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05, v 1, 30, n , !

INTRODUCTION Melvill L

ARTICLES

Court i\dvocacv In Early Nineteenth David C Frederick

The Case of the Creative Advocate

Louis D. Brandeis: Advocate Before and On the

Melvin L 31

\Vomen as Court 1879-1979 L Clark 47

Oral oEa Court Bar G 68

CONTRIBUTORS

PHOTO CREDITS 83

2005, br Hiscorical

1059-4329 Introduction Melvin I. Urofsky

Each year the Court Historical thored on the famous lprnm'/sp Cases. sponsors lecture series at the Court. The audience also witnessed a marvelous The are, of course, students of the that since the man who Court and its history, and the Society is pleased introduced Professor Lurie had been a class­ and honored that the Justices in these mate of his at Harvard-Justice David Souter. the lecturers and their While no one would claim that the lectures topics. As someone who has participated in in the series a portraitofad­ more than one of these I can assure vocacy before the nation's highest court, you that it is a and an audience un­ of lawyers or of like any other. An added bonus is that the at a certain time. Journal then publishes these talks, provid­ David Frederick's lecture took us back to a time access to a wider audience of men and when the Court imposed no time limits on oral women, and lay persons, teachers and arguments; men, and women, would students, who are interested in the Court's crowd into the old courtroom in the basement of the when orators such as Daniel This past year's was before Webster a case. In modern the Court, and as you can see. I was among the it was the hottest ticket in town. people fortunate to be invited to deliver a talk. Starting in 1879, women in the audience As some ofyou may know, 1am now also to see women at the bar. Mary writing a new ofLouis D. Clark's piece on women before the so the lecture was doubly welcome; in it I was Court for the ensuing century not only shows able to some of the newer ideas I have some of the that took but also had since the research. role in American My friend Jonathan Lurie's paper de­ and in the legal profession rived from a book that he coau­ 10

v vi JOURNAL OF SUPREME COURT HISTORY

Finally, no effort is made to often take their cases up to the MarbJe Palace coordinate the annual lecture with the se­ on this year it worked out that way. Judge Although we have a more unified theme John Roberts about the art of oral ad­ than is usual in our there is still that vocacy, and how the art has enemized the great variety that marks the articles we publish, Court bar, those who reg­ a diversity that truly reflects the very history uiarly in the federal courts and who of the Court itself. Supreme Court Advocacy in the Early Nineteenth Century

DAVID FREDERICK*

The early nineteenth was transformative of the Court's Yet understanding those fundamental changes some appreciation of practice before the Court in the late and the developments in the nineteenth century produced that are still felt In this first half-century or so of the Court's and occurred in oral argument practice than in any other Those are best understood ref­ ted to oral argument and to rest erence to three basic themes. One is the ef­ on written arguments in briefs. Those develop­ fect of the Court in adopting the of ments launched the modern trend of the Court the King's Bench in one of its earliest sets of on written briefs with more limited oral rules. That decision started the Court down arguments. the path of extended oral arguments. A sec­ ond theme is the retrenchment from that prac­ late Eighteenth-Century Practice tice, and the evolution toward the use of written briefs to present arguments in the In the first year and a half of the case. This trend toward the end of the the rules of led to Marshall Court era, which witnessed some of ,much among The the most celebrated advocates and oral argu­ Constitution had created the Court, but the ments in the Court's history, In oral Framers had left vague the contours ofits prac- argument in that The vations may be made about the be­ tween political rhetoric and oral argument style tion with the Court asking for clarification as 111 Finally, in the to which procedural rules attorneys should fol­ the Court institutionalized low. On 8, I the Court rpo,v",n several important rules to limit the time allot- by an order that "this court 2 JOURNAL OF SUPREME COURT HISTORY

the practice of the courts of king's succinct. A "declaration" contain bench, and in as afford- a few sentences about the of the case and outlines for the practice of this court; and the basic issue presented in the appeal.9 that they wilt, from time to make such al­ For the modern American terations therein as circumstances may render schooled in the traditions of voluminous writ­ necessary.,,3 ten briefs, such a practice would seem highly In a way, this was a curious choice. Ini­ inefficient and impracticable, The rationale for the Court had shown a to sort practice in has been that the entire out procedural details through litigation. But judicial process is completely open to public that proved the varieties the learns about of procedural that arose in the case is in open court, which more than outpaced the Court's ability to re­ thus diminishes the possibility ofout-of-court fine the rules of practice through common-law influence, But in an era of limited communi­ methods. In adopting rules at the Bench that of as a model, the Court a de­ To With, access to parture from what had been the apparent aim reported decisions was ditficult. The second of the Judiciary Act of 1789 to place a more volume of Dallas's reports of the Court's native stamp on legal in the earliest Term did not appear until I the new ;-..Jation. There, had made a fed­ third unti I 1799, and the fourth until 1807. eral writ oferror a very different ofinstru­ In its first decade, the Suoreme Court ment than the English oractice.5 Perhaps the hewed to the oral tradition of ap­ litigation. As a practical matter, how­ ever, even that tradition was rather informal books that de­ and somewhat throughout the 17908. scribed what lawyers were the Court did not have a to foJ/ow. Those instructions were fairly well very significant appellate docket. Although the encapsulated in books such as Orders case was docketed in I 10 the and In the Court of King's Bench docket did not to accu­ from Second ofKing James I toHilary Term mulate in earnest until 1796. 11 Prior to that the Fifteenth of King George n, published year, the Justices spent considerable time rid­ in 1 or The Practick Part of the Law: under the Court's Shewing the Office of An Attorney, and A or on writs, such Guide for Solicitors in All the Courts of as writs of mandamus or prohibition, Westminster, published in 1702. Those vol­ From the Documentary History of the umes, while helpful in the basics, did Supreme Court under the not contain much advice about how to present of the Supreme Court Historical a case, Society and the direction of Maeva it advocates at is about oral argu­ the their material ment in the 1790s and, through that, to to the court. For arguments to the House make inferences about argument more the tribunal in advo­ The notes from oral arguments by cates would even go so far as to state orally Justices and advocates suggest the wide range the decision of the court from which the ap­ of sources and cited by counsel, cases taken, and then with a from other courts and treatises apparently the of the facts and most among them. 12 Less clear is how on which they relied in making their appel­ active the Court was in questioning counseL late argument8 The actual written filings were The practice of having counsel read swatches SUPREME COLI ADVOCACY 3

of almost no written submissions attorneys. All business before the Court appears to have been conducted orally. One argument conducted after that rule in 1795 illustration oforal The case of Bingham Cabot involved be- and the owners of -the Cabots-over should be to pay

that had been taken as the Revolutionary War in 1778. While serving

In flour on the Hope be sold in Martinique, and that various other expenses for be cred­ ited until the real owner could be determined. the action basically involved a claim that agent had interfered with the prop­ person. Samuel Dexter (pictured) argued against Attorney General William Bradford in a 1795 case involving Although the lasted for more than the taking of the privateer ship Hope as a prize dur­ a quarter-century, and the Court ing the Revolutionary War, The dispute lasted more twice heard argument in the case, it never ruled than a quarter-century and was argued twice before the Supreme Court, which never ruled on the merits. on the merits. The first time the case came be­ fore the Bingham court decision issued by Justice who ofprepared treatise and case however, had sat alone. Justice had excluded was not consistently followed. Some advo­ much evidence in favor and then in­ cates resorted to bi blical history, structed the jury that "the law was on and Roman law in arguing their cases, rather the evidence offered in the cause, the Plaintiffs than the matters in the to recover."!4 This un­ case. derstood the purport of the judge's ruling and The Justices must have found some ofthat duly rendered a verdict in favor of the Cabots. to be beside the a Justice denied a motion for new trial, but had no choice but to allow a bill gave notice to the tions. attorney, General hereafter [the Justices 1will to be fur­ William Bradford, brought a writ of error to nished with a statement of the material points the Court. 15 ofthe case.,·!3 That rule be read by mod­ Although in that era some Justices recused ern eyes to be an invitation to file a written themselves if the Court sat in re­ brief, but if it was, the bar did not get the hint. view of a circuit court decision had ren­ lawyers dered, Justice was not one of them. ing them to fill their oral nrf'~pnt" (\!'p(\\/f'r because Chief Justice John was citations and of learned treatises absent on a diplomatic mission to England, in support of the argument. The Justice Cushing over the Supreme history from this reveals the existence Court argument. From Bradford's notes of the 4 JOURNAL Of SUPREME COURT HISTORY

the Court after John Marshall's tenure as Chief Justice.

Changes in Oral Argument Practice in the Marshall Court Era

Among the many profound in the . Supreme Court under Marshall's leadership between 180] and I the manner and form of oral argument constituted only one. Yet even this issue of basic court sub­ ments on the jurisdiction Ut::>llUIl, the Justices stantially altered how the Court decided cases with a rather unusual move. and how the bar announced, in mid-argument, that they would the Justices. first decide whether the circuit court had the Court a retrenchment away jurisdiction before deciding whether Justice from unlimited oral that stemmed had been cor­ from adoption of the rule in 1792 rect Normally, that would have been a fine lng Bench practice. In 1812. the Court way to narrow the scope of the decision and issued a rule limiting oral to only two decide only what was necessary: if the Court counsel per side. ls That rule drove the had concluded that Justice Cushing's circuit trend of Court who came court lacked jurisdiction, the circuit courtjudg­ to dominate advocacy before the Court. ment would have been vacated and the lit­ igants would have proceeded to admiralty court. But having committed themselves to Advocates Before that decisional point the Justices then found the Marshall Court themselves divided on the jurisdictional and thus unable to render a decision. A Court advocacy en­ foreshadowed a potentially dispositive about whom books, reversal ofJustice circuit court opin­ and dissertations have been writ­ the Court ended up this issue ten: William Pinkney, Thomas Emmet, Luther with what must have been a somewhat embar­ Martin, William Wirt, and Daniel to public non-decision. On the eviden­ name just the most prominent. Each of those the Court overwhelm­ advocates brought a distinctive to the ingly voted to vacate Justice courtroom. and remand the case, where it continued In William Pinkney, for was a litigation. clothes in the latest fashions in The case was on the brink of its third his court appearances. At he was known to the Suoreme Court in 1804, when William to speak in court amber-colored doe­ died. that John Marshall skin gloves. (This is the kind offashion acces­ had become the Chief Justice. John Adams' sory that likely would draw some comment if initial choice in 1800 had been John Jay, who any advocate felt emboldened to do it had resigned as ChiefJustice in 1795 after be- Even with his foppishness, Pinkney elected governor ofNew York in absentia. was an advocate of the first rank. The But Jav declined to resume as Chief Justice, lem was, he knew it-and he made his op­ that the Court lacked "energy, know it too. For all his brilliance, and dignity."17 Such could not be said about Pinkney was prone to insulting his adversaries SUPREME COURT ADVOCACY 5

Although a first-rate advo­ cate, the always-fashionably­ dressed William Pinkney had an unfortunate habit of in­ sulting his adversaries in public. Opposing counsel Daniel Webster locked him in a room in the Capitol after being publicly disparaged.

in the courtroom, sometimes with unfortunate Although Chief Justice Roger Taney de­ results. He once disparaged Daniel Webster in scribed him as an advocate in rather contra­ court, whereupon Webster invited Pinkney to dictory terms, Taney nonetheless believed that a room in the Capitol, locked the door, and Martin "never missed the strong points of his put the key in his pocket. What ensued has not case.... He had an iron memory, and forgot been recorded for posterity, but the next morn­ nothing he had read; and he had read a great ing Pinkney appeared in court and " tendered a deal on every branch of the law. ,,22 very courteous apology to Mr. Webster." 19 On Thomas Emmet was known for prepar­ another occasion, Pinkney said in open court ing with a zeal matched by few advocates. He ofLuther Martin, at that time the attorney gen­ demonstrated a passionate commitment to his eral of Maryland, "He would not long trespass legal causes and "put[] his whole soul" into on the patience of the Court, which had been his cases. A contemporary described his· ar­ already so severely taxed by the long, though . guments this way: "One observes in all his learned argument of the Attorney-General­ speeches the exertion of a mind naturally whose speech, however, was distinguished by capacious, stored with various learning, and these two qualities, that of being remarkably adorned, but not encumbered, by the tasteful redundant, and remarkably deficient.,,2o drapery of an ardent imagination."23 Emmet Pinkney's view notwithstanding, Martin collapsed from a stroke in the midd Ie of an was known for the "fullness ofhis Jegal knowl­ argument in 1827, leading one newspaper to edge" even though he "often appeared in record that there was "something glorious and [the Supreme] Court evidently intoxicated."21 consolatory" in the manner of his death.24 6 JOURNAL SUPREME COURT HISTORY

Daniel Webster preferred reading literature to law. a habit that may explain his magnificent oratorical skills. Webster's arguments in Supreme Court ca!>e!> be­ came the pillars of the na· tion's constitutional frame­ work. Below is the court­ room in the Capitol where the Justices heard argu· ments in the nineteenth century.

Such industry and preparation could not scribed Webster as clever, but a be attributed to the great Daniel ,,25 Webster himself confessed that Webster. After working with Webster on a he and literature to Court case, Littleton him- law. "A 'student at law' I was not," de- he wrote, "unless 'Allan Poems' and SUPREME COURT ADVOCACY 7

'Female Quixotism' will pass for law books,,,26 described as the "great government lawyer" A statistical analysis of Webster's of the Marshall Court era, but it is notewor­ between 1814 and 185 I revealed that he lost that, of the 138 cases he while slightly more often than he won, but statis­ Attorney General, only 39 were government tics alone obscure the greatness of cases; the rest were as a practitioner,29 his advocacy skills. Webster had the ofun­ Indeed, he viewed General work as of the Marshall Court's such an intrusion on his to generate nationalist sympathies and was able to arm the income that he was said to have "waited for Court with the that would form the another official to request his appearance for pillars of our constitutional framework, the government [in a and often failed Another great advocate of the era was to see the interest of the United States in William Wirt, who earned his great distinc­ cases where it was obviously concerned. ,,30 tion in the Court bar while Although Wirt's absences from as Attorney General from 1817 to 1829, Like Washington to conduct his he worked to prepare for greatly inconvenienced other members of the his arguments, so much so that family mem­ Monroe and Adams no one bers used to refer to Wirt's "annual seems to have complained about the basic in- [Clourt "an illness brought on by the of an Attorney General that would take him who spent the bulk ofhis time on client into the wee hours of the night. Wirt was matters. As Wirt wrote to his wife on one such excursion to a case for a he feared only that "his many absences from the would cause a

But when he was in Washington, he in a great number of the Marshall Court's important constitutional cases: the Dartmouth case,32 Sturges v, Crownin­ McCulloch v. 35 Gibbons v. 7 Juunuel''S 3 Cherokee Nation v. the Charles case.39 In 1815, even before he became Attorney Wirt of­ fered advice on advocacy, Although some of his to emotionalism from an en- different age, his advice bears some re­ semblance to the process that a modern advo­ cate must endure before fully to appear in the Court:

You must read and meditate, like As Attorney General from 1817 to 1829, Wiliam Wirt a Conastoga argued thirty-nine cases for the government before the Court. But that figure does not compare with ment to the horse the simile, You the ninety-nine cases he argued in his much more must read like Jefferson, and lucrative private practice, Wirt's frequent absences like ask me how you are from the capital for work on private claims were 11 source of great annoyance to the Monroe and Adams to do this, I cannot tell you, but you administrations. are nevertheless to do it . , . 8 JOURNAL SUPREME COURT HISTORY

the cause in all its of fact and on our Nation. These advocates rpct='>ntr-oli ar­ law; gument in some of the most in the Court's each other. In the 1814 Term, Pinkney more than half of the cases decided by the Court:' 1 And Martin was one of the 10sin2: ad­ vocates in the celebrated case of A1cCuiloch v. Mar}'land, a case whose importance was insinuate among the heart- acknowledged at the time the Court the bones and marrow ....40 in its rule limiting argument to two counsel per side Justices in the modern era, of course, seem In McCulloch, six advocates oresented ar­ to be far Jess prone to allowing an advo­ guments, including the cate to insinuate himself into their "bones Daniel Webster, as well as Pinkney, Martin, and marrow" are far too and Joseph Hopkinson. All as among the most promi­ The idiosyncracies ofthese great nent of the era. In Jones is advocates the force of their intellects said to hold the record for most arguments had a profound influence on the Court and in the Supreme Court, with more than 300.

Walter Jones (1776-1861), who served as Attorney General of the United States for the District of Columbia, is said to hold the record for the most arguments in the Supreme Court: more than 300. SUPREME COURT ADVOCACY 9

Luther Martin was Attorney General of Maryland on and off for nearly forty years. He was a frequent advo­ cate before the Court and was one of several distin­ guished lawyers who argued the landmark McCulloch I/. Maryland case.

Hopkinson, a prominent member of the breath" as Martin that he intended to bar, was well fe- quote the young John Marshall-who had been Chief Justice Marshall and rep­ a to Virginia's convention. resented the prevailing in more than Martin is said to have quoted Marshall as say- half of his Court cases44 McCulloch words to the effect that the states could would not be one of although not be divested by implication of powers that Hopkinson was said to have delivered "a su­ they had prior to the adoption of argument.,,45 In any Supreme Court ar­ Similarly, he del ivered it in advo­ gument, where an advocate seeks to an ad­ cating a losing cause, Martin's was vantage or make a point by quoting a Justice's thought to have been one ofhis finest. Interest­ words directly at him or her, there is a his argument invoked the Constitutional moment of drama, as everyone in the court­ in which he had been a room is poised to see whether the shot will hit pant in 1787, thus a rare merger be­ its mark and how the Justice will respond. In tween the roles of an attorney as both this Marshall breathed a sigh of re­ of the historical record and of it in lief. he later "I was afraid I had Martin took direct aim at in that debate; but it the took a was not so bad as I ,,49 10 JOURNAL OF SUPREME COURT HISTORY

As the McCulloch argument demon­ croachments on national authority by states in strated, the Court at this time still made no regulating commerce. effort to limit the length of attorney presen­ Close textual analysis was also an im­ tations. Oral argument could consume numer­ portant tool. In McCulloch, Pinkney ous days in important cases. In for compared the use ofthe term as it example, the argument on February 22 appears in the and Proper Clause and did not end until with its use in Article I, Section 10 of the Constitution, which announced the rule that states may not interfere lay any with interstate commerce under the Commerce orduties on imports orexports, except the attorneys for six what may be necessary for execut­ its inspection laws powers." The Necessar and Clause does not contain a modi­ Common Types of Arguments Used fier with the word "absolutely." In nrp<;pnti those the advocates it authorizes "to make all tfied a wide range of approaches to attract Laws which shall be necessary and proper for votes. As Martin's argument in McCulloch into Execution" the powers oHhe gen­ advocates often referred to eral government. As and the debates surrounding promulgation and "no qualification ofthe ratification of the Constitution. Webster also absolute. It may be taken in its ordinary gram­ described at length the "immediate causes matical sense. The word necesswy, which led to the adoption of the present by has no inflexible it is used Constitution"Sl in his argument in Gibbons v. in a sense more or less strict, according to the subject. Chief Justice Marshall's In addition to his historical argument in picked up on that where it contrasted Gibbons, Webster also to impress upon in those two con­ the Court the of allowing New As Chief Justice Mar­ York to issue an exclusive license for nav­ it is "impossible" to compare igation between New Jersey and New York those two provisions "without feeling a con­ that would override the license viction that the convention un­ Gibbons had obtained under a 1793 Act of derstood itself to the mean­ As Webster put it in Gibbons, if prefixing the does not have the power to override word 'absolutely.' This word, like New York's licensing under federal is used in various senses."S4 law, "where is the or who shall fix a boundary for the exercise of the power of the Comparison of Supreme Court Advocacy States? Can a State grant a monopoly oftrade? with Political Rhetoric Can New York shut her ports to all but her own citizens? Can she refuse admission to ships of Another important dynamic to note during the particular nations?"S2 In much the same way Marshall Court era was the way in which ad­ that Justices in arguments pose vocacy in the Supreme Court mirrored pothetical questions to gauge the outer limits of cal rhetoric. advocates did not make a position, Webster did the same thing overtly political arguments, there are rhetorically in his oral argument to the Court. similarities between the kinds of arguments He to upon the Justices if used advocates to Court they upheld the state's law in this instance, it Justices and the types advanced by political would be very difficult to contain future en­ leaders of the day in their orations. The most SUPREME COU ADVOCACY 11 obvious was length. Just as scribed themselves as republics but Court arguments could last for days, so too and appealing to the need for flexibil­ could orations last hours and de­ in the workings of a Nation.57 At More importantly, political least in that address, he did not insult orations of the era conveyed the same com­ Senators him. bination of textual analysis, and By contrast with the more extended reason, and emotional appeal of successful rhetorical discourses in and

Court arguments. (1\1,"""'P\I in the Marshall Court era, con­ This is perhaps not too surprising, be­ sider how both have today. In this cause the Court advocates the best advocates develop a short of the Marshall and Taney Courts were also mantra, which as the theme of politicians or engaged' in life. The their As John Nields in year after he argued .McCulloch v. Maryland United States v. Hubbell: 58 principle is with Webster and Wirt as his co-counsel, whether relying on the truth-telling of was elected a United States Sena­ the witness to find out that the document ex­ tor from Maryland. of course, served ists. That's the principle. . . . truth­ '-''-'''''''''''';) as a Representative from telling. . . . compelling a person to and and then tell the truth with the consequence that he years as a United States Senator. Martin you have a Fifth Amendment general of on and off In our era's a forty years; Wirt was the Attorney mantra can be even "It's the economy, General of the United States for twelve years; and Jones served as the Attorney of the United States for the District of Columbia for Evolution toward Written years. In terms of style, rhetoric in the As as the different forms of argu­ earliest years of the Court's history hewed ment tended to be in the Marshall Court years, to an overtly form of address- there was no sound reason they could not your most humble "obedient servant" be presented in written form. The the norm-and that style appears to have often steadily wore been of Supreme Court arguments iJalJC01Ill"C. Even the most skilled as well ss That characteristic also evolved. advocates were not the Justices' pri­ In the nineteenth century, political vate impatience with extended oral arguments. rhetoric was marked by greater ChiefJustice Taney, for believed that argument by exclamation point, with an elabo­ Martin was a lawyer," but nonethe­ rate formalism. Eloquence· less complained that he "introduced so much not the treasured attribute extraneous matter, or dwelt so on unIm­ of the politician.56 In his famous that portant tllat the attention was apt to led to the Missouri for example, be and withdrawn, and the logic and Pinkney many ofthe same force of his argument los1.,,60 tools he used as a Supreme Court Story also complained at times of the texts of the Decla- and quality of oral argu­ Articles of Confed­ ments. he could be seen use of logical syl­ writing. The advocates probably and minor was taking notes on their argu­ to the history of ments, which likely caused them to embel­ ancient and Athens, which de­ lish still further the point they were trying to 12 JOURNAL OF SUPREME COURT HISTORY make. he was writing verse while Iis­ tions that had marked Supreme Court practice -"to any ca- up to that time. C!~~,"'''l\'

The Dred Scott case at­ tracted as advocates many leading luminaries of the bar, including Montgomery Blair (pictured), who took Scott's case pro bono, hav­ ing arranged for others to pay for court costs.

