Journal of Supreme Court History THE SUPREME COURT HISTORICAL SOCIETY THURGOOD MARSHALL Associate Justice (1967-1991) Journal of Supreme Court History PUBLICATIONS COMMITTEE E. Barrett Prettyman, Jr. Chairman Donald B. Ayer Louis R. Cohen Charles Cooper Kenneth S. Geller James J. Kilpatrick Melvin I. Urofsky BOARD OF EDITORS Melvin I. Urofsky, Chairman Herman Belz Craig Joyce David O'Brien David J. Bodenhamer Laura Kalman Michael Parrish Kermit Hall Maeva Marcus Philippa Strum MANAGING EDITOR Clare Cushman CONSULTING EDITORS Kathleen Shurtleff Patricia R. Evans James J. Kilpatrick Jennifer M. Lowe David T. Pride Supreme Court Historical Society Board of Trustees Honorary Chairman William H. Rehnquist Honorary Trustees Harry A. Blackmun Lewis F. Powell, Jr. Byron R. White Chairman President DwightD.Opperman Leon Silverman Vice Presidents VincentC. Burke,Jr. Frank C. Jones E. Barrett Prettyman, Jr. Secretary Treasurer Virginia Warren Daly Sheldon S. Cohen Trustees George Adams Frank B. Gilbert Stephen W. Nealon HennanBelz Dorothy Tapper Goldman Gordon O. Pehrson Barbara A. Black John D. Gordan III Leon Polsky Hugo L. Black, J r. William T. Gossett Charles B. Renfrew Vera Brown Geoffrey C. Hazard, Jr. William Bradford Reynolds Wade Burger Judith Richards Hope John R. Risher, Jr. Patricia Dwinnell Butler William E. Jackson Harvey Rishikof Andrew M. Coats Rob M. Jones William P. Rogers William T. Coleman,1r. James 1. Kilpatrick Jonathan C. Rose F. Elwood Davis Peter A. Knowles Jerold S. Solovy George Didden IIJ Harvey C. Koch Kenneth Starr Charlton Dietz Jerome B. Libin Cathleen Douglas Stone John T. Dolan Maureen F. Mahoney Agnes N. Williams James Duff Howard T. Markey LivelyWilson William Edlund Mrs. Thurgood Marshall W. Foster Wollen John C. Elam Thurgood Marshall, Jr. RobertE. Juceam James D. Ellis VincentL. McKusick General Counsel Michela English Francis 1. McNamara, Jr. Thomas W. Evans Joseph R. Moderow David T. Pride Wayne Fisher James W . Morris Executive Director Charles O. Galvin John M. Nannes Kathleen Shurtleff Kenneth S. Geller PhilC.Neal Assistant Director Journal of Supreme Court History 1997, VoL II page Introduction Melvin 1. Urofsky Articles The High Court of Australia Michael Hudson McHugh 2 The Virtue of Defeat: Plessy v. Ferguson in Retrospect Clarence Thomas 15 In the Shadow of the Chief: The Role of the Senior Associate Justice Sandra L. Wood 25 William Paterson and the National Jurisprudence: Two Draft Opinions on the Sedition Law of 1798 and the Federal Common Law Williamjames Hull Hoffer 36 Prigg v. Pennsylvania: Understanding Joseph Story's Pro-Slavery Nationalism Paul Finkelman 51 Abraham Lincoln's Appointments to the Supreme Court: A Master Politician at his Craft Michael A. Kahn 65 Advocates at Cross-Purposes: The Briefs on Behalf of Zoning in the Supreme Court ~~h~ ~ "Compelled by Conscientious Duty": Village of Euclid v. Ambler Realty Co. as Romance Michael Allan Wolf 88 "Dear Mr. Justice": Public Correspondence with Members of the Supreme Court John W Johnson 101 Personal Rights, Public Wrongs: The Gaines Case and the Beginning of the End of Segregation Kevin M. Kruse 113 In Retrospect The Life of John Marshall Revisited Alexander Wohl 131 Book Reviews Review of Mark V. Tushnet, Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936-1961and Making Constitutional Law: Thurgood Marshall and the Supreme Court, 1961-1991 Elizabeth Garrett 140 The Judicial Bookshelf D. Grier Stephenson, Jr. 150 New books reviewed in this issue: Justice Antonin Scalia and the Conservative Revival Richard A. Brisbin, Jr. Battles on the Bench: Contlict Inside the Supreme Court Philip 1. Cooper Beyond the Burning Cross: The First Amendment and the LandmarkR.A.V. Case Edward 1. ClealY The Great ChiefJustice: John Marshall and the Rule of Law Charles F. Hobson New Deal Justice: The Constitutional Jurisprudence of Hugo L. Black, Felix Frankfurter, and RobertH. Jackson Jeffrey D. Hockett The Selling of Supreme Court Nominees John Anthony Maltese Justice Sandra Day O'Connor: Strategist on the Supreme Court Nancy Maveety The Unpublished Opinions ofthe Rehnquist Court Bernard Schwartz John Marshall: Definerofa Nation Jean Edward Smith Shaping America: The Politics of Supreme CourtAppointments George L. Wats on and John A. Stookey Contributors 170 Photo Credits 171 Copyright 1997, by The Supreme Court Hi storica l Society II I Second Street, N.E. Wash ington , D.C., 20002 ISBN 0-91 478S-IS-X Introduction Melvin I. U rofsky Chairman, Board of Editors This issue of the Journal covers a wide other article dealing with constitutional courts variety of topics, and well represents the grow­ in other countries, this one from the Hon. ing interest in Supreme Court history as well as Michael Hudson McHugh, a member of the the varied ways in which that interest is pur­ High Court