Associate Justice Research Articles

Supreme Injustice: Slavery in the Nation’s Highest Court by Paul Finkelman

Reviewed by: Supreme Injustice: Slavery in the Nation’s Highest Court by Paul Finkelman Dinah Mayo Supreme Injustice: Slavery in the Nation’s Highest Court. By Paul Finkelman. The Nathan I. Huggins Lectures. (Cambridge, Mass., and London: Harvard University Press, 2018. Pp. [xii], 287. $35.00, ISBN 978-0-674-05121-8.) In addition to editing, coediting, and cowriting volumes on topics in U.S. cultural, political, and legal history, Paul Finkelman is the author of several books on the politics of slavery. In Supreme Injustice: Slavery in the Nation’s Highest Court, he turns to the proslavery decisions of Chief Justice John Marshall, Associate Justice Joseph Story, and Chief Justice Roger B. Taney, the U.S. Supreme Court’s most famous antebellum jurists. Although historians have looked closely at Taney’s superfluously racist defense of slavery in Dred Scott v. Sandford (1857), Finkelman maintains that that case was the culmination of proslavery judgments that began in 1801. Together the justices facilitated the deterioration of sectional harmony and, by extension, the deaths of more than 600,000 Americans. Any of them could have, Finkelman argues, taken advantage of language in the Constitution that could have been used to combat slavery, protect the rights of free African Americans, and effectuate a peaceful, political resolution of slavery. Finkelman provides concise yet informative examinations of the justices’ proslavery jurisprudence through case law, statutes, speeches, letters, archival and historical society collections, newspapers, and scholarly literature. Each chapter contains a short biography and a historiographical discussion that explain how historians have insulated Marshall, Story, and to an extent, Taney from slavery. This trend is especially odd in Marshall’s case, since he was a Virginia slaveholder who crafted jurisprudence that protected criminal slave traders, wrote court opinions to reverse successful lower court freedom suits, sending freed persons back to slavery, and belonged to the American Colonization Society. Story was more complex. He was a New Englander, did not own slaves, and publicly opposed slavery. His time on the Court began during Marshall’s tenure and ended nearly a decade after Taney’s appointment in 1836. Even Story’s early opinions while he was on the Court opposed slavery, including a vote to free the Amistad Africans. However, Story’s ruling in Prigg v. Pennsylvania (1842) nationalized slavery and left free African Americans open to kidnapping. He was labeled the “slave-catcher-in-chief” by abolitionists (p. 170). Taney, like Marshall, was a southern slaveholder who was castigated for the Dred Scott decision. But Taney even experienced a brush with scholarly expiation in the early twentieth century, when historians tried to revise his image. Finkelman debunks these revisions by presenting the proslavery decisions and racist statements that Taney made throughout his career. A welcomed addition is Finkelman’s exposure of Taney’s flawed historical thinking in his Dred Scott opinion. Regrettably, history is still often viewed through a lens that ignores the diverse history of the founding, which included [End Page 155] African Americans’ right to vote in several states and the antislavery position of many of the Framers. Supreme Injustice accomplishes its primary goal by exposing how each justice furthered the interests of slavery. It also introduces readers to freed persons, slaveholders, governors, kidnappers, and abolitionists to exemplify the human cost of Supreme Court rulings. General readers, college students, and professional historians will gain a deeper understanding of the Court and the crisis over slavery. Yet the book is not without shortcomings. Finkelman never fully explains how the justices, especially the slave owners, could have drawn antislavery conclusions from a proslavery Constitution. Additionally, conclusions about Story’s views of Virginians and his transformation from an antislavery to a proslavery position are less than satisfying. In the chapter dedicated to Story, Finkelman determines that Story’s nationalism and fears over disunion instigated the justice’s proslavery rulings after the Nullification Crisis of 1832–1833. However, in the book’s coda, Finkelman questions the validity of a similar interpretation offered by a leading biographer of Story. These flaws do not diminish the book’s contributions. Supreme Injustice is readable, well-documented, and amply researched scholarship that offers a fresh look at the nineteenth-century Supreme Court, with...

Could Justice Thomas Preside Over President Trump's Impeachment Trial?

