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\V, Evans Fisher W, Nealon Charles 0, Calvin Gordon 0, Kennerh S. Geller Leon Herman Bdz Frank B, GilberT B, Renfrew Barbara A, Black Wdlram BradFord Hugo L, Black, )1'. Rider Frank Rishikof Brown WiJIiamP, Wade Pamela Dwinndl R, Civilcttl Kenneth Starr Andrew M, Cathleen \Vdli,m1 Cokman, J1. Ch,H'ieS J, 1. Lancaster, Jr, Elwood Davis B, LlblJ1 Didden Maureen E. Chadron Dietz Robert E. T. DoLlll Marshal! emerai COlAnsel C Duff Mmhall, Jr, William Edlund Vincent L McKusick David T. Pride C EIJm FrancIs J, McN,lmaca, Jr. Ex[cuNy! Director R, Moderow Shurrleff W, MaillS, III Amslimi Direr/or JOURNAL OF SUPREME COURT HISTORY

200 1 vol. 26 no.

PUBLICATIONS COMMITTEE E. Barren Prettyman, Jr. Chairman Donald B. Ayer Louis R. Cohen Charles Cooper Kenneth S. Geller James J. Kilpatrick Melvin 1. Urofsky

BOARD OF EDITORS Melvin 1. Urofsky, Chairman H erman Belz David J.Bodenhamer Kermit Hail Craig Joyce Lau rrt Kalman Maeva Marcus David O'Brien Michael Parrish

EDITORIAL STAff Clare Cushman , Mal1aging Edi/or Patri cia R. Evans, Researcher Jill Ann Duffy, Resea rcher Savina Lamberr, Pho/o Researcher

Bbckwell Publishers, Boston, Mil. :,~;t chLtS c{"rs & Ox"-ord. UK GENERAL STATEMENT

TH E SUPREME COURT HISTORICAL SOCIETY is a private non-profit organization, incorporated in the District of Columbia in 1974. The Society is dedicated to the collection and preservation of the history of the Supreme Court of the United States. The Society seeks to accomplish its mission by supporting historical research, collecting antiques and artifacts relating ro the Court's history, and publishing books and other materials that increase public awareness of the Court's contribution to our nation's rich constitutional heritage. Since 1975, the Society has been publishing a QHarterly newsletter, distributed to its membership, which contains short historical pieces on the Court and articles detailing the Society's programs and activities. In 1976, the Society began publishing an annual collec­ tion of scholarly articles on the Court's bistory entitled the Yearbook, which was renamed the Journal oj Supreme Court History in [990 and became a trimester pu blication in 1999. The Society initiated the DocumentalY HistOlY of the Supreme Comt of the United States, 1789-1800 in [977 with a matching grant from the Nati onal Historical Publicati ons and Records Commission (NHPRC). The Supreme Court became a cospon­ sor in 1979. Since that time the project has completed six volumes. The Society has also copublished several books with CQ Press. The first, The Supreme Court Justices: Illustrated Biographies, 1789-1995, is a 588-page book that was develo ped by the Society and includes bibliographies of all J08 Justices as well as rare pho­ tographs and other illustrations. The second, which the Society cosponsored in 2000, is a high school textbook ti ti ed We the Students: Supreme Court Cases For and About High School Students. Most recently, the Society developed Supreme Court Decisions and Women's Rights: Milestones to Equality, a guide to gender law that is also ai med at students. In addition to its reseatch/publications projects, the Society is now cooperating with the Federal Judicial Center on a pilot oral history project on the Supreme Court. The Society is also conducting an active acquisitions program, which has contributed substan­ tially to the completion of the Court's permanent collection of busts and portraits, as well as period furnishings, private papers, and other artifacts and memorabilia relating to the Court's history. These materials are incorporated into displays prepared by the Court Curator's Office for the benefit of the Court's one million annual visitors. The Society also funds outside research, awards cash prizes to promote scholarship on the Court, and sponsors or cosponsors various lec ture series and other educational col­ loquia to further public understanding of the Court and its history. The Society has approximately 5,600 members whose financial support and volunteer participation in the Society's standing and ad hoc committees enables the organization to function. These committees report to an elected Board of Trustees and an Executive Committee, the latter of which is principally responsible for policy decisions and for supervising the Society's permanent staff. Requests for additional information should be directed to the Society's headquarters at 244 East Capitol Street, NE, Washington, D.C. 20003, telephone (202) 543-0400, or to the Society's website at www.supremecourthistoly.org.

The Society has been determined eligible to receive t.1X' deductible gifrs under seerion 501 (c) (3) under rhe Intern:ll Revenue Code. JOURNAL OF SUPREME COURT HISTORY

2001, vol 26, no.

INTRODUCTION Melvin T Uro/sky v

ARTICLES

Citacors Beware: Stylistic Variations in Different Publishers' Versions of Early Supreme Court Opinions Jon O. Newman

The Role of the Supreme Court Reporter in Hiscor),

Frank D. Wagner 9

Conscience in the Court, 1931- 1946: Religion as Duty and Choice Jif.frey MAnderson 25

Felix Frankfurter, Incorporation, and the \Villie Francis Case Willia11l M. Wiecek 53

Women Advocates Before the Supreme Court C/Me Cushman 67

Revivifying Politica l Science: Lucas A. Powe, Jr. on the W arren Court Melvin L Uro/sky 89

CONTRIBUTORS 95

PHOTO CREDITS 95

Copyri ght © 2001, by The Supreme Court Historical Society at Opperman H ouse,

224 East Capitol Street, N.E. \Vas hington, D.C.. 20003 ISBN 0-9'4785-24-9 ISSN 1059-4329 Introduction Melvin I. Urofsky Chairman, Board of Editors

This issue of the Journal contains a rather mitted to the Journal. Several years ago, the diverse set of articles. One of them, by Frank Publications Committee approved the offering Wagner, derives from the 2000 lecture series of a second Hughes-Gossett Prize. This would called "The Art of the Written Word" that the go to an article written while the author was a Society is sponsoring at the Court. These lec­ student in college, graduate school, or law tures explore the literary side of the Court, one school. In doing thi s, we are tracking what not often examined. Frank Wagner, the Re­ many other scholarly societies do as a way of porter of Decisions, traces the role of the encouraging younger scholars, and we have Reporter through history and describes his been very pleased with the results. Our win­ current duties. ners have indeed come from colleges, gradu­ As it turned out, we also received an arti­ ate schools, and law schools, and from all over cle from Judge Jon Newman on a literary sub­ the country. This year's winner, Jeffrey An­ ject. His article recounts problems he faced derson, wrote his prize essay while a master's when trying to hunt down a correct citation student at the University of Virginia, under the for an old case. Those of us who now face direction of Professor Charles McCurdy. three different reporter citations for nearly These pages also offer a glimpse into one every case may never confront such a prob­ of the forthcoming volumes of The Oliver lem, but scholars-and jurists-working in Wendell Holmes, Jr. Devise History of the earlier eras do so routinely. Supreme Court. Professor William Wiecek We are also pleased to offer the winning of Syracuse University Law School is writing entry of the Hughes-Gossett Student Essay the volume on the Stone and Vinson Courts, Prize. For those of you unfamiliar with this and we are delighted that he has agreed to award, let me say a few words. For a number publish in the Journal an excerpt from that of years, the Society has awarded the annual volume about the infamous Willie Francis Hughes-Gossett Prize to the best article sub­ case.

v VI JOURNAL OF SUPREME COURT HISTORY

This issue also offers us an excerpt from full documentation as well as some correc­ the Society's latest publication, Supreme tions and additional material. Court Decisions and Women's Rights: Finally, you will find a book review by Milestones to Equality (CQ Press, 200 I), a yours truly of Lucas A. Po we 1r.'s new look reference book for hi gh school and college at the Warren COUlt. By placing Supreme students. The editor of that work, Clare Court decisions in a larger societal context, Cushman, who also serves as the Journal's Po we has restored my faith in political managing editor, has contributed an essay ex­ science. amining the history of women advocates be­ As usual, the variety of hi story about the fore the Supreme COUlt. The Journal' s ver­ Court continues to fascinate sc holars and, we sion has been somewhat modified to feature hope, our readers as well. Citators Beware: Stylistic Variations In• Different Publishers' Versions of Early Supr'eme Court Opinions

JON O. NEWMAN

It has been generally known that early Supreme Court opinions as published in the United States Reports do not always accurately ret1ect the words of the Justices' opinions. I Of far less moment, but nevertheless an historical curiosity that should interest judges and lawyers who cite these opinions, is the fact that slight variations exist among the published versions of the same opinions, depending upon the identity of the publisher. The variations I have noticed are all only stylistic. However, it is possible that some variations, yet to be noticed, are substantive. The annotator of one version of the early reports, no less an authority than Associate Justice Curtis, acknowledged that his annotated set of the early reports has "correct[ed] such errors of press, or of citation, as a careful examination of the text has disclosed."2 rendering of the quotation from Ferreira. I I. Discovering the Variations had not capitalized "constitution," and she I first became aware of this curious aspect of thought the Supreme Court's opinion had Supreme Court history when I was aletted to a done so. The word appears on page 48 of vol­ minor discrepancy between two published ume 13 of Howard's Reports (originally cited versions of United States v. Ferreira, 54 U.S. as " 13 How.", later cited as "13 How. (54 (13 How.) 40 (1852). In preparing an opinion U.S.)", and more recently as "54 U.S. (13 for a paneJ of the Second Circuit in Lo Duca v. How.)")) I checked volume 54 of the United United States, 93 F.3d 1100 (2d Cir. 1996), I States Reports (13 Howard) in my chambers cited a passage from Ferreira. When the draft and confirmed my version ("constitution"). opinion was circulated to the panel , one of She checked hers and confirmed her version Judge Kearse's characteristically meticulous ("Constitution"). I then asked what the title law clerks, Rochelle Shoretz, called to my at­ page of her volume revealed and learned that tention what she thought was an error in my her volume 54 (13 Howard) was published by 2 JOURNAL OF SUPREME COURT HISTORY

The Banks Law Publishing Company in 1903; I have endeavored to give in the my volume 54 (J 3 Howard), embossed head notes, the substance of each de­ "53-54" on the spine, was published by Little, cision. They are designed to show Brown, and Company in 1870. the points decided by the court, not 1 subsequently learn ed more about the the dicta or reasoning of the judges. provenance of the two vol urnes she and I were The statements of the cases have using in our efforts to cite to Ferreira. Both been made as brief as possible. For volumes are, in some sense, reprints of 13 many years, it has been the habit of Howard. Her volume is the second edition of all the judges of th is court, to set 13 Benjamin C. Howard, Reports of Cases forth in th eir opinions, the facts of Argued and Adjudged in the Supreme th e cases, as the court viewed them, Court of the United States, published by The in making their decision. Such a Banks Law Publishing Company in 1903. statement, when complete, renders Howard was one ofthe official reporters of Su­ any other superfluous. When not preme Court decisions. The second edition of found complete, I have not attempted 13 Howard , as published by Banks in 1903, re­ to restate the whole case, but have flects on the title page that it has been "edited, supplied, in the report, such facts, or with notes and references to later decisions" by documents, as seemed to me to be Stewart Rapalje, identified as "author of the wanting. 'Federal Reference Digest,' etc." I have not as­ In some cases, turning upon certained whether the stylisti c preferences in questions, or complicated states of the ]903 Banks edilion are those of the Su­ facts, and not involving any matter of preme COUlt Justices who authored the opin­ law, I have not thought it necessary to ions; of Howard, the reporter; of Rapalje, the encumber th e work with detailed subsequent annotator; or of the editorial staff statements ofevidence, which no one of The Banks Publishing Company. would find it useful to recur to. These My volume of 13 Howard is the fifth edi­ in stances, however, are few. tion of 19 Benjamin R. Curtis, Reports of De­ cisions in the Supreme Court of the United States, published by Little, Brown, and Com­ The desire to make the decisions 4 pany in 1870. Curtis was an Associate Justi ce of the Supreme Court more easily of th e Supreme Court. The 1870 Little, Brown and cheaply accessible, has led me to version of 13 Howard is volume 19 in a series undertake this work. I cannot hope prepared by Justice Curtis, of which my set is th at it is not in some particul ars im­ the fifth edition. perfect. The labors of my office have I n his preface to hi s annotated set of left me little unbroken leisure to be­ United States Reports, Justice Curtis ex­ stow upon it, and I can assure myself plains hi s work as follows: of nothing concerning it, but my desi re to perform the work with This work contai ns the decisions fidelity. of the Supreme Courl of th e United Washington, December 6th, 1854. States. The opinions of th e court are in all cases given, as th ey bave been Benjamin R. Curtis, "Preface" to 1- 7 U.S. printed by the authorized Reporters, ( 1-4 Dall. , 1-3 Cranch) 3-4 (Little, Brown, 1s t after correcting such errors of the ed. 1855). Thus, it seems evident that the sty­ press, or of citation, as a careful ex­ li stic preferences in the 1870 Little, Brown amination of the text has di sclosed. version of 13 Howard are th ose of Justice PUBLISHERS' VERSIONS OF EARLY SUPREME COURT OPINIONS 3

sociate Justices. This advertising circular ex­ plains that Justice Curtis's set of Reports would include the then-existing fifty-seven volumes of what the circular called the "Old Series"-i.e., the nominate reports of Re­ porters Dallas, Cranch, Wheaton, Peters, and Howard--compressed into eighteen volumes, offered at a price of $54.00 for the set, com­ pared to $217.50 for the "Old Series. "5 Curtis's annotated set ultimately included 21 volumes of the nominate reports through 58 U.S. (17 How.), plus a di gest issued as a 22d volume.6 In preparing my opinion in Lo Duca for publication, I thought (incorrectly, as I later learned) that my earlier published version of Ferreira was likely more authoritative (and did not want my meticulous law clerks to be thought careless in their cite-Checking), so r used a lower case "c" in quoting from

In 1855, Associate Justice Benjamin R. Curtis Ferreira, but adopted a new form of citation edited an edition of Supreme Court decisions, pub­ to alert readers to th e particu lar pu bl ished ver­ lished by Little, Brown, and Company, to supplement sion of the Supreme Court opinion that I was his meager income. The stylistic preferences evi­ denced in Curtis's volume were carried over to subse­ citing. Thus, I cited Ferreira as " United States quent Little, Brown editions. v. Ferreira, 54 U.S. (13 How.) 40,14 L.Ed. 40 (1852) (Little Brown & Co. 1870)." Lo Duca, 93 F.3d at I 1067 Curtis (or perhaps the editorial staff of Little, Brown). II. A Variety of Variations An advertising circular for Justice Curtis's annotated set of United States Re­ That discovery prompted me to examine dif­ ports, prepared by Little, Brown, and Com­ ferent publishers' versions of other early Su­ pany and dated May I, 1855, includes the fol­ preme Court opinions, an inquiry that re­ lowing endorsement: vealed numerous differences in capitalization, punctuation, abbreviation, italicization, and WE ASK ATTENTION TO THE paragraphing. For example, on page 155 of FOLLOWING APPROVAL, BY the 1855 Little, Brown version of Marbury v. THE MEMBERS OF THE Madison, 5 U.S. (1 Cranch) 137 ( 1803), SUPREME COURT OF THE "president of the United States" is followed UNITED STATES:- by a comma, "second" and " third" are spelled "We approve the plan of Mr. out, a sentence describing the third section of Ju stice Curtis's 'Decisions of the Su­ Article II of the Constitution begins a new preme Court of the United States,' paragraph, and, in a quotation from a statute, and believe that its execution by him "the president alone" is followed by a semico­ will be of much utility to the legal lon and "any commission" is followed by no profession , and to our country." punctuation. However, in the 1903 Banks ver­ Below the quotation are the names of Chief sion of page 155 , " president of the United Ju stice Taney and Ju stice Curtis's fellow As­ States" is followed by a semicolon, "second" 4 JOURNAL OF SUPREME COURT HISTORY

JUDGE CURTIS'S EDITION

OF THE ~£tisiDns Df the ~n~r£m£ O1DUrt nf the ~niteh ~tat£s.

LITTLE, BROWN & CO.

LAW AND FOR E I G N BOO K S ELL E R S. B 0 S TON.

Have in Pre••, aud will .hortly Publish, THE DECISIONS OF THE SUPREME COURT OF THE UNITED STATES,

WITH NOTII8 AND A DIGEST, BY H 0 N. BEN JAM I N R. CUR TIS,

One of tfJr 'ilssodlltr lUlltic'll or tbr Q:tourt.

IN EIGHTEEN VOLUMES OCTAVO,

COMPRISING THE CASES REPORTED BY DALLAS, 4 VOLS.; CRANCH, 9 VOLS.; WHEATON, 12 YOLS.; PETERS, 16 YOLS.; HOWARD, 16 VOLS. IN ALL, 57 VOLS.

EXTRACT FROM THE PREFACR

"This work contains the decisions of the Supreme Court not thought it necessary to encumber the work with detailed of tbe United States. The opinions of the Court are in aU statements of evidence which no one would find it useful 10 cases given os they bavc been printed by the authorized recur to. These instances. however, are few. reporters, after correcting such errors of the press or of cita· .. To each case is appended" note referring to all subse­ tion as a careful examination of the text has disclosed. quent decisions in which the case in the text has bcen men­ "I have endeavored to give, in tbe head-notes, the sub­ tioned. It will thus be easy to ascertain whether a decision stance of each decision. They nre designed to show the has been overruled, doubted, qualified, explained, or affirmed ; points decided by the Court, not the dicts or reasonings of and to see what other applications have been made of the the Judges. snme Or analogous principles. .. The statements of the cases have been made as brief as "The paging of the authorized reporters h... been pre­ possible. For many years, it has been the habit of all the served at the head of each case, and in the margin of each Judges of this Court to set forth in their opinions the facts of page, for convenience of reference; the reporters being de­ the cases, as the Court viewed them in making their deci­ signated by their initials, ­ D. for Dallas, C. for Cranch, W. sion. Such a statement, wben complete, render" any other for Wheaton, P. for Peters, H. for Howard. superfluous. When not found complete, I have not attempted .. It is expected that all the decisions of the Court, down to restate the whole case, but have supplied, in the report, such to the close of the December Term, 1864, will be embraced in tacU! or document8 as seemed to me to be wanting. eighteen volumes. To these will be added a Digest of aU

If In some cases turning upon questions, or complicated the decisions." sb;tes of fact, and not involving any matter of law, I bave

This advertising circular for Justice Curtis's set of reports was endorsed by Chief Justice Roger Taney and the Associate Justices. The set included a compressed version of the nominate reports of Reporters Dallas, Cranch, Wheaton, Peters, and Howard, and sold for $54.00, as compared to $217.50 for the standard series. PUBLISHERS' EARLY SUPREME COURT OPINIONS 5 and "third" are rendered "2d" and the petition, the decision of the district court, five sentence on the third section of Article II does pages of Coxe's argument, and five pages of not begin a new in the statu­ Attorney-General Clifford's argument. See In tory "the alone" is fol­ re 46 U.S. (5 How.) 176-87 lowed by commission" is (1847) (Banks, 2d ed. I The 1906 Banks followed a comma.s Minor variations of version also includes the Court's this sort abound in these two versions of order. See id. at 191. Marbury and in the published versions of Of more many other the footnotes. as an ex­ Another sort of minor variation, poten­ ample, the 1870 Little, Brown version sup­ tially troublesome for careful citators, is an plies footnote citations to the statutes at occasional difference in pagination. For ex­ large-for example, on pages 188 and 189, the! 870 both of which are omitted in the Banks ver­ J76 (J 847), places sion. On the other hand-and more to indicate the start of page 192 in 5 cantly-the Banks version contains one ex­ How, after the word "before" in the sentence tensive substantive to a "It cannot be before. , . "; commentator and other cases 46 the 1906 Banks version the in that U.S, at 188 n.l ( 2d ed. 1906», sentence after the word " Thus, a and one footnote with a case id. page cite to 5 How. by a citator using the 1870 at 189 n.I), neither of which appears in the Little, Brown version would cite the word Brown version. I suspect that the notes "before" on page 191; a citator in the Brown version were added by the 1906 Banks version would cite that Justice Curtis in his as annotator of word as on page 192. his set and those in the Banks ver­ Yet another kind of minor variation is in his capacity as that some versions print the dispositive lan­ annotator of the second edition of 5 Howard. 9 guage of the Court's decision in italics, while The different versions reflect minor vari­ other versions use roman type. Compare, e.g., for footnotes. For exam­ 5 U.S. (I Cranch) at 180 (1803) footnote to the report of 2 U,S. (2 Dall.) 409, 410 with Marbury, 5 U.S. (J at 180 (1803) (Banks, 3d ed. 1903) of three circuit rule must be discharged. courts on each of which different Justices of Some versions differ significantly with the Court sat,IO is signaled by ''1'' in respect to the presentations of counsel and the 1855 Brown version, by "(a)" in the other relevant materials. The Little, Brown 1906 Banks and "t" in the version the Curtis compilations) the Aurora Office in Philadelphia

the names of counsel. while the in 1798. J I The Hart and Wechsler treatise re- Banks versions provide summaries of that this footnote was "added the re­ counsel's arguments and sometimes lower . Richard H. Fallon et aI., Hart and court opinions. For example, the opinion in In Wechsler's The Federal Courts and The re 46 U.S. (5 How.) 176 (l Federal 100 ed. 1996). tie, Brown, 5th ed. 1870) is preceded only by for the petitioner. III. Which Versions Are Authoritative? ney-general,) contra." Id. at 348 (punctuation and accent in original). However, the report of Citators aware of the variations among pub­ Metz.ger in the Banks version contains Coxe's lished versions of the early Supreme Court 6 JOURNAL OF SUPREME COURT HISTORY

Libraries, including the Supreme Court Library (pictured), tend to assemble sets of United States Reports by acquiring partial sets from various sources and then filling in the missing volumes by ordering reprints from William S. Hein & Co., Inc., in Buffalo, NY, which provides reprints of first editions on acid-resistant paper. opinions may wonder which version should be printing of a first edition, and of the first and regarded as authoritative---or at least most au­ subsequent printings of each subsequent edi­ thoritative. I think most students of the subject tion, together with the author of the notes would regard as the most authoritative the first when prepared by someone other than the offi­ editions of the "nominate" or "nominative" re­ cial reporterJ4 ports, i.e., those of Dallas, Cranch, Wheaton, Locating a first edition of a nominate re­ Peters, Howard, Black, and Wallace. 12 When port might not be an easy task. A complete set current Supreme Court opinions cite to text in exists in the office of the Supreme Court Re­ opinions in the nominate reports, the text is pOlter, 15 in the Faculty Library of the Harvard rendered as it appears in these first editions. 13 Law School,16 and at the offices of William S. Ascertaining whether a published version of Hein & Co., Inc., Buffalo, NY. The Hein the nominate reports is a first or subsequent Company publishes reprints of the first edi­ edition can best be accomplished by compar­ tions on acid-resistant paper. Although a li­ ing the details on the title page of the volume brary could obtain from the Hein Company a with the extraordinarily helpful "Bibliography full set of the first editions, it is unlikely that of the Early Reports" contained in Morris L. many have done so. Libraries, including the Cohen & Sharon Hamby O'Connor, A Guide Supreme Court Library, tend to assemble sets to the Early Reports of the Supreme Court of United States Reports by building upon of the United States 115-217 (1955). The partial sets acquired from various sources and Bibliography sets out for each volume of the then filling in the missing volumes, either nominate reports the publisher and publication from other fragmented sets or by ordering re­ date of the first edition, of each subsequent prints of selected volumes from Hein. Of the PUBLISHERS' VERSIONS OF EARLY SUPREME COURT OPINIONS 7 seventy-one sets of the United States Re­ "'Note: The writer expresses his gratitude to ports in the chambers of the Ju stices of the Morris L. Cohen, Shelley L. Dowling, Maeva Supreme Court and elsewhere in the Supreme Marcus, Diane Simpson, and Frank D. Wag ­ Court building, only the set maintained by the ner for their extremely helpful advice ill the Reporter is a complete set of first editions. 17 A preparation of this article. set of Reports in the chambers of a judge, the office of a lawyer or law professor, or the li­ brary of a law school or a bar association is al­ most certainly an amalgamation of volumes ENDNOTES from varioLi s editions and publishers. ISee, e.g., Maeva Marcus, ''The Supreme Court: The Fi rst Even check ing a first edition is not a fool­ Ten Years," in Robert S. Peck and Ral ph S. Poll oc k, The proof method of ascertaining the text as ren­ Blessings of Liberty: Bicentennial Lectures at the Na­ dered by the early reporters, because on at tional Archives 70-73 (ABA 1988); 5 The Documen­ leas t one occasion a printing error was noticed tary History of the Supreme Court of the United in a first edition. When the current Supreme States, 1789-1800 164-86, 193-2 14 (Maeva Marcus ed .. Court Reporter was preparing a ceremonial 1994). Di screpancies occurred freq uen tl y in Dallas' re­ pon s of the earli est opin ions, as the practice of supplyin g presentation of Marbury v. Madison as re­ the Report er with texts of the opi ni ons did not become ported in the first edition of I Cranch, he no­ regulari led until Cranch became the Report er. See Wil­ ticed th at, on page 138, line 8 ended " ... Mr. lia m Cranch, "Preface to the First Edi tio n," in 5 U.S . (I Adam s, the late presi-" and line 9 began "of Cranch) iv (Banks, 3d ed. 1903); Craig Joyce, "The Rise the United States, .. . " The sy ll ab le "dent" of the Supreme Court Reporter: An In sti tuti onal Perspec­ was mi ss ing. Checking a later edition of I ti ve on Marshall Court Ascendancy," 83 Mich. L. Rev. 1291 , 1298 ( 1985) Cranch, he noticed that the omission had been 2Benjamin R. Curti s, "Preface" to 1-7 U.S. ( 1-4 Dall .• corrected. I S 1-3 Cranch ) 3-4 (Littl e. Brown, 1st ed. 1855). JThe l:urre nt conve nti on of citing th e early reports as "_ U.S. (_ [Reporter' s name])" began with the ninth edi tion Conclusion of The Bluebook, A Uniform System of Citation (195 4). see Gera ld T. Dunne, "Proprietor-Sometimes My advice to citators of opinions in the nomi ­ Predators: Earl y Court Report ers," ill 1976 Yearbook of nate reports is to cite to a first edition if one the Supreme Court Historical Society 7 .1 , but over di stin­ can be loca ted , and-in the usual circLlm­ gui shed objecti on, see Letter from Ju sti ce Felix Frank­ stance in which one cannot be located- to furter to Th e Harvard Law Review, reprinted in "With the add, after the customary citation form, a par­ Editors," 69 Ham L. Rev. v ( 1955). enthetical that includes the publisher, the ed i­ 40n the litl e page of th e 1870 Lillie, Brown version, the co mpany name is rendered "Lillie, Brown, and Com­ tion, and the publication date. Legal histori ans pany ." Th e company name is punctuated difl'erently on would probably prefer that th e added paren­ the titl e page of diffe rent vo lumes of the Lillie, Brown se­ thetical also include the name of the annota­ ri es annotated by Justice Curtis. In this art icle, J ha ve re­ tor, but lega l publishers (and readers) would ferred to the publisher as "Lillie, Brow n" or " Little, probably prefer limiting the parenthetical to Brown and Company" and, in citing opinions in a vo lume of tha t series, used the punctuation appeari ng on the title just the necessary identifying inform ation (the page of the cited vo lu me (om itting "and Company"). format I have used in thi s article). Thus, the 51 am gratefu l to Prof. Morris L. Cohen of the Yale Law next time I have occasion to in voke Chief Jus­ School for rurn ishing me wi th a copy of the Lillie, Brown tice MarshalL' s statement, "It is emphaticall y adverti sio g circul ar. the prov ince and duty of the judicial depart­ 6See Morri s L. Cohen and Sharon Hamby O 'Connor, A ment to say what the law is," my citation , Guide to the Early Reports of the Supreme Court of the United States 230 (1995). The 22 vo lumes of the using the volume in my chambers, will be: sixth edition are some times bound in I I vo lumes. See id. Marbury v. Madison , 5 U.S. (I Cranch) 137 , The Lillie, Brown adverti sing circula r states that the 177 (1803) (Littl e, Brown, Isted. 1855). then-contempl ated 18 volumes wou ld include four vo l­ 8 JOURNAL OF SUPREME COURT HISTORY

umes of the cases reponed by Dallas. However, the 1855 advisement Randolph's subsequent argument that he Little, Brown version of volume I of the Curtis set, could proceed directly on behalf of Hayburn, and the fact though labeled on the spine "1-7 Dallas 1-4 Cranch that the Court never decided the motion because of subse­ 1-3," contains none of the cases in I Dallas, all of which quently enacted legislation. There is no opinion of the are cases decided by courts of Pennsy lvania. See I U.S. (I Court in T-Iayburn's Case. Dal.) passim (1754-89) (Banks, 4th ed. 1905). liThe 1798 Aurora version uses old style type, with so me 7In citing Ferreira in Lo Duca, r should have retained the instances of " s" appearing as "f." comma after "Little" appearing on the title page of the 12Beginning with the opinions of the 1875 Term, Su ­ cited volume and omitted "& Co." preme Court opinions began to bc printed under the aus­ ~Sometimes a version of an early opinion contains a mix­ pices of the United States Government, which contracted ture of variations. For example, the version of page 155 of with commercial publishers. See Morris L. Cohen & Marbury in volume 2 of the Lawyers' Edition of Supreme Sharon Hamby O'Connor, A Guide to the Early Re­ Court Reports, published by the Lawyers Co-operative ports of the Supreme Court of the United States 3 Publishing Co. in 1917, contains three of the variations (1995). Volume 91 of the United States Reports was noted above that appear in the 1903 Banks version and printed in 1876 by Little, Brown. The name of the Rc­ three that appear in the 1855 Little, Brown version. porter, Otto, appears on the spine of this volume, and of 9'fhe Office of the Supreme Court Reporter has con­ Little, Brown volumes through 107 U.S. Starting in 1921 , firmed that the footnotes in the 1906 Banks version of the Government Printing Office began printing United Metzger do not appear in the first edition of 5 Howard, States Reports, starting with volume 257. See id. at3 nA. published in 1847. IJTeJephone interview with Frank D. Wagner, Reporter IlYfhese "opinions" were letters se nt by the members of of Decisions, Supreme Court of the United States (Mar. the three circuit courts to President Wa shington, two stat­ 23, 1999). ing and one implying that the Invalid Pensions Act of l4"Although the early reports were issued with Court ap­ 1792 was unconstitutional. In only one or the three cases proval and there is evidence that William Cranch, the sec­ was a claimant (William Hayburn) before the circuit ond reporter, had an appointment from the Supreme court . T-Iayburn's Case in the Supreme Court was a mo­ Court as its reporter, that position did not become official tion by Edmund Randolph, Attorney General of the until 1817 when Congress authoril..e d the Court to appoint United States, asking for issuance of a writ of mandamus a reporter, with an annual salary." Cohen & O'Connor, at ordering the Circuit Court for the District of Pennsylvania 2. to act on Hayburn' s petition. Considering only the nar­ 15Telephone interview with Frank D. Wagner, Reporter row issue of whether the Attorney General could proceed of Decisions, Supreme Court of the United States (Mar. ex officio without specific authorization from the Presi­ 23, 1999). dent, the Supreme Court was equally divided and denied 16See Cohen & O'Connor, at 115 . the ex officio motion for mandam us. See Maeva Marcus, 17Telephone interview with Diane Simpson, Ass!. Librar­ "Haybum 's Case: A Misinterpretation of Precedent," ian for Technical Services and Special Collections, Su­ 1988 Wis. L. Rev. 527,529-38 (1988). The report of preme Court of the United States (Mar. 23, 1999). {-/aybum's Case in 2 U.S. (2 Dall.) 409, 410 (1792) (Lit­ lijTelephone interview with Frank D. Wagner. Reporter tle, Brown, 1st ed. 1855), briefly recounts the denial of of Deci sions, Supreme Court of the United States (Mar. the mandamus petition. the Court's decision to hold under 23 , 1999). The Role of the Supreme Court Reporter in History

