Charles Evans Hughes: the Ec Nter Holds William E
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Hugo Lafayette Black and John Harlan - Two Faces of Constitutional Law with Some Notes on Teaching of Thayer's Subject
Louisiana State University Law Center LSU Law Digital Commons Journal Articles Faculty Scholarship 1982 Hugo Lafayette Black and John Harlan - Two Faces of Constitutional Law With Some Notes on Teaching of Thayer's Subject O. W. Wollensak Paul R. Baier Louisiana State University Law Center, [email protected] Follow this and additional works at: https://digitalcommons.law.lsu.edu/faculty_scholarship Part of the Law Commons Repository Citation Wollensak, O. W. and Baier, Paul R., "Hugo Lafayette Black and John Harlan - Two Faces of Constitutional Law With Some Notes on Teaching of Thayer's Subject" (1982). Journal Articles. 372. https://digitalcommons.law.lsu.edu/faculty_scholarship/372 This Article is brought to you for free and open access by the Faculty Scholarship at LSU Law Digital Commons. It has been accepted for inclusion in Journal Articles by an authorized administrator of LSU Law Digital Commons. For more information, please contact [email protected]. HUGO LAFAYETTE BLACK AND JOHN MARSHALL HARLAN: TWO FACES OF CONSTITUTIONAL LAW-WITH SOME NOTES ON THE TEACHING OF THAYER'S SUBJECT Bv 0. W. WoLLENSAK* I. It was a great surprise last semester when Supreme Court Justices Hugo Black and John Marshall Harlan visited the LSU Law Center for what turned out to be a heated dialogue on color video tape. The program was hosted by LSU's media mastermind, Professor Paul Baier,** who apparently has given up suing hospitals, see Baier v. Woman's Hospital, 1 and turned to producing television shows, his latest entitled "Hugo Lafayette Black and John Marshall Harlan: Two Faces of Constitutional Law."2 Professor Baier believes that constitutional law includes • Editor's note: Professor Baier is following Karl Llewellyn in using a pseudo nym. -
In Defence of the Court's Integrity
In Defence of the Court’s Integrity 17 In Defence of the Court’s Integrity: The Role of Chief Justice Charles Evans Hughes in the Defeat of the Court-Packing Plan of 1937 Ryan Coates Honours, Durham University ‘No greater mistake can be made than to think that our institutions are fixed or may not be changed for the worse. We are a young nation and nothing can be taken for granted. If our institutions are maintained in their integrity, and if change shall mean improvement, it will be because the intelligent and the worthy constantly generate the motive power which, distributed over a thousand lines of communication, develops that appreciation of the standards of decency and justice which we have delighted to call the common sense of the American people.’ Hughes in 1909 ‘Our institutions were not designed to bring about uniformity of opinion; if they had been, we might well abandon hope.’ Hughes in 1925 ‘While what I am about to say would ordinarily be held in confidence, I feel that I am justified in revealing it in defence of the Court’s integrity.’ Hughes in the 1940s In early 1927, ten years before his intervention against the court-packing plan, Charles Evans Hughes, former Governor of New York, former Republican presidential candidate, former Secretary of State, and most significantly, former Associate Justice of the Supreme Court, delivered a series 18 history in the making vol. 3 no. 2 of lectures at his alma mater, Columbia University, on the subject of the Supreme Court.1 These lectures were published the following year as The Supreme Court: Its Foundation, Methods and Achievements (New York: Columbia University Press, 1928). -
Justice Sherman Minton and the Protection of Minority Rights, 34 Wash
