar: The Flag Salute Controversy ment of the decision, (1962) (hereafter cited as Manwaring). 21 Van Orden. 3rrving Dillard. Flag Salute Cases," III John Garraty, Virginia State Board ofEducation v Bamelle, 319 cd., Quarrels That Have Shaped the Constitution US. 624, 642 (1943). (1987) at 226. See also Manwaring for additional informa 23Van Orden. tion related to the history of the flag salute and religious 24/d. refusals to participate, including Witnesses and other reli 25 !d. giolls sects. 26!d. 4 For a detailed disclission of Lillian Gobitas's life, includ 27 !d. ing her case, Peter Irons, "We Live by Symbols" and 28 !d. "Here Comes Jehovah," in The Courage of Their Con 29/d. victions (1988) at 15. 301d, SJames Van Orden, phone interview with Lillian Gobilas For a discussion of the persecution of Witnesses in Klose, March 12, 2003 (hereafter cited as Van Orden). America and Germany, see generally Shawn Francis Old. Peters, Judging Jehovah's Witnesses: Religious Perse lid. cution and the Dawn of the Rights Revolution (2000). 8Lillian Gobilas Klose, "The Courage to Put God First," 32Van Orden, Awake!, July 22, 1993, 14, 33 fd. of William Gobltas, Library of Congress, 34 fd. Washington, D.C. 351d. 10 Van Orden. 36 !d. To Sit or Not to Sit: The Supreme Court of the United States and the Civil Rights Movement in the Upper South PETER In the early I 960s, Ford T. Johnson Jr. was an a black college in Richmond, Virginia. So was his 1960, they and dozens of classmates headed downtown to in sit-ins directed at arrangements at the eating venues in the stores that lined Broad Street. What motivated the 10hnsons and the other black students who the sit-in that was a commitment to to an pnrl-I'\po ofdowntown Richmond's lunch counters. Whether the racial discrimination in those stores reflected the express mandates of state laws and city ordinances or the private decisions of various did not matter to the demonstrators. Even if service had been within the law, management at lunch counters and other """"UI.I"tIl trespass would still have called upon authorities to eject demonstrators From that in 1960 until passage . tection, due process, property rights, and state of the Civil Rights Act of 1964, sit-ins took action. place across the South. Some led to tion without arrests, but in every former Con The Civil Rights Movement federate and border state, demonstrators were rounded up and arrested. Dozens ofcases made Most studies of the civil movement of their way to the Court of the United the 1950s and 19605 have focused on States, such issues as equal pro- South communities-notably Montgomery, To Sit or Not to Sit: The Supreme Court of the United States and the Civil Rights Movem nt in the Upper South PETER WALLENSTEIN* Ford T. Johnson Jr. was an a black in Richmond, So was his 20, 1960, they and dozens of classmates headed downtown to in sit-ins directed at seating arrangements at the venues in the stores that lined Broad Street What motivated the Johnsons and the other black students who In the sit-in that Saturday was a commitment to bring to an en(I-~neQ ofdowntown Richmond'5 lunch counters. Whether the racial discrimination It'nr,,,,,,'t'i in those stores reflected the express mandates of state laws and ordinances or the private decisions of various did not matter to the demonstrators. Even if service had been within the law, at lunch counters and other establishments, relying on would still have called upon public authorities to demonstrators From that FebnJary in 1960 until passage due process, property and state of the Civil Act of 1964, sit-ins took action. place across the South. Some led to tion without arrests, but in every former Con The Civil Rights Movement federate and border state, demonstrators were rounded up and arrested. Dozens ofcases made Most studies of the civil rights movement of their way to the Court of the United the 1950s and 1960s have focused on such issues as pro- South Montgomery, 146 JOURNAL SUPREME COURT HISTORY On February 1, 1960, a group of black students from North Carolina A & T College who were refused service at a luncheon counter reserved for white customers staged a sit-in strike at the Woolworth store in Greensboro, North Carolina. Ronald Martin, Robert Patterson, and Mark Martin are shown here seated at the lunch counter, as they remained throughout the day. the cradle ofthe t"o,"tAt'""30'tt where Before the month of February was out, activists such as Rosa Parks and Dr. Martin sit-ins had taken in several cornnmni Luther Jr. operated and institutions and ties in too. At first the organizations such as Dexter Avenue Bap as the Greensboro students had, on tist Church and the Montgomery the practice of white stores African ment Association fought for Americans from eating facilities. Soon student trast, this study lUlt::MtotS tanzeted other where whites in the but not blacks could have access and gained 1960s. widespread support among black residents of On Monday, 1, four young their communities. As in the South, racial men, students at the North Carolina Agricul came under tural and Technical a widely South as well. publicized sit-in at a Woolworth Store lunch counter in Greensboro. I Sit-ins had been oc The Richmond Sit-ins Begin were underway for a The North Carolina sit-ins on Febru in Nashville, Tennessee. 2 But the Greensboro ary 1. Black students in Richmond one was the first to capture the did not take action for nearly three weeks tion of numbers of after but they did not sit idle: larly black southerners. The Greensboro lunch were carefully planning their own 4 counter sit-in was replicated in towns and cities On 20, at about 9:00 across the South, including Atlanta, a.m., approximately 200 students and Tallahassee. Florida.3 on downtown Richmond. The group went first TO SIT OR NOT TO SIT 147 to the Woolworth's store, on Broad Street at ers as classmates at Union. The two lead Fifth. Ignoring the small counter at the back ers took pains to characterize the demonstra of the store set aside for black customers, they the thirty-four seats in the sec tion reserved for whites. Store officials quickly ceded strong sympathy with similar demon closed the white section. The students contin strations elsewhere. Richmond was one ued to sit talking among themselves or read of many offshoots of the original Greensboro ing. Meantime, when a small group entered protest. at Broad and At about I :00 p.m., managers at Murphy's the manager closed the lunch counter even and Woolworth's both announced they were the students had not to sit closing the stores, and the demonstrators there. 5 left. Soon afterwards, the group moved into About 9:30 a.m., a group went into Thalhimers, at Sixth and and tried to nearby G. C. Murphy. They took all take seats at an four four seats in the whites-only and it too was closed. about the demonstra wait in line, but took seats at the soda tion, students that they had come as fountain in the basement and at the lunch bars individuals, though two, Charles M. Sherrod on the main floor and the mezzanine. All four and Frank G. Pinkston, identified the oth were immediately closed. Thalhimers Department stores and drugstores throughout the South relied on trespass laws to keep blacks from eating at their lunch counters on the ground that they had the right to deny service to whomever they pleased. These men picketed a Woolworth's to protest its segregation policies. 148 JOURNAL OF SUPREME COURT HISTORY the demonstrators to leave the tions "Our store, and after 45 minutes did so. William B. Thalhimer Jr. announced that the store would remain open, but that the eat- The Thalhimers Thirty-four would all remain closed for the rest On the of Monday, the The group moved up Broad Street to Peo- demonstrators returned for a second day of Service where took all lunch counter This time there were the available seats at the counter. Service was did not sit at the lunch halted as soon as they did so. The manager counters at Woolworth's or announced that the store would close for ten places their places closed all and when it opened it would be for But about thirty sat at the lunch counter at business only. Grant's. The counter then closed. After one Asked whetherthe orotests might end any half hour, the students left. and the counter time soon, Charles Sherrod was dents and indicated their to meet counter at They also were refused ser with retail merchants in the downtown area. vice, and again the counter was closed for a But he made clear that the group had no inten time.6 Similarly, on April 14, 1960, a group of ministers, in cooperation with the Congress of Racial Equality, picketed a Woolworth store in New York City to protest segregation at the chain's lunch counters in its Southern branches. TO SIT OR NOT TO SIT 149 Thirty-four Richmond, Virginia, students were arrested for trespassing at a sit-in at Thalhimers' segregated lunch counter on February 22, 1960. This student protester waved at photographers as he entered the police wagon. Some groups went to Thalhimers. the process of booked and then to enter the released on $50 bond. Each time some of a tearoom on the fourth the students exited the lockup, the floor. Others went to the lunch counter on the and cheered. The first floor. Refused and asked to who had been involved Sherrod and Frank Pinkston-as well as The lunch counter the Richmond Room remained open for white guests. Store officials called for magistrates and again that the students leave. sister and brother, At each of the two places-the tearoom Johnson and and the lunch counter-seventeen arrests were Jr., the children ofa Richmond made. As the Richmond Times-Dispatch re Tucker Johnson Sr. ported, there have been many more, but Aner the initial sit-ins and the ar not all the students Dr. E. D. McCreary . rests, protesters launched a sustained Jr., a th",olr.o\J cott. Students returned the next HT(1,p~·tpri t hat many stu February 23-a little before 11 a.m. But the dents leave. He advis numbers were smaller this ing the students to leave because we believe we facilities at all six have the case." targeted on Saturday and Those who left walked over to the Thalhimers, Woolworth, on Sixth Street at where they waited for their classmates to com cused on Thalhimers, the scene of the arrests 150 JOURNAL OF SUPREME COURT HISTORY the day before. Rather than remained outside and store. distributed Richmonders not to not to "Thalhimers had cause they tried to exercise their constitutional Don't buy in. this store!" Amon~ the slo~ans on the was "Can't eat ... Don't buy. The Thalhimers Thirty-four Go on The first of the Thalhimers four to go on Gordon Pinkston-faced Harold C Maurice in police court on March II. were Oliver W Hill, Martin A. Clarence W Newsome. The defendants and their tried to show that race had been the governing consideration behind the arrests. Maurice sustained Commonwealth's Attorney James B. Wilkinson's objections and prevented any such testimony from being in troduced. As the Richmond Afro American's headline it, "'Why?' Is The principal witness Newman B. l-f"mhlptt store. He testi fied that the students had been in the restaurant area on the fourth floor and that, after asking them to leave the store, he had authorized tres Civil rights attorney Oliver Hill represented the Thai· pass warrants to be issued them. He himers Thirty-four at trial. He argued that race was the governing consideration behind the arrests. conceded that the store had been open at the time and that when the arrests took at least other patrons had been on that floor. Martin asked. "Well, what was this oarticular Maurice sustained the 9 Martin tried person doing that was different from any other again. Was he doing "anything" in any way The prosecution "What he "disorderly"? "No." "Then why did you ask was domg is irrelevant. He is not him to leave?" Sustained. "Did you with disorderly conduct, only with trespass ask any other person to leave?" Objection. is that he was asked to leave Sustained. "Did you ask any white persons of a and he to leave?" Objection. Sustained. "Were all the refused to do so, which makes him guilty of persons you asked to leave colored?" Now the under the Virginia code. No reason judge "This is not a racial issue." asked to leave is required." Judge At such a oreoosterous notion, as it seemed to TO SIT OR NOT TO SIT 151 a number of African Americans in the Court. Not for many months would they learn courtroom laughed. the results. In the sit-ins spread else Unable to get answers on the record to in Richmond and across other com these and simi lar questions, Martin that munities in for "the store was open for public and example, in an action that after this man was a business invitee." He was the Richmond the city library was the what other such business invitees were In April, Harmon Buskey Jr., a young in the store, and "no one had any busi veteran and restaurant employee, led him out." Martin concluded the a series ofactions in the east end of Richmond thought and established the that he an that quickly successful. ll ticipated would be the basis for an of his clients' convictions: "And just because he At the Virginia Supreme Court failed to leave, ordered to without rhyme or reason, he was arrested. J maintain that this On 1961 a little over a year afterthe is a violation of his legal and constitutional trials of the Thalhimers Vir rights, and that he is being denied pro Court upheld the convictions tection of the law." of Raymond B. Jr., Ford T. Johnson Martin's Hill elaborated the ar and the other thirty-two people who had gument and pointed toward another clause in been arrested on 1960, for the Fourteenth Amendment. "We are not at in at the Thalhimers store in downtown Rich tacking the constitutionality of the [Virginia] mond. could "on purely trespass statute. If someone goes into a store and does that he should not something that affects the operation of the with approval from a previous certainly the law is applicable." Chief Justice John W. declared it Hill was not the situation here. to be "well settled the general "What action of this defendant," he wanted to public have an implied license to enter a re know, "was different from the action of other tail store, the proprietor is at to revoke customers there at the time? I submit that in this license at any time as to any individual, '",."",,>nl of that situation, you and to eject such individual from the store if him due process. he refuses to leave when to do so. Trials of the Thalhimers Thirty-four con The Virginia Supreme Court said about tinued. Each time, the ritual unfolded much the Thalhimers on one page of its as the first rendition had, with the students' opinion: "Because of their race were re lawyers seeking to introduce race as the rea fused service at these facilities." Yet on the son for the arrests and upholding the next page, it said about Raymond RandOlph that the only reason "There is no evidence to sup relevant to the proceedings was that they had failed to leave the store when asked to do so. 'cause of his 'race or color.' On the contrary, On March for seven the evidence shows that he was arrested be students faced among them Elizabeth cause he remained upon the store af Johnson and Ford T. Johnson Jr. These seven ter having been forbidden to do so by had been at the soda fountain and lunch counter Ames [the personnel the duly au- on the first not the restaurant or tearoom of the owner or custodian. on the fourth floor. [0 to leave when asked to, Randolph The Thalhimers Thirty-four violated a state trespass statute. "It would, in their convictions to the Virginia deed," the court vv,,,.... 'uu.vu, "be an anomalous 152 JOURNAL COU RT H I STORY situation to say that the ofa privately to and no other. The cases owned and busi ness may lawfully use were tried and affinned on the the reasonable force to a from his ory that these differences and yet may not invoke judicial pro in fact can make no difference in cess to protect his rights." State action had result-that the right to choose those in no way, been employed in vio who come or stay on one's property lation of Randolph's constitutional is ... an yielding to no com der the Fourteenth Amendment. In to considerations. serve him and then refusing to permit him to Yet, declared the Thalhimers "in stay on the Thalhimers had "violated this case the of private property collides none of his constitutional " and thus the with the Fourteenth Amendment right not to be lower court's was "plainly "14 subjected to public racial discrimination."15 According to the Supreme Court, the Thalhimers Thirty-four remained guilty of Sit-in Cases and the U.S. Within three months, on July 24, Court for the Thalhimers filed an ap peal to the Supreme Court of the United The Court faced dozens of sit-in States in which they contested the cases in the early I 960s. The first wave pre Court's rul ing as inconsistent with the ceded the case of the ThaJhimers Thirty-four. Fourteenth Amendment's restrictions on state In Garner v. Louisiana and two other cases action as freedom from decided in December 1961, and due process. The the Suoreme Court overturned all the COI1 conceded the to rely on trespass laws to was not at prop- prOfect a person s home, but Thalhimers de remained secure; a officer partment store, they insisted, could claim no had arrested the students without any such privilege: from the owner, who simply de clined to serve them. ChiefJustice Earl Warren Thalhimer's, a public commercial es wrote the ooinion of the Court holding that tablishment to which were there was not evidence to convict the invited, is the home of no one, and Inc. was not in this case were no dissents from a mere "personal" choice Warren's the Court's apparent una but has invoked state power to help masked a divergence in n",,·cn,'0t. the force of massive custom that made the decisions in subsequent sit-in racial which in cases by no means certain. Justices William O. its turn has long been supported Douglas, Felix and John Marshall state law and policy. The "property" Harlan concurred in the outcome, but each for interest ofThalhimer's, Inc. is an ex a different reason and with a opinion. narrow one, for these Justice Frankfurter saw no evidence ofa crime, with the public, were he for the "mere not so much "invited" as could not justify a guilty verdict for "disturb to come into ing the peace.") 7 they abstained from the Justice Harlan wrote: "I agree that these bidden fruit of convictions are unconstitutional, but not for few restaurants; the the reasons given by the Court." In Garner, at stake is the protesters had not been told by the proprietor TO SIT OR NOT TO 153 to that they would obtain service activities came when a mun if they moved to blacks' customary of dane encounter with the law turned unexpect the establishment. So they remained In the edly into a civil rights store, "with the consent of the man " and Harlan saw an issue of demon Courtroom Segregation-Where to Sit? strators' First Amendment freedom of politi cal had the owner's Black Virginians, like their counterparts across consent to be there. He went on to note that the South in the early I 960s, racial a "peaceful demonstration on public streets, wherever they encountered it in and on private with the consent ofthe public U'l1'<.;t:~-'lll public on public owner, was constitutionally protected as a form transportation, and at lunch counters. In some nrf'<:<:'lon ,,18 cases, they took action against segrega Justice thought tion. In other cases, took direct gree of whites' commitment to In were and ended up in court anyway. Louisiana, the demonstrators surely threatened In court, they often encountered segrega the peace by their action, so there was tion in the sufficient evidence to sustain the convictions. arrangements that characterized many south Yet he insisted that the had occurred ern courtrooms. if they challenged the in places of public the sit-in of such arrangements, raised participants had a to be there to seek and new of what the Constitution get service; and the actions ofthe in ar particularly the Fourteenth Amendment them, and of the courts in N\rlUlf'Tl permitted or required in the administration of constituted state action in violation of Protection Clause of the Fourteenth In the of I Ford 1. Johnson Jr. Amendment. Where a business was operated was in his final term at Virginia Union Uni he "under a license and living at home in Richmond when that de- he went for a drive one day in the family car. He was arrested by a police officer for driving a white citizen of Louisiana, "should not have with expired and without a driver's permit. under our Constitution the power to license it He did not know, he later that the license for the use of only one race. For there is the tags had expired, or that the new tags were in overriding constitutional that all the car waiting to be put on, His sister "razzed state power be exercised so as not to him" later that day, his father recalled many rotlectllon to any group."19 for arrested for not hav The early cases supplied straws in the on his car that was there wind, but no conclusive direction that the in the car with Court follow in Randolph v. Virginia. Johnson in traffic court, at Would the Court even take the case ofthe Thal Eleventh Street and on the afternoon Ifitdid, how would it rule? of April 1962. Traffic court took place in Those questions remained hanging, for the an the same building, even the same room, as po swers did not come until much later-the rul lice court-but in the afternoons rather than the ing was not handed down until June 1963. In it was Johnson's second time in the meantime, participants in the civil rights that room, two years after his trial as a member movement in the Richmond area ahead of the Thalhimers 21 both in their civil activities and in their to "get the over with," he lives. For one of the Thalhimers later with as little fuss as possible, he four in particular, those lives and civil took a seat near the back, on the window side 154 JOURNAL SUPREME COURT HISTORY ofthe courtroom. "I just sat " he says, "in "it never occurred to me that the court the first available seat." But then "this entire room was " too. In short, he ob situation occurred." He noticed that court offi "There was no intent to go there cials seemed troubled about somethi and stage any demonstration" that he could not tell what. The bailiff came over But when he found out about the rules and and asked him to leave his seat and move to was directed to follow them, he he later the other side of the courtroom. When John between two "two respond to this di-. sets of pressures. One was an inclination to rective, Herman A. himself do as he had been told, an inclination rein took action and called him to the front of the forced by any black southerner's education in courtroom.22 the of Another inclina With that order, Johnson complied. Still tion, however, was to emancipate himself from unclear as to what he was doing that could that ingrained to follow discrimina be the cause of any concern, Johnson left his rules. Johnson had "an interior propen seat and went to the front of the courtroom. to which, especially Judge Cooper then directed Johnson, as was been in court two years " he "had clearly later to "remove himself from in front of made the break from that world" of necessar the bench and take a seat"-·more specifically ily following the dictates of 25 He to take a seat in the section of the courtroom would not defy the court's return- reserved for African Americans. Directed to to the white buthecouldnotsubmit the other side of the courtroom from where he to unrighteous authority and go take a seat in had Johnson to realize that he was the black section. So he moved aside and then asked to do something that he could not, just stood. and would not, do. After all, Ford T. Johnson Jr. had been one ofthe Thalhimers Thirty-four. Case? He was not to the order without putting up some kind of certainly The traffic violation could be handled in traf without hesitating-which itse! f could be, and fic court johnson was fined $20 and that was was, construed as an offense the author- that-but the citation for contempt lived on. of the court. Johnson was removed from Before to pursue Johnson's case, the the courtroom for about fifteen minutes be various National Association for the Advance fore being brought back for trial on the traffic ment of Colored People in violations and the contempt citation. He was Richmond differed in their views as to whether " as was this case would be seated, but insisted on in front of case, one that raised the constitutional the bench so that other cases could not question The contempt citation satis be heard. Judge imposed a $10 fine, fied one condition. Dr. Johnson later remem which he bered without that "we would held that he did not have had no leg to stand on." But was there into the courtroom that about the about would be In Johnson Jr. 's behavior, quite aside from his his previous appearance in the same court racial identity-that have justified the room two years earlier for his on the citation? He had not raised his voice, or kicked Thalhimers sit-in, it had not been so. Moreover, a chair, or done anything of the sort to regis while he understood the ways of ter a to authority--except stores and lunch counters, he said to refuse to sit in the "colored" section. And TO OR NOT TO SIT 155 yet, might the fact that he had folded his arms judge so the judge said to lock him be constmed in itself as an act of defiance? up." As for Johnson, he testified that, yes, he A nOn1P\! Roland D. later recalled that he had been more than once, to move to the had the case was other section and had failed to do so, but no, and that, moreover, the John- he had not continued to stand in front of the sons were willing The decision was Rather he had taken several steps away made. Now was the time, and this was the over "near the counsel table." The "told case26 me to sit down. I told him I to not after Johnson Jr. 's ad stand. I stood there and crossed my arms, but venture in traffic court, W. Lester ex it was not in any defiant manner.,,29 The hus ecutive secretary of the state NAACp, called court determined that "the sole issue" was the Johnson household to express an interest one "('{mt'>rn'~t and not whether the Traffic in young Johnson's case. For one thing, the eI Court ... was " Of course Johnson der a dentist in Richmond, had been was 30 involved with the local NAACP Johnson and his did not up. ter. For another, the ofcourtroom seat Next stop was the Supreme Court. ing had long rankled. The In their notice of appeal to that court, John among the Richmond son's lawyers insisted that "there was no ev in an African American group, the idence of any misbehavior or con Old Dominion Bar had duct" Johnson, that "he was requested to that both the traffic court and the police court move his seat because of his race and color," do away with seating Moreover, and that "the real basis of the charge the NAACP had been considering the issue him" was "his refusal to so move." In the pe of eourtroom segregation as one that tition for a writ of error, again argued serve to recruit new members. Banks wanted to from both due process and protection pursue the possibility that this case that Johnson's Fourteenth Amendment rights might prove the test case to challenge such were being violated. The state, in part obtained the Johnsons' on a recent federal court decision, Wells v. consent, became one of Ford Johnson's Uti"",,,, argued that Johnson's case had no attorneys in the case. Johnson appealed his conviction to the On October 5, 1962, court of the City of Richmond. His formulaic lawyers contended that Johnson's conviction sit-in case, the Virginia "",nrpmp. in traffic court had violated his under termined that the of the hustings both the Due Process Clause and the Equal court about the contempt citation was "plainly Protection Clause of the Fourteenth Amend " Johnson's petition for review was de ment. Johnson, it was was nied and his conviction affirmed. The "punished for violation of a racial segregation in June and October left intact the outcome rule. back in Courts could their At the hustings court on Monday, June courtrooms, and people in those courtrooms 18, witnesses all that Johnson had not had to obey the orders of court officers en- been making any commotion. L. B. Turner, the such bailiff who had asked him to leave his seat, ex Would the U.S. Supreme Court agree to LJtalUV"". "I asked him to move. He would not review the case? Johnson's hoped move so the judge told me to tell him to come so. Advised that they planned such an ap forward. Then he refused to sit down where the the Court the 156 JOURNAL OF E COU HISTORY enforcement ofits for three months, un- the motions of saying how important it is to til January 3, 1963. maintain courtroom decorum etc. And how the Cr. was clearly valid power etc. Then when resp. gets to the guts of the Johnson v. Virginia (1963) lem he reasons like this: I) the 14th amend. On January 2, Roland filed an ap citizens no 2) thus did for Ford Johnson. "This is a very plain not have the to sit where he wanted to in and simple case ofa criminal conviction based. the ct. jf he could sit where he wanted to upon petitioner's refusal to a racial seg he could c1ao--iustice would then go to pot. rule in a courtroom," he wrote keeping in his petition for the nation's court to do. To me, at to review the actions in the Virginia courts. is obvious that the 14th amend. a per Under the Fourteenth ar son the not to be discriminated against a state could not enforce racial segre the state on the grd. ofrace. Resp. concedes gation on government property. The action of that the ct. here was upholding an old the courts surely as "state action" un tradition cts."35 der the Fourteenth Amendment "Indeed," he The Justices did not all agree. Justice continued, "racial distinctions in courts of law Potter Stewart wanted to deny the are particularly inimical to the American ideal for Johnson '5 case "involves interna I arrange of for all which is embodied in ments in the courtroom," he said. and did the equal protection clause of the Fourteenth not merit consideration. His Amendment." Johnson's "refusal to take a seat hClwPvf'r found in the Negro section ofthe courtroom 29, tified since had a right to sit in a which reversed the state courts and directed courtroom on a basis. that Johnson recover $100 from the state of Therefore, petitioner's conduct could not be Virginia for his costs. After the determined to be of court except uncontested facts about Johnson's behavior the the ofan unconstitutional segrega- year, the Court declared: "It is clear from the totality and Justice William O. UUUl!Ii:1~ clerk wanted ularly the fact that the petitioner was peaceably to see the state decision summarily reversed. seated in the section reserved for whites before He saw the matter the way Johnson and his summoned to the bench, that the arrest attorneys had-that the conviction clearly vi and conviction rested entirely on the refusal olated the Fourteenth Amendment. The order to with the Johnson had refused to was "about as ments imposed in this particular courtroom." as they come, and r can see Then came the stated in no reason why the adm[inistration] of justice language: "Such a conviction cannot stand, for obedience to such an order." Before it is no open to that a State may to the point of a summary not constitutionally require ofpub however, the clerk advised that the Court first lic facilities." With more reference to a response from the state, and such a the facts in Johnson'5 case, the Court asserted: response was ordered on 10. 