{"title":"Arthur A. Thomas: A Hero of a Valet","authors":"Todd C. Peppers","doi":"10.1111/jsch.12277","DOIUrl":"10.1111/jsch.12277","url":null,"abstract":"","PeriodicalId":41873,"journal":{"name":"Journal of Supreme Court History","volume":"46 3","pages":"271-279"},"PeriodicalIF":0.1,"publicationDate":"2022-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45025583","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Louis D. Brandeis and the Death of Samuel D. Warren","authors":"Peter Scott Campbell","doi":"10.1111/jsch.12278","DOIUrl":"10.1111/jsch.12278","url":null,"abstract":"","PeriodicalId":41873,"journal":{"name":"Journal of Supreme Court History","volume":"46 3","pages":"280-291"},"PeriodicalIF":0.1,"publicationDate":"2022-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41322888","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"“Destructive to Judicial Dignity”: The Poetry of Melville Weston Fuller","authors":"Todd C. Peppers, Mary Crockett Hill","doi":"10.1111/jsch.12266","DOIUrl":"10.1111/jsch.12266","url":null,"abstract":"","PeriodicalId":41873,"journal":{"name":"Journal of Supreme Court History","volume":"46 2","pages":"148-161"},"PeriodicalIF":0.1,"publicationDate":"2021-10-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47906179","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"A Note from the Editor (Emeritus)","authors":"Melvin I. Urofsky","doi":"10.1111/jsch.12264","DOIUrl":"10.1111/jsch.12264","url":null,"abstract":"","PeriodicalId":41873,"journal":{"name":"Journal of Supreme Court History","volume":"46 2","pages":"143-145"},"PeriodicalIF":0.1,"publicationDate":"2021-10-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46824962","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The dissenting opinion plays a paradoxical role in American law. On the one hand, it weakens what Judge Learned Hand, an avowed opponent of dissenting opinions, called the “monolithic solidarity on which the authority of a bench of judges so largely depends.”1 On the other hand, according to Justice William J. Brennan, a vigorous defender of the dissenting opinion, it “safeguards the integrity of the judicial decisionmaking process by keeping the majority accountable for the rationale and consequences of its decision.”2 The paradox of the dissenting opinion is inherent in the unique nature of the judiciary among the three branches of the federal government. Unlike the legislative and executive branches, the judiciary does not command obedience by the threat of force but instead seeks to persuade through the power of reason. Our courts do not act; they speak. Like the prophets of the Old Testament, the power of the Court is in its voice. This has been recognized since the very beginning. It is why Hamilton emphasized, in that famous passage in Federalist 78, that the judiciary “may truly be said to have neither force nor will, but merely judgment.”3 And it is surely why Chief Justice John Marshall— in words no less familiar to lawyers than Hamilton’s—justified the function of judicial review by his emphatic reference to the “duty of the judicial department to say”— to say—“what the law is.”4 This is what Professor Alexander Bickel called “the mystic function” of the Supreme Court. When it speaks through its opinions, it provides the symbolic “voice of the Constitution,” by articulating and defending “a coherent body of principled rules” of law that stand above ordinary politics.5 Indeed, when the Court is interpreting and enforcing the rules established by the Constitution—the supreme law of the land—its rulings even stand above, and can nullify, ordinary laws enacted through the democratic process established in Article I. So, it is critical that the Court get it right. Because the Court’s authority is ultimately dependent on its ability, through its written opinions, to win the assent of the political branches of government, we can see why the Court’s credibility is at its zenith when the Court speaks as one. The Marshallian postulate that it is the “duty of
{"title":"The Lone Dissenter","authors":"Charles J. Cooper","doi":"10.1111/jsch.12269","DOIUrl":"10.1111/jsch.12269","url":null,"abstract":"The dissenting opinion plays a paradoxical role in American law. On the one hand, it weakens what Judge Learned Hand, an avowed opponent of dissenting opinions, called the “monolithic solidarity on which the authority of a bench of judges so largely depends.”1 On the other hand, according to Justice William J. Brennan, a vigorous defender of the dissenting opinion, it “safeguards the integrity of the judicial decisionmaking process by keeping the majority accountable for the rationale and consequences of its decision.”2 The paradox of the dissenting opinion is inherent in the unique nature of the judiciary among the three branches of the federal government. Unlike the legislative and executive branches, the judiciary does not command obedience by the threat of force but instead seeks to persuade through the power of reason. Our courts do not act; they speak. Like the prophets of the Old Testament, the power of the Court is in its voice. This has been recognized since the very beginning. It is why Hamilton emphasized, in that famous passage in Federalist 78, that the judiciary “may truly be said to have neither force nor will, but merely judgment.”3 And it is surely why Chief Justice John Marshall— in words no less familiar to lawyers than Hamilton’s—justified the function of judicial review by his emphatic reference to the “duty of the judicial department to say”— to say—“what the law is.”4 This is what Professor Alexander Bickel called “the mystic function” of the Supreme Court. When it speaks through its opinions, it