Washington and Lee Law Review Volume 34 | Issue 1 Article 6 Winter 1-1-1977 Justice Sherman Minton And The rP otection Of Minority Rights David N. Atkinson Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Civil Rights and Discrimination Commons Recommended Citation David N. Atkinson, Justice Sherman Minton And The Protection Of Minority Rights, 34 Wash. & Lee L. Rev. 97 (1977), https://scholarlycommons.law.wlu.edu/wlulr/vol34/iss1/6 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. JUSTICE SHERMAN MINTON AND THE PROTECTION OF MINORITY RIGHTS* DAVID N. ATKINSON** Discrimination in education, in housing, and in employment brought cases before the Vinson Court which were often resolved by a nearly unanimous vote, but they frequently raised constitutional and institutional dilemmas of agonizing dimensions. A fundamental commitment of the Court at this time was accurately reflected by Justice Jackson's off-the-Court admonition to his colleagues on the inadvisability of seizing "the initiative in shaping the policy of the law, either by constitutional interpretation or by statutory construc- tion."' There were strong voices within the Vinson Court which held rigorously to Justice Holmes' dictum that "judges do and must legis- late, but they can do so only interstitially; they are confined from molar to molecular motions." Institutional caution, theoretically at * This is the fifth and final of a series of articles written by Professor Atkinson dealing with the Supreme Court career of Justice Sherman Minton. -
Justice Jackson in the Jehovah's Witnesses' Cases
FIU Law Review Volume 13 Number 4 Barnette at 75: The Past, Present, and Future of the Fixed Star in Our Constitutional Article 13 Constellation Spring 2019 Justice Jackson in The Jehovah’s Witnesses’ Cases John Q. Barrett Professor of Law, St. John’s University School of Law, New York City Follow this and additional works at: https://ecollections.law.fiu.edu/lawreview Part of the Constitutional Law Commons, First Amendment Commons, and the Religion Law Commons Online ISSN: 2643-7759 Recommended Citation John Q. Barrett, Justice Jackson in The Jehovah’s Witnesses’ Cases, 13 FIU L. Rev. 827 (2019). DOI: https://dx.doi.org/10.25148/lawrev.13.4.13 This Keynote Address is brought to you for free and open access by eCollections. It has been accepted for inclusion in FIU Law Review by an authorized editor of eCollections. For more information, please contact [email protected]. 10 - BARRETT.DOCX (DO NOT DELETE) 5/9/19 6:03 PM JUSTICE JACKSON IN THE JEHOVAH’S WITNESSES’ CASES John Q. Barrett* I. Robert H. Jackson Before He Became Justice Jackson ..................828 II. Barnette in Its Supreme Court Context: The Jehovah’s Witnesses Cases, 1938–1943 ...........................................................................831 A. The General Pattern of the Decisions: The Court Warming to Jehovah’s Witnesses’ Constitutional Claims .......................831 1. The Pre-July 1941 Court ....................................................831 2. The July 1941–May 1943 Court ........................................833 3. The June 1943 Court ..........................................................834 B. Some Particulars of Supreme Court Personnel, Cases, and Decisions, From Gobitis (1940) to Barnette (1943) ................834 III. Justice Jackson on Jehovah’s Witnesses: The Author of Barnette Wrote First, and Significantly, in Douglas .....................................844 IV. -
The Impartiality Paradox
The Impartiality Paradox Melissa E. Loewenstemt The constitutional principles that bind our free society instruct that the American people must "hold the judgeship in the highest esteem, that they re- gard it as the symbol of impartial, fair, and equal justice under law."'1 Accord- ingly, in contrast with the political branches, the Supreme Court's decisions "are legitimate only when [the Court] seeks to dissociate itself from individual 2 or group interests, and to judge by disinterested and more objective standards." As Justice Frankfurter said, "justice must satisfy the appearance of justice. 3 Almost instinctively, once a President appoints a judge to sit on the Su- preme Court,4 the public earmarks the Justice as an incarnation of impartiality, neutrality, and trustworthiness. Not surprisingly then, Presidents have looked to the Court for appointments to high profile and important committees of national concern. 