Introduction

Abstract

Introduction Melvin I. Urofsky Last winter the Society lost one ofits best friends with the death of Justice Antonin Scalia. Justice Scalia hosted a large number of the Society’s programs in the Courtroom, and I personally recall how much fun he had presiding over the re-enactments of some of the great cases to have come before the Court. Moreover, he made it a point that all of us involved should have a good time as well. This issue carries two tributes to Justice Scalia. One is from his long-time jurisprudential opponent, Justice Ruth Bader Ginsburg. Despite their differences, the two were close friends from the time they both sat on the Court of Appeals for the District of Columbia. Part oftheir bond was a shared love ofopera, and they both considered it a great old time when invited to sing in the chorus of one production of the Washington Opera. They also appeared to take a great deal ofpleasure out of an opera written about the two ofthem. Over the years Justice Scalia, who served on the Court from 1986 to 2016, had many clerks, and when I run into one occasionally, they are unanimous in affirming his kindness to them, his graciousness, and at the same time a demand for very high-quality work. Kannon Shanmugam, who is now a partner at Williams & Connolly, clerked for the Justice in the October 1999 Term, and writes about his experience. This issue contains the article versions of the talks given in last year’s Leon Silverman Lectures, on the general subject of Recon­ struction after the Civil War. Justice Anthony Kennedy, in introducing Michael Ross, noted that Reconstruction is a mystery to most. It is an era that is “very important to understand in order to get a sense of who we are, and what our law is, and how we got to ... this point in history.” Michael Ross is professor ofhistory at the University ofMaryland, and a member ofthe Board ofEditors for this Journal. In his article he tries to do what Justice Kennedy says is so important, namely understanding Reconstruction for the impact it had on the country, on the Court, and also on the meaning of the Civil War. While historians ofthe Constitution have always recognized the importance of the Slaughter-House Cases, in the last few years there has been increased attention paid not 248 JOURNAL OF SUPREME COURT HISTORY only to its impact—especially the dissent of Mr. Justice Field—but also to the case and the politics surrounding it. Randy E. Barnett, the Carmack Waterhouse Professor of Legal Theoiy at the Georgetown University Law Center, looks at how the case can be interpreted as a matter of public health, a case of public corruption, and most recently, as a narrative of race. One of the great legacies of Reconstruc­ tion, and one that is still vitally important to current jurisprudence, is the Fourteenth Amendment. While today we are primarily concerned with its Due Process and Equal Protection Clauses, in the 1860s the Amend­ ment embodied the Republican plan for Reconstruction. Faced with a sure veto from Andrew Johnson if it tried to enact the plan statutorily, the Republican majority in Congress felt unsure whether Johnson might be right, that it had no constitutional authority to pass such legislation. So they drafted the amendment, and made it a requirement that, before any of the Confederate states could be admitted back into the Union, they had to ratify it. Laura Edwards, the Peabody Family Professor of History in Trinity College at Duke University, shows how the amendment had an immediate effect. It not only opened the court system to the freed slaves, but affected northern judicial systems as well. When did Reconstruction end? The view accepted by most historians is 1877, when the “Compromise” gave contested Southern Electoral College votes to Rutherford B. Hayes in exchange for the end of military occupation ofthe former rebellious states. By this view, the Republican Party essentially abandoned the freedmen to the Southern states, and within a few years the institutions of Jim Crow appeared throughout the former Confederacy. In the last fifteen years, however, a number of...