to any other book or case not ref­ Scoll drew as advocates some of the leaders erenced in the points and and in­ of the Court formed the bar that the Court would proceed Johnson, Montgomery Blair, ex parte with the ifcounsel for a party eventually, T. Curtis. Blair took did not conform to this rule68 and most Scott's case pro bono, arranged for the the rule provided that "no counsel , court costs to be picked up by others. Johnson will be in the argument of two John any case in this court, more than two hours, who claimed to be Scott's owner and without the leave of the court, master. At the was a United States before the Senator well known for his stance. Such Johnson would subsequently become a Senator in numerous cases in years. from Maryland, The Dred Seol! case was one such example70 The case was twice. The first Likc other great constitutional cases, Dred In each counsel received three 14 JOURNAL OF SUPREME COURT HISTORY hours of time. (At that point) Curtis contributed to the concentration in the was not involved in the The parties also WaShington-Baltimore corridor ofthe filed written Blair's brief for Court advocates of the from Scott was Martin and Pinkney to Jones and Webster. magnitude, running to a mere eleven printed As a fledgling nation learning its way pages.71 After a the Court set the through the r-,.Hrmlf'V case for whether it tion to decide the case and, if it on the mer­ and the rise of industrializa­ its of whether Scott was a citizen of Missouri. tion, the United States had no need to Shortly before the re-argument, Blair filed two follow at the Bench for cases more one of eight pages, the other of in the Court simply for the sake of Three days before the second argument, tradition, as the Court's rules had first prc­ Blair persuaded Curtis to participate-a not­ scribed. because Curtis's the rise of national­ Benjamin, was an Associate Justice. ism as a source for the evolution in the Court's In his argument, Curtis to rule ofpractice, there is no doubt that a growing Justice Curtis that Scott should pre­ sense ofAmerican vaiL Justice Curtis dissented and de Tocqueville in the I correspondence later wrote how cultural backdrop against which the Justices brother had been72 were deciding how to handle their workload. Thus, if a uniquely American form of could be devised illstead of blind adherence Toward a Distinctively to English customs, that was to be preferred. American Coupled with the expediency of accommodat­ Dred Scott thus illustrates that the Changes III travel across long distances and the rules to written briefs and limited oral of to extended oral arguments that were still somewhat slow to take ef­ decreasingly aided the Justices, the evolution the time ofthe Civil War, toward written briefs with diminished oral ar­ on written briefs marked time satisfied both the Court's need for a from just decades before. greater and the cultural The Marshall Court era had given rise of adapting American institutions to distinctly to some of the most important constitutional American concerns. cases the role of national versus state The outbreak ofthe Civil War, which both power. As that doctrine evolved to concentrate facilitated transportation networks for military power in the national government, the Court's purposes and exacerbated difficulties of at- were to reflect a more dis- sessions of Court for run-of-the-mill American mode of advocacy. The disputes, those various pressures to a ors of travel for the Justices who were required head. Over the next hundred years, the time al­ to ride circuit have been well documented.73 It lotted to oral wouId be shortened sti II was no less ofa nuisance for to travel further, from two hours per side to min­ to Washington, D.c. to their cases to utes per which today except in the when it was diffi­ the most unusual cases. But in none ofthe suc­ when an argument would be oftime would the manner and heard on the Court's docket. the era form of advocacy in this Court as dra­ of unlimited oral arguments, this problem matically as it did in the first half of the nine­ must have been a source of great frustra­ teenth century. In that period, as the grcat con­ tion for clients and attorneys alike. It also stitutional of American nationalism SUPREME COURT ADVOCACY 15

were debated and "See Thomas Lee, A Dictionary of the Practice in Civil moved steadily but away from the Actions, In the Courts of King's Bench and Common oral tradition and toward a uniquely Pleas, With Practical Directions and Forms (2d ed. 1825), In that volume, Lee offers a number of forms for American blend of written and oral advocacy. declarations and writs of crroc See id 449-50,646-66, lIlCollel v, Coliel, docketed February 8, I '" the assis­ Goebel, Antecedents and Beginnings, at 669, tance of J'v1eagan Jeronimo, II Goebels, supra note J0, at and Brian McConville, all of Kellogg, 126 Marcus, The Documentary History of the Supreme and which sup­ Court, at 119-26, 5 U,S, ( [ Cranch) xvi (Rule VllI, issued Febrlll.lry 4, ported my additional research and on 1795). this lecture, 146 Marcus, The Documentary History of the Supreme Court at 558 (citing 3 D~llas 25). IS/d, ENDNOTES 161d, at 603 (reprint of William Bradford, Jr. Notes or Arguments in the Supreme Court [February 23, 1795]), David Frederick, Supreme Court and AppeJ­ 17Kermit L. Hall, ed" The Oxford Companion to the late Advocacy: Mastering Oral Argument 14-49 (West Supreme Court of the United States 447 (1992); Richard 2003), chapter places present-day advocacy in histor­ B. Morris, John Jay, the Nation and the Court (1967); iea I contcxt. Sandra Van Blirkleo, '''Honour, Justice, and Interest'; John 2111 the 1790s, the ofthe Supreme Court were issued Jay's Republican PolitiCS and Statesmanship on the Federal by oftile Courlon an ad hoc basis, In 1803, William Bench," 4 journal oflhe Early Republic (Autumn Cranch compiled the firs! set of rules of the 1984). Court and published them in what is now 5 U.s. (I Cranch) 14 US, (l Wheat) xviii (J 816) (Rule XXlIl, issued xv-xvii, Henceforth, when a new Reporter of Decisions February Term, 1812), For a succinct overview of these was appointed, that Rcporter published a compilation of developments, Stephen M, Shapiro, "Oral Argument the Rules of the Suprcme Court as they thcn existed in in the Supreme Court: The Felt Necessities of the Time," the first volume of that Reporter's 14 U.s. [985 Sup, Cr Hisi. Soc, Yearbook 22-34. (I WheaL) xiii-xix (1816); 26 U.S, (I PeL) v-xi (1828); 19G, Edward White, fIl--IV The Oliver Wendell Holmes 42 US, (I How) xxiii-xxxv,ii (1843), From the Devise History of the Supreme Court of the United set ofCranch '$ rules, before being admitted to practice, at­ States, The Marshall Court and Cultural Change, torneys had to swear an oath in terms that are remarkably 1815-1835, 243 (1988) (quoting letter from W Wirt sim.ilar to the oath required ofattorneys in the day, to F Gilmer). 35 U,S, Cranch) xvi (I803) (Rule Vll, issued Aug. 20QlIoted in Theodore C. Waters, "Luther Martin," 14 [792), According to the official documents of the Court, ABA, J 605, 608 (Nov. 1928), the date given in Cranch '5 official report of 1791 incor­ 21 White, The Marshall Court, 230, and the actual dale the rule was issued was 22Samucl Tyler, Memoir of Roger Brooke Taney 66-67 1792, 4 Maeva Marcus, ed" The Documentary (1872), History of the Supreme Court of the United States, Walker Gilmer, Sketches, Essays and Transla­ 1789-1800, at 181 n, and 595n, (J 992), tions 27 (l 4See I Julius Goebel, Jr., The Oliver Wendell Holmes De­ 24Whitc, The Marshall Court, at 213-14, Emmet was not vise History ofthe Supreme COllrt ofthe United States: the only attorney to expire from an oral argument experi­ Antecedents and Beginnings to 1801, at (1971), ence, Accordmg to Justice William 0. Douglas, one ad­ 5M. vocate passed out in 1973 while arguing Fourth Amend­ 6Rules, Orders and Notices, In the Court or King's ment case, which was reargued the following week by Bench from Second of King James I to Hilary Term different lawycr. And another lawyer, Prew Savoy, insisted Ihe Fifteenth of King George II (1742), on arguing Soriano v, United Siales, 352 U.S, 270 (1957), TJ'he Practick Part of the Law: Shewing the Office even though he was in the last stages of lung cancer. He of An Attorney, and A Guide for Solicitors in All the died within 36 hours of arguing, leading Justice Douglas Courts of Westminster (1702), to H[HJe had lived with case a long time and Robert J, Martineau, Appellate Justice in England so keenly about it that he wanted to argue it cven on his and the United States: A Comparative Analysis 101-03 last day on this earth," William 0, Douglas, The Court ( 1990) Years, 1939-1975, at 181 (1980), 16 JOURNAL SUPREME COU HISTORY

25White, The Marshall Court, at 220 (quoting letter from 516 Daniel Webster, The Works of Daniel Webster, at 9 L Tazewell). ( 1857) 26Letter from Daniel Webster to Judah Dana. December 521d. at 12. 29,1804, XVI, 670, quoted in Maurice G. Baxter, Daniel .l3Henry Wheaton, Some Account of the Life, Writings, Webster and the Supreme Court (1966). and Speeches of William Pinkney 563-64 (J 826). 27S. W. Finley, "Daniel Webster Packed 'Em In," 1979 54McCufioch \'. Maryland, 17 US. (4 WheaL) 414-15. Sup. Ct. His I. Soc. Yearbook 71. examples of polittcal rhetoric of the see 28White, The Marshall Conrt, at Andrew W Robertson, The language of Democracy: 291d. at See Joseph Charles Burke, "William Wlrt: Political Rhetoric in thl' United States and Britain, Attorney General and Constitutional Lawyer" (Ph.D. 1790-190023 (1995) diss. Indiana Univ. 1965) ,l( 43-44 30Burke, "William Wirt," at 57Ar1llaisofCongress, 16th(ong., IstScss. 388-418(Feb 31M. at 80. 15, 1820). 32TI"IIslees 0IDarlmoulh College Woodward, 17 US. (4 58Uniled Slates Huhbell, 530 US. 27 (2000). Wheat.) 518 (1819). 59Unifed Siaies Hubbfi/, No. 99·,166. 2000 WL 230530 17 U.S. (4 Wheat.) 122 ( 819) at '23 (Feb. 22, 20(0); general/v Frcderick, Supreme 34 U.S. I (4 Wheal. J (1819). Court and Appellate Advocacy at 140-4 J . 1519 (6 Wheat.) 264 (182 J). 60Ty1cr, Memoir of Roger Brooke Taney, 66-67. I) 1)1 William W. Story, ed., 1I The Life and Letters ofJoseph Story, (1851). 621d. at 90

39ProprieIOrs o/" rhe Charles River Bridge F. Proprierors 634 Albert Beveridge, The Life of John Marshall, at 83 o/fhe H0rren Bridge, 36 US. (II Pet) 420 (1837) (1919). 411J P Kennedy, Memoirs of the Ufe of William 6OSe!! 42 US. (I How.) at xxxv (Rule issued .Ian. Term, Wirt, at 342-43 (1849). 1833 ). 4lWhite, The Marshall Court, at 208. See also Stephen 6SId. i\1. Shapiro, "William Pinkney: The Supreme Court's Gerhard Casper and Richard Posner, The Workload Greatest Advocate," 1988 S. Ct. Hlsr. Soc. Yearbook, at of the Supreme Court 12-13 (1976). 40-45. 6?Hall, The Oxford Companion to the Supreme COllrt 421 US.316(1819). ( 1992) 43Douglas, The Court Years, at l78. Jones has attracted 48 US. (7 How.) i (1849) (Rule 53, issued Jan. Term less attention from historians, but in one memorial fa­ 1849).Seealso I US.(I0How.)v(185J)(RuIe58,issued vorably compared to Webster, Wirt, and Reverdy Johnson Dec. Term 1850, establishing that the printed argument as "the quickest, brightest, and probably the acutest !

JONATHAN LURIE

It can be distinction sometimes results from a Justice

raised counsel. If this is true, who, then, is the The successfuI advocate is one who can court as to the soundness of the position he or she takes. The Justice gets the while the attorney gets the fee. But a great advocate besides cases? This article examines aspects ofJohn Campbell's career, in what may be called "the case of the creative advocate." It will focus in on the case he ever the 1 and will draw on the recent book I coauthored with Ronald Labb62 At the outset, it should be noted that John John Campbell has four additional claims to is one of the more unique serve on the Court. This is not In the first Cambell is the only to the fact that he from the Justice ever to because his state se- Court and later returned to although in 1861 the Court was heav- number of othef Court Justices have Southern in judicial as well taken such a step, and two may be mentioned as viewpoint. No other Justice followed here. Curtis served with Campbell their Southern not withstanding. and, after his also went on to ar­ Further, Campbell is the ex-Justice ever gue a many cases before his old tribunal. to be federal authorities for Curtis, it be noted, had been one of several months, and ultimately pardoned by Andrew Johnson's his impeach­ a Chief Executive this case, Andrew ment and later declined an appointment Also, he appears to be the only Jus­ from this chief executive to be tice to have attended West even though his Attorney General. Closer to our own era, he did not graduate. It is not the function of Abe Fortas immediately comes to mind.3 But historians to on "what-if" types of 18 JOURNAL OF SUPREME COURT HISTORY questions, but one can only wonder what might War, he filled several posItIons within have happened had Campbell followed a mili­ Jefferson Davis's Confederate Cabinet. When tary career rather than one in the law. Finally, he the Confederacy collapsed, he managed to flee is apparently the only lawyer to have been ap­ to England, where he mastered British com­ pointed to the Court at the unanimous request mon law and became a distinguished barris­ of all the sitting Justices.4 Of course, from ter. Another of Fillmore's nominations failed time to time many individual Justices have con­ to receive even Senate consideration, let alone ferred with the Chief Executive about a possi- , a vote. ble appointment, but for the entire Bench to The judicial seat was still open when join in a written request that one individual be Franklin Pierce took office in March 1853. One selected is indeed unusual. of the most consistent of the Northern dough­ Campbell's nomination must be seen in faces to occupy the Presidency, Pierce readily the context of the futility and fiasco concern­ acquiesced in the Court's "request"- and the ing President Millard Fillmore's three failed forty-one-year-old Campbell took his seat. He appointments. The second Vice President to had received unanimous Senate confirmation. succeed to high office because of an incum­ Campbell's background is no less inter­ bent's death, Fillmore had a difficult time deal­ esting than the path that brought him to the ing with Congress, particularly the Senate. Supreme Court. Born in Georgia in ]81], he One of his Supreme Court nominations went graduated "with first honors" from Franklin to Senator Judah Benjamin, who declined, College (now the University ofGeorgia) when Benjamin later resigned from the Senate when he was fifteen. He was then appointed to the his state, Louisiana, seceded. During the Civil Military Academy at the behest of John C. Calhoun, a friend of his father, but before he could graduate the older Campbell suddenly died. Campbell did not do that well at the Point, but apparently neither did Ulysses Grant. At the age of seventeen he taught school to raise funds so as to payoff family debts; in 1829, at the ripe old age of eighteen, he was admitted to the Georgia Bar. For reasons that remain unclear, Campbell chose not to remain in Georgia. Instead, he moved to Alabama shortly thereafter, and there his career flourished. He turned down two nominations to the Alabama Supreme Court and argued many cases before this tribunal. He may have actively sought the nomination to the Supreme Court; as has been noted, others cer­ tainly did on his behalf5 The Senate confirmed Campbell within four days after receipt of the nomination. Campbell 's stint on the Court was rela­

IV1ILL.A.R D ;FILLMOR.~ tively brief-barely eight years. Indeed, his The last Whig to be President, Millard Fillmore tenure was about as long as that of Chief had such a difficult relationship with the Democrat­ Justice Salmon Chase, before whom he argued controlled Senate that all three of the candidates he proposed to fill Justice John McKinley's seat were in 1872 and 1873. It is, I think, fair to state that rejected. Campbell was not a particularly distinguished EX-JUSTICE CAMPBELL 19

Fillmore offered a Supreme Court seat to Senator-elect Judah P. Benjamin, but the Louisiana lawyer preferred to go through with his elec­ tion to the Senate. Had Benjamin accepted the nomination in 1852, he would have been the first Jewish Supreme Court Justice.

jurist. For example, he wrote no major opin­ that his financial rewards as Justice were far ions that have endured in significance, and he from what he earned as an attorney. Camp­ concurred in one of the more infamous de­ bell had some inconclusive contact with Sec­ cisions in Supreme Court hi story, the Dred retary of State William Seward shortly before Scott case6 On the other hand, his concur­ the Confederate attack on Sumter. Why Seward rence was far more circumspect than that of and not Lincoln? In the first few months of Chief Justice Roger B. Taney. Campbell held Lincoln's administration, Seward tried to per­ simply that Missouri law controlled that case; suade as many as he could that he, and not therefore, Scott remained a slave and could not the recently elected President, represented the sue. Campbell believed, however, that slavery .brains, savvy, and power in the new administra­ would evolve into extinction, and that seces­ tion. Seward soon learned the real truth, how­ sion was hence both unwise and unnecessary. ever, and ultimately became one of Lincoln's He freed his slaves before the war broke out. most trusted supporters-and a close friend as Campbell resigned from the Supreme wel!.7 Court in April 1861. He appears to have Campbell served as a less-than-effective given no specific reasons. Possibly it was a assistant secretary of war under Jefferson sort of loyalty to his state, possibly a belief Davis. By 1864, he seems to have been com­ that he could be more effective at home than mitted to gaining an end to the fjghting, but in Washington, D.C., possibly an awareness without surrendering the two essential and 20 JOURNAL OF SUPREME COURT HISTORY

for him to resume and rebuild his law prac­ but Campbell also benefited from the Test Oath decided by a badly divided Court in 1867.8 His case was very similar to that of the Dlaintiff in Ex parte Garland. He had ai­ resumed his within his newly adopted state he had relocated on his return to the South in 1861. To oppose secession was one thing, and Campbell had. To in abolition was another-and Campbell had. Yet for the restoration of the old but with its sense of place and intact, and this to be as he reconstructed his law prac­

nt-process of Reconstruc­ tion led him to use his considerable skills as an President Franklin Pierce (pictured) made a good attorney to hinder and restrict its course when­ choice for his one and only appointment to the Supreme Court. Forty-one-year-old John Archibald ever he could. anger can be better Campbell of Alabama was II nationally respected understood if one looks at his perspective. He trial lawyer who favored state's rights but also sup­ had suffered much. ported improving the lot of slaves. He was promptly confirmed. Court Jus­ at least two occa­ sions with the who was Confederate by many contemporaries as an and distinguished was one of the three Confederate represen­ very law tatives who in the fruitless ne- rest of his property with Lincoln at Roads, Union troops, who had been confined in Virginia. Alone among the Cabinet-and at and who had finally returned to his considerable risk to his own new home in New Orleans only to see his old awaited Union forces in Richmond after the world turned upside down. One can understand had surrendered and had been abandoned he have had a sense of angry re­ the Confederacy. He may well have met with sentment. From 1869 to I as one scholar Lincoln during the President's very short has the unifying theme of his newly visit to Richmond. What between the reestablished legal was "his intense two men is unknown. and ardent to Reconstruction"­ But Lincoln's assassination by John one which specifically included the new role Wilkes Booth changed the entire that African Americans now seemed destined Arrested and for about four months to play in it9 after the assassination, Campbell was released This former Supreme Court by at the request ofJustices Benjamin writes Professor Michael "was a bit­ Curtis and Samuel Nelson. He was also par­ ter, hate-filled man." "We doned. The President's action made it Campbell, "Africans in place all about us. EX-JUSTICE CAMPBEll 21

Justice Campbell's tenure on the Court was cut short after eight years when he re­ signed in 1861 to serve as assistant secretary of war for the Confederate States of America. Although person­ ally opposed to secession and the war, he felt duty­ bound to join the Confeder­ ate cause,

post office custom weapons of choice. His ultimate how­ house officers and day by day they barter away ever, were not that different from the Ku Klux their and duties. In Klan and its ilk. Like he to de- tion is the rule."lo But these conditions re­ hinder and obstruct Reconstruction mea­ flected a poured out his sures wherever possible, But he to do bitterness to his old friend and so not the robe as much as through Justice Nathan Clifford. "We are the writ He returned to the courtroom, where fast losi ng all of our ancient notions of what is starting in 1868 he "launched [a ofob­ becoming and fit in administration. The public structionist law suits," as Michael Ross has are tolerant of corruption, maladministration, recently shownP The most famous of these partiality in courts, worthlessness and were, of course, the Cases, A government only as a means ofexploita­ few words ofbackground about them might be tion. Indifference to appropriate here. common dissatis­ The case arose in the wake of actions faction, complaints, even insur­ undertaken the reconstituted and rection would be better than the insensibil ity racially Louisiana that seems to "11 1869, The 1869 statute was Unlike many of his Louisiana contem­ several innovative proposals Campbell did not turn to violence, body, and in the eyes of conservative, white intimidation and terror, Those were not his males-the vast of whom refused 22 JOURNAL OF SUPREME COURT HISTORY

Campbell risked his own safety to stay in Richmond and await Union forces after the city had sur­ rendered. Pictured is the Richmond residence of Jefferson Davis and the ta­ ble on which General Lee signed the surrender. Gen­ eral Edward Ord and his wife and child occupied the mansion when this photo was taken in 1865.

to have anything to do with the Republican the city where they might be less of a threat "reconstructed" administration- they were all to public health. Indeed, even as the Civil War equally offensive. It made little difference if drew nigh, a local regulatory statute had been they involved the newly freed slaves, which proposed to the city fathers, one very similar the Slaughterhouse Act did not. to the law that would ultimately be enacted The manifest hostility of white opponents in 1869. In other words, as both New Orleans to the statute notwithstanding, it would be a se­ and Louisiana headed towards Reconstruction, rious error to regard the Slaughterhouse Act of slaughterhouse reform had been debated, dis­ 1869 as just one example of many that might cussed, deferred, and defeated for more than a be offered of alleged Republican skulldug­ generation. What apparently was needed in the gery and corruption within the reconstructed context of 1868-69 was an aggressive group of South. Although it was indeed the product of entrepreneurs willing both to take risk and to a Reconstruction legislature and thus in itself seek profit. In post-Civil War New Orleans, suspect to white Louisiana regardless of con­ such groups were not hard to find. tent, the new legislation in fact represented In return for building and equipping a cen­ the culmination of longstanding efforts to re­ tral abattoir large enough to accommodate the form the sanitation practices in New Orleans. needs ofall the butchers who would use it, a se­ The state of sanitation in the Crescent City lect group ofseventeen individuals were given was well described by an observant contempo­ the exclusive rights to operate this facility. Af­ rary as "one long, disgusting story ofstagnant ter the statute took effect, beef could be sold drainage, foul sewerage, environing swamps, anywhere the seller desired, but it could only ill and unpaved streets, no sanitary regulations, be slaughtered in the centralized slaughter­ and fi Ith , endless filth everywhere. ,,13 For at house. Further, the statute not only stipulated least one generation, reformers had urged that what fees could be imposed by the new cor­ the slaughterhouses be relocated to an area of poration, but also provided heavy penalties if EX-JUSTICE CAMPBELL 23

Campbell poured out his bit­ terness about the difficul­ ties of Reconstruction to his old friend and former col­ league Justice Nathan Clifford (right), a Southern sympa­ thizer from Maine. Now liv­ ing and practicing law in New Orleans, Campbell wanted to return to the gentler ways of the old South-albeit with­ out slaves. Below, newly freed slaves are pictured rioting in New Orleans in 1866. 24 JOURNAL OF SUPREME COURT HISTORY

This extract from the reconstructed constitution of Louisiana shows rw•• m'.·n..... the 1868 Louisiana Constitutional Convention. The racially integrated ofOoosals in 1869, including an act providing for a centralized to use. Although the act had nothing to do with R";Cll~l.trHrt offensive conservative since it came from a "reconstructed" Republican leglSldinne. EX-JUSTICE CAMPBEll 25

ious to win for his butchers. in for the Slaughterhouse Act of I Campbell took apparent aim at a statute that his clients believed was inimical to their interests. In however, he had a More otfensive to Campbell than the statute, I suspect, was the process and at­ mosphere of and government by imposition that had enabled such an act to become law in the first Reconstruction itself. Given the fact that the pre­ by both state he had to fi nd Slaughterhouse legislation had long been debated in New Orleans. The state of sanitation was so bad that a new strategy with which to attack the reformers urged that the slaughtering of animals be 1869 statute, as well as to attain his deeper located in a part of the city where it would pose less of a public health threat. He chose as his weapon the recently ratified Fourteenth Amendment. He butchers were denied use ofits facil­ sought to the new constitutional re­ ity. Organized, articulate, and ap­ alities of Reconstruction as a legal weapon parently the butchers went into the process and thus to hasten its attack mode as soon as the act became and ultimate demise. And so he worked to hundreds of lawsuits seeking relief not only the new Thirteenth and Fourteenth andlor its reverse were filed. Amendments, but also the enacted In state courts, Campbell first focused on Civil Act of 1866 to his clients. The the alleged corruption of the legislature. But of his choice of weapons was not lost this tactic did not work in part because of on the local press. "Few " noted the legacy of Fletcher v. which the "would have dreamed ... had been decided in 1810. 14 In this case, Chief it ... necessary to appeal to the Civil Justice Marshall declined to look at legisla­ Bill to protect the rights of the people in this tive motive or to explore the issue of or any other Southern from invasion."16 ble Further, innuendo But the remedy for current conditions was not 's rested In the federal courts, and angrily demanded that if there was criminal there employing as an antidote for collusion enactment of the slaugh­ (sic)." 17 should provide the that com­ names, and other pelling butchers to only in a cer­ such evidence. IS This was impossible. tain and only upon payment to a favored once moved into federal court, he group of individuals was an illegal case of dis­ abandoned the issue of corruption. In fact, crimination the inherent of an had found another field in American citizen. Quoting-and occasionally which hecould sow some new ideas far beyond misquoting-from a wide of sources, Louisiana law. he also denounced the monopoly the In Campbell's arguments in chosen seventeen individuals under the new federal court, attention should be to law. He could have been familiar with Justice dual motive. He certainly was anx­ Field's very recent opinion in the Test 26 JOURNAL OF SUPREME COURT HISTORY

