The Judicial Bookshelf

D. GRIER STEPHENSON, JR.[1]

Few students of the Supreme Court and the Constitution read very far before encountering McCulloch v Maryland.[2] In this decision, the Court held that Congress could charter a national bank even without express authorization in the Constitution and that the states could not tax it. The ruling formally recognized both a deep reservoir of legislative power within the Constitution and a subordinate place for the states in the federal system. Moreover, the Supreme Court, as expounder of the Constitution, would correspondingly have a narrow but nonetheless essential role, protecting national interests from improper inroads by the states. Yet as important as the ruling was in cementing the foundations of national supremacy Chief Justice Marshall's opinion of the Court was vigorously criticized in some quarters at the time. Marshall even felt compelled to resort to the newspapers in anonymously written defenses of his position.[3]

Nearly a decade later the controversy over McCulloch had not subsided. In a review of Kent's Commentaries, Hugh Swinton Legare, later Attorney General and Secretary of State in President Tyler's administration, declared that the decision of 1819 "gave the government an unbounded discretion in the choice of 'means' to effect its constitutional objects. . . . [T]here is no end to the consequences that may and will be deduced from the doctrine in McCulloch's case," he declared.

For Legare, the Supreme Court had renounced a responsibility "We venture to predict that no act of the federal government will ever be pronounced unconstitutional in that court, for the simple reason that the principle of McCulloch's case covers the whole ground of political sovereignty and consecrates usurpation in advance." In the short run, Legare was right. From 1803 until the unusual circumstances of the Dred Scott case in 1857, the Supreme Court refrained from declaring any act of Congress unconstitutional. Still, the real significance of Legare assessment went further than dissatisfaction with the holding in the bank case. Legare explicitly accepted the Court's role as guardian of the Constitution, expecting the Court to protect state interests against inroads by Congress. Legare's critique, therefore, was no attack on judicial review, but a pointed reprimand. The Court had read national powers so broadly as to make its future exercise against Congress highly unlikely McCulloch threatened state prerogatives.

Skirmishes over McCulloch of course did not conclude the debate. The political heirs of Marshall and Legare continue the dialogue on the nature of constitutional limitations and the role of the Supreme Court in giving them meaning. The subject guarantees that the Supreme Court will not soon suffer from inattention in political and legal literature, as recent volumes attest.

The Justices

John Marshall's leadership in decisions such as McCulloch during some 34 years as head of the Supreme Court earned him the acclamation of "the great Chief Justice." Leadership is the subject of Robert J. Steamer's Chief Justice.[5] He observes correctly that in a few instances "the presidential choice of a chief justice has been the president's most enduring contribution to the nation's political culture."[6] This is certainly true with President John Adams' appointment of Marshall in the waning days of his administration in 1801. It is probably true with respect to President Hoover's nomination of Charles Evans Hughes in 1930, President Grant's choice of Morrison Remick Waite in 1874, and President Harding's selection of William Howard Taft in 1921. It may even be true of President Eisenhower's naming of Earl Warren in 1953. Surely few of Eisenhower's decisions and policies have had a more lasting impact on the nation.

Rather than undertaking a chronological study of the chief justices from Jay through Burger, Steamer has instead adopted a comparative approach, examining chiefs in the various ways in which leadership has manifested itself Coverage is uneven, as one would expect. Jay Rutledge, and Ellsworth, the first three chief justices, served for very short periods (Rutledge for only six months), and with a relative scarcity of cases, the opportunity for measurable impact was small. Moreover, attention given to Chief Justice Burger is less than to, say Warren or Fuller because Steamer completed his writing prior to Burger's retirement in 1986 – before the record for the fifteenth Chief Justice had fully run its course.

Part of the context of judicial leadership is the change the office has experienced since 1789, especially in arenas outside the Supreme Court. This makes comparisons more difficult. Public expectations for a Warren Burger were vastly different from those for a John Marshall or a Roger Taney Aside from working one's influence on public policy through cases decided by the Court (the internal dimension of leadership), today's Chief Justice confronts demands outside the Court that are far removed from those of the nineteenth century The external dimension of the chief justiceship now requires the occupant to preside over the Judicial Conference of the United States and to supervise the Administrative Office of the United States Courts as well as to handle other administrative chores, to lobby for legislation to improve the administration of justice, to defend the judiciary from political assaults from without, to communicate with the organized bar and law schools on matters of common interest, and to fulfill a ceremonial component in the public's eye. All of these, says Steamer, require "an uneven amalgam of managerial dexterity social adroitness, and intellectual powers," and, one should add, political acumen.[7]

Steamer attempts to answer a series of questions: What has been a particular chiefs impact on constitutional development? What are the qualities which have made some chief justices great leaders? Why has prior political success or legal accomplishment not prevented mediocrity in the office? What connection appears between judicial statesmanship and legal craftsmanship? From answers to these and related questions, Steamer generates not a quantitative measure of leadership but a characterization of those who excelled and why Noting Charles Evans Hughes' observation that "the ways in which the Court does its work give [the chief justice] a special opportunity for leadership," Steamer attempts to provide a look at how fifteen chiefs have used that "special opportunity"

Additionally judicial greatness requires that "the incumbent be a judge whose views of the Constitution and of the law must be thoughtfully formulated and expounded in a written opinion... ." The Chief must be able "to carry his intellectual weight" in order to build and to maintain respect with colleagues and with the Court's constituencies in the legal profession, the academy and the public at large. Potentially in the right hands the office of Chief Justice in power, prestige and authority can be, and sometimes has been, "second only to the presidency"

Steamer's conclusions confirm widely held impressions. There are few surprises. In overall performance, the nation has been well served by holders of an office the Constitution mentions but does not describe. Excepting John Rutledge who hardly had a chance, Steamer believes that "all have left a personal imprint on the Court's work and in greater or less degree on American constitutional development." Marshall, Hughes, and Warren receive the highest ratings, yet the author is quick to add that they necessarily had neither "the most imaginative minds" nor were they necessarily "the most deft managers." Especially for Marshall and Hughes, they succeeded because they were "very skillful politicians" in the internal and external dimensions of judicial life.[9]

Contributing to leadership is the combination of personalities on the bench at a particular time. While the chiefs character and demeanor are surely factors, so are the character, demeanor, and attitudes of each of the associate justices. Insights into seventeen present and former justices appear in The Supreme Court and Its Justices,"[11]a collection of essays on the Supreme Court and its members. Edited by Jesse H. Choper, the volume reprints twenty-six articles from the ABA Journal, including eleven by and twelve about, individual justices. In a few instances, an essay about one justice is authored by another, as in the case of Chief Justice Warren's "Chief Justice Marshall: Expounder of the Constitution."

