Introduction

Abstract

Introduction Melvin I. Urofsky As we go to press, we have just received word of the resignation of Justice John Paul Stevens from the Supreme Court after a long and distinguished career. The Journal will pay tribute to Justice Stevens, long a friend of the Society, in our next issue. The case of Dred Scott (1857) continues to receive attention more than a century and a half after the Taney Court handed down what Chief Justice Charles Evans Hughes called a “self-inflicted wound.” Scholars and layper­ sons alike for many years were unanimous in their condemnation of Chief Justice Taney’s opinion, which is considered one of the worst case examples ofjudicial activism and a cause ofthe Civil War that broke out four years later. More recent scholarship, while not defending slavery, notes thatthe Court had precedents for at least some of its arguments, and that it also mirrored public sentiment in many important particulars. Associate Justice Stephen Breyer reflects some ofthis new thinking in his visit to one ofthe most famous—or infamous—cases in the Court’s history. While we do take the Court and its mem­ bers seriously, we need to be reminded from time to time of Judge Jerome Frank’s ad­ monition that just because a person dons the silk robe, he or she does not stop be­ ing a fully rounded human being with inter­ ests that reach beyond the bench. The ancient and noble game of golf is, when referring to government leaders, often associated with the executive branch. William Howard Taft, Dwight Eisenhower, and William J. Clinton were all well known for their love of—if not always success at—playing the game. But apparently members of the Court also en­ joyed going to the links, and Ross Davies shows us how two members of the Court be­ came enamored of—one might even say ad­ dicted to—trying to get that little ball into the cup. While working on his dissertation at the University of Minnesota, David Schroeder experienced what every graduate student in history dreams about: getting access to a hith­ erto unknown cache of private documents. In his case, the family of Justice Pierce Butler allowed him to examine a box of letters that Butlerwrote to his son duringthetime between Butler’s nomination to the Court by President v vi JOURNAL OF SUPREME COURT HISTORY Warren G. Harding in late 1922 and the time he took the oath in early 1923. In those days, nominees did not appear personally before the Senate Judiciary Committee, and so could not personally answer charges made against them. How Butler felt about the attacks on him and how he weathered the storm comprise the basis for this article. Well into the latter part of the twentieth century, historians ofthe Court had to rely pri­ marily on the published record, the briefs filed by litigants, and the opinions in the U.S. Re­ ports. Not until Harlan Fiske Stone allowed Alpheus T. Mason access to his Court papers did we begin to get a glimpse of the inner workings ofthe nation’s highest tribunal. Since then, other Justices have allowed scholarly ac­ cess to theirpapers, usually by depositing them in the Library of Congress and occasionally placing time restrictions on when they will be opened. But when we do begin to read the case files, the notes left by Justices and their clerks, as well as the inter-Chambers memoranda, we get a much better idea of how the Court con­ ducts its business. L.A. Powe, a professor of law at the University of Texas Law School, experienced the business of the Court first­ hand when he served as a law clerk to William 0. Douglas, and his books on the Court have been marked not only by a keen intelligence but also by a familiarity with the Court’s in­ ner workings. In this article, he shows how the Warren Court’s efforts to deal with obscenity and the strictures of the First Amendment led to some compromises among the Justices that adversely affected at least one person, Ralph Ginzburg. Today, we are so used to Justices issu­ ing concurring opinions...