Oath decided in 1867. In Cummings v. else to turn but to the federal courts, Field had that as part of intervention. In order to attain certain inalienable he proposed to recast and redefine honors. all are alike open fo evet:v federal Union, the national one, and that in protection all what he once had so strenuously equal the luw.,,!8 one should denied it--dominant power over the states. note the of these landmark cases troubled not! for personally. His weapon here was the first section In 1867, with the Fourteenth Amend­ of the new Amendment-the and ment Field had relied Due Process, and Equal Protec­ on "certain inalienable Unlike Field, tion clauses. wrote tbat the new I had more specifics upon which to amendments "go very far to determine that draw. In terms of the Thirteenth the Constitution. , . creates a national govern­ he added that the Louisiana statute was nothing ment and is not a federal compact."20 The ve­ less than a crude cause of subservience and of hicle through which this llew power would be involuntary servitude. Campbell was too able exercised was, of course, the federal courts, an not to realize that insistence that for whom, an Amendment involuntary servitude , the current abuses and mis­ be applied to his white butchers might not be a eries of reconstruction could soon be miti­ argument. Nor was it, one suspects. if not eliminated. His for his But most important for him was the Fourteenth cause comes through in the of his Amendment. Here Campbell sensed a possi­ brief: woe! To this country if bility of new judicial he these tribunals falter in the performance of went for it. He insisted that this new enact­ their duty,,,21 ment protected his clients from the blatant at­ And thus first before the tempt by the state ofLouisiana to interfere with state courts in Louisiana and ultimately before the privi of the with a sense Even as of that reached far the imme­ impact of the Fourteenth Amendment for his diate case. The results are so well known that it butchers, he claimed in another case that it also is unnecessary to go into great detail here. He protected the right ofhis client, a theatre owner, almost won: the Court his argument to his audience. seems to by a vote. But he had concentrated on have been far less interested in what what he believed the Amendment rather the amendment imolied for the newlv freed than focusing on a more balanced analysis of African American than in what it offer it had been .,';rmlp'; Absent from his argu­ to white Southerners Reconstruction. ments was any But the to pursue one's chosen its road to extinction, and the plight of the ex­ was for slave in the South between 1865 and 1873. Abandoning states' behalfofwhicb Campbell's first he had seceded a decade before-and using the conditions that had led to act the Amendment as his mouthpiece, Campbell during the spring of 1866, when the new en­ a new sense of federal authority, actment went to the states for ratification, and the state as never before. the dramatic implications for tradi­ He had in of course, the Southern states tional federalism under under Reconstruction, Louisiana. tation. They called attention not so much to had lost before the Louisiana the .vords as much as to what believed the Court. !9 In one sense, he had nowhere Framers had intended. USTICE CAMPBELL 27

ditions which had led to adopt the Fourteenth Amendment. and he was unable to

"p,croP1\!P in it what had with the exception of the who were not in this case. Three brief excerpts from Miller's opin­ ion should be noted. Miller summarized the events to adoption of the post­ war amendments. "In the light of this reca­ he wrote, "almost too recent to be called but which are familiar to us all ... no one can fail to be with the one pervading purpose found in them all, at the foundation of and without which none of them would have been even we mean the freedom of the slave race ... and the protection of the made freeman and citizen from the oppressions of those who had exercised unlimited dominion over him. although Campbell represented the butchers in Slaughter­ house when their case came before the Supreme Miller conceded Campbell's point that others Court in 1870. He abandoned his states'-rights phi­ besides the former slaves fall within the losophy to argue that the federal authority of the Four­ Amendment's he insisted on under­ teenth Amendment should predominate over state legislative actions. Campbell lost his case by a sin­ the fundamental purpose that had in­ gle vote, but his vision of the scope of the Fourteenth the enactment. "What we do say, and Amendment eventually prevailed. what we wisl1 to be understood that in any fair and just construction of any section or Refusing to conclude that in the Four­ phrase of these amendments, it is necessary to teenth Amendment had look to the purpose which we have said was the such a of the traditional federal sys­ spirit of them the evil which tem as was asserted Campbell, a five­ ~'~"'''&''VU to ,m Was it "intended member majority declined to catch Campbell's within the power of Congress the en­ The for the Court was .Justice tire domain ofcivil heretofore Samuel F. Miller, who had once practiced exclusively to the States?" Was the Court ex­ medicine and was very familiar with both to become "a perpetual censor upon all and sanitation neces­ of the on the civil of sities in an urban environment. Miller vindi­ their own citizens?" Declining to slide down cated the statute as a police measure, harsh, the slippery slope as described by Campbell'5 but with 's opponents Miller ultimately put the very to follow a career as a butcher simply: "We are convinced that no such results did not imply an inherent right to slaughter were intended by the which proposed one desired. He also the these nor by the States which claim that public policy had ratified them.,,24 the of One finds a sense of in Miller's through the granting of exclusive privileges to words. His majority opinion looked back undertake certain activities beneficial to the at what once had been. public interest but that government was unable other anticipated a new or disinclined to initiate. He explored the con­ fined and dominated the federal 28 JOURNAL OF SUPREME COURT HISTORY

Perhaps Miller believed that this case simply Americans. But what about its broad word­ did not lend itself to a good analytical defi­ ing? And what about traditional federalism, nition of what privileges and immunities in­ under which, as Professor Les Benedict put cluded. Whatever they might be, he was confi­ it, "primary responsibility for governing rela­ dent that they did not extend to white butchers tionships among Americans and for protect­ bickering over where they could slaughter beef ing their rights from infringement ... would re­ in a dense urban environment. main with the states,,?27 Campbell invited the Seeking to clothe what Miller believed Court to assume vast new powers over state to be a less-than-significant issue in the im­ legislative actions. In 1873, Miller's majority pressive raiment of a new, boldly innova­ was not prepared to do this. tive, and controversial constitutional doctrine, However, by 1890, the year of Miller's Campbell had insisted on the applicability death, the Court had taken this step, with his of the Fourteenth Amendment to the white halting, seemingly uncertain concurrence.28 butchers. Further, he had distorted the mean­ Indeed, within four years after Miller's 1873 ing and clear language of the 1869 statute, opinion in the Slaughterhouse Cases, the Court claiming that it barred his butchers from ply­ had begun to move in the direction delin­ ing their trade, when in fact it limited where eated by Campbell, even if Miller could not beef and pork were to be slaughtered-a see it. 2Y In the 1884 sequel to the Slaughter­ very different matter. He might have been house Cases, he demonstrated how limited he on firmer constitutional ground in his anti­ considered his earlier opinion to be. Placing monopoly stance. Yet even here, Miller and the another Louisiana statute (one that, inciden­ majority refused to accept his claim. Instead, tally, repealed the original monopoly under the they apparently accepted the opposite side's re­ Slaughterhouse Act of 1869 ) strictly within buttal of Campbell's antimonopoly argument. the state police power, Miller added what can A monopoly, noted Charles Allen (soon to sit only be described as an intriguing afterthought: on the Massachusetts Supreme Judicial Court), "which is all that was decided by this court in represented "an exclusive privilege, granted the Slaughterhouse Cases.,,30 without consideration. ,,25 Such was not, he Besides rejecting Campbell's argument, insisted, what existed here. In return for the Miller may in addition have resented not only grant, the company had to expend large sums Campbell's resignation, but also his continued of money to purchase the land, build the facil­ zeal for the late rebellion. Miller offered a num­ ity, and stock it with all the necessary accou­ ber of private observations about Campbell trements common to a slaughterhouse. Tn a real in correspondence with William P. Ballinger, sense, Allen argued, the proprietors were un­ his brother-in-law. In Miller's opinion, by re­ der a compulsion every bit as stringent as that signing to aid the Confederacy, Campbell complained of by Campbell's c1ients 26 had supported and assisted those involved in Hindsight often serves as a wonderful "overthrowing a government he had sworn to crutch for the legal historian, freely avail­ support and in whose service he held one of able to all who can benefit from its po­ the highest posts of honor his country had to tential support. And in retrospect, it seems give. ,,31 Miller mused that "no man that has clear that the Slaughterhouse Cases repre­ survived the rebellion is more saturated today sented an inappropriate judicial vehicle by with its spirit ... [HJe deserves all the punish­ which to explore the meaning ofthe Fourteenth ment he has received or can receive, not so Amendment for the first time. Both Camp­ much for joining in the rebellion as for the bell's rationale and rhetoric placed the Court persistency with which he continues the fight in a difficult position. None could deny that when all good men ought to seek to forget it the Fourteenth Amendment certainly was in­ as much as possible.,,32 Was Miller perhaps re­ tended to apply to the newly freed African ferring here to Campbell's repeated invitations USTICE CAMPBELL 29 to the Court to exercise the type of had indeed altered-forever-the traditional had called for in the concept of federalism, But it fell to Justice Slaughterhouse Cases? Furthermore, Miller Joseph P. Bradley (a graduate, it had heard of no action by aimed at be and not Miller to articulate the po­ the breach he contributed so much to tential in the new Amendment. "It is make. To the contrary, "he has made himself Bradley noted, "to argue that none but persons an active leader ofthe worst branch ofthe New of the African racc are intended to be bene­ Orleans Writing their fited by this new amendment, mentos, their cases in our and indeed have seen their travails as the showing all the evidenccs of a discontented cause," but the "is general, embrac­ and embittered old man, filled with all the dis­ all citizens and I think it was purposely so ntn.pnto ofan unsuccessful partizan expressed,,,:;7 "34 Another de­ Within his own lifetime, scribed Campbell during one ofhis last appear­ Court move towards ances before his old Court: "He has neither the due process into the Fourteenth Amendment. presence, voice nor tongue of the orator, but But he would not live to see future members when he in his thin, measured tones, of the Court on which he had once sat never wasting a word, the Supreme Court of and uncertainly accede to his insistence con­ the United States Jistens as it listens to almost cerning the of the amendment's no other man, scope, even as often denied its What be said of these contrast­ to blacks, Yet ing assessments? Miller's harshness towards his contention. in I as it might be matches the is well known, the Justices embarked on what harshness Campbell had in his own Justice Cardozo described twelve of Reconstruction in the South. years later as a course which vari­ And while I feel that Miller's comments are of the Bill of have been with the the Fourteenth Amendment pointed by a process of ,,38 Plaintiffs and defendants from the a bare was unwilling to fol­ tion of have now been within low it. Thus, in yet another ironic twist of the Blacks and other minorities­ Slaughterhouse there may be a sort of women, with whom Campbell was perverse vindication in our later history not concerned-are now routinely for Campbell after all. Here is what he wrote of within the rubric he framed in 1873, If his the Fourteenth Amendment, even as he point ofuniversality did not receive to harness it to an unsuccessful attempt to beef then, in a much broader judicial context it has up his butchers' cause, The new provision, he since-and for much better causes, wrote, "is not confined to any race or class. It Of course, the extent of the comprehends all within the scope of its pro­ 'Fourteenth Amendment's coverage has not visions., The mandate is universal in its ap­ been definitively set forth, Can it ever be? to persons of every class and every One thinks of the observation of condition of persons, In rhetoric, at Lawrence who reminds us that a recognized the importance ofrace­ basic goal of our legal history is that we con- even though he insisted that it had to be aware of a that the do with his clients. Nevertheless, this is a no­ ble albeit one Campbell had employed never it is in a much less than noble cause. And four Jus­ incomplete, always a work in tices his insistence that the enactment progress, a work that is never done."4o 30 JOURNAL OF SUPREME COURT HISTORY

And so we return to the question raised argument anticipated what Campbe ll himself would later at the outset. Was Campbell a great advocate? claim in th e Siaughierhouse Cases. His contemporaries certainly thought so, and 9See Michae l A. Ross, " Obstructing Reconstruction: John Archibald Campbel l and the Legal Campaign against even Miller acknowledged his considerable Louisiana's Republican Government, 1868-1873," in legal skills. More than a century after his XLI X Civil War His/Oly (2003), 23 5-53. death, he can be remembered for pointing the IOlbid.. 2 41~ 2. Court in a new direction with regard to con­ IICharles Fai rman, Mr. Justice Miller and the Supreme stitutional interpretation- one in which it ul- . Court, 1862- 1890 (Cambridge, MA: Harva rd University Press, 1939), 180. Fairman's work has been very wel l sup­ timately moved with benefits far beyond both plemented, ifnot surpassed, by Michael A. Ross's Justice what he argued and what he probably desired. of Shattered Dreams: Samuel Freeman Miller and Is this enough? Each generation has its own the Supreme Court During the Civil War Era (Baton definition of greatness, shaped not only by its Rouge: Louisiana State Un iversit y Press, 2003). own perception of the past but also by what 12See Ross, " Obstructing Reconstruction, 244." it ex pects the future will make of the individ­ 13See L&L, chapters two and three, wherein the long ef­ forts to bring about improved sanitation in greater New ual considered to be great. "But sir," asks the Orleans are di scussed at some length . This quotation is military aide to General Burgoyne in Shaw's from Dr. Stanford Chai ll e. fhid. , 35. play The Devil s Disciple, "[w]hat wiII history 14Flelcher v. Peck, 6 Cranch 87 (lSI 0). say?" To which Burgoyne repl ies: "H istory, sir, 15See L&L, chapters 5 and 6, for information on the various will tell lies, as usual."4 1With regard to Camp­ state-court lawsuits dealing with the IS69 Slaughterhouse bell, the jury may still be del iberating. Per­ Act. 16L&L, 143. haps its ultimate verdict has yet to be rendered. 17lhid., 14 3. Beyond that, 18See note 8. 19fhid., 127-35. " this deponent sayeth not." 20fhid. , 18S. 21See Campbe ll's Siaughierh olise brief, cited in L&L, ENDNOTES 113-14. 2283 U. S. 70-71. 183 U.S. (16 Wall) 36 (1873). 23 Ihid., 72 . 2See Ronald M. Labbe and Jonathan Lu rie. The Slaugh­ 24fhid. . 78-79. See also L& L, chapters 8 and 9. terhouse Cases: Regulation, Reconstruction and the 25Cited in L&L, 204. Fourteenth Amendment, (Lawrence: Univers it y Press of 26 L&L,204 . Kansas, 2003) (hereafter L&L). 27Cited in L&L, 246. JSee Laura Kalman, Abe Fortas (New Haven: Yale Uni­ 28See Ch icago. Milwaukee & Sf. Paul Railway Co., v. versity Press, 1990), 3 7 0~01. Minl1esola, 134 U.S. 418, 459 ( 1890). 4See Ju stine Staib Mann.. The Political and Consti­ 29See MUlln v. fIIin ois, 94 U.S. 113 (1877). tutional Thought of John Archibald Campbell (Ann 30Cited in L& L, 238 (emphasi s added). Arbor: University Microfilms, 1966), 14. 31Fairman, 352, 363. Sfbid .5-14 32 1hid. ('60 US. (1 9 How.) 393 (1857). 33 fbid ., 352. 7See Phillip Shaw Paludan, The Presidency of Abraham 34fbid. Lincoln (Lawrence: Unive rsit y Press of Kansas, 1994), 35Quoting a Washington reporter in Clare Cushman, The 2 1-69, 168- 8 1. Supreme Court Justices (Washington: Congressional 8See Cummings v. Missouri, 7 1 US. (4 Wall) 277 (1867) Quarterly, 1993), 165. and Ex parle Garland, 71 (4 Wall) U.S . 333 (1867). Like 3oQuoted in L&L, 193. Garland, Campbe ll had taken an oath to support the Con­ 37Quoted in ibid, 228. federacy. The fedeml statute under review in th is case, 38 Palko v. COl7neclicul, 302 U.S. 319,325- 26 ( 1937). however, banned from future legal practi ce any lawyer 39See L& L, 193. who had taken such an oath. This statute was declared 40Bernard Shaw, Th e Devil sDisciple (Balt imore: Penguin unconstitutional by Justice Stephen Fie ld, who, even be­ Books, 1941 ), 73. fore th e Fourteenth Amendment had been ratified, pointed 41 Lawre nce M. Friedman, American Law in the to an inherent right to choose and practice one's callin g. Twentieth Century (New Haven: Yale Universi ty Press, Campbell could not know it at the time, but much ofField's 2002), 689. Louis D. Brandeis: Advocate Before and On the Bench

MELVIN I. UROFSKY

3,1916, members of the Bar Association listened as one of the best-known attorneys and reformers rose to speak to them. No one in the not even their guest of honor, knew that within a few the President of the United States would nominate him to become a member of the United States Supreme Court. In his speech that Louis Dembitz Brandeis out his views on the rapidly society, and placed much of the blame for social unrest and popular for the law on judges who refused to the economic and social developments place all around them: Political as well as economic and stitutionality of such statutes could these revolu­ find courts all too fre­ tionary quently declared the acts void the unwritten or The law has a

distinguished from to behind the facts of life. J deafand blind to them. Courts continued to arisen In the two decades before he gave this com­ and for the nearly quarter-century that he sat as an Associate Justice of the Supreme Louis Brandeis tried to ual and of the sacredness of private that the law they had to be viewed property .... Where statutes in the light of modern conditions, and that spirit in their had to take into account were constitutional, the social and economic facts of modern life, imbued with the relentless He did this both as an advocate before the individualism, often construed them bar and as a member of the nation's away. Where any doubt as to the con- tribunal. 32 JOURNAL OF SUPREME COU HISTORY

* Act One: The Lawyer as Advocate

From his youth, Louis Brandeis loved the law, Inspired his Lewis Naphtali Dembitz, a attorney as well as a brilliant legal scholar, from the time Brandeis entered Harvard Law School on 1875 until he retired from the Supreme Court on February 13, 1939, he never this and he gloried in the challenges and opportunities of the law, He entered Harvard one of its most times-that of the LangdeJlian reforms-and his instant infatuation with the law shone clearly in his letters home. "You have undoubtedly heard" he wrote to his brother-in­ law Otto Wehle, "how well I am oleased with that sister he declared "Law seems so At an early age, Louis Oembitz Brandeis was inspired to enter the legal profession by his uncle, Lewis N. to me in all its aspects; it is difficult for me Dembitz (pictured), 11 practicing attorney and a bril­ understand that any of the initiated should not liant legal scholar, burn with enthusiasm.',3 After compiling a record at the law Brandeis practiced in brilliance and enthusiasm for the law, Prob­ St Louis before to Boston to form lems with his eyes led him to hone his a successful with his law school formidable memory; during a trial he could re­ Samuel D. Warren, the scion of call all of the pertinent facts of the case on a a prosperous family, To moment's notice, His wide often made meet their expenses, the two took over the on a subject than 50­ of a periodical, but Brandeis made clear that above all he wanted to prac­ to various reports, was tice law, 1 am very desirous of de­ among the best ofhis time. and clients flocked voting some of my time to the part of to his office because. among other things. he the I wish to become known as a prac­ was one of the best legal technicians in the ticing ,,4 Success would not dampen country6 Years Me Justice this enthusiasm, Well after his abilities had himself an capable lawyer, declared been by he would write to his ofBrandeis, "My, how I detest that man's ideas, brother Alfred about his impatience during a But he is one of the greatest technical spelL "I really long for the excitement I have ever known, of the contest-that is a good one hmvever, was never a mere tech­ or weeks, There is a certain joy when the role ofthe attorney in the draining exhaustion and backache of underwent an enormous transition from sim­ a long trial, which shorter skirmishes cannot advocate to counsel,S he remained not only afford,"s an effective advocate for the interests of his Brandeis's success as a rested on but a model of how a well-informed several grounds, First, one has to note his sheer could guide and advise those clients. LOUIS D. BRAN ADVOCATE B AND ON E BENCH 33

Brandeis went out of his way to know as many attorneys who worked for him, but also with facts as about an and believed he of success-to before had to know as much about the areas whom he appeared. JO of the problem as did his clients. After all, why By any number Brandeis en­ should they come to him unless his joyed great success in his profession. He at­ and were greater than their own? tracted I enjoyed the In a chapbook he wrote: "Know of his peers, and in terms of income ranked each fact. Don't believe client witnesses. Ex­ among the top six moneymakers at the Boston amine documents. use imagination. bar and in the top group in the country. In 1890, Know universal language at the age of of business; know persons ... Know not only "'JV.\J'VV a year in current dol­ specific cases, but whole subjects. Can't other­ lars), while 75 of the lawyers in the wise know the facts. Know not only those facts country made less than annually. In which bear on direct controversy, but know 1912, when he devoted much of his time to all the facts and law that surround."9 These reform he still received over $105,000 lessons he never either as a lawyer or as living and COI1­ ajudge, and these lessons he taught not only to servative

Brandeis became one of the top moneymakers in the country when he practiced taw in his thirties. His fru· gal habits and wise invest­ ments eventually made him a millionaire despite his ori­ enting his practice to advo­ cacy and pro bono work. 34 JOURNAL OF SUPREME COURT HISTORY no income tax, Brandeis accumulated his first enough to take care of his obligations to his million by 1907 and his second before he went he needed to do worthwhile. onto the Court in 1916. Desoite the money by itself mattered little; and to his children and to what counted was that it gave him freedom to he died in 1941 leaving an estate of more than pursue other such as re­ $3,000,000. 12 form and Zionism. ls He first became involved in reform activities in the mid-1890s, when his clients hired him to represent them in * service such as the cleanup of the while a successful at­ institution for paupers in 1894. He ac­ torney, differed in many details from his co- the fees and then returned before To he would not take long, he was fees much to the a case unless he believed his client stood in the confusion of some of his clients. Both would-be clients well as those When Edward A. Filene tried to a bill on his roster would enter his deliber­ from Brandeis after the successful conclusion ately cold office and would then-with their of a a traction company, one that coats on-have to convince Brandeis that Brandeis saw as a to had a claim. If he agreed, he would Brandeis kept putting him off Filene finally prove a committed and ferocious if confronted Brandeis in his office, and later not, he would either refuse to take the case or wrote that Brandeis "told me he never made try to convince them to settle. He a a charge for public service of this kind; that it new oflaw that he termed "counsel to the was his duty as it was mine to help protect the situation," in \vhich he tried to all sides to public rights; and when J remonstrated, agree on a resolution fair to all their interests. that he and his family were upon This practice, while valued his income. he told me that he had resolved of his clients, upset and few at at least one hour a day to the time understood what he tried to do. As public and later on he hoped to give opponents at his confirma­ halfhis time."16 In fact, by 1914 Brandeis tion III 1916 complained that he had spent nearly all of his time as a reformer. and not defended their interests when they he pro bono work in the legal pro­ had hired him as their 13 fession. It is little wonder that he gained the 7 Other lawyers shared some of these sobriquet "the attorney." I traits in greater or lesser degree. What made Brandeis stand out is that he not mastered changes in the of law in his time, but * * also saw beyond that to the tak­ In the course of his commercial place in society. He believed fervently that Brandeis had cases that went to life and law could not be artificially the Court, beginning in I 896. 18 But and in an age of increasing the case that made his reoutation as one of the even within his own law firm-he refused to be great advocates before the Supreme Court and trapped by narrowness. According to his part­ that changed the way all future laVv'Vers would ner, Brandeis in every area ofthe law have to think in terms ofdefending or except criminal matters, and may have came about because of his reform even taken a few cases there. 14 work. It with a case in which In addition, while Brandeis had no objec­ he had no involvement, Lochner v. New Jor/(, a tion to 1905 decision in which the Court, bv a 5-4 de­ cision, struck down a state statute lOUIS BRANDEIS: ADVOCATE AND ON THE B

Members of the National Consumer's league (NCll, including Florence Kelley (third from left) and Brandeis's sister-in-law Josephine Goldmark (not pic­ tured), persuaded Brandeis to take on the Muller case on behalf of laundry workers. They provided him with reams of statistics about long workplace hours and their effect on women's health. At right is a NCl exhibit persuading consumers to buy only made under favorable working conditions.