34 segregation in a court ofjus The state's response did not As tice is a manifest violation ofthe State's duty to Justice clerk-who offers what is deny no one the equal protection of its laws. probably a good of the central ten The New York Times announced the dency of thinking on the Court~-summarized news---on page one, above the fold-the next the state's argument, goes through all in a story by Anthony Lewis, "High Court TO SIT OR NOT TO SIT 157 Bars Any Segregation in a Courtroom." The its oft-pronounced new racial order Richmond Times-Dispatch did much the same, of things. That impatience is likely though below the fold 38 to become shorter and shorter as The Richmond Afro American was jubi these states continue their contemp lant. In addition to a news story, it published an tuous practice of needless and end editorial, "The Court Shows Its Impatience." less appeals of cases where constitu The nation's High Court, the editorial ob tional questions clearly are no longer served, "took only three sentences to declare at issue. This Dixie game of delay this ancient Dixie custom 'a manifest viola by appeal is rapidly running out its tion ofthe state's duty to deny no one the equal course. The facing up to stern re protection of the laws.'" The black voice of ality inevitably must come. Surely Virginia's capital city brought out what it saw even they must finally realize that the as the larger implications of the Court's deci United States Constitution must have sion, which it termed "a welcome and a historic as much meaning in Mississippi as it decision, advancing by another giant step the does in Minnesota or it has no mean century-old struggle to wipe out the terrible ing at all. wrongs perpetrated under the legal illusion of 'separate but equal.' The decision is certain to The stakes were high, the paper was say have a widespread impact on police and trial ing, and Ford Johnson's victory had brought a courts in the belt of Confederate states from good day to black southerners everywhere. His Virginia to Texas. But more important than the resistance had led to a pronouncement by the abrupt ruling against this long injustice prac Supreme Court of the United States that went ticed in what are supposed to be chambers of far to undercut segregation in all government impartial justice, was the court's one-sentence facilities. The rationale of Plessy v. Ferguson death knell pronounced on all enforced segre and "separate but equal" had been rebuffed 4o gation of public facilities." The paper went on yet again. The logic of Brown v. Board of" to notc that, according to the Supreme Court, Educatiol1- -about public facilities, racial seg it was "no longer open to question that a state regation, and equal protection-continucd to 41 may not constitutionally require of echo through time and spacc. public facilities. This clearly means that the na tion's highest court has not frowned upon Ford T. Johnson and Johnson II. Virginia segregated seating in courtrooms, but is serv ing blunt notice that such quaint Southern cus Johnson was not in the country when the toms as racially separate drinking fountains, Supreme Court's decision came down. In be restrooms, tax windows and even prison cells tween the original citation for contempt in stand in violation of the Constitution."39 April and the decision in hustings court in Black southerners could see that the tide June, he had graduated from Virginia Union of history had changed direction. What had University. The commencement speaker that been law for so very long no longer was. The year was historian John Hope Franklin. And editorial raised its voice another octave: a new program, inaugurated the year before, during John F. Kennedy'S first year in the That the court chose to hand down White House, drew Johnson overseas to Africa. this sweeping decision buried in a On the same day in 1961 that the Virginia bundle of orders was but one more Supreme Court upheld Johnson's conviction indication ofthe high tribunal's grow for the Thalhimers sit-in, Peace Corps director ing irritation and impatience with the R. Sargent Shriver said, while in Accra, Ghana, Southern refusal to accept as final that he was finding so much demand for Peace ]58 JOURNAL OF SUPREME COURT HISTORY Ford T. Johnson Jr. was away in Africa in the Peace Corps when the Supreme Court announced its decision in the court room segregation case. In this photo, attorney Roland Ealey (second from left) hands the plaintiff's father, Dr. Ford T. Johnson Sr. (left), a copy of the court's decree. Corps volunteers that the ageney might not be cafeteria, but the case of the man who had re able to meet the demand 42 fused to sit as directed in a court Two years on the job with the Peace room, Either way, Ford Johnson had declined in Johnson was called by his to obey the dictates of the of segre supervisor and asked whether he knew that he gated seating, Either way, many months was on the front page of the New York Times, the Supreme Court of the United States was Johnson that the case of the Thal telling him he had had a constitutional right to had been decided, do as he had done. had won their appeal to In going to Johnson had been, JI1 43 the nation '5 court As it happened, part, buying time before a final deci the Court had not decided that case. What sion as to whether to enroll in dental schooL had been decided was not the case of the man was his father a but he him- who had insisted on sitting in a whites-only up in the Sputnik thing." so he TO OR NOT TO SIT 159 studied math and science. But his father had it was held that the Fourteenth Amendment said something to the effect that, to be a of the ten had been violated. On ac he "had to learn all the bones before he could count of their race, the authority of the state focus on the teeth," and increasingly Johnson had been called upon to arrest them and re Jr. just knew that neither science nor medicine move them from the lunch counter. Thus, said was what he wanted to do. The news about the the they had been denied the Supreme Court and the New York Times made r"t.~f"tl"n of the laws. 47 something cl ick that changed his career course. the day the Peterson de Instead ofgoing to medical schooL he cision was handed down, the Court also is to law school, and it was in law school that he sued of similar cases in 44 enrolled upon his return to the States. 11HI9"':1H, New Orleans, and The time came when, as a student at North Carolina. Another-Wright v. Harvard Law School, he was asked in class rI!la~~n~Ia1[ea to six young black men who DHHt:SSl)r to review the case of Johnson had been "convicted of breach of the peace for v. The reported decision was brief basketball in a park and revealed little detail in fact or afternoon of Johnson's account went the material "owned and available there-he was "bringing in some for recreational purposes" facts that were not apparent from the record," and used by whites."48 he later recounted. "Tell us, Mr. Johnson," he Each of the cases had local attorneys as was "how do you know these other well as national NAACP Once the or about the case? Because, he replied, I ganization had decided to participate in the am that Mr. Johnson.,,45 Years later, he still litigation, the was vigorous and recalled that moment in law school with par coordinated. In the case of the Thalhimers ticular satisfaction. That was "the high point," Randolph v. the local he says, of the entire experience in what his attorneys were-as had been from the father proudly remembers as "the case that de A. Martin and Clarence the nation's courtrooms."46 HaJrJGO!/i}n v. Virginia (1963) On three weeks after the deci sion in Johnson v. 1'''"aIl"'/1 the Supreme Court The various decisions in Peterson and the announced its decisions in a number of other other cases elicited widely responses. cases. Peterson E Once again, the to(:nnlOn'Q to be the case in a cluster of sit-in jubilant. contrast, the Richmond Times- decisions handed down that Dispatch saw an ominous trend. 5o On ten young African On June 10, 1963, six weeks after the Americans had entered the S. H. K.t·ess chain Supreme Court announced its decision in store in South Carolina and taken Johnson v. Virginia, and three weeks after seats at the lunch counter. Police were called, Peterson, it did the same in v. the lunch counter was declared and Virginia. As with Johnson v. Virginia, the the ten were asked to leave. When ion was unsigned, and it was even shorter. In ef their seats, were arrested. fect, the Court threw out the convictions of the tried and convicted of a state tres Thaihimers Thirty-four: "The petition for writ pass statute, they had taken their appeal to the of certiorari is granted, the judgments are va Supreme Court of the United States. There cated and the case is remanded to the -..lllrlrPITW 160 JOURNAL OF SUPREME COU HISTORY of for reconsidera the Civil Act of I in turn, ofGreenville." largely ended the that had led to the the decision in Randolph v. came as less ofa than it might have had it come earlier and accompanied the cluster of cases that included Peterson 51 a sit-in at a whites only cafeteria in a downtown store. Within another year, even more had changed, What Was a Becomes a "Right'" and the 1964 Civil Rights Act had become law. Johnson's actions in 1960 were deliberate Black southerners in sit-ins and and led to both changes in the across the in every state, some ways Thalhimers (and other department stores participants were arrested. Yet in every sit-in as well as did business and changes case that came before the Court ofthe in how the U.S. Constitution was interpreted United by the Court of the United States. convictions. Johnson's actions two years later, in the spring about civil of 1962, were more and more in and therefore curtailed but they. too. led to changes. both in the need for future sit-ins. In Hamm v. the ways the Richmond traffic court did its Rock a sit-in case from South Carolina business and in the way the Constitution was decided in December 1 a narrow ntprnt·pt,,·(j by the Court. As Johnson later put on the Court ruled that convictions had to be the matter, his courtroom case was one thrown out if they could not have been secured of the nuzzle" as black southerners went had the new civil existed at about the business of a whole the time ofthe arrests. Writing for the range of Justice Tom C. Clark observed that the 1964 On the one hand, in no decision did the Civil Rights Act had substituted "a right for a Court squarely face the central issues or de crime."S4 clare a right to protest On the other, in none of the cases that came out of *Much of this article first in Peter the events of 1960 I or even 1963 Wallenstein, Blue Laws and Black Codes: and 1964, did it uphold the of sit- Conflict, Courts, and Change in Twentieth in demonstrators. Of course, nobody involved Century Virginia (Charlottesville: in the demonstrations could have been certain of Virginia Press, 2004), ch. 5. Those what the result would be, whether in terms of are published here with the oermission of that criminal prosecution or in segregation press. practices. By mid-I Johnson's cases before the US. Supreme Court had been decided. Mean- ENDNOTES protest actions in Richmond and else IWilliam H. Chafe, Civilities lind Civil Rights: where had continued. The summer of 1963 Greenboro, North Carolina, and the Black Struggle brought yet another form when many for Freedom (New York: Oxford UniverSity Press, J 980); Virginians, white as well as went to the Miles Wollf, Lunch at the 5 & 10 (1970; Chicago: Ivan nation's capital, one hundred miles north of R. Dee, 1990), Richmond. There they presented a human pe 2Gretcnen CasselJ Eiek. Dissent in Wichita: The Civil Rights Movement in the Midwest, 1954-72 (Urbana: tition on August 28 in the form of the University of 1I1inois Press, 200 I), eh, I, August Meier "March on Washington for Jobs and Freedom." and Elliott Rudwick, "The Origins of Nonviolent Direct The march gave a big push toward passage of Action in Afro-American Protest: A Note on Historical TO SIT OR NOT TO SIT 161 Discontlnuilles," in their Along the Color Line: Explo Dispatch, 25 April 1961: I, 3; "Va. Supreme Court rations in Ihe Black Experience (Urbana: University of Upholds Student Trespass Sentences," Richmond Afro Illinois 1976), eh. 14. American, 29 April 196 3Aldon D. Morris, The Origins oflhe Civil Rights Move Ra,7doiph v. Commonwealth, 202 at 663, 664. ment: Black Communities Organizing for Change 14 Ibid. at 666; "Sit-in Case Conviction Is Upheld," (New York: Free Press, 1984), 188-228; David Halber "34 Students in Sit-Ins Plan Appeal," Richmond Times stam, The Children (New York: Random House, \998). Dispmch, 26 April 1961. 8. 4 Detail concerning the planning stages can be found 15Petition for Writ of Certiorari to the Supreme Court of in James R. Clyburn, "Richmond: The Organization of Appeals of Virginia, 12- Key to the controversy over II Movement," graduate research paper, Department of the meaning of"state action" in support ofsegregation was History, Virginia Tech, Apri I 1992, summarized in Peter Shelley v. Kraemer, 334 US. I (1948), in which the Court Wallenstein and James R. Clyburn, "Virginia Sit-ins, J960: ruled that when citizens relied on courts to enforce restric The Civil Rights Movement in the Urban Upper South," tive covenants that denied residential access to African Social Journal 38 (2003), Back Americans or people ofother racial groups, the agreement ground and further context for the Thalhimers and lost its character agreement and fell under the subsequent boycott can be found in Lewis A. Randolph and Fourteenth Amendment's on state action that denied Gayle T Tate, Rights for a Season: The Politics of Race, equal protection of the law. Class, and Gender in Richmond, Virginia (Knoxville: 16Garner v. Louisiana, 368 US~ 157 (1961). See also University of Tennessee Press, 2003), especially 166-67, Loren Miller, The Petitioners: The Story ofthe Supreme 171, [80-90,203. Court of the United States and the Negro (Cleveland: sTom Howard, "Sit-Downs at Counters Begin Here," World Publishing Company, 1966), 392-98; Derrick A Richmond Times-Dispatch, 21 Feb. 1960: 1,5. Bell Jr., Race, Racism and American Law (2nd. ed.; 6"34 Are Arrested in Sjtdowns Here," Richmond Times- Boston: Little, Brown, J980),279-89; Bernard Schwartz, Dispatch, Feb. [960: I, 4. Super Chief: Earl Warren and His Supreme Court 7 AI Coates, "Store Is Picketed; Negroes Ask Boycott," A Judicial Biography (New York: '\lew York University l\/C.WflIHIU Times-Dispalch, 24 Feb. 1960: 1,3. Press, 1983), Says 'This Is No Race Issue, Richmond Afro 17 Garner v. LouiSiana, 174, 176. Amencan, 12 March 1960: I. 185, 207. ""Va. U. Students to Appeal Fines," Richmond A/ro 184-85. American, 12 March 1960: 19. 20rnterview with Ford T. Johnson Sr., 14 May 1990; inter 10"6 VUU Students Fined $20 Each," Richmond Afro view with Ford T. Johnson Jr., 9 Jan. 1992. American, 19 March 1960: 1,16; "34 Va. U Students Now 21"Studcnl in Contempt About Court Seats," Richmond Look to Appeals Hearing," Richmond Afro American, 26 Afro American, May 1962: 1-2. March 1960: 6. Aside from the nine people already named 221nterview with Johnson Jr. Similar accounts of the in the narrative, the Thalhimers Thirty-four included Leroy episode can be found in "Student in Contempt About M. Bray Jr., Gloria Collins, Robert B. Dallon, Joseph E. Court Seats," 2, and Johnson v. Virginia, 373 US. 61 Ellison Jr., Wendell T. Foster Jr., A. Franklin, Donald (1963). Goode, Albert Van Graves Jr., George Wendell Harris Jr., 23 Interview with Johnson Jr.; Brief for Respondent in Yvonne Hickman, Joana Hinton, Carolyn Horne, Richard Opposition to Petition for Writ of Certiorari to the Jackson Jr., Celia E. Jones Clarence A. Jones Jr., John Supreme of Appeals of Virginia, 2; "To Appeal Jones McCaH, Larry Pridgen, L. Pryor, Samuel Court Segregation Case," Richmond Afro American, 23 Shaw, Virginia Simms, Ronald Smith, Barbara Thornton, June 1962: I. Randolph Allen Tobias, Patricia Washington, and Lois B. 241nterview with Johnson Jr.; "Appeals Case fnvolving White. Court Seats," Richmond Afro American, J 2 May 1962: II Regarding Petersburg, see Wallenstein and Clyburn, 1-2. "Virginia Sit-ins," 24-26, and Oscar R. Williams fll, 251nterview with Johmon Jr. 'The Civil Rights Movement in Richmond and Petersburg, 26[nterview with Roland D. Ealey, Richmond, Va., Virginia, During! 960," M.A. thesis, Virginia State Uni 22 March 1991; interviews with Jollnson Sr. and versity, !990. On Harmon Buskey, see Wallenstein and Johnson Jr. Clyburn, "Virginia Sit-ins," and Randolph and Tate, 27"Student in Contempt About Court Seats," interview Rights for a Season, 33-34, 186-87. For other actions in with Johnson Sr. Virginia in 1960, see Wallenstein and Clyburn, "Virginia 28"Student in Contempt Abollt Court Seats"; Petition for Sit-ins," 27-29. Writ of Certiorari to the Supreme Coun of Appeals of 12Randolph v. Commonwealih, 202 Va. 661, 665 ([961); Virginia, 4. "Sit-in Case Conviction [s Upheld," Richmond Times- 29"To Appeal Court Segregation Case," 162 JOURNAL OF COURT HISTORY )0Ibid. Wright v. Georgia, 285 (1963). JI Petition for Writ Certiorari, 4; Wells P. Gilliam, 196 49 Jack Greenberg, Crusaders in the Courts: How a F. Supp. 792 (E.D.VA 1961). Dedicated Band of Lawyers Fought for the Civil J2Virginia Supreme Court Order Book, vol. 50 (5 June Rights Revolution (New York: Basic Books, 1994),270 1961-2 June 1963),464 (Library of Virginia). 79, 306-11. See also Constance Baker Motley, Equal 33 Petition for Writ of Certiorari, 6, 7, 8. Justice Under Law: An Autobiography ('-Jew York: 34William O. Douglas Papers, Box 1282, Library of Farrar, Straus and Giroux, 1998), J30-32, 148-49,196, Congress, Washington, D.C. 198-200. 35Ibid. 50Dan Day, "Arrests Illegal." Richmond Afro American, 25 373 US. 61 (1963). May 1963: 1,5; "High Court Rejects Laws Against Peace 37Johnson v. ful Sit·lns," Richmond Times-Dispatch, 21 'v1ay 1963: I, LeWIS, "High Court Bars Any Segregation 3; James Latimer, "Two Implications Are Seen in Supreme in a Courtroom," York Times, 30 April 1963: Court Action," Richmond Times-Dispatch, 21 May J963; I, 22; "Courtroom Segregation Held Unconstitutional," Arthur Krock, 'The Court's Segregation Ruling," New Richmond Times-Dispatch, 30 April 1963: 1,3. York Times, reprinted in Richmond Times-Dispatch, 21 39"The Court Shows Its Impatience," Richmond AJi'o May J 963: J8; "Private Rights Endangered" (editorial), American, I I May 1963: 12. Richmond Times-Dispatch, 22 May 1963: 16. 40 [63 U.S. 537 (1896). Randolph v. Virginia, 374 US. 97 (1963); "State Sit-In 41 U.S. 483 (1954). Convictions Are Reversed," Richmond Times-Dispatch, 42"Peace Corps in Great Demand," Richmond Times11 June 1963: I, "Sit-in Convictions Reversed; Cases Dispatch, 25 April 1961: I; "Reports from the Peace Sent Back to Virginia," RichmondAji'o American, 22 June Corps" (including one from Ford T Johnson Jr.), The 1963 9. Panther (Virginia Union campus newspaper; commence 52 Interview with Johnson Je ment edition), 3 June 1963: 3. Blue Laws and Black Codes, 137-38; 4Jlnterview with Johnson Jr. That he would have soon Robert Mann, The Walls of Jericho: Lyndon ,Johnson, heard anyway-his proud parents promptly shipped off Hubert Humphrey, Richard Russell, and the Struggle the news and the newspaper-is clear from "Airogram to for Civil Rights (New York: Harcourt Brace, J 996),370 Africa Notifies Youth of Courtroom Victory," Richmond 73. American, I I 'v1ay J963: l. 54Hamm v. ofRock Hill, 379 US. 306, I (1964). 44/nterview with Johnson Jr. Regarding one of last of the 1960s slI-in Bell 45Both Johnson Sf. and, Jr. told this II. Marvland, 378 US. 226 (1964), Peter Irons, The story. Courage ofTheir CQnvictions: Sixteen Americans Who 461nterview with Johnson Jr.; interview with Johnson Sr. Fought Their Way to the Supreme Court (New York: 47Peterson v. City of Greenville, 373 US. 244 (1963). Free Press, 1988), ch. 6. Johnson v. Virginia was cited in See also Miller, The Petitioners, 398-403; Bell, Race, that case, 249 and 287, as well as in another of the late Racism and American Law, 289-96; Schwartz, Super Sit-in cases, Brown v. Louisiana, 383 US. 13 I, 138, 147 Chief,47986. (1966). History in Journalism and Journalism in History: Anthony Lewis and the Watergate Crisis LAHAV* right into a Lewis column to convey his marvelous craft in the past into a moment. This one is from July 8, 1974. The column is about the oral argument before the Court in the Executive case, which was to enter the con stitutional canon as United Slates v. Nixon.' Lewis writes as both and commentator. He with constitutional history the case of v. Aladison: It seemed at times like a con us a teli~ScoplC view of America: stitutional casebook come to life. the White House, and the IYm!nn!1rV v. Madison was not only cited but, for a moment, debated. hears the historic moment. What exactly had Chief Justice Lewis then locates the historic moment Marshall done in 1803 when he held In space: "The massive Supreme that the Supreme Court was the ul has had its architectural of the Constitu who refused to move Jefferson won into his room when it was finished in or lost ... ? said the Justices would be 'nine black bee tles in the of Karnak.' But today, the Lewis then tells us who came to watch and lis courtroom's monumental friezes and red vel ten: students had lined up overnight vet and ceiling ofred and blue and to be there for what they were sure would be " The architecture of the a remembered moment. There also were H. R. Lewis is essential for Haldeman and five members of the House Ju act ofregicide underlying the Committee that is conducting the im battle for the rule of law. The he also ,,2 This composition are not merely "black beetles in the 164 JOURNAL E COURT HISTORY Lewis offers one more of the mosaic before filling us in on the issues at stake: the of those on the grand the act ofapplying constitutional law to the facts at hand. The participants, he says, were: informal, sometimes even folksy. The prosecutor, Leon spoke in a soft Texas twang as he the Justices to exert their power as Chief Justice Marshall had. James D. St. for the had a casual air that removed any from his hard counsel that judicial power New York Times reporter Anthony Lewis (above) cov at the White House. ered United States v. Nixon, the historic executive privilege case that came before the Supreme Court in 1974. At this historic moment, when the eyes of the the world-are on the Temple," but men who hold the President's fate in their hands. It is that they de are also ordinary liver their monumental decision from a marble Americans and that they behave accordingly. palace. 3 are folksv and down-to-earth. In other After Nixon extended the principle of executive privilege by refusing to allow his staff to testify before Con gressional committees-notably the Watergate Committee--many feared an erosion of Congress's powers at the expense of an increase in presidential powers. HISTORY IN JOURNALISM AND JOURNALISM IN HISTORY 165 James D. St. Clair (second from left), President Nixon's lawyer, was photographed arriving for a closed session of the House Judiciary Committee on June 4, 1973. St. Clair argued Nixon's executive privilege case before the Supreme Court four days later. words, Lewis removes legalese to whether a President must obey a sub reveal a human and accessible core to the poena, the courts or the President reader. The motifs of the rule of law and himself? of Lewis now weaves in the master narrative emphasizes the point of American constitutional law. He tells us another eyewitness: that Prosecutor Leon Jaworski was "1 thought it would be different," urging the Court "to follow Marshall's ad one person who had never been at a vice in the Marbwy case," and the Supreme Court argument remarked now-canonical is emphatically the afterward. "1 thought they would, province and duty ofthe judicial to talk Latin or something. It was say what the law is." As the phrase so .. did find its way into the Court's opinion.4 Lewis then quickly moves from norma set the stage, Lewis presents the legal tive analysis to process. The columnist as eye issue before the Court in all its grave extraor witness his historical to dinariness. He tells us: put the process before the Court in the con [T]he issues were not ordinary or ca text of past and present, tradition and moder- sual. They were issues of final power Three he reminded us in the American summarized that the Court's residence is palatial by con in one question: Who is to decide trast to its humble he now tells us that 166 JOURNAL OF SUPREME COURT HISTORY before the Court is not what it used "perhaps unintended One can detect to be in the golden age of the patriarchs. Effi a subtle double entendre. Lewis is careful not and bureaucratization have the to either the participants or President institution of oral gUlllClil. Lewis writes: Nixon, but you do not have to be a critic to read between the lines his contention of Marshall, that America is facing the shocking reality of were spacIous events. Daniel Webster its President and Commander-in-Chief impli went on for days ... [Today] the time cated in criminal behavior.7 was short--just three hours and two Lewis's essays are limited to 750 minutes for the whole argument and it is now time to end this column. For his and the Justices cut into that with vol Lewis chooses a quote from oral of argument. The quote hints at what he believes The contemporary Court, indee~ is bureau to be the correct the one he hooes will cratic and at the same time seems to follow: the value but Lewis is careful to boost his readers' confidence that this Court Then, toward the end, Mr. Jaworski's is as capable as the historic Court of the Philip A. asked John Marshall. The Lewis tells us, the Court to uphold John 1. "had all read the briefs thoroughly Sirica's decision against the Presi and were primed."s In other words, this is a dent "fully, decisively ... " historic moment, and a monumental decision Mr. Lacovara to search for a is about to be made. But we need not worry. wor~ found it and added: "Defini The "priestly tribe,,6 is ready and able to rise tively." The audience recognized it to the occasion. The rule oflaw is in good pro as the word the White House once fessional hands. used-but no describe the The issues are grave and The air is kind of decision President Nixon and Lewis orovides some relief with a would humorous anecdote from a IIlVlllClil oral The the drama the aura ofa moral ity tale and, without saying so explicitly, re Once Justice UVU/Sld.::>, minds us that the vision of America is Justice 35 years, any other that of a polity where the is one of person, said he could not remember laws, not of men.8 any case in which the Court had set To my min~ this column is a splendid ex aside a jury's decision to name ample of the various uses of history in Lewis's someone a rllt"r-"'~ Mr. St. work. He is an to an historical mo Clair had asked it to do. ment who self-consciously communicates his [And] Mr. S1. Clair snapped back: and his judgment. He skillfully "And up to today you have never had a conveys the moment's solemnity. At the same President of the United States named time, he the popular stake in the as a co-conspl conflict, as well as its humorous angle. He fo Justice cuses the reader on the most very true." The a issue-who will decide whether the law should unintended irony from the be he weaves the current case into comment, laughed the great saga of the American for makes the ominous moment less the rule of law. He ends with a call to the scary-it introduces some into the Justices to avoid vagueness and waffling. He matter. But what should we make of the the soeciai orosecutor's plea to HISTORY IN JOURNALISM AND JOURNALISM IN HISTORY 167 the but he agrees that this • The appropriate sequence of is the desired course, The moment requires whether the special prosecutor should go the Supreme Court to be explicit, to tell the first and whether Congress should put its President that the law must be own on ice until he is done. 12 • The crisis over executive and its One way Lewis contributes to his culmination in the Supreme Court opinion tory is by eyewitness accounts, As I in the matter of the President's tapes. 