Introduction

Abstract

Introduction Melvin I. Urofsky The other day I was looking at the Court’s docket for this year, and realized that while the specifics may have changed—there are more cases dealing with technology, for example— the heart of the docket is what it has been for more than eight decades: important ques­ tions of constitutional and statutory interpre­ tation. In the course of recent research, I read through some volumes of U.S. Reports for the mid-1920s, before the Judges’ Bill of 1925 took force and reoriented the Court. While one would run across the occasional case that would have been important in any Term, a vast majority of the cases involved matters of pri­ vate law or obscure state regulation. ChiefJus­ tice William Howard Taft wanted to make the Court primarily a constitutional tribunal, and he succeeded brilliantly. It is hard to believe that a historian reading about the cases during the Rehnquist and Roberts eras would dismiss the vast majority ofthem as “unimportant.” The Court itself, of course, since the founding of the nation, has been critical to the successful operation of the great experi­ ment, and this issue looks at some of those events in which the Court played a part. In some instances, it did so through expound­ ing principles in a decision, and Thomas Cox examines one of the most important of those cases, Gibbons v. Ogden. Moreover, as histo­ rians have understood for a long time, it is not only the jurisprudential issue that counts, but also how that decision plays out against the context of changing economic and social conditions. Mr. Cox does an admirable job of explicating this. The Supreme Court never ruled on the Alien and Sedition Acts of 1798, but mat­ ters arising under America’s first “internal se­ curity act” did come up before some of the lower courts. Given how active the judiciary is regarding current security measures, Arthur Garrison’s examination of how judges treated the early laws is instructive. In the last issue of the Journal, we ran the first part of Theodore Vestal’s exami­ nation of how the Court during the Warren years engaged in public diplomacy, a role then somewhat alien to the Justices. Since then, of course, members of our High Court have be­ come familiar figures as they travel overseas during the summer recess and speak to jurists v vi JOURNAL OF SUPREME COURT HISTORY and legal academics in other countries. In this issue, we have the conclusion of Mr. Vestal’s study. A few years ago, the Supreme Court His­ torical Society’s annual lecture series dealt with advocacy before the High Court. At the time, we heard from many people who wanted to know why we did not include this person or someone else who was a great advocate. (One was reminded of Justice Brandeis’s comment that Robert H. Jackson ought to be made So­ licitor General for life!) There were, ofcourse, many other lawyers who practiced before the Supreme Court who were very good, but in a series one can only deal with a few. Here we make up for at least one omission, as Jeremy McLaughlin examines the role of one of the great orators ofthe nineteenth century, Henry Clay, in his Supreme Court practice. Todd C. Peppers has graced the pages of the Journal before. In this issue, he looks at a topic very close to my own heart: the relation­ ship between Justice Louis Brandeis and his clerks. It was far different from those of say Holmes, Frankfurter, or Brennan, but when I interviewed several of his clerks many years ago, all spoke of their year with Brandeis in terms ofawe. Finally, as ever, we are indebted to Grier Stephenson for keeping us up to date on recent historiography. The interest in the Court never seems to wane—which is fortunate for all of us—and Grier performs an invaluable service in his efforts to sort out the books in front of us. As always, enjoy! ...