During most impeachment trials, the Vice President presides over the Senate. But when “the President of the United States is tried,” the Constitution states that “the Chief Justice shall preside.” If President Trump were impeached by the House of Representatives, we can expect Chief Justice John G. Roberts, Jr. to cross the street from the Supreme Court to the Capitol. But what if Roberts can’t, or won’t do the job? Does President Trump get off scot-free? We don’t think so. Instead, the most senior Associate Justice would serve as acting Chief Justice. As a result, Clarence Thomas would preside.

Succession, Opportunism, and Rebellion on State Supreme Courts: Decisions to Run for Chief Justice

We examine decisions to seek promotion on state courts of last resort, focusing on the conditions when an associate justice will run for the position of chief justice. We analyze data including all chief justice elections from 1990 to 2014 in the states that elect this position. We construct a taxonomy of associate justices who seek the chief justice position, then use regression analysis and postestimation techniques to better understand these choices. Our findings indicate that judicial actors who seek electoral promotion are strategic and motivated by ideological preferences rather than institutional features or raw ambition.

Associate Justice Sonia Sotomayor as framed by Spanish-language and English-language news media

As Latinas assume greater roles in U.S. politics and the judicial branch, are media depictions reflective of these new roles or do negative minority stereotypes persist? This study compared the frames used by The Miami Herald, an English-language newspaper and El Nuevo Herald, its Spanish-language counterpart, during Sonia Sotomayor’s nomination and confirmation as the first Hispanic associate justice on the U.S. Supreme Court. The study explored whether the stronger media identification of the Spanish language newspaper influenced the types of frames used to depict Sotomayor’s rise to the high court. This investigation found that El Nuevo Herald emphasized Sotomayor as a successful woman and pioneer. The Miami Herald highlighted the ideological themes of partisan politics. As a result, the greater cultural identification with the audience may avoid manifest negative stereotypes, but may exclude this audience from political and judicial discourse.

Data Without Borders: Resolving Extraterritorial Data Disputes

This paper focuses on the recent surge of cross-border data disputes, particularly between the United States and the European Union. It first explains the elaborate privacy and data processing regimes of each region, highlighting key similarities and differences. It then focuses on recent high-profile cases in both commercial and criminal contexts including: Digital Rights Ireland, Maximillian Schrems v. Data Processing Commissioner, and Microsoft Corporation v. United States. The paper focuses on the novel problems that courts now face in reconceptualizing digital extraterritoriality. With a heavier focus on the Second Circuit's recent decision in the Microsoft case, the paper discusses the shortcomings with the Second Circuit's analysis. It then proposes that courts adopt what Supreme Court Associate Justice Stephen Breyer recently coined active cross-referencing to compare U.S. case law and EU case law when dealing with cross-border data processing and privacy disputes in order to better understand what extraterritoriality should mean in a borderless digital world.