provides the symbolic “voice of the Constitution,” by articulating and defending “a coherent body of principled rules” of law that stand above ordinary politics.5 Indeed, when the Court is interpreting and enforcing the rules established by the Constitution—the supreme law of the land—its rulings even stand above, and can nullify, ordinary laws enacted through the democratic process established in Article I. So, it is critical that the Court get it right. Because the Court’s authority is ultimately dependent on its ability, through its written opinions, to win the assent of the political branches of government, we can see why the Court’s credibility is at its zenith when the Court speaks as one. The Marshallian postulate that it is the “duty of","PeriodicalId":41873,"journal":{"name":"Journal of Supreme Court History","volume":"46 2","pages":"229-240"},"PeriodicalIF":0.1,"publicationDate":"2021-10-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44495642","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Law Clerk John Costelloe's Photographs of the Stone Court Justices, October 1943","authors":"John Q. Barrett","doi":"10.1111/jsch.12267","DOIUrl":"10.1111/jsch.12267","url":null,"abstract":"","PeriodicalId":41873,"journal":{"name":"Journal of Supreme Court History","volume":"46 2","pages":"162-180"},"PeriodicalIF":0.1,"publicationDate":"2021-10-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48355082","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
President Richard Nixon’s nominations of Judge Clement F. Haynsworth Jr. and Judge G. Harrold Carswell to the Supreme Court in 1969 and 1970 demonstrated his allegiance to the White South and Sunbelt South. Nixon used the election victory as an opportunity to repay his one million southern constituents for their votes while disregarding the interests of Black Americans. His Supreme Court nominees would fill the vacancy of Associate Justice Abe Fortas, who resigned from the Supreme Court amid allegations of involvement in a financial scandal. The nominations were a larger ploy in President Nixon’s strategy of appealing to disillusioned White southern voters. They felt betrayed by the Democratic Party as the national coalition gradually became more inclusive of Black Americans and adopted a stronger civil rights platform throughout the 1950s and 1960s.1 Thus, the president attempted to fulfill three objectives: (1) roll back the civil rights gains of the Warren Court, which many conservatives viewed as increasingly liberal; (2) placate the majority of southern Christians throughout the region who were angry with the High Court’s decisions removing prayer (1962) and Bible reading (1963) from the public schools; and (3) solidify his power base among the White South. Nixon, who was looking ahead to the 1972 presidential election, wanted not only to deprive George Wallace, the hardright segregationist governor of Alabama, of votes but also to demonstrate to the White South that his racial views had changed since leaving political office in 1961.2
{"title":"Striving for Civil Rights: Senator Edward W. Brooke, President Richard Nixon's “Southern Strategy” and the Supreme Court","authors":"Jordan Alexander","doi":"10.1111/jsch.12274","DOIUrl":"10.1111/jsch.12274","url":null,"abstract":"President Richard Nixon’s nominations of Judge Clement F. Haynsworth Jr. and Judge G. Harrold Carswell to the Supreme Court in 1969 and 1970 demonstrated his allegiance to the White South and Sunbelt South. Nixon used the election victory as an opportunity to repay his one million southern constituents for their votes while disregarding the interests of Black Americans. His Supreme Court nominees would fill the vacancy of Associate Justice Abe Fortas, who resigned from the Supreme Court amid allegations of involvement in a financial scandal. The nominations were a larger ploy in President Nixon’s strategy of appealing to disillusioned White southern voters. They felt betrayed by the Democratic Party as the national coalition gradually became more inclusive of Black Americans and adopted a stronger civil rights platform throughout the 1950s and 1960s.1 Thus, the president attempted to fulfill three objectives: (1) roll back the civil rights gains of the Warren Court, which many conservatives viewed as increasingly liberal; (2) placate the majority of southern Christians throughout the region who were angry with the High Court’s decisions removing prayer (1962) and Bible reading (1963) from the public schools; and (3) solidify his power base among the White South. Nixon, who was looking ahead to the 1972 presidential election, wanted not only to deprive George Wallace, the hardright segregationist governor of Alabama, of votes but also to demonstrate to the White South that his racial views had changed since leaving political office in 1961.2","PeriodicalId":41873,"journal":{"name":"Journal of Supreme Court History","volume":"46 2","pages":"206-228"},"PeriodicalIF":0.1,"publicationDate":"2021-10-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47050409","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Renee Knake Jefferson and Hanna Brenner Johnson, Shortlisted: Women in the Shadows of the Supreme Court. New York: New York University Press, 2020, xiv + 287 pp.","authors":"Paul Kens","doi":"10.1111/jsch.12273","DOIUrl":"10.1111/jsch.12273","url":null,"abstract":"","PeriodicalId":41873,"journal":{"name":"Journal of Supreme Court History","volume":"46 2","pages":"258-262"},"PeriodicalIF":0.1,"publicationDate":"2021-10-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45030767","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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