Introduction

Abstract

Introduction Melvin I. Urofsky Chairman, Board of Editors It has now been seven years since I took over as editor of this Journal, and I am con­ stantly surprised at the infinite variety of sub­ jects that fall within the rather broadly defined topic of “Supreme Court history.” To quote Shakespeare, it is “an ever-changing delight.” I hope the readers share my pleasure at the wide range of topics discussed between our covers. This issue is a case in point. The first article grows out of a sister enterprise of the Society, the Documentary History of the early Supeme Court, headed by Dr. Maeva Marcus. Although we assume that there have always been clean lines between the different branches of government—indeed, we believe that the Constitution mandates such a separa­ tion of powers—the fact of the matter is that early in our history government was very fluid, and the members of each branch real­ ized that there would be times when murki­ ness rather than clarity would be desirable in relations among the branches. Elliott Ashke­ nazi, one of the associate editors of the Docu­ mentary History project, explores one such instance in an area of law about which we hear little these days, admiralty. Salmon P. Chase did not become Chief Justice until the Lincoln administration, a time when most things Jacksonian had been repudiated. Yet according to Mark A. Graber, time moves more slowly in thejudicial branch than it does in the legislative or executive, whose members must face re-election periodi­ cally. Just as Franklin D. Roosevelt’s appoint­ ees continued to have an impact on the Court through the Warren era, so, Graber claims, the Jacksonian nominees laid the basis for an ac­ tivism that would have appalled Old Hickory. When we think ofthe Supreme Court and criminal justice, we rarely think of the people involved, concentrating instead on the princi­ ples enunciated. For example, we know far more about the Miranda warning than we do about Miranda the man. If it had not been for Anthony Lewis’s classic Gideon’s Trumpet —and the movie made from it starring Henry Fonda—we would probably not know too much about the cause of one of the Court’s great cases, Gideon v. Wainwright. In the late 1 2 JOURNAL OF SUPREME COURT HISTORY nineteenth century the Court had to deal with what was surely one ofthe most unusual cases in its history, a seemingly simple death pen­ alty case from Utah. However, as Sidney Harring and Kathryn Swedlow show, it was far from simple for anyone, much less the Jus­ tices. The article by C. Ellen Connally origi­ nally came to us in the form of a student essay submitted for the Hughes-Gossett award. Al­ though the panel did not choose it, we were so impressed with the work that we asked her to rework it and resubmit it as a regular article. In that version, presented here, Judge Connally takes a close look at the reputation the firstJus­ tice, John Marshall Harlan, enjoyed as a liberal on racial matters, and questions whether that reputation is fully deserved. In the two decades surrounding the turn of the twentieth century, the Court dealt with two great matters: race and private property rights. We do not often link the two together, but Pro­ fessor David E. Bernstein suggests that per­ haps we should, since, he argues, both the Plessy doctrine and the basis for Lochner v. New York were cut from the same bolt ofcloth. And last, but surely not least, we keep up with the great outpouring of works on the Su­ preme Court through our veteran reviewer, D. Grier Stephenson, Jr., and the “Judicial Book­ shelf.” Herein lies a rich repast. Enjoy! ...