The Judicial Bookshelf

D. GRIER STEPHENSON, JR.[1]

It was one of George Washington's first concerns as President: the individuals who would sit on the Supreme Court of the United States. "Impressed with a conviction that the true administration of Justice is the firmest pillar of good government," he wrote his future Attorney General Edmund Randolph in 1789, "I have considered the first arrangement of the Judicial department as essential to the happiness of our country and the stability of its political system." Under the Articles of Confederation, which the recently ratified Constitution replaced, there had been no national Judiciary. While the Court's precise role in the new political system was unclear, Washington realized the impact the Court might have in the young Republic. This required, he told Randolph, "the selection of the fittest characters to expound the laws and dispense Justice....

The first session of the newly constituted Supreme Court was scheduled for February 1, 1790, in the Royal Exchange building at the foot of Broad Street in New York City. The occasion was inauspicious. Only three of the six Justices were present, so the Court adjourned until the 2nd. By then a fourth Justice had arrived. A newspaper account of the day reported, "As no business appeared to require immediate notice, the Court was adjourned."

Two centuries ago, the Justices had not carved out their role in American government. Months would pass before the Supreme Court even decided its first cases. Yet the time was near when observers could say with near accuracy, "[E]very decision becomes a page of history."[2] Though Alexander Hamilton labeled the Court the "least dangerous" branch, regarding it as the weakest of the three, the Justices have had an impact on American life that can scarcely be exaggerated. "In not one serious study of American political life," proclaimed President Theodore Roosevelt in 1902, "will it be possible to omit the immense part played by the Supreme Court in the creation, not merely the modification, of the great policies, through and by means of which the country has moved on to her present position...."[3] Roosevelt's estimate remains equally true today. It describes a reality made possible by, and bound up with, democratic politics and a written Constitution--a reality continually reflected by the Court's place at the center of scholarly inquiry.

The Justices

The Supreme Court is no stranger to constitutional conflict. Often the Justices have found themselves at the center of the storm. Publication of Charles Fairman's Five Justices and the Electoral Commission of 1877, as a supplement to Volume VII of the Holmes Devise History of the Supreme Court of the -United States, is a reminder that the Court once had a role in resolution of the nation's most serious electoral crisis: the disputed presidential election of 1876.[4] Electoral disputes are always serious if their resolution affects the outcome. Democracies turn to elections not just as a convenient method of choosing leaders but as a way of legitimizing them. A "stolen" election thus undercuts the majoritarian premise, which supports the government. In presidential politics, a disputed election threatens the national political community. This was especially the case in 1876 and 1877, barely a decade after Appomattox.

Because of conflicting returns in November 1876 from Florida, Louisiana, and South Carolina (and one electoral vote from Oregon), it was unclear whether Democratic candidate Samuel J. Tilden of New York or Republican nominee Rutherford B. Hayes of Ohio had a majority of the electoral votes. Tilden had a majority of 250,000 in the 8,323,000 popular votes cast. Hayes had 165 undisputed electoral votes, Tilden 184 (one less than the number needed to win). In early 1877 Congress created an Electoral Commission composed of five Representatives, five Senators, and five Associate Justices of the Supreme Court. Controlled by the Republicans, the Senate chose three Republicans and two Democrats. Controlled by the Democrats, the House chose three Democrats and two Republicans. Four Justices (two known to be members of each party) selected the fifth. Their choice was Joseph P. Bradley, also a Republican. Eventually the commission voted eight to seven by party lines to resolve the dispute in Hayes' favor, giving him 185 electoral votes to Tilden's 184.

Ultimately, the commission's decision rested on whether Congress should accept a state's certification of election returns as binding, or go behind the certification to examine the merits of individual disputes. Article I, Section S clearly gives each house the authority to "be the Judge of the Elections, Returns and Qualifications of its own Members. . . ." Did the same oversight extend by implication to presidential electors? By adopting the former position, the commission effectively gave the election to Hayes. Fairman accepts this as a constitutionally correct position, considers Bradley's written opinion as "the most important document in the history of the Electoral Commission,"[5] and demonstrates that the dominant view was the one largely favored by both Democrats and Republicans before the election of 1876 when Congress debated the question of disputed contests.

The focus of Five Justices is on the role of the five members from the Supreme Court, especially Justice Bradley.[6] Fairman's interest in the Commission rests partly on the widespread impression in historical literature that its members, including the Justices, were motivated chiefly by partisan advantage. Of special concern to Fairman is an account which singled out Bradley as -one who initially was inclined to take a position favorable to Tilden but who, at the last-minute urging of others, and at the offer of a possible bribe, was won over to a position favorable to Hayes. This was the Secret History of Democratic national chairman Abram S. Hewitt, written first in 1878, revised in 1895, and left to be published only when all the participants in the dispute had passed away. Allan Nevins' biography of Hewitt appeared in 1935.[7] According to Fair-man, Hewitt's account "was presented at length as true and reliable. So confident was he [Nevinsi in the story that he failed to test it." Rather he went on to supply elaboration. After painstaking study, I became convinced that Hewitt's account was not reliable, and that Nevins in his infatuation with his subject had led historians astray."[8]Aside from exploring an important constitutional issue, Fairman's objective in this volume lies in restoring "the good name of Justice Bradley"[9] in this extracuriam episode from Supreme Court history.

If Five Justices elucidates Bradley's role in a critical event of the nineteenth century, The Douglas Letters provides insight into the twentieth-century career of a law teacher, New Deal figure, explorer, author, and Justice whose work on the Court extended from 1939 to 1975. With the assistance of Philip E. Urofsky, Melvin I. Urofsky has collected and aunotated several hundred letters that William 0. Douglas wrote to various individuals between 1928, when he was on the faculty of the Columbia Law School, and 1979, some six months before his death in 1980. The earliest letters include one to Nicholas Murray Butler (April 5, 1928) and one to Thomas Reed Powell (November 18, 1930). Given Douglas' wide-ranging activities and accomplishments, the book is noteworthy. As Urofsky explains,

The appearance of a collection of letters by a Justice as prominent as Douglas is thus significant for two reasons. First, even if the letters and other papers are open to the public at a library, the number of persons realistically who will ever see the letters is very small. This is to be expected because of the effort and expense involved in research. In such situations, the general public benefits from the labors of publicists who do see them. By contrast, publication in book form makes the papers available to thousands of interested students of the Court and other readers as well. Second, the letters of a Justice offer glimpses of government rarely matched by the papers of other leading personalities in Washington. Letters of a recent President, Representative, or Senator will probably not explain as much about the executive and legislative branches if only because so much of what occurs is the work of staff. Justices of the Supreme Court are probably the only remaining high officials for whom their own papers are valuable, if not complete, indicators of their roles within the decision-making process.