FRANK D. WAGNER

Present Duties of the Reporter

The Reporter of Decisions is one of the four statutory officers of the Supreme Court. The others are the Clerk of the Court- presently, General Bill Suter-the Marshal of the Court, Dale Bosley, and the Librarian, Shel ley Dowling. 1 We're called "statutory" officers because our jobs are created by law; our job descriptions are actually included in the United States Code. You can find the Reporter's job described at 28 U.S. C. §673. The Administrative Assistant to the Chief Justice, Sally Rider, is also a statutory officer, but she is appointed by and works pri­ marily for the Chief Justice to assist in the management of the Court facility and the pelfor­ mance of the Chief's nonjudicial responsibilities.2 There have been relatively few Reporters whom some of you might be familiar. Rather, in the Court's hi story, and many of them have the Reporter and hi s staff have been described stayed for long periods of time. I am the by the thilteenth Reporter, Henry Putzel, Jr., fifteenth Reporter since 1789. To give you as "double revolving peripatetic nit­ some frame of reference on that, there have picker[s)."4 We carefully examine each draft been sixteen Chief Justices during the same of each opinion to assure the accuracy of its period.J quotations and citations and-to the extent we As the Reporter of Decisions, my pri­ can-its facts. We also check for any typo­ mary job is to publish the Court's opinions in graphical errors, misspellings, grammatical the Court's official publication, the United mistakes, and deviations from the Supreme States Reports. I am also an editor of sorts, Court's complicated sty le rules.5 but not the type of full-service editor with We now do this for each case before it is 10 JOURNAL OF SUPREME COURT HISTORY released: that is, one attorney and one paralegal in the Reporter' s Office read each and every word of every draft of every opin­ ion. That was not always the case. Prior to Oc­ tober Term 1998, there were only two attor­ neys in the office, and we rarely had time to read cases for their technical editorial content prior to their issuance. Rather, most pre­ release editorial work was accomplished by the paralegals, and full editing for style and content by one of the office attorneys had to await publication of the case in the prelimi­ nary print of the United States Reports. What prerelease editing we attorneys did was primarily on the majority opinion as a byprod­ uct of the headnoting process. Need less to say, this led to some un­ avoidable but annoying inconsistencies in the text of opinions. For example, in 1997, a foot­ Author Frank Wagner is the current Reporter of Deci­ sions and the fifteenth to hold that title since 1789. note in a Sixth Circuit panel's slip opinion The Reporter's primary job is to publish the Court's pointed out inconsistencies in the spelling and opinions in its official pUblication, United States punctuation of the phrase "attorney['s] fees" Reports. in four of this Court's recent slip opinions. The Sixth Circuit opined, therefore, that this had the ability to fully read opinions before Court was " hopelessly divided" as to the their release. phrase's proper form. I wrote to Judge Danny This and similar occurrences prompted J. Boggs, the author of the opinion, to point me to ask the Chief Justice, the Conference of out that the "Supreme Court Style Manual" Justices, and Congress for an additional attor­ expressly advises opinion writers to use the ney on my staff. Our new Assistant Reporter phrase "a-t-t-o-r-n-e-y-'-s fees." I also told assumed her duties at the beginning of the him that a review of recent United States Re­ 1998 Term. I am happy to say that, at the con­ ports preliminary prints and bound volumes clusion of the 1999 Term, I felt that for the would reveal th at the style manual's advice is first time ever we had been able to do every­ heeded almost universally6 in the final ver­ thing possible to assure that the slip opinions sions of opinions. I added that the discrepan­ were as editorially pure as they could be. cies in question resulted largely from the fact As I have just indicated, a lawyer and a that, at the initial slip opinion stage, the Court paralegal also reread each case again, in full, utilized its limited editorial resources primar­ prior to publication in the preliminary print of ily to assure the accuracy of the facts, quota­ the United States Reports, and then again a tions, and citations contained in its opinions, year later when two or three prel iminary and that it was not until preparation of the of­ prints are combined into a bound volume. ficial preliminary print that we turned our full Each and every change that the Reporter's Of­ attention to stylistic consistency. Judge fice suggests, no matter how trivial, is sent to Boggs graciously revised his footnote to re­ Chambers for the Justices' approval. They, flect the true state of affairs,? but I could not not we, are the opinions' authors, and they are help but think that this whole unfortunate sit­ entitled to have their opinions published ex­ uation could have been avoided if only we actly as they wi sh. THE ROLE OF THE SUPREME COURT REPORTER IN HISTORY 11

tionaries." As Chief Justice Rehnquist has de­ clared: "The Reporter's tasks ... include the editing of opinions in the sense of attempting to establish consistency as to such matters as the forms of citations, preferred spelling of words, punctuation, and grammar~not an en­ viable task when dealing with nine separate chambers." lo Thus, whenever I am asked whether the Reporter's Office "corrects" substantive er­ rors in opinions, the answer is always no. I think my two lawyers and I are pretty good at­ torneys, but the Justices themselves are the best in the world. In those handful of in­ stances~1 repeat, handful ~ in which sub­ stantive corrections have been made to opin­ ions during my nearly fourteen years on the job, the impetus to do so has almost always The thirteenth Reporter, Henry Putzel, Jr., come from Chambers. (1964-1979), described his staff as "double revolving peripatetic nitpicker[s]." While we are in frequently-asked-ques­ tions mode, there's one such question that I will happily duck. It often happens, usually at Again, the Reporter's Office generally cocktail parties, that someone sid les up to me concentrates on the technical details, not the and asks, conspiratorially, "Just between you big picture. When my predecessor, Henry C. and me, which Justice is the best writer?" I Lind, retired, the Chief Justice praised him hi ghly as having been able to secure the ap­ proval of a majority of the Court to spell "marijuana" with a "j" rather than an "h" .8 Another example of what we do can be found framed on the Rep0l1er's Office wall. In the slip version of the opinion for the Court in a case called Wear v. Kansas,9 Justice Oliver Wendell Holmes used the phrase ". the principle river of the State is navigable at the capitol of the State. ... " In doing so, Holmes used the wrong versions of two key words, "p-r-i-n-c-i-p-l-e" when he meant "p-r-i-n-c-i-p-a-l" and "c-a-p-i-t-o-l" when he meant "c-a-p-i-t-a-l." Reporter Ernest Knaebel caught the mistake and brought it to Justice Holmes' attention. Framed on my wall is the Justice's response. He said: '''principle' of course was a printer's error that I blush to have overlooked. 'Capitol' was deliberate ig­ When Henry C. Lind retired in 1987, Chief Justice Rehnquist praised him highly for having secured the norance. ... I do a double blush. This is one of approval of a majority of the Court to spell "mari­ the few occasions on which I defer to the di c- juana" with a "j" rather than an "h". 12 JOURNAL OF SUPREME COURT HISTORY will tell you now what I always tell them: In addition to doing the editorial work there is very little from which to choose. They necessary to prepare opinions for publication, are all exceptionally experienced and talented the Deputy Reporter, Assistant Reporter, and legal writers, and each of them is equally I also write the syllabuses that appcar at the wonderful in his or her own unique and fabu­ beginning of each case. To answer another lous way! frequently asked question: yes, each syllabus I have one last word about the editing of is carefully checked and approved by the opinions. In this modern computer age, editing Chambers whose writings it reflects. Tech­ can sometimes be prospective in effect, not just nically, the syllabus is the work of the Re­ retroactive. I am referring to what we in the Re­ pOlter, not the Court, II which led Mr. Putzcl porter's Office call our "Cites Retrieval to refer to syllabus input from Chambers as Macro." For many years, Chambers personnel "suggestions."12I would suggest to you, how­ engaged in writing opinions and Reporter's ever, that a Reporter unwilling to accept Office employees engaged in checking opin­ Chambers "suggestions" would not be a Re­ ions spent a great deal of time typing, proof­ porter for very much longer. And indeed, Mr. reading, editing, and correcting citations to this Putzel conceded that fact, declaring that "[0Jf Court's earlier cases in order to eliminate er­ course, the Reporter is going to abide by rors, achieve consistency, and comply with the th[ose] suggestions."13 intricate case-naming rules set forth in the "Su­ The syllabus approval process actually preme Court Style Manual." In 1995, a team of yields a certain amount of security and com­ employees led by Deputy Reporter Christine fort for my assistants and me. Since I have Fallon completed a project that had been un­ been the Reporter, I have twice gotten letters derway since the 1970s regime of Reporter from law professors claiming that a syllabus Henry Putzel. Specifically, they finished our had misinterpreted the case it summarized. In "Cites Directory," which contains volume-by­ both instances, I was able to answer that I volume li sts of recommended citation forms stood by my syllabus, since it had already for each and every case decided by signed or been approved by Chambers, but offered to per curiam opinion and reported in the United run it by the Justice again, just in case. On States Reports. We estimate that there are each occasion, the syllabus came back from more than 16,000 citations included in our di­ Chambers reapproved without change. rectory. The question then became how best to Of course, accuracy is a must for syJla­ make that information available to Chambers buses, but comprehensiveness is not. A sylla­ and our cite checkers. We found the solution in bus cannot reflect every point in the case it 1996, when a Reporter' s Office intern, Derrick covers; otherwise, it would be almost as long Lindery, who was also a law student and an as the case itself. Mr. Putzel stated it thi s way: amateur computer whiz, came up with our "Cites Retrieval Macro." The macro allows an [W]e try to make them as brief as we opinion writer to automatically import a rec­ can and the question is always one of ommended citation form directly from the judgment: What point is at the nub of Cites Directory lists into an opinion-in-process the case, and you would have to as­ with a few simple keystrokes, without retyping sume certain things that are the case name, and without the possibility of not-they may be quite impor­ committing a typographical or other error (un­ tant-but they are not what the case less, of course, we input it wrong in the first is primarily about. For example, a place). Obviously, thi s has greatly simplified Justice might start off an opinion by the process of using and proofreading citations referring to the fact that on a motion to this Court's prior opinions. to dismiss the complaint the facts are THE ROLE OF THE SUPREME COURT REPORTER IN HISTORY 13

taken as stated. Well, if that is many fewer cases I am not sure my mentioned, it would not answer would be better than or different from be head noted, although it could be­ anyone else's, or that it would even be correct. come part of the headnote if it were I suppose I could about s the central or focal part of the case. 14 1988 repeal of to this Court,17 or about the other supposed reasons the primary factor in the for the change examined by the pun­ and comprehensiveness of a dits. When it comes down to it, though, it bus is the preference of the Justice who wrote is not my question to try to answer. [ have no the opinion. On the involvement in that of the Court's pro­ short cess, and any on the matter on my part would be pure When asked recently the Court has taken far fewer labuses and will cases for review in recent years, Justice Justice on the other O'Connor are called, but has preferred fuller summaries of her as on most occa­ cases. She believes that the is fre­ sions, my best course seems to be to rely on quently the only information on a case that Justice O'Connor as authority. busy lawyers and judges read. IS of the reasons for taking As I have indicated, my staff includes fewer cases, r believe that the drop-off has had two other lawyers, a positive effect on the overall quality of the L. Fallon and Assistant Donna opinions. Back in the bad old 160-case­ Vierra. We employ four editors: per-year there were sometimes Ronningen, Dan Herve "Bo" issued, near the end of the '-''''va.;;,,,,, and Janet The staff also in- that were never submitted to the Reporter's eludes two printing Publications Office for editorial work. There simply was Officer Lloyd Hysan and his Mi­ no time to do That is rarely the case today. chael Luck; and two clerical We now read virtually every opinion, in each retary Toni Singleton and of its sometimes many draft versions. More Verdery Knights. Many of my excellent staff importantly, the nine Chambers now have are with us here tonight. more time to devote to reading each others' We publish the Court's first as to their release. I am not bench and and later in that mistakes do not still occasionally the and bound volumes of in do. I can tell the United States .... fl~~~~~ For each Court you that my office now receives many fewer we issue between three and five letters from members of the bar and the 1,200-page volumes, on the num­ out mistakes. Moreover, ber of opinions released the year. In Deputy Solicitor General Lawrence G. the past few years, the Court has heard be­ Wallace has told me on several occasions in tween 75 and 100 per Term and recent years that the Sol icitor General's staff has issued a number of opinions. has many fewer errors in the At that rate, we have been publishing only once did. three volumes for the last few Terms. That is now, shortly after the beginning of a far cry from my first Term 1986, October Term 2000, we are on new when we issued five volumes 161 that will be published in volume 531 opinions. 16 U.S. This will be the 531'( volume issued I am often asked why the Court is taking since 1789. Our next preliminary print will be 14 JOURNAL OF SUPREME COURT HISTORY

529 U.S ., Part 1, covering cases issued scripts for the current Term, the Court's Rules, through March 29, 2000. The gap between an­ bar admission forms and instructions, visitors' nouncement of a case from the bench and its guides and pamphlets, case-handling guides, issuance in the official Reports has thus special notices, press releases and informa­ shrunk from a high of thirty-four months in tional items, and some really dynamite photo­ December 1994 to the present eight months. graphs from the Court's collection. Now that The gap resulted primarily from the introduc­ the website's complete, I am sort of retired tions of new technologies in 1982, when the from the Internet bu siness. However, I still get Court changed from hot lead to computerized to help out occasionally, since Lloyd Hysan printing, and again in 1992, when we has been named the Court's "webmaster." switched to a modern word processing sys­ That is about all I can think to tell you tem. Ironically, those changes were intended about the Reporter's job as it currently exists. to simplify the opinion-preparation process. All in all, I guess you could describe the Re­ Hopefully, those problems are behind us now. porter' s present duties as those of a legal edi­ For the past few years, the Court's Publica­ tor. That is what I did before I came to the tions Unit in the Office of Data Systems and Court: like Reporter Henry Lind before me, I my office have been engaged in a catch-up worked for the Lawyer's Co-operative Pub­ project. If everyone stays healthy and no sys­ lishing Company. One of the jobs I held was tems crash-knock on wood!-we should be managing editor of that company's version of caught up sometime this Term or next. In any the Court's opinions, the Supreme Court Re­ event, the opinions gap does not seem nearly ports, Lawyers' Edition. My job is an impor­ so critical as it once was because each and tant one in its way,1 9 and it has provided me every opinion issued by the Court is now with wonderful opportunities to meet and in­ posted on our new official website, www. teract with some of the best and brightest peo­ supremecourtus.gov, within hours of its an­ ple of our time. nouncement from the bench. Opinions are re­ moved from the website only after their publi­ The Reporter Through History cation in a preliminary print of the United States Reports. The Court also transmits all Of course, the Reporter has not always been of its opinions electronically through our elec­ the same sort of bureaucratic nobody as is tronic-dissemination project, "Project Her­ your humble narrator. The early Reporters mes," to legal publishers, news organizations, were independent businessmen, and some of and law schools across the country. Many of them achieved fame and di stinction apart those organizations also reprint the opinions from their work as the publishers of the or post them on their own websites. Court's rulings. 20 For example, Benjamin C. I had the good fortune to supervise, under Howard, the fifth Reporter, served four terms the direction of the Chief Justice and the in Congress,21 while Jeremiah S. Black, the Court's Automation Policy Committee, the sixth Reporter, was appointed U.S. Attorney creation of the Court's new website. Pretty ex­ General and Secretary of State. 22 Alexander citing stuff for a fifty-five year old! The Dallas, the very first Reporter, was appointed website debuted on the Internet on April 17, Madison's Secretary of the Treasury 23 and 2000. It now includes the Comt's most recent Secretary of War24 after he stopped reporting. slip opinions, the full text of bound volumes Incidentally, Dallas' first volume, which is 502 through 523 U.S., the Court's Automated universally considered the first book in the Docket, its journal for the 1993 Term through United States Reports, consists entirely of the present, its most recent orders, its argument cases from Pennsylvania courts and includes calendar and schedules, oral argument tran­ not a single ruling by the U.S. Supreme THE ROLE OF THE SUPREME COURT REPORTER IN HISTORY 15

Court.25 Hi s next three volumes did contain Wheaton and th e earlier Reporters.33 Wheaton Supreme Court cases, but al so included deci­ sued for copyright infringement,34 and the sions from Pennsylvania and other states. case made it all the way to this Court. Peters The second Reporter, William Cranch, got to report his own vi ctory because the was the long-time Chief Judge of the District Court ruled that no Reporter of its decisions of Columbia Circuit Court26; he was also the has or can ever have any copyright in the writ­ nephew of President John Adams.27 Like Dal­ ten opinions delivered by the COUlt.35 las, Cranch was a private publisher and a vol­ As I said, I once thought that the removal unteer. The third Reporter, Henry Wheaton, of the Reporters' names from the books was was the first person actually selected by the delayed payback for the Reporters' chutzpah Court to report its opinions.28 Beginning in in trying to claim copyright in the Court's 1816, Wheaton and hi s successors were ap­ work: " You guys cannot claim ownership of pointed public employees. Wheaton was the our writings, and , by the way, you cannot first to receive a small government salary, name our books after yoursel ves anymore." $1 ,000 ,2~ although he also continued to pay Of course, that was not the case. Rather, the for and sell his Reports, keeping any profits) O Judiciary appropriation of 1874 allotted After he stopped reporting, Wheaton became a $25,000 to pay for the printing of the official distinguished scholar3l and diplomat.32 Reports36 After that, beginning with volume The names of these early Reporters are 91, the legend "U nited States Reports" has very important because the Court's Reports appeared on the spines of all the books. The were named for them. This is true of the first first nonnominative Reporter, William Otto, ninety volumes of the United States Reports. had hi s name in a band below that official leg­ For example, Wheaton's first volume, pub­ end, but after Otto no Reporter's name has lished in 18 I 6, is correctly cited as "One ever again appeared on the spines of the Wheaton," even though it is al so the four­ United States Reports. Of course, we do still teenth volume in the United States Reports get to have our names on the title pages of the series. Such " nominative" Reports are no volumes. longer publ ished here at the Court. Although Another difference between the early Re­ volume 531 U.S ., the one on which we are ports and those published today is that the presently working, is also theoretically 53 early volumes do not necessarily contain the Wagner-that is, the 53rd volume to be pro­ actual words of the Court. Today, the text that duced during my tenure-no one knows that will be printed in the United States Reports is except me, my wife, and now you. This is be­ actually keystroked in Chambers and then cause the Court stopped using the Reporter's carefully preserved by the Court's Publica­ name on its case books in 1882. tions Unit and reproduced in the official Re­ For years, I thought the reason for this ports. In contrast, in th e early years there was change stemmed from the suit between the no publication apart from that of the Re­ third Reporter, Wheaton, and the fourth Re­ porters. Opinions were delivered orally from porter, Richard Peters, Jr. As I indicated the bench, and it was up to the Reporter to above, the early Reporters were entrepreneurs come to Court regularly and to take careful who made most of their incomes compiling, notes)? If the Reporter was lucky and in the printing, and selling the rulings of thi s Court. good graces of a particular Justice, he might be Wheaton served as Reporter from 1816 able to borrow the Justice's notes,38 but the ac­ through 1827, producing twelve volumes of tual text published seems often to have been the Court's Reports. Between 1830 and 1834, largel y the Reporter's idea of what the Court however, Peters attempted to sell cheap, con­ had said 39 The results were mixed. Dallas and densed versions of cases already published by Cranch were both criticized for inaccuracies in 16 JOURNAL OF SUPREME COURT HISTORY

Benjamin C. Howard (1843-1861), the fifth Jeremiah S. Black (1861-1862), the sixth Reporter, Reporter, served four terms in Congress after his stint was later appointed U.S. Attorney General and then as Reporter. Secretary of State. their work,40 as well as for the long delays that in the Reports. They certainly con­ occurred in publishing cases.41 For example, tribute very much to explain the even though Dallas' fourth volume was pub­ points really decided by the Court. If lished in 1807, it reports state cases decided as thi s cannot be done in one volume, [ early as 178842 and reports no U.S. Supreme should think it advisable to give us Court cases decided after the Court's 1800 twO.44 Term.43 The present-day eight-month delay Summarizing the parties' arguments sur­ between opinion announcement and publica­ vived well into the twentieth century 4 5 The tion seems to pale by comparison. practice tapered off and finally ceased during Another difference between the modern the tenure of Mr. Knaebel, in 1941 .46 Office and the original Reports is that the early vol­ records do not reveal why this occurred. Nei­ umes often summarized the arguments of ther Henry Putzel nor Henry Lind has any counsel in great detail. Again, this practice re­ memory of the matter, and even the Court's flected, at least, that the Reporter was often in wonderful research librarians have been un­ the Courtroom taking careful notes. And-at able to come up with a reason why the practice least initially-the Court considered the pub­ was di scontinued. I can only speculate that, as lication of arguments to be very important. more and more resources became available to When, in 1830, Reporter Richard Peters re­ attorneys over the years, perusal of the sum­ quested the Court's permission to cease pub­ maries of colleagues' arguments became a lishing the arguments in order to avoid having much less attractive and relatively unfruitful to issue a second volume to cover that Term's way of doing legal research. cases, Chief Justice Marshall responded: Perhaps because of the early Reporters' I believe we [that is, the Justices] all habit of haunting the Courtroom to take care­ think that the arguments at the bar ful notes on opinions and arguments, but more ought, at least in substance, to appear likely because of the unfortunate similarity of THE ROLE OF THE SUPREME COURT REPORTER IN HISTORY 17

Any discussion of the history of Supreme Court Reporters would, of course, be deficient if it did not include a few words on the history of the syllabus. The very first stab at some­ thing like a syllabus appears as the very first item in those pages of Dallas' second volume that are devoted to the proceedings of this Court.49 In an item entitled "Supreme Court of the United States: February Term 1790," Dal­ las noted that the first John Jay Court met in New York City, that the Justices' commis­ sions were read, and that they were qualified according to law. Dallas then named the Jus­ tices, listed the dates of their commissions, and reprinted the rules established by the Court. Most of the early syllabuses followed this pattern: an enumeration of separate but After he stopped reporting, Alexander Dallas, the sometimes related points. Today, we would Court's first Reporter (1790-1800), was appointed Secretary of the Treasury by President James Mad­ call such a device headnotes rather than a ison. He went on to become Secretary of War. true syllabus. A good example of such writ­ ing can be found in William Cranch's mar­ ginal notation for Marbury v. Madison. 5o the two positions' names, early Reporters This has been called "the most significant were often mistaken for court reporters. WaI­ ter Wyatt, the twelfth Reporter, finally grew so frustrated with this issue of mistaken iden­ tity that, on January 21, 1953, he wrote Chief Justice Vinson as follows:

In order to avoid confusion and some embarrassment it is respectfully re­ quested that in the United States Re­ ports, the Congressional Directory and other official publications, I be permitted to list my title as Reporter of Decisions instead of merely as Re­ porter. From time to time I am plagued by letters and personal calls from people who think that I am a stenographic court reporter or who desire either stenographic employ­ ment on my staff or to obtain tran­ scripts of oral arguments.47 like Dallas, Wiltiam Cranch, the second Reporter Thereafter, the job has always been listed not (1801-1815), was a private publisher who took on the job as a public service. Cranch was the longtime as "Reporter," but as "Reporter of Deci­ Chief Judge of the District of Columbia Circuit Court sions."48 and a nephew of President John Adams. 18 JOURNAL OF SUPREME COURT HISTORY

dards of scholarship. The precision of Petcrs' work was quickly called into question 5 6 Latcr, the editors of the American Law Review said of John W. Wallace, the seventh Re­ porter:

We could fill pages with specimens of bad English, bad taste, and inaccu­ rate statement [in Wallace's Re­ ports]. ... [H]is elaborate and bom­ bastic stalements of fact prove that he radically misconceives his office . . . . [NJolhing less will suffice, than that Mr. Wallace should cease to be Reporter. If this cannot be, then we demand in behalf of the profession, an entire change in hi s theory and practice of reporting. He must be

Henry Wheaton (1816-1827) was the first Reporter more brief, more accurate, and more hired by the Supreme Court to record its opinions. He modestY received a small government salary of $1,000, but he also continued to pay for and sell his Reports, Occasionally, inaccuracies in sy ll abuses keeping any profits. Wheaton went on to become minister to Denmark. synopsis by a Reporter of Decisions in United States Reports."51 It is, in fact, ex­ tremely well written and concise, consistin g of onl y two narrow columns that summarize the Chief Justice's twenty-seven-page opin­ ion. However, Cranch's writing is simply a bare-bones li sting of black-letter points of law, with no attempt to recount the facts of the case or the reasoning of the opinion. The third Reporter, Henry Wheaton, extended the utility of this device significantly . Aided oc­ casionally (but anonymously52) by hi s friend and mentor, Justice Joseph Story, Wheaton included in hi s Reports annotations elucidat­ ing particular points in opinions or exploring entire areas of developing law. 53 However, Wheaton is regarded as the ablest of the early Reporters5 4 His successor, The fourth Reporter, Richard Peters, Jr. (1828-1843), won his 1834 suit in the Supreme Peters, immediately abandoned Wheaton's in­ Court permitting him to sell condensed versions of clusion of scholarly notes in hi s volumes,55 cases recorded by his predecessors. The Court ruled that no Reporter of decisions has copyright in the and subsequent Reporters were not always written opinions delivered by the Court, which are in able to measure up to Wheaton's high stan­ the public domain. THE ROLE OF THE SUPREME COURT REPORTER IN HISTORY 19 have led to real problems. For example, in the celebrated case of United States v. Detroit Timber & Lumber Co.,58 the federal govern­ ment attempted to support its case by relying on a point made in a syllabus of an earlier de­ cision, Hawley v. Diller. 59 Writing for the Court in Detroit Timber, Justice David J. Brewer said that such reliance was misplaced:

. .. [T]he headnote is not the work of the Court, nor does it state its deci­ sion . ... It is simply the work of the Reporter, gives his understanding of the decision, and is prepared for the convenience of the profession. [F]inally[,] [this] headnote is a mi s­ interpretation of the scope of the [Hawley] decision6o

Although Justice Brewer thus criticized the The practice of summarizing the parties' arguments tapered off and finally ceased in 1941, during the work of ninth Reporter J. C. Bancroft Davis, tenure of Reporter Ernest Knaebel (1916-1944). No Charles Henry Butler, the tenth Reporter and one is sure why this happened. Davis' successor, did not hesitate to headnote the point in the Detroit Timber syllabus61 In­ statement that, to this day, appears at the top deed, that point has become the basis of a of every slip opinion syllabus:

... The syllabus constitutes no p311 of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.

The inclusion of that statement in all modern syllabuses has led Justice Ginsburg to declare that Detroit Timber is "the most frequently cited of all Supreme Court cases."62 Speaking of modern syllabuses, I should tell you what the original case note device has evolved into. Today, the syllabus is basically what a law school student would call a "case brief." Henry Putzel, my predecessor by two, declared that that structure has been in exis­ tence for a long time and conforms to a certain After William Otto (1875-1883), no Reporter's set of unwritten rules63 The first part of the name has appeared on the spines of the United States Reports, although their names do appear on syllabus sets forth the facts. Although in Mr. the title pages. Putzel's day the fact paragraph was always 20 JOURNAL OF SUPREME COURT HISTORY

never contemplated in Mr. Putlel's time: the recent phenomenon of "split-majority" cases in which the opinion of the Court appears par­ tially in one opinion and partially in an­ other70 The last portion of the modern syllabus is what we call the " lineup," which is simply the li sting of how the Justices voted in the case. The lineup did not appear in syllabuses until ] 970 .7 1 At that time, the Court had ac­ ceded to a request from the press to release syllabuses at the same time as the cases they summarized. Prior to that time, sy llabuses were included only at the preliminary print stage. According to Henry Putlel, th e idea was to provide the press with a road map through very complicated decisions,?2 In a recent phone conversation, Mr. Putlel told The Reporter's job title was expanded to Reporter of me th at lineups were added to syllabuses in Decisions after Walter Wyatt, the twelfth Reporter (1946-1963), lobbied Chief Justice Fred Vinson in that same spirit, to let the press and the pub­ 1953. He complained that he was plagued by letters lic know at a g lance how each of the Justices from people who thought he was a stenographic court had voted. reporter. Ironically, although lineups were created to aid the press, the media are sometimes the limited to one paragraph,64 in recent years we have expanded that to tw065 or even three66 paragraphs in cases in which the relevant facts are long and complicated. Following the facts in the syllabus comes the "held" line, under which the case's hold­ ing or holdings are set forth in paragraphs identifying the opinion pages on which the particular points can be found .67 In a case in which there was but one holding, Mr. Putzel limited any subdivisions to (a), (b), and (c) paragraphs. If there was more than one hold­ ing, Mr. Putzel would use arabic numerals for the points decided, and perhaps some lettered paragraphs under those for subholdings, but would not go below that in order "to keep the thing within bounds."68 In recent years, we have violated that rule in very complicated cases in order to provide the reader with smaller, simpler chunks of exposition on par­ 69 John W. Wallace (1863-1875), the seventh ticular subpoints. We have even had to de­ Reporter, has been criticized for his wordiness, poor vise a special syllabus form for something accuracy, and bombastic style . THE ROLE OF THE SUPREME COURT REPORTER IN HISTORY 21

In the celebrated case of United States v. Detroit Timber & Lumber Co., the federal government attempted to support its case by relying on a point made in a syllabus of an earlier decision, Hawley v. Diller. Writing for the Court in Detroit Timber, Justice David J. Brewer said that such reliance was misplaced, because the headnote of the earlier decision was not the work of the Court but the mistaken interpretation of J. C. Bancroft Davis, the ninth Reporter (1883-1902) (left). Charles Henry Butler (1902-1916) (right), Davis's successor, did not hesitate to headnote Brewer's point in the Detroit Timber syllabus, and the point is now routinely made at the top of every slip opinion syllabus. first to complain about very complex lineups. cllrring in the judgment, in Part II of I would suggest that it is not the lineups that which BRENNAN and STEVENS, JJ., are complex, but the cases they reflect. For joined, post, p. 623 . BRENNAN, J., example, here is the lineup in County of Alle­ filed an opinion concuo'ing in part gheny v. American Civil Liberties Union, and dissenting in part, in which Greater Pillsburgh Chapter73 : MARSHALL and STEVENS, JJ., joined, post, p. 637. STEVENS , J. , filed an BLACKMUN, J., announced the judg­ opinion concurring in part and dis­ ment of the Court and delivered the senting in part, in which BRENNAN opinion of the Court with respect to and MARSHALL, JJ., joined, post, p. Parts III-A, IV, and V, in which 646. KENNEDY, J., filed an opinion BRENNAN, MARSHALL, STEVENS, and conculTing in the judgment in part O'CONNOR, D., joined, an opinion and dissenting in part, in which with respect to Parts I and II, in REHNQUIST, C. J., and WHITE and which STEVENS and O'CONNOR, JJ., SCALIA, JJ., joined, post, p. 655. joined, an opinion with respect to Part III-B, in which STEVENS, J., How could I possibly have said it any clearer joined, an opinion with respect to than that, I ask you? Part VII, in which O'CONNOR, J., I hope this essay has given you some un­ joined, and an opinion with respect derstanding of this little-known but important to Part VI. O'CONNOR, J., filed an job that it is my pleasure to hold, and of its opinion concurring in part and coo­ place in the Court's history. 22 JOURNAL OF SUPREME COURT HISTORY