Attorney General Robert H. Jackson and President Franklin D. Roosevelt

Attorney General Robert H. Jackson and President Franklin D. Roosevelt JOHN Q. BARRETT I had the privilege to meet Leon Silverman, in whose memory this lecture series is named, through his longtime close colleague and friend Judge Lawrence E. Walsh,1 who was my employer, mentor, and friend. Mr. Silverman was a dedicated leader of the Supreme Court Historical Society and a giant of the private bar. In 1949, he joined the law firm that in time became Fried, Frank, Harris, Shriver & Jacobson, LLP, and ultimately he became its chairman. In addition to Judge Walsh, another connection from Leon Silverman to this lecture is the fact that one of his senior colleagues and friends in his law firm was Samuel Harris.2 In 1945-1946, four years before Silverman joined him in law practice, then-Captain Sam Harris, of the Office of the Judge Advocate General, United States Army, was a junior but quite important member of the U.S. team prosecuting Nazi war criminals at Nuremberg.3 His boss heading that team was Justice Robert H. Jackson, who was away from his job as an Associate Justice on the U.S. Supreme Court. Justice Jackson is, of course, part of my focus in this lecture. There are additional connections be­ tween past giants and this lecture. Another luminary who became, in due course, a name partner in Mr. Harris’s and Mr. Silverman’s law firm was Sargent Shriver. He was a brother-in-law of Robert F. Kennedy, who in the late 1950s, after Justice Jackson’s life­ time, moved with Mrs. Kennedy and their growing family into what had been Jackson’s home in McLean, Virginia: Hickory Hill. Indeed, a few years after that, Bob Kennedy also moved into one of Bob Jackson’s former government offices, the Office of the Attorney General of the United States. But I am getting ahead of myself. My real starting point in this lecture is this majestic Supreme Court building on two specific dates in the life of Robert Jackson. Although Franklin D. Roosevelt, the second person who is a subject of this lecture, was not present at the Court on either of the two dates that I am about to describe, his presence was felt on each. A.G. JACKSON AND PRESIDENT FDR 91 The first date was Thursday, October 13, 1932. Robert H. Jackson, then a lawyer living in Jamestown in western New York State, was in Washington, D.C., for the Conference of Bar Association Delegates and then the American Bar Association’s annual meetings, held one after the other at the Mayflower Hotel. Although Jackson was only forty years old, he had been active and risen high in local, state, regional, and national bar association activities. At the 1932 meeting, he was an officer and a program speaker at sessions of the Con­ ference of Bar Association Delegates (a predecessor to today’s ABA House of Delegates).4 On October 13, 1932, Jackson was, I assume, one of the many lawyers in Washington for the Bar meetings who was present outside this building, then under construction. Chief Justice Hughes and most of the Associate Justices were present. The Chief Justice and Bar leader John W. Davis each spoke. President Herbert Hoover wielded the trowel as the cornerstone was laid into place and secured with mortar.5 Given Jackson’s relative obscurity, I suspect that he watched from a position quite deep in the crowd. On this evening, as Game Seven of the World Series is about to be played, it seems appropriate to guess that Jackson had what we would call a “Bob Uecker seat” at the big event.6 On that date in October 1932, the idea that Jackson, a young lawyer from western New York State, would someday occupy a judicial seat in this building would have been far­ fetched. I doubt that that daydream occurred even in Jackson’s own mind, even though he had great self-confidence and ambition. And yet that came to pass, and in less than nine years’ time. Among myriad reasons for that, a key one, the necessary one constitutionally, was the person who that day was in...

“Standing on the Corner When the Bus Came By”: Harry A. Blackmun’s Appointments to the United States Court of Appeals for the Eighth Circuit (1959) and the United States Supreme Court (1970)

“Standing on the Corner When the Bus Came By”: Harry A. Blackmun’s Appointments to the United States Court of Appeals for the Eighth Circuit (1959) and the United States Supreme Court (1970) MELISSA NATHANSON Anyone familiar with Richard Nixon’s Supreme Court legacy knows about the socalled “Minnesota Twins,” the first two of Nixon’s four appointees. Warren E. Burger was sworn in as the 15th Chief Justice of the United States on June 23, 1969. Harry A. Blackmun became an Associate Justice a year later, on June 9, 1970. Blackmun and Burger shared a long history, having grown up within blocks of each other in the working class Dayton’s Bluff neighborhood on the east side of St. Paul. They attended the same grammar school, recited Bible verses in the same Sunday school class, and belonged to the same Boy Scout troop. Blackmun was best man at Burger’s wed­ ding. Their designation as “Minnesota Twins” shortly after Blackmun joined the Court played on the name of the American League baseball team that relocated to Minneapolis—St. Paul’s “twin city”—in 1961. But it also reflected the regularity with which Blackmun and Burger voted together during the early 1970s.1 Long active in Republican Party poli­ tics, the hard-charging Burger was and is widely credited with facilitating the rise of his lower-profile friend to the federal appel­ late bench and then to the Supreme Court.2 Burger never claimed responsibility for putting Blackmun on the Court, according to Blackmun, and Blackmun never directly disputed Burger’s role in either of his appointments.3 Instead, Blackmun usually 216 JOURNAL OF SUPREME COURT HISTORY stuck to broad generalities when describing how they came about. The key to becoming a federal judge, he said, was to “be on the corner when the bus comes by.”4 He quipped that at least a dozen people claimed indivi­ dual responsibility for putting him on the Supreme Court, repeating a pattern he first observed a decade earlier when “at least twenty people” took individual credit for his appointment to the Eighth Circuit Court of Appeals.5 This article seeks to present a richer account of how Blackmun’s personal and political capital helped make the unassuming Minnesotan a judge and then a Justice. In early 1959, Eighth Circuit Judge John B. Sanborn, Jr., and Burger, then a judge on the Court of Appeals for the District of Co­ lumbia Circuit, together brought Blackmun to the attention of the Justice Department as the best candidate to fill Sanborn’s seat upon his contemplated retirement. Once the no­ mination was made, Blackmun’s association with Burger almost prevented him from getting a hearing before the Senate Judiciary Committee because the junior Senator from Minnesota, resentful of Burger for having accused him of protecting subversives in government, refused to turn in his blue slip until he had time to investigate the relation­ ship between Blackmun and Burger. It was Blackmun’s surprisingly large and robust Minnesota network of professional and personal relationships that jump-started his stalled nomination when the window for judicial confirmations was about to slam shut in the run-up to the 1960 presidential election. Ten years later, a colleague of Black­ mun’s on the Eighth Circuit, Judge Pat Mehaffy of Little Rock, chartered a beneath -the-radar “southern strategy” that helped deliver Blackmun safely onto the U.S. Supreme Court after Nixon’s first two nominees for the seat vacated by Associate Justice Abe Fortas—Southerners both— were defeated in the Senate. The Road to the Court of Appeals for the Eighth Circuit Late on a Friday afternoon in early November 1958, Harry A. Blackmun, resi­ dent counsel at the Mayo Clinic in Roche­ ster, Minnesota, drove up to St. Paul to visit his former boss.6 Twenty-six years had gone by since Judge Sanborn, newly appointed to the Eighth Circuit, had hired Blackmun as his law clerk. In the depths of the Great Depression, Blackmun had returned home from Harvard Law School without a job and without any immediate prospect of getting one.7 Sanborn had thrown him a lifeline, launching him on a course to partnership...

