Introduction

Abstract

Introduction Melvin I. Urofsky The articles in this issue cover a large spectrum of Supreme Court history—how the Justices decided certain cases, dissents that never appeared, a reminiscence of the fourteenth Chief Justice, some little-known aspects of important cases, a rebuttal to an article that appeared in an earlier issue, and, last but certainly not least, Grier Stephenson’s review of books. Docket books are little notebooks that, at least in the time with which I am familiar, had small locks opened by an even smaller key, somewhat akin to a teenage girl’s diary. But instead of comments on Mary’s dress or how interesting the new boy in class is, the comments are on cases argued before the Supreme Court and the discussions on those cases in the Conference following oral argument. In the ones I have used, the jottings may be quite lean—A, B, and C voted to reverse; everyone else to affirm—to lengthy, and sometimes near-verbatim, transcripts of who said what. Given the secrecy with which the Court surrounds its internal deliberations—there are no clerks, secretaries, or messengers at the Conference—the docket books allow historians a limited but often illuminating glance at how Justices discussed certain cases. The Court recently made docket books in the possession of the Curator more easily available to scholars, and Barry Cushman has examined the entries for the first five Terms of the Hughes Court. These are important years, as the country entered the Great Depression following the boom years of the Roaring Twenties. Initially the cases coming to the Court were fairly similar to those in the preceding five Terms, but as the states tried to deal with widespread economic problems, mortgage foreclosures, unemployment, and the like, the measures they experimented with pushed the bounds of what the Justices had previously allowed to the state police powers. Professor Cushman, who is the John P. Murphy Foundation Professor of Law at the University ofNotre Dame, leads us in an exploration ofthe Court in a time ofimportant transition. v vi JOURNAL OF SUPREME COURT HISTORY Most textbooks, including mine, pay very little attention to Champion v. Ames (1903), the Lottery Case, except to note that it is somewhat of an anomaly in the Court’s Commerce Clause jurisprudence at the time. John W. Compton, an assistant professor of political science at Chapman University, argues that it is, in fact, more than an anomaly. Up until that case, most scholars, lawyers, and jurists assumed that only the states had police powers, that is, the authority to enact measures for the health, safety, and welfare of their citizens. The federal govern­ ment, of course, had plenary authority in those areas assigned to it by the Constitution, such as regulation ofinterstate commerce, but police powers analogous to those ofthe states supposedly did not exist. Professor Compton shows how the decision in the Lottery Case marked the demise of this form of dual federalism, although it would be many years before the Court would acknowledge the existence of a federal police power. The Schwimmer case (1929) is usually remembered for one of Justice Oliver Wendell Holmes’s most striking aphorisms, namely, “if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.” Rosika Schwimmer had her application for citizenship denied because, as a pacifist, she could not in good conscience declare that she would take up arms in defense of her country. Holmes pointed out the silliness of this reason, noting that the U.S. Army did not take women and that Schwimmer was then over fifty years old, an age that would have disbarred men as well. We are so enthralled by Holmes’s language—as well we should be—that often we do not look much beyond the dissent. Why did the government turn her down? Who was she, and how did the whole ordeal reflect on the burgeoning women’s movement of that decade? Why did the government allow conscientious objectors to avoid combat but penalized...