Choper has divided the volume into seven sections, six of which contain two or more essays: (1) Establishment of the Power of Judicial Review, (2) Portraits of Past Justices, (3) Qualities, Characteristics and Activities of Past Justices, (4) The Court as a Center of Controversy (5) Internal Operation of the Court, (6) Appointment of New Justices, and (7) Lawyering Before the Court. While most of the essays are recent in origin, several are not. "Roger Brooke Taney: A Great Chief Justice" by Charles Evans Hughes appeared originally in 1931 and contributed to the restoration of Chief Justice Taney's reputation in scholarly circles. Harry C. Shriver's "Oliver Wendell Holmes: The Lawyer" was first published in 1938 and is one of two essays in the book on the Olympian. Robert H. Jackson assessed "The Judicial Career of Chief Justice Charles Evans Hughes" while he was Attorney General, just before his own appointment to the Court following Harlan Stone's move to the center chair in 1941. And Justice Harold H. Burton's classic 'Marbury M Madison: The Cornerstone of Constitutional Law" was featured in a 1950 issue of the Journal.

Among the most recent entries are two by Justice Lewis E Powell, Jr., who retired from the Supreme Court in June 1987, after fifteen and a half years of service. "Myths and Misconceptions About the Supreme Court" and "What Really Goes on at the Supreme Court" are instructive not only about the Court but about Justice Powell as well. Implicit in each is deep institutional loyalty and affection, a hope for public appreciation of the nature of the Court's work, and a belief in civility and collegiality if the Justices are to do their work well. "If I seem partisan on behalf of the Court, it is because lam," says Powell.[12]

Myths Justice Powell debunks include "long 'vacations,'" "the mysteriously light workload" (where he takes issue with the late Justice Douglas' contention that the Court is "vastly underworked"), "law clerks' influence," the impropriety of five-four decisions (where he notes that the kinds of issues the Court faces guarantee a large number of such splits each term), and the prevalence of "discords" and "blocs." Journalists who interpret the Court's work to the public fail "to understand that judges, like lawyers, may disagree strongly without personal rancor or ill will. The fact is that a genuine cordiality exists among the justices.... [U]se of the word bloc reflects a serious misconception of the way the Court functions and suggests some invidious degree of collaboration in the decisional process." [13]

Written after publication of The Brethren,"[14] his second essay argues that "the extent of our secrecy is greatly exaggerated." [15] Engaging in what Holmes once called "the elucidation of the obvious," Powell reminds readers that secrecy for deliberations is essential. "The integrity of judicial decision making would be impaired seriously if we had to reach our judgments in the atmosphere of an ongoing town meeting." Similarly Justice Powell defends the Court against charges in the media that the institution has become "rudderless." The absence of a dominant "judicial or ideological philosophy" is a sign of strength, he writes. It is evidence that "justices recognize no obligation to reflect the views of the president who appointed them," an indication of "a long tradition at the Court of independent decision making."[16]

Enhancing the value of these and other selections is their accessibility So often essays of similar merit from across the years remain scattered among dozens of dusty bound periodicals on library shelves or wound on reels of microfilm. And in many libraries they are unavailable in any medium. Students of the Court can be pleased that so many contributions have been given new life in a new form.

The Court At Work

Because the Supreme Court is a collegial body understanding interactions among the Justices and between the Court and the larger political system is therefore essential to understanding the institution. This is the objective of David M. O'Brien in Storm Center.[17] Exploring judicial tempest and calm alike, O'Brien has written one of the most useful and most thoroughly researched volumes on the Court to appear in a long time. For example, he examined the private papers of 55 justices (including the papers of Justice Brennan and the late Justice Douglas), over half the number of all who have ever served on the High Court. Moreover, he had correspondence or discussions with former Chief Justice Burger as well as Chief Justice Rehnquist and Justices Brennan, O'Connor, Powell, Stevens, Blackmun, Marshall, and White, as well as the late Justice Stewart.

Because the Supreme Court's role in American government is at once both anti-democratic and countermajoritarian, O'Brien agrees with Chief Justice Edward White that its power rests "solely upon the approval of a free people."[18] The operation of the Court accordingly becomes a topic worthy of study beyond reasons of scholastic curiosity How the Court decides cases – the institutional dynamics that are at work – may well affect public attitudes toward the Court and therefore the way its decisions are received.

Storm Center flashes a caution light on how the Court performs its tasks. Looking at the Burger Court, O'Brien believes that it became "increasingly bureaucratic in response to growing caseloads." The result has been, O'Brien finds, a Court now functioning "more like a legislative body" with a decision typically being more like an event than a process. The danger is that such trends "in turn lead to less certainty stability and predictability in the law."[19]

By "bureaucratization" O'Brien presumably means the addition of staff at the Court, including clerks for individual Justices, hired for specific duties because of their expertise, who operate in a hierarchy of authority. More work is therefore done by persons other than the Justices themselves, casting a shadow over Justice Brandeis' observation that "the reason the public thinks so much of the Justices of the Supreme Court is that they are almost the only people in Washington who do their own work."[20] Evidence for a shift toward legislative-like behavior is a decrease in collegiality and socializing among the Justices necessitated by an increased caseload and a marked increase in the number of highly politicized cases the Court now chooses to hear.

The press of time in turn leads to the filing of more dissents and concurrences, task made easier with the advent of word processing. Differences among the Justices become fixed rather than compromised. In the years of the Burger Court at least, O'Brien found a reinforcing of "ideological and personal differences."[21] By contrast, until the end of Chief Justice Hughes' time on the Court, the difference between the number of opinions for the Court (majority opinions) and the total number of opinions (including majority and separate opinions) was very small. During Chief Justice Warren's tenure, however, the latter figure became more than twice the former figure, meaning that individual dissenting and concurring opinions now substantially outnumber majority opinions. Opinions are also longer on average than they were fifty years ago, a significant development since there are now so many more opinions. The trend, which O'Brien terms "legislative," is for Justices to "stake out" rather than to compromise positions. One recalls the situation which generally prevailed prior to Chief Justice Marshall's appointment when Justices routinely filed seriatim opinions, making "the Court's" position more difficult to ascertain.

Partly responsible for this phenomenon are the kinds of cases the Court hears today: major questions of constitutional and statutory interpretation. "These are areas in which the justices are most likely to disagree and to be least inclined to compromise."[22] In Frankfurter's words, "constitutional law . . . is not at all a science, but applied politics. . . ."[23] Moreover, greater workloads leave less time for resolving differences. "There is less of this than one would like," admits Justice Powell, "primarily because of our heavy case load and the logistical difficulties of talking individually to eight other justices."[24] O'Brien believes that Justices may be "less willing to withdraw concurring or dissenting opinions because of the time their clerks devoted to them."[25] Finally the more individualized stands that are taken publicly the more Justices feel constrained from compromising their views in the future for fear of seeming inconsistent.