13 have Lewis is an sensitive • Executive in the context ofthe con to historic moments and able to draw on the gressional hearings, 14 master narrative of American history to • The constitutionality and of the the events he is color and option of 15 even • The constitutionality 16 He also contributes to history as a chron • The question ofthe war powers and the man icler of events, through Lewis's of a secret war in Cambodia,17 columns one a sense of how intensely • The CIA and covert abroad,18 the law interacts with The Watergate • The CIA and domestic intelligence, 19 was rich in constitutional • The "Plumbers' Unit" in the White House; and Lewis is an able the "Plumbers' Unit" and the Daniel case,20 • ethics during a constitutional crisis,21 cuisine should start with Lewis, One • The scandals Vice President may think that task, and Spiro Agnew. • The meaning of the Amendment.23 New York Times would yield the same results, • The of Richard Nixon.24 But Lewis has an as he shows the • The status of the Presidential 25 great need for discretion and in the work ofa chronicler. A reading of his columns It is conventional wisdom that most jour yields not only a list of the various legal is nalistic work is doomed to oblivion, Even his sues at the but also torians who III time with old preliminary analysis oHhe problems raised by newspapers would agree that some of the stuff these issues as were understood at the is boring and best forgotten. Certainly not all time, As Lewis operates like the of Lewis's columns are memorable, But his Oxford English Dictionary: he not only sug work done the era is differ the ofthe issues and the context ent. For here we have a highly intelligent and in which but also leads the reader well-disciplined mind participating in the na backward and forward through their ramifica tional discourse on crucial events that are at tions, If one recalls that Lewis has been au once and political. He offers commen tonomous in his choice of then one tary, refuses to from technical intricacies, must concede that he has put his "editorial priv and reminds the reader of the grand vision of into very good use, The rich canvas of American constitutionalism, It is this combi issues he before us is astounding, Here nation that turns his work into read is a very partial list: ing, even thirty years after the events, with one distant crisis among the • and the investiga many that have afflicted the country in the last Scandals,9 few decades, • The office of the Let me return to the Executive and desirability,IO case for a moment. The case was decided on • The Saturday Night Massacre, II July 24, 1974, As we know, it for the 168 JOURNAL OF SUPREME COURT HISTORY emergence ofa gun, which, days the issues between President and about the first of a are often settled power. dent of the United States. On July J A President yields only when some Lewis offered an of United States v. committee is determined to Nixon. on the text of the opinion, threaten an appropriation or an ap rather than on the he asked whether the pointment. The arguments over ShOll Id be read very will doubtless go on in that way, mixing and un only where a need for information arises in certain history and power. the course of a criminal trial? How would the affect a presidential refusal to share to make sense of the Watergate information with about such matters Lewis kept on as an impeachment inquiry or the secret bomb as well as American. Take his column on the ing ofCambodia? Jn the context of event commonly known as the Night this was an astute question, since "-.-VJlgu;;::,:> Massacre, In that column, Lewis recounts the at that very moment was flexing its constitu conversation between White House tional muscle vis-a-vis the President in mat Chief of Staff' General Alexander and ters of policy as well as in relation to the Justice William Ruckelhaus, the impeaclunent inquiry. Lewis offered two When Ruckelhaus refused to fire Archibald arguments in favor of expanding the holding "Your Commander-in of United States v, Nixon to include you an order, Lewis writes: information "There it was, naked: the belief that the pointed out, ChiefJustice Burger's unanimous President and that loyalty runs opinion "did not use the broad 'execu to his person rather than to law and institu tive ' the doctrine that has been ad tions. Lewis then sheds historieal light on the vanced to keep facts and policies secret, but concept: "It is precisely the concept of power instead to 'the privilege of con which Americans rebelled in 1776, and fidential ity of Presidential communications, '" the Constitution to bar for Second, ever in this country. It is in fact a form of power that no monarch has exercised as the Court said since the Third, Later he brings an cial need for ordinary evidence had to historical to Nixon's determination be against claimed need for to rid of Cox: "So obsessive had that aim Presidential of con become in Mr, Nixon's mind that it was like versation, so the cry of the Second about Thomas a need for security information against Becket: 'Who will me from this turbulent any Presidential claim of secrecy, It Lewis moves from Henry the Second is a process 27 back to America: "Eventu ally someone was found to wield the pragmatically highlight His name was Robert Bork, but it will count no more in history than the forgotten names of ter, Becket's murderers, Well, not quite, Bork's name is far from then, Presidential and it is safe to assume that he did may always have to yield to the secure a place for himself, at least in the history stronger interest ofanother branch of of judicial nominations. As Strum Government. In of course, Lewis confronted Bork again in the HISTORY IN JOURNALISM AND JOURNALISM IN HISTORY 169 when Bork fought to be appointed a executed in the morning, you say Supreme Court Justice30 With historical hind- there is no power by which the court one may observe that does not may intervene?" Mr. Baldridge had repeat itself Or maybe the analogy be some difficulty with that question, tween Bork and Becket's produced and the gave him in the heat of and to think it over. The next day inapt. This may be a Pine changed to what he termed an difference between easier question: "If the President or the present and dered Mr. Baldridge's home ture. Prr.nh,f>C'v would the courts be powerless be business. cause the President had "declared an Lewis concludes his column on the "I do not believe that Saturday Massacre with another histori any President would exercise such cal anecdote, this time alluding to the notorious unusual power," Mr. Baldridge Munich "unless in his opinion there was a grave and extreme national emer [B]efore someone in Richard gency Nixon's shrinking guard will tell him that he must listen as Lewis tells us that Pine this position, the country sends him the same cry and the relevance of the that went across the floor ofthe House "[T]he danger of a President governing by de of Commons to Neville Chamberlain cree in the name of national with in 1940: "In the name of go." us now in much more alarming form."33 Historical anecdotes are a way The 19505 were evidently Lewis's for for Lewis to make current events intelligi mative period, and he uses his rich "pr·""r", ble and accessible. He has of them, archive in order to make sense of what he sees in the 1970s. He also situates "",,,t,,,rror.,, from both the distant and the more re cent decades when he himself worked in or near-contemporaries in the nation's history, Washington. Often, his anecdotes are subtle connecting the dots between past and present. a flavor to his In his column Nixon's maneuvers Take his column on Nixon's 1970 to withhold information from the House Judi directive to launch a domestic pro ciary Committee, Lewis reminds us of one of gram, a directive to public attention the most dramatic moments in the now famous two years later, in 1973. The proposal, says Army-McCarthy "It was on June Lewis, "shows how vulnerable we are to the 9, 1954 [almost years when doctrine that those in power may violate the the lawyer, N. Welch, asked law in the name of what they consider 'na [Senator McCarthy], 'Have you no sense of tional security.'" The column opens with an sir, at long last? Have you left no anecdote taken from oral argument before the sense of decency?'" Lewis then tells us that district court in the Steel Seizure Case. Lewis that emotional Welch referred to "Jim tells the story: his young assistant St. who sits on my " Lewis was that James Sf. [T]he trial David A put Clair, an old-fashioned lawyer who insisted on a question to the Government coun separating law from politics in the impending sel, Holmes Baldridge: "If the Pres the tapes, should to take you He should ask his into the same question that his old 170 JOURNAL OF SUPREME COURT HISTORY boss did of Senator McCarthy: "Have you left dence from both the Special Prosecutor and the no sense ofdecency?" One may also argue that House."37 it is Lewis himself who asks the auestion--0 Lewis ends with an historical anecdote St. Clair.34 ethics and one of America's St. Clair was the subject of a full Lewis most revered Abraham Lincoln was column, entitled Arrogance," in once hired by "a man who claimed he hadn't which Lewis discussed the issue oflegal ethics been paid some money owed him. At the trial in the contextofthe the other side produced a showing that What were St. Clair's responsibilities as the the debt had been paid. Lincoln was back in his Lewis began by quoting hotel when word came that the judge wanted St. Clair's statement that he rpopntpfi "the him in court. He said: 'Tell the that [ Office of the Presidency." This, he said, was can't come: 'r have to wash my hands. ",)8 a noble vision. "One saw a lawyer thumbing Ten later, Lewis continued his explo through the Federalist or ration of the issue of lawyers in The with the shades ofMadison and Hamilton in or column "And You Are a with der to define the constitutional interests ofthe a description ofJohn Dean'5 testimony in crim American "But in said inal court Richard Nixon Mr. Dean was led through his admit a specIal interest--confusing Nixon's inter ted crimes. Had he coached Jeb Stuart ests with those of the American to give false tes According to St. Clair's tactics to res timony? He had. cue Nixon were "those of an and defense in a criminal "You suborned perjurious testimony courtroom. from Mr. Magruder?" Lewis provides a list of the and I did." proceeds to condemn St. Clair: "For Mr. St "And you are a Clair to oretend that he is playing that high a role is worse than It is a "That is correct." arrogance. For it commits James Lewis then goes beyond the case to St. Clair's reputation to the fallacious propo its meaning for American political culture: sition that the interest of the and framework is 111 the interest of Richard Nixon are the same." Lewis then two propositions, each . and it was forcefully to mind counsel's tone of which could be analyzed and of indignation at the idea that a debated. First, he says, attorneys rprlrp·,prlt. the Office of the carry a special could have done what John Dean did. For of course he was not above and beyond the respon the only lavvyer in the Nixon Admin of the lawyer: "A istration who hf'icr"'Jf'rl concern for history and institutions ought if The record of the around anything to be more acute when he is Richard Nixon is one of the most the President ofthe United States." 0C\;Ullll, even an ordinary lawyer should observe "eth of his There has been nothing like it in the ical limits on what he is supposed to do for history of our Government or our the " and think James St. Clair bar. has crossed the line." St. Clair claims that he is cooperating with the investigation when "in Lewis proceeds to catalogue the activities of fact the White House has withheld critical evi Nixon: HISTORY IN JOURNALISM AND JOURNALISM IN HISTORY 171 The Vice President. . . as an ofthe profession in American polit admitted felon ... Mr. Nixon's per ical culture, Entitled "A Learned Profession," sonal lawyer ... pleaded to a the column by exposing the attempts ... G. Gordon Liddy, counsel of President Nixon and his domestic advisor, of Mr. Nixon's re-election conunit John Ehrlichman, to influence the outcome in tee ... is in prison for the the Daniel case by to trial break-in. L Patrick , Mr. William Matthew Jr. that he could Nixon's choice for the sensitive posi have a position as director of the EB.I. "It is tion ofEB.! director, In always easy to attack " Lewis writes, after admitting that he had destroyed "and much of the public probably thinks Watergate evidence. of them as a obscurantist, insensitive lot, without principle, on sale to the Lewis then lists ethical violations that do not bidder. Easy, but I think mistaken," Lewis then amount to criminal conduct: emphasizes the of the legal pro Mr. Colson "enemies' lists" fession in the United States: at the White House and SU12:ge~;ted But American lawyers, more than the idea of a tax audit. others in the world, also act as public Mr. Ehrlichman approached a as instruments of social about the job of EB.I. director while change, as defenders of the weak and he was trying the case of Daniel the abused. must, or our society Mr. Mitchell sent an aide up will fail. The follows to warn some Supreme CourtJustices from the extraordinary role to that there would be grave law and the courts in the American consequences if they decided constitutional system. his position in a case. This responsibility, he says, exists in both the And then Lewis comes to the punchline: ory and practice. Against the backdrop of cor ruption in the Watergate other le What view of the law does such be gal professionals have showed courage and havior bespeak? .. That is the view integrity: that law is an expression of power alone, without moral tradition or val Just consider some of the ues, to be manipulated at wiIl.It is the done by lower Federal courts view of the around the country. have enter tained and decided whole new cat- Lewis ends a question to Richard of environmental lawsuits. Nixon: "And you are a iawyer?,,39 have found the President's im One important of Lewis's work that pounding of appropriated funds un emerges from a volume of that lawful in many cases. One has held work is its constructive and healing quality. the bombing of Cambodia unlawful. The of Watergate was particularly for Americans, and Lewis was one of Those of them Republican," the more vocal and vociferous critics of the Lewis notes-have done so "because it is the Nixon administration. One senses, however, tradition ofAmerican law to the rights that he was carefu 1 not to be a of of the individual in response to abuses of offi doom, For his two columns on pro cial power." Harking back to I Lewis ends fessional responsibility and ethics were fol with a quote from Justice Harlan F. Stone: "To lowed by one in which he tried to restore the whom, if not to the may we look for 172 JOURNAL OF SUPREME COURT HISTORY guidance in solving the problems of a sorely The point about Frankfurter and stricken social Stimson is that were conser This same philosophy-that law is more vatives in a constitutional sense. than the mere of and put for the institu Lewis to criticize Nixon's secret tions of American government ahead bombing ofCambodia. The of causes favored, ahead of the " was their own power. SureJy conserva tef his columns about the corruption infect tives today, the ones distressed by ing the lawyers who surrounded the President. the scandal, should care Lewis quoting the justification of all the more about a President's mak fered the State William H. Sullivan, when asked about the constitutional authority to bomb Cambodia: he admonishes is the mes "For now I'd just say the is sage from the moment of found the re-election of President Nixon. Lewis ing: "But those who founded the United States terms this a justification appropriate to the wanted its very character to lie in the principle Bolshevik worldview41 He calls the bomb that law limits the authority ing of Cambodia "the most extreme exam- up to the ,,42 so far of all American Presidents claim Lewis did not invoke Frankfurter here of absolute power to make war." Here, he for tactical reasons alone. As Scot Powe there is not even a "colorable ba observes in this 43 Lewis had been SIS In authorization or influenced by Frankfurter's ap prior treaty commitment." He then focuses to the American Constitutional system. on Elliott then of De When Frankfurter's Quintessential rival, Jus- fense. Richardson rationalized the bombing of Cambodia, it was done "at the re- to halt the bombing ofthe Cambodian Lewis disapproved despite his Lewis the eXplalltlllUII strong stand that the bombing was unconstitu stuff." "[N]o foreign governments can tional and wrong. "However much one cred by itself add to an American President's war- its him for courage and of power." But Lewis had still harsher said Lewis, "his opinion was utterly unpersua words for who a few months ear sive. Lewis stuck to his philosophy that the ap lier had high marks for resigning rather institution to confront the President than firing Cox during the Massacre. aware of Lewis reminds his readers that Richardson was Justice Frankfurter's clerk: "Does he ever con sider the standards that would be to peachment emerging out of the House Judi this kind of problem Felix or Lewis went further to ac by Frankfurter's exemplar ofintegrity in public cept the decision not to add the of Stimson?" Richardson Cambodia-which, in his opinion, was utterly the torch legal-to the reasons for and Lewis uses the conservative card as he sets up the standard of behavior under "Even those most critical of the the rule of law. At the end of his column, he secret Cambodian bombing ... may Frankfurter, conservatism, and the have found reason, in the to Fathers: that those wrongs were not HISTORY IN JOURNALISM AND JOURNALISM IN HISTORY 173 proper for eye, he said, a historical thread could be dis On Cambodia, the decisive argu cerned: "That is the of Presidents." ment was made by Lewis Haldeman's who urged resentative John Seiberling of Ohio. the Court to take into consideration the fact He detested the war and the bomb- that Bob Haldeman he did not for himself but for the President of the United power" when "other Pres States." That, Lewis was the of idents have taken the same sort of the action and ... to Presidents started to be come an overriding virtue years be About six months after Nixon's resigna fore the Nixon White House. As tion from his top more and more power was centered Ehrlichman, and John Mitchell~stood before in a mythic the prac John 1. Sirica their sentence. In tice of doing things for the President his column on this Lewis reflected on them without con the historical meaning of the Watergate saga. sidering whether they were right or Lawlessness did not begin with the Nixon ad wrong. The worst did not happen ministration. It had roots in admin while there remained strong cen istrations, "at least as far back as Franklin ters of independent judgment, Roosevelt's administration." To the historical and moral, in the White House and This July 1973 cartoon appeared the day after former Attorney General John N. Mitchell testified before the Senate Watergate Committee that Nixon knew nothing about the Watergate crimes until well after his re-election. Although Mitchell admitted taking part in the cover-up, he denied authorizing the break-ins at the Democratic National Headquarters. 174 JOURNAL OF SUPREME COURT HISTORY outside. But the habit of this issue ),49 and even in his most recent arti President-worship had set and cles, such as the one on President W. it produced disaster when a willful Bush in a fairly recent issue of the New York President and his manipulative en- Review ofBooks. 50 found weakness in the Justice Philosopher Sidney is re and other Departments. ported to have said during a discussion about John Rawls' theory that "the urgent Lewis was confident that Americans were "re problem was not but the decent an old of wisdom. Those who Anthony Lewis's columns, manage the delicate institutions and articles-in law reviews and elsewhere have a responsibility to respect the deplore the absence of basic in most law." He ended his column with a 1928 ofthe activities he chose to focus on during his from Justice Brandeis: long career. Lewis's work celebrates the occa "]n a government of laws, existence sional triumphs of in the affairs of of the government will be state, but most of his energy is spent decrying if it fails to observe the law scrupu its absence in affairs. Within this con lously ... If the government becomes text, his reliance on history appears to be a part a it breeds of his finn-almost that the for law; it invites every man to be phenomenon of the American state is funda mentally about the for ,-""'pr,,',, come a law unto himself; it invites ,,46 his adoration of Thomas Jefferson as the em bodiment of all that is good in America fonTIs The engine that drove Lewis's outrage as a part of this basic approach 52 And if in unfolded is rifying the Founding Fathers like many of in this column: his fear that the government of the best and the brightest, falls into mystifica laws will degenerate into a government ofmen; tion and myth-making, we should excuse the that self-interest will trump the public intcrest; excess as a reflection of his firm belief that and that blind loyalty to the leader will replace that it has sober reflection and deliberation. His columns cally in the course ofAmerican his make it clear that he was hard-headed tory. he has made selective use of his to understand that in the real world, the rule of on lessons that law is by the constraints of in public affairs. It may political contingency.47 They also make clear be that he has intuited that history a that he believed the principle be more accessible compass than abstract legal tween the two should be a certain notion ---'-'''YJ coupled with civility. Lewis's work One may find Lewis's own testimony is more than a mere reflection of what would about the fuel that makes him run in his col later be called Eastern "establishment" values. umn his auuauug class of It is true (as this issue, , that written as the events of watergate were Lewis's intellectual roots can be found in the unfolding. The occasion was the reunion Harvard Law School and its ofhis Harvard College class. The column is in Cox. But a close reading of his teresting because it does not appear to be self work reveals a deeper theme-a be conscious or Lewis observes that lief that politics and the rule of law should be his class "never was a radical class as a whole bound by a thread These are themes and it is not now." However anyone .... "'r"p·m'>c that one finds in the early Lewis and which are Lewis's it cannot be characterized as rad repeated in his later work shown by ical. He continues his description of the class: HISTORY IN JOURNALISM AND JOURNALISM IN HISTORY 175 to list the most serious *This article is based on a deIiv we [sic] put 'breakdown of moral ered in November 2002 at the American ity' first and 'lack of social justice' History in a dedicated to the Lewis then that courageous and pas work ofAnthony Lewis, I wish to thank Liliana sionate could America out of lbara for her skillful assistance on this essay. its predicament, but that one appropriate candi date for leadership, Robert Kennedy, had been assassinated, happened to have been ENDNOTES a member of the class of 1948, Lewis talks about worldview, yet one gets the 1New York Times, .luly 1974, "Echoes of History Heard In a Pillared Courtroom" (hereafter "Echoes of History"); feeling that projection is at work. Lewis seems United Siaies Nixon, 418 U.S, 683 (1974). to identify with as he lists the late 2"Echoes of History." senator's values: 3id. 4fd struck accurately, as 5fd, someone who cared about individual 6This phrase borrowed from Barbara Perry, The Prieslly Tribe: The Supreme Court Image in the human He cared for the em American Mind, 1999. bittered as he did for the and "'Echoes of History." As he Sid. of human sorrow, he did not bui ld 9New York Times, Nov, 26, 1973, "Living With Illusion." a wall against it; he learned. He made IONew York Times, Nov, 5,1973, "The Special Prosecutor"; New York Times. Nov 12, 1973, "Light in the Dark!' mistakes, Lots of them, but he could II New York Times, Oct J8. 1973, "The Pressure On Cox"; bear the New York Times, Oct 22, 1973, 'The End Begins" (here after End Begins') These words capture Lewis himself. Maybe he 12New York Times, Sun., Oct. 6. 1974, "The Trip to the would be too modest to ever write this about Hill Has Symbolic Value"; York Times, June 1973, but it seems to me that this is "Rush to Judgment." 13 New York Times, Sun.,July 28,1974, "Whallhe Supreme his work has remained so readable and so rel Courl Said. And What It Meant" (hereafter "What the evant. He believes in--one may even Supreme Court Said"), say about-the idea of the rule York Times, Jan. 2 1974, "Grand Inquest of The of law. And he uses a whole panoply ofhis tor Nation," ical methods to illustrate this point. For 15New York Times, Jan. 14, 1974, "An Impeachment Dilemma." the idea of the rule of law is not that any 16New York Times, Sun., Apr. "Resigning Is however and cruel, must prevail, but Nol Easy for Nixon Either" (hereafter "Resigning Is Not rather that law should be rooted in the no New l'ork Times, Sun., May 1974, "Resig tion ofbasic decency-that which is generally nation Has Its Problems. Too"; New York Times, Sun., known as the substantive idea of the rule of Aug. 11, 1974. "The Resignation Proved Impeachment law. Works." 17 New York Times, Apr. 19, 1973, "Law and the President" No better proof may be offered than the 18See. e.g" York Times, 10, 1974, "Don'! Look way he ends the column about his graduat Now," ing class: instead of the customary historical 19 New York Times. July [0. [975, "The Teller of Truth," am~CCtOI'~, we Lewis offers what he Seymour M. Hersh and the Rockefeller Report on says were the most moving words quoted in Operation CHAOS; New York Times, July 14, 1975, "Lying in State I"; New York Times, July 17, 1975, "Lying in Siale the class reunion: "And most the II" familiar words of John Donne: 'Any man's 20New York Times, Jan, 28, [974, "Crime and Punish· death diminishes me, because I am involved ment" in mankind. ",54 See, e.g" endnotes 38. 176 JOURNAL OF SUPREME COURT HISTORY York Times, Sept. 27, 1973, "The Earthquake"; New 41New York Times, April 19, 1973, "Law and the Presi York Times, OcL 11,1973, "The Dam Cracks." dent." Again, does this through an anecdote. A Russian Not Easy"; Sun. New York Times, Sept. 30, was denied an exit visa and tried to understand what the Amendment and rts Unanswered Ques legal grounds for the demal were. "He asked the men ofthe " interior ministry whether there was anything in the York Times, Sun., Sept. 15, 1974, "Mercy Was Sal Constitution restricting the right to emigrate. No. Could isfied But the Constitution Requires Justice"; New lork they show him any that did 50'1 No. What thenry 'We Times, Sept 1975, "The Pardoner's Tale." our internal regulations, '" 25 New }ork Times, Sun., Sept 29, 1974, "The President's 42]d Papers, But Everybody's Business." 43See L Powe, "Writing the First Draft of History: 26"What the Supreme Court Said." See also his analYSIS Anthony Lewis as Supreme Court Correspondent," this the day following the release of the opinion, New York issue of the Journal ojSupreme COW'l HislOry (hereafter Times, July 25, 1974, "Uniled Stales Ie Nixon . ., "Writing the First Draft"). 27 Yet in "What the Supreme Court Said," Lewis cautioned: 44 New lork Tillles, Aug. 6, 1973, "Because It Is There:' On "It just as important to understand what the Supreme July 25, 1973, JudgeOrrin Judd ofthe federal district court Court did not do. It lent no comfort to the notion that in Brooklyn held the bombing unconstitutionaL A Court the courts can be a vehicle for supplying evidence to the of Appeals stayed the decision. Justice Douglas removed impeachment process--or that the House Judiciary Com the stay. Subsequently, the Supreme Court overruled mittee should make this deCision the occasion for another Douglas. long delay to seek further evidence." 