Welcome Back, Justice Harrison?

Maeva Marcus and Christine Jordan

The conventional wisdom on the order of Justices has been that President Washington's fourth nominee, Robert Hanson Harrison of Maryland, declined the appointment and thus is to be excluded from the list of those who have served on the high bench. New evidence found at the National Archives by the staff of the Documentary History of the Supreme Court of the United States, 1789-1800, reveals that Harrison reconsidered, apparently at the renewed appeal of Washington, and went through enough motion (in classic contract terms, altered his position as a result of the offer) to give his heirs and assigns a claim to the compensation due for his services.

Harrison had been Washington's military personal secretary during - the Revolution, and the relationship had ripened into a close friendship thereafter. After the war, Harrison became chief judge of the General Court of Maryland and was still on that bench when Washington submitted his first nominations for the Supreme Court. The measure of Harrison's closeness to Washington is shown by the fact that he and John Rutledge of South Carolina were the only nominees to whom the President sent personal messages urging their acceptance of the appointment.

Harrison wrestled with his answer to Washington for several weeks. During this time, Harrison was named Chancellor of the state of Maryland. It took him only two days to write to the Governor declining this appointment. But whether to accept the nomination to the Supreme Court of the United States obviously caused him more anguish. When at last he decided to refuse the appointment, Harrison wrote to the President, on October 27, 1789, that he could not take the position, because of personal concerns. The arduous duties of an Associate Justice were incompatible with his poor health and pressing domestic obligations, Harrison wrote. Moreover, Harrison stated that his rejection of the nomination would not be detrimental to the country, since there were others more qualified than he to be Associate Justice. Hence he returned the commission as judge of the Supreme Court of the United States.

Washington, clearly disappointed with Harrison's decision, wrote to his dear friend once again. On November 25, the President sent back the commission with a letter that urged Harrison to reconsider. Not wishing to put too much pressure on him, Washington simply informed Harrison that Congress probably would amend the Judicial Act in order to relieve the Justices of the Supreme Court of some of the onerous tasks assigned them. This would allow Harrison time to attend to his personal affairs. Alexander Hamilton, perhaps with the President's prompting, also wrote to Harrison urging him to accept the appointment.

Although there is no document to prove it, Harrison must have decided to take the position on the Supreme Court bench, for in January, 1790, he began a journey to New York where the Court would hold its inaugural session on the first Monday in February. Only a week after leaving home, however, he became ill and wrote the following letter to Washington.

Bladensburg Jany. 21". 1790.

My dear Sir,

I left Home on the 14th. inst^t. with a view of making a Journey to New York, and after being several days detained at Alexandria by indisposition, came thus far on the way. I now unhappily find myself in such a situation, as not to be able to proceed further. From this unfortunate event and the apprenhension that my indisposition may continue, I pray you to consider that I can not accept the appointment of an Associate Judge, with which I have been honoured. What I do, my dear Sir, is the result of the most painful and distressing necessity.

I intreat that you will receive the warmest returns of my gratitude for the distinguished proofs I have had of your flattering and invaluable esteem & confidence–and that you will believe that I am and shall always remain with the most affectionate attchment

My Dear Sir,

Yr' most obed't & oblig'd fr'd & Sert

Rob: H: Harrison

Harrison returned home, where died on April 2, 1790.

The government apparently considered Harrison an Associate Justice of the Supreme Court, even though he never heard a case. In 1811 Harrison's daughters applied to the Treasury Department for the compensation due an Associate Judge for services from September 28, 1789 (the date of Washington's letter appointing Harrison) until January 21, 1790, when Harrison resigned because of illness. At that time, the government allowed only part of the claim, from November 25 (the date on which Washington urged Harrison to reconsider his declination) to January 21. When, however, the daughters, in 1820, applied for the remainder of Harrison's salary, for the period September 28 through November 25, 1789, the government approved the claim.

Although it is interesting to discover that Harrison's heirs received his salary, this fact should not qualify Harrison to be described as having served on the Supreme Court. The Senate confirmed Harrison's appointment and he eventually accepted the position, but Harrison never performed any duties assigned to a Justice. That he must now be given technical recognition as an official appointee hardly will be greeted with enthusiasm by Court historians who henceforth must account for him at least in a small footnote.

 

Skeleton in Mr. Jay's Closet?

Until the Supreme Court established an Office of Curator, all sorts of manuscripts and other memorabilia were preserved in unlikely places. One was a letter from the first Chief Justice–although written some seven years before he was named to that position–which is reproduced below. The letter itself has been previously printed, but without the brief paragraph which appears here in italics. The fact that the letter was expurgated for publication is interesting in itself, but more important perhaps is the fact that the unexpurgated original was found in a miscellany of "association items" in the Court, and now has found its way into a systematic inventory maintained by the Curator's Office.

