Journal of Supreme Court History 1992 YEARBOOK OF THE SUPREME COURT HISTORICAL SOCIETY WILLIAM PATERSON Associate Justice (1793-1806) Journal of Supreme Court History 1992 YEARBOOK OF THE SUPREME COURT HISTORICAL SOCIETY WILLIAM PATERSON Associate Justice (1793-1806) Journal of Supreme Court History OFFICERS Warren E. Burger Chief Justice ofthe United States (1969-1986) Honorary Chairman Erwin N. Griswold, Chairman Leon Silverman, President PUBLICATIONS COMMITTEE Kenneth S. Geller, Chairman Donald B. Ayer John D. Gordan, III Louis R. Cohen Michael H. Cardozo Philip B. Kurland BOARD OF EDITORS Michael H. Cardozo, Chairman Thomas Baker Walter Gellhorn Craig Joyce Michael W. McConnell David O'Brien Charles Alan Wright MANAGING EDITOR Jennifer M. Lowe CONSULTING EDITORS Kathleen Shurtleff Patricia R. Evans Drew Alexander James J. Kilpatrick David T. Pride The Supreme Court Historical Society BOARD OF TRUSTEES Warren E. Burger ChiefJustice of the United States (1969-1986) Erwin N. Griswold Leon Silverman Chainnan President Alice 0' Donnell First Vice President Vice Presidents Frank C. Jones Dwight D. Opperman E. Barrett Prettyman, Jr. Virginia Warren Daly Peter A. Knowles Secretary Treasurer . George Adams Charles O. Galvin Howard T. Markey Noel J. Augustyn Kenneth S. Geller William Barnabas McHenry Barbara A. Black Frank B. Gilbert Francis J. McNamara, Jr. Hugo L. Black, Jr. S. Howard Goldman Norman E. Murphy Robert L. Breeden John D. Gordan, III Phil C. Neal Vera Brown William T. Gossett Leon Polsky Vincent C. Burke, Jr. Francis M. Gregory, Jr. Charles B. Renfrew Patricia Dwinnell Butler W. Fulton Haight William Bradford Reynolds William T. Coleman, Jr. Geoffrey C. Hazard. Jr. John R. Risher, Jr. F. Elwood Davis Lita Annenberg Hazen William P. Rogers Charlton Dietz J. Roderick Heller, III Kenneth Rush John T. Dolan William E. Jackson Fred Schwengel William Edlund Robb M. Jones Bernard G. Segal John C. Elam Stanley N. Katz John C. Shepherd James D. Ellis James J. Kilpatrick Justin A. Stanley Michela English Philip B. Kurland Obert C. Tanner Thomas W. Evans Rex E. Lee W. Foster Wollen Wayne Fisher George S. Leisure, Jr. M. Truman Woodward, Jr. Sol M. Linowitz J. Jonathan Schraub General Counsel Ralph T. Borrello Assistant Treasurer David T. Pride Executive Director Kathleen Shurtleff Assistant Director General Statement The Supreme Court Historical Society is a private non-profit organization, incorpo­ rated in the District of Columbia in 1974. The Society is dedicated to the collection and preservation ofthe history ofthe 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 ofthe Court's contribution to our Nation's rich constitutional heritage. The Society publishes a Quarterly newsletter, distributed to its membership, which contains short works on the Court's history and articles detailing the Society's programs and operations. In addition, the Society began publishing an annual collection ofscholarly articles on the Court's history entitled the Yearbook in 1976 which was renamed the Journal ofSupreme Court History in 1990. The Society initiated the Documentary History ofthe Supreme Court ofthe United States, 1789-1800in 1977 with a matching grant from the National Historical Publications and Records Commission (NHPRC). The Supreme Court became a co-sponsor in 1979. Since that time, the Project has completed four ofits expected eight volumes, with a fifth volume to be published in 1994. The Society also co-publishes Equal Justice Under Law, a 165-page illustrated history ofthe Court, in cooperation with the National Geographic Society. ltco-sponsored in 1986 the 300-page Illustrated History of the Supreme Court ofthe United States. It co­ sponsored with the Court, the publication ofthe United States Supreme Court Index to Opinions in 1981, and is currently funding a ten-year update ofthat volume to be completed in late 1993. The Society has also developed a collection ofillustrated biographies ofthe Supreme Court Justices which will be published in cooperation with Congressional Quarterly, Inc. in the summer of 1993. This 450 plus page paperback book, entitled The Supreme Court Justices: Illustrated Biographies 1789-1992, will include biographies ofall I 06 Justices, rare photographs, and a look at the life and jurisprudence of the Justices. In addition to its research/publications projects, the Society is now cooperating with the Federal Judicial Center to develop 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 ofthe Court's permanent collection of busts and portraits, as well as period