2lSee id. at 63. ENDNOTES 24See McGurn 89. 2SS Joyce, ''The Ri se of the Supreme Court Reporter: ISee McGurn, "The Court's Officers," 1979 S. Ct. His/. ee An In stitutional Perspecti ve on Marshall Court Ascen­ Soc. Yearbook 87 (hereinafter McGurn ). dancy," 83 Mich. L. Rev. 129 1, 1296 (1985) (hereinaft er 2See id. at 92-93. Joyce). lTh is number includes John Rutledge, who was nomi­ 26Joyce, " Wh ealOn v. Pelers: The Untold Story of the nated by George Was hin gton and served as Chicf Justi ce in 1795, but whose nomination was never confirmed by Early Reporters," 1985 S. Ct. Hisl. Soc. Yearbook 35, WhealOn) . the Senate. See Marcus, " Washington's Appointments to 4 1-42 (herei nafter Joyce on 21See id. at 4 I. the Supreme Court," 1999 S. Ct. Hisl. Soc. 1. 243, 2M See Dunne 64. 251-252. 4See Baier & Putzel, " A Report on the Reporter," 1980 29Joyce on Wh ealOn 56. S. Ct. Hisl. Soc. Yearbook 10, 12 (hereinafter Baier & 30See Dunne 64. Putzel). This article consists largely of the tex t of a televi­ 31See Joyee 1314. sion interview that Professor Paul R. Baier, of the Louisi­ 32See Dunne 64. ana State University Law Center, conducted with Mr. 3lSee Joyce on Whealon 6 I - 64. Putz.ei. 34See Joyce 1370-137 I. SSee "Retirements and Appointments,: 479 U.S. xx i lS Whealon v. Pelers. 8 Pet. 591. 668 ( 1834). ( 1987). J6See Dunne 70. 6Justi ee Ruth Bader Ginsburg does not always fo llow this 31The first ord er of the Court requiring that wri tten opin ­ ru le, preferring "attorneys' fees" in contex ts in which ions be fi led with the Clerk of th e Court can be found at 8 there is clearly more than one attorney referred to. Pet. vii (1834). See Dunne 62. 1See Stal/wonh v. Crea/er Cleveland Regional Transil 38See Joyce on Wh ealoll 47 . AUlhority, 105 F. 3d 252, 253, n. I (CA6 1997). 39See id. at 40-41. BSee "Retirements and Appoi ntmen ts," supra note 5 at 40See Joyce 1304-1305, 1309-1 31 0 xx i. 41See Dunne 63 ; Joyce on WhealOIl 39, 40, 43-44. 9Wear v. Kansas ex rei. Brews/er. 245 U.S. 154, 158 42See, e.g., W. B. v. Lalimer, 4 Dall . i (Err. App. Del. ( 19 17). 1788). 100'Re tirements and Appointments," supra note 5 at xx i. 4l See Joyce 130 I , IIUniled Slales v. Delroil Timber & Lumber Co., 200 443 Pet. vi . U.S. 321, 337 ( 1906). 4SSee Rosbrook, The Art of Judicial Reportin g, 10 Cor­ 12Baier & Put ze l 12. nell L. Q. 103, 120-12 1 ( 1925). Il/bid. 46Compare, e.g.. Uniled Stales v. Teamslers. 3 I 5 U.S. 52 1 14 1d .. at I 1-1 2. (1942), with Pearce v. CommissiOller, 315 U.S . 543 ISGinsb urg, "Communicating and Com ment ing on the (1942) Court' s Work ," 83 Ceo. L. 1. 2 I 19, 2 I 20 ( 1995) (herein­ 41 As quoted in Bai er & Putzei I I. after Ginsburg, "Communicating"); Ginsburg, "In­ 48£.g .. compare the ti tle pages in 343 U.S. and 344 U.S. forming the Public about the U.S. Supreme Court's 49See 2 Dall. 399. The first 398 pages of that volume, as Work," 29 Loyola U. Chi. L. 1. 275,276 ( 1998). well as the en tirety of I Dal!., are devoted to cases de­ 16See bound volumes 479-483 U.S. cided in the Pennsylvan ia and Delaware courts. 11Pub. L. 100-352, 102 Stat. 662. See Duqueme Lighl .\0 1 Cranch 137, 138-/ 39 ( 1803). Co. v. Barasch. 488 U.S. 299, 307 , n. 4 (1989). 51B aier & Putzel 13. 18MacLean, "High Court Ju sti ce Suggests Circulating 9'h S2 See Joyce on Whealoll 52. Circuit Drafts, " Los Angeles Daily 10umal, Aug. 23, S3 See id. at 50-5 J. 2000, pp. I, 8. 54Joyce 1350-135 J. 19When Henry Put7.el retired, Chief Ju sti ce Burger said: 55See Joyce on Whealon 60. ''The work of th e Reporter of Decisions is not known to 56See id. at 60-6 I. th e publ ic but is of great im po rtance to the courts, the S1' W all ace's Reports," I Am. L. Rev. 229, 237 (1867). legal profession. and to the public." "Retirement of Re­ 58 200 U.S. 32 1 ( 1906). porter of Decisions," 440 U.S. v (1979). 59 178 U.S. 476, 477, 2d par. ( 1900). 20See generally Dunne, " Early Court Reporters," 1976 60200 U.S. at 337. S. Ct. Hisl. Soc. Yearbook 6 1 (hereinafter Dunne). 61/d. at 322, 2nd full pa r. 21Co hen, A Guide to the Early Reports of the Supreme 62Memorandu m from Justi ce Ru th Bader Ginsburg to Re­ Court of the United States 78 ( 1995). porter Frank D. Wagner (July I, 1996) (on fi le with au­ 22 1d. al 90-9 I. thor); see also Ginsburg, "Communicati ng," 2120. THE ROLE OF THE SUPREME COURT REPORTER IN HISTORY 23

63Baier & Putze l 12. 68See Baie r & Putzel 12. ('oSee ibid. 69See, e.g., Alden v. Maine, 527 U.S. 706, 707-710 65See , e.g., Olmstead v. L. C , 527 U.S. 581, 58 1- 582 ( 1999). (1999). lOSee, e.g., Republic Na t. Bank ofMiami v. United States, ('6See, e.g.. Amch.em Products, Inc. v. Windsor, 52 1 U.S. 506 U.S. 80, 80- 8 1 ( 1992) 591,591-592 (1997). l lFor the first sli p opini on syll abus, which includes the 61 The prac ti ce of including opini on page numbers in the first voting lin eup, see North. Carolina v. Alford, 400 U.S. sy ll abu s was in stituted by th e fourth Report er, Ri chard 25, 26 ( 1970). Peters, Jr. See Preface, I Pel.. iii-iv (1828). See also Joyce 12See Baier & Put zel II. on Wh eaton 60. 13492 U.S. 573, 577 (1989).

Conscience in the Court, 1931-1946: Religion as Duty and Choice

ANDERSON

That the moral duty to obey the law should be over aJ I other moral duty is something that the majority read into the Constitution. The Con­ stitution says nothing about it, so it can only be to the Constitution because the judges think that that is the way a good citizen should behave. Frederick 1931 1 The theological-political problem2-the sented in naturalization cases, because federal conflict of loyalties to God and state-arises law for to dem­ in various manifestations. It arises when peo­ of faith engage in political action on issues commitment to its nrc'c""r..-,tor,,, from abortion and most-favored-na­ for must demonstrate that he "has tion status to homeless ness and foreign aid. moral char­ Historic controversies Indian re­ acter, attached to the of the Consti­ and revealed ten­ tution of the United and well u,c>uv;,,"u to the good order and of the United victions and the duties of !-,VoU"'-'" States."} Further, he must take an oath of alle­ The ,,,..roll.. ,,.,, giance, swearing, in part, "to bear arms on be­ half of the United States when required by the Jaw."4 Since 1952, the statute has provided American his- certain exemptions from this particular re­ quirement for bona fide religiolls objectors.s by Thus, the law remains to this day concerned tion to service. with the theological-political problem in the The same basic difficulty has been pre- natural ization context. 26 JOURNAL OF SUPREME COURT HISTORY

Consider a recent case. In 1992, a fed­ eral district court in Tennessee denied the cit­ izenship petition of Mahmoud Kassas, a Syr­ ian man, on the ground that he was not TWO PACIFISTS WIN "attached to the principles of the Constitu­ tion."6 This conclusion followed from RIGHT TO CITIZENSHIP Kassas' unwillingness to swear in advance that he would personally bear arms in any fu­ ture wars. Kassas was a Muslim, and the Dr. Macintosh and Miss Bland, court found that "he thought he would be War Nurse, Win Reversal condemned to hell" if he killed, or was killed of Citizenship Ban. by, another MuslimJ The Government ar­ gued, and the court agreed, that Kassas could not avail himself of the religious-objector ex­ emptions, because he was opposed to only BOTH CANADIAN VETERANS some wars.8 Under an earlier Supreme Court ruling, such selective opposition to military Appeals Court Holds Scruple acti vity is insufficient to warrant exemption from the oath.9 Against War on Christian The court in this case confronted a prob­ Ground Is Justified. lem basic to pol itics for centuries: Someone has to decide what exacLly belongs to Caesar. However, the manner in which American SCHWIMMER CASE DIFFERS courts approach this problem has changed during the course of the twentieth century. In the years leading up to the outbreak of World OpInIon Calfs Woman PacIfIst an War II, the Supreme COUlt decided a series of "Absolute Atheist," With No naturalization cases involving applicants for Sense of Nationalism. citizenship who had refused to swear that they would take up arms personally in any future war. 10 The question presented in those cases In 1930, Connecticut and New York District Courts was whether such applicants could be "at­ upheld the right of Canadians Douglas Macintosh, a Baptist preacher who taught theology at Yale Divinity tached to the principles of the Constitution" as School, and Marie Bland, a nurse who was the required by the federal naturalization stat­ daughter of an Episcopalian minister, to become ute. I I In three cases between 1929 and 1931 , U.S. citizens despite their religious scruples against bearing arms in wars they considered morally unjust. the Court held that such applicants were not so attached, and it denied their petitions for citizenship.12 Two of these applicants argued that their during the Great War. The Court refused their religious convictions forbade their making pleas for accommodation. blanket assurances that they would bear arms Some fifteen years later, and in the wake personally in any and all wars in which the of the Second World War, the Court seem­ United States might engage in the future. ingly reversed course, granting the applica­ Douglas Macintosh was a Baptist preacher ti on of James Girouard, a Canadian-born who served as a chaplain in World War 1. Seventh-day Adventist who stated that hi s re­ Marie Bland was the daughter of an Episcopa­ ligious convictions forbade hi s bearing arms li an priest who herself had served as a nurse personally.l) The Court explicitly overruled CONSCIENCE IN THE COURT, 1931-1946 27

Before they applied for U.S. citi­ zenship, Macintosh (left) and Bland (right) had both served in World War I. Macintosh enlisted as a chaplain in the Canadian Army and Bland served as a nurse in the U.S. Army. its earlier naturalization decisions 14; Gir­ commIssIon and omission. Yet even if the ouard's case seemed to signal a new way of Justices cannot spell out any mUltipronged thinking about religious conviction. Closer test to define "religion," they can-and examination of the arguments made to, and do--harbor assumptions about the nature of adopted by, the Court during these years be­ religion and religious belief that propel their lies that conclusion. reasoning and rhetoric. One legal scholar has This article argues that the Court's appar­ argued that the "fundamental conundrum" of ent reversal in Girouard represented no rever­ any theory of religious liberty is that it cannot sal of attitude toward religious belief. be divorced from the theorist's own under­ Throughout these cases, the majority under­ standing of religion. 16 stood religious beliefs to be ordinary lifestyle Charged with the task to fashion a regime choices rather than uniquely significant ex­ that protects free exercise of religion and me­ pressions of transcendent duty. Part I will de­ diates among contending religious sects, the scribe the ways in which the Court's discus­ theorist-or the Justice-must adopt some sion of religion has always betrayed a contest basic notion about what counts as "religion" of assumptions about the essence of religious or what the nature of a religious obligation convictions. Part II will describe the apparent might be. In short, "any account of religious reversal of opinion signaled in Girouard. Part freedom will necessarily depend on-and III will explain that reversal as resulting from hence will stand or fall along with-more the operation of the principles of reduction basic background beliefs concerning matters and marginality. It will argue that, notwith­ of religion and theology, the proper role of standing the importation of duty-based rheto­ government, and 'human nature. '" 17 The state ric from earlier opinions, the Court persisted of the Court's religious-liberty jurisprudence in its understanding of religion as ordinary must be attributed, in large part, to the ascen­ choice. dance of certain of those "background be­ liefs."18 I. The Fundamental Conundrum A. The Idioms of Duty and Choice The Supreme Court has been reluctant to haz­ One important question in understanding the ard definitions of "religion."ls And surely this essence of reI igion is whether expression of is a difficult task, fraught with dangers of religious convictions results from ordinary, 28 JOURNAL OF SUPREME COURT HISTORY autonomous choice or tran­ immune from attack under the Free Exercise scendent obligations. The answer to this ques­ of the burden it on tion likely answers subsequent exercise.24 This decision shows the about the limits of state over indi­ extent to which the Court has made a 1-'10'-''''_'' viduals' For instance, it is of a choice-based understanding of likely that judges who conceive be­ religion to a duty-based liefs to be no different from other opin­ ions-the result of autonomous choice-will B. Explaining the Preference find most f!overnmental interests to be suffi­ for Choice of the Political theorist Michael Sandel argues that individual to exercise his The the modern Court's understanding of individual can choose another belief at less as the of autonomous cost than the choices is grounded in a similar understand- of the individual as a wholly autonomous, who conceives to be more a re­ "unencumbered" self.26 On this the in­ of duties---Dr bel iefs by di­ dividual chooses his convictions vine be more solicitous of the as he chooses paper or plastic. When he de­ believer's claim for accommodation from the cides whether to express convic­ government. Because the believer's duties to­ he does so unhindered by any other, ward an eternal God are far more consequen­ more important con­ tial than his duties toward the temporal state, victions are the product of the individual's un­ this judge would the state to demon­ encumbered will. strate the most serious need for the citizen's For modern liberal it follows that obedience. government must be neutral on the of The modern Court has adopted the idiom ultimate for the liberal state, the and the result has been the individual's right to choose his own ends is of the Free Exercise Clause. 19 more important than those ends themselves27 The most important free-exercise case of the The purpose of government, is to facili­ 1990s, Division, tate free choice: "If we conceive ourselves Human Resources of v. Smith,2() rep­ free and indeDendent selves, unclaimed by resents the culmination of the Court's trend moral ties antecedent to we must be toward the Clause. Writing for the a neutral a frame- Justice Antonin Scalia noted that the that refuses to choose among Court had never relied solely upon the Free competing purposes and ends."28 Ifreligion is Exercise Clause to uphold free­ nrr,lpr·tpn in this kind of it is not pro­ dom.21 Rather, the cases that vindicated reli­ tected as a substantive end itself. Rather, exercise involved "hybrid" "[t]he the liberal invokes is not ... re­ where the spect for religion, but respect for the self whose religion it or for the c1aims. 22 Even when the that consists in the capacity to choose one's Court had addressed the substance of a freely:'29 free-exercise it had employed The alternative understanding scrutiny to invaHdate a narrow the encumbrance of divinity upon range of unemployment deci­ the will. It denies the Ji beral that indi­ sions.23 Thus, it was no hard task for the Court viduals select their convictions in Smith to hold that any neutral law that was as they select flavors of ice cream, Rather, it ly appHcable would be argues that is unique. Be­ CONSCIENCE IN THE COURT, 1931-1946 29 cause it contemplates a power higher than that tated, Madison did not say that the individual of the state, or even of this world, had the right to choose his ends free from any often imposes certain obligations upon the rather, he the language of will of the individual believer. encumbrance. Just as modern debates concerning the Indeed, many eighteenth-century Ameri­ role of religion in life reveal contests cans believed that is because between choice-based and duty-based under- belief is not governed the will that freedom of so did those debates that of conscience is inalienable. Even if he occurred among the Founding generation. a person could not it up."3l Republican Even James Madison's Memorial and Re­ theory understood a clear difference between monstrance, a de resistance for conscience and choice: conscience church-state paid tribute to the en­ choice decides."32 The republican cumbrance of conviction: understanding of conviction thus took into account "the dictates of con­ Because We hold it for a fundamen­ science"-the duti'es and obligations atten­ tal and undeniable truth, "that Reli­ dant to which we owe to addressed the and the manner of dis­ cannot renounce, even it, can be directed only in the face of civil obligations that may con­ reason and conviction, not by force flict." 33 or violence." The Religion, then, of While the fundamental question-the na­ every man must be left to the convic­ ture of religious conviction-remains the tion and conscience of every man; same, modern liberal has cast aside the and it is the of every man to ex­ sense of encumbrance felt by the ercise it as these may dictate. This As a modern liberal the­ is in its nature an unalienable ory seeks to protect religious freedom as right. It is unalienable. because the it protects autonomous choice.35 Justice John opinions of men, depending only on Paul Stevens this point well when the evidence contemplated in their he wrote that beliefs are "worthy of own cannot follow the dic­ respect" only if are "the product of free tates of other men: It is unalienable and voluntary choice."36 The ascendance of also, because what is here a to­ has with it wards men is a duty towards the Cre­ a one ator. It is the duty of every man to of many lifestyle choices. render to the Creator such and such only, as he believes to be a"~"IJ',aUlv to him; this duty is prece­ II. Apparent Reversal: From both in order of time and in de­ Macintosh to Girouard gree of obligation, to the claims of The modern legal for a civil choice-based understanding of has Madison defined a not gone unchallenged in the Court. The de­ to God that no one other than the com­ bate the whether religion municant could satisfy. For that reason, it was is more duty-based or choice-based received for the religious conscience-not the if latent, attention in the Court in the state-to determine how best to please God. up to World War II. In a series The to religious was the right to of naturalization cases, the Justices a11iculated act as one's conscience and convictions dic­ different understandings of the nature of reli­ 30 JOURNAL OF SUPREME COURT HISTORY gious belief. By 1946, it seemed that they had dence of inability to demonstrate attachment discarded the idiom of choice and adopted the to the principles of th e Constitution, and they idiom of duty. denied the applications. It was taken for granted that naturalization was a subject over A. The Legal Context which Congress had plenary legislative au­ In June 1906, President Theodore Roosevelt thority; the question was what Congress signed into law "An Act To Establish a Bu­ meant by the phrase "attached to the princi­ reau of Immigration and Naturalization and to ples of the Constitution." In other words, the provide for a uniform rule for the naturaliza­ issue "was not whether Congress might exact ti on of aliens throughout the United States."37 a promise to bear arms as a condition of its This Naturalization Act of 1906 prescribed grant of naturalization. It was simply whether the manner in which aliens could become citi­ Congress had exacted such a promise."43 zens of the United States.38 At least two years The question was one of statutory con­ prior to his application for citizenship, the struction. The text of the statute did not ex­ alien would declare to the clerk of a federal plicitly require a promise to defend the Con­ court his intention to become a citizen. After stitution by taking up arms personally. Thus, the two-year period, the alien would file a for­ the question was whether Congress had im­ mal petition for naturalization. In this petition, plicitly required such a commitment. Against the alien would aver, inter alia, that he was a background tradition of limited exemptions neither an anarchist nor a polygamist, nor "a from military service, a court must decide: believer in the practice of poJygamy."39 He How clearly must Congress speak in order to would repeat his intention to become a citizen imply the requirement urged by the Govern­ and to dissolve any remaining bonds of loy­ ment? Of course, to say that Congress had re­ alty to a foreign power. quired that particular promise in order to A federal di strict court would then hoJd a prove attachment to the principles of the Con­ hearing to determine whether the alien had stitution implicated the principles of the satisfied the requirements of citizenship. Ac­ Constitution itself, for it expressly protects the cording to the Naturalization Act, the ali en free exercise of religion. Thus, even as they would be required to swear in open court that engaged in routine cases of statutory con­ he would "support and defend the Constitu­ struction, the courts involved in these cases tion of the United States against all enemies, labored in the shadow of First Amendment foreign and domestic, and bear true faith and values. allegiance to the same."40The Act further bur­ dened the alien to demonstrate "that during B. Macintosh and Bland (1931) [the five years or more in which he has resided In March 1929, Douglas Macintosh filed his in the United States] he has behaved as a man petition for naturalization in the federal dis­ of good moral character, attached to the prin­ trict court in Connecticut.44 Macintosh was a ciples of the Constitution of the United States, Canadian who first came to the United States and well disposed to the good order and hap­ in 1904. Three years later, he became an or­ piness of the same."41 This general naturaliza­ dained Baptist preacher and returned to his tion regime continued in effect through native Canada. In 1909, Macintosh took a po­ 1952.42 sition on the faculty at Yale University' s di­ The cases discussed in this part arose vinity school. Macintosh remained in the when applicants for citizenship qualified their United States from that time until he enlisted oaths by reserving the right to object to future in the Canadian Army for service in World military service. The lower courts interpreted War J. During the war, Macintosh served as a such reservations or qualifications as evi­ chaplain for the Canadian Army and operated CONSCIENCE IN THE COURT, 1931-1946 31 an American YMCA hut in France. After the posed of Judges Learned Martin war, Macintosh resumed his duties at Manton, and Thomas Swan-reversed the de­ Yale. I he was a member of the fac­ cision of the district court in both cases.53 His­ School, Chaplain of the torical evidence demonstrated that Graduate and Dwight Professor of to war on religious grounds had respected by state and national The district court denied Macintosh's alike54 "[T]he actual of the for According to that pies of the Constitution" showed that citizens court, Macintosh was "not attached to the could refuse to bear arms when their of the Constitution" because he scruples forbade them to do SO.55 would not swear in advance his willingness Manton, In Bland, focused on Con­ to take up arms on behalf of the United nr""Tllrp' of limited States.45 Macintosh had explained that he would be to in war activi­ up the and his record of service in the recent war confirmed that pledge. Macintosh as­ the necessities of wars sured the district court that "he was ready to to the United States, in return for citi­ services. al! the allegiance he had ever ... But at no time was this duty to or ever could give to any country, but he could not put allegiance to the government of freedom or any country before allegiance to the will of conviction. government has God."47 He would take the oath of loyalty, the ci tizens' but he would reserve the right to judge the morality of any future war that might de­ mand his service48 This position Macintosh This custom was on a belief believed to be in accord with "the moral that was simply not within the ken of dples of Christianity."49 authority. Because religious con­ The case of Marie Bland followed a simi­ victions were the reach of any govern­ lar course.50 Bland was also a native Cana­ ment, could not be conditioned dian, the daughter of an Episcopalian minis­ upon the harmony of specific religious beliefs ter. At least since] 914, Bland worked as a with objectives. "The rights nurse in New York City. After the war, she of conscience are unalienable, which the citi­ worked for the United States car­ zen need not surrender and which the govern­ ing for shell-shocked American servicemen in ment or cannot take away."58 France. In May 1929, Bland filed her for naturalization in the federal district court I THE ARGUMENTS for the Southern District of New York. When The government appealed the Second Cir­ asked whether she would bear arms on behalf cuit's and the Supreme Court of the United States, Bland offered certiorari 59 Throughout its brief to caveat: "as far as my conscience as a Christian the the Government argued that the re­ will allow."5! to the now-familiar motivation for Macintosh's reserva­ pattern, the district court denied her tion was irrelevant,6o Since naturalization was tion on the that she was not suffi­ a privilege, must comply ciently "attached to the of the Con­ with every stitution."52 Act6 ! Since the of a citizen to bear arms A panel of the Second Circuit--com­ in war was a fundamental principle of the 32 JOURNAL OF SUPREME COURT HISTORY

Constitution, anyone who would not commit the right to determine whether the to comply with that duty was necessarily not defense of this country requires him attached to the principles of the Constitution to bear arms.7 l and thus not in compliance with the statute.62 The reason for noncompliance was immate­ The Government sought to equate Mac­ rial.63 intosh's reli gious convictions with a personal Thus, the Government argued that both preference not to be asked to do anything he cases were controlled by United States v. would rather not do. Schwimmer,64 a 1929 case in which the Su­ Counsel for Macintosh and Bland coun­ preme Court denied the application of a Hun­ tered the Government's arguments by urging garian-born linguist who refused to pledge her two main points: first, that their clients' reser­ willingness to take up arms in war.65 vations to bearing arms personally in any fu­ Schwimmer was an atheist whose thorough­ ture war stemmed from motives wholly dis­ going pacifism precluded her from swearing tinguishable from those that moved Rosika to take up arms. 66 The Court denied her appli­ Schwimmer; and second, that their reserva­ cation, largely for the reason that she was not tions were not extreme but were shared just an idle pacifist; rather, she made a career among a community of believers. These briefs of writing and lecturing to others about the speak th e language of encumbrance and com­ viI1ues of the pacifist ideology.67 munity. According to the Government, Macintosh Respondents' first task was to distinguish was no different from Schwimmer: In each themselves from Rosika Schwimmer. Coun­ case, the applicant for citizenship "reserved sel for Macintosh-lohn W. Davis, Charles freedom to refuse to comply with the constitu­ Clark, and Allen Wardwell-laid out the dif­ tional authority of Congress and of the Presi­ ferences between the casesJ2 First, whereas dent in case of war."68 Any distinction be­ Schwimmer was an avowed atheist whose ob­ tween religious-conscientious objection and jection was rooted in a "cosmic conscious­ atheist-conscientious objection was irrele­ ness," Macintosh was clearly motivated by re­ vant.69 The Government's rhetoric attempted ligious convictionJ3 Indeed, the Government to reduce Macintosh's sincere religious con­ had admitted in its brief in Schwimmer that viction to mere personal preference. Mac­ "refusal to perform military service on ac­ intosh' s explanations, the Government said, count of religious scruples is not involved in "disclose a wilJingness to bear arms if he is this case."74 Counsel described Macintosh's able to satisfy himself 'that the war is morally position as derivative of religious duty, not justified.' But he insists upon the reserved autonomous choice. Indeed, it was "his con­ right to determine that matter f or himsell"70 science dictated by the will. of God" that Such language ignores the point of religious might require Macintosh to abstain from a conviction-that the convicted person must particular future warJ5 Again, " [t]he respon­ satisfy God, that he must yield to determina­ dent's primary desire was the protection of his tions made in accord with God's judgment. right not to bear arms in a war which his con­ According to the Government: science, dictated by the will of God, might consider to be morally unjustified."76 The The position of respondent is merely dictates of conscience resonate throughout that of a highly educated man with Macintosh' s and Bland's arguments to the Su­ that deep sense of right and wrong preme Court. which every applicant for citizenship Second, whereas Schwimmer had made is presumed to possess, seeking to clear that she would take no part in any mili­ transfer from Congress to himself, tary effort, Macintosh stated that he was not CONSCIENCE IN THE COURT, 1931-1946 33 wholly opposed to military action; indeed, he her religious opposition to celtain kinds of had enlisted in the Canadian Army as a chap­ wars. lain during the First World War.?7 He only The brief then cited the proclamations of wished to reserve the right not to bear arms the World Conference of the Bishops of the himself when his religious scruples required Protestant Episcopal Church, held in England his abstention.?8 Bland had urged a similar in J930.85 More than fifty American bishops reservation.79 took part in that convention,S6 which declared Third, whereas Schwimmer expressed that "war as a method of settling international her intention to propagate her ideas about war disputes is incompatible with the teaching and and pacifism, Macintosh explained that "he example of Our Lord Jesus Christ."87 The does not anticipate engaging 'in any propa­ Conference urged Episcopal ians throughout ganda against the prosecution of a war which the world to work for the success of the the Government had already declared and League of Nations and the Kellogg-Briand which it considered to be justified,' or in alter­ Pact.88 "For the Christian must condemn war ing the opinion of others."8o Bland made simi­ not merely because it is wasteful and ruinous, lar arguments. In short, the cases of Douglas a cause of untold misery, but far more because Macintosh, the Baptist minister, and Marie it is contrary to the will ofGod."89 Obedience Bland, the Episcopalian nurse, were obvi­ to God 's will was the order of the day: "We ously different from that of Rosika Schwim­ dare not be disobedient to the heavenly vision mer, the atheist propagandist. Schwimmer of a world set free from the menace of war, or could not control. shrink from any effort that will make that vi­ Moreover, these particular individuals sion a reality."90 The Conference made clear did not stand alone with their religious be­ the importance of duty--encumbrance-as liefs. Both Bland and Macintosh presented the impetus for worldly action. Its statements statements of established religious organiza­ also reflect the thoughts of a constitutive com­ tions and leaders echoing the substance of munity of which Bland was a member. their religious objections to certain kinds of Macintosh presented similar evidence of war. Bland's attorney, Emily Marx, submit­ such a community of belief. In extensive foot­ ted an amicus brief as counsel for several notes, his counsel offered the official state­ members of the Protestant Episcopal Church, ments of Presbyterian, Universalist, Episco­ the principal purpose of which was to dem­ pal, and Methodist Episcopal churches, as onstrate the extent of the faith community well as the Federal Council of Churches.9J that shared Bland's view toward personal These statements urged congregants to direct participation in war. 8J Specifically, the brief their supreme allegiance toward God, who argued that the Government's hard rule alone was "Lord of the conscience."92 "would exclude from citizenship the many In addition, the Quakers did not think that members of the Episcopal Church who Douglas Macintosh and Marie Bland were acquiesce in the ethical position of the anything like Rosika Schwimmer.93 In sup­ Church as expressed from time to time by its port of Macinstosh and Bland, the American leaders in this country."82 The brief quoted a Friends Service Committee wrote: 1925 resolution, adopted by the Episcopal General Convention, that conde mned "ag­ Madame Schwimmer would not ren­ gressive watfare" as a crime in which indi­ der to Caesar, for she had " no sense vidual "followers of Christ" ought not partic­ of nationalism, only a cosmic con­ ipateS3 One-hundred-thirty-one bishops from sciousness of belonging to the across the nation signed their names to that human family." Nor did she ac­ resolution.84 Marie Bland was hardly alone in knowledge a duty to God, for she de­ 34 JOURNAL OF SUPREME COURT HISTORY

clared that she was an "absolute fered significantly from a conscience not so atheist." Professor Macintosh, Miss encumbered. In an opinion authored by Justice Bland, and those who have a fellow­ George Sutherl and , the Court reversed th e de­ ship with them base that fellowship cision of the Second Circuit and denied upon a unity of feeling diametrically Macintosh' s application for citizenship. Writ­ opposed to Madame Schwimmer, ing for a 5-4 majority,97 Justice Sutherland because they patriotically acknowl­ held that Schwimmer controlled thi s case. edge one duty and reverently in sist Moreover, he described all ideological objec­ upon the other.94 tions to war as mere personal choices. The purpose of the oath of allegiance and the testi­ In contrast to Schwimmer, both Macintosh and mony offered in support thereof was to deter­ Bland were attempting to reconcile the de­ mine whether the applicant "is willing to sup­ mands of two independent sovereigns. Their port the government in time of war, as well as political opinions were constrained by reli­ in time of peace, and to assist in the defense of gious convictions that superseded temporal the country, not to the extent or in the manner ties. The Quakers rallied to their defense in an lhat he may choose, but to the extent and in effort to remind the Court of its historic duty to such manner as he lawfully may be required to effect the promise of reli gious freed om. do."98 In contrast to the Second Circuit's care­ ful distinction of Macintosh 's reservation 2. THE OPINIONS from Schwimmer' s, Justi ce Sutherland treated It may be th at proof of identity with a the two as if th ey were identical-simple, per­ larger community alarmed some Justices. If sonal preferences that could be forgotten or Schwimmer was dangerous because she in­ manipulated in the interest of national needs. tended to influence others whom she might Mac intosh's problem was that "he means to meet, Bland and Macintosh may have seemed make his own interpretation of th e will of God dangerous as symbols of an already well-es­ the decisive test which shall conclude the gov­ tablished group.95 Stephen Carter has noted ernment and stay its hand ."99 The concurrence that "America's legally constituted sovereigns of so many amici apparently mattered little to have generally been less kind to dissenting Justice Sutherland's majority. groups than to dissenting individuals, perhaps The proposition that such individual pref­ because the one is more dangerous than the erence could interfere with the pol icy of the other."96 Regard less of the Court' s reaction to nation was inimical to national prosperity. In­ their claims of group identity, Bland's and deed, the nation's right to self-preservation Maci ntosh's reservations could not be de­ could trump many individual rights, including scribed as idiosyncratic. Nei ther could they be the ri ghts of conscience. l00 True enough, Jus­ labeled extreme, sin ce th ese churches' decla­ tice Sutherland wrote, the United States is a rations-and th e Kellogg-Briand Pact, for nation th at recognizes "the duty of obedience that matter-seemed to be far more expansive to the will of God."lo l than the limited desire to judge th e righteous­ ness of particular wars. Nevertheless, the But, also, we are a Nation with th e Court treated these re li gious claims no differ­ duty to survive; a Nation whose Con­ ently than it had treated Schwimmer's athe­ stitution contemplates war as we ll as ist-pacifist claim two years earlier. peace; whose government must go forward upon the assumpti on, and a. Sutherland 's Majority safel y can proceed upon no other, Five Justices were not persuaded that a th at unqualified allegiance to the Na­ conscience "dictated by the will of God" dif­ ti on and obedience to the laws of the CONSCIENCE IN THE COURT, 1931-1946 35