5 It is among members of the judiciary that a President can find individuals certain to obtain the immediate respect of the American people, and often the world community. It is a judge's neutrality, fair-mindedness, and integrity that once again label him a person of impartiality and fairness, a per- son who seeks justice, and a President's first choice to serve the nation. The characteristics that led to a judge's initial appointment under our adversary sys- tem, and which lend themselves to appearances of propriety and justice in our courts, often carry over into extrajudicial activities as well. As Ralph K. Winter, Jr., then a professor at the Yale Law School, stated: [t]he appointment of a Justice of the Supreme Court to head a governmental com- mission or inquiry usually occurs because of the existence of a highly controversial issue which calls for some kind of official or authoritative resolution ....And the use of Supreme Court Justices, experience shows, is generally prompted by a presi- t Yale Law School, J.D. -
Justice Owen J. Roberts on 1937
JUSTICE OWEN J. ROBERTS ON 1937 Edward L. Carter & Edward E. Adams† HE MOTIVATIONS FOR Supreme Court Justice Owen J. Roberts’ so-called “switch in time that saved nine” in 1937 remain largely obscured. For much of the past 75 years, judges, lawyers, and scholars have discussed – in- cluding recently in this journal1 – why Roberts would vote to up- T 2 hold minimum-wage legislation in March 1937 when he had voted to invalidate similar legislation in June 1936.3 Because President Franklin D. Roosevelt unveiled his court-packing plan on February 5, 1937, externalists have ascribed political motivations to Roberts and the Court.4 Internalists, meanwhile, have pointed to legal rea- sons for the switch.5 With the exception, however, of a memoran- dum Roberts gave to Justice Felix Frankfurter in 1945 that was first published a decade later,6 Roberts’ own voice has been largely miss- ing from the discussion. † Ed Carter is an Associate Professor of Communications and Ed Adams is a Professor of Communications at Brigham Young University. Copyright © 2012 Edward L. Carter and Edward E. Adams. 1 Barry Cushman, The Hughes-Roberts Visit, 15 GREEN BAG 2D 125 (2012). 2 West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). 3 Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936). 4 See Laura Kalman, The Constitution, the Supreme Court, and the New Deal, 110 AM. HIST. REV. 1052 (2005) (compiling articles). 5 Id. (same). 6 Felix Frankfurter, Mr. Justice Roberts, 104 U. PA. L. REV. 311 (1955). 15 GREEN BAG 2D 375 Edward L. -
Book Review: the Brandeis/Frankfurter Connection
BOOK REVIEW THE BRANDEIS/FRANKFURTER CONNECTION; by Bruce Allen Murphy. New York: Oxford University Press, 1982. 473 pp. $18.95. Reviewed by Judith Resnikt Shouldl be more serviceableto the State, ifI took an employment, where function would be wholly bounded in my person, and take up all my time, than I am by instructing everyone, as I do, andin furnishing the Republic with a great number of citizens who are capable to serve her? XENoHON'S M EMORABIL bk. 1, ch. 6, para. 15 (ed 1903), as quoted in a letter by Louis . Brandeis to Felix Frankfurter(Jan. 28, 1928).' I THE RELATIONSHIP BETWEEN JUSTICE BRANDEIS AND PROFESSOR FRANKFURTER From the same bits of information-letters, fragmentary notes, in- dividuals' recollections, newspaper and historical accounts-several different stories can emerge, as the storyteller brings to the materials his or her own personal concerns and hypotheses. From reading some of the correspondence between Justices Brandeis and Frankfurter,2 biog- raphies of each,3 and assorted articles about them and the times in which they lived,4 I envision the following exchanges between Brandeis and Frankfurter: The year was 1914. A young law professor, Felix Frankfurter, went to t Associate Professor of Law, University of Southern California Law Center. B.A. 1972, Bryn Mawr College; J.D. 1975, New York University School of Law. I wish to thank Dennis E. Curtis, William J. Genego, and Daoud Awad for their helpful comments. 1. 5 LETTERS OF Louis D. BRANDEIS 319 (M. Urofsky & D. Levy eds. 1978) [hereinafter cited as LETTERS]. 2. E.g., 1-5 LETTERs, supra note 1. -
