Introduction

Abstract

Introduction Melvin I. Urofsky We have a particularly appetizing buffet for our readers in this issue, and as I often say, they illustratetherich varietyofSupreme Court history. Althoughthetraditional cases are atthe heartoftwo ofthearticles, the storiestoldby the authors go far beyond the four comers of the opinions. This well reflects what one is finding in many recent books about the Court, the Justices, and their work, attention not only to thewritten opinion, butwhatLouis D. Brandeis used to call “all the facts that surround.” Williamjames Hoffer’s article on the landmark case of Plessy v. Ferguson (1896) is not the first, nor will it be the last, historical word on that subject. ButPlessy, decided more than a century ago, continues to fascinate scholars as we leam more about the people involvedinthecase. Hoffertakes a close lookat the lawyering involved, and the strategy that brought the case to the high court. Since the Court does not issue advisory opinions, there mustbe a real case orcontroversy involved, and the people who objected to the Louisiana law segregating railroad cars chose carefully, not just Homer Plessy, but the lawyers and the tactics they would follow. Thomas Healy, a colleague of Hoffer’s at Seton Hall University, also revisits another landmark decision, Abrams r. United States (1919). The article is adopted from Healy’s recent book, and focuses on why Oliver Wendell Holmes, Jr., changed his mind regard­ ing the meaning ofthe FirstAmendment Speech Clause from his decision only a few months earlier in Schenck v. UnitedStates. Again, much has been written on the Holmes dissent, but Healy unearths new information that led Holmes to write what has been considered one of the great defenses of free speech. There is much debate over the process by which men and women are nominated to the federal judiciary. One school ofthought takes a rather purist view that if the person is qualified (and what that means is the subject of another book), then the Senate ought to confirm. History, however, teaches us that as great—perhaps even a greater—a consideration is politics, not only the political debates over hot button issues, but also old-fashioned party politics. This was as true in the days ofthe early Republic as it is now. Lest anyone think that some ofthe recent fights over nominations are something new, v vi JOURNAL OF SUPREME COURT HISTORY Albert Lawrence ofNew York’s Empire State College examines the politics involving an open seat on the high court, President Grover Cleveland, and two New York lawyers who happened to be brothers—Wheeler and Rufus Peckham. While the political goals may have changed since Tammany tried to manipulate the process, political reasons still play a large role in who gets on the Bench. When writing about the Court, historians always note that, in times of stress, especially when national security issues seem to be involved, the Court has often backed away from its role as protector ofindividual liberties. This is not surprising. The men, and more recently women, who have sat on the bench are subject to the same emotions as their fellow citizens when there is a perceived threat to the country. Justice William J. Brennan, Jr., observed in 1987 that the Court and the country “has a long history of failing to preserve civil liberties when it perceived its national security threatened.” One of the worst episodes of this failure occurred after the Second World War, in the nearly decade-long McCarthy era. Robert Lichtman, a San Francisco attorney and author, looks at the Court during these years, tracing how the Justices, like the countiy, engaged in the witch hunt, and eventually came out of its madness. One of the continuing debates among scholars as well as politicians and judicial observers in general is that of “judicial activism” versus “judicial restraint.” There are some who consider this at best a fallacious argument, since what constitutes “activism” and “restraint” are relative values very much in the eye of the beholder. Without the activism ofthe Warren Court, for example, it is hard to believe that the southern states would have voluntarily dismantled segregation. On the other hand, a too rigid adherence to the “idol of restraint,” as Zachary...