The Douglas Papers at the Library of Congress contain hundreds of thousands of items. The papers were closed to the public at the time Urofsky had access to them, presumably to give the staff in the Manuscript Division time to complete the cataloging. "Those [letters] selected for this volume," Urofsky notes, "have been edited. . . in a manner that allows Douglas to speak for himself. . . ." The book thus represents a tiny sample of what the entire collection contains. In addition to the possibility of distortion of Douglas' record such selection necessarily injects, one wonders whether Douglas "cleansed the files" of embarrassing materials before his death. Urofsky responds:

Urofsky has made the volume more useful by inclusion of a short but instructive introductory essay on Douglas and by a topical organization of the letters: Part I, Yale and the SEC; Part II, Mr. Justice Douglas; Part III, A Very Public Justice: Part IV, Husband, Father, and Friend; Part V, Final Things. Each part in turn is divided into two or more chapters. For example, Part I contains chapters entitled "Professor Douglas" and "Commissioner Douglas." Part III contains chapters entitled "Polities," "Environmentalist," "Travel and Foreign Affairs," and "Writer and Speaker." Part II contains correspondence with twenty of the twenty-nine Justices with whom Douglas sat during his years on the Court: Stone, Black, Reed, Jackson, Vinson, Minton, Clark, Warren, Brennan, Whittaker, Harlan, Stewart, White, Goldberg, Fortas, Marshall, Burger, Blackmun, Powell, and Rehuquist. Part V contains twenty-three pages of letters relating to the impeachment threat against Douglas in 1970, concluding with one to Congressman Emanuel Celler, Chairman of the House Judiciary Committee, dated December 1, 1971. "Dear Manny,… This is really not a note of thanks, as you only did your constitutional duty.... Your career has brightened the conscience of America and made everyone within the radius of your actions and your words more mindful of the democratic ideal under our republican form of government."[13]

The letters alert the reader to characteristics of both Douglas and the Court. Several letters written about the time of his appointment by President Roosevelt to the Court in 1939 express surprise. "It was wholly unexpected so far as I was concerned... ." Yet his biographer James Simon has made it clear that Douglas not only knew he was being considered for the seat held by Brandeis but worked for the appointment in his own behalf. On Chief Justice Warren, Douglas' memoirs exhibit high praise, yet letters to Justice Minton in 1961 show that Douglas' feelings were mixed: "...I never dreamed I'd be here when a Chief Justice degraded the Court like Earl Warren is doing. It's a nasty spectacle. Perhaps the old boy is off his rocker." Among significant cases, the letters reprinted in the book contain no mention of the flag-salute cases of 1940 and 1943. Students of constitutional interpretation have wondered why it took Douglas, as well as Black and Murphy, so long to "discover" their error in joining Frankfurter's well-nigh unanimous opinion in the first case. On the far-reaching decision in United States v. United States District Court, announced in the Reports with a vote of 8-0, Douglas wrote Justice Powell urging him to base his opinion on the Constitution, rather than lodging it on more narrow statutory grounds:

On the obscenity question, Douglas made clear ma "Memorandum to the Conference" in 1965 that he would not vote to accept cases involving censorship.

Throughout, The Douglas Letters adds to what scholars know about Douglas and the Court during his years as a Justice. Representing weeks of reading and toil among the late Justice's papers, the Urofsky volume is a major contribution to the literature.

William H. Rehnquist was the last Justice confirmed by the Senate while Douglas was on the Court. His arrival predated Douglas' departure by four years. Already Rehnquist is the subject of a judicial biography, Donald Boles' Mr. Justice Rehnquist, Judicial Activist: The Early Years. Work on the volume was completed shortly before President Reagan nominated Associate Justice Rehnquist to the Chief Justiceship, to replace the retiring Warren Burger. As Chief, Rehuquist became only the third in Supreme Court history (after Edward D. White and Harlan F. Stone) to advance to the center chair while a member of the Court. As a nominee on two occasions, Rehnquist has been among the most controversial in modern times. There were 26 negative votes in the Senate in 1971 against his confirmation, 33 against his promotion to Chief in 1986.

Boles lays bare most of the objections voiced against Rehnquist[21] and promises that his book is the first of a "several-volume study" of Rehnquist. Chronologically, it takes the reader mainly through the Senate hearings on Rehnquist's nomination to fill Justice Harlan's seat in 1971, although there are references to cases the Court decided after Rehnquist joined the bench as well as some mention of the controversy surrounding his appointment as Chief Justice in 1986.

Boles' book is not a biography in the usual sense. This volume does not contain an in-depth study of Rehnquist's pre-Court personal and professional life. Rather it is a study of the intellectual origins and development of Rehnquist's views on constitutionally significant issues. In the author's words, the book "takes Mr. Rehnquist at his word [in an interview in 1985] when he says that he believes his views on the role of government and the courts in relation to individual rights have changed very little since he moved to the bench. If this is true, it would seem especially important to look carefully at the early instances and manner in which he revealed his intellectual outlook on these subjects." Boles probes the past accordingly. "[His opinions of today," writes Boles, "should come as no surprise to anyone who paid attention to his earlier writings or public comments." What the reader finds is hardly a flattering portrayal, but one that includes citations to some scholarly evaluations and to a wealth of journalistic commentary about one who may well be one of the most influential American jurists of the last quarter of this century. As Profesor Howard has observed, "Justice Rehnquist will be recognized as a catalyst to many of that tribunal's great struggles."[23]

Boles states that a study of Rehnquist's past provides support for David Shapiro's analysis of the Justice's first five years on the Court. He found that Rehnquist resolved (1) conflicts between the government and the individual in favor of the former, (2) conflicts between state and national authority in favor of the former, and (3) conflicts over the extent of federal jurisdiction against the national government.[24] Neither is Boles surprised by Owen Fiss and Charles Krauthammer's contention that Rehnquist is not a judicial conservative but a judicial activist. "He is no conservative," they write, "as that term is ordinarily understood in the law, but rather a revisionist of a particular ideological bent.[25] Later volumes in Boles' study of Rehnquist will presumably test the staying power of the values the author finds dominant in his life before 1971. Rehnquist's elevation to the center chair in 1986 may mean that leadership becomes a significant variable. While providing a perspective on Rehnquist, Boles has, perhaps unknowingly, added perspective to the uncertainties Presidents confront when making nominations to the High Court. Throughout American history, one notes presidential frustration over 'judicial surprises": Justices whose votes do not match presidential expectations. However, persons who have developed a firm ideological position prior to nomination may occasion fewer "surprises." For Presidents keenly interested in the ideology of a nominee, someone who has long held and expressed clear views may prove especially attractive. The coming years may see more, not fewer, Justices of the temperament, whether of the right or left, Boles ascribes to Rehnquist.

The Court At Work

Donald Boles' characterization of Rehnquist is not readily apparent in Chief Justice Rehnquist's own book, The Supreme Court: How It Was, How ills. Rehnquist's announced purpose in writing this volume--which appeared after sixteen years of service on the Court, including one term as Chief Justice--is "to convey to the interested, informed layman, as well as to lawyers who do not specialize in constitutional law, a better understanding of the role of the Supreme Court in American government."[26]

That goal is important, to be sure, but is one shared with many others who have written about the Court. His statement understates the uniqueness of the book. No other person has written a book about the Court while holding the nation's highest judicial office. John Marshall's biography of George Washington explained federalist principles of government.[27]William Howard Taft authored a book about the presidency and published a volume of essays on government before President Harding named him to the Court.[28] As Chief, Taft expounded in at least one book on the nature of American constitutional government.[29] The lectures of Charles Evans Hughes on the Court[30] remain a classic over 60 years after publication, yet the book appeared 12 years after his resignation as Associate Justice and two years before his appointment as Chief. Chief Justice Stone left an abundance of papers to scholars of the Court,[31] but no book. Chief Justice Warren's short volume on democratic government appeared after his retirement, as did his memoirs.[32] Chief Justice Burger made a large number of addresses (many of them published as articles), but authored no book on the Court in general. The Supreme Court; How It Was, How It Is, is thus of instant importance because of its author.