A Tribute To Robert H. Jackson – Recalling America's Contributions To International Criminal Justice

It is an immense honor to be here. But the honor is special indeed; because it was around this time seventy-four years ago—more precisely on April 13, 1945—that Robert H. Jackson (as an associate justice of the U.S. Supreme Court) addressed this same gathering, in a classic speech titled “Rule of Law Among Nations.”

Testimony Before the United States Senate Committee on the Judiciary on the Nomination of Brett Kavanaugh for Associate Justice of the U.S. Supreme Court

Professor Rebecca Ingber testified before the U.S. Senate Judiciary Committee as it considered the nomination of Brett Kavanaugh for Associate Justice of the U.S. Supreme Court. Her testimony focused on Judge Kavanaugh's national security and international law jurisprudence, in particular, the court's role in considering international law constraints on the President's war powers, and the potential effects of this judicial approach on executive power.

Groups object to Kavanaugh nomination to U.S. Supreme Court

As confirmation hearings for D.C. Circuit Judge Brett Kavanaugh to be an associate justice on the U.S. Supreme Court got off to a tumultuous start last week, national groups representing people with disabilities have expressed their opposition to his nomination to Senate leadership, pointing to Kavanaugh's views and opinions on cases involving access to health care, self‐determination and civil rights protections.

Strategic Behavior and Leadership Patterns of Modern Chief Justices

This study uses theories of strategic behaviour, leadership change and feminist theory to examine patterns of judicial activity by the three post-Charter chief justices. Building on prior scholarship, we use various methods to examine patterns of majority voting, dissenting activity, opinion writing, ideological voting, and panel size across the 1973-2014 period. While Chief Justice Lamer and Dickson exhibited clear patterns of task leadership, we find strong evidence of strategic change by Chief Justice McLachlin after her promotion to chief. She moved from a prolific dissenter as an associate justice to a chief that exhibited behaviour of both a task and social leader, which scholars see as highly uncommon. Her efforts to solidify her central role as a collegial leader within her own court are remarkable, and took place during a period of increasing panel sizes and a shrinking court docket.