furnishings, private papers and other artifacts and memorabilia relating to the Court history. These materials are incorporated into displays for the benefit ofthe Court's 800,000 annual visitors which are prepared by the Court Curator's Office. The Society also funds outside research, awards cash prizes to promote scholarship on the Court and sponsors or co-sponsors various lecture series and other educational . colloquia to further public understanding ofthe Court and its history. The Society ends 1992 with approximately 4,300 members whose fmancial support and volunteer participation in the Society's standing and ad hoc committees enable the organization to function. These committees report to an elected Board ofTrustees and an Executive Committee, the latter ofwhich is principally responsible for policy decisions and for supervising the Society's permanent staff. Requests for additional information should be directed to the Society's headquarters at 111 Second Street, N.E., Washington, D.C. 20002, Tel. (202) 543-0400. The Society has been detennined eligible to receive tax deductible gifts under Section 50I (c) (3) under the Internal Revenue Code. Journal of Supreme Court History 1992 In Tribute: Associate Justice Thurgood Marshall page A Tribute to Thurgood Marshall William J. Brennan, Jr. Thurgood Marshall: The Influence ofa Raconteur 9 Sandra Day 0 'Connor Reflections on Justice Marshall 15 Robert L. Carter The Noblest Roman ofThem All: A Tribute to Thurgood Marshall 19 Louis F. Claiborne The Privilege ofClerking for Thurgood Marshall 23 Susan Low Bloch John Marshall Harlan I and a Color Blind Constitution: 27 The Frankfurter-Harlan II Conversations LivaBaker Chief Justice Taney and the Shadow ofDred Scott 39 .• Robert L. Stern William Paterson Charles F. Hickox III and Andrew C. Laviano 53 President Washington's Appointments to the Supreme Court 63 Brooks D. Simpson Robert H. Jackson: "Solicitor General for Life" 75 E. Barrett Prettyman, Jr. The Supreme Court Fleet 88 James B. O'Hara Potter Stewart: The Unpredictable Vote 99 Gayle Binion The Judicial Bookshelf 109 D. Grier Stephenson, Jr The Judicial Bookshelf--Continued 137 Michaelll Cardozo Books reviewed in this issue: John Marshall Harlan: The Last Whig Justice, Loren Beth Copyright 1992, by The Supreme Court Historical Society 111 Second Street, N.E. Washington, D.C. 20002 ISBN 0-914785-00-6 John Marshall Harlan: Great Dissenter ofthe Warren Court, Tinsley E. Yarbrough The Justicefrom Beacon Hill: The Life and Times ofOliver Wendell Holmes, Liva Baker Felix Frankfurter: Judicial Restraint and Individual Liberties, Melvin l. Urofsky OfPower and Right: Hugo Black, William O. Douglas, and America's Constitutional Revolution, Howard Ball and Phillip J. Cooper Abe Fortas: A Biography, Laura Kalman Deciding to Decide, H. W. Perry, Jr. The Intelligible Constitution, Joseph Goldstein Judicial Power and Reform Politics: The Anatomy ofLochner v. New York, Paul Kens The Constitution in the Supreme Court: The Second Century 1888-1986, /)avid P. Currie An Essential Safeguard: Essays on the United States Supreme Court and Its Justices, ed. by D. Grier Stephenson, Jr. Contributors 142 Photo Credits 143 Other Publications 144 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 Journal. A Tribute to Thurgood Marshall William J. Brennan, Jr. Editor's Note: This article was originallyprinted legal giants; one cannot take his full measure in the November 1991 Harvard LawReview. It is within the compass of an essay, and even a sum­ reprinted by permission. mary is difficult. One can begin, of course, by noting that in his twenty-four Tenns on the Su­ The task of writing a tribute to Justice Mar­ preme Court, Justice Marshall played a crucial shall is daunting. Thurgood is one ofour century's role in enforcing the constitutional protections Thurgood Marshall with President Lyndon Johnson in the White House. Two years after appointing Marshall Solicitor General, the President nominated him to succeed Tom Clark on the Supreme Court. Clark resigned after his son, Ramsey Clark, was named Attorney General. 2 JOURNAL 1992 that distinguish our democracy. Indeed, he leaves good was unique among them. His departure from behind an enviable record ofopinions supporting the Court brings a richly deserved retirement for the rights ofthe less powerful and less fortunate. him but, regrettably for the country, signals the One can then add that, for more than twenty-five twilight ofaremark able public career. Ofno other years before he joined the judiciary, Thurgood