a maximum of ten hours a for bakers. 19 At the time, reformers condemned the deci­ seeing it an impenetrable barrier to further enactment of protective legislation by the states. applauded the dissent Oliver Wendell in which he condemned the majority for deciding the case "upon an economic theory which a part ofthe country does not entertain .... The Four­ teenth Amendment does not enact Mr. Herbert np""p·r'c Social Statics.,,20 When Curt Muller, a Portland manager, an Oregon law estab­ a ten-hour for women workers in factories and laundries, Josephine Goldmark Consumers' League to defend the law. He and Florence Kelley to do so on two conditions: that approached Brandeis on behalf of the National he officially represent the State of 1I1 36 JOURNAL OF SUPREME COURT HISTORY court, and thus be in full of the hand tion; and that the Consumers' material, he was the exclusion or provide him with a massive amount of data on inclusion ofdetail, the order, the selectiven the effects hours on womenY the which marked his method. Once Brandeis had spotted a in the determined upon, it had all the spontaneity of majority decision in Loehne/: Justice Rufus a address because he had so mastered the Peckham had claimed that the New York details that they felt into place, as it were, in a statute did not represent a use of , consummate whole,,,26 the state's power, because no evidence The Brandeis brief drew a highly un­ had been presented to show that the bakers usual comment in the opinion by Justice David needed any such protection. He thus allowed Brewer: "It may not be in the present that the police power could be invoked to case, before examining the constitutional ques­ regulate working hours if it could be shown to notice the course of legislation as that conditions warranted the inter­ well as of opinion from other than ference of the state. Other reformers failed judicial sources. In the brieffiled Mr. Louis to see what Brandeis immediately D. for the defendant in error, is a Lochner did not have to be overturned but one very copious collection ofall these matters.,,27 had to establish a factual connection between The Court went on to unanimously uphold the the Jaw and the conditions of life that had in­ statute. voked it. not had to be The importance of this method of argu­ utilized, an idea that had permeated Brandeis's ing before the court cannot be overesti­ nrc>"tif'P as well as his reform work. He mated. Until Muller, counsel the old maxim that "Out of law in the abstract-that the facts grows the law," and later on would ence, as Holmes called it-without reference lecture his Brethren that "The of words to the reality of everyday life. Oregon had should to the of realities. passed this law because hours Long before he took on the case, affected the health of women workers. Brandeis had written, "A is presumed to fifty years the National Association for know the elements of but there is no pre­ the Advancement of Colored sumption that he knows the facts."24 Jim Crow laws that the facts of industrial life is what he affected the minds and hearts of black to do in defense of the Oregon law. people.28 More the Court His brief in Muller v, 25 as we all now heard two important cases from Michigan on know, consisted of less than three pages oftra­ affirmative action, and the briefs by both lit- ditionallegal citation and more than 100 pages and amici informed the Justices of the of from and govern­ importance, in real life, that affirmative action mental documents that Ms. Goldmark had col­ had in the lives of colleges and law schools.29 lected for all supporting the proposition Following his success in Muller, Brandeis that working hours had deleterious effects utilized the technique in defense of other pro­ on the health of women workers. As he later in both state courts and commented, the briefshould have been entitled the and he advised others on "What Fool Knows." how to prepare a "Brandeis brief." He suc­ In his oral argument, as recalled cessfully defended an Ohio statute regulating Ms. Goldmark, Brandeis "slowly, hours for women in both the Ohio without to refer to a note, built up his and the Court. I In his last case from the particular to the general .... It appearance as an attorney in the old Court was the result of intense preparation before­ chambers, he defended an Oregon law that lOUIS D. BRANDEIS: ADVOCATE BEFORE AND ON THE BENCH 37

established an Industrial Welfare Commission *** to regulate not only hours and safety condi­ Act Two: The Judge as Advocate tions, but also wages in factories. He won a unanimous decision in the Oregon court,]2 and Woodrow Wilson named Brandeis to the Court then argued the case before the U.S. Supreme in January 1916, and after a bruising confir­ Court on December 17, 1914.J3 We have an mation battle, the people's attorney took the eyewitness account of Brandeis's performance oath of office on 5 June of that year. Both that day, from Judge William Hitz of the Dis­ the President and many progressives expected trict of Columbia Supreme Court, and it is that the new Justice would have a great impact worth quoting: 34 on the Court, and would continue to advocate for a living law. 35 But few, I suspect, antici­ I have just heard Mr. Brandeis make pated how great an influence he would be, or one of the greatest arguments I have how effectively he would use his position-not ever listened to .... When [he] began to argue for specific laws or programs, but to to speak, the Court showed all the teach the facts of Iife to his fellow Justices. inertia and elemental hostility which Some of his admirers occasionally won­ courts cherish for a new thought, or dered if perhaps he overdid it. "If you could a new right, or even a new remedy hint to Brandeis," Harold Laski wrote to for an old wrong, but he visibly Holmes, "that judicial opinions aren't to be lifted all this burden, and without ora­ written in the form of a brief it would be a tionizing or chewing of the rag he great relief to the world. [Roscoe] Pound spoke reached them all and held even Pitney rather strongly as to tile advocate in B. be­ quiet. ing over-prominent in his decisions." Although He not only reached the Court, Holmes apparently agreed, there was little he but he dwarfed the Court, because could do. 36 it was clear that here stood a man Actually, the great majority of Brandeis's who knew infinitely more, and who opinions are succinct, a recitation of the facts, cared infinitely more, for the vital the law, and the decision. These are the 454 daily rights of the people than the opinions he wrote in speaking for the Court. men who sat there sworn to protect Whenever he wrote the majority opinion, he them. recognized that he did not speak just for him­ The reporter of the Court, Charles Henry self, and so he kept the holdings narrow, a trait Butler, told Hitz that "no man this winter had that also fit well into his philosophy of judi­ received such close attention from the Court cial restraint. But the great opinions, the ones as Brandeis got today." The Justices could not Laski apparently objected to, are almost all 3 reach a decision, however, and ordered re­ dissents ! There Brandeis spoke for himself argument. By then Brandeis had gone onto and whoever chose to join him, and he car­ the Court, leaving Felix Frankfurter to han­ ried on the same campaign that he had fought dle the case. The case was first argued on before donning the black robes-teaching the 16 and 17 December 1914; it was ordered re­ Justices that economic and social facts could argued on 12 ] une 1916, and oral argument not be ignored in interpreting the law. took place on 18 and 19 January 1917. The The achievements ofMr. Justice Brandeis Justices split 4-4, because LDB recused, thus in bringing the law into conformity with life are leaving the decision of the Oregon court in so numerous and extensive that we can only place but not establishing a binding prece­ touch upon them briefly in this article. The dent for future challenges to minimum wage story ofBrandeis and free speech, for example, legislation. would be an essay unto itself, as would the issue 38 JOURNAL OF SUPREME COURT HISTORY of privacy. So bear with me if I do not of the marketplace and the protection of la­ cover your favorite Brandeis for that bor, he bel ieved that should only ask you will have to await the book. if the legislature had the power to do so under If anyone that Brandeis would the if it did, then the wisdom-or have to wait a few Terms before he found his foolishness--of the statute should not be con­ they soon learned otherwise. In his first sidered. The massive did ad­ he wrote more than twenty opinions for dress ofthat question. When conservatives and dissented twice. In both dis­ like McReynolds dismissed protective laws out sents, he set out in great detail the facts that had of hand because they did not like the philoso­ led the to act as it did. In 1917, phy behind Brandeis felt he had to show he dissented in Nov York Central Railroad that the legislature had made a valid choice v. Winfield. His Brethren held that in the in exercising its powers. l\ebraska had had passed a statute the size ofa loaf of bread that the conservatives on the Taft Court struck down as an unwarranted interference lectured them on the in the market The Brandeis dissent ex- had to olav in this area, which Congress could why Nebraska passed the law, and in do­ not have meant to bar. ing so tells us more than we should ever want Just before the end of the Brandeis to know about the baking business.41 dissented in a 5·4 decision in which the ma­ Brandeis documented these opinions with jority struck down a state statute the help of his law clerks, one each Term sent private employment from to him "sight unseen" from the Harvard Law taking fees from workers for whom they found School Felix Frankfurter. At the time the The state intended that the costs should be Justices did not have individual chambers in borne the not pOOl' workers. the Capitol, and each worked out of his home. In the majority opinion, Justice McReynolds Brandeis had rented an apartment above his did not even mention the state had passed quarters on California Street where he this statute, or the evils it addressed. Brandeis had his library, and where he and his clerk entered a dissent that was, would work. Several of them told the same a Brandeis citing numerous state and story of laboring through the night to federal labor reports as well as law review the material by the articles-the first time any Justice had cited 5:00 or 5:30 in the morning an such materials in an opinion.39 At first the with their research notes under the door of the other Justices found such citations somewhat only to teel it taken and through and some viewed them as un­ from the other side. And several also rpnp""""l suitable for the Court. a comment Brandeis made But Brandeis on using them. Willard ten. After through several drafts ofan Hurst recalled how he and Brandeis used law the Justice would say, "Now 1 think review notes for one with the the opinion is so as not to to make it more "Mr. Justice McReynolds," Brandeis remarked with a "did not favor Law Review * articI es. ,,40 Brandeis believed in judicial restraint­ If Brandeis, of that is, that judges should not interoose their views of the wisdom of Il1 ter to legislative wisdom in matters of deciding the economic regulation, he nonetheless believed when the laws involved regulation that courts had a more active role to LOUIS D. BRANDEl ADVOCATE AND ON THE BENCH 39

Brandeis (right) joined Holmes (left) in the unan­ imous Schenck opinion and accepted Holmes's "clear and present danger" test. Brandeis's opinions in a series of free speech cases would influence his Brethren and transform the jurisprudence of the First Amendment's Speech Clause.

In the defense of civil liberties. When the in the Abrams case.44 He later explained this Court heard a to the 1918 Sedition shift when he told Felix Frankfurter "I have Brandeis joined Holmes in a unanimous happy about my concurrence opinion upholding the conviction of Charles (in ... I had not then thought the is­ Schenck and accepted Holmes '5 "clear and sues offreedom out-I at the 43 test Seven months later he subject, not through it."45 Once he did think the but this time in dissent matter through, Brandeis set out to educate his 40 JOURNAL OF SUPREME COURT HISTORY

Brethren, and in doing so transformed the ju­ was to make men free to develop risprudence of the First Amendment's Speech their faculties; and that in government Clause. the deliberative forces should prevail The elegance of Holmes's Abrams opin­ over the arbitrary. They valued lib­ ion masked the fact that it gave littlc guidance erty both as an end and as a means. to lower courts. "Clear and present danger" is They believed liberty to be the secret a very subjective test; to conservative jurists, of happiness and courage to be the any criticism ofthe status quo appeared clearly secret of liberty. They believed that and presently dangerous. As Brandeis noted, freedom to think as you will and to "Men may differ widely as to what loyalty to speak as you think are means indis­ our country demands, and an intolerant ma­ pcnsable to the discovery and spread jority, swayed by passion or by fear, may be of political truth. 51 prone in the future, as it has often been in the Where Holmes used the metaphor of the mar­ past, to stamp as disloyal opinions with which ketplace of ideas, which is in essence a nega­ it disagrees.,,46 tive means ofprotecting speech, Brandeis sug­ In another speech case in 1920, Gilbert II. gested a positive reason for the Speech Clause. Minnesota, Brandeis, who had long objected The highest honor in a democracy is to be a to the Court's use of due process to protect citizen, but it carries the responsibility to par­ property and strike down reform legislation, ticipate in the governing process. To make in­ declared that "I cannot believe that the lib­ formed decisions on public matters, the citi­ erty guaranteed by the Fourteenth Amend­ zenry had to have the information necessary to ment includes only liberty to acquire and to weigh all sides of an issue. If the state silenced enjoy property.,,47 That case, conjoined with unpopular speakers, then it crippled the citizen two opinions by Justice McReynolds on the in the performance of his or her responsibility. rights ofparents to educate their children,48 led Free speech is necessary not just as an indi­ to the startling statement by Justice Sanford, vidual right, but as the bedrock of democratic in GiLlow II. New York, that "For present government.52 purposes we may and do assume that free­ dom of speech and of the press-which are protected by the First Amendment from *** abridgement by Congress-are among the fun­ Brandeis had been an advocate of privacy damental personal rights protected by the due ever since the early days of his practice. process clause of the Fourteenth Amendment In 1890, he and Sam Warren had written a from impairment by the States.,,49 And thus pioneering article on the subject that Dean began the process of incorporation. Roscoe Pound said did "nothing less than add Brandeis's greatest contribution to free­ a chapter to our law. "53 Although there may speech jurisprudence came in his concurring be no mention of the word in the Consti­ 5o opinion in Whitney II. California. While tution, Brandeis believed that the "right to one may admire Brandeis opinions for their be let alone" constituted a basic right of the logic, their technical excellence, and their American people. He got the chance to ex­ lucidity, in only a few instances did the plicate this view when the Court first con­ prose rise to a level of elegance. In Whitney fronted wiretapping, in Olmstead v. United Brandeis delivered as ringing a defense of lib­ States. 54 erty as anything the more quotable Holmes In investigating a prohibition ring, gov­ ever wrote: ernment agents tapped the suspects' homes, and on the basis of some 775 pages of notes, Those who won our independence be­ secured a conviction under the National Pro­ lieved that the final end of the state hibition Act. At the trial, the defendants had lOUIS BRANDEIS: ADVOCATE BEFORE AND ON THE BENCH 41 raised the constitutional issue that a search had the very spirit that the Fourth Amendment had been made wi thout a warrant. On appeal, Chief been intended to Justice for a 5-4 Second, Brandeis missed the Fourth Amendment in order to catch criminals. "Our Govern­ no search within the of the ment, he lectured the "is the potent, Fourth Amendment had taken 55 Holmes the teacher. For good or for ill, it entered a short and the Brahmin in him teaches the whole by its example.... If came through in his characterization Wlre­ the Government becomes a lawbreaker, it as a "dirty business. But he deferred breeds contempt for law."57 the to and in what he termed Brandeis '5 case, he told his niece Fannie that "[I]ying "exhaustive" opinion. and are always bad, no matter Brandeis objected to the Court's what the ends. don't care about the Fourth Amendment but I am implacable in against actual invasion of standards.,,58 one's rather, the Framers had intended it The bulk of Brandeis's to protect the sense one felt in one's laid out his views on the that the government could not free enter without a warrant issued under probable he declared, undertook "to protect Americans cause. allow someone to eavesdrop in their have met some fine technicality, but it violated and their sensations.

Brandeis dissented in a 1927 Court opinion permitting police to use wiretaps in the homes of suspected bootleggers without a warrant. It was in this case, Olmstead v. United States, that he articulated the right to privacy. Pictured here, agents raid a lunchroom on Pennsylvania Avenue in Washington, D.C. during the height of Prohibition. 42 JOURNAL OF SUPREME COURT HISTORY the more than when his clerks up lucrative in law finns to enter academia most valued by civilized men." This as law teachers. be let " because of its importance, had He also believed that law reviews had not to be the protectioll, and any only an opportunity but also an to unauthorized intrusion into a cast a critical eye on decisions of the Supreme "must be deemed a violation of the Fourth Court and other federal and state courts. He Amendment."s9 Fel IX Frankfurter with requests to Brandeis worried that new inventions have his students write articles on important would make it ever easier for the government, cases and issues. "Wouldn't it be he unless restrained, to invade the of a asked in one instance. to have law school stu­ home or office without actually the dents write articles on the redress for premises. In thei r 1890 Warren and through Brandeis had warned about new inventions. etc., government means of "Mechanical "threaten civil suitS."61 At another time he wrote, "Glad to make good the prediction that 'what is whis­ to see the Harv, Law Review in in the closet shall be from issue its function of enlightened public Jse-tops.," Four decades Brandeis opinion on US.S.C With 20 such organs, & warned that "the progress ofscience in furnish- the service continued throughout 10 years, we the Government with means of espionage may hope to see some impression made. There is not likelv to stop with Ways ,,62 The law reviews rec- be developed and Brandeis's interest in emment, without papers from secret their product, and on his seventy-fifth birthday drawers, can reproduce them in court, and by the Columbia. Yale and Harvard law reviews which it will be enabled to expose to a jury the all devoted issues to his work on the Bench. most intimate occurrences of the home."6o In Secondly, Brandeis husbanded his re­ his folders on Brandeis had a news­ sources and carefully chose cases on which paper about a new device called "tele­ he would make a stand. William O. vision. Like most men of his Brandeis Brandeis's successor on the made little believed in progress, but he did not consider all effort to build coalitions or reach out and pros- for the 2:ood. and he refused to use the He had the theory, he "that the only soul I had to save was my own. ,,63 Brandeis had a far more institutional view of his role on the and of the role of the Court not only in the but also * III the nation what the Constitution This litany could go on indefinitely, but no means did this imply a there are two other aspects of Brandeis the ad­ in fact, Brandeis's view of judicial vocate that J should like to mention. he restraint led him to comment about the Court's was the first Justice to cite a law review article business that "the most important thing we do in a Court and he saw law is not ,,64 schools and law reviews as part of his cam­ In numerous cases Brandeis paign to educate bench and bar about the facts drafts of dissents and then silently filed them of life. Law schools could be instruments of away, In a few he was able to con­ great in teaching the next of vince his Brethren that his views were cor~ lawyers judges) about the proper way to rect, and so even if he did not write the meld life and law. Nothing pleased Brandeis Court's opinion his views prevailed. In one LOUIS D. BRANDEIS: ADVOCATE BEFORE AND ON THE BENCH 43 instance, Brandeis had prepared a full dissent made no effort to enquire into the wisdom when Chief Justice Edward Douglass White of the statute.68 His guidelines on how the died, and the case was held over until the Court should interpret the Constitution, ex­ new Chief Justice, William Howard Taft, took pressed in the mid-1930s, are now consid­ over. Brandeis met with Taft and convinced ered authoritative.69 him to vote his way-not on the merits of the • The idea that the Fourteenth Amendment's case, but on jurisdictional grounds-and car­ Due Process Clause incorporated individual ried the entire Court with him 65 As Brandeis liberties as well as property rights bore fruit told Frankfurter, "[T]hey will take from Taft in Brandeis's own lifetime. He saw the Court but wouldn't from us. ff good enough for Taft, apply the Speech Clause to the states in the good enough for us, they say-and a natural Gil/ow case, and a few years later saw the sentiment.,,66 Press Clause as well as the right to counsel Fully aware of the conservatism of his in capital cases incorporated as well 70 colleagues, Brandeis chose to do what any • The great lesson on speech took a while, but good educator---or advocate-would do. eventually the Court abandoned the notion Don't waste time on the small issues (and in of seditious libel once and for all. 71 those days, before the 1925 Judges' Bill, the • The right to privacy, enunciated in Court heard a lot of minor matters) but con­ Olmslead,72 is still a matter of debate for centrate your energies on the issues that are scholars and jurists who are concerned important. When Brandeis did dissent, then, that the word itself does not appear in the the people whom he wanted to reach listened Constitution. But ever since Griswold v. carefu Ily, and in the end his strategy proved Connecticut (1965),73 a majority of the successful. Court as well as the American people believe that the right to be let alone is a fundamental right of the people. *** • Brandeis's objections to wiretappi ng without All of this-the fact-laden Brandeis briefs, a warrant led Congress in 1934 to prohibit the extensive dissents, the effort to teach wiretapping evidence in federal courts. fn others-constituted part of Brandeis the Ad­ 1967, the Court adopted Brandeis's views in vocate's effort to teach judges the facts of a Berger v. New York, finally bringing wiretap­ case as well as the law. Years earlier, during his ping within reach of the Fourth Amendment campaign to establish savings-bank life insur­ and requiring a warrant.74 fn another 1967 ance, he had written: "ff we should get tomor­ wiretapping case, Justice Potter Stewart row the necessary legislation, without having adopted a very Brandeisian approach when achieved that process of education, we could he declared that "[T]he Fourth Amendment not make a practical working success of the protects people, not pJaces."75 plan.,,67 He well realized, however, that educa­ • Although in Olmstead Brandeis's clerk wor­ tion took time, and that one should not expect ried that the old man was going too far when immediate results. But, as he said, "My faith he cautioned against machines that could in time is great." Looking back, we can now see into houses, the "old man" proved pre­ see that time rewarded that faith. scient, and subsequent courts have main­ tained his belief that a person's home • Brandeis's notion ofjudicial restraint in re­ should be safe from any form of gov­ gard to economic regulation anticipated the ernment snooping. Just three Terms ago, great constitutional battles of the 1930s, the Court held that police use of thermal and ended with the Court adopting a sim­ imaging without a warrant to determine ple rational-basis test for such measures that whether anyone was growing marijuana on 44 JOURNAL OF SUPREME COURT HISTORY

the violated the homeowner's aware of those then they could de­ vacy and the Fourth Amendment's Warrant cide what to do. At Brandeis's funeral, Clause.76 Dean Acheson noted in his eulogy: "To him • A stickler for jurisdiction, Brandeis wanted truth was less than truth unless it were ex- the Courts to within the bonds estab­ so that people could understand and lished for them the even believe."gO if at times this led to unpopular results. Ofall the he wanted to understand He condemned venue-shopping, made pos­ the none mattered more to him than sible Justice opinion in As I end, let Mr. Justice Brandeis. ad- v. TjJson that created a federal commer­ cial common Jaw. 77 Brandeis this he tried, as always, to his career on the Court, and he he lived to see the Court accept his view in a had the power to stri ke down case that is still studied by every in the exercise of this power, we must law Erie Railroad Co. v. Tompkins ever be on our guard, lest we erect our preju­ ( 1938).78 dices into principles. If we would • As the Roosevelt came onto the the light of reason, we must let our minds the aversion to law review articles and be bold."sl other sources ofinformation evap­ and for the last the of law reviews and other non-case sources ENDNOTES has become routine in both state and federal courts. ILouis O. Brandeis (hereafter LOB), "The Living 10 1/Iil1ois Law Review 461,463-64 (1916). 2LOB to Otto A. Weille. 12 March 1876, in Melvin L One I suppose, argue whether Jus­ Urofsky and David W. Levy, eds.• Letters of Louis D. tices of the Supreme Court should be involved Brandeis (5 vols., Slate University of New York Press, 1971-1978) (hereafter Brandeis Letters), I' 6. in this sort but I think it is 3LDB 10 Amy Brandeis Wellle, 20 January 1877. id., I. to note that Brandeis was not a results-oriented 14. who bent the law to support the programs "LOB to Samuel O. Warren. 30 May I id.. I: 35. he favored. He much ofthe New Deal, sLDB to Alfred Brandeis, 21 March 1887, id., I: 73. voted in most instances to uphold programs account of Brandeis's practice Edward F. McClennan, "Louis D. Brandeis a Lawyer," 33 he disliked. He also drew a dis­ Mass(Jchusells Law Quarlerlv I {I 948). McClcnnan, who tinction between judicial restraint when eval­ had been one of Brandeis's partners, prepared arti­ uating economic cle as memorandum to aid Alpheus T. Mason in writing when looking at ('fPlTIpnt~ on individual Brandeis'5 biography. liberties. He 7Quoted in Samuel J. Konefsky, The Legacy of Holmes Stone's famed Footnote Four in Carotene Prod­ and Brandeis: A Study in the InOuence ofldeas (New York, Jvlacmillan. 1956),305 n54. ucts, which declared that courts should sThe change in the role the lawyer, resulting from the level of scrutiny on cases growth of business and concomitant growth of gov­ 79 and liberties. ernment regulation, can be explored in sources. One Brandeis did have a cause, thOugh, one of the remains James Willard Hurst, The Growth of that today I think no member of this Court American Law: The law Makers (Boston: Little Brown, would namely, that in order to avoid 1950). Hurst, it might be noted, was one of Brandeis's favorite law clerks. formalization and sterilization of the law, 9Undated memorandum, "What the Practice of Law judges must be aware of the real-life includes," LoUIS D. Brandeis Papers, University of conditions that lie behind the cases. Once Louisville law Library, Louisville, Kentucky. lOUIS D. BRAN ADVOCATE BEFORE AND ON THE BENCH 45

IOSee LDB to William Harrison Dunbar, 2 February 1893 Goldmark, Impatient Crusader: Florence Kelley's Life and 19 August 1896, Brandeis Leiters, I: 106, 124, At Story (Urbana: University of Illinois 1953), the time, Dunbar a junior associate in the finn; he eh, 13. would become a partner, 198 US. at 57. as Allon Gal points out, the Brandeis finn never 23DiSanio v, Pennsylvania, U.S. 34,37,43 (1927) attracted the big banks, railroads, and other businesses (Brandeis, J, dissenting), controlled by the Brahmin elite, Rather, the firm rep­ 24Mason, Brandeis, 248-49, resented many midsized companies, sorne which, 25208 412 (1908) The briefwas published, along with as Filene's Departrnent Store and restaurant owner the Court's decision, in LOB and Josephine Goldrnark, Howard Johnson, would later become big businesses, Women in Industry: Decision of the United States In addition, an overwhelming number of clients Supreme Court in Curl !'.Juller vs. Slate of Oregon: were, like Brandeis, Jewish, Allon Gal, Brandeis of Upholding the Constitutionality of the Oregon Ten Boston (Cambridge: Harvard, University Press, 1980); Hour Law for Women and Brieffor the State ofOregon 42-45, (New York: National Consumers' League, 1908). 12Hurst, Growth of American Law, 31 [; Alpheus T 26Memorandum by Josephine Goldmark for Alpheus Mason, Brandeis: A Free Man's Life (New York: Viking, Mason, 6 November 1944, cited in Mason, Brandeis. 250 I 946), 640. 27208 at419, J lUnited States Senate, Hearings Before the Sub­ nBmwn v, Board o/Educalion, 347 U.S, 483 (1954), The Committee of tbe Committee ou the Judiciary ... on briefs can be found in Philip R Kurland, 16 Landmark the Nomination of Louis D. Brandeis To Be an Asso­ Briefs and Arguments of the t:nited States Supreme ciate Justice oflhe Supreme Court of the United States Court 63 (1975). (2 vols" Washington, D,C: Government Prinling Office. ", Bolltngel; 539 US, 244 (2003), and Gruller v, 1916), Sce also Mason, Brandeis, chs, 30-31, and A, L Bollinger, 539 US. 306 (2003), Todd, Justice 011 Trial: The Case of Louis D. Brandeis 30Ex paFte Anna Hawley, 85 Ohio 495 (19 J1),