45New York Times, Aug. 1,1974, "Watchman inlhe Night." 2s"What the Supreme Court Said." }hrk Times, Feb. 23, 1975, "The Sentences: A Mes- 29'The End Begins." On Tille Law and Order." 30Edlan Bronner, Battle for Justice: How the Bork Nom 47See e.g., accompanying endnote 28. ination Shook America (W,W. Norton, New York, 1989). 4s"Writing the First Draft," this issue, See Philippa Strum's discussion ofLewis's columns about 49"The Journalist as Historian," this issue. Bork's nomination, "The Journalist as Historian: Anthony for the rule oflaw has been an essential Civil Liberties, the Supreme Court," in this from the beginnmg in the survival success ofthis vast, issue the Journal ofSupreme Court History (hereafter disputatJous country-and a reason for other people's ad "The Journalist Historian"). miration of American society. But George W Bush, what J I New iork June J I, 1973, "In the Name of ever his qualities, seems to have no feeling for the law." Security." "Bush and Iraq," New York RevlewofBooh, Nov. 7, 2002, Youngslown Sheel & Co. v. Sawyer, 103 F Supp. p.5. 569 (I aff'd 72 S. Ct. 863 (1952). 51 Avishai Margalit, The Decent Society (Harvard Un i 33U Press, Cambridge, MA, 1996), p. ix. Margalit 34 New Yark Times, 21, 1974, "Law and Politics." writes that his entire book was inspired by Morgenbesser's York Times, March 18, 1974, "Dangerous Arro comment. gance" (hereafter "Dangerous Arrogance"). e,g., New lork Times, "Happy Birthday," July 5, 36,,1. Try to narrow the law; 2. Limit the evidence; 3. 1973: Jefferson "was such an extraordinary embodiment Soft-soap the jury; 4. Attack the prosecutors." "Dangerous of the qualities that once characterized the leaders of Arrogance." United and made possible our independence: dis 371d. dain for wealth and show, respect for learning, faith in 3&Jd the ultimate power of reason if left unfettered by myth or J9New York March 28, 1974, "And You Arc a privrlege." Lawyer?" 53 New York Times, June 14, 1973, "The Class of 1948." 40New }hrk Times," Aug. 1973, "A Learned Profession" 54/d. Writing the First Draft of History: Anthony Lewis as Supreme Court Correspondent POWE, JR.* The legendary Washington Bureau Chief and columnist of The New York Times, James Reston, with a push from Felix decided that the paper of record would have its own correspondent in the Supreme Court. l With his eye for excellent young talent,2 Reston chose Anthony already a Pulitzer-Prize winner before his thirtieth birthday,3 and sent him to Harvard for the 1956--57 academic year as a Nieman Fellow to law. The choice of man and were pre With largely oral scient. In less than a decade Lewis estab lished the standard for the job. His 1963 8 Lewis's articles are fac Pulitzer Prize for coverage ofthe Court gener tual, sometimes evaluative, reporting. In plac- ally and the initial Baker Lewis in context one must begin with an v. 4 in particular, was the first of that accurate summations of Court nr"nrl"n' has the Court's work will not offer a larger perspec tive on legal events.9 Lewis was the Besides Lewis's obvious another the first reporter to see Court deci reason for his success was his access to the sions, not just as a but instead as part constitutional law of the Harvard Law of a constitutional process where School at a time when it identified as mattered. Frankfurter did the Times, with New Deal liberalism as was genuinely telling Reston, "} understood politically and as practiced by the can't believe what the young man has achieved. Court6 To an extent Lewis was an There aren't ofthe Court who have accomplished younger peer, and too, had such a grasp on these cases."10 published in the Harvard Law Review---an ar Lewis was influential because he was able, ticle on the because he was and because he wrote for the Times at a time when it roprpF"""'" 178 JOURNAL OF SUPREME COURT HISTORY When federal employee Abraham Chasanow (right) was dismissed from his job at the Navy in 1955 after being unfairly accused of being a security risk, Anthony Lewis-then a reporter for the Washington Daily News-wrote a series of articles highlighting the injustice. Lewis won a Pulitzer Prize for national reporting and Chasanow was reinstated after the Navy admitted its error. Above, Assistant Secretary for Air James Smith congratulates Chasanow as his wife looks on . itself a part of the national government" and Reapportionment was a must-read for those in Washington.' 2 To see Lewis at his best (and most influen The "Week in Review" article on Baker v. Carr tial), one must look to the occasions when he is as fine a piece of news analysis of a deci was allowed to use all his talents in describ sion and its impact as one can find. Its Pulitzer ing what the Court (and its Justices) did and Prize was richly deserved. It accurately calls what it meant. These came when he wrote (through unnamed others) the decision "his for the Sunday edition, either 'The Week in toric" and "momentous." It gets the gist of Review" or the Magazine, where he could an Justice Brennan's equal protection holding per alyze as well as report. '3 These were both first fectly: an apportionment scheme "could be so drafts of history and explanations by one part arbitrary as to violate the Constitution" but the of the Establishment of another part ofthe Es "Justices did not say how bad di stricts would tablishment to other parts ofthe Establishment. have to be before they would be deemed un Lewis's belief, undoubtedly reinforced by his constitutional." Looking backward, Lewis ex Harvard sources, that the Court was a great in plains why there are badly apportioned dis stitution would eventually become a standard tricts. Americans have moved, and much of belief among the Times' elite readership. the movement has been away from rural areas. WRITING THE FIRST DRAFT OF HISTORY 179 Lewis, who had excep tional access to the constitutional law faculty at Harvard Law School, greatly admired Justice Felix Frankfurter. Pic tured is a photo Justice Frankfurter gave Lewis on November 14, 1961 with the inscription "For Tony Lewis, for whom judicial law is not the manipulation of symbols, tho his ardor naturally exceeds law's reach, but the rational process for meeting society's needs through courts, with all the good wishes of his friend Felix Frankfurter." Yet some state constitutions mandate geo the Democrats would be the big winners, but graphical districting, so legislatures could not Lewis did not beli eve this would prove accurate accommodate the population movement. But since the suburbs were Republican and they too "a more widespread reason is a simple refusal had grown. Finally, Lewis predicted the Court to redistrict.,, 14 Legislators were reluctant to would proceed slowly in the area. 17 vote themselves out of a job. 15 They needed a The prediction about the House ofRepre push to do the right thing and only the Court sentatives was one anyone could have made. had the leverage. 16 Not so, with the Republicans doing as well Looking forward, Lewis accurately noted as the Democrats. At a time when every that Baker v. Carr would affect the House one was concentrating on urban problems and of Representatives because malapportionment the way mal apportioned legislatures hurt the in state legislatures " is dupl icated to a de cities, there was a widespread assumption gree" in the House. Many experts thought that reapportionment would be a boon to the 180 JOURNAL OF SUPREME COURT HISTORY Lewis won a second Pulitzer Prize in 1963 for national reporting for his coverage of the Supreme Court-the only time a Supreme Court reporter has claimed that honor. The landmark reapportionment case Baker v. Carr was handed down that year, leading to widespread repercus sions in how states were allowed to apportion their legislatures. Pictured is a 1967 cartoon of a frus trated Florida politician being told by a judge that his state's legislative apportionment law was unconstitutional. Democrats. Lewis was by far the wiser. Sub career and that when Justice Arthur Goldberg urbs were as losers as cities to malap became the fifth vote "slowly and carefully" portionment, and Republicans no less than were outmoded ideas. after /;IIP~hpn1J Democrats would be beneficiaries of subse Lewis noted: "It is a new Court. apportionment. 18 When the Court decided Lewis Lewis was sure that "the Supreme Court emphasized Justice John M. Harlan's dissent to will move slowly and carefully" in the area. underscore how far-reaching the majority deci Thus he debunked the idea that the outcome sion was. More than he have "would ensure more or less equal popula he concluded that the case tion" districts. "That is surely a of view, on the part of the Jus the opinions.,,19 It may have been a misread- <;:.mFP'ne Court's role in the Amer of Justice Tom Clark and Justice Potter structure." Lewis also dis Stewart's opinions, but it was not a bad pre- cussed (and largely the now-retired Equal districts would be Frankfurter's fear, echoed in Harlan's for House dissent, that bitterly resent" Sims2J for the Court's intrusion.2J "These fears were not both houses of state What Lewis borne out, at least in the immediate reaction to could not see was that within a week Frank this week's decision. Most who furter wou ld have the strokes that would end his out had no Quarrel with the idea that WRITING THE FIRST DRAFT OF HISTORY 181 unequal districts are intolerable. Once of from filing Lewis noted that apportionment the Court was "reflecting a national moral cured the arm of sentiment" as the "national conscience [] is probably could not be." by any state's misbehavior."3o Lewis Since Lewis had already labeled the situation a held similar views on "Once "disease," who could complain when the Court no complicated motive need be mandated a The Supreme Court was moral consensus on anticipating a National lIIIoral Values taken How does one explain Brown v. Board 25 ULt.'''Ufl. Baker v. Carr, and Mapp v, Contemporaneously, All three ofthese examples thus had a na Thomas Mason would have cited footnote tional moral judgment behind them, four of Carolene Products, and the height and importantly, in each case, if the Court did ened duty of the Court to enforce the not act, nothing would be done so Lewis of the Bill of Rights, to access to the believed). political process, and to protect discrete and A confession is necessary here, I read insular minorities from laws this article about thirty years ago and was them. most law After all, the Warren Court was 29 Writing for the Sunday a footnote four Court, and Lewis offered a profoundly dif either hadn't seen it or it with the third his "national moral values" conclusions. Then, seized the pre- sometime in the late 1980s, I st3lted to take a lewis argued in his col umns that the decisions of the Warren court (pictured) on segregation and other issues had a national moral judgment behind them. 182 JOURNAL SUPREME COURT HISTORY 42 dim view offootnote four's explanatory power. upon a latent consensus. The r.u,>n,,'hpi This ofmind eventually came out in my believed in majority rule. work on the Warren Court with the conclusion There are two more points to make with that the Court is best understood as a func to the article both go to when it was tioning of Kennedy-Johnson Iiberalism.33 written. First in retrospect, it is not clear at all That the Warren Court reflected main that segregation could only have been ended stream, majoritarian values and imposed them 43 The Civil Rights Act and the on outliers: the rural Act had far more than and urban areas dominated the judicial decisions. Writing before King and II Catholic I never reread Lewis's Bull Conner in their ways mobilized (until preparing this article) and thus I northern Lewis did not see the never gave it the credit it so richly deserves. bility that direct action could lead to legislation At a time when Alexander Bickel was offer- and victorY. If that is a failing, it is hardly his his countermajoritarian difficulty,34 Lewis alone.44 had the insight that the Court was behaving in the Court may not have been im a majoritarian way. plementing national moral values. Lewis's ar Lewis's analysis, needs ticle was published a week before v. some qualifications. Mapp wasn't about the came down. There has never been third not hav a "national moral consensus" to ban prayer a or counsel at trial. 36 It was in public schools, and the backlash about suppressing relevant evidence that the was immediate and overwhel seized without probable cause. In other Lewis noticed the criticism and properly at words, it was about a defendant tributed much of it to Southern hostility to who had a procedurally fair chance to prove the Court But he it was his innocence. As and Miranda38 more than and stated that the opinion in would much of the public was not keen "deeply disturbed some law on coddling criminals. Mapp thus reflected and close Washington students ofthe Court. ,,47 no national moral consensus. It did, however, the Court should have avoided the reflect the views of liberal issue by either review or putting it urban, agnostic, Eurocentric-at a time off on a lack of standing. A year after were coming il1to their own power, and those Schempp,48 Lewis noted that the opinion was liberal elites rather assumed only the better than Engel and that to a "remarkable de- backward would hold different views. the American people had come to see Although Brown was always popular na that the Court was Here he cited tionally when tested in a Poll, its church vocally supporting problem was that white Southerners cared their flocks for Schempp. about segregation vastly more than their north As with the other areas, when Lewis ern and the of feel thought he saw the national he ing mattered. 39 It took Martin Luther King was actually seeing the conscience of well and Birmingham to civil on north minded people like ern television sets and therefore the northern like those of his co-workers at the Times-and 40 The result was to match the view that like the Justices ofthe Supreme Court,50 That was wrong with the determination he saw, as others did not (and have not), to do about it,41 the majoritarian of the Warren Lewis was on Baker v. Carr. Court because people like himself were con Robert McCloskey noted that the Court had hit trolling the national government. WRITING THE FIRST DRAFT OF HISTORY 183 HUAC and McCarthyism Warren's was taken at rhetorical then HUAC was finished. But two years later, While Engel came down after the national in the next HUAC case, Barenblatt v. United moral consensus article, a number ofdo 59 the new 5-4 walked away mestic security cases had been decided by the from Watkins' implications. Lewis looked back Warren Court and Lewis did not mention a at Watkins to note there were two one. There is a reason; by 1962 the law was of the case: "Many persons, including a large unattractive and bore an unfortunate re number in read the Watkins decision semblance to the law in 1951 (two years before as a tight rein on Warren took the center chair). Others saw it as a When Lewis won his first Pulitzer Prize, ral and were ,,60 Senator Joseph McCarthy had already been "Close observers"-who I suspect were the condemned by the Senate. the time of "others"-called Barenblatt "one of the most death in 1957, the Court was ac decisions in recent years because it tively dismantling the domestic security pro indicated an unwillingness to restrain the sub gram by 52 in the stantive powers ,,61 Fifth there was an extraordinary For purposes of First Amendment ju backlash at the Court, and the Justices, in Barenblatt is the explicit intro a series of 5-4 votes, reversed course. What duction of balancing as the appropriate makes this reversal is that it was m.>tn,,,,....">,,, ..,,, for It pro- occasioned by Frankfurter switching debate on the Court between sides. 54 Thus it put two things Lewis knew very Harlan and Black and off the Court between well in conflict: the Harvard's Harlan-Frankfurter supporters and and the Harvard Law School faculty (who not those identified with Yale Black and only worshipped Frankfurter, but had contempt Douglas). Lewis could not anticipate this de for L. Black and William O. LJ"U""."~. and he did not discuss Harlan's view of who were both dissenters from the that Harlan 55 "nun'~~could not inquire into the contents of The most important cases, because they a college lecture. He did quote Black's attack were the most factually and pro on but no where did Lewis note that duced an intense jurisprudential 56 Harlan had not found anything to balance on involved the House UnAmerican Activities Barenblatt's side. Committee (HUAC) and its of ex- Lewis as many communists and unrepentant Review" article Thomas Jefferson ex-communists as it could. HUAC and his manual of parliamentary practice on acted as a enumerating commu the issue of upholding the power to punish cit nists one at a where the punishment, izens for "On the one hand were meted out by others, was loss of the Government's essential of self and social ostracism. Those who would not co preservation,' on the other the citizen's right operate were cited for of '-'U·"I",lv00. to and trial for any misdeeds. The poshlre ofthe cases reaching the Court was He concluded: 'Which of these doctrines will that of a conviction for of prevail time will decide. '" Seemingly by a witness who refused to answer questions what "close observers" had told him on but did not take the Fifth Amendment eitherY Monday about the Court's unwillingness to re In 1957 Chief Justice Warren had de strain HUAC, Lewis wrote that Barenblatt did livered a verbal assault on everything about not offer a "clear to which doctrine HUAC in Watkins v. United Stales.58 If would prevail. He that there would 184 JOURNAL OF SUPREME COURT HISTORY be both substantive and PWi;CUUI Judicial Qualifications of HUAC: "And even Brown plus two blows to state domestic secu said a court could not examine the motives of programs, and 66 initi a committee to see whether its was 8il11 ated a debate about the competence ofthe Jus exposure ofa not legislation, there tices and the need for prior judicial may still be occasions for finding that a com as a for elevation to the mittee and improperly sought to Court67 After what he deemed was his take over the of the courtS."62 mistake in putting Earl Warren on the Lewis should have stuck with his close President Eisenhower made prior judicial ser observers rather than his respect vice a requirement. He added one for the Court. Barenblatl was the green light ification: "We must never appoint a man who and two 1961 cases showed 63 Both in doesn't have the recognition of the American volved well-known opponents of HUAC who Bar Association. nr.-.tpctp,-j HUAC hearings to be held in the The debate over prior judicial experience South (where feared HUAC would im out as the crisis ofthe 1950s and ply ties between communists and civil rights and national conser One was subpoenaed after he wrote vatives lost their clout. Distinguished nomina members of that HUAC be tions ofoutstanding like Byron White, from holding the The other Abe Fortas,69 and Lewis Powell seemed to was subpoened when he arrived in Atlanta to protest the hearings. Both were asked whether they were communists. As BUAC both refused to answer, and both were found in contempt. What made their cases different from all the cases was that before there had been some evidence linking the wit nesses to communism; here there was none, only that the witness opposed HUAC. The in ference was unmistakable: HUAC was using its power to those protesting its behavior.64 Justice Stewart, for the prevailing 5-4 ma- found their cases from Barenblatt. The government's interest in their interest in about communist Lewis quite concluded that the 1ificance of the decisions is that a firm and albeit narrow, of the Court refused to put tight legal or constitutional limitations on in- In response to a debate during the 19505 over committees." What Lewis did not whether Supreme Court nominees should have prior state, perhaps because he had not figured it out judicial experience, lewis pointed out that such a requirement narrows the pool and historically would his Harvard sources would have have ruled out John Marshall, Joseph Story, Roger disputed it) was that as a matter there B. Taney, Samuel Miller, Joseph P. Bradley, Charles Evans Hughes, and louis D. Brandeis. He also noted was no at all, but rather an automatic that widely praised judges such as learned Hand for government. (above) do not always get selected. WRITING FI OF HISTORY 185 answer which side won. Yet the for were on the mark; those sure beat whether or competence widely understood was illusory. not one loves Roe v. Wade. 8o Powell's appointment, over years ago, was the last time a President nominated some Judicial Portraits one other than a sitting judge to the Court. Lewis's piece on the desired qualities for a Jus What matters today is whether someone en tice set the stage for warm about both dorses Roe v. and what better way Felix Frankfurter and Hugo L. Black when is there to know than to see how an indi each reached his birthday.8l Nei vidual treated abortion while judging on a ther had prior judicial experience. Although lower court? we have Lewis is positive about both Justices, hints Eisenhower's crabbed view. both and small point to Frankfurter as Lewis made the liberal Establishment by far the more important of the two. The case against prior {one that holds Court Justices Lewis mentions in the First, prior judicial Frankfurter are Frankfurter's "heroes" narrows the pool, and historically would Holmes and Brandeis. Black's jurisprudence is have eliminated John Marshall, explained to the reader by contrasting it with Roger B. Samuel Miller, Frankfurter's. Frankfurter Bradley, Charles Evans and Louis D. at issue; Black Brandeis?1 Second, even ex perience, Presidents don't always select Although the descriptive paragraph most praised" judges, Learned Hand and shows that both are truly men, well Calvert 72 Lewis even downplayed worth knowing, Frankfurter's reads Justices Holmes and Cardozo, that better: it was not prior judicial them great, but the fact that they were Holmes "Justice Frankfurter is no and Cardozo.73 intellectual. He a cultivated man, To back his conclusion about the irrel an eighteenth-century man in the evance of prior judicial range of his interests. He reads brought forward most obscure news correlation between prior paper stories, philosophy, and fitness for the function of the Supreme reports of the courts Court is zero."74 Lewis added that this was also Australia. He the conclusion of"many ofthe corresponds with people all over and present.,,75 the world. Among his friends have and the ABA been John Thomas Mann, seal of Lewis claimed there was AI Alexander Wolcott, Albert a need for broader "a of Alfred North White view-an understanding of the politics and so Chaim Weizmann, Franklin cial institutions which the Court often helps to Roosevelt.,,84 Lewis then added the ability to "is described as a to reason, and an intelligence that the gracious and generous host change of mind78 He closed with Learned to, among whose Hand: The proper for the Court are judicial views he deplores. He will an with them dis ity, some-but not too much-reserve toward cussing, not but world affairs and above and politics and books. before the vast unknown. They especially because 186 JOURNAL OF SUPREME COURT HISTORY Justice Black is an ""'\.lU<011t votes and more have reader. Lacking much formal educa caused him to question. he decided to make up for it contrast the Black piece holds up He has read all of (although those who remember Frank Murphy Plutarch, Locke, all the great would properly note that not nat works of history and philosophy, most zealous advocate of individual classical and modern. the era). Lewis's portrait of Black needs up dating because Black's long-career had The article on Black makes its case that he was "one of the most remarkable . the career ofsomeone who m!prd Attorney General Robert Kennedy wrote this joking inscription to Anthony lewis in 1965 when the reporter left his Supreme Court beat to write editori als. "The New York Times wrote another unfriendly editorial-and I just called you in to tell you I have this investigative report in my hand-Anyway when I heard you were leaving the Supreme Court and the Department of Justice! knew there was no future for me--When you become P.M. call me-Bob Kennedy." strokes and the choice of as his 99 unconsciously, Lewis was replacement. in the creation of the cult ofthe Court That was bu t one ofmany that became a of modern liberalism. loo summer race student protests, Vietnam Along with how to do the well, that would the of liberalism that may have been his legacy. and help shake the Times from its npr(,pe,t, *1 would like to thank Tom Krattenmaker, H.W. that it was a part ofthe national government.97 and David Rabban for their helpful com Lewis was a not a seer, and he ments on earlier drafts. f also made some reflected rather than transcended the dominant based on Lewis's comments on the opinions of the era. But his platform allowed previous draft. him to influence those His Sunday articles--not to mention his book on Gideon ENDNOTES v. celebratory. They are I Gay Talese, The Kingdom and the Power 350 (1966). with the 2Harrison Salisbury, Without Fear or Favor 411 (1980). problems in our 3Lewis won tile 1955 Pulitzer for national reporting based our national moral consensus, and on stories about the Navy Department's dismissal of 188 JOURNAL OF SUPREME COURT HISTORY Abraham Chasanow as a security As a resu It of For reasons appeanng in foot!1otc I j st/pra, I have limited Lewis's stories, Chasanow was reinstated and the Navy disc\lssion to Lewis's that appeared in the acknowledged it had comnlltted a grave injugtice. AI the 11mes. time Lewis was a reporter for the Itasilingw/l Daily Nell·s. 14 A II the quotes come from April 1, 1962 4369 US. 186 (1962). made the same point in "Legislative Appor 5Linda Greenhouse claimed the other Pulitzer in 1998. tionment," Har" L Rey. ut I U9 I 6The Harvard faculty was also able to offer whatever 16ln id, at 1096 Lewis quoted Rober!laeks.)n, The Strug Frankfurter wished to pass on not wish gle for Judicial Supremacy 285 (1941): "[W]hcJl the do so himself). I know Lewis tried to clerks channels opinion and of peaceful p.ersuasioo cor as but I do not know ifhe ever succeeded. rupted or these political 110 longer a Justice would easier. be relied on, and the democratic system h, threatened at its Apporliollmenl alld llie Federal Courts, 71 most vital point. In that event the Court, by intervening, Harv. L Rev. 1057 (1958). restores the processes of democratic government; it does 8Perez v. BrownH'ell, 356 U.S. 44 (1958) and Yj'op "Dulles, not disrupt them. 356 US. 86 (1958) (involuntary expatriation): "The Jus 171d. tices put their deep philosophic differences on vivid dis ISThe Democrats, in fact, got the initial advantage, but play Monday, in their written opinions and even lhat because many ~tates redistricted in 1965 after Democratic land,;jirle. verged on the bitter, even waspish." 1,1962 at E3.1 cannot help believe thatSolic Dick v. New York Life Ins. 359 itor General Archibald Cox was aiding The com stating a jury verdict for a widow): Warrell "reviewed in ment rd1ccts exactly what Cox argued as amicus in the next human, almost folksy terms, the issues in the case" while round of LucM A. Powe, Jr., The Warrell Court Frankfurter "read his colleagues lecture on the need and American P(Olitics 246 (2000). conserve the Court's time and energy by avoiding trivial US. I (1964) cases." May 19, 1959 at I. ( 1964). 90n the other hand, writing accurate summaries has proven 1964 at E6. difficult for allY llumber of others. 23 Lewis had already concluded that Frankfurter's fears IOJames Reston, Deadline 204 (1991). were overstated. "Legislative Apportionment," 71 Hal'" II "Once during the early Kennedy years when the Admin L ReI' 1057. istration was at the height of its arrogance, particularly in 24 Ait quotes are from February 23. 1964 at E6. He had its image making, Reston decided that Ted Sorenson [Pres previously used the disease and cure imagery in Legislative ident Kennedy's chiefof staft1 had been bullying Ius new Apporlionmel1l. 71 Harv. L. Rev. at 1097. and not yet entirely established man at the While House, 25 347 US. 497 (1954); 349 U.S. 254 (l955). Tom Wicker. So he picked up the phone and he called v. Ohio, 367 643 ([961). Sorensen and rather gently suggested that would prob 27 Un!led Slales 1'. Cam/ene Products, 304 US. 144, 152 ably not be a good idea to push Wicker around. 