Storm Center also portrays the Court at work in the context of deciding particular cases. Especially instructive are the accounts of decision making in United States v. Nixon and Griswold v. Connecticut. Readers learn more than has been made available in any other source.[26] In the Connecticut birth control case, for example, an early draft of Justice Douglas' majority opinion rested on a First Amendment right of associational privacy as in NA.A.CP v. Alabama.[27] In a three-page memorandum to Douglas, Justice Brennan suggested instead the penumbral approach the published opinion of the Court contains. For Brennan, the change in grounding "would be most attractive to me because it would require less departure from the specific guarantees and because I think there is a better chance it will command a Court."[28]

Despite such examples of collegiality O'Brien believes that the recent trends he has highlighted are "likely to continue regardless of future appointments and attempts to curb the Court." Both the nature of the Court's docket and its internal procedures have combined to give "the Supreme Court a new, more difficult role to play in American political life."[29]

If O'Brien's book presents a "macro" view of the Court, Bernard Schwartz in Swanns Way[30] provides a "micro" look at one of the Burger Court's most far-reaching decisions: Swann v Charlotte-Mecklenburg Board of Education.[31] This was the first decision by the Supreme Court explicitly approving busing as a remedy for racial segregation in urban areas. While its focus was southern, it was nonetheless a precursor of decisions affecting other parts of the nation. Throughout his account, Schwartz offers ample corroboration of Justice Clark's observation that "differences of opinion must be expected on legal questions as on other subjects. . . . The history of progress is filled with many pages of disagreement. Why therefore, . . . expect 'the most influential men on the bench . . . trained in different philosophy and matured in a different climate' to have the same thoughts and views? They don't and they won't."[32]

Schwartz presents what is probably the most detailed account in the literature of the Supreme Court's decision-making process in a single case. To accomplish this task he drew from several manuscript collections, interviews with several present and former Justices, as well as customary primary and secondary sources. When Swanns Way appeared in 1986, five Justices (Brennan, White, Marshall, Blackmun, and Burger) who participated in Swann were still on the Court. (Chief Justice Burger retired at the end of the term in 1986, and Justices Powell and Rehnquist were not named to the Court until eight months after Swann came down. Justice Stevens did not join the Court until after Justice Douglas' retirement in 1975.) Questions regarding propriety naturally arise when memoranda prepared in confidence reach the public's eye while Justices concerned are still sitting. The same question applies in some places to O'Brien's Storm Center

Fifteen years, however, separate the decision in the case and publication of Schwartz's book. Less time than that had elapsed when Alpheus Mason's ground-breaking biography of Chief Justice Stone appeared in 1956, just eleven years after Stone's death.[33] Moreover, several members of the Stone Court were therefore still sitting when heretofore secret details of judicial deliberations saw the light of day And parts of the Stone biography had already been published as articles in law reviews. Controversial in some quarters at the time, intervening decades have accustomed almost all scholars and Court publicists to the acceptability of Mason's timing. Certainly when the cases have been long decided, the materials made available by the Justices themselves or their estates, and full documentation provided by the author, the public gains and the Court benefits from scholarly scrutiny.[34]

In Swann, each member of the Court recognized the case's importance. Not only was the question raised a significant one, but the Court had its own record of unanimity in school segregation cases to protect. Moreover, Warren Burger was in one of his first terms as Chief Justice, with the need to establish leadership on the bench. Finally all were aware of the much-publicized promises of the Nixon administration, growing out of the presidential campaign of 1968, to restrict the effects of Brown v. Board of Education[35] and its progeny.

Schwartz's account demonstrates the lengths to which a new chief justice might go to retain the appearance of leadership. According to Schwartz, Burger's Views on the case were not shared by a majority of the Justices. Burger was inclined to curtail the broad pro-busing order issued by United States District Judge McMillan in Charlotte. Justice Black as well believed the remedy went beyond what the Constitution required. This division resulted in a judicial tug-of-war. Through six drafts the majority pulled Burger toward their understanding of the case, while several members of the Court became sensitized to his objections. Justice Black went so far as to prepare a draft dissent which he circulated, perhaps as a bargaining ploy within days of the day Swann was actually announced. Schwartz explains how Black's position placed Burger in the middle between a more restrictive position and that of Justices like Brennan who wanted a resounding affirmation of the steps Judge McMillan had taken in the case. "Even Brennan could conclude," Schwartz says, "that the Burger draft joined by all was still preferable, with all its imperfections, to a further refining process that would produce the sharp Black dissent."[36] The opinion thus brought the Court together in a statement which perfectly reflected no Justice's views.

After the decision had been announced, Fifth Circuit Appeals Judge Griffin Bell confessed to a reporter, "It's almost as if there were two sets of views laid side by side."[37] Schwartz shows how this came about.

The blending of dissent and agreement which Schwartz observed in Swann is the subject of Sheldon Goldman and Charles Lamb's Judicial Conflict and Consensus,[38] a volume of twelve original essays on appellate court decision-making in the United States. Four concern the United States Supreme Court, four the United States Courts of Appeals, and four the state supreme courts. Focus is on judicial behavior not the reasoning put forth in the opinions themselves.

The editors' reasons for commissioning the studies include, first, increased "understanding of American collegial courts as legal policy-making institutions." Second, because appellate courts have substantial power in American government, "examination of conflict on courts may tell us about a variety of ways in which that power is or can be exercised." Third, students of the judicial process will learn more about the internal operations of courts. This suggests a fourth reason:

Sidney Ulmer's "Exploring the Dissent Patterns of the Chief Justices: John Marshall to Warren Burger,"[40] the second essay in the collection, is of particular interest. Noting the obvious incentives for a chief justice not to dissent, Ulmer first surveys the number of dissenting votes cast by individual chief justices as recorded in the Reports. Despite the essay's title, complete comparative data in the study include the Warren Court, but not the Burger Court since the research had been completed well before Chief Justice Burger's retirement. Since the dissent rates vary sharply by chief justice, Ulmer then attempts to account for the differences. Overall, the percentage of nonunanimous cases ranged from a low of 7 percent in the Marshall Court to a high of 75 percent in the Vinson Court. The rate for the Warren Court was 69 percent. Moreover, with only two exceptions, each succeeding court has shown a higher percentage of 5-4 cases (or their equivalent) than its predecessor. This fact, Ulmer notes, is consistent with the proposition that cases decided by the Supreme Court have become more complex and that disunity has increased as the Justices have gained a greater say in selecting cases for review.

