YEARBOOK 1987 ;UPREME COURT HISTORICAL SOCIETY OFFICERS Chief Justice Warren E. Burger (Retired), Honorary Chairman Kenneth Rush, Chairman Justin A. Stanley, President PUBLICATIONS COMMITTEE Kenneth S. Geller, Chairman Alice L. O 'Donnell E. Barrett Prettyman, Jr. Michael Cardozo BOARD OF EDITORS Gerald Gunther Craig Joyce Michael W McConnell David O'Brien Charles Alan Wright MANAGING EDITOR David T. Pride ASSOCIATE EDITORS Kathleen Shurtleff Barbara Lentz ABOUT THE COVER The cover photo for the 1987 Yearbook is a partial view of a painting entitled "Wash­ ington as Statesman at the Constitutional Convention" by Junius Brutus Stearns. The painting is part of the collection of the Virginia Museum of Fine Arts in Rich­ mond, Virginia. ACKNOWLEDGEMENT The Officers and Trustees of the Supreme Court Historical Society would like to thank the Charles Evans Hughes Foundation for its generous support of the publication of this Yearbook. YEARBOOK 1987 Supreme Court Historical Society Tributes to Associate Justice Lewis F. Powell, Jr. on the Occasion of His Retirement Justice Powell's Contributions to the Court 5 Byron R. White Lewis F. Powell and The American Bar Association 7 Bernard G Segal Justice Powell and the Eighth Amendment: The Vindication 10 of Proportionality George Clemon Freernan. Jr. Justice Powell and His Law Clerks 16 David L. Westin Obstacles to the Constitution 19 Warren E. Burger The Relationship of Church and State: The Views of the Founding Fathers 24 Kenneth W Starr Roger B. Taney and the Bank of Maryland Swindle 38 David GrimSled John Marshall's Selective Use of History in Marbury v. Madison 82 Susan Low Bloch and Maeva Marcus The Judicial Bookshelf 108 D Grier Stephenson. Jr. Contributors 127 Other Society Publications 128 Copyright © 1987, by The Supreme Court Historical Society llt Second Street, N.£., Washington, DC. 20002 ISBN 0-9J4785-00-3 The Supreme Court Historical Society BOARD OF TRUSTEES Chief Justice Warren E. Burger, Retired Honorary Chairman Kenneth Rush Justin A. Stanley Chairman President Alice L. O'Donnell First Vice President Vice Presidents Charles T. Duncan 1. Roderick HelJer III Frank B. Gilbert David Lloyd Kreeger Melvin M. Payne Virginia Warren Daly Peter A. Knowles Secretary Treasurer Trustees Noel J. Augustyn Francis R. Kirkham Ralph E. Becker Rex E. Lee Griffin B. Bell Sol M. Linowitz Hugo L. Black, Jr. Howard T. Markey Robert L. Breeden William Barnabas McHenry Vincent C. Burke, Jr. Richard A. Moore Gwendolyn Cafritz David A. Morse William T. Coleman, Jr. Norman E. Murphy Patricia Collins Dwinnell Dwight Opperman Kenneth S. Geller E. Barrett Prettyman, Jr. William T. Gossett William P. Rogers Erwin N. Griswold Walter S. Rosenberry III Lita Annenberg Hazen Fred Schwengel Joseph H. Hennage Bernard E. Segal William E. Jackson John C. Shepherd Frank C. Jones Leon Silverman Stanley N. Katz Chesterfield Smith Bruce E. Kiernat Obert C. Tanner James J. Kilpatrick M. Truman Woodward, Jr. Earl Kintner David T. Pride Acting Director Justice Powells Contributions to the Court by Byron R. White Lewis Powell was the sixth new Justice to come to the Court after my arrival, and Justice Anthony Kennedy, who just filled the seat vacated by Justice Powell, is the eleventh. Whenever a new Justice is confirmed, the Court becomes a different instrument than it was. Judging is not a mechanical process but, among other things, an amalgam of ability, experience, and substantive views about the nature and role of government in general and the judicial function in particular. Justices are never carbon copies of each other and usually not even close to that description. Inevitably, a new Justice will decide some cases differently from his predecessor, and therefore the Court's product will be different than it would have been without the change in membership. This becomes readily apparent as the months after the new Justice arrives slip by, although it takes years really to determine his or her impact on the work of the Court. William 0. Douglas told me soon after I came to the bench that it would be ten years before I had been "around the track" for the first ti me; only then would I have the feeling that most of the cases presented Associate Justice Byron R. White (above) shared the issues that I had judged before. Likewise, only bench with Associate Justice Powell from 1971 to 1987. after such a time can one assess with some confidence how a new Justice has influenced the Court. But it is certain that there will be a lawyer and Justice. He brought with him an significant change, both in the sense that cases immediate and present knowledge of the are not being decided as they would have been practice and could express very current views in the past and in the