Rather than using the book as a vehicle for his own constitutional views, Rehnquist devotes most of the volume to a description of the institution. No one reads very far into the book without a sense of the affection Rehnquist has for the highest court in the land. While avoiding discussion of the Court's substantive doctrines since 1953, Rehnquist begins with his own introduction to the Court, as a clerk to Justice Robert H. Jackson in 1952. The second part of the study is historical--broad-brush comments on the institutional development of the Court and its decisions in principal cases from John Marshall's era to the mid-twentieth century. The author follows "a trail on the borderland between American history. and constitutional law, and [gives] some idea of how the Court has responded to important developments in the history of our country."[33] The concluding part is a description of the Court's current decision-making procedures.

Much of the first part focuses on a landmark case during Rehnquist's clerkship with Justice Jackson: the Steel Seizure Case.[34] While the case has been exhaustively analyzed in the literature,[35] Rehnquist adds a new perspective, important because he was there. There is a report of Justice Jackson's comment to his clerks following the conference: "Boys, the President got licked."[36]There is Rehnquist's observation "that this is one of those celebrated constitutional cases where what might be called the tide of public opinion suddenly began to run against the government, . . . and . . . had a considerable influence on the Court." Reflecting on his own experience as a Justice, the author admits, "I was recently asked at a meeting… whether the Justices were able to isolate themselves from the tides of public opinion. My answer was that we are not able to do so, and it would probably be unwise to try." [37] The Chief Justice was not asked how this admission accords with the doctrine of original intent, nor did he volunteer to elaborate. He does, however, give some attention to the ideological motivations behind Presidents' nominations to the Court: "[P]residents who have been sensible of the broad power they have possessed, and have been willing to exercise those powers, have all but invariably tried to have some influence on the philosophy of the Court as a result of their appointments to that body."[38] But he also notes "that the Supreme Court is an institution far more dominated by centrifugal forces, pushing toward individuality and independence, than it is by centripetal forces pulling for hierarchical ordering and institutional unity. The well-known checks and balances. . . have supplied the necessary centrifugal forces to make the Supreme Court independent of Congress and the president."[39] New Justices, he says, are unlike new members of Congress. The former typically arrive one at a time; the latter arrive as a class, perhaps as many as 70 to 80 in the House. Without cohorts, the former takes his or her place with eight colleagues: the latter often form a bloc and cooperate with each other from the start.

The Supreme Court offers other insights on the Court's role as well as into Rehnquist's thinking about the institution he leads: "[T]here is no reason to doubt that [the Court] will continue in the everlasting search of civilized society for the proper balance between liberty and authority, between the state and the individual."[40] The Court's role "is no more to exclusively uphold the claims of the individual than it is to exclusively uphold the claims of the government. . . . And if it finds the scales evenly balanced, the longstanding 'presumption of constitutionality' . . . means that the person who seeks to have the law held unconstitutional has failed to carry his burden of proof on the question."[41]

On the role of law clerks: "[T]he law clerk is not simply turned loose on an important legal question to draft an opinion embodying the reasoning and the result favored by the law clerk."[42] On the nature of the judicial conference: "I feel quite strongly a preference for the Hughes style over the Stone style insofar as interruptions of conference discussions are concerned... . But the Chief Justice is not like the Speaker of the House of Representatives; it would be unheard of to declare anyone out of order, and the Chief Justice is pretty much limited to leading by example."[43] On granting certiorari, while recognizing that a decision to grant review is "rather subjective" and "made up in part of intuition and in part of legal judgment," he states: "One factor that plays a large part with every member of the Court is whether the case. . . has been decided differently from a very similar case coming from another lower court: If it has, its chances for being reviewed are much greater than if it hasn’t."[44]

As Rehnquist and others have long acknowledged, selection of Supreme Court Justices is one of a President's most important functions. This is not only because of the issues the Court confronts but because the average tenure of Justices is much longer than the average tenure of Presidents. The total number of Justices since 1789(105) is only slightly greater than the present number of United States Senators. Presidential choices in staffing the Supreme Court and the lower federal courts thus tend to extend a President's influence on the nation long after he has left office.

Neil D. McFeeley's Appointment of Judges[45] undertakes study of federal judicial selection in the presidency of Lyndon Johnson (1963-1969). The statistics illustrate the importance of the subject: Johnson named 125 District Court Judges, 41 Appeals Court Judges, two Supreme Court Justices (Marshall and Fortas), and 13 other Judges. Seventeen years after the end of the Johnson presidency, one of the Supreme Court Justices, 35 of Appeals Court Judges, and 87 of the District Court Judges remained on the bench in active or senior status.

McFeeley's volume is the sixth in a series of studies designed to comprise an administrative historyoftheJohnson presidency. "How President Johnson managed the executive branch to achieve the objectives of law and presidential purpose is the broad question which jointly they strive to answer." McFeeley explores the management process by which information was filtered and transmitted to the President and through which the President's criteria for selection would prevail."[46] The management process is essential because no President, even given a preference to do so, can do all or most of the work involved in judicial selection. So the "sub-presidency" becomes crucial to the President's success in meeting his goals. The term denotes "all those who have served the President... in the exercise of his responsibilities." They include individuals "in departments or independent agencies who had separate official responsibilities but whose loyalties to the president led them to look at problems from a presidential perspective."[47]

While McFeeley used some secondary sources m his study, he relies mainly on the files of aides, officials, and agencies stored at the Lyndon B. Johnson Library in Austin, Texas. The files contain memoranda to Johnson from his principal advisers in the White House and senior officials in the Department of Justice. There are oral histories and staff memoranda on the politics of selection. Of course much goverment business increasingly is done on the telephone. Where no records are made of conversations, they obviously are not available to McFeeley. Moreover, some materials that might be embarrassing to individuals remain restricted, at Johnson's request, as are reports by the Federal Bureau of Investigation on potential nominees. McFeeley did not examine files of participants (such as Senators and lobbyists) which are not part of the holdings in the Johnson Library. McFeeley largely confirms the findings of J. Woodford Howard's study of appointments to the courts of appeals,[48] where four major factors were at work: "political participation, professional competence, personal ambition, plus an oft-mentioned pinch of luck.... Judgeships normally are rewards for political ......... To the politically active as well as to the party faithful go the prizes." Luck consists of "knowing the right people at the right time."[49] To these McFeeley adds "the -President's increasing aversion to criticism, particularly from within the administration, and his demand for personal loyalty. Another was the requirement for agreement with Vietnam policy from all appointees." Political clearance became a key part of the selection process "as Johnson's attitude toward dissent hardened."[50]

Johnson's interest in appointing black Judges, and in having others take an interest in his interest, is reflected in a memorandum Johnson dictated for Press Secretary George E. Reedy: "Find out how many Negro Judges I have named. Have a planted question--each time one is announced-- ask if this is a Negro judge? All of every kind--and tell the number--7 or 8--51 more than any other President."[51] Advocacy of civil rights was a key criterion. A memorandum written in June 1966 refers to the views of a particular nominee to a lower federal court: "How is he on civil rights? Ask Ramsey to thoroughly explore background--prior associations in cases, etc., and give me memo before I act. I want this on every Judge."[52]

As noted, Johnson named both Abe Fortas and Thurgood Marshall to the Supreme Court, and McFeeley devotes part of a chapter to their nominations. It should also be recalled that Johnson nominated Fortas to succeed Chief Justice Warren in 1968, a nomination Johnson withdrew on October 2 (at Fortas' request) after the Senate failed to approve it. (Johnson had nominated Judge Homer Thornberry of Texas to take Fortas' place as Associate Justice.)