Within the pool of all cases decided (from a low of 704 during the Stone years to a high of 4866 in the Fuller years), the chiefs dissent percentage ranged from a low of less than 1 (Marshall) to a high of 13 (Stone). Warren's and Vinson's were slightly over 12 percent each. Furthermore, the mean rate of dissent for chief justices prior to Stone was only 1.9 percent."[41] To account for these variations, Ulmer statistically tests several hypotheses. He discovers that the dissent rate among chief justices does not decrease for chiefs appointed in their later years or who serve for a longer time. It is not explained by prior experience as a legislator or a judge. Nor is it a function of congressional pressure on the Court. It does correlate in most instances if one considers both complexity of cases and turnover on the Court. Ulmer equates "complexity" with the dissent rate in cases in which the chief justice did not dissent. His "turnover index" results from combining the average number of appointing presidents per Court with the average number of appointments per Court.

Ulmer is careful not to draw firm conclusions on the basis of his study His dissent-predicting model for chief justices, he cautions, "is strictly exploratory" Indeed, when tested against Chief Justice Burger's dissents between 1969 and 1980, the model greatly under-predicted the former chiefs dissents. Perhaps "complexity of cases and turnover are having a greater impact on Burger than on earlier chiefs. The correct explanation, however, can be found only after additional research."[42] Even with respect to earlier chiefs, it is entirely possible that other considerations, not tested in the Ulmer study could account for the varying dissent rates observed.

Complexity of litigation in the Supreme Court underlies the analysis and recommendations in Redefining the Supreme Courts' Role by Samuel Estreicher and John Sexton.[43] Both authors are former clerks at the Court, Estreicher having served with Justice Powell in 1977 and Sexton with Chief Justice Burger in 1980. Partly because of this experience, both became concerned with the Court's workload, which many recognize as a problem. "There is a limit to human endurance," Justice Brennan has said, and the present number of cases argued and decided "taxes that endurance to its limits."[44]

Identifying a problem, however, is not the same as finding or agreeing on a solution. Proposals to "do something" about the expanding docket began in earnest early in Chief Justice Burger's tenure, with recommendations for a National Court of Appeals. This institution would review the Supreme Court docket, referring only the most important cases to the justices and disposing of the rest itself.[45] A commission headed by Nebraska Senator Roman L. Hruska recommended creation of an intermediate court to decide about 150 cases a year referred to it either by the Supreme Court or existing courts of appeals.[46] In the 1980s discussion turned to establishment of an Intercircuit Tribunal (ICT) that would occupy a position just below the Supreme Court, deciding only cases referred to it by that body especially those involving conflicts among the circuits.[47]

Estreicher and Sexton believe that adding a new court will only marginally increase the number of cases in which nationally binding law can be rendered. Instead, what is needed is a redefined role for the Supreme Court, one that does not call for the Court to be a "supreme court of errors." If the Court is seen as the strategic leader of the federal lawmaking process and not as a super court of appeals, the justices can meet the expectations placed upon them. Otherwise there will be "the inevitable, paralyzing frustration that must seize them if they take seriously their obligation to satisfy the current level of expectations" of universal availability.[48]

Accordingly the Court's "principal objectives in selecting cases for plenary consideration should be to establish clearly and definitively the contours of national legal doctrine once the issues have fully 'percolated' in the lower courts, to settle fundamental inter-branch and state-federal conflicts, and to encourage the state and federal appellate courts to engage in thoughtful decision-making, mindful of their own responsibility in the national lawmaking process."[49] Their findings, based on the 1982 term, show (1) that nearly one-fourth of the cases in which the Court granted review "had no legitimate claim on the Court's time and resources;" (2) that only 48 percent of the cases heard by the Court in 1982 had to be heard, meaning that "over half of the Court's docket was discretionary;" and (3) that "less than 1 percent of the cases denied review . . . , were cases that should have been heard by the Court. . .

Under a regimen of a newly defined role, the Court's docket would be divided into three categories: the priority docket, the discretionary docket, and the "improvident grant segment." The first would include "intolerable" intercourt conflicts, conflict with Supreme Court precedent where a lower court has "disregarded authoritative Supreme Court precedent squarely on point," resolution of "profound vertical federalism disputes," resolution of interbranch disputes, and resolution of interstate disputes. The discretionary docket would include cases where a state court sustained state action in the face of a federal constitutional or statutory challenge, other considerations of "vertical federalism" where federal courts have invalidated "nonstatutory state action on federal constitutional or statutory grounds (excluding federal habeas)," a "significant interference with federal executive responsibility" occasional interventions to correct "egregious error in order to ensure responsible actions by lower courts," resolution of national emergencies, and "vehicles for advances in the development of federal law" The third category of cases in which the Court would not intervene include most intercourt conflicts between only two courts, most issues of "nonconstitutional law" in the absence of one of the other criteria, issues of state law, and most situations where a state court has invalidated state action on federal grounds.[51]

These of course are not precise or clearly defined categories. The authors, however, have outlined an imaginative solution of the workload problem in terms of altered role, rather than more institutions or ever enlarging bureaucracies. Their recommendations even call for a change in the way the Court decides cases. Once the proper ones have been chosen, the Court would routinely call upon expert help, rather than relying mainly on the talents of counsel involved in the litigation.[52] The objective is a way in which the Justices can employ their scarce resources to perform essential functions.

The Work Of The Court

As the number of volumes surveyed in the article attests, the Supreme Court is a much-studied institution. Yet, in almost any book about the Court and its Justices, it is commonplace to find comparatively little on the pre-Marshall period. Even the first volume of the Holmes Devise History[53] reserves only three chapters to the Supreme Court. This relative inattention is due to the smaller number of cases, rapid turnover in personnel, and an unformed institutional identity After 1800 the Court faced a docket that had increased in both volume and significance, enjoyed more stable membership, and had a developing identity.

A major step toward rectifying much of this pre- versus post-1800 imbalance has occurred with publication in two parts of the first volume of The Documentary History of the Supreme Court of the United States, 1 789-1800, edited principally by Maeva Marcus and James R. Perry as assisted in this monumental project by seven associate, assistant, and illustrations editors. Sponsored by the Supreme Court Historical Society and the United States Supreme Court, the project will eventually encompass seven volumes, providing the first record of all cases heard by the Supreme Court between 1790 and 1800. In addition, the series will contain documents relating to the justices and the business of the Court, plus a compilation of official records, private papers, and other primary sources.

To date, searches by the editors have turned up over 18,000 documents. If volume one is an accurate predictor of what is to come, the series will more than fulfill the editors' promise that the set "will constitute a collection of materials that no individual scholar could hope to duplicate."[54] Indeed, the value of this collection is two fold: some materials are being published for the first time, and for the first time so many valuable sources are together in one place.