Peter Van Schaack (or Van Schaick) was a brother lawyer at the colonial bar in New York, and although the Revolution made him and Jay political and ideological opponents, their relationship continued on a high plane of civility. In 1782 the Tory Van Schaack and the Patriot Jay were respectively in London and Paris, with Benjamin Franklin as the emissary between them. By this year, following the American victory at Yorktown and the beginning of peace negotiations, the war was obviously winding down and both men were beginning to think of picking up the threads of their professional careers at home. But for some, there was to be no reconciliation, conspicuously including Jay's brother mentioned in the expurgated paragraph reinstated in the text below.

The brother–Sir James–was, from the cryptic reference in the notorious paragraph, a regenerate, or born again, Loyalist. Up until April of 1782, he had been a zealous promoter of the American cause, although essentially in terms of reconciliation. Having determined that his plans for reunion could only get a hearing in England, he apparently arranged to be "captured" by British forces in New York and proceeded to London. For John, this amounted to betrayal, and he unburdened himself in the castigating comments in the paragraph in question. (Incidentally, the paragraph itself was quoted in Thomas Jones' History of New York During the Revolution, published in 1879.

But William Jay was determined, in the biography of his father published in 1833, to hide the suspected skeleton in the closet, and hence deleted the reference to Sir James in John's letter of September 17–as well as the inferred reference to the brother in Van Schaack's letter of August 11. It was not the last time the future Chief Justice was to be embroiled in a posthumous brouhaha; in the 1 860s his grandson John was involved in a three-way battle of editors over the reprinting of the famous Federalist papers originally written, in the heated campaign for New York's ratification of the Constitution in 1788, by Jay, Alexander Hamilton and James Madison. Grandson John Jay brought out an edition glorifying his ancestor's role in the essays, rebutting what he considered the exaggerated claims for Hamilton made in another edition prepared by Hamilton's son John. A third tendentiously-edited collection by Thomas Dawson, sniped at the third contributor, Madison, suggesting that rather than being considered the "father of the Constitution" the Virginian should be exposed as the father of the "rebel doctrine of secession."

Sic transit. The story of the rival editions, and rival motivations, of the Federalist will be dealt with on another occasion. As for John Jay the Patriot, Peter Van Schaack the Loyalist, and Sir James Jay the man in the middle, the modern reader must make his own judgments. As for the letter, casually coming to light as it has, the Supreme Court Historical Society herewith proceeds to correct William Jay, who left out the mooted paragraph, and Thomas Jones, who quoted it out of context.

Paris 17 Sept. 1782

Dear Sir

Doctor Franklin sent me this morning, your Letter of Aug. 11th last. I thank you for it. Aptitude to change in any thing never made a part of my disposition, and I hope makes no part of my character. In the course of the present troubles I have adhered to certain fixed principles, and faithfully obeyed their dictates without regarding the consequences of such conduct to my friends, my family, or myself: all of whom, however dreadful the thought, I have ever been ready to sacrifice, if necessary, to the public objects in the contest.

Believe me, my heart has nevertheless been, on more than one occasion, afflicted by the execution of what I thought, and still think, was my duty. I felt very sensibly for you, and for others; but as Society can regard only the political propriety of men's conduct, and not the moral propriety of their motives to it, I could only lament your unavoidably becoming classed with many, whose morality was convenience, and whom politics changed with the aspect of public affairs. My regard for 'you as a good old friend, continued notwithstanding. God knows, that inclination never had a share in any proceedings of mine against you–from such thorns no man could expect to gather grapes, and the only consolation that can grow in their unkindly shade, is a consciousness of doing ones duty, and the reflection that as, on the one hand, I have uniformly preferred the public weal to my friends and connections, so on the other, I have never been urged by private resentments to injure a single individual.

Your judgment and consequently your conscience differed from mine on a very important Question; but tho' as an Independent American I considered all who were not for us, and you amongst the rest, as against us, yet be assured, that- John Jay never ceased to be the friend to Peter Van Schaick. No one can serve two masters–Either Britain was right and America was wrong, or America was right and Britain wrong. They who thought Britain right, were bound to support her, and America had a just claim to the services of those who approved her cause. Hence it became our duty to take one side or the other, and no man is to be blamed for preferring the one which his reason recommended as the most just and virtuous.

Several of our Countrymen indeed left, and took arms against us, not from any such principles, but from the most dishonorable of human motives; their conduct has been of a piece with their inducements, for they have far outstripped savages in perfidy and cruelty. Against these men, every American must set his face, and steel his heart!

There are others amongst them tho' not many, who I believe opposed us because they thought they could not conscientiously go with us: to such of these who have behaved with humanity, I wish every species of Prosperity that may consist with the good of my country.

You see how naturally I slide into the habit of writing as freely as I used to speak to you. Ah my friend, if ever I see New York again, I expect to meet with the shade of many a departed joy–my heart bleeds to think of it.

You mention my Brother–If after having made so much Bustle in and for America, he has, as is surmised, improperly made his peace with Britain, I shall endeavor to forget that my father had such a son.

How is your health? How and where are your children? Whenever as a private Friend it may be in my power to do good to either, tell me; while I have a loaf, you and they may freely partake of it. Don't let this idea hurt you. If your circumstances are easy, I rejoice–If not, let me take off some of the rougher edges.