'We n. 4 (1938). here before you got here, Ted,' he reminded Sorensen, and Thomas Mason, The Supreme Court from we will be here you are gone." David Halberstam, Tart to Warren (1958) ed. 1968). Interestingly The Powers that Be 221 (1979). enough, although Mason was the McCormick Professor 12Reston "believed that The Tunes a/one had the audience of Jurisprudence at Princeton and John Hart Ely, who that moved America. The President of the United States became the premier exponent of footnote four, took an read it every morning. and so did the Congress, and so undergraduate course from Mason's successor, Walter F. did seventy embassies in Washington, including the Rus Murphy, Ely was apparently unaware Mason's work. sians. More than half the college presidents in the United Walter Murphy, Constiluliona/lnlerpretation, 8 Reviews Slates read The and more than 2,000 copies were in American History 7,13 n. 3 (1981). sold day at Harvard, more than 1.000 at Yale, 700 The Warren Court at 214. at Chicago, at Berkeley. These were the people that }ll"Historic Change in the Supreme Court," June 17, 1962 Reston wished to influence-the Establishment of today, at 73, 75. the Establishment oftomorrow: he was the Estabhshment 311d. at columnist, and he could be that only on The Times." Talese, 32Id. at 78. Kingdom and Power at 346 (emphasis HI original). The Warren Court 494: The Warren Court J3Those that appeared in the Magazine are chapters in a "represents the purest strain of Kennedy-Johnson liberal New York limes book, The Supreme Court under Eul . demand[ingthat) national liberal values be adopted Warren (Leonard Levy ed. 1972). I have cited them by in outlying areas of the United States and that the rural their date in the Magazine, but to their pages in the book. dominance of state legislatures, which it believed were WRITING THE FIRST DRAFT OF HISTORY 189 precluding necessary solutions to urban problems, be bro 53 Id. at 127-34; Walter F Murphy, Congress and the ken. In the criminal procedure area, it took the lead as Court (1962). the branch of government most familiar with the prob 54Powe, The Warren Court at 141-42. lems and most capable of supervising the solutions. The 55 L. A. Powe, Jr., "Justice Douglas After Fifty Years: The Court's belated welfare decisions were an assault on both First Amendment, McCarthyism, and Rights," 6 Consti national and local bureaucracies, but in moving toward lulional Commenlary 267, 278-79 (1989). constitutionalization, the Court was several years behind 5GThe most focused exchange was Laurent B. Frantz, "The the Great Society in creating new rights." First Amendment in the Balance," 71 Yale Law Journal 34 Alexander M. Bickel, The Least Dangerous Branch 1424 (1961) (against balancing) and Wallace Mendelson, (1962). "On the Meaning of the First Amendment: Absolutes in 35 Griffin v. Illinois, 351 US. 12 ( 1956). the Balance," 50 California Law Revinv 821 (1962) with 36The piece pointed out that the Court had agreed to review a response, Frantz, "Is the First Amendment Lawry" 51 the issue the next Term. California Law Review 729 (1963). 37 Escohedo v Illinois, 378 US. 478 (1964). 57The reason for not taking the Fifth was to avoid the label 38Miranda v. Arizona, 384 US. 436 (1966). "Fifth Amendment Communist." 39Powe, The Warren Court at 37. 5R354 US. 178 (1957). 40 fd. at 225. 59 360 US. 109 (1959). 41!d. at 226: "By July [1963], over 50 percent of the res 60 June 9, 1959 at I and 35. pondents [to Gallup] [would][] name civil rights [as the 611d. at 35. most important issue facing the country]. Burke Marshall, 62AII quotes are from June 14, 1959 at E7. head of the Civil Rights Division, stated that 'the Ne 63 Braden v. Ulliled Siales, 365 U.S. 43 I (1961); Wilkinson gro and his problems were still pretty much invisible to Ii Uniled Siales, 365 U.S. 399 (1961). the country until mass demonstrations of the Birmingham 64Powe, The Warren Court at 147. type.' Brown v. Board oIEduCGliofi had brought out the 65 Pennsylvania v. Nelson, 350 US. 497 (1956) (state sedi worst in the American South, and King had learned how tion laws protecting the United States preempted by the to reflect that southern behavior to the American North to Smith Act). bring out the best in the country" 66 Siochmver v. Board of Educalion, 350 US. 55 I (1956) 42Robert G. McClosky, "Foreward: The Reapportionment (cannot fire a public employee merely because he took Case," 76 Harvard Law Review 54, 58-59 (1962). the Fifth Amendment on a question about past communist 4JGeraid N. Rosenberg, The Hollow Hope (1991). activity). 44 Two generations of law professors, with access to far 67Powe, The Warren Court at 85·88, 99lO2. more data, continue it. 6s"What Qualities for the Court?" October 6, 1957 at I 14, 45 370 US. 421 (1962). 116-17. Eisenhower also mentioned a need for younger 46Until Roe v. Wade, 410 U.S. 113 (1973) no decision Justices. prompted such an outpouring of angry mail. Powe, The 69The first, not the second time. Powe, The Warren Warren Court at 187. Court at 212,469-75. 47July I, 1962 at EIO. 7°410 US. 113 (1973). 48 Abingdon School Disirici v. Schempp, 374 U.S. 203 71Those were his examples, probably given to him by (1963). Frankfurter. Qualities at 116. We could add Hugo L 49 June 23, 1963 at E4. Black, William O. Douglas, Robert 1-1. Jackson, Earl 50The born-again Christians of the South were invisible Warren, and Powell. elsewhere, and Lewis was hardly alone in seeing liberal 72 Id. Protestant (and Jewish) views as those of all but a hand 7JCardozo was a great state court jurist, but his Supreme ful of Americans. Consider Philip Kurland's lumping of Court career was simply a liberal vote. Lewis's sources those who opposed Engel together with segregationists could not step back and realize that Cardozo should have and Birchers. "Foreward: Equal in Origin and Equal in been left in New York. Title to the Legislative and Executive Branches of the 74 fd. at 115. The choices were Frankfurterian conven Government," 78 Harvard Law Review 143, 176 (1964): tional wisdom. Today, many, if not most, law professors "The Court has been most fortunate in the enemies that it cou Id not identi fy Magruder, the charming, intell igent, has made, for it is difficult not to help resist attacks from First Circuit jurist. Hand, by contrast, remains an icon. Yet racists, from the Jolm Birch Society and its ilk, and from Gerald Gunther's massive biography, Learned Hand religious zealots who insist that the Court adhere to truth (1994), demonstrates, albeit unintentionally, that the na as they know it." tion was well served by leaving Hand on the court that 51 Powe, The Warren Court at 154-55. matched his talents. 521d. at 92-99. 7sfd. 190 JOURNAL OF SUPREME COURT HISTORY 76Lewis was not much impressed with ceding a veto to the intelligent people has something about him that is not be ABA, which he aptly labeled a private organization, not ing reflected in Frankfurter's current academic standing. representing all lawyers, and "which has often spoken for Could it be that he, like William O. Douglas (the man he a particular point of view," ld, at 117, engaged in a reciprocal hate relationship with), was mis 77 fd, If he had spent less time with judges and law pro cast as a Justice? .lust as Douglas should have remained fessors he would have added intellectual movements and in the executive branch, perhaps Frankfurter should have recognized the reciprocity by adding: "and which shape remained an academic-advisor. the Court." 93See Roger K. Newman's excellent biography, Hugo 780n the latter he naturally cited Robert H. Jackson, who Black at 325: "Black could take deep and complicated also should have been cited for having the best writing concepts and clothe them in easy, graceful, direct, almost style of any Justice, simple language that was concise, clear and crafted per 79Qualities at 119. fectly to his purpose." He wanted his opinions to be under 80They also read like the anti-Bork. standable to "people in barber shops." The opinions that 8l "An Appreciation ofJustice Frankfurter," November 10, would satisfy that Harvard Law School faculty would not 1957 at 120; "Justice Black at 75: Still the Dissenter;' be so understandable to those without legal training, February 26, 1961 at 128. 94There were no portraits of Earl Warren on his seventy 82No one believes Black's year as a lowly police court fifth year nor any acknowledgement that Douglas had judge in Birmingham at the very beginning of his legal reached his quarter-century mark as a Justice. Neitherwere career counts. Roger Newman, Hugo Black 29-30 (1994); deemed that important at the Harvard Law School. More Powe, The Warren Court at 87. understandable were the omissions of John M. Harlan and 83 Black at 132. William 1. Brennan,.lr. Harlan was deemed Frankfurter-lite 84 Frankfurter at 125. until much later, while Brennan was only coming into his 85Black at 134. own as Lewis was moving on. Powe, The Warren Court 861d, at 128. at 143,303, Lewis (at a time Fred Graham was the Times' 87Frankfurter at 127. Supreme Court correspondent) did a piece on Warren after 88 Black at 129. the latter announced his retirement. "A Man Born to Act. 89Frankfurter at 123. Not to Muse," New York Times Magazine, June 30, 1968 90The prevailing view now is well expressed in Melvin I. at 151. Urofsky, Felix Frankfurter x, xii xiii (1991): "Instead of 95]n an earlier draft relying on Ed Cray, Chief Justice 3 12 being the herald of a new jurisprudential age, Frankfurter (1997) I credited Lewis with persuading Warren to aban fought a valiant but ultimately ineffective rearguard action don "Decision Monday" and spread the opinions through to divert the court from what he considered a disastrous out the week. Lewis demurs, "One statement ofyours puz path. A quarter-century after his death, his opinions are zles me-that I persuaded Warren to spread out opinions. I all but ignored by both the courts and academia ... 1. too, am quite sure I did not do that." Email to author, November began my work thinking ofFrankfuner as a great man; the 3,2002. more I learned, the less I cared for him. My middle point 96Powe, The Warren Court at 252: In the Courtroom might better be described as 'guarded respect,' and that Lewis passed a note to Solicitor General Archibald Cox Judgment informs this study." asking "how it felt to be present at the second American 91 It has been t\venty years since Michael E. Parrish pub Constitutional Convention'?" lished Felix Frankfurter' and His Times: The Reform 97The Washing/on Pos/, too, would move. One need only Years (1982). That promised to be the first volume on a look at Ben Bradlee's transformation from lapdog to man who "for over fifty years, .. enlivened our politics watchdog. and enriched our legal culture." /d. at 4. So far it also is 98 372 US, 335 (1963). Gideon's Trumpet (1964). I have the last volume, Parish's volume came out one year after discussed Gideon's Trumpet elsewhere and am not as publication of H,N. Hirsch. Tbe Enigma of Felix Frank celebratory of the process (nor am I as sure that Gideon furter( 198 1). That psycho-biography paints such a hostile was innocent). Powe, The Warren Court at 379-86. portrait of Frankfurter that the reader almost sympathizes 99Domestic security, where there was no consensus, was with him because no one could be so horrible. the exception-at least until Goldberg. 92 As The Warren Court and American Politics (2000) looMark Tushnet, "The Politics of Constitutional should make obvious, 1 am not going to be the one to Law," 79 Texas Law Review 163, 187 (2000): "[l)n the lead a Frankfurter revival. Nevertheless, a man who was Great Society, liberals thought, we had to have a Great held in such high esteem by so many accomplished and Court." The Journalist as Historian: Anthony Lewis, Civil Liberties, and the Supreme Court STRUM* The ofthe column that Lewis wrote for The York Times between 1969 and 2001 was a red face--not but that of Arthur Ochs The Times' offered Lewis the column as a consolation after informed Lewis that the job of deputy to A. M. the new executive was open and that Lewis was a logical candidate. 1 Content with thejob ofchief ofthe Times' That was. an London bureau to which he had moved after given Lewis's long love affair with the nation's years of about the Supreme Court, tribunaL He it in 1990, Lewis was nonetheless aware that a column would him a freedom that he lacked as ing the column. "I confess to a roman a He of course knew that reporting tic about the " he wrote. He is journalists choose what had the reason for the romance some and how to report it. Good reporters, years earlier: make an honest to keep their values out of their writing; in contrast, colum By the standards of the world nists are not free to put them in but encour- Americans enjoy free to do so. Moving from the news section dom. We do, I believe, in to the page would enable him to write because of the institution of the about he considered important, whether Supreme Court. the strains or not the editors them newsworthy; of our turbulent the Court and he if he protect the Supreme Court when it came under criticism.2 192 JOURNAL OF SUPREME COURT HISTORY the Court when he disagreed with it. lndeed, the 1980s and early 19905, he excori ated the Court as "statist" in its willingness to endorse the power exercised by the executive branch. He could be caustic in dis- decisions he saw as gravely mistaken, which was his view of Wards Cove Packing Co. Atonia and other Protection Clause of the late 1980s. Yet he was con sistent in his assertion that the "the American contribution to the art of democratic government ... has held a diverse continental country together by nourishing the in institutions needed for sur vival" and that the Justices, "in the process of the Constitution, have done a fair job of helping to keep this country stable and free." "The courts have hardly been consistent defenders of individual liberty," he Arthur Ochs Sulzberger (above), the publisher of The "but the United States would surely have been New York Times, offered Anthony lewis a column much less free without them. Judges have been as a consolation prize after outgoing executive edi important in protecting the of tor James Reston misinformed lewis that he was a candidate for the job of deputy editor to A. M. Rosen what Chief Justice Harlan Stone called 'dis thal, the new executive editor. crete and insular minorities."'s Love of one's subject may not be a nec provisions concentrated offi essary requirement for an there are, cial power.} after all, historians of fascism whose demo The then- cratic credentials have never been in doubt. if indeed it was And some might argue that love of one's sub- realism-was Lewis's view oflhe Court as the is an to the that primary guardian of the liberties he saw em they see as the true hallmark of bodied in the Constitution. The Court's role in phy. This essay assumes, interpreting the Constitution "has hope love ofthe Court was to the Dowerless: it has nurtured faith in the sion for civil American system." was one that could his feelings in no way his to not be left to a for such a body bring his journalistic ski lis to the of "tends to deal with power rather than princi history. ple," and "the of minorities are too im What follows, is a brief overview portan t to be trusted to the of that thesis as demonstrated in majorities." He recalled Felix columns on two subjects racial of the free speech-and the role of the on judges Court in furthering both. He wrote, of course, to save our freedoms. But," Lewis asked, "in about many civil liberties the modern state, with power tilted toward the abortion, the press, criminal due process, and where else are we to capital among them-as well as His love affair with the Court did not, how a plethora of other matters. ever, blind him to its iaoses. He lambasted The choice of onIv two areas, mandated THE JOURNALIST AS HISTORIAN 193 the limits of this essay, is arbi- ist is to report upon the and place it in It should be noted, hn1,l/p'>lpr that two of a context that renders it more Lewis's three books~Portrait of a Decade than the bare facts then he was the best and Make No Law~are about race and as seen in his rponp('t",'pl,; 6 Lewis's discussions of columns, was in his columns his abil public policy disputes in Racial .... UlAClIIIU and civil liberties questions in historical context. If one function of an histo By the time Lewis his column, he had rian is to and reflect upon the and made himself known as an advocate of racial it into the service of the equality, both his reporting and in curate to describe Lewis as Portrait of a Decade. He turned to that theme hallowed breed. If one function of a repeatedly in the in the lewis wrote three books about the Supreme Court: Gideon's Trumpet (1964), Portrait of a Decade (1964), and Make No Law: The Sullivan Case and the First Amendment (1991). 194 JOURNAL OF SUPREME COURT HISTORY In a 1991 column, Lewis traced the history of the Brown If. Board deci· sion and praised Thurgood Marshall (right) and the NAACP Legal Defense and Education Fund for their litigation strategy. "His tory," he wrote, "spurred by the courage of and litigants, found true meaning of 'equal protection' [in Brownl." early J970s and into the twenty used by the first Justice Harlan in dissenting first century. In 1991, more than two decades from it. He went on to discuss the litigation after the column was UUU(;Cll, Lewis went fashioned by Thurgood Marshall and to an advance the National Association for the Advancement series on the cases that made up Brown v. of Colored People Legal Defense and Educa Board of Education. "At the he wrote, tion Fund-what they were trying to do and "I was in tears, as were some others who how they built the litigation. "History," Lewis saw advanced screenings. That testifies to concluded, "spurred by the courage of lawyers the power of the film--and of the events and litigants, found the true meaning of 'equal it describes. They transformed this country ",8 in a way unmatched at any other time or "true meaning of 'equal place."? merits pause. The Fourteenth The tears reflected his passion for racial Amendment has meant different things at dif justice, but a calm rehearsal of the relevant. his ferent historical moments, which Lewis, of tory was not far behind. Lewis discussed the course, knew. Does his use of the word "true" Court's of the Protection that he saw at least one ofthe Con Clause in Plessy v. Ferfrnson and the "r(mrnpnt" stitution as THE JOURNALIST AS HISTORIAN 195 The answer, gIven Lewis's own way the speeches made is no. Like most civil Iibertarians~for such and Johnson on racial were linked to his columns him to be-Lewis re the Court's decision in Brown. He reminded jected the idea of original intent in favor of his readers of that history periodically, writing something more reminiscent of sociological his last column about it in 2000. 12 He of "the miracle of the Lewis continued to report on the con American Constitution: a written document nature of race relations in whose words allow, indeed invite, and the ever more difficult ques change." "One ofthe astonishing about tions that arose. Reading his columns the American Constitution is its its is a history lesson of its own, for one finds contemporary there all the twists and turns of racial relations said elsewhere. "We between 1969 and the beginning ofthe twenty in con first century. Back in 1969, in crete new circumstances. is no cer on the oral argument in Alexander v. Holmes tainty in the Constitution, and there never has and last-ditch attempts to avoid been ... Through aJ I its history, the of Lewis told his readers, to ferocious "The court has made amply clear that the time and to constitution for 'deliberate has passed in the lives because judges apply its eternal princi school so long maintained ples in the ofaccumulated and law in the South." Less than five years later, he wisdom. It is not but reflected that in the years since Brown, "[W]e dicial heroes included Oliver Wendell have been bruised by ... [W]e un Louis D. Brandeis, Felix and derstand that the issues of race and poverty William J. Brennan, all of whom taught that are much more more the Constitution was a in constant than we imagined. . The issues have become need of reinterpretation. '0 so hard that there are arguments on all How, then, did Brown embody the true sides."I) of Lewis One of the most contested issues was af the answer when he wrote, "What produced the firmative action. Its the public'S great ofconstitutional interpretation in discomfort with it, the nation's failure to de- 1954wasa In mourun a meaningful alternative-all are in the ofrace in the human condition."" columns. Lewis documented the history but In other words, the Court's new interpretation made clear which side he was on. While he rec was "true" in the of what the had ognized the of the val learned about race in the years between that and Brown. It reflected the new values that had "The votes in end of the developed as a result. What Lewis could do the retreats and confusions in the ad for his readers was trace the reasons for the the evidences of public all indicate a desire to wish our racial trou He returned to the subject on the twenty- bles away. . . senses ... a weariness with fifth anniversary of commenting that blacks and their and with racial jus "[i]t is hard to now, what this coun tice as a cause." He saw the recommendation try was like before May 17, 1 " and then of neglect" in Daniel Patrick detailing what it was like for the sake han's The Negro Family as stemming from a of those readers who either had or desire for "a pause in the verbal over had never known. Five years earlier, he had race" that could be used to "work at the prob traced some of the same outlining the lems" of the black community. lIe worried, 196 JOURNAL OF SUPREME COU HISTORY however, that "others would use the time not to "is not a quota in the work at the problems but to forget them ... At sense-a number used by the ma least black people might see it that way ... the down a minority. Here a major- blacks would think that any period of is for both beneficent was intended to be not benign but hostile. And and self-interested reasons," the latter being would be right,,14 the harmfulness of "the existence of two na Affirmative action, about which Lewis tions" in U.S. 16 felt became a A column on the various columns on the subject were /JM:>lVlId in their ions in Bakke followed the Court's decision. of the A column analyzed the twists and turns affirmative action took each that the Nixon appointees on the Court year, and historical in their of the dis had not voted and speculating about pute beyond the immediate context When De the internal that might have affected FUllis \). Odegaard was argued in the the tone of the opinions-a succinct lesson in Court, Lewis told his readers, "It has been re the of the Court. Yet another col al ized, slowly, that there is a certain umn described Bakke as "a decision allowing in telling people who have been the victims of most social policy in the field to con discrimination for centuries may now tinue." Acknowledging that the result could be compete at the same starting line for iobs or "to leave things in a vague, middling state," education." The column then Lewis returned to the difficulty of the issue: orously fair summary of the amicus briefs and one who sat in the courtroom and heard philosophical arguments on both sides of the the Justices could doubt the depth ofthe philo case and noted, "There are also intellec sophical conflicts involved.,,17 tual issues ... And there are consid The conflicts did not abate as the years erations of great difficulty."IS went on, and the turmoil was reflected in Lewis returned to the matter of affirma Lewis's columns over the next decade. After before the the Court struck down in Richmond v. Croson III a municipal affirmative-action set-aside in \). Bakke. A series of columns re the Virginia construction flected his to listen to both holding that the set-aside was not place their in historical context, and to evidence of Lewis ar present his own held edu that the decision did not affir cating his readers in the process. "The idea of mative action plans and that the need for some quotas troubles Americans for historical was still apparent. reasons," he conceded. who for The United States is a with a a color-blind society may be troubled" by af bitter legacy of racial discrimination. quotas. But, All around us we see the of on an amicus brief and a recent sur that legacy, dividing our em vey of law-school he warned that law bittering lives ... The remedies must schools would be almost entirely white were be careful and but cannot it not for affirmative action. He recounted the yet exclude consciousness of what of the traditionally con brought us to this point: race. 18 struction in Massachusetts and the that had been in it through "Enlarging the and affirmative action. 'The is that it takes middle class is one heroic measures to end the exclusion of blacks overcoming "the from certain areas ofAmerican life." The issue "Lewis efforts JOURNALIST AS HISTORIAN 197 for minorities may be an essential step to that ditions, poorer and sicker than the end a transition "But whether he rest of us, younger. Ghetto with the decision in Croson or not, he crime and violence, espe took the time to remind his readers of another on blacks, degrade the life of feature of the case: our cities ... American society has to The whole was a testa do all it can, as soon as it can, to ment to that most feature of young black men and women the American system, the reliance on other dreams and other chances to decide great social issues. them the education and the mo tivation to go up and out21 It was a "feature" of which he ap Earlier, about President Bush's proved, even decisions from veto of the 1991 civil bill, Lewis had tile Court it all offered a condensed version of the relevant It was history, Lewis said, that con Lewis's championing of affirmative ac tradicted Bush's assertion that the bill would tion reflected his distress at the he be lead businesses to use quotas in lieved racial was to the coun try. Column after column explained his view In 1971, in the Griggs case, the and filled in the When Hopwood v. Supreme Court held unanimously Texas ended affirmative action at the that the Civil Act of 1964 pro he spelled out his concern hibited not only intentional discrimi in detail: nation in hiring but that had the effect of hurting women and mi One achievement of American soci norities. Businesses operated under ety over the last decade has been the that standard for 18 years without us- of a substantial black profes quotas. sional class: role models to young Then last year, in the Wards Cove black men and women, and to the rest case, a 5-to-4 majority ofthe of us. That was possible only because Court ... said employees who sued universities, blacks' in over a that tended to exclude herited burden of discrimination and women or minorities had the burden their own need for greater diversity, of proving that the was not more black students. . related to job requirements ... This country is to become The vetoed legislation would have more not less. Unless uni put the burden back on to versities are allowed to look at the prove that a practice with a discrimi reality of students from bad natory effect was necessary for busi schools and consider their capac ness reasons. for individuals-it is In a rare moment of public exasperation with America even more even the other Lewis Bush rather more susceptible to racial discontent than Bush's action: "Race is the most divisive and demagogy. issue in this country. No responsible A decade later the country had would try to block moves to ameliorate the ten made little progress in the sion." He wrote in the same vein when Califor problem. nia gave up affirmative action in its institutions Race is the most of education: facing American In the life ofAmericans, race is a pro underclass lives in appalling con found factor. Blacks may be or 198 JOURNAL OF SUPREME COURT HISTORY dull, rich or poor, but their experi in the country, writing in a daily newspaper, ence in life has been different from who supplied readers with as detailed a legal whites' ... history of it. Now it turns out that regents who voted for what they called "merit" ad * * * * * missions had leaned on the University A number of Lewis's themes came to ofCalifornia at Los Angeles to admit gether in a series ofarticles about the situation the children of friends ... that culminated in the Bob Jones University In other words, we have affirma case. The dispute became the occasion for tive action for the privileged. But not Lewis to demonstrate his strong antiracist be for the race that was enslaved for 200 liefs and his support for the Supreme Court as years and abused for another 100 and an institution. It also provided an example of more.22 the way his columns would become a resource for future political and legal historians. Lewis was normally highly respectful of Bob Jones University did not permit in persons, ofthe American political system, and terracial dating or marriage or the advocacy of the relationship between persons and that of interracial dating or marriage. It enjoyed system. He assumed that reasonable people tax-exempt status until the Internal Revenue could disagree. Strongly held opinions were Service declared in the 1970s that recent court no excuse for incivility. He was completely rulings required it to revoke the status ofeduca opposed to Robert Bork's nomination to the tional institutions that were racially discrimi Supreme Court, for example, and wrote a se natory and therefore operating contrary to pub ries of columns explaining why, but in them lic policy. In 1976, the IRS applied the new he described Bork as "this intelligent and en regulation to Bob Jones and revoked the uni gaging man," a "kind and intelligent person, versity'S tax-exempt status. understanding the