Sitting by Designation: Retired Justice Tom C. Clark’s Federal Court Service

Sitting by Designation: Retired Justice Tom C. Clark’s Federal Court Service CRAIG ALAN SMITH Introduction In March 1967, Associate Justice Tom C. Clark announced his Supreme Court retire­ ment soon after his son, Ramsey, was nominated to become U.S. Attorney General. Clark planned to retire at the end of the term to avoid any appearance of impropriety. He was sixty-seven years old, he had served on the Court for eighteen years, and he could continue judging on any other federal court with the ChiefJustice’s approval.1 Like other retired Justices, Clark brought a certain distinction when he sat “by designation,” but the impact of his decisions was—and continues to be—far greater. Over the course of ten years, literally until the day he died, Clark set a remarkable pace for himself: making over sixty visits to different Circuit Courts ofAppeals and participating in around 575 appellate cases. In addition to sitting on every geographic circuit (at the time, there were ten circuits plus the D.C. Circuit) and presiding over several district court trials, Clark also served as Special Master and on the Court of Customs and Patent Appeals (CCPA), the Court of Claims, and the Customs Court.2 Most accounts ofClark’s retirement have focused on his efforts to improve judicial administration, so much so that historian Michael Belknap concluded, “Reflecting the intensity of Clark’s interest in judicial administration and the importance of his efforts to reform it, more articles can be found on this subject than on any aspect of his work on the bench.”3 As a result, Clark’s lower court service has received scant scholarly attention. Without examining his rulings, two purported biographies mentioned some of his district court trials as well as three of his appellate opinions facing Supreme Court review.4 Other accounts of Clark’s lower court service counted his record rather than analyzing it. At times, even counting Clark’s opinions came up short.5 Therefore, Clark’s 322 JOURNAL OF SUPREME COURT HISTORY lower court judging was usually lauded for one remarkable feat—that he judged on every geographic circuit.6 However, that failed to address larger questions, for example, how he influenced opinion assignments, whether his position on lower federal courts was consis­ tent with his Supreme Court service, how he made use of Supreme Court decisions, and how his district and appellate opinions fared under circuit or Supreme Court review.7 These larger questions, including whether his appellate opinions addressed significant con­ temporary issues, are the subject of this article, which offers the first comprehensive analysis of Clark’s role and influence as a lower court federal judge. His judgments had greater impact than the geographic extent of his judging and the sheer number of his opinions. What he decided, how he reached his conclusions, and whether those rulings made a lasting difference deserve greater attention.8 Clark’s Lower Court Service and Influence Clark began his lower federal court service soon after his Supreme Court retire­ ment—in fact, much sooner than previously recognized. He sat first with the CCPA in December 1967, releasing his first opinion six months later.9 Next, he had his one and only sitting with the Court of Claims, but he authored no opinions there.10 One year later, he sat with the Second Circuit Court of Appeals, where he spent more time but did not write more opinions than in other circuits. He returned to the CCPA in June 1969 and sat with the Seventh Circuit in May 1970 before making his first appearance as a district court judge in San Francisco." Initially, Clark was hesitant to accept Chief Judge George Harris’s invitation to serve on the Northern District of California. He had never judged a jury trial; in fact, the last time he even participated in a jury trial was twenty-six years earlier as an assistant attorney general in the prosecution of two Nazi spies before a military commission. “What disturbed me,” Clark later said, “were the rules of evidence. They change from time to time.... [but] I soon found that you become accustomed to it. Instead of getting butterflies, I looked...

“Notorious RBG”: A conversation with United States Supreme Court Justice Ruth Bader Ginsburg

On February 2, 2016, Prof. Ruth Rubio-Marin, Chair of Constitutional and Comparative Public Law at the European University Institute (EUI), interviewed the U.S. Supreme Court Associate Justice Ruth Bader Ginsburg. The interview took place in the framework of the European University Institute’s annual Ursula Hirschmann Lecture, a space dedicated to stimulate research and thinking which links ideas about Europe and the study of gender. Justice Ruth Bader Ginsburg engaged in a conversation that tackled her whole persona, without making rigid divides between the professional and the personal. Deep legal analysis, personal anecdotes, and invaluable advice for future researchers and lawyers intertwine in the interview, which sheds light on important dimensions of equality law.