Mrs. Jay is obliged by your remembrance, and presents you her compliments–The health of us both is but delicate–our little girl has been very ill, but is now well. My best wishes always attend you, and be assured that notwithstanding any political changes, I remain, Dear Sir

Your affectionate Friend & Ser.

John Jay

 

His Honor and the Field of Honor

W.F.S.

The code of honor, so self-consciously adhered to in most of the nineteenth century, affected at least two members of the Supreme Court in the - course of their careers. For Stephen J. Field, toward the end of the century, it was essentially the code of the West, and indirectly involved the honor of a– well–a lady (see Judge Robert H. Kroninger's article, "The Justice and the Lady," YEARBOOK 1977). For Peter V. Daniel of Virginia, it was the code duello of the Old South, and although the details have never been confirmed, it apparently involved politics rather than a fair one, although one legend insists that a lady was involved.

Politics was certainly an adequate ground to provoke a challenge–witness the notorious duel between Alexander Hamilton and Aaron Burr, a few years before. Duels were fatal to a high degree–again, witness the soon defunct Hamilton and the unfortunate opponent of Mr. Daniel. Finally, duels were nominally illegal in most states–certainly in New York and Virginia; but the code of honor was held to represent a "higher law," and in any case the principals usually resorted to an adjoining state (New Jersey for Burr-Hamilton, Maryland for Daniel and his challenger, a political opponent not long remembered by history, by the name of John Seddon).

Burr, Hamilton and Daniel were practicing lawyers, sworn to uphold the established laws of their states; yet they did not hesitate to respond to the demands for satisfaction under the "higher law." Since the statutes of Virginia prohibited dueling, the Daniel-Seddon duel would be fought in Maryland. Maryland laws also prohibited dueling, but once the action was over, all parties (and any bodies) would be spirited back to Virginia. Technically, therefore, no crime would have been committed on Virginia soil; practically, no prosecution would be possible in Maryland, since the parties were not extraditable. (Why not extraditable? Honor, among other things; noblesse oblige; Q. E. D.) As for the soon deceased Mr. Seddon, he had assumed the risk, so to speak; and in any case, the only actionable crime would have been violation of the anti-dueling statute, at least in the cavalier states of the old South.

Peter Vivian Daniel had been born of good Virginia stock, which is to say that he was predestined to live by the code of honor. He followed the traditional Virginia course for getting ahead in the world, reading law under one of the leaders of the bar, in this case, Edmund Randolph, who had been the first Attorney General of the United States. He consolidated this position, shortly thereafter, by marrying Randolph's youngest daughter, Lucy. There remained the standard final step into an established career–politics. This was the exciting world of the Jeffersonian (and anti-Jeffersonian) age, and by temperament the 24-year-old attorney became a Jeffersonian. Self-confident, aggressive to the point of bellicosity, this young lion moved to Stafford County–and into immediate conflict with a Fredericksburg business man, John Seddon.

Whatever political issue actually provoked the challenge, it had more root in fact than the suggestion that 15-year-old Lucy begged Daniel not to fight the duel. No Randolph, male or female, walked away from challenges, nor did Peter V. Moreover, Daniel was, by all accounts, a cool one indeed. Numerous stories after the fact described the young lawyer as devoting much of the' two weeks before the encounter, practicing shooting at his own walking stick, stuck into the ground ten to fifteen paces away. Since Mr. Seddon, from what may be inferred from a later description, was decidedly broader than the walking stick, both Lucy and Peter could be reasonably sanguine as to the outcome.

Indeed, the portly Seddon went out of his way to present a good target. He showed up at the dueling ground resplendent in black pantaloons and a white waistcoat. The waistcoat was where the future Justice's ball pierced him–grievously enough that, soon after Seddon had been carried back to old Virginia, he was gathered unto his fathers. That was in 1808; two years later, with his law practice advancing, Peter married Lucy; and ten years later President James Madison nominated Daniel to be a judge of the United States District Court.

For the most part, dueling presented no embarrassment to a professional or a political career; bygones were allowed to be bygones. And yet–not quite, in the case of Justice Daniel. Almost from the outset, diehard political opponents began to spread rumors suggesting that Daniel had not lived up to the strict letter of the code of honor. The code required that both principals maintain total, formally polite, silence, and the story that got out through Richmond and Fredericksburg papers had Daniel commenting on the nice white line presented by Seddon's waistcoast. In a somewhat extraordinary action, both of the seconds to the duel denied the story.

When, in 1841. Daniel's nomination to the Supreme Court came before the Senate, someone may have fed the story of Daniel's by-then-established reputation for bellicosity to the opposition. Senator Samuel Southard of New Jersey, who had been a Princeton classmate of the nominee, called him unsuited by temperament for high judicial office because he was known to pursue his partisan controversies "to blood." This appears to have been nothing more than a shot in the dark (not to pun), and in due course the nomination was confirmed. Since the fatal encounter with John Seddon in 1808, Daniel had not provoked any more duels. But John Frank, his biographer (Justice Daniel Dissenting, Cambridge, Mass., 1964), notes that a decade later, in 1852, the Justice followed with sympathetic interest the dueling prowess of a nephew. Even by that date, the code of honor still prevailed.

