three rime~ ~1 YCll Inc, with "ffices institution"i Prrrrllltn1 Racc; The JSSllt.' Electronic Access IJ,J:'str;1Ct InForJ11,1l!on Foe inFormation on full-text Back Issues ,11''' a""ilebk from dw MA 021 485020. the OJ III wntln\! from the holder. Authonz,lt"ln holder for iibI;lries Olld othcr COfl[aCr rhe AC3dernic ,1nd Scitncc, 350 Nhn M;1iden, MA 02I48, and of this ABC-Clio, Aca- demic Search Premier: America.' and Abs/racls Science Abstracts; CatchWord, EBSCO Academic Search Premier, EBSCO Abs/raets, [ndex 10 Periodicals and Books; Inler­ national Political Science Ahstracts, .!STOR, Cenler Artic/eFirsl: Online Cenler Index 10 Ahstracts. SUPREME COURT HISTORI CAL SOCIETY HONORARY CHAIRMAN William H. Rehnquist CHAIRMAN EMERITUS Dwight D. Opperman CHAIRMAN Leon Silverman PRESIDENT Frank C. Jones VICE PRESIDENTS Vincent C. Burke, Jr. Dorothy Tapper Goldman E. Barrett Prettyman, Jr. SECRETARY Virginia Warren Daly TREASURER Sheldon S. Cohen TRUSTEES George R. Adams Robert A. Gwinn Leon Polsky J. Bruce Alverson Benjamin H ei neman Harry M. Reasone r Peter G. Angelos AE. Dick Howard Bernard Reese Viccor Battaglia Robb M. Jones Charles B. Renfrew Herman Belz Randall Kennedy William Bradford Reynolds Barbara A Black Peter A. Knowles Sally Rider Hugo L. Black, Jr. Philip Allen Lacova ra H arvey Ri sh ikof Frank Boardman Gene W Lafitte Jonathan C. Rose Nancy Brennan Ral ph 1. Lancaster, Jr. Teresa Wynn Roseboro ugh Vera Brown LaSalle Le ffa II Jay Sekulow Wade Burger Jerome B. Li bin Jero ld S. Solovy Vincent C. Burke III Warren Lightfoot Kenneth Starr Edmund N. Carpenter 11 Maureen E. Maho ney Cathleen Douglas Scone Andrew M. Coats Mrs. Thurgood Marshall Larry Thompson Charles J. Cooper Thurgood Marshall, Jr. Seth P. Waxman Michael A Cooper Stephen R. McAllister Agnes N. WilJiams Waltet Dellinger Vincent L. McKusick Lively Wilson George Didden III Gregory Michael W. fo ster Wollen Jam es C. Duff Joseph R. Moderow Donald Wright William Edlund Michael Mone James D. Ellis Lucas Morel Robert E. Juceam Miguel A Es trada Charles Morgan General Cownsel Charles O. Galvin James W Morris, III David T. Pride frank B. Gilbert John M. Nannes ExeCU live Dimlor James L. Goldman James B. O'Hara Katl1leen Shurtleff John D. Gordan, III Deva l Patrick Assislanl Direclor Fra nk Gundlach Carter G. Phillips JOURNAL OF UP EME o R HIS ORY 20 5 vol. 30 no. 1 PUBLICATIONS COMMIHEE E. Barretr Chairman Donald B. LoUls R. Cohen Charles J. Lucas Morel Luther T Munford Demd O'Brien Carter Teresa Michael Russ D. Grier Jr. BOARD OF EDITORS Melvin L Chamnan Herman Bdz J. Bodenhamer Kermit Hall LllJra Kalman David Michael Parrish EDI10RIAl STAFF Clare Cushman, Edllor PatnCla R. Evans, Rmarcf;er P-;;.blij;hini!> !}os!on, "t.'·'."o·'"n Ox!(xd, UK GENERAL STATEMENT ,s dedicated to the collection and of the of Columbia ,(1 )974, it was founded by chairman. educationa I programs, historical electronic rmetria!s, and by the awareness of the Court's contribut!ons well own eciuotlonal websltc t(dehers "bout ,mportant which appears In promote the formative decade between 1789 "!ld 1800 because records from Or The seven out of the Generat and rettred Milestones to Equality Court Cases for and About School Students ,md Black White and B"own: The Landmark School co tax deductible Internal Revenue Code. JOURNAl OF Su REM COU T HISTO y 05, v 1, 30, n , ! INTRODUCTION Melvill L ARTICLES Court i\dvocacv In Early Nineteenth David C Frederick The Case of the Creative Advocate Louis D. Brandeis: Advocate Before and On the Melvin L 31 \Vomen as Court 1879-1979 L Clark 47 Oral oEa Court Bar G 68 CONTRIBUTORS PHOTO CREDITS 83 2005, br Hiscorical 1059-4329 Introduction Melvin I. Urofsky Each year the Court Historical thored on the famous lprnm'/sp Cases. sponsors lecture series at the Court. The audience also witnessed a marvelous The are, of course, students of the that since the man who Court and its history, and the Society is pleased introduced Professor Lurie had been a class­ and honored that the Justices in these mate of his at Harvard-Justice David Souter. the lecturers and their While no one would claim that the lectures topics. As someone who has participated in in the series a portraitofad­ more than one of these I can assure vocacy before the nation's highest court, you that it is a and an audience un­ of lawyers or of like any other. An added bonus is that the at a certain time. Journal then publishes these talks, provid­ David Frederick's lecture took us back to a time access to a wider