Volume one serves as an introduction and resource for the installments to come, but standing alone, it is of major value. There are, for example, 156 pages of documents and other materials relating to the appointment of each justice during the Court's first decade. This section is followed by nearly 400 pages of minutes, drafts of court proceedings, and docket headnotes. Notes on bar admissions conclude Part One.

Part Two consists of what the editors call "Commentaries." These are some 560 items, including letters, newspaper articles, diary and journal entries, and similar things relating to the appointment of justices and clerks and to the work of the Court. One finds, for example, ample material relating to John Rutledge's appointment as Chief Justice on July 1, 1795 and his subsequent rejection by the Senate on December 15. It seems safe to say that no other single publication contains so many items relating to this series of events.

The South Carolina State-Gazette account of Rutledge's speech in Charleston against the Jay Treaty during the month of his nomination appears in full, with the editors' notations on versions that were reprinted in at least twelve other newspapers up and down the coast before the middle of August as well as references to the speech published in several more.[55] The press may have been no less a force in American politics in Rutledge's day than in our own, but given the horseback and sailing-ship pace of the news, nationwide impact was almost always delayed.

Also present is Secretary of State Edmund Randolph's letter of July 25 to President Washington, containing Henry disaster’s report that Rutledge was "believed in Charleston to be deranged in his mind." This is followed by Randolph's plainly exasperated letter to Washington on July 29:

Rutledge's letter of resignation as Chief, written December 28, 1795, offered mainly his declining health as reason:

Rutledge was neither the first nor the last justice to reel from the onerous pressures occasioned by the travel which duty on circuit entailed. Since the Senate did not reject Rutledge until December 15, it seems entirely possible that Rutledge wrote this letter before he knew the outcome of the vote.

While the fruits of the first volume of The Documentary History were not available to David P. Curie, The Constitution in the Supreme Court: The First Hundred Years 1789-1888[58] stands as a substantial scholarly achievement. His book, however, is neither a history of the Court nor a straight legal analysis of all its decisions. Rather, Currie has attempted "to provide a critical history analyzing from a lawyer's standpoint the entire constitutional work of the Court's first hundred years."[59] The product is an evaluation of the Court in terms of the method of interpretation and the style of opinion writing displayed in each of the Court's decisions on constitutional issues. The author therefore omits discussion of the broader political and social contexts, but recognizes their importance obliquely through references in the footnotes.[60]

Currie's evaluation of judicial performance rests on the Constitution itself – a kind of constitutional objectivism. It is "a law binding the judges no less than the other officials whose actions the court undertakes to review Accordingly "judges have no more right to invent limitations not found in the Constitution than to disregard those put there by the Framers. In short, when a judge swears to uphold the Constitution, he promises obedience to a set of rules laid down by someone else."[61]

Not surprisingly Currie is usually more impressed by right reason than correct results. Thus, Harlan's dissent in the Civil Rights Cases[62] is regarded as "a substantial effort by any standard but one in which he seems to have let his heart run away with his head."[63] But Currie's judgments are tempered by understanding. "Especially from the smug advantage of a century or two of hindsight, it is easier to find fault than to write a good opinion. . . . Add that the opinions were often prepared by overburdened generalists in as little as a few days, in a time of inferior research tools and an immature tradition of judicial exposition, under the pressure of carrying colleagues with varying views; and it is perhaps inspiring that the Justices did so well."[64]

Because of the reference already made in this survey to the pre-Marshall years, Currie's findings for that decade are of some interest. In terms of published opinions, the Court's decisions were explained by only seven justices: Jay Cushing, Wilson, Blair, Iredell, Paterson, and Chase.[65] While there were only three constitutional cases resolved by full-scale opinions (Chisholm v Georgia, Hylton v United States, and Calder v Bull66) an additional twelve cases such as Ware v Hylton[67] had constitutional overtones.

These decisions, Currie concludes, established two lasting principles of construction: that "doubtful cases were to be resolved in favor of constitutionality" and that "statutes were to be construed if possible in a manner consistent with the Constitution."[68] Moreover, basic tools of constitutional interpretation in use before 1801 are still employed today. "The first Justices looked to the text of the governing constitutional provision, to inferences that could be drawn from other provisions to contemporary usage, to the intentions or purposes of the Framers, and to their own conceptions of sound policy."[69] Words seemed decisive in Chisholm, legal tradition in Caldet and policy in Hylton v United States. Then as now, opinions were flawed.

Perhaps the most surprising conclusion arising from Currie's analysis is "the enormous latitude the Constitution has left to judicial judgment." That was illustrated by the first decade's work. Already appearing were symptoms of free-wheeling judicial discretion. In Currie's view, Paterson and Iredell were the most impressive in their constitutional jurisprudence. Chase could be "thorough and persuasive" but wandered into issues not presented and seemed to be "no respecter of the written Constitution." While Wilson exhibited "erudition," his opinions also "seemed pretentious and disorganized." Jay was "long winded and off the point," while Blair and Cushing added little. "[N]ot a time of giant Justices or of great decisions," Curie nonetheless finds the Court under Jay Rutledge, and Ellsworth anything but uninteresting and insignificant. It set "a pattern of constitutional adjudication that was to endure."[71]

Just as Curie's volume purposefully overlooked the political and social contexts of litigation to focus on the reasoning the Justices employed, John A. Garraty's Quarrels That Have Shaped the Constitution[72] is a collection of studies that highlights the origins and development of constitutional cases in their political mileu. Originally published in 1962, the book has been reissued with five new essays, for a total now of twenty Don E. Fehrenbacher's on "The Dred Scott Case" replaces Bruce Cat-ton's. Appearing for the first time are articles on Near v Minnesota[73] ("The Case of the Miscreat Purveyor of Scandal" by Paul L. Murphy), Gideon v Wainwright[74] ("The Case of the Florida Drifter" by Anthony Lewis), Roe v Wade[75] ("The Abortion Case" by Rosalind Rosenberg), and West Coast Hotel Co. v Parrish[76] ("The Case of the Wenatchee Chambermaid" by William E. Leuchtenburg).

Garraty's title sums up the nature of American constitutional interpretation. It is a process of resolving "quarrels" which appear in the guise of cases, posing questions to be answered by judges. Constitutional principle is frequently the by-product of the pursuit of personal gain, as people seek to retain or recover something they believe (or hope) is rightfully theirs. Decisions that emerge from cases continue to shape the document by which all the nation lives.