Scandal! Early Supreme Court News Coverage and the Justice-Journalist Divide

In January of 1900, United States Supreme Court Associate Justice Henry Brown (author of Plessy v. Ferguson) had apparently just about had it with the press. He gave what was called “[t]he principal address” before members of the New York State Bar Association in Albany and focused not principally on law, but on what he called journalism’s sensationalistic methods. “Ugly stories are told,” he told the gathered attorneys, “of spies put upon houses to unearth domestic scandals or upon the steps of public men to ferret out political secrets,” including early reports of court decisions. The greatest of the cruelties done by journalists, in Justice Brown’s estimation, were their “assaults upon private character.” The worst of the publications, he complained, were those newspapers that published Sunday editions. The spying and the invasions of privacy of which Justice Brown complained presumably included incidents involving members of the Supreme Court and others who were well-placed politically. “No man,” Justice Brown complained during his talk, “occupies a political position . . . who cannot be driven from it by a combined attack of two or three influential journals.” Brown’s media-focused speech must have been at least somewhat personal. Not only did the literally and figuratively colorful Sunday editions of newspapers annoy him (“[i]f there be another worse than these, the mind of man hath not hitherto conceived them”), but the papers’ use of illustrations was a particular irritation. “The next step in their downward career,” he complained, included the use of “[p]ictures of current events, of battles, of murders and sudden deaths, sometimes copied from photographs, oftener drawn from imagination.” Much of his talk before New York’s gathered attorneys seemed to echo language and arguments from The Right to Privacy, the influential Harvard Law Review article written by Samuel Warren and Louis Brandeis that similarly condemned newspaper sensationalism and had been published a decade before. But he also seemed directly inspired by the push-the-envelope Pulitzer newspapers of the day, known for their sensationalism; their use of color and other illustrations; and, notably, their Sunday supplements. Pulitzer used the Sunday editions to experiment with “new features and approaches,” including an insert that smelled of perfume. Pulitzer newspapers were also some of the very first to focus on scandal and celebrity. Justice Brown’s anti-media speech received coverage in multiple newspapers, including the Washington Post, the New York Times, and the Baltimore Sun. The Sun perhaps put it best when it reported simply that the Justice had “severely denounced what he termed sensational journalism.” Biographers would later call Brown a “reflexive social elitist,” and his opinions regarding the journalism of the day seem to be in line with that description. The common person may have enjoyed the Sunday supplement’s sensationalism; Justice Brown did not. The Justice-journalist divide during this period was not limited to Justice Brown’s harangue outside the courtroom. It was a time when he and the other Justices had very precise rules for those who covered the Supreme Court’s proceedings from inside the Court. First, it was suggested that no one observing the Supreme Court, including journalists themselves, could take notes on what was being said. Second, and foreshadowing today’s refusal to allow cameras in the courtroom, it was also suggested that no one was allowed to sketch the Justices as they sat during oral argument. The punishment for those who disobeyed must have been severe. As a Chicago paper explained, “Woe be to you if you violate any of the rules.” The Justices apparently so valued their privacy during the turn of the twentieth century that they even attempted to veto the now larger courtroom because it would accommodate a larger audience. Given that sort of history, it is not surprising that Justice Brown would find the more Court- and Justice-interested journalism of the day utterly unsatisfactory and invasive. This Essay explores some of that early press coverage of the Supreme Court, particularly of its Justices, and it attempts to explain what could have so provoked Justice Brown. The story is personal to Justice Brown, who was of some interest to journalists of the time, but it is also much broader. A Supreme Court press corps that had once been at least somewhat compliant and respectful of the Court became more critical of both the Justices and their decisions, and more interested in them as personalities. Ultimately, this Essay argues that such a history — one that began with at least partial quiet deference and turned distinctly toward sensationalism — laid the groundwork for Justice Brown’s anti-journalism speech and the distrust shown to media by today’s Justices.

Statement of Lawrence B. Solum: Hearings on the Nomination of the Honorable Neil M. Gorsuch to be an Associate Justice of the Supreme Court of the United States

This statement addresses the nature of originalism. Originalism consists of three core ideas: (1) the original meaning of the constitutional text is its public meaning; (2) the original meaning of the text is fixed at the time the text was framed and ratified; and, (3) judges should be bound by the original meaning of the text. Much of the public discussion of originalism has focused on myths: originalism does not attempt to answer the question, What would Madison do?, and many other charges against originalism are mythical as well. Originalism is in the mainstream of American jurisprudence historically, and originalism should be acceptable to Americans from a broad range of political orientations. The two core arguments for originalism focus on the rule of law and legitimacy.

