Introduction

Abstract

Introduction Melvin I. Urofsky The articles in this issue cover a wide va­ riety oftopics, but no more so than any ofthe recent Terms ofthe Supreme Court. Matters of foreign policy, habeas corpus, patent law, and the like were on the Court’s docket in the Octo­ ber2004 Term, andno doubt some future editor ofthis Journal will be treating those cases. The first article requires some truth in ad­ vertising on my part. A book that I am editing contains forty essays on the public response to controversial Supreme Court decisions, start­ ing with M’Culloch v. Maryland (1819) and ending with McConnell v. Federal Election Commission (2003). This book aims to show the Court’s decisions in a wider perspective than that of the law itself. These decisions do have an impact, even if that impact is not al­ ways as dramatic as, for example, the strik­ ing down of segregation in Brown v. Board of Education (1954). The decisions of the Court affect public policy and the public’s percep­ tion of that policy. They make people think about—and often rethink—assumptions they may have held on particular issues. At the turn ofthe last century, as the United States became aworldpowerandjoinedotherWesternnations in holding overseas territories as possessions, a very important public policy question was how we would treat those territories and their peoples under the Constitution. This was not just a matter for lawyers: it would affect how Congress passed laws for the governance of those territories and how the President would directtheiradministration. The Supreme Court played a particularly important role in this de­ bate, because in the end the Insular Cases did determine just how far the Constitution would follow the flag. People cared about this issue. We are pleased to be able to present this piece on the subject by Bartholomew Sparrow ofthe University of Texas. There have been only a few law profes­ sors on the High Court. One thinks particu­ larly of Joseph Story and Felix Frankfurter. But many Justices right down to the present have done some teaching as part of their ex­ trajudicial activities. For some, it is restricted to the summers when the Court is not in ses­ sion, but in older days Justices often taught during the time when the Court sat. One of v vi JOURNAL OF SUPREME COURT HISTORY the most famous of these law professors was the first Justice John Marshall Harlan. As we know from Linda Przybyszewski’s wonderful biography, this teaching meant a great deal to Harlan. Andrew Novak’s article gives us a far better idea of what Harlan taught and how he viewed that teaching. The war on terror has raised a whole host ofquestions, some ofwhich have already con­ fronted the Court and many others, that will eventually have to be resolved by thejudiciary. But the Court rarely writes on a blank slate. By its nature, the Court looks to related precedent, to see how prior Courts have dealt, if not with the same issue, then with related matters. In Morad Fakhimi’s piece, we get a careful ex­ ploration ofthejudiciary’s earlier experiences in this area. While certainly not designed as a proposal for the present, Fakhimi’s article reminds us that in terms of the Constitution, there is rarely anything totally new under the sun, and we need to understand how constitu­ tional issues have played out in other periods of our history. Fortunatelyforthe Court and its members, interpersonal relations among the Justices have, for the most part, been collegial. A few years ago, in addressing a group ofhigh school students, Justice Thomasnotedthatthe debates within the Court are often heated—and rightly so, because important principles are involved. But these debates, no matter how intense, are carried out in an air of civility, because the Justices know that there will be other issues facing them on which they will have to work as colleagues. That is why, he said, a dissent is al­ ways “respectfully submitted.” There have, of course, been some famous feuds on the Court, such as those between Felix Frankfurter and William O. Douglas, but there have usually not been nasty people with deeply ingrained prej...