claim as "ruled by the decision just announced in United States v. Macintosh." 103 Justice CITJZENSHJP DENIED Sutherland took the opportunity, however, to cast the Court's decision in these cases as an exercise in preserving the separation of pow­ TO ARMS OBJECTORS ers, Congress had prescribed the words of the oath, and those words, said the Court, "do not Supreme Court Bars Or. Mac­ admit of the qualification upon which the ap­ plicant insists. For the court to allow it to be intosh of Yale and Miss Bland made is to amend the act and thereby usurp for Pacifist Views. the power of legislation vested in another de­ partment of the government."I04 The Court avoided the substantive issue-whether ex­ BENCH IS DIVIDED, 5 TO 4 pressing a bona fide religious conviction lim­ iting one's participation in certain wars ren­ dered a person unattached to the principles of Chief Justice Hughe! ~nd Thre~ the Constitution, Other!> Dis5ent-Decision 15 b, The Hughes Dissent Based on Schwimmer Case. Justice Sutherland's separation-of-pow­ ers argument in Bland responded to vigorous Spt'cinl to The ;.;~\V York T!mt ,' . arguments articulated by ChiefJustice Hughes \\"ASH1:'-:GTON, ~l::I,y ~~,-Two con· in his dissent to Macintosh. 105 Hughes wrote ~clenllou~ obj~ctor~, Dr. Dou,..;llls that Congress was indeed careful in describing Clyde Mf\clntoAh, who Wl\~ !\ Canl\· dian W!\r chaplaIn, and Mlu ~!I\rl .. the necessary attitudes ofapplicants of natural­ Averill BIRnd, who 9.· Il!'! a nurse with ization, and it was not for the Court to infer fur­ the Amer\C'an Army In France, Wl're ther requirements, especially not where the at­ today hl'lrt InpliR'lble for cltlz~n ,~hlp by the Supreme Court of the U n itE'd titude at issue was so closely intertwined with Statrs because they hl\\'e scruple! religious belief 106 Hughes explained: R,!;'l\inst hel\rlng I\rm3 In deCcnse or thl~ countr-y. Among the specific requirements as to beliefs, we find none to the effect In 1931, the Supreme Court divided five to four to th at one shall not be naturalized if by reverse the lower courts' rulings and deny citizenship reason of religious convi ctions he is to Macintosh and Bland. According to The New York Times, Justice George Sutherland raised his voice opposed to war or is unwilling to "emphatically at times" in delivering the majority promise to bear arms. , . . [TJhe opinion from the Bench . omission of such an express require­ ment from the naturalization statute land, as well those made for war as is highly significant. 107 th ose made for peace, are not incon­ By the principle of expressio un ius, Congress sistent with the will of God, 102 intended not to i nelude religious objection Having reduced Macintosh's religious scruple to bearing arms as a disqualifying mental to a matter of personal preference, and then el­ attitude. evated the state's interest to a cosmic impera­ Yet even if the Court should supply addi­ ti ve, Justice Sutherland concluded that the in­ tional bases for denial of citi zenship-indeed, dividual religious conscience must yie ld . this was the project undertaken by the The Court quickly dispatched Bland's Court-it ought not hold religious belief to be 36 JOURNAL OF SUPREME COURT HISTORY

such a disqualifier. Specifically, Hughes has always been maintained .... The noted that the oath required for naturalization essence of religion is belief in a rela­ was the same oath that had been required of tion to God involving duties superior other federal officeholders for years. lOR By the to those arising from any human re­ terms of the Constitution, such an oath could lation.. .. One cannot speak of reli­ not constitute a religious test. 109 The Chief gious liberty, with proper apprecia­ Justice continued, ion of its essential and hi storic significance, without assuming the When we consider the history of the existence of a belief in supreme alle­ struggle for religious liberty, the giance to the will of GOd .112 large number of citizens in our coun­ try, from the very begi nning, who Because the "essence" of religion was devo­ have been unwilling to sacrifice their tion to a sovereign other than the state, religious convictions, and in particu­ Hughes wrote, "Professor Macintosh [and lar, those who have been conscien­ Miss Bland], when pressed by the inquiries tiously opposed to war and who put to [them], stated what is axiomatic in reli­ would not yield what they sincerely gious doctrine."! 13 believed to be their allegiance to the The Chief Ju stice recognized the unique will of God, I find it impossible to restraints that religious belief places upon the conclude that such persons are to be individual's will. He understood well the duty deemed di squalified for public office of religious observance: "[F]reedom of con­ in this country because of the re­ science itself implies respect for an innate quirement of the oath which must be conviction of paramount duty." 114 As a result, taken before they enter upon their only the clearest statement from Congress duties. I 10 could justify an interpretation of a law that Surely the same oath that every federal officer would subordinate allegiance to God to alle­ had taken si nce the late nineteenth century did giance to the State. I IS This argument echoes not preclude individuals with religious objec­ the republican understanding of freedom of tions to bearing arms from serving in the gov­ conscience in its recognition ofthe encumber­ ernment. To the contrary, several Quakers had ing effect of religious obligation and its con­ served in President Lincoln's cabinet. I II The ception of the self as constrained by the duties oath djd not impose any reli gious test then, owed to the divinity. Hughes' re spect for the and it ought not be construed to do so now. individual's liberty to perform hi s obligations Underlying this principle of statutory to hi s God was remarkable; one biographer construction was the Chief Ju stice's own con­ has written that "the statements of the Chief ception of religious belief and obligation. For Justice represented a lofty libertari an concep­ Hughes, the problem of religion in politics tion rarely excelled in judicial opinions."116 was the problem of conflicting duties, not in­ Joining th e Chief Justi ce's dissent was convenient choices. He explained his general Harlan Fiske Stone, who had been a member theory of religion in public life: of the 6-3 majority in Schwimmer. I 17 Justi ce Stone recognized the clear distinction be­ When one's belief collides with the tween the two cases. In fact, he prepared hi s power of the State, the latter is su­ own di ssent in Macintosh based largely on preme within its sphere and submis­ that ground.II S Stone approved the decision to sion or punishment follows. But, in deny Schwimmer's application for citizenship the forum of conscience, duty to a because she made clear her intention to en­ moral power hi gher th an the State courage others to resist the government's war CONSCIENCE IN THE COURT, 1931-1946 37

Rosika Schwimmer was a Hun­ garian-born linguist and atheist who made a career of lecturing others about the virtues of paci­ fism. When she refused to pledge to take up arms for the United States, the Supreme Court rejected her citizenship applica­ tion. The Court later made no difference between religious­ conscientious objection and atheist-conscientious objection in using Schwimmer as a prece­ dent for Macintosh. policies. 119 That fact of conduct, not the ex­ scientious objection. 123 That experience pro­ tremity of her political opinion, justified the duced in him an "instinctive distrust of radi­ result in her case. Indeed, Stone had urged cals and agitators."124 Nevertheless, while Justice Butler to edit his opinion in Stone was especially wary of objector claims Schwimmer to focus on the petitioner's be­ that sprang from "false social and political havior, rather than just her pacifist ideol­ theories," he hesitated to dismiss claims that ogy.120 This belief/action distinction, familiar were religiously motivated. 125 Thus, "[a] reli­ to the Court at least since 1879,121 drove gious dissenter such as Professor Macintosh Stone's reasoning. The reason that he did not ... could enlist his support." 126 deliver his own dissent in Macintosh was that the Chief Justice made the same point by de­ 3. JUDGING MACINTOSH claring that Schwimmer stood on its own "spe­ The sweep of Justice Sutherland's major­ cial facts." 122 Significantly, Stone did not dis­ ity opinion alarmed some commentators. De­ tinguish the cases on the fact that spite the clear differences between Schwim­ Schwimmer's motivation for objection dif­ mer's and Macintosh's ideas about war, the fered from Macintosh's. opinion held that Macintosh was controlled That is not to say, however, that Stone by the principle expressed in Schwimmer.127 was insensitive to the special circumstance of Sutherland further explained that the nation's religious objection. As a member of the Board "duty to survive" required the government to of Inquiry during World War I, Stone had oc­ proceed only upon the assumption that "un­ casion to entertain numerous claims of con- qualified allegiance to the Nation and submis­ 38 JOURNAL OF SUPREME COURT HISTORY

Although he had been in the 6-3 majority in Schwimmer, Justice Harlan Fiske Stone (above) joined Chief Justice Charles Evans Hughes' dissent in Macintosh. Stone did not distinguish the two cases on the basis of the plaintiffs' differing motivations for objecting to bear arms. Instead, he reasoned that Schwimmer's clear intention to encourage others to resist the government's war policies meant that her conduct-not her ideology-made her unfit for citizenship. sJOn to the laws of the land, as well those judges might approach this question differ­ made for war as those made for peace, are not ently than might ordinary citizens: inconsistent with the will of God ."128 This It may be natural for a judge whose principle simply meant to abolish the theolog­ life is spent in vindicating the claims ical-political problem altogether, by declaring of law, and to whom the unqualified the supremacy of the political in every cir­ character of legal duty to obey the cumstance. law is axiomatic, to attribute a simi­ University of Illinois law professor Fred­ lar primacy to moral duty to obey the erick Green attacked this principle, noting that law and place it above other moral neither the Constitution nor the Naturalization duties. It is not natural for the man in Act required what the Court seemed to require the street to do so. To him obedience of American citizens. "That a good citizen to law is one duty among many oth­ should not refuse to fight because of conscien­ ers. Ordinarily there is no conflict tious scruples is only the opinion of the between duties, but, if conflict arises, court," he wrote. 129 Green then explained why the duty to obey law seems to him to CONSCIENCE IN THE COURT, 1931-1946 39

have no necessary or inherent su­ premacy. If it is a principle of the Constitution that it should have su­ premacy, it is doubtful that many cit­ izens are attached to that princi­ ple. IJO

Moreover, Green explained, Justice Sutherland's assertion that the will of Con­ gress must be deemed to be consistent with the will of God was hardly compatible with the traditional republican notion that the legisla­ ture ought not be accorded such status by law, but only (if at all) by popular approbation.

So far from thinking that the govern­ ment can safely proceed only "upon the assumption ... that unqualified . .. submission and obedience to the laws . .. are not inconsistent with the will of God," an ordinary person would be apt to say that it is danger­ ous for the government to proceed upon such an assumption, and that a Homer Cummings (above) was counsel to James government that habitually does so is Girouard, a Canadian-born Seventh-day Adventist to a bad government. He would say that whom the Court granted citizenship in 1946, even instead of taking it for granted that though he stated that his religious convictions for­ bade him to take up arms personally. The decision its laws are in accordance with God's was guided in part by memory of the honorable ser­ will, the government should take vice of some ten thousand noncombatant Sev­ enth-day Adventists during the Second World War, anxious thought to make and keep mostly in the medical corps. them so .... 131

Justice Sutherland and hi s brothers in the count of his religious beliefs. "[Ilt is a purely Macintosh majority had subscribed to a prin­ religious matter with me," he said; "I have no ciple at once overbroad and anti-republican. political or personal reasons other than Such a principle would not last. that."l33 Girouard did not seek an exemption from all kinds of military service; rather, he C. Girouard v. United States (1946) expressed a religious scruple only against ac­ The case that finally tested the vitality of the tual combat. The di strict court ordered Macintosh rule arose in late 1943, when Girouard admitted to citizenship, but the James Louis Girouard filed a petition for natu­ Court of Appeals for the First Circuit reversed ralization in the federal court in Massachu­ that decision.'J4 Girouard's case went up to setts.132 Born in Canada in 1902, Girouard the Supreme Court. had lived in the United States since 1923. He was an engineer by trade, and a professed 1. THE ARGUMENTS Seventh-day Adventist. When asked whether Put simply, Girouard urged the Court to he would bear arms for the United States, overrule Bland. Schwimmer and Macintosh Girouard answered that he could not, on ac- were distinguishable on their facts, since 40 JOURNAL OF SUPREME COURT HISTORY

Girouard had expressed an objection only to quirements as to oath and attachment to the combat. Rosika Schwimmer had denied any principles of the Constitution, has expressly duty to participate in any war, and Douglas recognized that such requirements may be ful­ Macintosh had reserved the right to judge the filled by an otherwise qualified alien despite morality of any particular war. Girouard sim­ his religious conviction against bearing ply stated that he could not fight in any war, arl11s."143 regardless of the circumstance. 135 This] imited The Government agreed that this case reservation resembled that expressed by was indistinguishable from Bland. 144 Where it Marie Bland some fifteen years earlier. disagreed with Girouard was on the question Counsel for Girouard-Homer Cum­ whether Congress had changed its mind since mings, William Donnelly, and David Cod­ Bland. According to the Government, Con­ daire-argued plainly that "[e]xpression of gress had chosen not to revisit the substance willingness to bear arms is not a condition of the oath or the requirements for naturaliza­ upon the right to naturalization." 136 The oath tion because it had adopted the Court's con­ by its terms did not require the declarant to structions in Schwimmer, Macintosh, and agree to bear arms personally, nor had that Bland. 145 Surely aware of considerable public oath been construed to require as much when concern, Congress considered severa] propos­ administered to various civil officers of the als to overturn those decisions. The fact that it federal govemment.137 Moreover, Congress passed up all those opportunities, even while and state legislatures had long allowed reli­ it made other changes to the naturalization gious objectors to offer noncombatant service laws, suggested that Congress concurred in in lieu of actual combatI38 These arguments the Court's reading of the oath.146 Passage of echoed, and often quoted, Chief Justice the Nationality Act of 1940 and the 1942 Hughes's Macintosh di ssent. amendments-neither of which altered the Girouard further argued that the phrase basic requirements for naturalization--con­ "attached to the principles of the Constitu­ firmed this conclusion. tion" should not be construed to require will­ Next, the Government argued that the ingness to bear arms.139 Congress employed statutory requirement that the alien be willing a general phrase in the statute, and such an to bear arms posed no difficulty for the First ambiguous provision should not be held to Amendment, because "[tJhe freedom of reli­ circumscribe the religious liberty guaranteed gion guaranteed by the First Amendment specifically by the First Amendment. 14o does not include an exemption on religious More practically, the experience of Sev­ grounds from military service or from the enth-day Adventists in World War I proved duty of bearing arms." 147 This conclusion the value of noncombatant service in war­ followed from an examination of the legisla­ time. 141 ti ve history of the Amendment. Several states Finally, Girouard's counsel offered a had proposed in their ratifying conventions statutory argument in defense of his position. an amendment that would have constitution­ Turning to amendments made in 1942 to the alized a religious exemption from military applicable Nationality Act, they argued that combat. 148 James Madison's proposed Congress had specifically provided that cer­ amendments included a similar provision. In tain veterans could be naturalized without the end, the religious exemption was not in­ swearing to bear arms.142 Of course, Girouard cluded in the Bill of Rights. Girouard argued was not covered by these provisions, since he that the substance of the proposal had been was not a veteran. Nevertheless, these amend­ incorporated into the First Amendment; the ments demonstrated that "Congress, without Government countered that the failure of the abrogation or modification of the statutory re­ exemption in the First Congress proved that CONSCIENCE IN THE COURT, 1931-1946 41

it was not deemed to be a constitutional lower courts had decided similar cases in the right. J49 intervening years and expressed serious reser­ After an extended rebuttal to Girouard's vations about following the Macintosh rule. 160 statutory construction argument concerning But, the opinion in Girouard was largely re­ the 1942 amendments to the Nationality Act, flective of the single idea that Congress can­ the Government added a final argument. not make ideological conformity the test of "While the Schwimmer, Ma cintosh, and citizenship. Justice Douglas quoted exten­ Bland cases are not open for reconsideration sively from Justice Holmes' dissent in here in view of subsequent congressional ac­ Schwimmer, as well as Chief Justice Hughes's tion, the logic of events since they were de­ dissent in Macintosh, to make the point that cided confirms their soundness." ISO The Gov­ "freedom of thought" warranted the highest ernment recognized the popular discomfort protection from American courts. 161 with the precedents. lSI Nevertheless, "the in­ "The victory for freedom of thought re­ exorable sweep of our national experience corded in our Bill of Rights," Douglas wrote, since 1929 and 1931 " affirmed the reasoning "recognizes that in the domain of conscience and results of the majority opinions.IS2 The there is a moral power higher than the events leading up to World War II, especially State."162 For th at reason, the American tradi­ the attack on the United States itself, magni­ tion had been to accommodate individuals' fied the need for citizens' commitments to de­ religious sCl1.lples to certain forms of military fend the nation. 153 In short, " the test of one's service. To deny citizenship on the basis of re­ willingness to defend the Constitution against ligious objection to certain forms of service in all enemies becomes more critical and more uncertain future wars would constitute "an real when the enemy actually attacks."IS4 abrupt and radical departure from our tradi­ tions."1 63 Such language clearly recalls the ar­ 2. THE OPINIONS gument of Chief Justice Hughes in Macintosh. Having had some fifteen years-and an­ Less clear is the extent to which Douglas other war-to consider Chief Justice Hughes's adopted Hughes's understanding of religion. Macintosh dissent, the Court finally reversed Douglas relied upon a notion of " freedom of course and overruled Schwimmer, Macintosh , thought" that included religious belief but did and Bland. In Girouard v. United States, 155 the not distinguish religious convictions from Court held that a Canadian-born Seventh-day other kinds of beliefs. For instance, the Adventist should be granted citizenship, even Girouard decision explicitly overl1.lled though he stated that hi s religious convictions Schwimmer as well as Macintosh and Bland, forbade him to take up arms personally.J56 despite the fact that everyone agreed that Relying chiefly upon Hughes's dissent in Schwimmer's objection to military service Macintosh , Justice William O. Douglas wrote was not religiously grounded at all. Moreover, that the Court should not impute to Congress as much as Douglas relied upon the Hughes the intent to require a willingness to bear arms di ssent in Macintosh , he also relied upon Jus­ personally "unless it spoke in unequivocal tice Holmes' di ssent in Schwimmer. terms."157 Holmes' dissent had focused on the This decision was guided in part by mem­ Court's insensitivity to Schwimmer's right to ory of the honorable service of some ten thou­ entertain pacifism as a political opinion. "[I]f sand noncombatant Seventh-day Adventists there is any principle of the Constitution that (mostly in the medical corps) during World more imperatively calls for attachment than War II.1 5S The decision also recognized the any other," he wrote, "it is the principle of free strained reading of the loyalty oath prescribed thought-not free thought for those who by the earl ier decisions. 159 Moreover, two agree with us but freedom for the thought that 42 JOURNAL OF SUPREME COURT HISTORY

we hate." 164 If free speec h meant anything, he ion leaves us unsure. How can we make suggested, it meant that citizenship could not sense of the apparent reversal ? £t seems that be conditioned upon orthodox thought. But, in despite the opposite results in Macintosh and an ironic conclusion, Holmes likened the Girouard, the Court did not change much at atheist Schwimmer to the Quakers who had all. Indeed, it thought about religion in the hi storically opposed war and were granted ex­ same way, but it masked its preference for emptions from military service. 165 He thus choice with the language of duty. In the end, equated religiously motivated objection to the Court reduced religion to ordinary belief war with general objection grounded in some and decided in Girouard that public safety intellectual opinion. Holmes' casual conclu­ could tol erate one Seventh-day Adventist' s sion here represents an early expression of the idiosyncrasies. The Court and other legal reduction principle: Religious expression is scholars demonstrated a preference for the no different from atheist e xpression. choice-based understanding of religion by Douglas's equal importation of Hughes employing the interpretive tool s of reduction and Holmes in the Girouard opinion reveals and marginality. an inclination to treat religious convictions as if they were ordinary political opinions. The A. Reduction Court's willingness to overrule three of its The principle of reduction describes the man­ prior decisions in Girouard signals a pro­ ner in which the Court has equated religious found disagreement with the reasoning of the convictions with ordinary opinions. 169 Mark earlier Courts. Yet, equal reliance upon the Tushnet explains the operation of the princi­ Holmes dissent in Schwimmer, which ignored ple thus: the religion question, and the Hughes dissent The reduction principle divides the in Macintosh, which confronted it forcefully, religious beliefs and activities into renders it diffic ult to ascribe to the Girouard three components: the belief itself, Court any coherent understanding of religious the body of ritual activities that ac­ conviction. company belief, and the impact of belief-motivated actions-including III. The Persistence of Choice rituals-on secul ar interests. Then, for deciding free exercise issues, the "The decision of the Supreme Court in reduc tion principle applies to each of Girouard v. United States should be regarded these components the tests that have with approval by proponents of civil liberties been developed to deal with prob­ everywhere," wrote one commentator in lems of free speech. 170 1946.166Arthur Miller likewise praised the de­ cision in a letter to the editors of the American The Court denies that there is anything differ­ Bar Association Journal. He wrote that the ent about religion; in other words, a convic­ Court' s ruling recognized that "persons with tion concerning the character of God and such religious scruples are under limitations as God's laws is substantially equivalent to an real to them as those whose physical infirmi­ opinion about a political leader or the tax ties prevent their taking an actual physical part code. As a result, freedom of religion is re­ in combat." 167 Such applicants as Girouard, he duced to freedom of e xpression and denied wrote, "are not to be, under our Constitution, any of the special status suggested by its par­ persecuted for their religious beliefs."1 68 ticular mention in the text of the First Amend­ Although the result in Girouard sug­ ment.1 7 J gested that the Court had finally recognized The reduction principle was current the duties essential to religion, but the opin­ among legal scholars even at the time the CONSCIENCE IN THE COURT, 1931-1946 43

Macintosh decision came down. In his com­ the next, may be admitted with reservation of mentary on the decision, Professor John H. the right to disobey some other law or set of Wigmore defended the Court's effort to de­ laws."178 Adopting Macintosh' s argument feat the applicant's asserted "right of individ­ would place the United States on a slippery ual secession."172 Wigmore began by noting slope toward anarchy. thar Douglas Macintosh presented a personal­ The COUit itself gave effect to the princi­ ity well suited for a test case because he ple of reduction in cases decided between "made it possible [for the Court] to consider 193 I and 1946. Most relevant are the f1 ag­ squarely the issue of law without any of those salute cases, Minersville School District v. lurking prejudices that have often been asso­ Gobitis l79 and West Virginia State Board of ciated with the type of conscientious objector Education v. Barnette. ISO The Court in these so prominent in 1917-18."173 Even thi s initial cases struggled to balance the interests of the observation betrays a blindness to the differ­ nation at war with the freedom of the individ­ ences between Macintosh and Schwimmer. ual to exercise his religious convictions. The important difference for Wigmore, it While the Court reached opposite results in seems, was that Macintosh was the kind ofap­ these cases, it did not change the way it plicant who did not spark the "lurking preju­ thought about religion. It merely changed its dices" that, to Wigmore's mind, explained the mind about the appropriate balance between earlier decisions in Schwimmer and other free expression (generally) and community cases. What made Macintosh different was norms. that he was "neither a slacker nor a coward," In Gobitis, the Court held that requiring but a man with a "good Scottish name and an­ Jehovah 's Witness students to salute the cestry" and "a racial congeniality with the American flag each school day, despite their fundamental stock of our nation." 174 To be religious convictions forbidding such "idol sure, Wigmore accounted for Macintosh's re­ worship," did not offend the First Amend­ ligious identity, but that identity­ ment's guarantee of reli gious liberty.181 Ac­ Macintosh 's position as clergyman and divin­ cording to the Court, the state's interest in ity professor-was important only in sofar as promoting national unity was sufficient to it made Macintosh "a man of exemplary overcome the schoolchildren'S rights to ab­ standing." 175 Moreover, Wigmore announced stai n from exercises that offended their reli­ that because he had Scottish ancestry, gious convictions. 182 The law was impressed Macintosh presumably also possessed a more by the "binding tie of cohesive senti­ "sturdy genuine conscience."176 For Wig­ ment" than by the call of God upon individual more, the key difference between Macintosh souls. 183 and Rosika Schwimmer lay in social status Just three years later, the Court reversed and ancestry , not origin and content of belief. itself in Barnette. There the Court affirmed Wigmore's analysis of the decision fur­ the right of Jehovah's Witness schoolchildren ther reveals his unwillingness to distinguish to refrain from pledging allegiance to the religious beliefs from worldly political opin­ American flag, despite a state policy requiring ions. For Wigmore, it was inconceivable that them to do SO.184 The children had been ex­ a citizen should accept the benefits of citizen­ pelled from their school, and they challenged ship without bearing all of its burdens. "The the expUlsions on the grounds that the policy motive is immaterial," he wrote; "the fact requiring them to salute the flag violated their would be intolerable."177 And if Macintosh First Amendment rights to free exercise of re­ were permitted to reserve the right not to take ligion and freedom of speech.IS5 up arms personally in all future wars, "then Were it not for the reasoning and the rhet­ logically the next applicant, and the next, and oric of the opinion this case produced, the 44 JOURNAL OF SUPREME COURT HISTORY

Court's decision would seem to be a brilliant duty, preference for the language of choice, or victory for the free exercise of religious con­ both. By conflating religious exercise with victions. Justice Robert Jackson, writing for "other matters of opinion," the Court gave ef­ the Court, stated that this case was not about fect to the principle of reduction. religion at all. He wrote that the issue pre­ sented by the Witnesses did not "turn on one's B. Marginality possession of particular religious views or the Often coupled with the principle of reduction sincerity with which they are held."186 Rather, is the principle of marginality. 190 This princi­ the issue was one of free thought and expres­ ple describes the manner in which the COUlt sion. Turning a remarkably blind eye to the has affirmed the value of religious freedom obvious importance of religious conviction in only where the exercise of that freedom would the case, Justice Jackson used the occasion to be largely inconsequential to the social or po­ make a sweeping pronouncement in favor of litical order. 191 The Court's favorable lreat­ free expression: "If there is any fixed star in ment of free-exercise claims by Seventh-day our constitutional constellation, it is that no Adventists in South Carolina or Old Order official, high or petty, can prescribe what shall Amish in Wisconsin, for example, may be un­ be orthodox in politics, nationalism, religion, derstood by this principle. In In these cases, or other matters of opinion or force citizens to the Court could be confident that the effects of confess by word or act their faith therein."187 granting an exemption to religious objectors What did the Court say about religion? would not significantly upset the govern­ Here was a case brought by Jehovah's Wit­ ment's interest in administering its pro­ ness schoolchildren. They went to court be­ grams. 193 In short, the COUlt has justified reli­ cause the State of West Virginia required gious liberty only by its insignificance. them to salute a symbol. They refused be­ Professor Wigmore expressed this princi­ cause their religious convictions forbade their ple as well in his defense of the Macintosh de­ saluting any worldly symbol. For these Jeho­ cision. He interpreted legislative exemptions vah's Witnesses, duty to God required dis­ from military service as applying only to sent. Rather than recognizing the patently reli­ groups whose creeds specificaJJy forbade par­ gious quality of their dissent and offering ticipation in all wars. 194 The "vital distinction protection for the exercise of their religious between religious and merely conscientious convictions, however, the Court reduced their objectors," Wigmore wrote, was that the for­ convictions to the level of intellectual whim­ mer were members of larger groups who sies and offered protection only for their ex­ shared certain beliefs toward war. 195 Mac­ pressive effects. intosh's claim, he wrote, "was a purely indi­ Indeed, the Court resolved the Witnesses' vidual one, not based on the creed of any 'reli­ case by speaking of "politics, nationalism, re­ gious sect or organization.", 196 Of course, ligion, or other matters of opinion."188 Else­ Macintosh had not created his own religion; where the Court summarized the flag-salute he was a clergyman in a mainline Protestant controversy as a dispute about "matters of denomination. The fact that his denomination, opinion and political attitude."189 Thus, while as an institution, did not require its members the Court affirmed the right of these dissenters to advance his position did not alter the nature to refrain from saluting the flag as the state re­ of his belief. What altered the respect due his quired, it did so only by denying the essential belief was the fact that he was part of such a character of their dissent-its religious exer­ large denomination; if there were many more cise. By glossing the distinction between reli­ Macintoshes, war efforts might really suffer. gious conviction and ordinary attitude, the The kinds of groups that profess creeds for­ Court signaled deafness to the language of bidding participation in all wars are character­ CONSCIENCE IN THE COURT, 1931-1946 45

istically small; accommodating these groups These principles-reduction and margin­ would cost very little. 197 ality- likely explain the confusion in the The result in Girouard al so reflected the Girouard opinion. Justice Douglas provided operation of the marginality principle, good evidence of hi s adoption of the reduction whereby the Court offers protection to reli­ principle. He lifted words from Holmes and gious dissenters only where they are so few in Hughes, words about free thought and words number that accommodation would be rela­ about the essential nature of religious obliga­ tively cheap. The Court in Girouard noted that tion, and formed from them a compound of there were already some ten thousand Sev­ conscience. That compound denied the enth-day Adventists serving in noncombatant unique quality of religious conviction and ex­ roles in the United States mi litary .1 98 Girouard ercise, and it seemed to serve the interests of himself stated that he was willing to pa rticipate applicants who were members of marginal re­ in such roles. 199 Perhaps the Court really came ligious groups. The opinion in Girouard of­ to believe that "[t]otal war in its modern form" fered a different result from the earlier natu­ highlighted the need for loyal noncombatants ralization cases, but not a different in the war effort.2oo Or perhaps it was clear th at understanding of religion. thi s individual, and this group of religious peo­ ple, were si mpl y too scarce to cause much trou­ Conclusion ble. Indeed, the Justices could easily distin­ guish a claim by a Seventh-day Adventist, a The Supreme Court hl:l s convinced itsel f that it single member of a minority sect, from claims need not define religion in order to protect re­ brought by a Baptist and an Episcopalian. ligious freedom. And that may be right. But, Several decisions following the rule in those who define the limits of our freedom do Girouard confirm the operation of the mar­ hold certain assumptions about the nature of ginality principle in religious-objector natu­ religious belief that color their judgments. ralization cases. In 1949, for example, the Specifically, those who conceive religion to Court reversed a judgment of the Kansas Su­ be a choice---one among many possible preme Court denying citizenship to a Quaker ends-will likely conclude that most govern­ man who refused to take any part in military ment interests outweigh the right of the indi­ activities.201 This applicant was less willing to vidual to choose hi s religious beliefs or the support a war effort than either Macintosh or manner in which he exercises those beliefs. Girouard had been; he even stated that "he By contrast, those who understand religion was willing to have repealed all laws provid­ more as a regime of duties-an encumbrance ing for armed services.''202 Likewise, the upon the will of the individual-will be more court in In re Wiebe203 approved the applica­ reluctant to burden the religious believer be­ tion of a German-born Ru ssian national who cause he responds to another, more powerful had answered th at he would not be willing to sovereign. These basic assumptions underlie take up arms in defense of the United the decisions that judges make in reli ­ States.204 Wiebe was a member of the Menno­ gious-liberty cases. nite church.205 Girouard was cited as late as The contest of these assumptions ani­ 1970 in a decision granting the application for mated the Court' s di scussion of the natural­ citizenship of a Jehovah's Witness.206 ization cases in the years from 1931 to 1946. Girouard has thus stood to protect the In briefs and opinions, the idiom of duty and Quaker, the Mennonite, and the Witness. To the idiom of choice expressed opposing con­ the extent that it has opened the gates to citi­ ceptions of religious observance. Indeed, the zenship, it has done so only for members of precise meaning of the phrase "attached to the marginal religious groups. principles of the Constitution" turned on the 46 JOURNAL OF SUPREME COURT HISTORY