So, as William E. Leuchtenburg explains, it was Elsie Parrish (the "Wenatchee Chambermaid") who initiated the litigation in which the Supreme Court in 1937 upheld, five votes to four, the Washington State minimum wage law The decision helped to launch a constitutional revolution in favor of expanded governmental regulation of the economy and helped to dampen another: President Franklin Roosevelt's "court-packing" plan.[77] The landmark decision of Adkins v Childrens' Hospital[78] was overruled, and with it the very recent holding in Morehead v New York ex rel. Tipaldo.[79]

In 1937, Court-watchers expected the Washington statute to fall. On June 1, 1936, Morehead had invalidated a New York minimum wage law, with Justices Sutherland, Butler, Van Devanter, McReynolds, and Roberts in the majority and with Justices Brandeis, Cardozo, and Stone and Chief Justice Hughes in dissent. Now in West Coast Hotel, announced on March 29, 1937, Roberts voted to sustain a nearly identical statute. Intervening was the unveiling on February 5 of President Roosevelt's statutory assault on the Court.

To defend Roberts against accusations that the President's plan drove him to the other side of the economic regulation question, Justice Frankfurter published in 1955 a memorandum which Roberts had given him a decade earlier outlining the sequence of events with respect to his votes in Morehead and West Coast Hotel.[80] In an explanation to which Leuchtenburg only briefly alludes,[81] Roberts recounted that he had favored granting review in Morehead only if the Justices were prepared to overrule Adkins. Since only three preferred that route (Hughes wanted only to distinguish that case from Adkins since the state of New York had not challenged the older case directly), he went along with the Sutherland wing of the Court in striking down law By contrast, West Coast Hotel squarely presented the opportunity of interring Adkins. "Thus, for the first time," Roberts maintained, "I was confronted with the necessity of facing the soundness of the Adkins case."[82] And at conference on December 19, Roberts voted to uphold the law The Court was evenly divided at that point because of Justice Stone's absence due to illness. When he returned in February, Stone also cast his vote to uphold the law Roberts' position had therefore been made clear well before announcement of the court-packing plan.[83]

While the Roberts memorandum explains the timing of his vote in the second case relative to the impending executive-judicial confrontation, the record is clear that Roberts could have made the difference on the fate of the New York statute in 1936. Perhaps Roberts was simply unsettled in his own thinking regarding the enormity of the constitutional issues which were at stake. He had voted with the majority in upholding the moratorium law in Home Building & Loan Association v Blaisdell, and had authored the ground-breaking majority opinion on minimum milk prices in Nebbia v New York. Yet, he spoke for the Court in United States v Butler, striking down the Agricultural Adjustment Act, and was part of the majority in the Carter Coal case invalidating the Bituminous Coal Conservation Act in 1936.[84]

Because of the outcome of this constitutional "quarrel," Elsie Parrish finally received her back pay of $216.19. Interviewed some thirty-five years later, writes Leuchtenburg, "she indicated . . . that she had accomplished something of historic significance – less for herself than for the thousands of women . . . who needed to know that, however belatedly they could summon the law to their side."[85]

While the Garraty volume enlivens a series of constitutional disputes spanning 170 years, A "Scottsboro" Case in Mississippi by Richard C. Cortner[86] is a detailed account of the events and personalities involved in a single case: Brown v Mississippi.[87] Brown was the Supreme Court's first decision invalidating a state conviction because of the use at trial of coerced confessions.

Indeed, as late as the 1920s, the Due Process Clause of the Fourteenth Amendment had not been held to impose significant restrictions on the states in the administration of their criminal laws. In terms of the Court's subsequent and gradual assumption of supervisory powers over state criminal justice, therefore, Brown is a companion to Powell v Alabama,[88] the Scottsboro case where the Court four years earlier had overturned convictions because of inadequate counsel.

The connection between Powell and Brown goes beyond their similar settings in adjacent states during the 1930s with poor black males on trial for their lives. Cortner shows how the Court in the latter case could have used the former decision as a basis for reversing the Mississippi convictions, because counsel at trial was inadequate.[89] That would have served the defendants just as well, but Brown would have had no measurable influence on constitutional law By focusing on the introduction of coerced confessions at trial, however, the Court expanded the scope of its review of state proceedings by attributing more procedural content to the Fourteenth Amendment. The results have been far-reaching. Interrogations and counsel have been troublesome issues for the justices in nearly every succeeding term.

Throughout Cortner provides an engaging account which captures the drama and humanity of the case, all the while he effectively shows how Brown became one of those "quarrels that shaped the Constitution." There was the murder of Raymond Stuart, a Kemper County, Mississippi, planter. Ed Brown, Henry Shields, and Yank Ellington were black sharecroppers who were arrested, indicted, tried for murder, and sentenced to be hanged, all within a week of Stuart's death. The District Attorney was John Stennis, later United States Senator. Key to the direction the case took after the trial were the efforts by local attorneys John A. Clark and Earl Leroy Brewer at substantial emotional and financial costs to themselves. Clark, a state senator, took the appeal to the Supreme Court of Mississippi, but then suffered a mental and physical collapse as well as the loss of a political future in his home state. Brewer was a former governor of Mississippi who conducted the Brown appeal to the United States Supreme Court. Without persistence by first Clark and then Brewer, with shoestring funding (total contributions were $1925) from local people and from groups such as the Commission on Interracial Cooperation and National Association for the Advancement of Colored People, the case of the Kemper County trio doubtless would have ended very differently.

Particularly influential in the appeal was the opinion by dissenting Justice William Anderson of the Mississippi Supreme Court which highlighted graphically the gruesome details of the "interrogation." The state court majority had upheld the convictions not because they approved of the methods the police employed but because counsel did not object to the use of the confessions until after they had been introduced at trial. To this Anderson responded: "The court had staring it in the face this incompetent testimony without which there could be no conviction. Must the lives.., be taken by law because their counsel failed to bring to the attention of the court this incompetent evidence? Are they without remedy?[90]

According to Chief Justice Hughes for a unanimous Supreme Court, they were not. "[T]he freedom of the State in establishing its policy is the freedom of constitutional government. . . . Because a State may dispense with a jury trial, it does not follow that it may substitute trial by ordeal. The rack and torture chamber may not be substituted for the witness stand." [91] As it happened, Brown came down on February 17, the same day the Court announced its decision in Ashwander v. TVA.[92] Understandably much press attention focused on the latter which upheld the validity of the Tennessee Valley Authority Commented one news magazine, "Even the deepest-eyed Liberal hardly gave a hoot that day about Brown et al. v State of Mississippi –three Negroes convicted of murder, whose statements, claimed to have been made when they were brutally whipped by deputy sheriffs, were admitted in evidence. . . ."[93]