audience of men and when the Court imposed no time limits on oral women, and lay persons, teachers and arguments; men, and women, would students, who are interested in the Court's crowd into the old courtroom in the basement of the when orators such as Daniel This past year's was before Webster a case. In modern the Court, and as you can see. I was among the it was the hottest ticket in town. people fortunate to be invited to deliver a talk. Starting in 1879, women in the audience As some ofyou may know, 1am now also to see women at the bar. Mary writing a new ofLouis D. Clark's piece on women before the so the lecture was doubly welcome; in it I was Court for the ensuing century not only shows able to some of the newer ideas I have some of the that took but also had since the research. role in American My friend Jonathan Lurie's paper de­ and in the legal profession rived from a book that he coau­ 10 v vi JOURNAL OF SUPREME COURT HISTORY Finally, no effort is made to often take their cases up to the MarbJe Palace coordinate the annual lecture with the se­ on this year it worked out that way. Judge Although we have a more unified theme John Roberts about the art of oral ad­ than is usual in our there is still that vocacy, and how the art has enemized the great variety that marks the articles we publish, Court bar, those who reg­ a diversity that truly reflects the very history uiarly in the federal courts and who of the Court itself. Supreme Court Advocacy in the Early Nineteenth Century DAVID FREDERICK* The early nineteenth was transformative of the Court's Yet understanding those fundamental changes some appreciation of practice before the Court in the late and the developments in the nineteenth century produced that are still felt In this first half-century or so of the Court's and occurred in oral argument practice than in any other Those are best understood ref­ ted to oral argument and to rest erence to three basic themes. One is the ef­ on written arguments in briefs. Those develop­ fect of the Court in adopting the of ments launched the modern trend of the Court the King's Bench in one of its earliest sets of on written briefs with more limited oral rules. That decision started the Court down arguments. the path of extended oral arguments. A sec­ ond theme is the retrenchment from that prac­ late Eighteenth-Century Practice tice, and the evolution toward the use of written briefs to present arguments in the In the first year and a half of the case. This trend toward the end of the the rules of led to Marshall Court era, which witnessed some of ,much among The the most celebrated advocates and oral argu­ Constitution had created the Court, but the ments in the Court's history, In oral Framers had left vague the contours ofits prac- argument in that The vations may be made about the be­ tween political rhetoric and oral argument style tion with the Court asking for clarification as 111 Finally, in the to which procedural rules attorneys should fol­ the Court institutionalized low. On 8, I the Court rpo,v",n several important rules to limit the time allot- by an order that "this court 2 JOURNAL OF SUPREME COURT HISTORY the practice of the courts of king's succinct. A "declaration" contain bench, and in as afford- a few sentences about the of the case and outlines for the practice of this court; and the basic issue presented in the appeal.9 that they wilt, from time to make such al­ For the modern American terations therein as circumstances may render schooled in the traditions of voluminous writ­ necessary.,,3 ten briefs, such a practice would seem highly In a way, this was a curious choice. Ini­ inefficient and impracticable, The rationale for the Court had shown a to sort practice in has been that the entire out procedural details through litigation. But judicial process is completely open to public that proved the varieties the learns about of procedural that arose in the case is in open court, which more than outpaced the Court's ability to re­ thus diminishes the possibility ofout-of-court fine the rules of practice through common-law influence, But in an era of limited communi­ methods. In adopting rules at the Bench that of as a model, the Court a de­ To With, access to parture from what had been the apparent aim reported decisions was ditficult. The second of the Judiciary Act of 1789 to place a more volume of Dallas's reports of the Court's native stamp on legal in the earliest Term did not appear until I the new ;-..Jation.