Court's adoption of one or the other under­ uralization cases suggests the triumph of standing of religious belief. Thus, the ques­ choice as the touchstone of modern constitu­ tion whether religion is better understood as tional law, the legislative response to th e paramount duty or preferential choice was as Court's decisions suggests that there remains significant to the law before the 1940s as it some vital, "premodern" attachment to the has been since. idiom of duty210 And the Court expressed itself in various This single episode in the development of ways. In the early 1930s, the duty-based un­ the law concerning religious objection reveals derstanding of religion could only be found in the timeless contest of assumptions that at­ Chief Justice Hughes's Macintosh dissent. By tends the theological-political problem. Our 1946, that understanding made its way into a Constitution frames the problem in a unique majority opinion, but in a curious way. Indeed, way, expressing as a core political value the that opinion gave voice to religious duty only citizen' s right to oppose his government when as a twin of ordinary, nonreligious choice. The religious duty calls. The task of the law, and flag-salute cases gave the Justices practice in of politics, has been to decide just when the the art of reduction, the denial of religion's needs of the state may overcome the citizen's unique, encumbering character. So familiar loyalty to God. When judges and legislators were they with that interpretive tool that their decide how good citizens should behave in a final act in the naturalization story-their republic-and under a Constitution-dedi­ vi ndication of the Seventh-day Adventist cated to the protection of religious libeIty, Girouard--expressed no change in assump­ they must take into account the obligatory as­ tions concerning the nature of religion, but pects of religious observance. The First only a new calculus of accommodation. Amendment, or the concept of religious lib­ This fundamental debate about the nature erty generally, may not require exemption for of religious belief has not been confined to religious objectors in all or even most circum­ courts. Politicians and cultural leaders have stances. Determining whether exemptions are likewise joined the debate. For example, in warranted in particular circumstances is a the wake of the Court's decision in Girouard, matter of mediating competing claims to loy­ Congress codified certain exceptions to the alty--competing duties. Courts and legisla­ oath of allegiance for religious objectors.207 tures demonstrate an understanding of this This time Congress defined its terms clearly, fundamental problem of political life only by and it did so in a manner that reflects an ap­ recognizing the sense of duty inherent in reli­ preciation for the duties of religion. A nearly gious exercise. The theological-political prob­ identical provision in current federal law lem is surely a difficult one, but it will not be makes certain exceptions for applicants who solved by ignoring the unique character of re­ prove objection to military service "by reason ligious belief. of religious training and belief.''208 The statute further defines "religious training and belief' *Note: Thanks are due 10 Professors Charles to mean "an individual's belief in relation to a W. McCurdy and G. Edward While ofthe Uni­ Supreme Being involving duties superior to versifY of Virginia School of Law for their those arising from any human relation, but commenls and encouragement. [the term] does not include essentially politi­ cal, sociological, or philosophical views or a merely personal moral code.''209 Congress lifted this language directly from Chief Jus­ ENDNOTES tice Hughes's dissent in Macintosh. As much I Frederick Green, "United States v. Macil1lash-A Sym­ as the Court's treatment of religion in the nat­ posium," 26111. L. Rev. 375,394 ( 1931). CONSCIENCE IN THE COURT, 1931-1946 47

2For a description of the proble m, see John G. West, Jr. , Stat. 1137 (1940). This particular requ ire me nt has sur­ The Politics of Revelation and Reason: Religion and vived intact to the present day. See supra note 3 and Civic Life in the New Nation 3 ( 1996). W est writes: accompanyi ng text. Imagine a group of citi zens who claim to be c iti ze ns 12See Bland, 283 U.S. at 637: Macintosh , 283 U.S. at of both the United States and some ot her country. 626- 27; Schwimmer, 279 U.S. at 653. Imagine further that they claim the ir c iti zenship in IJSee Girouard. 328 U.S. at 70. thi s other count ry is more important than their U.S. '4See id. at 69. citi zenship. Indeed, they will ri sk torture, di saster, ,sSee, e.g., Thomas v. Review Bd. of th e In d. Indep. Em­ and death on behalf of their other count,y ... [f you ployment Sec. Div., 450 U.S. 707. 71 4--1 6 (198 1) (noting can picture th is, you have grasped the fundamental that "[tJ he determination of what is a 'religious' belief or chall enge that religion has posed to po liti cs si nce at prac ti ce is more often than not a difficult and delicate least the ri se of Christianity in the Roman Empire. task" and then conclud ing, with little precise del'i niti on, Id . that some claims could be "so bi zarre, so clearly nonreli ­ )8 U.s.c. § 1427(a)(3) ( 1999). gious in motivation" as not to warrant First Amendme nt 41d. § 1448(a)(5)(A). protection). Commentators have noted the CO llrt 's fear of 5See id. § 1448(a). This sect ion provides that "a person formal definition. See, e.g., Val D. Ricks. "To God God's, who shows by c lear and convinci ng evidence ... that he is To Caesar Caesar's, and To Both the Deti ning o f Reli­ opposed to the bearing of arms in the Armed Forces of the gion," 26 Creighton L. Rev. 1053. 1054 n.2 ( 1993) (not­ United States by reason ofrclig ious training and be li ef' is ing the few cases where the COlirt has mentioned a defini­ not required to pledge that he wi ll " bear arms on behalf of tion ot' "religion"); Kent Greenawalt, " Religion as a the United States when required by the law." Rather, such Concept in Constitutional Law," 72 Calif. L. Rev. 753, a person mu st mere ly swear that he will " perform non­ 759 ( 1984) ("Achieving a decent fit with what the Su­ combatant service in the Armed Forces of the United preme Court has said about defining rel igion in the last States when required by the Jaw." Simi larly. a person few decades is not parti cul arl y difficult, because the whose reli gious training and bel ie f forbids any mi litary Court has said very little."). servi ce is required to swear th at he will "perform work of '6S teven D. Smith. Foreorda ined Failure: The Q uest national importance under civilian direction whe n re­ for a Constitutional Principle of Religious Freedom 63 quired by the law." Id . ( 1995). The statute defines "reli gious training and belief' as '7/d. "an individual's belief in a relation to a Supre me Bei ng 'SSee Michael W . McConnell , "Re ligious Freedom at a involving dut ies superior to those ari sin g from any human Crossroads," 59 U. Chi. L. Rev. 115, 120-21 (1992) relation, but does nOI include essentiall y pO lit ical. socio­ [hereinafter McConne ll , "Crossroads"] ("T he explana­ logical, or philosophical views or a merely personal tion [for the Court's re ligion decisions] presumably li es moral code." Id . not in the logic of the Bill of Rights but in the Court's per­ These provisions were in.troduced as pa rt of the Im­ ception of religion."). mi gration and Nationalit y Act of 1952, 66 Stat. 163, '9The de mi se of the Free Exercise C lause has been well 258-59 (1952). documented. See generally John W. Whitehead, "The 6See Petition jor Naturalization No. 83 14 of Mahmoud Conservative Supreme Court and the Dem ise of the Free Kassas, 788 F. Supp. 993, 994 (M.D. Tenn. 1992). Exerc ise o f Re ligion," 7 Temple Pol. & Civ. Rts. L. Rev. I 7/d. at 993. ( 1997); Mary Ann G lendon & Rau l F. Yanes, "SlruclUral xSee id at 994. Free Exe rci se," 90 Mich. L. Rev. 477, 535 ( 1991 ); Mi­ 9See Gilielle v. United States, 40J U.S. 437 ( 1971 ). chael W. McConne ll , "The Origins and Hi stori ca l Under­ roSee Girouard v. United States, 328 U.S. 61 ( 1946); standing of Free Exercise of Relig ion," 103 Horv. L. Rev. United States v. Bland, 283 U.S. 636 ( 193 1); United 1409, 1410 ( 1990). States v. Macintosh, 283 U.S. 605 (1931); United States 20494 U.S. 872 ( 1990).

1'. Schwimmer, 279 U.S. 644 (1929). 2'See id. at 88 1-82. "Section 4 of the Naturalizat ion Act of 1906, 34 Stat. 596 nSee id. at 881. For example, the Court characterized (1906), req uired that an applicant fo r naturali zati on dem­ Cantwell v. Connecticut, 3 10 U.S. 296 (1 940)-the case onstrate that during his res idency in the United States that first applied th e Free Exercise Clause to actions by prior 10 applying for citi zenship, he had " behaved as a the states-as a free-speech case as much as a free-exer­ man of good moral character, attached to the principl es of cise case. See id. Likewise, Wisconsin v. Yoder, 406 US the Constitution of the United State s, and well disposed to 205 (J 972), a case that has bee n lauded as a triumph for the good order and happiness of the same." {d . at 598. the Free Exercise Clause, was described as a paren­ This Ac t remained in e ffect until the codification of a ll ta l-rights case as much as a religious libe,ty case. See id. na tu ral izat ion laws in th e Nati onali ty Act o f 1940, 54 nSee Smith, 494 U.S . at 883. Mary Ann Glendon and 48 JOURNAL OF SUPREME COURT HISTORY

Raul Yanes note that "[wlhat Sm.ith brings o ut into the contest of assumptions concerning the nature of religious open is the degree to which the Court in prior cases had Ci­ belief and the scope of re li gious liberty was a li ve then, nessed free exercise problems by paying lip service to a and perhaps more of a contest. compell ing interest test, while in fact according a lower 35See Sand el, Democracy's Discontent, supra nOle 26 at level of sc rutiny to asserted governmental interests." 66. Glendon & Yanes, supra note 19 at 523. 36 Wallace". l ajJree, 472 U.S. 38,53 ( 1985). 24See Sm ith , 494 U.S . at 876--82, 886 n.3. Since Sm.ith , 37Na turali za ti on Act of 1906, 34 Stat. 596, 596 ( 1906). the Court has susta ined only one simple Free Exercise 38See id. at 596-98. cha ll enge. See Church ofthe Lukul1li Babalu Aye, In c. v. 391d. at 597. City of Hialeah, 508 U.S. 520, 546--47 ( 1993). 4old. al 598. 25 For an example of the Ju stices' preference for choice, 41 1d. see Wallace v. l ajJree, 472 U.S. 38, 53 (J 985), where Ju s­ 42Congress retained these procedures and req uirements tice Stevens wrote for th e maj ori ty tha t "religious bel ie fs when it enacted both the Immigration and Nati onality Act worthy of respect are the product of free and vol un tary of 1940, 54 Stat. I 137 (1940), and the Immi gration and choice by th e fa ithful." See also Estate of Th ornton v. Nationality Act of 1952,66 Stat. 163 (1952). Caldor, Inc., 472 U.S. 703, 7 11 ( 1985) (O'Connor, J., 43Sa muel Hendel, Charles Evans Hughes and the Su­ concurring), where Justi ce O'Connor characteri zed the preme Court 142 ( 195 I). desire of Sabbath-observers as "the right to select the day 44 For the facts of this case, see Macintosh v. Un ited of the week in wh ich to refrain from labor." Responding States, 42 F.2d 845, 846--47 (2d Cir. 1930), rev'd, United to thi s characterizati on, Professor McConnell mu sed that States v. Mo cintosh, 283 U.S . 605 ( 193 1). See also "Brief "It would come as some surpri se to a devout Jew to find for th e United States" at 3- 7, United Stotes v. Macintosh, tha t he has 'selected the day of the week in which to re­ 283 U.S . 605 ( 193 1)( No. 504); " Brief for Resp't" at 4-6, frain from labor,' si nce th e Jewish people ha ve been United States v. Macintosh , 283 U.S. 605 ( 193 1) (No. under the impression for some 3,000 years that th is 504). choice was made by God." McConn ell , "Crossroads," 4'See Macintosh, 42 F.2d at 847. supra note J8 at 125. 46See id. at 846. 26See Mi chael 1. Sandel, Democracy's Discontent: 471d. America In Sea rch of a Public Philosophy 65-71 4KSee id. Mac intosh answered Question 22-regarding (1996) (hereinafter Sandel, Democracy's Discontent!: hi s willingness to take up arm s-with these words: "Yes, Mi chael J. Sandel, "Preface," Liberalism a nd the Limits but I should want to be free to judge as to the necessity." or Justice xii-xiv (2d ed. 1998) (hereinafter Sandel, Id. LLJ]; Mi chael J. Sandel, "Freedom of Conscience Or 49"Brief for the United States" at 7, United States v. Freedom of Choice?" in Articles or Faith, Articles of Macintosh, 283 U.S. 605 (l93 1) (No. 504) (quoting un­ Peace: The Religious Liberty Clauses and the Ameri­ publ ished distri ct court findings). can Public Philosophy 74-92 (James Davison Hunter & sOFor the facts of thi s case, see Bland v. United States, 42 Os Guinness, eds., 1990) [herein after Sandel. "Freedom F.2d 842, 843 (2d Cir. 1930), rev'd, United States v. of Conscience or Freedom of Choice?"]. Bland, 283 U.S. 636 ( 193 1); " Brief On Behalf of 27See Sandel, Democracy's Discontent, supra note 26 at Pet' r-Appellee" at 2-4, United States v. Bland, 283 U.S. 12 ("For the liberal self, what matt ers above a ll , what is 636 ( 1931) (No. 505). most essential to our personhood, is not the end s we slBland, 42 F. 2d at 843. choose but our capacity to choose them."). S2See id. 2SSandel, "Freedom of Conscience Or Freedom of SlSee Bland, 42 F.2d at 845; Macintosh, 42 F. 2d at 849. Choice?," supra note 26 at 76. '"See Macintosh, 42 F.2d al 847-48. 29Sa ndel , LLJ, supra note 26 at xii. 5·' ld. at 848. 30Ja mes Madison, A Memorial and Remonstrance To 56See Bland, 42 F.2d at 844. the Honourable the General Assembly of the Com­ '7Id. monwealth of Virginia, reprinted in Church and State 'XMacintosh, 42 F. 2d at 848. in American History: The Burden of Religious Plural­ 59See United States v. Macintosh , 282 U.S. 832 (1930). ism (John F. Wilson & Donald L. Drakeman, eds., 2d ed., 60See "Bri ef fo r the United States" at 2, 26, United States 1987). ". Macintosh, 283 U.S. 605 (1931) (No. 504). The "Ques­ 31Sa nd el, Democracy's Discontent, supra note 26 at 66. ti on Presented" made no mention of the appli cant 's reli­ 32 1d. gious convictions: The question was "Whether an alien )3 Id. who ... stated that he would be un wi lling to bear arm s in 34Thi s article does not argue that the Founders were re­ defense of the United States unless he be lieved 'that the publicans rather than liberals. The point is simply that the war was morall y justi fied,' and who reserved to himself CONSCIENCE IN THE COllRT, 1931-1946 49

the right to judge the necessity for laking up arms, is enti­ 83M at 5. tled (0 naturalization." M 1-1. And the "Argument" 84See id. at concludes, "Motives which preclude compliance with ~5See id. at 12. law, whether conscicntious, religious. or sinful, are irrele­ id. at 12-14. vant when compliance is made the condition of a right." s7ld. at 12. (Emphasis original.) Mat SRSee id. The Kellogg-Briand Pact, in 1928, ex­ 61See id. at 9, 12. pressed the common desire of 15 countries (originally), b2See id. at 16--18. including the United States. to rid the world of war. "Per_ 63See ld. at 26. suaded that the time has come when a frank renunciation U.s. 644 (1929). For a detailed account of the of war as an instrument of national policy should be made Schwimmer litigation, see Ronald B. Flowers and Nadia to the end that the peaceful and friendly relations now ex­ M. Lahutsky, Naturalilation of Rosika isting between their peoples may perpetuated," the Schwimmer," 32 .f. Church & SI. 343, 343-58 (1990). natones agreed to conduct their foreign relations "only by 65See Schwimmer, 279 U.S. at 653. pacific means." David Hunter Miller, The Peace Pact of ('I;See id. at 648-49. Paris: A Study of the Briand-Kellogg Treaty 247 id. at 648-49. 652. The majority opinion repeatedly (J92il). noted the likelihood that Schwimmer would cncourage on Behalf Edward L. Parsons et al." at 12, others to abstain from wartime activities. See, e.g., id. at Uniled Slclles v. Bland, 283 U.S. 636 (1931) (No. 505). 652 C'[Hjer testimony clearly that she is dis­ (Emphasis in originaL) posed to ex en her power influence others to such oppo­ 901d. at sition [to war]."). 91See "Brief for Resp't" at 45-48 Uniled Slates 6S"Brief for the United at J9. Slales Macintosh, 283 U.S. 605 ( 193 I) (No. 504). Macilllosh, U.S. 60S (1931) (No 504). 921d. at 45. 91See "Brief in Behalf of American Friends Service Com­ for the United States" at 10, Uniled Stales 1'. mittee" at 5, Uniled Stales v. Macilltush, 283 U.S. 605 Maci!1losh, 283 U.S. 605 (J 93 I) (No. 504) (emphasis (1931) (No. S(4) and United v. Bland, U.S. added; citations omitted). 636 (1931) (No 505). 71/d, at 10-11. 941d. at 5. "Brief for Resp't" 43-51., Uniled Slates v. 9SSee Stephen L Carter, The Culture of Disbelief: How Macintosh, U.S. 605 (1931) (No 5(4) American Law and Politic~ Trivialize Religious Devo­ ill. at 44. tion 39 (1993) [hereinafter Carter, Culture of Disbeliell 741d. (quoting "Brief for the United States" at 17, United autonomous intermediate institutions, religions Stale,1 v. Schwimmer, 279 U.S. 644 [1929IlNo. 484]). can work against the state."). '1j"Brief for Resp't" at , Uniled Slates Macintosh, 96Stephen L Carter, The Dissent of the Governed: A 283 U.S. 605 (1931) (No 504). Meditation on Law, Religion, and Loyalt}' 62 (1998). 7"ld. 3t44 (emphasis added). Carter explains, id. at 47. (Bly protecting advocacy only until it moves people id. to act, courts have drawn not simply a Bland. 42 F.2d at 843. Bland suggested the follow­ speech/action distinction, but an individual/group ing oath: "I hereby declare, on oath ... that I will support distinction. The lone critic is no danger. because he the Constitution of the United States and willf,1 as far can do nothing alone. But the group, because it is my conscience as a Christian will aJlow[,] defend it better able to act, becomes a threat. ThaI is why against all enemies foreign and domestic .... " ld. in power have always sought legal means to sO"Brief for at 49, United Siaies Macinlosh, thwart organizations that arc preaching dissent, 283 U.S. 605 (1931) (No. 504) (citations omitted) while leaving inerfective individuals alone. "Brief on Behalf of Edward L. Parsons et al.," Id. at 63. United Siales v. Bland, U.S. 636 (1931) (No. Tn 97The majority was composed of Justices Pierce Butler, addition to statements made by Bland's own denomina­ James Clark McReynolds, Owen Roberts, Sutherland, tionalleaders, this brief includes an appendix cataloguing and Willis Van Devanter. Chief Justice Charles Evans statements made by leaders of various denominations, Hughes dissented, joined by Justices Louis Brandeis, Oli­ cluding Methodist Episcopal, Quaker, Northern Baptist, ver Wendell Holmes, and Harlan Fiske Slone. Disciples of Christ, Presbyterian Church the U.S.A., 9RMacintosh, 283 U.S. at 616 (emphasis added). Churches of Christ, and the United Lutheran Church. See 991d. at 625. id. at I lOoSee iei. at 622. Slid. at 4. lOIId. at 625. 50 JOURNAL OF SUPREME COURT HISTORY

I02/d. 572); "B ri ef fo r the United States" at 2--4 , Girouard v. l03United States v. Bland, 283 U.S. 636, 63Cr-37 ( 1931), Unil ed Slales, 328 U.S. 61 (1946) (No. 572). ove rruled by Girouard 1'. Uni ted Stales , 321\ U.S. 61 J])Bri ef fo r the United St ates at 3, Girouard v. Unit ed ( 1946). Stales , 328 U.S. 61 (1946) (No. 572). 1rJ4/d. at 637. 1J4See Uniled States v. Girouard, 149 F.2d 760, 763 ( 1st I05See Macintosh, 283 U.S. at 627-35 (Hu ghes, C. J., di s­ Cir. 1945). senting). Ju stices Holmes, Brandei s, and Stone joined in iJ5 Accordillg to Girouard 's brief, this di ssen tin g opinion . Merl o Pusey observed that "[i]n Petitioner asserts no right to question the moral lhe celebrated case of Douglas Clyde Macintosh four of rightness of any particular war, nor does he debate the strongest men ever to sit Oil the supreme the fina lity and necessa ril y binding effect on him of bench-Hughes , Holmes, Brandeis, an d Stone-stood to­ the decision of Congress. Neither does he seek to re­ gether and lost." 2 Merlo J. Pusey, Charles Evans serve to himself determination of the ex tent or man­ Hughes 718-19 (1951). ner in which he shall assist in the defense of hi s lor,Se e MacinlosiJ , 283 U.S. at 627-28. country ; hi s willingness to support the Government I07 /d. at 628 (Hughes, C. J. , dissent ing). in time of war is unequi voca l. Hi s so le limitation is I08See id. at 630--32. that as a maller of religious be li ef' he ca nnot take I09See id. at 630--31. The Constitution Slates that state and human li fe and in that sense cannot bear arm s. federal officers "shall be bound by Oath or Affirmation, "Brief for Pet ' r" at 29. Giroua rd v. Uniled S,al e.l, 321; to support this Constitution ; but no reli gious Test shall U.S. 61 ( 1946) (No. 572) ever be required as a Qualifica ti on to any Office or pub li c 1J6/d. at 9. Trust under the United States. " U.S. Const. An. VI. In /d. at II. lIold. at 63 1. I38ld. at 13- 14. III See "Bri ef for Resp' t" at 13 n.3 , Uniled States v. lW /d. at 18-22. Ma cintosh, 283 U.S. 605 (193 1) (No. 504). "oSee id. at 20. 11 2See Macilllosh, 283 U.S. at 633- 34 (Hughes, C. J. di s­ I4ISee id. at 2 1. se ntin g). 142See id. at 23-28. Ill /d. at 634. 14 l Id. at 26. 11 4/d. 144See "B ri ef for the United States" at 5, Girouard v. II -' /d. Unil ed S((fleS, 328 U.S. 61 (1946) (No. 572 ). The Gov­ 11 6Hendel, supra note 43 at 144. ernment was represented in thi s case by Sol ici tor General 117Th e majority was composed of Ch ief Justice William J. Howard McGrath, Assistant Attorney General Theron Howard Taft and Justices Butler, McReynolds, Stone, L. Caudle, Spec ial Ass istant to the Attorney General Sutherland, and Van Devanter. Ju stice Holmes di ssented, Frederick Bemays Wiener, Robert S. Erdahl , and Leon along with Ju sti ces Brandeis and Edward T. Sanford. Ulman . 11 8See Alpheus Thomas Mason, Harlan Fiske Stone: 145See it!. at J7- 23. Pillar of the Law 522 ( 1956) . 14 6See id. at 18-22 . 119See id. at 5 19- 20, 522. 147/d. at 38. 120See id. at 5J 9. 14 8See id. at 40. 121The Court had adopted thi s belief/action di stinction in 14 9See id. at 40--44. Reynolds v. United S{(Ites, 98 U.S. 145 ( 11\79), an ea rl y I sOld. at 55. Free Exercise Clause case. J5 1"It is tille," the brief conceded , "th at the opinion in the 112Mason, supra note I 18 at 522 (quoti ng Ma cintosh, 283 Schwimmer case has not been deemed as quotable as the U.S. at 635 [Hu ghes, C. J., dissenting]) . eloquent ... di ssent of Mr . Ju sti ce Holmes, and that the J21See id. at 523. literary quality of the Ma cillfosh opinion may suffer by 124 /d. compari son wit h Ch ief JusLice Hughes' magistral [sic] 12l /d. di ssent. " Id. at 57-58. I26/d. 152fd. at 58. J27See Macintosh , 283 U.S. at 620. 15lSee id. at 59-60. In a rhetori ca ll y charged passage, the 128Jd. at 625. Government reminded the Court of the need for military 129Gree n, supra note I at 389. capab ility: IJold. at 393- 94. [P]eace yielded to aggression , year after tragic year. 11 lId. Th e Manc hurian incident in September of 1931 was I.12For the fac ts of thi s case, see Gi rouard 1'. Uniled fo llowed by the attack on Shanghai in 1932, by the S{(IleS , 328 U.S. 6L , 61--62 (1946); "B ri ef for Pet ' r" at ri se to power of Hit le r and his hordes in 1933, by the 3--6 , Girouard v. Uniled Slales, 328 U.S. 6 1 (J946) (No . assass ination of the Austrian Chancellor in L934 , by CONSCIENCE IN THE COURT, 1931-1946 51

the violation of Ethiopia in 1935; there is no need to 165See id. at 655. Holmes wrote, "I had not supposed hith­ continue thi s grim chronology. The forces of dark­ erto that we regretted our inability to expel them rthe ness, once loosed, swept rele ntlessly and remorse­ Quakers] because they believe more than some of us do in lessly over Europe and Asia, crushing political free ­ the teachings of the Sermon on the Mount." Id. dom, cIlJs hin g religious freedom, overwhelmin g 166Note, "The Bearing of Arms as a Prerequisi te to Natu­ with a destructive nihilism every human va lue and ralization," 4 1 III. L. Rev. 469, 469 ( 1946). eve ry aspect of hum an decency, until finally mil­ 167A rthur Miller, "Is Qualified Allegiance Invol ved as to lions of hu man lives were ruthl essly exti ngu ished in Alien AppJicants?" 33 A.B.A.l . 324 . 324 ( 1947). a series of scien ti fic slaughter-hou ses by the side of 16s ld . which the mo st ou trageous excesses by the Huns of 169See Mark Tushnet, 'The Constitution of Religion," 18 Atilla, all the Barbarian hos ts of old pa le by co m­ Conl1. L. Rev. 70 1, 7 J 3- 23 (1986). For an argument that pari son into orderly dece ncy. reduction is the proper analytical method to apply to The da rk tide stru ck th is coun tr y in December free-exercise cla im s, see generally William P. Marshall , 1941, and we were faced with' a struggle fo r our "Solving th e Free Exercise Dilemma: Free Exercise as very existence. We triu mph ed in the end , after ma ny Free Expression," 67 Minl1. L. Rev. 545 (1983). wea ry , costly, bloody months-because of force, 17oTushnet, at 713. For ca ses illustrating the operation of superior force, force of arm s. Th e liberties the reduction principle, see Widmar v. Vincenl, 454 U.S. which we in consequence can still enjoy, and which 263 (1981); Braunfeld v. Brown. 366 U.S. 599 (1961): petiti oner can still enjoy, were preserved ollly Cantwell v. ConneClic!ll, 3 10 U.S. 296 (1940). through the exe rtion of milli ons of arms-bearing ci t­ In Widmar. for instance, university st udent s as­ izens, and through the costly sac ri fice wh ich over serted a free-exerci se ri ght to pray in university buildings. th ree hu ndred thousand Americans laid on the al tar 454 U.S. at 266. Although the un iversity allowed nonreli­ of freedom . gious groups to mee t in these buildings, it denied eq ual Id. access to these rel igiou s studen ts. See id. at 265, 269. De­ IS4Id. at 6J. spi te the obvious and pe rvasive importance of rel igion to 155 328 U.S. 61 ( 1946). thi s case, th e Court conce ived the case to be abou t a con­ 156See id. at 70. Ja mes Girouard answered the que stion tent-based restriction on speech . See id. at 267-70. whether he would be willing to take up arm s ill defense of 171Stephen Carter adopts thi s descripti on as well. See the cou ntry with th ese words: "No (no ncombatant) Sev­ Carter, Culture of Disbelief, mpra note 95 at 129-32. ent h-d ay Advelllist." Id. at 62. Describing the Smirh Court's "neu tra l" approach to reli­ IS7 Id. at 64. gio us liberty, he writes that "neut ral ity treats religious be­ I5SSee id. at 62. lief like any other belief, contro lled by the same rule s: the 159See id. at 65-69. choice is free , but it is entitl ed to no special subsidy, and 160See In re Kinloch, 53 F. Supp. 52 1 (W.D. Wash. 1944); indeed, it can be trampl ed by the state as long as it is tram­ In re Losey, 39 F. Supp. 37 (E.D. Wash. 1941). Both ca ses pled by accident." Id . at 134. Carter places this reduction involved Seventh-day Adventist petitioners who wished principle in a broader context: "In co ntemporary Ameri­ not to engage in actual military combat. Kinloch was al­ ca n culture, the religions are more and more treated as ready serving in the Army's medical corps, See 53 F. Supp. just passing beliefs ... rather than as the fundaments upon at 52 1; Losey, the wife of an ordained minister, stated that which the devout build their li ves. " Id. at J4 . she was wi lling to engage in "any sort of lVa r work except 172John H. Wigmore, "Uniled Slates vs. Macinlosh-A the actual shoot ing of a weapon," 39 F. Supp. at 37 . The Symposium," 26 ill. L. Rev. 375, 379 ( 193 1). court in In re Kinloch noted thatlhe Supreme Court's opin­ 17J ld. at 375. ions in Macinlosh, Bland, and Schwimmer were rende red I 74 1d. "by a divided court .. . and in all of these cases there were I 75 /d. reversals of the unanimous decisions of the Circuit Courts I 76/d. from which they ca me." 53 F. Supp. at 522. The court in In 177 Wigmore, supra note 172 at 378. re Lasey adm itted that it would grant the appli ca ti on for I 78/d. citizenshi p, "[w]erc it not for the fact that I fee l my self 179310 U.S. 586 ( 1940), overruled by WeSI Va. Siale Bd. bound by the three decisions of the Supreme Court of th e ofEdLic. v. Bamelle, 319 U.S. 624 ( 1943). United States upon this question." 39 F. Supp. at 37. 1803 19 U.S. 624 ( 1943). 161See Girouard, 328 U.S. at 65-69. 1~ISee Gabitis, 3JO U.S. at 600. 162 Girouard, 328 U.S. at 68. IR2See id. at 595-98. J6J ld. at 69. ISJ ld. at 596. I"" Schwimmer, 279 U.S . at 654-55 (Holmes, J., di sse nt­ IS4See Bamelle, 319 U.S. at 642. ing) . 185See id. at 630. 52 JOURNAL OF SUPREME COURT HISTORY

186 /d. at 634. 202Cohnstaedt v. INS. 207 P.2d 425, 427 (Kan. 1949). 187 1d. at 642. 203H2 F. Su pp. 130 (D. N eb. 1949). 1881d. 204See id. at 134. 18Y Barnette. 31 9 U.S. at 636. 205See id. at 130. 1905ee Tushnet, supra note l69 at 713. 206See In re Pisciallano. 308 F. Supp. 818,8 19 (D. Conn . 1915ee id. In re spon se to the Court's analytical scheme, 1970) litigants frequently appe aled to the marginality principl e. 207See Immigration and Nationality Act of 1952. 66 Stat. See Tushnet. supra note 169 at 723- 24 ("The rhetorical 163. 258; H.R. Rep . 1365. reprinted in 1952 strategy of proponents of free exercise exemptions is to U.S.C.C.AN. 1653. 174 1. minimize the impact of th e exemption on th e governmen­ 2088 U .Sc. § I448(a). ta l interest. ... On the oth er side of the argument . oppo­ 209/d. nent s of free exercise exempt ions ... foc us on th e cum u­ 211lThi s " premodern" attach ment retai ns force today. In lative ilnpact of that and analogous exe mptions."). response to the Smith decision in 1990. Congress passed 1925ee Tushnet, supra note 169 at 723-24 (describing the Religious Freedom Res toration Act of 1993 Sherbert an d Yoder). (" RFRA"), 42 U.S.c. § 2000bb (1994). This legis lat ion 191 5ee supra notes 95-96 and accompanying tex t. represent ed an attempt to restore the compelling-interest 1945ee Wigmore. supra note 172 at 380. tes t se t out in ea rlier cases. See id. § 2000bb-l . Although 195 /d. at 381 . the Supreme Cou rt invalidated this federal law as it ap­ I 96/d. pl ied to state and loca l law s (see City of Boerne v. Flores. 197Cj Carter. supra note 96. at 62 (noting th at govern­ 52 1 U.S. 507 ( 1997.1), se veral states ha ve considered en­ men ts typica lly fear organized groups of individuals more acting their own vers ions of RFRA (see Tholnas C. Berg, than individual s ac ting alone). Similarly. it may be sup­ " The New Attacks on Reli giou s Freedom Leg islation. posed that governments fear large. influen ti al organiza­ and Why They Are Wrong. " 21 Cardoz.o L. Rev. 415.416 ti ons more tha n small one s. [19991). The se legislati ve de velopments con firm the no­ 19~5ee Girouard. 328 U.S. at 62. tion that the political branches remain involved in the de­ 1995ee id. bate concerning the natu re of religious co nvicti on and th e 2OFelix Frankfurter, Incorporation, and the Willie Francis Case

WILLIAMM.

