Journal of Supreme Court History SUPREME COURT HISTORICAL SOCIETY WARREN E. BURGER Chief Justice 1969-1986 Journal of Supreme Court History PUBLICA TIONS 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. U rofsky, Chairman HennanBelz Craig Joyce David O'Brien David J. Bodenhamer Laura Kalman Michael Parrish Kermit Hall MaevaMarcus Philippa Strum MANAGING EDITOR Clare Cushman CONSULTING EDITORS Kathleen Shurtleff Patricia R. Evans James J. Kilpatrick Jennifer M. Lowe DavidT.Pride Supreme Court Historical Society Board of Trustees Honorary Chairman William H. Rehnquist Honorary Trustees Harry A. Blackmun Byron R. White Chairman President DwightD.Opperman Leon Silverman Vice Presidents Vincente. Burke,lr. Frank e. Jones Dorothy Tapper Goldman E. Barrett Prettyman, Jr. Secretary Treasurer Virginia Warren Daly Sheldon S. Cohen Trustees George R. Adams KennethS. Geller Stephen W. Nealon Victor Battaglia FrankB. Gilbert Gordon O. Pehrson Helman Belz John D. Gordan III Leon Polsky Barbara A. Black Geoffreye. Hazard, Jr. Charles B. Renfrew HugoL. Black,lr. Judith Ri chards Hope Wi II iamB radford Reynolds Vera Brown Ruth lnsel John R. Ri sher, Jr. Wade Burger WilliamE. Jackson Harvey Ri shikof Patricia Dwinnell Butler Robb M. Jones WilliamP. Rogers Benjamin R. Ci viletti JamesJ. Kilpatrick Jonathan e. Rose Andrew M. Coats Peter A. Knowles Jerold S. Solovy William T. Coleman, Jr. Philip Allen Lacovara Kenneth Starr F. Elwood Davis Ralph l. Lancaster, Jr. Cathleen Douglas Stone George Didden III JeromeB. Libin Agnes N. Williams Charlton Dietz Maureen E. Mahoney W. Foster Wollen John T. Dolan Howard T. Markey Jamese.Duff Mrs. Thurgood Marshall Robert E. J uceam William Edlund Thurgood Marshall , Jr. General Counsel Johne.Elam Vincent L. McKusick JamesD.Ellis Francis J. McNamara, Jr. David T. Pride Thomas W. Evans Joseph R. Moderow Executive Director Wayne Fisher James W. Morris, III Kathleen Shurtleff CharlesO.Galvin John M. Nannes Assistant Director General Statement TheSupreme 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 to the Court's history, and publishing books and other materials which increase public awareness of the Court's contribution to our nation's rich constitutional heritage. Since 1975, the Society has been publishing a Quarterly 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 collection of scholarly articles on the Court's history entitled the Yearbook, which was renamed the Journal of Supreme Court History in 1990 and became a semi-annual publication in 1996. The Society initiated the Documentary History of the Supreme Courtofthe United States, 1789-1800 in 1977 with a matching grant from the National Historical Publications and Records Commission (NHPRC). The Supreme Court became a cosponsor in 1979. Since that time the project has completed five of its expected eight volumes, with a sixth volume to be published in 1998. The Society also copubl ishes Equal Justice Under Law, a I 65-page illustrated history ofthe Court, in cooperation with the National Geographic Society. In 1986 the Society cosponsored the 300-pageIllustrated History ofthe Supreme Court of the United States. It sponsored the publication of the United States Supreme CourtIndex to Opinions in 1981, and funded a ten-year update of that volume that was published in 1994. The Society has also developed a collection of illustrated biographies of the Supreme Court Justices which was published in cooperation with Congressional Quarterly, Inc., in 1993. This 588 page book includes biographies of all 108 Supreme Court Justices and features numerous rare photographs and other illustrations. Now in its second edition, it is titled The Supreme Court Justices: Illustrated Biographies, 1789-1995. In addition to its research/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 substantially 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 mi Ilion annual visitors. The Society also funds outside research, awards cash prizes to promote scholarship on the Court and sponsors or cosponsors various lecture series and other educational colloquia to further public understanding of the Court and its history. The Society ends 1998 with approximately 5,000 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. R~quests for additional information should be directed to the Society's headquarters at 111 SecondStreet,N.E., Washington, D.C. 