Abington School District V. Schempp 1 Ableman V. Booth 1 Abortion 2
TABLE OF CONTENTS VOLUME 1 Bill of Rights 66 Birth Control and Contraception 71 Abington School District v. Schempp 1 Hugo L. Black 73 Ableman v. Booth 1 Harry A. Blackmun 75 Abortion 2 John Blair, Jr. 77 Adamson v. California 8 Samuel Blatchford 78 Adarand Constructors v. Peña 8 Board of Education of Oklahoma City v. Dowell 79 Adkins v. Children’s Hospital 10 Bob Jones University v. United States 80 Adoptive Couple v. Baby Girl 13 Boerne v. Flores 81 Advisory Opinions 15 Bolling v. Sharpe 81 Affirmative Action 15 Bond v. United States 82 Afroyim v. Rusk 21 Boumediene v. Bush 83 Age Discrimination 22 Bowers v. Hardwick 84 Samuel A. Alito, Jr. 24 Boyd v. United States 86 Allgeyer v. Louisiana 26 Boy Scouts of America v. Dale 86 Americans with Disabilities Act 27 Joseph P. Bradley 87 Antitrust Law 29 Bradwell v. Illinois 89 Appellate Jurisdiction 33 Louis D. Brandeis 90 Argersinger v. Hamlin 36 Brandenburg v. Ohio 92 Arizona v. United States 36 William J. Brennan, Jr. 92 Arlington Heights v. Metropolitan Housing David J. Brewer 96 Development Corporation 37 Stephen G. Breyer 97 Ashcroft v. Free Speech Coalition 38 Briefs 99 Ashwander v. Tennessee Valley Authority 38 Bronson v. Kinzie 101 Assembly and Association, Freedom of 39 Henry B. Brown 101 Arizona v. Gant 42 Brown v. Board of Education 102 Atkins v. Virginia 43 Brown v. Entertainment Merchants Association 104 Automobile Searches 45 Brown v. Maryland 106 Brown v. Mississippi 106 Bad Tendency Test 46 Brushaber v. Union Pacific Railroad Company 107 Bail 47 Buchanan v. -
Supreme Court of the United States Washington, D.C
Supreme Court of the United States Washington, D.C. Pointe-au-Pic, Canada, July 25, 1928. My dear George: I have your letter of July 3d, and am delighted to read it and to follow you and Mrs. Sutherland in your delightful journey through Italy. My wife’s sister, Miss Maria Herron, has done a great deal of traveling in Italy and elsewhere, and she says that you have marked out for yourselves one of the most delightful trips in the World. I have been through part of it myself, and therefore know enough to congratulate you. I sincerely hope that you find Cadenabbia just as good now as it was when you wrote the letter, and that you find that your rest is accomplishing the result that your doctor had in mind. Of course we are most anxious about the election of Hoover, and I am bound to say that I think the Republicans feel that the chances are strongly in favor of Hoover’s election, but I don’t know how wisely they judge. There are so many cross currents in the election that it is hard to calculate what their effect will be, but as the campaign opens, it is fairly clear that the farm question is entirely out of the picture. Even old Norris says that they can not have another party, and the consequence is that if Smith is going to win, he has got to do it with New York, New Jersey, Connecticut and Massachusetts, and by a retention of all the southern States. -
Supreme Court Justices
The Supreme Court Justices Supreme Court Justices *asterick denotes chief justice John Jay* (1789-95) Robert C. Grier (1846-70) John Rutledge* (1790-91; 1795) Benjamin R. Curtis (1851-57) William Cushing (1790-1810) John A. Campbell (1853-61) James Wilson (1789-98) Nathan Clifford (1858-81) John Blair, Jr. (1790-96) Noah Haynes Swayne (1862-81) James Iredell (1790-99) Samuel F. Miller (1862-90) Thomas Johnson (1792-93) David Davis (1862-77) William Paterson (1793-1806) Stephen J. Field (1863-97) Samuel Chase (1796-1811) Salmon P. Chase* (1864-73) Olliver Ellsworth* (1796-1800) William Strong (1870-80) ___________________ ___________________ Bushrod Washington (1799-1829) Joseph P. Bradley (1870-92) Alfred Moore (1800-1804) Ward Hunt (1873-82) John Marshall* (1801-35) Morrison R. Waite* (1874-88) William Johnson (1804-34) John M. Harlan (1877-1911) Henry B. Livingston (1807-23) William B. Woods (1881-87) Thomas Todd (1807-26) Stanley Matthews (1881-89) Gabriel Duvall (1811-35) Horace Gray (1882-1902) Joseph Story (1812-45) Samuel Blatchford (1882-93) Smith Thompson (1823-43) Lucius Q.C. Lamar (1883-93) Robert Trimble (1826-28) Melville W. Fuller* (1888-1910) ___________________ ___________________ John McLean (1830-61) David J. Brewer (1890-1910) Henry Baldwin (1830-44) Henry B. Brown (1891-1906) James Moore Wayne (1835-67) George Shiras, Jr. (1892-1903) Roger B. Taney* (1836-64) Howell E. Jackson (1893-95) Philip P. Barbour (1836-41) Edward D. White* (1894-1921) John Catron (1837-65) Rufus W. Peckham (1896-1909) John McKinley (1838-52) Joseph McKenna (1898-1925) Peter Vivian Daniel (1842-60) Oliver W. -