By J the U.S. Supreme Court had discarded a concept of law and the judicial function that had dominated its work for the Scholars have variously described this of law as "formalism, orthodoxy," or "classical legal "1 Classical provided a explanation of the nature and sources of law, the role of in a democracy, and law's relationship to the larger society. Its abandonment deprived the Justices of a explanatory and paradigm that the power of dicial review. tried to come up with an equally substitute. One of the principal problems that classi­ that and instead devel­ cal had purported to resolve was the and absolutist to issue of objectivity. In the power of tile text of the Constitution. He frustrate the will of as a misplaced democratic How can they reliance on what he called "natural law, mately do so without imposing their own per­ which provided too much discretion sonal values and political Dreter'en(~e Both men in their differing ways After I to pro­ swer the riddle of Lochner v. vide a response to that (l which each saw as too much Two major emerged. Felix power in judges. Frankfurter The vehicle for the Black-Frankfurter de­ self-restraint, deference to the bate was the of . to and reliance on the tradi­ what extent, at all, had the Fourteenth tions of the American as the criterion Amendment's Due Process Clause made the for evaluating the constitutionality of legisla­ first Amendments to the Federal Consti­ tive policy choice. L. Black tution applicable as limitations on state au­ 54 JOURNAL OF SUPREME COURT HISTORY thority? A line of precedent tracing back to of the men who had installed the portable Justice William Moody's opinion in Twining electric chair were electricians, and the actual v. New Jersey 3 and through Justice Benjamin executioners were probably drunk at the time N. Cardozo's opinion in Palko v. Connecticut they threw the switch. I I Prison guards (1937)4 provided support for Frankfurter's ju­ dragged Francis off to his cell and called an risprudential approach. Cardozo invoked "a electrician. Meanwhile, the NAACP and oth­ principle of justice so rooted in the traditions ers mounted a crusade to prevent the state and conscience of our people" and "funda­ from trying to electrocute him a second time. mental principles of liberty and justice which The state' s bungled execution attempt lie at the base of all our civil and political in­ was the prelude to protracted maneuvering stitutions."5 Twining held that nothing was in­ and bargaining on the Supreme Court, as the corporated; Palko adopted what later scholars Justices tried, and ultimately failed, to co­ call a "selective incorporation" approach, per­ alesce around some rationale that would re­ mitting some of the federal constraints to be solve the unprecedented problem facing them: incorporated, but not necessarily a1l 6 Black could Louisiana try to kill Francis a second rejected both approaches as subjective, and time, after having botched its first attempt? insisted instead that all guarantees be incorpo­ The Court's first response was itself rated. ill-omened, suggesting how difficult it would Frankfurter and Black fully articulated be to find a humane and just solution that their positions in Adamson v. California comported with the abstract principles in­ (1947),7 but they first explored the issues in a volved. The original vote on granting certio­ case decided earlier in the Term, Louisiana ex rari was three in favor (Frankfurter, Frank reI. Francis v. Resweber (1947).8 The Court Murphy, Wiley B. Rutledge), four opposed had not encountered a case since Frank (Harold H. Burton, Black, William O. Palka's9 in 1937 that presented a real-life em­ Douglas, and Stanley Reed).1 2 With Chief bodiment of the incorporation issues in Justice Harlan Fiske Stone recently deceased gut-wrenching form. That case came before and Robert H. Jackson in Nuremberg, that the Brethren in Willie Francis's case, and it was actually a vote in favor of granting cel"tio­ tested the antagonists' dedication to their rari, but the Clerk originally reported a denial, principles. In the end, their fidelity to those and Francis's counsel so advised his client. principles sent a boy to a cruel death. The error was discovered and corrected the Louisiana tried Francis, a sixteen­ next day, but not before the COUIt's own fum­ year-old black male, for the murder of a white bling added more to hi s anguish. druggist, convicted him, and sentenced him to In the conference debates that ensued, death in the electric chair. lo The trial was per­ Frankfurter' s resolve to defend the Moody­ functory: court-appointed counsel offered no Cardozo approach to incorporation hardened. defense and did not appeal the conviction, de­ Black did not recede from his position either, spite well-founded doubts as to whether Fran­ while two Justices, Murphy and Rutledge, cis was in fact guilty. His conviction rested rai sed just the issue that FrankfUiter and Black solely on two confessions that might well in their differing ways were trying to sup­ have been found to be coerced, if counsel had press: the place of a judge' s individual con­ bothered to challenge them. They did not, and science in reaching a just decision. The laby­ Willie Francis went to the electric chair. rinthine internal politics of the Court are However, at the moment of electrocution, worth following in their own right, because the chair malfunctioned: some current flowed they demonstrate how fractured the Court was through Francis's body, enough to cause in­ at the onset of Chief Justice Fred M. Vinson's tense pain but not enough to kill him. Neither tenure. THE WILLIE FRANCIS CASE 55

In 1946, Louisiana sentenced Willie Francis to death in the electric chair for murdering a white druggist At the moment of electrocution, the chair, which had not been set up by trained electricians, malfunctioned. Enough current coursed through Francis's body to cause intense pain, but not enough to kill him.

Skelly then in private .....'.N" .... due process violations as measured by "na­ the case before the Supreme Court. He tional standards of "14 He also found framed the issue as whether the electrocution no double or cruel and unusual pun- would violate the Fifth Amendment's but he did not explicitly the double jeopardy the Eighth problem. To Reed's and Vin­ Amendment', ban on cruel and unusual pun­ son's dismay, this draft spawned ishment, or the Fourteenth Amendment's due three dissents Murphy, and Bllf­ process and protection 13 ton), two unwelcome concurrences The vote at conference after argu­ furter and and a switch of vote by ment was 6-3 to affirm, with Burton, to the and Rutledge in dissent. Vinson assigned the 5-4 opinion to Reed. Reed's draft majority opinion found no Burton circulated an impassioned 56 JOURNAL OF SUPREME COURT HISTORY unusual both for its depth of feeling and for case. In a dissent in one of the wartime con­ the fact that its author usually voted to sustain scientious objector cases, he had written: the government in criminal-procedure "The law knows no finer hour than when it appeals. He argued that a re-execution would cuts through formal concepts and transitory constitute cruel and unusual punishment, emotions to protect unpopular citizens thereby implicitly assuming the incorporation against discrimination and persecution," an issue. 16 On this point, he stressed the mental apt statement of his judicial outlook. IS He anguish that Francis had faced, and would elaborated that view in his di ssent in a face again. He also found an equal-protection right-to-counsel case decided while the COU!1 violation based, not on the wretched state of was considering Francis: criminal justice extended to African Ameri­ cans in the southern states at the time, but on Legal technicalities doubtless afford the fact that Francis would be treated differ­ justification for our pretense of ig­ ently from other men sentenced to death, who noring plain facts before us, facts went to the electric chair only once. 17 upon which a man's very life or lib­ Murphy and Rutledge joined Burton, erty conceivably could depend ... each writing to stress, as Murphy put it, that But the result certainly does not en­ a judge must take his "humanitarian in­ hance the high traditions of the judi­ stincts" into account in resolving the ques­ cial process. In my view, when un­ tions that Francis's case presented. Murphy di sputed facts appear in the record had committed himself to such an approach before us in a case involving a man's several years earlier, spurning formalistic ap­ life or liberty, they should not be ig­ proaches in order to do justice in a particular nored if justice demands their use.

... " f , , ~ , , , ~ "1~ , .

~ .~ /,' ~ " ••

..~- When the Supreme Court heard Francis's case, Chief Justice Fred M. Vinson (center) had just been appointed and the Court was fractured over the issue of incorporation. On one side, Justice Hugo L. Black (second from left, seated) championed a literalist and absolutist approach to interpreting the text of the Constitution. On the other, Justice Felix Frankfurter (seated at left) urged a rigorous form of judicial self·restraint with defer­ ence to the judgments of legislative bodies and to the will of the people. THE WILLIE FRANCIS CASE 57

apart from our own consciences .... Our deci­ sion must necessarily be based on our mosaic beliefs, our experiences, our backgrounds and the degree of our faith in the dignity of the human personality."20 Rutledge adopted a similar position. Burton persuaded both men to shelve their drafts and join him, along with Douglas, in a unified front. Their views di­ rectly challenged the core of Frankfurter's be­ liefs, which was certain to set him off. Jackson's concurrence eroded Reed's majority, for he explicitly repudiated Reed's "national standards of decency" criterion. In his distinctive prose, he denied that the Framers "ever intended to nationalize de­ cency."21 Instead, Jackson relegated the de­ cency test to "Louisiana's own law and sense of decency." Jackson also emphatically re­ jected the MurphyfRutledge reliance on a judge's personal feelings. Yet, perversely, he condemned the death penalty per se-an odd position for one who had been earnestly trying to hang Nazis just a year earlier. However, whatever the shortcomings of hi s position may have been, Jackson had at least enunci­ ated a clear standard, something Frankfurter failed to do. Jackson's draft concurrence aptly ex­ posed the incoherence of the Palko stan­ dards-of-decency test: Justice Stanley Reed's majority opinion in Francis found no due process violations as measured by [Reed] arrives at a conclusion which "national standards of decency." permits what to another is "repug­ nant to a civilized sense of justice," "inhuman and barbarous" and vio­ Here the facts in question ... empha­ lates the "first principles of humani­ size the absence of an intelligent tarianism." A third proposes "ele­ waiver of counsel and petitioner's mentary standards of decency" failure to comprehend the legal prob­ which brings him to a result exactly lems placed in his path. They serve opposite the one reached by those to make any decision on the issue in who use as [a] guide " national stan­ the case more intell igent and more dards of decency." A fourth identi­ just. 19 fies " national standards of decency" In that frame of mind, Murphy con­ with " mystic natural law" and rejects fronted the formalism of Reed's disposition of the whole philosophy, but still comes Willie Francis's case: "[W]e have nothing to out with the same result as those who guide us in defining what is cruel and unusual use it. 58 JOURNAL OF SUPREME COURT HISTORY

Justices Frank Murphy (left) and Wiley Rutledge (right) joined Justice Harold Burton's impassioned dissent in Francis. Burton (below) argued that a re-execution would constitute cruel and unusual punishment and would violate equal protection principles because Francis would be treated differently from other men sentenced to death, who went to the electric chair only once. Murphy and Rutledge had originally drafted dissents that did not squarely challenge the majority's incorporation doctrine but were persuaded by Burton to join him in opposing the formalism of Reed's opinion.

As if all these conflicting views were not complication enough, Black drafted a concur­ rence22 in which he argued for incorporation of the Fifth Amendment's double-jeopardy and Eighth Amendment's cruel-and-unusual-pun­ ishment provisions by the Fourteenth Amend­ ment, condemning "a mystic natural law which is above and beyond the Constitution, and which is read into the due process clause so as to authorize us to strike down every state law which we think is 'indecent,' 'contrary to civi­ lized standards,' or offensive to our notions of 'fundamental justice.'"23 In the internal dynamics of the Court, Frankfurter now became pivotal. It was "not [an] easy case," he declared at Conference24 He resolved it for himself on the basis of a statement he attributed to Oliver Wendell a defensible thing for the state to do, [but] it is Holmes, Jr., who "used [to express the rela­ not so offensive as to make him puke--does tionship between the Supreme Court and the not shock conscience."26 He reminisced in States] by saying that he would not strike after years that the Francis case "told on my down State action unless the action of the conscience a good deal. .. . I was very much State made him 'puke' ."25 T he retry "is hardly bothered by the problem, it offended my per­ WILLIE FRANCIS CASE 59 sonal sense of to do this. whole. This was one way in which the law had inside of me was very unhappy, but I did not traditionally to achieve 111 see that it violated due process oflaw."27 How judging, but it avoided odd that Frankfurter could not see that a legaJ other issues in the case that had been filtered norm based on nothing more than an individ­ out the successive cascades. ual jurist's nausea did not rise to the dignity of in Willie Francis's case, it enabled Frank­ anything that we would consider law. furter to avoid having to come to terms with In his note to Frankflll1er did not his own held conviction that it try to dissuade the dissenter; on the contrary, would be wrong to electrocute him a second he commended him for his position. time. This him to explain his own position, Having reached a resolution that satisfied though, and he did so at his judicial Frankfurter then turned to formal doctrinal analysis. The due I have to hold on to myself not to process criterion was to be "the pre­ reach your result. I am vailing standards of fairness and " de­ from so only by the disci­ fined as the standards of the state, rather than thinking of a lifetime regard- the nation or the locale of the trial (the rural the duty of this Court in putting of St. Martin in the Cajun country of limitations upon the power of a State southern To this he a under the limitations implied the reasonable-man test: Due Process Clause,28 struggling with He insisted that the Justices must exercise ju­ do think the Governor of Louisiana dicial self-restraint and defer to the judgment ought not to let Francis go of the state. Frankfurter narrowed this to the ordeal cannot say that the matter of """.v,", '", the state supreme reasonable men could not in calm court's construction of the Louisiana statute: conscience believe the State has such "for such, and such alone, in view of the rela­ a power. And when I have that much tion of the United States to States, and of this doubt I must, according to my view Court to State courts, is the exact legal situa­ of the Court's the State the tion before us. "29 Louisiana benefit of the doubt and let the State Court had implicitly construed the state elec­ action trocution statute as not prohibiting a If Frankfurter's view had been correct, In a note to declining his then his position would have been unassail­ overture to join the dissenters, Frankfurter re­ for one of the Court's oldest and most re- stated his basic position: "I cannot bring my­ canons of holds that the self to think that if I were to hold there was [a Supreme Court must accept a state supreme violation of due process standards], I would court's of a state statute as au­ not be enforcing my own private view rather thoritative.)1 Frankfurter's move was a than the allowable consensus of opinion of the men of long-sanctioned which, for purposes of due pro­ a kind that had been at the core of common cess, expresses the Constitution."33 law pleading: a and complex whole of Frankfurter thus defined the two funda­ law and fact was reduced mental elements of his view of cascades or gates to a view he held consistently law, defined as narrowly and Iy as "u'nr,'", years of service on the Court. Then the resolution of that small a judge must determine whether a po­ would be of the case as a tential impact of the law's application would 60 JOURNAL OF SUPREME COURT HISTORY

Justice Felix Frankfurter cast a pivotal vote to uphold louisi­ ana's right to re-execute Francis. The case made him "very unhappy" and he wrote to Burton that he was prevented from dissenting "only by the disciplined thinking of a life­ time regarding the duty of the Court in putting limitations on the power of a State under the limitations implied by the Due Process Clause." offend the "prevailing standards ofjustice and Had he troubled himself to inquire just fairness." Only if it clearly did could a judge what the actual community consensus in the strike down the state's act. Second, a judge Francis case really was (as opposed to specu­ must not impose hi s "own private view" of lating about what it might be, which is what what fairness and justice might be, for to do so he did), Frankfurter would have di scovered would be to repeat the error of the Lochner that Governor Jimmie Davis (the former Court. country-western singer and composer of "You There were at least two major problems Are My Sunshine") had been "deluged with with this position, although Frankfurter did an unprecedented flood of mail. ... Thou­ not acknowledge or even recognize either of sands of letters, telegrams and postcards them.34 First, hi s standard of community con­ poured in f!"Om [all parts of the United States] sensus about fairness and justice was hope­ urging clemency for Willie Francis."35 Reed lessly subjective. Frankfurter never suggested received impassioned pleas from around th e how a judge determines what these commu­ nation urging that Francis's life be spared36 nity standards are, or how such a determina­ Similarly, editorials in the nation's press, re­ tion could ever be disciplined, not to say ob­ acting first to Louisiana's determination to jective. Where was a judge to look for re-electrocute Francis and then to the Court's persuasive or even plausible evidence of what decision upholding the state ' s decision, were these standards were? Frankfurter would have largely (but not entirely) negative37 been the first to condemn judging by refer­ Frankfurter had an answer to this chal­ ence to public opinion polls. lenge, wh ich he had undoubtedly confronted THE WILLIE FRANCIS CASE 61

Governor Jimmie Davis (left), a former country-western singer, was unmoved by Frankfurter's secret campaign to save Francis by executive clemency. The Justice had exhorted Monte Lemann, his former Harvard Law School roommate and a member of the Louisiana bar, to use his influence on Davis to get the sentence commuted.

in the privacy of his conscience countless had no right to find a violation of the Due Pro­ times. He laid out his personal struggles in a cess Clause."39 Perversely, however, an actual letter to his friend and confidant, Learned inquiry into community belief was improper Hand: for ajudge to undertake, in Frankfurter'S eyes. How, then, could the utter subjectivity of his To what extent maya judge assume standard, which mocked all pretensions to ob­ that his own notions of right moral jectivity, have eluded Frankfurter? standards are those of the commu­ The answer is to be found in the second nity(?] But if it is his job-as you flaw of his position. The self-discipline with and I believe it to be-to divine what which Frankfurter credited himself diverted may rightly be deemed the standards his attention both from the subjectivity prob­ of the community, by what process is lem and from nearly all issues of law, fact, and he to make that divination[?] How conscience posed by the case before him. His and where should he look for the determination to stifle his own moral sense in disclosure of the community' s the act of judging made it impossible for him mores(?J38 to acknowledge that his own instincts might He found no answer, though, at least none that be congruent with the community'S moral he shared with Hand or the rest of the world. sense, and that he should follow them. By Repeating that he thought Louisiana's conduct reining in his moral impulses, Frankfurter dis­ "shocking," and "a barbaric thing to do, that abled himself from recognizing what the real would not be the feeling of the community community sentiment was, and forced himself whether the community be Louisiana or the to substitute some imagined, synthetic com­ United States at large- and that, therefore, I munity view. 62 JOURNAL OF SUPREME COURT HISTORY

This was for him, deliberately or not, a recent Court. So when FrankfUiter failed, he strategy first of avoidance and then of self-jus­ was not alone. And yet, and yet. .. Did still tification. The claim of self-transcendence another victim have to be sacrificed to the would serve Frankfurter's judicial philosophy Moloch of White Supremacy and bloodlust well in the years to come, masking his reliance that ruled the crossroads of race and the death on his own personal feelings with his claim to penalty in southern legal culture? Frankfurter a detached, disciplined impersonality as sanc­ exonerated himself at a terrible price. timonious as it was spurious. A critic might Spotting weaknesses in Reed's opinion say that Frankfurter's suppression of his per­ for the majority, Frankfurter urged several sonal feelings was a disingenuous way for him changes, and Reed complied. Frankfurter was to salve his conscience and yet retain the gratified: "I am confident HISTORY will ap­ power to impose his own subjective policy prove of them," he scribbled on Reed's preferences, basking in his own denial. Or, in printed draft.42 But if History approved, the words of such a critic, Frankfurter's posi­ Frankfurter did not.43 To Reed's dismay, he tion "coJ1apses, on analysis, into little more circulated a concurrence, which when pub­ than a front for policy making."4o In the end, lished would deprive Reed's opinion of ma­ sadly, Frankfurter succumbed to the formal­ jority status. ism that he had previously condemned in Jus­ Frankfurter's draft concurrence began tices Sutherland, Butler, McReynolds, and with a tortured and unpersuasive attempt to Van Devanter. show that though Reed had relied on "national Frankfurter futilely demanded that Reed standards of decency," he really meant what add the following passage to the majority Jackson adopted in his draft concurrence: opinion: "We have not before us a situation state standards of decency.44 (This effort was where officers of the State acted with malevo­ preposterous, and Frankfurter dropped it in lence or caLlousness or carelessness toward his published concurrence.) More to the point, human life. Nothing in the record remotely Frankfurter set forth at length hi s views of the warrants such imputation."41 In a strained and Due Process Clause, incorporation, and the technical sense, that was literally correct: Court's role. In doing so, he both doomed nothing in the record su pported that conclu­ Willie Francis and provoked Black to the con­ sion. However, had Frankfurter cared to go frontation that played out in Adamson. In this beyond the record (something impossible for sense, Francis v. Resweber was a dress re­ him to do, given hi s rigid view of the judge's hearsal for the jurisprudential confrontation function), he would have di scovered super­ that was to come in the ensuing year. abundant malevolence, callousness, and indif­ Troubled both by the power of BUiton's ference. di ssent and the fact that it spoke for four Jus­ Yet if Frankfurter's refusal to allow any tices, Frankfurter announced that he would scope to his own feelings seems mi sguided or identify "the criteria by which the State's duty worse in retrospect, it nevertheless consti­ of obedience to the Constitution must be tuted his earnest effort to resolve the objectiv­ judged" under the Due Process Clause of the ity problem that has bedeviled the modern Fourteenth Amendment- the majority obvi­ Court, especially since 1937. The landscape ously having failed to do SO.45 Invoking of the twentieth-century Court is littered with Twining, Hebert, Snyder, and Palko (which Justices' failed efforts to devise credible re­ by that time had become for him the control­ sponses to that dilemma: the dogmas of clas­ ling litany), Frankfurter reaffirmed due pro­ sical legal thought, Black's literalist funda­ cess as "the meaning of the struggle for free­ menta li sm, the variant originalisms of the dom of English-speaking peoples [that THE WILLIE fRANCIS CASE 63

incorporates1advances in the of allowed, in the precise circum­ justice and freedom stances before us, to carry out the In that were Black, death sentence, I would be Frankfurter condemned the idea that the Four­ my view rather than that con­ teenth Amendment the Bill of sensus of opinion which, for pur­ Rather, it withdrew "from the States poses of due process, is enjoined by the right to act in ways that are offensive to a the Constitution.46 decent respect for the dignity of man, and heedless of his freedom." He conceded that In that passage, Frankfurter laid "these are very broad terms role. He adhered to commodate freedom and it in till his death. admitted that this "'involves the application of Circulated in this concurrence an­ standards of fairness and justice very noyed Reed, who thought that he had conceived." he insisted, are gone far to accommodate Frankfurter's cease­ not the application of merely stan­ less only to find that Frankfurter dards but the impersonal standards of society was to desert him anyway. Matters only which alone judges, as the organs of Law, are got worse as Burton, Murphy, and to enforce." circulated their draft and Jackson his Bringing these criteria to focus on the concurrence. When provoked case before him, he concluded: Frankfurter' red flag to his bull, circulated his draft concurrence, Reed found himself in I cannot bring myself to believe that the and absurd of having for Louisiana to leave to executive the Chief Justice agree with what had rather than to require, mit­ once been his opinion, while the igation of a sentence of death duly other seven members of the Court insisted that pronounced upon conviction for it was wrong, five of them its inade­ murder because a first attempt to at in written While carry it out was an innocent misad­ Willie Francis languished on what was bayou venture, offends a ofjustice Louisiana's equivalent of death row, his case "rooted in the traditions and con­ was becoming an obscene parody of the ap­ science of our people." [citations pellate process. Short of the compulsion of Black rose to the bait of Frankfurter's such a this Court must ab­ circulating a concurrence that stain from interference with State ac­ insisted that the Due Process Clause of the tion no matter how one's per­ Fourteenth Amendment had made the Fifth sonal feeling of revulsion against a Amendment's double and the State's insistence on its pound of Amendment's cruel and unusual pun­ flesh. One must be on guard ishment applicable to the states. np,ronn"1 disapproval rooted He concluded, though, that the would in mOre or less universal condemna­ constitute neither. He dismissed Frankfurter's tion. Strongly drawn as I am to some as resting on "a of the sentiments by my and as being incurably brother I cannot rid of the conviction that were I to hold Conduct believed "decent" mil­ that Louisiana would transgress the lions of may be believed "in_ Due Process Clause if the State were decent" by millions of others. Adop­ 64 JOURNAL OF SUPREME COURT HISTORY

tion of one or the other conflicting mand for civilized standards of life which are views as to what is "decent," what is not defined by the specifically enumerated right, and what is best for the people, guarantees of the Bill of Rights." It and its is generally recognized as a legisla­ companion, the Equal Protection Clause, tive function. Our courts move, I "summarize the meaning of the struggle for think, in forbidden territory when freedom of English-speaking peoples." In a they prescribe their "standards of de­ gesture that was equal parts pique and princi­ cency" as the supreme rule of the pled disagreement, he explicitly refused to people. join the Reed opinion, thereby reducing it to the status of a plurality.49 Black condemned both the "standards of de­ Reed announced the judgment of the cency" and "fundamental principles" criteria Court on January 13, 1947, dooming Francis as based on "the unarticulated assumption that to a second trip to the electric chair. Frank­ the Due Process Clause adopted the natural furter then undertook an unprecedented secret law concept that there is a higher law than the campaign to persuade Governor Davis to save Constitution . . . " To honor such standards Francis by executive clemency. Recognizing would result in leaving courts "free to su bsti­ that the hint in his opinion might not be suffi­ tute their ideas of natural justice for the con­ cient to prod the conscience of Louisiana and sidered policies of state and fed eral legisla­ its governor, Frankfurter wrote a former class­ tures."47 mate and roommate at the Harvard Law Having been let down by Frankfurter, School, Monte Lemann, a member of the Lou­ Reed sought to recoup his majority or what­ isiana bar, exhorting him to use his influence ever part of it he could salvage, by inveigling on Davis to get the sentence commuted.50 B lack to abandon his concurrence. This he ac­ Lemann willingly complied, but to no effect. complished by agreeing to drop the national Frankfurter circulated a copy of Lemann 's let­ standards idea, and to water down other ex­ ter explaining his actions among the Brethren, pressions in his draft that Black found objec­ but did not tell any of them except Burton that tionable. He also made a verbal concession to he had instigated it. The State of Louisiana Black's position, stating that the Court would again electrocuted Willie Francis, this time ef­ "assum[e,] but without so deciding, that viola­ fectively, on May 9,1947. For him, the trav­ tion of the principles of the Fifth and Eighth esty of reason in judicial decision making had Amendments, as to double jeopardy and cruel come to an end, but the Justices were not yet and unusual punishment, would be violative done with the questions that hi s fate had of the due process clause of the Fourteenth placed before them so poignantly. Amendment."48 That bought off Black, but The Supreme Court bungled Willie Fran­ alienated Frankfurter, though the miffed Reed cis's appeal as badly as the drunken execu­ no longer cared. tioners had bungled the first electrocution try. Now it was Frankfurter' s turn to be upset The resultant mischief lingers. Later courts re­ about Reed's concession to Black's hatching currently cite Francis v. Resweber, along with heresy. He circulated a memorandum to the In re Kemmler,51 as authority for the proposi­ Brethren complaining that "it makes for noth­ tion that the Eighth Amendment does not bar ing but confusion in the consideration of con­ death by electrocution, shutting their eyes to stitutional issues under the Due Process mounds of empirical and graphic data demon­ Clause to cite cases" construing the double strating beyond any doubt that, far from being jeopardy clause. "The Due Process Clause of "instantaneous and painless," as numerous the Fourteenth Amendment expresses a de­ judges have termed it, death by electrocution THE WILLIE FRANCIS CASE 65

is horrifyingly violent, prolonged, and pain­ 19Carler v. Illinois, 329 U.S. 173, 183 ( 1946) (Murphy ful. 52 Though no opinion in Francis addressed dissenting). 20M urphy draft dissent, 13 Dec. 1946. quoted in J. Wood­ that issue, the case Jives on, misapplied to per­ ford Howard , Jr., Mr. Justice Murphy: A Political Bi­ petuate state torture. ography ( 1968), 439. 21J ackson draft concurrence, marked "Corrected" ~nd "Circ ul ated 12/20/46," Dec. 1946, Jackson Papers, box 138, LCMss. The last quoted sentence in the ensuing para­ ENDNOTES graph is handwritten; the remainder is in the printed galley. 22 Bl ack typewritten draft concurrence, in Fred M. Vinson 'William M. Wiecek, The Lost World of Classical Papers, box 233, UKy . Legal Thought: Law and Ideology in America, 23 lbid. 1886-1937( 1998). 24Douglas conference notes. Willi~m O. Douglas Papers, 2J98 U.S. 45 ( 1905). box 140, LCMss. 32 11 U.S. 78 ( 1908). 25 Fr~nkfurter to Burton, 13 Dec. 1946, in Harold H. Bur­ 4302 U.S. 3 J 9, 325 (1937) (quoting Snyder v. Massachu­ ton P~pers, box 171 , LCMss. seilS, 29 1 U.S. 97 [1934J ~nd Hebert v. Louisiana, 272 26 Douglas conference notes, William O. Douglas P~pers, US. 312 [1926]). box 140, LCMss. 5lbid. 27Philip Elman, ed. , Of Law and Men ( 1956),98. 6lbid. 2RF rankfurter to Burton, 13 Dec. 1946, in Harold Burton 7332 U.S. 46 ( 1947). Papers, box 171 , LCMss. 8329 U.S. 459 (J947). 29 lbid. 9His namc was mi sspelled in the official reports of his 3UState ex rei. Fran cis v. Resweber, 212 La. 143,3 1 So.2d case, Palko v. Connecticut. 697 ( 1947) (per curiam). IUArthur S. Miller a nd Jeffrey H. Bowman, Death by In­ 31Murdock v. Memphis, 20 Wall. (87 U.S. ) 590 ( 1875). stallments: The Ordeal of Willie Francis ( 1988); See William M. Wiecek, " Murdoc k v. Memphis: Section Barrell Prettyman, .Ir., Death and the Supreme Court 25 of the 1789 Judiciary Act and Judic ial Federalism," in ( 1961 ),90-128. M~eva Marcus, ed., Origins of the Federal Judiciar)':

II Miller and Bowman, Death by Installments, 132-33. Essays on the Judiciary Act of 1789 ( 1992),223, and 12The votes are recorded in Justice Douglas's conference cases discussed in Charles A. Wright et ai., Federal notes, William O . Doug las Papers, box 140, Manuscripts Practice and Procedure ( 1996). vol. 16B, Jurisdiction, Division, Library of Congress (hereafter cited: LCMss), § 4021, pp. 307-11. and the result noted in Louisiana ex reI. Francis v. 32Frankfurter to Burton. 13 Dec. 1946, H ~ rold H. Burton Resweber, 328 U.S. 833 ( 1946). In a full bench. four Papers, box 17 I , LCMss. votes would be sufficient to grant Ce rtiorari. With onl y 33 Frankfurter to Burton . 3 1 Dec. 1946, Harold H. Burton seven Justices sitting, that number wa s reduced to three. Papers, box 17 1, LCMss. See Miller and Bowman, Death b)' Installments, ISS fn. 34 For an extended contemporary nitique of Frankfurte r's 53. standards. see George D. Braden, "The Search for Objec­ 13Reply and Supplemental Brief for Peti ti oner, in Harold tivity in Constitutional Law," 57 Yale L. .I. 571 , 582-89 H. Burton Papers, box 171 , LCMss. ( 1948). "Reed printed draft opini on dated Dec. 1946, Stanl ey 35 New Orleans Times-Picaywle, 12 May 1946, section 2, Reed Papers, box 100, University of Kentucky ( here~fter p.9. cited: UKy). 36Collected in box 100, Stanley Reed Papers, UKy. 15Douglas handwritten note to Reed, 20 Dec. 1946, Reed 37 Press reaction is surveyed in Mi ller and Bowman, P~p ers, box 100, UKy. Death by Installments. 117- 19. 16 Burton draft d issent, Dec. _ 1946, Harold H. Burton 3R Frankfurter to H~nd , 6 Dec. 1947, Fel ix Fr ~ nk furter Pa­ Papers, box 171, LCM ss. pers, reel 39, LCMss. 17 Th is point was originally suggested to Burton by his 39 /bid. clerk. Harri s K. Weston. though Weston denied that dif­ 4D Braden, "Search for Objectivity," 593-594. Braden lev­ ferent ia l treatment in thi s case deprived Francis of equal eled the same criticism at Justice Black's literalism. protection. Undated note in Harold H. Burton Papers, box .I Frankfurter to Reed, 14 Dec. 1946, Reed Papers, box 171 , LCMss. 100, UKy. l8Faibo v. United States, 320 U.S. 549, 56 1 ( 1944) 42 Frankfurter to Reed . 12 Dec. 1946. Reed Papers, box (Murphy dissenting). 100, UKy. 66 JOURNAL OF SUPREME COURT HISTORY