One of the questions about Johnson's last year in the White House is why he did not submit another name to the Senate. His failure to do so guaranteed that the choice of the new Chief would fall to his successor, widely thought to be Richard Nixon at that point. Advisers put forth the names of Erwin Griswold and former Justices Tom Clark and Arthur Goldberg. One memorandum bluntly stated, "Even if the Senate shirks its responsibilities, you should not end your term in office leaving vacant the most important appointment a President can make." To avoid the problems with a recess appointment, Johnson was urged to make an appointment right away and, if necessary, to submit it again when the Senate reconvened in January 1969. Apparently persuasive, however, was a memorandum dated December 9, which evaluated probable opposition in the Senate Judiciary Committee and on the floor: "So if a nomination were submitted I think it unlikely that it could be confirmed. To reject Goldberg might prove slightly embarrassing for the Republicans but to be repudiated again by the Senate on a Chief Justice nomination would also be embarrassing to the President. I would recommend against the nomination of a Chief Justice either in a special session or in the 91st Congress."[53]

Finding himself in a similar situation in 1801, President John Adams, much to Thomas Jefferson's chagrin, followed an altogether different course. A few weeks before he left the White House, Adams named Secretary of State John Marshall Chief Justice of the United States. If Adams had taken President Johnson's route, Chief Justice Ellsworth's successor probably would have been Spencer Roane of Virginia, an ardent defender of states' rights. In that event, history during the crucial formative years would have been drastically altered, perhaps for the worse.

Considering Johnson's many judicial appointments, however, McFeeley condudes that the selection process worked well, even though Johnson's last year ended on a sour note with the failure to get the Senate to approve Warren's successor and the concomitant mooting of the Thornberry nomination. On balance the sub-presidency was highly effective. "Communication and control were the goals of the process and to a large extent those goals were met, as Johnson generally was able to accomplish his objectives in the area of judicial selection."[54] This was largely because of the kind of assistants and advisers the President had around him and because of his own involvement. "Perhaps the major difference between the Johnson process and others was the role of Johnson himself. Lyndon Johnson was not a bystander at the selection process, but rather a participant.... Johnson participated in selection at all levels of the federal judiciary and his participation was much more than a formality."[55] Johnson's interest even extended to reading the thank-you letters that appointees wrote.

The Work of the Court:

The Supreme Court in History

G. Edward White is author of one of the most recent installments in the Holmes Devise History of the Supreme Court of the United States: volumes III and IV bound together as one book entitled The Marshall Court and Cultural Change, 181S-35.[56] The series, as originally projected, is nearing completion. The volumes covering the nineteenth century are now in place; forthcoming are two volumes focusing on the Taft and Hughes Courts.

Professor White's task in analyzing the second part of the Marshall Court is formidable. As he notes, the time was one of the Court's "most famous but one of its least accessible periods." In contrast to other volumes in the Holmes Devise History, White's does not claim to be a "lawyer's history," but attempts to "locate the Marshall Court in the larger culture of which it was a part."[57]

White begins with the labels commonly attached to the Marshall Court: nationalist, Federalist, property-conscious, and Chief Justice-dominated. Each contains some truth. However, "the difficulty with the entrenched labels for the Marshall Court is not that they mischaracterize but that they oversimplify: they conceal complexities and in the process blunt rather than sharpen understanding." Instead, White examines the latter Marshall years "by considering the Court as an institution functioning in a culture composed of the entrenched belief structure of republicanism and the emerging oppositionist belief structure of liberalism."[58]

To gain access to the beliefs of the Justices who served on the Court during this period, White has made an effort "to reconstruct, as far as possible, internal evidence about the Marshall Court's deliberative processes... The working life of the Court, including "the manner in which cases came to it, the setting of its deliberations, its deliberative practices, ... can be seen as having an ideological character." White believes that the problem of judicial discretion--the degree of choice the Justices possessed--and the need to separate this discretion from the outward appearance of partisan political activity--was "foremost in the minds of Marshall and his contemporaries.[59]

The Court's cultural context in the years 1815-1835 consisted of three central features. First was the conception, widespread in the early nineteenth century, that America was a republican society.[60] This view stressed the uniqueness of the United States and the opportunity such uniqueness presented to its people to attain the status of a virtuous citizenry. The second pervasive cultural feature was a sense that republican virtues, synonymous with the Revolutionary period, were passing into history. Republicanism was an ideology of restraint, subordinating "individual self-interest to the good of society as a whole." By contrast, the liberalism of the late eighteenth and early nineteenth centuries was an ideology of permissiveness, encouraging free markets and discouraging governmental interference in the affairs of citizens. For the latter, property was a "source of economic freedom and productivity," not "a source of political and social stability."[61] Clashes over the role of corporations or the place of credit can, White believes, be seen as clashes between republicanism and emerging liberalism. The third central feature was "the absence of a historicist theory of cultural change." Change was not viewed as a given, but as part of a cyclical pattern of events. Accordingly, certain institutions could be placed "outside time" to resist the "inexorable process of decay."[62]

According to White, the idea "that the past could be preserved and the exceptionalism of America made permanent seemed particularly applicable to American Jurisprudence." But "the interpretation and declaration of legal principles by federal judges, so far from ensuring the permanence" of constitutional principles, tended to violate them. They owed their appointment to partisan selection; moreover, interpretation threatened both "discretion" (the opportunity to make partisan decisions) and "consolidation" (reading the Constitution to reduce state prerogatives). So the Marshall Court tended to regard discretion as "mere legal discretion" and characterized "consolidationist" decisions as merely applications of the language and spirit of the Constitution."[63]

The Marshall Court adopted a three-pronged response to the problem constitutional interpretation in a changing age presented. First, the Court "recast the language of the Constitution, so that extracted principles could be made applicable to an altered cultural environment." So, "contract" and "commerce" were cut loose from the bonds of the eighteenth century and "converted into permanent principles.. . . In each of the great constitutional cases that came before the Marshall Court a critical word or group of words in the Constitution's text was recast through this technique, converted into a principle, and made applicable to a situation not explicitly contemplated by the Framers." The second prong of the Marshall Court's response was "to recast doctrine in nonconstitutional cases as it recast textual language in constitutional cases." That is, "prior common law decisions were converted to authorities and at the same time Americanized." Recast doctrines appeared in the form of enduring principles. The third prong was institutional: the "creation of mechanisms to promote selective, collegial, and confidential decisionmaking, so that the discretionary features of judging would not be exposed to public scrutiny."

By emphasizing unanimity and continuity, the Court was able to hide its choices beneath the cloak of nondiscretion. Responding to the contradictions in the culture of the early nineteenth century, the Court defined its role as one of "preserving, perfecting, and modifying the exceptional American version of republicanism in the face of cultural change."[64]

This aspect of the Marshall Court may prove to be the most difficult to grasp, White believes. "It may be easier to fathom Judges riding in stagecoaches. . . than to imagine their seeing their declarations of legal rules and principles as anything other than creative lawmaking." Their ideology was "designed to ensure the permanence of an experimental form of social organization by forestalling change and asserting the universality of certain beliefs. The years of the Marshall Court may have been the first time...in which the possibility that the future might never replicate the past was truly grasped. But if that insight was grasped, it was not embraced." The Justices' task was to reaffirm first principles. The Court's "consciousness was affected--one might say imprisoned--by that perception: it was," White concludes, "a Court of its time."[65]

Just as the Supreme Court in Marshall's day confronted a largely uninterpreted constitutional text, the Court in the years following the Civil War faced the uninterpreted generalities of section one of the Fourteenth Amendment, sometimes called the "Second Constitution." For several decades there was considerable debate on and off the Court over whether this amendment was intended to apply the Bill of Rights to the states. Most scholars agree with Chief Justice Marshall's opinion in Barron v. Baltimore[66] that Congress and the ratifying state legislatures did not suppose that the first eight amendments applied to the states. After 1868, the question became whether the Fourteenth Amendment accomplished what Congress in 1791 had not.[67] In Adamson v. California, Justice Black, dissenting, insisted on a doctrine of total incorporation. Replying, Charles Fairman attempted to disprove Black's thesis.[68] Among the Justices, the issue had largely lain dormant since Duncan v. Louisiana.[69] By then the Court had brought, in piecemeal fashion, most of the provisions of the Bill of Rights to bear on the states. In evolutionary stages, the Court wrought revolutionary results.

