YEARBOOK 1988 SUPREME COURT HISTORICAL SOCIETY OLIVER WENDELL HOLMES, JR. Associate Justice, 1902-1933 YEARBOOK 1988 SUPREME COURT HISTORICAL SOCIETY OFFICERS Warren E. Burger Chief Justice of the United States (1969-1986) Honorary Chainnan Kenneth Rush, Chainnan Justin A. Stanley, President PUBLICATIONS COMMITTEE Kenneth S. Geller, Chainnan Alice L. O'Donnell E. Barrett Prettyman, Jr. Michael Cardozo BOARD OF EDITORS Gerald Gunther Craig Joyce Michael W. McConnell David O'Brien Charles Alan Wright STAFF EDITORS Clare H. Cushman David T. Pride Barbara R. Lentz Kathleen Shurtleff CONSULTING EDITORS James J. Kilpatrick Patricia R. Evans ACKNOWLEDGEMENT The Officers and Trustees of the Supreme Court Historical Society would like to thank the Charles Evans Hughes Foundation for its generous support of the publication of this Yearbook. YEARBOOK 1988 Supreme Court Historical Society Establishing Justice 5 Sandra Day O'Connor Perspectives on Oliver Wendell Holmes, Jr. Self-Preference, Competition and the Rule of Force: The Holmesian Legacy 11 Gary Jan Aichele Sutherland Remembers Holmes 18 David M. O'Brien Justice Holmes and Lady C 26 John S. Monagan Justice Holmes and the Yearbooks 37 Milton C Handler and Michael Ruby William Pinkney: The Supreme Court's Greatest Advocate 40 Stephen M. Shapiro Harper's Weekly Celebrates the Centennial of the Supreme Court 46 Peter G. Fish Looking Back on Cardozo Justice Cardozo, One-Ninth of the Supreme Court 50 Milton C Handler and Michael Ruby Judging New York Style: A Brief Retrospective of Two New York Judges 60 Andrew L. Kaufman Columbians as Chief Justices: John Jay, Charles Evans Hughes, Harlan Fiske Stone 66 Richard B. Morris, Paul A. Freund and Herbert Wechsler Roosevelt's "Court Enlargement" Plan FDR's Court Packing Plan: A Second Life, A Second Death 78 William E. Leuchtenburg The Court Packing Plan and the Commerce Clause 91 Robert Stem The Judicial Bookshelf 98 D. Grier Stephenson, Jr. Contributors 118 Photo Credits 119 Copyright 1988, by The Supreme Court Historical Society 111 Second Street, N.E. Washington, D.C. 20002 ISBN 0-914785-00-3 The Supreme Court Historical Society BOARD OF TRUSTEES Warren E. Burger Chief Justice of the United States (1%9-1986) Honorary Chairman Kenneth Rush Justin A. Stanley Chairman President Alice L. O'Donnell First Vice President Vice Presidents Charles T. Duncan J. Roderick HeUer, III Frank B. Gilbert David Lloyd Kreeger Melvin M. Payne Virginia Warren Daly Peter A. Knowles Secretary Treasurer Trustees Noel J. Augustyn Francis R. Kirkham Ralph E. Becker RexE. Lee Griffin B. Bell Sol M. Linowitz Hugo L. Black, Jr. Howard T. Markey Robert L. Breeden William Barnabas McHenry Vincent C. Burke, J r. Richard A. Moore Gwendolyn Cafritz David A. Morse William T. Coleman, Jr. Norman E. Murphy Patricia Dwinnell Butler Dwight Opperman Kenneth S. Geller E. Barrett Prettyman, Jr. William T. Gossett William P. Rogers Erwin N. Griswold Walter S. Rosenberry III Lita Annenberg Hazen Fred Schwengel Joseph H. Hennage Bernard E. Segal William E. Jackson John C. Shepherd Frank C. Jones Leon Silverman Stanley N. Katz Chesterfield Smith Bruce E. Kiernat Obert C. Tanner James J. Kilpatrick M. Truman Woodward, Jr. Earl Kintner David T. Pride Acting Director Kathleen Shurtleff Assistant Director Jonathan Schraub General Counsel Establishing Justice Sandra Day O'Connor Etlitor's Note: This paper was delivered by Justice O'Connor as the Society's Thirteenth Annual Lecture on May 6, 1988. This paper is the text of that speech. Precisely 201 years ago in Philadelphia, I 55 delegates from 12 states at the Constitu­ tional Convention set their minds and hearts to work in order "to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity." The delegates told us their purposes at the very start of their final draft of the Constitution. If the order of the list of their purposes means anything, "establishing Justice" was particu­ larly im portant; it ranks second only to forming a more perfect union. Many things are involved, of course, in the effort to "establish justice": enumerating rights possessed by every individual, setting stan­ Associate Justice Sandra Day O'Connor has served as a dards for holders of public office, and placing memberoflhe Supreme Court since September 25, 1981. limits on the powers of government are just a few examples. In a sense, the whole of the themselves a broad agenda. They were to Constitution was an effort to establish justice create an entirely new structure of govern­ by establishing a just government. But from ment. That we are still here with that structure my perspective as a judge, one thing that "es­ intact is a powerful testament to the skill and tablish surely means is the establish­ wisdom they applied to their task. Whether the ment of a judicial system. fact that 33 of the delegates were lawyers This is an auspicious time to examine the accounts for much of that skill I cannot