Mr. Dooley Discovers a Unanimous Dissent

James M. Marsh

(The following gentle satire, with apologies to the late Finley Peter Dunne, first appeared twenty years ago in The Shingle of the Philadelphia Bar Association, and has been reprinted in various other journals and finally in the well-known book, A Second Miscellany-at-Law (London, 1973) edited by Sir Robert Megarry. The author, a former law clerk to Justice Robert H. Jackson, is presently a member of the Philadelphia firm of Labrum and Doak.–Ed.)

"Every one of them dissented" said Mr. Dooley. "It was unanimous."

"They's nine jedges on that coort, and, everyone of them dissented– includin' me brother Brennan, who wrote the opinion they're all dissentin' from."

"That don't make sinse", said Mr. Hennessy, "You can't have all the jedges dissentin'–it's impossible."

"Well, it may be impossible, but it happened anyhow," said Mr. Dooley, "And it's printed right here in the Coort's own Joornal of its Proceedings for February 25th."

"Read it for yourself:

"No. 28. James C. Rogers, petitioner, v. Missouri Pacific Railroad Company, a Corporation. On writ of certiorari to the Supreme Court of Missouri.

"Judgment reversed with costs and case remanded to the Supreme Court of Missouri for proceedings not inconsistent with the opinion of this Court.

"Opinion by Mr. Justice Brennan.

"Mr. Justice Burton concurs in the result.

"Mr. Justice Reed would affirm the judgment of the Supreme Court of Missouri.

"Mr. Justice Harlan, dissenting in Nos. 28, 42, and 59 and concurring in No. 46, filed a separate opinion.

"Mr. Justice Burton concurred in Part I of Mr. Justice Harlan's opinion.

"Mr. Chief Justice Warren, Mr. Justice Black, Mr. Justice Douglas, Mr. Justice Clark, and Mr. Justice Brennan concurred in Part I of Mr. Justice Harlan's opinion except insofar as it disapproves the grant of the writ of certiorari.

"Mr. Justice Frankfurter filed a separate dissenting opinion for Nos. 28, 42, 46, and 50."

"See what I mean", said Mr. Dooley. "Each and ivery one of them dissented in this No. 28, called Rogers varsus the Missouri Pacific. Even Brennan, J., who wrote the opinion for the Court. He signed Harlan's dissent. Me old friend Holmes would've sooner been caught with a split writ than to show up on both sides of a case like that."

"But Brennan only signed Part I, and he says 'except insofar as,' " said Mr. Hennessy, "don't that mean anything?"

"Sure it does," said Mr. Dooley. "It means Brennan dissents from Harlan, too. I guess he figgers one good dissent deserves another."

"Where was me friend Burton?" asked Mr. Hennessy.

"He's all over the place," said Mr. Dooley. "As they say, he concurs in the result– which means he likes the answer but he can't stand Brennan's opinion. Thin he concurs in wan part of Harlan, J., but he can't stand the rest of him either."

"How could they git in such a mess?" asked Mr. Hennessy.

"That's what Felix says––in twinty thousand words," said Mr. Dooley.

"Felix who?" asked Mr. Hennessy.

"Frankfurter," said Mr. Dooley. "He's a Havvard, and a perfesser at that; he gave the rest of them a free lecture in this case– and that ain't like most of them Havvards, they come pretty dear."

"Well, what happened to this fellow Rogers anyhow?" asked Mr. Hennessy, "and the Missouri Pacific?"

"Plenty," said Mr. Dooley. "Rogers gits his money, wich the supreme coort of Missouri said he couldn't have; and the Missouri Pacific gits to pay it, wich they would probably just as soon not do."

* * * * * * * * *

Sp. Ct. Brand...

Viewers of the documentary films, "Equal Justice Under Law," described in YEARBOOK 1978, have commented on the fine wine enjoyed by Chief Justice Marshall and his colleagues– some writing critically but most curiously. Did the Justices really live that well, and more particularly, what did they actually drink? Since the film makers and their consultants were at pains to authenticate all possible details, the public is assured that the gourmet selections were taken from life.

Ben Perley Poore, a voluminous Washington reporter for much of the nineteenth century, wrote as follows in his Reminiscences, published in 1886 but describing what was a long-established practice in 1837: "The best Madeira was that labelled, 'The Supreme Court,' as their Honors, the Justices, used to make a direct importation every year, and sip it as they consulted over the cases before them, every day after dinner, when the cloth had been removed."

* * * * * * * * * *

"How's come?" asked Mr. Hennessy.

"Well, pinitratin' all the joodicial gobbleydook, it's like this: Rogers was workin' on the tracks of the Missouri Pacific and he fell off a culvert; the jury gave him damages but the Supreme Coort of Missouri took them away."