Michael Kent Curtis' No State Sha1l Abridge[70] could not have appeared at a more opportune time. President Reagan's second attorney general, Edwin Meese, announced to the American Bar Association in 1985 that the process of "incorporating" the Bill of Rights had been based on error. Nothing can be done "to shore up the intellectually shaky foundation upon which the [incorporation] doctrine rests."[71]Meese reopened public debate over the Fourteenth Amendment. Curtis' book, virtually completed by the time Meese made his 1985 address, is in effect a response. Curtis believes that Black was correct. Curtis arrives at this position--a position rejected by most Justices and others who have considered the question--in light of the antislavery crusade that produced the Fourteenth Amendment. "It reflected Republican legal theories, theories that were often at variance with conventional constitutional doctrine. Indeed, when read in light of Republican constitutional theory, much that seems confusing in the congressional debates leading up to the Fourteenth Amendment becomes clear. No one will ever be able to reduce the debates to perfect harmony. But the hypothesis advanced here makes sense, rather than nonsense, of what leading Republicans had to say."[72] Removing slavery meant a return to the nation's original purposes as found in the Declaration of Independence and the preamble to the Constitution.

Contributing to the difficulties any constitutional historian faces when examining the Fourteenth Amendment is the fact that most of the amendment concerned northern dominance and penalties on southern resurgence as an outcome of the Civil War. Section one, the part that (along with the enforcement clause) has retained significance, contains only 67 of the amendment's 428 words. So Curtis notes, "the questions we ask today . . .were not the questions Republicans were typically most determined to talk about." That is, he is searching for "understanding of a question to which they [the Republicans in Congress] devoted comparatively little direct attention."[73]

While most of No State Shall Abridge focuses on the formation of the Fourteenth Amendment, Curtis devotes the final two chapters to an overview of the Fourteenth Amendment in the Supreme Court. An important issue in the twentieth century has been the extent to which the amendment protects rights not found in the Bill of Rights. Believing that the amendment was so limited led Justice Black to dissent in Griswold v. Connecticut,[74] where the Court relied on "penumbras" in the Bill of Rights to invalidate a state law banning the use of birth control devices. Curtis, while not exploring this question in detail, sides with the Griswold majority. Because constitutional protections such as the Fourth Amendment have their origin in English law, "much of the progress in the history of liberty resulted from a very libertarian reading. .. of the intent of the framers of the Magna Carta. Any attempt to freeze understanding of liberty at a certain period in history confronts the historical fact of evolution."[75]

Curtis admits that his research, especially on the larger issue of the applicability of the Bill of Rights, is not conclusive.

The irony of Curtis' book is that it rests on original intent. Original intent was the basis of Mr. Meeses' objection in 1985 to the modern judicial approach to the Fourteenth Amendment. Whether one chooses Curtis' (and Blacks) history or another, No State Shall Abridge clearly demonstrates that the doctrine of original intent cuts both ways.

Unlike White's comprehensive review of the later Marshall Court's important constitutional and nonconstitutional decisions or Curtis' survey of the origins of a constitutional doctrine, Charles A. Lofgren offers an analysis of a single case.[77] Like White's book, however, The Plessy Case draws on a wealth of cultural material and therefore reveals much about the political and legal life of America during the late nineteenth century. Above all, it adds a chapter to present understanding of what historian C. Vann Woodward has called "the strange career of Jim Crow."

It speaks volumes about Plessy v. Ferguson's place in American politics and constitutional law nearly a century after the case was decided that the author feels obliged at the outset to make clear his intentions in this scholarly exhumation. While acknowledging that Justice Harlan's dissent "was the morally correct response in a republic founded on the truth 'that all men are created equal,' " Lofgren explains that "simply condemning the decision promotes an understanding neither of it nor of America in the late nineteenth century." [78] Significantly, Lofgren shows that the national press in 1896 greeted the decision with apathy and that in many scholarly works it remained unnoticed or obscure for many years after 1896.[79] The omissions suggest for Lofgren not just widespread acquiescence of many white Americans in the Compromise of 1877, but that in its time Plessy was "not especially controversial." Yet, significance may rise from insignificance. "A decision which is largely commonplace may serve nicely as a kind of prism through which to refract and analyze some of the tenets of a period."[80]

The origins of Plessy are not widely known. First, the case was not only arranged but did not result in a conviction before the decision by the United States Supreme Court. Second, the case originally rested on commerce clause arguments, not mainly on equal protection grounds.

After Louisiana enacted the Separate Car Act in 1890, blacks in New Orleans organized the Citizens Committee to Test the Constitutionality of the Separate Car Law. For legal talent, they were successful in interesting lawyer-novelist Albion W. Tourgee of Maysville, New York, in their case. By arrangement with the Louisville and Nashville Railroad, a black passenger named Daniel Desdunes would board a train with an interstate ticket but would not sit, at the conductor's direction, in the car reserved for blacks. Lawyers for the railroad, which also opposed the statute, insisted that a passenger, not the company's conductor, swear out a complaint. This plan was derailed, however, when the state supreme court handed down a decision in an unrelated case, overturning the conviction of a conductor for admitting a black into the car reserved for whites. Judge John H. Ferguson used this decision to dismiss the case against Desdunes.

The Committee then turned to Homer A. Plessy, a thirty-four-year-old friend of Daniel Desdunes' father. Plessy bought an intrastate ticket on June 7, 1892, on the East Louisiana Railway for a ride between New Orleans and Covington. In what Lofgren concludes was prearranged, Plessy was arrested and was arraigned before Judge Ferguson in Criminal District Court. At this point, James C. Walker (Plessy's local attorney) changed the argument by dropping reference to the interstate commerce issue as well as to Plessy's race.

Because Louisiana procedure did not provide for a direct appeal for minor convictions of this sort, Walker petitioned the State Supreme Court to halt the trial proceedings before they began. On November22, Chief Justice Francis T. Nicholls (who as governor in 1890 had signed the separate car bill into law) ordered Judge Ferguson to show cause why the prohibition should not be made permanent. The following month, the full court found that there was no constitutional conflict between the separate car law and the Thirteenth and Fourteenth Amendments. In January, attorney Walker was in position to request a writ of error from the Supreme Court of the United States.