Afterwards, District Attorney Stennis insisted on a retrial. Eventually a plea bargain was arranged whereby the Kemper County trio could please nolo contendere to manslaughter. With time already spent in jail, sentences ran seven and a half years for Brown, two and one-half for Shields, and six months for Ellington. The three were persuaded that a retrial might again result in a death sentence. "On 28 November 1936,... the hard-fought battle on their behalf came, rather unsatisfactorily to an end."[94]

Rather than mold a book around a single case, Francis Graham Lee in Wall of controversy has chosen a single issue: the church-state constitutional conflict.[95] Combining his own observations with a judicious selection of documents, Lee has compiled a valuable and concise resource for anyone interested in this continuing issue. The body of the book contains excerpts from the opinions of nine Justices, the earliest being Justice Frankfurter's dissent in the second flag-salute case[96] and Justice Black's majority opinion in Everson v Board of Education.[97] Most recent are the opinions of the Court in Mueller v Allen and Lynch v Donnelly written by Justice Rehnquist and Chief Justice Burger respectively.[98] Altogether, excerpted opinions come from thirteen cases.

Lee's chief concern is the Court's difficulty in resolving disputes under the First Amendment's religion clauses. He believes that an inability to remove conflicts from the political agenda – or worse still, an exacerbation of political conflict – is a sign of failure. Because the church-state controversy is largely a constitutional controversy the Court bears much of the responsibility he concludes, for the issue's continuing presence in the crucible of conflict. He notes by contrast that political dissent and obscenity while not entirely in remission as issues, are no longer the burning questions they were in the 1950s and 1960s.[99]

According to Lee, the core of the problem is the Court's failure to enunciate clear and convincing principles in the church-state arena which would end the debate. By lack of clarity he presumably means an absence of predictability With the Establishment Clause, for instance, it is difficult to know in advance whether particular forms of state aid to sectarian schools will be judged constitutionally acceptable. Yet the problem of clarity does not arise because all the justices keep changing their minds. The record demonstrates consistency among most members of the Court. For instance, into 1986 before Chief Justice Burger's retirement, three were reluctant to approve almost any form of aid, and three found most forms of aid to be constitutionally unobjectionable. It was the thinking of the middle group of Justices that effectively determined the outcome in individual cases, with two or more sometimes leaning one way and sometimes another. The result was a crazy-quilt pattern of decisions which the public must have considered muddled, or at best unclear.

The church-state conflict is also compounded by the evolving nature of the questions that arise. Interactions between government and religion are hardly fixed or static, a fact made immeasurably more complex once the Supreme Court applied the religion clauses to the states through the Fourteenth Amendment in the 1940s. One year finds questions of bus transportation and loans of textbooks on the docket, while another year finds tax deductions for school expenses and "shared time" arrangements up for decision. Moreover, church and state interact in literally hundreds of ways, since religious bodies are part of society and since citizens have religious as well as political interests. Consistent application of "clear" principles might not be entirely persuasive, therefore, given the conflicting views that exist throughout the population. At present, what consensus there is might best be described as "uncertain."[100]

Were he given five votes on the Court, Lee would cast them in favor of the "Livermore principle." New Hampshire's Judge Samuel Livermore was a member of the First Congress that proposed the First Amendment and the rest of the Bill of Rights to the states. His wording for the religion clauses stipulated that "Congress shall make no laws touching religion or to infringe the rights of Conscience." The House adopted Livermore's motion, and Lee believes it "to be as good a representation as Madison's of the feeling in that chamber. . . ."[101]

What would the Livermore principle require today? According to Lee, "religion and the state must be absolutely separate. . . . [G]overnment . . . should eschew any action that benefits religion or any laws that injure religion." Banned would be all aid to sectarian schools, books as well as buses. Also highly suspect would be any laws regulating religious institutions. Lee believes the best contemporary statement of the Livermore principle is found in Justice Brennan's "sadly neglected standard" from his concurring opinion in Abington School District v. Schempp:

The church-state controversy remains unsettled, of course. But Lee's volume is evidence that the task of resolving it – removing it from the political agenda – requires more than the Court can do alone. Of course the justices sit partly as teachers in American society a role that has been evident ever since early justices extolled the virtues of constitutional government as they traveled on circuit. But the Court can teach only so much and lead only so far. Also needed is sufficient consensus among opinion leaders across the land. That has yet to take shape. Constitutional decision making in the church-state arena is hampered by divided opinion among the people at large. It is probably enough to expect the Court to be a consensus contributor, and too much to ask that the Court be the consensus builder. As Attorney General Robert Jackson perceptively observed before his own appointment to the Court,

Few should therefore be amazed when the Court's responses on church-state questions reflect the conflicting answers voiced by the nation itself.

Judicial Review

Progress toward Lee's goal of clearer and more persuasive opinions interpreting the religion clauses involves exercise of the power of judicial review This authority of courts in the context of cases to refuse to apply laws judges find in conflict with the Constitution today distinguishes American courts from those of most nations in the world. And distinguishing American courts from every other system is the significance of questions those cases involve.

This development is the subject of The Rise of Modern Judicial Review by Christopher Wolfe.[104] "Modern" is the key word in the title, for Wolfe's survey of thinking about judicial review from the Federalist to the last years of the Burger Court forms the basis of his conclusion that the "very nature of judicial review has changed."[105] This transformation in turn creates a need to explore both the origins of judicial power and a consideration of the alternatives to judicial review as it is currently practiced. Wolfe is very much a believer in "truth in judging": Americans should be fully aware of what their judges do.

Wolfe divides the history of judicial review into three stages: the "traditional" era of constitutional interpretation (1789-1890), the "transitional" era (1890-1937), and the "modern" era (1937-present). The first

was characterized by its assumption that the Constitution was both intelligible – it had a real or true meaning that could be known if one read it properly – and substantive – it established principles that were definite and clear enough to be enforced as legal rules, rather than merely proclaiming vague generalities.[106]

The second era transformed judicial review into a device to defend property by reading certain natural rights into constitutional passages most susceptible to interpretation. The magnitude of this change was obscured at the time by several factors. First, expanded constitutional protection was justified as a plausible construction of the Commerce Clause and the Fifth and Fourteenth Amendments. Second, the founders themselves had placed high value on property making it easy to fasten a "laissez faire" economic theory onto the Constitution, especially in view of the increased scope of government regulation of business after the Civil War. Third, legal realism which arose around the turn of the twentieth century argued that all judging was inherently legislative. That is, deciding cases entailed judges writing values into law Taken together, American judges in the transition era could argue that they were doing nothing more than judges from an earlier day had done. Even opponents of the Court's new use of judicial review accepted the idea that the Constitution embodied protection for property rights, says Wolfe. They argued instead that the Constitution merely had to be adapted to new conditions. This attitude cut the words in the document loose from their foundations, resulting in an accordion-like text – one which could eventually take on almost any meaning.