43 Frankfurter, " Memorandum for the Conference," I I Papers, box 287, LCM ss. This ci tation covers a ll quotes Jan. 1947, Reed Papers, box 100, UKy. in the preceding paragraph. ""Frankfurter draft concurrence, marked "Circu lated Jan. 48329 U.S. at 462. 2 1947," Jan. _,1947, in Harold H. Burton Papers, box 49Memorandum for the conference, II Jan. 1947, in Reed 171 , LCMss. Papers, box 100, UKy. 4'329 U.S. 459, 466 ( 1947) (Frankfurter concurring). 50 Miller and Bowman discuss the Lemann overture in This cita tion covers a ll quotes in the following para­ Death by Installments, 124--28. graph. 51 136 U.S. 436 ( 1890) 46 Frank furter published dissent , 329 U.S. 470--71. 52 Lonny J. Hoffman, "The Madness of the Method: The 47 Black draft concurrence, Jan ._ 1947, in Hugo L. Black Use of Electrocution and the Death Penalty," 70 Tex. L. Rev. 1039 (1992) Women Advocates Before the Supreme Court

CLARE CUSHMAN

Legend has it that when Dolley Madison and a group of the First Lady's friends arrived one day at the Supreme Court in the middle of an oral argument, the great advocate Daniel Webster stopped his oration, bowed to the ladies, and started again from the beginning. Although such excessive gallantry was not standard practice in the early nineteenth century, it was customary for wives of Washington dignitaries to dress up in the latest fashions and come to the Supreme Court to observe oral arguments. The passive, decorative role women then other attorneys, and to argue cases before the played in the life of the Court contrasts Bench. sharply with the professional one they play Before examining the contributions of today. This gradual transformation did not the women advocates who followed in Lock­ begin until 1880, ninety-one years after the wood's footsteps, however, it is appropriate Court's inception, when a woman was finaJJy to consider claims that two earlier women, permitted to leave the spectator ranks and join Lucy Terry Prince and Myra Clark Gaines­ the show. That was the year that Belva A. neither of whom were lawyers-personally Lockwood became the first female attorney to pleaded their own land dispute cases before argue a case before the Supreme Court. I The the Supreme Court. No official documents previous year she had forced the Court, have been discovered to support these through congressional intervention, to license claims. women to practice before it. 2 It had not been an easy task.] Lockwood's admission opened Lucy Terry Prince (c. 1725-1821) the doors for successive women attorneys to file petitions and briefs at the Supreme Court, Lucy Terry Prince, an African-American, is to join its bar and to move the admission of usually hailed in reference books as the first 68 JOURNAL OF SUPREME COURT HISTORY

No official record has been found documenting the alleged oral argument of Lucy Terry Prince, a freed slave, before Justice Samuel Chase in 1796. This oil portrait of Prince, one of the first published African-America n poets , is purely imaginary; no likeness of her exists. WOMEN ADVOCATES BEFORE THE SUPREME COURT 69 woman to address the Supreme Court of the United States," but there is no evidence to United States. The popularizer of this legend suggest that she made the trip to Philadelphia is Massachusetts historian George Sheldon, (where the Court was then lodged) to do so. who described the event in his 1893 article Sheldon based his assumption on a letter writ­ "Negro Slavery in Old Deerfield," which was ten by a Guilford historian named Rodney published in New England Magazine and Field-who was neither an eyewitness to the widely circulated. He wrote that Prince was event nor a contemporary of the Princes-that permitted to argue her Vermont land claim simply stated that she appeared before a suit in 1796 before the "Supreme Court of the "United States Court."7 United States ... presided over by [Justice] A more likely scenario, given Chase's fa­ Samuel Chase of Maryland." Apparently, vorabJe comparison of Prince to other Ver­ Chase was so impressed by Prince's elo­ mont lawyers, would be that she argued be­ quence that he complimented her on making fore Justice Chase when he was riding circuit "a better argument than he had heard from any in Vermont. (In those days, circuit courts were lawyer at the Vermont bar."4 presided over by one Supreme Court Justice Her performance would have been all the and one district court judge). Justice Chase more extraordinary considering her back­ did sit at one session of court in Vermont ground. She was taken from Africa as a child while on circuit, at Bennington in May 1796, in 1730 and eventually sold to a Deerfield, which coincides with the time at which the lit­ MA, innkeeper named Ebenezer Wells. She igation would have taken place8 However, purchased her freedom in 1756 after her mar­ the court records show no cases with which riage to Abijah Prince, a free black. In 1762, a Prince or Bronson were associated. Perhaps wealthy Deerfield landowner deeded Abijah Lucy Terry Prince was a principal or a witness Prince 100 acres of land in the newly opened in a federal district court or the state superior territory of Guilford, VT. The Princes and or supreme court. their six children took up residence there in There is no doubt that Prince, an eloquent the 1780s. Hungry for land, they had also ob­ storyteller renowned for her keen memory, tained a grant of 300 acres of wilderness tract must have been an effective oral advocate be­ in nearby Sunderland. fore whatever court she did appear. In fact, The predatory behavior of a wealthy she merits a place in history whether or not Sunderland neighbor, Colonel Eli Bronson, she argued before Justice Chase. Her lyrical was the basis for the legendary suit. He set up thirty-line doggerel, "The Bars Fight," which a claim to the Princes' property and, accord­ accurately recounts the dramatic events sur­ ing to nineteenth-century Sunderland histo­ rounding an Indian raid on Deelfield that she rian Giles B. Bacon, "by repeated law suits witnessed in 1746, was printed posthumously obtained about one-half of the home lot, and in 1855. This accomplishment distinguishes had not the town interposed [the Princes] her as one of the first published Afri­ would have lost the whole."5 A prominent cit- can-American poets.9 Bronson allegedly hired Royall Tyler, a future chief justice of the Vermont Supreme Myra Clark Gaines (1803-1885) Court, and Stephen R. Bradley, a future Ver­ mont senator, as his counsel. The Princes The other woman mistakenly reported to were said to have engaged Isaac Tichenor, a have pleaded her land claim case before the future governor of the state, to defend their Supreme Court is perpetual litigant Myra c1aim. 6 Clark Gaines. The gallant orator Daniel In his article, Sheldon wrote that Prince Webster is alleged to have been the opposing argued before "the Supreme Court of the advocate. 10 70 JOURNAL OF SUPREME COURT HISTORY

The land dispute case of Myra Clark Gaines, involving her claim to valuable New Orleans property, came before some thirty different Justices, who issued thirteen separate rulings. WOMEN ADVOCATES BEFORE THE SUPREME COURT 71

This myth probably arose because Gaines Pioneers of the Bar and her heirs filed an astonishing twenty-one motions before the Court between 1836 and Belva Lockwood thus remains unchallenged 1891. 11 Some thirty different Justices heard as the first woman either to file a brief or pres­ the case, issuing thirteen decisions. 12 Passion­ ent oral argument at the Supreme Court. Sub­ ate and dogged in her pursuit of her inheri­ sequent female advocates also qualified as pi­ tance claim to valuable New Orleans proper­ oneers in various ways. ties, Gaines was wealthy and shrewd enough Opposing the proposed sale by Congress to engage th e most seasoned oral advocates to of her tribe's sacred burial ground in Kansas argue on her behalf. 13 Over a period of five City, KS , Lyda Burton Conley (1874-1946), decades she employed more than thirty law­ of Wyandotte and Engli sh ancestry, became yers, seventeen of whom died in her service. in 1910 the first Native American woman to There is no evidence, however, that she ever argue before the Supreme Court. (The first pleaded her own case against Daniel Webster Native American was probably Elias C. or any other advocate. (In fac t, Webster was Boudinot, a Cherokee, in 1871 .) Along with one of the advocates she retained in her ser­ her sisters He lena and Ida, Conley protested vice.) However, she did present her own argu­ Congress's proposal in 1906 to transfer the ment in a state court trial, stepping in after her bodies and sell off the Huron Cemetery, counsel, infuriated by the judge's bias, which would have violated the government's sto rmed out. Gaines was also active in helping treaty with her tribe. The Conley sisters pad­ her lawyers prepare briefs. locked themselves in the cemetery, built a for­ At issue was the mysterious disappear­ tified shack to dwell in, and fended off gov­ ance of a will drafted by her Irish immigrant ernment officials and realtors (but not other father, Daniel Cl ark, when he died in 1813. In Wyandottes) with their father's shotg un for the will, Cl ark named Myra his legitimate seven years. 14 daughter and heir to the large fortune he had Conley had long realized the value of the accumulated . Her Creole mother, Zulime coveted piece of real estate where her parents Carriere, held no record of her marriage to and a sister were buried, and had equipped Clark, which they had kept secret because she herself with a law degree from Kansas City had not obtained an annulment from her first School of Law in 1902 to defend it by peace­ husband , a French wine merchant and biga­ ful means. She unsuccessfull y fi led su it for a mist. Upon Clark' s death the will di sap­ permanent injunction in district court again st peared, and hi s sisters and business partners the Secretary of the Interior. After losing an claimed th at Myra was illegitimate and there­ appeal, she left her sisters to hold the fort in fore ine li gible to inherit from her father under )909 wh i Ie she traveled to Wash i ngton to Louisiana's unique civil code. Because hun­ argue the case before the Supreme Court. dreds of New Orleans residents stood to lose Conley argued pro se; she did not become a their land if she won her cl aim, she was forced member of the Supreme Court bar until to resort constantly to federal courts to obtain 1915. 15 A draft of the argument she delivered the fair tri al that hostile local courts did not al­ at the Court, written in her own hand, reveals ways provide. The Supreme Court held that that she used biblical imagery to enhance her Myra Cl ark Gaines was her father's legitimate plea. "Like Jacob of old I too, when I shall be heir shortly before she died in 1885, deeply in gathered unto my people, desire that they bury debt from a lifetime of legal expenses. It took me with my fathers in Huron Cemetery, the a few more lawsuits for her grandchildren to most sacred and hal.lowed spot on earth to force the city of New Orleans to pay them me," she wrote. "I cannot believe," she added, their due. "that this is superstitious reverence, any more 72 JOURNAL OF SUPREME COURT HISTORY

lumbia. 19 The first black woman to petition the Court pro se was Jama A. White, who con­ tested her expulsion from Portia Law School. She was expelled for neglecting to tell a coal and groceries dealer that she was separated from her husband and for refusing to pay for the merchandise herself once her marital sta­ tus was discovered. (She had billed her hus­ band's account despite their separation be­ cause a court had ordered her husband to pay her expenses.) The Massachusetts Supreme Court rejected White's claim against the law school, and, acting as her own attorney, she petitioned the U.S. Supreme Court unsuccess­ fully in 1933.20 It is not known which black woman law­ yer filed the first brief or argued the first case in the Supreme COUIt. (The first African­ American man to argue was probably Everett Lyda Burton Conley argued a case before the 1. Waring, in 1890.21) One strong possibility Supreme Court in 1910 demanding that the U.S. is Constance Baker Motley, who, as associate government honor a treaty with her tribe safe­ guarding its sacred burial ground, the Huron ceme­ counsel for the NAACP Legal Defense and tery in Kansas City, KS. Education Fund from 1945 to 1966, argued ten desegregation cases, winning nine. She helped prepare the briefs in the landmark than I can believe that the reverence every case of Brown v. Board of Education, which true American has for the grave of Washing­ found segregated schools unconstitutional. ton at Mount Vernon is a superstitious rever­ She also argued James Meredith's suit for ence."16 admission to the University of Mississippi In Conley v. Ballinger, Secretary of the and Charlayne Hunter-Gault's case that Interior (1910), the Court held that in making forced the University of Georgia to open its the treaty the United States had "bound itself doors to black students. Impressed with her only by honor, not by law" and that the oral arguments before the Supreme Court, Wyandotte tribe had no legal right to the cem­ Attorney General Ramsey Clark persuaded etery.17 However, the Conley sisters' tena­ President Lyndon B. Johnson to appoint cious defense of their ancestors' graves so Motley to be the first black woman federal swayed public opinion that Congress repealed judge in 1966.22 the sale, which had since been transacted. The The first women to argue against each three sisters were eventually buried in the other in the Supreme Court were Elizabeth R. Huron Cemetery, which is now a green oasis Rindskopf and Dorothy Toth Beasley, the at­ in downtown Kansas City, Kansas. 18 torneys in Paul 1. Bell, Jr. v. R. H Burson, Di­ The first female African-American law­ rector, Georgia Department of Public Safety yer to join the Supreme Court bar-Chicago (1971).23 Beasley, an assistant attorney gen­ Law School-trained Violette N. Ander­ eral of Georgia, opposed a woman advocate son--did so eleven years after Conley. Ander­ again two years later in Doe v. Bolton.24 Her son was admitted in 1926 on motion of James opponent, Margie Hames, representing abor­ A. Cobb, a black judge in the District of Co­ tion-seeker Mary Doe, prevailed, and the WOMEN ADVOCATES BEFORE THE SUPREME COURT 73

humor was met with stony silence.26 Hames found Floyd's comment "very chauvinistic," and she worried that Chief Justice Warren E. Burger "was going to come right off the bench at him." The Chief Justice "glared him down," remembers Hames. "[Floyd] got the point right away that this was not appropriate in court."2? There was no place for gallantry in the 1977 case of Smith v. Organization of Fosler Families for Equality & Reform, which marked the first time four women had collec­ tively argued one case. The counsel tables had never before been so "female" as when Louise Gruner Gans, Helen L. Buttenwieser, and Maria L. Marcus successfully represented in­ dividual foster families and an organization of foster parents in their suit for an injunction against New York City'S procedures for re­ moving foster children and attorney Marcia Robinson Lowry argued the city's case.28 As associate counsel for the NAACP Legal Defense and Education Fund, Inc. from 1945 to 1966, Con­ stance Baker Motley argued ten segregation cases Women of the Office of Solicitor before the Supreme Court. She was probably the first black woman attorney to argue a Supreme Court General case. The best source of women advocates has been the Office of the Solicitor General (OSG), the Court struck down a Georgia law that allowed elite corps that represents the United States in only residents of the state to obtain abortions. the Supreme Court. The OSG has supplied a "She didn't get it simply because she was fe­ steady trickle of women to argue the govern­ male," explained Attorney General Arthur ment's position since 1972, when Harriet Bolton as to why Beasley, the only female out Sturtevant Shapiro was hired as the first regu­ of a staff of some twenty-six deputies, was lar woman attorney. There was at least one given the task of defending Georgia's 1968 earlier in stance, however, of a woman on the abortion law.25 Beasley, who had briefly Solicitor General's staff appearing before the worked with Hames in private practice, was Supreme Court, although that episode seems simply considered the best advocate for the to be an exception: In 1949, Patricia Collins job. successfully argued Johnson v. Shaugh­ Doe was argued the same day as Roe v. nessy,29 an immigration case, when she was a Wade, its companion case. Jay Floyd, who de­ lawyer in the Office of the Assistant Solicitor fended the Texas anti-abortion statute in Roe, General, which was subsequently renamed argued against Sarah Weddington and her the Office of Legal Counsel. co-counsel Linda N. Coffee. "It's an old The reason Collins got this assignment is joke," chided Floyd when he began his Roe revealing. When Robert Ginnane, an associate presentation, "but when a man argues against in the OSG who had been assigned the case, two beautiful ladies like this, they are going to was called suddenly to France, Collins's hus­ have the last word." His misplaced attempt at band, Assistant Attorney General Sal 74 JOURNAL OF SUPREME COURT HISTORY

Andretta, prevailed on Solicitor General Schlesinger v. Ballard (1975) and Newport Philip Perlman to select his wife to step in and News Shipbuilding & Dry Dock Co. v. EEOC argue the government's case. Collins (now (1983 ).32 Her record puts her just ahead of Patricia Dwinnell Butler) recalls that the Mar­ Amy L. Wax, now a law professor, who ar­ shal of the Supreme Court complimented her gued fifteen cases for the government during on her performance: "with that [stentorian) her tenure at the OSG from 1987 to 1994. voice of yours, you can come back any time." They may both soon be overtaken by Assis­ However, Ju stice Felix Frankfurter's needling tant Solicitor General Beth S. Brinkmann, did not encourage her to request assignment who as of 1999 had argued thirteen cases for further oral arguments)O since joining the OSG in 1993.33 Twenty-three years after that episode, Several former OSG staffers continue to Shapiro joined the staff as an assistant solici­ specialize in appellate advocacy and to appear tor general and paved the way for other before the Supreme COUlt. Kathryn A. women attorneys at the OSG. In 1999, five Oberly, who argued ten cases in her four-year out of twenty lawyers on the staff were stint at the OSG from 1982 to 1986, special­ women.31 Now more than 70, Shapiro is a sea­ izes in representing accounting firms. In soned advocate who holds the record among 1989, she argued for Price Waterhouse in the women staffers for most arguments­ high-profile Supreme Court case brought by seventeen. In terms of gender law cases, Ann Hopkins, who successfully claimed she Shapiro argued the government's position in had been denied partnership because of her

When the assistant solicitor general assigned to an immigration case was unexpectedly called out of the country in 1949, Patricia H. Collins (now Patricia Dwinnell Butler, right) took over and successfully argued the government's case before the Supreme Court. Her husband, Assistant Attorney General Sal Andretta (second from left), had persuaded Solicitor General Phil Pearlman (left) to reassign her the case . Attorney General Tom C. Clark is standing between the Andrettas. WOMEN ADVOCATES BEFORE THE SUPREME COURT 75

In 1972, Harriet Sturtevant Shapiro (back row, second from left) became the first woman attorney to work at the Office of the Solicitor General (OSG), the elite corps that represents the United States before the Supreme Court. Pictured in this 1972 OSG staff photo: (back row) William Bradford Reynolds, Shapiro, Andrew Frey, Harry Sachse, Edward Korman, Mark Evans, Keith Jones, Allen Tuttle, and Ray Randolph; (front row) Sam Huntington, Philip Lacovara, Daniel Friedman, Solicitor General Erwin Griswold, Lawrence Wallace, and Richard Stone. Shapiro has since argued seventeen cases before the Supreme Court, more than any other woman from the OSG.

gender.34 Maureen E. Mahoney argued before appointed to the top job at the Justice Depart­ the Supreme Court eight times when she ment. served as a deputy solicitor general; she has returned to argue two more cases before the Most Appearances Before the Court Court since leaving the OSG in 1993 to join a law firm.35 Mahoney also argued one case be­ These contemporary women advocates do not fore the Court prior to joining the OSG, hav­ compare, in terms of numbers of cases argued, ing been invited by the Supreme Court with a handful of pioneers who worked as ap­ through a special appointment to present ar­ pellate lawyers for various branches of the fed­ gument.36 She was probably the first woman eral government.39 The earliest of these pro­ invited by the Court to appear as an advo­ fessional advocates was Mabel Walker cate.37 Willebrandt (1889-1963), who served as as­ There has yet to be a female solicitor gen­ sistant attorney general in the 1920s and prose­ eral, but the first female attorney general, cuted scores of violators of the National Prohi­ Janet Reno, has argued once before the Su­ bition Act.40 Because the Act was difficult to preme Court. In 1996, she chose to present the enforce, she spearheaded the use of tax laws to government's position, as amicus curiae, in prosecute iLlegal distributors of liquor. "Prohi­ Maryland v. Wilson,38 three years after being bition Portia," as she was nicknamed, argued 76 JOURNAL OF SUPREME COURT HISTORY

As an assistant attorney general during Prohibition, Mabel Walker Willebrandt spearheaded the use of tax laws to prosecute illegal distributors of liquor. She sub­ mitted 278 cases on certiorari to the Supreme Court during her career at the Department of Justice. twenty-two times before the Supreme Court, 1929. A brief they filed on May 13, 1929 all Prohibition- or tax-related cases, before re­ (along with Attorney General William D. signing from the Justice Department in 1929. 41 Mitchell and special assistant attorney general Willebrandt's servi ce at the Department Alfred A. Wheat) for the Commissioner of In­ of Justice overlapped for one year with that of ternal Revenue was likely the first instance of Helen R. Carloss (1890-1948), another fe­ two women's names appearing on the same male public servant who frequently repre­ Supreme Court brief44 sented the United States before the Supreme In his memoir, The Court Years, Court. CarJoss left her native Mississippi to 1939-1975, Justice William O. Douglas de­ attend law school at George Washington Uni­ scribed Carloss as "a gray-haired lady from versity and was then hired to handle tax litiga­ Mississippi ." "If seen by a stranger," he tion for the federal government. She earned mused, such an excellent reputation for her ability to collect taxes from delinquent payers that her she would doubtless be identified as opponents reportedly hired "the best men law­ a housewife. But she was an advo­ yers" to prepare their cases.42 As a litigator at cate par excellence-brief, lucid, the Internal Revenue Service from 1928 to relevant and powerful. Typical of the 1947, Carloss argued sixteen times43 before complex and important questions the Supreme Court and filed countless briefs, which she presented is Kirby Petro­ including several in tax cases that were jointly leum Co. v. Commissioner (326 U.S. prepared with Willebrandt (among others) in 599) concerning the right of the les­ WOMEN ADVOCATES BEFORE THE SUPREME COURT 77

sor of oil and gas land to the As Earl Warren said tion allowance where the lease is for her a cash and a share of flesh on the bare the net bones of the Fair Labor Standards Act and made it a viable statutory Another lawyer scheme.47 and dedicated servant, Bessie Margolin (1909-1 is best remembered for her tal­ The all-time women's record for argu- ent for oral argument. She joined the Depart­ Court to Beatrice ment of Labor shortly after passage of the a low-pro­ 1938 Fair Labor Standards Act and special­ file but brilliant attorney who, as ized in that New Deal law, which an authority on search and argued 4R spelled Ollt federal wage and hOllr policy. more than cases before the high court. Margolin rose to become assistant solicitor in (The men's record belongs of Court and then, to Deputy Solicitor General Lawrence G. 150 to associate solicitor more than for the Division of Fair Labor Standards. As she was for all litigation under the Fair Labor Standards the

Act. cases before the L>LI".IlIClUI.C The of Russian Jewish immi­ grants, was born in New York City, but was sent to a Jewish Children's Home in New Orleans after her mother died. She at­ tended Tulane University and graduated from its law school. She then pursued a doctorate in law at Yale Margolin started her career on the legal staff at the Ten­ nessee electricity to rural com­ munities. Justice remembered Margolin as in her speech and ",,,,pt·",,., her tual situations to

worrisome but important issues which she argued was Phillips Co. v. U.S. 490), that an exemption from the Fair Labor Standards Act of employees "en­ in any retail ... establish­ A brilliant attorney in the crimina I division of the Jus­ ment" does not include warehouse tice Department and an expert on the government's right to search and seizure, Beatrice Rosenberg and central office of an argued some thirty cases before the Supreme Court, interstate retail-chain-store a record for women advocates. 78 JOURNAL OF SUPREME COURT HISTORY butions to the art of advocacy before us than sive litigating strategy designed to end overt most of the 'big-name' lawyers."49 sex discrimination in the law. She argued six Born in Newark, NJ, Rosenberg was a times before the Court, losing only one case, high school classmate of William 1. Brennan, Kahn v. Shevin (1974). Initiated by an ACLU Jr. (She herself was repoltedly considered for affiliate in Florida, th at case had not been se­ a Supreme Court nomination by Richard M. lected to go before the Court by Ginsburg Nixon in 1971.) Rosenberg graduated from who, presciently, felt the timing was wrong. Wellesley College and New York University The cases Ginsburg argued or briefed Law School. She began her government ca­ read like a li st of landmarks in a gender law reer as a lawyer in the Justice Department's textbook: Reed v. Reed ( 197 1), Frontiero v. criminal division in 1943. When she left in Richardson (1973), Weinberger v. Wiesenfeld 1972, she had worked her way up to becoming ( 1975), Edwards v. Healy (1975), Turner v. chief of the Criminal Division's appellate sec­ Department of Employment Security (1975), tion . As an appellate lawyer, Rosenberg qui­ Califano v. Goldfarb (1977), and Duren v. etly earned accolades from her peers. In 1970, Missouri (1979).51 She also filed inlluential she became the first woman to win the Tom C. amicus curiae briefs in many other equal pro­ Clark Award, which is given by the District of tection cases, including the landmark Craig v. Columbia chapter of the Federal Bar Associa­ Boren (1976). Ginsburg went on to be ap­ tion for outstandi ng government service by a pointed to the United States Court of Appeals federal or local lawyer.50 for the District of Columbia Circuit in 1980 Rosenberg spent the last seven years of and then, in 1993, to the Supreme Court. her career before she retired in 1979 hearing job discrimination cases-including those in­ Getting the Assignment volving sexual harassment- on the appeals board of the Equal Employment Opportunity Working as an appellate lawyer for the federal Commission (EEOC). She also litigated ap­ government has been the most direct route to peals and helped persuade the Justice Depart­ gaining the opportunity to argue a case before ment that sexual harassment was a form of the Supreme Court. In recent Terms, many of gender di scrimination. Practical and quick­ th e cases heard have been between the federal witted, she served at the EEOC as a masterful government and an individual or other private mentor to a pride of appellate lawyers tackling party. Attorneys seeking to represent private employment discrimination cases. When she parties sometimes participate in "beauty con­ died in 1989, the D.C. bar inaugurated the tests" to peddle their services. Affluent clients Beatrice Rosenberg Award "for outstanding often make the rounds of a handful of top law­ government service by a bar member whose yers who specialize in appellate work-where career contributions to the government exem­ th e number of women is traditionally plifies the hi ghest order of public service." low-and ask questions about how each can­ Although she does not come close to didate would handle the case and how experi­ Rosenberg in terms of quantity of cases, Ruth enced that attorney is at arguing before the Bader Ginsburg deserves singling out as an Justices. The prestige of arguing a case before advocate for the quality of the arguments she the Supreme Court, and the reduction over the used to persuade the Supreme Court to strike past decade in the number of cases the Court down laws that treat men and women differ­ has agreed to hear each Term, make rhe com­ ently. As a cofounder of, and then general petition for assignments correspondingly stiff. counsel to, the Women 's Rights Project at the However, many women (and men) wind American Civil Liberties Union (ACLU), up arguing before the Supreme Court not be­ Ginsburg was the architect of a comprehen­ cause they are selected to jump in at the ap­ WOMEN COURT 79

level and lend their but simply has said: ''I've always been convinced that because they have ridden the case from the when I lost a 1 lost for a ... local level. In other words, clients oftcn stick reason," not because of gender. ''There are with the attorney who filed their suit, credentials you " she emphasized, "and of whether he or she is an experi­ right now a lot more men have those creden­ enced appellate lawyer. These advocates gen­ tials. Those credentials often include a do not return a second time unless clerkship for a Justice clerked for to be hired another client Chief Justice William H. Rehnquist) and a whose case is reviewed the stint at the OSG for the United Court. States. How many women argue before the Su­ One way to appellate work in the Su­ preme Court each Term? Only 17 percent of preme Court is to in a particular the who argued before the area of law. Jo Christian, a partner at the

Court in the 1999 Term, and] 0 percent in the "L\-·L)L'-"" & Johnson, is a 1986 Term, were women. This a served as Commis­ over the 1966 when that sioner of the Interstate Commerce Commis­ ure was I percent, and over the 1976 considered a ex­ Term, when it was a mere 5 How­ pert on and railroad law. ever, these have not kept pace with the Combining this with appellate skills the has made her an attractive choice for railroad or joining the Court companies in suits the govern­ bar. ment's transportation and interstate com­ To become a member of the Court's merce laws, many of which Christian helped an must be sponsored by two formulate. She has four times before nonrelated members of that bar who swear the Supreme Court and has nr'pn:.,rpn briefs ei­ that she has been a member in theI' for a party or amicus curiae in count­ of the bar of the court in their state for less other cases.56 at least three years. Once members Academic law schools are to file briefs and other papers also aid engagement in Court case. and to argue before the Bench, most Kathleen M. Sullivan, now dean of Stanford join simply for the prestige of being a member Law School, is the highest-profile of an elite bar. In 1996, nearly a quarter of the woman in this category. Sullivan helped pre­ attorneys admitted to the Supreme Court bar pare the brief Georgia's were women. That figure was up from 18 per­ antisodomy statute in Bowers v. Hurdwick cent in 1986 and 5 in 197653 A (I was on the briefs abor­ indicator of the female ranks of the tion clinics in Rust v. Sullivan (1991), and was Court bar occurred on March at the co-counsel table with Lawrence Tribe in 1998. On that Susan Orr Bush v. Palm Beach Karen Orr and Joanne Orr, attor­ Board neys from became the first three sis­ A indication that women advocates ters to be sworn in simultaneously54 are making progress and true con­ Do womcn advocates have a harder time tenders was the selection in 1998 of getting clients? experts, and the advo­ over stiff competition from cates say the answer is vocates, to represent the House of no. Solicitor General tives in a suit against the Commerce ment the Census Bureau's to use a new method for 80 JOURNAL OF SUPREME COURT HISTORY

In 1999, the House of Representatives hired Maureen Mahoney (right, addressing Justice John Paul Stevens at left) to argue a high-profile case against the Commerce Department challenging the Census Bureau's pro­ posal to use a new method for conducting the population count. the population count. This action was one of to the regulations of what a well-dressed law­ the most hi ghly prized assignments for the Su­ yer should wear before the Supreme Court."59 preme Court bar that Term57 At that time, the dress code for men was cutaways and striped trousers, also called a morning suit. Dressing for Success Although male advocates representing While male advocates have followed a formal parties other than the United States have long dress code, women advocates, absent any since stopped sporting th at uniform, lawyers rules, have had to improvise. In her day, Belva in the Office of the Solicitor General continue Lockwood wore prim black dresses befitting to honor the tradition. The office keeps half a her profession, but her arrival at the Supreme dozen outfits on hand, and most staffers bor­ Court drew considerable attention because row one that fits when they have a Supreme she came on a tricycle, which she found more Court appearance. However, when Deputy economical than a horse and carriage.58 When Sol icitor General Jewel Lafontant-a very Mabel Walker Willebrandt was named assis­ stylish dresser-became the first woman from tant attorney general in 1923, she had a skirt the OSG to argue a case before the Court, in made out of pinstriped material and a black 1973, she took a cue from Willebrandt and coat to "call [] the attention of her gentleman had a skirt and jacket specially made for her, colleagues of the bar to her ability to conform with a one-button cutaway, pinstriped skirt, WOMEN ADVOCATES SUPREME COURT 81 and ruffled blouse. Apparently she dis­ cided it was appropriate that they both be missed as "too then-acting dressed General Richard Kleindienst's morning suit, heard the which he offered for her first Court appear- first a woman in an­ Harriet S. also declined to other of uniform-a military one. Lieu­ dressed up in those crazy costumes that tenant Colonel Kim L. Sheffield presented the don't fit very well" for her first argument, and case in U.S. v. Scheffer (1998) instead wore her own suit61 Other women U.S. Air Force attire.64 from the OSG have generally followed her Other women advocates have chosen lead dark (but not brown) suits or clothes that gave them confidence or were sim­ dresses.62 ply comfortable. Ruth Bader Ginsburg sum­ Women who work at the Supreme Court moned the of her mother, Celia, when as Courtroom (there has yet to be a arguing before the Court: "I wear her earrings female Clerk or Marshal of the Court) also and her and 1think how she would wear the traditional cutaways with pants. This be if she were there,"65 custom started in I when Sandy Nelsen, The first woman to argue a case wearing Assistant to the Clerk of the Court, appeared M, in October in her usual spot at the Clerk's desk in the her­ Courtroom oral wearing a self in 1964 the first woman to wear a mini­ suit Clerk William Suter had de­ admitted to the

room pants, argument in the Court as much to make a political statement as to be comfort­ able.67 "He wasn't " commented , I) I. the Clerk of the when the Washington Post asked about Chief Justice Warren E. reaction.6E Buckley had called ahead to ask and was told by Rodak that the Justices did not mind what she wore as as it was "neat and clean."69