sense that there are from the "real world" of the law about the role departures from prior legal doctrine. of the courts, the processes of governi ng, and It thus goes without saying that Lewis the place of Constitutional restraints upon Powell left his imprint on the Court. The those processes. His views were more than a scholarly journals will be full of the details of distant memory of what non-judicial life and how and when this occured. I shall just say in thought is like. Judges perhaps can only general that his impact is as plainly discerna­ speculate about the impact of their decisions; ble, if not more so, than that of any of the but those who have recently been in the Justices arriving since 1962. Justice Powell, trenches have considerably more to say on this who came directly from the practice, was a subject. Lewis Powell said it in his characteris­ very intelligent, experienced and effective tically quiet but extremely effective way, per- 6 YEARBOOK 1987 haps more effectively than ifhe had come from means, but over time, will have enormous ten or fifteen years of service as a federal or influence on the way the law develops. This is state judge. not to disparage the value of judicial experi­ Justice Powell's work on the Court again ence; those with it in many ways "hit the illustrated what history has time and again ground running" when they come here. They revealed - that prior judicial experience is not are not strangers to judging, and they normally a prerequisite for outstanding performance on arrive with mature and convincing views on the Supreme Court. Felix Frankfurter's semi­ important issues. But this does not gainsay the nal treatment of the issue, 105 University of distinctive contributions that Lewis Powell Pennsylvania Law Review 781 (1957), as well as made to the Court: distinctive in important the contributions of others, makes this very part because he was fresh from the un­ clear. Moreover, those who are nominated cloistered, relatively unstructured, general directly from the practice - in anyone of its practice of the law. many manifestations - may well exert an Of course, I do not mean to ignore Justice influence different from those with years of Powell's personal traits, for he was, and is, service on the bench behind them. This is highly thought of by all of us, and for good especially true if the nominee's experience, as reason. He was a very enjoyable colleague, one Lewis Powell's was, is rich and varied. whom I sought to spend time with, whether at Justice Powell is the perfect example of why lunch, in the office, or elsewhere. I miss him for Presidents not only should not confine their those reasons, bu t also for his views that were choice of Justices to those withjudiciaJ experi­ molded by a lifetime of experience in practice, ence, but should instead affirmatively strive dealing directly wi th those considerations that not to do so-to make sure that new arrivals on determine the quality of the country's exist­ the Court include those fresh from the practice ence. I'm sure he brought to us something that and hopefully more nearly reflecting the views might have been lost had he been on the bench of society, which, not in the short run by any for years on end before he arrived here. Lewis E Powell And The American Bar Association by Bernard G. Segal In my initial draft of this article, I briefly summarized Justice Lewis F. Powell's more than 15 years on the Supreme Court as one of the most outstanding and highly regarded Justices in our nation's history. However, I then learned that Justice Byron R. White had agreed to submit an article on that subject for this issue of the Yearbook, and certainly no one is more qualified than he to do so. Accordingly, I proceed to my specific assignment. Born in Suffolk and reared in Richmond, Virginia, after a brilliant scholastic record in college, where he won high honors, including election to Phi Beta Kappa, and at law school, graduating first in his class, Justice Powell earned his LL.M. degree at Harvard, promptly after which he embarked upon his career as a practicing lawyer. His practice developed to be as extensive and diversified as it was efficient and effective. As a member of a leading law firm in Rich­ mond, he represented a wide assortment of individuals and corporations, as well as civic and charitable groups. He excelled in many Bernard G. Segal areas of practice having a very high reputation as a courtroom advocate at both trial and appellate levels. I had occasion, from time to been one of the most effective, most dedicated, time, to work with him directly, sometimes and most beloved Presidents and Presidents­ both of us representing a client in the same Elect the Association has ever had.