A New Chief Justice in the Sight of His Predecessor: Stone and Hughes, Summer 1941

Most Chief Justices of the United States have died in office. And few served initially as an Associate Justice. Thus after the founding period, only two Chiefs—Charles Evans Hughes and Warren E. Burger—ever saw an Associate Justice colleague be appointed to succeed him as Chief Justice. This article chronicles that history. It also describes the rare instance in Summer 1941 of such a succession, and the telegrams and letters that Chief Justice Hughes and his colleague Associate Justice Harlan Fiske Stone exchanged as Hughes retired and Stone was appointed to be his successor.

“How Do You Feel About Writing Dissents”? Thurgood Marshall’s Dissenting Vision for America

“How Do You Feel About Writing Dissents”? Thurgood Marshall’s Dissenting Vision for America CHARLES L. ZELDEN On October 2, 1967, with his family, friends, and admirers and President of the United States Lyndon B. Johnson in atten­ dance, Thurgood Marshall stood up in the chamber of the Supreme Court of the United States, put his hand on a Bible, and swore to “administerjustice without respect to persons, . . . [to] do equal right to the poor and to the rich, and that [he would] faithfully and impartially discharge and perform all the duties incumbent upon [him] . . . under the Constitution and laws of the United States.” With these words, Marshall became the nation’s newest, and first African American, Associate Justice ofthe United States Supreme Court. A clearly emotional Marshall confessed at the time how “he wished his daddy could have been there.” Still, Marshall added, hejust knew that his father “was on some street comer in heaven shaking his finger and saying, ‘I knew my boy would do it.’”1 Without doubt, this was one ofMarshall’s proudest days. Only his victory as a lawyer in Brown v. Board of Education (1954) came close to generating in him the feelings of accomplishment and professional vindication broughtby his elevation to the Supreme Court. Marshall’s ascent to the peak of the legal profession filled him with a profound feeling of satisfaction. As he later explained to biographer Carl T. Rowan, “How did I feel? Hell, like any other lawyer in America would feel. Real proud—because there is no greater honor a lawyer can get. I felt especially great because I knew President Johnson was using me to say something important to the nation.”2 Marshall’s feelings ofpride and achieve­ ment did not last, however. As the ideological makeup of the Court and the political culture of the nation shifted over time to the right, Marshall increasingly became isolated from, and then marginalized by, his fellow Justices; with each passing year, a frustrated, angry, and often bitter Marshall saw the landmarks ofhis life’s work—the social, political, economic, and constitutional changes that he had helped 78 JOURNAL OF SUPREME COURT HISTORY bring about at such great cost as the head ofthe National Association for the Advancement of Colored People (NAACP) Legal Defense and Education Fund, Inc. (LDF)—being circum­ scribed, abandoned, or reversed. By the end of his tenure on the Court, Marshall, by now cantankerous and belligerent, would ask prospective law clerks a simple yet revealing question by which to determine their suitabil­ ity to be one of his clerks: “How do you feel about writing dissents?”3 That bitter question was not one that Marshall had ever expected to have to ask. The Supreme Court that he joined in the fall of 1967 was filled with familiar and philo­ sophically compatible friends and allies. Marshall and Chief Justice Earl Warren had a close relationship based on mutual admira­ tion, respect, and genuine friendship. In William J. Brennan, Jr., Marshall found a friend and ally whose worldview and, more important, whose understanding of law and the Constitution, harmonized perfectly with his own. Although his relationships with the other Justices were not always as congenial and familiar as those with Warren and Brennan, Marshall nonethelessjoined a Court with a clear liberal majority, one that his appointment as Justice strengthened. For the next several years Marshall regularly voted in the majority, participating in the Supreme Court’s ongoing redefinition of individual and group civil rights and liberties. He joined majorities in such landmark cases as Green v. County School Board of New Kent County (1968), in which a unanimous Supreme Court charged Southern school boards “with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination is eliminated root and branch”;4 Tones- v. Alfred H. Mayer Co.(1968),5 which applied the Thirteenth Amendment and the 1866 Civil Rights Act to preclude all forms of racial discrimination in the sale or leasing of private property, including, as in that particular case, when the discrimination was done entirely by a private citizen with no government support or action; Allen v. BoardofElections...