Tourgee's brief in the High Court adopted an affirmative rights position, based on both the Thirteenth and Fourteenth Amendments, that the Constitution forbade "legally mandated racial assortment."[81] But decisions before the mid-1890's made this argument difficult to maintain. Tourgee also attempted to show that the state law degraded blacks, as suggested in 1880 in Strauder v. West Virginia: that the Fourteenth Amendment conferred on blacks "the right to exemption from unfriendly legislation against them distinctively as colored; exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps toward reducing them to the condition of a subject race.[82] In other words, Tour-gee had to prove that the law was not a reasonable police regulation that promoted the welfare, health, and morals of the people. As Lofgren explains, however, "having opened the issue, neither he nor his colleagues examined, in order to discredit, the legal sources and purported empirical evidence that pointed to a contrary conclusion regarding the reasonableness of separation." And the position lodged in Justice Henry Billings Brown's opinion for the majority was that the separate car law was a reasonable exercise of the state's police power. "If one ignores Brown's convoluted, clouded, and underdeveloped presentation, it was all simple and routine."[83]

It was in January 1897 that Homer Plessy entered a plea of "guilty" for boarding the white car and paid a fine of $25.00. The entire litigation cost $2,762 of the $2,982 the Committee had raised to challenge the law. Contrary to the Committee's objectives, the Supreme Court had ratified classification based on race. The outcome, writes Lofgren, "came not from startling recent shifts in doctrine, nor from the Court's setting off boldly in a new direction in the case itself. Rather, it turned, almost inexorably, on incremental change. Acceptable law and passable social science--by the light of the day--together denied the self-evident truth of the Declaration of Independence... ." Yet the Committee and counsel were able to have their arguments "displayed on the record--indeed, memorialized in Justice Harlan's dissent--to instruct later generations." Plessy made a difference not for what it did but for what it came to symbolize, "negatively and positively, and for the sobering and nagging questions about citizenship in a scientific age that it posed–and poses--to anyone paying attention."[84]

Just as Plessy v. Ferguson is a landmark case in the constitutional history of racial discrimination, Abrams v. United States has long been required reading for anyone attempting to fathom the development of the constitutional law of free speech in the twentieth century. Richard Polenberg's Fighting Faiths[85] is a detailed study of the Abrams case and other cases raising free speech claims during and immediately after World War I. The title of the volume comes from Justice Holmes' dissent in Abrams: "But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas.. . ." The book is also about leading theoreticians of free speech such as Zechariah Chafee, Jr., and about radicalism, ethnicity, and bureaucracy. Polenberg relied on the usual judicial sources and secondary materials, but he also researched nearly 100 manuscript collections and obtained more than 600 pages of formerly classified documents under the Freedom of Information Act, from the Bureau of Prisons, the Bureau of Immigration, and the Office of Naval Intelligence.

In 1918, Congress enacted the Sedition Act (later repealed in 1921). Among other things, it made criminal the saying or doing of anything to obstruct the sale of United States bonds, the uttering or publishing of disloyal or abusive language intended to cast contempt on the form of government of the United States, the Constitution, the flag, the uniform of the Army or Navy, or urging resistance to the United States or promoting the cause of its enemies. In August 1918, Jacob Abrams and other Russian immigrant radicals scattered leaflets in New York City condemning intervention by American troops in the Russian revolution. Arrests under the Sedition Act followed. The trial at the United States Courthouse in New York in October was held before Judge Henry De Lamar Clayton of the Middle and Northern Districts of Alabama.

When the Supreme Court heard the Abrams case on appeal in 1919, the free speech provisions of the First Amendment were relatively undeveloped even though the First Amendment had been part of the Constitution since 1791. The Justices as a group had not been nearly so inclined to protect non-property rights during the years they defended property from what they considered undue regulation by the state and national governments. Professor Felix Frankfurter later tried to account for this apparent inconsistency: "That a majority of the Supreme Court which frequently disallowed restraint on economic powers should so consistently have sanctioned restraints of the mind is perhaps only a surface paradox. There is an underlying unity between fear of ample experimentation in economics and fear of the expression of ideas."[86]

Seven months earlier, the Court had decided Schenck v. United States, in which Justice Holmes formulated the "clear and present danger" standard for judging the constitutionality of restrictions on speech. As Polenberg notes, in its form in Schenck, the test "was not at all solicitous of the rights of dissenters." But between this case and Abrams, "Holmes' thinking would undergo a significant change, and the Abrams case would play a central role in that change."[87] After the Court upheld Eugene Debs' conviction under the Espionage Act in 1919,[88] Learned Hand wrote Holmes to argue for suppression only when one has incited listeners to violate the law. In both Schenck and Debs, no incitement had been established. Holmes replied, "I don't know what the matter is, or how we differ so far as your letter goes."[89] According to Gerald Gunther, the statement reveals "the primitiveness of Holmes' first amendment thinking at that time."[90]

Criticism of Holmes in the pages of the New Republic by Ernst Freund came next. Holmes composed (but did not mail) a letter to editor Herbert Croly defending the ruling in Debs, adding: "I hated to have to write the Debs case and still more those of the other poor devils before us the same day and the week before. I could not see the wisdom of pressing the charges, especially when the fighting was over and I think it quite possible that if I had been on the jury I should have been for acquittal..."[91] Zechariali Chafee's article "Freedom of Speech in War Time," published in the June issue of the Harvard Law Review ,then caught Holmes' attention. The thrust was that Holmes' principle only needed refinement, to limit suppression to incidents of direct incitement. Discussions with Harold Laski in the summer of 1919 led Holmes to reconsider his position in Schenck and Debs. By October, Polenberg believes Holmes "had begun to view the issue of free speech differently than he had in March." While he had not moved all the way to Hand's incitement test or to the position advocated by Chafee, he was "more sensitive to the value of free speech as a means of getting at the truth, to the importance of experimentation, and to the need to treat dissenters mercifully...."[92]

Harry Weinberger, Abrams' attorney, argued for an even more stringent test. In his brief, he quoted Thomas Jefferson: "It is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order." In other words, action could be punished, but speech itself must be "perfectly unrestrained."[93] The majority was unpersuaded. Polenberg observes that Justice-Clarke's opinion was "quite consistent with the position that Oliver Wendell Holmes had taken in Schenck Frohwerk, and Debs. Clarke's Abrams opinion, in November, was very much like one Holmes might have written eight months later."[94]

Holmes' dissent held in effect that speech was protected unless an immediate check was required to save the country. Polenberg relies on an account by Stanley Morrison (Holmes' clerk) as told to Dean Acheson, (Brandeis' clerk at the time) concerning a visit by some of the brethren (Justices Van Devanter, Pitney and another) to convince Holmes to change his mind. "They laid before him their request that in this case, which they thought affected the safety of the country, he should, like the old soldier he had once been, close ranks and forego individual predilections. Mrs. Holmes agreed…. The Justice regretted that he could not do as they wished. They did not press." Justice Brandeis was on Holmes' side. "I join you heartily & gratefully. This is fine--very," he commented on Holmes' dissent.[95]

It was in 1969 in Brandenburg v. Ohio[96] that the Supreme Court adopted a direct incitement test as a measure of constitutional restrictions on free speech. Abrams and his colleagues paid "a heavy price for voicing their inner convictions, a price none of them could have foreseen when they emigrated to America, embraced radicalism, or denounced United States intervention in Soviet Russia." Yet, Polenberg notes, their action "had far-reaching consequences" for First Amendment doctrine. The case "contributed...to a process of judicial reconsideration which eventually placed freedom of speech on a firmer constitutional basis."[97]

The Work of the Court:

