Introduction

Abstract

Introduction Melvin I. Urofsky This particular issue provides an even greater potpourri than usual, since we have some articles that came in “over the transom,” some from previous contribu­ tors, some from the Leon Silverman Lecture Series, and the “Judicial Bookshelf.” While we are certainly delighted to offer you such a rich repast, there is also a note of sorrow. In December 2018, a colleague, friend, and all around nice person passed away. David M. O’Brien, contributed his talents to the Journal as a member of the editorial advisory board, as a contributor, and as a sounding board for questions from time to time. He and I collaborated on a few projects, read each other’s manuscripts, and as I have mentioned several times, the field of Supreme Court history is small in numbers, and David was one of its leaders. His Storm Center: The Supreme Court in American Politics, first published in 1986, is now in its eleventh edition, and is one of those books that both professionals as well as undergraduate tyros turn to with con­ fidence. There is more about David and his work in Grier Stephenson’s Judicial Book­ shelf, and from conversations I have had with other scholars, there is no doubt that he will be greatly missed. Saikrishna Bangalore Prakash is James Monroe Distinguished Professor of Law at the University of Virginia, and his article derives from the talk he gave in the Silverman Series on Justices serving in the Cabinet. His article notes that although the Constitution establishes separation of powers, it does not create a total separation, that is, although a member of the judiciary almost never simultaneously occupies an executive position, theoretically he or she could. In one hypothetical, Secretary of State Mike Pompeo could work in Foggy Bottom in the morning and sit on the Court of Appeals for the D.C. Circuit in the afternoon. In fact, from the beginning of the Republic members of the judiciary—many of whom had earlier served in a presidential cabinet— continued to advise Presidents, draft legisla­ tion, and do other things that clearly transcended what most people would con­ sider separated powers. Another contribution in the series also comes from the University of Virginia. Sidney Milkus is White Burkett Miller Professor of Politics, and Nicholas Jacobs is a doctoral candidate in that department. Although Justices leave the Court for many reasons, James F. Byrnes is unique as the only member to resign to serve in a cabinet 6 JOURNAL OF SUPREME COURT HISTORY position. This occurred during World War II when several members of the high court chafed at hearing what they saw as routine and meaningless cases, at least compared to the great challenge of a country at war. Robert H. Jackson wanted to leave; Frank Murphy actually enlisted, and on occasion wore his uniform to Court, although the War Department never called him to active duty. Byrnes also wanted to leave, and in his case, President Roosevelt wanted him to. Robert H. Jackson is one of the most enigmatic members of the Court; he is not considered one of the “greats” for the simple reason that he did not serve long enough. But while on the bench he made his mark, and also has a unique item in his record— without resigning from the Court he served as chief American prosecutor at the Nazi War Crimes Trial in Nuremburg. Jackson had been a close advisor to FDR, serving in several positions including Solicitor General (Justice Brandeis thought him so good he commented that Jackson should hold that office for life), then Attorney General, before being named to the high court. John Q. Barrett has become the leading Jackson scholar of our time and has been working on a comprehensive biography. From my point of view, it cannot come soon enough. His piece also derives from the Silverman series. My friend Mark Killenbeck is the Wylie H. Davis Distinguished Professor at the University of Arkansas Law School and is recognized as the authoritative voice on M’Culloch v. Maryland (1819). Mark notes that although there were actually two issues in the case, he and most scholars have paid attention only...