Husbands

The process of for a Court argument takes months and is nerve-wracking. An advocate only has minutes to make the argument, but she does not know how long she will be able to before a Justice jumps in with a question, Ad­ The first woman to argue before the Supreme Court, Belva lockwood favored prim black dresses with ruf­ vocates prepare answers to possible fled collars. She used a tricyc Ie to get to her Court and outline themes and points they intend to appointments because she found it the most effi­ deliver, whether in response to a question or cient and economical means of getting around Wash­ ington, D.C. through a narrative. It is difficult to 82 JOURNAL OF SUPREME COURT HISTORY

In 1973, Jewel Lafontant became the first woman from the Office of the Solicitor General to argue a case before the Supreme Court. For the occasion, she had a tailor make her a skirt and jacket that resembled the pinstriped cutaway coat and pants worn by her male colleagues.

what tangent a Justice's line of questioning Sixth District Court of Appeals of Ohio and might take, and an advocate must be prepared the Supreme Court of Ohio, respectively70 for anything. First-timers are often coached At least one woman advocate making her by veterans, who help them stage mock argu­ first Supreme Court appearance has been ments by playing the role of the Justices. Even coached at home by a husband who was a vet­ veterans continue to do mock arguments, no eran. Benna Ruth Solomon, a lawyer for the matter how many times they have appeared city of Chicago, and David Strauss, a profes­ before the Court. Horror stories abound of ad­ sor at the University of Chicago Law School, vocates who are humiliated because they get delivered arguments a week apart in 1997 .1 1 off track or fail to think fast enough to answer Strauss, who had already appeared fifteen a Justice' s question. times before the Court, admitted that he had a Some male advocates have had the good tougher time sitting with his two young fortune of collaborating with their wives on daughters watching his wife, who had clerked their presentation. The first couple to argue a for Justice Byron R. White, deliver an argu­ case together before the Court was probably ment than he had had performing himself. ALice L. Robie and Melvin L. Resnick in a "It's harder because you can't do anything death penalty case called Crampton v. Ohio with your energy, your nervousness," he ob­ (1971). Resnick presented the argument for served. "You just have to sit there."72 For oth­ Ohio, while Robie, who had cowritten the ers sitting in the Courtroom, Benna Solo­ brief, sat next to him at counsel table. They mon's argument was a treat to observe. "It were both assistant prosecuting attorneys at was one of the very best arguments of the the time and are now serving as judges on the Term," a regular observer commented)3 WOMEN ADVOCATES BEFORE THE SUPREME COURT 83

David Strauss and Benna Ruth Solomon stood on the steps of the Supreme Court with their daughters in 1977 after Solomon presented oral argument. They form one of several couples that have appeared before the Court, either as co-counsels or, as in this instance, to argue separate cases. 84 JOURNAL OF SUPREME COURT HISTORY

Another woman advocate, assistant solic­ questions and suggestions during dinner table itor general Cornelia T. L. Pillard, argued six conversations. days before her husband, David Cole, a pro­ fessor at Georgetown University Law Center, Rolling with the Waves in 1994. However, they were not much help to each other, because neither had ever argued The gallantry shown women in Daniel Web­ before the Supreme Court and they were pre­ ster's day has long since been replaced by paring unrelated cases. The stress level in professional courtesy. Female advocates are their household was enormous. "It's like the not cut any slack during the ordeal of oral ar­ Iron Man Triathalon of the law," explained gument because they are women. There may Pillard. "There's so much training and prepa­ even have been some initial resistance to ration, it's ... the ultimate challenge."74 women advocates appearing in the Court­ Ruth Bader Ginsburg reports that not room, if only on the part of Justice James C. only did her husband, Maltin D. Ginsburg, McReynolds, who also objected to the Court now a Georgetown University Law Center employing women75 When Emily Marx ar­ professor, read drafts of her briefs and listen gued the citizenship eligibility case of a Cana­ to rehearsals of her arguments, but her son and dian nurse in 1931, Justice McReynolds re­ daughter also routinely chimed in with their portedly remarked in a voice loud enough for

Ruth Bader Ginsburg's son James and nephew David Stiephman attended her 1978 oral argument in Duren v. Missouri, one of six cases she argued before the Supreme Court. WOMEN ADVOCATES BEFORE THE SUPREME COURT 85 all to hear: "Do we have to listen to a The first time I a case here I male?,,76 didn't have lunch ... because I did­ As the Court dis­ n't know whether I could keep it crimination cases in the ]970s and the down. I was initially terribly ner­ women's movement came into flower, did vous. and after about two minutes women advocates gain an in argu­ into the argument I looked up at ing cases? Justice Douglas im­ these guys and I "I have a cap­ plicitly answered that in tive audience. have no place to how four women so irritated him dur­ go for the next half hour their arguments that he jokingly consid­ listen to me. And it was a of ered rolling back all the progress the power. And then there was the chal­ Court had granted women in equal protection lenge of cases.

In the sixties and seventies, more and more women as advocates. Their average and skill were ENDNOTES the same as the male advocates and their presence was no cure for the me­ IKaiser v. SI;cknev, I u.s, clxxxvil Appx (1880). pendix of "Omitted in the Reports of the Decisions of most arguments before us. of the Supreme Court." 1 remember four women in one case 2See Norgren, Jill, "Before It Was Merely Difficult: who droned on and on in Belva Life in Law and ,. Journal of voices that special alten­ Supreme Cour/ His/or)' 23, no. l (1999) at 1&40. tion to our arguments, for this is the JLockwood's efforts to be admitted to the Supreme Court of women's liberation." Several bar were considered by Washington Malvina Shanklin Harlan, of Justice John Marshall of us did express the view that any Harlan, attended a party at the White House for Chief Jus­ law which drew a line between men tice Morrison R. Waite on the day the Court initially had and women was inherently suspect. refused Lockwood's application for admission, "It was an That view had not prevailed over the unprecedented proceeding at that time." she reponed, majority saying a discrimination "and the people of Washington generally were laughing in their sleeves over it. The giving an account of classification would be sustained if it The Chief Justice squelched the fair applicant. "reasonable." During this argument Malvina S. Harlan, Some Memories of a Long Life, by the four wondrous Amazons, I 1854-19H (revised 1915) (unpublished manuscript, Li­ sent a note the bench I brary of Congress, Washington, D.C.) at was about to my mind on sex 4Sheldon, George. "Negro Slavery in Old Deerfield," classifications and sustain them if New England Magazine n.S. 8 (March 1893) at 54-57. 5Quoted in Proper, David R, Lucy Terry Prince: Singer were "reasonable."77 01' History (1997) at 32, Proper's work discredits the While a case to the Justices is story of Prince's oral argument before Justice Chose for lack of documentation. perhaps the most difficult task a lawyer can 6For a well-considered argument giving the of the it also confers enormous doubt to the Prince story. see Smith, 1, Jr. Emanci­ experience. De­ pation: The Making of the Black Lawyer, 1844-1944 even Ruth Bader Ginsburg (1993). at 70-71. For a more contemporaneous historical felt the same fears during her first time argu­ account of Prince's argument, Holland. 10siah Gilbert, History of Western Massachusetts the ing before the Court that strike most Countif's of Hampden, Hampshire, Franklin, and men or women. Yet she has also Berkshire: Embracing an Outline, or General His­ recalled how powerful the experience made lory, of the Section, an Account or Its Scientific As­ her feel: pects and Leading Inlel'est'>, and Separate Histories of 86 JOURNAL OF SUPREME COURT HISTORY

Its One Hundred Towns ( 1855). See also Iwo olher 11Coll iev I'. Ballinger, Secrelary of Ihe Inlerior, 2 I 6 U.S. sources Ihal perpelUaie Ihe Prince legend : Merriam. Rob­ 84 ( [9 10). erl L. , Lucy Terry Prince (1983); and Kalz, Bernard and ISThe Historic Huron Indian Cemetery, pamph let of Jonalh an , Black Woman: A Fictionalized Biography of the Kansas Cily Chamber of Commerce. Lucy Terry Prince (1973), 225-69. 19SIllil h, J. Clay, Jr., ed., Rebels in Law: Voices in His­ 1Correspondence bel wee n Rod ney B. Fi eld and George tory of Black Women Lawyers ( 1998 ) at 282. Sheldon, qu oled in Prope r, supra nOle 4 a14 7, nDie 142. 2oSmilh, supra nOle 6, at 69-70. ~ M a rc u s , Mae v. A lranscriplion of Ihe handw rillen manu­ cases (Reinecke v. Cardller l I 928], Donnelley v. Uniled scripl of Lyda B. Con ley's oral argu menl. wri llen in Stales [1928] and Un iled SImes v. John Barth Company 1909, is posted on Ihis site. I 1929]) befo re her resignalion . WOMEN ADVOCATES BEFORE THE SUPREME COURT 87

.2"Assistant to Attorney General Handles Much Work on of admittees for the sa me Term. Because the Supreme Trains," The Wa shinglOn Post March 28, 1914 at 13. Court Journal does not list honorifics such as Mrs. and 4JKirby Petrolellm Co. v. Commissioner ofInternal Rel'e­ Ms. whe n reco rding oral and written admissions, gender IlLie. Commissioner of Internal Revellue v. CraH1rJrd 326 was determined by the fir st name. Given names that are U.S. 599 ( 1946); Commissioner of Internal Revenue v. amb iguous (Robin. Terry, Leslie, etc.) were not counted. /-Iolmes' Estate 326 U.S . 480 ( 1946); Putnam 's Estate v. To acco mmodate a margin of error. percentages were Commissioner ofInternal Revenue, 324 U.S. 393 ( 1945); rounded off.

United Stales II. Slandard Rice Co.. 1111'., 323 U.S. 106 54"Three Sisters from Indiana to be Sworn [n before the ( 1944); Commissioner of Inlemal Revenue v. BedjiJrd's United States Supreme Court," press release, The Na­ E.I/(l/e, 325 U.S. 283 (1945); MerrillI'. Fahs, Col/eelor of tional Society Daughters of the American Revolut ion, Intenwl Revelllle, 324 U.S. 308 (1945); COlllmissioner of March 2, 1998. Inlemal Revenue v. Wemyss 324 U.S . 303 (1945); s.\ Bis kupic, Joan, "Women Are Still Not WeJJ-Repre­ Douglas v. Commissioner of Intemal Rel'el1ue, Robin­ se nted Among Lawyers Facing Supreme Test: Despite son's E.l'wle 1'. COfflmissioner of Internal Revenue, Dct!­ Gains for Female Advocates, High Court Is Largely a r\'tnple v. Commissioner of Il1Iern al Revenue, 322 U.S. Man 's Venue," The Washingloll POSI, May 27, 1997 at 275 (1944) (two cases); Maguire v. Commissioner pf In · A1. lernal Revenue, 1 13 U.S. I ( 194 1); I-I arrison v. Norlhem S6[nterview with Betty Jo Christian, September 1999. Tru SI Co .. 3 17 U.S. 476 ( 1943): /-I oggar Co. v. /-I ell'ering. 57Uniled SWles Deparrl71en l of Commerce v. Ulliled COln 'r of I,,'ernal Rel'enlle, 308 U.S. 389 (1940); Com­ SImes /-l ouse of Represenralives. 525 U.S. 3 16 (1999). missioner of IIIIernal Revenlle v. Gooch Mil/illg & Eleva­ 5SNorgre n, sl.lpra note 2 at 19. lor Co., 320 U.S . 418 ( 1943); l-Iell'eril1g, Commissioner 59C larke. sul'I'lI note 41 at 70. of I"'emal Rel'el1ue v. Melropolilan Edison Co .. Melro­ ti°Radcl iffe, Donna, and Hyde , Nina S .. "Courting Attire." polilOIJ Edison Co. 1'. Pennsylvania Waler & Power Co .. Th e Washing lOll POSI, November 27, 1973, at B2 . 306 U.S. 522 (l939): Real E.)'Iale-Lollu Tille & Trusl Co. til Interview with Harriet S. Shapiro, May 1999. ". Uniled SIOIes, 309 U.S. 13 ( 1940): LlIItg v. COlnmis­ 6~ Bi skup i c, Joan. " In Thi s Court, One Must Dre ss wi th sionerof IIIIenral Rel'enue, 304 U.S. 264 (1938); General Respect for the Justices," AUSlin American-Slaresllwn. Gas & EleClric Corporaliort 1'. Comm.inioner of Inlemal December 18, 1999. at A33 . Revenue, 306 U.S. 530 (1939). 6V'S pecial Events Supreme COLIrt of the United States," ''' Towl Broadhur.l'I Lee Company. LId., 1'. Commissioner November 3. 1992. of Imemal Revenue, 279 U.S. 861 (1929) """Special Events Supreme COLIn of the United States," .5Douglas, Willi am 0., The Court Years, 1939-1975: November 3, 1997. The Autobiography of William 0, Douglas (1980) at ti5 Quoted in Ayer, Eleanor H., Ruth Bader Ginsburg: 184. Fire and Steel on the Supreme Court (1994) at 55 . • ti " B es~ i e Margolin , Labor Depa rtment Lawyer," obitu­ 66The case was Lubin v. Panish., 4 15 U.S. 709 (1974). ary , The Wa shinglon POSI. June 2 1, 1996 at B6. 67 1nterview with Marguerite M. Buck ley, March 2000. 47Douglas, supra note 45 at l84-5. Some press reports erroneously attributed the dist inc tion J,<" Beatrice Rose nberg; Prom inent Attorney for the U.S. of begin the first woman to argue before the Supreme Was 8 1," obi tuary, The New York Times, December 2, Coun in pants to Jane M. Picker, who argued a high-pro­ 1989, section l at 15. file pregnancy case, Cleveland Bd. ofEd. v. u tFleur, dur­ .9Douglas , supra note 45 at 186. ing the sa me Term. Picker wore a red pant suit in th e Su­ 50" Beatrice Rosenberg, Lawyer. Ju stice Official," obitu­ preme Court bui lding while preparing her case, but chose ary, The Washingloll POSI, December 2, 1989, Metro sec­ a dress for the actual argume nt. Interview with Jane M. tion . Pi cker, March 2000. .IlSee generally Cushman, Cl are, ed., Supreme Court 68Radcliffe and Hyde, supra note 60. Decisions a nd Women's Righls: Milestones to Equal­ 69 Bu ckley interview, supra note 67. ity (2001 J. 70Cramploll v. Ohio, 402 U.S. 183, argued November 9, 32These percentages were calculated by countin g the 1970. Correspondence wit h Alice Robi e Resnick, Sep­ number of women advocates (Mrs. and Ms. in the Su­ tember 10, 1999. preme Court journal) who have argued in a give n Term 7lDavid Strauss argued Sleel Co. v. Olizens for (/ Beller and dividing that number by the total nu mber of advo­ Envimnmen l, 523 U.S. 83 (1998), on October 6, and cates who argued th at Term (including amicus curiae and Benna Ruth Solomon argued Chicago v. Infernalional pm hac vice). Percentages were rounded off. College ofSurgeons, 522 U.S. 156 (1997), on October 14. 5JTh.ese percentages were calcu lated by countin g the 72Greenberg, Jan Crawford, 'This Couple Argues Before number of female ad mittees to the Supreme Court bar in a Highest Court," ChicoRO Tribune, October 15, 1997, at 6. give n Term and dividing that number by the total number 73Anonymou s source. 88 JOURNAL OF SUPREME COURT HISTORY

74 Greenberg, supra note 72. to be approach ing the office." The anonymous employee 75 0 ' Don nell, Alice L, "A Long W ay. Baby: Women and was O' Donn ell herse lf; the unnamed Ju sti ce was James Other Strangers Before the Bar. " Supreme COllrl Hislori­C. McRey nolds. cal Sociely Yearbook ( 1977) at 59. The author recounts 76Schaeffer, Amy. "Meet Miss Marx l " , Barnard College how "one Justice was opposed to hav ing any women em­ Alumnae Magazine, Jan uary 1941 , vol. xxx, no. 4 at 12. ployees at the Court. One Clerk of th e Court fina lly dared The case was Uniled Slates v. Bland, 283 U.S. 636 pioneer the course and hired a woman to work 111 his of­ ( 193 1). fice. But so violently opposed was the Ju sti ce thaI (tales 17 Douglas, supra note 45 at 185. recount) the woman had to hide every time he wa s heard 7HFilm for Visitors, Supreme Court of the United States. Revivifying Political Science: Lucas A. Powe, Jr., on the Warren Court

MELVIN I. UROFSKY

The Supreme Court is studied by a variety of scholars~historians , political scientists, soci­ ologists, economists, and law school professors of all types. While the focus varies according to individual interest~religious scholars will be especially concerned with Establishment and Free Exercise Clause di stinctions-for the most part all of us try to look at what the Court does in a larger context. A particular case dealing with free speech mu st be read not only in terms of prior Court cases but also within the boundaries of free speech theory, public considerations, and current controversies. When I first became interested in the Su­ these " behavioralists," nothing is important preme Court, political science was dominated except numbers-how many opinions, who by people who recognized that the Court, as a voted with whom, and so on. I remember coequal branch of government, had to be reading an online review by a behavioralist of viewed through the lens of political activity. a book on the Court in the 1940s that relied, With this understanding, men such as E. S. among other things, on recently opened Corwin, Alpheus T. Mason, and Walter manuscript collections, oral history memoirs, Murphy wrote stimulating and classic works and the most recent scholarship. The review on the role of the Court in American society. dismissed the book as having nothing to teach They had not only a historical understanding readers, since it did not have any charts, ta­ of the Court, but also a sense of how the insti­ bles, or other evidence of numerical calcula­ tution functioned within the parameters of tions. When I asked a friend, a political scien­ government dictated by the Constitution. ti st of the old school, what was going on, she Alas, the "institutionalists" have been just sighed and said that was what she had to driven out of many political science depart­ deal with all the time. ments and replaced by bean counters. For Now comes Lucas A. Powe, Jr., a 90 JOURNAL OF SUPREME COURT HISTORY

one-time clerk to William O. Douglas who eventuaJJy of Thurgood Marshall. From 1962 holds the Anne Green Regents Chair at the onward, the liberals-those committed to University of Texas Law School. An ac­ what has been called "a living Constitu­ knowledged expert on First Amendment law, tion"-had the majority. It was during these especially as applied to radio and television, years, 1962 to 1969, that nearly all of the Powe makes it plain in The Warren Court non segregation decisions we associate with and American Politics (Harvard University the Warren Court came down-decisions re­ Press, 2000) that he is fighting this drift to­ garding rights of the accused, privacy, appor­ ward number-crunching and wants to return tionment, freedom of the press, and other to what political science used to be about issues. when dealing with the Court: an understand­ It was an era of judicial activism un­ ing of the cases, not just in their legal context, matched in our history, and-unlike the leg­ but as part of the broader stream of American acy of Taft and the Four Horsemen of the political life. The book is a welcome change, 1920s-the Warren Court' s jurisprudential and one can only hope that others will follow legacy remains largely intact. State legisla­ in Powe's footsteps. tures remain apportioned on a "one person, The book is organized semichrono­ one vote" formula. The right of privacy is so logically, in sections of three or more chapters entrenched that no appointee to the courts can apiece. A listing of the section titles will give claim that it does not exist or that it is not con­ the reader an immediate sense of what Powe stitutionally protected. The press is free to in­ is about: "Beginnings: The 1953-1956 vestigate the misdoings of political and public Terms"; "Stalemate: The 1957-1961 Terms"; figures free from the threat of a libel suit. And "History's Warren Court: The 1962-1968 even former critics of the Miranda warning Terms"; and "The Era Ends." In his first three now accept it as constitutionally required. As years as Chief Justice, Warren was getting his Laura Kalman has shown in a recent book, it bearings even while having to deal with one is this era of the Warren Court that continues of the most sensitive and politically volatile of to shine as a judicial Camelot, a time when all issues ever to come before the Court: racial caring men used the Constitution to do jus­ segregation. By 1956, President Eisenhower tice.' had added John Marshall Harlan and William This tripartite exposition of the Warren 1. Brennan, Jr., to the COUJt, which was split COUJt is in large part familiar to historians. almost evenly in two. The conservatives, What makes Powe's book so valuable is its headed by Felix Frankfurter, controlled four placement of impoJtant decisions in the and occasionally five votes, with the liber­ broader social and political context of the als-Hugo L. Black, Douglas, Brennan, and times. To take one example, Powe introduces the Chief--controlling just four. Powe shows his discussion of the obscenity cases (cer­ that this apparent stalemate should not sur­ tainly not the Court's most shining hour) by prise us as much as what the Court actually informing the reader that, in May 1960, the managed to do. Because the Red Scare tactics Food and Drug Administration approved the of McCarthyism and the Truman-Eisenhower prescription sale of Enovid, the first oral con­ loyalty programs so offended Justice Harlan's traceptive. Many scholars attribute the great innate sense of decency, he joined with the burst of sexual freedom that marked the fol­ liberals to undo the damage caused by the lowing decade as flowing directly from the Vinson Court's opinion in Dennis v. United cheap availability to women of a safe and ef­ States (1951). fective contraceptive. Conservative Republi­ Then came the appointments of Arthur can Clare Booth Luce, certainly no radical or Goldberg, to be replaced by Abe Fortas, and hippie, proclaimed that "modern woman is at LUCAS A. POWE, JR. ON THE WARREN COURT 91 last free as a man is free, to dispose of her own by critics who see the Warren Court as the body."2 Helen Gurley Brown wrote the 1962 fount of all modern depravity. The type of bestseller Sex and the Single Girl, and the sexual material with which the Court had to circulation of Hugh Hefner's Playboy maga­ deal would have shocked Anthony Comstock, zine climbed into the millions. At the begin­ but not a fourteen-year-old in 1968. No won­ ning of the decade, a lower court ruling finally der the Court had so much trouble coming up made it possible to legally purchase D. H. with a definition of obscenity; public percep­ Lawrence's Lady Chatterley'S Lover; by the tions kept changing even as the Justices wres­ end of the decade, movies aimed at mass audi­ tled with the problem. Perhaps they might ences displayed women fully nude. have been better off had they adopted William It was against this backdrop of sexual lib­ O. Douglas's admonition that neither the eration and the women 's movement that the Court nor any other arm of the government Court wrestled with the question of whether ought to be a censor; it might have offended the state could legitimately regulate the con­ some blue noses, but it would at least have tent of books and magazines as part of its po­ provided them with a consistent and intellec­ lice powers. Powe also reminds us that really tually defensible doctrine. hard-core pornographic material did not enter We might also recall that, only two years the market until the 1970s, a fact overlooked after the Court handed down its decision in

The Warren Court era was one of judicial activism unmatched in our history, and its legacy remains largely intact. Powe's new book, The Warren Court and American Politics, examines the Court's decisions in a broad societal context. This informal photo of the Warren Court was taken in 1963; Justice Harlan was not present. 92 JOURNAL OF SUPREME COURT HISTORY

Engel v. Vitale (1962), noted constitutional ample of how the COUlt controls its docket as scholar Philip Kurland wrote that "the Court well as its image, and Powe- relying on has been most fortunate in the enemies that it newly opened papers of the Justices-tells the has made, for it is difficult not to help resist story well. By the time the Court took the attacks from racists, from the John Birch So­ case, at least five of the Justices had already ciety and its ilk, and from religious zealots joined an opinion in another case that would who insist that the Court adhere to the truth as have effectively overruled BellS v. Brady, the they know it."3 As much as anything else, this 1942 precedent in which the Court had denied one sentence indicates how times have a criminal defendant the right to counsel. In changed in the last four decades. For the most fact, even as the Chief Justice directed his part, a majority of the American people ac­ cJerks to look for a good case on which to cepted the original school prayer decisions. overturn BellS, the Court issued two terse per To traditionalists who felt that prayer was im­ curiam decisions regarding indigents' rights portant, President John F. Kennedy offered a to counsel. commonsensical suggestion: "We have ... a The chief protagonist in the first case, very easy remedy. And that is , to pray our­ Willard Carnley, had been convicted of incest selves. And I would think that it would be a and indecent assault upon a minor in Florida. welcome reminder to every American family Florida did not provide Carnley with counsel, that we can pray a good deal more at home, and, like Gideon, he filed an in forma we can attend our churches with a good deal pauperis petition from state prison. Illiterate more fidelity, and we can make the true mean­ and poor, Carnley would have been an ideal ing of prayer much more important in the case except for the crime-incest-plus the lives of all of our children."4 Engel, of course, fact that, unlike Gideon, there were eyewit­ has become a rallying point for the social con­ nesses who testified to Carnley's guilt. So the servatives gathered on the Christian Right, a Justices reversed on the Betts "special circum­ group whose noise volume often obscures any stances" rule. real di scussion of exactly what the Court The second case involved two men, meant. However, the Warren Court must have Bennie Meyes and William Douglas, con­ gotten it right, because as recently as last victed in California for robbery and assault Term the Justices reaffirmed Engel 's basic with intent to commit murder. They had a principle: that there is no place in state-spon­ lawyer, but he was an overworked public de­ sored institutions for coerced prayer. fender. They claimed that he had done an in­ Gideon v. Wainwright (1963) was the adequate job of defense, and that their two Warren Court's most popular criminal justice cases should have been separated because of decision, because it rested on an insight that an inherent conflict of interest. Here again the most people could understand: without a law­ Court could have overruled BellS outright or yer for the defendant in a criminal case, there reversed on special circumstances. At Confer­ can be no justice. Anthony Lewis immortal­ ence, six of the eight Justices voted to reverse, ized the case in Gideon's Trumpet (1964), but they could not agree on a rationale. Then and then Henry Fonda staned as Gideon in a evidence appeared that the wrong man had ap­ television movie. As Warren biographer Ed pealed the conviction, and the Justices voted, Cray wrote, "No tale so affirmed the Ameri­ 6-2, to dismiss the case on the rather rare can democracy. No story broadcast around the grounds that certiorari had been improvi­ world so clearly proclaimed that not just the dently granted. Normally such a ruling carries rich received justice in American courts."5 little or no explanation, but in Douglas v. Cal­ Behind Gideon, however, is a good ex­ ifornia, Justice William O. Douglas, joined by LUCAS A. POWE, JR. ON THE WARREN COURT 93

Powe, relying on newly opened papers of the Justices, ably tells the story behind Gideon v. Wainwright, offering it as a good example of how the Court controls its docket as well as its image. Clarence Earl Gideon (right) was a penniless drifter accused of a petty crime and convicted on primarily circumstantial evidence.

Justice Brennan, dissented, and he wrote such tial evidence, the Court finally had the case it a powerful dissent that on circulation three wanted. And when Abe Fortas agreed to rep­ more members of the Court joined, so that resent Gideon, the Justices now had the stage Douglas's dissent then became the opinion of set for the drama as they wanted it played out. the Court. In the film, the assistant attorney general rep­ In fact, the results of the DougLas case de­ resenting Florida appears to have had little termined what the opinion would be in Gid­ chance of winning; in fact, he had none. eon, but the unsavory nature of the defendants Why should we read this type of Court and of their crime again led the Court to wait. history, as opposed to that churned out by the In Clarence Earl Gideon, a drifter accused of a behavioralists? For one thing, this book is crime and convicted on primarily circumstan­ readable. Powe is not a master stylist, but he 94 JOURNAL OF SUPREME COURT HISTORY writes clearly and in a way that makes it easy ENDNOTES to follow his story and hi s analysis. For an­ other thing, numbers do not really tell us I Laura Kalman. The Strange Career of Legal Liberal­ much beyond who voted with whom, or what ism (New Haven: Yale University Press, 1996). 2James T. Palterson , Grand Expectations (New York: a Justice's voting tendency has been on simi­ Oxford University Press, 1996), p. 360. 6 lar cases Like Corwin, Mason, and others, 3Kurland, "Foreword," 78 Harvard Low Review 143, 176 Powe can tell us this information as it should (1964), quoted in Powe. 358. be told: as a small part of a much more im­ 4New York Times. 28 June 1962, p. 12 . portant story, namely, how the Supreme SEd Cray, Chief Justice: A Biography of Earl Warren (New York: Simon & Schuster. 1997). pp . 405-06. Court of the United States undertook to 6Justi ces often have a way of voting independently, mak­ re-examine basic constitutional principles ing such numerical an alyses useless. To give but one ex­ and to bring them up to date in a time of tur­ ample, Justice Robert H. Jackson's voting record would moil, and how, with few exceptions, it did so indica te that he usually supported the government in is­ successfully. sues of individual rights. Yet he fooled everyone and There are many laudable parts to this penned one or the most eloquent and most dramalic de­ ren ses of reli gious liberty in West Virginia Srate Board of book-good research; careful analysis of Education v. Bamerre. 319 U.S. 624 ( 1943). One migh t cases; and, above all, a clear understanding of also note Louis D. Brandei s' lifelong opposition to mo­ what was happening outside the Marble Pal­ nopoly, a view he often express ed while on the Cou rt, and ace and how it affected the Justices' opinions. then wonder how the behavioralists would explain hi s It is a fine example of political science of the vote in New State Ice Co. v. Liebmann. 285 U.S . 262 (1932). old school, and one can only wish Powe the best as he tries to revivify that discipline in the new century. 95

Contributors

Jeffrey M. Anderson is an associate at Melvin I. Urofsky is Chairman of the Board Bradley Arant Rose & White in Birmingham, of Editors at the Supreme Court Historical So­ Alabama. He wrote this article, which won the ciety and Director of the Ph.D. Program in 2000 Hughes-Gossett Student Essay Prize, as Public Policy at Virginia Commonwealth his master's thesis in history at the University University. of Virginia. Frank D. Wagner is Reporter of Decisions at Clare Cushman is Director of Publications the Supreme Court of the United States at the Supreme Court Historical Society and editor of Supreme Court Decisions and William M. Wiecek is Chester Adgate Women's Rights: Milestones to Equality Congdon Professor of Public Law and Legis­ (CQ Press, 2001). lation and Professor of History at Syracuse University. Jon O. Newman is a judge of the United States Court of Appeals for the Second Cir­ cuit.

Photo Credits

Page 3, Library of Congress Page 61 , Corbis Images Page 4, Courtesy of Morris L. Cohen Page 68, Painting by Louise Minks Page 6, Collection of the Supreme Cour( of the United Page 70, Library of Congress Stales Page 72, Kansas City Sial' Pages 10-2 1, all CoJiection of the Supreme Court of the Page 73. Library of Congress United Slales Page 74 , Courtesy of Patricia Dwinne ll Butler Pages 26, 27,35, The New York Times Page 75, Courtesy of Haniet S. Shapiro Pages 37, 38, 39, Library of Congress Page 76, Library of Congress Page 55, Corbis Ima ges Page 77, Courtesy of Nancy Stanley and Chuck Reichel Page 56, Collection of th e Supreme Court of the United Page 80, Drawing by Dana Verkateren States Page 81, fi Ie photo Page 57, Collection of the Supreme Court of th e United Page 82, Corbis/Bettman UPI States Page 83, Chicago Tribune Page 58, all Collection of the Supreme Coun of the Page 84, Courtesy of Ruth Bader Ginsburg United States Page 91, Library of Congress Page 60, Harvard Law Art Collection Page 93, Corbis Images

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