Introduction

Abstract

Introduction Melvin I. Urofsky Over the years, I have found that when I am wearing my hat as a constitutional histo­ rian, I often have cause to look into the back issues of the Journal. Occasionally it is be­ cause I am working on a fairly standard item and recall that we have published something in that area. Other times I recall a somewhat idiosyncratic piece thatjust might have a piece ofinformation that will help illustrate a partic­ ular point. This issue carries both types, and each is important in understanding the Court’s history. While there have been more Justices than Presidents, there have been far fewer mem­ bers ofthe Court than Senators and especially Representatives. As a result, it is possible to take something like where a particular person is buried and discover a great deal about who he was. George Christensen got interested in where the Justices are buried anumber ofyears back, and he wrote his first article for the So­ ciety on that subject in 1983. Since then more Justices have gone to their reward, some have been reinterred, and mistakes about supposed burial sites have been discovered. Christensen has personally visited all but one of the Jus­ tices’ gravesites, and he now presents an up­ dated version ofhis research. Because Justices, unlike members of the executive orlegislativebranches, are appointed and require Senate confirmation, we have the occasional situation of a President’s first choice either notbeing confirmed or ofhaving the nomination recalled for a variety of rea­ sons. In rare instances, this may happen more than once. Artemus Ward has done some read­ ing onthis andhas comeupwithalight-hearted piece on the “Good Old # 3 Club,” as Jus­ tice Harry Blackmun used to call it. There is also a # 5 Club, and some people believe that Robert Grier is the only member of that “se­ lect” body. However, it all depends on how one counts ... Readers know that each year we have two competitions for the Hughes-Gossett prizes. One is given to the best article in the Journal each year. The other goes to a student es­ say, with the winning entry published in the Journal. This year’s student winner is Con­ stance Martin, whose essay is on the ju­ risprudence of Justice Robert H. Jackson— another reminder, if we needed one, that this v vi JOURNAL OF SUPREME COURT HISTORY long-neglected and very important figure de­ serves a top-notch biography. “The most important thing we sometimes do,” Louis Brandeis told Felix Frankfurter, “is deciding not to decide.” Brandeis had a highly developed sense ofjurisdictional limits, as did ChiefJustice William Howard Taft. But where Brandeis would have imposed existing restric­ tions more tightly, Taft looked to a whole­ sale revision ofthe High Court’s jurisdictional boundaries. And he succeeded in getting them in the Judiciary Act of 1925, a story told here by Jonathan Sternberg. All scholars sometimes wish that they could go back and revisit a subject they had written on earlier in their career. They might have changed their minds; more likely, new source material has become available, either to correct earlier interpretations or to provide bet­ tersubstantiationfor suppositions. Tony Freyer first wrote about the Little Rock crisis and the resulting 1958 Court case, Cooper v. Aaron, in 1984. Recently the University Press ofKansas asked him to contribute a volume on the de­ cision to the “Landmark Cases” series, giv­ ing him the chance to look over the field once again. This time, with access tojudicial papers not open a quarter-century ago, Freyer is able to give us a more detailed and more nuanced history of that decision. One of the most controversial parts of the Second Red Scare involved the Attorney General’s List of Subversive Organizations. A group could be included on that list with no notice and with no chance to prove that it was not Communist-affiliated or subversive. Robert Goldstein tells us about the case that took the first steps—admittedly small ones— in the Court’s recognition that such tactics vio­ lated not only the premise ofthe First Amend­ ment, but the Fifth Amendment’s Due Process Clause as well. So, for light...