McCleskey and the Discretionary Death Decision

While reflecting on his fifteen-year tenure as an associate justice of the Supreme Court of the United States, Justice Lewis Powell stated that, if given the chance, he would change his vote in only one of the hundreds of cases decided during his time on the Court. In what Justice Powell later described as “a mistake,” he joined the majority and authored the 5-4 opinion of McCleskey v. Kemp. The direct effect of Justice Powell’s err in judgment was an affirmation of the lower court’s decision to uphold the death sentence for Warren McCleskey, resulting in his execution in 1991. Justice William J. Brennan’s dissent foretold of how the decision would be received; after likening the McCleskey majority to infamously derided cases Dred Scott v. Sanford and Plessy v. Ferguson, the scathing dissent closed with Justice Brennan remarking, “However many criticisms of today's decision may be rendered, these painful conversations will serve as the most eloquent dissents of all.” Since McCleskey, Justice Brennan’s words have proven prophetic since the majority opinion, although good law, is maligned by many legal scholars as endorsing unequal protection under the law on the basis of race. Justice Powell’s error in judgment has impacted the fate of every individual sentenced to death in the United States since he authored the opinion of the Court in 1987; moreover, it allowed for the pernicious racial bias in the criminal justice system to insulate itself from change, fearing that acknowledging the validity of McCleskey’s claim would “[throw] into serious question the principles that underlie our entire criminal justice system.” The apprehension on the part of the Court failed to quell doubts about invidious, irrelevant characteristics influencing the decision to take the life of a human being. To be consistent with the Constitution of the United States, there must be proof that capital sentencing statutes can operate in a way that does not inflict undue harm through arbitrary and capricious sentencing decisions. The significance of a death sentence has not been lost on the Court. Death is a consequence from a decision made in an arbitrary or capricious manner, the Court has emphasized that “death is different,” and, accordingly, requires greater safeguards when applying such a grave sentence. “[T]he qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination. An exploration of McCleskey’s claims, when contrasted with of the intrinsic purpose of the death penalty as a criminal sanction, reveals the peril of affording wide discretionary latitude when determining whether to apply the irreversible sentence of death. Accordingly, the Court must critically evaluate the death penalty not as an abstract hypothetical divorced from practical application but as an irreversible punishment that impacts human beings.

Justice Breyer's Constitutional Jurisprudence: Active Liberty and Pragmatism

ABSTRACTThis analysis of Associate Justice Stephen Breyer's jurisprudence proceeds from his first book devoted to this subject, Active Liberty, a term he derives from Benjamin Constant and that Breyer defines as participatory democracy. Active Liberty and two subsequent books, as well as numerous off-bench writings, explain his jurisprudence of pragmatism, an approach he contrasts with originalism. This article addresses three general questions: Is Breyer's jurisprudence, founded on active liberty and pragmatism, fundamentally consistent with the design of the Constitution? Does his jurisprudence support his opinions in the constitutional decisions examined, a number of which are also treated in his books and articles? In a system that is designed to empower and to limit government, do his jurisprudence and judicial decisions constrain judges? This last question is especially important because of Breyer's thesis “that courts should take greater account of the Constitution's democratic nature when they interpret constitutional and statutory texts.” Breyer believes that his theory of active liberty ameliorates the democratic anomaly between a system “based on representation and accountability” that at the same time entrusts “final or near-final” authority to unelected judges who are insulated from public opinion.

Major Federal Environmental Decisions, 2016

This paper highlights major developments in the courts in the field of environmental law during the 2015-16 term, focusing on the potential impacts of the passing of Associate Justice Antonin Scalia. Justice Scalia left a long and indelible jurisprudential shadow on environmental law. Over his nearly 30 years on the bench, the former professor of Administrative Law shaped – sometimes single-handedly – a multitude of areas that serve as stock-and-trade of environmental, energy and natural resources lawyering across the nation, here focusing on standing, takings and deference to environmental agency rule-making.