20002, Tel. (202) 543-0400, orto the Society's website at www.supremecourthistory.org. he Society has been determined eligible to receive tax deductible gifts under Section 501 (c) (3) under lhelnternal Revenue Code. Journal of Supreme Court History 1998, Vol. II Introduction Page Melvin I. Urofsky Letter to the Editor Milton C. Handler Articles "Presenting the Case of the United States As It Should Be": The Solicitor General in Historical Context Seth P. Waxman 3 Constitutional Change in the United Kingdom: British Solutions to Universal Problems Alexander Andrew Mackay /niine 26 Supreme Court LawClerk, 1957-1958,A Reminiscence Alan C. Kohn 40 Wheaton v. Greenleaf A (Story) Tal e of Three Reporters Stephen R. McAllister 53 Race, Marriage, and the Supreme Court from Pace v. Alabama ( 1883) to Loving v. Virginia ( 1967) Peter Wallenstein 65 Antitrust and Baseball: Stealing Holmes Kevin D. McDonald 88 Justice Levi Woodbury: A Reputational Study William D. Bader, Roy M. Mersky 129 Beyond the Bottom Line: The Value of Judicial Biography Melvin I. Urofsky 143 Judicial Bookshelf D. Grier Stephenson, Jr. 157 Contributors 182 Photo Credits 183 Copyright 1998, by The Supreme Court Histori cal Society I 1 I Second Street, N.E. Was hington, D.C., 20002 ISBN 0-914785-17-6 Introduction Melvin I. Urofsky Chairman, Board of Editors 'fhis issue of the Journal of Supreme Court on the historic functions and role of his office, History is the last in the old format Starti ng in and the other by Lord Irvine, the Lord High 1999, the Journal will publish three times a year, Chancellor of England, on how constitutional providing our readers with a greater wealth of change in Great Britain operates. material on the history of the Supreme Court, Justices and cases are the meat and pota­ and scholars a larger venue in which to publish toes of Supreme Court history (with out indi­ their work, For this expansion we happily ac­ cating which is the meat), and here we have knowledge the response of our readers to the both. William Bader and Roy Mersky take a efforts we have made over the past few years stab at rehabilitating the reputation of Levi to upgrade the quality of the Journal, and to Woodbury, and the reader will draw his or her secure a broader variety of materials, Our goal own conclusion as to how successful they are. is to become the premier publication dealing In my piece, I suggest that judicial biography is with the history of the Supreme Court, and to a more important element of judicial history than make this publication part of the larger educa­ some scholars are willing to credit. tional mission which is the primary purpose of In terms of cases, we have both real deci­ the Supreme Court Historical Society, sions as well as ones that might have been. This issue showcases the large variety of After the exciting 1998 baseball season (yes, materials which we now get on a regular basis, scholars, lawyers and judges also follow the Two articles in an earlier issue on the landmark national pastime), we should recall that base­ case of Euclid v, Ambler Realty (1926) elicited ball is no stranger to the Court, and that one of a letter from Milton Handler recalling his expe­ the great exemptions to antitrust law was rience with that case as a clerk to Mr. Justice forged, not in Congress, but by the judiciary. Stone. We have another reminiscence, by Alan We can also see how the Justices handled one Kohn, of his year as a clerk, albeit a generation of the most delicate and explosive issues of the later. time, miscegenation, in Peter Wallenstein's ex­ Lectures, which often provide the basis for ploration of the Court's decisions from 1883 to our articles, contributed two important its landmark ruling in Loving v. Virginia (1967). one by the Solicitor General, Seth P. Waxman, And in a bit of whimsey based on history, Stephen McAllister looks at the politics involv­ Court. ing the old institution of Court Reporter. Thank you all, contributors and readers, for Finally, to remind us that both the quantity helping us to grow. We believe the Journal of and quality of writing on the Court's history Supreme Court History serves a useful and has expanded, Grier Stephenson, after recuper­ unique function, and all of us here are dedi­ ating from marrying off his daughter, wrote his cated to making that work a success.