Introduction

Abstract

Introduction Melvin I. Urofsky During the nineteen years he served as an Associate Justice of the U.S. Supreme Court, David H. Souter was a good friend to the Supreme Court Historical Society, and we shall all miss not only his presence but his good humor as well. In this issue we are pleased to carry tributes to him by another friend of the Society, former Justice Sandra Day O’Connor, and two of Justice Souter’s former clerks. Heather K. Gerken is currently the J. Skelly Wright Professor at the Yale Law School, and Kermit Roosevelt III teaches law at the University of Pennsylvania. This issue carries an even greater diversity ofmaterials than usual and once again testifies to how extensive we now consider the field of Supreme Court history. Jeffrey L. Amestoy is the retired chiefjustice of the Supreme Court ofVermont and well knows how ajudicial case can affect public policy. His article focuses on Richard Henry Dana, best known to most people for his memoir Two Years Before the Mast (1840). Dana had an eventful life and was known in his time as a champion of two downtrodden groups, sailors and slaves. He served as counsel in one of the first instances in which the U.S. Supreme Court considered the extent of the executive’s war powers— Lincoln’s blockade of Southern ports after the start ofthe rebellion. The litigation, known as the Prize Cases (1863), involved ships seized during the blockade, and ifthe Court had cho­ sen to declare the blockade illegal—as Chief Justice Roger Taney wanted to do—it would have struck a serious blow to the Union. Ac­ cording to ChiefJustice Amestoy, Dana’s skill averted a potential catastrophe. One always hears the phrase “I’ll take it all the way to the Supreme Court,” but we know that in any given Term, the Court routinely turns away literally thousands of petitions for review. The ones that the Court chooses to hear normally deal with questions of consti­ tutional or statutory interpretation. Yet every now and then it chooses to hear something different. U.S. Circuit Court Judge Myron H. Bright tells us about one of those cases, and especially about the dogged determination of a particular lawyer to do right by his client. A Nebraska farmer was found dead in his barn, and while it might have been an acci­ dent, the coroner initially ruled suicide and the v vi JOURNAL OF SUPREME COURT HISTORY insurance company refused to pay on the mod­ est policy. How this case got to the High Court is a fascinating story. Stefanie Lepore graduated from George Washington Law School last year. While there, she wrote a paper on the origins ofthe Court’s practice of seeking the views of the Solicitor General in certain cases. We thought it so good that we are happy to publish it in this issue. The role of law clerks has been the fo­ cus of a number of books and articles in re­ cent years, including some in this journal. All clerks take a vow of secrecy, but over the years information emerges as to how certain Justices interacted with their clerks, the work that clerks performed, and, occasionally, a tid­ bit about some judicial quirk. Richard Arnold clerked for Justice William J. Brennan dur­ ing the Term that the Court heard and de­ cided one of the key cases in the so-called due-process revolution, Mapp v. Ohio (1961), which extended the protections of the Fourth Amendment to the states as well as the federal government. Arnold kept a diary of his time in Brennan’s chambers, and Professor Polly J. Price of the Emory University School of Law uses that diary to explore the Court’s thoughts and processes in deciding Mapp. Finally, under the sponsorship of Justice Ruth Bader Ginsberg, Professor Emerita Jill Norgren gave a slide show presentation to the Association ofthe Bar ofthe City ofNew York in October 2008, and her article in this issue of the Journal grew out of that talk. Professor Norgren, who for many years taught govern­ ment at the John Jay School ofCity University of New York, is...