Introduction

Abstract

Introduction Melvin I. Urofsky The issue in your hands includes articles on many facets of the Supreme Court’s history, which, of course, has been our objective for many years. We hope that our readers will find time to put their feet up and enjoy learning more about our nation’s highest tribunal. When the Court recently handed down its decision in the same-sex marriage case, a number ofcommentators referred to Brown v. Board ofEducation (1954) to make a very important point. While the first case in a new field ofjurisprudence gets the headlines and the attention, the real work of implementing that decision will require years and other cases to determinejust how far the new ruling will go. Brown said that state-required racial segregation in public schools violated the Fourteenth Amendment’s Equal Protection Clause. But what about racial discrimination in places other than schools? Professor Steven P. Brown, the head of the political science department at Auburn, looks at one of these cases and its long history. Steven Girard, a wealthy nineteenthcentury Philadelphia merchant, left the bulk of his estate to found a school for white orphans. Although the gift was private, there were enough connections to the city to warrant a case for state action. Professor Brown traces the history of the bequest, and the fight that took place over integrating Girard College in the 1960s. It is a fine example of the devil being in the details. Evan P. Rothera is a graduate student in history at Pennsylvania State University, and his article on polygamy is the winner of this year’s Hughes-Gossett Student Prize. Most of us who teach constitutional history focus almost entirely on Reynolds v. United Statesem (1879) when we discuss the Court and polygamy. But as Rothera and others are showing, there is far more to the battle against polygamy than that one case, and it involved not only the high court but Congress and the Republican Party as well. It has been my good fortune to have Clare Cushman as the managing editor of the Journal ever since I took over. But Clare is not only a good editor, she is also the author of a number of books about the Court and its members. In 2011 she published 5 6 JOURNAL OF SUPREME COURT HISTORY Courtwatchers: Eyewitness Accounts in Supreme Court History, which has a wealth of little known anecdotes about the high court. The response was so enthusiastic that she is now co-publishing a volume (with Todd Peppers), Of Courtiers & Kings; More Stories by Law Clerks and Their Justices, from which the article on pre-1940 law clerks is adapted. The Framers of the Constitution gave federal judges tenure during good behavior, in other words, a lifetime appointment so they would be free from partisan political pres­ sures. The vast majority of the members of Justices have stayed until they retired or died, but a handful have left the Court to do something else. James F. Flanagan, emeritus professor of law at the University of South Carolina, looks at five of these Justices and helps us to understand why they did some­ thing so rare—resign from the U.S. Supreme Court. Abe Fortas was one of the most success­ ful lawyers in Washington, the head of a politically connected law firm, and the epitome of the old saw about New Deal lawyers who came to Washington to do good and stayed on to do well. He was a friend of Lyndon B. Johnson, who very much wanted him on the Court, a position that neither Fortas nor his wife wanted, but LBJ could not be stopped. Then, when Earl Warren wanted to retire as ChiefJustice, Johnson nominated his friend to take the center chair. Normally that would be the end of the story, but in fact it is just the beginning, as Robert David Johnson of Brooklyn College shows us. It is a tale with not one but many morals. Finally, we have a piece from my book on dissent and the Court. In that volume I try to show that a dissent is more than merely saying “I disagree.” A great dissent forces the...