(New York: McGraw-Hili, 1964), 3JHawiev l'. Walker, 232 718 (1914),

14McClcnnan, "Brandeis as Lawyer," 22-23, In the J2SIetlier E 0 'Hara, 69 Ore, 519 (1914), 18805, Brandeis went to England to negotiate patent rights JJSlelller O'Hara, 243 US. 629 (1917), fora new paper-bleacher for the Warren paper companies, l4Willi8rn Hitz to Felix Frankfurter, December 1914, 15Brandeis's Zionist is outside the scope of this pa­ cited in Mason, BrandeiS, 253, per, For those interested, see Melvin L Urofsky, American J5See Melvin L Urofsky, "Wilson, Brandels, and the Zionism from Her'!;l to the Holocaust (Garden City Supreme Court Nomination," Journal ofSupreme Courl Doubleday, 1975), passim History 28 (2003): 145-56, 16Edward A, Filene, "Louis D, Brandeis As We Know 36Harold Laski to Oliver Wendell HolInes, Jr, 13 January Him," Bostol1 Posl, 14 July 1915, 1918, in Mark DeWolfe Howe, ed" The Holmes-Laski 17Brandeis also developed the idea of a eitrzens' lobby Letters (2 vo15" Cambridge: Harvard University Press, his fights against J P. Morgan's efforts to monopolize 1953), L 127; Holmes to Laski, 5 November 1923 and 21 New transportation, as well fights the November 1924, in id, 556, establishment of savings-bank life insurance, Mason, 37Bmndeis wrote only seventy-four dissenting opinions in BrandeiS, I 1-13, his twenty-three years the BenCh, an average of about 18WiSCOl1sill Cenlral Railroad Co. v, Uniled Siales, 164 a Term. He did, of course, Join in most of the US, 190 (1896); IHurphy v, Massachusells, 177 U.s, 155 dissents filed by Holmes, and latcr by Harlan Fiske Stone, (1900); Huguley Mamrjclcluring Co, v, Galeton Collon 38244 US 147, 154 (1917). ,'vIilis, 184 US, 290 (1902); Riverdale Collon iv/ills v, 39Adams E Tan/lei; 244 US, 590, (1917) (Brandeis, Alabama & Georgia Manu{cu:llIring Co" 198 US 188 J, dIssenting), (1905); Old Dominion Copper Mining & Smelling Co, v, ,40Philippa Strum, Louis D. Brandeis: ,Justice for the Lewisohn, 10 206 (1908); IngersoN v. Coram, I People (Cambridge, MA: Harvard Univen;lty Press, US, 335 (1908); BIgelow v Old Dominion Copper Mining 1984),364, & Smelling Co, 225 US III (1912) 41Jav Burns Baking Co, ", Bryan, 264 US 504,517 (1924) 19 198 U.S. 45 (1905) (Brandeis, 1, dissenting). 201d 75 (Holmes, J, dissenting), The best single 42Paul Freund, cited in Philippa Strum, Brandeis: Beyond book on the ease is Paul Kens, Jndicial Power and Progressivism (Lawrence: University Press of Kansas, Reform Politics: The Anatomy of Lochner I', New York 1993), 70, In Morning and Noon (Boston: Houghton (Lawrence: University Press of Kansas, 1990), Mimin, 1965),80, Dean Acheson recalls that he collected 2lThe best account of the preparation for the case, and fifteen of footnotes for a minor Other the roles of the various players, can be found in Josephine in which BrandelS wrote extensive, fact-laden dissents 46 JOURNAL OF SUPREME COURT HISTORY

include Soulhwestern Bell Telephone v. Public Ser­Hohnes had written the majority opinion and Brandeis hau vice Commission, 262 U.S. 289 (1923); New Siale dissented. Ice Co. 1'. Liebman, 285 U.s. 262, 280 (1932); 63James F. Simon, Independent Journey: The Life of v. L~e, 288 U.S. 51 541 (1933). William 0, Douglas (New York: Harper & Row. 1980). 43Schenck" Uniled Slates, 249 US. 47 (l919). 250. 44Abrams v. Uniled Slales, 250 US. 616, 624 (1919) 64Urofsky, "Brandeis-Frankfurter Conversations," 3. (Holmes, l, dissenting). "sThe case was United ,'cline Workers Coronado Coal 45Mclvinl. Urofsky, ed., "The Brandeis-Frankfurter Con­ 259 U.S. 344 (1922). The decision voided dam­ versations," 1985 Supreme COUl'l ReFiew 299, 323-24. . ages assessed by a lower court against the union un­ 4i1Schaefer v. United Slates, I US. 466, 482, 495 (1920) der the Sherman Act during violent strike against (Bmndeis, J, dissenting). the company. The Clayton Antitrust Act had suppos­ 47 254 US. 325, 334 (1920) (Brandeis, J, dissenting). edly exempted unions from this sort of penalty, and ap­

48Mever v. Nebraska, US. 390 (1923); Pierce I'. Soci­parently in the first gO-rolll](~ the vote had been 5­ ely ofSislr.:rs, 268 510 (1925). 4 to sustain penalties Then White died, and Tall 49268 U.S. 652, 666 (1925). accepted Brandeis's reasoning but based it on juris­ 50274 US. 357 (1927). dictional groulJds. For the unpublished dissent and the Slid 375 (Brandeis, 1.. concurring). workings of the Court in case, Alexander M. 52Thc explication of this opinion is Vincent Blasi, Bickel, The UnpublislJed Opinions ofMr, Justice Bran­ "The First Amendment and the Ideal ofCivic Courage: The deis (Cambridge, MA: Harvard University Press, 1957), Brandeis OpInion in Whitllel' California," 29 William & eh.5. Mwy Law Review 653 (1988). (,6Urofsky, "Brandeis-Frankfurter Conversations," 307. 5JSamuei D. Warren and Louis D. Brandeis, "The Right to 67LDB to Henry Morgenthau, Sr., 20 November 1906, in Privacy," 4 I-/orvard Law Review 193 (1890). Pound Urofsky and Levy, Lellers, l. 483. statement is in Mason, Brandeis, 70. (,SSee, Williamsol1 v. Lee Optical Co, 348 US. 483 54 277 US. 438 (1928). ( 1955). 551d 69Ashwander v. Valley Authoritv, 297 U.S. 288. 56[d. at 470 (Holmes, 1.. dissenting). Justice Butler also 341 (1936) (Brandeis, J, concurring). entered a well-reasoned dissent that shredded the Chief 70Gi!low v. New York. 268 U.S. 652 (1925); Neal' Justice's arguments. ld. 485 (Butler, J., dissenting). .Minnesota, U.S. 697 (1931) (press); Powell v 57/d. at 485 (Brandeis, 1., dissenting). Alabama. 287 US. (1932) (counsel). 5SQuotcd in Strum, Beyond Progressivism, 139. 71Bral1denbelg v. Ohio, 395 US. 444 (1969). 59277 U.S. at 478, 479. nOlmslead Un lied Siales, 277 U.S. 438 (1927). 6()Warren and Brandeis, "Privacy," 195; U.s. at 57 t. 73381 U.S. 479 (1965). 61LDB to Frankfurter, 25 June, 1926, in Urofsky and Levy. 74 388 US. 41 (1967). Brandeis Letters, 226. There arc numerous examples 7SKatz v. United Siales, 389 U.S. 347, 351 (1967). of such requests throughout this volume. Brandeis also 76Kyllo I'. Uniled States, U.S. 27 (200 I). frequently suggested articles for Frankfurter f()r the New 7716 Pet. I (1842). Republic. 78304 US. (1938). For the story of this fight, see 62LDB to Frankfurter, 14 May 1923, in Melvin 1. Urofsky Edward A. Purcell, Brandeis and the Progressi\'e Con­ and David W. Levy, eds., "Half Brother, Half SOil": stitution: Erie, the Judicial Power, and the Politics of The Letters of Louis D. Brandeis 10 Felix Frankfurter Federal Courts in Twentieth-Century America (New (Norman: University of Oklahoma Press. 1991), 140. Haven: Yale UniverSity Press, 2000). One 1111ght also note In that issue. Manley O. Hudson criticized two recent that in Brandeis's opinion in Erie, cited an article by Supreme Court decisions, United Zinc & Chemical Felix Frankfurter-"Distribution of Judicial Power Be­ v. Brill, 1l.S. 268 (J 922), and New York, New HaveJ/ & twccn Federal and State Courts," 13 Cornel! Law Quar­ Harlji)rd Railroad Co. v Fruchter, 260 US. 141 (1922), in ledy 499 (1928 )-tilat he had probably instigated. 304 '"The Turntable in the Federal Courts," 36 Harvard US. at 73, n. 6. La'" 826 (1923) Brandeis joined Holtl1es in tbe J9United Slates v. Carolene Products Co., 304 U.S. 144 majority Opillion for the first but deplored the will­ ( 1938). ingness to revIew such cases. In the same 80Dcan Acheson, "Mr. Justice Brandeis," 55 Harvard Law Issue an ullonyrnous student note on Portsmouth Review 191.192 (1941). Harbor Land & JiOlel v. 250 U.S. I SINeII' Siale Ice Co. v. Liebmann. 285 U.S. 262,280, I I (1919), re-argued 260 (1932) (Brandeis, J., dissenting). omen as Supreme Court Advocates, 1879-1979

MARY CLARK*

I. Introduction

As 2004 marks the of women's admission to the COllrt bar, this is a fitting occasion to reflect on women's and achievements before the Court. Given that this is a history this paper will foclls principally on the first 100 years of women's before the Court, from 1879 to 1979. 1 In this I period, women's membership in the Court bar grew from two or one or no women per year between 1879 and 1900 (at a time when men were joining at the rate of 250 to 350 per year)2 to over 5 of newadmittees 1979. Today, women constitute 25 of the roughly 4,500 to admittees each year,3 but only 8 of the bar overall. What you find in broad brushstroke in growing number of women advocates were af­ studying the of women's be- filiated with advocacy groups, ex­ fore the Court is in the first several sex- and race­ U,,\,aLI"", women advocates were drawn discrimination cases before the Court. Finally, from solo and small in the last years, women advocates of most attorneys of their before the Court have been affiliated in roughly women's claims measure with government non- Court In the first half of the twentieth cen­ profit groups, and law-school fac­ tury, women advocates were drawn principally argument as mem­ at the local, state, law firms remain with few excep­ rare.4 tions, were not Iitigating women's rights claims After some of the most no- before the Court In the 1960s and a table women advocates of the last century, I 48 JOURNAL OF SUPREME COURT HISTORY

belongs to the female sex evidently unfits it for many of the occupations of civil life.

Ultimately, he concluded:

The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator7

Even with the holding and rhetoric of Brad­ well, women succeeded in joining most states' bars in the latter part ofthe nineteenth century, such that by 1900, there were one thousand women lawyers in the United States. An increasing number of law schools be­ gan to admit women at this time,S with women seeking- and gaining-access on the g rounds that they were equal in their abilities to men and Myra Bradwell was a successful Chicago entrepreneur should therefore learn the law alongside men. who made a fortune publishing legal texts. Trained as By contrast, women gained admission to med­ a lawyer, she was refused admittance to the Illinois bar because of her sex. The Supreme Court upheld ical schools on the ground that women's inher­ the state bar's refusal in 1873, but women were able ently nurturing natures suited them especially to join most state bars by the end of the century. well for the care of women and children, with many aspiring doctors attending all-women's conclude with thoughts on why it matters that medical schools.9 Largely because of the dif­ women have appeared, and continue to appear, ferent ideologies shaping women 's entry into before the Court. the two professions, there were seven times as many women doctors as lawyers at the start of II. Women's Initial Entry Into the twentieth century. 10 the Legal Profession

Women first entered the legal profession in the III. Women First Admitted United States immediately following the con­ to the Supreme Court Bar clusion of the Civil War. Their numbers grew Belva Lockwood (1830-1917) had been a modestly but steadily through the turn of the member of the Di strict of Columbia bar for century,S despite the Supreme Court's 1873 de­ three years when she first applied for member­ cision in Bradwell v. Illinois,6 which rejected ship in the Supreme Court bar in 1876. At that Myra Bradwell's claim that Illinois had vio­ time, as now, an applicant for the Court's bar lated the Fourteenth Amendment's Privileges was required to "demonstrate a minimum of and Immunities Clause when it refused her three years' membership in good standing in admission to its bar on the grounds of sex. the bar of her state's highest court, and to have In concurring in the judgment in Bradwell, her application sponsored by a current mem­ Justice Bradley now famously (or infamously) ber of the Supreme Court bar. If her applica­ declared: tion was approved, admission [was] ... moved Man is, or should be, woman's pro­ and granted in open court. It was not until the tector and defender. The natural and 1970s that applications for admission to the proper timidity and delicacy which Supreme Court bar [could be] processed by WOM AS SUPREME COURT ADVOCATES, 1879-1979 49

been largely published over the coun­ much to the detriment of her law practice upon which your and her are dependant support. Wherefore your prays your Honorable for the passage of an Act enabling her or any other woman similarly situated to be admit­ ted to the said ... Court on the same terms as men ... 13

Lockwood proved to be a tenacious lobbyist. was too for me to attempt," she later confessed. Among other she addressed senators she didn't know "as were old familiar friends."l4 After three years ofLockwood 's enacted an "Act to Relieve Certain Disabilities of Women," providing for women to be admitted to women's membership in the Court Part of her strategy included ad!irel,Sirlg I5 she didn't know "as though they were bar reapplying for admission friends," in 1879, Lockwood became the first woman to join the Court's bar. Albert Riddle, a white at Howard Law moved her but most, then as application. 16 A year Lockwood moved now, joined the bar principally for its symbolic the admission ofSamuel Lowery value. the first Southern black to be admit­ Chief.lustice Morrison Waite authored the ted to the Court's bar. 17 order denying Lockwood's application, which Once the Court's doors were pried open, declared: women to sponsor one another's mem­ of the court, in the bar as a type of net­ from its to the present work. The movants included the Pier family of time ... none but men are admitted mother and three to before it as attor­ neys and counsellors. This is in ac­ cOI'dance with immemorial usage in and the law and In all the States until within a recent in the woman movement ... and cor­ with one another about personal and period.... 12 Not defeated, Lockwood lobbied to amend the Court's bar admis­ sion rules to include women. Her petition to " of how to manage read as follows: and [Y]our has been debarred even of what to wear as n"r,tp~:", women. from admission ... on the that Whether to wear one's hat in cOllrt was an is­ she is a woman. and that fact has slIe of no small concern for the earliest women 50 JOURNAL OF SUPREME COURT HISTORY

28 FRANK LESLIE'S ILLUSTRATED NEWSPAPER.

A year after she herself was permitted to become a member of the Supreme Court bar in 1879, Lockwood (left) moved the admission of Samuel Lowry of Huntsville, Alabama. Lowry (second from left) became the first Southern black admitted to the Supreme Court bar.

A modest woman ofthat small law offices in which practiced. And, day wore a hat whenever in public. At the same given men's participation in business a lawyer was to take his hat off and property holding at this it is not sur­ in court. Demands of modesty over to learn that these women advocates those of professional custom, and women's rpnrp~pntpri male clients more often than they hats remained on in court. did female. what I would now I a widely held "feminist consciousness" among these IV. Belva Lockwood, the First first women the term "feminist" was Woman to Argue the Court first used decades later),2o only one of the first women Court bar mem­ Belva Lockwood was the first woman to ar­ bers a women's rights claim before gue before the 22 doing so in the Court. This again was Lockwood, who I brought an original action in the Court on be­ in the case of Kaiser 23 half of herself and all other situated Lockwood sought to use married women's women who were denied membership in the legally status to benefit her Virginia state bar on the ground of sex. clients, a married couple who sought to dis­ contrast, the handful ofearliest women avow the wife's transfer of to a third members who actually before the party.24 Lockwood restric­ Court did so in disputes wills, tions on married women's rights as property, and contracts, typical of the solo or a matter ofprinciple, she nevertheless invoked WOMEN AS SUPREME ADVOCATES, 1879-1 51

traditional ofthe limited nature her class. Adams trained with a of married women's dominion over property in voice instructor to lower her voice in order her clients' case. The Court rejected to her career prospects. 3D [n 1914, Lockwood's argument on factual grounds, she at trial John Preston, that the property transfer was valid be­ the U.S. attorney for the Northern District of cause it had been executed both husband California. Adams is said to have so Irr"rlrp"~r'n and wife. Preston that he hired her as one of his assistant After funning for President on the Equal U.S. making her the first woman to ticket in the 18808, Lockwood serve in that position. When Preston was called the Court in 1894 to di­ to Washington to serve as assistant attorney rect the state of Virginia to admit her to its in 1918, Adams was named to fill his from which she had been excluded on the vacancy as U.S, attorney, the first woman to basis of sex, In on Bradwell to reject hold that and the only one to do so until Lockwood's petition, the Court concluded the Carter administration. that had not violated the Four­ In I Adams herself was called to teenth Amendment's Privi and Immuni­ Washington to serve as an assistant attorney ties Clause by the word general, where her primary rp",C\"n'~1 was to mean Prohibition. She was sons," in who was woman to hold this office, Adams was named Lockwood's next, last, and most fa­ to this post shortly after the 1919 ratification mous was on behalf of the Eastern of the Amendment, I prohibiting Cherokee Indian Nation, heard for two m and the 1920 ratification 1906.27 "the Supreme Court affirmed [a lower court] judgment, women the to vote. Some ascribe the dollars with interest President's choice of Adams to an effort to as for its forced relocation of the "woo" the new women voters (and thus an early Cherokees 28 manifestation of concern for the gap in

V. Highlights of Some of the Most she was in office for slightly un­ Notable Women to Appear Before der a year, Adams argued five Court Court in Century cases, losing only one. Three of the cases in­ Following Lockwood volved Prohibition, one railroad and the other tax forfeitures. In each case, Adams In the first decades of the twentieth century, was the only woman to appear on brief or at when there was one woman attorney for every argument. 33 5,000 to lawyers in the United a couple of dozen women filed certiorari pe­ titions and/or merits briefs in the Supreme Mabel Walker Wiliebrandt Court, mostly appearing on behalf of local, (1889-1963) As with the ear­ the moniker "Prohibition Portia, Iiest women no one in Mabel Walker Willebrandt oversaw the fed­ this second wave litigated cases directly fram­ eral enforcement of Prohibition, ing women's rights issues before the Court.29 with tax and insurance-law matters, as Adams' successor between 1921 and 1929. In Annette Abbott Adams (1877-1956) interviewing Willebrandt for this Presi­

Annette Abbott Adams aUI"a."u from Boalt dent Warren noted that the only woman in her was her age a 52 JOURNAL OF SUPREME COURT HISTORY

As an assistant attorney general in the 19205, Mabel Willebrandt gained national fame for vigorously enforcing the Prohibition Act. She argued frequently before the Supreme Court but struggled during oral arguments to understand the Justices, as she was losing her hearing.

Willebrandt assured him, that would go away poses, but not beer. 38 The Court ruled with the with time34 government in that case. Wil1ebrandt oarticioated in more than 270 The Associated Press called Willebrandt "the most famous woman attorney during the years first halfofthe twentieth century. "39 One ofher with the Justice oral went even further, calling Wille­ argument in at least ten cases, including four brandt the most famous American woman of that were argued in the same month.36 In each her time.40 In her, Willebrandt's case, Willebrandt was the only woman to ap­ friend and former Jaw John pear on brief or at declared, '''IfMabel had worn trousers, The vast majority of cases in which she could have been President. ",41 Willebrandt related to Prohibition. Willebrandt's time in office While Willebrandt, like Adams, had not been was a difficult one, for, among other a prohibitionist before coming to Washington, she was losing her she "was determined to uphold the once mother the night before a case in the Court cases was 1923 Term. Willebrandtconfessed, "Each time a to the Prohi­ not to be terrified over my bition Act as unconstitutionally discriminating ears. [tile talk so low.,,4J between malt Iiquor and and vinu­ Though Willebrandt actively campaigned doctors to continue for Hoover in I she was forced out of of­ for medicinal pur­ fice following his 1929 WOM AS SUPREME COURT ADVOCATES, 1879-1979 53

Susan Brandeis (right) is the only daughter of a sit­ ting Justice to have argued before the Court. Justice Brandeis recused himself from argument and deci­ sion in the 1925 case and urged his daughter to "raise [her] professional performance as high as [her] abilities and hard work would make possi­ ble."

say because she was too a The novelty of Brandeis' argument won ure in Prohibition. front-page attention in the New York hoped-for federal as reward for her which announced, "Brandeis's In government was dashed on the same Court to New York shores, War Insurance Fee Case.',49 As Frank Gilbert, son of Susan recounts, after the argument Susan Brandeis (1893-1975) To date, the only of a sitting Jus­ Brandeis] wrote tice to argue before the is Susan mother Brandeis, daughter of Associate Justice Louis then thirty-two: Brandeis.47 Justice Brandeis recused himself "You are fine pub­ from argument and decision in the 1925 case of licity and fruits will come later v. United States,48 involving a chal­ will raise your to a federal statute prohibiting attorneys mance as high as your abilities and from more than $3 for work in pre par­ hard work would make a veteran's benefits claim. Father.,,50 54 JOURNAL OF SUPREME COURT HISTORY

A unanimous Court rp'Pf'tpri more sympathetically to her evi­ men! and upheld the limitation. dence of ongoing abuse by her husband. Hoyt was briefed by two women-Raya Dreben for and Dorothv Kenyon for the ACLU 1940s and 1950s as amicus in ar­ As with many fields ofendeavor, women's op­ in the profession ofa environment that dis- World War II, onlv to contract with the interests and ambitions sional women, a small number were active in the Court at this two of whom are highlighted below. was hired, by Justice William O. Douglas in Bessie Margolin (1909-/996). As an attor­ 1944. Itwould be another years be­ ney with the Labor Department in the 1940s, fore the next woman law clerk was hired,sI and 1950s. and 1 Bessie "rose to be­ that before come assistant solicitor in of there was Court and associate solicitor for Fair of women servmg as Labor Standards.58 Margolin participated in How the service of women law clerks affected dozens of Court cases while at the the Justices' to women advocates Labor 59 where she was the ex­ can only be and becomes a factor pert on the Fair Labor Standards Act (FLSA), at the very tail end of the under the federal law regulating wages and hours of consideration if at all. 60 and most of her Court afQuments in­ women's service on many fronts volved the FLSA61 the war, the Court upheld a state law Unlike Adams and who were prohibiting women from as bartenders the women on either side of their cases, shortly after the war's conclusion. This was Margolin was on brief bv other the case of Goesaert v. Cleary,54 in which women attorneys with the Labor a woman, Anne on behalf ment62 As with Adams and Willebrandt, how­ of the olaintiffs in the Suoreme Court. In ever, Margolin's cases by and did not its opinion rejecting the women's claims, the women's rights issues, In Court made light ofthe idea of women on Margolin's ability as an advocate, Justice with references to William O. Douglas observed. "She was crisp alewife.55 in her Women pursuing legal careers in the post­ war era of out of step with the dominant cultural of the time~ for women to marry young, bear and home. as late as 1961, the Supreme Beatrice Rosenberg (1908~/989). Court rei ied on an understanding of women as at approximately the same time as the "center of home and life" to Beatrice is said to hold the women's a Florida law excluding women from service as argument in the Court- jurors unless they Iy their in­ cases in as many years64 By contrast, the terest in advance.56 who had record for men in the twentieth "be­ been convicted ofmurdering her husband an longs to Deputy Solicitor General Lawrence all-male jury, on to the Court that who has argued more than J50 cases" a iury that included some women might have WOMEN AS SUPREME COURT ADVOCATES, 1879-1979 55

A career attorney with the Justice American Civil Liberties Union's (ACLU) ment's Criminal Division between 1943 and Women's Rights Project. rose through the ranks to the Constance Baker Motley (J921-presellt). position of chief of criminal where Constance Baker argued ten race­ she was for on search­ discrimination cases before the Court in the and-seizure law. 66 the cases J960s, nine of them.74 The one participated in before the Court were Abbott case she lost was Labs E Gardner,67 This was the case of ,,,\vain v. up- review of regulations issued by the the use ofrace-based peremptory chal­ of Education, and Welfare not prohib­ injury which the Court would the Drug, and Cosmetics later reject in Ba/son v. 76 and Welsh v. We l.sh's the Inc, Fund immedi­ conviction for draft evasion on that from Columbia Law his nontheistic conscientious was Motley participated in the held with "the of more traditional re- Court briefing of all of the ma­ convictions." jor race-discrimination cases of her time n One described Rosenberg's oral When Marshall left the Inc. Fund as "[She] was a for a federal appellate 196 I, very powerful woman ... I was awe-struck Motley and Jack took "69 Justice Douglas, in The Court over the LDF's Supreme Court included Rosenberg on a short list of Justice The cases in which Motley argued fell into attorneys in his three broad criminal proce­ "made more enduring contributions to the art and of public services. of advocacy before us than most of the Motley argued a total of five sit-in cases be­ name'lawyers."70 fore the Court, in each of to argue two on one day in Women Appointed to Represent Pro Se Par­ 1 and two on another in the the fall of 1963 82 Back-to-back argumenta­ were ap­ tion was new for Motley, who once ar­ the Court appointed its first gued four on the same in the Fifth the interests of a pro se Circuit.8J This was Helen in Hamilton a tax attorney at the Justice v. the right to coun­ 72 was appointed in 1959 Dean Acheson, con­ ral>'[lIfleJlIl III cases, Motley sidered to be the first man to serve in this ca­ observed, "[Justice] Douglas seemed to pay had been named more than no attention. He to be let­ years eariier. 73 ters and doing other work, as usual." ently was paying attention," she later rec- 1960s and 1970s because he wrote the opinion for a Two of the most Court ad­ unanimous Court Hamilton's con­ vocates of all time viction. Indeed, Douglas "place[ d] [Motley] rights advocacy groups in the 19605 and 1970s: in the top ten of any group of advocates at Constance Baker Motley, of the National As­ the level in this country,,,R5 com­ sociation for the Advancement ofColored Peo­ her to Charles Hamilton Houston, "the (NAACP) Defense Fund compliment I have ever said and Justice Ruth Bader Ginsburg, of the Motley.86 56 JOURNAL OF SUPREME COURT HISTORY

National Association for the Advancement of Colored People lawyer Constance Baker Motley was pho­ tographed in 1962 when she and her colleague Jack Greenberg (right) represented James Meredith (cen­ ter) in his segregation case against the University of Mississippi. Motley worked with Thurgood Marshall on Brown v. Board of Education and other landmark litigation that desegregated schools and Southern universities.