difficulties of the judicial The matter drew public attention when, function"-who nonetheless held views that in 1982, President Ronald Reagan announced made him ill-suited for the nation's highest tri that the government had a legal obligation to bunal. He generally disagreed with Chief Jus restore the tax-exempt status of discrimina tice William H. Rehoquist, but he could write tory schools and colleges because Congress that Rehoquist was "amply qualified" for the had never passed a law denying such status. Bench "in terms of intellect and legal skills" Lewis's response was, again, strongly worded: and that his views did not make him an ogre. Presidents say a good many foolish "To the contrary: the language ofthe Constitu things, and I have heard them for tion is so open that different judges may hon 30 years. But I do not think I have estly read it in very different ways." Wary of heard anything more preposterous, Justice Antonin Scalia's views, Lewis nonethe lame, cynical or outrageous than what less praised "the zest and the craftsmanship Ronald Reagan had to say about "the that he brings to the job ofjudging," his "tough law" and racist schools. mind grappling with the hard issues." But in "The Internal Revenue Service had the heat of what was clearly his anger at the actually formed a social law and veto of the 1991 civil rights bill and a setback was enforcing that social law," Mr. for racial equality, Lewis fumed, "Something Reagan said. is missing in George Bush. An empathy gene, if there were such a thing.,,23 That was far from accurate, Lewis declared, One mayor may not agree with Lewis's drawing on the historical record to put the pres defense of affirmative action, but it seems fair idential pronouncement into political perspec to suggest that there was no other columnist tive. The IRS had framed the rule during the THE JOURNALIST AS HISTORIAN 199 Nixon years in the light of a number of court for argument before the Supreme Court. Lewis decisions. To Lewis, the IRS had simply fol returned to the matter a few days later, noting lowed the law. The Republican party platform that the reaction ofthe Justice Department had of 1980, however, had called for an end to tax been to pull the brief it had prepared for the rules "against independent schools." Senator two cases. The brief had argued that the denial Strom Thurmond, a trustee of Bob Jones, had of tax exemptions to racially discriminatory pressed Reagan hard for reversal. Lewis was schools had been supported by Congress and indignant: detailed that history, now summarized briefly by Lewis. As he reported in yet another col What the President is actually doing umn, the Depa11ment told the Court immedi is this: taking a long-settled area of ately after Reagan's speech that as the schools the law, reversing it by executive fiat would soon have their exemptions from the and then inviting Congress to restore rule, the cases were moot.25 the status quo ... The lawlessness of The Court disagreed, and ordered the the whole affair is breathtaking. A cases to be heard. Oral argument took place President on his own motion upsets in a climate of strong criticism of Reagan's a decade oflaw ... [1]s it really "con new rule from the legal community. As Lewis servative" to play fast and loose with the law?24 had noted, "What is needed now is some face saving device that will return the whole ques When Reagan acted, the Bob Jones case tion to ... the courts." Now he commented, and a companion case were already scheduled Listening to the Supreme Court ar gument on tax exemptions for dis criminatory private schools, I thought to myself that the Court nowadays performs a function seldom men tioned by scholars ofthe judicial pro cess: it provides a convenient way for politicians to escape responsibil ity for awkward decisions. Discussing the arguments made by both sides in the Court, Lewis reminded his readers of the political history. It was not a bad thing for the Court to be able to dig politicians out ofthe hole they had dug for themselves, he suggested, because "[s]ome issues are better explored in the more subtle and morally spacious tenus open to judges." But, he added, "it would be nice ifpoliticians who dearly love the Supreme Court to take awkward issues off their hands would stop denouncing the Court for 'judicial activism. ",26 The Supreme Court held, in an 8-1 deci lewis was incensed when Senator Strom Thurmond (above), a trustee of Bob Jones University, pressed sion written by Chief Justice Warren Burger, President Reagan hard for a reversal of the IRS's deci that "[R]acial discrimination in education vi sion to revoke the university's tax-exempt status. The Court eventually ruled that taxpayers need not support olates a most fundamental national policy, as a university having racially discriminatory policies. well as rights ofindividuals ... Given the stress 200 JOURNAL OF SUPREME COURT HISTORY and of the history of efforts to escape ofdeprivation. It is a matter not only from the shackles of the 'separate but equal' but of the majority's self-interest."29 doctrine ... it cannot be said that educational The good of the entire country was at institutions that, for whatever reasons, practice stake, and Lewis cared about racial discrimination ... should be encouraged but much of his passion was for those most all share in their support hurt by racism. That was not accidental. In tax status." "It is a long time the early 1950s, when Lewis was a young re since an Administration has suffered such a de porter for the Washington Daily News, he was feat in the Supreme " Lewis wrote. "It permitted to suggest the topics of his articles. was a humiliation." But how, he asked, "could He found himself writing over and over again a President at this in our history play with about the Red Scare and its impact on the in the issue for political dividuals hurt by the country's McCarthyism. Lewis was equally angry through the late That led him to realize, he said later, that 1980s and I 990s at what he saw as the Court's he had an "instinctive identification with the move away from the modern constitutional underdog"-that one of his primary concerns mandate for racial equality. "The legal effort was "ending unfairness and cruelty."3o Writ more blacks into the mainstream of ing a laudatory column about Justice Harry A. and education is he Blackmun, he quoted former law clerk Harold warned. He put a share of the blame on Koh: "He decided to give his voice to the ex the which "has done a bad job cluded, the powerless." A similar concern for of the underdog, Lewis acknowledged, perme recent years ... ated his columns.}! laws So did his interest in writing about history. discrimination in a reluctant While he would not describe himself as an his- ofa reluctance to enforce civil laws may he was well aware that "this is a coun indeed be a oolite understatement. When the without historical memory, on the whole." Court refused to certiorari in Hnnwrlt1ri "I tried very hard to write about he warned of the IVli:tUlSUJI, the founding fathers." How cxtraor a columnist for a u.s. newspaper Black Americans may be excused if his readers about their 200-year-old see a certain philosophy that illu sudden zeal for on minated it. But Lewis was determined to place behalf of whites. But whites should current events in the context of the past. 32 worry, too. At the end ofthe last cen That 9:oal was Darticularlv evident in his the North wearied ofthe effort to blacks in the South and sold them down the river. That sorry deal Freedom of Speech has haunted the country ever since. The two Court Justices most quoted It was in part the effect of racial in Lewis's columns were Holmes and Bran ity on the country that disturbed Lewis. As he deis. While he referred to their views of the function and to Brandeis's pronounce of this countTY's acute 1.11 v'v,,-,,,,,,, and on unchecked power, it reckoning, is the existence of a black under Lewis as journalist/historian is in his columns and New York Times best by his articles about articles, and spared his readers numerical ci In an essay published in The New York Times of course, is one of the things Magazine in 1991, for example, he traced that his columns a broad reader- the slow of the First Amendment in and that enabled him to fulfill the role of American jurisprudence, telling the story of journalist as historian--or, perhaps, historian the Sedition Act of ] 798, the reactions of as journalist. Madison and the relative unimpor with a theme that he empha tance ofthe Amendment to U.S. jurisprudence sized in his writing, Lewis com during the nineteenth century, and the hostility mented that the Supreme Court "has been at of the Court to claims dur- its worst in with the of secret World War L He contrasted the country government ... [G]rowing secrecy has taken World War I with events fifty years us away from the Madisonian vision ofa Gov later: "Think of the Debs case in comparison ernment accountable to the public." with what happened the Vietnam War, Snepp v. United States, the Papers when hundreds ofthousands ofAmericans op case, and Rust v. Sullivan were posed the war and none went to prison for mere "Speaking truth to power is never to words." The reason, he was that an be easy," he "not even after 200 process had taken place, start years.,,35 ingjust a few months after the Debs decision in Lewis was tireless in the history 1919." He detailed the transformation by quot- of the Supreme Court and free-speech law. He went back to Holmes in Abrams and United States v. Schwimmer, and Brandeis in and sometimes to Harlan Whitney v. Californian in Cohens v. California. When the Skokie case full cycle in when the was in the public eye, he discussed it in the Court returned to Madison '8 spacious context of Near v. Minnesota and Brandeis' vision of the First Amendment" in New York mSlstence oral argument in that case Times v. Sullivan, Lewis continued. "The sys that even untrue speech had to be allowed in tem worked as Madison thought it should" dur a democratic the Near case of the days of the civil 1931 with the Papers case of 1971, "an informed public he commented, icy." Lewis discussed decisions such as Bond We can see now, I think, that they were v. Floyd and v. Ohio from that era not so much victories for the press as and took the story forward with Collin v. Smith for a political experiment, the one be (Skokie), Jerry Falwell's libel suit gun in 1776 ... The American public, cases. to its constitutional role, must be is seldom a nice pro informed ... curve upward, and the modern his At the heart of the First tory of First Amendment interpretation has Amendment-really of the entire been that. There have been many dark Constitution-is an open relation passages," the Palmer raids and the ship between governors and the McCarthy era. Sadly, "the Court did It is still an very little to hold these up to the a one. But it is our ofthe First Amendment," in support of which system.36 Lewis cited Dennis v. United States. 34 "Cited" is perhaps misleading in this con Lewis worked hard to explain why "it text Lewis used case names relatively is our system." He rehearsed once again the 202 JOURNAL OF SUPREME COURT HISTORY reasons for Holmes ' change of attitude toward I 990s, Lewis placed the Supreme Court's de speech between the Schenck and Abrams cases. cision in Rust v. Sullivan in the context not Holmes' dissent in Abrams, which Lewis de only of the abortion debate but of the federal scribed as the beginning of "what could be money that "now goes to thousands of uni called a return to Madison's and Jefferson's versities in this country, to museums, to sci view of the First Amendment," was drawn entific laboratories-and our tradition of free upon once more when Lewis discussed the speech will be mutilated if that money can attempt to outlaw flag-burning. "In truth, the be accompanied by censorship." He called the idea offree speech is neither 'liberal' nor 'con late-twentieth-century drive for political cor servative.' It is, rather, American . .. [I]t is a rectness at universities "a serious threat to the profoundly important part of what the world American tradition of uninhibited speech. It sees as the distinctively American vision of a is a threat from the political far left, unlike free and self-confident society." The column the usual right-wing attempts at suppression began by quoting Jefferson's First Inaugural in our history, but similar in its fear and intol ("[T]he safety with which error ofopinion may erance." Discussing congressional statutes of be tolerated where reason is left free to com the same era that sought to limit speech on the bat it"). A subsequent column continued the Internet, Lewis noted, "The very essence ofthe lesson: on-line world is freedom" but "[t]he effect of the provision [to outlaw "indecent" words] Over the last 50 years the Madiso no doubt the intended effect-will therefore be nian view ofthe First Amendment has to reduce all users ofcyberspace to the level of been fully accepted by the Supreme children.,,39 Court. The flag decisions last year His strong defense of free speech did and this year were only the latest in a not make him an absolutist. He regretted the long line of cases protecting expres Supreme Court's decision in Buckley v. Valeo, sion obnoxious to the majority.37 striking down the expenditure provisions ofthe Reviewing the prosecutions of 1970s 1974 Campaign Reform Act, and chided, "In radicals and telling the tale of govern other words, the American system is absolutely ment spying-the COINTELPRO program powerless to prevent a Rockefeller from spend and other surveillance activities of the Fed ing $4 million in family money to elect him eral Bureau of Investigation, the Central In self governor . .. Does that make any sense? telligence Agency, and the Internal Revenue Does it make any constitutional sense? I think Service-Lewis compared them once again the American Constitution is not so simple with the climate that prevailed during World minded . . . rOlf course money is a lot more War I and the McCarthy era. "What lessons than 'speech.' We know that money talks; but may the country have learned from the way that is the problem, not the answer." When, in questions of free speech and dissent were han 2000, the Court upheld a Missouri law limiting dled in the I 970s?" he asked rhetorically, and contributions to candidates in state elections, answered, "One evident lesson is that a strong he wrote, 'The Supreme Court is aware ofreal society can allow critical speech in times of ities now. It is not in a First Amendment ivory stress." Noting that Presidents Johnson and tower, indifferent to the consequences ofabso Nixon had told aides that critics of the war lutism." Speech, Lewis declared, was viewed in Vietnam were being supported from abroad, by Frankfurter, as by Jefferson and Madison, as he drew the obvious lesson for the 1980s and "a social necessity-a way of informing pub beyond. 38 lic decisions in a democracy and ofpreventing Each major speech issue that arose dur despotic government," not as a license for John ing the column's life was explained . In the D. Rockefeller to spend "$2 million of his own JOURNALIST HiSTORIAN 203 [money] to become Governor ofWest Virginia; language he employed to describe it melded H. John Heinz 3d, $2.2 million to be Senator religion and history with a sense ofa dynamic from Pennsylvania.,>40 that was constantly in the process of It was his very insistence on the social itself: utility of speech that led him to wonder aloud It is our rock and our the whether there ought to be limits on civil religion of a society that has no that was destructive, however fervent an ad state church. It is a unifying symbol mirer he was of the decisions in Skokie and as powerful in our diverse Republic Brandenburg. He reflected on the way the as the queen in a monarchy. It is his Oklahoma City "has made us think tory: roots for a with little and how to deal sense of the past. For a restless peo with it." He was well aware that "few other so ple, it is the prime source of stability, cieties, even the most democratic, would per of certainty.42 mit such murderous talk. We do, and we should not change, but we ought to worry about it." Within the the Bill of Rights The reason was that "[a]nyone who thinks such was central. Its enactment was "an a,,.'Y1W>l1 words have had no effect is of polit of political belief" by a "people ical history." He worried about "anti-abortion gling for trying against the odds to fanatics" who that abortion is murder create a nation," who nonetheless refused to but eschewed responsibility when doctors were the Constitution "unless it was amended killed, or the way a Rush Limbaugh labeled to protect individuals from official power." feminists "feminazis." "In a climate of calcu And they were correct; the Bill of Rights has lated hate for The " he "how can "played so a part in [the] survival" of the we to have the civil discourse that is the U.S. political system. To write about that sys mechanism ofMadison ian democracy?" As he tem was to write about rights, for "more than had every reason to know, "[ w lords matter.,>41 any other society we have a rights culture. Prick an American, and he reaches for his constitu tional rights.'>43 Conclusion And the Supreme Court was crucial to the Anthony Lewis's columns were those ofajour survival of a meaningful Bill of "The an historian, and an advocate. They Gideon case shows us that the rights listed in reflected an integrity of both and the American Constitution in such "IJ"''''';U"-' the writer's craft. He was neither cynical equality, freedom-are not nor although critical, he was neither self-executing. They have to be fought for in ,,44 whiney nor unfair; he was unfailingly respect every gelt1er'an,OI ful of his readers and, almost of the Is it naive to assert that Lewis was no less about whom he wrote. The proverbial a historian for his participation in that fight? Martian could do worse in its first few days He saw the Supreme Court as an ally: on Earth than read through Lewis's columns [T]his is a better country because the (of which the 300 on civil liberties are Court has condemned racial only a small in order to discrimination, protected privacy and what happened to U.S. social and public said that legislative elections must policy in the last few decades of the twentieth follow the rule of one person, one century. vote. We are glad that the Court, in Lewis tried to teach the importance of the such bold decisions, interpreted the Constitution, which he credited with contin Constitution to protect in to make the United States possible. The dividualliberty.45 204 JOURNAL OF SUPREME COURT HISTORY In The New York Times columns he wrote from 1969 to 1991, lewis tried to educate the pub lic about the importance of the Constitution, espe cially the Bill of Rights, and to make Americans think about moral issues. This 19705 cartoon from The New Yorker pokes fun "J think TIl be wicked today andskip Anthony Lewis. " at the column's educa tional benefits. "Without constraints on government, and too, "made the rest of us think the effective enforcement of those constraints about moral issues." In his final column, he by judges," he wrote on the said that "In the end I believe that faith in rea- of the Bill of HI am convinced that But it will not auto- the Framers' in Freedom under law is hard work. If would long ago have failed... Without the mlers cannot be trusted with arbitrary power, hand of law, America might have it is up to citizens to raise their voices at been shattered many times by sectarian con ,,47 flict. Without the offree speech and his job a free press, it would not be the extraordinari Iy his voice. He utilized open it is. He knew that the Justices the events of the could be wrong. When thev wrestled with the should, question of the to he commented, them in a context that made history come alive and created a histor on such profound ical record for the futurc. At one he ex- risks. But on frustration at Bill Clinton's failure to the whole our courts, in the process lead the country and wrote, "Mr. Clinton has the Constitution, have failed as an educator. He has failed to done a fair job of to keep articulate the reasons Americans should this country stable and free. And the care about civil Iiberties: the reasons ofhistory have made the rest of us think and of our vaJues."48 about moral issues46 Lewis did not make that mistakc, THE JOURNALIST AS HISTORIAN 205 'My thanks to Danielle Tarantolo and Aidan 9Mirac!e: "Gideon: An Epitaph," Feb. 12, 1972. New cir Smith for their assistance in sorting cumstances: "Spirit of Good Will," Jan. 3, 1985. Change: the hundreds ofcolumns Lewis over "An Ingenious Structure," New York Times Magazine, Sept. 13. 1987. Becoming: "Freedom to Disagree," Dec. more than three to Jill Norgren and 31,1987. Danielle TarantoJo for their fine editorial ad- IOBrennan: see, "Robust and Uninhibited," Oct. 18, and to Lewis's staff for 1976; "Bowing to Racism," Apr. 28, 1987; "Mr. Justice ing me with Brerman," July 24, 1990. II "An Ingenious Stnlcture, New York Times },;fagaz;ne, ENDNOTES Sept. 13, 1987. 12Had never known: "The System Worked," May 17, 1979. I Author'S telephone interview with Anthony Lewis, Decision in Brown: "A Time to Celebrate," May 13, 1974. October 15,2002 (hereafter Interview). Last column: '"1mposmg on Them a Badge of Inferior 2lntervlew. Lewis received a B.·A. from Harvard Univer ity, ", Jan. 22, 2000. sity in 1948. He his first Pulitzer Prize in 1955 13"Of Justices and Their Presidents," Herald Tribune, Oct. for a series ofarticles in the Washington Daily News about 25-26, 1969. Alexander Holmes, 396 U.S. 19 (1969). the dismissal ofa Navy employee as a security risk. Lewis or Hostile?," referring to Daniel then moved to The New York Times and spent a year in Patrick Moynihan, The Negro Family: The Case for Na its Washington bureau. After a year's study as a Nieman tional Action (US. Department of Labor, 1965). The re Fellow at the Harvard Law School (1956-1957), he be port was controversial in part because of its portrait of gan covering the Supreme Court for the Times, and was African-American families as dysfunctional and in part awarded his second Pulitzer Prize in 1963 for that report because its call for benign neglect was interpreted by some ing. He became chief of the Times' London Bureau in reflecting a hostility to government policies designed to 1964. further racial equality. As indicated above, Lewis appeared 3 Romantic: "Reading The Text," Aug. 3, 1990. Court and to share that assessment. history: "The Court: Rehnquist," June 23, 1986. All arti IS"The Legality ofRacial Quotas," Mar. 1974. De Funis cles cited are from The New York Times unless otherwise v. Odegaard, 416 US. 312 (1974). indicated. of the Unrversity of Cali/omia v. Bakke, 438 4 Powerless: "What Is at Stake," Sept. IJ, 1987. Power U.S. 265 (1978). Historical reasons and existence of two rather than principle: "Guardians of Liberty," Feb. 27, nations: "The Bakke Brief," Sept. 8, 1977. Troubled by 1972. Passing majorities: "Tyranny of a Majority," June quotas and construction industry: "The Stakes in Bakke." lJ, 1977. Frankfurter: "Hail the State!," July 9,1984. Amicus brief: White Enclave?," Feb. 1977. SStatist: see, e.g., "Hail the State l ," July 9,1984; "A Royal 17Various opinions: "A Solomonic Decision," June 29, ist Court," Sept. 9, 1991; "How Freedom Died," Nov. 22, 1978. Internal politics: "In the Storm Center," July 3, 1991; alf Madison Were Here," Dec. 13, 1991; "Court 1978. Philosophical conflicts: "'Bakke' May Change a Lot Against Congress," May 7, 1992; "Whatever the King While Changing No Law," July 2, 1978. Wants," June , 1992. Wards Cove Packing Co. E Ato IS"A Time for Healing," Apr. 6,1989. Richmond v. Croson, nio, 490 US. 642 (1989). Unique contribution: "Supreme U.S. 469 (1989). Court: Does Anyone Care?," Mar. 9, 1970. Stable and 19Transition period: "No Rush to Judgment," Sept. 22, free: "Conscience and the Court," June 29, 1990. Stone: 1977. Reliance on Judges: "The Bakke Argument," Oct. "Tyranny of a Majority," June 13, 1977, referring to Jus 13, 1977. tice Stone's opinion in U.S. v. Caroielle Products Co., 304 2o"Whiter Than White," May 23, 1997; see also "Violins US. 144 (1938). in the Wings," Nov. 28,1997. Hopwood E Siale oj'Texas, 6Portrait of a Decade: The Second American Revolu 78 F.3d 932 (5th Cir.), eert. denied, 518 U.s. 1033 (1996). tion (Random House, 1964); Make No Law: The Sul 21 "Zealotry Gone Mad," Dec. 17, 1990. livan Case and the First Amendment (Random House, 22"Who Is George Bush?," Oct. 26, 1990. Griggs v. Duke 1991). The book for which is best known, however, is Power Co., 401 424 (1971). Wards Packing Co. Gideon's Trumpet (Random House, 1964). v. A/onio, 490 U.S. 642 (1989). Most divisive: "Politics 7Racial equality: e.g., "Neglect-Benign or Hostile?" and Decency," Apr. 15, 1991. 200 years: "Handcuffs on Mar. 2,1970; "Hail and Farewell," Dec. 15,2001; and the learning," Mar. 22, 1996. columns noted below. Brown v. Board oj'Educalion, 347 23Bork: "Question of Judgment," Sept. 27, 1987; "The U.S. 483 (1954). The ABC series was called "Separate But Larger Message," Oct. 1987. Rehnquist: "The Court: " In tears: '''Seeds of Race Hate,'" Apr. 8, 1991. Rehnquist," June 23, 1986; "Reagan and the Court," Oct. v. Ferguson, 163 U. 537 (1896); Harlan al 9, 1980. Scalia: "The Court: Scalia," June 1986. Em '''Seeds of Race Hate,'" Apr. 8, 1991. pathy gene: "Politics and Decency," Apr. 15, 1991. 206 JOURNAL OF SUPREME COURT HISTORY It's Only The Law," Jan, 21, 1982, and Abrams United States, 250 US, 616, 624 (1919), 25Summarized briefly: "Out of the Pickle," Feb, 8, 1982, Jefferson: "What Is America?," June 29, 1989, Flag deci Cases moot: "School Tax Rumbles," Feb, 15, 1982, sions: "A Glorious Fourth," July 3, 1990, the Buck," Oct. 14, 1982, 38"Dohrn Got Probation, But Wlla! of the Others'?," Jan, 27'The Court Says No," May 26, 1983, Bob Jones Uni18,1981. versity v, United States, 461 US, 574 (1983), 39Censorship: "How Freedom Died," Nov, 22, 1991, See 28Derailed; sorry deal: "Down the River," July 5, 1996, also "Paying the Piper," May 31, 1991, Lewis applauded Understatement: "Winners and Losers," Oct. 28, 1991, both gender C(lliality and reproductive freedom, while both 29"The Party of Lincoln," Nov, 7, 1985, respectfuHy recognizing the strong feelings of those op 30 Interview, posed to abOItio[J and condemning some of the actions of Blackmun: 'The Bladunun Legacy," Apr, 8, 1994, anti abortionists who did not respect the feelings of those LeWIS: Interview, on the other side, e,g., "A Singular Issue," Nov, 16, 32 Interview, 1978; "The Righteous Fanatics," Sept. 1984; "The Cost 33 "Sraving Offlhe Silencers," York Times Magazine, of Fanaticism," Mar, 16, 1990, In his final column, he re, Dec. I, 1991, citing Debs v, United Stales, 249 US, 211 ferred to "the move toward equality for women" as the (1919); Abrams v, United Siales, 250 U.S, 616, 624 (1919); second "unfinished but extraordinary" revolution to have Whitney v, California, US, 357, 372 (1927); United taken place in his lifetime, the first being the move toward Siaies Schwimmer, 279 US, 644, 653 (1929), ending racial discrimination, "Hail and Farewell," Deco Silencers," citing New York Times Co, 15,2001, Political correctness: "Liberty and Hypocrisy," Sullivan, 376 US, 254 (1964); Bond v, 385 US, 116 May27, 1991. See also 'Time to Grow Up,"OCL 14, 1994, (1966); Brandenburg v, Ohio, 395 US, 444 (1969); Collin Internet: "Fear of Freedom," Dec, 25, 19950 v. Smith, 447 F. Supp, 676 (N,D, [II. 1978),578 E2d 1197 4DBuckley: "The Court on Politics," Feb, 5, 1976, Buckley (7th Cir. 1978); Hustler Magazine, IIIC, VO Jerry Falwell, v. Valeo, 424 U.s, 1 (1976), See also "Money and Politics," 485 US, 46 (1988); Texas Vo Johnson, 49 I USo 397 (1989); Nov, 8, 1976, Ivory tower: "The Court Sees Reality," Jan, United Stales v. Eichman, 496 US, 310 (1990); Dennis v, 29, 2000, discussing Nixon v, Shrink Missouri Govern United Slates. 341 US 494 (1951), mel1t PAC, 528 US, (2000), Rockefeller and Heinz: Off the Silencers," citing Snepp v, United "Free Speech: Never Total, Once Again Expanding," Feb, Slates, 444 US, 507 (1980); New York Times Co, v, United 8, 1976; "Money and Politics," Nov, 8, 1976. Stales, 403 US, 13 (1971); Rust v, Sullivan, 500 US, 173 4J"Words Matter," May 5, 1995. (1991), 42"An Ingenious Structure," New York Times Magazine, Brandeis, Harlan: see, e,g., .. 