Introduction

Abstract

Introduction MELVIN I. UROFSKY It is always our aim to provide our readers with a rich diversity of materials on the history of our nation's highest court, but I think this issue is one of the most diverse in my quarter-century as editor of the Journal. We have articles on legal strategy, the con­ stitutional validation of the Union victory in the Civil War, the maneuverings that took a little-known lawyer from the heartland to the Supreme Court, the end of one of the most important eras in the Court's history, and how environmental concerns made their way into the volumes of U.S. Reports. John Marshall, the great Chief Justice, is always ranked as one of the three most important persons to have sat on the high court, along with Oliver Wendell Holmes, Jr., and Louis Dembitz Brandeis. Scholars, myself included, consider the decisions handed down by Marshall in his thirty-four years on the bench to be the building blocks of our constitutional structure. Yet if one looks closely, the really important decisions took place in his first two decades, and of the opinions in his last years, the Cherokee cases stand almost alone. Professor William Da­ venport Mercer of the University of Ten­ nessee suggests that if we look closely at the last years of the Marshall Court, we will see that circumstances—both of a personal and political nature—had changed dramatically from the heyday of McCulloch and Gibbons. Two years ago the Society sponsored a lecture series on “Presidents and Their Cabinets,” and due to a variety of circum­ stances, we were unable to print all of the lectures in the same issue. We now have the last of those lectures, the one on Salmon P. Chase, who served as Lincoln's Secretary of the Treasury, and then became Chief Justice to succeed Roger Taney. Professor Cynthia L. Nieoletti of the University of Virginia Law School reminds us that Chase's famous comment, that “the Con­ stitution, in all its provisions, looks to an indestructible Union, composed of in­ destructible states,” which is now accepted as a foundational constitutional tenet, was not always so, especially in the years before Texas v. White (1869). In the history of the First Amendment's Speech Clause, most historians see the in­ famous case of Dennis v. United States (1951) as an unfortunate stumble by the Court on the road from Abrams v. United States (1919) to Brandenburg v. Ohio (1969). In fact, the Court reversed itself in just six years in the Yates case. Why and 134 JOURNAL OF SUPREME COURT HISTORY how this volte-face came about has been at­ tributed to a number of causes—changes in the political environment and personnel changes on the bench being the two most common reasons given. Hayden Thorne, a doctoral student at Victoria University in Wellington, New Zealand, suggests another reason: a significant shift in legal strategy, which appealed to the sitting judges in both the trial and appellate courts far more than the effort of the Dennis attorneys to make it a political trial. For environmentalists, no member of the Supreme Court is held in higher esteem than William O. Douglas, who made pro­ tecting our natural resources his chief ex­ trajudicial activity. Many legal scholars mocked him when in dissent he suggested that trees and rivers ought to have legal standing so that they could challenge the depredations visited upon them by devel­ opers. Although trees may not yet have standing, the courts have proven more friendly to groups like the Sierra Club who, in a way, speak for the trees. The Hon. M. Margaret McKeown, a judge on the Court of Appeals for the Ninth Circuit, takes a fresh look at the case that included the Douglas dissent, Sierra Club v. Morton (1972), and has come up with new and interesting findings. A number of years ago I had the priv­ ilege of interviewing Justice Harry A. Blackmun, and he rather self-deprecatingly referred to himself as “old number three,” meaning that he had been Richard Nixon's third choice to replace Abe Fortas, after the Senate turned down his first two...