When President Johnson invited Motley gal status, overturning a century of Supreme to the White House to announce hi s intention Court precedent that had tolerated-indeed, ofnaming her to the U.S. District Court for the embraced-differential treatment of women Southern District of New York in 1966, thus and men 89 making her the first African American woman When the Project was formed in 1972,90 nominated for a federal judgeship, Johnson Ginsburg had just recently joined Columbia told Motley that Attorney General Ramsey Law School as its first tenured female fac­ Clark "was the first person to bring [Motley] ulty member and had worked out an arrange­ to his attention," doing so on the strength of . ment whereby she could devote half her time her Supreme Court arguments 87 to the Project. In many ways, Ginsburg and the Project followed the step-by-step approach Ruth Bader Ginsburg (1933-preseflt). It goes modeled by Marshall, Motley, and the NAACP almost without saying that Justice Ruth Bader LDF in their path breaking litigation for racial Ginsburg briefed and argued the leading justice. The Project's litigation agenda was women's rights cases of the 1970s as co­ grounded in formal equality principles, main­ founding director of the ACLU's Women's taining that similarly situated men and women Rights Project. 8R The rulings tbat resulted should be treated the same under the law. This from the Project's litigation campaign repre­ may seem an unsurprising principle now, but sented no less than a revolution in women's le­ it was by no means widely accepted at th at WOMEN AS SUPREME COURT ADVOCATES, 1879-1979 57 time. In looking back on this period, cases, Melvin Wulf, the ACLU's direc­ has "J n one sense, our mission in tor, joined on the brief. Also the 1970s was easy: the were well de­ them on the briefs were a number of women fined. There was subtle about the way with the including Brenda were. Statute books in the States and Fasteau, Kathleen and Susan Nation were riddled with what we then called Deller Ross. In addition to its party repre­ sex-based differentials.,,91 sentation, the submitted amicus briefs While defined the mission as in fifteen other cases sex discrimina­ "easy" in one sense, one of the chal­ tion before the Court98 she and the faced was how to all this while for m viewed as beneficial to teaching law at one women, were instead deeply harmful~to men of the first case books on sex discrimination as well as women. later noted: law,lOI and raising two children. on this "It was Our mission was to educate ... .. butwe decisionmakers in the nation's lalUres and courts. We tried to convey litigation cam­ to them that paign cannot be overstated. the words offor­ mer Boalt Dean Henna Hill

literally, it was voice, raised in oral argument and re­ flected in the drafting of that were.92 shattered old stereotypes and opened I n furtherance of its goals, the new opportunities for both sexes. She Project as representative or and the Court to friend ofthe Court in a number ofcases demon- a new constitutional frame­ the ill effects of sex on work for the achievement men as well as women, as in the case of ofequality for women and men. In do­ Weinberger v. Wiesenjetd. the ing so, in part created Wiesenfeld in his efforts the intellectual foundations of the 103 to obtain spouse benefits to care law of sex discrimination. for his infant son, where his wife had died overwhelming success, in childbirth and the Social Secu­ there was a rise in amicus rity Act extended benefits only to tion in the Court by other women's rights advo­ survlvmg on the assumption cacy groups, including the National that mothers~and not fathers~were involved tion for Women, the Women's in the care of their children and that Fund, and the National Women's Law Center. fathers--and not mothers-were their fami­ lies' breadwinners94 The Court adopted the Harriet Sturtevant Shapiro. (l928-pl'e­ argument that such distinctions vi­ sent)l04 The history of women's first 100 olated the Fifth Amendment's Due Process Court advocates would not Clause and struck down the provision. without the career of Between 1971 and I filed the first woman member of the Solicitor Gen­ merits briefs on behalf of parties in a total of eral's Office, Harriet Shapiro, who was hired nine cases,95 six96 In all of the by then~Solicitor General Erwin Griswold S8 JOURNAL OF SUPREME COURT HISTORY

"It was really exhilarating ... but we were always tired," recalled Justice Ginsburg (center) about her time litigating at the Women's Rights Project in the 1970s. Her son James and nephew David (below with Ginsburg, left to right) attended her 1979 argument in Duren v. Missouri challenging a law that allowed women-but not men-to opt out of jury service to attend to their home and family. in 1972. Over the course of the next twenty­ uniform? Some custom-designed skirt suits re­ nine years with the Solicitor General's sembling morning coats, while others opted for Office,105 Shapiro briefed seventy-two cases other somber-colored suits. The retention of and argued seventeen,106 a record passed only the morning-coat tradition marks women ad­ recently by Beth Brinkmann, who argued vocates as different from the norm, as "nonuni­ nineteen cases for the Office between 1994 form," as had the hat of an earlier era. and 2001. 107 Shapiro was not, however, the first woman from the Solicitor General's Office to argue VI. Why Does It MaUer That Women before the Court. That di stinction belongs to Have Served-and Continue to Jewel LaFontant, 108 a political appointee, who Serve-as Supreme Court Advocates? preceded Shapiro in presenting argument in the In considering the question of "why it mat­ Court's 1972 Term. ters" that women have served as advocates be­ I began this article by addressing the prob­ fore the Court, J have developed a number of lem of the hat for early women lawyers, and hypotheses, which are neither mutually exclu­ I would like to conclude by highlighting the sive nor exhaustive of potential explanations problem of the morning coat for women in the for the significance of women's participation Solicitor General's Office. The charcoal-gray in the Court. morning coat has been, and continues to be, the standard uniform worn by male members of the Solicitor General's Office when appear­ 1. Equality/nondiscrimination ing before the Court. J09 What were women in This hypothesis suggests that women's par­ the Solicitor General's Office to do with this ticipation as Supreme COUli advocates is 58 JOURNAL OF SUPREME COURT HISTORY

"It was really exhilarating ... but we were always tired," recalled Justice Ginsburg (center) about her time litigating at the Women's Rights Project in the 1970s. Her son James and nephew David (below with Ginsburg, left to right) attended her 1979 argument in Duren v. Missouri challenging a law that allowed women-but not men-to opt out of jury service to attend to their home and family. in 1972. Over the course of the next twenty­ uniform? Some custom-designed skirt suits re­ nine years with the Solicitor General's sembling morning coats, while others opted for Office,105 Shapiro briefed seventy-two cases other somber-colored suits. The retention of and argued seventeen, I06 a record passed only the morning-coat tradition marks women ad­ recently by Beth Brinkmann, who argued vocates as different from the norm, as "nonuni­ nineteen cases for the Office between 1994 form," as had the hat ofan earl ier era. and 2001. 107 Shapiro was not, however, the first woman from the Solicitor General's Office to argue VI. Why Does It MaUer That Women before the Court. That distinction belongs to Have Served-and Continue to Jewel LaFontant,108 a political appointee, who Serve-as Supreme Court Advocates? preceded Shapiro in pre senti ng argument in the In considering the question of "why it mat­ Court's 1972 Term. ters" that women have served as advocates be­ I began this article by addressing the prob­ fore the Court, J have developed a number of lem of the hat for early women lawyers, and hypotheses, which are neither mutually exclu­ I would like to conclude by highlighting the sive nor exhaustive of potential explanations problem of the morning coat for women in the for the signi ficance of women's participation Solicitor General's Office. The charcoal-gray in the Court. morning coat has been, and continues to be, the standard uniform worn by male members of the Solicitor General's Office when appear­ 1. Equality/nondiscrimination ing before the Court. 109 What were women in This hypothesis suggests that women's par­ the Solicitor General's Office to do with this ticipation as Supreme Court advocates is WOMEN AS SUPREME COURT ADVOCATES, 1879-1979 59

important, regardless ofits impact on case out­ agenda and thereby changing the shape of the comes, because we as a society value equality law through their participation. In thi s regard, of opportunity and freedom from discrimina­ there has been a notable increase in the num­ tion in gaining access to professional experi­ ber of cases brought before the Court raising ences of this nature. concerns ofparticular interest to women as the number ofwomen advocates has grown. I think 2. Legitimacy/representativeness here of cases related to employment discrimi­ This hypothesis posits that having women par­ nation, violence against women, sexual harass­ ticipate in the Supreme Court process pro­ ment, family-leave rights, affirmative action, motes publ ic trust and confidence that justice and gay rights, to name but a few. will be served. Women 's participation furthers the perceived legitimacy ofthe judicial process *** as a more inclusive and representative system. In the end, arguing before the Supreme Court connotes being the ultimate lawyer, 3. Insider/outsider the ultimate gentleman, and even the ulti­ Borrowing from the political-science litera­ mate warrior, given that military references are ture, this hypothesis asserts that it is important not infrequent in the Supreme Court practice to have "insiders" operating within the system literature.llo The importance of advocacy in who can advocate "outsider" perspectives for this forum for making a mark on history can­ those who do not otherwise have access to or not be overestimated, where the greats have influence over decisionmakers. This hypothe­ shaped the law, as well as the public's and the sis appl ies with particular force to advocacy profession's understanding of what it means to before the Supreme Court, where some repeat be a lawyer. In a profession inextricably linked players take on the mantle of "insiders," gain­ in the public's mind with authority, the exercise ing credibility in front of and tmst from the of that authority by women at the highest level Justices, which they can then use to benefit is a powerfully symbolic act. "outsiders"-who have historically included And in those cases in which women have women. presented argument on issues ofparticular con­ cern to women, the effect of women's partici­ 4. Educational/inspirational pation is that much more profound. No longer This hypothesis recognizes that women's par­ must women ask men to plead their interests. ticipation at the highest levels of the pro­ Instead, they are empowered to state their own fession is important for shattering stereo­ cases, and in so doing, further empower them­ types and modeling possibilities of women's selves. achievements in the law for present and future generations. ' Special thanks to Dean Claudio Grossman for supporting the research that enabled this talk, 5. Difference and to my assistants, Erin Shute, Amy Jiron, This hypothesis anticipates that different styles Christina Vitale, and Emily Gallas, for their of argumentation, ideology, and/or outcomes wonderful work. can be associated with women's Supreme Court advocacy. Whether premised on biol­ ENDNOTES ogy, biography, or both, there is less evidence IAn earlier arlicle examined the ex perjences of the first of women modeling a different style of ad­ twenty women members of the Supreme Court bar, who vocacy and more of women bringing a dif­ joined between 1879- the year the Court's rules were ferent set of issues to the table, changing the changed to provide for women's admi ssion-and 1900. 60 JOURNAL OF SUPREME COURT HISTORY

Mary L. Cl ark, "The First Wom en Members of the by graduating from law sc hool , but by apprentic ing in the Supreme Court Bar, 1879- 1900," 36 San Diego L. Rev. office of an established bar member. The apprenticeship 87 (1999). model was a significant hurdle for wom en to overcome, be­ 21n the 1883 Term , for example, there we re 279 new cause few attorneys were willing to take a women-trainee ad mittees-and no women. ld at 93 (citing Su preme Court into the ir practices. Those women who fo und appren ti ce­ Attorney Rolls, Vol. 3 [1870 Tenn- 1883 Term] [on fil e ships often did so in the law offices of their husbands or with the Natio nal Archives]). In the 1889 Term, there fathers. were 322 new admi ttees, including five women.ld (c it ing 9Clark , supra note I, at I 16. See also Virginia G. Supreme Co uri Allorney Rolls, Vol. 4 [1884 Term-I 897 Drachman, " My 'Partner' in Law and Life: Marriage in Term] [on file with the Natio na l Archives)). the Lives of Women Lawyers in Late I 9' 11 _ and Early 20'h_ JC lare CuShman , "Women Advocates Before th e Supreme Century America," 14 Law & Soc. Inquiry 22 I, 228-30 Court" 26.J ofS. 0. Hist. 67, 79 (200 I). While 23 0,000 (1989) (notin g, "Set against wo mcn's entry into medicine, attorneys havc joined the Courl'S bar since its cre­ the entrance of wom en into the legal profession was de­ ation, women number only in the seve ral thou sand. The cidedly modest. In the second half of the 19,h century, Supreme Court A to Z (Congr. Quarterly 1998) at 40. 14 regular all- women's medical schools opened to prov ide 4Assistant to the So licitor General Harriet Shapiro, whose wo men with the medi ca l educa tion unavailable to them at own career is highlighted below, remarked on thi s phe­ the male-run medical school s. By 1880, there were more nomenon in an interview wi th the Washington Past, sug­ th an 2,400 women doctors, represcnting 2.8 percent of gesting, "Maybe one of the reasons women don't do it the physicians in the United States, and by 1900, their as much is because [the opportunity] goes to the biggest numbers had risen to more than 7,000 and they made up na me in the finn .. . or the perso n who has the most 5. 6 percent of the doctors nationwide."). clout in the offi ce." Joan Riskupic, "Women Are Still Not IOThere were 7,000 women doctors at the turn of Well-Represented Among Lawyers Faci ng Supreme Test; the ce ntury, as compared with 1,000 women lawyers. Despite Gains for Female Advocates, High Court Is Drach man , supra note 10, at 228-30. Largely a Man's Venue," Washington Post, May 27 , 1997, II Clark , supra note I, at 3 (citing McG uire, supra note 4, at at A03. 13 5). Today, approximately, two-thirds of new admi ssions 5See Mary L. Clark, "The Founding of the Washington are done by mail. Supreme Court A to Z. supra note 3, College of Law: The First Law School Established By at4 I. Women for Women," 47 Am. U L. Rev. 613 ,618 n. 27, 12The Order went on to note, "[T]he Court does not feel 62 In. 42 , 622 n. 45, 634 n. 149 (1998) (recounti ng early ca lled upon to make a change, un til such a change is re­ hi story of women in legal education and the profession) . quired by statute, or a more extended practice in the high­ Some ofthe early "fi rsts" for women in the legal profession est courts of the States." Order of November 6, I 876, in include: SUl11mOlY of Even/s, I I Am. L. Rev. IR76-- 1877 , at 367 (Moorfield Storey and Sa muel Hoar, eds., 1877). • Arabella Mansfield, who in 1869 became the first IJFrom Lockwood 's ori ginal peti tion to Congress, on file woman adm itted to any state 's bar when she success­ with the Congressional Records Di visi on of the Nati onal fu lIy read for the Iowa bar; Archives. Emphasis in original. • Was hington University Law School in St. Loui s, 14Ji ll Norgren, " Before It Was Merely Difficult: Belva Missouri, which in 1870 beca me the first law school Lockwood's Life in Law and Politics," 24 .J. of S. Ct. to open its doors to women; His/. 16 ( 1999). Myra Bradwell 's Chicago Legal News • Ada Kepley, who graduated from the Union College of gave extensive cove rage to Loc kwood 's efforts to join Law in Chicago in 187 I, becoming the first woman the Supreme Court bar. See, e.g., "Women's Right to to graduate from any law school ; and Practice in the U.S . Courts," Chi. Legal News 169 • Charlotte Ray, who became the fi rst African-American (Feb. I0, I 877) (reporting introduction in Hou se of woman to join a state 's bar when she became the Representatives of " Bill to Relieve the Lega l Di sabil­ first woman member of the D.C. bar in 1872. ities of Women"); "Women as Lawyers," Chi. Legal 6Bradwell v. Illinois, 83 U.S. 130, 139 ( 1873). News 27 1-72 (May I I, 1878) (reporting House deba te 7M at 141 (Bradley, J., concurring). on bill); see also "Summary of Events," 12 Am. L. 8Some law sc hools admitted women from the time of their Rev., 1877-1878, at 39 1 (Samuel Hoar and Moorfield fo unding-for exa mpl e, Howard Law School (in 1869) Storey eds., 1878 ) (reporting introduction in Hou se of and the University of Mi chi ga n Law Sc hool (in 1870). bill "providing that women should be adm itted on the Others did so by amending thei r original male-on ly ad­ same terms as men to practise [sic] in all th e Fe deral mi ssion policies to include wo men-for exampl e, New courts."). York Uni vers ity Law School, in 1890. Nevertheless, mo st IS"An Act to Re lieve Ce rtain Lega l Disabilities of aspiring lawyers entered the profession at this time, not Women," 20 Stat. 292 (1879) (providing "[t]hat any WOMEN AS SUPREME COURT ADVOCATES, 1879-1979 61

woman who shall have been a member of the bar of the [906, at 9 (reponing, " First Time in Hi story that the Jus­ highest court of any State ... for the space of three years, tices Ha ve Li stened to an Oral Argument From a Member and who shall ha ve maintained a good standing before of the Gentler Sex, Spoke Rapidly, but wi th Clearness" ). such court, and who shall be a person of good moral char­ 28Clark , supra note [, at 105 (citing 202 US. at 132). acter, shall , on motion, and the production ofsuch record, 29 Neither Adkins v. Children:, Hospital ofD.c., 261 US. be admitted to practice before the Supreme Court of the 525 (1923), nor West Coast Hotel v. Parrish, 300 US. 379 United States."). (1937), involved female counsel in the Supreme Court, 16J. Clay Smith, Jr. , Emancipation: The Making of the though Josephine Go[dmark assisted Feli x Frankfurter Black Lawyer 1844-1944 (1993) at 85 n. 224 . in developing the social-science data relied on in the t7('[ark, supra note [, at 92. Adkins brie f, just as she had assisted Brandeis in his brief tgThe sing[.e biggest proponent of thc o[d-girls' net­ in Muller v. Oregon, 208 U.S. 4 [2 (1908). Goesaert v. work was E[[en Spencer Mussey, founding Dean of the Clearv was briefed and argued by a woman in the Supreme Washington College of Law, the first [all' school estab­ Court, Anne R. Davidow, who rcpresented twenty-four [i shed by women and for women, in [896. Dean Mussey women bartenders in the case. 335 U.S. 464, 465-66 moved the Suprcme Court bar membership of at least ( 1948). twenty-five of her women graduates in the first twenty .l0Beverly Blair Cook, "Annette Abbott Adams," in years of the [all' school's operation. "Women Admitted to Notable American Women (1989) at 3. Practice in th e Supreme Court ofthe United Stales," on file .lIThe Eighteenth Amendment was repealed by the at the Supreme Court Library (listing ninety-seven women Twenty-First Amendment in [933. admitted to practicc before the Supreme Court by [920 and .12 Kenneth Jost, "Women at Justice: Meese Wa s Part of noting that Mussey sponsored twenty-five of them). the Problem. Is Thornburgh the So[ution?" 75 A.B.A . .J 54 I'JC[ark, supra notc [, at 88. See Virginia Drachman, (Aug. 1989). Women Lawyers and the Origins of Professionallden­ DUpon leaving office, Adams "criticized the countly for tity in America: The Letters of the Equity Club, 1887 bcing ' hysterical about booze' and the govcrnment for to 1890 ([ 993). The " Equity Club" was a correspondcnce the la xity of enforcement of prohibition bws." Cook, society ofwomen attorneys that operated in the [880s and supra note 31, at 4. Adams returned to California in [890s. 1921, engaging in pri va te practice before being named 20See, e.g., Nancy Cott, The Grounding of Modern to the California appellate court in [942. See Joey Dean Feminism (Ya[e Univ. Press [987) at 13. Horton, "Annette Abbott Adams," Stanford Law School's 21The other major women's rights case of the time, Minor women's history. website, http://www.law.stanford.edu/ v. f-iappcrs ell, 88 U.S. (2[ Wal!.) [62 (1 875), invo[v­ [ibrary/wlhbp/papers/aaahtml.htmi (last accessed Decem­ ing a constitutional chal[enge to the excl usion of women ber 18,2004). from suffrage in Missouri, was briefed and argued by While in private practice, Adams filed petitions for re­ Mr. Francis Minor, husband of Virginia Minor, the denial view in sevcn cases in the Court. Five ofthese were denied of whose petition to vote gave ri se to the action. outright: see Kam'da v. United States, 259 U.S. 583 (1922) J.lNorgren, supra note 15 at 30. (cert. denied from Ninth Circuit); Baldini v. Uniled States, 21 131 U.S. app. c[xxxvii (1880). Lockwood's co-counsel 262 US. 749 ( 1923 ) (cert. denied from Ninth Circuit); in the Court, Mich~c1 Woods, argued the appeal, which Lillieton v. United States, 269 U.S. 562 (1925) (cert. de­ strl'tehc'd on for two days, though Court records note that nied from Ninth Circuit); Inlerslate Transit Co. v. Rogers, Lockwood also spoke on behalf of the Kaisers. 284 ,S. 640 (1931) (cert. denied from California Supreme 24See Plaintiffs' Bill of Complaint at 1-5, Kaiser v. Stick­ Court); and Siandard Oil Co. o/California v. United States, ney (cquity doc. 15, No. 4552), on file in the National 309 US. 654 (1940) (cerr. denied from Ninth Circuit). Two Archives with the Supreme Court records for this case were dismissed after cert. had been granted: see Higgins v. (131 U.S . app. c[xxxvii). Caliji)rnia Prune alld Apricot Growers, Int;. , 273 U.S. 781 25 131 US app. clxxxvii. . (1927) (cert. dismissed with costs per stipulation of eoun­ 26Thc Coun in III re Lockwood, [54 US. 116 ([ 894), de­ se t); ~ nd SOLi thern California Edison Co. v. Herll1inghaus, clared, "It was for the Supreme Court of Appeals to con­ 275 U.S. 486 (1927) (cert. dismissed as improvidently struc the statute of Virginia in question, ancl to determine granted). In several of these cases, Adams' successor as whet her the word 'person' as therein used is confined to assistant attorney general, Mabe[ Walker Willebrandt, WJS males, and whether WOmen are admitted to practice law in on the other side of the case. that Commonwealth." Id. J4 Dorothy M. Brown, "Mabel Walker Willebr~ndt," in 27 Unit ed States v. Cherokee Nation, 202 U.S. 10 I ([ 906). Notable American Women (1989) at 734-37. Lockwood's oral argument was reported in th e Washington JSDorothy M. Brown, Mabel Walker Willebrandt: Post. "Court 1[cars Woman, Mrs. Lockwood Argues Be­ Power, Loyalty, and Study of Law (Univ. of Tenn. Press fore Supreme Tribunal," Wa shington Post, January [8, 1984) at 75. 62 JOURNAL OF SUPREME COURT HISTORY

361d The month was February 1927, Brandeis briefed but did argue. this case, But, here }7Brown, supra note 35, at 735. as in Margolin, Justice Brandeis recuscd himself ,XJallles Everard:" v. Day, Prohihition Direc/or from argument and decision, This lime, Brandeis won; the of/he S/aie of York, 265 U,S, 545 (1924). Another Court reversed the lower court', judgment and remanded Prohibition·era in which Willebrandt parlicipated for further proceedings for the landlord to demOnslrate its was Steamship Company v, Mellon, 262 U.S, 100 future rcnt claim, Susan Brandeis also filed two petitions (1923), presenting the question of whether liquor could re· for review mlhe Supreme Court that denied, See The main in storage on foreign vessels temporarily docked in CubaJJ·American Sugar v, UniledSwtes, 309 U.S, 681 U.S, ports without violating the Eighteenth Amendment (1939); BuckleyI' Cbrisllltas, 14 US, 679(1941). and/or the Volstead Act. noting that thc laws of' 51This was Margaret Corcoran, who was hired by Justice France, Italy, and Holland required the stocking of intoxi· HugoBtack in 1966, Corcoran was thcdallghterofThomas eating liquors for the benefit of crew and passengers, Jus· Corcoran, a Washington insider better known "Tommy tice Van Devanter, writing for the Supreme Court majority, the Cork," Subsequently. Martha Field clerked for Justice concluded that Prohibition applied to foreign even Abe Fortas in 1968, Barbara Underwood clerked for Jus· to those in U,S. waters on temporary tice Thurgood Marshall in 1971, and an increasing num· 30John G. Tomlinson, Jr" "Earnest and Sincere in Their bel' of women clerked for Justices in the that Work," 10 S Cal, Rev. L & Women:5 SlUe!. 117 (2000), followed, See Ruth Bader GlI1sburg, "Founder's Day Re­ 40" 1985 Survey of Books Related to the Law: marks," 5 Am, UJ Gender and 1,3 (1996), "''