"Then the Supreme Coort of the United States listened to the loiyers' argyments and gave Rogers his money back again. Me brother Brennan is supposed to tell the reasons why–at three hunderd fifty two U. S. five hunderd, which sounds like the odds against anyone but a Philadelphia lawyer understandin' the case.

"But Felix says 'Brennan, me boy, we shoodn't have took this case in the first place, we shoodn't have decided it in the second, and we shoodn't be ladlin' out the railroad's money anyway–it ain't becomin' to this high coort'. . .

"Then Harlan, J., says 'Ye're half right, Felix, but ye're wrong there where ye say we shoodn't decide the case; but I dissent from me brother Brennan givin' him the money, too.'

"And thin Brennan says 'Ye're half right, too, Harlan, and I agree with your Part I ''except insofar as"

"And so Brennan signed Harlan's dissent from Brennan's own opinion, and so did Warren, Black, Douglas and Clark, JJ., the same ones who signed Brennan's opinion in the first place."

"I tell ye, Hennessy, it's a demoralizin' situation. Here's the highest coort in the land, and they're all half right but none of them are all right, and they're tellin' on each other at that." -

"But what about me friend Stanley Reed?" asked Mr. Hennessy, "He didn't sign anybody else's opinion, did he?"

"No, he was the smart wan" said Mr. Dooley, "He quit."

"He quit'?" said Mr. Hennessy, "Just like that?"

"Just like that" said Mr. Dooley, "He voted loud and clear to back up the Supreme Court of Missouri–and then he quit."

"On February 25th he did it, right after they handed down this Rogers case. He walked out of that court that same day and he hasn't been back since."

"Well," said Mr. Hennessy, "I don't blame him, I'd quit too."

"That's the trouble with thim judges, though," said Mr. Dooley.

"What's that?" asked Mr. Hennessy.

"They don't quit often enough," said Mr. Dooley.

 

The Court's Officers

Barrett McGurn

The Supreme Court is often described as the one place in Washington where the official signing his work has actually performed it. The nine Justices screen the 4,000 cases which come in each year, choose 150 or so to be decided on the merits, listen to the litigating lawyers, argue the matters among themselves and then decide and write Opinions. Even so, a staff of 300 provides essential support and most notable among them are the Court Officers.

Most ancient of the Court Offices is that of the Clerk. It is only 48 hours younger than the Court itself. February 1, 1790, was the Court's first day of existence, a quiet one. Only four of the six Justices appeared, one less than a quorum, so all business on hand such as it was, was put over to the following day when the letters patent of the five sitting Justices were read and Richard Wenman was taken on as Crier. Next day John Tucker of Boston took the oath as Clerk. He or his associates must have been excited for the minutes were dated February 3rd, 1789. Only later someone thought to pen in the correct "1790" but, even then, he forgot to scratch out 1789.

Mr. Tucker served only a year, but the average period of employment among his fifteen successors has been well over a decade. Among those with especially long tenures have been Elias B. Caldwell (1800-1825), William T. Carroll (1827-1863) and C. Elmore Cropley (1927-1952).

The Clerk serves as the channel through whom lawyers reach the Justices but through the years a myriad of other duties have devolved upon the incumbent of the Office. When James R. Browning, now chief judge of the Ninth Circuit Court of Appeals (San Francisco), was Clerk of the Supreme Court, he combed the files for clues to the role of his predecessors and came on the following, dated September 8, 1863, and addressed to Daniel Wesley Middleton (Clerk from 1863 to 1880):

"I have just received a letter from Mr. Morrison informing me that I have been ejected from my rooms in his house.

"I was one of the first that took rooms in his house, and did not expect to be turned out first to accommodate a speculating greedy Yankee woman. But such appears to be the fact.

"As I must stay somewhere I wish you would do me the favor to make the best arrangement for me you can.

"I am very weak in the legs and do not like the notion of getting up to the third story, if possible to avoid it. If I cannot do better, I suppose I must climb."

The letter made clear that the Justice hoped either that Clerk Middleton could serve effectively as an advocate with Landlord Morrison or else as an adept apartment hunter (ground floor flats much preferred). It did not explain the Pennsylvania Justice's animus toward Yankees, however, nor was there a hint of how the house hunting finally worked out. Some solution inside the always lively Washington residential market must have been found, however, for the 69-year-old Justice Grier served additional seven years.

With scores of thousands of lawyers currently members of the Supreme Court Bar, a Clerk's full reservoir of tact often is called upon as he deals with the tense nerves of opposing counselors. It must always have been thus, as Clerk Browning's research turned up at another point. He found a letter of 1897 to Chief Justice Morrison R. Waite asking for access to documentation which Clerk J. H. McKenney, for some reason, had withheld. In a letter drenched in irony the Chief Justice was told:

"I would respectfully request permission to examine in the presence of your Clerk, the Court record in . . . I do not desire even to touch the paper, but merely to look at it as Mr. McKenney turns the pages over for me….

Mr. McKenney survived the storm. He was Clerk from 1880 to 1913.

