Introduction

Abstract

Introduction Melvin I. Urofsky Longtimereaders oftheJournalknow that I often get very enthusiastic about the wide range of topics that we now include regularly under the rubric of Supreme Court history. When I first began studying constitutional his­ tory in graduate school, one read cases and lit­ tlemore. The artofjudicial biographywas inits infancy and essentially limited to a few books by Alpheus Mason. Scholars had notyetbegun to plumb the riches that could be found in court records and papers, nor had they begun to ex­ plore the relationships among the men (at that time only men) who sat on the nation’s high­ est court. All that has changed, of course, and while we still study cases—because, as Judge Richard Posner says, that’s the bottom line— we now know that there is a great deal beyond the bottom line. The first article this month, by Brendan Doherty, shows us how scholarship has devel­ oped in the oldest portion of our scholarship, the examination of cases. Barron v. Baltimore (1833) is, of course, a staple in ConLaw I courses, as the case that held that the Bill of Rights did not apply to the states. Usually it was taught as a prelude to the doctrine of incorporation, but rarely did law-school teach­ ers spend the time to examine the historical and political context surrounding the case. As Professor Doherty shows, to do so is to find layers ofmeaning. Law clerks are such a staple part of the Court these days that many people as­ sume there were always clerks. In fact, Justice Horace Gray beganthepractice ofhiringbright young graduates from his alma mater, the Harvard Law School, when he served as chief judge of the Massachusetts high court. (One ofthese bright young men, Louis D. Brandeis, had a rather extraordinary career ahead of him.) Gray continued the practice in Washing­ ton; it was picked up by his successor, Oliver Wendell Holmes, Jr., and it spread until for­ malized and funded by Congress. Todd Pep­ pers has long been fascinated by the role of clerks, and his research led him to look into who these “first clerks” were. As editor, I am of course always on the lookout for articles, and the Civil War mem­ oirs of the first John Harlan resulted from a researchtrip I made to Louisville. While work­ ing on Brandeis, I took a break to chat with v vi JOURNAL OF SUPREME COURT HISTORY one ofthe law librarians, Scott Campbell, who had been arranging some materials in the Har­ lan Papers. He asked if I might be interested in a memoir of the Civil War that Harlan had written, and the answerwas clearly yes. Scott’s work is part ofan ever-growing corpus ofwork on Harlan I, who for many years remained buried in a totally undeserved obscurity. Felix Frankfurteronce tried to rebut Hugo Black’s assertion that the First Amendment enjoyed a “preferred” position in our consti­ tutional hierarchy. Frankfurter wondered how that could be, since if one part is preferred, than another must be inferior. Well, yes, but as most scholars and judges recognize, some parts of the Constitution are less important than others—until you get a case involving these unremarkable clauses. That happened in the 1920s, when Congress adjusted judicial salaries at the same time it imposed an income tax under the new Sixteenth Amendment. As Barry Price shows, this created a personal as well as a jurisprudential question for the Jus­ tices, and how muchthey earnedwoulddepend on the answer. My guess is that at the time that last sentence in Article III, Section 1, did not seem “inferior.” When Justice Stephen Breyer finally re­ linquished his title ofjuniorJustice afternearly a dozen years, our managing editor, Clare Cushman, decidedto askhimaboutthatunique position. From Breyer’s appointment in 1994 until the appointment ofChiefJustice Roberts and Justice Alito, we had one of the longest “natural courts” in the nation’s history: that is, a court in which the members remained the same Term after Term. One of the effects of such a long-standing natural court is that the juniorJustice atthe beginningis thejuniorJus­ tice for a long time. Aside from opening the door when there is...