63William Douglas, The Court Years (Random House dent. Thereafter, Motley named to the US. District 1980) at 184-85. COllrt for the Southern District of New York President ('"See Supreme Court Decisions and Women's Rights, Johnson in 1966. Tnc New York Times reported nom­ SlIprll note 50, at 1 have not been able to confirm this ination as Iront-page news. Senator James O. Eastland, figure. long-time Chair of the Judiciary Committee and Cushman, supra note 3, at 77 (noting, "The all-time senior Senator from Mississippi, stalled Motley's nom­ women', record for arguments the Supreme Coun part of his effort to de- belongs to Beatrice Rosenberg [1908-89] a low-profi Ie mil 11cr candidacy, claimed thaI Motley had but brilliant government attorney who, as authority on becn active in the Young Communist League. Motley be­ search and argued more than thirty before lieved the opposition her appointment was motivated by the High Court. [The men's twentieth-century record be­ gender as well as race bias: "'There was tremendous oppo­ longs to Deputy Solicitor General Lawrence G. Wallace, sition to my appointment, not only from Southern senators, who has argued more than 150 cases.]"). but from other federal judges. Some ofthis opposition was "6Aner three dec

SIThese were Gober v. Birmingham, 373 U.S. 374 (1963), she advocated pursuing an aggressive litigation campaign and Shuttlesworth v. Birmingham, 373 U.S. 262 (1963). against sex discrimination. Kerber, supra note 58, at 194-­ Their decisions were also announced on the same day, in 95. (National Organization of Women founding mem ber May 1963 . In Gober, the Court overturned the convictions Faith Seidenberg, an attorney from Syracuse, New York, of students found gUilty oftresp

Reporter 2 (1973); Ruth Bader Ginsburg, "Gender and Caltfimo v. Goldfarb, 430 US. 199 (1977); and the Constitution," 44 U On. L. Rev. I (1975); Ruth Bader Duren v /vlissollri, US. 357 (1979). Ginsburg, "Gender in the Supreme Court: The 1973 and 96Justice Ginsburg presented argument on behalf of the 1974 Terms," 1975 SliP. Ct. Rev. I; Ruth Bader Ginsburg, Women '5 Rights Project in the following cases: "Sex Equality and the Constitution," 52 Tid. L. Rev. 451 (1978); Ruth Bader Ginsburg, "Sex.ual Equality Under the fitJnliero Richardson, 411 US, (1973); fourteenth and Equal Rights Amendments," ! 979 Wash. Kahn v Sh evil1 , 16U.S. 1(1974); U L. Q. 161 (1979); Ruth Bader Ginsburg, "Remarks for Weinberger v. Wiesenfeld, 420 US. 636 (1975); the Celebration of 75 Years of Women's Enrollment at Edwards v. Healy, 421 U.s. 772 (1975); Columbia Law School," 102 CO/11m. L. Rev. 1441 (2002) Caltfano Goldfarb, 430 US. 199 (1977); (hereafter "Remarks for Celebration"). Duren l'. Missouri, 439 U.s 357 (1979). 9lGinsburg, "Remarks for the Celebration," supra note 92, 97See, e.g, Fasteau in Fronliero, 411 US. al677 (Fasteau's at 1441. then husband, Marc Fasleau, contributed importantly 92Ruth Bader Ginsburg, "Foreword to Symposium: to the Project's briefin FlVnliero), and Ross in Los Angeles Women, Justice and Authority," 14 Yale JL & Fern. 13, Dept. o/Walerand Power I: A1anhart,435 U.S. 702 (1978), 214-1 (2002) (hereafter "Forcword to Symposium') and VOH:hheimer 1'. Sch. Disi. 0/ Philadelphia, 430 U.S. Justice Brennan characterized it in his opinion in Fronliero 703 ([ 977). v. Richardson, "Traditionally, such discrimination was 98Thc Women's Rights Project filed amicus briefs in the tionalized by an attitude of 'romantic paternalism,' WhICh, following cases: in practical effect, put women, not on a pedeslal, but in cage." II US. 677, 684 (1973). This pedestal/cage Pillsburgh Press Co. v PiilsiJurgh Commission metaphor was first used by California Supreme Court Jus­ on Human Relations, 413 US. 376 ( 1973); tice Peters in tbe Saif'er Inn Sai/'er Inl1, Inc. Kirby, Cleve/and Board olEducation v. La Fleur, 14 Cal Rptr. 329, 341 (CaL 1971 US. (1972); 93[n Weinberger I'. Wiesenfeld, 420 US 636 (1975) Carning Glass Works Brennan,417 188 (Ginsburg briefed and argued counsel for plaintiff ap­ (1974); peltee Wiescnfeld), the Court struck down certain Gedliidig v Aiello, 417 484 (1974); based distinctions in the Social Security Act that provided Liberty Mutual Insurance Co. v Welzel, judg­ survivor benefits to wives and children in the case ofwork­ vacaledjor Irani olan appealable order, ing husbands' deaths, but only to the children-and not 424 U.S. 737 (1976); the husband-in the of a working wife's General Electric Co Gi/bert, 429 US. 125 This, the Court held, violated the Fifth Amendment's Due (1976); Process Clause because it discriminated against female Craig ,: Boren, US 190 (1976); wage-earners by providing them less protection tar Coker l' Georgia, 433 584 (1977); survivors than male wage-earners received and perpetu­ Dothard!'. Rawlinson, 433 US 321 (1977); ated archaic and overbroad generalization that women's Nashville Gas v. Satty, 434 US. 136 wages were not as vital to their families' support as were ( 1977); men's wages. Univ. o{C(/lijOrnia Regenls v. Bakke, 438 US 94The Project followed similar strategy in Craig v. Boren, ( 1978); 429 US 190 (1976), where the Project filed an amicus Angeles Del' 'I ofWaler and Power A4an­ brief challenging the constitlltionality of a state law that harl, Li.S. 702 (1978); set a higher minimum drinking for men than women Orr 1'. Orr, 440 US (1979); for beer. Califi:mo WesicolI, 443 U.S. 76 (1979); and 95The Women '5 Rights Project filed briefs on the merits Wengler Druggists .'vlul. Ins. 446 jI1 the following cases: 142 (1980).

Reed v. Reed, 404 Us. 71 (1971); ()9Gmsburg, "Remarks for the Celebration," at J446. Siruck v. Secrelary of Defense, cerl. granled, loold 409 US. 947,Judgmenl vacated, 409 US 1071 IOIKenneth Davidson, Ruth Bader Ginsburg, and Henna (1972); Hill Kay, Text, Cases, and Materials 011 Sex-Based Dis­ Frontiero v. Richardson, 411 US. 677 (1973); crimination (1974). Kahn v. Shevin, 416 US. 351 (1974); 102Kerber, supra notc 58, at 204. Three ofthc most signif­ Weinberger v. Wiesenjeld,420 US. 636(1975); icant on which Ginsburg worked during her at Edwards v. Healy, 421 US. 772 (1975); the Project: v. Dep'l of Employment Security, 423 US. 44 (1975); I. Reed Reed, 404 US. 71 (1971) (Ginsburg briefed) 66 JOURNAL OF SUPREME COURT HISTORY

Ginsburg filed a brief for appell ant in Reed v. Reed Brief for Appellant in Reed at 6. Noting that the Court in the summer of 1971 as a volunteer lawyer with the itself was implicit in thi s discrimination, Ginsburg un­ ACLU, before the Women 's Rights Proj ect was formed . derscored how far social norms had changed: Reed had bee n spotted by ACLU General Counsel Mar­ vin Karpatkin. See Epste in, supra note 92, at 137. Prior decisions of thi s Court have contribut ed In Reed, a mother and father, by then divorced, each to th e separa te and uneq ual statu s of women in pcti tioned to be named estate administrator for their the United States. .. [But]. . [i)n very recent seventeen-year-old so n, who had di ed of se lf-inflicted yea rs, a new appreciat ion of women's place has guns hot wounds whi le on a custodi al visit with his fa- . been generated in th e United States. Activated ther. The probate coun judge appointed th e father as by fe mi nists of both sexes, courts and legis­ administrator despite the fac t that the mother's appl i­ latu res have begun to recogni ze the claim of cation had been filed first in tim e because Idaho law women to full membership in the class "per­ provided that, "as between persons equally entitled to son s" entitled to due process guarantees of life administer a decedent's estate [such as a mother and fa­ and liberty and the equal protection ofthe laws. ther], 'males must be preferred to females. '" Ginsburg, "Remarks for the Celebration," at 1444 (quoting Idaho Brief for Appellant in Reed at 5-6, 10. Code § 15-314). In a unanimous opinion authored by Chief Just ice Ginsb urg framed the issue for decision in Reed as Warren E. Burger, the Court st ruck down the Idaho whe thcrthesex-based di stinction contained in the Idaho law as vio lative of the fo urteenth amendment's eq ual code "created a 'suspect classificati on' requi ring close protection clause. Th is was the first time in hi sto ry that judicia l scruti ny." Brief fo r Appell ant in Reed at 5. As the Court stru ck dow n a law on the grounds of sex such, Ginsburg invited use of thc stri ct -sc rutiny stan­ di scrimi na tio n, dard of re view, hitherto appli ed only to cases of fun­ 2. Frol1liero v. Richardsol1 ,411 U.S . 677 (1973)(G insburg damental rights, such as voting, and to cla ss ifi cati ons bri efed and argued as amicus, where loca l counse l-Joe based on race and national origin . Strict scrutiny re­ Levi n, Morris Decs's partner at the Southern Poverty quires the government, in defendin g it s law, to artic­ Law Center-had agreed to allow Ginsburg to dircct ul ate a compelling justification and demonstrate that th e liti ga ti on in the Supreme COllrt, but later expressed the chosen mea ns were narrowly tailored to serve the co ncern at Ginsburg's em phasis on heightened-scrutiny gove rnmental purpose. ra ther than rational-basis review in the merits bri ef). The co mplainants in Frol1 liero were Sha rron Fron­ Gi nsburg analogized sex to race: tiero, an Air Force officer, and her then husband, Joseph [I]t is presumptiVely impermi ssible to di stin­ Front iero, a full -time college student. Sharron Frontiero guish on the basis of an unaltera bl e identi fy ing had been denied access to military hou sing and medical trait over which the individual has no control benefits for her husband on the same terms th at male of­ and for which he or she should not be di sad­ fi cers had for their wives. While a male officer's spouse va ntaged by the law. Legislative discrimination was presumed dependent upon him for support , rega rd­ grounded on sex. for purposes unrelated to any less of how much she earned, Sharron Frontiero had to bi ologi cal difference between the sexes, ranks prove that her husba nd relied on her ea rnings fo r more with legisla ti ve di scrimination based on race, than one-half of hi s support in order to ga in dependent another congenital, unalterab le trait of birth, spouse benefits for him . and meri ts no grea ter judicia l deference. Eight Ju stices voted to strike down the sex- based class ification in Fronliero as unconsti tutional. In writ­ ing for a plu ra lity of four Ju stices, Ju sti ce Brennan Brie f for Appellant in Reed, at 5. Ginsburg appended to specifically cited the data Ginsburg set forth in her brief her Reed brie f a compila tion of sex-based differentials on women's underrepresentation in politics as under­ then cu rrently reflected in state and federa l law Accord­ scoring the need for heightened sc rutiny of sex -based ing to Ginsburg, "Research for the brief and appendix classi fi cations: was supplied by law student s from NYU, Rutgers, and Yale. " Gi nsburg, "Foreword to Symposium ," at 214. [W)omen are vastly under-represented in thi s Re lying on this compendium, Ginsburg argued: Nation 's decisionmaking councils. There has never been a fema le President, nor a female The distance to equal opportunity for wome n member of th is Coun. Not a single woman in the United States remains considerab le in pre se nt ly sit s in the United Statcs Senate, and face of the pervasive social, cultural and legal on ly 14 women hold seats in the Hou se ofRep­ roots of sex-based discrimination. resentatives. And, as appellants point out , thi s WOMEN AS COURT ADVOCATES, 1879-1979 67

underreprcsent8tion present throughout all Amendment Due Process Clause a U.S. Navy regula­ levels of our Slate and Federal Government. tion that allowed up to thirteen years of commissioned 411 US. at 686 n. 17 (citing Joint Reply Brief of Ap­ service to women before being mandatorily discharged pellants and American Civil Liberties Union [amicl/s for failure to obtain promotion, while requiring men's curiae] at 9). Brennan proceeded to apply strict scrutiny mandatory discharge upon being twice passed over for to the military benefit program's sex-based classifica­ promotion, even wilen fewer than thirteen years bad tion, reasoning that sex-based classifications, like those elapsed; based on race, were inherently suspect sex, like • Califano v. Boles, 443 US. 282 (1979) (Shapiro briefed race, was an immutable characteristic. and argued on behalf of the Secretary of Health, O'aig v. Boren, 429 US. 190 1I976)(Ginsburg briefed Education, and Welfare a party; joining Shapiro amicus). on brief were two women-Assistant Attorney Gen­ was most important for res,living years of un­ eral Barhara Babcock and Justice Department attorney certainty as to the level ofserutiny with which sex-based Susan Ehrlich-and a number of male colleagues), classifications would be reViewed. There, the Court ar­ holding not violative of the Fifth Amendment Due ticulated a new intermediate scrutiny standard, located Process Clause provision of the Social Security between the traditional mtional basis review and the that limited mothers' insurance benefits widows strict scrutiny accorded fundamental rights and race­ and divorced wives of male wage-earners, thereby ex­ based classifications. Applying this standard to the facts cluding mothers of children born outside of mnrriage; at issue in Craig, the Court struck down an Oklahoma and law setting a different legal age for purchasing 3.2 " Newpol'/ Nevi'S Shipbliilding & DI:v Dock v. EEOC, beer tor women and men-18 for women. and 21 for 462 US. 669 (1983) (Shapiro briefed and argued on men. behalf of The Equal Employment Opportunity I03Kay, "Ruth Bader Ginsburg, Professor of Law," at 20. miSSIon party), holding violative of the Pregnancy I040ffice of the Solicitor General, "In re Harriet S. Discrimination a limitation in a company's health­ Shapiro, Esq.: Petition for a Writ of Appreciation (2000)" insurance coverage ofpregnancy-related costs for male at 2. employees' spouses. IOsShapiro's work with the Solicitor General's OtTice was I07Beth S. Brinkmann, "First Arguments at the Supreme divided into roughly three periods. Her first was Court of the United States: A First Argument in the spent drafling bnefs and arguing cases. Her second Tradition of Many," 1. App. Prac. & Process 61 cngaged with drafting briefs, rather than arguing. In her (2003). last she assumed a variety of other tasb .. includ­ L08LaFontant had been promoted to the rank of deputy ing screening Gcrt petitions in criminal cases and respond­ solicitor general by 1975. See. Schlesinger v. Ballard, ing to Freedom Information Act requests. See "Petition 419 U.S. 498 (1975). for a Writ of Appreciation for Harriet Shapiro," bestowed 1(I~Supreme Court A to Z, supra note 3, at 427. upon Shapiro on the occasion of her retirement from the IlOSee, Kenneth Mack, "A Social History of Every­ Solicitor General's Office in 2001. The author thnnks Beth day Pmctice: Sadie T. M. Alexander and the Incorporation Brinkmann for bringing this petition to her attention. of Black Womcn into the Legal Profcssion, 1925-1960," I06Shapiro's seventeen argued included: 87 Cornell L ReI', 1405,1414-15 (2002), ("'Until women were admitted to the profession, courtrooms were battle­ • Schlesinger v. Ballard, 419 U.S. 498 (1975) (Shapiro ar­ fields where engaged in forensic warfare in front of gued, but did notbriet), holding not violative ofthe Flfth all-male juries and judICiaries"). Oral Advocacy and the Re-emergence of a Supreme Court Bar

JOHN G. ROBERTS, JR. *

Over the past generation, roughly the period since 1980, there has been a discernible pro­ fessionalization among the advocates before the Supreme Court, to the extent that one can speak of the emergence of a real Supreme Court bar. Before defending that proposition, it is probably worth considering whether advocacy makes a difference-whether oral argument matters. My view after one year on the opposite side of the bench is the same as that expressed by no less a figure than Justice John Marshall Harlan- the second one- forty-nine years ago, after he completed his year on the Court of Appeals for the Second Circuit. I Justice Harlan lamented what he saw as a growing tendency among the bar "to regard the oral argument as little more than a traditionally tolerated part of the appellate process," a chore "of little importance in the decision of appeals."2 This view, he said, was "greatly mistaken.") As Justice Harlan told the bar, "[Y]our oral argument on appeal is perhaps the most effective weapon you have gOt."4 By the time he made his remarks to the in some significant respects. On the court of Fourth Circuit Judicial Conference meeting in appeals, we hear arguments in panels of three Asheville, Judge Harlan had become Justice and hear many more cases than the Supreme Harlan, and his remarks included reflections Court hears. We therefore give the parties less on not only his time on the Court of Appeals time for oral argument. Rather than the half­ but also a few months on the Supreme Court as hour per side that is typical in the Supreme well. My experience has been limited to what Court, we often budget ten or fifteen minutes Article III of the Constitution refers to as an a side. But at the same time, because we sit in "inferior" court-surely James Madison's fa­ groups of only three, we are able to be a lit­ bled gift for finding just the right word failed tle more flexible, keeping counsel as long as him in that instance. Oral argument before a we think they are being useful-an additional court ofappeals and the Supreme Court differs ten minutes, fifteen minutes, even a half-hour. ORAL ADVOCACY 69

"Your oral argument on ap­ is perhaps the most ..ff!~ctil~~ weapon you have .. Justice John Marshall remarked in 1955 in an address to the judicial conference of the Fourth Circuit Halling served on the Court of Appeals for the Second Circuit and re­ cently been appointed to the U.S. Supreme Court, Harlan viewed the tendency to be­ little the value of oral argu­ ment as a mistake.

We also hear argument the Court Most advocates there have venors and amici, while in the found that it is not a worthwhile the only non-party that is heard from, except of their time to debate with the authors about in rare cases, is the United the what their opinions mean. But these distinc­ Solicitor General's Office. tions the oforal argument and There is also a substantive ditference be­ its role is really quite similar in a court of ap­ tween before the Court and the Court. and before a court of Ol-'IJ;""'" My main conclusion after a year of be­ of appeals, we spend quite a bit of time at an the other side of the bench is that oral and over what argument is terribly, terribly important. I feel Court opinions mean, because we more confident about that now than I ever did are bound by them inexorably. That is as an when the question "does not a part of an argument in oral argument ever matter')" does not carry the 70 JOURNAL OF SUPREME COURT HISTORY same existential angst it did when it was what Harlan's view on the importance of oral ar­ I did for a living. Oral argument matters, but gument. Justice Joseph Story reported that not just because of what the lawyers have to [Chief Justice Marshall] was solic­ say. It is the organizing point for the entire itous to hear arguments, and not judicial process. The judges read the briefs, to decide causes without hearing do the research, and talk to their law clerks them .... No matter whether the sub­ to prepare for the argument. The voting con­ ject was new or old; familiar to ference is held right after the oral argument- . his thoughts or remote from them; immediately after it in the court of appeals, buried under a mass of obsolete shortly after it in the Supreme Court. And with­ learning, or developed for the first out disputing in any way the dominance of the time yesterday-whatever was its na­ briefing in the decisional process, it is natural, ture, he courted argument, nay, he with the voting coming so closely on the heels demanded it. 5 oforal argument, that the discussion at confer­ ence is going to focus on what took place at Chief Justice Charles Evans Hughes said that argument. oral argument was desirable because it al­ Oral argument is also a time-at least for lowed the Court to "more quickly . .. separate me-when ideas that have been percolati ng for the wheat from the chaff."6 In 1951, Justice some time begin to crystallize. I- and 1 think Robert H. Jackson reported that the Justices on many judges- are aggressively skeptical when his Court would unanimously say that they re­ they prepare to confront a case. Upon reading a lied heavily on oral argument.7 And fifty years brief, my reaction is not typically "Well, that's later, the current Chief Justice has written that a good argument," or "That's persuasive," but oral argument does make a difference and that instead "Says you. Let's see what the other side in a significant minority of the cases he has left has to say." In researching the cases, my reac­ the Bench feeling differently about a case than tion is, " I bet there's some authority on the when he went on.8 Thus, as the character of other side that balances it out." But however oral argument has evolvcd throughout the his­ open you try to keep yourself to particular po­ tory ofthc Court, the Justices have not wavered sitions, those doors begin to close at oral ar­ in their commitment to its importance. gument. After all, the voting is going to take It used to be that you could have an oral place very soon thereafter, and the luxury of argument at the Supreme Court and win your skepticism will have to yield to the necessity case without actually having to go through the of decision. Those closing doors often get a oral argument. In his memoir, Erwin Griswold push from what happens at argument, whether describes the practice of the Hughes Court of it be the questions from the other judges or the sometimes cutting off a respondent when the responses by the attorneys. And the former can Justices had heard enough and were prepared be just as important as the latter, because it is to rule in the respondent's favor-a practice the protocol on the inferior court on which I that still exists on many courts of appeals.9 sit-and, I believe, the general practice on the According to Griswold, Chief Justice Hughes Supreme Court as well-that the judges do not onee told a respondent's counsel that "[t]he discuss the cases before oral argument except Court does not care to hear further argument," in unusual situations. Thus, oral argument is but counsel kept talking. The Chief Justice re­ the first time you begin to get a sense of what peated his statement. The counsel just spoke your colleagues think ofthe case through their more loudly, apparently having understood the questions. Chief Justice to say " We can't hear you," as Throughout the history of the Supreme opposed to "We don't care to hear you." At Court, other Justices have shared Justice this point an exasperated Chief Justice looked ORAL ADVOCACY 71

In his memoir, Erwin Griswold described how the Hughes Court would sometimes cut oft a respondent when the Justices had heard enough and were prepared to rule in the respondent's favor, Griswold served as Solicitor General from 1967 to 1973. to the who of course had with a concise of the case, state the realized he was to lose his case be­ of the court below and wherein it cause they were cutting offthe ar­ is challenged[,] ... follow with a careful gument, and said "Won't you tell coun­ statement of facts, and conclude sel that the Court does not care to hear further with discussion of the law."12 those argument," Petitioner's counsel got up, strode must have been the the to the and said say would most uninterrupted time that an advocate is rather you the case than listen to yoU."IO likely to get before the Court is a Which I guess was drawing some solace from of minutes at the outset of argument. his defeat. When I was for Court Oral argument ll1 the Court and in most courts of first sentence, -consists largely of responding to point and any from the bench. In his famous 1940 first sentence lecture on oral auvv'~"" to the Association IY.. nw"""'{~ one out in the course of the of the Bar of the of New York, John W. argument. Davis told advocates that should state Court oral argument has the nature of the case, its prior history, the been vigorous and Some advocates facts, and the applicable rules of law. I I In his have collapsed in the face of it. The story famous 1951 talk to the State Bar has been told oftentimes of Solicitor General of California, Justice Jackson said Stanley F. Reed and being unable to 72 JOURNAL OF SUPREME COURT HISTORY

Solicitor General Stanley F. Reed was unable to continue his argument defending the Agricultural Adjustment Act in 1935 after being barraged with technical questions from the Justices. proceed when he was faced-as the New York Hughes Court. 13 A little less well-known is Times put it-with "a barrage of technical the story of the advocate in a commercial­ questions" from the nine Justices while try­ fraud case that was argued sixty years ago. The ing to defend New Deal legislation before the Justices were a bit exercised about the facts, ORAL ADVOCACY 73

fore the Supreme Court. The went on as follows:

An coincidence that to the mind of one of Court ees, and that was amply verified in the course ofthe was the fact that about years ago, Hon. Thomas the father ofGen. who was twice a United States Senator from Ohio, of the President and the S1"<'l"t't"r'v of the Interior under had such a very simi­ lar way, and under the same conditions. While an argu­ the Court he in about three feet of the Slink on the