On many occasions through the decades Clerks have held the Bible as a Chief Justice has sworn in a new Chief Executive for the country. Traditions are respected. As the Washington Post noted in 1958, the office of Clerk of the Supreme Court is rare in the nation's capital as "one of the few remaining (positions) . . . which require a swallowtail coat." The Clerk is always clad formally when he takes his place at the left end of the Bench.

Among Clerks of recent years have been:

C. Elmore Cropley. A lifelong Washingtonian, born here in 1894, he joined the Court staff at thirteen as a pageboy and, except for two mid-career years at the nearby Library of Congress and the Smithsonian Institution, never worked anywhere else. He was Clerk for a quarter of a century until his death in 1952.

Harold B. Willey, Clerk from 1952 to 1956. He served the Court for thirty-two years, first as an Assistant Clerk in 1924, then as Deputy Clerk, starting in 1941. There was a parenthesis just after World War II when he performed as American secretary of the Nazi war crime trials.

John T. Fey (1956-1958). Mr. Fey (pronounced Fie) came to the Court from the deanship of George Washington Law School. He left for the presidency of the University of Vermont.

John F. Davis (1961-1970). A Maine native and a cum laude graduate of Harvard Law School, he argued fifty cases before the Court. He was second assistant to the Solicitor General.

F. Robert Seaver (1970-1972). He came to the Clerkship from his position as a hearing examiner for the Civil Aeronautics Board; he returned to the same post. At other points in his career he was general counsel for the United States Maritime Administration and the Federal Maritime Board.

Michael Rodak, Jr. He has been Clerk since 1972, and has been in the Office of the Clerk, starting as Assistant Clerk, since 1956. Mr. Rodak saw service as a sergeant major in the United States Air Force in Europe during World War II, is a cum laude graduate in economics from the College of Steubenville and has law degrees from Georgetown.

Reporter of Decisions

If the Clerk entered the Court through the front door, the Reporter of Decisions made use of a side entrance. The Justices in 1790 knew that they needed a Crier and a Clerk but it was left to a self-starting free-lance, Alexander James Dallas (father of the man who gave his name to the Texas metropolis), to figure out that the Court also needed someone to transmit the Opinions to the reading public. Mr. Dallas was an immigrant from Bermuda and a naturalized citizen. He published a volume of Pennsylvania court decisions. When, in its second year, the Supreme Court moved from lower Manhattan to Philadelphia, Mr. Dallas published a second volume of his court reports, this time including both Pennsylvania and United States Supreme Court actions. Thus were born the United States Reports, a series of books filling much of a library wall and now well over the 400-volume mark.

(See the article, "Early Court Reporters," by Gerold T. Dunne in Yearbook 1976, for more detailed biographies of the first holders of this position.)

The inventive Mr. Dallas had further fish to fry as the young republic moved forward toward its destiny. He became Secretary of the Treasury and Secretary of War. His court-reporting shoes were filled next by William Cranch, a nephew of President John Quincy Adams. Mr. Cranch became the first to report Supreme Court decisions on a regular basis without the addition of extraneous materials. Mr. Cranch was Reporter of Decisions from 1801 to 1815. His first months were difficult. Justices would speak their Opinions from the Bench and let it go at that. Mr. Cranch complained that he was laboring with "much anxiety as well as responsibility," trying to get the correct nuances into what he passed on. In the later Cranch years Justices, to Mr. Cranch's relief, began supplementing spoken words with written texts in all cases considered difficult or important. Thus began a tradition followed now in every case. Henry Putzel Jr., who has been Reporter of Decisions since 1964, receives carefully drafted written texts on every Court Decision and on each concurring and dissenting opinion. Justices share each draft as Court Opinions and dissents go through one writing after another, sometimes as many as fifteen of them. No longer do a few words spoken from the Bench settle a case.

Mr. Cranch whose career included 54 years as chief judge of the District of Columbia was the last of the free-lance Reporters of Decisions. He was followed by a paid Court officer, Henry Wheaton (1816-1827). Mr. Wheaton accompanied Decisions with head-notes, an aid to lawyers, and, during the past half decade, a boon to news wire reporters who cover the Supreme Court. Until the 1970's the headnotes showed up only in the bound volumes but Chief Justice Warren E. Burger asked Mr. Putzel and his assistant, Henry Lind, to speed up the drafting of these summaries so that they could accompany Decisions at the moment when judgment is rendered. The often heavy extra pressures on Mr. Putzel and Mr. Lind have proved a godsend for reporters trying to extract the essence of a fifty-page packet for a news wire bulletin three or four minutes after a Decision s release.

Mr. Wheaton's pay as Reporter of Decisions $1,000 a year at the outset was not enough to keep him from moon-lighting for extra income. He gave up the job after eleven years to become Minister to Denmark. His successsor, Richard Peters, also wound up in the diplomatic corps (minister to the Kingdom of Prussia). Several Reporters of Decisions later, what might be called the modern era for the office, began; in 1874 Congress recognized that proper financing was needed. Hand to mouth deals made by Reporters of Decisions with publishers to produce the volumes of Court actions came to an end; with an initial appropriation of $25,000 Congress shouldered the burden of financing the issuance of the United States Reports. That terminated a quaint tradition of naming each volume of Court Decisions after that era's Reporter of Decisions (Dallas 1 to 4, Cranch 1 to 15, Wheaton 1 to 12, Peters 1 to 16, Benjamin Chew Howard 1 to 24, Jeremiah Sullivan Black 1 and 2 and John William Wallace 1 to 23. To this day Mrs. Henry Putzel mourns (not that bitterly) that lawyers do not cite volumes 376 of the United States Reports to the present as "Putzel one through 62.")