say. framers' development of Article III, creating The breadth of their work, however, often the judicial branch of our government. We makes it difficult to divine precise guidance have witnessed recently the process of from their deliberations, for in certain in­ selection of a new Supreme Court Justice to stances, there was little debate concerning replace Justice Powell, who retired after 15 particular provisions. years of distinguished service. The debate In reviewing the records of the Convention, over the nominations of Judge Bork, Judge one is struck by how little attention was paid to Ginsburg and Judge Kennedy focused public the judicial branch. In contrast to the extended attention on the Court and has led to ques­ debate concerning the composition and the tions concerning the Court's role in our consti­ structure of the legislative branch and the tutional structure, its power, and the manner in manner in which the executive should oper­ which it operates. The answer to all these ate, which spanned months, the intermittent questions lies in Articles II and III. debate over the judiciary could have easily The framers of our Constitution set for been conducted in a single afternoon. Perhaps 6 Yearbook 1988 the delegates had exhausted themselves on there are those today who think our judges other matters and were worn down by the hot might not deserve such favored status, but in Philadelphia summer when they turned flllalJy the minds of the framers, the third branch was to the judiciary. After aU, they did not begin to the least dangerous branch. discuss in earnest the more difficult questions When the framers did get around to concerning the third branch until after the discussing the judicial branch, they were faced Great Compromise--resolving the structure with three primary questions: first and fore­ of the legislative branch--had been reached. most, should there be a federal judiciary at But comments made in the course of the all, and if so, should it be limited to one su­ debates that did take place concerning the preme court or include as well a host of lower jUdiciary suggest another reason: the general federal courts; second, who should select the lack of controversy was due not to exhaustion judges for whatever courts were established; but to a general high regard for the jUdiciary. and last, what should be the terms and condi­ The experience with a despotic monarchy, tions under which those judges would serve? and with state legislatures the framers felt had All these issues were eventually addressed--or run wild, led to a wary, if not disparaging intentionally not addressed--and the result is attitude toward the legislative and executive the federal judiciary we have today: a third branches. A single executive was seen by branch of 749 active judges and over 18,000 Edmund Randolph as dangerously close to a employees. monarchy. (Farrand, Records, I at 66 [June 1]) The idea that there should be some sort of James Madison \\oOrried that the executive might national judiciary was present from the very "pervert his administration into a scheme of start of the Convention. The Virginia plan, peculation and oppression." (Farrand, Rec­ which set the groundwork for virtually all that ords, II at 65 [July 20)) The legislature fared was done at the Convention, provided that a even worse in the delegates' minds. Gou­ "national judiciary be established to consist of verneur Morris predicted that "[t]he legisla­ one or more supreme tribunals and of ture will continually seek to aggrandize and inferior tribunals to be chosen by the national perpetuate themselves," (Farrand, Records, II legislature." On the second full day of at 52 [July 19]) and in the view of Nathaniel deliberations, the Convention approved a Gorham of Massachusetts, "public bodies fe[lt] resolution "that a national government ought no personal responsibly[,] g[ a ]ve full play to in­ to be established consisting of a supreme trigue and cabal" and engaged in "dishonor­ Legislative, Executive, and Judiciary." Within able measures." (Farrand, Records, II at 42 two weeks, the delegates began considering a [July 18]) more detailed resolution on the national judi­ In contrast, the framers had only kind ciary. words for the judiciary. Oliver Ellsworth of Starting with the language of the Virginia Cormecticut, for example, who became the plan, the framers merely amended it to provide third Chief Justice of the United States, saw I for "one supreme tribunal and one or more the judiciary as possessing "wisdom and firm­ inferior tribunals." This version was approved ness" and "a systematic and accurate knowl­ by the full Convention without debate. Though edge of the Laws." James Madison was even the question of inferior tribunals was later more effusive, arguing that the judiciary briefly revisited, the passage of this resolution would preserve "a consistency, conciseness, left us with the Supreme Court we have today.