Introduction

Abstract

Introduction MELVIN I. UROFSKV We go to press just a few weeks after the death of Justice Ruth Bader Ginsburg, who in her nearly three decades on the high court was a good friend of the Society and of the Journal. We will have tributes to her in our next issue. This issue is notable in that we have two articles on the same subject, Justice Willis Van Devanter, as well as two articles by the Journal’ s family, as it were. Clare Cushman had been the managing editor of the Journal even before I became editor in the early 1990s, and the high quality of its production is entirely due to her. But Clare is also an officer of the Society, in that she is Director of Publications, as well as a practicing historian. In fact, one of her many titles is Resident Historian at the Society. Her contribution to this issue is “Sons of Ohio: William Rufus Day, Nepotism and his Law Clerks.” The practice of Supreme Court justices hiring young men (and they were all men until the 1940s) as clerks, or as they were of­ ten called, “secretaries,” began in the 1870s, although it would be many years before all justices had clerks. Day, whom Theodore Roosevelt appointed to the bench in 1903, had four sons, and he hired three of them as his clerks. Not only would this nepotism be frowned upon today, but so would the fact that at least one of them kept up an active private law practice while working for the Justice. Timothy S. Huebner’s day job is As­ sociate Provost and Sternberg Professor of History at Rhodes College in Memphis. But he also puts in great effort as the associate editor of the Journal. His Liberty and Union: The Civil War Era and American Constitu­ tionalism (2016) is now considered one ofthe leading studies of that subject. Tim’s article discusses a phenomenon that very few of us knew about, or even that it existed, “Black Constitutionalism.” As he shows, there was an articulate constitu­ tional thought within the African-American community well before the Civil War, as people of color, even if free in Northern states, tried to develop a theory of how they—and their enslaved brethren—fit into the American constitutional scheme. When the Taney Court handed down its decision in Dred Scott, they now had to respond to the Chief Justice’s opinion that blacks could not be citizens. We have two articles on Justice Willis Van Devanter, remembered primarily as one of the Four Horsemen who tried to scuttle reform legislation in the 1920s and then 214 JOURNAL OF SUPREME COURT HISTORY the New Deal in the 1930s. Because he did not write as many opinions as most of his brethren, Van Devanter often shows up on lists of “forgotten justices.” However, Louis D. Brandeis thought highly ofhim, and often sought “Van’s” thoughts on his majority opinions before circulating them. He told Felix Frankfurter that Van Devanter was like a Jesuit, quietly exerting great influence. Both Robert Post, Sterling Professor of Law and former dean ofthe Yale Law School, and Mark Tushnet, William Nelson Cromwell Professor of Law emeritus at Harvard Law School, are past contributors to the Journal. Moreover, both articles are adopted from the volumes they are writing for the Holmes Devise, Post for that on the Taft Court, and Tushnet for the one on the Hughes Court. It is a usual practice for the authors ofthe Holmes Devise to write biographical sketches of the men who served on that Court. Tushnet is here looking at the man behind the robes, while Post is looking at the unique role Van Devanter played on the Taft Court. Berea College v. Kentucky (1908) is one of the main pillars of the Supreme Court’s ratification of Jim Crow apartheid. Ronald S. Rauchberg is a retired litigation partner at Proskauer Rose, and he writes here about a little known aspect of that case, how the justices adopted scientific racism in deciding that case. Scientific racism was certainly no stranger to Americans in the early decades of the 20th century, and it did not go...