Mr. Putzel is thirteenth in the line going back to Alexander James Dallas. A Denver native and a former resident of St. Louis and of New Rochelle, N.Y., he is a graduate of Yale College and of Yale Law School. He began in Washington as an attorney for the Office of Price Administration. From 1945 to 1964 he was on the staff at the Department of Justice, serving after 1957 as chief of the Voting and Elections section of the Civil Rights Division.

The Reporter of Decisions nowadays checks references, goes over Opinions for style and, where need be, serves as Court grammarian. Mr. Putzel has framed on his wall a note Mr. Justice Oliver Wendell Holmes sent to one of his predecessors when a couple of questions of correct spelling came up. The Justice wrote:

'Principle,' of course, was a printer's error that I blush to have overlooked. 'Capitol' was deliberate ignorance–but I see from the

Century and my old stand-by, Worcester, that it should be 'Capital' which I never knew before and do a double blush. This is one of the few occasions on which I defer to the dictionaries."

The Marshal

Order in the courtroom was preserved in early years by United States marshals but, since 1867, the Court has had a marshal of its own as one of its officers. He sits at the right side of the bench during oral arguments. A wide share of the non-clerical functions of the Court–maintenance of the building, protocol duties, purchasing, and financial matters including even the signing of the Justices' salary checks–gravitate to him.

First of the court's own marshals was Colonel Richard Parsons who served five years. The current marshal, eighth in the line, is Alfred Wong, a 25-year veteran of the Secret Service whose duties used to include protection of the White House and of the Executive Office Building. Mr. Wong is in his third year in his present office. As in the case of the Clerks, various of the future marshals began their Court careers at the earliest moment, as pages. Frank Green, marshal from 1915 to 1918, started at the Court at the age of fourteen in the page corps. He became librarian in 1915. The present era of high professionalism in the library had not dawned. A pride of Mr. Green's family was that Uriah Forrest, a great grandfather, was an officer on the staff of George Washington. Another who came first to the Court as a page was Thomas Waggaman, marshal from 1938 to 1952. He was taken on as a page in 1911 and took his law degree from Georgetown in 1922. Mr. Waggaman had a spell also as the Crier.

Librarian

If Congress was slow to perceive the Justices' need for a properly financed Office of Reporter of Decisions, it was even less alert to the requirement of a good and adequately supervised law library. Chief Justice Earl Warren remarked in 1965 that a law library is as important to a court as a book collection is to a university, adding that "someone once noted that the library is the (very) heart of the university." In the Court's first decades Congress seemed to conceive otherwise.

No real provisions for a library were made for the Court during its first twenty-two years in New York, Philadelphia and Washington. In the Court's twelfth year, 1801, Congress considered whether the Justices should have access to the year-old Library of Congress. Not only was the decision negative but one Justice, as former Court Librarian Edward G. Hudon has related, went so far as to hope that "the Congressional Library would never be subjected to the abuse books in courts of justice (are) liable to."

Eleven years later the Congressmen relented. The Justices were allowed into the Library of Congress. What they found was not comforting. Much of the law section consisted of volumes of English law. That was not, of course, surprising, for the publishing of American court reports had begun in Connecticut only in 1789, the year before the United States Supreme Court first met. Two years later when the British burned the Capitol a good share even of the slim law section of the Library of Congress went up in flames, setting the Justices far back once again. Congress understood something of the problem but in 1816, 1826 and 1830 debates on whether to give the Justices their own law books ended in a refusal. It was only in 1832 that the then 42-year-old Supreme Court was assigned supervision of the Library of Congress' 2,011 law books, a condition being that any Congressman wanting to consult the volumes should be free to do so.

Chief Justice John Marshall must have been exultant for he got off a letter on August 2, 1832, to Mr. Justice Joseph Story, vacationing at home in Massachusetts, asking that son of Harvard what books ought to be included. The Librarian of Congress by that time must not have been doing a bad job for a follow up note from the Chief Justice to Mr. Justice Story on September 22 included information that most of Story's list already was to be found in the collection the Court was supervising.

The job of looking after the books was assigned at first to the Clerk. He allowed members of the Supreme Court Bar to borrow three books at a time, but he imposed a $1 a day fine for volumes retained beyond a "reasonable" period. Lost books were charged at the rate of double their estimated value. Congress gave $1,000 to $2,000 a year to add books. By 1860, there were 15,939 volumes in the collection, a handsome improvement. At that time a game of musical chairs was played with rooms in the Senate wing of the Capitol. The Senate moved into a new meeting hall and the Court took over the old Senate chamber, occupying it until the present building, the first of its own the Court has had, became available in 1935. The earlier Court chamber became the Court library. That too remained unchanged for 75 years.