'Thought That Sept. I 1987. We Hate,'" Apr, 13, 1978; "Free Speech and Provoca 43"lf Madison Were Here," Dec, 13, 199 L As indicated tion Can Be Hard to Separate," Nov, I I, 1979; "Free above, Lewis was well aware of the Constitution's lapses dom To Disagree," Dec, 31, 1987, drawing on Richard in the areas of race and gender Polen berg, Fighting Faiths: The Abrams Case, the 44"One Small Step," Nov, 15, 1984, referring to Gideon 110 Supreme Court, and Free Speech (Viking, 1987); "Bork Wainwright, 372 US, 335 (1963), On Free Speech," Sept. 3, 1987; "A Glorious Fourth," 4s'The Larger Message," Oct 1987, July 3, 1990; "The Poet Judge, Mar. 8, 1991. Near v, society: "If Madison Were Here," Moml Issues: Minnesota, 283 U.S, 697 (1931), Our system: "Freedom "Conscience and the Court," June 29, 1990, referring to of the Press," June 7, 1981, Cruzan v, Director, 497 US, 261 ( 1990), 37Holmes: "Freedom To Disagree," Dec, 31, 1987, dis 47"Hail and Farewell," Dec, 15,2001. cussing Uniled Slates v, Schenck, 249 U.S, 47 (1919) 48"Srand Up For Liberty," Apr. 15, 1996, The Judicial Bookshelf D. GRIER STEPHENSON, JR. "In law, also, men make a difference,,,j counseled Felix Frankfurter the year before his Court. Frankfurter one ofthe three critical components the text of the Constitution itself and the cases that pose various questions for decision are the women and men who answer those questions. Those answers, as Frankfurter are invariably influenced by the values Justices with them to the Bench. Yet he was no newfound truth, but an awareness that had been apparent for a long time. "Impressed with a conviction that the true administration is the firmest of good government," President General Edmund Randolph in 1789, "I have considered the first as essential to the happiness of our country and the stability of its political "To be sure, the Court's role in the political system was unclear, but Washington realized the Court have in the young Republic. This required, he told Randolph, "the selection of the fittest characters to expound the laws and ,,2 And as he filled the six seats had authorized for the the first President made sure that each nominee was a strong m".rw'rpr of the new Constitution. Yet a President's influence on the Court as it limits the influence of the 'H.I,,-,V'''''''UJ< and a Justice's influence on the law are in President, yet creates an opportunity for the a function of judicial tenure: an same or a later President to try to length ofservice. A Bench with stable or nearly the Bench. This commonsense observation ap stable mpmt',."·,, pears in even relief when one compares multiplies the its members col the Court's most recent decade with its first. lectively have "to say what the law and On April 6, 1994, Justice Harry A. the of the Presidents who Blackmun announced his forthcoming retire put them there~even when turn ment. Although Justices since 1789 had out to be in one way or another. served longer than his twenty-four years, at In contrast, a brief tenure cuts short a Jus age 85 only two were older at the time they tice's opportunity to "make a left the Court.4 On May 13, President Bill 208 JOURNAL OF SUPREME COURT HISTORY ~h-~~ ~·" 4..·/I.R The only period of stability that exceeds the past decade's, in which there has been no new appointment to the Court since 1994, was the eleven-year stretch between the arrival of Justice Joseph Story (left) on February 3, 1812 and the death of Justice Brockholst Livingston (right) on March 18, 1823. Clinton revealed his choice for Blackmun's Stewart's retirement on July 3, 1981 (followed seat: Boston's Judge Stephen Gerald Breyer, by Justice Sandra Day O'Connor's swearing 55, of the U.S . Court of Appeals for the First in on September 25, 1981). Indeed, over the Circuit. Hearings in the Senate convened on whole sweep of Supreme Court history, the July 12 and lasted four days, with confirma only period of stability exceeding the past tion, 87-9, following on July 29. On August 3, decade's is the eleven-year stretch between Jus the Chief Justice administered both the consti tice Joseph Story's arrival on February 3, 1812 tutional and judicial oaths to the 108 1h Justice at and Justice Hemy Brockholst Livingston's the Rehnquists ' vacation home in Greensboro, death on March 18, 1823 . Vermont. This stability stands in sharp contrast to As of this writing, a few months shy of the instability of the Court's first decade. Af a decade later, Justice Breyer still retains the ter President Washington initially filled the title as the most junior member of a Bench six seats,5 he made five additional appoint that was configured by five Presidents. The ments before the end of his second term in years 1994-2004 thus constitute a unique and March 1797.6 Prior to his appointment of remarkable continuity in the history of the ChiefJustice John Marshall in 180 I, President Supreme Court. Since 1869, when Congress John Adams made two appointments. Thus, set the Court's roster at the current comple the years between the appointment of the first ment of nine, there has been no other period of six and Marshall's arrival, exclusive, witnessed similar length without the departure of a Jus a total of seven changes in Court person tice. The next longest period without change nel. Longevity of service was in short supply. fell between Justice John Paul Stevens's ar Only four Justices named during this period rival on December 19, 1975, and Justice Potter (William Cushing, William Paterson, Samuel THE JUDICIAL BOOKSHELF 209 and Bushrod Washington) served the the Court's equivalent of at least two terms composition since 1994, the years 1986-1994 beyond the administrations of the Presidents witnessed abundant turnover, and, in some in who selected them. stances, turmoil. Within those years were Alongside this door, the retirements ofChiefJustice Warren moreover, one sees just how close the Court (1986) and Justices Lewis F. Powell (1987), came to a very different Bench in another William J. Brennan (1990), Thurgood Marshall way. It is often as Frankfurter did (1991), and Byron White (1993), as well as in 1938,1 that constitutional cases in the first Blackmun. Their departures opened the way of the nineteenth century would hardly for Justice WiHiam H. have been decided the same way had Chief ment as Chief Justice ( and the arrivals Justice Ellsworth's resignation in October 1800 of Justices Antonin Scalia been postponed until after Thomas Jefferson M. (I David H. Souter (1990), became President. The third President Clarence Thomas (199 and Ruth Bader have picked "iJ'~""'-l (I as well as by 180 I already in his sixth year as a judge within no more than years, three Pres Court of Appeals; Jefferson idents were able to remake two-thirds of the most would not have selectcd his Bench. cousin John Marshall. 8 Yet amid all the j udi Justice Powell's retirement in cial instability of the decade, Ellsworth's de- gelrlerate:d a maelstrom after Presi in the fall of 1800 would have been dent Ronald nominated Robert even more significant had Jefferson .. ",ua};,-u Bork of the U.S. Court to capture the presidency in 1796, thus get- trict ofColumbia Circuit to replace him. Given a head start on the "Revolution of 1800. the hot-button constitutional that Alter all, Adams won with a margin of only in the balance and the nom three electoral votes, in a contest that proved trail" that revealed his far closer than either Adams or Jefferson had views about and opponents in terms of its potential alike stood their ground on the PVY'Pf't<>t. effect on the Court, the often over that, "in law, also, men make a difference."12 looked presidential election of 1796 stands Bork's became the fifth Supreme Court out as one of the most nomination in the twentieth to be re- beens in American judicial history. by the Senate, under circumstances that The contrasting experience with an un were unprecedented. The confirmation battle usually st:1.ble Bench in the last decade is an was even more vitriolic than the one Louis obvious reminder that retirements in the near Brandeis had in 1916 after Presi term are practically inevitable. That loom dent Woodrow Wilson named him to replace nr{,<:",prt makes publication of Supreme Justice Joseph R. Lamar. Never before had Court Justices in the Post-Bork I all the there been such grassroots more timely. Authored by Central Michigan with television to defeat a judicial nomi political scientist Joyce Baugh, the before the Senate book revisits the nation's last with Judiciary Committee were both exhaustive a train of Court retire and lasting a record-setting twelve ments, nominations, and confirmation pro- with Bork testifying and ques The is to see what lessons can tioned on five of them. Finally, when Bork's be learned and to suggest what can be exlJected opponents prevailed on October 1987, the for the future. 42-58 vote against him was the most lopsided 210 JOURNAL OF SUPREME COURT HISTORY Baugh's study. As the latest book-length ad dition to the literature on the confirmation process,J4 her benefits from the perspec tive that time and distance from events can lend. At the outset, she the contention that the Bork nomination was unusual because it was controversial and became politicized. She begins with John Maltese's thesis that the nomination was unusual because of the ways in which the political dimension manifested itself. "[W]hat is different about today's ap pointment process," he wrote in 1995, "is not its but the range of the process and the techniques of tion that use." confirnlation battles are no government affairs between the president and the are public affairs, open to a broad range of players. overt lobby- public opinion polls, Judge Robert Bork (above) was the fifth Supreme Court nominee in the twentieth century to be rejected by the Senate. His confirmation battle was even more have all become a routine vitriolic than the one louis D. Brandeis underwent in of the processJ5 1916. then presents two for test Senate rejection of a Suoreme Court nominee ing in the post-Bork era that began after Jus in history. tice confirmation on 3, 16 In the wake of the Bork debacle, some 1988. The first deals with the to Court observers claimed "that the Bork which subsequent nominations have indeed episode [had] changed the process forever."13 been "public affairs"; the second addresses the The process had seemingly become politicized kind ofnominees Presidents since have to an unparalleled As a in selected. vacancies in the future, Presidents would pre Court nominations in sumably be faced with two equally the future would be marked by a able scenarios. In situations where Presidents increase in both media selected ideological soulmates, there would be attention and interest grou p participa back to a time when rancorous pro tion. Second,. . . would be were the rare rather than more to appoint either "stealth" instead, confirmation nominees-that individuals who would remain overtly and permanently con ideological frontational. Alternatively, Presidents would have to otherwise desirable nominees versial and move circuitously in selecting dicial moderates who would be less to avoid the tumult of the first. likely to evoke serious opposition The effects of the Bork affair on from those on either side of the po~ Court form the Iitical and ideological ~-~~.....- 17 JUDICIAL BOOKSH 211 The book unfolds through six Attention in the media and among civil The first is the shortest and is a condensed re focused on Thomas both view ofthe in the Senate over the Bork because ofthe person he would and be nomination. The next four are article cause his views on some issues were known: length studies of the appointments of Justices many believed him to be the ideological mirror and Breyer, com Marshall. With Souter, President bined with an overview ofthe constitutionalju risprudence each has thus far displayed on the someone whose positions Bench. These four are the true meat of unknown; with he did the book. Except for Thomas, who has already the Those circumstances were then been the subject of several books,18 Baugh's confoundcd by the accusation ofsexual harass are among the most detailed and thoughlfu I ment that drew the nominee back to the Senate studies of these Justices in the literature. The Committee for a second round of final chapter and compares the find hearings and led to a media circus. The ma ings of the four. jor networks tend not to provide live coverage Many who followed closely the four ap nominees-"I don't see pointments after 1988 will agree with Baugh's the sound bites that allow for coverage,,,21 ex assessment that the that were sup plained one CBS news producer--but did posed to have been onto the confir in Thomas's case. What followed the nomina mation process by the Bork affair have been tion's referral back to committee was a televi overstated. No doubt all will agree that "each sion that left few satisfied: twenty nomination is a unique event, with the out marked come determined by factors to that and counter nomination."19 and equally bitter denials and counter The Souter and Thomas nominations denials. Likened by some to a morality play or a commanded more attention by the news me the acrimonious drew dia than did the and nomina a viewing audience than the National tions. In view, the emphasis on Souter League and American playoffs going stemmed from two facts. he was on at the same time. The Senate's vote to con a Justice who for some time had been the on October 15, 1991 was one intellectual leader of the liberal wing on the second because Souter had been Court nominee. Only the C'",r'A",rL1'~, ~"''''''''> on the US. Court of for only a few of Matthews by a vote of 24-23 in months prior to his nomination to the High 1881 a of nega little was known about his views on fed tive votes. eral constitutional questions. journalists The nomination received much ofthe time between the announce more attention than believes, ment of his nomination and commencement of both because hers was President Bill Clinton's the to learn as much about him first and ideologically, more was at as possible. The dearth of information even stake. She would replace Justice Byron led Senator Howell Heflin of Alabama to White who had taken a more conservative posi Souter as the "stealth be tion on such as abortion and church ing the first to apply "stealth" to a state issues. Court nominee. On national television, Justice views, to the extent that they aligned with Thurgood Marshall "Never heard his would have little change on ofhim."2Q the balance within the Court. But for Baugh, 212 JOURNAL OF SUPREME COURT HISTORY The Senate's 52-48 vote to confirm Clarence Thomas (pictured at left being sworn in by Justice White in 1991) was one of the closest ever for a successful Supreme Court nominee. Stanley Mathews (right) was confirmed 24-23 in 1881 on the second try-an even closer call. another factor at play in dampening media into any equation as well. interest in both situations was the fact that the broadcast television networks that, Ginsburg and were widely until most Americans watched for as "moderate" and pragmatic liberals, not news now have serious rivals in cable news 22 channels, of which there are at least five. The Thus, the nomina latter feature non-stop news coverage where tions have consisted ofone relatively unknown the news is not from day to day but a one nominee to be ideolog ravenous one of hour hour. That conservative at the time of his nomina coupled with the plethora of talk-radio pro tion, and two who were liberal but not grams, complicates the job to so. And, due to varying determine in advance how a nomination will each received different quantities ofmedia and "play" in the media. There are simply more interest group attention. advice to any video options available now than when Bork President submitting a Court nom and Thomas went before the Senate. ination in the future is to avoid a candidate the vast possibilities ofthe who appears to be par the and of ticularly if that individual would tilt the vot news sources, are more now than in balance on the Bench in one direction the 1990s.24 Third, during the past three or the other. In such the odds for years the filibuster has become a formidable confirmation go down sharply. safest weapon in deciding the fate of judicial nomi seems to be the one adopted by Pres nees in ways not seen since 1968. It was then Lr<'cn,>f't,>ti judi that Justice Abe Fortas asked that his name cial moderates."23 be withdrawn after a filibuster blocked an up That may be so, but three factors that or down vote on his nomination as Chief Jus have intensified since 1994 should be factored tice. No President should now or in the future THE JUDICIAL BOOKSH 213 underestimate the influence ofthese fac audience as well. This goal distin tors, or in combination, on confirmation the Supreme Court Handbooks series politics. from two others. The tomes published so far When Frankfurter made his observation in in the Holmes Devise Supreme 938 about the influence ofparticular individ Court ofthe United Stales are truly treasures uals, as opposed to others, on the development for the expert but are hardly written for the ofAmerican constitutional law, he cited several novice and pose a navigational chalJenge to in addition to the obvious one about the 28 The more conceived Spencer Roane and John Marshall. "The evo series on the Chief of the United lution of finance capital in the United States, States is more accessible- and therefore ofAmerican after the Re and more modest in scope-than the H.olmes construction would hardly have been Devise and seems more f'nltTInTPr,pn the same if the views of men like Mr. Justice than the Handbooks series in terms ofthe num Miller and Mr. Justice Harlan had dominated ber of issues addressed. The latter, in the decisions of the Court from the Civil War contrast, features a focus on consti to Theodore Roosevelt's administration."25 tutional issues and institutional matters, plus a That era includes most of the [w,~nrv-rwo greater emphasis on individuals, context, and years between 1888 and 1910 when Melville Weston Fuller was Chief Justice-the Fuller's Chief Justiceship ranks third in chronicled in The Fuller COUl't26 by James length, behind John Marshall's thirty-four W. Ely, Jr., of Vanderbilt University School years and Roger B. twenty-eight. At of Law. is one of the latest volumes to its Fuller's most senior appear in the Court Handbooks se were Samuel F. Miller and 1. Field, ries that is published by ABC-CLIO under both appointed Lincoln, and Joseph P. Peter Renstrom's editorship. Each of and John Marshall Harlan, the series entries to date has examined a by Grant and Hayes, Court period as demarcated by the succession of Fuller's death in Maine on 4, 1910, ofChief Justices, 27 with each volume adhering the Fuller Court included Joseph McKenna, to a common format of two parts. who would sit until I and Oliver Wendell Part one consists of four substantive Jr., who retired in 1932. the ju ters that examine: (I) the particular Court in dicial tenures of Fuller Court Justices spanned the context of its including the circum a remarkable seventy years, from Lincoln's stances surrounding the appointment of each first term until the last year of the Hoover Justice who served with that presidency. the individual Justices in terms of their back The Fuller Court was remarkable in an- grounds and thought; the decisions rendered that two years witnessed f'h"n,,,'c the legacy and impact of that Court. magnitude in the nation. By 19 there was Part two, which in The Fuller COUl't consumes no doubt that the United States had developed about one-third of the pages, includes a vari a truly national economy, tied by the of reference materials and documents that railroads, and relate to personalities, policies, and events ad become a power in international affairs. From dressed in part one. the I 890s onward, Congress to exercise While of obvious value to the academic its commerce and powers in new ways community and the The and to a extent than ever before. State Fuller Court, like other books in the series, regulatory legislation continued to swell, con is intended to reach a wider and more general a trend from the mid-1800s. 214 JOURNAL OF SUPREME COURT HISTORY What was the Fuller Court's response to cases within its fourteen years, and the Fuller these The conventional view Bench did so in fourteen cases in its has sided with Populist and Progressive (and two years. But viewed qualitatively, there is later New critics who have taken the a difference. Even the Waite Court's hos Fuller Bench to the scholarly woodshed for to most Reconstruction-era a In their pales the Fuller Court's der Fuller was an decisions in cases such as Pollock v, Farmers' corporate hostile to ordinary peo Loan & Trust CO.,33 which disallowed the in ple. In contrast, himself more come tax that Congress had enacted in I closely with revisionists who have offered thus literally calling into question the power a more balanced account. He definitely re to govern. Tn this sense Pollock was on a jects Owen M. Fiss's summation from Fiss's par with the Chase Court's ruling in Holmes Devise volume: all accounts, 34 the first round in the the Court over which Melville Weston Fuller that, for a short restricted presided ... ranks among the worst.,,30 Instead, choice of means to finance a war, Ely concludes that the Fuller Bench "built upon Or at least Justice Harlan seemed to think so in a constitutional tradition that a terms of the risk that the 1895 decision economic 0[ for the nation: it "strikes at the very founda omJP!'1nmpnt " The Bench tions of national authority, in that it denies "represented not a break with the past to thc general government a power which but a flowering of time-honored themes of vital to the very existence constitutionalism. I of the Union in a national The operative word in the previous sen emergency .. , ,,,35 tence is "flowering." to the tradi Also among the Fuller Court's fourteen tional, prerevisionist account, the Fuller Court was Adair v. United States,36 which was far less hesitant to invalidate legislation struck down the Erdman Act of 1898. That than was the Waite Court that preceded it law was the federal nmn>Yntnpnt first (1874-1 On the icant to use its commerce power on a with respect to acts of are actu broad scale in support of the rights of labor. ally not dissimilar. The Waite Bench invali The law orohibited yellow-dog contracts, dated all or part of national statutes in eight which workers not to join unions as a ",Tlll,!",~~,~L'U~ ,~~A",,:A"pR~I"'J'l, ______~"'~_____ M'DOUGALL'S STUDY OF THE UNITED STATts SUl'l{EME COURT IN SESSION, James W. Ely's new book, The Fuller Court (caricatured above in 1897), is written to appeal beyond scholarly circles to reach a general audience. THE JUDICIAL BOOKSHELF 215 condition of employment, as well as the ference by the O()'I.IPrr1m,>n The or of for union activ ofthis new right were vast and were soon real ity. Not counted among the fourteen because ized in Lochner v. Ne-w when Fuller and it emasculated but did not invalidate a stahlte four other members of his Court struck down was United States v. E. C. 37 some a New York statute limiting the hours of labor times called the Trust Case. Relying in bakeries. Justice Rufus Peckham's opinion on an exceedingly narrow interpretation of for the majority asserted that it would be the the commerce power, a majority of five con Court's task to ascertain what restrictions on fined the constitutionally 'l\""',vLI'U The decision by Amish families in New Glarus, Wisconsin to withdraw their children from public school and establish a school system of their own in 1968 is the subject of historian Shawn Francis Peters' new book, The Yoder Case. THE JUDICIAL BOOKSHELF 217 Peters, the superintendent asked the families to to do something that their faith forbids or for delay their departures until after the start of the bids them from doing something that their faith school year, when enrollment figures were re requires. The argument under the second inter ported toMadison. "The Amish, however, were pretation is that faith should trump law unless too scrupulous to participate in this bit oftrick the government has a compelling interest in ery. They balked, and the local public school overriding the religious interest. system lost almost $20,000 in state funding.,,5o This conflict lay at the heart ofthe Court's . Local authorities then "retaliated" by having first construction of the Free Exercise Clause Jonas Yoder, Wallace Miller, and Adin Yutzy in Reynolds v. United States,55 which upheld charged with violating a Wisconsin law, first application of an antipolygamy statute to a enacted in 1889, that, after 1903 amendments, Mormon in the Utah Territory whose reli mandated school attendance until age 16 51 gion included the practice of polygamy. Chief Yet defending themselves was not an easy Justice Waite emphasized the sovereignty of decision for the fathers, who, like most Amish, the individual over religious bel ief but the believed that "going to law" is at odds with sovereignty of the state over conduct, a dis the pacifist tenets of their faith. Nonethe tinction that prevailed for over eight decades. less, they placed their dispute with local of "Congress was deprived of all legislative ficials in the hands of a Pennsylvania attor power over mere opinion, but was left free to ney named William Bentley Ball who had reach actions which were in violation of social been attracted to their case. A name part duties, or subversive of good order.,,56 ner in a law firm in Harrisburg, a Roman The first occasion in which the Supreme Catholic, and an experienced advocate in re Court, resting its decision squarely on the ligious freedom cases,52 Ball shepherded their Free Exercise Clause, ordered a faith-based ex case through the Wisconsin courts, finally emption to an otherwise valid policy came in achieving a well-nigh-unanimous victory in Sherbert v. Verner .57 South Carolina law de the Supreme Court. 53 The victory proved to be nied unemployment compensation to someone a mixed blessing, however, creating tensions available for work who refused to accept a job. among a people who shun notoriety and possi Adell Sherbert, a Seventh-Day Adventist, re bly contributing to the decline ofthe Amish set fused to work on Saturday, lost her job because tlement at New Glarus. "For me," commented of her refusal, but was otherwise available for Mr. Yoder at one point in the litigation, "I work. No one claimed that South Carolina had wish it would be somebody else's name on this targeted members of this particular church for [casej.,,54 persecution, but as applied to her, the policy Finally, at a greater level of generality, required her to choose between a job and re but central to the outcome of the case, Peters ligious disobedience, on the one hand, and no surveys the Supreme Court's checkered pat compensation and religious obedience, on the tern of decisions in free-exercise cases. These other. A majority of the Justices found the law cases typically pose a question that has never unconstitutional as applied to Adell Sherbert, been definitively resolved: does the Free Ex because it unduly burdened her faith . And it ercise Clause embody merely a nondiscrim was Sherbert that provided the doctrinal un ination principle that protects believers from derpinnings for Yoder. hostile legislation because of their religion, or Yoder, as applied by lower courts, in turn does it also elevate religious practice to a pre "left an indelible mark on such areas as par ferred status? The first position encompasses ents' rights, home schooling, and state reg a narrow protection; and the second position ulation of religious schools" but, Peters ex envisions a far broader one, calling for a faith plains, "the core ofits constitutional legacy did based exemption when a law requires believers not prove to be especially durable.,,58 Indeed, 218 JOURNAL SUPREME COURT H free-exercise victories after Yoder were few. scientist Ken 1. Kersch. 64 Although Then, in I five Justices took a that aimed at readers who are relatively new to seemed to confine Sherbert and Yoder to their the Freedom of Speech should ap factual situations. Employment Divi to seasoned scholars as well because of sion v. Smith ruled two drug coun its fresh and references selors who were fired from their jobs after to key events and ideas over the past half- they a hallucinogen, as millennium. Novices and alike will ap of a ritual of the Native American Church.59 Kersch's on the political and officials had denied them intellectual movements and contexts that have ment compensation because their loss of em freedom of expression in the United ployment resulted from "misconduct." Under States65 state law, was a controlled With a purpose of the book be and its use was forbidden, even for ing "to underline that were not al purposes. Even the two ex-counselors ways as are today," Kersch acknowledges cited scientific and anthropological evidence that the "right to say and print 'whatever we that the sacramental use of peyote was an an likes' holds a cient practice and was not the Court concluded that when action based on re- belief runs afoul of a valid law a "special in the American eral application--even as here, the lit- heart" for many years did not mean that free had not been criminally dom of speech had a place in the heart latter prevails. Law trumped faith.GO of the federal Instead, for much of As Peters relates, to counter Smith our exception of Congress in 1993 passed the Religious Free the Sedition Act trials in U.S. circuit courts dom Restoration Act on between 1798 and 180067 "law and enforcement powers under Section the freedom of speech] were set 5 of the Fourteenth Amendment, the RFRA by state and local courts and even to restore Sherbert fully in situations in more by social norms, legislation, and the which laws of application, such as a political process."68 Contrast that state of school-attendance statute, conflicted with re- affairs with the America that readers know liberty. A battle over constitutional turf today: "What is and was underway. In City a/Boerne v. 61 the sible today is determined less Court ruled that ebb and flow of than by exceeded its rulings from unelected judges in the federal embodied the meaning of the Free Exercise courts." To be sure, the cases decide Clause62 have bubbled up from social controversies. But Freedom of speech barely engaged eI those cases are decided, not by prevailing so ther the Waite or Fuller courts, but the free- cial nonns, but by wielding constitu clause in the First Amendment63 has tional law. "Accordingly, now more than at been responsible for a stream of cases any other time in our history, the on the Court's docket for the last of permissible are defined six decades. That duality~near invisibility for Supreme Court.,,69 free sneech as a federal That much becomes apparent In ter three ("The Twentieth 70 which one recounts how the Supreme Court's involve- of the insights to be gleaned from Freedom ment with free has broadly of Speech Princeton political through two In the first stage, the THE JUDICIAL BOOKSHELF 219 The 1969 Brandenburg v. Ohio decision transformed the cleaNmd-p~esent-daru!er test and became the modern underpinning for freedom of speech. The case the avocation of racial strife during a Ku Klux Klan rally in violation of an Ohio criminal syndicalism statute. Court was consumed with application of one nificant qualification-all government restric or more "tests" that enjoyed favor at one tions on were forbidden. On this view, time or another and that took into account the threat posed by the was irrelevant. the threat that the posed. The second stage commenced roughly two such tests had em:er~~ed the c1ear-and after Rather than emphasizing test, which "the free speech tests of the past," the sec protection for speech, and the bad ond stage has reflected "a of tendency test, which was highly deferential cal legal distinctions.'