of Australia. The germ of this ar­ sued. D. Grier Stephenson's "Judicial Book­ ticle came a few years ago when Justice shelf' covers a wide range of books on the McHugh hosted my wife and me at a dinner in Court, and Elizabeth Garrett, a former clerk to Sydney, and we started talking about the dif­ Justice Thurgood Marshall, reviews Mark ferences and similarities between the courts of Tushnet's two-volume biography of the Jus­ the two countries. We hope to be able to con­ tice. As a comparison of how history was done tinue this series in the future with articles on "then" and how it is done "now," Alexander other constitutional courts in order to under­ Wohl contributes another of our "In Retro­ stand the unique role that the Supreme Court spect" pieces with a review of Albert plays in our political-legal system, a role unique Beveridge's monumental biography of Chief among the developed nations. Justice John Marshall. The issue is rounded out by pieces on what Interestingly, and with practically no assis­ might have become the Court's first major state­ tance from the editors, some of the articles we ment on the First Amendment, a hitherto little received relate well to one another. Paul known set of draft opinions in the William Pater­ Finkleman's piece on the Prigg case details one son papers, edited by Williamjames Hull Hoffer, of the Court's earliest efforts to deal with the a graduate student at the Johns Hopkins Uni­ growing problem of slavery; a half-century versity; a look at the mail received by Justice later the Court, as Justice Thomas shows in Black in response to his dissent in Tinker v. his discussion of Plessy v. Ferguson, was Des Moines, by John Johnson, who has re­ still caught in the mindset of the nineteenth cently published a book on the case; Michael century; and then our student essay winner, Kahn's analysis of Lincoln's method of choos­ Kevin Kruse (a student of Richard Polenberg's ing Justices, and Sandra Wood's article on the at Cornell) details how the Court finally be­ senior Associate Justice, whose role and pow­ gan moving toward a modern view of the ers are often overlooked. Equal Protection Clause. Similarly, after we All told we are delighted with the variety of had asked Michael Wolf to reexamine the articles that scholars have been sending to us, landmark zoning case of Euclid v. Ambler, we and which we are able to present to you. If received Garret Power's analysis ofthe lawyer­ anyone asks about the state of Supreme Court ing in that case. history, the answer is that it is alive and thriv­ We are pleased and proud to present an- ing. The High Court of Australia Michael Hudson McHugh Introduction similarities and the remarkable similarities between the legislative powers specifically The High Court of Australia, like the granted to the federal legislatures of each Supreme Court of the United States, is the country, one would expect the roles of the guardian of the Constitution that creates it. two courts in their respective legal systems Each court is the creation of a federa l to be similar. Constitution that gives effect to the political Two factors have combined, however, to doctrine of the separation of legislative, make the roles ofthe Courts essentially different. executive and judicial power. Each Constitution The first is the existence of the Bill of Rights in vests specific heads of power in a federal the Constitution of the United States and the legislature consisting of a Senate and a House absence of a counterpart in the Austral ian of Representatives and leaves each state free Constitution. The second is that the High Court to legislate within its own domain except in is, but the Supreme Court is not, part of the cases where the Constitution has withdrawn legal system of the states that constitute the legislative power from the states. Each federation. As a resu It, the nature of the cases Constitution contains a Supremacy Clause that come before the two courts is on the whole that ensures that, in the case of conflict quite different. Unlike the Supreme Court, between federal and state legislative whose "docket" appears to be dominated by enactments, the federal enactment will prevail. issues concerning the Bill of Rights and the Each Constitution contains an Establishment interpretation of federal enactments, the High Clause, which are similarly worded. Given these Court's "docket" is dominated by appeals in HIGH C'OURTOF AUSTRALIA 3 The author, MiChael McHugh red), is a ce of the civil and criminal matters. The nature of the has produced, said the following: I High Court's work as an appellate court and the absence of a Bill of Rights in the Australian [C]lose adherence to legal reasoning is Constitution have also influenced that Court's the on ly way to maintain the confidence approach to the judicial process.