Starting in 1845 the law books of the Library of Congress, all of them under Supreme Court control, were divided: some going to the homes of Justices where Opinions were written (the Justices having no other chambers), some kept for quick reference in the Justices' Senate conference room. By 1884 the Clerk must have found the Library chore a burden; it was handed over to the Marshal. Three years later, Henry DeForest Clarke, an employee of the Marshal, was assigned as the first in the chain of Court Librarians. Mr. Clarke had started at the Court as a porter. He remained as Librarian until his death in 1900. After a fifteen-year hiatus during which Frank Key Green (a former Court page) was Librarian, Mr. Clarke's son, Oscar DeForest Clarke, reinstituted a Clarke family dynasty among the court books. The second Librarian Clarke served thirty-two years, into the late 1940's.

During the first Clarke period in the joint Congressional and Court library the number of books rose to 101,868. At that time, at the turn of the century, the present building of the Library of Congress was completed. All but 34,860 of the books were taken from Mr. Clarke's control to become the heart of the Library of Congress' present collection of 2 million law books, a collection available to be drawn upon by the Justices as situations arise. The Justices' conference room collection remained behind as the core of what has become the Court's own current second- and third -floor collection of 230,000 volumes.

The second Librarian Clarke took over during World War I with a staff of two. By the time of the move to the present building in 1935 the Library team had grown to ten. Thirteen years later, in 1948, with Helen C. Newman overseeing the Court's store of books, Congress elevated the Court Librarian to the present dignity as fourth of the Officers, taking a place beside the Clerk, the Reporter of Decisions and the Marshal. When Librarian Newman died at the age of sixty-one Chief Justice Warren paid her a tribute from the Bench and the Court flag flew for three days at half mast.

Henry Charles Hallam Jr., a former page, was the fifth Librarian. His whole life work until his retirement in 1972 was at the Court. The sixth Librarian, Edward Hudon, formerly was Assistant United States Attorney for Maine, and is now Associate Professor of Law at Laval University in Quebec. Current Librarian, the seventh, is Roger F. Jacobs, former law librarian at the University of Detroit, and Professor of Law at the Universities of Windsor (Ontario) and Southern Illinois.

Administrative Assistant to the Chief Justice

Another official providing major support at the court is the Administrative Assistant to the Chief Justice. So far there has been only one, Mark W. Cannon, a holder of three graduate degrees from Harvard, who came as Administrative Assistant to Chief Justice Burger in 1972.

The need for an A.A. was clear at least from the time when former Governor Earl Warren of California succeeded Chief Justice Frederick Moore Vinson in 1953. The new Chief Justice found that he had two secretaries, three law clerks and two messengers. Accustomed as he had been in Sacramento to "layers of staff and line specialists," Chief Justice Warren was astonished. "That was my staff, that's all there was!", he marvelled as he told of it later.

The Chief Justice of the United States wears many hats. He chairs the Court, presides at oral arguments, leads the discussion of cases in the Justices' closed conference, and oversees the staff of 300. But beyond that he also chairs the Judicial Conference of the United States which looks after the affairs of the 100 federal courts, he supervises the Administrative Office of the United States Courts (the business manager of the federal court system), looks after the Federal Judicial Center (the federal court think tank and school), and serves as chancellor of the Smithsonian Institution (the world's largest museum complex). To do all that, Mark Cannon noted, the Chief Justice had the help of "a personal staff smaller than that of a freshman Congressman."

Congress in 1971 created a new position in the federal judiciary, the circuit executive. Seven hundred candidates applied and fifty-two were certified as eligible. Prominent among the fifty-two was Dr. Cannon, then director of the New York Institute of Public Administration, the nation's oldest center for research and training in the area of public affairs. Chief Justice Burger invited Dr. Cannon to go over with him the list of duties he and an A.A. would have to handle. It took most of a Saturday to go through the list. Dr. Cannon agreed that the Chief Justice needed someone to aid him; in fact he estimated the requirement at "about twenty professionals of varied skills and disciplines." He agreed to take the job and has been tirelessly busy at it ever since.

Thus far, with the A.A.'s help, a Judicial Fellows program has been added at the Court. Two or three Ph.D.'s and college professors, supported by foundation grants, pass a year in Court service, studying judicial practice and sharing current thought from a variety of academic research areas. Supplementing them are a group of interns, college students who receive no payment but generally are granted college credit for the months of Court work. Research is done on subjects covered in speeches of the Chief Justice. Help is given on such projects as the 1976 Pound Conference in St. Paul, an effort of judges and lawyers to foresee problems and solutions for American justice into the next century. The Court's first historical society has been created. Modernization including the first computer has been brought to the Court. The improvements made possible by creation of the position of A.A. to the Chief Justice go on and on.

The names of the 101 Justices of American history are writ large on the pages of the national story, but it seems only meet that some of these others who work behind and at the elbows of the Justices should be noted too.