Spanning the division between the transitional and modern eras, Robert H. Jackson described this process.

The modern era has reflected "the victory of a distinctly modern understanding of judicial power as fundamentally legislative in character."[108] As Jackson said, "This was the inevitable consequence of accumulating a body of judicial experience and opinion which the legal profession would regard as precedents."[109] Scholars transposed an understanding of the common law judge at work into the realm of constitutional interpretation, with "the nearly total victory within the legal profession of the view that judges – including Supreme Court justices exercising the power of judicial review – are inevitably legislators."[110] This applied as much to a Jerome Frank as it did to a Felix Frankfurter. With this understanding of the role of judges in the political system firmly implanted, resurgence of judicial activism after 1937 "seems to have been virtually inevitable." Driving this evolution in the third stage as in the second has been "dissatisfaction with the Constitution – either because its prescriptions are wrong, or more often, because they do not go far enough. . . ."[111]

So in evaluating the Warren Court's interpretation of the religion clauses, for example, Wolfe notes the same confusion Lee and others have found.

But recall that Lee's solution to the present confusion in interpretation of the religion clauses was also a recourse to "intent." Lee's understanding of that intent, however, would produce strong separationist decisions identical to those Wolfe believes depart from intent.

"Theories of judicial review" writes Wolfe, "either confine judges to exercising judgment, or they encourage them to exercise will." [113] The former was dominant in the "traditional" stage, the latter in the "modern." A return to judicial review in its earliest form involves more than a rejection of deeply ensconced ways of thinking. It raises a more fundamental question: "is the Constitution itself an adequate basis for modern government?"[114] Judicial review properly considered, believes Wolfe, exposes one's deepest thinking on the nation's needs. If the Constitution without judicial re-making does not do the things we want, then a judiciary on the modern model may be institutionally desirable. Yet Wolfe prefers that an explicit and knowing choice be made.

There may be too many with an interest in keeping the Constitution the way it has become for a reappraisal to occur that would satisfy Wolfe, even if the Court soon begins a fourth stage of judicial review But studies like his and the others surveyed here stimulate healthy debate about the Court's evolving place in American government and help to determine what that place will be. What was true in the time of Hugh Swinton Legare remains true today The history of the nation lies in the cases the Court decides. Values clash in the courtroom as they do in the electoral arena. Controversy surrounding judicial decisions fairly reflects the American people's strong attachment to, yet suspicion of, the judiciary's role in the democratic experiment.

Endnotes

Choper, Jesse H., ed. The Supreme Court and its Justices (Chicago: American Bar Association, 1987), pp. 269.

Cortner, Richard C., A "Scottsboro" Case in Mississippi: The Supreme Court and Brown v. Mississippi (Jackson: University Press of Mississippi, 1986), pp. xiv, 174.

Currie, David P., The Constitution in the Supreme Court: The First Hundred Years 1789-1888 (Chicago: University of Chicago Press, 1985), pp. xiii, 504.

Estreicher, Samuel, and John Sexton, Redefining the Supreme Court’s Role: A Theory of Managing the Federal Judicial Process (New Haven, Conn.: Yale University Press, 1986), pp. x, 201.

Garraty, John A., Quarrels That Have Shaped the Constitution, rev. ed. (New York: Harper & Row, 1987), pp. viii, 391.

Goldman, Sheldon, and Charles M. Lamb, eds. Judicial Conflict and Consensus: Behavioral Studies of American Appellate Courts (Lexington: University Press of Kentucky, 1986), pp. ix, 205.

Lee, Francis Graham, Wall of Controversy: Church-State Conflict in America–the Justices and Their Opinions (Malabar, Fla.: Krieger, 1986), pp. lxxii, 999.

Marcus, Maeva, and James R. Perry, eds., The Documentary History of the Supreme Court of the United States 1789-1800, vol. 1 (in 2 parts) (New York: Columbia University Press, 1985), pp. lxxii, 999.

O’Brien, David M. Storm Center: The Supreme Court in American Politics (New York: W. W. Norton, 1986), pp. 384.

Schwartz, Bernard, Swann’s Way: The School Busing Case and the Supreme Court (New York: Oxford University Press, 1986), pp. 245.

Steamer, Robert J., Chief Justice: Leadership and the Supreme Court (Columbia: University of South Carolina Press, 1986), pp. xiv, 321.

Wolfe, Christopher, The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law(New York: Basic Books, 1986), pp. x, 392.

1. 17 U.S. (4 Wheaton) 316 (1819).
2. G. Gunther, John Marshall’s Defense of McCulloch v. Maryland (1969).
3. 2 H. Legaré, Writings 130 (1845).
4. Supra, n. 1.
5. Id., 293.
6. Id., xi.
7. Id., 301.
8. Id., 296.
9. Id., 298.
10. Supra n. 1.
11. Id., 213.
12. Id., 207.
13. B. Woodward and S. Armstrong, The Brethren (New York: Simon and Schuster, 1979. The book purported to reveal the inside scoop on the Court from 1969 to 1976. Controversial in its sources of information and absence of documentation, the volume was otherwise unremarkable in its findings.
14. Choper, supra n. 1, 209.
15. Id., 210-213.
16. Supra n. 1.
17. Id., 15.
18. Id., 14.
19. Quoted in C. Wyzanski, Jr., Whereas — A Judge’s Premises 61 (1944).
20. O’Brien, supra n. 1, 231.
21. Id. 274.
22. "The Zeitgeist and the Judiciary," in A. MacLeish and E. Prichard, Jr., eds. Law and Politics, p. 6 (1939).
23. Choper, supra n. 1, 210.
24. O’ Brien, supra n. 1, 275.
25. 418 U.S. 683 (1974); 381 U.S. 479 (1965). From O’Brien’s perspective, Nixon and Griswold are presumably atypical in that both reflect considerable cooperation as well as give-and-take in the course of writing opinions, although Griswold is typical in that several separate opinions accompanied the opinion of the Court.
26. 357 U.S. 449 (1958).
27. O’Brien, supra n. 1, 257, quoting from the Brennan Papers in the Library of Congress.
28. Id., 42-43.
29. Supra n. 1.
30. 402 U.S. 1 (1971).
31. Tom C. Clark, "Internal Operation of the United States Supreme Court," 43 American Judicature Society Journal 51 (1959). Justice Clark was quoting in part E. Smyth Gambrell.
32. A. Mason, Harlan Fiske Stone: Pillar of the Law (1956).