The Contemporary Court

While the literature on the Supreme Court contains many excellent studies such as Polenberg's and Lofgren's on a single case, typically they concern older cases. There are at least two reasons why this is so. First, sometimes years must pass before the full significance of a case is apparent. The development of constitutional law is incremental. A case may achieve notoriety not simply because of what it decides but because of events that follow. Second, within limits, sources of information often increase as time passes. This is especially true with respect to private papers and other manuscript collections, as well as oral histories. It is noteworthy therefore that Barbara Hinkson Craig's Chadha[98] appears five years after the Supreme Court's decision in Immigration and Naturalization Service v. Chadha.[99]

Craig accomplishes two impressive tasks. She follows Chadha's case from the beginning, revealing a human drama worthy of a novel. She also places Chadha's story in the context of a debate on the future of the American constitutional system. Chadha is thus readable, and good, political science. Because her research related to very recent events, she had to rely heavily on interviews as well as court and other legal documents. Four individuals were central to her work: Jagdish Rai Chadha himself Public Citizen Litigation Group attorney Alan Morrison (who represented Chadha), Larry L. -Simms (who served in the Office of Legal Counsel in the Justice Department during the Ford, Carter, and Reagan administrations), and former Representative Eliott Levitas of Georgia. She had access to all of Morrison's files, and Simms 'provided a detailed account of the Justice Department's involvement in the cases and aided me in my effort to secure interviews with senior Justice Department personnel in the three Administrations."[100] What Craig's study may have lost in terms of access to some manuscript sources by having been written so soon is more than balanced by what she gained in terms of information and perspectives which might otherwise never have become part of the historical record, at least not to the extent seen here. The trail did not grow cold.[101]

From the outset, few doubted the significance of the Chadha decision. The Supreme Court not only declared the legislative veto unconstitutional, but called into question the constitutionality of about 200 statutes enacted in the past half century containing a legislative veto provision. As Justice Powell observed in his concurrence, "The encompassing nature of the ruling gives one pause." In 1984, speaking to a group of political scientists, Chief Justice Burger called Chadha the most important case decided in the 1982-83 term, "especially in the long run. Some say Chadha is one of the ten most important cases in our history. I'd say that is perhaps stretching it a bit, but Chadha is certainly among one of the fifty most important in our history."[102] The decision's conclusiveness led former Solicitor General Rex Lee, who was actively involved in the litigation, to call Chadha a "slam dunk" decision.[103]

Because of the technical nature of the litigation, some background on Chadha is in order. The case arose from Section 244(a)(l). of the Immigration and Nationality Act which authorized the Attorney General, in his discretion, to suspend the deportation of a deport-able alien. Under Section 244(c)(1), the Attorney General was required to report such suspensions to Congress. Section 244(c)(2) authorized either house of Congress by resolution to invalidate the suspension before the end of the session following the one during which the suspension occurred. The Attorney General discharged his responsibilities through the Immigration and Naturalization Service, part of the Department of Justice.

Jagdish Ral Chadha is an East Indian who was born in Kenya and who was lawfully admitted to the United States in 1966 on a nonimmigrant student visa. He remained in the United States after his visa had expired in 1972 and was ordered by the Immigration and Naturalization Service to show cause why he should not be deported. Through an attorney, Chadha then applied for suspension of the deportation order, and an immigration judge ordered the suspension. On December 16,1975, the House of Representatives exercised the veto authority reserved to it under Section 244(c)(2). Without action by either house of Congress, Chadha's deportation proceedings would have been cancelled after Congress adjourned in 1975 and his status would have become that of permanent resident alien. The House resolution was not like an ordinary law. That is, it was not submitted to the Senate and it was not presented to the President for his signature. Here lay the constitutional rub.

Why the House vetoed Chadha's suspension remains unclear. His was one of six vetoed, out of 339 suspension cases then before Congress. According to - Craig, "Although no one then, or now, knows for sure what the reasoning was, and Eilberg [Representative Joshua Eilberg, chairman of the Subcommittee on Immigration, Citizenship and International Law of the House Judiciary Committee] has refused to give any explanation (the files on the case were sealed by the committee, and.., no freedom-of-information requirement applies to Congress...) past action of the committee offers a possible explanation for the action." Because the use of nonimmigrant visas by persons who then seek to remain permanently in the United States is arguably unfair to those who wait their turn under the immigration rules, it is conceivable that the House was trying to reduce the number of such abuses. "Perhaps Chadha had meant all along to try to accomplish this too, but the fact remains that even if his intention had been to return to Kenya, he was not able now to do so because of events that had taken place since his departure."[104]

In all probability, Chadha's case reached the Supreme Court only because others were able to use it as a vehicle for an assault on the legislative veto. His case became a story not just about constitutional litigation but about "the politics of federal regulation, about Congress, about the president, about the courts, about interest groups, about the weak and the powerful---in short, it is a story about politics American-style."[105]Chadha's case became all these things in large part because of an attempt by Congressman Levitas and others to pass a "generic" legislative veto. Under this proposal, either house of Congress would have thirty days in which to veto any administrative rule adopted by an agency under the Administrative Procedure Act. Significant opposition came from the Justice Department. Antonin Scalia, then Assistant Attorney General for the Office of Legal Counsel, declared: "We are opposed to these bills, for reasons both of practicality and of constitutional principle."[106] He voiced objections previous administrations had made to the legislative veto since the device first appeared in 1932. From a President's perspective, the veto allowed Congress to make inroads into rule-making discretion it had delegated to the executive branch. From the perspective of a member of Congress, the veto maintained some congressional control in an era when delegation of legislative authority had become a practical necessity.

Opposition to the Levitas measure also came from Alan Morrison who headed the Public Citizen Litigation Group, which until 1980 was associated with Ralph Nader. Not only did the legislative veto seem to go against the separation of powers, but from the perspective of a "citizens lobby" the veto allowed interest groups to wield considerable influence on Capitol Hill. Morrison's interest in Chadha's case was provldential for both. The case acquired visibility and legal resources it mlght not otherwise have enjoyed, and provided Morrison witth "the weapon he needed" to continue the battle against the veto.[107]

For most of this century interest groups have been active in constitutional litigation.[108] Interest groups large and small sometimes develop their own cases, as was done by the National Association for the Advancement of Colored People in the 1950s. At other times groups submit amici briefs when another case raises an issue close to the group's concern. As illustrated by Chadha, groups can also assume control of an existing case. As Craig explains, The vast expansion of the agenda of U.S. politics in the 1960's and 1970's that added among many other items, consumer protection concerns, was accompanied by an equal growth in organized interest groups.... At the same time courts were increasingly willing, even eager, to seize upon controversial constitutional issues. This judicial activism, accomplished by lowering the standing and political-question barriers and allowing "class action" suits, has meant easier access to the courts and encouraged more groups to seek redress there. A receptive judiciary has prompted innovation in group litigation, and the publicity accorded each successful challenge has encouraged more groups to knock on the courtroom door. "What irony," Craig observes---"Ralph Nader's interest group working to benefit Ronald Reagan's presidency"[109]

The near unanimous ruling in 1983 against the legislative veto does not mean that the debate is over. In Craig's words, "If a majority of the Supreme Court continues to evaluate exercises of questionable congressional power under literal interpretation of the Constitution while, at the same time, it continues to evaluate delegations of congressional power to the executive under a more expansionist notion of the Constitution, Congress is unlikely to come out the winner."[110] Moreover, even the practical legality of the legislative veto does not seem to have been settled. Since Chadha, more than 100 laws have been enacted with the constitutionally dubious veto attached, many of them committee vetoes rather than one house vetoes.[111] As Craig concludes, "there is much to be learned from this long constitutional struggle over how a two-hundred-year-old document is applied in the world of today.[112] Like the other volumes surveyed here, Craig's points to the special place of the Supreme Court in the American political system. Over a century ago, in reflecting on a president's search for a new Chief Justice, the Times of London observed, "The Supreme Court of the United States is a unique institution. No other country possesses a tribunal endowed with such transcendent authority."[113] That observation remains true and assures continued attention to the "least dangerous" branch.