The Appointment of Hugo L. Black
The University of Chicago Law Review VOLUME 41 NUMBER 1FALL 1973 A Klansman Joins the Court: The Appointment of Hugo L. Black William E. Leuchtenburgj I. THE NOMINATION On August 12, 1937, Franklin Delano Roosevelt, rebounding from the worst setback of his long Presidency, took the first of a series of steps toward creating what historians would one day call "the Roose- velt Court." Galling defeat had come less than a month before when the Senate had killed his scheme to add a Justice to the Supreme Court for every member aged seventy or over who did not resign or retire. The original plan would have allowed the President to name as many as six new Justices, but after a bitter 168-day fight, the measure was buried, amid loud rejoicing from FDR's opponents. Roosevelt was not finished yet, however, for one legacy of the protracted struggle was the creation of a vacancy on the Supreme Court, and it was the President's prerogative to nominate a successor. The choice he finally made would trigger an acrimonious controversy and would have a momentous im- pact on the disposition of the Court. The vacancy resulted, at least indirectly, from Roosevelt's "Court- packing" plan. The President had advanced his bold proposal in February because he was frustrated by the performance of the Supreme Court, particularly the conservative "Four Horsemen"--Willis Van t De Witt Clinton Professor of History, Columbia University. This article is an expanded version of a paper presented as the second annual William Winslow Crosskey Lecture in Legal History at The University of Chicago Law School on February 28, 1973. -
The Rehnquist Court and Beyond: Revolution, Counter-Revolution, Or Mere Chastening of Constitutional Aspirations?
THE REHNQUIST COURT AND BEYOND: REVOLUTION, COUNTER-REVOLUTION, OR MERE CHASTENING OF CONSTITUTIONAL ASPIRATIONS? THE PROCESSES OF CONSTITUTIONAL CHANGE: FROM PARTISAN ENTRENCHMENT TO THE NATIONAL SURVEILLANCE STATE Jack M. Balkin & Sanford Levinson* I. INTRODUCTION: PARTISAN ENTRENCHMENT Five years ago, we offered a theory of how constitutional change and constitutional revolutions occurred, which we called the theory of “partisan entrenchment.”1 Much has happened in the subsequent half-decade, and we are grateful for this opportunity to offer an update of our thoughts, together with some amendments to our initial formulation. By far the most important amendment is to draw out in more detail how the development of constitutional doctrine by courts occurs within the broader framework of changes in constitutional regimes, which include changes in institutions, legislation, and administrative regulation. The forces of democratic politics drive these regime changes, and the major actors are not courts but the political branches. Although courts may initially resist these changes, in the long run, they cooperate with them, shape their contours, and legitimate them through the development of constitutional doctrine. In the second half of this essay, we describe an emerging regime of institutions and practices that we call the “National Surveillance State,” which, we think, represents the major constitutional development of our era. The National Surveillance State responds to the particular needs of warfare, foreign policy, and domestic law enforcement in the twenty-first century. That such a state is emerging has become clear in the wake of 9/11 and debates about the War on Terror. However, it is not limited to the * Knight Professor of Constitutional Law and the First Amendment, Yale Law School.