>7J One ofthese categori to discretion. Each pm,pr,y"t1 from cal distinctions considers cases not post--World War I cases wartime so much from the perspective of the national security In the poses as from that of the Brandenburg v. 71 the clear-and-present that a law poses to those in legitimate test evolved into the incitement test. the overbreadth doctrine More permissive for than the c1ear may be when a law sweeps too test, the incitement test broadly, reaching not of the immediacy of related behavior that lawless action. Never commanding a proscribed but protected as welL Such of the Bench was an permis laws may also be struck down because sive approach advocated by a few Justices such have a "chilling" effect: at the margin, they may as Hugo Black. From this absolute approach, deter people from III that once was deemed to fall within the Constitution allows. For similar reasons, the purview of the First Amendment-a the Court may the vagueness doctrine. THE JUDICIAL BOOKSHELF 219 The 1969 Brandenburg v. Ohio decision transformed the ciear-and-present-danger test into the incitement test and became the modern underpinning for freedom of speech. The case involved the avocation of racial strife during a Ku Klux Klan rally in violation of an Ohio criminal syndicalism statute. Court was consumed with application of one nificant qualification- all government restric or more "tests" that enjoyed favor at one tions on speech were forbidden. 72 On this view, time or another and that took into account the threat posed by the speaker was irrelevant. the threat that the speaker posed. By 1925, The second stage commenced roughly two such tests had emerged: the clear-and after Brandenburg. Rather than emphasizing present-danger test, which promised greater "the free speech tests of the past," the sec judicial protection for speech, and the bad ond stage has reflected "a variety of categori tendency test, which was highly deferential cal legal distinctions.,,73 One ofthese categori to legislative discretion. Each emerged from cal distinctions considers free-speech cases not post- World War I cases involving wartime so much from the perspective of the danger national security legislation. Much later, in the speaker poses as from that of the danger Brandenburg v. Ohio/I the clear-and-present that a law poses to those engaged in legitimate danger test evolved into the incitement test. speech. For instance, the overbreadth doctrine More permissive for expression than the clear may be applicable when a law sweeps too and-present-danger test, the incitement test broadly, reaching not only speech or speech emphasized the premise of the immediacy of related behavior that might constitutionally be lawless action. Never commanding a major proscribed but protected speech as well. Such ity of the Bench was an extremely permis laws may also be struck down because they sive approach advocated by a few Justices such have a "chilling" effect: at the margin, they may as Hugo Black. From this absolute approach, deter people from engaging in expression that once expression was deemed to fall within the Constitution allows. For similar reasons, the purview of the First Amendment-a sig the Court may apply the vagueness doctrine. 220 JOURNAL OF SUPREME COURT HISTORY that individuals have fair tion, '" Such arc more upheld PlUllIUlLCU conduct A vague statute alternative channels of between and behav "np"k'pr 76 ior and therefore may chill causing a similar in dis to censor rhemseives,74 from conduct in situations n"r~T'\"{'t;'l" on whieh the Court or com of a on whether government has restricted the con tent of a speaker's message-that is, whether there will be no discriminates a certain that will continue to tax the col of view, If 80, the Court strict lective intellect and wisdom of the scrutiny. For the statute to Court But will there be in the way the ment must demonstrate a interest freedom The meander- in the restriction and demonstrate that the in- that the Court has followed Because ovcr the that there will. sorts of events and pressures ery such instance the regulation will be struck are that call into question the accus down, Ward v, Rock Azainst Racism, which tomed tests and man- the continual interaction use of the ""rat'''''c, .' And they nicians as a means to control volume at the in bandstand in Central Park, olTered a three fear"-none of which, one hastens to add, is in part test to determine whether a short supply "Politics, and in fact, viewpoint-neutral. First the at base, are forever Iiilked,,,n The links between polities, culture, not what is said. and individuals-those who "make a have been based on with any par difference"-are vividly in Great ticular message. government's interests American Judges, a stout contribution to ju in having the regulation must be unrelated to dieial that Middle Tennessee Uni the of any versity political scientist John R. Vile has I f a law passes the and edited. This two-volume set test, it may nonetheless adversely affect the will doubtless become a consulted flow and distribution of a message (the how), resource for anyone interested in the back even though the law does not a grounds and decisions of the women and lar message what), In such situations, the men--especially those on courts below the Court aoolies a lower standard of review, bal US. Court-who have achieved dis tinction, Few other collective works both span the whole course of American and en place, or manner of compass both the state and federal judiciaries. wrote Justice in Vile's introduction, which follows rowly tailored to serve the a foreword by Utah State his imate content-neutral interests but, . , it need torian Kermit L. Hall, addresses, among other not be the least restrictive or least intrusive the that almost any reader means of doing so." The standard "is satis would be sure to raise: how does one choose the fied 'so long as [the] regulation a judicial The identification process substantial government interest that would be that Vile used falls, as he aehieved less absent the ,,79 THE JUDICIAL BOOKSH 221 After compiling his own list of nominees from consensus developed a of sources, Vile sent surveys to 150 around a key group of judges." All seventy scholars, each of them to mark (I) those seven, marked Benjamin Cardozo persons on his list that they believed worthy of for inclusion. Ofthose among the 77 who sub inclusion in a book of greats; those whom mitted a of their deemed unworthy of inclusion; and (3) Hand's name most head of the list. Ultimately, 103 individuals ing. In were invited to made the cut; each of whom is the In rank as many as twenty-five judges "that they Vile's volumes ofa biographical essay of3,500 considered the most to 4,000 words. " Finally, each was given Who is among the 1037 Sixteen were Jus the opportunity to the names ofjudges tices on the U.S. Supreme Court.80 Of those whose names should have been included in the seven were ChiefJustices. Three (John but had not been. Ofthe150 who Clement Vile received responses from were federal judges whose seventy-seven, many ofwhom only nominations to the High Court failed in the a handful of judges on the initial list. Yet Vile Senate. such as Thomas Drummond In compiling his new book, Great American Judges, political scientist John R. Vile found that scholars consistently sug gested Benjamin Cardozo (right) for inclusion as a great judge. 222 JOURNAL OF SUPREME COU HISTORY and Learned Hand, were at various times ble ,,83 Those who consult Great "short lists" for the American Judges may decide for themselves never actually nominated. whether the chosen 103, having been deemed in the colonial or late great, have also the Adams test. period, thirty-six in the and the balance in the twen- Seventeen of the 103 were still THE SURVEYED IN THIS ARTICLE ARE LISTED some were in retirement. ALPHABETICALLY BY AUTHOR BELOW in the business of fed . JOYCE A. Court Justices in the last 125 years, the the Post-Bork Era: Confirmation Politics list is heavily populated by and Judicial Performance (New York: Peter judges from state courts of last resort, while Lang, 2002). PP. 128. ISBN: 0-8204-5683-7 those on the federal courts below the Supreme (paper). Court account for most of the twentieth JR. The Fuller Court: Jus 8l century roster. In addition to the 103, some (Santa Barbara, other are featured in side xiii, 318. ISBN: bars authored bv Vile. These much briefer 1-57607-714-4 treatments include five U.S. Court KEN L Freedom of Speech: Justices T. Marshall, and Liberties Under the Law Thomas, and and an assortment ofoth Barbara, CA: XXXI, ers as varied as Howell Mason, 395. ISBN: 1-57607-600-8 and I"".."h A \Al" .... " ..r SHAWN FRANCIS. The Yoder Those familiar with American legal his Case: Fr""tlom Education, and tory will the names of most of the Parental Rights University Press individuals who are the of Kansas, 2003). 199. ISBN: 0-7006 essays. for the well-read, anyone 1273-4 perusing the set will find new faces, and per JOHN R. Great American Judges: haps some surprises as well. Even in the case An Encyclopedia, 2 vols. (Santa Barbara, CA: ofjudges about whom much has been ABC-CLIO 2003). PP. xlviii. 981. ISBN: 1 written, the essays the for a 57607-989-9 (cloth). fresh look. For those who have suffered schol arly neglect in recent there is oppor tunity for old issues and a And for those whose former pre I Felix Frankfurter, Mr. Jllstice Holmes and the Sllpreme eminence has faded into the essays COllrt (1938) 9. offer the prospect for renewed aonreciation in 2Quoted in I Charles Warren, The Sllpreme COllrt ill a new era. United States History (rev. ed. 1926) 31 ]Marbw), v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). Criteria for the model have been 4Widely expected to harbor conservative judicial val 82 in abundance since at least biblical times. ues when appointed and to practice judicial restraint, A lawyer but never a John Adams Blackmun soon left the reservation. Insisting at retirement advanced his own criteria in 1776 in what that the Court, not he, had changed, he was only partly cor came to be called his Thoughts on Gov rect. He had changed as welL At the hearings on his nomi ernment: judges were to be "subservient to nation in 1970, for example, Senators queried him on only a single specific constitutional issue: capital punislunent. none" and always "men of on His position then on that question was the exact oppo the laws, of exemplary morals, invincible site of his position two decades later. While he stili sided patience. unruffled calmness and with the government on Fourth Amendment issues, in THE JUDICIAL BOOKSHELF 223 nearly every other category ofconstitutional law he had be Introductory Essays and Selected Cases, l3'h ed. (2002) come by 1991 the Court's most consistent voice in defense 13 . of indivi dual rights. See, generally, D. Grier Stephenson, 14The train of nominations between 1986 and 1994 Jr., "Justice Blackmun's Eighth Amendment Pilgrimage," and the turbulence that some of the nominees encoun 8 B YU Journal o.lPublic Law 271 (1994). tered stimulated a rash of book-writing about confir As of this writing, Justice Blackmun's papers were mation politics. See, for example, Stephen L Carter, sc heduled to become available for inspection at the Library The Confirmation Mess (1994); John A. Maltese, The of Congress on March 4, 2004. Blackmun had directed Selling of Supreme Court Nominees (1995); John that the papers be opened for full and unrestricted access Massaro, Supremely Political: The Role ofIdeology and five years after his date of death. Tony Mauro, "Media, Presidential Management in Unsuccessful Supreme Scholars Anxiously Await Release of Justice Blackmun's Court Nominations (1990); Mark Silverstein, Judicious Papers," 115 Daily Report I (Jan. 27, 2004). Choices: The New Politics of Supreme Court Con SEven filling the six seats initially was not without dif firmations (1994); Norman Vieira and Leonard Gross, ficulty. Washington's first choice for one of the first ap Supreme Court AppOintments: Judge Bork and the pointments was Robert Harrison. Five days after his con Politicization of Senate Confirmations (1998); George firmation by the Senate, Harrison was selected Chancel L Watson and John A. Stookey, Shaping America: The lor of Maryland, a position he preferred to an Associate Politics of Supreme Court Appointments (1995); David Justiceship on the Supreme Court. Alistair Yalof, Pursuit of Justices: Presidential Poli 6The five appointments were to fill four vacancies. tics and the Selection of Supreme Court Nominees Washington 's recess appointment of John Rutledge as ( 1999). Chief Justice in July 1795 to fill the seat vacated by 15Maltese, The Selling ofSupreme Court Nominees 143. the resignation of John Jay was rejected by the Senate 161n fairness to the author, it should be noted that she in December of that year. Washington then successfully does not use the word "hypotheses." That is this reviewer'S placed Oliver Ellsworth in the Chief Justiceship in 1796. characterization of the propositions that she lays out. She 7"It would deny all meaning to history to believe that the draws them from predictions made by "[s]cholars and other course of events would have been the same if Thomas commentators from across the political spectrum." Baugh, Jefferson had had the naming of Spencer Roane to the 4. It should also be noted that she devotes little space to the place to which John Adams called John Marshall ...." Kennedy appointment, treating it merely as the conclusion Frankfurter, Mr. Justice Holmes and the Supreme to the Bork debacle. Jd., 17. Court 9. 17 [d. , 4. 8Marshall was "a man Jefferson considered as much his 18 Professor Baugh has coauthored one with Christopher E. enemy as [Aaron] Burr himself." Garry Wills, "Negro Smith: The Real Clarence Thomas: Confirmation Ve President": Jefferson and the Slave Power (2003) 94. racity Meets Performance Reality (2000). See also Scott 9Because the election brought Federalist dominance to Douglas Gerber, First Principles: The Jurisprudence of an end, John Adams referred to it as the "revolution of Clarence Thomas (2002); and Andrew Peyton Thomas, 1801." 10 Charles Francis Adams, ed., The Works of Clarence Thomas: A Biography (2002). John Adams (l850-1856) 162. For Jefferson, the "rev 19Baugh,107. olution of 1800" was "as real a revolution in the principles 20 Quoted in Mason and Stephenson, American Consti of our government as that of 1776 was in form; not ef tutional Law 14. fected indeed by the sword, as that, but by the rational and 21 Baugh, 102. peaceable instrument of reform, the suffrage of the peo 221d., 102 . ple." To Spencer Roane, September 6, 1819, in 10 Paul 23Jd., 108. Leicester Ford, ed., The Writings of Thomas Jefferson 24The power of the I nternet was demonstrated when sev (l892-1899) 140. eral candidates for the 2004 Democratic Presidential nom 1°2 Page Smith, .John Adams (1962) 902. ination initially made substantial headway in garnering II Joyce A. Baugh, Supreme Court Justices in the Post both supporters and funds by way of the Internet. Bork Era: Confirmation Politics and Judicial Perfor 25See note I. mance (2002) (hereafter cited as Baugh). 26 James W. Ely, Jr., The Fuller Court: Justices, Rulings, 12 See note I. and Legacy (2003) (hereafter cited as Ely). 13 Baugh, 107. To avoid the perils and liabilities of a pa 27The author of this review essay has written the volume per trail, Senator Robert Dole facetiously counseled any on the Waite Court for Professor Renstrom's series. one with ambitions to sit on the Supreme Court not to 28 The series is published by Macmillan. No volume in the "write a word. I would hide in the closet until I was nom Holmes Devise series seems to have appeared si nce Owen inated." Quoted in Alpheus Thomas Mason and Donald Fiss's on the FulierCourt in 1993. The first two volumes in Grier Stephenson, Jr., American Constitutional Law: the Holmes Devise series, one on the pre-Marshall Court 224 JOURNAL OF SUPREME COURT HISTORY by Julius Goebel and the other on the Chase Court by had been worked out whereby Amish children could leave Charles Fairman, appeared in 1971. school after grade eight, provided there was some voca 29Published by the University of South Carolina Press un tional schooling (in agriculture, woodcrafting, home du der Herbert Johnson's general editorship, the initial vol ties, etc,) at least once a week, umes in this series, on the pre-Marshall and the Fuller his career, aside from religious freedom cases courts, appeared in 1995; the most recent, on the Burger in state and lower federal courts, Ball argued nine cases Court, was published in 2000. Professor Ely authored before the US. Supreme Court and assisted in twenty-five the volume in the Johnson series on the Fuller Court: others. See Wolfgang Saxon, "William Ball Is Dead at 82," The ChiefJusticeship of Melville W. Fuller, 1888-1910 New Yo'* lImes, Jan. 18,1999, p. B7. ( 1995). 53 Justice Douglas submitted a partial dissent. See Peters, 3°3 Owen M. Fiss, Troubled Beginnings of the Modem 147-48, State, 1888-1910(1993). See Ely, 189. 16970, 31 Ely, 189. 5598 US. 145 (1879). 32For example, see Uniled Slales v. Reese, 92 US. 214 164, (1876); United Stales" Cruikshank, 92 US. 542 (1876); 57 374 US, 398 (1963). Earlier decisions such as the sec and the Civil Righls Cases, 109 US, 3 (1883), ond flag-salute case (West Virginia Board ofEducation" 33158 US, 601 (rehearing, 1895), Bal'llelle, 319 US, 624 (J 943), had invalidated applica 3475 US, (8 Wallace) 603 (1870), tion of state laws to religiously inspired conduct, but the 35 158 US. at 671 (dissenting opinion). 36208 US. 161 (1908), exercise ones, Ironically, in Barnette Justice Frankfurter 37 156 US, [ (1895). learned firsthand the veracity of his own 1938 observa 38 Mason and Stephenson, American Constitutional Law tion that "men make a difference" in law (see note I). 47. Just three years before, in Minersville School Districl v. 39 134 US. 418 (1890). Gobitis, 310 US. 586 (1940), Frankfurter had spoken for 4°94 US, 113 (1877). eight members of the COUlt in rejecting a claim brought 41 169 US. 466 (1898), by Jehovah's Witnesses for a religiously based exemp 42 165 US. 578 (1897), tion from a school board's requirement that all students 198 U,S, 45 (1905), salute the American flag, Only Justice Stone dissented, shall make no law respecting an estab But in Jones Opelika, 316 US. 584 (1942), Ih'hich did lishment of religion, or prohibiting the free exercise not involve a flag-salute rule, Justices Black, Douglas, lhereof, ..." Constitution, Amendment I (emphasis and Murphy-all members ofthe Gobitis majority-went added), The Supreme Court applied the italicized provi out of their way to say that they thought Gobi/is had sion to the states, by way of the Fourteenth Amendment, been wrongly decided. Their shifts, combined with the in Cantwell v, Connecticut, 3LO US, 296 (1940), post-Gobi/is arrivals of like-thinking Justices Jackson and 45 Shawn Francis Peters, The Yoder Case: Religious Free Rutledge, transformed a solid majority agail1st the free dom, Education, and Parental Rights (2003) (hereafter exercise claim into a 6-3 majority in favor of the more cited as Peters). Peters is also the author ofanother volume broadly based free-speech right announced in Barnette, about religious freedom: Judging Jehovah's Witnesses: See generally Alpheus Thomas Mason, Harlan Fiske Religious Persecution and the Dawn of the Rights Rev Stone: Pillar ofthe Law (1956) 525-35, 599-601. olution (2000). See "The Judicial Bookshelf," 26 Journal 175, ()lSupreme Court History 279 (200 I). 59494 US, 872 (1990). 46 406 US, 205 (1972). 6OFor insights into the Smith case, see Carolyn N, Long, 47Directed by Peter Weir, with Harrison ford, Kelly Religious Freedom and Indian Rights: The Case of McGillis, and Lucas Haas in lead roles, this 1985 film Oregon v. Smith (2000), depicted an i\mish widow and her young son who were 61 521 US, 507 (1997), caught up in the investigation ofthc murderofa pol ice offi 62 Peters, 175-78, cer in Philadelphia. "Witness"was largely set and filmed in shall make no law ... abridging the Fee the Amish countryside ofLancaster County, Pennsylvania. dam ofspeech. , ." Constitution, Amendment 1 (emphasis 4BRomans 12:2 (Revised Standard Version, 1946), added). [80. 64Ken I. Kersch, Freedom of Speech; Rights and Liber ties Under the Law (2003) (hereafter cited as Kersch). 39-40. Other states had preViOusly accommodated 65Freedom of Speech is volume in the America's free the Amish practice of ending formal classroom instruc doms series, for which the author of this review essay tion after the eighth grade. In Pennsylvania, for exam serves as general editor, As with the other books in the ple, nearly twenty years before Yoder came down, a plan series, the narrative and analytical chapters in Kersch's THE JUDICIAL BOOKSHELF 225 book (pp. 1-182) precede a substantial amount of refer Supreme Caliri His/ory 81 (2003). Frequently omitted ence material: an A-Z listing of key people, cases, and from edited works, but happily included in both the Judges events (pp. 183-233); a documents section containing ma and Lawyers sets, is a comprehensive index. This some jor cases, speeches, and essays (pp. 235-348); a chronol times underrated but highly valuable tool allows the user ogy (pp. 349--60); a table ofcases and statutes (po 361-64); to search not only by name, but also by topic, case, state, or and a helpful bibliographic essay (pp. 365-70). other category, thus making the task of cross-referencing 66Kersch, xxviii, 2. relatively painless. Thus, under "Holmes, Oliver Wendell, 67--68. Eventually, the Adams administration ob Jr.," one is pointed notonly to the essay on Holmes but also tained indictments of fourteen individuals and convictions to other places where he is discussed or otherwise men often. The Supreme Court did not rule on the constitution tioned, such as the essays on Felix Frankfurter, Learned ality ofthe Sedition Act at the time. Indeed, substantialju Hand, Charles Evans Hughes, Lemuel Shaw, Harlan Fiske risdictional obstacles stood in the way. No appeal in crimi Stone, and Charles Wyzanski. The author of this review nalcases lay to the Supreme Court from a circuit court until essay contributed the essay on Pennsylvania jurist John 1891. Donald Grier Stephenson, Jr., Campaigns and the Bannister Gibson (Vile, p. 287). Court: The Supreme Court in Presidential Elections (1999) 34-35. However, in a long exercise of retrospec the list includes: Black, Burger, tion, the Court announced in 1964 that the law, which Cardozo, Field, Frankfurter, Gray, Harlan I, Harlan n, had cleverly expired by its own terms in 180 I, was un Holmes, Hughes, Marshall, Rehnquist, Stone, Story, constitutional (New York Times v. Sullivan, 376 US. 254, Taney, and Warren. J964). siindeed, some ofthe state judges from the nineteenth cen 68Kersch, xxviii. tury featured in Great American Judges were pioneers 31. in American jurisprudence. See, for example, the essays 97-160. on John Bannister Gibson (p. 287), James Kent (p. 433), 71 395 US. 444 (1969). Robert R. Livingston, k (p. 471), Joseph Henry Lumpkin see Justice Black's concurring opinion in (p. 479), Theophilus Parsons (p. 596), and Lemuel Shaw New York Times Co. v. United Siales, 403 US. 713 (1971). (p.704). 73 Kersch, 34. 82"you shall appoint judges and officers in all your towns 741d., 145. which the Lord your God gives you ... ; and they shall 75 491 US. 781 (1989). judge the people with righteous judgment. You shall not 799,802. pervertjustice; you shall not show and you shaH 18()...8J. not take a bribe, for a bribe blinds the eyes ofthe wise and 78 John R. Vile, ed., Great American Judges: An Ency subverts the cause of the righteous. Justice, and only jus clopedia (2003) (hereafter cited as Vile). The organiza tice, you shall follow ... " Deuteronomy 16: 18--20 (RS'II, tion is similar to that ofVi!e's Great American Lawyers 1952). (2001). See "The Judicial Bookshelf," 28 Journal 83Quoted in David McCullough, John Adams 103 (2001). 226 Contributors Harry Downs retired from Holland & Knight Philippa Strum is the director of the Division in 2003 and is now of counsel at Crowley & of U.S . Studies at the Woodrow Wilson Clarinda, another Atlanta law firm. International Center for Scholars and the Broeklundian Professor of Political Science Pnina Lahav is a professor of law at Boston Emerita, Brooklyn College. University School of Law. James F. Van Orden is a law student at the L. A. Powe Jr. holds the Anne Green Regents University of North Carolina at Chapel Hill Chair in Law and is a professor ofgovernment School ofLaw. This essay is an expanded ver at the University ofTexas at Austin. sion ofthe one he contributed to One Hundred Americans Making Constitutional History D. Grier Stephenson. Jr. is the Charles A. (CQ Press 2004). Dana Professor of Government at Franklin and Marshall College. He regularly contributes Peter Wallenstein is a professor in the depart "The Judicial Bookshelf" to the Journal. ment of history at Virginia Tech. 227 Photo Credits All images are from the Library of Congress except as Pages 141, 142, Courtesy of Schuylkill County Historical listed below. Society Page 149, Corbis Page vi, The New Yorker Collection 2002 1.B. Handelsman Page 158, Courtesy of Ford T. Johnson and Peter from cartoonbank.com. All Rights Reserved. Published Wallenstein January 7, 2002 Page 165 and 178, Corbis Page 124 (left), Collection of the Curator, Supreme Court Page 179, Courtesy of Anthony Lewis ofthe United States Page 187, Courtesy of Anthony Lewis Page 124 (right), Independence National Historical Park Page 204, The New Yorker Collection 1984 1.B. Collection Handelsman from cartoonbank.com. All Rights Reserved. Page 137 (bottom), Courtesy of Historical Society of Page 210, Supreme Court Historical Society Schuylkill County Page 212, Supreme Court Historical Society Page 138 top and bottom, Courtesy Minersville Public Page 221, Collection ofthe Curator, Supreme Court ofthe Library United States Cover image: The Great Hall of The Supreme Court. Library of Congress. linlmal'. law lIases ani limeriaan auaiell i?e'ter ®lharles Hoffer ana N.E.H. Hull, series eaitors Murder in Mississippi United States v. Price and the Struggle for Civil Rights Howard Ball "A GothiC into the racist 11l!!,lllHl Sexual Harassment and the Law The Mechelle Vinson Case Augustus B. Cochran III "This is much more than a story of a case. It provides a panoramic overview of the role of work in women's lives, a succinct historv of loyment discrimination law. and a , evolution of our views of sexual harassment in the It also shows how the of one individual, like Mechelle Vinson, can make a difference in the course of the law. "-Karen O'Connor, author of Women, and American Society 256 pages, Cloth Paper $14.95 Available from bookstores or from the press. VISA, MasterCard, and American Express accepted. University Press of Kansas 2501 West 15th Street· Lawrence KS 66049 785-864-4154 • Fax 785-864-4586 • www.kansaspress.ku.edu ARTICLE SUBMISSIONS Joumal 0/ SflpUrTle Court His/ory SUBMISSIONS The Journal of Supreme Court History accepts manuscript submissions o n a continual basis rhroughout rhe yea r. The Journal is published three times a year. in M arch . Jul ),. and N ove mber. Submiss io ns are reviewed by members of the Board of Editors and auri10rs generally ace notified with in six weeks as to whether an article has bee n accepted for publicati on. Authors are not restricted from submitting to other journals simuluneously. 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