Endnotes

1. The volumes surveyed in this article are listed alphabetically by author below.

DONALD E. BOLES, Mr. Justice Rehnquist, Judicial Activist: The Early Years. Ames: Iowa State University Press, 1987, pp. xi, 149.

BARBARA HINKSON CRAIG, Chadha: The Story of an Epic Constitutional Struggle. New York: Oxford University Press, 1988, pp. ix, 262.

MICHAEL KENT CURTIS, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights. Durham, N.C.: Duke University Press, 1986, pp. xii, 275.

WILLIAM O. DOUGLAS, The Douglas Letters; Selections from the Private Papers of Justice William O. Douglas, ed. Melvin I. Urofsky, Bethesda, Md.: Adler & Adler, 1987, pp. xxiv, 448.

CHARLES FAIRMAN, The Oliver Wendell Holmes Devise History of the Supreme Court of the United States: Supplement to Volume VII; Five Justices and the Electoral Commission of 1877. New York: MacMillan, 1988, pp. xvii, 202.

CHARLES A. LOFGREN, The Plessy Case: A Legal-Historical Interpretation. New York: Oxford University Press, 1987, pp. ix, 269.

NEIL D. McFEELEY, Appointment of Judges: The Johnson Presidency. Austin: University of Texas Press, 1987, pp. xi, 199.

RICHARD POLENBERG, Fighting Faiths: The Abrams Case, The Supreme Court, and Free Speech. New York: Viking, 1987, pp. xiv, 431.

WILLIAM H. REHNQUIST, The Supreme Court: How It Was, How It Is. New York: William Morrow, 1987, pp. 338.

G. EDWARD WHITE, The Oliver Wendell Holmes History of the Supreme Court of the United States: Volumes III-IV; the Marshall Court and Cultural Change, 1815-35. New York: MacMillan, 1988, pp. xxi, 1009.

2. Attorney General George w. Wickersham, in a memorial address following Chief Justice Melville W. Fuller’s death, 1910. 219 U.S. xv.
3. Quoted in 1 C. Warren, The Supreme Court in United States History 1 (1926).
4. Five Justices is Fairman’s third contribution to the Holmes Devise History. Volume VI, Reconstruction and Reunion, 1864, Part One (1971) was one of the first volumes in the series to appear. His second, Volume VII, Reconstruction and Reunion, 1864-88, Part Two, was published in 1987.
5. Id., 95.
6. Fairman’s scholarly interest in Bradley is longstanding. See his "Mr. Justice Bradley’s Appointment to the Supreme Court and the Legal Tender Cases," 54 Harvard Law Review 977, 1128 (1941); "THE Education of a Justice: Justice Bradley and Some of His Colleagues," 1 Stanford Law Review217 (1949); "What Makes a Great Justice? Mr. Justice Bradley and the Supreme Court 1870-1892," 30 Boston University Law Review 49 (1950); "The So-Called Granger Cases, Lord Hale, and Justice Bradley," 5 Stanford Law Review 587 (1953); and "Mr. Justice Bradley," in A. Dunham and P. Kurland, eds. Mr. Justice (2d ed., 1964). Bradley also figures prominently in Fairman’s Mr. Justice Miller (1939).
7. A. Nevins, Abram S. Hewitt, with Some Account of Peter Cooper (1935).
8. Fairman, supra n. 1, xvii-xviiii; Fairman’s refutation of the Hewitt-Nevins view appears on pages 159-196.
9. Id. at 173.
10. Urofsky, supra n. 1, x.
11. For example, M. Howe, ed., Holmes, Pollock Letters, 2 vols. (1941), and Holmes-Laski Letters, 2 vols. (1953); The Letters of Louis D. Brandeis, 5 vols. (1971-1978).
12. Id., xxiii. The Douglas letters were not available to James Simon when he wrote his biography of Douglas, Independent Journey (1980).
13. Urofsky, supra n. 1, 413.
14. Id., at 44.
15. Simon, supra n. 12, 192.
16. Id., 124; compare to W. Douglas, The Court Years 1939-1975, 240 (1980).
17. Minersville Sch. Dist. v. Gobitis, 310 U.S. 586 (1940); West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).
18. 407 U.S. 297 (1943).
19. Douglas, supra n. 1, 144.
20. Id., at 201.
21. Boles delves, for example, into the controversy surrounding a memorandum Rehnquist wrote while clerking for Justice Jackson in 1952 concerning Brown v. Board of Education, Boles, supra n. 1, 95-103. This account compliments information contained in Richard Kluger’s Simple Justice 605-610 (1976). The existence of the memorandum became public knowledge during the 1971 hearings on Rehnquist’s nomination.
22. Boles, supra n. 1, ix, 19. See Jenkins, "The Partisan: A Talk with Justice Rehnquist," The New York Times Magazine, 28 March 3, 1985). For example, Boles concludes, "If there is virtue in consistency, then Justice Rehnquist is indeed a virtuous man. . . . Of course, if there is virtue in consistency, there is also no assurance that consistency will insure accuracy–accuracy in reading constitutional history or accuracy in reporting Court precedents. Nor does consistency guarantee a sense of what is fair and equitable, all of which are key elements in the concept of the due process of law. In short, consistency is no guarantee against wrongheadness." Boles, supra n. 1, 133.
23. A. Howard, "Justice Rehnquist–A Key Fighter in Major Battles," ABA Journal 49 (June 1986).
24. Shapiro, "Mr. Justice Rehnquist: A Preliminary View," 90 Harvard Law Review293 (1976). The Shapiro article is almost half the length of Boles’ book.
25. O. Fiss and C. Krauthammer, "The Rehnquist Court: A Return to the Antebellum Constitution," The New Republic 20 (March 10, 1982).
26. Rehnquist, supra n. 1., 7.
27. The Life of George Washington, 5 vols. (1904-1807).
28. Our Chief Magistrate and His Power (1916); Popular Government (1913).
29. Liberty Under Law (1922).
30. The Supreme Court of the United States (1928).
31. A. Mason, Harlan Fiske Stone (1956).
32. The Memoirs of Earl Warren (1977); A Republic, If You can Keep It (1972).
33. Rehnquist, supra n. 1, 8.
34. Youngstown Co. v. Sawyer, 343 U.S. 579 (1952).
35. E.g., M. Marcus, Truman and the Steel Seizure Case (1977).
36. Rehnquist, supra, n. 1, 94.
37. Id., at 95, 98.
38. Id., at 236
39. Id., at 249.
40. Id., at 319.
41. Id., at 318.
42. Id., at 300.
43. Id., at 293.
44. Id., at 265.
45. McFeeley, supra n. 1.
46. Id., at ix, 1.
47. E. Redford and M. Blissett, Organizing the Executive Branch: The Johnson Presidency 11 (1981).
48. J. Howard, Courts of Appeals in the Federal Judicial System (1981).
49. Id., at 90.
50. McFeeley, supra, n. 1, 49-49.
51. Quoted in id., at 80.
52. Quoted in id., at 87.
53. Quoted in id., at 120.
54. Id., at 3.
55. Id., at 137.
56. White, supra n. 1.
57. Id., at xvii, xviii.
58. Id., at 3.