When the elder he was ac­ Thomas Ewing, a Senator from Ohio who would serve not removed from the Court until after in the Cabinet under two Presidents, fainted while 16 The Court did not continue 10 hear delivering oral argument before the Supreme Court in 1869. The propensity to faint obviously ran in the in other cases over the prone family: his son, General Thomas Ewing (pictured), of Senator [t adjourned; the Justices suffered the same misfortune when he collapsed be­ fore the Justices during oral argument in 1895. gathered around Senator his family and friends were called and physicians were summoned. He eventually recovered and went and the focused on a particular on to live several more years of a very pro­ affidavit. At one point, Justice William 0. ductive life. Among the family members who demanded to know "who drafted this came to his side while he lay in the well of the " at which point the lawyer fainted Court was his son, who continued the dead away, hitting his head on the table on swooning tradition years later. 17 the way to the floor. Court was adjourned and every advocate who has a doctor was called for. When re- any kind of advice about before the the but unbowed- Court has the same advice about questions: an­ stood up, looked at Justice Douglas, and sai~ 'swer them. Former Solicitor General Rex Lee "That he had."14 used to say that oral advocates need The fault in these cases, however, does not saying two and no. 18 rest entirely with an overly aggressive Court. Never put offanswering a question. This is how There is some evidence that the Davis put it in his famous talk: "If you value problem may be The Washington your life do not evade or shuf­ Post of October 1895 carried an item fle or postpone, no matter how how Genera I Thomas had the question may be or how much it inter­ fainted and collapsed while a case be­ the thread of your argument.,,19 74 JOURNAL OF SUPREME COURT HISTORY

When seasoned advocate John W. Davis (pictured) made his 138"h oral argu­ ment in the Steel Seizure Case, he was able to de­ fer answering a question by Justice Frankfurter about an earlier case he had argued, Midwest Oil. When oppos­ ing counsel Solicitor Gen­ eral Philip Perlman tried the same delaying tactic, how­ ever, Frankfurter persisted until Perlman answered his question.

fast-forward twelve years from that advice to MR. DAVIS: It fell to my lot to ar­ the high drama of oral argument in the Steel gue that case. May I finish my brief Seizure case20 It was Davis's 138th argument presentation before I answer Your before the Court, and perhaps his greatest day Honor? before it. His brilliance seemed to quiet the MR. JUSTICE FRANKFURTER: Justices21 -except, ofcourse, for Justice Felix Yes. 23 Frankfurter, who asked about United States v. Midwest Oil Co.,n a case Davis had ar­ And it was in fact some time before Davis re­ gued forty years earlier when he was Solicitor turned to Frankfurter'S question, saying "Now, General that seemed to be inconsistent with his Your Honor mentioned the Midwest Oil cases. present position. Let me dispose of that. ,,24 But what was particularly revealing is MR. JUSTICE FRANKFURTER: what happened next, when Solicitor General What about the holding operation Philip Perlman stood up to argue, defending whereby the President took action in President Truman's seizure of the mills. It was the Midwest Company cases, and the not to be Perlman's greatest day before the relationship of his action to the wi" Court; he would have better. This time he of Congress? was being badgered with questions25 Justice ORAL ADVOCACY 75

Frankfurter asked him the same question he prediction rate. So the secret for successful had asked Davis, don't need to read you don't need to rcad Jackson-the secret to suc­ MR, JUSTICE FRANKFURTER: cessful advocacy is simply to the Court to , , ,Do you suggest that this nOI1­ ask your opponent more action of is the But while the level of has to what was done in the Midwest Oil remained constant over the last generation, case? there have been other and significant MR PERUvIAN: I want to go into ones, Others have commented often that Midwest Oil case later on, about the decline in the number of cases the Court hears on the merits. 3o The But Frankfurter would not Jet him do that. He Court now hears over half the number iust Perlman'$ effort ques­ of cases it heard in 1980. There has been a tion and came back with a half-dozen more lot of hand-wringing at the bar, of course, on the same This over this. [ used to think it was a must have seemed very unfair to Perlman, I but ovcr the last year I have come to real­ think the Jesson is: because John W Davis ize that it is not that serious a problem at all. dOll '( think that I think the phenomenon to well. by the abolition of the Court's Over the last gCflenltl of ",,'vni"WV be- pellate jurisdiction in 1988, and COllrt onc that has rc­ the departure from the Court ofJustice Byron constant has been the level of R. White. Justice White constantly advocated I took the first and last cases of having the Court hear more cases, to the extent each ofthc scven sessions in the 1980 that he would write and publish dis­ Term and the first and last in each of scnts from denials the var­ sessions in the 2003 Term ious circuit conflicts he thought the Court was overlooking. But whatever the reasons, the sharp de­ III cline in the number of opportunities for lawyers to argue before the Court has been there were paradoxically or per­ more on average, for the respondent than for the petitioner. said that an advocate cates when the Court asks ques­ solute terms and proportionately. many I say unto you," he wrote, event, was my impression, and I decided to " But apparently too much rejoicing test it the who can be a bad Recent studies have begun in the 1980 Term and those who to suggest that you can tell how a case is 2002 Term, In I looking at oral to come out simply by which side was by non-federal government asked the most the side with the is, basically the Solicitor General's most questions is to lose. In the twenty- Office-fewer than 20 cases I looked at, fourteen from the had ever before the 1980 Term and fourteen from 2003, the most­ before. In 2002, that number had more than questions-asked "rule" the winner- doubled, to over 44 percent. or, more the loser-in n''''nn.J_TI The is even more dramatic if you of those cases, an 86 look at what 1 will call experienced advocates. ORAL ADVOCACY 75

Frankfurter asked him the same uu,"",,'V' he rate. So the secret for successful had asked Davis. advocacy-you don't need to read Davis, you don '( need to read laekson--the secret to suc­ MR. JUSTICE FRANKfURTER: cessful is to the Court to .. Do you suggest that this non- ask your opponent more questions. action of is the But while the level of questioning has to what was done in the Midwest Oil remained constant over the last OPt1P,'"t\ case? there have been other changes, and significant MR. PERLMAN: I want to go into ones. Others have commented often that Midwest Oil case later on.26 about the decline in the number of cases the Court hears on the merits.30 The But Frankfurter would not let him do that. He Court now hears just over half the number Perlman's effort to of cases it heard in 1980. There has been a tion and came back with a half-dozen more lot of at the bar, of course, on the same This over this. I used to think it was a must have ,:,cemed very unfair to Perlman. r but over the last year I have come to real­ think the lesson is: ize that it is not that serious a problem at all. gets away with I think the is largely explained to well. by the abolition of the Court's mandatory ap­

Over the last ,.,"'"""" ••",, of ,ul\/I"\(":1<'\; be- in 1 and perhaps by one that has re- from the Court of Justice constant has been the level of R. White, Justice White advocated I took the first and last cases of the Court hear more cases, to the extent each onhe :;even sessions in the 1980 that he would write and regularly publish dis­ Term and the first and last cases in each of sents from deniuls listing the var­ SeS!,IOfIS in the 2003 Term ious circuit conflicts he thought the Court was and the :itatistics But whatever the reasons, the de­ m cline in the number of for

there were or per­ nificantly more on average, for the haps not, by an even more dramatic rise in the TPC'ni'\nrl,"nt than for the petitioner. number of Court advo­ said that an advocate both in ab­ should when the Court asks ques­ That, in any tions. "[A]gain I say unto you," he wrote, event, was my impression, and I decided to But too much test it by the who can be a bad thing. Recent studies have in the 1980 Term and those who in the to suggest that you can tell how a case is 2002 Term. In 1980, looking at oral arguments to come out simply by which side was by non-federal government asked the most the side with the basically excluding the Solicitor General's most questions is to lose. In the twenty- Offiee-fewer than 20 percent ofthe advocates cases I looked at, fourteen from the had ever before the Court 1980 Term and fourteen from 2003, the most­ before. In 2002, that number had more than questions-asked "rule" predicted the winner- doubled, to over 44 percent. or, more the loser-in twenty-four The change is even more dramatic if you of those cases, an 86 look at what I will caJl 76 JOURNAL OF SUPREME COURT HISTORY

The author suggests that the retirement of Justice Byron R. White from the bench may have contributed to the reduction in the number of cases the Court agrees to hear each Term. A con­ stant advocate for the Court to hear more cases, White would regularly write dis­ sents from denial of certio­ rari, listing the various cir­ cuit conflicts he thought the Court was overlooking.

or recidivists-those with at least three pre­ 24 percent of the non-Solicitor General argu­ vious arguments before the Court. In 1980, ment slots, a tenfold increase. only 10 percent of non-Solicitor General argu­ [ should be quick to point out that an ex­ ments were presented by experienced counsel. perienced advocate does not necessarily make In 2002, that number had more than tripled, for a better argument. Several of the Jus­ to 33 percent. In 1980, only three lawyers tices have gone out of their way to emphasize outside the Solicitor General's Office argued that many first-timers-many only-timers­ twice before the Court, out of some 240 argu­ have presented wonderful arguments 31 I ob­ ment slots for non-Solicitor General lawyers, served first arguments in the Supreme Court by accounting for 2.5 percent of the arguments. Michael Dreeben, Walter Dellinger, and Seth (For two of those three, it was their first and Waxman from the very uncomfortable posi­ second arguments ever.) But in 2002, there tion of the opposing counsel's chair. On each were fourteen different non-Solicitor General of those occasions, I would have gladly traded repeat performers who argued at least twice­ for a grizzled veteran as an opponent. But it is many more than twice-accounting for fully reasonable to suppose that arguing before the ORAL ADVOCACY 77

Court is, like most things (including judging), senting state and local government, the United that you hope to get better at as you States Office ofthe Solicitor General is appear­ in proportionately more cases before the This rise in the number of Supreme Court than it did before. That office before the Supreme Court is re­ has gone from as a party or an ami­ flected in, and abetted by, another development of the eases in 1980 over the past generation: the rise of to at argument in over 80 of Court and the cases the last three Terms. Interestingly, the major law firms. This is office's absolute numbers have remained about of the past the same as the Court's docket has contracted. In 1980 the Solicitor General appeared in some cases; in the last three he was in and sixty-two. I do private law of course, have a very suc­ not think the Supreme Court's docket has con­ cessful model on which to draw. Since I tracted cases in which the federal government has had such a spe­ there was no interest on the of the fed­ cialized office--the Sol icitor General's Office. eral government. Instead, over the several This type in the has years the Solicitor General has filed and ar­ had ofa snowball effect. If one side in cases that that office would have let hires a Supreme Court to a pass years ago, case, it may calise the client on the other side There is a certain institutional dynamic to think that to consider doing that at work here: the Solicitor General must as well. This is off on every by the federal omfPrlnmpnt that one lawyer in town will starve, but two throughout the federal judiciary, from any level will prosper. to any other level. If the federal government There has been a develop­ loses in a district court and wants to to ment on the state and local government side. the court ofappeals, that has to be approved More and more states are copying the federal the Solicitor General. That role is much appre­ model and state solicitor ciated by those of us on the inferior courts, be­ offices. These offices certainly are devoted cause it helps ensure (at least in that the to and focused on litigation before their state United States is maintaining a consistent litiga­ supreme court and their state courts tion throughout the country. But it is But also appear far more an enormously burden on the very lim­ fore the Supreme Court of the United States ited resources of the Solicitor General's Office now than did in 1980. In the 2003 to in every case, whether the govern­ for example, a solicitor or someone ment should appeal and what position it should from that office for the states of take. The who do that work end up Alabama, Illinois, Michigan, working extremely hard, often on very mun­ and I do not want to put . dane issues. The reward, is that those too much weight on the label, but in fact same have the opportunity to appear do have an office of appellate specialist at the for their country before the Supreme Court state I think it is natural to and as­ So however much the Court's docket sume that from that office will bring may contract, there is pressure to have some­ more and to their cases one from the Solicitor General's Office appear before the Supreme Court. in more and more of those cases. with the rise of in the The net result is that the private bar and the rise of repre­ lawyers of the Solicitor General's Office, on 78 JOURNAL COURT HISTORY a relative basIs, are far more fre­ National Association of General quently before the Court than they were a direct response to ChiefJustice did a ago. T~~ n~ the snowball effect A client may not think only amicus help, but also moot court train- that it needs a Supreme Court soecialist un­ and other assistance to the rcpresen til it finds out that the federal of state and local There has been Supreme Court specialist is joining what, up a recent rise ofsimilar programs available to all to then, had been a purely private dispute. advocates before the Court The Now, when you step back from all these University Court Institute provided developments and look at the net consequence, rigorous moot court preparation for advocates In 1980, the odds that the in two-thirds of the cases before the his way to the lectern for Court the 2003 Term. The an oral argument before the Court Institute's moot court program is highly val­ had ever been there before were about one in ued by novice and advocates alike of the Solici­ because of the high and skill of the that Institute director Professor Richard to note that a Lazarus is able to attract to do the moot courts. ago, a number of the Justice:; com­ program8 have made it easier for both mented quite critically on the of oral advocates to do a argument before the Court.32 justice Lewis f. more beforc the Court Powell said that he had of There have cven been these the bar when he joined the Court, but that the same lines in the Solicitor General's Office. bar's performance "has not measured up to my who has served in the Solicitor From justice those are General's Office shares a belief that that office very harsh words. ChiefJustice Warren Burger a golden age roughly corresponding made the need for improved to the time that served there. theme of his speeches, on that something has improved in the Office the poor quality of those rep­ of the Solicitor General will to many seem 34 like because it implies that there was Around 1980, retired Justice at one time a need for All I 40 percent of the oral advocates will note is that a ago it was not Court were "incompetent,,35 And in a 1983 the a practice, maybe even a the current ChiefJustice attributed the common but not the rule~that So­ into which oral argument was licitor General's Office went through to the poor quality of oral advo­ moot courts before their arguments. That re­ cacy, noting that for many advocates before quirement was instituted by Kenneth the oral seemed to and I believe it has stuck, which I think be an opportunity to present their brief "with has allowed some from the Office of ,,36 the Solicitor General to become even better bold claim today, looking back at advocates. the last twenty-four years, is that things J would not go so far as to say that the re­ have and for the better. there emergence that J have identified ofa have been some very institutional Court bar was a response to the judicial crit­ The establishment of an advocacy icism prevalent a generation ago. But per­ program at the of State and Local haps to the extent that the Justices at that Governments and similar programs at the time identified an opportunity for improved ORAL ADVOCACY 79 quality and professionalism, the bar identi­ is no denying that something is lost as the bar fied the same opportunity and responded. The becomes more specialized. The Chief Justice Supreme Court bar that J have been discussing has referred to the "intangible value of oral ar­ is, of course, nothing like the Supreme Court gument," the point at which counsel and Court bar of the John Marshall era. No one today is look each other in the eye and have a public going to argue in half of the Court's cases, as "interchange" about the case40 If you have a William Pinkney did one year38 But more and case arising in Iowa that works its way through more, there are familiar faces appearing at the the Iowa courts, goes to the Iowa Supreme lectern-not just the curiously attired lawyers Court, and works its way to Washington, I think from the Solicitor General's Office, but faces there is something beneficial both for the U.S. from the private bar and from the states as well. Supreme Court and certainly for the Iowa bar If! am right about this, I think it raises a num­ to have Iowa attorneys present that case. That ber of interesting questions. If there has been a is true, of course, only to the extent that those re-emergence of the Supreme Court bar, when attorneys are able and willing to learn what did the old one die, and what killed it? What practice before the Supreme Court is like and is the relationship between the Court's shrink­ what it demands of them. That may turn out ing docket and the rise of the Supreme Court to be a very big challenge. It may be that not bar? More generaJly, is a specialized bar a good many lawyers with different practices to main­ thing or a bad thing for the Court? tain can set aside the months necessary effec­ Obviously better advocacy- if in fact tively to brief and to prepare for argument in that is what comes with more experienced a case before the Supreme Court. There is a advocates-is a good thing. A well-argued corresponding challenge on the part ofthe spe­ case will not necessarily be well decided; cialist as well : to become intimately steeped in sometimes the judges get in the way. But there the local character and details ofany particular is a significant risk that a poorly argued case case, so that they are able to convey that to the will be poorly decided.39 That is a risk of Justices. our adversary system. More experienced, bet­ Whether an advocate is a recidivist or pre­ ter advocates should be a good thing. senting his first and only argument before the But the developments 1 have noted do raise Court, he needs to have something of the me­ some concerns. Take the presence of some­ dieval stonemason about him. Those masons­ one from the Office of the Solicitor General the ones who bui It the great cathedrals-would in more than 80 percent of the Court's ar­ spend months meticulously carving the gar­ gued cases. If you asked me as an abstract goyles high up in the cathedral, gargoyles that proposition whether I would be troubled by when the cathedral was completed could not the idea that the executive branch was go­ even be seen from the ground below. The advo­ ing to file something in every case before the cate here must meticulously prepare, analyze, Supreme Court explaining its views, as a sort and rehearse answers to hundreds ofquestions, of super law clerk, my answer would be yes, 9uestions that in all likelihood will actually I would find that very troubling. Eighty per­ never be asked by the Court. The medieval cent is pretty close to every case, and as the stonemasons did what they did because, it was discernible federal interest in a matter before said, they were carving for the eye of God. A the Court wanes, concern about the role being higher purpose informed their craft. The ad­ played by the government increases. vocate who stands before the Supreme Court, On the private side, I would suppose that whether a veteran or novice, also needs to in­ the Justices are pleased to see good and ex­ fuse his craft with a higher purpose. He must perienced advocates present a case. But there appreciate that what happens here, in mundane 80 JOURNAL OF SUPREME COURT HISTORY

case after mundane case, is extraordinary- the IJ"Recd in Collapse; AAA Cases Halted," New York Times , vindication of the rule of law-and that he as December I I, 1935, at I. the advocate plays a critical role in the process. 14William O. Douglas, The Court Years 181 (1980). The case being argued was Hazel-Atlas Glass Co. v. Hariford­ The advocate who appreciates that does infuse Empire Co., 322 U.S. 238 (1944). his work with a higher purpose, and that higher IS"Gen. Thomas Ewing III; Compelled to Suspend His purpose will steel him for the long and lonely Argument Before the Supreme Court," f/i tshing/on Post. work of preparation, will bring the proper pas­ October 23 , J895, at 3. General Ewing collapsed while sion to his cause, will assuage the bitterness of . presenting oral argument in Farmers ' Loan & Trus/ Co. defeat and moderate the elation of victory, and v Chicago, Portage & Superior Ry Co., 163 U.S. 3 I (J 896). will, more and more, forge a special bond with IGMemorial of Thomas Ewing 284-85 (Ellen E. Sherman his colleagues at the Supreme Court bar. ed., 1873). Senator Ewing collapsed while pre senting oral argument in Maguire v. 0 ,ler, 75 US. (8Wall.)650(I869). 'This article is the printed version of a lecture 17/d. at 284. delivered at the Supreme Court Historical So­ 18Rex E. Lee , "Oral Argument in the Supreme Court," 72 ciety's Annual Meeting on June 7, 2004. AB.A .J 60, 61 (1986). 19Davis, supra note II , at 897. 20 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S . 579 ENDNOTES ( 1952). 21 Rehnquist, The Supreme Court, supra note 8, at 185 IJohn M. Harian, "Address Delivered Before the Judi­ ("Davis's argument I thought was masterful . . .. [T]he cial Conference of the Fourth Circuit at Asheville, North Court had appeared to be almost in awe of Davis, and Carolina (June 24 , 1955)," in John M. Harlan, "What asked him only one question during his ninety minutes of Part Does the Oral Argument Play in the Conduct of an argument"). Appeal?" 41 Cornell L.Q. 6 (1955). 22236 US. 459 (\915). 21d. at 6, 10-1 I . 2lTranscript of oral argument, )'oungstQwl1 Sheet & Tuhe

Jld. at 6. Co. F. Sawyer (Nos. 744, 745) (May 12, 1952), in 48 41d. at II. Landmark Briefs and Arguments of the Supreme 54 Albert J. Beveridge, The Life of John Marshall 94 n. Court of the United States: Constitutional Law 893 J (1916) (quoting Justice Story in 3 John Marshall: Life, (Philip B. Kurland and Gerhard Ca sper cd s. , 1975) Character and Judicial Services 377 (John F. Dillon ed., (hereafter oral argo tr.). 1903]). 241d. at 896. 6Robert L. Stern, Eugene Gressman, and Stephen M. 25See Rehnquist, The Supreme Court, supra note 8, at Shapiro, Supreme Court Practice 578 (6th ed. 1986) 185 ("Perlman was virtually peppered with questions from (quoting Hon. C. E. Hughes, The Supreme Court of the the [J)ustices"); Jo seph A. Loftus, "High Court Jurists United States 62-63 [1928]). Sharply Question Defense of Seizure," New York Tim es, 7Robert H. Jackson, "Advocacy Before the Supreme May 13, 1952, at I ("For nearly all of the two hours Court: Suggestions for Effective Ca se Presentations," 37 and ten minutes that [Pcrlman) wa s on his feet . . he was A.B.A . J 801 (1951) ("I think the Justices would answer under the steady pressure of interrogation."); Chalmers unanimously that now, as traditionally, they rel y heavily M. Roberts, "Right to Grab Steel Mills Is Argued in on oral presentations."). High Court; Ju stices Question Perlman on Failure to Use RWilliam H. Rehnquist, The Supreme Court 243 (Knopf Taft-Hartley Act," Washington Post, May 13, 1952, at I 2001) (1987) ("Speaking for myself, J think [oral ("Perlman . . . was the target of searching questions from argument] does make a difference: In a significant mi­ practically all of the nine [JJustices"). nority of the cases in which I have heard oral argument, J 260ral argo tr. at 907 . have left tile bench feeling differently about a case than 1 27See id. at 907--09. did when 1 came on the bench."). 28Davis, supra note II, at 897. 9See Erwin N. Gri swold, Ould Fields, New Corne: The 29See, e.g , Charles Lane, "Questions from the Bench Seen Personal Memoirs of a Twentieth Century Lawyer 92 as Clues to Final Outcomes," Washington Post , November n. 25 (1992) 3,2003, at A17. IOld. lOSee, e.g., Arthur D. Hellman , "The Shrunken Docket of IIJohn W. Davis, "The Argument of an Appeal ," 26A.B.A. the Rehnqui st Court," 1996 Sup. Ct. Rev. 403. J 895, 896-97 (1940). JISee, e.g. , Jackson, supra note 7, at 802; Rehnqui st, The 12Jackson, supra note 7, at 803. Supreme Court, supra note 8, at 248-49. ORAL ADVOCACY 81

32See Stern, Gressman, and Shapiro, supra note 6, at 578­ l3G, Edward White, !II-IV The Oliver Wendell Holmes 79. Devise History of the Supreme Court of the United 33rd at 579 (quoting Remarks of Jushce Powell Fifth States; The Marshall Court and Cultural Change, Circuit Judicial Conference, "The Level ofSupreme Court 1815-1835 208 (1988) (Pinkney "argued over half the Advocacy" 4 [May 27, 1974J [unpublished manuscript]). cases before the Marshall Court in the 18 J 4 Term"), 34Seegeneraflv it! at 579 n. 8 (citing ChiefJustice Burger's J9See Rdmquist, "Oral Advocacy," supra note 36, at !020 remarks to District of Columbia Judlclal Conference); ("I am a firm believer in the proposition that poorly Warren Burger, "Opening Remarks at the Conference on argued case, whether in the briefs in oral argument, is Supreme Court Advocacy (October 17, 1983)," in 33 apt to a poorly decided case"), Catholic U L Rev. 525 (1984). 401d. at J021 ("The intangible value of oral argument is, 35Douglas, supra 14, I to my mind, considerable, It is and should be valuable to 36WiliJam H. Rehnquist, "Oral Advocacy: A Disappearing counsel, to judges, and to the public,. ,[OJral argument Art," 35 ivtercer L Rev, lO15, 1024 (1984), offers an opportunity for a direct interchange of ideas be­ Burger, supra note 34, at 525-26, tween court and counseL"), 82

Contributors

Mary L. Clark is a visiting associate professor M. Labbe of The Slaughterhouse Cases at American University College of Law. (Kansas, 2004).

David C. Frederick served as Assistant to John G. Roberts, Jr. is a judge on the U.S. the Solicitor General from 1996 to 200 J and Court of Appeals for the District of Columbia is now in private practice. He is the au­ .and has argued thirty-two cases before the thor of Supreme Court and Appellate Ad­ Supreme Court. vocacy: Mastering Oral Argument (West, 2003). Melvin I. Urofsky is Chair of the Board of Editors of the Journal of Supreme Court Jonathan Lurie is a professor of history History and professor of law and public policy and adjunct professor of law at Rutgers at the Wilder School, Virginia Commonwealth University and co-author with Ronald University.

Correction

On page 272 of the previous issue, George Julion should have been identified as a Repre­ sentative from the State ofIndiana. On page 266, Thaddeus Stevens was correctly identified as representing Pennsylvania, but he served in the House of Representatives. 83

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